What happens when one dies without a Will? This means a person has died ‘intestate’ and if the deceased held assets in NSW then Letters of Administration need to be applied for.
What Are Letters of Administration?
Letters of Administration is legal document issued by the Supreme Court that grants an individual or entity the authority to manage and distribute the estate of a deceased person who has not left a valid will. This document appoints an administrator to handle the deceased’s assets and liabilities according to the laws of intestacy in NSW.
When Are Letters of Administration Needed?
Letters of Administration are required when:
1. The Deceased Did Not Leave a Will: If a person dies intestate (without a will), there is no appointed executor to administer the estate.
2. The Will is Invalid: Sometimes, a will might be found to be invalid due to various reasons such as lack of testamentary capacity or improper execution.
3. The Executor Named in the Will is Unable or Unwilling to Act: If the named executor is unable or unwilling to fulfill their duties and a substitute executor has not been mentioned in the will a court may issue Letters of Administration to an appropriate person.
Intestacy Laws in NSW
If someone dies without a will in NSW, their estate is distributed according to the Act. The order of priority generally is:
1. Spouse or Domestic Partner: If there is a surviving spouse or domestic partner, they are usually entitled to the bulk of the estate.
2. Children: If there is no spouse, the estate is divided among the children. If a child has predeceased the deceased, their share may go to their own children.
3. Other Relatives: If there are no direct descendants, the estate may be distributed to other relatives such as parents, siblings, or more distant relatives.
The Application Process
1. Determine Eligibility: The applicant must be a person or entity who has a legitimate interest in the estate, such as a spouse, child, or creditor.
2. Gather Required Documents: Essential documents include;
3. File an application: The application is submitted to the Supreme Court of NSW. This involves completing the necessary forms and paying the applicable fees. These applications are quite detailed. One needs to prove they have standing to act and can show the court. This is where a solicitor can help you through the process various affidavits are required to be provided to the court showing that you have standing, proof that there is no will, if deceased has children and spouse from previous marriage need to work out statutory legacy for each beneficiary.
4. Provide Notice: Notice of the application must be given to potential beneficiaries and other interested parties. This ensures that anyone who might be affected by the administration of the estate is informed.
5. Court Review: The Supreme Court reviews the application. If satisfied that the applicant is suitable, the court will issue the Letters of Administration.
6. Administer the Estate: Once granted, the administrator can take control of the deceased’s assets, pay any debts, and distribute the remaining estate according to the laws of intestacy.
Responsibilities of an Administrator
An administrator is responsible for:
– Identifying and securing the deceased’s assets.
– Paying off any outstanding debts or liabilities.
– Filing necessary tax returns and handling other financial obligations.
– Distributing the remaining estate according to intestacy laws, which prioritize distribution to the spouse, children, or other relatives as outlined by legislation.
Navigating the process involves understanding both the legal requirements and the responsibilities of an administrator. For those facing this situation, seeking legal advice or assistance can be invaluable to ensure compliance with all legal obligations and proper handling of the estate.
Let the team at Chamberlains guide you through the process. We’re With You.
Whilst the digital age has introduced efficient mechanisms and innovative opportunities for businesses, it has also necessitated the expansion of traditional legal frameworks to address emerging issues relating to intellectual property, cyber security, data, privacy and mounting regulatory compliance requirements. Critically, as businesses continue to utilise digital advancements to alter the way they operate, they must also consider the added legal risks associated with these changes. This article seeks to address key legal considerations for businesses in the digital age and highlights how an experienced corporate and commercial lawyer can assist in this process.
The nature of corporate and commercial legal transactions has shifted in the digital age, prompted by the necessity for efficiency and accessibility. Digital tools such as contract management software, AI assisted technologies, remote meetings and electronic signing have all modernised the way commercial contractual transactions take place.
The Electronic Transactions Act 2000 (NSW) governs electronic transactions in NSW and provides a regulatory framework that facilitates the use of electronic transactions. This in turn has enabled businesses to efficiently engage in commercial interactions through online means.
When utilising these modernised methods, commercial lawyers will assist in ensuring digital compliance requirements relating to aspects of validity and capacity are achieved throughout the transaction.
