Once someone dies there is often a queue of people interested in discovering the terms of the will. This raises the question: who is allowed to see the deceased’s will?
Once upon a time the people who were allowed to see the will be limited, but legislation now provides the structure by which certain people and entities can obtain a copy of a deceased person’s will.
In Queensland, this is covered by section 33Z of the Succession Act 1981 (Qld), which states that any person who has “possession or control” of a deceased’s will must allow entitled persons to inspect the document or give them a certified copy of it.
Who is allowed to inspect a will?
The legislation provides for an entitled person to inspect a deceased’s will. They comprise:
- Anyone mentioned in the will (whether or not they are a beneficiary or named or not).
- 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, spouse, de facto partner or child of the deceased.
- A parent or guardian of any minor child (that is a child under 18) referred to in the will, or who would be entitled to a share of the deceased’s estate if they had died intestate (i.e. without leaving a 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 at law or in equity against the estate.
- Any person entitled to bring a claim against the estate for provision (the deceased person’s spouse, child or dependant).
The person who has ‘possession or control’ of the deceased’s will may charge a fee for providing a certified copy, but this is limited to their reasonable expenses such as photocopying and postage.
Are there any other circumstances in which someone can view a will?
If Probate of the will is obtained from the Supreme Court, in most circumstances any member of the public, upon payment of a fee, can obtain a copy of the Probate which contains a copy of the will.
In some circumstances, a person’s will can be accessed prior to your death. Some scenarios such as incapacitation of the will-maker may mean an administrator appointed by the Queensland Civil and Administrative Tribunal (‘QCAT’)or your attorney appointed under your enduring power of attorney needs to access the person’s will to make informed decisions about anything the administrator or attorney is authorised to do. An administrator or attorney must demonstrate their need to access a copy of your will. An administrator or attorney is not entitled to make, revoke or amend your will.
What should you do if you’re worried about someone accessing your will?
It is often the case that conflict or dispute lies behind someone’s desire to see a will. A person seeking to challenge the validity of the will, or bring a claim against the estate may want to view your will. For this reason, it is advisable to consult a legal professional experienced in wills and estates planning when undertaking the will-making process. They can provide you with advice when persons are able to inspect your will. They can also hold your will in their safe custody so that only entitled persons can inspect or obtain a copy.
They will also stress the importance of maintaining an updated will that continues to reflect your wishes as relationships and circumstances change throughout your life. This avoids you dying intestate (without a valid will) or with conflicting will documents (which will often result in dispute among beneficiaries).
At Big Law, we have long-term experience and expertise in planning wills and estates for our clients. Contact us today at (07) 3482 6999 or [email protected] if you have any questions about the points raised in this article.
