Many people think that when someone dies there will be a formal “reading of the Will.” However, this is really a concept of the past. There is rarely a formal reading of the Will nowadays.
If you are named in the Will, in most cases, you should be contacted by the executor of the deceased person’s estate. If this does not happen, a request for a copy of the Will might have to be made if you believe you have been named in the Will.
We receive a number of enquiries from people who simply do not know where they stand when it comes to requesting a copy of the Will. In some cases, we are approached by people who have requested a copy of the Will and it has not been provided to them by the executor.
It is not only important to know whether you are entitled to a copy of a Will, but also if you are an executor, to know who you must provide a copy of the Will to, if requested.
Who is entitled to a copy of the Will?
In Queensland, section 33Z of the Succession Act 1981 (Qld) (the Act) states clearly who is entitled obtain a copy of the Will.
To be clear, it is not only an executor who has the obligation to produce a copy of the Will to certain people upon, request, it is in fact any person who has “possession or control” of the Will.
The people who are entitled to a copy of the Will include:
- Anyone named in the Will (whether or not they are named as a beneficiary)
- Anyone who is named or referred to in an earlier Will as a beneficiary (even if they are not named in the latest Will)
- A parent, guardian, spouse, de facto partner or child of the deceased
- Any person who would be entitled to a share of the estate if the deceased had died intestate (i.e. if they had died with no Will)
- Any person (including a creditor) who has or may have a claim against the estate
- Any attorney who held an Enduring Power of Attorney given by the deceased person
- Any person or entity who had formal management of the deceased’s affairs (e.g. Public Trustee)
- Any person entitled to bring a claim against the estate for provision (normally such a person would be covered by the categories above)
Anyone who has who has “possession or control” of the Will, or a copy of the Will, must allow inspection or provide a copy to those persons listed above.
Therefore, if the deceased’s accountant, lawyer or other family member are in possession of the Will, the obligation will fall on them to provide a copy to the list of persons above, if requested.
If I fall into a category above, what am I entitled to see?
Section 33Z provides the right to a copy and the ability to inspect not only the deceased’s current Will, but also any of the earlier Wills of the deceased.
If I am entitled to a copy of the Will, how do I request it?
Typically, the easiest way to obtain access to the Will is to approach the executor or administrator of the estate or the person who is in possession of the Will and request that a copy is released to you.
If the Will is not forthcoming, you may need to clearly state which of the above categories you fall into within section 33Z of the Succession Act 1981 (Qld).
What if I am having trouble receiving a copy of a Will?
If someone in possession or control of the Will is refusing to provide you with a copy of the Will, then you may wish to consider doing one of the following:
- If an application for probate has been made with the Supreme Court of Queensland, you may apply to the Court for a copy of the Will as an interested person. There will be a nominal fee payable to the Court to obtain a copy of the document.
- Engaging a solicitor to write to the executor or administrator of the estate requesting a copy of the Will.
I expected to be included in the Will – can I make a claim?
Upon receiving a copy of a Will, if you are not included as a beneficiary, you may be entitled to make a family provision application.
If you are an eligible applicant (spouse, child, or dependent of the deceased) and you have been left out of the Will or not adequately provided for, then you may be able to bring a family provision application against the estate. However, it is important to be aware that there are strict time limits that apply for making family provision applications.
Please do not hesitate to contact us if you need assistance in requesting a copy of a Will or believe you may be an eligible applicant to make a claim against an estate.