The deceased died tragically by her own hand in 2021. By law, certain formalities are required to make a valid Will. Firstly, a Will must be in writing. Secondly, a Will must be signed. Thirdly, the person making the Will needs their signature to be witnessed by two other people who also need to sign the Will. If a person dies without a valid Will the intestacy rules under the Succession Act 2006 (NSW) determine how the deceased person’s assets will be distributed. However, a Court may dispense with the formal requirements to make a Will and uphold a document as a Will if the Court is satisfied that the deceased intended the document to form his/her Will (the dispensing power). The deceased’s sister sought to invoke the Court’s dispensing power to admit to probate what was described as “the online Will”. The estate was less than $1 million. When she died, the deceased was survived by her parents and two siblings.
“[T]he online Will” consisted of an “online Will questionnaire” completed by the deceased through an online Will writing platform. Due to the questionnaire being completed by the deceased on a public holiday prior to her death, it was not reviewed until the next business day. As a consequence no Will was generated or signed by the deceased before she died. On the same day as completing the questionnaire, the deceased sent an email to her lawyer who had been acting for her in relation to a possible compensation claim which said: “Just letting you know I have drawn up and completed a Will” and she included what she believed to be a link to the online Will, as well as the name and contact details of her nominated executrix being her sister. Additionally the deceased left a text on her mobile phone to her sister, which remained unsent. In part the text stated, “I have emailed my lawyer…with the link to my Will I made this morning. I didn’t have time to wait for it to be signed, but I am hoping it will stick”.
In reviewing the dispensing power, the Court acknowledged the “clear intention of [the law] is to allow the Court to give effect to a will-maker’s intention, despite the fact that a will has not been validly executed…Each case must be decided on its own merits, taking into account all of the circumstances”. In concluding “the online Will” should be considered a Will because the Court was satisfied on the evidence that the deceased intended it to form her Will, it is important to note that whilst the Court recognised that “digital communication has become an essential part of the social and economic fabric of society” it also noted “this application has been determined on its own facts. But for the statements, in writing, made by the deceased, about the online Will, the Plaintiff’s claim may not have succeeded”.
Whilst ultimately the application was successful, it was not without associated difficulty, delay and uncertainty for the family of the deceased coupled with considerable legal costs much of which could have been avoided if the deceased had consulted her lawyer to make a Will. At Everingham Solomons, we have the expertise and experience to assist you with all your Estate planning needs because Helping You is Our Business.
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The deceased died in 2019 survived by his adult son, two adult stepchildren and a former spouse. By his Will the deceased appointed his son executor and sole beneficiary of his estate. The estate was not a large one at just under $500,000. The deceased’s adult stepson applied to the Court claiming adequate provision for his proper maintenance and advancement in life had not been made by the deceased’s will and he sought $240,000 from the estate.
The Court could only make an order for provision in favour of the stepson if it was satisfied the stepson was an eligible person. As an ex-stepchild, he was eligible to make an application as a person who was partly dependent on the deceased and a member of the deceased’s household from 1973 to 1981, except for a short break in 1978 provided he could establish there were factors that warranted the making of his application.
In undertaking a review of the evidence, the Court noted “I accept that there would be a range of views within the community as to whether a testator, who had been divorced from their adult stepchild’s parent for nearly 30 years and who had had no contact with that stepchild for over 14 years, would have any moral obligation to provide for them. There is also an absence of evidence of the deceased himself acknowledging any ongoing relationship…for some years. Nevertheless, a relationship existed that was, in my view, close enough to that of a parent/child relationship for a significant period of his life, particularly during his teenage years and young adulthood, such that he [the stepson] could be considered a natural object of testamentary recognition, and I consider that it warrants the making of his application”.
Before making an Order for provision out of the deceased’s estate, the Court had to be satisfied, that adequate provision for the stepson’s proper maintenance, education or advancement in life had not been made by the deceased’s will. In undertaking this assessment, the Court took into consideration all the factual circumstances relevant to the application not least of which included the deceased’s testamentary wishes and the interests of the deceased’s son as the sole beneficiary under the deceased’s will and the competing claimant to the stepson’s application.
