Obtaining Access to the Deceased’s Will

Date: Nov 17, 2010
Document Type: Article
Getting to see the will of a deceased can sometimes be a problem.
Section 54 of The Succession Act 2006 is designed to overcome that problem.
The Succession Act 2006 introduced a provision that certain classes of people are entitled to access wills even before Probate is granted and without a court order.
The statutory right makes it administratively easier to inspect or obtain copies of the will. The right applies to previous wills even if they have been revoked.
The classes of people who can apply to inspect or obtain copies of 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;
3             the surviving spouse, de facto spouse (whether of the same or the opposite sex) or issue of the deceased;
4             a parent or guardian of the deceased; 
5             any person who would be entitled to a share of the estate of the deceased if the deceased had died intestate, (i.e. without making a will);
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 deceased if the deceased 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;
8             any person committed with the management of the deceased’s estate under the New South Wales Trustee and Guardianship Act 2009 immediately before the death of the deceased;
9             any attorney under an Enduring Power of Attorney made by the deceased; and
10         any person belonging to class of persons prescribed by the regulations.
A person, such as a solicitor or a trustee, who has possession or control of the will of a deceased must allow any of the above to inspect or obtain copies of the will, which includes the final unrevoked will, any previous wills or any document purporting to be a will.
The right to access a will applies before Probate is granted. 
A person may apply for access if there is a potential dispute about who should apply for Probate or Letters of Administration.
A person eligible to make a family provision claim can promptly now find out whether the deceased has made adequate provision for them so that they can consider whether they should make a claim. A family provision claim must be made within 12 months of the date of death unless the Court gives leave for proceedings to be commenced after 12 months.
A person seeking to challenge the will or the appointment of the executors may want access to the will to consider if there are any grounds to challenge the will or the appointment of executors before Probate is granted.
A person seeking to challenge the will on grounds of testamentary capacity or undue influence may wish to access previous wills to see if the last unrevoked will is consistent with previous wills. The person can now do so without starting proceedings and issuing a subpoena for production of previous wills.
A person entitled on intestacy may want to check whether the will has a valid residuary provision.
A creditor may wish to know whether the deceased had particular assets and identify to whom assets are to be distributed.
The solicitor providing access can charge a fee and disbursements such as photocopying, but the costs of obtaining the will should not be significant.
A person who has possession of control of the deceased’s will is obliged to allow the above class of person to inspect or (at the person’s expense) be given copies of the will. A person who has possession or control of the will of a deceased person must produce it in a Court if the Court requires the person to do so.
If you have a question about a will or about your rights (or obligations) or about the way in which an estate is being administered, phone us on 8268 4000.
Can I bequeath my heart?
Date: Dec 13, 2011
Capacity to make a will
Date: Jun 20, 2014
Caveats in Probate Proceedings
Date: Jul 24, 2014
Choosing your executor
Date: May 09, 2012
Coercion in making a will
Date: Sep 07, 2011
Creating a Living Will
Date: Jun 06, 2011
Family Provision Overview
Date: Jul 16, 2012
Fixing errors in Wills
Date: Mar 28, 2012
Gambling away inheritance?
Date: Jun 18, 2012
Informal and Stopgap Wills
Date: Nov 26, 2013
Life changes and wills
Date: Mar 12, 2013
Lost Wills
Date: Mar 21, 2014
Moral duty and family provision
Date: Oct 01, 2012
Obtaining Probate
Date: Feb 03, 2011
Organise Organ Donation
Date: Jun 04, 2010
Proper funeral planning
Date: Jan 31, 2013
Security for Costs
Date: Aug 08, 2010
Testamentary Capacity
Date: Apr 01, 2012
The Basics of Estate Planning
Date: Apr 01, 2011
The Curse of the Homemade Will
Date: Sep 18, 2014
The Problem With Internet Wills
Date: Jun 18, 2014
What are Powers of Attorney?
Date: Jun 16, 2014
What can a will be written on?
Date: Sep 07, 2011
What is a “Benjamin Order”?
Date: Oct 04, 2013
When should a will be changed?
Date: Feb 03, 2012
Who will look after your pets?
Date: Nov 15, 2011
Witnessing a will
Date: Sep 07, 2011
Back to Publication List