In this episode of Talking Legal, trusted Wills and Estates lawyer, Len Watt, discusses how to store and collect your Will.
1. Can I ask my lawyer to store my Will and is that safe storage?
Of course. As well as many other important documents, we store a physical copy of your Will in what we call “safe custody.” Within Becker Watt, we use heavy, fireproof filing cabinets. Generally, we also keep a digital copy of the Will. With some of the older documents we only hold paper copies, but with more recent documents we also hold a digital version.
2. Can anybody collect my Will?
The first response to this question is no. A Will is the property of that particular person and cannot be collected by anyone else, including family members; without a careful process of the family member being provided instruction and identification of all the parties, including the owner of the Will.
The Executors are only entitled to the Will upon the passing of the person who owns it. They will have to provide a copy of the death certificate and be identified as the correct people noted as the Executors before the Will can be handed over. While this might seem like a lot of extra undue stress at a very emotional time, dealing with the property of the deceased must be done in a very careful way. That includes the releasing of the Will.
3. What happens if I want my Will?
There’s generally very little reason to access an original Will, however if you need to, you must contact the lawyer who is storing your Will and ensure you present appropriate ID (100 points of ID).
4. If I do not have capacity, can my Power of Attorney retrieve my Will?
“Legal capacity” refers to a person’s legal ability to understand and sign, enter or provide instructions for a Will. A person suffering from a medical condition such as Alzheimer’s may be deemed to have lost legal capacity, as they will have potentially lost cognitive function.
When a person makes a Will, they generally also do a Power of Attorney. The Power of Attorney can take over particular parts of those affairs, upon events such as them losing capacity. It is also important to understand the terminology – the person giving the power under the Power of Attorney is the Principal and the person being given the power is the Attorney.
However, it is not appropriate for an Attorney to collect a Will. The powers that an Attorney is granted under a Power of Attorney are such that it is not appropriate for them to be provided with copies of a Will. In the worst cases, an Attorney could change parts of the Principals estate to defeat the provision of a Will. As an example, selling real property (land) which was to be given to a particular beneficiary and reinvesting the money in property that was to go to a different beneficiary.
5. Does a Will hold the same power overseas?
There are circumstances where people who move to Australia already have assets in their home country. A person may have a Will in both countries, but this must be disclosed in both Wills. In other words, your Australian Will must note that your overseas Will exists, and your overseas Will must note that your Australian Will exists.
There is a Convention Providing a Uniform Law on the Form of an International Will 1973 that Australia is a signatory to. This convention looks to set up an international will which is recognised by the signatories to that convention. It is, however, extremely difficult to do an all-encompassing international Will and specific legal advice should be sought. For more information, contact our trusted Wills and Estates lawyers in Brisbane. To contact Becker Watt Lawyers, call us on 1330 AT LEGAL, email info@beckerwatt.com.au or book a consultation online.
