Probate vs Letters of Administration

What’s the difference between Probate and Letters of Administration?

Probate and Letters of Administration are legal terms used in Wills and Estates Law to describe two situations that can occur with a deceased estate.

Probate

The executor named in the Will of the deceased applies to the Supreme Court of NSW (the Court) for Probate.

Once the Court has made a Grant of Probate, the executor can administer the estate. Administration of the estate includes gathering in the assets and paying the debts of the estate then distributing the remaining assets to the beneficiaries named in the Will. The executor also deals with any challenges to the Will, such as family provision claims or claims that the deceased’s Will is not valid.

Letters of Administration

Letters of Administration is an application made to the Court where:

  • the Will cannot be located; or
  • there is a Will but no executor named in the Will; or
  • the named executor has died or is unable to act.

When the Court grants Letters of Administration, the administrator it appoints deals with the estate in the same way as an executor (i.e. paying estate debts and administering the estate in accordance with either:

  • the Will, or
  • if there is no Will – the Laws of Intestacy.

Summary

The difference is therefore:-

  • Probate – the deceased left a valid Will with an executor who is able to act; or
  • Letters of Administration – the deceased left a valid Will with no executor, or an executor unable to act, or did not leave a Will.

The Court requires more information to determine an application for a grant of a Letter of Administration so it can take longer and be more expensive than an application for a grant of Probate.

Naming multiple Executors and/or a substitute Executor avoids the additional time and expense of applying for a grant of Letters of Administration.

Contact us now for expert legal advice on Wills and Estates Law.

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Letters of Administration in NSW

LETTERS OF ADMINISTRATION IN NSW

The Supreme Court of NSW (The Court) issues a Letter of Administration to legally appoint an applicant as the administrator of a deceased estate. This type of grant is issued where the appointed executor is unavailable to take responsibility for the estate or when the deceased died partially or wholly intestate (i.e. having no will).

What is a Letter of Administration?

The Court can issue Letters of Administration for the estates of people who resided in or owned property in New South Wales. A Letter of Administration is most commonly granted when someone dies intestate. The grant authorises the applicant to assume responsibility for the assets and liabilities of the deceased estate. Asset holders such as government departments and banks will generally release assets to the administrator only after sighting a Letter of Administration.

Where the deceased has a valid will appointing an executor, a Letter of Administration is generally not required. However, when the nominated executors are unable or unwilling to act in the role, an application for a Letter of Administration with the Will Annexed must be made to appoint an administrator.

Who is eligible to apply for a Letter of Administration?

The Probate and Administration Act 1898 lists the categories people eligible to apply. The Court will issue a Letter of Administration to a competent adult who is a potential beneficiary or creditor of the estate (usually a close relative of the deceased such as a spouse or child).

A person living outside Australia cannot apply for a Letter of Administration. If the only eligible beneficiary lives overseas, they must appoint a solicitor to apply for a Letter of Administration in their stead.

If there are several eligible parties, they can either apply jointly, or one beneficiary can apply with the endorsement (by written affidavit) of any other beneficiaries. If the parties cannot agree who should apply for the grant, the Court will assess the merits of the competing claims. In this scenario, the Court generally makes the grant to the deceased’s closest living relative (e.g. their spouse or de facto partner or an adult child).

If assessment of the competing claims is likely to delay administration of the estate, the Court can appoint a special administrator temporarily pending the choice of an actual administrator. A special administrator is not a replacement for an administrator and has limited powers over the estate.

If no relative is willing to apply, the court can appoint the Trustee & Guardian, or accept an application from another interested party (e.g. an estate creditor).

What are an Administrator’s Duties?

The administrator is authorised to manage and protect the deceased estate according to either:

  1. the deceased’s will; or
  2. if the deceased died intestate, according to the laws of intestacy in NSW.

The administrator is responsible for collecting together and valuing the estate’s assets and discharging the estate’s debts. They lodge a final tax return for the deceased and establishes any discretionary trusts according to the will. They are responsible for protecting the estate (e.g. defending it from Court challenges).

