31/08/2012

Julie is the executor and a beneficiary under Kerry’s Will.  She lived next door to Kerry for the last 15 years and helped look after her as she got older and more frail. Kerry had a small group of friends and was estranged from her only nephew who lives in England. She left no other family. Should Julie allow Kerry’s friends to inspect her Will? And what about the nephew?

Under the Succession Act 2006 (NSW) a person who has possession or control of a deceased person’s Will is required to allow certain persons to inspect and make copies of the final unrevoked Will, any copy of the Will or any previous Will.  

Section 54 states that the following are entitled to inspect a deceased person’s Will:

• 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;
• A surviving spouse, de facto partner (including same sex) or child of the deceased person;
• A parent or guardian of the deceased;
• Any person who would be entitled to a share of the estate of the deceased if the deceased person had died intestate (without a Will);
• 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 deceased person if the deceased had died intestate;
• A creditor or other person who has 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 New South Wales Trustee & Guardian Act 2009 immediately before the death of the deceased person; and
• Any attorney under an enduring power of attorney made by the deceased person.

These provisions are intended to make it administratively easier to inspect or obtain copies of the Will and to do this prior to any legal proceedings being issued.

For example, a person eligible to make a family provision claim can now promptly find out whether the deceased made adequate provision for them and whether their entitlement has changed from any previous Wills made by the deceased. Alternatively, persons seeking to challenge the will on testamentary capacity or undue influence may want to access previous wills to see the extent of consistency between them. Creditors may also seek to identify to whom certain assets are to be distributed.

So anyone holding a Will on behalf of a deceased person must promptly and properly comply with a request by someone on the permitted list. This includes giving them any copies or originals of any earlier Wills if required to do so under the law.

In the light of this legislation, the Will maker should consider destroying all copies and originals of any earlier Wills if they do not wish to have these seen after they’re gone.

In Julie’s case, Kerry’s friends are only entitled to see the current Will if they are mentioned in it, either as a beneficiary or if Kerry had referred to them to deal with the funeral arrangements. Kerry’s nephew can also inspect this Will as he would have been entitled to a share of the estate if Kerry had not left a Will.

For reference, similar legislation to that of NSW exists in VIC, QLD and NT. The relevant legislation in SA, WA, ACT and TAS does not appear to contain any such specific provisions regarding access to Wills by third parties.

If you have any questions in relation to this article, please contact TOWNSENDS BUSINESS & CORPORATE LAWYERS on (02) 8296 6222.