My parents in law made provisions in their wills for spouses and ex-spouses. Both lived in Melbourne, now deceased.
I was made to move out from the family home in November 2022 with only a suitcase of clothes. I had to live in emergency housing provided by DVA. All my personal and business assets are in the house and my ex-wife refuses to return…Read More

Dear CD,
The law that governs BFAs is the Family Law Act 1975 (or the Family Court Act 1997 if you are in a de facto in WA). This legislation does not cover testamentary intentions, and if included in a BFA, those intentions will not be enforceable.
A BFA is designed to document how the parties to the agreement intend to financially settle in the…Read More

We have a property in my sole name, but we are both paying the mortgage. I would like to include clauses in the BFA to the effect that if I die, then the property is to go equally to my de facto partner and my children…..
CD

Dear DD,
Family Provision Act claims
If a person dies and leaves out a person from their will (say spouse or child or other financially dependent person) then the excluded person may make a claim on the estate under the Family Provisions Act (State based legislation).

This is difficult to do and any claim is limited in the maximum amount that…Read More

…finally, a question about some [Family Provisions Act] clauses in the draft BFA, can somebody explain why there are clauses relating to family provision legislation?
DD

Dear AB,
if you have a will and you name your minor children as beneficiaries, the assets will be distributed according to the terms of the will. However, because minors cannot legally own property or receive an absolute gift, the assets intended for them will typically be held in trust until they reach the age of majority or another specified age…Read More

What happens when I have a will where I give everything to my children who are minors?

AB

Dear NJ,
The law that governs binding financial agreements if the Family Law Act 1975 or if you are in WA and in a de facto relationship, the Family Court Act 1997 (WA). Any testamentary declarations or clauses in a BFA are not enforceable under this legislation.

The appropriate way to achieve what you are requiring is to have both your wills re…Read More

Dear NJ,
The law that governs binding financial agreements if the Family Law Act 1975 or if you are in WA and in a de facto relationship, the Family Court Act 1997 (WA). Any testamentary declarations or clauses in a BFA are not enforceable under this legislation.

The appropriate way to achieve what you are requiring is to have both your wills re…Read More

….Lastly, we would like a clause in the BFA that if we buy a joint property (tenants in common) if one of us dies the other can remain in that property for as long as they choose to (ie the surviving person is not forced to sell).

….Lastly, we would like a clause in the BFA that if we buy a joint property (tenants in common) if one of us dies the other can remain in that property for as long as they choose to (ie the surviving person is not forced to sell).

Your friend may be able to include his partner in his visa application provided that they have genuine domestic relationship. You may refer to the link for a concrete definition of a de facto relationship – https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s4aa.html

Hi AS,
Yes, After you login, you can open the application file and then look for section for uploading additional documents. Scan the signed Affidavit of Plight, Condition and Finding (including an exhibited certified copy of the will) to PDF and upload it to the portal.
You can then wait to hear back from the Supreme Court.

MV

Thank you MV,
I am making the application in South Australia. Can I upload the signed Affidavit to the same portal as the original application?
AS

Dear As,

This type of requisition letter from the Supreme Court is standard. Even though they have the original will, they are asking the applicant(s) (who are the same persons as the “deponent(s)” and the “executors”) to provide more information about the will in the form of an Affidavit which is either done under oath or affirmed.

In your ca…Read More

Dear Customer,

1. If the signed and certified BFA is a binding separation agreement (we call them BSAs to help distinguish between financial agreements at the beginning of a relationship and a financial agreement used to document the terms of a financial settlement) then the clauses included allow for the transfer of real estate which is exempt…Read More

1. Can I use my signed BFA to affect property transfers with the concessional land tax treatments?
2. Is it correct that a court stamped version is required to conduct the super transfer?

Thank you.

Hi.

I filed an application for probate in Queensland and the Supreme Court has sent a letter asking for more information. It is about the original will having multiple staple holes in at the top. Why are they asking if they have the original will and what do I need to do. Any help would be great.

Hi Rayda,
He has been working in IT for 7 year after completing his degree in Computer Science. He has a girlfriend that he may want to bring. She is the same age and has an Arts degree. How would this work? Does he apply and come to Australia and she follows later under a de facto Visa.
Thanks again for your help.

Yes, his age and profession are in demand in Australia. How long he’s been working as an IT?

Hi Vando,

You can file for divorce on your own through what’s called a sole application, provided you have been separated for at least 12 months. You do not need the other party’s consent to proceed.

If you know where the other party is currently living, you are required to serve them the divorce papers. However, if you do not know their w…Read More

Hi Cassey.
If you have a will with only 1 signature by a witness, then the will does not meet the legal requirements to be a valid will. It is called an “informal will”.
If there is a valid will, then the process is to apply for probate of the will.
If there is an informal will, then the process is to apply for Letters of Administration with the…Read More

I have to get probate for my brother’s estate. I found a will which look original but it has only one witness. Is this going to be a problem?

Thanks and regards,

Cassey

Hi Cassey,

The rules of intestacy for Victoria (Administration and Probate Act 1958) say that this is how an estate is to be distributed if there is no will:
A. If there are no children but a surviving spouse OR domestic partner, then the whole of the
estate will pass to the spouse or the domestic partner.

