It is a very important aspect of the legal system that deals with how the property or possessions of a descendant will be passed on either to the heirs or the spouse.
It differs in every legal system and inheritance law in New South Wales the law pertaining to inheritance is the Succession Act 2006.
What is a will and should you make one?
A will is a legal document that is written by you to make sure that your assets and property are divided according to your own wishes.
It is of great importance for a person to write his or her own will in order to ensure that the assets are divided the way he wants and to avoid conflict.
One thing to note is that a person who is above the age of 18 can make a will. If a person who is less than 18 years old wants to make a will that can be done with the approval of the court.
How to make a will?
You need to hire a competent lawyer or attorney who will be able to guide you on how to divide the assets and draw up the legal framework required for a valid will.
What happens if there is no will in place?
In the case of an absence of a will the succession act has a formula to decide how the property and assets will be distributed amongst the family. This is known as intestate.
If a person does intestate
If that is the case then the spouse of the person will inherit the property and all assets. However, it is different if they had stepchildren etc.
Things get complicated because of the blended families that are a part of the modern world. The inheritance laws face a lot of complexities due to the nature of the modern world.
It will be better to look into a little bit of these complexities.
Rights of children who were born through donors
Due to the technological advancement in today’s world, there have been many solutions to the fertility issues faced by millions of people. How does the inheritance law come into play?
According to the inheritance law of New South Wales, the legal parents of the child are not the donors but the ones who consented to the procedure.
The children have no rights in the property or estate of the donors since they are not the legal parents.
For adopted children.
In cases where children have been legally adopted and the adoption has gone through and is recognized by the estate then the child loses any right he/she had over the estate of his biological parents.
They are treated like the biological children of the adoptive parents and will have the same rights as their half siblings if any.
However, an issue that has been highlighted by the aboriginal communities who have adopted many children informally. In the eyes of law their status is not the same as biological children or the ones who are legally adopted.
The stepchild has been not been given the same recognition in the New South Wales law as the biological child and there is one great qualification to it.
The biological child does not lose his/her right of inheritance even if the parents get a divorce or are separated but the stepchild does.
There are no rights of a stepchild in the New South Wales inheritance law if the parents got divorced or separated. This differs if one of the parent dies before aforementioned occurrences take place. The stepchild will have rights in this scenario.
Another important and the most vital factor is that the stepchild has to show they were “wholly or partly” dependent on the stepparent and were a part of the same household as the deceased at a given time.
This makes the inheritance law of New South Wales very difficult for stepchildren and very complex as well. This could be counted as one of the limitation in the law.
What if the person who dies has no children and no spouse?
Then the parents, grandparents, siblings and aunts or uncles of that person inherit the assets and property.
Can you challenge a will?
Section 58 of the Succession Act comes into play regarding this matter. A will can be challenged according to the inheritance law of New South Wales within 12 months from the date of the death of the will maker.
On what basis can a will be challenged?
If there is inadequate inheritance left for the child, spouse or someone that was close to the deceased, then the will can be challenged.
The procedure of challenging a will
There is a Family Provision Order application that needs to be filed which is then followed by an affidavit in which all the circumstances of the cases are presented in the Supreme Court of the New South Wales.
This is served on the person responsible to execute the will and he is asked to file a response, which can then ensure the validity of the will.
In these circumstances alternate dispute resolution is encouraged so the parties can settle the matter outside of court and not go through the tedious and not to mention extremely expensive process of fighting a case.
If that is not a possibility then the court will give its order keeping all factors and circumstances in mind. In this way the will can be set aside.
In conclusion the inheritance law can be very complicated and implementing the law and going around the complexities of the modern family in today’s society of New South Wales can prove to be a challenging task.
It is the very reason that one should hire a competent lawyer/Attorney to ensure that the will is drawn up in a way that will not leave any loopholes behind.
For people who are looking for their right, it is even more important for them to hire a lawyer who can understand and think in a manner that will guarantee you to be able to win your right.