“Gift over” in a will to a substitute beneficiary
A gift over in a will is when the person designated to receive it has died, the gift then passes over to a substitute person, if so named to take.
Administration
“My issue” – considering the meaning of “issue” in wills
What is the legal meaning of issue, remoter issue and similar terms in wills? Does it mean children? Are all descendants entitled to inherit in the same way? Find our more about this flexible term “issue” here.
Contesting a will – time limits on making an application
Time limits apply under family provision law within which to contest or challenge a will. If this time has passed it is possible to apply to the Court for an extension, but whether it is granted will depend on the circumstances. In this case the application was unsuccessful, being some years out of time.
“Contrary intention” in succession law and will-making
Image: Coat of Arms, Broken Hill Courthouse, NSW, by B Stead.
Many provisions in state and territory legislation on succession and wills allow for a willmaker to express a contrary intention in their will to override 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.
Meaning of stepchild when contesting a will
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.
Lost or missing will – where to enquire?
Missing wills or a lost will seem to be more common than one would think. Some people store important personal documents in unusual places without informing their executor where. Here are some suggestions on next steps after a thorough search has not been successful.
Personal items or chattels in a deceased estate
Personal things can have great sentimental value, and depending what they are, maybe commercial value.
Personal possessions – interpreting their meaning and entitlements
Leaving gifts of personal possessions seems easy to do – until someone else has to interpret what was meant in the words used in the will.
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 …
A mistake found in the will – can it be fixed or rectified? Read More »
Nieces and nephews – leaving them an inheritance
Who our ‘nieces and nephews’ are, if we have them, may seem so obvious as to not need mentioning, after all it is all in the family and identifying them should not be a problem. Leaving a gift to be divided among “nieces and nephews” by will then, should be a simple matter. Not always, as circumstances and relationships may change from the time a will is made to the date of death.
Probate – a grant of probate – what is probate?
Probate is the official process to establish or prove, whether a deceased person’s will or testamentary document is valid and intended to be their last will.
A grant of probate is the document issued by the Court of Probate after completion of an 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. It is also official recognition that the will (which may include codicils) was proved to be valid by the Court and intended to be their last will. This article is about probate, which only applies when a will was left.
Court costs when contesting a will for family provision – who pays?
If, despite all efforts to find a solution, including mediation, you are thinking of making a claim for family provision under a will, don’t assume that your costs will be paid out of the estate; at least in New South Wales.
Distribution problems for executors when relatives cannot be located
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?
Residue of a deceased estate, the residuary estate – what is it?
The residue of a deceased person’s estate is basically what is left over after the payment all costs in connection with the estate. That is, payment of funeral expenses, costs incurred in the administration of the estate, payment of the deceased’s debts, discharge of any liabilities and the distribution of any specific gifts made under the will.
Intestacy rules – who is entitled to inherit?
If you die without leaving a will you are said to die “intestate”. In the absence of instructions left in a valid will, who will inherit your property? Succession law contains strict rules to deal with this problem.
Who can see the will of a deceased person & can you obtain a copy?
To see the contents of a deceased person’s will can be difficult if you are not the executor. But in some states if you know who has the will, a copy, or other testamentary document, the law requires them to allow people who are entitled to have access, to inspect or see the will; and have a copy of it. Copying is at their own expense, but costs must be reasonable.
A family tree can be useful, with or without a will
A family tree outlining close family/next of kin relationships is useful in preparing to make a will, and as a reference in situations of intestacy.
Per stirpes, per capita and deceased estate distribution
Per stirpes and per capita refer to the ways in which a person’s estate can be distributed among their descendants (issue). The point is to take into account any family who may have predeceased them.
Understanding how per stirpes and per capita work is important both in making a will and for legal representatives interpreting one.
Issue and children in wills – say what you mean
Language can be confusing. The way that certain words are used in a will may cause difficulties in interpreting what the willmaker actually meant, but unfortunately may not come to light until they have passed away. Two such words are “children” and “issue”.