We don't do wills well in our family. Genealogists to the rescue!

Good afternoon Robyn, Unfortunately we have received a Requisition from the Court with respect to your application. Essentially, the Court requires certified copies of all death and birth certificates to be annexed to the Affidavit and some new Certificates. I have drafted a fresh Affidavit for you to have a look at which details which documents we need.

The background story to this is that I'm the executor of my aunt's will or should be. Despite holding two copies of her will, we can't find the original. I had thoughts there could be a problem when I was given her daughter's copy when she predeceased her mum. I had also taken over her guardianship due to dementia. I could hardly claim she was of “sound mind and body” and had her will rewritten.

It was the most basic of wills. Bought as a will kit from the newsagent with photocopies shared with her now deceased daughter to use for herself. Hence, it was no longer on the original green paper. She had made it at the age of 86- her first will. And her now deceased daughter made one around the same time.

She left everything to me in the event of her daughter's death. I was entrusted as the remaining executor and default beneficiary with the verbal instructions to distribute the funds to various relatives. Two of her elderly cousins had witnessed it and shared those instructions with me also. So upon my aunt's death 18 months ago, I became beneficiary and executor according to the intended will. Not a great amount but a worthy legacy.

Alas she was declared intestate.

Both copies of the will had "copy" on them

Without the original will, I had to apply with my cousin's and siblings consent to be the Administrator of the will.

Hint  Get a valid will, lodge it with a solicitor and update it regularly. Or use the bank because copies of the will don't count and papers go missing during removals or clean up or transfer to a nursing home etc. Believe me the will has been held up to the light and been fingered for indentations. Besides the solicitors claiming her will was maliciously destroyed, a term I objected to, it’s been a whole lot of bother. I feel that in all her moves from home to respite care to nursing home, the original papers have gone missing or been misplaced. It is regarded as reckless destruction of the will and at the very least makes the deceased intestate. We just had to apply for me to be the Administrator.

That was over a year ago. Probate, funerals and burials need to be paid for in the mean time so you can be out of pocket with the expenses while you wait to have monies released from the estate. A word of caution here, when you die intestate or with an invalid will in New South Wales, the Successions Act 2006 comes into play with a legislated set of rules for distribution. It gives shares to all and sundry and not as just to you may be thinking. If an eligible relative has passed it goes to their children as beneficiaries and possibly their children's children. Everything needs to be proved and double checked, certified and legitimised. It’s worse if there have been divorces and accumulates with the intervening deaths in the family and goes back through records for decades.

I have spent the last year and a half drawing family trees for the solicitor, proving deaths and providing birth certificates, correcting discrepancies between the facts and what someone wrote on births, deaths and marriage certificates. Note these should be certified because they don't accept ones you've lifted off an ancestry site. At the last toll we had supplied over 25 certificates, 8 drivers licenses and other personal documents.

This family historian provided lots of old copies and even the divorce affidavits to prove relationships. The solicitor was impressed but not the NSW Supreme Court Registrar. Still a year later I'm providing birth certificates for my mother (who died thirty years ago) to prove she is the last sibling of my aunt and death certificates for my  grandparents who died nearly 70 years ago.

It's as though we started a conspiracy 100 years ago to try and rip off my auntie when she dies in 2022. Some of the people inheriting have never even met my aunt. But anyway we all know as genealogists that death certificates are only as good as the information that is supplied. When it came down to it, marriage certificates are only as good as the information that is supplied not to mention information on birth and death certificates as well.

                            We have a history of will problems in our family. 

I do not trust the public trustee. No great advice there. No, you can't leave your property to various cousins and children and not include your wife! With my grandfather, he thought he could with all the best intentions to protect a spendthrift second wife. No, you can't direct your children and  some grandchildren, including minors, to keep the house repaired for as long as she lives. My grandfather's will was a mess, unevenly distributed and unfair. It created ill will in the family and a nasty legal fight. In the end, what he he had tried to protect her from was straightened out by the courts. His spendthrift second wife got all the money, sold the house and frittered it away. 

