Case summary succession PDF

Preview

Summary

Succession Law 4236 cases ...

Description

Succession Act 2006 NSW Egerton v Brownlow (Earl) Trustees of Church Property of the Diocese of Newcastle v Ebbeck Kleinsang estate of slavinskyji Dodd v lang

Wills Act 1968 (ACT)

Conditions contrary to public policy beneficiary must obtain a promotion in the peerage otherwise he does not inherit. Such a condition was contrary to public policy because it induces the heir to engage in corrupt activity to make sure he gets a peerage Conditions contrary to public policy His sons and wife needed to profess the Anglican faith. 2 of the sons where already married to roman catholic women CJ Dixon p 403 in a marriage between a protestant husband and catholic wife the cause to forfeit his share in his fathers estate. He is induced to rid himself of an inconvenient spouse. It sows the seeds of discontent

Authority for a will in a foreign language being admitted. who owned assets in nsw but he died in Germany and his will was written in german. They should file a translation of the will at the time. But it was an error in the translation which had been filed. All applicant has to ask for leave to file a replacement translation. Writing can be on any surface he wrote in pencil in one of the interior walls in the house and was leaving his assets to his nieces in the Russia wills being formal, evidential, ritual and cautionary Solicitor read will back to lang who was dying in hospital asked lang said yes this is 100 %correct frank. And lang could not hold the pen so did not sign. Solicitor should have asked testator it he should sign at his direction. So will did not meet statutory requirements and was not admitted to probate. Had this case been decided after the dispensing power had been introduced it would have been decided differently.

re lucas

Attestation. ‘to attest and subscribe a will means to put ones signature or other identifying mark representing ones name on the will with the intention of attesting that the attestor’s signature has been made in one’s presence’. Adam J. the witnesses are testifying that he did sign the will. Mrs lucas decided to alter her will and made the alterations on the carbon copy. Her witnesses had signed next to the carbon copy signature rather than next to the newer signature.

re bladen

Scope of presumption of due execution. Miss Paterson wrote testators codicil for him and codicil was witnessed by her and another witnesse. Problem was the testator has to acknowledge or sign the will in the presence of both witnesses together. But both witnesses had different memories of whether they were all 3 in the room together to witness. It came down to which witness’s memory was most reliable. The evidence has to be enough to rebut the presumption Full Secret trusts beneficiary and terms of the trust are expressed privately not in the will. a settlor communicates to the trustee that the settlor would pass property to him for his holding on trust for the beneficiary after death of settlor. court would uphold the trust even if it does not satisfy the formality requirement in s9. Testator gave his entire estate to assistant. She was to give his niece and housekeeper 3 pounds weekly for life. Evidence was from assistant, niece and housekeeper and letters from assistant to respondents that that is what testator had asked her to do. Plus look after his wife. Assistant paid the respondents

Voges v Monagshan

Howell v hyde Re Jeffery

Birmingha mv Renfrew

estate of masters (hill v Plumber)

