There is no simple answer to this question. There is no single repository of Wills, and a Will does not need to have been registered.
It is customary practice for original Wills to be kept by individuals in their safe storage or by lawyers who prepared the Will. A good start would be to look among the deceased’s personal papers for the Will, search for the deceased’s emails for information or contact any lawyers the deceased had any contact with and ask them if they hold the original Will.
If these steps do not work, a lawyer can be engaged to send correspondences to other lawyers asking if they hold the original Will for the deceased.
Before the death of a person, you are not entitled to see a copy of a Will and a Willmaker is not obliged to show you his/her/their Will even if you are a person named as executor or beneficiary in the Will.
According to section 50 of the Wills Act 1997, once the Willmaker has died, you may be entitled to view or inspect the deceased’s Will if you are:
- Any person named or referred to in the Will, whether as beneficiary or not;
- Any person named or referred to in any earlier Will as a beneficiary;
- Any spouse of the deceased at the date of the deceased’s death;
- Any domestic partner of the deceased;
- Any parent, guardian or children of the deceased;
- Any person who would be entitled to a share of the estate if the deceased had died intestate;
- Any parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate if the deceased had died intestate;
- Any creditor or other person who has a claim at law or in equity against the estate of the deceased and who produces evidences of that claim.
This part of the legislation enhances accountability for executors by ensuring all potential beneficiaries know of their entitlement, and to seek legal advice early about the effects of the deceased’s Will. If you fall under the above categories, you can contact the executor of the estate, or the lawyers acting for the estate and request a copy of the Will.
If after all searches and no Will can be identified, a process of intestacy will be followed. This process involves distribution of the deceased’s estate in accordance with a pre-determined formula and allocations according to the intestacy laws.
How Can Nevett Ford Assist You?
Our deceased estates team can assist:
- An executor: we can advise of your responsibilities and obligations as executor;
- A beneficiary: whether you are named in the Will or not, we can provide advice on your options and entitlements
Our deceased estate team can also assist you with any intestacy queries.
For further information on deceased estates, please see visit HERE. You can also contact us on 03 9614 7111 or email at melbourne@nevettford.com.au.