14 Jun Who can see a Will in Victoria?
We often hear of solicitors refusing to let family members see a Will after a loved one has passed away. What do you do when polite requests fail?
The first step is to persuade them that you have a RIGHT to see the Will by alerting them to Section 50 of the Wills Act.
Who can see a Will in Victoria?
Section 50 of the (Victorian) Wills Act gives the following people the RIGHT to see the Will (and take a copy at their 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 any earlier will as a beneficiary;
(c) any spouse of the testator at the date of the testator’s death;
(d) any domestic partner of the testator;
(e) any parent, guardian or children of the deceased person;
(f) any person who would be entitled to a share of the estate if the deceased person had died without a will;
(g) 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 without a will; and
(h) any creditor or other person who has a claim at law or in equity against the estate of the deceased person and who produces evidence of that claim.
If requests to see a Will are not met:
Seek the assistance of a Wills and Estates Lawyer who will be able to liaise on your behalf with the Executor or the solicitor to obtain a copy of the Will for you.
If you find out you are a beneficiary of the Will
Once you receive a copy of the Will, you may find that you have been listed as a beneficiary in the Will. You will then usually be able to identify your interest in the Estate. If you are unable to work out what your entitlement is, due to the complexity or the sentence structure of the Will, you should immediately seek the assistance of a Wills and Estates Lawyer. Whether or not you are entitled to further information is often dictated by the nature and degree of your interest in the Will.
Identifying your entitlement in the Deceased Estate, then asking questions:
There is a difference between a beneficiary who is given a boat or a car and a beneficiary who is receiving the “residue” or “remainder” of the Estate.
A beneficiary receiving a boat or a car has a right to access information in relation to that specific asset only such as registration papers. They are not entitled to seek information in relation to the other assets in the Estate unless there are other circumstances at play.
However, a beneficiary receiving the residue or remainder of the Estate has broader rights in relation to the information they are entitled to. They can access information regarding the administration and overall management of the Estate in its entirety including all Estate documents. They are also entitled to a full accounting of the Estate as every transaction taking place affects the beneficiary’s interest in the Estate. In the event that such information is withheld from any beneficiary, they should consult with a Wills and Estates Lawyer who will then be able to provide them with legal advice as to how to obtain the information. Most of the time, you will be given the option of making an application to the Supreme Court to compel the Executor or their Lawyer to provide the relevant information. But if the Estates Lawyer makes the correct demand beforehand, there may be no need to go to court.
Executor’s general duties to the beneficiaries
Regardless of the type of interest/entitlement you hold in the Estate, Executors of the Estate have fiduciary duties to all beneficiaries in general. Fiduciary simply means a relationship of trust. As an Executor, he or she has been entrusted with the administration of the Estate for the benefit of the beneficiaries. The Executor must, therefore, carry out his tasks with loyalty and care to the beneficiaries.
Further rights of beneficiaries
As a beneficiary, you are also entitled to:
- Be informed of the expected date of distribution of your assets and any delays if the expected date cannot be met; and
- Be informed of any litigation or claims made against the Estate that may affect your entitlement under the Will.
If you would like to know more about probate -take advantage of our free half hour legal consults. They can be done in person or via Skype or telephone conference.
Call 03 8742 3199 or email firstname.lastname@example.org to make a booking and mentioning this article to claim your free booking.