Your Local Wills and Estates Lawyer in Hornsby and the Upper North Shore

For a Simple Will or Mirror Wills you should expect to pay $440 (incl. GST) per will. For a Will that with Testamentary Trust Mechanisms, as a guide you should expect to pay $770 (incl GST).

Everyone over 18 should have a will.  It is the only way to make sure that your estate is distributed in the way you would like, and that this is done as quickly and cheaply as possible. 

A will can also make things much easier for your family and friends after your death.  When you die, all existing arrangements with or on your behalf i.e. withdrawals from accounts of paying bills will cease.  Accounts in your name are likely to be frozen except to allow funeral expenses.  A will makes it easier for your Executor to gain access to funds in your estate, particularly a small estate where probate may not be required.

There are no formal requirements about who can draft a will.  You can write one yourself however you should only do so if it is straightforward.  Generally speaking, it is not advisable to draft your own will because you may lack objectivity and it can be susceptible to the doctrine of suspicion.  If you are a beneficiary of a will, you should also avoid drafting the will for the intended testator/testatrix as it may raise suspicion of unconscionable conduct. 

In practice, most people consult lawyers or the NSW Trustee & Guardian about making wills and administering estates.  You should be aware however that although the NSW Trustee does not charge to make a will, it does charge to administer an estate. They may also charge for various other services such as the preparation of taxation returns and valuations of property.  Generally speaking, as a pre-condition to the NSW Trustee preparing your will for free, they require you to appoint them as the executor.  Depending on the value of the estate, this could amount to tens of thousands of dollars being paid to the NSW Trustee and Guardian who as executor, will be entitled to charge your estate the cost of administration.

The executor of a will is responsible for:

• Seeing that its terms are carried out;
• Applying for probate, if necessary.
• Defending the terms of the will in the event the will is challenged by someone.

You can choose anyone over 18 years of age to be an executor.  Typically, it is the spouse of child of the testator/testatrix that is appointed; otherwise it can be a lawyer or other trusted person, depending on the complexity of the estate.

No, however you may however wish to leave your executor a cash legacy under your will as compensation for the time involved in being an executor.  An executor may also apply to the court for payment from the estate for the work they have done.

There is no specific amount of commission an Executor is entitled to. However, the court will typically award a commission in a lump sum or percentage of the estate ranging between 0.25% to 1.5%, depending on the complexity of the estate.

Although there is no official ceremony for the reading of a will in Australia, wills should be read and dealt with within 12 months of the date of the deceased.

Your will should be easy to find after you die, otherwise the court may presume that you either did not have a will or you destroyed it.If this was to occur, you will be held to have died interstate.

You should keep your will in a safe place (such as with your bank or lawyer, a trustee company or the NSW Trustee) and a copy kept at home among your personal papers with a note saying where the original is. You should also tell your executor where the original is kept.

If there is no will, the court grants letters of administration to deal with the estate.  The estate will then be distributed in accordance with the rules of intestacy.   In NSW, these rules are found in Chapter 4 of the Succession Act.  It is advisable that you make a will and decide on your own how you would like your estate to be dealt with rather than allow the intestacy rules to decide for you.  Generally speaking, the intestacy rules divide eligible relatives (i.e. those who are entitled to inherit the estate of a person who died without a will) into two parts – spouses and other relatives.  If the deceased was married, their spouse will automatically be recognised and may be entitled to the whole of the estate (if the deceased leaves no children).  This may be problematic if the deceased was married but separated at the time of their death.  If the deceased was in a de-facto relationship, their surviving partner will not be automatically recognised and will need to provide evidence to the court that they were in a relationship with the deceased at the time of their death.

If the deceased leaves a spouse and children and the children are the surviving spouse’s children, the spouse is entitled to the whole estate.  If the children however are not the children of surviving spouse, i.e. the children of the deceased only, then the spouse will be entitled to all of the deceased personal effects and a statutory legacy of $350,000 plus adjustment for CPI as well as interest if the legacy is not paid within one year from the date of death. They will also be entitled to half the remainder of the estate if any. 

