Updated 23 October 2026
Wills - Potential Problem #16: Failing to Store Your Will Safely
A safely stored will needs to be protected, identifiable and retrievable. Keeping the original somewhere secure is only part of the task: your executor must also know who holds it and how to obtain it when needed. A document that nobody can locate may delay the administration of your estate.
In NSW, a missing original does not automatically invalidate a will. A copy may sometimes be admitted to probate, but additional evidence is usually required. Good custody arrangements help your executor avoid having to reconstruct what happened to the signed document.
1. Keep the original and record where it is held
For an ordinary probate application, the original signed will and any codicils are required. A codicil is a separate document that changes or adds to a will. Keep these documents together in a clearly identified custody arrangement, while preserving each document intact. The Supreme Court of NSW explains the probate application requirements.
Record the date of the will, the name and contact details of its custodian, and any custody reference. Keep that location record somewhere your executor can find without needing access to the original. Update it whenever the document moves. A note saying “with my solicitor” may be inadequate if you have used several firms.
Christine Manolakos stresses the importance of keeping clients’ original wills in CM Lawyers’ safe and issuing certified copies. With your authority, we retain the original in safe custody so it can be located when needed. Tell your executor that CM Lawyers holds it and keep our contact details with your estate planning records.
2. Choose storage with an access plan
Legal Aid NSW identifies several storage options, including your lawyer, NSW Trustee and Guardian, a bank or your home. You do not have to register an ordinary will in NSW. The practical choice should take account of both physical security and the arrangements for releasing the document.
If using a solicitor or another custodian, confirm that they hold the signed original, not merely a scanned file. Ask how it is recorded, how you can retrieve it and what your executor will need after your death. Request written confirmation when depositing or transferring it.
NSW Trustee and Guardian’s WillSafe is another option for eligible NSW residents. Its published guidance explains depositing original documents, retaining electronic copies and arranging retrieval. Check the service’s requirements directly before choosing it.
For a bank safe custody facility, check availability and the institution’s identification and release requirements. Do not assume a relative can collect the original simply because they know where it is. If keeping it at home, consider fire, water, theft and access after death. A locked safe is ineffective if nobody can lawfully open it.
3. Tell the right people without losing privacy
Tell your executor and substitute executor where the original is stored and how to contact the custodian. You can generally share that information without disclosing the gifts in your will. Letting someone know where to enquire does not itself authorise them to collect or alter the document.
After death, a custodian may require identification, a death certificate and evidence of the requester’s entitlement. Some people may be legally entitled to inspect or obtain a copy of a deceased person’s will. Privacy preferences therefore need to be considered alongside the applicable legal rights.
Keep practical funeral instructions accessible separately. They may be needed before the original will is retrieved. Likewise, ensure an attorney or enduring guardian knows how to obtain the relevant appointment document when it is needed during your lifetime; a will serves a different purpose.
4. Preserve the document in the condition it was signed
Keep the original complete and legible. Do not write notes on it, replace pages, laminate it or remove its binding simply to make scanning easier. Store separate instructions and correspondence alongside the document rather than attaching them to its pages.
The Supreme Court’s probate checklist requires the original will to be filed separately from other application documents. Changes to a will’s appearance or missing pages may need explanation. If you discover damage, preserve it and obtain advice before attempting a repair.
Certified copies and secure scans remain useful. They can help identify the document and provide evidence if the original is lost. Certification does not turn a copy into the original or guarantee that it will be accepted for probate. Keep the original’s location clearly recorded on a separate cover sheet or in your records.
5. Confirm custody when circumstances change
Moving house, changing solicitors, entering residential care or clearing a property can disrupt document storage. Check the original’s location before packing or disposing of papers. If it is being transferred, record who released it, who received it and when receipt was confirmed.
When a solicitor retires or a firm closes, do not assume the original has disappeared. Legal Aid NSW recommends contacting the Law Society of NSW for information about successor firms or where files may be held. Keep any transfer letters with your location record and update your executor.
When making a new will, ask your solicitor how earlier originals and copies should be dealt with. Avoid leaving contradictory instructions in different places. If an executor finds several wills or codicils, they should preserve them all and obtain advice rather than discarding documents on the assumption that only the newest date matters.
6. A recent NSW case shows why custody evidence matters
In Jaksic-Repac v Dundjerski [2025] NSWCA 256, the original of a professionally prepared will could not be found. Evidence showed that the deceased believed her solicitors held it and continued to regard it as her current will. The Court of Appeal upheld the decision admitting a copy to probate.
It was not established that the original had last been in the deceased’s possession, so the presumption that she destroyed it intending to revoke it did not arise. The Court also held that the evidence would have rebutted that presumption. The decision illustrates the importance of custody records; it does not guarantee that every missing will can be proved from a copy.
7. Take an organised approach if the original is missing
Legal Aid NSW’s guidance on searching for a will recommends enquiries with relevant lawyers, banks, advisers and NSW Trustee and Guardian. Search personal papers carefully and keep a written record of the places checked, people contacted and responses received. Preserve copies, custody receipts and correspondence.
The NSW Trustee and Guardian will enquiry service checks whether that organisation holds the document. It is not a comprehensive register of every will made in NSW. A negative response does not establish that no will exists.
Where an original was last traced to the deceased and cannot be found after a diligent search, a rebuttable presumption of revocation may arise. The evidence matters. Obtain advice before assuming the estate must be distributed under intestacy rules or that a copy can simply replace the original.
The Supreme Court’s guidance on complex probate proceedings explains the evidence required for a lost original. This can include affidavits about custody, searches and the circumstances of the loss. If the original is later found, further steps may be needed. If someone is known to hold it but refuses to release it, seek advice about obtaining production.
8. Make storage part of every will review
At your next review, confirm that the current signed original is where your records say it is, that any codicils are accounted for and that your executor’s contact information is current. Review the access arrangements as carefully as the gifts in the document.
CM Lawyers can help with preparing, reviewing and storing your will, or advising an executor who cannot locate an original. Explore our wills and estates services or contact Christine Manolakos and the team to discuss your documents and custody arrangements.
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