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Deceased estate

Who can oppose a grant of probate?

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.

Early inheritance issues and family provision

sandstone carving, Parkes Courthouse, New South Wales, 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.

Missing or lost original will – can a copy be used?

copy of a will, lost will, missing will, will not found, probate application, coat of arms Parkes Courthouse, early Australian courthouses, old Australian courthouses, Colonial Australian courthouses

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.

Testamentary freedom in Australian law and family provision claims

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 …

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Contesting a will – time limits on making an application

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.

“Contrary intention” in succession law and will-making

Image: Coat of Arms, Broken Hill Courthouse, NSW, by B Stead.

Broken Hill Courthouse - Coat of Arms, early Australian courthouses, Australian legal history, Australian Colonial courthouses,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.

Meaning of words in a will – resolving differences in a farmland context

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.

Meaning of stepchild when contesting a will

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.

Stepchild contesting a step-parent’s will – Queensland

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.

Severing a joint tenancy unilaterally

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 when the first owner dies, their interest in the property is automatically absorbed so that …

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Lost or missing will – where to enquire?

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.

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?

Probate litigation costs

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.

“Issue children” – some issues with words

issue, issue children, meaning of issue, legal meaning of issue, issue and children, children, wills, will,The word “issue” is a legal term meaning all of a person’s descendants; not just their children. It is easy to overlook this and the potential unwanted consequences for what is intended, if not used correctly when working out wording in a will.