How long will an application take to process?

An application may be filed with the Court up to six months after the deceased’s death. A late application may be accepted if:

  1. the Court determines that there is a reasonable excuse for the delay, and
  2. the parties agree to the appointment of the administrator.

The administration of the estate is usually completed within a year of the date of death. However, complexities in the administration, or unreasonable delay by the administrator, may cause delays. If the Court considers that the delay is unreasonable, it may replace the administrator.

An application for a Letter of Administration may take up to 4 months to process depending on how many cases the Court has when the application is filed.

Contact us for advice and assistance in applying for a Letter of Administration.

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What happens to debts when you die?

What happens to your debts when you die?

Death does not extinguish a deceased person’s debts. Creditors to whom the deceased is in debt can still pursue repayment from the Estate. The order in which the deceased’s assets can be used to pay debts is governed by rules. And other limitations exclude the use of certain asset types to repay debt.

Executor’s obligation to pay deceased’s debts

One responsibility of an Executor of a deceased Estate is to pay the deceased’s debts from the Estate assets before distributing the Estate assets to the beneficiaries named in the deceased’s Will, if there are sufficient assets do so. The Probate and Administration Act (NSW) (the Act) authorises an Executor to collect the deceased’s assets and use them to satisfy the Estate’s debts. Failure to fulfil that responsibility can expose the Executor to a personal liability to any unpaid creditors.

Insolvent estates

If there are insufficient assets in the Estate to meet all the Estate’s debts, the Estate is classed as insolvent. The Executor may have to advise creditors that the debts cannot be repaid and ask for the debts to be written off. However, creditors are not obliged to write off debts, and if they amount to $10,000 or more, the creditor may ask the Court to appoint a bankruptcy trustee to the Estate. The Executor is also entitled to ask the Court to appoint a bankruptcy trustee if they believe the Estate assets are insufficient to pay all the deceased’s debts.

Secured vs unsecured debts

Secured Debts

A secured debt is fixed to one or more of the deceased’s assets (e.g. a home loan secured against the deceased’s home by a mortgage). An unsecured debt is not attached to any asset (e.g. a credit card debt). The Executor will generally pay secured debts before unsecured debts, as if a secured debt is not paid, the mortgagee will exercise their right to sell the property to recover the debt.

If a beneficiary is bequeathed an asset that secures a debt, they are receiving only the equity the deceased held in that asset. Provided there is no contrary intention expressed in the Will that the debt is to be paid from the deceased’s other assets, If the beneficiary wants to retain the asset they must take on the debt attached to the asset. They must either repay or refinance the secured debt before the asset will be transferred to them.

Unsecured Debts

An Executor must use the deceased’s assets in accordance with the order prescribed by the Act when paying unsecured debts. All unsecured debts have equal standing so no unsecured debt can be paid in priority to any other unsecured debt.

Are any debts passed on to beneficiaries?

Beneficiaries are only held responsible for paying off the deceased’s debts if:

  1. the debt was jointly incurred by the deceased and the beneficiary (i.e. the deceased and the beneficiary were co-borrowers and were both liable for the whole of the debt); or
  2. the beneficiary personally guaranteed the deceased’s unsecured debt; or
  3. the debt was secured against an asset owned by the beneficiary.

If the deceased’s assets are insufficient to pay out the deceased’s debts, beneficiaries will not be held liable for satisfying the debts of a deceased, including a HECS-HELP debt, credit card debts, taxes or home loans, unless one of the above situations applies.

Order in which assets are used to pay debts?

When paying the deceased’s debts the Executor must pay them in the following priority:

  1. Secured debts from the assets securing them; then
  2. Funeral expenses; then
  3. Testamentary and administration expenses (e.g. legal costs in obtaining Probate); then
  4. Unsecured debts.

