We have discussed the need for planning for your future but once a Will has been created where will you store it? If a Solicitor has prepared a Will they often provide to store your Will, or you can take your Will home and keep it with your important documents. However what happens if your Will is lost or misplaced?
Allen James “Jim” North died in June 2011 aged 83. He never married, had no children, his parents pre-deceased him and his only sibling died unmarried and childless in 1978. His estate was valued at $5 million dollars when he died.
He had a red folder, which was marked AJN’s Will containing a series of wills made by Jim over the last six years of his life. Jim had also completed the following note which he stored in the folder stating that if he died failing to make a valid Will he would be described as dying “Intestate” this note ended:
“the formal making of a detailed Will is imperative, and has, with guidance from Christopher Bone, (his cousin and Lawyer) been commenced.”
One of these 2008 drafts was executed as a Will with William and Suzanne Lawrence as witnesses. This document is in the file but it is torn in half, which normally indicates that it had been revoked. This Will contains some typing errors. Jim used an electronic typewriter with a golf ball so that he would produce a clear original typed script and the copies would be carbon copies. It was argued that Jim was meticulous and detailed by nature and on the balance of probabilities he would not have wanted to die intestate.
Jim had no close relations when he died. If he died without a Will the rules of intestacy dictate that several more remote relations would inherit his estate. Some of them came to Court alleging that Jim died intestate.
Jim carried a leather satchel with him wherever he went, which was thought to contain his most important papers. After he died his relatives searched his house and safe deposit box but couldn’t find the satchel. It is possible that an original will was in the satchel and the satchel has been lost.
The Court was told of a conversation that Jim had two weeks before he died. Where he discussed his assets and how he intended to leave his estate. This conversation ended with Jim stating
“Yes, I have prepared [a Will] and it is all done.”
Five matters must be established when probate of a lost will is sought.
(1) That there actually was a will;
(2) That that will revoked all previous wills;
(3) That the presumption that when a will is not produced it has been destroyed is overcome;
(4) Evidence of the terms of the will; and
(5) Evidence of due execution.
The Court was satisfied in the absence of any contrary evidence that Jim had created a Will that was in the same terms as the 2009 Will witnessed by William & Suzanne Lawrence. That Will was subsequently lost so the Court granted probate on the 2009 Will.
It is important that you create a valid Will in order that your wishes regarding your estate are met. Equally your Will must be easy to find when you die so your wishes can be followed.