At a very emotional time, often there is confusion as to what rights and obligations exist in relation to obtaining a copy of someone’s Will.
Many clients ask us “Am I entitled to a copy of a Will?” or “Do I really need to give them a copy of the Will?”
It should go without saying that no-one is entitled to see the Will of a person who is still alive! After death however, the Succession Act 2006 (NSW) provides that any person who has possession or control of a Will of a deceased person must allow any one or more of the following persons to inspect or to be given copies of the will (at their own expense):
“(a) any person named or referred to in the Will, whether as a beneficiary or not,
(b) any person named or referred to in an earlier Will as a beneficiary of the deceased person,
(c) the surviving spouse, de facto partner or issue of the deceased person,
(d) a parent or guardian of the deceased person,
(e) any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate,
(f) any parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate of the testator if the testator had died intestate,
(g) any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
(h) any person committed with the management of the deceased person’s estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person,
(i) any attorney under an enduring power of attorney made by the deceased person,
(j) any person belonging to a class of persons prescribed by the Regulations.”
As you can see:
- there are a number of persons that have a right to a inspect or to be given a copy of the Will; and
- the executor or person with possession or control of a Will (which could include a lawyer or firm that holds it in safe custody) have an obligation to provide a copy on request.
Of course, there needs to be proof provided that the person who made the Will has in fact died – ie, provide the death certificate (which usually happens via the executor or next of kin).
The purpose of this access to the Will is partly to allow an persons with a claim on a deceased estate to know if they have been provided for in the Will, that it is the deceased person’s latest Will and who the executor is.
There is sometimes also confusion as to the effect of clauses in Wills that provide for the appointment of a particular person or firm as the estate’s lawyers for the purposes of obtaining probate. The executor is free to choose whichever lawyer or firm they wish to act for them in obtaining probate and assisting with the administration of a deceased estate.
The Probate and Administration Act 1898 provides that the Will of the deceased, once admitted to probate, is a public document and that anybody is entitled to apply for a copy of it from the Supreme Court of New South Wales (and paying the relevant fee) however, it is generally best to contact the person in possession of the document for a copy, before approaching the Supreme Court.
FURTHER INFORMATION
For further information in relation to Wills, Probate, estate planning or even International Wills, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
