There is this long held belief by many that when someone dies there is to be a ‘reading of the Will’. However, in real terms, given the electronic world we live in, a ‘reading of the Will’ no longer occurs. Today, to see a copy of a Will, a person must take proactive steps to ask for it, and certain rules apply as to who may have a copy.
In Queensland, section 33Z of the Succession Act 1981 (Qld) (the Act) states who is entitled to see a copy of the deceased person’s Will. For someone to be able to see a copy of the Will they must be an ‘entitled’ person.
Who is an ‘entitled person’ who is able to see a copy of the Will?
An ‘entitled person’ is defined in the Succession Act 1981 (Qld) and covers six categories of people.
A person entitled to see and receive a copy of the Will is as follows:
- A person who is mentioned in the Will.
When a person is mentioned in the Will it does not have to be by their name it can be as simple as ‘my daughter’ or ‘my son’, they are entitled to receive a copy of the Will.
- A person mentioned in any earlier will as a beneficiary.
A person who was mentioned in an earlier Will is entitled to receive a copy of the Will. The same rule applies as above, they do not need to be mentioned in the Will by their name.
- A spouse, parent or child of the deceased.
A spouse includes a married spouse, a de facto partner and a civil partner of the deceased. A child includes a biological child, an adopted child or a legal step-child.
- A person who would be entitled to share in the estate had the deceased died without a Will.
When someone dies without a Will then they are considered to have passed ‘intestate’. The beneficiaries of a person’s estate if they pass intestate will depend on the deceased person’s circumstances. Accordingly, if a person passes without a Will, any person who would be considered a beneficiary of the estate is entitled to receive a copy of the Will.
- A parent or guardian of a minor mentioned in the Will or who would be entitled to a share of the estate if the testator had died intestate
As children do not have the capacity to act on their behalf, their parent or guardian is entitled to receive a copy of the Will.
- A creditor or other person who has a claim at law or in equity against the estate
A creditor such as a bank, lender or private financier is entitled to receive a copy of the Will.
Where a request is made to the executor or administrator of the estate for a copy of the Will, and previous Wills, of the deceased person, the executor and administrator is obliged to respond.
Furthermore, even if the request is made to a person who is not the executor or administrator (for example, a solicitor or person holding the Will), they must produce a copy of the Will if they are in ‘possession or control’ of the Will.
If a request for a Will has been directed to you and you are unsure of whether you must provide a copy of the Will to the person who has enquired with you, please do not hesitate to contact us.
Please feel free to contact me should you have any questions.
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