2024-04-20 00:58
In British Columbia, section 37(1) of the Wills Estates and Successions Act provides a valid will must be:
in writing;
signed at the end by the will-maker (or the signature a… Read More
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Read this before you die to find out about what happens after you die
2024-04-18 07:47
In litigation, the process known as ‘Discovery’ requires the parties to provide each other with every document relevant to the case based on the pleadings; a party cannot refuse… Read More
2024-04-14 05:57
It is possible to revoke a grant of probate in common form, while a grant of probate in solemn form is usually irrevocable, except for limited exceptions. Although an unopposed application i… Read More
2024-04-10 02:54
In Victoria the Wills Act 1997 (Vic) provides the legal requirements for a valid Will. Under s7 of the Act, a Will must be in writing and signed by the testator in the presence of two or mor… Read More
2024-04-01 05:06
As suburban Cairns encroached upon the Mann family’s cane farm at Mill Road, Edmonton (the farm) it drew attention from state and local government for acquisition. The Queensland Gover… Read More
2024-03-19 08:45
Legal capacity refers to the ability of a person to make legal decisions, such as signing a contract, making a will, or participating in litigation. To have legal capacity, a person should c… Read More
2024-03-14 05:57
If the Court is satisfied that the person seeking a family provision order is eligible and has not received provision for the proper maintenance, education, or advancement in life by the dec… Read More
2024-03-10 09:53
A declaratory judgment is a statement a court makes to resolve a legal issue without coercion. Unlike court orders, declaratory judgments are not coercive in nature. However, if a party refu… Read More
2024-03-05 01:14
Family provision claims are legal challenges that question the fairness of a Will. An individual eligible to make a claim may believe they have been treated unfairly or unjustly by being lef… Read More
2024-03-01 03:44
Mutual wills are sometimes mistaken for mirror wills that married couples commonly create. The distinction between the two is that the doctrine of mutual wills requires both parties to enter… Read More
2024-02-28 20:32
In NSW s66G of the Conveyancing Act 1919 titled ‘Statutory trusts of property held in co-ownership’. It is a legal tool for resolving co-ownership disputes by application to the… Read More
2024-02-26 03:29
In Western Australia s 7(1) of the Family Provision Act 1972 provides a list of individuals who are eligible to apply for family provision under s 6(1) of the Act. One of the qualified appli… Read More
2024-02-21 05:38
As a superannuation fund member, you can transfer some or all of your current superannuation between super funds, including self-managed superannuation funds (SMSFs). This process is known a… Read More
2024-02-19 08:59
A court may consider a family provision order if an eligible person is challenging a Will because it did not adequately provide for their maintenance, education, or advancement in life.
T… Read More
2024-02-08 21:48
An international treaty called the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), adopted by the United Nations General Assembly in 1979 and considered a… Read More
2024-01-25 09:42
The people of New South Wales (NSW), have had access to voluntary assisted dying as an end-of-life care option under the Voluntary Assisted Dying Act 2022 from the 28th of November 2023… Read More
2024-01-21 22:33
The South Australian Parliament passed legislation to consolidate and modernise all succession law in South Australia under the Succession Act 2023 (SA) on 18 October 2023, with the Act rece… Read More
2024-01-21 01:43
The freedom of testation is a general principle of succession law, meaning you can leave your estate to whomever you wish. However, this can be unfair and unjust, especially when a spouse or… Read More
2024-01-11 01:19
The Commonwealth Parliament implemented the resale royalty right for visual artists in Australia on June 9th, 2010. This system offers an additional income source for visual artists and thei… Read More
2024-01-07 10:15
Stone v Kramer [2021] NSWSC 1456 concerned the ownership of a rural Colo Property. David Lindsay Stone (the Plaintiff) filed a statement of claim against the defendants, Hilary Lorraine Kram… Read More
2023-12-31 01:52
A guardian appointed by NCAT is authorised to make lifestyle and personal decisions for the person under guardianship, including where to live, what services to use, and consent to medical a… Read More
2023-12-29 01:11
