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NSW Lawyer Not Handing Over My Mother's Will

Discussion in 'Wills and Estate Planning Law Forum' started by William Carr, 1 November 2014.

  1. William Carr

    William Carr Member

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    My mother passed away in March of this year. She had a Will which in the hands of a law firm in Newcastle. I live overseas and when I went to Australia for the funeral I had decided to use a different wills and estate planning lawyer to process the Will. I had an appointment with the lawyer who holds the Will in order to collect it. However he refused to hand it over. I left without it and handed the whole thing over to my lawyer in Sydney. I was only in Aus for a few days.
    Now after all these months the lawyer in Newcastle is still holding the Will despite numerous requests from my Sydney lawyer to send it to him. He has only sent a copy, which is of no real use in finalizing all the details. I am thinking the first lawyer was simply a bit miffed at losing the job and is sticking as many spanners in the works as possible. He promises to send it but never does.
    With all the phone calls, letters and emails going out from my Sydney lawyer the bill is mounting up to quite a sum. All could have been avoided had the first lawyer simply handed over the Will to me or sent it to my lawyer.

    Does anyone have any suggestions as to what I can do about this?

    Points to note:
    One of my brother was named as executor in the Will but he passed away before my mother. His ex wife who was also my mother gaudian is now executor. There are 3 remaining sons. 2 living outside Australia.
     
  2. Sophea

    Sophea Well-Known Member

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    Has your sister in law, (the executrix of the will) requested it in writing from this law firm? She has the legal right and responsibility to obtain it in order to apply for probate and thereafter administer the estate.

    If this solicitor still refuses to hand over the Will without proper justification, maybe you should consider complaining to the NSW Law Society. There are certain professional standards that lawyers must adhere to.
     
  3. winston wolf

    winston wolf Well-Known Member

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    @Sophea is correct as executor your sister in law is the one who has the authority to get the will.
    As a beneficiary you only have the wright to a copy.
    I assume your sister in law was the executor of you brothers will?
     
  4. William Carr

    William Carr Member

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    Yes that is correct. Though they were divorced when he passed away and she is not mentioned in the will. I don't know why my present solicitor has not simply instructed her to go and personally collect the will. There is some lack of comunication somewhere.

    Thanks for the replies :)
     
  5. Tim W

    Tim W Lawyer

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    The choice of lawyer is not yours. This choice is available to your former sister-in-law, in her capacity as Executrix.
    Unless you are the Executor, this is the usual extent of your entitlement.
    Unless you are the Executor, this is not your responsibility.
    Ask your existing lawyer about the prospects of recovering some of this cost from the estate.
    It's not always possible, but sometimes it can be.
    Beyond that, because you have an existing lawyer, it's not reasonable for us, on this board, to get too far into it.
    Is that because she was appointed in the Will? Or in the course of the Probate appication?
    This may be inconvenient, but I do not see as a problem at law.
     
  6. Sarah J

    Sarah J Well-Known Member

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    Hi William,

    1. Was your sister-in-law named an executrix in your mother's will? If not, she may not have a right to grant of probate.
    2. Has anyone applied for grant of probate yet? If so, you can obtain a copy of the will by applying to the Probate Office in the Supreme Court.
    3. You do not have a right to obtain a copy the will from the solicitor's office. The will is confidential and kept so until probate is applied for, this is the case unless it was the instructions of the testator (will maker) or executor/executrix that it can be shown to others or unless their consent was obtained.
     

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