Principles of Australian succession law

Full Title
Copyright
Preface
Acknowledgments
Table of Cases
Table of Statutes
References
Table of Contents
	1. Introduction
		Meaning and scope of the law of succession
			Meaning of succession law
			Terminology in succession law
			Probate and administration
			Courts of construction
		Historical basis
			General
			Succession to personalty
			Succession to realty
			Jurisdiction in succession matters
			Subsequent developments
		Freedom of testation
			Succession and property
			The family and succession
		Other matters
			Indigenous perspectives
			Comparative succession law
			Conflict of laws
			Uniform succession laws
			The future
	2. The General Nature of a Will
		Definition and characteristics of a will
			Definition
			Declaration of intention
			Revocability
			Takes effect only on death
			Ambulatory in nature
			Not limited to property
			Prescribed form
			Unitary in nature
		Wills distinguished from other transactions and relationships
			Introduction
			Settlements inter vivos
			Life insurance policies: nominations
			Pension and superannuation nominations
			Joint tenancies
			Joint banking accounts
			Donatio mortis causa
			Donatio mortis causa: in contemplation of death
			Donatio mortis causa: conditional on death
			Donatio mortis causa: parting with dominion — delivery
			Property the subject of a valid donatio
		Contracts relating to wills
			Introduction
			Contracts to leave legacy
			Contracts to leave specific property
			Contracts to leave ‘all property’/residue
			Contracts not to revoke or alter wills
			Contracts and family provision claims
			Formalities and enforceability of testamentary contracts
		Mutual and joint wills
			Mutual wills: introduction
			Proof of agreement and other essential elements
			Marriage and mutual wills
			Joint wills
	3. Making a Will — the Mental Elements
		Introduction
		Age
		Mental capacity: sound mind, memory and understanding
			Introduction
			Test of mental capacity
			Lucid intervals
			Proof of incapacity
			Time for satisfying test of mental capacity
		Testamentary intention
			General principle
			Conditional intention
		Knowledge and approval
			General
			Reading over the will
			Summary
		Suspicious circumstances
			General
			Will prepared by beneficiary
			Other suspicious circumstances
			Severance
			‘Suspicious circumstances’ differ from undue influence and fraud
		Undue influence
			The test
			No presumption of undue influence
			Onus of proof
			Standard of proof
			Consequence of undue influence
			Difficulty of proof in undue influence cases
		Fraud
			The problem
			The principle
			Other cases of fraud
		Mistake and statutory rectification of wills
			Introduction
			Mistake as to legal effect of words used
			Error of fact: power to omit words
			Examples of courts’ jurisdiction
			Limits on Probate Courts’ jurisdiction
			No jurisdiction to insert words
			Statutory rectification powers
			Problem of ‘mirror wills’: execution of wrong wills
			Relationships between statutory rectification powers and general principles of construction
			Time limits and extensions of time for applications
	4. Statutory Wills: Wills for Persons Who Lack Testamentary Capacity
		Background
			Reasons for statutory wills
			Procedure: applicants
			Procedure: two-stage process
		Statutory conditions for exercise of power
			General
			Condition one: lack of testamentary capacity
			Condition two: the proposed will, alteration or revocation is one or might be one that would have been made by the proposed testator if the person was not lacking testamentary capacity
			Condition three: it is reasonable in all the circumstances (or appropriate) that an order should be made
			Time statutory will has effect
			Costs
	5. Making a Will — the Formal Requirements
		Introduction
			Need for formalities
		Formalities
			Writing
			Requirement of a ‘signature’
			Position of the signature
			Signing or acknowledgment of signature in presence of two witnesses
			Presence of two witnesses
			Meaning of attestation and subscription
			In presence of testator
			Attestation clauses and presumption of due execution
			Summary
		Judicial dispensing powers
			Informal wills
			General approach to the legislation
			Use of previous authorities
			Scope of the dispensing power
			Legal criteria
			Definition of document
			Document must purport to record the testamentary intention of the deceased
			Testator intended the document, without more, to operate immediately as a will
			General considerations applicable to third requirement
			Timing of intention
			Admissibility of evidence
			Burden of proof
		Disqualification of witnesses
			The rule
			Construction of rule
			More than two witnesses
			Current position in New South Wales, Queensland, Tasmania and the Northern Territory
			Disqualification of interpreters in Queensland
		Incorporation by reference
			Introduction
			Existence of document at date of execution of will
			Document referred to as already in existence
			Document identified in will
			Use of incorporation
		Privileged wills
			Introduction
			Who is a privileged testator?
