Contrary intention are words used in Australian succession legislation on wills and the administration of deceased estates. Some examples are given below of the range of matters where the law allows for a willmaker to express a contrary intention in their will to the statutory rule.
Where a provision of succession legislation contains these words, it means that the statutory rule can be displaced, that is not apply in the administration of their estate, if a willmaker has expressed a different intention on the matter in their will as to what they want to have happen. A contrary intention may be expressed in a will or appear in a will.
Inheritance in domestic relationships and stepchildren
A stepchild’s eligibility under the statutory rules for seeking provision from a step-parent’s deceased estate can be difficult.
In a Victorian case1 the executor of a deceased estate applied to the Supreme Court to have a claim for family provision dismissed.
The claim was brought by the adult daughter of the deceased’s former domestic partner, who had died some years before. She had been left out of his will, despite assurances and promises to the contrary. The deceased had left everything to his new domestic partner.
The right of survivorship means that when the first owner dies, their interest in the property is automatically absorbed so that the surviving owner now owns the whole property, see graphic. This is due to the operation of law and is independent of a will.
When the survivor dies, the property then passes according to their will, or if no will left, according to the intestacy rules. For people co-owning property as joint tenants, it is therefore important to review their situations and wills on a regular basis to ensure outcomes on death are what is wanted.
An estranged daughter, one of two sisters and the only children of their deceased mother, were engaged in legal proceedings in a contest over their mother’s deceased estate.1 In The Supreme Court of New South Wales, it was said that
The case provides yet another example of the high level of emotion that is generated in relation to the distribution of the property of a parent, particularly in circumstances where there is said to have been an estrangement between the Plaintiff and the deceased for some years prior to the death of the deceased.
When the original will of a deceased person can’t be found, the task of finalising their affairs and administering their estate becomes more complicated, time-consuming and costly. It is therefore worthwhile to undertake methodical searches of the deceased’s residence, thoroughly searching high and low for a will or testamentary document, including the garage, shed and the like. But what else can be done? Some suggestions follow as to where enquiries might be made. More →
Personal possessions, personal items, belongings or effects and similar expressions are often used by willmakers to leave instructions on what they want done with such things.
The executor’s role is to administer the estate of a deceased person in accordance with the terms of their will. The case law shows that occasionally a term causes uncertainty for an executor as to what the willmaker intended in their choice of words or expressions. What did they mean? What did they want to have happen, and how may their executor or personal representative resolve this dilemma with confidence that they are doing the right thing?
Executors seeking advice
If faced with a difficult dilemma as to what to do, executors can apply to the Supreme Court for an opinion, advice or direction on any question respecting the management or administration of trust property, under s 63 of the Trustee Act 1925 (NSW).
Personal items can have important sentimental value. They may be family heirlooms passed down to keep within the family, with unique stories to tell. Personal items may have little commercial value, or maybe of significant monetary worth in the case of jewellery, antiques, artworks and the like.
What might “personal items” mean in succession law? What happens if you don’t leave any instructions as to who takes your personal things and you die intestate? Who is entitled under the law to take your personal items then? More →
Costs of the parties in a recent probate litigation case1 from the South Australian Supreme Court, were ordered to be paid from the deceased’s estate. Following the trial Gray J gave reasons for making that costs order.2
We make a will so as to provide for our loved ones; to be able to choose who will inherit our property. But writing down our intentions so that they are clear and unambiguous for others when we are no longer around, is not easy. For example take the words “issue” and “children”. The word “issue” is a legal term meaning all of a person’s descendants; not just their children.
Many couples wish to leave their estates to each other when they die, and then to their children. They usually nominate the same people to act as their executors and trustees, typically each other, and one or more of their children may be appointed as substitutes.
Putting these intentions into writing in their individual will documents therefore contain identical terms, so that each document reciprocates the contents of the other. Lawyers commonly refer to these wills as “mirror wills” or reciprocal wills.
Sometimes it is not until after a will-maker dies, when their executor is applying for a grant of probate, or seeking to administer the estate, that some kind of administrative mistake is discovered in the will. For example words used in the will, or some mis-description, operate to prevent the will-maker’s intentions from being put into effect. Resolving the problem usually requires making an application to the Court. This causes expense and delay.
It is unfortunate that such genuine clerical mistakes or ambiguities are not picked up during will-making. Can anything be done when they are discovered after death? Can they be fixed so as to preserve what the deceased intended to happen? Or will it result in an intestacy?
Renouncing probate is what you can do if you are named as executor in a deceased person’s will, and do not want to take on the role. You are not obliged to, but you need to take steps to put that into effect as soon as practical.
Coat of Arms on the Old Supreme Courthouse, Sydney, New South Wales.
Can an executor resign?
There is no requirement that a named executor in a will must accept the role of executorship, even if you had agreed with the willmaker that you would.
If you don’t wish to act when the time comes, and you have not dealt with estate property, you can give up the right to do so. It means you give up your appointment as an executor, commonly called renouncing probate. In renouncing probate you are renouncing the executorship, in other words resigning. It means you renounce or give up your right to apply for probate of the deceased’s will; sometimes expressed as to ‘renounce probate’.
A grant of probate is the document issued by the Court of Probate after the examination process. A type of grant of representation, it is an order of the Court certifying that the executor (or personal representative) named in the document is lawfully authorised to administer the estate of the deceased person. More →
By: B Stead Keeping an original will safe and secure is one thing, (see storing a will), but as a practical matter, it is important to let executors know, or family or a trusted friend, of its whereabouts.
To see the will, view it or obtain access to the will of a deceased person
To see the will of a deceased person can be difficult when you are not the executor or administrator. However in some states changes to the legislation on wills and succession has made this easier by making it clear the category of persons who are entitled to see or inspect the will of a deceased person.
Dying without leaving a will, or leaving an invalid one, is to die intestate. Dying intestate means property left (the estate) is distributed according to the intestacy law. The intestacy law has been prescribed by legislation as the ‘default’ rules to apply in these circumstances. The problem is that the intestacy formula for distribution may not produce the desired outcome.