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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“Contrary intention” in succession law and will-making

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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.

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Meaning of stepchild when contesting a will

Inheritance in domestic relationships and stepchildren

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.

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Severing a joint tenancy unilaterally

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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 the surviving owner now owns the whole property, see graphic. This is due to the operation of law and is independent of a will.

When the survivor dies, the property then passes according to their will, or if no will left, according to the intestacy rules. For people co-owning property as joint tenants, it is therefore important to review their situations and wills on a regular basis to ensure outcomes on death are what is wanted.

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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 the deceased’s will seems lost or missing – where to enquire?

lost original will, missing wills, When the original will of a deceased person can’t be found, the task of finalising their affairs and administering their estate becomes more complicated, time-consuming and costly.  It is therefore worthwhile to undertake methodical searches of the deceased’s residence, thoroughly searching high and low for a will or testamentary document, including the garage, shed and the like.  But what else can be done? Some suggestions follow as to where enquiries might be made. More

Personal items in a deceased estate

personal items, personal effects, belongings, deceased estate, will, willmaking, testator, personal thingsPersonal items can have important sentimental value.  They may be family heirlooms passed down to keep within the family, with unique stories to tell.  Personal items may have little commercial value, or maybe of significant monetary worth in the case of jewellery, antiques, artworks and the like.

What might “personal items” mean in succession law?  What happens if you don’t leave any instructions as to who takes your personal things and you die intestate? Who is entitled under the law to take your personal items then?  More

Personal possessions – interpreting their meaning and entitlements

personal possessions, deceased estate, will making, Personal possessions, personal items, belongings or effects and similar expressions are often used by willmakers to leave instructions on what they want done with such things.

The executor’s role is to administer the estate of a deceased person in accordance with the terms of their will.  The case law shows that occasionally a term causes uncertainty for an executor as to what the willmaker intended in their choice of words or expressions.  What did they mean? What did they want to have happen, and how may their executor or personal representative resolve this dilemma with confidence that they are doing the right thing?

Executors seeking advice

If faced with a difficult dilemma as to what to do, executors can apply to the Supreme Court for an opinion, advice or direction on any question respecting the management or administration of trust property, under s 63 of the Trustee Act 1925 (NSW).

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Issue and children – some issues with words

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.

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Signing the wrong will by mistake

mistakenly wrong will, signing a will, mirror wills, reciprocal wills, mistake, error, will-makingMany couples wish to leave their estates to each other when they die, and then to their children.  They usually nominate the same people to act as their executors and trustees, typically each other,  and one or more of their children may be appointed as substitutes.

Putting these intentions into writing in their individual will documents therefore contain identical terms, so that each document reciprocates the contents of the other.  Lawyers commonly refer to these wills as “mirror wills” or reciprocal wills.

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A mistake found in the will – can it be fixed or rectified?

Sometimes it is not until after a will-maker dies, when their executor is applying for a grant of probate, or seeking to administer the estate, that some kind of administrative mistake is discovered in the will.  For example words used in the will, or some mis-description, operate to prevent the will-maker’s intentions from being put into effect.  Resolving the problem usually requires making an application to the Court.  This causes expense and delay.

It is unfortunate that such genuine clerical mistakes or ambiguities are not picked up during will-making. Can anything be done when they are discovered after death?  Can they be fixed so as to preserve what the deceased intended to happen?  Or will it result in an intestacy?

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Renouncing executorship and probate – when an executor does not wish to act

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Renouncing probate is what you can do if you are named as executor in a deceased person’s will, and do not want to take on the role.  You are not obliged to, but you need to take steps to put that into effect as soon as practical.

Note, if you are looking for executor services, you can find a lawyer or law firm to do this by contacting the law society in your state/territory for referrals: links here.  Alternatively the public trustee in your state/territory, links here, also provides executor services, as do some non-government providers including banks, even if they were not consulted when the will was made.    

Can an executor resign?
There is no requirement that a named executor in a will  must accept the role of executorship, even if you had agreed with the willmaker that you would.

So in other words, can you resign as executor of an estate? Yes, providing you have not intermeddled in the estate already, see further below on what intermeddling means.

If you don’t wish to act when the time comes, and you have not dealt with estate property, you can give up the right to do so.  It means you give up your appointment as an executor, commonly called renouncing probate. In renouncing probate you are renouncing the executorship, in other words resigning.  It means you renounce or give up your right to apply for probate of the deceased’s will; sometimes expressed as to ‘renounce probate’.

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Probate – a grant of probate – what is probate?

Administration of a deceased person’s estate – proving the validity of a will

By B Stead
probateProbate is the official process to establish or prove, whether a deceased person’s will or testamentary document is valid and intended to be their last will.

A grant of probate is the document issued by the Court of Probate after the examination process.  A type of grant of representation, it is an order of the Court certifying that the executor (or personal representative) named in the document is lawfully authorised to administer the estate of the deceased person. More

A lost will: – when the original can’t be found.


missing will, misplaced will, lost will, Keeping an original will safe and secure is one thing, (see storing a will), but as a practical matter, it is  important to let executors know, or family or a trusted friend, of its whereabouts.

But what if for some reason an original will cannot be located, despite thorough searches?  Some additional enquiries which may be made in finding a missing will is discussed here. If a deceased person has not left a valid will, the intestacy rules apply.  More

Who can see the will of a deceased person & can you have a copy?

To see the will, view it or obtain access to the will of a deceased person

see the will, wills, probate, deceased estate, copy of someone's will, WillsHubTo see the will of a deceased person 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.

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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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