The Search for a Missing Will

The family had searched every drawer in the house.

They found insurance papers, old bank statements, passports that had expired years earlier and a folder containing appliance warranties. They even found a handwritten list of funeral songs.

But there was no will.

Everyone remembered the deceased saying that a will existed. One child believed it was stored with a lawyer. Another thought it was inside a safe-deposit box. A neighbour recalled witnessing “some legal papers” several years earlier, but could not remember who prepared them.

For the person expected to administer the estate, the uncertainty creates an immediate problem. Before applying for probate, the executor will ordinarily need to identify the deceased’s latest valid will and locate the original signed document.

A photocopy, scan or unsigned draft can provide useful clues, but it is not automatically a substitute for the original. If the original cannot be found, additional evidence and a more complex court process may be required.

The search should therefore be careful, documented and broad enough to rule out the most likely storage locations.

## Why Finding the Original Will Matters

A will records who should administer the estate and how estate property should be distributed. It may also contain provisions relating to guardianship, funeral wishes, trusts, personal possessions and substitute beneficiaries.

For a standard probate application, the High Court generally expects the original signed will and any codicils. A codicil is a formal document that changes or supplements the will.

The original matters because its physical features can provide evidence about its authenticity and condition. The court may need to see:

– The will-maker’s original signature
– The witnesses’ signatures
– The attestation clause
– Staples or other fastenings
– Handwritten alterations
– Page numbering
– Tears, markings or damage
– Whether pages appear to have been removed or replaced

A scan cannot always answer those questions.

If only a copy remains, the executor may need to explain what happened to the original and establish that it was not deliberately destroyed as an act of revocation.

## Begin With the Obvious Places, but Search Methodically

The most effective search is rarely a frantic one.

Choose one room or category of records at a time. Record what has been examined so that areas are not missed or repeatedly searched.

Common places to check include:

– A home safe
– A locked drawer or filing cabinet
– A desk containing financial records
– A folder marked “will,” “estate” or “personal documents”
– A fireproof document box
– A bedside cabinet
– Boxes stored in a garage or attic
– A safe-deposit arrangement
– Papers kept with passports and birth certificates
– The deceased’s office or business premises

Look inside envelopes even when the label appears unrelated. People sometimes place a will inside an ordinary stationery envelope or store it with property documents rather than estate-planning papers.

Do not throw anything away during the search. A letter, invoice or business card may identify the person who prepared the will.

## Search for Clues, Not Just the Document

Even when the will itself is absent, supporting records can reveal where it may be stored.

Look for:

– Legal invoices
– Appointment cards
– Letters discussing estate planning
– Emails mentioning a will
– Bank payments to a legal practice
– Notes containing an executor’s name
– Copies of earlier wills
– Business cards
– Safe-deposit correspondence
– Storage receipts
– Letters to beneficiaries
– Documents referring to a codicil

A payment listed on a bank statement may help identify the office that prepared the document. An old email may confirm that the original was placed in secure storage.

Search recent records first, but do not ignore older documents. A will signed twenty years ago may still be the latest valid will.

## Contact the Deceased’s Lawyer

Before probate is filed, an original will is commonly held by the legal practice that prepared it.

Ask close family members whether they know which lawyer or office the deceased used. The answer may be found in correspondence relating to property purchases, relationship agreements, trusts or earlier estate matters.

When contacting a legal office, provide enough information for a reliable search, such as:

– The deceased’s full legal name
– Former or alternative names
– Date of birth
– Last address
– Date of death
– Your name and relationship to the deceased
– Your reason for making the enquiry

The office may require proof of death and identification before confirming what it holds.

Confidentiality obligations continue after a client dies. A lawyer may not disclose the will’s contents or confirm detailed information to every person who asks. The office will usually need to establish whether the requester is an executor, authorised representative or other person with a proper basis for access.

New Zealand court guidance notes that a lawyer holding a will may refuse a request to inspect it where disclosure would conflict with client-confidentiality requirements. citeturn438686search0

If the original is held by a lawyer, arrangements can be made for it to be released for the probate application, usually after the executor’s identity and the death have been confirmed.

## What If the Legal Practice Has Closed?

A closed office does not necessarily mean the will has disappeared.

Client documents may have been transferred to:

– Another legal practice
– A successor practitioner
– A records custodian
– A professional regulatory body
– A secure storage provider

Check old correspondence for notices about mergers, office closures or transferred files. Search under the names of individual lawyers as well as the former practice name.

The lawyer who prepared the will may have moved to another office and may know where the stored originals were transferred.

Keep a written record of every enquiry, including the date, the person contacted and the response received.

