The first step in determining your legal position in relation to an Estate Dispute is often looking at the terms of the Will in question.
We regularly have enquiries from clients who are having trouble obtaining a copy of the Will from the executor of the Estate. This is particularly the case when they are not on good terms with the executor. If you find yourself in such a position, you should know that certain categories of people have a legal entitlement to inspect or be provided with a copy of the Will.
Under section 54 of the Succession Act (NSW) 2006, a person who has possession or control of a Will of a deceased person whose estate is to be administered in NSW must allow a person to inspect or have a copy of the Will if they are:
- a person named or referred to in the Will, whether as a beneficiary or not;
- a person named or referred to in an earlier Will as a beneficiary of the deceased person;
- the surviving spouse, de facto partner or child of the deceased person;
- a parent or guardian of the deceased person;
- a person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate;
- a parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate of the testator if the testator had died intestate;
- a person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person;
- a person committed with the management of the deceased person’s estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person; or
- an attorney under an enduring power of attorney
Keep in mind that a copy of the Will may be made available to you at your own expense. An executor may request you pay for copying or postage, for example.
It is also important to note that you are not entitled to see the Will of a person that is still alive. This is the case even if you are an eligible person or you hold their power of attorney. The above right only arises once the person has died. If you have further enquiries please do not hesitate to contact any member of our disputes team.