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Testamentary freedom and family provision in Australia

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 …

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Contemplating marriage and making a will

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.

Contesting a will – time limits on making an application

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.

“Contrary intention” in succession law and will-making

Image: Coat of Arms, Broken Hill Courthouse, NSW, by B Stead.

Broken Hill Courthouse - Coat of Arms, early Australian courthouses, Australian legal history, Australian Colonial courthouses,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.

Risks

“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 …

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Meaning of words in a will – resolving differences in a farmland context

meaning of will, farm succession, farm inheritance, meaning of plant and equipment 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.

Leaving an unsigned will – second thoughts or intended last words?

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 …

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Meaning of stepchild when contesting a will

stepchild, family provision, testator's family maintenance,

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.

“Issue children” – some issues with words

issue, issue children, meaning of issue, legal meaning of issue, issue and children, children, wills, will,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.

Signing the wrong will by mistake

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. Putting these intentions into writing in their individual will …

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A mistake found in the will – can it be fixed or rectified?

Sometimes it is not until after a will-maker dies, when their executor is applying for a grant of probate, or seeking to administer the estate, that some kind of administrative mistake is discovered in the will.  For example words used in the will, or some mis-description, operate to prevent the will-maker’s intentions from being put …

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

WitnessThe 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 ?

Signing and execution of a will – same thing?

witnessing a will, witnesses, attest, sign, make a willSigning a document is not the same thing as having to execute it. We might talk about signing a will but technically, a will is required by law to be executed. So what does execution mean and what has to be done to execute a will for it to be legally valid?

Adult children claiming provision from their parent’s estate – some things to consider

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.