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James Ford has received 12 LawTap Verified Reviews with an average 4.96 rating to date. Most recent verified review from a client remarked "Really appreciate having your advice and guidance throughout this. Particularly being able to turn around the agreement in such a short time over the past couple of days. Thank you for your timely responses and being available to rush through everything at the end."
An up-and-coming, innovative firm that does things differently. Blue Ocean takes an interdisciplinary approach to its personal + commercial law practice to ensure you’re getting what you + your company needs. It has a growing list of [200+] automated 24/7 personal + business legal documents with Embedded Lawyer-Logic™ …
"Between October 2013 and 7 January 2016 James D. Ford assisted 1600 satisfied paying clients with their online queries about all aspects of Australian Law (with a 98.7% positive feedback rate)." [Australian Law]
Any Beneficiary under a Will (including Charitable Organisations, Trusts +/or Companies) are free to disclaim or renounce the benefit [1] at anytime after (not before) the deceased Estate Owner/Willmaker (legally called the Testator/Testatrix) passes away.
The Embedded Lawyer-Logic within this automated document:
❌ Will STOP you from continuing and direct you to contact our legal team if you attempt to generate the document whilst the Estate Owner/Willmaker is still alive.
There could be many potential reasons you would want to do this including the following:
⚖️ A decision not to take anything from the deceased's estate on principle or other personal reasons;
⚖️ In oder to cause a partial or total intestacy which may better suit you (this translates to a situation where you would be entitled to a larger share of the estate under intestacy than by taking under the Will;
⚖️ To escape burdensome provisions such as a Life Estate in a Will;
⚖️ To reject an inconvenient or unwanted gift;
⚖️ To reject the bequest because it has negative equity (the debt against the bequest is greater than the value of the bequest); or
⚖️ To reject a gift tainted by the proceeds of crime, money laundering, terrorist financing activities or some other nefarious enterprise.
An inheritance will enlarge a Beneficiaries assets, and therefore affect a person's claim for social security benefits (if any).
❌ Centrelink will not allow a Beneficiary to keep his or her estate small by disclaiming an inheritance — the disclaimer will be treated as a gift from the Beneficiary and be subject to the social security gifting provisions.
✅ A one-off inheritance may be exempted from the income test: Centrelink should be consulted.
When a benefit under a Will is disclaimed or renounced, the Executors treat that bequest as ineffective and pass the gift to the next eligible Beneficiary under the Will. If there is none, then the gift passes to the Beneficiaries entitled to share in the residuary of the Estate. If there are no other Beneficiaries, then the gift would pass to any heirs according to the relevant local laws of Intestacy.
Any disclaimer or renunciation becomes irrevocable once it has been relied upon.
If a Beneficiary has previously accepted the benefit, they cannot subsequently disclaim or renounce the benefit.
A Partial Intestacy occurs where the Will fails to distribute all the assets either by failing to allocate some of the property or by failing to include a clause that would allocate such property (such as a Residuary Estate Clause).
When a Partial Intestacy is specified, this Deed of Disclaimer or Renunciation of Benefits under an Australian Will is automatically modified to specify that the disclaimer covers both benefits under the Will and under the local laws of Intestacy.
This automated document is uniquely flexible and caters for a wide range of potential classes of Disclaiming Beneficiaries incuding:
✅ A pre-populated list of circa 90 Australian Charities and allows for you to nominate any Charity not listed; and allowance for
✅ Company +/or Trust beneficaries .
We strongly recommend that you contact us to obtain professional legal advice before disclaiming a benefit.
Notes:
1️⃣ Disclaimer may be a disposal for tax, family or bankruptcy purposes, and may have social security implications.
2️⃣ Disclaimer may attract state/territory stamp duty (this is particularly so if an interest in real estate is being disclaimed).
3️⃣ If the Willmaker executed the Will overseas the Beneficiary needs to consult with a foreign lawyer to understand their legal right to disclaim the benefit and if there is a legal right how to ensure the disclaimer is validly exercised according to the laws of the foreign country.
Footnotes
[1] Estate of Simmons (1990) 56 SASR 1.
Source: Hutley's Australian Wills Precedents 9th Edition by Craig Birtles & Richard Neal.
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Whilst it is acknowledged that the legal document templates provided by the majority of [non law-firm] Australian legal document providers will generally have been prepared by lawyers and that the templates they sell are updated from time to time as required by legislative changes.
This does not change the fact that you are not dealing directly with a law firm.
🧩 If and when you have a legal question?
🧩 If the other party wants to negotiate amendments to the legal document?
🧩 If the legal document does not meet all of the requirements of your specific facts and circumstances?
🧩 If there is a mistake in the legal document?
Lastly, what happens if you are not directly involved in the creation of the legal document?
🧩 What if your accountant, tax agent or financial advisor uses a [non-law firm] online legal document service on your behalf?
To help you answer this question, please read our FAQ: If I create a legal document for my client on your law firm’s website am I giving legal advice or am I a "mere scribe"?
A general answer is that online [non-law firm] Australian Legal Document providers are unable to assist clients directly, as they are unable to provide legal advice.
