Who is entitled to a copy of the Will and Probate docs?

Can I Get a Copy of Someone Else's Will?

There are many reasons as to why you may want a copy of someone else's Will.

🧩 Perhaps you are a relative of the testator (meaning: the person who has made the Will) and you would like some foresight as to the tax implications of any interest you may have.

🧩 Perhaps you suspect that the testator had been pressured into making a new Will whilst lacking testamentary capacity (meaning: capacity of a testator to make a valid Will).

🧩 Maybe you are a creditor of the testator, and you would like to peruse the Will in case it itemises the testator's assets.

Whilst the testator is still alive, there is nothing to stop you from asking the testator directly for a copy of the Will, though of course, the testator is in no way obliged to send you a copy.

Upon the death of a testator, the situation changes somewhat.

You could ask the executor (meaning: someone appointed by the testator to carry out the instructions on a Will) for a copy, though again, the executor is not obliged to do so unless you have a Statutory Entitlement (refer below for more information).

Generally, you can only obtain a copy of someone's Will once the executor had applied for, and been issued a Grant of Probate (meaning: right to carry out the instructions in the Will) by the relevant Probate Court.

Upon a Grant of Probate, a Will becomes a public document, accessible via a search on the Probate Registry.

However, this is a process that could take several months, and you may be required to bear some costs to make searches on a Probate Registry.

Where you have not been separately informed by the executor as to your interest under the Will (or whether you have an interest at all), it could be some time before you know anything of how your tax position might change or whether you need to prepare to contest the Will.

Statutory Entitlement to a Copy of Someone's Will

Fortunately, the following States (and Territory) grant a Statutory Entitlement to certain persons (as defined by the relevant legislation) access to a copy of the Will following the death of a testator, before a Grant of Probate:

⚖️ New South Wales - Succession Act 2006 - s 54

⚖️ Northern Territory - Wills Act 2000 - s 54

⚖️ Queensland - Succession Act 1981 - s 33Z

⚖️ Tasmania - Wills Act 2008 - s 63

⚖️ Victoria - Wills Act 1997 - s 50

Similar Core Approach to the grant of Statutory Entitlement

The above provisions show some degree of variance from state to state, though they broadly share the same core approach in permitting:

✅ A particular class of people to request a copy of the Will from the person who has control or possession of the Will of a deceased testator (usually the executor);

✅ At the expense of the requestor;

✅ A Will in this context includes:

1️⃣ A revoked Will;

2️⃣ A document purporting to be a Will;

3️⃣ A part of a Will; and

4️⃣ A copy of a Will.

The common classes of persons permitted to request a copy of the Will are:

✅ Any person mentioned in the Will; this person does not have to be a beneficiary (i.e. they don't need to be given something under the Will; it is enough that they are named or referred to in the Will);

✅ Any person named in a previous Will as a beneficiary;

✅ A spouse/partner/parent/issue of the testator, except in …

➲ NSW does not include parent(s);

➲ NT does not include partner;

➲ QLD does not include partner;

➲ TAS does not include partner;

➲ VIC does not include issue, but includes children instead.

✅ A person who would have been entitled to a share of the estate of the testator had the testator died intestate (meaning: someone who died without a valid Will);

✅ A parent or guardian of a minor mentioned in the Will, or of a minor who would have been entitled to a share of the estate had the testator died intestate; and

✅ A creditor of the testator, or otherwise someone with a claim (in law or equity) against the estate of the deceased.

Note: The list above is a generalisation, created to help you gauge whether you are somewhere in the ballpark as to the class of persons who may request access to a Will before a grant of probate.

The specific provisions vary by State (and Territory) and can be found below.

There are additional classes in some states, and others narrow the classes described above.

You should take care to look over the list for your State/Territory before considering any action, or discussing your options in more detail with our legal team.

New South Wales

The category of persons entitled to inspect the Will of a deceased person in New South Wales can be found under s 54 of the Succession Act 2006 (NSW).

New South Wales provides for additional classes of people eligible to access a Will, found in paragraphs (h), (i) and (j) below.

With regards to paragraph (j), the Succession Regulations 2020 do not appear to prescribe any further classes of people.

As per subsection (2) of s 54:

A person who has possession or control of a Will of a deceased person must allow any one or more of the following persons to inspect or be given copies of the Will (at their own expense) -

(a) any person named or referred to in the Will, whether as beneficiary or not,
(b) any person named or referred to in an earlier Will as a beneficiary of the deceased person,
(c) the surviving spouse, de facto partner or issue of the deceased person,
(d) a parent or guardian of the deceased person,
(e) any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate,
(f) 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,
(g) any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
(h) 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,
(i) any attorney under an enduring power of attorney made by the deceased person,
(j) any person belonging to a class of persons prescribed by the regulations.

