Law of succession [Second edition.] 9780409347357, 0409347353

Table of contents :
Full Title
Copyright
Preface
Table of Cases
Table of Statutes
Abbreviations
Table of Contents
Prologue: Context and Overview
Part I: Wills and Intestacy
1. Nature of a Will
2. Mental Elements
3. Statutory Wills
4. Formal Elements
5. Revocation and Amendment of Wills
6. Republication and Revival of Wills
7. Gifts by Will
8. Construction of Wills
9. Intestacy
Part II: Personal Representatives
10. The Office of Personal Representative
11. Grants of Representation
12. Duties of Personal Representatives
13. Powers and Entitlements of Personal Representative
14. Allocation and Distribution of Estate
Part III: Family Provision
15. Concept of Family Provision
16. Eligibility to Apply for Family Provision
17. Applications for Provision
18. Particular Classes of Applicants
19. Relevant Considerations in Making Order
20. Family Provision Orders
Part IV: Miscellaneous Matters
21. A Statutory History of Wills in England and Australia
22. Conflicts of Law in Succession
23. Costs in Matters Involving Deceased Estates
24. Succession Lawyers’ Responsibility and Liability
Index

Citation preview

Law of Succession Second Edition G E Dal Pont B Com, LLB (Hons), LLM, LLD, CPA, FCL, FAAL Professor, School of Law, University of Tasmania

K F Mackie LLB (Hons) University Associate, School of Law, University of Tasmania

LexisNexis Butterworths Australia 2017

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Notes: Subjects: Other Authors/Contributors:

Dal Pont, G E (Gino Evan). Law of succession. 2nd edition. 9780409347340 (hbk). 9780409347357 (ebk). Includes index. Inheritance and succession — Australia. Wills — Australia. Probate law and practice — Australia. Estates (Law) — Australia. Mackie, Ken.

© 2017 Reed International Books Australia Pty Limited trading as LexisNexis. First edition, 2013. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Goudy. Printed in China.

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Preface An Australian succession law expert has branded this area of law as ‘one of the slower moving waterways of jurisprudence’.1 Yet this observation, which has considerable truth to it, has not translated to a stemming in the flow of litigation over deceased estates. Producing the second edition of this work has involved the reviewing of hundreds of cases, mainly from Australia but, as with the first edition, by no means so confined. The main statutory change since the first edition has ensued in Victoria, which after years of experimenting with a more open standing approach to family provision, has reverted to a categorybased approach,2 although the extent to which this will stem litigation remains a moot point. Since the first edition, moreover, statute in each jurisdiction has given effect to the law on international wills.3 This edition has been written by Gino Dal Pont. Ken Mackie reviewed the manuscript so prepared, and made various suggestions directed to its improvement. We take the opportunity to thank Georgina Gordon from LexisNexis Butterworths for commissioning and managing the project, and Georgia O’Neill for her excellent editorial and proof-reading work. We also are indebted to Professor Stefan Petrow, School of Humanities, University of Tasmania, for updating his substantial chapter on the history of wills. The staff of the University of Tasmania Law Library likewise deserve acknowledgement for their untiring assistance in securing access to relevant material. This edition is current to 20 February 2017. Shortly thereafter McMillan J delivered useful judgments on domicile in probate cases4 and the forfeiture rule,5 and Darke J addressed the topic of priority in payment of estate debts.6 Each of these judgments will feature in the third edition of this work. G E Dal Pont K F Mackie Hobart

20 March 2017

1. 2. 3. 4. 5. 6.

R F Croucher, ‘How Free is Free? Testamentary Freedom and the Battle Between “Family” and “Property”’ (2012) 37 Aust J Leg Phil 9 at 27. Pursuant to amendments effected by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic), as from 1 January 2015: see 16.52. See 22.20. Re Tang [2017] VSC 59; BC2017000991 (the topic being addressed generally in Chapter 22). Re Kumar [2017] VSC 81; BC201701220 (the topic being addressed at 7.47–7.70). Winn v Harding [2017] NSWSC 239; BC201701572 (the topic being addressed at 14.7, 14.8).

Table of Cases References are to paragraph numbers A Aaron v Griffiths [2008] WASC 26 …. 4.36 AB v RT [2015] NZHC 3174 …. 17.48, 20.44 Abbott v Middleton (1858) 7 HLC 68; 11 ER 28 …. 8.4, 8.6 Abergavenny’s (Marquess) Estate Act Trusts, Re [1981] 2 All ER 643 …. 13.15 Able Australia Services v Yammas [2010] VSC 237 …. 2.30 Aboud v Aboud [1960] NSWR 498 …. 8.19 Abrahams, Re [1908] 2 Ch 69 …. 14.25 Abrahams’ Will Trusts, Re [1969] 1 Ch 463 …. 2.80 Abrahams v Abrahams (2015) 13 ASTLR 406; [2015] QCA 286 …. 20.32, 20.33 Abrego v Simpson [2008] NSWSC 215 …. 23.37 Ackerley v Felton [2012] NSWSC 1468 …. 2.14, 4.34, 4.46, 11.44 Acland v Gaisford (1816) 2 Mad 28; 56 ER 245 …. 12.54 Adam, Re Estate of [2013] SASC 70 …. 9.67 Adamow, Re (1989) 97 FLR 410 …. 17.4 Adams, In the Goods of (1872) LR 2 P & D 367 …. 4.5 Adams, Re (1905) 24 NZLR 892 …. 13.70 Adams, Re [1967] VR 875 …. 18.20 Adams, Re [1990] Ch 601 …. 5.48, 5.49 Adams v Buckland (1705) 2 Vern 514; 23 ER 929 …. 10.82 — v Perpetual Trustee Co (Ltd) (1964) 114 CLR 527 …. 8.64, 8.66 Adams (deceased), Re [1967] VR 881 …. 18.23 Adamson, In the Goods of (1875) LR 3 P & D 253 …. 10.8 Adcock, In the Will of (1904) 26 ALT 127 …. 11.25 Adkins v Adkins [2009] TASSC 32 …. 23.26

Adler, In the Estate of (1989) 155 LSJS 53 …. 11.17 ADT v LRT [2014] QSC 169 …. 3.20 Affoo v Public Trustee of Queensland [2012] 1 Qd R 408; [2011] QSC 309 …. 17.13, 20.32 Agnew v Belfast Banking Co [1896] 2 IR 204 …. 1.16 Ahchay, Re the Will of (1996) 6 Tas R 369 …. 8.51 Aiken v Stewart Wrightson Members’ Agency Ltd [1995] 3 All ER 449 …. 14.16 Ainsworth, Re [1915] 2 Ch 96 …. 14.44 Akerman, Re [1891] 3 Ch 212 …. P.11, 14.24 Akkerman v Ewins [1999] NSWCA 386 …. 17.70, 17.71 Alabakis v Alabakis [2012] VSC 437 …. 19.18 Albert (deceased), Re [1967] VR 875 …. 11.87 Aldrich v Attorney-General [1968] P 281 …. 22.4 — v Cooper (1803) 8 Ves 382; 32 ER 402 …. 14.18 Aleksejevs (deceased), Re [1966] VR 188 …. 11.60 Alexander v Jansson [2010] NSWCA 176 …. 15.12, 16.28, 16.29, 17.68, 17.73, 19.33 Alexander’s Will Trust, Re [1948] 2 All ER 111 …. 8.34, 8.39 Aliperti v Official Trustee [2000] NSWSC 315 …. 11.54 Allan, In the Estate of (SC(NSW), Needham AJ, 24 September 1990, unreported) …. 4.43 Allan v Allan [2001] VSC 242 …. 18.27, 19.5 — v Morrison [1900] AC 604 …. 11.20 Allan (deceased), In the Will and Estate of [1912] VLR 286 …. 11.43 Allardice v Allardice (1910) 29 NZLR 959 …. 15.12, 15.14, 17.62 Allen, Re [1922] NZLR 218 …. 15.19 Allen v Dundas (1789) 3 Tr 125; 100 ER 490 …. 11.4, 11.109 — v Maddock (1858) 11 Moo PC 427; 14 ER 757 …. 4.61, 4.67 — v M’Pherson (1847) 1 HL Cas 19; 9 ER 727 …. 2.47, 2.51, 2.54, 2.58 — v Union-Fidelity Trustee Co of Australia Ltd (1986) 6 NSWLR 341 …. 13.78 Allen (deceased), Re (1921) 41 NZLR 218 …. 17.62 Allen’s Estate, Re [1945] 2 All ER 264 …. 22.34 Alleyn (deceased), Re [1965] SASR 22 …. 8.13, 8.29, 8.39 Allgood v Blake (1873) LR 8 Exch 160 …. 8.6, 8.39

Allhusen v Whittell (1867) LR 4 Eq 295 …. 14.42 Allsop (deceased), Re [1968] Ch 39 …. 8.10 Alquist v ANZ Executors and Trustee Company Ltd [2004] NSWSC 1116 …. 16.36, 18.32 Altson v Equity Trustees, Executors and Agency Co Ltd (1912) 14 CLR 341 …. 13.4 Alymore (deceased), Re [1971] VR 375 …. 22.4f1994) 35 NSWLR 51 Amicable Assurance Society v Bolland (1830) 4 Bli (NS) 194; 5 ER 70 …. 7.47 Amos v Amos [1966] VR 442 …. 17.36 Amprimo v Wynn [2015] NSWCA 286 …. 16.20, 16.21 Amyot v Dwarris [1904] AC 228 …. 8.48 Anasson v Phillips (SC(NSW), Young J, 4 March 1988, unreported) …. 19.7 Anderson, Re (1864) 3 Sw & Tr 489; 164 ER 1365 …. 11.46 Anderson, Re (1953) 53 SR (NSW) 520 …. 12.50 Anderson, Will of (1958) 78 WN (NSW) 334 …. 4.26 Anderson v Anderson (1872) LR 13 Eq 381 …. 4.54, 6.9 — v Dupain [2013] NSWSC 108 …. 7.2 — v Teboneras [1990] VR 527 …. 17.4, 17.81, 18.26 Anderson (deceased), Re (1975) 11 SASR 276 …. 17.70, 19.33 Andre v Perpetual Trustees WA Ltd [2009] WASCA 14 …. 15.11, 17.22, 17.24, 17.37 Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 …. 17.57, 17.80, 19.15, 19.18, 19.19 Andrews, Re [1902] 2 Ch 394 …. 1.25 Andrews v Hogan (1952) 86 CLR 223 …. 11.74 — v Partington (1719) 3 Bro CC 401; 29 ER 610 …. 8.62 Andrews (deceased), Re (1936) 56 CLR 1 …. 8.16, 9.4 Angerstein v Martin (1823) Turn & R 232; 37 ER 1087 …. 14.28 Angius, Estate of [2013] NSWSC 1895 …. 4.38 Angullia v Estate and Trust Agencies (1927) Ltd [1938] AC 624 …. 12.15, 12.16 Ansett v Moss [2007] VSCA 161 …. 17.28 Ansett Australia Ground Staff Superannuation Plan Pty Ltd (ACN 065 590 178) v Ansett Australia Ltd (ACN 004 209 410) (2004) 49 ACSR 1; [2004] FCA 130 …. 13.31 Anslow v Journeaux [2009] VSC 250 …. 18.3

Anstey v Mundle [2016] WTLR 931; [2016] EWHC 1073 …. 12.7 Antill-Pockley v Perpetual Trustee Co Ltd (1974) 132 CLR 140 …. 8.50 ANZ Trustees Ltd v Hamlet [2010] VSC 207 …. 2.65 Anziani, Re [1930] 1 Ch 407 …. 1.3 Aoun v Clark [2000] NSWSC 274 …. 5.15 APK v JDS (2012) 267 FLR 478; [2012] NTSC 96 …. 2.14, 4.34, 4.36 Applebee, Re [1891] 3 Ch 422 …. 14.21 Appleton, Re (1885) 29 Ch D 893 …. 13.66 Aravanis v Kelly [2012] NSWSC 733 …. 11.105 Arbuz v Sanderson (SC(NSW), Waddell J, 24 March 1986, unreported) …. 11.26 Archer, Re [1990] 3 NZLR 737 …. 1.38 Archibald, Re [1992] 2 NZLR 109 …. 5.6, 6.13 Ardern, In the Goods of [1898] P 147 …. 10.24 Armitage v Nurse [1998] Ch 241 …. 12.47 Armstrong v Children’s Hospital at Westmead [2008] NSWSC 1315 …. 7.10, 14.3 — v Sloan [2002] VSC 229 …. 18.15, 18.16 Arnott v Kiss [2014] NSWSC 1385 …. 7.11, 9.5 Aroso v Coutts & Co [2002] 1 All ER (Comm) 241; [2001] EWHC 443 …. 1.14 Ashhurst v Moss (2006) 14 VR 291; [2006] VSC 287 …. 17.37 Ashton, Re [1892] P 83 …. 8.8 Askew v Askew [2015] NSWSC 192 …. 20.15, 23.35 Aslan v Kopf (CA(NSW), 16 May 1995, unreported) …. 1.36 Aspland v Tsakalakis (2012) 7 ASTLR 1; [2012] WASC 35 …. 12.1 Assim, Re Estate of the late (2015) 106 ACSR 544; [2015] NSWSC 337 …. 11.56, 11.57 Astridge v Pepper [1970] 1 NSWR 542 …. 2.27, 11.29 Atherton, In the Goods of [1902] P 104 …. 11.38 Atkins v Godfrey [2006] WASC 83 …. 13.44, 13.50, 13.63, 13.64 Atkinson (deceased), Re [1936] NZLR 34 …. 10.7 Atkinson (deceased), Re [1971] VR 612 …. 12.11, 13.36, 13.37 Attenborough v Solomon [1913] AC 76 …. 10.44, 10.45, 10.46, 10.47, 10.49, 10.51 Atter v Atkinson (1869) LR 1 P & D 665 …. 2.28

Atthow v McElhone [2010] QSC 177 …. 17.20, 17.21, 18.31, 18.35 Attorney-General v Holbrook (1823) 12 Price 407; 147 ER 761 …. 14.20 Attorney-General v Jackson [1932] AC 365 …. 14.10, 14.13, 14.16 Attorney-General v National Provincial and Union Bank of England [1924] AC 262 …. 2.79 Attorney-General v New York Breweries Co Ltd [1898] 1 QB 205 …. 11.79 Attorney-General v Thompson (1712) Prec Ch 337; 24 ER 158 …. 14.37 Auckland City Mission v Brown [2002] 2 NZLR 650 …. 17.66, 18.1 Austin v Austin (1906) 3 CLR 516 …. 12.2 Australian Executor Trustees Ltd v Casanova [2005] SASC 93 …. 2.68 Axford (deceased), Re (1860) 1 Sw & Tr 540; 164 ER 851 …. 2.34 Axon v Axon (1937) 59 CLR 395 …. 11.7 B Badenach, In the Goods of (1864) 3 Sw & Tr 465; 164 ER 1356 …. 10.60, 10.65 Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 …. 24.41, 24.42 Baes (deceased), Re Estate of [2012] SASC 217 …. 5.47 Bagot, Re [1893] 3 Ch 348 …. 7.10 Bagshaw v Pimm [1900] P 148 …. 23.19 Bahouse v Negus [2012] WTLR 1117; [2008] EWCA Civ 1002 …. 17.75 Bail v Scott-Mackenzie [2016] VSC 563 …. 18.45 Bailey, In the Goods of (1838) 1 Curt 914; 163 ER 316 …. 4.7 Bailey v Bailey (1924) 34 CLR 558 …. 2.13, 2.14, 2.16, 2.20 Bailey v Public Trustee [1960] NZLR 741 …. 18.13 Bailey v Richardson [2015] VSC 255 …. 3.3 Bain v Morabito (SC(NSW), Powell J, 14 August 1992, unreported) …. 7.53, 10.23, 10.71 Baird v Baird [1990] 2 AC 548 …. 1.12 — v Harris [2015] NSWSC 803 …. 19.34 — v National Mutual Trustees Ltd (SC(Vic), Harper J, 22 November 1995, unreported) …. 15.22 — v Smee [2000] NSWCA 253 …. 1.42, 1.43 Baker v Batt (1838) 2 Moo PCC 317; 12 ER 1026 …. 2.28, 2.29 — v Williams [2007] QSC 226 …. 20.9 Baker (deceased), Re [1962] NZLR 758 …. 18.44

Balajan v Nikitin (1994) 35 NSWLR 51 …. 22.37 Baldwin v Greenland [2007] 1 Qd R 117; [2006] QCA 293 …. 11.94, 11.95, 11.98, 11.100, 11.104 Balkin v Peck (1998) 43 NSWLR 706 …. 14.51 Ball v Newey (1988) 13 NSWLR 489 …. 16.28, 17.71 Ballard v Marsden (1880) 14 Ch D 374 …. 14.25 Bank of Credit and Commerce International SA (No 8), Re [1998] AC 214 …. 14.18 Banks v Goodfellow (1870) LR 5 QB 549 …. 2.2, 2.5, 2.7, 2.11, 2.12, 2.14, 2.19, 11.14, 15.11, 17.62 — v National Westminster Bank [2005] EWHC 3479 …. 7.35 Banks (deceased), In the Estate of [1966] SASR 290 …. 8.46 Bannon (deceased), Re Estate of [2014] SASC 12 …. 13.12, 14.29 Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 …. 24.10 Banyard v Duirs [2013] WASC 146 …. 10.58 Barber, Re (1886) 31 Ch D 665 …. 4.55 Barber, Re (1887) 34 Ch D 77 …. 13.72 Barber (deceased), Re [1924] VLR 123 …. 14.61 Barker v Linklater [2007] QSC 125 …. 16.16 — v Parker (1786) 1 TR 287; 99 ER 1098 …. 13.22 — v Peile (1865) 2 Dr & Sm 340; 62 ER 650 …. 10.80 Barker (deceased), In the Matter of [1995] 2 VR 439 …. 5.3, 5.5, 22.25 Barlevy v Nadolski [2011] NSWSC 129 …. 16.20 Barlow (deceased), In the Will of [2014] QSC 7 …. 2.14 Bar-Mordecai v Hillston [2004] NSWCA 65 …. 16.9, 16.10, 16.20 — v Rotman (SC(NSW), Einstein J, 4 September 1998, unreported) …. 10.23, 10.24 Barnes’s Will Trusts, Re [1972] 2 All ER 639 …. 8.12 Barnett (deceased), In the Will of [1919] VLR 524 …. 8.20 Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 …. 1.45, 15.9, 19.44, 19.45, 20.3, 20.4 Barnsley v Noble [2016] WTLR 1501; [2016] EWCA Civ 799 …. 12.57 Barraclough (deceased), Re [1967] P 1 …. 11.32 Barrance, Re [1910] 2 Ch 419 …. 8.1 Barrett, In the Will of (1876) 2 VLR (I) 98 …. 5.10

Barrett v Bem [2012] Ch 573; [2012] EWCA Civ 52 …. 4.7 Barrot, Re [1953] VLR 308 …. 17.24, 17.37, 17.43 Barrowcliff, Re [1927] SASR 147 …. 7.48, 7.58, 7.66, 7.67 Barry v Butlin (1838) 2 Moo PCC 480; 12 ER 1089 …. 2.28, 2.30, 2.48, 11.14, 24.22 Barry (deceased), Re (1974) 9 SASR 439 …. 17.26 Bartholomew v Henley (1820) 3 Phill 137; 161 ER 1337 …. 1.7 Bartkus v Bartkus [2010] NSWSC 889 …. 23.30 Bartlett v Barclays Bank Trust Co Ltd (Nos 1 and 2) [1980] Ch 515 …. 12.3, 12.48, 12.54 — v Coomber [2008] NSWCA 100 …. 20.33 Barton, In the Goods of [1898] P 11 …. 10.12 Basan v Brandon (1836) 8 Sim 171; 59 ER 68 …. 7.34 Baskome v Harrison (1849) 2 Rob Ecc 118; 163 ER 1262 …. 11.25, 11.26 Basterfield v Gay (1994) 3 Tas R 293 …. 16.39, 16.46 Basto v Basto (SC(NSW), Hodgson J, 8 September 1989, unreported) …. 17.37 Bate (deceased), Re [1947] 2 All ER 418 …. 11.85 Bateman, Will and Estate of [2011] VSC 277 …. 4.39 Bateman v Pennington (1840) 3 Moo PC 223; 13 ER 95 …. 4.6 Bateman’s Will Trusts, Re [1970] 3 All ER 817 …. 4.66 Bates v Cooke [2015] NSWCA 278 …. 18.29 — v Cooke (No 2) [2014] NSWSC 1322 …. 23.33 — v Messner (1967) 67 SR (NSW) 187 …. 10.68, 11.95 Batey v Potts (2004) 61 NSWLR 274; [2004] NSWSC 606 …. 7.68 Bath v British & Malayan Trustees Ltd [1969] 2 NSWR 114 …. 11.39, 11.42, 22.7, 22.11 Bathern, Re [1941] SASR 266 …. 2.24 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 …. 4.77 Battan Singh v Amirchand [1948] AC 161 …. 2.20 Baumgartner v Baumgartner (1987) 164 CLR 137 …. 7.55 Baychek v Baychek [2010] NSWSC 987 …. 23.33, 23.35 Bayer v Wiltshier (HC(NZ), Anderson J, 21 July 1998, unreported) …. 1.49 Bayes-Walker v Bayes-Walker [2011] WTLR 1143; [2010] EWHC 3142 …. 11.8 Baylis, In the Goods of (1862) 2 Sw & Tr 613; 164 ER 1135 …. 11.38

Bayliss v Public Trustee (1988) 12 NSWLR 540 …. 1.27 Bayssari v Bazouni [2014] NSWSC 910 …. 16.20, 16.25 Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207; [2010] QSC 118 …. P.8 Beadle (deceased), Re [1974] 1 All ER 493 …. 4.10, 4.16 Beames (deceased), Re (1979) 22 SASR 595 …. 7.32 Bean, In the Estate of [1944] P 83 …. 4.10 Beard, Re [1963] Qd R 90 …. 19.50 Bearnes v Bearnes-Hayes (SC(NSW), Young J, 7 May 1997, unreported) …. 17.32 Bearns v Bearns-Hayes (SC(NSW), Young J, 6 May 1997, unreported) …. 20.78 Beatty’s Will Trusts, Re [1990] 3 All ER 844 …. 2.80 Beaumont, Re [1902] 1 Ch 889 …. 1.15 Beaumont v Fell (1723) 2 P Wms 141; 24 ER 673 …. 8.39 Beaumont (deceased), Re [1980] Ch 444 …. 16.53 Bechara v Bechara [2016] NSWSC 513 …. 4.4, 4.15, 4.39 Beckbessinger, Re [1993] 2 NZLR 362 …. 4.74 Becker v Public Trustee of New South Wales [2006] NSWSC 1146 …. 23.13 Beckford v Tobin (1749) 1 Ves 308; 27 ER 1049 …. 14.32, 14.36, 14.37, 14.38 Beckham v Drake (1849) 2 HL Cas 579; 9 ER 1213 …. 11.83 Bedake, Re (2015) 300 FLR 63; [2015] ACTSC 267 …. 22.13 Beddoe, Re [1893] 1 Ch 547 …. 13.36, 13.40 Beech (deceased), In the Estate of [1923] P 46 …. 2.22, 2.56 Beeson v West Australian Trustee, Executor and Agency Company Ltd (1929) 31 WALR 108 …. 11.110 Belcastro v Belcastro [2004] WASC 111 …. 4.34 Belcher, Re [2010] NSWSC 382 …. 11.38 Belfield v Belfield (2012) 83 NSWLR 189; [ 2012] NSWCA 416 …. 20.59 Bell v Armstrong (1822) 1 Add 365; 162 ER 129 …. 11.30 — v Fothergill (1870) LR 2 P & D 148 …. 5.10 — v Georgiou [2002] WTLR 1105 …. 2.64 — v Timiswood (1812) 2 Phill 22; 161 ER 1066 …. 10.40 Bellasis v Uthwatt (1737) 1 Atk 426; 26 ER 271 …. 7.86 Bellew v Bellew (1865) 4 Sw & Tr 58; 164 ER 1437 …. 11.50

Benjamin, Re [1902] 1 Ch 723 …. 9.18, 11.7, 14.59 Benjamin v Leicher (1998) 45 NSWLR 389 …. 14.21 Benjamin (deceased), Re Estate of [2016] SASC 84 …. 10.73 Bennet (deceased), Re [1957] VR 113 …. 8.42 Bennett, Re [1909] VLR 205 …. 23.26 Bennett, Re (2006) 1 ASTLR 199; [2006] QSC 250 …. 11.9 Bennett v Bennett [2012] VSC 234 …. 17.43 — v Morandin (SC(NSW), Bryson J, 31 August 1995, unreported) …. 9.82 Bennett (deceased), Re Estate of [2012] VSC 158 …. 18.46 Benney v Jones (1991) 23 NSWLR 559 …. 16.24, 17.63 Benson v Maude (1821) 6 Madd 15; 56 ER 994 …. 14.27 Bentley v Brennan [2006] VSC 113 …. 15.22, 16.47, 16.48, 17.64, 17.79 — v — (No 2) [2006] VSC 226 …. 23.24, 23.30 Bercovitz (deceased), In the Estate of [1962] 1 All ER 552 …. 11.19 Berger (deceased), Re [1990] Ch 118 …. 1.3, 4.5 Berkeley v Berkeley [1946] AC 555 …. 6.2 Best v Stonehewer (1865) 2 De GJ & S 537; 46 ER 484 …. 8.50 Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30 …. 24.22 Besterman, Re [1984] Ch 458 …. 20.17 Bethell v Abraham (1873) LR 17 Eq 24 …. 12.46 Betts v Conolly (1970) 120 CLR 417 …. 8.16 — v Doughty (1879) LR 5 PD 26 …. 2.47 Bevan (deceased), Re [1948] 1 All ER 271 …. 11.50 Beveridge, In the Will of (1905) 6 SR (NSW) 125 …. 4.62 Beverly, Re [1901] 1 Ch 681 …. 13.15 Bidie (deceased), Re [1949] Ch 121 …. 17.11 Bienke v Bienke [2002] NSWSC 804 …. 19.27, 20.21 Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11 …. 1.42, 1.43, 1.46 Biggs (deceased), In the Estate of [1966] P 118 …. 10.16, 10.69 Biles v Ceasar [1957] 1 WLR 156 …. 11.79 Binckes (deceased), In the Goods of (1836) 1 Curt 286; 163 ER 97 …. 11.46 Birch v Birch (1848) 1 Rob Ecc 675; 163 ER 1175 …. 5.44 — v — [1902] P 130 …. 11.32 — v Treasury Solicitor [1951] Ch 298 …. 1.24, 1.25 Birchall, Re (1889) 40 Ch D 436 …. 7.43 Bird v Bird [2002] QSC 202 …. 17.24

— v — (2013) 11 ASTLR 225; [2013] NSWCA 262 …. 12.44 — v Luckie (1850) 8 Hare 301; 68 ER 375 …. 2.2, 8.6 Birmingham v Kirwan (1805) 2 Sch & Lef 444 …. 7.89 — v Renfrew (1937) 57 CLR 666 …. 1.37, 1.40, 1.41, 1.42, 1.43, 1.45, 1.48, 1.49 Bisset (deceased), Re [2016] 1 Qd R 211; [2015] QSC 85 …. 7.43 Black (deceased), Re [1911] VLR 280 …. 14.37, 14.38 Blackett v Darcy (2005) 62 NSWLR 392; [2005] NSWSC 65 …. 14.21, 14.22, 14.23 Blackley v Proctor [2001] NSWSC 537 …. 16.21, 16.27 Blackmore v Allen [2000] NSWCA 162 …. 18.3 Blackwell, In the Goods of (1877) LR 2 PD 72 …. 11.38 Blackwell v Blackwell [1929] AC 318 …. 4.64, 4.69, 4.70, 4.71, 4.74, 4.75, 4.78 Blackwood, In the Goods of (1881) 2 LR (NSW) Eq 83 …. 10.13 Bladen, Re [1952] VLR 82 …. 4.20, 11.19 Bladwell v Davis [2004] NSWCA 170 …. 18.3, 18.5, 18.23 Blair v Blair (2004) 10 VR 69; [2004] VSCA 149 …. 17.64, 17.77, 18.27, 19.1, 20.44 Blake, In the Will of (1878) 1 SCR NS (NSW) 253 …. 13.67 Blake, Re (2009) 25 VR 27; [2009] VSC 184 …. 8.6 Blakely (deceased), In the Estate of (1983) 32 SASR 473 …. 2.73, 4.36 Blanchfield v Johnston [2007] NSWSC 143 …. 23.37 Blandis (deceased), Re [2016] SASC 155 …. 14.29 Bleckly (deceased), Re [1951] Ch 740 …. 8.62 Blewitt (deceased), In the Goods of (1880) LR 5 PD 116 …. 4.6 Blight v Hartnoll (1883) 23 Ch D 218 …. 7.10 Blore v Lang (1960) 104 CLR 124 …. 15.14, 15.15, 15.17, 15.18, 15.19, 17.71, 17.76, 19.7 Blow, Re [1914] 1 Ch 233 …. 10.43, 12.44, 12.59 Blundell, Re [1906] 2 Ch 222 …. 7.79 Blunden v Blunden (2008) 258 LSJS 206; [2008] SASC 286 …. 17.11, 17.43, 17.48, 17.49, 20.39 Blyth, Re [1997] 2 Qd R 567 …. 22.21, 22.22, 22.28 Blyth (deceased), Re [1959] NZLR 1313 …. 20.57 Boardman v Boardman (2012) 10 ASTLR 138; [2012] NSWSC 1257 …. 20.35

Boehm, In the Goods of [1891] P 247 …. 2.61 Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 …. 4.40, 8.67, 8.68 Bogg v Raper (1998/99) 1 IETLR 267 …. 24.14 Bohrmann, In the Estate of [1938] 1 All ER 271 …. 2.12 Boland v Nahkle (SC(NSW), Powell J, 6 April 1992, unreported) …. 10.7, 11.25, 11.26 Bolger v McDermott [2013] NSWSC 919 …. 2.10, 19.1 Bolton, In the Goods of [1899] P 186 …. 11.57 Bolton v Curre [1895] 1 Ch 544 …. 13.41 Bond (deceased), Re [1967] NZLR 234 …. 10.27 Bondelmonte v Blanckensee [1989] WAR 305 …. 18.26, 19.47 Bondy v Vavros (SC(NSW), Young J, 29 August 1988, unreported) …. 20.21 Bone, Re (1895) 1 ALR 132 …. 10.3 Bone v Commissioner of Stamp Duties (NSW) (1974) 132 CLR 38 …. 11.79 Boni v Larwood [2014] SASC 185 …. 12.6 Bool v Bool [1941] St R Qd 26 …. 23.13 Booth, Re [1926] P 118 …. 4.22 Booth v Booth (1838) 1 Beav 125; 48 ER 886 …. 12.55 — v Public Trustee [1954] VLR 183 …. 10.18, 11.75 Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35 …. 18.51, 20.27 Borg v Hawke [2004] VSC 279 …. 17.37 Borne, Re [1944] Ch 190 …. 7.5, 7.6 Borthwick (deceased), Re [1949] 1 Ch 395 …. 17.76 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 …. 17.67, 17.71, 17.77, 18.5 Bothamley v Sherson (1875) LR 20 Eq 304 …. 7.4 Bottoms, In the Will of (SC(Vic), Phillips J, 26 July 1985, unreported) …. 10.3 Boughton v Knight (1873) LR 3 P & D 64 …. 23.17 Boulanger v Singh (1985) 16 DLR (4th) 131 …. 18.15 Boulter, Re [1918] 2 Ch 40 …. 14.36, 14.37 Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 112 …. 3.3, 3.12, 3.13, 3.17, 3.20, 23.20 — v — (No 2) [2003] VSC 409 …. 23.20 Bourdales v Carroll [2007] NSWSC 1057 …. 9.80, 10.23 Bourke, Re [1968] 2 NSWR 453 …. 17.16 Bourne, Re [1906] 1 Ch 697 …. 14.19, 14.20

Bouttell v Rapisarda [2014] NSWSC 1192 …. 20.15 Boviard v Frost (2009) 3 ASTLR 155; [2009] NSWSC 337 …. 16.25, 19.33 Bowcock (deceased), Re [1968] 2 NSWR 697 …. 8.39 Bowditch v NSW Trustee and Guardian [2012] NSWSC 702 …. 23.29 Bowen v Phillips [1897] 1 Ch 174 …. 10.70 Bowker, In the Goods of [1932] P 93 …. 11.17 Bowker v Hunter (1783) 1 Bro CC 328; 28 ER 1161 …. 11.83 Bowlby, Re [1904] 2 Ch 685 …. 14.37 Bowler v Bowler (SC(NSW), Young J, 7 June 1990, unreported) …. 11.36 — v John Mowlem & Co [1954] 3 All ER 556 …. 11.78 Bowman’s Settlement, Re [1929] SASR 1 …. 13.70 Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 …. 17.67, 18.1, 23.29 Boyce v Bunce [2015] NSWSC 1924 …. 2.40, 2.43, 2.46, 11.4, 24.22 Boyd (deceased), In the Estate of (1885) 11 VLR 117 …. 11.46 Boyd (deceased), In the Will of (1959) 59 SR (NSW) 369 …. 11.22 Boyes, Re (1884) 26 Ch D 531 …. 4.73 Boyes v Cook (1880) 14 Ch D 53 …. 8.37, 8.76 Boyse v Rossborough (1857) 6 HLC 2; 10 ER 1192 …. 2.39, 2.42, 2.43, 2.48, 2.51 Braham v Burchell (1826) 3 Add 243; 162 ER 468 …. 11.30 Bramston v Morris (SC(NSW), Powell J, 20 August 1993, unreported) …. 11.30, 11.94, 14.53 Bramwell (deceased), Re [1988] 2 FLR 263 …. 17.14 Brand v Adams (1998) 51 BCLR (3d) 333 …. 2.55 Brander, Re [1952] 4 DLR 688 …. 2.72 Bransby v Grantham (1577) 2 Plow 525; 75 ER 776 …. 10.83 Brasier, In the Goods of [1899] P 36 …. 5.48 Brassington, In the Goods of [1902] P 1 …. 5.13 Bravda (deceased), In the Estate of [1968] 2 All ER 217 …. 4.56, 4.58 Bremer v Freeman (1857) 10 Moo PC 306; 14 ER 508 …. 22.15 Brennan v Mansfield [2013] SASC 83 …. 19.7 — v Permanent Trustee Company of New South Wales Ltd (1945) 73 CLR 404 …. 8.3 Brian (deceased), In the Estate of [1974] 2 NSWLR 231 …. 5.6, 6.16 Bridgewater v Leahy (1998) 194 CLR 457 …. 2.40 Brier, Re (1884) 26 Ch D 238 …. 12.54

Briggs v Mantz (No 2) [2014] VSC 487 …. 23.33 Brighty (deceased), Re Estate of [2013] SASC 125 …. 11.21 Briginshaw v Briginshaw (1938) 60 CLR 336 …. 2.43, 2.66, 4.52 Brimelow v Alampi [2016] VSC 135 …. 19.37 Brine v Carter [2015] SASC 205 …. 12.22 Brock, Re Estate of (2007) 1 ASTLR 127; [2007] VSC 415 …. 4.34, 4.35, 4.44 Brogden, Re (1888) 38 Ch D 546 …. 13.28 Brokenshire (deceased), Re (1998) 8 VR 659; [1998] VSC 183 …. 2.5, 2.12 Brooke v Haymes (1868) LR 6 Eq 25 …. 10.84 — v Lewis (1822) 6 Madd 358; 56 ER 1128 …. 14.27 Brooks, Re Estate of (1979) 22 SASR 398 …. 18.20 Broomhead, In the Will of [1947] VLR 319 …. 5.20, 11.22 Brougham v Poulett (1855) 19 Beav 119; 52 ER 294 …. 10.46 Broughton, Re (1902) 19 WN (NSW) 69 …. 11.74 Brown, Re [2009] SASC 345 …. 3.10 Brown, Re [2015] NSWSC 1470 …. 22.22 Brown, Re Application of (1991) 23 NSWLR 535 …. 4.35, 4.43 Brown v Brown [1999] NSWSC 383 …. 12.23 — v Gregson [1920] AC 860 …. 22.34 — v Guss [2014] VSC 251 …. 2.6, 2.7 — v Heffer (1967) 116 CLR 344 …. 7.23, 7.32 — v Holt [1961] VR 435 …. 14.43, 14.45, 20.9 — v McEncroe (1890) LR 11 (NSW) Eq 134 …. 23.11 — v Milson [2012] WASC 36 …. 11.36, 11.95, 11.105 — v Pourau [1995] 1 NZLR 352 …. 4.70, 4.71, 4.73, 4.77 — v Sandhurst Trustees Ltd (No 2) [2009] VSC 406 …. 23.17 — v Skirrow [1902] P 3 …. 4.17 — v Tullock (1992) 7 BPR 15,101 …. 12.9, 12.10 — v Wade [2010] WASC 367 …. 2.7 — v Willoughby (2012) 7 ASTLR 453; [2012] WASC 20 …. 4.72 Brown (deceased), Re Estate of (2010) 106 SASR 516; [2010] SASC 90 …. 3.21 Brown (deceased), Re Estate of [2013] SASC 62 …. 11.38, 11.64 Brown (deceased), Re Estate of [2016] SASC 199 …. 4.34 Browne, Re [1944] IR 90 …. 4.75 Browne v Macaulay [1999] WASC 208 …. 19.16

Brownell v Robinson [2017] TASSC 5 …. 9.33, 9.82, 9.84 Brownrigg v Pike (1882) LR 7 PD 61 …. 1.5 Brown-Sarre v Waddingham [2012] VSC 116 …. 13.30 Bruce, Re [1979] Tas R 110 …. 8.55 Bruce v Matthews [2011] VSC 185 …. 15.16, 18.25 Bruce Estate, Re (1998) 24 ETR (2d) 44 …. 8.42 Brummitt (deceased), Re Estate of [2011] SASC 116 …. 11.18 Brundall (deceased), Re [2011] 3 NZLR 528 …. 4.39 Brusewitz v Brown [1923] NZLR 1106 …. 24.21, 24.22 Brush, Re [1962] VR 596 …. 11.86 Bryan, In the Estate of [1907] P 125 …. 11.35 Bryant v Blake (2004) 237 LSJS 23; [2004] SASC 369 …. 3.2, 3.3 Bryden, Re [1975] Qd R 210 …. 2.28, 11.30 Bryen v Reus [1961] SR (NSW) 396 …. 10.47 Bubnich, Re [1965] WAR 138 …. 23.42 Buchanan v Milton [1999] 2 FLR 844 …. 12.5 Buckingham v Buckingham [2016] VSC 757 …. 13.53 Buckland (deceased), Re [1966] VR 404 …. 19.15 Buckland (deceased) (No 2), Re [1967] VR 3 …. 18.23 Buckley v Millar (1869) 8 SCR (Eq) 74 …. 2.43 Buick v Equity Trustees Executors & Agency Co Ltd (1957) 97 CLR 599 …. 8.50 Bulder (deceased), Estate of [2012] NSWSC 1328 …. 4.34 Bull v Fulton (1942) 66 CLR 295 …. 2.2, 2.8, 2.11, 2.12, 2.17 Bullas v Public Trustee [1981] 1 NSWLR 641 …. 14.49 Bullivant v Attorney-General (Vic) [1901] AC 196 …. 24.2 Bund v Green (1879) 12 Ch D 819 …. 9.8 Bunn v Markham (1816) 7 Taunt 224; 129 ER 90 …. 1.24 Bunting (deceased), Re [1974] 2 NZLR 219 …. 4.55 Bupa Care Services NZ Ltd v Gillibrand [2013] 3 NZLR 701; [2013] NZHC 2086 …. 11.99 Burdekin, In the Estate of (1901) 1 SR (NSW) B & P 1 …. 13.55, 13.67 Burge v Burge [2015] NSWCA 289 …. 4.34, 4.41 Burgess, Re [1984] 2 Qd R 379 …. 17.24, 17.30, 20.9 Burgess v Burgess (1844) 1 Coll 367; 63 ER 458 …. 13.66 — v Public Trustee of New South Wales [2011] NSWSC 1070 …. 18.10

Burgess (deceased), In Estate of (2011) 111 SASR 401; [2011] SASC 223 …. 22.4, 22.15 Burke, Re [1991] 2 NZLR 312 …. 4.61, 4.62, 4.67 Burke v Burke (2014) 13 ASTLR 294; [2014] NSWSC 1015 …. 19.21 — v — (2015) 13 ASTLR 313; [2015] NSWCA 195 …. 19.21, 20.54 — v Dawes (1938) 59 CLR 1 …. 10.47, 10.50 — v Public Trustee (1997) 69 SASR 557 …. 18.14, 18.17, 18.20 Burnes v Richards (1993) 7 BPR 15,104 …. 12.6 Burns v Bayliss [2006] WASC 102 …. 10.43 — v Burns [2016] WTLR 755; [2016] EWCA Civ 37 …. 2.3, 2.20, 2.29, 2.30 — v Campbell [1952] 1 KB 15 …. 11.78 — v Elder’s Trustee and Executor Co Ltd [1968] SASR 297 …. 17.11 — v Estate of Burns (2013) 11 ASTLR 362; [2013] NSWSC 1550 …. 3.17, 3.18 — v Secretary of State for Social Services [1985] SLT 351 …. 7.48 Burns Philp Trustee Co Ltd v Elliott [1976] 1 NSWLR 14 …. 4.54 Burnside v Mulgrew [2007] NSWSC 550 …. 2.35, 11.19 Burrell, In the Goods of (1858) 1 Sw & Tr 64; 164 ER 631 …. 10.25 Burrows v Cramley [2002] WASC 47 …. 12.9, 12.10 Burt, Re [1988] 1 Qd R 23 …. 16.39, 16.46 Burt v Agius [2003] NSWSC 461 …. 17.75 Burton v Collingwood (1832) 4 Hagg 176; 162 ER 1411 …. 2.24 — v McGregor [1953] NZLR 487 …. 5.24, 5.26 — v Moss [2010] NSWSC 163 …. 17.27, 17.33, 17.39 Bushel (deceased), Re (1887) 13 VLR 166 …. 10.12 Butler, Re [1969] QWN 48 …. 11.53 Butler v Butler (1885) 28 Ch D 66 …. 8.72 — v Meriga [1904] St R Qd 248 …. 10.24, 11.95 — v Tiburzi [2016] SASC 108 …. 19.16 Butlin v Butlin (1966) 113 CLR 353 …. 8.16 Butterfield v Scawen (unreported, 1775) …. 2.51 Butterworth v Woods [2010] WASC 176 …. 9.4 Button v Lynch [2002] NSWSC 1148 …. 20.72 Byers v Overton Investments Pty Ltd (2001) 109 FCR 554; [2001] FCA 760 …. 11.75, 11.79, 11.82 Byrne v Bishop [2001] 3 NZLR 780; [2001] NZCA 309 …. 1.38 — v Byrne [2000] NSWCA 168 …. 18.21

Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26 …. 8.4 Bywater, Re (1881) 18 Ch D 17 …. 8.34 C C (a patient), Re [1991] 3 All ER 866 …. 3.9, 3.11, 3.17 Cabban v Cabban [2010] NSWSC 1433 …. 17.11 Cadell v Wilcocks [1898] P 21 …. 5.6 Cadge, In the Goods of (1868) LR 1 P & D 543 …. 5.42 Cahill v Rhodes [2002] NSWSC 561 …. 11.21, 11.23 Cain v Moon [1896] 2 QB 283 …. 1.15, 1.21, 1.24 Calcino v Fletcher [1969] Qd R 8 …. 14.7 Caldar v Public Trustee of New South Wales [2003] NSWCA 187 …. 11.30 Callaghan v Myers (1880) 1 NSWR 351 …. 2.43 Callaghan (deceased), Re [1984] 3 All ER 790 …. 18.47 Callan, Ex parte [1968] 1 NSWR 443 …. 11.78, 11.79, 11.82 Callaway, Re [1956] Ch 559 …. 7.48, 7.57, 7.58 Callow (deceased), In the Will and Codicil of [1918] VLR 406 …. 4.17 Calma v Sesar (1992) 106 FLR 446 …. 12.7 Calvo v Sweeney [2009] NSWSC 719 …. 12.22 Camden v Fletcher (1838) 4 M & W 378; 150 ER 1475 …. 10.17 Cameron, Re [1982] WAR 55 …. 11.75 Cameron v Hills (SC(NSW), Needham J, 26 October 1989, unreported) …. 20.61 Cameron (deceased), Re [1999] Ch 386 …. 7.81, 7.82, 7.84, 7.85 Campbell v Campbell [2015] NSWSC 784 …. 1.42 — v Chabert-McKay [2010] NSWSC 859 …. 15.24, 17.24, 18.34, 20.78 — v French (1797) 3 Ves 321; 30 ER 1033 …. 5.22 Campbell (deceased), Re [1968] VR 46 …. 10.47, 10.50 Campton v Hedges [2016] NSWSC 201 …. 4.40 Cann v Saleeba [2014] WASC 299 …. 17.49, 20.18 Cardale v Harvey (1752) 1 Lee 177; 161 ER 66 …. 10.24 Carey v Goodinge (1790) 3 Bro CC 110; 29 ER 439 …. 14.19, 14.20 — v Norton [1998] 1 NZLR 661 …. 2.45 — v Robson (2009) 2 ASTLR 400; [2009] NSWSC 1142 …. 15.15, 18.22 — v — [2010] NSWCA 212 …. 15.15, 18.22, 20.54 — v — (No 2) [2009] NSWSC 1199 …. 15.9, 15.15, 23.29

Carlton (deceased), Re [1924] VLR 237 …. 22.4 Carmody v Anstee (2001) 49 ATR 1; [2001] QSC 93 …. 9.13 Carn, Re (2011) 9 ASTLR 540; [2011] VSC 275 …. 23.29 Carney v Hall (2011) 111 SASR 424; [2011] SASC 207 …. 2.39, 2.46 Carr, In the Goods of (1867) LR 1 P & D 291 …. 10.24 Carr v Carr (1987) 8 NSWLR 492 …. 13.18 Carr-Glynn v Frearsons (a firm) [1999] Ch 326 …. 24.40 Carroll v Cowburn [2003] NSWSC 248 …. 20.25, 23.37 — v Perpetual Trustee Co Ltd (1916) 22 CLR 423 …. 8.25 Carter (deceased), Re [1932] NZLR 63 …. 13.70 Cartwright, Re [1921] SASR 347 …. 5.6 Cash v Nominal Defendant (1969) 90 WN (Pt 1) (NSW) 77 …. 10.19, 11.79 Caska v Caska [1999] NSWSC 289 …. 20.30 Cassel, Re Estate of [2000] NSWSC 294 …. 17.11 Cassie v Koumans [2007] NSWSC 481 …. 4.36 Casson v Dade (1781) 1 Bro CC 99; 28 ER 1010 …. 4.17 Castle v Fox (1871) LR 11 Eq 542 …. 7.30 Catherwood v Chabaud (1823) 1 B & C 150; 107 ER 56 …. 11.43 Caudle v LD Law Ltd [2009] 2 All ER 1020; [2008] EWHC 374 …. 11.82 Celantano Estate v Ross (2014) 62 BCLR (5th) 153; [2014] BCSC 27 …. 7.4, 7.6, 7.7 Cetojevic v Cetojevic [2006] NSWSC 431 …. 20.78 — v — [2007] NSWCA 33 …. 20.60, 20.61, 20.78 Chadwick v Collinson [2015] WTLR 25; [2014] EWHC 3055 …. 7.51 Chalcraft (deceased), In the Goods of [1948] P 222 …. 4.6 Chalk v Hoare [2009] NZFLR 736 …. 18.42 Challen v Shippam (1845) 4 Hare 555; 67 ER 768 …. 12.29 Challinor v Challinor [2009] WTLR 931; [2009] EWHC 180 …. 18.25 Chamberlain, In the Goods of (1867) LR 1 P & D 316 …. 11.33 Chambers v Bicknell (1843) 2 Hare 536; 67 ER 222 …. 10.12 Chambers Estate v Chambers [2013] ONCA 511 …. 10.60 Champion, Re [1893] 1 Ch 101 …. 6.1, 6.6 Chan v Chan [2016] NSWCA 222 …. 17.75, 18.32 — v Mazurkiewicz [2015] WASC 432 …. 16.16 — v Tsui [2005] NSWSC 82 …. 19.49, 20.61, 20.73 Chan (deceased), Re Estate of [2015] NSWSC 1107 …. 4.36, 4.59

Chancellor, Re (1884) 26 Ch D 42 …. 13.22 Chang v Chang [2012] VSC 346 …. 5.44 — v Tjiong [2011] NSWSC 1614 …. 23.3 Chant v Brown (1849) 7 Hare 79; 68 ER 32 …. 24.2 Chapman, In the Goods of [1903] P 192 …. 10.69 Chapman, Re [1896] 2 Ch 763 …. 12.1, 12.54 Chapman, Re [1918] St R Qd 226 …. 23.29 Chapman v Chapman [1954] AC 429 …. 13.31 — v — [2004] ACTSC 121 …. 17.74, 18.5, 18.21 — v Elder’s Trustee & Executor Co Ltd [1971] SASR 63 …. 19.50 Chappell v Hewson [2013] WASCA 15 …. 18.40 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 …. 18.37, 18.43, 20.57, 23.29 Chard v Chard [1956] P 259 …. 11.7 Charles v Charles (SC(NSW), Young J, 25 March 1998, unreported) …. 17.34 — v Fraser [2010] WTLR 1489; [2010] EWHC 2154 …. 1.42 Charnock v Handley [2011] NSWSC 1408 …. 20.65 Charter v Charter (1874) LR 7 HL 364 …. 8.39 Charteris, Re [1917] 2 Ch 379 …. 12.2, 13.3, 13.13, 13.15, 13.16 Chase (deceased), Re [1951] VLR 477 …. 5.26 Chavannes, Re (1898) 16 NZLR 639 …. 13.57 Chave, In the Estate of (1930) 30 SR (NSW) 180 …. 10.23 Cheese v Lovejoy (1877) LR 2 PD 251 …. 5.9, 5.10 Cheetham v Ward (1797) 1 Bos & P 630; 126 ER 1102 …. 14.19 Chellew v Excell [2009] 1 NZLR 711 …. 12.22 Cherrington (deceased), Re [1984] 2 All ER 285 …. 8.2 Cherry v Boultbee (1839) 4 My & Cr 442; 41 ER 171 …. 14.24, 14.25, 14.26 Chesney v Tognola [2011] QSC 340 …. 11.101, 12.14 Chetty v Chetty [1916] 1 AC 603 …. 11.78, 11.79 Chichester v Coventry (1867) LR 2 HL 71 …. 7.79, 7.80, 7.81, 7.85 — v Quatrefages [1895] P 186 …. 5.6 Chichester Diocesan Fund and Board of Finance (Incorporated) v Simpson [1944] AC 341 …. 2.59, 2.78, 2.79, 2.80 Chick v Grosfeld (No 3) [2012] NSWSC 1536 …. 13.46, 13.47 Chillingworth v Chambers [1896] 1 Ch 685 …. 13.41 Chirnside, Re (1903) 29 VLR 4 …. 7.86

Chirnside, Re [1956] VLR 295 …. 12.1 Chiro v Linton (No 2) [2009] SASC 197 …. 13.64 Chomiak, In the Estate of (2012) 112 SASR 245; [2012] SASC 27 …. 10.3 Chomley, Re (2014) 10 ASTLR 338; [2014] VSC 220 …. 12.22 Chong v Chanell [2009] NSWSC 765 …. 12.31 Christensen v McKnight (SC(NSW), Hodgson J, 2 March 1995, unreported) …. 7.26 Christian, In the Will Of (1975) 25 FLR 89 …. 11.95 Christian v Intsiful [1954] 1 WLR 253 …. 2.34 Christie v Christie [2016] WASC 45 …. 19.22 — v Edward [2012] WASC 265 …. 19.27, 20.22 Church, Re Estate of [2012] NSWSC 1489 …. 2.27 Church v Mason (2013) 12 ASTLR 190; [2013] NSWCA 481 …. 2.27, 2.28 Churchill, Re [1909] 2 Ch 431 …. 14.36, 14.37 Churton v Christian (1988) 13 NSWLR 241 …. 16.1, 17.80, 18.19, 18.46, 19.11 Cinnamon v Public Trustee for Tasmania (1934) 51 CLR 403 …. 5.44 City Equitable Fire Insurance Co Ltd, Re [1925] 1 Ch 407 …. 12.54 City of Burnside v Attorney-General (SA) (1994) 63 SASR 65 …. 23.19 City of Sydney Real Estate Co Ltd, Re (1928) 29 SR (NSW) 80 …. 12.22 Clark, In Goods of (1839) 2 Curt 329; 163 ER 428 …. 4.7 Clark v Sewell (1744) 3 Atk 96; 26 ER 858 …. 7.76, 14.33 Clarke, In the Will of (1922) 22 SR (NSW) 228 …. 11.24 Clarke v Clarke (1901) 1 SR (NSW) (B & P) 25 …. 23.11 Clarkington, In the Goods of (1861) 2 Sw & Tr 380; 164 ER 1043 …. 11.58 Claverie, Re (1970) 91 WN (NSW) 858; [1970] 2 NSWR 380 …. 17.26, 18.13 Clayton v Aust (1993) 9 WAR 364 …. 17.24, 17.25, 17.37 Cleaver, In the Estate of [1905] P 319 …. 11.50 Cleaver v Mutual Reserve Fund Life Assurance [1892] 1 QB 147 …. 7.47 Cleaver (deceased), Re [1981] 2 All ER 1018 …. 1.42, 1.43, 1.44 Clegg v Rowland (1866) LR 3 Eq 368 …. 14.54 Clemens v Byrnes [2007] NSWSC 421 …. 2.3 Clifford, Re [1912] 1 Ch 29 …. 7.28 Clifford v Mayr [2010] NSWCA 6 …. 17.3, 18.3, 20.54 Clift v Clift [1964] NSWR 1896 …. 7.49 Clinch v Swift (SC(NSW), Young J, 13 October 1986, unreported) …. 16.36

Clinton, In the Will of (1910) 10 SR (NSW) 465 …. 10.46, 12.50 Clocchiatti v Pierobon [2014] NSWSC 488 …. 2.30 Cloonan v Allingham (SC(NSW), Needham AJ, 14 December 1990, unreported) …. 4.43 Clout & Frewer’s Contract, Re [1924] 2 Ch 230 …. 10.58 Clover, Re [1919] NZLR 103 …. 10.86 Clucas v Clucas Estate (1999) 25 ETR (2d) 175 …. 19.37 Coates, Re [1955] Ch 495 …. 2.80 Coates v National Trustees, Executors and Agency Co Ltd (1956) 95 CLR 494 …. 15.19, 17.65, 17.66, 17.81, 19.40 Cobb, Re [1989] 1 Qd R 522 …. 16.40 Cobcroft v Bruce (2013) 9 ASTLR 308; [2013] NSWSC 774 …. 8.31, 8.32 Cock v Cooke (1866) LR 1 P & D 241 …. 1.3 Cockburn’s Will Trust, Re [1957] Ch 438 …. 10.45, 10.46, 10.77 Codrington v Codrington (1875) LR 7 HL 854 …. 7.89 Cody v Cody [2013] VSC 274 …. 13.36 — v — (No 3) [2016] VSC 499 …. 23.3 Coe, Re Estate of (2013) 9 ASTLR 287; [2013] NSWSC 968 …. 11.53 Coffey v Bennett [1961] VR 264 …. 17.13, 17.14, 17.30, 20.29 Cogan (deceased), Re (1912) 31 NZLR 1204 …. 2.57 Cohen (deceased), Re [1960] Ch 179 …. 14.18 Cohen (deceased), Re [1975] VR 187 …. 11.56 Colantuono v Colantuono [2009] NSWSC 1445 …. 20.30, 20.72 Cole v Paisley [2016] NSWSC 349 …. 11.102 Coleman (deceased), Re [1976] Ch 1 …. 5.26, 5.29 Collens (deceased), Re [1986] Ch 505 …. 22.13 Coller v Coller [1998] VSC 80 …. 19.47 Colless, In the Will of (1941) 41 SR (NSW) 133 …. 10.17 Collett v Knox [2010] QSC 132 …. 17.45, 17.46, 17.47, 17.48, 18.3, 19.10, 19.19, 23.22 Collicoat v McMillan [1999] 3 VR 803 …. 15.19, 15.23, 16.31, 17.6, 17.64, 17.65, 17.70, 18.23, 18.24, 18.30, 19.14, 20.28, 20.29 Colling (deceased), Re [1972] 3 All ER 729 …. 4.6, 4.18, 4.30 Collings v Vakas [2006] NSWSC 393 …. 17.7 Collins v Elstone [1893] P 1 …. 2.56 — v McGain [2003] NSWCA 190 …. 17.8, 17.70, 17.73, 17.74

Collins (deceased), Re [1969] VR 499 …. 11.33 Collins (Francis), Re Estate of [2000] NSWSC 407 …. 5.6 Collins’ Settlement Trusts, Re [1971] 1 All ER 283 …. 8.30 Collinson v Lister (1855) 20 Beav 356; 52 ER 639 …. 13.22 Colston v McMullen [2010] QSC 292 …. 11.105 — v — [2011] QCA 164 …. 11.105 Colvin v Fraser (1829) 2 Hagg Ecc 266; 162 ER 856 …. 23.19 Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177 …. 11.91, 11.92 Comfort (deceased), Re [1947] VLR 237 …. 11.85 Commander Leasing Corp Ltd v Aiyede (1983) 4 DLR (4th) 107 …. 12.44 Commissioner of Stamp Duties (NSW) v Bone (1976) 135 CLR 223 …. 14.19, 14.20 Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 …. 10.43, 11.83 Commissioner of Taxation (NSW) v Lawford (1937) 56 CLR 774 …. 10.54 Commissioners of Inland Revenue v Hawley [1928] 1 KB 578 …. 10.47 Compton, Re (1885) 30 Ch D 15 …. 14.13 Compton v Bloxham (1845) 2 Coll 201; 63 ER 699 …. 13.66 Condon v Miller [1981] VR 465 …. 13.70 Connell v Bond Corporation Pty Ltd (1992) 8 WAR 352 …. 10.43 Conners v Conners [2012] NSWSC 181 …. 11.96 Connors v Tasmanian Trustees Ltd (1996) 6 Tas R 267 …. 16.39, 16.46 Consolidated Development Pty Ltd v Holt (1986) 6 NSWLR 607 …. 10.47 Constable v Bull (1849) 3 De G & Sm 411; 64 ER 539 …. 8.32 Contencin v Tasmanian Perpetual Trustees Ltd [2010] TASSC 3 …. 18.44 Contractors Bonding Ltd v Snee [1992] 2 NZLR 157 …. 24.22 Cook, Re [1948] Ch 212 …. 8.8, 8.14 Cook (deceased), In the Estate of [1960] 1 All ER 689 …. 4.6 Cooke v Watson (1902) 2 SR (NSW) 36 …. 23.17 Coomber, Re [1911] 1 Ch 723 …. 24.22 Coomber, Re [2014] SASC 37 …. 22.27 Coombes v Ward [2004] VSCA 51 …. 16.47, 17.64, 19.5, 20.57, 23.41 — v — (No 2) [2002] VSC 84 …. 23.24, 23.30 Cooper, Re [1939] Ch 811 …. 4.71 Cooper v Bockett (1846) 4 Moo PC 419; 13 ER 365 …. 5.44 — v Cooper (1874) LR 7 HL 53 …. 7.90

— v Dungan (1975) 9 ALR 93 …. 15.14, 15.15 — v Jarman (1866) LR 3 Eq 98 …. 12.15 Coote v Whittington (1873) LR 16 Eq 534 …. 10.19 Cope, Re (1880) 16 Ch D 49 …. 11.44 Cope v Keene (1968) 118 CLR 1 …. 14.21, 14.22 Coppola v Nobile (No 2) [2012] SASC 129 …. 4.19 Coppola (deceased), Re Estate of (2011) 5 ASTLR 273; [2011] SASC 182 …. 17.11 Corbett v Newey [1998] Ch 57 …. 2.26, 4.5 — v State Trustees Ltd [2010] VSC 481 …. 16.48, 16.49, 17.25, 17.29, 18.52, 19.39 Cordwell’s Estate, Re (1875) LR 20 Eq 644 …. 14.26 Corin v Patton (1990) 169 CLR 540 …. 1.27 Cornelius (deceased), Re [2012] 1 NZLR 853; [2011] NZHC 1804 …. 10.7, 11.40 Corner, Re [2015] SASC 100 …. 3.9 Corporate Systems Publishing Pty Ltd v Lingard [2009] WASCA 158 …. 14.63 — v — (No 4) (2008) 2 ASTLR 431; [2008] WASC 21 …. 14.63 Corsellis, Re (1887) 34 Ch D 675 …. 13.72 Cosnahan v Grice (1862) 15 Moo PC 215; 15 ER 476 …. 1.28 Cossens v Petta [2014] WASC 117 …. 10.69 Costa v Public Trustee (NSW) (2008) 1 ASTLR 56; [2008] NSWCA 223 …. 4.34, 4.36 Costello, Re Estate of [2014] SASC 134 …. 11.38 Costello v Martens [2009] NSWSC 1151 …. 19.15, 19.16, 20.46 Cotton v Owen (1999) 204 LSJS 426; [1999] SASC 391 …. 20.17 Coulston v Tasmanian Perpetual Trustees Ltd [2010] TASSC 22 …. 17.7, 18.23 Coulthard v Disco Mix Club Ltd [1999] 2 All ER 457 …. 12.47 Court v Hunt (SC(NSW), Powell J, 29 October 1987, unreported) …. 18.2 — v — (SC(NSW), Young J, 14 September 1987, unreported) …. 18.10 Courtenay v Williams (1846) 15 LJ (Ch) 204 …. 14.24, 14.26 Courtney v Powell [2012] NSWSC 460 …. 20.66 Cousen’s Will Trusts, Re [1937] Ch 381 …. 7.15 Coventry (deceased), Re [1980] Ch 461 …. 17.76 Coverdale (deceased), Re [1909] VLR 248 …. 11.104

Cowan (deceased), Re [1913] SALR 55 …. 11.48 Cowderoy v Cranfield [2011] WTLR 1699; [2011] EWHC 1616 …. 2.5 Cowen v Truefitt [1899] 2 Ch 309 …. 8.27 Cowin, Re [1968] QWN 3 …. 1.7 Craig, Re (1952) 52 SR (NSW) 265 …. 13.73, 24.17 Craig v Craig [2015] WASC 109 …. 17.37 — v Lamoureux [1920] AC 349 …. 2.40 Crane, Re Estate of (2005) 93 SASR 198; [2005] SASC 379 …. 10.68 Crane v Crane (1949) 80 CLR 327 …. 8.62 Cranstoun (deceased), Re [1949] Ch 523 …. 7.43 Craven’s Estate (No 1), Re [1937] Ch 423 …. 1.15, 1.16, 1.19, 1.21 Crawford v Forshaw [1891] 2 Ch 261 …. 13.2 Crawford (deceased), Re [2014] 3 NZLR 38; [2014] NZHC 609 …. 11.19 Crawford (deceased), Re Estate of (2004) 90 SASR 119; [2004] SASC 370 …. 5.3, 5.5, 22.25 Crawley, Re Estate of [2010] NSWSC 618 …. 3.2 Cregan, In the Estate of (1931) 48 WN (NSW) 188 …. 11.60 Cringan, In the Goods of (1828) 1 Hagg Ecc 548; 162 ER 673 …. 10.2 Crippen, Re [1911] P 108 …. 7.47, 9.14 Crisp v Burns Philp Trustee Co Ltd (SC(NSW), Holland J, 18 December 1979, unreported) …. 18.10 Crocombe (deceased), Re [1949] SASR 302 …. 8.3, 8.6, 8.14, 8.16, 8.21 Crooks Estate, Re (SC(NSW), Young J, 14 December 1994, unreported) …. 2.13 Cropley v Cropley (2002) 11 BPR 20,171; [2002] NSWSC 349 …. 15.12, 18.5 Cross, Re Estate of (deceased) (SC(NSW), McLelland CJ in Eq, 9 May 1996, unreported) …. 2.75 Cross v Wasson (2009) 2 ASTLR 201; [2009] NSWSC 378 …. 18.6, 18.10, 19.22 Crossley (deceased), In the Estate of [1989] WAR 227 …. 4.52 Crossman v Riedel [2004] ACTSC 127 …. 19.47 Crothers, Re [1930] VLR 49 …. 14.18 Crowhurst Park, Re [1974] 1 WLR 583 …. 11.79 Crowther, Re [1895] 2 Ch 56 …. 13.23 Crumpe v Crumpe [1900] AC 127 …. 8.5 Crunden and Meux’s Contract, Re [1909] 1 Ch 690 …. P.4

Culbertson, Re (1966) 59 DLR (2d) 381 …. 7.4, 7.5, 7.7 Culbertson, Re (1967) 62 DLR (2d) 134 …. 7.4, 7.5, 7.7 Cunliffe-Owen, Re [1953] Ch 545 …. 10.47, 10.49, 11.83, 12.1 Cunnington, Re [1924] 1 Ch 68 …. 22.22 Curley v Duff (1985) 2 NSWLR 716 …. 11.23 Curran, Re [2010] VSC 455 …. 10.23, 11.7, 11.66 Curran v Duncan [2006] WASC 9 …. 18.26 Currell, Re Estate of [2012] NSWSC 705 …. 5.6 Currie, Re Estate of (2015) 12 ASTLR 361; [2015] NSWSC 1098 …. 4.6, 4.36 Currie v Glen (1936) 54 CLR 445 …. 23.41 Curry (deceased), In the Will of (1945) 46 SR (NSW) 158 …. 4.10 Custodial Ltd v Cardinal Financial Services Ltd [2005] 2 Qd R 115; [2004] QSC 452 …. 10.73 Cutcliffe’s Estate, Re [1959] P 6 …. 23.7, 23.13 Cuthbertson, Re [1979] Tas SR 93 …. 8.6, 8.30 Cutting v Public Trustee for the Northern Territory [2017] NTSC 6 …. 20.33 Czapp v Cassar [2015] VSC 111 …. 11.104 D D v McA (1986) 11 Fam LR 214 …. 16.10 Dabbs v Chisman (1810) 1 Phill Ecc 155; 161 ER 946 …. 11.26 Dacre v Patrickson (1860) 1 Dr & Sm 182; 62 ER 348 …. 11.83 Dadds (deceased), In the Goods of (1857) Deane 290; 164 ER 579 …. 5.11 Daily Pty Ltd, The v White (1946) 63 WN (NSW) 262 …. 11.79, 11.82 Daintree v Butcher (1888) LR 13 P & D 102 …. 4.12 D’Albora v D’Albora [1999] NSWSC 468 …. 20.73 Dale v Inland Revenue Commissioners [1954] AC 11 …. 13.46 Dale (deceased), Re [1994] Ch 31 …. 1.47 Daley v Barton (2008) 3 ASTLR 1; [2008] QSC 228 …. 15.22 Dally v Dally [1954] Tas SR 12 …. 8.35 Dalrymple v Melville (1932) 32 SR (NSW) 596 …. 12.54 Dalton v Dalton (SC(WA), Parker J, 24 September 1997, unreported) …. 11.23 — v Paull (No 2) [2007] NSWSC 803 …. 23.35, 23.37 Daly, Re Estate of (2012) 8 ASTLR 48; [2012] NSWSC 555 …. 2.74 Dance v Goldingham (1873) LR 8 Ch App 902 …. 13.6

Dancer v Crabb (1873) LR 3 P & D 98 …. 5.20 Daniel v Van Zwol (2015) 123 SASR 463; [2015] SASCFC 93 …. 20.57 — v — [2015] SASCFC 38 …. 20.15 Daniels, Re (1918) 118 LT 435 …. 8.49 Daniels v Hall [2014] WASC 152 …. 18.26, 19.9 — v — (No 2) [2014] WASC 272 …. 23.22, 23.25, 23.33 — v Scrivenor [1997] 2 VR 595 …. 7.41 Danish Bacon Co Ltd Staff Pension Fund Trusts, Re [1971] 1 WLR 248 …. 1.12 D’Apice v Gutkovich (No 1) [2010] NSWSC 1336 …. 24.2 Darcy v Duckett [2016] NSWSC 1756 …. 12.7, 12.10 Dare v Furness (1998) 44 NSWLR 493 …. 17.24, 17.31, 17.35, 17.40, 17.41, 20.77 Darke (deceased), In the Goods of (1859) 1 Sw & Tr 516; 164 ER 839 …. 10.7 Darling, Re [1925] SASR 262 …. 13.48 Darrington v Caldbeck (1990) 20 NSWLR 212 …. 11.79, 10.84 Darveniza v Darveniza [2014] QSC 37 …. 19.7, 20.46 Daulizio v Trust Company of Australia [2005] VSCA 215 …. 23.14 Davey, Re [1980] 3 All ER 342 …. 3.3 Davidson v Cameron [2016] 2 Qd R 340; [2015] QSC 294 …. 13.37, 22.9 — v Sampson [2012] NSWSC 481 …. 20.60 Davidson (deceased), Re [1949] Ch 670 …. 8.9, 8.51 Davies, In the Estate of [1951] 1 All ER 921 …. 4.30 Davies, Re [2014] VSC 248 …. 17.62, 18.42 Davies v Gregory (1873) LR 3 P & D 28 …. 23.6 — v National Trustees Executors and Agency Co of Australasia Ltd [1912] VLR 397 …. 14.44 — v Parry [1899] 1 Ch 602 …. 14.13 Davies (deceased), In the Goods of (1850) 2 Rob 377; 163 ER 1337 …. 4.12 Davis, In the Estate of [1906] P 330 …. 11.38 Davis, In the Goods of (1860) 2 Sw & Tr (Supp) 213; 164 ER 1498 …. 10.60 Davis, Re [1891] 3 Ch 119 …. 11.83 Davis v Chanter (1848) 2 Ph 545; 41 ER 1054 …. 11.54 — v Davis (No 2) [2012] NSWSC 523 …. 10.25, 11.43, 11.96 — v Davis [2014] WASC 395 …. 12.35 — v Wangenheim (1907) 7 SR (NSW) 453 …. 23.7, 23.9

— v Worthington [1978] WAR 144 …. 7.48, 7.59 Davis (deceased), In the Goods of [1952] P 279 …. 6.16 Davison v Staley (SC(NSW), Bryson J, 21 August 1986, unreported) …. 17.30 Dawes (deceased), Re Estate of (2011) 112 SASR 117; [2011] SASC 236 …. 2.69 Dawson v Fitch (2002) 84 SASR 20; [2002] SASC 12 …. 17.43, 17.71, 20.6, 20.8 — v Joyner (No 2) [2012] QSC 24 …. 23.29 — v Perpetual Trustee Co (Ltd) (1953) 89 CLR 138 …. 12.46 Dawson (deceased), Re Estate of [2016] SASC 89 …. 11.84 Day, Re [1898] 2 Ch 510 …. 12.15 Day v Collins [1925] NZLR 280 …. 8.41, 8.58 — v Raudino [2009] VSC 463 …. 17.37, 18.42 — v Tric (1715) 1 P Wms 286; 24 ER 391 …. 8.26 de Angelis v de Angelis [2003] VSC 432 …. 17.57, 17.64, 19.37, 19.38 De Bruyn, Re [2016] VSC 6 …. 8.64, 8.66 De Feu, Re [1964] VR 420 …. 18.13 De Gois v Korp [2005] VSC 326 …. 3.2 De Winter v Johnstone (CA(NSW), Sheller, Powell and Cole JJA, 23 August 1995, unreported) …. 17.24, 17.37, 17.42 Dean v Collins (No 2) [2015] WASCA 151 …. 17.72, 23.29 Dear v Rich (1920) 22 WALR 69 …. 11.95, 11.102, 12.30 Dear (deceased), Re [1975] 2 NZLR 254 …. 6.15, 6.17 Deecke v Deecke [2009] QSC 65 …. 3.17 Deeks v Greenwood [2011] WASC 359 …. 4.5 Deering v Torrington (1703) 1 Salk 79; 91 ER 75 …. 14.1 Deguara v Mercieca (SC(NSW), Powell J, 23 August 1988, unreported) …. 17.49 Dehnert v Perpetual Executors and Trustees Association of Australia Ltd (1954) 91 CLR 177 …. 20.57 Deichman, Re (1842) 3 Curt 123; 163 ER 676 …. 10.2 Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 …. 1.33 Delgoffe v Fader [1939] Ch 922 …. 1.15 Delisio v Santoro (2002) 218 LSJS 199; [2002] SASC 65 …. 17.16, 17.25 Dellios v Dellios [2012] NSWSC 868 …. 24.4

Dellow’s Will Trusts, Re [1964] 1 All ER 771 …. 7.57 Demetriou (deceased), Re Estate of (2013) 12 ASTLR 124; [2013] VSC 703 …. 17.71, 18.26 Dempsey v Lawson (1877) 2 PD 98 …. 5.6, 11.35 Denby, In the Matter of (1861) 3 De GF & J 350; 45 ER 914 …. 13.66 Denger (deceased), Re Estate of [2000] TASSC 70 …. 6.17 Denley’s Trust Deed, Re [1969] 1 Ch 373 …. 12.5 Dennis, In the Goods of [1891] P 326 …. 6.15 Dennis, Re [1993] 3 NZLR 86 …. 11.38, 11.46 Dennis (deceased), Re [1981] 2 All ER 140 …. 17.37, 17.76, 18.23 Desmarchelier v Stone [2005] 2 Qd R 243; [2004] QSC 458 …. 7.13, 9.17 Devenish v Devenish [2011] WASC 129 …. 17.71, 18.40 Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 …. 17.67, 17.68, 17.71 Devling (deceased), Re [1955] VLR 238 …. 8.57, 8.58 Devoy, Re [1943] St R Qd 137 …. 11.25, 11.26 Dewell, In the Goods of (1853) 1 Sp (Ecc & Ad) 103; 164 ER 60 …. 5.46 Dewell, Re (1858) 4 Drew 269; 62 ER 104 …. 10.12 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 …. 17.19 Di Cecco v Contini [2004] VSC 211 …. 2.14, 11.15 Di Domizio v Matalone [2012] NSWSC 296 …. 11.95 Dibbs, Re Estate of [2006] NSWSC 1277 …. 13.70 Dibbs v Goren (1849) 11 Beav 483; 50 ER 904 …. 14.44 Dickman v Holley [2013] NSWSC 18 …. 11.30, 11.108, 14.53 Dickson, Re (1885) 29 Ch D 331 …. 14.36 Dijkhuijs v Barclay (1988) 13 NSWLR 639 …. 17.45, 18.15, 18.17 Dillon, Re (1890) 44 Ch D 76 …. 1.28 Dillon v Parker (1818) 1 Swans 359; 36 ER 422 …. 7.90 — v Public Trustee of New Zealand [1941] AC 294 …. 19.44 Dimos v Skaftouros (2004) 9 VR 584; [2004] VSCA 141 …. 11.98, 11.104, 11.107, 13.40 Dinshaw, In the Estate of [1930] P 180 …. 10.82 Dion v Rieser [2010] NSWSC 50 …. 9.83, 9.84 Diplock, Re [1948] Ch 465 …. 12.60, 14.43, 14.55 Dippert, Estate of [2001] NSWSC 167 …. 2.65, 2.66, 2.70, 2.75, 11.35 Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54 …. 17.76, 19.38, 20.30,

23.26, 23.28 Dix (deceased), Re [2004] 1 WLR 1399; [2004] EWCA Civ 139 …. 16.53 Dixon, In the Estate of (1969) 90 WN (Pt 1) (NSW) 469 …. 11.87 Dixon v Treasury Solicitor [1905] P 42 …. 5.19 D(J), Re [1982] Ch 237 …. 3.10 Dobson, In the Goods of (1866) LR 1 P & D 88 …. 2.24, 2.25 Dobson v North Tyneside Health Authority [1996] 4 All ER 474 …. 12.5 Docker, In the Will of (1976) 27 FLR 345 …. 10.7 Docking v Schwarzkopf [2015] SASC 18 …. 11.4 Dodd v Jones (2009) 205 LSJS 105; [2009] SASC 458 …. 12.10 — v Lang (SC(NSW), Needham J, 20 July 1989, unreported) …. 4.6 Doddridge v Badenach [2011] TASSC 34 …. 18.34, 18.35 Dodds (deceased), Re Estate of [2013] SASC 56 …. 5.6, 11.20 Dodge v Blissenden [2009] TASSC 116 …. 17.7, 19.10, 19.18 Doe d Biddulph v Hole (1850) 15 QB 848; 117 ER 678 …. 6.3 Doe d Gord v Needs (1836) 2 M & W 129; 150 ER 698 …. 8.42 Doe d Hiscocks v Hiscocks (1839) 5 M & W 363; 151 ER 154 …. 8.42 Doe d Perkes v Perkes (1820) 3 B & Ald 489; 106 ER 740 …. 5.10 Doherty v Doherty [2007] 2 Qd R 259; [2006] QSC 257 …. 12.5, 12.10 Dolan v Dolan [2007] WASC 249 …. 4.49, 23.8 Doland’s Will Trusts, Re [1970] Ch 267 …. 8.6, 8.16 Dolphin v Aylward (1870) LR 4 HL 486 …. 14.18 Donald v Guillesser [2016] 1 Qd R 583; [2015] QCA 92 …. 7.13, 9.17, 11.87 Donkin (deceased), Re [1966] Qd R 96 …. 10.45, 10.46, 10.49, 20.9 Donnelly, Re (1927) 28 SR (NSW) 34 …. 22.35 Donner (deceased), In the Matter of the Estate of (1917) 34 TLR 138 …. 4.29 Donnolley v Clarke (2008) 1 ASTLR 216; [2008] NSWSC 522 …. 8.34 Donohue, In the Will of [1944] QWN 8 …. 11.48 Donovan v Needham (1846) 9 Beav 164; 50 ER 306 …. 14.34, 14.37 Dore v Billinghurst [2006] QSC 140 …. 2.30, 24.22 — v — [2006] QCA 494 …. 24.22 Dorin v Dorin (1875) LR 7 HL 568 …. 8.52 Dorman (deceased), Re [1994] 1 WLR 282 …. 7.34, 7.35 Doughan v Straguszi [2013] QSC 295 …. 3.3 Dougharty, Re [1935] VLR 333 …. 8.50 Douglas v Forrest (1828) 4 Bing 686; 130 ER 933 …. 10.15, 10.58

Douglas (deceased), In the Will of (1951) 51 SR (NSW) 282 …. 13.73 Douglas-Menzies v Umphelby [1908] AC 224 …. 1.6, 7.89 Dow v Hoskins [2003] VSC 206 …. 9.76, 9.83, 9.84, 12.7, 12.10, 16.17 Dowling v Crossley [2013] NSWSC 1040 …. 11.32 — v St Vincent de Paul Society of Victoria Inc [2003] VSC 454 …. 13.30 Downing v Downing [2003] VSC 28 …. 18.9 Dowse v Gorton [1891] AC 190 …. 12.56, 13.22, 13.40 Doyle v Blake (1804) 2 Sch & Lef 231 …. 10.58 — v Smith (SC(NSW), McLaughlin M, 21 September 1994, unreported) …. 20.72 Dr Barnardo’s Homes National Incorporated Association v Special Income Tax Commissioners [1921] AC 1 …. 10.43, 10.47 Drakeford v Cotton [2012] 3 All ER 1138; [2012] EWHC 1414 …. 1.14 Draskovic v Bogicevic [2007] VSC 36 …. 18.18 Drawner, Re (1913) 108 LT 732 …. 10.71, 11.38 Dreger, Re (1976) 9 DLR (3d) 47 …. 7.49 Dridi v Fillmore [2001] NSWSC 319 …. 16.20 Drummond v Davidson [2016] NZHC 1888 …. 2.40 — v Registrar of Probates (SA) (1918) 25 CLR 318 …. 10.83 Duane, In the Goods of (1862) 2 Sw & Tr 590; 164 ER 1127 …. 2.58 Duchess of D’Orléans, In the Goods of the (1859) 1 Sw & Tr 253; 164 ER 716 …. 22.7 Dufficy v Mollica [1968] 3 NSWR 751 …. 1.15, 1.24, 1.26 Duffield v Duffield (1829) 3 Bl NS 260; 4 ER 1334 …. 9.5 Dufour v Pereria (1769) 1 Dick 419; 21 ER 332 …. 1.40, 1.45 Dugan v Mirror Newspaper Ltd (1978) 142 CLR 583 …. 7.47 Duke of Norfolk Settlements Trusts, Re [1982] Ch 61 …. 13.54, 13.57 Dukes, Re Trustee for Estate of v Federal Commissioner of Taxation (2002) 50 ATR 1060; [2002] AATA 574 …. 10.53 Dummer v Pitcher (1833) 2 My & K 262; 39 ER 944 …. 7.90 Dun v Dun (1959) 100 CLR 361 …. 20.57 Dunbar v Plant [1997] 4 All ER 289 …. 7.52, 7.68 — v — [1998] Ch 412 …. 7.51, 7.70 Dunbar Bank plc v Nadeem [1998] 3 All ER 876 …. 2.40 Duncan, Re [1939] VLR 355 …. 20.57 Duncan v Perpetual Trustees WA Ltd (SC(WA), Bredmeyer M, 4 March 1994,

unreported) …. 17.26 Dundas v Wolfe Murray (1863) 1 H & M 425; 71 ER 185 …. 14.35 D’Unienville v Sakalo (No 2) [2013] WASC 469 …. 4.30, 4.39, 4.48, 5.3 Dunk v Public Trustee [2003] NSWSC 37 …. 16.18 Dunn, Estate of [1963] VR 165 …. 10.45 Dunn, Estate of [2002] NSWSC 900 …. 4.44, 23.8 Dunn v Dunn (1866) LR 1 P & D 277 …. 6.1 Dunne, Re [1934] VLR 307 …. 13.59 Dunne v Byrne (1912) 16 CLR 500 …. 23.9 — v Dunne (2013) 12 ASTLR 299; [2013] VSC 1911 …. 17.16, 23.37 Durance, In the Goods of (1872) LR 2 P & D 406 …. 5.8 Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62 …. 17.24, 17.30, 20.54 — v — [2010] NSWSC 389 …. 17.24, 17.30 Durrant v Friend (1852) 5 De G & Sm 343; 64 ER 1145 …. 7.23 Dutton (deceased), In the Goods of (1863) 3 SW & Tr 66; 164 ER 1197 …. 5.10 DWS (deceased), Re [2001] Ch 568 …. 7.65, 9.14 E Eagles, Re the Will of [1990] 2 Qd R 501 …. 4.32 Earl of Radnor’s Trusts, Re (1890) 45 Ch D 402 …. 23.42 Earl of Stamford, Re [1896] 1 Ch 288 …. 10.46 Earl of Strafford (deceased), Re [1980] Ch 28 …. 13.30 Easterbrook v Young (1977) 136 CLR 308 …. 15.9, 17.26, 20.6, 20.7, 20.8, 20.9 Eatts v Gundy [2015] 2 Qd R 559; [2014] QCA 309 …. 9.18 Ebert v Ebert [2008] NSWSC 1206 …. 17.24 Eccles v Salvation Army [2013] WASC 142 …. 8.14 Eckersley v Platt (1866) LR 1 P & D 281 …. 5.10 Eckford v Eckford (1924) 25 SR (NSW) 78 …. 7.92 Eden v Wilson (1852) 4 HLC 257; 10 ER 461 …. 8.16 Edgar v Public Trustee for the Northern Territory [2011] NTSC 21 …. 18.23, 19.8, 23.33 — v — [2011] NTSC 5 …. 17.4, 18.5 Edgar (deceased), Re [1919] VLR 683 …. 4.29

Edmonds v Morrissey [2016] NSWSC 342 …. 8.50 Edmonds (deceased), Re [2016] SASC 41 …. 5.14 Edmondson, Re (1907) 26 NZLR 1404 …. 13.70 Edmondson’s Will Trusts, Re [1972] 1 All ER 444 …. 8.62 Edwards, Re (1890) 63 LT 481 …. 8.69 Edwards, Re [1906] 1 Ch 570 …. 9.4 Edwards v Edwards (2009) 25 VR 40; [2009] VSC 190 …. 1.2, 2.3 — v State Trustees Ltd [2016] VSCA 28 …. 7.47, 7.54, 7.55 Edwards (deceased), Re [1946] VLR 71 …. 10.7 Edwards (deceased), Re [1958] Ch 168 …. 7.81, 7.90 Edwards (deceased), Re [1964] VR 551 …. 8.6 Edwards (deceased), Re [1981] VR 794 …. 8.39 Edwards-Taylor, In the Goods of [1951] P 24 …. 11.38 Egan (deceased), Re [1963] VR 318 …. 11.24, 11.30 Egan v O’Brien [2006] NSWSC 1398 …. 7.63 Egel, Re [1939] SASR 477 …. 23.5 Egen (deceased), Re [1951] NZLR 323 …. 11.60 Eggins v Robinson [2000] NSWCA 61 …. 17.5 Ekert v Mereider (1993) 32 NSWLR 729 …. 7.58, 7.61, 7.67 Elders Trustee & Executor Co Ltd v Eastoe [1963] WAR 36 …. 7.81, 7.84 Elliot v Joicey [1935] AC 209 …. 8.55 Elliott v Kemp (1840) 7 M & W 306; 151 ER 783 …. 11.82 — v Simmonds [2016] WTLR 1355; [2016] EWHC 732 …. 2.5, 24.6 Ellis v Ellis [1905] 1 Ch 613 …. 11.95 — v — [2006] EWHC 1989 …. 11.50 — v — [2015] WASC 77 …. 12.18, 12.41, 12.42, 12.46, 12.48, 14.32 Elme v da Costa (1791) 1 Phil 173; 161 ER 952 …. 11.26 Elms, In the Will of [1964–5] NSWR 286 …. 4.56 Ely (Dean & Chapter of) v Gayford (1853) 16 Beav 561; 51 ER 896 …. 11.54 El-Zaouk v Draybi [2010] NSWSC 1001 …. 17.20, 17.21 EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59 …. 23.4 England, In the Will of (1900) 22 ALT 86 …. 11.33 Enjakovic (deceased), Re Estate of (2008) 100 SASR 486; [2008] SASC 72 …. 11.17, 11.18 Enoch v Public Trustee of Queensland [2006] 1 Qd R 144; [2005] QSC 194 …. 17.25, 17.35

Ensor v Frisby [2010] 1 Qd R 146; [2009] QSC 268 …. 7.35, 7.40 Epheser (deceased), Re Estate of (2008) 1 ASTLR 112; [2008] SASC 311 …. 2.68 Equity Trustees Ltd v Levin [2004] VSC 203 …. 4.38 Erlich v Fleiszig [2013] VSC 63 …. 17.25, 17.37, 17.39, 18.52 Ernst v Mowbray [2004] NSWSC 1140 …. 17.48 Esplin v Timms (2010) 3 ASTLR 150; [2010] NSWSC 339 …. 11.95 Estall (deceased), Re Estate of [2011] SASC 188 …. 14.29 Esterhuizen v Allied Dunbar Assurance plc [1998] 2 FLR 668 …. 24.4 Eteson, In the Will of (1927) 28 SR (NSW) 119 …. 6.1, 6.7, 6.16 Evans, In the Goods of (1890) 15 PD 215 …. 11.50 Evans, Re (1887) 34 Ch D 597 …. 13.40 Evans, Re [1909] 1 Ch 784 …. 8.69, 8.70 Evans v Evans (1910) 10 SR (NSW) 594 …. 12.46 — v Levy [2011] NSWCA 125 …. 19.47 — v Tyler (1849) 2 Rob Ecc 128; 163 ER 1266 …. 10.68 Everest (deceased), Re [1975] Fam 44 …. 5.10 Everett, Re [1917] SALR 52 …. 7.82, 7.88 Exception Holdings Pty Ltd (in liq) v Albarran (2005) 223 ALR 487; [2005] NSWSC 677 …. 11.90, 11.91 Executor Trustee Australia Ltd v Blum (2007) 250 LSJS 452; [2007] SASC 329 …. 13.36 — v Henderson [2005] SASC 446 …. 11.50 — v McDougall (2011) 110 SASR 462; [2011] SASC 140 …. 11.94, 11.99, 11.105 Eyre, Re [1917] 1 Ch 331 …. 14.36 Ezekiel’s Settlement Trusts, Re [1942] Ch 230 …. 13.31 F Fairburn v Healey [2009] WASC 114 …. 10.23, 10.24 Fairlie-Jones (deceased), In Estate of (2013) 116 SASR 172; [2013] SASC 59 …. 10.4 Fairweather v Fairweather (1944) 69 CLR 121 …. 6.11, 6.12, 7.32 Falcon v Famous Players Film Co [1926] 2 KB 474 …. 1.43 Falkingham v Falkingham [2002] NSWSC 534 …. 16.35, 20.45 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 …. 17.19

Farrell v Cox (1898) 19 LR (NSW) Eq 103 …. 12.22 Farrow v Wilson (1869) LR 4 CP 744 …. 12.15 Fast v Rockman [2013] VSC 18 …. 4.38, 4.39, 4.52, 11.18 Faulkner, Re [1999] 2 Qd R 49 …. 17.48 Faulkner v Daniel (1843) 3 Hare 199; 67 ER 355 …. 11.53 Fawcett v Crompton [2010] NSWSC 219 …. 2.77 Fawcett (deceased), In the Estate of [1941] P 85 …. 11.35 Fazari v Cosentino [2010] WASC 40 …. 1.49 Fazio v Naso [2016] WASC 385 …. 11.58 Fede v Dell’Arte [2010] NSWSC 1113 …. 16.14, 16.23, 16.31, 18.39 Federal Commissioner of Taxation v Cornell (1946) 73 CLR 394 …. 7.42 — v Ramsden (2005) 58 ATR 485; [2005] FCAFC 39 …. 7.42, 7.43 — v Whiting (1943) 68 CLR 199 …. 10.53, 10.54 Feehan v Toomey [2014] VSC 488 …. 18.37 Fegan, Re [1928] Ch 45 …. 14.9 Fell, In the Goods of (1861) 2 Sw & Tr 126; 164 ER 941 …. 10.60 Fell v Fell (1922) 31 CLR 268 …. 8.5, 8.16, 8.18, 8.24, 8.25, 9.4, 10.1 Fenton (deceased), Re [1919] VLR 740 …. 1.2 Fenwick, Re Application of (2009) 76 NSWLR 22; [2009] NSWSC 530 …. 3.1, 3.2, 3.3, 3.5, 3.6, 3.7, 3.16, 3.17, 3.19, 3.20 Fenwick (deceased), Re [1972] VR 646 …. 2.28 Fergusson’s Will, Re [1902] 1 Ch 483 …. 22.22 Ferneley v Napier [2011] WTLR 1303; | [2010] EWHC 3345 …. 11.23 Fernie, In the Goods of (1849) 6 Notes of Cases 657 …. 11.40 Feron, Re [2012] 2 NZLR 551 …. 4.31 Ferrall (deceased), Re Estate of (2011) 111 SASR 79; [2011] SASC 187 …. 10.5 Ferrari, Re Estate of [1999] WASC 50 …. 13.37 Ffinch v Combe [1894] P 191 …. 5.48 Fielder v Burgess [2014] SASC 98 …. 2.14, 4.34, 4.36, 8.4, 9.4, 23.6 Fielding, Re [1946] VLR 153 …. 11.91 Fincham v Edwards (1842) 3 Curt 63; 163 ER 656 …. 2.34 Finlay v Tucker [2015] NSWSC 560 …. 13.63 Finn, Re [1942] VLR 125 …. 11.25 Finnegan v Cementation Co Ltd [1953] 1 QB 688 …. 11.78 Finn’s Estate, Re (1935) 52 TLR 153 …. 4.6

Fiorentini v O’Neill (CA(NSW), Mason P, Handley JA and Fitzgerald AJA, 4 December 1998, unreported) …. 20.16, 23.26, 23.27, 23.28, 23.33 — v — (SC(NSW), Cowdroy AJ, 4 December 1998, unreported) …. 18.32 Firns v Firns [2000] NSWSC 396 …. 11.1 Fischer v Diffley [2014] WTLR 757; [2013] EWHC 4567 …. 2.5 — v Howe (2013) 85 NSWLR 67; [2013] NSWSC 462 …. 24.33 Fisher, In the Will of [1948] VLR 8 …. 14.9 Fisher v Mansfield [1997] 2 NZLR 320 …. 1.49 Fitch v Hyde-Cates (1981) 150 CLR 482 …. 12.19 Fitter (deceased), Re Estate of [2005] NSWSC 1188 …. 7.48, 7.69 Fitzgibbons v Fitzmaurice [2014] NZAR 807; [2014] NZHC 710 …. 2.10 Fitzpatrick (deceased), Re [1952] Ch 86 …. 22.9 Fitzwood Pty Ltd v Unique Goal Pty Ltd (in liq) (2001) 188 ALR 566; [2001] FCA 1628 …. 24.24 Flanders v Clarke (1747) 3 Atk 509; 26 ER 1093 …. 10.82 Fleck, Re (1888) 37 Ch D 677 …. 14.9 Fleetwood, Re (1880) 15 Ch D 594 …. 4.74 Fletcher, Re [2001] VSC 109 …. 3.13 Fletcher (deceased), Re [1921] NZLR 649 …. 19.27, 20.23 Fletcher v Burns (1997) 12 BPR 22,937 …. 11.91 Flocas v Carlson [2015] VSC 221 …. 1.40, 1.42, 1.43, 1.45, 1.48, 16.49, 19.33 Flynn v Roccisano [2004] VSC 346 …. 2.2 Flynn (deceased), Re [1982] 1 All ER 882 …. 2.20, 11.30 Fogarty (No 2), Re Estate of [2007] ACTSC 40 …. 23.5 Foley v Ellis [2008] NSWCA 288 …. 17.68, 19.16, 19.19, 19.20 Follett (deceased), Re [1955] 2 All ER 22 …. 8.16 Ford, Re Estate [2016] NSWSC 6 …. 13.43, 13.44, 13.49 Ford v Simes [2009] NSWCA 351 …. 19.11, 19.17 Forde v Lee [2013] WASC 328 …. 2.14 Forrest, In the Will of [1913] VLR 425 …. 13.48 Forster v Ridley (1864) 4 De GJ & S 452; 46 ER 993 …. 13.43 Forsyth v Sinclair [2010] VSCA 147 …. 16.18, 16.48, 16.49, 17.78, 19.33, 20.56 — v — (No 2) (2010) 28 VR 635; [2010] VSCA 195 …. 20.57, 23.22, 23.25 Foss, In the Will of [1973] 1 NSWLR 180 …. 5.28, 5.31 Foster, Re [1930] NZLR 60 …. 10.65

Foster v Bates (1843) 12 M & W 226; 152 ER 1180 …. 11.82 Foster (deceased), Re [1956] NZLR 44 …. 2.72 Foster (deceased), Re Will and Estate of [2012] VSC 315 …. 13.49, 13.72, 24.18 Fountain Forestry Ltd v Edwards [1975] Ch 1 …. 11.90, 11.91 Fowler v Fowler (1735) 3 P Wms 353; 24 ER 1098 …. 7.72 — v Nield [1961] SR (NSW) 152 …. 23.41 Fox v Burville (1955) 92 CLR 334 …. 20.57 Fox’s Estate, Re [1937] 4 All ER 664 …. 7.60 Foy v Public Trustee (1942) 42 SR (NSW) 209 …. 11.74 Foye v Foye [2008] NSWSC 1305 …. 17.7, 17.8 Franczak, Estate of (2011) 8 ASTLR 160; [2011] SASC 70 …. 13.12 Fraser, In the Goods of (1869) LR 2 P & D 40 …. 5.8 Fraser, Re [1904] 1 Ch 726 …. 6.2, 7.10 Fraser v Murdoch (1881) 6 App Cas 855 …. 13.17, 13.40 Fred Long & Son Ltd v Burgess [1950] 1 KB 115 …. 11.74, 11.82 Freebairn (deceased), In the Estate of (2005) 93 SASR 415; [2005] SASC 497 …. 11.60, 11.64, 13.12, 14.29 Freeland, Re [1952] 1 Ch 110 …. 14.22 Freeman v Fairlie (1812) 3 Mer 24; 36 ER 10 …. 12.30 — v Jaques [2005] QSC 200 …. 18.46, 18.47, 18.49 — v Jaques [2006] 1 Qd R 318; [2005] QCA 423 …. 18.46, 18.47, 18.49, 20.57 Freeston’s Charity, Re [1979] 1 All ER 51 …. 12.56 French, In the Estate of [1910] P 169 …. 11.43 Frey v Frey (2009) 3 ASTLR 470; [2009] QSC 43 …. 17.30, 17.36, 17.37, 19.33, 20.9 Friedlos v Hampton [2013] WASC 105 …. 18.3 Friend v Brien [2014] NSWSC 613 …. 15.14, 20.44 — v — (No 2) [2014] NSWSC 614 …. 23.25 Friesen and Holmberg v Friesen Estate (1985) 33 Man R (2d) 98 …. 24.6 Frisoli v Kourea [2013] NSWSC 1166 …. 18.3 Frizelle v Old [2009] NSWSC 1259 …. 18.33, 19.10, 19.19 Frizzo v Frizzo [2011] QCA 308 …. 2.7 Frost v Bovaird (2014) 223 FCR 275; [2014] FCAFC 20 …. 12.44 Fry v Densham-Smith [2011] WTLR 387; [2010] EWCA Civ 1410 …. 1.43 — v Fry [2014] NZHC 2256 …. 18.47