At least we have moved away from the days of keeping all the finances from your wife. My uncle's will was quite possibly left with a Freemason friend. It never surfaced and I can't imagine the trouble that went on there and how the house and bank accounts were transferred to his wife. (The subject of the missing will I'm currently working on. Sometimes we never learn.) 

Protect the remaining live dependents. Make a will when your partner dies straight away. Especially if her kids may be entitled to the house they live in when you suddenly drop dead. Lack of a valid will does not protect unrelated step kids and your brother in America may be entitled to the house under the Successions Act and not the person you intended. Make guardianship directions for children left behind, ASAP. It stops the authorities getting involved and family squabbles.

Another childless man in Scotland left a generous amount. Solicitors did find family trees, leading through cousins, second cousins and further. It was complicated by stage names and some incorrect information about who was a cousin. Eventually the rightful beneficiaries were found but it wasn’t us. I bet the solicitors used up all the funds in genealogists fees. Being in the 70s and spanning across several countries, this could have been a lengthy process.

This letter, a genealogist's gift was in reply to a search for beneficiaries from a Scottish intestacy

I found a missing inheritance for a distant relative after tracing an little known cousin. A man who had read my blog contacted me, knew this childless person and said there were possessions locked up in the Bank of England and a notice of the will was found. Unfortunately I was about 10 years too late as under Scottish law the money goes into consolidated revenue after 5 years.

A relative did a lot of work looking for lost money

I have a fifth cousin who is quite obsessed with lost fortunes or  inheritances. His father had started him on the quest in the 1950s. They even have a copy of my 4x great grand father's disputed will. He was written out.  The Strelleys  left long and complicated wills which were further complicated by emigration to the colonies of Western Australia in the 1830s. In the dispute over wills, William Edward Strelley Harris was still sorting out the problem in the 1880s after his great-grandfather had passed away in 1820s. In the long protracted case of settling the will for Robert Strelley, it was still going on in 1880s. William Edward Strelley Harris, a grandchild, was called upon to return from Western Australia to England. He stayed in England fixing things up for a number of years.

He was aged 78 by this stage and met and married a young woman while there. He returned to Australia, sired two children and died less than five years after marrying. Can you imagine the outrage that he had left the family fortune to a new wife of two young children who subsequently  married again and had more kids? To make matter worse his infant son died and it looks like it took from 1902 till 1928 to sort that one out.

Things can take a while to unravel - 26 years

 

 

 

At last the Supreme Court of NSW is happy and I’m granted the right to Administer my Aunt’s will. Financial institutions and their rules are my next stumbling block. They want more documentation provided from the solicitors and the Supreme Court. Everyone is wary of the new electronic lodgement and communication.  Once sorted, Westpac Bank has another little hissy fit . The copy of my driver’s licence which I supplied months ago is now out of date because it expired a few days ago….. Next step is applying for an estate tax file number – seems things have dragged on so long the interest rates on the repayment of the nursing home bond have tipped us over the tax free threshold.

 

Here are some tips for writing a will in NSW:

1. Appoint an executor. Always  choose  someone trustworthy to manage your estate.

2. List assets and beneficiaries. Clearly outline “who gets what”.

3. Consider guardianship: If you have children who are minors ensure you  appoint a guardian.

4. Sign and date the document. Ensure two independent witnesses sign and date the will.

5. Update the will regularly: Review and revise your will every 5-10 years or when circumstances change eg births, divorces, remarriage etc.

6. Seek legal advice by  consulting a solicitor to ensure validity and compliance with NSW laws. Personalised guidance is essential.

7. Store safely: Keep the original will in a secure location, like a lawyer's office, the bank or safe.

8. Consider a testamentary trust  asset protection and tax benefits.

9. Be specific, avoid vague terms and ensure clear instructions.

10. This is a good time and place  to include funeral wishes and give your preferences for funeral arrangements.

Remember, a valid will ensures your wishes are respected. If you die without a will (intestate), your estate is distributed according to NSW Successions Act or other State Laws as applicable, which may not align with your desires.  

While you are at it -do your Power of Attorneys and Enduring Guardianship too.

 

How's this for a will? Too bad she was 50 years younger than him- there were eyebrows raised