Author Dane Thornburgh – Solicitor Advocate Quin Law Group – Wills & Estate Litigation
When a family member dies, one of the first legal questions I am often asked is:
“How do I obtain a copy of their will?”
Sometimes the family knows which solicitor prepared the will and where the original is stored. In other cases, nobody knows whether a will exists, one family member refuses to disclose it, or relatives are told that its contents are “private”.
In Queensland, access to a deceased person’s will is governed principally by section 33Z of the Succession Act 1981 (Qld). The section gives certain people a legal right to inspect the will or obtain a certified copy.
A will is not necessarily a private document after death
While a person is alive, their will is generally confidential, and family members do not ordinarily have a right to inspect it without the will-maker’s authority.
The position changes after death.
Section 33Z provides that a person who has possession or control of the will of a deceased person must, when requested by an “entitled person”:
- allow that person to inspect the will;
- provide that person with a certified copy of the will; or
- do both.
The person requesting the certified copy may be required to pay the reasonable expenses involved in providing it.
Importantly, this obligation is not limited to executors or solicitors. It applies to any person who has possession or control of the will. That could include a family member, accountant, trustee company or another professional adviser.
Who is entitled to see the will?
Section 33Z defines the people who may inspect or obtain a certified copy of a deceased person’s will.
An “entitled person” includes:
- A person mentioned in the willThis applies whether or not the person is a beneficiary and whether or not the person is specifically named. For example, a reference to “my children” may be sufficient even if the children are not individually named.
- A beneficiary mentioned in an earlier willA person who was a beneficiary under an earlier will may request access, even if that person believes they were removed from the deceased’s most recent will.
- The deceased’s spouse, parent or issue“Issue” ordinarily includes the deceased’s children and other lineal descendants, such as grandchildren.
- A person who would inherit if the deceased had died without a willThis category is determined by Queensland’s intestacy provisions. It may include a spouse, children, parents or other relatives, depending on the deceased’s family circumstances.
- A parent or guardian of an eligible minorThis includes the parent or guardian of a minor mentioned in the will or a minor who would have inherited if the deceased had died intestate.
- A creditor or another person with a legal or equitable claim against the estateThis may include someone who says the deceased owed them money or that they otherwise have an enforceable claim against the estate.
- A person who may apply for family provisionThis refers to a person who may be eligible to seek further provision from the estate under section 41 of the Succession Act.
The categories are deliberately broad. A person does not have to prove that they will ultimately receive an inheritance before requesting access.
What documents can be requested?
Section 33Z is not confined to the final signed will.
For the purpose of the section, a “will” includes:
- a purported will;
- a revoked will;
- part of a will;
- part of a purported or revoked will; and
- any codicil forming part of the deceased’s testamentary documents.
If the original will has been lost, stolen or destroyed, a person who has possession or control of a copy must allow an entitled person to inspect it or provide a certified copy upon payment of the reasonable associated expense.
This can be particularly important where there is uncertainty about which will was the deceased’s final will, whether a later will was validly made, or why a person’s entitlement changed.
The practical process I recommend
When I am instructed to help a family member obtain a will, the first step is usually to identify who may hold it.
I will ordinarily ask whether the deceased:
- had a regular solicitor;
- used an accountant or financial adviser;
- had dealings with the Public Trustee of Queensland;
- kept important documents in a safe, filing cabinet or safe-deposit box;
- told family members who had been appointed as executor;
- had previously made another will; or
- had already commenced an application for probate.
Once the likely holder has been identified, a formal written request can be made under section 33Z.
The request should generally:
- identify the deceased by their full name and date of death;
- identify the person making the request;
- explain why that person is an “entitled person”;
- refer expressly to section 33Z;
- request inspection, a certified copy, or both;
- include evidence of the death, if required;
- include evidence of the applicant’s identity and relationship to the deceased; and
- offer to pay the reasonable expense of obtaining the certified copy.
A clear and properly supported request will often resolve the issue without the need for court proceedings.
What if nobody knows where the will is?
If the will cannot immediately be located, searches may need to be conducted with:
- the deceased’s former solicitors;
- the Public Trustee of Queensland;
- banks and other institutions used by the deceased;
- the deceased’s accountant or financial adviser;
- family members and close friends;
- organisations offering will-search services; and
- the Queensland Courts’ wills and estates records.
If an application for probate or letters of administration with the will has been filed, the will becomes part of the Supreme Court record. The Queensland Courts’ online service can be searched for relevant grant applications and filed wills.
However, the absence of a court record does not necessarily mean that no will exists. A grant of probate is not required for every estate, and an executor may not yet have commenced the application.
What happens if the executor or another person refuses?
A person holding the will cannot simply refuse access because they do not want a family member to know what it says.
If the applicant falls within one of the categories in section 33Z, the holder is under a statutory obligation to permit inspection or provide a certified copy when properly requested.
If access is refused, a solicitor can send a formal letter identifying the applicant’s entitlement and requiring compliance. If the refusal continues, it may be necessary to seek relief from the Supreme Court.
Section 33Z also expressly provides that a person who has possession or control of a will or a copy must produce it if required by the Court.
Court proceedings should not usually be the first step. A carefully prepared request will often be enough. However, an unexplained refusal, delay or attempt to conceal a testamentary document should be treated seriously—particularly where there is a risk that the estate may be distributed.
Obtaining the will is only the beginning
Receiving the will does not automatically establish that it is valid or that the estate has been properly administered.
Once the document is obtained, it may be necessary to consider:
- whether it was properly signed and witnessed;
- whether the deceased had testamentary capacity;
- whether the deceased understood and approved its contents;
- whether there was undue influence, fraud or suspicious conduct;
- whether a later will or informal testamentary document exists;
- whether marriage, divorce or the end of a de facto relationship affected the will;
- whether the executor is administering the estate properly; and
- whether an eligible person has grounds to seek further provision from the estate.
These questions are particularly important where the will differs significantly from earlier wills, excludes a close family member without explanation, or was made while the deceased was elderly, seriously ill or dependent upon another person.
Do not delay in obtaining advice
Estate claims are subject to time limits. Waiting for an executor or another family member to disclose the will can place a potential claim at risk.
If you believe you may have been excluded from a will, inadequately provided for, or affected by a questionable testamentary document, you should obtain legal advice promptly. Accessing the will is often the first essential step in determining what rights and options are available.
Final thoughts
From my experience as a solicitor, disagreements about access to a will often arise at an already difficult and emotional time. Fortunately, Queensland law provides a clear mechanism for eligible family members and other entitled persons to obtain the information they need.
Section 33Z of the Succession Act 1981 (Qld) recognises that, following a person’s death, a will cannot always remain confidential in the hands of the executor, solicitor or another family member. If you are an entitled person, you may have a statutory right to inspect the will and obtain a certified copy.
Where the location of the will is unknown, your request has been refused, or the document raises concerns about the circumstances in which it was made, early legal advice can help protect your position and prevent the estate from being distributed before those concerns are properly investigated.
Dane Thornburgh is a solicitor practising in wills and estate litigation in Queensland. This article contains general information only and is not a substitute for legal advice concerning your particular circumstances.