Estate Planning

When a person dies they often leave behind property, assets and debts this is commonly referred to as a deceased person’s ‘estate’.

Where the deceased has left a valid will, their estate will usually be finalised by the Executor named in the will. If however, the deceased has died without leaving a will, then the deceased’s closest next of kin will usually be responsible for finalising the estate and will usually be appointed the administrator of the estate.

It is the responsibility of the Executor or Administrator to make sure all debts of the deceased are paid and that any remaining assets are distributed according to the deceased’s wishes (where there is a will) or the laws of intestacy (where there is no will).  In many cases, this may require the Executor or Administrator to apply for a Grant of Representation – known as Probate or Letters of Administration – from the Supreme Court of Victoria.

Our experienced Estate lawyers can advise and assist you in applying for the necessary grant of representation and the subsequent administration of the deceased’s estate.

What happens where a deceased leaves no Will and a number of near relatives, who are estranged ? Which one or group would a court favour in granting letters of administration?

It appears that the court would prefer to order letters of administration to the majority group who would be entitled to at least one half share of the estate, even if the minor group applied for an administration order first.

Pearce Webster Dugdales are experienced in this area and are qualified to provide advice to you.

Our Estate litigation lawyers are well able to provide specialist advice in Wills and Estates disputes, contests and challenges dealing with all aspects of Probate, Wills, and Estates together with related litigation.

The Victorian Courts have jurisdiction to determine these matters and our lawyers are skilled in providing advice to executors/administrators, beneficiaries or other persons affected by a Will.

CHALLENGING A WILL

The death of a family member, spouse or partner is one of the most distressing events of our lives. If you are left out of their estate this only adds to this distress.

In Victoria an estate can be challenged by an eligible person and the court has numerous factors that it will take into account when an estate is challenged.

Can I contest a Will if I am an estranged child ?

Are you a child who has had a temporary or permanent falling out with your mother or father?  Has your mother or father provided for your siblings and left you out of their Will?

We can help you make a claim against a parent’s estate as your relationship with the parent who has passed away is only one issue that the court considers.

Can I contest a Will if I was in a relationship with the deceased but not married ?

Are you a former partner of the deceased and you have not been provided for in their estate?

We can provide advice about whether you are eligible to make a claim against a former partner’s estate as there are various factors that the court must take into account concerning your relationship with the deceased.

Contact our estate litigation team to discuss your options about challenging an estate.

Under the Administration and Probate Act 1958 (as amended) a court may order the discharge or removal of an executor/administrator and also if the court thinks fit, may appoint a replacement administrator (a fit and proper person or trustee company) to continue the duties as legal personal representative of an estate.

Such removal or discharge of executor/administrator can occur in three cases:

• if the executor/administrator remains out of Victoria for more than two years;
• where the executor/administrator desires to be discharged from such office; or
• after a grant has been made, the executor/administrator refuses or is unfit to act or is incapable of acting.

Some examples of arguments to support applications for refusing, being unfit to act or incapable of acting are:

• conflict of interest between an executor’s own interest and that of the beneficiaries;
• executor having breached or neglected his/her duty;
• putting at risk estate assets by action or inaction;
• repeated failure to provide accounts and information;
• order of VCAT to appoint an administrator and guardian of an executor by reason of the incapacity.

Obviously each application for removal will depend on the facts and circumstances in an estate and oversights or simple mistakes ought not be grounds for removal.

Pearce Webster Dugdales are experienced in this area and are qualified to provide advice to you

Under the Administration and Probate Act 1958 (as amended) the court may allow out of the assets of any deceased person, to his executor/administrator, such commission or percentage not exceeding 5% for his or her pain and trouble, as is just and reasonable.

Executor’s commission may be also claimed:

• where a Will provides for an executor to receive commission (but such clauses may receive close scrutiny by the courts);
• where beneficiaries and executor agree on payment of commission (but only if all the beneficiaries agree and have the capacity to agree).

APPLICATION TO COURT

An executor is required to set out in an affidavit, details of his/her pain and trouble and also file an estate set of accounts. Beneficiaries also have the opportunity to be heard in relation to such application. Executors ought to realise that a court only has a discretion to allow commission, but realistically, it would be common for an executor to be given commission.

In these applications, the court will consider the accuracy of the executor’s accounts, any benefit given to the executor under the Will, the extent of pain and trouble stated by the executor and any allegation of misconduct.

The rate of executor’s commission is struck on the value of gross realised assets and not the value of assets at the date of death of a deceased.

MULTIPLE EXECUTORS

If all executors apply for commission the same maximum percentage still applies.

A court will not divide an award of commission amongst a group of executors who are required to make their own decision as to its division.

Further, if only one of a group of executors applies for commission, the court may make a lower award.

COSTS

The award of costs in commission applications is discretionary, and consequently, an executor is not entitled to take his or her costs out of an estate, without a court order.

Pearce Webster Dugdales are experienced in this area and are qualified to provide advice to you.

Under the Administration and Probate Act 1958 (as amended) any person may lodge at the Supreme Court a Caveat against the making of a Grant of Representation issuing in respect of an Estate. Such Caveat will lapse after six (6) months following lodgement and it may be renewed by a fresh Caveat.

