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.

Applying for probate with a copy of the Will

An executor of a deceased estate needs an original Will to apply to the Supreme Court of NSW for a Grant of Probate, but if they cannot locate the original Will they may have to resort to a copy. The Supreme Court may or may not allow a grant of probate based on an application using a copy of the Will.

Applying for probate with a copy of a Will is a complex process. 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.

Can I 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 may inform their family of the details of their estate planning, hoping by such disclosure to 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 the testator’s attorney) can obtain a copy of the Will without the testator’s consent. Solicitors’ conduct rules also prohibit a solicitor from revealing the details of a Will without a 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 (NSW) requires the executor or administrator to make available to certain people at the requestor’s expense Section 54 of the Succession Act 2006 (NSW) requires the executor or administrator to make available to certain people at the requestor’s expense a copy of a Will before it is probated.

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.

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