“Gift over” in a will to a substitute beneficiary

Posted on 30 Jun 2020 by BHS Legal

However ift over to a substitute beneficiary

A “gift over” in a will is when a willmaker has provided that if their intended beneficiary dies or does not survive them within the required time by law, the gift passes over to a substitute beneficiary they have nominated instead to inherit. The substituted beneficiary is really a second recipient chosen to inherit or take the gift should an event occur, here the death of the first or primary beneficiary. Other conditions and contingencies may apply depending on what the will says and surrounding circumstances. See infographic.

“My issue” – considering the meaning of “issue” in wills

Posted on 2 Jun 2020 by BHS Legal

The primary legal meaning of “issue”

“Issue” is a technical legal term used in succession and inheritance law and some discretionary trusts. “Issue” is not defined in wills and succession legislation even though it occurs in some legislative provisions. Its legal meaning has been developed under the general (common) law going back to at least 16th century English cases.

The High Court has said that ‘issue’ is a word with a clear prima facie legal meaning. It means descendants or progeny, and is not limited to children.^1,2 Prima facie means at first instance.

Under the general law the “issue” of a person means all of their lineal descendants by blood of every degree, including their children. That is, your “issue” includes not just your children but all of your lineal descendants of all degrees – your children, grandchildren, great-children and so down the line without limit. See infographics. This is the primary legal meaning of issue.

Adopted children – while the primary meaning of issue is about blood relations, legally adopted children can be described as “issue” in certain circumstances and by the operation of the adoption statutes.

my issue, children, issue and children, grandchildren, descendants, inheritance, wills, deceased,

Spouses/partners are not issue and so not shown.

Who can oppose a grant of probate?

Posted on 7 Oct 2019 by BHS Legal

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.

Early inheritance issues and family provision

Posted on 13 Feb 2019 by BHS Legal

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” in succession law and will-making

Posted on 17 Mar 2018 by BHS Legal

Broken Hill Courthouse - Coat of Arms, early Australian courthouses, Australian legal history, Australian Colonial courthouses,contrary intention

Coat of Arms, Broken Hill Courthouse

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.

Step-grandchildren described as “descendants” and “children”- can they inherit?

Posted on 16 Mar 2017 by BHS Legal

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 or chattels in a deceased estate

Posted on 20 Dec 2016 by BHS Legal

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 – interpreting their meaning and entitlements

Posted on 1 Oct 2016 by BHS Legal

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 – leaving them an inheritance

Posted on 17 Mar 2015 by BHS Legal

Updated 14 October 2019.

Nieces and nephews – the general assumption

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 →

Distribution problems for executors when relatives cannot be located

Posted on 20 Jan 2015 by BHS Legal

Leaving beneficiary details helps streamline estate administration

Not everyone lives and works in the community in which they grew up, surrounded by family and friends.

Many leave to pursue opportunities elsewhere, maybe never to return. Family ties may weaken in time, and contact is lost. What if you want to leave them something in your will?