Obtaining Access to the Deceased’s Will

Date: Nov 17, 2010
Document Type: Article
Getting to see the will of a deceased can sometimes be a problem.
 
Section 54 of The Succession Act 2006 is designed to overcome that problem.
 
The Succession Act 2006 introduced a provision that certain classes of people are entitled to access wills even before Probate is granted and without a court order.
 
The statutory right makes it administratively easier to inspect or obtain copies of the will. The right applies to previous wills even if they have been revoked.
 
The classes of people who can apply to inspect or obtain copies of the will are:
 
1             any person named or referred to in the will, whether as a beneficiary or not;
 
2             any person named or referred to in an earlier will as a beneficiary of the deceased;
 
3             the surviving spouse, de facto spouse (whether of the same or the opposite sex) or issue of the deceased;
 
4             a parent or guardian of the deceased; 
 
5             any person who would be entitled to a share of the estate of the deceased if the deceased had died intestate, (i.e. without making a will);
 
6             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 deceased if the deceased had died intestate;
 
7             any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased;
 
8             any person committed with the management of the deceased’s estate under the New South Wales Trustee and Guardianship Act 2009 immediately before the death of the deceased;
 
9             any attorney under an Enduring Power of Attorney made by the deceased; and
 
10         any person belonging to class of persons prescribed by the regulations.
 
A person, such as a solicitor or a trustee, who has possession or control of the will of a deceased must allow any of the above to inspect or obtain copies of the will, which includes the final unrevoked will, any previous wills or any document purporting to be a will.
 
The right to access a will applies before Probate is granted. 
 
A person may apply for access if there is a potential dispute about who should apply for Probate or Letters of Administration.
 
A person eligible to make a family provision claim can promptly now find out whether the deceased has made adequate provision for them so that they can consider whether they should make a claim. A family provision claim must be made within 12 months of the date of death unless the Court gives leave for proceedings to be commenced after 12 months.
 
A person seeking to challenge the will or the appointment of the executors may want access to the will to consider if there are any grounds to challenge the will or the appointment of executors before Probate is granted.
 
A person seeking to challenge the will on grounds of testamentary capacity or undue influence may wish to access previous wills to see if the last unrevoked will is consistent with previous wills. The person can now do so without starting proceedings and issuing a subpoena for production of previous wills.
 
A person entitled on intestacy may want to check whether the will has a valid residuary provision.
 
A creditor may wish to know whether the deceased had particular assets and identify to whom assets are to be distributed.
 
The solicitor providing access can charge a fee and disbursements such as photocopying, but the costs of obtaining the will should not be significant.
 
A person who has possession of control of the deceased’s will is obliged to allow the above class of person to inspect or (at the person’s expense) be given copies of the will. A person who has possession or control of the will of a deceased person must produce it in a Court if the Court requires the person to do so.
 
If you have a question about a will or about your rights (or obligations) or about the way in which an estate is being administered, phone us on 8268 4000.
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