Recently I was contacted by an individual in New Zealand whose father had passed away in Australia. She was not in touch with the second wife of her father who was purportedly the executor and sole beneficiary of the small estate. The individual was not so concerned as to being a beneficiary but wanted proper closure and to ensure that the wishes of her father under his Will would be carried out.
A Law Firm in New Zealand did in fact have possession of he last Will but had not been contacted by the executor for it and did not want to provide it to anyone else without the executor’s authority. It seemed that the actual estate in question did not warrant any formal administration, however we really wanted to get a copy…
In NSW (and equivalent legislation is now in place in all Australian States) the Succession Act 2006, introduced provisions that allowed certain people to access a Will of deceased person. It deems a “will” to include a revoked will, a document purporting to be a will, a part of a will and a copy of a will.
It further provides that:
“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 a 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 (whether of the same or the opposite sex) 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.”
This is not only a fairly broad list of people entitled to see the Will, but also allows for the inspection of prior Wills which may lead to questions of capacity etc. In the recent case referred to above the Firm had initially understood that the law allowed for inspection of a Will that was subject to Probate or had otherwise been acted upon. They were also concerned as to the potential risk of the Executor for releasing the Will without her consent. When the full legislation was provided they accepted our request and provided a copy of the Will.
I am unsure as to whether similar legislation exists in New Zealand or indeed other jurisdictions. It does provide nuances for partitioners to consider the prudency for their clients to request copies of a Will before probate is granted and to those who are considering making any family provision claim to check the actual provision made for them before making such a claim.
Footnote to my last article….
The Corporations Amendment (No 1) Bill 2010 was read in Parliament and the Senate but not passed before the Federal Election was called!!! This means that the shonky low ball offers for shares will continue for a little while longer.