Certain [non-law firm] providers have adopted a business model whereby they earn a substantial ongoing 12 months+ plus referral fee for directing a client to a large directory of law firms who can assist.
This referral fee is charged to the law firm, who may decide to expense it as a marketing cost.
We submit that one way or another, it is ultimately the client who pays for the cost of the referral fee as it increases the cost of doing business for the law firm providing the service to them.
The valuable feedback we have obtained is that:
❌ The quality of the online legal documents are basic, non-adaptive templates; such that
❌ The client is more often than not, required to seek assistance from a law firm in order to ensure their legal requirements are met.
As lawyers are required to undertake client interviews and make manual amendments to the legal documents, the final cost ends up much higher than the client could have anticipated, especially when the original online legal document was given away for free or at a nominal cost.
These kinds of business models may not rise to the level of bait & switch, however they may be found to constitute misleading and deceptive conduct.
In our submission, clients appear to be lead to believe that in the majority of cases they will be able to use the standard online documents without the need to engage a law firm to assist, when in actual fact this is not the case.
When you purchase online legal documents directly from us, we have every incentive to ensure the quality of the online legal documents provided are as high as possible, and that you have all your questions answered.
List of Benefits:
✅ Our law firm already has a copy of your online responses so we can assist quickly and cost effectively.
✅ 1-stop shop. There is no need to wade through a directory of different law firms each time.
✅ Professional Indemnity Insurance (when you engage us for legal advice);
✅ Higher quality automatically tailored legal documents using Embedded Lawyer-Logic™;
✅ Deal directly with a law firm, no need for middlemen;
✅ No referral fees built into the business model;
✅ Lower overall legal costs;
✅ Legal document delivered directly from our .law web domain so you know we created the legal document;
✅ Legal Professional Privilege; and
✅ Enhanced Confidentiality.
Credits:
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
Our Legal Health Check is a process that helps you identify + prioritise your individual + business (if relevant) legal needs.
1️⃣ Complete our Intelligent Questionnaire:
You will be asked to provide information about your personal and/or business circumstances;
2️⃣ Automated Report:
The process uses inbuilt Embedded Lawyer-Logic™ to help you identify key legal risks + concerns and prioritise solutions.
A customised (jargon-free) report is generated in plain english with actionable recommendations.
3️⃣ Deliver Solutions:
You can then consider the information in your own time, and when convenient, select the most appropriate self-service legal documents from our online 24/7 portal or reach out to our legal team to discuss your options in more detail.
🧩 Estate planning;
🧩 Marriage and de facto relationships;
🧩 Tax structuring;
🧩 Dispute avoidance/resolution;
🧩 Investment properties;
🧩 Business sale/purchase;
🧩 Business financing;
🧩 Co-ownership arrangements;
🧩 Managing staff;
🧩 Commercial terms;
🧩 Websites and intellectual property;
🧩 Regulatory compliance.
This is an amazing way to quickly + proactively identify legal risks + opportunities to get your legal affairs in order!
Our Buccaneer Package is designed for individuals + includes our constantly expanding library of [Self-Service] personal legal documents.
It is compelling value with pricing at less than $1 per day which entitles you to access heavily discounted [members only] prices.
You could save thousands $$$ on your legal bills!
Our Yachtsman Package designed for business owners includes our constantly expanding library of [Self-Service] personal + business legal documents.
It is compelling value with pricing at circa $3.50 per day [equivalent to the price of a cup of tea or coffee!] which entitles you to access heavily discounted [members only] prices.
You could save thousands $$$ on your personal + business legal spend!
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Think of Embedded Lawyer-Logic as your way of gaining 24/7/365 access to the best legal minds in the relevant area of law to guide you through complex legal matters via one of our Legal Wizards +/or to instantly generate high quality legal documents, or an initial draft for review by our legal team.
More than 1000+ Australian lawyers use the same Industry leading Legal Document Platform to automatically generate high quality legal documents.
Our intelligent online questionnaire adapts to your answers and only asks relevant questions.
Simply follow the guidance and enter the requested information about your matter.
If you are using one of our Legal Wizards there may or may not be a document to be automatically generated.
The information is then sent to our back-end legal document generation engine, which follows a matrix of algorithms to make decisions about what should be in your legal document, just as an expert human lawyer would do.
The engine then draws from an enormous body of content to assemble a top-tier quality legal document that’s tailored to your situation + requirements.
Our Embedded Lawyer-Logic™ technology includes numerous quality control checks + automatic error-correction, massively reducing the risk of human error.
The finished document is then emailed to you in PDF format, ready to print and sign.
Your answers to the online questionnaire and a copy of the finished document in both Word + PDF formats are automatically forwarded to our legal team.
If we notice anything out of-the-ordinary we will contact you to discuss.
If you are a subscribed member or opt for paid Lawyer-Assistance, we will use the allocated time to assist to clarify and resolve any questions you may have.
If your matter is complex, high risk or you have never been involved in legal matters before, we highly recommend you opt for our Full Service.
Our legal team will contact you and assist you throughout the entire process.
If you are a subscribed member the cost for the time spent by our legal team to assist you is heavily discounted.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Our [Self-Service] legal documents are designed to be completed "without the intervention of a lawyer".
