The numerous films about estates have people believe that when someone dies, the family will be summoned to a meeting with a lawyer for the ‘reading of the Will’. There is no requirement for this to occur and it rarely takes place. Instead, we often have clients who come to us because they believe they are a beneficiary of an estate (or are considering making a claim on the estate) but have not received a copy of the Will. In some cases, the Executor has refused to provide a copy.
Who is entitled to obtain a copy?
In Queensland, the Succession Act 1981 states that a person in possession of the original Will must allow certain people to inspect the Will or receive a copy. The persons entitled include:
- A person named in the Will, whether as a beneficiary, executor or other person, including in an earlier Will;
- The testator’s spouse, parent or child;
- A person who would have been entitled to a share of the estate if the testator had died intestate (meaning without leaving a Will);
- The parent or guardian of a minor child mentioned in the Will or a child entitled under intestacy;
- A creditor and anyone with a legitimate claim against the estate;
- Anyone eligible to make a family provision application.
The obligation is not limited to the last Will – it also includes prior Wills, Codicils and other documents purporting to be a Will.
How can I obtain a copy?
If you know who holds the Will, and satisfy one of the above categories, you can contact the person confirming that you are entitled under s 33Z of the Succession Act and that you would like to inspect the Will or obtain a copy. If you request a certified copy of the Will then you may need to pay their reasonable expenses.
If you are entitled to receive a copy but the person in possession of the Will is still refusing, it is important to seek legal advice. There are deadlines for Court applications (9 months from date of death for further provision) including challenging the validity of a Will or making a claim for further provision from the estate and you do not want to miss the opportunity to file an application.
What if I don’t know where the Will is?
It can be trickier if you don’t know where to begin looking for the Will. You may ask the next of kin or other family members. Otherwise, the deceased’s solicitor, accountant or even the funeral home may know where the Will is held. If a Grant of Probate is being obtained, then it is also possible to access documents from the Supreme Court of Queensland. A search in the Queensland Law Reporter will show the name and address of the person or the law firm making the Application for a Grant of Probate.
Can I seek a copy of a Will while the person is still alive?
There are no obligations to provide a copy of your Will to anyone during your lifetime. In certain circumstances your power of attorney may seek to obtain a copy of the Will to check whether they are selling assets which were specifically gifted in your Will. It is otherwise entirely up to you whether you choose to disclose the contents of your Will prior to your death.
If you think that you are affected by an estate and a Will has not been disclosed to you please contact Lauren Nolan for advice at Lauren.Nolan@Perspectivelaw.com or call us today on 07 3839 7555.