Who is Allowed Access to a Will?

11 Oct Who is Allowed Access to a Will?

The Succession Act 2006 (“the Act”) was assented to on 27 October 2006, proclaimed on 15 February 2008 and commenced on 1 March 2008. The object of the the Act is to restate with amendments the law relating to wills in New South Wales to implement, with modifications, the recommendations of the National Committee for Uniform Succession Laws regarding the law of wills. One of several changes introduced is a change in the persons entitled to inspect the will of a deceased person.

Section 54(2) of the Act gives specified persons a right of inspection or to receive copies of the will of a deceased. This right was not previously available under the Wills Probate Administration Actand does not exist under the general law.

Section 54 applies to wills whenever made if the testator dies on or after 1 March 2008 being the commencement date of the Act.

For the purposes of section 54, a will includes a revoked will, a document purporting to be a will, a part of a will and a copy of a will.

Section 54(2) provides that a person who has possession or control of a will of a deceased person must allow any one or more of the following persons to inspect or be given copies of the will (at their own expense):

1. any person named or referred to in the will, whether as a beneficiary or not;
2. any person named or referred to in an earlier will as a beneficiary of the deceased person;
3. the surviving spouse, de facto partner (whether of the same or opposite sex) or issue of the deceased person;
4. a parent or guardian of the deceased person;
5. any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate;
6. any parent or guardian of a minor referred to in a will or who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate;
7. any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person;
8. any person committed with the management of the deceased person’s estate under the Protected Estates Act 1983, immediately before the death of the deceased person,
9. any attorney under an enduring power of attorney made by the deceased person;
10. any person belonging to a class of persons prescribed by the regulations.

Clause 54(3) allows the court to make an order requiring the person who has possession or control of the will of a deceased person to produce it to court. If you need advice in relation to granting access to a will of which you have control or obtaining access to a will please contact Alexandra Tzavellas Email: atzavellas@harrisco.com.au