This approach will be appropriate for the majority of routine legal matters, where you are experienced and have learnt what needs to be considered and have gained experience in using our 24/7 online document portal to generate your legal documents instantly.
Some routine matters maybe totally new to you (meaning that you will have questions and we recommend you select our [Lawyer-Assisted] service).
Other matters maybe unusually complex, or of such high-value or risk that involving our legal team is the prudent course to take.
For these matters we recommend you select our [Full Service] option.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
⚖️ Professional Indemnity (Limited Liability) by a scheme approved under Professional Standards Legislation;
⚖️ Access to Professional Fee Funding* / Disbursement Fee Funding / Family Law Funding (subject to approval by QuickFee our external legal finance provider);
✅ Allocated Time included to understand your circumstances + objectives, answer your queries + provide legal advice & make recommendations regarding alternative/additional options; and
✅ Create your standardised Legal Document based on your instructions.
⚖️ Use of proprietary fonts to maximise fraud prevention;
⚖️ Use of our Law Firm Letterhead;
➲ Send your Legal Document for electronic signature/s; and/or
🔒 Application of Trax Print Legal Document Security Technology for Fraud + Litigation Prevention.
* More Information about Professional Fee Funding:
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
The following has been extracted from a JScape's website article answering the question: "Should we start using 4096 bit …?"
In case you're curious where we got the idea of 2048-bit encryption keys being safe to use until 2030, check out the NIST Special Publication 800-57 Part1.
In Table 2 of that document, it says 2048-bit RSA keys are roughly equivalent to a Security Strength of 112.
Security strength is simply a number associated with the amount of work required to break a cryptographic algorithm.
Basically, the higher that number, the greater the amount of work required.
A future proof security solution can mitigate the risk of cyber threats.
We know that cyber criminals are always one step ahead of security professionals, so we're not 100% sure 2048-bit keys are going to remain unbreakable before 2030.
It was once said:
It would take the combined processing power of every computer in the world thousands of years to crack 4096-bit encryption.
Hackers will always look for the weakest link, which is usually a person who makes an error which opens up a gap in an otherwise secure system.
In a more general context (outside of encrypted secure website traffic/data) it has also been said:
Data with 4096-bit encryption (only protected by a password) could still be compromised within seconds.
How? Human error.
Easy pass-phrase, written down password, re-used password... etc. basically, always be on the lookout for the weakest link.
Trust the technology, but never trust the weak link - the user!
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
⚖️ *.law is a top-level-domain (TLD) that aims to:
Promote trust in the professional legal community by creating a:
✅ Verified;
✅ Exclusive; and
✅ Reserved online space in which only accredited lawyers and law firms can establish a comprehensive digital brand.
✅ Website users can have confidence they are dealing with an authorised and licensed lawyer/law firm.
✅ *.law offers effective branding to those in the legal community, with the ability to secure a domain name that clearly communicates who you are + the legal resources you provide.
Source: join.law - Why *.law?
If your role is merely that of a "scribe or scrivener" as outlined below it is unlikely you would be deemed to be providing legal advice or engaging in the practice of law.
Unfortunately this is not as easy as it once was … when online legal document templates were all static "fill in the blanks" one-size-fits-all templates.
Increasingly, the capabilities + complexities of legal document automation have evolved to cater to an ever widening range of facts and conditions.
Using the complex design + incorporation of what we call Embedded-Lawyer Logic™ it is no longer possible to avoid the automated tailoring of the online legal document to suit the client's circumstances + legal needs.
They are designed to produce a quality bespoke legal document just like a lawyer does.
The use of Embedded-Lawyer-Logic™ in the online process:
✅ Is now very similar to a client being interviewed by a lawyer;
✅ It drills down to ask the same questions and provide the same options a highly experienced + competent lawyer is required to do.
As a result the draft legal document created now has the potential to vary significantly based on the responses provided by the client.
We have now progressed to the point that the new normal online process is designed to cause your role to fall outside of the role of a "scribe or scrivener" alluded to below.
In the leading case on this issue Legal Practice Board v Computer Accounting and Tax Pty Ltd [2007] WASC 184; 35 WAR 59 (Simmonds J) noted at para. [152] that Brinsden J in Barristers Board v Palm Management Pty Ltd [1984] WAR 101 referred to Re Matthews (1938) 79 P 2d 535, apparently with approval, as follows at para. [108]*:
The court went on to say that where an instrument is to be shaped from a mass of facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing law in order to ensure a specific result and to guard against others, more than the knowledge of the layman is required and a charge for such services brings it definitely within the term 'practice of the law' [emphasis added].
Therefore, we strongly recommend that you advise your client to either:
✅ Create the draft legal document themselves + ensure independent legal advice is sought from our legal team prior to negotiation and execution; or
✅ Instruct you to create the legal documents using our Lawyer-Assisted option.
Doing this ensures your role is clearly limited to that of a "scribe or scrivener".
Our legal team will then take the responsibility for reviewing your client's individual circumstances together with the draft legal document in order to provide your client with the relevant legal advice, ensure your client understands their legal position and options, and to propose and make any required amendments to the legal document based on your client's instructions.