A person who is not in a relationship at the time of their death and who does not leave a will, in basic terms, the order of relatives who can inherit will be:

• Children
• Parents
• Siblings
• Grandparents
• Aunts and uncles
• Cousins

If there are no relatives closer than second cousins, the estate will pass to the State (Crown).

Probate is an order from the court stating that the will is valid. Once obtained, it clears the way for the executor to begin administering the estate.

Upon the death of an individual who owned assets, it will generally be necessary to obtain a grant of representation to deal with that person’s estate. It may also be necessary to obtain a grant of representation where creditors are involved or there is a family provision claim.

If a person died leaving a will, you would apply for a grant of probate. If they died without a will, you would apply for letters of administration.

The average time to obtain a grant of probate or letters of administration is 16 weeks from the time of submitting an application. 

There are three basic requirements before a grant of probate can be made:

1. There must be property in the state or territory of the grant of probate (except in Qld);
2. There must be a valid will; and
3. The will maker must have died.

In most cases, the answer to this question is yes. A grant of probate is the confirmation by the Supreme Court that the will annexed to the grant is the last will and testimony of the person who passed away. Thereafter, it provides the executor(s) with the authority to deal with the assets and liabilities of the deceased and to administer the estate in accordance with the terms of the will. Prior to this, the assets of the deceased are “frozen” (except in very limited circumstances).

Where a person has died without a will, it is important that a decision is made as soon as possible as to who should be appointed to administer the estate. Often it is the administrator that needs to organise arranging a funeral and a burial or cremation. In most cases, the appointed administrator is either the spouse of the deceased and/or one or more of the next of kin (other than a minor). Generally, the applicant for the grant must have an interest in the estate or be entitled to represent an interested person. If no such person exists, in NSW at least, the court usually appoints the NSW Trustee and Guardian.

Your superannuation is dealt with in accordance with the Superannuation Funds trust deed. Most superannuation funds are established by way of a trust deed and provide that on the death of a member, their superannuation will be payable to the members dependents.  The trustee of the fund has a discretion to decide who will qualify as a dependent (subject to the rules of the fund and legislation).

To ensure that your superannuation is distributed in accordance with your wishes rather than the trustees, you should make a Binding Death Benefit Nomination (BDBN).  Most funds allow members to nominate who they wish to receive the benefit by filling in a BDBN form.  There are strict requirements involved in making a binding nomination.  For example, the nomination must be witnessed by at least two adults and may have to be updated every three years.  Most funds these days however allow you to elect that your BDBN remains in place in perpetuity.  You should however check whether you have made this election, otherwise it will expire after three years.  Do not expect your fund to send you a reminder to re-nominate your BDBN as most funds do not do this.  

If it is later found that the will is not the last will of the deceased or it is invalid for some other reason, the executor could be held personally responsible for the value of items that have been distributed. If there are any concerns, distribution of personal items should be delayed until at least after the grant is made by the court.

If you have been excluded from the will and/or believe you are entitled to more than what you have been gifted, you may be able to apply for a family provision order pursuant to the Succession Amendment (Family Provision) Act 2008. The rationale of the provisions under this Act is to ensure that adequate provision is made for certain defined eligible persons. An application must be made within 12 months and only those who are recognised as eligible persons can apply. To see if you are an eligible person, you should refer to the act and seek professional legal advice.

The answer to this question depends on “whose asking” .  Obviously, no one is entitled to a copy of a person’s will whilst the testator/testatrix is alive without the consent of the will maker.  Whether you have a right to inspect a copy of a will (including a codicil, and any other testamentary disposition including a revoked will etc) in NSW is governed by section 54 of the Succession Act 2006 (NSW).  Such persons include:

• 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 of the deceased person;
• The surviving spouse, de fact partner or issue (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 parent or guardian or a minor referred to in the will or who would be entitled to a share of the estate of the will maker if the will maker had died intestate;
• Any person committed with the management of the deceased person’s estate under the NSW Trustee and Guardian Act 2009 (NSW) immediately before the death of the deceased person;
• Any attorney under an enduring power of attorney made by the deceased person; and
• Any person belonging to a class of persons prescribed by the regulations.

