Succession ActWills & Estates

Finding and Inspecting a will – Frequently Asked Questions

Dealing with wills, and disputes around estates can be really confusing.  We have brought together some of the most commonly asked questions.  If your question is not answered below, please email us or call us (1800 430 855) to speak to a lawyer.

Are wills publicly available before a person dies?

 No, a will remains a private document while the testator is alive.  

Are wills publicly available after a person dies?

A will becomes a public document and can be inspected by anyone once there has been a grant of probate.  In the period between the person’s death and the grant of probate, only a small class of people can demand to inspect the will.  

Do wills need to be registered before a person dies?  Are they kept in a central location? 

No, wills do not need to be registered to be valid.  Wills are generally kept by lawyers who prepared them, or with the papers of the deceased.  Many people will advise the person who is to be their executor about where their will is.  The NSW Trustee & Guardian also provides a will safe which many people use to keep their will, although there is no requirement to do this.

There is no secret or quick way to find a will (or indeed, if a person even left a will).  The only option to search through the persons possessions, and to contact lawyers who may be been involved in drafting the will.  A lawyer may be able to assist in the search.

Am I entitled to inspect the will of my mother or father?  

You are legally entitled to see the will of a parent after their parent has died, even if there has been no grant of probate.   This should be done by contacting the executor or the executor’s lawyer (would would normally be listed with a publication for a grant of probate).  If the executor refuses and there has been a probate application then the will may be available from the Court.  if there has not been a grant of probate you should contact a lawyer may be able to assist. 

Am I entitled to inspect the will of my grandparents? 

You may be entitled to see the will of a grandparent prior to a grant of probate depending on the circumstances and which state of Australia the person’s estate is in. For example, in NSW and Victoria, a grandchild would be entitled to see a grandparent’s will if they would be entitled to a share had their grandparent died intestate; if they were referred to in an earlier will as a beneficiary, or if they are an eligible person for the purpose of a family provision claim.  This should be done by contacting the executor or the executor’s lawyer (would would normally be listed with a publication for a grant of probate).  If the executor refuses and there has been a probate application then the will may be available from the Court.  if there has not been a grant of probate you should contact a lawyer may be able to assist. 

Who is entitled to inspect a will after a person dies?

After a grant of probate a will becomes a public document.  Prior to the grant (but after death), the law creates an entitlement for some people with a special interest to see the will.  In NSW, under s.54 of the Succession Act 2006 (NSW), the people who have a right to inspect the will are:

  1.   any person named or referred to in the will, whether as a beneficiary or not,
  2.   any person named or referred to in an earlier will as a beneficiary of the deceased person,
  3.   the surviving spouse, de facto partner or issue of the deceased person,
  4.   a parent or guardian of the deceased person,
  5.   any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate,
  6.   any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate,
  7.    any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
  8.    any person committed with the management of the deceased person’s estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person,
  9.   any attorney under an enduring power of attorney made by the deceased person.

There is a very similar provision at s.50 of the Wills Act 1997 (Vic).

 

Related Articles

Case note – Stojanovski v Stojanovski

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