Normally under Australian succession law marriage cancels a will (that is revokes in legalese) – unless the will was made in contemplation of marriage.
In addition to marriage, legislative amendments in some states/territories such as South Australia, Tasmania and the ACT, now provide for people contemplating entering into a registered relationship or partnership to make arrangements in their will. However the legislation on this topic of making a will when contemplating marriage varies across the jurisdictions.
It is important to check what the provisions are for where you live if you are planning on making a will ahead of getting married or entering into a relationship. Specific legal advice and assistance should be sought. A brief look follows. More →
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.
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.
Elder abuse is an important human rights issue yet little is known of its extent, it is under-reported. Not surprising as elders feel vulnerable, are dependent and likely do not have the capacity to do so, or if they did, know to whom to report it. Aging is a time of increasing vulnerability, of varying dependence on others for support of different kinds, depending on individual circumstances. Everyone is entitled to a life of dignity and safety in their old age, free of abuse and exploitation.
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.
Some grandparents like to leave something to their grandchildren in their will. If they have step-grandchildren as well, as is increasingly likely these days, are they to be included in the will too?
If grandparents intend step-grandchildren in their extended family to benefit under their will, then to assist their executors for the efficient administration of their estate, it would be helpful if they could make that clear in their will, as a recent New South Wales case has highlighted.