Where the Estate is solvent, the Act sets out the order in which assets should be applied to pay debts. If the Will contains specific gifts of money amounts, the Executor must first set that money aside from the Estate assets that have not specifically left to a beneficiary. The order of application of assets to pay debts is:

  1. Assets undisposed of by the Will (e.g. lapsed or void gifts); then
  2. Assets not specifically disposed of by the Will but included (by a specific or general description) in a residuary gift; then
  3. Assets specifically appropriated for the payment of debts; then
  4. Assets charged with, or disposed of by the Will (by a specific or general description) subject to a charge for the payment of debts; then
  5. The fund, if any, retained to meet monetary gifts; then
  6. Assets specifically disposed of by the Will, proportionably amongst them according to their value.

What assets can’t be used to discharge debts?

Assets that were owned by the deceased as joint tenant with another person (e.g. bank accounts, shares, real estate) will not form part of their Estate. They pass by way of survivorship to the surviving joint tenant/s.

If the deceased has Life Insurance or superannuation and has nominated a beneficiary to receive those assets on their death, they will be paid directly to the nominated beneficiary.

The above assets do not form part of the Estate and are not available to the Executor to pay the deceased’s debts.

If the deceased did not nominate anyone as the beneficiary of their life insurance or superannuation benefits, the Life Insurer or Superannuation Fund may pay the benefits to the Estate. In that event, the Executor can use the benefits to pay for the deceased’s funeral and the Estate’s testamentary and administration expenses. They cannot use them to pay any of the deceased’s other debts unless a provision of the Will specifically permits the benefits to be used for this purpose.

Contact us for assistance obtaining a grant of probate or administering a deceased estate.

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What is a Reseal of Probate?

The effect of a Grant of Probate or a Letter of Administration.

When a person dies the executors named in the person’s Will must apply to the Supreme Court of NSW for a grant of probate for the Will made by the deceased to be recognised. A Grant of Probate allows the executors to withdraw the assets from different entities. Until it is issued, none of the assets of the deceased can be distributed to the beneficiaries named in their Will.

If the deceased did not have a will, a letter of administration is granted to an administrator.

What is a Reseal of Probate?

A reseal of probate is the expression used when you need to apply to another state’s Supreme Court, so that a Will that has already obtained a grant of probate in one state, can be recognised in another state. Once a reseal of probate has been granted, the executor can also deal with the assets under the Will that are not located in the state where the original grant of probate was issued.

Obtaining a Reseal of Probate in NSW

The executor or administrator of deceased estate in another jurisdiction obtains the grant of probate or administration in the state or country where the deceased passed away.

However, a grant of probate is state-based and probate laws can differ between states and countries. A deceased’s assets, such as shares or investment properties, may be in various locations. Assets not located in NSW cannot be dealt with under a NSW grant of probate

Rather than requiring a fresh application for a grant of probate in NSW, you can apply to the Supreme Court of NSW asking that it recognise the original grant by resealing the original grant with the seal of the Supreme Court of NSW.

Not all foreign grants can be re-sealed. The Supreme Court of NSW will only recognise grants made in one of ‘Her Majesty’s Dominions’ (being certain Commonwealth countries and other Australian States and Territories. Probate granted in Western Australia , Northern Territory, South Australia, Queensland, Victoria , Australian Capital Territory or Tasmania can be resealed with the seal of the Supreme Court of NSW.

Why do I need to obtain a Reseal?

The Grant of Probate is proof that the named executor or administrator is authorised to deal with the estate’s assets. The asset holder (such as a bank, nursing home, share registry or NSW Land Registry Services) may require the grant before releasing the asset. If the Grant has been obtained outside NSW, the asset holder may require the Supreme Court to approve the Grant.

What is the effect of a Reseal of Probate or Reseal of Administration?

A re-sealed grant of probate or grant of administration made in another state or country has the same effect and operation in NSW. A resealed foreign grant must be accepted as if it had been made by the Supreme Court of NSW. The executor can then gain access to and distribute to beneficiaries the deceased’s assets located in NSW.

Can I avoid having to obtain a reseal in NSW?

