Deceased estate and probate law

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Deceased Estates Blog

Western Australian Law as at date of publication


Locating and receiving an original will?


It is very important that significant efforts are made to locate the original of the last valid will of a deceased person when you are considering applying for a grant of probate or letters of administration in Western Australia or administering the estate of the deceased.

If the original will cannot be found a presumption ordinarily arises at law that the will was destroyed by the executor/executrix with the intention that it be revoked by him so that it is no longer valid¬†(“the presumption of destuction”).

In some cases it may be important to locate more than the last will of a deceased person (e.g. where the last will may be invalid or where other wills show the long term testamentary intentions of the executor/executrix say in cases where an Inheritance (Family and Dependants Provision) Act claim is to be made.

Some of the enquiries that could be made to successfully locate wills (including copy wills which themselves may be important) are with:

– the Public Trustee (WA) –¬† they have a “will bank”

– the deceased’s lawyer or lawyers in the deceased’s area

– the deceased’s accountant

– the deceased’s bank particularly where a safety deposit box is held

– the deceased’s close family and friends particularly anyone whom may have been named as the deceased’s executor

-the deceased’s home or office – searching places where important documents may have been left e.g a safe or filing cabinet or special documents folder

-by advertising to see if anyone is aware that a will has been left, including in “Brief”, the lawyers magazine

– Public Trustee companies such as Perpetual Nominees or Plan B.

Sometimes it may be clear where the original will however the holder of the will is unwilling to deliver it up. Legal advice should be obtained in these circumstances as it may be possible amongst other things to ask the court to settle a citation that a person lodge an original will at the Supreme Court Registry.

(Valid 31/5/12)

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