Testamentary freedom in Australian law and family provision claims

Being free to dispose of your property how and to whom you wish, that is the freedom of testamentary disposition is, as a Supreme Court judge said a “prominent feature of the Australian legal system.   Its significance is both practical and symbolic and should not be underestimated.”1 Of course, like all freedoms it should be used reasonably and not abused. 

An example of the significance of this feature being applied was in a situation where adult children were contesting their mother’s will for more provision.  The Court said:

“…a testator is entitled to be unequal in the treatment of her children. Fairness and equality are not required by the law. Within the limits of the law, testators may dispose of their estates as they see fit. Adult children have no automatic right to share in the estate of a parent. Nor do they have an automatic right to equality between them. That may be the system in European countries, including possibly in the Balkans, but it is not the law in Australia. As I have observed on several occasions, subject to the family provision sections of the Succession Act, freedom of testamentary disposition remains an integral part of our law:….”

And following on the Judge added:

“Related to that point is a principle, …..that the courts naturally respect and give deference to the considered judgments of apparently rational and sensible testators.”2

The Court has a wide discretion in its role deciding claims for family provision. In this respect it is worth noting what another judge has said and cited subsequently3:

“The Court’s roles is not to reward an applicant, or to distribute the deceased’s estate according to notions of fairness or equity.  Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant.  Rather, the Court’s roles is of a specifc type and goes no further than the making of “adequate” provision in all the circumstances for the “proper” maintenance, education and advancement in life of an applicant.””

 


1. Goodsell v Wellington [2011] NSWSC 1232, per Hallen J.
2. Kraljevic v Kraljevic [2017] NSWSC 225,
per Pembroke J.
3. Hinderry v Hinderry [2016] NSWSC 780,
per Bryson J.

B Stead
BHS Legal
21 June 2018, updated 12 February 2019

Important notice: This article is intended for general interest and information only. It is not legal advice, nor should it be used as a substitute for legal advice. Always consult a legal practitioner and/or other professional for specialist advice specific to your needs and circumstances, and rely on that.

© BHS Legal

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Contemplating marriage and making a will

contemplating marriage, will making, marriage, testamentary, getting married, make a will, Normally under Australian succession law marriage cancels a will ( 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.
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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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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.

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Risks

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“The range of “risks” to which a will maker, his or her property, interested parties or members of the legal profession may be subject is probably infinite in its dimensions.  Risk cannot be eliminated from life, or, it seems, from death.

The Hon Justice Lindsay, Equity Division, Supreme Court of New South Wales,
Seminar presentation to the Succession Law Committee of the Law Society of New South Wales, 2013.

 

Meaning of words in a will – resolving differences in a farmland context

meaning of will, farm succession, farm inheritance, meaning of plant and equipmentThe meaning of words and phrases used by a willmaker when leaving a specific gift may adequately express their intentions, at least to them at the time.  However sometimes matters connected with the gift may arise down the track during administration of the estate.

These may generate uncertainty for executors as to the right course of action when distributing the estate to the beneficiaries according to the deceased’s will. In a recent Western Australian case1 the executors sought directions from the Court concerning the interpretation of a clause disposing of farmland.

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Leaving an unsigned will – second thoughts or intended last words?

unsigned will, informal will, invalid will, unexecuted will, testamentary intentions, will-makingSometimes an unsigned will is left in situations where the willmaker, in consultation with lawyers, has been in the process of making a new will, but died before the requirements to make a valid legal document were completed.

Leaving such a testamentary document raises important questions. Did the deceased approve of the contents of what is a draft will, and so intended it to be their last will –  but simply didn’t get around to executing it according to the legal formalities? Or were they unsure and wanted alterations?  Can an unsigned will, that is an unexecuted will, or informal will, as lawyers often call them, even be admitted to probate by the Court? The Court’s dispensing powers are discretionary – it depends on the circumstances in each case.

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

Step-grandchildren, will-making, descendants, childrenSome 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.

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Personal items or chattels in a deceased estate

personal items, personal effects, belongings, deceased estate, will, willmaking, testator, personal thingsPersonal 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

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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Getting married – does it affect a previously made will?

Under Australian succession law, marriage generally cancels an existing will, subject to some exceptions.

MarriageGetting 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.

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Signing a will, having it witnessed – who can be a witness & what is required?

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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.  An unsigned will is not legally valid.

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.

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Signing and execution of a will – same thing?

Signing and execution mean different things

Signing a document is not the same thing as having to execute it.  We might talk about signing a will but technically, a will is required by law to be executed.  So what does execution mean?

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Adult children claiming provision from their parent’s estate – some things to consider

By B Stead

family provision, adult children, estrangement, equality, estate claimAdult 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

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


missing will, misplaced will, lost will, Keeping an original will safe and secure is important, especially where there is the possibility that it maybe tampered with or destroyed by others (see storing a will). A will does not come into effect until the death of the willmaker. As a practical matter, for when it is required, it is  important to let executors, or trusted family or friend of its whereabouts.

Despite best intentions, sometimes an original will cannot be located.  After thorough searches what else can be done? Some additional enquiries which may be made in finding a missing will are discussed here. If a deceased person has not left a valid will or in some circumstances a copy of it acceptable to the court, the intestacy rules apply.  More