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How to Obtain a Copy of a Will (NSW)

Accessing a will in New South Wales depends on the circumstances surrounding the document: whether the testator is alive, has passed away, or if the will has been lodged with the courts. The process is guided by legal principles under the Succession Act 2006, the Probate and Administration Act 1898, and court practices. This article outlines the steps, legal rights, and practical considerations for obtaining a copy of a will in various scenarios.

Obtain a copy of a will during a testator’s lifetime

During a testator’s lifetime, their will is a private and confidential document. It is typically held in a secure location, either in the possession of the testator, their solicitor, or in a bank safe deposit box. While they are alive, the testator has full control over who can access their will. As such, it is generally only possible to obtain a copy of the will of a living testator with their consent. While the testator is under no legal obligation, they may share the contents of their will with beneficiaries or other family members.

Exceptional circumstances

If the testator becomes incapacitated, their attorney may grant access under a valid power of attorney, subject to the terms of the attorney’s authority. In rare cases, someone may seek court intervention to obtain a copy of a will for a living person if that person is incapacitated or there is another compelling legal reason. For example, if someone has concerns about the management of the estate of a person who lacks capacity, they may seek a court application to inspect that person’s will and clarify whether they have an interest in the estate as a future beneficiary.

Who is entitled to obtain a copy of a will?

The executor, as the person responsible for administering the estate, is responsible for locating the testator’s most recent will. The original document is often held by the testator (in their files or a safety deposit box) or left with their solicitor. Sometimes the testator choses to lodge the original will with the Supreme Court for safekeeping.

Under Section 54 of the Succession Act 2006, specific individuals are entitled to inspect or obtain a copy of the will after the testator’s death. These include:

Executors

The named executor has the primary right to access the will. A similar right applies to anyone who had power of attorney or legal authority to manage the testator’s estate before their death.

Beneficiaries

Anyone named in the current or previous wills, including those who receive specific gifts or are named as residuary beneficiaries. Those who are eligible to inherit under intestacy law can also access the will.

Family members

The category includes any people who would be entitled to a share of the estate under intestacy laws if the testator died without a will (such as their spouse, children, and parents/guardians). It also includes the guardians or parents of minor beneficiaries.

Other interested parties

Those with a valid claim against the estate may inspect the will to determine its contents. This can include individuals who have standing to contest the will, those involved in disputes over its validity, and creditors of the testator. If disputes arise over the contents or validity of a will, access may be a preliminary step in broader estate litigation. For instance, parties involved in family provision claims must first seek to inspect the will to determine the grounds for their case.

Locating a will for probate

When an executor decides to apply for probate, they must lodge the will with the Supreme Court. Probate is a legal process whereby the court confirms the validity of the will and grants the executor authority to administer the estate. Once probate is granted, the will is listed on the publicly available probate registry, and any member of the public can obtain a copy of the will from the Supreme Court of NSW by paying the applicable fee.

On the other hand, if the executor is undertaking the administration of the estate without applying for probate, it may be more difficult to obtain a copy of the will. Only those people who are legally authorised can make a direct request to the executor or the person holding the will. Eligible individuals can make a written request to the will’s custodian, identifying themselves, citing the nature of their interest in the will (family member, beneficiary or creditor) and requesting to inspect the will or receive a copy of the document.

Executor’s obligations

The executor is legally obligated to provide a copy of the will to entitled individuals. Failing to to comply may lead to court intervention. If informal efforts to obtain a copy of the will fail, an application can be made to the court seeking access. The applicant can file a summons or motion with the court, supported by an affidavit explaining their entitlement and the reasons for seeking access.

Costs and practical considerations

Obtaining a copy of a will in NSW usually involves some expense, depending on the method.

Direct request to the will-holder

Solicitors and executors often charge administrative fees to provide a copy of the will.

Court application to obtain a copy of a will

Court applications for a copy of a will involve court filing fees and, potentially, legal representation costs.

Probate registry

The court charges a fee for providing copies of wills lodged for probate.

Obtaining a copy of a will in NSW can be relatively easy or very difficult depending on the status of the will and the applicant’s entitlement. While the process is straightforward in many cases, disputes or lack of cooperation from the executor may require legal action. Understanding the legal framework and practical steps ensures that interested parties can access the will and protect their rights in the estate administration process.

Please contact Go To Court Lawyers on 1300 636 846 for any legal advice.