Chris Wall

Your ex remains an "eligible person" under the NSW Succession Act, so the first step is to make sure you have a property division with the ex, and include in any Binding Financial Agreement appropriate clauses to help prevent the ex from making a claim. There are other things that can be done, depending on the amount of assets involved and the chance of that happening.

Normally anything left to someone who is under 18 at your death can be used for their benefit, for things such as education, support etc, and it would be your executor who would decide what should be paid.You should appoint someone you trust, and give them a gift instead of "commission" or payment. One option is even to appoint your ex with or without another personif you die before your son reaches 18 or 21 (and only for the period until he reaches say 21 etc) , but if you die after that, to appoint your son himself. Your executor is bound by the terms of the will and the trusts set up by it.

You canput inspecific terms of the trust which operate as binding directions to your executor, but beware of "ruling from the grave" too much...you don't know when you will die, you don't know who will survive you,and you can't assume you will own then what you do now.

Any good lawyer/estate planner will get details of your assets, super,any other financial resources (eg the life insurance), exactly who owns each thing, details of your family, and then what you want to do, and only then consider the best way to achieve your objectives in a costs effective way.

There are at least 2 issues here.

As to your affidavits, evidence has to be compiled only on things the Court will regard as relevant, and it has to be in the proper format and be "admissible".Usually if something is left out, that is done because of those things. Also, there are tactical issues to consider...it isalwaysimportant to consider what the response to evidence might be from the mother, and of course the judge. Remember court proceedings about children are not about your "rights" or those of the mother.

They are about what is best for the children.

Sometimes what is best for the children is not fair to a party. Still, the children are put ahead of fairness, as they should be. You should ask your lawyer why things are not in the evidence as you wanted, and listen carefully to the reply. Whether or not you can change what you have said on oath in an affidavit, and whether or not you should, are complex questions that should only be answered by someone who knows everything about your case. You can change lawyers if you are unhappy, but that will increase you fees to some extent

Now turning to the fees issue, you have the right to ask for an "itemized bill". Your lawyer cannot charge you for providing that.

If things that you could have been charged for have been left off the bill, generally your lawyer can issue a new bill and charge for that.If a discount has been offered, that can generally be removed by your lawyer.

With any bill, you can submit the bill to be "assessed" by a costs assessor of the Supreme Court.You can do that within 12 months of your final bill. That is fairly cheap for you to do, but you might need help from a solicitor with experience in the area of challenging costs, or a legal costs consultant.It is difficult to have an assessor make a finding that the work was of no use to you, and usually only a finding like that will lead to no payment of the costs of your lawyer.

Look at the "disclosure of costs" documents you probably received at the start, and any costs agreement that you signed, or that was sent to you, and see what they say. They are very important in terms of how your lawyer's costs are assessed.

I hope this answer has been of some help to you.

It does not depend on whether there is or is not a will.

Probate is the finding of the Supreme Court thatthe particular will is the last and operative will, and the named person is the executor of the estate.

"Letters of Administration" is the finding of the Court that the named person is to be the administrator of the estate, where there is no will (and in various other circumstances).

If there is land to be transferred or sold, you will need one or the other (unless in joint tenancy, which goes to the surviving joint owner, regardless of what the will says).

A bank, insurer or other holder of an asset of the deceased might require probate or letters of administration, if there is enough in funds or asset value, that they are not prepared to rely just on a promise to repay if a will turns up, or the administrator ends up not entitled.If there is $1000 in the bank, neither will be needed. If there is $100,000 then probate or letters of administration will be needed.

With a competent and experienced solicitor, it is pretty easy and quick these days to get probate or L of A. The fees are set by a state government scale.

Chris Wall

Yes...a wide open question, so whether you can or should is something you should get advice on.

First, you may be able to show the will was not valid. That is rarely successful, but there can be grounds like:

(a) The willmaker did not have "capacity"...that is the willmaker did not know who was in their "family", they did not know what they owned, or they did not know what the document did as a will. They might have been suffering from dementia at a level sufficiently serious to mean they could not make a valid will;

(b) The willmaker might not have signed the document...it was forged...or the willmaker might not have known what they were signing;

(c) The willmaker could be proven to have been under improper influence of someone.

