Legal Tip 224: Who can see your will after your dead?

Under NSW law certain people have a right to inspect the will of a deceased person. (Similar rules apply in other states too).

These include

- Anyone named in the will

- Anyone named as a beneficiary in a previous will

- A de facto or spouse of the deceased

- Anyone who would have been entitled under intestacy laws

- A parent or guardian of a minor named in the will

- A creditor

- An enduring attorney

- Any person prescribed under the regulations


Example

Homer dies, but leaves everything to his long time lover Ned.

Homer’s wife Marge is entitled to view the will as is Mrs Crabapple who Homer was having an affair with and met the definition of ‘defacto’.

Homer’s children miss out so they would be entitled to view the will.

Homer left something to Barney in a previous will so he could have a look.

Homer also owes $100 to his accountant so they are creditors and can get a look at the will.

Homer also had Appointed Mr Skinner his enduring attorney so he can view the will too.



So the person who has the will should give copies to all of these people, at their expense, if they ask.



Tip: The will is a semi-public document so be careful what you put in it as you never know who may end up reading it.

See s 54 Succession Act 2006 (NSW)

SUCCESSION ACT 2006 - SECT 54 Persons entitled to inspect will of deceased person

 

What if one of them doesn't know that Homer passed away?

What if they find out a few years later that they were entitled to inherit but were left out of the will? Eg if Barney was Homer's love child to Mrs Crabapple?

 

@Terry_w, I have a similar question to the one above.

If someone would normally expect to be a beneficiary, say a son, and the mother left him out of her Will, how long after her death does the son have the right to read her Will?

What if the mother’s Estate is now finalised?

 

If they don't know then they can't request a copy of the will. There is no compulsion for anyone to see out people who might want a copy.
There is also a requirement for the person applying for probate to advertise this so it gives others a chance to challenge being executor or to come up with later wills. Also there must be another advertisement before the distribution of the estate.

 

Generally it is 12 months to put in a family provision claim, from the date of death. It can be longer with the leave of the court.
If the estate is finalised it can be unfinalised and distributions clawed back potentially.

 

Can anyone who contests the will automatically get to see it?

 

Anyone contesting a will would fall into one of those classes I imagine.

 

Times for lodging a family provision claim vary in each jurisdiction, and also whether the clock starts running at death or grant of probate (or letters of administration).

NSW - 12 months from death
QLD - 9 months from death (also 6 months to file notice of intention to make a claim)
VIC, SA and WA - 6 months from grant
TAS - 3 months from grant
ACT and NT - 12 months from grant

So Queensland and Tasmania have the shortest timeframe for first action - depending on how long it takes to obtain the grant, usually around 2-3 months, so both require first action around 6 months post-death - and ACT/NT have the longest, at around 15 months from death.

 

Much can be said to keeping a death secretish. Don't go telling people who could make a family provision claim as the longer they leave it the harder they will find it to get leave of the court to lodge a claim