How can I view someone’s Will?

Several times each year my phone rings and someone asks me how they can locate and view the Will of someone close to them.

The circumstances of these requests vary, but can be broken down into two main groups: Someone has recently died, and their relative wants to know if they are a beneficiary; or an elderly person is becoming forgetful and their relative is concerned that they have been coerced into changing their Will, and want to satisfy their curiosity.

The contents of a Will are private and are not able to be disclosed without the testator’s authority until after they have died.

In Australia, a Will becomes a public record when it has been admitted to probate – which may not be required in every case. Once the Will has been admitted to probate, anyone can then request a copy from the Court.

Before a person dies, very few people have a legitimate entitlement to demand access to their Will, and then only in specific circumstances.

After a testator has died, and once their Will has been lodged at Court – generally as a routine part of the probate process – then access to the Will is typically governed by a mixture of Rules of Court and Administration & Probate laws & rules, which are fairly uniform throughout the States and Territories of Australia.

However, the time-period between the death of the testator and the application for the Grant is not as uniformly-controlled, giving rise to unexpected results and potential injustices in some jurisdictions.

In recent years, I have received increasing numbers of enquiries from persons with ostensibly legitimate interest in the Will of a deceased person, but have met with obstruction by the custodian of the Will, who in South Australia has no obligation to disclose any information about the Will or its contents.

Whether the original Will is held by a solicitor or by someone else, their authority to retain custody of such a document following the confirmed death of the Testator can only emanate as follows:

• The Will belongs to the estate, and the Executor(s) named therein has ostensible authority to deal-with and bind the estate;
• However, the legitimacy of the Executor’s authority turns upon the validity of the Will which may be susceptible of challenge;
• If the custodian of the Will (be it Executor or solicitor-upon-instructions) is obstructive, the requestor is put to the extra cost and delay of Court action, merely to determine the contents of the Will, to inform their decision as to whether a challenge or claim should be made in the first place. The circularity and inefficiency of this process is obvious.

What if the testator is alive?

There are some circumstances where you might be able to obtain a copy of the Will before the testator has died. For example:

You can request a copy directly from the testator and the testator can decide to provide a copy to you – though, the testator can say no!

If you are the testator’s agent under Enduring Power of Attorney, there may be a specific power in the document that allows you to obtain a copy of the Will after the testator has lost legal capacity.

This would be fairly unusual. This power needs to be specifically stated in the Power of Attorney document and only the agent can view the Will (and they have no right to change or revoke it).

If contained in the Power of Attorney, this power is given so that the agent can confirm that the sale of certain assets to benefit the testator will not defeat the intended gifting under the Will.

In some states, an agent has the right to obtain a copy of the Will in certain circumstances – but this differs from state to state and you should get specific advice for your situation.

In some circumstances, the Court may make an order ordering the release of a copy of the Will if it is considered necessary to resolve a dispute.

Even though you might be able to look at a Will before the testator dies, it is important to remember that if the testator has testamentary capacity, they are able to revoke and replace their Will – so what you read is subject to change!

If you are wondering about your rights as to the release of a Will and want some advice, call us on 08 8212 7233 or email us on mail@genders.com.au.

What if the testator has died?

Not every Will is admitted to probate, or you may want to see a copy of the Will before it is admitted to probate. If you are the Executor of the Will, you are entitled to see the Will so that you can administer the Estate.

The Executor is entitled to collect the original Will. If the Will is held by a law firm, you will usually be required to provide evidence that the testator has died and provide documents to verify your identity before the Will is released to you.

In some states (for example, New South Wales), you just need to be named in the Will to see a copy of it. In other states, you are only entitled to see a copy of the Will if you are named as a beneficiary.

In some states (such as South Australia), a beneficiary is not entitled to see a copy of the Will until after the Executor has obtained a Grant of Probate.

As at 1st January 2023, the majority of jurisdictions in Australia make specific legislative provision for interested persons to be provided access to the Will of a deceased person prior to Probate.

The Wills Acts in VIC, TAS & NT as well as the Succession Acts in NSW & QLD all contain such provisions, but with slight variations. The Wills Acts in SA, WA and ACT do not contain such provisions.

It will be seen that this law is not uniform across Australia so it depends on the circumstances.

In some circumstances, the Court may make an order ordering the release of a copy of the Will if it is considered necessary to resolve a dispute.

If you are dealing with an issue relating to access to a Will, we can help and clarify the situation. Call us on 08 8212 7233 or email us on mail@genders.com.au.

Unfortunately, the rules are not uniform across Australia or straightforward. Your entitlement to see someone else’s Will really depends on the circumstances and where the Will is located.

If you would like more information about your circumstances, call us on 08 8212 7233 or email us on mail@genders.com.au .

Protecting yourself, your family and your assets has never been more important. As part of this process, it’s a very good idea to look at putting all your affairs in order and explore your estate planning options, by contacting a specialist lawyer who is experienced in estate planning in South Australia.

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