Where should I store my Will?
When it comes to storing your Will, you usually have two choices. If you have chosen to have your Will drafted by a law firm like Murnane Legal, the firm will have safe custody facilities (on-site or off-site) to store important documents like your Will and protect them from fire and water damage.
Alternatively, if you have drafted your own Will, you will have to store it yourself.
There are a number of reasons why it is important to securely store your original Will.
The main reason is the Supreme Court requires the original Will to grant Probate. If the original Will is damaged, has unwitnessed alterations or has been tampered with, the Supreme Court will issue a requisition to the Executor/s requesting information regarding the damage, alterations or tampering.
When a requisition is issued by the Supreme Court, the response must be by way of Affidavit (a written statement explaining what happened). Drafting an Affidavit requires a lawyer’s time and skill and can quickly run into the thousands of dollars, especially when multiple Affidavits may be required by the Supreme Court.
Storing the Will with a lawyer reduces the likelihood that the Supreme Court will issue a requisition, or that the Will gets lost.
From my experience, when a Will maker has arranged to store the Will themselves, quite often the original Will is lost. If a Will is lost and cannot be found by the Executors, the presumption of the Supreme Court is that the Will maker has destroyed the Will and therefore it is revoked.
When this occurs, the Executors will be required to rebut this presumption of destruction by providing evidence that:
The Will existed
The Will revoked previous Wills
The presumption of destruction by the Will maker is overcome.
There also must be evidence of the terms of the Will, and there must be evidence of due execution of the Will. Compiling this evidence can be difficult and likely require the assistance of lawyers, costing time and money.
To provide this information to the Supreme Court, a hearing in front of a Judge is usually required, at which point you will need to engage a Barrister to appear on behalf of the Estate. The cost of this process can quickly run into the thousands (and tens of thousands) of dollars.
What else can go wrong when a Will is stored at home?
Other scenarios I have seen when the original Will is stored at the Will maker’s home include:
A disgruntled beneficiary or family member may unlawfully tamper with the Will
The Will maker makes amendments to the Will incorrectly and informally. Unknowingly, they have caused more work later on and extra costs for their Estate to explain these informal amendments to the Supreme Court.
Ultimately, it is always a good idea to leave your Will in the safe custody of your lawyer.
