There are several circumstances where someone may need to obtain a copy of a Will. A person who is considering challenging a Will needs to have access to the document so they can review the size and nature of the bequests. In New South Wales, there is statutory provision for certain categories of people to have access to a Will before it is probated.
Original and copy of a Will
A Will can refer to a broad range of documents, including an informal Will, a valid Will, a codicil to a Will, and a revoked Will. To qualify as a valid Will, the document must be a written testament of the deceased’s last wishes for their estate. A Will contains instructions for the payment of liabilities and the distribution to beneficiaries of the remaining assets. These provisions are legally binding unless substituted by a court of competent jurisdiction or prohibited by federal or state law. A Will may include non-binding provisions, such as nominating a guardian for a testator’s minor children.
A Will also appoints an executor of the estate. A nominated executor generally applies to the Supreme Court of NSW for a Grant of Probate to validate their appointment as executor and the Will.
Applying for probate with a copy of the Will
An executor of a deceased estate needs an original Will to apply for a Grant of Probate, but if they cannot locate the original Will they may have to resort to a copy. In those circumstances, the Supreme Court may or may not allow a grant of probate based on an application using a copy. Applying for probate with a copy of a Will is a complex process, requiring the assistance of an experienced solicitor. The executor has to convince the court that the absence of the original does not mean that the testator deliberately destroyed the Will in an act of revocation. The executor has to answer questions about the creation and storage of the original Will, how thoroughly they searched for the original, and the grounds for their belief that the testator did not destroy the Will.
How to obtain a copy of a Will during the testator’s lifetime
Family members are often interested in finding out the disposition of their parent or grandparent’s Will before their death. Some testators are happy to inform their family of the details of their estate planning, hoping that such disclosure may prevent disputes or surprises later. There is, however, no legal obligation for a testator to inform their family or beneficiaries of the contents of their Will. No one, including someone the testator has appointed as their attorney, can obtain a copy of the Will without the testator’s consent. Solicitors’ conduct rules also strictly prohibit a solicitor from revealing the details of a Will without a binding court order or the consent of the testator.
Who can obtain a copy of a Will before Probate?
Section 54 of the Succession Act 2006 permits certain people to inspect or obtain a copy of a Will before it is probated. The executor or administrator must make available a copy of the Will at the requestor’s expense to:
- anyone who is named or referenced in the current Will;
- anyone named as a beneficiary in a previous Will;
- a guardian or parent of the deceased;
- a person who is eligible to inherit if the estate is intestate;
- a spouse or de facto partner or child of the deceased;
- anyone who has a claim against the deceased estate;
- anyone who had management of the testator’s estate, under the NSW Trustee and Guardian Act 2009, immediately before their death;
- a guardian or parent of a minor referenced in the Will, or who would be eligible under intestate succession law;
- an attorney with enduring power of attorney for the deceased person; and
- anyone specified by NSW succession regulations.
How to obtain a copy of a Will before Probate
If you are a person eligible to view the Will, the problem may be tracking down a copy. We recommend that you approach the executor or administrator first, as they are most likely to have possession of the Will and are obligated to pass over a copy to eligible persons. If you do not know who the executor is, you may be able to find out their contact details by monitoring local newspapers for a death notice or online probate notices. If that approach is unsuccessful, you should contact the testator’s solicitor or the Probate Registry of the NSW Supreme Court.
We can help you to gain access and advise you on the best approach if you want to challenge a will. Please contact us to make an appointment.
