Topic 1: Intestacy
Intestacy
• Rules of intestacy will apply where:
• There is no will;
• The will is invalid;
• The will is partially invalid.
• An intestate is a person who dies without a will or without a valid will that effectively
disposes of his/her estate: Succession Act 2006 (NSW), Section 102.
Survivorship Requirement
• A person may not participate in distributing an intestate estate unless the person survives the intestate:
SA, Section 108. A person will not be regarded as having survived an intestate unless he/she survives the
intestate for at least 30 days: SA, Section 107.
Spouses
• A spouse of an intestate is a person married to the intestate immediately
before the intestate’s death, or who was in a domestic partnership with the intestate
immediately before death: SA, Section 104.
• A domestic partnership refers to a registered relationship or de facto relationship that
has either existed 2 years, or has resulted in thebirth of a child: SA, Section 105.
• If an intestate leaves a spouse but no issue, the spouse is entitled to the whole of the
estate: SA, Section 111.
• If an intestate leaves a spouse and issue, and the issue are all issue of the spouse, the
spouse is entitled to the whole of the estate: SA, Section 112.
• If an intestate leaves a spouse and any issue who are not issue of the spouse, the
spouse is entitled to:
o the intestate’s personal effects, and
o a statutory legacy, and
o one-half of the remainder (if any) of the intestate estate: SA, Section 113.
• If an intestate leaves more than one spouse, but no issue, the spouses are entitled to
the whole of the intestate estate in shares: SA, Section 122.
• If an intestate leaves more than one spouse and issue all issue of one or more
of the surviving spouses, the spouses are entitled to the whole of the estate in shares: SA, Section 123.
• If an intestate leaves more than one spouse and any issue who are not issue of the
surviving spouse:
o the spouses may share the intestate’s personal effects; and each spouse may share the statutory
legacy that would be payable if the intestate had left only one spouse; and the spouses may
share one-half of the remainder (if any) of the intestate estate: SA, Section 124.
• Spouses are to share the estate under a written agreement (SA, Section
125(1)(a)), or under a distribution order (SA, Section 125(1)(b)), or if the conditions in SA, Section 125(2)
are satisfied, the spouses are to share the estate in equal shares.
Children
• If an intestate leaves no spouse, but leaves issue, the intestate’s children are entitled to
the whole of the estate: SA, Section 127(1).
• If the intestate leaves a spouse or spouses and issue not also issue of a surviving spouse, and part of the
estate remains after satisfying the spouse’s entitlement(s), the intestate’s children may have the
remaining part of the intestate’s estate: SA, Section 127(2).
• If no child predeceased the intestate leaving issue who survived the intestate, then:
o If there is only one surviving child – the entitlement vests in the child; or
o If there are two or more surviving children – the entitlement vests in them in equal shares: SA,
Section 127(3).
Parents
• The parents of the intestate are entitled to the whole of the intestate estate if the
intestate leaves no spouse and no issue: SA, Section 128(1).
• If both parents survive the intestate, the entitlement vests in them in equal shares: SA, Section 128(2).
Brothers and Sisters
• The brothers and sisters of the intestate are entitled to the whole of the intestate estate
if the intestate leaves no spouse, issue, or parents: SA, Section 129(1).
• If more than one brother and/or sister survives the intestate, the entitlement will vest
in them in equal shares: SA, Section 128(2).
Grandparents
• The grandparents of the intestate are entitled to the whole of the intestate estate if the
intestate leaves no spouse, issue, parents, brothers or sisters, or issue of a deceased
brother or sister: SA, Section 130(1).
• If both grandparents survive the intestate, the entitlement will vest in them in equal shares
Partial Intestacy
• Where the deceased wrote a valid will but failed to dispose of all their assets
• The typical approach in partial intestacy cases is to distribute any assets covered by the will as instructed,
and the remaining assets will fall into residue and are subject to the normal intestacy laws – especially
where the will is silent on residue
• E.g. John dies leaving valid will. Has a Suzuki that isn’t on the will but has a clause in the will "I leave
residue to my daughter" – if he didn't have the clause, the Suzuki would be distributed under the laws of
intestacy
• Can also occur where a disposition by will fails (i.e. failed gift)
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Topic 3: Formal requirements of a Will
General
6 How should a will be executed?
(1) A will is not valid unless:
(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the
testator, and
(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the
same time, and
(c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the
presence of each other).
s7 A will is valid even if one or more of the witnesses to the will did not know the document they were attesting
and signing was a will
Who cannot witness?
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s9 A person who is blind cannot attest that a testator has signed a will
s10 Beneficial disposition to interested witness is void: s10(2). Not void if at least 2 other people who
attested will were not interested witnesses: s10(3)(a), all the persons who benefit from the beneficial
disposition being avoided, consent in writing for the beneficial disposition to the interested witness:
s10(3)(b), the Court is satisfied that the testator knew and approved of the disposition and made the
disposition freely and voluntarily
Only the persons who can benefit from avoidance can object – and unaffected beneficiary cannot
In the Goods of Adams
A will can be in ink or pencil – however if both are used there a risk that pencil may be interpreted as not intending
to form part of will. The pencil writing was written over and in some places rubbed out – concluded tat the
intention of the deceased was the ink writing was to supersede pencil
An initial or part of signature may be sufficient if done with the intention of giving attention to the will: Re Male
1934
The dispensing power – s8 (informal wills)
s8 Court's Dispensing Power
A S8 - When may the Court dispense with the requirements for execution, alteration or
revocation of wills?
(1) This section applies to a document, or part of a document, that:
(a) purports to state the testamentary intentions of a deceased person, and
(b) has not been executed in accordance with this Part.
(2) The document, or part of the document, forms:
(a) the deceased person’s will-if the Court is satisfied that the person intended it to form
his or her will, or
(b) an alteration to the deceased person’s will-if the Court is satisfied that the person
intended it to form an alteration to his or her will, or
(c) a full or partial revocation of the deceased person’s will-if the Court is satisfied that
the person intended it to be a full or partial revocation of his or her will.
(3) In making a decision under subsection (2), the Court may, in addition to the document or
part, have regard to:
(a) any evidence relating to the manner in which the document or part was executed, and
(b) any evidence of the testamentary intentions of the deceased person, including
evidence of statements made by the deceased person.
In the Estate of Masters:
The requirements of s8 are –
(a) there must be a document
(b) which purports to state the testamentary intentions of the deceased
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(c) which the deceased intended to form his will
Re Application of Brown: Estate of Springfield: In this case the subject document was not seen, read, written or in
some way adopted or authenticated by the deceased – not able to satisfy that the document was intended by the
deceased to bill his will. Notes of deceased intentions cannot be admitted to probate. The document was annexed
to an affidavit and contained a list of beneficiaries and amounts they would be awarded however did not have a
signature and was not in the deceased's handwriting. The deceased also did not make a will.
Estate of Wai Fun Chan
DVD can be a document – need transcript of contents translated to English
DVD is a document for the purposes of s21C interpretation act – it is a "record of information"
Video added as codicil to will
Estate of Laura Angius; Angius Angius[2013]NSWSC 1895,
three pages of handwritten notes in a notebook constituted an informal will. The notes were written in Italian.
Letters of Administration included a copy of the notes and an English translation. When called upon to construe
the will, the court observed that the translation was an aid in understanding the will but it was open to the court
to ‘go behind the translation’ and receive expert evidence as to the meaning of the Italian words.
Mutual Wills
Where two persons make wills pursuant to an agreement as to the disposal of their property
The wills can be combined to be one joint mutual will, or two separate wills
The agreement must be proved – the mere fact that two persons make wills simultaneously with similar provisions
is not enough: Re Oldham
Neither party can revoke without the consent of the other – they can be revoked by both testators acting jointly
Mirror Wills
Two separate, identical wills
They are made in identical terms
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Topic 4: Testamentary capacity
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A will made by a minor is generally not valid:s5(1)
The trifecta – undue influence, lack of knowledge and approval and lack of testamentary capacity can
result in a will being set aside
Note for each you need to go through and establish "Standing", "Onus", "Legal Test"
Standing – who can challenge
Onus – who bears the legal onus (sometimes they can shift)
Legal Test – what is the legal test
Worked example
Will A – 2017 – Beneficiaries: Salvation Army
Will B – 1967 – Beneficiaries: Homeless Kids
Intestacy – (would go to wife)
Testamentary Capacity
Standing
Using above example – who has standing to challenge the validity of Will A – the beneficiaries of Will B do
The wife has standing on intestacy to challenge the validity of Will A and Will B (can't just challenge one)
Onus
You have a prima facie valid will. There is a presumption of TC.
The person seeking to challenge the validity of the will has the onus to raise doubt about TC
So if the beneficiaries of Will B raise a doubt – the onus SHIFTS to the salvation army – those seeking to
propound the valid will
Legal test – Banks v Goodfellow – 4 1/2 limbs
Banks v Goodfellow
o There is a presumption of sound mind
o The testator must be able to:
1. understand the nature of a will and its effect
2. understand the extent of their assets of which he is disposing;
3. comprehend and appreciate the claims to his bounty;
4. be able to weigh up
4.5 thus: (no delusion will affect the above 4)
i. no disorder of the mind shall poison his affectations or prevent his sense of right
ii. no insane delusion shall influence his will in disposing of his property.
o The testator must possess testamentary capacity at the time they execute a will.
o Partial unsoundness not operating on the mind of a testator in regard to testamentary
disposition is not sufficient to render a person incapable to disposing of their property by will
(The testator did suffer from an insane delusion but that delusion did not influence his capacity
to make a disposition of his property – he had a delusion a butcher (that was dead) was trying to
kill him and went to mental hospitals in the past)
o The butcher is not someone you should consider should receive your bounty – the delusion did
not affect the above 4 limbs – i.e. if I believe my wife was going to kill me that would affect the
above 4
Onus is on person trying to get probate to prove testator did have TC: Timbury v Coffey
Medical evidence is not conclusive, nor does it necessarily have primacy over nonmedical evidence –
Zorbas v Sidiropoulous
Bull v Fulton
o Unsoundness of mind can be evidenced through delusions.
o Testator had delusion that nephews had forged her signature for a number of business
transactions
o The will was invalid as the delusion had a direct bearing on the provisions in the will.
o The propounder failed to discharge the onus – that is to show that the delusion did not affect the
provisions
o Williams J defined delusion as "…a fixed and incorrigible false belief which the victim could not
be reasoned out of"
o However, the fact the testator has delusions is not fatal to the will if the delusion did not affect
the dispositions
In the absence of sound mind, memory and understanding the whole will is void even if the delusion
relates only to a particular gift or restriction on a gift: Woodhead v Perpetual Trustee Co Ltd
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Kerr v Badran: In determining whether a testator is able to understand the extent of their property they
have a right to dispose of, it is not necessary for a person to have a precise and detailed knowledge of
their assets in all circumstances
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Knowledge and approval
Standing
Using above example – who has standing to challenge the validity of Will A – the beneficiaries of Will B do
The wife has standing on intestacy to challenge the validity of Will A and Will B (can't just challenge one)
Onus
There is a presumption of knowledge and approval
The person seeking to challenge the validity of the will has the onus to raise doubt about knowledge and
approval (usually the challenger will raise suspicious circumstances)
So if the beneficiaries of Will B raise a doubt + SC – the onus SHIFTS to the salvation army – those seeking
to propound the valid will
Legal Test – that the testator did in fact know and approve of the will
Mekhail v Hana
A grandson called a solicitor to make will for grandmother. The will should say everything to go to my
mother (grandmothers daughter), and in the event that she dies, everything is to go to me. We can only
come once to sign the will. Solicitor asked for email to be sent with details.
