Wills and Administration of Estates - Notes PDF

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Wills and administration of estate notes from session one two and three...

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Wills and Administration of Estates: Session 1: Key concepts: - History and nature of succession - Terminology - Indigenous and Islamic law. Succession law - TOPIC 1 an intro. Definition: - A body of law that deals with the transfer transmission or distribution of a deceased persons property - whether it be real or personal. Key concepts: Death, Property Rights, and family. Succession Law - How property right moves: This happens by a Will. - Intestate - administration and probate Act 1958 (Vic) Part IA. - Family provision legislation ss90,91 and 91A of the administration and probate Act 1958 Vic. The Will: What is a Will: - The testator - The beneficiaries The executor - What is his primary duty? - What are his other duties? - What if an executor is not appointed? Applying for probate: The probate court: The purpose of a probate court is to determine the validity of the will. - Validity: How is the Validity established? - Jurisdiction: Vested in Supreme court of Victoria - Evidence: Extrinsic evidence is admissible in proving the Will. Court of construction: - Determines the meaning of words used in the Will. - Admissibility of extrinsic evidence is limited - Jurisdiction: rests with the supreme court of Victoria. Intestacy: Is when a person dies without a will. - Deceased property is distributed to beneficiaries in accordance with the A & P Act 1958 Vic part IA. - Note: Legislative changes - administration and probate and other acts amendments (succession and related matters) Act 2017. Letters of Administration - Administrator: is appointed - Duties of the administrator

Family provision legislation: - All Australian jurisdictions have power to make orders for proper maintenance and support of a deceased family members and specified others when Will or Intestacy rules make inadequate provision for them. - S91 (1) A & P Act 1958 (Vic). - This is a discretionary power - Applies to both situations will or intestate. Testamentary freedom: Testamentary freedom is the ability of an individual in a society to decide what will happen to their property after death by means of a Will or testament. - Victoria: only encumbered by a family provision legislation sees s 90, 91, 91A & P Act 1958. - Other jurisdictions: esp, civil law, Islamic and Talmudic societies there is limited or no testamentary freedom. History in common law world (testamentary freedom). - 1540 no testamentary freedom - 1800s until 20th century total testamentary freedom - 20th century onwards m introduction of family maintenance legislation (testamentary freedom curtailed to an extent) whereby crt has discretion to ‘ do justice in the individual circumstances of the case’. Family: - Key concept underlying central to wills and admin of estates law. - Definition of Family: is important because it defines the eligible participants in the schemes of distribution especially where: - Intestacy rules are applied or - An application is to be made under the family provision legislation. Definition of family is dynamic: - Children Illegitimate children: Section 3, s7 of children Act 1974 (Vic) S89 Marriage act 1961 (Vic). Adopted children: Adoption act 1984 (Vic) s 53 (1). Artificially conceived children: Status of children act 1974 (Vic) s 10C - s 10F Estate of K (1996) 5 Tas R 365. Spouse: Spouse for the purposes of succession law. - A person is a spouse of another when married in accordance with the provisions of the marriage act 1961 (Cth) or a marriage occurring elsewhere but which is recognised in Australia. - The issue of who is a spouse becomes important when a deceased dies intestate. Decree Nisi vs Decree absolute when does one stop being spouse: - Re Seaford [1968] P53 ; All Er 482 - S3 administration and probate Act 1958 Vic

Death: No death - no issue Two important considerations in death are: 1. Whether a death occurred the fact of death 2. When it occurred. The fact of death: - Can be proven by death certificate Legal definition of death: Human tissue Act 1982 (Vic) s41, a person has died where: a. Irreversible cessation of circulation of blood in the body of the person or b. Irreversible cessation of all function of the brain of the person. What is the situation where there is no corpse: a. Shipwrecks / air crashed / other disasters - A & P act 1933 Vic s 7.8 b. Re Smith (1975) 6 ALR 123 the supreme crt of NT. Mere Disappearance 7-year rule has been introduced to deal with such situations Axon v Axon (1937) 59 CLR 395 The time of death: - Decomposition - No body found - 2 or more deaths at the same time Under s 184 of the property Law Act 1958 (Vic) where circumstances of death render the order of deaths uncertain the deaths are presumed to have taken place in order of seniority. - Presumption will only apply however where the order of deaths cannot be established by sufficient proof having regard to clear preponderance of probabilities. - Re Zappullo 1966 VR 390. Dealing with the body: Registration of death and the coroner - Registration can only take place after a death certificate has been signed. - There is no obligation on any person who thinks death is suspicious in any way to report it to the coroner who may hold an inquest. Coroners Act 1985 Vic ss3 , 15. - Body cannot be disposed of by burial or cremation unless a death certificate or an equivalent order authorising the disposal of the body has been made. Coroners Act 1985 Vic s23. Role of the legal personal representative with respect to the disposal of the dead body: Where there is an executor: - Williams v Williams (1882) 20 Ch D 659. - R v Fox 1841 2 QB 246 - Robertson v Pingrove memorial park ltd (1986) 7 BPR. Where there is no executor: R v Stewart 1840 12 Ad & E 773: 113 ER 1007 Warner v Levitt (1994) BPR 15, 110.

