What if the Executor Won’t Provide a Copy of the Will? (NSW)

When someone dies after having made a will, the person named as executor is responsible for administering the deceased estate in the best interests of the beneficiaries. If an executor won’t provide a copy of the will to family members or beneficiaries, or if they are behaving in other ways that are detrimental to beneficiaries, they can be held to account. This article sets out what can be done if an executor won’t provide a copy of the will.

What are the duties of executors?

An executor is responsible for dealing with the assets and liabilities of the deceased estate. This may include paying debts, selling property and distributing the remaining funds between beneficiaries. An executor is also responsible for organising the funeral and burial or cremation of the deceased.

An executor has the following duties:

• To locate the final will;
• To finalise the deceased estate within a reasonable time (generally one year from the date of the deceased’s death);
• To communicate with the beneficiaries clearly and in a timely manner;
• To keep accurate records of all transactions completed in relation to the estate;
• To administer the estate in the best interests of the beneficiaries;
• To provide beneficiaries with final statements confirming finalisation of the estate.

What can be done if the executor won’t provide a copy of the will?

Under section 54 of the Succession Act 2006, certain classes of persons are entitled to inspect the will of a deceased person. A person who has a copy of the will must give access to the will to:

• A person named in the will as a beneficiary;
• A person named as a beneficiary in an earlier will by the deceased;
• The deceased’s spouse, partner or child;
• A parent or guardian of the deceased;
• Anyone who would be entitled to inherit from the deceased under the laws of intestacy;
• Anyone who may have a claim in law or equity against the estate of the deceased;
• The parent or guardian of a minor referred to in the will or entitled to inherit under the laws on intestacy;
• Any person committed with managing the deceased’s estate under the Trustee and Guardian Act 2009 immediately before their death;
• Any attorney under an enduring power of attorney by the deceased;
• Any person belonging to a class of person specified under the regulations.

If you belong to any of the above classes of person and the executor won’t provide a copy of the will, you should seek legal advice immediately.

Passing over an executor who won’t provide a copy of the will

If an executor is behaving inappropriately or is unsuitable to act in the role of executor, a beneficiary may apply to the Supreme Court to have them passed over. This means that they are not appointed as executor and someone else is appointed instead.

If the will of the deceased names more than one person as executor, passing over an executor may be simple as one of the other persons named may simply be appointed instead. If only one person is named as an executor in the will, passing them over will mean appointing someone else instead.

The court will require evidence of why the person named as executor is not suitable to carry out the task. Courts are generally reluctant to overrule the wishes of the deceased as to who administers their estate and will not pass over an executor lightly. However, if there are serious concerns about an executor’s ability or suitability to act in the role and this is supported by evidence, the court will pass them over and appoint another person instead.

Removing an executor who won’t provide a copy of the will

If a person named as an executor has already been granted probate and concerns about their behaviour arise, an application can be made to remove them as executor. This application may be made to the Supreme Court by a beneficiary and must be accompanied by evidence of why the person is not capable of or suitable to act as an executor. If an executor won’t provide a copy of the will to beneficiaries this may provide all or part of the reason for such an application.

If the court is satisfied that an executor is not capable of carrying out the duties of an executor, or that they have been guilty of significant misconduct, it will remove them as executor and appoint another person in their place.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.