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120 Cards in this Set
- Front
- Back
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What characerises a will |
(i) It must dispose of property. (ii) It operates only as a declaration of intention (iii) It takes effect only on death and gives beneficiaries no interest until then. |
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Grant of Probate must be applied for if…
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The will appoints an executor and the estate comprises real property, shares or large bank accounts.
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Grant of Probate allows executor to
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Collect D’s estate & distribute it according to the terms of the will. If there’s doubt about what the will means, the executor can apply to Court to resolve the question of interpretation.
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Say the Grant is contentious… |
There must be a court hearing. If not contentious, the Registrar of Probates gives the grant. |
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What if the will doesn't appoint an executor?
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Probate Court must appoint an administrator & grant him letters of administration with the will annexed, to carry out the will
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What if there is no will?
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Probate Court must appoint an administrator & grant him letters of administration, to distribute the estate among the family according to a statutory intestacy scheme
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How to distinguish a will from other arrangements?
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A will is intended to have no operation until the maker’s death Will creates no vested interest until death. If property is vested in donee in donor’s lifetime, then giving donee a legal right before death so not making a will (even though it’s not performed until death).
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Re Armstrong
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If X transfers property to trustee for X herself for X’s life, and after X’s death to transfer the property to Y, then Y has a vested interest in remainder during X’s lifetime so gift not testamentary. Valid even if no formality.
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Russell v Scott
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If X transfers property to herself and Y as joint owners, and X dies, Y becomes sole owner (via principle of survivorship). The transfer is not testamentary, because Y acquired his interest at the time of transfer
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Beyer v Beyer, Bird v Perpetual Executors & Trustees Assoc
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If X makes a binding covenant during her lifetime to pay money, or transfer property, to Y after her death, it is not testamentary. * But if there’s no intention to be bound until death, it is testamentary. * So the mere fact that death is the occasion for the covenant’s performance, is irrelevant.
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Gillett v Holt
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A promise not contractually binding may raise an estoppel. |
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Donatio mortis causa
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A gift made in contemplation of death from a specific cause, intended to take effect on death, but completed by delivery at the time of the gift. |
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Watts v PT
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Real Property not capable of being the subject of donatio mortis causa |
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Sen v Headley [1991] AllER
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English case saying that RP can be subject of Donationes Mortis Causa, presumably this means australian courts should allow it as the only reason for not allowing in the past has been english refusal to do so. |
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PT v Bussell (1993) NSWLR
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there must delivery of the gifted property to the donee, or delivery of part of the means of getting access to the property, or delivery of what has been termed ‘the essential indicia of title’.
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Hobbes v NSW Trustee & Guardian [2014] NSWSC
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delivery of the certificate of title would have been a delivery of the essential indicium of title but delivery of the keys and rates notice was not.
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Application of M (2000) QSC
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17 yr old never knew his father & had small contact with mother; he inherited from grandmother’s will; court granted him leave to make a will leaving a legacy to his mother (not father) & the residue to his cousins whom he grew up with
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4 Requirements for Testamentory capacity
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Understand nature and effect of making a will, Generally understand the extent of the property being disposed of, Ability to comprehend and appreciate the claims to which the testator ought to give effect e.g. spouse and children, No insane delusions giving effect to departure from such claims
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Insane Delusion
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a belief in something which no rational person could believe in
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Banks v Goodfellow
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violent aversion towards FA’s name BUT no evidence that a delusion influenced the will itself à valid
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Bull v Fulton
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irrational belief that the signatures on wills were false; this had a direct bearing on the will à invalid
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In the Estate of Bohrmann
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If a delusion which impairs testamentary capacity affects part only of the will, that part may be severed, leaving the rest valid
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Woodhead v Perpetual Trustee
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seeing brother (dead) & sister riding (80 yrs old); will left bequest to bro & sis “whom I believe live in Marrickville” à whole will invalid)
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presumption of capacity
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If the will is rational on the face of it, and duly executed
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O’Connell v Shortland
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medical evidence showed that the build-up of drugs D was administered might have caused him to be affected by paranoid delusions à still valid, doubt about capacity is not substantial enough |
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Personal effects
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S101 Tangible personal property except 1. property used exclusively for business 2. banknotes or coins, except if they're a hobyy 3. Property held as a security 4. Gold bullion or uncut diamonds held as a hedge against security that are not household items 5. Interests in land
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Presumptive share
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S101 - Portion of an intestate estate of a deceased eligible relative of the intestate means the entitlement the relative would have had if he or she had survived the intestate.
