How To Obtain A Copy Of A Will (Qld)
When someone passes away, they either leave behind a record of their wishes for their estate, or they die intestate (without a will). When there is a will, it guides the executor of the estate in the payment of the liabilities of the deceased and the distribution of the assets to the named beneficiaries. A copy of the will is usually provided to beneficiaries and any others who require evidence of the testator’s intentions, such as financial institutions, insurers, and solicitors. In addition, there is a class of individuals who are entitled to see a copy of the will. There is a provision in the Succession Act 1981 for certain “eligible” people to acquire a copy because they may have the right to contest the terms of the will. This article outlines how to obtain a copy of a will in Queensland.
What Is A Will?
A will is a legal document that expresses a testator’s wishes for how their estate should be dealt with after their death. It contains directives on what to do with the deceased’s possessions, whether they are bequeathed to a specific person or charity, and what to do with the testator’s surviving debts. A will may also include non-binding provisions, such as the appointment of guardians for children.
A will also typically names at least one trusted and responsible person to act as executor of the estate. This nominated person must apply to the Probate Registry of the Supreme Court of QLD to validate the will and authorise the appointment of the executor to administer the estate.
How To Locate a Will
In accordance with section 33Z of the Succession Act 1981, an eligible person can obtain a copy of a will from the executor, solicitor or Public Trustee acting on behalf of the estate. The person in possession of the original will is obligated to allow certain people to inspect the will and, if requested, provide a certified copy of the will. If the court needs to see the original will, the holder of the will is obliged to produce the will for inspection. This entitlement extends to not only the current will, but also any previous wills, codicils, drafts or letters relating to the creation of the will, and any other documents purporting to be a will.
Although eligible people have a right to access a will, the most difficult thing can be actually finding the most recent will of the deceased. The first step in locating the most recent will is to contact people and institutions and enquire about the existence of a will from:
- The next of kin of the deceased and any other likely family members;
- The deceased’s lawyer;
- The deceased’s accountant;
- The funeral home (as they may have been issued instructions contained in the will and know who holds a copy);
- The Probate Registry of the QLD Supreme Court.
Who Is Eligible To See The Will?
Certain individuals are entitled to inspect a will because they are in a class of people who are eligible to contest the provisions of the will and therefore have a right to understand the size of the estate and the current distribution of assets.
In Queensland, the list of people eligible to obtain a copy of the will is restricted to those who are:
- A beneficiary, executor, guardian or other person mentioned in the current will (named or referenced);
- A beneficiary, executor, guardian or other person mentioned in a prior will (named or referenced);
- A de facto or marital spouse of the deceased;
- A parent or guardian of the deceased;
- The biological or legally adopted issue of the deceased;
- A person who would be entitled under intestate succession law;
- The parent or guardian of a minor child mentioned in the will, or a child entitled under intestacy laws;
- A creditor and anyone with a legitimate claim against the estate;
- Anyone who held an enduring power of attorney on behalf of the deceased;
- Anyone who has formal management of the deceased estate, such as the Public Trustee or a bank;
- Anyone eligible to make a Family Provision Application.
What If Someone Refuses A Request For A Copy Of A Will?
On occasion, an eligible person locates and makes a request to access a will, but the holder of the will refuses to supply a copy or excessively delays handing over a copy. In this circumstance, it is important to contact a solicitor immediately as there are limited time frames to challenge the will and contest the estate. Communication from a solicitor notifying the holder of the will of the law will often result in the will be produced immediately.
If you need help to obtain a copy of a will, the Contested Wills Team at Armstrong Legal is ready to assist you. Please call 1300 038 223 to discuss your legal needs, or contact us using this online form.