What is “dependancy” in family provision cases?
Dependence requires a contribution in money or assistance, for less than proper consideration, towards the needs of the applicant, not as a one-off act of generosity but on a settled basis or arrangement. For example, the provision of accommodation for the applicant or payment of school fees.
Legal costs and contesting a will
The Court will not order costs to be paid out of the estate merely because the applicant is an “eligible person”. The general rule is that “costs follow the event”. An unsuccessful applicant is ordered to pay costs, and where the case is “hopeless” the unsuccessful party may be ordered to pay all the costs.Therefore, the prospect of an award of costs against an unsuccessful applicant is clearly a deterrent to unmeritorious claims.
Contesting a will by a former spouse
A former spouse who has already had the benefit of a property settlement under the Family Law Act 1975 (Cth) is not precluded from making an application for family provision. However the spouse claiming further provision on the death of his or her spouse mush show specials reasons as to why further provision should be made.
Family provision. “Child” of the deceased
A child of the deceased is a child of any age, and may make an application for family provision. An adopted child, an exnupual child and a child of a de facto relationship may also apply for provision.
Contesting a will by a de facto spouse
Each case depends on its own circumstance. No single matter referred to in the list of matters to be taken into account or any combination of matters are necessary to find the existence of a de facto relationship. The court may not only have regard to any other matter which is relevant in the circumstances of the case but must consider the evidence as a whole.
Contesting a will – failure of gifts
Until the succession Act 2006 (NSW) a specific or general gift whether a reality or personally which for any reason fails, passes under the residuary clause in a will. It passes on intestacy as undisposed of by the Will. Section 42 of the Succession Act now provides that a lapse share of residue in the absence of a contrary intention is divided proportionately among the remaining shares of the residue.
In will disputes what is “abatement”?
A specific gift adeems if its subject matter is not in existence at the will makers death as a result of which the beneficiary takes nothing. Whereas a general gift cannot adeem but merely “abates” on an insufficiency of funds.
In will disputes what is “ademption”?
A specific gift can fail for “ademption”. If the subject matter of the gift cannot be found amongst the estate assets on the testator’s death the beneficiary takes nothing. He is not entitled to chase the proceeds of the sale or transfer of the gift to another person. A specific gift does not however adeem where the subject matter of the gift has only changed its name not its substance. For example a gift of shares in a company and the change in the name of a company.
In a will the meaning of the terms legacy, bequest and devise
A legacy and a bequest is a gift of personal property (“personalty”). A devise is a gift of realty (real estate… “property”). These days lawyers are encoursged to avoid the old terms and simply refer to all dispositions as gifts and just use the word “give”.
The difference between courts of probate and equity
Probate jurisdiction is the validity of Wills and the equity jurisdiction is concerned with the construction of Wills. It has often been said the probate Court is not a Court of construction. Therefore challenging the validity of a will is in the Probate Division of the Supreme Court and contesting a will or family provision claims are in the Equity Division.
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