Notwithstanding the history of the relationship between the deceased and the stepson and the stepson’s needs, making an evaluative judgement based on all the circumstances of the case assessed at the date of the hearing, the Court held “it was open for the deceased, acting as a wise and just testator, to provide for” his son to the exclusion of his stepson. Accordingly, no provision from the estate was ordered in favour of the stepson.
At Everingham Solomons we have the expertise to assist you with all matters relating to Family Provision Claims, because Helping You is Our Business.
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For many people, this time of year means connecting with loved ones from near and far. Coming together in this way provides the opportunity to discuss the lifesaving decision to become an organ donor and to communicate your wishes to those nearest and dearest to you. It is not uncommon for a person to want to record their wish to become an organ donor in their Will. However, because a Will does not operate until a person’s death and is often not read for some time after death, there are better options for people to record their wishes to donate their organs.
The Australian Organ Donor Register (the Donor Register) is the only national register for people aged 16 years or older to record their decision about becoming an organ and tissue donor. There are a number of ways you can register to be an organ donor including, but not limited to, the following:-
Even if you have previously registered your decision elsewhere (for example on your driver’s licence), it is important to register your donation decision on the Donor Register. This is because in NSW, you can no longer register a donation decision via your driver’s licence.
Secondly, people can record their wish for organ and tissue donation in their Appointment of Enduring Guardian. This is not a substitute for registering as an organ donor. An Appointment of Enduring Guardian is a legal document that gives a person the power to say who they want to have authority to make medical and lifestyle decisions for them if through accident, illness or misadventure a person loses the ability to make decisions for themselves.
Finally, it is important that you discuss your wishes with your family as they will have the final say. Family are more likely to follow your wishes if they already know about them. If over time your views or goals change, it is important that you let your family and enduring guardian(s) know.
Presently there are some 1,750 Australians on the waitlist for an organ transplant and a further 12,000 having kidney dialysis who would benefit from a transplant. Only 1 in 3 Australians have joined the Donor Register, even though statistics reveal the majority of Australians would like to donate their organs after they die. This reinforces why it is important to register, and equally important for donors to make your loved ones aware of registration. Taking the time to have these conversations could help save the lives of people currently spending their Christmas waiting for a transplant.
If you need assistance in any estate planning matter, please contact Everingham Solomons, because Helping You is Our Business.
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The deceased died in 2018 and was survived by his second wife Nejme and 9 adult children from his first marriage. The deceased died leaving a will made in 2015 whereby the deceased gave Nejme a right of residence for 2 years in the home shared by the deceased and Nejme for the duration of their 17-year marriage (the home), $200,000 to one child, and the rest of the proceeds of sale of the home equally to Nejme and his children. Nejme made an application to the Court for further provision from the deceased’s estate.
Nejme was an eligible person as the deceased’s spouse at the time of his death to make an application to the Court for further provision from the deceased’s estate. The issue the Court had to determine was whether: “…adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made (i.e. Nejme) has not been made by the will of the deceased person …”. In the event the will failed to make adequate provision for Nejme, then the Court was empowered by legislation to make an order for provision “as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”.
The Court noted that, whilst “there was no special rule for widows”, “there is a basic minimum which the community regards as necessary for testators to provide for their spouses where their marriage has been of medium to long duration. Those basic necessities include a secure roof over the remaining spouse’s head and at least a small capital sum”. In this case, the Court held “I think it is plain that now, in 2021, adequate provision for the proper maintenance, education or advancement in life has not been made by the will”. “In short, her marriage of 17 years places Nejme in the position of any other widow. She is entitled to a reasonable measure of security of living quarters and means for the rest of her days”.
When considering what additional provision ought to be made from the deceased’s estate in favour of Nejme, the Court considered a range of orders. Taking into consideration the tensions and opposing interests that existed between Nejme on the one hand and the deceased’s children on the other, the Court favoured an outcome that would permit Nejme and the deceased’s children to go their separate ways. The Court ordered further provision out of the deceased’s estate in favour of Nejme of $500,000.
At Everingham Solomons we have the expertise to assist you with all matters relating to family provision claims, because Helping You is Our Business.