The rate of digital change can make it difficult for businesses to remain up to date with the relevant regulatory compliance requirements. The result of failing to protect your business from the growing digital risks can be significant. It is important for businesses to carefully consider the following emerging issues in the digital age:
Protection of Intellectual Property
As data continues to grow in the digital realm, it is becoming increasingly important to ensure that your intellectual property (IP) is protected against potential infringement. IP rights are intangible and allow you to obtain exclusive rights to legally protect your ideas. These include patents, copyright, trademarks and registered designs. The complexities of the digital age necessitate businesses to engage with an experienced commercial and corporate lawyer to prepare a detailed IP strategy. Some ways to protect your IP include:
Onerous privacy obligations for businesses are becoming more relevant in the digital age whereby growing data breaches necessitate businesses to remain compliant. The Privacy Act 1988 (Privacy Act) regulates the collection, use, storage and disclosure of personal information. For example, if your business is captured under the Privacy Act you must notify individuals and OAIC of any data breaches likely to cause serious harm to the individual and have a valid Privacy Policy for collection of data in your organisation.
The Privacy Act has previously failed to address the growing concerns of the digital world. This has increasingly become more evident through recent large scale data breaches disclosing significant amounts of personal information. Recently, on 10 December 2024, the Privacy and Other Legislation Amendment Bill 2024 (Cth) received Royal Assent and amends provisions within the Privacy Act. The amendments form part of a long-standing wait to strengthen Australia’s privacy legislation and marks the beginning of further privacy reforms. Some of the amendments include further understanding on what constitutes an entities ‘reasonable steps to protect personal information’ to include ‘technical and organisational measures’ and greater transparency in relation to the use of automated decision making which comes into effect in December 2026.
Businesses must ensure they are aware of their obligations in the midst of expanding privacy law obligations.
It is also important that businesses have a data response plan in order to manage the risks for their business and clients and also to ensure that their team understand what is required to minimise and reduce the outcomes of data breaches.
In the digital age where privacy is a growing concern, this will ensure that risk is appropriately managed and businesses can avoid penalties for non-compliance and minimise outcomes of data breaches.
Online Fraud
The prevalence of online fraud will continue to strengthen as businesses utilise online mechanisms to transact. Coupled with the complexities of the online space and advanced fraud tactics, businesses must ensure they are both proactive and responsive in addressing these concerns. For example, from a legal perspective, as the digitilisation of commercial contracts continues to grow, it is important to ensure that legal capacity, identity and online access is appropriately addressed. This necessitates continued monitoring of your business and ensuring your staff are partaking in regular fraud-prevention training.
On 7 November 2024, the Scams Prevention Framework Bill 2024 was introduced into Parliament in order to implement a legislative framework to prevent and respond to scams. For regulated entities, there will be a requirement to take reasonable steps for the prevention, detection and disruption of scams. Such onerous obligations will ensure regulated entities are proactive in establishing preventative methods to avoid financial loss and maintain regulatory compliance.
The role of legal professionals in the digital age
Legal professionals are equipped with specialised knowledge which enables us to strategically advise businesses, both small and large, on the complexities of corporate and commercial law in the digital age. A careful analysis will enable lawyers to assess the vulnerabilities in business’s digital strategies and offer solutions with a practical benefit.
Corporate lawyers understand the obligations legislated in the Corporations Act 2001 and can assist businesses in structuring their organisations, understanding their responsibilities and providing contractual clarity. Proactive approaches are necessitated in the digital age in order to appropriately manage the growing risk concerns in tech-dominated industries.
As the complexities of the digital age can be overwhelming for businesses, we recommend businesses consider the following proactive strategies:
1. Stay-informed: the digital landscape is one which is ever-changing and demands keeping pace with changes to regulatory compliance considerations in order to avoid damage and penalties to your business.
2. Stay-protected: ensure that your intellectual property and your obligations in relation to the storage of personal information is protected. This involves creating strong security measures to mitigate risks of serious breaches.
3. Stay-updated: ensure your business remains current by keeping your privacy, data and associated policies up to date, provide all employees with regular training to mitigate the risk of unintentional disclosures and ensure that you frequently evaluate your business in the evolving landscape.
