About Oliver Morrisey – Founder and Director of Empower Wills & Estate Lawyers

A NSW Supreme Court family provision hearing is the final court determination of a claim brought under Chapter 3 of the Succession Act 2006 (NSW). The judge hears evidence, considers submissions, and decides whether to make a family provision order. Most claims settle at mediation under Practice Note SC Eq 7, but those that proceed

A probate caveat is a formal notice filed with the Supreme Court of NSW that prevents a grant of probate or administration from being issued in a deceased estate. It is governed by Part 78, Division 10 of the Supreme Court Rules 1970, and remains in force for 6 months. Caveats give interested parties time

Notional estate is a NSW-only mechanism that lets the Supreme Court designate property the deceased moved out of their estate before death, or that was distributed afterwards, as available to satisfy a family provision order under the Succession Act 2006 (NSW). NSW is the only Australian state without notional estate laws. Empower Wills and Estate

The two-stage test for family provision claims in NSW determines whether an eligible person receives a share of a deceased estate. It comes from Singer v Berghouse and is applied under sections 59 and 60 of the Succession Act 2006 (NSW). For over a decade, I have helped clients work through this test. Empower Wills

Who pays capital gains tax (CGT) on a deceased estate will depend on the timing of the sale. As there is no inheritance tax in Australia, the transfer of an asset from the estate to a beneficiary does not trigger a CGT liability. However, the beneficiary may need to pay CGT later if they sell

A right to occupy property NSW (often referred to as a “right of residence”) is where a person who owns property (the owner) grants a second person the right to reside in a property after the owner dies. It is usually rent free and for a specific period (i.e. 12 months) or until an event

Under NSW succession laws, for a will to be valid it must be made by someone with sound mind, memory and understanding; the person must have known and approved the terms of the will; and the will must not be the product of undue influence or fraud. To be of sound mind, memory and understanding,

We are often asked, ‘What is the difference between a deceased estate and a testamentary trust?’ A deceased estate is a term used to describe the estate of a deceased person. When a person dies their executor (if they died with a will) will usually apply to the Supreme Court of NSW for a grant

In NSW, only property owned by the deceased person in their sole name, or as Tenants in Common with another person, will fall into the deceased person’s estate. On the other hand, property owned as Joint Tenants will not fall into the deceased person’s estate, but rather, will pass to the surviving joint tenant under

During a separation or divorce, under Australian family law, an inheritance may be treated as part of the property pool. The Federal Circuit and Family Court of Australia’s task is to make orders that are just and equitable under the Family Law Act 1975 (Cth). Timing, use, and financial contributions all matter. If an inherited

In most cases, inheritance is not counted as income for tax purposes in Australia. Under Australian tax law, amounts you receive from a deceased person’s estate are generally tax-free for personal income tax purposes. However, tax can arise later in the following ways: Capital gains tax (CGT): if you later sell an inherited property or

Yes. Inheritance can affect child support in NSW, where it increases a parent’s income or financial resources.  Although an inheritance received as a lump sum is not automatically counted as income, an increase in financial resources may result in Services Australia reassessing the parent and their ability to pay child support.  Understanding Inheritance and Child

Probate costs in NSW will depend on the size, nature, and complexity of the estate. When we are asked “how much does probate cost in NSW?” and “is probate expensive in NSW?”, we explain that probate costs are made up of three main costs: legal fees, court filing fees, and third-party expenses. When Is Probate

Whether wills need probate in NSW depends on the circumstances.  Probate is a court process through which the named executor or executors obtain the legal authority from the Supreme Court of NSW to administer a deceased estate.  Wills go to probate so assets can be lawfully transferred. Probate gives the executor authority to collect and

Yes, inheritance can affect your pension in Australia under Centrelink rule, as it is counted in your asset test or income test. Centrelink inheritance rules are strict, and there are very limited ways to avoid your pension being impacted. However, there are some strategies that can be implemented to help retain your pension. Pension Types

Grandchildren may wonder about their inheritance rights when a grandparent dies, particularly if their parent had previously died.  A grandchild’s rights will depend on the terms of the will (or, where there is no will, intestacy laws) and also on the nature of the relationship between them and their grandparent.  Regardless of whether the grandchild

We often get asked, “What is probate and when is probate not required in NSW?” Probate is the legal authority granted by the Supreme Court of NSW to administer a deceased estate. The executor may need to apply for probate.  However, a grant of probate is not required in every case, and certain assets can

After probate is granted in NSW, the executor can begin estate administration, including collecting assets, paying debts, and distributing to beneficiaries. The executor will not have legal authority to administer the estate until probate has been issued by the Supreme Court of NSW. Collecting and Managing Estate Assets Once probate has been granted, executors can

Yes, a sibling can contest a will in NSW in certain circumstances. The first step when contesting a will as a sibling involves determining whether the sibling meets the definition of an “eligible person” under section 57 of the Succession Act 2006 (NSW).  To satisfy the definition of “eligible person”, a sibling must establish: They

With more younger families unable to afford their own house, more remain living with their parents, which gives rise to the question – can a daughter-in-law contest a will in NSW?  Yes, a daughter-in-law can contest a will in NSW in certain circumstances.  For a daughter-in-law to be an eligible person under section 57 of

We often get asked, “Can a brother contest a will in NSW?”  Yes, brothers can contest a will in NSW in certain circumstances.  A brother can contest a will by making a “family provision claim” against the estate of their deceased sibling under section 59 of the Succession Act 2006 (NSW). For the claim to

A person is entitled to leave their estate to whoever they wish.  However, if a spouse fails to leave adequate provision for their surviving spouse’s maintenance, education, or advancement in life, the surviving spouse has the right to apply to the court for further provision from the estate. In NSW, the Supreme Court has the

A will that has been revoked is no longer valid and has no legal operation. When a person dies with a will (the testator), it is often necessary to locate their prior wills to identify which will is the last valid will, as this will govern how the deceased estate is distributed. What Does it