The “lapse rule” refers to the general rule that when a Will contains a gift to an entity that no longer exists at the time of the testator’s death, the gift will become vo… Read More
2023-12-28 01:03
The Administration and Probate Act 1958 (Vic) permits the Court to provide for an eligible person from a deceased estate for proper maintenance and support. In 2014, parliament amended the A… Read More
2023-12-27 03:02
The Tolkien Estate is the legal body that manages the copyright for most of J. R. R. Tolkien’s works. The estate has assigned the individual copyrights to the Trust. The Tolkien Trust… Read More
2023-12-23 21:41
The Succession Act 2006 allows the Court to designate an asset not currently part of the deceased estate as “notionally” part of the deceased estate. For property eligi… Read More
2023-12-21 03:50
It is well-established in law that an executor cannot compel an individual to accept a gift of property against their wishes. A beneficiary under a will or intestacy can refuse or renounce a… Read More
2023-12-18 23:31
The applicant is the daughter of Janita Sullivan (the deceased ), who died on 16 November 2021. The deceased had lived on a small acreage property at South Nanango, purchased in 2019 (the pr… Read More
2023-12-15 05:22
“Limited grants of administration” refers to a specific type of legal authority given to someone to manage the assets and affairs of a deceased person’s estate. Unlike a fu… Read More
2023-12-14 06:13
In 1973, singer-songwriter Marvin Gaye reached number one on the Billboard Pop Singles chart with his new R&B hit for Motown Records, “Let’s Get It On.” Cowritten w… Read More
2023-12-13 22:34
If a person is criminally responsible for the death of another, and that death is a material fact in the vesting of property in favour of that person, the interest in that property is forfei… Read More
2023-12-10 09:20
In Soulos v Pagones; Soulos v Soulos; Soulos v Soulos; Soulos v Pagones; Kristallis v Soulos; Kristallis v Soulos; Kristallis v Pagones [2023] NSWCA 243, the New South Wales Court of Appeal… Read More
2023-12-09 06:51
Embarking on a legal odyssey spanning several years, Rita Rea found herself in a contentious dispute over her late mother’s will. The case recently took a fascinating turn with the ret… Read More
2023-12-08 07:33
In Re Chambers (dec’d) [2023] QSC 230, Cherie Gayle Johnson (The applicant) applied for letters of administration of a document that purports to be the will of Kevin John Chambers (th… Read More
2023-12-02 08:31
Val Taylor, a retired nursery manager died aged 72 in Burnley last February. Born an only child to parents who had no siblings, Taylor had no known relatives and no one was able to locate he… Read More
2023-11-24 10:37
In Keates v Martin and Martin [2023] TASSC 31 Dennis Keates (the plaintiff) sought a grant of probate of a will made by his late wife Paula Catherine Keates (the deceased) on 28 July 1995… Read More
2023-11-23 06:42
The Forfeiture Rule is a common law rule that prevents a person who has unlawfully killed another person from inheriting from the victim’s estate or obtaining another financial be… Read More
2023-11-17 06:52
In Re Rentis Pty Ltd [2023] QSC 252, the applicant was the corporate trustee for the Robert Stannett Superannuation Fund. It seeks a declaration as to the validity of binding death benefit n… Read More
2023-11-13 11:15
The test for determining testamentary capacity is spelled out in Banks v Goodfellow (1870) 5 QB 549 by Cockburn CJ and involves an assessment of whether the testator:
(a) underst… Read More
2023-11-09 02:44
Section 232 of the Corporations Act 2011 (Cth) defines oppressive conduct as conduct that is contrary to the interests of the shareholders as a whole. Contained within ss 232 and 233 of the… Read More
2023-10-22 22:38
A will, part of a will, or a testamentary gift procured by undue influence may be set aside by the courts and not admitted to probate if the party alleging it proves undue influence as a mat… Read More
2023-10-08 06:49
In South Australia where a document does not meet the formalities required under the Wills Act 1936 (the Act) but the Court is satisfied that it expresses the testamentary intentions of the… Read More
2023-09-29 11:51
A trustee may seek an opinion, advice or direction from the Court if it is in doubt concerning a particular course of action it proposes to take.
Section 63(1) of the Trustee Act 19… Read More
2023-09-18 01:21
Section 6(1) of the Succession Act 2006 (the Act) provides that 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 a… Read More
2023-09-04 01:28
In Victoria s 13(1) of the Wills Act 1997 provides that marriage revokes a will unless the will is made in contemplation of the marriage.
