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17 September 2010 The right to inspect a Will without a court order and prior to probate being granted

By Caroline Bass, Senior Associate


In brief - Access to Wills under the Succession Act

Since the Succession Act was introduced in NSW, provisions have been in place entitling certain people to inspect Wills. This is the case prior to probate being granted and without a court order. Anyone holding a Will on behalf of a deceased person must promptly and properly comply if there are obligations to provide access to the Will.


What documents can be inspected?

A person who has possession or control of the Will of the deceased person must allow certain individuals to inspect or be given copies of a Will. This includes not only an original Will, but any previous Wills and any documents purporting to be a Will.

Persons who can inspect a Will

Persons who can request access to a Will are:

  • Any person named or referred to in the Will, whether as a beneficiary or not
  • Any person named or referred to in an earlier Will as a beneficiary of the deceased person
  • A surviving spouse, de facto partner (including same sex) or child of the deceased person
  • A parent or guardian of the deceased
  • Any person who would be entitled to a share of the estate of the deceased if the deceased person had died intestate (without a Will)
  • Any parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate of the deceased person if the deceased had died intestate
  • Any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person
  • Any person committed with the management of the deceased person’s estate under the New South Wales Trustee & Guardian Act 2009 immediately before the death of the deceased person
  • Any attorney under an enduring power of attorney made by the deceased person
Why a person may wish to inspect a Will

There could be various reasons why a person may wish to inspect a Will:

  • If there is a potential dispute about who should apply for probate or deal with the administration of the estate, for example, if the Will is unclear
  • If a person may be eligible to make a family provision claim and wants to discover promptly whether the deceased has made adequate provision for him or her
  • A person may be seeking to challenge the Will or the appointment of the executors
  • A person may be seeking to challenge the Will on grounds of testamentary capacity or undue influence and may wish to access previous Wills to see if there is consistency in the terms of the Wills
  • A creditor may wish to know whether the deceased had particular assets and to whom the assets will be distributed

The provisions of the Act now allow for inspections of Wills to take place prior to any legal proceedings being issued.

Summary - Potential beneficiaries and creditors should obtain legal advice

If a person is a potential beneficiary or a creditor of a deceased estate, they should obtain legal advice as to whether it is prudent for them to request a copy of the Will before probate is granted.

For further information please contact:

Annette Wilson, Partner  |  Phone: +61 2 9233 5544  |  Email: amw@swaab.com.au

If you would like to republish this article, it is generally approved, but prior to doing so please contact the Marketing team at marketing@swaab.com.au

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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