B Hayward and Co

Category: Wills

  • What if someone is a bit vague or believes things that aren’t true, can they make a will?

    • The legal terms for this Capacity to make a will.
    • The classic definition was given in a 1870 case of Banks -v- Goodfellow where the test was said to be that the person making the will must:
      • understand the nature of making a will and its effect
      • where a house has to be cleaned up and this involves a reasonable amount of unpaid time (not when you engage a cleaner to do it)
      • known the extent of the property they own or may own at the time of death
      • comprehend and appreciate the claims (ie. moral claims) that they should take into account
      • suffer no disorder of the mind that poisons their affections, perverting their sense of right or prevent the exercise of natural faculties
      • that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

  • My father has made a will but he held the original it and it can’t be found. Can a copy of the will be used instead of the original?

    • When a person makes a will and the original was last seen in their possession but can’t be found when they die, then there is a legal presumption that they have destroyed the original intending to cancel the will.
    • Like other legal presumptions, evidence can be given in court to overcome this. Such evidence might be given by witnesses relating statements by the deceased shortly before death that show he/she still intended the will to operate. But in the absence of any evidence as to what happened to the original, or statements to support the intention that the will still operate, the person will be found to have died without a will.
    • in such circumstances, the Court will require the persons who would have received a benefit on intestacy to be notified and given the opportunity to dispute the use of the copy.
    • when the presumption can be overcome, evidence of the terms of the will may be accepted by the court even if a copy can’t be found.
    • When attempting to obtain probate on a copy of a will, the Supreme Court will require that all persons who would have received the estate on Intestacy be notified of the application and given an opportunity to object.

  • What if something is put in the will by mistake?

    • the Supreme Court will not grant probate on a will which was not fully known and approved by the testator.
    • due execution of a will (signing it in front of witnesses) raises a presumption that the testator knew and approved of its contents
    • probate may still be granted of the will but excluding parts that were included because of fraud, mistake or inadvertence
    • the terms of a will can be ‘rectified’ by the Supreme Court if it is satisfied on evidence that there is a mistake.

  • Glossary – explanation of terms

    • Testator – the person who makes the will
    • Executor – the person(s) who collect in the assets, pay the bills and distribute the assets to the beneficiaries.
    • Beneficiary – the person(s) who receive a benefit from the estate according to the terms of the will
    • Probate – the approval of the Supreme Court to the will.
    • Intestacy – when a person dies without a will.
    • Household chattels (where someone dies without a will) – there is a lengthy definition in the Wills Probate & Administration Act Section 61A (which is too boring to include) but it specifically excludes motor vehicles, boats, aircraft, racing animals, original painting, trophy, clothing, jewellery or other chattel of a personal nature.

  • I have young children, should I appoint a guardian for them?

    • A guardian appointed in a will (called a testamentary guardian) is the person entitled on your death to make decisions for your children. It would not bind a court but would be valid unless over ruled by a court. The problem is that the persons most suitable to have this role when you make the will may be unsuitable when you pass away. People most suitable for guardian situations are:
    • single parents
    • people without family in Australia

     

  • I am an executor in a will. Do I get paid for my time and trouble ?

    • An executor who wishes to be paid for his time and trouble can claim ‘commission’. This is an amount determined by the Supreme Court as compensation for what was involved.
    • If an executor is also left something in the will, this is taken as payment for their time andtrouble. They can get nothing more unless the will specifically allows them commission.
    • To make a claim for commission, an executor would normally have to do something more than just go to his solicitor and tell him to do the work.
    • Examples of cases where an executor would be entitled to commission are:
      • where a business has to be run to sell as a going concern
      • where a house has to be cleaned up and this involves a reasonable amount of unpaid time (not when you engage a cleaner to do it)
    • The amount of commission is determined by the court based on the amount of trouble but something around 0.5-2% of the estate would be usual.
    • A full set of accounts of the estate have to be provided to the court if commission is claimed.

  • When is someone considered legally dead?

    • death is defined by law as the irreversible cessation of all functions of the person’s brainor irreversible cessation of circulation of blood in the person’s body.

  • What happens to a persons property when they someone just disappears?

    • If a person is not heard of for 7 years, an application can be made for Probate of their will (if there is a will) or Letters of Administration of their estate (if there is no will).
    • Death must be the most likely explanation for silence.  This means that they more likely disappeared to avoid paying their debts.
    • The time may be shortened if they were exposed to ‘unusual perils’ such as being lost at sea or in a plane.  This is what happened to the passengers of the plane that disappeared on the way to Lord Howe Island.
    • Sometimes the declaration of death is made by an inquest into the disappearance.

  • What happens if a witness dies?

    • The will is still valid
    • The only problem is that the witness can’t give evidence that the will was freely signed by the Testator.  This will only be a problem if there is a dispute over the signing of the will.

     

  • What happens if my executor dies before you?

    • If he dies either before you or after you but before obtaining probate of your estate, the other executors (if you have named more than one) take on the task. If this leaves you with no executor, the principal beneficiary will have to apply for ‘Letters of Administration with the Will Annexed’.
    • If one of your executors dies after you and after obtaining probate of your estate but before the estate is finalised, the other executors continue the task. If there are no other executors, the executor of the deceased executor takes over both your estate and the executor’s estate.