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Lost wills – how far do we search?

In 2016, Queensland Law Society recommended that the Government establish a digital wills register, to allow practitioners to log the details of wills in their safe custody.

This was intended to provide a central repository to overcome the difficulties in ensuring that the most recent will of a testator was the one used to administer the estate.

Although the Society received a positive response to the proposal, no register was established by the Government, and the private sector has moved to fill the void.

Several privately-operated document registries have sprung up, and given the relatively small set-up costs we can expect more of them. As they operate in a largely unregulated space, it is inevitable that the way they work will clash somewhat with lawyers and their obligations to clients.

Queensland Law Society has received reports of registries broadcasting untargeted requests to locate missing wills to large numbers of firms without any reason to think that those firms hold the document.

If your firm receives such a notification and considers that it may hold a relevant document, the executor should be informed, not the informant registry. The fact that you hold a will is confidential to the testator during their life, and thereafter to the executor or persons with an entitlement to view a copy.[1]

Naturally, should the practitioner recognise the name of the client, the standard obligation to check their records and safe custody would apply. A practitioner is also reminded of the duty to search out executors once the practitioner is satisfied that the testator has died.[2]

The issue is of course complicated by virtue of the fact that on receiving such an email, a practitioner is on notice and may be seen to have an obligation to search their records and safe custody to see if they do have the will. Depending on the age of the will, the firm’s records system and where safe custody documents are stored, this can be an expensive and time-consuming exercise.

Practitioners in receipt of unsolicited emails from private document registries would be well-advised to approach the matter with caution. If a practitioner recognises a name on the list or otherwise believes they have a will on the list, they should immediately check their storage to confirm. If they do have the will, then initial enquiries should be made of either the will maker (if alive) or the personal representatives of the deceased.

Should they be unable to contact those parties, a practitioner may consider enquiring of the registry in question the following:

  • On whose authority do they make the request?
  • On what basis does the registry consider it has the right to the information?

If the practitioner has no reason to believe they have a will on the list, it may be prudent for the above enquiry to be made prior to any search of their records/storage facility. They may also enquire as to what evidence has led the registry to conclude that the recipient practitioner may have a copy of the will in question, and advise the registry that:

  • until such time as the registry responds to the enquiry, no search of the firm’s records will be made, and
  • if the registry does not respond within seven days, the firm will presume the request has been withdrawn and take no further action.

Unless and until the Queensland Government creates a digital will registry, private operators will continue to fill the void, and practitioners will be forced to deal with these requests.

In the long run it may simply be more efficient to block emails from such registries, and only respond to lost will enquiries that come through the appropriate channels.

Shane Budden is a Special Counsel, Ethics, with the Queensland Law Society Ethics and Practice Centre. The author would like to thank colleagues Stafford Shepherd, Grace van Baarle and David Bowles for their input.

Footnotes
1 S33Z of the Succession Act (Qld) obliges the holder of a will, purported will or revoked will to permit inspection by specified classes of potential beneficiary. If a practitioner knows of a will relevant to an application for probate they are entitled to lodge it with the court if unable to obtain instructions from an executor to do so.
2 Hawkins v Clayton (1988) 164 CLR 539.

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