Commence a contested will claim: Mother transfers property to one child prior to death

A son finds that many years ago his widowed mother transferred her property to her daughter,

his sister. Now, with the mother has gone, the son finds that there is nothing to pass under the

Will, and everything is effectively already in the name of the daughter.

He said that the Will may be invalid but this does not change the position for him. There is

nothing in the estate to pass to him so there is no point in arguing as to whether the Will is

valid or not valid.

He does not believe that there is anything technically wrong with the transfer and he believes

that his mother did the transfer of the property to her daughter through her solicitor with full

knowledge of what she was doing.

He will try and see whether there are any other assets against which he can claim but

otherwise, commencing a challenge to the Will will probably fail.


Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

Even if a person is successful in contesting a Will, if there are no assets in the estate, any Court

Order in their favour will be ineffective. As the house was transferred some time ago, it seems

that his application cannot help him to retrieve that property.

Careful legal analysis needs to focus on whether the mother had capacity to transfer the property

to the daughter, but based upon the facts, it would seem that she did.


An estate administration issue: Property left in Will disposed of before death

A son found that under his father’s Will he was left one house, another house was left to his

brother, and a small amount of cash remained to be divided between them.

Before the father died the house that was said to be going to this son in the Will, was sold and

he was told that apart from half of the cash, he would get nothing.

As a child he is able to contest the Will and a factor in his favour would be that it was

intended that his father was to leave him this house, and the will was not rewritten after it was

sold. However he will not be able to claim the full value of the house.

It is also quite possible that the proceeds of the sale can be traced and if they are held in a

bank account and/or were disposed of by an attorney during the life of the deceased, it might

be possible to have it pass under the Will.

It may also be necessary to apply to the Court to interpret the Will in a favourable manner or

to rectify it.

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

The effect of selling the property is that the house that was to go to the son no longer is owned

by the estate and he cannot benefit from that.

If the property was sold by an attorney, and/or if the assets are clearly traceable to particular

account or other form, the operation of the law and the Will may mean that these assets can pass

to the son who was intended to benefit, rather than going as “cash” between him and his brother.


This suits a Mediation Settlement: Daughter wants to claim assets in family trust

The daughter of a wealthy family has found that her father died bankrupt, and that all of his

assets are held in a family trust.

The father lived in Victoria and that is where the trust was established.

She wanted to know whether she could commence something like a Will dispute, by claiming

against the assets of the trust, but as she has never been distributed anything through the trust,

she has no claim against the trust assets at all.

If she had lived in New South Wales it might be possible under the “Notional Estate”

provisions to access the trust assets for any capital award that may be given to her if she

contested the Will.

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

In Victoria and most mainland states, the law does not enable someone to access assets in family

trusts, in order to satisfy a claim, if there are not sufficient assets in the estate. The situation is

different in NSW, where notional estate provisions apply.


Commence a contested will claim: Father’s Niece Inherits – Children Lose Out

Two sons find that shortly before he died their father made a new Will leaving everything to

his sister’s daughter (their favourite cousin). The sister prepared the Will. Would they be

successful if they contest the Will?

Comments by Wills & Estate Specialist – Terry Johansson

So long as they have a sufficiently strong relationship with the father, and are able to prove

financial need they would probably be successful. They should also investigate whether in

fact this Will is valid, as it is quite possible that the deceased father suffered undue influence

or did not have capacity to sign the Will.


Commence a Will Contest Claim: The brother has moral claim but no financial need

Two brothers share equally in their mother’s estate. Each will inherit two properties, they

have their own homes as well. One of the brothers feels badly done by because he has lived

with the family all of his life, and he said he was unable to work, lost any right to earn a

pension, did not earn a salary, and derived no financial benefit by living with his parents. He

wants more than 50%.

Comments by Wills & Estate Specialist – Terry Johansson

Under the Inheritance Act it is essential for any claimant who is contesting a Will to prove

financial need: in this case the brother inherits a very substantial amount from the estate, and

is unlikely to be successful in any claim for further provision. If the brother has contributed

directly to the maintenance and upkeep of any of the properties, he may be able to claim an

equity, which may give him some ownership of the house, and this would be taken into

account and paid to him if he was successful with the claim, before the division is made

under the Will.


