Not just anyone can oppose a grant of probate, or contest the validity of a will. You must have what the law calls “standing“. And you only have standing (or locus standi) to oppose a probate application or contest the validity of a will if you have a legal interest in the estate of a deceased person.
Further, it is important to be able to show that the interest is enough so as to entitle you to oppose the grant of probate being applied for; and so have standing to bring an action disputing the validity of the will.
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?
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.
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.
Personal items otherwise referred to as chattels in deceased estates 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, 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).
Nieces and nephews are the children of our brothers and sisters, this hardly needs saying. If someone wishes to leave a gift to their “nieces and nephews” in their will, it should be a simple matter to identify which individuals are a niece or a nephew and so entitled to share in the inheritance. However circumstances and relationship may change from the time a will is made to the date of death. More →