Final distribution of estate following a will contest
In Easterbrook v Young (1977) 136 CLR 308 at 317 it was said by the court: “It is, in our opinion, only when the personal representative has parted with all the assets which came to his hands by the grant of probate or letters of administration that there has been a final distribution of the estate of the testator or intestate”.
Presumption of advancement
In Australia this presumption only applies to transfers from husbands to their wives, from male fiancés to their female fiancées, and from parents to their children.
Contesting a will and cross-vesting in another State
If a family provision claim is brought in one jurisdiction against an estate that holds immovable property in another jurisdiction, the cross vesting scheme may allow one court to hear and determine the whole matter.
Contesting a will and a warning about provision for good behaviour
In Blore v Lang (1960) 104 CLR 124 Fullagar and Menzies JJ, while agreeing that the applicant had been left without adequate provision, warned against making provision just for ‘good’ behaviour. Financial need is the most important requirement.
Beneficiaries exonerated from liability sometimes in will contest cases
In NSW a beneficiary may apply to fix the amount payable from the beneficiary’s proportion of the estate and exonerate the rest from any further liability: s68 Succession Act 2006 (NSW).
Charitable gifts
Research shows that while 70% of the Australian population support charities, only 7.5% of Australians over 60 leave a charitable gift in their will.
Costs assessment in Queensland will contest cases
In Queensland, the Part 3.4 of the Legal Profession Act 2007 (Qld) requires that costs of an action be assessed by an independent accredited assessor.
Reservation of pension entitlements when contesting a will
Even in cases of large estates, it is possible to preserve government pension entitlements by the use of a Special Disability Trust (SDT) set up under the Social Security Act 1991 (Cth). This type of trust allows a family to set aside up to $500 000 in the trust to provide for care and accommodation for a disabled family member, without affecting the disabled person’s pension entitlements.
Effect of section 82 Succession Act 2006 (NSW) when contesting a will
This section allows the court to designate as notional estate property that has been transferred to a person who has subsequently died, even if the property in question has been transferred to the dead person’s legal representative or has been distributed from the dead person’s estate.
De facto and same sex partners contesting a will
All jurisdictions in Australia allow for de facto partners, as defined in each jurisdiction, to apply for family provision. In most jurisdictions this can extend to same sex partners, if they are persons in a close or genuine domestic relationship, or are otherwise entitled to be maintained by the deceased.
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