4. Stay – connected: connect with a lawyer in relation to navigating growing legal and regulatory frameworks through the early intervention of contracts, strategies and mitigation of risks.
Embracing the Digital Evolution
Whilst the digital age indicates no intention of slowing down, businesses need to remain alert to the emerging challenges to intellectual property, data, privacy and regulatory compliance. Digitalisation has not only shaped operational practices for businesses but also the way corporate and commercial transactions take place. It has become increasingly important for businesses to proactively and strategically plan for the future.
We encourage businesses to seek guidance from experienced commercial and corporate lawyers in order to confidentially navigate the complexities of the digital age.
This article outlines the services and benefits of working with family law firms in Sydney, including expert guidance on divorce, child custody, property settlements, and dispute resolution to help clients navigate complex legal challenges.
Family law issues can be emotionally challenging and legally complex, requiring expert guidance.
Family lawyers in Sydney provide the expertise and support needed to navigate legal challenges effectively.
A family breakdown in any capacity is an incredibly emotionally challenging and overwhelming time. The issues and disputes that arise during a family breakdown can be both trying and complex and therefore, require a sympathetic and informed legal counsel. Due to the highly contentious and emotional time that is a separation it is important that your family lawyer is supportive and compassionate towards your situation, as often the issues that arise during this time extend beyond the confines of the law. The family law team at Chamberlains can provide the necessary expertise and support to navigate the legal challenges that arise during a separation.
Family law practitioners have an obligation to ensure the best interests of the children are upheld during the course of all proceedings regarding parenting arrangements of children. A good practitioner will alleviate the stresses involved in organising a parenting arrangement post-separation by providing a professional representation of your interests. Family law practitioners will assist you in all the pre-trial procedures such as organising mediation and negotiating offers of settlement. Practitioners have an obligation to attempt to settle parenting disputes outside of Court where appropriate.
A family law practitioner should be instructed where parties would like to formalise a post-separation parenting arrangement. A practitioner need not be instructed only in situations of high conflict; they can be instructed in situations where there is an amicable separation where the parties wish to formalise any parenting agreement that was reached post separation. In situations of a high conflict separation, instructing a family lawyer may be prudent to avoid further hostility or endangerment to yourself or the children. Your safety and the children’s safety will always be a priority to a family law practitioner. It is important that you find legal representation with experience dealing with child custody cases and sensitivity to the unique circumstances of your separation. The family law team at Chamberlains embodies both experience in dealing with all kinds of child custody disputes whilst retaining a particular sensitivity to each individual case at hand.
The purpose of a property settlement between two people who were previously in a relationship is to sever the financial relationship between them. The legislation is designed to end the financial relationship of the parties in a manner that is just and equitable accounting for a multitude of factors like the future needs of the parties and the contributions of the parties to the relationship. Contributions are not always financial, and the Federal Circuit and Family Court of Australia (FCFCOA) recognises the contributions to a relationship in the capacity of a homemaker. The role of a family lawyer is to identify and clearly articulate the respective contributions to the relationship that you have made and the impact of any division of property on each party. The Court aims to achieve a financial severance where it is just and equitable to alter the legal and equitable interests in property to do so.
Parties have an obligation to provide one another full and frank financial disclosure to ensure a fair separation can be achieved. Full and frank financial disclosure is comprised of providing all relevant documentation that evidences the financial standing of both parties. The disclosure documents provided by both parties will inform the balance sheet drafted by your family lawyer to convey the financial standing of each party. This balance sheet, along with the disclosure documents, is weighed against contributions and future needs to reach a settlement.
The role of your family lawyer is to ensure full and frank financial disclosure is exchanged and to protect your interests when proposing a fair financial settlement. Should your matter proceed to litigation, your family lawyer should continue to support your legal and equitable interests in matrimonial assets and consider your contributions and future needs when proposing final orders.
Professional family lawyers in Sydney, such as those at Chamberlains, offer essential guidance and support during emotionally difficult family breakdowns. They provide expertise in handling parenting disputes, property settlements, and financial agreements, ensuring fair outcomes while prioritising safety and wellbeing. With experience in mediation, dispute resolution, and court representation, we tailor legal advice to individual needs.
