Access to wills - what you are entitled to know

After someone dies, it is common for family members and others connected to the deceased to want to understand what happens next. One of the first practical questions is often: “Can I see the will?”

In New South Wales, the law provides a clear pathway for certain people to inspect a deceased person’s will and to obtain copies of it, even before probate is granted. There are also court processes available if a will is being withheld, if there is uncertainty about which document is the will, or if you suspect a later will exists.

1. When does a will become accessible?

A will is not automatically “public” immediately upon death. Before the Supreme Court makes a grant of probate (or administration with the will annexed), access is governed principally by section 54 of the Succession Act 2006 (NSW). That section creates a right for certain categories of people to inspect the will and to be given copies.

Once probate is granted, the will is kept with the Court and is publicly available. The practical importance of section 54 is that it provides a mechanism for eligible people to obtain the will (and prior wills) before the grant, including in situations where no grant is intended and the estate is being administered informally.

2. The main right to access a will before probate: section 54

Who must provide access?

Section 54 of the Succession Act 2006 (NSW) applies to any person who has possession or control of a will of a deceased person. This can include a solicitor holding a will in safe custody, a family member holding the original will at home, or any other person with custody or control.

The obligation is practical: if a person holds the will and an eligible person asks to inspect it or obtain copies, the holder must allow that inspection or provide copies at the requester’s expense.

What documents are covered?

Section 54 uses a broad, non-exhaustive definition of “will”. It is defined to include:

• a revoked will;

• a document purporting to be a will;

• a part of a will; and

• a copy of a will.

The definition captures previous wills of a deceased person, as well as incomplete documents such as attachments or separate testamentary papers which appear to resemble a person’s final and settled testamentary intentions.

What can an eligible person ask for?

Section 54(2) requires the holder of a will to allow eligible persons to inspect the will or to be given copies of the will, at the eligible person’s own expense. In practice, this usually involves the holder providing a photocopy or scanned copy and asking the requester to pay reasonable copying and administrative costs.

3. Who is entitled to inspect or receive copies?

Section 54 sets out a broad list of “eligible” persons. The specific categories include:

• 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

• the surviving spouse, de facto partner or issue of the deceased

• a parent or guardian of the deceased

• anyone who would be entitled to a share of the estate if the deceased had died intestate (i.e. without a will)

• a parent or guardian of a minor referred to in the will (or entitled on intestacy)

• a person (including a creditor) who has or may have a claim at law or in equity against the estate

• certain persons connected with the management of the deceased’s affairs immediately before death (such as an enduring attorney or financial manager).

Two points often surprise people:

• you do not need to be a beneficiary to be entitled – simply being “named or referred to” in the will is enough; and

• people who may have a claim against the estate (including potential family provision claimants and creditors) are also within the intended scope.

4. What if the will holder refuses to provide access?

The enforcement mechanism in section 54

Section 54(3) provides that a person who has possession or control of the will must produce it to court if the court requires the person to do so.

In other words, if an eligible person is wrongly refused access, the next step is often to seek a court order requiring production. There can be adverse costs consequences for the holder of a will who unreasonably or unjustifiably refuses to produce it on a section 54 request. If a court order is made and ignored, the consequences can be serious.

A separate (and broader) court power: section 150 of the Probate and Administration Act 1898 (NSW)

The NSW Supreme Court also has a long‑standing “production” power in section 150 of the Probate and Administration Act 1898 (NSW). It allows the court, on the application of any person, to order another person to produce and bring into the registry any paper or writing “being or purporting to be testamentary, or otherwise material to the matter before the Court”, shown to be in that person’s possession or control.

If it is not shown that the person has the document, but there are reasonable grounds for believing that the person has knowledge of it, the court can direct the person to attend to be examined in court about the document.

The interplay between section 54 of the Succession Act 2006 (NSW) and section 150 of the Probate and Administration Act 1898 (NSW) – why section 150 matters

Section 54 is a direct right for defined categories of people to inspect and obtain copies. Section 150 is a broader court tool that can help where:

• the identity of the will holder is unclear

• the will holder says they do not have the will, but you believe they know where it is

• there may be multiple testamentary documents

• a person is suspected of withholding a testamentary paper.

An application under section 150 can be a useful tool where the issue is not simply access, but also locating the correct testamentary document.

