A Will is not a document of public record until probate of the Will has been granted. However, once probate has been granted it makes Challenging the Will significantly more complicated. This means if you are wanting to challenge, it is imperative to see the Will before probate occurs.
Up until recently, seeing the Will before probate occurred was especially difficult. This being that even if you were named as a beneficiary in the Will, it did not entitle you to see a copy of it. Instead, under the strict common law in the past years, only the Executors or personal representatives of the Estates were entitled to see it. However, thankfully the law changed and now most Australian states have enacted legislation to allow interested people to obtain a copy of a deceased person’s Will or inspect it…phew.
Before we enter into the legalities of this whole process, let me first bust a myth! Unfortunately, in Australia unlike America there is no legal requirement or customary practice to hold a ‘reading of the Will’. That’s right…contrary to the image most American TV shows depict, no family members are required to sit around a large rectangular wooden desk of a solicitor’s office, as the solicitor in an oversized mahogany leather chair reads the Will under the ambiance of a dimly lit fireplace. It just doesn’t happen!
…What we do have though are categories of people who are legally entitled to a copy of the Will.
Who has the right?
Section 50 of the Wills Act 1997 (Vic) lists those who are legally entitled to inspect a Will of the deceased before it becomes a document of public record.
Those entitled are:
- any person named or referred to in the Will;
- any person named or referred to in an earlier Will as a beneficiary
- spouse at the date of death;
- domestic partner of the deceased;
- parent, guardian or children of the deceased;
- any person who would be entitled to a share if the deceased died intestate (without a Will)
- any parent of a minor referred to in the Will or who would be entitled to a share if the deceased died intestate;
- any creditor or person who has a claim against the estate and produced evidence of that claim.
So long as you fall into one of these categories, not only can you ask for a copy of the most recent Will of the deceased, but you can also ask for copies of any previous Wills and/or Codicils.
What happens if ‘they’re’ not letting you see it
Anyone holding a Will for a deceased person, must, upon written request from an interested person listed above, make a copy of the Will available.
Normally, the person holding the original Will, will be the Executor of the deceased. Executors sometimes withhold a copy of the Will purely out of spite, or simply refuse to cooperate – using their position as Executor to exercise some form of power over the beneficiaries.
If you find yourself in this situation, and fall into one of the aforementioned categories, fear not as the executors are legally required to hand the Will over!
What to do next? Make contact with Hentys Lawyers today, and we can help you bring about an appropriate application, to get a copy of the Will into your hands!
We can also help you to Contest the Will if need be.