Depending on the type, size and value of the asset(s) located in NSW, you may be able to avoid having to obtain a reseal in NSW by signing a declaration and/or indemnity as required by the asset holder. Each asset holder will have their own requirements. You should provide them with proof of the original grant and death certificate and ask them what their requirements are to release the assets. Shares may be released or transferred without the need for the grant to be resealed in NSW if it has been obtained in Australia and a section 1071B statement (which may be downloaded from the share registry) is completed.

How can I obtain a reseal in NSW?

An application for Reseal of probate must be made using the Court form accompanied by the information required by the legislation and rules of court. The process involves filing Court documents and advertising requirements.

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Superannuation and estate administration

Superannuation is becoming an increasingly significant asset. For many Australians, their super is one of their largest cash assets. Part of the administration of an estate may require superannuation to be dealt with.

How do I give superannuation away when I die?

Your Will is a legal document that deals with and distributes assets that you own. Superannuation does not normally form part of your estate and you can’t include it in your Will. It usually goes directly to the person that you nominate to receive the benefit from your superannuation.

Superannuation can not be left to someone in your will. If you don’t understand how you can distribute this money to your beneficiaries and erroneously include it in your Will it can cause problems.

Why can’t I leave Superannuation in my Will?

Unfortunately, when making a Will, the Will-maker can mistakenly believe that super is owned by them and will be distributed along with the rest of their estate. However, your superannuation isn’t considered as one of your assets and cannot be included in your estate.

Due to the way in which Superannuation schemes are set up the money in your Superannuation Account is not owned by you personally. It is owned and managed by the trustee of your Superannuation Fund person who holds it on Trust on your behalf. Only the trustee can distribute the money in your account. They can distribute your superannuation to your beneficiaries, but not as part of your Will.

The Trustee cannot simply do as they like with this money; there is legislation in place to protect your super.

How can I bequeath my superannuation?

Superannuation does not automatically form part of your Estate. You should ensure that you contact your Super Fund with information about your beneficiary or Estate.

What is a death benefit nomination?

A death benefit nomination is a non-binding nomination made by you. In it you express your wishes to the trustee of your superannuation fund about who you would like to receive your death benefit on your death.

What is a binding death benefit nomination?

A binding death benefit nomination is a binding nomination made by you directing the trustee of your superannuation fund who to pay your death benefit to on your death. Traditionally, binding death benefit nomination lapse after three years, so you need to update it before it expires. However, some funds now allow for non-lapsing binding nominations which need not be renewed.

A binding death benefit nomination specifies that the trustee must distribute superannuation in your account to the beneficiaries you nominate.

How do I ensure that my super is distributed according to my wishes?

You can ensure that your Superannuation is distributed according to your wishes by notifying your Superannuation Fund with your Binding Nomination and by inserting a Superannuation Will Clause in your Will.

In your Will you can stipulate who is to receive the benefits of your superannuation account. You nominate through your superannuation fund your legal representative as the beneficiary of your superannuation, who can then distribute it according to your Will.

For this strategy to work, your Will must include a superannuation clause and you must keep the binding nomination and the beneficiaries in your Will up to date.

A simpler option is to make a binding death benefit nomination with your superannuation fund and the money will be distributed to the named beneficiaries on your death.

There are only certain types of people who you can nominate under a binding death benefit nomination. These include a spouse, a de facto, children (in some circumstances including step children), dependents, inter-dependents, and your estate.

How do I make a Binding Nomination with my super fund?

You nominate someone using a death benefit nomination form or a binding death benefit nomination form.

What happens if I don’t make a Binding Nomination?

If you don’t make a binding nomination or it has expired at the time of your death, the trustee of the super fund has the ultimate discretion about who will receive that benefit. They can either pay the money directly to your estate or decide which of your beneficiaries should receive it.

Mid Mountains Legal are experienced in working with Wills and Estates and can ensure your peace of mind with comprehensive legal advice and guidance.

Contact Mid Mountains Legal on 02 47593742 or 0451118644 for a free phone consultation about your Will and distributing your Superannuation.

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What is Probate & how do I apply for it in NSW?

What is a grant of probate?

