I am regularly asked about whether an official “reading of the Will” needs to take place after someone has died. You have probably seen American movies where the family gathers after the death of a relative in an oak-paneled office while a white-haired solicitor reads out the last wishes of the deceased person.
In Australia, there is no legal requirement or customary practice to hold a “reading of the Will”. In fact, until very recently, there was not even an automatic right for family members to see a copy of the Will of the deceased person. Previously, the executor needed to consent to provide a copy of a Will to a family member or potential beneficiary. If the executor refused their consent, the person wanting a copy of the Will would have to go to the expense and trouble of applying for a Court order to obtain a copy of the Will.
On 17 November 2014, a change to the law in the ACT now gives a statutory right for certain people to inspect a copy of the Will of a deceased person. The amendment to the Administration and Probate Act 1929 (ACT) was modeled on a similar provision in New South Wales legislation.
The categories of “interested person” who can request a copy of the Will include:
• an executor or beneficiary named in the Will or an earlier Will;
• a spouse (whether married or de facto) or child of the deceased person;
• a parent or guardian of the deceased person;
• a parent or guardian of a minor who is a beneficiary under the Will;
• a person who would be entitled to a share of the estate if the deceased person had died without a Will;
• a person who was a guardian or manager for the deceased person prior to their death under the Guardianship and Management of Property Act 1991;
• an attorney for the deceased person under an Enduring Power of Attorney.
A Will is defined to include a revoked Will, an informal Will or a codicil. Therefore, an interested person is also allowed to see a copy of any earlier Wills of the deceased person.
Anyone holding a Will for a deceased person, such as an executor or a solicitor, must, upon written request from an interested person, make available a copy of the Will.
The executor is not under a positive obligation to provide a copy of the Will to all the interested persons listed above. But the executor is now under an obligation to provide a copy of the Will if requested by an interested person. The executor (or the executor’s solicitor) is entitled to ask the interested person to pay for the cost of providing the copy of the Will.
The new legislation does not give anyone the right to see a copy of a Will for a person who has not yet died. While a person is alive, they are entitled to keep the contents of their Will private.
The statutory right for certain persons to inspect the Will of a deceased person enhances accountability for executors by ensuring that all potential beneficiaries know of their entitlement. It also assists family members or potential claimants against an estate to seek legal advice early about the effect of the Will.
If you are an executor of a Will, DDCS Lawyers can assist you by explaining your responsibilities and obligations as executor, including in what circumstances you need to provide a copy of the Will to other people.
If you are a beneficiary of a Will, or are wondering if you have an entitlement to the estate of a deceased person, DDCS Lawyers can provide advice on your options and entitlements.
Rebecca Tetlow is an Accredited Specialist in Wills and Estates Law (NSW) and a Senior Associate at Dobinson Davey Clifford Simpson
phone (02) 6212 7600