Section 23B(1)(d)(iii) of the Marriage Act 1961 (… Read More
2023-08-29 03:35
When applying for a grant of probate in Queensland the executor must submit a ‘Notice of Intended Application’ to the Queensland Law Reporter and wait at least 14 days following… Read More
2023-08-26 12:18
In Thynne v Sheringham [2023] NSWCA 181 Harry Thynne ( the applicant) sought leave to appeal from an interlocutory judgment requiring that a caveat he lodged over the title to a real propert… Read More
2023-08-11 22:51
The word ademption derives from the Latin noun ademptio, meaning a taking away. The concept of ademptio was known in the Roman law of succession. An intention to adeem is presumed in equity… Read More
2023-08-07 00:29
In Thompson v Sutherland [2023] WASC 206 an application seeking advice as to the proper interpretation of a provision drafted in a homemade will Master Sanderson states:
These reasons co… Read More
2023-08-02 04:58
Application of Higgins [2023] NSWSC 689 concerns the administration of the estate of Sheree Jane Higgins (“the deceased”), an Indigenous person, and the claim brought by her moth… Read More
2023-07-17 12:18
Aretha Franklin described as The Queen of Soul, won 18 Grammy Awards and had more than 100 singles on the Billboard charts; at the time of her death, of pancreatic cancer aged 76 on Aug. 16… Read More
2023-07-15 11:21
Pablo Picasso died in April of 1973 at the age of 91 with an estate including assets estimated to be valued somewhere between $100 million and $260 million. Surprisingly he left no Will, and… Read More
2023-07-02 04:37
The Briginshaw principle is derived from obiter remarks of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336; To be reasonably satisfied of a matter the Court may be affected by t… Read More
2023-06-25 01:17
In New South Wales where an executor named in the Will has neglected or refused to prove the Will (or to renounce probate) within three months from the date of death a person with an interes… Read More
2023-06-06 10:44
An application for special administration ad colligenda bona defuncti, is made to protect the estate, or particular estate assets, where the delay in obtaining a normal grant will endanger t… Read More
2023-05-30 06:47
An informal will is a document that expresses the testamentary intentions of its maker but does not meet the requirements of s6 of the Succession Act 2006 (NSW).
An application may… Read More
2023-05-25 08:27
Section 56(3) of the Civil Procedure Act 2005 (NSW) provides that a party to civil proceedings is under a duty to assist the Court to further the overriding purpose and, to t… Read More
2023-05-14 03:48
In most cases an executor propounding a will pleads that at the time of execution the deceased had testamentary capacity. However, if a testator has lost capacity by the time the will is exe… Read More
2023-04-08 03:56
On 12 May 2020, the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (the Regulations) came into force in Victoria. The Regulations allowed for the… Read More
2023-04-01 23:57
The principle behind mesne profits is that a trespasser must compensate the landowner for the use of their land. Importantly the landowner does not need to have suffered any loss with mesne… Read More
2023-03-26 00:27
Letters of administration durante absentia (during the absence from the jurisdiction of an executor or other person entitled to a grant) may be made under s 76 of the Probate and Administrat… Read More
2023-03-13 11:30
If a person has been missing for at least seven years, a court may declare that the person is presumed to be dead. Owen Dixon J summarised the common law principles to be applied when a pers… Read More
2023-03-09 06:40
Section 10A of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act), provides that the following factors must be met for two people to be in an interdependency relationship:… Read More
2023-02-27 23:54
Kenneth Talbot (“the deceased”) left a Will dated 29 November 2002 (“the 2002 Will”) prepared by a solicitor, William Boyd (Boyd). The deceased, either individually… Read More
2023-02-22 21:11
Limited grants of administration are designed to accommodate specific circumstances arising in an estate where it is not possible to obtain a full grant of administration or probate. Unlike… Read More
2023-02-13 23:53
A grant of administration ad litem provides for the management of legal proceedings on behalf of an estate; enabling the estate to bring or defend legal proceedings. A grant ad litem is nece… Read More
2023-02-07 01:25
Where a Will is lost the executor has to consider whether the deceased intended to revoke the will by destroying it or to apply for a Grant of Probate of a copy of the will supported by an a… Read More
2023-02-06 00:02
The NSW Supreme Court can make a family provision order under Ch 3, of the Succession Act, concerning the estate or notional estate of a deceased person, to provide from that estate for the… Read More
2023-01-30 00:44
In New South Wales s40A(1) of the Probate and Administration Act 1898 (NSW) provides that if the Court is satisfied by direct evidence or on the presumption of death, that a person is dead i… Read More
2023-01-23 05:32
Where a party acts on “an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by t… Read More
2023-01-16 06:12
“Darkness and suspicion are common features in will cases: the truth too often is the secret of the dead or the dishonest. Because it is often difficult, and sometimes impossible, to… Read More
2023-01-07 04:17
Mutual wills refer to contracts not to revoke a will after the death or incapacity of the other contracting party. Usually, a couple makes an agreement that whoever is the last to die their… Read More
2022-12-28 05:20
In Tasmania, a testators spouse is eligible to bring an application for further provision from an estate if at the testator’s death they have been
“left without adequate prov… Read More
2022-12-22 23:23
The New Zealand Care of Children Act 2004 provides for the promotion of the welfare and best interests of children by regulating the duties and responsibilities of parents and the court&rsqu&hell…Read More
2022-12-20 10:09
The Court awards a successful party in litigation the “usual order as to costs” which includes the costs incurred preparing for litigation with the unsuccessful party paying the… Read More
2022-12-15 02:55
Sir Isaac Isaacs came from humble beginnings with few material advantages, he made a lasting contribution to Australia through application and hard work and seizing every opportunity made av… Read More
2022-12-09 00:54
The self-dealing rule prevents trustees and executors from “dealing” with trust or estate property; including purchasing property from the trust or estate. The self-dealing rule… Read More
2022-12-03 04:44
The Marriage Act 1961 and Marriage Regulations 2017 provide the rules for getting married in Australia. Section 42 of the Marriage Act provides a person must:
not be married
not be mar… Read More
2022-11-26 18:41
In Tasmania, a statutory will can be made by the Supreme Court of Tasmania or by the Tasmanian Civil and Administrative Tribunal, Guardianship stream (Tribunal ) where a person lacks capacit… Read More
2022-11-23 00:22
John Hyde was ordained as a priest of the Mormon Church in 1847 he was married in Salt Lake City in April 1853, but later became disillusioned with the Church and was excommunicated for writ… Read More
2022-11-17 10:48
Limitation periods protect the rights of defendants by facilitating a resolution within a ‘reasonable’ amount of time. Importantly they prevent the Court from having to preside o… Read More
2022-11-16 02:22
In the United Kingdom when a person dies intestate the Administration of Estates Act 1925, prioritises and creates a hierarchy of beneficiaries who will inherit the estate.