			Rationale
		International wills
	6. Revocation and Alteration of Wills
		Introduction
		Revocation by another will or codicil
			Express revocation by another will or codicil
			Implied revocation by another will or codicil
		Revocation by writing declaring intention to revoke
		Revocation by actual destruction
			General
			The act
			The intention
			Revocation by dealing with a will: New South Wales, Victoria, Queensland, Tasmania and the Northern Territory
			Missing wills: presumption of destruction
		Dependent relative revocation
			General
			Examples of dependent relative revocation
		Revocation by marriage
		Wills in contemplation of marriage
			General
			Prior legislation
			Current law
			Wills revoked by marriage: exception relating to powers of appointment and executors and trustees
		Revocation by termination of marriage
			General
			Statutory provisions
		Alterations, interlineations and obliterations: amendment of wills
			General
			Alteration made before execution of will
			Alteration duly executed
			Obliterations: part of will not apparent
			Effect of amendment
	7. Republication and Revival
		Republication
			General
			Intention to republish
			General effect of republication
			Change of persons
			Changes in property
			Other effects of republication
			Some limits on republication
		Revival
			General
			Intention to revive
			Effect of revival
	8. Construction of Wills
		Introduction
			The problem
			Courts of probate and courts of construction
			Rules of construction
		General principles of construction
			Expressed intention of the testator
			Will as a whole to be construed
			Usual or ordinary meaning rule
			Secondary meanings: dictionary principle
			Secondary meanings: surrounding circumstances
			Words with more than one usual meaning
			Technical words and phrases
			Custom
			Omissions
			Undesigned insertions: ignoring words
			Changing and transposing words
		Subsidiary principles of construction
			General
			Golden rule: avoidance of intestacy
			The principle: ‘ut res magis valeat quam pereat’
			The principle: ‘falsa demonstratio non nocet, cum de corpore constat’
			Ejusdem generis
			Inconsistency and conflict: ambiguous words do not control a clear gift
			Inconsistency and conflict: rule of despair
			Inconsistency and conflict: rule in Lassence v Tierney
		Admissibility of extrinsic evidence in construing a will
			General
			Admissibility of extrinsic evidence at common law
			Armchair principle
			Evidence of intention: equivocations
			Statutory modification
			Court unable to ascertain meaning
		Gifts to persons
			General
			Person to be ascertained at date of will
			Relationships
			Legitimacy, adoption, artificial conception and children generally
			Spouses
			Transgender persons
			Class gifts
		Gifts of property
			General
			Will speaks from death as to property
			Types of gifts
			Specific statutory rules relating to gifts of property
	9. Gifts by Will
		Introduction
			Types of gifts
			Specific devises and legacies
			General legacies
			Demonstrative legacies
			Pecuniary legacies
			Residuary devises and legacies
		Doctrine of ademption
			General
			Applies only to specific gifts
			Changes in nature of gift
			Ademption not by testator
			Ademption not by testator — specific statutory provisions
			Contracts and options
			Effect of s 24 of Wills Act (UK) and Australian equivalents
		Doctrine of lapse
			General
			Substitutional clauses
			Common law exceptions to doctrine: obligations
			Common law exceptions to doctrine: charities
			Statutory prevention
			Statutory substitution to issue
			Class gifts and joint tenancies
		Disclaimer
		Forfeiture for killing
			General
			Effect of forfeiture
			Statutory modification in New South Wales and Australian Capital Territory
		Equitable doctrine of satisfaction
			General
			Satisfaction of commercial debts by legacies
			Satisfaction of portion debts by legacies
			Satisfaction of legacies by portions (sometimes called equitable ademption)
			Satisfaction of legacies by legacies
		Equitable doctrine of election
			General
			Example
	10. Distribution on Intestacy
		Definition of intestacy
			General
			Entitlement on intestacy
		Entitlement of surviving spouses
			Definition of ‘spouse’
			General disposition to surviving spouse
			Surviving spouse with no issue of the intestate
			Surviving spouse and issue of the intestate
			Election by surviving spouse with respect to matrimonial home
		Entitlement of issue
			General
			Definition of ‘issue’
			Entitlement of issue
		Others entitled
			Parents: surviving parent(s) but no surviving spouse or issue
			Surviving parent(s) and surviving spouse
			Next of kin
			The Crown
		Doctrine of hotchpot
		Indigenous persons’ estates
			General
			Dedicated intestacy rules: New South Wales, Northern Territory and Tasmania
			Queensland and Western Australia
		Patterns of distribution: jurisdiction by jurisdiction
			General
			Australian Capital Territory
			New South Wales and Tasmania
			Northern Territory
			Queensland
			South Australia
			Victoria
			Western Australia
	11. Family Provision
		Introduction
		Applicants: persons eligible to apply
			Spouses
			De facto spouses, partners, same sex relationships
			Children
			Dependency: New South Wales and Queensland
			Others — including the previous Victorian position
		Time limits for application
			General
			Extensions of time
		Criteria in determining entitlement
			Twin tasks
			General approach to claims
			Specific factors
			Time for ascertaining adequacy and propriety
		Disentitlement: character and conduct of the applicant
			General
			Time for ascertaining character and conduct
