Executor of Will Refusing to Let Beneficiary See the Will?

[franklyspeaking]

My father has died and I am a beneficiary of the will.

Two questions:

1) sister is the executor of will and will not show me the Will. What do I do? Do I have a right to see the will prior to Probate?

2) I was bequeathed some shares which were all sold whilst my father was alive. There is some cash left. Can I ask to have cash given the shares were sold?

 

[Victoria S]

Hi Franklyspeaking,

(1) Yes, beneficiaries have a right to view or obtain a copy of the will if they formally request it. The executor must acknowledge such a request and send the beneficiary a copy of the will. You may be liable however for any expenses related to producing and sending the copy. I don't know what state you are in so can't give you the precise section of the act in your state but its s54 of the NSW Succession Act under "Persons entitled to inspect will". So write a formal request for a copy of the will quoting the relevant section. If she refuses you can take her to court to force her to provide it.

(2) No. Where a specific gift is made and that gift fails because it no longer exists you cannot be reimbursed with funds or other property. It will depend on how the will is worded, for example if it states "all of my shares in X company" and the deceased has no shares in X company then the gift fails. However, if the will were to state "$5000 worth of shares" and there are shares available - then the gift can be given with any shares in the estate.

Where a gift fails you do not get reimbursement in another form. If a will maker specifically gifts an asset that is sold before the date of death that gift is said to have ‘adeemed’. Ademption means the gift fails because the specific gift is not owned by the deceased at the time of death. Sometimes gifts will be made with substitution written in - so that if the one gift fails the gift is to be taken from somewhere else, but unless specifically stated in the will, there is no substitution.

 

[franklyspeaking]

My father has died and I am a beneficiary of the will. Two questions:

1) sister is executor and will not show me the Will. What do I do? Do I have a right to see the will prior to Probate

2) I was bequeathed some shares which were all sold whilst my father was alive. There is some cash left. Can I ask to have cash given the shares were sold.

Thanks so much for the very clear and prompt response. I am in NSW as it happens. I will try another question. I was specifically given the shares so it looks like it is adeemed. That said, there may well be nothing for me in the Will from my father. However, there is a house bequeathed to my sister (worth $500,000) and she gets most of the cash (about $300,000).

She has been looking after my father for about 30 years (she hasn't had a demanding job so had the time and has been his carer). She will not allow me any bits and pieces left in the house either but most of it is junk. I wanted it for sentimental reasons. Dad said I could share in it when he was alive but was extremely influenced by my sister.

Would I be in a position to (once I see the Will) contest this will? What I mean is that given I get nothing of a $800,000 estate would a contest of the Will be feasible?

I am estranged from my sister who has gluttonly ensured she gets most of anything our parents had.

 

[franklyspeaking]

Two more questions about Wills:

It is clear that I am entitled to see the Will of my father.

Can I also ask to see the Assets & Liabilities - in other words can I ask how much is in the Estate or whatever the terms is called. If not, once I see the Will how can I know how much there is for distribution?

 

[Sophea]

Hi @franklyspeaking ,

As you are already aware, as a child of the deceased and as a beneficiary you have a right to see or obtain a copy of the will upon formal request. If you are only entitled to a specific gift or gifts or money under the Will, you are generally not entitled to receive full details of the estate. However if you are entitled to a share of the balance of the estate or the residuary you are entitled to a full accounting of the estate funds, including details of all funds received and expended in the estate. If the executor fails to provide adequate information you can bring court proceedings against him or her.

 

[ClareB]

Hi @franklyspeaking,

Further to the above, as a child of the deceased, pursuant to section 57 of the Succession Act 2006 (NSW), you are eligible to make a family provision claim to the Court. This claim is generally made when a loved one feels that they were insufficiently provided for in the Will.

In determining its order, the Court will consider your circumstances, including your relationship with your father and also your current financial position and whether you are in need of further provision from the estate for 'proper maintenance, education or advancement in life'.

There are time limits to make a family provision claim from the deceased's date of death.

I hope that the above provides some clarity however, to ensure you are made fully aware of your options and entitlements, I suggest that you seek legal advice as soon as possible.