Restraints are included in most contracts and exist to protect a business’s confidential information and interests, in an effort to remain competitive. These restraints are implemented by employers to protect their interests due to the confidential information employees hold whilst employed and when they leave.
These restraints can impact employees in numerous ways.
For example, common restraints include:
Enforceability of Restraints
Typically, restraints of trade are considered void and unenforceable at law unless the restraint is shown to be reasonable and in the public interest.
It will be the responsibility of an employer to prove to the court that a restraint of trade is reasonable if they want to enforce it. This involves satisfying that:
1. The employer is seeking to protect a legitimate interest; and
2. The restraint’s scope is reasonable in protecting this interest.
Legitimate Interest?
As an employer, the restraint must protect a legitimate interest. A legitimate interest has been recognised previously as:
This list is not exhaustive, however.
What Is Reasonable?
Employers need to exercise caution when protecting the interest, as the scope must not be unreasonable. When determining whether the scope of a restraint is reasonable, the court will consider:
Severance and Cascading clauses
Even where it is determined that an employer has a legitimate interest to protect, but the scope of a restraint is unreasonable, the court will consider any unreasonable restraint term as void.
“Blue Pencil Test”
Therefore, where possible the court will sever the part of the restraint which is unreasonable, to allow the reasonable aspects of the restraint to be applied. The method, which is applied at common law in all jurisdictions, excluding NSW, is the “blue pencil test”. This involves striking out unreasonable sections of the restraint, however, the terms of the restraint cannot be modified or altered to affect the way in which the restraint applies.
”Read Down Test”
In NSW, the position is different. Restraints are able to be “read down” pursuant to the Restraints of Trade Act 1976 (NSW). This results in restraints being more likely to be enforced in NSW as the court is not limited to the “blue pencil” approach, but rather are able to modify the provision to offer some protection to the legitimate interest which has been identified.
As a result of these tests, restraint clauses offer the most protection when drafted as “cascading clauses”. However, employers need to note that cascading clauses can also be deemed as void due to uncertainty and therefore, the drafting of sufficient cascading clauses is a legally complex task. As such, employers are advised to obtain legal advice when implementing cascading restraint clauses.
Restraint Breached? These are the steps you can take.
As an employer, it is critical that further steps are taken to prevent any further breaches if a restraint has been breached by a current or former employee. Steps which can be taken include but are not limited to:
However, if the breach persists, or has already caused significant financial damage, it is likely that legal action will need to be taken in the form of seeking an injunction to enforce the restraint. Where an injunction fails to prevent further losses, a claim can be brought for damages due to the loss suffered by a business.
Recent Successful Judgment Obtained by Chamberlains
Chamberlains recently acted for AEI Insurance in AEI Insurance Pty Ltd v Martin (No 4) [2024] FCA 1110.
The Federal Court ruled that Craig Martin, a former account manager at AEI Insurance Group, was required to pay $500,000 in damages after over 40 clients transferred to a competing brokerage firm he joined post-resignation. The court found Martin violated his contract’s post-employment restraint clause by soliciting clients. Additionally, he likely destroyed two mobile phones to obstruct information access, with one being damaged by a lawn mower.
Martin, who had extensive experience in the trucking and repair sectors, worked at AEI from July 2011, with a focus on expanding the business in Queensland. He was seen as the face of AEI in the region due to his skills in client assistance.
After resigning on 29 August 2022, Martin joined MA Brokers, effective 2 September 2022. His contract included a 12-month restriction on soliciting AEI clients. Despite this, he sent a text on 1 September 2022 to clients of AEI Insurance with his new contact details. The text read “Craig martins new phone number [New Telephone Number]”. AEI Insurance discovered this and requested compliance with the restraint clause and the return of company property.
By 3 November 2022, AEI learnt that 21 clients had moved to a MA Brokers. This resulted in Chamberlains seeking an injunction against Martin. Despite this, 24 more clients left for MA Brokers. The court noted the income from these clients was $752,978 in the year leading up to 28 August 2022.
