Who can view the will?
Under section 54 of the Succession Act 2006 (NSW) persons are entitled to see the will of a deceased person before Probate is granted at their own costs. Those are:
- any person named or referred to in the will, whether as a beneficiary or not.
- any person named or referred to in an earlier will as a beneficiary.
- the surviving spouse, de facto partner (same or opposite sex) or children of the deceased person.
- a parent or guardian of the deceased person.
- any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate.
- any person (including a creditor) who may have a claim against the estate of the deceased person.
- Any attorney under an enduring power of attorney made by the deceased person.
A person may raise a question concerning the validity of a will or make an application under the family provision chapter of the Succession Act. In each case, contact CFS Legal experienced estate lawyer to seek legal advice by emailing: info@cfslegal.com.au
Is the will valid?
The Supreme Court has jurisdiction concerning the validity of the will, the court often asks questions to determine if a will is valid or not, the common questions are:
- Is it the last will made by the deceased?
- Was it executed in accordance with the formal requirements of the Act or does it satisfy the requirements of the Act?
- Did the will-maker have the testamentary capacity to make the will?
- Was the will altered after it was originally signed?
- Was there any undue influence involved when the will was drawn up?
Interpreting wills
The Supreme Court of NSW interprets wills made or contested in NSW. The executor, or a party interested in the estate, may apply to the court to have it determine what the will-maker meant by the will. For example, a man with two daughters called Mary may have left something to ‘my daughter Mary’. Which one did he mean?
Although the court has common law power to remedy a mistake in a will is severely limited, in contrast to the remedies available for matters involving living people. section 27 of the Act gives the court ‘rectification’ power to rectify a will if the way it is expressed fails to carry out the will-maker’s intentions. Section 32 allows limited evidence to be admitted (including evidence of the will-maker’s intentions) in a court hearing to have the true construction of a will determined if the language used in the will makes any part meaningless or ambiguous.
Family provision orders – with or without a will
Chapter 3 of the Succession Act is titled ‘Family Provision’. This is to ensure that adequate provision is made for certain defined eligible persons, whether or not there was a will, and whether or not the eligible person was mentioned.
Section 100 Statement
When you are making greater provision in your Will for your child while other children have less and you concern any of your children may bring up Family provision orders, Section 100 of the Succession Act 2006 (NSW) provides, for the purpose of the family provision litigation, that a statement made by the deceased’s person during their lifetime is admissible as evidence. A statement such as this is specifically admissible as evidence in Court under section 100 of the Succession Act 2006 and provides an important insight into the motives of why a will-maker decided to leave their property the way they did.
Who can apply?
Persons eligible to apply for family provision orders are:
- the wife or husband of the deceased person at the time of their death;
- a person who was living in a de facto relationship with the deceased person at the time of their death;
- a child of the deceased person;
- a former husband or wife of the deceased person;
- a person who was, at any time, wholly or partly dependent on the deceased person, and at any time a member of the same household as the deceased person;
- a grandchild who was, at any time, wholly or partly dependent on the deceased person;
- a person who was living in a close personal relationship with the deceased person at the time of their death.
Time limits
An application under the Act must be made within 12 months of the death. The applicant can ask the court to have the period extended. Since 2 June 2018, an extension of time is now possible with the consent of the parties (as there was in the previous Act). There is no longer an express power for the executor or administrator to seek to have the period shortened if circumstances warrant.
Making a valid Will, speak to CFS Legal dedicated estate lawyers in confidence. Email: info@cfslegal.com.au