In New South Wales the Succession Act provides that an eligible person must commence Court proceedings for provision out of the Estate of a deceased person within 12 months from the date of death.
If proceedings are not commenced within this time then the Claimant will be met by a defence that the claim is statute barred and should be dismissed.
Under Section 58(s) of the Act the Court has discretion to extend the time for making an Order. Such extension is granted only upon sufficient cause being shown, often where there is no prejudice to the Estate, and where the delay is explained by the person challenging the Will.… Read More
The death of a loved one can be an upsetting and difficult time. This can be particularly so if a person feels they have been inappropriately left out of the deceased’s Will. In our experience, grandchildren can often have very significant relationships with a deceased grandparent yet they may be left out of their Will. Fortunately, there is a way by which a grandchild can seek to receive a share of the deceased’s Estate.
The Succession Act provides a means by which an “eligible person” can apply to the Court seeking an order that they be given greater provision from a deceased’s Estate.… Read More
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.… Read More
As a child of the deceased, a daughter or son of the deceased is deemed to be a person eligible to bring a claim under the Succession Act which allows for eligible people to make an application to vary the Will. In NSW a claim must be made within 12 months of the date of death.
There is an emerging predisposition on the part of Judges of the Supreme Court that adult children bringing a claim for further additional benefits from the Estate, which their claims may be dismissed entirely or otherwise the provision made for them will be made in a paltry amount.… Read More
Like most people do when they find themselves with a spare 5 minutes, I was scrolling through my social media feed recently and I came across some marketing material for ABC’s upcoming show Fisk. Now I’m in no way part of the Fisk marketing team, but for context, the show will revolve around a Law Firm which practices in Wills and Estates.
The video in question showed some snippets from the show along with asking the cast if they had a Will in real life. Of the six Cast members that were asked, only one confirmed that they had a Will.… Read More
In continuing support of a great cause, from 22 to 26 March 2021, Everingham Solomons Solicitors are preparing professionally drafted Will packages* at the heavily discounted rate of $125 per person (or $225 per couple), with 100% of the proceeds being donated to the Westpac Rescue Helicopter Service.
If a person makes a promise (“the promisor”) to another that s/he will obtain an interest in the promisor’s land and in reliance upon that promise, the other person then acts to his/her detriment, the law will intervene to prevent the promisor from going back on his/her word when it would be unconscionable for the promisor to do so. A recent NSW Supreme Court case has considered this legal principle known as proprietary estoppel where disgruntled neighbours sued the estate of his deceased neighbour after it was discovered that she reneged on her promise to leave them certain land by her Will.… Read More
Capacity is a fickle thing which Solicitors and other professionals are required to assess before a person can make certain decisions for themselves.
There are many factors which can affect ones decision making capacity; including a number of medical conditions, disability, age, and level of education.
Under Australian Law there is a presumption that an adult has their own decision making capacity.
In addition to this, there are some documents where a specific test for capacity is required. These documents usually require that a person specifically understand the nature and effect of the documents that they are signing.
Generally, this means that a person must be able to:
• Understand the facts and the choices involved with the decision;
• Weigh up the consequences and potential ramifications of the decision;
• Make a decision free from the influence of family and without coercion; and
COVID-19 has made many people think about their mortality. Making a Will has become a priority for a lot of people in an effort to protect loved ones and as a means by which we can create some certainty as to our last wishes in an otherwise increasingly uncertain world.
Usually, a valid formal Will must be signed by the Willmaker in the presence of two witnesses. This requirement can present an obstacle when you take in account the current social distancing and isolation directives issued by the Government. These directives really do not make the task of signing a Will in the presence of two witnesses who are not family members an easy one.… Read More
Initially, you need to establish if the deceased person had a Will, to determine who the executor is, that is who can manage the Estate.
Next, has a grant of probate been obtained by the executor? If no, you will need to provide further information to the ATO if you wish to establish authority to deal with the tax affairs of the deceased person. If probate has been granted, then the executor has authority to notify the ATO of the person’s death and deal with their tax affairs.
Notifying the ATO of the person’s death can be in paper by completing a “Notification of a deceased person” form with a certified copy of the Death Certificate and Will and submitting it by mail.… Read More