Session 2: boundaries of wills and administrations of estates law Key concepts: -

Wills distinguished from other transactions / Relationships Donation Mortis Causa Contracts and Wills

What property of the deceased can be the subject of succession law? Wills - Intention - In writing, singed and witnessed - Death of testator - Beneficiary - Property disposed of Wills vs other transactions / relationships: - What is a document will? - What is not a will? Testamentary disposition vs inter vivos transactions: a. The testamentary v inter vivos transactions A testamentary transactions is intended to operate from the moment of death , Russell v Scott ( 1936) 55 CLR 440 at 454. - An inter vivos gift is intended to operate from the moment the gift is made. This transaction is therefore Not a will because it confers an immediate interest b. Jointly owned property: - A deceased’s interest in jointly owned property does not form part of his or her estate. Russell v Scott (1936) 55 CLR 440. Calabrese v Miuccio [184] 1 Qd R 430. Covenants: Covenants for disposition on death - A covenant is a promise in deed. - May or may not be admitted as a will - Case by case Nominations: Life insurance: - In nature only not testamentary Superannuation/ pension schemes: - If the interest in the fund is non - assignable and or where the power of nomination requires approval of the trustees of the scheme then in general the nomination will be non-testamentary as funds are outside the control of the employee. - But where they remain in his control e.g. by such factors as full power of disposition during the employee’s lifetime , then generally the nomination will be testamentary and will require compliance with the formalities. Baird v Baird 1990 2 WLR1412 Re Maclnness 1935 1 DLR 401

Revocable gifts: Donation mortis causa - A revocable gift - Not bound by rules of formality that apply for wills - Consequence Elements: - The gift must be made in contemplation of the donors death. Samllcombe v Elders Trustee Co ltd 1963 War 3. - The gift must be conditional upon the death of the donor. Harness v Public Trustee 1940 40 SR NWS 414. - The donor must be part with dominion over the subject matter of the gift Woodward v Woodward [1995] 3 All ER 980. Birch v Treasury Solicitor [1951] Ch 298 Public Trustee v Bussell (1993) 30 NSWLR 11

Sen v Headley [1991] 2 WLR 130 Contracts involving wills: It is possible to make a binding contract in relation to a will Look at contractial principles i.e. intention , consideration 1. Contracts to leave specific property. Schaefer v Schuhmann 1972 AC 572 2. Contracts to leave residue Palmer v Bank of NWS 1975 133 3. Contracts not to revoke wills A promise not to revoke a will is a valid contract. 4. Contracts and family provision claims Schaefer v Schuhmann 1972 AC 572 Mutual wills: - Where 2 or more person have made an agreement as to the disposal of their property through wills and each has in accordance with the agreement executed a will. - A term in the agreement is that the wills are not revoked Birmingham v Renfrew 1937 57 CLR 666 Proof mutual wills: - Need proof of agreement - By law if a person remarried a will is automatically revoked Osborne v Estate of Frederick Osborne and Daisy Osborne 2001 VSCA 228 Joint wills: - Wills made by more than one person but on one document - Each person dies it will be admitted to probate as their will that is one document will operate as a separate will of each testator. The rule against delegation of testamentary power: Testator must not delegate his or her testamentary power Horan v James 1982 2 NSWLR 376 Wills Act 1997 sect 48. Whether or not a testator has delegated such power depends on the type of appointment made. General power: holder of the power may appoint anyone in the world including themselves Special power: may appoint anyone from a group

