By Jaclyn Stephens (Paralegal) and Rachael Hocking (Senior Associate)
One of the questions we are often presented with, as Wills & Estates practitioners, is how will my executor know that I’ve prepared a Will, and where to find it? Or alternatively, if I’ve not nominated a close family member or friend, how will my executor know that I have died?
Case example
Wills are prepared for husband and wife with considerable wealth. They have one son and three grandchildren. Their son has considerable mental health and financial issues. As a migrant family, they have no other family in Victoria or Australia. The husband and wife do not believe that their son will be able to administer their estates, when the time comes. Accordingly, they appoint each other as respective executors and once the second of them dies, they appoint a trustee company. They choose to make provision for their son during their lifetime and, therefore, not to provide for him directly under their Wills – instead “skipping” over him and making provision for their grandchildren.
The trustee company is advised of its appointment as substitute executor, however the husband and wife are concerned that the trustee company may not become aware when they have both died, as they have chosen not to discuss their estate plan with their son. Their primary concern is that either their son proceeds on the basis that they do not have Wills (as they have not made him aware of this) or that their son may find a copy of their Wills in their papers, see that he does not benefit, be naturally unimpressed by this, and pretend to have no knowledge of the Will and fail to notify the trustee company.
If this was to occur, the son could (either ignorantly or fraudulently) apply for a grant of letters of administration upon intestacy, intestacy being where some dies without a Will. Under the intestacy provisions the son would be entitled to the entire estate of the survivor of his parents. Whilst there are obviously implications for fraudulently obtaining a grant in the event the trustee company (or anyone else) discovers what has transpired, however the husband and wife understandably want to avoid this situation altogether.
What is the solution?
One proposed solution to this scenario is that rather than the original Wills being held by the firm of solicitors who prepared them (which is the most common practice), the Wills are instead filed with the Supreme Court of Victoria in its Wills register.
This means that should the husband and wife’s concerns transpire, and their son does apply for a grant of letters of administration and seek control and benefit of the estate, when the application is filed with the Court, the Court will conduct a search of the Wills register and note the existence of the Will. This will prevent a grant of letters of administration and require that the Will be provided by the trustee company as the nominated executor, with the estate being administered in accordance with the wishes set out in the Will.
This can be a legitimate concern for willmakers not just where there are difficult family circumstances but also, more generally, where the willmaker is unsure how the nominated executor will become aware or be informed of their death. It is therefore important that you consider the practicalities and discuss the possible implications and solutions with your solicitor.
If you have any questions in relation to this article, please do not hesitate to contact us.
