Legal Hypothetical: Location Location Location

A WILL seeks to ensure your testamentary intentions are upheld but what happens when the will itself goes missing?

That’s the situation facing Dave’s intended beneficiaries.

According to Dave’s will, the majority of his estate is left to his two children from his second marriage, Harriet and Daisy and his new de facto partner, Hazel.

However, he only leaves a small legacy to his three older children from his first marriage, believing they are already financially secure.

Dave keeps his original will at home, but after he is admitted to palliative care, his eldest son, Mike, removes the document.

When Dave dies, Hazel is unable to locate the will.

Hazel’s solicitor encourages her to try and locate at least a copy of the will.

Unfortunately, Dave had used a will kit, and there is no record of the will, nor any correspondence with a solicitor regarding his intentions.

Hazel is unsure who witnessed Dave’s will and in any event, they may not have been privy to the will’s contents.

Even if there was a copy of the will, proving that it is accurate and that the original will was not intentionally destroyed by the will-maker can be a lengthy and expensive process.

The solicitor explains to Hazel, that without a will, the NSW intestacy laws dictate how the estate is divided and depending on an assessment of her relationship with Dave, the solicitor advises that she may not be eligible to inherit, and the estate could be split equally among Dave’s five children, which goes against his clearly stated testamentary intentions.

This situation underscores the significance of adhering to proper procedures in drafting and safeguarding a will.

Solicitors provide secure safe custody services for crucial documents and generally keep an electronic version in a secured data environment.

It is also recommended that the testator informs the executor/s of the will’s location.

Thank you to Anthony Fogarty for his assistance with this column.

Email Manny Wood, principal solicitor at TB Law at or call him on (02) 66 487 487.

This column is only accurate at today’s date and cannot be relied upon as legal advice.

By Manny WOOD, Solicitor

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