A person lodging a Caveat must have an interest to challenge the validity of the Will and the grounds for having interest would include:-

• incapacity of a deceased;
• undue influence placed upon the Will maker;
• fraud in relation to the Will;
• suspicious circumstances in relation to the making of the Will; and •existence of a later Will.

The Act requires the Registrar of Probates to notify a legal personal representative of the lodgement of the Caveat and also give notice to the person lodging the Caveat that he/she has a certain time to provide in proper form, the grounds of the Caveat. If the Caveator does not provide such grounds within the prescribed time, the Caveat will lapse and the Registrar will then proceed in processing the Application for a Grant.

It is important to note that the Caveat process will enable a person to stop a Grant of Representation being made, and providing the chance to examine the circumstances relating to validity of Will. When the investigation has been completed, a decision can be made whether or not to proceed with the Caveat process. Another reason for lodging a Caveat is to begin a contested Will matter.

Pearce Webster Dugdales are well qualified to advise on Caveat procedure.

Under the provisions of the Administration and Probate Act 1958 (as amended) a court may order that an administrator be appointed with limited power to carry out certain functions, for example to complete a contract, transfer investments, etc.

Such a limited power shall be controlled by the court and definitely no power to distribute assets will be given. Additionally, such limited grant will usually state that it be limited until a grant of probate or letters of administration is given, or such further order as the Court decides.

There is also the opportunity to apply to the court for a limited grant in certain circumstances, for example:

• to protect assets;
• to sell a business which was owned by a deceased;
• to seek relief of forfeiture of premises occupied by a deceased as tenant, where the landlord has repossessed those premises.

In practice, the competing party/ies should endeavour to agree on an interim administrator being appointed, otherwise, it will be open to the court to make an appointment of an independent administrator which may include a skilled lawyer, trustee company or State Trustees Limited.

Pearce Webster Dugdales are experienced in this area and are qualified to provide advice to you.

Once a grant of probate of a Will has been made (court order that verifies and validates the last Will of a deceased) the court has power to clarify the intentions of a will maker having regard to the words used in a Will.

This may happen in a situation where the Will was prepared by a solicitor or whether it is made by will maker’s own hand.

There are various technical rules to be applied in the area of Will construction, needless to say, the court will be very cautious in interfering with the words used by a will maker.

Pearce Webster Dugdales are experienced in this area and are qualified to provide advice to you.

In some cases consideration can be given to setting aside a Will where the mental capacity of a Will maker is in issue.

It is important to examine a Will maker’s capacity both at the time of giving instructions to prepare a Will and also at the time of its signing.

Four matters need to be satisfied for testamentary capacity:

• The Will maker understands that he/she is disposing of assets after death
• The Will maker understands the extent of the property being disposed of
• The Will maker is able to recall and understand the claims of his/her heirs
• There is no disorder of mind which would influence the Will maker’s decisions.

Pearce Webster Dugdales are well qualified to give advice on matters involving testamentary capacity.

A Will, to be valid in Victoria, will need to comply with matters including:

FORMALITIES

A Valid Will will comply with the formalities of Section 7 of the Wills Act 1997 if:

• It is in writing, signed by the Will maker or by some other person in the presence of and at the direction of the Will maker;
• It is signed by the Will maker with intention to make a Will;
• The Will maker signs the Will in the presence of two witnesses present at the same time; and
• Two witnesses attest and sign the Will in the presence of the Will maker

The Supreme Court may dispense with the requirements for execution or revocation of Wills in certain cases and may admit to Probate the Will of a deceased person a document which has not been signed in the manner in which a Will is required to be signed, provided that the Court is satisfied that the person intended the document be his/her last Will.

CAPACITY

A Will maker must have attained the age of 18 years to make a valid Will, although there are some exceptions. Otherwise, there is no limit of age for a Will maker’s ability to make a Will.

INTENTION OF THE WILL MAKER TO MAKE/CHANGE A WILL OR REVOKE A PRIOR WILL

At all times, a Will maker must intend to make a Will for it to be valid. In that, the person must be capable of making his Will with an understanding of the nature of the business in which he is engaged. In doing so, he/she should intend by his/her act to make a disposition of property or to do any of the other things capable of being done by Will, which will be effected on death.

The person’s intention must be firm and beyond the stage of mere contemplation, for example, if the Will maker is still considering alternative drafts, he/she does not at that time have an intention to make a valid Will.

If the Will document appears on its face to be a Will and satisfies the formal requirements, a presumption arises that the Will maker intended to make a Will. A court will look at rebutting that presumption if there is evidence of a contrary intention.

KNOWLEDGE OF A WILL

The Court will normally not interfere if a Will on the face of it appears to be properly signed and that all the requirements for a valid Will have been met. The Court does not require evidence of proper execution of a Will.

A Court may find a Will to be invalid in part or in full, if there is evidence of lack of knowledge and approval, undue influence or fraud or suspicious circumstances in its making.

Pearce Webster Dugdales are experienced in this area and are qualified to provide advice to you.