— v Tapson (1884) 28 Ch D 268 …. 12.29 FS, In the Goods of (1850) 14 Jur 402 …. 2.72 Fuld (deceased), In the Estate of (No 3) [1968] P 675 …. 22.14 Fullard (deceased), Re [1982] Fam 42 …. 17.63, 18.13, 18.17, 18.20, 23.29 Fuller v Strum [2002] 2 All ER 87; [2001] EWCA Civ 1879 …. 2.36, 2.37, 2.38 Fullerton’s Will, Re (1885) 6 LR (NSW) P & D 15 …. 13.67 Fulop (deceased), Re (1987) 8 NSWLR 679 …. 18.46 Fulton, Re [1994] 2 Qd R 505 …. 11.11 Fulton v Andrew (1875) LR 7 HL 448 …. 2.28, 2.30, 2.36, 2.53, 2.58, 11.16 — v Fulton [2014] NSWSC 619 …. 19.4 Fundel v Wall (2009) 10 NZCPR 153 …. 1.49 Fung v Ye [2007] NSWCA 115 …. 15.1, 16.1, 16.6, 16.20, 18.22, 18.32, 20.45, 20.56 Furness, Re [1901] 2 Ch 346 …. 7.82, 7.88 Furness (deceased), Re [1943] Ch 415 …. 12.46 Fysh v Coote [2000] VSCA 150 …. 11.104, 11.107 G G, CL, Re [2015] SASC 80 …. 3.9 Gabriele v Gabriele (No 2) [2015] VSC 165 …. 20.25 Gage, Re [1934] Ch 536 …. 7.25 Galbraith, In the Goods of [1951] P 422 …. 11.95 Gale v Gale (1914) 18 CLR 560 …. 8.18, 23.41 Gall (deceased), Re (2008) 260 LSJS 12; [2008] SASC 349 …. 5.6 Galt v Compagnon (SC(NSW), Einstein J, 24 February 1998, unreported) …. 20.58 Gamble, In the Estate of (1915) 32 WN (NSW) 121 …. 13.15, 13.16, 13.21 Gambling (deceased), Re [1966] SASR 134 …. 13.54, 13.72 Gamer v Whip [2012] QSC 209 …. 1.3, 7.43, 7.45 Gannon, In the Will of (1915) 15 SR (NSW) 251 …. 12.50 Gard (deceased), Re [1965] SASR 244 …. 8.26 Gardiner v Gardiner [2012] NSWSC 269 …. 20.22 — v — [2014] NSWSC 435 …. 17.57 — v — (SC(NSW), Santow J, 28 May 1998, unreported) …. 17.68, 17.70 Gardner, Re [1920] 2 Ch 523 …. 4.75

Gardner (deceased), Re [1948] QWN 41 …. 10.84 Gare (deceased), Re [1952] Ch 80 …. 8.34 Garland, Ex parte (1803) 10 Ves 111; 32 ER 786 …. 13.40 Garland v Dillon [2005] TASSC 111 …. 11.21 Garrett v Noble (1834) 6 Sim 504; 58 ER 683 …. 12.2, 13.11 Gartside v Sheffield, Young & Ellis [1983] NZLR 37 …. 24.2, 24.31 Garwoli v Garwoli [2015] SASC 1 …. 11.26 Gattward v Knee [1902] P 99 …. 4.28 GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308 …. 3.2, 3.3 Geffen v Goodman Estate (1991) 81 DLR (4th) 211 …. 23.44 GEL Custodians Pty Ltd v Estate of late Wells [2013] NSWSC 973 …. 11.74, 11.75 Gell v Gell (2005) 63 NSWLR 547; [2005] NSWSC 566 …. 11.12, 11.13 Gellibrand v Murdoch (1937) 58 CLR 236 …. 14.8 Gellibrand’s Will, Re (1939) 34 Tas LR 1 …. 14.42 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 …. 17.19 Geoghegan v Szelid [2011] NSWSC 1440 …. 16.20, 23.22 George, Re (1877) 5 Ch D 837 …. 14.33 George v Hibberson (1987) DFC ¶95-054 …. 9.84 — v McDonald (1992) 5 BPR 11,659 …. 13.11 George’s Will Trusts, Re [1949] Ch 154 …. 7.87 Gerard (deceased), Re Estate of (2007) 1 ASTLR 206; [2007] SASC 362 …. 11.21 Gertsch v Roberts (1993) 35 NSWLR 631 …. 11.78, 11.79 Gertsman (deceased), Re [1966] VR 45 …. 14.33, 14.36, 14.37 Gess, Re [1942] Ch 37 …. 11.7 Ghafoor v Cliff [2006] 2 All ER 1079; [2006] EWHC 825 …. 11.56, 11.58 Ghidella, Re Estate of [2005] QSC 106 …. 13.50, 13.51, 13.52, 13.71 Giarrusso v Veca and Michielin (2015) 13 ASTLR 132; [2015] VSCA 214 …. 2.17 Gibbon (deceased), Re Will of (1889) 3 QLJ 120 …. 13.68 Gibbs (deceased), Re [1951] Ch 933 …. 10.43 Gibson, Re (1866) LR 2 Eq 669 …. 7.30 Gibson v Bott (1802) 7 Ves 89; 32 ER 37 …. 14.36 — v Gibson (HC(NZ), Tipping J, 15 April 1992, unreported) …. 1.38

— v Haselgrove [2009] NSWSC 496 …. 17.24, 17.35 Gibson (deceased), In the Estate of [1949] P 434 …. 4.13 Gibson (deceased), Re [2014] 1 Qd R 553; [2012] QSC 183 …. 7.11, 7.37 Gifford, Re [1944] Ch 186 …. 8.27 Gigliotti v Gigliotti [2002] VSC 279 …. 19.7, 19.42 Gilbert (deceased), Re Will of (1946) 46 SR (NSW) 318 …. 17.7, 19.14 Gilchrist v Equity Trustees Ltd [2011] VSC 107 …. 17.26, 17.27, 17.32, 20.8 Gilchrist (deceased), Re [1990] SLT 494 …. 7.70 Giles v Giles (1836) 1 Keen 685; 48 ER 471 …. 2.49 Giles (deceased), Re [1972] Ch 544 …. 7.51, 7.57 Gill, In the Goods of (1869) LR 2 P & D 6 …. 4.66 Gill, In the Goods of (1873) LR 3 P & D 113 …. 10.59 Gill v Gill [1909] P 157 …. 5.12 Gillard (deceased), Re [1949] VLR 378 …. 11.102 Gillepsie, Re Estate of (SC(NSW), Powell J, 25 October 1991, unreported) …. 2.73 Gillespie, Re [1969] QWN 32 …. 7.90 Gillett v Holt [2001] Ch 210 …. 1.30 Gilligan (deceased), In the Goods of [1950] P 32 …. 5.33 Gillson (deceased), Re [1949] Ch 99 …. 8.15 Gimblett, Re [1960] NZLR 664 …. 17.48 Gitsham [1929] VLR 305 …. 13.70 Gladstone v Tempest (1840) 2 Curt 650; 163 ER 538 …. 5.3 Glazier Holdings Pty Ltd v Australian Men’s Health Pty Ltd (No 2) [2001] NSWSC 6 …. 12.31 Gleeson v Gleeson (1886) 12 VLR 783 …. 14.34, 14.37 Glukman, Re [1908] 1 Ch 552 …. 11.83 Glynne v NSW Trustee and Guardian [2011] NSWSC 535 …. 18.15 Goddard Elliott (a firm) v Fritsch [2012] VSC 87 …. 24.7 Godfrey (deceased), Re [1944] NZLR 476 …. 4.28 Godman v Godman [1919] P 229 …. 4.28 Goenaga, Re [1949] P 367 …. 22.7 Goldberg v Landerer [2010] NSWSC 1431 …. 18.31, 19.4, 19.12, 20.25 Goldie v Adam [1938] P 85 …. 6.13, 6.15 Goldsworthy v Brickell [1987] Ch 378 …. 24.21 Golosky v Golosky (CA(NSW), Kirby P, Handley and Cripps JJA, 5 October

1993, unreported) …. 18.3, 18.5, 18.6, 18.10, 18.12, 20.54 Gonin (deceased), Re [1979] Ch 16 …. 14.19, 14.21, 14.23 Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508 …. 14.48 — v — (2003) 58 NSWLR 211; [2003] NSWCA 227 …. 14.48 Goodacre v Smith (1867) LR 1 P & D 359 …. 23.13 Goodchild v James (1994) 13 WAR 229 …. 17. Goodchild (deceased), Re [1996] 1 All ER 670 …. 1.43, 1.44, 1.45, 1.50 Goodchild (deceased), Re [1997] 3 All ER 63 …. 1.42, 1.43, 1.44, 1.45, 1.50 Goodes, Re [1922] SASR 180 …. 5.6 Goodman v Windeyer (1980) 144 CLR 490 …. 15.19, 15.20, 15.21, 17.65, 17.67, 17.68, 17.71 Goodman Estate v Geffen (1990) 67 DLR (4th) 765 …. 23.44 Goodwin (deceased), Re [1969] 1 Ch 283 …. 17.81, 19.37 Goonewardene v Goonewardene [1931] AC 647 …. 6.2 Gordon v Beere [1962] NZLR 257 …. 11.22, 11.23 — v Gordon (1871) LR 5 HL 254 …. 8.21 Gordon’s Will Trusts, Re 1978] Ch 145 …. 7.90, 7.91, 7.93 Gorman v Gorman [2003] NSWSC 647 …. 20.11 — v McGuire [2002] NSWSC 1089 …. 11.105 Gorton v Parks (1989) 17 NSWLR 1 …. 15.14, 15.24, 18.34 Gorton (deceased), Re the Will of (1910) 29 NZLR 733 …. 4.66 Gough (deceased), Estate of (1973) 5 SASR 559 …. 17.49 Gouk (deceased), Re [1957] 1 WLR 493 …. 8.31 Gould v Gould [2005] NSWSC 914 …. 11.36, 11.105 Government Insurance Office v Johnson [1981] 2 NSWLR 617 …. 10.7, 11.54 Government of India, Ministry of Finance (Revenue Division) v Taylor [1955] AC 491 …. 22.11 Govier (deceased), Re [1950] P 237 …. 2.24 Gowans v Watkins (SC(Vic), Teague J, 21 February 1996, unreported) …. 11.99, 11.101, 11.104 Goward, Re [1997] 2 Qd R 54 …. 2.73 Gowing, Re Estate (2014) 17 BPR 32,763; [2014] NSWSC 247 …. 13.32, 13.43, 13.44, 13.49, 13.50 Grace v Grace [2012] NSWSC 976 …. 12.47 Graham v Bonnycastle (2004) 36 Alta LR (4th) 203 …. 24.36, 24.37 — v Drummond [1896] 1 Ch 968 …. 10.45

— v Graham [2011] NSWSC 504 …. 17.7 — v Wickham (1863) 1 De GJ & Sm 474; 46 ER 188 …. 1.32 Graham (deceased), Re Estate of (1978) 20 SASR 198 …. 4.33, 4.37 Granot v Hersen (1999) 173 DLR (4th) 227 …. 7.90, 7.91, 7.92 Grant of Presumption of Death, Re Application for (2008) 1 ASTLR 406; [2008] WASC 49 …. 11.7 Graves, In the Goods of (1828) 1 Hagg Ecc 313; 162 ER 597 …. 11.49 Gray, Re (1887) 36 Ch D 205 …. 7.5, 7.6, 7.28 Gray, Re Estate of [2010] VSC 173 …. 13.44 Gray v Gray (2004) 12 BPR 22,755; [2004] NSWCA 408 …. 14.24, 14.25 — v Guardian Trust Australia Ltd [2003] NSWSC 704 …. 13.36 — v Hart [2012] NSWSC 1435 …. 2.6, 2.8, 2.11 — v — (No 2) (2012) 10 ASTLR 379; [2012] NSWSC 1562 …. 23.5, 23.7 — v Perpetual Trustee Co Ltd [1928] AC 391 …. 1.42 — v Perpetual Trustee Company Ltd (1928) 40 CLR 558 …. 23.9 Grayburn v Clarkson (1868) LR 3 Ch App 605 …. 13.11, 14.27 Grazebrook, Re [1928] VLR 212 …. 23.39 Graziani v Graziani (SC(NSW), Cohen J, 20 February 1987, unreported) …. 18.46, 18.49, 18.50 Greaves v Stolkin [2013] WTLR 1793; [2013] EWHC 1140 …. 2.27 Greely v Greely (2011) 5 ASTLR 534; [2011] VSC 416 …. 17.82 Green v Green (1989) 17 NSWLR 343 …. 16.16 — v — [2015] NZHC 1218 …. 2.6, 2.13, 2.17 — v Harvey (1842) 1 Hare 428; 66 ER 1100 …. 8.31 — v Holtom [2006] WASC 1 …. 19.16 — v Perpetual Trustee Co Ltd (SC(NSW), Hodgson J, 10 July 1985, unreported) …. 19.27, 20.22 — v Tribe (1878) 9 Ch D 231 …. P.1, 6.11 — v Tribe (1878) Ch D 231 …. Green (deceased), Re [1951] Ch 148 …. 1.43, 1.50 Green (deceased), Re [1951] NZLR 135 …. 19.38 Greenough v Martin (1842) 2 Add 239; 162 ER 281 …. 5.3 Greenway v McKay (1911) 12 CLR 310 …. 11.50, 11.53 Greer, In the Will of (1911) 11 SR (NSW) 21 …. 13.63 Gregg v Perpetual Trustee Co (1918) 18 SR (NSW) 252 …. 7.89 Gregg (deceased), Re [2013] WASC 325 …. 4.38, 4.52

Gregory v Hudson (1997) 41 NSWLR 573 …. 2.79, 2.81 — v — (1998) 45 NSWLR 300 …. 2.79, 2.81 — v — [1999] NSWCA 221 …. 18.2, 18.3 — v — (No 2) (SC(NSW), Young CJ in Eq, 18 September 1997, unreported) …. 18.2 — v Taylor [1917] P 256 …. 2.28 Greif (deceased), Re [2005] VSC 266 …. 11.97 Greville v Tylee (1851) 7 Moo PC 320; 13 ER 904 …. 5.43 Grey v Harrison [1997] 2 VR 359 …. 15.1, 15.10, 15.12, 17.65, 19.27, 20.44 — v Youngson [2006] WASC 123 …. 11.101 Griffin, Re [1925] P 38 …. 11.50 Griffin v Boardman [2009] SASC 315 …. 3.3 Griffith (deceased), Re Estate of (1995) 217 ALR 284 …. 2.2, 2.9, 2.10, 2.12, 2.17 Griffiths v Lewis (2013) 11 ASTLR 152; [2013] VSC 609 …. 11.102 — v Westernhagen [2008] NSWSC 851 …. 16.25 Grigoriou v Nitsos [1999] WASCA 42 …. 17.35 Groffman (deceased), Re [1969] 2 All ER 108 …. 4.12, 4.20 Groll, Re Estate of [2009] NTSC 14 …. 11.20 Groos, In the Estate of [1904] P 269 …. 22.7 Groos, Re [1915] 1 Ch 572 …. 22.21 Groser v Equity Trustees Ltd (2007) 16 VR 101; [2007] VSC 27 …. 17.27, 17.29, 17.37, 17.39, 17.43, 20.8 Grosert, Re [1985] 1 Qd R 513 …. 4.32, 11.19 Grosvenor, Re [1944] 1 Ch 138 …. 11.86 GT Robinson, In the Goods of (1870) LR 2 P & D 171 …. 2.23 Guardhouse v Blackburn (1866) LR 1 P & D 109 …. 2.28, 2.48, 2.57, 2.58, 2.60 Guardian Trust and Executors Company of New Zealand Ltd v Darroch [1973] 2 NZLR 143 …. 5.5 — v Hall [1938] NZLR 1020 …. 10.43 — v Inwood [1946] NZLR 614 …. 2.72 — v Public Trustee of New Zealand [1942] AC 115 …. 11.108, 14.45, 14.51, 14.53, 14.57, 17.48 Guest v Webb [1965] VR 427 …. 4.64, 4.70, 4.75 Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151 …. 18.25,

20.26, 20.27 Gunstan, In the Goods of (1882) LR 7 PD 102 …. 4.12 Guskett, Re [1947] VLR 212 …. 17.32, 17.37 Gutherie v Hawkins (1883) 12 Ch D 573 …. 7.44 Guyton and Rosenberg’s Contract, Re [1901] 2 Ch 591 …. 8.72 Gwynne (deceased), In the Estate of (1988) 48 SASR 209 …. 4.36 H H, Re [1990] 1 FLR 441 …. 7.51, 7.70 H (Minors), Re [1996] AC 563 …. 2.48 H Stanke & Sons Pty Ltd v Von Stanke (2007) 250 LSJS 149; [2007] SASC 282 …. 10.46 Hackett v Public Trustee for the Australian Capital Territory (1997) 138 FLR 323 …. 19.11, 19.25, 19.38, 19.50, 20.22 Hadfield v Hadfield [2010] NSWSC 561 …. 17.26, 17.27 Hadley v McNamara (SC(NSW), Young J, 7 December 1995, unreported) …. 20.33 Hagger, Re [1930] 2 Ch 190 …. 1.43, 1.49, 1.52 Haimes v Goode (1933) 33 SR (NSW) 1 …. 14.9 Halbert v Mynar [1981] 2 NSWLR 659 …. 11.7, 11.87 Halfhide v Beaven [2003] NSWSC 1207 …. 10.43, 10.44, 13.4, 13.8 Hall, In the Estate of (2011) 120 SASR 1; [2011] SASC 117 …. 11.20 Hall, In the Goods of (1871) LR 2 P & D 256 …. 5.43 Hall v Bennett Estate (2003) 227 DLR (4th) 263 …. 24.7 — v — (2003) 64 OR (3d) 191 …. 24.2 — v Carney (2012) 281 LSJS 52; [2012] SASCFC 76 …. 2.39, 2.46 — v — (No 2) [2012] SASCFC 105 …. 23.41 — v Hall (1868) LR 1 P & D 481 …. 2.39 — v Hallet (1784) 1 Cox Eq Cas 134; 29 ER 1096 …. 12.22, 12.44 — v Peck [2011] WTLR 605 …. 12.22 Hall (deceased), In the Estate of [1914] P 1 …. 7.51 Hall (deceased), In the Estate of [1943] 2 All ER 159 …. 11.17, 11.18 Hall (deceased), Re (1958) 59 SR (NSW) 219 …. 17.45 Hall (deceased), Re [1918] VLR 448 …. 8.30 Hallam v Maxwell [1998] VSC 131 …. 17.70 Halley, Re (1959) 43 MPR 79 …. 14.22

Hambly v Trott (1776) 1 Cowp 371; 98 ER 1136 …. 12.19 Hamilton v Hamilton (1913) 30 WN (NSW) 46 …. 11.1, 23.19 — v Moir [2013] NSWSC 1200 …. 16.35 — v Nelson [2012] SASC 219 …. 2.13, 11.18 Hamilton (deceased), Re [1941] VLR 60 …. 5.26 Hammersley v De Biel (1845) 12 Cl & Fin 45; 8 ER 1312 …. 1.32, 1.36 Hammond, Re (1903) 3 SR (NSW) 270 …. 13.22, 13.23, 13.24 Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359 …. 15.18, 19.26, 20.20, 20.21, 20.23, 20.55, 20.56 Hancock, Re [1998] 2 FLR 346 …. 18.26 Hancock v Watson [1902] AC 14 …. 8.35 Hannah Raw Ward (deceased), In the Estate of [1957] SASR 125 …. 8.13, 8.32 Hansen v Hennessey (No 2) [2014] VSC 115 …. 20.37 — v Young [2004] 1 NZLR 37 …. 24.11 Haque v Haque (No 2) (1965) 114 CLR 98 …. 22.2 Harcourt, Re [1921] 2 Ch 491 …. 8.14 Harcourt, Re [1932] 1 Ch 491 …. 8.4 Hardgrave, Re [1978] Qd R 471 …. 14.38 Hardiman v Beal & Morris (1956) 58 WALR 20 …. 12.1 Hardware Services Pty Ltd v Primac Association Ltd [1988] 1 Qd R 393 …. 24.24 Hardyman, Re [1925] Ch 287 …. 6.3, 6.5 Hare v Robarts (1859) 7 HLC 429; 11 ER 172 …. 8.14 Hargreaves, Re (1890) 44 Ch D 236 …. 14.13 Hargrove, Re [1915] 1 Ch 398 …. 7.91 Harkness v Harkness [2011] NSWSC 1421 …. 16.20 — v — (No 2) [2012] NSWSC 35 …. 23.30 Harneiss v Public Trustee (1940) 40 SR (NSW) 414 …. 1.15, 1.21, 1.25 Harries, In the Will of (1891) 17 VLR 116 …. 10.40 Harrigan, Re Estate of [2012] NSWSC 291 …. 17.4 Harris, In the Goods of (1870) LR 2 P & D 83 …. 10.4 Harris, Re [1909] 2 Ch 206 …. 7.92 Harris, Re [1936] SASR 497 …. 19.7 Harris v Ashdown (1985) 3 NSWLR 193 …. 8.52 — v Bagot’s Executor and Trustee Company Ltd [1935] SASR 355 …. 23.19

— v Bennett (No 3) (2004) 8 VR 425; [2004] VSC 171 …. 19.1 — v Harris (1919) 20 SR (NSW) 61 …. 14.44 — v Knight (1890) 15 PD 170 …. 11.19, 11.23 Harrison, In the Will of (1905) 11 ALR(CN) 25 …. 11.33 Harrison v Harrison [2011] VSC 459 …. 18.24 — v — [2013] VSCA 170 …. 18.24 — v Mills [1976] 1 NSWLR 42 …. 13.38 — v Petersen [2000] QSC 415 …. 23.4 — v Rowley (1798) 4 Ves 212; 31 ER 110 …. 10.17 Harrison (deceased), Re [1962] NZLR 6 …. 17.70, 17.71 Harrison (deceased), Re [2006] 1 All ER 858; [2005] EWHC 2957 …. 8.45 Harrowby v Snelson [1951] 1 All ER 140 …. 11.75 Hart v Van Son [2014] NSWSC 585 …. 18.19 Hart (deceased), Re [1963] NSWR 627 …. 11.74 Harter v Harter (1873) LR 3 P & D 11 …. 2.55, 2.59, 2.60, 15.2 Hartigan, Re Affairs of (SC(WA), Parker J, 9 December 1997, unreported) …. 7.34, 7.35 Hartigan v O’Shanassy (1872) 3 VR (E) 41 …. 12.54 Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 …. 13.38 Hart-Roach v Public Trustee (SC(WA), Murray J, 11 February 1998, unreported) …. 11.71 Harvey, Re [1950] 1 All ER 491 …. 2.80 Harvey (deceased), Re [1962] NZLR 524 …. 9.4 Harvey’s Estate, Re [1893] 1 Ch 567 …. 7.21 Harwood v Baker (1840) 3 Moo PC 282; 13 ER 117 …. 2.8 Haskakis v Hatzopoulos [2015] NSWSC 1408 …. 19.20 Hassan (deceased), Re Estate of (2008) 100 SASR 464; [2008] SASC 14 …. 2.24, 2.25 Hassell v Perpetual Trustees and Agency Co (WA) Ltd (1952) 86 CLR 513 …. 14.42 Hastilow v Stobie (1865) LR 1 P & D 64 …. 2.27 Hastings, In the Goods of (1877) 4 PD 73 …. 10.25 Hastings, Re (1878) 4 PD 73 …. 11.46 — v Hastings [2008] NSWSC 1310 …. 19.14, 19.24 — v — [2010] NSWCA 197 …. 18.26, 19.24, 19.27 Hathornthwaite v Russel (1740) 2 Atk 126; 26 ER 480 …. 10.70

Hatsatouris v Hatsatouris [2001] NSWCA 408 …. 4.35, 4.49 Hatte, Re [1943] St R Qd 1 …. 18.29 Hausfeld v Hausfeld (2012) 9 ASTLR 535; [2012] NSWSC 989 …. 3.20 Hawes v Burgess [2013] WTLR 453; [2013] EWCA Civ 74 …. 2.10, 2.13, 2.14, 2.28 Hawke v Public Trustee [1957] NZLR 152 …. 17.13 Hawke (deceased), In the Estate of (1973) 6 SASR 278 …. 11.17, 11.18 Hawkins, Re (1880) 13 Ch D 470 …. 7.44 Hawkins v Barkley-Brown [2010] NSWSC 48 …. 13.51, 13.52, 13.71, 13.72 — v — (No 2) [2010] NSWSC 395 …. 14.24 — v Blewitt (1798) 2 Esp 662; 170 ER 489 …. 1.23 — v Clayton (1988) 164 CLR 539 …. 24.26 — v Perpetual Trustee Co (Ltd) (1960) 103 CLR 135 …. 6.2, 6.3 — v Prestage (1989) 1 WAR 37 …. 18.26 Hawksley’s Settlement, Re [1934] Ch 384 …. 8.2, 11.35 Hayden v Simeti (HC(NZ), Fisher J, 14 May 1993, unreported) …. 2.42 Hayes v Marquis [2008] NSWCA 10 …. 16.20 Hayes’ Will Trusts, Re [1971] 2 All ER 341 …. 10.44, 12.1 Haynes v Mico (1781) 1 Bro CC 129; 28 ER 1031 …. 7.76 Hayward, Re [1934] SASR 364 …. 14.42 Headington v Holloway (1830) 3 Hag Ecc 280; 162 ER 1158 …. 23.15 Healey v Brown [2002] WTLR 849; [2002] EWHC 1405 …. 1.49 Hearle v Greenbank (1749) 3 Atk 695; 26 ER 1200 …. 14.37 — v Hicks (1832) 1 Cl & F 20; 6 ER 823 …. 5.6, 5.7 Heath, In the Goods of [1892] P 253 …. 6.7 Heath’s Will Trusts, Re [1949] Ch 170 …. 6.3 Heathcote, In the Estate of [1913] P 42 …. 10.67, 10.86 Heberley (deceased), Re [1971] NZLR 325 …. 10.44 Hecht v Superior Court of Los Angeles County (Kane) (1993) 20 Cal Rep 2d 275 …. P.8 Hedges v Hedges (1708) Prec Ch 269; 24 ER 130 …. 1.15 Heerman, In the Estate of [1910] P 357 …. 10.26 Hele v Lord Bexley (1852) 15 Beav 340; 51 ER 569 …. 11.55 Helton v Allen (1940) 63 CLR 691 …. 7.50 Hemburrow (deceased), Re [1969] VR 764 …. 2.60 Hemming (deceased), Re [2009] Ch 313; [2008] EWHC 273 …. 10.43

Henderson, Re [1996] 1 Qd R 249 …. 11.23 Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477 …. 11.49, 11.50, 11.51 — v Wilcox [2016] WTLR 475; [2015] EWHC 3469 …. 7.51 Henderson’s Trusts, Re [1969] 3 All ER 769 …. 8.3 Hendry v Perpetual Executors & Trustees Association of Australia Ltd (1961) 106 CLR 256 …. 8.39 Hennekam (deceased), Re Estate of (2009) 104 SASR 289; [2009] SASC 188 …. 2.74 Henry v Hancock [2016] NSWSC 71 …. 17.32 Hensloe’s Case (1599) 9 Coke 36; 77 ER 784 …. 10.65 Herbert Brothers (deceased), Re (1990) 101 FLR 279 …. 23.13 Hernando, Re (1884) 27 Ch D 284 …. 22.14 Herszlikowicz v Czarny [2005] VSC 354 …. 18.27, 19.25, 20.22 Hertzberg v Hertzberg [2003] NSWCA 311 …. 18.11 Heuston v Barber (1990) 19 NSWLR 354 …. 22.35 Hewitt v Gardner (2009) 3 ASTLR 407; [2009] NSWSC 705 …. 11.54, 11.55 Hewson v Shelley [1914] 2 Ch 13 …. 11.79, 11.110 Heys (deceased), In the Estate of [1914] P 192 …. 1.43, 1.52, 11.35 Hibberson v George (1989) 12 Fam LR 725 …. 9.84 Hibbert v Hibbert (1873) LR 15 Eq 372 …. 8.50 Hickling v Fair [1899] AC 15 …. 8.64, 9.5 Hickman v Peacey [1945] AC 304 …. 11.86, 11.87 Hiddingh (Heirs) v De Villiers Denyssen (1887) 12 App Cas 624 …. 14.27 Higgins v Dawson [1902] AC 1 …. 8.40 — v Higgins [2005] 2 Qd R 502; [2005] QSC 110 …. 15.15, 17.20, 17.21, 18.31, 18.35 Hill, In the Will of [1930] QWN 42 …. 5.3 Hill, Re (SC(Qld), Carter J, 17 June 1988, unreported) …. 12.51 Hill v Crook (1873) LR 6 HL 265 …. 8.52 — v Curtis (1865) LR 1 Eq 90 …. 12.26 — v Fellowes (a firm) (2011) 118 BMLR 122; [2011] EWHC 61 …. 24.5 — v Hill [2001] VSC 83 …. 3.2 — v — [2001] VSC 135 …. 23.20, 23.21 — v — (2013) 11 ASTLR 121; [2013] NSWSC 524 …. 7.69 — v Roberts (SC(Vic), Ashley J, 27 October 1995, unreported) …. 12.2, 12.30,

12.31 — v Van Erp (1997) 188 CLR 159 …. 24.28, 24.29, 24.30, 24.31, 24.33, 24.34, 24.38, 24.42 — v Walker (1858) 4 K & J 166; 70 ER 69 …. 12.17 Hilliard v Fulford (1876) 4 Ch D 389 …. 14.43 Hillman v Box (2010) 5 ACTLR 122; [2010] ACTSC 153 …. 17.48, 17.49, 20.11 — v — (No 4) [2014] ACTSC 107 …. 18.18 Hills, Re Estate of (2009) 263 LSJS 458; [2009] SASC 176 …. 11.8, 11.9 Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159 …. 17.22, 17.28, 17.37, 17.38, 19.41, 19.42 — v Mills (1691) 1 Salk 36; 91 ER 37 …. 10.70 Hilton, Re [1997] 2 NZLR 734 …. 16.12, 18.17 Hilton v Sutton Steam Laundry [1946] KB 65 …. 11.78 Hindmarch, In the Goods of (1866) 1 LR P & D 307 …. 5.44 Hinds v Collins [2006] 1 Qd R 514; [2005] QSC 362 …. 2.28 Hine, In the Estate of (1878) 4 VLR (IP & M) 64 …. 13.54 Hines, Re Estate of [1999] WASC 111 …. 4.35 Hinsch, In the Will of (1896) 17 LR (NSW) B&P 21 …. 13.6, 13.15, 13.16 Hiralal v Hiralal (2013) 10 ASTLR 300; [2013] NSWSC 984 …. 10.15 Hird and Hickey’s Contract, Re [1919] VLR 717 …. 10.45, 10.49 Hitchcock v Pratt (2010) 79 NSWLR 687; [2010] NSWSC 1508 …. 20.62, 22.36, 22.37 Hoadley v Hoadley (SC(NSW), Young J, 17 February 1987, unreported) …. 18.1, 19.25, 20.25 Hoare v Johnson (1998) 8 Tas R 74 …. 11.56 Hoarey, Re [1906] VLR 437 …. 10.24 Hobbes v NSW Trustee & Guardian [2014] NSWSC 570 …. 1.19, 1.25, 1.27 Hodge, Re [1940] Ch 260 …. 7.43 Hodge v Clare (1691) 4 Mod Rep 14; 87 ER 235 …. 10.12 — v De Pasquale [2014] VSC 413 …. 13.29, 13.30 Hodges (deceased), Re Estate of (1988) 14 NSWLR 698 …. 2.11, 2.17 Hodgkinson, In the Goods of [1893] P 339 …. 6.13 Hodgson, Re [1936] Ch 203 …. 8.10, 8.12 Hodgson v Jex (1876) 2 Ch D 122 …. 8.30 Hodson v Barnes (1926) 43 TLR 71 …. 4.5

Hoffman (deceased), Re Estate of [2016] SASC 110 …. 11.17 Hoffmann v Norris (1805) 2 Phill Ecc 230n; 161 ER 1129n …. 11.30 — v Waters (2007) 98 SASR 500; [2007] SASC 273 …. 3.3, 3.9, 3.13, 3.20, 23.21 Hogarth v Johnson [1987] 2 Qd R 383 …. 11.26 Hogg v Cook (1863) 32 Beav 641; 55 ER 252 …. 8.50 Holder v Holder [1968] Ch 353 …. 10.17, 12.22, 12.56 Holdway v Arcuri Lawyers [2009] 2 Qd R 18; [2008] QCA 218 …. 10.50 Hollings, In the Will of (1878) 4 VLR (IPM) 46 …. 10.8 Holloway v Public Trustee [1959] SR (NSW) 308 …. 11.75 Holman v McClelland [2003] QCA 509 …. 17.24 — v — [2003] QSC 110 …. 17.24 Holmes, In the Will of (1889) 15 VLR 734 …. 13.70 Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113 …. 15.12 — v Webb (CA(Qld), Fitzgerald P, Davies JA and Demack J, 18 August 1992, unreported) …. 20.9 Holtham v Arnold (1986) 2 BMLR 123 …. 12.6 Hons v Hons (2010) 3 ASTLR 278; [2010] NSWSC 247 …. 12.35 Honywood, In the Goods of (1871) LR 2 P & D 251 …. 11.17 Hoobin v Hoobin [2004] NSWSC 705 …. 5.30 Hoobin (deceased), Re; Perpetual Executors and Trustees Association of Australia Ltd v Hoobin [1957] VR 341 …. 13.31 Hope v Tasmanian Perpetual Trustees Ltd [2006] TASSC 13 …. 17.66 Hopwood v Cuthbertson (2001) 10 Tas R 186; [2001] TASSC 64 …. 8.11, 8.24 Horan v James [1982] 2 NSWLR 376 …. 2.78, 2.80, 2.81 Hore v Perpetual Trustee Co Ltd (SC(NSW), Windeyer J, 8 June 1995, unreported) …. 20.32, 20.33 Horgan (deceased), Re [1971] P 50 …. 11.40 Horlock, Re [1895] 1 Ch 516 …. 7.73, 7.76 Horne, In the Estate of (1920) 20 SR (NSW) 531 …. 6.16, 6.19 Horne, Re [1905] 1 Ch 76 …. 14.44 Horner (deceased), Re [1965] VR 177 …. 2.21 Hornsby v Hornsby (No 2) [2014] WASC 434 …. 1.2, 2.23, 10.9 Horrocks (deceased), Re [1939] P 198 …. 2.59, 2.61

Horrocks (deceased), Re [1944] NZLR 314 …. 7.80, 7.81, 7.82, 7.88 Horsford, In the Goods of (1874) LR 3 P & D 211 …. 5.48, 5.50 Horsley v Dunlop (1894) 5 QLJ 85 …. 23.5 Hosken v Danahar [1911] VLR 214 …. 10.44 Houghton, Re [1904] 1 Ch 622 …. 11.90, 13.29, 13.31 Houghton, Re [1915] 2 Ch 173 …. 7.49, 7.64 Houlgrave (deceased), Re (1979) 23 SASR 107 …. 8.24 House v R (1936) 55 CLR 499 …. 20.54, 20.56 Houston v Burns [1918] AC 337 …. 2.78, 8.21 Hovey v Blakeman (1799) 4 Ves 596; 31 ER 306 …. 12.53 How v How [2015] TASSC 4 …. 15.15 Howard, Estate of (1996) 39 NSWLR 409 …. 11.7, 11.8, 11.9 Howard (deceased), Re [1944] P 39 …. 5.6 Howarth v Reed (SC(NSW), Powell J, 15 April 1991, unreported) …. 20.21 Howe v Fischer (2014) 12 ASTLR 66; [2014] NSWCA 286 …. 24.33 Howell v Hyde (2003) 47 ACSR 230; [2003] NSWSC 732 …. 4.70, 4.72 — v Marsh (1906) 23 WN (NSW) 17 …. 23.12 Howland v Ellis [2001] NSWCA 456 …. 9.84 Howling v Kristofferson (SC(NSW), Cohen J, 14 October 1992, unreported) …. 10.15, 10.17, 12.25 Howroyd v Howroyd (2011) 9 ASTLR 231; [2011] TASSC 73 …. 2.5, 2.30 Hoxha v Hoxha (SC(Vic), Jenkinson J, 22 May 1975, unreported) …. 11.104 Hudson v Gray (1927) 39 CLR 473 …. 1.42 — v Hudson (1735) Cas t Talbot 127; 25 ER 700 …. 10.82 — v — (1737) 1 Atk 460; 26 ER 292 …. 11.78 — v Parker (1844) 1 Rob 14; 163 ER 948 …. 4.13 Hudson (deceased), Re Estate of [2002] WASC 146 …. 5.20 Hughes, Re [1921] 2 Ch 208 …. 2.80 Hughes v Estate of Weedon (SC(NSW), Hodgson J, 16 December 1994, unreported) …. 13.61 — v Gardiner [2016] VSC 541 …. 11.102 — v Hughes (CA(NSW), Hope, Samuels and Meagher JJA, 6 June 1989, unreported) …. 18.34 — v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 …. 15.14, 15.19, 17.65, 17.81, 18.1, 18.23, 18.24, 18.25, 18.26, 18.29, 18.32, 19.10, 19.33, 19.37, 19.38

Hughes Estate v Hughes (2007) 78 Alta LR (4th) 203; [2007] ABCA 277 …. 11.53 Hugo, In the Goods of (1877) LR 2 PD 73 …. 2.24 Huish, Re (1889) 43 Ch D 260 …. 7.77 Hunt, In the Goods of (1875) LR 3 P & D 250 …. 2.72 Hunt, In the Goods of [1896] P 288 …. 10.7 Hunter v Hunter [1930] 4 DLR 255 …. 12.5 — v — (1987) 8 NSWLR 573 …. 17.67, 18.26 — v — (SC(NSW), Needham J, 28 June 1989, unreported) …. 20.29 Hunter (deceased), Re [1940] GLR 100 …. 19.47 Hunter (deceased), Re; Hunter v Hunter [1932] NZLR 911 …. 10.24, 10.68, 11.39 Hurst v Beach (1820) 5 Madd 351; 56 ER 929 …. 7.74 Huxtable, Re [1902] 2 Ch 793 …. 4.78 Hyman v Permanent Trustee Co of New South Wales Ltd (1914) 14 SR (NSW) 348 …. 13.16 I Ibuna v Arroyo [2012] WTLR 827; [2012] EWHC 428 …. 12.5 Ilott v Genge (1844) 4 Moo PC 265; 13 ER 304 …. 4.12 — v Mitson [2011] WTLR 779; [2011] EWCA Civ 346 …. 18.26 Ingall v Moran [1944] 1 KB 160 …. 11.78, 11.79 Ingrey v King [2016] WTLR 131; [2015] EWHC 2137 …. 14.45 Inland Revenue Commissioners v Smith [1930] 1 KB 713 …. 10.49 — v Stype Investments (Jersey) Ltd [1982] Ch 456 …. 10.17 Inman, Re [1893] 3 Ch 518 …. 14.36 Innes, Re [1910] 1 Ch 188 …. 14.22 Innes-Irons v Forrest [2016] VSC 782 …. 18.23 Instone, Re Estate of (SC(NSW), Powell J, 23 August 1993, unreported) …. 13.71 IOOF Australia Trustees Ltd and the Trustee Act 1936 (1999) 205 LSJS 98; [1999] SASC 461 …. 13.37 Ioppolo and Hesford v Conti [2013] WASC 389 …. 1.11 Ireland v Grant [2014] NZHC 1523 …. 1.38 — v Retallack (2011) 6 ASTLR 585; [2011] NSWSC 846 …. 8.39 Irismay Holdings Pty Ltd, Re [1996] 1 Qd R 172 …. 13.30

Irvine, Estate of [2015] NSWSC 432 …. 4.38 Itter (deceased), In the Goods of [1950] P 130 …. 5.48 Iwasivka v State Trustees Ltd [2005] VSC 323 …. 16.49, 18.28, 18.52 Izon v Butler (1815) 2 Price 34; 146 ER 13 …. 14.20 Izydorski v Rimmer [2010] WASC 175 …. 17.24, 17.26, 17.36, 17.37, 17.38 J J (deceased), Re Estate of (1999) 204 LSJS 205; [1999] SASC 364 …. 11.60, 11.64 J D & K J Zohs Properties Pty Ltd v Ferme [2015] SASC 55 …. 12.45, 12.54, 14.24 J, LC, Re [2014] SASC 20 …. 3.24 J P (deceased), In the Will of (1922) 39 WN (NSW) 228 …. 11.17 Jabado v Da Prato [2016] WASC 98 …. 4.39 Jackson, In the Goods of (1902) 87 LT 747 …. 11.11 Jackson, Re [1933] Ch 237 …. 8.39, 8.43 Jackson, Re [1944] SASR 82 …. 13.30 Jackson v Newns [2011] VSC 32 …. 15.15, 17.64, 17.66, 18.52 — v Paulet (1851) 2 Rob Ecc 344; 163 ER 1340 …. 10.2 — v Riley (SC(NSW), Cohen J, 24 February 1989, unreported) …. 23.22 Jackson (deceased), Re [2016] 1 All ER 932; [2015] EWCA Civ 797 …. 17.71 Jacomb v Harwood (1751) 2 Ves 265; 28 ER 172 …. 11.90 Jacques v Seton (1960) 103 CLR 511 …. 8.57 Jageurs v Downing [2015] VSC 432 …. 4.34 James, Re [1935] 1 Ch 449 …. 14.21, 14.23 James v Burdekin (1990) 3 WAR 298 …. 4.52, 5.47 — v Day [2004] VSC 290 …. 18.47 James (deceased), In the Goods of (1888) 1 Sw & Tr 238; 164 ER 709 …. 5.49 James’ Will Trusts, Re [1962] Ch 226 …. 8.6 Jane, Re Will of [2011] NSWSC 624 …. 3.3, 3.5, 3.15, 3.17, 3.18, 3.20, 23.21 Jane, Re Will of (No 2) (2011) 8 ASTLR 423; [2011] NSWSC 883 …. 23.20 Jankowski v Pelek Estate (1996) 131 DLR (4th) 717 …. 4.75 Jans v Public Trustee [2002] NSWSC 628 …. 7.70 Jaworenko Estate, Re [2013] ABQB 517 …. 7.50 JC, Re [2012] WTLR 1211 …. 3.1 Jeans, Re (1895) 72 LT 835 …. 8.51, 8.52

Jeffery, Re [1951] SASR 237 …. 4.75 Jeffery v Guider [2010] NSWSC 705 …. 23.27 — v Irzykiewicz [2000] ACTSC 50 …. 11.80 — v Jeffery [2013] WTLR 1509; [2013] EWHC 1942 …. 2.3, 2.39 Jelly v Illife [1981] Fam 128 …. 16.53 Jenkins v Gaisford (1863) 3 Sw & Tr 93; 164 ER 1208 …. 4.6 — v Jenkins [1928] 2 KB 501 …. 14.19, 14.21 — v Jones (1866) LR 2 Eq 323 …. 7.34, 7.35, 7.36 Jenner (deceased), Re [1960] Qd R 349 …. 17.11 Jennery (deceased), Re [1967] 1 Ch 280 …. 20.11 Jennings (deceased), Re [1994] Ch 286 …. 15.22, 18.23 Jensen, Re [1992] 2 NZLR 506 …. 2.55 Jensen, Re [1998] 2 Qd R 374 …. 10.68 Jensen (deceased), Re Estate of [2011] SASC 243 …. 13.36 Jervis v Wolferstan (1874) LR 18 Eq 18 …. 1.34, 14.45 Jessop v Jessop [1992] 1 FCR 253 …. 20.72 Job v Job (1877) 6 Ch D 562 …. 11.83 Jodrell, Re (1889) 44 Ch D 590 …. 8.9 John, Re [2000] 2 Qd R 322; [1999] QCA 444 …. 16.39 John v John [2010] NSWSC 937 …. 17.24, 17.29, 17.39, 20.71, 20.77 Johnson, Re [1924] SASR 31 …. 13.57 Johnson, Re [1931] VLR 60 …. 11.44 Johnson v Buttress (1936) 56 CLR 113 …. 24.21 — v Newton (1853) 11 Hare 160; 68 ER 1230 …. 12.1, 12.25, 14.27 — v Trotter (2006) 12 BPR 23,339; [2006] NSWSC 67 …. 10.44, 11.90, 12.22, 12.23 Johnson (deceased), Re Estate of (2014) 11 ASTLR 562; [2014] NSWSC 512 …. 2.74 Johnson (deceased), Re Estate of (2015) 122 SASR 190; [2015] SASC 51 …. 11.4 Johnston, Re [1985] 1 Qd R 516 …. 4.32 Johnston, Re Estate of (2010) 3 ASTLR 599; [2010] NSWSC 382 …. 4.44 Johnston (deceased), In the Will of [1912] VLR 55 …. 5.8 Johnston v Maclarn [2002] NSWSC 97 …. 7.23, 7.35 — v O’Neill (1879) 3 LR (Ir) 476 …. 14.36 — v Public Trustee (1929) 24 Tas LR 71 …. 23.5, 23.7, 23.19

— v Todd (1845) 8 Beav 489; 50 ER 192 …. 23.39 Johnstone v Haviland [1896] AC 95 …. 7.72 Jolley (deceased), Re [1964] P 262 …. 11.30, 11.33 Jolley (deceased), Re (1984) 36 SASR 204 …. 7.60 Jolliffe v Fera [1973] 2 NSWLR 702 …. 10.82 Jones, Re [1942] Ch 328 …. 4.66 Jones, Re [1945] Ch 105 …. 2.80 Jones, Re [1978] VR 272 …. 20.8 Jones, Re [2016] WTLR 661; [2014] EWCOP 59 …. 3.7 Jones v Basset (1701) Prec Ch 174; 24 ER 85 …. 11.44 Jones v Dodd (1999) 73 SASR 328; [1999] SASC 125 …. 12.7, 12.9, 12.10 — v Estate of Farley (SC(NSW), Santow J, 10 October 1997, unreported) …. 12.30, 13.63, 13.64 — v Jones [2012] QSC 342 …. 23.3, 23.29 — v Midland Bank Trust Co Ltd [1998] 1 FLR 264 …. 7.59 — v Public Trustee [2010] NSWSC 350 …. 19.38, 19.40 — v Public Trustee (Qld) (2004) 209 ALR 106; [2004] QCA 269 …. 9.76 — v Westcomb (1711) Prec Ch 316; 24 ER 149 …. 7.60, 7.61 Jones (deceased), In the Estate of (1979) 21 SASR 46 …. 6.17, 6.19 Jones (deceased), In the Goods of (1861) 2 Sw & Tr 155; 164 ER 952 …. 10.9 Jones (deceased), Re [1976] Ch 200 …. 5.19 Jones (deceased), Re [1981] Fam 7 …. 4.27 Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178 …. 15.23 Jordan, In the Goods of (1868) LR 1 P & D 555 …. 1.5 Josifovski v Velevski [2013] NSWSC 1103 …. 7.67 Joyce v Cam (2004) 12 BPR 22,231; [2004] NSWSC 621 …. 14.4 Julius, In the Estate of (1909) 26 WN (NSW) 98 …. 11.48 Jurd v Public Trustee [2001] NSWSC 632 …. 16.20 Just, Re [1938] St R Qd 93 …. 20.57 Just (deceased), In the Estate of (No 2) (1974) 7 SASR 515 …. 10.46, 10.47 Juul v Northey [2010] NSWCA 211 …. 12.1 Jvancich v Kennedy (No 2) [2004] NSWCA 397 …. 23.30, 23.37 JW v Siganto [2015] QSC 300 …. 3.18 K K, Application for a Declaration of Paternity by (2002) 12 NTLR 155; [2002]

NTSC 63 …. 14.51, 14.54 K, Re Estate of the Late (1996) 5 Tas R 365 …. 8.55, 8.56 K (deceased), Re [1985] Ch 85; [1986] Ch 180 …. 7.51, 7.67, 7.70 K, JL, Re [2016] SASC 53 …. 3.4, 3.9, 3.13 Kaeding, Re [1929] SASR 475 …. 1.24 Kalaf v Grimanes [2013] WASC 327 …. 2.3 Kalidis, Re Estate of [2012] NSWSC 1485 …. 17.57 Kalmar v Kalmar [2006] NSWSC 437 …. 17.22, 17.35, 18.16 Kane v Radley-Kane [1999] Ch 274 …. 12.22, 13.21 Kantor v Vosahlo [2004] VSCA 235 …. 2.13, 2.17 Karsten, Re [1950] NZLR 1022 …. 4.62 Karsten (deceased), Re [1953] NZLR 456 …. 4.75, 4.78 Kastrounis v Foundouradakis [2012] NSWSC 264 …. 20.60, 20.66, 20.71 Katundi v Hay [1940] St R Qd 39 …. 13.31 Kaupthing Singer and Friedlander Ltd (No 2), Re [2012] 1 AC 804; [2011] UKSC 48 …. 14.25 Kavalee v Burbidge (1998) 43 NSWLR 422 …. 20.60, 20.61, 20.62 Kavanagh (deceased), In the Estate of (1977) 16 SASR 342 …. 11.35 Kay, Re [1897] 2 Ch 518 …. 12.58 Kay v Archbold [2008] NSWSC 254 …. 15.12 Keane, Re [2012] 1 Qd R 319; [2011] QSC 49 …. 3.16 Keane (deceased), Re [1909] VLR 231 …. 23.16 Keating, Re [2015] VSC 371 …. 14.61 Kedzier v Postle [2002] NSWSC 875 …. 4.44 Keegan, Ex parte (1907) 7 SR (NSW) 565 …. 11.11 Keelan v Peach [2003] 1 NZLR 589; [2002] NZCA 296 …. 15.7, 15.9, 16.1 Keen, Re [1937] Ch 236 …. 4.75, 4.78 Keenan, In the Estate of (1899) 20 LR (NSW) (B & P) 10 …. 14.27 Keep v Bourke [2012] NSWCA 64 …. 19.16 Kehr, Re [1952] 1 Ch 26 …. 10.78 Keid, Re [1980] Qd R 610 …. 7.60 Keitley, Re [1992] 1 VR 583 …. 7.52, 7.54 Kell v Jones [2013] WTLR 507 …. 2.64 Kelly, Re [1929] SASR 262 …. 2.50 Kelly v Charmer (1856) 23 Beav 195; 53 ER 76 …. 4.5 — v Toohey (1900) 21 LR (NSW) Eq 33 …. 21.26

Kelly (deceased), In the Estate of (1983) 32 SASR 413 …. 4.49 Kelsall, Re [2016] VSC 724 …. 2.5 Kelso, Application by, Re [2010] NSWSC 357 …. 3.2, 3.3 Kemnal and Still’s Contract, Re [1923] 1 Ch 293 …. 13.7 Kemp v Burn (1863) 4 Giff 348; 66 ER 740 …. 12.30 — v Commissioners of Inland Revenue [1905] 1 KB 581 …. 10.47 — v Public Curator of Queensland [1969] Qd R 145 …. 7.48, 7.66 Kemperle v Public Trustee (SC(NSW), Powell J, 20 November 1985, unreported) …. 7.49, 7.53 Kempster, Re [1906] 1 Ch 446 …. 14.18 Kennedy, Re [1920] VLR 513 …. 23.29 Kennedy v Griffiths (2011) 5 ASTLR 345; [2011] QSC 369 …. 1.43 Kennell v Abbott (1799) 4 Ves 802; 31 ER 416 …. 2.49 Kenny v Wilson (1911) 11 SR (NSW) 460 …. 23.13 Kenzler, Ex parte [1983] 2 Qd R 281 …. 10.47 Keong v Keong [1973] Qd R 516 …. 5.28 Kerr v Badran [2004] NSWSC 735 …. 2.7 — v Kerr (No 2) [2016] SASC 24 …. 23.9 — v Mills (1888) 5 WN (NSW) 33 …. 10.17 Kerrigan, In the Will of (1935) 35 SR (NSW) 242 …. 13.47, 13.68 Kerrigan, Re [1916] VLR 516 …. 13.6, 13.11 Key v Key (1853) 4 De GM & G 73; 43 ER 435 …. 8.16 Key (deceased), Re [2010] 1 WLR 2020; [2010] EWHC 408 …. 2.15, 24.6 Keys (deceased), In the Will and Estate of [1909] VLR 325 …. 10.73, 10.84 Khan, Re [1947] QWN 26 …. 10.3 Khan’s Settlement Trusts, Re [1966] Ch 567 …. 22.28 Khoury v Public Trustee [2010] NSWSC 475 …. 16.36, 17.29, 18.32, 18.33, 20.27 Kicks v Leigh [2014] EWHC 3926 …. 2.5 Kiddle, Re (1905) 92 LT 724 …. 8.9 Kidney v Coussmaker (1806) 12 Ves 136; 33 ER 53 …. 7.90 Kilby, Re [2016] NSWSC 1433 …. 10.84, 11.43 Kimberley v Butcher [2001] WASC 118 …. 23.29, 23.32 King v Berndt (1902) 27 VLR 519 …. 13.11 — v Condon [2009] 2 Qd R 143; [2009] QSC 67 …. 17.13, 17.14, 17.15, 17.81 — v Dubrey [2016] Ch 221; [2015] EWCA Civ 581 …. 1.15, 1.17, 1.19, 1.21,

1.23, 1.28 — v Hebbard (1992) 3 Tas R 241 …. 11.26 — v Hudson [2009] NSWSC 1013 …. 2.5 — v Perpetual Trustee Company (Ltd) (1955) 94 CLR 70 …. 8.5, 8.39 — v White [1992] 2 VR 417 …. 18.3, 18.12, 19.48 King (deceased), Re [1953] VLR 648 …. 7.21 King’s Proctor v Daines (1830) 3 Hagg Ecc 218; 162 ER 1136 …. 1.3, 2.21 Kingsbury v Walter [1901] AC 187 …. 8.61 Kipping v Ash (1845) 1 Rob Ecc 270; 163 ER 1035 …. 11.26 Kirk v Kirk [2014] SKQB 319 …. 2.25 Kirkman v Booth (1848) 11 Beav 273; 50 ER 821 …. 13.22 Kirkpatrick v Bedford (1878) 4 App Cas 96 …. 7.78 — v Kavulak [2005] QSC 282 …. 13.49 Kirs (deceased), In the Estate of (1990) 55 SASR 61 …. 5.46, 5.47, 5.48, 11.30 Kitcat v King [1930] P 266 …. 4.56, 5.3 Kitson v Franks [2001] WASCA 134 …. 18.40 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 …. 18.26, 18.34, 19.20 Kleinsang (deceased), Re (1928) 28 SR (NSW) 455 …. 4.5 Klement v Randles [2009] VSC 320 …. 11.98, 11.104 — v — [2010] VSCA 160 …. 11.98, 11.104 Klemke v Lustig [2010] VSC 502 …. 17.66, 19.7 Kloebe, Re (1885) 28 Ch D 157 …. 22.11 Knapman, Re (1881) 18 Ch D 300 …. 14.26 Knibbs, In the Estate of [1962] 2 All ER 829 …. 2.22, 4.28, 4.29 Knott Estate, Re (1959) 27 WWR 688 …. 2.72 Knowles’ Will Trusts, Re [1948] 1 All ER 866 …. 12.22 Knox v Till [1999] 2 NZLR 753 …. 24.37 Koerstz v Norman [2008] NSWSC 133 …. 11.23 Kolecki (deceased), Re Estate of [2011] SASC 158 …. 11.21 Konui v Tasi [2015] QSC 74 …. 4.34, 13.67 Koorneef v Lewkowicz [2001] ACTSC 81 …. 23.29 Korvine’s Trust, Re [1921] 1 Ch 343 …. 14.5 Kossert v Ruggi (No 3) [2012] WASC 454 …. 23.36 Kostic v Chaplin [2008] WTLR 655; [2007] EWHC 2909 …. 23.5, 23.6 Kotke v Saffarini [2005] 1 FCR 642; [2005] EWCA Civ 221 …. 16.21 Koutsouliotas (deceased), Re Estate of [2011] SASC 196 …. 11.21

Kouvakas, Re Estate [2014] NSWSC 786 …. 11.4, 11.24, 11.29, 11.30, 11.31, 11.32 Kowalski v Kowalski [2012] QCA 234 …. 18.10 — v Public Trustee (2011) 9 ASTLR 474; [2011] QSC 323 …. 18.3 Krause v Sinclair [1983] 1 VR 73 …. 23.26 Krawzcuk, In the Matter of (deceased) (SC(Vic), Ashley J, 11 December 1997, unreported) …. 11.22 Krinas, Re [2016] SASC 9 …. 3.2 Krol v Australian Executor Trustees Ltd [2010] SASC 302 …. 17.16, 17.17 Kruize v Cheung [2008] QSC 156 …. 8.13 Kwok v Ng [2011] SASC 230 …. 11.31 Kyd, Re [1992] SLT 1141 …. 7.59 L Lacey v Public Trustee [2010] NTSC 1 …. 23.29 Lack, Re [1983] 2 Qd R 613 …. 13.43, 13.67 Lacon, Re [1891] 2 Ch 482 …. 7.84 Ladd, Re [1932] 2 Ch 219 …. 7.15 Lady Naas v Westminster Bank Ltd [1940] AC 366 …. 7.43 Lago, Re [1984] VR 705 …. 20.8 Laing v Laing [2014] QSC 194 …. 12.8 Laird v Laird (1903) 5 GLR 466 …. 17.62 Lake v Quinton [1973] 1 NSWLR 111 …. 7.81, 7.84, 7.85, 7.86, 7.87 Lambe, In the Will of [1972] 2 NSWLR 273 …. 22.15 Lambert v Waters [1954] QSR 212 …. 7.72, 7.74, 7.75, 7.77 Land Credit Co of Ireland, Re (1872) 21 WR 135 …. 14.57 Landers v Landers (1914) 19 CLR 222 …. 2.14, 2.20 Lanfear (deceased), In the Will of (1940) 57 WN (NSW) 181 …. 12.13, 17.45, 17.46 Langford, In the Goods of (1867) LR 1 P & D 458 …. 10.5 Langford v Cleary (No 2) (1998) 8 Tas R 52 …. 18.23, 18.25, 19.38 — v Gascoyne (1805) 11 Ves 333; 32 ER 1116 …. 12.53 Langlands, Re (1901) 21 NZLR 100 …. 13.57 Langley v Langley [1974] 1 NSWLR 46 …. 17.3 Langston v Langston (1834) 2 Cl & F 194; 6 ER 1128 …. 8.25 Langston (deceased), In the Estate of [1953] P 100 …. 5.26

Langton (deceased), In the Estate of [1962] P 163 …. 11.32 Large v Higham (No 2) [2010] NSWSC 560 …. 23.19 — v Higham (No 3) [2010] NSWSC 681 …. 20.16 Larke v Negus [2000] WTLR 1033 …. 12.14 Larnach v Alleyne (1862) 1 W & W (E) 342 …. 12.54 Lashko v Lashko [2011] WASC 214 …. 11.9 Lassence v Tierney (1849) 1 Mac & G 551; 41 ER 1379 …. 8.35 Last (deceased), In the Estate of [1958] P 137 …. 8.2, 8.24 Lathwell v Lathwell [2008] WASCA 256 …. 19.16, 19.38, 20.57, 23.42 Lauer (deceased), Re [1984] VR 180 …. 17.32, 17.37 Lawes v Bennett (1785) 1 Cox Eq Cas 167; 29 ER 1111 …. 7.33 Lawler v Herd [2010] QSC 281 …. 2.65 Lawless v Donaldson [2012] NSWSC 570 …. 11.96, 11.105 Lawrence v Public Trustee [2001] NSWSC 375 …. 16.23, 16.36 Lawrence (deceased), Re [1982] VR 826 …. 10.65 Laybutt v Amoco (Australia) Pty Ltd (1974) 132 CLR 57 …. 11.79 Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 …. 5.28, 5.29, 5.30, 8.58 Lazenby v McDermott [2000] TASSC 121 …. 17.24, 17.32, 20.8 Le Bon v Lili [2013] VSC 431 …. 2.20 Leach, Re [1948] Ch 232 …. 7.16 Leach (deceased), Re [1985] 2 All ER 754 …. 9.24 Leach (deceased), Re [1986] Ch 226 …. 18.47 Leahey v Trescowthick [1999] VSC 409 …. 18.43 Leaney, Estate of [2014] NSWSC 1562 …. 4.37 Learoyd v Whiteley (1887) 12 App Cas 727 …. 12.28 Leber (deceased), Re [2014] SASC 47 …. 4.40, 5.6 Ledger, Re [1983] 1 Qd R 176 …. 8.12 Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532 …. 4.75, 4.76, 4.78 Lee, Re [1918] 2 Ch 320 …. 1.25 Lee v Hearn (2002) 7 VR 595; [2002] VSC 208 …. 19.5 — v — (2005) 11 VR 270; [2005] VSCA 127 …. 17.77, 19.5 — v Munro (1928) 98 LJKB 49 …. 16.23, 16.40 Lee (deceased), Re Estate of [2012] SASC 139 …. 14.29 Leeburn v Derndorfer (2004) 14 VR 100; [2004] VSC 172 …. 12.5, 12.6, 12.7

Leek v Friedman (SC(NSW), McLelland J, 16 October 1992, unreported) …. 19.16 Legal Profession Complaints Committee v Wells [2014] WASAT 112 …. 24.7 Legal Profession Conduct Commissioner v Brook [2015] SASCFC 128 …. 24.5 Legal Services Board v Delahunty [2011] VSC 453 …. 13.48 Legal Services Commissioner v Barlow [2014] VCAT 973 …. 24.19 — v Comino [2011] QCAT 387 …. 24.7 — v de Brenni [2011] QCAT 340 …. 24.7 — v Ford [2008] LPT 12 …. 24.7 — v Maguire [2014] VCAT 974 …. 24.19 Legal Services Commissioner of New South Wales v Reymond [2014] NSWCATOD 14 …. 24.23 Legh (deceased), Re (1889) 15 VLR 816 …. 10.24, 10.70, 11.38 Leguia, In the Estate of [1934] P 80 …. 10.69 Lehman Bros International (Europe) (in administration) (No 4), Re [2015] Ch 1; [2014] EWHC 704 …. 14.25 Leigh’s Will Trusts, Re [1970] Ch 277 …. 10.43 Leitch, Re [1997] 1 NZLR 38 …. 7.10 Lempens v Reid (2009) 2 ASTLR 373; [2009] SASC 179 …. 9.72 Lenaghan-Britton v Taylor (1998) 100 A Crim R 565 …. 7.70 Lentjes, Re [1990] 3 NZLR 193 …. 7.61 Leonard, Re [1985] 2 NZLR 88 …. 15.14 Leonard v Leonard [1902] P 243 …. 5.10 Lepard v Vernon (1813) 2 V & B 51; 35 ER 237 …. 11.91 Lepine, Re [1892] 1 Ch 210 …. 13.15, 13.16 Lerwill, Re [1955] NZLR 858 …. 20.9 Leslie v McDowell [2000] NSWSC 727 …. 4.50 Lesses (deceased), Re Estate of [2013] SASC 23 …. 2.28 Lett v Randall (1855) 3 Sm & G 83; 65 ER 572 …. 9.8 Leue v Reynolds (1986) 4 NSWLR 590 …. 17.11 Leung (deceased), In the Will of (SC(Vic), Beach J, 17 November 1994, unreported) …. 11.38 Levy (deceased), Re [1953] VLR 652 …. 11.33, 11.34 Levy (deceased), Re (No 2) [1957] VR 662 …. 11.4, 11.34 Lewal’s Settlement Trusts, Re [1918] 2 Ch 391 …. 22.29, 22.32

Lewis v Balshaw (1935) 54 CLR 188 …. 22.6 — v Cotton [2001] 2 NZLR 21; [2000] NZCA 399 …. 1.42 — v Lewis [2001] NSWSC 321 …. 17.24, 17.42, 20.78 — v Lohse [2003] QCA 199 …. 7.43 — v O’Loughlin (1971) 125 CLR 320 …. 9.4 — v Vincent [2008] 1 NZLR 121 …. 14.32, 14.38 Lewis (deceased), Re [1964] VR 537 …. 7.33 Lewis’ Will Trusts, Re [1937] Ch 118 …. 7.32 Lewis’s Will Trusts, Re [1984] 3 All ER 930 …. 8.27 Leyden v McVeigh [2009] VSC 164 …. 19.38 Lieberman v Morris (1944) 69 CLR 69 …. 19.40 Life Association of Scotland v Siddal (1861) 3 De GF & J 58; 45 ER 800 …. 12.56 Lightfoot v Maybery [1914] AC 782 …. 8.24, 9.4 Lillis v Lillis [2010] NSWSC 359 …. 23.30 Lim v Permanent Trustee Co Ltd (SC(NSW), McLelland J, 26 March 1981, unreported) …. 4.76 Lindop, Re [1942] Ch 377 …. 11.86 Lindrea (deceased) [1953] VLR 168 …. 5.17 Lindsay, Re Estate of [2004] NSWSC 575 …. 13.51, 13.73 Lindsay v McGrath [2016] 2 Qd R 160; [2015] QCA 206 …. 4.38, 4.41 Lippe v Henderwicke (1922) 31 CLR 148 …. 5.13, 23.8, 23.40, 23.41 Liprini v Liprini [2008] NSWSC 423 …. 20.11 Liptak v Commonwealth Bank of Australia [1999] ANZ Conv R 119 …. 2.40 Lister v Smith (1863) 3 Sw & Tr 282; 164 ER 1282 …. 2.21 Litchfield v Smith [2010] VSC 466 …. 15.22, 15.23, 17.78, 19.7 Little v Angus [1981] 1 NZLR 126 …. 17.81 Little (deceased), Re [1960] 1 All ER 387 …. 4.11 Littlejohn, In the Will and Codicil of (1952) 69 WN (NSW) 129 …. 6.15, 6.17 Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411 …. 10.43 Lloyd v Roberts (1858) 12 Moo PC 158; 14 ER 871 …. 11.19 Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189 …. 17.69, 17.76, 18.26, 20.26, 20.45 Lo Surdo v Public Trustee [2003] NSWSC 837 …. 16.4 Lock v Phillips [2014] WASC 92 …. 4.5

Lockrey v Ferris (2011) 8 ASTLR 529; [2011] NSWSC 179 …. 2.65 Lockwood, Re [1960] Tas SR 46 …. 18.49 Lodin v Lodin [2017] NSWSC 10 …. 18.17 Loftus, In the Goods of (1864) 3 Sw & Tr 307; 164 ER 1293 …. 10.58 Loftus (deceased), Re [2006] 4 All ER 1110; [2006] EWCA Civ 1124 …. 12.60 Lohse v Lewis [2004] 2 Qd R 648; [2004] QSC 36 …. 16.10, 16.40, 20.45 Long, Re [1951] NZLR 661 …. 14.51, 14.54, 14.61 Long v Comptroller of Stamps [1964] VR 796 …. 13.19 — v Long [2004] NSWSC 1002 …. 2.70, 2.75 Long and Feaver v Symes and Hannam (1832) 3 Hagg Ecc 771; 162 ER 1339 …. 10.17 Lord v Lord (1867) LR 2 Ch App 783 …. 14.32, 14.34 Lord Chesham, Re (1885) 31 Ch D 466 …. 7.89, 7.90 Lord Dacre’s Case (1535) …. 21.6 Lorillard, Re [1922] 2 Ch 638 …. 22.10, 22.11 Loveday, In the Goods of [1900] P 154 …. 10.24, 10.68, 11.95 Lovegrove (deceased), In the Goods of (1862) 2 Sw & Tr 453; 164 ER 1072 …. 1.52 Loveland, Re [1906] 1 Ch 542 …. 8.52 Lovett, Re (1876) 3 Ch D 198 …. 10.15, 12.16 Low v Guthrie [1909] AC 278 …. 2.48 — v Perpetual Trustees WA Ltd (1995) 14 WAR 35 …. 1.43, 1.46 Lowe v Lowe [2015] NSWSC 48 …. 8.30 Lowe (deceased), Re [1949] VLR 169 …. 4.28 Loweke, Re [1995] 1 Qd R 615 …. 8.2, 8.24 Lowthorpe-Lutwidge v Lowthorpe-Lutwidge [1935] P 151 …. 5.3 Loy (deceased), Re Estate of [2012] SASC 140 …. 14.29 Lubis v Walters (2009) 4 ASTLR 42; [2009] NTSC 23 …. 9.82, 11.95 Lubke v Claridge [2016] TASSC 44 …. 8.42, 8.44, 8.45, 11.40 Lucas (deceased), Re [1966] VR 267 …. 4.16 Lucas-Tooth, In the Will of (1932) 50 WN (NSW) 86 …. 12.35 Luciano v Rosenblum (1985) 2 NSWLR 65 …. 17.16, 18.2, 18.3, 18.4, 18.5, 18.7 Luck v Fogarty (SC(Tas), Zeeman J, 22 March 1996, unreported) …. 13.51 Luck (deceased), Re [1977] WAR 148 …. 5.4 Lucking’s Will Trusts, Re [1967] 3 All ER 726 …. 12.54

Ludwig v Public Trustee (2006) 68 NSWLR 69; [2006] NSWSC 890 …. 14.54 — v — [2008] NSWCA 115 …. 14.54 Lumb v McMillan [2007] NSWSC 386 …. 19.7 Lundy v Lundy (1895) 24 SCR 650 …. 7.49 Lungley (deceased), Re [1965] SASR 313 …. 22.22 Lutheran Church of Australia South Australia District Inc v Farmers, CoOperative Executors and Trustees Ltd (1970) 121 CLR 628 …. 2.79, 2.81, 8.7, 8.13 Luxton, Re Estate of (2006) 96 SASR 218; [2006] SASC 371 …. 7.54, 10.71 Lynch, Re [2016] VSC 758 …. 4.50 Lynch v Lynch (SC(NSW), Macready M, 24 August 1992, unreported) …. 18.17 — v Michael [1999] NSWSC 13 …. 2.52 Lynch (deceased), In the Estate of (1985) 39 SASR 131 …. 6.21 Lyndon, Will of [1960] VR 112 …. 10.60 Lyndon v Standbridge (1857) 2 H & N 45; 157 ER 19 …. 8.29 Lynneberg v Kildahl [1948] NZLR 207 …. 8.50 Lyttleton v Cross (1824) 3 B & C 317; 107 ER 751 …. 14.13 M M, Application of (2000) 50 NSWLR 401; [2000] NSWSC 1239 …. 3.24 Maas v O’Neill (2013) 11 ASTLR 525; [2013] WASC 379 …. 19.47 Macartney v Macartney [1908] VLR 649 …. 23.9 — v — [1909] VLR 183 …. 12.28, 13.71 MacBean v Trustees Executors and Agency Co Ltd [1916] VLR 425 …. 13.78 McBean (deceased), Re (1973) 7 SASR 579 …. 8.26 McBride v Hudson (1962) 107 CLR 604 …. 7.4, 7.6, 7.28, 8.67, 8.68 McCann v McCann (2013) 11 ASTLR 547; [2013] NSWSC 78 …. 4.45 — v Ward [2010] VSC 452 …. 17.29, 17.37, 17.39 — v — [2012] VSC 63 …. 18.48, 20.25 McCarthy v McCarthy [2009] NSWSC 774 …. 18.44 — v — [2010] NSWCA 103 …. 18.44, 20.55 — v Tye [2015] NSWSC 1947 …. 16.20, 16.21 McCaughey v Commissioner of Stamp Duties (1945) 46 SR (NSW) 192 …. 10.43, 10.45 McCauley v McCauley (1910) 10 CLR 434 …. 11.20, 11.22, 11.23

McClung, Re Will of [2006] VSC 209 …. 13.43, 24.18[2014] UKSC 2 McClymont v Hooper (1973) 128 CLR 147 …. 8.16 McConagle v Starkey [1997] 3 NZLR 635 …. 2.72 McConvill, Re [1950] VLR 63 …. P.11 McCorley v Pakleppa [2005] QSC 83 …. 2.64 McCormack (deceased), Re (1902) 2 SR (NSW) B & P 48 …. 10.23 McCormack (deceased), Re [1938] NZLR 777 …. 13.57 McCormick v Grogan (1869) LR 4 HL 82 …. 4.73 McCosker v McCosker (1957) 97 CLR 566 …. 17.67 McCreedy, Re [1938] St R Qd 293 …. 23.29 McCullough v Riffert (2010) 59 ETR (3d) 235 …. 24.33 McDermid Estate, Re [1995] 1 WWR 366 …. 2.74 MacDonald, Re [1955] NZLR 614 …. 11.23 McDonald, Re Estate of [2015] NSWSC 1610 …. 2.28, 2.34 McDonald v McDonald (1935) 35 SR (NSW) 173 …. 12.15 MacDonald v Public Trustee [2010] NSWSC 684 …. 12.3, 13.74 Macedonian Orthodox Community Church St Petka Inc, Re Application of (No 2) (2005) 63 NSWLR 441; [2005] NSWSC 558 …. 13.34 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 …. 13.36, 13.38 McEvoy v Public Trustee (1989) 16 NSWLR 92 …. 17.14, 17.15 MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318 …. 16.51, 17.70, 17.74, 17.75, 19.5, 18.37, 18.41, 18.43 McFadden v Public Trustee for Victoria [1981] 1 NSWLR 15 …. 1.12 McGeorge (deceased), Re [1963] Ch 544 …. 14.34 McGoun, Re [1910] VLR 153 …. 23.26 McGowan v Hamblett [2007] 1 NZLR 120 …. 22.21, 22.22 McGrath v Eves [2005] NSWSC 1006 …. 20.45 — v Troy [2010] NSWSC 1470 …. 12.18 MacGregor (deceased), In the Estate of (1975) 11 SASR 424 …. 7.12 McGuffie v Korczynski (2003) 228 LSJS 79; [2003] SASC 178 …. 16.43 McIlrath (deceased), Re [1959] VR 720 …. 8.14 McIndoe, Re (1908) 28 NZLR 104 …. 11.38 MacInnes, Re [1935] 1 DLR 401 …. 1.12

McIntyre, Re [1993] 2 Qd R 383 …. 20.57, 23.40, 23.41 Mack, In the Estate of (1956) 73 WN (NSW) 218 …. 13.15 Mack, In the Estate of [1962] NSWR 1029 …. 11.95 Mackay v Mackay (1901) 18 WN (NSW) 266 …. 11.9 McKay v McKay (2011) 4 ASTLR 429; [2011] QSC 230 …. 3.16 Mackenzie, In the Goods of [1950] QWN 29 …. 11.60 McKenzie v Baddeley (CA(NSW), 3 December 1991, unreported) …. 16.29 — v Lucas [2010] NSWSC 1083 …. 20.34 MacKenzie v MacKenzie (1998) 162 DLR (4th) 674 …. 24.6, 24.9 McKenzie v Topp [2004] VSC 90 …. 15.14, 17.78, 18.5, 18.8, 18.47, 19.14, 19.20, 20.44 McKeown v Byron (1903) 4 SR (NSW) 13 …. 7.89 McKerracher v McKerracher [2011] NSWSC 1288 …. 11.105 McKinnon v Voigt [1998] 3 VR 543 …. 2.29, 2.31, 2.32, 2.33, 2.35, 2.36, 2.37, 2.42 McLaughlin v Hannigan (SC(NSW), Windeyer J, 7 February 1996, unreported) …. 10.46, 11.90 McLaughlin (deceased), Re [1922] P 235 …. 22.8 Mclean (deceased), Re (1911) 31 NZLR 139 …. 13.51, 13.58, 13.59 McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 …. 12.46 — v Public Trustee [2001] NSWSC 970 …. 19.27, 20.22 Macleay v Treadwell [1937] AC 626 …. 22.22 McLennan, Re Estate of [2011] QSC 331 …. 2.64 McLennan v Fisher (1889) 10 LR (NSW) Eq 246 …. 23.10 McLeod v Johns [1981] 1 NSWLR 347 …. 20.29 — v McNab [1891] AC 471 …. 6.15 — v Radnidge [2009] NSWSC 1105 …. 16.35, 17.7, 17.29 McMahon v Smith (2011) 9 ASTLR 428; [2011] NSWSC 487 …. 20.29 McMorran (deceased), Re [1958] Ch 624 …. 22.29, 22.32 McMullen, Re Estate of (2014) 12 ASTLR 114; [2014] ACTSC 53 …. 9.8 McMurchy, In the Will and Estate of [1909] VLR 359 …. 10.40 McNamara, Estate of (SC(NSW), Powell J, 10 April 1992, unreported) …. 4.47 McNamara v Fleming [1963] VR 17 …. 8.9 MCP Pension Trustees Ltd v Aon Pension Trustees Ltd [2012] Ch 1; [2010] EWCA Civ 377 …. 14.57 McPhail (deceased), Re [1971] VR 534 …. 17.37, 20.9

McPherson, Re [1987] 2 Qd R 394 …. 20.9 McPhie v Mackay [1975] 2 NSWLR 369 …. 14.9 Macphillamy v Fox (1932) 32 SR (NSW) 427 …. 14.44 McQuillan, Re [2016] VSC 647 …. 11.115 Maddock, Re [1902] 2 Ch 220 …. 4.76 Maddock v Registrar of Titles (Vic) (1915) 19 CLR 681 …. 10.83 Maestrale v Aspite (2012) 9 ASTLR 575; [2012] NSWSC 1420 …. 24.33 Magarey (deceased), Re Estate of (2009) 265 LSJS 204; [2009] SASC 279 …. 10.2 Magson, Re [1983] NZLR 592 …. 17.25 Maguire (deceased), Re [2010] 2 NZLR 845 …. 10.44 Maher, Re [1905] QWN 58 …. 10.12 Mahlo v Hehir (2011) 4 ASTLR 515; [2011] QSC 243 …. 4.36 Mahon v Mahon [2016] NZCA 642 …. 2.42 Mailes, In the Will of [1908] VLR 269 …. 23.26 Main, In the Goods of (1858) 1 Sw & Tr 11; 164 ER 606 …. 11.6 Maisel v National Mutual Life Association of Australasia Ltd [2016] QSC 166 …. 11.9 Major, In the Will of (1914) 14 SR (NSW) 126 …. 10.75 Male, Re [1934] VLR 318 …. 4.6 Maley, Re [1944] SASR 99 …. 23.9 Mangraviti v Donato [2009] NSWSC 1258 …. 12.25 Manktelow v Public Trustee (2001) 25 WAR 126; [2001] WASC 290 …. 12.5, 12.7, 13.34 Manley, Re [2013] SASC 98 …. 3.8 Manlio, Re [2015] VSC 733 …. 9.82, 16.16 Manly v Public Trustee [2008] QCA 198 …. 18.3, 18.4, 20.57 Mann, In the Goods of [1891] P 293 …. 11.42, 22.4 Mann v Grantham [2004] VSC 156 …. 10.73 Mann (deceased), In the Goods of [1942] P 146 …. 4.10, 4.11 Manners, Re [1949] Ch 613 …. 7.73, 7.77 Manning, Ex parte (1905) 22 WN (NSW) 114 …. 10.83 Manning v Matsen [2015] NSWSC 1801 …. 20.63 Manocchio v Wilson [2012] VSC 76 …. 11.104 Mansour v Mansour (2009) 24 VR 498; [2009] VSC 177 …. 11.95 Marais, Application of [2009] NSWSC 206 …. 9.18

Marando v Rizzo [2012] NSWSC 739 …. 16.16, 16.24 Maraver, In the Goods of (1828) 1 Hagg Ecc 498; 162 ER 658 …. 22.14 Marcos (deceased), Re Estate of [2001] VSC 69 …. 11.21 Marcuola-Bel Estate, Re [2005] NSWSC 1182 …. 18.3 Marden (deceased), Re Estate of [2008] SASC 312 …. 13.11, 13.12 Mardon, In the Estate of [1944] P 109 …. 6.19 Mardsen (deceased), In the Goods of (1860) 1 Sw & Tr 452; 164 ER 851 …. 1.7 Margaret (deceased), Re Estate of [2012] NSWSC 1490 …. 4.42 Markulin v Drew (1993) DFC ¶95-140 …. 16.21 Marland (deceased), Re [1957] VR 338 …. 17.30 Marley v Rawlings [2015] AC 129; [2014] UKSC 2 …. 2.55, 2.63, 2.64, 2.66, 2.73, 2.75, 8.4, 24.32 Marrie, Re [1938] SASR 289 …. 6.17 Marryat, Re [1969] QWN 6 …. 5.44 Marsden, Re (1884) 26 Ch D 783 …. 12.21 Marsh v Johnston (1860) 1 Sw & Tr 528; 164 ER 845 …. 6.16, 11.17 Marshall, Re Estate of [2015] SASC 61 …. 11.23 Marshall v Carruthers [2002] NSWCA 47 …. 18.3, 18.4 — v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463 …. 11.78, 11.79 — v Public Trustee [2006] NSWSC 402 …. 17.35, 20.22 — v Smith (1907) 4 CLR 1617 …. 9.22 — v Spillane [2001] VSC 371 …. 18.27 Marshall (Inspector of Taxes) v Kerr [1995] 1 AC 148 …. 10.43 Marsland, Re [1939] Ch 820 …. 1.36 Marstella, Re [1989] 1 Qd R 638 …. 16.39, 16.46 Martin, In the Will and Estate of [1912] VLR 206 …. 11.43 Martin, Re [1900] P 211 …. 22.27 Martin v Fuller (1695) Comb 371; 90 ER 534 …. 11.78 Masci, Re Will of [2014] QSC 281 …. 1.43, 1.52 Masci v Masci [2016] 2 Qd R 428; [2015] QCA 245 …. 1.43, 1.52 Maslin, Re [1908] VLR 641 …. 23.29 Mason, Re [1901] 1 Ch 619 …. 7.12 Mason v Tritton (1994) 34 NSWLR 572 …. 9.76 Massie v Laundy (SC(NSW), Young J, 7 February 1986, unreported) …. 17.24, 17.49

Masters (deceased), In the Estate of (1994) 33 NSWLR 446 …. 4.33, 4.37, 4.46, 4.49, 4.52 Mataska v Browne [2013] VSC 62 …. 11.26 Matheson (deceased), Re (1906) 27 NZLR 99 …. 11.36 Mathew (deceased), Re [1984] 2 All ER 396 …. 11.36 Mathews (deceased), Re Estate of [2011] SASC 227 …. 10.69 Matsis, Re (2012) 8 ASTLR 361; [2012] QSC 349 …. 3.17 Matthews, In the Goods of [1898] P 17 …. 11.9 Matthews v Matthews (1913) 17 CLR 8 …. 14.22 — v Warner (1798) 4 Ves 186; 31 ER 96 …. 21.15 — v Williams (1941) 65 CLR 639 …. 7.21, 8.50 Mavrideros v Mack (1998) 45 NSWLR 80 …. 10.68, 11.95, 11.105 — v Mack (SC(NSW), Young J, 16 June 1997, unreported) …. 11.105 Mawson, Re [1939] 4 DLR 801 …. 7.90 Maxwell v Public Trustee [2001] NSWSC 764 …. 17.32 Maxwell (deceased), Re (1929) 140 LT 471 …. 11.17 Mayd, In the Goods of (1881) LR 6 PD 17 …. 2.24 Mayfield v Lloyd-Williams [2004] NSWSC 419 …. 17.76, 20.45 Maynard v Estate of Maynard [2015] QSC 144 …. 11.9 Mayo, Re [1943] Ch 302 …. 11.92 Mayor, Alderman and Citizens of Canterbury v Wyburn [1895] AC 89 …. 22.21 M’Donnell v Prendergast (1830) 3 Hagg Ecc 212; 162 ER 1134 …. 10.65 Mead v Lemon [2015] WASC 71 …. 17.49, 18.34, 19.7 Meatyard, In the Goods of [1903] P 125 …. 22.7 Medlock, Re (1886) 55 LJ (Ch) 738 …. 14.36 Medwin, Re (1919) 15 Tas LR 74 …. 13.56, 13.68 Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146; [2002] NSWCA 22 …. 12.31, 12.47 Megic v Public Trustee for the Australian Capital Territory (1995) 59 FCR 165 …. 1.36 Meier (deceased), In the Will and Estate of [2004] VSC 337 …. 7.4 Meier v Bell (SC(Vic), Ashley J, 3 March 1997, unreported) …. 12.6, 12.9 Melbourne, Re [2016] VSC 514 …. 7.11, 9.5 Mellino v Wnuk [2013] QSC 336 …. 4.36 Mengel’s Will Trusts, Re [1962] Ch 791 …. 7.90, 22.34

Menzies v Marriott [2009] VSC 345 …. 17.29, 20.28, 20.29 — v Pulbrook (1841) 2 Curt 845; 163 ER 605 …. 11.26 Mercer, Re [1944] 1 All ER 759 …. 7.23 Mercer (deceased), Re [1964] QWN 26 …. 10.7 Merryweather v Turner (1844) 3 Curt 802; 163 ER 907 …. 11.30 Methuen v Methuen (1817) 2 Phil 416; 161 ER 1186 …. 5.3 Meyer, In the Estate of [1908] P 353 …. 2.21, 2.72 Meyers, Re [1951] 1 Ch 534 …. 2.79 Meyerstein, Re Estate of (2009) 4 ASTLR 180; [2009] VSC 564 …. 9.18 Meynert v Leafdale Pty Ltd [2005] WASC 102 …. 10.43 Micallef, In the Estate of [1977] 2 NSWLR 929 …. 22.27 Micallef v Micallef [2012] QSC 239 …. 7.43 Michael (deceased), Re Estate of [2016] SASC 164 …. 4.6, 4.36 Michell (deceased), Re (1971) 2 SASR 312 …. 8.61 Middlebrook v Middlebrook (1962) 36 ALJR 216 …. 23.5, 23.10 Midgley v Midgley [1893] 3 Ch 282 …. 12.16, 12.18 Midland Bank Executor and Trustee Co Ltd v Rose [1949] 1 Ch 78 …. 7.25 Mihalopous, Re (1956) 5 DLR (2d) 628 …. 4.75 Milenkovic v McConnell [2013] WASC 421 …. 12.7 Miles v Official Receiver in Bankruptcy (1963) 109 CLR 501 …. 14.18 Milewski v Holben [2014] NSWSC 388 …. 18.15, 18.18 Milillo v Konnecke (2009) 2 ASTLR 235; [2009] NSWCA 109 …. 18.10, 19.46, 20.57, 23.25 Millar, Will of [1908] VLR 682 …. 23.12 Millburn-Snell v Evans [2012] 1 WLR 41; [2011] EWCA Civ 577 …. 11.78 Miller, Re (1889) 61 LT 365 …. 8.30 Miller, Re [1991] 1 Qd R 359 …. 7.33 Miller, Re Estate of (2002) 223 LSJS 133; [2002] SASC 358 …. 2.70 Miller v Cameron (1936) 54 CLR 572 …. 11.107 — v Cooney [2004] NSWCA 380 …. 24.9, 24.38, 24.40 — v Jones [2002] NSWSC 1200 …. 14.26 — v Miller (2000) 50 NSWLR 81; [2000] NSWSC 767 …. 4.59 — v Thurgood (1864) 33 Beav 496; 55 ER 461 …. 7.92 Mills v Anderson [1984] 1 QB 704 …. 11.82 — v Shields [1948] IR 367 …. 1.16, 1.20 Mills (deceased), Re [1952] SASR 274 …. 7.84, 7.85, 7.86, 7.87

Milne v Kendall [2010] WASC 338 …. 18.40 Milnes v Foden (1890) LR 15 PD 105 …. 1.7 Milton, Re [1999] VSC 417 …. 10.3 Minchin v Gabbett [1896] 1 IR 1 …. 7.90 Minister of State for the Interior v RT Co Pty Ltd (1962) 107 CLR 1 …. 11.78 Ministry of Health v Simpson [1951] AC 251 …. 12.60, 14.55 Mirisklavos v Mouchtouris [2004] VSC 178 …. 11.104 Missen v Missen [2016] VSC 539 …. 18.41 Mitchell v Gard (1863) 3 Sw & Tr 275; 164 ER 1280 …. 23.5, 23.6 — v Mitchell [2010] WASC 174 …. 4.38 — v Osborne (SC(NSW), Macready M, 17 November 1994, unreported) …. 19.49 — v Reproductions Pty Ltd (1952) 53 SR (NSW) 65 …. 11.90 Mitchner (deceased), Re [1922] St R Qd 252 …. 22.21 Moggridge v Thackwell (1792) 1 Ves 464; 30 ER 440 …. 7.83 Mohamidu Mohideen Hadjiar v Pitchey [1894] AC 437 …. 10.17 Mohan v Broughton [1899] P 211 …. 11.30 Moloney v Goodwin (SC(NSW), Needham J, 1 August 1989, unreported) …. 16.21 Monckton, Re [1996] 2 Qd R 174 …. 16.39 Monger v Taylor [2000] VSC 304 …. 3.2, 3.3 Montagu v Earl of Sandwich (1886) 32 Ch D 525 …. 7.81 Montalto, Re [2016] VSC 266 …. 11.24 Montalto v Sala [2016] VSCA 240 …. 11.24 Monteith, In the Will of (1896) 22 VLR 60 …. 11.19 Monty Financial Services Ltd v Delmo [1996] 1 VR 65 …. 11.104 Moodie v Hosegood [1952] AC 61 …. 11.75 Moon v Abrahams [2010] NSWSC 69 …. 23.37 — v Gordon (SC(NSW), Young J, 30 April 1996, unreported) …. 17.49 Moore v Moore (1874) LR 18 Eq 474 …. 1.26 — v — [2004] NSWSC 587 …. 23.37 — v — (CA(NSW), Hutley, Glass and Samuels JJA, 16 May 1984, unreported) …. 18.10 — v Randall [2012] NSWSC 184 …. 17.24 — v Smith (SC(NSW), McLelland CJ in Eq, 16 February 1994, unreported) …. 9.84

Moore (deceased), In the Will of (1896) 17 LR (NSW) B & P 78 …. 13.48 Moore (deceased), Re [1907] 1 IR 315 …. 6.3 Moore (deceased), Re [1956] VLR 132 …. 13.54 Moran, Estate [2014] NSWSC 1839 …. 4.38 Moran v House (1924) 35 CLR 60 …. 23.41 Morant, In the Goods of (1874) LR 3 P&D 151 …. 10.58 Morgan, In the Goods of (1866) LR 1 PD 214 …. 1.7 Morgan, In the Will of [1950] VLR 335 …. 4.13 Morgan, Re (1881)18 Ch D 93 …. 12.22, 13.40 Morgan v MacRae [2001] NSWSC 1017 …. 11.99, 11.105 — v Morgan [2000] VSC 445 …. 11.104 — v Thomas (1853) 8 Exch 302; 155 ER 1362 …. 11.82 Moriarty (deceased), In the Will of [1956] VLR 400 …. 11.19 Morish, Re [1939] SASR 305 …. 12.47, 13.22 Morrall v Sutton (1845) 1 Ph 533; 41 ER 735 …. 8.21 Morrell v Fisher (1849) 4 Ex 591; 154 ER 1350 …. 8.28 — v Morrell (1882) LR 7 PD 68 …. 2.58 Morris, Re [1971] P 62 …. 2.28, 2.58 Morris v Hannagan [2011] NSWSC 1684 …. 11.92 Morrison, In the Will of (1933) 50 WN (NSW) 88 …. 13.55, 13.67 Morrison v Carruthers [2010] NSWSC 430 …. 16.24, 16.25, 16.29, 16.33 Morse v Royal (1806) 12 Ves 355; 33 ER 134 …. 12.22 Mortensen v State of New South Wales (CA(NSW), 9 December 1991, unreported) …. 2.67, 2.70 Mortimer v Lusink [2017] QCA 1 …. 17.35 Morton, In the Goods of (1887) LR 12 PD 141 …. 5.10, 5.49 Morton (deceased), Re [1963] VR 40 …. 7.32 Moschoudis, Re [2016] VSC 139 …. 5.14, 11.21 Moss, Re (1977) 77 DLR (3d) 317 …. 7.42 Moylan v Rickard [2010] QSC 327 …. 7.40 Moyle v Moyle (1831) 2 Russ & My 710; 39 ER 565 …. 10.72, 12.25 Moyle (deceased), In the Will of [1920] VLR 147 …. 8.9 Muir v Archdall (1918) 19 SR (NSW) 10 …. 9.8 Mulcahy v Weldon [2001] NSWSC 474 …. 18.15, 18.17 — v — [2002] NSWCA 206 …. 18.15, 18.17 Mulhall v Kelly (2006) 1 ASTLR 394; [2006] VSC 407 …. 7.35

Mulholland’s Will Trusts, Re [1949] 1 All ER 460 …. 12.22 Muller v Marriott (1921) 22 SR (NSW) 100 …. 23.9 Mulligan (deceased), Re [1998] 1 NZLR 481 …. 12.26 Mullins-Trnovsky v Adams (2014) 121 SASR 155; [2014] SASC 116 …. 11.100, 11.105 Mulray v Ogilvie (1987) 9 NSWLR 1 …. 10.16, 10.17 Mundy (deceased), In the Goods of (1860) 2 Sw & Tr 119; 164 ER 938 …. 1.7 Munro v Lake (SC(NSW), 8 February 1991, McLelland J, unreported) …. 16.19, 16.21 Murdocca v Murdocca (No 2) [2002] NSWSC 505 …. 23.40 Murphy v Lamphier (1914) 20 DLR 906 …. 24.6 — v — (1914) 31 OLR 287 …. 24.6 — v Stewart [2004] NSWSC 569 …. 19.22 Murphy (deceased), Re [1928] St R Qd 1 …. 13.68 Murray, Re Estate of [2012] 2 NZLR 546 …. 4.31 Musgrave, Re [1916] 2 Ch 417 …. 14.44 Musgrove, In the Estate of [1927] P 264 …. 2.32, 4.20 Musolino (deceased), Re [2008] SASC 334 …. 11.95 N N, Re [1950] VLR 139 …. 11.17, 11.18 Nagel v Hough (1927) 27 SR (NSW) 418 …. 10.19 Napier, In the Goods of (1809) 1 Phil 83; 161 ER 921 …. 11.32 Napolitano v State Trustees Ltd [2012] VSC 345 …. 18.52 National Australia Trustees Ltd v Fazey [2011] NSWSC 559 …. 4.38 National Safety Council of Australia, Victorian Division (in liq) (No 2), Re [1992] 1 VR 485 …. 23.4 National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children [1915] AC 207 …. 8.40 National Trustees Executors and Agency Company of Australasia Ltd v Dwyer (1940) 63 CLR 1 …. 12.44 National Westminster Bank plc v Lucas [2014] WTLR 637; [2014] EWHC 653 …. 11.101 Neale v Neale [2015] NSWCA 206 …. 18.3 Nealon v Public Trustee [1949] NZLR 148 …. 1.38 Neil v Jacovou [2011] NSWSC 87 …. 18.12, 20.35

— v Nott (1994) 121 ALR 148 …. 17.30 Neilson v Public Trustee (SC(NSW), Powell J, 8 May 1992, unreported) …. 11.30 Nelson v Nelson (SC(WA), Kennedy J, 9 April 1999, unreported) …. 17.71 Nenke v Nunn [1967] WAR 79 …. 17.37 Neuendorf v Public Trustee of Queensland [2015] 1 Qd R 513; [2013] QSC 156 …. 7.40 Newell v Weeks (1814) 2 Phil 224; 161 ER 1126 …. 11.32 Newey (deceased), Re [1994] 2 NZLR 590 …. 1.40, 1.42, 1.43, 1.51 Newland Bros Pty Ltd, Ex parte [1956] SR (NSW) 35 …. 11.75 Newman v Clarke [2017] 4 WLR 26; [2016] EWHC 2959 …. 12.22 Newton v Sherry (1876) 1 CPD 246 …. 14.53 Ng v Morgan [2014] NSWSC 536 …. 17.33, 18.42 Nicholas v Nicholas [2013] NSWSC 697 …. 17.16, 19.4 — v Penn [2004] WASC 227 …. 4.20 Nicholls, Re (1987) 34 DLR (4th) 321 …. 2.80 Nicholls, Re Estate of [2014] SASC 204 …. 5.8 Nicholls v Hall (2007) 2 ASTLR 419; [2007] NSWCA 356 …. 17.66, 17.78, 18.34, 23.29 Nichols v Nichols (1814) 2 Phill 180; 161 ER 1113 …. 2.21 Nicholson v Knaggs [2009] VSC 64 …. 2.17, 2.39, 2.42, 2.43, 2.45, 24.6 — v Revill (1836) 4 Ad & E 673; 111 ER 941 …. 14.19 Nickson (deceased), Re [1916] VLR 274 …. 2.36, 2.47, 2.54, 11.16 Nicol, In the Will of (1926) 43 WN (NSW) 146 …. 10.10 Nicol v Chant (1909) 7 CLR 569 …. 8.3 Niefhoff v Niehoff [1995] 2 VR 356 …. 15.14, 15.16, 15.18, 17.81 Nield v Fowler [1961] NSWR 85 …. 14.5 Nielsen, Re [1968] Qd R 221 …. 23.26 Nies (deceased), Re Estate of [2014] SASC 93 …. 2.65, 2.69, 8.9, 8.51 Nissen v Grunden (1912) 14 CLR 297 …. 13.43, 13.54 Niven, In the Estate of (1921) 21 SR (NSW) 702 …. 5.18 Nock v Austin (1918) 25 CLR 519 …. 2.28, 2.29, 2.30, 2.37, 11.14, 23.13 Nocton v Lord Ashburton [1914] AC 932 …. 12.45 Nolan, Re Estate of [2004] NSWSC 1191 …. 2.66, 2.67 Nolan v Nolan (2011) 6 ASTLR 80; [2011] WASC 224 …. 11.9 Norrington, Re (1879) 13 Ch D 654 …. 13.3, 13.13

