Who can inspect your will?

Posted on April 17th, 2015

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by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and practises primarily in  Commercial & Property Law.

While you are living no one other than yourself is entitled to inspect your will; of course this does not prevent you from allowing someone to inspect your will while you are living. But what happens after you die; who can inspect your will then?

Prior to 1 March 2007 a deceased person’s will could only be inspected (after the deceased person died) with the consent of the Executor appointed by the will. If Probate of the will was subsequently obtained, the will would become part of the public record at the time, however if Probate was not required, the Executor could potentially keep the terms of the will confidential. The Succession Act has, however, introduced provision for a significant number of people to have the right to receive a copy of a deceased person’s will.

Under Section 54 of the Succession Act a person who has possession or control of your will after your death must allow any one or more of the following persons to inspect or be given copies of the will:-

(a) any person named or referred to in the will;

(b) any person named or referred to in an earlier will as a beneficiary;

(c) your surviving spouse, de facto partner (whether of the same or the opposite sex) or child;

(d) your parent or guardian;

(e) any person who would be entitled to a share of the estate if you had died intestate (without a will);

(f) any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate if you had died intestate;

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

(h) any person committed with the management of your estate immediately before your death; and

(i) any attorney under an enduring power of attorney made by you.

It is therefore important when preparing your will to keep in mind the wide range of people who may subsequently view it following your death. Your will, while it once could disclose your testamentary intentions to only your executor, may now be viewed by a wide number of people. While it is a document which you may not want revealed to certain people, so as to avoid disharmony after your death, Section 54 does not allow you to prevent this any more. Careful drafting should therefore be undertaken when preparing your will, particularly before deciding to include reasons for certain testamentary intentions within your will.

Lana Black is a Solicitor at Mullane & Lindsay and practises in Commercial and Property Law as well as Criminal/Traffic Law. If you require any assistance in this area please contact Lana Black to arrange a consultation or contact our Newcastle office.

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