What Happens During the Will Reading?

The reading of a will is where a person (usually the solicitor who holds the original copy of the will) invites the deceased’s next of kin, close family members, and the beneficiaries to the solicitor’s office for the purpose of reading the will aloud to inform those present what they are entitled to from the estate. Copies of the will may also be provided to the beneficiaries named in the will. 

A will reading only occurs after a person dies. 

In reality – what usually occurs – is that once a person dies, the family members will contact the deceased’s last known solicitor and inform them that the deceased has died. The solicitor will then search their safe storage records to see whether they hold an original will for the deceased. If they hold an original will, the solicitor will contact the named executor and let them know that they hold the original will. 

Unless the will had been previously released to the family and/or beneficiaries, the will reading may be where a person first learns of the extent of their entitlement to the deceased estate.

Who Can See or Obtain a Copy of the Will?

Whether a person is entitled to a copy of the will depends on what state of Australia the deceased resided in, the terms of the will, and the person’s relation to the deceased. 

For example, for New South Wales (NSW) based estates, section 54 of the Succession Act 2006 (NSW) states that a person who is in possession of a will (which includes prior wills and informal wills) must allow the following people to inspect the will (or must provide a copy at the requestor’s 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 an earlier will as a beneficiary of the deceased person,

(c)  the surviving spouse, de facto partner or issue of the deceased person;

(d)  a parent or guardian of the deceased person,

(e)  any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate,

(f)  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,

(g)  any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,

(h)  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,

(i)  any attorney under an enduring power of attorney made by the deceased person,

(j) any person belonging to a class of persons prescribed by the regulations.

If a person listed above wants to obtain a copy of a will, they should contact the executor or their lawyer to request a copy. Alternatively, they could contact a solicitor who will be able to request a copy on their behalf. The person requesting a copy may need to provide evidence of how they satisfy one or more of the above criteria. 

If a person with possession or control of a will refuses to release a copy to a person who satisfies one or more of the above criteria or a beneficiary of the estate, only provides an outline, or refuses the production of a copy, the person seeking a copy of the will can apply to the court to receive a copy by having the document produced to the court or the person who is withholding the will examined in open court. 

Rights of Beneficiaries to the Deceased Will in NSW

A person who is named as a beneficiary has a right to a copy of the will. 

If an executor refuses to release a copy, they may be acting unlawfully. 

It is also worth noting that once probate has been granted, a will becomes a public document. Therefore, any person can obtain a copy of the will from the court after probate. 

Executor Organising the Will Reading

Will readings are not mandatory in Australia – in fact, they are rare. 

If a will reading is offered, it is usually organised by the solicitor who prepared the will for the deceased and who holds the original will in their safe storage.  

Notifying Beneficiaries and Interested Parties

Where a will reading is planned, the executor or their lawyer will usually write to family members and beneficiaries and give them the option to attend the will reading, either in person or by phone. 

Obtaining Probate Before Administering the Estate

Before an executor can administer the estate, they may need to apply for probate. 

Determine If Probate is Required

Probate is not required in all cases.

Whether probate is required generally depends on the size and nature of the estate.

Probate may be required where the deceased owned property, where the deceased held money in a bank account that exceeded the particular bank’s threshold for release without a grant of probate, where an eligible person may contest the will (i.e. family provision claims), or where the executor is seeking protections from personal liability under the relevant legislation.

Probate may not be required where the deceased died owning property as Joint Tenants, small amounts of money in a bank account, and personal possessions.

If an executor has any doubt as to whether probate is required, they should contact a probate lawyer for advice. 

Gather Necessary Documents for the Probate Application

To apply for probate, the executor (or their solicitor) will usually require the following information:

1. the original will;
2. the original Death Certificate or Certified Copy;
3. the location and estimated value of all assets; and 
4. the location and estimated value of all liabilities.

There may be other documentation required depending on the circumstances. 

Complete the Probate Application Form

The executor’s solicitor will also prepare the following documents: 

1. Summons for probate
2. Affidavit of executor. 

File the Probate Application with the NSW Supreme Court

Once all documents have been finalised, the executor may apply to the Supreme Court of NSW for a grant of probate by lodging the documents with the Probate Registry and paying the prescribed fee, which in NSW is calculated on the value of the estate. 

An application for probate is usually made to the Supreme Court of the relevant state or territory. 

Wait for the Grant of Probate to be Issued

If the court has any further questions, it may issue a ‘requisition’ in relation to the application. A ‘requisition’ is a request from the court for further information or documentation, which must be addressed before the application can progress further. 

If the application is complete and is accepted by the court, the court will grant probate and notify the applicant that a grant has issued. 

Proceed with Administering the Estate After Probate is Granted

Once probate has been granted, estate administration can commence. 

The process of administering the estate usually involves collecting the estate assets; paying debts and liabilities (including the deceased’s expenses, estate expenses, and testamentary expenses); resolving claims against the estate; lodging tax returns and paying any income tax liability; and distributing the estate according to the terms of the will. 

In NSW, the person who is appointed administrator of the estate (being the executor or the administrator under a grant of Letters of Administration) must comply with their duties fully under the various legislation, including the Succession Act 2006 (NSW), the Probate and Administration Act 1898 (NSW), and the Trustee Act 1925 (NSW), or they risk being held personally liable for any losses suffered by the estate or the beneficiaries. 

How Empower Wills and Estate Lawyers Can Help You

If someone you know has recently died and you would like to obtain a copy of their will, or you have been named executor and trustee and need help to apply for probate, contact us at Empower Wills and Estate Lawyers on 1300 414 844 to speak with one of our expert probate lawyers. 

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Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.