WillsHub is an Australian law site on Australia succession law aiming to draw together legal information on wills, deceased estates, intestacy, family provision and estate administration – collectively known as succession or inheritance law. Published by BHS Legal, an Australian incorporated legal practice, WillsHub is written by principal lawyer Bronwyn Stead, 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.
Featured Post
When no will is left
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
Renouncing or resigning from executorship and probate – when an executor does not wish to act
There is no requirement that an executor must accept the executorship role, even if it was agreed to do so. But relinquishing executorship should be done as soon as practical if you don’t wish to act and have not dealt with the estate. You can resign your appointment as executor by renouncing your right to probate of the deceased’s will, that is you renounce probate. Continue reading
Signing a will, having it witnessed – who can be a witness & what is required?
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
Intestacy rules – who is entitled to inherit?
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
Update a will to avoid unintended outcomes
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 a will do?
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
Making a valid will – what are the requirements?
A will documents a person’s intentions for what they want to have happen when they die. To make a legally valid will means complying with all the prescribed legal requirements. Continue reading
What is a will?
What is a will? It is a testamentary document in which a person sets out their intentions for the distribution of their property when they die. Continue reading
Dying intestate – when there is no will left or an invalid one
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?
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
Recent Posts
“My issue” – considering the meaning of “issue” in wills
The primary legal meaning of “issue”
“Issue” is a technical legal term used in succession and inheritance law and some discretionary trusts. “Issue” is not defined in wills and succession legislation even though it occurs in some legislative provisions. Its legal meaning has been developed under the general (common) law going back to at least 16th century English cases.
The High Court has said that ‘issue’ is a word with a clear prima facie legal meaning. It means descendants or progeny, and is not limited to children.1,2 Prima facie means at first instance.
Under the general law the “issue” of a person means all of their lineal descendants by blood of every degree, including their children. That is your “issue” includes not just your children but all of your lineal descendants of all degrees – your children, grandchildren, great-children and so down the line without limit. See infographics. This is the primary legal meaning of issue.
Adopted children – while the primary meaning of issue is about blood relations, legally adopted children can be described as “issue” in certain circumstances and the operation of the respective adoption of children statutes.
Spouses/partners are not issue and so not shown.
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- Early inheritance issues and family provision Comments Off on Early inheritance issues and family provision
- Missing or lost original will – can a copy be used? Comments Off on Missing or lost original will – can a copy be used?
- Testamentary freedom in Australian law and family provision claims Comments Off on Testamentary freedom in Australian law and family provision claims
- Contemplating marriage and making a will Comments Off on Contemplating marriage and making a will
- Contesting a will – time limits on making an application Comments Off on Contesting a will – time limits on making an application
- “Contrary intention” in succession law and will-making Comments Off on “Contrary intention” in succession law and will-making
- 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
- Leaving an unsigned will – second thoughts or intended last words? Comments Off on Leaving an unsigned will – second thoughts or intended last words?
- Meaning of stepchild when contesting a will Comments Off on Meaning of stepchild when contesting a will
- Stepchild contesting a step-parent’s will – Queensland Comments Off on Stepchild contesting a step-parent’s will – Queensland
- Elder Abuse World Awareness Day – June 15 Comments Off on Elder Abuse World Awareness Day – June 15
- Severing a joint tenancy unilaterally Comments Off on Severing a joint tenancy unilaterally
- Estranged child left out of a will – claiming family provision Comments Off on Estranged child left out of a will – claiming family provision
- Lost or missing will – where to enquire? Comments Off on Lost or missing will – where to enquire?
- Step-grandchildren described as “descendants” and “children”- can they inherit? Comments Off on Step-grandchildren described as “descendants” and “children”- can they inherit?
- Personal items or chattels in a deceased estate Comments Off on Personal items or chattels in a deceased estate
- Probate litigation costs Comments Off on Probate litigation costs
To oppose a grant of probate, or contest a will, you need to be able to show that you have a legal interest in that deceased estate. 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. However things didn’t go to plan.
Probate applications require production of the original will. But what if the original can’t be found? In certain circumstances a Court will recognise a lost will and admit a copy of it to probate.
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.
If 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
Personal things can have great sentimental value, and depending what they are, maybe commercial value. Continue reading
Increasingly, 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