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.