“Issue children” – some issues with words

For more on this topic see: ‘‘My issue” – considering the meaning of issue in wills’ 

 
 
 

“Issue children” was used to describe a class of beneficiaries in a will.  But it wasn’t clear what was intended and ultimately required resolution by the Court.   We make a will so as to provide for our loved ones; to be able to choose who will inherit our property.  But writing down our intentions so that they are clear and unambiguous for others when we are no longer around, is not easy.   For example the words “issue” and “children”. The word “issue” is a legal term meaning all of a person’s descendants; not just their children.  More considerations on its meaning can be read here.

In a recent case a gift in remainder of real estate under a will had to be distributed.1 The will-maker had died in 1948. The two trustees of the estate were the surviving children of the will-maker’s only son, deceased.  Their sister had pre-deceased their father, leaving children of her own.
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Renouncing or resigning from executorship and probate – when an executor does not wish to act

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Updated 5 October 2019

Renouncing probate is what you can do if you are named as executor in a deceased person’s will, and do not want to take on the role.  You are not obliged to, but you need to take steps to put that into effect as soon as practical.

Need help?   For executor services you can find a lawyer or law firm by contacting the law society in your state/territory for referrals, click here, or the public trustee here.  Corporate providers such as banks also offer executor services.   

Can an executor resign?
There is no requirement that a named executor in a will  must accept the role of executorship, even if you had agreed with the willmaker that you would.

So in other words, can you resign as executor of an estate? Yes, providing you have not intermeddled in the estate already, see further below on what intermeddling means.

If you don’t wish to act when the time comes, and you have not dealt with estate property, you can give up the right to do so.  It means you give up your appointment as an executor, commonly called renouncing probate. In renouncing probate you are renouncing the executorship, in other words resigning.  It means you renounce or give up your right to apply for probate of the deceased’s will; sometimes expressed as to ‘renounce probate’.

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Signing a will, having it witnessed – who can be a witness & what is required?

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Who can witness or attest the signing of a will for it to be valid in law? And what must they do?

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.  Executing a will in front of witnesses fulfils a protective function.  An unsigned will is not legally valid.

Witnessing a will – key points:

1. The will-maker must sign the will first in front of two or more witnesses, all present at the same time and in the same place. 
2. Witnesses must be mentally competent and be able to see the will-maker make their signature, (the attestation) or other sign as appropriate.
3. At least two witnesses having attested the will then sign their names; in confirmation that the will-maker’s signature, made in their presence was genuine.
4. Anyone likely to inherit under the will, ie a beneficiary, including their spouse/partner should not witness it – although the law has changed in some states and in others exceptions are permitted.  Seek legal advice.

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Nieces and nephews – leaving them an inheritance

Updated 14 October 2019.

Nieces and nephews – the general assumption

Nieces and nephews in wills, nieces and nephews, whole blood, half blood, ancestors, common ancestorNieces and nephews are the children of our brothers and sisters, this hardly needs saying.  If someone wishes to leave a gift to their “nieces and nephews” in their will, it should be a simple matter to identify which individuals are a niece or a nephew and so entitled to share in the inheritance. However circumstances and relationship may change from the time a will is made to the date of death.
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Probate – a grant of probate – what is probate?

Administration of a deceased person’s estate – proving the validity of a will

By B Stead
probateProbate 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 the 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. More

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

Left out of a will or seeking more –  who can apply for provision?

family provision, eligibile person, will, deceased estate, challenge a will, contest a will, Family provision laws were introduced to remedy situations where willmakers failed to leave adequate provision for the proper maintenance, support and advancement in life for close family, usually spouses, partners and children.

The legislation gives the court1 discretionary power to order provision from a deceased person’s estate, where found to be inadequate, to “eligible” applicants, under certain circumstances. It is not automatic.

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Residue of a deceased estate, the residuary estate – what is it?

What does the ‘residue’ or ‘to give the residue of my estate’ mean?

 

residue, deceased estate, wills, making a will, administration, probate The residue of a deceased person’s estate is what is left over after the payment of all expenses in connection with the estate.

Expenses include payment of the funeral, costs incurred in the administration of the estate, payment of the deceased’s debts, the discharge of any liabilities of the deceased, and the distribution of any specific gifts made under their will.

The residue or residuary estate is property of the deceased not disposed of by the terms of their will.

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Codicils: what is a codicil, making minor changes to a will

Updated 12 June 2020.

What is a codicil to a will?

A codicil is a short, additional document used to make minor changes, amendments or alterations to an existing will. To be legally valid the codicil document must be signed and executed in front of witnesses in the same way as for a will. Once completed the codicil is kept with that will.  More than one codicil may be made.  Unless the change is minor and straightforward it is preferable to make a new will. 

