When someone dies, their assets (the “estate”) usually can’t be dealt with until the Supreme Court verifies the circumstances and issues a “grant” to the person who has legal authority to administer the estate.

In New South Wales, there are specific legal grounds to challenge a Will’s validity, and the Court can set it aside if those grounds are made out.

When someone applies for a Grant of Probate in New South Wales, the Supreme Court process is designed to confirm who has authority to deal with the estate. If you suspect the Will being put forward is not valid, lodging a caveat can stop a grant being issued until your concerns are properly addressed.

The starting point in making a Will is that you have what is called testamentary freedom to gift your assets in any manner you wish. Whilst this stands, the law contains provisions giving the Court power to alter the distribution of your Estate after you die if you have not made adequate provision for a certain class of people, such as a spouse or a child.

When you include a right to occupy or a right to reside for life in your Will, the property is transferred into your Trustee’s name and is held on trust. Legal ownership therefore remains with your Estate. The resident has no legal right or proprietary interest in the property.

If you enter into a new relationship and either you or your partner have children from a previous relationship, estate planning becomes more complex as you need to ensure adequate provision is made in your Will for both your spouse and your children.