Who Is Entitled to See a Copy of a Will?
17 June, 2021Estate AdminstrationEstate LitigationEstate PlanningEstate Planning, Estate Administration and Disputes, Trusts and SuperannuationWills & Estates
When a person passes away, their loved ones will often want to see a copy of their Will. Receiving a copy of the Will means family and other potential beneficiaries can discover how the estate has been distributed, which can help them determine whether or not they feel the need to challenge the Will or lodge a family provision claim.
In this article, we’ll cover who is entitled to a copy of a Will, the time limits on requesting a copy of a Will, and how to get access to a copy if you’re entitled to one.
Who can request a copy of a Will after a person dies?
Many people think that when a person dies there will be a ‘reading of the Will’. In fact, there is no requirement for a Will to be read and this is rarely done. Usually, when an executor obtains the Will, they will send a copy to the beneficiaries named in the Will.
What can you do if you do not receive a copy of the Will?
If an executor does not send a copy of the Will to a person who thinks they are entitled to a copy, that person can ask to inspect or to be given a copy of the Will.
Legislation in Queensland provides that a person who “has possession or control” of the Will, or a copy, must provide a copy on request to an “entitled person”.
Under section 33Z of the Succession Act 1981 (Qld), an “entitled person” means:
- a person named or referred to in the Will or an earlier Will;
- a spouse (married, de facto or civil partner), parent or child of the testator;
- a person who would be entitled to a share of the estate of the testator had the testator died intestate (that is, without a Will);
- a parent or guardian of a minor under the age of 18, if that minor is mentioned in the Will or who would be entitled to a share of the estate had the testator died intestate;
- a creditor or other person who has a claim, including an equitable claim, against the estate; or
- a person entitled to apply for a family provision order under section 41 of the Succession Act 1981 (Qld).
If the deceased person’s Will has been lost, stolen, or destroyed, then a person with possession or control of a copy of that Will must allow an entitled person to inspect, or be provided with a certified copy, of the copy Will.
If you do not know who holds the deceased’s Will, an online search of the probate notices advertised in the Queensland Law Reporter or probate applications filed with the Supreme Court will show the name and address of the person or firm making the application, who can then be contacted for a copy of the Will. Once probate is granted, the Will becomes a public document and is accessible by any person making a request to the Supreme Court for a copy of the Grant of Probate.
If the person holding the Will, or copy Will, does not provide a copy when requested by an eligible person, a Court application can be brought compelling that person to provide a copy. If the person holding the Will has unreasonably refused to provide a copy, the cost of the application proceedings may, at the discretion of the court, be awarded against that person.
Time Limits on Requesting a Copy of a Will
While there is no time limit on when an entitled person can request a copy of a Will, it is important to remember there are legislated time limits within which a person can file a family provision claim if the Will does not provide adequately for them.
In Queensland, notice of a person’s intention to file a family provision claim must be made within six months of the date of death. Therefore, it is important that a copy of the Will should be requested if you are not provided with a copy within a reasonable time.
Who is entitled to a copy of my Will while I am alive?
It’s your choice whether you provide a copy of your Will to anyone during your life – no person (other than your attorney in certain circumstances) is ‘entitled’ to see or be provided with a copy of your Will.
Is my attorney entitled to a copy of my Will while I am alive?
Under section 81(1) of the Powers of Attorney Act 1998 (Qld), an “attorney has a right to all the information that the principal would have been entitled to if the principal had capacity and that is necessary to make, for the principal, informed decisions about anything the attorney is authorised to do”.
Generally, your attorney is not entitled to a copy of your Will. However, if you lose capacity and your attorney intends to dispose of your assets or restructure your affairs, it may be necessary for your attorney to obtain a copy of your Will to ascertain whether your attorney is dealing with assets gifted under the Will.
If your attorney requires a copy of your Will, your attorney should contact the law firm holding the Will, who will ask questions in relation to your attorney’s appointment, your capacity, and the need for your attorney to access a copy of your Will.
Your attorney cannot make, revoke, or amend your Will, and your ‘original’ Will is not released to your attorney.
Accessing a Copy of a Will
If you need to request a copy of a deceased person’s Will, it’s important to get access as quickly as possible as time limits exist to challenge or contest the Will.
As long as you’re an entitled person, our experienced team can help you get access to a copy of a Will. Get in touch with an expert Wills and Estates lawyer on (07) 5597 3366, via firstname.lastname@example.org, or through our contact form.
The content of this publication is for information only. The content does not constitute legal advice and should not be relied upon as such. You should obtain advice that is specific to your circumstances before taking any action.