Similarly, the… Read More
2022-11-10 22:08
In Bosanac v Commissioner of Taxation [2022] HCA 34 the High Court of Australia examined the equitable presumptions of resulting trust and advancement.
A declaration of trust may be presu… Read More
2022-11-07 07:48
In Queensland s 33(1) of the Succession Act 1981 provides that the court may make an order to rectify a will if it is satisfied that the document does not carry out the testator’s inte… Read More
2022-11-05 02:54
In New Zealand the Family Protection Act 1955 allows children to make claims against their parent’s estate. If proper provision is not made the following people can claim provision out… Read More
2022-11-03 21:11
Executors are responsible for administering the deceased’s estate in line with the terms of the will. They have a fiduciary relationship with the estate and are legally bound to act in… Read More
2022-11-02 06:37
In most instances where two or more people take an interest in land, they must register whether they hold as joint tenants or tenants in common. Additionally, if they register as tenants in… Read More
2022-10-28 10:15
Melville William Gooley (“the deceased”) died on 23 December 2017 aged 92 years, leaving a will dated 1 February 2010 probate of which was granted to the defendant, his son and t… Read More
2022-10-25 21:01
In NSW, for wills made after 1 March 2008, s32 of the Succession Act 2006 provides that in proceedings to construe a will extrinsic evidence of the will-maker’s intention is admissible… Read More
2022-10-23 06:17
In South Australia, where a will last known to be held by a testator before their death, cannot be found the Supreme Court presumes that the testator intended to revoke the will.
If the… Read More
2022-10-20 09:31
In Australia, an Amicus curiae ‘friend of the court’: – is usually a barrister, who, at the court’s discretion, advises the court, offering information, expertise, or… Read More
2022-10-17 11:36
Sections 65 and 67 of the Administration and Probate Act 1919 (SA) concern the interests of vulnerable beneficiaries of administered estates who lack capacity.
Under s 65 the court seeks… Read More
2022-10-14 22:33
Section 102 of the Succession Act 2006 (NSW) provides that an intestate is a person who dies, and either does not leave a will, or leaves a will, but does not dispose, effectively, by will… Read More
2022-10-14 22:33
Section 102 of the Succession Act 2006 (NSW) provides that an intestate is a person who dies, and either does not leave a will, or leaves a will, but does not dispose, effectively, by will… Read More
2022-10-11 00:57
Neville Maxwell (the deceased), was survived by his wife, their three adult children and two grandsons.
The deceased’s last Will appointed two of his children executors and trustee… Read More
2022-10-10 00:17
Bona vacantia is the Crown’s statutory right to the property of an intestate when no relatives are entitled to it. In most jurisdictions when the intestate is not survived by a spouse… Read More
2022-10-09 05:02
An executor of an estate must have legal capacity. Rule 5.03 of the Supreme Court (Administration and Probate) Rules 2015 empowers the Court to grant letters of administration durante minore… Read More
2022-09-25 07:27
In New South Wales, the Surrogacy Act 2010 provides that a surrogacy arrangement must not be commercial and payment may only be made to cover the expenses related to the pregnancy: s 5. The… Read More
2022-07-15 02:03
The NSW Court of Appeal has dismissed an appeal bought following an action for family provision in Daley v Donaldson [2021] NSWSC 1507.
Background
A court may make a family provision o… Read More
2022-06-11 22:54
An administrator is responsible for the proper distribution of the estates assets to creditors or beneficiaries. The creditors must be paid in priority to the beneficiaries. If the administr… Read More
2022-05-27 09:10
Following the passage of the Voluntary Assisted Dying Bill 2022 (NSW), New South Wales became the last jurisdiction in Australia to provide terminally ill adults with the ability to choose t… Read More
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