Second, there might be something that works outside the will...such as a promise that the willmaker will give the farm to the person who is to work on it for minimal wages until the testator's death. There could be a trust...like where someone erects a house on the willmaker's land and pays for it, and thus may get a share in that land outside the will provisions.

The third and most usual way is where a person is an "eligible person" under the Succession Act (NSW, similar acts in other states). If within the category of being eligible, the issue is whether "proper provision" has been made for the person...only a solicitor experienced in the area can tell you your chances, and whether it is worth it in both dollar and other terms. "Eligible person" includes spouse, de facto, same sex partner, child, and even some people who have been a member of the household of the deceased and wholly or partly dependant on them.

Remember that will litigation often makes family law look kind and gentle. You need good advice, delivered on your own circumstances, by someone with experience, intelligence and commonsense.

Chris Wall

Not enough information to answer really.

Were the agreements with your husband? How reliable is the evidence of those agreements...Groucho Marx was right to say that verbal contracts are not worth the paper they are written on!

Hasyour husbanddied?

Were the agreements like a contract, where usually each of the parties get some advantage...eg "if you run thefarm for me with minimal wages, I will leave it to you in my will".

Are those who would challenge the will eligible to make a claim under the Succession Act.

As is often the case,giving an answer to an open ended question can mislead you.

Get good advice from an experienced solicitor.

Chris Wall

A simple answer....yes.

The Succession Act of NSW (and similar enactments in other states I think) countsdomestic partnersas eligible persons to challenge a will if the will did not make "proper provision" for you.

In fact even someone who was wholly or partly dependant on the deceased, and was a member of the household of the deceased can challenge.

Of course whether you will be successful with a challenge, and whether it is worth it in both $ and other terms is something that you shouldask a solicitor with experience in the area.

Chris Wall

There are all sorts of options.

The worst one is to keep ityourself...if it cannot be found after your death, but there is a copy (for example with your solicitor), there may be a presumption that the original was revoked by you.

The best option is usually to have the original kept in a safe place...with your solicitor, in a safe custody box with your bank etc and to have a copy with your personal papers, with a note on it...for example "original kept at Walker Gibbs and King ". We keep wills in our safe, free of charge, and we stamp your copy in that way. If we lost your will (we won't), then a copy could be used, as the original was not in your custody when it went missing...the presumption does not apply.

You can register your will,if you want to make sure of it, but putting a copy marked as above will usually be enough. You might tell the executorwhere the will is.

What you should ask or tell executors and beneficiaries about the will depends on a whole heap of things...an experienced solicitor will know of the various problems that can arise. Take their advice.

Take advice as part of making or amending your will.

Chris Wall

No and yes respectively!

A trust is where an entity (person or company) owns something either for a particular purpose, or fora particular person or group.

If I give you $500 in Sydney to buy a Peugeot 504 for me in Adelaide (where there is no rust), and you buy one and register it inyour name to drive it back,then you are the legal owner, and I am the beneficial or equitableowner. You are the trustee and I am the beneficiary.

Share held by a super fund are held by the trustee for the person who has the superannuation interest. That sort of trust must comply with government rules to get superannuation tax concessions.

Sometimes trusts can arise by accident. When your daughter and son-in-law build a house on your rural land, and you are going to subdivide it off, butyou die before that happens (and you will leaves your estate to your 3 children), then the executor may hold part of the land as trustee (a proportion determined by looking at the value added by the house) for the daughter and son-in-law...it actually may be a bit more complicated than that, but there will probably be a trust.

The documents that create a trust are usually a will (executor is a trustee), or a trust deed.

Any property can usually be the subject of a trust.

That will depend on what the "trust deed" says. The trust deed may be a will. Usually you would be entitled to a copy of it.

Have you asked the trustee? That is the obvious first step.

Sometimes the trustee has the power to advance money for those under the age of 18, for appropriate purposes.

