Who can see the will of a deceased person & can you obtain a copy?

To see the will, view it or obtain access to the will of a deceased person

see the will, wills, probate, deceased estate, copy of someone's will, WillsHubTo see the will of a deceased person and getting a copy can be difficult when you are not the executor or administrator.  However in some states changes to the legislation on wills and succession has made this easier by making it clear the category of persons who are entitled to see or inspect the will of a deceased person. 

Note that this applies to a deceased person, you cannot get a copy of a person’s will before they die.  Exceptions to this may be in limited circumstances such as under a power of attorney, where the attorney has been given specific permission as part of their powers to see the will but the law is unclear.

Seeing a will before a grant of probate has been issued

The probate process can take considerable time, varying from weeks to months,so anyone wanting to see the will of a deceased person has to wait.  In the meantime, executors are not obliged to inform beneficiaries about the contents of a will prior to the issue of probate.

Seeing the will after it has been proved by the Court and a grant of probate issued

The executor is responsible for applying to the Probate Division or Registry of the Supreme Court for a grant of probate. The probate notices can be searched to see whether an application for probate has begun. This can usually be done online on the relevant Probate Registry’s website.  Once the Court issues a grant of probate, which has the will attached to it, these documents then become public, and enquiry may be made to the Probate Registry to view it.  Court Registries may charge a fee for this.

In New South Wales for example, it may be possible to apply to the Supreme Court for a sealed or certified copy of a Grant of Probate or will, in particular circumstances.  Technically this is called an Application for an Exemplification of a Grant/Will and is given for proper legal purposes.

“Exemplification” refers to an official copy of a document made by a court and authenticated by the court’s seal.  In the case of a will document, the exemplification consists of the grant of probate and a copy of the will together.1

Legislation allows some people to see the will of a deceased

As mentioned, wills and succession legislation in most states and territories (listed below) provide that access can be given to certain categories of people to see someone’s will after they have died.

Where the law allows for a copy to be requested, as in New South Wales, the copy is at their own expense. Note that it is only a deceased person’s will which can be inspected.

As the statutory provisions on this topic vary widely from one state/territory to another, it will be necessary to look up the provisions in the legislation of the relevant state where the deceased lived, see links below. Consequently it is not possible to make a definitive list of persons.

“Possession or control” of the will of a deceased person

The statutory provisions in New South Wales for example, provide that a person who has “possession or control of a will of a deceased” must allow an entitled person to see it.

People who may have possession or control of a will of a deceased are the executor/s, the solicitor who prepared it, close family: spouse, partner, parents, perhaps a close friend, their accountant.

Who is entitled to inspect or see a will of a deceased person?

In New South Wales, (see links to other states’ legislation and the Northern Territory below), there is a wide range of people who are entitled under s 54 of the Succession Act 2006 (NSW), to inspect or see a will.  They include the following:

  • anyone named or referred to in the will of the deceased, whether or not as a beneficiary;
  • anyone named or referred to in an earlier or previous will as a beneficiary of the deceased;
  • the surviving spouse, de facto partner or issue of the deceased;
  • Issue includes all descendants of the deceased.  This includes children.  Note that in law ‘children’ can include adopted children and illegitimate children. 
  • de facto partner is described in s 21C of the Interpretation Act 1987 (NSW).
  • a parent or guardian of the deceased;
  • anyone who would be entitled under the statutory rules to a share of the deceased estate if they had died intestate (without leaving a will);
  • a parent or guardian of a minor if no will was left and the minor would be entitled under the intestacy rules;
  • anyone to whom the deceased owed money or credit.  That is anyone who has or may have a claim against the deceased estate, that is creditors;
  • any attorney under an enduring power of attorney made by the deceased;
  • any person committed with the management of the deceased’s estate under the NSW Trustee and Guardian Act 2009 (NSW) immediately before their death;
  • anyone else belonging to a class of persons prescribed by the regulations.

If you think the NSW Trustee and Guardian holds the will of the deceased you can enquire using their online form.

“Issue” – what does it mean?

The term “issue” above has a legal meaning.  It means all the person’s descendants  including their children.  So the children or grandchildren of a deceased could ask to see the will.

Adopted children

Adopted children should be entitled to see a will as “child” under the various statutes, including the Interpretation Acts  includes adopted children as well as natural children.

What a “will” includes – what are you entitled to see?
In New South Wales, the meaning of a “will” in this situation, is not restricted to being the “last will”.

The section provides that a “will” can include part of a will, a copy of a will, a document that seems to be a will, a cancelled (revoked) earlier will, meaning that anything fitting into these descriptions could be asked for.

Can a copy be requested?

Yes, in New South Wales the legislation provides that if copies are asked for by someone who is eligible under the law, they must be provided and are entitled to charge a reasonable fee to do so.  However this is not always the case in other Australian states and territories. 

In South Australia the Law Handbook by the Services Commission has useful information here on how and when you can get a copy of a will.  

Costs?

The cost of copying is at the expense of the person requesting.  Such costs should be reasonable.  As to further costs, a person entitled under the law to see a decease’s will and/or have a copy should not be charged by anyone in possession or control of it as this is an entitlement as of right under the legislation, (in those states/territory where it applies).

It will depend on the circumstances but if contacting someone to enquire about seeing the will of a deceased and/or obtaining a copy of it, you may need to provide proof of who you are, and the relationship or connection to the deceased so as to establish that you are entitled under the law.

NSW: 
“Persons entitled to inspect will of deceased person”, s 54 of the Succession Act 2006
Queensland:
“Persons entitled to inspect a will or to obtain a copy of a will”, s 33Z of the Succession Act 1981
Victoria:
“Who may see a will?”, s 50 of the Wills Act 1997
Tasmania:
“Persons entitled to see will”, s 63 of the Wills Act 2008
Northern Territory:
“Persons who are entitled to see will”, s 54 of the Wills Act 2000.
South Australia:
“Office copy of whole or part of will, or part of will, or of probate or administration, may be obtained”, s 30 of the Administration and Probate Act 1919 (SA)
Western Australia:
“Court may allow access to will”, s 45 of the Wills Act 1970 (WA).

 


1.  Peter Butt, Ed, Butterworths Concise Australian Legal Dictionary, 3rd ed.

B Stead
BHS Legal
13 May 2014, updated 1 July 2019.

Important notice: This article is intended for general interest and information only. It is not legal advice, nor should it be used as a substitute for legal advice. Always consult a legal practitioner and/or other professional for specialist advice specific to your needs and circumstances, and rely on that.

© BHS Legal

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