All 3 went into the office (clearly SC as person giving instructions was a beneficiary and beneficiary was
present when will was done)
It turned out the 'grandson' and the 'mother' were not actually the grandson and daughter of the testator
Held yes there was SC. The fact that it was done by solicitor is taking into account – solicitor caught
making up file notes. Held will not valid
Astridge v Pepper: the testator must have full knowledge and approval of the will in order for it to be
valid.
o The person drafting the will (e.g. solicitor) should read over the will to the testator before they
sign it. The testator needs to confirm they know of the contents of the will and they approve of
its connects.
o Rebuttable presumption that knowledge and approval is established by evidence that the will
was read to the testator – in this case the testator was not capable of reading and understanding
he will but signified approval to the solicitor orally after the will was read to her
Suspicious circumstances – where there may have been coercion – where a beneficiary gives instructions
to a solicitor – where a beneficiary is involved in the procurement of a will – onus is on person seeking to
challenge validity of will to establish there were suspicious circumstances The presumption can be
displaced by an circumstances which raise suspicion or doubt as to whether the will expresses the mind
of the testator: Tobin v Ezekiel
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Fraud and undue influence
Standing
Is the same as the above but it's also about onus
Fraud and undue influence are very serious allegations
Briginshaw standard – When the gravity of the matters alleged is very serious. The court must be satisfied
that the matter actually did take place. the onus is on the party alleging the fraud, they have to prove
positively that the fraud or undue influence did occur. The court needs to have evidence before it to be
satisfied the matter did actually occur.
Onus
The onus is on the party alleging the fraud
The onus shifts to person seeking to propound the will, to demonstrate the righteousness of the
transaction: Fulton v Andrew
Undue influence in probate – no presumptions
The onus is on the party alleging the undue influence – actual coercion needs to be established (which
will be very hard to do unless the party is a direct witness to the coercion – if they are not they will never
be able to satisfy the Briginshaw standard)
Undue influence is force amounting to coercion that destroys the free agency of the testator
Undue influence goes beyond mere persuasion: Hall v Hall – conduct that overcomes the testator's free
will as opposed to convincing the testator of something
Wingrove v Wingrove
o The essence of undue influence is coercion of the will
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The testator is forced to do something they do not want to do
The coercion must be proved to actually have happened. The fact that a person was in a position
to coerce the testator is not enough.
Hall v Hall
o Plaintiff was wife of testator and sought to propound validity of late husbands will
o Defendant adduced evidence of violence and threats from the plaintiff and that the testator did
not express his true testamentary intentions out of fear and for peace and quiet
o Held that pressure if exerted to an extent where it overpowers the volition of the testator is
undue influence and a valid will cannot be made out of such circumstances
o Do not need to have violence or force for there to be undue influence
o Held undue influence and Court pronounced against the will
o "A testator may be led but not driven"
Petrovski v Nasev
o Testator's son applied consistent and repetitive pressure upon the deceased to an extent that
was more than trying to appeal to her sentiment and affection
o The pressure resulted in the deceased preparing a will in order for the pressure to cease and for
a quiet life – her free judgement and wishes were overborne
o There were no threats but consistent pressure
o Also suspicious circumstances re knowledge and approval – the son provided instructions re part
of will and provided those instructions to a solicitor who was not the usual solicitor of the
testator
Hindson v Weatherill: Solicitor drafted will where he was trustee of next of kin and heir – benefited from
the will
Dickman v Holley: Mrs Simpson age 96, made a will leaving the whole of her estate to Salvation Army. The
lawyer who drafted it was the solicitor for Salvos and she also appointed someone from Salvos as her
executor. Set aside for trifecta.
Lack of Testamentary Intention – absence of "This is my last will and testament" can have an effect on
whether a document actually has testamentary intention
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Topic 5 Rectification
s8 Court's Dispensing Power
A S8 - When may the Court dispense with the requirements for execution, alteration or
revocation of wills?
(1) This section applies to a document, or part of a document, that:
(a) purports to state the testamentary intentions of a deceased person, and
(b) has not been executed in accordance with this Part.
(2) The document, or part of the document, forms:
(a) the deceased person’s will-if the Court is satisfied that the person intended it to form
his or her will, or
(b) an alteration to the deceased person’s will-if the Court is satisfied that the person
intended it to form an alteration to his or her will, or
(c) a full or partial revocation of the deceased person’s will-if the Court is satisfied that
the person intended it to be a full or partial revocation of his or her will.
(3) In making a decision under subsection (2), the Court may, in addition to the document or
part, have regard to:
(a) any evidence relating to the manner in which the document or part was executed, and
(b) any evidence of the testamentary intentions of the deceased person, including
evidence of statements made by the deceased person.
• Can dispense with the fact that there are no witnesses
• that it was not signed
• Unsent text messages admitted to probate, emails
• The court is satisfied that it intended to from part of the will
• Suicide notes – more complex is planning documents – what you are planning to do
s27 Succession Act – Court may rectify a will
(1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied
the will does not carry out the testator's intentions because:
(a) a clerical error was made, or
(b) the will does not give effect to the testator's instructions.
(2) A person who wishes to make an application for an order under this section must apply to the Court within 12
months after the date of the death of the testator.
(3) However, the Court may, at any time, extend the period of time for making an application specified in
subsection (2) if:
(a) the Court considers it necessary, and
(b) the final distribution of the estate has not been made.
(If there is a spelling or clerical mistake in a clause of the will, the Court is likely to grant an order for rectification,
brought by an application under s27)
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s27 requires a causal connection between the clerical error and the failure of the will to give effect to the
testator's intention due to the word 'because'
First type of rectification – clerical mistake
Mortensen v State of NSW:
o Rectification cannot be used to correct unforeseen circumstances that occur since the will was
made.
o Rectification is available for mistakes, not for lack of vision or perception or knowledge. It is
intended to be for mistakes in expressing the testator's intentions.
o In this case although the intentions of the testatrix were that no monies should go to the
government, she did not indicated an alternative option she would wish to pursue if her gift
failed – accordingly the will could not be rectified (a failure of one of her gifts resulted in partial
intestacy)
Re Gillespie: Rectification is not confined to mistakes only as to the wording of the will. In this case there
were mirror wills of a husband and wife, and each of them signed the wrong will. Grant for rectification
was made
Second type of rectification – Will does not give effect to the testator's instructions
Vescio v Bannister:
o Testatrix had 2 children Mrs Vescio and Mr Tate
o First will executed in 2007 left a unit to Mrs Vescio
o In 2009 she sold the property and acquired a retirement unit
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In May 2009 Mr Hamer (solicitor) created a new will providing for the new transfer
The testatrix fell ill and died before the new will could be executed, Mrs Vescio made an
application under s27
‘my entire interest and estate in my home known as 11 Grevillea Street, Collaroy Plateau
together with all the furniture and contents therein’. Sandra sought to have this rectified to ‘my
entire interest and estate in my home at the time of my death including any accommodation
bond refund from a retirement unit’.
Court determined that in determining whether an order pursuant to a s27 application will be
made, the Court will consider whether there is a discrepancy between the testator's
instructions and the effect of an executed will.
A permissible order must result in a will that is representative of the testator's intentions, so the
Court must determine these intentions
Clear evidence that the testatrix gave instructions is required
In this case not a typographical error – but was it not giving effect to the testator's instructions.
Barret J – the reference to 'instructions' means that s27(1)(b) cannot apply to a will 'composed
of and written by the testator personally'
In this case there was evidence about the testatrix's conversations with the solicitor from
solicitor's file – there were some conflicting pieces of info in there however – case reiterated the
importance of keeping clear notes of instructions as they may be called upon to assist the Court
in explaining aspects of a will and are admissible in a rectification matter
Estate of Terrence Osborne
o s27 provides the court 'may' rectify a will – it is not mandatory
o There are two condition precedents to the court's exercise of the power in s27 – clerical
error or will does not give effect to will-makers instructions
o In order to determine these factors, court must make findings about the 'intentions' of
the testator
o The intention must be examined as at the date of the will not as at the date of death:
Vescio v Bannister, and Mortenson v NSW
o The standard of proof is on the balance of probabilities but clear and convincing
evidence is required: Re Estate of Max Frederick Dippert
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Topic 6 Revocation
s8 Court's Dispensing Power
A S8 - When may the Court dispense with the requirements for execution, alteration or
revocation of wills?
(1) This section applies to a document, or part of a document, that:
(a) purports to state the testamentary intentions of a deceased person, and
(b) has not been executed in accordance with this Part.
(2) The document, or part of the document, forms:
(a) the deceased person’s will-if the Court is satisfied that the person intended it to form
his or her will, or
(b) an alteration to the deceased person’s will-if the Court is satisfied that the person
intended it to form an alteration to his or her will, or
(c) a full or partial revocation of the deceased person’s will-if the Court is satisfied that
the person intended it to be a full or partial revocation of his or her will.
