You are planning ahead, or a death has just made it urgent. Both start here.
Greenline Legal acts in wills, powers of attorney, enduring guardianship, probate and estate administration, and family provision claims in New South Wales — the work governed by the Succession Act 2006 (NSW) and the two statutes that sit beside it.
Wills and estates in New South Wales run principally on the Succession Act 2006 (NSW). It governs how a will is made and revoked, what happens when there is no will, and who may claim against an estate. Powers of attorney sit under the Powers of Attorney Act 2003 (NSW) and enduring guardianship under Part 2 of the Guardianship Act 1987 (NSW) — three separate statutes for three documents people routinely assume are one.
We act at both ends of that timeline: putting the documents in place while you can give instructions, and dealing with an estate after a death, including where the will is disputed.
Where we act
Three documents, three different jobs
A will operates only on death. A power of attorney is about money and property during your lifetime, and can take effect immediately or from a future date — useful if you are overseas, become unwell, or lose capacity. An enduring guardian makes health, accommodation and medical decisions when you no longer can. Neither survives you: both end at death, and authority passes to the executor or administrator.
A will is not a form. Section 6 of the Succession Act 2006 (NSW) requires it to be in writing and signed by the will-maker, with that signature made or acknowledged before two or more witnesses present at the same time, at least two of whom then attest and sign. Will kits fail those requirements often enough to be worth avoiding. Where they are not met, the document may need an application to the Supreme Court under s 8 before it can operate at all — an application the estate pays for, with no certainty about the result.
After a death
Where there is a will and an executor willing to act, the executor applies to the Supreme Court of New South Wales for probate. Where there is no will, the application is for letters of administration; where there is a will but no executor able or willing to act, it is for letters of administration with the will annexed. In each case a notice of intended application is published on the NSW Online Registry before filing, and the application cannot be filed until a set period has passed. An application made well after the death must also explain the delay.
The grant is not the end of it. The executor or administrator then calls in the assets, pays the debts and any tax, and distributes what remains. Administration is where most of the work sits, and the part people underestimate when they agree to act.
When the will is disputed
Two quite different things get called “contesting a will”, and they run on different rules.
- A challenge to validity — that the will-maker lacked testamentary capacity, did not know and approve of the contents, was unduly influenced, or that the will was not executed as the Act requires.
- A family provision claim under Chapter 3 of the Succession Act 2006 (NSW), which does not say the will is invalid. It asks the Court to order provision out of the estate for an eligible person for whom adequate provision was not made.
A family provision application runs to a strict time limit from the date of death, which the Court can extend only in defined circumstances. New South Wales also has a notional estate power, which in defined circumstances lets the Court designate property that has already left the estate as available to meet an order. It has no equivalent in most other Australian states.
What it costs
We quote per matter rather than from a rate card. You get the figure in writing before work starts, with disbursements and GST identified separately from our professional fees. In an administration the executor is our client, personally liable under the costs agreement and entitled to be indemnified out of the estate for costs properly incurred. Disbursements include certificates, searches, valuations, and the Supreme Court filing fee on a probate application, which is scaled to the value of the estate.
Questions people ask us about wills and estates.
Do I still need a will if everything is jointly owned?
Often, yes. Property held as joint tenants passes to the surviving owner by survivorship and never forms part of the estate, and superannuation is not an estate asset unless it is paid to the legal personal representative. But most people hold something in their sole name, and a will is also where an executor is appointed. Without one, Chapter 4 of the Succession Act 2006 (NSW) decides who takes what.
What is the difference between contesting a will and a family provision claim?
A challenge to validity says the will should not operate at all — because of a lack of capacity, undue influence, or a failure of the formal requirements. A family provision claim accepts the will is valid and asks the Court to order provision out of the estate for an eligible person. They are separate applications with separate evidence, and only the second carries the 12-month limit in s 58 of the Succession Act 2006 (NSW).
Someone has died and we cannot find a will. What now?
The usual searches are the deceased's papers and safe, their bank, any solicitor they used, and NSW Trustee & Guardian. If no will is located, the application to the Supreme Court is for letters of administration rather than probate, and the estate is distributed under the intestacy rules in Chapter 4 of the Succession Act 2006 (NSW) rather than by anyone's wishes.
Is a power of attorney enough to deal with someone's estate?
No. A power of attorney made under the Powers of Attorney Act 2003 (NSW) ends on the death of the person who made it. From that moment the authority to deal with the estate belongs to the executor named in the will, or to the administrator appointed by the Court. Continuing to operate an account under a power of attorney after a death is a common and serious mistake.
Can we do this without going to court?
An uncontested grant is dealt with on the papers rather than at a hearing, so administration itself usually involves the Court only to that extent. A disputed estate is litigation, and family provision proceedings in New South Wales are ordinarily referred to mediation before a hearing. What is realistic in a particular estate depends on the assets, the beneficiaries and the evidence, and we will tell you where we think it sits.
Tell us what's happened.
Tell us whether you are making a will, administering an estate, or dealing with a claim against one, and when it happened. You'll get a straight answer about the next step and what it will cost.
Information on this site is general in nature and is not legal advice, and may have been overtaken by a change in the law. Contacting us does not create a solicitor–client relationship.