No Comments

Intestacy rules for distribution of deceased estates

The order of death can significantly impact the distribution of estates, as demonstrated in NSW Trustee and Guardian v State of New South Wales [2015]. This case highlights the importance of having a lawyer prepare a will for you and the necessity of regular will updates.

In this case, a mother and son were found dead in their shared home, both without a will. The persons entitled on intestacy would be determined by the sequence of death. The mother was a widow, had not remarried or entered into a defacto relationship since the passing of her late husband.  The son was unmarried and there was no record that he had ever had any children. [...]  READ MORE →

No Comments

Does Marriage Affect Your Will?

DOES MARRIAGE  INCLUDING SAME-SEX MARRIAGE AFFECT YOUR WILL?

Marriage can cause complications for existing Wills.

If a person marries after making a Will, it will be revoked. Some exceptions apply, including:

  • gifts in the Will from a person to a spouse who they marry;
  • an appointment as executor or whom the testator is married to at the time of his or her death.

Same-sex marriage in Australia has been allowed since 9 December 2017. The same laws apply in relation to Wills of same-sex couples. A same-sex marriage may make a past Will invalid subject to the exceptions mentioned above.

Considering the difficulties which arise in relation to marriage and Wills, it is important that you draft your Will in contemplate of marriage to prevent possibility of a will dispute in the future. Importantly, a Will made in contemplation of a particular marriage is not revoked by that marriage. [...]  READ MORE →

No Comments

Capacity Issues In Estate Planning

Establishing legal capacity is crucial, especially when contesting a will. It’s not always as straightforward as it sounds. The Supreme Court case of d’Apice v Gutkovich illustrates this complexity. In this case, Irene Abrahams (the deceased) was found to have the capacity to make a will, despite a prior decision by Guardianship Tribunal indicating she could not manage her affairs.

What is Legal Capacity?

Generally, legal capacity requires a person to:

  • understand the facts involved regarding the decision to be made;
  • comprehend the choices available;
  • Evaluate those choices and their likely effects;
  • Communicate the decision clearly.

It’s important to note that legal capacity requirements vary depending on the context. For wills, the foundational principles were established in the 1870 case of Banks v Goodfellow, which has withstood the test of time. [...]  READ MORE →

No Comments

WILL DISPUTES IN NSW

WILL DISPUTES IN NSW – FAMILY PROVISION CLAIMS

 When a family member passes and you have been left out of the will or if you think that you have not been adequately provided for in the will, you could consider disputing the will by making a family provision claim. Making a family provision claim would enable an eligible family member to receive a greater share of the deceased’s estate. We are observing an increasing rise of will disputes and contested estates.  

Who is Eligible to make a Family Provision claim?

In New South Wales, section 57 of the Succession Act 2006 allows certain people to make a family provision claim, for provision from a deceased person’s estate. The categories of “eligible persons’’ include: [...]  READ MORE →

No Comments

Notional Estate – what does it mean

Notional Estate – what does it mean?

Introduction

Will disputes, matters relating to distribution of a deceased estate, contested wills and the rights of beneficiaries are issues that an experienced will lawyer understands.

 For various reasons, a will maker may form an opinion that they are not morally obligated, or duty bound to make provision for certain persons in their will. For example, where a will maker has been estranged from their child for several years, they may not feel duty bound tomake any provision for this child.

 In the context of blended families, will makers often are faced with hard decisions about who they would like to benefit more from their estate given the competing financial needs of adult children from their previous relationship and their current spouse. Having made those hard decisions, asking an experienced wills lawyer to prepare the will or will update will lessen the risk of a successful will dispute. [...]  READ MORE →

No Comments

Will Disputes and Testamentary Capacity

Will Disputes and Testamentary Capacity

The term testamentary capacity is relevant in will disputes as it concerns the question of the Will maker’s intention at the time of conveying their wishes. There is a long standing principle in all aspects of law that without capacity, a person is not capable of understanding the consequences of their actions and therefore is unable to instruct a solicitor.

Through the case of Aleta Gooley v Brett Gooley (2021), the court explains that lawyers when receiving instructions from a client making a will have a role to play in determining whether the will maker or testator has capacity. An experienced solicitor is used to dealing with people making wills and is attuned to the red lights that flash when a person who is of suspect capacity comes across their path, and therefore provides valuable evidence of the Testator’s testamentary capacity. [...]  READ MORE →

No Comments

Will Disputes

Joint Property and your Will

Most Will Disputes occur from contention over how the Estate was supposed to be divided among the beneficiaries, rather than how the law entitles those to the assets in the Estate.

The primary example being a property purchased in a couple’s names as Joint Tenants. Upon the death of one owner, the law of succession states that the property is automatically passed to the joint owner on title. If the deceased’s Will states that their share of the property is to be passed to their beneficiaries rather than what the law of succession demands, this is how Will Disputes occur. [...]  READ MORE →

No Comments

Is my sibling entitled to more inheritance than me?

In some circumstances, there are actions that you might be able to take if you disagree with the distribution of the estate. These are commonly bringing a will dispute or contesting a will through a family provision claim.

An unequal distribution might not have been intended by the testator of the will. A will dispute or challenge can be brought by you, if you have standing. See our previous blog HERE on standing and non-family members disputing a will for more information.

One example of this is Hobhouse v Macarthur-Onslow [2016] NSWSC 1831. The deceased, Lady Dorothy Wolseley Macarthur-Onslow, executed a will in 1988 which provided for an equal distribution of her estate between her two children; Lady Hobhouse, the plaintiff, and Mr Macarthur-Onslow, the defendant. In 2002, Lady Macarthur-Onslow was being treated for dementia. In 2004, she executed another will, which was to be the final one before her death in 2013. The effect of the second will was to permit Mr Macarthur-Onslow control to distribute a substantial portion of the property of the deceased, including to himself. The plaintiff initiated a will dispute on the basis of a lack of capacity of her mother to execute the will. [...]  READ MORE →

No Comments

Can a non-family member initiate a Will dispute?

Not everyone can initiate a will dispute. A person intending to bring an action for a will dispute must meet the requirement of standing.

A person is considered to have standing where he or she has an interest in the estate of the deceased. A person who may satisfy the requirement of standing might include a person who was entitled to share in the estate under the valid will preceding the disputed will.

However, even where a person may be unable to dispute a will due to their lack of standing, they may be able to contest a will. [...]  READ MORE →

No Comments

Initiating a Will Dispute due to Mental Capacity

Whether the person who made the will had the requisite mental capacity is one of the grounds for initiating a will dispute.

Mental capacity is called ‘testamentary capacity’ in the context of wills and is required for a person to make a valid will. The test for mental capacity comes from Banks v Goodfellow (1870), which requires a person making a will to:

  • understand the nature of the act and its effects;
  • understand the extent of property of which he or she is disposing;
  • be able to comprehend and appreciate the claims to which he or she ought to give effect and that no disorder of the mind would bring about a disposal of it which would not have been made otherwise.

Should a person fail to meet these requirements at the time the will is executed, they will lack the requisite mental capacity. A will made by a person lacking mental capacity is void. [...]  READ MORE →