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But are you sure there is no will?

07 April 2016

By Geoff Adlam

Just over 31,600 New Zealanders died in 2015. Most (98%) were aged 18 and over. Estimates vary on how many of them died intestate. Consumer magazine reported in 2012 that the rate was less than 5% – about 1,500 intestacies annually. That same year Public Trust said around half of New Zealanders over 18 do not have a will. If these figures match, it indicates that most people finally recognise that making a will is the best way of controlling disposition of their assets on death. With an intestacy the problems usually begin as soon as family members' thoughts turn towards inheritance.

Determining if a deceased has ever made a will – or even if that dog-eared 30-year-old typewritten document is really the last will – is not an exact science. Applications for probate, letters of administration or grant of administration on intestacy all require the applicant to swear an affidavit that they have made "full inquiries and searches for a will" (if intestate, Form PR3) or that the document is the deceased's last will (Forms PR1 and PR2).

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The question becomes, what needs to be done for a full inquiry and search? One visible sign that searches are going on are the Wills Notices which appear in LawTalk and other NZLS publications. The first advertisement for a missing will appeared in the 16 February 1978 issue of LawTalk. Now over 700 advertisements are placed annually in LawTalk, other regional publications or emailed to lawyers in a branch.

Many law firms are guided by a statement in Dobbie's Probate and Administration. The 6th edition (2014, LexisNexis NZ Ltd) states at 34.20 [slightly corrected where indicated]:

"High Court Rules forms PR3-PR6 require the making of 'full inquiries and searches for any will' to establish beyond doubt that the deceased did not leave a will. Inquiry must made of all law firms within the area or areas in which the deceased lived over recent years and from local branches of Public Trust and the Trustee Corporations. The method of circularising law firms varies from area to area, but the initial inquiry should be directed to the local [NZLS branch], which either arranges advertisement in its publication which goes to all firms in its area or sends a written inquiry to its members. If the deceased moved around New Zealand, an advertisement should be placed in … LawTalk which goes to solicitors throughout the country. In addition to these inquiries a search must be made of the papers of the deceased to find out if there is a will."

While a sizeable number of law firms advertise nationally in LawTalk, others only inquire locally. If the deceased has spent their whole life in a district, it is probably a reasonable assumption that any will would be held locally.

No magic bullet

After a long career administering and approving wills applications, former High Court Registrar Peter Fantham says that in his experience he is not aware of any test on how far the level or measure of "full inquiries" extends or should extend.

"Full inquiries? How long is a piece of string? There is no magic bullet or one size fits all.

"I have often thought that advertising via the local Law Society might not be enough, but if the deceased lived in that area all their life or a significant number of years then I held the view that such level of inquiry was sufficient in the applications of intestacy.

"If, however, the deceased had lived in various places during their adult life, national inquiry via LawTalk is justified. There have been occasions when recall of Letters of Administration has been sought when a will has been discovered, after 'full inquiries' had been deposed to. That said there have been similar applications to recall probate when a later will has been found."

One of the Dobbie authors, Greg Kelly of Greg Kelly Law Ltd, says his firm normally waits 3-4 weeks after placing a Wills Notice inquiry.

"We normally check the deceased's papers and records and inquire with the family re testamentary documents."

Mr Kelly says signs which are indicative of whether a will is in fact the last will include the age of the testator, changes in circumstances, and the outcome of inquiries with family members.

Wills inquiry survey

A survey of those who made wills inquiries in Law Society publications over the last six months resulted in an excellent response rate. It showed that most (64%) placed their inquiry only if the deceased appeared to be intestate. Of the rest, most said it was dependent on the circumstances, such as if a will was older than a specified term (eg, 15 years) or if the deceased had a history of moving to or living in different areas.

Most (75%) said the will notice is not the sole inquiry they make as to whether the deceased is intestate or whether the will they hold is the deceased's last will. The most common inquiries are discussion with family members, a search of the deceased's papers, circularisation of trust companies and accountants, and contact with local law firms. One tip is to look for any firm which carried out conveyancing for the deceased at some stage, with the likelihood that the will was updated at the same time.

Will notices also appear to be more than "fire and forget". Of those who responded, 80% said someone in their organisation routinely read the Wills Notices. A relatively high 38% said they had received a response at some time to a Wills Notice which they had placed.

