How do I see a person's will?

Wills and Estates: 23 August 2019

Author: Jack Conway - Our People

A Will is a very personal, very private document. In most cases, the decision of a Will-maker to reveal, or not reveal, the details of their will to family members or friends is entirely their own. In this article, Jack Conway looks at the laws and processes.

A Will is a very personal, very private document. In most cases, the decision of a Will-maker to reveal, or not reveal, the details of their will to family members or friends is entirely their own.

Many people are surprised to learn that once they die, their Will becomes a public record. Because a Will deals with the legal transfer of ownership of property, it is important that the beneficiaries, government agencies, and the general public can be assured that a Will is validly made, and what the contents of the Will are.

When a person has passed away

The movie trope of the deceased's family gathering at the lawyer's office for a 'reading of the Will' is largely a myth. In practice, it is up to the executor to inform the family of the contents of the Will.

Upon a person's death, the executor of the Will 'steps into the shoes' of the deceased, and acquires all their legal rights. Accordingly, the executor is the only person entitled to possession of the original will.

An executor has a duty at law to provide a copy of the Will to the beneficiaries and inform them of their entitlements.[1] Unfortunately, this doesn't offer much help to those who aren't sure if they are a beneficiary, or who don't trust the appointed executor and suspect that he or she may be hiding the truth.

Many states and territories have legislation requiring a person who possesses and controls a Will (including an executor, solicitor, or other family member) to provide a copy of the Will to certain persons who request it. In Victoria,[2] the following persons are entitled to a copy:

• any person named or referred to in the Will, whether as beneficiary or not;
• any person named or referred to in any earlier Will as a beneficiary;
• any spouse or domestic partner of the Will-maker;
• any parent, guardian or children of the Will-maker;
• any person who would be entitled to a share of the estate if the Will-maker had died intestate;
• any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate if the Will-maker had died intestate;
• any creditor or other person who has a claim against the estate of the deceased person and who produces evidence of that claim.

A request can also be made in relation to a revoked Will, or purported Will (for example, a Will that may not be valid).

Once probate is granted

Once the executor of the Will has been granted probate (or simply applied for probate) the Supreme Court file is available to inspect by any member of the public. From the file, you can inspect the Will and the court documents, which include an inventory of assets and liabilities of the deceased's estate. In Victoria, the file can initially be inspected at the Probate Office in the Supreme Court of Victoria, until it is moved off-site for storage at the Public Records Office of Victoria.

Not all deceased estates require a grant of probate. If the deceased's estate can be administered without a grant, then the executor may choose not to apply for one, in which case there will be no file available.

During the Will-maker's life<

As mentioned above, normally a person's Will remains private until their death. However, if you lose mental capacity, an exception applies to financial attorneys (under an enduring power of attorney) or an administrator (appointed by VCAT).

A financial attorney may apply to VCAT to inspect the Will if it is relevant to the performance of their duties.[3] A common example of this is if your attorney needs to sell your home in order to fund your accommodation in aged care, but needs to consider whether the gifts made by the Will are affected.

On the other hand, an administrator currently has an automatic right to open and inspect a Will without any order being necessary.[4] However, amendments to the law will come into effect on 1 March 2020, which will require an application to VCAT similar to the laws for financial attorneys.[5]

In most other cases, an attorney or administrator is not authorised to access or inspect the Will. An attorney or an administrator cannot amend, revoke, or make a new Will for a person who lacks mental capacity.

What to do if you aren't being given a copy of the Will

If an application for probate (or letters of administration) has been filed, contact the Supreme Court to arrange to inspect the Supreme Court file.

If the executor fails to obtain probate of a Will, an application can be made to the Supreme Court to have the Will brought into Court.

If you suspect that an executor is not being forthright, or is failing in its duty to administer the estate, you should seek legal advice immediately.

Aitken Partners is experienced in acting for executors and beneficiaries to uphold the deceased's wishes and ensure a fair and just outcome. If you need assistance, contact our Wills & Estates team today.

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[1] Hawkesley v May (1956) 1 QB 304; Hawkins v Clayton (1988) 164 CLR 539.

[2] Wills Act 1997 (Vic), s 50. Similar provisions are found in the Succession Act 2006 (NSW), s 54; Succession Act 1981 (Qld), s 33Z; Wills Act 2008 (Tas), s 63; and Wills Act 2000 (NT), s 54.

[3] Powers of Attorney Act 2014 (Vic), s 134C.

[4] Guardianship & Administration Act 1986 (Vic), s 58G.

[5] Guardianship & Administration Act 2019 (Vic), ss 66-68.