In Legal Practice Board v Computer Accounting and Tax Pty Ltd [supra]*:
… the court held that work of the mere clerical kind, such as filling out of skeletal blanks or drawing instruments of generally recognised and stereotype forms effectuating the conveyance or encumbrance of property, such as a simple deed or mortgage not involving the determination of the legal effect of special facts and conditions, should be generally regarded as the legitimate right of any layman because it involves nothing more or less than the clerical operations of the now almost obsolete scrivener (emphasis added).
(The scrivener was eliminated in England by the 1804 Act.).
The 2007 case of the Legal Practice Board v. Computer Accounting and Tax Pty Ltd* serves as a timely reminder to members that there are legislative provisions in each state and territory which prohibit a person who is not a legal practitioner from engaging in legal practice.
This prohibition is mirrored in the Institute’s regulations relating to public practice (regulation 1207).
However, there are differences between the jurisdictions as to how the prohibition is framed.
Even so, members who use the services of document providers are urged, as a minimum, to:
✅ Use only reputable document providers whose services are backed by competent legal practitioners;
✅ Ensure that they abide by the terms and conditions of the document providers as to the use of the documents and their supply to clients; and
✅ Avoid redrafting of documents to suit the circumstances of individual clients, unless appropriate legal advice is obtained by the relevant parties.
The Institute believes that the recent WA case does not require any change to a member's legitimate use of this type of service in accordance with their terms and conditions.
However, if you have any concerns or queries about the use of document providers, you should seek legal advice.
Sources:
* Legal Practice Board v Computer Accounting and Tax Pty Ltd [2007] WASC 184;
^ Extracted from the article: Court case raises issues about preparation of legal documents.
Credits:
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
Note: You can find the Trax Print QR Code on the bottom of the first, last or every page, depending upon the preference set by the author of the document.
✅ By way of example, Double-Click on the below sample Trax Print QR Code within the PDF document:
You will be taken to the TraxPrint.com website and a message similar to the following will appear:
The ability to email a document for automated verification has never been done before.
✅ Send an email with the PDF document attached to check@blueocean.law
The Trax Print system checks the Trax Code and compares the entire document to the one that was originally protected.
Trax Print will detect even a one pixel difference within a 1000 page document.
❌ If the PDF document is not authentic a reply email rejecting the document will be send back to you.
If the PDF document is authentic, you will receive a reply email with the following attached:
✅ Certificate of Authenticity (including our law firm details & the timestamp of when the document was Trax Print Protected); +
✅ The Original Trax Print Protected document.
🌊 Email check@blueocean.law with any random PDF document attached (that is not Trax Print Protected).
🌊 Then send a second separate email to check@blueocean.law with one of our Trax Print Protected PDF's attached.
For example:
🌊 Download our Trax Print Protected Brochure called Business Legal Essentials + attach it to your email.
🌊 In both cases you will automatically be emailed the results!
Note: Blue Ocean Law Group are also notified if one of our Trax Print Protected Documents is verified.
This enables us to take appropriate action if the verification was not authorised.
✅ Download the free Trax Print App from the iOS AppStore or Android GooglePlay
Register + Sign-in to the App then ✅ Scan the Trax Print QR Code to Verify.
✅ Drag n' Drop the PDF Document File into the designated area.
You will receive an instant response regarding the authenticity of the document.
This feature is coming soon and we aim to make it available via a dedicated page on our website.
Further Reading: Are your Legal + Identity Documents Securely Trax Print Protected to Provide Fraud + Litigation Prevention? ➲ It's a no-brainer!
Credits:
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
The below iPhone 12 screen shots demonstrate what we mean by "^anywhere (even from your mobile phone, if necessary)".
Credits:
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
➲ A person appointed by the Supreme Court to administer a deceased estate when the deceased has not left a Will, or if they have for some reason the nominated executor is unable to or does not wish to act.
➲ When "cta" is appended to Administrator, an abbreviation of the Latin phrase cum testamento annexo is being added which translates to mean that the Grant of Administration / Letters of Administration is being made "with the Will annexed".
This is an unusual situation as generally it is assumed that when an Administrator is appointed there is no Will.
For this to occur, the Will needs to be incomplete, such as is the case where:
❌ No Executor is named; or
❌ The appointed executor has since become incapacitated, or does not wish to act as executor.
When either of the above occur, an application may be made to the Probate Court to appoint someone else.
If the Probate Court approves the application, it grants what is called "Letters of Administration with the will annexed", sometimes written as "Letters of Administration cta’".
➲ An Affidavit is a sworn or affirmed written statement, that is made on oath by a person setting out the facts relevant to their case.
The person making the Affidavit (called a deponent) must swear or affirm that everything said in it is true before a person authorised by law to administer oaths.
Making a false statement in an Affidavit may subject the deponent to perjury charges.
➲ When an Affidavit is used to support an application to the Court.
➲ Related by marriage.
➲ To attach, add or append.
➲ Latin term referring to when people die together at the same time, and it is uncertain as to who died first.
➲ Latin term meaning all of the following: "shared blood" or a blood relationship, people who have descended from a common ancestor, the same blood line.