Norris v Tuppen [1999] VSC 228 …. 2.3, 2.13 North v Wakefield (1849) 13 QB 536; 116 ER 1368 …. 14.19 Northey v Cock (1822) 1 Add 326; 162 ER 114 …. 11.50 Norton v Carey (HC(NZ), Elias J, 1 July 1996, unreported) …. 2.45 Novosadek, Re Estate of [2016] NSWSC 554 …. 7.69 Nowak v Beska [2013] NSWSC 166 …. 17.7, 17.57 Nowakowski v Gajdobranski (SC(Vic), Ashley J, 12 April 1996, unreported) …. 11.93 Nowell v Palmer (1993) 32 NSWLR 574 …. 1.43, 14.57 Nowland (deceased), In the Estate of (1906) 6 SR (NSW) 289 …. 10.70 NSW Trustee and Guardian, Application by (2013) 12 ASTLR 148; [2013] NSWSC 1683 …. 9.18 NSW Trustee and Guardian, Application by [2016] NSWSC 1436 …. 9.18 NSW Trustee and Guardian, Re [2015] NSWSC 1529 …. 9.18 NSW Trustee and Guardian v Halsey [2012] NSWSC 872 …. 4.46, 4.63 — v Hirsch (2013) 11 ASTLR 479; [2013] NSWSC 1397 …. 8.19 — v Pittman [2010] NSWSC 501 …. 4.34, 4.38 — v Ritchie [2011] NSWSC 715 …. 7.27 — v State of New South Wales [2015] NSWSC 1121 …. 11.85 NT v FS [2013] WTLR 867; [2013] EWHC 684 …. 3.1 Nudd v Mannix [2009] NSWCA 327 …. 23.35 Nunn v Barlow (1824) 1 Sim & St 588; 57 ER 233 …. 14.13 Nutt v Public Trustee (SC(NSW), McLaughlin M, 27 November 1996, unreported) …. 20.29 Nyunt (deceased), Re Estate of [2015] SASC 14 …. 14.29 O Oakes, Re [1917] 1 Ch 230 …. 11.50 Oakes v Oakes [2014] NSWSC 1312 …. 16.21, 16.36 Oakley, Re [1986] 2 Qd R 269 …. 16.39, 16.46, 20.9 Oberg, Re [1952] QWN 38 …. 4.55 O’Brien v Hall [2015] VSC 52 …. 17.11 — v McCormick [2005] NSWSC 619 …. 13.40 — v Warburton [2012] WASC 82 …. 13.11, 13.15, 13.20, 13.73 O’Brien (deceased), Re Estate of [2011] 4 IR 687; [2011] IEHC 327 …. 5.30 Ocalewicz v Joyce (2012) 8 ASTLR 256; [2012] NSWSC 1163 …. 22.14

O’Connor, Re [1934] QWN 18 …. 5.48 O’Connor, Re [1948] Ch 628 …. 7.5, 7.6, 7.25 O’Connor v S P Bray Ltd (1936) 36 SR (NSW) 248 …. 7.89, 7.90 Oddie, In the Will of [1976] 1 NSWLR 371 …. 13.44, 13.56, 13.67 O’Dea, Re [1936] VLR 48 …. 11.24 Odlin (deceased), Re [1938] NZLR 700 …. 10.7 O’Donnell, Re [1929] SASR 256 …. 23.5, 23.11 O’Donnell v Gillespie [2010] QSC 22 …. 19.27 O’Driscoll, Will of (1929) 29 SR (NSW) 559 …. 23.5, 23.12 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 …. 10.43 Official Trustee in Bankruptcy v Frangos (CA(Vic), 7 July 1995, unreported) …. 17.45 Ofner, Re [1909] 1 Ch 60 …. 8.42 Ogburn v Ogburn [2012] NSWSC 79 …. 18.6 Ogilvie, Re [1918] 1 Ch 492 …. 22.34 O’Grady v Wilmot [1916] 2 AC 231 …. 14.1 Old Colonists Association of Victoria v Cox (SC(Vic), Nathan J, 30 August 1991, unreported) …. 11.104 Oldereid v Chan [2013] NSWSC 434 …. 18.28 Oldham, Re [1925] Ch 75 …. 1.42 Olding (deceased), In the Goods of (1841) 2 Curt 865; 163 ER 611 …. 4.12 O’Leary v O’Leary [2010] NSWSC 1347 …. 18.10 Olins v Walters [2009] Ch 212; [2008] EWCA Civ 782 …. 1.51 Olive, Re [1989] 1 Qd R 544 …. 7.11 O’Loughlin v Arnott [2014] VSC 416 …. 24.16 — v O’Loughlin [2003] NSWCA 99 …. 18.3, 18.4, 18.5, 18.12 O’Mara, Re (1909) 10 SR (NSW) 67 …. 8.26 Omari v Omari [2012] ACTSC 33 …. 10.25 O’Mullane (deceased), Re [1955] VLR 217 …. 8.13, 8.26 Oreski v Ikac [2007] WASC 195 …. 23.6 — v — [2008] WASCA 220 …. 4.38, 23.6 Orloff (deceased), Re Will of (No 2) (2010) 24 VR 603; [2010] VSC 48 …. 10.42, 10.77 Orloff (deceased), Re Will of (No 2) (2010) 24 VR 603; [2010] VSC 83 …. 10.23, 10.24, 10.60 O’Reilly, In the Will of [1927] VLR 533 …. 11.17, 11.18

O’Reilly, Re [2015] VSC 708 …. 12.18 Orr v Kaines (1750) 2 Ves 194; 28 ER 125 …. 14.41, 14.43 Orre, Re Estate of (SC(NSW), Powell J, 19 December 1991, unreported) …. 12.30 Ortner v Mewjork [2009] NSWSC 1381 …. 2.35 Orwell’s Will Trusts, Re [1982] 3 All ER 177 …. 13.46 Osborne v Estate of Osborne (2001–2002) 4 ITELR 804; [2001] VSCA 228 …. 1.42, 1.43, 1.47 — v Smith (1960) 105 CLR 153 …. 2.54, 2.59, 2.61, 11.29, 11.32, 15.2 Osbourne, Re [1928] St R Qd 129 …. 22.35 O’Shaughnessy v Mantle (1986) 7 NSWLR 142 …. 18.15 Oshlack v Richmond River Council (1998) 193 CLR 72 …. 15.10 Osment, Estate of [1914] P 129 …. 23.13 Ottaway v Norman [1972] Ch 698 …. 4.71 Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd [2011] VSC 222 …. 17.19 Ottley v Gilby (1845) 8 Beav 602; 80 ER 237 …. 12.31 Otto v Redhead [2008] QSC 280 …. 11.94 — v — [2009] QCA 147 …. 11.94 Owen v Public Trustee [2006] WASC 276 …. 4.34 P Pacella v Sherborne [2009] WASC 58 …. 13.34 Packo v Packo (1989) 17 NSWLR 316 …. 17.49 Padbury v Clark (1850) 2 Mac & G 298; 42 ER 115 …. 7.89, 7.90 Page, In the Will of [1969] 1 NSWR 471 …. 5.3, 5.4, 5.5 Page v Page [2016] NSWSC 1218 …. 15.22 Pagels v MacDonald (1936) 54 CLR 519 …. 10.43, 10.45, 10.46, 10.80, 13.4 Paget v Huish (1863) 1 H & M 663; 71 ER 291 …. P.11, 7.3 Pain v Holt (1919) 19 SR (NSW) 105 …. 22.35 Paine’s Estate, Re (1916) 115 LT 935 …. 10.69 Palethorpe v Public Trustee of Queensland (2011) 5 ASTLR 280; [2011] QSC 335 …. 2.65 Palmer, In the Will of (1904) 29 VLR 946 …. 22.4 Palmer v Bank of New South Wales [1973] 2 NSWLR 244 …. 1.33 — v — (1975) 133 CLR 150 …. 1.33, 1.35, 1.36

— v Dolman [2005] NSWCA 361 …. 19.16, 19.20 — v Nowell (SC(NSW), Brownie J, 22 July 1993, unreported) …. 1.43 — v Permanent Trustee Co (1916) 16 SR 162 …. 14.44 — v Smedley [1974] 1 NZLR 751 …. 11.23 Panapa, Re [1993] 1 NZLR 694 …. 2.23 Pankhurst v Howell (1870) LR 6 Ch App 136 …. 7.88 Panozzo v Worland [2009] VSC 206 …. 17.82, 19.14 Parfitt v Lawless (1872) LR 2 P & D 462 …. 2.40, 2.43 Park, Re [1932] 1 Ch 580 …. 2.80 Parker, Re [1995] 2 Qd R 617 …. 11.9 Parker v Australian Executor Trustees Ltd [2016] SASC 64 …. 19.16 — v — (No 2) (2016) 126 SASR 142; [2016] SASC 115 …. 23.4 — v Felgate (1883) LR 8 PD 171 …. 2.19, 2.20, 2.27 — v Kett (1701) 1 Ld Raym 658; 91 ER 1338 …. 10.19 — v Public Trustee (SC(NSW), Young J, 31 May 1988, unreported) …. 19.47 Parkinson, Re [1952] Tas SR 9 …. 7.41 Parkinson (deceased), In the Estate of (1988) 143 LSJS 336 …. 4.38 Parsons (deceased), In the Will of (1887) 13 VLR 169 …. 10.23 Partington v Reynolds (1858) 4 Drew 253; 62 ER 98 …. 12.47 Patching v Barnett (1880) 28 WR 866 …. 7.12 Paterson (deceased), Re [1986] SLT 121 …. 7.70 Pates v Craig (SC(NSW), Santow J, 28 August 1995, unreported) …. 24.6, 24.15 Paton v Public Trustee (SC(NSW), Young J, 8 December 1988, unreported) …. 18.3 Pattie v Fry (1911) 30 NZLR 581 …. 4.20 Paulin, Re [1950] VLR 462 …. 22.36 Pauling’s Settlement Trusts, Re [1961] 3 All ER 713 …. 12.56 Pauton, In the Will of (1909) 26 WN (NSW) 51 …. 13.67 Payten v Perpetual Trustee Co Ltd [2005] NSWSC 345 …. 5.6, 11.23 Peacock, Re [1957] Ch 310 …. 7.57 Pearse v Green (1819) 1 Jac & W 135; 37 ER 327 …. 12.30 Pearse (deceased), Re [1946] SASR 118 …. 8.13 Pearson v Pearson (1802) 1 Sch & Lef 10 …. 14.32 Pearson (deceased), Re [1963] 2 All ER 763 …. 6.19 Pechar, Re [1969] NZLR 574 …. 7.49, 7.67

Peck v Halsey (1726) 2 P Wms 387; 24 ER 780 …. 8.46 Pedersen, Re (SC(NSW), Holland J, 17 June 1977, unreported) …. 10.71, 11.38 Pegg v Chamberlain (1860) 1 Sw & Tr 527; 164 ER 844 …. 11.42 Pekel v Humich (SC(WA), Sanderson M, 3 December 1998, unreported) …. 11.78, 11.80 Pellissier v Melville [2006] NTSC 93 …. 19.16 Penfold v Perpetual Trustee Company Ltd [2002] NSWSC 648 …. 18.15, 18.17 Pengelly v Pengelly [2008] Ch 375; [2007] EWHC 3227 …. 2.64 Penn v Richards [2002] VSC 378 …. 19.7 Penrose, Re [1933] Ch 793 …. 8.76 Peoples v Simpson [2005] NSWSC 355 …. 8.50 Pepin v Bruyére [1902] 1 Ch 24 …. 22.15 Pepperill (deceased), Re [1927] St R Qd 154 …. 4.67, 5.10 Perdoni v Curati [2012] WTLR 505; [2011] EWHC 3442 …. 5.6 Pereira v Patrick [2001] WASC 342 …. 19.33 Perera v Perera [1901] AC 345 …. 2.20 Perkins v Micklethwaite (1714) 1 P Wms 274; 24 ER 386 …. 6.5 — v Williams (1905) 22 WN (NSW) 107 …. 23.39 Permanent Trustee Co v Redman (1917) 17 SR (NSW) 353 …. 23.2 Permanent Trustee Co Ltd v Bernera Holdings Pty Ltd (2004) 182 FLR 431; [2004] NSWSC 56 …. 12.18 — v Fraser (1995) 36 NSWLR 24 …. 17.65 — v Freedom from Hunger Campaign (1991) 25 NSWLR 140 …. 7.49, 7.52, 7.70 — v Gillett (2004) 145 A Crim R 220; [2004] NSWSC 278 …. 7.48 — v Milton (1996) 39 NSWLR 330 …. 4.49, 4.50 Permanent Trustee Co (Canberra) Ltd v Finlayson (1968) 122 CLR 338 …. 22.10, 22.11 Permanent Trustee Co of New South Wales Ltd v Royal Prince Alfred Hospital (1944) 62 WN (NSW) 137 …. 14.32, 14.38 Perpetual Executors and Trustees Association of Australia Ltd v Wright (1917) 23 CLR 185 …. 23.42 Perpetual Executors, Trustees and Agency Co (WA) Ltd v Western Australian Trustee, Executor and Agency Co Ltd (1942) 44 WALR 29 …. 12.47

Perpetual Trustee Co v Williamson (1929) 29 SR (NSW) 487 …. 2.57 Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244 …. 2.10, 23.6, 23.9, 23.44 — v Fairlie-Cunninghame (1993) 32 NSWLR 377 …. 2.3 — v Gilmour [1979] 2 NSWLR 716 …. 8.35, 8.46 — v McKendrick [1973] 2 NSWLR 784 …. 8.50 — v Public Trustee (1956) 56 SR (NSW) 384 …. 11.74 — v Satchell (1939) 39 SR (NSW) 335 …. 10.12 — v Watson (1902) 2 SR (NSW) 13 …. 23.17 Perpetual Trustees (WA) Ltd v Equus Corp Pty Ltd (SC(NSW), Young J, 5 March 1998, unreported) …. 14.24 Perriman (deceased), Re Estate of [2003] WASC 191 …. 4.38 Perrin v Morgan [1943] AC 399 …. 8.3, 8.4, 8.12, 8.39, 8.40 Perrins v Holland [2011] Ch 270; [2010] EWCA Civ 840 …. 2.19, 2.20 Perrott v Public Trustee [2012] WASC 365 …. 17.27 Peruvian Railway Construction Co Ltd, Re [1915] 2 Ch 144 …. 14.24 Petchell, In the Goods of (1874) 3 P & D 153 …. 5.6 Petchell (deceased), Re (1945) 46 WALR 62 …. 2.72 Peters v Leeder (1878) 47 LJQB 573 …. 10.15 — v Peters (1907) 7 SR (NSW) 398 …. 23.12 Petersen v Gregory [2007] NSWSC 8 …. 9.82 Petrohilos v Hunter (1991) 25 NSWLR 343 …. 16.23, 18.49 Petrovski v Nasev [2011] NSWSC 1275 …. 2.39, 2.43, 24.4 Petrucci v Fields [2004] VSC 425 …. 15.14, 16.36, 16.49, 18.41, 18.42, 18.52 Petschelt v Petschelt [2002] NSWSC 706 …. 20.71 Peverett, In the Goods of [1902] P 205 …. 4.20 Phegan v Hynes [2011] NSWSC 246 …. 16.35 Phelan v Booth (1941) 43 WALR 60 …. 11.95, 11.96, 11.105 Phelan (deceased), Re [1972] Fam 33 …. 2.28, 2.57 Phelps (deceased), Re [1980] Ch 275 …. 9.57 Philipson-Stow v Inland Revenue Commissioners [1961] AC 727 …. 22.22 Phillips, In the Estate of (1918) 34 TLR 256 …. 4.64 Phillips, In the Estate of [1947] VLR 379 …. 10.25 Phillips v Beal (1858) 25 Beav 25; 53 ER 545 …. P.11 — v Cayley (1890) 43 Ch D 222 …. 8.76 — v James (2014) 85 NSWLR 619; [2014] NSWCA 4 …. 20.65, 20.71

— v Quinton (SC(NSW), Powell J, 31 March 1988, unreported) …. 17.37 Phillpot v Olney [2004] NSWSC 592 …. 11.4 Pickering v Stamford (1797) 3 Ves 492; 30 ER 1121 …. 9.8 Pierce, Re (1886) 12 VLR 733 …. 10.23 Piercy, Re [1895] 1 Ch 83 …. 22.21 Pike v Pike [2015] QSC 134 …. 7.54, 10.71 Pike (deceased), Re [2015] SASC 166 …. 14.29 Pilton v Pilton [2008] WASC 303 …. 17.22, 17.24, 17.35 Pink, Re [1912] 2 Ch 528 …. 14.19, 14.20, 14.21, 14.22 Pinney v Pinney (1828) 8 B & C 335; 108 ER 1067 …. 11.29, 11.79 Piper v Piper (1886) 5 NZLR (SC) 135 …. 8.34 Pipon v Pipon (1744) Amb 25; 27 ER 14 …. 22.13 Pirie, In the Will of (1884) 10 VLR (IP & M) 43 …. 10.84 Pitts, Re [1931] 1 Ch 546 …. 7.49 Plaister, Re (1934) 34 SR (NSW) 547 …. 7.49, 11.85 Plant, Re [1974] Qd R 203 …. 8.12 Playoust v Hornsby (2005) 11 VR 504; [2005] VSCA 73 …. 8.20 Plenty v West (1845) 1 Rob Ecc 264; 163 ER 1033 …. 5.6 Plimmer v Plimmer (1906) 9 GLR 10 …. 17.62 Plowright (deceased), Re [1971] VR 128 …. 7.5, 7.6, 7.25 Plunkett, Re [1965] VR 118 …. 11.23 Podger (deceased), In the Will of [1957] VR 275 …. 11.4, 11.21, 11.22 Poesch v Grosvero [2013] VSC 596 …. 20.29 Pohlner v Pfeiffer (1964) 112 CLR 52 …. 7.31, 8.68 Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 …. 20.54 Pollock, Re (1885) 28 Ch D 552 …. 7.82, 7.88 Pollock, Re [1941] Ch 219 …. 7.57 Pollock, Re [1943] 1 Ch 338 …. 14.32, 14.33 Pollock (deceased), Re [1964] VR 554 …. 7.8 Polyak Estate, Re [1999] NSWSC 862 …. 4.38 Ponsonby, In the Goods of [1895] P 287 …. 11.38 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 …. 17.68, 18.23, 18.34, 19.6, 19.19 Poole v Barrow [2014] VSC 576 …. 20.25 — v Everall [2016] WTLR 1621; [2016] EWHC 2126 …. 2.13, 2.30, 4.20, 24.5 Pope, Re (1975) 11 SASR 571 …. 19.49

Pope v Christie (1998) 144 FLR 380 …. 20.45 Popovski v Kenjar [2011] NSWSC 731 …. 20.29 Popple v Rowe [1998] 1 VR 651 …. 8.53, 16.43, 16.47 Porteous v Rinehart (1998) 19 WAR 495 …. 10.45, 10.46, 11.98, 11.105, 12.1 Porter, In the Goods of (1869) LR 2 P & D 21 …. 2.25 Posner (deceased), In the Estate of [1953] P 277 …. 2.49 Potter’s Will Trusts, Re [1944] Ch 70 …. 8.33 Potticary, In the Estate of [1927] P 202 …. 11.39 Pouey v Hordern [1900] 1 Ch 429 …. 22.28 Pouliot, Re (1984) 30 Man R (2d) 178 …. 4.31 Poulos v Pellicer [2004] NSWSC 504 …. 11.25, 11.26 Powell v Osborne [1993] 1 FCR 797 …. 20.72 — v Powell (1866) LR 1 P & D 209 …. 6.13 — v — [1900] 1 Ch 243 …. 24.21, 24.22 — v Public Trustee [2003] 1 NZLR 381 …. 1.38 Power v Power [2011] NSWSC 288 …. 7.34, 7.35 Powers, Re (1885) 30 Ch D 291 …. 12.46 Powys v Mansfield (1837) 3 My & C 359; 40 ER 964 …. 6.12 Pozniak, Re Estate of [2005] NSWSC 766 …. 2.52 Pratt v Johnson [1959] SCR 102 …. 1.52 Presland v Carroll [2010] NSWSC 21 …. 20.77 Previté, Re [1931] 1 Ch 447 …. P.11 Price v Tickle [2013] 1 Qd R 236; [2011] QSC 206 …. 5.6 Pridham v Pridham (2010) 270 LSJS 433; [2010] SASC 204 …. 1.42 Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458; [1999] FCA 152 …. 7.89 Priest (deceased), Re [1944] Ch 58 …. 22.21 Priestman v Thomas (1884) 9 PD 210 …. 11.32 Prince v Argue [2002] NSWSC 1217 …. 20.67, 20.69 Princess Anne of Hesse v Field [1963] NSWR 998 …. 14.42 Privet v Vovk [2003] NSWSC 1038 …. 12.6, 12.7 Probert v Commissioner of State Taxation (1998) 72 SASR 48 …. 7.43, 10.43 Proctor, Re (1885) NZLR 3 SC 126 …. 13.57 Profilio v Profilio [1999] NSWSC 657 …. 11.94, 11.95, 11.105 Prosper v Wojtowicz [2005] QSC 177 …. 4.62, 4.66 Prosser v Twiss [1970] VR 225 …. 17.81

Proud, Re (1922) 18 Tas LR 10 …. 2.30 Proud v Proud [2012] WASC 134 …. 4.5, 11.23 — v — [2014] WASC 216 …. 20.17 Proud (deceased), Re [1951] QWN 17 …. 11.95 Prucha v Standing [2011] VSC 90 …. 4.45 Pryce, Re [1911] 2 Ch 286 …. 22.28 Pryse (deceased), In the Goods of [1904] P 301 …. 11.38, 11.82 Public Trustee, Ex parte (1951) 51 SR (NSW) 345 …. 10.15, 10.19, 11.73, 11.74, 11.75 Public Trustee v Alexander [2008] NSWSC 1272 …. 4.34, 4.36 — v Alzheimer’s Australia WA Ltd (No 2) [2014] WASC 337 …. 2.5 — v Attorney General [2004] QSC 328 …. 4.32 — v Bebich [2014] WASC 340 …. 14.45, 17.49, 20.42, 20.43 — v Beckman (1914) 15 SR (NSW) 6 …. 7.89, 7.91 — v Bennett [2004] NSWSC 955 …. 9.5 — v Bick [1973] 1 NZLR 301 …. 1.38 — v Bussell (1993) 30 NSWLR 111 …. 1.15, 1.26, 1.27 — v Cerebral Palsy Association of Western Australia Ltd (2004) 28 WAR 496; [2004] WASC 36 …. 7.18 — v Evans (1985) 2 NSWLR 188 …. 7.52, 7.67 — v Fraser (1987) 9 NSWLR 433 …. 7.48, 7.52, 7.64 — v Gittoes [2005] NSWSC 373 …. 14.26 — v Guardian, Trust, and Executors Co of New Zealand Ltd [1939] NZLR 613 …. 11.108 — v Hayles (1993) 33 NSWLR 154 …. 7.48, 7.52, 7.58, 7.61, 7.62, 7.63, 7.64 — v Jones (2007) 251 LSJS 364; [2007] SASC 390 …. 14.22 — v Kehagias [2009] NSWSC 972 …. 9.25 — v Kidd [1931] NZLR 1 …. 10.45 — v Loney [2009] SASC 17 …. 8.50 — v McKeon (1917) 17 SR (NSW) 157 …. 2.35 — v O’Donnell (2008) 101 SASR 228; [2008] SASC 181 …. 9.68, 9.71 — v Permanent Trustee Co Ltd [2003] NSWSC 556 …. 2.75 — v Regan (1933) 33 SR (NSW) 361 …. 7.86 — v Roberts [1966] SASR 269 …. 8.32 — v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17 …. 2.2, 2.10, 2.11, 2.12, 10.25

— v Royal Society for the Prevention of Cruelty to Animals (Inc) (SC(WA), Templeman J, 25 February 1997, unreported) …. 14.59 — v Stretch [2002] WASC 147 …. 2.6 — v Till [2001] 1 NZLR 508 …. 24.5 — v Vodjdani (1988) 49 SASR 236 …. 22.21, 22.22 — v Young (1940) 40 SR (NSW) 233 …. 1.25 Public Trustee and Estate of T, Re [1999] NSWSC 1027 …. 13.37 Public Trustee for the Northern Territory, Application by the [2000] NTSC 52 …. 9.78 Public Trustee of New South Wales v Herbert [2009] NSWSC 366 …. 2.77, 8.42 Public Trustee of Queensland v Lee (2011) 5 ASTLR 142; [2011] QSC 409 …. 7.35 — v Public Trustee of Queensland [2015] 1 Qd R 601; [2014] QSC 47 …. 7.54 — v Smith [2009] 1 Qd R 26; [2008] QSC 339 …. 2.65, 2.76, 2.77, 8.6, 8.44 — v Stibbe [2012] QSC 357 …. 7.37, 7.40, 8.12 Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul (2009) 4 ASTLR 16; [2009] WASC 75 …. 11.4 Public Trustee (WA) v Seow [2003] WASC 62 …. 11.49, 11.50 Puckridge (deceased), Estate of (1978) 20 SASR 72 …. 17.76, 18.38 Pugh v Delgado [2006] WASC 267 …. 20.42 Pulleng v Public Trustee [1922] NZLR 1022 …. 8.51, 17.66, 18.1 Purdon, Estate of (1935) 53 WN (NSW) 148 …. 12.28 Purton, Re [1943] QWN 33 …. 11.9 Pyke (deceased), Re (1861) 1 W & W (IE & M) 20 …. 11.30, 11.33 Pym v Lockyer (1841) 5 My & Cr 29; 41 ER 283 …. 7.81 Pyrenees Vineyard Management Ltd v Frajman (2008) 69 ACSR 95; [2008] VSC 552 …. 14.24 Q Quartermain Estate, Re (2009) 2 ASTLR 283; [2009] NSWSC 553 …. 4.46 Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 93 …. 24.39 Quinlivan, Re [2013] WASC 286 …. 12.1 R

R v Chief of National Insurance Commissioner [1981] QB 758 …. 7.48, 7.51 — v Cook (1985) 156 CLR 249 …. 8.51 — v Fox (1841) 2 QB 246; 114 ER 95 …. 12.5 — v J [2017] WASC 53 …. 3.16 — v R (SC(NSW), Hodgson CJ in Eq, 14 November 1997, unreported) …. 7.70 — v Raines (1698) 1 Ld Raym 361; 91 ER 1138 …. 10.70 — v Skinner [1972] 1 NSWLR 307 …. 7.46, 9.15 R (deceased), Re [1951] P 10 …. 2.32 Radcliffe, Re [1891] 1 Ch 227 …. 11.83 Radziszewski (deceased), In the Estate of (1982) 29 SASR 256 …. 4.6 Raiola v Raiola [2014] NSWSC 1172 …. 23.29 RAK, Re (2009) 265 LSJS 263; [2009] SASC 288 …. 3.20 Rake (deceased), Re Estate of [2012] SASC 87 …. 14.29 Ralph v Carrick (1879) 11 Ch D 873 …. 8.50 Ralphs (deceased), Re [1968] 3 All ER 285 …. 17.49, 20.17 Ralston, In the Estate of (SC(NSW), Hodgson J, 2 September 1996, unreported) …. 11.23 Ralston, Re [1906] VLR 689 …. 22.13 Ramage v Waclaw (1988) 12 NSWLR 84 …. 12.13 Ramcoomarsingh v Administrator General [2002] UKPC 67 …. 24.22 Ranclaud v Cabban [1988] ANZ Conv R 134 …. 24.6, 24.7 Rancliffe v Parkyns (1818) 6 Dow 149; 3 ER 1428 …. 7.90 Randall v Randall [2017] Ch 77; [2016] EWCA Civ 494 …. 11.26 Randall (deceased), Re [1927] VLR 535 …. 10.7 Rankine (deceased), In the Estate of [1918] P 134 …. 10.7 Rasheed v Rasheed (1999) 73 SASR 346; [1999] SASC 88 …. 11.30 Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407 …. 7.48, 7.67 Ratcliffe, In the Goods of [1899] P 110 …. 11.42 Rattenberry, Re [1906] 1 Ch 667 …. 7.73, 7.76 Ravenscroft v Jones (1863) 32 Beav 669; 55 ER 263 …. 7.84 Rawack v Spicer [2002] NSWSC 849 …. 2.66, 2.70, 2.75, 2.77 Ray v Greenwell [2009] NSWSC 1197 …. 23.26 — v Moncrieff [1917] NZLR 234 …. 19.27, 20.20 Ray’s Will Trusts, Re [1936] Ch 520 …. 4.54 RB, Re [2015] NSWSC 70 …. 3.17, 18.3 Read v Nicholls (2004) DFC ¶95-307; [2004] VSC 66 …. 17.13

Read (deceased), In the Will and Codicils of [1910] VLR 68 …. 23.26 Redfern, Re (1877) 6 Ch D 133 …. 2.57, 8.16 Redwood Music Ltd v B Feldman & Co Ltd [1979] RPC 1 …. 11.78, 11.79 Reece v Little [2009] WASC 30 …. 12.9, 12.10 Rees, Re (1889) 60 LT 260 …. 14.25 Rees, Re [1950] Ch 204 …. 4.78 Reeves, Re [1928] Ch 351 …. 6.2, 6.6 Reeve’s Trusts, Re (1877) 4 Ch D 841 …. 23.9 Regan v Zoller (SC(WA), Brinsden J, 6 December 1985, unreported) …. 20.42 Reid v Crimp [2004] QSC 304 …. 12.8 Reid, In the Goods of (1868) 19 LT 265 …. 4.66 — v Hubbard [2003] VSC 387 …. 12.58 Reinhard v Bell [2015] NSWSC 818 …. 8.19 Rejouis (deceased), Re [2010] 3 NZLR 422 …. 4.31 Rendell, Re [1901] 1 Ch 230 …. 10.12 Rennie v Massie (1866) LR 1 P & D 118 …. 23.17 Resch’s Will Trusts, Re [1969] 1 AC 514 …. 5.3, 11.35 Revell v Revell [2016] NSWSC 947 …. 15.12, 19.30 Revie v Druitt [2005] NSWSC 902 …. 2.13, 2.39, 2.43 — v — [2005] NSWSC 965 …. 2.43 Reynette-James (deceased), Re [1975] 3 All ER 1037 …. 2.60, 2.61 Rhodes v Rhodes (1882) 7 App Cas 192 …. 2.48, 2.60, 11.29 Riccardi v Riccardi (2013) 11 ASTLR 298; [2013] NSWSC 1655 …. 11.105 Richard v AXA Trustees Ltd [2000] VSC 341 …. 19.5 Richards, In the Will of [1911] VLR 284 …. 5.1 Richards v Richards [2015] VSC 335 …. 13.44, 13.70 Richardson, Re [1920] SALR 24 …. 23.29 Richardson v Rearden [2006] NSWSC 1252 …. 11.30, 11.102, 20.65 Richter (deceased), Re Estate of [2011] SASC 124 …. 14.29 Riddell, Re [1936] WN 252 …. 14.35 Riddle v Riddle (1951) 85 CLR 202 …. 13.12 Rider, In Will of (1901) 27 VLR 238 …. 5.44 Ridge v Public Trustee [2006] NSWSC 400 …. 18.25 — v Rowden (SC(NSW), Santow J, 10 April 1996, unreported) …. 2.13, 2.39 Riggs v Registrar of Births Deaths and Marriages [2010] QSC 481 …. 11.7 Right v Price (1779) 1 Doug 241; 99 ER 157 …. 4.17

Riordan (deceased), Re [1961] VR 271 …. 11.20 Rishton v Cobb (1839) 5 My & Cr 145; 41 ER 326 …. 2.49 Ritchie v Magree (1964) 114 CLR 173 …. 8.31 — v Malcolm [1902] 2 IR 403 …. 11.32 River Wear Commissioners v Adamson (1877) LR 2 App Cas 743 …. 8.37 Rivers v Rivers (2002) 84 SASR 426; [2002] SASC 437 …. 7.48 RKC v JNS [2014] QSC 313 …. 3.18 RL v NSW Trustee and Guardian (2012) 84 NSWLR 263; [2012] NSWCA 39 …. 7.36, 7.37 Robbins v Hume [2015] VSC 128 …. 17.48 Robert De Little, In the Will and Codicil of (1883) 9 VLR (IP & M) 32 …. 10.83 Roberts, In the Goods of [1898] P 149 …. 11.56 Roberts, Re [1902] 2 Ch 834 …. 14.18 Roberts, Re [1919] VLR 125 …. 23.29 Roberts v Fresco [2017] EWHC 283 …. 17.14 — v Moses [2015] NSWSC 1504 …. 20.17 Roberts (deceased), Re Estate of [2012] SASC 138 …. 14.29 Robertson v Broadbent (1883) 8 App Cas 812 …. 7.4 — v Kemble [1867] WN 305 …. 11.55 — v Koska [2010] VSC 134 …. 18.46 — v Pinegrove Memorial Park Ltd (1986) 7 BPR 15,097 …. 12.5 — v Smith (1870) LR 2 P & D 43 …. 1.3 — v — [1998] 4 VR 165 …. 2.33, 2.36, 2.48, 2.53, 2.54 Robertson (deceased), In the Estate of (1963) 107 Sol Jo 318 …. 7.59 Robertson (deceased), Re [1953] VLR 685 …. 14.44 Robertson (deceased), Re [1966] VR 196 …. 8.34 Robinson v Addison (1840) 2 Beav 515; 48 ER 1281 …. 7.25 — v Collins [1975] 1 All ER 321 …. 13.15 — v Jones (No 3) [2015] VSC 508 …. 11.4, 13.30, 13.31 — v Ommanney (1882) 21 Ch D 780 …. 1.36 — v Pett (1734) 3 P Wms 249; 24 ER 1049 …. 10.65, 13.43 — v Robinson (1851) 1 De GM & G 247; 42 ER 547 …. 12.44 — v Tame (CA(NSW), 9 December 1994, unreported) …. 15.22 Roblin v Public Trustee for the Australian Capital Territory (2015) 10 ACTLR 300; [2015] ACTSC 100 …. P.8

Robson v Flight (1865) 4 De G J & S 608; 46 ER 1054 …. P.4 — v Quijarro [2009] NSWCA 365 …. 9.82, 10.23 Rodi (deceaseed), Re [2016] NSWSC 1696 …. 16.27, 18.39 Roebuck v Smoje [2001] WASC 95 …. 23.13 Rogers, Estate of v Rogers [2009] WASC 358 …. 11.95, 11.96, 11.98 Rogers v Goodenough (1862) 2 Sw & Tr 342; 164 ER 1028 …. 6.14 — v Jones (1877) 3 Ch D 688 …. 7.90 Rogers (deceased), Re [2006] 2 All ER 792; [2006] EWHC 753 …. 11.40 Rogowski (deceased), Re (2007) 248 LSJS 274; [2007] SASC 161 …. 10.12, 10.45, 22.4 Rojtarowski v Rojtarowski [2009] VSC 15 …. 9.6 Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1 …. 8.25, 14.3, 14.4 Roman Catholic Trusts Corporation for the Diocese of Melbourne v National Trustees Executors & Agency Co of Australasia Ltd (SC(Vic), Kaye J, 26 June 1981, unreported) …. 13.78 Romano, Re Estate of [2004] NSWSC 775 …. 12.50 Romano v Ladewig [2003] QCA 530 …. 7.5, 7.6 Romascu v Manolache [2011] NSWSC 1362 …. 11.30, 24.6 Rondel v Robinson Estate [2012] WTLR 1067; [2011] ONCA 493 …. 4.4, 8.36 Roos v Karpenkow (1998) 71 SASR 497 …. 2.31 Rose v Bartlett (1631) Cro Car 292; 79 ER 856 …. 8.72 Rosenberg Estate v Black (2001) 110 ACWS 560 …. 24.33 Rosenthal, In the Estate of (1933) 50 WN (NSW) 228 …. 10.7 Rosenthal v Rosenthal (1910) 11 CLR 87 …. 23.42 Ross, In the Estate of [1926] VLR 568 …. 11.60 Ross v Caunters [1980] Ch 297 …. 24.24, 24.29, 24.31 — v Collins [1964] 1 All ER 861 …. 19.4 Rothberg (deceased), Re (1963) 4 FLR 416 …. 11.60 Rowbotham v Dunnett (1878) 8 Ch D 430 …. 4.71 Rowe v Lewis (1907) 26 NZLR 769 …. 17.62 — v Storer [2013] VSC 385 …. 4.45, 4.52 — v — (No 2) [2013] VSC 635 …. 12.1, 23.33 Rowell, In the Estate of (2006) 95 SASR 536; [2006] SASC 313 …. 11.56, 11.57

Rowland v Portus (1906) 6 SR (NSW) 74 …. 23.5 Rowlands (deceased), Re [1973] VR 225 …. 8.6, 8.8, 8.9, 8.52 Rowley, Holmes & Co v Barber [1977] 1 All ER 801 …. 12.22 Rowley v Bouwmeester [2005] TASSC 34 …. 19.16 Rowlings (deceased), Re [2010] VSC 626 …. 11.85, 11.86 Rownson, Re (1883) 29 Ch D 358 …. 12.16, 12.17 Roy v Sturgeon (1986) 11 NSWLR 454 …. 16.10 Royal North Shore Hospital v Crichton-Smith (1938) 60 CLR 798 …. 7.72, 7.73, 7.74, 7.75, 7.76, 7.78 Royal Society for the Prevention of Cruelty to Animals v Sharp [2011] 1 WLR 980; [2010] EWCA Civ 147 …. 8.14 Royce’s Will Trusts, Re [1959] Ch 626 …. 4.53, 4.54 Royse (deceased), Re [1985] Ch 22 …. 7.48, 19.23 Rubin v McNamara [1969] QWN 18 …. 13.31 — v Rubin [1972] Qd R 149 …. 14.35 Rush, Re (1901) 20 NZLR 249 …. 15.9 Rushbrook’s Will Trusts, Re [1948] Ch 421 …. 12.15 Rushton, Re Estate of [2015] ACTSC 342 …. 2.14 Russell, Re [2009] WASC 233 …. 11.23 Russell v NSW Trustee & Guardian [2013] NSWSC 370 …. 16.21 — v Perpetual Trustee Co (Ltd) (1956) 95 CLR 389 …. 8.21, 8.35 — v Quinton [2000] NSWSC 322 …. 18.3, 20.35 — v Russell (1891) 17 VLR 729 …. 12.47 — v Scott (1936) 55 CLR 440 …. 1.9, 1.14 — v White (1895) 16 LR (NSW) Eq 158 …. 7.72, 7.79, 7.80 Russell (deceased), Re Estate of [2016] SASC 56 …. 4.34, 4.36 Russo, Re Will and Estate of [2009] VSC 491 …. 11.102 Rutledge v Sheridan [2010] QSC 257 …. 14.22, 14.23 Rutter v McCusker [2008] NSWSC 1289 …. 11.94, 11.95, 11.99, 11.101 Ruwolt v Drake-Brockman (SC(WA), Ng M, 29 March 1996, unreported) …. 17.11 Ryan, Re [1990] 3 NZLR 91 …. 11.6 Ryan v Davies Bros Ltd (1921) 29 CLR 527 …. 11.71 — v Kazacos (2001) 183 ALR 506; [2001] NSWSC 140 …. 4.34, 4.36, 4.51 — v Petherbridge [1902] St R Qd 193 …. 23.7 — v Public Trustee [2000] 1 NZLR 700 …. 24.6

Ryan (deceased), In the Estate of (1986) 40 SASR 305 …. 4.35 Ryder, In the Goods of (1861) 2 Sw & Tr 127; 164 ER 941 …. 10.2 S S v B (No 2) [2005] 1 Qd R 537; [2004] QCA 449 …. 16.6 S (deceased), In the Estate of [1968] P 302 …. 10.71, 11.38 S (deceased), Re [1996] 1 WLR 235 …. 7.70 Sabelberg (deceased), Will of [1911] VLR 157 …. 23.18 Sabin v Ackerman (2014) 846 NW 2d 835 …. 24.2 Sacks v Gridiger (1990) 22 NSWLR 502 …. 13.46 Saddington v Saddington (1904) 4 SR (NSW) 341 …. 14.16 Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 …. 9.33, 16.6, 16.16, 16.18, 17.57 — v — [2016] NSWCA 62 …. 9.33, 16.6, 16.16, 16.18, 17.57 Sadler v Eggmolesse [2013] QSC 40 …. 3.16 St Augustine’s Churchyard, Droitwich Spa, Re [2016] 1 WLR 3365; [2016] ECC Wor 2 …. 12.5, 12.6 St George v Burnett (1871) 5 SALR 77 …. 12.54 Saker, In the Estate of [1909] P 233 …. 11.43 Sale v Rudys [2002] 2 Qd R 423; [2001] QSC 293 …. 10.23 Saleh v Reichert (1993) 104 DLR (4th) 384 …. 12.10 Saliba v Tarmo [2009] NSWSC 581 …. 1.30 Sallis v Jones [1936] P 43 …. 5.26 Salmi v Sinivuori [2008] QSC 321 …. 13.36, 13.37 Salmon v Osmond [2015] NSWCA 42 …. 19.34, 19.38 Salmon (deceased), Re [1981] Ch 170 …. 17.24, 17.25, 17.26, 17.35, 17.36, 17.43 Salom, Re [1929] SASR 387 …. 13.57 Salomons, Re [1920] 1 Ch 290 …. 10.80, 13.16 Salt, Re [1895] 2 Ch 203 …. 14.18 Salway v Snowden (1888) 14 VLR 669 …. 7.88 Sammut v Manzi [2009] 2 All ER 234; [2008] UKPC 58 …. 8.21 Sampson v Sampson (1945) 70 CLR 576 …. 20.57 Samsley v Barnes (1991) DFC ¶95-100 …. 18.3 Samson, In the Goods of (1873) LR 3 P & D 48 …. 10.13, 11.39 Samson, Re [1906] 2 Ch 584 …. 14.13, 14.16

Sanders, In the Goods of [1900] P 292 …. 22.8 Sanders, Re [1944] SASR 22 …. 1.2, 4.12, 4.15, 5.46 Sanders, Re [2016] VSC 694 …. 4.45, 11.29, 11.32 Sanford v Raikes (1816) 1 Mer 646; 35 ER 808 …. 8.21 Sangal (deceased), Re [1921] VLR 355 …. 7.48, 7.64 Sargeant v National Westminster Bank plc (1991) 61 P & CR 518 …. 12.22 Sargent v ASL Developments Ltd (1974) 131 CLR 634 …. 7.89 Saunders, In the Goods of (1865) LR 1 P & D 16 …. 4.22 Saunders v Pedemont [2012] VSC 574 …. 3.3 — v — (No 2) [2012] VSC 601 …. 23.20 — v Public Trustee (2015) 13 ASTLR 226; [2015] WASCA 203 …. 2.2, 2.3, 2.10, 2.11, 2.12, 23.41 Savage, Re [1918] 2 Ch 146 …. 14.24, 14.25 Savic v Kim [2010] NSWSC 1401 …. 15.10, 15.12, 15.14, 15.22, 17.58, 18.3, 19.1, 19.8, 23.30 Sawbridge v Hill (1871) LR 2 P & D 219 …. 10.23 Sawtell (deceased), In the Goods of (1862) 2 Sw & Tr 448; 164 ER 1070 …. 10.69 Sayer v Sayer [1999] NSWCA 340 …. 18.6 Scale v Rawlins [1892] AC 342 …. 8.4 Scali, Application of [2010] NSWSC 1254 …. 17.46, 17.47, 20.32, 20.34 Scammell v Farmer [2008] WTLR 1261; [2008] EWHC 1100 …. 2.5, 24.6 Scarfe v Matthews [2012] WTLR 1579 …. 7.90 Scarpuzza v Scarpuzza (2011) 4 ASTLR 244; [2011] WASC 65 …. 10.58, 11.36, 24.4 Scattini v Matters [2004] QSC 459 …. 2.14 Sceney, Estate of (2013) 11 ASTLR 1; [2013] NTSC 82 …. 11.9 Schaechtele v Schaechtele [2008] WASC 148 …. 20.33 Schaefer v Schuhmann [1972] AC 572 …. 1.33, 1.37, 1.49, 15.9, 19.44, 19.45 Schaeffer v Schaeffer (1994) 36 NSWLR 315 …. 20.60, 20.62 Schilling, Re [1995] 1 Qd R 696 …. 12.31 Schlesinger v Bowman (2007) 16 Tas R 350; [2007] TASSC 57 …. 4.34, 4.36 Schmidt v Watkins [2002] VSC 273 …. 15.9, 15.21, 16.48, 16.49, 16.50, 16.51, 17.57, 19.5 Schneider, Ex parte (2009) 3 ASTLR 61; [2009] NSWSC 566 …. 14.48, 14.49 Schneider v Sydney Jewish Museum Inc [2008] NSWSC 1331 …. 5.3, 5.5,

22.25 Schobelt v Barber (1966) 60 DLR (2d) 519 …. 7.67 Schoenmakers (No 2), Re [2013] VSC 658 …. 23.9 Schomberg v Taylor [2013] WTLR 1413; [2013] EWHC 2269 …. 2.43 Schott, In the Goods of [1901] P 190 …. 2.58, 2.60 Schrader v Schrader [2013] WTLR 701; [2013] EWHC 466 …. 2.2, 2.42, 2.43 Schwartzkopff, Re Estate of (2006) 94 SASR 465; [2006] SASC 131 …. 4.35, 4.39, 4.52 Scott, Re (1966) 110 Sol J 852 …. 23.16 Scott, Re Estate of (2014) 13 ASTLR 574; [2014] NSWSC 465 …. 3.21 Scott v Cousins (2001) 37 ETR (2d) 113 …. 24.7f2003] QCA 341 — v Scott [2009] NSWSC 567 …. 18.16 Scott (deceased), Estate of (1988) 21 NSWLR 112 …. 13.44, 13.78 Scott (deceased), Re [1975] 2 All ER 1033 …. 7.46 Scott MacRae Investments Pty Ltd v Baylily Ltd [2012] NSWSC 823 …. 20.35 Sculthorpe v Tipper (1871) LR 13 Eq 232 …. 14.27 Seaborn v Marsden (1926) 26 SR (NSW) 485 …. 7.84 Seale-Hayne v Jodrell [1891] AC 304 …. 8.8, 8.9 Searle, Re [1949] Ch 73 …. 17.11 Secretary, Department of Family & Community Services v K [2014] NSWSC 1065 …. 3.2, 3.17, 3.18, 3.20 Sedgwick v Varzonek [2015] NSWSC 1275 …. 16.2 See v Hardman [2002] NSWSC 287 …. 11.98, 11.107 Seelander v Rechner (1884) 18 SALR 82 …. 8.51 Seeley v Back [2005] NSWSC 68 …. 2.14 Seery, Re (1969) 90 WN (Pt 1) (NSW) 400 …. 19.45 Segelman (deceased), Re [1996] Ch 171 …. 2.63, 2.64, 2.65 Selby (deceased), Re [1952] VLR 273 …. 8.60, 8.63 Selby-Bigge (deceased), In the Estate of [1950] 1 All ER 1009 …. 4.19 Sellers v Scrivenger [2010] VSC 320 …. 15.12, 17.78, 18.3 Selwood v Selwood (1920) 125 LT 26 …. 4.28 Sen v Headley [1991] Ch 425 …. 1.19, 1.23, 1.27 Sergi v Sergi [2012] WASC 18 …. 23.36 Serle v Walsh [2006] QSC 377 …. 18.3 Serocold v Hemming (1758) 2 Lee 490; 161 ER 415 …. 6.1 Seton-Smith, Re [1902] 1 Ch 717 …. 8.30

Severs (deceased), In the Will of (1887) 13 VLR 572 …. 2.34 Seymour, Re [1934] VLR 136 …. 11.25, 11.26 Shah v Perpetual Trustee Co (1981) 7 Fam LR 97 …. 19.47, 19.48 Shannon, In the Will of [1977] 1 NSWLR 210 …. 13.43, 13.46, 24.18 Shannon, Re (1935) 35 SR (NSW) 516 …. 17.13, 17.14 Shannon v Baker (1993) 9 WAR 325 …. 18.13 Sharland, Re [2006] 1 Qd R 562 …. 5.49 Sharman, In the Goods of (1869) LR 1 P & D 661 …. 4.56 Sharman, Re Estate of [1999] NSWSC 709 …. 4.35 Sharman’s Will Trusts, Re [1942] 1 Ch 311 …. 10.17 Sharp, Re [1923] St R Qd 102 …. 23.26 Sharpless v McKibbin (2008) DFC ¶95-414; [2007] NSWSC 1498 …. 16.20 Shave, Estate of (2012) 10 ASTLR 430; [2012] NSWSC 1428 …. 13.63, 13.70 Shave v Shave (2011) 5 ASTLR 320; [2011] NSWSC 1356 …. 12.35 Shaw, In the Estate of [1905] P 92 …. 11.36 Shaw, Re [1992] 2 VR 457 …. 11.46 Shaw v Crichton (CA(NSW), 23 August 1995, unreported) …. 2.5, 2.8, 2.11, 2.12 Shaw and Dickens v Marshall (1858) 1 Sw & Tr 129; 164 ER 660 …. 23.19 Shearer v Public Trustee (SC(NSW), Young J, 23 March 1998, unreported) …. 18.32 Shearn, In the Goods of (1880) 43 LT 736 …. 5.46 Sheil v Doneley (1903) 3 SR (NSW) 60 …. 23.39 Shephard (deceased), In the Estate of (1982) 29 SASR 247 …. 5.10 Shephard (deceased), In the Estate of (1982) 30 SASR 1 …. 10.23, 10.69 Shepherd (deceased), In the Will of [2002] QSC 98 …. 10.9 Sheppard, In the Will of [1972] 2 NSWLR 714 …. 13.51, 13.52, 13.72 Shepperd (deceased), Re (1893) 5 QLJ 116 …. 1.7 Sherborne Estate, Re [2005] NSWSC 593 …. 16.32, 16.34, 18.32 Sherborne Estate (No 2), Re (2005) 65 NSWLR 268; [2005] NSWSC 1003 …. 23.30, 23.33, 23.35 Sherlock v Guest [1999] VSC 431 …. 18.37 Sherringham, In the Will of (1901) 1 SR (NSW) 48 …. 13.62 Sherrington v Sherrington [2005] WTLR 587; [2005] EWCA Civ 326 …. 4.20 Sherwood, Re (1840) 3 Beav 338; 49 ER 133 …. 13.48 Sheslow v Kostin (1997) 11 BPR 21,043 …. 1.42

Shirley, Re (1965) 49 DLR (2d) 474 …. 1.12 Shore v Wilson (1842) 9 Cl & Fin 355; 8 ER 450 …. 8.15 Shorey v Hansford [2003] NSWSC 889 …. 18.12, 18.33 Short (deceased), In the Will and Codicil of (1885) 11 VLR 634 …. 13.54 Shrimpton (deceased), Re [1962] NZLR 1000 …. 17.13 Shroder v Cozens (SC(Vic), Teague J, 23 February 1990, unreported) …. 15.14 Sibley v Cook (1747) Atk 572; 26 ER 1130 …. 7.15 Sidney v Sidney (1873) LR 17 Eq 65 …. 14.20 Sigg (deceased), Re Estate of [2009] VSC 47 …. 9.83, 16.17 Sigsworth, Re [1935] Ch 89 …. 7.48, 7.64 Sikes, Re [1927] 1 Ch 364 …. 7.30, 8.68 Silvester v Tarabini (SC(WA), Anderson J, 13 February 1996, unreported) …. 2.13 Sim v Public Trustee [2005] NSWSC 751 …. 18.31, 18.35, 19.17 Simkin, In the Estate of [1950] VLR 341 …. 5.12 Simmons (deceased), In the Estate of (1990) 56 SASR 1 …. 7.43, 7.46, 9.13, 9.15, 9.48 Simon v Byford [2013] WTLR 1615; [2013] EWHC 1490 …. 2.14 — v — [2014] WTLR 1097; [2014] EWCA Civ 280 …. 2.3, 2.6, 2.14, 2.27 Simonetto v Dick (2014) 10 ASTLR 231; [2014] NTCA 4 …. 18.26 — v — (No 2) (2014) 10 ASTLR 225; [2014] NTSC 6 …. 23.29 Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 …. 15.22, 16.24, 16.31, 16.32, 17.35, 17.75 Simpson, Re (1906) 7 SR (NSW) 78 …. 7.84 Simpson, Re (1977) 121 SJ 224 …. 24.6 Simpson v Cunning (2011) 4 ASTLR 584; [2011] VSC 466 …. 7.35, 7.41 — v Gutteridge (1816) 1 Madd 609; 56 ER 224 …. 11.90 Simson (deceased), Re [1950] Ch 38 …. 17.48 Singer v Berghouse (1994) 181 CLR 201 …. 17.6, 17.57, 17.58, 17.65, 17.81, 18.5, 19.42, 20.54 — v — (CA(NSW), Kirby P, Sheller and Cripps JJA, 23 July 1992, unreported) …. 17.6 — v United Israel Appeal Refugee Relief Fund [2013] NSWSC 1035 …. 14.3 Singh v Singh [2015] NSWSC 1457 …. 17.7 Single v Federal Commissioner of Taxation (1964) 110 CLR 177 …. 10.54 Singleton v Tomlison (1878) 3 App Cas 404 …. 4.62, 4.64

Sinnott, Re [1948] VLR 279 …. 18.23, 18.27 Sir McLean (deceased), Re [1934] NZLR 1074 …. 13.57 Sister Albinus, Re [1924] NZLR 880 …. 4.6 Sita v Sita [2005] NSWSC 461 …. 18.15, 18.17 Sitch (deceased), Re the Will of [2005] VSC 308 …. 18.3 Sitch (deceased), Re Will of (No 2) [2005] VSC 383 …. 23.26, 23.33 Sitwell v Bernard (1801) 6 Ves 520; 31 ER 1174 …. 14.27, 14.38 Skaftouros v Dimos [2002] VSC 198 …. 11.104 Skelton, Re [1930] VLR 323 …. 4.12 Skillen, Re [1916] 1 Ch 518 …. 8.12 Skinner (deceased), Re [1958] 3 All ER 273 …. 12.26 Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 …. 6.21, 15.12, 15.24, 16.35 Slack-Smith v Slack-Smith [2010] NSWSC 625 …. 18.26, 18.28, 19.37 Slater, Re [1907] 1 Ch 665 …. 7.23, 7.26, 7.27, 7.28 Slattery, In the Estate of (1909) 9 SR (NSW) 577 …. 10.12, 10.23 Slaughter v May (1705) 1 Salk 42; 91 ER 42 …. 10.12 Slavinskyi (deceased), In the Estate of (1989) 53 SASR 221 …. 4.5, 4.36 Sleight v Lawson (1857) 3 K & J 292; 69 ER 1119 …. 12.47 Sleiman v Alwan [2009] NSWSC 484 …. 11.99 Smallacombe v Elder’s Trustee & Executor Co Ltd [1963] WAR 3 …. 1.16 Smalley, Re [1929] 2 Ch 112 …. 8.11, 8.41, 8.58 Smart, In the Goods of [1902] P 238 …. 4.65, 4.66 Smeaton v Pattison [2003] QCA 341 …. 24.40 Smethurst v Tomlin and Bankes (1861) 2 Sw & Tr 143; 164 ER 947 …. 10.71 Smidmore v Smidmore (1905) 3 CLR 344 …. 8.18 Smilek v Public Trustee [2008] NSWCA 190 …. 18.48, 18.49 Smith, In the Goods of (1889) LR 2 PD 2 …. 4.56 Smith, Re (1887) 35 Ch D 558 …. 8.51 Smith, Re (1889) 42 Ch D 302 …. 12.1 Smith, Re (1890) 45 Ch D 632 …. 6.1 Smith, Re [1896] 1 Ch 171 …. 13.22 Smith, Re [1904] 1 Ch 139 …. 13.2 Smith, Re (1916) 16 SR (NSW) 422 …. 13.73 Smith, Re [1920] SALR 381 …. 13.52 Smith, Re [1939] VLR 213 …. 11.35

Smith, Re [1948] Ch 49 …. 8.16 Smith, Re (1975) 6 ALR 123 …. 11.11 Smith, Re Estate of [2004] NTSC 15 …. 1.5 Smith v Everett (1859) 29 LJ Ch 236 …. 11.90 — v Hayler [1999] NSWSC 1282 …. 2.34 — v Layh (1953) 90 CLR 102 …. 10.43 — v Mackrill [1978] Qd R 403 …. 11.55 — v Mather [1948] 2 KB 212 …. 11.75 — v Milles (1786) 1 Term Rep 475; 99 ER 1205 …. 11.79 — v O’Neill [2014] NSWSC 1119 …. 1.7, 4.52, 24.22 — v Public Trustee of the Australian Capital Territory (2012) 6 ACTLR 126; [2012] ACTSC 4 …. 17.29 — v Seaman [2015] WASC 420 …. 14.24 — v Smith (1985) 80 FLR 444 …. 4.20 — v — (1986) 161 CLR 217 …. 18.17 — v — (No 2) [2011] NSWSC 1105 …. 23.22 — v Springford [2009] WTLR 705; [2007] EWHC 3446 …. 23.18 — v Tamworth City Council (1997) 41 NSWLR 680 …. 12.5, 12.7, 12.9 — v Tebbitt (1876) LR 1 P & D 398 …. 2.12 — v Woodward (SC(NSW), Macready M, 9 September 1994, unreported) …. 20.71 Smith (deceased), In the Estate of (1972) 2 SASR 477 …. 10.25, 10.68 Smith (deceased), In the Will of [1916] VLR 540 …. 7.30, 8.68 Smith (deceased), Re [1917] SALR 1 …. 14.27, 14.36 Smith (deceased), Re [1918] SALR 1 …. 14.36, 14.37 Smith (deceased), Re [1956] NZLR 841 …. 8.30 Smith (deceased), Re [1978] VR 596 …. 5.7, 11.4, 11.34 Smith (deceased), Re [2001] 3 All ER 552 …. 7.45 Snaith, Re [1894] WN 115 …. 14.36 Sneesby v Thorne (1855) 25 LT (OS) 125 …. 11.91 Snowden (deceased), Re [1979] Ch 528 …. 4.70, 4.78 Soar v Dolman (1842) 3 Curt 121; 163 ER 675 …. 5.49 Sopru (deceased), Re Estate of (1992) 165 LSJS 133 …. 11.60, 14.29 Sorrell (deceased), Re [2015] SASC 68 …. 5.21, 10.69 Soukup, In the Matter of the Estate of (1997) 97 A Crim R 103 …. 7.54, 7.64, 9.14

South Australia v Smith (2014) 119 SASR 247; [2014] SASC 64 …. 10.30, 12.10 South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307 …. 23.9 Southerden, In the Estate of [1925] P 177 …. 5.16, 5.21, 5.22 Southwell v Martin (1901) 1 SR (NSW) Eq 32 …. 13.23, 13.24 Spark (deceased), In the Estate of [1941] P 115 …. 4.28 Sparrow (deceased), Re [1967] VR 739 …. 7.82, 7.84, 7.88 Spata v Tumino [2017] NSWSC 111 …. 16.25 Spears (deceased), In the Will of [1959] VR 430 …. 4.62 Spedding (deceased), Re [1966] NZLR 447 …. 13.46 Speight, Re (1883) 22 Ch D 727 …. 12.2, 12.28, 12.29 Speight v Gaunt (1883) 9 App Cas 1 …. 12.2, 12.28, 12.29 Speke, In the Estate of (1913) 109 LT 719 …. 12.1 Spellson v George (1992) 26 NSWLR 666 …. 12.56 Spence, Re [1949] WN 237 …. 4.78 Spencer (deceased), Re [2015] 2 Qd R 435; [2014] QSC 276 …. 2.20, 4.39 Spencer v Burton [2016] 2 Qd R 215; [2015] QCA 104 …. 16.10 — v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 …. 17.19 Spicer (deceased), In the Goods of [1949] P 441 …. 4.28 Spiers v English [1907] P 122 …. 23.5 Spinks, Re Estate of (SC(NSW), Needham J, 22 August 1990, unreported) …. 2.70 Spoehr v Health Services Charitable Gifts Board (2014) 121 SASR 174; [2014] SASC 171 …. 11.4 Spooner, Application of (SC(NSW), Hodgson J, 28 July 1995, unreported) …. 2.75 Spratt, In the Goods of [1897] P 28 …. 2.23, 2.24 Spread v Morgan (1865) 11 HLC 588; 11 ER 1461 …. 7.90 Sproule v Sproule (2009) 2 ASTLR 80; [2009] NSWSC 152 …. 12.58 Spurling v Broadhurst [2012] WTLR 1813; [2012] EWHC 2883 …. 8.21 Spurway v Glynn (1804) 9 Ves 483; 32 ER 689 …. 14.32 SSSL Realisations (2002) Ltd (in liq), Re [2006] Ch 610; [2006] EWCA Civ 7 …. 14.24 Stable (deceased), Re [1919] P 7 …. 2.22, 4.28

Stacey v Stacey [2010] WASC 85 …. 10.43, 11.26 Stackpoole v Howell (1803) 13 Ves 417; 33 ER 350 …. 13.66 Staib v Powell [1979] Qd R 151 …. 1.37 Stainton v Carron Co (1854) 18 Beav 146; 52 ER 58 …. 10.68, 10.70 Stanley v Stanley [2000] NSWSC 1133 …. 11.94, 11.98, 11.102 — v State Trustees Ltd [2012] VSC 24 …. 17.27 Stanley (deceased), In the Estate of [1965] SASR 159 …. 7.32 State Trustees Ltd v Do [2011] VSC 45 …. 3.15, 3.17 — v Hayden (2002) 4 VR 229; [2002] VSC 98 …. 3.2, 3.11 — v Whitehead [2012] VSCA 274 …. 19.33, 19.39 Staub v Staub Estate (2003) 226 DLR (4th) 327 …. 12.22 Stead, Re [1900] 1 Ch 237 …. 4.71 Stedham, In the Goods of (1881) LR 6 PD 205 …. 6.19 Steel v Ifrah (2013) 38 VR 186; [2013] VSC 199 …. 5.26, 5.30, 5.31 Steele, In the Goods of (1868) LR 1 P & D 575 …. 6.15 Steele, In the Will of (1915) 15 SR (NSW) 247 …. 13.67, 13.68 Steiner v Strang [2012] NSWSC 919 …. 12.43 Stephens v Perpetual Trustee Company Ltd (2009) 76 NSWLR 15; [2009] NSWSC 1078 …. 16.26, 16.27, 17.12 Stephens v Stephens [2007] QSC 16 …. 7.11 — v Taprell (1840) 2 Curt 458; 163 ER 473 …. 5.10 Stern v Sekers [2010] NSWSC 59 …. 18.10, 19.13, 19.19, 20.45, 20.60 Stevens, Re [1898] 1 Ch 162 …. 10.15, 12.44, 12.47 Stevens v Baxter [2009] VSC 257 …. 7.63 — v King [1904] 2 Ch 30 …. 7.16 Stewart, Re (1869) LR 1 P & D 727 …. 11.58 Stewart, Re [1908] 2 Ch 251 …. 14.21, 14.22 Stewart, Re [1964] Tas SR 309 …. 13.56, 13.60 Stewart, Re [2003] 1 NZLR 809 …. 10.44 Stewart, Re [2004] 1 NZLR 354 …. 10.44, 17.43 Stewart v Stewart [2015] QSC 238 …. 18.47, 20.25 Stiles, In the Goods of [1898] P 12 …. 10.65 Stirling (deceased), Re [2009] 3 NZLR 693 …. 5.31 Stirling-Maxwell v Cartwright (1879) 11 Ch D 552 …. 22.9 Stojanovski v Stojovski [2016] NSWSC 976 …. 20.66 Stokell, Re (1913) 9 Tas LR 7 …. 7.23

Stokes, Re [1928] 1 Ch 716 …. 14.36 Stokes v Churchill (1994) NSW ConvR ¶55-694 …. 11.91 Stollery v Stollery [2016] NSWSC 54 …. 17.7 Stone, Re [1989] 1 Qd R 351 …. 7.48, 7.58, 7.67 Stone, Re Estate of [2003] VSC 298 …. 13.50, 13.51 Stone v Hoskins [1905] P 194 …. 1.46 — v Registrar of Titles [2012] WASC 21 …. 14.21 — v Stone [2016] NSWSC 605 …. 17.42, 17.77, 17.79, 18.34, 20.78 Storch (deceased), Re Estate of [2013] SASC 129 …. 11.101 Storey, In the Estate of (1902) 28 VLR 336 …. 11.60 Stott v Cook (1960) 33 ALJR 447 …. 15.12, 15.14, 18.23, 18.29 Straede v Eastwood [2003] NSWSC 280 …. 7.68 Stratford-upon-Avon Corporation v Parker [1914] 2 KB 562 …. 10.19 Stratton (deceased), Will of [1981] WAR 58 …. 13.57 Strickland v Symons (1883) 22 Ch D 666 …. 13.22 Strickland (deceased), Re [2004] WASC 261 …. 4.38 Strom, Re [1966] 1 NSWR 592 …. 20.52 Strong v Bird (1874) LR 18 Eq 315 …. 1.22, 14.20, 14.21, 14.22, 14.23 Strong (deceased), In the Estate of [1915] P 211 …. 4.19 Stuart (deceased), Re Estate of (2009) 106 SASR 39; [2009] SASC 399 …. 11.95 — v Clemons [1951] Tas SR 23 …. 4.64 — v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15 …. 2.14 Stuckey, Re (2014) 11 ASTLR 43; [2014] VSC 221 …. 4.34 Studd v Cook (1883) 8 App Cas 577 …. 22.22 Studdert v Wildash (SC(NSW), Macready M, 5 October 1995, unreported) …. 19.49 Sturits v Nicholls [2011] NSWSC 599 …. 20.4 Styles v Guy (1849) 1 Mac & G 422; 41 ER 1328 …. 12.53, 12.55 Suarez, In the Goods of [1897] P 82 …. 11.48 Sue, Re Estate of [2016] NSWSC 721 …. 11.29 Sugden v Lord St Leonards (1876) LR 1 PD 154 …. 11.21, 11.23 Sullivan, Re [1930] 1 Ch 84 …. 7.42 Summerville v Walsh (CA(NSW), Mason P, Sheller and Beazley JJA, 26 February 1998, unreported) …. 24.33 Sutherland, Re [1909] VLR 223 …. 8.46

Sutton v Wahlen [2000] NSWSC 1063 …. 11.92 Swain, Re [2008] NSWSC 1343 …. 2.77 Swale, Re [1960] SASR 391 …. 10.68 Swan, In the Estate of (1881) 7 VLR (IP & M) 49 …. 13.54 Swanson v Emmerton [1909] VLR 387 …. 12.28 Sykes, In the Goods of (1873) LR 3 P & D 26 …. 5.44 Sylvester v Sylvester [2010] QSC 331 …. 15.22, 17.20 Symm’s Will Trusts, Re [1936] 3 All ER 236 …. 13.2 Synge v Synge [1894] 1 QB 466 …. 1.33 Szlazko v Travini [2004] NSWSC 610 …. 17.46, 23.22 Szmulewicz v Recht [2011] VSC 368 …. 24.17 Szypica v O’Beirne [2013] NSWSC 297 …. 17.26 T Tagliaferri v Tagliaferri [2013] WASC 321 …. 9.57 Tait, Re [1957] VR 405 …. 5.4 Takamore v Clarke [2012] 1 NZLR 573; [2011] NZCA 587 …. 12.5, 12.6, 12.7 — v — [2013] 2 NZLR 733; [2012] NZSC 116 …. 12.5, 12.6, 12.7, 12.9 Tamburin, Estate of (2014) 119 SASR 143; [2014] SASC 58 …. 22.9 Tamplin, In the Goods of [1894] P 39 …. 22.4 Tankard, Re [1942] 1 Ch 69 …. 12.1, 14.27 Tanner v Public Trustee [1973] 1 NZLR 68 …. 2.28, 2.30, 2.31, 2.32, 2.38 Tantau v MacFarlane [2010] NSWSC 224 …. 7.43 Tapp, Re (SC(NT), Kearney J, 5 December 1996, unreported) …. 12.30 Tapp v Public Trustee (No 2) [2009] TASSC 62 …. 23.28 Tarabini v Sylvester (FC(WA), 6 December 1996, unreported) …. 23.16 Tarca (deceased), Re (1981) 29 SASR 152 …. 7.32 Tasmanian Perpetual Trustees Ltd v Colbeck [2007] TASSC 86 …. 2.20 Tataryn v Tataryn Estate [1994] 2 SCR 807 …. 15.6, 18.1, 19.47 Tatham v Huxtable (1950) 81 CLR 639 …. 2.78, 2.81, 8.20 Tausz v Elton [1974] 2 NSWLR 163 …. 19.35 Tavendale v Hargreaves [2013] NZHC 2374 …. 2.14 Tavra, Estate of Re (2011) 4 ASTLR 506; [2011] VSC 359 …. 20.44 Tawil v Public Trustee (NSW) (2009) 2 ASTLR 317; [2009] NSWSC 256 …. 1.25, 1.28 Taylor, Re [1894] 1 Ch 671 …. 14.24, 14.25

Taylor, Re [1923] 1 Ch 99 …. 8.12, 8.14 Taylor, Will of (1867) 1 SALR 13 …. 13.57 Taylor v Farrugia [2009] NSWSC 801 …. 17.24, 17.29, 17.30, 17.32, 17.42, 18.26, 18.28, 18.32, 19.47, 22.37 — v Federal Commissioner of Taxation (1970) 119 CLR 444 …. 10.52, 10.53 — v Taylor (1870) LR 10 Eq 477 …. 14.45 — v Taylor (1875) LR 20 Eq 155 …. 7.79 Taylor (deceased), Re [1949] VLR 201 …. 5.27 Tchadovitch v Tchadovitch (2010) 79 NSWLR 491; [2010] NSWCA 316 …. 20.45, 23.22 Te Huango, Re [1993] 3 NZLR 77 …. 8.52 Tebbs (deceased), Re [1976] 2 All ER 858 …. 12.47, 12.48 Teddy, Re [1940] SASR 354 …. 2.41 Telfer v Telfer (No 2) [2013] NSWSC 823 …. 10.69 Temple v Cowell [2011] SASC 20 …. 19.18 Tennant v Cross (1886) 12 PD 4 …. 23.19 Terlier, Re [1959] QWN 5 …. 17.37 Testator’s Family Maintenance Acts, Re (1916) 12 Tas LR 11 …. 23.29 Thacker, In the Goods of [1900] P 15 …. 10.67 Theakston, In the Estate of (1956) 74 WN (NSW) 113 …. 4.6 Thiel (deceased), In the Estate of [2017] SASC 1 …. 11.84 Thirkell v Cox [2010] NSWSC 99 …. 16.32, 16.34 Thom v Public Trustee (SC(NSW), McLaughlin M, 2 April 1992, unreported) …. 19.47 Thomas v Jackson [2002] NSWSC 660 …. 20.28 — v Jones [1928] P 162 …. 2.31 — v Nash (2010) 107 SASR 309; [2010] SASC 153 …. 2.16, 2.39, 2.40 — v — (No 2) (2010) 107 SASR 338; [2010] SASC 171 …. 23.11 Thompson, In the Will of [1910] VLR 251 …. 12.25, 14.45 Thompson v Bella-Lewis [1997] 1 Qd R 429 …. 2.32, 2.53 — v Foy [2010] 1 P & CR 16; [2009] EWHC 1076 …. 2.40 — v MacDonald [2013] VSC 150 …. 19.4 — v Public Trustee of New South Wales [2010] NSWSC 1137 …. 16.15, 16.16, 17.24, 17.29, 17.37, 17.39, 17.42 Thomson, In the Estate of [2015] QSC 29 …. 7.50

Thomson, Re [1930] 1 Ch 203 …. 12.22 Thomson, Re [2015] VSC 370 …. 11.19 Thomson v Down [2012] QSC 171 …. 8.51 — v Harding (1853) 2 El & Bl 630; 118 ER 904 …. 10.19 Thorley, Re [1891] 2 Ch 613 …. 13.66 Thornton, In the Goods of (1826) 3 Add 273; 162 ER 479 …. 10.66 Thorp and the Real Property Act, Re [1962] NSWR 889 …. 7.48, 7.67 Thorpe v Bestwick (1881) 6 QBD 311 …. 4.54 Thurlow (deceased), Re [1972] Ch 379 …. 8.50 Thurston, Re Estate of [2001] NSWSC 144 …. 10.65 Thynne v Earl of Glengall (1848) 2 HLC 131; 9 ER 1042 …. 7.78, 7.80 Thyssen v Pottenger [2003] NSWSC 787 …. 17.7, 18.15 Tiernan (deceased), In the Goods of [1942] IR 572 …. 4.11 Tiller (deceased), Re [1963] SASR 117 …. 17.17 Tillott, Re [1892] 1 Ch 86 …. 12.31 Timbury v Coffee (1941) 66 CLR 277 …. 2.5, 2.13 Timmis, Re [1902] 1 Ch 176 …. 10.46, 12.1 Tinkler, Re [1990] 1 NZLR 621 …. 10.13 Tipper v Moore (1911) 13 CLR 248 …. 2.12 Tito v Waddell (No 2) [1977] Ch 106 …. 12.22 Tkaczuk (deceased), In Estate of (2004) 90 SASR 515; [2004] SASC 413 …. 8.24, 9.4 TLB, Re Estate of (2005) 94 SASR 450; [2005] SASC 459 …. 4.30 Tobin v Ezekiel [2009] NSWSC 1313 …. 10.43 — v — (2012) 83 NSWLR 757; [2012] NSWCA 285 …. 2.17, 2.46 Todorovic v Waller (1981) 150 CLR 402 …. 20.45 Tomkinson v Hersey (1983) 34 SASR 181 …. 11.50 Tompson v Browne (1835) 3 My & K 32; 40 ER 13 …. 1.9 Tong, Re [1910] VLR 110 …. 13.30 Tong, Re [1931] 1 Ch 202 …. 14.3, 14.4 Tonkin v Gunn (1988) Aust Torts Reports ¶80-219 …. 11.80 Tonkiss v Graham [2002] NSWSC 891 …. 4.59 Toole, Re [1913] 2 IR 188 …. 10.69 Topliss (deceased), Re (1914) 17 GLR 285 …. 11.60 Torr, Re Estate of (2005) 91 SASR 17; [2005] SASC 49 …. 4.36, 4.37 Tourton v Flower (1735) 3 P Wms 369; 24 ER 1105 …. 11.4

Townley, Re [1922] 1 Ch 155 …. 14.18 Townley, Re [1982] 2 NZLR 87 …. 1.38 Towns v Wentworth (1858) 11 Moo PC 526; 14 ER 794 …. 8.5, 8.18, 8.20 Townsend v Moore [1905] P 66 …. 5.6, 11.19 Townson v Tickell (1819) 3 B & Ald 31; 106 ER 575 …. 7.42 Transfer of Land Act 1890, In the Matter of the [1911] VLR 197 …. 12.1 Trapani v Ciocca (No 2) [2013] VSC 510 …. 23.26, 23.28 Tratt (deceased), Re [1980] VR 657 …. 11.66 Treacey v Edwards (2000) 49 NSWLR 739; [2000] NSWSC 846 …. 4.36 Tredgold, Re [1943] Ch 69 …. 6.2 Tredwell, Re [1891] 2 Ch 640 …. 7.60 Tregear (deceased), Re [1948] SASR 248 …. 17.29 Trenaman, Re [1962] SASR 95 …. 11.84 Trethewey, Re (2002) 4 VR 406; [2002] VSC 83 …. 4.6, 4.36 Trickey v Davies (1994) 34 NSWLR 539 …. 6.20 Trimmer v Lax (SC(NSW), Hodgson J, 9 May 1997, unreported) …. 2.66, 2.70 Triplett v Public Trustee [2009] WASC 64 …. 17.26, 17.38 Tristram, Re Application of [2012] NSWSC 657 …. 4.36 Troja v Troja (1994) 33 NSWLR 269 …. 7.49, 7.52, 7.53, 7.54, 7.55, 7.58 — v — (1994) 35 NSWLR 182 …. 7.48, 19.23 — v — (SC(NSW), Waddell CJ in Eq, 15 February 1993, unreported) …. 7.58 Trotter, Re [1899] 1 Ch 764 …. 4.54 Trundle (deceased), Re [1960] 1 WLR 1388 …. 8.12 Truro, In the Goods of (1866) LR 1 P & D 201 …. 4.65, 6.8 Trust Co of Australia v Perpetual Trustees WA (1997) 42 NSWLR 237 …. 24.10 Trust Company of Australia Ltd v Daulizio [2003] VSC 358 …. 2.30 — v — (No 2) [2003] VSC 381 …. 23.14 — v Krannin [2007] 1 Qd R 188; [2006] QSC 280 …. 7.11 Trustee for the Salvation Army (NSW) Property Trust v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136 …. 2.39, 2.48 Trustees Executors and Agency Co Ltd v Sargood (1904) 26 ALT 51 …. 6.6, 6.7 — v Scott (1898) 24 VLR 552 …. 7.23 TS (by his tutor PS) v Malouf [2010] NSWSC 630 …. 11.101 Tsagouris v Bellairs (2010) 5 ASTLR 403; [2010] SASC 147 …. 10.8, 11.30,

11.32 Tsakirakis v Hatzidimitriou [2007] NSWSC 400 …. 9.82 Tsaknis v Lilburne [2010] WASC 152 …. 10.68, 11.36, 11.107, 13.36, 13.38 Tschirn v Australian Executor Trustees Ltd [2016] SASC 149 …. 12.11 Tsecouras v Price [2006] NSWSC 701 …. 16.21 Tsivinsky v Tsivinsky (CA(NSW), Kirby P, Mahoney and Priestley JJA, 5 December 1991, unreported) …. 16.31, 16.32 Tucker, Re (1920) 21 SR (NSW) 175 …. 7.48, 7.64 Tucker v Tucker [2012] NSWSC 1302 …. 18.2 Tucker (deceased), In the Estate of [1962] SASR 99 …. 24.5 Tuohey v Tuohey [2002] VSC 180 …. 14.45 Turner, Re [1923] VLR 189 …. 11.104 Turnley v Swaab [1999] NSWSC 594 …. 17.34 Tweddle v Atkinson (1861) 1 B & S 393; 121 ER 762 …. 1.40 Twist v Tye [1902] P 92 …. 23.5, 23.19 Tyrrell v Painton [1894] P 151 …. 2.28, 2.29, 2.30, 2.31 Tyson Re (1906) 7 SR (NSW) 91 …. 14.32, 14.38 U Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 …. 20.54 — v Sheppard [2010] QCA 76 …. 17.46 — v Underwood (2009) 4 ASTLR 150; [2009] QSC 107 …. 23.28 Unger v Sanchez [2009] VSC 541 …. 15.14, 15.19, 15.20, 15.21, 16.47, 16.49, 16.51, 17.57, 17.62, 17.71, 17.72, 18.52, 19.10 Union Bank of Australia Ltd v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492 …. 1.5, 11.68, 11.69, 11.89, 11.90 Union Trustee Co of Australia Ltd v Church of England Property Trust, Diocese of Sydney (1946) 46 SR (NSW) 298 …. 7.60 Uniting Church of Australia Property Trust (NSW) v Millane [2002] NSWSC 1070 …. 11.99 University College of North Wales v Taylor [1908] P 140 …. 4.66 University Hospital Lewinsham NHS Trust v Hamuth [2007] WTLR 309; [2006] EWHC 1609 …. 12.5, 12.6 Unsworth (deceased), Re (1974) 8 SASR 312 …. 4.20 Upton v Downie [2007] NSWSC 1095 …. 11.100 Urruela, In the Goods of (1869) LR 1 P & D 598 …. 10.13

V Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319 …. 10.41, 13.22, 13.25, 13.40 Vagg v McPhee [2011] NSWSC 1584 …. 24.9, 24.34 — v — (2013) 85 NSWLR 154; [2013] NSWCA 29 …. 24.34 Valbe v Irlicht [2001] VSC 53 …. 19.5 Valentini v Valentini [2014] VSC 91 …. 19.16 Vallee v Birchwood [2014] Ch 271; [2013] EWHC 1449 …. 1.18, 1.19, 1.21, 1.23 Valpy, Re [1906] 1 Ch 531 …. 14.9 Van den Berg, Re the Estate of [1999] ACTSC 82 …. 11.25 Van der Meulen v Van der Meulen [2014] 2 Qd R 278; [2014] QSC 33 …. 3.17, 3.20 Vardon’s Trusts, Re (1885) 31 Ch D 275 …. 7.91 Varley (deceased), Re Estate of (2007) 251 LSJS 461; [2007] SASC 420 …. 2.70, 11.38 Vasiljev v Public Trustee [1974] 2 NSWLR 497 …. 17.45 Vaughan v Clerk (1902) 87 LT 144 …. 2.57 — v Hoskovich [2010] NSWSC 706 …. 9.82 — v Marquis of Headfort (1840) 10 Sim 639; 59 ER 764 …. 2.2 Vauk (deceased), In the Estate of (1986) 41 SASR 242 …. 11.32 Vaux, Re [1939] Ch 465 …. 7.84 Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 …. 2.10, 2.17, 2.27, 2.28, 2.34, 2.48, 24.6 Vegetarian Society of the United Kingdom Ltd v Scott [2014] WTLR 525; [2013] EWHC 4097 …. 2.3, 2.5, 2.10 Vegners v Federal Commissioner of Taxation (1989) 90 ALR 547 …. 7.42 Velasco v Coney [1934] P 143 …. 22.26 Verduci v Golotta [2010] NSWSC 506 …. 24.21 Vernon v Watson [2002] NSWSC 600 …. 2.30, 2.32 Verzijden, Estate of [2013] NSWSC 371 …. 4.38 Vescio v Bannister (2010) 3 ASTLR 619; [2010] NSWSC 1274 …. 2.65 Vickers v Pickering [2016] QDC 58 …. 17.49, 17.53, 20.59 Vickery, Re [1931] 1 Ch 572 …. 12.54 Victorian Legal Services Commissioner v Rhoden [2016] VSC 67 …. 24.18 Viertel, Re [1997] 1 Qd R 110 …. 7.35, 7.36, 7.37

Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 …. 17.58, 17.62, 17.63, 17.65, 17.66, 17.67, 17.68, 17.71, 17.76, 17.77, 18.31, 18.35, 19.7, 19.10, 20.54 Vincent, Re [1909] 1 Ch 810 …. 23.38 Viner v Francis (1789) 2 Cox 190; 30 ER 88 …. 8.63 Vines, In the Estate of [1910] P 147 …. 2.23, 2.25 VMH v SEL [2016] QSC 148 …. 3.18 Vogdanos v Kriaris [2012] VSC 248 …. 17.29 Vogele, Re [2009] 1 Qd R 291; [2007] QSC 404 …. 4.48 Voges v Monaghan (1954) 94 CLR 231 …. 4.70, 4.71, 4.72 Vukic v Grbin [2006] NSWSC 41 …. 19.33 Vukotic v Vukotic (2013) 12 ASTLR 238; [2013] VSC 718 …. 2.14, 2.27 Vyner, Re (SC(Qld), Shepherdson J, 24 August 1999, unreported) …. 7.49 W W, DJ, Re [2015] SASC 45 …. 3.3, 3.9 Waddingham v Burke [2015] WASC 65 …. 18.4, 20.15 Wade v Harding (1987) 11 NSWLR 551 …. 20.60 Wagg, In the Will of (1933) 50 WN (Pt 1) (NSW) 226 …. 4.16 Wagner v Wagner Estate (1991) 85 DLR (4th) 699 …. 18.17 Wagstaff v Wagstaff (1869) LR 8 Eq 229 …. 8.69 Wain v Wain [2010] 2 Qd R 375; [2009] QSC 320 …. 5.28 Waite’s Settlement Trusts, Re [1958] Ch 100 …. 22.28, 22.32 Waldman v Melville (City) (1990) 65 DLR (4th) 154 …. 12.5 Walford v Walford [1912] AC 658 …. 7.7, 14.34 Walker, In the Will of (1943) 43 SR (NSW) 305 …. 14.61 Walker, Re (1901) 1 SR (NSW) Eq 237 …. 13.23 Walker v Badmin [2015] WTLR 493; [2014] EWHC 71 …. 2.5 — v D’Alessandro [2010] VSC 15 …. 13.48, 24.19 — v Geo H Medlicott & Son (a firm) [1999] 1 All ER 685 …. 24.32 — v Landenberger (1937) 37 SR (NSW) 201 …. 8.9 — v McDermott [1931] SCR 94 …. 17.62 — v Symonds (1818) 3 Swans 1; 36 ER 751 …. 11.90 — v Walker [2004] VSC 94 …. 17.30, 17.36, 17.37 — v — [2005] NSWSC 1024 …. 19.9 — v — (SC(NSW), Young J, 17 May 1996, unreported) …. 19.16, 19.19

Walker (a lunatic so found), Re [1905] 1 Ch 160 …. 1.2 Walker (deceased), Re [1967] VR 890 …. 17.37 Wall v Crane [2009] SASC 382 …. 18.37, 18.38, 18.39 Wallace, Re (1908) 25 WN (NSW) 161 …. 11.8 Wallace v Love (1922) 31 CLR 156 …. 13.15 Wallen, Re [1926] NZLR 729 …. 10.13 Walsh, In the Will of (deceased) (1892) 18 VLR 739 …. 2.31 Walsh, Re (1911) 30 NZLR 1166 …. 4.75 Walton, Re [1936] SASR 15 …. 7.8 Wang v D’Ambrosio [1999] NSWSC 227 …. 23.28 Wankford v Wankford (1699) 1 Salk 229; 91 ER 265 …. 11.78 Ward, Re [1966] QWN 15 …. 4.22 Ward, Re Estate of (2006) 244 LSJS 326; [2006] SASC 161 …. 11.17 Ward, Re Estate of (SC(WA), Owen J, 9 April 1998, unreported) …. 5.49, 11.25, 11.26, 12.43 Ward v Anderson (SC(NSW), Waddell CJ in Eq, 6 June 1989, unreported) …. 16.18 — v Turner (1752) 2 Ves Sen 431; 28 ER 275 …. 1.24 — v Van der Loeff [1924] AC 653 …. 8.50 Wardill v Anderson [2016] NZHC 3114 …. 4.31, 4.39 Wardle, Re (1979) 22 SASR 139 …. 17.13, 17.76 Wardy v Salier [2014] NSWSC 473 …. 17.71, 20.61, 20.66, 20.70 Warren, Re Estate of [2001] NSWSC 104 …. 8.51 Warren v McKnight (1996) 40 NSWLR 390 …. 17.20, 17.21, 17.24, 17.37, 17.45 — v Milsom [1919] NZLR 737 …. 11.95 Warren (deceased), Re Will of [2014] QSC 101 …. 11.20 Warter v Warter (1890) LR 15 PD 152 …. 5.24 Warton v Yeo [2015] NSWCA 115 …. 8.51 Watchorn, Re [2011] VSC 175 …. 16.49 Watkins, Re [1949] 1 All ER 695 …. 18.25 Watkinson (deceased), Re [1952] VLR 123 …. 11.7, 11.87 Watson v England (1844) 14 Sim 28; 60 ER 266 …. 11.8 Watson (deceased), Re (1887) 13 VLR 599 …. 6.14 — v Ralph (1982) 148 CLR 646 …. 23.9 — v Watson (1864) 33 Beav 574; 55 ER 491 …. 7.84, 7.87

Watts v Crooke (1690) Show 108; 1 ER 74 …. 9.28, 21.10 — v Public Trustee (1949) 50 SR (NSW) 130 …. 1.21, 1.27 — v Public Trustee of Queensland (2010) 3 ASTLR 613; [2010] QSC 410 …. 20.33 Watts (deceased), In the Goods of (1837) 1 Curt 594; 163 ER 208 …. 11.4 Wayland, In the Estate of [1951] 2 All ER 1041 …. 5.5, 22.4 Weall v Rice (1831) 2 Russ & My 251; 39 ER 390 …. 7.80 Weatherhill v Pearce [1995] 2 All ER 492 …. 4.9 Webb v Ryan (No 2) [2012] VSC 431 …. 23.25, 23.33 — v Webb (1900) 21 LR (NSW) Eq 245 …. 7.73, 7.75 Webster, Re [1937] 1 All ER 602 …. 7.7 Wechsler v Du Maurier [2002] NSWCA 13 …. 2.14 Weeks, Re [2016] WASC 25 …. 11.11 Weinstock v Sarnat [2005] NSWSC 744 …. 22.9 Weiss v Barker Gosling (1993) 16 Fam LR 728 …. 24.21, 24.22 Weiss (deceased), In the Estate of [1962] P 136 …. 22.11 Weiss (deceased), Will of (1946) 48 WALR 37 …. 7.72 Welch, Re [1990] 3 NZLR 1 …. 1.38 Welch v Phillips (1836) 1 Moo PCC 299; 12 ER 828 …. 11.20 Wells, Re (1930) 30 SR (NSW) 150 …. 7.81, 7.84 Wells (deceased), Re [1968] 1 WLR 44 …. 11.89 Welsh v Mulcock [1924] NZLR 673 …. 17.71 Welsh (deceased), Re [2014] SASC 13 …. 11.17 Wenn v Howard [1967] VR 91 …. 19.12 Wentworth v Wentworth (1995) 37 NSWLR 703 …. 17.60, 17.69, 19.22, 20.52, 23.29 — v — (CA(NSW), Samuels AP, Priestley and Handley JJA, 3 March 1992, unreported) …. 19.20, 19.47, 20.73 — v — (SC(NSW), Bryson J, 14 June 1991, unreported) …. 19.20, 19.47, 20.60 — v — (SC(NSW), Young J, 4 September 1991, unreported) …. 20.11 Wesley v Wesley (1998) 71 SASR 1 …. 2.67, 2.68, 8.55 West, Re [1909] 2 Ch 180 …. 10.47 West v France [2010] NSWSC 845 …. 18.3, 19.27 — v West (1996) 5 Tas R 392 …. 17.17 — v Weston (1998) 44 NSWLR 657 …. 9.18 West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR

144 …. 2.14, 11.34 Westmelton (Vic) Pty Ltd (receiver and manager appointed) v Archer [1982] VR 305 …. 24.21, 24.22 Westminster Corporation v St George Hanover Square (Rector and Churchwardens) [1909] 1 Ch 592 …. 23.42 Westminster’s Deed of Appointment, Re [1959] Ch 265 …. 1.1 Westmore v Westmore (2009) 26 VR 579; [2009] VSC 624 …. 8.6 Weston, Re [1902] 1 Ch 680 …. 1.24, 1.25, 1.26 Westover, Re (1987) 139 LSJS 115 …. 11.8 Wharton v Bancroft [2011] EWHC 3250 …. 24.6 — v — [2012] EWHC 91 …. 23.13 Wheat v Wisbey [2013] NSWSC 537 …. 17.11 Wheatley v Edgar (2003) 4 ASTLR 1; [2003] WASC 118 …. 11.34 — v Wheatley [2006] NSWCA 262 …. 19.16, 19.38 — v — [2016] WASC 248 …. 17.28, 17.36 Wheelihan, In the Will of (1912) 29 WN (NSW) 98 …. 13.67 Whelan (deceased), Re [1961] VR 706 …. 8.16 Whelan (deceased), Re Estate of [2013] SASC 18 …. 9.4, 10.8 Wherrett, Re [1963] Tas R 178 …. 17.24 Whitaker v Kershaw (1890) 45 Ch D 320 …. 14.45 White, In the Estate of [1914] P 153 …. 11.17 White, Re (2003) 7 VR 219; [2003] VSC 433 …. 13.54, 13.56, 13.58, 13.59 White, Re [1898] 2 Ch 217 …. 13.66 White, Re [2001] TASSC 7 …. 11.11 White v Barron (1980) 144 CLR 431 …. 18.9, 18.12 — v Gillam [2016] VSC 5 …. 3.15 — v Hanover [2010] VSC 577 …. 18.3, 19.39 — v Jones [1995] 2 AC 207 …. 24.24, 24.29, 24.31, 24.33 — v Muldoon [2006] VSC 204 …. 15.9, 17.67, 19.9, 19.47 — v Wills [2014] NSWSC 1160 …. 2.29 White (deceased), Re (1932) 49 WN (NSW) 178 …. 23.31 White (deceased), Re [1951] NZLR 393 …. 2.5, 2.12, 11.19 White (deceased), Re [1991] Ch 1 …. 5.46 Whitehead v Palmer [1908] 1 KB 151 …. 11.58 — v State Trustees Ltd (2011) 4 ASTLR 528; [2011] VSC 424 …. 19.33, 19.39 Whitehead (deceased), Re [1958] VR 143 …. 13.43, 13.73

Whitelegg, In the Goods of [1898] P 267 …. 22.7 Whiteley, Re (1909) 101 LT 508 …. 14.35 Whiteley v Clune (No 2) (SC(NSW), Powell J, 13 May 1993, unreported) … 4.36, 11.20 Whitington v Whitington (No 2) [2009] SASC 178 …. 23.4, 23.22 Whitmont v Lloyd (SC(NSW), Bryson J, 31 July 1995, unreported) …. 19.47 Whitmore v Weld (1685) 1 Vern 326; 23 ER 499 …. 11.36 Whitrick (deceased), Re [1957] 2 All ER 467 …. 8.16 Whittle v Keats (1866) 35 LJ (P&M) 54 …. 11.50 Whyte v Pollok (1881) LR 7 App Cas 400 …. 2.21 — v Rose (1842) 3 QB 493; 114 ER 596 …. 22.9 Whytte v Ticehurst [1986] Fam 64 …. 17.14 Wiblen v Feros (1998) 44 NSWLR 158 …. 13.15, 20.11 Wieland v Bird [1894] P 262 …. 11.49 Wieland (deceased), Re [1960] Qd R 585 …. 17.11, 20.32 Wight, Re Estate [2013] NSWSC 1229 …. 10.81, 11.101 Wightwick v Lord (1857) 6 HLC 217; 10 ER 1278 …. 14.27 Wigley v Crozier (1909) 9 CLR 425 …. 13.15 Wilby v Rigby [2015] WTLR 1845; [2015] EWHC 2394 …. 11.101 Wild, Re [2003] 1 Qd R 459; [2002] QSC 200 …. 12.27 Wild v Plant [1926] P 139 …. 23.5, 23.13 Wilden (deceased), In the Estate of (2015) 121 SASR 516; [2015] SASC 9 …. 4.36, 10.8 Wilkes v Allington [1931] 2 Ch 104 …. 1.20 Wilkinson, In the Goods of [1892] P 227 …. 10.8 Wilkinson v Feldworth Financial Services Pty Ltd (1998) 29 ACSR 642 …. 12.29, 12.54 — v Joughin (1866) LR 2 Eq 319 …. 2.50 — v Wilkinson [2002] NSWSC 175 …. 17.34 Wilks, Re [1935] 1 Ch 645 …. 10.78 Wilks v Groom (1856) 3 Drew 584; 61 ER 1026 …. 12.25 Willcocks, Re [1921] 2 Ch 327 …. 7.25 Williams, Re (1830) 3 Hagg Ecc 217; 162 ER 1136 …. 11.46 Williams, Re [1933] Ch 244 …. 1.43, 4.71 Williams, Re Estate of (2004) 13 Tas R 309; [2004] TASSC 154 …. 16.10, 16.45

Williams, Re the Will of (SC(Tas), Wright J, 2 December 1986, unreported) …. 4.56 Williams v Aucutt [2000] 2 NZLR 479; [2000] NZCA 289 …. 15.5, 15.18, 17.75, 17.76, 17.79, 19.6 — v Federal Commissioner of Taxation (1950) 81 CLR 359 …. 1.10 — v Goude (1828) 1 Hagg 577; 162 ER 682 …. 2.39 — v Legg (1993) 29 NSWLR 687 …. 16.23 — v — (CA(NSW), Handley, Sheller and Cripps JJA, 16 March 1993, unreported) …. 16.23 — v Lewer [1974] 2 NSWLR 91 …. 15.10 — v Nixon (1840) 2 Beav 472; 48 ER 1264 …. 12.55 — v Public Trustee of New South Wales (No 2) [2007] NSWSC 974 …. 4.46 — v Schwarzback (No 2) [2016] WASC 43 …. 11.4, 11.31 — v Stephens (SC(NSW), Young J, 24 March 1986, unreported) …. 12.31, 14.27, 14.28 — v Williams (1882) 20 Ch D 659 …. 12.5, 12.6 — v — [2005] 1 Qd R 105; [2004] QSC 269 …. 11.1, 11.71, 11.79, 11.95, 11.98, 11.102, 11.105 Williams (deceased), In the Estate of (1984) 36 SASR 423 …. 4.33, 10.8, 10.9 Williams (deceased), Re [1985] 1 All ER 964 …. 2.64, 8.45 William’s Settlement, In the Matter of (1858) 4 K & J 87; 70 ER 37 …. 10.80 Williams’ Will, Re (1897) 7 QLJ 151 …. 4.67 Williamson v Spelleken [1977] Qd R 152 …. 23.5 — v Williamson [2011] NSWSC 228 …. 15.22, 19.16 Willis, Re [1911] 2 Ch 563 …. 8.69 Willis v Earl Beauchamp (1886) 11 PD 59 …. 11.30 Wilson, Estate of (1991) 24 NSWLR 334 …. 4.38, 11.95 Wilson, In the Will of (1897) 23 VLR 197 …. 2.5 Wilson, In the Will of (1903) 9 ALR 217 …. 2.24, 2.25 Wilson v Jones (1911) 12 CLR 394 …. 23.5 — v Paniani [1996] 3 NZLR 378 …. 1.15, 1.28 — v Saunders [2016] NZHC 1211 …. 1.49 Wilson (deceased), Re [2013] WTLR 899; [2013] EWHC 499 …. 2.15 Wilson (deceased), Re Estate [2017] NSWSC 1 …. 9.6, 9.18, 9.25, 9.76, 9.78 Wilson (deceased), Re Estate of (1987) 11 NSWLR 493 …. 13.44, 13.70 Wing v Angrave (1860) 8 HL Cas 183; 11 ER 397 …. 11.84, 11.85

