Mid Mountains Legal Blog

What happens to Wills held by firms that close down?

Anthony Steel

If a law firm is sold, the Law Society of NSW should be informed who the new owner is and documents (including wills) held in safe custody should pass to the new owner. If the firm closes without selling the practice, documents they held in safe custody can be stored by the Law Society of NSW. However, this is optional. A firm may be closed without giving the documents they held in safe custody to the Law Society.

That is what happened to my client recently. He had reason to think that his father had made a will in his favour with a firm that subsequently closed. The deceased rented, and moved to a distant suburb after he may have made a will. The law firm had been sold and the Law Society did not know what had happened to the documents the firm had held in safe custody. A thorough search did not reveal a will and my client is now faced with the costly prospect of having to apply to the Supreme Court of NSW for letters of administration to be appointed the sole administrator and beneficiary of the deceased’s estate.

This problem would be far easier to address if the NSW Government established a central wills registry to which solicitors intending to close their practice must transfer all wills, enduring powers of attorney, appointments of enduring guardian and the like they held in safe custody.

It should be compulsory for legal firms to register all new wills, enduring powers of attorney, appointments of enduring guardian and the like with such a registry, which would hold information relating to Wills (incl testator’s name, address, date of birth and documents used to identify the testator). Although home made wills would still slip through the net, it should greatly reduce the work required to track down a will, representing a significant saving in legal costs to the next of kin.

Doing a new will revokes the previous will. Currently, it is possible for a person to make a second or subsequent will with a different solicitor without either solicitor being aware that an old will exists. There is nothing to stop the next of kin finding a copy of a revoked will and mistakenly assuming it is the current will. A central registry would also clear up any uncertainty as to whether a subsequent will exists.

Until that happens, you can be more confident that your will will not inadvertently go astray by giving your executor(s) a copy of the signed will and telling them where it is stored.

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