Losing a loved one is always hard. Facing the possibility that a family member is hiding their will makes the situation even more difficult. If you find yourself in this predicament in New Zealand, it’s crucial to approach the matter with caution, understanding your legal rights and the steps you can take to ensure the deceased’s wishes are honoured. Here’s a practical guide to navigating this delicate issue.
This article addresses the scenario where you believe someone has taken and is actively concealing a will, likely because they stand to benefit under an earlier will or under the intestacy rules. If a family member admits to holding the will but refuses to let you see a copy of it, you should instead read the free guide to obtaining a copy of a will.
On this page
- Legal consequences of a lost, stolen or destroyed will
- Find a good lawyer
- Lodging a caveat with the High Court’s probate registry
- Applying for a search order
- Applying for a section 54 order
- Obtaining a copy of the missing will
- Reconstructing a will from recollections
- Document everything
- Exercise caution towards the person suspected of holding the will
- Conclusion
Legal consequences of a lost, stolen or destroyed will
If the deceased destroyed their own will, it’s considered revoked, and their previous will (if any) or the intestacy rules would apply. However, if the will has simply been lost, or if someone else has stolen or destroyed the will without the will-maker’s consent, it might still be possible for the terms of the missing will to be enforced.
Find a good lawyer
This site usually provides actionable steps that you can implement yourself before consulting a lawyer. However, in cases of suspected will concealment, hiring a lawyer is crucial. Quick legal action can prevent the will from being destroyed. An experienced inheritance lawyer can help you choose the best steps based on the circumstances and available evidence.
Lodging a caveat with the High Court’s probate registry
Lodging a caveat with the probate registry of the High Court in Wellington ensures that you are notified if someone applies for probate of another will. This allows you to oppose the application, arguing that the missing will is the last valid will.
Typically, probate applications are made “without notice”, meaning no one is told about the application before it is granted. Lodging the caveat ensures you are aware of the application, and it cannot proceed without your knowledge.
If you are unfamiliar with the probate process, you can read our free guide here.
Applying for a search order
If you have strong evidence that someone has the will, consider applying for a search order. This court-ordered action allows an independent party to search the suspect’s premises without warning, offering a chance to recover the hidden will before it can be destroyed. Note that this remedy is drastic and requires convincing evidence to be granted.
Applying for a section 54 order
Under section 54 of the Administration Act 1969, the Court can order anyone to produce any will or related document in their possession. The person must produce the document or appear in court to answer questions about it. Failure to comply can result in being held in contempt of court.
Obtaining a copy of the missing will
If the original will cannot be found, you might be able to apply for probate of a copy through a process known as probate in solemn form. You will need to prove, on the balance of probabilities, that the deceased did not intentionally destroy the will; otherwise, the will is no longer valid.
Here are some suggestions for locating a copy of the missing will:
- Contact the deceased’s solicitors – They likely have a copy of any will they helped draft, even if they do not hold the original.
- Utilise will search services – If the usual solicitors are unaware of the will, it might have been drafted by another firm. The New Zealand Law Society offers a will notice service in its LawPoints newsletter, which helps locate legal professionals involved in drafting wills. The NZ Will Registry, though unofficial, is also a useful resource for finding registered wills.
- Examine the deceased’s papers and digital records – Search thoroughly through all papers and digital records, including computers and email accounts. A copy of the will might have been mixed up with other documents or saved as a draft or scanned copy. You should also be on the lookout for any notes that the deceased made when drafting the will, as it may be possible to have these validated as the deceased’s last will in the absence of the final document.
- Investigate secure locations – Check any safe deposit boxes or secure storage areas.
- Consult family members and advisors – Sometimes, a copy of the will might have been given to another family member or advisor, such as an accountant.
Reconstructing a will from recollections
If a copy cannot be found, it is sometimes possible to obtain probate of a reconstruction of the will made from people’s recollections of it.
Gather testimonies from family members and friends of the deceased who were shown or told about the missing will. If someone was not told specifically about the terms of the will, but the deceased told them what they wanted to happen to their property after they died, and those remarks are consistent with the terms of the missing will, this evidence can support the application.
Document everything
Document your reasons for believing the will is hidden. Write down all relevant conversations. Detailed records can be invaluable if the matter goes to court.
Exercise caution towards the person suspected of holding the will
Engage with the suspected holder of the will sensitively. Consider the potential need for a search order before taking actions that might prompt the destruction of the will.
Conclusion
Suspecting that someone is hiding a loved one’s will is challenging. Quick action and expert legal guidance can help ensure your rights are protected and the deceased’s wishes are honoured.