Wills and Estates Articles
Sometimes after a grant of probate has issued to the executor of a deceased estate but before the assets of the estate have been administered, the executor(s) appointed by the will-maker passes away themselves.
In those circumstances, there is no person appointed with the authority to deal with the deceased’s assets or with title to the deceased’s assets.
What happens then?
It is the executor of the last surviving executor of the first estate who is automatically the executor of the first estate “by right of representation” as soon as he or she obtains a grant of probate of the Will of the last surviving executor. The chain of representation is broken if that deceased executor leaves no Will or leaves a Will but the Will fails to appoint an executor or if probate of the Will is not obtained. In any of these circumstances, then a further grant will be required to complete the administration of the first estate. The applicant with the best standing to do this is usually the beneficiary under the Will of the first estate that is entitled to the greatest share of the estate or in the alternative, all the beneficiaries of the first estate.
On a related note, sometimes an executor doesn’t pass away but is too mentally incapacitated to discharge their duties as an executor. By the time the executor is required to discharge their duties, they may be frail or elderly. If there is no substitute executor appointed by the Will, then an application will need to be made to the Court for an administrator to be appointed with the will “annexed” to the grant.
A take-away message from this is that you should consider appointing a substitute executor in the event the first “instituted” executor either passes away or is unable (or unwilling) to act and secondly, you should review your Will regularly and in light of your executor’s circumstances.
Contact Conditsis Lawyers today for a review of your Will.
An adopted child has the same rights in relation to the adoptive parent(s) as a natural child born to those adoptive parents.
If an adoption order is made, then pursuant to section 95 of the Adoption Act 2000 (NSW):
- the adopted child has the same rights in relation to the adoptive parent, or adoptive parents, as a child born to the adoptive parent or adoptive parents,
- the adoptive parent or adoptive parents have the same parental responsibility as the parent or parents of a child born to the adoptive parent or adoptive parents,
- the adopted child is regarded in law as the child of the adoptive parent or adoptive parents and the adoptive parent or adoptive parents are regarded in law as the parents of the adopted child,
- the adopted child ceases to be regarded in law as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child.
For the purposes of a distribution of a deceased estate on intestacy and in keeping with the general effect of adoption orders set out in the Adoption Act 2000 (NSW), an adopted child is regarded as a child of the adoptive parent pursuant to section 109 of the Succession Act 2006 (NSW). The adopted child’s family relationships are to be determined accordingly.
For the purposes of interpreting a will-maker’s Will, if the testator provides that a legacy is to vest in their child or children without expressly identifying that child or children by name, then any adopted child or children the testator may have is to share in that legacy.
It is important to note that step-children are not included in the reference to a ‘child’ in succession legislation.
The grant of probate is based on the understanding that the Will is valid and represents the last testamentary intentions of the deceased. If you believe that the Will that is being propounded as the last Will of the deceased is not valid or that the application for probate should not continue for some other reason, then any challenge should be made before probate is granted and before the executor has dealt with the assets of the estate.
Some circumstances where interested persons may seek to challenge a Will include where:
- The Will is not the last Will of the deceased;
- The testator lacked testamentary capacity at the time the Will was made;
- The testator lacked knowledge and approval of the Will;
- The Will is a forgery, was made under undue influence or pressure, or is fraudulent;
- The Will is not executed in accordance with the Succession Act 2006 (NSW); or
- The testator revoked the will in his or her lifetime.
If you are concerned about a pending or current application for probate in a particular estate, you may, provided you have a legitimate interest (for example, you are the executor or beneficiary under a different Will which you claim is the last valid Will of the deceased) file a caveat which prevents a grant being made until the caveat lapses or is withdrawn.
(Creditors of the deceased and family provision claimants are not interested persons for the purpose of contested probate proceedings).
The applicant for probate may file a notice of motion for the caveat to cease to be in force if they believe that the caveator does not have a legitimate interest in the proceedings.
If the dispute can’t be resolved amicably, then you may file an appearance which will result in you being joined as a defendant in contested proceedings. The matter will then be directed to proceed by way of pleadings (statement of clam).
For assistance please contact Senior Associate Solicitor Elisha Edwin
In NSW Trustee and Guardian; re estate of Cooper  NSWSC 1020, the NSW Trustee & Guardian (TAG) applied to the Court, as administrator of the estate, for orders permitting the distribution of the deceased estate to the Crown. The order sought is known as a Benjamin order. The name of the order is derived from an old English case of the same name where the executor could not locate a beneficiary. Such an order applies where there is uncertainty about a factual matter relevant to the distribution of the estate.
