Who can get a copy of your Will in Victoria?

Understanding your rights before and after someone passes away

One of the most common questions we’re asked as Wills & Estate Lawyers in Victoria is: “Am I allowed to see a Will?”

The answer depends on whether the person who made the Will (the Will-maker) is still alive or has passed away. The rules are very different depending on that key detail.

Let’s break it down:

Before the Will-maker dies

A Will is a private document if the person who made it is still alive. This means that:

• Only the Will-maker has the right to access it or share it.
• There is no legal obligation for the Will-maker to give anyone else, even family, children, spouses, or beneficiaries a copy of the Will while they are alive.
• The Will can be changed or replaced at any time, provided the Will-maker has decision making capacity.

Some people choose to share their Will with loved ones or their appointed executor for transparency, but this is entirely up to them. Others keep it completely confidential.

If you’re wondering whether you can ask for or demand a copy of someone’s Will while they’re still alive, the simple answer is: no, not unless they choose to give it to you.

What if the Will-maker has lost capacity but is still alive?

This is a situation that causes a lot of confusion. If the Will-maker has lost decision making capacity (due to dementia, illness, or accident), they can no longer update or revoke their Will but the Will still exists and remains private.

Here’s what you need to know:

• The Will does not become accessible just because the person has lost capacity.
• Even if you are their Attorney under an Enduring Power of Attorney, you do not automatically have a right to view the Will, unless:
  • You have a specific authority to access the Will as part of managing their legal affairs; or
  • You are acting on legal advice in a situation where access is required to carry out your Attorney duties (e.g. for estate planning, or where litigation is involved).

If you’re concerned the Will may be outdated or problematic, the most appropriate course of action is to seek legal advice about your role and responsibilities, especially if you are an Attorney under an Enduring Power of Attorney.

It’s also worth noting:

• No one can change the Will on behalf of a person who has lost capacity (unless through a rare legal process called a statutory Will, which must be approved by the court).
• This is why it’s so important to update estate planning documents before capacity is lost.
  
  

What about after the Will-maker dies?

Once the Will-maker passes away, access to the Will is governed by law and the rules become more generous.

If probate is required, and the executor applies for probate in Victoria, the Will becomes a public document once probate is granted. However, even before probate, certain people have the right to request a copy.

Under section 50 of the Wills Act 1997 (Vic), the following people are entitled to inspect or obtain a copy of the Will:

• Anyone named or referred to in the current or any earlier Will
• A spouse or domestic partner (current or former)
• Any parent, guardian, or child of the deceased
• Any person who would be entitled to inherit if there were no Will (under intestacy rules)
• Any person who has a claim against the estate (e.g. family provision claimants)
• The executor or administrator of the estate
• Anyone who had care of the deceased
• A person with legal control of the deceased’s assets or Will before death
• An Attorney under Enduring Power of Attorney, if they acted while the will-maker was alive
  
  

How to search probate records in Victoria

Once probate is granted by the Supreme Court of Victoria, the Will and the grant of probate become public records.

Here’s how you can access them:

1. Visit the Supreme Court Probate Online Search
2. Search using the full name of the deceased
3. If a grant of probate has been issued, you can order a copy of the Will and supporting documents (fees apply)
   
   

Final thoughts

Understanding when and how you can access a Will can be complex, especially when emotions are running high or legal responsibilities are involved. If someone close to you has lost capacity or passed away, and you believe you need access to their Will, it’s wise to seek legal guidance.

At OFRM Lawyers, we can help you:

• Understand your rights
• Apply for access to a Will under the Wills Act
• Navigate the probate process
• Deal with capacity and attorney responsibilities