Hybrid power: may appoint anyone expect to someone from a group

Session 3A: the mental elements and statutory wills Key concepts: -

Sound, mind and understanding Time Testamentary intention

Matters affecting the will: Capacity to make a will - Age - Sound mind, memory, understanding - The legal definition re: Banks v Goodfellows 1870 Insane delusions - Cannot be severed - Bull v Fulton 1942 - Woodhead v Perpetual trustee Co ltd 1986 Time for determining capacity: General rule: a testator must have required capacity at the time of execution of the will. Parker v Felgate 1883 Batten Singh v Armichard 1948 Testamentary intention: - Before document can be admitted to probate as a will, it is necessary to establish that the testator intended the will to operate as his or her will. - What must be shown by those who propound the will is that the deceased intended the document to operate on death as his or her final disposition Estate of Knibbs 1962 2 All ER 829. Knowledge and approval: - To be valid, the provisions in a will must be known and approved of by the testator who is exercising his or her free will. This comes from the doctrine of testamentary freedom. - Legal burden of proof lies on the propounded of the will to show that the testator made the will because of his own intelligence and volition that he knew and approved the will. - When there is proof that the testator had testamentary capacity and the will was duly executed then in the absence of suspicious circumstances, knowledge and approval will be presumed. Suspicious circumstances: - If there is evidence of suspicious circumstances surrounding the execution of the will, such as suspicion must be removed before the will can be admitted to probate - If there are suspicious circumstances surrounding the execution of a will, the court is required the suspicion to be dispelled in the sense that the testator knew and approved the contents of the will. - No allegations of undue influence or fraud need to be raised. When are suspicious circumstances created: i. A will prepared by a beneficiary a. In circumstances where a party who takes a benefit wrote or prepared a will is one that arises suspicion and calls for the anxious and vigilant examination by the court, but the rule does not go further than requiring vigilance. It does not operate as a disqualification. Nock v Austin 1918 25 CLR 519; 25 ALR 88 , Wintle v Nye 1959 1 All Er 552.

b. The same rule applies where the benefit goes not to the drafter of the will but to a person close to them or where the instructions are taken by an intermediary who will take a benefit, even though the intermediary takes no part in the preparation of the will. Singh v Armichand 1948 AC 161 c. Suspicious circumstances are limited to those surrounding execution of the will - relating directly to the knowledge and approval of the testator at the time. they do not extend to circumstances after execution or the death of the testator. Thompson v Bella Lewis 1997 1 Qd R 429. d. A solicitor who is also a beneficiary must ensure that the testator gets independent legal advice before making the will and must ensure that the advice is indeed taken. Smith v O’Neill 2014 NSWC 1119. The testator is enfeebled, illiterate or blind. ii. - In such a situation a court may not grant probate unless there is affirmative proof of knowledge and approval. - May be able to show this by proving that the testator had the will read to him or her that the will was in fact read by him or her BUT the actual reading must be such that it established the testator both hears and understands what is read. Fulton v Andrew 1875 7 HL 448. Severance: In cases where only certain parts of the will are affected by suspicious circumstances those benefits arising from the affected part will be omitted from the will. - The whole will is not made invalid. Undue influence: - Undue influence means coercion Test: must show that the testator is coerced into making a will or part of a will which he or she does not wish to make. - Coercion needs to be distinguished from mere persuasion. Only actual coercion will invalidate a will. - The crucial element is freedom of choice Wingrove v Wingrove Consequence of Undue influence: - Where it is proved that the whole will was induced by undue influence then that whole will be invalid. - Where it is shown that only part of the will is affected then that part may be severed, and the rest of the will can be admitted to probate. Re: Allen v McPherson 1846 1 HLC 191 at 209. Fraud: - Unlike undue influence where a person coerced a testator into making a will that he or she did not wish to make fraud misleads the testator. - Where fraud is alleged the onus of proof is on those that allege it. - Where fraud is found to affect the whole will then probate of the will, not be granted. - Where fraud affects only part of a will that part can be severed leaving the rest of the will intact and may be admitted to probate.