Northern Territory

The category of persons entitled to see the will of a deceased person in the Northern Territory can be found under s 54 of the Wills Act 2000 (NT).

As per subsection (2) of s 54:

A person who has possession or control of a Will of a deceased person must allow any one or more of the following persons to inspect the Will and make copies of the will at their own expense:

(a) a person named or referred to in the Will, whether as a beneficiary or otherwise;
(b) the surviving spouse or issue of the deceased person;
(c) a parent or guardian of the deceased person;
(d) a person who would be entitled to a share of the deceased person's estate if the deceased person had died intestate;
(e) a creditor or other person having a claim at law or in equity against the deceased person's estate;
(f) a beneficiary of a prior Will of the deceased person;
(g) a parent or guardian of a minor referred to in the Will or a minor who would be entitled to a share of the deceased person's estate if the deceased person had died intestate.

Queensland

The category of persons entitled to inspect the Will of a deceased person in Queensland can be found under s 33Z of the Succession Act 1981 (Qld).

‍Section 41, mentioned in paragraph (g) below, gives power to the Supreme Court of Queensland to make orders for the proper maintenance of the spouse, children or dependants from the estate of a deceased person, where the existing provisions for maintenance are inadequate.

An order for a s 41 order may be made by the spouse, children or dependants of the deceased, or by anyone acting on their behalf.

As per subsection (4) of s 33Z:

Entitled Person, in relation to a Will, means -

(a) a person mentioned in the Will, whether as beneficiary or not and whether named or not; or
(b) a person mentioned in any earlier Will of the testator as a beneficiary and whether named or not; or
(c) a spouse, parent or issue of the testator; or
(d) a person who would be entitled to a share of the estate of the testator if the testator had died intestate; or
(e) a parent or guardian of a minor mentioned in the Will or who would entitled to a share of the estate if the testator had died intestate; or
(f) a creditor or other person who has a claim at law or in equity against the estate; or
(g) a person who may apply for an order under section 41.

Tasmania

The category of persons entitled to inspect the Will of a deceased person in Tasmania can be found under s 63 of the Wills Act 2008 (Tas).

As per subsection (1) of s 63:

Any person having the possession or control of a Will (including a revoked Will) or a copy of any such Will and any part of such a Will (including a purported Will) of a deceased person must allow any or all of the following persons to inspect and, at their own expense, take copies of it:

(a) any person named or referred to in it, whether as beneficiary or not;
(b) the surviving spouse, any parent or guardian and any issue of the testator;
(c) any person who would be entitled to a share of the estate of the testator if the testator had died intestate;
(d) any creditor or other person having any claim at law or in equity against the estate of the deceased;
(e) any beneficiaries of prior Wills of the deceased;
(f) a 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.

Victoria

The category of persons entitled to inspect the Will of a deceased person in Victoria can be found under s 50 of the Wills Act 1997 (Vic).

As per s 50:

A person who has possession and control of a Will, a revoked Will or a purported Will of a deceased person must allow the following persons to inspect and make copies of the Will (at their own expense) -

(a) any person named or referred to in the Will, whether as beneficiary or not;
(b) any person named or referred to in any earlier will as a beneficiary;
(c) any spouse of the testator at the date of the testator's death;
(d) any domestic partner of the testator;
(e) any parent, guardian or children of the deceased person;
(f) any person who would be entitled to a share of the estate if the deceased person had died intestate;
(g) 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;
(h) any creditor or other person who has a claim at law or in equity against the estate of the deceased person and who produces evidence of that claim.

What about the ACT, South Australia and Western Australia?

Unfortunately, in the ACT, South Australia and Western Australia, the legislation does not really provide for access to Wills prior to a grant of probate.

That said, in the ACT, s 32 of the Wills Act 1968 provides for the capacity of individuals to deposit a Will for safe storage with the Office of the Registrar. s 34 provides that a person may make searches on the register, though this does not mean that a person has access to a Will found on the register, not to mention the fact that a testator may well have stored his or her Will somewhere other than with the Registrar.

In Western Australia, s 40 of the Wills Act 1970 provides for the capacity of the WA Supreme Court to make, alter or revoke a Will on behalf of a person who lacks testamentary capacity. s 44 then states that any Will so made or altered is to be stored with the Principal Registrar.

s 45 then permits an individual to make applications to the Court to request a copy of the Will from the Principal Registrar.

These are provisions that are activated by a very particular set of circumstances (on amendment or creation of a Will by a court on behalf of someone lacking testamentary capacity), and will be of limited relevance to the vast majority of those seeking access to a Will prior to the grant of probate.

Credits:

This FAQ was prepared by Suk Jae Chung | Practical Legal Training (PLT) Placement, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.