Planning Ahead

It’s important to have an estate plan that specifies how you would like your assets to be managed when you pass away.

Will

A Will is a document which is made by a person expressing their wishes as to how their property is to be distributed when they die. The person making the Will must have testamentary capacity (i.e. must be of sound mind) at the time they make their Will.

It is common to think you are free to leave your estate to anyone you choose but, if certain family members or other people who are eligible to make a claim on your estate, feel inadequate provision has been made for them, they have options under the Succession Act to make a family provision claim on your estate.

The Succession Act sets out rules relating to the making of a Will which must be followed for the Will to be valid. In each Australian state and territory there is legislation (the Succession Act*) which deals with Wills, family provision claims, intestacy, probate and the administration of deceased estates. The legislation in each state and territory is similar but as there are some differences, if you are drafting a will, it is important you seek advice from a lawyer in the state or territory where you live. If the rules have not been followed, it generally is necessary to make an application to the court to seek validation of the Will.

 

Intestacy

A person dies ‘intestate’ if they die without a Will or if the Will does not properly dispose of all the assets owned by the deceased.

The Succession Act includes intestacy rules which set out who is entitled to the estate of a person who dies intestate.

It is important to have a Will which leaves all of your assets to those who you intend to benefit.

 

Family provision

Under the Succession Act, the court has authority to make orders to override a deceased’s Will. It is possible for certain persons to make a claim on an estate, if they feel they were inadequately provided for under the Will.

Who can make a claim?

The Succession Act lists those persons who are eligible to make a claim on an estate.

Generally persons who are eligible to make a claim on an estate of the deceased are family members, which includes spouses (married or de facto), children, step children, grandchildren and in some cases parents, former spouses, persons who were wholly or partly dependant on the deceased and a member of the deceased’s household at any time and persons with whom the deceased was living in a close personal relationship with.

In NSW it is possible for a current or former step child of the deceased to make a claim on the deceased’s estate if that child was at any time wholly or partly dependant on the deceased, and was at that time or any other time a member of the deceased’s household.

When to make a claim

The Succession Act sets the time period in which a family provision claim should be started. If the claim is started outside the period, the court has the discretion to allow the claim.

In NSW, an application for a family provision claim must be commenced within 12 months from the date of death. In other states and territories, the time frame ranges from three months to 12 months from either the date of death, the date of probate or the date that letters of administration of the estate are granted (letters of administration are granted where no Will existed).