An estate’s executor/s must collect the deceased’s assets, pay their debts, then distribute the assets to the beneficiaries. A grant of probate is a legal document that authorises an executor/s to follow the provisions of the will in managing a deceased estate.

Once the executor gives the grant of probate to those holding the estate’s assets (including banks or retirement villages holding bonds) or to whom the estate owes a debt they must transfer the assets to the executor (or to beneficiaries named in the will).

The Supreme Court of New South Wales (the Court) determines uncontested applications for grants of probate (known as grants in common form).

The Court can only grant probate if the deceased’s assets are located in New South Wales. If they are in more than one state or country the executor/s may have to apply for a grant in each state or country. However, assets held in other Australian states and in certain countries may only require a reseal of the NSW grant. This article is restricted to grants of probate in NSW

Must I obtain a grant of probate?

Not every deceased estate has to obtain probate. The type, size and value of the assets may be such (e.g. smaller amounts ) that an asset holders may release assets without the need to obtain probate.

Is there a difference between joint tenants and tenants-in-common?

When the deceased’s assets were jointly owned (i.e. where the co-owners [called tenants] did not own distinct shares of the property), the property automatically passes to the remaining joint tenant/s. For example, if all the deceased’s assets were held as a joint tenant with a surviving beneficiary/s probate would not be required.

Probate is required if the deceased owned real estate solely in their name or as a tenant in common (i.e. as a distinct share) with a surviving beneficiary. The certificate of title (or title deed) shows if the ownership of real estate was as joint tenants or tenants in common. New South Wales Land Registry Services (NSWLRS) can provide this information.

What are the asset holder’s requirements to release assets?

Asset holders differ in their requirements for releasing assets. If there is no real estate, the executor (especially if they are the sole beneficiary) should ask the asset holders (e.g. banks, superannuation funds, insurers) if they will transfer the assets without a grant of probate. They may be willing to do so if the executor gives them a certified copy of the death certificate, the will, a declaration signed by the beneficiary/s of their entitlement, and/or an indemnity in case there is subsequently a claim on the estate.

Superannuation is not considered part of the estate. Depending on the terms of the policy, neither are the proceeds of life insurance. However, a trustee may require probate before they will determine who is entitled to superannuation or insurance proceeds.

What is the timeframe for lodging an application?

If an executor files an application for probate after 6 months from the date of death of the deceased, the court requires an explanation for the delay by way of an explanation in the affidavit of executor or an Affidavit of Delay (using UCPR Form 40).

Who can apply?

Executors

The Will-maker (testator) should nominate an executor/s in the will. If an executor is not nominated in the will it is not possible to apply for probate. In that case a beneficiary named in the will can apply for letters of administration with the will annexed.

The testator may nominate an executor as their first choice (the instituted executor/s) and an alternate executor (the substitute executor/s) if the instituted executor predeceases them or is unable or unwilling to act. A substitute executor can only apply for probate if the conditions specified in the will for substituted appointment exist.

If the testator has nominated more than one instituted/substitute executor all of the named executors should apply unless one or more has died (the death certificate must be attached) or have filed a court form indicating that they do not want to apply (renouncing probate). The affidavit in support must explain why other executors are not applying.

If the instituted executor predeceased the testator, the substitute executor refers in the affidavit of executor to the case number of the probate application for the deceased executor or attaches a copy of the death certificate.

If the executor’s name in the will differs from their name in the application for probate this must be explained (e.g. by annexing a copy of their marriage certificate to the affidavit of executor).

If the testator has not specifically named an executor (eg. appointing someone holding an office at the time of their death), the affidavit of executor must include evidence supporting the applicant’s entitlement to apply.

Marriage or divorce after execution of Will

A testator marrying or remarrying after making a will may revoke the will. If the testator married after the will was made, you should seek legal advice as to whether the will has been revoked. A will which says it was made “in contemplation of marriage” would not normally be revoked by a subsequent marriage.

Divorce also normally revokes the former spouse’s entitlement under the will and their rights to be the executor.

