Wills, estates, succession & inheritance in Australia
WillsHub is an Australian law site seeking to draw together legal information, including recent case law, on the law on wills, deceased estates, intestacy, family provision and estate administration – collectively known as succession or inheritance law – from New South Wales and around Australia. Written by Bronwyn Stead, principal lawyer of BHS Legal, admitted to practise in the Supreme Court of New South Wales and in the High Court of Australia, member of the NSW Law Society and The Tax Institute, previously a medical research scientist, see About.
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. However relinquishing executorship of a deceased estate should be done as soon as practical. If you don’t wish to act when the time comes, and you have not done anything dealing with the estate you can give up the right to do so and appointment as executor by what is called renouncing your right to probate of the will; simply renounce probate. Continue reading →
The legal formalities to make a valid will require the will-maker to sign their will in the presence of at least two people, acting as formal witnesses to the event. Signing a will in front of witnesses fulfils a protective function. Can anyone witness or attest the signing of a will? And what must they do ? Continue reading →
If you die without leaving a will you are said to die “intestate”. In the absence of instructions left in a valid will, who will inherit your property? Succession law contains strict rules to deal with this problem. Continue reading →
Updating a will might seem a troublesome chore, but circumstances can change from the time it was made. The changes might produce unintended and unwanted outcomes in the event of death. Therefore reviewing a will is important to keep its contents in line with intentions. Regularly reviewing your will is important so it reflects your intentions. Continue reading →
Why make a will and what can it do? 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. Continue reading →
Intestate to most people means dying without a will. But even if a person has left a will, sometimes, for some reason or another, it doesn’t effectively dispose of all of their property. If that happens, the identified property falls into the residue of the estate and distributed according to the intestacy rules. This is called a partial intestacy. Continue reading →
Who can make a will? To make a will a person must be an adult and have the required mental capacity. A will made by a minor, being under 18, is generally invalid under State and Territory wills and succession legislation. Exceptions relate to contemplation of marriage, or altering or cancelling a prior will. If the contemplated marriage does not take place, the will is invalid. The court may authorise a minor to make, alter or cancel a will. Continue reading →
An early inheritance of a mortgage-free home was given to the younger daughter at the time of her marriage. It was well understood by all family members at the time that the other older daughter would receive her inheritance when the last parent died. This would be the parent’s home. Evidence was put of their parents’ expressed wishes to treat their two children fairly and to give each of them a property. They made wills to give effect to this. What could go wrong?
Being free to dispose of your property how and to whom you wish, that is the freedom of testamentary disposition is, as a Supreme Court judge said a “prominent feature of the Australian legal system. Its significance is both practical … Continue reading →
Normally under Australian succession law marriage cancels a will (that is revokes the will) – unless the will was made in contemplation of marriage. In some states and the ACT testamentary arrangements can be made in contemplation of entering into a registered relationship or partnership.
Time limits apply under family provision law within which to contest or challenge a will. If this time has passed it is possible to apply to the Court for an extension, but whether it is granted will depend on the circumstances. In this case the application was unsuccessful, being some years out of time.
Image: Coat of Arms, Broken Hill Courthouse, NSW, by B Stead.
Many provisions in state and territory legislation on succession and wills allow for a willmaker to express a contrary intention in their will to override 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.
The meaning of words and phrases used by a will-maker when leaving a specific gift may adequately express their intentions, at least to them at the time. However sometimes matters connected with the gift may arise down the track during administration of the estate, raising questions of interpretation.
Sometimes an unsigned will is left in situations where the willmaker, in consultation with lawyers, has been in the process of making a new will, but died before the requirements to make a valid legal document were completed. Leaving such … Continue reading →
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.
In a Queensland case a stepchild was left out of the will of a step-parent. He subsequently sought provision from his step-mother’s estate. She had no natural children of her own. Her husband, the applicant’s father, had pre-deceased her. The applicant was her only step-child. In another situation a claim was brought by seven step-children for adequate provision out of their deceased stepmother’s estate.
Elder abuse can take different forms. It can range across financial, psychological, physical and emotional neglect causing harm and distress to the older person. It may be intentional or not. Critical issues having potential to generate abuse of older ones involve legal capacity, and undue influence in entering into guarantees for family members and others, and reverse mortgages. Carers misusing their influence is another area. Financial abuse can surface in various ways, one in particular is placing pressure on an older person to make or change their will.
Many couples own their home together as joint tenants under a joint tenancy. Under a joint tenancy an important legal consequence to remember with this type of property co-ownership is the legal right of survivorship. The right of survivorship means that … Continue reading →
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 … Continue reading →
Missing wills or a lost will seem to be more common than one would think. Some people store important personal documents in unusual places without informing their executor where. Here are some suggestions on next steps after a thorough search has not been successful.
When no will is left by a deceased person they are said to have died intestate. Dying intestate means no will is left setting out what is to be done with the deceased’s property. Who is entitled to take their estate? Continue reading →