obiter | ByLawyers News and Updates

Estates cases – NSW

by

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.

RedCrest-Probate – VIC

by

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.

Guardianship – VIC

by

Changes to guardianship legislation in Victoria commence on 1 March 2020.

The Guardianship and Administration Act 2019 repeals and replaces the Guardianship and Administration Act 1986 from 1 March 2020.

Described by Attorney-General Jill Hennessy as ‘the biggest changes to Victoria’s guardianship and administration laws in more than 30 years‘, the amendments are aimed at ensuring greater protections for adults with a disability who have impaired capacity to make and participate in decisions that affect their lives.

As a result of the new legislation commentaries in the following By Lawyers Guides have been updated:

  • Probate;
  • Letters of Administration;
  • Wills;
  • Powers and Advance Care Directives;
  • County Court – Acting for the plaintiff and Acting for the defendant;
  • Magistrates Court – Acting for the plaintiff;
  • Supreme Court – Acting for the plaintiff and Acting for the defendant; and
  • Personal Injury.

When announcing the amendments, the Attorney General stated that: ‘The changes reflect a more modern understanding of decision-making capacity and disability, and ensure that a person’s will and preferences are followed where possible and appropriate.’

The updates to our Guides were overseen by our highly experienced author Rossyln Curnow.

By Lawyers are committed to always keeping our subscribers up-to-date.

101 Succession Answers – NSW

by

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.

Condition and finding – All states

by

A new precedent with example content has been added to all By Lawyers Estates guides. The example content is for an affidavit regarding the condition and finding of a will.

Such an affidavit may be required to satisfy the court as to any issues surrounding the condition an original will is in, or the circumstances by which it was found. This affidavit may be lodged either with an application or in response to a requisition when applying for a grant of probate, or a grant of letters with the will annexed.

This new precedent provides extensive example wording addressing the issues of the will’s condition and finding. The content encompasses evidence to be given by an employee of the firm, the executor, a subscribing witness, or another person who has knowledge of how, for example, marks upon the will are not an indication of revocation.

As with all By Lawyers ‘example content’ precedents, the relevant form can be found immediately above the new precedent on the matter plan. The example content can be modified as required and pasted into the appropriate place in the form.

Probate Registry online applications – South Australia

by

From Monday 26 November 2018, all applications for probate and letters of administration in the Supreme Court Probate Registry must be filed through CourtSA – the new electronic management system that is in the process of being introduced for all South Australian courts.

As at 15 October 2018, the probate registry no longer accepts paper applications. The Court has advised that any current paper transactions where a grant is not issued by 26 November 2018, will need to be re-lodged online through CourtSA.

It is expected that the online process will ultimately streamline applications and result in faster processing times, but there clearly will be some delay in the implementation phase, as no applications can now be filed until 26 November 2018.

Fees Update – Supreme Court Probate Office – VIC

by

New probate filing fees

On 30 September 2018 the Supreme Court (Fees) Regulations 2018 introduces new filing fees for the Supreme Court of Victoria’s probate office.

The By Lawyers Victorian Estates Guide have been updated to reflect these changes.

ACT – Estates – New commentary

by

Our ACT Estates publications have been enhanced to include new bespoke precedents – Costs agreement – Probate and Costs agreement – Letters of Administration, which can be found in folder A. Getting the matter underway in each of the respective publications.

These estate specific costs agreements are customised to suit an estate matter:

  • listing the work typically carried out;
  • listing fees and expenses typically incurred;
  • detailing for handy reference in a schedule the Supreme Court filing fees;
  • also providing in a schedule the solicitor administration costs that may be applicable.

With so much less work required these custom costs agreements will save you time on every estates matter.

The commentary in both Probate and Letters of Administration on distribution of the estate has also been enhanced to include a new section When can an executor safely distribute? covering the procedural requirements in the ACT to ensure the executor or administrator is protected.

ACT – Estates – New publication

by

We are delighted to announce a new publication by our ACT author, Doug Dawson, being a Guide for Probate and Letters of Administration (ACT).

The guide features detailed commentary, a matter plan and all necessary forms and precedents for obtaining a grant, getting in the assets and making the distribution.

The practical nature of this publication allows the practitioner to:

  • take instructions via our comprehensive and methodical instruction sheet;
  • gather information readily using our library of initial letters to asset holders;
  • make an application for probate or letters of administration with ease and confidence;
  • have a deed of release and indemnity and a deed of family arrangement immediately available in the mater when required.

We invite ACT practitioners – and those in other states who may need to conduct ACT estate matters – to explore our Probate and Letters of Administration matter plans, to appreciate the practicality and value of our publication.

New publication – NSW 101 Succession Answers, including Appointments of Enduring Guardian and Powers of Attorney

by

We are delighted to release the latest in our 101 Reference Series – a comprehensive reference guide for NSW dealing with:

  • appointments of enduring guardian;
  • powers of attorney;
  • wills;
  • estates  – probate and administration;
  • family provision.

101 Succession Answers is now included for new and existing subscribers to these NSW publications:

  • Wills, Powers of Attorney, Appointment of Enduring Guardian & Advance Care Planning;
  • Estates;
  • Family Provision Claims.

This is a must-have, easy-reference resource for all firms, providing detailed information in a quickly accessible and searchable format. Tricky questions can be answered quickly using the guide’s alphabetical headings and plain English format. The content can be cut and pasted into letters or emails to clients addressing their specific queries, either in response to an initial enquiry or during the course of the matter.

  • Who is not eligible to be appointed as an enduring guardian?
  • When is an attorney to consider that their principal is incommunicate?
  • Can a solicitor take a benefit under a will that the solicitor has witnessed?
  • Under what circumstances might a grant of probate be revoked?
  • Has the High Court considered the position of an adult child who brings a family provision claim on the basis that their estranged parent previously promised them an inheritance?

If you would like everyone in your firm to be able to readily answer questions such as these, then you will definitely benefit from 101 Succession Answers!

Connect with us