Wingham (deceased), Re [1949] P 187 …. 4.25 Wingrove v Wingrove (1885) LR 11 PD 81 …. 2.39 Winter Irving v Winter [1907] VLR 546 …. 13.56, 13.58, 13.59, 13.60, 13.67 Winter v Crichton (1991) 23 NSWLR 116 …. 2.39, 2.40, 2.42 Wintle v Nye [1959] 1 All ER 552 …. 2.29, 2.30, 24.22 Wipperman, Re [1955] P 59 …. 11.23 Wirth, In the Will of (1930) 47 WN (NSW) 188 …. 13.67 Wisden v Wisden (1854) 2 Sm & G 396; 65 ER 452 …. 8.73 Wise v Whitburn [1924] 1 Ch 460 …. 10.46, 10.47 Woithe (deceased), In the Estate of (1972) 3 SASR 189 …. 7.32 Wolson, Re [1939] Ch 780 …. 7.20 Wong, Estate of [2014] NZHC 2554 …. 4.31, 4.37 Wood, Re Estate of (2014) 11 ASTLR 301; [2014] NTSC 14 …. 4.40 Wood v McLean (2010) 31 VR 12; [2010] VSC 550 …. 11.26, 12.13 — v Penoyre (1806) 13 Ves 325; 33 ER 316 …. 14.32, 14.34 — v Smith [1993] Ch 90 …. 2.7, 4.9 Wood (deceased), In the Estate of (1904) 21 WN (NSW) 254 …. 1.23 Wood (deceased), Re [1961] Qd R 375 …. 12.46, 12.47 Woodard v Woodard [1995] 3 All ER 980 …. 1.24 Woodgate v Tanks [2014] 1 Qd R 481; [2013] QSC 204 …. 8.14 Woodhead v Perpetual Trustee Co Ltd (1987) 11 NSWLR 267 …. 2.12 Woodin, Re [1895] 2 Ch 309 …. 14.36 Woodland-Ferrari v UCL Group Retirement Benefits Scheme [2003] Ch 115; [2002] EWHC 1354 …. 12.54 Woodley-Page v Simmons (1987) 217 ALR 25 …. 24.4 Wood-Luxford v Wood [2014] 1 NZLR 451; [2013] NZSC 153 …. 16.55 Woodward, In the Goods of (1871) LR 2 P & D 206 …. 5.10 Woodward v Darcy (1547) 1 Plow 184; 75 ER 282 …. 14.13 — v Goulstone (1886) 11 App Cas 469 …. 11.23 — v Holmes [2009] NSWSC 707 …. 17.30 Woolley v Clark (1822) 5 B & Ald 744; 106 ER 1363 …. 11.71 Woolnough v Public Trustee (No 2) [2005] TASSC 102 …. 23.34 Wooton, In the Goods of (1874) 3 P & D 159 …. 4.5 Worboys v Jones [2004] NZFLR 360 …. 20.44 Worby v Rosser [2000] PNLR 140 …. 24.35, 24.37 Wordigham v Royal Exchange Trust Co Ltd [1992] Ch 412 …. 2.64

Worladge v Doddridge (1957) 97 CLR 1 …. 15.12, 17.77, 18.2, 18.9, 19.7 Worth v Clashom (1952) 86 CLR 439 …. 2.17, 2.37, 11.15 Worthington, Re [1933] 1 Ch 771 …. 14.4 Worthington (deceased), Re [1954] 1 All ER 677 …. 13.43 Wright, In the Goods of [1902] P 21 …. 11.23 Wright, Re [1970] QWN 28 …. 5.13 Wright v Carter [1903] 1 Ch 27 …. 24.21, 24.22 — v Public Trustee [2007] NSWSC 1069 …. 23.37 — v Rogers (1869) LR 1 PD 678 …. 4.20 — v Wright [2015] NSWSC 1333 …. 19.22 Wrightson, Re [1908] 1 Ch 789 …. 12.47 Wrightson v Calvert (1860) 1 John & H 250; 70 ER 740 …. 8.28 Wyckoff, In the Goods of (1862) 3 Sw & Tr 20; 164 ER 1178 …. 11.57 Wyles, Re [1938] 1 Ch 313 …. 14.31, 14.32 Wynch v Wynch (1788) 1 Cox 433; 29 ER 1236 …. 14.37 Wynn (deceased), Re [1952] Ch 271 …. 13.35 Wynn (deceased), Re [1983] 3 All ER 310 …. 9.8 Wytcherley v Andrews (1871) LR 2 PD 327 …. 11.32 X X (an infant) v Wollcombe Young [2001] Lloyd’s Rep PN 274 …. 24.33 Y Yardley v Arnold (1842) C & M 434; 174 ER 577 …. 10.19 Yates (deceased), In the Estate of [1919] P 93 …. 4.22 Yates v Halliday [2006] NSWSC 1346 …. 12.30, 12.31 Yazbek v Yazbek [2012] NSWSC 594 …. 4.6, 4.36, 4.50 — v — (No 2) [2012] NSWSC 783 …. 11.95 Ye v Fung [2006] NSWSC 243 …. 16.15 — v — (No 3) [2006] NSWSC 635 …. 18.32 Yearwood, In the Estate of (1982) 30 SASR 169 …. 11.40 Yeo (deceased), In the Estate of (1978) 17 SASR 545 …. 11.23 Yesilhat v Calokerinos [2015] NSWSC 1028 …. 16.18 York, In the Will of (1894) 15 LR (NSW) B & P 24 …. 12.50 Yorke (deceased), Re [1997] 4 All ER 907 …. 12.44, 14.45, 14.49 Younan v Younan (No 2) [2015] VSC 549 …. 17.22, 17.43, 17.49

Young, Re [1913] 1 Ch 272 …. 7.42, 7.43 Young, Re [1951] Ch 344 …. 4.54, 4.78 Young, Re [1968] NZLR 1178 …. 11.31, 11.32, 12.1, 23.26 Young, Re the Estate of [2015] WASC 409 …. 4.39 Young v Brown (1827) 1 Hagg Ecc 53; 162 ER 504 …. 11.50 — v Holloway [1894] P 87 …. 11.32 — v Kestel [2003] WASCA 190 …. 17.31, 17.37, 20.42 Young (deceased), Re [1965] NZLR 294 …. 19.16 Young (deceased), Re [1969] NZLR 454 …. 4.11, 4.20, 10.9 Yu, Re (2013) 11 ASTLR 490; [2013] QSC 322 …. 4.36 Yu v Yu [2015] QSC 373 …. 8.12 Yule v Irwin (No 2) [2016] SASC 178 …. 11.90, 11.91, 13.15, 13.17, 13.18, 13.21, 13.34 Z Zagame v Zagame [2014] NSWSC 1302 …. 20.15 Zahra v Francica [2009] NSWSC 1206 …. 17.5, 17.9 Zannetides v Spence [2013] NSWSC 2032 …. 18.3 Zappia v Parelli [2007] NSWSC 972 …. 23.37 Zappullo (deceased), Re [1966] VR 390 …. 11.85 Ziesemer v Ziesemer [2011] QSC 214 …. 11.95 Zirkler v McKinnon [2002] NSWSC 285 …. 17.16, 17.32, 17.41, 20.77 Zivojin v Babic (No 2) [2013] VSC 113 …. 23.16 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 …. 2.3, 2.7 Zuvela v Zuvela [2015] WASC 410 …. 8.32

Table of Statutes References are to paragraph numbers

COMMONWEALTH Australian Courts Act 1828 …. 21.18 Bankruptcy Act 1966 …. 10.43, 14.10, 14.12 Pt XI …. 14.12 s 5(1) …. 10.43 s 244 …. 14.12 s 247 …. 14.12 Commonwealth of Australia Constitution Act s 109 …. 14.11 Corporations Act 2001 …. 13.76, 14.29 Ch 5D …. 13.76 s 601RAC(1) …. 13.76 s 601RAC(2) …. 13.76 s 601TBA …. 13.76 s 601TBB …. 13.76 s 601TEA(1) …. 13.77 s 601TEA(2) …. 13.77 s 601TEA(3) …. 13.77 s 1072F(1) …. 10.47 Corporations Legislation Amendment (Financial Services Modernisation) Act 2009 Pt 5D.3 …. 13.76 Electronic Transactions Act 1999 s 10 …. 4.6 Evidence Act 1995 s 117(1) …. 24.2

s 121(1) …. 24.2 Family Law Act 1975 …. 16.52, 18.3, 18.13, 18.15, 19.42 Pt VIII …. 18.15 s 60H …. 8.56 s 78 …. 17.8 s 80 …. 17.8 s 81 …. 18.15 s 82(4) …. 17.8 s 90B …. 19.42 s 90G …. 19.42 s 90K …. 18.17, 19.42 s 90SJ(2) …. 17.8 s 90ST …. 18.15 s 90UB …. 19.42 s 90UJ …. 19.42 s 90UM …. 18.17, 19.42 Federal Court of Australia Act 1976 s 31A(2) …. 17.19 Income Tax Assessment Act 1936 …. 10.52, 10.53 s 6(1) …. 10.52 s 97 …. 10.52, 10.53 s 98 …. 10.53 s 99 …. 10.53 s 99A …. 10.53 s 101A …. 10.54 s 101A(1) …. 10.54 Income Tax Assessment Act 1997 Div 128 …. 10.55 Div 855-B …. 10.55 Subdiv 118-B …. 10.55 s 104-10 …. 10.55 s 104-215 …. 10.55 s 108-5(1) …. 10.55 s 108-7 …. 10.56 s 128-15(1) …. 10.55 s 128-15(2) …. 10.55

s 128-15(3) …. 10.55 s 128-15(4)(item 1) …. 10.55 s 128-15(4)(item 4) …. 10.55 s 128-20(1) …. 10.55 s 128-20(2) …. 10.55 s 128-25 …. 10.55 s 128-50(2) …. 10.56 s 128-50(3) …. 10.56 s 128-50(4) …. 10.56 s 995-1(1) …. 10.55 Sch 2D Div 57 …. 10.55 Life Insurance Act 1995 s 205(1) …. 1.10 Marriage Act 1961 …. 9.39, 9.78, 16.13 s 23B …. 16.38 Superannuation Industry (Supervision) Act 1993 s 59(1A) …. 1.11 Superannuation Industry (Supervision) Regulations 1994 reg 6.17A …. 1.11 reg 6.17A(7) …. 1.11

AUSTRALIAN CAPITAL TERRITORY Administration and Probate Act 1929 …. P.14 Pt 3A …. P.13, 9.1, 10.34 s 6 …. 10.45 s 6(14) …. 10.42, 10.77 s 8 …. 10.77 s 9(1) …. 11.1 s 9(2) …. 11.1 s 9A(1) …. 11.10 s 9A(2) …. 11.10 s 9B …. 11.108 s 9B(1)(a)–(c) …. 11.10 s 9B(1)(d) …. 11.10 s 9B(1)(e) …. 11.10

s 9B(3) …. 11.10 s 10B …. 11.36 s 10C …. 10.6 s 11 …. 11.70 s 11(1) …. 10.45 s 12(1)(a)–(d) …. 10.28 s 12(1)(c) …. 10.28 s 12(1)(e) …. 10.28 s 12(2) …. 10.22, 11.44 s 12(3) …. 10.28 s 12A(4)–(6) …. 14.64 s 13…. 12.1 s 14 …. 12.24 s 14A(2)(a) …. 12.3 s 20 …. 10.58 s 20A(1) …. 10.59 s 21(1) …. 10.10 s 21(2) …. 11.44 s 22(1) …. 10.12 s 22(2) …. 10.12 s 23(1) …. 11.49 s 23(2) …. 11.49 s 24 …. 11.39 s 25 …. 11.39 s 26 …. 11.48 s 27 …. 11.48 s 28(1) …. 11.48 s 28(2) …. 11.48 s 29 …. 11.48 s 30 …. 11.48 s 31 …. 11.112 s 32(2) …. 10.73, 11.104 s 32(3) …. 10.73, 11.104 s 32(5) …. 11.105 s 32(6) …. 11.105 s 32A(1)(a) …. 11.103, 11.108

s 32A(1)(b) …. 11.103 s 32A(2) …. 11.103 s 32B(1)(b) …. 11.108 s 32B(1)(c) …. 11.108 s 32B(1)(d) …. 11.108 s 32B(1)(e) …. 11.108 s 32B(1)(f) …. 11.108 s 32B(2) …. 11.108 s 32B(3) …. 11.108 s 32B(4) …. 11.108 s 38A …. 9.10, 9.11 s 38A …. 11.71, 11.80 s 39 …. 9.11 s 39 …. 11.69, 11.80, 11.81 s 40 …. 11.81 s 41(1) …. 11.69 s 41A(1) …. 11.69, 14.1, 14.3 s 41A(2) …. 14.1 s 41B …. 14.1 s 41C(1) …. 14.3 s 41C(2) …. 14.10 s 41D …. 14.42 s 42 …. 11.70 s 43 …. 9.13 s 43 …. 11.69 s 43A …. 10.84 s 43B …. 10.84 s 43C …. 10.85 s 44 …. 9.1, 9.29, 9.30, 9.32 s 44A …. 9.28 s 44 …. 10.28, 14.50 s 45 …. 9.11 s 45A(1) …. 9.32 s 46(1) …. 9.26 s 46(2) …. 9.26 s 46(3) …. 9.26

s 47 …. 10.79 s 48 …. 9.22 s 49(2) …. 9.30 s 49(3) …. 9.30 s 49(5) …. 9.31 s 49A …. 9.30 s 49B …. 9.31 s 49BA(1) …. 9.73 s 49BA(3) …. 9.73 s 49BA(4) …. 9.73 s 49BA(5) …. 9.73 s 49C …. 9.31 s 49CA …. 9.31 s 49D(3)(a) …. 9.30 s 49D(3)(b) …. 9.30 s 49D(5) …. 9.31 s 49F …. 9.57 s 49G(1) …. 9.57 s 49G(2) …. 9.57 s 49G(3) …. 9.57 s 49G(4) …. 9.57 s 49G(5) …. 9.57 s 49G(6) …. 9.57 s 49H …. 9.57 s 49J …. 9.59 s 49K …. 9.59 s 49L(1) …. 9.58 s 49L(2) …. 9.59 s 49L(3) …. 9.58 s 49L(4) …. 9.58 s 49M …. 9.58 s 49N(1) …. 9.57 s 49N(2) …. 9.57 s 49P …. 11.88 s 49P(1) …. 11.84 s 49Q …. 11.88

s 50(5) …. 11.92 s 53 …. 12.28 s 55(1) …. 14.15 s 55(2) …. 14.15 s 55(3) …. 14.15 s 55A(1) …. 14.40 s 55A(2) …. 14.40 s 56 …. 10.47 s 57 …. 12.50 s 58(2) …. 12.34 s 58(3) …. 12.34 s 58(4) …. 12.34 s 59(2) …. 12.54 s 62 …. 11.109 s 63 …. 11.108, 11.109 s 64 …. 12.27, 17.51 s 64(1) …. 14.53 s 64(2) …. 14.53 s 65(1) …. 14.54 s 65(2) …. 14.54 s 66(1) …. 14.46 s 66(2) …. 14.46 s 67 …. 14.46, 14.55 s 70(7) …. 10.42, 10.77 s 74A …. 10.20 s 74B …. 12.52 s 85 …. 12.58 s 87B(1) …. 11.113 s 87B(2) …. 11.113 s 87B(3) …. 11.113 s 87B(4) …. 11.113 s 87C(1) …. 11.113 s 87C(2) …. 11.113 s 87C(3) …. 11.113 s 87C(4) …. 11.113 s 87C(5) …. 11.113

s 87C(6)–(11) …. 11.113 s 88 …. 11.113 s 88(1) …. 10.34 s 88(2) …. 10.34 s 88(3) …. 10.34 s 89(1) …. 10.34 s 89(2) …. 10.34 s 90(1) …. 10.34 s 90(2) …. 10.34 s 91(2) …. 10.34 s 92(1) …. 11.115 s 92(2) …. 11.115 s 92(3) …. 11.115 s 93 …. 10.34 s 95 …. 10.80 s 97 …. 10.34 s 101 …. 12.34 Sch 4 Pt 4.1 …. 14.3 Sch 4 Pt 4.2 …. 14.10 Sch 6 …. 9.29 Administration and Probate Ordinance 1929 Pt VII.… 15.5 Adoption Act 1993 s 43 …. 8.54, 9.25, 16.8 Bankruptcy Act 1966 s 116 …. 20.28 Births, Deaths and Marriages Registration Act 1997 …. 14.53 Pt 4 …. 8.59 Cemeteries and Crematoria Regulation 2003 s 8 …. 12.8 Civil Law (Property) Act 2006 s 204 …. 1.37, 11.91 s 213 …. 11.88 ss 242–247 …. 13.7 s 256(1) …. 10.78 s 256(2) …. 10.78

s 256(3) …. 10.78 s 256(5) …. 10.78 s 256(8) …. 10.78 s 500(1) …. 14.8 s 500(2) …. 14.8 s 500(3) …. 14.9 s 500(4) …. 14.9 s 500(5) …. 14.8 Civil Law (Wrongs) Act 2002 s 15(1) …. 12.20 s 15(2) …. 12.20 s 16(2) …. 12.20 s 16(3) …. 12.20 s 16(4) …. 12.20 s 17 …. 12.20 s 195(1) …. 20.37 Civil Partnerships Act 2008 s 6 …. 9.32, 16.9 s 6(2) …. 9.32, 16.9 s 6A …. 5.23 Court Procedures Act 2006 s 5A(2)(e) …. 23.22 Court Procedures Rules 2006 r 21 …. 23.22, 23.36 r 35(2)(d) …. 13.34 r 709 …. 23.38 r 1147 …. 17.19 r 1721 …. 23.23 r 1730 …. 23.38 r 1732(3) …. 23.2 r 1752(2) …. 23.4 r 2700 …. 12.46 r 2701 …. 12.46 r 2745 …. 12.34 r 2746(1) …. 12.34 r 2746(2) …. 12.34

r 2747(1)–(3) …. 12.34 r 2747(5) …. 12.34 r 2749(1) …. 12.34 r 2749(2) …. 12.34 r 2749(3) …. 12.34 r 2750(1) …. 12.34 r 2750(2) …. 12.34 r 2752(1) …. 12.34 r 2752(2) …. 12.34 r 2752(6) …. 12.34 r 2753(1) …. 12.34 r 2754(1) …. 12.34 r 3014 …. 10.59 r 3115 …. 12.34, 12.50 r 3115(1) …. 12.34 r 3045(1) …. 11.61 r 3045(2) …. 11.60, 11.61 r 3045(3) …. 11.61 r 3045(5) …. 11.61 r 3045(6) …. 11.61 r 3046(1) …. 11.61 r 3046(2) …. 11.61 r 3049(1) …. 11.61 r 3049(2) …. 11.61 r 3050(1) …. 11.61 r 3050(2) …. 11.61 r 3066(1) …. 11.24 r 3066(5) …. 11.27 r 3067(2) …. 11.27 r 3067(3) …. 11.27 r 3069–3071 …. 11.27 r 3114 …. 11.39 r 3116 …. 10.10 r 3116(1) …. 11.45 r 3116(2) …. 11.45 r 6250(2)(o) …. 11.2, 11.30

Domestic Relationships Act 1994 …. 19.3 s 3(1) …. 16.11 s 3(2)(a) …. 16.11 s 3(2)(b) …. 16.11 s 15 …. 19.3 Duties Act 1999 s 69 …. 10.57 Electronic Transactions Act 2001 s 9 …. 4.6 Evidence Act 2011 s 59 …. 19.36 s 60 …. 19.36 s 63 …. 19.36 s 92(1)(b) …. 11.29 s 117(1) …. 24.2 s 121(1) …. 24.2 s 140(2) …. 4.52 Family Provision Act 1969 …. P.15, 15.5, 19.3 s 8(2) …. 15.8 s 7(1)(a) …. 18.13 s 7(1)(a)–(c) …. 16.8, 18.1 s 7(1)(d) …. 18.45 s 7(1)(d)–(f) …. 16.8 s 7(1)(e) …. 18.36 s 7(1)(f) …. 18.50 s 7(2) …. 16.8, 16.12 s 7(3) …. 16.12 s 7(4) …. 16.12 s 7(7) …. 16.12 s 7(8) …. 16.8 s 7(9) …. 6.9, 18.13 s 8(1) …. 17.2, 17.4, 17.58 s 8(2) …. 17.15, 17.59, 17.80, 19.1, 19.3 s 8(3) …. 17.58, 19.1, 19.3 s 8(3)(a) …. 19.2, 19.9 s 8(3)(c) …. 18.28

s 8(3)(e) …. 19.6 s 8(3)(h) …. 20.27 s 8(3)(k) …. 17.58, 19.1, 19.31 s 8(4) …. 17.16 s 9(1) …. 17.22 s 9(2) …. 17.23 s 9(3) …. 17.23 s 9(4) …. 17.43 s 9A(1) …. 20.50 s 9A(2) …. 20.50 s 9A(3) …. 20.48 s 9A(4) …. 20.50 s 9A(5) …. 20.50 s 10(1) …. 17.10 s 10(2) …. 17.10 s 11(1) …. 20.15 s 11(2) …. 20.13 s 11(3) …. 20.13 s 12(1) …. 20.18 s 12(2) …. 20.18 s 12(3) …. 20.18 s 12(4) …. 20.18 s 15(1) …. 20.19 s 15(2) …. 20.19 s 16(1) …. 20.10 s 16(2) …. 20.10 s 18 …. 20.12 s 19 …. 20.31 s 20 …. 17.43, 20.39 s 21 …. 17.51 s 22(1) …. 19.35 s 22(2) …. 19.35 s 22(3) …. 19.37 Dictionary …. 17.22, 20.39 Family Provision Act 1982 …. 4.21 Family Provision (Amendment) Act 1996 …. 16.8

Forfeiture Act 1991 …. 7.54, 7.68, 9.14 s 3(1) …. 7.68 s 3(2) …. 7.68 s 3(3) …. 7.68 s 3(4) …. 7.68 s 3(5) …. 7.68 s 4 …. 7.68 Land Titles Act 1925 s 135(2) …. 11.122 Legal Profession (Solicitors) Conduct Rules 2015 …. 24.23 r 12.2 …. 24.21 r 12.4.1 …. 24.17 r 12.4.2 …. 24.23 Legislation Act 2001 s 169 …. 9.32 s 169(1) …. 16.9 s 169(2) …. 16.9, 16.10 Dictionary …. P.8, 4.5, 4.36 Justice and Community Safety Legislation Amendment Act 2012 …. 22.20 Limitation Act 1985 s 11(1) …. 12.59 s 15 …. 16.5 s 27(1) …. 12.59 s 27(1)(c) …. 12.59 s 27(1)(d) …. 12.59 s 27(1)(e) …. 12.59 Dictionary …. 12.59 Parentage Act 2004 …. 14.37 s 11 …. 8.56 s 38 …. 8.53, 9.23 s 39(6) …. 8.53 Public Trustee and Guardian Act 1985 s 13(1)(b) …. 10.6 s 28 …. 13.74 ss 28(1) …. 13.75 s 75 …. 13.75

Public Trustee and Guardian (Fees) Determination 2016 …. 13.75 Transplantation and Anatomy Act 1978 Pt 3 …. 12.8 Trustee Act 1925 s 4(1) …. 14.53 s 4(1)(b) …. P.16 s 26(2) …. 13.6 s 28 …. 13.6 s 30 …. 13.6 s 38 …. 13.9 s 41(2) …. 13.5 s 46 …. 9.57 s 46(1) …. 13.19 s 46(1)(a) …. 13.19 s 46(1)(b) …. 13.19 s 46(1)(c) …. 13.19 s 46(2) …. 13.19 s 46(3) …. 13.19 s 46(4) …. 13.19 s 46(5) …. 13.19 s 46(6) …. 13.19 s 46(7) …. 13.19 s 46(8)(c) …. 13.19 s 46(12) …. 13.19 s 46(13) …. 13.19 s 46(14) …. 13.19 s 46(15) …. 13.19 s 50(1) …. 13.5 s 50(5) …. 13.5 s 51 …. 13.7, 13.39 s 51(d) …. 13.7 s 51A(1)(a) …. 13.11 s 51A(1)(b) …. 13.26 s 51A(2) …. 13.11, 13.26 s 52 …. 13.7 s 53 …. 13.14

s 59(4) …. 13.40 s 60 …. 14.53 s 60(5) …. 14.53 s 60(6) …. 14.55 s 63 …. 13.34 s 68(a) …. 13.29 s 68(b)–(d) …. 13.29 s 68(e) …. 13.29 s 70 …. 13.44 s 81 …. 13.1 s 81(2)(b) …. 13.11 s 84(1) …. 13.9 s 86(1) …. 13.41 s 86(2) …. 13.41 s 97A …. 13.34 Dictionary …. P.16 Trustee Companies Act 1947 s 4 …. 10.6 s 5 …. 10.61 s 6(1) …. 10.61 s 6(2) …. 10.61 s 7(1) …. 10.61 s 7(2) …. 10.61 s 8(1) …. 10.61 s 14(1) …. 10.74 s 18 …. 13.76 s 18B(4) …. 13.77 Wills Act 1968 …. P.12 Pt 2A …. 22.15 Pt 3B …. 22.20 Pt 5 …. 22.8 s 8A …. 3.22 s 8A(1) …. 3.23 s 8A(2) …. 3.23 s 8B …. 3.22 s 9 …. 4.1

s 9(1) …. 22.4 s 9(1)(c) …. 4.13, 4.15 s 9(2) …. 4.19, 22.4 s 10 …. 4.8 s 10(1) …. 4.9 s 11 …. 22.30 s 11A …. 4.31 s 11A(1) …. 4.36, 4.52 s 11A(2) …. 4.51 s 12 …. 5.42 s 12(1) …. 5.46, 5.48 s 12(2) …. 5.46 s 12B …. 7.19, 8.44, 8.59 s 12B(c) …. 8.45 s 15 …. 4.57 s 15A …. 22.16 s 15B …. 22.17 s 15C …. 22.15 s 15D(1)(a) …. 22.15 s 15D(1)(b) …. 22.16 s 15D(1)(c) …. 22.23 s 15D(2) …. 22.30 s 15E(1) …. 22.18 s 15F …. 22.19 s 15G …. 22.22 s 16 …. 4.21 s 16(1) …. 4.23 s 16(3)–(5) …. 4.23 s 16(6) …. 4.23 ss 16A–16I …. 3.1 s 16A(3) …. 3.21 s 16A(4) …. 3.5 s 16A(5) …. 3.21 s 16B …. 3.3 s 16B(1) …. 3.3 s 16B(2) …. 3.4

s 16D(a) …. 3.4 s 16E(a)–(c) …. 3.4 s 16E(b) …. 3.16 s 16E(d) …. 3.3 s 16F(1) …. 3.21 s 16F(2) …. 3.21 ss 16J–16M …. 22.20 s 20 …. 5.23 s 20(1) …. 5.23, 5.26 s 20(2) …. 5.33 s 20A …. 5.35 s 20A(1)(a) …. 5.39 s 20A(1)(b) …. 5.39 s 20A(2)(a) …. 5.39 s 20A(2)(b) …. 5.40 s 20A(3)(a) …. 5.35 s 21 …. 5.1, 5.2 s 21(b)(ii) …. 5.8 s 21(b)(iii) …. 5.9 s 22(1) …. 6.13 s 22(2) …. 6.13, 6.19 s 22(3) …. 6.13 s 24 …. 4.5, 6.6, 7.29, 8.67 s 25 …. 7.10 s 26 …. 8.72 s 26(2) …. 8.76 s 26(3) …. 8.76 s 27 …. 8.73 s 28A …. 8.59 s 31(1) …. 7.19 s 31(1)–(3) …. 7.19 s 31(4) …. 7.19 s 31(5) …. 7.19 s 31A …. 8.53 s 31C …. 7.13

NEW SOUTH WALES Administration (Amendment) Act 1906 …. 21.27 Administration (Validating) Act 1900 …. 21.26 Adoption Act 2000 s 95 …. 8.54, 9.25 s 95(2)(a) …. 16.19 Anti-Discrimination Act 1977 Pt 3A …. 8.59 Archibald Thompson’s Estate Act 1880 …. 21.25 Basset-Darley Estate Act 1877 …. 21.25 Bate’s Estate Act 1881 …. 21.25 Bell’s Estate Act 1886 …. 21.25 Bishopthorpe Estate Charge Act 1874 …. 21.25 Births, Deaths and Marriages Registration Act 1995 s 50 …. 14.53 Bodalla Estate Act 1886 …. 21.25 Campbell’s Will Trustees Act 1852 …. 21.25 Children and Young Persons (Care and Protection) Act 1998 …. 16.19 Civil Procedure Act 2005 …. 23.37 s 17 …. 14.53, 17.52 s 26(1) …. 20.37 s 56(1) …. 23.22 s 60 …. 23.22, 23.36, 23.37 s 101 …. 20.16 Cohen’s Enabling Act 1879 …. 21.25 Cohen’s Estate Act 1873 …. 21.25 Cohen’s Estate Act 1884 …. 21.25 Cohen’s Estate Act Amendment Act 1874 …. 21.25 Companies (Death Duties) Act 1899 …. 21.25 Confiscation of Proceeds of Crime Amendment Act 2005 …. 7.69 Conveyancing Act 1919 …. 10.62 s 7(2) …. 10.78 s 19A …. 8.74 s 26(2) …. 11.89 s 35 …. 11.85

s 54A …. 1.37, 11.91 ss 66F–66I …. 13.7 s 145(1) …. 14.8 s 145(2) …. 14.9 s 145(3) …. 14.8 s 151D(1)(a) …. 10.78 s 151D(1)(b) …. 10.78 s 151D(1)(d) …. 10.78 s 153(1) …. 13.5 s 153(4) …. 11.92, 13.5 Conveyancing, Trustee and Probate (Amendment) Act 1937 …. 21.31 De Facto Relationships Act 1984 …. 16.10 Dust Diseases Tribunal Act 1989 s 12B …. 12.34 Dillon’s Estate Act 1884 …. 21.25 District Court Act 1973 s 134(1)(c) …. 17.2 s 134(2) …. 17.2 Duties Act 1997 s 63 …. 10.57 Earnshaw’s Estate Act 1883 …. 21.25 Electronic Transactions Act 2001 s 9 …. 4.6 Ennis Estate Act 1886 …. 21.25 Evidence Act 1995 s 59 …. 19.36 s 60 …. 19.36 s 63 …. 19.36 s 92(1)(b) …. 11.29 s 117(1) …. 24.2 s 121(1) …. 24.2 s 140(2) …. 4.52 Family Provision Act 1982 …. P.15, 15.5, 16.1, 19.35, 23.30 Pt 2 Div 2 …. 20.58 s 6(1) …. 16.9, 16.14, 16.30, 16.34 s 6(5) …. 20.6

s 7 …. 17.63, 17.80 s 8 …. 20.52 s 9 …. 17.80 s 9(1) …. 18.15 s 9(2) …. 17.80 s 9(3) …. 19.4 s 9(5) …. 20.17 s 9(6) …. 20.17 s 11(1)(a) …. 20.15 s 11(1)(b).… 22.37 s 11(1)(d) …. 20.16 s 14(1)(a) …. 20.10 s 14(1)(b) …. 20.10 s 15(1) …. 20.16 s 16(1) …. 17.22 s 19(1)–(3) …. 20.52 s 19(4) …. 20.52 s 20 …. 17.16 s 20(1) …. 17.16 s 20(2) …. 17.16 s 22(1) …. 20.60 s 22(2) …. 20.63 s 22(3) …. 20.60 s 22(4) …. 20.61 s 22(4)(a) …. 20.62 s 22(5) …. 20.63 s 22(6) …. 20.63 s 22(7) …. 20.60 s 23 …. 20.66 s 24 …. 20.65 s 25 …. 20.67 s 26 …. 20.70 s 27(1) …. 20.71 s 27(1)(b) …. 20.71 s 27(2) …. 20.74 s 28(1) …. 20.70

s 28(2) …. 20.75 s 28(4) …. 20.75 s 28(5) …. 20.76 s 28(5)(d) …. 20.77 s 29 …. 20.58 s 31(1)–(6) …. 20.35 s 31(7)–(9) …. 20.35 s 32 …. 19.35 s 33 …. 23.23 s 35(1) …. 17.52 s 35(2) …. 17.52 Forfeiture Act 1995 …. 7.54, 7.68, 9.14 s 4(2) …. 7.68 s 5(1) …. 7.68 s 5(2) …. 7.68 s 5(3) …. 7.68 s 5(3)(a) …. 7.68 s 6 …. 7.68 s 7 …. 7.68 s 8 …. 7.68 s 8(1)(c) …. 7.68 s 11(1) …. 7.69 s 11(2) …. 7.69 s 11(3) …. 7.69 Human Tissue Act 1983 Pt 4 …. 12.8 Gibson’s Estate Act 1862 …. 21.25 Heley’s Estate Act 1883 …. 21.25 Hill’s Estate Act 1881 …. 21.25 Hutchinson’s Estate Act 1884 …. 21.25 Imperial Acts Adoption Act 1836 …. 21.22 Imperial Acts Adoption Act 1839 …. 21.22 Imperial Acts Application Act 1969 s 8(1) …. 10.20 s 13(1) …. 10.84 s 13(2) …. 10.84

s 13(3) …. 10.84 s 13(3)(c) …. 10.84 s 13(4) …. 10.85 s 14 …. 12.1 s 15 …. 12.52 Inheritance Act 1901 …. 21.26 Interpretation Act 1987 s 21(1) …. P.8, 4.5, 4.36 s 21C …. 9.33 s 21C(2) …. 16.15 s 21C(3) …. 16.15 s 21C(3)(b) …. 16.18 s 21C(4) …. 16.15 s 21C(5) …. 16.15 s 21C(6) …. 16.15 Intestate and Insolvent Balances Act 1853 …. 21.23 Intestate Estates Act 1851 …. 21.23 Intestates’ Estates Act 1847 …. 21.19, 21.22, 21.23 Intestates’ Estates Claims Act 1849 …. 21.23 Isler’s Estate Act 1873 …. 21.25 Jurisdiction of Courts (Foreign Land) Act 1989 s 3.… 22.37 Law Reform (Miscellaneous Provisions) Act 1944 s 2(1) …. 12.20 s 2(2)(a)(i) …. 12.20 s 2(2)(c) …. 12.20 s 2(2)(d) …. 12.20 s 2(4) …. 12.20 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 …. 24.23 r 12.2 …. 24.21 r 12.4.1 …. 24.17 r 12.4.2 …. 24.23 Limitation Act 1969 s 11(1) …. 12.59 s 14(1)(a) …. 12.59

s 14(1)(b) …. 12.59 s 47(1)(c) …. 12.59 s 47(1)(d) …. 12.59 s 47(1)(e) …. 12.59 s 48(a) …. 12.59 s 63 …. 12.18 Moore Estate Act 1879 …. 21.25 Moore Estate Act Amendment Act 1886 …. 21.25 Moorebank Estate Act 1886 …. 21.25 Mortgage Debts Act 1855.… 21.24 Powers of Attorney Act 2003 s 22(1) …. 7.38 s 22(2) …. 7.38 s 23(1)(b) …. 7.38 s 23(2) …. 7.38 Probate Act 1890 …. 21.26, 21.27 s 20.… 11.69 Probate Act of 1890 Amendment Act …. 21.26 Probate and Administration Act 1898 …. P.14, 17.11 s 28 …. 14.64 s 33 …. 11.1 s 40 …. 11.1 s 40A(1) …. 11.10 s 40B(1)–(4) …. 11.10 s 40B(3) …. 11.10 s 40B(4) …. 11.10 s 40C …. 11.112 s 40C(1) …. 11.103 s 40C(2) …. 11.103 s 40C(3) …. 11.103 s 40D(1) …. 11.108 s 40D(2) …. 11.108 s 40D(3) …. 11.108 s 40D(3A) …. 11.108 s 40D(5) …. 11.108 s 41 …. 11.36

s 44 …. 14.50 s 44(1) …. 11.69, 11.79, 11.80, 11.81 s 45 …. 11.81 s 46(1) …. 11.69 s 46A(1) …. 11.69, 14.1, 14.3 s 46A(2) …. 14.1 s 46B …. 14.1 s 46C(1) …. 14.10 s 46C(2) …. 14.3 s 46D …. 14.42 s 47 …. 11.70 s 48 …. 11.69 s 61 …. 9.10, 11.71, 11.79, 11.80 s 62(1) …. 11.70 s 64(1) …. 11.62 s 64(2) …. 11.62 s 64(3) …. 11.62 s 65 …. 11.62 s 66 …. 11.102 s 66(a) …. 11.94 s 66(b) …. 11.62 s 66(c) …. 11.62 s 68 …. 11.62 s 71 …. 11.44 s 73(1) …. 11.49 s 73(2) …. 11.49 s 74 …. 11.39 s 75(1) …. 11.39 s 76 …. 11.48 s 77 …. 11.48 s 78(1) …. 11.48 s 78(2) …. 11.48 s 79 …. 11.48 s 80 …. 11.48 s 81(1) …. 11.112 s 81(2) …. 11.112

s 81(3) …. 11.112 s 82(1) …. 14.15, 14.16 s 82(2) …. 14.15 s 82(3) …. 14.15 s 84A …. 14.40 s 84A(1) …. 14.40 s 84A(2) …. 14.40 s 84A(3) …. 14.40 s 87(1) …. 14.15 s 90(2) …. 11.109 s 91(1) …. 11.108, 11.109 s 91(2) …. 11.109 s 92(1) …. 14.53 s 92(3) …. 14.53 s 92A …. 20.16 s 92A(1) …. 14.50 s 92A(2) …. 14.50 s 92A(3) …. 14.50 s 92A(4) …. 14.50 s 92A(5) …. 14.50 s 92A(6) …. 14.50 s 93(1) …. 14.54 s 93(2) …. 14.54 s 93(3) …. 14.54 s 93(4) …. 14.54 s 93(6) …. 14.54 s 94(1) …. 14.46 s 94(2) …. 14.46 s 95 …. 14.46, 14.55 s 98(1) …. 11.3 s 101 …. 11.3 s 103 …. 11.3 s 104(1) …. 11.3 s 104(2) …. 11.3 s 106 …. 11.3 s 144(1) …. 11.24

s 144(2) …. 11.27 s 148 …. 11.27 Sch 3 Pt 1 …. 14.10 Sch 3 Pt 2 …. 14.3 Probate Duties Amendment Act 1899 …. 21.25 Property (Relationships) Act 1984 …. 16.10 s 5 …. 16.20, 16.19 Protected Estate Act 1983 …. 11.12 s 21C …. 11.12 Protected Estate Amendment (Missing Persons) Act 2004 …. 11.12 s 54 …. 11.12 Public Health (Disposal of Bodies) Regulation 2002 cl 34 …. 12.8 Public Trustee Act 1913.… 21.28 Real Estate of Intestates Distribution Act 1862.… 21.24 Real Property Act 1900 …. 10.47 s 93(2) …. 11.122 Real Property (Dower) Act 1850 …. 21.22 Redmond’s Estate Act 1879 …. 21.25 Relationships Register Act 2010 …. 9.33, 16.15 Rogers’ Estate Act 1874 …. 21.25 Rogers’ Estate Act 1881 …. 21.25 Rotton’s Estate Act 1883 …. 21.25 Serisier’s Estate Act 1884 …. 21.25 Stamp Duties Act 1865 …. 21.25 Status of Children Act 1996 …. 14.37, 16.19 s 5 …. 8.53, 9.23 s 6 …. 8.53 ss 9–14 …. 16.19 s 14 …. 8.56 s 15 …. 16.19 s 21 …. 16.5 Succession Act 2006 …. 9.16, 9.17, 20.16, 20.40, 20.58 Ch 2 …. P.12 Ch 3 …. 4.21 Ch 4 …. P.13, 9.1

Pt 2 Div 5 …. 22.8 Pt 2.4 …. 22.15 Pt 2.4A …. 22.20 Pt 3.2 …. P.15, 15.5 Pt 3.3 …. 20.40, 20.58 Pt 4.4 …. 9.77 s 3(1) …. 4.36, 16.14, 17.2, 20.60 s 3(2) …. 16.14 s 3(3) …. 16.20 s 3(4) …. 16.20 s 6 …. 4.1 s 6(1)(b) …. 4.13 s 6(1)(c) …. 4.15 s 6(2) …. 4.8, 4.9 s 6(3) …. 4.19 s 6(5) …. 22.30 s 7 …. 4.16, 17.11, 17.14 s 8 …. 4.31, 17.14, 24.33 s 8(1)(a) …. 4.36 s 8(2) …. 4.52 s 8(3) …. 4.51 s 9 …. 4.13 s 10(1) …. 4.58 s 10(2) …. 4.58 s 10(3)(a) …. 4.58 s 10(3)(b) …. 4.59 s 10(3)(c) …. 4.59 s 10(4)(b) …. 4.58 s 11(1) …. 5.1, 5.2 s 11(1)(d) …. 5.8 s 11(1)(e) …. 5.9 s 11(1)(f) …. 5.15 s 11(2) …. 5.2 s 12 …. 5.23 s 12(2)(a) …. 5.31 s 12(2)(b) …. 5.34

s 12(2)(c) …. 5.33 s 12(3) …. 5.31 s 12(4) …. 5.31 s 13 …. 5.35 s 13(1) …. 5.36 s 13(2) …. 5.36 s 13(3) …. 5.37 s 13(4) …. 5.38 s 13(5)(a) …. 5.35 s 14 …. 5.42 s 14(1)(a) …. 5.46 s 14(2) …. 5.48 s 14(3) …. 5.46 s 15(1) …. 6.13 s 15(2) …. 6.13, 6.19 s 15(3) …. 6.13, 6.19 s 15(4) …. 6.13 s 16 …. 3.22 s 16(1)–(3) …. 3.23 s 16(4) …. 3.23 s 16(5)(c) …. 3.23 ss 18–26 …. 3.1 s 18(1) …. 3.3 s 18(3) …. 3.21 s 18(4) …. 3.5 s 18(5) …. 3.21 s 18A …. 4.31 s 19(1) …. 3.3 s 19(2) …. 3.4 s 21(a) …. 3.4 s 22(a)–(c) …. 3.4 s 22(b) …. 3.16 s 22(d) …. 3.3 s 23(1) …. 3.21 s 23(2) …. 3.21 s 30 …. 4.5, 6.6, 7.29, 8.67

s 31 …. 7.10 s 31(3) …. 7.10 s 32 …. 8.44 s 32(1) …. 8.44 s 32(2) …. 8.44, 8.55 s 32(3) …. 8.44 s 33 …. 22.22 s 35 …. 7.13, 11.87 s 36 …. 8.72 s 37 …. 8.76 s 38 …. 8.73 s 40 …. 22.4 s 41(1) …. 7.19 s 41(2) …. 7.19 s 41(3) …. 7.19 s 41(5) …. 7.19 s 42(1) …. 7.11, 8.75 s 42(2) …. 7.11, 8.75 s 42(3) …. 7.11 s 46 …. 8.59 s 46(5) …. 22.30 s 47 …. 22.16 s 48 …. 9.13 s 48(1) …. 22.15 s 48(2)(a) …. 22.15 s 48(2)(b) …. 22.16 s 48(2)(c) …. 22.23 s 48(3) …. 22.30 s 49 …. 22.17 s 50(1) …. 22.18 s 50(2) …. 22.19 ss 50A–50E …. 22.20 s 52 …. 9.22 s 55(1) …. 20.69 s 55(2) …. 17.52 s 55(3) …. 20.61

s 55(4) …. 20.60, 20.75 s 57(1) …. 16.14 s 57(1)(a)–(c) …. 18.1 s 57(1)(d) …. 18.13 s 57(1)(e) …. 16.30, 16.34, 18.13, 18.36, 18.45, 18.50 s 57(2) …. 16.19 s 58(1) …. 17.11 s 58(2) …. 17.22, 17.23, 17.24, 17.52 s 59(1) …. 17.2, 17.4, 17.11 s 59(1)(b) …. 16.14 s 59(1)(c) …. 15.8, 17.59, 17.80 s 59(2) …. 17.14, 17.58, 17.63, 17.80 s 59(3) …. 20.52 s 60(1) …. 19.1 s 60(2)(p) …. 19.1, 19.31 s 60(2) …. 17.58, 19.4 s 60(2)(c) …. 19.6 s 60(2)(d) …. 17.4 s 60(2)(e) …. 17.8 s 60(2)(g) …. 18.28 s 60(2)(h) …. 18.28 s 60(2)(j) …. 19.35 s 60(2)(m) …. 19.2, 19.9 s 60(2)(p) …. 17.58, 17.80 s 61(1) …. 17.16 s 61(2) …. 17.16 s 61(2)(a) …. 17.16 s 62(1) …. 20.17 s 62(2) …. 20.17 s 62(3) …. 20.16 s 63(1) …. 20.3 s 63(2) …. 20.3 s 63(3) …. 17.52, 20.40, 20.58 s 63(4) …. 20.6 s 63(5) …. 17.52, 20.40, 20.58 s 64 …. 22.37

s 65(1)(b) …. 20.15 s 65(1)(c) …. 20.15 s 65(1)(d) …. 20.15 s 65(2) …. 20.15 s 65(3) …. 20.16 s 66(1) …. 20.16 s 66(1)(a) …. 20.25 s 68(1) …. 20.19 s 68(2) …. 20.19 s 70(2) …. 20.52 s 70(3) …. 20.52 s 71 …. 20.52 s 72(1)(a) …. 20.10 s 72(1)(b) …. 20.10 s 72(2) …. 20.10 s 75 …. 20.70 s 75(1) …. 20.60 s 75(2) …. 20.60 s 75(3) …. 20.60 s 76 …. 20.70 s 76(2) …. 20.61 s 76(2)(a) …. 20.61, 20.62, 20.63, 20.66 s 76(2)(b) …. 20.61, 20.63 s 76(2)(c) …. 20.61, 20.63, 20.66 s 76(2)(d) …. 20.61, 20.63 s 76(2)(e) …. 20.61, 20.63 s 76(2)(f) …. 20.61 s 76(4) …. 20.61 s 77(1)–(4) …. 20.63 s 77(3) …. 20.61 s 78 …. 20.58 s 79 …. 20.65 s 80 …. 20.66 s 80 …. 20.70 s 80(1) …. 20.66 s 80(2) …. 20.66

s 83(2) …. 20.70 s 80(3) …. 20.66 s 80(3)(a) …. 20.66 s 80(3)(b) …. 20.66 s 81 …. 20.67, 20.70 s 81(1) …. 20.67 s 81(2) …. 20.67 s 82 …. 20.70 s 82(1) …. 20.68 s 82(2) …. 20.69 s 83(1) …. 20.70 s 84 …. 20.58 s 87 …. 20.63, 20.71 s 88 …. 20.70 s 89(1) …. 20.74 s 89(2) …. 20.75 s 89(3) …. 20.75 s 90(2) …. 20.76 s 91 …. 17.11 s 91(1) …. 17.11 s 91(2) …. 17.11 s 91(4) …. 17.11 s 93(1) …. 17.52 s 93(2) …. 17.52 s 93(3) …. 17.52 s 94(1) …. 20.16 s 94(3) …. 17.56 s 94(4) …. 17.52 s 94(5) …. 17.52 s 95 …. 20.35 s 95(1) …. 20.35 s 95(2) …. 20.35 s 95(3) …. 20.35 s 95(4) …. 20.35 s 96 …. 20.35 s 96(1) …. 20.35

s 96(2) …. 20.35 s 96(3) …. 20.35 s 98(2) …. 20.37 s 98(3) …. 20.37 s 99(1) …. 23.23 s 100(1) …. 19.35 s 100(2) …. 19.35 s 100(3) …. 19.35, 19.36 s 100(4) …. 19.35 s 100(5) …. 19.35 s 100(6) …. 19.35 s 100(7) …. 19.35 s 100(8) …. 19.37 s 100(12) …. 19.35 s 101 …. 9.34, 9.78 s 102 …. 9.1 s 103 …. 9.34 s 104 …. 9.33 s 105 …. 9.33 s 106(1) …. 9.34 s 106(2) …. 9.34 s 106(3) …. 9.34 s 106(4) …. 9.34 s 106(5) …. 9.34 s 106(9) …. 9.34 s 107(1) …. 9.17 s 108(1) …. 9.16 s 109 …. 9.25 s 109A(1) …. 9.25 s 109A(2) …. 9.25 s 111 …. 9.34 s 112 …. 9.34 s 113 …. 9.34 s 114 …. 9.60 s 115(1) …. 9.60 s 115(2) …. 9.60

s 115(3) …. 9.60 s 115(4) …. 9.60 s 115(6) …. 9.61 s 115(7) …. 9.61 s 116(1) …. 9.61 s 117(1) …. 9.61 s 117(3) …. 9.61 s 117(2) …. 9.61 s 118(1) …. 9.61 s 118(2) …. 9.61 s 118(3) …. 9.61 s 118(4) …. 9.61 s 118(5) …. 9.61 s 118(6) …. 9.61 s 119(1) …. 9.61 s 119(2) …. 9.61 s 119(3) …. 9.61 s 119(4) …. 9.61 s 119(5) …. 9.61 s 120 …. 9.61 s 121(1) …. 9.62 s 121(2) …. 9.62 ss 122–124 …. 9.35 s 124 …. 9.35 s 125 …. 9.44 s 125(1) …. 9.35 s 125(2) …. 9.35 s 125(3) …. 9.35 s 126(3) …. 9.35 s 126(4) …. 9.35 s 127(1) …. 9.36 s 127(2) …. 9.36 s 127(3) …. 9.36 s 127(4) …. 9.36 s 128(1) …. 9.36 s 129(1) …. 9.36

s 129(2) …. 9.36 s 129(3) …. 9.36 s 130(1) …. 9.36 s 131(1) …. 9.36 s 131(2) …. 9.36 s 131(3) …. 9.36 s 132 …. 9.37 s 133(1) …. 9.78 s 133(2) …. 9.78 s 133(3) …. 9.78 s 133(4) …. 9.78 s 134(1) …. 9.78 s 134(3) …. 9.78 s 134(2) …. 9.78 s 134(4) …. 9.78 s 135 …. 9.78 s 136 …. 9.38 s 137(2) …. 9.38 s 137(3) …. 9.38 s 138 …. 9.27 s 139 …. 9.15 s 139(a) …. 7.46, 9.13 s 139(b) …. 7.65 s 140 …. 9.75 Succession Amendment (International Wills) Act 2012 …. 22.20 Supreme Court Act 1970 s 95 …. 20.16 Supreme Court Rules 1970 Pt 8 r 16 …. 11.54 Pt 52A r 42(2) …. 23.2 Pt 78 r 9 …. 11.2 Pt 78 r 9(1) …. 11.30 Pt 78 r 50 …. 10.10, 11.45 Pt 78 r 51 …. 11.45 Pt 78 r 52(1) …. 11.45 Pt 78 r 52(3) …. 11.45

Pt 78 r 66(1) …. 11.25, 11.27 Pt 78 r 66(2) …. 11.27 Pt 78 r 69(1) …. 11.27 Pt 78 r 69(2) …. 11.27 Pt 78 r 70 …. 11.27 Pt 78 r 71 …. 11.27 Pt 78 r 85(1) …. 12.35 Pt 78 r 85(2) …. 12.35 r 1.10 …. 23.22 Surrogacy Act 2010 …. 9.25, 16.15 Testator’s Family Maintenance and Guardianship of Infants Act 1916 …. 15.5, 15.7, 16.1, 17.14, 21.29 Trustee Act 1925 s 5 …. P.16 s 6 …. 10.45 s 6(12) …. 10.42, 10.77 s 8 …. 10.77 s 10(1) …. 10.59 s 11(1) …. 10.45 s 14 …. 12.24 s 14A(2)(a) …. 12.3 s 26(2) …. 13.6 s 27B(1) …. 13.11 s 28 …. 13.6 s 30 …. 13.6 s 32G(2) …. 10.28 s 38 …. 13.9 s 44(2) …. 10.6 s 44(2)(b) …. 10.86 s 46(1) …. 13.19 s 46(1)(a) …. 13.19 s 46(1)(b) …. 13.19 s 46(1)(c) …. 13.19 s 46(2) …. 13.19, 13.5 s 46(3) …. 13.19 s 46(4) …. 13.19

s 46(5) …. 13.19 s 46(6) …. 13.19 s 46(7) …. 13.19 s 46(8)(c) …. 13.19 s 46(11) …. 13.19 s 46(12) …. 13.19 s 46(13) …. 13.19 s 46(15) …. 13.19 s 46E …. 10.47 s 46E(1) …. 10.47 s 47 …. 10.79 s 49(1)(a) …. 13.29 s 49(1)(aa) …. 13.29 s 49(1)(b)–(d) …. 13.29 s 49(1)(e) …. 13.29 s 49(2) …. 13.29 s 53 …. 12.28 s 57 …. 13.7, 13.39 s 57(d) …. 13.7 s 58 …. 13.7 s 59 …. 13.14 s 59(2) …. 12.54 s 59(4) …. 13.40 s 60 …. 14.53 s 60(6) …. 14.55 s 63 …. 10.28, 13.34 s 63(a)–(c) …. 10.28 s 63(d) …. 10.28 s 64 …. 12.27 s 69 …. 10.58 s 70 …. 10.10 s 70(9) …. 10.42, 10.77 s 72(1) …. 10.12 s 72(2) …. 10.12 s 75A …. 10.63, 10.76 s 75A(1) …. 10.62

s 75A(2) …. 10.75 s 75A(3) …. 10.62, 10.75 s 75A(4) …. 10.62, 10.75 s 75A(4)–(6) …. 10.62, 10.75 s 75A(8) …. 10.62 s 75A(9) …. 10.62 s 81 …. 13.12, 13.1 s 81(2)(b) …. 13.11 s 81A(1) …. 12.12 s 81A(2) …. 12.12 s 81B(1) …. 12.12 s 81B(3) …. 12.12 s 83 …. 10.47 s 84 …. 12.50 s 84(1) …. 13.9 s 85 …. 12.58 s 85(1A) …. 12.35 s 85(1AA) …. 12.35 s 85(1B) …. 12.35 s 85(2) …. 12.35 s 85(3) …. 12.35 s 85(4) …. 12.35 s 85(5) …. 12.35 s 86(1) …. 13.41, 13.44 s 86(2) …. 13.41, 13.65 s 86A(1) …. 13.61 s 87(1) …. 12.36 s 87(2) …. 12.36 s 87(3) …. 12.36 s 87(4) …. 12.36 s 88 …. 12.36 s 95 …. 10.80 Trustee and Guardian Act 2009 …. 11.12 s 11(1)(b) …. 10.6 s 19 …. 11.62 s 23(1) …. 10.35

s 25(1) …. 10.35 s 25(4) …. 10.35 s 26(1) …. 11.116 s 26(2) …. 11.116 s 26(3) …. 11.116 s 27(1) …. 11.117 s 27(2) …. 11.117 s 27(3) …. 11.117 s 28 …. 11.117 s 31(1) …. 11.114 s 31(2) …. 11.114 s 31(3) …. 11.114 s 32 …. 12.35 s 54(1) …. 11.12 s 54(2) …. 11.12 s 54(3) …. 11.12 s 83 …. 7.36, 7.41 s 111 …. 13.74 s 111(2) …. 13.75 Trustee and Guardian Regulation 2008 Pt 2 …. 13.75 reg 35(1) …. 11.116, 11.117 reg 35(2) …. 11.117 reg 35(3) …. 11.114 reg 36A…. 11.114 Trustee and Wills (Emergency Provisions) Act 1940 …. 21.31 Trustee Companies Act 1964 s 4 …. 10.6 s 5 …. 10.61 s 6(1) …. 10.61 s 8 …. 10.6 s 15 …. 10.74 s 15A(1) …. 11.116 s 15A(2) …. 11.116 s 15A(3) …. 11.116 s 15AA(1) …. 11.117

s 15AA(2) …. 11.117 s 15AA(3) …. 11.117 s 15AB …. 11.117 s 18 …. 13.76 s 18(3) …. 13.77 Trustee Companies Regulation 2016 …. 11.117 reg 4(1) …. 11.116, 11.117 Underwood’s Estate Act 1873 …. 21.25 Underwood’s Estate Act Amendment Act 1874.… 21.25 Uniform Civil Procedure Rules 2005 r 4.4 …. 17.52 r 7.10 …. 11.54 r 13.4 …. 17.19 r 42.4(1) …. 23.35 r 42.5(a) …. 23.4 r 42.25(2) …. 23.2 r 54.3 …. 12.46, 13.34 Wills Execution Act 1853 …. 21.24 Wills, Probate and Administration Act 1898 …. 4.31, 21.26 Pt 2 Div 2A …. 9.1 s 41A …. 17.11 Wills, Probate and Administration (Amendment) Act 1932 …. 21.32 Wills, Probate and Administration (Amendment) Act 1977 …. 14.53 Wills, Probate and Administration (Amendment) Act 1989 …. 4.21 Wilson’s Estate Act 1861 …. 21.25

NORTHERN TERRITORY Administration and Probate Act 1969 …. P.14 Pt III Div 4 …. P.13, 9.1 Pt III Div 4A …. P.13, 9.1, 14.53 Pt III Div 5 …. P.13, 9.1 Pt V …. 22.8, 22.15 Pt VA …. 22.20 s 6(1) …. 11.39, 11.48, 11.114, 11.116 s 8(6) …. 22.30

s 14(1) …. 11.1, 22.4 s 14(2) …. 11.1, 22.4 s 15(1) …. 11.10 s 15(2) …. 11.10 s 16 …. 11.108 s 16(1)(a)–(c) …. 11.10 s 16(1)(d) …. 11.10 s 16(1)(e) …. 11.10 s 16(3) …. 11.10 s 16(6) …. 11.10 s 16(7) …. 11.10 s 17 …. 11.30 s 17(1) …. 11.2 s 17(2) …. 11.2 s 19 …. 11.36 s 21 …. 11.70 s 22(3) …. 11.44 s 23 …. 11.63 s 24A …. 14.50 s 26(1) …. 11.94, 11.102 s 26(2) …. 11.62, 11.63 s 26(3) …. 11.62 s 26(4) …. 11.62 s 27 …. 11.62 s 27(5) …. 14.64 s 30(2) …. 11.44 s 32 …. 22.22 s 32(1) …. 11.49 s 32(2) …. 11.49 s 33 …. 11.39 s 34 …. 11.39 s 35 …. 11.48 s 36 …. 11.48 s 37(1) …. 11.48 s 37(2) …. 11.48 s 38 …. 11.48

s 39 …. 11.48 s 40 …. 11.112 s 41(1) …. 11.104 s 41(3) …. 11.105 s 41(4) …. 11.105 s 42(1)(a) …. 11.103 s 42(1)(b) …. 11.103 s 42(2) …. 11.103 s 43(1)(a) …. 11.108 s 43(1)(b) …. 11.108 s 43(1)(c) …. 11.108 s 43(1)(d) …. 11.108 s 43(1)(e) …. 11.108 s 43(2)(a) …. 11.108 s 44 …. 11.24 s 45 …. 22.16 s 46(1) …. 22.15 s 46(2) …. 22.15 s 46(3) …. 22.16 s 46(4) …. 22.23 s 46(6) …. 22.30 s 47 …. 22.17 s 48(1) …. 22.18 s 48(2) …. 22.19 ss 48B–48F …. 22.20 s 49 …. 9.10, 9.11, 11.71, 11.80 s 50(1) …. 11.77 s 50(2) …. 11.77 s 51 …. 11.77 s 52 …. 9.11, 11.69, 11.80, 11.81 s 53 …. 11.81 s 54(1) …. 11.69 s 55(1) …. 11.69, 14.1, 14.3 s 55(2) …. 14.1 s 56(1) …. 14.1 s 57(1) …. 14.3

s 57(2) …. 14.10 s 58 …. 14.42 s 59 …. 11.70 s 60 …. 9.13, 11.69 s 61(1) …. 9.1, 9.42 s 61(2)(b) …. 9.28 s 62 …. 9.11 s 63(1) …. 9.26 s 63(2) …. 9.26 s 63(3) …. 9.26 s 64 …. 9.17, 11.84 s 65 …. 9.22 s 66(1) …. 9.39 s 66(2) …. 9.42 s 66(3) …. 9.40 s 66(5) …. 9.43 s 67(2) …. 9.42 s 67(3) …. 9.42 s 68(1) …. 9.40 s 68(3) …. 9.73 s 70 …. 9.43 s 70(3)(a) …. 9.40 s 70(3)(b) …. 9.40 s 70(4)(a) …. 9.41 s 70(4)(b) …. 9.41 s 70(6) …. 9.40 s 71(1)(a) …. 9.78 s 71B(1) …. 9.78 s 71B(2) …. 9.78 s 71C …. 9.78 s 71D …. 9.78 s 71E(1) …. 9.78 s 71E(2) …. 9.78 s 71E(3) …. 9.78 s 71F(1) …. 9.78 s 71F(2) …. 9.78

s 72(1) …. 9.57 s 72(2) …. 9.57 s 73(1) …. 9.57 s 73(2) …. 9.57 s 73(3) …. 9.57 s 73(4) …. 9.57 s 73(5) …. 9.57 s 73(6) …. 9.57 s 74 …. 9.57 s 75 …. 9.59 s 76 …. 9.59 s 77(1) …. 9.58 s 77(2) …. 9.59 s 77(3) …. 9.58 s 77(4) …. 9.58 s 78 …. 9.58 s 79(1) …. 9.57 s 79(2) …. 9.57 s 80(7) …. 11.92 s 81 …. 9.57 s 87(2) …. 14.15 s 87(3) …. 14.15 s 94 …. 11.109 s 95 …. 11.108, 11.109 s 96 …. 17.51 s 96(1) …. 14.53 s 96(2) …. 14.53 s 96(3) …. 14.53 s 97(1) …. 14.54 s 97(2) …. 14.54 s 98(1) …. 14.46 s 98(2) …. 14.46 s 99 …. 14.46, 14.55 s 106 …. 11.3 s 108(1) …. 11.3 s 108(2) …. 11.3

s 110 …. 11.3 s 110A(1) …. 11.114 s 110A(2) …. 11.114 s 110A(3) …. 11.114 s 110A(4) …. 11.114 s 110A(5) …. 11.114 s 110A(6) …. 11.114 s 110A(8) …. 11.114 s 110B(1) …. 11.114, 11.116 s 110B(2) …. 11.116 s 110B(3) …. 11.116 s 110B(5) …. 11.117 s 110B(6) …. 11.114, 11.116 s 110C(1) …. 11.117 s 110C(2) …. 11.117 s 110C(3) …. 11.117 s 110C(6) …. 11.117 Sch 4 Pt I …. 14.3 Sch 4 Pt II …. 14.10 Sch 6 …. 9.39 Sch 6 Pt I …. 9.39 Sch 6 Pt II …. 9.39 Sch 6 Pt III …. 9.39 Sch 6 Pt IV …. 9.39 Administration and Probate Regulations 1983 reg 2A(1) …. 11.3 reg 2A(3) …. 11.114 reg 2A(4) …. 11.114, 11.116 reg 2B …. 11.114 reg 3(1) …. 9.40 reg 3(2) …. 9.41 Adoption of Children Act 1994 s 19A(4) …. 16.13 s 45 …. 8.54, 9.25, 16.13 Aged and Infirm Persons’ Property Act 1979 s 22 …. 7.41

Cemeteries Act 1952 s 18 …. 12.8 Companies (Trustees and Personal Representatives) Act 1981 s 14(1) …. 10.6 s 14(2) …. 10.6 s 15 …. 10.61 s 16(1) …. 10.61 s 16(2) …. 10.61 s 17 …. 10.61 s 21(1) …. 10.74 s 27 …. 13.76 s 27(7) …. 13.77 s 29 …. 11.63 De Facto Relationships Act 1991 s 3(1) …. 9.39, 16.13 s 3A(1) …. 16.13 s 3A(2) …. 16.13 s 3A(3) …. 16.13 Electronic Transactions (Northern Territory) Act 2000 s 9 …. 4.6 Evidence (National Uniform Legislation) Act 2011 s 59 …. 19.36 s 60 …. 19.36 s 63 …. 19.36 s 92(1)(b) …. 11.29 s 117(1) …. 24.2 s 121(1) …. 24.2 s 140(2) …. 4.52 Family Provision Act 1970 …. P.15, 15.5 s 4(1) …. 16.13, 17.22, 20.39, 20.50 s 7(1) …. 16.13 s 7(1)(a) …. 18.1 s 7(1)(b) …. 18.13 s 7(1)(c) …. 18.1 s 7(1)(d) …. 18.45 s 7(1)(e) …. 18.36

s 7(1)(f) …. 18.50 s 7(2)(a) …. 16.13, 18.13 s 7(2)(b) …. 16.12 s 7(3) …. 16.12 s 7(4) …. 16.12 s 7(7) …. 16.12, 16.13 s 7(8) …. 16.13 s 8(1) …. 15.8 s 8(1) …. 16.4, 17.2, 17.4, 17.58, 17.59 s 8(2) …. 19.2 s 8(3) …. 19.2, 19.9 s 8(4) …. 17.16 s 9(1) …. 17.22 s 9(2) …. 17.23 s 9(3) …. 17.23 s 9(4) …. 17.43 s 10(1) …. 17.10 s 10(2) …. 17.10 s 11(1) …. 20.15 s 11(2) …. 20.13 s 11(3) …. 20.13 s 12(1) …. 20.18 s 12(2) …. 20.18 s 12(3) …. 20.18 s 12(4) …. 20.18 s 15(1) …. 20.19 s 15(2) …. 20.19 s 16(1) …. 20.10 s 16(2) …. 20.10 s 17(1) …. 20.50 s 17(2) …. 20.48 s 17(3) …. 20.50 s 17(4) …. 20.50 s 18 …. 20.12 s 19 …. 20.31 s 20 …. 17.43, 20.39

s 21 …. 17.51 s 22(1) …. 19.35 s 22(2) …. 19.35 s 22(3) …. 19.37 Interpretation Act 1978 s 19A(1) …. 9.39, 16.13 s 26 …. 4.5 Land Title Act 2000 s 129(2) …. 11.122 Law of Property Act 2000 s 18 …. 3.22 s 18(1) …. 3.23 s 18(2) …. 3.23 s 18(3) …. 3.23 s 18(4)(a) …. 3.23 ss 19–26 …. 3.1 s 19(3) …. 3.21 s 19(4) …. 3.5 s 20 …. 3.3 s 20(1) …. 3.3 s 20(2) …. 3.4 s 20(3) …. 9.43, 9.46 s 21(a)–(c) …. 3.4 s 21(b) …. 3.16 s 21(d) …. 3.3 s 22 …. 8.74 s 23(1)(a) …. 3.4 s 24 …. 3.21 ss 37–45 …. 13.7 s 62 …. 1.37, 11.91 s 215 …. 11.7 s 216(1) …. 11.87, 11.88 s 216(2)(a) …. 11.84, 11.88 s 216(2)(d) …. 11.88 s 218 …. 14.59 Law Reform (Miscellaneous Provisions) Act 1956

s 5(1) …. 12.20 s 5(2) …. 12.20 s 6 …. 12.20 s 6(1)(a) …. 12.20 s 7 …. 12.20 s 8 …. 12.20 Limitation Act 1981 s 4(1) …. 12.59 s 12(1)(a) …. 12.59 s 12(1)(b) …. 12.59 s 32(1)(c) …. 12.59 s 32(1)(d) …. 12.59 s 32(1)(e) …. 12.59 s 33(a) …. 12.59 Public Trustee Act 1979 s 32(1)(a) …. 10.6 s 32(1)(b) …. 10.6 s 33(1) …. 10.76 s 34(1) …. 10.36 s 34(3) …. 10.36 s 34(4) …. 10.36 s 39(1) …. 10.36 s 74 …. 13.74 s 74(1) …. 13.75 s 74(2) …. 13.75 s 96 …. 11.63 Rules of Professional Conduct and Practice r 8.1.2 …. 24.21 r 9.1 …. 24.17 r 9.2 …. 24.23 r 9.3 …. 24.23 Stamp Duty Act 1978 s 4(1) …. 10.57 Sch 2 …. 10.57 Status of Children Act 1978 …. 14.37, 14.53 Pt IIIA …. 8.56

s 4 …. 8.53, 9.23 s 7 …. 14.53 s 11 …. 16.5 Supreme Court Rules 1987 r 1.10 …. 23.36 r 16.03(1) …. 11.54 r 23.03 …. 17.19 r 48.13(1) …. 20.37 r 54.02 …. 12.46, 13.34 r 63.03(1) …. 23.23 r 63.19 …. 23.38 r 63.29(2) …. 23.4 r 78.04 …. 14.40 r 88.05(1)(a) …. 11.30 r 88.13 …. 10.59 r 88.24(5) …. 11.63 r 88.27 …. 12.12 r 88.28 …. 10.10 r 88.28(1) …. 11.45 r 88.29(1) …. 11.45 r 88.29(3) …. 11.45 r 88.30 …. 11.45 r 88.62(1) …. 11.25, 11.27 r 88.62(2) …. 11.27 r 88.64(1) …. 11.27 r 88.64(2) …. 11.27 r 88.65 …. 11.27 r 88.66 …. 11.27 r 88.70 …. 11.27 Testator’s Family Maintenance Ordinance 1929 …. 15.5 Transplantation and Anatomy Act 1979 Pt 3 …. 12.8 Trustee Act 1893 s 5 …. 12.24 s 6(1)(a) …. 12.3 s 11 …. 10.45

s 11(7) …. 10.42, 10.77 s 12 …. 10.77 s 14(1) …. 13.6 s 15 …. 13.6 s 20 …. 10.6 s 21 …. 13.29 s 22 …. 14.53 s 22(1) …. 14.53 s 22(1)(a)–(c) …. 10.28 s 22(1)(d) …. 10.28 s 22(2) …. 10.28, 14.54 s 22(2A) …. 10.28 s 22(3) …. 10.22, 14.55 s 26 …. 12.54, 13.40 s 27(3) …. 10.42, 10.77 s 28 …. 10.58 s 29 …. 10.59 s 30(1) …. 10.10 s 31(1) …. 10.12 s 31(2) …. 10.12 s 34(5) …. 10.36 s 39(2) …. 10.36 s 41(1) …. 10.73 s 44 …. 10.80 s 49A …. 12.58 s 50 …. 13.41 s 54(2) …. 13.5 s 80(1) …. 13.5 s 80(7) …. 13.5 s 81(1) …. 13.19 s 81(2) …. 13.19 s 81(3) …. 13.19 s 81(4) …. 13.19 s 81(5) …. 13.19 s 81(8) …. 13.19 s 81(9) …. 13.19

s 81(10) …. 13.19 s 81(11) …. 13.19 s 81(12) …. 13.19 s 81(13) …. 13.19 s 81(14) …. 13.19 s 82 …. P.16, 13.7, 13.39 s 82(d) …. 13.7 s 83(1)(a) …. 13.11 s 83(1)(b) …. 13.26 s 83(2) …. 13.11, 13.26 s 84 …. 13.7 s 85 …. 13.14 s 88 …. 12.50 s 89 …. 12.37 s 91 …. 12.37 s 91(1) …. 12.36 s 91(2) …. 12.36 s 91(3) …. 12.36 s 91(4) …. 12.36 s 92 …. 12.36, 12.37 s 102(1) …. 13.44 s 102(2) …. 13.65 Trustee Act 1907 s 3 …. 12.27 Unit Title Schemes Act 2009 …. 9.57 Unit Titles Act 1975 …. 9.57 Wills Act 1938 …. P.12 Wills Act 2000 …. 4.21 Div 4A …. 9.77 s 6(1) …. 9.78 s 8 …. 4.1 s 8(1)(b) …. 4.13 s 8(1)(c) …. 4.15 s 8(2) …. 4.15 s 8(3)(a) …. 4.9 s 8(3)(b) …. 4.8

s 8(4) …. 4.19 s 9 …. 4.16 s 10 …. 4.31 s 10(1) …. 4.36 s 10(2) …. 4.36, 4.52 s 10(3) …. 4.51 s 11 …. 4.13 s 12(1) …. 4.58 s 12(2)(a) …. 4.58 s 12(2)(b) …. 4.59 s 12(2)(c) …. 4.59 s 13 …. 5.1, 5.2 s 13(d) …. 5.8 s 13(e) …. 5.9 s 13(f) …. 5.15 s 14 …. 5.23 s 14(2)(a) …. 5.31 s 14(2)(b) …. 5.33, 5.34 s 14(3) …. 5.31 s 14(4) …. 5.31 s 15 …. 5.35 s 15(3) …. 5.36 s 15(4) …. 5.36 s 15(5) …. 5.37 s 15(6) …. 5.38 s 16 …. 5.42 s 16(1)(a) …. 5.46 s 16(2) …. 5.46 s 16(3) …. 5.48 s 17(1) …. 6.13 s 17(2) …. 6.13 s 17(3) …. 6.13, 6.19 s 17(4) …. 6.13, 6.19 s 29 …. 4.5, 6.6, 7.29, 8.67 s 30 …. 7.10 s 30(1) …. 7.10

s 31 …. 8.44 s 31(1) …. 8.44 s 31(2) …. 8.44 s 31(3) …. 8.44 s 34 …. 7.13 s 35 …. 8.76 s 36 …. 8.72 s 37 …. 8.73 s 40(1) …. 7.19 s 40(2) …. 7.19 s 40(3) …. 7.19 s 40(4)(a) …. 7.19 s 40(4)(b) …. 7.19 s 40(5) …. 7.19 s 41(1) …. 7.11, 8.75 s 41(2) …. 7.11, 8.75 s 41(3) …. 7.11 Wills Amendment (International Wills) Act 2013 …. 22.20

QUEENSLAND Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 s 56 …. 9.79 s 60 …. 9.77 s 60(1) …. 9.78 s 60(2) …. 9.78 s 60(4) …. 9.79 Acts Interpretation Act 1954 …. 9.63 s 5AA(2)(c) …. 18.13 s 5AA(2)(c)(ii) …. 18.13 s 5AA(4)(b) …. 18.13 s 32DA …. 9.44, 16.38 s 32DA(1) …. 16.38 s 32DA(2) …. 16.38 s 32DA(3) …. 16.38

s 32DA(4) …. 16.38 s 32DA(5)(a) …. 16.38 s 32DA(5)(b) …. 16.38 s 36 …. 4.5, 4.36 s 40 …. 18.36, 18.45, 18.50 s 41 …. 18.50 s 41(1) …. 18.1, 18.13, 18.36, 18.45 Sch 1 …. P.8, 9.44, 9.63, 16.38 Adoption Act 2009 s 214 …. 8.54 ss 214–218 …. 9.25 Australian Solicitors’ Conduct Rules …. 24.23 r 12.2 …. 24.21 r 12.4.1 …. 24.17 r 12.4.2 …. 24.23 Child Protection Act 1999 …. 16.4 Civil Partnerships Act 2011 …. 16.38 s 6 …. 5.23 s 9 …. 5.23 s 18 …. 16.38 s 43 …. 20.37 s 44 …. 20.37 Cremations Act 2003 s 7 …. 12.8 s 8 …. 12.8 Curator of Intestate Estates Act 1867 …. 21.54 Declaratory Act 1919 …. 21.59 Duties Act 2001 …. 9.66 s 17(2) …. 9.66 s 124 …. 10.57 Electronic Transactions (Queensland) Act 2001 s 14 …. 4.6 Evidence Act 1977 s 64 …. 11.29 s 92 …. 19.35 Guardianship and Administration Act 2000

s 60 …. 7.41 Hire-purchase Act 1959 s 2(1) …. 9.45 Intestacy Act 1877 …. 21.55 s 28 …. 9.22 Justice and Other Legislation Amendment Act 2013 …. 22.20 Justice and Other Legislation (Miscellaneous Provisions) Act 1997 …. 16.39 Land Title Act 1994 s 111(1) …. 11.122 s 111(2) …. 11.122 s 112 …. 11.122 Limitation of Actions Act 1974 s 5(1) …. 12.59 s 10(1)(a) …. 12.59 s 27(1) …. 12.59 s 27(2) …. 12.59 s 28 …. 12.60 Manufactured Homes (Residential Parks) Act 2003 s 10 …. 9.63 s 13 …. 9.63 s 14 …. 9.63 Married Women’s Property Act 1890 …. 21.55 Probate Act 1867 …. 21.54 Powers of Attorney Act 1998 …. 7.40 s 107(1) …. 7.40 s 107(1A) …. 7.40 s 107(2) …. 7.40 s 107(3) …. 7.40 s 107(5) …. 7.40 s 109A …. 7.40 Property Law Act 1974 s 20(5) …. 9.46 s 22 …. 8.74 ss 37–43 …. 13.7 s 59 …. 1.37, 11.91 Public Curator Act 1915 …. 21.61, 21.64

Public Trustee Act 1978 s 17 …. 13.74 s 17(1) …. 13.75 s 17(3) …. 13.75 s 17(4) …. 13.75 s 27(1) …. 10.6 s 29 …. 10.68 s 29(1)(a) …. 10.36 s 29(1)(b)(i) …. 10.6 s 29(1)(b)(ii)–(iv) …. 10.36 s 29(1)(b)(v) …. 10.36 s 29(1)(b)(vi) …. 10.36 s 29(2) …. 10.36 s 29(4)(a) …. 10.36 s 30(1) …. 11.116 s 30(2) …. 11.117 s 33(1) …. 11.116, 11.117 s 31(2) …. 10.76 s 31(2A) …. 10.76 s 33(2) …. 11.117 s 33(3) …. 11.117 s 35 …. 11.114 s 36(1) …. 11.77 s 36(2) …. 11.77 s 36(3)–(6) …. 11.77 s 43 …. 10.79 s 89 …. 7.41 Residential Tenancies and Rooming Accommodation Act 2008 s 7 …. 9.63 Status of Children Act 1978 …. 14.37, 14.53 Pt 3 Div 2 …. 8.56 s 6 …. 8.53, 9.23, 14.53 s 10 …. 16.5 Succession Act 1867 …. 21.54 Succession Act 1906 …. 21.59 Succession Act 1981 …. 3.16, 11.60

Pt 2 …. P.12 Pt 2 Div 6 …. 22.8, 22.15 Pt 2 Div 6A …. 22.20 Pt 3 …. P.13, 9.1 Pt 4 …. P.15 Pt 5 …. P.14, 15.5, 16.39, 17.53, 22.16 s 4 …. 17.2 s 5 …. 4.36, 7.9 s 5A …. 8.55, 16.37 s 5AA(1) …. 9.44, 9.63, 16.38 s 5AA(2) …. 16.38 s 5AA(4)(a) …. 16.38 s 5AA(4)(b) …. 16.38 s 6 …. 11.11, 11.95 s 6(1) …. 11.1, 11.94 s 6(2) …. 11.1, 22.4 s 6(4) …. 11.1 s 9(a) …. 4.31, 4.32 s 10 …. 4.1 s 10(3) …. 4.13 s 10(4) …. 4.15 s 10(5) …. 4.16 s 10(6) …. 4.8 s 10(7) …. 4.9 s 10(9) …. 4.19 s 10(10) …. 4.13 s 10(12) …. 22.30 s 11(1) …. 4.58 s 11(2) …. 4.58 s 11(3)(a) …. 4.58 s 11(3)(b) …. 4.59 s 11(3)(c) …. 4.59 s 11(4)(b) …. 4.55, 4.58 s 12(1) …. 4.60 s 12(2) …. 4.60 s 12(3) …. 4.60

s 13 …. 5.1, 5.2 s 13(d) …. 5.8 s 13(e)(i) …. 5.9 s 13(e)(ii) …. 5.15 s 14 …. 5.23 s 14(2)(a) …. 5.31 s 14(2)(b) …. 5.34 s 14(2)(c) …. 5.33 s 14(3)(a) …. 5.31 s 14(3)(b) …. 5.31 s 14A …. 5.23 s 14A(2)(a) …. 5.31 s 14A(2)(b) …. 5.34 s 14A(3)(a) …. 5.31 s 14A(3)(b) …. 5.31 s 15 …. 4.55, 5.35 s 15(1) …. 5.36 s 15(2) …. 5.37 s 15(3) …. 5.36 s 15(4) …. 5.38 s 15A …. 5.35 s 15A(1) …. 5.36 s 15A(2) …. 5.37 s 15A(3) …. 5.36 s 15A(4) …. 5.38 s 16 …. 5.42 s 16(1)(a) …. 5.46 s 16(2) …. 5.48 s 16(3) …. 5.46 s 17(1) …. 6.13 s 17(2) …. 6.13, 6.19 s 17(3) …. 6.13, 6.19 s 17(4) …. 6.13 s 18 …. 4.31 s 18(1) …. 4.36 s 18(2) …. 4.52

s 18(3) …. 4.51 s 19 …. 3.22 s 19(1) …. 3.23 s 19(2) …. 3.23 s 19(3) …. 3.23 s 19(3)(a) …. 3.5 s 20 …. 3.22 s 20(c) …. 3.23 ss 21–28 …. 3.1 s 21(2)(b) …. 3.21 s 21(3) …. 3.21 s 22 …. 3.3 s 22(1) …. 3.3 s 23 …. 3.4 s 24(a) …. 3.3 s 24(c)–(e) …. 3.4 s 24(d) …. 3.16 s 25(a) …. 3.4 s 26(1) …. 3.21 s 26(2) …. 3.21 s 33A …. 14.64 s 33B …. 7.13, 11.87 s 33C …. 8.44 s 33C(1) …. 8.44 s 33C(2) …. 8.44 s 33C(3) …. 8.44 s 33D …. 22.22 s 33E …. 4.5, 6.6, 7.29, 8.67 s 33G …. 7.10 s 33G(3) …. 7.10 s 33I …. 8.72 s 33J …. 8.76 s 33K …. 8.73 s 33N …. 7.19 s 33N(1) …. 7.19 s 33N(2) …. 7.19

s 33N(3)(a) …. 7.19 s 33N(3)(b) …. 7.19 s 33N(4) …. 7.19 s 33N(5) …. 7.19 s 33O(1) …. 7.11, 8.75 s 33O(2) …. 7.11 s 33P(1) …. 7.11, 8.75 s 33P(2) …. 7.11 s 33T(1) …. 22.15 s 33T(2)(a) …. 22.15 s 33T(2)(b) …. 22.16 s 33T(2)(c) …. 22.30 s 33T(2)(d) …. 22.23 s 33T(3) …. 22.30 s 33U …. 22.17 s 33V(1) …. 22.18 ss 33YA–33YE …. 22.20 s 33W …. 22.19 s 34(1) …. 9.1, 9.44 s 34(2) …. 9.28 s 34(3) …. 9.6 s 34A(1) …. 9.45 s 34A(2) …. 9.45 s 34A(3) …. 9.45 s 34B(1) …. 9.63 s 34B(2) …. 9.63 s 34B(3) …. 9.63 s 34B(4) …. 9.63 s 35(1) …. 9.44 s 35(1A) …. 9.45 s 35(2) …. 9.17 s 36 …. 9.44 s 36(2) …. 9.45 s 36A …. 9.45 s 37(1) …. 9.45 s 38 …. 9.11

s 39A(1) …. 9.63 s 39A(2) …. 9.63 s 39A(3) …. 9.63 s 39A(4)(a) …. 9.63 s 39A(4)(b) …. 9.63 s 39A(4)(c) …. 9.63 s 39A(5) …. 9.63 s 39A(7) …. 9.63 s 39B(1) …. 9.65 s 39B(2) …. 9.65 s 39B(4) …. 9.65 s 39B(5) …. 9.65 s 39B(6) …. 9.65 s 39C(1) …. 9.66 s 39C(2) …. 9.66 s 39C(3) …. 9.66 s 39C(4) …. 9.66 s 39C(5) …. 9.66 s 39C(3A) …. 9.66 s 39D(1) …. 9.64 s 39D(2) …. 9.64 s 39D(4) …. 9.64 s 39D(3) …. 9.64 s 40 …. 16.39, 16.40 s 40A(1) …. 16.39 s 40A(2) …. 16.39 s 40A(3) …. 16.39 s 41(1) …. 15.8, 16.4, 16.37, 17.4, 17.58, 17.59 s 41(2)(a) …. 17.2, 17.58 s 41(2)(b) …. 20.15 s 41(2)(c) …. 19.2, 19.9 s 41(3) …. 20.13 s 41(4) …. 20.19 s 41(5) …. 20.19 s 41(6) …. 17.16, 17.17 s 41(7) …. 16.4

s 41(8) …. 17.11, 17.22, 17.23, 17.53 s 41(9) …. 16.5 s 41(10) …. 20.12 s 41(11) …. 20.31 s 41(12) …. 20.4 s 42(1) …. 20.53 s 42(1A) …. 20.53 s 42(2) …. 20.53 s 43(1) …. 20.14 s 44(1) …. 17.53 s 44(2) …. 17.56 s 44(3) …. 17.53 s 44(4) …. 17.53 s 44(5) …. 17.53 s 45(1) …. 9.10, 9.11, 11.71, 11.81, 11.89 s 45(2) …. 9.11, 11.69, 11.89 s 45(3) …. 11.71 s 45(4) …. 11.81 s 45(4A) …. 11.76 s 45(6) …. 11.76 s 46 …. 11.41 s 46(1) …. 11.71 s 49(1) …. 9.13, 11.69 s 49(3) …. 11.81 s 49(4) …. 11.92 s 49A(1) …. 14.50 s 49A(2) …. 14.50 s 49A(3) …. 14.50 s 49A(4) …. 14.50 s 49A(5) …. 14.50 s 49A(6) …. 14.50 s 51 …. 11.60 s 52(1) …. 14.29 s 52(1)(a)–(d) …. 12.1 s 52(1)(d) …. 14.28 s 52(1)(e) …. 14.32, 14.40

s 52(1A) …. 14.28, 14.40 s 53(1) …. 11.109 s 53(2) …. 11.109 s 53(3) …. 11.110 s 53(4) …. 11.111 s 53(5) …. 11.111 s 53(6) …. 11.112 s 55 …. 7.10, 14.5 s 56(1) …. 11.69, 14.1 s 57 …. 14.10 s 58(1) …. 14.14 s 58(2)(a) …. 14.14 s 58(2)(b) …. 14.14 s 59(1) …. 14.5 s 59(2) …. 14.5 s 59(3) …. 14.5 s 60 …. 14.5 s 61(1) …. 14.8 s 61(2) …. 14.9 s 62 …. 14.50 s 65 …. 11.85 s 67(4) …. 14.62 s 68 …. 14.58 s 69 …. 11.2 s 109 …. 14.63 s 113 …. 14.63 s 113(3) …. 14.63 Sch 2 …. 9.44 Sch 2 Pt I …. 9.44 Sch 2 Pt II …. 9.44 Succession Act Amendment Act 1895 …. 21.58 Succession Act Amendment Act 1942 …. 21.62, 21.63 Succession Act Declaratory Act 1884 …. 21.55 Succession Amendment Act 2006 …. 4.21, 4.32, 9.75 Succession and Probate Duties Act 1892 …. 21.57 Succession Duties Act 1886 …. 21.57

Supreme Court Rules 1900 O 4 r 12 …. 13.34 Testator’s Family Maintenance Act 1914 …. 15.5, 21.60 s 3(8) …. 17.11 Transplantation and Anatomy Act 1979 Pt 3 …. 12.8 Pt 5…. 12.8 Trustee Companies Act 1968 s 4(2) …. 10.61 s 4(3) …. 10.61 s 4(4) …. 10.61 s 5(1) …. 10.6 s 6(1) …. 10.61 s 7(1) …. 10.61 s 9(1) …. 10.61 s 9(2) …. 10.61 s 9(4) …. 10.61 s 10 …. 10.6 s 12(1) …. 11.116 s 12(2) …. 11.116 s 12(7) …. 11.117 s 20(1) …. 10.74 s 20(2) …. 10.74 s 26 …. 10.79 s 41 …. 13.76 s 41(4) …. 13.77 Trusts Act 1973 …. 11.1 s 4(4) …. 13.6 s 5(1) …. P.16, 12.59, 13.5, 13.67, 13.73 s 6(1) …. 13.34 s 10 …. P.4 s 12 …. 10.45 s 12(9) …. 10.42, 10.77 s 14 …. 10.77 s 16(2) …. P.4 s 16(3)–(8) …. P.4

s 18 …. 10.59 s 20 …. 10.74 s 21 …. 12.24 s 22(1)(a) …. 12.3 s 31(1) …. 12.27, 13.9, 13.20 s 32(1)(a) …. 13.5, 13.6, 13.9 s 32(1)(b) …. 13.7, 13.9 s 32(1)(c) …. 13.11 s 33(1)(l) …. 13.20 s 33(1)(l)(ii) …. 13.20 s 33(1)(n) …. 13.20 s 34 …. 10.36 s 34(1) …. 13.36 s 35 …. 13.36 s 37 …. 13.36 s 44 …. 13.29 s 44(a)–(c) …. 13.29 s 44(d)–(f) …. 13.29 s 45 …. 13.9 s 46 …. 10.58 s 47(1) …. 10.84 s 47(1A) …. 10.84 s 47(2) …. 10.84 s 47(3) …. 10.84 s 47(4) …. 10.85 s 47(5) …. 10.84 s 48(1) …. 10.14 s 49(1) …. 10.48 s 50 …. 12.1 s 52(1)(a)–(d) …. 12.1 s 52(2) …. 12.51 s 52A …. 12.52 s 54 …. 10.20, 12.28 s 54(1) …. 10.20 s 54(2) …. 10.16 s 56 …. 12.27

s 56(1) …. 12.27 s 57(1) …. 13.27 s 57(2) …. 13.27 s 66(1) …. 12.20, 14.46 s 66(2) …. 14.46 s 66(2)–(2B) …. 12.20 s 66(2)(b) …. 12.20 s 66(3) …. 12.20 s 67(1) …. 14.57 s 67(2) …. 14.57 s 67(3) …. 14.57 s 68 …. 13.44, 13.67, 14.58 s 71 …. 12.54 s 72 …. 13.40 s 76 …. 12.58 s 77 …. 13.41 s 78 …. 14.42 s 79 …. 13.67 s 80(4) …. 10.42, 10.77 s 94 …. 13.1 s 96 …. 13.34 s 97 …. 13.34 s 101(1) …. 13.67 s 101(2) …. 13.73 s 102 …. 10.80 Uniform Civil Procedure Rules 1999 r 5 …. 23.22, 23.36 r 11(a) …. 12.46 r 72(2) …. 11.54 r 293 …. 17.19 r 601 …. 11.2, 11.30 r 601(1) …. 11.2 r 601(2) …. 11.2 r 603(1) …. 10.29 r 603(2) …. 10.29 r 603(3) …. 10.29

r 610(1) …. 10.29 r 610(3) …. 10.29 r 611 …. 10.12 r 611(1) …. 11.48 r 611(2) …. 11.48 r 624(1) …. 11.24 r 624(4) …. 11.27 r 626 …. 11.27 r 627 …. 11.27 r 638 …. 11.49 r 638(5) …. 11.49 r 639 …. 10.10 r 639(2) …. 11.45 r 642 …. 11.105 r 642(1)(b) …. 10.73 r 643 …. 12.50 r 644(1) …. 12.34 r 644(2) …. 12.34 r 644(4) …. 12.34 r 645(1) …. 12.34 r 645(3) …. 12.34 r 646(1) …. 13.44 r 647(1) …. 12.34 r 647(2) …. 12.34 r 647(3) …. 12.34 r 648(1) …. 12.34 r 650(1) …. 12.34 r 650(2) …. 12.34 r 650(6) …. 12.34 r 650(7) …. 12.34 r 651(1) …. 12.34 r 681(1) …. 23.23 r 696 …. 23.38 r 703(2) …. 23.4 Wills (Soldiers, Sailors and Members of the Air Force) Act 1940 …. 21.62

SOUTH AUSTRALIA Acts Interpretation Act 1915 …. 4.36 s 4(1) …. 4.5, 4.36 Administration and Probate Act 1891 …. 21.36, 21.49 s 35.… 21.50 s 37.… 21.50 s 55 …. 11.48 Administration and Probate Act 1918 …. 21.50 Administration and Probate Act 1919 …. P.14, 21.52 Pt 3A …. P.13, 9.1 s 4 …. 11.120 s 5 …. 11.1, 11.11, 11.94 s 7A(1) …. 11.2 s 8 …. 11.2 s 9(1)–(3) …. 11.1 s 9(7) …. 11.1 s 10 …. 11.1 s 11 …. 11.1 s 12 …. 11.1 s 23 …. 11.36 s 26(1) …. 11.24 s 29(2) …. 14.62 s 31(1) …. 11.64 s 31(2) …. 11.60 s 31(3) …. 11.64 s 31(4) …. 11.64 s 31(7) …. 11.64 s 31(8) …. 11.62 s 31(9) …. 11.64 s 31(10) …. 11.64 s 31(12) …. 11.64 s 33A …. 14.50 s 35 …. 11.41 s 37 …. 11.48 s 38 …. 11.48

s 39(1) …. 11.48 s 39(2) …. 11.48 s 40 …. 11.48 s 41 …. 11.48 s 42 …. 11.112 s 43(1) …. 11.111 s 43(2) …. 11.111 s 43(3) …. 11.111 s 45 …. 9.10, 9.11, 11.71, 11.80 s 46 …. 11.69 s 46(2) …. 9.13, 11.69, 14.1 s 46(3) …. 9.22 s 51(1) …. 11.69 s 52(1) …. 14.8 s 52(2) …. 14.9 s 52(3) …. 14.8 s 59(1) …. 14.16 s 59(3) …. 14.16 s 60 …. 14.14 s 60(1) …. 14.11 s 60(2) …. 14.11 s 60(3) …. 14.11 s 60(4) …. 14.11 s 60(5) …. 14.11 s 61(1) …. 14.11 s 62(a) …. 14.14 s 62(b) …. 14.14 s 65(1) …. 14.29 s 65(2) …. 14.29 s 65(2a) …. 14.29 s 65(3) …. 14.29 s 65(5) …. 14.29 s 66 …. 14.29 s 67(1) …. 14.29 s 67(2) …. 14.29 s 67(3) …. 14.29

s 67(5) …. 14.29 s 71(1) …. 11.120 s 71(1a) …. 11.120 s 71(3) …. 11.120 s 71(4) …. 11.120 s 72(1) …. 11.121 s 72(2) …. 11.121 s 72(3) …. 11.121 s 72B(1) …. 9.1, 9.47, 9.48, 9.67 s 72B(2) …. 9.28 s 72C …. 9.11 s 72E …. 9.17 s 72F …. 9.47 s 72G(1)(a) …. 9.47 s 72G(1)(b) …. 9.47 s 72G(1)(c) …. 9.47 s 72G(1)(d) …. 9.48 s 72G(1)(e) …. 9.48 s 72G(2) …. 9.47 s 72H(1) …. 9.47 s 72H(2) …. 9.47 s 72H(3) …. 9.47 s 72I …. 9.48 s 72J …. 9.48 s 72K(1) …. 9.73 s 72L(1) …. 9.67 s 72L(2) …. 9.67 s 72L(3) …. 9.67 s 72L(4) …. 9.67 s 72L(5) …. 9.67 s 72M(1)(b) …. 9.69 s 72N …. 9.6 s 120A …. 14.32 s 120A(1) …. 14.40 s 120A(4) …. 14.40 s 127(1) …. 14.14

s 127(2) …. 14.14 s 127(3) …. 14.14 Administration and Probate Act 1922 …. 21.51 Administration and Probate Act 1932 …. 21.51 Administration and Probate (Administration Guarantees) Amendment Act 2003 …. 11.64 Administration and Probate Regulations 2009 reg 3 …. 14.40 Administration and Probate (Removal of Requirement for Surety) Act 2014 …. 11.60, 11.62, 11.64 Adoption Act 1988 s 9 …. 9.25 s 9(1) …. 8.54, 16.43 Aged and Infirm Persons’ Property Act 1940 s 16A …. 7.41 Australian Solicitors’ Conduct Rules …. 24.23 r 12.2 …. 24.21 r 12.4.1 …. 24.17 r 12.4.2 …. 24.23 Burial and Cremation Act 2013 s 9(3) …. 12.8 Deceased Persons Debts Act 1879 …. 21.46 Deceased Persons Estates Act 1865 …. 21.42 Electronic Transactions Act 2000 s 9 …. 4.6 Evidence Act 1929 s 34C …. 19.35 Family Relationships Act 1975 …. 9.47, 10.37, 11.120, 14.37, 16.42, 16.43, 18.13 s 6 …. 8.53, 9.23 s 9 …. 16.5 s 10EA …. 8.56 s 10HB …. 16.43 s 11 …. 16.42 s 11A …. 16.42 s 11B …. 16.42

s 11B(2) …. 16.42 s 11B(3) …. 16.42 s 12 …. 14.53 Inheritance (Family Provision) Act 1972 …. P.15, 15.5, 16.43 s 4 …. 16.41, 16.42, 16.43, 17.2, 18.13, 20.39, 20.50 s 6 …. 16.41 s 6(a) …. 18.1 s 6(b) …. 18.13 s 6(ba) …. 18.1, 18.13 s 6(cc) …. 18.1 s 6(g) …. 16.43, 18.45 s 6(h) …. 18.36 s 6(i) …. 18.50 s 6(j) …. 18.50 s 7(1) …. 15.8, 16.4, 17.2, 17.4, 17.58, 17.59 s 7(1)(a) …. 22.38 s 7(2) …. 17.10 s 7(3) …. 19.2, 19.9 s 7(4) …. 17.58 s 7(6) …. 20.15 s 8(1) …. 17.22 s 8(2) …. 17.23 s 8(3) …. 17.23 s 8(4) …. 17.43 s 8(5) …. 17.43 s 8(7) …. 17.16 s 9(1)(a) …. 20.15 s 9(1)(b) …. 20.15 s 9(1)(c) …. 20.15 s 9(2) …. 20.13 s 9(3) …. 20.13 s 9(4) …. 20.12 s 9(5) …. 20.50 s 9(6) …. 20.50 s 9(7) …. 20.12, 20.39 s 9(8) …. 23.23

s 10(a) …. 20.10 s 10(b) …. 20.10 s 10A(1) …. 20.13 s 11(1) …. 20.19 s 11(2) …. 20.19 s 12 …. 20.48 s 13 …. 20.31 s 14(1) …. 17.55, 20.39 s 14(2) …. 17.55 s 14(3) …. 20.39 s 15(1) …. 20.14 Intestate Real Estates Distribution Act 1867 …. 21.44 Intestate Succession (Mother’s Share) Act 1920 …. 21.52 Law of Property Act 1936 s 26 …. 1.37, 11.91 ss 69–84 …. 13.7 s 115 …. 9.48 s 115(1) …. 9.48 Limitation of Actions Act 1936 s 3(1) …. 12.59 s 32(1) …. 12.59 s 32(1)(a) …. 12.59 s 35(a) …. 12.59 s 45 …. 12.59 s 46 …. 12.59 Powers of Attorney and Agency Act 1984 s 11A(1) …. 7.39 Probate and Succession Duties Act 1876 …. 21.45 Probate Rules 2004 r 10 …. 11.30 r 31 …. 10.30 r 32.01 …. 10.30 r 32.02 …. 10.30 r 35.03 …. 10.30 r 41 …. 10.12 r 42.01 …. 11.45

rr 42.01–42.03 …. 10.10 r 42.03 …. 11.45 r 42.04 …. 10.10 r 43.01 …. 11.36 r 44.01 …. 11.47 r 44.02 …. 11.47 r 44.03 …. 11.36 r 44.05 …. 11.47 r 45A(1) …. 11.47 r 48.03 …. 10.59 r 48.04 …. 10.59 r 48.06 …. 10.64, 10.66 r 48.07 …. 10.64 r 52.04 …. 11.27 r 70 …. 11.49 r 92 …. 13.44 Public Trustee Act 1995 s 3 …. 10.37 s 9 …. 14.11 s 9(1) …. 10.36 s 9(2) …. 10.37 s 9(3) …. 10.37 s 9(5) …. 10.37 s 9(7) …. 10.37 s 10 …. 11.64 s 12(1) …. 11.50 s 12(2) …. 11.49 s 14(1) …. 10.6 s 14(2) …. 10.6 s 14(4) …. 11.92 s 15(1) …. 10.76 s 15(3) …. 10.76 s 26(1) …. 12.38 s 45 …. 13.74 s 45(1) …. 13.75 s 45(2) …. 13.75