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It is a commonly asked question, “When someone dies, who can request a copy of the deceased person’s will?” It is often both a confronting and sensitive question for many people to ask particularly when unlike the movies, there is no obligation on the executor of a will to hold a formal “reading of the will” following the death of the deceased person. In NSW, the answer can be found in section 54 of the Succession Act 2006 (NSW).
Section 54 provides that a person who has possession or control of the will of a deceased person must allow certain people to inspect or be given a copy of the will upon request at their own expense. In NSW, the following persons may inspect or be given copies of the will upon request being made to the person who has possession or control the will:
(a) any person named or referred to in the will, whether as a beneficiary or not,
(b) any person named or referred to in an earlier will as a beneficiary of the deceased person,
(f) any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate,
(g) any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
(i) any attorney under an enduring power of attorney made by the deceased person.
Section 54 provides a right for eligible persons to inspect the will, while section 54(3) imposes a requirement on the person who has possession or control of a will of a deceased person to produce it to Court if the Court so requires. Accordingly, a person who has a right to inspect a will needs to bring an application seeking an order for production to the Court if their request to inspect the will of a deceased person is refused.
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In NSW, there are certain formalities that are required to make a valid will. Failure to observe these formalities can lead to additional delay and expense to your estate. Legislation empowers a Court, in appropriate circumstances, to utilise a dispensing power “to give effect to a testator’s true intentions despite the fact that a will has not been validly executed”.
The deceased died in 2015 leaving a handwritten will dated 11 September 2002. A further document was discovered dated 12 September 2002 (‘the informal document’). The informal document was handwritten and signed by the deceased and stored in the deceased’s safe custody packet at a bank. The informal document stated that cash was buried in the ground at the deceased’s home and $45,000 was to be sent to a named person and $5,000 was for the executors to bury her. Having discovered the informal document after the death of the deceased, the executors of the will faithfully followed the instructions and discovered $50,000 hidden as described by the informal document.
An application was made to the Victorian Supreme Court for the informal document to be admitted to probate pursuant to the dispensing power as the informal document was not witnessed in accordance with the formal requirements to make a will. The Court noted three criteria must be satisfied namely:
(a) there must be a document; and
(b) the document must record the testamentary intentions of the deceased; and
(c) the deceased must have intended the document to be his or her will.
The Court noted “The informal document is clearly a document and it clearly records the testamentary intentions of the deceased. It makes reference to one of the deceased’s assets, and expressly makes directions as to how she wishes it to be dealt with (by the named executors of her will) in the event of her death…The informal document was stored with her financial institution with other important items and was executed only a day after her will, thereby forming part of a broader course of action settling her testamentary affairs. The deceased clearly treated the document as one of practical significance, intending that it take effect, in conjunction with her will, upon her death”.
The Court was satisfied that the deceased intended the informal document to take effect as a codicil to her will.
Whilst ultimately the application was successful, it was not without associated difficulty and delay and uncertainty for the parties involved coupled with considerable legal costs much of which could have been avoided if the deceased had consulted a Lawyer to make a will. At Everingham Solomons, we have the expertise and experience to assist you with all your Estate planning needs because Helping You is Our Business.
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During their lifetimes, the deceased and her late husband had a longstanding share farming arrangement with David “[T]heir aspiration to be able to enjoy an idyllic farming property depended upon their being able to secure the services of a farmer like David, who was prepared to work hard for very little income”. In 1988, after the death of her husband, the deceased represented to David that the farm was to pass to him upon her death, together with a sum of money. The deceased died in 2016. The deceased was survived by her 2 daughters Hilary and Jocelyn. At the time of her death, the deceased was the owner of the farm that she left by her will to Hilary and a bequest of $200,000 to David in her will.
David applied to the Court alleging that by leaving the farm to Hilary in her will rather than to him, the deceased had acted unconscionably in conflict with a promise that had been made to him by the deceased to the effect that the farm would one day be his, in return for David continuing throughout the deceased’s lifetime to conduct share farming on the farm. David claimed that he continued with the share farming agreement, and undertook additional tasks on the farm, in the expectation that the deceased would uphold the promise and leave the farm to him.
Proprietary estoppel by encouragement “comes into existence when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part”.
