How To Obtain A Copy Of A Will
There are several reasons why someone may need to obtain a copy of a will in Australia. An executor of a deceased estate may need access to a copy of the will if the original of the will is lost or destroyed. In that circumstance, the Supreme Court may allow an application for probate with a copy of the will. Anyone who intends to challenge or contest a will needs to review the document to understand the size of the estate and the nature of the provisions. In some Australian jurisdictions, the people who are eligible to challenge or contest a will are automatically entitled to view a copy of the will before it is probated. In other states and territories that have no such statutory provision, there is common law precedent that encourages an executor to allow access to a sufficiently interested party. This article outlines how to obtain a copy of a will in Australia.
Original Will And Testament
Legally, the word “will” might refer to an informal will, a revoked will or a codicil. A valid will is a written record of a testator’s wishes for their estate after their death. The instructions contained in the will relate to the disposal of the testator’s assets to beneficiaries and arrangements for discharging the debts of the deceased estate. These instructions are binding as long as they do not contravene state and federal law. Non-binding provisions may also appear in a will, for the nomination of guardians for young children or the naming of someone as executor of the estate. This named executor is not obligated to accept the responsibility, but if they do so then they need to apply to the state or territory Supreme Court for a probate grant in order to verify their appointment and validate the current will.
Probate With A Copy Of The Will
If there is no possibility of locating the original of the will, an executor may be able to apply for a Grant of Probate with a copy of the will. The onus will be on the executor to prove to the court that the testator did not destroy the will with intention to revoke. In this circumstance, the executor will be asked:
- What happened to the original will?
- How was the will originally drafted?
- Where was the original will stored prior to it going missing?
- How extensively has the executor searched for the original?
- Why does the executor think that testator did not destroy the will?
- Where did the executor obtain a copy of the will?
Making an application for probate with only a copy of the will is difficult and unlikely to succeed without the assistance of a competent solicitor such as the lawyers on the contested wills team at Armstrong Legal.
Obtain A Copy Of the Will Before The Testator’s Death
It is not possible to obtain a copy of the will before the testator’s death without the explicit consent of the testator. A solicitor must comply with a request for a copy of the will from a legally authorised person or a court subpoena, but this is a very limited exception. In practice, solicitor’s conduct rules prohibit a lawyer from revealing the contents of a client’s will without the authorisation of their client.
Obtain A Copy Of The Will Before Probate
The following legislation allows an eligible person to obtain a copy of the will before probate:
- The Succession Act 2006 (NSW)
- The Succession Act 1981 (QLD)
- The Wills Act 1997 (VIC)
- The Administration and Probate Act 1929 (ACT)
- The Wills Act 2000 (NT)
- The Wills Act 2008 (TAS)
In these jurisdictions, upon request, an executor should provide access to:
- Anyone named in the current will
- Anyone named in a previous will
- A spouse or child of the deceased
- A parent of the deceased
- A parent of a minor named in the will
- Anyone entitled under intestate succession law
- Anyone, including a creditor, who has a claim against the deceased estate
- A trustee of the testator’s living estate
- A solicitor with enduring power of attorney for the deceased
In several Australian states there is no statutory right for someone to obtain a copy of the will before probate. In the following jurisdictions access is only legally allowed after probate is granted:
However, even in jurisdictions where there is no statutory instruction to allow access to a will before probate, recent common law encourages a common-sense approach. In Chapman v Garrigan , the court affirmed that executors should use their discretion to provide a copy of the will to sufficiently interested parties because it would be inappropriate to deny access.
Both legislation and common law principles encourage executors to be forthcoming with sufficiently interested parties over the content of a testator’s will. The solicitors at Armstrong Legal can help you identify yourself as such an eligible person to obtain a copy of the will. If we can assist you with this issue or any other legal matter please do not hesitate to arrange an appointment or call our offices on 1300 038 223.