What is a Will?
A valid Will is typically a written document which is signed by the testator (the person who is making the Will) and 2 independent witnesses. The Will should name an executor or legal personal representative to manage the testator’s affairs after their death and dispose of assets to chosen beneficiaries.
Questions often arise about when the Will takes effect and who can gain access to it. This is a common question asked by not only testators, but also executors, beneficiaries or people that think they may be beneficiaries.
When does a Will take effect?
A Will only becomes operative after a testator’s death. Up until death occurs there is a chance the Will could be updated, amended or revoked by the testator. For this reason, a Will is not considered to be ‘effective’ until some evidence of death, usually a death certificate, is able to be produced.
In every instance where a testator has died the last valid Will needs to be identified. Only the last valid Will can operate unless there are other issues like partial revocation or revival of a prior Will. Prior Wills are ordinarily ineffective as they are usually revoked by the last valid Will.
A Will that is found to be invalid because it has not been signed and witnessed correctly or because the testator did not know or approve of the contents will not be considered effective. In these circumstances, the last valid Will may be found to be the testator’s penultimate (or second last) Will. The process of examining and proving these matters is known as Probate.
Who can access a Will?
Because a Will can be amended or revoked up to the testator’s date of death, and because it is only ‘effective’ after death, only the testator can access a Will if they are alive and it is held by a solicitor. A solicitor is bound by principles of privilege and confidentiality which means they cannot release a client’s documents to anyone unless they have that client’s authority to do so. Even if a person is named as an executor or a beneficiary in a Will, a copy cannot be released to them absent specific authority from the testator.
After a testator has died, the persons able to inspect a copy of a Will changes. After death, the persons entitled to inspect part of a Will, a revoked Will and a copy of a Will includes:
- any person named or referred to in the Will, whether as a beneficiary or not,
- any person named or referred to in an earlier Will as a beneficiary of the deceased person,
- the surviving spouse, de facto partner (whether of the same or the opposite sex) or a child of the deceased person,
- a parent or guardian of the deceased person,
- any person who would be entitled to a share of the estate of the deceased person if the deceased person 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 of the testator if the testator had died intestate,
- any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
- any person committed with the management of the deceased person’s estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person,
- any attorney under an enduring power of attorney made by the deceased person,
- any person belonging to a class of persons prescribed by the regulations.
It is important to note that before death, an attorney appointed under an enduring power of attorney cannot access a copy of a testator’s Will unless they have been granted that specific authority by the testator in the enduring guardian document. You can read more about appointing enduring attorneys in the context of an estate plan here.
Where do I store my Will?
Turner Freeman Lawyers operates and maintains a safe custody register for their clients without charge. This involves securing important documents like Wills by recording when documents are entered, accessed and released. By keeping an original Will with Turner Freeman, a record of the chain of custody of the document can be kept while at the same time ensuring that it cannot be tampered with, modified or destroyed without the testator’s knowledge. Originals and copies of Wills are not released to any person without authority. Evidence of death is also required before a Will is released to an executor.
Whilst we hold many Wills in safe custody, copies of Wills are often kept at home. Such copies should be kept secure if the details of the Will are not to be disclosed or the testator does not want the contents easily discovered. It is also advisable to avoid making notes or amendments to any copies of Wills that may be held at home. Amendments to copies of Wills can sometimes cause confusion after death.
Who can I tell about my Will?
It is entirely up to the testator to decide who they tell about their Will and what their testamentary wishes may be. Some people elect to say nothing about their Wills, others prefer to discuss their wishes with their family and friends. Testators should be cautious and aware, however, that misleading people or inducing people to take certain actions on the promise of leaving them something in the Will can have consequences for the estate. Legal claims such as promissory estoppel can arise if promises are made but are not kept.
We often advise testators that it is a good idea to tell their executors their last valid Will is held with Turner Freeman as this can save time and stress searching for Wills after the testator’s death. This does not mean the content of the Will needs to be discussed.
If you would like further information about Wills and estate planning, Turner Freeman have experienced specialist lawyers who can assist you. Call 13 43 63 for further details.