the 3 pounds weekly plus continued to pay the wife what the testator had paid her during his lifetime. Monagshan said there was no written instructions from the testator to her and it was all at her discretion. Assistant paid respondents with a letter stating it was at her discretion and the payments were dependent on the income of the estate. The tax department requested payment from the estate and the estate was worth much less and then all further payments to beneficiaries ceased. The judge said that despite the argument of whether the testator wrote his instructions down he was swayed by the assistants acquiescence to continue things as before his death. When she exercised her discretion in not paying the moneys she was going back on her undertaking which was part of the testators inducement to leave his estate to her. The discretionary argument failed because a secret trust is obligatory not discretionary. Mctiernan and webb JJ agreed there was a secret trust Dixin CJ dissented Secret trust then it is possible for the claimant to rely upon evidence of communications which occurred after the execution of the will. evidence from 5 different witnesses that testator would look after them and he had put it in Tom’s hands + some actions of Tom confirming those conversations were sufficient evidence of a secret trust Half secret trust The testator left the residue to 4 named people and said (to be applied in accordance with my wishes.) this means you are under an obligation – a trust. The testators sister (who was dead) had a letter and that letter did set out the testators wishes. The letter was dated after the execution of the will. No you cant rely on a letter AFTER the will was executed for half secret trusts. has to be a letter written at the same time as the will. Mutual wills “equity considers it a fraud upon the deceased, who has acted upon and relied upon the mutually binding nature of the agreement, for the survivor to change the will and break the agreement. As the deceased cannot intervene to enforce the obligation, equity will enforce the survivor’s obligation, despite the survivor’s subsequent intentions.” Evidence is civil standard and must be ‘clear and satisfactory’. the High Court found that the contract between the man and wife gave rise to a constructive trust in favour of the wife’s relatives which could be enforced against the husband’s estate. One party died leaving the mutual will in place. There is reliance on the other party to leave their will unrevoked. It operates to suppose on the survivor an enforceable obligation. To how many people the statements about the will were made. Whether the statement is in writing The consideration offered for the promise The number of times the statement was made The language used by the parties The context formal or informal The nature of the relationship between the parties The certainty of the term In this case however, largely because of the detailed notes of their lawyer, the Wrights were found to have gone “beyond trusting each would do the right thing or that each would provide fairly for the other’s children. Dispensing power Don’t look at the documents in isolation. Look at the context of everything the deceased has said and done. 1 to Rhonda his girlfriend in 1985 leaving her everything He told Ms Hill his carer he would leave his house to her and in 1992 he asked his solicitor to draft a will to that affect but refused to sign the will when brought to him. 2 when in hospital gravely ill wrote a will on a meal order form leaving Ms Hill life interest in his house. 3 On his passing Ms Hill found a will leaving her a life interest in the house. Which ones were admitted to probate. The ones scribbled in hospital on back of a meal form because he was sick and said he intended this to be his will in case he did not get around to making a formal will.

Each document is relevant. Which document did he intend to be his will. There is a difference between a document with a deceased’s wishes for what might happen- a trial run. And a document he intends to have executed. The first document was written in case I don’t get my will written. So not a will. The last one was not finished so not a will The second one in the hospital was intended for his friend he gave it to to get it executed. The deceased appears from time to time refers to various people that he had property to leave. The court may know those who are lonely or seeking attention draw attention to this property to people. Therefore, the letter was mere contemplation. Hatsouris v Hatsouris Dispensing power

Layer v burnsphilp trustee co Dempsey v Lawson 1877 UK Will of Page 1969 NSW

Estate of Johnson

Cheese v lovejoy 1877 NSW S11

Testator had five children. He drafted a codicil to leave his home to his daughter Julia, a single parent with one child who also lived with and cared for her father. The codicil was signed but not witnessed. When the other children objected, the testator drafted a fourth codicil to leave his daughter Julia a life interest rather than fee simple. neither signed nor witnessed. The court upheld the third codicil, that evidence contained elements pointing in convincing directions. The judicial dispensary provisions allow the court to recognise the ambivalence borne of the conflict between the deceased’s psychological disinclination to contemplate his own death and the rational appreciation of the need to provide for his family. Wills made in contemplation of marriage case suggests that simply a reference ‘to my wife’ might be enough if the context in the will suggests the will was made in contemplation of marriage. Must be expressly stated. Voluntary revocation -making a subsequent will no revocation clause . it was argued that as there was no revocation clause that the later will was it was only revoked where the later will was inconsistent with the earlier will. The central issue was whether the 1858 will remained in effect or whether it was revoked by the 1860 will which did not contain an express revocation clause. the 1860 will was intended to be a complete substitution of the 1858 will so 1860 will was admitted Voluntary revocation -making a subsequent will Judge – if you have a revocation clause it is clear intention to revoke the previous will but it does not stand in the way of clear evidence that the testator did not intend to revoke the previous will. The revocation clause was not evidence from which his intention could be inferred. The bottom line was that the two wills could be read together by deleting the revocation clause. If the later will was admitted to probate would not have dealt with his whole estate he would only have dealt with walter. It would have been a partial intestacy. Judge – if you have a revocation clause it is clear intention to revoke the previous will but it does not stand in the way of clear evidence that the testator did not intend to revoke the previous will. The revocation clause was not evidence from which his intention could be inferred. You can Revoke a will by writing a separate document saying I revoke my previous will. Testator had given written instructions to his solicitor to include $50 to Guinea and $100 to mr yates in his will. Testator executed another document as a will. This said if the formal will was executed prior to him paying guinea and yates and he did in fact pay them then the legacies in the will were revoked. So the 2 legacies were revoked. Although the 2 documents giving the funds to yates and guinea were legal wills there was an intention to revoke the testamentary dipositions only in that part of giving the funds to the two men. Because they had been paid Revocation -all the destroying in the world without intention will not destroy a will nor revoke a will. Nor all the intention in the world without destroying. There must be the two. You must have destruction + intention to revoke. You must have both.

