In addition to the proceedings such as family provision claims, claims alleging the will is not valid, etc, Segelov Taylor are able to assist in other will disputes including:
Wills and estates litigation can be costly, drawn out and frustrating. Great care should be taken not to waste money (or deplete the estate) and to not make what is often a bad situation worse.
Rectification can occur when there is an error on the face of the will, which means that the will does not reflect the deceased person’s intentions. Legislation in all states and territories gives the Probate Court a discretionary power to rectify a will to carry out the will-maker’s intentions because an error was made or because the will does not give effect to the deceased’s intentions.
In NSW, the court can rectify a will under s 27(1) of the Succession Act 2006 (NSW). There are similar powers for rectification in corresponding acts in other states.
Where there is an application for rectification, the court may make an order to rectify a will if it satisfied that the current will does not carry out the intentions of the deceased because:
Examples, where rectification was an appropriate remedy include:
Other states and territories’ legislation :
SA: section 25AA of the Wills Act 1936 (SA).
Victoria: section 37 of the Wills Act 1937 (VIC).
Queensland: section 33 of the Succession Act 1981 (QLD).
Tasmania: section 42 of the Wills Act 2008 (TAS).
Western Australia: section 50 of the Wills Act (WA).
Northern Territory: section 27 of the Wills Act (NT).
ACT: section 12A of the Wills Act 1968 (ACT).
An informal will is a will that does not strictly satisfy the definition of a valid will. In NSW, a will is not valid unless:
Wills that adhere to these requirements are Formal wills.
Informal wills are documents and can include:
In NSW, under s 8 of the Succession Act 2006 (NSW), the court can dispense specific requirements of a Formal will. The court may dispense the specific requirements if:
The informal will must state the deceased’s testamentary intentions, and the deceased must have intended the document to be their will.
The court may have regard to any evidence relating to the informal will; this includes, but is not limited to, the manner the document was signed (if it was signed), evidence of statements made by the deceased to others and surrounding circumstances.
The court can make various orders, depending on their satisfaction that the person intended the document to form their will.
A statutory will is a will made by an Order of the Court. They are also known as ‘court-authorised wills’ or ‘court-made wills’. There are made where a person lacks testamentary capacity, but where the rules of intestacy would be inappropriate.
To impose a statutory will, an application to the court must satisfy the following criteria, as outlined in s 22(b) of the Succession Act 2006 (NSW):
1. The person lacks testamentary capacity
Testamentary capacity is when an individual understands the nature of a will and its effect, comprehends the extent of the estate included under the will and understands the claims on the estate. Medical reports are usually used to support and establish a lack of testamentary capacity.
2. The proposed will accurately reflect the intentions of the person as if they had testamentary capacity;
The court is likely to be satisfied with what the incapacitated person is “reasonably likely” to have done considering what is known of the individual. The following evidence regarding the individual can be provided to the court:
3. And it is reasonable in all the circumstances of the court to authorise the will and make the appropriate orders.
An appropriate person, such as a family member, close friend, carer etc., can make the application. The court must be satisfied that an applicant is an appropriate person. All individuals who have a proper interest in the estate must be informed of the application; this includes anyone who may have a reason to expect a benefit. The person must still be alive and cannot be about to undertake serious medical treatment that may result in death.
We offer a free initial case assessment in all matters.
We will obtain preliminary information from you and provide some indicative advice as to:
The case assessment may be by phone, via video conference (such as Zoom or Teams) or in person. There is no cost associated with this case assessment, nor any obligation to instruct us in your matter.
To arrange your free case assessment please complete the form below or contact us by phone or email.
We are able to be contacted by phone, email, web chat or video conferencing. We have offices in Melbourne and Sydney, and regularly see clients who are to unwell to travel in their homes or hospital (although this is limited at present due to Covid-19). We act for people with asbestos diseases in every State in Australia as well people living overseas.
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