ByLawyers News and Updates

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.

Family provision claims – SA

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The new By Lawyers Family Provision claims – SA Guide has received its first update. A recent Supreme Court case on joinder has been added.

A solicitor might receive instructions from a potential claimant after the client receives notice, as a person with an interest in the estate, from another claimant who has already commenced proceedings. Plaintiffs in Family Provision claims are required under the Inheritance (Family Provision) Act 1972 to serve other potential claimants with the proceedings.

Those potential claimants may then make an interlocutory application within 28 days of service, seeking to be joined as a plaintiff under s 8(7) of the Act. That section provides that the court may, ‘if satisfied that it is just and expedient to do so’, permit joinder of further claimants at any time prior to the final determination of the proceedings.

The recent Supreme Court case of Columbus v Efstathis & Ors [2019] SASC 149 makes it clear that in considering such an application, the court will in effect need to be satisfied that the applicant has reasonable prospects of success.

In that case the court found there was no reasonable prospect of the applicant, a grandchild of the deceased, establishing any moral obligation on the part of the deceased to have made provision for the applicant out of the estate. Leave for the applicant to be joined as a claimant was therefore refused.

In the course of its determination, the court reviewed the case law on the status of grandchildren with Family Provision claims, affirming the NSW Supreme Court decision of Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 in finding that ‘as a general rule a grandparent does not have a responsibility to make provision for a grandchild in his or her testamentary disposition’.

This useful case has been added to the Family Provision claims – SA Commentary on page 25 under Acting for a potential claimant.

Testamentary capacity

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Testamentary capacity was considered in a recent Victorian Supreme Court case.

The court found In the Matter of the Will and Estate of Joyce Helen Greer, deceased [2019] VSC 592 that the then 95-year-old testator had capacity. Her will in which she made no provision for one of her two adult sons was admitted to probate.

Of importance in the court’s decision was evidence from the lawyer who took the instructions and drew the will. This was not the testator’s usual solicitor. Her long-term solicitor, one of the executors of the will, had referred the testator to another solicitor, a specialist in wills. He had taken comprehensive instructions and made appropriate notes. He also sought a medical report from the testator’s usual doctor.

The evidence of the testator’s doctor impressed the court and it was preferred to evidence from expert medical practitioners led by both parties. The experts gave opinions based on records, but had not seen the testator.

One of the experts noted a ‘…general consensus amongst experts that capacity is task specific and that individuals with cognitive impairment may retain capacity to do many tasks. Even if [the testator] had been suffering from a degree of executive impairment affecting, for example, her ability to regulate her behavior in a social setting, it did not necessarily follow that she lacked testamentary capacity‘. That is an important point for solicitors taking instructions from will makers to bear in mind.

The case includes, at [126] – [133], an analysis of the cases on proof of testamentary capacity. The court noted that ‘The proof required to establish testamentary capacity does not need to eliminate all doubt and a residual ‘doubt’ does not necessarily exclude the existence of testamentary capacity‘.

The statement of Kirby P in Re Griffith (1995) 217 ALR 284, 294 that the freedom of testation includes the freedom to be ‘unfair, unwise or harsh with one’s own property’ was also cited with approval.

This useful case on testamentary capacity has been added to the By Lawyers 101 Succession Answers (NSW) publication. This valuable resource is found in the Reference Materials folder in the Wills, Estates, Family Provision Claims, and Powers of Attorney, Appointment of Enduring Guardian and Advance Care Planning guides.

Suspicious circumstances – Wills – All states

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Suspicious circumstances surrounding the drafting and execution of a will were considered in a recent NSW Court of Appeal case.

The validity of a will can be challenged by those who have standing. These include the people who are affected by it or a previous will. They may suspect the testator lacked the capacity to make the will, or that it was executed under duress, or other suspicious circumstances.

Where a will is executed under apparently suspicious circumstances the onus of proving that nothing untoward occurred is borne by the person propounding the will. Probate will not be granted unless the propounder allays those suspicions.

In Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197 at [147] the Court of Appeal considered the onus had not been discharged, despite the primary judge having granted probate of the will.

The suspicious circumstances in that case included the instructions for the will and a power of attorney having not come from the testator/principal, an unexplained variation of the instructions, the description of the executor/beneficiary as the testator’s ‘daughter’ when they were in fact unrelated, the unwarranted urgency and the subsequent transfer of the testator/principal’s residential property to the attorney for nominal consideration. The case was also complicated by the attending solicitor’s decision to destroy an original file note and create a more detailed version some months later, after having also acted for the attorney regarding the transfer of the property.

The mechanical treatment of the suspicious circumstances doctrine by the first instance judge in this case led the Court of Appeal to suggest ‘a preferred approach’ at [164]-[173], although the court observed that the limits of the doctrine ‘can scarcely be regarded as settled’.

Practitioners should take care to observe and inquire about any apparently suspicious circumstances surrounding the instructions for and the execution of wills and other personal documents. Properly identifying the client is a basic precaution, but enquiring about relationships and motivations may also be warranted. Confirming instructions with the client in the absence of those who might benefit from the documents is also prudent. Clear, accurate, detailed and contemporaneous file notes are always advisable.

This interesting case has been added to the By Lawyers 101 Succession Answers (NSW) publication.

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