Wills and Estates (Succession Law) in Australia

A will is a document by a testator making a written declaration about how their property is to be distributed after their death. In Australia, each state and territory has a different Act dealing with wills and estates, and the power to deal with wills and estates is vested in the Supreme Court of each state and territory.

The proving of the will, or probate, is granted by the Supreme Court to the executor of the will. This gives the executor title to the testator’s property, which allows the executor to pay debts, funeral and other expenses, and then to administer the estate pursuant to the instructions of the will. If no valid will is made, the deceased is said to have died “intestate”, in which case the laws of intestacy will apply and the Supreme Court can grant letters of administration.

Valid Will

For there to be a valid will, there must be the following elements:

  1. Intention: It must be evident that the testator intended the document to be a will. This intention can be expressed by the usual words, “this is the last will [and testament] of”, or can be implied by the form and nature of the document;
  2. Testamentary Capacity: The testator must have had capacity at the time of making the will, and this can be difficult where the testator is of old age or extremely ill and has only some lucid intervals. The capacity of a minor testator is difficult to ascertain and the relevant Succession Act of the State or Territory provides terms under which capacity is granted;
  3. Formal Requirements: Each relevant Succession Act contains the formal requirements of a will. In general terms, the will must be in writing and signed by the testator (or some other person in the presence of and under instruction by the testator), made or acknowledged and witnessed by the signature of two witnesses at the same time;
  4. No Revocation, Alteration or Revival: To be valid, the will must not have been revoked, altered or revived. One way a will can be revoked is upon marriage; however, it is important to note that upon the termination of marriage, a will is not automatically revoked and is something that should be contemplated upon separation or divorce.

Grant of Probate and Administration of Estate

If an executor is not appointed, or the sole executor dies before obtaining a grant of probate, then the court will grant letters of administration rather than probate. Therefore, more than one executor should be appointed in a will, unless the executor is an institutional executor (such as the state or territory’s Public Trustee). Gifts, directions and testamentary trusts can be provided for by the testator in their will.

A grant of probate or letters of administration is necessary to enable the assets of the estate to be collect for the benefit of the beneficiaries and are needed to access bank accounts and title to the property. The usual process involves the following four stages:

  1. Vesting of the Deceased’s Estate: This is the grant of probate or letters of administration;
  2. Administration of Realty;
  3. Administration of Personalty;
  4. Distribution to Beneficiaries.

Accounts are required to be made at each stage to ensure that all assets, debts and liabilities are accounted for.

Rights of Beneficiaries

If a beneficiary is left a specific gift (such as land or other real estate, money or goods), then the beneficiary is not entitled to request or receive general information about the testator’s estate as a whole. The usual entitlement of reasonable care and diligence from the executor is required, and if the specific gift has not been transferred to the beneficiary within a year of the testator’s death, then the beneficiary is entitled to an explanation. If a beneficiary is entitled to a share of the estate rather than just a specific gift, then the beneficiary is entitled to a copy of the will, statements of accounts, assets and liabilities and inspection of any books, papers, valuations, property, and so on. However, if the beneficiary requests copies of any such documents, then the beneficiary must pay the estate’s costs of providing such documents to the beneficiary.

Duties of Executors and Trustees

Generally speaking, the main duty of the executor is to collect the assets of the deceased estate, attend to issues such as debts and liabilities, and then distribute any remaining assets to beneficiaries. Prior to distribution of the gifts or assets to the beneficiaries, the executor is deemed to be the owner of the testator’s property. If the testator has provided money gifts in the will, but there is no money in the estate, the executor must sell the assets to be able to meet those money gifts.

Often an individual is named as both an executor and trustee in a will. The executor’s duties end with the distribution of the assets, but the trustee’s role continues. This is often the case when there are young children to be maintained until they come of age, and the assets must be managed in the interim. Duties of a trustee, in a broad sense, are to act honestly, in good faith, and to carry out their duties as directed by the will.

Challenging a Will

There are several reasons a will can be challenged or contested:

  • If it is alleged that the will was incorrectly executed or was tampered with
  • If the testator did not have capacity to make the will or was under undue pressure
  • If the meaning of the will is unclear

The court can make a maintenance order on the estate if insufficient provisions have been made in the will for a dependant of the deceased. A person can apply to the court for a share (or an increased share) of the estate if they can prove that the testator should have provided for them in the will but did not, such as domestic partners, step-children or carers.

Challenging a will is a very complicated and often costly process, and a lawyer should be consulted for advice before proceeding.