A Daily Review of Contested Wills

What is a partial intestacy?

A partial intestacy arises where part of the estate is not disposed of by will for example where there is no express or implied provision in the will and generally when the residuary gift fails.

Moveable and immoveable property

On or after the 1 March 2008 (Succession Act 2006) both moveables and immoveables if executed in accordance with NSW wills law or any internal law of any other place are dealt with in NSW: Section 48 and 49 of the Succession Act 2006 (NSW).

The doctrine of renvoi and Wills

Renvoi (or the foreign Court theory) means if we are referred to the law of a foreign Court we must put ourselves in the position of that foreign Court thus the Court may either be referred to our law or to our law including our choice of law rules. Hence a matter may be returned to be determined by the foreign law. The High Court recently confirmed this position in the case of Neilson (2005) however in Paulin (1950) confirmed it does not apply in cases of family provision matters. Family provision cases are dealt with at the domicile of the applicant. The rule is however applied for essential validity of wills and intestate succession.

More on NSW Wills law

Before 1898 personalty was primary liable for the discharge of liabilities. This changed in 1898 and also by the Conveyancing Amendment Act 1930 which introduced new orders or assets for both solvent and insolvent estates. Wills Probate & Administration Act 1898. Renamed Probate & Administration Act 1898 (renamed on the 1 March 2006).The PAA is in relation to the administration of estates.The Succession Act 2006 commenced on 1 March 2008.The Testators Family Maintenance Act commenced in 1916 and ended on 1 September 1983.The Family Provision Act started on 1 September 1982 and ended on 1 March 2008. The Succession Act incorporating wills commenced on 1 March 2008. The Succession Act incorporation family provision started on 1 March 2009. The Succession Act incorporation intestacies started on 1 March 2010.

When did NSW Wills law start?

The English Inheritance Act 1833 and the English Wills Act 1837 were both adopted in NSW. The Locke Kings’ Act was also adopted which is now covered by section 145 of the Conveyancing Act 1919. The Real Estate of Intestates Distribution Act 1862 or Lang’s Act abolished primo geniture (first born) and provided intestate law to pass to Legal Personal Representatives and then family. This law only applied to persons until the establishment of the Probate Act 1890 which applied to realty as well. The Probate Act 1890 was English law, then came the Wills Probate and Administration Act 1898 (NSW), the Probate and Administration Act 1898 (NSW) and the Succession Act 2006 (NSW).

Notional Estate

The basic premise of the “Notional Estate” principle is to extend a deceased person’s personal Estate (i.e. their Actual Estate) beyond those assets which are held solely in their own name at the date of their death. The reason this principal was introduced is that, given super and the proliferation of complex asset-holding structures, a deceased’s personal Actual Estate is often worth very little. Their Actual Estate is often only one slice of the bigger “pie” of assets that the Deceased would have been entitled to enjoy if they had not died. The concept of a person’s Notional Estate becomes very significant in the area of family provision claims. If an eligible claimant (within the Succession Act 2006 (NSW)) believes they have not been adequately provided for, their claim is no longer limited to the Deceased’s Actual Estate – it also takes into account the Deceased’s Notional Estate – if the Actual Estate is insufficient to provide for the successful claimant.

Family provision. How much will I receive?

The amount of provision you may receive all depends on the financial situation of you and the other competitors. We do not know how much provision you will receive. The only person that knows and will decide how much you will receive is a Judge at a hearing. Until that time we can only estimate what a judge will provide taking into consideration the claims of all other people in the case.

How long does a family provision case take?

Because Family Provision Claims are ordered to undergo compulsory mediation it does not take years to have these claims settled. Usually, a mediation occurs within six to nine months of starting the case by filing the necessary documents in Court. The Court now conducts a process called ‘case management’ which is aimed at promptly advancing these types of claims so that they do not take years to go through Court. As part of ‘case management’ the solicitors attend special hearings called ‘directions hearings’ where a Court Registrar makes sure there is a timetable in place that pushes the case towards mediation. If one side falls behind or starts to delay the case the other side can apply to the Registrar to have this fixed and get the case back on track. In an effort to save costs and operate more efficiently, solicitors can now access an ‘online Court forum’ where an agreed timetable can be set in place via the internet. This saves the cost of a solicitor, or their agent, having to attend the ‘directions hearings’ which are usually held at the Supreme Court Building in Sydney.

What is a legacy in a will?

A legacy is the term used in wills to describe a gift of personal property.

An applicant’s financial details

Again and again at mediation and sometimes even at a hearing I see applicants attempting to demonstrate financial need yet forget in their affidavit to provide full details of assets and liabilities and income and expenses and no real evidence of need.