A will can be a very personal thing and discussing its contents may be uncomfortable. You may only wish for certain people to see your will, even when you’ve passed. So who is able to see your will? A person writing their will or ‘testator’ may want to control who can and can’t see their will, but unfortunately, after death, there are laws in place that govern who can gain access to your will.
A will is a legal document, signed by two witnesses, which sets out how one’s affairs and assets should be managed and divided after their death. A will should appoint one or more executors who will be responsible for handling funeral arrangements, calling in assets and ultimately distributing the estate to beneficiaries.
A will is usually kept by a solicitor where it is held until the testator’s death. Prior to this, the will is not considered ‘effective’’. During this time only the testator can access the will and a solicitor is unable to release the will to anyone unless express permission is given by the testator. Many seem to think that if they are attorney under a power of attorney they are able to have access to the will or remove from the custody of the solicitor who has it. This is not the case a power of attorney only relates to financial matters and does not entitle an Attorney to access or control or amend a persons will.
For many people, their circumstances change over the years and it is natural for people to update and change their will as their situation changes. Because a will can be updated and amended up until the testator’s death, it is important at the time of a testator’s death that the last valid will is located. It is for this reason a will is only considered effective when the testator passes.
So we know who can access a will before the testator passes, but who can see the will after a person dies? When the will becomes effective the list of people able to inspect such a document dramatically expands. Persons entitled to inspect the will of a deceased person is set out in section 54 of the Succession Act 2006 and 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 of the deceased person,
- the surviving spouse, de facto partner or child 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 person belonging to a class of persons prescribed by the regulations.
At Taylor & Scott Lawyers we can assist you with your Estate Planning including the drafting of your will and subsequent safekeeping. We take instructions and the wishes of our clients seriously and our team will be available to assist your family and loved ones in the difficult time following your departure. Contact us today for assistance with your will.
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