Published 01 Jun 2016
Michael Witts

When a person dies their assets are ordinarily disbursed in accordance with their wishes set out in their Will. Typically the Executors obtain a Grant of Probate on the last Will of the deceased from the Supreme Court. If a person dies without a Will then they are said to have died intestate. Typically an interested party, usually a beneficiary with the consent of other beneficiaries, will make an application for Letters of Administration from the Supreme Court. On an intestacy the deceased's Estate is distributed in accordance with the Rules of Intestacy which are quiet inflexible.

Making a Will gives you the power to dispose of your assets as you think fit. Provided you make adequate provision for your spouse and children you are able to make gifts to other parties including friends, relatives and charities without the Court interfering. If you do not leave a Will then only those people identified under the Rules of Intestacy benefit. It is a much more complicated application to make an application for Letters of Administration and leaving a Will does simplify matters for those closest to you.

Probate is granted on the last Will of the deceased by the Supreme Court of New South Wales. Each Will should expressly revoke all prior Wills. The only Will the Court concerns itself with is the latest Will of the deceased. Recent amendments to the Succession Act 2006 have increased the scope of the Court to accept Wills which do not meet formal requirements and the Court has wide discretion to interpret Wills which are deficient or do no effectively carry out the wishes of the deceased. The Court sometimes looks at the surrounding evidence in order to deduce the wishes of the deceased.

Generally speaking if the Court is called upon to correct or clarify a Will, the costs of this application are costs borne by the Estate. Accordingly doing a valid Will which meets the minimum requirements and effectively disposes of all of your assets is a worthwhile investment. It is not necessary to have a Solicitor prepare a Will but is it a relatively cheap exercise which should give you the peace of mind that your affairs are in order. In my experience as many as four out of five Wills prepared by testators without legal assistance contain some error or deficiency. This can have catastrophic consequences for a beneficiary.

People often talk about "challenging" a Will. Challenges per se are quiet rare and usually involve a contested application as to the deceased's capacity and knowledge and understanding of the contents of the Will. The 19th Century Banks and Goodfellow test is still good law and sets a relatively low test for capacity. Challenges on the basis of capacity or duress are relatively rare and even if successful have the effect of "knocking out" the last Will which revives the next earlier Will. Often parties who are not happy with the last Will of the deceased get no greater joy from the earlier Will of the deceased and an argument on capacity will not change this fact.

Most often challenges to Will are brought under the Family Provision sections of the Succession Act. If you are an eligible person for whom proper and adequate provision is not made in a Will then, if you have financial need, you can bring an application in the Supreme Court for provision out of the Estate of the deceased. In the exercise of this jurisdiction the Court is called upon to do justice between the various claimants on the Estate and will look at the financial capacity and needs of all parties in order to adjust the various entitlements. Even a party who receives a significant benefit in the Will can always ask for more, but whether they obtain more is another question. It is important to remember that in Family Provision claims the Court does not throw away the Will of the deceased but rather uses that as the starting point to determine what the deceased intended. So even a Will which is challenged under Family Provision Legislation is of value in letting the Court know what the deceased wished to happen. If you are left out of a Will then this firm can assist you by providing advice as to whether you have any entitlement. Remember claims under Family Provision need to be commenced within twelve (12) months of the date of death.

Most Wills are not challenged. Doing a Will will do.

Please call Maclarens Lawyers on 9682 3777 to make an appointment.