Craddock Murray Neumann – Probate and Estate

Level 3 131 York St Sydney CBD NSW 2000

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At Craddock Murray Neumann we have experienced solicitors who can assist you with everything from drafting simple wills  through to complex wills using testamentary trusts, and from appointing Powers of Attorney (people who can look after your financial affairs on your behalf) through to appointments of Enduring Guardian (looking after your medical care).

Our Wills & Estates team is experienced in the preparation and completion of wills and has comprehensive resources to enable us to produce documents specifically tailored to your needs.

In addition we have an association with licensed financial planners who can advise on estate planning, life insurance, income protection insurance, and trauma insurance.

Our Wills & Estates services include:

preparing wills

handling the estates of people who die without a will – intestate estates

estate planning

applying for a Grant of Probate

applying for Letters of Administration

Family Provisions Act claims – acting for people left out of a will or people defending a will

probate litigation

contested wills

lodging caveats

Powers of Attorney

appointment of Enduring Guardian

testamentary trusts.

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The New South Wales Succession Act (“the Succession Act”) and associated regulations allows for an application to be made to the Court for protection of a person who has lost testamentary capacity. An order can only be made if the person who has lost capacity is alive at the time the order is made by the Court.

Under the Succession Act an application can be made to the Court for an order authorising:

  1. A Will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity; or
  2. A Will or part of a Will be revoked on behalf of the person who lacks testamentary capacity.

The Court Application

In order to make the application a person must first apply to the Court for leave to make the application.

The application for leave must include the following information:what do i do about lost capacity applications

  1. A statement about the nature of the application and the reasons why the application is being made;
  2. Evidence of the lack of testamentary capacity of the person for whom the order is sought;
  3. Estimates of the size and character of the Estate of the person for whom the order is sought;
  4. A draft of the proposed Will or revocation that the applicant wants to be approved by the Court;
  5. Evidence of the person’s wishes including any previous Wills made by them;
  6. Evidence of the likelihood of the person acquiring or regaining testamentary capacity;
  7. Evidence of any person who would be entitled to benefit if the person died without a Will (i.e. died intestate).
  8. Evidence of any person who might reasonably be expected to be included in the Will; and
  9. Evidence of any charitable gift that the person might reasonably be expected to make in their Will.

It is apparent from the above list of requirements that a large amount of evidence is required to be put before the Court before they will even consider granting leave to make an application for an order.

This is why you need to seek expert legal advice from a Wills and Estates lawyer if you wish to apply to the Court for an order.  As the proceedings are heard in the Supreme Court this requires a lawyer with knowledge and proficiency in this jurisdiction who is aware of the procedural and legislative requirements to obtain a successful order.

The Court hearing of the application for leave

Once the application for leave has been made the Court will hear the application, grant leave to make the application and make the orders sought if it is satisfied on the following matters:

  1. There is reason to believe that the person is, or is reasonably likely to be, incapable of making a Will; and
  2. It is appropriate for the order to be made; and
  3. The proposed Will, alteration or revocation is one that would have been likely to have been made by the person if they had testamentary capacity; and
  4. Adequate steps have been taken to allow all persons with a legitimate interest in the application to be represented in the proceedings.

Our expert Wills and Estates lawyers have the experience you need to apply to the Court for protection of a person who has lost testamentary capacity.

At Heckenberg Lawyers we don’t take our clients’ confidence for granted: we work hard to earn it by providing an efficient, cost-effective service which puts your interests first and doesn’t cut corners. We take pride in achieving repeat custom and winning clients by word of mouth recommendation.

If you need advice about a Will or an Estate matter please call 02 9221 2779 or email info@hecken.com.au to arrange an initial consultation with principal lawyer Graeme Heckenberg at our centrally located Sydney offices.

See our Will Dispute Lawyer & Contesting Wills page for more information on the Wills & Estates services we provide or contact us for advice specific to your situation.

What do i do lost capacity court applications

 

What do i do if im left out of a will

The following case study is from a Sydney Law Firm specialising in Will Disputes.   The main points of this case are:-

  • When one parent remarries and leaves the estate to the new spouse.
  • Power of Attorney sells home and buys a new home in his name only.
  • Children could not claim on their mothers’ house as she was no longer on the title.
  • 12-month window for Will Dispute nearly exhausted in negotiations
  • Notional Estate

Our firm successfully represented two sisters who were left out of their mother’s Will.  Their mother contracted a terminal illness and died in her 50s.  Each adult daughter had a young family.  The mother had remarried and had made a mutual Will with her second husband in terms that she left everything to her husband, and that on his death he would leave everything to the two daughters. The husband made a Will leaving everything to his wife, and then to her daughters.

In addition, the wife granted the husband a Power of Attorney over her financial affairs.

Once the wife became ill and was no longer able to be cared for at home she had to be removed to a nursing home.  While she was living in the nursing home and without her knowledge her husband, using the Power of Attorney, sold their home and with the proceeds of sale purchased a new home in his name only.  He did not inform his wife of his actions.

The daughters only learned of these events after the death of their mother, when her estate revealed that she did not own her home.left out of a will what can i do

During the next 11 months the husband continued to promise the two daughters that he would come to an accommodation and provide for them, however, nothing eventuated and the daughters sought our expert advice.  It was important that they did so as their right to bring a claim on their mother’s estate would have lapsed after 12 months, and they would have been robbed of their inheritance if they continued to let the negotiations with the second husband prolong for a further month.

Heckenberg Lawyers was able to file an application on the eve of our clients’ rights expiring and to preserve their rights of inheritance on their mother’s estate.

We were then able to conduct a Court case where we were able to reveal the transactions by which the mother’s real estate and bank accounts had been taken by the second husband for his own benefit and the purchase of his new home.

This involved the concept of ‘notional estate’, whereby evidence is presented to the Court that although the property no longer forms part of the deceased person’s estate (in this case, as it had been taken prior to her death) it can under certain circumstances be identified and brought back into the estate for accounting purposes, which we were successfully able to do in this case.

We are pleased that we were able to achieve a successful result for both our clients and they were able to secure their inheritance, something which their mother had always intended them to receive but they were in very real danger of losing completely.

Heckenberg Lawyers are recognised as leaders in the law of contested estate litigation, disputed Wills and Probate law.  Deceased estate disputes and cases where people have been left of out of the Will are often factually complicated and involve precise legal principles. We have been specialising in these areas of the law for over 20 years, and provide cost-effective and expert legal advice.

See our Will Dispute Lawyer & Contesting Wills page for more information on the Wills & Estates services we provide or contact us for advice specific to your situation.

What do I do left out of a will lawyer