Most respondents waited either one month (53%) or two weeks (29%) after publication of a Wills Notice before continuing with estates administration processes.

Retention and storage

Retention and storage of wills is, of course, an essential part of ensuring that a will can be located. Law firms and lawyers come and go. The Law Society-commissioned opinion Ownership and Retention of Records on Termination of Retainer states that documents evidencing legal obligations such as wills will generally be entrusted to the solicitor for safekeeping, and clearly cannot be destroyed after any set period of time. The period of retention depends on the particular document, and such documents should not be destroyed without the client's or owner's consent.

Recently, in Re Crawford [2014] NZHC 609, the High Court found that a person who is entrusted with the custody of a will must retain the original document. After a law firm decided no assets in the estate would require a grant of probate, the will was electronically scanned and then destroyed. However, an insurance policy was later found and it became necessary to apply for a grant of probate – of a copy of the will – which was refused. The Registrar's conclusion that the appropriate application was for a lost or destroyed will was upheld in the High Court.

Justice MacKenzie noted sound reasons for retention of the original will, such as inspection of signatures, the condition of the will, and other matters which can be checked only by reference to the original will.

Law firms which cease practice usually hand their documents and files over to the acquiring firm, to another local firm if there is no merger or acquisition, or sometimes a solicitor will retain the will and advise the New Zealand Law Society how to contact them. The Law Society recommends scanning of all such documents for disaster recovery purposes, ensuring that the original documents are retained.

And, of course, if a will is tracked down, is there any obligation on the holding law firm to surrender it? Client confidentiality passes to the executors of the estate after a client has died. Wills are public documents after probate has been granted, but there are some interesting little issues on rights to access or possession of the document.

It is clear that ensuring a will remains visible and locatable is fraught with some pitfalls. A lot of time may be spent tracking down – or trying to track down – the all-important last will.

Wills registries

One scheme which can cover both secure storage and also of easily facilitating inquiry is a registry for wills. There are wills registries in many countries. Some are commercial businesses, such as The Will Registry Australia and Certainty the National Will Register (United Kingdom). Others are managed by state agencies – Singapore's Wills Registry is maintained by the Public Trustee and British Columbia's Wills Registry by the province's Vital Statistics Agency. All registries seem to operate on a voluntary basis with information on wills and their location being registered for a fee.

New Zealand has so far been registry-free, but that is changing. NZ Will Registry (www.nzwillregistry.co.nz) is now up and running and collecting registrations. Run by Kowhiri Ltd, which is ultimately controlled by Perpetual Guardian Trust founder Andrew Barnes, the registry is designed to be a repository of information about the location of wills, and does not store the actual document.

Spokesperson Dave Macken says Kowhiri was set up to provide estate planning software solutions to lawyers.

"As we have talked to lawyers we've heard that locating a will is a real issue. Other countries have similar systems so it seemed only natural for us to create one for New Zealanders," he says.

"Knowing the existence and location of the most up-to-date will is the key issue. If there is awareness of this then this can help resolve disputes. It's also important to note that beneficiaries can often be unhappy, they can feel the process takes a long time."

Dave Macken says anyone can use the service to register or search for a will. It will cost to search for a will, with non-lawyers to be charged $10 a search, while lawyers can purchase a "bundle" of searches at $99 for the first 25 and purchase more if needed. To encourage adoption Kowhiri is offering the NZWR free to lawyers for the first six months up to mid-August.

"We have spent a lot of time working through the information that we display and who it is displayed to and why. In short, if a member of the public is searching the NZWR they will not be told of the location of the will – just its existence – and told to see a lawyer to find the location.

"We understand that lawyers hold a special responsibility as part of the process and direct non-lawyers to them. However, if a lawyer searches, they will be given the location of the will."

Obviously not all wills will be in the registry and the site's success will depend on having a large number of wills registered. Registration of a will is free, and Kowhiri says it is talking to a number of will providers to ensure they can put their clients' wills on the site.

"We have made sure that users of the site can easily message lawyers registered with the NZWR to find non-registered wills. If a user decides to message the lawyers we aggregate these requests and send a weekly email."

Last updated on the 21st June 2019