One of the most common questions we get asked by family members who have lost a loved one (after the immediate steps have been taken) is: “who is entitled to get a copy of the will?”
These days it is rare to have a formal meeting to “read the will” out to family members. Instead, the named beneficiaries will generally receive a copy of the will to notify them of their entitlement usually, by the executor named in the will or person appointed to administer the estate (the personal representative). But sometimes a person who is not named in the will may also ask for a copy of the will (and prior wills). This blog will give you more information on who is and isn’t entitled to a copy of the will.
Access to a copy of the will and prior wills
After someone dies, steps need to be taken to locate and scrutinise the will and check for any other informal wills. This is usually done by the closest next or kin, or the personal representative (the person named executor or person first entitled to be appointed the administrator) for the estate. Once a will or informal will is found, there is an extra step – to locate and gather in any prior wills to check the overall ‘pattern’ of wishes hasn’t changed dramatically in the last will and because a copy of prior wills might be requested.
Are you seeking to challenge the validity of a will (because you think the will maker didn’t have capacity to make the will, or was unduly influenced)? Then, you should ask the personal representative for a copy of the current and prior wills.
Do you intend to make a claim for further provision from the estate? Then, it is important you get a copy of the current will from the personal representative quickly, so that notice of your claim can be given within the timeframe applicable to you – in Queensland it is within six (6) months from the date of death.
If you don’t know who the personal representative is, you could start by asking the deceased’s closest next of kin.
So, who can ask for a copy of a person’s will and prior wills?
In Queensland (under s33Z of the Succession Act), the only people entitled to a copy of the will are:
- A person mentioned in the will (or any of the earlier will/s), whether as a beneficiary or not and whether actually named or not (e.g. ‘the members of my book club’ when those members are not named),
- A spouse, parent or ‘issue’ (child, grandchild and so on) of the deceased,
- A person entitled to a share of the estate on intestacy (where there is no will). These might include brothers and sisters (or nieces or nephews) of the deceased and their remoter issue, grandparents, uncles, aunts and first cousins,
- A parent or guardian of any ‘entitled person’ if that person is a child under eighteen,
- A creditor or other person who has a claim against the estate, or
- Any other person who could apply for further provision. These might include a financially-dependent ex-spouse receiving ongoing maintenance e.g. pursuant to a family court order, or a step-child (including that of a de-facto or same-sex spouse) etc.
Note: The definition of “spouse” includes a married spouse, defacto spouse (of at least two (2) years duration), hetero-sexual or same-sex spouse. So, if a defacto relationship existed before a divorce from an ex-spouse was obtained, there may be two “spouses”.
What do I do?
If you receive a request for a copy of the will, an informal will or prior wills from any of these “entitled” persons you must provide a copy (or, if required, a certified copy) of these documents promptly. However, you can ask the person making the request to pay for the reasonable costs of providing those copies (e.g. if a lawyer is required to make certified copies of these documents).
If you have asked for a copy of a will, an informal will or prior wills and you are not being given these documents in a timely way, you may need help to write a formal legal letter requesting those copies, or some assistance to help you find who to ask.
At Resolve Estate Law, we are here to help you navigate next steps in a calm and compassionate way. Contact us by phone or email, or click here to arrange a complimentary 15-minute consultation if you are not sure how to make the request or respond to a request for a copy of the will.