When a family member or close friend passes away, it is never an easy time. Emotions are heavy and with many of us dealing with our grief in different ways, maintaining amicable relationships with other family members and friends, particularly in circumstances where the relationships were already strained to begin with can seem literally impossible. Add a Will of a loved one into this, who’s contents may provide an even greater element of tension, and the dysfunction of these relationships can become front and centre.
Having serviced the community for a number of years, the team at Family Focus Legal are quite often approached by family members or friends of the deceased who have been denied access to the will, with their first question always, ‘who is in fact legally able to see or get a copy of the will?’.
To provide some guidance around this question, we outline below, who is legally able to see or view a copy of a deceased’s will. We also provide some basic information as to what the process is for those who are wanting to view this critical document and its contents.
What does the legislation say?
The best place to start in order to determine who can legally view a copy of a deceased will, is to look at the legislation.
In New South Wales, Section 54 of the Succession Act 2006 provides clear and concise guidelines as to who is entitled to see a copy of a Will, including any revoked Wills of a deceased person. As is indicated by the legislation, a will is certainly not a public document available to anyone and everyone to view, until an application for a Grant of Probate has been processed by the Supreme Court.
Prior to a Grant of Probate being issued by the Court, a deceased’s will can be viewed by a number of people, which includes;
- Any individual who is named or referred to in the Will;
- An individual who was named in any earlier or revoked versions of the deceased’s will;
- A spouse or domestic partner of the deceased at the time of the death;
- A child of the deceased, or a parent or guardian of the deceased;
- Any person that would have been entitled to a share of the Estate if the deceased had died without a Will;
- A parent or guardian of any minor child referred to in the Will or the parent or guardian of any minor child who would be entitled to a share of the estate of the Will maker if the Will maker had died without a Will;
- Creditors or other individual or company who has a claim at law or in equity against the estate or the Will maker and who produces evidence of that claim;
- Any person who had formal management of the deceased’s estate under the NSW Trustee and Guardian Act 2009 immediately before death of the deceased person;
- An Attorney under an enduring power of attorney made by the deceased person; or
- Any person belonging to the class of people prescribed by the regulations under this legislation.
If you are not a person that falls into the above list, then viewing the will may not be possible.
I have been denied access to the will, what can I do now?
Wills can certainly bring out the worst in dysfunctional families, or complex family situations such as blended families, and due to these previously strained relationships, it is not uncommon for there to be family members exercising some level of control over who can see the will of the deceased.
Putting personal grievances aside, if you are a person identified in the list above, who is legally able to see the will, then you can formerly request to do so.
How do I request access to a will? Is there a process?
Like everything is life, there is a process involved should you wish to view a will and are being denied access.
Initially the process for doing this, is to simply ask. We would recommend that this request be in writing via letter or email for records purposes. If that request is denied, then you should consider seeking the assistance of a Solicitor who can make a formal request on your behalf.
It is extremely unusual for a request to see a will be a person who has a legal right to see it under the legislation, be denied, as the executor of the estate does have an obligation to act in the best interests of the estate, so to deny access would contravene this obligation.
Should this not be successful, an individual can apply to the court, for a court order to view the will of the deceased. This however only occurs in rare circumstances, and generally in cases where there are other underlying issues.
Viewing a will of a person who is not deceased
Whilst this may seem like an odd request, it is something that is asked of us at Family Focus Legal from time to time. Generally, nobody but the will maker, also called the testator, has access to the will. A will is a private document, and as such there is no obligation for a person to show their will to another.
There are, however, times where the testator may wish to include their family members or Executor in the process, and provide them with a copy, so that when the person passes away, their wishes can be immediately put into action.
How can Family Focus Legal Assist?
Discussions about death can certainly be quite confronting for all involved, however, it is also a discussion that we encourage our clients at Family Focus Legal to have with their families and loved ones.
We find that by family and friends having an awareness of where the will is located and some basic details about wishes, then the whole process of administering an estate can be a lot less stressful on everyone.
Our dedicated, passionate, and reliable team at Family Focus Legal can assist with all your wills and estates enquiries. Our caring and client-centric approach, combined with our extensive wills and estate knowledge, ensures that our clients feel comfortable and at ease when dealing with us.
If you or someone you know needs assistance with accessing a Will or dealing with an Estate, you can contact our friendly team at info@familyfocuslegal.com.au or 024655 4224.