Application of the Intestacy Rules: Does joint property pass under Intestacy Laws?

A husband has found that his deceased wife has left nothing to him in her Will. Their major

assets are two properties, each of which are held as joint tenants. What is the position for


Comments by Wills &  Estate Specialist – Terry Johansson

Assuming that deceased did not live in NSW, then he will become the surviving proprietor of

both properties and they will pass into his name outside of the Will and it makes no

difference whether or not his wife provided for him in relation to those properties.

The same situation applies in NSW except that someone may contest the Will and may be

able to claw back her half share of the properties to pay for the award made to them so her

ownership is not immune. Otherwise, in all other States, the transfer of the titles to the

husband are immune from any claim by anyone who contests the Will.


Defend a Will Challenge: How transfers during life can stop someone successfully contesting a Will

It is a basic proposition that what you own in life, your property, becomes your “estate” after death.

Then if you have made a will, you leave your estate to your desired beneficiaries, or if no will, to be

divided between your next of kin. Simple, right?

What if you decide to give away all your possessions before you die to just one person?

Then when you die, the will would be read but there would be nothing in the estate because it has

all been transferred to another person by an “inter vivos” gift, which means “between the living”.

In most States this is a relatively simple way to defeat a claim for further provision (a Will contest) if

you think one is likely to happen after you die. After all, what can they do? The property is already

gone and the deceased person may not have owned it for some time before they died.

This happened to an oldest son who had no idea his father had given a half share in his house, worth

about $750,000, to his sister some 2 years before he died. The father and daughter then held the

property as joint tenants. The father and daughter then held the property as joint tenants. The son

suspected his sister had in some way forced her father to transfer the half share to her, because she

was caring for him at the time. However, the consideration for the transfer was “love and affection”

and there was no proof of any psychological pressure on the father other than his complaints to the

son that the sister was threatening to go overseas to work and leave him on his own if he did not

“look after her”.

The ownership of the property by way of a joint tenancy meant that when the father died, an

application to the titles office to transfer the whole of the property to the sister by right of

survivorship was all that was required for the sister to take full title.

As the father had left a will which left everything to the sister anyway, one can ask why was half the

property transferred in the father’s lifetime?

It is hard to avoid concluding that it was in order to defeat the son’s claim for further provision after

death by emptying the father’s estate during life.

In all States except NSW this mechanism will remove the property from the deceased’s estate.

Interestingly, the situation in New South Wales is different to other States as their Succession Act

2006 has provisions which will return “notional estate” in certain circumstances where inter vivos

transfers have occurred in the 4 years before death.

The Law Reform Commission in Victoria has considered, and rejected, the inclusion of similar

notional estate provisions in the corresponding Victorian legislation.

In the son’s situation, there was little that anyone could do, as the deceased did not live in New

South Wales.

Comments by Wills & Estate Specialist – Terry Johansson

It is always worth a phone call to a lawyer to get advice on your position- because every case is

different. CWPL has the expertise to carefully analyse the facts and apply the law in each jurisdiction,

whether in Australia or overseas.

Terry Johansson and the CWPL team is up to date on the latest cases in this area and will be able to

advise in detail on your particular circumstances.

00683.6/DR21198/AL/JJ/201-/AU/C/XXX/- /MAC/GI/?

Application of the Intestacy Rules: Defacto partners – Eligibility to Contest a Will and Rights Under the Intestacy Rules

While there is often no distinction made between a marital relationship and a defacto relationship

(one where the partners are not legally married) in certain areas of the law, the same cannot be said

of their treatment in the laws of wills and estates.

Contesting a Will

Usually a spouse or dependent spouse have similar rights to contest the Will of their deceased

partner. If a live – in partner does not technically qualify as a de facto partner, they may end up with

no rights to claim from the estate whatsoever.

Intestacy Laws: No Will

The status of a spouse by marriage is unassailable – either you are, or are not, legally married. If your

spouse dies without a will, then a married partner will inherit the estate either wholly, or if there are

children of the marriage, then usually in shares with the children.

If you are a defacto spouse you will not be entitled to a penny under the Intestacy Rules.