(1) (e) re wright

Estate of whitely Lost will Extrinsic evidence

Alteration 14(3) NSW goods of itta

Revocation by destruction- Testator was tidying up some papers in a bag and tore up the will without looking at them properly. His widow was watching tv and the testator came into the room and gave her some papers and said I have just torn this up. You had better hang onto it as you may need it some day. The following day she looked at the paper and realized it was her husbands will and put it in her wardrobe. She and her husband were about to making new wills. They did not make new wills before the testator died. Was the will able to be remitted to probate. He did not intend to revoke his will at all. The destruction of the will was accidental. There was corroborating evidence There had been a suggestion that the doctrine of dependent relative revocation should apply. If a testator revokes a will having the intention to replace it with a new one then arguably you have not revoked your will. Your intention of revoking your will was dependent on the making of a new will. Justice Campbell said this was not the correct way of looking at dependent relative revocation because the testators act of tearing up his will was not his intention to destroy the will. . He did not intend to revoke his will at all. The destruction of the will was accidental.

a lost will is presumed revoked. unless rebutted - Presumption of destruction was rebutted In 1991 whitely had a conversation with his daughter Arky and Christoher Kuhn ( Arkys boyfriend) Arky and Christopher gave detailed evidence that they saw Whiteley write out a will. They saw the terms of the will. It appointed Arky and Kuhn as executors. The will contained specific gifts and the residue went to Arky. Arky and Christopher witnessed the will. Christopher gave evidence that he was present on a later occasion when Whitely wrote out another will with some minor detail added. Christopher witnessed the will as the only witness. Christopher and Whitely sticky taped the will to the underside of the 4th draw in the kitchen. Whitely had an ex-wife whom he did not want to be in on the secret. Christopher made a note of the contents of the will and where the will was placed in an exercise book. That is a contemporary note which is significant in evidence law. After Whitely died Christopher went to the studio to look for the will. There were remnants of the sticky tape where the will had been but the will was gone. There were other people who claimed to be beneficiaries under earlier wills like Whitely’s ex-wife. Could the contemporary notes of Christopher in the notebook be admitted to probate. Arky and Christopher gave evidence of the will. Evidence from other people that they had conversation with Whitely about the contents of the will and specifically he was worried about Arky and he was going to help her out financially. He had said that to a number of people. Justice Powell concluded that the presumption about lost wills being assumed revoked was rebutted by the evidence in this case. Because you must have destruction+ intention to destroy. So Arky got the probate of the will as per her evidence. Powell J said it could not be ruled out that somebody else had come into the studio and had removed the will. Another observation that could be made is Christopher had a contempory note about what happened. That lined up with the evidence that arky gave, he gave and others gave about the contents of the will. Whitely intended to make Arky his primary beneficiary. not valid unless executed in the same manner as a will. It is sufficient that the signature of the testator and witnesses are made in the margin or at the side of the alteration or between the lines where the alteration occurs. Where you have an alteration like a typo. This typo should be signed in the margin of the typo. Doctrine of dependent relative revocation The words were not completely unreadable but the alterations were not done properly. The testator had

