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 …
Probate applications require production of the original will. But what if the original can’t be found? In certain circumstances a Court will recognise a lost will and admit a copy of it to probate.
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.
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.
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.
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 …
Estranged daughter An estranged daughter contested her mother’s will. She and her sister were the only children of the deceased.1 Contesting the will of a parent is highly emotional, stressful and damaging to family relations. As observed by the Supreme Court of New South Wales: The case provides yet another example of the high level …
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 things can have great sentimental value and depending what they are possibly significant commercial value. It is helpful to leave instructions as to what they are and who you would like to have them. Read more on personal items and succession law >>
personal items, belongings or effects and similar expressions are often used by willmakers to leave instructions on what they want done with such things after they die. Those responsible with this are the people the willmaker has personally appointed and named in their will to represent them, their personal representatives or legal personal representatives.
The word “issue” is a legal term meaning all of a person’s descendants; not just their children. It is easy to overlook this and the potential unwanted consequences for what is intended, if not used correctly when working out wording in a will.
Finding a mistake or error in the will of the deceased can cause extra difficulties in sorting it out. 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.
Sometimes a clerical error or some other aspect about a deceased’s will means that practically speaking what the deceased intended doesn’t work out. Fortunately all is not lost. Succession legislation provisions give the Court a power to rectify the will to give effect to the deceased’s intentions if the Court is satisfied beyond reasonable doubt that the will does not. An application to the Court for a rectification order must be made within twelve months in NSW. An extension of time may be possible in special circumstances and if the estate has not been distributed. For an application to succeed there must be clear and convincing proof.
Renouncing probate of a deceased estate is when a named executor in the will does not wish to take on the role. It is not compulsory. To resign you complete a form provided by the Probate Court in your state or registry, links in this article. These are free to download. Complete the form, sign in front of a witness where required, date it and lodge at the Probate Court Registry. There may be a small fee to lodge the form, contact the Probate Registry. If you want to resign do it as soon as practical.
There is no requirement that an executor must accept the executorship role, even if it was agreed to do so. But relinquishing executorship should be done as soon as practical if you don’t wish to act and have not dealt with the estate, (intermeddle). You can resign your appointment as executor by renouncing your right to probate of the deceased’s will, that is you renounce 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.
Keeping an original will safe and secure is one thing, (for more on storing a will click here), but as a practical matter, it is also important to let executors know, or family or a trusted friend, of its whereabouts.
But what if for some reason an original will cannot be located? What can be done? Does it mean the intestacy rules have to apply?
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.