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

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.

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