Welcome to the November edition of our Wills and Estates Newsletter. It has been a busy last few months as we move forward and learn to live with COVID-19 and overcome the new challenges in our practice caused by the restrictions in 2020 and 2021.
In our last edition of Wills and Estates Newsletter, we provided an update on estrangement and the community expectations of a wise and just testator. We examined what a grant of probate is and how it is possible to obtain an urgent grant in exceptional circumstances. In this edition of the Wills and Estates Newsletter, our team will report on the following topics:
- Considering the potential family provision claim when preparing a will
- Case note: Family provision claim by an excluded son
- Case note: Impact of Testamentary Statement
- Probate News
- Changes impacting a foreign beneficiary under a will to inherit Australian land
We trust you will enjoy the read.
Carroll & O'Dea Lawyers' Wills & Estates Team.
Considering the potential family provision claim when preparing a will
Although a testator (the will-maker) is free to nominate whomever he or she wishes to be beneficiaries under their will, there is a chance that the Court could make an order for provision out of the estate to certain dependants if the testator has not made adequate provision for them under their will. This is known as the family provision claim.
Case note: Family provision claim by an excluded son
In a recent NSW Supreme Court case, His Honour Justice Slattery was asked to consider whether provision should be made to an adult son from his father's estate. The father and son had an estranged relationship for over 18 years.
This case highlighted that it is not the purpose of the Succession Act 2006 (NSW) ("the Act") to compensate for any past failure of the deceased person's legal or moral duty to be good and responsible parent. It is also not the purpose of the Act to punish or provide a legacy by way of damages for past abuse or immoral conduct by a deceased person. However, the Court may consider the past conduct of a deceased person if it explains the current position of the plaintiff (in this case the son) seeking provision from the estate. I examine the reasonings of Slattery J and what clients can learn if they are considering excluding a child from their Will entirely.
Case note: Impact of Testamentary Statement
Another case, Scott v Scott  NSWSC 1619, is an example of the impact of testamentary statements in family provision claims. This matter arose from an application for a family provision order, pursuant to s 59 Succession Act 2006 (NSW). The deceased, a widowed mother of three had initially held a Will which distributed her estate evenly among her three adult children. However, two months prior to her death, a new Will was drafted. The renewed Will stipulated that small legacies of $40,000.00 were to be left to her two elder children, leaving the residue of the estate to the third and youngest child. The remaining estate included a property in Fairfield, NSW valued at $780,000.00. The relevant application was made by the deceased's eldest daughter.
Court's processing times as at 10 November 2022
- The Court is assessing applications for standard probate, reseal, letters of administration filed during the period 5 September to 9 September 2022.
- The Court is reviewing the answers to requisitions (requiring further information on applications) filed during the period 5 September to 9 September 2022.
- The Court is assessing complex applications (for example, informal wills, copies of wills, presumption of death, limited purpose grants, or administration applications not being made by the next of kin) filed during the period 31 August to 3 September 2022.
- The Court will not expedite replies to requisitions by executors/administrators who sell real estate without having first obtained a grant.
There are more than usual delays to obtain a grant from the Court, given the availability of Registrars to assess the application and more estates are becoming complex.
Changes impacting a foreign beneficiary under a will to inherit Australian land
Since 1 January 2021, foreign persons who acquires an interest in Australian land by will, ceased to be exempt from the foreign investment laws.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.