Your Will

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A will is a written document that sets out how you want your assets (your estate) to be dealt

with after you die. The law about wills affects people when they make their own will and when

they are managing the affairs of someone who has died. In both cases, there are many legal

requirements to be met.

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Who can draft a will?

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There are no formal requirements about who can draft a will. You can write one yourself or

engage a professional to do it for you. However, the will must conform with specific

requirements to be considered a valid will, otherwise your will may be deemed invalid and

executor may have difficulties when applying for probate. For this reason, it is recommended

that you use a lawyer or your State Governments Trustee and Guardian i.e. the NSW Trustee

and Guardian.

Who you appoint as your executor(s) should be considered carefully.  Often it is a family member however if you elect to appoint a professional service to administer your Estate such as the NSW Trustee and Guardian, your Estate will be charged for such services.  These costs could be tens of thousands of dollars depending on the size of your Estate. 

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Why use a lawyer?

When it comes to drafting a will, it's important to ensure that your wishes are clearly stated and legally binding. A lawyer can provide valuable expertise and guidance to help you navigate the process and avoid any potential legal issues. By working with a lawyer, you can have peace of mind knowing that your assets will be distributed according to your wishes.  

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For a will to be valid, it must comply with strict legal requirements which are found in section 6 of the Succession Act 2006. A will is NOT valid unless:

• It is in writing;

• It is signed by the will-maker in the presence of two or more witnesses who also sign in the presence of the will-maker and each other; and

• The will-maker intended the document made to be a will.

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Where a beneficiary to the will acts as a witness, any beneficial gift to the beneficiary (or possibly his or her spouse), will be void at common law. This is called the witness beneficiary rule. In most jurisdictions, the gift can be saved if there are two other witnesses or the court is satisfied that the will-maker intended the gift to be made, or anyone who would otherwise lose out agrees that the gift should still go to the witness beneficiary.

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Other considerations

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In an effort to save money, some people use an Australian Will Kit, usually purchased from the Post Office. Many disputes however are caused by the use of these kits because the will is not drafted properly to protect the beneficiary entitlements and/or the instructions on how the assets are to be dealt with are confusing and unclear.

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Another consideration is asset protection. If this is important to you, a standard will may not be the answer. At Sapphire Legal, we can customise your will to include testamentary trust mechanisms. Whether to protect assets from potential family law disputes, minimise income tax, capital gains tax (CGT) and other tax leakage or allow for the preservation of welfare entitlements for a beneficiary who suffers from a special disability, flexible mechanics for allocating and distributing your estate can be included in your will.

Smarter estate planning is not just for the wealthy. Even if all you own is your house, a will that includes testamentary trust mechanisms can offer significant advantages.

A standard (or simple) will is one that does not include testamentary trust mechanisms. Even if this is all you require, it is important to ensure that it conforms with the statutory requirements for a valid will.

Whether you prefer a standard will or a will with testamentary trust mechanisms, our documents have been meticulously designed in consultation with leading Australian estate planning experts so you can be assured that the document you receive is valid.  

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Estates

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When a person dies, there are a number of enquiries the executor, family members or close friends will need to make in relation to the person’s estate. One of the first things that must be done is locating the deceased's will. If no will is found, it is usually presumed that the person died without a will (intestate).

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Probate

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Probate is an order from the court stating that the will is valid. It clears the way for the

executor(s) to be able to administer the estate.

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Under section 8 of the Succession Act 2006, a document that appears to contain the

deceased wishes, even if it is not executed in accordance with the formal requirements,

may still be considered to be their will, if the court is satisfied that this is what the person

intended.

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If you are not sure whether a document is a valid will, we can review the document for you.

Applying for a grant of probate

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If there is a will and an executor, formal administration will involve the executor applying

for a grant of probate from the Equity Division of the Supreme Court.  If there is no executor (i.e. because the will failed to nominate an executor or the executor has died), a beneficiary under the will can apply for letters of administration with the will annexed (see below).  Assuming there is an executor either they, or a lawyer instructed by them can file an application with the Court online.  As part of this process, it will be necessary to publish a notice of intention to apply for probate.  This notice can only be published on the Supreme Court online registry.

The minimum documents required for applying for a grant of probate are:

1. The original will (and codicils if applicable).  If the original will cannot be found, the executor may still apply for probate using the copy however they will need to provide evidence of what efforts they went to to try and find the original will.  Probate granted on a copy of a will will be a limited grant.

2. A summons, signed by the executor or their lawyer;

3. An affidavit of executor which includes:

a. A statement as to whether the deceased person left any other document attempting to set out their testamentary intentions;

b. The date the online notice was published;

c. Details of all assets and liabilities of the estate;

d. A copy of the death certificate;

e. A statement that the executor will administer the estate according to law;

f. A statement that there is no reason why the executor should not be granted probate of the will.

