When a loved one passes away, it is very common for people to feel awkward about asking the other members of their family if they were left anything in the deceased’s will. The emotional gravity of someone close passing makes concerns about inheritance appear almost trivial and accordingly it is a difficult subject to approach with someone who is grieving. However, given a will is a written embodiment of a person’s last wishes, administering their estate is a crucially important process and questions about their desires for their property should arguably not be so taboo.
Will I Be Told About the Will?
It is the responsibility of the executor of a deceased estate to determine whether the deceased left a will, and if so, to inform the beneficiaries which are named. They must also inform each of the beneficiaries what they stand to inherit under the will.
Can I Request to See the Will?
Pursuant to section 54 of the Succession Act 2006 (NSW), a person with possession of a will must allow any of the following to inspect or be given a copy of the will:
A person referred to within it or are the parent/guardian of a minor referred to;
a beneficiary;
a beneficiary in a previous will;
the surviving spouse or de facto partner of the deceased;
a parent/guardian of the deceased;
a person who would be entitled to a share of the estate if the deceased had died intestate, or their parent if they are a minor;
any person who may have a claim against the estate;
any person committed with the management of the deceased’s estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased;
any attorney under an enduring power of attorney made by the deceased; or
any person belonging to a class of persons prescribed by the regulations.
Before probate is granted, a request to inspect the will should be directed to the executor or their legal representative. There may be a cost associated with receiving a copy.
Once probate has been granted, the will is in the public record and anyone may pay the fee and request to see it.
Can I Challenge the Will?
In New South Wales you, are generally able to contest a will until 12 months after the date of death. There are broadly two different types of challenges. Those which dispute the validity of the will, for example the accused lacked testamentary capacity, the formal requirements were not complied with, the will is a forgery, or undue influence overbore the will of the testator, and those which accept the will’s validity but wish to challenge its terms, for example a family provision claim.
If you think there are grounds to challenge a will, you should seek legal advice as soon as possible. Once an estate has started to be distributed, which often happens before the expiry of the 12-month period, bringing a challenge is much more difficult. Further, the rules which apply as to who can bring a challenge, when they can do so and what they must prove to be successful vary depending on what type of challenge is brought.
Will I Know if Someone Else is Challenging the Will?
If you are a beneficiary under a will and it is contested, you must be notified. This is because if successful it will change how the estate is distributed and this may impact on the shares allocated to the beneficiaries.
When Will I Receive My Inheritance?
Even in very simple cases the disposition of an estate will likely take more than 6 months. However, as a rule of thumb, if there is no challenge, delay in selling assets, or tax issues, you should receive your inheritance within a year.
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