Public Trustee Regulations 2010 …. 13.75 Real Property Act 1886 s 176 …. 11.122 Stamp Duties Act 1923 Pt 2 cl 1 …. 10.57 Pt 2 cl 19 …. 10.57 s 4(1) …. 10.57 Sch 2 …. 10.57 Succession Duties (Killed in War) Act 1915 …. 21.45 Succession Duties (Peter Waite Benefactions) Act 1920.… 21.45 Supreme Court Act 1935 s 18 …. 11.1, 11.94 s 65(1) …. 20.37 Supreme Court Civil Rules 2006 r 3 …. 23.22, 23.36 r 76(2) …. 11.54 r 76(3)(b) …. 11.54 r 76(5) …. 11.54 r 206 …. 12.46, 13.34 r 232 …. 17.19 r 312(12)(b) …. 23.37 r 312(12)(c) …. 23.37 r 312(12)(d) …. 23.37 Survival of Causes of Action Act 1940 s 2(1) …. 12.20 s 2(2) …. 12.20 s 3 …. 12.20 s 3(1) …. 12.20 s 4 …. 12.20 s 5 …. 12.20 Testator’s Family Maintenance Act 1918 …. 15.5 Testamentary Causes Act 1867 …. 21.43, 21.48 Testator’s Family Maintenance Act 1918 …. 21.51 Testator’s Family Maintenance Act Amendment Act 1943.… 21.51 Transplantation and Anatomy Act 1983 Pt 3 …. 12.8

Pt 5…. 12.8 Trustee Act 1936 s 4 …. 12.38 s 4(1) …. P.16 s 6 …. 12.24 s 7(1)(a) …. 12.3 s 14 …. 10.45 s 14(7) …. 10.42, 10.77 s 15 …. 10.77 s 17(1) …. 12.27 s 20(1) …. 13.6 s 21 …. 13.6 s 23A …. 13.6 s 28(1) …. 13.29 s 28(2)(a)–(c) …. 13.29 s 28(2)(d) …. 13.29 s 28B …. 13.9 s 29(1) …. 14.57 s 29(2) …. 14.60 s 30(1) …. 14.46 s 30(2) …. 14.46 s 31(10) …. 13.12 s 33(1) …. 12.60 s 34 …. 10.12 s 35(1) …. 12.54 s 35(1A) …. 12.54 s 35(2) …. 13.40 s 36 …. 10.58 s 36(3) …. 10.42, 10.77 s 47 …. 10.80, 13.7, 13.39 s 47(d) …. 13.7 s 48 …. 13.7 s 51(1) …. 13.5 s 51(2) …. 13.5 s 56 …. 12.58 s 56(1) …. 12.38

s 56(2) …. 12.38 s 56A …. 12.38 s 57 …. 13.41 s 58(1) …. 12.38 s 58(2) …. 12.38 s 58(3) …. 12.38 s 59B …. 13.1 s 59B(2)(b) …. 13.11 s 63 …. 13.9 s 64(1)(a) …. 13.11 s 64(1)(b) …. 13.26 s 64(2) …. 13.11, 13.26 s 64(3) …. 13.11, 13.26 s 65 …. 10.79 s 69 …. 13.34 s 69(3) …. 12.51 s 69(4) …. 12.51 s 70(1) …. 13.44, 13.70 s 70(2)(a) …. 13.65 s 70(2)(b) …. 13.65 s 72C(2) …. 13.5 s 91 …. 13.34 s 121A(1) …. 12.12 s 121A(2) …. 12.12 s 121A(3) …. 12.12 s 121A(4) …. 12.12 s 121A(5) …. 12.12 Trustee Companies Act 1988 s 4 …. 10.6 ss 9–11 …. 13.76 s 12 …. 13.77 Wills Act 1936 …. P.12, 4.30, 21.42, 21.53 Pt 2 Div 5 …. 22.8 Pt 3 …. 22.15 Pt 3A …. 22.20 s 3(2) …. 6.2

s 4 …. 9.47 s 5 …. 22.4 s 6 …. 3.22 s 6(1) …. 3.23 s 6(2) …. 3.23 s 6(3) …. 3.23 s 6(4)(a) …. 3.23 s 7 …. 3.1 s 7(1) …. 3.3 s 7(3) …. 3.4 s 7(3)(b) …. 3.8 s 7(4) …. 3.4 s 7(5) …. 3.5 s 7(9) …. 3.21 s 8 …. 4.1, 4.8 s 8(b) …. 4.9 s 8(c) …. 4.13 s 8(d) …. 4.19 s 8(e) …. 4.15 s 10 …. 22.30 s 11 …. 4.21, 4.24 s 12(2) …. 4.2, 4.30, 4.52 s 17 …. 4.57 s 19 …. 22.8 s 20 …. 5.23 s 20(1) …. 5.33 s 20(2) …. 5.26 s 20A …. 5.35 s 20A(1)(a)–(c) …. 5.39 s 20A(2)(a) …. 5.40 s 20A(2)(b) …. 5.39 s 20A(2)(d) …. 5.35, 5.40 s 21 …. 5.2 s 22 …. 5.1, 5.2 s 22(c) …. 5.8 s 22(d) …. 5.9

s 23 …. 22.22 s 24 …. 5.42, 5.46, 5.48 s 25(1) …. 6.13 s 25(2) …. 6.13, 6.19 s 25(c) …. 22.23 s 25A(1) …. 22.16 s 25A(2) …. 22.17 s 25A(3) …. 22.18 s 25A(5) …. 22.19 s 25B …. 22.15 s 25C(a) …. 22.15 s 25C(b) …. 22.16 s 25C(d) …. 22.30 ss 25F–25J …. 22.20 s 27 …. 4.5, 6.6, 7.29, 8.67 s 28 …. 7.10 s 29 …. 8.72 s 30 …. 8.76 s 31 …. 8.73 s 35 …. 8.74 s 36 …. 7.24 Wills Act Amendment Act 1862 …. 21.42 Wills Act Amendment Act 1895 …. 21.50 Wills Act Amendment Act 1940 …. 21.53 Wills (International Wills) Amendment Act 2012 …. 22.20

TASMANIA Acts Interpretation Act 1931 s 24(b) …. 4.5 s 24(bb) …. 4.36 Administration and Probate Act 1935 …. P.14, 21.86 Pt V …. P.13, 9.1 s 3(1) …. P.8, 13.5 s 4(1) …. 11.71 s 4(3) …. 11.71

s 5(1) …. 11.30, 11.69, 11.71 s 8 …. 10.58 s 9 …. 10.64 s 10(1) …. 10.84 s 10(2) …. 10.84 s 10(3) …. 10.84 s 10(3A) …. 10.84 s 10(3B) …. 10.84 s 10(4) …. 10.85 s 12 …. 9.10, 11.71, 11.80 s 13A …. 11.44 s 14(1) …. 14.29 s 15 …. 11.70 s 16(1) …. 13.6 s 17 …. 13.6 s 18 …. 11.41 s 19(1) …. 11.49, 11.50 s 19(2) …. 11.49 s 20 …. 11.112 s 21(1) …. 11.48 s 21(3) …. 11.48 s 22 …. 11.38 s 25(1) …. 11.65 s 25(6) …. 11.65 s 25(7) …. 11.65 s 25A(7) …. 14.62 s 27(2) …. 13.40 s 28(1) …. 11.108 s 28(2) …. 11.109 s 29 …. 14.50 s 32(1) …. 11.69, 14.1, 14.3 s 32(2) …. 14.1 s 33(1) …. 13.5, 13.11 s 33(2) …. 11.29 s 34(1) …. 14.10 s 34(2) …. 14.14

s 34(3) …. 14.3 s 35(1) …. 14.8 s 35(2) …. 14.9 s 35(3) …. 14.8 s 36(1) …. 10.48 s 36(2) …. 10.48 s 36(4) …. 10.48 s 36(7) …. 10.51 s 36(8) …. 10.51 s 37 …. 11.110 s 33(7) …. 13.5 s 38(1) …. 14.62 s 39(1) …. 11.69, 13.5 s 40(1) …. 13.19 s 40(1)(a) …. 13.19 s 40(1)(b) …. 13.19 s 40(1)(c) …. 13.19 s 40(1)(d) …. 13.19 s 40(4) …. 13.19 s 40(3) …. 13.19 s 40(5) …. 13.19 s 40(6) …. 13.19 s 40(8) …. 13.19 s 40(9) …. 13.19 s 41(1) …. 10.78 s 41(2) …. 10.78 s 42(1) …. 10.50 s 42(4) …. 14.64 s 43(1) …. 14.28 s 43(2)(a) …. 13.11 s 43(2)(b) …. 13.26 s 43(3) …. 13.11, 13.26 s 47 …. 13.1 s 54(1) …. 14.57 s 54(2)–(8) …. 14.57 s 55 …. 14.57

s 56(3) …. 14.57 s 64 …. 13.34, 13.44 Sch II Pt I …. 14.10 Sch II Pt II …. 14.3 Sch III cl 9 …. 11.2 Administration and Probate Act 1943 …. 21.86 Adoption Act 1988 s 50 …. 9.25 s 50(1) …. 8.54 Alternative Dispute Resolution Act 2001 s 5(1) …. 20.37 Conveyancing and Law of Property Act 1884 s 34(1) …. P.4 s 34(2) …. P.4 s 36 …. 1.37, 11.91 s 89 …. 9.22 Deceased Persons’ Estates Act 1874 …. 21.78 Deceased Persons Estates Act 1885 …. 21.79 Deceased Persons’ Estates Act 1913 …. 21.85 Deceased Persons Estates Management Act 1903.… 21.81 Distribution of Intestates Property Act 1906 …. 21.82 Duties Act 2001 s 47(1) …. 10.57 s 53(j) …. 10.57 s 92(1)(b) …. 11.29 Electronic Transactions Act 2000 s 7 …. 4.6 Estates of Deceased Persons Act 1853 …. 21.74 Estates of Deceased Persons Act 1861 …. 21.77 Estates of Deceased Persons Act 1869 …. 21.77 Evidence Act 2001 s 59 …. 19.36 s 60 …. 19.36 s 63 …. 19.36 s 117(1) …. 24.2 s 121(1) …. 24.2

s 140(2) …. 4.52 Executors and Administrators Relief Act 1898 …. 21.79 Guardianship and Administration Act 1995 s 60 …. 7.41 Human Tissue Act 1985 Pt III …. 12.8 Imperial Wills Act 1837 …. 21.86 Intercolonial Probate Act 1879 …. 21.80 Intestacy Act 2010 …. P.13, 9.1, 9.16, 9.17 Pt 4 …. 9.77 s 4 …. 9.1, 9.34, 9.78, 9.84 s 5 …. 9.1 s 5(1) …. 9.13 s 6 …. 9.33, 9.82 s 7(1) …. 9.34 s 7(2) …. 9.34 s 7(3) …. 9.34 s 7(4) …. 9.34 s 7(5) …. 9.34 s 7(9) …. 9.34 s 8(1) …. 9.17 s 9(1) …. 9.16 s 10 …. 9.25 s 12 …. 9.34 s 13 …. 9.34 s 14 …. 9.34 s 15 …. 9.60 s 16(1) …. 9.60 s 16(2) …. 9.60 s 16(3) …. 9.60 s 16(4) …. 9.60 s 16(6) …. 9.61 s 16(7) …. 9.61 s 17(1) …. 9.61 s 18(1) …. 9.61 s 18(2) …. 9.61

s 18(3) …. 9.61 s 19(1) …. 9.61 s 19(2) …. 9.61 s 19(3) …. 9.61 s 19(4) …. 9.61 s 19(5) …. 9.61 s 19(6) …. 9.61 s 20(1) …. 9.61 s 20(2) …. 9.61 s 20(3) …. 9.61 s 20(4) …. 9.61 s 20(5) …. 9.61 s 21 …. 9.61 s 22(1) …. 9.62 s 22(2) …. 9.62 ss 23–25 …. 9.35 s 25 …. 9.35 s 26 …. 9.44 s 26(1) …. 9.35 s 26(2) …. 9.35 s 26(3) …. 9.35 s 27(3) …. 9.35 s 27(4) …. 9.35 s 28(1) …. 9.36 s 28(2) …. 9.36 s 28(3) …. 9.36 s 28(4) …. 9.36 s 29(1) …. 9.36 s 30(1) …. 9.36 s 30(2) …. 9.36 s 30(3) …. 9.36 s 31(1) …. 9.36 s 32(1) …. 9.36 s 32(2) …. 9.36 s 32(3) …. 9.36 s 33 …. 9.37

s 34(1) …. 9.78 s 34(2) …. 9.78 s 34(3) …. 9.78 s 34(4) …. 9.78 s 35(1) …. 9.78 s 35(2) …. 9.78 s 35(3) …. 9.78 s 35(4) …. 9.78 s 36 …. 9.78 s 37 …. 9.38 s 38(1) …. 9.38 s 38(2) …. 9.38 s 39 …. 9.27 s 40 …. 9.15 s 40(a) …. 7.46, 9.13 s 40(b) …. 7.65 s 41 …. 9.75 Justice and Related Legislation (Miscellaneous Amendments) Act 2015 …. 11.65, 16.46 Land Title Act 1980 …. 10.48 s 99 …. 11.122 s 113 …. 8.74 Limitation Act 1974 s 2(1) …. 12.59 s 4(1)(a) …. 12.59 s 24(1) …. 12.59 s 24(2) …. 12.59 Partition Act 1869 …. 13.7 Powers of Attorney Act 2000 s 32AH(2) …. 7.38 s 32AH(3) …. 7.38 s 32AH(4) …. 7.38 s 32AH(5) …. 7.38 Powers of Attorney Amendment Act 2013 …. 7.38 Presumption of Survivorship Act 1921 s 2 …. 11.85

Probate Act 1893 s 9 …. 13.56 Probate Amendment Act 1906 …. 21.81 Probate and Administration Fees Act 1858 …. 21.76 Probate Duties Act 1868 …. 21.76 Probates (Foreign) Act 1893 …. 21.35, 21.80 Probate Rules 1936 r 21 …. 10.31 r 22 …. 10.31 r 32(1) …. 11.65 r 35 …. 11.65 r 42 …. 10.12 r 43 …. 10.10, 11.45 r 44 …. 11.45 r 60 …. 11.36 r 63 …. 12.12 s 67 …. 11.2 r 67(1) …. 10.59 r 67(2) …. 10.59 r 67(3) …. 10.64 r 67(4) …. 10.64, 10.66 r 77 …. 11.24 r 78(1) …. 11.27 r 78(2) …. 11.27 r 82A(1) …. 11.105 Public Trust Office Act 1912 …. 21.84 Public Trust Office Act 1919 …. 21.84 Public Trust Office Act 1930 …. 21.84 Public Trust Office Act 1933 …. 21.84 Public Trustee Act 1930 s 11 …. 13.74 s 11(1) …. 13.75 s 12(1) …. 10.6 s 15(1) …. 10.76 s 15(4) …. 10.76 s 16(1) …. 10.6

s 16(2) …. 10.6 s 17(1) …. 10.36 s 17(2) …. 10.36 s 17(3) …. 10.36 s 20(1) …. 11.116 s 20(2) …. 11.116 s 20(4) …. 11.117 s 20(5) …. 11.117 s 20A(1) …. 11.113 s 20A(2) …. 11.113 s 20A(4) …. 11.113 s 20A(5) …. 11.113 s 21 …. 11.113 s 21(1) …. 11.77 s 21(2) …. 11.77 s 21(3)–(6) …. 11.77 s 51 …. 11.65 Public Trustee Regulations 2009 reg 6 …. 13.75 reg 8(1) …. 11.116 reg 8(2) …. 11.117 reg 8(3) …. 11.113 reg 8(4) …. 11.113 Relationships Act 2003 …. 9.33, 16.45 Pt 2 …. 5.23, 16.45 s 4(1) …. 16.45 s 4(2) …. 16.45 s 4(3) …. 16.45 Relief of Executors and Administrators Act 1857 …. 21.75 Settled Land Act 1884 s 3(c) …. 13.7 s 40A …. 13.7 Specialty and Simple Contract Debts of Deceased Persons Act 1870 …. 21.77 Status of Children Act 1974 …. 14.37 Pt III …. 8.56 s 3 …. 8.53, 9.23

s 4 …. 8.53 s 6 …. 14.53 s 10 …. 16.5 Succession Duty Act 1865 …. 21.76 Supreme Court Civil Procedure Act 1932 s 6(5) …. 11.1, 11.11, 11.94, 22.4 Supreme Court Rules 2000 r 5A(1) …. 14.40 r 63 …. 23.2 r 64 …. 23.38 r 184(2) …. 11.54 r 184(3) …. 11.54 r 367 …. 17.19 r 518(1) …. 20.37 r 604 …. 12.46, 13.34 r 605 …. 12.46 r 960 …. 14.40 Testator’s Family Maintenance Act 1912 …. P.15, 15.5, 19.35, 21.83 s 2(1) …. 16.45, 16.46, 17.2, 18.45 s 2(2) …. 16.46 s 3(1) …. 15.8, 16.4, 17.2, 17.4, 17.58, 17.59, 23.23 s 3(2) …. 17.58, 20.15 s 3(3) …. 20.15 s 3(4) …. 17.16, 17.17 s 3(5) …. 16.4 s 3A …. 16.44, 18.45 s 3A(a) …. 18.1 s 3A(b) …. 18.1, 18.36 s 3A(c) …. 18.50 s 3A(d) …. 18.13 s 3A(e) …. 18.13 s 4(4) …. 16.45 s 6(b) …. 17.45 s 7 …. 19.2 s 7(a) …. 19.2 s 8(1) …. 19.2, 19.9

s 8(2) …. 20.15 s 8A(1) …. 19.35 s 8A(1A) …. 19.35 s 8A(2) …. 19.35 s 9(1)(a) …. 20.15 s 9(1)(b) …. 20.15 s 9(1)(d) …. 20.15 s 9(2) …. 20.12 s 9(3)(a) …. 20.10 s 9(3)(b) …. 20.10 s 9(4) …. 18.13 s 9(5) …. 20.50 s 9(5A) …. 20.50 s 9(6) …. 20.50 s 9(7) …. 20.12 s 10(1) …. 20.18 s 10(2)(a) …. 20.18 s 10(2)(b) …. 20.18 s 10(4) …. 20.18 s 10A(1) …. 20.13 s 10A(2) …. 20.19 s 10A(3) …. 20.19 s 10B …. 20.14 s 11 …. 17.17 s 11(1) …. 17.22 s 11(2) …. 17.17, 17.23 s 11(3) …. 17.23 s 11(4) …. 17.43 Testator’s Family Maintenance Act 1915 …. 21.83 Testator’s Family Maintenance Act 1933 …. 21.83 Trustee Act 1898 s 3(1) …. 10.78 s 4 …. P.16, 12.59, 13.56 s 6 …. 12.24 s 7(1)(a) …. 12.3 s 13 …. 10.31, 10.45

s 13(6) …. 10.42, 10.77 s 13A …. 10.22 s 14 …. 10.77 s 14(1) …. 10.14, 10.40 s 16 …. 10.79 s 17 …. 10.12 s 23(1) …. 10.10 s 23(2) …. 10.10 s 24 …. 12.1 s 24(1) …. 13.29 s 24(2) …. 13.29 s 24(2)(a)–(c) …. 13.29 s 25 …. 12.60 s 25A(1) …. 14.57 s 25A(2)–(4) …. 14.57 s 25A(5) …. 14.60 s 25A(6) …. 14.60 s 25AA …. 12.27 s 26 …. 12.12 s 27(1) …. 12.20, 12.54 s 27(3)(a) …. 12.20 s 27(3)(c) …. 12.20 s 27(3A)–(3C) …. 12.20 s 27(4) …. 12.20 s 27(5) …. 12.20 s 27(6) …. 12.20 s 29 …. 10.20 s 30 …. 12.52 s 32(3) …. 10.42, 10.77 s 33(3) …. 12.24 s 47 …. 20.18 s 48 …. 10.80 s 50 …. 12.58 s 53 …. 13.41 s 54 …. 12.39 s 56(1) …. 12.39

s 56(2) …. 12.39 s 58 …. 13.56 s 64 …. 12.39 Trustee Companies Act 1953 s 5 …. 10.6 s 6 …. 10.61 s 8 …. 10.61 s 9 …. 10.61 s 10(1) …. 10.61 s 10(2) …. 10.61 s 10A(1) …. 11.116 s 10A(2) …. 11.116 s 10A(3) …. 11.116 s 10A(6) …. 11.117 s 10A(7) …. 11.117 s 14 …. 10.74 s 15(1) …. 10.74 s 16 …. 10.6 s 18 …. 13.76 s 18(1) …. 10.36 s 18(5) …. 13.77 s 19(1) …. 10.36 Trustee Companies Regulations 2016 reg 4(1) …. 11.116 reg 4(2) …. 11.117 Wills Act 1840 …. 21.73, 21.86 Wills Act 1852 …. 21.73 Wills Act 1934 …. 21.86 Wills Act 1942 …. 21.85 Wills Act 1992 s 26 …. 4.31 Wills (Soldiers and Sailors) Act 1918 …. 21.85, 21.86 Wills Act 2008 …. P.12, 4.21 Pt 3 …. 19.35 Pt 5 …. 22.15 Pt 5A …. 22.20

Pt 6 …. 22.8 s 3(1) …. 7.9 s 4 …. 22.16 s 8 …. 4.1 s 8(1)(b) …. 4.13 s 8(1)(c) …. 4.15 s 8(2) …. 4.8, 4.9 s 8(3) …. 4.19 s 8(5) …. 22.30 s 9 …. 4.16 s 10 …. 4.31 s 10(1) …. 4.36, 4.52 s 10(2) …. 4.51 s 10(4) …. 4.36 s 11 …. 4.13 s 12(1) …. 4.58 s 12(2)(a) …. 4.58 s 12(2)(b) …. 4.59 s 13 …. 4.59 s 14 …. 4.59 s 15(1) …. 5.1, 5.2 s 15(1)(c) …. 5.8 s 15(1)(d) …. 5.9 s 15(1)(e) …. 5.15 s 15(2) …. 5.2 s 16 …. 5.23 s 16(2)(a) …. 5.31 s 16(2)(b) …. 5.34 s 16(3) …. 5.31 s 16(4) …. 5.31 s 17 …. 5.35 s 17(1) …. 5.36 s 17(2) …. 5.37 s 17(3) …. 5.38 s 17(4) s 17(4)

s 18 …. 5.42 s 18(1) …. 5.46 s 18(2) …. 5.46, 5.48 s 19(1) …. 6.13 s 19(2) …. 6.13, 6.19 s 19(3) …. 6.13, 6.19 s 19(4) …. 6.13 s 20 …. 3.22 s 20(1) …. 3.23, 5.33 s 20(2) …. 3.23 s 20(3) …. 3.23 ss 21–28 …. 3.1 s 22(1) …. 3.3 s 22(3) …. 3.21 s 22(4) …. 3.5 s 23 …. 3.3 s 23(2) …. 3.4 s 24 …. 3.4 s 24(a) …. 3.3 s 24(e) …. 3.16 s 26(a) …. 3.4 s 27 …. 3.21 ss 29–41 …. 3.1 s 30 …. 3.3 s 30(2) …. 3.5 s 30(6) …. 3.21 s 31 …. 3.1 s 32 …. 3.4 ss 32–34 …. 3.3 s 33 …. 3.4 s 33(a) …. 3.3 s 33(f) …. 3.16 ss 39–41 …. 3.1 s 44 …. 4.5, 6.6, 7.29, 8.67 s 45 …. 7.10 s 45(1) …. 7.10

s 46 …. 8.44 s 46(1) …. 8.44 s 46(2) …. 8.44 s 46(3) …. 8.44 s 47 …. 22.22 s 49 …. 7.13, 11.87 s 50 …. 8.76 s 51 …. 8.72 s 52(1) …. 8.73 s 53 …. 22.8 s 55(1) …. 7.19 s 55(2) …. 7.19 s 55(3)(b) …. 7.19 s 55(3) …. 7.19 s 55(4) …. 7.19 s 55(5) …. 7.19 s 56(1) …. 7.11, 8.75 s 56(2) …. 7.11, 8.75 s 56(3) …. 7.11 s 58B(12) …. 7.38 s 60(1) …. 22.15 s 60(2)(a) …. 22.15 s 60(2)(b) …. 22.16 s 60(2)(c) …. 22.23 s 60(2)(d) …. 22.30 s 60(3) …. 22.30 s 61 …. 22.17 s 62(1) …. 22.18 s 62(2) …. 22.19 ss 62A–62E …. 22.20 Wills Amendment (International Wills) Act 2012 …. 22.20

VICTORIA Administration and Probate Act 1890 s 26 …. 13.56

Administration and Probate Act 1892 …. 21.33 Administration and Probate Act 1903 …. 21.33 Administration and Probate Act 1907 s 5(1) …. 11.104 Administration and Probate Act 1911 …. 14.54, 21.35 Administration and Probate Act 1916 …. 21.33 Administration and Probate Act 1921 …. 21.33 Administration and Probate Act 1926 …. 21.33 Administration and Probate Act 1928 …. 21.40 Administration and Probate Act 1933 …. 21.39 Administration and Probate Act 1942 …. 21.33 Administration and Probate Act 1958 …. P.14, 24.17 Pt I Div 6 …. P.13, 9.1 Pt IV …. P.15, 15.5, 16.47 s 3(1) …. 16.52, 20.47 s 5 …. 12.24 s 5(1) …. P.8, 13.5, 14.6 s 6 …. 11.1 s 6(1)(a) …. 12.3 s 7 …. 23.36 s 7(1) …. 11.10 s 7(2) …. 11.10 s 8(a)–(c) …. 11.10 s 8(b) …. 11.10 s 8(d) …. 11.10 s 9(1) …. 11.103 s 9(2) …. 11.103 s 10(a) …. 11.108 s 10(b) …. 11.108 s 10(d) …. 11.108 s 11 …. 11.36 s 12 …. 11.30 s 12(1) …. 11.2 s 12(1A) …. 11.2 s 12(2) …. 11.2 s 13(1) …. 11.71, 11.81, 11.89, 13.6

s 14 …. 11.69 s 15 …. 11.39, 13.6 s 16(1) …. 10.58 s 16(2) …. 10.64 s 17 …. 13.6 s 17(1) …. 10.84 s 17(2) …. 10.84 s 17(3) …. 10.84 s 17(4) …. 10.85 s 18 …. 11.36 s 19 …. 11.71, 11.80 s 20 …. 11.70 s 21 …. 11.41 s 22 …. 11.66, 12.60 s 22(1) …. 11.49, 11.50 s 22(2) …. 11.49 s 23 …. 11.112 s 24 …. 11.66 s 24(1) …. 11.48 s 24(3) …. 11.48 s 25 …. 11.38 s 26(1) …. 10.10 s 26(2) …. 10.10 s 27 …. 12.1 s 28 …. 12.28 s 28(1) …. 12.12 s 29(1) …. 12.20 s 29(2)(a) …. 12.20 s 29(2)(c) …. 12.20 s 29(2A) …. 12.20 s 29(3) …. 12.20 s 29(3A) …. 12.20 s 29(4) …. 12.20 s 30 …. 12.27, 14.54 s 30(1) …. 14.61 s 30(2) …. 14.61

s 30(3) …. 14.61 s 30A(1) …. 14.61 s 30A(2) …. 14.61 s 30A(3) …. 14.61 s 31(1) …. 11.108 s 31(2) …. 11.109 s 31(4) …. 14.64 s 31A(1) …. 11.119 s 31A(2) …. 11.119 s 31A(3) …. 11.119 s 31A(4) …. 11.119 s 31A(5) …. 11.119 s 31B …. 11.119 s 31B(1) …. 11.119 s 31C …. 10.20 s 31D …. 12.52 s 32 …. 11.119 s 33 …. 10.20 s 33(2) …. 12.52 s 33(3) …. 14.62 s 34(1) …. 10.73, 11.104 s 34(1)(c) …. 11.104 s 34(3) …. 11.105 s 34(4) …. 11.105 s 36(1) …. 12.54, 14.16 s 36(2) …. 13.40, 14.16 s 36(3) …. 14.14 s 37 …. 11.69, 14.1, 14.3 s 37A(1) …. 9.70 s 37A(2) …. 9.70 s 37A(3) …. 9.70 s 37A(4) …. 9.70 s 37A(5) …. 9.70 s 37A(6) …. 9.70 s 37A(7) …. 9.70 s 37A(9) …. 9.70

s 37A(10) …. 9.71 s 37A(11) …. 9.71 s 38(1) …. 9.11 s 38 …. 14.50 s 38(1) …. 13.5, 13.11 s 38(2) …. 11.29 s 38(3) …. 12.24 s 38(7) …. 13.5 s 39 …. 14.10 s 39(1) …. 14.10 s 39(2) …. 14.3 s 39A(2) …. 14.6 s 39A(3)(a) …. 14.6 s 39A(3)(b) …. 14.6 s 39B(1) …. 14.6 s 39B(2) …. 14.6 s 40 …. 11.48 s 40(1) …. 14.8 s 40(2) …. 14.9 s 40(3) …. 14.8 s 41 …. 10.45 s 41(1) …. 10.48 s 41(2) …. 10.48 s 41(4) …. 10.48 s 41(6) …. 10.51 s 41(7) …. 10.51 s 41(10) …. 10.48 s 42 …. 11.110 s 43(1) …. 14.62 s 44 …. 10.77 s 44(1) …. 11.69, 13.5 s 44(1)(b) …. 13.11 s 45 …. 11.71 s 46(1) …. 10.59, 13.19 s 46(1)(a) …. 13.19 s 46(1)(b) …. 13.19

s 46(1)(c) …. 13.19 s 46(3) …. 13.19 s 46(4) …. 13.19 s 46(5) …. 13.19 s 46(6) …. 13.19 s 46(8) …. 13.19 s 46(9) …. 13.19 s 47(1) …. 10.78 s 48(1) …. 10.50 s 48(2) …. 10.42, 10.77 s 49 …. 14.28 s 49A …. 13.46 ss 50–55 …. 9.48 s 51(1) …. 9.50 s 51(2) …. 9.50 s 51(3) …. 9.50 s 51A(1) …. 9.50 s 52(1)(a)–(ea) …. 9.51 s 52(1)(f) …. 9.51 s 52(1)(f)(i) …. 9.73 s 52(1)(f)(ii) …. 9.51 s 52(1)(f)(vii) …. 9.28 s 52(1)(f)(v) …. 9.51 s 53(a) …. 9.51 s 53(b) …. 9.11 s 55 …. 9.51 s 57(1) …. 11.60, 11.66 s 57(3)…. 11.66 s 57(4) …. 11.66 s 58 …. 11.24 s 63 …. 13.1 s 65 …. 13.44, 13.56 s 65(1) …. 13.44 s 65A …. 13.61 s 67 …. 12.58 s 69 …. 10.80

s 71 …. 11.116 s 71(1A) …. 11.116 s 71(1B) …. 11.116 s 79 …. 11.116 s 79(2) …. 11.116 s 79(3) …. 11.116 s 79(3A) …. 11.116 s 88 …. 22.8 s 90 …. 16.52, 17.2, 17.54, 18.13, 18.36, 18.50 s 90(a) …. 18.1 s 90(b) …. 18.1 s 90(c) …. 18.45 s 90(d) …. 18.50 s 90(e) …. 18.13 s 90(g) …. 18.50 s 90(h) …. 18.50 s 90(j) …. 18.50 s 90(k) …. 18.50 s 90(f) …. 18.45 s 90A(1) …. 16.4, 17.4 s 91 …. 16.47 s 91(1) …. 15.7, 15.8, 17.58, 17.59, 17.64, 18.36, 18.45, 18.50 s 91(2) …. 15.8, 16.4, 17.4, 17.59 s 91(2)(b) …. 16.52, 18.36, 18.51 s 91(2)(c) …. 17.64 s 91(3) …. 15.8, 17.59, 18.51 s 91(4) …. 16.51, 17.58, 17.82, 20.47 s 91(4)(a)–(c) …. 19.1 s 91(4)(c) …. 16.52, 18.23, 18.45 s 91(4)(e) …. 16.48, 16.49 s 91(4)(e)–(p) …. 17.64, 19.5 s 91(4)(g) …. 19.6 s 91(4)(h) …. 17.4, 17.82 s 91(4)(j) …. 18.28 s 91(4)(k) …. 15.19, 18.28 s 91(4)(o) …. 19.2, 19.9

s 91(4)(p) …. 17.58, 17.64, 19.1, 19.31 s 91(5) …. 20.47 s 91(5)(b) …. 18.51 s 91A(1) …. 19.5, 19.35 s 91A(2) …. 17.58, 17.82, 19.1 s 91A(2)(a)–(m) …. 17.64, 19.5 s 91A(2)(c) …. 19.6 s 91A(2)(d) …. 17.4, 17.82 s 91A(2)(f) …. 18.28 s 91A(2)(g) …. 15.19 s 91A(2)(g) …. 18.28 s 91A(2)(k) …. 19.2, 19.9 s 91A(2)(m) …. 17.58, 17.64, 19.1, 19.31 s 93 …. 17.10 s 94(b) …. 17.45 s 94(c) …. 19.35 s 96(2) …. 17.58 s 96(3) …. 20.15 s 97(1)(a) …. 20.15 s 97(1)(b) …. 20.15 s 97(1)(c) …. 20.15 s 97(2) …. 20.13 s 97(3) …. 20.12 s 97(4)(a) …. 20.10 s 97(4)(b) …. 20.10 s 97(5) …. 20.50 s 97(5A) …. 20.50 s 97(7) …. 16.47, 23.24 s 98 …. 20.14 s 99 …. 17.22, 17.43 s 99(1) …. 17.22 s 99(2) …. 17.23 s 99(3) …. 17.43 s 99(4) …. 17.43 s 99A(1) …. 17.54 s 99A(2) …. 17.56

s 99A(3) …. 17.54 s 99A(4) …. 17.55 Sch II Pt I …. 14.10 Sch II Pt II …. 14.3 Administration and Probate Act Amendment Act 1898 …. 21.37 Administration and Probate (Caveats) Act 1937 …. 21.40 Administration and Probate (Charities) Act 1934 …. 21.33 Administration and Probate Duties Act 1929 …. 21.33 Administration and Probate (Testator’s Family Maintenance) Act 1937 …. 21.40 Administration of the Estates of Deceased Persons Act Amendment Act 1858 …. 21.32 Adoption Act 1984 s 53 …. 9.25 s 53(1) …. 8.54 Cemeteries Act 1958 s 77(2) …. 12.8 Civil Procedure Act 2010 s 7 …. 23.22 s 62 …. 17.19 s 66 …. 20.37 Dower Abolition Act 1880 …. 9.22 Deceased Persons Estates Administration Act 1872 …. 21.33 Duties Act 2000 s 42 …. 10.57 Duties on Estates Acts 1876 …. 21.33 Duties on Estates Acts 1889 …. 21.33 Duties on the Estates of Deceased Persons Act 1870.… 21.33 Electronic Transactions (Victoria) Act 2000 s 9 …. 4.6 Evidence Act 1906 s 79C …. 19.35 Evidence Act 2008 s 59 …. 19.36 s 60 …. 19.36 s 63 …. 19.36

s 92(1)(b) …. 11.29 s 117(1) …. 24.2 s 121(1) …. 24.2 s 140(2) …. 4.52 Financial Management Act 1994 s 58(3)(a) …. 9.51 Guardianship and Administration Act 1986 s 53 …. 7.41 Human Tissue Act 1982 Pt IV …. 12.8 Pt VI …. 12.8 Instruments Act 1958 s 126 …. 1.37, 11.91 Interpretation of Legislation Act 1984 s 38 …. 4.5, 4.36 Intestate Estates Act Amendment Act 1886 …. 21.34 Intestate Estates Distribution Act 1916 …. 21.39, 21.71 Intestate Estates Relief Act 1889 …. 21.33 Justice Legislation Amendment (Succession and Surrogacy) Act 2014 …. 3.3, 11.116, 11.119, 14.6, 15.7, 16.2, 16.52, 17.64, 18.45, 18.51, 19.1, 19.35, 20.47, 23.24 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 …. 24.23 r 12.2 …. 24.21 r 12.4.1 …. 24.17 r 12.4.2 …. 24.23 Limitation of Actions Act 1958 s 3(1) …. 12.59 s 5(1)(a) …. 12.59 s 21(1) …. 12.59 s 21(2) …. 12.59 Married Women’s Property Act 1884 s 25 …. 9.22 Miscellaneous Acts (Omnibus No 1) Act 1998 …. 16.47 Penalty Interest Rates Act 1983 s 2 …. 9.50 Probate Act 1886 …. 21.35

Probate Act 1887 …. 21.35 Probate Act 1892 …. 21.35 Probate Charges Act 1903 …. 21.33 Property Law Act 1958 s 35(3) …. 13.7 s 184 …. 11.85 s 249 …. 8.74 Public Trustee Act 1939 …. 21.41 Public Trustee Act 1942 …. 21.41 Real Property in Intestate Estates Act 1864 …. 21.32, 21.33 Relationships Act 2008 …. 16.52, 18.51, 20.47 s 3(1) …. 9.50, 16.52, 18.51 State Trustees (State Owned Company) Act 1994 …. 10.63 s 4(1) …. 10.63 s 4(2) …. 10.63 s 5 …. 10.38 s 13 …. 13.74 s 13(1) …. 13.75 Status of Children Act 1974 …. 14.37 Pt II …. 8.56 Pt III …. 8.56 s 3 …. 8.53, 9.23 s 4 …. 8.53 s 6 …. 14.53 s 10 …. 16.5 Supreme Court (Administration and Probate) Rules 2004 r 2.04 …. 12.12 r 3.02 …. 12.12 r 4.04 …. 12.12 r 5.01 …. 10.10 r 5.01(1) …. 11.45 r 5.01(2) …. 11.45 r 5.01(3) …. 11.45 r 6.01 …. 11.36 r 6.03(1) …. 12.40 r 6.03(2) …. 12.40

r 6.03(3) …. 12.40 r 7.01 …. 11.66 r 8.01 …. 11.27 r 8.03 …. 11.27 r 8.04 …. 11.27 O 10 …. 13.44 Supreme Court (General Civil Procedure) Rules 2015 r 16.03(1) …. 11.54 r 23.01(1) …. 17.19 r 23.03 …. 17.19 r 50.07 …. 20.37 r 54.02 …. 12.46, 13.34 r 63.21 …. 23.38 r 78.05 …. 14.40 Transfer of Land Act 1958 …. 10.48 s 49 …. 11.122 Trustee Act 1958 s 2(3) …. P.4 s 3(1) …. P.16, 12.59 s 13(5) …. 13.11 s 19(1) …. 13.29 s 19(1)(a)–(c) …. 13.29 s 19(1)(d)–(f) …. 13.29 s 19(1)(g) …. 13.29 s 20 …. 13.9 s 22(2) …. P.4 s 32(1) …. 14.46 s 32(2) …. 14.46 s 33 …. 14.61 s 33(1) …. 14.57 s 33(3) …. 14.57 s 68(1) …. 13.41 s 74 …. 14.42 Trustee Companies Act 1984 s 9 …. 10.6 s 10 …. 10.61

s 11(1) …. 10.61 s 11A(1)–(4) …. 11.116 s 16 …. 10.74 s 17(1) …. 10.74 ss 21–24 …. 13.76 s 21(3) …. 13.77 Widows and Young Children Maintenance Act 1906.… 15.5 Wills Act 1997 …. P.12, 4.21, 16.47, 16.50 Pt 1A …. 9.49 Pt 2 Div 6 …. 22.15 Pt 2 Div 7 …. 22.20 Pt 3 …. 22.8 s 3(1) …. 9.50, 9.70 s 5(1) …. 7.9 s 6 …. 22.4 s 7 …. 4.1 s 7(1)(b) …. 4.8, 4.9 s 7(1)(c) …. 4.13 s 7(1)(d) …. 4.15 s 7(2) …. 4.19 s 7(4) …. 22.30 s 8 …. 4.16 s 9 …. 4.31 s 9(2) …. 4.52 s 9(3) …. 4.51 s 9(6) …. 4.36 s 10 …. 4.13 s 11 …. 4.57 s 12(2) …. 5.1, 5.2 s 12(2)(e) …. 5.8 s 12(2)(f) …. 5.9 s 12(2)(g) …. 5.15 s 13 …. 5.23 s 13(2)(a) …. 5.31 s 13(2)(b) …. 5.34 s 13(2)(c) …. 5.33

s 13(3)(a) …. 5.31 s 13(3)(b) …. 5.31 s 14 …. 5.35, 9.13 s 14(1) …. 5.36 s 14(1)(b) …. 5.37 s 14(1)(c) …. 5.37 s 14(2) …. 5.36 s 14(3) …. 5.38 s 15 …. 5.42 s 15(1) …. 5.46 s 15(2) …. 5.48 s 15(3) …. 5.46 s 16(1) …. 6.13 s 16(2) …. 6.13, 6.19 s 16(3) …. 6.13, 6.19 s 16(4) …. 6.13 s 17(1) …. 22.15 s 17(2)(a) …. 22.15 s 17(2)(b) …. 22.16 s 17(2)(c) …. 22.23 s 17(2)(d) …. 22.30 s 17(3) …. 22.30 s 18 …. 22.17 s 19 …. 9.10, 9.11 s 19(1) …. 22.18 s 19(2) …. 22.19 ss 19A–19E …. 22.20 s 20 …. 3.22 s 20(1)–(4) …. 3.23 s 20(5) …. 3.23 s 20(6) …. 3.23 ss 21–30 …. 3.1 s 21(2) …. 3.3 s 21(3) …. 3.5, 3.21 s 21A …. 3.4 s 21B …. 3.4

s 21B(b) …. 3.14 s 21C …. 3.3 s 21D(1)(a) …. 3.3 s 25(1) …. 3.21 s 26 …. 3.4 s 26(b) …. 3.8, 3.14 s 28 …. 3.4 s 34 …. 4.5, 6.6, 7.29, 8.67 s 35 …. 7.10 s 35(3) …. 7.10 s 36 …. 8.44 s 36(1) …. 8.44 s 36(1)(c) …. 8.45 s 36(2) …. 8.44 s 36(3) …. 8.44 s 37 …. 22.22 s 39 …. 11.87 s 39(1) …. 7.13 s 39(2) …. 7.13 s 40 …. 8.72 s 41 …. 8.76 s 42 …. 8.73 s 45(1) …. 7.19 s 45(2) …. 7.19 s 45(3) …. 7.19 s 45(4) …. 7.19 s 46(1) …. 7.11 s 46(2) …. 7.11 s 46(3) …. 7.11, 8.75 s 46(4) …. 7.11 Wills Act Amendment Act 1852 …. 21.32 Wills Amendment Act 2007 …. 3.8 Wills Amendment (International Wills) Act 2012 …. 22.20 Wills (War Service) Act 1918 …. 21.39 Wills (War Service) Act 1939 …. 21.39

WESTERN AUSTRALIA Administration Act 1903 …. P.14 s 4 …. 11.1 s 5 …. 11.2, 11.30 s 6 …. 11.1 s 7 …. 11.36 s 8 …. 11.69, 11.80, 11.81 s 9 …. 11.81 s 10(1) …. 11.69, 14.1 s 10(2) …. 14.14 s 10(3) …. 13.5, 14.14 s 10(5) …. 14.14 s 10A(1) …. 14.10 s 11 …. 9.13, 11.69 s 12 …. 11.69 ss 12A–16 …. P.13, 9.1 s 12A(1) …. 9.23 s 14(1) …. 9.52 s 14(2)(a) …. 9.52 s 14(2)(b) …. 9.52 s 14(2b) …. 9.52 s 14(3) …. 9.52 s 14(3a) …. 9.53 s 14(4) …. 9.52, 9.53 s 15 …. 9.57 s 15(1) …. 9.55 s 15(2) …. 9.55 s 15(3) …. 9.55 s 15(4) …. 9.55 s 15(5) …. 9.57 s 16 …. 9.22 s 17(1) …. 14.50 s 17(3) …. 14.50 s 17A(1) …. 10.78 s 17A(2) …. 10.78

s 17A(3) …. 10.78 s 19 …. 13.7 s 20(1) …. 10.73 s 23(1) …. 14.15 s 23(2) …. 14.15 s 24 …. 11.70 s 25(1) …. 10.22, 10.32, 11.44 s 26(1) …. 11.60 s 26(1) …. 11.67 s 26(2) …. 11.67 s 26(5) …. 11.67 s 26(6) …. 11.62 s 26(8) …. 11.67 s 29(1) …. 11.94, 11.102 s 31 …. 13.6 s 32 …. 10.58, 13.6 s 33(1) …. 10.10 s 33(2) …. 11.44 s 34 …. 10.12, 13.6 s 35 …. 11.49 s 36 …. 11.39 s 37 …. 11.39 s 38(1) …. 11.48 s 38(2) …. 11.48 s 39(1) …. 11.48 s 39(2) …. 11.48 s 41 …. 11.112 s 42 …. 12.50 s 43 …. 12.42 s 43(1)(a) …. 12.1 s 43(1)(b) …. 12.12, 12.41 s 43(2) …. 12.41 s 44(1) …. 12.41 s 44(2) …. 12.41 s 44(3) …. 12.41 s 45 …. 13.34

s 45(1) …. 11.105, 13.34 s 46(1) …. 11.109 s 46(2) …. 11.109 s 47 …. 11.109 s 47A …. 14.53 s 54(1) …. 11.3 s 57 …. 11.3 s 57(1) …. 11.3 s 57(2) …. 11.3 s 59 …. 14.50 s 60 …. 11.3 s 63(1) …. 11.24 s 63(2) …. 14.62 s 64 …. 11.27, 14.58 s 65 …. 14.63 s 65(7) …. 14.63 s 65(8) …. 14.63 s 139(1) …. 11.121 s 143A …. 14.40 Sch 4 cl 1(1) …. 9.57 Sch 4 cl 1(2) …. 9.59 Sch 4 cl 1(3) …. 9.57 Sch 4 cl 1(4) …. 9.57 Sch 4 cl 2 …. 9.59 Sch 4 cl 3 …. 9.57 Sch 4 cl 3(1) …. 9.57 Sch 4 cl 4(1) …. 9.57 Sch 4 cl 4(2) …. 9.57 Sch 4 cl 4(3) …. 9.57 Sch 4 cl 5 …. 9.57 Sch 4 cl 6(2) …. 9.58 Sch 4 cl 6(4) …. 9.58 Sch 4 cl 6(5) …. 9.58 Sch 4 cl 7(1) …. 9.58 Sch 4 cl 8(1) …. 9.57 Sch 4 cl 8(2) …. 9.57

Sch 5 …. 14.10 Administration Act Amendment Act 1921 …. 21.71 Administration Act Amendment Act 1922 …. 21.71 Administration Act Amendment Act 1942 …. 21.72 Administration Act Amendment Act 1976 s 3 …. 9.75 Administration Act Amendment Act No 1 1945.… 21.72 Administration (Estates and Succession Duties) Act Amendment Act 1934 …. 21.69 Administration of Estates of Deceased Persons Act 1870 …. 21.66 Administration of Estates of Deceased Persons Act 1879 …. 21.66 Administration (Probate) Act 1903 …. 21.69 Adoption Act 1994 s 75 …. 9.25 s 75(1) …. 8.54 s 75(1)(a) …. 16.55 Artificial Conception Act 1985 …. 16.5 ss 5–6A …. 8.56 Civil Procedure Act 1833 …. 21.65 Cremation Act 1929 s 8A(b) …. 12.8 s 13. 12.8 Curator of Intestate Estates Act 1918 …. 21.70 Duties Act 2008 s 139 …. 10.57 Death Duties (Taxing) Act Amendment Act 1939 …. 21.69 Debts Recovery Act 1830.… 21.65 Dower Act 1833.… 21.15, 21.65 Duties on Deceased Persons Estates Act 1895.… 21.68 Electronic Transactions Act 2011 s 10 …. 4.6 Escheat (Procedure) Act 1940 s 8 …. 9.54 s 9 …. 9.54 Executors Act 1830 …. 21.65 Family Provision Act 1972 …. P.15, 15.5, 19.35, 20.42

s 4(1) …. 16.53, 16.55, 17.2, 17.22, 20.43, 20.50 s 4(2) …. 17.9 s 4(3) …. 17.9 s 4(4) …. 16.5 s 4(5) …. 16.5 s 6(1) …. 15.8, 16.4, 17.2, 17.4, 17.58, 17.59 s 6(2) …. 15.10 s 6(3) …. 17.62, 19.2, 19.9, 20.15 s 6(4) …. 20.15 s 6(5) …. 20.51 s 6(7) …. 20.51 s 7(1) …. 16.53, 18.1 s 7(1)(b) …. 18.13 s 7(1)(c) …. 18.1 s 7(1)(d) …. 18.36 s 7(1)(e) …. 18.50 s 7(1)(ea) …. 16.55, 18.45 s 7(1)(eb) …. 16.55, 18.45 s 7(2) …. 17.23 s 7(2)(a) …. 17.22 s 7(2)(b) …. 17.24 s 7A(1) …. 20.17 s 7A(2) …. 20.17 s 8(1) …. 20.41 s 8(2) …. 20.41 s 9 …. 20.42 s 10 …. 20.10 s 11 …. 17.54, 20.43 s 12 …. 9.13 s 12(1) …. 17.10 s 12(2) …. 17.16, 17.17 s 12B …. 9.28 s 13(1) …. 9.11, 20.18 s 13(2) …. 20.18 s 13(4) …. 20.18 s 14(1) …. 20.15

s 14(2) …. 20.13 s 14(3) …. 20.13 s 14(4) …. 20.12 s 14(5) …. 20.12 s 14(6) …. 23.23 s 15(1) …. 20.50, 20.51 s 15(2) …. 20.50 s 16(1) …. 20.51 s 17 …. 20.19 s 17(b) …. 20.19 s 17(c) …. 20.19 s 19 …. 20.31 s 20(1) …. 17.54 s 20(2) …. 17.54 s 20(3) …. 17.54 s 20(4) …. 17.56 s 20(5) …. 17.55 s 21A(1) …. 19.35 s 21A(2) …. 19.35 s 21A(3) …. 19.35, 19.36 s 21A(4) …. 19.35 s 21A(5) …. 19.35 s 21A(6) …. 19.35 s 21A(7) …. 19.35 s 21A(12) …. 19.35 Family Provision Regulations 2013 reg 3 …. 16.53, 18.45 Guardianship of Infants Act 1920 …. 21.71 s 11 …. 15.5 Human Tissue and Transplant Act 1982 Pt III …. 12.8 Inheritance (Family and Dependants Provision) Act 2011 …. 16.53, 16.55, 19.35, 20.51 Interpretation Act 1984 s 5 …. 4.5 s 13A …. 9.54

s 13A(1) …. 16.54 s 13A(2) …. 16.54 s 13A(3)(a) …. 16.54 s 13A(3)(b) …. 16.54 s 13A(4) …. 16.54 Intestate Estates Act 1883 …. 21.67 Law Reform (Miscellaneous Provisions) Act 1941 s 4(1) …. 12.20 s 4(2) …. 12.20 s 4(2)(a) …. 12.20 s 4(2a) …. 12.20 s 4(4) …. 12.20 Law Reform (Statute of Frauds) Act 1962 s 2 …. 1.37, 11.91 Limitation Act 2005 s 13(1) …. 12.59 s 27(1) …. 12.59 s 27(2) …. 12.59 Legal Profession Conduct Rules 2010 r 15(1) …. 24.23 r 15(5) …. 24.17, 24.23 Non-contentious Probate Rules 1967 r 4 …. 11.30 r 4(1) …. 11.2 r 4(4) …. 11.2 r 9B …. 12.12 r 9B(3) …. 12.12 r 26(1) …. 10.10, 11.45 r 26(2) …. 11.45 r 27(1) …. 11.67 r 27(1)(a)–(d) …. 11.67 r 27(2) …. 11.67 r 27(4) …. 11.67 r 27(6) …. 11.67 r 28 …. 10.59 r 33(1) …. 11.25

r 33(2) …. 11.27 r 33(3) …. 11.27 r 34 …. 11.11 r 37 …. 12.42 r 37(1) …. 12.41 r 37(2) …. 12.41 r 37(3) …. 12.41 r 37(4) …. 12.41 r 37(6) …. 12.41 Property Law Act 1969 s 23 …. 8.74 s 120(a) …. 11.88 s 120(d) …. 11.88 ss 126–129 …. 13.7 Public Trustee Act 1941 …. 10.63, 11.118, 21.72 s 6B …. 13.75 s 7(1) …. 10.6 s 8 …. 10.6 s 9 …. 9.10, 9.11, 11.71, 11.80 s 10(1) …. 10.39 s 10(4) …. 11.118 s 10(5) …. 11.118 s 12(1)–(3) …. 10.63 s 12(6) …. 10.63 s 14(1) …. 11.116 s 14(2) …. 11.116 s 14(3) …. 11.116 s 14(4) …. 11.117 s 14(5) …. 11.117 s 14(6) …. 11.116, 11.117 s 38A …. 13.74 s 38A(1) …. 13.75 s 38A(2) …. 13.75 s 38B …. 13.74 s 38B(1) …. 13.75 s 51 …. 11.67

Real Estates Administration Act 1893 …. 21.68 Supreme Court Act 1861 …. 21.66, 21.67 Supreme Court Act 1935 s 18 …. 11.1, 11.94 Supreme Court Rules 1971 O 1 r 4B …. 23.22, 23.36 O 4A Div 2 …. 20.37 O 16 r 1 …. 17.19 O 66 r 4(1) …. 23.2 O 66 r 4(3) …. 23.38 O 66 r 9(1) …. 23.11 O 66 r 9(2) …. 23.2 O 18 r 15 …. 11.54 O 58 r 2 …. 12.46, 13.34 O 73 r 15 …. 23.11 Testator’s Family Maintenance Act 1939 …. 15.5 Transfer of Land Act 1893 s 187 …. 11.122 Trustee Companies Act 1987 s 6(1) …. 10.61 s 6(2) …. 10.61 s 7(1) …. 10.61 s 7(2) …. 10.61 s 8(1) …. 10.61 s 8(2) …. 10.61 s 9 …. 10.6 s 10(1) …. 11.116 s 10(2) …. 11.116 s 10(3) …. 11.117 s 10(4) …. 11.117 s 14 …. 10.74 s 18 …. 13.76 Trustee Companies Regulations 1988 reg 4 …. 11.116, 11.117 Trustees Act 1962 s 5(2) …. P.4, 13.6, 13.9, 13.20

s 5(3) …. P.4, 13.9, 13.20 s 6(1) …. P.16, 13.44, 13.73 s 7 …. 10.45 s 7(9) …. 10.42, 10.77 s 9 …. 10.77 s 12(1) …. 10.59 s 17 …. 12.24 s 18(1)(a) …. 12.3 s 27(1)(a) …. 13.6, 13.9 s 27(1)(b) …. 13.9 s 27(1)(c) …. 13.11 s 30(1)(k) …. 9.57, 13.20 s 30(1)(k)(ii) …. 13.20 s 30(1)(m) …. 13.20 s 42 …. 13.29 s 42(a)–(c) …. 13.29 s 42(d)–(f) …. 13.29 s 43 …. 13.9 s 45(2) …. P.4 s 53 …. 12.28 s 54 …. 12.27 s 55(1) …. 13.27 s 55(2) …. 13.27 s 62(1) …. 14.46 s 62(3) …. 14.46 s 63 …. 14.56 s 63(1) …. 14.57 s 63(3) …. 14.57 s 63(4)–(6) …. 14.57 s 63(10)(b) …. 14.56 s 65 …. 20.41, 20.42, 20.43 s 65(1) …. 20.41 s 65(5) …. 20.42 s 65(5)(a) …. 20.42 s 65(5)(b) …. 20.42 s 65(8) …. 20.42

s 66(1) …. 14.59 s 66(3) …. 14.59 s 66(5)(a) …. 14.59 s 70 …. 12.54 s 71 …. 13.40 s 75 …. 12.58 s 76 …. 13.41 s 77(4) …. 10.42, 10.77 s 89 …. 13.1, 20.18 s 92 …. 13.34 s 95 …. 13.34 s 98(1) …. 13.44, 13.70 s 98(2) …. 13.44 s 98(4) …. 13.70 s 98(5) …. 13.73 s 99 …. 10.80 s 104 …. 14.42 Wills Act 1970 …. P.12 Pt III …. 22.8 Pt VII …. 22.15 Pt IX …. 14.37 Pt XA …. 22.20 s 4 …. 22.16 s 6 …. 22.4 s 8 …. 4.1 s 8(b) …. 4.8, 4.9 s 8(c) …. 4.13 s 8(d) …. 4.15, 4.19 s 9 …. 22.30 s 10 …. 5.42 s 10(1) …. 5.48 s 10(2) …. 5.46 s 10(3) …. 5.48 s 10(4) …. 5.46 s 11 …. 4.13 s 14 …. 5.23

s 14(1)(b) …. 5.33 s 14(2) …. 5.32 s 14(3) …. 5.32 s 14A …. 5.35 s 14A(2) …. 5.41 s 15 …. 5.1, 5.2 s 15(b) …. 5.8 s 15(c) …. 5.9 s 16(1) …. 6.13 s 16(2) …. 6.13, 6.19 s 16(3) …. 6.13 s 20(1) …. 22.15 s 20(2)(a) …. 22.15 s 20(2)(b) …. 22.16 s 20(2)(c) …. 22.23 s 20(2)(d) …. 22.30 s 21(1) …. 22.17 s 21(2) …. 22.18 s 21(3) …. 22.19 s 24 …. 22.22 s 26(1) …. 7.11 s 26(1)(a) …. 4.5, 6.6, 7.29, 8.67 s 26(1)(b) …. 7.10 s 26(1)(c) …. 8.72 s 26(1)(d) …. 8.76 s 26(1)(e) …. 8.73 s 26(1)(f) …. 7.11, 8.75 s 26(1)(g) …. 7.11, 8.75 s 27(1) …. 7.19 s 27(2) …. 7.19 s 27(3) …. 7.19 s 28(1) …. 14.8 s 28(2) …. 14.9 s 28(3) …. 14.8 s 28A …. 8.44 s 28A(1) …. 8.44

s 28A(2) …. 8.44 s 28A(3) …. 8.44 s 31 …. 8.53 s 32 …. 4.31 s 32(1) …. 4.36 s 32(2) …. 4.52 s 32(3) …. 4.51 ss 32A–32E …. 22.20 s 34 …. 4.31 ss 39–48 …. 3.1 s 40(1) …. 3.3 s 40(2)(a) …. 3.21 s 40(2)(b) …. 3.5 s 40(4) …. 3.21 s 41 …. 3.4 s 41(1)(d) …. 3.16 s 41(1)(f) …. 3.16 s 42 …. 3.4 s 42(1)(b) …. 3.16 s 42(1)(c) …. 3.3 Wills Act Amendment Act 1855 …. 21.66 Wills Amendment Act 2007 …. 4.21 Wills Amendment (International Wills) Act 2012 …. 22.20

CANADA ALBERTA Administration of Estates Act 2000 s 26 …. 11.53 Wills and Succession Act 2010 Pt 2 Div 3 …. 22.20 Pt 5 Div 2.… 15.5 s 17 …. 4.21 s 18 …. 4.21 s 37 …. 4.31 s 38 …. 4.31

s 93 …. 19.1 s 94 …. 17.49 s 102 …. 20.4 s 106 …. 17.48 Sch …. 22.20

BRITISH COLUMBIA Wills, Estates and Succession Act 2009 Pt 4 Div 6.… 15.5 s 38 …. 4.21 s 53(1) …. 7.80 s 53(2) …. 7.81 s 53(3) …. 7.72 s 58 …. 4.31 s 66 …. 17.49 s 83 …. 22.20 s 103 …. 11.53 s 155 …. 17.48 Sch …. 22.20 Wills Variation Act 1996 …. 15.5

MANITOBA Wills Act 2004 Pt III …. 22.20 s 5 …. 4.21 s 23 …. 4.31 Sch …. 22.20

NEW BRUNSWICK Dependants’ Relief Act 1996 s 23(1) …. 20.11 Probate Court Act 1982 s 52 …. 11.53 Provision for Dependants Act 1973 …. 15.5

Provision for Dependants Act 2012 …. 15.5 s 3 …. 17.49 s 16 …. 20.4 Wills Act 1973 s 5 …. 4.21 s 35.1 …. 4.31

NOVA SCOTIA Probate Act 2000 s 24 …. 11.53 Testators’ Family Maintenance Act 1989 …. 15.5 s 3(2) …. 17.49 s 5(1) …. 19.1 s 9 …. 17.48 s 16(1) …. 20.4 s 17 …. 17.12 s 18 …. 20.11 Wills Act 1989 s 8A …. 4.31 s 9 …. 4.21

ONTARIO Succession Law Reform Act 1990 Pt V.… 15.5 s 5 …. 4.21 s 42 …. 22.20 s 43 …. 22.20 ss 57–79.… 15.5 s 59 …. 17.49 s 62(1) …. 19.1 s 64 …. 20.17 s 67 …. 17.48 s 71 …. 20.4 s 72(1)(a) …. 20.4

s 77(1) …. 20.11

SASKATCHEWAN Administration of Estates Act 1998 s 19 …. 11.53 Dependants’ Relief Act 1996 …. 15.5 s 8 …. 19.1 s 10 …. 20.4 s 17 …. 17.48 s 19 …. 20.11 Wills Act 1996 s 6 …. 4.21 s 37 …. 4.31 ss 41–51 …. 22.20 Sch …. 22.20

INTERNATIONAL Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions 1961 …. 22.15 Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons …. 22.3 Convention Providing a Uniform Law on the Form of an International Will 1973 …. 22.20 art 1.… 22.20 arts 2–6.… 22.20 art 10.… 22.20 art 11.… 22.20 art 14.… 22.20

NEW ZEALAND Administration Act 1969 s 6(1) …. 10.27 s 6(5) …. 11.60 s 6(6) …. 11.60

s 9A …. 11.38, 11.46 s 10 …. 11.38 s 12 …. 10.64 s 50(a) …. 14.63 s 63 …. 10.6 ss 64–67 …. 11.119 s 81 …. 9.13 s 82(1) …. 9.13 Debts of Deceased Persons Act 1881 …. 21.26 Family Protection Act 1908 …. 21.60 Family Protection Act 1955 …. 15.5, 16.12 s 2(5) …. 20.4 s 3(1A) …. 16.12 s 3(2) …. 18.44 s 11A …. 17.45 s 13 …. 9.47 Law Reform Act 1944 s 3 …. 1.38 Law Reform (Testamentary Promises) Act 1949 …. 1.38, 19.32 s 2 …. 1.38 s 3(1) …. 1.38 s 3(2)(a) …. 1.38 s 3(8) …. 1.38 Simultaneous Deaths Act 1958 s 3(1)(d) …. 11.88 Social Security Act 1964 …. 9.47 Succession (Homicide) Act 2007 …. 7.54 Testator’s Family Maintenance Act 1906 …. 15.5 Wills Act 2007 s 14 …. 4.31 s 14(2) …. 4.31 s 18(3)(a)(ii) …. 5.31 s 18(3)(b) …. 5.32 s 30 …. 1.40 s 30(3) …. 1.42 s 32 …. 8.44

s 32(1) …. 8.45 ss 33–38 …. 4.21

UNITED KINGDOM Administration of Estates Act 1869 (Hinde Palmer’s Act) …. 21.46 s 1 …. 14.16 Administration of Estates Act 1925 …. 21.17 s 6(1) …. 10.64 s 7 …. 10.83 s 17 …. 11.112 s 27(1) …. 11.109 s 27(2) …. 11.109 s 28 …. 10.20 s 33 …. 9.13 s 34 …. 14.3 s 35 …. 14.8 s 42 …. 10.78 s 44 …. 14.28 s 45(1)(c) …. 9.22 s 45(1)(d) …. 9.22 Sch 1 Pt 2 …. 14.3 Administration of Estates Act 1977 s 10 …. 14.14 Administration of Justice Act 1932 s 2 …. 22.4 Administration of Justice Act 1982 s 17 …. 4.8 s 18(1) …. 5.33 s 18B …. 5.33 s 21 …. 8.44 s 27 …. 22.20 s 28 …. 22.20 s 73(7) …. 5.33 s 76(11) …. 5.33 Sch 2 …. 22.20

Chancery Procedure Act 1852 s 44 …. 11.54 Colonial Probates Act 1892 …. 21.56, 21.80 Court of Probate Act 1857 (20 & 21 Vict, c 77) …. 11.71, 21.16 s 19 …. 11.73 s 73 …. 11.39 s 77 …. 11.108 s 78 …. 11.108 s 79 …. 10.58 Forfeiture Act 1870 …. 7.47 Forfeiture Act 1982 …. 7.51, 7.68, 19.23 s 3 …. 19.23 Inheritance Act 1833 …. 21.15, 21.22 Inheritance (Family Provision) Act 1938 …. 15.5, 21.17 Inheritance (Provision for Family and Dependants) Act 1975 …. 15.5 s 1(1) …. 17.60 s 1(2) …. 17.60 s 1(1A) …. 16.53 s 3 …. 19.1 s 5 …. 20.17 s 8(2) …. 20.4 s 9(1) …. 20.72 s 11 …. 20.4 s 15(1) …. 18.13 s 15ZA …. 18.13 Intestate Estates Act 1890 …. 21.49, 21.58 Intestates’ Estates Act 1952 …. 9.56 Law of Property and Trustees Relief Amendment Act 1859 …. 14.54 s 29 …. 14.53 Land Transfer Act 1897 …. 21.16 Law of Property Act 1925 …. 21.62 s 177 …. 5.24 s 184 …. 11.85 Law Reform (Miscellaneous Provisions) Act 1934 …. 12.20 Law Reform (Succession) Act 1995 …. 9.75 Land Registration Act 2002 …. 1.27

Legitimacy Act 1926 …. 21.17 Mental Capacity Act 2005 …. 3.1 Mental Health Act 1959 …. 3.1 Mental Health Act 1983 Pt VII …. 3.1 s 96 …. 3.1 s 97 …. 3.1 Presumption of Death Act 2013 …. 11.7 s 1 …. 11.7 s 2 …. 11.7 s 2(3) …. 11.7 s 2(4) …. 11.7 Public Trustee Act 1881 …. 21.47, 21.48 Real Estate Charges Act 1854 …. 14.8, 21.42 Real Estate Charges Act 1867 …. 14.8, 21.25 Real Estate Charges Act 1877 …. 14.8 Senior Courts Act 1981 s 114(1) …. 10.14 Statute of Distributions 1685 …. 21.10, 21.52, 21.55 Statute of Distributions 1670 …. 21.10, 21.36, 21.39, 21.52, 21.54 Statute of Frauds 1677 (29 Car II, c 3) …. 4.21, 21.11 s 4 …. 1.37, 11.91 s 5 …. 21.11 Statute of Fraudulent Devises 1691 …. 21.12 Statute of Uses 1535 …. 21.6 Statute of Wills 1540.… 21.9 Statute on the Administration of Estates 1357 …. 21.8 Succession (Scotland) Act 2016 s 9 …. 11.85 s 10 …. 11.85 Supreme Court of Judicature Act 1875 s 10 …. 14.10 Supreme Court of Judicature (Consolidation) Act 1925 …. 21.17 Trustee Act 1925 s 36 …. 10.77 s 50A …. 13.1

s 57 …. 13.1 Wills Act 1540 …. 1.2 Wills Act 1751 …. 21.13 Wills Act 1837 …. P.21, 4.53, 21.15, 21.22, 21.42, 21.66, 21.73 s 9 …. 4.1, 4.8 s 11 …. 4.21 s 15 …. 4.53 s 18 …. 5.23, 5.24 s 18(2) …. 5.33 s 19 …. 5.2 s 21 …. 5.42 s 22 …. 6.13 s 25 …. 7.10 s 26 …. 8.72 s 33 …. 7.20 Wills Act 1861 …. 21.50 Wills Act 1968 s 1(1) …. 4.56 Wills (Soldiers and Sailors) Act 1918 …. 4.21

UNITED STATES OF AMERICA Uniform Probate Code …. 9.8 §1-107(5) …. 11.7 §2-101(b) …. 9.8 §2-104 …. 9.17 §2-109(a) …. 9.74 §§2-201–2-214 …. 9.56 §2-502 …. 4.31 §3-102 …. 11.29 §§3-301–3-311 …. 11.29 §§3-401–3-414 …. 11.29 §3-603 …. 11.60 §3-610(c) …. 10.73 §3-717 …. 11.92 §5-203 …. 4.31

Abbreviations Books Certoma

G L Certoma, The Law of Succession in New South Wales, 4th ed, Lawbook Co, Australia, 2010

Dal Pont

G E Dal Pont, Equity and Trusts in Australia, 6th ed, Lawbook Co, Australia, 2015

Dal Pont, Law of Costs

G E Dal Pont, Law of Costs, 3rd ed, LexisNexis Butterworths, Australia, 2013

de Groot and Nickel

J K de Groot and B W Nickel, Family Provision in Australia, 5th ed, LexisNexis Butterworths, Australia, 2017

Haines

D M Haines, Construction of Wills in Australia, LexisNexis Butterworths, Australia, 2007

Hardingham, Neave and Ford

I J Hardingham, M A Neave and H A J Ford, Wills and Intestacy Law in Australia and New Zealand, 2nd ed, Lawbook Co Ltd, 1989

Jacobs

J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia, 8th ed,

LexisNexis 2016

Butterworths,

Australia,

Meagher, Gummow and Lehane

J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, 5th ed, LexisNexis Butterworths, Australia, 2015

Mortensen, Garnett and Keys

R Mortensen, R Garnett and M Keys, Private International Law in Australia, 3rd ed, LexisNexis Butterworths, 2015

Nygh

M Davies, A S Bell and P L G Brereton, Nygh’s Conflict of Law in Australia, 9th ed, LexisNexis Butterworths, 2014

Theobald

J R Martyn, J Evans-Gordon, A Learmonth, C Ford and T Fletcher, Theobald on Wills, 18th ed, Sweet & Maxwell, London, 2016

Williams, Mortimer and Sunnucks

J R Martyn and N Caddick, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 20th ed, Sweet & Maxwell, London, 2013

Reports NSWLRC, Report 110

New South Wales Law Reform Commission, Uniform Succession Laws: Family Provision, Report 110, May 2005

NSWLRC, Report 116

National Committee for Uniform Succession Laws, Uniform Succession

Laws: Intestacy, New South Wales Law Reform Commission, Report 116, April 2007 QLRC, MP 28

National Committee for Uniform Succession Laws, Report to the Standing Committee of Attorneys General on Family Provision, Queensland Law Reform Commission, Miscellaneous Paper 28, 1997

QLRC, MP 29

National Committee for Uniform Succession Laws, Consolidated Report to the Standing Committee of AttorneysGeneral on the Law of Wills, Queensland Law Reform Commission, Miscellaneous Paper 29, December 1997 (Note that this is the same report as National Committee for Uniform Succession Laws, Uniform Succession Laws: The Law of Wills, New South Wales Law Reform Commission, Report 85, 1998.)

QLRC, Report 58

National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General, Queensland Law Reform Commission, Report 58, July 2004

QLRC, Report 65

National Committee for Uniform Succession Laws, Administration of Estates of Deceased Persons, Queensland Law Reform Commission, Report 65,

April 2009 (in four volumes) VLRC, 1994

Victorian Law Reform Committee, Reforming the Law of Wills, Parliament of Victoria, Final Report, May 1994

VLRC, 2013

Victorian Law Reform Commission, Succession Laws, August 2013

Legislation and rules Wills legislation ACT:

Wills Act 1968

NSW:

Succession Act 2006

NT:

Wills Act 2000

Qld:

Succession Act 1981

SA:

Wills Act 1936

Tas:

Wills Act 2008

Vic:

Wills Act 1997

WA:

Wills Act 1970

Administration and probate legislation ACT:

Administration and Probate Act 1929

NT:

Administration and Probate Act 1969

NSW:

Succession Act 2006

Qld:

Succession Act 1981

SA:

Administration and Probate Act 1919

Tas:

Administration and Probate Act 1935 (although for the purposes of intestacy the Intestacy Act 2010 is the operative statute)

Vic:

Administration and Probate Act 1958

WA:

Administration Act 1903

Trustee legislation ACT:

Trustee Act 1925

NSW:

Trustee Act 1925

NT:

Trustee Act 1893 (Trustee Act 1907 abbreviated as NT 1907)

Qld:

Trusts Act 1973

SA:

Trustee Act 1936

Tas:

Trustee Act 1898

Vic:

Trustee Act 1958

WA:

Trustees Act 1962

Family provision legislation ACT:

Family Provision Act 1969

NSW:

Succession Act 2006 (see Pt 3.2) (the former legislation, the Family Provision Act 1982, abbreviated as NSW 1982)

NT:

Family Provision Act 1970

Qld:

Succession Act 1981 (see Pt 4)

SA:

Inheritance (Family Provision) Act 1972

Tas:

Testator’s Family Maintenance Act 1912

Vic:

Administration and Probate Act 1958 (see Pt IV)

WA:

Family Provision Act 1972

Rules ACT CPR:

Court Procedures Rules 2006

NSW RSC:

Supreme Court Rules 1970

NSW UCPR: Uniform Civil Procedure Rules 2005 NT RSC:

Supreme Court Rules 1987

Qld UCPR:

Uniform Civil Procedure Rules 1999

SA PR:

Probate Rules 2004

SA SCCR:

Supreme Court Civil Rules 2006

Tas PR:

Probate Rules 1936

Tas RSC:

Supreme Court Rules 2000

Vic RSC:

Supreme Court (General Civil Procedure) Rules 2015

Vic 2014:

Supreme Court (Administration and Probate) Rules 2014

WA RSC:

Supreme Court Rules 1971

WA 1967:

Non-contentious Probate Rules 1967

Contents Preface Table of Cases Table of Statutes Abbreviations

Prologue Context and Overview

Part I

Wills and Intestacy

1.

Nature of a Will

2.

Mental Elements

3.

Statutory Wills

4.

Formal Elements

5.

Revocation and Amendment of Wills

6.

Republication and Revival of Wills

7.

Gifts by Will

8.

Construction of Wills

9.

Intestacy

Part II

Personal Representatives

10. The Office of Personal Representative

11. Grants of Representation 12. Duties of Personal Representatives 13. Powers and Entitlements of Personal Representative 14. Allocation and Distribution of Estate

Part III Family Provision 15. Concept of Family Provision 16. Eligibility to Apply for Family Provision 17. Applications for Provision 18. Particular Classes of Applicants 19. Relevant Considerations in Making Order 20. Family Provision Orders

Part IV Miscellaneous Matters 21. A Statutory History of Wills in England and Australia (Contributed by Professor Stefan Petrow, School of Humanities, University of Tasmania)

22. Conflicts of Law in Succession 23. Costs in Matters Involving Deceased Estates 24. Succession Lawyers’ Responsibility and Liability Index

[page 1]

PROLOGUE

Context and Overview Terminology ‘Will’ and ‘intestacy’ ‘Executor’ and ‘administrator’ ‘Probate’ and ‘administration’ The ‘estate’ ‘Personal estate’ and ‘real estate’ ‘Devise’, ‘bequest’, ‘legacy’ and ‘residue’

P.1 P.1 P.2 P.3 P.4 P.10 P.11

Relevant Statutes Wills legislation Intestacy legislation Administration and probate legislation Family provision legislation Application of trustee legislation Other legislation

P.12 P.12 P.13 P.14 P.15 P.16 P.17

Structure of the Book Wills and intestacy Personal representatives Family provision Miscellaneous matters

P.18 P.18 P.19 P.20 P.21

Reform

P.22

Terminology ‘Will’ and ‘intestacy’

P.1 Certain terms regularly figure in parlance dedicated to succession law. At its core is the ‘estate’1 of a deceased person, which forms what the deceased can leave, whether by will or pursuant to the intestacy rules, to his or her beneficiaries. A ‘will’ is a document that purports to dispose of the estate of a person (the ‘testator’)2 upon his or her death, and ordinarily must meet certain formalities.3 A document that seeks to dispose a person’s property during his [page 2] or her lifetime (inter vivos) cannot, by definition, be a will.4 A ‘codicil’ is a supplementary or subsidiary document to a will, that varies but otherwise confirms the will.5 A person who dies without leaving a valid will is said to die ‘intestate’, in which case the relevant estate is distributed according to intestacy rules prescribed by statute.6

‘Executor’ and ‘administrator’ P.2 Whether a person dies leaving a valid will — and thus dies ‘testate’ — or is an intestate, someone must be responsible for effecting the distribution of the person’s estate. If there is a valid will, its terms almost invariably nominate an ‘executor’, which as the title suggests is a person charged with the responsibility to effect — that is, execute — the distribution of the estate according to the terms of the will.7 Where there is no person nominated as executor, or for some reason the nominee will not or cannot act, or is not otherwise suitable for the position, the court appoints an ‘administrator’ for this purpose.8 This appointment is also the appropriate course where the deceased dies intestate. Executors and administrators are collectively termed ‘personal representatives’ of the deceased. The persons who receive distributions of the deceased’s property, under either the will or the intestacy rules, are usually termed ‘beneficiaries’.

‘Probate’ and ‘administration’ P.3

The official proving of the deceased’s will is known as ‘probate’, and is a

prerequisite to the executor taking title to property forming the testator’s estate, which lies at the core of the subsequent executorial function.9 The language of probate is inapt in circumstances where an administrator is to be appointed. An administrator is instead granted ‘letters of administration’ (sometimes abbreviated to ‘administration’).10 The collective term for grants of probate or administration is ‘representation’.

The ‘estate’ P.4 At the core of succession law are rules pertaining to the transfer (sometimes termed ‘devolution’) of a person’s property upon his or her death. It is common, to this end, to refer to the distribution of a deceased person’s estate to beneficiaries of that estate. In line with the basic property law notion encapsulated in the maxim nemo dat quod non habet — no one can give what he or she does not have — it is critical to identify what forms part of a deceased person’s estate, and can therefore devolve (by will or the intestacy rules) upon that person’s death. It is axiomatic that no person can, by his or her will, effectively dispose of property owned by a third party. The same translates to property held solely as trustee, that is, property legally owned by the deceased but in which equitable ownership vests in others. Otherwise a trustee could convert legal ownership to beneficial ownership unilaterally via his or her will. The consequences, so far as trusteeship is concerned, of the death of a sole trustee11 depend [page 3] on the jurisdiction.12 Any trust obligation usually stems from a formal trust deed; yet it can be imposed by law, for instance, upon the survivor of a mutual wills arrangement (by means, it has been held, of a constructive trust).13 Nor can property owned by a company (or other incorporated body) be effectively disposed by will; after all, a characteristic of the separate entity underscoring the corporate structure is perpetual succession, so that the entity survives the death of its controllers or shareholders. What can be bequeathed

are shares in the entity owned beneficially by the deceased. P.5 That the governing rules of superannuation funds commonly provide for the payment of death benefits upon a member’s death does not mean that those benefits form part of the member’s estate. In most instances they do not, chiefly because the governing rules often grant the trustee of the fund a discretion as to whom those benefits will be distributed. The discretion is ordinarily targeted at, inter alia, persons wholly or partly dependent on the member at the date of his or her death, and so payment of death benefits may be effected otherwise than to the member’s estate. If so, there is no need for a grant of probate as a precondition to the fund trustee making a legitimate death benefit distribution,14 which cannot in turn be upset under a family provision claim (except possibly in New South Wales under notional estate provisions).15 If, however, the trustee exercises the discretion to pay the benefits to the estate, they form part of the estate. The discretion can, in any case, be constrained via a current and effective binding death benefit nomination, which is possible to effect by the terms of a will.16 P.6 Consistent with the treatment of superannuation death benefits, the estate can include the proceeds of a life insurance policy that pays the estate of the deceased as the beneficiary, but not a policy that pays other than the estate.17 P.7 There are circumstances where an interest or right of a proprietary nature terminates upon death. Such an interest or right is likewise incapable of forming part of the person’s estate for the purposes of succession. For example, an interest in property as a joint tenant — pursuant to which each joint tenant is jointly entitled to the entire estate — cannot form part of the deceased joint tenant’s estate, because the law declares that this interest devolves by operation of law upon the surviving joint tenant(s) (under the ‘right of survivorship’ or jus accrescendi).18 Nor can any property over which the deceased held no more than a life estate, or a licence [page 4]

terminable at death, form part of the deceased’s estate. The same may be said vis-à-vis rights to income that do not survive the deceased’s death (say, an annuity) and rights, more generally, that are purely personal to the deceased. P.8 Subject to the foregoing, any property, whether real or personal, owned beneficially by a person on his or her death can be effectively devolved by will or form part of the estate under the intestacy rules. The same applies to incorporeal rights — such as shares or other securities, debts due to the deceased and licences — to which the deceased remains entitled as at his or her death. A broad characterisation of ‘property’ for this purpose draws support from statutory definitions in several jurisdictions.19 But it cannot extend to things that are neither property nor rights, such as mere expectancies,20 which thus cannot devolve upon death. Aside from statutory provision facilitating organ donation or the gifting of a body for medical purposes,21 the common law’s refusal to recognise property in a corpse22 precludes a deceased, by will or otherwise, from dictating the disposition of (parts of) his or her own body. But this does not outright prevent the devolution upon death of sperm samples (or, presumably, eggs) from the deceased, which have been treated as having the character of property for succession (and other) purposes. Most recently, in Roblin v Public Trustee for the Australian Capital Territory23 the deceased’s frozen sperm samples were found to be his ‘property’, and accordingly capable of forming part of his estate. Mossop AsJ remarked that merely because the semen was formerly part of a human body, and constitutes human gametes, was insufficient to oust this conclusion.24 The samples, stored by a defendant (a fertility clinic), which held them as bailee, were ordered to be returned to the deceased’s personal representatives, for the benefit of his spouse who took under the intestacy rules.25 P.9 The increasing prevalence of what are termed ‘digital assets’ raises challenges when it comes to their devolution upon death. In view of the constant evolution of technology and consumer preferences, digital assets are not amenable to comprehensive definition, but ultimately focus on the deceased’s presence in the digital sphere. This may include on-line banking sites, cloud storage, domain names, websites (dealing with, for instance, social media, photo sharing, etc) and email accounts.26 Digital assets may have

financial and/or sentimental value, making access thereto potentially significant. Their presence in the digital sphere may also create difficulties when it comes to conflicts of laws. Issues surrounding the devolution of digital assets are complicated by the fact that many digital assets are subject to both layers of protection and, significantly, service agreements between the deceased and digital service providers. These agreements, often aimed at client [page 5] privacy,27 may constrain third party access in the event of a client’s death.28 Assuming that digital assets can otherwise be viewed as a deceased’s ‘property’, service agreements that prohibit devolution or delete accounts on death, it is said, ‘threaten the very nature of … succession law by allowing parties to opt out of one of the most fundamental rights of property — the right to devise’.29 The tensions between property, access and privacy make legislating in this area a difficult balancing task, as evidenced in the United States by the terms of the Uniform Law Commission’s Uniform Fiduciary Access to Digital Assets Act,30 which while aiming to authorise personal representatives to access and manage digital assets, nonetheless respects privacy by subjecting the access to the extent permitted under applicable law and any applicable terms of a service agreement.31 As for Australian law, the terms of a service agreement, to the extent that these constrain the right to devise, will likely prevail; after all, a person cannot, by bequeathing an asset subject to a contractual obligation, in so doing ordinarily nullify that obligation. But this does not deny the advisability of identifying digital assets by way of will, and authorising and enabling an executor to access digital assets.

‘Personal estate’ and ‘real estate’ P.10 Historically in England the personal estate of the deceased fell within the jurisdiction of ecclesiastical courts, and passed directly to the executor or,

where administration was necessary, to the administrator.32 A deceased’s real estate, being subject to courts of common law, instead vested immediately in the deceased’s heirs, thus bypassing the executor. The administrative fusion of law and equity challenged this distinction, and prompted provision in probate legislation, including in Australia, designed to assimilate the treatment of a deceased’s personal and real estate, uniformly to vest in personal representative(s).33 To the extent that reference remains — in legislation, case law and testamentary instruments — to a deceased’s personal estate, it encompasses all property, corporeal and incorporeal, of the estate other than real estate.

‘Devise’, ‘bequest’, ‘legacy’ and ‘residue’ P.11 Consequent upon the historical distinction between personal estate and real estate, the law adopted discrete terminology directed to the disposition of each. It remains common in wills, judgments and general legal parlance, as well as in succession statutes in jurisdictions that have yet to implement the uniform wills legislation, to find reference to this terminology. The term ‘devise’, it is said, ‘is properly applicable to a disposition of real estate, which is primâ facie its meaning’, whereas the word ‘bequeath’ applies to the personal estate.34 Today it is simpler to use the generic words ‘give’ or ‘dispose’. [page 6] The distinction must nonetheless be made between a testamentary gift of specific property by will and a gift of the ‘residue’. A gift of specific property is termed a ‘specific devise or bequest’; if it involves a specific gift of money or personal property in particular, however, the term ‘legacy’ is often used (though the context in which the term appears in a will may reveal an intention that it cover a gift of real property).35 A ‘specific devise or bequest’ has been described as ‘a thing taken apart’, ‘given directly to the devisee or legatee … extracted from the testator’s estate before the residue is ascertained’.36 ‘Residue’, therefore, ‘is what remains of the testator’s property after satisfying the specific gifts’.37

Beyond ‘specific’ legacies, the law recognises ‘general’ and ‘demonstrative’ legacies.38 The former refers to a gift to which no specific asset or fund is attached. Instead the gift is payable out of the general assets of the estate; for instance, a gift of a set number of shares. This differs from a ‘demonstrative’ legacy, which is a ‘pecuniary’ legacy — that is, a legacy that is a disposition of money — directed to be paid out of a particular fund; for instance, a monetary gift to be paid out of the proceeds of sale of a particular asset.39

Relevant Statutes Wills legislation P.12 Although succession law had its genesis at common law, it is now heavily governed by statute. In each jurisdiction legislation addresses the creation, revocation, rectification and construction of wills. In New South Wales and Queensland it is found within broader succession statutes,40 whereas elsewhere it takes the form of dedicated wills statutes.41

Intestacy legislation P.13 As the law does not compel a person to make a will, there is a need for default ‘intestacy’ rules governing the distribution of deceased estates (or part thereof) that are not disposed of by will. Again, in New South Wales and Queensland intestacy rules are found in general succession legislation.42 Elsewhere, excepting Tasmania, they are located within administration and probate statutes.43 Tasmania is unique in enacting a dedicated intestacy statute.44

Administration and probate legislation P.14 Other than in Queensland, administration statutes govern the grant of representation — being probate or administration — and catalogue various incidents of the grant.45 In Queensland the same is found in a general succession statute.46

[page 7]

Family provision legislation P.15 A statutory incursion into freedom of testation — a core principle underscoring succession law47 — and also the operation of the intestacy rules is found in family provision legislation. It empowers the court to alter the operation of a testator’s will or the intestacy rules in favour of a person who, as a result of the will or those rules, lacks adequate and proper provision for his or her maintenance and advancement. In New South Wales and Queensland the relevant provisions are located within a general succession statute.48 In Victoria they are found in administration and probate legislation.49 Elsewhere dedicated family provision statutes are utilised.50

Application of trustee legislation P.16 The trustee legislation in each jurisdiction clearly applies to persons who act as trustees of deceased estates. But it is not constrained in its application to trustees as understood by the general law. It declares that the term ‘trust’, for its purposes, includes ‘the duties incident to the office of legal representative of a deceased person’, and ‘trustee’ accordingly includes a legal representative.51 Although only the Victorian and Western Australian ‘trustee’ definitions are prefaced by the phrase ‘where the context admits’, the same applies as a matter of sense elsewhere. In any event, on the occasions where the trustee legislation overlaps with dedicated succession legislation, it stands to reason that the latter will apply in priority.

Other legislation P.17 Various other statutes contain provisions that impact on the administration of deceased estates. For instance, in some jurisdictions certain provisions applicable to personal representatives are found in property statutes, albeit against recommendations for relocation within dedicated succession statutes. Also, the court’s jurisdiction vis-à-vis administration of deceased

estates is sometimes found in statutes constituting the relevant court, and on other occasions within the administration and probate statutes. These, coupled with other statutory provisions that affect succession law, are noted throughout this work.

Structure of the Book Wills and intestacy P.18 The body of this work is structured in four parts. Part I addresses the law pertaining to wills and intestacy. It commences, in Chapter 1, with an explanation of the core characteristics of a will, and how a will compares and contrasts with other transactions and relationships. It then discusses contracts relating to wills, before an excursus into the law of mutual wills and joint wills. The chapter is designed to convey to readers the nature of a will in Australian law. Giving effect to testamentary disposition as an exercise in personal freedom — namely the freedom to dispose of one’s property as one deems fit — Chapter 2 targets the requisite mental [page 8] elements underscoring a valid will. Beyond the question of mental capacity, it inquires into the need for a testator’s testamentary intention, and knowledge and approval, as elements germane to will-making. It also identifies factors that vitiate a true testamentary intention, including undue influence, fraud and mistake. This chapter must be read, in any case, subject to the court’s statutory power to make wills for persons who lack mental capacity or are under-age, coverage of which is found in Chapter 3. The validity of wills moreover rests on the fulfilment of statutory formalities, discussed in Chapter 4, as are qualifications thereto, namely the judicial dispensing power, privileged wills in some jurisdictions, the ability to incorporate a document into a will by reference, and the law of secret trusts. That wills are, by their very nature, ambulatory52 dictates that a testator may

revoke or alter a will at any time. The rules pertaining to revocation and alteration of wills, and their impact, are covered in Chapter 5. The law also envisages that testators may republish and revive wills, and prescribes the means to do so. Chapter 6 addresses this. As the core of will-making is to make gifts to persons whom the testator wishes to benefit, Chapter 7 targets the rules applicable to testamentary gifts. Commencing with an identification of the classes of gift recognised by law, the chapter goes on to identify occasions where a testamentary gift proves to have no effect, whether because of lapse, ademption, disclaimer or forfeiture. It concludes by cataloguing the impact of equity here, via the equitable doctrines of satisfaction, ademption and election in their application to succession law. As wills must, as a general principle, be in writing as a condition of validity, giving effect to a testator’s intention is primarily an exercise in construing the testamentary words used. Chapter 8 identifies the curial approach to construction in this context, by reference to what are termed general and subsidiary principles of construction. Their application to particular gifts to persons, and of property, are explained, as are parameters to the admissibility of extrinsic evidence as an aid to construction. Part I concludes with a statement of the rules for the distribution of a deceased’s estate in the event that he or she has not left a valid will, or has via a valid will not disposed the entire estate. These rules, known as the ‘intestacy rules’, are discussed in Chapter 9, and prescribe an order for the distribution of the estate.

Personal representatives P.19 Part II of the book is devoted to the law governing personal representatives in the administration of a deceased estate. It first addresses, in Chapter 10, the nature of the office of personal representative, and in particular the circumstances surrounding the appointment of executors, administrators and trustees, as well as occasions where that office may be vacated. What follows, in Chapter 11, is a lengthy treatment of the law governing grants of probate or administration (collectively ‘representation’), first explaining the court’s jurisdiction to make the grant, before passing to

various forms of grant and their impact. The chapter then investigates the occasions that justify revoking a grant, before concluding by cataloguing occasions in which administration may occur without a formal grant. Personal representatives are subject to various duties, stemming from both the general law and statute. These duties, and their boundaries, are the subject of Chapter 12. The duties ordinarily commence with disposal of the deceased’s remains, but at their core target the getting in and preservation of the deceased’s estate, before its distribution in accordance with the deceased’s will or the intestacy rules. Underscoring the management of the estate for this purpose are proscriptive fiduciary duties. The ramifications of breaches of duty are explained in the final part of the chapter. The proper administration of a deceased estate necessarily requires [page 9] that personal representatives have various powers and entitlements, and these are identified and elaborated in Chapter 13. Ending Part II, in Chapter 14, are the legal rules governing the distribution of the estate. Here the personal representative’s first task is to meet legitimate claims on the estate. The law has developed rules applicable to debtorexecutors and debtor-legatees, and generally recognises a 1-year time frame (an ‘executor’s year’) wherein distribution ought to be effected. Statute protects personal representatives against further claims against an estate if they follow the procedure prescribed.

Family provision P.20 Statute in each jurisdiction empowers the court to make provision from a deceased estate in favour of a person for whom the deceased has not made adequate provision. Part III of the book covers the law on this topic, which represents the most extensive impingement on testamentary freedom known to the law. It commences, in Chapter 15, by setting the scene for the jurisdiction via a discussion of its history and nature. What ensues in Chapter

16 is an identification of those persons eligible to apply for provision, the classes of which have broadened over time. The curial attitude to applications by specific classes of applicants — namely (current and former) spouses, offspring, grandchildren, stepchildren and other family-type relations — is explained in Chapter 18. In the intervening chapter are discussed various procedural matters surrounding applications for provision, timing and extension of time being one of these, and the substantive inquiry to which the court is directed. Aside from the class of applicant, the factors that impact upon the curial discretion to order provision are catalogued in Chapter 19. Though stipulated in varying degrees by statute between jurisdictions, included are the size of the estate, the character and conduct of the applicant, the conduct of the deceased, and the impact of an order on the availability of pension or other social security payments. Part III ends with Chapter 20, wherein are collapsed the principles surrounding family provision orders themselves. Amongst other matters, the chapter identifies the form and effect of orders, the occasions where orders may be varied, suspended or discharged, the making of appeals against orders, and the approach to quantifying an order. Restrictions on orders made post-distribution of the estate are mollified in New South Wales via notional estate legislative provisions, which culminate the chapter.

Miscellaneous matters P.21 The content of the final Part of the book, unimaginatively branded as ‘miscellaneous’, should not be understood as somehow less important or subsidiary to what precedes it. In particular, the first chapter in this Part, dealing with a statutory history of wills, is arguably core to understanding much of what appears earlier in the book. It confines itself to the English history to 1837, the year in which the English Parliament enacted one of its most influential (and longstanding) pieces of legislation, the Wills Act 1837. The Australian statutory history is catalogued to 1945, and statutory initiatives thereafter are identified in the substantive body of the text. To a person reading this book from beginning to end, the chapter reveals that the ‘modern’ law of succession in Australia is, in many ways, not modern at all.

Private international law aspects of succession law are addressed in Chapter 22. The topic is of considerable practical importance, but must sit outside the main Parts of the book because it spreads across each of them. The chapter, to this end, explains conflicts of law rules applicable in the context of wills and intestacies, the administration of estates and, finally, family provision applications and orders. Litigation over deceased estates has been a feature of most cultures. In the Australian (and English) context, where the costs of litigation ordinarily follow the event, an important consideration in any such litigation is the extent to which costs are ordered to come from [page 10] the estate itself. The historical tendency to allow costs from the estate, even to unsuccessful litigants, has been constrained in modern times, and the principles that underscore the curial costs discretion in this regard are discussed in Chapter 23. The book concludes with the topic of lawyers’ obligations in the succession law environment. While lawyers who practise succession law are subject to precisely the same legal and ethical obligations that apply to all lawyers, there are aspects of law and ethics that are accentuated in this field of practice. These aspects are identified and explained in Chapter 24.

Reform P.22 Australian succession law is state and territory based. While the relevant legislation derived in substantial part from English statutes, as appears evident from the discussion in Chapter 21, uniformity as between jurisdictions has proven elusive. Calls for uniformity here are hardly new. Chiefly against the backdrop of initiatives first promulgated by the Standing Committee of Attorneys-General, through the auspices, it transpired, of the Queensland Law Reform Commission as the coordinating body for what is known as the National Committee for Uniform Succession Laws, the push towards

uniformity has garnered steam. The committee produced two reports in 1997, on the topics of wills and family provision. A decade later saw its report on the law of intestacy, on this occasion through the auspices of the New South Wales Law Reform Commission. Two years later the committee released its report — a substantial one in four volumes — on the administration of deceased estates. Each of these reports, coupled with various supplementary reports and earlier (and also subsequent) jurisdiction-specific reports,53 is referred to in this book, both as a backdrop for statutory reform, which in the wills arena has to date proven the most successful, and as a foundation for reform where it has yet to translate to statute. As to the latter, the book also cites various statutory and law reform avenues adopted in other common law countries, to contextualise Australian law.

