Principles of Australian succession law

Description

Full Title Copyright Preface Acknowledgments Table of Cases Table of Statutes References Table of Contents 1. Introduction Meaning and scope of the law of succession Meaning of succession law Terminology in succession law Probate and administration Courts of construction Historical basis General Succession to personalty Succession to realty Jurisdiction in succession matters Subsequent developments Freedom of testation Succession and property The family and succession Other matters Indigenous perspectives Comparative succession law Conflict of laws Uniform succession laws The future 2. The General Nature of a Will Definition and characteristics of a will Definition Declaration of intention Revocability Takes effect only on death Ambulatory in nature Not limited to property Prescribed form Unitary in nature Wills distinguished from other transactions and relationships Introduction Settlements inter vivos Life insurance policies: nominations Pension and superannuation nominations Joint tenancies Joint banking accounts Donatio mortis causa Donatio mortis causa: in contemplation of death Donatio mortis causa: conditional on death Donatio mortis causa: parting with dominion — delivery Property the subject of a valid donatio Contracts relating to wills Introduction Contracts to leave legacy Contracts to leave specific property Contracts to leave ‘all property’/residue Contracts not to revoke or alter wills Contracts and family provision claims Formalities and enforceability of testamentary contracts Mutual and joint wills Mutual wills: introduction Proof of agreement and other essential elements Marriage and mutual wills Joint wills 3. Making a Will — the Mental Elements Introduction Age Mental capacity: sound mind, memory and understanding Introduction Test of mental capacity Lucid intervals Proof of incapacity Time for satisfying test of mental capacity Testamentary intention General principle Conditional intention Knowledge and approval General Reading over the will Summary Suspicious circumstances General Will prepared by beneficiary Other suspicious circumstances Severance ‘Suspicious circumstances’ differ from undue influence and fraud Undue influence The test No presumption of undue influence Onus of proof Standard of proof Consequence of undue influence Difficulty of proof in undue influence cases Fraud The problem The principle Other cases of fraud Mistake and statutory rectification of wills Introduction Mistake as to legal effect of words used Error of fact: power to omit words Examples of courts’ jurisdiction Limits on Probate Courts’ jurisdiction No jurisdiction to insert words Statutory rectification powers Problem of ‘mirror wills’: execution of wrong wills Relationships between statutory rectification powers and general principles of construction Time limits and extensions of time for applications 4. Statutory Wills: Wills for Persons Who Lack Testamentary Capacity Background Reasons for statutory wills Procedure: applicants Procedure: two-stage process Statutory conditions for exercise of power General Condition one: lack of testamentary capacity Condition two: the proposed will, alteration or revocation is one or might be one that would have been made by the proposed testator if the person was not lacking testamentary capacity Condition three: it is reasonable in all the circumstances (or appropriate) that an order should be made Time statutory will has effect Costs 5. Making a Will — the Formal Requirements Introduction Need for formalities Formalities Writing Requirement of a ‘signature’ Position of the signature Signing or acknowledgment of signature in presence of two witnesses Presence of two witnesses Meaning of attestation and subscription In presence of testator Attestation clauses and presumption of due execution Summary Judicial dispensing powers Informal wills General approach to the legislation Use of previous authorities Scope of the dispensing power Legal criteria Definition of document Document must purport to record the testamentary intention of the deceased Testator intended the document, without more, to operate immediately as a will General considerations applicable to third requirement Timing of intention Admissibility of evidence Burden of proof Disqualification of witnesses The rule Construction of rule More than two witnesses Current position in New South Wales, Queensland, Tasmania and the Northern Territory Disqualification of interpreters in Queensland Incorporation by reference Introduction Existence of document at date of execution of will Document referred to as already in existence Document identified in will Use of incorporation Privileged wills Introduction Who is a privileged testator? Rationale International wills 6. Revocation and Alteration of Wills Introduction Revocation by another will or codicil Express revocation by another will or codicil Implied revocation by another will or codicil Revocation by writing declaring intention to revoke Revocation by actual destruction General The act The intention