In Cooper’s case, Mr Henry Cooper died in 1996 with an estate worth approximately $47,000. He died without leaving a will. He did not have a spouse or children. The order of distribution on intestacy were his parents, siblings, grandparents, aunts and uncles and then cousins. There were several inconsistencies as to the dates on his birth certificate and death certificate and his own parents’ death certificates and other inconsistencies concerning the number and names of his siblings.
The Court held that the possibility of a person entitled to the deceased’s estate surviving him was so remote that it could be disregarded. The Court granted the orders sought by TAG.
A Benjamin order can include a declaration by the court that a beneficiary, predeceased the deceased or that the applicant is at liberty to distribute the estate because it can’t locate the whereabouts of a beneficiary or any other declaration as to who should benefit from the estate. The personal representative of the estate is then excused from any personal liability in the event a beneficiary comes forward later to claim that they have not distributed the estate correctly because the court has made such an order.
The personal representative is required to make all necessary and proper investigations as to who may be entitled to the estate and their whereabouts before the Court will be minded to make such an order.
You’ll find that the team at Conditsis Lawyers is here to demystify the estate process.
The short answer to this question is ‘no’ unless there is an express direction from the attorney within the power of attorney document itself that the attorney is entitled to access the principal’s will. Otherwise, simply, in New South Wales at least, there is no legal basis for the attorney to obtain that information.
In Hawkins v Clayton  HCA 15, the High Court held that a solicitor or any other person for that matter, holds a person’s will as bailee. Subject to the terms of the bailment (the legal relationship created between the bailor (the person making the will) and the bailee (usually a solicitor), the bailee owes an obligation to the bailor to exercise reasonable care with the will. The same can be said concerning an original title deed.
There is a popular view that an attorney should be provided with a copy of the will because it would be useful for an attorney to be informed of how the principal intends to dispose of his or her property upon their passing. In this way, the attorney can properly discharge his or her role as attorney. For instance, if the principal gifts certain real property under their will to a beneficiary but the attorney is not privy to this information and sells that same real property during the principal’s lifetime, that specific legacy will fail. Nevertheless, the position in NSW is still that an attorney is not entitled to a copy of the will.
Interestingly, a financial manager appointed by court or tribunal order (whether a private person or the NSW Trustee & Guardian has been appointed as financial manager) is entitled to a copy of the principal’s will by virtue of section 80 of the NSW Trustee & Guardian Act 2009. Arguably, the functions of an attorney and financial manager are the same. However, the Powers of Attorney Act 2003 does not confer such a right on the attorney.
The best course of action is for the principal to give an express direction in the power of attorney document itself as to whether the attorney can access the principal’s will, the type of access allowed and the circumstances in which that access can be obtained.
You’ll find that the team at Conditsis Lawyers is here to demystify the estate planning process.
It made headlines in November last year – a Sydney developer that exercised “squatters rights” to claim title to a house valued at $1.7M by simply moving in to an unoccupied Ashbury house and renting it out.
The house at 6 Malleny Street was originally purchased by Mr Henry Thompson Downie in 1927. He resided in the house with his family until they moved to neighbouring suburb a decade or so later.
Mr Downie died in 1947 without leaving a will.
The house was rented to a Mrs Grimes who was a “protected tenant” paying a small amount of rent until her death in 1998.
That same year, Mr Bill Gertos, former accountant, came across the house while visiting clients in the same street. He was told by neighbours that the house was occupied by an elderly lady who had recently died. He decided to take possession of the house for himself after finding the house uninhabitable.
He changed the locks and engaged a builder to make some improvements to the home so that it was fit for occupation. He paid the rates and other statutory charges on the property and engaged a managing agent to lease the property.
In 2017, Mr Gertos made a possessory title application to the Registrar-General to be recorded as the registered proprietor of the land pursuant to section 45D(1) of the Real Property Act 1900 (NSW). This part provides that a person who is in possession of land (that is, the whole parcel of land) and the title of the registered proprietor has been extinguished by application of the statute of limitations as against the person in possession, may apply to be recorded as the proprietor of that interest in land. The applicant must be in adverse possession which is possession that is “open, not secret; peaceful, not by force, and adverse, not by consent of the true owner”1. The Court accepted Mr Gertos was in adverse possession based on the circumstances. Justice Darke commented on the purpose of law that there is a public interest in ensuring that a person in long-term and undisputed possession is able to deal with the land as owner.
