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Special grants of probate – NSW

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A recent Supreme Court case on special grants of probate has been added to 101 Succession Answers NSW. Application of Penhall and Dutton; Estate of the late Kylie Anne Dutton [2021] NSWSC 79 relates to an application for special administration ad colligenda bona defuncti, whereby a grant is obtained to protect the estate.

In this case the deceased’s home was unoccupied for 6 months with no insurance cover, which presented a real risk of diminishing the value of the estate. The Court granted the application to allow the property to be sold and the proceeds placed in an interest bearing account. The Court noted this was an interim measure and a full grant was still required to distribute the estate.

The By Lawyers Probate and Letters and Administration commentaries and 101 Succession Answers all deal with special grants. These apply when there is no one able to seek a grant and there are special needs for the estate. The special grants include:

  • Administration de bonis non administrates cum testamento annexo – administrator dies before completing the administration of will;
  • Administration de bonis non administrates – administrator dies before completing the administration of intestacy;
  • Administration for the purposes of the family provisions claim under s 91 of the Succession Act 2006 – also covered in the By Lawyers Family provision claims guide;
  • Administration pendente lite – s 73 Administration during litigation;
  • Administration ad litem to commence or defend proceedings;
  • Administration by a manager appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal for a person lacking mental capacity;
  • Administration during minority;
  • Application by a guardian;
  • Administration durante absentia – executor or administrator outside NSW grant to an attorney – s 72;
  • Application under s 76 if executor or administrator out of jurisdiction special administrator may be appointed;
  • Administration when the sole beneficiary/executor/administrator suffers from a disability, he can nominate another; and
  • Grant to a creditor.

The 101 Succession Answers publication can be found in the Reference materials folder at the top of the matter plans in all By Lawyers succession-related guides – Wills, Powers of Attorney, Appointments of enduring guardian and Family provision claims.

Wills guide reviewed – SA

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The continuing commitment of By Lawyers to updating and enhancing our publications has seen the South Australian Wills guide reviewed.

Subscribers using this popular publication will find a re-ordered and extended matter plan, revised and updated commentary and a number of new precedents. Execution is now a top-level heading on the matter plan, with dedicated commentary on issues such as blind witnesses, gifts to witnesses and solicitors as witnesses. The revisions also include:

  • First steps and taking instructions for wills
  • Testamentary capacity and the test in Banks v Goodfellow
  • The formal requirements for a valid will
  • Informal wills
  • Intestacy
  • Executors
  • Execution
  • Challenges to the validity of a will

New and amended precedents

  • Initial letter to client enclosing costs agreement
  • Letter to client to confirming instructions
  • To do list
  • Instructions for signing
  • Letter reminding client that will is ready for signing

Other resources in the Wills guide reviewed

Links have been added to the By Lawyers reference materials Other trusted and useful resources. This resource can be found in the Reference materials folder on the matter plan.

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.

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.

Wills guide reviewed – QLD

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The continuing commitment of By Lawyers to updating and enhancing our publications has seen the Queensland Wills guide reviewed.

Subscribers using this popular publication will find a re-ordered and extended matter plan, revised and updated commentary and a number of new precedents. Execution is now a top-level heading on the matter plan, with dedicated commentary on issues such as blind witnesses, gifts to witnesses and solicitors as witnesses. The revisions also include:

  • First steps and taking instructions for wills
  • Testamentary capacity and the test in Banks v Goodfellow
  • The formal requirements for a valid will
  • Informal wills
  • Intestacy
  • Executors
  • Execution
  • Challenges to the validity of a will

New and amended precedents

  • Initial letter to client enclosing costs agreement
  • Letter to client to confirming instructions
  • To do list
  • Instructions for signing
  • Letter reminding client that will is ready for signing

Other resources in the Wills guide reviewed

Links have been added to the By Lawyers reference materials Other trusted and useful resources. New cases have been added to 101 Succession Answers (QLD).

Both of these resources can be found in the Reference materials folder on the matter plan.

Wills guide reviewed – VIC

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The continuing commitment of By Lawyers to updating and enhancing our publications has seen the Wills guide reviewed.

Subscribers in Victoria using this popular publication will find a re-ordered and extended matter plan, revised and updated commentary and a number of new precedents. Execution is now a top-level heading on the matter plan, with dedicated commentary on issues such as blind witnesses, gifts to witnesses and solicitors as witnesses. The revisions also include:

  • First steps and taking instructions for wills
  • Testamentary capacity and the test in Banks v Goodfellow
  • The formal requirements for a valid will
  • Informal wills
  • Intestacy
  • Executors
  • Execution
  • Challenges to the validity of a will
New and amended precedents
  • Initial letter to client enclosing costs agreement
  • Letter to client to confirming instructions
  • To do list
  • Instructions for signing
  • Letter reminding client that will is ready for signing
Other resources in the Wills guide reviewed

A number of links have been added to the Other trusted and useful resources.  A number of new cases have been included in 101 Succession Answers (VIC). Both of these resources can be found in the Reference materials folder on the matter plan.

Wills guide reviewed – NSW

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The continuing commitment of By Lawyers to updating and enhancing our publications has seen the Wills (NSW) guide reviewed.

Subscribers using this popular publication will find a re-ordered and extended matter plan, revised and updated commentary and a number of new precedents. Execution is now a top-level heading on the matter plan, with dedicated commentary on issues such as blind witnesses, gifts to witnesses and solicitors as witnesses. The revisions also include:

  • First steps and taking instructions for wills
  • Testamentary capacity and the test in Banks v Goodfellow
  • The formal requirements for a valid will
  • Informal wills
  • Intestacy
  • Executors
  • Execution
  • Challenges to the validity of a will
New and amended precedents
  • Initial letter to client enclosing costs agreement
  • Letter to client to confirm instruction, advice and arrangements
  • To do list
  • Instructions for signing
  • Letter reminding client that will is ready for signing
Other resources in the Wills guide reviewed

A number of links have been added to the Other trusted and useful resources and a number of new cases have been included in 101 Succession Answers (NSW). Both of these can be found in the Reference materials folder on the matter plan.

101 Succession Answers – Vic

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By Lawyers is delighted to release the latest in our 101 Reference Series – the comprehensive reference guide 101 Succession Answers – VIC. This useful resource provides more detailed information than the By Lawyers commentaries on the various areas and issues in succession law. It includes discussion, with links to legislation and cases, on:

  • powers of attorney and supportive attorney appointment;
  • medical treatment decision-making;
  • wills;
  • appointments of guardianship and administration;
  • estates – probate and administration; and
  • family provision.

101 Succession Answers VIC is now a related guide in LEAP – and included for new and existing website subscribers – to these Victorian By Lawyers publications:

  • Wills, Powers of Attorney and Advance Health Directives;
  • Estates; and
  • Family Provision Claims.

This is a must-have, easy-reference, resource providing detailed information in a quickly accessible and searchable format. Tricky questions can be answered quickly using the guide’s alphabetical headings, ‘Ctrl+F’ searchability and plain English format. Practitioners can quickly address specific technical issues as they arise in a matter.

The By Lawyers team will be keeping 101 Succession Answers VIC updated with all relevant new cases and legislation as developments in these areas of law occur.

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