Where There’s a Will, There’s Now a Way

The ACT recently brought itself into line with most other Australian jurisdictions when the Legislative Assembly enacted legislation giving certain people the right to access a copy of a deceased’s will. As of 17 November 2014, section 126 was inserted into the Administration and Probate Act 1929. It gives an ‘interested person’ the right to inspect, or be provided with, copies of a will, even if the holder only has a copy of the will themselves. A will is defined to include a revoked will, an informal will, or a codicil to any will. The inclusive definition means that the Act does not limit the documents which may be accessed.

Before this law was passed, there was little recourse available to force someone to provide a copy of the will of a deceased person. As a result, in some circumstances it was difficult to hold an executor to account or know whether to challenge the will.

There is a range of reasons why a person might need to look at a will or former will of a deceased person. In a claim for family provision, for instance, one of the factors considered by the court is the testamentary intentions of the deceased person. Examining a former will is one way to shed light on these intentions. It may also be necessary to confirm whether or not the deceased had testamentary capacity at the time they gave instructions for their will. Further, former wills may be evidence of the authenticity of the testator’s signature on their last will.

In practice, firms could previously ask the Supreme Court to permit access to the will once the executor applied for probate. However, this only helped where the executor needs to apply for probate (which is not always necessary) and the costs of accessing the will in this manner were significant.

Under the amended legislation, an ‘interested person’ is defined with reference to nine broad categories and includes:

  1. the spouse, partner, parent, or child of the deceased;
  2. a person who would be entitled to a portion of the estate if it were distributed according to the laws of intestacy;
  3. a person named or referred to in that will;
  4. a beneficiary in that will or in an earlier will; and
  5. an attorney or the guardian or financial manager of the deceased person.

A person does not necessarily need to be specifically identified in a will. A person will have the right to request a copy of a will if he or she meets the description of a class of people in the will such as ‘brothers and sisters’.

The only formalities contained the new legislation are that the interested person must make the request in writing, and, to the extent that there are any costs associated with furnishing or copying the will, the interested person must personally bear those costs.

The Act places a positive obligation on any person with ‘possession or control’ of a will to grant access to an interested person. The executor, law firms, and other institutions that employ safe custody procedures cannot refuse access to a copy of a will or former will if the person making the request is an interested person.

So, provided a person can demonstrate that they fall into one of the categories of an ‘interested person’, a request made pursuant to section 126 creates an unqualified obligation to provide copies or access. No additional documentation is required, and access is not dependent on obtaining the consent of any client, or executor or administrator of an estate.

This change to the Act is a positive development. The legal right to access a will is a measure which is designed to save time and, consequently, lower costs. It should simplify the process of estate administration and limit associated potential litigation.

If you would like more information, Bradley Allen Love can provide you with advice on your responsibilities as an executor and your rights as a beneficiary.