Who 'owns' or has control of your will?

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 A person’s Will is an extremely important document and it must be well looked after.  Even a copy of a person’s last Will can only be released to authorised persons.  In New Zealand, most original Wills are held for safekeeping, together with other important documents, in the “Deeds Room” of the law firm that prepared the will. 

We often receive requests from people asking for a copy of their Will and sometimes for a copy of the Will of their spouse or some other person.  Some people get upset to find out that they cannot simply uplift a copy of another person’s Will without us first having received the written consent of that person.  Therefore, it seems that it would be helpful to understand who “owns” or has control of a person’s Will: 

  • While alive, the person who wrote the Will, the “willmaker” (who used to be called the “testator”) owns the Will.  Only he or she can authorise that a copy can be sent out or uplifted.
     
  • Once the willmaker dies, the executor or executors named in the will take control of the Will, and they are the only ones that can authorise that a copy can be sent out or uplifted.
     
  • If the Will is held by “Law Firm A” and the executors want “Law Firm B” to administer the estate, all of the named executors will need to sign an “Authority to Uplift” and send it to “Law Firm A” to have the Will sent to “Law Firm B”. 
     
  • All Wills should clearly name the executors and state their places of residence and their occupations.  If the occupation of one or more of the executors is “Solicitor”, it does not mean that the law firm where that solicitor practices law is also appointed to act as the lawyers for the estate.
     
  • The executors choose what law firm is to act as the solicitors for the estate.  If there is more than one executor, the executors must agree on who is to act.  If they can’t agree, it may be necessary to apply to the High Court for directions to remove the executors and appoint an organisation such as the Public Trust to act as the executors for the estate.
     
  • Even if it is stated in the Will that the estate is to be administered by a certain law firm, this is not binding.  The executors are the ones who make the decision as to who Will act as the lawyers for the estate.
     
  • There is no official “reading of the Will” in New Zealand.  What happens is that the executors can authorise that copies of the Will be sent to all beneficiaries so that they can each read what it says and what they are entitled to receive under the Will.  Executors are not required to do this, and the solicitors administering the estate can only send a copy of the Will to the beneficiaries of the estate upon receiving instructions from the executor(s) to do so.
     
  • If you believe you are the beneficiary of a Will but are not an executor, it will be necessary to get the approval of the executor(s) for you to be given or sent a copy of the Will.
     
  • If all executors named in the will have either died or are unable or unwilling to act as executors (due to ill health or having moved overseas for example), it will be necessary to apply for Letters of Administration with Will Annexed.  In this case the people who are the beneficiaries named in the will are the persons entitled to apply to be the administrators.  The estate is then administered in accordance with the directions in the Will (rather than where there is no will, in which case Letters of Administration on Intestacy will need to be obtained and then the estate will be administered in accordance with the Administration Act).
     
  • Once Probate or Letters of Administration with Will Annexed have been granted, the document becomes a matter of public record and any person can undergo a “Probate Search” or “Letters of Administration Search”.  Both of these documents contain a copy of the will, so once Probate or Letters of Administration have been granted by the High Court anyone can obtain a copy (there is a small fee for doing this).
     
  • If you don’t know who the executors are and you believe that you may be a beneficiary named in the Will, your best course of action would be to undergo a Probate Search.  You would need to contact the registry of the High Court closest to the place where the person died with an approximate date of death.  If there is no Probate held on record you may need to check again every month or so, as Probate of the Will may not yet have been granted. 

    When you have drafted your Will, you should ensure that the executors you have named in the Will know that they are the executors.

    You should also inform the beneficiaries of the Will as to the names of the executors, and which law firm holds your Will or where the original of your Will is located.  This will make it easier for your loved ones to organise the administration of your estate after you have passed away.

    If you have any questions regarding the above, or wish to seek advice regarding administering a deceased estate, please contact the author, Mimi Lewell by phone on 837 6831 or email mimi.lewell@smithpartners.co.nz 

 

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