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Merging of the Federal Circuit Court and Family Court
11 Jul

Merging of the Federal Circuit Court and Family Court

On 30 May 2018 the Government proposed to restructure the existing structure of the Federal Court of Australia. This will have the effect of merging the Federal Circuit and Family Court of Australia (FCFCA) as of 1 January 2019. Resulting from this merge, a new Family Law Appeal Division will…

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Engagement Ring Property Rights
02 Jul

Engagement Ring Property Rights

Who Keeps the Ring after Separation? One of the big questions couples have after a relationship breaks down is what happens to the engagement ring. The issue of which party has claim to this item can be contentious, with many different opinions based on tradition, morals and conventions. Where parties…

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Relationships, Age and Criminal Law
25 Jun

Relationships, Age and Criminal Law

The international US story of a 34-year-old female teacher (Letourneau) who seduced one of her 12-year-old student (Fualaau) into a relationship raises clear questions as to how this situation would be dealt with under Australian Law. Letourneau originally pleaded guilty to two counts of felony second-degree rape of a child…

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Restorative Justice in Queensland
12 Jun

Restorative Justice in Queensland

  • Posting by James Noble Law
  • Law

Restorative justice is the principle of diverting offenders to rehabilitative services such as pre-court mediation, community conferencing between the offender/victim and engaging with specialised programs to reform criminal behaviour. The principles of restorative justice are reflected within a multitude of different legal instruments, such as the Youth Justice Act 1992…

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Contesting A Deceased Estate If you believe that a deceased friend or family member’s Will does not reflect their last wishes or are concerned with the circumstances and nature of an updated will, you may challenge the validity of the Will. This situation commonly arises where the deceased friend or family member may not have been in the right state of mind to understand what they were doing, or, if a fellow family member has manipulated the persons wishes. To challenge a will, you must have an interest in the deceased person’s estate. In other words, you may be someone who is referred to in the Will, or if the person dies without a valid will in place, someone referred to under the laws of intestacy such as a spouse or child of the deceased. Reasons to Challenge a Will The most common reasons to challenge a Will include: 1. Fraud 2. Lack of testamentary capacity of the deceased when creating the Will; 3. Manipulation, coercion or undue influence; and 4. Absence of knowledge of the contents of the Will. As Wills are usually made when the deceased person is elderly, the most prominent concern is whether the Will maker had mental capacity to understand the contents of the Will. In circumstances where the Will maker lacks this capacity, the Will may be set aside by the Court. Before an order is made, the Court will consider whether the persons had a severe mental illness (such as Alzheimer’s) or a brain disease (such as Dementia) at the time the Will was made. Another reason to challenge a Will is if the Will maker was not aware of the contents of the Will or where they were pressured by someone to leave a particular item (usually property or another valuable asset) to a particular person where they would not usually have done so. If the Court decides this has been the case, the deceased’s previous Will is used. If no previous Will exists, the laws of intestacy will apply. Although a deceased person may not have a “Will” at the time of their passing, if the person wrote a letter setting out their final wishes in an informal document with their signature, the Court has the power to declare that document valid. In certain circumstances, this informal document may even be declared valid despite an earlier formal Will.
02 May

Contesting A Deceased Estate

If you believe that a deceased friend or family member’s Will does not reflect their last wishes or are concerned with the circumstances and nature of an updated will, you may challenge the validity of the Will. This situation commonly arises where the deceased friend or family member may not…

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Who Gets Animals in Divorce Proceedings
29 Apr

Who Gets Animals in Divorce Proceedings?

What Happens to Pets and Animals During Divorce Proceedings? As animals have become an integral part of modern relationships, it is important to understand what happens to your pets during the separation and divorce proceedings. Given that one or both parties may have special connections to their pets, the decision…

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Mental Health Conditions and Parenting Arrangements
23 Apr

Mental Health Conditions and Parenting Arrangements

How Do Mental Health Conditions Affect Family Law Proceedings? If you have been diagnosed with a mental health condition, this can impact both child welfare/parenting arrangements in addition to property disputes. However, a mental health condition does affect or have relevance to divorce proceedings (provided there is no children of…

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Meaningful Relationship with Both Parents
10 Apr

Retaining A Meaningful Relationship with Both Parents

Last year a Court dispute between Brad Pitt and Angelina Jolie resulted with the Superior Court of Los Angeles County imposing an order for the five children to spend more time with their father. When providing reasons for the judgment, the Court provided “it is critical that each child have…

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Genetic Donors and Family Law
03 Apr

Sperm, Genetic Donors and Family Law

Sperm Donors and Family Law Although sperm donations have historically been subject to anonymity in Australia, recent legislative reform and case law suggest a definitive movement towards inclusion within Family Law and Parental Responsibility. In all states and territories of Australia, donating sperm anonymously is now banned through legislation or…

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Family Reports and Expert Evidence in Proceedings
28 Mar

The Family Report and Expert Evidence in Proceedings

Expert evidence including family reports provide the Court with material from an independent viewpoint, which both assesses and highlights particular issues with each unique case. The most common form of expert evidence in family law proceedings is family reports, which are undertaken by psychologists to determine the children’s views, the…

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Recent Posts

Merging of the Federal Circuit Court and Family Court

Merging of the Federal Circuit Court and Family Court

Engagement Ring Property Rights

Engagement Ring Property Rights

Relationships, Age and Criminal Law

Relationships, Age and Criminal Law

Restorative Justice in Queensland

Restorative Justice in Queensland

Contesting A Deceased Estate If you believe that a deceased friend or family member’s Will does not reflect their last wishes or are concerned with the circumstances and nature of an updated will, you may challenge the validity of the Will. This situation commonly arises where the deceased friend or family member may not have been in the right state of mind to understand what they were doing, or, if a fellow family member has manipulated the persons wishes. To challenge a will, you must have an interest in the deceased person’s estate. In other words, you may be someone who is referred to in the Will, or if the person dies without a valid will in place, someone referred to under the laws of intestacy such as a spouse or child of the deceased. Reasons to Challenge a Will The most common reasons to challenge a Will include: 1. Fraud 2. Lack of testamentary capacity of the deceased when creating the Will; 3. Manipulation, coercion or undue influence; and 4. Absence of knowledge of the contents of the Will. As Wills are usually made when the deceased person is elderly, the most prominent concern is whether the Will maker had mental capacity to understand the contents of the Will. In circumstances where the Will maker lacks this capacity, the Will may be set aside by the Court. Before an order is made, the Court will consider whether the persons had a severe mental illness (such as Alzheimer’s) or a brain disease (such as Dementia) at the time the Will was made. Another reason to challenge a Will is if the Will maker was not aware of the contents of the Will or where they were pressured by someone to leave a particular item (usually property or another valuable asset) to a particular person where they would not usually have done so. If the Court decides this has been the case, the deceased’s previous Will is used. If no previous Will exists, the laws of intestacy will apply. Although a deceased person may not have a “Will” at the time of their passing, if the person wrote a letter setting out their final wishes in an informal document with their signature, the Court has the power to declare that document valid. In certain circumstances, this informal document may even be declared valid despite an earlier formal Will.

Contesting A Deceased Estate

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