Hentys Wills and Estate Glossary
The term ‘Adequate Provision for Proper Maintenance and Support’ is considered relative to each individual’s circumstance. In order to determine whether adequate provision has been made, the court will consider the terms ‘adequate’ and ‘proper’ in relation to the applicant’s situation. E.g. if the child of a wealthy mother has not been awarded as much as she would have expected from her estate, she may be able to contest the will. Even if the daughter has been awarded a lower sum that will ‘adequately’ cover her necessities, this amount may not be sufficient to ensure her ‘proper’ maintenance. The adequacy of the provision that has been made is not decided in isolation but rather is determined by considering whether the applicant has been given enough to live comfortably, in the lifestyle that they are accustomed to.
The terms ‘adequate’ and ‘proper’ are therefore considered in the context of:
- The age, sex, condition, lifestyle and situation of the applicant
- The applicant’s needs and the resources they require for meeting those needs
- The nature, extent and character of the estate and other claims upon it
- What the will-maker regarded as superior claims or preferable dispositions
A deceased’s assets are anything they own at their date of death. However, not every asset can be disposed of within a Will. As a broad rule of thumb – assets which can be disposed of via a Will (estate assets) include anything the deceased has sole ownership over, such as; real or personal property, business ownership, digital assets and intellectual property. Assets which cannot be disposed of via a Will (non-estate assets) are things that the deceased does not have legal ownership over, or has joint ownership with another party. Examples of such include discretionary/family trusts, company assets, life insurance and superannuation.
A beneficiary in a Will is someone/something who/which has been listed in a Will to ‘benefit’ from the deceased’s estate. For an example, the deceased may have left real property, cash or a family heirloom to one or multiple individuals or organisations, making them a beneficiary.
The word caveat comes from the Latin and literally means ‘let him beware’. Thus broadly, a caveat is classified as a legal notice to a court or public officer to suspend a certain proceeding until the notifier is given a hearing. In a Will dispute, a probate caveat is a document that is filed in court to prevent probate of the Will being granted because the plaintiffs want to challenge the validity of the Will. After a probate caveat is filed, the proposed executors of the estate cannot administer the assets until (1) it has been decided by the Court that the proposed Will is the last valid Will of the deceased, and the challenge is quashed (2) the caveat has run out or (3) it has been withdrawn by the caveator.
Contesting a Will
Contesting a Will refers to the making of a ‘Family Provision’, Part IV or ‘Testators Family Maintenance List’ claim. It is an application to the Court to seek further adequate provision from the Estate of a deceased person.
- The spouse or domestic partner at the time of death;
- Child of the deceased (including an adopted or step-child or someone who believed the deceased to be their parent and was treated as such) who, at the time of death, was:
- Under the age of 18;
- A full-time student under the age of 25;
- Suffering from a disability
- A former spouse or former domestic partner of the deceased if the person, at the time of the deceased’s death would have been able to make proceedings under the Family Law Act 1975 Cth; and has either
- Not taken those proceedings; or
- Commenced but not finalised those proceedings because of the death of the deceased
- A child or step child of the deceased not referred to above (i.e adult children);
- A registered caring partner;
- A grandchild;
- The spouse or domestic partner of a child (i.e. son or daughter in law) of the deceased where that child has died within one year of the deceased’s death;
- A person who was or had been (and was likely to be in the near future) a member of the deceased’s household.
It is important to note that siblings and parents are not considered eligible people just based of their relation.
An executor (male), executrix (female) is the person named in a Will who is to carry out the wishes of the deceased after they have passed. It is a large responsibility, and if the Will is challenged or contested it is the job of the executor to defend the Will. An executor named in the Will is under no obligation to accept the responsibility. Instead, if a substituted executor has also been named, the duties can be delegated to them and the original executor will be exempt from all obligations. If no other executor is named, then an application to the Court can be made to appoint an administrator.
Family Provision Claim
A Family Provision Claim also known as Part IV claim or Testator’s Family Maintenance (TFM) claims are launched when an eligible person feels they have not adequately been provided for under the Will. To do so successfully, the eligible person first needs to prove that the deceased had a moral duty to provide for their proper maintenance and support (e.g. that they were maintained by them at some point in time), and then they need to prove that the distribution of the deceased’s estate as set out in the Will, or pursuant to the rules of intestacy fails to make adequate provision for the proper maintenance and support.
An insolvent Estate is one where the person has died with an insufficient amount of assets to pay all the deceased’s creditors. I.e., the deceased person had debts in excess of the value of their estate. In such cases, the potential beneficiaries will be excluded from the provision as the executor needs to use whatever remaining funds available to pay off the deceased’s respective creditors.
