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.
How to Prevent your Will from Being Contested?
It is impossible to absolutely prevent someone from contesting your will provided that they are an eligible person who meets the relevant criteria. However, certain strategies can be employed to minimise the risk of a family provision claim.
Is Your Will Legally Valid?
A will is only valid and enforceable if it is created by a testator with capacity, who knows and approves of its contents, and it complies with the formal requirements in the Succession Act.
Making a Valid Will: The Formal Requirements
A family provision claim proceeds on the basis that the deceased’s will is valid. So what are the formal requirements for a valid will, and what happens if they are not complied with?
Can You Waive Your Right to Contest a Will?
Under the Succession Act, a person may waive their right to bring a family provision claim against a deceased person’s estate. However, any such waiver will only be legally binding if the court approves it.
Can a Prenup Prevent a Family Provision Claim?
A prenup, or a Binding Financial Agreement (BFA) as they are known in Australia, will usually include a clause providing that either or both parties give up their right to make a family provision claim. But do these clauses actually prevent your partner, or former partner, from claiming family provision?
Preventing a Will Contest: Transferring Property Prior to Death
It is common for testators to transfer property or assets to their intended beneficiaries prior to their death, in an effort to avoid any potential challenges to their will. The logic being that an applicant will be unable to challenge the will where the estate has no real value. However, in NSW transferring your assets before your death will not necessarily prevent a family provision claim from being made against your estate and in particular circumstances the court may make a Notional Estate Order.