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WillsHub is an Australian law blog 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.

Law Society of New South Wales, wills, will, making a will, executors, trustees,

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Testamentary freedom in Australian law

It is worth noting what was said in a judgment from a recent case before the Supreme Court of New South Wales about adult children contesting their mother’s will for more.  The Court said the following:

“…a testator is entitled to be unequal in the treatment of her children. Fairness and equality are not

required by the law. Within the limits of the law, testators may dispose of their estates as they see fit. Adult children have no automatic right to share in the estate of a parent. Nor do they have an automatic right to equality between them. That may be the system in European countries, including possibly in the Balkans, but it is not the law in Australia. As I have observed on several occasions, subject to the family provision sections of the Succession Act, freedom of testamentary disposition remains an integral part of our law:….”

And following on he added:

“Related to that point is a principle, …..that the courts naturally respect and give deference to the considered judgments of apparently rational and sensible testators.”1

The Hon. Justice Pembroke, Judge of the Supreme Court of New South Wales.

More

  1. Contemplating marriage and making a will Comments Off on Contemplating marriage and making a will
  2. 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. Continue reading

  3. Contesting a will – time limits on making an application Comments Off on Contesting a will – time limits on making an application
  4. time limits, family provision, family provision law, farm, Western Australia, contest a will, 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. Continue reading

  5. “Contrary intention” in succession law and will-making Comments Off on “Contrary intention” in succession law and will-making
  6. Broken Hill Courthouse - Coat of Arms, early Australian courthouses, Australian legal history, Australian Colonial courthouses,contrary intentionMany 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. Continue reading

  7. Meaning of words in a will – resolving differences in a farmland context Comments Off on Meaning of words in a will – resolving differences in a farmland context
  8. meaning of will, farm succession, farm inheritance, meaning of plant and equipment 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. Continue reading

  9. Leaving an unsigned will – second thoughts or intended last words? Comments Off on Leaving an unsigned will – second thoughts or intended last words?
  10. 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

  11. Meaning of stepchild when contesting a will Comments Off on Meaning of stepchild when contesting a will
  12. stepchild, family provision, testator's family maintenance,

    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. Continue reading

  13. Stepchild contesting a step-parent’s will – Queensland Comments Off on Stepchild contesting a step-parent’s will – Queensland
  14. stepchild, willshub, step-parent, family provision, 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. Continue reading

  15. Elder Abuse World Awareness Day – June 15 Comments Off on Elder Abuse World Awareness Day – June 15
  16. elder abuse, elder abuse awareness day, 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. Continue reading

  17. Severing a joint tenancy unilaterally Comments Off on Severing a joint tenancy unilaterally
  18. 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

  19. Estranged child left out of a will – claiming family provision Comments Off on Estranged child left out of a will – claiming family provision
  20. 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

  21. When the deceased’s will seems lost or missing – where to enquire? Comments Off on When the deceased’s will seems lost or missing – where to enquire?
  22. lost original will, missing wills, 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. Continue reading

  23. Step-grandchildren described as “descendants” and “children”- can they inherit? Comments Off on Step-grandchildren described as “descendants” and “children”- can they inherit?
  24. Step-grandchildren, will-making, descendants, childrenIf the words “descendants” and “children” are being used to describe beneficiaries in a will, is it intended by that any step-grandchildren are included? Continue reading

  25. When no will is left Comments Off on When no will is left
  26. 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

  27. Personal items in a deceased estate Comments Off on Personal items in a deceased estate
  28. personal-effectsPersonal things can have great sentimental value, and depending what they are, maybe commercial value. Continue reading

  29. Probate litigation costs Comments Off on Probate litigation costs
  30. Court costs, probate litigationIncreasingly, it is not always automatic that costs of challenging a will for more provision will be paid out of the deceased’s estate. Courts may take into account the conduct of the litigants towards each other in regard to their efforts in resolving their differences before hearing. Continue reading

  31. Personal possessions – interpreting their meaning and entitlements Comments Off on Personal possessions – interpreting their meaning and entitlements
  32. personal possessions, deceased estate, will making, Leaving gifts of personal possessions seems easy to do – until someone else has to interpret what was meant in the words used in the will. Continue reading