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Deceased estate

Home made will – a good idea?

A home made will is one prepared by the willmaker themselves, perhaps using a “will kit” and without without the services of a lawyer and the benefit of individual legal advice. This may seem an economical and convenient approach to will-making.  While a lawyer’s costs are avoided at this step, there is the  potential is …

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“Gift over” in a will to a substitute beneficiary

gift over, substitute beneficiary, making a will, gifts in a will, wills, deceased estate, will making, beneficiary dies,
An outline of a how a gift over works in a will. 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.The substitute beneficiary only inherits if the main beneficiary has already died, not survived the deceased or died before attaining a vested interest.

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Early inheritance issues and family provision

sandstone carving, Parkes Courthouse, New South Wales, 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. However things didn’t go to plan.

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Testamentary freedom and family provision in Australia

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Testamentary freedom is being free to dispose of your property how and to whom you wish. One Supreme Court judge said that this freedom of testamentary disposition is 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.

Time limits apply to contesting a will

time limits, family provision, family provision law, farm, Western Australia, contest a will, 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.

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“Contrary intention” in succession law and will-making

Image: Coat of Arms, Broken Hill Courthouse, NSW, by B Stead.

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

 

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Meaning of stepchild when contesting a will

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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Stepchild contesting a step-parent’s will – Queensland

stepchild, willshub, step-parent, family provision, In a Queensland case a stepchild was left out of the will of a step-parent. He subsequently sought provision from his step-mother’s estate. She had no natural children of her own. Her husband, the applicant’s father, had pre-deceased her. The applicant was her only step-child. In another situation a claim was brought by seven step-children for adequate provision out of their deceased stepmother’s estate.

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Lost or missing will – where to enquire?

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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.

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Probate litigation costs

Court costs, probate litigationIncreasingly, it is not always automatic that costs of challenging a will for more provision will be paid out of the deceased’s estate. Courts may take into account the conduct of the litigants towards each other in regard to their efforts in resolving their differences before hearing.