Statute of Limitations
In 2017, Mr Downie’s daughter and two grandchildren commenced proceedings for a declaration that Mr Gertos was not entitled to be registered as the proprietor. By the time the family of the deceased owner’s family took an interest in the property to recover the land, it was too late.
The cause of action to recover the land by the true owner accrued when the owner was entitled to possession. This means that the owner was entitled to recover the land once the property was no longer tenanted, that is, when Mrs Grimes died in 1998, the same year Mr Gertos took possession. There is a 12 years limitation period to recover the land. That period expired in 2010.
This case highlights that in NSW, “squatters rights” or possessory title (by adverse possession) are well and truly alive.
1 Bowen CJ in Eq in Mulcahy v Curramore Pty Ltd  2 NSWLR 464 at 475
Challenging a Will: What information does an applicant need to show when making an application for a greater share in the deceased’s estate?
If a person decides to make a claim against a deceased person’s estate seeking a greater share in the deceased’s property, that person will need to provide information to the Court to show that they have needs that have not been adequately provided for by the deceased.
Additionally, a person will need to provide information to the Court on the nature and quality of the relationship between the applicant and the deceased.
An applicant can also provide information to the Court as to:
- the size, nature and value of the deceased’s assets and any liabilities;
- any contribution, financial or otherwise, the applicant has made to the deceased’s property or welfare during the deceased’s lifetime;
- any obligations or responsibilities the applicant feels that the deceased owed to him or her;
- whether the deceased made any statements to the applicant as to how he or she would provide for the applicant; and
- details of the deceased’s will and whether the deceased appointed a person to deal with his or her estate.
Although an applicant may be an eligible person to make an application for better provision from a deceased person’s estate, it is important that the applicant shows to the court that they have needs, present and future, that the deceased has failed to recognise in his or her will.
The Court will need to know the nature and extent of the person’s present needs as well as what his or her future needs may be. Accordingly the applicant will need to provide extensive information as to their current financial circumstances. This includes details of the applicant’s income and any liabilities or debts the applicant may have to provide information to the Court as to the applicant’s financial resources. The Court will also ask for details on the property the applicant owns and has bought and sold.
In addition, the applicant will need to provide as far as reasonably possible information on what his or her future needs may be. If the applicant anticipates that they will have future medical needs, then information will need to be provided as to what they are.
Expert legal advice on Wills and Estates
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If a person is unhappy with what has been left to them in a will, a family provision claim can be made seeking better provision from a deceased person’s estate.
In this article, we look at what a family provision claim is and who can make a claim.
What is a family provision claim?
A claim for family provision is an application made to the court by a person who feels that a deceased person has failed to provide for them properly in their will or that the share left to them is less than what they may have expected or even been promised.
Family provision is statute based and confers on the court a discretionary power to make an order for adequate provision to be made out of a deceased person’s estate for the maintenance of an applicant.
A purely twentieth century concept, family provision overrides the general legal principle that a person has the testamentary freedom to dispose of their property on death as they think fit. Up until the enactment of family provision legislation, this right was seldom interfered with unless the deceased person (or testator) had abused that right.
In a society in which wives were financially dependent on their husbands and adult males were the principal property holders and breadwinners, the first family provision act in New South Wales in 1916 was a reflection of community expectations that a deceased person had a moral duty or obligation to ensure adequate provision had been made for his dependants.
The primary focus of the first Act was the proper maintenance and support of a testator’s wife, husband or children. It addressed situations that occurred in a 1909 New Zealand case (Re Allardice: Allardice v Allardice (1909) 29 NZLR 959), in which a testator (deceased adult male) left a will that favoured his second family and completely cut out his first wife and children.
If successful, in making an order for provision, the court does not rewrite the deceased person’s will so that it is a will that should have or ought to have been made. Further, an order is not meant to right the wrongs in the deceased’s relationship with the applicant or to ensure that there is an overall fair division of a deceased person’s estate. However, the family provision legislation does give the court a discretionary power to discharge a testator’s responsibility to make adequate provision for the proper maintenance of the applicant.
Who can make a family provision application?
