What if the Executor Won't Provide a Copy of the Will?
When a person dies testate (with a will), the person they have named as executor is responsible for administering their estate in the beneficiaries best interests. If the executor won’t provide a copy of the will to beneficiaries or family members, or if they are acting in ways that are detrimental to the beneficiaries, they can be held accountable. This article sets out what beneficiaries and other interested parties can do if an executor won’t provide a copy of the will.
The Duties Of Executors
An executor must deal with the deceased’s assets and liabilities. This may include paying outstanding debts, selling property and distributing funds between parties. An executor is also required to organise the deceased’s funeral and burial or cremation.
An executor has the following duties:
- To locate the original copy of the deceased’s final will;
- To finalise the estate within a reasonable time (generally 12 months from the date of death);
- To communicate with the beneficiaries clearly and on time;
- To keep accurate records of the transactions carried out in relation to the estate;
- To administer the estate in the best interests of the deceased’s beneficiaries;
- To provide beneficiaries with a final statement confirming that the estate has been finalised.
What If The Executor Won’t Provide A Copy Of The Will?
Legislative provisions in all states and territories provide that certain classes of person are entitled to inspect a deceased’s will or to obtain a copy of the will. In New South Wales, this is set out in section 54 of the Succession Act 2006. In Queensland, it is set out in section 33Z of the Succession Act 1981. In Victoria, it is contained in section 50 of the Wills Act 1997.
The general categories of person who are entitled to inspect a will are beneficiaries, parents, children, partners, those names as beneficiaries in earlier wills and anyone entitled to inherit under the laws of intestacy. If you belong to a class of person who is entitled to inspect the will and the executor won’t provide a copy of the will, you should seek the advice of a lawyer immediately.
Passing Over An Executor Who Won’t Provide A Copy Of The Will
A beneficiary may apply to the Supreme Court to have an executor passed over if they are unsuitable to act. This means that they are not appointed in the role of executor and someone else is appointed instead.
If the will names more than one executor, passing over an executor may be simple as the court may simply appoint one of the others instead. If only one person is named, passing them over will mean the court appoints someone else instead.
The court will require evidence of why the named person is not suitable to act as executor. Courts are reluctant to overrule the wishes of the testator as to who administers their estate and will not lightly pass over an executor. However, if serious concerns exist about a person’s ability or suitability to act in the role and these concerns are supported by evidence, the court will pass them over and appoint someone else instead.
Removing An Executor Who Won’t Provide A Copy Of The Will
If an executor has already received a Grant of Probate when concerns about their behaviour arise, a party can apply to the Supreme Court to remove them. This application may be made by a beneficiary and must be accompanied by evidence of why they are not suitable to take on the duties of an executor. If an executor won’t allow those who are entitled to inspect the will to do so, this may provide all or part of the reason for this application.
If the court is satisfied that an executor is not capable, or has been guilty of significant misconduct, it will remove the executor and appoint someone else as executor.
If you require legal advice or representation about an executor who won’t provide a copy of the will or in any other legal matter, please contact Armstrong Legal.