Do you need to get a copy of a will?

There is no automatic right to get a will in Western Australia.

If someone dies and you are not sure whether you are a beneficiary of the will or not, how then do you get a copy of the will?

This situation might arise, for example, if you were an (adult) child of the deceased and want to know if you have been left anything in the will. If you have not, then you may wish to bring an application under the Family Provision Act.

In other States there are specific provisions that make it an obligation of the executor of the will to provide a copy of the will to persons who would usually be expected to be a beneficiary under the will.

In Western Australia, the usual practice is to write to the executor and request a copy. Properly advised, the executor should make a copy available to a person who would normally be expected to be a beneficiary under the will.

However, if there is no response (or no proper response) then one possibility is to lodge a caveat at the probate office to prevent an application for probate being made (if you are contemplating this step, you should seek legal advice and do it as soon as possible after someone dies).

This situation arose in the case of Chapman v Garrigan [2017] WASC 336.

In that case, the court said:

This is one of those areas where practitioners should exercise common sense. It is difficult to envisage any circumstance where it would be inappropriate for a party who may have an interest in an estate to be denied a copy of the will. Even if a potential beneficiary were to object to that course of action the named executor would be justified in providing a copy of the will upon request. Of course discretion would apply. A party who does not have and could not conceivably have any interest in the estate should not have access to the will. But otherwise the administration of estates would run more smoothly if access was provided as a rule rather than as an exception to some assumed rule.”.

In that case, the executor refused to give a copy of the will to a person who was an adult son of the deceased person. The son expected to be a beneficiary of the will, whereas in fact he had been left out of it altogether. Through his solicitors he lodged a caveat against probate being granted. The executor made an application for proof of the will in solemn form (which means that he initiated legal proceedings to have the will admitted to probate). That application was not opposed by the son (who could then get a copy of the will through the probate registry). The executor sought an order that the son pay its legal costs to have the caveat removed. The court declined to make that order on the basis that a copy of the will should have properly been made available to the son in the first place.

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