How To Obtain a Copy Of a Will (Vic)
In Victoria, the Wills Act 1997 stipulates that certain eligible people have a right to obtain a copy of a deceased’s will. In most cases, the holder of the will abides by this and informs beneficiaries of the contents of the will without delay, and readily provides copies to eligible parties. This is especially the case when a solicitor or the Public Trustee has possession of the will because these entities understand that they are under a legal obligation to produce the will to certain eligible people. In circumstances when the will holder is a private individual and refuses to produce the will, a claimant has other avenues to obtain a copy of the will. This article outlines the process whereby a claimant can locate and obtain a copy of a will in Victoria.
What Is A Will?
A last will and testament is a legal document, written by a “testator” (the person who writes a will) or according to their instructions. A testator’s purpose in making a will is to dispose of their assets and to arrange for payment of their liabilities after their death. A will can contain other non-binding provisions, such as those relating to the appointment of children’s guardians, but they are not legally enforceable.
A will typically directs one or more individuals to act as executors of the estate, but this too is a non-binding nomination that the named parties have no obligation to accept. If the named executor agrees to perform the duty, they need to apply for a probate grant from the Supreme Court of Victoria to validate the will and to confirm their own authority to administrate the estate.
A testator will often leave the original of a will either with their solicitor or stored in a secure location such as a bank safety deposit box or fire-proof safe. It is highly recommended that when a testator names an executor in their will, they inform the executor of the location of the will or provides them with a copy so that they can commence the deceased estate administration without delay.
Who Can Obtain A Copy Of The Will?
A will is a matter of public record in Victoria, but only after probate is granted. Challenging a will is much more difficult after probate is granted, so it is essential that certain people have access to the document early, before someone files for a Probate Grant.
Section 50 of the Wills Act 1997 lists the parties who are entitled to obtain a copy of the deceased’s will. In order to comply with the directives of this legislation, the executor, administrator, solicitor or Public Trustee administering the deceased estate must provide a copy of the will to any of the following people:
- Anyone named or referred to in the current will, including beneficiaries, executors and trustees;
- Anyone named or referred to as a beneficiary in a previous will of the testator;
- A current spouse of the testator;
- A domestic or de facto partner of the testator;
- A guardian, parent or child of the testator;
- Anyone entitled under intestate succession law to claim against the estate;
- A parent or guardian of a beneficiary or someone entitled under intestacy law; and
- Any creditor or person who has a claim against the deceased estate.
Locating A Will
Sometimes the most significant obstacle to obtaining a copy of a will is ascertaining who has possession of the current will. The interested party should first contact the people and institutions that are most likely to know the location of the will, for instance:
- The deceased’s next of kin or other close family members
- The deceased’s lawyer or accountant
- The funeral home (as they may have been informed of the testator’s instructions for their funeral and interment, and therefore know who holds the current will)
- The Probate Office of the Supreme Court of Victoria
What If An Executor Refuses A Request For A Will?
Sometimes an eligible person is able to locate a will but is unable to obtain a copy of the will because the executor or administrator refuses to comply with the request or causes unreasonable delay. In that event, a contested wills solicitor can liaise with the executor on your behalf and remind them of their duty under law to provide copies of the will to eligible parties. It is often the case that the matter is resolved as soon as the claimant’s solicitor communicates with the will holder. If the personal representative is still recalcitrant, then your solicitor can file court proceedings to make the executor produce the will.
Our Contested Wills Team can help you obtain a copy of the will, and advise you of your rights in light of the provisions contained in the will. For any advice related to succession, testamentary or probate law, please contact our experienced team on 1300 038 223 to make an appointment.