ByLawyers News and Updates

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.

New succession cases – QLD

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New succession cases have been added to the By Lawyers 101 Succession Answers (QLD) reference manual. These helpful recent cases fall under the Estates and Family provision claims sections of the publication.

Costs in Family provision claims

Shelly v Prager (No 2) [2020] NSWSC 1553 concerned the court assessing the overall justice of a case when determining whether special provision for costs should be made in a family provision claim. Williams J at [18] stated the following factors may be relevant:

– whether one party has engaged in unreasonable conduct in the commencement or maintenance of the proceedings which has resulted in the other party (or parties) to the proceeding incurring unnecessary costs;

– whether an applicant’s claim for provision out of an estate is frivolous, vexatious or made without reasonable prospects of success;

– whether an applicant’s claim, although unsuccessful, was otherwise reasonable, meritorious or borderline; and

– the relative size of the deceased estate.

Judicial advice for trustees

Re Perpetual Trustee Company Limited as a trustee for the Joseph Banington Davis Settlement [2020] NSWSC 1574 concerned the dual purpose of an application for judicial advice by an executor/ trustee. Robb J at [72] noted that:

It is…not right to see a trustee’s application for judicial advice about whether to sue or defend proceedings as directed only to the personal protection of the trustee. Proceedings for judicial advice have another and no less important purpose of protecting the interests of the trust.

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

New succession cases – VIC

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New succession cases have been added to the By Lawyers 101 Succession Answers (VIC) reference manual. These helpful recent cases fall under the Estates and Family provisions claims sections of the publication.

Costs in Family provision claims

Shelly v Prager (No 2) [2020] NSWSC 1553 concerned the court assessing the overall justice of a case when determining whether special provision for costs should be made in a family provision claim. Williams J at [18] stated the following factors may be relevant:

– whether one party has engaged in unreasonable conduct in the commencement or maintenance of the proceedings which has resulted in the other party (or parties) to the proceeding incurring unnecessary costs;

– whether an applicant’s claim for provision out of an estate is frivolous, vexatious or made without reasonable prospects of success;

– whether an applicant’s claim, although unsuccessful, was otherwise reasonable, meritorious or borderline; and

– the relative size of the deceased estate.

Judicial advice for trustees

Re Perpetual Trustee Company Limited as a trustee for the Joseph Banington Davis Settlement [2020] NSWSC 1574 concerned the dual purpose of an application for judicial advice by an executor/trustee. Robb J at [72] noted that:

It is…not right to see a trustee’s application for judicial advice about whether to sue or defend proceedings as directed only to the personal protection of the trustee. Proceedings for judicial advice have another and no less important purpose of protecting the interests of the trust.

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

New succession cases – NSW

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New succession cases have been added to the By Lawyers 101 Succession Answers (NSW) reference manual. These helpful recent cases fall under the Estates and Family provision claims sections of the publication.

Proof of death by inference

The Estate of Alan Bruce Beeby [2020] NSWSC 1512 concerned proof of death by inference. A court may declare a missing person dead, without a death certificate and before the seven-year period relating to the presumption of death is met. At [53] Hallen J explained:

…an inferred death is one where, although a body is not found or recovered, the death can be inferred from the surrounding circumstances, and where it can be inferred that it is more probable that the person has died, rather than that he, or she, is living.

Judicial advice for trustees

Re Perpetual Trustee Company Limited as a trustee for the Joseph Banington Davis Settlement [2020] NSWSC 1574 concerned the dual purpose of an application for judicial advice by an executor/trustee. Robb J at [72] noted that:

It is…not right to see a trustee’s application for judicial advice about whether to sue or defend proceedings as directed only to the personal protection of the trustee. Proceedings for judicial advice have another and no less important purpose of protecting the interests of the trust.

Intermeddling by executors

The Victorian case of Re Abat [2020] VSC 560 contains a discussion of when intermeddling in an estate might deprive an executor of the right to renounce. It should be read in conjunction with the NSW case of Mulray v Ogilvie [1987] 9 NSWLR 1 which is already in 101 Succession Answers.

Costs in Family provision claims

Shelly v Prager (No 2) [2020] NSWSC 1553 concerned the court assessing the overall justice of a case when determining whether special provision for costs should be made in a family provision claim. Williams J at [18] stated the following factors may be relevant:

– whether one party has engaged in unreasonable conduct in the commencement or maintenance of the proceedings which has resulted in the other party (or parties) to the proceeding incurring unnecessary costs;

– whether an applicant’s claim for provision out of an estate is frivolous, vexatious or made without reasonable prospects of success;

– whether an applicant’s claim, although unsuccessful, was otherwise reasonable, meritorious or borderline; and

– the relative size of the deceased estate.

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

RedCrest-Probate – VIC

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From 1 July 2020 all applications for grants of probate and letters of administration must be filed in RedCrest-Probate, which is the Supreme Court’s online filing system.

The documents required for a grant can be completed and uploaded as PDFs into RedCrest-Probate. Alternately they can be completed using the guided questions in the system.

The original will, or any other document upon which the application for a grant is based, must still be physically filed, or posted to the Court.

In a move to make the new process as electronic as possible, the original grant is the electronic copy issued by the court. Asset holders can view the original grant through RedCrest-Probate using a unique identifier and the application number appearing on the grant.

The By Lawyers Probate and Letters of Administration guides have been updated accordingly.

Lodgments via Sympli – NSW

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Transfer and duty lodgments

The range of lodgments via Sympli that are available in NSW has expanded.

