Succession- Topic one –
Introduction and Intestate
Succession
Contact
• justinbrown@selbornechambers.com.au
• hugh.morrison@stjames.net.au
• Please leave return number in the email
• COVID-19 arrangements
• Succession – growing practice area – types of
Succession practices
• Mandatory for LEC
Assignment
• Worth 20% of final mark
– 1500 = 1750 words
– Compulsory
– Release date
– Expected 50%
Introduction To Succession
• Topics to be covered
– Intestate Succession
– Definition and Nature of Will
– The Mental Element
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Testamentary Capacity
Knowledge and Approval
Fraud and Undue Influence
Lack of Testamentary Intention
Introduction to Succession
• Formal Requirements
– Form and manner of execution of wills
– Gifts to interested witness
– The judicial dispensing power
– Incorporation by reference
• Statutory Wills
Introduction to Succession
• The rectification power
• Revocation
– Involuntary (marriage)
– Voluntary Revocation
• Another will
• By writing
• By destruction
Introduction to Succession
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Alterations
Republication and Revival
Jurisdiction of Probate Court
Estate Pending grants of Representation
– NSWTAG
– Executor de son tort
Introduction to Succession
• Some Powers and duties of a Legal Personal
Representative
– Disposal of the body
– Commencement and termination of the authority
of a legal personal representative
– Executors Commission
– Special Pleas and Immunities
Introduction to Succession
• Administration of Solvent Estates
• Family Provision
Introduction to Succession
• Why is this area of law so important
– Growing
– Ageing population
– Asset rich
– Blended Families
– Huge area of practice
Intestacy
• Chapter 4, Succession Act (NSW) 2006
Intestacy
Definition:
“An intestate is a person who dies and either does not leave a
will or leaves a will but does not dispose effectively by will of
all or part of his or her property”.
Examples:
• Suzie dies never having made a will
• John dies having made a will which he revoked
• Samantha dies with a will that leaves a specific gift of her
house to her mother.
• Ben dies having made a will but he did not have capacity to
make a will
Must Survive
• Survivorship
– The person is born before the intestate’s death
and survives the intestate by at least 30 days
– Gestation commenced before death of deceased
and survives
– Exception if estate to the crown
• Must survive to inherit
What is a Spouse
- Married
- Domestic Partnership
• Registered relationship,
• De facto relationship,
» 2 years
» Has resulted in the birth of a child.
Interpretation Act 1987 (NSW) s21C: “A de facto relationship can exist
even if one of the persons is legally married to someone else or in a
registered relationship or interstate registered relationship with
someone else”.
Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney
[2019] NSWSC 1324: https://www.austlii.edu.au/cgibin/viewdoc/au/cases/nsw/NSWSC/2019/1324.html?context=0;quer
y=%22intestate%22;mask_path=
Intestacy
• Examples
– Suzie is married to Jim
– John is married to Elizabeth but has lived with
Maria for 10 years
– Ben is in a registered relationship with Mark but
lives with Amy
Spouse’s Legacy
– The CPI adjusted legacy is to be determined in
accordance with the following formula:
R= A (C/D)
R represents the CPI adjusted legacy.
A is $350,000.
C represents the Consumer Price Index number for the
last quarter for which such a number was published
before the date on which the intestate died
D represents the Consumer Price Index number for the
December 2005 quarter.
Example Calculation
• Date of Death – 1 May 2020
• $350,000 (116.6/83.8)= $486,993 (rounding
up nearest dollar)
Spouse Entitlements
• No issue, whole estate
• Issue, issue to spouse, whole estate
• Issue, but not issue to spouse:
• Personal Effects
• Spouse’s Legacy
• Half Residue
Spouse Examples
• Ben dies, Mary was his spouse, no children
• Ben dies, Mary and Ben had 3 children
together
• Ben dies, Mary and Ben had 3 children, Ben
has a love child
Children
• Adopted Child
– Is child of adopted parents
– Biological parent lose rights
– Rights to adopted parents not biological rights
• Surrogacy Child
– Parenting order
– Surrogate child rights under order
– No rights to biological parent
Issue’s Entitlement
• Spouse, all issue of spouse
• No spouse, Issue
• Spouse, Issue, not issue of spouse:
– All issue receive half residue
• Issue have died, leaving issue
– Issue’s issue take their share
Example of Issue’s Entitlement
• Ben dies, Mary and Ben had 3 children, Ben
has a love child
• James, his wife Mary predeceased him and
they leave four children, one child Sam has
also died leaving 3 children
Who Else
• No spouse, issue = parents
• No spouse, Issue, parent = Brothers
and Sisters
–If a brother or sister predeceased
leaving children they take their
share
Who Else
• No spouse, issue, parent, brothers or
sisters = grandparents
• No spouse, issue, parent, brothers or
sister, grandparents = Aunts and
Uncles
–If an Uncle/Aunt predeceases then
their children take their share (cousins)
May Take In Separate Capacity
• maternal aunt and paternal uncle had a child
in common. The child of the union between
the maternal aunt and the paternal uncle
would be entitled to participate in the estate
both as representative of the maternal aunt
and as representative of the paternal uncle.
Indigenous Estate
• May apply for separate determination not in
accordance with normal intestacy
• Laws, customs, traditions and practices to which
the intestate belonged.
• Unless satisfied that the terms of the order are, in
all the circumstances, just and equitable.
• Re Estate Wilson, Deceased [2017] NSWSC
1:http://www8.austlii.edu.au/cgibin/viewdoc/au/cases/nsw/NSWSC/2017/1.html
?context=1;query=%22sa2006138%20s133%22;
mask_path=
Absence of Persons
• State
• State has discretion:
(a) dependants of the intestate,
(b) any persons who have, in the Minister’s
opinion, a just or moral claim on the intestate,
(c) any organisation or person for whom the
intestate might reasonably be expected to
have made provision,
(d) the trustees for any person or
organisation mentioned above