Locating and accessing a will

Posted on Jun 26, 2019 by Liam Tobin   |   Categories: Wills & Estates

Hopefully you caught my chat with the lovely people at Newcastle Hunter Mummas on their podcast about why it is important to put together a last will and testament.

For a will to be effective after preparation, it must be kept safe in a place able to be located once the willmaker passes away.

Where to store a Will

There is no public registry of wills in NSW, although there are a number of private providers offering will registration facilities. The NSW Trustee & Guardian offers a secure storage service for wills, power of attorney and enduring guardianship documents. A member of the public may make an enquiry to determine whether the NSW Trustee & Guardian holds the will of a deceased person.

While the Registrar of Probate in the Supreme Court of NSW has a facility for lodgement of a will in the testator’s lifetime, this is rarely used.

From 2002 until 28 March 2014 the NSW Registry of Births Deaths and Marriages operated a Wills Register, however this service is no longer in operation.

As it is not uncommon for a person to update their will via a codicil adding to or amending part of the document, or a new will that completely revokes the previous document, the problem with will registration is that it offers no certainty of proof that the document registered is actually the most recent document.

For this reason, it is recommended not to have wills made at various times and stored with different firms or organisations. When making a new will with your solicitor, a person ought to have any previous documents transferred to the solicitor who made the new will so that all of the documents may be stored together for safe keeping.

Inspecting the will of a deceased person

A will is a private document, with limits on who is able to obtain a copy of the document following the death of the willmaker.

Section 54 of the Succession Act 2006 (NSW) provides that the person, who has possession or control of the Will of a deceased person must allow certain people to inspect it, or be given copies of it, at the expense of the requesting person.

The people who are entitled to view and/or obtain a copy of the Will under s 54 are:

• a person named in the latest will;
• a person named as a beneficiary in an earlier will;
• the surviving spouse, de facto or issue (child, grandchild etc) of the deceased person;
• a parent or guardian of the deceased person;
• a person who would be entitled under intestacy (if the deceased person had no Will);
• any parent or guardian of a minor named in the will or entitled under intestacy;
• any person (including a creditor) who may have a claim against the estate of the deceased;
• the manager of the person’s estate immediately prior to their death, appointed under the NSW Trustee and Guardian Act 2009 (NSW); and
• any attorney under an enduring power of attorney made by the deceased person.
The Probate and Administration Act 1898 (NSW) provides that the Will of the deceased, once admitted to probate, is a public document and that anybody is entitled to apply for a copy of it from the Supreme Court of NSW, provided that they pay the relevant fee. The Court does advise that It is generally best however, to contact the person in possession of the document for a copy, before approaching the Court.

No Access to person granted Power of Attorney

A Power of attorney is a very useful document which allows decision making for property rights, but does not provide the same powers for personal rights such as access to the last will and testament of a living person, which is considered a private document.

Without the authority of the willmaker, a solicitor is not at liberty to provide the attorney with a copy of the will of a living person.

However, under section 22 of the Powers of Attorney Act 2003 (NSW) a person who is named as a beneficiary of a specific item which is sold, mortgaged, charged or disposed of by a person as an Attorney has the same interest in any surplus money or other property of the Estate as if no sale, mortgage, charge, disposition or dealing had been made. It is therefore prudent to alert the Attorney if they intend to deal with the principal’s property, the subject of a specific gift in the principal’s will.

In NSW the only person entitled as of right to view the will of a living, incapable person is the NSW Trustee and Guardian.

We recommend that the original will be stored in safe custody with the willmaker’s solicitor, with documentation kept with the willmaker’s personal papers confirming the location of the original document.

For further advice on accessing, storing or preparing a will, please contact Baker Love Lawyers.