When someone who has made a Will dies, the executor is responsible for administering the deceased estate in the beneficiaries’ best interests. If the executor won’t give beneficiaries or family members a copy of the Will, or if their behaviour is in other ways detrimental to beneficiaries, they can be held to account.

What are the executor’s duties?

An executor is responsible for organising the funeral and cremation or burial of the deceased. It is also the executor’s responsibility to deal with the estate’s assets and liabilities, which may include selling property, paying debts and distributing the remaining funds to beneficiaries.

An executor’s duties are to:

1. locate the final Will;
2. administer the estate in the beneficiaries’ best interests;
3. keep accurate records of transactions completed in relation to the estate;
4. communicate with the beneficiaries promptly and clearly;
5. finalise the estate within a reasonable time (generally one year from the deceased’s death);
6. give beneficiaries final statements confirming finalisation of the estate.

What can I do if the executor won’t give me a copy of the Will?

Section 54 of the Succession Act 2006 sets out the classes of persons entitled to inspect a deceased person‘s Will. A person who has a copy of the Will must give access to the Will to:

1. Anyone named in the Will;
2. The deceased’s child, spouse or partner;
3. A parent or guardian of the deceased;
4. Anyone who would be entitled to inherit from the deceased under the laws of intestacy;
5. The parent or guardian of a minor referred to in the Will or entitled to inherit under the laws on intestacy;
6. A person named as a beneficiary in an earlier Will by the deceased;
7. Anyone who may have a claim in law or equity against the estate of the deceased;
8. Any attorney under an enduring power of attorney made by the deceased;
9. Anyone committed with managing the deceased’s estate under the NSW Trustee and Guardian Act 2009 immediately before their death;
10. Anyone belonging to a class of person prescribed by the regulations.

If you belong to any of the above classes of person and the executor won’t give you a copy of the Will, you should seek legal advice.

Passing over an executor who won’t provide a copy of the Will

If an executor is unsuitable to act in the role or is behaving inappropriately, a beneficiary may apply to the Supreme Court of NSW to have them passed over. This means that someone else is appointed as executor in place of the unsuitable executor.

If the Will names more than one executor, passing over an executor may be simple as one of the other persons named may be appointed instead. If the Will names only one person as an executor, passing them over will require someone else to be appointed instead.

The court will require evidence as to why the person named as executor is not suitable to carry out the task. Courts are generally reluctant to overrule the deceased’s wishes as to who administers their estate and will not pass over an executor lightly. However, if there are serious concerns supported by evidence about an executor’s ability or suitability to act in the role, the court will pass them over and appoint someone else instead.

Removing an executor who won’t provide a copy of the Will

If a person named as an executor has already been granted probate and concerns about their behaviour arise, a beneficiary may apply to the Supreme Court to remove them as executor. The application must be accompanied by evidence of why the person is not capable of or suitable to act as an executor. An executor refusing to give a beneficiary a copy of the Will may be sufficient evidence.

If the court is satisfied that an executor has been guilty of significant misconduct or is not capable of carrying out their executorial duties, it will remove them as executor and appoint another person in their place.

Here to Help

Contact us for legal advice or representation concerning an executor who refuses to provide you with a copy of the Will.