The Court was “satisfied that David acted on the faith of that assurance to his detriment by continuing the farming operation” on the farm “for about 23 years thereafter in the belief that he would inherit that property” under the deceased’s will. “The average income received by David was in the order of one third of the average annual total male income calculated on the basis of 2020 equivalent dollars”. The deceased ought to have known that part of David’s “motivation for continuing was the expectation that he would inherit the farm”. “In those circumstances, it was unconscionable” for the deceased “not to have left the farm to David in her will”. Accordingly, David established his case and was entitled to the farm.
A promise or representation made by a willmaker to another may be enforceable particularly when another person acts on the faith of a promise or representation to their own detriment believing they will inherit property. At Everingham Solomons we have the expertise and experience to advise you on your legal rights becauseHelping You is Our Business.
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Whilst the role of executor of a will cannot be forced upon a person, the role if accepted, means the executor “owes a fiduciary duty to the estate in exercise of each of the duties of an executor”. If an executor prefers his or her own personal interests to those of executor and intends to neglect his or her executorial duties, they can be removed from the office of executor and stripped of power as a recent case illustrates.
The deceased died in 2019 survived by three (3) adult children Scott, Marla and Donna. By her will, the deceased appointed Scott as executor and left shares in a company to Scott and the rest of her estate to a discretionary Trust. The beneficiaries of the Trust included Scott, Marla and Donna. The effect of the will was to transfer the estate either to Scott or to the Trust for which Scott controlled the Trustee. Donna and Marla, having effectively been excluded from the estate, commenced family provision proceedings.
About 17 months before the deceased died, the deceased entered into what the Court described as a ‘series of extraordinary documents’ which had no commercial purpose but were designed only to avoid the existence of a fund upon which a family provision application could be made.
Of significance was a conversation that took place between Scott and Marla in 2019. The Court noted “The recorded conversation shows a deep-seated animosity of Scott towards Donna. In my view, in the recorded conversation, Scott reveals his intention to access the estate’s funds to fight any claim knowing that Donna will have to fund any legal fees herself. There is a plan stated by him to run her out of money”.
Probate of the deceased’s will was granted to Scott in early 2020.
Donna made an application to remove Scott as executor and revoke the grant of probate.
The Court noted “The starting point is that the choice of an executor is that of the testator and that choice ought to be honoured unless there is some good reason why the chosen executor ought not continue to administer the estate”. “Here, the applicant has made out an overwhelming case for the removal of the executor”. The transactions that took place 17 months before death “were designed… to defeat any family provision application by Donna and Marla. Scott has a clear interest in defending the inter vivos transactions. Therefore, a central question is whether that circumstance is likely to lead Scott to prefer his own interests to the due administration of the estate”.
The Court held “The proper administration of the estate will be frustrated by Scott continuing as executor. An executor should be appointed who will objectively consider the issues facing the estate”. Accordingly, the grant of probate to Scott was revoked and Scott was removed as executor of the will.
Whether you are an executor of a will, or wishing to make or update your own will, we have the expertise and experience to assist you because Helping You is Our Business.
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When people seek to make a homemade Will ‘on the cheap’ without professional advice, it can cause additional stress and anxiety for the Willmaker’s family if a dispute arises as to the meaning of the Will with associated costs of litigation to resolve issues depleting the estate. A recent case serves as a timely reminder of why expending time and money on a professionally drawn Will now “is a sound investment” for the future.
The deceased died in 2017. The deceased was survived by her husband and her two children. The deceased left only a modest estate. When she died, the deceased left a homemade Will. By her Will the deceased sought to make a gift of a particular residence with a direction that the residence was not to be sold “until majority of the residing tenants agree to the action. I wish my children to remain in abode as long as it is deemed reasonable” (‘the first clause’). After making a number of other gifts, a subsequent clause in the Will empowered the Executor to sell assets in the estate on such terms as he considered expedient (‘the subsequent clause’).
As the Will was not clear and the beneficiaries adopted different positions on what they viewed the Will to mean, the Executor applied to the Court for directions as to the proper interpretation of the Will.