Renouncing or resigning as executor

If an executor appointed under a will is unwilling to take on the role they can renounce probate. If there are several instituted executors, the remaining instituted executors can apply. Otherwise, the substitute executor/s may apply if the will says that the substitution is triggered by the instituted executor’s renunciation of probate or their unwillingness to act.

An executor’s renunciation of probate is included in the notice of intention to apply for probate (published on the Online Registry).

Executors cannot renounce probate once a grant has been made. An executor can be removed after a grant has been made only by a Court order revoking the grant of probate.

An executor may delegate their executorial duties only to the NSW Trustee and Guardian or a trustee company.

Where an executor/s is unwilling or unable to apply but is not prepared/is unable to formally renounce probate, a notice must be served on the executor/s requiring them to apply for probate. If they do not comply with the notice:-

  1. the other executor/s may apply without that executor; or
  2. there is no other executor/s, a beneficiary may apply for letters of administration with the will annexed.

If an executor is unable to apply or renounce for medical reasons or is overseas or cannot be located, evidence must be provided with the grant of probate reserving their right to later apply.

The Will

The original Will

The original will (and any codicils) must be filed with the probate application and will be retained by the Court. A will or codicil must be in writing and signed by the testator and two witnesses and be verified that the will is not a carbon or photocopy.

If you cannot find the original will but have found a copy, or if the will is unsigned or has not been properly witnessed, it may still be possible to apply for probate.

Unsigned/undated Will

If the will is undated, you must provide evidence as to when it was executed. If there is another will, this will establish which is the latest will. You should provide an affidavit by an attesting witness or from people with information as to when the will was made or the possible range of dates when it was made.

An affidavit of an attesting witness will be required if there is any doubt as to the proper execution and witnessing of the will. If the will has any hand-written amendments not initialled by the testator and the witnesses, an affidavit of attesting witness as to whether the amendments were made before the will was executed will be required. Affidavit evidence may also be required if it appears that other documents were attached to the will which have subsequently been removed, or if the will has been torn or defaced since it was executed.

Codicils

A codicil is a document that amends a previously executed will. If the testator has made a codicil/s, the application will be for probate of the will and the codicil/s.

Applying for Probate on a copy of a Will

If the original will cannot be found but there is a copy which is believed to be the last will of the deceased then the executor named in the copy may be able to apply for probate on the copy of the will. The actual copy of the will must be filed with the probate application.

Searches must be done to locate the original Will

The affidavit of executor must explain where the copy was found and set out all the searches made for the original will or any later will. These must include:-

  1. searches through the deceased’s personal papers and effects;

If the copy shows that the original will was prepared by a solicitor then enquiries should be made with the firm of solicitors to check that they do not have the original will, and as to their usual practice when wills were prepared for their clients (ie whether they normally held originals in safe custody or gave the client the original).

If the will was last held by a solicitor then an affidavit by the solicitor or someone in that solicitor’s firm should be provided as to the searches they have undertaken for the original will.

If the evidence suggests that the original will was last in the possession of the deceased there is a presumption that the deceased revoked the will by destroying the original. To rebut this presumption, the application must be supported by evidence indicating that the deceased did not intend to revoke the will. This can include:

  1. conversations with the deceased regarding their will, and
  2. evidence of no substantial change of circumstances since the will was made that may have led to an expectation that the deceased may have changed their will.

List those entitled under intestacy

The affidavit of executor must say who would be entitled if there was no will (called “intestacy”).

A limited grant

A grant of probate on a copy of a will is a limited grant. Although the original will is unlikely to be found, the grant is limited until the original will is found and an application for a grant of probate of the original will is made.

Applying for Probate of an informal Will

A will must be signed by the testator and witnessed by two witnesses who both saw the testator sign. Nevertheless the Court may grant probate for a will that does not meet these requirements if it is satisfied that the deceased intended the document to be their will.

Caveats and contested proceedings

A person with an interest in a deceased estate can file a form called a caveat preventing the Court from issuing a grant. There is a filing fee and a caveat remains in force for 6 months. It must be served on known applicants or potential applicants for a grant of probate or administration of the estate.