(3) In making a decision under subsection (2), the Court may, in addition to the document or
part, have regard to:
(a) any evidence relating to the manner in which the document or part was executed, and
(b) any evidence of the testamentary intentions of the deceased person, including
evidence of statements made by the deceased person.
In most cases a will is revoked by inclusion of a revocation clause "I hereby revoke all prior wills made by me"
SA s11 When and how can a will be revoked? (s17 Former Wills Act)
(1) The whole or any part of a will may be revoked but only:
a) if the revocation (whether by a will or other means) is authorised by an order under
section 16 (will of minor) or 18 (will of person who has lost TC), or
b) by the operation of section 12 or 13, or
c) by a later will, or
d) by some writing declaring an intention to revoke it, executed in the manner in which a
will is required to be executed by this Act, or
e) by the testator, or by some person in his or her presence and by his or her direction,
burning, tearing or otherwise destroying the will with the intention of revoking it, or
f) by the testator, or by some person in his or her presence and at his or her direction,
writing on the will or dealing with the will in such a manner that the Court is satisfied
from the state of the will that the testator intended to revoke it.
(2) No will or part of a will may be revoked by any presumption of an intention on the ground
of an alteration in circumstances.
Marriage and Divorce – Involuntary Revocation
s12 Effect of Marriage on Will
(1)A will is revoked by the marriage of a testator
(2)(a) a disposition (legacy, gift) to a person to whom the testator is married at the time of his her death is not
revoked
(4) A will made in contemplation of marriage is not revoked by the solemnisation of marriage
Re Estate Grant, deceased [2018] NSWSC 1031
o A marriage which is in contemplation refers to a marriage, which at the time the will is made, is a
future prospect
o White J – Hoobin v Hoobin: There must be a more definite estate of mind than a mere
consciousness of the possibility of a particular marriage
If I make a will saying, I leave to Sarah my car and later I marry Sarah. Sarah gets my car but any other component
of my will is revoked.
Except if made in contemplation of marriage
If I say I leave to my wife my phone. Then it turns out I was not yet married – in those circumstances, the will was
probably made in contemplation
Harder if, I leave to my fiancé – because yes contemplating marriage but also contemplating the fact that you are
not yet married
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The best way to avoid this is to say, this will is made in contemplation of my marriage to X.
However, If I say "Subject to me marrying X, she gets my house" If I don't get married, X gets nothing as its
conditional gift upon me getting married.
If I say "This will is made in contemplation of my marriage to X" But then I die and I did not marry X – the will is still
valid
s13 What is the effect of divorce or an annulment on a will?
(1) The divorce of a testator or annulment of his or her marriage revokes:
(a) a beneficial disposition to the testator's former spouse made by a will in existence at the time of
the divorce or annulment, and
(b) an appointment of the testator's former spouse as an executor, trustee, advisory trustee or guardian made by
the will, and
(c) a grant made by the will of a power of appointment exercisable by, or in favour of, the testator's
former spouse.
(2) Subsection (1) does not apply if a contrary intention appears in the will.
By another will s11(1)(c) -Where no revocation clause, revocation can be implied by a later will
o Revocation will occur when a later will contains a revocation clause, this is express revocation. For extra
protection a revocation clause should be inserted in all wills so as to remove any doubts.
o However revocation can sometimes also be implied by terms in later wills that can indicated a will is
either revoked wholly or partially.
o In the Goods of Oswald: A revocation clause must be accompanied by an intention to revoke – therefore,
A revocation clause inserted without the knowledge and approval of the testator will not be admitted –
testator gave directions that a testamentary paper should be prepared. The paper contained a revocation
of all previous wills however it was not read over by the testator and she was unaware it contained a
revocation clause, which was inserted by mistake
o In re Tait: testator gave solicitor instructions about alterations, new will was typed up and it left out two
clauses which the testator was unaware of – the revocation did not revoke the two earlier clauses,
despite new will being made
By writing or declaring an intention to revoke – s11(1)(d)
By destruction – s11(1)(e)
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Cheese v Lovejoy – insufficient act of revocation
o Any act of destruction must be accompanied with an intention to revoke – therefore a symbolic
destruction or abandonment of a document is not enough
o FACTS:
A testator drew his pen through the lines of various parts of his will, wrote on the back of
it “this is revoked,” and threw it among a heap of waste papers in his sitting-room.
A servant/housekeeper took it up and put it on a table in the kitchen.
It remained lying about in the kitchen till the testator’s death seven or eight years afterwards, and
was then found uninjured.
o HELD:
The will was not revoked, the words “or otherwise destroyed” not being satisfied, as
whatever the testator intended, the will hand not actually been injured.
Thus there was no evidence of revocation.
• There must be the act as well as the intention to which there was no evidence of intention
in this case
“all the destroying in the world without intention will not revoke a will, nor all the
o intention in the world without destroying: there must be both”
• Appeal dismissed
Doe v Perkes (1820) – The Act of destruction must be complete. In this case the testator began to tear up
his will as he was angry at a beneficiary – he was stopped by the time it had been torn into 4 pieces. The
testator fitted the pieces back together. Court held not revoked as the testator had not done all he
intended by way of destruction
In the will of Boyd: A missing will is presumed revoked, but this is a rebuttable presumption
Re Everest: Will had a portion cut away – the testator destroyed that part of the will
By writing/dealing – s11(1)(f)
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Dependent Relative Revocation
• Allows a court to revive a revoked will
• Where a testator revokes his will with the intention of making a new one but for some reasons fails, the
original one will remain valid OR
• Where a testator revokes the will under a mistaken assumption i.e. destroys previous will on the
assumption that the subsequent will is valid, the Court will then apply the doctrine to reinstate the prior
will by treating the revocation as CONDITIONAL upon the validity of the 2nd will
• Lippe v Hedderwick: A mistaken belief that a later will has already revoked an earlier will, will not be
sufficient to revoke the earlier one
• Re Lindrea: The testator made a will and a year later made another, revoking the first. He then destroyed
the second will, thinking it would have the effect of reviving the first will. The court found the revocation
of the second will was invalid as it was conditional upon the first will being revived (and it was not)
• Estate of Southerden: A testator revoked his will under the mistaken belief that the intestacy rules would
apply and his wife would therefore inherit his whole estate. That was not the effect of the rules and it was
held that his revocation was conditional upon that being effect of the rules (his wife getting everything)
and the revocation was therefore invalid.
• Re Jones: In order for the Court to determine whether the doctrine of DRR will apply the court will
consider:
• Whether the testator destroyed the will with the intention to revoke it? If yes – was the
revocation conditional or absolute. If it was conditional – what was the condition and has the
condition been satisfied?
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Topic 7: Alterations
s8 Court's Dispensing Power
A S8 - When may the Court dispense with the requirements for execution, alteration or
revocation of wills?
(1) This section applies to a document, or part of a document, that:
(a) purports to state the testamentary intentions of a deceased person, and
(b) has not been executed in accordance with this Part.
(2) The document, or part of the document, forms:
(a) the deceased person’s will-if the Court is satisfied that the person intended it to form
his or her will, or
(b) an alteration to the deceased person’s will-if the Court is satisfied that the person
intended it to form an alteration to his or her will, or
(c) a full or partial revocation of the deceased person’s will-if the Court is satisfied that
the person intended it to be a full or partial revocation of his or her will.
(3) In making a decision under subsection (2), the Court may, in addition to the document or
part, have regard to:
(a) any evidence relating to the manner in which the document or part was executed, and
(b) any evidence of the testamentary intentions of the deceased person, including
evidence of statements made by the deceased person.
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s14 How a will may be altered – only applies where the alteration was made after the execution of the
will
Goods of Sykes: The time of alteration is presumed to be made after execution of a will, but this is
rebuttable
Williams v Ashton: The onus lies on those trying to assert the alteration was made before execution to
prove that fact
In the Goods of Hall – deliberative alterations to a will (i.e. with pencil) will not be admitted to probate
because they do not carry the necessary testamentary intention – they are simply thoughts, discussions
and considerations
Ffinch v Coombe: For their to be sufficient alteration the words must no longer be apparent. Even if they
require use of a magnifying glass – may be still be apparent.
Topic 8 and 9: Republication and Revival
Codicil – an additional or supplementary document that explains, modifies or revokes a will wholly or partially
Republication
Republication is:
1. the re-execution of an unrevoked will, or
2. the execution of a codicil to an unrevoked will which either expressly or impliedly
states that the will is confirmed from the date of execution of the codicil – Re Smith;
The words ‘this is a codicil to my will dated …’ are sufficient.
There must be an intention to republish so that at the time of republication the will or codicil
must evince an intention that the will should operate from the republished date: Re Smith;
Revival
• Revival is the reactivation of a revoked testamentary instrument.
• Succession Act 2006 (NSW) s 15(1) — a will is only arrived by: re-execution, or a codicil duly executed and
showing an intention to revive.
• A destroyed will cannot be revived as it is no longer in writing – Rodgers v Goodenough
• Goods of Steele;— an intention to revive can be shown by:
o Express words referring to the revoked will,
o A disposition of property inconsistent with any other intention, or
o Some other expression that is sufficiently certain.
o Mere statement in a codicil that ‘I confirm my last will’ is not enough, as it
o refers only to an existing will rather than a revoked will.
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o “A codicil may, by referring in adequate terms to a revoked will, revive that will if it
o can be in existence, but the codicil must “show and intention to revive the same.” In
o order to satisfy these words the intention must appear on the face of codicil, either
o by express words referring to a will as revoked and importing an intention to revive
o the same, or by a disposition of the testator’s property inconsistent with any other
o intention, or by some other expression conveying to the mind of the Court with
o reasonable certainty the existence of the intention.”
Extrinsic evidence is admissible to determine which will a codicil purports to revive, but not
to show whether the codicil evinces a sufficient intention to revive – Estate of Brian
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Topic 9: Gifts by Will
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Entitlement of the estate is so much of the estate that remains after funeral and administration expenses,
debts and liabilities are properly paid out of the estate: s103 SA
Funeral expenses and hospital bills can be paid out from undisposed of assets under will
The general rule is that the object of the gift (recipient) must survive the testator. A gift will lapse if the
beneficiary does not survive the testator by 30 days.
If a lapsed gift is not residuary, then it falls into residue and the residuary beneficiary/ies takes the lapsed
gift.
