Confidentiality of a will during the testator’s lifetime

Confidentiality of a will during the testator’s lifetime

Where is a will held?

A will comes into effect after the death of the testator and so it must be kept in a secure location that is accessible after the testator’ death. The original will is commonly held by the solicitors who prepared the will but the testator may decide to hold the original will in his safe deposit box or with other important papers at home. NSW Trustee and Guardian may store an original will if they prepared the will. 

 

Must the testator reveal contents of his will?

The testator may discuss with his family members about the division of assets left under his will so that family members are not surprised, disappointed or distressed when they are advised after the testator’s death. Discussions about the reasons for entitlement under a will prior to death may also avoid challenges to the will and claims for family provision. 

 

It should be noted that a will can be revoked, most commonly by a later will. As such, in revealing the contents of a will this may create an expectation amongst potential beneficiaries about their entitlement to the deceased estate which can change subject to a later will. 

 

There is no legal obligation for the testator to reveal the contents of his will or to provide a copy of will to family members or beneficiaries prior to the testator’s death. 

 

It is prudent for the testator to inform the executor of his appointment under the will and the location of the original will for the purposes of administration of the estate after the testator’s death. A will may contain the testator’s wishes about the disposal of the body including funeral arrangements and so it is advisable for the testator to discuss these wishes with the executor prior to death as it may take some time to locate and obtain a copy of the will after death. 

 

Solicitors cannot release a will during the testator’s lifetime without authority

Solicitors cannot release a copy of the testator’s will during the testator’s lifetime without authority from the testator. Solicitors’ conduct rules state that a solicitor must not disclose any information which is confidential to a client. 

 

The will cannot be released to an attorney appointed under a Power of Attorney made by the testator principal, even if enduring, unless it is expressly stated in the Power of Attorney document. 

 

A testator who wishes to engage a new solicitor may need to sign an authority to release the original will and provide relevant identification documents as required by the law firm that holds the will.

 

A will can only be released during the lifetime of the testator without his consent in accordance with an order of the Court upon application or notice of the NSW Trustee and Guardian. 

 

If you have any will or deceased estate queries, contact our team on (02) 9307 8900 or at [email protected].

 

The blog published by Rostron Carlyle Rojas Lawyers is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the author. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult RCR on any legal queries concerning a specific situation.

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