Revocation by dealing with a will: New South Wales, Victoria, Queensland, Tasmania and the Northern Territory Missing wills: presumption of destruction Dependent relative revocation General Examples of dependent relative revocation Revocation by marriage Wills in contemplation of marriage General Prior legislation Current law Wills revoked by marriage: exception relating to powers of appointment and executors and trustees Revocation by termination of marriage General Statutory provisions Alterations, interlineations and obliterations: amendment of wills General Alteration made before execution of will Alteration duly executed Obliterations: part of will not apparent Effect of amendment 7. Republication and Revival Republication General Intention to republish General effect of republication Change of persons Changes in property Other effects of republication Some limits on republication Revival General Intention to revive Effect of revival 8. Construction of Wills Introduction The problem Courts of probate and courts of construction Rules of construction General principles of construction Expressed intention of the testator Will as a whole to be construed Usual or ordinary meaning rule Secondary meanings: dictionary principle Secondary meanings: surrounding circumstances Words with more than one usual meaning Technical words and phrases Custom Omissions Undesigned insertions: ignoring words Changing and transposing words Subsidiary principles of construction General Golden rule: avoidance of intestacy The principle: ‘ut res magis valeat quam pereat’ The principle: ‘falsa demonstratio non nocet, cum de corpore constat’ Ejusdem generis Inconsistency and conflict: ambiguous words do not control a clear gift Inconsistency and conflict: rule of despair Inconsistency and conflict: rule in Lassence v Tierney Admissibility of extrinsic evidence in construing a will General Admissibility of extrinsic evidence at common law Armchair principle Evidence of intention: equivocations Statutory modification Court unable to ascertain meaning Gifts to persons General Person to be ascertained at date of will Relationships Legitimacy, adoption, artificial conception and children generally Spouses Transgender persons Class gifts Gifts of property General Will speaks from death as to property Types of gifts Specific statutory rules relating to gifts of property 9. Gifts by Will Introduction Types of gifts Specific devises and legacies General legacies Demonstrative legacies Pecuniary legacies Residuary devises and legacies Doctrine of ademption General Applies only to specific gifts Changes in nature of gift Ademption not by testator Ademption not by testator — specific statutory provisions Contracts and options Effect of s 24 of Wills Act (UK) and Australian equivalents Doctrine of lapse General Substitutional clauses Common law exceptions to doctrine: obligations Common law exceptions to doctrine: charities Statutory prevention Statutory substitution to issue Class gifts and joint tenancies Disclaimer Forfeiture for killing General Effect of forfeiture Statutory modification in New South Wales and Australian Capital Territory Equitable doctrine of satisfaction General Satisfaction of commercial debts by legacies Satisfaction of portion debts by legacies Satisfaction of legacies by portions (sometimes called equitable ademption) Satisfaction of legacies by legacies Equitable doctrine of election General Example 10. Distribution on Intestacy Definition of intestacy General Entitlement on intestacy Entitlement of surviving spouses Definition of ‘spouse’ General disposition to surviving spouse Surviving spouse with no issue of the intestate Surviving spouse and issue of the intestate Election by surviving spouse with respect to matrimonial home Entitlement of issue General Definition of ‘issue’ Entitlement of issue Others entitled Parents: surviving parent(s) but no surviving spouse or issue Surviving parent(s) and surviving spouse Next of kin The Crown Doctrine of hotchpot Indigenous persons’ estates General Dedicated intestacy rules: New South Wales, Northern Territory and Tasmania Queensland and Western Australia Patterns of distribution: jurisdiction by jurisdiction General Australian Capital Territory New South Wales and Tasmania Northern Territory Queensland South Australia Victoria Western Australia 11. Family Provision Introduction Applicants: persons eligible to apply Spouses De facto spouses, partners, same sex relationships Children Dependency: New South Wales and Queensland Others — including the previous Victorian position Time limits for application General Extensions of time Criteria in determining entitlement Twin tasks General approach to claims Specific factors Time for ascertaining adequacy and propriety Disentitlement: character and conduct of the applicant General Time for ascertaining character and conduct Partial disentitlement Statements made by testator Property out of which order may be made General Donatio mortis causa Joint banking accounts Joint tenancies of real estate Property distributed in