If the lapsed gift is residuary then, subject to the provisions of s42 of the Succession Act, it will be
distributed in accordance with the intestacy rules.
Gifts are legacies, or devices (gifts of land) or bequests (gifts of personal property)
Gift of jewellery – in exam sometimes there is a q re characterization – includes watches
Types of Gifts
1. Specific gifts – subject to ademption
This is a gift of a specific chattel or thing, or a group of thing forming part of the testator's estate, can be
money
A specific legacy is a gift of a particular part of the testator’s property: Walford v Walford
The description needs to be sufficient: McBride v Hudson
E.g. "Holder Car, registration XYZ"
It is necessary to be specific as to exact model, licence, colour location etc
Entitled to income earned – e.g. income earned on a rental property of a specifically gifted house
2. General gifts – subject to Abatement
This is something provided for out of the testator's general estate, e.g. a gift of $1000 to Mary, 100 shares
in BHP to Joe
A gift expressed entirely without reference to property actually owned by the testator at the time of
making the will is usually construed as a general legacy: Re Plowright [1971]
3. Demonstrative gifts
Both specific and general
E.g. $10 from CBA Account to Bob
Specific – If CBA account has $10
General – If CBA account has $5
Demonstrative – If Court can take $5 from the estate to create the $10
But if "$10 from CBA account only" – Specific and Non-demonstrative – i.e. Bob will only get $5 – Where
the legacy is demonstrative, if the fund is insufficient to pay the legacy, the balance is payable from
general estate
4. Residuary gift
Gift of residue – Residue is what is left when all the funeral, testamentary and administration expenses,
the deceased's debts have been paid and all other legacies have been paid – what is left after all gifts and
liabilities have been satisfied
If a residuary gift fails it will pass on intestacy
Includes income but not interest
5. Legacy – cash gift
A gift of money, which can be general, specific or demonstrative
General legacy (payable from general estate, not from any particular fund or place)– I give a legacy of
$1000 to Joe. s84A Interest is payable – general legacies accrue interest to the extent that they are not
paid within 1 year
General legacies do not carry income – If I leave 100 dollars in an account to Joe and then the account
grows to 150 – Joe is not entitled to the 50 (income), only to interest
Specific legacies (payable from particular place or fund) – I give Joe all the money contained in my shoe
box in my study or I give joe all my money in my account 123
• Main 3 are:
General legacies
specific gifts
residuary dispositions
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Failure of gifts
Ademption and Satisfaction
• Gift will fail if deemed to be satisfied or if gift has adeem
• Satisfaction – I give 102 dollars to Joe but I already gave Joe 102 before I died
• The doctrine of ademption applies where there is a specific gift fails if the subject matter of the gift no
longer forms part of the testator's property at death: Re Clifford - thereby causing the gift to be
inoperative – the gift adeems
• You can't give something away that you do not own
• There are some exceptions – If I say I give my blue car to Joe but I do not have a blue car, I can give a
direction to my executor to buy a blue car
• Reynolds v Bonnici 2017
• In NSW there are at least four situations where a valid legacy might adeem
• (a) A gift of specific property fails if that property no longer exists
• (b) a portion – parent has gift in the will but during lifetime makes particular gift
• (c) where a will makes a gift for a particular purposes and the will maker subsequently makes an
intervivos gift for the same purpose – the testamentary gift is a deemed (I give 100 for establishing a joe
blog trust but then testator gives 100 during lifetime for purpose of establishing joe bloggs trust)
• (d) an express ademption where will maker makes will containing gift but subsequently makes as
intervivos gift with the intention that once accepted it adeems the testamentary gift
• If a testator bequeaths a specific article or devises realty by will and the subsequently sells, transfers,
loses or destroys it, the bequest or devise fails
• Re Clifford: where a will included a legacy of "23 shares" in Company that belonged to the testator. At the
time each of the shares were worth 80 pounds. However, the Company changed its name and subdivided
the shares into four 20 pound shares. The Court held shares changed in form and not in substance, and
where property changes in form and not in substances, no ademption occurs. The legatee took the
equivalent number of shares representing the original 23.
• So where a gift changes in substance – ademption occurs
• When determining whether ademption has occurred, the court asks two questions:
o Is the gift specific (rather than general)?
o If it is a specific gift, is the gifted property in the estate?
o If the gift is specific and the gifted property is not in the estate, the gift fails. The beneficiary
receives nothing and cannot receive the cash equivalent of the gifted property.
Example
I leave my Sidney Nolan painting to my grandson David (in my 2008 will)
In 2015 I sell the painting for 30k
I deposit it into a bank account that is part of my estate
The gift has adeemed, the sale proceeds fall into residue (rather than passing to David)
Example
I leave 200 shares in Tyre Co to Emily
In my assets I have 100 shares in Aus Tyres (in 2010 Tyre Co was subject to a takeover by Aus Tyres and
shareholders were given an option to be issued 1 share for every 2 shares previously owned in Tyre Co – I
exercised that option)
Re Clifford: The shares changed in substance and not form so no ademption occurs
Emily will be entitled to the 200 shares
Lapse
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Beneficiary dies
A beneficiary must survive the testator by 30 days otherwise the gift lapses: s35(1) Succession Act 2006,
unless there is a contrary intention in the will: 35(2)
The lapsed gift will fall into the residue of the estate, however if there is a clause which directs it to go to
next of kin for example (i.e. a contrary intention) that will take effect.
If the testator leaves a gift to their child and that child dies before 30 days, then their share goes to the
children of their child (grandchildren) in equal shares: s41 unless a contrary intention appears: s41(3) and
the children of the child must survive the testator by 30 days
Exceptions to the Lapse Rule
when the gift in question is to a charity
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s35(2) A gift will not lapse and fall into the residue of the estate if there is a contrary intention
S41 If testator leaves gift to their own child who does not survive them, their share goes to their
children's children in equal shares
joint tenancy (both personal and real property)– a gift to persons as joint tenants where one predeceases
the testator means the survivor takes the whole of the gift unless both joint tenant predecease the
testator. However, not the case for tenancy in common – as the death of one means their whole share
lapses.
There is a presumption that whenever you have gifts to groups of people they are presumed to take gifts
as tenants in common
Abatement (general legacy)
This occurs when all the funeral, testamentary and administration expenses and debts have been paid, and the
assets that are left over are insufficient to pay all the legacies in full
Where this occurs, the legacies abate and a person named as a legatee may lose all or part of his legacy as a result
Lets say estate consists of 200k – will says I give 100k to J, 100k to S, and 50k to E
These legacies will abate rateably
There are two parts for J – 50 and 50
2 parts to S – 50 and 50
1 part to E
200/5 = 40
J gets 80k, S gets 80k, E gets 40k
Subject to contrary intention
Class gifts
• Gift to a class of persons is normally taken to refer to those persons who belong to the class or after the
date of death of the testator, i.e. my grandchildren
• If there is no specific wording, the right of survivorship operates and if one dies the other/s will take the
whole lot.
• The specific identification of persons can prevent the gift operating as a class gift in favour of all the
grandsons/nephews/children
Void for uncertainty – Hickin v Ors
• The testator was estranged from children and adult children
• children had converted to Jehovah's witness
• I leave my children x y z gifts provided they converted to roman Catholicism
• should it be voided for uncertainty – because it was not clear what should be done to become a roman
catholic – court said not void for uncertainty – particular steps that people can take to become roman
catholic – not void for that purpose
Rejecting a gift – a gift may fail as a result of a voluntary act of beneficiary – passes to residuary beneficiary or on
intestacy
Public Policy – the individual's freedom is overridden in the interest of some higher good, in light of public interest
Hickins v Ors
I give Joe a gift provide he murder 10 people – void for public policy reasons – gifts that encourage an illegal
purpose
Expenses
• Expenses are the costs associated with the maintenance and preservation of the property that forms the gift.
• In the case of a specific gift, the expenses fall to the beneficiary and not the general estate, subject to contrary
intention shown in the will: Re Rooke;
In the case of a general gift, the beneficiary is only liable for expenses from the date the property passed to them:
Re Collins’ Will Trusts [1971] 1 WLR 37
Gift of shares
Re Plowright: a gift of shares (held to be general gift) which have ceased to exist at the testator's death in which
case it is impossible to obtain the shares or to ascertain their value.
Order to pay liabilities with assets
1. Assets undisposed of by will, subject to retention of a fund sufficient to pay pecuniary
legacies;
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2.
Assets not specifically disposed of by will but included (either by specific or general
description) in a residuary gift, subject to retention of a fund sufficient to pay pecuniary
legacies;
3. Assets specifically appropriated or disposed of by will (either by specific or general
description) for the payment of debts;
4. Assets charged with or disposed of by will (either by specific or general description)
subject to a charge for the payment of debts.
5. The fund, if any, retained to meet pecuniary legacies;
6. Assets specifically disposed of by will, rateably according to value.
IE Specific gifts are last – executors will do everything to try and ensure specific gift get to their intended new
owners.
Creditors get first pick – from what part of the estate do they get paid
Creditors are paid first from residue, then from general legacies and then to the extent necessary from
specific gifts
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Topic 14: Administration of Solvent Estates
Administration of assets of solvent estates
• The order in which creditors are paid – who of the beneficiaries is required to meet these liabilities first
• If the estate is solvent, there is a statutory hierarchy of assets that are to be used to pay debts: s46C PAA
Administration of Assets
• The assets in a solvent estate are to be applied, subject to the provisions of Locke King's Act and any
directions contained in the will.
• 46C Administration of assets
• (2) Where the estate of a deceased person is solvent the deceased person's real and personal estate shall,
subject to the provisions of any Act as to charges on property of the deceased and to the provisions, if
any, contained in the deceased person's will, be applicable towards the discharge of the funeral,
testamentary, and administrative expenses, debts, and liabilities, payable thereout in the order
mentioned in Part 2 of the Third Schedule.
SCHEDULE 3
(Section 46C)
Part 2 - Order of application of assets where the estate is solvent
The order in which assets of the estate are utilised to pay debts
A Assets not disposed of by will (intestacy – comes off the top)
B Residue
C Assets specifically appropriated for payment of debts
D Assets charged with payment of debts
(Note – "c" or "d" – as a matter of practical reality – these assets go first before "a" "b")
Unless the will specifically provides otherwise, the assets (if any) that are undisposed of are to be applied first, if
exhausted, then assets covered by a residue clause and continuing in the above order.
