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NSW Access to Will Only When Death Certificate is Available?

Discussion in 'Wills and Estate Planning Law Forum' started by sam xenon, 18 January 2016.

  1. sam xenon

    sam xenon Active Member

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    A next of kin family member died and is now a coroner's matter. I asked the solicitor who has represented this person in life for a copy of the will. He said no because he hasn't got a death certificate yet. Is this reasonable? How soon should I get access to the will? The coroner could take months.
     
  2. Therese

    Therese Well-Known Member

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    Hi Sam,

    under s54(2) of the Succession Act 2006 NSW a person who has control of a will of a deceased person must allow any of the following persons to inspect or be given a copy of the will:

    (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 (whether of the same or the opposite sex) 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.

    see: SUCCESSION ACT 2006 - SECT 54Persons entitled to inspect will of deceased person.

    If you fit into any of these categories then you are entitled to a copy of the will.

    A solicitor may want evidence that the person is really deceased - if a death certificate is not possible then even the death advertisement in the newspaper should be enough.

    If the solicitor only will accept a death certificate I would suggest getting legal advice. See Get Connected with the Right Lawyer for You.
     
  3. sam xenon

    sam xenon Active Member

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    The solicitor is apprehended of the death because he has invited neighbours in(???) to collect documents. I assume to get the original copy of the will; I assume that a death notice in a newspaper would require the support of a death certificate.
     
  4. Jacqui Brauman

    Jacqui Brauman Well-Known Member

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    If the death has gone to the coroner, then request an interim death certificate. It will be issued without a cause of death. This could help move things along.

    I can understand the solicitor not wanting to hand the Will over without a death certificate being provided, but if they are aware of the death then I don't know why they wouldn't provide a copy.
     

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