B. When there are no children but a…Read More

Hi GRT,

Sorry for the delay in responding.

This is not my area of experience, however, the tradie is required to be insured against any injury while on the job in your house. I sensible tradie would also be insured against property damage caused by them.

If the tradie refuses to repair, replace or pay for the damage, you have the right to make…Read More

A friend from the UK is asking me to get some information about immigration to Australia and if he qualifies at his age. He is a UK citizen and has been to Australia 3 times on holidays. He has a degree in IT and is 28 years old. Can he apply?

Thank you.

I am estranged from my wife and I want to move on. I want to file for divorce. We are not in contact. Can I do this on my own? I do not know where she is living now. Does this make it more difficult? Thanks.

Thanks MV!

I am in Victoria. I cannot find any older will signed by my brother. What do the rules of intestacy say about the estate?

Cassey.

Hi

Looking for some advice. Hired a tradie to do a job on the home and he ended up damaging something else. i saw the below on google, is that correct? that they are liable for the damage they caused? if so how do i go about it, do i need to take him to a small claims court or something?

“Yes, in New South Wales, if a tradie (tradesperson)…Read More

Hi Sofeeya.

If one party changes their will without getting the written agreement of the other party, and the affected party passes away, then the children of the deceased party can challenge the will of the surviving party and make a civil claim against the surviving party for breach of contract and seek financial compensation through the…Read More

Thanks MV.

What if one party changes their will without informing the other party?

Cheers, Sofeeya

Hi Cassey.
If you have a will with only 1 signature by a witness, then the will does not meet the legal requirements to be a valid will. It is called an “informal will”.
If there is a valid will, then the process is to apply for probate of the will.
If there is an informal will, then the process is to apply for Letters of Administration with the…Read More

I have to get probate for my brother’s estate. I found a will which look original but it has only one witness. Is this going to be a problem?

Thanks,
Cassey

Hi Sofeeya,

Well no, it does not work as well as a binding will contract.
If you each had 50% and one party died, then that 50% would be transferred to the children of the deceased party. These children may not want to wait years until the survivor wanted to move out. This is pretty reasonable given the current economic climate. The children…Read More

Hi MV,

What if we were to buy the house as tenants in common with 50% each. Does that work as well?

Thanks,
Sofeeya

Hi Sofeeya,

If I understand your enquiry, if you buy a house together in joint names as JOINT TENANTS, and one of you passes away, then the survivor receives the whole of the house. This is irrespective of what is in either person’s will as the survivorship rules means that he asset in questions does not form part of the estate and the will d…Read More

I got married again a year ago (2nd marriage) and this is my wife’s 2nd marriage too. We have children from our first marriage but none together. We want to sell our individual investment properties and buy a family home. I have read a bit about binding wills. Will this help us solve a problem if one of us passes away suddenly? Any experience with these?

Hi Beverley.

In my experience from speaking to family law practitioners over the years, the most common challenges are:
1. Signing a BFA too close to the date of a wedding or date moving in together. The typical claim is that the effected person may have been pressured into signing the BFA. For example, the stronger financial party may hint that…Read More

Hi MV,

Thanks for the response. What are the types of reasons that cause BFAs to be challenged and are they successful challenges?

Beverley.

Hi Vando.
I have seen the DIY wills that are sometimes shown at Post Office branches. The wills themselves are in a valid format.
The issue with DIY wills is that not everyone reads the instructions and signs the wills correctly. If no-one checks a will that is not signed properly, then if you pass away, then the will may not be accepted by the…Read More

Hi Sofeeya.

Yes, technically, the parties can make an application to the Court without legal advice and certification. The role of the Court is then to examine all the facts (which they do even if there are lawyer’s certificates) but they take a greater role. Unless the orders sought are within the Court’s tight tolerances, they will reject the…Read More

Hi MV,
I believe that we can make an application without having to use solicitors? The solicitors are the most expensive part. Why do you recommend a BFA which does need solicitors?
Sofeeya

I need to do a will as I have children now. Are the wills at the post office valid? My friend had his done at his solicitor and it cost $600. I am wanting a cheaper option. Thanks.

V

Hi Beverley.

The short answer is yes, binding financial agreements (“BFAs”) are enforceable in the Courts. There are certain legal pre-requisites which must be met for the Financial agreements to be binding and enforceable.
Firstly, for a BFA to be binding, each party must have firstly received independent legal advice from that party’s own l…Read More

Hi Vando.
All you can do is put in the numbers that you have from the nursing home and old bank statements.
The bank cannot give you more information for privacy reasons until you are made the Administrator of the estate at which time you become the legal personal representative of the estate. An estimate is usually very acceptable. If there are…Read More

Hi MV.

The nursing home has given me some paperwork showing the details of the accommodation bond, but the bank will not give me exact information. How can I fill in the paperwork if I do not know the exact amounts?

Vando

Dear Vando,
I link to the Succession Act 2006 NSW is below:

In NSW the rules about how the estate is to be distributed can be found in Chapter4 Intestacy, but in short:
1. Spouse / domestic partner
2. Children or grandchildren of a deceased child
3. Parents
4. Brothers and sisters
5. Grandparents
6. Aunts and uncles
7. The State of NSW
You can…Read More