E pecuniary legacies
F specific legacies
The above order can be varied by specific language: s46(2)
Example - Intestacy
2 children – beneficiaries
Estate:
House worth 1 mil
Cash of 500k
Creditor – liability is 500k
Does not matter what assets – 500k comes off – assets are not set aside for any particular purpose
Note if spouse – spouses legacy will be preserved and protected last – in that situation it's the residue that bears
debts
Example - Intestate
2 children previous marriage
spouse who is not mother of children
1.5 million cash
Creditor – liability is 500k
Liability comes off the top, residue of 1mil – spouses gets roughly 470k + statutory legacy + 1/2 residue
The statutory legacy is not liable to pay creditors, unless the statutory legacy is more than the estate (i.e. only 400k
available, liability is 200k, creditor gets paid first, 200k left in estate and that would go wholly to the spouse as that
is as much of the estate that can be awarded under statute and no residue so kids get nothing)
Example – Will
Must pay in accordance with order above
1 Assets not disposed of by will (intestacy – comes off the top)
From anything that forms part of the estate that falls under partial intestacy
2 Residue
Not assets that are specifically gifted – the leftovers
You do not know what residue is until you have distributed and all creditors paid
3 Assets specifically appropriated for payment of debts
In practice, If a will says I set up fund to pay debts of the estate – the testator has displaced the order in Part 2
Sched 3 by saying this
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4 Assets charged with payment of debts
Goes against Locke kings act and s145 conveyancing act
(Note – "3" or "4" – as a matter of practical reality – these assets go first before "1" "2")
Unless the will specifically provides otherwise, the assets (if any) that are undisposed of are to be applied first, if
exhausted, then assets covered by a residue clause and continuing in the above order.
5 pecuniary legacies (monetary legacies)
6 specific legacies
Example
1 mil in estate
Partial Intestacy 500k
Creditor 400k
1 – assets undisposed of the will
400k from partial intestacy goes to creditor
100k would be distributed according to rules of partial intestacy
1 million is untouched and the will will act an operate according to its terms
Example
Estate of Louis
• 2 mil in cash
• House at 123 Fake st (subject to mortage of 500k) Property is worth 1 mil
• Ferrari worth 250k
Creditors
• Mortgagee of 123 Fake St
• Other creditors of valid debts – 1 mil
Will
1. I give my property at 123 Fake St to Sam
2. I give 100k to each of Snap Crackle and Pop (general legacies)
3. I give my Ferrari to Jose (specific gift)
4. I give residue of my estate to Linda
According to Locke King's Act, that mortgage will travel with the property – there is no clause that says general
estate or fund to pay mortgage. Samuel has to pay mortgage
General legacies to S C P – not affected
Specific gift to Jose not affected as it is a specific gift
Residue (2 in the order) to Linda is affected to pay creditors – residue will be used to pay creditors – so 700k will be
left for Linda
Residue is used first because there is nothing on partial intestacy in this case
Example
Will of Sultana
• I give my property at 77 smith lane to Michael
• I give 500k to Miguel
• I give 100k to each of my 5 children, apple, banana, pear, orange and grapefruit
• I give residue to my wife Mrs Prune
Assets
• Property at 77 smith lane
• Cash 1.5mil
Debts
• Creditor/s – 1mil – all valid
First, distribute property to Michael as that is a specific gift
Nothing here has fallen on partial intestacy, so the first thing that is used is assets the form part of residue
That means, because there is a creditor of 1 mil and cash of 1.5 – Mrs Prune will get nothing
Then we have 2 general legacies – 500k to M and 100k to each of 5 children (500k to children in total)
These assets are going to abate rateably – they are going to bear equally the burden of what was that 1 million
dollar liability – they have to bear the same proportional share of the debt
M will receive 250k and each of the kids will receive 50k (there is only 500k left in the property – 500/10 parts =
50k each – Miguel had 5 parts so 5 x 50 and kids had 1 part each so 50k each)
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Example
Will of Sultana
• I give my property at 77 smith lane to Michael
• I give 1 mil to Miguel
• I give 500k to potato
• I give residue to my wife Mrs Prune
Assets
• Property at 77 smith lane
• Cash 1.5mil
Debts
• Creditor/s – 1mil – all valid
We have 500k available
500/3 = to get the value of each part = 166k
2 x 166 to M = 333k
1 x 166 to potato = 166k
Mrs Prune gets nothing
Mrs Prune to get more - ? Some people argue that actually there is no more difference between property and
money – so the property should also rateably abate – So Michael should pay 2/5ths – the issue is unresolved
There is an argument that Michael's property will have to abate rateably too
Example
Will of Sultana
• I give my property at 77 smith lane to Michael
• I give 1 mil to Miguel
• I give 500k to potato
• I give residue to my wife Mrs Prune
• I direct my executor to pay any liabilities and creditors from the proceeds of sale of 77 smith lane, if sale is
necessary, before any liabilities are paid from my general estate
Assets
• Property at 77 smith lane
• Cash 1.5mil
Debts
• Creditor/s – 1mil – all valid
That would displace the order in Sched 2 and Michael would receive proceeds of sale
Locke King's Act
• Special rule referred to as the rule in Locke King's Act, now contained in s145 Conveyancing Act 1919
(NSW) which states that property subject to a charge is primarily liable for the payment of the charge,
unless there is a contrary intention by the deceased (signified by will, deed or other document): s145(1)
• The rule in Locke King's Act is subject to their being a contrary intention (does not need to be in will, can
be in another doc): s145(1)
• The rule will be excluded if there is a direction to pay debts out of a fund which is not residuary: Re Fegan
• A general direction to pay debts from a residuary fund will be insufficient to exclude the rule and the
operation of s145: Re Neeld – UNLESS the direction is specifically mentioned for certain charges, the
exclusion of the rule will then apply to those specifically mentioned: Re Bernstein
• The rule applies to real and personal property and to all types of charges including mortgages, whether
legal or equitable, liens for unpaid purchase money and statutory charges such as unpaid council rates.
• The effect of the rule is that a beneficiary takes property subject to any charge and cannot have the
charge paid from the other assets of the deceased – the charge flows with the property
• The rule can be excluded by the creation of a special fund for the payment of charge and if the fund is
exhausted, the left over part falls back onto the charged property and not on the general estate: Re Fegan
Example: Where mortage passes with property:
• To my son, Ethan (E), I leave my property at 18/205 Eldridge Esplanade, Edgecliff NSW.
• But - 18/205 Eldridge Esplanade, Edgecliff NSW $480,000 (mortgage to ANZ
• $60,000)
• Ethan died in a car accident. Ethan had issue.
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Due to rule Locke King's Act, the Edgecliff property will pass to E's issue with the mortgage, as Edgecliff is
a property with a charge, as there was no contrary intention and no creation of a special fund for the
payment of the charge
Example: Where mortgage does not pass with property
• To my daughter, Felicity I leave my property at 4/6 Fallows Street, Frenchs Forest NSW. I direct that
Felicity is not to bear any mortgage on 4/6 Fallows Street, Frenchs Forest NSW in existence at the date of
my death. Any mortgage is to be paid from ANZ account 262-000 626-000.
• 4/6 Fallows Street, Frenchs Forest NSW $600,000 (mortgage to ANZ $45,000)
• But – the Bank account only has $25,000
• Felicity is married and has issue and a spouse
• The French's forest property will pass free of the mortgage to Felicity as there is a contrary intention
(s145(1) and there is a creation of a special fund (Re Fegan) for the payment of the charge. However, the
special fund (the bank account) will only be able to meet a part of the mortgage ($45,000 - $25,000), and
$20,000 will be left over.
• The $20,000 outstanding mortgage will fall back onto the property or would be paid out of residue (if this
is reasonable to conclude) (Re Fegan). Prima facie "I direct that Felicity is not to bear any mortgage" does
indicate that it paid from residue.
Superannuation Funds – generally excluded and left to the Trustee's discretion
Re Tong: property undisposed of by will is property undisposed of by will regardless of whether it happened on
purpose or by accident
Null and void gift due to interested witness provisions
Perpetual v Walker: Lapsed share of residue (4th) normally failed part of residue goes to Order 1
order of priority displaced by terms of the will so as to remove residue from being calculate at the start
Permanent Trustee v Temple – whole of provisions need to be read to determine whether order is displaced
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Topic 10, 11 and 12: Jurisdiction of the Probate Court, Estates Pending Grants of
Representation and Grants of Representation
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Who is responsible for giving effect to what the will says and who has the power to administer estate
A will can name and Executor, but the Executor will not have power to administer the estate until they
have a grant of probate
A similar concept applies with respect of intestate estates, the Court will issue Letters of Grants of
Representation
The grant acts as proof that will is the last will and it conveys authority that the executor has the power
to perform their duties, and administer estate in respect of what the will says
The jurisdiction for the Court to determine probate matters is the SCNSW. "Probate" falls into – in
chambers grants, probate suits, probate undue influence and capacity, will to be admitted as informal
document, whether executor is liable
Matters about will construction and family provision fall under Court's equitable jurisdiction
Probate disputes are heard as part of the Equity division of the SCNSW
Courts functions – issue grants of representation – letters of administration and probate and decide
probate disputes
Conditions precedent for a grant to be made (overlaps with Grants of Representation topic) – whether
the court is in a position to make a grant of representation to any person, will depend on:
1. Deceased must leave property in NSW
2. Death or presumed death
Property in NSW
Property can be a range of things – It can be real property if in NSW, movable property (money in bank
accounts, shares, personal affects)
The will must deal with that property. Eg I have a property in NSW and in my will I say I leave my property
in QLD to Joe. The SCNSW will not have any jurisdiction to make any order or to make any grant of
representation in respect of that will as there is no property in the WILL to be dealt with in NSW.