DDRR

Succession Act s 11(1)(f)

Hawkins v perpetual trustee company

Estate of Brian

glued small pieces of paper over parts of her will. The amounts of money specified in particular legacies. Then she wrote other amounts over the top. While she had placed her initials next to the pieces of paper she had not had her signature witnessed. So the requirements for an alteration had not been met. However her intention was to revoke the earlier amounts and replace them with new amounts. A copy of the will with the original amounts was tendered in evidence. The judge considered whether the testator had revoked those original amounts. The doctrine of dependent relative revocation applies. Justice thought that the testator intended to revoke the original clauses only if the new clauses were validly substituted into the will. But they had not been. So the will was admitted to probate in its original form with the old sums of money. Because the revocation was conditional on the new gift being effective, which it was not, the court regards the old gift as being effective and is able to rely on extrinsic evidence (the infra-red photography) to determine the original gift Republication of a will using a codicil. A confirmation of a will by codicil means the will has been republished. The result is the will and codicil are read together as one document as at the date of the codicil. Testator made a will and 3 codicils which confirmed the prior will. Clause 5 had a series of gifts to nieces and nephews and particular legacies to WC Wood. Clause 7 residue to testators nephews and nieces particularly nephew wood who had previously been given legacies in clause 5 and in proportion to what they were given in clause 5. Testator executed a codicil. In addition to the legacies in my will I give to my nephew Charles wood and his wife 5000 shares in WT Wood holdings. Whether the legacy in the codicil a legacy before for the purposes of clause 7. If it was the division of the residue would alter significantly in Charles woods favour. If not then Charles would not share in the residue. The codicil republishes the will so the will is up to date. Both documents are to be read as one document as if they were made on the day of the republishing. Therefore WC Wood got his legacy + his share in the residue. Revival of a will S 15 NSW Republication of a will using a codicil. Testator mrs Brian made 3 testaments. 1st her son albert brian as executor, 2nd her grandson as executor, 3rd she wrote on the first will I revoke all wills made by me and the codicil is to revoke the executor of my grandson and give it to my son. did the codicil revive the first will as at the date of the codicil. Or did the second will revoke the first will. The fact that the codicil was placed on the first will exhibited an intention to revive that will.so the first will was admitted to probate.

TESTAMENTARY CAPACITY Banks v Goodfellow Capacity

Sound Mind The testator had a history of mental illness and was admitted to a lunatic asylum for a number of years. Mental illnesses wax and wane. They may sometimes have poor judgement and sometimes be lucid Subsequently the testator had delusions. But he was still able to attend to routine affairs and how much money was owed to him by his tenants. The proper inference to draw is that he was able to make a will. He understood property and finances. His will was admitted to probate. Testator must be sane mind, memory and understanding. Presumption of sound mind. The person trying to get probate is the person who has to prove capacity Whether he was having a lucid period at the time he wrote the will. The testator must be able to understand 2 things. 1/ the extent of the property being disposed of. 2/ the nature of the claims to which the will ought to give effect. And no insaneness shall influence his decisions regarding the will and bring about a decision that he would not have made had he been sane.If mental

Timbury v Coffey Alcoholic paranoia

disease exists but does not affect the making of a will then it should stand. sound Mind an alcoholic Testator suffered hallucinations, believing his wife to have been unfaithful. Because these hallucinations affected his testamentary disposition, his last Will was consequently declared to be invalid. He wrote 4 wills over one year and the 3rd will which provided for his wife was the one admitted to probate. The last will was ignored because looking at the WHOLE evidence he seemed to be a paranoid alcoholic and it cannot be proven that he was sane at the time he wrote the last will. The 3rd will seemed more in line with a rational th...