When a loved one dies, you may have a right to see a copy of the will. Exercising this right can be difficult, however, particularly if you have little information about whether one exists, where it might be, who is the executor of the estate or what solicitor might have drafted it. Even once you have found the will, however, you may have to establish that you are a person entitled to know what it contains. Challenging or contesting a will is impossible, of course, unless you have the opportunity to know what it says, and you must do so within 12 months of the decedent’s date of death. If you are having difficulty obtaining a copy of a will, and time is running short, you may benefit from the help of an experienced estate attorney at Owen Hodge Lawyers.

Locating a Will

Of course, the first step is to ask other family members or the trusted family solicitor, in the rare case where one exists. Failing that, however, you may find yourself scouring death notices and legal notices in newspapers local to the area in which the decedent lived. The Probate Registry of the Supreme Court also keeps an index that is searchable by year and the decedent’s surname. Because probate may take months, you may need to check and re-check this index regularly.  When probate has been granted, the will becomes a public document, and may be reviewed by anyone. Finding it at this stage may be a pyrrhic victory if all the assets have been distributed, however.

Asking to See It

Once you have located the will, the next step is to contact the executor or the executor’s solicitor with your request. There is no right to see the will of a living person, and before probate is granted, only a finite set of people are entitled to see the will of someone who is deceased. You may have to demonstrate that you fall within this category of individuals.
In New South Wales under the Succession Act (2006), those entitled to review and to have 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.
  • A parent or guardian of any child referred to in the will or who would be entitled to a share of the deceased’s estate if he or she had died without will).
  • Any person who would be entitled to a share of the estate if the deceased had died intestate.
  • 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.
  • Any person or entity that had formal management of the deceased’s affairs (e.g. Public Trust).
  • Any person entitled to bring a claim against the estate for provision.

When to Involve an Attorney

In the best of worlds, getting a copy of a loved one’s will should be a relatively straightforward process, but where relationships have become acrimonious, you may need the assistance of an attorney to establish that you have this right.
Some of the categories listed above are straightforward. Someone either holds an enduring power of attorney or they do not. Others may be problematic. An unacknowledged child may have difficulty, for example, as may a de facto spouse. Establishing that you had been named as a beneficiary in a previous will requires a copy of the previous will, which may no longer exist if copies were destroyed.
The last category, those who have a right to make a provision claim against the estate, is the source of much litigation. It is something of a catch-all provision that may include de facto spouses, same sex-partners, or individuals who lived with the decedent in a close personal relationship. Courts look carefully at all the factors that define a relationship, including length, sexual nature, joint responsibility for children, financial interdependence, and social representations to decide whether someone asking to see a will is entitled to do so under this provision.
In some cases, it may be necessary to file a caveat on a grant or re-seal of probate. The caveat notifies other parties prior to the grant of probate that you have an interest to be resolved.
If you are having difficulty obtaining a copy of a will or are not certain whether one exists or where it might be, contact the estate attorneys at Owen Hodge Lawyers. It is especially important to do this promptly if you believe that you may have a reason to bring a challenge because the process of finding and obtaining a copy may consume precious time.  Call us today at 1800 770 780, for a consultation so that we can help you plan your steps forward

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