News & Insights

Scams can come in all shapes and sizes, but lesser known are scams involving a will. Recent media reports have highlighted the need to be vigilant with all important documents and correspondence held at home, and for that vigilance to be supported by the immediate families and close friends.

Documents stolen in house break-in to create fraudulent will

An alleged fraud has reportedly been uncovered in New South Wales where a will was created on behalf of a deceased person using documents allegedly obtained from his home. The reports also allege that the will was then used to obtain a grant of probate from the court, which was then subsequently used to transfer estate assets to the alleged perpetrator. All this saw the alleged perpetrator receive assets in the order of approximately $4.5 million.

Keeping your estate safe from a scam

The processes to transfer property, to register a mortgage, to collect estate assets or to obtain a grant of probate or letters of administration are considerably onerous. However, an environment where scams are becoming more sophisticated, it is likely that we will see an increase in attempts to defraud estates in much the same way as we are seeing this infiltrate our IT and banking systems.

For example, in the context of deceased estates, the estate might be particularly vulnerable because the deceased might not have any next of kin to check in on what is happening with the estate.

What will and estate protections are already in place?

In most Australian jurisdictions, there are protections in place when applying for a grant (of probate or letters of administration) starting with a requirement to advertise an intention to make an application, before making it. These probate notices are usually searchable online and are a quick indicator for anyone concerned with a deceased person’s estate, as to who is active in the estate.

Once the notice period expires, the original will and original death certificate are usually lodged with the court in return for a grant (i.e. they are not returned to the applicant and the grant takes the place of those documents). This removes original documents from circulation but verification and validation of these documents by the court is limited. Many court jurisdictions now provide online search capabilities for probate applications.

What if there is no will?

In cases where there is no will, an applicant for a grant is usually required to prove their familial relationship with the deceased via birth, marriage and death certificates. However de facto relationships are not documented in this way, and rely on affidavits as to the relationship by the applicant.

Storing my will and estate planning documents

The lack of a central registry for wills in Australia also contributes to the issue, with original wills mostly being held in safe custody with a law firm, bank or other supplier, or at home with other valuable personal documents.

When the home-storage option is not in a safe, those documents may be accessible by anybody who visits the home. This includes carers and service providers.

How to protect my will and estate planning documents

The best ways to mitigate the risks with a will and other estate planning documents may be to:

1. Retain the original in a safe at home or its equivalent.
2. Have the lawyer who prepared the documents continue to hold the originals in their safe custody facility.
3. Let executors know of the existence of a will and inform them where the originals are kept.
4. Consider whether you really need to keep a paper copy handy.
5. Treat paper and digital copies of your will as securely as you would the original.

Another safeguard is that for those close to a deceased person, and especially in the case where there is no immediate family, regularly perform a search of the probate notice and probate application databases to check for suspicious activity.

Whilst it is going to become increasingly difficult to protect against fraud in this space, taking these important steps could help in the prevention of this kind of thing happening to your estate.

Nicole Treacey is our expert Brisbane Wills and Estate lawyer and can support you in the drafting and safe storage of your will and estate planning documents. Please reach out for advice.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.