Caveats in Family Law

When a relationship ends, figuring out who gets to keep certain property can be a cause of concern, especially if you have been contributing to mortgage repayments on a property owned solely in your former partner’s name. What happens if you break up? Can your partner just sell the house without telling you? This is where a caveat may assist, in certain circumstances.

What is a caveat?

A caveat is like a public record indicating an interest in real property. If you lodge a caveat on a property, it means that the registered proprietor is unable to sell or deal with the property without the caveat being removed from the title.

Why and when to lodge a caveat?

In certain circumstances, including where you can establish an equitable interest in a property, a caveat may be used to protect your interest, or to delay certain dealings with a property that you may not know about or consent to. The Family Court has dealt with cases involving caveats in the past and has determined that a mere interest in a property as a result of an arguable case for an adjustment of property interests between separated parties may not (of itself) be a caveatable interest. Care must accordingly be taken when exercising such a right or taking such a step to lodge a caveat over a property not legally owned by you.

How to lodge a caveat?

To lodge a caveat, you must be able to demonstrate that you have a legal or equitable interest in the property. This may include by having made financial contributions towards the acquisition or improvement of the property. The application process involves completing specific forms and submitting them to the land titles office, as well as paying a fee. It is very important to seek legal advice before you do so, as lodging a caveat without a proper basis can have consequences, including in some circumstances financial penalties.

Does a caveat expire?

In jurisdictions like the ACT, a caveat remains on the title of a property once registered, until the caveator takes steps to remove it or the registered proprietor of the property applies for the lapsing of the caveat. If a caveat is disputed, the issue may need to be resolved in the Supreme Court, where a judicial officer decides whether the caveat is valid based on the evidence presented to the Court.

If you have a query about lodging a caveat and you are separated or considering separating, you should seek specialist family law advice.

Our team at Robinson + McGuinness is ready to guide you to ensure your rights and interests are prioritised. Contact us today to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Contesting a Will – Family Provision Claims in the ACT

The Family Provision Act (ACT) 1969 provides the pathway for certain individuals to contest a Will (or the laws of intestacy in the event there was no valid Will) if the individual feels that inadequate provision for the proper maintenance, education or advancement of life has been made for them under the Will (or by the laws of intestacy). For the Family Provision Act (ACT) 1969 to apply, the deceased must have left property in the ACT, or have died in the ACT.

It is not as simple as saying “I didn’t receive anything” or “I want more”; rather, the applicant needs to be eligible to make a claim and be able to show that they were financially dependent upon the deceased before the deceased’s death.

The following people can make an application to contest a Will in the ACT:

• A current or former partner of the deceased – this includes the deceased’s spouse, de facto partner (having been in a relationship for at least 2 continuous years), or being the parent of a child of the deceased person;

• A child of the deceased;

• A stepchild of the deceased – but only if they were maintained by the deceased immediately before the deceased’s death;

• A grandchild of the deceased – but only if that person’s parent died before the deceased, or if the child is not maintained by their parent immediately before the deceased’s death; or

• A parent of the deceased – but only if the parent was maintained by the deceased immediately before their death, or the deceased is not survived by a partner or children.

An eligible applicant can challenge the Will by making an Application to the Supreme Court of the ACT within 6 months of the date of a Grant of Probate or Letters of Administration being granted.

The Supreme Court will consider the following in deciding whether they are satisfied that in-adequate provision for the proper maintenance, education or advancement of life of the Applicant was made in the deceased’s Will (or by the laws of intestacy):

• The character and conduct of the applicant;

• The nature and duration of the relationship between the applicant and the deceased;

• Any financial or non-financial contributions made by both the applicant and deceased to the acquisition, conservation or improvement of property of either person (if applicable);

• Parent and homemaker contributions of the applicant and deceased (if applicable);

• The income, property and financial resources of the applicant and the deceased;

• The applicant’s capacity to gain meaningful employment – the Court will also consider that of the deceased while they were alive;

• The financial needs and obligations of both the applicant and the deceased while they were alive;

• The applicant and deceased’s respective obligations to support any other person;

• The terms of any orders concerning the payment of maintenance (both spousal maintenance and child maintenance) relating to the applicant and/or the deceased; and

• Any other matters the Supreme Court considers relevant.

In the event the Supreme Court is satisfied that inadequate provision has been made for the applicant, it has the power to make orders that it thinks fit out of the estate. The Supreme Court is not restricted to dealing with the residue of the estate (i.e. anything that has not otherwise been specifically gifted), but rather can make orders concerning all property of the estate, including property specifically gifted to other individuals.