The Court observed that the subsequent clause of the Will was quite difficult to reconcile with the rest of the Will. Having made quite specific directions in the first clause of the Will, the subsequent clause appeared to get the Executor to ignore the first clause of the Will entirely. On the face of it at least, the Court observed “it was not possible to reconcile” the first clause with the subsequent clause of the Will.
After undertaking a review of the rules to be applied when construing a Will, the Court ultimately determined there was “no alternative” but to conclude that the first clause of the Will was void for uncertainty. When the wide ambit of the subsequent clause is added in “it is simply not possible to give a construction of this Will which makes sense”.
The consequence was a partial intestacy which resulted in the share of the deceased’s husband in the estate being enlarged by the addition of the gift of the particular residence that failed in the first clause of the Will.
Where the Court has to determine the proper interpretation of a homemade Will, “there is no doubt a good part of the estate will be consumed in a contest over the meaning of what by any measure is a difficult document. It is invariably the case that money spent on having a Will professionally drafted is a sound investment”.
At Everingham Solomons we have the expertise and experience to assist you in making a Will that deals with your particular circumstances because Helping You is Our Business.
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Recently we wrote about adult children seeking to contest their parents will. Whilst an adult child may assert “as of right” that a parent is bound to treat children equally in their will, that is not an automatic right as the following case from last year illustrates.
A mature aged adult son, with a reputation for being “a spendthrift of sorts” sought to make a claim against his mother’s estate at the expense of his only sibling despite the fact that his mother by her will, left him a property in excess of $1.2 million coupled with several years’ annuity of $66,000, but he wanted more.
As a child of the deceased, the son qualified as an “eligible person” to apply for a family provision order against his mother’s estate. When she died, his mother left an estate with an estimated value of over $6 million.
When his mother and his late father were still alive, the son took what was described as an early “inheritance in the form of substantial parental assistance, from time to time, as he encountered crises in life (with a divorce, involvement in court proceedings, and subjection to disciplinary proceedings affecting his entitlement to practise his chosen profession)”. “Having received his inheritance, and (not for the first time) fallen on hard times, the plaintiff looks to his mother’s estate (more particularly, the defendant’s inheritance) for relief against pressing debts and for a larger share of the estate”.
To succeed in his claim, the son was required to establish that he has been left without “adequate provision for his maintenance, education and advancement in life” from his mother’s estate and that further provision “ought” to be made for him from her estate. In his application the son sought a further $1 to $1.5 million from his mother’s estate to which the court noted such an “ambit claim suggests that he has a misplaced sense of entitlement”.
In undertaking a review of previous wills made by the deceased, the court noted throughout her son’s adult life “the deceased accommodated his claims of necessity on her generosity; but she remained mindful of her desire, by her will, to even up the scales as between” her son and daughter.
Ultimately the court determined the son failed to establish that he had been left without adequate provision for his proper maintenance, education and advancement in life out of the estate and his application was dismissed.
At Everingham Solomons we have the expertise to assist you with all matters relating to family provision claims, because Helping You is Our Business.
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The deceased died tragically by her own hand in 2021. By law, certain formalities are required to make a valid Will. Firstly, a Will must be in writing. Secondly, a Will must be signed. Thirdly, the person making the Will needs their signature to be witnessed by two other people who also need to sign the Will. If a person dies without a valid Will the intestacy rules under the Succession Act 2006 (NSW) determine how the deceased person’s assets will be distributed. However, a Court may dispense with the formal requirements to make a Will and uphold a document as a Will if the Court is satisfied that the deceased intended the document to form his/her Will (the dispensing power). The deceased’s sister sought to invoke the Court’s dispensing power to admit to probate what was described as “the online Will”. The estate was less than $1 million. When she died, the deceased was survived by her parents and two siblings.
The deceased died in 2018 and was survived by his second wife Nejme and 9 adult children from his first marriage. The deceased died leaving a will made in 2015 whereby the deceased gave Nejme a right of residence for 2 years in the home shared by the deceased and Nejme for the duration of their 17-year marriage (the home), $200,000 to one child, and the rest of the proceeds of sale of the home equally to Nejme and his children. Nejme made an application to the Court for further provision from the deceased’s estate.