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Re Plaister (1934) 34 SR (NSW)
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Murder Suicide is an exception to the forfeiture rule because mental illness did not offend public policy because no capacity to form criminal intent
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Halbert v Mynar [1981]
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Deceased disappeared with daughter and was presumed dead under common law rule. Wife died one year later. Court found deceased not presumed dead until 7 years after disappearance, i.e. after wife.
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Re Fenwick & Re Charles [2009]
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Palmer LJ examined new statutory provisions and decided start with fresh slate. Key is S22(b) - reasonably likely to accord with person's wishes. Distinguished between classes - adults with prior testamentary capacity, look first to evidene of actual intention then 'reasonably likely'. With people who never had capacity (i.e. retards) look first at wether they would have made a will if they had TP (low bar, given common experience) then taken entirely objective approach. Minors - would they make a will? Probably yes. Then a pragmatic approach combining subjective and objective factors.
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Astridge v Pepper [1970] |
Knowledge and approval, 99 year old had will read to her but found she was not capable of understanding. Only portionn of will that she gave in the instructions to her solicitors was approved.
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Fulton v Andrew (1875)
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Suspicious circumstances, beneficiaries drafted will. Will read over to testator but no evidence that he could understand and make judgment.
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Wingrove v Wingrove (1886)
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Undue influence requires positive proof that will of testator was overborne by the propounder.
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Hall v Hall (1868)
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Undue influence requires positive coercion, not just emotional blackmail
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Hindson v Weatherill (1854)
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If the solicitor drafts the will, suspicion arises and he has the onus of displacing it.
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Wintle v Nye [1959]
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Testatrix old, no business experience nor independent advice. Soicitor drafted will and T left bulk to him. Suspicious circumstances raised, onus on propounder to displace them - "vigilent and jealous"
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In the Estate of Knibbs [1962]
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T expressed his view of the law at the time to an audience. Because it was not intended to bind audience upon his death it was ineffective as a will.
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Nichols v Nichols (1814)
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T was boasting about how great he was at drawing up wills, demonstrated to an audience. Not a will because no intetion to be bound.
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In the Estate of Meyer [1908]
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Two sisters signed mirror wills but got them mixed up. Held both invalid because no intention to sign document.
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In the Goods of Adams (1872)
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Will written in pencil then done over in Ink. Ink held to be valid, pencil is merely deliberative
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Re Male [1934]
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Incomplete signature held to be valid. Incomplete due to weakness
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Sweetland v Sweetland (1865)
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Failure of T to sign last page of will - held not properly executed despite initials in pencil and every other page signed and witnessed
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Willgoss v Ward (1921)
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Does court have power to exclude a signature at the end of the will
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King's Proctor v Daines (1830)
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If the purported will does not appear testamentary, the onus is the on the propounder to prove that it is.
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Re Bunting [1974] 2 NZLR 219
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A gift to a solicitor is not void because it is witnessed by the solicitor's partner.
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Re Application of Brown: Estate of Springfield (1991)
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T told Brown what he wanted and Brown wrote it down, he went home and copied it onto a will form. When he returned to hospital, T had died. Ct found not a non-compliant will but mere instructions, could not dispense with formalities.
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In the Estate of Masters (1994) 33 NSWLR 446 (para. 4.80)
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Two handwritten documents written by T but unsigned. One given to close friend demonstrates testamentary intention. Other handwritten will found at home of T did not have the gravitas of being entrusted to friend - maybe a draft, who knows?
