How to Obtain a Copy of a Will (Vic)
In Victoria, the Wills Act 1997 provides that certain categories of person may obtain a copy of a deceased’s will. In most cases, the person holding the will respects this and informs beneficiaries of the will’s contents without delay, providing copies to eligible parties. This is especially the case when a lawyer or the Public Trustee is holding the will because these professionals understand that they are under a legal obligation to produce the will to certain people. When the will holder is a private individual and will not produce the will, a claimant can get a copy of the will through other avenues. This article outlines the process of locating and obtaining a copy of a will in Victoria.
What Is A Will?
A last will and testament is a legal document made by a testator or by another person on their instructions. A testator’s purpose in making a will is to set out how their assets are to be disposed of after their death. A will may also contain other non-binding provisions, such as details about the appointment of children’s guardians, but these are not legally enforceable.
A will typically nominates one or more persons to act as executors of the estate, but this too is non-binding and the named parties have no obligation to accept. If the named executor agrees to take on the role, they will have to apply for a grant of probate from the Supreme Court to validate the will.
A testator will often leave their original will either with their lawyer or stored in a secure place like a bank safety deposit box or fire-proof safe. It is highly recommended that when a will-maker names an executor, they inform the person of where the will is stored or provide them with a copy so that they can start the deceased estate administration without delay.
Who May Obtain A Copy Of The Will?
A will becomes a matter of public record in Victoria after probate is granted. Challenging a will is much harder after probate is granted, so certain people must have access to the document early, before anyone files for a Probate Grant.
Section 50 of the Wills Act 1997 lists who is entitled to obtain a copy of a will. In order to comply with the directives of this legislation, the executor, administrator, solicitor or Public Trustee must provide a copy to any of the following people:
- Any person named or referred to in the current will;
- Any person named or referred to as a beneficiary in a previous will;
- The testator’s current spouse;
- The testator’s domestic or de facto partner;
- The testator’s guardian, parent or child;
- Anyone entitled to claim against the estate under intestate succession law;
- The parent or guardian of a beneficiary or someone entitled to inherit from the estate under intestacy law; and
- Any creditor with a claim against the estate.
Locating A Will
Sometimes the biggest obstacle to obtaining a copy of a will is ascertaining who has possession of the will. The interested party should first contact the persons and institutions most likely to know the whereabouts of the will, including:
- The deceased’s close family members;
- The lawyer or accountant of the deceased;
- The funeral home (as it may have been informed of the testator’s instructions for their funeral and interment, and know who holds the current will);
- The Probate Office of the Supreme Court of Victoria.
What If An Executor Refuses A Request For A Copy?
Sometimes an eligible person can find a will but is unable to obtain a copy because the executor or administrator refuses to cooperate with their request or causes unreasonable delay. If this occurs, a contested wills solicitor can liaise with the executor and remind them of their duty to provide copies of the will to eligible parties. The matter may be able to be resolved as soon as the claimant’s solicitor communicates with the will holder. If the personal representative is still uncooperative, then a solicitor can file court proceedings to compel the executor to produce the will.
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