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Your Will - who gets to see it?

October 19, 2016

Who is entitled to a copy of your Will?

Below is transcript of Gerard Houlihan’s interview with Aaron Stevens of 990 4RO from October 2016.

 

Gerard:

That’s a good question, Aaron. It is actually covered by legislation under the Succession Act and the Succession Act specifically states who are “entitled people” to get a copy of a Will.

 

I will just read those:

 

Obviously a person mentioned in the Will, whether they be as beneficiary or otherwise.

A person mentioned in an earlier Will of a deceased person could be entitled to the Will.

A spouse, parent or child of the testator, the testator being the person who made the Will, is entitled to a copy.

A person who is entitled to share in the estate of the deceased under what we call the Intestacy Rules, in other words had they died without a Will.

Even if there is a Will, if you are a person who would have been entitled to share if there had not been a Will, you are entitled to a copy of the Will.

4RO:

Okay.

 

Gerard:

Sounds strange, but that’s true. And the other category is a person who might be entitled to bring an application for more adequate provision out of the estate. That is restricted to spouses (including defacto spouses), children (including stepchildren), or dependants.

 

4RO:

Just on that, and something I’ve been interested in, who’s able to get a copy of the Will or to see the Will before the person has died?

 

Gerard:

Generally only the Will maker themselves. But from time to time, if they have lost capacity, an attorney may wish to have a look at the Will (that is the person appointed as Power of Attorney for the person without capacity) simply to make sure that they’re dealing with the estate and assets of the person who’s impaired in a way that is not inconsistent with the Will.

 

So, that’s the only two people who can: the Will maker themselves, or an attorney when that Will maker has lost capacity.

 

4RO:

Very interesting.

 

Another question we have got here, if two people who jointly own property die at the same time, for example in a car accident tragically, what happens to the property under their Wills?

 

Gerard:

We have discussed previously about how properties can be held as joint tenants or as tenants in common, and that’s important here because if they’re joint tenants on title, then on the death of the first one, the property automatically passes to the second with the survivor as we say.

 

Now, if they were both killed in a common accident at the same time and medical science couldn’t determine who died first, it is critical as you can see. And what the law says is that in that instance, the older is deemed to have died first, and the younger one died the day after.

 

4RO:

Really?

 

Gerard:

That is what the law says.

 

4RO:

Okay.

 

Gerard:

So in circumstances where they jointly held property as joint tenants, the older one would be deemed to have died first, therefore the property passes to the survivor, the survivor is the owner, and that property will then go in accordance with the younger one’s Will.

 

4RO:

Isn’t that interesting, that’s incredible. If we need advice in that area Gerard, what do we do?

 

Gerard:

Contact us at Rees R & Sydney Jones. We are at 55 Denham Street, or telephone 4927 6333.

 

4RO:

Always very interesting, thank you very much.

 

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