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

Updated 9 November 2020.

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 get a copy can be difficult when you are not the executor or administrator.  However in some states changes to wills and succession legislation has made this easier.  The legal rules now clarify the categories of people who can see or inspect the will of a deceased person. Read on for more.

 

Contents:
Only a deceased person’s will
Seeing a will before probate
Seeing a will after probate
Who holds the will of a deceased person
Who is entitled at law to see a will?
Who might be “issue”?
What about adopted children?
Can a copy be requested?
Costs?
Legislation by state/territory

Only a deceased person’s will

Note that this only applies to a deceased person’s will. You cannot get a copy of a person’s will before they die. For example your child is not entitled to inspect your will before you die.

Exceptions to this may occur in very limited circumstances such as under a power of attorney where the donor has given their attorney specific written permission to see their will.  But the law is unclear and legal advice on the circumstances should be sought first.

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.

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

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 with the will in particular circumstances.

Technically this is called an Application for an Exemplification of a Grant/Will and is given for proper legal purposes.

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.

Who holds the will – “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 the person to see it if they are entitled to do so under the legislation.  That is, if they are within one of the categories as described by the statute.  See links below.  

People who may have possession or control of a will of a deceased are typically 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 the will of a deceased person?

All states and territories provide in their wills legislation for who can see a will, find links to the legislation below. But note that the law is not uniform across the jurisdictions. 

Taking New South Wales for example 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 is a legal term and includes all descendants of the deceased including children, see the graphic below.  Note also that under the law the meaning of ‘children’ can include adopted children and illegitimate children.
  • a 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.

Public Trustees

If you think the NSW Trustee and Guardian holds the will of the deceased you can make an enquiry to them using their Find a Will online form.  Similarly contact the public trustees in other states/territories.

“Issue” – what does it mean?

The term “issue” above has a legal meaning.  It means all the person’s descendants  including their children, see infographic.  So the children or grandchildren of a deceased could ask to see the will.  For more on issue in wills go here.

children, issue, adopted children, my issue, children, issue and children, grandchildren, descendants, inheritance, wills, deceased,
Spouses/partners are not issue and so not shown.

Adopted children

Adopted children should be entitled to see a will as a “child” under adoption legislation  together with provisions on children from the respective Interpretation Acts. The effect of these laws means that an adopted child has the same legal rights as a natural child.

What a “will” includes – what are you entitled to see?

This might seem obvious but in New South Wales for example the meaning of a “will” 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.  With the law on seeing a will not being uniform you need to check carefully what the provisions say in your state or territory.

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.

The legislation by state and territory

 


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

B Stead
BHS Legal
13 May 2014, updated 9 November 2020.

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

© BHS Legal

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