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Allen v Maddock (1858)
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Where there is reference to a document in a will, that document becomes part of the will. Parole evidence is allowable to ascertain the document.
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Mortenson v State of New South Wales (NSWCA, unrep, 12.12.1991) (para. 3.130)
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T made will leaving everything to in equal shares to three parties. One party died, leaving that share intestate. As no relatives, share would go to the government if not rectified. T had animosity to government. However, because T did not contemplate receiver's predecease her wishes could not be determined beyond mere guess work so no rectification.
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Estate of Gillespie (NSWSC, unrep, 25.10.91) (para. 3.135)
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Identical wills each signed by the wrong person. Recctified!
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In the Goods of Russell (1890) 15 PD 111 (para. 5.35)
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T made will before marriage. Normally revoked upon marriage but court found that power of appoinment in trust funds survived.
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Layer v Burns Philp Trustee Co (1986) 6 NSWLR 60 (para. 5.60)
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T was sick and hastily drew up a will referring to "my wife" and giving her his surname. They had been living together for two years and planned on marrying. Held interpreted as being in contemplation of marriage.
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Re Natush [1963] NZLR 173 (para. 5.70)
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T got engaged to Mrs Ford and wrote 2 wills saying they were made in contemplation of marriage. However, T died before he could marry her. Held - A declaration that a will is made in contempaltion of marriage does not automatically make the will conditional on marriage. Will valid!
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In the Goods of Oswald (1874) LR 3 P and D 162 (para. 5.80)
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Solicitor drafted will with the standard words "last will… revokes all past wills…". T did not read latter will and it was clear from circumstances that he got it wrong and the latter will was merely a codicil to the former. Held - solicitor an idiot, formal revocation language deleted.
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In re Tait [1957] VR 405 (para. 5.85)
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Typist made a mistake and left out two clauses when altering former will. Revocation clauses do not revoke clauses in earlier will where it is clear that this was not intended. |
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Re Mills (1968) 88 WN (pt 2) (NSW) 74 (para. 5.90)
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T made a will leaving cash to four receivers and residual to sister. Three receivers died so T made a second will where he copied from the first, simply leaving out cash bequests to dead receivers. Technical problem with second will so that residual beneficiary could not recieve share. Held, revocation clause does not operate on residual clause in first will - gift effective! |
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Re Luck [1977] WAR 148 (para. 5.95)
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T made two will, first gave everything to sister and was then lost. Second was on a form with a revocation clause, also giving everything to sister but changing executor, wasn't completed. Both wills allowed, revovcation clause omitted
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Cadell v Wilcocks [1898] P 21 (para. 5.100)
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Subsequent wills without a revocation clause are to be read with previous wills where there is no inconsistency. Later will takes precedence if there is inconsistency.
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In the Goods of Fraser (1869) LR 2 P and D 40 (para. 5.120)
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Executed note that revokes former wills but does not dispose of property is effective to revoke but cannot be entered into probate - therefore intestate.
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Cheese v Lovejoy (1877) LR 2 P 251 (para. 5.130)
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T talked about destroying will, left it in wastepaper, kicked it around the room but did not actually destroy it. Held will still valid, need an actual destructive act.
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Re Everest [1975] 2 WLR 333 (para. 5.140)
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Bottom of will torn off, held that remaining text still valid.
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Doe v Perkes (1820) 106 ER 740 (para. 5.135)
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T got angry and started to tear up will. Bystander implored him to stop and held his arms. T stopped and satisfied himself that text was fine. Will held to be valid
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In the Will of Boyd (1959) 59 SR (NSW) 369 (para. 5.145)
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Presumption that a lost will has been destroyed by T. However, can be rebutted if better chance that it was just accidentally lost.
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Guest v Webb [1965] VR 427 (para. 5.150)
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T had a will but wanted to incorporate a letter to specify some gifts. Kept the letter with intention of making amendments. Letter could not be found. Presumption that a lost will has been revoked also applies to incorporated documents.
