Reading of A Will (NSW)
The reading of a will is an iconic trope of cinematic dramas and whodunits, perfectly staged to have family and friends arranged in chairs before the desk of a lawyer or executor. In dramatised versions, the lawyer reads out the contents of the late testator’s will (often accompanied by scathing character assessments), and there is immediate outcry as the inheritance is left to a lucky few while others miss out. In New South Wales, there is no requirement under the Succession Act 2006 for a formal reading of the will to occur, and in fact, this practice is rare outside the world of fiction. This article outlines the actual requirements for the dissemination of a will after a person’s death in NSW.
Reading Of A Will In NSW
There is no actual requirement for a lawyer or executor in NSW to arrange a reading of the will. However, it can be beneficial to hold a family meeting where the parties are told the terms of the will and given the opportunity to ask for clarification, as well as to make plans to progress the deceased estate administration. This can be an excellent forum to resolve misunderstandings and to discuss the options open to beneficiaries, particularly when the will allows a beneficiary to choose between, for instance, selling an asset or having it transferred into their name. An executor who holds a reading of a will can complete their preliminary obligations quickly, while there will be far more work in tracking down all eligible parties or responding to requests for information.
It can be difficult for all family members and friends to gather together at one time for the reading of a will, particularly as beneficiaries might live interstate or overseas. Even if the executor holds a meeting of some family members, he or she is still responsible for contacting all of the beneficiaries named in the will and informing them of their inheritance. This needs to be done within the executor’s year following the testator’s death. The executor must also ensure that the beneficiaries understand the meaning of the terms of the will, and any conditions attached to their inheritance.
Where there is no reading of a will in NSW, and the executor fails to do their duty and communicate with each and every beneficiary, loved ones may be left wondering whether they have received anything from their family member’s deceased estate.
Who Is Entitled To A Copy Of The Will?
There is a provision under the Succession Act 2006 for certain people to receive a copy of the will. These are the same people that would traditionally attend a reading of a will. The executor or other person who holds the will must provide a copy for anyone who is:
- Specifically named in the testator’s will (including but not limited to any beneficiaries);
- Specifically named or referenced in a previous will;
- A spouse or child of the deceased;
- A guardian or parent of the deceased;
- Entitled under intestacy regulations;
- Someone with a claim against the deceased estate; and
- Someone who managed the estate before the testator’s death;
The executor is entitled to charge for any costs associated with the production of a copy of the will.
Dealing With An Uncooperative Executor
Sometimes, an executor refuses to produce a copy of a will because of either misconduct or negligence. More often than not, it is because of simple inattention that an executor has not responded to a request for a copy of the will. An eligible person can take steps to obtain a copy of the will even if an executor is inattentive or uncooperative. Firstly, the person can contact a solicitor to liaise with the executor. Often a request from a solicitor is enough to prompt an executor to act immediately. If that fails, the next step is to contact the NSW Supreme Court to see whether they hold a copy of the will in the probate registry. An applicant to the Supreme Court will probably have to prove their eligibility under NSW succession legislation, with evidence such as a birth or marriage certificate, or a copy of the previous will).
Even when an eligible person has obtained a copy of the will, reading a will may only confuse a beneficiary or potential beneficiary further. The clauses and terms contained in a will can be obscure and difficult to understand, so it is best to consult an experienced wills and estate solicitor for clarification. This will also allow an opportunity to consult the solicitor over whether the person has any grounds to challenge or contest the will.
The contested wills team at Armstrong Legal can help if you have questions about the reasons why there is no reading of a will in NSW, or are finding it difficult to obtain a copy of the will from the estate executor. Please contact our specialist team without delay on 1300 038 223 for expert advice and guidance.