Up until 1982, the main focus of family provision legislation was on spouses and children of the deceased. In 1982, applicants eligible to bring a claim were broadened to include not only those entitled automatically on the basis of family ties but those who had cohabited or been dependant on the testator.
Under the current family provision legislation Succession Act (2006) NSW, there are six categories of eligible persons who can make an application.
- the spouse of the deceased at the deceased’s date of death;
- a person living in a de facto relationship with the deceased;
- children of the deceased (which also includes adopted and ex nuptial children);
- the former spouse of the deceased;
- a person who at any time was wholly or partly dependent upon the deceased, either a grandchild of the deceased or who was a member of the deceased’s household; and
- a person who was living in a close personal relationship with the deceased at the deceased’s time of death.
However, although a person may be eligible to make a family provision claim, it does not necessarily mean an entitlement to provision will be automatic. A person’s relationship with the deceased will not mean that there was a moral duty to provide for that person.
The process for making a claim
As spouses, de facto partners and children are recognised as having an automatic entitlement to make an application on the basis of familial ties, they will have less factors to demonstrate to the court when applying for family provision.
However, those who were members of the deceased’s household or had a close personal relationship with the deceased, and who do not have family ties to the deceased, may have a harder time providing sufficient evidence for a claim for family provision. These applicants need to demonstrate to the court that there are “factors warranting” the making of an order for provision. If unable to meet these factors, the court will not be able to make an order for provision.
When should a claim be made
Any claim for family provision needs to be brought within twelve months from the date of the deceased’s death.
It is possible to bring a claim after the twelve months have elapsed, but the court will need sufficient reasons to extend the time period for making an application.
If you are a person who has been left out of a will, or would simply like further information on family provisions, please contact us today.
If you are a beneficiary or family member who has been left out of a will or your inheritance is less than promised or you consider you are entitled to a larger share than you have been left, there are avenues to pursue. One of these is to bring an application for family provision against the deceased person’s estate however, not everyone is automatically entitled to claim.
This article examines who is eligible to bring a claim and, if so, what that applicant needs to demonstrate in order to be successful.
Who can claim?
Before you can claim, you will need to establish that you are an eligible applicant.
The current family provision legislation, Succession Act (2006) NSW, specifies who can make an application. If you are:
- a spouse, a person living in a de facto relationship with the deceased or a child, you are automatically entitled to bring a claim; or
- a former spouse, a person who at one time was a member of the deceased’s household, or was living in a close personal relationship with the deceased at the time of the deceased’s death, it is possible to bring a claim but additional factors need to be demonstrated.
The existence of a particular relationship to a deceased does not create a moral duty to provide. If you are eligible to bring a claim, it does not necessarily follow that there will be an automatic entitlement to provision. It will need to be shown that the deceased failed to make proper provision for you either during the deceased’s lifetime or through their will.
What does the court consider when asking if there has been proper provision for an applicant?
To determine whether or not the deceased did make proper provision involves examining two questions:
- has the applicant been left by the deceased person without adequate provision for his or her proper maintenance, education and advancement in life; and, if so
- what provision ought to have been made?
Some of the matters that a court will look at to determine whether or not adequate provision has been made are the applicant’s financial position, the size and nature of the deceased’s estate and it will then balance these considerations with the interests of other claimants and demands on the estate.
An applicant must be able to demonstrate that they have a genuine need for maintenance and support and that their own financial resources are not adequate to meet their needs.
Other relevant considerations that will be taken into account will be any provision that a deceased made during their own lifetime, as well as the character and conduct of the applicant before and after the deceased’s death.
It is important to bear in mind the approach a court will take.
Each family provision claim is different and the outcome will depend on the circumstances and merits of a particular case.
Furthermore, frequently emphasised in judicial decisions is that the court does not have the power to effect what may be considered to be a fair distribution of the deceased’s estate among competing beneficiaries. The purpose of the family provision regime is not to create equality or fairness between a deceased’s family members. Nor is it an issue in a family provision claim of righting the wrongs that may have existed in a relationship between the deceased and the applicant.
A successful order for family provision in favour of an applicant will be made at the court’s discretion. The court will only intervene to the extent necessary when an eligible applicant is in need of proper provision and the deceased failed to make proper provision for the applicant.
The contents of this article are intended to provide a general guide only. If you are considering bringing a claim against a deceased estate, you should seek advice that looks at your particular circumstances.
If you wish to discuss any claim that you may want to bring, contact our team today.