However – Intestacy – someone could get a grant on the basis that there is property in NSW and that
property is governed by NSW intestacy rules. Usually the person with the biggest entitlement in intestacy
will be entitled to take a grant of representation
o Moveables
o Probate is not a federal jurisdiction – it is a state based jurisdiction
o Property is governed by the estate in which it was located or the state in which the deceased was
domiciled
o The rule is the law that applies to immovable property (real property) is the lex situs (where the
property is located). i.e If the deceased dies in Bermuda, and there is real property in NSW and
he makes a will in Bermuda, it may be possible for NSW to grant probate of the Bermudan will if
it deals with NSW property. The law of NSW is the law that will govern succession of the NSW
asset.
o The law that applies to moveable property (cash etc) is governed by the law of domicile (domicile
as at the date of death). If i have $100k in QLD bank account, but I was domiciled in NSW as at
the date of my death, QLD law will not apply to that money. This applies to moveables
irrespective of where they are located i.e can be overseas
o Eg say no will – intestacy – I have cash in QLD and real property in NSW – domiciled in QLD. The
intestacy rules in QLD will apply to the cash and the intestacy rules in NSW will apply to the
property.
Death or presumed death
Probate and Administration Act
s40A Evidence or presumption of death: (1) Where the Court is satisfied, whether by direct evidence or
on presumption of death, that any person is dead, the Court shall have jurisdiction to grant probate of
the person's will or administration of the person's estate, notwithstanding that it may subsequently
appear that the person was living at the date of the grant.
Statutory source of power is s40A
Direct evidence of death can be proved by providing a death certificate
Estate of Lyn Burtonwood: An application for a grant for presumption of death occurs in all cases where
the body is not found.. even though a certificate of death may have issued
Presumption of death at common law – If a person has not been heard of 7 years that they are
presumed dead
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However Estate of Lyn Burtonwood: even if 7 years has not passed, there will many cases where the Court
can draw an inference of death from surrounding circumstances
s40B Presumption of death
o (1) If a grant of probate or administration is made on presumption of death only, the provisions
of this section shall have effect.
o (2) The grant shall be expressed to be made on presumption of death only.
o (3) The estate shall not be distributed without the leave of the Court.
o Leave may be given subject to conditions
In the event that the deceased turns up alive, the Court may revoke grant on any terms it sees fit
Where deceased owns real property in multiple states
you get a grant of probate in one jurisdiction and then apply in other jurisdictions for a reseal – Reseal will
say Queensland will allow this grant of probate to deal with the property in queensland
In the Goods of Morton – whilst in Carlton appointment of executor was necessary to show nexus with
property, in this case where the will did nothing more than appoint a testamentary guardian, the will can
not be appropriated for want of connection to property, simply by appointing a testamentary guardian.
The difference between this case and Carlton is than an executor is a trustee over property whereas there
is no real property connection with a testamentary guardian
In re Carlton – court found that a will can have operation in respect of property even if it does not dispose
of it. there was will appointing an executor in a particular jurisdiction was enough to find the will dealt
with property
In the Goods of Tamplin – if the will does not deal with property in the jurisdiction, even if there is
property in the jurisdiction, the court is not able to grant probate over it
New York Breweries – a foreign grant is no good in a different jurisdiction than the foreign grant was
made in, unless there is some authority like a reseal
Boyd v Leslie – grant of probate in NSW does not enable executor to file appearance in VIC
Estates Pending a Grant of Administration
• Fred dies, he leaves a will appointing Joe as his executor. The will is valid.
• What happens between the period a person dying and the court making a grant of probate ("lacuna")
• And what rights to beneficiaries and executors have during this period
• s61 Probate and Administration Act (kind of legal fiction)
• When a person dies, until probate or administration is grant, real and other property will vest in the
NSW Trustee
• s61 provides prevention of a lacuna in the chain of title – ensures chain of title continues
• If someone decides to deal with property (disposing of assets, physically taking possession, dealing
with deceased's business) before a grant of probate is made they are referred to as an intermeddler
(didn't have authority or any basis to deal with the estate, they act as though they are executor or
administration)
• Court can find this person to be an Executor de son tort – someone who messes around with estate,
without authority to do so, they can still be bound by what they have done and more importantly
they can be sued
• Not intermeddling – taking steps in times of emergency, advertising probate
• The reality is people do many things before a grant of probate is granted
• Defence – "Plane Administravit" – I am not liable because I dealt with the estate in the way it ought
to have been dealt with
• Carolyn Deigan:
• The Appeal: An executor named in a will rescinding a contract in her capacity as an executor before
she got a grant of probate
o Because she purported to a rescind a contract without a grant of probate, the rescission was
not effective
o White J found she did have authority, not withstanding she did not have a grant of probate
o White J effectively found an executor of a will does have authority to take steps before
probate is granted (contrary to decisions of superior courts)
o Many estates are administered without a grant of probate – i.e using monies to pay for
funeral expenses, transferring monies to executors accounts
o In my view, considering s44 and s61, the executor does have such powers
o S61 is a bare legal title – no active duties and no powers of management or organisation
o By definition the estate is unadministered and the executor will be the beneficial owner of
real and personal estate. A such the executor is entitled to possession of the assets
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An executor has authority from the will to collect assets, pay debts and manage the estate.
That authority is only removed to the extent that removal is necessarily implied by s44 and
s61 of pAA
o Ms Deigan's giving notice of rescission was exercise of rights arising under the contract of
sale, not a divestment of the NSW Trustee's titled to the contractual chose in action.
o Ms Deigan did get a grant of probate, so the effect of s44 would have allowed to her to
rescind the contract, even if she did not have authority to rescind the contract at that time
o s44 came back retrospectively to grant her with authority
What White J argued is obiter only. You cannot say that the Court determined an executor can take
steps prior to grant of probate.
The normal position is that no one has authority to deal with an estate after death until they have a
grant of administration, other than if their particular urgent steps. That has been the position under
common law interpretation of s61 and s44 up until the Deigan case. If the obiter of justice white is
correct, being an executor provides far more authority.
If you had a problem question on this you should say – On one view the executor has no authority to
take any step prior to a grant of probate or letters of administration being given, however, the obiter
of White J in matter of Deigan could be argued that the authority to take steps arises from the will
and therefore the executor wont be found not to have had authority to take the particular step, if the
reason of White J is accepted
s44 Upon the grant of probate or administration, all real and personal estate shall be from the date of
death vested in the Executor (retrospective vesting provision)
Grants of Representation
• 3 different types of grant
o A grant of probate to named executors (I appoint A and B as my executors and trustees
or I appoint A as my executor but if he is unavailable, I appoint B)
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A grant of letters of administration on intestacy (the only way anyone has authority to
deal with an intestate estate is through a grant of letters of administration – no
exceptions). Letters usually say person X (person most entitled) has authority to deal
with estate according to rules of intestacy
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Inbetween – a will that appoints an executor and an alternative executor – but both are
unavailable – court grants letters of administration with the will annexed
Appointments of executor can be subject to conditions – i.e. executors for particular property,
limited to that
Executors can renounce probate – must be before they have taken a grant. It will go to
substitute.
o An executor renounces executorship or dies
o An executor appointed by will can renounce their executorship as long as they have not
done any acts regarding the will
o If this happens, under s63 of the Probate and Administration Act 1898, it is possible for
a grant of representation to be made to someone other than a person named as
executor in the will. This is done with a will being annexed rather than a grant of
probate.
Anyone can act as executor – testator can appoint whoever they want
Court has jurisdiction to refuse grants to particular people – mental incapacity or legal disability
i.e. minor
Jurisdiction to 'pass-over' executors: where executor not appropriate – in jail or inappropriate or
guilty of fraud, conflict of interest
However if testator was aware of conflict of interest and still appointed that is an exception to
the rule - I.e. interests as creditor of estate and executor – conflict of interest
Court can appoint beneficiary as executor
Court can revoke the grant of probate and then whoever is appointed executor can sue the
previous executor for breach of trust
A grant may be revoked for delay of the administrator: Bates v Messner
Passing over an executor is different to revoking a grant (this person has done something wrong)
Grants of letters of administration - Intestacy
S74 PAA – the Court has an overriding discretion to appoint executors on intestacy or where
there is no ready, willing and able executor
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The types of person the court can grant administration to – s63
Usually a person who is a surviving next of kin or major beneficiary of the estate
63 To whom administration may be granted
The Court may grant administration of the estate of an intestate person to the following persons,
not being minors, that is to say to:
(a) the spouse of the deceased, or
(b) one or more of the next of kin, or
(c) the spouse conjointly with one or more of the next of kin,
or if there be no such person or no such person within the jurisdiction:
(i) who is, of the opinion of the Court, fit to be so trusted, or
(ii) who, upon being required in accordance with the rules, or as the Court may direct, to apply
for administration, complies with the requirement or direction,
then to:
(d) any person, whether a creditor or not of the deceased, that the Court thinks fit.
Grants of Representation
Grants can be revoked
The court can make emergency grant – special grants – a grant with particular power – always
grants of representation not grants of probate – if you have an executor with disability or minor
Estate Kouvakas - The distinction between a grant in common form and a grant in solemn form
o A grant in common form is a grant that is not subject to dispute where as a grant in
solemn form is subject to contentions and dispute
o It is much easier to revoke a common form grant then a grant in solemn form
o Grants in solemn form are "said to be the final determination, against the whole world"
whereas a grant in common form is "inherently revocable"
o A grant of probate bears the character of a court order
o An order for a grant in solemn form is only made after the court has reviewed all
evidence which satisfies that it be "binding the whole world": Re Dowling 2013
o Elements necessary for a grant in solemn form are: (a) the identity of each person
adversely affected by the application; (b) that each person adversely affected has notice
of the application; and (c) that any will or codicil sought to be proved was duly
executed.
o Where an application for a revocation of grant is made, close attention needs to be
given to its facts, procedural history and the due administration of justice
o Grants of probate or administration a revocable only if a proper cause is shown
o The court generally has a right to decline to make a revocation order if it believes there
is no utility in granting that order: Willis v Earl
o Grant in solemn form can be revoked if procured by Fraud: In re Gillard
o Grant in solemn form can be revoked if a subsequent valid will comes before the Court
o The distinction between a grant in common form and a grant in solemn form will not
of itself be the determinative factor in deciding an application for the revocation of a
grant
o Where a grant is made by error, proof of the error may justify an order for revocation:
Kozak v Berwecki
o Without being prescriptive in any way, the topics upon which the Court might
reasonably expect to receive assistance from parties before exposing an estate to
expensive, protracted litigation include the following:
a) Whether the grant under challenge is expressed to have been a grant
in solemn form.
b) In summary terms, the size and composition of the estate of the
deceased at the time of death, and currently.
c) Whether any (and, if so, what) part of the estate has been distributed
(and, if so, when and to whom).
d) The nature and foundation of the interest claimed in the estate by
each applicant for a revocation order.
e) The nature and foundation of each competing interest.
f) The date, and circumstances, of each applicant's first knowledge of:
the death of the deceased;
(ii) the application upon which the grant was made; and
(iii) the grant.