Sympli has now been approved by NSW Land Registry Services and Revenue NSW for transfer and duty lodgments.

The following documents can now be lodged through Sympli:

Stand alone transactions 

  • Caveat
  • Withdrawal of Caveat
  • Priority Notice
  • Priority Notice Extension
  • Priority Notice Withdrawal
  • Mortgage
  • Discharge of Mortgage
  • Notice of Death
  • Transmission Application to Executor

Financial settlement transactions

  • Transfer
  • Mortgage
  • Discharge of Mortgage

The By Lawyers Conveyancing and Property guides for NSW provide property law practitioners with practical commentary and useful precedents for all aspects of the conveyancing process.

Family provision claims – NSW

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A full review of the By Lawyers Family provision claims – Acting for the estate guide has been conducted. This follows upon the recent review of Family provision claims – Acting for the plaintiff.

The review of this popular practical guide ensures that all content is in line with current law and practice.

Updates and enhancements include:

  • a re-organised and streamlined commentary that better caters for current practice;
  • additional assistance to help the practitioner get the matter underway;
  • enhanced commentary on preparing for and attending at mediation;
  • an updated matter plan that includes links to important sections of the commentary; and
  • significantly enhanced precedents:
    • Letter to plaintiff’s solicitor in response to their initial letter;
    • Brief to counsel – Defendant;
    • Defendant’s notice to eligible persons; and
    • Outline of submissions – Defendant.

This review of our NSW Family provision claims guides are part of By Lawyers ongoing commitment to continual improvement and enhancement of our content.

Additional information on Family provision claims can be found in the By Lawyers reference manual 101 Succession Answers (NSW). This includes the leading and latest cases on various important aspects of family provision claims. 101 Succession Answers is available in the Reference Materials folder in all related guides for NSW – Family provision, Wills, Estates, Powers of attorney and Appointments of enduring guardian.

‘To do’ list – Family provision claims – NSW

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New precedent ‘To do’ lists have been added to the By Lawyers Family Provision Claims – Acting for the plaintiff and Acting for the estate Guides for NSW.

Many subscribers would be familiar with By Lawyers helpful ‘To do’ lists, which serve as a checklist for progress through the matter. The ‘To do’ list ensures no critical steps are missed and allows practitioners to mark-off each step and make sure they know where the matter is up to.

The new ‘To do’ lists for Family Provision claims prompts for each of the critical steps at each stage of the matter, namely:

  • Getting the matter underway – including costs disclosure
  • Settling it early – initial offers of settlement
  • The claim – preparing and filing the summons and plaintiff’s affidavit OR notice of appearance and notice to eligible persons
  • The first directions hearing
  • Mediation
  • Next directions hearing
  • Preparation for hearing
  • Hearing
  • After hearing – including advice on appeal rights.

These new precedents will assist lawyers in Family Provision claims to manage their matters, whether acting for the claimant or the estate.

101 Succession Answers – NSW

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Following an author review new cases have been added and other enhancements made to the By Lawyers Reference Manual 101 Succession Answers (NSW).

Nobarani v Mariconte [2018] HCA 36

This case supports the requirement of an ‘interested’ party wishing to challenge the validity of a will to show that they have rights which will be affected by the disputed grant of probate or administration.

Re Estates Brooker-Pain and Soulos [2019] NSWSC 671

Considerations regarding disclosure of documents and information in contested probate proceedings were extensively discussed. This case analysed the applicable law, practice and procedure in the context of applications to set aside subpoenas and notices to produce which called for documents relating to the making of the disputed wills. This included solicitors’ notes and files. The interplay between subpoenas, the court’s Practice Note SC Eq 11 and case management orders was examined in detail.

The court addressed the determination of ‘legitimate forensic purpose’ in such cases, especially where pleadings had not closed and the issues in dispute were uncertain. This decision has therefore been added to the By Lawyers Reference Manual 101 Subpoena Answers too.

The court also commented on the practice of sending ‘Larke v Nugus’ letters to ‘…a person involved in the preparation or execution of a will…[seeking] disclosures about the circumstances in which a will was prepared or executed’.

Application of NSW Trustee & Guardian; Estate of Dudley Keith Vaughn [2019] NSWSC 850 and In the Estate of Hansie Hart [2019] ACTSC 317

These two recent cases each dealt with issues relating to the presumption of death.

Gregory Joseph Mills as trustee v Julie Elizabeth Mills and Ors [2018] NSWSC 363

This case is instructive as to the considerations the court applies when giving judicial advice and determining construction issues on testamentary trusts.

Finnegan & Anor v Garner & Ors [2019] QSC 100

Here the estate faced claims which, if they were resolved by litigation would result in the estate being consumed by legal costs. The court noted, at [10], that:

It is the duty of trustees of the estate not to embark upon expensive litigation which will have the effect of depleting the estate. In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand Gummow ACJ, Kirby, Hayne and Heydon JJ said that: “a trustee who is sued should take no step in defence of the suit without first obtaining judicial advice about whether it is proper to defend the proceedings.”

Koellner v Spicer [2019] NSWSC 1571

On a family provision claim, an adult child with a medical condition and meagre financial resources was awarded a 35% legacy from the reasonably small estate even though the deceased had expressly excluded him on the basis they had no relationship.

Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843

The court emphasised, including by reference to the ‘overriding principles’ of the Civil Procedure Act, the duty on parties to contain costs in family provision litigation. The court heavily criticised disproportionate costs being incurred.

 

Like all By Lawyers Reference Materials, 101 Succession Answers (NSW) is updated regularly to cover developments in case law and procedure.

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