GENERAL ENQUIRIES13 535 57
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Insights

It is often the case that beneficiaries and other interested persons wish to see the will of a deceased person after becoming aware of their death and prior to a grant of probate having been obtained.

A beneficiary named in a will does not automatically get a copy of the will of a deceased person and there is no obligation on the executor to hold a “reading of the will” following the death of the deceased person.

If for some reason however a beneficiary would like to see the will itself, he or she can apply to view the will or receive a copy.

Under Section 54 of the Succession Act (NSW) 2006, a person who has possession or control of the will of a deceased person whose estate is to be administered in New South Wales must allow a person to inspect or have a copy of the will (at that persons expense) if they are:

  1. Any person named 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 (whether of the same or opposite sex), or a child 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 a 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 persons estate under the NSW Trustee & 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; and
  10. Any person belonging to a class of persons prescribed by the NSW Succession Regulations.

No person is entitled to see the will of a person who is still alive even if they are an eligible person to view or receive a copy of the will on the persons death, or they hold the Power of Attorney of the person concerned.

A person entitled to inspect or receive a copy of the will of the deceased person, and who wishes to see it before probate is obtained, should make initial contact with the executor or the solicitors acting for the executor and request a copy of the will.

In the rare case where the executor may be unknown to the interested person he or she can firstly check with the Supreme Court to see if there has been a notice published on line by an executor of an intention to apply for probate and otherwise by searching the local papers circulating in the area where the deceased resided for funeral or other notices.

In the event that the person responsible for the will and obliged to allow access or make a copy then refuses to do so, or there is a dispute over whether the person requesting access or a copy is entitled to such access, the remedy is to commence proceedings in the Supreme Court of NSW. The Court can be asked to make an order under s 54(3) of the Succession Act requiring that the person holding the will produce it in Court.

Accessing a will after probate has been granted does not carry the same degree of difficulty if there is an objection to a copy being made available before probate is obtained.

The Probate and Administration Act (NSW) 1898 provides that the will of a deceased person once admitted to probate is a public record document and that any person is entitled to apply for a copy of it from the Supreme Court of NSW provided that they have paid the relevant fee.

In many cases the Inventory of Property accompanying the Grant of Probate can be of singular interest to beneficiaries as it documents the assets comprising, and the estimated gross value of, the deceased estate subject to the will.

For records retained by the Supreme Court from 1977 to the present, the Inventory of Property (Inventory) is only available to executors, administrators, residuary beneficiaries and applicants who have commenced proceedings in contested family provision claims under the Succession Act (provision claim).

The Inventory is not available to other applicants, including creditors or potential claimants.  A person or institution holding assets of the estate however is entitled to verify that the relevant asset was disclosed in the Inventory before allowing the transfer of that asset.

After a grant of probate has been made, all beneficiaries are entitled to an exemplification of the grant which includes the will.  An exemplification is a sealed, Court authorised copy of the grant.

An exemplification of the Grant includes the will of the deceased person but will only include the Inventory if the applicant is a residuary beneficiary.

Application for an exemplification is made to the Supreme Court along with payment of the applicable fee.  Generally, it takes the Court 14 days to process such a request.

A prospective claimant wishing to inspect the Inventory to ascertain the assets and estimated gross value of the deceased estate prior to launching a provision claim has no means of compelling the production of a copy of the grant of probate containing the Inventory from the executor and no way of accessing it through the Court unless a residuary beneficiary.

The only certain for any other class of beneficiary or other person to obtain a copy of the Inventory is to commence a provision claim.  However, there are likely costs consequences if such proceedings are commenced and later discontinued once the Inventory has been released and assessed.

The affidavit of executor is not a public record document and access is not usually granted by the Court.

A beneficiary may however apply to the Court but would need to set out sound and compelling reasons why access should be granted.

Access to the affidavit of executor is allowed in accordance with the requirements outlined in Practice Note SC General 2 which applies as well to the probate files held by the Court.

 

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