Unsigned Will Dispute
The matter involves a deceased estate issue in New South Wales concerning an unsigned will left by the client's father. The father's partner, who was not in a legally established relationship, is asserting her position as the next of kin and seeking to be appointed as the executor without a valid will. The partner is requesting the client and their sibling to sign documents to endorse her as the administrator of the estate, which includes a house, various personal assets, and a motorcycle. The only claims on the estate are from the partner and the client with their sibling.
Questions about this case
These answers have been verified by a lawyer in the LEAP networkWhat steps should we take to challenge the partner's claim as the next of kin and executor with the unsigned will?
To challenge the partner's claim, it may be necessary to apply for a grant of Letters of Administration. As children of the deceased, you and your sibling have a priority over a non-legally recognized partner in making this application in New South Wales. It's important to gather evidence showing the absence of a legal relationship, such as separate living arrangements. Consulting a solicitor to evaluate the unsigned will's validity is advisable, and it may be necessary to file a caveat to prevent the partner from acting as an administrator until the matter is resolved.
Can an unsigned will be considered valid at all, and under what circumstances might it be admitted to probate in New South Wales?
Generally, an unsigned will is not considered valid as it does not meet the necessary legal requirements. Nevertheless, the court can exercise discretion to accept an unsigned will if it finds clear evidence that the deceased intended the document to serve as their will. Such evidence might include statements confirming the deceased's intentions or witness corroboration.
What are the legal implications of signing the papers to allow the partner to be the administrator, and should my sibling and I consent to this?
Signing papers to allow the partner to be the administrator could give her considerable control over the estate. It might be wise to withhold consent unless there's certainty regarding her intentions aligning with your father's wishes. If there are concerns about her acting contrary to your interests, independent legal advice should be sought before proceeding.
How might the lack of a legally recognised relationship between our father and his partner affect her claim to the estate?
The absence of a legally recognised relationship affects the partner's automatic rights to the estate under intestacy rules, which typically prioritize spouses, domestic partners, and children. The partner's claim may be weakened, requiring her to provide substantial evidence of a de facto relationship to support her claim.
Are there specific legal guidelines for distributing the estate when there is an unsigned will and the deceased has surviving children?
Without a valid will, the estate distribution falls under intestacy laws, meaning the children inherit equally if no spouse or de facto partner exists. The Letters of Administration must appoint an appropriate administrator to manage the estate.
How long after receiving consent letters to appoint the partner as administrator do we have to act?
There is typically a 14-day response period to consent letters regarding administration. However, since the situation involves an unsigned will, acting promptly is crucial if you plan to challenge the appointment.
How do we respond to the solicitors' emails regarding administration?
When replying to solicitors, it's important to clearly state your position regarding the unsigned will and the partner's claim. Emphasize the lack of legal validity and express your intent to potentially challenge her claim.
Can we respond to the solicitor ourselves?
Yes, you may respond directly to the solicitor; however, seeking advice from a legal professional could ensure your interests are protected and that you fully understand the implications of your correspondence.
I want to get legal advice. As a request has been made for her to be administrator, how do we deal with the 14-day response time?
If a request has been made for the partner to be the administrator, it is important to act swiftly within the 14-day window. You should consider lodging a caveat against the administration grant to prevent her appointment while addressing your concerns.
