Category: Probate, Wills & Estates

Telemon Lawyers > FAQs > Probate, Wills & Estates

What does it mean to have testamentary capacity?

Testamentary capacity is defined as the mental capacity of a testator while executing their will. A case, (Banks v Goodfellow (1870) LR 5 QB 549) affirmed by multiple Australian authorities including the New South Wales Court of Appeal in  (Mekhail v Hana [2019] NSWCA 197) sets out the following as a test of testamentary capacity. […]

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I have executed an Enduring Power of Attorney naming my son as attorney, can he make decisions without me knowing?

If you have executed an enduring power of attorney, you as the donor have signed a document that gives another person, the attorney, the power to deal with your financial matters on your behalf, even when you can no longer act for yourself. Anything your attorney does for you is as though you yourself have […]

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I have a ‘blended’ family, how should I prepare my will?

What is a blended family?   A ‘blended’ family can take many different forms. Typically it might be where a testator (the will maker) has children to a first marriage or partnership, that relationship ends, and he or she enters into a relationship with a new partner, oftentimes still with younger children. Sometimes, making the […]

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The administrator of Bob’s estate has died before completing administration. What happens from here?

Under these circumstances, the position of administrator becomes vacant. The rule that the “executor’s executor” assumes the administration of the deceased executor’s estate (which is set out in Section 13 of the Imperial Acts Application Act 1969 (NSW)) DOES NOT APPLY. This section applies only to executors (not administrators). The relevant sections of that Act […]

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Can I make a claim against an estate where I have been left out (or not left enough)?

The Succession Act 2006 (NSW) allows for eligible people to make a claim on an estate to rectify injustices that can arise. Section 57 of this Act defines eligible people as the: Wife or husband; Person who was living in a de-facto relationship with the deceased person; Child; Former husband or wife; Person who was […]

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Do I need a discretionary family trust?

Do I need a discretionary family trust? What is a family trust? A family trust is a discretionary trust set up to hold the assets of a family or to run a family business. No two discretionary family trusts are the same, yet there are two overarching benefits in establishing and administering any family trust. […]

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Can I avoid obtaining a grant of probate in an estate?

Obtaining Grant of Probate can be expensive. Not only is the lawyer’s fees for obtaining the Grant not insubstantial, there is also the application fee payable to the Supreme Court and the time taken to prepare the affidavit, file the notices and obtain the orders can be quite a while. However obtaining a Grant is not […]

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I think I deserved more out of my parents’ estate. What can I do about it?

You can contest a will if you believe its terms do not treat you fairly. Perhaps you have not received what you believe to be a fair share of the deceased person’s estate or you have been completely omitted from the will. Although the deceased person may have purposely left you with this share or […]

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Should my will include a Testamentary Discretionary Trust?

A testamentary discretionary trust (TDT) is a special type of trust created within your will. The TDT is different from a typical simple will.  In a typical simple will the bequests or gifts of the will are given directly to the beneficiaries (subject to any delay until the age set out in the will if the beneficiaries […]

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What’s the difference between appointing “joint” and “joint and several”?

In the three primary instruments of estate law, that is the will, the Enduring Power of Attorney and the Appointment of Enduring Guardian, it is not uncommon in certain circumstances to appoint more than one person to the primary roles, respectively, the executor, the Attorney and the Enduring Guardian. Other than in the case of a will where the […]

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