‘Codicil’ comes from Latin meaning a letter or note.  It was also referred to as a ‘little book’ in 17th century England. But the idea of making a testamentary addition began in the ancient Roman civil law.  Later in early English law it started being used in situations where a testator didn’t have time to make a proper solemnised will and testament.   

Together with the will document  a codicil also being a testamentary document only operates when you die. 

Codicil to an existing will or make a new will?

A codicil can be a cost-effective way to make a minor change to a will.  such as substituting an executor.  However if the will was made a long time ago, it may be best to make a new will altogether so there is no inconsistencies.  Lawyers tend to prefer that a new will is made so as to avoid potential difficulties down the track with interpretation and the extra costs and delay that arise in resolving them.  Seek professional advice.

This article looks at:

  • What is a codicil?
  • Making a legally valid codicil
  • Codicils must refer to the date on the correct will
  • Revoking part of a will by a codicil
  • Reviving an earlier will by a codicil
  • Meaning of ‘will’ includes a codicil
  • How must codicils be signed?
  • Storing a codicil
  • Potential problems
  • An undated, unsigned ‘homemade’ codicil 

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Storing a will – ensure it is safe and secure

Storing a will for safekeepingstoring a will, will storage, safe custody for a will, willmaking, deceased estate,
Wills are important private and confidential documents which take legal effect on the death of its maker.  An original will should be stored in a safe and secure place after being signed and witnessed.  Ideally the place should be fireproof, and protected from tampering or destruction. 

Willmakers should consider their personal circumstances, family and other relationships when considering storage options. In some situations storing a will at home is not advisable if it is likely persons adverse to what it contains can access it. 

And make sure you inform your nominated executors or legal personal representatives of your original documents. 

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Intestacy rules – who is entitled to inherit?

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Dying without a will (intestate) – who inherits?

Intestacy is when you die without leaving a will.  You are said to have died “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.

This is an outline of the application of the intestacy rules. They specify the order of entitlement as to who inherits and in what proportion, as well as the provision of a sum of money (statutory legacy) for the spouse or partner.   More

Pets – making provision for their care by will

Pets are family – make a plan for their care

Pets in wills, cats, dogs, wills, provision for animals, WillsHub

Who will look after me?

Pets and companion animals are important parts of our lives and family. Legally a pet is regarded as property, not a ‘person’ (although we might think of them that way!), belonging to their owner.  Being property means that a pet cannot hold title to property and so cannot take a direct gift of money as a beneficiary under a will. 

As owners, it is important to consider options for their care should you become unable to continue and for when you die.

Expressing your wishes as to what you would like done and documenting a plan for their welfare is helpful to family, friends and your executors.  Make sure you let them know.

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Enduring power of attorney – some considerations

By B Stead

An enduring authority

Legislation in each state and territory provides for a person to make ‘enduring’ arrangements, set out in a formal legal document, (callled an enduring power of attorney), where they name someone else to make certain decisions on their behalf, in the event they become incapacitated and unable to continue managing their affairs.

An enduring power of attorney is a powerful document 

In considering the making of an enduring power of attorney in the personal and family context, a Judge of the New South Wales Supreme Court said the following:

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Who can make a will?

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Who can make a will to dispose of their property?

Those who can make a will, change or cancel (revoke) a will under state and territory legislation must:

  • be an adult, (18 years and over); and
  • have the required mental capacity in regard to their testamentary intentions, meaning:
    • know (generally) what they own;
    • who they want to give it to, any dependents to be provided for;
    • be able to weigh up the consequences of their choices, potential claims;
    • understand that what they are doing is disposing of their property on death and its effects;
    • understand that on signing their will document, what it states will become enforceable when they die.

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When disposing property by will check the ownership – what can and can’t be disposed of by will

Disposing property – what can be disposed of by a will and what can’t – property ownership and control issues

disposing property by will, what property can be disposed of by will, Property ownership, will making, company shares, units, trust,

Only personally owned property may be dealt with by a will.

Disposing property by will, in the will-making process requires considerations to be given to what you own in your individual name, as opposed to what you might control, see further below.  As only property owned in a personal or individual name can form a deceased estate, it is only this which can be transferred by will, (or the rules of intestacy).

Other property may be owned in the name of a company or trust.  In these entities an individual may have control through shareholdings or a power of appointment.  When it comes to making a will, it is important to remember that such assets won’t form part of a person’s deceased estate and therefore cannot be disposed by their will.  See the table below for examples of what are estate (disposable by will) and non-estate assets. Making a list of property, money and things to be disposed of and who owns what is important. More