## Ask the Named Executor

A copy of the will may name an executor who already knows where the original is held.

The will-maker may have given that person:

– A copy of the will
– A storage receipt
– The contact details of the drafting lawyer
– A sealed envelope
– Instructions for locating important documents
– Access information for a safe or document box

Do not assume that the oldest child, surviving partner or closest relative is the executor. The appointment must be confirmed from the will.

If several executors are named, contact all of them. One may have information that the others never received.

## Check With Accountants and Other Professional Advisers

An accountant, financial adviser or trust administrator may not hold the original will, but they may know who prepared it.

Estate planning often overlaps with:

– Tax planning
– Business succession
– Trust administration
– Property ownership
– Retirement planning
– Relationship-property arrangements

A professional adviser may have a copy in their records or correspondence identifying the legal office involved.

They may still need evidence of authority before releasing confidential information. The purpose of the initial contact is often simply to ask whether they can help identify where the will was prepared or stored.

## Search Digital Records Carefully

The deceased’s computer, email and cloud storage may contain:

– A scanned copy
– An unsigned draft
– Correspondence with the drafting lawyer
– Calendar appointments
– Storage instructions
– An electronic invoice
– A photograph of the signed document

Digital evidence can be extremely useful, but access must be handled lawfully.

Being a family member or proposed executor does not automatically give a person unrestricted authority to use the deceased’s passwords or impersonate them online. Avoid sending messages as though the deceased were still alive.

Where access is already lawfully available, preserve relevant files without altering their metadata or deleting surrounding correspondence.

A document labelled “Final Will” may still be an unsigned draft. Check whether the digital file shows signatures and witnessing, and search for later versions.

## Look for Codicils and Replacement Wills

Finding one will does not end the search.

The executor must make reasonable efforts to establish whether a later will or codicil exists.

Check:

– The date of the document
– Whether it refers to earlier wills
– Whether later legal appointments occurred
– Whether the deceased mentioned updating the will
– Whether major life events happened after signing
– Whether a second document-storage location existed

Marriage, separation, the birth of children, property changes and the death of a beneficiary may have encouraged the deceased to update their arrangements.

Do not decide that an old will must be invalid merely because circumstances changed. Preserve it and obtain advice about its legal effect.

Similarly, do not discard handwritten notes. They may not satisfy the ordinary will-signing requirements, but in some circumstances a court can consider whether a document should be recognised as a will despite a formal defect.

## Can You Obtain a Will From the High Court?

The High Court will not hold every will made in New Zealand.

A will is ordinarily filed with the court when someone applies for probate. Once a probate application has been filed, the will becomes part of the public court record and a person may request access or a copy. citeturn438686search0

This means a court search is useful when:

– You suspect probate has already been filed
– Another executor may have applied
– You are researching an older estate
– You want to confirm which will was admitted to probate
– You need a copy of the probated will

To assist the search, provide as much identifying information as possible:

– The deceased’s full name
– Alternative or former names
– Last residential address
– Date of death
– Approximate date probate may have been granted
– The court registry, if known

Most High Courts retain probate files for a limited period before older records are transferred to the national archive. citeturn438686search0

A court copy proves what was filed in that probate proceeding. It does not necessarily help where nobody has yet applied for probate and the original remains in private storage.

## Searching for an Older Will

Older probate records may be held by the national archive rather than the High Court.

Digitised historic probate files can include:

– The will
– Probate documents
– Executor affidavits
– Estate-administration records
– Names of beneficiaries
– Information about the deceased’s property

Some older probate records have been digitised and can be searched remotely, while others may require an archive request or in-person inspection. citeturn438686search22

Be careful to distinguish an old probate record from the current estate. A will filed for someone with a similar name may belong to a different person.

Use dates, addresses, occupations and family details to confirm identity.

## What If You Find Only a Photocopy?

A copy is valuable evidence. Preserve it carefully.

Do not write on it or assume that it can simply be filed as though it were the original.

Record:

– Where the copy was found
– The date it was found
– Who found it
– Whether it was attached to other papers
– Whether it appears complete
– Whether anyone knows where the original was stored
– Whether the deceased kept originals or copies in that location

Use the copy to identify:

– The drafting lawyer
– The named executors
– The witnesses
– The date of signing
– Any storage references
– The beneficiaries
– Whether codicils are mentioned

Contact the witnesses where appropriate. They may remember the signing or know who retained the original.

If the original cannot be found, the executor may need to apply for a grant based on a copy or other evidence of the will’s contents. This is more complicated than ordinary probate.

## Was the Missing Original Deliberately Destroyed?

A missing original can raise a difficult legal question.