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The existence and duration of any delay on the part of an applicant in
challenging any will, or grant, under challenge.
o Any explanation for such delay.
o The evidence relied upon in support of the grant as made.
o Any Reasons published by the Court in support of the grant.
o The grounds relied upon by each applicant to contend that:
the grant should be revoked; and
(ii) any underlying will, or wills, should be held invalid.
(l) The evidence available, or reasonably thought likely to be available, to each
applicant in support of a prima facie case of invalidity of a will.
(m) The nature and scope of any inquiries thought to be made by an applicant for
the purpose of obtaining evidence in support of his or her application.
(n) Whether there is now pending, or anticipated, a claim for family provision
relief made in relation to the deceased.
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Topic 13: Some Powers and Duties of a Legal Personal Representative
Duties
• gather in assets
• Pay debts of the deceased
• distribute or administer estate in accordance with terms of will or in accordance with rules governing
intestacy
Executor's Commission
• An executor can only apply for commission once accounts have been passed: s86(2)
• The court has the power to allow commission to a legal personal representative; s86 of SA
• However, the applicant (executor) must file and pass accounts in a manner prescribed by the rules of
court: s86(2)
• The representative is not entitled to commission if the representative is in breach of duty to the estate,
even if the loss that is suffered by the estate is made good: In the Will of Wallace
• There is a presumption that if a legacy is given to the executor, the legacy is a complete recompense for
the executor's pains and troubles in administering the estate, therefore, prima facie, the executor is not
entitled to any further renumeration unless there are sufficient circumstances that rebut the
presumption, in which case the executor can take both the legacy and commission: In the Will of Wallace
(e.g. Legacy given to executor but in his capacity as a personal friend of the testator)
• If a legacy is given to the executor "in lieu of commission" the appointment of the executor is regarded as
being conditional on acceptance of the legacy and the executor is not entitled to any further
renumeration, unless the amount of the legacy is so small that it is illusory: Re Murphy
• If the will drafter who appoints him or herself as executor, inserts a professional charging clause, this will
not constitute a conflict of interest and duty: In the Will of Shannon, but the effect of the clause should be
explained to the testator
• If an executor is a professional (e.g. a solicitor) and is authorized under the will to both charge for their
work and claim commission, their fees authorized under the will not have the effect of reducing the
amount of commission the Court will award: In the Will of Shannon
• If no charge for professional fees is made by the executor, whether that is because there was no
authorization under the will or where there was authorization but the executor did not charge, such
professional work may be taking into consideration as to the amount of commission to be granted: Re
Craig
• Commission operates as an exception to the rule that a trustee cannot benefit from a trust: In the Will of
Shannon [1977]
Special pleas and immunities
• Distributed estate on notice of a debt
• In particular circumstances that is if an executor breaches trust or a breach of duty or distributes estate
on notice of a debt/claim, that LPR can be personally liable for those distribution
• I am a creditor I say the estate owes my $5000, the executor hears about my claim but ignores it and
distributes to beneficiaries. Since the executor had notice of the claim and arguably it was not a good
faith distribution, the creditor can pursue the LPR – and LPR may be personally liable from their assets to
satisfy the debt the estate owes me.
• S92 Probate and administration act
o An executor or administrator may distribute assets
o if the assets are distributed at least 6 months after the testator's death or intestates death AND
o An approved notice has been issued AND
o the time specified in the notice is not less than 30 days AND
o the time specified in the notice is expired
• If a notice of this kind is issued and the executor does not have notice of any claims the executor will be
protected from personal liability
• Lets say you get to 6 months after death and no claims no debts evident, Executor will go ahead and
distribute, but just to be safe they issue a s92 notice
• Notices used to be via newspaper, they are now done using online notice system (after Jan 2013) – all
public
• If the executor receives notice of a claim, then the executor will not be entitled to the protection of s92.
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The creditor can attempt to trace the amount in the hands of the beneficiaries – a distribution where they
have a claim – equity does not come to the aid of volunteers – all beneficiaries are volunteers as any
legacy they receive is a gift – it is not a result of a contract
The LPR may have an obligation to meet the distribution i.e. do what they can
s93 Probate and Admin Act
o If you do a s92 notice and then someone writes in with a claim, then you can issue them with a
s93 notice – you have 2 months to bring your claim against – otherwise I will seek an order of the
court to get your claim barred
What protection a s92 notice or notices equivalent – whether the protection extends to claims only
from creditors:
Newton v Sherry 1876
o A distribution was made to intestacy beneficiaries. notice was published
o Someone supposedly entitled, claimed he was liable to 1/8th. Was not a creditor. Held executor
was protected by the notice. (a s92 notice will protect and executor from claims in the context of
intestacy, not just from a creditor)
In the will of Walker 1943
o Argument about entitlement to an annuity that was gifted as part of a will – both beneficiaries
made claims in response to a s92 notice and a s93 notice was issued to bar the claims. The
executor was successful.
o S92 and s93 can also apply to purportedly entitled beneficiaries, not just creditors
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Topic 15: Statutory Wills
Small v Phillips [2019]
• Testator lost her mental capacity due to a stroke she suffered.
• At the time of stroke she had an unexecuted draft will which was prepared by her solicitors
• New draft will was similar but not identical to earlier unexecuted will
• Testator refused to execute new draft
• Testator also had a previous executed will in addition, also prepared by her solicitors
• Held – The court must be satisfied that the proposed will is or is reasonably likely to be, one that would
have been made by the person if they did have TC. Primary judge not satisfied of this. Appealed
• COA found that testator was incapable of making a will (no TC) and having regard to intended gifts
proposed by her draft will and the gifts she made in her earlier will, the will proposed was reasonably
likely to be a will that would have been made by the testator had she had TC
• Evidence needs to satisfy the onus of establishing reasonable likelihood (which is on person seeking to
propound that there is a reasonable likelihood the will would be made in that way had testator had TC)
• Reasonable likelihood: The material before the primary judge indicates Mrs Phillips did not deliberately
refrain from making any will and was not content to embrace intestacy:
• The estate was valued at millions of dollars
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Topic 16: Family Provision
An application for family provision can be made whether or not the administration of the estate of the deceased
has been granted: s58(1)
The application must be made no later than 12 months after the date of death, unless the court otherwise orders
on sufficient cause being shown: s58(2)
When a provision order is made it operates as a codicil to will: s72 SA
Sufficient cause to grant extension
Thomas v Pickering [2011] NSWSC 1572
Set out what factors the Court will consider in order to determine whether to extend the 12 month
limitation for making a claim:
• Reason(s) for the lateness of the claim;
• Whether the beneficiaries under the will would be unfairly prejudiced;
• Whether there has been any unconscionable conduct by either party;
• What is the strength of the claimant’s claim.
Per, s59 for a family provision order to be made by the Court, the applicant must:
• Be an eligible person within the proper meaning of s57(1) (note factors warranting)
• 'Adequate provision for the proper maintenance, education and advancement in life' was not made by
the will of the deceased: s59(1)
• If so, the Court may make such order for provision out of the estate of the deceased person as the Court
thinks ought to be made for the maintenance, education or advancement in life of the eligible person,
having regard to the circumstances and factors: s59(2)
In Singer v Berhouse, HCA developed a "two-stage" process to determine whether family provision orders should
be made (when old legislation was in force):
• “The first stage calls for a determination of whether the applicant has been left without
adequate provision for his or her proper maintenance, education and advancement in life. [the
jurisdictional question]
• The second stage, which only arises if that determination be made in favour of the
applicant, requires the court to decide what provision ought to be made out of the deceased's estate for
the applicant. [the discretionary question]”
Andrew v Andrew [2012]
• Succession Act confers power on Court to make a family provision order if the court is satisfied the
testator has not made adequate provision for the applicant – this has a broader application than the
previous family provision legislation
• Succession Act allows the court to consider various factors when determining whether or not to make a
family provision order, as well as those contained in s60 – but they are not obliged to
• The plaintiff proffered no reason as to why they did not have a relationship with their father – had not
spoken to father very long time – court sometimes looks for explanation as to estrangement
• Other cases can be guidelines but they are not principles – the Court has to be carefully about elevating
• the guidelines from other cases to principles – every case is different
S60 Matters to be considered by Court
Court may have regard to these matters for the purpose of determining whether applicant is eligible person and
whether to make a family provision order (2)
(a) any family or other relationship between the applicant and the deceased person, including the nature
and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the
applicant, to any other person in respect of whom an application has been made for a family provision
order or to any beneficiary of the deceased person's estate,
(c) the nature and extent of the deceased person's estate (including any property that is, or could be,
designated as notional estate of the deceased person) and of any liabilities or charges to which the estate
is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the
applicant, of any other person in respect of whom an application has been made for a family provision
order or of any beneficiary of the deceased person's estate,
(e) if the applicant is cohabiting with another person--the financial circumstances of the other person,
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(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an
application has been made for a family provision order or any beneficiary of the deceased person's estate
that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and
improvement of the estate of the deceased person or to the welfare of the deceased person or the
deceased person's family, whether made before or after the deceased person's death, for which adequate
consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person's
lifetime or made from the deceased person's estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements
made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before
the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on
which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased
person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
57 Eligible persons
(1) The following are
"eligible persons" who may apply to the Court for a family provision order in respect of the estate of a deceased
person:
(a) a person who was the spouse of the deceased person at the time of the deceased person's death,
(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased
person's death,
(c) a child of the deceased person,
(d) a former spouse of the deceased person,
(e) a person:
(i) who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of
the household of which the deceased person was a member,
(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased
person's death.
{if an eligible person under paragraphs (d), (e) and (f) of the definition, there are factors warranting (s.59(1)(b) as
to which see above.)
De Facto
s21C Acts Interpretation Act – De facto definition
1. Meaning of “de facto partner” For the purposes of any Act or instrument, a person is the "de facto partner" of
another person (whether of the same sex or a different sex) if:
a) the person is in a registered relationship or interstate registered relationship with the other
person within the meaning of the Relationships Register Act 2010 , or
b) the person is in a de facto relationship with the other person.
