How To Obtain A Copy Of A Will (NSW)
There are several circumstances where someone may need to obtain a copy of a will. Any person who is considering challenging or contesting a will needs to have access to the document so they can review the size and nature of the bequests. In New South Wales, there is statutory provision for certain categories of people to have access to a will before it is probated. This article explains how to obtain a copy of a will in NSW.
Original And Copy Of A Will
A will can refer to a broad range of documents, including a valid will, revoked will, informal will, and codicil to a will. To qualify as a “valid will”, the document must be a written testament of the deceased’s last wishes for their estate in the future. The provisions of a will set out instructions for the payment of liabilities and the distribution of remaining assets to beneficiaries. These provisions are legally binding unless prohibited by federal or state law, or substituted by a court of competent jurisdiction. A testator has the option to include non-binding provisions in their will, for instance to nominate a potential guardian for minor children.
A will is also the vehicle for a testator to appoint a trusted person as executor of their estate. A nominated executor is not required to agree, but should they choose to accept the responsibility, they will usually apply to the Supreme Court of NSW for a Grant of Probate to validate the will and their appointment as executor.
Applying For Probate With A Copy Of The Will
An executor of a deceased estate needs an original of a will to apply for a Grant of Probate, but may have to resort to a copy of a will if they are unable to locate the original document. If an original of the will cannot be obtained, the Supreme Court may or may not allow the application for probate using a copy. Applying for probate with a copy of a will is not a straightforward process and requires the assistance of an experienced solicitor. The executor will have to convince the court that the absence of the original does not mean that the testator deliberately destroyed the will in an act of revocation. The executor will have to answer questions about the creation and storage of the original will, how thoroughly the executor searched for the original, and the basis for the executor’s belief that the testator did not destroy the will.
How To Obtain A Copy Of A Will During The Testator’s Lifetime
Family members are often interested in finding out the disposition of their parent or grandparent’s will before their death. Some testators are happy to inform their family of the details of their estate planning, in the hope that there will be no surprises or disputes later. There is, however, no legal obligation for a testator to inform their family or beneficiaries of the contents of their will. No one, including someone with power of attorney over the testator, can obtain a copy of the will without the testator’s consent. Solicitor conduct rules also strictly prohibit a solicitor from revealing the details of a will without the consent of the testator or a binding court order.
Who Can Obtain A Copy Of A Will Before Probate?
Section 54 of the Succession Act 2006 states that a limited list of people can inspect or obtain a copy of a will before it is probated. A copy of the will must be made available at the requestor’s expense. The executor or administrator of an estate must allow access to:
- anyone who is named or referenced in the current will;
- anyone named as a beneficiary in a previous will;
- a spouse or de facto partner or child of the deceased;
- a guardian or parent of the deceased;
- a person who is eligible to inherit if the estate is intestate;
- a guardian or parent of a minor referenced in the will, or who would be eligible under intestate succession law;
- anyone who has a claim against the deceased estate;
- anyone who had management of the testator’s estate, under the NSW Trustee and Guardian Act 2009, immediately before their death;
- an attorney with enduring power of attorney for the deceased person;
- anyone specified according to NSW succession regulations.
How To Obtain A Copy Of A Will Before Probate
For those who are eligible to view the will, sometimes the problem is tracking down a copy of the will. Armstrong Legal recommends approaching the executor or administrator first, as they are most likely to have possession of the will and are obligated to pass over a copy to eligible persons. If the identity of the executor is unknown, it may be possible to find out the contact details by monitoring local newspapers for a legal notice or death notice. In case that approach is unsuccessful, then the interested party should contact the testator’s solicitor or the probate registry of the NSW Supreme Court.
In NSW, certain people have a legal right to obtain a copy of a will before it is probated. The experienced Contested Wills Team at Armstrong Legal can help you to gain access and advise you on the best approach if you want to challenge or contest a will. Please call us on 1300 038 223 or contact us to make an appointment at your convenience.