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.
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
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.