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Lippe v Hedderwick (1922) 31 CLR 148 (para. 5.25)
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Destruction without the intention to revoke is ineffective.
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In the Estate of Southerden [1925] P 177 (para. 5.165)
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T made a will but then learned that upon intestacy all property would go to his wife. Turns out this wasn't correct and property would go to father instead. Revocation by destruction due to false impression of the law is ineffective, destroyed will stands.
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Re Lindrea [1953] VLR 168 (para. 5.175)
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T made two wills, second had general revocation clause. Second will could not be found. Wife started acting mad so T destroyed second will and told executor of first will that he did so to disinherit wife. Held desire to revoke second will must be solely referrable to desire to reinstate earlier will. Desire to disinherit, though intimately linked, is not sufficient so invalid revocation.
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In the Estate of Niven (1921) 21 SR (NSW) 702 (para. 5.170)
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T made will leaving all to future wife - revoked on marriage. Made a second will including his brother. During a visit, T got annoyed at brother and cut signatures out of that will, intending to cancel it. Approaching death, T told wife, don't worry, I've cancelled second will and first will be revived. Was it simple revocation or dependant relative revocation? The latter requries sole purpose of revocation is the revival of the earlier will. Found additional purpose of depriving brother of benefit so just a simple revocation. NB, if it had been a depedant relative revocation it would have been ineffective because conditon subsequent would not have been possible on previously revoked will.
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Re Jones [1976] 1 Ch 200 (para. 5.180)
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T revoked earlier will when he made intention of making new will. New will never made. Dependant relative revocation not able to prevent revocation of will unless it can be shown that revocation was conditional on new will being made.
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Re Mills (1968) 88 WN (pt 2) (NSW) 74 (para. 5.90)
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T made a will but two beneficiaries died. Copied out will again and left out the relevant paragraphs referring to the pre-deceasers. Second had invalid clauses due to witness technicality so Ct used principle of dependant relative revocation to revive clauses in first will in order to carry out wishes.
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Goods of Sykes (1873) 3 P and D 26 (para. 6.20)
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Name crossed off and replaced. T told depositee that he had done so two years before depositing. There is a presumption that alterations are made after the will was executed. These may be rebutted, including by declarations by T.
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Williams v Ashton (1860) 70 ER 685 (para. 6.25)
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Onus of proving will altered before execution falls on the person who is advantaged by the alteration.
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Goods of Hall (1871) LR 2 P and D 256 (para. 6.30)
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Will altered in pencil, found to be deliberative only. Some signed and some paragraphs marked with "query". Found not to encapsulate intention of T so will enters probate without pencil alterations. NB if subsequent codicil is executed, it gives validity to alterations appearing after execution but before codicil.
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Goods of Itter [1950] P 130 (para. 6.40)
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T pasted slips of paper over her will and initialled them. Ct held that IR photographs of will revealing wording underneath did not make writing underneath apparent. However, apprent requirement does not affect dependant relative revocation so IR photogrpahs can be used in that case.
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Ffinch v Combe [1894] P 191 (para. 6.35)
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You can look closely at alterations to see what they obliterated BUT you can't change the document e.g. by removing strips of paper.
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Republication
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The re-execution of a will so that it operates as the last effective testamentary document. Codicils can republish wills if executed properly and they ackowledge earlier will.
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Re Smith (1890) 45 Ch D 632 (para. 7.15)
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Will made by woman before her marriage. Then wrote codicil giving a single gift to a new legatee. Held - Codicils can republish wills if the inference can be drawn of acknowledgement of the former will. Fact of single gift does not imply acknowledgement of former will.
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Fairweather v Fairweather (1944) 69 CLR 121 (para. 7.20)
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T left house to son. Two years later, sold house to son. After that T made codicil acknowledging former will but did not delete house clause. Codicils only republish so much of the will as it appears at the date of the codicil or is possible through cicumstances.
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Dowsett v Meakins
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T cannot give away property which they sold before their death, gift fails.