What is a Defacto Spouse?

A defacto spouse is subject to a legal definition of the relationship, and this usually requires the

parties to have lived together for two or more years before the death, as partners and or on a

domestic basis. Frequently there are obvious factors which render the relationship a defacto

marriage- joint assets, pooled finances, children etc.

Sometimes the relationship is less easily defined- the couple may not live together, have any

children together and may keep their finances separate. However, this does not necessarily mean

that the couple are not in a defacto relationship. Sometimes there is an element of discretion or

secrecy, where not all aspects of the relationship are made public.

In these circumstances, how does the Court view these relationships when asked to decide whether

or not the relationship is a defacto relationship?

Typically, the Court looks at a range of factors to determine whether a genuine defacto relationship


These include:

 Domicile

 Finances

 Reputation

 Sexual Relationships

 Children

The defacto spouse has virtually no ?? rights to an unmarried partner.

However sometimes various additional factors help to clarify whether a defacto relationships exists.

Sometimes people will point to the fact that each party was drawing a pension at the single rate to

discredit a relationship claimed to be defacto. However, this is rarely held by the Court to be

determinative of a relationship’s status as defacto. The view which Centrelink takes is often not so

broad, and in some cases can result in action being taken for overpayment.

Comments by Wills & Estate Specialist – Terry Johansson

It is always worth a phone call to a lawyer to get advice on your position- because every case is

different. CWPL has the expertise to carefully analyse the facts and apply the law in each jurisdiction,

whether in Australia or overseas.

Terry Johansson and the CWPL team is up to date on the latest cases in this area and will be able to

advise in detail on your particular circumstances.

00683.6/DR21198/AL/JJ/201-/AU/C/XXX/- /MHD/QL/?

Application of the Intestacy Rules: Son ends up with family business before father died: Application of the Intestacy Rules

A father and son had each a half share of a family business which they ran, and the father

insisted upon keeping his half share separate because he wanted to benefit the rest of his

family in his Will. By various means the son ended up taking control of the family business,

arguing with the father, and eventually he ended up with full ownership, for nothing. He had

paid for half, but he claimed that the half, formerly owned by the father, was effectively a


The father had made a Will leaving everything to his other four children and nothing to the

son he shared the business with. The father remarried, but he and his wife were killed in a car

accident on their honeymoon, and he died without a Will.

The circumstances were such that the new wife being deceased has no claim to challenge the

Will, and all of the assets were in her husband’s name anyway. As a result of the Intestacy

Rules the son would take a ¼ share of all the other assets in addition to the family business.

What can the other family do?

Comments by Terry Johansson, Specialist Lawyer

The four children who do not have the family business can contest the Intestacy Rules,

similar to a contest of the Will, alleging that the Intestacy Rules do not treat them fairly.

They would need to show that the brother got more than his fair share of the overall family

assets because of the manipulation of the father’s business, and the Court would take into

account as to whether he had earned the other half of the business. If the son with the

business could show that he had paid for everything, and that there was no unjust enrichment

of any description, then the claim by the other four may fail unless there are assets apart from

the family business. In reality it would probably settle without a court hearing.


Commence a contested will claim: Extended family claim from grandfather’s estate

A woman married and her father-in- law was always very supportive, and when her husband

died, he took her in, plus the children. This meant that three generation of family were living


He was a widow, and a relative turned up from overseas before he died, who said that as he

was single everything should go to the relative. He changed his Will to make that relative the

sole beneficiary. And as a result the daughter-in- law and the two children who were still

living in his house, have found themselves getting nothing under the estate. They need to

know whether or not they could claim as dependents.

Comments by Terry Johansson, Specialist Lawyer

It depends on which State the deceased lived, as that determines whether or not the daughter-

in-law can claim. However, the daughter-in- law may be able to claim as a dependent who

has lived with the deceased, or someone who was dependent upon the deceased at the date of

death. The strength in this is that she has been dependent upon the deceased for a long time.

The grandchildren may claim under two heads: as grandchildren who were dependent upon

the deceased that is specifically permitted in the state, or as people who had lived with the

deceased and were dependent on the deceased at the date of death.