I am regularly asked about whether an official “reading of the Will” needs to take place after someone has died. You have probably seen American movies where the family gathers after the death of a relative in an oak-panelled office while a white-haired solicitor reads out the last wishes of the deceased person.
In Australia, there’s no legal requirement or customary practice to hold a “reading of the Will”. In fact, until very recently, there was not even an automatic right for family members to see a copy of the Will of the deceased person. Previously, the executor needed to consent to provide a copy of a Will to a family member or potential beneficiary. If the executor refused their consent, the person wanting a copy of the Will would have to go to the expense and trouble of seeking a Court order to obtain a copy of the Will.
On 17 November 2014, a change to the law now gives a statutory right for certain people to inspect a copy of the Will of a deceased person. The amendment to the Administration and Probate Act 1929 (ACT) was modelled a similar provision in the New South Wales equivalent.
The categories of “interested person” who can request a copy of the Will include:
• an executor or beneficiary named in the Will or an earlier Will;
• a spouse (whether married or de facto) or child of the deceased person;
• a parent or guardian of the deceased person;
• a parent or guardian of a minor who is a beneficiary under the will;
• a parent or guardian of a minor who would be entitled to a share of the estate if the deceased person had died intestate;
• a person who would be entitled to a share of the estate if the deceased person had died without a Will;
• a person who was a guardian or manager for the deceased person prior to their death under the Guardianship and Management of Property Act 1991;
• an attorney for the deceased person under an enduring power of attorney;
A Will is defined to include a revoked Will, an informal Will or a codicil.
Anyone holding a Will for a deceased person, such as an executor or a solicitor, must, upon written request from an interested person, make available a copy of the Will.
The executor is not under a positive obligation to provide a copy of the Will to all the interested persons listed above. But the executor is now under an obligation to provide a copy of the Will if requested by an interested person. The executor (or the executor’s solicitor) is entitled to ask the interested person to pay for the cost of providing the copy of the Will.
The statutory right for certain persons to inspect a Will enhances accountability for executors by ensuring that all potential beneficiaries know of their entitlement. It also assists family members or potential claimants against an estate to seek legal advice early about the effects of the Will.
If you are an executor of a Will, DDCS Lawyers can assist you by explaining your responsibilities and obligations as executor, including in what circumstances you need to provide a copy of the Will to other people.
If you are a beneficiary of a Will, or are wondering if you have an entitlement to the estate of a deceased person, DDCS Lawyers can provide advice on your options and entitlements.
Rebecca Tetlow is a Wills and Estate Planning Senior Associate at DDCS Lawyers, 18 Kendall Lane, NewActon, Canberra ACT 2601 and can be contacted on (02) 6212 7600 or by email at firstname.lastname@example.org.