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

12.

As to what forms part of the ‘estate’, see P.4–P.9. In this work the term ‘testator’ is used most commonly as a gender-neutral term. In most instances the traditional female ‘testatrix’ is avoided. As to these formalities, see Chapter 4. See 1.3. Green v Tribe (1878) Ch D 231 at 238 per Fry J. As to the intestacy rules, see Chapter 9. See 12.1. See 10.21. See 11.1, 11.29. See 10.21, 11.37–11.41. It should be noted that the term ‘administration’ is sometimes used to refer to the tasks of a personal representative — whether an executor or an administrator — in carrying out the functions attendant to the office. The position is different upon the death of one of multiple trustees who hold the trust property as joint tenants, in which case title to trust property passes to surviving trustees pursuant to the right of survivorship. If the property is instead held as tenants-in-common, the deceased trustee’s share passes to his or her personal representatives, upon whom, though, the office of trustee does not devolve because no person can legally act as trustee unless validly appointed by the settlor, under statute or by the court: Re Crunden and Meux’s Contract [1909] 1 Ch 690 at 695 per Parker J. This difficulty can be avoided by ensuring that trustees hold trust property as joint tenants, or by express provision in the trust instrument that the office and powers of a deceased trustee vest in his or her personal representatives. Statute in Tasmania, Victoria and Western Australia provides that, unless a contrary intention is expressed in the trust instrument, until the appointment of new trustees the personal representatives of the last surviving or continuing trustee may exercise or perform any power or trust given to the last surviving or continuing trustee: Conveyancing and Law of Property Act 1884 (Tas) s 34(1), (2); Trustee Act 1958 (Vic) ss 2(3), 22(2); Trustees Act 1962 (WA) ss 5(2), (3), 45(2). In this

13. 14. 15. 16. 17. 18. 19.

20. 21. 22. 23. 24. 25.

26.

27. 28.

29. 30.

event, the personal representatives of a sole surviving trustee may be ousted by an appointment of new trustees by the appointor (being the person empowered by the trust document to appoint new trustees). The Queensland trustee legislation deals with a vacancy in trusteeship caused by the death of the last surviving and continuing trustee by vesting the trust property in the Public Trustee pending the appointment of a new trustee: Trusts Act 1973 (Qld) s 16(2) (see also s 16(3)–(8)). This applies irrespective of contrary provision in the trust instrument: Trusts Act 1973 (Qld) s 10. In the remaining jurisdictions, which lack a statutory direction dealing with the vacancy in trusteeship, trust deeds should include a clause equivalent to the statutory provision in Tasmania, Victoria and Western Australia. Lacking such a clause, the persons upon whom the trust assets devolve hold the assets upon a bare trust for the new trustee(s): Robson v Flight (1865) 4 De G J & S 608; 46 ER 1054. See 1.49. D11-12/066; [2012] SCTA 27 at [43], [44]. As to the notional estate provisions in New South Wales, see 20.58–20.78. See 1.11, 1.12. See 1.10. See 1.13. In the Australian Capital Territory, New South Wales and Queensland ‘property’ is defined to mean any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and to include a thing in action: Legislation Act 2001 (ACT) Dictionary; Interpretation Act 1987 (NSW) s 21(1); Acts Interpretation Act 1954 (Qld) Sch 1. The probate statutes in Tasmania and Victoria state that ‘property’ includes a thing in action and any interest in real or personal property: Tas s 3(1); Vic s 5(1). Such as, for example, a beneficiary’s hope or expectation of a distribution from a discretionary trust. See 12.8. As to which see 12.5. (2015) 10 ACTLR 300; [2015] ACTSC 100 at [27]. Roblin v Public Trustee for the Australian Capital Territory (2015) 10 ACTLR 300; [2015] ACTSC 100 at [28]. Roblin v Public Trustee for the Australian Capital Territory (2015) 10 ACTLR 300; [2015] ACTSC 100 at [29]. See also Hecht v Superior Court of Los Angeles County (Kane) (1993) 20 Cal Rep 2d 275; Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207; [2010] QSC 118; BC201002482 at [33] per White J. See R Pinch, ‘Protecting Digital Assets After Death: Issues to Consider in Planning for Your Digital Estate’ (2014) 60 Wayne L Rev 545 at 549–50; S Stretton-Hill and B Saunders, ‘This is Your (Digital) Life’ (2015) 159 (13 January) Sol J 28. See M Gaied, ‘Data After Death: An Examination into Heirs’ Access to a Decedent’s Private Online Account’ (2016) 49 Suffolk UL Rev 281. There have been multiple instances in the United States of parents or family of a suicide victim whose attempts to access the deceased’s social media site — to investigate why he or she suicided — have been blocked by digital service providers who cite the terms of the ‘click-wrap’ service agreement to protect the privacy of the account holder: see generally R E Ferrante, ‘The Relationship Between Digital Assets and their Transference at Death: “It’s Complicated”’ (2013) 15 Loyola J Public Int Law 37. N M Banta, ‘Inherit the Cloud: The Role of Private Contracts in Distributing or Deleting Digital Assets at Death’ (2014) 83 Fordham L Rev 799 at 803. The Act, which was passed by the Uniform Law Commission (see ) on 16

31.

32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45.

46. 47. 48. 49. 50. 51. 52. 53.

July 2014, has been enacted in some 20 US States, and introduced in at least 13 others, as at the conclusion of 2016. See S D Haworth, ‘Laying Your Online Self to Rest: Evaluating the Uniform Fiduciary Access to Digital Assets Act’ (2014) 68 U Miami L Rev 535. Cf E D Barwick, ‘All Blogs go to Heaven: Preserving Valuable Digital Assets Without the Uniform Fiduciary Access to Digital Assets Act’s Removal of Third Party Privacy Protections’ (2016) 50 Ga L Rev 592. See generally 21.5–21.14. See 11.68–11.70. Phillips v Beal (1858) 25 Beav 25 at 27; 53 ER 545 at 546 per Sir John Romilly MR. See 7.2. Re Previté [1931] 1 Ch 447 at 453 per Luxmoore J; Re McConvill [1950] VLR 63 at 73 per Fullagar J. Re Akerman [1891] 3 Ch 212 at 217–18 per Kekewich J. See 7.4. Re Akerman [1891] 3 Ch 212 at 218 per Kekewich J. See 7.10–7.12. See Paget v Huish (1863) 1 H & M 663 at 668–71; 71 ER 291 at 293–4 per Page Wood VC. See 7.5–7.8. Succession Act 2006 (NSW) Ch 2; Succession Act 1981 (Qld) Pt 2. Wills Act 1968 (ACT); Wills Act 1938 (NT); Wills Act 1936 (SA); Wills Act 2008 (Tas); Wills Act 1997 (Vic); Wills Act 1970 (WA). Succession Act 2006 (NSW) Ch 4; Succession Act 1981 (Qld) Pt 3. Administration and Probate Act 1929 (ACT) Pt 3A; Administration and Probate Act 1969 (NT) Pt III Divs 4, 4A, 5; Administration and Probate Act 1919 (SA) Pt 3A; Administration and Probate Act 1958 (Vic) Pt I Div 6; Administration Act 1903 (WA) ss 12A–16. Intestacy Act 2010 (Tas) (before 1 January 2011, Administration and Probate Act 1935 (Tas) Pt V). Administration and Probate Act 1929 (ACT); Probate and Administration Act 1898 (NSW); Administration and Probate Act 1969 (NT); Administration and Probate Act 1919 (SA); Administration and Probate Act 1935 (Tas); Administration and Probate Act 1958 (Vic); Administration Act 1903 (WA). Succession Act 1981 (Qld) Pt 5. See R F Croucher, ‘How Free is Free? Testamentary Freedom and the Battle Between “Family” and “Property”’ (2012) 37 Aust J Leg Phil 9. Succession Act 2006 (NSW) Pt 3.2 (which applies in relation to the estate of a person who died on or after 1 March 2009; before this date the relevant legislation was the Family Provision Act 1982 (NSW)); Succession Act 1981 (Qld) Pt 4. Administration and Probate Act 1958 (Vic) Pt IV. Family Provision Act 1969 (ACT); Family Provision Act 1970 (NT); Inheritance (Family Provision) Act 1972 (SA); Testator’s Family Maintenance Act 1912 (Tas); Family Provision Act 1972 (WA) (before 16 January 2013 titled the Inheritance (Family and Dependants Provision) Act 1972 (WA)). Trustee Act 1925 (ACT) s 4(1)(b), Dictionary; Trustee Act 1925 (NSW) s 5; Trustee Act 1893 (NT) s 82; Trusts Act 1973 (Qld) s 5(1); Trustee Act 1936 (SA) s 4(1); Trustee Act 1898 (Tas) s 4; Trustee Act 1958 (Vic) s 3(1); Trustees Act 1962 (WA) s 6(1). See 1.2. Abbreviations for these reports are listed in the Abbreviations section.

[page 11]

PART I

Wills and Intestacy

[page 13]

CHAPTER 1

Nature of a Will Characteristics of a Will ‘Ambulatory’ ‘Testamentary’ Formalities Not limited to disposition of property Unitary in nature

1.1 1.2 1.3 1.4 1.5 1.6

Wills Distinguished from Other Transactions and Relationships Trusts settled inter vivos Nominations under life insurance policies Superannuation nominations Joint tenancies Joint bank accounts Property passing under a donatio mortis causa General principles Contemplation of death Conditional on death Parting with dominion Property the subject of a valid donatio mortis causa Aspects of proof

1.7 1.9 1.10 1.11 1.13 1.14 1.15 1.15 1.16 1.21 1.23 1.27 1.28

Contracts Relating to Wills Contract to make wills Contract to leave a legacy Contract to leave specific property Contract to leave ‘all property’ or residue Contracts not to revoke or alter wills Formalities and enforceability of testamentary contracts

1.29 1.31 1.32 1.33 1.34 1.36 1.37

Counterpoint — statutory regulation of testamentary promises in New Zealand Contracts and family provision claims Mutual Wills Nature and role of mutual wills Establishing the agreement Timing of (trust) interest under mutual wills Doctrine applicable even though no benefit to survivor Scope of the obligation on survivor of mutual wills agreement

1.38 1.39 1.40 1.40 1.42 1.45 1.47 1.48 [page 14]

Impact of remarriage Drafting and dangers in use of mutual wills Joint Wills

1.50 1.51 1.52

Characteristics of a Will 1.1 A will represents a declaration of intention,1 in prescribed form, of the declarant (the testator) as to the distribution of the testator’s property upon on his or her death. It ordinarily appoints a person to act as an executor to effect that intention and identifies the persons (beneficiaries) to whom the testator’s property is to be disposed. As a will represents no more than a declaration of a testator’s intention, it does not preclude a testator disposing of or otherwise dealing inter vivos with the property to which the will refers (subject to constraints imposed by contract law2 and the doctrine of mutual wills).3 The nature of a will is encapsulated by reference to its core characteristics, identified below.

‘Ambulatory’ 1.2

Wills are often described as ‘ambulatory’ in nature. The term

‘ambulatory’, in ordinary parlance, speaks to something movable or mobile. Its application to wills is reflected in various ways. For instance, it dictates that a will may, subject to its terms, include property acquired by the testator after it is executed. But more commonly the term reflects the notion that a will can be altered or revoked4 by the testator at any time prior to taking effect.5 It has been judicially observed, to this end, that if a document ‘is not revocable either by its terms or from any other reason then it is not operative only on death, and is not a [will]’.6 This means that, prior to the testator’s death, nominated beneficiaries under the will have only a contingent interest — a mere expectancy — namely one contingent on the testator not revoking the will or altering its terms in a manner that would frustrate that expectation.7 This ‘interest’ or expectancy, by its very nature, is unenforceable at law and therefore has no commercial value.8 As explained by an English judge over a century ago:9 … the beneficiaries under a will have no interest and no locus standi whatever until after the death of the testator. The will is ambulatory and may be revoked by the maker of it at any time before his death, and the result is that the execution of a will gives no immediate interest to the beneficiaries either in possession or in reversion. The will is of no effect until the death of the maker of it, and the consequence is that the making of it does not give rise to any conflict of control.

[page 15]

‘Testamentary’ 1.3 An instrument intended to have legal effect only on the testator’s death is ‘testamentary’. It has been judicially observed, to this end, that ‘whatever may be the form of a duly executed instrument, if the person executing it intends that it shall not take effect until after his death, and it is dependent upon his death for its vigour and effect, it is testamentary’.10 Aside from the other requirements of a will, therefore, the alleged testator must exhibit via the relevant document what is termed an animus testandi.11 A document described as a will (or codicil) raises a rebuttable presumption that the testator intended it to take effect only at his or her death, thereby evincing an animus testandi.12 Here the onus lies on those alleging that the document is not testamentary to

rebut this presumption. If the document lacks clear indications of testamentary import, however, the onus of proving that it is a will rests on those who propound it.13 In this respect, the intention of the alleged testator may be ascertained both from the language of the document and from extrinsic evidence.14

Formalities 1.4 Whereas the law does not require a will to assume a particular form or that it be couched in particular language, statute requires that it be in writing, signed by the testator or by some other person at his or her direction and in his or her presence, and witnessed by two or more independent persons.15 There are two exceptions to this principle. First, statute empowers the court in defined circumstances to dispense full compliance with these requirements.16 Second, in some jurisdictions there remains a category of ‘privileged will’, which generally dispenses with formalities in the case of military personnel engaged in actual military service and mariners or sailors at sea.17

Not limited to disposition of property 1.5 Whilst the usual will functions to dispose the testator’s property, a will may in addition, or exclusively, serve other functions. It may simply appoint executors, appoint guardians of infants, appoint trustees where a trust is created by the will, or confer special powers of executors and/or trustees, and it can revoke previous wills. To this end, there is case authority to the effect that ‘[t]he bare nomination of an executor, without giving any legacy, or appointing anything to be done by him, is sufficient to make it a will’,18 though as to all beneficial purposes there [page 16] is an intestacy.19 A will may also give directions as to burial and cremation or use of the body for medical purposes, although the persons charged with implementing these instructions (the executors) are not, at general law, bound

to follow them.20 Some testators use a will as a vehicle to explain the reasons underscoring their testamentary dispositions, and in particular why some persons who may otherwise expect a bounty have been omitted or otherwise receive less than they may have expected. The expression of reasons punctuated by logic and sense may speak to the testator’s mental capacity,21 whereas delusional expressions may be evidence to the contrary. A testamentary expression of reasons may also prove relevant to conceptions of the testator’s moral obligation in the context of family provision applications.22 On occasion testators utilise a will to record their thoughts and counsel for those who may (or may not) take under the will, although more commonly these are found in correspondence separate from the will. Whether or not located in a will, these expressions are not testamentary in nature, and have no legal impact or effect.23

Unitary in nature 1.6 A person may execute more than one testamentary instrument, in which case the aggregate or net result is what constitutes his or her will. As explained by the Privy Council:24 The law, on a man’s death, finds out what are the instruments which express his last will. If some extant writing be revoked, or is inconsistent with a later testamentary writing, it is discarded. But all that survive this scrutiny form part of the ultimate will or effective expression of his wishes about his estate. In this sense it is inaccurate to speak of a man leaving two wills; he does leave, and can leave, but one will.

This generally occurs when the testator disposes of separate items of property by separate wills or, more commonly, items of property held by the testator in different countries. The latter situation can raise issues as to revocation, especially with respect to the presence of a general revocation clause.25

Wills Distinguished from Other Transactions and Relationships 1.7

As a general principle, a document that meets the required formalities26

may constitute a will whether or not it is so described.27 Indeed, its author may even be unaware of performing a testamentary act. If there is proof, whether in the document itself or from clear extrinsic [page 17] evidence, that the author’s intention was thereby to convey the benefits that would have been conveyed had it been considered a will, and that death was the event that would trigger it, then whatever the document’s form, it may be admitted to probate as a will.28 Under this principle, for instance, subject to compliance with the relevant formalities, letters,29 orders on a savings bank,30 a cheque to take effect after death31 and a deed32 have each been upheld as a testamentary disposition. Conversely, if the document appears to be a will on its face, it still cannot be admitted to probate except upon sufficient proof that it was made with testamentary intent.33 1.8 Certain transactions, while appearing at first glance to be testamentary dispositions, are not.34 In these transactions, identified below, whilst the death of the person making the arrangement serves to distribute his or her property, the arrangement is not testamentary. Nor, as a result, does their subject matter form part of a deceased’s estate, and their legal effect is not premised upon securing a grant of probate.35

Trusts settled inter vivos 1.9 A trust established by a settlement that vests property in the trustee to be held for the benefit of the settlor for his or her life, and the remainder on trust to others, is not of a testamentary nature. Although the interest of those who take in remainder is premised upon the settlor dying, it vests when the trust is created, being at that time a present right to future possession. To this end, the High Court has observed that ‘[s]uccession post mortem is not the same as testamentary succession’, and that ‘what can be accomplished only by a will is the voluntary transmission on death of an interest which up to the moment of death belongs absolutely and indefeasibly to the deceased’.36 This principle

also applies if the settlor reserves a power to revoke the trust. Its exercise does not prevent the interest in remainder vesting immediately; the interest vests but can be divested if and only if that power is exercised during the settlor’s lifetime.37 Thus a settlement, whether or not revocable, creates an interest in property, but a will only confers an interest at death.

Nominations under life insurance policies 1.10 Where a person takes out a life insurance policy on his or her own life, and under the policy nominates one or more persons to receive its proceeds on his or her own death, that is not a testamentary act. There is no property the insured formerly held that is transferred on death, but merely a contractual arrangement between the insured and the insurer. The insured’s death simply makes the promise operative.38 But if there is no nomination, the proceeds of the policy are regarded as property of the deceased, and accordingly pass to his or her estate on death, either under the terms of the deceased’s will or the rules of intestacy. [page 18]

Superannuation nominations 1.11 That the governing rules of superannuation funds commonly provide for the payment of death benefits upon the death of a member does not make this a testamentary act. Death benefits often do not form part of the member’s estate, chiefly because the governing rules generally vest in the fund trustee a discretion as to persons to whom those benefits will be distributed (ordinarily persons dependent on the deceased at the date of his or her death). So merely because a testator, by his or her will, makes provision for the distribution of superannuation or death benefits neither makes those benefits part of the estate nor constrains the discretion vested in the fund trustee.39 But if the trustee pursuant to this discretion pays the benefits to the estate, they form part of the estate, and practically their distribution is governed by the will or intestacy rules.

Importantly, the discretion in question must yield to the terms of a valid binding death benefit nomination in favour of dependants or legal personal representatives, where this is envisaged by the governing rules of the fund,40 provided that it remains current41 and meets prescribed formality and notice requirements.42 Nothing in principle precludes a will, evincing an intention to distribute superannuation benefits, being treated as a binding death benefit nomination if it meets the relevant statutory requirements.43 1.12 A right of nomination is a contractual one belonging to the fund member, and so is not testamentary in nature. In Baird v Baird44 the Privy Council saw a nomination of this kind not as a disposition of property to take effect on death, but akin to a revocable power of appointment under an inter vivos settlement. Lord Oliver, who delivered the advice of the board, stated that the nominator ‘retains no proprietary interest in his contributions but receives instead such rights, including the right to appoint interests in the fund to take effect on the occurrence of specified contingencies, as the trusts of the fund confer upon him’.45 Australian support for this proposition exists in the following remarks of Holland J in McFadden v Public Trustee for Victoria:46 In my opinion, the fact that it was a term of the contract that the employee/contributor could nominate the beneficiary of the trust in a prescribed manner at any time up to the date of his death did not convert the transaction from a contract into a testamentary disposition. A nomination of the beneficiary to take under the trust is, in the present context … the exercise of a contractual right, not a testamentary power. Any dispositive effect that the nomination may have derives from the contract and the exercise of contractual rights inter vivos and not from the death of the contributor.

[page 19] Although Canadian case authority suggests that a nomination may be testamentary if the statutory scheme or governing rules of the superannuation fund permit the contributor to retain substantial control over the fund, including full disposition during his or her lifetime,47 the nature of superannuation regulation in Australia is inconsistent with such an outcome.

Joint tenancies

1.13 The creation of a joint tenancy is not testamentary in nature. If A and B purchase property as joint tenants, and A then dies, the inherent nature of a joint tenancy provides for a survivorship (jus accrescendi), so that B (as survivor) becomes solely entitled. Although B benefits by A’s death, the special nature of a joint tenancy — wherein each joint tenant has nothing separately and everything together with the other joint tenant48 — dictates that there has been no real succession to B of A’s interest. B acquired that interest on the purchase of the property, and it is simply enlarged by A’s death. Any will made by A otherwise benefiting the other joint tenant, or purporting to dispose of the property to a third party, is legally ineffective. There are occasions where joint tenants are presumed to hold the legal estate for themselves as tenants-in-common in equity,49 so that unless that presumption is rebutted (whether by evidence of actual intention to the contrary or the presumption of advancement), the survivor will hold the legal estate on a resulting trust.

Joint bank accounts 1.14 In a general sense, the opening of a joint bank account is not a testamentary act. If A opens a bank account and deposits funds therein on terms that either A or B may make withdrawals, and on the death of either A or B the survivor should be entitled to the proceeds, the amount standing in the account at death is not part of the deceased’s estate, but goes to the survivor.50 As the arrangement is non-testamentary, the survivor has immediate access to the balance of the account on the other joint account holder’s death. The bank need not await probate before safely paying the sum to the survivor. This is so even where only one of the persons contributed the money to the account, so long as it can be shown that the survivor was intended to take both legal and beneficial title on death. Ultimately, the question is one of intention. Russell v Scott51 illustrates the point. There an elderly spinster opened a joint bank account in the names of herself and her nephew, to which she contributed all the funds. Each signed withdrawal forms, which the nephew used to withdraw cash to meet the aunt’s liabilities. The aunt later died, leaving a will bequeathing her residuary estate to

the nephew and a third party (S) in equal shares. The issue was whether the account balance at the aunt’s death formed part of her residuary estate, so as to be shared by the nephew and S, or whether the nephew was solely entitled. The court favoured the latter [page 20] outcome, finding that the aunt intended the nephew to take the balance should he survive her. As explained by Dixon and Evatt JJ:52 The contract between the bank and the customers constituted them joint creditors. They had, or course, no right of property in any of the moneys deposited with the bank. The relation between the bank and its customers is that of debtor and creditor. The aunt and the nephew upon opening the joint account became jointly entitled at common law to a chose in action. The chose in action consisted in the contractual right against the bank, that is, in a debt, but a debt fluctuating in amount as moneys might be deposited and withdrawn. At common law this chose in action passed or accrued to the survivor.

That the nephew was not entitled to benefit from the account during the aunt’s lifetime did not preclude the court from finding that his interest therein was conferred when the account was opened. As a result, it could not be branded as testamentary in nature. Conversely, if the intention of the person who opens the joint account is not to benefit the survivor — say, where it is proved that he or she did so merely for personal convenience — a resulting trust arises, in which case the balance of the account, whilst held at law by the survivor, in equity is held on trust for the estate.53

Property passing under a donatio mortis causa General principles 1.15 A gift in contemplation of death — a donatio mortis causa (or simply donatio) — is a curious legal doctrine, described by an English judge as being of an ‘amphibious nature’, neither entirely inter vivos nor testamentary.54 The anomaly inherent in the doctrine is its enabling a donor to transfer property, with effect on his or her death, by inter vivos acts without complying with

formalities prescribed by either wills statutes or Statute of Frauds equivalents. This is because, whilst not complete until the donor’s death, a donatio need not be executed as a will. Its subject matter does not form part of the donor’s estate but passes to the donee by reason of the donor having parted with dominion thereof in contemplation of his or her impending death, and conditional on that death. Lord Cowper explained the justification for its recognition in the early 1700s as follows:55 [W]here a man lies in extremity, or being surprized with sickness, and not having an opportunity of making his will; but lest he should die before he could make it, he gives with his own hands his goods to his friends about him: this, if he dies, shall operate as a legacy; but if he recovers, then does the property thereof revert to him.

While the donatio doctrine may have origins in Roman law, the driver for its translation to English law was, it appears, as a response to the Statute of Frauds’ writing requirements for wills.56 It has been described as ‘a clear example of equity’s historic tendency to make concessions in respect of formality rules to the way people actually behave in relation to their property’.57 While the relative ease with which a person may make a will today, coupled with high levels [page 21] of literacy and curial powers to dispense with formalities, serve to bely the relevance of the doctrine in the twenty-first century — a point lost on neither commentators58 nor judges59 — it remains as part of English and Australian law to this day. The core elements of a valid donatio — the parting with dominion over the subject matter of a gift made in contemplation of death, that is conditional on death eventuating — therefore deserve elaboration, which appears below.

Contemplation of death 1.16 More than a mere recognition of inevitability of death is required for this purpose.60 The donor must instead contemplate an imminent (though not necessarily immediate) death. While this is most commonly a consequence of a terminal illness, the cases suggest that, if the evidence supports it, there may be

sufficient contemplation of death where a donor is to embark on a dangerous mission or journey,61 is about to undergo a dangerous surgical operation62 and, now that attempting suicide is not a crime, is contemplating death by suicide.63 While the immediacy of death may not be essential to its contemplation, the anomalous nature of the donatio doctrine, in circumventing statutory formality requirements, dictates a need to keep scope for its application in check. It may be queried why the doctrine should validate gifts in instances where death, though it may be foreseeable, is not within close temporal contemplation. To give the donatio doctrine flight in such cases is not only to undermine the rationale for longstanding formalities; it raises questions surrounding why a donor has not formalised the gifting process, whether inter vivos or testamentarily. The latter dovetails into matters going to proof in alleged donatio cases, discussed later.64 1.17 Informed by these considerations, when speaking of contemplation of death, the law adopts what can be described as an objective perspective. That the donor was contemplating death when making the gift does not by itself dictate that death has the requisite imminence, at least absent compelling evidence of some illness or other event that should cause death imminently. In King v Dubrey,65 for example, an owner of land, whose valid will left her estate to charities, when frail but reasonably healthy delivered the title deeds to her nephew,66 orally indicating that the land would be his when she died. She died 6 months later, and an issue was whether this gift was truly made in contemplation of death. While not confining the donatio doctrine to a deathbed scenario — ‘even though that is the situation in which the doctrine might be said to serve a useful social purpose’67 — the court emphasised that a donor must have ‘good reason to anticipate death in the near future from an identified cause’;68 hence, contemplation of death refers to ‘impending death within the near future’, not ‘the mere possibility that it may occur at some future date weeks or even months away’.69 [page 22]

The facts in King revealed no evidence that the donor was then suffering any specific or fatal illness, or was to undergo a dangerous operation. While perhaps conscious of her generally failing health and expressing a wish to arrange her affairs, the evidence did not accordingly demonstrate that the donor believed her death to be impending, let alone imminent.70 Had the donor been dissatisfied with her existing will, the court reasoned, she could have instructed her solicitors to make a new will, and indeed the evidence showed that she had attempted to make new wills that failed for want of attestation. Hence, the alleged donatio was not effective, because it was not effected in contemplation of death. 1.18 In so ruling, the English Court of Appeal was no doubt seeking to confine the scope for applying the donatio doctrine. It disapproved the decision of Jonathan Gaunt QC, sitting as a deputy High Court judge, 2 years or so earlier in Vallee v Birchwood,71 who found a valid donatio absent evidence that the donor, in delivering to his daughter the title deeds and a key to his home, was suffering from a terminal illness. ‘The question is not whether the donor had good grounds to anticipate his imminent demise or whether his demise proved to be as speedy as he may have feared but whether the motive for the gift was that he subjectively contemplated the possibility of death in the near future’, his Lordship remarked, before adding that the law ‘requires only that the gift be made in the contemplation and not necessarily the expectation of death’.72 1.19 While the term ‘contemplation’ may invite questions of degree as to motive and time, the approach espoused by Jonathan Gaunt QC is too welcoming to the donatio doctrine being utilised as an alternative to ordinary will-making. Diagnosis with a terminal illness, after all, no doubt brings with it a contemplation of death, even though this may not occur until years later. Those contemplating death, including subjectively in the absence of diagnosed terminal illness, should be expected, as a matter of legal policy, to formalise their testamentary intentions rather than encouraged to rely upon an anomalous doctrine that ‘paves the way for all of the abuses which [formality] statutes are intended to prevent’.73 Too willing an application of the donatio doctrine could function not only to foster evidential disputes, but may unduly constrain (putative) donors to extra-testamentary utterances and acts.74

Although the English Court of Appeal in King set no fixed temporal parameters, the concept of ‘near future’, it has been said, ‘should be measured in days rather than weeks’.75 In Vallee the actual interval between the purported gift and the donor’s death was some 4 months, leading Jackson LJ in King to remark that if the donor wished to leave his house to his daughter, ‘he had ample opportunity to take advice and make a will’.76 Given the policy issues at stake, it is hard to see Australian courts diverging too much from this approach.77 1.20 If the gift is truly made in contemplation of death, the donatio remains effective even if the donor dies from a different cause than that contemplated. A donor may, for instance, [page 23] contemplate death from cancer but then die from pneumonia.78 Obviating a need to inquire into the donor’s foresight and understanding as to the medical cause(s) of his or her death both feeds into the objective nature of the relevant inquiry as well as acknowledges that illness (and death) may be the product of multiple diagnostic causes.

Conditional on death 1.21 A valid donatio remains inchoate until the donor’s death and is conditional upon that death.79 There must, it is said, be ‘a clear intention to give but only if the donor dies, whereas if the donor does not die then the gift is not to take effect and the donor is to have back the subject matter of the gift’.80 While that intention can be express, it is more commonly inferred from the surrounding circumstances. Importantly, if the donor ‘fails to succumb to the death which was anticipated when he made the [donatio]’,81 the gift lapses. Were a gift to continue to run simply because the donor dies at some stage in the future, it would undermine the strictures inherent in the requirement that the gift be made in contemplation of imminent death. The conditional nature of the transaction dictates that the donor may revoke the gift before his or her death, say, by resuming dominion over its

subject matter if that reveals an intention to revoke. However, it may not always do so. In Harneiss v Public Trustee,82 for example, the donee of a passbook savings account voluntarily returned the passbook to the donor to check the state of the account. The passbook remained with the donor until his death, but the donation was upheld as there was no intention to revoke. 1.22 If the gift is not conditional on the donor’s death, it can only take effect as a gift inter vivos if it is completely constituted by the donor83 and complies with any applicable formalities for such gifts. Otherwise it will fail altogether.

Parting with dominion 1.23 Parting with dominion centres on two elements. The first is proof that the delivery was made with the intention of parting with dominion in the property the subject matter of the gift. The concept of ‘dominion’ is a ‘slippery’ one,84 but broadly speaking means physical possession of ‘the subject matter’, ‘some means of accessing the subject matter (such as the key to a box)’ or ‘documents evidencing entitlement to possession of the subject matter’.85 Physical possession by itself is insufficient, however; the item(s) in issue may have been delivered merely under the cover of bailment, for safekeeping or some other limited purpose that is not consistent with an intention to confer what is essentially conditional ownership.86 [page 24] That the ownership interest being other than inchoate rests on the event of death raises issues as to the extent to which the donor can retain control over the subject matter of the gift pending death. There is some apparent tension between the notion of parting with dominion but at the same time making the question of ownership conditional on a later event. Dicta in English case law suggest that if, say, the gift relates to land (being effected by the delivery of title deeds to the intended done), the donor may nonetheless retain possession and enjoyment of the land (and even grant a tenancy to a third party) pending death.87 It is more difficult to conceive of coexistence between parting with

dominion but retaining control over a chattel. The need for contemplated death to be imminent may in any event render the point largely moot. 1.24 The second element requires proof of sufficient delivery in the donor’s lifetime;88 a putative delivery to take place only upon or after the donor’s death is not a valid donatio.89 When inquiring into the sufficiency of the act of delivery,90 separate principles apply vis-à-vis chattels and choses in action, as discussed below. For chattels there must be actual delivery to the donee or someone acting on his or her behalf.91 The delivery must be made by the donor, or by the donee obtaining possession by acting under the donor’s instructions. In Woodard v Woodard,92 for example, the defendant’s father was admitted to hospital suffering from leukaemia and died 4 days later. While the father was in hospital the defendant was in possession of the father’s car and a set of keys. Three days before he died the father told the defendant that he could keep the keys as he, that is, the father, would not be driving the car anymore. The English Court of Appeal upheld this as a sufficient delivery despite the fact that the defendant was already in possession of the car. The case highlights, as do others,93 that an effective delivery can be made before the expression of intention to make the gift, and a valid donatio can ensue assuming the remaining elements are satisfied. Delivery of chattels cannot, however, be merely symbolic.94 But symbolic delivery is distinguishable from where the chattel is incapable of physical delivery, say, because it is bulky. In this event, the handing to the donee of the key to the box or place where the chattel is kept, or some other indicia of ownership of or access to the chattel, is sufficient and not regarded as merely symbolic.95 1.25 Choses in action are inherently incapable of physical delivery. Instead what is required is delivery of the document that the donor must produce in evidence in court, as indicia of title to the chose, were he or she suing upon it. The relevant test has been described in terms of whether the delivery is of ‘the essential indicia or evidence of title, possession or production of which entitles the possessor to the money or property purported to be given’.96

[page 25] In several cases a savings bank passbook has been held to satisfy this test.97 The modern shift to cards subject to identification requirements (usually numbers) in place of passbooks suggests that the delivery of this form of card coupled with identification requirements may do likewise.98 The mere delivery of bank statements in respect of an account operated by the (alleged) donor is ineffective as a donatio,99 however, as while these may be evidence of title, this is not the same as indicium of title. 1.26 There is Australian authority, contrary to several English decisions,100 to the effect that a delivery of share certificates may amount to a valid donatio, proceeding on the assumption that the certificates are not merely evidence of a shareholding but the actual indicium of title.101 By analogy with bank passbooks (and bank cards), where it is unnecessary to produce a signed withdrawal slip, for shares it now appears likewise unnecessary to produce a signed share transfer. Thus modern business practices and technology, in particular relating to banking and other commercial transactions, cannot but impact on the delivery requirement.

Property the subject of a valid donatio mortis causa 1.27 It has long been assumed that the donatio doctrine applies only to personalty, a proposition confirmed by strong Australian authority.102 Longstanding formality requirements to transfer title to land, inter alia, inclined the courts against extending the doctrine to real property. Yet in Sen v Headley103 the English Court of Appeal held that a donatio of unregistered land by delivery of title deeds was possible. It reasoned that, as formality requirements do not preclude interests in land arising under a constructive trust, if the delivery of title deeds could be construed as justifying the imposition of such a trust, a donatio could not as a matter of principle be denied effect if its remaining elements were met. The issue has been addressed in Australia only by obiter comment that the Australian position may need to be reassessed.104 Perhaps there is no reason in principle why delivery of transfer documents cannot constitute a valid donatio

of Torrens system land, as those documents enable the donee to become the registered title holder.105 And the attitude of Australian courts to constructive trusts is more welcoming than that of their English counterparts. Even so, it remains debatable whether the mere delivery of a certificate of title would suffice.106 In any case, the advent of computerised (and thus paperless) land titles dictates that the problem is unlikely to arise,107 at least as to Torrens system land, which now comprises the bulk of all land title in Australia. [page 26]

Aspects of proof 1.28 The burden of proof on each requirement for a valid donatio lies on the donee. While the standard, as in all probate matters, is the civil balance of probabilities, it should not be assumed that discharging this onus is easy. Because the donatio doctrine operates outside formality requirements for testamentary (and also inter vivos) gifts, ‘considerable caution’ is required in assessing evidence in this context, and ‘strict proof’ of compliance with its requirements is necessary.108 As was recently explained by an English judge:109 What [a donor] says to those who are ministering to him in the last hours of his/her life may be a less reliable expression of his/her wishes than a carefully drawn will. The will may have been prepared with the assistance of a solicitor and in the absence of the beneficiaries. There are no such safeguards during a deathbed conversation. The words contained in a will are there for all to see. There may be much scope for disagreement about what [the donor] said to those visiting or caring for him in the last hours of his life.

This has long been acknowledged. In the mid-1800s Lord Chelmsford explained that alleged donatio cases ‘demand the strictest scrutiny’.110 His Lordship’s concern was that ‘[s]o many opportunities, and such strong temptations, present themselves to unscrupulous persons to pretend these deathbed donations, that there is always a danger of having an entirely fabricated case set up’. So while a donatio can be established solely on evidence from the donee, its trustworthiness requires careful scrutiny given the donee’s self-interest.111 And in circumstances where significant aspects of the donee’s evidence were capable of corroboration, but are not so corroborated, it is unlikely that the requisite standard of proof will be met.112

Contracts Relating to Wills 1.29 Below are explained the legal consequences of a contract between a testator and a third party to benefit the latter by will. The topic of mutual wills is addressed separately,113 because there the persons who benefit from the relevant agreement are not parties to it, and so cannot, by reason of the doctrine of privity, rely on contract to support their claim. 1.30 Contracts relating to wills take one of two main types: a contract to make a will (or particular provisions in a will); and a contract not to revoke a will once made. These are elaborated in turn below. Each is recognised as valid and enforceable, assuming the elements of a contract at law are met114 (including formalities where necessary),115 despite a will being inherently revocable.116 That probate of a testator’s last will is granted irrespective of contractual promises (and, lacking a will, the deceased’s property is distributed in accordance with the rules of intestacy) does not nullify the effect of any such contract, which may be enforceable against either the testator or his or her estate. Contracts of this kind often, but not invariably, arise in the context of close personal or family relationships, involving care and services to the testator, the consideration for which is a promise by the testator to leave the carer property or not to alter the will in favour of [page 27] the carer. This explains why the factual circumstances may alternatively give rise to a claim of proprietary estoppel117 or for an equitable property interest under a remedial constructive trust,118 neither of which is developed in this work.119

Contract to make wills 1.31 A contract to make a will, or a particular provision therein, is discharged by performance when the will is made.120 If not, the remedy is in

damages or, in applicable cases, specific performance. Yet even if the contract is performed, the promise remains postponed to the liabilities of the estate or to a possible family provision claim.121

Contract to leave a legacy 1.32 If the benefit contracted for is a legacy — say, the testator promises to leave an amount of money to the promisee — the testator is at liberty to dispose of any property during his or her lifetime. On the testator’s death, however, the contract creates a debt against the estate. If the will does not provide for the promised amount, or the testator otherwise dies insolvent, the promisee can accordingly demand the payment from the estate as an unsecured creditor thereto.122

Contract to leave specific property 1.33 The promisee stands in a stronger position where the testator fails to abide by a contract to leave specific property, such as a house, for three reasons.123 First, if the testator sells the property during his or her lifetime, the promisee may treat this as a repudiation of the contract, and sue for damages under the doctrine of repudiatory breach.124 Second, the promisee may obtain an injunction against the sale and/or a decree of specific performance.125 Third, should the testator die insolvent, the property the subject of the promise forms part of the general estate available for the payment of debts, but the promisee may rank as a (secured) creditor in competition with other creditors of the same degree.126

Contract to leave ‘all property’ or residue 1.34 Unlike a contract for specific property, a contract to leave the promisee all the testator’s property, or a share thereof, does not create a debt against the estate. The promisee is entitled only to such of the estate as constitutes residue upon the completion of administration. As the promise is postponed to the general creditors,127 if the testator proves insolvent, the promisee will have no claim on the estate.

[page 28] 1.35 The legal position with respect to depletion of the estate by the promisor prior to death is as follows.128 First, if the contract itself contains a specific term that restricts the testator’s right to deplete the estate, clearly the contract is breached. Second, absent such a term, the testator is free to make any inter vivos dispositions he or she wishes. But in this latter instance, there may still be a breach if the so-called inter vivos transaction is substantially testamentary in character (though technically inter vivos). In the leading case, Palmer v Bank of New South Wales,129 the testator promised that he would not alter or revoke his will, which left his entire estate to the plaintiffs, in return for a promise by the plaintiffs that they would look after him for the rest of his life. The plaintiffs fulfilled this obligation and the testator did not alter or revoke the will. The testator did, however, open a joint bank account with a third party (B), into which he paid a substantial sum of money on the understanding that the survivor of the joint account holders would be entitled to its balance. After the testator’s death, the plaintiffs argued that the testator had breached an implied term in the contract not to deplete the estate. Accordingly, the argument ran, B should hold the money the testator deposited into the account on trust for the estate. The High Court rejected these arguments. It found no breach of contract, ruling that the testator’s promise not to revoke or alter the will did not curtail his freedom to make inter vivos dispositions as he pleased.130 That freedom could only be curtailed by an express contract that the testator would not deplete the estate, which was absent. The court also rejected the argument that the transaction (that is, the opening of the joint bank account) was in substance testamentary in nature. The transaction was, after all, not one under which the testator reserved the money contributed exclusively for himself for his life. Both the testator and B contributed to, and were entitled to withdraw from, the account, with the survivor then to have absolute title to the account. Barwick CJ explained the dividing line between in substance testamentary and inter vivos gifts here as follows:131

But such a promise to leave by will does mean that no property will be disposed of in lifetime by a transaction which, in substance, if not in form, is testamentary: that is to say, such a promise means that the only testamentary disposition of the property of the promisor shall be by will. A transaction by which the promisor has placed his property in the name of another and for the benefit of that other on his death, whilst really retaining it for himself in his lifetime, is, for the purpose in hand, a testamentary transaction which would be in breach of a promise to leave by will … [W]hilst the promisor is free to divest himself of the property by a transaction inter vivos, he may not either enter into an illusory transaction whereby he appears, contrary to the reality, to have parted with his property, or into a transaction whereby he keeps an interest in the property during his lifetime, so arranging the transaction that the property passes on his death to the person into whose name he has transferred it. So to do is to deal with the property in a testamentary fashion in breach of the promise.

Contracts not to revoke or alter wills 1.36 A contract by which a testator agrees not to revoke or alter an existing will, or a particular gift within it, is valid.132 Again, though, if revocation or alteration does take place, any substituted will is admitted to probate; remedies lie against the estate or others. Consequently, while a court cannot restrain the revocation of the will itself, it can restrain the disposal of any [page 29] property in breach of the contract and award damages for a breach.133 Whether the concept of revocation within a contract not to revoke extends revocation occurring by operation of law (such as upon the testator’s (re)marriage)134 rests on the wording of the contract itself; in the leading English case the court construed the contract in question as confined to voluntary revocation but provided little in the way of compelling reasoning as to why this should be so.135 It seems odd that the claim of a beneficiary of a contractual promise not to revoke a will should be frustrated by the promisor performing an act (marriage) that in law effects a revocation. A will is (partially) revoked by operation of law by divorce of the testator.136 However, in this event (except in Western Australia) the entire will is not revoked, but only those provisions that benefit the former spouse.

Formalities and enforceability of testamentary contracts 1.37 Contracts for the disposition of land must conform to statutory formality requirements,137 chiefly a note or memorandum in writing, signed by the party to be charged or by another person authorised by him or her. So if a testamentary contract relates to land, its enforceability rests on a note or memorandum in writing.138 A contract to make a will that does not concern specific property, but relates to whatever assets the deceased has at death, is not, however, treated as a contract of the sale of land for this purpose, even though the assets may include land.139 It seems that a contract not to revoke an existing testamentary provision likewise falls outside the formality requirements, even if it relates to land. In any event, the law recognises vehicles whereby testamentary promises that do not meet the formalities may be enforced, including the law of constructive trusts,140 proprietary estoppel141 and part performance,142 whether via personal or proprietary relief.143

Counterpoint — statutory regulation of testamentary promises in New Zealand 1.38 An interesting counterpoint is supplied by a unique statutory initiative in New Zealand, the Law Reform (Testamentary Promises) Act 1949.144 It states that an ‘express or implied promise’ by the deceased to reward a claimant, via testamentary provision, for ‘rendering of [page 30] services to or the performance of work for the deceased in his lifetime’ is, to the extent that the deceased failed to make that provision or otherwise remunerate the claimant, enforceable against the estate ‘in the same manner and to the same extent as if the promise of the deceased were a promise for payment by the deceased in his lifetime of such amount as may be reasonable’.145 The legislation lists factors that a court must consider in

making this assessment.146 For this purpose, ‘promise’ is defined to include any statement or representation of fact or intention,147 made either before, during or after the services or work occur.148 It may cover declarations that might fall outside a dictionary definition of that word, and extend beyond any contractual context.149 The concepts of ‘work’ and ‘services’ have likewise received a liberal interpretation. For instance, ‘services’ embraces ‘not only things done for the deceased but also companionship, affection and emotional support exceeding what is normally to be expected of a relative, a member of the same household, a neighbour or a friend’.150 The case law reveals that the value of the services supplied is commonly in issue,151 bearing in mind the core criterion is reasonableness.152 The courts have, to this end, highlighted that the subject matter of the promise in question, though clearly relevant in assessing what is reasonable, is not determinative.153 They have also disclaimed absolute precision in making an award, one judge noting that ‘it will often be impossible or inappropriate to weigh in any nice scales services or work on the one hand and testamentary reward on the other’.154

Contracts and family provision claims 1.39 As the law recognises the validity of contracts to testamentarily dispose part or all of an estate, while at the same time the court is statutorily empowered to alter testamentary provision where the deceased has left an eligible person without adequate provision for his or her maintenance, advancement or support, there is scope for conflict between contract and [page 31] the court’s power. As a matter of general principle, the latter takes priority, albeit without disregarding the contractual commitments given.155

Mutual Wills Nature and role of mutual wills 1.40 Mutual wills ordinarily arise where two persons, often (but not invariably)156 husband and wife, agree to execute wills157 in substantially the same terms and not revoke them without the other’s consent. Mutual wills have traditionally taken one of two forms. The first is where both testators leave a life interest to each other with remainder over to agreed beneficiaries.158 The second occurs where the testators leave their estates absolutely to each other on the understanding that, on the death of the survivor, the property the subject of the agreement will pass to agreed beneficiaries.159 Mutual wills between husband and wife, particularly in second (or later) marriages, often represent an attempt to provide for the children of former relationships, at the same time affording the survivor enjoyment of stipulated matrimonial property.160 Not unlike the law governing contracts relating to wills,161 the mutual wills doctrine must address the tension between the fundamental revocability of wills and attempts to bind will-makers’ options. But in the mutual wills context, the person(s) who are ultimately to benefit are not parties to the relevant agreement; without privity they lack standing to enforce it in contract.162 Nor can contract itself prevent a grant of probate of a later will executed in breach of the agreement.163 The foregoing explains the resort to equity, and the law of trusts in particular, as a vehicle to enforce the relevant obligation. The survivor, it is reasoned, holds the property the subject matter of the mutual wills agreement on trust for the ultimate beneficiaries. As the trust is arguably imposed as a means of preventing the survivor from acting ‘fraudulently’ — by acting inconsistently with the agreement — it is unsurprising that judges often speak in terms of a constructive trust in this context. Whether the trust could instead be viewed as an express trust — after all, the agreement to which it gives effect necessarily reflects the parties’ actual intentions164 — or may otherwise be explained via restitutionary theory165 has

[page 32] received little judicial traction to date.166 That the remedy is couched in the language of trust does not compel proprietary relief in each instance; the court may, within its remedial arsenal, grant monetary relief (equitable compensation) in its place where this adequately fulfils the relevant promise(s).167 1.41 The leading Australian case is Birmingham v Renfrew.168 There a husband and wife orally agreed that the wife would leave her property by will to her husband, and that the husband would make a will leaving his property to the wife or, if she predeceased him, to four of her relatives. They executed wills to this effect, which they agreed not to revoke. The wife thereafter received a substantial bequest under her uncle’s will. Upon her death, the husband made another will benefiting his own relatives, which was admitted to probate. The High Court found that husband and wife had entered into a binding agreement, which bound each not to revoke their will without the other’s knowledge, and certainly not after the other’s death. This agreement, the court ruled, gave rise to a constructive trust, enforceable by the wife’s relatives against the executors of the husband’s will. As beneficiaries of that trust, the relatives could call in the trust property to vest beneficially in them. As explained by Dixon J:169 It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked, so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document, and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is … that the survivor becomes a constructive trustee, and the terms of the trust are those of the will which he undertook would be his last will.

Establishing the agreement 1.42 The primary requirement for mutual wills is an enforceable agreement not only to make the wills in question but also not to revoke them once made. That two persons make wills in identical or near identical terms (what can be

termed ‘reciprocal wills’) is not enough;170 there is no presumption that ‘a present plan will be immutable in future’.171 This aligns with the ‘inherent improbability’ of a testator being prepared to forego the prospect of altering his or her will in the future, whatever the change of circumstances.172 What is essential is an agreement not to revoke the will without the other’s knowledge.173 Husbands and wives, after all, often [page 33] make reciprocal wills, but do not thereby intend to bind themselves not to revoke them.174 It is therefore ‘typically a difficult hurdle to overcome’.175 Whether relating to reciprocity in this context, or as to non-revocability, courts have generally required that the agreement exhibit basic contractual elements.176 Beyond notions of consensus and consideration, a court must be convinced that the parties intended to create a legally binding obligation. It follows, as explained by an Australian judge, that ‘the mere expectation or mutual desire as to the intended ultimate beneficiaries is not sufficient to give rise to an enforceable obligation, even if one party intended the arrangement to be legally binding’.177 It is the presence of a contractual-type agreement that justifies the law resorting to equity to enforce the obligation(s) undertaken. 1.43 Proof of an agreement not to revoke reciprocal wills is governed by the civil standard of balance of probabilities. Judicial remarks suggesting that the burden is a heavy one — for instance, that the agreement can be established only by ‘clear and satisfactory evidence’, and the corresponding ‘great need for caution in accepting proofs advanced in support of an agreement affecting and possibly defeating testamentary dispositions of valuable property’178 — are not to be construed as ousting the civil standard.179 Evidence of the agreement not to revoke may usefully be located in recitals to the will,180 and judges have made adverse comments concerning a failure to so recite in cases where mutual wills are alleged.181 In the absence of such recitals, the court may draw inferences from all the surrounding circumstances, including the history, factual matrix and implications from the terms of the agreement.182 Extrinsic evidence — in the form of alleged oral statements as to

[page 34] what was being effected and why — is clearly a relevant factor.183 That an alleged agreement relating to land does not meet the Statute of Frauds formality requirements does not preclude its enforceability in equity if the plaintiff can substantiate that the Statute is being set up as a cloak for fraud.184 On other occasions, there may be direct evidence of a contract. One of the parties may have taken the trouble to have the contract acknowledged by the other in the presence of members of the family,185 or it may have been proved by the lawyer who drafted the wills186 or by evidence from the survivor.187 Nowell v Palmer188 illustrates the admissibility of oral evidence. There, B and M had lived together for 20 years. They agreed to make mutual wills wherein they left each other their entire estate, and agreed that the survivor would leave his or her estate to the plaintiff, B’s daughter. Wills were executed in a form consistent with this agreement in 1983, but the solicitor-custodian of these wills ‘disappeared’. In 1986 another solicitor drafted a will for each and these were signed, on separate occasions, by the testators. That solicitor was not told that the wills were to be mutual wills. B died in 1986. M thereafter revoked his 1986 will, executing a new will in which he left his entire estate to the defendant. The trial judge found upon the evidence that M and B had made a legally binding contract to make and not to revoke mutual wills.189 Part of that evidence consisted of various statements M made to others to the effect that there was a contract between him and B to leave mutual wills. The judge admitted this evidence as an exception to the hearsay rule under the principle that an admission by an owner of property that he or she is not entitled to a particular right or interest in that property is evidence binding upon a person who succeeds to the interest of that predecessor in title.190 The Court of Appeal upheld this finding, rejecting the argument that at the time the relevant statements were made there was no property to the title to which an admission could be made.191 It also held that the statements were admissible in evidence under another exception to the hearsay rule, namely a statement made by a deceased person against his or her own interest. It follows that, generally speaking, very little restriction exists on evidence

that may be taken into account in establishing the agreement not to revoke, and each case will depend heavily on the matrix of circumstances surrounding the making of the wills. Simultaneous signings of the will have sometimes proved a factor to be taken into account, particularly where the testators have requested the ultimate beneficiary to read them. But the execution of the wills pursuant [page 35] to the agreement in the ultimate beneficiary’s presence coupled with its communication to that beneficiary better ensures the agreement’s fulfilment.192 1.44 Nevertheless, there have been many inconsistent decisions. In Re Cleaver (deceased) ,193 for example, the wills were held to be mutually binding on a purely oral agreement notwithstanding that the solicitor who drafted them was unaware of any enforceable agreement. The evidence did, though, establish an agreement to execute mutual wills, accompanied by an intention to create legal relations in that both husband and wife dealt with their affairs on a basis more commercial than normally the case between married couples.194 Yet the evidence not to revoke has been branded as ‘skimpy indeed’,195 and in fact Nourse J did not distinguish the agreement to make the wills from any agreement not to revoke them. The decision in Cleaver may usefully be compared with that in Re Goodchild (deceased) ,196 where the said distinction was expressly made, Carnwath J remarking that ‘there must be established evidence of a specific agreement outside the wills, not just some loose understanding or sense of moral obligation’. Despite the fact that the wills of husband and wife in that case were in identical form, leaving their son the ultimate beneficiary, and despite a considerable body of evidence from family, employees and friends to the effect that the parents had told them that the son was the only heir and they had made combined wills to benefit him, his Lordship, in a finding affirmed on appeal,197 preferred the evidence of the family solicitor to the effect that he had not drafted a mutual will. Carnwath J characterised Cleaver as ‘an extreme

example of the circumstances in which an agreement may be found on the basis of oral evidence’, and of limited precedent value.198 The foregoing highlights the value of evidence offered by the drafting solicitor, being ordinarily a person independent of the claim, as well as the utility of recitals (or equivalents) in the body of the relevant instrument to clarify the parties’ intentions.

Timing of (trust) interest under mutual wills 1.45 The (constructive) trust does not arise immediately from the making of mutual wills. There is, at that time, no need for it, because any issues are addressed directly under the contract between the parties. Courts speak of a ‘floating’ obligation or trust over the property the subject of the contract that becomes irrevocable upon the death of the first to die before ‘crystallising’ upon that property upon the survivor’s death.199 Before death of the first to die, the agreement is only contractual, and so may be revoked by mutual agreement.200 In the event of unilateral breach by one party, the other is entitled to treat himself or herself as discharged from the agreement. 1.46 If the other party receives notice of the breach, it cannot give rise to an action for damages, as he or she can mitigate any loss by altering his or her will on the basis of the breach. In Stone v Hoskins201 Sir Gorell Barnes P envisaged the same outcome where notice of the breach comes to the survivor after the death of the first to die. His Lordship reasoned that, as the husband could as a result of the wife’s breach now freely alter his will, he was in the circumstances not prejudiced by the wife’s revocation.202 [page 36] The position is likely to be otherwise, though, where prejudice can be shown. In Bigg v Queensland Trustees Ltd203 the facts were similar to those in Stone v Hoskins, with the additional and ultimately important factor that the husband made, and continued to make, investments in his wife’s name in the mistaken belief that the mutual will stood. Becoming aware, on the wife’s

death, that she had revoked the mutual will, the husband successfully claimed a declaration that the wife’s executor held her estate on trust for him. While it could be said that the wife behaved inequitably (in equity parlance, unconscionably) by breaching the mutual wills agreement without notifying her husband, equity does not ordinarily alter property interests unless necessary to rectify detriment that the common law cannot compensate. This explains why McPherson J ultimately decided in the husband’s favour via estoppel, given that the husband, by persisting in making the investments in his wife’s name, had acted to his detriment on the assumption that the mutual will stood.204 It also stands to reason that the Stone v Hoskins principle cannot operate where the survivor is otherwise not capable of electing to revoke his or her will. So in Low v Perpetual Trustees WA Ltd,205 where the surviving wife of a mutual wills agreement suffered from dementia, she was incapable of executing a new will. The Western Australian Supreme Court held that, in this circumstance, as notice of the husband’s revocation to the survivor could not be acted upon, the husband’s estate was held on trust for the wife under the terms of the original mutual wills agreement.206

Doctrine applicable even though no benefit to survivor 1.47 Where mutual wills leave reciprocal life estates with gifts over, or absolute gifts with alternative provisions in the event of one testator predeceasing the other, the survivor clearly takes a benefit. Yet the doctrine can apply when the survivor does not benefit, as appears from Re Dale (deceased).207 There husband and wife executed identical wills in 1988, each leaving their estate to their son and daughter in equal shares. The husband died 2 months later without having revoked his will, leaving a net estate of £18,500. In 1990 the wife made a fresh will leaving her daughter only £300 and her son the remainder. The son argued that, for the mutual wills doctrine to apply, it was necessary for the surviving testator to have obtained a financial benefit under the mutual will, which on the facts the wife had not. Hence, the argument ran, although the wills were in identical form, the wife was free to distribute her estate as she wished. Morritt J rejected this argument. As the mutual wills doctrine is (partly) grounded in avoiding fraud — which is said to justify the

imposition of constructive trusteeship — his Lordship could see no substantive difference between the fraud involved in this context as compared to the usual mutual wills scenario. In remarks that have been approved by an Australian appellate court,208 Morritt J explained the point as follows:209 I am unable to see why it should be any the less a fraud on the first testator if the agreement was that each testator should leave his or her property to particular beneficiaries, for example their children, rather than to each other. It should be assumed that they had good reason for doing so and in any event that is what the parties bargained for. In each case there is the binding contract. In each case it has been performed by the first testator on the faith of the promise of the second testator and in each case the second testator would have deceived the first testator to the detriment of the first testator if he, the second testator, were permitted to go back on his [page 37] agreement. I see no reason why the doctrine should be confined to cases where the second testator benefits when the aim of the principle is to prevent the first testator from being defrauded.

The nature of the fraud lies not so much in taking the benefit of the other testator, although that will amount to fraud, but in deceiving the first testator in allowing him or her to die having carried out his or her part of the bargain.

Scope of the obligation on survivor of mutual wills agreement 1.48 The scope of the obligation upon the survivor under a mutual wills agreement depends on the terms of the agreement itself.210 Unless those terms provide otherwise, however, the obligation ordinarily covers not only the property derived by the survivor from the will of the first party to die, but also that survivor’s own property. If the survivor’s estate is swelled by after-acquired property, that will also become subject to the trust obligation.211 1.49 The more challenging issue concerns the extent of the survivor’s power of disposition during his or her own lifetime. Again, first resort must be paid to the actual terms of the agreement. Subject to those terms, the purpose of a mutual wills agreement is often to enable the survivor to deal as absolute owner of the property passing under the deceased’s will. In such a case, it is said, ‘the object is to put the survivor in a position to enjoy for his own benefit

the full ownership so that, for instance, he may convert it and expend the proceeds if he chooses’, provided that ‘when he dies he is to bequeath what is left in the manner agreed upon’.212 There is clearly tension here, between the survivor’s ostensible freedom to deal with the property in question and the (trust) restriction as to its testamentary disposition. As the very object of mutual wills is as a form of ‘dead-hand’ control,213 an entirely unlimited power of disposition in the survivor would defeat that object.214 Moreover, the notion of trusteeship that lies at the core of the law’s enforcement of mutual wills sits poorly with complete freedom to deal with property subject to the relevant agreement. This contextualises judicial remarks referring to equity ‘attaching to the assets a constructive trust which allow[s] the survivor to enjoy the property subject to a fiduciary duty which … crystallise[s] on his death and disable[s] him only from voluntary dispositions inter vivos [that are] calculated to defeat the intention of the compact’.215 This squarely raises the question as to the types of inter vivos dispositions that would be calculated to defeat the intention underscoring the mutual wills agreement. Clearly, much will rest on the nature of the promises made under the agreement. Where the survivor makes an inter vivos gift of property specifically identified as being subject to the trust obligation, this is generally a breach.216 More generally, informed by the notion that mutual wills are directed [page 38] at preventing fraud, the relevant principle may be phrased in terms of the survivor not being permitted to act fraudulently ‘in the sense used in equity, to render his or her promise nugatory by making substantial gifts during his or her lifetime’.217

Impact of remarriage 1.50

That a will is revoked by a subsequent marriage218 dictates that, upon

the remarriage of the survivor of a mutual wills agreement, his or her will is revoked. Vaisey J explained how this affects the mutual wills in Re Green (deceased).219 There the survivor remarried and made a new will in favour of his second wife. His Lordship accepted that the mutual will was revoked by marriage, but held that the trust that the mutual wills created survived, reasoning that ‘the first will must take effect, not as a will, but as evidence of a trust which is plainly to be discerned in the two wills’.220 That trust had arisen on the death of the first wife. This outcome was confirmed, albeit in obiter, as the law by Carnwath J in Re Goodchild (deceased).221 Although the point awaits definitive Australian authority, the Re Green approach is compelling. In principle, once the trust arises, attaching as it does upon the death of the first testator,222 the reason for the revocation — whether it was intentional or by operation of law — should make little difference. Yet it remains a nice question as to how far the interests of a present spouse should be submerged to that of a former. Mutual wills can involve total extinguishment. This does not sit well with the implicit assumption underscoring the law’s insistence on automatic revocation of wills on (re)marriage: that (re)marriage imposes new and fundamental responsibilities on a person that are likely to make inappropriate the provision contained in an earlier will.

Drafting and dangers in use of mutual wills 1.51 Whilst the drivers for mutual wills are understandable, any benefits may be outweighed by unforeseen and uncertain consequences. Personal circumstances can change rapidly, and the revocability of wills allows for those changes to be addressed. To contract otherwise should in most instances be avoided.223 This is not to say that parties should not make identical wills, but, if they do, it should be made clear that there is no agreement that the wills should not be revoked. In the words of Hammond J in Re Newey (deceased):224 It may very well be that the parties agree to make identical (mutual) wills now, but that they agree to go no further than that. That would be a quite acceptable arrangement to some couples, and would leave it open to one or other of them to make such arrangements as they see fit in futuro. Presentism is a perfectly rational response to a very fluid world.

If clients insist upon mutual wills — that is, an agreement that the wills

should not be revoked — then its consequences must be prescribed in detail. This should include the effect of possible future changes in circumstances upon this agreement, including notice of revocation, [page 39] possible remarriage and loss of mental capacity. To avoid unnecessary litigation, it is prudent to record this agreement, either in the will itself or by a separate deed, to deal precisely with the extent of the property affected by the arrangement.

Joint Wills 1.52 In joint wills, two or more persons incorporate their testamentary wishes in the one document. Against a backdrop of little case law, the legal position appears to be that, provided each party has properly executed the will, it documents a separate will of each testator. Therefore, on the death of the first testator, the joint will is admissible to probate, and is again admissible on the death of the other(s).225 As the document is treated as the separate will of each party, all testamentary freedom is present, including the power of revocation, without the consent of the other. A joint will can also be a mutual will,226 in which case the law relating to mutual wills applies. If so, the survivor holds upon the usual (constructive) trust for the nominated beneficiaries.227 However, it cannot be assumed that the mere fact of a joint will is sufficient evidence to establish a mutual will.228

1. 2. 3. 4.

5.

Re Westminster’s Deed of Appointment [1959] Ch 265 at 271 per Lord Evershed MR. See 1.29–1.39. See 1.40–1.51. That the concept of revocability has been ingrained in English law since at least the Wills Act 1540 (UK) (see 21.9), as reflective of freedom of testation, has not precluded it from being questioned: see, for example, A M Johnson, ‘Is it Time for Irrevocable Wills?’ (2016) 53 U Louisville L Rev 393. Hornsby v Hornsby (No 2) [2014] WASC 434; BC201411250 at [86] per E M Heenan J (noting that

6. 7. 8. 9. 10.

11. 12.

13. 14.

15. 16. 17. 18.

19.

20. 21. 22. 23.

any will is ambulatory in that ‘it has no effect and confers no benefit on any person unless and until the testator dies with that will unrevoked’). This assumes that the testator has mental capacity to effect the revocation: see 5.13. Re Fenton (deceased) [1919] VLR 740 at 744 per Hood J. Re Sanders [1944] SASR 22 at 24 per Mayo J. Edwards v Edwards (2009) 25 VR 40; [2009] VSC 190; BC200904195 at [30] per Forrest J. Re Walker (a lunatic so found) [1905] 1 Ch 160 at 172 per Vaughan Williams LJ. Cock v Cooke (1866) LR 1 P & D 241 at 243 per Sir J P Wilde. See also Re Anziani [1930] 1 Ch 407 at 424 per Maugham J (‘it is quite clear … that a deed that is not intended to have any effect until the testatrix’s death is testamentary, and I doubt very much whether a document not intended to have any effect until her death could be regarded from any point of view as a conveyance inter vivos’). That is, an intention to make a testament or will: see 2.21, 2.22. Cf Gamer v Whip [2012] QSC 209; BC201206094 (where Atkinson J held that a beneficiary under a will, who nearing death executed a document to ‘bequeath’ her entitlement under the will to another, had no testamentary intention, notwithstanding the use of the word ‘bequeath’, because she intended the document to have immediate effect as an assignment of a chose in action). King’s Proctor v Daines (1830) 3 Hagg Ecc 218; 162 ER 1136. Robertson v Smith (1870) LR 2 P & D 43 at 45 per Lord Penzance (‘It has long since been decided that if the language of the paper is insufficient, parol evidence may be admitted to ascertain such intention’); Re Berger (deceased) [1990] Ch 118 at 129–30 per Mustill LJ. See, for example, Cock v Cooke (1866) LR 1 P & D 241 (where a duly executed paper in terms that ‘I wish my sister to have my bankbook for her own use’ was held to be testamentary, as the court was satisfied on the evidence that the deceased, at the time of its execution, intended it to take effect after her death, and not as a present deed of gift). See 4.1–4.20. See 4.30–4.52. See 4.21–4.29. In the Goods of Jordan (1868) LR 1 P & D 555 at 556 per Sir J P Wilde; Brownrigg v Pike (1882) LR 7 PD 61 at 64 per Sir James Hannen P (each citing E Vaughan Williams, A Treatise on the Law of Executors and Administrators, 8th ed, Stevens & Sons, London, 1879, p 231; in the case of Jordan, an earlier edition of this work); Union Bank of Australia Ltd v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492 at 515; BC1000033 per Isaacs J (citing Brownrigg v Pike). However, in Jordan the will actually disposed of the testator’s realty in addition to making provision for appointment of an executor, and in Brownrigg the will made provision for something to be done by the executor (namely that a memorial window be erected). The cases are, therefore, not direct authority for the proposition in question. Cf Re Estate of Smith [2004] NTSC 15; BC200401578 (where Martin CJ ruled that a will that, apart from appointing the deceased’s son as executor, stated ‘I give devise and bequeath all my personal possessions to my family as arranged by me and known to my executor’, failed by reason of the uncertainty as to the deceased’s intention). See 12.5–12.10. See generally 2.2–2.20. See 19.34–19.38. See generally D S Gordon, ‘Letters Non-Testamentary’ (2014) 62 Kansas L Rev 585 (explaining, inter alia, the value of correspondence of this kind).

24. 25. 26. 27.

28. 29. 30. 31. 32. 33. 34.

35. 36. 37. 38.

39.

40. 41.

42.

43.

44. 45. 46. 47.

Douglas-Menzies v Umphelby [1908] 2 AC 224 at 233 per Lord Robertson. See 5.3–5.5. As to the formalities required for a valid will, see 4.1–4.20. Smith v O’Neill [2014] NSWSC 1119; BC201406720 at [139] per Hallen J (‘It is not necessary that the document said to be a Will should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient if it is intended to dispose of property, or of rights of the deceased, in a disposition that is to take effect upon death’). Milnes v Foden (1890) LR 15 PD 105 at 107 per the President; Re Shepperd (deceased) (1893) 5 QLJ 116 at 117 per Griffith CJ; Re Cowin [1968] QWN 3. In the Goods of Mundy (deceased) (1860) 2 Sw & Tr 119; 164 ER 938. In the Goods of Mardsen (deceased) (1860) 1 Sw & Tr 452; 164 ER 851. Bartholomew v Henley (1820) 3 Phill 137; 161 ER 1337. In the Goods of Morgan (1866) LR 1 PD 214. See 2.21–2.26. See generally N Peart and P Vines, ‘Will-Substitutes in New Zealand and Australia’ in A Braun and A Röthel, Passing Wealth on Death: Will-Substitutes in Comparative Perspective, Hart Publishing, Oxford, 2016, Ch 5. As to grants of probate generally, see Chapter 11. Russell v Scott (1936) 55 CLR 440 at 454; BC3600018 per Dixon and Evatt JJ. Tompson v Browne (1835) 3 My & K 32; 40 ER 13. Williams v Federal Commissioner of Taxation (1950) 81 CLR 359 at 379; BC5000360 per Williams J. Under the Life Insurance Act 1995 (Cth) s 205(1), money payable under the policy is generally not available to meet the deceased’s debts. See Ioppolo and Hesford v Conti [2013] WASC 389; BC201303434 at [22]–[26] per Sanderson M (noting that testamentary directions as to the distribution of superannuation can be ignored by the fund trustee without, for that reason alone, being open to allegations of not exercising its discretion bona fide). Superannuation Industry (Supervision) Act 1993 (Cth) s 59(1A). Unless sooner revoked by the member, a binding death nomination ceases to have effect at the end of the period of 3 years after the day it was first signed, or last confirmed or amended, by the member (or a shorter period if the governing rules of the fund fix a shorter period): Superannuation Industry (Supervision) Regulations 1994 (Cth) reg 6.17A(7). The requirements for a binding death nomination are contained in Superannuation Industry (Supervision) Regulations 1994 (Cth) reg 6.17A (which prescribe writing, signature and witnessing requirements, and constrain those who can benefit from the nomination to the legal personal representative or a dependant of the member). See T Palmer, ‘It’s Super Important’ (2016) 90 (Jan/Feb) LIJ 49 (but noting the advisability of carving out and keeping separate death benefits from other estate assets, as death benefits are usually exempt from being claimed to satisfy claims against a bankrupt estate). [1990] 2 AC 548 (noted G Koldilinye, ‘Pension Scheme Nominations and the Wills Act’ [1990] Conv 438; R Atherton, ‘Nominations and Testamentary Dispositions’ (1991) 65 ALJ 49). Baird v Baird [1990] 2 AC 548 at 557. See also Re Danish Bacon Co Ltd Staff Pension Fund Trusts [1971] 1 WLR 248 at 255–7 per Megarry J. [1981] 1 NSWLR 15 at 32. Re MacInnes [1935] 1 DLR 401 (involving a contributory savings fund established by an employer from which the employee was entitled to withdraw at any time); Re Shirley (1965) 49 DLR (2d) 474 (involving an investor’s certificate, annexed to which was a revocable declaration of trust that had

48. 49. 50. 51. 52.

53. 54. 55.

56. 57. 58. 59. 60. 61. 62. 63.

64. 65. 66. 67. 68. 69. 70. 71. 72.

been executed by the deceased in favour of his wife, under the terms of which the full power of disposition remained in the deceased during his lifetime). See K F Mackie, E B Histed and J Page, Australian Land Law in Context, Oxford University Press, Melbourne, 2012, pp 281–2. See Meagher, Gummow and Lehane, p 84 (referring to the principle that ‘equity leans against joint tenancies’). See R Barber, ‘The Opening of a Joint Bank Account’ (1984) 8 U Tas LR 74. (1936) 55 CLR 440; BC3600018. Russell v Scott (1936) 55 CLR 440 at 450–1; BC3600018. See also at 448–9 per Starke J, at 457–8 per McTiernan J; Aroso v Coutts & Co [2002] 1 All ER (Comm) 241; [2001] EWHC 443 (Ch); Drakeford v Cotton [2012] 3 All ER 1138; [2012] EWHC 1414 (Ch) at [57] per Morgan J. Russell v Scott (1936) 55 CLR 440 at 448; BC3600018 per Starke J. As to resulting trusts, see Dal Pont, Ch 26. Re Beaumont [1902] 1 Ch 889 at 892 per Buckley J. Hedges v Hedges (1708) Prec Ch 269 at 270; 24 ER 130 at 130. See also Cain v Moon [1896] 2 QB 283 at 286 per Lord Russell CJ; Re Craven’s Estate (No 1) [1937] Ch 423 at 426 per Farwell J; Delgoffe v Fader [1939] Ch 922 at 927–8 per Luxmoore LJ; Harneiss v Public Trustee (1940) 40 SR (NSW) 414 at 416–17 per Williams J; Dufficy v Mollica [1968] 3 NSWR 751 at 758 per Holmes JA; Public Trustee v Bussell (1993) 30 NSWLR 111 at 115; BC9303903 per Cohen J; Wilson v Paniani [1996] 3 NZLR 378 at 381 per Gallen J; King v Dubrey [2016] Ch 221; [2015] EWCA Civ 581 at [50] per Jackson LJ, with whom Patten and Sales LJJ agreed. A Borkowski, Deathbed Gifts, Oxford University Press, Oxford, 1999, p 9. H Cumber, ‘Donationes Mortis Causa: A Doctrine on its Deathbed?’ [2016] Conv 56 at 61. See, for example, J Brook, ‘King v Dubrey — A Donatio Mortis Causa Too Far?’ [2014] Conv 525 at 533. See, for example, King v Dubrey [2016] Ch 221; [2015] EWCA Civ 581 at [53] per Jackson LJ, with whom Patten and Sales LJJ agreed. Smallacombe v Elder’s Trustee & Executor Co Ltd [1963] WAR 3 at 5 per Hale J (where, although the alleged donor was elderly, there was no evidence that he expected to die in the immediate future). Agnew v Belfast Banking Co [1896] 2 IR 204 at 221 per FitzGibbon LJ. See, for example, Re Craven’s Estate (No 1) [1937] Ch 423 (where the donor feared that she might die as a result of a medical procedure). Mills v Shields [1948] IR 367. Cf the earlier view expressed in Agnew v Belfast Banking Co [1896] 2 IR 204 (denying effect to a gift pending the donor’s suicide on the ground that it would be contrary to public policy: see at 213–14 per Walker C, at 216 per Porter MR, at 221 per FitzGibbon LJ, at 223– 4 per Barry J). See 1.28. [2016] Ch 221; [2015] EWCA Civ 581. In Australian law it cannot be assumed that land (or at least Torrens system land) is a potential subject matter of a donatio mortis causa: see 1.27. King v Dubrey [2016] Ch 221; [2015] EWCA Civ 581 at [55] per Jackson LJ. King v Dubrey [2016] Ch 221; [2015] EWCA Civ 581 at [55] per Jackson LJ. King v Dubrey [2016] Ch 221; [2015] EWCA Civ 581 at [90] per Patten LJ. King v Dubrey [2016] Ch 221; [2015] EWCA Civ 581 at [92] per Patten LJ. [2014] Ch 271; [2013] EWHC 1449 (Ch). Vallee v Birchwood [2014] Ch 271; [2013] EWHC 1449 (Ch) at [25].

73. 74.

75. 76. 77.

78.

79. 80. 81. 82. 83.

84. 85. 86.

87. 88. 89. 90. 91. 92. 93.

King v Dubrey [2016] Ch 221; [2015] EWCA Civ 581 at [51] per Jackson LJ, with whom Patten and Sales LJJ agreed. See J Brook, ‘King v Dubrey — A Donatio Mortis Causa Too Far?’ [2014] Conv 525 at 531 (describing the decision in Vallee as setting ‘an extremely low threshold’ and as ‘arguably creating a new unconscionability requirement which seems to imply that a donor must adhere to whatever wishes he or she enunciates during his or her latter days or months, even if the donor does not consider them seriously enough to take formal steps to reflect them in a will’). A Briggs, ‘DMC: Not Quite Dead?’ (2015) 165 (17 July) NLJ 16. See, for example, Re Craven’s Estate (No 1) [1937] Ch 423 (5 days); Sen v Headley [1991] Ch 425 (3 days). King v Dubrey [2016] Ch 221; [2015] EWCA Civ 581 at [56]. See, for example, Hobbes v NSW Trustee & Guardian [2014] NSWSC 570; BC201403514 (where White J found that the delivery of the keys to the plaintiff (H) when the donor was leaving his unit with paramedics in late December 2010 with the words, ‘All yours now. Not coming back. Look after [my pet bird]’, showed that the donor was contemplating imminent death, in circumstances when the donor died in hospital 2 weeks later: at [27]). Wilkes v Allington [1931] 2 Ch 104. See also Mills v Shields [1948] IR 367 (where the donor made the gift shortly before he was scheduled to undergo a dangerous medical procedure, but committed suicide after the scheduled procedure). Cain v Moon [1896] 2 QB 283 at 286 per Lord Russell CJ; Vallee v Birchwood [2014] Ch 271; [2013] EWHC 1449 (Ch) at [12] per Jonathan Gaunt QC. Re Craven’s Estate (No 1) [1937] Ch 423 at 426 per Farwell J. King v Dubrey [2016] Ch 221; [2015] EWCA Civ 581 at [57] per Jackson LJ, with whom Patten and Sales LJJ agreed. (1940) 40 SR (NSW) 414. See also Watts v Public Trustee (1949) 50 SR (NSW) 130. For inter vivos gifts to be effective, the donor must do everything that, according to the nature of the property comprised in the gift, is required to be done to complete the gift: see Dal Pont, pp 573–7; Meagher, Gummow and Lehane, pp 243–53. An exception to this basic principle with particular application in the testamentary context is the so-called rule in Strong v Bird (1874) LR 18 Eq 315, as to which see 14.21–14.23. Vallee v Birchwood [2014] Ch 271; [2013] EWHC 1449 (Ch) at [42] per Jonathan Gaunt QC. King v Dubrey [2016] Ch 221; [2015] EWCA Civ 581 at [59] per Jackson LJ, with whom Patten and Sales LJJ agreed. See, for example, Hawkins v Blewitt (1798) 2 Esp 662; 170 ER 489 (where the donor ordered that a box of his be delivered to his aunt, but the next day requested that the aunt return its key because the donor wanted an article of his apparel contained in the box; this led Lord Kenyon to remark that the box seemed ‘to have been left in the [aunt’s] care for safe custody’: at 664; 490); In the Estate of Wood (deceased) (1904) 21 WN (NSW) 254. Sen v Headley [1991] Ch 425 at 438 per Nourse LJ; Vallee v Birchwood [2014] Ch 271; [2013] EWHC 1449 (Ch) at [37] per Jonathan Gaunt QC. Ward v Turner (1752) 2 Ves Sen 431 at 444; 28 ER 275 at 283 per Lord Hardwicke LC. See, for example, Bunn v Markham (1816) 7 Taunt 224; 129 ER 90. See C S C Sheller, ‘Donatio Mortis Causa: the Problem of Delivery’ (1960) 33 ALJ 387. Dufficy v Mollica [1968] 3 NSWR 751 at 754–5 per Sugerman JA. [1995] 3 All ER 980. See, for example, Cain v Moon [1896] 2 QB 283. See also Re Weston [1902] 1 Ch 680 at 684 per Byrne J (who, after referring to Cain v Moon, opined that ‘it is not essential that the traditio [being

94. 95.

96. 97.

98.

99.

100. 101. 102. 103. 104. 105. 106. 107.

108.

109. 110. 111. 112. 113. 114.

the simple delivery of possession with the intention of passing ownership] should be at the actual moment of the gift; in that case the original delivery had been made alio intuitu [under a different aspect], and yet it was held to be sufficient’). Ward v Turner (1752) 2 Ves Sen 431 at 442–3; 28 ER 275 at 282 per the Chancellor. Ward v Turner (1752) 2 Ves Sen 431 at 442–3; 28 ER 275 at 282 per the Chancellor; Re Kaeding [1929] SASR 475 at 479 per Napier J; Birch v Treasury Solicitor [1951] Ch 298 at 308 per Evershed MR. Birch v Treasury Solicitor [1951] Ch 298 at 311 per Evershed MR. See, for example, Re Weston [1902] 1 Ch 680; Re Andrews [1902] 2 Ch 394; Re Lee [1918] 2 Ch 320; Public Trustee v Young (1940) 40 SR (NSW) 233; Harneiss v Public Trustee (1940) 40 SR (NSW) 414; Birch v Treasury Solicitor [1951] Ch 298; Hobbes v NSW Trustee & Guardian [2014] NSWSC 570; BC201403514. See, for example, Hobbes v NSW Trustee & Guardian [2014] NSWSC 570; BC201403514 at [54] per White J (ruling that the donor’s card for a fixed term deposit was an indicium of title, having been created contemporaneously with the deposit, the delivery of which rendered a donatio of deposit moneys effective). Tawil v Public Trustee (NSW) (2009) 2 ASTLR 317; [2009] NSWSC 256; BC200902971 at [16]–[27] per Brereton J (involving statements that were not certificates of deposit but merely showed balances and accrued interest). See, for example, Moore v Moore (1874) LR 18 Eq 474 at 483–6 per Hall VC; Re Weston [1902] 1 Ch 680 at 684–5 per Byrne J. Dufficy v Mollica [1968] 3 NSWR 751 at 759 per Holmes JA (dissenting but not on this point); Public Trustee v Bussell (1993) 30 NSWLR 111 at 118–19; BC9303903 per Cohen J. Watts v Public Trustee (1949) 50 SR (NSW) 130; Bayliss v Public Trustee (1988) 12 NSWLR 540. [1991] Ch 425. See P Sparkes, ‘Death-Bed Gifts of Land’ (1992) 43 NILQ 35; J H Baker, ‘Land as a Donatio Mortis Causa’ (1993) 109 LQR 19. Public Trustee v Bussell (1993) 30 NSWLR 111 at 118; BC9303903 per Cohen J. A A Preece, Lee’s Manual of Queensland Succession Law, 7th ed, Lawbook Co, Australia, 2013, p 33. Cf Hobbes v NSW Trustee & Guardian [2014] NSWSC 570; BC201403514 at [63], [64] per White J. See Corin v Patton (1990) 169 CLR 540; BC9002936 (involving an attempted inter vivos gift of Torrens system land). The same may now be said in England vis-à-vis land registered under the Land Registration Act 2002 (UK), wherein the Land Registry no longer issues land certificates: see N Roberts, ‘Donationes Mortis Causa in a Dematerialised World’ [2013] Conv 113. King v Dubrey [2016] Ch 221; [2015] EWCA Civ 581 at [53], [60] per Jackson LJ. See also at [90] per Patten LJ; Wilson v Paniani [1996] 3 NZLR 378 at 384 per Gallen J (‘there ought to be stringent requirements in respect of such claims since they are frequently made without any independent evidence to support them and in circumstances where they would be difficult to refute’). King v Dubrey [2016] Ch 221; [2015] EWCA Civ 581 at [53] per Jackson LJ. See also at [89] per Patten LJ. Cosnahan v Grice (1862) 15 Moo PC 215 at 223; 15 ER 476 at 479. Re Dillon (1890) 44 Ch D 76 at 80–1 per Cotton LJ. Tawil v Public Trustee (NSW) (2009) 2 ASTLR 317; [2009] NSWSC 256; BC200902971 at [31]–[36] per Brereton J. See 1.40–1.51. As to the elements of a contract, see J W Carter, Contract Law in Australia, 6th ed, LexisNexis

115. 116. 117. 118. 119. 120. 121. 122. 123. 124.

125. 126.

127. 128. 129. 130. 131. 132.

133.

134. 135.

136. 137.

Butterworths, Australia, 2013, Chs 3–9. See 1.37. See 1.2. See, for example, Gillett v Holt [2001] Ch 210. See, for example, Saliba v Tarmo [2009] NSWSC 581; BC200905518. See Dal Pont, Chs 10 (estoppel), 38 (constructive trusts). See generally W A Lee, ‘Contracts to Make Wills’ (1971) 87 LQR 358; (1972) 88 LQR 320. Certoma, p 56. As to family provision claims, see Pt III. Hammersley v De Biel (1845) 12 Cl & Fin 45; 8 ER 1312; Graham v Wickham (1863) 1 De GJ & Sm 474; 46 ER 188. Schaefer v Schuhmann [1972] AC 572 at 586 per Lord Cross (PC). See, for example, Synge v Synge [1894] 1 QB 466 (where the action was brought during the lifetime of the defendant on his antecedent promise to leave to the plaintiff a house which he afterwards disposed of to another; the measure of damages was held to be the value of the interest lost to the plaintiff). Palmer v Bank of New South Wales [1973] 2 NSWLR 244 at 248–9 per Hardie JA (aff’d Palmer v Bank of New South Wales (1975) 133 CLR 150; BC7500070). Schaefer v Schuhmann [1972] AC 572 at 586 per Lord Cross (PC). In Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84; BC201004997 at [31] Handley AJA, with whom Allsop P and Giles JA agreed, remarked that equity enforces a contract to leave property by will ‘not by restraining or nullifying an inconsistent will, but by fastening a trust on the estate to give effect to the contract’. It appears that his Honour was using the language of trust to refer to the law recognising an equitable interest in the property the subject of the promise. Jervis v Wolferstan (1874) LR 18 Eq 18 at 24 per Jessel MR. As outlined by the High Court in Palmer v Bank of New South Wales (1975) 133 CLR 150; BC7500070. (1975) 133 CLR 150; BC7500070. Palmer v Bank of New South Wales (1975) 133 CLR 150 at 159; BC7500070 per Barwick CJ, with which the other justices agreed. Palmer v Bank of New South Wales (1975) 133 CLR 150 at 159; BC7500070. There was also an argument targeting equitable fraud, which was decisively rejected: see at 160–1. Robinson v Ommanney (1882) 21 Ch D 780; Palmer v Bank of New South Wales (1975) 133 CLR 150; BC7500070; Aslan v Kopf (CA(NSW), 16 May 1995, unreported) BC9504562 at 5 per Gleeson CJ, with whom Kirby P and Priestley JA agreed. See, for example, Hammersley v De Biel (1845) 12 Cl & Fin 45; 8 ER 1312; Megic v Public Trustee for the Australian Capital Territory (1995) 59 FCR 165; BC9507717 (damages awarded for the breach of a testator’s promise not to revoke his will under which the applicant would take, in return for the latter’s undertaking to repair, renovate, and to contribute to the upkeep of, the testator’s premises and to provide ongoing care for the testator). See 5.23, 5.24. Re Marsland [1939] Ch 820 (where the testator, in a deed of separation from his wife, promised not to revoke his will, and remarried after her death; the English Court of Appeal found no breach of contract, even though the testator had subsequently made provision for his second wife in a new will: see at 826–7 per Greene MR). See 5.35–5.41. Civil Law (Property) Act 2006 (ACT) s 204; Conveyancing Act 1919 (NSW) s 54A; Law of Property Act 2000 (NT) s 62; Property Law Act 1974 (Qld) s 59; Law of Property Act 1936 (SA) s 26;

138. 139. 140. 141. 142. 143. 144.

145.

146.

147. 148. 149.

150. 151. 152. 153.

154.

Conveyancing and Law of Property Act 1884 (Tas) s 36; Instruments Act 1958 (Vic) s 126; WA: Statute of Frauds 1677 (UK) s 4 (which applies as a result of the Law Reform (Statute of Frauds) Act 1962 (WA) s 2). Schaefer v Schuhmann [1972] AC 572 at 585 per Lord Cross (PC); Staib v Powell [1979] Qd R 151. Birmingham v Renfrew (1937) 57 CLR 666; BC3700021. See Dal Pont, Ch 38; Jacobs, Ch 13. See Dal Pont, Ch 10; Meagher, Gummow and Lehane, Ch 17. See Dal Pont, Ch 12; Meagher, Gummow and Lehane, pp 678–87. See M Davey, ‘Testamentary Promises’ (1988) 8 LS 92. Originally Law Reform Act 1944 (NZ) s 3, as to which see Nealon v Public Trustee [1949] NZLR 148, where the Court of Appeal highlighted that the section was aimed at addressing injustices caused by the common law requirement to establish certainty of the precise extent of the promised reward before a promise of testamentary reward for services would be held contractually binding on the estate of the promisor, and the fact that a promise involving land could be enforced only upon meeting formality requirements: see at 154–5 per O’Leary CJ, at 157 per Kennedy J, at 159 per Finlay J). See generally S Nield, ‘“If you look after me, I will leave you my estate”: The Enforcement of Testamentary Promises in England and New Zealand’ (2000) 20 LS 85; B Patterson, Law of Family Protection and Testamentary Promises, 4th ed, LexisNexis NZ, Wellington, 2013, Ch 13. Law Reform (Testamentary Promises) Act 1949 (NZ) s 3(1). The statutory avenue for relief does not affect any remedy a claimant may have apart from the Act in respect of any promise to which the section relates, although a claimant cannot secure more than one remedial avenue for the promise in question: s 3(8). Namely, all the circumstances of the case, including in particular the circumstances in which the promise was made and the services were rendered or the work was performed, the value of the services or work, the value of the testamentary provision promised, the amount of the estate, and the nature and amounts of the claims of other persons in respect of the estate, whether as creditors, beneficiaries, wife, husband, children, next-of-kin or otherwise: Law Reform (Testamentary Promises) Act 1949 (NZ) s 3(1). Law Reform (Testamentary Promises) Act 1949 (NZ) s 2. Law Reform (Testamentary Promises) Act 1949 (NZ) s 3(2)(a). Byrne v Bishop [2001] 3 NZLR 780; [2001] NZCA 309 at [8] per Blanchard J, delivering the reasons of the court. See, for example, Gibson v Gibson (HC(NZ), Tipping J, 15 April 1992, unreported) (where a mere nodding of the head was enough to substantiating a promise in the circumstances). Byrne v Bishop [2001] 3 NZLR 780; [2001] NZCA 309 at [6] per Blanchard J, delivering the reasons of the court. See, for example, Re Archer [1990] 3 NZLR 737; Powell v Public Trustee [2003] 1 NZLR 381. Re Welch [1990] 3 NZLR 1 at 6 per Sir Robin Cooke (PC). Compare, for example, Public Trustee v Bick [1973] 1 NZLR 301 (where McCarthy J noted that ‘[t]he Court should not treat the circumstance that [a particular] property was promised as the only consideration, or necessarily as the all-important one’: at 306) with Re Townley [1982] 2 NZLR 87 (award exceeding the promise in view of the claimant’s significant contribution to the deceased’s property and the inflation of property values in the period between the promise and the deceased’s death). Re Welch [1990] 3 NZLR 1 at 7 per Sir Robin Cooke (PC). See also Ireland v Grant [2014] NZHC 1523; BC201462247 at [32] per Gendall J (noting that ‘in many situations the nature of the work or services will not be readily amenable to rigid arithmetical calculations, and must be assessed in the round’, but that ‘it is important that any award do no more than compensate for those services

rendered or work performed; the award must be fair recompense’). 155. See 19.40–19.46. 156. See, for example, Flocas v Carlson [2015] VSC 221; BC201504703 (mutual wills in the context of brother and sister, who were close, shared everything, were elderly and had spent their lifetime cohabiting in the same house). 157. The doctrine is not, however, confined to testamentary dispositions made by will: see Y K Liew, ‘The Ambit of the Mutual Wills Doctrine’ (2016) 132 LQR 664 at 665–6; Re Newey (deceased) [1994] 2 NZLR 590 at 601 per Hammond J. 158. See, for example, Dufour v Pereria (1769) 1 Dick 419; 21 ER 332 (ostensibly the first decided case on mutual wills). 159. See, for example, Birmingham v Renfrew (1937) 57 CLR 666; BC3700021, discussed at 1.41. 160. R Croucher, ‘Mutual Wills: Contemporary Reflections on an Old Doctrine’ (2005) 29 MULR 390 at 392–3. 161. See 1.31–1.39. 162. See Flocas v Carlson [2015] VSC 221; BC201504703 at [190] per McMillan J (noting, inter alia, that the emergence of the doctrine of privity in final form awaited the decision in Tweddle v Atkinson (1861) 1 B & S 393; 121 ER 762, nearly a century after the locus classicus of mutual wills (Dufour v Pereria (1769) 1 Dick 419; 21 ER 332) was decided). 163. Flocas v Carlson [2015] VSC 221; BC201504703 at [188] per McMillan J (noting that early English probate decisions emphasised the public nature of the court’s power to admit a will to probate, such that it cannot be restrained or controlled by the agreement of the parties). 164. See, for example, G E Dal Pont, ‘Equity’s Chameleon — Unmasking the Constructive Trust’ (1997) 16 Aust Bar Rev 46 at 76–8. 165. See, for example, C E F Rickett, ‘Mutual Wills and the Law of Restitution’ (1989) 105 LQR 534. 166. Cf Re Newey (deceased) [1994] 2 NZLR 590 at 597 per Hammond J (in the context of restitutionary theory). Note that, as a result of s 30 of the Wills Act 2007 (NZ) (which applies to wills signed on or after 1 November 2007), the debate in New Zealand has been superseded by statute. The section gives mutual wills a statutory foundation. As to the backdrop to this provision, see New Zealand Law Commission, Succession Law — A Succession (Wills) Act, NZLC R41, October 1997, pp 56–7 (which suggests that the section is designed to restate the substance of the existing law). 167. Flocas v Carlson [2015] VSC 221; BC201504703 at [189] per McMillan J (albeit speaking in terms of contractual damages). 168. (1937) 57 CLR 666; BC3700021. 169. Birmingham v Renfrew (1937) 57 CLR 666 at 683; BC3700021. 170. Birmingham v Renfrew (1937) 57 CLR 666 at 674; BC3700021 per Latham CJ; Re Cleaver (deceased) [1981] 2 All ER 1018 at 1022–3 per Nourse J; Baird v Smee [2000] NSWCA 253; BC200005399 at [6] per Mason P. See, for example, Re Oldham [1925] Ch 75; Gray v Perpetual Trustee Co Ltd [1928] AC 391; Re Goodchild (deceased) [1997] 3 All ER 63. 171. Re Goodchild (deceased) [1997] 3 All ER 63 at 71 per Leggatt LJ. 172. Charles v Fraser [2010] WTLR 1489; [2010] EWHC 2154 (Ch) at [64] per Jonathan Gaunt QC. 173. Occasional suggestions that an agreement not to revoke may be implied in every case where an agreement to make identical wills is entered into (see, for example, Hudson v Gray (1927) 39 CLR 473 at 485–7 per Isaacs J; C E F Rickett, ‘A Rare Case of Mutual Wills and its Implications’ (1982) 8 Adel LR 178 at 185) have been largely rejected: see, for example, Gray v Perpetual Trustee Co Ltd [1928] AC 391 at 400 per Viscount Haldane; Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11 at 13 per McPherson J; Re Newey (deceased) [1994] 2 NZLR 590 at 596 per Hammond J. Cf Wills Act 2007

174.

175. 176.

177. 178. 179.

180. 181. 182.

183.

(NZ) s 30(3) (which in giving the mutual wills doctrine a statutory foundation explicitly envisages that the relevant agreement or promise ‘may be made orally, in writing or electronically’). Birmingham v Renfrew (1937) 57 CLR 666 at 674; BC3700021 per Latham CJ; Campbell v Campbell [2015] NSWSC 784; BC201505378 at [332] per Sackar J (‘Husbands and wives, especially those who are sophisticated, would, I consider, be wary about entering arrangements which they agreed would never be varied, especially without legal advice as to the repercussions’); Flocas v Carlson [2015] VSC 221; BC201504703 at [186] per McMillan J (‘the mere fact of two wills with corresponding obligations being entered into at the same time, prepared by the same lawyers and witnessed by the same people will not, of itself, be sufficient to establish an intention to be legally bound by that arrangement’, as ‘[p]ersons in receipt of legal advice are presumed to know or have been told that wills are revocable instruments’). Pridham v Pridham (2010) 270 LSJS 433; [2010] SASC 204; BC201004728 at [27] per Layton J. See, for example, Sheslow v Kostin (1997) 11 BPR 21,043 at 21,048; BC9702183 per Young J (‘all the cases seem to me to insist on there being a contract which is enforceable at law before the [mutual wills] principles can apply’); Baird v Smee [2000] NSWCA 253; BC200005399 at [26] per Handley JA (‘the need to prove a legally binding contract has always been insisted upon’); Flocas v Carlson [2015] VSC 221; BC201504703 at [179] per McMillan J. Cf Osborne v Estate of Osborne (2001–2) 4 ITELR 804; [2001] VSCA 228; BC200107833 at [18] per Winneke P (‘Whether one calls it a “contract”, “an agreement”, “an undertaking” or “legally enforceable promise” is merely a matter of nomenclature’); Lewis v Cotton [2001] 2 NZLR 21; [2000] NZCA 399 at [52] per Blanchard J, delivering the reasons of the court; J Cassidy, ‘An Equitable Agreement or a Contract in Law: Merely a Matter of Nomenclature’ (2003) 27 MULR 217 at 222–45 (who argues that there is no need to prove a legally binding contract). Campbell v Campbell [2015] NSWSC 784; BC201505378 at [330] per Sackar J. Birmingham v Renfrew (1937) 57 CLR 666 at 674; BC3700021 at 681–2 per Dixon J. Re Cleaver (deceased) [1981] 2 All ER 1018 at 1024 per Nourse J; Re Newey (deceased) [1994] 2 NZLR 590 at 595 per Hammond J (warning of dangers in endeavouring to split up the normal civil standard of proof into sub-categories or adding some sort of gloss to the general principle); Osborne v Estate of Osborne (2001–2) 4 ITELR 804; [2001] VSCA 228; BC200107833 at [27] per Buchanan JA. See, for example, Re Hagger [1930] 2 Ch 190; Re Green [1951] Ch 148. See, for example, Re Newey (deceased) [1994] 2 NZLR 591 at 594–5 per Hammond J. See, for example, Re Will of Masci [2014] QSC 281; BC201410118 (aff’d Masci v Masci [2016] 2 Qd R 428; [2015] QCA 245; BC201511600) (where provision for a life estate in residential property in the survivor led the respective courts to imply a term to the effect that the wills would not be revoked; in the appeal decision Gotterson JA, with whom Morrison and Philippides JJA agreed, remarked (at [26]) that ‘it is significant that the husband and wife evidently thought it necessary to provide for rights in relation to the residential property after the death of the first of them to die … premised upon a notion of the estate of the first to die having an interest in the ownership of that property after the death such that there was a need to make it clear that, notwithstanding that interest, the survivor was assured of being able to reside in the property thereafter’, adding that ‘[h]ad they envisaged and intended that ownership of the residential property pass to the survivor of them, then the provisions they did make would have been entirely unnecessary’). Re Newey (deceased) [1994] 2 NZLR 590 at 595 per Hammond J; Baird v Smee [2000] NSWCA 253; BC200005399 at [6]–[14] per Mason P. See, for example, Re Goodchild (deceased) [1996] 1 All ER 670 at 678–83 per Carnwath J (aff’d Re Goodchild (deceased) [1997] 3 All ER 63), discussed at 1.44; Kennedy v Griffiths (2011) 5 ASTLR 345; [2011] QSC 369; BC201109312 (albeit an unusual case, in

184.

