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Family provision

Australian law on leaving adequate provision by will for family and dependents after you die.

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Home made will – a good idea?

A home made will is one prepared by the willmaker themselves.  Maybe using a “will kit” or something found online or a digital recording.  However made a home-made will is composed 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 …

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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

testamentary freedom in Australia, freedom of testation, family law,

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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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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Severing a joint tenancy unilaterally

Why sever a joint tenancy? Severing a joint tenancy is relevant to joint co-owners passing on their property interests to their chosen descendants.  Owning property with others in co-ownership can be either as joint tenants or tenants in common.  The consequences of who inherits a co-owner’s share on death are different.  It is important to …

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Adult children claiming provision from their parent’s estate – considerations

 

family provision, adult children, estrangement, equality, estate claimAdult children who feel they have not been provided or left out of their parent’s will altogether, may wish to make a claim for provision out of 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.

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Illegitimate children, ex-nuptial children – can they inherit?

illegitimate children, ex-nuptial children, contest a will, challenge a will, inheritance, inheritIllegitimate children are those born outside of marriage, or out of wedlock, in older terminology.  These days the word “illegitimate” has largely been replaced in law by the term “ex-nuptial” – nuptial referring to marriage.  Either way, can an ex-nuptial child inherit from their natural parents?  Or contest a natural parent’s will for provision out of their estate? What if no will was left?  

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Family provision – who is eligible to claim from a deceased estate?

family provision, eligibile person, will, deceased estate, challenge a will, contest a will, In succession law the court has discretionary power under family provision legislation to order provision from a deceased person’s estate to “eligible” applicants and in certain circumstances. It is not automatic.

The legal rules were introduced to remedy situations where willmakers failed to leave adequate provision for close family and certain other dependents as defined. It is not for second bites at the cherry. The court has wide power in deciding who pays costs of proceedings.

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Updating a will to avoid unintended outcomes

 

the importance of updating a will, why update a will, consequences if a will is not updated,

Updating a will might seem a troublesome chore, but circumstances can change from the time it was made. The changes might produce unintended and unwanted outcomes in the event of death. Therefore reviewing a will is important to keep its contents in line with intentions.  Regularly reviewing your will is important so it reflects your intentions.

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Why make a will and what can a will do?

why make a will, make a will, making a will, dying without a will, intestateWhy make a will and what can it do? Dying without leaving a will, or leaving an invalid one, is to die intestate. Dying intestate means property left by the deceased, their estate, is distributed according to the intestacy law. The intestacy law has been prescribed by legislation as the ‘default’ rules to apply in these circumstances. The problem is that the intestacy formula for distribution may not produce the desired outcome.

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What is a will?

A will is a testamentary document, often referred to by lawyers as an ‘instrument’, setting out what a person intends to have happen to their property, (real and personal), and other matters, when they die.

It is the legal way to record a person’s instructions and wishes on how they want their property distributed on the event of their death, and who is to responsible for carrying out those wishes.

Because it is to take effect only on death, a will is referred to as being ‘testamentary’.

A testamentary document or instrument is one which its writer intends, at the time of writing it, to come into effect when they die, and not before. It is where a person sets out their intentions for the distribution of their property when they die.

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Per stirpes meaning & per capita in deceased estates

per stirpes, per stirpes distribution, meaning of per stirpes, meaning of per capita, estates, deceased estates, deceased estate distribution, estate distribution, meaning of per capita, per stirpes,

 

Per stirpes (Latin, meaning by the stock) and per capita (by the head) are ways in which a person’s estate can be distributed among their descendants.  They are terms referring to the different ways of distributing property among a group or class of people.

Issue and children in wills

 

the meaning of issue in wills, deceased estates, the legal term issue, children, descendants, offspring

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”.

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