​​Can I get a copy of someone’s Will?​

Generally speaking, the contents of a Will are private and are not able to be disclosed without the testator’s authority until after they have died.  In Australia, a Will becomes a public record when it has been admitted to probate – which may not be required in every case.  Once the Will has been admitted to probate, anyone can then request a copy from the Court.  However, there are some circumstances where you might be able to get a copy of Will without waiting for it to be admitted to probate.  

What if the testator is alive? 

There are some circumstances where you might be able to obtain a copy of the Will before the testator has died.  For example: 

  1. You can request a copy directly from the testator and the testator can decide to provide a copy to you – though, the testator can say no! 
  2. If you are the testator’s attorney under a General and/or Enduring Power of Attorney, there may be a specific power in the document that allows you to obtain a copy of the Will after the testator has lost legal capacity.  This power needs to be specifically stated in the Power of Attorney document and only the attorney can view the Will (and they have no right to change or revoke it).  Usually, this power is given so that the attorney can confirm that the sale of certain assets to benefit the testator will not defeat the intended gifting under the Will.  In some states, an attorney has the right to obtain a copy of the Will in certain circumstances – but this differs from state to state and you should get specific advice for your situation. 
  3. In some circumstances, the Court may make an order ordering the release of a copy of the Will if it is considered necessary to resolve a dispute. 

Even though you might be able to look at a Will before the testator dies, it is important to remember that if the testator has testamentary capacity, they are able to revoke and replace their Will – so what you read is subject to change! 

If you are wondering about your rights as to the release of a Will and want some advice, call us on 1300 654 590 or email us.  

What if the testator has died? 

Not every Will is admitted to probate, or you may want to see a copy of the Will before it is admitted to probate.  You will be entitled to see a copy of the Will in the following circumstances: 

  1. If you are the Executor of the Will, you are entitled to see the Will so that you can administer the Estate.  The Executor is entitled to collect the original Will.  If the Will is held by a law firm, you will usually be required to provide evidence that the testator has died and provide documents to verify your identity before the Will is released to you. 
  2. If you are named in the Will or are a beneficiary under the Will.  In some states (for example, New South Wales), you just need to be named in the Will to see a copy of it.  In other states, you are only entitled to see a copy of the Will if you are named as a beneficiary.  In some states (such as South Australia), a beneficiary is not entitled to see a copy of the Will until after the Executor has obtained a Grant of Probate. 
  3. In some states, there are certain people that are entitled to receive a copy of the Will.  For example, in New South Wales, under section 54 of the Succession Act 2006 (NSW) there is a list of people who are entitled to see a copy of the Will.  However, this law is not uniform across Australia so it depends on the circumstances. 
  4. In some circumstances, the Court may make an order ordering the release of a copy of the Will if it is considered necessary to resolve a dispute. 

If you are dealing with an issue relating to access to a Will, we can help and clarify the situation.  Call us on 1300 654 590 or email us. 

Unfortunately, the rules are not uniform across Australia or straightforward.  Your entitlement to see someone else’s Will really depends on the circumstances and where the Will is located.  If you would like more information about your circumstances, call us on 1300 654 590 or email us. 

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