185. 186. 187. 188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199.

200. 201. 202. 203. 204. 205. 206. 207. 208. 209. 210.

211. 212. 213.

that Ann Lyons J found an agreement between a married couple as to the division of their estate but without wills that corroborated that agreement); Fry v Densham-Smith [2011] WTLR 387; [2010] EWCA Civ 1410. See further K Mackie, ‘Recent Developments in the Law Relating to Mutual Wills’ (1997) 5 APLJ 95 at 99–102. Flocas v Carlson [2015] VSC 221; BC201504703 at [230] per McMillan J. As to equity’s jurisdiction to intervene in order to prevent the Statute of Frauds (and parallel legislation) being used as an instrument of fraud, see Jacobs, pp 81–2. See, for example, Birmingham v Renfrew (1937) 57 CLR 666; BC3700021; Re Cleaver (deceased) [1981] 2 All ER 1018; Re Newey (deceased) [1994] 2 NZLR 591. See, for example, In the Estate of Heys (deceased) [1914] P 192; Re Williams [1933] Ch 244. See, for example, Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11. (1993) 32 NSWLR 574. Palmer v Nowell (SC(NSW), Brownie J, 22 July 1993, unreported). See Falcon v Famous Players Film Co [1926] 2 KB 474. Nowell v Palmer (1993) 32 NSWLR 574 at 578 per Mahoney JA, with whom Meagher and Handley JJA agreed. See, for example, Low v Perpetual Trustees WA Ltd (1995) 14 WAR 35 at 42–3; BC9503565 per Adams M. [1981] 2 All ER 1018. Re Cleaver (deceased) [1981] 2 All ER 1018 at 1025 per Nourse J. C E F Rickett, ‘A Rare Case of Mutual Wills and its Implications’ (1982) 8 Adel LR 178 at 184. [1996] 1 All ER 670 at 681. Re Goodchild (deceased) [1997] 3 All ER 63. Re Goodchild (deceased) [1996] 1 All ER 670 at 683. Birmingham v Renfrew (1937) 57 CLR 666 at 689; BC3700021 per Dixon J; Barns v Barns (2003) 214 CLR 169; [2003] HCA 9; BC200300694 at [85] per Gummow and Hayne JJ; Re Goodchild (deceased) [1996] 1 All ER 670 at 676–7 per Carnwath J (aff’d Re Goodchild (deceased) [1997] 3 All ER 63 at 70 per Leggatt LJ); Flocas v Carlson [2015] VSC 221; BC201504703 at [192] per McMillan J. Dufour v Pereira (1769) 1 Dick 419 at 420; 212 ER 332 at 333 per Lord Camden. [1905] P 194. Stone v Hoskins [1905] P 194 at 197. [1990] 2 Qd R 11. Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11 at 16–17. See further R Croucher, ‘Mutual Wills: Contemporary Reflections on an Old Doctrine’ (2005) 29 MULR 390 at 399–402. (1995) 14 WAR 35; BC9503565. Low v Perpetual Trustees WA Ltd (1995) 14 WAR 35 at 45; BC9503565 per Adams M. [1994] Ch 31. Osborne v Estate of Osborne (2001–2) 4 ITELR 804; [2001] VSCA 228; BC200107833 at [23]–[25] per Buchanan JA, with whom Winneke P agreed on this point (at [19]). Re Dale (deceased) [1994] Ch 31 at 48–9. Flocas v Carlson [2015] VSC 221; BC201504703 at [192] per McMillan J (‘the mutual wills agreement is a contract, and the floating obligation is an obligation that must be determined by reference to the express and implied terms of that contract’). See, for example, Birmingham v Renfrew (1937) 57 CLR 666; BC3700021. Birmingham v Renfrew (1937) 57 CLR 666 at 689; BC3700021 per Dixon J. R Croucher, ‘Mutual Wills: Contemporary Reflection on an Old Doctrine’ (2005) 29 MULR 390 at

404. 214. J D B Mitchell, ‘Some Aspects of Mutual Wills’ (1951) 14 Mod L Rev 136 at 140. 215. Birmingham v Renfrew (1937) 57 CLR 666 at 689; BC3700021 per Dixon J (who also likened the position of the survivor to a life tenant of the property the subject of the agreement). 216. Re Hagger [1930] 2 Ch 190 at 195 per Clauson J; Birmingham v Renfrew (1937) 57 CLR 666 at 689– 90; BC3700021 per Dixon J; Schaefer v Schuhmann [1972] AC 572 at 599 per Lord Simon; Healey v Brown [2002] WTLR 849; [2002] EWHC 1405 (Ch) at [13], [14] per Donaldson J. There is case authority, in any event, that where the trust obligation attaches to a specific asset in the form of land, the ultimate beneficiaries have an interest in the asset sufficient to afford standing to lodge a caveat: Fisher v Mansfield [1997] 2 NZLR 320 (where the mutual wills specifically identified the family home). The position is different, it appears, where the wills target the residue of the relevant estate (even though it may include land), in which event the beneficiary(ies) have no interest in any specific property of the survivor sufficient to sustain a caveat: Bayer v Wiltshier (HC(NZ), Anderson J, 21 July 1998, unreported); Fundel v Wall (2009) 10 NZCPR 153; BC200960342; Wilson v Saunders [2016] NZHC 1211; BC201661186. 217. Fazari v Cosentino [2010] WASC 40; BC201001099 at [36] per Le Miere J. 218. See 5.23, 5.24. 219. [1951] Ch 148. 220. Re Green (deceased) [1951] Ch 148 at 155. 221. [1996] 1 All ER 670 at 677–8 (aff’d Re Goodchild (deceased) [1997] 3 All ER 63). 222. See 1.45, 1.46. 223. See R Burgess, ‘A Fresh Look at Mutual Wills’ [1970] Conv 230 at 246 (counselling to ‘avoid mutual wills like the plague’); M Pawlowski and J Brown, ‘Problems with Mutual Wills — A Study of Probate Practice’ [2012] Conv 467 (who find, as a result of an empirical study, that mutual wills are seldom used in practice by reason of their inherent flaws and practical difficulties; the authors conclude that ‘mutual wills are best left well alone’: at 481); Olins v Walters [2009] Ch 212; [2008] EWCA Civ 782 at [3] per Mummery LJ, with whom Dyson and Maurice Kay LJJ concurred (the mutual wills doctrine ‘continues to be a source of contention for the families of those who have invoked it’, such that ‘[t]he likelihood is that in future even fewer people will opt for such an arrangement and even more will be warned against the risks involved’). 224. [1994] 2 NZLR 590 at 596. 225. In the Goods of Lovegrove (deceased) (1862) 2 Sw & Tr 453; 164 ER 1072; In the Estate of Heys (deceased) [1914] P 192. 226. See, for example, Re Hagger [1930] 2 Ch 190; Re Will of Masci [2014] QSC 281; BC201410118 (aff’d Masci v Masci [2016] 2 Qd R 428; [2015] QCA 245; BC201511600). 227. See 1.49. 228. See, for example, Pratt v Johnson [1959] SCR 102.

[page 40]

CHAPTER 2

Mental Elements Mental Capacity Introductory observations Test for mental capacity Elements of test for mental capacity Understanding of nature and effects of act Awareness of the nature, extent and value of the estate Comprehension and appreciation of claims on testator’s bounty No delusions (or lucid intervals) Parameters of mental (in)capacity Proof of mental incapacity Relevant time for satisfaction of test of mental capacity

2.2 2.2 2.5 2.6 2.6 2.7 2.8 2.11 2.14 2.16 2.19

Testamentary Intention Need for animus testandi Conditional intention

2.21 2.21 2.23

Knowledge and Approval

2.27

Suspicious Circumstances Will prepared by beneficiary or associate Other suspicious circumstances Proof relating to suspicious circumstances Severance

2.29 2.30 2.32 2.36 2.38

Undue Influence Need for coercion Distinguished from undue influence in equity Proof of undue influence Consequence of finding of undue influence

2.39 2.39 2.40 2.42 2.47

Fraud False allegations of relationships False allegations of character and conduct Forgery Other cases of fraud Severance

2.48 2.49 2.51 2.52 2.53 2.54

Mistake and Statutory Rectification of Wills Probate jurisdiction Jurisdiction does not rectify mistake as to the legal effect of words used

2.55 2.56 2.56 [page 41]

Power to omit words in certain circumstances No power to insert words Statutory rectification powers Uniform succession laws model Australian Capital Territory and South Australian model Rectification and the execution of wrong ‘mirror wills’ Relationship between statutory rectification powers and the process of construction Time limits and extensions of time for applications to rectify Delegation of Will-making Power General law rule against testamentary delegation Statutory ouster of general law rule

2.57 2.60 2.62 2.63 2.67 2.72 2.75 2.76 2.78 2.78 2.82

2.1 Beyond fulfilling specific formal requirements,1 a valid will is premised on the testator possessing the necessary mental capacity. That capacity may be affected by provisions in the wills legislation that prevent minors from making wills2 (unless they are married other than in Western Australia),3 or by the testator not being of sound mind.4 Even if he or she has the requisite capacity, the testator must intend the documents to operate as a will — he or she must have animus testandi (testamentary intention)5 — as well as know and approve of its contents,6 and be free from undue influence7 or fraud.8 If suspicious

circumstances surround the will’s execution, those suspicions must be removed before probate can be granted.9 If a testator errs in recording his or her testamentary wishes, in some circumstances a court may be able to rectify the error.10 Each of these elements going to the making of a will is elaborated in this chapter, which concludes with mention of the general law rule against a testator delegating his or her testamentary power.11 [page 42]

Mental Capacity Introductory observations 2.2 The validity of a will rests on the testator having sufficient mental capacity. There is tension between the much-articulated principle of freedom of testation and the legal consequences of a finding of mental incompetency (namely, that the document cannot be admitted to probate). Accordingly, the courts approach allegations of lack of mental capacity with caution, and deal with this tension in the manner described by Kirby P in Re Estate of Griffith (deceased):12 In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent — more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will … Nor will partial unsoundness of mind, which does not operate on the relevant capacities to appreciate the extent of and dispose of the estate, necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval … Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed.

These statements echo those in nineteenth century English cases, where the principle of freedom of testation was enshrined, so that eccentric, immoral or, indeed, indefensible wills were upheld, as not revealing lack of mental capacity.13 This is not to deny that a stage may be reached whereby a will is so completely irrational on its face as to raise a question over capacity.14 By the same token, a will that is prima facie rational in its terms, and thus ostensibly

the product of reason, may speak, albeit not conclusively,15 as to capacity.16 2.3 A second general comment is that the test for mental capacity, discussed below,17 is a legal test, not a medical one. It follows that medical evidence, though in some instances probative as questions of capacity, is not essential or determinative. Non-expert witnesses, including solicitors, whose exposure to the testator is closely contemporaneous with will-making, may prove invaluable to this end.18 Another upshot of the legal nature of the test is that a testator [page 43] who suffers a recognised mental or psychiatric illness is not, for that reason alone, necessarily to be treated as lacking testamentary capacity. A medical test administered by a doctor that discloses impaired mental functioning, whilst hardly to be ignored, is thus not decisive.19 Nor does the fact that a person suffers anxiety or depression, even if untreated, itself affect relevant capacity; indeed, it has been observed that ‘[i]f people suffering from such complaints were unable to make wills, a large percentage of the population would be so inhibited’.20 Even severe mental disorders, including schizophrenia, cannot be said to be conclusive against capacity;21 it is likewise when it comes to delusions.22 Consistent with the above, it is conceivable that a person subject to a guardianship or administration order, or detained in a mental institution under mental health legislation, could make a valid will.23 For example, in Edwards v Edwards24 the testator executed a will that left most of his estate to his daughters. He later became subject to an administration order, and made another will leaving his entire estate to his new wife. As Forrest J was satisfied that the testator possessed the necessary mental capacity, the fact that he was a represented person did not oust this conclusion, reasoning as follows:25 The test laid down by the [guardianship legislation] does not involve the same application of principle as the test for testamentary capacity. An administration order is made at a fixed point of time. Mental illness can wax and wane. Indubitably, at times a represented person may have sufficient soundness of mind to be able to execute a Will with appropriate testamentary capacity, albeit that at an earlier or later point of time such capacity had dissipated. It cannot be thought that Parliament would have intended by [the guardianship legislation] to have removed by a sidewind a fundamental and longstanding method of determining whether a person with a mental

impairment had or had not made a valid Will.

2.4 A final introductory observation is that provision exists for a will to be made for persons lacking testamentary capacity under a statutory will regime.26

Test for mental capacity 2.5 Testamentary capacity requires that the testator have sound mind, memory and understanding. The classic exposition, described in terms of ‘three presences and one absence’,27 appears in the judgment of Cockburn CJ in Banks v Goodfellow:28 It is essential to the exercise of such a power that a testator [1] shall understand the nature of the act and its effects; [2] shall understand the extent of the property of which he is disposing; [3] shall be able to comprehend and appreciate the claims to which he ought to give effect; and, [4] with a [page 44] view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

Australian courts have regularly endorsed this formulation,29 which remains entrenched in English common law.30 Its nub has been explained in terms of a testator’s capacity to remember (the relevant property and those who have claims upon it), reflect (so as to consult on the relative weight of the claims) and reason.31 In each case, though, it is not necessary that the testator have actually remembered, reflected and reasoned; the test targets the capacity to have done so. Moreover, the test does not necessitate that a testator possess these faculties to the highest degree that he or she might formerly have done, provided that they are retained to a sufficient extent.32 Banks v Goodfellow accordingly sets the mental capacity bar ‘fairly low’, partly so as ‘not to deprive elderly persons of the ability to make wills in their declining years’.33 The following discussion conveys an indication of where the line is to be drawn along the resultant capacity continuum. It is structured by reference to the elements propounded by Cockburn CJ in Banks, and serves to highlight the accuracy of the judicial observation that ‘capacity is time and task

specific’.34

Elements of test for mental capacity Understanding of nature and effects of act 2.6 In speaking of the need to ‘understand the nature of the act and its effects’, it is not necessary to show that the testator was capable of understanding each and every clause of the will. It is sufficient to prove that the testator understood he or she was making a will with the [page 45] requisite knowledge and approval.35 Expressed another way, an understanding of engagement in a testamentary act is required.36 Reference to the ‘effects’ of the act, while it encompasses its ‘immediate effect’,37 does not require a testator to have the capacity to understand its collateral consequences. For example, in Simon v Byford38 in an earlier will the testator had left her shares in her deceased husband’s company to one of her children, in order to avoid a potential deadlock should all of the children be given equal shares in the company. In a later will she bequeathed the shares to each of her children equally, ostensibly not considering the reasons that had earlier caused her to give all of the shares to one child. Lewison LJ, with whom McFarlane and Sullivan LJJ concurred, did not consider this to reveal any lack of testamentary capacity, reasoning that the law does not require a testator to understand the significance of assets to others.39 To make understanding or remembering of the extent of others’ property a condition of capacity, his Lordship explained, would illegitimately make capacity a form of ‘memory test’.40 In endorsing Lewison LJ’s remarks, an Australian judge has stressed that ‘[m]aking a will is not an exercise in memorisation, but in disposition’.41

Awareness of the nature, extent and value of the estate 2.7

A testator must be aware in general terms of the nature, extent and value

of the estate over which he or she has a disposing power. It is not necessary to show recollection of each and every item of property he or she possessed; a general knowledge of that property suffices.42 Moreover, longer life expectancies today than at the time the Banks test was formulated may justify a less stringent application of this element, a point that Windeyer J elaborated in a 2004 judgment as follows:43 In dealing with the Banks v Goodfellow test it is … necessary to bear in mind the differences between life in 1870 and life in 1995 [when the testator’s final will was executed]. The average expectation of life for reasonably affluent people in England in 1870 was probably less than 60 years and for others less well off under 50 years: the average life expectation of males in Australia in 1995 was 75 years. Younger people can be expected to have a more accurate understanding of the value of money than older people. Younger people are less likely to suffer memory loss. When there were fewer deaths at advanced age, problems which arise with age, such as dementia, were less common. In England in 1870, if you had property it was likely to be land or bonds or shares in railway companies or government backed enterprises. Investment in ordinary companies was far less common than now. Older people living today may well be aware that they own substantial [page 46] shareholdings or substantial real estate, but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing ‘the extent’ of the estate is considered. This does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset, or even a particular class of assets particularly when shares in private companies are part of the estate. What is required is the bringing of the principle to bear on existing circumstances in modern life.

However, if it is shown that the testator was mistaken as to the extent of the property to a real and substantial extent, this may lead to a finding of mental incapacity.44

Comprehension and appreciation of claims on testator’s bounty 2.8 The expression ‘should be able to comprehend and appreciate the claims to which [the testator] ought to give effect’ requires an awareness of those who might reasonably be thought to have a claim upon his or her testamentary

bounty, the basis for such a claim and the nature of those persons.45 His or her sense of reason must not be prevented through mental illness to ignore these claims. As a corollary, the testator must have the ability to evaluate and discriminate between the respective strength of these claims, and thus determine in which proportions the property should be divided between the claimants.46 Assuming this ability, though, a will is not invalid for incapacity merely because the testator misjudges the conduct or the merits of an object of his or her testamentary bounty.47 2.9 The usual tension here between the principle of freedom of testation and the consequences of a finding of incapacity is illustrated by the division of judicial opinion in Re Estate of Griffith (deceased).48 A testator executed a will in 1966, which left her entire estate to her only child, her son. However, between 1984 and 1989 the testator executed five more wills, all of which excluded the son from benefit. The testator died in 1993, aged 84. The evidence revealed a troubled relationship between the testator and her son, the testator being disappointed both in his religion and profession. Following the death of the testator’s husband, the son lived with the testator between 1969 and 1983, but was forced to leave home on four occasions due to the testator’s conduct. The final such occasion prompted the parties to never speak again. Psychiatric evidence as to the testator’s mental capacity was adduced from both sides, although neither expert had ever met her. Gleeson CJ, with whom Handley JA agreed, upheld the decision of the trial judge, Santow J, that there was a plausible case, not rebutted, that the testator was unable to consider and give effect to her son’s claims upon her bounty. She therefore lacked capacity when executing the 1984–89 wills and accordingly the 1966 will took effect. What influenced his Honour in reaching this conclusion appears as follows:49 The bitter disappointment of Ethel Griffith when her only son went into religious life, their enforced total separation for a number of years when he was in early adulthood, her extreme

[page 47] emotional reaction on the occasions when they were reunited, her bizarre and aggressive behaviour towards him when he returned to live with her, her extraordinary conduct, especially

her nocturnal behaviour, when they were living together, the manifestations of a degree of possessiveness far beyond the normal, the incident which led to their final parting, and her rejection of her son without apparent reason, must be considered in combination. The evidence of [the psychiatrist called by the son] added significant weight to the contention that what was here involved was mental disturbance, and a judgment that could be characterised, not merely as being unfair, but as being the product of mental disorder.

Kirby P, dissenting, gave primacy to the principle of freedom of testation, which he saw as calling for a steadfast resistance to the urge to rewrite wills of testators the courts regard as unfair, unwise or harsh.50 His Honour’s analysis of the evidence suggested a number of considerations supporting an entirely rational disposition in excluding the son: the fact that the son was well placed financially, had walked out of his mother’s life and thereafter had no emotional or loving contact with her, and offered no forgiveness, love or reconciliation.51 Kirby P concluded that the testator was not affected by mental incapacity when the wills were executed, and that she had properly considered her son’s claims but had rationally concluded that he was not deserving of benefit.52 2.10 As the decision in Griffith illustrates, capacity involves not only looking at those persons who might reasonably have a claim on the testator’s bounty, but evaluating the strength of those claims and, if required, discriminating between them. As such, evidence of the relationship between the testator and family, friends and others is crucial in the face of an assertion of mental incapacity. For instance, whereas distant relatives or persons unrelated to the testator are not usually natural objects of a testator’s bounty, there may be a rational reason for testamentary provision in their favour, say, assistance to the testator in later stages of life, or even the testator’s nostalgia.53 Conversely, estrangement may supply a rational reason why someone who would otherwise be a natural object of the testator’s bounty, such as a child or other close relative, may not now be54 (though this may not necessarily preclude a successful family provision claim).55 But even should that decision be driven by prejudice, antipathy or spite, even if unreasonable, it does not, for this reason alone, bespeak of testamentary incapacity. As explained by a Western Australian judge:56 … unfairness, severity or other forms of harshness or disregard by a testator in the making of a provision or in the failure to make provision for a close relative or a person who might be expected to receive some disposition from the estate, does not invalidate a will or establish want of testamentary capacity. There have been many harsh and unreasonable wills made and sons,

[page 48] daughters, wives and others have been excluded from dispositions at the choice of a testator without resulting in invalidity. But the exclusion of a close relative, such as a son or a daughter, from benefit under a will can usually be regarded as a mark of severe disapproval by the testator. Sometimes there may be cause for this, even if not expressed. Even if the cause may be prejudice or pique or some personal whim that an inheritance is socially undesirable, that will not of itself establish want of testamentary capacity. Nevertheless, it may raise a question as to the reasoning, or lack of reasoning, behind such a choice and that may lead on to discovery, from the will itself, or from some other evidence possibly reaching far back in time, that the testator has harboured a long-standing sense of disapproval or prejudice towards the excluded relative. Even that will not be sufficient to establish want of testamentary capacity unless it can be shown that the deceased, because of want of proper understanding however caused, whether because of a mental condition, including a deluded mind, that is, an unreasoning attitude towards the individual, has failed to appreciate and give due consideration to claims which that person may deserve when the testator is determining the distribution of his property.

On the facts before the court, the testatrix’s fixed and unforgiving beliefs and a longstanding disapproval of her daughters were not found to connote ‘delusive thinking, a failure to recognise her daughters as persons deserving of participation in the distribution of her estate after death, or any unsoundness of mind’.57

No delusions (or lucid intervals) 2.11 The fourth element of the Banks v Goodfellow test of mental capacity requires that no delusions58 ‘shall influence his will in disposing of his property and bring about a disposal of it which if the mind had been sound, would not have been made’.59 For this purpose, a ‘delusion’ is defined as ‘a belief, which is not true to fact, which cannot be corrected with the individual’s education and surroundings’ or ‘a fixed and incorrigible false belief which the victim could not be reasoned out of’.60 2.12 Yet apart from delusional beliefs, a testator may lead a perfectly normal and rational life.61 It follows that there is no requirement to identify a general mental illness if a delusion is proved;62 insanity is not the issue, and need not be pleaded in the case of delusions. The ultimate question is whether the testator suffered from a delusion or delusions that had a material effect on the will executed. Delusions are, to this end, only material to the question of testamentary capacity if they are directly connected with the disposition of the will.63 The once

[page 49] held view, that the existence of a delusion was conclusive evidence of incapacity,64 has been discarded,65 although this does not preclude a court faced with the testator subject to delusions viewing the will ‘with great distrust’.66 Nor does it preclude a court, against the backdrop of evidence that the deceased suffered from delusions both before and shortly after executing the will, making the inference that the deceased suffered a delusion at the time of the will.67 If a will is proven to be affected by delusion(s), there is arguably no scope for severance, as between the part affected thereby and other parts, because testamentary capacity is indivisible in that only competent testators can make valid wills.68 2.13 Where a testator is of unsound mind, either through general insanity or by suffering delusions, it may remain possible to show that the will was made in a lucid interval, namely at a time when the testator was temporarily sane or when the delusion had no influence. Fluctuations may, after all, occur in mental illness, particularly when medication is involved. In the leading Australian authority on lucid intervals, Timbury v Coffee,69 the testator was a dipsomaniac whose drinking bouts reduced him to a state of physical exhaustion and mental disturbance, which induced suspicion and distrust of his wife, and delusions about her fidelity. In intervals between these bouts, noted Dixon J, the testator ‘seem[ed] to have been active and intelligent and in most respects to have behaved in a perfectly reasonable manner’.70 He made four wills. The first and third will left his entire estate to his wife, whereas the second and fourth left the wife only a life interest, and the remainder to his sister. The fourth was held invalid, on the ground that, at the time it was made, the testator lacked capacity, but the third was upheld, upon a finding of sound mind, memory and understanding when it was executed. More recently the Victorian Court of Appeal reached the same conclusion in Kantor v Vosahlo,71 where the testator suffered dementia, but there was strong evidence from the lawyer who drafted the will, a long-time friend of the testator, that it was made during a lucid interval. At that time, the testator gave coherent reasons for altering beneficiaries with respect to an earlier will, her choice of new beneficiaries was rational and just, and she had precisely

informed the lawyer as to the extent of the property she possessed.72 The case, as do others,73 highlights the especial value of evidence from persons, especially professionals, closely associated with the testator and his or [page 50] her will-making activity, though in each case the court ‘must judge from the facts they state and not from their opinions’.74 Less weight is accorded to medical evidence offered by experts who have never seen the deceased.75 Indeed, it has been remarked that where an experienced lawyer has prepared a will, and formed the view that the testator has capacity, courts ‘should not too readily overturn that view, particularly on the basis of expert evidence, where the expert did not interact with the testator’.76

Parameters of mental (in)capacity 2.14 In applying the elements of the Banks v Goodfellow formulation, it must be acknowledged that there may be various conditions that, while they may form part of the evidence going to capacity or otherwise, do not of themselves dictate incapacity. First, there is no legal presumption that an alcoholic or drugdependent person lacks capacity to make a will. Evidence may be led to the effect that when the will was executed the testator was under the influence of alcohol or other drugs, but even this does not mean that he or she lacked capacity. If there is admissible evidence that the testator nevertheless possessed the necessary capacity, the will cannot be impugned on this ground.77 Continual alcoholic consumption can, however, lead to delusions78 and chronic alcohol abuse can lead to amnesiac syndrome, a type of dementia.79 Second, old age and associated infirmity do not, by themselves, establish want of capacity,80 and nor does extreme ill health,81 including the onset of dementia,82 although these factors [page 51]

may require the propounder of the will to establish independent evidence of testamentary capacity.83 Third, a testator’s eccentricity, extreme views and caprice do not point to lack of mental capacity.84 Yet a demonstrable delusion about an important and relevant fact or a value judgment ‘so extreme as to defy credibility’ may mean a testator lacks capacity in being unable to consider and give effect to claims upon his or her bounty.85 There is a difference, to the end, between an ‘explicable but mistaken view’ and ‘the kind of morbid aberration or delusion which precludes testamentary capacity’.86 Fourth, the contemplation of suicide does not support a presumption of mental incapacity.87 That a testator commits suicide shortly after making a will is accordingly not, by itself, conclusive against capacity. A South Australian judge has elaborated the point as follows:88 There is no reason arising from the court’s knowledge of human affairs to infer, in the absence of other evidence on the issue, that the psychological distress which leads to suicide necessarily so compromises a person’s reasoning capacity as to deny him or her the capacity to understand the nature and effect of his or her purported disposition of property and the way in which it resolves the competing moral and quasi-legal claims to that property.

While the circumstance that the deceased was contemplating suicide is a factor to be taken into account in an overall inquiry into capacity, his Honour added, on the facts the evidence indicated that in material aspects of life the deceased was rational, and his distress leading to suicide in no way impaired his capacity to rationally consider the provisions he wished to make in disposing his property.89 2.15 At the same time, there is now judicial recognition, necessitated by modern psychiatric medicine’s increased understanding of the human mind, that testamentary capacity may go beyond the Banks inquiry into comprehension and extend, to some degree, to the testator’s decision-making powers. Informed by this concern, Briggs J in Re Key (deceased)90 set aside a will executed by an elderly testator at a time of extreme grief following his wife’s sudden death. His Lordship viewed this degree of bereavement as one of an ever-widening range of circumstances recognised by modern psychiatric medicine as giving rise, distinct from old age and infirmity, to mental disorder sufficient to deprive a person of the power of rational decision-making.91 Similarly, in Re Wilson (deceased)92 the testator’s deep grief at the death of a

sibling was found to have triggered an affective disorder, which, coupled with a continuing fragile mental state arising from advanced age and physical frailty, served to deny capacity. [page 52]

Proof of mental incapacity 2.16 The burden of proof lies with the person(s) who seek to propound the will. In all cases, those persons must establish a prima facie case that the will is valid, namely that it satisfies the formality requirements93 and that the testator possessed the requisite mental capacity.94 In other words, affirmative proof is required that the instrument propounded is the last will of a free and capable testator. 2.17 A presumption of capacity nonetheless arises where the will is rational on its face and duly executed. Evidence to the contrary by those attacking the will reduces the force of the presumption, and (re)shifts the evidentiary burden to its propounder(s), say, by introducing independent evidence of capacity.95 The issue is ultimately determined by reference to the entire admissible evidence to the civil standard of proof, that is, on the balance of probabilities. As to the latter point, the High Court in Worth v Clashom reasoned as follows:96 A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff’s claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.

Although the primacy of freedom of testation dictates that courts are not overly keen to make findings that a testator lacked mental capacity, the question remains one grounded in affirmative satisfaction on the balance of

probabilities. There is no raising of the standard of proof, but ‘a consideration of the evidence as a whole coupled with the application of a degree of caution which is appropriate to each factual issue which is placed under scrutiny, before applying the standard’.97 2.18 Associated with the problem of proof is the question relating to the duty of a lawyer (or other person) who drafts a will for a testator who may or may not possess the requisite testamentary capacity. This matter is the subject of separate treatment.98 [page 53]

Relevant time for satisfaction of test of mental capacity 2.19 The normal rule, and the natural one, is that the testator must possess testamentary capacity at the time of executing the will.99 It may be the case, though, that an intending testator, whilst fully mentally competent, gives instructions to a lawyer or other drafter to prepare a will, but when the will is actually executed the intending testator’s mental condition has so deteriorated that he or she then lacks the requisite capacity. In these circumstances, according to the so-called rule in Parker v Felgate,100 the relevant time for ascertaining capacity is the date the instructions were given. The will is therefore admitted to probate despite the testator’s subsequent mental deterioration. The rule is designed to uphold the principle of freedom of testamentary disposition, in this case in the pragmatic recognition that the testator lacks any further opportunity to express his or her wishes.101 2.20 Yet applying this ‘rule’ requires caution, as it is premised on proof of the testator’s understanding that he or she at some time previously had given instructions for a will, and that he or she was executing a will in accordance with those instructions. The ‘greatest caution and reserve’, it is said, is needed when the testator’s instructions are communicated to the lawyer through a lay intermediary.102 Ultimately, and notwithstanding academic criticism targeting its potential to foster fraud and mistake,103 and attempts to argue that Parker v Felgate was wrongly decided on the ground that it is illogical to conclude that an incapable testator could exhibit the requisite knowledge and approval,104

where its basics are proven, the rule dictates there is no need to establish that the testator understood the provisions of the will or remembered the actual instructions given to the drafter.105 Also, while it is debatable that the rule itself formed part of the ratio of Sir James Hannen’s reasons in Parker v Felgate, its judicial citation and application in the United Kingdom106 and Australia107 on multiple occasions reveals its entrenchment as part of the common law.

Testamentary Intention Need for animus testandi 2.21 Nothing can be admitted to probate108 that a testator did not intend to be a testamentary act;109 there must, in other words, be animus testandi. Thus a document appearing on its face to be a will, and that meets the necessary formalities,110 may nonetheless be refused probate if the [page 54] evidence reveals that the testator lacked the intention to make his or her will. For instance, in the words of Sir J P Wilde in Lister v Smith:111 … if the fact is plainly and conclusively made out, that the paper which appears to be the record of a testamentary act, was in reality the offspring of a jest, or the result of a contrivance to effect some collateral object, and never seriously intended as a disposition of property, it is not reasonable that the Court should turn it into an effective instrument.

Thus wills made in jest have been refused probate,112 as have documents intended to operate inter vivos113 and those signed by the testator in mistake.114 And where, in Re Horner (deceased),115 a testator executed two wills on the same day that differed in the manner of disposal of his property, and there was evidence that this was because the testator had yet to decide which should constitute his last will, neither was accompanied by animus testandi. 2.22 Privileged wills cases feature in this context.116 For example, in In the Estate of Knibbs117 an oral statement by a seaman to a fellow seaman whilst at sea that ‘if anything ever happens to me, Iris will get anything I have got’ was construed as ‘the mere exchange of family gossip, opinions and information

about family matters’, which could not be regarded as a testamentary act. The result may have been different, Wrangham J opined, had the statement been in the following terms: ‘I want my sister, Iris, to be certain to have everything that I possess after my death. Will you please see to it, and tell the captain? Please make sure that that is all right’. More generally, his Lordship remarked that:118 … in order to be a testamentary act there must be a statement of the deceased’s wishes for the disposition of his property after his death which is not merely imparted to his audience as a matter of information or interest, but is intended by him to convey to that audience a request, explicit or implicit, to see that his wishes are acted on.

His Lordship also made clear,119 as have others,120 that a testamentary act need not be made under a document that is apparently a will.121 Provided that the document is executed and its propounder intended the disposition to take effect on death, the document may be admitted to probate.

Conditional intention 2.23 A will may be expressed to take effect only upon the happening of a condition or contingency, usually a specified event. If that condition fails, the document is not admitted to probate.122 However, succession law distinguishes wills that are truly conditional from those where the contemplated event is merely the motive that explains why the will was actually [page 55] made. In the latter situation, the will is not conditional, and can be admitted to probate. As stated by Sir F H Jeune P in In the Goods of Spratt:123 If the will is clearly expressed to take effect only on the happening, or not happening, of any event, cadit quæstio,124 it is conditional. If the testator says, in effect — that he is led to make his will by reason of the uncertainty of life in general, or for some special reason, cadit quæstio, it is not conditional. But if it be not clear whether the words used import a reason for making a will or impress a conditional character on it, the whole language of the document, and also the surrounding circumstances, must be considered.

Consistent with the foregoing, the mere possibility that at the time a will was executed the testator may have contemplated or even intended that at some future time a need to revise or alter the will via a subsequent will (or

codicil) is not inconsistent with the first will being valid.125 To conclude otherwise would imperil the very ambulatory nature of a will,126 and overlook ‘an inevitable and commonplace eventuality that people change their wills at intervals during their lifetimes because of changing circumstances’.127 2.24 Sometimes the testator’s words, when dealing with a condition, are unambiguous. In In the Goods of Hugo,128 for instance, a married couple about to embark on a railway journey soon after a railway accident executed a joint will ‘in case we should be carried out of this world at one and the same time, and by one and the same accident’. Sir James Hannen P construed the will to rest on a contingency that did not eventuate and thus inoperative. Where instead the words chosen evince ambiguity, extrinsic evidence of the attendant circumstances, taken in their context, is admissible in construing them.129 For example, in Re Govier (deceased)130 a husband and wife made a joint will containing the phrase ‘in the event of our two deaths we hereby appoint an executor’. Certain bequests followed, but the will did not refer to the possibility of one spouse surviving the other, and made no provision for the survivor. Extrinsic evidence was admitted to show that, at the time of its execution, the husband and wife were residing in a part of the country subject to severe enemy bombings, and feared being killed together by the same bomb. That evidence, together with the actual terms of the will, led Willmer J to conclude that the will was truly conditional and, the condition not having been fulfilled, inoperative. Other judges, conversely, have held that, despite the ambiguity in language, the will was not conditional and thus entitled to probate. Sir F H Jeune P reviewed the English authorities in In the Goods of Spratt,131 where a privileged will was upheld as not being conditional, despite its execution by a soldier on wartime duty. There are similar authorities in Australian law. In In the Will of Wilson132 the words used by the testator — ‘I sign the rough draft of my will as a temporary will on the eve of my leaving the colony, but to take effect as my will in the event of my death’ — were found by Hood J not to indicate a temporary or conditional will, and probate was granted. Similarly, in Re Bathern133 Angas Parsons J held that the words ‘in case of my present sickness proving fatal’ were not conditional, being expressive of the testator’s feeling the necessity to make a will rather than evincing a desire to limit its operation.

[page 56] 2.25 In this vein, courts ordinarily require clear evidence that a will is truly contingent, so as not to deny probate to what is otherwise a valid final expression of the testator’s testamentary wishes. The case law, to this end, reveals curial reluctance to deny probate to a conditional document, particularly when it otherwise appears to embody testamentary intentions.134 To deny probate, the condition must be expressed in language sufficiently clear and unambiguous to nullify the testamentary dispositions if it is not fulfilled.135 2.26 A final observation on conditional wills is that, in the usual case, the condition is expressed to be subsequent; that is, the will is expressed to take effect when it is executed, but ceases to have effect upon the stipulated event not taking place. A condition precedent in this context may pose a problem, given that a will must be intended to have operative effect — that is, there must be animus testandi — at the moment of its execution. A person cannot therefore be heard to say that the operation of an ostensibly unconditional will is subject to the occurrence of some future event. So in Corbett v Newey,136 where the testator signed but omitted to date his will, mistakenly believing that this precluded its effectiveness, because he intended that its operation be suspended until certain inter vivos transactions were completed, the English Court of Appeal found a lack of the requisite animus testandi. As explained by Waite LJ:137 A will … subjects the assets of the testator, from the moment of its execution, to a series of dispositions which, unless revoked, will operate at his death. It is true that those dispositions will remain inchoate until his death, but they operate immediately as ambulatory provisions varying in range or subject matter according as the assets in the ownership of the testator during his lifetime may change in nature, value or extent. Since a will operates from the moment of execution, it necessarily follows that to possess the necessary animus testandi the testator must intend that this dispositive (though revocable and ambulatory) regime will be called into play immediately and not postponed to, or made dependent upon, some future event or condition. That is why, surprising though the distinction may at first sight be to a layman, it is possible to have a will which is on its face conditional, and yet impossible to have a will which though unconditional on its face purports, through some direction imposed externally by the testator at the time of its execution, to be made conditional in its operation.

The outcome would have been different had the testator’s will made explicit mention of the condition. Morritt LJ, to this end, found ‘no authority to

support the view that a will may be made conditional otherwise than in accordance with the conditions expressed in it’.138 Accordingly, the validity of a conditional will is premised on the condition being inserted into the will itself and the will expressly stating that it is so conditional. This is the case whether the condition is subsequent, as is normal, or precedent.

Knowledge and Approval 2.27 Assuming that a testator possesses both the requisite mental capacity and animus testandi, the ensuing inquiry is whether the testator knew and approved the contents of his or her will.139 Inquiry into knowledge and approval capacity is independent of that into capacity; [page 57] hence a testator with capacity may nonetheless be found not to have known and approved the contents of the will.140 That testators must know and approve the contents of their will has been described as ‘not an arduous requirement’, namely that they ‘actually know the substantive content of their will, and approve of that content’.141 There is no need to prove understanding of the legal terminology employed by its drafter. What suffices is that the testator knows that the document in question is his or her will and correctly assumes how it deals with his or her property; if so, the assent that comes with execution establishes the requisite approval of its contents.142 This remains so even if the testator had not read the actual document, or had been told precisely what was in it, at least if he or she had given instructions for a will to be prepared in those terms.143 2.28 Those propounding the will carry the burden to prove that the testator knew and approved its contents. In this regard, though, the law has traditionally adopted a presumption of knowledge and approval arising on proof that a testator with testamentary capacity duly executed the will (absent suspicious circumstances),144 sometimes termed the presumption omnia rite esse acta.145 Although some judges have queried the value of a presumption in this

context,146 this has not swayed the law. The presumption, where it arises, serves to shift the burden to those impeaching the will to adduce evidence directed to displacing it. The evidential burden then (re)shifts to the propounders of the will to give affirmative proof of knowledge and approval.147 A form of affirmative proof, to this end, is to establish that the will was read over by, or to, the testator when it was executed. At one time, evidence of this kind was, in the absence of fraud ‘purposely practised on the testator in obtaining his execution thereof’, assumed to be ‘conclusive evidence that he approved as well as knew the contents thereof’.148 But almost immediately the inflexibility of such a ‘rule’ was criticised,149 and thus, while the facts underscoring the rule will [page 58] often substantiate evidence of knowledge and approval in a testator — indeed, though criticising the rule, one judge saw those facts as giving rise to a ‘very grave and strong presumption’ of knowledge and approval150 — these should not be seen as necessarily conclusive. It follows that even if the testator is shown to have read over the will, other evidence, to be given full weight, can be accepted that he or she did not in fact know and approve the contents.151

Suspicious Circumstances 2.29 The presumption relating to knowledge and approval arising from a capable testator’s execution of a will152 does not apply if the circumstances surrounding its execution combine to excite the court’s suspicion.153 While suspicion here not infrequently stems from a third party’s (alleged) wrongdoing, this is not essential; it is ‘simply a question of circumstances giving rise to a suspicion that the testator may not have known of and approved the contents of his will’.154 If suspicious circumstances exist, probate cannot be granted unless the suspicion is removed, by affirmative proof of the testator’s knowledge and approval.155 To this end, the effect of the suspicious

circumstances doctrine is, it is said, ‘relatively narrow’; it does not apply ‘at large’, it being essential to ‘identify the presumption to which particular circumstances are said to be relevant’.156

Will prepared by beneficiary or associate 2.30 It has been observed that ‘[t]he circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the court of the evidence as to the testator’s appreciation and approval of the contents of the will’.157 Indeed, this scenario is arguably the most common instance of suspicious circumstances. The degree of suspicion varies with the circumstances of the case. [page 59] In some instances it may be slight and easily dispelled, but in others, and especially where the drafter of the will is a lawyer and thus acting in a fiduciary capacity,158 it can be difficult to quell.159 This reflects the broader notion, not confined to wills prepared by beneficiaries or their associates, that the degree of ‘suspicion’ is ‘infinitely variable and the burden of dispelling it might be heavy or slight, depending on the degree of suspicion arising in the first place’.160 In Able Australia Services v Yammas,161 for example, the will was clearly signed in suspicious circumstances: it was prepared by the defendant executor (Y) who was to receive a substantial benefit thereunder; the deceased was of advanced age (95 years old) and suffered health problems in the weeks leading up to its execution; it was signed in a period between the deceased’s hospitalisation and her admission to respite care; the deceased signed it at a pharmacy other than her own; and Y had no recollection of observing the deceased read it or of reading its contents to her. Despite these suspicious circumstances, Hargrave J was satisfied that, taking the evidence as a whole and subjecting it to the vigilant examination required, Y had discharged the onus

upon him. What influenced his Honour was a combination of findings, including the following:162 • Y was the only constant executor nominated by the deceased in all the testamentary documents signed by her that were in evidence, and so the deceased obviously placed significant and ongoing trust in Y; • there was abundant evidence of a close friendship between the deceased and Y; • Y’s evidence was not seriously challenged; and • the preponderance of the evidence demonstrated that the deceased was an intelligent, careful and feisty woman who retained her mental faculties until just before she died, nearly a year after the will was executed. Also potentially relevant is the size of the benefit conferred upon the drafter and its proportion to the estate as a whole. In Re Proud,163 for example, where an estate of modest value had been left to the drafter and the only other person who may have had a claim did not contest the will, the suspicions were dispelled. So too in Nock v Austin,164 in the face of evidence that the will had been read to the testator by the drafter followed by a personal reading of the will by the testator who expressly approved its contents. The relative position of the drafter to the testator, in particular whether the latter is inclined to place great trust in the former, and also whether or not the testator received independent advice concerning the will, may likewise assume potential relevance.165 [page 60] 2.31 The above principle extends to where the benefit goes not directly to the drafter but to a person or body with whom the drafter is associated.166 In In the Will of Walsh (deceased) ,167 for example, gifts to charities in which the drafter was intimately involved raised suspicious circumstances, and in Thomas v Jones168 suspicious circumstances surfaced where a will drafted by a solicitor benefited the solicitor’s daughter. A more modern example of such indirect benefits is found in McKinnon v Voigt.169 There the deceased had apparently executed a will some 3 or 4 days

preceding his death. It had been written on a single piece of notepaper, allegedly on the deceased’s instructions, by a son of the sole beneficiary, and witnessed by the son and his sister. The Victorian Court of Appeal saw the evidence supporting the will, being the uncorroborated evidence of its two interested witnesses, as insufficient to dispel the suspicions surrounding it. Apart from the propounders’ obvious interest, the court took into account the nature and terms of the alleged will, the deceased’s proximate death, and their failure to produce the document for some 3 months, knowing that a relative of the deceased had taken out a grant of administration. Tadgell JA, with whom Phillips JA agreed, remarked that ‘when a reckoning is made of the suspicions generated in this case by the circumstances in combination, the reservations about the will are … overwhelming’.170

Other suspicious circumstances 2.32 Circumstances other than the preparation of a will by a beneficiary (or associate) may also excite the court’s suspicion. It is important to note, to this end, that ‘grounds of suspicion are only relevantly aroused if they would have a bearing upon the issue raised in a specific ground of objection’.171 It is in the context of suspicion alleged to stem from forbearance or delay in producing the will, whether by itself or combined with other circumstances, that this assumes especial pertinence. This is because inquiry into suspicious circumstances relates directly to knowledge and approval, which targets the circumstances surrounding the execution of the will. There is logic in concluding, therefore, that evidence of events occurring thereafter is not relevant to raising the suspicion. As explained by a Queensland judge:172 … it is consistent with the decisions in this country to hold that, except perhaps where the will is retained by someone who participated in its preparation or execution, or who benefits under it, a circumstance must, to be accounted ‘suspicious’, be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator’s death. What happens

[page 61] after a person’s death is not readily capable of throwing light on the question whether he or she knew of and approved the contents of a document executed during his or her lifetime. Indeed, to

adopt a contrary approach would be to leave the efficacy of a will to the mercy of acts or omissions, possibly deliberate, of the person to whom the will was entrusted and over whom the testator necessarily has no control after his death.

It followed, on the facts in question, that the fact that an attesting witness did not disclose the will for some 7 weeks after becoming aware of the deceased’s death was not a circumstance raising a suspicion that the deceased did not know or approve its contents. Yet the leading English authority to this effect involved a delay of 16 years pleaded as the sole ground of suspicion, in which event one can well understand a court’s reticence to admit evidence of this kind.173 And as countenanced in the above quote, there is an indication in the case law that the secret retention of an alleged will by the person who prepared it is not precluded from being admitted as evidence of suspicious circumstances.174 A New South Wales judge has gone further, albeit in dicta, by suggesting that, although a suspicious circumstance must have a connection with the bringing into existence of the will, ‘there is no reason why such a connection must necessarily be temporal’, given that ‘a revealing light may sometimes be cast backwards by later events’.175 2.33 Giving support to such a view, at least in instances where the delay is one of the factors going to suspicious circumstances, is the Victorian Court of Appeal’s decision in McKinnon v Voigt,176 discussed earlier. The facts revealed an unexplained withholding of the will for 3 months following the testator’s death, whilst its propounder knew that a relative of the testator had been granted administration of the estate. Tadgell JA, with whom Phillips JA agreed, took this into account as a factor relevant in exciting the court’s suspicions. The case does not support the wholesale admission of subsequent evidence, but does support its admissibility in circumstances where that evidence bolsters contemporaneous evidence raising a suspicion. The third judge, Ormiston JA, favoured a closer connection but in this sense differed only in degree, opining that:177 … if the failure of the propounders … to disclose the will were not otherwise connected with some other suspicious circumstance relating to its execution, the non-production for some seven weeks or so after the death of the deceased would not be such as to alter the onus of proof so as to call upon the propounders to explain those circumstances. Where, however, that delay has been properly ascribed to a person who directly or indirectly takes a benefit or who may be expected to benefit significantly from a disposition under the alleged will, there the factor of delay may also be called in aid as adding to the suspicious circumstances already engendered and thus require more emphatically that the element of suspicion should be clearly and distinctly repelled before probate

or letters of administration might be granted.

Yet it may ultimately be that, at least in Victoria, McKinnon v Voigt opens the door only slightly. A month later, where the issue rose again before the same court, Tagdell JA, speaking for the court, reiterated the basic principle that suspicious circumstances that attract the operation of the rule are limited to ‘those which somehow bear upon the question whether the testator knew and approved of the contents of the will’, and that ‘circumstances not existing at the time of execution … would be unlikely to do that’.178 His Honour cited, inter alia, the above remarks of Ormiston JA in support of this proposition. 2.34 Apart from the issue of delay, other circumstances figure prominently in allegations of suspicion, and can thus attract the onus to dispel. If the testator is illiterate, enfeebled or blind, for example, the court may not grant probate without affirmative proof of knowledge and approval. The latter may involve showing that the testator had the will read to him or her, [page 62] or that he or she in fact read the will, but in each case must be such as to establish that the testator both heard and understood what was read.179 Another circumstance likely to give rise to suspicion is a radical change in the testamentary dispositions, especially where these are long adhered to, and the person(s) who benefit are positioned to influence the testator.180 At the same time, a mere change of mind when it comes to testamentary dispositions is not ordinarily suspicious;181 after all, freedom of testation dictates that testators are entitled to alter their wills as they deem fit. Something more is needed. 2.35 If suspicious circumstances are raised, and not dispelled, and if forgery of the will is also alleged, it does not appear necessary to establish proof of forgery.182 This is because the undispelled suspicion that the will does not express the testator’s mind is sufficient to deter the court from pronouncing in favour of it.183 Any such further inquiry is arguably superfluous.184

Proof relating to suspicious circumstances

2.36 In 1875 Lord Hatherley in Fulton v Andrew185 referred to a ‘farther onus’ lying upon those who take for their own benefit, after having been instrumental in preparing or obtaining a will, namely ‘the onus of shewing the righteousness of the transaction’. Though couched specifically in the context of persons who prepare the will in question, the reference to the ‘righteousness’ of the transaction has been applied more generally in curial inquiries as to whether or not suspicious circumstances have been dispelled. But it arguably adds no more than a gloss to the relevant onus to dispel the suspicion to the satisfaction of the court if the will is to be admitted to probate. It casts no additional burden on the propounder.186 Indeed, an English judge has branded ‘the righteousness of the transaction’ an ‘unfortunate term’, one that wrongly suggests that some moral judgment by the court is required.187 In the same case another judge, in the same vein, remarked:188 It is important to appreciate that Lord Hatherley’s phrase — redolent of morality as it now seems to be — is not to be taken by the court as a licence to refuse probate to a document of which it disapproves, whether that disapproval stems from the circumstances in which the document was

[page 63] executed as a will or whether it stems from the contents of the document. The question is not whether the court approves of the circumstances in which the document was executed or of its contents. The question is whether the court is satisfied that the contents do truly represent the testator’s testamentary intentions.

2.37 The standard of proof in the case of suspicious circumstances, as in probate suits generally, remains on the balance of probabilities, upon a vigilant and jealous examination of the evidence as a whole.189

Severance 2.38 If suspicious circumstances affect only part of the will, and are not dispelled, any benefit thereunder will be lost. But if the remaining parts of the will clearly had knowledge and approval of the testator, these may be admitted to probate. The court can, in other words, omit the affected part, leaving the

remainder valid,190 although in practice the occasions where this may be so will likely be rare.191

Undue Influence Need for coercion 2.39 In probate law, undue influence simply means illegitimate coercion. It must be shown that the testator is actually coerced into making (part of) a will that she or he does not wish to make. Only actual coercion serves to invalidate a will. Coercion differs from persuasion, influence or, indeed, importunity — after all, a testator is ordinarily free to accept or reject persuasion — unless it prevents the testator from exercising a free will.192 The distinction is exemplified in the classic exposition of the legal test, repeatedly endorsed by Australian judges,193 offered by Sir James Hannen P in his direction to the jury in Wingrove v Wingrove:194 We are all familiar with the use of the word ‘influence’; we say that one person has an unbounded influence over another, and we speak of evil influences and good influences, but it is not because one person has unbounded influence over another that therefore when exercised, even though it may be very bad indeed, it is undue influence in the legal sense of the word. To give you some illustrations of what I mean, a young man may be caught in the toils of a harlot, who makes use of her influence to induce him to make a will in her favour, to the exclusion of his relatives. It is unfortunately quite natural that a man so entangled should yield to that influence and confer

[page 64] large bounties on the person with whom he has been brought into such relation; yet the law does not attempt to guard against those contingencies. A man may be the companion of another, and may encourage him in evil courses, and so obtain what is called an undue influence over him, and the consequence may be a will made in his favour. But that again, shocking as it is, perhaps even worse than the other, will not amount to undue influence. To be undue influence in the eye of the law there must be — to sum it up in a word — coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence. The

coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything. This would equally be coercion, though not actual violence.

It follows that, in the words of Sir J P Wilde nearly two decades earlier, ‘persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like … are all legitimate, and may be fairly pressed on a testator’.195 But, in line with the above direction, it need not be shown that actual violence has been used or even threatened. A weak or enfeebled testator may be coerced by constant importunity and so fatigued as to succumb to the constant pressure for the sake of peace of mind, and this too is undue influence.196 Accordingly, the degree and nature of pressure that may invalidate the will-making process varies according to the vulnerability and susceptibility of an individual testator.197

Distinguished from undue influence in equity 2.40 The concept of undue influence in probate law derived from the common law, as the validity of wills was (and remains) a matter of probate. The probate jurisdiction stemmed from the ecclesiastical jurisdiction exercised by church courts in England198 and its exercise retains inklings of the inquisitorial tradition of those courts.199 Equity likewise developed an undue influence doctrine, within a jurisdiction exercised by the Lord Chancellor. That the doctrines share a name and some similarities does not mean they should be confused. In particular, in equity the description of influence as ‘undue’ targets the impairment of judgment of the weaker party ahead of any improper conduct by the stronger party; influence in equity can therefore [page 65] be ‘undue’ even where it is unaccompanied by coercion, pressure or concealment.200 Moreover, equity recognises various relationships that raise a

presumption of undue influence as a matter of law, as well as occasions where that presumption can be raised on the facts,201 which in turn impact on matters of onus. Neither aspect translates to probate undue influence.202 In any case, equitable undue influence applies only to inter vivos dispositions; its probate namesake targets, for obvious reasons, only (purported) testamentary dispositions. 2.41 Various reasons have been proffered for the rejection of presumed undue influence in probate law,203 but the most compelling is that persons with the closest influence over a testator are those for whom, in perhaps the bulk of cases, it would be natural for a testator to make testamentary provision. So ‘the mere fact that we leave our possessions to someone in who we have trust and confidence calls for no explanation’.204 Also, in an inter vivos transaction, independent advice for each party may be obtained, and each party may be available to explain the circumstances surrounding it. In the probate context, a beneficiary may well not know that he or she takes a gift until the testator’s death. It would thus be unfair to raise a presumption of undue influence in those circumstances, as neither the beneficiary, nor indeed the testator, would be able to explain the actual circumstances of the benefit.

Proof of undue influence 2.42 The onus of proof in undue influence cases rests upon the person who alleges it. The reason for this has been explained in terms that an allegation of undue influence ‘concedes capacity and formal execution, and offers new matter to prevent these conceded facts from having their normal legal effect’.205 So far as the standard of proof is concerned, Lord Cranworth LC’s statement in Boyse v Rossborough206 — that ‘in order to set aside a will of a person of sound mind it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of it having been obtained by undue influence’, but that it must be shown that ‘they are inconsistent with a contrary hypothesis’ — has proven influential. So if, say, the evidence is purely circumstantial — indeed, direct evidence of the application of influence is uncommon in that ‘[i]t is of the nature of undue influence that it goes on when no-one is looking’207 — it is insufficient to show that the alleged influencer had the power to oversee the testator’s will; it must be

shown that this power was exercised and the will (or the part of the will sought to be impugned) was the result.208 Of course, where reliance is placed on [page 66] direct evidence, the matter is different and the sole question is whether the testator’s will was overborne to the requisite degree by conduct proven in that evidence.209 2.43 Not all have found the Boyse principle compelling. Vickery J in Nicholson v Knaggs210 interpreted it as being more stringent than not only the civil standard of proof, but also the criminal standard. His Honour saw it as ‘imposing a significant constriction on the capacity of the principle to provide an effective remedy in cases where testamentary undue influence may arise’,211 and proposed the following reformulation:212 The test to be applied may be simply stated: in cases where testamentary undue influence is alleged and where the Court is called upon to draw an inference from circumstantial evidence in favour of what is alleged, in order to be satisfied that the allegation has been made out, the Court must be satisfied that the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence on the question has been evaluated as a whole.

These remarks await further authority. The strict approach, whether relating to its focus on coercion or the standard to which it must be established,213 has been justified by reference to testamentary dispositions having no detriment to the testator, evidential difficulties on the propounder of the will (after all, the testator is not available to give evidence), the once social acceptability of lobbying testators for bounty,214 and the existence of statutory family provision regimes.215 Yet the observation by a practitioner (now judge) in 1992 as to the absence of any instance of an allegation of undue influence succeeding in a probate suit for at least 50 years216 suggests that the parameters of the probate doctrine may well be too unyielding. While there are subsequent occasions in the case law where claims of testamentary undue influence have succeeded,217 these occasions remain rare given the hurdles to proving undue influence in practice.218 [page 67]

2.44 It is thus unsurprising to find the issue being ventilated before law reform commissions.219 There is also academic commentary questioning the orthodox model, the main concern being a failure of the existing law to sufficiently protect the elderly and vulnerable in society.220 There is no agreement, however, between commentators on how the law should be modified. One suggestion is to make statutory provision for independent execution of wills (that is, in the presence of solicitors who have no interest) and to raise a presumption of undue influence vis-à-vis beneficiaries who have been ‘instrumental’ in preparing the will.221 Another is to incorporate equitable undue influence into probate law,222 or at least in a limited form,223 whether or not supplemented by a statutory regime.224 2.45 In New Zealand, scope appears, albeit not explicitly, for a more lenient treatment of objectors who allege testamentary undue influence. In Carey v Norton225 the testator, less than a month before her death at age 81, executed a will that divided her estate into eight equal shares between the children of her six siblings, her half-sister and her niece. This departed from an earlier will, in which her estate was effectively divided between her half-sister and the niece. The evidence showed that the testator looked to two of her brothers for advice throughout her life, particularly in relation to monetary matters, and that she had special affection for her half-sister. The Court of Appeal upheld the trial judge’s decision that the will was a product of undue influence exercised by the brothers.226 It found that influence arising out of a relationship of confidence can be ‘undue’ even if unaccompanied by malign intent. ‘Undue’ related to impairment of judgment rather than to improper conduct by the influencer. Whilst the brothers acted with rectitude, they effectively advised the testator how to make the will in ‘fairness’ to the family as a whole. The influence was thus ‘benign’ and arose from [page 68] the testator’s passivity and deference to her brothers’ advice, coupled with their lack of insight into the effect of their proposal and their failure to offer

alternatives. The court also took into account the testator’s age and state of health, the absence of independent advice and the inconsistency with the testator’s earlier fixed intentions as to her estate. The circumstances in this case may well have been unusual, but the facts nonetheless revealed an absence of coercion in the accepted sense of the word. If the views of Vickery J in Nicholson v Knaggs, mentioned above, and his Honour’s further observation, that ‘the influence need not be intentionally exercised by any particular person or persons for the purpose of overbearing the free and independent will of the testator’,227 represent the developing trajectory of judicial opinion, this may herald some (limited) convergence between common law and equitable concepts of undue influence. It may, to this end, give credence to the view that parameters of undue influence should rest more on the relevant behaviour and its effect than on whether it involves an inter vivos as opposed to a testamentary disposition.228 2.46 Even without this development, it should not be assumed that evidence of undue influence, should it prove insufficient to substantiate that influence in the probate context, is necessarily irrelevant to one or more other elements going to the testator’s mental state. Some Australian judges surmise that evidence tending to undue influence may be used to establish a suspicion that a testator did not know or approve of the document in question.229 But this does not mean that undue influence is to be subsumed into suspicious circumstances; it is a separate issue230 that, where relevant, must be specifically pleaded.

Consequence of finding of undue influence 2.47 If it is proven that the testator’s entire will was the product of undue influence, the will is invalid and cannot be admitted to probate. If only part of the will is affected, that part only may be excluded.231 The usual case of undue influence is where an ultimate beneficiary under a will uses coercion to secure that benefit in his or her favour. There may be circumstances, though, where a beneficiary under an existing will exercises undue influence to prevent the testator from altering that will, or making a new will. A potential beneficiary is thereby deprived of benefit. What limited

authority there is suggests that a court will, in this event, impose a trust on the original beneficiary in favour of the potential beneficiary.232 [page 69]

Fraud 2.48 Proof of fraud — the onus being on those who allege fraud to establish its presence on the balance of probabilities233 — is an insurmountable impediment to the grant of probate of the ensuing will.234 Fraud essentially vitiates a testator’s knowledge and approval, where it has induced him or her to make a will in a particular manner.235 But fraud is distinct from testamentary undue influence, and older cases that tend to conflate the two236 should be viewed with suspicion. Coercion is the key element in undue influence cases, whereas fraud sufficient to invalidate a testamentary instrument is concerned with misleading or deceptive conduct.237

False allegations of relationships 2.49 A testator misled by a false representation as to the nature of the relationship between himself or herself and the beneficiary, which induces him or her to make a will in favour of that beneficiary, is a victim of fraud. It was judicially observed long ago, to this end, that ‘[w]herever a legacy is given to a person under a particular character, which he has falsely assumed, and which alone can be supposed the motive of the bounty, the law will not permit to avail himself of it’.238 However, if the testator is imposed upon not by the beneficiary but by a third person, the inference that the testator would not have made the gift will not so readily be drawn. The same judge explained the point as follows:239 I desire to be understood not to determine, that, where from circumstances not moving from the legatee himself the description is inapplicable, as where a person is supposed to be a child of the testator, and from motives of love and affection to that child, supposing it his own, he has given a legacy to it, and it afterwards turns out, that he was imposed upon, and the child was not his own, I am not disposed by any means to determine, that the provision for that child should totally fail; for circumstances of personal affection to the child might mix with it; and which might entitle

him; though he might not fill that character, in which the legacy is given.

2.50 In each case, it must clearly be established that the fraudulent assertions had a direct effect on the making of the will in question. For example, in Re Kelly240 the testator left a will in which he gave legacies to his two grandchildren. The testator’s son had married a widow, whose two children were introduced to the testator as children of the marriage between the son and widow. That the testator laboured under this misapprehension did not upset the will, ruled [page 70] Angas Parsons J, as there was no evidence that the legacies to the children were induced by the fraud.241 The scenario can be contrasted with that in Wilkinson v Joughin,242 where one Adelaide Ward represented herself to the testator as being a widow when in fact her first husband was alive. The testator, believing her to be a widow, went through the form of marriage with her. A legacy ‘to my wife Adelaide’ was held void on the ground of Adelaide’s fraud. A legacy to ‘my stepdaughter Sarah Ward’ was, though, upheld because the testator knew the infant and intended to benefit her personally.

False allegations of character and conduct 2.51 Fraud can also vitiate if a testator is misled by a false allegation concerning a person’s character or conduct — usually about one of the natural objects of the testator’s bounty — that induces the testator to revoke a gift made to that person in an existing will. It has been judicially observed that ‘[t]here cannot be a stronger instance of fraud than a false representation respecting the character of an individual to a weak old man, for the purpose of inducing him to revoke a bequest made in favour of the person so calumniated’.243 There is little in the way of case law, though, in this regard. An illustration is the 1775 decision in Butterfield v Scawen244 where the fraud consisted in a false representation made to the testator, that a woman, who was the principal legatee, had attempted to poison him, in consequence of which the testator

revoked the bequest in her favour. Sir Herbert Jenner Fust expressed himself as follows: If it should appear, as in the case stated by your Lordships, that an old and infirm testator who had bequeathed a legacy to AB, had been induced by false and fraudulent representations with reference to the conduct of AB, made to him for the purpose by CD, to make a subsequent codicil revoking that bequest, and substituting for it a much smaller legacy, the effect of which would be to give a larger share of the residue to CD than he otherwise would take, I conceive that the Ecclesiastical Court would not, under such circumstances, grant probate of such revoking codicil, provided it should be clearly established in point of evidence that such act and intention were produced by such false and fraudulent representations.

Some 80 years later in Boyse v Rossborough245 Lord Cranworth LC countenanced a case of a wife who ‘by falsehood raises prejudices in the mind of her husband against those who would be the natural objects of his bounty, and by contrivance keeps him from intercourse with his relatives, to the end that these impressions which she knows he had thus formed to their disadvantage may never be removed’. Such a ‘contrivance’, his Lordship opined, could be equivalent to positive fraud, so as to render invalid any will executed under false impressions thus kept alive. Yet on the facts before the House of Lords, there was no evidence of the wife actually making the alleged false allegations. It seems, in any case, that establishing fraud (or, for that matter, undue influence) in a case of this kind would hardly be straightforward.

Forgery 2.52 Forgery is a form of fraud. Most cases have involved allegations of forgery of the signatures of the testator and/or the attesting witnesses, in which case invariably evidence of handwriting experts or document examiners is introduced.246 As these experts are not witnesses of primary fact, their opinion must be adjudged against other admissible evidence in the case, which can [page 71] prevail over the expert testimony. In Lynch v Michael,247 for example, the expert evidence was to the effect that the signature purportedly of the testator was not

hers, but unimpeachable evidence of three witnesses as to execution, and doubts about the exemplars, led Bryson J to conclude that the signature was genuine, and so the will was admitted to probate.

Other cases of fraud 2.53 Fraud can take many forms. It is not limited to the instances mentioned above, but can embrace a wide category of conduct affecting testamentary dispositions. The allegation may, for instance, be that a will was fabricated by another248 or otherwise that the conduct of its beneficiaries amounted to fraud. Lord Cairns LC in Fulton v Andrew offered the following illustration:249 If your Lordships find a case in which persons who are strangers to the testator, who have no claim upon his bounty, have themselves prepared, for their own benefit, a will disposing in their favour of a large portion of the property of the testator; and if you submit that case to a jury, it may well be that the jury may consider that there was a want, on the part of those who propounded the will, of the execution of the duty which lay upon them, to bring home to the mind of the testator the effect of his testamentary act; and that that failure in performing the duty which lay upon them, amounted to a greater or less degree of fraud on their part.

A modern case illustration is found in Robertson v Smith.250 The testator died by poisoning. The beneficiaries of his estate, the main asset being the proceeds of a life insurance policy, were the propounder of the will and his wife (R). The testator made the will shortly after taking out the policy, and died 10 months later. R was convicted of the testator’s murder. The evidence revealed that R had arranged for the testator to take out the policy, had paid the premiums with borrowed money and had sent the testator to her own solicitors to draft the will. R was found in possession of a copy of the will at the hospital where the testator lay dying. R did not give evidence at her trial and the solicitors failed to say who gave instructions for the will. The relevance of the latter led Tadgell JA, with whom Phillips and Kenny JJA concurred, to make inferences as to what triggered the testator to make the will:251 T]he failure of the [R’s] solicitors to give all evidence that may be reasonably presumed to have been available about the circumstances leading to the drawing up of the will allows the inference that they had no evidence to give about it that was likely to be favourable to [R]. In particular, it can be reasonably inferred that no-one in the firm was able or prepared to give evidence that the testator gave instructions for the will. By itself, that is inconclusive: it is no proof either that the testator did not or that [R] did give the instructions. The next thing, however, is that no-one

within the firm was able or prepared to swear that he or she had no knowledge of the receipt of instructions for the will, or of their source or content. For myself, I should not be prepared to assume without evidence, having regard to the exceptional circumstances, that no-one within the firm had no recollection of the receipt of instructions for the will. There having been no evidence that no-one had any such recollection, it is but a short step to an inference that evidence of the receipt of instructions may have been withheld.

His Honour added that it was open to the trial judge to draw the inference that there was a nexus between the policy and the will, established through R. Accepting that the policy and the will were procured by R’s design and that the testator’s death followed, also by R’s design, Tadgell JA did not consider it ‘speculative to link the three elements’.252 Accordingly, the evidence established that the testator had been ‘circumvented by fraud’ — his Honour stating [page 72] that ‘[i]t is fairly to be inferred that the testator, had he been aware of [R’s] scheme, would not have made the will’ — and thus the court ruled the will invalid, and refused probate.253

Severance 2.54 If only a part of a will is induced by fraud, it is possible to exclude that part from probate, leaving the remainder intact. Indeed, the reported cases often involved allegations of fraud with respect to specific gifts. If the allegation is proven, the sections of the will affected by fraud may be severed, leaving the rest to be admitted to probate.254 In the comparatively rarer case where the entire will is circumvented by fraud, as in Robertson v Smith,,255 the document is declared invalid in toto.

Mistake and Statutory Rectification of Wills 2.55 Unlike in inter vivos transactions, and particularly contracts, no equitable doctrine of rectification256 applies with respect to wills.257 But, aside

from where the issue can be addressed by way of construction,258 courts of probate have assumed a limited inherent jurisdiction to correct testators’ mistakes. Unfortunately, the parameters of this jurisdiction are most confined, and the law has in any case proven confused and unwieldy. In several cases, moreover, testators’ clear intentions have been defeated by simple errors.259 This spawned the enactment in all Australian states and territories of a statutory power to rectify wills in defined circumstances. Although the legislation was intended to supplement rather than replace the probate jurisdiction, the confined scope of the latter means that a successful application is more likely under the former. Each jurisdiction is discussed in turn below.

Probate jurisdiction Jurisdiction does not rectify mistake as to the legal effect of words used 2.56 As a general principle, a testator who, either in drawing up a will or by employing someone to do so, makes a mistake as to the legal effect of the words used is deemed to have knowledge and approval of the will as it is written. Knowledge and approval, to this end, extends to the legal effect assigned to the words used in the will. As explained by Salter J in In the Estate of Beech (deceased):260 A testator cannot give a conditional approval of the words which have been put into his intended will by himself, or by others for him. He cannot say: ‘I approve these words if they shall be held to bear the meaning and have the effect which I desire, but if not I do not approve them’. He must [page 73] find, or employ others to find, apt words to express his meaning; and if, knowing the words intended to be used, he approves them and executes the will, then he knows and approves the contents of his will, and all the contents, even though such approval may be due to a mistaken belief of his own, or to honestly mistaken advice from others, as to their true meaning and legal effect …

In Collins v Elstone261 a testator left two wills and a codicil to the first will. The second will, which disposed only of a small policy of insurance on her life,

was drafted by one of her executors. It contained a general revocation clause revoking all her previous testamentary dispositions. When this clause was read over to her, she objected to it, but the drafter assured her, quite wrongly, that the words of revocation would not apply to her former testamentary dispositions. Sir Francis Jeune P held, albeit reluctantly, that the testator knew and approved the words of revocation and probate was granted with the words included. The earlier will and codicil could not therefore be admitted to probate. No doubt judges at common law were keen to decline invitations requiring a degree of speculation regarding the testator’s intention in circumstances where the words used could be given a clear meaning and effect.

Power to omit words in certain circumstances 2.57 If the mistake is not one concerning the legal effect of the words used, but an error of fact, probate courts did assume a limited jurisdiction to omit mistakenly inserted words. This could occur, for instance, where the drafter makes a clerical error in recording the instructions for the will or misunderstands those instructions, that is, makes an error of fact as to the testator’s actual intention262 (sometimes described as the ‘blundering attorney’s clerk or law stationer’ principle).263 Extrinsic evidence is admissible to show that the will does not reflect the testator’s true intentions.264 If that evidence is available, and in the bulk of cases it will need to be, the offending words can be omitted if it is established that the testator did not intend to include them and that they alter the testator’s true intentions. The jurisdiction is illustrated by Re Phelan (deceased).265 The testator executed a will in which he appointed his landlady and her husband executors and beneficiaries. Shortly thereafter he executed three further wills, appointing the same executors and beneficiaries, each containing a revocation clause and disposing a single investment in a unit trust. These were executed separately because the testator mistakenly believed that each of those investments needed to be dealt with by separate wills. Stirling J did not hesitate to admit all the wills to probate but with the omission of the revocation clauses in the three later wills. These had been included in the will inadvertently, or due to the testator’s misunderstanding, and so did not reflect his true intentions. 2.58

There is also scope for a court of probate to omit words inserted into

the testator’s will by fraud.266 The same principle applies where the words, for which the testator gave no instructions, form per incuriam part of the document he or she signed, where the document was not read over to the testator or the words were not otherwise brought to his or her notice.267 [page 74] The result is likely to be different, and the court’s hands tied, where the will was read over to the testator, such that his or her knowledge and approval can be presumed.268 2.59 But outside of scenarios noted in the preceding paragraph, the power to omit words in wills is most limited. It has only been applied, it is said, where ‘the matter omitted was, so to speak, self-contained and its omission did not alter the sense of what remained’.269 If to omit the words causes the sense of the remaining words to be altered, the court’s intervention would essentially involve making a new will, a power it lacks. As explained by Sir James Hannen in Harter v Harter:270 Such a mode of dealing with wills would lead to the most dangerous consequences; for it would convert the Court of Probate into a court of construction of a very peculiar kind, whose duty it would be to shape the will into conformity with the supposed intentions of the testator. In very many of the cases which come before the Courts of Law and Equity, as to the proper construction of wills, the intention of the deceased is supposed to be seen, but the question is whether the language used expresses the intention. If the process now sought to be applied to this will were to be adopted, the Court of Probate will in future be asked, first to ascertain by extrinsic evidence what the testator’s intention was, and then to expunge such words or phrases, as, being removed, will leave a residuum, carrying out the intention of the testator in the particular case, though different in form, and possibly in legal effect, from that which the testator or his advisers intended.

Re Horrocks (deceased)271 is illustrative. There a bequest was made to objects described as ‘charitable or benevolent’. The use of the word ‘or’ rendered the gift void for uncertainty, as it infringed the rule that purpose gifts must be exclusively charitable.272 The solicitor who drafted the will gave evidence that the disjunctive ‘or’ was a typographical error, and that the intention at all times was to insert the word ‘and’. The English Court of Appeal remained unconvinced that the evidence supported such a mistake. In any case, as a gift in favour of ‘charitable benevolent’ objects would have been valid — the scope

of the term ‘benevolent’ in this instance would be confined by the term ‘charitable’ — proceedings were instituted to have the will admitted to probate with the omission of the word ‘or’. Yet the court refused to omit the word ‘or’, as to do so would alter the effect of the word ‘charitable’ approved by the testator, by restricting it to only those charitable purposes that were also benevolent.273 It follows that if omitting the words would, in the words of the Australian High Court, cause the will to ‘have an effect different both from that which it has on the fact of the instrument and from that which the deceased intended it to have … [t]hat, plainly, would be to go beyond the jurisdiction of the Probate Court’.274 [page 75]

No power to insert words 2.60 Whereas a court of probate assumed a jurisdiction to omit words in defined circumstances, it assumed no equivalent jurisdiction to add or alter words omitted from a will by mistake, even in the face of cogent evidence that the error was entirely unintentional.275 To add or alter testamentary words, it is reasoned, would be contrary to the statutory requirement that wills be in writing and signed for validity,276 but be illegitimately giving effect to oral testimony.277 As the Privy Council remarked in the late nineteenth century:278 For even though the Court is convinced that the words were improperly introduced, so that if the instrument was inter vivos they would reform the instrument and order one in different words to be executed, it cannot make the dead man execute a new instrument.

Courts are alert, therefore, to applications to omit words the validity of which, in effect, rests upon the court inserting words in place of those (to be) omitted. For example, in Re Hemburrow (deceased)279 the testator’s instructions were to prepare a will that included a gift on trust of all of her real estate and the residue of her personal estate. The actual will read, ‘I give … the whole of my real estate’, the words ‘and the residue of my personal estate’ being omitted through a clerical error. The testator executed the will without detecting the mistake. An application was made to admit the will to probate with the omission of the word ‘real’ from the relevant clause. Gillard J refused the

application, reasoning that its real object was to insert words omitted inadvertently from the will, not to omit a word inserted by mistake. 2.61 An unusual case, that the High Court warned should be ‘treated with some reservation’,280 is In the Goods of Boehm.281 The testator directed that a bequest be given to each of his daughters ‘Georgiana’ and ‘Florence’, but the drafter inadvertently inserted the name of Georgiana in both the clauses of the will relating to the gifts, omitting the name of Florence altogether. The draft was not read over to the testator at any time, and the error was not brought to his notice. Jeune J stated:282 Here, to strike out the word Georgiana and to leave a blank in its place does not leave the will what the testator intended it should be, and I am not aware that there is any exact authority for striking a word out of a will under these circumstances … But I think that the application of the principle of striking out a word clearly inserted in mistake may be safely extended, if it be an extension, to a case where the effect of its rejection may be to render ambiguous, or even insensible, a clause of which it formed part … It may be that … the effect of striking out the name in question will be, on the construction of the will, as it will then read, to carry out the testator’s intentions completely. It is not for me to decide that. But even if to strike out a name inserted in error and leave a blank have not the effect of giving full effect to the testator’s wishes, I do not see why we should not, so far as we can, though we may not completely, carry out his intentions. I am, therefore, willing to grant probate of this will as prayed with the omissions specified.

The difficulty with his Lordship’s reasoning, and one that it appears he was acutely aware of, is that omitting the name of Georgiana in its second appearance would not necessarily have the effect of benefiting Florence. In fact, making the said omission would render the relevant clause meaningless. Bearing in mind that Boehm was a case in which all parties consented to [page 76] the application,283 the case is one, among many, that illustrate the need for a broader curial jurisdiction to rectify wills.284

Statutory rectification powers 2.62 As foreshadowed earlier, that the probate jurisdiction is both confined and confused presented it as a candidate for statutory intervention. All

Australian jurisdictions have responded, adopting one of two models directed to vesting in the court a power to rectify wills in defined circumstances. The most widespread model — that recommended by the National Committee for Uniform Succession Laws285 — has found expression in the wills legislation other than in the Australian Capital Territory and South Australia. Yet this model is more confined in its scope than the model adopted in the latter two jurisdictions.

Uniform succession laws model 2.63 The wills legislation in New South Wales, the Northern Territory, Queensland, Tasmania, Victoria and Western Australia empowers the Supreme Court to order that a will286 be rectified to carry out the testator’s intentions if it is satisfied that the will does not carry out the testator’s intentions because either a clerical error was made or the will does not give effect to the testator’s instructions.287 The relevant provisions are modelled on existing English legislation,288 and so decisions on that legislation assist in its interpretation. A leading English case is Re Segelman (deceased) ,289 where Chadwick J observed that the relevant section requires a court to examine first, ‘the testator’s intentions with regard to the dispositions in respect of which rectification is sought’, second, ‘whether the will is so expressed that it fails to carry out those intentions’, and third, ‘whether the will is expressed as it is in consequence of either (a) a clerical error or (b) a failure on the part of someone to whom the testator has given instructions in connection with his will to understand those instructions’. The first inquiry requires the court to admit extrinsic evidence of the testator’s intentions with regard to the relevant disposition(s). This may include, say, instructions to the drafter, evidence from the drafter, evidence of any previous wills and presumably evidence from any other persons as to the actual making of the will. If, on the second inquiry, the court finds [page 77]

that the will so expressed fails to carry out those intentions, it must then determine, via its third inquiry, whether or not the reason for the improper expression was either a clerical error or a failure to understand instructions. 2.64 Being remedial in character and object, the rectification provisions justify a liberal construction.290 The term ‘clerical error’ has, to this end, received a broad interpretation. It occurs ‘when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something … he did not intended to insert or omits something … he intended to insert’.291 ‘Clerical’ thus targets the nature of the error, not the nature of the person who made it.292 It can extend to instances where the relevant provision has either been introduced, or not been deleted,293 in circumstances where the drafter has not applied his or her mind to its significance or effect.294 There may, it has been suggested, be greater scope for a court to characterise an error occurring as a result of the inadvertent omission of word(s) as of a clerical nature than one arising from the inadvertent inclusion of word(s).295 But this assumes a distinction that is not always easy to make.296 It remains, in any case, that the statutory jurisdiction encompasses the fixing of errors stemming from the insertion of words, phrases or, as the ensuing remarks by Lord Neuberger in Marley v Rawlings indicate, even entire paragraphs:297 If, as a result of a slip of the pen or mistyping, a solicitor (or a clerk or indeed the testator himself) inserts the wrong word, figure or name into a clause of a will, and it is clear what word, figure or name the testator had intended, that would undoubtedly be a clerical error which could be rectified under [the statute]. It is hard to see why there should be a different outcome where the mistake is, say, the insertion of a wrong clause because the solicitor cut and pasted a different provision from that which he intended. Equally, if the solicitor had cut and pasted a series of clauses from a different standard form from that which he had intended, I do not see why that should not give rise to a right to rectify under [the statute], provided of course the testator’s intention was clear. Accordingly, the notion that a wholesale replacement of the provisions of a will is permissible … is demonstrated by the fact that it is difficult both as a matter in principle, and also in practice, to see where the line should otherwise be drawn.

That the above reasoning sought to justify the application of the rectification jurisdiction to a scenario where husband and wife mistakenly executed each other’s ‘mirror’ wills, which Australian law instead addresses by way of a judicial dispensing power lacking in the United Kingdom,298 may throw some shadow over whether the same breadth should apply here.

[page 78] That commentators have remarked the ‘extremely wide reading’299 and the ‘stretching’300 of the statutory words may prompt caution in Australian courts in expanding rectification into the ambit of the dispensing power. 2.65 Whatever the construction of the phrase ‘clerical error’, it is clear, both in Australia and England, that the rectification jurisdiction requires the court to be satisfied that the will, properly construed, does not carry out the testator’s instructions.301 The power to rectify neither removes the need for the proper construction of a will, nor is it an optional alternative to construction; it is a condition precedent to its exercise precisely as it is premised on the will not carrying out the testator’s intentions.302 In some instances the error may be so apparent that this condition will easily be met without seeking orders construing the will, but otherwise it may be prudent to seek orders of this kind,303 upon which the parties may rely (and be bound by). That this reflects the historical distinction between a suit for construction, and a suit for rectification, of a will does not by itself preclude, however, each matter being decided within the one proceeding.304 As the court’s inquiry is directed to whether the will fails to carry out the testator’s intentions because of a clerical error, or whether the will did not reflect the testator’s instructions, evidence of statements by the testator about his or her intentions before or after giving those instructions is generally inadmissible.305 There is sense in this, as the instructions are understood to reflect the testator’s intention at the critical time. 2.66 In each case, the onus of proof clearly lies on those seeking rectification, and the relevant standard is the civil balance of probabilities. As to the latter, however, that a will expresses the intention of a person who at the relevant time is unavailable to give evidence cannot but influence the weight of evidence required for the court to be ‘reasonably satisfied’306 of the allegation. The point has received a statutory foundation in jurisdictions that have enacted the uniform evidence law, which directs a court, in determining whether it is satisfied the case has been proved on the balance of probabilities, to take into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged.307 Each of

these matters is relevant to a claim for rectification of a will, as Campbell J explained in Rawack v Spicer:308 The nature of the cause of action or defence, namely a claim to rectify the will of the deceased person, involves a situation closely analogous to that involving a claim against a deceased estate.

[page 79] Hence the factors which will lead a Court to take great care in evaluating the evidence concerning a claim against a deceased estate … likewise apply to a claim for rectification. That granting rectification involves the Court in altering a document which will irrevocably change the destination of a deceased person’s property after death, when the deceased has gone to the trouble of executing in a particularly formal fashion an instrument, often after receiving legal advice that the testator has paid for, is a serious subject matter. To allege that a testator, particularly when a will has been made in a formal fashion and with legal advice, has incorrectly stated, or unclearly stated, his or her intentions in that Will, is to allege a fairly grave matter — not as far advanced, in the spectrum of gravity of allegations, as an allegation of fraud, but still fairly grave.

The above considerations underlie some of the judicial statements about the applicable standard of proof, in particular to the need for ‘clear and convincing proof’ before rectification is granted.309 This will prove most challenging, it has been suggested, where it is sought to alter that to which a testator solemnly put his or her hand in the presence of two witnesses after an expression of full understanding that this represented his or her testamentary intention, but (much) less challenging in the event of an obvious mistake.310 Nonetheless, the question goes to proof, not to the jurisdiction to order rectification.311

Australian Capital Territory and South Australian model 2.67 The Australian Capital Territory and South Australian wills statutes, following an earlier model, state that if the court is satisfied that a will does not accurately reflect the deceased’s testamentary intentions, it may order that the will be rectified as to give proper expression to those intentions.312 Unlike its counterparts elsewhere, the statutory language is not confined to clerical errors or some misinterpretation of a testator’s instructions. Its breadth equates with, and indeed may go beyond, the equitable rectification power available vis-à-vis inter vivos transactions.313 For instance, there is nothing to preclude the

jurisdiction being exercised where a testator drafts his or her own will and fails to appreciate the legal effect of the words used or, more commonly, where he or she employs a professional drafter, communicates instructions clearly, but the drafter fails to appreciate the legal effect of the words used. The width of the sections should encompass these types of mistake, as well as factual omissions and insertions. Wesley v Wesley314 was the first successful application for rectification in South Australia. In that case, the testator’s will left his entire estate to eight named persons, being five children of his cousin and three of his nephews. At his death the testator had a niece and two unborn nephews (the mothers of both children being pregnant at the time) who were not beneficiaries under the will. The executor applied to have the will rectified to include the niece and two [page 80] posthumous nephews as beneficiaries. The evidence, according to Debelle J, showed that the testator intended to benefit all of his nephews and the children of his cousin, and not to exclude any of them. His Honour rectified the inadvertent omission of the niece, and also allowed the posthumous nephews to be classed as beneficiaries as they were en ventre sa mere315 at the relevant time. 2.68 The judgment contains some useful remarks concerning the power to rectify, which largely align with those of courts in other jurisdictions. First, when an application to rectify is made, the court must determine the meaning of the will, the deceased’s testamentary intention, whether the will accurately reflects that intention and, if not, whether the will can be rectified and in what terms.316 Second, rectification is not a means by which a will is redrawn to accord with what others believe is a just and equitable distribution. It serves only to make a will accord with the testator’s proved intention.317 Third, where a lawyer has drafted the will, a means of ascertaining that intention is to admit evidence of the testator’s instructions to the lawyer.318 It may be that greater caution is needed vis-à-vis evidence of other persons, especially those with an

interest in the estate. Debelle J explained the point as follows:319 Evidence might also be led from persons other than the testator’s solicitor to whom the testator had spoken either before or after the execution of his will. Care must be taken with such evidence. The evidence may be tainted by self-interest or by a desire to enable a particular person to benefit. Alternatively, a testator who has expressed an intention to benefit a person not named in the will might have been intending to appease a member of his family. It is not uncommon in human experience for a testator to give divergent accounts of his will to different persons either to maintain harmony or to curry favour with family or friends. Each case will have to be determined on its own facts and each will suggest the kind of caution which should be exercised.

Fourth, and flowing from the foregoing, the court must determine the testator’s intention at the date the will is made, as it is then that the testator executed a will pursuant to his or her instructions.320 Consistent with the position in other jurisdictions, therefore, evidence before and after this date is ordinarily inadmissible for this purpose. 2.69 More generally, the discretion vested by the rectification provisions should be neither read down nor constricted by judge-made rules. The preconditions for its exercise, in any case, are expressed in ‘very broad and general terms’.321 Like the rectification provisions elsewhere, moreover, a broad construction is merited by reason of their remedial object. This appears from the construction of the phrase ‘testamentary intentions’ adopted by Gray J in Re Estate of Dawes (deceased):322 The section] contains no implication that the type of ‘testamentary intentions’ of a deceased person, the subject of an application under the section, should be regarded as limited to certain categories of intentions. It appears that the jurisdiction to rectify given by the section is intended to apply to the case of an inaccurate reflection of a testamentary intention in a will regardless of the source or type of inaccuracy or reason for the inaccuracy. The term ‘testamentary intentions’ can be read in both broader and narrower senses. On the one hand, it is correct to say that a person’s testamentary intentions encompass the particular provisions that the person wishes to include in his or her will, for example, particular legacies or [page 81] gifts that the person wishes to make, powers that the person wishes to confer, discretions given to trustees and the like. That is to say, the term ‘testamentary intentions’ clearly encompasses matters of detail and the particular provisions by which a desired end is to be achieved or regulated. However, the expression should not be regarded as being so confined. The term ‘testamentary intentions’, in my view, also properly refers to the broader ends or purposes or outcomes that the testator wishes to achieve by his or her will when described in a more general way even if the testator has not turned his or her mind to the particular means by which that end

or purpose or outcome is to be achieved or where the testator would need to rely on a skilled drafter to supply the words for the will necessary to achieve that end or purpose or outcome.

Dawes involved a will made in hospital by an enfeebled testator without the benefit of legal advice. The testator married the following day, and died a day later. The will left his estate to his wife but, as it was not expressed to be made in contemplation of marriage, it was revoked by the marriage.323 But Gray J found sufficient evidence that the marriage was in fact contemplated, and therefore acceded to an application to rectify the will to express that contemplation. 2.70 However, the breadth of the statutory language, and its evident remedial purpose, does not licence the court to guess at the testator’s intention if he or she failed to address a particular contingency.324 Earlier New South Wales decisions, harking from a time when the relevant New South Wales section325 was identical to the current Australian Capital Territory and South Australian provisions, similarly highlight that, even if satisfied that the will (or clause) does not effect the testator’s intention, a court cannot rectify this unless it is also satisfied about what the testator actually intended to happen to the property in that event.326 The court cannot look at unforeseen circumstances and speculate what the testator might have done in those circumstances, and then supply words to meet those circumstances.327 Rectification, it has been said, ‘is available for mistakes, not for lack of vision or perception or knowledge’.328 2.71 The Australian Capital Territory wills legislation contains a unique provision, distinct from the general power of rectification, dealing with the situation where a testator fails to foresee a particular set of events that happen to come to pass after his or her death, where [page 82] this set of events has the effect of defeating his or her ultimate intention. It envisages that rectification may still be ordered in these circumstances if the court is satisfied that:329 (a) any of the following apply in relation to circumstances or events (whether they existed or happened before, at or after the execution of the will): (i) the circumstances or events were not

known to, or anticipated by, the testator; (ii) the effects of the circumstances or events were not fully appreciated by the testator; (iii) the circumstances or events arose or happened at or after the death of the testator; and (b) because of the circumstances or events, the application of the provisions of the will according to their tenor would fail to give effect to the probate intention of the testator if the testator had known of, anticipated or fully appreciated their effects.

This provision appears to reverse the principle, expressed in the case law in other jurisdictions on the general rectification power,330 that the rectification power cannot be used to address consequences that the testator did not foresee. Its terms appear to allow precisely that, though much will no doubt rest on the evidence adduced before the court. It nonetheless awaits judicial consideration.

Rectification and the execution of wrong ‘mirror wills’ 2.72 The court’s statutory jurisdiction to rectify wills to reflect the testator’s intention has been challenged by the scenario of ‘mirror wills’ — typically where a husband and wife make wills benefiting each other — where, as a result of a mistake, the husband signs the wife’s will and the wife signs the husband’s will. On a strict view of the concept of knowledge and approval, as neither meant to sign the particular document at all, but intended to put their signature on another document, animus testandi is lacking. As a result, at general law, it may well be that neither will can be admitted to probate,331 although some New Zealand and Canadian judges have not been quite so unyielding.332 2.73 In any case, there is New South Wales authority indicating that the issue is capable of being addressed by the statutory rectification power, albeit by going to the extreme of deleting all the parts of the document signed by the deceased and replacing these with the provisions of the document he or she intended to sign.333 But a more suitable and compelling basis for mollifying the strictness of the common law here is via the courts’ statutory power to dispense with formalities for a will (which lacks an equivalent in England, thus explaining why English law has, in this context, resorted to the rectification power).334 This is the approach favoured by courts in South Australia. In the seminal case, no doubt influenced not only by the breadth of the dispensing power in that jurisdiction, but by the lack (at the time) of a statutory rectification power, the will propounded for the husband but signed by the

wife was admitted to probate as the husband’s will.335 White J did not see the lack of a signature as fatal to the [page 83] judicial dispensing power, given there was no reasonable doubt that the husband intended the document to constitute his will.336 2.74 With the introduction of a statutory rectification power in South Australia, it was only a matter of time before the court would be asked to determine whether that power, or the dispensing power, was most apt in these circumstances. The issue arose before Gray J in Re Estate of Hennekam (deceased),337 another classic case of husband and wife ‘mirror wills’. The evident parliamentary intention in passing judicial dispensing legislation — to alleviate injustices occasioned by a rigid application of the formalities338 — led his Honour, in line with the existing South Australian judicial approach, to adopt the dispensing power to address the problem.339 In so doing he explained why the rectification power was inapt:340 [The dispensing power] is fundamentally concerned with remedying documents which have not complied with the statutory formalities and risk being held invalid as a consequence. In contrast, [the rectification power] is a devise to enable the court to correct a document which does not accurately reflect the testator’s intentions. It is generally concerned with rectifying mistakes as to the meaning or the contents of the will. In my view, to delete the portions of the will of the deceased’s wife which the deceased actually signed, so that the document complies with the known intentions of the deceased, is of greater artificiality than to admit to probate the actual will of the deceased, despite its lack of appropriate execution.

Gray J’s reasoning is compelling, and more closely aligned with the mischief to which the dispensing power, as opposed to the rectification power, is directed. It has accordingly been followed in New South Wales,341 indicating a welcome broader move away from the rectification approach in this context.

Relationship between statutory rectification powers and the process of construction 2.75 To give effect to the testator’s intention, the law acknowledges that it may be necessary for a court of construction, in construing the will, either to

change certain words or transpose them. However, this process is confined to minor changes or transpositions that are evidently errors on their face; it has limits, particularly with respect to reading into a will words that are not actually there.342 Outside of the aforesaid, the difference between construction and rectification cannot be overlooked, as an English judge has explained:343 If it is a question of [construction], then the document in question has, and has always had, the meaning and effect as determined by the court, and that is the end of the matter. On the other hand, if it is a question of rectification, then the document, as rectified, has a different meaning from that which it appears to have on its face, and the court would have jurisdiction to refuse rectification or to grant it on terms …

The cases law indicates that, even if applying the principles of construction344 may render an application for rectification otiose, the latter may still be apt. It is possible for rectification of an unclear clause to be granted ex abundanti cautela345 in order to make clear the testator’s [page 84] intention, it has been judicially observed, ‘even if the clause actually executed by the testator, on its proper construction, means the same as the clause as rectified’.346

Time limits and extensions of time for applications to rectify 2.76 All jurisdictions set a time limit within which an application for rectification must be brought, but give the court discretion to extend time. The time frame, and its commencement, varies between jurisdictions. Other than in New South Wales and Tasmania, it is 6 months, from the grant of representation in the Australian Capital Territory, South Australia and Victoria,347 and from the date of death elsewhere.348 In New South Wales and Tasmania it is 12 months and 3 months, respectively, from the date of death.349 The tendency to favour the testator’s death as the threshold date acknowledges informal administrations, wherein a grant of probate may not be sought, thereby making the period within which to rectify a will uncertain.350 2.77 Extension of time, in New South Wales, Tasmania and Victoria, rests on the court considering it to be ‘necessary’, but no extension can be made

after the final distribution of the estate.351 The latter limitation also applies in the Northern Territory, Queensland and Western Australia.352 In the Northern Territory the trigger for extension is phrased by reference to whether it is ‘just’;353 in Queensland the term used is ‘appropriate’.354 In Western Australia the court is simply given a power to extend time.355 Likewise, the Australian Capital Territory and South Australian provisions simply speak of extending being with leave or consent of the court.356 The varying expressions of what triggers the court’s discretion to extend time are unlikely to evince any real difference in application. As with all judicial discretions, it cannot be confined by judge-made rules. At the same time, consistent with the judicial approach to extending time for family provision applications,357 the courts have identified various factors that impact upon the exercise of the discretion, including the length of the delay, the reasons for the delay, whether extending time will cause anyone prejudice as a result of relying on the will as it stands, and the strength of the rectification claim.358 The cases reveal, to this end, a degree [page 85] of liberality with which applications for extension of time are ordinarily treated, harmonising with the remedial object the legislation is designed to achieve.

Delegation of Will-making Power General law rule against testamentary delegation 2.78 It is axiomatic in the law of wills that a testator cannot delegate the power to make a will to another person. As the law, under the core notion of freedom of testation, gives to a testator the right to dispose of his or her estate, a testator does not exercise that right, and so doing infringes the rule against testamentary delegation, if ‘in effect he empowers his executors to say what persons or objects are to be his beneficiaries’.359 Expressed another way, some

time earlier by the House of Lords:360 … a testator can defeat the claim of those entitled by law in the absence of a valid will to succeed to the beneficial interest in his estate only if he has made a complete disposition of that beneficial interest. He cannot leave it to another person to make such a disposition for him unless he has passed the beneficial interest to that person to dispose of as his own.

