How to Obtain a Copy Of a Will (WA)
In Western Australia, only an executor is legally entitled to obtain a copy of a will before it is probated and becomes public record. Unlike other jurisdictions in Australia, in WA there is no statutory entitlement for eligible parties to view the contents of a will before probate is granted. This delay can present a problem for anyone intending to challenge or contest a will under the Family Provision Act 1972. However, there is common law precedent that suggests that an executor should allow a “sufficiently interested” party to obtain a copy of a will without delay. This article explains the processes involved in locating and obtaining a copy of a will before and after probate.
What Is A Will?
A will is a legal record of a person’s wishes for their property after their death. The testator (the writer of the will) leaves instructions in their will to discharge their liabilities and distribute the remaining assets of their deceased estate to chosen beneficiaries. A testator can include additional non-binding provisions in their will, for instance, the appointment of guardians for minor children, but these provisions are not enforceable under WA law.
Another non-binding clause of a testator’s will is the nomination of certain parties to act as executor of the deceased estate. The named executor/s apply to the Supreme Court of WA for a probate grant to validate the will and verify their right to administer the estate.
An executor must have possession of the original will of the deceased in order to file a Grant of Probate. It is therefore essential that the executor can locate the original will without delay. The testator should inform the named executor/s of where the will is stored, or if a solicitor holds the original, give the executor a copy of the will so that the administration of the estate is not unduly delayed.
If the original of the will cannot be located, it may be possible to obtain a Grant of Probate with a copy of the will. The obstacle here is that when the original cannot be found, the court assumes that the testator destroyed the document with the intent to revoke the will. In this circumstance, the executor must provide the court with evidence to refute the supposition of revocation by destruction. The executor will need to answer certain questions regarding the treatment of the document, such as:
- Where was the original will kept?
- Under what circumstances was the will made?
- What is the executor’s theory on what happened to the original of the will?
- What searches were conducted to locate the original?
- How did the executor come into possession of a copy of the will?
- Why does the executor assume that the testator did not destroy the will?
An application for probate of a copy of a will is complicated and the executor should consult a probate solicitor for assistance.
Can Someone Obtain A Will Before The Testator’s Death?
Even a “sufficiently interested” party cannot obtain a copy of the will during the testator’s lifetime without the consent of the testator. The only exception is provided by the Guardianship And Administration Act 1990: under this legislation a representative of the State Administrative Tribunal with plenary powers can inspect any testamentary instrument of the represented person. A lawyer must also hand over a will if compelled by law, such as in response to a court subpoena.
Other than these exceptions there is an absolute prohibition, codified in the Legal Profession Conduct Rules 2010, against lawyers disclosing client information, including the contents of a will, without the express or implied authorisation of their clients.
How To Obtain A Copy Of The Will Before Probate
While there is no statutory instruction that allows interested parties to obtain a copy of the will before probate, there has been recent common law revision of the matter. In Chapman v Garrigan , the Court recommended that executors exercise common sense on the matter of providing a copy of the will where appropriate, as it would be inappropriate to deny a copy to anyone with an interest in the estate. Discretion applies, and certainly someone without sufficient interest in the estate should not be able to obtain a copy of the will. It should be noted that this direction was intended for executors empowered to act for the estate, and does not extend to the deceased’s lawyer unless the executor instructs the lawyer to disclose the contents of a will.
In defining “sufficient interest”, it has been recommended that an executor in WA follow the NSW statutory guidelines, which lists those parties who are entitled to obtain a copy of the will:
- Anyone referenced in the will, including a beneficiary;
- A beneficiary of a previous will;
- The spouse, partner or child of the deceased;
- Anyone who would be entitled under intestacy legislation;
- A parent or legal guardian of a child named in the will or entitled under intestacy legislation;
- Anyone with a claim against the deceased estate;
- An appointed trustee or guardian of the deceased estate;
- The holder of an enduring power of attorney for the deceased;
- Anyone eligible to inherit under succession law.
How Can Everyone Else Obtain A Copy Of The Will?
If the requester is not a “sufficiently interested” party, then the person can still obtain a copy of the will after the will is probated. Upon the issuance of the grant, a probated will becomes public record, ensuring that anyone can inspect the will in entirety at the Courthouse. Pursuant to the Non-Contentious Probate Rules 1967, a copy can be obtained from the Supreme Court for a fee.
Our Contested Wills Team can help you establish your rights as a “sufficiently interested” party to obtain a copy of the will before probate, or help you file for a copy of the probated will. If you need advice on any matter, please contact our team of experienced solicitors or call to make an appointment on 1300 038 223.