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.

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Contesting a will – time limits on making an application

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. time limits, family provision, family provision law, farm, Western Australia, contest a will,

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.

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Stepchild contesting a step-parent’s will – Queensland

stepchild, willshub, step-parent, family provision,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.

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Estranged child left out of a will – claiming family provision

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.

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When no will is left

When no will is left by a deceased person they are said to have died intestateDying 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.

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Court costs when contesting a will for family provision – who pays?

By B Stead

Court costs in contesting a will may run into thousands.

court costs, costs of proceedings, family provision, testator's family maintenance, If you are thinking of making a claim for family provision under a will, despite all efforts to find a solution, including mediation, don’t assume that your costs will be paid out of the estate; at least in New South Wales.  What happens  depends on individual circumstances.

In recent years the New South Wales Supreme Court has made it clear that the expectation that the costs of making a family provision claim will automatically be paid out of the estate, has been “thoroughly discredited.”1

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Adult children claiming provision from their parent’s estate – some things to consider

By B Stead

family provision, adult children, estrangement, equality, estate claimAdult 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, ex-nuptial children – can they inherit?

illegitimate children, ex-nuptial children, contest a will, challenge a will, inheritance, inherit, what is an exnuptial childIllegitimate 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?
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Family provision – who is eligible to claim from a deceased estate?

By: B Stead

Left out of a will or seeking more –  who can apply for provision?

family provision, eligibile person, will, deceased estate, challenge a will, contest a will, Family provision laws were introduced to remedy situations where willmakers failed to leave adequate provision for the proper maintenance, support and advancement in life for close family, usually spouses, partners and children.

The legislation gives the court1 discretionary power to order provision from a deceased person’s estate, where found to be inadequate, to “eligible” applicants, under certain circumstances. It is not automatic.

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Intestacy rules – who is entitled to inherit?

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Dying without a will (intestate) – who inherits?

Intestacy is when you die without leaving a will.  You are said to have died “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.

This is an outline of the application of the intestacy rules. They specify the order of entitlement as to who inherits and in what proportion, as well as the provision of a sum of money (statutory legacy) for the spouse or partner.   More

Update a will to avoid unintended outcomes

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By B Stead

Why update a will?

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 every few years or so, in light of changes in your life, is worth doing, as life events and matters such as those outlined below can affect a will.  Everyone’s situation is different so in all cases seek professional legal advice from a solicitor providing services in this area.

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Why make a will and what can a will do?

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By: B Stead

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.

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Issue and children in wills – say what you mean

“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.

Meaning of issue, meaning of issue of parents, issue and children in wills, next-of-kin, inheritance, succession, legal definition, meaning of the word 'issue'They have the potential to generate different interpretations and outcomes.

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.

 

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