Reasons for filing a caveat include where:-

  1. someone wants to challenge the validity of an informal will; or
  2. a will that appears to be valid but it is claimed that the will is a forgery; or
  3. there is doubt as to the testator’s testamentary capacity, or
  4. it is claimed that the will was executed under undue pressure; or
  5. there is more than one possible will naming different executors.

An executor who wants to proceed with an application for a grant of probate can apply to the Court for removal of a caveat if they believe that the caveator has no standing or that there is no real dispute as to a will’s validity.

If there is doubt as to a will’s validity, contested proceedings can be commenced for probate to be granted in solemn form. Such proceedings are commenced by statement of claim and determined by a judge.

https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_probate/sco2_filing_instructions/applying_for_probate.aspx
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Challenging a Will in NSW

When can a Will be challenged?

A Will can be challenged by anyone with an interest or relationship with the Will-maker (known as the ‘testator’).

Reasons for challenging a will include:

  • Will not legally binding;
  • belief that a Will has been tampered with;
  • belief of existence of a more recent Will;
  • belief that Will does not make proper provision for claimant;
  • belief that the testator lacked capacity;
  • belief that the testator was tricked or unduly influenced into making the Will.

Undue influence is the use of persuasion, duress, pressure, force, coercion or fraudulent practices to the extent that the free Will of the testator is destroyed.

Preventing Challenges to Wills

If the testator tells loved ones what each is to receive in their Will they know what to expect which helps to prevent challenges.

Courts rarely interfere with the testator’s wishes if the language in a Will is clear and precise. Gifts in a Will being well-defined, expressing clear reasons for giving gifts, and having evidence showing that the Will was not tampered with reduces the chances of a successful challenge.

What is meant by Contesting or Challenging a Will?

A contest to a Will is a formal, legal objection or challenge to the validity of a Will, raised by an interested party, on the basis that:

  • The Will does not accurately reflect the testator’s true intentions; or
  • The will is grossly unfair, excluding the deceased’s dependents or someone who should have been provided for; or
  • the Will is a forgery.

In general, a belief fact that a Will is unfair will not be sufficient grounds to challenge its validity. Contests to Wills may claim that the testator was not acting freely when they made their Will because they:

  • were acting under undue influence; or
  • were the victim of fraud; or
  • lacked the necessary capacity (known as ‘testamentary capacity’); or
  • lacked the mental faculties necessary to write a valid Will.

Is There a Time Limit on Contesting a Will?

If the testator passed away after 1 March 2009, you have 12 months from the date of death to raise a Will dispute claim.

If the testator passed away before 1 March 2009, you had 18 months from the date of death to raise a claim. All is not lost however, as in certain situations you may still be able to make a claim. If you did not know the person had died, or you received threats then the court can set aside the time limit. It’s very important to act quickly, as delay may jeopardise your claim.

If the date of death is uncertain, the court will determine a reasonable date.

When can a Will be Contested?

You cannot challenge a will simply because you do not like its contents, or because you are aggrieved. A legal challenge to a will has to proceed on a ground recognised by law.

A testator’s the right to distribute their estate as they see fit is subject to legislation for the protection of those for whom the deceased had a ‘moral responsibility’ to provide. A Will can be challenged when a loved-one feels that the testator failed to meet this responsibility.

Can I Challenge a Will After Probate Has Been Granted?

While it’s easier to challenge a will before probate is granted, it is possible to raise a challenge after the grant of probate. In this case, you would have to explain to the court why the challenge was not made earlier and satisfy them as to the validity of the grounds for your challenge.

Can I Challenge the Validity of a Will?

Under the Succession Act 2006 (NSW), the two general classes of person have ‘standing’ (the necessary legal entitlement) to challenge a Will are:

  • A Person/s named in the Will (the beneficiary/beneficiaries); and
  • Anyone who would stand to inherit if the Will was invalid. That is, persons who have been ‘disinherited’ or excluded from inheriting.

