Deed of Disclaimer or Renunciation of Benefits under an Australian Will

Key Terms used in the Grant of Probate or Letters of Administration in Australia

Administrator

➲ 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.

Administrator cta

➲ 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’".

Affidavit

➲ 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.

Affidavit in Support

➲ When an Affidavit is used to support an application to the Court.    

Affinity, Relationship of

➲ Related by marriage.

Annex, Annexe

➲ To attach, add or append.

Commorientes

➲ Latin term referring to when people die together at the same time, and it is uncertain as to who died first.

Consanguinity

➲ 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.

Deceased Estate

➲ 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).

Deed of Family Arrangement

➲ An agreement (usually made in the form of a Deed) which sets out how property in the family is to be distributed.

Devolves, Devolution

➲ The passing of rights, property from one person to another on the occurrence of an event, for example death.

Dispensing Power

➲ 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.

Executor de son tort

➲ 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.

Financial Statements

➲ 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.

Grant of Probate

➲ See Probate.

Originating Process

➲ Documents which are used to commence legal proceedings in a court.

Partial Intestacy

➲ 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.

Probate

➲ 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.

Probate Court

➲ The Probate Court is a specialist division of the Supreme Court, in each state and territory.

Representation

➲ A term more commonly used to refer collectively to Grants of Probate or Administration.

Reseal of Probate

➲ 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.

Solemn Form

➲ 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.

Can I Get a Copy of Someone Else's Will?

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.

Statutory Entitlement to a Copy of Someone's 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

Similar Core Approach to the grant of Statutory Entitlement

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.

New South Wales

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.

Northern Territory

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.

Queensland

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.

Tasmania

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.

Victoria

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.

What about the ACT, South Australia and Western Australia?

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.

Background ➲ Time Limits Vary

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.

Contests Prior to a Grant of Probate‍

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.

To Caveat or not to Caveat?

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.

Contests After a Grant of Probate

In one sentence: The time limit applicable to you will depend on your legal ground for challenge.

Family Provision Obligations

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.

Misinterpretation of Testator's Intentions and Rectification

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.

In making general enquires regarding the whereabouts* of the Will you can use the following example^ as a template

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.

Charitable Gifts fail for many reasons

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.

What is a Charitable Trust?

A Charitable Trust can be defined as:

“A purpose trust that is directed to exclusively charitable purposes [1] and that exhibits public benefit [2]"

Charitable Trusts need not have any vesting date, and may exist in perpetuity

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).

The Court may use its discretion to grant Cy Pres Orders

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.