Can be distinguished from a Relationship of affinity, which is being related to someone by marriage.
➲ All the property (both real estate + personal property) a person owns in their sole name when they die.
The estate of a deceased person is what the deceased has left, whether by their Will or under the statutory rules on Intestacy (applied when there is no Will).
➲ An agreement (usually made in the form of a Deed) which sets out how property in the family is to be distributed.
➲ The passing of rights, property from one person to another on the occurrence of an event, for example death.
➲ The Probate Court has the power to dispense with the traditional formalities required by law to make a valid Will.
This allows the Probate Court to exercise their discretion to Grant Probate for a document which supposedly expresses the deceased person’s testamentary intentions, but which for some reason they hadn’t signed, and/or witnessed, according to the traditional formalities required by law.
➲ Meaning a person who acted "as if" they were the legally appointed Executor/Administrator, when they were not.
The Latin term "de son tort" means "of his/her own wrong".
The person who does this is liable to account to the beneficiaries and creditors of the deceased estate for any losses caused by their actions.
➲ Records of all financial transactions during the period of administering the deceased’s estate must be kept by the Executor/s.
When the administration has been completed the Executor/s then provide each beneficiary with a copy of the financial statements.
➲ See Probate.
➲ Documents which are used to commence legal proceedings in a court.
➲ When a Will does not effectively dispose of all of the deceased’s property, or the Will is ambiguously worded such that part of the estate is not capable of being dealt with effectively.
➲ A process by which the Will or a document alleged to be the Will of a deceased person is proven to be valid according to law.
A Grant of Probate is an official document certified and issued by the Probate Court as evidence that the Court has recognised and confirmed the authority of the person/s named as Executor/s to go ahead and deal with the deceased estate according to the deceased’s Will, and distribute their assets and property, both real and personal.
Grant of Probate must normally occur before the Executor/s can obtain title to the property forming the deceased estate, that is before “calling in ” the deceased’s assets.
If there is no Will the deceased has died Intestate and in such circumstances an Administrator is appointed and instead of a Grant of Probate they are granted Letters of Administration / Administration.
➲ The Probate Court is a specialist division of the Supreme Court, in each state and territory.
➲ A term more commonly used to refer collectively to Grants of Probate or Administration.
➲ If a deceased had assets in different states of Australia or in certain countries, namely Commonwealth countries where the Queen is the head of state, then it is generally possible to have a Grant of Probate issued by a Court in one jurisdiction recognised in another state or country.
This process of recognising the grant made in the other state or country is called resealing the grant.
NSW Reseal of Probate example:
Not all Grants from other countries can be resealed by the Supreme Court of NSW.
The Probate Court will only reseal Grants made in countries of the "Commonwealth Realm" where the Queen is, or was at the time of the grant, Head of State.
Such countries include the United Kingdom (England, Scotland, Wales and Northern Ireland), New Zealand, Papua New Guinea and Solomon Islands.
Recent grants from the following countries cannot be resealed: Malta, South Africa, Pakistan, India, Sri Lanka, Fiji, Hong Kong or The Republic of Ireland.
If a grant cannot be resealed then it may be necessary to apply for a new Grant of Probate in NSW.
➲ Sometimes a Grant of Probate cannot be made because there is some issue or dispute about the Will.
Once the issue / dispute has been resolved by the Probate Court it may then issue a Grant of Probate in solemn form.
The words "solemn form" indicate that Court proceedings have taken place and the dispute is now resolved.
There are many reasons as to why you may want a copy of someone else's Will.
🧩 Perhaps you are a relative of the testator (meaning: the person who has made the Will) and you would like some foresight as to the tax implications of any interest you may have.
🧩 Perhaps you suspect that the testator had been pressured into making a new Will whilst lacking testamentary capacity (meaning: capacity of a testator to make a valid Will).
🧩 Maybe you are a creditor of the testator, and you would like to peruse the Will in case it itemises the testator's assets.
Whilst the testator is still alive, there is nothing to stop you from asking the testator directly for a copy of the Will, though of course, the testator is in no way obliged to send you a copy.
Upon the death of a testator, the situation changes somewhat.
You could ask the executor (meaning: someone appointed by the testator to carry out the instructions on a Will) for a copy, though again, the executor is not obliged to do so unless you have a Statutory Entitlement (refer below for more information).
Generally, you can only obtain a copy of someone's Will once the executor had applied for, and been issued a Grant of Probate (meaning: right to carry out the instructions in the Will) by the relevant Probate Court.
Upon a Grant of Probate, a Will becomes a public document, accessible via a search on the Probate Registry.
However, this is a process that could take several months, and you may be required to bear some costs to make searches on a Probate Registry.
Where you have not been separately informed by the executor as to your interest under the Will (or whether you have an interest at all), it could be some time before you know anything of how your tax position might change or whether you need to prepare to contest the Will.