administration Property subject to contract: testamentary promises New South Wales: notional estate Types of relief: orders Types of orders Variation of orders Burden of provision of orders Contracting out of the legislation General Agreements under the Family Law Act 1975 (Cth) New South Wales: Succession Act 2006 s 95 12. Personal Representatives Introduction Appointment of executors Introduction Identification of the executor Testator’s delegation of appointment of executor Ambiguity as to identity of executor Appointment of an office-holder Appointment of partners in a partnership Substitutional appointments Limited appointments of executors Implied appointment of executor: executors according to the tenor Capacity to act as executor Inherent jurisdiction of the court: passing over the executor Minors Mentally or physically disabled persons Persons with criminal records Corporations Bankrupts and insolvent persons Assumption and renunciation of office Assumption of office by executors Executor de son tort Transmission of executor’s office: chain of representation Renunciation of office by executor Administrators Appointment of administrators Jurisdiction of the court Grants of administration with the will annexed Grant of general administration Grants of administration to strangers Retirement and removal of personal representatives 13. Grants of Representation Introduction Grants of representation and the vesting of property Form and types of grant Proving the death Limited grants Overview of limited grants Grant of representation with respect to unadministered estate Grant of administration during the minority of the appointed executor Grant of administration durante absentia Grant during incapacity of entitled person Grant of administration pending suit Grant of administration ‘for the purposes of the suit’ Miscellaneous grants Grant ad colligenda bona Where will is mislaid, outside the jurisdiction or inadvertently destroyed Cessate grant Common form and solemn form grants General Grant in common form Grants in solemn form Revocation of grants Effect of revocation Obtaining a grant in a foreign jurisdiction Resealing of grants 14. The Administrative Process Part 1 — Functions and Duties of Personal Representatives General Responsibilities of the personal representative Assets of the deceased requiring immediate attention Funeral and disposal of the body General Where there is an executor Where there is an administrator, or where an administrator is not yet appointed Disposal of ashes Post-mortem use of body parts Proving the will Collecting the assets of the deceased General Available assets Can a personal representative be certain that all of the assets have been received? Liabilities of the estate General Liabilities incurred by the personal representative: funeral expenses Liabilities incurred by the personal representatives: testamentary and administrative expenses Liabilities incurred by the personal representative: personal liability Liabilities incurred by the deceased: torts and contracts Expediting the ascertainment of liabilities Conclusive notification of claims against the estate Compelling a creditor to pursue a claim against the estate Payment of liabilities of the estate Priority for payment of debts Insolvent estates Applications under Bankruptcy Act 1966 Administration of insolvent estates under state or territory legislation Solvent estates General Priority of assets at common law Priority of assets under state legislation Ascertaining whether the testator has excluded the statutory scheme Property mortgaged or charged by the testator in his or her lifetime — Locke King’s Act Appropriation and marshalling of assets Distribution of the estate General Intestate estate Testate estates Ascertaining the categories of dispositions Specific legacies General legacies Fund from which general legacies are payable Demonstrative legacies Residuary gifts Ademption and other failure of gifts Completion of administration General Transferring assets to beneficiaries What is an assent? When is the residuary estate ascertained? Differences between the office of a legal personal representative and that of a trustee 15. The Administrative Process Part 2 — Powers, Rights and Liabilities of Personal Representatives Powers General Power of sale Power to carry on business Power to compromise Power to employ agents Power to appropriate assets Rights General indemnity Seeking directions from the court Right to commission Liabilities Rights of beneficiaries during administration Failure to fulfil duties: devastavit Administration action: equity Keeping accounts and records Relief from liability Defences 16. Survivorship Introduction Commorientes Legislative provisions Judicial considerations Commorientes: 30-day survivorship provision Commorientes: joint tenancies Survivorship: presumption of death Context General principles Matters of proof Relationship between the common law presumption of death and commorientes Grant of leave to distribute Position in New South Wales: Trustee and Guardian Act 2009 Index