In the world of guardianship and administration law, one important question often arises: to what extent is a guardian or administrator under the Guardianship and Administration Act (GA Act) entitled to see the represented person's will?

This blog post provides an overview of this subject, relying on the decision in MT [2018] WASAT 80 as a reference point.

The MT Case and Relevant Legislation

In MT [2018] WASAT 80, the question of whether a guardian or administrator should have access to the represented person's will was discussed. The Tribunal, in this case, held that it was not necessary to view the will of the represented person (MT) to determine the application for the appointment of an administrator of MT's estate in her lifetime (para 49). This was because the Tribunal's role was to determine whether MT needed an administrator for her estate, and the terms of her will were not relevant to this question (para 50).

However, the Tribunal acknowledged that the terms of a will may be relevant to the question of who may be appointed as an administrator (para 51). For example, the appointment of an executor in an unrevoked will may provide guidance to the Tribunal as to the wishes of a proposed represented person for the appointment of an administrator.

Access to the Represented Person's Will

Under the GA Act, the Public Advocate has functions to advance the best interests of the represented person at hearings, to present any relevant information to the Tribunal, and to report on any investigation referred (GA Act s 97(1)(b)(i)(ii)(iii)).

In MT, the Tribunal accepted the evidence of the Public Advocate's investigator, who gathered MT's views and wishes without requiring access to her will (para 48).

In some circumstances, access to the represented person's will may assist the administrator in clarifying the extent of the estate or determining whether further orders might be sought by the administrator for preserving the tenure or devolution of the represented person's property (para 65).

In MT, the Tribunal ordered that a copy of the will should be provided to the Public Trustee if it was in the possession of AT, one of the parties in the case (para 3).

The Importance of Best Interests

In deciding on the appointment of an administrator, the Tribunal's primary obligation is to act in the best interests of the represented person (para 63).

While the Tribunal must ascertain the wishes of the represented person, it must weigh these wishes against factors such as the complexity of the circumstances, the conflict between family members, and the expertise and neutrality of the proposed administrator.

Key Take-Aways

In summary, under the GA Act, a guardian or administrator is not automatically entitled to see the represented person's will.
The terms of the will may be relevant to determining who should be appointed as an administrator, but the focus should be on the best interests of the represented person.
Access to the will may be granted in some cases to assist the administrator in fulfilling their duties, but this will depend on the specific circumstances of each case.