Fortunately, the following States (and Territory) grant a Statutory Entitlement to certain persons (as defined by the relevant legislation) access to a copy of the Will following the death of a testator, before a Grant of Probate:
⚖️ New South Wales - Succession Act 2006 - s 54
⚖️ Northern Territory - Wills Act 2000 - s 54
⚖️ Queensland - Succession Act 1981 - s 33Z
⚖️ Tasmania - Wills Act 2008 - s 63
⚖️ Victoria - Wills Act 1997 - s 50
The above provisions show some degree of variance from state to state, though they broadly share the same core approach in permitting:
✅ A particular class of people to request a copy of the Will from the person who has control or possession of the Will of a deceased testator (usually the executor);
✅ At the expense of the requestor;
✅ A Will in this context includes:
1️⃣ A revoked Will;
2️⃣ A document purporting to be a Will;
3️⃣ A part of a Will; and
4️⃣ A copy of a Will.
The common classes of persons permitted to request a copy of the Will are:
✅ Any person mentioned in the Will; this person does not have to be a beneficiary (i.e. they don't need to be given something under the Will; it is enough that they are named or referred to in the Will);
✅ Any person named in a previous Will as a beneficiary;
✅ A spouse/partner/parent/issue of the testator, except in …
➲ NSW does not include parent(s);
➲ NT does not include partner;
➲ QLD does not include partner;
➲ TAS does not include partner;
➲ VIC does not include issue, but includes children instead.
✅ A person who would have been entitled to a share of the estate of the testator had the testator died intestate (meaning: someone who died without a valid Will);
✅ A parent or guardian of a minor mentioned in the Will, or of a minor who would have been entitled to a share of the estate had the testator died intestate; and
✅ A creditor of the testator, or otherwise someone with a claim (in law or equity) against the estate of the deceased.
Note: The list above is a generalisation, created to help you gauge whether you are somewhere in the ballpark as to the class of persons who may request access to a Will before a grant of probate.
The specific provisions vary by State (and Territory) and can be found below.
There are additional classes in some states, and others narrow the classes described above.
You should take care to look over the list for your State/Territory before considering any action, or discussing your options in more detail with our legal team.
The category of persons entitled to inspect the Will of a deceased person in New South Wales can be found under s 54 of the Succession Act 2006 (NSW).
New South Wales provides for additional classes of people eligible to access a Will, found in paragraphs (h), (i) and (j) below.
With regards to paragraph (j), the Succession Regulations 2020 do not appear to prescribe any further classes of people.
As per subsection (2) of s 54:
A person who has possession or control of a Will of a deceased person must allow any one or more of the following persons to inspect or be given copies of the Will (at their own expense) -
(a) any person named or referred to in the Will, whether as beneficiary or not,
(b) any person named or referred to in an earlier Will as a beneficiary of the deceased person,
(c) the surviving spouse, de facto partner or issue of the deceased person,
(d) a parent or guardian of the deceased person,
(e) any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate,
(f) any parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate of the testator if the testator had died intestate,
(g) any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
(h) any person committed with the management of the deceased person's estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person,
(i) any attorney under an enduring power of attorney made by the deceased person,
(j) any person belonging to a class of persons prescribed by the regulations.
The category of persons entitled to see the will of a deceased person in the Northern Territory can be found under s 54 of the Wills Act 2000 (NT).
As per subsection (2) of s 54:
A person who has possession or control of a Will of a deceased person must allow any one or more of the following persons to inspect the Will and make copies of the will at their own expense:
(a) a person named or referred to in the Will, whether as a beneficiary or otherwise;
(b) the surviving spouse or issue of the deceased person;
(c) a parent or guardian of the deceased person;
(d) a person who would be entitled to a share of the deceased person's estate if the deceased person had died intestate;
(e) a creditor or other person having a claim at law or in equity against the deceased person's estate;
(f) a beneficiary of a prior Will of the deceased person;
(g) a parent or guardian of a minor referred to in the Will or a minor who would be entitled to a share of the deceased person's estate if the deceased person had died intestate.
The category of persons entitled to inspect the Will of a deceased person in Queensland can be found under s 33Z of the Succession Act 1981 (Qld).
Section 41, mentioned in paragraph (g) below, gives power to the Supreme Court of Queensland to make orders for the proper maintenance of the spouse, children or dependants from the estate of a deceased person, where the existing provisions for maintenance are inadequate.
An order for a s 41 order may be made by the spouse, children or dependants of the deceased, or by anyone acting on their behalf.
As per subsection (4) of s 33Z:
Entitled Person, in relation to a Will, means -
(a) a person mentioned in the Will, whether as beneficiary or not and whether named or not; or
(b) a person mentioned in any earlier Will of the testator as a beneficiary and whether named or not; or
(c) a spouse, parent or issue of the testator; or
(d) a person who would be entitled to a share of the estate of the testator if the testator had died intestate; or
(e) a parent or guardian of a minor mentioned in the Will or who would entitled to a share of the estate if the testator had died intestate; or
(f) a creditor or other person who has a claim at law or in equity against the estate; or
(g) a person who may apply for an order under section 41.
The category of persons entitled to inspect the Will of a deceased person in Tasmania can be found under s 63 of the Wills Act 2008 (Tas).