2. Meaning of “de facto relationship” For the purposes of any Act or instrument, a person is in a "de facto
relationship" with another person if:
a) they have a relationship as a couple living together, and
b) they are not married to one another or related by family. 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.
3. Determination of “relationship as a couple” In determining whether 2 persons have a relationship
as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be
taken into account, including any of the following matters that are relevant in a particular case:
a) the duration of the relationship, - the longer the relationship exists the stronger the argument that it was a
more serious relationship that boyfriend/girlfriend, landlord/boarder
b) the nature and extent of their common residence, - whether parties live in same residence during entire course
of relo or in parts, whether one of the parties paid rent to the other, post or mail deliveries to the parties,
addresses on licences, tax returns, motor vehicle registrations
c) whether a sexual relationship exists,
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d) the degree of financial dependence or interdependence, and any arrangements for
financial support, between them,- joint bank accounts, health insurance, utility notices, Medicare card in joint
names, payments towards mortgages and loans, payment of various expenses for each other, sharing of household
expenses
e) the ownership, use and acquisition of property, - of real estate, living together, purchases of furniture an
chattels, motor vehicles
f) the degree of mutual commitment to a shared life, - living together, spending time together regularly, spending
time with each others family, regular phone calls, sharing meals, Christmas cards, invitations
g) the care and support of children, - whether the parties have children from other relationships, is there financial
support for children from other relationship, whether the parties care for children from other relationships
h) the performance of household duties,
i) the reputation and public aspects of the relationship. – attending functions together such as weddings and
parties, invitations, photographs of the parties at social events, evidence of neighbours, nicknames, provisions in
wills
Roy v Sturgeon
Powell J considered definition of de-facto relationship when looking at the De Facto Relationships Act 1984 (not
the SA or s21C) and determined that the phrase "living together as husband and wife on a bona fide basis"
should not be dissected into discreet elements, rather read together as a whole – an regard should be had to
human personalities and needs – whether a husband and wife live together on a bona fide basis will vary from case
to case
Simonis v Perptual Trustee: supported approach of Powell J, expression should be considered as a whole and not in
several parts.
Ball v Newey – Mr Ball and his partner had homosexual relationship for 3 years. They had been sharing a rented
property and agreed to buy a house together. They had a joint bank account. Mr Ball applied for provision and
argued that he paid the bills and did the shopping. Order was refused
What is adequate and proper –
• Bosch v Perptual Trustee Co: the use of the word ‘proper’ in this connection is of considerable
importance. It connotes something different from the word ‘adequate’. A small sum may be sufficient for
the ‘adequate’ maintenance of a child, for instance, but, having regard to the child’s station in life and the
fortune of his father, it may be wholly insufficient for his ‘proper’ maintenance.
• This was expanded on in Vigolo v Bostin: HCA held 'adequacy' of the provision is not to be determined
simply by looking at whether the applicant has enough upon which to survive or live comfortably
• Gorton v Parks
o Family provision claims cannot be seen in a vacuum
o Whether an estate is small or very large is a factor to be considered
o You have to weigh up how big the estate is and what people's needs are – what is their need and
how big is the estate – and what is the impact on the chosen beneficiaries
o In this case the estate was very large
Estrangement
"the mere fact of estrangement between both parent and child should not ordinarily result on its own that the
child is not able to satisfy the jurisdictional requirement of this act: Dolman v Palmer
Burke v Burke – Adult children, estrangement and s60
• The deceased was mother of 3 adult children in their 60s. One of the children 'Terry' had not spoken to
the deceased for approximately 20 years prior to her death. Terry made the decision to be estranged from
the family following an incident that took place. The deceased left a legacy of $100k to Terry's son and
residuary estate was split equally between her two other children (net value of the estate was 1.25mil)
• The question before the court was whether Terry's estrangement from his mother 20 years prior
precluded the court from making an order for provision from her estate.
• No real dispute that Terry satisfied both limbs of the s59:
o Terry was an eligible person (section 59(1)(a)); and
o Adequate provision for the proper maintenance, education or advancement in life had not been
made to Terry (section 59(1)(c)).
Under the third limb, the court is to consider whether to make such an order and the nature of the order. The
Court had regard to the factors in s60, specifically
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1.
2.
3.
4.
•
•
•
•
Any family or other relationship between the applicant and the deceased person, including the nature and
duration of the relationship (section 60(2)(a));
Any evidence of the testamentary intentions of the deceased person, including evidence of statements
made by the deceased person (section 60(2)(j));
The character and conduct of the applicant before and after the date of death of the deceased person
(section 60(2)(m)); and
Any other matter the Court considers relevant, including matters in existence at the time of the deceased
person's death or at the time the application is being considered (section 60(2)(p)).
Court of Appeal held, estrangement will not be a determinative factor against the making of a provision
however this is a factor that will be taken into account
Court of Appeal dismissed the appeal and held relevantly, there is no rule or principled that in cases of
significant need (Terry was bankrupt) there is an obligation to make provision for an adult child
irrespective of any estrangement.
Court will look at s60
Each family provision case is unique
Dependence
• S57(1)(e) – two limb test
o who was, at any particular time, wholly or partly dependent on the deceased person;
• and
o who is a grandchild of the deceased or was, at the particular time or at any other time, a
member of the household of which the deceased person was a member.
• "Dependency" is said to involve a high degree of reliance, so that if the material support is withdrawn, the
dependent person will face some difficulties in providing the support they were dependent on for
themselves – by reason of some physical, financial, emotional limitation or otherwise
• Dependency has to be more than minimal however it can be partial
• This sub-section is generally the one relied upon by step-children
• Grand children are specifically entitled to claim if the establish dependency "…at particular time…"
s57(1)(e)(ii)
• If not grandchildren, then applicant must establish both dependency and membership at any particular
time or any other time
• Membership of the household means a participation to a substantial degree in the general life of the
household: Benney v Jones
• Petrohilos v Hunter – court considered meaning of 'dependency'
o The word dependent is to be construed as to its ordinary meaning
o whether a person is dependent upon another is a question of fact
o While the most common form of dependence is financial, dependence can flow from other
factors such as accommodation, food, clothing and other necessities.
o Dependent does not have a very limited meaning
o A mother's services to a young child would satisfy the test – the child could not survive without
the provision of those services – it cannot be suggest that in a monetary sense this is
"valueless"
o The provision of services from a mother to her children, living with her, makes them partly
dependent – the same considerations apply to step-children
• Ball v Newey: Samuels JA 'Dependent in the ordinary sense of the word, means the condition of
depending on something or on someone for what is needed' Samuels JA there are other forms of
dependence that are similar to but distinct from financial dependence
Factors Warranting – (d) former wife, (e) dependent, member of household or grandchild) or (f) close personal
relationship
• If the applicant falls into any of the above categories, the court must determine whether there are any
factors warranting the making of the application: s59(1)(b)
• At the some point the deceased have a moral obligation or community standards obligation – was the
relationship such that in writing their will should they have contemplated that person
• Those applicants must demonstrate a basis for their claim at a higher degree than would be required by
other applicants, as such applicants are persons who would ordinarily be regarded as objects of
testamentary recognition by the deceased: Re Fulop
• E.g., the length of the relationship, the nature and quality of the relationship, ongoing relationship,
emotional contribution, whether there was a property settlement
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•
•
•
Churton v Christian (in the context of stepchildren) – objective test: would a reasonable person regard the
applicant as a natural object of testamentary recognition "having regard to all the circumstances of their
relationship with the deceased"
Dijkuijs v Barclay: (former spouses) The fact that the plaintiff has established she was a former spouse and
has financial need does not automatically entitle her to an order. The plaintiff will need to demonstrated
that in some way the deceased had a duty to her which involved that he was under some sort of
obligation/expectation to provide for her financial need.
Not with former spouses – if they divorced and there was a property settlement – it may be the case that
there are no longer factors warranting
Close Personal Relationship
s3 Succession Act – meaning of "Close personal relationship"
• Section 3 of the Succession Act provides that the meaning of "close personal relationship" is:
o a close personal relationship (other than a marriage or a de facto relationship)
o between two adult persons,
o whether or not related by family, who are living together,
o one or each of whom provides the other with domestic support and personal care.
o The two people do not need to be in romantic/couple relationship.
o They must provide domestic support AND personal care (both, would not suffice to have just
one)
• If you are living with someone and providing them with free care or domestic support (or they do the
same for you), the law recognises this as a 'close personal relationship' and gives you certain rights: s3(3)
Succession Act
• However, a close personal relationship is not taken to exist if the domestic support and personal care is
provided for fee or reward or on behalf on organisation (government agency, body corporate or charity)
s3(4) Succession Act
• Ye v Fung 2006
• Mr Ye was a student, boarded free of charges with Ms Fung until she died in 2001. Mr Ye and Ms Fung
were not related by family and did not have sexual relationship. Ms Fung was 37 years older and she
provided financial assistance to Mr Ye in the form of free board, meals and contributions to his tuition
fees, clothing and other necessities. Ms Fung required daily assistance with her daily routine due to her
age and medical condition, which Mr Ye provided. This included the administration of insulin injections
and topical medication, cooking food and going to the doctor with her, assistance with mobility, picking
up prescriptions.
• Held to be a close personal relationship.
Notional Estate Orders
• What is available for a family provision claim – what ever is the estate is up for grabs
• Notional Estate are assets which do not form part of the estate but they are what we call a relevant
property transaction – something the deceased controlled before they died
• I.e. We do not own our superannuation, but today we control it – I could issue a binding death
nomination, I could withdraw my super (if at right age) – So I have control of my super before I die
• Although superannuation does not form part of my estate it may be designated as notional estate
• It is only in respect of what I can control – for example, a relevant property transaction may be that I have
joint ownership of property with my wife – the day before I die I can sever the joint tenancy – the
severing of the joint tenancy means I only own 1/2 the property as tenants in common, to give in my will
– that means the court can only designated my 1/2 of the property as notional estate to satisfy an order
• If I am a beneficiary of trust – I have no control – therefore the Court has no power over it
• Alternatively if I was the trustee (in context of Discretionary Trust) – then I have control – Court can
awarded
• NEO is only valid in NSW
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