Who can look at my Will?
We are often approached by people asking for a copy of another person’s Will. This can happen both during the other person’s lifetime and after they have passed away. Most of the time it is because the person who made the Will has lost capacity for a reason such as dementia; or because the person who made the Will is terminally ill and their families want to make sure that their affairs are in order. Sometimes however; the request can come simply out of curiosity.
So who is legally entitled to see a copy of another person’s will in Queensland?
While the person is still alive
Generally speaking, in Queensland only the person who made the will (the testator) is entitled to a copy of the will while the testator is still alive.
There are some exceptions to this general rule. For example, the testator (provided they have capacity) may authorise a copy of the will to be released to a third party or provide a copy of the will to another person themselves.
In some cases where the testator has lost capacity, the testator’s attorneys nominated under an Enduring Power of Attorney may be provided with a copy or a partial copy of the will to enable them to deal with the testator’s Estate in accordance with the testator’s wishes. An example of this would be if the testator was moving into a nursing home and a decision had to be made as to what to do with the testator’s household effects etc.
However, an Enduring Power of Attorney is not entitled to receive the original will on behalf of the testator.
After the person has died
After the testator has passed away, the nominated executor(s) of the Will may obtain a copy or the original will; provided that they are able to provide proof of death (such as the death certificate) as well as photographic identification.
Section 33Z of the Succession Act 1981 (QLD) also states that certain people are eligible to receive a copy of the will. This includes the deceased’s parent, spouse, child and beneficiary. In those circumstances ID must be provided for verification as well as the death certificate of the person.
Effect of Marriage and/or Divorce
Something else to consider is the effect of marriage and divorce on a person’s will.
If the person has made a will; then later marries, marriage generally revokes the will. This means that if that person dies without making a new will, their estate would be dealt with under the laws of intestacy. In Queensland there is a slight exception to this; being that if the person had appointed their spouse as an executor; or left anything to their spouse in the will; then the appointment and gift will remain valid. However, the rest of the will would be deemed to be revoked and some of the person’s wishes may not be followed in the event of their death.
If the person has made a will during their marriage and appointed their spouse as executor and/or made gifts to their spouse in the will; then the effect of divorce on the will is to treat the former spouse as if they died before the testator. The rest of the will would remain valid; but any appointment or gift to their former spouse would be invalid. Again, in Queensland, there is a slight exception to this rule. In Queensland divorce will not affect an appointment of a former spouse as trustee of a trust to benefit people including the former spouse’s children.
Finally, separation does not render any provisions in a will void. This means that, if a person separates but remain married, their will would still take effect as though the person and their spouse were still together.
This is why we strongly recommend that you review your will with every major life event; including marriage, the birth of children, separation, divorce, and the purchase and sale of any real property.
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