Should I Tell Anyone About My Will? (NSW)

Wills and estates solicitors are regularly asked by clients: “should I tell my family what is in my will?” and “should I tell anyone I changed my will?” The short answer is that it is up to the individual testator whether they want to share the contents of a will with their family and beneficiaries. However, there are some instances when it is better to reveal the proposed distribution of a will. There are also occasions when it may be appropriate for the testator to tell people that they have changed the will. This article addresses whether a testator should tell anyone about their will in NSW.

Should I Tell Anyone About My Will?

A will is a private document, which means that only the testator is entitled to know the contents. In particular, solicitors in NSW are obliged to keep their client’s testamentary affairs confidential. The only exceptions to this duty of confidentiality are a court order or if the testator expressly waives privilege.

Testators often wonder whether they should tell anyone about the contents of their will. Some people prefer to leave testamentary matters private until after they pass away. Other people believe that being upfront with family can manage expectations and minimise the chances of later legal disputes over the will. Certainly, it is a good idea for a testator to have a frank discussion with their family so that the beneficiaries understand the testator’s thinking over the distribution of a deceased estate. However, this is very much a matter of personal preference.

Making Changes To A Will

A testator needs to regularly review and update their will to reflect any changes in their life. For example, the testator should revise the will as they acquire or sell property and add or remove a beneficiary.

A testator is responsible for keeping their will updated, but they should think carefully before disinheriting a beneficiary of the previous will. Often a disinherited person will be eligible to contest the provisions of a new will to receive a fair share of the estate. This person can make a Family Provision Claim to the Supreme Court of NSW and receive an even larger share of the estate than they were initially entitled to under the previous will.

Even if the former beneficiary is not an eligible person under the Succession Act 2006, they may still have legal recourse in equity to contest the will. When a testator has promised someone a bequest in the past and then does not follow through with their promise, the aggrieved party has grounds for a claim of equitable proprietary estoppel. A case in point is Lewis v Lewis & Anor, where the Supreme Court upheld an equitable proprietary estoppel claim on the basis that the deceased consciously led the claimant to rely on a promise that he failed to keep in his will.

When Do I Have To Tell Someone About My Will?

When spouses prepare mutual wills, they are distinctly aware of the contents of each other’s wills. Because mutual wills are a form of contract between the parties, both parties must agree to the terms contained in both documents. Someone who has prepared a mutual will cannot change this document without the agreement of the other testator.

It is not unheard of for a surviving party to attempt to revoke their mutual will after the death of the first party. In that case, the surviving party is in breach of the agreed contract terms. The beneficiaries of the original will can apply to the court to enforce the terms of the mutual wills.

Should I Tell My Executor About My Will?

There is no legal or practical necessity to disclose the contents of a will to the executor. However, it is a good idea for the testator to ask their chosen executor whether they are willing to take on the administration of the estate. The testator can take the opportunity to explain the reasons why they are asking and secure the executor’s provisional agreement. The testator may, at this time, give the executor a copy of the will or inform the executor of the will’s contents. It should not be necessary to explain the will’s contents to the executor (as the meaning of a will must be clear on its face). However, a testator may take the opportunity to explain practical aspects of their testamentary instructions, such as the location of various items. A testator may choose to let the executor know as they update the will of any pertinent changes.

Armstrong Legal recommends that you tell at least one family member that you have made a will and let them know where you stored the document. Whether you choose to share the will’s contents is up to you. Please call 1300 038 223 or contact the contested wills team today for more information on probate or testamentary matters.