Will Access Rights
The client is the child of the deceased and one of several siblings. They are unsure of the existence of any will documents or the current status of the probate process regarding their mother's estate. The client wishes to review the will before probate is granted and is concerned about potential undue influence or fraud, indicating a willingness to legally challenge the will if necessary.
Questions about this case
These answers have been verified by a lawyer in the LEAP networkHow can I find out if I'm entitled to a copy of my mum's will before probate is granted?
In Victoria, you generally do not have the right to access a will before the testator (the person who made the will) passes away. A will is a private document until the testator dies. Once probate is granted, certain parties, such as beneficiaries and next of kin, are entitled to access the will. However, if you suspect undue influence or fraud, consult a solicitor who may assist you in obtaining relevant information about the will's contents.
What happens if someone challenges the validity of my mum's will?
If you challenge the validity of the will, the matter will likely proceed to a contested probate hearing in the Supreme Court of Victoria. The court will examine evidence to determine whether the will was made under undue influence, fraud, or if the testator lacked the mental capacity to create it. If the will is found invalid, the court may distribute the estate according to a previous valid will or, if none exists, under intestacy laws.
Could there be any legal ramifications if I access or distribute the will before probate?
Accessing or distributing a will before probate in Victoria can have legal ramifications. If you are not authorised, it could be considered a breach of privacy or even theft, especially if distributing it without permission. The executor named in the will is responsible for managing the estate and has the right to keep the will private until probate.
What should I do if I suspect there was undue influence or fraud involved in the creation of my mum's will?
If you suspect undue influence or fraud in the creation of the will, it is crucial to gather evidence that supports your suspicion. This might include unusual changes in the will, lack of mental capacity, or pressure from individuals who benefited from the will. Consult with a solicitor experienced in estate disputes for advice on the strength of your case and potential legal steps.
If my mum's will is not registered, how can I locate it?
If your mum's will is not registered, start by checking with any solicitors or law firms she may have used in the past, as they often retain copies of such documents. You could also search through her personal belongings where she might have stored important documents.