People entitled to contest a Will because they believe they have not been sufficiently provided for are:

  • Spouses
  • Former Spouses
  • De Facto’ partners – De facto partners are partners who were living with the deceased when they passed away, in a manner similar to that of husband and wife (including same-sex relationships).
  • Children, including adult children, those under 18 and adopted children. Step children may contest the will if they were dependent on the testator.
  • Grandchildren, provided they were at least partially dependent on the deceased;
  • Members of the deceased’s household who were wholly or partly dependent on the deceased. This includes those in ‘close personal relationships’ with the deceased;
  • Parents. If dependant on the deceased, a parent may be able to contest a will.

A claimant on a Will must satisfy the Court that adequate provisions were not made for their maintenance, education or advancement in life.

Can I Challenge Part of a Will?

A Will can be challenged in whole or in part. An entire Will can be challenged, or only the part to which the claimant takes exception.

What Will the Court Look at When a Will is Challenged?

The criteria the Court uses to assess claimants on a Will include:

  • Is the Will ‘grossly unfair’?
  • Should a claimant left out of a Will been provided for?
  • Are the testator’s intentions clear?
  • Did the testator have the mental capacity to understand what he/she was doing?
  • Was a claimant partially or fully dependant on the deceased excluded from a Will?

Will I Have to Go to Court to Contest a Will?

Where possible, Will disputes are resolved through a settlement agreement or mediation. This prevents the matter going to Court which reduces legal costs, brings earlier resolution and preserves family relationships.

Sometimes, however, going to Court cannot be avoided.

How Much Does it Cost to Contest a Will?

The total cost of a contested Will claim depends on how long it takes to resolve a claim: either by negotiation or mediation before or after the dispute reaches Court; or after a long drawn out application to the Supreme Court. Each case is different.

What Will I Get If My Challenge Is Successful?

If you successfully contest the validity of a Will, the court will ‘set aside’ the Will. This has the legal effect of making it as though the will has never existed. None of the provisions will be applied and the estate will be distributed according to the second-to-last will, if one exists. If no other will exists or can be found, the laws of ‘intestate succession’ apply (Intestacy is the state of having died without a will). Those laws mandate how an estate is to be divided. Provision is made for certain relatives and dependants, regardless of the wishes of the deceased.

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What happens to Wills held by firms that close down?

If a law firm is sold, the Law Society of NSW should be informed who the new owner is and documents (including wills) held in safe custody should pass to the new owner. If the firm closes without selling the practice, documents they held in safe custody can be stored by the Law Society of NSW. However, this is optional. A firm may be closed without giving the documents they held in safe custody to the Law Society.

That is what happened to my client recently. He had reason to think that his father had made a will in his favour with a firm that subsequently closed. The deceased rented, and moved to a distant suburb after he may have made a will. The law firm had been sold and the Law Society did not know what had happened to the documents the firm had held in safe custody. A thorough search did not reveal a will and my client is now faced with the costly prospect of having to apply to the Supreme Court of NSW for letters of administration to be appointed the sole administrator and beneficiary of the deceased’s estate.

This problem would be far easier to address if the NSW Government established a central wills registry to which solicitors intending to close their practice must transfer all wills, enduring powers of attorney, appointments of enduring guardian and the like they held in safe custody.

It should be compulsory for legal firms to register all new wills, enduring powers of attorney, appointments of enduring guardian and the like with such a registry, which would hold information relating to Wills (incl testator’s name, address, date of birth and documents used to identify the testator). Although home made wills would still slip through the net, it should greatly reduce the work required to track down a will, representing a significant saving in legal costs to the next of kin.

Doing a new will revokes the previous will. Currently, it is possible for a person to make a second or subsequent will with a different solicitor without either solicitor being aware that an old will exists. There is nothing to stop the next of kin finding a copy of a revoked will and mistakenly assuming it is the current will. A central registry would also clear up any uncertainty as to whether a subsequent will exists.

Until that happens, you can be more confident that your will will not inadvertently go astray by giving your executor(s) a copy of the signed will and telling them where it is stored.

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