We are often asked by clients who are appointed as an executor of an Estate whether they need to gather the family around and ‘read the Will’ out loud. While this is often the kick off point for an Agatha Christie murder mystery, this formality is not required in Australia.
So, how do you find out if you are in someone’s Will?
How do I find out if I am in someone’s Will?
If you are the executor then, you may ask yourself, “when and how do I notify beneficiaries that they are included in the Will?” If you think you may be a beneficiary, you may ask yourself, “how do I find out if I have been included in the Will?” The answer depends on the State or Territory in which you live.
In South Australia, until a grant of probate has been made, the executor or person in possession of the Will is under no obligation to confirm whether a person is a beneficiary included in a Will. However, once a grant of probate has been made, the Will becomes a matter of public record. Probate can take months rather than weeks so a person may have to wait some time until they can get a copy. Once probate has been granted, members of the public can obtain a copy of any Will that has been lodged with the Probate Registry, online. If unsure whether or not a Will has been lodged and granted probate, a person may need to periodically conduct a search.
From 1 January 2026 the new Succession Act 2023. gives certain classes of persons the right to inspect a Will of a deceased person. The holder of the Will must provide a copy of the Will to any one or more of these persons that request a copy of the Will. The classes of persons include persons named in the Will, beneficiaries, surviving spouses and domestic partners or former spouses and domestic partners, parents or guardians of the deceased and persons eligible to a share of the estate under the rules of intestacy had the person died intestate. Persons with claims against the estate in law or equity can also inspect the Will but only with the permission of the Supreme Court (the Court) if they have a proper interest in the matter and it is appropriate for them to do so.
In New South Wales, the Succession Act 2006 dictates who is entitled to request to see the Will. This includes:
- 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 issue 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 attorney under an enduring power of attorney made by the deceased person; and
- any person belonging to a class of persons prescribed by the regulations.
What if I have been left out of the Will, and I think I should have been included?
If you feel that you have been unfairly left out of a Will, you should contact us on 1300 654 590 or email us at wehelp@adlvlaw.com.au to find out if you are able to make a claim for fair provision, and what that may be. We note that there are strict time limits for making such a claim, so it is a good idea to take action quickly!
The information contained in this post is current at the date of editing – 29 May 2024.
