NSW Will - Do Solicitors Usually Keep a Copy?

Discussion in 'Wills and Estate Planning Law Forum' started by Maxum Maximus, 27 October 2018.

  1. Maxum Maximus

    Maxum Maximus Well-Known Member

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    When preparing a will, do solicitors usually keep a copy in their files?

    Context:

    We understand that a will was drafted and signed for Mr X in the 1970s by F. W. Hall & Cedric Cullen of Harrogate House, 155 Castlereagh St, Sydney. In this will, we understand Mr X leaves his entire estate to his only child.

    Mr X is said not to have signed another will and is on track to pass soon. If this 1970s will is not found in Mr X's possessions then it is likely that the reviled and dreaded NSW Public Trustee may be engage. We should like to avoid that if at all possible.

    Thank you in anticipation for your response,
     
  2. Rob Legat - SBPL

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    Do they keep a copy? Almost certainly yes. What’s the likelihood of having a file going back 40 years? Almost nil.
     
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  3. Tim W

    Tim W Lawyer
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    Back in those days, it was common (if not compulsory)
    for wills to be held at (lawyers say "deposited with")
    the Supreme Court.

    It's also possible for a will to be kept at The NSW Trustee and Guardian,
    in the Will Safe.
    They also keep a Register of Wills, which is a list of where wills,
    not kept by The Trustee, can be found.

    Absent a will, you are not always and automatically looking at the Trustee being involved
    (except for that lacuna period between death and the grant of Probate/ Administration).
    Many intestacies are dealt with by people other than the Trustee.

    Reading your other posts, it seems that even this person's intestacy
    will end up fairly favourable to you personally.... subject perhaps to
    whoever is the 'we" that you refer to in your other posts.
     
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  4. Maxum Maximus

    Maxum Maximus Well-Known Member

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  5. Maxum Maximus

    Maxum Maximus Well-Known Member

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    @Tim W. Two follow on questions;

    (1) How would I go about find out if there indeed a will with either the Supreme Count or in The Public Trustee's List?

    (2) Were we to be looking at intestacy - is there away that I can petition for it to be dealt with by someone other than the Trustee?

    Many thanks...
     
  6. Tim W

    Tim W Lawyer
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    There are extensive contact details on the respective websites.
    Sure. One of the other eligible persons makes an application for Letters of Administration.
    But first, read up on lost wills (this link is not my firm).

    One other thing.
    I should clarify in respect of the PTG's register - that work is now largely privatised, and has been for some years.
    There's no one official central (government run, compulsory) registry of wills in NSW.
    It's therefore likely that their call centre people will tell you "Oh, no, we don't do that".
    Apologies for the lack of clarity.
     
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  7. Maxum Maximus

    Maxum Maximus Well-Known Member

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    thanks @Tim W.
    I've already contacted the NSW Supreme Court... fingers crossed.

    One potential snag; this person was married and subsequently divorced after the will made. It has been suggested that this may extinguish the will under some circumstances.
     
  8. Rob Legat - SBPL

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    In all Australian jurisdictions that I'm aware of, marriage automatically invalidates all pre-existing wills.
     
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  9. Tim W

    Tim W Lawyer
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    I agree with @Rob Legat - SBPL .
    In NSW, a marriage occurring after a will is made almost always causes the will to become revoked.
    The general exception to that is a will made (in the language of the act)
    "in contemplation of marriage".
    Lack of evidence will be your big problem proving that exception.

    Divorce on the other hand, does not automatically revoke will.
    That matters, if the former spouse is still alive.

    As in all things, there are numerous ifs, buts, maybes, and exceptions
    arising from the caselaw.
     
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  10. Rob Legat - SBPL

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    Good point by Tim W that I forgot to add. It's rarely used in my experience, but possible.
     
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