Martin argued that clients might have left for reasons unrelated to his actions, citing his industry connections and skills. However, the court found this implausible, confirming that 45 clients moved to MA Brokers. The decision grouped clients into three categories, concluding Martin solicited most of them directly or through MA Brokers. This clearly breached his post-employment obligations with AEI Insurance.
The Court ruled in favour of AEI Insurance, awarding damages amounting to $500,000. This amount took into consideration those clients who were not solicited by Martin, the retention rates of clients, and uncertainties about client departures and policy renewals.
If your business has suffered a breach of restraints or post-employment obligations by an employee, please contact Chamberlains Law Firm for assistance. Our team of expert lawyers can provide bespoke advice and assist your business in mitigating the effects of the breach.
*This article was prepared with the assistance of Isabella Turner and Challita Tahhan.
Introduction
Corporate misconduct can significantly harm consumers and employees, leading to financial loss and emotional distress. This misconduct ranges from deceptive advertising and product defects to employment discrimination and wage theft. In such instances, class action lawyers play a crucial role in advocating for victims, providing them with the legal support necessary to seek justice.
Understanding Corporate Misconduct
Corporate misconduct manifests in various forms, impacting both consumers and employees. One common type of corporate misconduct is fraudulent practices, which includes:
Product liability is another type and includes manufacturing defects or unsafe products that cause harm to consumers. Lastly, employment violations are another common type of misconduct and manifests through discrimination, wage theft and unsafe working conditions.
The legal implications of corporate misconduct can be profound and victims may have the right to seek compensation for damages while corporations can face significant penalties.
The Role of Class Action Lawyers
Class action lawyers are instrumental in representing the class of people. They typically begin by investigating claims, identifying common issues among the class and assessing the viability of a class action. Class action lawyers employ several legal strategies to strengthen their case including class certification whereby they establish that the group of people have a similar issue that is too small to warrant separate lawsuits.
Case Example: Class Action Lawsuits Against Corporations
Recently, a class action lawsuit was commenced against Virgin Australia on the basis that they had allegedly hid their true liquidity position. While this class action is still in the early stages of court proceedings, it provides an important lesson regarding the necessity of transparency and ethical practices in corporate operations.
The Process of Joining a Class Action Lawsuit
Victims interested in commencing a class action lawsuit should follow several steps:
Victims are also encouraged to conduct thorough research into whether a class action is already being investigated or commenced against the same defendant.
Challenges in Corporate Misconduct Class Actions
Despite their advantages, class action lawsuits also face several challenges. Legal and procedural hurdles can complicate the process, as class certification requires lawyers to navigate intricate legal standards and demonstrate shared issues among the claims of different plaintiffs. Additionally, corporations often deploy extensive legal resources to defend against class actions, resulting in prolonged legal proceedings that can delay justice and increase the stress for the affected individuals.
How Can We Help?
Class action lawyers utilise their experience and resources to overcome these challenges, employing strategic negotiations, thorough evidence gathering and public advocacy to improve their cases. Chamberlains Law Firm’s Class Action Lawyers have specific expertise which can be crucial in navigating the complexities of corporate law and advocating for victims effectively.
If you have any questions or would like to discuss a potential class action relating to corporate misconduct, please reach out to our office on 02 9264 9111.
*This article was prepared with the assistance of Grace Tully
AML/CTF Amendments
On 11 September 2024, Commonwealth Attorney-General Mark Dreyfus introduced the Anti-Money Laundering and Counter-Terrorism Financing (AML/CTF) Amendment Bill 2024 (‘the Bill’) into Parliament. This legislative reform marks a significant step in enhancing Australia’s efforts to combat money laundering, terrorism financing, and other forms of illicit financial activities. The bill builds on the existing framework and aims to strengthen Australia’s financial security infrastructure
Rationale
Money laundering and terrorism financing are serious threats to the global financial system. These illicit activities undermine economic stability, facilitate criminal operations, and even fund violent extremism. In a world where financial transactions are increasingly digital and globalized, governments and financial institutions face mounting challenges in detecting and preventing such crimes. Australia is no exception.
