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

When someone dies with a will, the person named as executor in their will is responsible for administering their estate in the best interests of the beneficiaries. If an executor won’t provide a copy of the will to beneficiaries or other interested parties, or if they are behaving in other ways that pose risks to beneficiaries, they can be held to account. This article explores 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 administering the deceased estate. This may include paying debts, selling property and distributing funds between beneficiaries. An executor is also required to organise the funeral and burial or cremation of the deceased person.

An executor has the following duties:

• To locate the final will of the deceased;
• To finalise the estate of the deceased within a reasonable time (generally 12 months from the date of the deceased’s death);
• To communicate with the beneficiaries in a clear and timely manner;
• To keep accurate records of their dealings in relation to the estate;
• To administer the estate in the beneficiaries’ best interests;
• To provide beneficiaries with final statements confirming the estate has been finalised.

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

Under section 33Z of the Succession Act 1981, certain classes of persons are entitled to inspect or obtain a copy of the will of a deceased person.

Entitled persons are:

• A person mentioned in the will;
• A person mentioned in an earlier will;
• A spouse, parent or child of the testator;
• A person who would be entitled to a share of the estate under intestacy laws;
• A parent or guardian of a minor mentioned in the will or who would be entitled to a share of the estate under intestacy laws;
• A person who has a claim in law or equity against the estate
• A person who is entitled to apply for maintenance from the estate under section 41.

If a person belongs to any of the above classes of person and the executor won’t provide a copy of the will, they 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 have them passed over. This means that the person is not appointed as executor and someone else is appointed instead.

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

The court will require evidence of why the person named as executor is not suitable to carry out the task. Courts will not overrule the wishes of the deceased as to who administers their estate lightly. They will require compelling evidence of why the executor should be passed over. However, if there are serious concerns about a person’s ability or suitability to act in the role of executor, the court will pass them over and appoint another person instead, in order to protect the rights of the beneficiaries.

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

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

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

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