Wills & Estates Newsletter – August & September 2019
Published on October 2, 2019 by Adelaide Ryan, Dianne Retief, Josephine Heesh, Joshua Dale and Rebecca Tidswell
August & September 2019
The Battle Over Bob Hawke’s Estate
The much loved former Prime Minister and Aussie legend Bob Hawke died on 16 May 2019. His estate is now set to come before the Court as his daughter, Rosslyn, is preparing to take action to dispute the Will.
When he died, Bob had a Will in place that left his entire estate to his widow, Blanche d’Alpuget. By separate agreement to the Will, lump sum amounts of $750,000 each were provided to his children, Rosslyn, Susan and Steve as well as Blanche’s son Louis.
The estate for distribution pursuant to the Will is large, including a family home estimated to be worth over $15M.
It has been reported that Rosslyn will be making a family provision claim on the estate pursuant to the Succession Act 2006 (NSW) ‘the Act’.
Rebecca Tidswell, Special Counsel
Are you almost out of time selling the deceased’s family home within two years of the deceased’s date of death?
If you sell a family home that was the deceased person’s main residence and not being used to produce assessable income just before they died, or was acquired before 20 September 1985, and it was passed to you as a beneficiary or as the trustee of the deceased’s estate within two years of the deceased’s death, then any capital gain or loss you make on the subsequent disposal is disregarded. In some circumstances, the Commissioner has discretion to extend the two year period.
‘Informal’ Wills
In an increasingly technological society where people are attempting to create wills on iPhone “Notes”, in a Word Document saved to a computer or through the use of a video recorded message, the courts have been forced to comment on what constitutes a Will.
The Succession Act 2006 (NSW) (‘the Act’) sets out that for a will to be valid, it needs to satisfy a number of formal requirements as to its execution. Section 8 of the Act allows for some exceptions to be made, where the Court may determine that a will is valid if it satisfies three requirements:
- there must be a document;
- which purports to state the testamentary intention of the deceased; and
- which the deceased intended to form their will.
Joshua Dale, Senior Associate
Connor Molloy, Lawyer
Wills & Estates FAQs
- Other than making a family provision application, what are the other grounds to challenge the validity of the will of the deceased person?
- Lack of testamentary capacity;
- Lack of knowledge and approval of the Will;
- Undue influence;
- Fraud.
- What can I do if I have serious concerns on the validity of the will of the deceased person?
Provided there is evidence supporting any of one of the grounds where the validity of the will of the deceased person is questioned, a person with an interest in the estate may lodge a general caveat in the Supreme Court of NSW preventing the court to make grant of probate without notice to the person lodging the caveat.
A caveat generally remains in force for six months and will lapse, but the period may be extended. It will not have any impact if a grant of probate has already been made.
There are significant costs implications for the person lodging the caveat particularly if the Court finds the caveat was lodged without any substance.
Contact Carroll & O’Dea if you have any concerns about the validity of a will of a deceased person
