After a person dies, the beneficiaries of their estate (and other relevant persons and organisations, such as banks) are usually provided with a copy of the deceased’s last Will, if they made one.
Who can receive a copy of a Will legally?
The law varies from state to state. In Queensland, for example, section 33Z of the Succession Act 1981 (Qld) allows certain ‘eligible’ persons to be provided with a copy of a Will.
Under s33Z, any person who is eligible may request a copy of the deceased’s Will from:
- the executor/administrator of the estate; or
- the solicitor engaged to act on behalf of the estate; or
- the Public Trustee of Queensland.
If the person to whom the request is made holds the original Will in their possession, then they must enable the person requesting the opportunity to review the Will and provide that person with a certified copy of the Will, if asked.
It is important to understand that the request covers a broad array of testamentary documents including the last Will of the deceased, as well as all prior testamentary documents including Wills, codicils and draft testamentary documents, for example.
Who can make a request for a copy of a Will under section 33Z in Queensland?
The following categories of people are eligible to request and be provided with a copy of the Will in Queensland:
- a person mentioned in the Will, whether as beneficiary or not and whether named or not; or
- a person mentioned in any earlier Will of the deceased as a beneficiary and whether named or not; or
- a spouse, parent or child of the deceased or
- a person who would be entitled to a share of the deceased’s estate if the deceased had died intestate; or
- a parent or guardian of a minor mentioned in the Will or who would be entitled to a share of the estate if the deceased had died intestate; or
- a creditor or other person who has a claim at law or in equity against the estate; or
- anyone eligible to make a Family Provision Application.
Does it matter whether the deceased died outside Queensland?
Under section 76(8) of the Succession Act, section 33Z applies to a Will regardless of when the testator (person who made the Will) died. The holder of the Will must comply with the request.
What if the person holding the Will refuses to provide a copy?
Sometimes, even if a person is eligible to receive a copy of a Will, the holder refuses to honour the request. As there are time limits that apply to challenging a Will, it is important that a solicitor be contacted at the earliest opportunity if delays or issues arise in obtaining a copy of a deceased person’s Will. Often a resolution can be achieved by a solicitor making a formal request for the Will, along with an explanation of why it must be provided.
There are some rare occasions where an application to the Court is necessary to obtain a copy of the Will. In such circumstances, there may be an adverse cost order against the holder of the documents in circumstances where the request was legitimately made and the Will should have been provided.
What about obtaining a Will held in other states and territories?
Each state and territory has its own laws governing who can obtain a copy of a Will and whether they are allowed to do so before or after a grant of probate is issued. For example, in Western Australia, there is no statutory right for anyone other than the executor to see or obtain a copy of a Will before a grant of probate is issued. Only when a Will is submitted to the Court to obtain a grant of probate is it made available to the public. This might make things challenging for a person considering whether to challenge a Will because they are unable to obtain a copy of it. That said, there is some case law in Western Australia which provides that an executor should provide a copy of a Will to someone who has a sufficient interest in it and further, that the Will should be provided without delay.
If you would like to discuss obtaining a copy of a Will, please contact our Estates and Succession team.