Section 54 of the Succession Act 2006 (NSW) gives certain people a legal right to inspect or obtain a copy of a deceased person’s Will by making a request to the person holding the Will. A person wishing to obtain a copy of the Will will therefore most commonly have to make a written request to the deceased person’s solicitor, executor, or trustee organisation such as the NSW Trustee and Guardian, where a Will (or a copy of the Will) is often held.

The categories of people who are entitled to receive a copy of the Will in NSW include:

1. Any person named or referred to in the Will (whether as beneficiary or not)
2. Any person named in an earlier Will as a beneficiary
3. The surviving spouse or de facto partner of the deceased person
4. Any child or issue of the deceased person
5. A parent or guardian of the deceased person
6. Any person who would have been entitled to a share in the estate if the deceased person had died without a Will
7. The parent or guardian of any person under the age of 18 referred to in the Will or who would be entitled to a share of the estate if the deceased person had died without a Will
8. Any person who has or may have a claim against the estate of the deceased (for example, a person owed money or a person entitled to make a family provision claim)
9. A financial manager for the deceased appointed under the NSW Trustee and Guardian Act 2009
10. Any person named as an attorney in an enduring power of attorney made by the deceased person

It is not common practice in Australia for there to be a “reading of the Will” as is sometimes seen in foreign movies. A beneficiary or other person who has requested a copy of the Will will have to seek their own independent legal advice if they have any queries or require advice in respect of the Will.

Previous Wills

A person entitled to inspect or obtain a copy of the Will is also entitled to inspect and obtain a copy of any previous Wills of the deceased person from the person holding a previous Will. This can be relevant when you are concerned that the deceased may not have had mental capacity to make their last Will and therefore seek to uphold an earlier Will as the deceased person’s last valid Will.

Solicitor’s File

It is important to note that section 54 of the Succession Act only applies to the Will and previous Wills of the deceased person. You cannot compel the release of other legal documents or the solicitor’s file in relation to the preparation of the Will. Access to those materials will usually require authorisation of the executor or a court order.

If there is a dispute about the validity of the Will or the deceased person’s testamentary capacity to make the Will, the solicitor’s file in relation to the preparation of the Will, and the solicitor’s evidence more generally in respect of the preparation of the Will, can be obtained by issuing a subpoena in Supreme Court proceedings. In Re Estates Brooker-Pain and Soulos [2019] NSWSC 671, the Court emphasised that information regarding the preparation of a deceased person’s Will should be obtained through the oversight of the Court and available to all interested parties, rather than being contained to private correspondence between parties.

If you need assistance obtaining a copy of a Will or advice in respect of an estate, contact us by leaving us a message or telephone us on (02) 9698 9160 to discuss how we can assist you.

The information in this article is a general overview and for educational purposes only. Each situation is unique and professional legal advice should be sought for specific circumstances. Refer to our website terms of use for further details.