Mediation is a central part of court practice directions in succession law. In some states, such as Queensland and Western Australia, mediation is a mandatory part of a family provision claim. In other states, like New South Wales, Victoria and the ACT, mediation is not mandatory but it is almost invariable that the court will …
Limiting Testamentary Freedom: Does Family Provision Go Too Far?
The Court has long respected testamentary freedom and allowed testators to disinherit close family members if they so desired, leaving those family members with no legal options to contest the will. However, testamentary freedom is no longer absolute and a person who has been unfairly left out of or insufficiently provided for in a will may challenge that will under the family provision regime.
So, You’re Bankrupt: Can You still Make a Family Provision Claim?
Bankruptcy will affect your ability to make a family provision claim. If you become bankrupt after commencing proceedings, your claim will be stayed. If you are successful, the property will go to creditors.
Who Decides What Happens to my Body After I Die?
You cannot “give” away your body under your will, and your control over your body after you die is limited. The executor of your estate will ordinarily have control over your body when you die.
Out-of-Pocket: Capping Costs in Family Provision
The Court may make orders capping the costs recoverable by a party in family provision proceedings
The Executor Won’t Seek Probate of the Will: What Can I Do?
If the executor won’t apply for probate, as a beneficiary you have two options. Serve a notice to apply for probate on the executor or apply to the court for letters of administration.
Can I Claim Family Provision if I Recevied an Early Inhertiance?
Most family provision claims concern the distribution of the deceased’s estate after their passing. So what happens when eligble persons receive an early inheritance? Can they still claim Family Provision?
Does the Executor Need the Consent of the Beneficaries to Reach a Settlement in Family Provision Proceedings?
The Executor has the power to compromise a family provision claim, but do proposed settlements or consent orders require the consent of the beneficiaries.
Is a Future Inheritance a Relevant Consideration in Family Provision Proceedings?
Section 60(2)(d) of the Succession Act indicates that an applicant’s present and future financial resources and financial needs are matters which the court will consider in determining a family provision application. This begs the question: is a future inheritance a financial resource?
Family Provision: Was I in a De Facto Relationship?
The meaning of a “De Facto Relationship”, for the purposes of the Succession Act, is defined in s 21C of the Interpretation Act, as follows: A person is in a de facto relationship with another person if: (a) They have a relationship as a couple living together, and (b) They are not married to one another or related by family.