Lost Will

By Graeme Heckenberg

We recently had a case involving a lost will. Our client was a cousin of the deceased, who had never married or had children and was very close to his cousin throughout his life.

Our client contacted her local suburban solicitor and sought advice. She was informed that as there was no will the matter had to proceed as an intestacy and she would receive nothing as she was a cousin. To complicate matters a neighbour alleged he had a power of attorney of the deceased and had access to the property and was intercepting the deceased’s mail.

The neighbour challenged our client when she attended the deceased’s home and acted as if he was in control of the deceased's assets. He informed her that, as there was no will she was not entitled to any of the deceased’s property because she was not the deceased’s wife, sister or daughter. Our client was concerned the neighbour may have been contemplating interfering with the estate of the deceased. She was concerned and felt sure the deceased would have made provision for her and expressed these concerns to her daughter.

The daughter was aware that we had successfully acted for her husband in the past on a no win no fee basis and encouraged her mother to seek our advice. We recommended two avenues of action to challenge the intestacy argument. First try to locate the missing will as if it was located our client would not need to mount a court case to inherit. Second, if the will could not be found, to mount a legal argument on the principles of equity and on the fact that a will had been made but could not now be found.

It has been our experience that people often make a will or an informal document detailing their last wishes and intentions and put the document in a place they regard as secure. In this case a search of the deceased's home did not reveal the missing will. From conferences with our client and members of the family we were sure the deceased had secreted his will and recommended a thorough search of the house be undertaken a second time. Again no will was found. At the urging of our principal solicitor the garage was searched and in the rafters of the building a tin was found with a will naming our client Executrix and sole beneficiary of the deceased’s will. We were then able to obtain a Grant of Probate of the will and our client received her full inheritance.

Finally, our client then informed the neighbour that if he entered the property again he would be charged with trespassing!


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