DOES AN EXECUTOR HAVE TO CONDUCT A “READING OF THE WILL”?
We have all seen the movies where in the opening scene a loved one will pass away in an odd, hilarious or tragic manner. After this incident the family members meet to be read the Will by either a lawyer or the executor of the estate. Usually this is when the family members find out what they, and others, have been given pursuant to the Will.
But does this actually need to happen?
I’m sure it doesn’t come as a surprise that, once again, Hollywood had lied to you.
If you are trusted as the executor of an estate you are responsible for first obtaining a grant of probate from the court. Then you have to take steps to realise the estate assets (such as shares, real estate and bank accounts), pay the estate debts and then distributing the remainder in accordance with the Will. You do not have to conduct a “reading of the Will”.
IF A “READING OF A WILL” IS NOT REQUIRE, THEN HOW DO YOU FIND OUT IF YOU ARE IN THE WILL?
You may be entitled to inspect a will if you are:
- The spouse, parent or child of the Will maker;
- A person mentioned in the Will, in a named or unnamed manner. This can occur regardless of whether you are going to benefit;
- A person mentioned in an earlier Will of the same estate;
- A person who may have been entitled to a share of the estate if the Will maker had died without a will;
- A person who would be eligible to apply to the Court for further provisions from the Will makers estates; or
- A creditor or other person who has a claim at law or in equity against the estate.
IF YOU ARE NOT NAMED IN THE WILL AND THINK YOU SHOULD BE
Feel like you have been unfairly left out of a Will? The Family Provision Act assists with “family provisions” when challenging a Will. Generally, the Act provides that where the Will maker does not make adequate provisions in their Will for the proper maintenance, education and advance in life for certain dependents then the Court has discretion to do so.
If you think this is you, you had better work quickly as the Family Provisions Act only allows applications to be made within 6 months of the court granting the executor probate of the Will.
This is a complex area of law and we would recommend you see an experienced practitioner. Here at Lynn & Brown we have a friendly and knowledgeable team that can provide you advice and assistance.
About the authors:
This article has been co-authored by Haley Graydon and Steven Brown at Lynn & Brown Lawyers. Haley is a law clerk and is in her final year of study at UWA. Haley has a keen interest in is family law and estates. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.