The introduction of the AML/CTF Amendment Bill 2024 follows the Financial Action Task Force (FATF)’s recommendations. FATF is an international body that sets standards for combating money laundering and terrorism financing. FATF has highlighted the importance of having robust systems to detect illicit financial flows, and the bill seeks to align Australian law with evolving global standards. Additionally, the Australian Transaction Reports and Analysis Centre (AUSTRAC), which monitors financial transactions for suspicious activities, is expected to receive more power and resources to oversee financial institutions and enforce compliance.
The Bill has three core objectives in its implementation:
If passed, the Bill would amend the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (‘AML/CTF Act’) to improve its capacity to effectively deter, detect, and disrupt money laundering and terrorism financing.
Key changes
Expansion of the AML/CTF Regime to ‘Tranche Two’ Entities
A key element of the Bill is its proposal to expand the AML/CTF regime to certain services provided by gatekeeper professions, including real estate professionals; dealers in precious metals and stones; and professional service providers.
Certain services provided within these sectors have been identified as high risk of money laundering exploitation, with disparities in regulation of these tranche two entities being a key vulnerability of Australia’s AML/CTF regime.
The Bill would expand the list of designated services to be regulated under the AML/CTF regime to include these higher risk services provided by tranche two entities, bringing Australian regulations into alignment with the international standards set by the Financial Action Task Force (FATF).
Expansion of the AML/CTF Regime to ‘Virtual Assets’
The proposed amendments entail the expansion of the AML/CTF regime from digital to virtual assets. As opposed to digital assets, the definition of virtual assets removes the requirement that the asset be generally available to the public without any restriction on its use, thus broadening the scope of Australia’s AML/CTF. This seeks to appropriately address the risks presented by the sector, with digital currency exchanges and digital currencies being identified as increasing Australia’s money laundering vulnerability.
AUSTRAC powers
The Bill contains provisions which will expand the information gathering powers of AUSTRAC, with the intention of improving their ability to effectively monitor, investigate, and enforce compliance with the AML/CTF regime. This includes the introduction of an examination power, which would allow AUSTRAC to gain access to information relevant to enforcement decisions and evidence to be used in proceedings, as well as to assist with its financial intelligence functions.
Risk and Compliance Requirements for Reporting Entities
Customer Due Diligence
The Bill reframes and clarifies reporting entities’ responsibilities with respect to customer due diligence. As opposed to the previous framework which operated under a ‘risk based approach’ to determine what additional information should be collected and verified, the new framework adopts an outcome focused approach requiring – on reasonable grounds – the collection of specific information as pertaining to customers. Expanding on the requirement to undergo ‘ongoing customer due diligence’, the new regime requires entities to continually monitor for changes in a customer’s ML/TF risk and review know your customer (KYC) information at a frequency proportionate to their risk rating.
Governing Body Responsibilities
The amendments to the regime increase the obligations of a reporting entity’s governing body with respect to monitoring compliance with AML/CTF policies and procedures. The governing body must not only exercise ongoing oversight of AML/CTF compliance but is also required to take reasonable steps to ensure the entity is appropriately identifying, assessing, and mitigating ML/TF risks.
What will remain the same
The reforms will not result in any fundamental change to the core requirements of the existing AML/CTF regime which already align with international obligations, these requirements being that:
In summary
The proposed amendments to the AML/CTF regime will require reporting entities to reevaluate their systems and processes to ensure compliance with the expanded framework and represents a substantial change for businesses and financial institutions operating within Australia. They will face heightened regulatory requirements, including more stringent compliance protocols, record-keeping duties, and reporting obligations. Institutions will need to invest more heavily in compliance infrastructure, training, and technology to meet the enhanced standards.
The increased powers granted to AUSTRAC also mean that businesses must be prepared for more rigorous scrutiny. The risk of penalties, which could include heavy fines for non-compliance, is now much more significant. As a result, businesses will need to integrate anti-money laundering and counter-terrorism financing measures into their day-to-day operations more thoroughly than ever before.
Moreover, the expansion of the bill to cover new sectors, such as cryptocurrency and real estate, will require these industries to develop tailored compliance systems, ensuring they do not become conduits for illicit financial flows. Industry stakeholders will need to work closely with regulators to ensure they meet the required standards.
