When someone dies there are usually family members, friends and other interested parties who may want to see a copy of the Will. Legal Practice Director Jeff Garrett discusses this issue and provides some guidance to executors in this position.
Under the strict common law in past years, only the Executors or personal representatives of the estate were entitled to see the Will. Even if you were named as a beneficiary in the Will, this did not necessarily mean that you were entitled to see a copy of it. However, most Australian states have enacted legislation to allow people to obtain a copy of a deceased person’s Will or inspect it.
Sections 33Z of the Succession Act 1981 (Qld) and Section 54 of the Succession Act 2006 (NSW) make specific provision for certain categories of people and entities to obtain a copy of the Will or inspect it from those people who have possession of the Will or copies of it. Any person who has “possession or control” of the Will must allow those persons to inspect the Will or give them a certified copy of same. Whoever provides a copy of the Will is entitled to payment of their reasonable expenses but these are limited to the out of pocket expenses of producing copies, postage, etc. They are not allowed to charge any professional fees for providing this copy even if they are lawyers or accountants.
Many people think that when someone dies there will be a formal “reading of the Will“. This is an urban myth and it is rarely carried out in modern times. The categories of people who are entitled to a copy of the Will are as follows:-
- Anyone named in the will (whether or not they are named as a beneficiary).
- Anyone who is named or referred to in an earlier will as a beneficiary (even if they are not named in the latest will).
- A parent, guardian, spouse, de facto partner or child of the deceased.
- A parent or guardian of any child referred to in the will or who would be entitled to a share of the deceased’s estate if they had died intestate (i.e. without leaving a will).
- Any person who would be entitled to a share of the estate if the deceased had died intestate.
- Any person (including a creditor) who has or may have a claim at law or in equity against the estate.
- Any attorney who held an enduring power of attorney given by the deceased.
- Any person or entity who had formal management of the deceased’s affairs (e.g. Public Trust).
- Any person entitled to bring a claim against the estate for provision (normally such a person would be covered by the categories above).
As long as you fall into one of these categories, not only can you ask for a copy of the most recent Will of the deceased, you can also ask for copies of any previous Wills and/or Codicils, parts of Wills or any documents purporting to be a Will.
Normally the person holding the original Will will be the Executor of the deceased. In many cases the Will is held by private solicitors who acted for the deceased or with the Public Trust Office. Sometimes original Wills are left in the personal papers of the deceased and are in the control of their appointed Executors (this could be their surviving spouse, adult children or friends). In many cases, beneficiaries in an estate have difficulties obtaining a copy of the Will from the appointed Executors. Executors sometimes withhold a copy of the Will purely out of spite or simply refuse to cooperate and use their position as Executor to exercise some form of power over the beneficiaries.
If you fall into any of the above categories, you should attempt to obtain a copy through the usual means but if this fails, write a formal letter of demand in accordance with the relevant section of the legislation. If they still fail to provide you with a copy of the Will, you should seek legal advice in relation to bringing an appropriate application to obtain a copy of the Will (if the Executor has unreasonably refused a request resulting in Court proceedings, costs of the Court application could be awarded against the Executor.
You are welcome to contact our office with any enquiries concerning estate administration. Please contact our Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 to book your free 30 minutes appointment with one of our dedicated Estate Administration lawyers.