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Re Lowman
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If T contracts to sell property but not completed, the person who was to receive the property under the will gets the benefit of the sale.
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Revival
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Revival operates to reinstate revoked wills. The revoked will becomes operational on the day of revival. Must be done in accordance with S15. If revoked will was partially revoked and then the balance revoked, absent contrary intention, only the later revoked part is revived.
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Rogers v Goodenough (1862) 164 ER 1028 (para. 7.45)
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T made will in 1858 then a second in 1859 and destroyed 1858 will. Then wrote codicil referring to 1858 will. Held - wills destroyed with revocatory intention cannot be revived.
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In the Goods of Steele (1862) 1 P and D 575 (para. 7.50)
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CF republication, revival needs to be fairly clear on the face of the reviving document. No parol evidence in this case. Problem was that codicil gave date of previous will referred to "last will and testament" . Because of ambiguity, latter will was upheld
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In the Estate of Horne (1920) 20 SR (NSW) 531 (para. 7.55)
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T made entire will in 1911 naming X1, made a second will in 1913 naming X2. in 1923 made codicil, changing X1 to X3. Held first will revived because clearly had first will in mind.
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Executor gets probate and distributes and pays expenses but then later will is discovered and they are no longer the executor…
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If in good faith, entitled to reimbursement and indemnification b/c later executor would have had to do those things anyway.
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Contract for sale of land and purchaser dies…
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Assuming no clause nullifying contract, Vedor will serve notice to complete on NSW Trustee and guardian b/c property vests in them until grant of probate.
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Construction Suit
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Hearing to determine the meaning of the words in the will.
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In the Estate of Brian [1974] 2 NSWLR 231 (para. 7.65)
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Oral and extrinsic evidence are admissible for the purpose of constructing the testator's intention.
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Exemplification
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Different wills dispose of assets in different jurisdictions, apply for probate in different jurisdictions for the same will - re-examplication
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Re-exemplification denied if…
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Say there's a NSW will and a Victorian will. Vic will disposes of house in Vic. Willl not be given re-exemplification in NSW because doesn't dispose of property in NSW. If no valid will in NSW, intestacy over NSW assets
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In the Goods of Morton (1864) 164 ER 1338 (para. 8.55)
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Will tried to appoint a guardian only - held invalid because it did not dispose of property. Acts as an indication of intention only that the guardianship tribunal can take into account.
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In re Carlton [1924] VLR 237 (para. 8.50)
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Same principles of re-exemplification apply to foreign countries.
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In the Goods of Tamplin [1897] P 39 (para. 8.60)
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Re-exemplification denied if no property disposed of in re-exemplification jurisdiction.
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New York Breweries v A-G [1899] AC 62 (para. 8.70)
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Foreign representation order is ineffective to deal with any assets in NSW.
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Boyd v Leslie [1964] VR 728 (para. 8.140)
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Court has no jurisdiction over assets which are subject only to a foreign grant. Until you get a grant in NSW, you can't deal with the assets in NSW.
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What if executor doesn't want to take the grant of probate?
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Court grants letters of administration with the will annexed to an appointed administrator.
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Executor de son tort
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Person dealing with property without authority - can't even change locks and are personally liable for all their acts. If the EDST is subsequently made executor, then everything is retrospectively fine.
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If T disappears and there is presumption of death after 7 years BUT then T reappears…
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Grant of probate is revoked but administrator is protected against claims by T provided they acted in good faith. Beneficiaries may have to return property if it can be traced.
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Liability of executor as trustee if there's real property
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Don't protect the property e.g. insure, get injunction to prevent unauthorised taking
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Andrews v Hogan (1952) 86 CLR 223 (para. 9.20)
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Vendor can issue a notice to complete on entity in which property vests.
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Oxford Meat Co v McDonald (1963) 63 SR (NSW) 423 (para. 9.25)
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We need a chain of title in goods so deceased assets can be dealt with if need be.
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Re Birch (1951) 51 SR (NSW) 345 (para. 9.35)
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Ex De Son Tort has no estate or interest in land so can't deal with it.