As per subsection (1) of s 63:
Any person having the possession or control of a Will (including a revoked Will) or a copy of any such Will and any part of such a Will (including a purported Will) of a deceased person must allow any or all of the following persons to inspect and, at their own expense, take copies of it:
(a) any person named or referred to in it, whether as beneficiary or not;
(b) the surviving spouse, any parent or guardian and any issue of the testator;
(c) any person who would be entitled to a share of the estate of the testator if the testator had died intestate;
(d) any creditor or other person having any claim at law or in equity against the estate of the deceased;
(e) any beneficiaries of prior Wills of the deceased;
(f) a parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate of the testator if the testator had died intestate.
The category of persons entitled to inspect the Will of a deceased person in Victoria can be found under s 50 of the Wills Act 1997 (Vic).
As per s 50:
A person who has possession and control of a Will, a revoked Will or a purported Will of a deceased person must allow the following persons to inspect and make copies of the Will (at their own expense) -
(a) any person named or referred to in the Will, whether as beneficiary or not;
(b) any person named or referred to in any earlier will as a beneficiary;
(c) any spouse of the testator at the date of the testator's death;
(d) any domestic partner of the testator;
(e) any parent, guardian or children of the deceased person;
(f) any person who would be entitled to a share of the estate if the deceased person had died intestate;
(g) any parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate of the testator if the testator had died intestate;
(h) any creditor or other person who has a claim at law or in equity against the estate of the deceased person and who produces evidence of that claim.
Unfortunately, in the ACT, South Australia and Western Australia, the legislation does not really provide for access to Wills prior to a grant of probate.
That said, in the ACT, s 32 of the Wills Act 1968 provides for the capacity of individuals to deposit a Will for safe storage with the Office of the Registrar. s 34 provides that a person may make searches on the register, though this does not mean that a person has access to a Will found on the register, not to mention the fact that a testator may well have stored his or her Will somewhere other than with the Registrar.
In Western Australia, s 40 of the Wills Act 1970 provides for the capacity of the WA Supreme Court to make, alter or revoke a Will on behalf of a person who lacks testamentary capacity. s 44 then states that any Will so made or altered is to be stored with the Principal Registrar.
s 45 then permits an individual to make applications to the Court to request a copy of the Will from the Principal Registrar.
These are provisions that are activated by a very particular set of circumstances (on amendment or creation of a Will by a court on behalf of someone lacking testamentary capacity), and will be of limited relevance to the vast majority of those seeking access to a Will prior to the grant of probate.
Credits:
This FAQ was prepared by Suk Jae Chung | Practical Legal Training (PLT) Placement, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
Preliminary Note: This FAQ focuses on the applicable time limits [by jurisdiction] when you are considering contesting an Australian Will.
The legal grounds upon which you can contest a Will are a different matter which is only dealt with partially here.
Stay tuned for a fuller discussion on legal grounds for contesting a Will in an upcoming FAQ.
Timing is vital to any legal matter, but it is particularly important that you seek legal advice quickly if you are considering contesting a Will.
In a practical sense, any challenge to a Will is going to be much more difficult where the executor (person carrying out the instructions of a Will) has already started to make distributions from the estate to the beneficiaries named in the Will, after being declared valid by the Court (i.e. probate has been granted).
As such, the relevant time limit to contest a Will depends on whether you are looking to challenge the Will before or after a Grant of Probate.
In general, you can contest a Will on two grounds:
1️⃣ The validity of a Will
➲ The contest should be acted upon quickly, preferably before a Grant of Probate, though Wills can still be contested and rectified after a Grant of Probate.
2️⃣ The contents of a Will
Example: For a failure of family provision or miscarriage of intentions
➲ The contest can be made after a Grant of Probate, though you should try to act as soon as possible, before the executor has started to make distributions from the estate.
Unfortunately, it can be hard to know whether you have legal grounds to challenge a Will when you haven't been provided with the opportunity to examine the Will.
A Will becomes publicly accessible upon Grant of Probate.
As detailed in our FAQ: Who is entitled to be provided with a copy of the Will and Probate Documents? most jurisdictions (except ACT, SA & WA) provide a statutory right to access a Will before a Grant of Probate, if you fall into an eligible class of persons in relation to the testator (the person who made the Will).
For everyone else, you are at the mercy of the executor's discretion; the executor could choose to send you a copy of the Will prior to a Grant of Probate, but they do not have to.
In one sentence: Check the Online Notices for an Application for Grant of Probate.
Who is this for?
If you do not have access to a copy of the Will or you would like to contest the validity of a Will.
Lack of access to the Will could be a significant problem, especially if you think that a Will may not be valid (for reasons such as a lack of testamentary capacity, undue influence or fraud).
Fortunately, in most states / territories, before an application for probate can be made, the executor must provide public Notice of Intention to Apply for Grant of Probate.
Notices of Intention to Apply for Grant of Probate are published on the sites linked below; please note that public notices are not legally required in South Australia and Western Australia. If, for some reason, you did not know who to contact with regards to asking for a copy of the will, you may find the relevant details from the notices.
Before a Will has been granted probate, it is possible to lodge something called a caveat on the Grant of Probate to prevent the Court from granting a Will to probate.
However, a caveat may not be lodged by just any person, despite what is suggested by legislation (see the table below).
Based solely on the legislation, it appears that in all states except the ACT and Queensland, any person may lodge a caveat.