Intestacy occurs if there is no Will, or an earlier Will has been revoked without a new one being made. The deceased is said to have died ‘intestate’. In such circumstances, the Estate will pass to the next of kin in accordance with statutory order as directed by the Administration and Probate Act 1958 (Vic). Intestacy can come in two forms – total intestacy or partial intestacy. In the latter form, although a Will may exist detailing the distribution of part of the deceased’s estate, the remainder has been left in a sort of limbo and therefore needs to be distributed in accordance with the statutory order.
At current the statutory order is as follows: If a person died intestate and leaves one partner without a child of the intestate, the partner receives 100% of the Estate. If that person dies and leaves a partner and children, the partner receives the first $451,909, all chattels and 50% of the residuary. The other 50% is to be divided equally among the children. If the intestate leaves multiple partners without any children. The partners receive 100% to be divided either by agreement or a Distribution Order. If the intestate left multiple partners and children, the partners divide the chattels, first $451,909 and 50% of the residuary by agreement or Distribution Order and then the remaining 50% is to be divided between the children. If none of those circumstances apply there is then a hierarchical chain. Beginning with the children of the intestate to share in the entirety of the Estate, then it moves to the parents, siblings, grandparents, uncles/aunties and cousins and finally if there is no family the Crown will take the entirety of the Estate.
Letters of Administration
Letters of administration is intestacy’s version of probate. The Supreme Court will make a Grant of Administration and appoint an administrator to dispose of the deceased’s assets, just as an executor would once probate has been granted. To apply for letters of administration, the person must be the deceased’s closest next of kin in the following order: Lawful spouse or domestic partner, children (excluded step children), grandchildren, parents, siblings.
Pursuant to s 99 of the Act, you have strictly 6 months from the date that a grant of Probate or Letters of Administration is successfully made to contest a Will. The law can be harsh in the sense that often ‘out of time’ is synonymous with being ‘out of luck’, although in some exceptional circumstances an extension of time will be granted. However, the application for an extension cannot be made after the final distribution of the Estate.
Mediation is a confidential meeting that takes place between two parties and is frequently used as an alternative to going to court when contesting or challenging a Will. It is a far more cost-effective way of resolving a dispute with the aim of reaching a mutually agreeable solution. It is an important term to understand if engaging with the team at Hentys Lawyers, as in the last 5 years not one of our Estate disputes has made its way to court, everything has been settled via this form of alternative dispute resolution.
A mediation is most commonly held face to face in a ‘conference room’ environment rather than formal court room, however it is ultimately up to the partners to determine where to meet, so long as the location is on neutral ground. It can be held either before a Registrar of the Court or a private mediator. In both circumstances, the parties’ legal representative begin by making short statements to the mediator, explaining their position. The mediator will then explain the purpose of the mediation to each of the parties, go through the costs involved if the proceeding were to progress to a hearing before a judge and generally finishes their opening by encouraging the parties to try and solve the matter then and there. The mediator is engaged as a completely independent third party and is simply present to guide the discussion and to ensure the proper process is followed, they by no means set the agenda. They remain impartial and have no authority on the decisions regarding settlement, their role ultimately is simply to encourage different viewpoints in the hope that they will reach a mutually agreeable solution.
No Win, No Fee
This means that your legal costs are not payable unless we provide a successful outcome, as at Hentys we believe that your financial position should not prevent you from achieving justice. For more on Hentys Lawyer’s No Win No Fee arrangement please click here.
Probate means proof of the Will. Once the Will has been proven to the satisfaction of the Court – that is, the Supreme Court (Probate Division) agrees that it is the last valid Will of the deceased, probate is granted to the executor of the Will. It authorises the executor to administer the Estate. The executor’s duties include paying debts of the estate, releasing assets and distributing those assets to the beneficiaries. A will cannot be contested until probate has been granted.
A person may be prevented from leaving someone out of their Will, if the claimant can prove that they were induced by that person into believing that they would be provided for in some way, and that person has relied on this to their detriment.
Ultimately, in these situations, equity binds the promisor to deliver on the promise, even if the promise was not supported by consideration from the promise. The key question is whether it would be unconscionable if the promise is not kept by the promisor.
This type of estoppel restricts the legal rights of landowners if they have encouraged the believe in another that he or she has some entitlement over the property, and that belief has been acted upon, usually by some alteration or improvement having been made on the land.
A common argument used when trying to prove that a Will is invalid. This being that the deceased acted under the influence or pressure exerted by another when writing their Will, the Will would be found to reflect the influencer’s wishes rather than the deceased’s and is invalidated.