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Access and inspection of Wills

Often in a will dispute or estate dispute, a party will need to get access to the Wills or similar documents from other parties or people. Whilst a person is alive, no one else generally has a right to inspect the Will of a person or see its contents. Once someone has passed away, the law provides for certain people to inspect or be given a copy of a will or previous will.

Who is entitled to copies or to inspect a will?

The Succession Act at section 54 provides a list of people who are entitled to inspect or obtain a copy of a will. These people include:

  • any person named or referred to in the will
  • any person named or referred to in an earlier will as a beneficiary
  • the surviving spouse or de facto of the deceased person
  • the children of the deceased person
  • any person who would be entitled to a share of the estate if the deceased person had died intestate (died without a Will)
  • any parent or guardian of a minor referred to in the Will or who would have been entitled to a share of the estate if the deceased person had died intestate (died without a Will)
  • any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person
  • any attorney of the deceased person under an enduring power of attorney
  • any person who was committed with management of the deceased person under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person.

If you are a person that may be able to challenge the will with a family provision claim against the estate or any other challenge to a will, you will generally be entitled a copy of most if not all of the deceased’s other wills. Immediate family members to the deceased are also generally entitled to copies of all the deceased’s wills.

What documents can be accessed or inspected?

The Succession Act allows an eligible person to inspect the ‘will’ or to a copy of a “will”.

However, the Act defines “will” to also include:

  • a revoked Will
  • part of a Will
  • a copy of a Will
  • a document purporting to be a Will

A document purporting to be a will is usually a document that embodies the testamentary intentions (wishes of the deceased person for how their estate should be distributed) but does not comply with the formal requirements of a Will. Basically, this is usually a document which someone intended to set out to who and how their assets should be distributed on their death even though it may not be a formal Will.

What if a person refuses to give you copies or you’re not sure exactly what documents they have?

The Succession Act requires that anyone who has a will in their “possession or control” must allow an eligible person (see list above) to inspect the will or have a copy of the will. If a person refuses to provide a copy or allow inspection, the Court has powers under the Probate and Administration Act to order a person to produce a copy or the original document to the Court and can then allow access to the document to other people. The Court can also require a person to attend Court and answer questions about any will or potential will if there are reasonable grounds for believing that person has knowledge about any will.

Usually a letter from a solicitor formally requesting copies of the documents is sufficient to get a response and copies of the documents from another person. However, on occasion Court proceedings may need to be commenced in order to get copies of the documents.

More information

If you think you are entitled to a copy of a will or are having trouble getting copies from a person, contact our team today for assistance and to discuss your matter.

Laws & Regulations

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DISCLAIMER

No part of these notes can be regarded as legal advice. Although all care has been taken in preparing all notes, readers must not alter their position or refrain from doing so in reliance on any of these notes. Stephen Wawn & Associates do not accept or undertake any duty of care to readers relating to any of these notes. All inquiries should be directed to Stephen Wawn & Associates.

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