Inheritance in Australia – rectification of a will in New South Wales

In today’s article, we have addressed the issue of amending a will in the light of the regulations in force in New South Wales. This is the oldest and most populous state located in what is now Australia. According to statistical data from the Australian census (data from 2016), nearly 200,000 people of Polish descent live in Australia on a daily basis. It is not surprising, therefore, that our compatriots are often called to inherit in Australia. In such cases, knowledge of the current legal status in force in this country is necessary.

However, due to the fact that Australia is a federal state, inheritance law in Australia is not uniform. Different regulations are encountered there, which further complicate the legal situation of inheritance. Depending on the place of the estate’s opening (specifically, the state in which the inheritance takes place), the legal situation of the heir and other persons directly interested in acquiring the inheritance in Australia will be shaped differently.

Under the provisions of inheritance law in New South Wales, amending a will is done by a decision issued by the competent court. It acquires competence to amend the will of the deceased only in two cases, so this institution of inheritance law should be considered as absolutely exceptional. Australian inheritance law associates effective drafting of a will with significant legal consequences, and the will itself represents the last will of the deceased. Therefore, amending a will is possible only exceptionally. It can take place in the following situations:

– the will contains a clerical error, or
– the content of the will is in contradiction to the actual intention of the testator.

It is worth noting that the provisions of inheritance law in New South Wales grant the court freedom to determine the circumstances justifying the need to amend the will. For this reason, the court is not bound by the request to amend the will, as otherwise, there could easily be violations of the last will of the testator. The overriding legal aim of the legal construction of amending a will provided for in Australian inheritance law is, after all, to protect the last will of the testator, not to safeguard the particular interests of the heirs.

In order to initiate proceedings for the amendment of a will, it is necessary to submit a relevant application. Importantly, those directly interested generally have 12 months from the date of the testator’s death to do so. Such a limitation included in the provisions of inheritance law in Australia has been stipulated due to the need to protect the interests of third parties. Any amendment to the will directly affects the situation of the other persons inheriting the estate.

In justified cases, the court is entitled to extend the deadline for submitting the application for amending the will. It may even extend this deadline at any time if:

– it deems it necessary, or
– the final division of the estate has not yet been made.

At the same time, it must be borne in mind that the above exceptions cannot be subject to an expansive interpretation; on the contrary, they should sometimes be interpreted restrictively. For this reason, the circumstances justifying an extension of the deadline for submitting an application to amend the will in Australia should objectively exist and not raise any doubts from the perspective of third parties.

Inheriting in Australia, on a completely foreign continent, involves logistical problems, language barriers, and differences in law, among other issues. Therefore, the safest solution to avoid mistakes and effectively acquire an inheritance from a deceased person is to use the services of professionals who will take care of all the formalities. The many years of experience of lawyers from Lawyer in Europe guarantee the effective conduct of proceedings aimed at determining the final acquisition of an inheritance from abroad. Our specialists provide invaluable support and knowledge, which they are happy to share with all their clients.

As one of the main areas of practice of the Lawyer in Europe law firm is international inheritance law, our lawyers will also handle cases related to inheritance in Australia. Therefore, if you have been called to inherit in this country or need to use another form of assistance in matters of foreign inheritance law, we cordially invite you to contact Lawyer in Europe.