In our last article in our Prickly Probates series, we talked about how to make probate application when the original will has been lost. A question we get often is, if someone has died and you suspect there is a will but can't find it (or you have no idea whether there is a will or not), how do you find the will? You can't get very far applying for probate unless the will (or at least a copy) has been found, so we felt this warranted an article of its own.

The papers of the deceased

The first step is to go carefully through the papers of the deceased. Usually, when someone makes a will, the lawyers give a copy (or sometimes the original) to that person to keep with their important papers.

If you find a copy of a will amongst these papers, it will usually have the name of the firm that created the will printed somewhere on the will itself (often on the covering page) which allows you to get in touch with that firm to see if they are holding the original.

Wills held by law firms

If a search through the papers of the deceased turns up nothing, then the next step is to see if any law firms are holding the will.

Unfortunately, there is no register of wills in New Zealand as there is in some other countries so there is no easy way to find a record of all the wills in New Zealand all in one place. Instead, wills are usually kept by the lawyers who made them (or, if the deceased had moved on to using new lawyers, the will and other important papers are typically moved on to the new lawyers with them). If a law firm ceases to exist, it always hands its wills safely to another (usually local) law firm so that they are never lost.

In many law firms, there is a member of staff who looks through the death notices in the newspaper every morning and checks to see if the firm is holding a will for any of those people. If the firm is holding a will, they contact the family of the deceased, so sometimes a search for the will by the family is not necessary at all.

The easiest way to find out which lawyers might be holding the will is if you find other documentation from lawyers in the papers of the deceased (or you know the deceased dealt with a certain firm of lawyers), to contact those lawyers first and see if they are holding a copy of the will and, if not, if they know what lawyers the deceased went to after them so that you can ask those lawyers.

Lawyers usually have very good systems in place, especially for wills, to ensure that they have a record of what they are holding and also a record of where those documents went after they left.

If the deceased lived in a smaller town, sometimes contacting all the lawyers in that town (as in smaller towns there are often only a few firms) is the easiest way to determine who the lawyers for the deceased were. People do not always necessarily use lawyers in their town, but often they do so it is a good start.

If you can't find the law firm that is holding the will in any of the above methods, the next step is to place an advertisement in a newsletter for lawyers that goes to all of the lawyers in a certain area (or often it is more efficient to place the advertisement in the newsletter that goes to all lawyers in New Zealand). The advertisement gives the name and date of death of the deceased and contact details for any firm which is holding a will to contact. In each firm, there is a member of staff who goes through these lists each week and checks to see if that firm is holding any of the wills that are being searched in this manner.

If no will can be found

If all of these methods above have been tried and no will has been found, then most likely an application for probate won't be possible and you will instead make an application for letters of administration (which is a very similar application but in a case where there is no will). For a handy comparison of probate and letters of administration, see our article here.

For more information

For more information, please contact Jenny Lowe. Jenny is one of few legal specialists in New Zealand for probate and letters of administration applications, covering both the simple and the complex. She is particularly skilled in applications where the deceased lived and died overseas, but the estate has assets in New Zealand. Please contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com.