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Letters of administration

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If there is no will or no executor to a valid will, it will be necessary to apply for Letters of Administration. In such a case, the estate will be distributed in accordance with Chapter 4 of the Succession Act 2006. This is commonly known as the intestacy rules. These rules will set out who will be entitled to inherit from the estate and how the assets will be distributed.

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Letters of Administration, may be applied for by someone who is entitled to either the whole of the estate of a share of it. Ordinarily, this is a family member i.e. spouse, sibling or adult child of the deceased. If there is no next of kin, or no one considered appropriate or willing to apply for the grant, then the court may grant administration to either the NSW Trustee & Guardian or any other person the court deems suitable.

For obvious reasons, it is preferable that you make a will so that you can decide who you want to leave your estate to rather than allow the intestacy rules to decide for you.

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Applying for Letters of Administration

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Similar to applying for grant of Probate, you must first publish a notice of intended application on the Supreme Court Registry at least 14 days before applying for letters of administration.

The minimum documents required for applying for letters of administration are:

1. Summons for Letters of Administration (or Letters of Administration with the will annexed if a valid will does exist);

2. A Grant for Letters of Administration (or Grant for Letters of Administration with the will annexed);

3. Affidavit from the Administrator (the persona applying for the grant) that annexes the assets and liabilities of the Estate;

4. The original will, if it exists;

5. Death certificate.

6. If there is more than 1 person who is entitled to a share in the estate but are not joint applicants, a Consent of Administration from each of those persons entitled to a share in the estate.

7. If you are the de-facto partner of the deceased, you will also need to include evidence of your relationship with the deceased. If you were married to the deceased, your relationship is automatically recognised.

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Letters of Administration need to be applied for within 6 months from the date of death. If you apply after 6 months, you will also need to file an Affidavit of Delay with your application.

Our fees

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The costs of obtaining Grants of Probate or Letters of Administration in New South Wales will depend on the size of the estate. The Legal Profession Uniform Law Application Act 2014 (NSW) and Schedule 3 of the Legal Profession Uniform Law Application Regulation 2015 regulates these costs by using a scale. At Sapphire Legal, our professional fees are fixed in accordance with Schedule 3.

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The current scales of regulated costs include:

• Instructions on obtaining a grant of probate or letters of administration;

• Attendance to verify details of assets as supplied by the executor (where required);

• Preparation of court documents;

• Attendance on executor/applicant to sign;

• Lodging documents;

• Answering requisitions from the court (if required);

• Perusing grant or letters of administration and advising executor/administrator.

Please note that this scale does not include disbursements i.e. valuation fees, advertising costs and filing fees and matters relating to the administration of the estate itself. These costs would be in addition to the statutory legal costs for apply for Grants of Probate or Letters of Administration.

Current filing fees for Probate in NSW as of 1 July 2023 to 30 June 2024 are:

• For estates valued at less than $100,000, no filing fee applies;

• For estates valued between $100,000 and $250,000, the filing fee is $863.00;

• For estates valued between $250,000 but less than $500,000, the filing fee is $1,171.00

• For estates valued between $500,000 but less than $1,000,000, the filing fee is $1,797.00.

• For estates valued between $1,000,000 but less than $2,000,000, the filing fee is $2,394.00.

• For estates valued between $2,000,000 but less than $5,000,000, the filing fee is $3,991.00.

• For estates valued at $5,000,000 or more, the filing fee is $6,652.00.

As a general rule, the courts filing fees increase on the 1 July each year.

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Family Provision

The court recognises the freedom of testation, that is, the right of a person to decide

how they wish to gift their estate. In some instances, the court may be asked to intervene

and overrule the testators wishes in what is called a Family Provision claim.

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Eligibility to make a claim for a family provision order is dependent upon the claimant

meeting any one or more of the eligibility requirements in section 57 of the Succession

Act 2006.

The court’s jurisdiction to hear a family provision claim will only be enlivened if the

claimant can establish ‘eligibility’ to make a claim. Accordingly, even if a claimant has a

compelling moral claim upon the deceased estate, a court must dismiss that claim if the

claimant does not establish eligibility.

A further requirement to be met is proof that the applicant has been left without adequate provision for maintenance, education and advancement in life. If the court forms the view that the deceased still had a moral duty to make provision for the applicant, it will more likely than not grant a family provision order. In answering this question however, the value of the estate will be considered in light of all events in life and the needs of the other beneficiaries.

The relationship between the deceased and the applicant will be put under the spotlight. For example, an adult child who was adequately provided for before the deceased passed away or who behaved badly towards the deceased whilst they were alive, will need to convince the court why they should now be entitled to anything from the estate.

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If you are considering making a family provision claim or you are the Executor or Administrator defendant to a claim, please contact Gayle at Sapphire Legal to make an appointment.