ByLawyers News and Updates

Estates cases – VIC

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New estate cases have been added to the By Lawyers 101 Succession Answers (VIC) reference manual.

The new cases under the Estates section of the publication relate to:

Vesting of interest in beneficiaries – Rule in Saunders v Vautier

A beneficiary can apply to the court to have their interest vest earlier than provided for in the will. The rule in Saunders v Vautier possibly provides such a mechanism.

The High Court set out the modern formulation of the rule in Saunders v Vautier in CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53 at [47]:

Under the rule in Saunders v Vautier, an adult beneficiary (or a number of adult beneficiaries acting together) who has (or between them have) an absolute, vested and indefeasible interest in the capital and income of property may at any time require the transfer of the property to him (or them) and may terminate any accumulation.

If the beneficiaries are ascertained, have capacity and all consent then ‘they may put an end to the trust by directing the trustee to transfer the interest in the estate to themselves, notwithstanding any direction to the contrary in the trust instrument’: Krstic v State Trustees Ltd [2012] VSC 344 at [15].

For a case where the rule was not upheld due to the beneficial interest being classed as contingent, see Arnott v Kiss [2014] NSWSC 1385. This case also suggests that a gift over clause may defeat application of the rule.

Accordingly, whether there is any reason for the executor to resist the application would depend upon there being any terms of the will that might support such a position. If the executor is in any doubt then the trustee can and should seek judicial advice.

The addition of these new estate cases to 101 Succession Answers (VIC) is part of our continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Estate cases – QLD

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New estate cases have been added to the By Lawyers 101 Succession Answers (QLD) reference manual.

The new cases under the Estates section of the publication relate to:

Vesting of interest in beneficiaries – Rule in Saunders v Vautier

A beneficiary can apply to the court to have their interest vest earlier than provided for in the will. The rule in Saunders v Vautier possibly provides such a mechanism.

The High Court set out the modern formulation of the rule in Saunders v Vautier in CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53 at [47]:

Under the rule in Saunders v Vautier, an adult beneficiary (or a number of adult beneficiaries acting together) who has (or between them have) an absolute, vested and indefeasible interest in the capital and income of property may at any time require the transfer of the property to him (or them) and may terminate any accumulation.

In Re Tracey [2016] QCA 194 the Court of Appeal at [10] stated that:

The context of that reference makes it clear that the rule may be invoked only by a beneficiary who is sui juris. The expression sui juris connotes in law “a person who can validly contract and bind himself by legal obligation uncontrolled by another person”.

For a case where the rule was not upheld due to the beneficial interest being classed as contingent, see Arnott v Kiss [2014] NSWSC 1385. This case also suggests that a gift over clause may defeat application of the rule.

Accordingly, whether there is any reason for the executor to resist the application would depend upon there being any terms of the will that might support such a position. If the executor is in any doubt then the trustee can and should seek judicial advice.

The addition of these new estate cases to 101 Succession Answers (QLD) is part of our continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Estates cases – NSW

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New estates cases have been added to By Lawyers 101 Succession Answers (NSW) reference manual.

The new cases under the Estates section of the publication relate to:

Additional assets after grant

The administrator’s obligation to disclose is a continuous one. Any assets not disclosed in the initial affidavit must be disclosed to the court by way of further affidavit: r 78.91 Supreme Court Rules 1970. If an asset has come to light after the grant has been finalised, an Affidavit of Additional Assets needs to be filed.

If an updated copy of the grant is required, an Application for Exemplification also needs to be filed. An exemplification is a certified and sealed copy of a grant. The Inventory of Property does not need to be amended.

The Affidavit of Additional Assets and the Application for Exemplification are available in the By Lawyers Estates guide, on the Probate and Letters of Administration matter plans.

Vesting of interest in beneficiaries

A beneficiary can apply to the court to have their interest vest earlier than provided for in the will under the rule in Saunders v Vautier.

The High Court set out the modern formulation of the rule in Saunders v Vautier in CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53 at [47]:

Under the rule in Saunders v Vautier, an adult beneficiary (or a number of adult beneficiaries acting together) who has (or between them have) an absolute, vested and indefeasible interest in the capital and income of property may at any time require the transfer of the property to him (or them) and may terminate any accumulation.

In Beck v Henley [2014] NSWCA 201 the Court of appeal at [35] stated that:

Adult beneficiaries who are absolutely and indefeasibly entitled have power to “overbear and defeat the intention of a testator or settlor to subject property to the continuing trusts, powers and limitations of a will or trust instrument”.

A case where the rule was not upheld has been added –  Arnott v Kiss [2014] NSWSC 1385.

The addition of these new estates cases to 101 Succession Answers (NSW) is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

NSW – Estates – Can a beneficiary be evicted?

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In the recent case of Kennedy v Kennedy [2018] NSWSC 1087 Davies J struck out a defence and granted liberty for the executors to obtain default judgement and issue a writ of possession where one of five adult beneficiaries had been residing in the deceased’s house for about two years since the date of death, despite being requested by the executors to vacate. His Honour observed that:

[7] In my opinion the defences filed by the defendant do not disclose any defence to the claim by the executors. Where there is no lease in place, except if a claim was made in the nature of some form of constructive trust, it is doubtful if there could be any defence to the right of the executors to get in all of the estate property including by obtaining possession of the land.

It is the duty of the executor or administrator to get in the estate. If necessary the executor or administrator can apply to the court for a declaration and/or a writ of possession.

This applies where a beneficiary is in occupation of real property owned by the estate without permission and refuses to vacate.

This case has been added to the Estates chapter of By Lawyers 101 Succession Answers (NSW).

WA Estates – Subscriber feedback prompts enhanced precedents and commentary

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At By Lawyers we love hearing from our subscribers about content that might improve our publications. A recent subscriber query brought to our attention that, while our WA Estates publication included precedents for notice and consent forms where an application is not made by all executors for probate, it is also sometimes necessary to have the equivalent for letters of administration.

This query prompted a review of the WA Estates Guide by our editorial team, after which By Lawyers have now published the following new or enhanced precedents:

  • Notice and consent forms for persons entitled to apply for Letters of Administration;
  • Consent form where there is no guarantee;
  • Letters to accompany such forms;
  • Letter to beneficiary re executor’s claim for commission;
  • Motion to dispense with the requirement for guarantees;
  • Motion for revocation of grant of probate or administration.

We have also enhanced our WA Estates commentaries with new content including:

  • Who is a beneficiary?
  • Solicitors dealing with beneficiaries when acting for the estate;
  • Challenge to the will by a beneficiary;
  • Vesting of a beneficiary’s interest in an estate;
  • Right to a copy of a will and inventory of assets.

By Lawyers always endeavour to be responsive to our subscribers’ needs. We hope that these improvements will assist not only the firm which prompted them, but all users of our WA Estates Guide.

VIC – Estates – Effect of marriage and divorce on will beneficiaries

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Our commentary on the effects of marriage and divorce on wills has been added to. While a will is revoked by the marriage of the testator a number of exceptions apply, as per s 13 of the Wills Act. The commentary on the impact of divorce on a will is also enriched.

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