5. Draft wills and will instructions: the “grey zone” under section 54

One of the most difficult practical issues is whether draft wills, conference notes, or will instructions fall within the scope of section 54.

The starting point: section 54 is broad, but not unlimited

Section 54 deliberately extends beyond a will executed in accordance with the will formalities. It includes “a document purporting to be a will” and “a part of a will”. The phrase ‘purporting to be’ is significant, as it generally refers to what a document conveys on its face. A document may ‘purport’ to be a will if it contains testamentary language, such as words of gift, appointment of executors, or revocation of prior wills, even if it fails to meet the formal requirements for a valid will. That breadth is helpful where, for example, the deceased prepared a document that looks like a will but did not sign it properly, or where a will exists only as a copy.

In practice, many documents sit between two extremes:

• at one end, a properly signed and witnessed will, which clearly falls within section 54

• at the other end, a ‘grey zone’ that can include instruction notes, a checklist or even a draft will, which would typically appear to be preparatory in nature, rather than constituting a document embodying a person’s final and settled testamentary intention.

A question in some cases about whether a document is merely a working document (such as instructions to a solicitor or a draft) or whether it “purports” to be a will for the purposes of section 54.

Judicial guidance: access provisions are intended to be practical

Unfortunately, there is a paucity of case law which deals with section 54 (and its equivalents in other states of Australia) and its application to documents in the ‘grey zone’. A useful illustration comes from the Supreme Court of Queensland in Saltmer v Rennick Lawyers Pty Ltd [2018] QSC 307 (“Saltmer”). In that case, the applicant sought access to will instructions held by a law firm. Justice Brown considered the Queensland equivalent of section 54, namely section 33Z of the Succession Act 1981 (Qld), which also uses an expanded definition of “will” that includes a “purported will” and “part of a will”.

Justice Brown accepted that the definition of ‘will’ is intentionally broad such as would capture documents which, on their face, may be regarded as a will by non-lawyers.

Justice Brown went on to note that:

The reference to “purported” broadens the definition of “will” so as to include a document which may not satisfy the formal requirements of a will but on its face purports to state the testamentary intentions of a deceased person… A document may purport to be a will if it sets out the testamentary intentions of the deceased, even if the formal requirements under Part 2 of the Act are not met.

The Court also emphasised an important practical limit: the access regime is meant to be an “informal, ready mechanism”, and not to require parties to engage in a process akin to determining whether a document should be recognised as a will under the court’s dispensing power.

Ultimately however, in Saltmer, the Court found that the access provision (s 33Z) did not apply because the will instructions were accompanied by a signed “No Immediate Will Acknowledgment”, expressly stating that the instructions were not intended to operate as the deceased’s will.

The case suggests that some unsigned ‘draft’ wills or will instruction forms may be accessible under section 54, particularly if they appear, on their face, to be testamentary in nature (for example, a substantially complete draft will or instruction sheet accompanied by some indication on or accompanying the document suggesting that it was intended to have present operation as a will). However, if the document is clearly preliminary or expressed to be ‘instructions only’, or if it is imprinted with a ‘draft’ watermark, it is doubtful whether it is captured by section 54.

6. Key points to remember

• NSW law provides a statutory right for certain people to inspect and obtain copies of a deceased person’s will before probate.

• A solicitor holding a will in safe custody is bound by the section. Even if the executor or the estate has instructed the solicitor not to provide copies, the statutory obligation takes precedence. Solicitors cannot give effect to instructions that would require them to breach section 54.

• “Will” is defined broadly for this purpose, including revoked wills, purported wills, parts and copies.

• If access is denied, an application can be made to the Court to compel production.

• The Court also has a broader power under section 150 to order production of testamentary papers and to examine persons with knowledge of them.

• Drafts and will instructions can be contentious and will often fall into a grey zone as to whether they are captured by the scope of section 54. If there is uncertainty about the status of such documents, timely legal advice can assist in identifying the most efficient and cost-effective way forward.

If you are being refused access to a will, are unsure whether you are entitled, or suspect a will is missing or being withheld, we can help. Our estate litigation team regularly advises on access rights, missing wills and court applications. Contact us for confidential advice on your options and next steps.

Author: Raffael Maestri

 

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.