In this edition of ‘It depends’, associate Sarah Camm talks about whether (and when) you might be entitled to a copy of someone else’s Will.
Hi, my name’s Sarah Camm. I’m an associate here at Cooper Grace Ward in the private clients team. This week on It depends we’re going to be talking about when you might be entitled to a copy of someone else’s Will.
Can I get a copy of my Mum’s will?
The answer to that question is yes. However, it does depend on whether your mother is still alive. While the person is alive and has capacity, they’re not required to give you a copy of their Will or to tell you what’s in their Will and their lawyer won’t be able to give you a copy of their Will either. Once a person has died the Succession Act says that certain people are entitled to a copy of that deceased person’s Will, including their spouse, parent and children, and also people who are named in the Will. Many other family members might be entitled to a Will in certain circumstances, such as grandchildren and siblings, but it really would depend on who has survived the deceased person and on several other circumstances.
I think I may have been excluded from the will, am I entitled to a copy?
The answer to this question is it depends. As I said earlier, spouses, children and parents are usually entitled to a copy of the Will. The Succession Act also says that people who are named in the Will will be entitled to a copy and it doesn’t matter whether they were named as a beneficiary or whether the Will says, for example, I don’t want John to get anything. In those circumstances, John will be entitled to a copy of the Will. Also, if John was named previously as a beneficiary and in the new Will has been left out completely, John’s going to be entitled to those previous Wills and the most recent one. It also doesn’t matter whether John’s named specifically or as part of a class of beneficiaries. So, if the Will says, for example, I give all of my estate to my grandchildren equally and in the new Will doesn’t give anything to any grandchildren, each grandchild will be entitled to a copy of all those previous Wills and the most recent one.
I am the executor in the will. Can I collect the original will?
Yes, if the testator, the person who made the Will, has died, then you as the executor are entitled to collect the original document. You’ll also be entitled to collect a copy of their previous Will and any instructions and informal documents that they use to prepare their Will in some circumstances. The lawyer will need you to prove your identity, and probably that the deceased person has died as well. They’ll also require you usually to sign an authority so that they can release the Will to you and sometimes a receipt too. If there’s more than one executor, all executors will need to sign that authority. Also, just as a practical tip, many lawyers store their documents offsite and so it’s important to give them plenty of notice so that they have it ready for you to collect.
Can I (as attorney) collect a person’s will when they have lost capacity?
An attorney won’t usually be entitled to receive the original Will, but may be entitled to a copy in some circumstances. The reason for this is so that the attorney doesn’t make a decision, like selling property, that might cause a dispute in the estate later on. For example, if they sell a property that’s meant to be going to a specific beneficiary, that beneficiary might miss out entirely and cause a dispute. It will depend on the circumstances. For example, if the attorney is only able to act in relation to personal and health matters, then they probably don’t need a copy of the Will. Also, if they’re the substitute attorney and the previous attorney is still acting, then they probably won’t need a copy then either. Also, even if you’re appointed as a financial attorney and you’re able to act immediately, the lawyers who are holding the original Will may need to see proof that the testator has lost capacity or that they consent to the Will being given to you. If you’re having difficulties getting a copy of a friend or relatives Will or you’re an executor or an accountant and you’re not sure on your obligations, please give a member of our private clients team a call.