			Partial disentitlement
			Statements made by testator
		Property out of which order may be made
			General
			Donatio mortis causa
			Joint banking accounts
			Joint tenancies of real estate
			Property distributed in administration
			Property subject to contract: testamentary promises
			New South Wales: notional estate
		Types of relief: orders
			Types of orders
			Variation of orders
			Burden of provision of orders
		Contracting out of the legislation
			General
			Agreements under the Family Law Act 1975 (Cth)
			New South Wales: Succession Act 2006 s 95
	12. Personal Representatives
		Introduction
		Appointment of executors
			Introduction
			Identification of the executor
			Testator’s delegation of appointment of executor
			Ambiguity as to identity of executor
			Appointment of an office-holder
			Appointment of partners in a partnership
			Substitutional appointments
			Limited appointments of executors
			Implied appointment of executor: executors according to the tenor
		Capacity to act as executor
			Inherent jurisdiction of the court: passing over the executor
			Minors
			Mentally or physically disabled persons
			Persons with criminal records
			Corporations
			Bankrupts and insolvent persons
		Assumption and renunciation of office
			Assumption of office by executors
			Executor de son tort
			Transmission of executor’s office: chain of representation
			Renunciation of office by executor
		Administrators
			Appointment of administrators
			Jurisdiction of the court
			Grants of administration with the will annexed
			Grant of general administration
			Grants of administration to strangers
		Retirement and removal of personal representatives
	13. Grants of Representation
		Introduction
			Grants of representation and the vesting of property
			Form and types of grant
		Proving the death
		Limited grants
			Overview of limited grants
			Grant of representation with respect to unadministered estate
			Grant of administration during the minority of the appointed executor
			Grant of administration durante absentia
			Grant during incapacity of entitled person
			Grant of administration pending suit
			Grant of administration ‘for the purposes of the suit’
		Miscellaneous grants
			Grant ad colligenda bona
			Where will is mislaid, outside the jurisdiction or inadvertently destroyed
			Cessate grant
		Common form and solemn form grants
			General
			Grant in common form
			Grants in solemn form
			Revocation of grants
			Effect of revocation
			Obtaining a grant in a foreign jurisdiction
			Resealing of grants
	14. The Administrative Process Part 1 — Functions and Duties of Personal Representatives
		General
			Responsibilities of the personal representative
			Assets of the deceased requiring immediate attention
		Funeral and disposal of the body
			General
			Where there is an executor
			Where there is an administrator, or where an administrator is not yet appointed
			Disposal of ashes
			Post-mortem use of body parts
		Proving the will
		Collecting the assets of the deceased
			General
			Available assets
			Can a personal representative be certain that all of the assets have been received?
		Liabilities of the estate
			General
			Liabilities incurred by the personal representative: funeral expenses
			Liabilities incurred by the personal representatives: testamentary and administrative expenses
			Liabilities incurred by the personal representative: personal liability
			Liabilities incurred by the deceased: torts and contracts
			Expediting the ascertainment of liabilities
			Conclusive notification of claims against the estate
			Compelling a creditor to pursue a claim against the estate
			Payment of liabilities of the estate
			Priority for payment of debts
		Insolvent estates
			Applications under Bankruptcy Act 1966
			Administration of insolvent estates under state or territory legislation
		Solvent estates
			General
			Priority of assets at common law
			Priority of assets under state legislation
			Ascertaining whether the testator has excluded the statutory scheme
			Property mortgaged or charged by the testator in his or her lifetime — Locke King’s Act
			Appropriation and marshalling of assets
		Distribution of the estate
			General
			Intestate estate
			Testate estates
			Ascertaining the categories of dispositions
			Specific legacies
			General legacies
			Fund from which general legacies are payable
			Demonstrative legacies
			Residuary gifts
			Ademption and other failure of gifts
		Completion of administration
			General
			Transferring assets to beneficiaries
			What is an assent?
			When is the residuary estate ascertained?
			Differences between the office of a legal personal representative and that of a trustee
	15. The Administrative Process Part 2 — Powers, Rights and Liabilities of Personal Representatives
		Powers
			General
			Power of sale
			Power to carry on business
			Power to compromise
			Power to employ agents
			Power to appropriate assets
		Rights
			General indemnity
			Seeking directions from the court
			Right to commission
		Liabilities
			Rights of beneficiaries during administration
			Failure to fulfil duties: devastavit
			Administration action: equity
			Keeping accounts and records
			Relief from liability
			Defences
	16. Survivorship
		Introduction
		Commorientes
			Legislative provisions
			Judicial considerations
		Commorientes: 30-day survivorship provision
		Commorientes: joint tenancies
		Survivorship: presumption of death
			Context
			General principles
			Matters of proof
			Relationship between the common law presumption of death and commorientes
			Grant of leave to distribute
			Position in New South Wales: Trustee and Guardian Act 2009
Index