Assuming you fall under one of the categories listed under section 54 of the Succession Act 2006 (NSW), a request for a copy of the will should first be directed to the person who has possession or control of the will.  Section 54 places a mandatory obligation on the holder of the will to allow inspection and copying of the will.  They cannot therefore give instructions to a solicitor or other third party to deny such inspection or copies of the will to a person entitled.  

In some cases, a person may write to the solicitor acting on behalf of the estate to request a copy. The solicitor may respond and say that they do not hold instructions to release the will and or they have a duty to maintain the confidentiality of a client which prevents them from releasing a copy.  In both cases, the solicitor and/or their client will be in breach of the Succession Act.  Although there is no specific penalty for failure to allow inspection or provide copies, the failure to allow such access to an eligible person would be a breach of a court order under section 54(3).

The will of a deceased person belongs to the court, not the executor.  There can be no property in a will, nor any lien over the will of a deceased person, nor a claim of privilege or confidentiality.

If all requests for a copy of the will have been refused/ignored, you can apply to the court for an order that the document be produced to the court.  Section 150 of the Succession Act (NSW) allows a person to commence an Application by way of Summons. Although this section does not expressly limit who can apply, the applicant (“plaintiff”) will need to clearly demonstrate they have sufficient standing to apply.  Should the court grant the order, the production of the will will be to the court, not the applicant.  If the purpose of production is to allow the executor/applicant to apply for a grant of probate, they will need to file a separate application for a grant. 

Time is of the essence.  If you intend to challenge the will, you must file a caveat to prevent a grant being made by the Register.   Once the grant has been made, it is too late to lodge a caveat.

There are three types of caveats:

1. General caveats – most common form of caveat.  Used when:
   1. It is alleged a will is invalid for testamentary incapacity;
   2. An application for a grant is being made but there is a later valid will;
   3. To prevent a grant from being made of a will which ought to be rectified; or
   4. When a person dies intestate but there is a disagreement as to those entitled on intestacy i.e. where there is a dispute whether a person was a de facto spouse at time of death.
2. Caveat requiring proof in solemn form – this type should only be used where the sole issue in dispute is whether the will was validly executed.  If there are concerns that the will maker was incapacitated at the time of making their will or that there was undue influence, a general caveat should be used.
3. Caveat in respect of an informal testamentary document – this type of caveat is used where a person who might be affected by an application for a grant of an informal will wants the opportunity to be heard.  The same outcome however can be achieved by using a general caveat. 

Important! Only those persons with a sufficient interest in the estate are permitted to lodge a caveat.  Being a creditor of the estate or an intending applicant for a family provision claim is not a sufficient interest.  The sufficiency interest will usually depend upon whether the person seeking to challenge the document, will be entitled to a different benefit in the estate if that document is not admitted to probate. For example, where a beneficiary under a formal will is worried that others may seek probate of an informal will or where a beneficiary under a will is concerned that others may seek probate of a different will. 

The court has the power to alter the terms of a valid will or the distribution under an intestacy to benefit applicants who have been left without adequate provision for their “proper maintenance, education or advancement in life”. This wording may be slightly different in different jurisdictions but it essentially means the same thing.

It is important to understand however that although the law may recognise you as an “eligible person” for the purposes of applying for a family provision order, it does not automatically mean that you may actually be entitled to more than what has been provided (if anything). The law recognises testamentary freedom i.e. the testator freedom to leave their estate to whomever they like. The question to be answered will be, “did the decease have a moral obligation to provide for an eligible applicant’s maintenance, education and/or advancement in life?”. Importantly, if the testator was not providing any financial support to the eligible applicant before their death, it may be that they did not have a moral obligation to do so. For example, in the case of an adult child and a parent who has passed away. The law is designed to provide for the unmet needs of applicants who have satisfied the court that the deceased had an obligation to provide them with such support. Each case will be determined on its merits.