Only eligible persons are entitled to see the will of the deceased
To see the will of a deceased person and get a copy of it can be difficult. Especially when you are not the executor or administrator. Changes to wills and succession legislation in some states have made this easier. These legal rules clarify the categories of people entitled to see or inspect the will of a deceased person. Note that this is about testamentary documents of someone who has died.
Only see the will of a deceased person
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 an enduring power of attorney. A donor (principal) may have given their attorney specific written permission to see their will. Without that it is highly unlikely that an attorney could view the principal’s original will, as after all it is a private document and the maker is still alive. Statutory provisions vary across state and territory and in some states reforms have been made for particular circumstances. Legal advice on the circumstances should be sought.
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 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 with the will in particular circumstances.
Technically this is called an Application for an Exemplification of a Grant or 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. With a will the exemplification consists of the grant of probate and a copy of the will.1
Legislation permits 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 view 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.
Range of persons who are entitled to view a will
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;
Surviving spouse, partner, family, guardian
- 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 such as the ATO, utilities such as gas, electricity, council rates; mortgagee;
Attorneys, trustees and guardians
- 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.
What are you entitled to see? And the meaning of “will”
Australian succession and wills legislation in almost all jurisdictions define the meaning of a will to include a codicil and any other testamentary disposition.
In addition the law permitting inspection of a deceased’s will states what documents can be viewed. For example in New South Wales these documents are listed under s 54(1) of the Succession Act 2006 (NSW) which begins by stating what a “will” includes”:
“will” includes a revoked will, a document purporting to be a will, a part of a will and a copy of a will.