Burden of proof:

Once the propounder of a will establishes a prima facie case of sound mind and memory and understanding with reference to a particular will, for capacity may be either absolute or relative then the onus probandi lies upon the part impeaching the will to show that it ought not be admitted to proof. Statutory wills: 1. Wills can be made for those lacking testamentary capacity: Purpose: - Beneficiaries on intestacy are not appropriate - Housekeepers - Moral claims - Where a person may not be entitled on intestacy - Re: Davey 1981 3 All ER 342. Note: even if a person lacking testamentary capacity had made a prior will, having capacity at the time that will no longer be appropriate. - Monger v Taylor 2000 VSC 304 - Boulton v Sanders 2004 VSCA 112 11 June 2004. - s 21-30 Wills Act 1997. The proposed will , alteration or revocation is one which might be one that would have been made by the proposed testator if the person was not lacking testamentary capacity. - S21B Wills Act 1997 Vic. It is reasonable in all circumstances that an order be made Boulton v Sanders 2004 9 VR 495.

Session 3B: The formal requirements. Key concepts: - Writing - Signed by a testator and 2 witnesses - Each witness signs in presence of the testator The purpose of formalities: - To provide proof of what the testator intended - The formalities emphasize the solemnity of the testamentary act. - The formal requirements tend to discourage undue influence, forgery, fraud, and impropriety - Formalities standardise testamentary activity to a form that is readily recognisable. In this way litigation can be reduced. - When the strict requirements for admitting a will to probate have been met only then can the court be satisfied that the administration or the estate will be carried out in accordance with the deceased intention. Formalities: - Strict formalities can sometimes override a testator’s clear intentions. Re Collins 1972 3 All ER 729. - To overcome such problems all Australian jurisdictions now possess judicial dispensing powers that allow the courts to dispense with the strict formalities in certain defined circumstances. What are the formalities The will must be in writing and signed by a testator or by some other person, in the presence of and at the direction of the testator. - The signature is made with the testator’s intention of executing a will , whether or not the signature appears at the foot of the will. - The signature is made or acknowledged by a testator in the presence of two or more witnesses present at the same time.

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At least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in presence of each other. Section 7 (1) (a) - (d) of the wills act 1997 Vic. The requirement of writing: - For a will to be valid, it must be in writing - What is writing - Interpretation of legislation Act 1984 Vic s38d - No restriction as long as in written form - Can include foreign languages code. What is written on can include doors and tractor fenders. Estate of Slavinskyji 1988 53 SASR 221 In estate of Harris 1948 Can Bar Rev 1242 In the goods of Adams 1872 LR 2P & D 367 The requirements of a signature: - Section 7 (1)(a) of the wills act 1997 Vic states that they will be in writing and signed. - Courts have interpreted this wording liberally - Test: the testator must place some mark on the will with the intention it be a signature whether what has been written by the testator was written by him as an authentication of what precedes it as his will. - RE Male 1934 VLR 318 at 320. - Dodd v Lang (Supreme court of NSW, unreported decision, 20 July 1989). The meaning of in the presence of and at the direction of the testator - S 7 (1)(a) provides that the will can be signed by some other person for the testator provided the signing in the presence of and at the direction of the testator. The position of the signature in the will. - The original requirements for the execution of a will required the testator to sign the will at the foot or end of the will. - In Victoria this requirement has now been relaxed s 7 (1) (b) of the wills Act 1997 Vic. a. End in space, time, or intention - The case of in the goods of Hornby illustrates the desire of some courts to give effect to signatures that have not been correctly placed. b. Wills on more than one page. - Problems are caused where there is a multiple page will. Cinnamon v Public Trustee Tas 1934 51 CLR 403. c. Signature of the back of the will. - A problem that has arisen in several cases concerns a will that is recorded on the In Will of Spence, 91969 ) 89 wn Pt 1 NWS 641 d. Wills in envelopes - In cases where there is an un signed will which has been placed in a signed envelope the courts have generally held that they are capable of together constitution a will. In good of Mann 1942 P 146 In the Estate of, Bean 1944 P83 -

Signing or acknowledgment of signature in presence of two witnesses S 7 (1)( c ) of the wills Act 1997 Vic. A will is not valid unless ( c ) the signature is made or acknowledged by testator in presence of two or more witnesses present at the same time.

a. b. -

Made or acknowledged The testator must sign the will in the presence of two or more witnesses In the presence of The two witnesses must be present both physically and mentally. They cannot be intoxicated of sound mind or asleep or blind. Re colling; Lawson v Von Winckler 1972 3 All ER 729 c. At least two witnesses attest and sign the will - The witnesses must attest certify the truth and sign the will in the presence of the testator but not necessarily in each other’s presence. ...