Updated 23 October 2026
Administration of Estates - Potential Problem #15: Historical Manuscripts Found
If you find old letters, diaries or unpublished drafts while administering a NSW estate, secure them before deciding who should receive them. Their financial value, historical importance and ownership may require different assessments. An executor should establish what belongs to the estate, preserve the evidence and check the will before arranging a sale, donation or publication.
Historical manuscripts differ from ordinary printed books and many collectibles because they may contain unique information, unpublished writing and material created by several people. A valuable document can also carry copyright or confidentiality issues that do not disappear when its physical owner dies.
1. Protect the manuscripts and record the discovery
Photograph the collection where it was found and record the location, date and people present. Preserve the existing order of folders, envelopes and loose pages. An envelope, annotation or adjoining document may help establish the author, date or chain of ownership. Record who takes custody and where each group of papers is stored.
The National Archives of Australia’s paper preservation guidance recommends careful handling and archival packaging. Avoid adhesive tape, unnecessary folding or attempts to repair fragile pages. Keep the material away from water, strong light and unsuitable storage conditions. If papers are mouldy, wet or deteriorating, isolate the affected material and obtain conservation advice before cleaning or scanning it.
2. Establish ownership before treating the papers as an inheritance
Finding documents in the deceased’s home does not prove they owned them. Papers may have been borrowed from a library, held for an employer, entrusted by a relative or retained on behalf of an organisation. Look for purchase records, loan agreements, donation correspondence and earlier inventories.
Check each group of documents rather than assuming the entire cabinet has one owner. If a university or another person asserts ownership, preserve the papers and investigate the evidence before distributing them. Historical importance alone does not make a private collection public property or give a museum priority over the beneficiaries.
3. A real case about the ownership of historical correspondence
In Hocking v Director-General of the National Archives of Australia [2020] HCA 19, the High Court considered correspondence between Sir John Kerr and Queen Elizabeth II. Although described as personal and confidential, the majority held that the correspondence comprised Commonwealth records for the purposes of the Archives Act.
This was an archives access case, not a probate dispute. Its relevance for executors is the need to investigate the legal basis on which papers were created and held. A label or family assumption does not settle ownership. The decision does not mean that ordinary private diaries or family letters automatically become public records.
4. Separate the physical manuscript from copyright
As the National Library explains, owning a letter or draft does not necessarily give someone the right to publish, reproduce or commercially exploit its contents. Copyright may belong to the author, an employer or someone who received an assignment. A collection of incoming letters may therefore involve several copyright owners even if the deceased owned the paper.
There is an important inheritance rule in section 198 of the Copyright Act 1968. Unless the will indicates otherwise, a bequest of the manuscript of a literary, dramatic or musical work unpublished before the testator’s death includes whatever copyright the testator owned in that work immediately before death. It cannot transfer copyright owned by somebody else.
Before publishing extracts online or agreeing to a book deal, check authorship, copyright duration, assignments and any publishing agreements. If the family wants to keep the originals but license publication, document those arrangements separately. Confidential information and sensitive material about living people may also need review.
For example, imagine a writer leaves an unpublished manuscript to one child and the rest of the estate equally to two children. If the writer owned its copyright and the will shows no contrary intention, section 198 may carry that copyright with the manuscript. Equal shares of the residue would not necessarily divide that separate gift equally. This is an illustrative example, not a reported case.
When arranging digital copies, keep the original documents and preserve information linking each scan to its source. Record permissions and access restrictions alongside the catalogue. A scan can reduce handling and help relatives understand a collection, but it does not resolve ownership or authorise public release.
5. Read the will and update the estate records
A manuscript does not need to be individually listed in the will to pass under it. A gift of personal papers, a broader gift of belongings or the residuary clause may cover it. The wording and ownership determine the result. If no effective provision covers the asset, partial intestacy may arise.
Add the discovery to the estate inventory and obtain an appropriate valuation. The Supreme Court’s probate checklist distinguishes an amended inventory before a grant from an affidavit of additional assets after a grant. Tell the solicitor administering the estate when the papers were found so the correct procedure can be followed.
6. Assess market value and historical significance separately
Ask a specialist familiar with manuscripts and archives to assess the collection. Relevant factors may include authenticity, author, completeness, condition and provenance, meaning its documented history of ownership. A famous signature is only one consideration; an intact sequence of correspondence may tell a story that isolated pages cannot.
A family’s attachment to a diary is different from its likely sale price. Equally, material with modest commercial value may be important to researchers. Obtain advice before splitting a collection into individual lots. Keep the valuation’s purpose and date clear, since an auction estimate, insurance assessment and estate valuation may answer different questions.
7. Check export rules before promising overseas delivery
The Protection of Movable Cultural Heritage framework regulates the export of Australian protected objects. The Office for the Arts explains that it does not generally affect the right to own or sell the material within Australia. It is not a blanket restriction on every domestic sale of an old manuscript.
Consult the National Cultural Heritage Control List to determine whether the particular material is protected. Class B objects require an export permit; Class A objects are generally prohibited exports. Check before sending manuscripts to an overseas buyer, auction house or beneficiary. Permit assessment can take months, so any proposed transaction should allow for the required decision.
8. Consider sale or donation within the authority of the estate
An executor should not donate estate property simply because a library expresses interest or some relatives prefer preservation. Check the will, the executor’s powers and the beneficiaries’ rights. Get advice before departing from their entitlements, especially where minors, trusts or competing claims are involved.
The National Library of Australia accepts offers of archival material, including manuscripts, but assesses them against its collecting priorities and condition requirements. Contact the institution before sending originals. Agree what is being transferred, whether copyright is included, and any access or acknowledgement terms. A deposit, loan, sale and outright gift have different consequences.
Do not assume donation creates a tax deduction for the estate. Office for the Arts guidance states that testamentary gifts made from an estate are not eligible under the Cultural Gifts Program. Obtain advice on the actual transaction before promising a tax benefit to beneficiaries.
9. Plan for the archive while you can explain it
Collectors and writers can help their executors by keeping an inventory that identifies the papers, their location and any ownership or publishing arrangements. Record the context that a future administrator may not recognise, including pseudonyms, family relationships and which documents belong together.
A will can address the physical collection, copyright, substitute recipients and what should happen if a proposed institution declines the gift. Discuss collection gifts with the intended recipient in advance. If you want the archive kept together or access delayed, have those wishes translated into workable provisions rather than relying on an informal promise.
CM Lawyers can help executors assess how newly discovered manuscripts fit within an estate and help collectors document their intentions. Read about our wills and estates services or contact Christine Manolakos and the team before committing the estate to a transfer or donation.
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