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Cash v Nominal Defendant (1969) 90 WN (pt 1) (NSW) 77 (para. 9.40)
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Ex de son tort extends to situation in which someone has grant in victoria but tries to dispose of property in NSW.
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Will of Colless (1941) 41 SR (NSW) 133 (para. 10.45)
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Once you have announced to the world that you intend to become the executor, you are still entitled to renounce the role. Once you are granted the executor role, you can't renounce it.
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When can trustees resign?
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Whenever they want.
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Can a bankrupt be an executor?
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It depends on the circustances, must be revealed in affidavit. E.g. tax evasion, no but guarantor of a company that went tits up probably okay.
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What happens if executor breaches undertaking to the court?
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Easiest way to get executor removed. E.g. motion to file accounts > executor doesn't do it > removed for breach.
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Bath v British and Malayan Trustees (1969) 90 WN (pt 1) (NSW) 44 (para. 10.55)
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Who should be the administrator, if unclear? Bath sets out the factors court will look at… generally the most practical person, knowledge of estate, proximity to assets. Court has discretion.
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In the Will of Sands (1944) 44 SR (NSW) 281 (para. 10.60)
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S61 doesn't prevent an emergency executor with limited powers from being appointed to perform limited acts. E.g. Protect assets from being shipped away.
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Bates v Messner (1967) 67 SR (NSW) 187 (para. 10.75)
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Where people breach orders or undertakings, the grant can be revoked. Or if executors are useless or proper administration has not been undertaken, the court has inherent jurisdiction to remove them.
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Re Devoy [1943] St R Qd 137 (para. 10.40)
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For someone to have standing in a probate suit, they must have some interest in it. E.g. If will disallowed they would benefit under instestacy.
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Re N [1950] VLR 139 (para. 10.70)
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Court can omit parts of wills that are defamatory, outrageous, blasphemous or otherwise offensive.
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Bailey v Bailey (1924) 34 CLR 558 (para. 10.85)
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1. Onus is on the propounder 2. Onus continues throughout case 3. Onus discharged first by establishing prima facie case 4. Prima facie case established by propounder's testimony. 5. Old people are okay to make testament so long as mind is keen enough 6. Quantum of evidence required differs in each case 7. Look at rationality and simplicity of will; exclusion of natural beneficiaries; Infirmity of T; Benefit to the drafter 8. Once prima facie case established, onus falls on impeacher to displace 9. Serious illness is not enough, must be coupled with sufficient undue influence 10. Most witnesses as to capacity are given little weight 11. Ct must judge from stated facts rather than opinions as to capacity 12. The date of instructions is the date requiring capacity.
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Tyrrell v Painton [1894] P 151 (para. 10.90)
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Where there is suspicious circumstances you are really dealing with knowledge and approval. Where there are capacity issues, you must raise a doubt about it then onus falls to propounder. Undue influence also means no knowledge and approval.
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Who gets the body?
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The person with the highest right to administration so 1. Executor 2. Spouse 3. Children. What if there's two separated parents? Generally the most practical.
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Williams and Williams (1882) 20 Ch D 659 (para. 11.30)
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Superceded by Smith v Tamworth City Council - who got the right to say what was on the headstone. Young J laid down who has carriage of the body.
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AB v CD
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Which parent has the right to the body if two are separated and fighting. Generally most practical e.g. the one who had custody. Ultimately child exhumed.
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Privett v Verboke
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Who is entitled to the body when there is a question about capacity? Look at all factors e.g. next of kin, practicality etc.
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Who can require accounts?
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People with standing, in most cases people entitled to the residue. If given a definite gift e.g. a car, then no interest. People without legal capacity can't request accounts because no capacity (but can if they are represented by a tutor). Can't apply after laches.
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Commission calculation factors?
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Are you a beneficiary? If yes, then probably no comission. If no interest 2.2-3.3% for time and trouble. If there is income or expenditure, 4-7%. Courts look at hassle factor. |
