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.
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.
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.
Updated 15 June 2020
Court costs in contesting a will may run into thousands.
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 “thoroughly discredited”1 the expectation that the costs of making a family provision claim will automatically be paid out of the estate.
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?
Left out of a will or seeking more – who can apply for provision?
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.
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
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.
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.
“Issue” is a legal word often used in wills regarding estate distribution
Key Points: “Issue” is a legal term meaning all of a person’s lineal descendants, including but not limited to their children. This difference is important in interpreting distribution and substitution clauses in wills. Take care when using the words “children” and “issue” in a will and seek professional advice.
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. They have the potential to generate different interpretations and outcomes. The problems may not arise until later, leaving the question what did the deceased really mean? This article is about the meaning of issue in wills.