In reality, this is NOT the case.
There are established cases which provide that anyone applying for a caveat must have both:
1️⃣ An interest in the estate (standing); as well as
2️⃣ Grounds to justify the application.
If you lodge a caveat in the absence of either of the above, you may be liable for Court costs with regards to the matter.
All that said, should you have the relevant standing, and appropriate grounds for contest, lodging a caveat represents the earliest time from which you might contest a Will.
By acting before the Grant of Probate, you minimise the risk of the executor having distributed some part of the estate already.
If you think you may be in a position to lodge a caveat on a Grant of Probate, we strongly advise you to contact us in regards to the matter, so that you do not run the risk of being liable for unnecessary costs.
In one sentence: The time limit applicable to you will depend on your legal ground for challenge.
A Will may be contested for a failure to provide for the "proper maintenance, education or advancement in life" of an eligible family member.
(More details will be provided in the separate FAQ on Grounds for Contest, but for now, think either spouse, de facto partner, children or other dependants only).
This is a challenge to the content of the Will (not the validity of the Will), therefore you do not have to try to contest the Will before a Grant of Probate, though you should nonetheless move quickly to minimise the chance that you are frustrated by distributions of the estate.
The time limits for a family provision contest are listed by state / territory below.
Note: In New South Wales and Queensland, the clock starts ticking upon the death of the testator, and not upon Grant of Probate as in every other jurisdiction.
In each state/territory, the Court, in its discretion, may extend the time in which a family provision contest can be brought, though the applicant for an extension of time must show good reasons for why a Court should do so.
In each state/territory, the Court has discretion to rectify a Will, where the Will does not carry out the testator's intentions.
In all jurisdictions except the ACT and SA, the Court may only exercise its discretion where the Will does not carry out the testator's intentions because either:
❌ A clerical error was made; or
❌ The words of the Will misinterpret the intentions of the testator.
In the ACT and SA, the discretion of the Court may be exercised in any situation in which the Will fails to carry out the intentions of the testator.
Further in regards to the ACT, if the executor for the estate is the state Public Trustee and Guardian, the limitation period to rectify a Will starts from when the Public Trustee and Guardian gives public notice (that is, before a Grant of Probate has been made).
Otherwise, the time limit starts from the Grant of Probate.
As with Family Provision contests above, the Court may, in its discretion, allow challenges past the time limits specified above, though again, the party applying for the extension must make a good case as to why an extension should be granted.
In this situation, it is highly relevant whether the executor has started to distribute the estate, as the Court may take this into account in considering whether to grant an extension.
Credits:
This FAQ was prepared by Suk Jae Chung | Practical Legal Training (PLT) Placement, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
NOTICE OF ENQUIRY REGARDING WHEREABOUTS* OF ORIGINAL WILL
Would any solicitor, firm or person holding or knowing the whereabouts* of a Will or other testamentary document of <insert name of the deceased> late of <insert deceased's address>, who was born on <Deceased's Birth Date> and who died on <Date Deceased>.
Please contact: <Your Name>, <Relationship to the Deceased/Company or Law Firm Name>. Phone: <Your Phone #>. Email: <Your email>.
^ Source: City of Sydney Law Society email to members: NOTICE OF ENQUIRY REGARDING WHERABOUTS* OF ORIGINAL WILL
*Sometimes spelled as WHERABOUTS!
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
For many reasons, especially given the potentially infinite life-span of a Charitable Trusts, it may well find itself with insufficient funds to achieve it's stated charitable purposes, in other words the Charitable Gift fails!
If the Charitable Trust has been set up by an experienced lawyer, the trustee of the Charitable Trust will have an express power of amendment to alter the terms such that it's objectives match it's restated charitable purposes.
A Charitable Trust can be defined as:
“A purpose trust that is directed to exclusively charitable purposes [1] and that exhibits public benefit [2]"
A trust is a Charitable Trust when it is established for charitable purposes (objects), which can be quite general (for example for the relief of poverty) or highly specific (for example the construction of a hospital to treat + conduct cancer research).
If this is not the case, the trustee of a Charitable Trust is under an obligation to apply to the Court for an Order to enable property to be applied Cy Pres, or be at risk of personal liability by acting in breach of trust.
In much the same way, the Executor of a Will may find themselves in a similar situation, where the estate is not sufficient to give effect to the Willmaker's charitable gift, or simply because the nominated charity no longer exists, or there is more than one charity to select from because the Will has not been specific enough when naming the charity [3].
Cy Pres (pronounced “Sigh Pray”) is a phrase adopted from the French meaning, “as near as possible” to the original intention.
Under the Cy Pres Doctrine the Court will take account of all the facts and circumstances, and if they can determine that the gift was made with a general charitable intent, they may exercise their discretion to make appropriate Cy Pres orders.
Footnotes:
[1] Leahy v A-G (NSW) (1959) 101 CLR 611.
[2] Attorney-General (NSW) v Perpetual Trustee Co Ltd (1940) 63 CLR 209).” (Encyclopaedic Australian Legal Dictionary, Lexis Advance).
[3] Estate of Polykarpou; Re a Charity [2016] NSWSC 409
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
