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).
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.
Many 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.
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?
Young, a town on the south-west slopes of New South Wales was settled in 1826. See location map below. Known initially as Lambing Flat, the discovery of gold in the 1860s soon attracted large numbers of miners and prospectors to the area. However tensions among them led to riots and unrest. Eventually Lambing Flat became known as Young.
Under Australian succession law, marriage generally cancels an existing will, subject to some exceptions.
Getting married is an important life event. There is a lot to organise, in addition to making arrangements for the wedding ceremony itself.
However, if research on will making in Australia is any guide, the making or updating of existing written instructions as to what is to happen on death following the changed personal circumstances, probably won’t feature highly on the list of things to do.
Yet attending to making a valid will taking into account changed or soon to be changed circumstances is important. If not, the rules of intestacy would apply on death, and these may not produce the desired outcome.
Who can witness or attest the signing of a will for it to be valid in law? And what must they do?
The legal formalities to make a valid will require the will-maker to sign their will in the presence of at least two people, acting as formal witnesses to the event. Executing a will in front of witnesses fulfils a protective function.
Witnessing a will – key points:
1. The will-maker must sign the will first in front of two or more witnesses, all present at the same time and in the same place. 2. Witnesses must be mentally competent and be able to see the will-maker make their signature, (the attestation) or other sign as appropriate. 3. At least two witnesses having attested the will then sign their names; in confirmation that the will-maker’s signature, made in their presence was genuine. 4. Anyone likely to inherit under the will, ie a beneficiary, including their spouse/partner should not witness it – although the law has changed in some states and in others exceptions are permitted. Seek legal advice.
Meaning of “nieces and nephews” – the general assumption
Our 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, when the time comes, 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 →
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 →
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 made it clear that the expectation that the costs of making a family provision claim will automatically be paid out of the estate, has been “thoroughly discredited.”1
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? More →
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.