Is an Attorney Entitled to the Principal’s Will?

The short answer to this question is ‘no’ unless there is an express direction from the attorney within the power of attorney document itself that the attorney is entitled to access the principal’s will. Otherwise, simply, in New South Wales at least, there is no legal basis for the attorney to obtain that information.

In Hawkins v Clayton [1988] HCA 15, the High Court held that a solicitor or any other person for that matter, holds a person’s will as bailee. Subject to the terms of the bailment (the legal relationship created between the bailor (the person making the will) and the bailee (usually a solicitor), the bailee owes an obligation to the bailor to exercise reasonable care with the will. The same can be said concerning an original title deed.

There is a popular view that an attorney should be provided with a copy of the will because it would be useful for an attorney to be informed of how the principal intends to dispose of his or her property upon their passing. In this way, the attorney can properly discharge his or her role as attorney. For instance, if the principal gifts certain real property under their will to a beneficiary but the attorney is not privy to this information and sells that same real property during the principal’s lifetime, that specific legacy will fail. Nevertheless, the position in NSW is still that an attorney is not entitled to a copy of the will.

Interestingly, a financial manager appointed by court or tribunal order (whether a private person or the NSW Trustee & Guardian has been appointed as financial manager) is entitled to a copy of the principal’s will by virtue of section 80 of the NSW Trustee & Guardian Act 2009. Arguably, the functions of an attorney and financial manager are the same. However, the Powers of Attorney Act 2003 does not confer such a right on the attorney.

The best course of action is for the principal to give an express direction in the power of attorney document itself as to whether the attorney can access the principal’s will, the type of access allowed and the circumstances in which that access can be obtained.

You’ll find that the team at Conditsis Lawyers is here to demystify the estate planning process.

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