Where a will was last known to be in the will-maker’s possession but cannot be found after death, it may be argued that the will-maker deliberately destroyed it to revoke it.

That is not the only possible explanation. The document may have been:

– Lost during a house move
– Accidentally discarded
– Destroyed by fire or flooding
– Removed by another person
– Misfiled
– Left with an unidentified lawyer
– Damaged during a natural disaster
– Stored somewhere nobody has yet searched

The executor may need evidence showing what probably happened.

Relevant evidence can include:

– The deceased’s statements about the will
– Their relationship with the beneficiaries
– Copies retained by others
– Correspondence with the drafting lawyer
– Evidence of the deceased’s document-storage habits
– Searches of the home and professional records
– Testimony from witnesses
– Evidence that the deceased continued to regard the will as current

New Zealand court rules allow the court to require proof that a missing will was not revoked. citeturn438686search25

Do not assume that a photocopy automatically governs the estate, but do not assume that the estate is automatically intestate either.

## What If No Will Can Be Found?

After a thorough search, it may become necessary to administer the estate on the basis that no valid will can be proved.

In that situation, someone with legal priority may apply for letters of administration on intestacy. The estate is then distributed under the statutory intestacy rules rather than according to family assumptions about the deceased’s wishes.

Before taking that step, document the search fully.

A search record should include:

– Every property and storage area examined
– All legal practices contacted
– Professional advisers contacted
– Family members questioned
– Court and archive enquiries
– Digital records searched
– Copies or drafts discovered
– Information from potential witnesses
– Dates and results of each enquiry

This record may become important if a will appears later or someone challenges the intestacy application.

## What If a Will Is Found After Administration Begins?

Stop and obtain legal advice immediately.

Do not conceal or destroy the document, even if distribution has already occurred or the newly discovered will produces an unpopular result.

The consequences depend on:

– Whether the document is valid
– Whether it is later than the document already used
– Whether probate or administration has been granted
– Whether assets have been distributed
– Whether beneficiaries received payments in good faith
– Whether the new document revokes earlier wills

The court may need to revoke or amend an existing grant and issue authority based on the newly discovered will.

Continuing to distribute after a credible later will has appeared can increase the executor’s exposure.

## Protect Every Document You Find

During the search, treat each possible testamentary document as evidence.

Do not:

– Remove staples
– Attach new staples
– Use adhesive tape
– Write notes on the pages
– Separate attachments
– Place marks beside clauses
– Destroy earlier wills
– Edit electronic files
– Throw away handwritten instructions

Store originals flat, dry and secure. Use a separate note to record when and where each document was found.

The search for a will is not simply a hunt for a piece of paper. It is an investigation into the deceased’s final legally effective intentions.

A disciplined search may feel slow when banks, relatives and creditors are waiting. Yet the cost of searching properly is usually far smaller than the cost of administering the estate under the wrong document.

## Frequently Asked Questions

### 1. Where are wills most commonly stored in New Zealand?

Original wills are often held by the lawyer who prepared them or stored in a home safe, secure filing cabinet, safe-deposit arrangement or document-storage facility. Copies may also be held by executors, accountants or family members.

### 2. Can anyone ask a lawyer for a copy of a deceased person’s will?

A person can make a request, but the lawyer may not be permitted to disclose the will or its contents to everyone who asks. The requester may need to provide proof of death, identification and evidence of their authority or proper interest.

### 3. Can I obtain a will from the High Court?

A will becomes part of the public court record when a probate application is filed. A person may then request access or a copy from the court. The High Court will not hold a will that has never been filed in a probate proceeding.

### 4. Is a photocopy of a will legally valid?

A photocopy is not automatically treated in the same way as the original signed will. It may be possible to seek probate using a copy, but evidence will generally be required to establish the will’s contents and explain why the original is missing.

### 5. What should I do if I find several wills?

Preserve every document and compare their dates. Search for codicils and later documents, but do not destroy the older wills. Legal advice may be required to determine which document is the latest valid will.

### 6. What happens if the original will was destroyed accidentally?

A court may be able to recognise the will through a copy or other evidence if its contents and validity can be proved and the destruction was not an intentional revocation. The circumstances will require detailed evidence.

### 7. What happens if no will can be found?

If no valid will can be proved after a thorough search, the estate may need to be administered under the intestacy rules. An eligible person may apply to the High Court for letters of administration.

### 8. What should happen if a will is found after the estate has been distributed?

The document should be preserved and legal advice obtained immediately. The existing grant may need to be reviewed, and questions may arise about recovering distributed property or correcting the administration.