Sometimes if the only thing preventing access is your age,and you are over 18, you may be entitled to require the trustee to give access anyway.

The trustee must act in the interests of the beneficiaries....as an interesting example of what a Court says about that, look at Hancock v Rhinehart (on Austlii website, Supreme Court, decision of Brereton J of about end May or early June 2015)...although it is 78 pages. I have a summary in about 4 pages if you want to email me.

Lawyers usually say no.

If we were advising with our own interests in mind, we would love people to do will kit wills....I usually have one or two messes in myfile cupboard that are due to a home made wills, and they make good money for lawyers. That might be why so many kit wills are published by $2 companies.

In truth, it is well worth doing wills properly,so you minimise the chance of having to do it again...do it once and do it well is an appropriate adage.

Your lawyer should obtain details about your assets, your superannuation and other financial resources, who is in your "family" in the broadest sense( to see if anyone could be eligible to challenge your will after your death, including whether anyone has been a member of you household and wholly or partly dependant on you, and to see what can be done to make the will challenge resistant), and then what you want to do.

You have to be careful of what Donald Rumsfeld once called "unknown unknowns"...thing you don't know about, and you are not aware that you don't know about them.

Probate is a finding by the Supreme Court, that the particular will is the last valid will of the deceased, and the applicant is officially the executor or representative of the estate.

It is neededto transfer or sell land owned by the deceased (except for joint tenancy ownership). It is neededby banks,and other institutions to get funds out or transferassets or funds if the amount is over the limit that institution sets to deal with the funds or asset less formally...if there is $10,000 in a bank account, the bank will usually take a promise to repay the amount if the executor is not entitled, but if there is $100,000 in the account, the bank will require Probate.

These days it is an application to the Court that is usually all done in writing, and the Court posts out the Probate to the solicitor acting for the applicant executor.

There is a filing fee payable to the Court, The lawyer's fees are regulated by a scale.

Often people think Probate is some sort of tax or charge...thatis wrong, and probably goes back to the days of death duties (an estate tax thathas not applied for many years). There is no death tax, and no gift tax in NSW. Capital Gains Tax usually is not payable on transfer of assets due to death, but it can be important to consult someone who knows how CGT works.

Probate is quick now...about 4 weeks from when you see a competent solicitor,if there are no problems. Getting funds incan be as little as 6 weeks. Whether an executor can and should distribute the estate early is somethingthat you should take competent advice on.

That is where a Court or tribunal orders a party (or in rare cases a lawyer) to pay the legal costsof another party.

The order can be for a fixed amount, a capped amount, "ordinary" costs, or "indemnity" costs. Typically ordinary costs would mean the party receiving the costs would get 75 to 80% of that party's own legal costs. Indemnity costs would usually mean a higher percentage.

If the parties cannot agree on an amount, a costs assessor appointed by the Supreme Court would determine the amount.

How much does a house cost? In Sydney perhaps $900,000, in Cooma maybe $250,000, in Afghanistan maybe $20,000 ( I don't really know the cost in Afghanistan).

There is no correct answer here.

The cost of a court case depends on how much time your lawyer(s) spends on the case, and the lawyer's charge rate.

The time depends on what is involved, how complex the facts are, whether the applicable law is clear, what court or tribunal it is in, how the other side behave, and numerous other factors.

You have to pay your own lawyer(s). You may get an order that the other side pay say 80% of that if you win...but the other might not have the $, or go bankrupt (eg in USA recently, someone called appropriately "50 cent").

If you lose, or even if you don't win more than an offer made by the other side, you may have to pay say 80% of their legal costs.

Your lawyer must give you an estimate of your own costs when that is possible. That will be after the lawyer knows a bit about the case. Estimates should be revised by your lawyer if there is any significant change.

Court cases should be treated like placing a bet...look at the odds of winning and losing, the $ outcome for a loss and a win (including legal costs), the emotional and time cost to you, and then make a calm and rational decision whether to place the bet.....OK, that is not what people do when they place a bet, but it is what they should do.