Two examples of the type of Orders that the Court may make are, the transfer of ownership of property to the applicant and a lump sum payment to the applicant. To achieve the latter, it may be necessary for the Court to order the sale of specific property.

Family provision claims can be complex and nuanced. In the event you are considering filing a family provision application you should first obtain specialist advice in relation to the evidence that you can give in support of your application, and the prospects of your application being successful.

Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton

Applying for Probate and Letters of Administration

Losing a loved one is an emotionally challenging experience and the responsibility of administering their estate can feel overwhelming. There are a number of financial and legal processes involved in managing a deceased person’s assets and liabilities, and this may include applying for a grant of probate or letters of administration.

What is an executor?

An executor is a person appointed by the deceased to manage their estate after they pass away. The executor is responsible for collecting assets, paying debts and distributing assets to beneficiaries in accordance with the deceased’s wishes.   

What is probate?

A grant of probate authorises an executor to manage the estate of a deceased person in accordance with their will. To apply for probate, the executor will need to gather documents relating to the estate, including the original will, death certificate, and supporting documents regarding the deceased person’s assets and liabilities.

There are a number of steps involved in applying for a grant of probate in the ACT, including:

1. Advertising your notice of intention to apply for probate with the ACT Supreme Court;

2. Executing an affidavit in support of your application detailing the deceased’s assets and liabilities; and

3. Conducting a search of the Court Registry to see whether a previous grant has been made or any caveats have been lodged.

The details required for the application will vary depending on your circumstances and the complexity of the estate. If the Court is satisfied with the application, a grant of probate will be issued and the executor will then have authority to transfer or release assets to the executor or beneficiaries.

Letters of Administration

When there is no valid will, an application may need to be made to the ACT Supreme Court for letters of administration. This is an order of the Court that authorises an ‘administrator’ to manage the deceased person’s estate. The administrator's role is similar to that of an executor, but they are bound by intestacy laws, which dictate how an estate should be distributed when someone dies without a valid will.

The process for applying for letters of administration is similar to that of probate, however beneficiaries of the estate will need to be notified of the application. The affidavit in support of the application will also require some additional information, including details of the beneficiaries of the estate.  

Navigating these legal processes can be an overwhelming task in an already difficult time. Robinson + McGuinness are able to assist you with this process and offer fixed fees for preparing an application for probate or letters of administration. If you would like to discuss your situation and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

Author: Amy Davis

When is a grant of probate needed?

Many of us know what a Will is.  We know that it is the document that tells people who the deceased chose as their executors, trustees and the beneficiaries of their estate.  But how does an executor use the Will to transfer the deceased assets to the beneficiaries?

If the deceased held assets in their sole name, including bank accounts and real estate, an executor will need to apply for a Grant of Probate from the Supreme Court of the state or Territory in which the deceased held the majority of their assets. A Grant of Probate is a Court Order that provides for an executor to call in, deal with and distribute the assets of the deceased estate in accordance with the terms of the deceased’s Will.

Without a Grant of Probate an executor is unable to deal with the deceased’s real property (including the sale of real estate), distribute funds held in the deceased’s bank accounts or sell / transfer any shares held by the deceased.

To apply for a Grant of Probate, the executor must first publish a Notice of Intention to Apply for Probate.  If you are applying for a Grant of Probate in the ACT, this notice is usually published in the Canberra Times.  An executor can then apply for a Grant of Probate 2 weeks after the notice is published, and no later than three months after it was published.

There are a number of documents that need to be prepared on behalf of the executor when applying for a Grant of Probate, including the Grant, an Application and an Affidavit.  It is important that these documents are prepared correctly.  If they are not, it is possible that the Court will requisition the documents and ask you to amend them.

When is a Grant of Probate not required?

There are some circumstances where a Grant of Probate may not be required.  These include:

- If the deceased jointly owned real estate, bank accounts or other real property with another person.  If this is the case, the right of survivorship will apply, and the assets can be transferred to the surviving person once the death certificate has issued;

- If the deceased held relatively small amounts of money with a financial institution.  All financial institutions have different rules, however many will allow the executor to call in and distribute funds of $50,000 or less without a grant of probate; and

- If the majority of the deceased’s assets were held in superannuation.  Superannuation is not automatically an estate asset and therefore a grant of probate is often not required in order for it to be dealt with.  

Most people will not have held the role of executor before. If you have been appointed as an executor you might be feeling overwhelmed and unsure where to start.   

Robinson + McGuinness Family Law is able to assist you in applying for a Grant of Probate and subsequently administering the estate.  Robinson + McGuinness Family Law offers fixed fees to prepare and file an Application for Probate.  

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

By Peta Sutton