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 and symbolic and should not be underestimated.”1 Of course, like all freedoms it should be used reasonably and not abused.
An example of the significance of this feature being applied was in a situation where adult children were contesting their mother’s will for more provision. The Court said:
“…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 the Judge 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.”2
The Court has a wide discretion in its role deciding claims for family provision. In this respect it is worth noting what another judge has said and cited subsequently3:
“The Court’s roles is not to reward an applicant, or to distribute the deceased’s estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court’s roles is of a specifc type and goes no further than the making of “adequate” provision in all the circumstances for the “proper” maintenance, education and advancement in life of an applicant.””
1. Goodsell v Wellington  NSWSC 1232, per Hallen J.
2. Kraljevic v Kraljevic  NSWSC 225, per Pembroke J.
3. Hinderry v Hinderry  NSWSC 780, per Bryson J.
21 June 2018, updated 12 February 2019
© BHS Legal
Time limits to contest a will
Time limits under succession law on family provision limit when you can contest a will. Most states and territories family provision legislation provide for some time limit, often the period is six months but it can vary.
The time period might start from the date of death or from when probate is granted. If you are thinking of challenging a deceased person’s will, and you are an eligible person under the law, it is important to be mindful of the time limit. To find out when see the legislation on family provision or testator’s family maintenance in this table, or consult a local solicitor.
But what if the time period has passed? Most legislation provides the Court with a discretion to extend the time within which to make an application, but it is not automatic and the Court’s permission to file must be sought first. Legal assistance is essential.
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.
When a stepchild has been left out of the will of a deceased step-parent
In a Queensland case1 a stepchild sought provision out of the estate of his step-mother, a widow. Her husband, and the applicant’s father had pre-deceased her. She had no children of her own, that is no natural children, so no descendants: only the applicant her step-child, and he was an only child.
Before the applicant’s father died, he and his wife each made wills in similar terms. Basically these were all to each other, then on the first to die, in equal proportions to the the applicant and a nephew.
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.
Some grandparents like to leave something to their grandchildren in their will. If they have step-grandchildren as well, as is increasingly likely these days, are they to be included in the will too?
If grandparents intend step-grandchildren in their extended family to benefit under their will, then to assist their executors for the efficient administration of their estate, it would be helpful if they could make that clear in their will, as a recent New South Wales case has highlighted.
When no will is left by a deceased person they are said to have died intestate. Dying intestate means that their property and things are distributed according to the legal rules on intestacy made by the Parliament in the state or territory where they lived. Sometimes a person may have left a will, but for some reason a problem arises so that not all of the property can be disposed of.
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.
By B Stead
Adult children who feel they have not been provided for or left out of their parent’s will, may wish to make a claim from their deceased parent’s estate. Children of a deceased parent are eligible under family provision or testator’s family maintenance legislation to apply to the Court for an order for provision out of their deceased parent’s estate. More
Illegitimate children or ex-nuptial children are those born outside of marriage. Changes to the law mean that the inheritance rights of illegitimate children are equal to those of legitimate children. So this means they can inherit. What happens if no will was left, (an intestacy) either by an ex-nuptial child or their parent? Who inherits then? Can an ex-nuptial or illegitimate child be eligible under succession law to make a claim on a deceased parent’s estate?
To see the will, view it or obtain access to the will of a deceased person
To see the will of a deceased person and getting a copy 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.
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.
By B Stead
Living at home on Youth Allowance when a parent dies – superannuation death benefits and income tax.
Many young adults live at home while they study, work and train in preparation for their future. For some, Youth Allowance payments (see below) may go some way in paying bills, but there is still heavy reliance on parental financial assistance.
Losing a parent in these circumstances is particularly devastating. If the young person receives superannuation death benefits from their parent’s superannuation fund, would they be assessed on this money for income tax?
Per stirpes and per capita distribution of a deceased estate
Per stirpes and per capita are Latin terms referring to the ways in which a person’s estate can be distributed among their descendants, their children, grandchildren and so on. A person’s descendants are often referred to as “issue” in succession and inheritance law. As the term ‘issue’ refers to more family than just ‘children’ this can lead to confusion when interpreting what a will-maker intended. For more see this article on using the words “issue” and “children” in wills.
Per stirpes and per capita are different ways of distributing property among a group or class of people, either under a will or when there isn’t one. They address the situation where one or more family descendants of a person have predeceased them. Per stirpes means ‘by the stocks, roots or branch” and per capita means ‘by the head’, by each individual person in equal shares. More
“Issue” is a legal word often used in wills regarding estate distribution
Language can be confusing. Words like ‘issue’ and ‘children’, may be thought of in one way by some, but be interpreted differently by others, see graphic.
The problems may not arise until the will-maker has passed away; leaving the question what did they really mean? This article is about the meaning of issue in wills.