What is a home made will? Generally this means a will you’ve prepared yourself, whether or not you use a “will kit”. In other words, the will has been prepared without the services of a lawyer and the benefit of individual legal advice. This may seem an economical and convenient approach to will-making – which …
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.
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? Find our more about this flexible term “issue” here.
Opposing a grant of probate, or contesting it you need to be able to show that you have a legal interest in the deceased estate.
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.
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.
Updated 29 November 2020 Testamentary freedom is being free to dispose of your property how and to whom you wish. The freedom of testamentary disposition is, as one Supreme Court judge said a “prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated.”1 Of course like …
Testamentary freedom and family provision in Australia Read More »
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.
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.
“The range of “risks” to which a will maker, his or her property, interested parties or members of the legal profession may be subject is probably infinite in its dimensions. Risk cannot be eliminated from life, or, it seems, from death.“ The Hon Justice Lindsay, Equity Division, Supreme Court of New South Wales, Seminar presentation …
The meaning of words and phrases used by a will-maker when leaving a specific gift may adequately express their intentions, at least to them at the time. However sometimes matters connected with the gift may arise down the track during administration of the estate, raising questions of interpretation.
Updated 22 November, 2020 Sometimes an unsigned will is left in situations where the willmaker, in consultation with lawyers, has been in the process of making a new will, but died before the requirements to make a valid legal document were completed. Leaving such a testamentary document raises important questions. Did the deceased approve of …
Leaving an unsigned will – second thoughts or intended last words? Read More »
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.
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.
Elder abuse can take different forms. It can range across financial, psychological, physical and emotional neglect causing harm and distress to the older person. It may be intentional or not. Critical issues having potential to generate abuse of older ones involve legal capacity, and undue influence in entering into guarantees for family members and others, and reverse mortgages. Carers misusing their influence is another area. Financial abuse can surface in various ways, one in particular is placing pressure on an older person to make or change their will.
Many couples own their home together as joint tenants under a joint tenancy. Under a joint tenancy an important legal consequence to remember with this type of property co-ownership is the legal right of survivorship. The right of survivorship means that when the first owner dies, their interest in the property is automatically absorbed so that …
Updated 15 December 2020 An estranged daughter, one of two sisters and the only children of their deceased mother, were engaged in legal proceedings in a contest over their mother’s deceased estate.1 In The Supreme Court of New South Wales, it was said that The case provides yet another example of the high level of …
Estranged child left out of a will – claiming family provision Read More »
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?