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.
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?
Normally under Australian succession law marriage cancels a will (that is revokes the will) – unless the will was made in contemplation of marriage. In some states and the ACT testamentary arrangements can be made in contemplation of entering into a registered relationship or partnership.
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.
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.
If the words “descendants” and “children” are being used to describe beneficiaries in a will, is it intended by that any step-grandchildren are included?
When no will is left by a deceased person they are said to have died intestate. Dying intestate means no will is left setting out what is to be done with the deceased’s property. Who is entitled to take their estate?
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 >>
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.
Marriage affects the legality of a previously made will.
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.
Signing a will in front of witnesses fulfils a protective function. Can anyone witness or attest the signing of a will? And what must they do? Read more >>
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.