- September 4, 2018
- By Clare Kelly
- 0 comments
Can I see the Will?
One question which we are almost always asked when acting for beneficiaries of an estate (or those who believe they should have been beneficiaries) is ‘do I have a right to see the will?’ (They often also ask about when the will is going to be ‘read’, but this is generally only done on TV – normally for maximum dramatic effect!)
Prior to a Grant being issued, the will is the property of the executors who can decide whether or not a copy should be provided to other people. Unfortunately, often they will refuse to disclose it to those who are not beneficiaries – either because they feel that the person asking should not be allowed to see it (for example because they were not on good terms with the deceased), or they hope to gain some advantage in any future litigation by withholding information from the outset.
However, a will is a matter of public record as soon as the Grant of Probate is issued, and so there is little advantage to be gained by refusing to share the will earlier. Executors often fear that releasing the will is going to provoke a claim, but those who have genuine grounds for disputing the will’s validity are likely to challenge it anyway (and of course are entitled to see it as part of disclosure in any contentious probate proceedings).
In all Court proceedings, early disclosure of documents is encouraged, with a view to facilitating an early resolution of the claim. This forms a part of all of the pre-action protocols (including the ACTAPS Protocol), and Courts are unlikely to be sympathetic to executors who have caused the costs of a matter to be increased because of arguments over whether a will should be released.
It is also our experience that withholding a will tends to inflame the situation and lead people to wonder why it is being hidden. They may well assume that it contains much more than it does. It is often therefore in the executors’ best interests to release the will, so as to show the person asking for it that there is nothing to hide.