Penrith Lawyers - Phone (02) 4731 5899

Is there really a reading of a deceased’s person’s Will?

Hollywood whodunnit films often portray scenarios where family of the deceased gather together for a reading of the deceased’s Will with predictable outcries being made by those present who received less than they expected or worse, nothing at all.

However, in New South Wales this practice is rare outside the world of fiction as there is no requirement under the NSW Succession Act 2006 for a formal reading of the Will to occur. So, how do you find out if whether or not you’re a beneficiary under the Will of a recently departed family member?

Who Can Obtain a Copy of the Will?
An Executor of an Estate has a duty to inform each beneficiary of the nature and extent of their entitlement from an Estate under the deceased’s Will and when the beneficiaries might expect to receive their entitlement. However, there is no stated time frame in which this notification must be made and the Executor is not otherwise obligated to provide each beneficiary named in the Will or any other person with a copy of the Will unless a request is made for a copy of the Will and the person requesting it is an eligible person under section 54 of the Succession Act which states that:

Any person in possession or control of a Will relating to an Estate in NSW must arrange a copy of the Will for anyone who is:
• any person named or referred to in the Will, whether as a beneficiary or not;
• any person named or referred to in an earlier Will as a beneficiary of the deceased person;
• the surviving spouse, de facto partner or issue of the deceased person;
• a parent or guardian of the deceased person;
• any person who would be entitled to a share of the Estate of the deceased person if the deceased person 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 of the testator if the testator had died intestate;
• any person (including a creditor) who has or may have a claim at law or in equity against the Estate of the deceased person;
• any 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;
• any attorney under an Enduring Power of Attorney made by the deceased person; and
• any person belonging to a class of persons prescribed by the regulations.

This provision applies not only to an Executor but also to other people who may have possession or control of a Will of a deceased. Typically, these may be the solicitor who prepared it, close family, perhaps a close friend or the deceased’s accountant. If there are any costs associated with obtaining a copy of the Will, these will need to be paid by the person making the request for it.

How to Obtain a Copy of the Will?
If you believe you are someone who is entitled, you can take the following steps to obtain a copy of the Will:

• Firstly, contact the Executor and request a copy of the Will;
• If you find, for whatever reason, that the Executor won’t provide you with a copy of the Will you can make contact with their solicitor to request a copy of it;
• If the above two steps fail, you should contact the NSW Supreme Court Probate Registry as they may have a copy of the Will in their records.

To receive a copy of the Will, you will need to provide evidence that you are an eligible person of s54 under the Succession Act.

What if you have been left out of the Will, and think you should have been included?
If you feel that you have been unfairly left out of a Will, you should contact us to find out if you are able to make a Family Provision Claim and what that may be. As a claimant you would need to demonstrate to the Court that you once depended on the deceased and show a ‘need’ for a share of the Estate compared to the claims of other relatives or beneficiaries.

The Court will consider that someone ‘needs’ a share of an Estate if it is necessary for the claimant’s reasonable maintenance, education or advancement in life. If a claimant cannot show that they require provision for these things, then a claim could fail.

A claimant has 12 months from the date of death of the deceased to make a Family Provision Claim. In some rare circumstances, the Court may agree to extend the 12 months’ time limit. Therefore, it’s important to seek legal advice from us as quickly as possible if you are considering making a Family Provision Claim.

If you are seeking to obtain a copy of a deceased family member’s Will or need assistance to obtain information about your entitlement to their estate please contact Lisa Delalis or Ken Gray of our office on 02 4731 5899 or email willsestates@batemanbattersby.com.au

Contact us to see how we can help you