Conclusion
The proposed Bill is a pivotal piece of legislation that aims to fortify Australia’s defenses against money laundering, terrorism financing, and other financial crimes. With its comprehensive provisions, the Bill ensures that the Australian financial system remains resilient, transparent, and secure in the face of evolving global threats. For businesses, financial institutions, and regulators, it marks the beginning of a new era of heightened vigilance, compliance, and cooperation in the fight against illicit financial activity.
Sources:
Anti-Money Laundering And Counter-Terrorism Financing Amendment Bill 2024, Explanatory Memorandum – JC014035.pdf;fileType=application/pdf (aph.gov.au)
*This article was prepared with the assistance of Clea Phillips
In Western Australia, access to a deceased person’s will is not governed by a single statutory provision equivalent to section 54 of the Succession Act 2006 (NSW). Instead, access is regulated through a combination of the Wills Act 1970 (WA), the Administration Act 1903 (WA), the Non-Contentious Probate Rules 1967 (WA), and principles established by the Supreme Court of Western Australia.
Although Western Australia does not have a centralised statutory “right to inspect,” there are clear legal pathways for individuals with an interest in the estate to obtain a copy of the will.
In WA, executors are generally expected to provide a copy of the will to anyone who has a proper interest in the estate. This includes:
The Supreme Court confirmed this approach in Chapman v Garrigan [2017] WASC 336, noting that it is ordinarily appropriate for a person with a potential interest to be given access to the will unless exceptional circumstances justify refusing disclosure.
The first step is to make a written request to the executor or the solicitor holding the will. Executors are expected to act reasonably and provide access unless there is a valid legal reason to refuse.
If informal requests are unsuccessful, several formal mechanisms are available:
Once probate has been applied for, the will becomes part of the public probate file. Persons with sufficient interest may request to inspect or obtain a copy through the Supreme Court of Western Australia Probate Office.
If the will is not voluntarily disclosed, an application may be made under Order 73, rule 20 of the Rules of the Supreme Court 1971 (WA) to compel production of the will.
Before applying, the requesting party should provide written notice to the executor and a costs estimate, as costs are often recoverable if the refusal was unreasonable.
WA does not maintain a central public will registry. However, the Public Trustee of Western Australia operates a “Will Bank” where individuals may deposit their wills for safekeeping. If the whereabouts of a will is unknown, a search request can be made.
Executors and solicitors are encouraged to adopt a practical approach to providing access. Early disclosure typically facilitates smoother estate administration and reduces the risk of disputes.
While Western Australia differs from NSW by not having a legislative provision expressly granting access to wills, there are clear legal principles and established procedures enabling eligible persons to obtain a copy. These include:
The team at Chamberlains is here to assist you through the process. We’re With You.
Queensland mirrors NSW in approach but operates under section 33Z of its own Succession Act, outlining who has the right to inspect or obtain a copy of a will. This section ensures transparency in estate administration and protects the rights of beneficiaries and potential claimants.
A broad group of people, including beneficiaries, former beneficiaries, spouses, children, and anyone who may have a claim against the estate, may request access to the will. The right applies to both the final will and earlier wills.
The team at Chamberlains are here to help guide you through the process. Were With You.
The entitlement to inspect or obtain a copy of a deceased person’s will in the ACT is governed by section 126 of the Administration and Probate Act 1929 (ACT). This section sets out the categories of people who have a legal right to access the will and ensures transparency for beneficiaries, family members and other interested parties.
Section 126 provides that certain individuals may request to view or obtain a copy of the will. This includes people who have a legal, beneficial or potential interest in the estate, allowing them to understand the deceased’s intentions and whether they are entitled to benefit.
The team at Chamberlains are here to help guide you through the process. We’re With You.
Are you able to get a copy of the will? Under Section 54 of the Succession Act 2006 (NSW) pertains to the rights of beneficiaries and others to view a will. This section is significant for individuals seeking to understand their entitlements or the provisions made in a deceased person’s will.
Under the Section it provides that a person who is interested in the estate (such as a beneficiary or someone who may have a claim against the estate) has the right to inspect the will. This right allows interested parties to view the will to understand how the deceased’s share of the estate is to be distributed.
The team at Chamberlains are here to help guide you through the process. Were With You.