The rule is arguably predicated on three matters: first, that intention, knowledge and approval, as required on the mental act of will-making,361 are personal to the testator; second, on the necessity to comply with the formalities of will-making;362 and third, on the basis of uncertainty.363 2.79 At the outset, it must be noted that the rule has no application to bequests for charitable purposes.364 Hence, a testator can legitimately confer upon a personal representative a power to select and apportion a charitable gift among such charitable objects or institutions as that person chooses.365 The reason is that a charitable gift can be executed and administered by the court, even if only cy-près,366 because the law gives meaning to what is ‘charitable’.367 Nor does the rule apply in respect of a gift of property by will to a pre-existing trust or to constitute a [page 86] trust that was sufficiently constituted according to the rules of certainty in trust law.368 It is also unlikely to apply where secret or half-secret trusts are used.369 2.80 The rule is, in any event, difficult to reconcile with the well-established practice of creating powers of appointment in wills.370 Traditionally, English courts effected this reconciliation by characterising the non-delegation rule as an extension of the general rules of certainty — relating to the subject matter and the objects of the gift371 — rather than an independent basis for invalidity.372 In Re Beatty’s Will Trusts373 Hoffmann J viewed the rule as ‘a chimera, a shadow cast by the rule of certainty’. A contrary conclusion, it was reasoned, would imperil the validity of many wills containing wide powers of appointment. His Lordship interpreted the authorities cited to support the non-delegation rule as meaning no more than ‘a gift which is expressed in language too vague to be enforced cannot be rescued by giving the executor a power of choice’.374

Under the English approach, provided that the gift does not fail for uncertainty, there is nothing to preclude a testator vesting in a personal representative a general power,375 special power376 or hybrid power377 vis-à-vis (part of) the estate. This classification of powers rests largely on the width of the class of possible appointees. A power is ‘general’ if it permits the donee to appoint a person, including himself or herself. No restrictions are placed on that donee, as in the case of a power ‘to such persons as T shall select’. A ‘special’ power restricts the donee to making an appointment in favour of a limited class of persons, defined with certainty, as in the case of ‘to such of my cousins, as T shall select’. A ‘hybrid’ power vests in the donee power to appoint to anyone except a named person or a class of persons, say, ‘to such persons other than X and Y, as T shall select’. An appointment by a trustee or executor is necessarily hybrid, as he or she cannot appoint in his or her favour as a result of fiduciary law.378 2.81 Australian law has adopted the same approach as regards general powers and special powers, which are seen as falling outside the rule against testamentary delegation. The leading statement is arguably that of Kitto J in Tatham v Huxtable:379 The proposition should, I think, be accepted that a testamentary disposition in favour of a person or persons to be selected by someone other than the testator himself, if it is not to fail as infringing the general rule forbidding the delegation of testamentary power, must either confer upon the

[page 87] person authorized to make the selection a general power equivalent to ownership or to find with certainty a class or group from which the selection is to be made.

Thus, a general power does not infringe the non-delegation rule as it gives the donor unqualified power of disposition, equivalent to ownership. The creation of a general testamentary power is therefore regarded as a disposition of that ownership of the property to the donee of the power. Special powers are treated likewise, albeit because there is no abrogation of the testator’s duty to personally select the beneficiaries. As to hybrid powers, however, Australian law has consistently found them to infringe the rule, for the reasons Fullagar J

explained in Tatham v Huxtable:380 I do not think that the mere exclusion of one person or some persons from a class will … be enough to achieve the requisite certainty … Unless there is a class designated with certainty, to say that the creation of a power to select beneficiaries amounts to a testamentary disposition of property is not merely to relax the principle to meet an exceptional case but to deny the principle absolutely.

It appears that his Honour saw the validity of non-general powers as premised on the objects constituting a class. Under a special power, the objects constitute a class such that, upon appointment, the property disposed passes from the donor rather than the donee of the power. In contrast, the power to exclude persons from a specified class is inconsistent with a disposition by the donor. Although this analysis can be criticised as unduly technical,381 and inconsistent with a later High Court dictum,382 the Australian general law does not appear to have shifted.383

Statutory ouster of general law rule 2.82 Other than in South Australia and Western Australia, the issues surrounding testamentary delegation have in any event now become moot,384 as the wills legislation has, following the recommendation of law reform bodies,385 abolished the rule against testamentary non-delegation.386 It has done so by declaring that a power (or trust) to dispose of property created by will is not void on the ground that it is a delegation of the testator’s power to make a will, if the same power (or trust) would be valid if made by the testator inter vivos. As the validity of inter vivos dispositions rests upon the requisite certainty, in these jurisdictions the position equates to that reached by the courts in England. In the absence of equivalent statutory provision in South Australia and Western Australia, in these jurisdictions it is inadvisable to include hybrid powers in wills, but to instead expressly nominate the object or beneficiaries.

1. 2.

See 4.1–4.20. ACT s 8(1); NSW s 5(1); NT s 7(1); Qld s 9(1); SA s 5(1); Tas s 7(1); Vic s 5; WA s 7. There is also a statutory wills regime in most jurisdictions that enables a minor to make a particular will if its terms have been disclosed to the court and leave is granted by the court: see 3.22–3.24. The traditional

3.

4. 5. 6. 7. 8. 9. 10. 11. 12.

13.

14.

15. 16.

17. 18.

rationales for proscribing minors from making wills — to protect them from the consequences of improvident testamentary decisions, as a proxy for a certain level of mental capacity required of all testators, and to implement forced parental inheritance — are not found compelling by all: see, for example, M Glover, ‘Rethinking the Testamentary Capacity of Minors’ (2014) 79 Missouri L Rev 69 (who sees it as unduly interfering with freedom of testation, arguing that improvidence is less of a concern for wills than for contracts and inter vivos gifts, and that any proxy approach should yield to an assessment of capacity on an individual basis). ACT s 8(2); NSW s 5(2)(b); NT s 7(2)(b); Qld s 9(2)(b); SA s 5(2); Tas s 7(2)(b); Vic s 6(b). The legislation adds that a will made in contemplation of a marriage by a minor will be valid upon the solemnisation of that marriage: ACT s 8(3); NSW s 5(2)(a); NT s 7(2)(a); Qld s 9(2)(a); SA s 5(3); Tas s 7(2)(a); Vic s 6(a). See 2.2–2.20. See 2.21, 2.22. See 2.27, 2.28. See 2.39–2.47. See 2.48–2.54. As to grants of probate, see Chapter 11. See 2.55–2.77. See 2.78–2.82. (1995) 217 ALR 284 at 295; BC9504790 (dissenting, but not on this statement of principle). See also at 290 per Gleeson CJ (‘the power to freely dispose of one’s assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter’). See, for example, Vaughan v Marquis of Headfort (1840) 10 Sim 639 at 641; 59 ER 764 at 765 per Shadwell VC (‘By the laws of this country, every testator, in disposing of his property, is at liberty to adopt his own nonsense’); Bird v Luckie (1850) 8 Hare 301 at 306–7; 68 ER 375 at 378 per Knight Bruce VC (‘no man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise, or the good. A testator is permitted to be capricious and improvident, and is, moreover, at liberty to conceal the circumstances and the motives by which he has been actuated in his dispositions’); Banks v Goodfellow (1870) LR 5 QB 549 at 565–6, 569 per Cockburn J; Schrader v Schrader [2013] WTLR 701; [2013] EWHC 466 (Ch) at [82] per Mann J (‘Testators do strange things and are entitled to be whimsical, capricious, vindictive, wrong in belief or their acts beyond explanation without that of itself proving lack of capacity (though those factors may contribute to a bigger picture demonstrating it). They are entitled to change previous provisions in previous wills without explanation or discussion, without that being taken as a serious demonstration of want of capacity’). See, for example, Flynn v Roccisano [2004] VSC 346; BC200405998 (where Teague J described the testator’s act of disinheritance of her only daughter as ‘a judgment that was so much more than unfair’, and ‘so extreme as to be delusional’, which ‘was obviously the product of mental disorder’, against the backdrop of evidence that the testator suffered severe chronic schizophrenia: at [37]). Cf Bull v Fulton (1942) 66 CLR 295; BC4200025. Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17; BC201400746 at [180] per E M Heenan J (aff’d Saunders v Public Trustee (2015) 13 ASTLR 226; [2015] WASCA 203; BC201509673). See 2.5. Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197; BC200905954 at [65] per Hodgson JA (envisaging that ‘perhaps the most compelling evidence of understanding would be reliable evidence (for

19.

20. 21.

22. 23. 24. 25. 26. 27. 28. 29.

30.

example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased’s assets, the deceased’s family and the effect of the will’); Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [17] per Lewison LJ, with whom McFarlane and Sullivan LJJ concurred. Kalaf v Grimanes [2013] WASC 327; BC201303303 at [120], [121] per Allanson J. See, for example, Burns v Burns [2016] WTLR 755; [2016] EWCA Civ 37 (where a lowish score on a Mini-Mental State Examination was held not to preclude a finding of capacity). Jeffery v Jeffery [2013] WTLR 1509; [2013] EWHC 1942 (Ch) at [246] per Vos J. See also Saunders v Public Trustee (2015) 13 ASTLR 226; [2015] WASCA 203; BC201509673 at [202] per Mitchell J. See, for example, Clemens v Byrnes [2007] NSWSC 421; BC200703307 (where the testator’s exclusion of his children from his testamentary bounty was found not to be the product of mental incapacity, even in the face of schizophrenia and delusions); Vegetarian Society of the United Kingdom Ltd v Scott [2014] WTLR 525; [2013] EWHC 4097 (Ch) (where the testator suffered schizophrenia and severe thought disorder but was nonetheless found, at the relevant time, to have capacity). See 2.11–2.13. Perpetual Trustee Co Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 at 384; BC9301766 per Powell J. (2009) 25 VR 40; [2009] VSC 190; BC200904195. Edwards v Edwards (2009) 25 VR 40; [2009] VSC 190; BC200904195 at [56]. See also Norris v Tuppen [1999] VSC 228; BC9903881 at [66] per Ashley J. See Chapter 3. Re Kelsall [2016] VSC 724; BC201610250 at [102] per McMillan J. (1870) LR 5 QB 549 at 565 (numbering supplied). See, for example, In the Will of Wilson (1897) 23 VLR 197 at 199 per Hood J; Timbury v Coffee (1941) 66 CLR 277; BC4190106; Shaw v Crichton (CA(NSW), 23 August 1995, unreported) BC9505228; Re Brokenshire (deceased) (1998) 8 VR 659; [1998] VSC 183; BC9807204 at [7], [8] per Smith J; Howroyd v Howroyd (2011) 9 ASTLR 231; [2011] TASSC 73; BC201110547 at [56] per Wood J. It has likewise been endorsed and applied in New Zealand: see, for example, Re White (deceased) [1951] NZLR 393 (where Finlay J described Banks v Goodfellow as a case that has been ‘singularly free from judicial criticism’: at 415). Cf K Purser, ‘Assessing Testamentary Capacity in the 21st Century: Is Banks v Goodfellow Still Relevant?’ (2015) 38 UNSWLJ 854 (who, while opining (at 854) that ‘it is remarkable that the testamentary capacity doctrine has undergone so little refinement since its establishment in the 19th century’, and querying (at 855) whether the test takes into account testator understanding of the complexity of modern estate planning and testamentary structures (such as trusts, companies and self-managed superannuation funds), as a result of empirical study concludes (at 873) that ‘despite the questions about its usefulness, including in the medical literature, [Banks v Goodfellow] is a sound, general formulation of the legal elements necessary to be examined when assessing testamentary capacity’). While English law now prescibes a statutory test of mental capacity (see Mental Capacity Act 2005 (UK) ss 1–4), the tide of first instance case law confines the statutory test to issues arising under the Act itself, rather than as a generally applicable standard of (testamentary) mental capacity: see Scammell v Farmer [2008] WTLR 1261; [2008] EWHC 1000 (Ch) at [21]–[30] per Stephen Smith QC; Walker v Badmin [2015] WTLR 493; [2014] EWHC 71 (Ch) at [16]–[50] per Nicholas Strauss QC; Kicks v Leigh [2014] EWHC 3926 (Ch) at [63]–[66] per Stephen Morris QC; Elliott v Simmonds [2016] WTLR 1355; [2016] EWHC 732 (Ch) at [52] per Deputy Judge Murray. Contra Fischer v Diffley [2014] WTLR 757; [2013] EWHC 4567 (Ch) at [25]–[33] per HHJ Digit.

31. 32. 33.

34. 35. 36. 37. 38. 39. 40.

41. 42.

43.

44. 45. 46.

King v Hudson [2009] NSWSC 1013; BC200909116 at [51] per Ward J (citing from [1967] Australian Bar Gazette 2 at 3). Cowderoy v Cranfield [2011] WTLR 1699; [2011] EWHC 1616 (Ch) at [132] per Morgan J. Walker v Badmin [2015] WTLR 493; [2014] EWHC 71 (Ch) at [32] per Nicholas Strauss QC. See also Public Trustee v Alzheimer’s Australia WA Ltd (No 2) [2014] WASC 337; BC201407838 at [37] per Pritchard J (in judging the question of testamentary capacity, ‘the courts do not overlook the fact that many wills are made by people of advanced years, some of whom will display slowness, illness, feebleness and eccentricity to a greater extent than persons of a younger age’). This in turn explains why old age, in itself, is not evidence of incapacity: see 2.14. Vegetarian Society of the United Kingdom Ltd v Scott [2014] WTLR 525; [2013] EWHC 4097 (Ch) at [26] per HHJ Simon Barker QC. See 2.27. See, for example, Public Trustee v Stretch [2002] WASC 147; BC200203151. Green v Green [2015] NZHC 1218; BC201561833 at [95] per Winkelmann J (for example, that the effect of appointing an executor is to give the executor control over an estate). [2014] WTLR 1097; [2014] EWCA Civ 280. Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [44]–[46]. Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [46]. See also Gray v Hart [2012] NSWSC 1435; BC201210602 at [354] per White J (‘It cannot be the case that before being capable of making a will, a will-maker must be able to comprehend and evaluate the claims of all those who would be disinherited by the estate not passing in accordance with the laws of intestacy. A testator might never have met, or might be unaware of the existence of such persons’). Brown v Guss [2014] VSC 251; BC201404198 at [345] per McMillan J. Brown v Guss [2014] VSC 251; BC201404198 at [345] per McMillan J (noting that many elderly persons choose to give a degree of control of their finances to their relatives and advisors, and so in assessing testamentary capacity a court should in light of this look ‘not to testators’ actual understanding of their financial situation, but to their capacity to understand the nature of their assets, the extent of their assets, how they wish those assets to be divided, and who they should consider when dividing those assets’). Kerr v Badran [2004] NSWSC 735; BC200406537 at [49], a passage approved by the New South Wales Court of Appeal in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197; BC200905954 at [64] per Hodgson JA, at [94] per Young JA, and by Simmonds J in Brown v Wade [2010] WASC 367; BC201009361 at [18] (remarking that ‘it is not necessary an alleged testator with substantial real estate assets had sufficient mental capacity to understand the detail as to them, such as their addresses or values; but his uncertainty as whether or not he still owned the substantial real estate assets of which the purported will disposed would point to lack of testamentary capacity’). See also Frizzo v Frizzo [2011] QCA 308; BC201108434 at [53], [67], [68] per Muir JA, with whom Margaret McMurdo P and White JA concurred. See, for example, Wood v Smith [1993] Ch 90 (where a discrepancy in the value of a share portfolio led to a finding of incapacity). Shaw v Crichton (CA(NSW), 23 August 1995, unreported) BC9505228. Bull v Fulton (1942) 66 CLR 295 at 341; BC4200025 per Williams J. See also Harwood v Baker (1840) 3 Moo PC 282 at 291; 13 ER 117 at 120 per Erskine J (PC) (‘the question … is not whether [the testator] knew when he executed his will that he was giving all his property to his wife and excluding all his other relations from any share in it but whether he was at that time capable of recollecting who those relations were of understanding their respective claims upon his regard and

47. 48. 49. 50. 51. 52. 53. 54.

55. 56.

57. 58.

59. 60.

61.

bounty and of deliberately forming an intelligent purpose of excluding them from any share of his property’). Gray v Hart [2012] NSWSC 1435; BC201210602 at [382] per White J. (1995) 217 ALR 284; BC9504790. Re Estate of Griffith (deceased) (1995) 217 ALR 284 at 292–3; BC9504790. Re Estate of Griffith (deceased) (1995) 217 ALR 284 at 296; BC9504790. Re Estate of Griffith (deceased) (1995) 217 ALR 284 at 297–8; BC9504790. Re Estate of Griffith (deceased) (1995) 217 ALR 284 at 301; BC9504790. See Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244; BC9904032 at [26]–[34] per Giles JA and Brownie AJA. Veall v Veall (2015) 46 VR 123; [2015] VSCA 60; BC201502640 at [209] per Santamaria JA, with whom Beach and Kyrou JJA concurred. See, for example, Vegetarian Society of the United Kingdom Ltd v Scott [2014] WTLR 525; [2013] EWHC 4097 (Ch) at [104] per HHJ Simon Barker QC (finding that when making his will the testator ‘did not feel the bond of natural love and affection with his blood family that usually exists’, and so ‘he consciously decided to leave his estate elsewhere’, which his Lordship characterised as ‘a decision which the law respects and upholds’). See 19.15–19.21. Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17; BC201400746 at [218] per E M Heenan J (aff’d Saunders v Public Trustee (2015) 13 ASTLR 226; [2015] WASCA 203; BC201509673). See also Bolger v McDermott [2013] NSWSC 919; BC201310902 at [448] per Hallen J (‘The freedom of testamentary disposition includes a freedom to be unfair, unwise, harsh, or even, “arguably perverse”, with one’s own property’); Hawes v Burgess [2013] WTLR 453; [2013] EWCA Civ 74 at [14] per Mummery LJ, with whom Patten LJ and Sir Scott Baker concurred (noting that freedom of testation dictates that people can make a valid will ‘even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed’); Fitzgibbons v Fitzmaurice [2014] NZAR 807; [2014] NZHC 710; BC201461312 at [41] per Goddard J (‘It is … perfectly possible for a person to make an intemperate, spiteful or rash decision and at the same time be of perfectly sound mind’). Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17; BC201400746 at [222] per E M Heenan J. While Cockburn CJ’s formulation of this element refers to ‘insane delusions’, that expression has been described as tautologous, as to speak of a delusion that is not insane involves a contradiction in terms: Shaw v Crichton (CA(NSW), 23 August 1995, unreported) BC9505228 at 2 per Powell JA. Cf Gray v Hart [2012] NSWSC 1435; BC201210602 at [341] per White J (who opined that, as a matter of ordinary English, the word ‘delusion’ does not necessarily connote a disorder of mind, although it can do). Banks v Goodfellow (1870) LR 5 QB 549 at 565 per Cockburn CJ. Bull v Fulton (1942) 66 CLR 295 at 339; BC4200025 per Williams J. See also Re Estate of Hodges (deceased) (1988) 14 NSWLR 698 at 706 per Powell J (in terms of a belief that is ‘not capable of rational explanation or amenable to reason and that is not explicable by reference to the subject’s education and culture’); Gray v Hart [2012] NSWSC 1435; BC201210602 at [341] per White J (‘the reference to a delusion is to a belief not capable of rational explanation, or to a false and unreasonable belief that the testator cannot be reasoned out of’); Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17; BC201400746 at [214] per E M Heenan J (aff’d Saunders v Public Trustee (2015) 13 ASTLR 226; [2015] WASCA 203; BC201509673). As did the testators in both Bull v Fulton (1942) 66 CLR 295; BC4200025 and Woodhead v Perpetual

62.

63.

64. 65. 66. 67. 68.

69. 70. 71. 72. 73.

74.

75.

Trustee Co Ltd (1987) 11 NSWLR 267, although in each case their will was held invalid for being made under a delusion. Shaw v Crichton (CA(NSW), 23 August 1995, unreported) BC9505228 at 9–11 per Cole JA, with whom Handley JA agreed; Re Estate of Griffith (deceased) (1995) 217 ALR 284 at 290–1; BC9504790 per Gleeson CJ (rejecting the submission that, for a delusion to exist, it must necessarily arrive from a form of insanity generally). Banks v Goodfellow (1870) LR 5 QB 549 at 566 per Cockburn CJ (‘a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will’); Tipper v Moore (1911) 13 CLR 248; BC1100006; Bull v Fulton (1942) 66 CLR 295 at 299–300 per Latham CJ, at 341–2 per Williams J; BC4200025; Re White (deceased) [1951] NZLR 393 at 409–10 per O’Leary CJ, at 416 per Finlay J; Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17; BC201400746 at [185] per E M Heenan J (aff’d Saunders v Public Trustee (2015) 13 ASTLR 226; [2015] WASCA 203; BC201509673). See, for example, Smith v Tebbitt (1876) LR 1 P & D 398. See, for example, Re Brokenshire (deceased) (1998) 8 VR 659; [1998] VSC 183; BC9807204 at [125] per Smith J. Banks v Goodfellow (1870) LR 5 QB 549 at 570 per Cockburn CJ. See, for example, Re White (deceased) [1951] NZLR 393 (see, in particular, at 415–20 per Finlay J). Woodhead v Perpetual Trustee Co Ltd (1987) 11 NSWLR 267 at 272–6 per Needham J (rejecting the contrary view expressed by Langton J in In the Estate of Bohrmann [1938] 1 All ER 271; see also R F Cross, ‘Delusions and Testamentary Capacity’ (1950) 24 ALJ 12, who criticised the Bohrmann decision). (1941) 66 CLR 277; BC4190106. Timbury v Coffee (1941) 66 CLR 277 at 281; BC4190106. [2004] VSCA 235; BC200408810. Kantor v Vosahlo [2004] VSCA 235; BC200408810 at [25]–[28] per Ormiston JA, at [67]–[73] per Buchanan and Phillips JJA. See, for example, Re Crooks Estate (SC(NSW), Young J, 14 December 1994, unreported) BC9403413 at 29 (noting that ‘[a]n experienced solicitor or solicitor’s secretary gets used to dealing with people making wills and are usually attuned to the red lights that flash when a person who is of suspect capacity comes across their paths’); Ridge v Rowden (SC(NSW), Santow J, 10 April 1996, unreported) BC9601342 at 50 (referring to the evidence of nurses experienced in dealing with and observing geriatric patients); Hamilton v Nelson [2012] SASC 219; BC201209653 at [13] per Gray J (who considered that the affidavits of the both deceased’s solicitor and the deceased’s executor and trustee (a senior barrister) provided a sound basis for concluding that the deceased had capacity, such that ‘[t]he unusual aspects of the will may be explained by the deceased’s idiosyncratic nature’); Poole v Everall [2016] WTLR 1621; [2016] EWHC 2126 (Ch) at [110] per HHJ David Cooke (involving an experienced solicitor with particular experience of the testator’s condition, the previous assessments by doctors, and his current level of functioning). Bailey v Bailey (1924) 34 CLR 558 at 572; BC2400030 per Isaacs J, with whom Gavan Duffy and Rich JJ agreed. See also Silvester v Tarabini (SC(WA), Anderson J, 13 February 1996, unreported) BC9600204 at 17 (‘The opinion of witnesses as to the testamentary capacity of a testator is not of much weight on the ultimate issue … It is for the court to determine the issue on the facts which the witnesses state rather than on their opinions and conclusions’). Norris v Tuppen [1999] VSC 228; BC9903881 at [85] per Ashley J; Revie v Druitt [2005] NSWSC 902;

76.

77. 78. 79. 80.

81.

82.

83.

84. 85. 86.

BC200506912 at [34] per Windeyer J (‘lay evidence of the activities, conversations, family circumstances and relationships of the deceased and evidence from doctors, often general practitioners who were treating doctors during the lifetime of the deceased, usually is of far more value than reports of expert specialist medical practitioners who have never seen the deceased’). Green v Green [2015] NZHC 1218; BC201561833 at [89] per Winkelmann J, referring to Hawes v Burgess [2013] WTLR 453; [2013] EWCA Civ 74 at [60] per Mummery LJ, with whom Patten LJ and Sir Scott Baker concurred. See, for example, Landers v Landers (1914) 19 CLR 222; BC1490114; Forde v Lee [2013] WASC 328; BC201303304 at [158] per McKechnie J. See 2.11. See, for example, Seeley v Back [2005] NSWSC 68; BC200500475. Bailey v Bailey (1924) 34 CLR 558 at 570; BC2400030 per Isaacs J, with whom Gavan Duffy and Rich JJ agreed (‘A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments’); Scattini v Matters [2004] QSC 459; BC200409184 at [96] per Muir J (although ‘[g]reat age is a factor which will normally suggest the exercise of particular vigilance when considering testamentary incapacity’, it does not follow that ‘even a marked decline in a testator’s intellectual capacity through advancing age establishes lack of testamentary capacity’); Vukotic v Vukotic (2013) 12 ASTLR 238; [2013] VSC 718; BC201315880 at [18] per McMillan J; Hawes v Burgess [2013] WTLR 453; [2013] EWCA Civ 74 at [14] per Mummery LJ, with whom Patten LJ and Sir Scott Baker concurred; Simon v Byford [2013] WTLR 1615; [2013] EWHC 1490 (Ch) at [156] per Mr N Strauss QC (aff’d Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280). But note the duty of the drafter of the will here: see 24.5–24.7. See, for example, Bailey v Bailey (1924) 34 CLR 558; BC2400030 (where a will prepared for an 88year-old sick testator was upheld; Isaacs J remarked that ‘[t]o displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient: there must be clear evidence that … the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property’: at 571–2, with whom Gavan Duffy and Rich JJ agreed); Re Estate of Rushton [2015] ACTSC 342; BC201510852 (where the fact that the testatrix suffered from metastatic breast cancer and was taking opiate-based pain relief and chemotherapy medication when executing her will did not, in the circumstances, speak of incapacity, given, inter alia, evidence from treating physicians as to her capacity: at [43]–[45] per Mossop AsJ). See, for example, Tavendale v Hargreaves [2013] NZHC 2374; BC201365427 (where, although the testatrix suffered from mild to moderate dementia when signing the will, the evidence revealed that she was entirely lucid at the time and fully understood what she was doing); In the Will of Barlow (deceased) [2014] QSC 7; BC201406897 (where cognitive impairment resulting from progressive dementia was held not to deny capacity: at [71]–[73] per Byrne SJA). See, for example, West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144 (where the evidence revealed that physical illness and pain so transformed the testator’s personality and character, particularly with respect to his wife, whom the testator delusionally believed had attempted to poison him, as to undermine a claim of mental capacity). See 2.2. Di Cecco v Contini [2004] VSC 211; BC200403486 at [35] per Whelan J. Di Cecco v Contini [2004] VSC 211; BC200403486 at [37] per Whelan J. See, for example, Wechsler v Du Maurier [2002] NSWCA 13; BC200200242 (where the court upheld the finding of Windeyer J at first instance that the testator’s false belief that her daughter had cheated or deceived her, which impacted upon the relevant testamentary disposition to the daughter, was not produced by mental

87.

88. 89. 90. 91. 92. 93. 94.

95.

96. 97.

98. 99. 100. 101. 102.

103. 104.

incapacity in the form of a delusion). Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15; BC200902940 at [46] per French CJ; Ackerley v Felton [2012] NSWSC 1468; BC201210652 at [43] per Young AJ; APK v JDS (2012) 267 FLR 478; [2012] NTSC 96; BC201209553 at [17] per Barr J. Fielder v Burgess [2014] SASC 98; BC201406394 at [29] per Kourakis CJ. Fielder v Burgess [2014] SASC 98; BC201406394 at [31] per Kourakis CJ. [2010] 1 WLR 2020; [2010] EWHC 408 (Ch). Re Key (deceased) [2010] 1 WLR 2020; [2010] EWHC 408 (Ch) at [95]. [2013] WTLR 899; [2013] EWHC 499 (Ch). As to the formality requirements, see 4.1–4.20. Bailey v Bailey (1924) 34 CLR 558 at 570; BC2400030 per Isaacs J, with whom Gavan Duffy and Rich JJ agreed; Thomas v Nash (2010) 107 SASR 309; [2010] SASC 153; BC201003372 at [72] per Doyle CJ. Bull v Fulton (1942) 66 CLR 295 at 343; BC4200025 per Williams J (noting that ‘[u]sually the evidence is such that the question upon whom the onus of proof lies is immaterial’); Worth v Clashom (1952) 86 CLR 439 at 453; BC5200490 per Dixon CJ, Webb and Kitto JJ; Re Estate of Hodges (deceased) (1988) 14 NSWLR 698 at 704 per Powell J; Re Estate of Griffith (deceased) (1995) 217 ALR 284 at 290; BC9504790 per Gleeson CJ; Kantor v Vosahlo [2004] VSCA 235; BC200408810 at [3] per Ormiston JA; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285; BC201209697 at [44], [45] per Meagher JA, with whom Basten and Campbell JJA concurred; Veall v Veall (2015) 46 VR 123; [2015] VSCA 60; BC201502640 at [168]–[171] per Santamaria JA, with whom Beach and Kyrou JJA concurred; Green v Green [2015] NZHC 1218; BC201561833 at [99] per Winkelmann J (at the same time rejecting the argument that ‘less capacity is required to make an apparently fair or rational will than one which is apparently irrational’). (1952) 86 CLR 439 at 453; BC5200490 per Dixon CJ, Webb and Kitto JJ. Nicholson v Knaggs [2009] VSC 64; BC200900993 at [94] per Vickery J. See also Kantor v Vosahlo [2004] VSCA 235; BC200408810 at [15]–[24] per Ormiston JA, at [58] per Buchanan and Phillips JJA; Giarrusso v Veca and Michielin (2015) 13 ASTLR 132; [2015] VSCA 214; BC201507901 at [22]– [27] per Garde AJA, with whom Beach JA concurred. See 24.5–24.7. Banks v Goodfellow (1870) LR 5 QB 549 at 568 per Cockburn CJ. (1883) LR 8 PD 171. Perrins v Holland [2011] Ch 270; [2010] EWCA Civ 840 at [23] per Sir Andrew Morritt C. Battan Singh v Amirchand [1948] AC 161 at 169 per Lord Normand (PC) (adding that ‘[t]he opportunities for error in transmission and of misunderstanding and of deception in such a situation are obvious, and the court ought to be strictly satisfied that there is no ground for suspicion and that the instructions given to the intermediary were unambiguous and clearly understood, faithfully reported by him and rightly apprehended by the solicitor, before making any presumption in favour of validity’). See, for example, J K Maxton, ‘Testamentary Capacity — The Rule in Parker v Felgate — An Illogical Exception?’ [1983] NZLJ 98. Namely the argument rejected by the English Court of Appeal in Perrins v Holland [2011] Ch 270; [2010] EWCA Civ 840 (reasoning that the need for knowledge and approval at the time of execution does not indirectly import the need for capacity at the time of execution, in that knowledge and approval is shorthand for the need to rebut suspicious circumstances: at [24], [25] per Morritt C). On the topic of knowledge and approval, see 2.27, 2.28.

105. Re Flynn (deceased) [1982] 1 All ER 882 at 890–1 per Slade J. 106. See, for example, Perera v Perera [1901] AC 345 at 361–2 per Lord Macnaghten (PC); Perrins v Holland [2011] Ch 270; [2010] EWCA Civ 840; Burns v Burns [2016] WTLR 755; [2016] EWCA Civ 37. 107. See, for example, Landers v Landers (1914) 19 CLR 222; BC1490114; Bailey v Bailey (1924) 34 CLR 558; BC2400030; Tasmanian Perpetual Trustees Ltd v Colbeck [2007] TASSC 86; BC200709696; Le Bon v Lili [2013] VSC 431; BC200311964; Re Spencer (deceased) [2015] 2 Qd R 435; [2014] QSC 276; BC201409771. 108. The admission of a testamentary document to probate is discussed in Chapter 11. 109. Whyte v Pollok (1881) LR 7 App Cas 400 at 405 per Lord Selborne LC. 110. As to the formalities, see 4.1–4.20. 111. (1863) 3 Sw & Tr 282 at 288; 164 ER 1282 at 1285. 112. See, for example, Nichols v Nichols (1814) 2 Phill 180; 161 ER 1113 (where the alleged will read: ‘I leave my property between my children; I hope they will be virtuous and independent; that they will worship God, and not black coats’). 113. See, for example, King’s Proctor v Daines (1830) 3 Hagg 218; 162 ER 1136. 114. See, for example, In the Estate of Meyer [1908] P 353. 115. [1965] VR 177. 116. As to privileged wills, see 4.21–4.29. 117. [1962] 2 All ER 829 at 833 per Wrangham J. 118. In the Estate of Knibbs [1962] 2 All ER 829 at 832. 119. In the Estate of Knibbs [1962] 2 All ER 829 at 831–2. 120. See, for example, Re Stable (deceased) [1919] P 7 at 9 per Horridge J. Cf In the Estate of Beech (deceased) [1923] P 46. 121. This reflects the notion that, statutory formalities aside, a will need not take a particular form: see 1.3. 122. See, for example, In the Goods of G T Robinson (1870) LR 2 P & D 171 (where the deceased, whilst on a sea voyage, wrote a will commencing with the words, ‘This is the last will and testament of me, that in case anything should happen to me during the remainder of the voyage from hence to Sicily and back to London, that I give and bequeath’, Lord Penzance held that as the testamentary dispositions were ‘dependent on a certain event, namely, something happening on the voyage’, it had ‘only a contingent operation’ (at 172), and as the deceased had safely returned from his voyage, the will no longer had effect). 123. [1897] P 28 at 30. See also In the Estate of Vines [1910] P 147 at 150–1 per Bigham P; Re Panapa [1993] 1 NZLR 694 at 696–7 per Williams J. 124. Meaning ‘the question falls’. 125. Hornsby v Hornsby (No 2) [2014] WASC 434; BC201411250 at [86] per E M Heenan J. 126. As to the ambulatory nature of a will, see 1.2. 127. Hornsby v Hornsby (No 2) [2014] WASC 434; BC201411250 at [86] per E M Heenan J. 128. (1877) LR 2 PD 73. 129. See the authorities cited in Goods of Spratt [1897] P 28, and the general discussion in Re Estate of Hassan (deceased) (2008) 100 SASR 464; [2008] SASC 14; BC200800268 at [60]–[72] per Gray J. 130. [1950] P 237. 131. [1897] P 28. In particular, see Burton v Collingwood (1832) 4 Hagg 176; 162 ER 1411; In the Goods of Dobson (1866) LR 1 P & D 88; In the Goods of Mayd (1881) LR 6 PD 17. 132. (1903) 9 ALR 217.

133. [1941] SASR 266. 134. See, for example, In the Goods of Dobson (1866) LR 1 P & D 88 at 88 per Sir J P Wilde (‘I am unwilling to refuse probate of a testamentary paper on the ground that it was contingent, unless it is clear that the testator intended that it should operate only in a certain event, or during a certain period’); In the Goods of Porter (1869) LR 2 P & D 21 at 22 per Lord Penzance; Re Estate of Hassan (deceased) (2008) 100 SASR 464; [2008] SASC 14; BC200800268 at [68] per Gray J. See, for example, In the Estate of Vines [1910] P 147 (the words ‘[i]f anything should happen to me while in India … all monies, documents, property [are] … to be handed over my wife’ held not to be conditional); Kirk v Kirk [2014] SKQB 319 (informal will to the effect that ‘[i]f I should not survive my trip to Prescott with subsequent surgeries, it is my final will that my entire Estate be left to [G]’ held not to be a conditional will). 135. In the Will of Wilson (1903) 9 ALR 217 at 218 per Hood J. 136. [1998] Ch 57. 137. Corbett v Newey [1998] Ch 57 at 65. See also at 68–70 per Morritt LJ. 138. Corbett v Newey [1998] Ch 57 at 70. 139. Hastilow v Stobie (1865) LR 1 P & D 64 at 68–9 per Sir J P Wilde. 140. Re Estate of Church [2012] NSWSC 1489; BC201210064 at [66] per White J (aff’d Church v Mason (2013) 12 ASTLR 190; [2013] NSWCA 481; BC201316185). The flipside is also true, namely that knowledge and approval can conceivably be found even in a case where the testator lacks testamentary capacity at the date when the will is executed, chiefly because, it is said, ‘[t]estamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made’: Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [47] per Lewison LJ, with whom McFarlane and Sullivan LJJ concurred. In any case, however, if a testator is found to lack the requisite capacity, the presence of knowledge and approval is ultimately irrelevant. At the same time, evidence relevant to testamentary capacity can be relevant to knowledge and approval: Greaves v Stolkin [2013] WTLR 1793; [2013] EWHC 1140 at [75] per Newey J; Veall v Veall (2015) 46 VR 123; [2015] VSCA 60; BC201502640 at [185] per Santamaria JA, with whom Beach and Kyrou JJA concurred. 141. Vukotic v Vukotic (2013) 12 ASTLR 238; [2013] VSC 718; BC201315880 at [132] per McMillan J. 142. Veall v Veall (2015) 46 VR 123; [2015] VSCA 60; BC201502640 at [197] per Santamaria JA, with whom Beach and Kyrou JJA concurred. 143. Parker v Felgate (1883) LR 8 PD 171 at 173–4 per Sir James Hannen P; Astridge v Pepper [1970] 1 NSWLR 542 at 548 per Helsham J. 144. Barry v Butlin (1838) 2 Moo PCC 480 at 484; 12 ER 1089 at 1091 per Parke B; Guardhouse v Blackburn (1866) LR 1 P & D 109 at 116 per Sir J P Wilde; Nock v Austin (1918) 25 CLR 519 at 528; BC1800001 per Isaacs J. As to what constitute ‘suspicious circumstances’, see 2.29–2.38. 145. Meaning ‘all things are presumed to be done in due form’. 146. See, for example, Hawes v Burgess [2013] WTLR 453; [2013] EWCA Civ 74 at [13] per Mummery LJ, with whom Patten LJ and Sir Scott Baker concurred (remarking that ‘talk of presumptions and their rebuttal is not regarded as specially helpful nowadays’); Re Estate of McDonald [2015] NSWSC 1610; BC201510487 at [49] per White J (opining that the use of the word ‘presumption’ in this area ‘should perhaps be avoided’). 147. Baker v Batt (1838) 2 Moo PCC 317 at 321; 12 ER 1026 at 1027 per Parke B; Tyrrell v Painton [1894] P 151 at 157 per Lindley LJ. 148. Guardhouse v Blackburn (1866) LR 1 P & D 109 at 116 per Sir J P Wilde; Atter v Atkinson (1869) LR 1 P & D 665 at 670 per Sir J P Wilde.

149. Fulton v Andrew (1875) LR 7 HL 448 at 460 per Lord Cairns LC (who ‘greatly deprecate[d] the introduction or creation of fixed and unyielding rules of law which are not imposed by Act of Parliament’), at 469 per Lord Hatherley (‘still circumstances may exist which may require that something farther shall be done in the matter than the mere establishment of the fact of the testator having been a person of sound mind and memory, and also having had read over to him that which had been prepared for him, and which he executed as his will’). 150. Fulton v Andrew (1875) LR 7 HL 448 at 469 per Lord Hatherley. See also Gregory v Taylor [1917] P 256 at 261 per Hill J (‘when it is proved that a will has been read over to or by a capable testator, and he then executes it, these circumstances afford a very grave and strong presumption that he knew and approved all the contents, a presumption which can be rebutted only by the clearest evidence’); Hinds v Collins [2006] 1 Qd R 514; [2005] QSC 362; BC200510559; Church v Mason (2013) 12 ASTLR 190; [2013] NSWCA 481; BC201316185 at [44] per Meagher JA (on the facts concluding that the fact that the will was read aloud was ‘persuasive and entitled to significant weight’, as the will was in simple terms and only two persons had an immediate call on the testator’s bounty); Re Estate of Lesses (deceased) [2013] SASC 23; BC200309018 at [21] per Gray J (‘reading the will prior to its execution is grave and strong evidence that the testator knew and approved the contents of the will’); Veall v Veall (2015) 46 VR 123; [2015] VSCA 60; BC201502640 at [184] per Santamaria JA, with whom Beach and Kyrou JJA concurred (noting that the fact that a will has been prepared by a solicitor and read to the testator is powerful evidence that it represents the testator’s intentions). 151. Re Morris [1971] P 62 at 75–9 per Latey J; Re Phelan (deceased) [1972] Fam 33 at 35 per Stirling J; Re Fenwick (deceased) [1972] VR 646 at 651–4 per Menhennitt J; Tanner v Public Trustee [1973] 1 NZLR 68 at 74 per Macarthur J, at 89 per Turner P; Re Bryden [1975] Qd R 210 at 213 per Dunn J. 152. As to this presumption, see 2.28. 153. See generally A Smith, ‘Suspicious Circumstances and Wills’ (1994) 24 QLSJ 347. 154. Burns v Burns [2016] WTLR 755; [2016] EWCA Civ 37 at [52] per McCombe LJ, with whom Treacy and Longmore LJJ concurred. 155. Baker v Batt (1838) 2 Moo PCC 317 at 321; 12 ER 1026 at 1027 per Parke B; Tyrrell v Painton [1894] P 151 at 157 per Lindley LJ, at 159–60 per Davey LJ; Nock v Austin (1918) 25 CLR 519 at 528; BC1800001 per Isaacs J; Wintle v Nye [1959] 1 All ER 552 at 559–60 per Viscount Simonds; McKinnon v Voigt [1998] 3 VR 534 at 556; BC9706054 per Tadgell JA, with whom Phillips JA agreed. 156. White v Wills [2014] NSWSC 1160; BC201412125 at [540], [541] per Sackar J. 157. Nock v Austin (1918) 25 CLR 519 at 528; BC1800001 per Isaacs J. See also Barry v Butlin (1838) 2 Moore 480 at 482–3, 485; 12 ER 1089 at 1090–1 per Parke B; Fulton v Andrew (1875) LR 7 HL 448 at 471–2 per Lord Hatherley; Tyrrell v Painton [1894] P 151 at 156–7 per Lindley LJ, at 158 per A L Smith LJ, at 159–60 per Davey LJ; Wintle v Nye [1959] 1 All ER 552 at 557 per Lord Simonds (‘In all cases the court must be vigilant and jealous’); Vernon v Watson [2002] NSWSC 600; BC200203703 at [2], [3] per Burchett AJ; Trust Company of Australia Ltd v Daulizio [2003] VSC 358; BC200305588 at [5], [6] per Mandie J; Poole v Everall [2016] WTLR 1621; [2016] EWHC 2126 (Ch) at [121] per HHJ David Cooke. 158. As to obligations of lawyers in this context, see 24.21–24.23. 159. See, for example, Wintle v Nye [1959] 1 All ER 552 (involving a will drafted by a solicitor who was nominated sole executor and who took a major benefit thereunder; these circumstances, Viscount Simonds remarked, ‘were such as to impose on the [solicitor] as heavy a burden as can well be imagined’ (at 557), which he proved unable to discharge). Cf Dore v Billinghurst [2006] QSC 140;

160. 161. 162. 163. 164. 165.

166.

167. 168. 169. 170.

171.

172. 173.

BC200604315 (where the solicitor, who was appointed executor and substantial beneficiary of the testator’s will, proved able to dispel the suspicious circumstances because the evidence revealed that: (1) the testator had a friendship with the solicitor and had few close relatives, all of whom were financially independent; (2) the testator believed the solicitor had saved his life and that of his wife; (3) two witnesses heard the testator say that he intended to benefit the solicitor under his will; (4) a witness saw the testator read the will twice; and (5) the solicitor gave the testator a copy of the will to keep); Howroyd v Howroyd (2011) 9 ASTLR 231; [2011] TASSC 73; BC201110547 (where a lawyer who drafted a bedside will for his uncle was able to dispel the suspicion stemming from receiving a greater benefit under the will than a previous will). Burns v Burns [2016] WTLR 755; [2016] EWCA Civ 37 at [53] per McCombe LJ, with whom Treacy and Longmore LJJ concurred. [2010] VSC 237; BC201003700. Able Australia Services v Yammas [2010] VSC 237; BC201003700 at [99]–[107]. (1922) 18 Tas LR 10. (1918) 25 CLR 528; BC1800001. For example, compare Tanner v Public Trustee [1973] 1 NZLR 68 (where the fact that the testator, an elderly woman, relied on the plaintiff-drafter alone without independent advice and had complete trust and confidence in him, that there was nothing in her handwriting, or signed or even initialled by her, verifying the instructions said to have been given by her, and that the plaintiff retained the will, led Macarthur J, with whom Richmond J agreed, to view as raising ‘a high degree of suspicion’, which the plaintiff proved unable to dispel: at 87; Turner P delivered a concurring judgment) with Clocchiatti v Pierobon [2014] NSWSC 488; BC201403030 (where although the sole beneficiary of the will (C) drafted the deceased’s will, which substantially departed from the superseded will, the fact that the deceased had no close family, had a longstanding association with C, and had been the beneficiary of C’s ongoing care, companionship and assistance for over the decade preceding his death, led White J to conclude that the suspicious circumstances surrounding the will had been dispelled). Tyrrell v Painton [1894] P 151 at 157 per Lindley LJ (noting that the relevant principle ‘extends to all cases in which circumstances exist which excite the suspicion of the Court’; the case involved the preparation of a will by the son of a person who took a substantial benefit thereunder); Tanner v Public Trustee [1973] 1 NZLR 68 at 73 per Macarthur J; McKinnon v Voigt [1998] 3 VR 534 at 556; BC9706054 per Tadgell JA, with whom Phillips JA agreed (‘The principle is the same whatever be the facts and circumstances which create the suspicion’). (1892) 18 VLR 739. [1928] P 162. [1998] 3 VR 543; BC9706054. McKinnon v Voigt [1998] 3 VR 543 at 558; BC9706054. See also Roos v Karpenkow (1998) 71 SASR 497; BC9803311 (another case where the circumstances, in combination, raised suspicious circumstances but these were able to be dispelled). McKinnon v Voigt [1988] 3 VR 543 at 562; BC9706054 per Ormiston JA. See also Re R (deceased) [1951] P 10 at 18 per Willmer J (emphasising the need for the allegations to be connected with the preparation and execution of the will). Thompson v Bella-Lewis [1997] 1 Qd R 429 at 451; BC9600828 per McPherson JA (dissenting but not on this particular point). In the Estate of Musgrove [1927] P 264 (the English Court of Appeal finding sufficient internal evidence to show that the deceased knew and approved of the contents of the will at the time of its execution).

174. 175. 176. 177. 178. 179.

180.

181. 182. 183. 184.

185. 186. 187. 188. 189.

190.

Tanner v Public Trustee [1973] 1 NZLR 68 at 85 per MacArthur J. Vernon v Watson [2002] NSWSC 600; BC200203703 at [23] per Burchett AJ. [1998] 3 VR 534; BC9706054, as to which see 2.31. McKinnon v Voigt [1998] 3 VR 534 at 563; BC9706054. His Honour dissented as to whether there should be an order for a re-trial, but on this issue differed only as to matters of emphasis. Roberston v Smith [1998] 4 VR 165 at 174; BC9707401. See, for example, Fincham v Edwards (1842) 3 Curt 63; 163 ER 656; Re Axford (deceased) (1860) 1 Sw & Tr 540; 164 ER 851; Christian v Intsiful [1954] 1 WLR 253. Cf Smith v Hayler [1999] NSWSC 1282; BC9908515 (where the evidence revealed that, in the case of a blind testator, there had been no attestation or other sufficient basis for assuming that the altered will had been read to him, where in the circumstances the complexity of the alteration was one requiring that it be read to the testator for it to be sufficiently established that he knew and approved the will). See, for example, Veall v Veall (2015) 46 VR 123; [2015] VSCA 60; BC201502640 (where the fact that the testator’s will radically departed from prior wills, and its contents were inconsistent with another version of his estate that the testator expressed at the time, coupled with evidence that the testator, who was aged and infirm when the will was executed, was confused about his assets and their division between his children, raised suspicious circumstances that proved incapable of being dispelled: see at [199] per Santamaria JA, with whom Beach and Kyrou JJA concurred). This may also give rise to questions over the testator’s mental capacity at the time of making the most recent will: see, for example, In the Will of Severs (deceased) (1887) 13 VLR 572. As to questions of capacity, see 2.2–2.20. Re Estate of McDonald [2015] NSWSC 1610; BC201510487 at [41] per White J. See, for example, Burnside v Mulgrew [2007] NSWSC 550; BC200705870; Ortner v Mewjork [2009] NSWSC 1381; BC200911508. McKinnon v Voigt [1998] 3 VR 534 at 558; BC9706054 per Tadgell JA, with whom Phillips JA agreed. Cf at 561–2 per Ormiston JA. See, for example, Public Trustee v McKeon (1917) 17 SR (NSW) 157 (where Street J acceded to an application for revocation of probate granted to a will prepared by the sole executor and sole beneficiary of the illiterate testator which was witnessed by two minors, one of them the executor’s son, in view of what he perceived as an atmosphere of unquelled suspicion surrounding the execution of the will; it was accordingly unnecessary, he reasoned, to separately consider the additional allegation of forgery). (1875) LR 7 HL 448 at 472. Re Nickson [1916] VLR 274 at 281 per A’Beckett J; McKinnon v Voigt [1998] 3 VR 543 at 552; BC9706054 per Tadgell JA; Robertson v Smith [1998] 4 VR 165 at 173; BC9707401 per Tadgell JA. Fuller v Strum [2002] 2 All ER 87; [2001] EWCA Civ 1879 at [33] per Peter Gibson LJ. Fuller v Strum [2002] 2 All ER 87; [2001] EWCA Civ 1879 at [65] per Chadwick LJ. Nock v Austin (1918) 25 CLR 519 at 528; BC1800001 per Isaacs J; McKinnon v Voigt [1998] 3 VR 543 at 564; BC9706054 per Ormiston JA; Fuller v Strum [2002] 2 All ER 87; [2001] EWCA Civ 1879 at [70]–[72] per Chadwick LJ. It follows that the statement of principle by the High Court in Worth v Clashom (1952) 86 CLR 439 at 453; BC5200490 per Dixon CJ, Webb and Kitto JJ (extracted at 2.17) is equally applicable to suspicious circumstances cases. Tanner v Public Trustee [1973] 1 NZLR 68 at 88 per Turner P; Fuller v Strum [2002] 2 All ER 87; [2001] EWCA Civ 1879 at [36] per Peter Gibson LJ (citing as an example where a solicitor, who has been instructed to draft a will, obtains the deceased’s approval of the draft but subsequently before execution adds a clause without drawing it to the attention of the testator and keeps the executed

will). 191. Fuller v Strum [2002] 2 All ER 87; [2001] EWCA Civ 1879 at [36] per Peter Gibson LJ. 192. Hall v Hall (1868) LR 1 P & D 481 at 482 per Sir J P Wilde (‘A testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else’s’); Jeffery v Jeffery [2013] WTLR 1509; [2013] EWHC 1942 (Ch) at [238] per Vos J (‘The testator has to be shown, in effect, to have reached a position where she might have said or thought: “this is not my wish but I must do it”. The facts must be inconsistent with any other hypothesis’). 193. See, for example, Winter v Crichton (1991) 23 NSWLR 116 at 121–2 per Powell J; Revie v Druitt [2005] NSWSC 902; BC200506912 at [51]–[54] per Windeyer J; Trustee for the Salvation Army (NSW) Property Trust v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136; BC200704618 at [62]–[69] per Ipp JA, with whom Mason P and McColl JA concurred; Thomas v Nash (2010) 107 SASR 309; [2010] SASC 153; BC201003372 at [78]–[80] per Doyle CJ; Carney v Hall (2011) 111 SASR 424; [2011] SASC 207; BC201110131 at [19], [20] per White J (aff’d Hall v Carney (2012) 281 LSJS 52; [2012] SASCFC 76; BC201204519). 194. (1885) LR 11 PD 81 at 82–3 (paragraph breaks omitted). 195. Hall v Hall (1868) LR 1 P & D 481 at 482. See also Williams v Goude (1828) 1 Hagg 577 at 581; 162 ER 682 at 684 per Sir John Nicoll (‘The influence to vitiate an act must amount to force and coercion destroying free agency — it must not be the influence of affection and attachment — it must not be the mere desire of gratifying the wishes of another; for that would be a very strong ground in support of a testamentary act: further, there must be proof that the act was obtained by this coercion — by importunity which could not be resisted: that it was done merely for the sake of peace, so that the motive was tantamount to force and fear’). 196. Boyse v Rossborough (1857) 6 HLC 2 at 48–9; 10 ER 1192 at 1211 per Lord Cranworth LC. 197. Ridge v Rowden (SC(NSW), Santow J, 10 April 1996, unreported) BC9601342 at 12; Nicholson v Knaggs [2009] VSC 64; BC200900993 at [149] per Vickery J; Petrovski v Nasev [2011] NSWSC 1275; BC201110962 at [276] per Hallen AsJ (‘What may not constitute undue influence in the case of a person with a strong will and ordinary fortitude, may constitute undue influence in the case of a more susceptible individual’). 198. Boyce v Bunce [2015] NSWSC 1924; BC201512485 at [48] per Lindsay J. 199. Boyce v Bunce [2015] NSWSC 1924; BC201512485 at [60] per Lindsay J (referring to judicial statements about the court being under a duty, or at least at liberty, to investigate the circumstances of a case independently of allegations and counter-allegations of particular parties who appear before it (see 11.4) and in recognised departures in probate cases from the ordinary ‘costs follow the event’ rule in civil litigation (see 23.2–23.9)). 200. Bridgewater v Leahy (1998) 194 CLR 457 at 493; BC9805443 per Gaudron, Gummow and Kirby JJ; Dunbar Bank plc v Nadeem [1998] 3 All ER 876 at 883 per Millett LJ; Liptak v Commonwealth Bank of Australia [1999] ANZ Conv R 119; BC9805098 at 122–3 per Doyle CJ; Boyce v Bunce [2015] NSWSC 1924; BC201512485 at [44], [45] per Lindsay J. 201. See generally Dal Pont, Ch 7; Meagher, Gummow and Lehane, Ch 15. 202. Parfitt v Lawless (1872) LR 2 P & D 462 at 468–70 per Lord Penzance; Craig v Lamoureux [1920] AC 349 at 356–7 per Viscount Haldane (PC); Winter v Crichton (1991) 23 NSWLR 116 at 121–2 per Powell J; Thompson v Foy [2010] 1 P & CR 16; [2009] EWHC 1076 (Ch) at [101] per Lewison J (‘it is highly unlikely on the facts that the court would ever be justified in finding that undue influence consisted both of coercion and abuse of trust and confidence. People do not usually trust those who coerce them’); Thomas v Nash (2010) 107 SASR 309; [2010] SASC 153; BC201003372 at [79] per Doyle CJ; Boyce v Bunce [2015] NSWSC 1924; BC201512485 at [54]–[57] per Lindsay J; Drummond

203. 204. 205. 206. 207. 208.

209. 210. 211. 212. 213.

214. 215. 216.

217.

v Davidson [2016] NZHC 1888; BC201662050 at [195] per Dunningham J (but opining that the factors that give rise to a presumption of undue influence inter vivos ‘will, in any event, be important factors to be considered by the Court in determining whether undue influence was actually exercised in the case of a testamentary disposition’). See M Tyson, ‘An Analysis of the Differences between the Doctrine of Undue Influence with Respect to Testamentary and Inter Vivos Dispositions’ (1997) 5 APLJ 38. Re Teddy [1940] SASR 354 at 358 per Napier J. McKinnon v Voigt [1998] 3 VR 543 at 562; BC9706054 per Ormiston JA. (1857) 6 HLC 2 at 51; 10 ER 1192 at 1212. Schrader v Schrader [2013] WTLR 701; [2013] EWHC 466 (Ch) at [96] per Mann J. Winter v Chichton (1991) 23 NSWLR 116 at 122 per Powell J; Hayden v Simeti (HC(NZ), Fisher J, 14 May 1993, unreported) at 12 (‘it is not enough to show that others had the means and opportunity to unduly influence the deceased and that there has been a recent testamentary disposition in their favour. The Court must be satisfied both that the power was exercised and that the will would not have resulted but for that exercise’); Mahon v Mahon [2016] NZCA 642 at [66] per Winkelmann J, delivering the reasons of the court. Nicholson v Knaggs [2009] VSC 64; BC200900993 at [116] per Vickery J. [2009] VSC 64; BC200900993 at [119]. Nicholson v Knaggs [2009] VSC 64; BC200900993 at [119]. Nicholson v Knaggs [2009] VSC 64; BC200900993 at [127]. As the allegation of undue influence is a serious one, in jurisdictions that have enacted the uniform evidence law a court is statutorily entitled to take into account the gravity of the matters alleged when deciding if a case has been proved: Evidence Act 2011 (ACT) s 140(2)(c); Evidence Act 1995 (NSW) s 140(2)(c); Evidence (National Uniform Legislation) Act 2011 (NT) s 140(2)(c); Evidence Act 2001 (Tas) s 140(2)(c); Evidence Act 2008 (Vic) s 140(2)(c). The same is, in any event, the upshot of case authority at general law: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; BC3800027 per Dixon J; Schomberg v Taylor [2013] WTLR 1413; [2013] EWHC 2269 (Ch) at [31] per Mark Cawson QC (noting that as allegations of undue influence are serious, coupled with an inherent improbability about them having happened or occurred, there is a need for cogent evidence in support of the allegation before the court can be satisfied that the allegation is made out). See Parfitt v Lawless (1872) LR 2 PD 462 at 469–70 per Lord Penzance. P Ridge, ‘Equitable Undue Influence and Wills’ (2004) 120 LQR 617 at 627–34. As to family provision statutory regimes, see Part III. P Hallen, ‘Note’ (1992) 66 ALJ 538 at 539. Cf F Burns, ‘Elders and Testamentary Undue Influence in Australia’ (2005) 28 UNSWLJ 145 at 153–4 (who identifies two nineteenth century New South Wales cases where testamentary undue influence has been proven, namely Buckley v Millar (1869) 8 SCR (Eq) 74 and Callaghan v Myers (1880) 1 NSWR 351, but notes that by the 1890s it is likely those cases would have been decided differently). See, for example, Petrovski v Nasev [2011] NSWSC 1275; BC201110962 (involving a late amendment to a will found to have been produced by a threat of court action unless the amendment was made and consequent demands for the amendment, in the context of a testator with limited physical and mental strength); Schrader v Schrader [2013] WTLR 701; [2013] EWHC 466 (Ch) (where Mann J was influenced in so ruling by findings, inter alia, that the testatrix was aged and vulnerable, and depended heavily on the alleged influencer (her son, N), whose forceful physical and emotional presence was exacerbated by a view that he had not been treated fairly vis-à-

218.

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220.

221. 222.

223.

224.

225. 226.

227.

vis his brothers: at [97]); Schomberg v Taylor [2013] WTLR 1413; [2013] EWHC 2269 (Ch) (where the testatrix, who was in a very fragile physical and mental state, was subjected to unwanted pressure in making the new will that fundamentally altered her testamentary dispositions: at [107]–[110] per Mark Cawson QC). Revie v Druitt [2005] NSWSC 902; BC200506912 at [54] per Windeyer J; Revie v Druitt [2005] NSWSC 965; BC200507223 at [14] per Windeyer J; Boyce v Bunce [2015] NSWSC 1924; BC201512485 at [110] per Lindsay J. See, for example, New South Wales Law Reform Commission, Wills — Execution and Revocation, LRC 47, 1986, 8.31–8.35; VLRC, 2013, pp 15–20 (albeit that neither report makes any wholesale recommendation to broaden probate undue influence). The latter report drew attention to the Wills, Estate and Succession Act 2009 (BC) s 52, which shifts the onus of proof to the defender of the will in undue influence challenges once the challenger has shown that the will-maker was in a relationship of dependency with the person alleged to have exerted undue influence, or one in which the potential for domination of the will-maker existed: see British Columbia Law Institute, Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide, BCLI Report No 61, October 2011. The Victorian report recommended that the operation of this provision be kept under active review for 4 years with a view to its adoption in Victoria being further considered. See, for example, R Kerridge, ‘Wills made in Suspicious Circumstances, the Problem of the Vulnerable Testator’ [2000] CLJ 310; P Ridge, ‘Equitable Undue Influence and Wills’ (2004) 120 LQR 617; F Burns, ‘Elders and Testamentary Undue Influence in Australia’ (2005) 28 UNSWLJ 145; L Mason, ‘Undue Influence and Testamentary Disposition: An Equitable Jurisdiction in Probate Law?’ [2011] Conv 115; R Kerridge, ‘Undue Influence and Testamentary Dispositions: A Response’ [2012] Conv 129. See, for example, R Kerridge, ‘Wills made in Suspicious Circumstances, the Problem of the Vulnerable Testator’ [2000] CLJ 310 at 332–3. See, for example, P Ridge, ‘Equitable Undue Influence and Wills’ (2004) 120 LQR 617; B Hamilton, ‘The Doctrine of Unconscionable Bargains in Equity: Potent Sword for Estate Lawyers’ (2007) 27 Qld Lawyer 180 (who argues that equitable doctrines should be applied in estate cases because the burden of proof with the estate doctrine makes it too difficult to prove undue influence); G Harrison, ‘Undue Influence’ [2010] NZLJ 313 (who argues that a unified approach ought to apply, and that the equitable doctrine ought to apply to both testamentary and nontestamentary dispositions). See, for example, L Mason, ‘Undue Influence and Testamentary Disposition: An Equitable Jurisdiction in Probate Law?’ [2011] Conv 115. Contra R Kerridge, ‘Undue Influence and Testamentary Dispositions: A Response’ [2012] Conv 129. See, for example, F Burns, ‘Elders and Testamentary Undue Influence in Australia’ (2005) 28 UNSWLJ 145 at 164–70 (suggesting a strict legislative regime with respect to the execution of wills by very old testators, coupled with a modified doctrine of testamentary undue influence to take into account elders’ susceptibility to undue influence); J Meredith, ‘Miami Advice or California Dreaming: A Statutory Presumption of Testamentary Undue Influence in Australia?’ (2011) 31 Qld Lawyer 170 (favouring a legislated presumption of testamentary undue influence). [1998] 1 NZLR 661. By way of dicta, the trial judge lamented that ‘the prophylactic benefit of the presumption [of undue influence], imposed for sound reasons of public policy, is not available in the case of testamentary dispositions’: Norton v Carey (HC(NZ), Elias J, 1 July 1996, unreported) at 53. Nicholson v Knaggs [2009] VSC 64; BC200900993 at [150] (although his Honour conceded that

228.

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232.

233.

234.

235. 236.

237. 238.

239. 240. 241. 242.

‘more often than not an intention to bring about a desired result which is contrary to the true will of a testator will be present in cases where conduct amounting to undue influence is found’). As suggested by P Ridge, ‘Equitable Undue Influence and Wills’ (2004) 120 LQR 617, but challenged by R Kerridge, ‘Undue Influence and Testamentary Dispositions: A Response’ [2012] Conv 129. See Carney v Hall (2011) 111 SASR 424; [2011] SASC 207; BC201110131 at [22]–[31] per White J (aff’d Hall v Carney (2012) 281 LSJS 52; [2012] SASCFC 76; BC201204519); Boyce v Bunce [2015] NSWSC 1924; BC201512485 at [116] per Lindsay J (viewing the ‘suspicious circumstances rule’ as ‘capable of having a close affinity with equity’s principles relating to undue influence’, adding that ‘[t]o some extent, perhaps irregularly, it performs a function in the service of the probate jurisdiction similar to that served by the concept of undue influence in the equity jurisdiction’). As to the requirement for knowledge and approval by the testator, see 2.27, 2.28. Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285; BC201209697 at [55] per Meagher JA, with whom Basten and Campbell JJA concurred. Allen v M’Pherson (1847) 1 HLC 191 at 209; 9 ER 727 at 736 per Lord Lyndhurst (‘It is perfectly clear that the Ecclesiastical Court may admit a part of an instrument to probate, and refuse it as to the rest’); Re Nickson (deceased) [1916] VLR 274 at 282 per A’Beckett J. Allen v M’Pherson (1847) 7 HLC 191 at 214; 9 ER 727 at 737 per Lord Lyndhurst (from which it appears that, if the will is admitted to probate, equity can only intervene if an appeal against admittance has been successful); Betts v Doughty (1879) LR 5 PD 26. As an allegation of fraud is a serious one, in jurisdictions that have enacted the uniform evidence law a court is statutorily entitled to take into account the gravity of the matters alleged when deciding if a case has been proved: Evidence Act 2011 (ACT) s 140(2)(c); Evidence Act 1995 (NSW) s 140(2)(c); Evidence (National Uniform Legislation) Act 2011 (NT) s 140(2)(c); Evidence Act 2001 (Tas) s 140(2)(c); Evidence Act 2008 (Vic) s 140(2)(c). See also, independently of the uniform evidence law, the remarks of Lord Nicholls in Re H (Minors) [1996] AC 563 at 586 and Tagdell JA in Robertson v Smith [1998] 4 VR 165 at 175; BC9707401. Guardhouse v Blackburn (1866) LR 1 P & D 109 at 116 per Sir J P Wilde; Rhodes v Rhodes (1882) 7 App Cas 192 at 198 per Lord Blackburn (PC) (‘When an instrument purporting to be the will of the deceased person has been executed by the deceased in the proper manner, but it is sufficiently proved that though he executed the instrument, yet that from fraud he executed that which was not his will there is no difficulty in pronouncing that the instrument is not his will’). Veall v Veall (2015) 46 VR 123; [2015] VSCA 60; BC201502640 at [197] per Santamaria JA, with whom Beach and Kyrou JJA concurred. See, for example, Barry v Butlin (1838) 2 Moo PC 480 at 491; 12 ER 1089 at 1090 per Parke B; Boyse v Rossborough (1857) 6 HLC 2 at 48; 10 ER 1192 at 1211 per Lord Cranworth LC; Low v Guthrie [1909] AC 278 at 283 per Lord James. Trustee for the Salvation Army (NSW) Property Trust v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136; BC200704618 at [65] per Ipp JA, with whom Mason P and McColl JA concurred. Kennell v Abbott (1799) 4 Ves 802 at 809; 31 ER 416 at 419. See also Giles v Giles (1836) 1 Keen 685 at 692–3; 48 ER 471 at 474 per Lord Langdale MR; Rishton v Cobb (1839) 5 My & Cr 145; 41 ER 326; In the Estate of Posner (deceased) [1953] P 277 at 279–81 per Karmiski J. Kennell v Abbott (1799) 4 Ves 802 at 808–9; 31 ER 416 at 419. [1929] SASR 262. Re Kelly [1929] SASR 262 at 267. (1866) LR 2 Eq 319.

243. Allen v M’Pherson (1847) 1 HLC 191 at 207; 9 ER 727 at 735 per Lord Lyndhurst. 244. Unreported, but referred to by Lord Lyndhurst in Allen v M’Pherson (1847) 1 HLC 191 at 208–9; 9 ER 727 at 735. 245. (1857) 6 HLC 2 at 49; 10 ER 1192 at 1211. 246. The process of forensic document examination is reviewed by R F Croucher and J S Croucher, ‘Forgeries and Wills — A Probate Problem’ (2010) 18 APLJ 1 at 2–7. 247. [1999] NSWSC 13; BC9900125. Cf Re Estate of Pozniak [2005] NSWSC 766; BC200505706. 248. Being, for example, an allegation made in Thompson v Bella-Lewis [1997] 1 Qd R 429; BC9600828. 249. (1875) LR 7 HL 448 at 463. 250. [1998] 4 VR 165; BC9707401. 251. Robertson v Smith [1998] 4 VR 165 at 180; BC9707401. 252. Robertson v Smith [1998] 4 VR 165 at 180; BC9707401. 253. Robertson v Smith [1998] 4 VR 165 at 181; BC9707401. 254. Allen v M’Pherson (1847) 1 HLC 191 at 209; 9 ER 727 at 735 per Lord Lyndhurst; Re Nickson (deceased) [1916] VLR 274 at 282 per A’Beckett J; Osborne v Smith (1960) 105 CLR 153 at 159; BC6000780 per Kitto J. 255. [1998] 4 VR 165; BC9707401, discussed at 2.53. 256. As to the equitable doctrine of rectification, see Dal Pont, pp 1094–109; Meagher, Gummow and Lehane, Ch 26. 257. Harter v Harter (1873) LR 3 P & D 11; Brand v Adams (1998) 51 BCLR (3d) 333. This did not preclude Fisher J in Re Jensen [1992] 2 NZLR 506 at 511–12 advocating an extension of the equitable doctrine to the testamentary environment and, more recently, Lord Neuberger in Marley v Rawlings [2015] AC 129; [2014] UKSC 2 at [28] opining that, as a matter of common law, it should be open to a judge to rectify a will in the same way as any other document (though conceding that it was unnecessary to consider that point further in view of statutory intervention); see also Law Reform Committee, Nineteenth Report — Interpretation of Wills, May 1973, HMSO, Cmnd 5301, pp 8–13; J K Maxton, ‘Rectification of Wills: A Case for Reform’ [1984] NZLJ 142 (both advocating the same thing). Statute has now provided for rectification of wills in the United Kingdom and New Zealand: Administration of Justice Act 1982 (UK) s 20; Wills Act 2007 (NZ) s 31. 258. See 2.75. 259. See New South Wales Law Reform Commission, Wills — Execution and Revocation, LRC 47, 1986, Ch 7. 260. [1923] P 46 at 53–4. 261. [1893] P 1. 262. Perpetual Trustee Company v Williamson (1929) 29 SR (NSW) 487 at 490 per Harvey CJ in Eq (‘where the draftsman is doing the merely ministerial act of copying what he thinks the testatrix has written in her instructions if the mistake is proved and the mistake had not been brought to the notice of the testatrix, I think the word inserted in error must be omitted from the probate’; on the facts, however, the case did not fall within this principle). See, for example, Vaughan v Clerk (1902) 87 LT 144 (involving the inclusion of a word by clerical error); Re Cogan (deceased) (1912) 31 NZLR 1204 (involving the omission of words as a result of clerical error). 263. A phrase originating in the judgment of Bacon VC in Re Redfern (1877) 6 Ch D 133 at 138. 264. Guardhouse v Blackburn (1866) LR 1 P & D 109 at 116–17 per Sir J P Wilde. 265. [1972] Fam 33. 266. Allen v M’Pherson (1847) 1 HLC 191; 9 ER 727. 267. Re Morris [1971] P 62 at 80 per Latey J. See, for example, In the Goods of Duane (1862) 2 Sw & Tr

268.

269. 270. 271. 272.

273. 274. 275. 276.

277.

278. 279. 280. 281. 282. 283. 284. 285. 286.

590; 164 ER 1127; Fulton v Andrew (1875) LR 7 HL 448 (where a residuary bequest was introduced into a will without the knowledge and authority of the testator, the clause containing that bequest was rejected); Morrell v Morrell (1882) LR 7 PD 68 at 70 (where the President included the following in his address to the jury: ‘There is a … class of mistake … where words are inserted of which the testator knows nothing. To take a familiar instance, suppose people about the testator at the time of his death take his instructions to leave his property to certain persons and fraudulently introduce into the will their own names instead, and say, “I leave to Tom Smith, £10” &c, and never read that to him. In that case you may strike out the passage, because he did not know it was there or intend that it should be, and therefore it was not his will in any sense of the word’); In the Goods of Schott [1901] P 190. See, for example, Guardhouse v Blackburn (1866) LR 1 P & D 109 (where Sir J P Wilde refused to exclude from probate certain words that were not in accordance with the instructions given by the testator to her solicitor, which had been read over to and approved by her). As to the presumption of knowledge and approval, see 2.27, 2.28. Re Horrocks (deceased) [1939] P 198 at 219 per Greene MR. (1873) LR 3 P & D 11 at 21. [1939] P 198. The term ‘benevolent’, for this purpose, has been interpreted as potentially falling outside the legal concept of ‘charity’: see, for example, Chichester Diocesan Fund and Board of Finance Inc v Simpson [1944] AC 341. In most Australian jurisdictions, as well as in the United Kingdom, statute has been enacted to vest in the court a power to validate (or ‘save’) gifts that exhibit a substantial charitable flavour but fail the technicalities of charity law: see G E Dal Pont, Law of Charity, 2nd ed, LexisNexis Butterworths, Australia, 2017, pp 315–22. Re Horrocks (deceased) [1939] P 198 at 217–19 per Greene MR. Osborne v Smith (1960) 105 CLR 153 at 162; BC6000780 per Kitto J. See, for example, Harter v Harter (1873) LR 3 P & D 11; In the Goods of Schott [1901] P 190; Re Reynette-James (deceased) [1975] 3 All ER 1037. Guardhouse v Blackburn (1866) LR 1 P & D 109 at 116 per Sir J P Wilde; Harter v Harter (1873) LR 3 P & D 11 at 19 per Sir J Hannen (‘it has not been suggested that the Court can admit to probate any words not contained in some duly attested testamentary document, however cogent the evidence may be, from oral or written instructions, that they were intended to be part of the will’). Guardhouse v Blackburn (1866) LR 1 P & D 109 at 117 per Sir J P Wilde (‘If a statute require that a thing should be in writing and signed, in order to its validity, it precludes the Court from giving effect to parol testimony of that which is required to be so written and signed’). Rhodes v Rhodes (1882) 7 App Cas 192 at 198 per Lord Blackburn (PC). [1969] VR 764. Osborne v Smith (1960) 105 CLR 153 at 161; BC6000780 per Kitto J. [1891] P 247. In the Goods of Boehm [1891] P 247 at 250–1. A point observed by Greene MR in Re Horrocks (deceased) [1939] P 198 at 219–20 in an attempt to downplay the decision. See, for example, the remarks of Templeman J in Re Reynette-James (deceased) [1975] 3 All ER 1037 at 1043. See QLRC, MP 29, pp 59–61. See also VLRC, 1994, pp 161–6. In England it has been held that it is not essential that a document satisfy the formal statutory wills requirements before it can be treated as a ‘will’ that is capable of being rectified pursuant to

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288. 289. 290.

291.

292. 293.

294. 295. 296. 297. 298. 299.

statutory jurisdiction: Marley v Rawlings [2015] AC 129; [2014] UKSC 2 at [60]–[66] per Lord Neuberger, with whom Lords Clarke, Sumption and Carnwath agreed (reasoning that (at [62]) the alternative view ‘takes away much of the beneficial value’ of the section, and that if the section ‘could not be invoked to rectify a document which was currently formally invalid into a formally valid will, that would cut down its operation for no apparently sensible reason’). The need to probe this point in Australian law is obviated by the existence of a judicial power to dispense with wills formalities, which English law lacks: see 4.30–4.52. This has prompted two English commentators to query whether the English Parliament intended this outcome, against a backdrop of refusal to introduce a dispensing power: H Cumber and C Kynaston, ‘Where There’s a Will There’s a Way: Marley v Rawlings’ (2014) 25 KLJ 137 at 138. NSW s 27(1); NT s 27(1); Qld s 33(1); Tas s 42(1); Vic s 31(1); WA s 50(1). Equivalent provision is found in New Zealand (Wills Act 2007 (NZ) s 31(1), as recommended by the New Zealand Law Commission, Succession Law — A Succession (Wills) Act, NZLC R41, October 1997, pp 44–7), Alberta (see Wills and Succession Act 2010 (Alta) s 39, as recommended by the Alberta Law Reform Institute, Wills and the Legal Effects of Changed Circumstances, Final Report, No 98, August 2010, Ch 6) and British Columbia (see Wills, Estates and Succession Act 2009 (BC) s 59, as recommended by the British Columbia Law Institute, Wills, Estates and Succession: A Modern Legal Framework, BCLI Report No 45, June 2006, pp 36–9). It has also been recommended, but to date not implemented, in Manitoba: Manitoba Law Reform Commission, Wills and Succession Legislation, Report No 108, 2003, pp 54–7. Namely Administration of Justice Act 1982 (UK) s 20, as to which see R Kerridge and A Brierley, ‘Mistakes in Wills: Rectify and be Damned’ [2003] CLJ 750. [1996] Ch 171 at 180. Marley v Rawlings [2015] AC 129; [2014] UKSC 2 at [75]–[79] per Lord Neuberger, with whom Lords Clarke, Sumption and Carnwath agreed (noting that while the phrase ‘clerical error’ can attract a narrow meaning (limited to mistakes involved in copying or writing out a document, and would not include a mistake of the type that occurred in this case), in this context it should carry a wider meaning, ‘namely a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending, organising the execution of, a document (save, possibly, to the extent that the activity involves some special expertise)’: at [75]). Bell v Georgiou [2002] WTLR 1105 at [8] per Blackburne J, described by Lord Neuberger in Marley v Rawlings [2015] AC 129; [2014] UKSC 2 at [71] as the best judicial summary of the term. See also Wordigham v Royal Exchange Trust Co Ltd [1992] Ch 412 at 419 per Evans-Lombe QC (defining a ‘clerical error’ to mean ‘an error made in the process of recording the intended words of the testator in the drafting or transcription of his will’). Re Williams (deceased) [1985] 1 All ER 964 at 969 per Nicholls J. As in Re Segelman (deceased) [1996] Ch 171 (where the solicitor-drafter, on his own initiative, inserted a proviso in the testator’s will that he failed to realise was rendered inappropriate by the testator’s subsequent instructions). Re Segelman (deceased) [1996] Ch 171 at 186 per Chadwick J; McCorley v Pakleppa [2005] QSC 83; BC200502303 at [6] per Fryberg J; Re Estate of McLennan [2011] QSC 331; BC201108579. Pengelly v Pengelly [2008] Ch 375; [2007] EWHC 3227 (Ch) at [23] per Judge Hodge QC. Kell v Jones [2013] WTLR 507 at [36], [37] per HHJ Cooke. [2015] AC 129; [2014] UKSC 2 at [72], [73], with whom Lords Clarke, Sumption and Carnwath agreed (paragraph break omitted). As to the dispensing power, see 4.30–4.52. B Häcker, ‘Thy Will be Done’ (2014) 130 LQR 360 at 360. See also H Cumber and C Kynaston,

300. 301.

302. 303. 304. 305.

306. 307. 308. 309. 310.

311.

312. 313.

‘Where There’s a Will There’s a Way: Marley v Rawlings’ (2014) 25 KLJ 137 at 139 (remarking that this wide interpretation extends the category ‘to cover almost any extra-textual mistake in the preparation of wills’). R D Turnbull, ‘Wills: Rectification’ (2014) 88 ALJ 718 at 720. Public Trustee of Queensland v Smith [2009] 1 Qd R 26; [2008] QSC 339; BC200811481 at [47] per Atkinson J (suggesting a four-pronged approach to construing the relevant section, in terms not dissimilar to those proffered by Chadwick J in Re Segelman (deceased) [1996] Ch 171 at 180); Vescio v Bannister (2010) 3 ASTLR 619; [2010] NSWSC 1274; BC201008289 at [12]–[15] per Barrett J; Lawler v Herd [2010] QSC 281; BC201005435 (where Fryberg J remarked that the statutory rectification power requires a demonstration not only that the will does not give effect to the testator’s intentions, but also what those intentions were); Palethorpe v Public Trustee of Queensland (2011) 5 ASTLR 280; [2011] QSC 335; BC201108582 at [15]–[20] per Philippides J. Re Estate of Nies (deceased) [2014] SASC 93 at [10] per Gray J. See Estate of Dippert [2001] NSWSC 167; BC200101168 at [20], [21] per Young J; ANZ Trustees Ltd v Hamlet [2010] VSC 207; BC201003237 at [3]–[5] per Pagone J. See Lockrey v Ferris (2011) 8 ASTLR 529; [2011] NSWSC 179; BC201101516 at [36] per Hallen AsJ (by reference to the civil procedure reforms introduced by the Civil Procedure Act 2005 (NSW)). Public Trustee of Queensland v Smith [2009] 1 Qd R 26; [2008] QSC 339; BC200811481 at [64] per Atkinson J; Palethorpe v Public Trustee of Queensland (2011) 5 ASTLR 280; [2011] QSC 335; BC201108582 at [22] per Philippides J. Adopting the terminology used in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; BC3800027 per Dixon J. Evidence Act 2011 (ACT) s 140; Evidence Act 1995 (NSW) s 140; Evidence (National Uniform Legislation) Act 2011 (NT) s 140; Evidence Act 2001 (Tas) s 140; Evidence Act 2008 (Vic) s 140. [2002] NSWSC 849; BC200205592 at [31]. See, for example, Trimmer v Lax (SC(NSW), Hodgson J, 9 May 1997, unreported) BC9702254 at 12–13; Re Estate of Dippert [2001] NSWSC 167; BC200101168 at [34] per Young J. Re Estate of Nolan [2004] NSWSC 1191; BC200408604 at [25] per Young CJ in Eq (citing the example of a line being omitted in the engrossment of a will or a ‘not’ sneaking into or out of the text by mistake). See Marley v Rawlings [2015] AC 129; [2014] UKSC 2 at [53] per Lord Neuberger, with whom Lords Clarke, Sumption and Carnwath agreed (who, while accepting the force in the point that the greater the extent of the correction sought, the steeper the task for a claimant who is seeking rectification, saw ‘no reason in principle why a wholesale correction should be ruled out as a permissible exercise of the court’s power to rectify, as a matter of principle’). ACT s 12A(1); SA s 25AA(1). The wording in the text follows the South Australian provision, but its substance is little different from the simpler wording in its Australian Capital Territory counterpart. In any event, it has been judicially cautioned that ‘it may be productive of error in a particular case when determining whether an order should be made under [the section] to pay over much regard to the principles evolved by equity as part of the doctrine of rectification’, given that ‘[p]rimarily the Court is concerned with the meaning of the language of the section’: Mortensen v State of New South Wales (CA(NSW), 9 December 1991, unreported) BC9101347 at 6 per Sheller JA, with whom Mahoney and Meagher JJA agreed. Cf Re Estate of Nolan [2004] NSWSC 1191; BC200408604 at [33] per Young CJ in Eq (who remarked that Sheller JA did not say that the basal concepts of rectification of contracts are to be disregarded, but ‘merely … that one must focus on the words of

314. 315. 316. 317. 318.

319.

320. 321. 322. 323. 324.

325. 326.

327.

328. 329.

the section and not holus-bolus import all the matters that relate to rectification of contracts’). (1998) 71 SASR 1; BC9800378. Meaning ‘in the belly of his or her mother’. Wesley v Wesley (1998) 71 SASR 1 at 3; BC9800378. Wesley v Wesley (1998) 71 SASR 1 at 8; BC9800378. See, for example, Australian Executor Trustees Ltd v Casanova [2005] SASC 93; BC200501264 (where affidavits were admitted from employees of Australian Executor Trustees Ltd, who had taken instructions from the testator). Wesley v Wesley (1998) 71 SASR 1 at 5; BC9800378. Cf Re Estate of Epheser (deceased) (2008) 1 ASTLR 112; [2008] SASC 311; BC20081015 (where Gray J rectified an incomplete homemade will, having been convinced by the evidence of both the alleged beneficiary and, importantly, the independent witnesses to the will, that the will did not express the testator’s true intentions). Wesley v Wesley (1998) 71 SASR 1 at 5–6; BC9800378. Re Estate of Nies (deceased) [2014] SASC 93 at [33] per Gray J. (2011) 112 SASR 117; [2011] SASC 236; BC201109981 at [18]–[20] (paragraph break omitted). As to the revocation of wills by marriage, see 5.23, 5.24. Re Estate of Varley (deceased) (2007) 251 LSJS 461; [2007] SASC 420; BC200710243 at [6] per Debelle J. See, for example, Re Estate of Miller (2002) 223 LSJS 133; [2002] SASC 358; BC200206473 (where the testator owned a number of rural and commercial properties and, because he mistakenly believed when making his will that he had transferred all his interests in the rural properties to a corporate trustee of one of his family trusts (R), he instructed his solicitor to alter his will so as to bequeath his interests in the commercial properties to two of his children; the effect of the will as altered was to devise all his interests in real estate, including his rural property, to those two children; Mullighan J refused an application to rectify the will to include a devise of the rural property to R, as there was no evidence of what the testator’s intention would have been had he been aware that the rural property had not been transferred to R). Then found in Wills, Probate and Administration Act 1898 (NSW) s 29A. Rawack v Spicer [2002] NSWSC 849; BC200205592 at [26] per Campbell J; Long v Long [2004] NSWSC 1002; BC200407231 at [9] per Barrett J (‘the court must be satisfied, according to the balance of probabilities, as to not only a negative proposition (that the testatrix did not intend the will to be in the form it eventually took) but also a positive proposition (that the testatrix intended the will to be in the form for which the plaintiff contends’). Trimmer v Lax (SC(NSW), Hodgson J, 9 May 1997, unreported) BC9702254 at 12 (‘It is not enough for the Court to have the opinion that, if the deceased had considered the possibility, she probably would have provided in favour of [a named beneficiary]. What is required is an actual intention, which has miscarried’); Re Estate of Dippert [2001] NSWSC 167; BC200101168 at [17] per Young J. See, for example, Mortensen v State of New South Wales (CA(NSW), 9 December 1991, unreported) BC9101347 (where the court upheld the decision of Needham J in refusing to rectify a gift in a will to three children of whom the testatrix was particularly fond when one of those children had predeceased the testatrix; as the testatrix had not provided for any gift over should any of those children predecease her, Needham J refused an application to rectify the will by adding ‘or to the survivor of them’ after the name of the last of the three children: Re Estate of Spinks (SC(NSW), Needham J, 22 August 1990, unreported) BC9003281). Re Estate of Spinks (SC(NSW), Needham J, 22 August 1990, unreported) BC9003281 at 5 (aff’d Mortensen v State of New South Wales (CA(NSW), 9 December 1991, unreported) BC9101347). ACT s 12A(2). See C J Rowland, ‘The Construction or Rectification of Wills to take Account of Unforeseen Circumstances Affecting their Operation’ (Pt II) (1993) 1 APLJ 193 at 204–9.

330. See 2.63–2.66. 331. See, for example, In the Goods of FS (1850) 14 Jur 402; In the Goods of Hunt (1875) LR 3 P & D 250; In the Estate of Meyer [1908] P 135 (involving two sisters who executed codicils similar in terms, but by mistake each sister executed the codicil intended for, and purporting to be, that of the other); Re Petchell (deceased) (1945) 46 WALR 62. 332. See, for example, Guardian Trust and Executors Company of New Zealand Ltd v Inwood [1946] NZLR 614 at 623–4 per Fair J (CA) (refusing to follow the strict approach espoused in In the Estate of Meyer [1908] P 135); Re Brander [1952] 4 DLR 688 (SC(BC)); Re Foster (deceased) [1956] NZLR 44; Re Knott Estate (1959) 27 WWR 688 (DC(Alta)); McConagle v Starkey [1997] 3 NZLR 635. 333. Re Estate of Gillepsie (SC(NSW), Powell J, 25 October 1991, unreported). The decision proceeds against the backdrop of the earlier broader iteration of the rectification power in that state (see 2.65). In turn, this explains why Williams J in Re Goward [1997] 2 Qd R 54 at 59–60, dealing with a more confined rectification power, was unwilling to rectify a will in similar circumstances. Nor was his Honour willing to adopt the judicial dispensing power as a vehicle to address the problem, in view of its more restrictive nature in Queensland at the time: at 60. 334. Marley v Rawlings [2015] AC 129; [2014] UKSC 2. 335. In the Estate of Blakely (1983) 32 SASR 473. 336. In the Estate of Blakely (1983) 32 SASR 473 at 480. 337. (2009) 104 SASR 289; [2009] SASC 188; BC200905685. 338. See 4.30–4.32. 339. The same approach has ensued in at least one Canadian jurisdiction: Re McDermid Estate [1995] 1 WWR 366 (QB(Sask)). 340. Re Estate of Hennekam (deceased) (2009) 104 SASR 289; [2009] SASC 188; BC200905685 at [36], [37]. 341. Re Estate of Daly (2012) 8 ASTLR 48; [2012] NSWSC 555; BC201203601; Re Estate of Johnson (deceased) (2014) 11 ASTLR 562; [2014] NSWSC 512; BC201403183. 342. See 8.19, 8.20. 343. Marley v Rawlings [2015] AC 129; [2014] UKSC 2 at [40] per Lord Neuberger, with whom Lords Clarke, Sumption and Carnwath agreed. 344. As to the principles underscoring the construction of wills, see Chapter 8. 345. Meaning ‘out of an excess of caution’. 346. Rawack v Spicer [2002] NSWSC 849; BC200205592 at [25] per Campbell J. See also Application of Spooner (SC(NSW), Hodgson J, 28 July 1995, unreported) BC9505381 at 4–5; Re Estate of Cross (deceased) (SC(NSW), McLelland CJ in Eq, 9 May 1996, unreported) BC9601803 at 10–11; Re Estate of Dippert [2001] NSWSC 167; BC200101168 at [21] per Young J (who stated that, even though theoretically it was possible to include both questions in one summons, evidentiary problems would usually make it appropriate to deal with the matter separately); Long v Long [2004] NSWSC 1002; BC200407231 at [43] per Barrett J (‘the possibility that rectification is not needed does not stand in the way of the making of a rectification order as sought’). See, for example, Public Trustee v Permanent Trustee Co Ltd [2003] NSWSC 556; BC200303409 (where an amendment to a cross-claim so as to delete the claim on construction grounds and to substitute a claim for rectification was acceded to, even though Davies AJ indicated that the construction claim would have been successful and led to the same result). 347. ACT s 12A(3); SA s 25AA(2); Vic s 31(2). 348. NT s 27(2); Qld s 33(2); WA s 50(2). 349. NSW s 27(2); Tas s 42(2).

350. Public Trustee of Queensland v Smith [2009] 1 Qd R 26; [2008] QSC 339; BC200811481 at [42] per Atkinson J (referring to QLRC, MP 29, p 60). 351. NSW s 27(3); Tas s 42(3); Vic s 31(3). 352. NT s 27(4); Qld s 33(3); WA s 50(3). 353. NT s 27(3). 354. Qld s 33(3). 355. WA s 50(3). 356. ACT s 12A(3); SA s 25AA(2). 357. See 17.23–17.44. Cf Re Swain [2008] NSWSC 1343; BC200811094 at [23] per Young CJ in Eq (who expressed ‘very great doubt’ as to whether the test as to what is sufficient cause for a family provision application being late could ‘just be read across’ into the rectification scenario, reasoning that ‘[t]he fact that we are dealing with a public document operating in rem is a very strong distinguishing factor’). 358. See, for example, Rawack v Spicer [2002] NSWSC 849; BC200205592 (where Campbell J extended time where the delay had been ‘well explained’ by ongoing attempts to settle the matter and changes in legal representation, and there was no submission put that anyone had suffered prejudice by reason of the delay: at [32]); Re Swain [2008] NSWSC 1343; BC200811094 (extension of time granted in the face of a delay exceeding 1 year, where no one amongst the beneficiaries, or any third party, could be prejudiced by the order: at [51] per Young CJ in Eq); Public Trustee of Queensland v Smith [2009] 1 Qd R 26; [2008] QSC 339; BC200811481 (extension of time for an application made almost 2 years after the testator’s death because it enabled the court to consider the application of rectification at the same time as questions of construction, which had also been argued in that case, thereby avoiding a multiplicity of hearings: at [42] per Atkinson J); Fawcett v Crompton [2010] NSWSC 219; BC201001651 (where Smart AJ extended time on the grounds that the estate was a complex one (involving French and Australian wills and assets in both countries), there was no relevant prejudice to anyone and the plaintiff’s case for an order for rectification was strong: at [36], [37]). Cf Public Trustee of New South Wales v Herbert [2009] NSWSC 366; BC200903582 (where the application for rectification was over 5 years late, ‘the seriousness of recalling the grant of probate after such a substantial period’, coupled with the fact that Macready AsJ did not accept the explanation for the delay, led to a refusal to extend time: at [51]). 359. Chichester Diocesan Fund v Simpson [1944] AC 341 at 371 per Lord Simonds, cited with approval by Kitto J in Tatham v Huxtable (1950) 81 CLR 639 at 653; BC5000510 and Mahoney JA in Horan v James [1982] 2 NSWLR 376 at 385. 360. Houston v Burns [1918] AC 337 at 342–3 per Lord Haldane. 361. As to these requirements see 2.21–2.28. 362. See, for example, Tatham v Huxtable (1950) 81 CLR 639 at 649; BC5000510 per Fullagar J. 363. See Hardingham, Neave and Ford, pp 125–7. 364. Re Meyers [1951] 1 Ch 534 at 545 per Harman J; Gregory v Hudson (1997) 41 NSWLR 573 at 586; BC9701111 per Young J (aff’d Gregory v Hudson (1998) 45 NSWLR 300; BC9805959). 365. Attorney-General v National Provincial and Union Bank of England [1924] AC 262 at 264 per Viscount Cave LC, at 268 per Lord Haldane; Chichester Diocesan Fund and Board of Finance (Incorporated) v Simpson [1944] AC 341 at 348 per Viscount Simon LC, at 350 per Lord Macnaghten, at 371 per Lord Simonds; Lutheran Church of Australia SA District Inc v Farmers’ Co-operative Executors and Trustees Ltd (1970) 121 CLR 628 at 640 per Barwick CJ, at 653–7 per Windeyer J; BC7000330. 366. As to cy-près applications, see G E Dal Pont, Law of Charity, 2nd ed, LexisNexis Butterworths, Australia, 2017, Chs 15, 16.

367. Attorney-General v National Provincial and Union Bank of England [1924] AC 262 at 268 per Viscount Haldane; Chichester Diocesan Fund and Board of Finance (Incorporated) v Simpson [1944] AC 341 at 348 per Viscount Simon LC, at 350 per Lord Macnaghten, at 371 per Lord Simonds. As to the legal meaning of ‘charitable’, see G E Dal Pont, Law of Charity, 2nd ed, LexisNexis Butterworths, Australia, 2017, pp 5–8, Chs 3, 8–11. 368. Gregory v Hudson (1998) 45 NSWLR 300 at 309; BC9805959 per Sheller JA (clause in a will giving residue of estate ‘to my Trustees … UPON TRUST to pay distribute or transfer such residue to the Trustee for the time being of the Royce Gregory Family Trust … as Trustee to hold such residue upon the trusts of the aforesaid deed of trust’ held not to infringe the rule). 369. Gregory v Hudson (1997) 41 NSWLR 573 at 586; BC9701111 per Young J (aff’d Gregory v Hudson (1998) 45 NSWLR 300; BC9805959). As to secret trusts, see 4.68–4.79. 370. J Keeler, ‘Lutheran Church of Australia v Co-operative Executors and Trustees Ltd: Delegation of Testamentary Power’ (1971) 4 Adel LR 210 at 210. 371. As to these certainties, see Dal Pont, pp 540–54. 372. Re Park [1932] 1 Ch 580; Re Jones [1945] Ch 105; Re Abrahams’ Will Trusts [1969] 1 Ch 463 at 474–6 per Cross J. 373. [1990] 3 All ER 844 at 849. 374. Re Beatty’s Will Trusts [1990] 3 All ER 844 at 848 (remarking that Lord Simonds, when in Chichester Diocesan Fund and Board of Finance (Incorporated) v Simpson [1944] AC 341 at 371 identifying as a ‘cardinal rule’ that ‘a man may not delegate his testamentary power’, must have known that ‘for centuries testators had been creating special powers of appointment’ and that in Re Park [1932] 1 Ch 580 Clauson J had upheld the validity of a power to appoint to anyone but the donee, and so could not have been casting doubt upon the validity of testamentary powers of appointment: at 847–8). 375. See, for example, Re Hughes [1921] 2 Ch 208 at 212 per Sargant J; Re Harvey [1950] 1 All ER 491. 376. See, for example, Chichester Diocesan Fund and Board of Finance (Incorporated) v Simpson [1944] AC 341 at 349 per Lord MacMillan; Re Coates [1955] Ch 495. 377. See, for example, Re Park [1932] 1 Ch 580; Re Jones [1945] Ch 105. The same has been held in Canada: Re Nicholls (1987) 34 DLR (4th) 321 (CA(Ont)). 378. See, for example, Horan v James [1982] 2 NSWLR 376. As to the application of fiduciary law to executors, see 12.21–12.23. 379. (1950) 81 CLR 639 at 655; BC5000510. See also at 649 per Fullagar J; Lutheran Church of Australia SA District Inc v Farmers’ Co-operative Executors and Trustees Ltd (1970) 121 CLR 628 at 632 per Barwick CJ, at 653 per Windeyer J; BC7000330; Gregory v Hudson (1997) 41 NSWLR 573 at 586; BC9701111 per Young J (aff’d Gregory v Hudson (1998) 45 NSWLR 300; BC9805959). 380. (1950) 81 CLR 639 at 648–9; BC5000510. Cf at 656 per Kitto J. 381. Hardingham, Neave and Ford, p 118. 382. Lutheran Church of Australia SA District Inc v Farmers’ Co-operative Executors and Trustees Ltd (1970) 121 CLR 628 at 654; BC7000330 per Windeyer J (namely that it is ‘now too late for a court to declare a power in the nature of a power of appointment invalid as an attempted delegation of testamentary capacity’). 383. See, for example, Horan v James [1982] 2 NSWLR 376 (where the New South Wales Court of Appeal struck down a residuary gift to trustees ‘with power to pay and/or transfer the same to whomsoever they shall mutually decide and in the absence of mutual agreement then as to one-half thereof as each of my said trustees shall decide and nominate in writing to the solicitors for my estate’). Cf Gregory v Hudson (1998) 45 NSWLR 300 at 309–12; BC9805959 per Sheller JA (who

remained unpersuaded that the decision in Horan v James had correctly applied the rule as explained in Tatham v Huxtable). 384. Although delegation of testamentary power can produce unintended stamp duty and capital gains tax consequences: see C Bevan, ‘Delegation of Testamentary Power: Taxation Traps for the Unwary’ (July 2012) 50 LSJ 70. 385. C J Rowland, Report of the Law Reform Committee of the Law Society of the Australian Capital Territory on the Wills Ordinance 1968, 21 April 1987, p 63; VLRC, 1994, pp 158–9; QLRC, MP 29, pp 96–7. The same recommendation was made in 1997 by the New Zealand Law Commission, reasoning that ‘[t]here seems no reason … why during his or her lifetime a person should be able to create, for example, a power of appointment not confined to members of a certainly defined class as a term of a trust, but not be able to do precisely the same thing by will’ (Succession Law — A Succession (Wills) Act, NZLC R41, October 1997, p 17), but this did not translate into the Wills Act 2007 (NZ). 386. ACT s 14A; NSW s 44; NT s 43; Qld s 33R; Tas s 58; Vic s 48.

[page 88]

CHAPTER 3

Statutory Wills Wills for Persons who Lack Testamentary Capacity Background and context Procedure for applications Statutory conditions for exercise of power — overview First condition — lack of testamentary capacity Second condition — the proposal aligns with what the proposed testator may have done South Australia (and Victoria until 1997) Victoria (post-1997) New South Wales (and arguably the remaining jurisdictions) Third condition — it is reasonable for an order to be made Time when statutory will has effect

3.1 3.1 3.3 3.4 3.5 3.7 3.8 3.14 3.16 3.20 3.21

Wills for Minors

3.22

Wills for Persons who Lack Testamentary Capacity Background and context 3.1 A statutory regime, contained in the wills legislation, empowering a court to make wills for persons who lack testamentary capacity, broadly modelled on provisions in earlier English legislation,1 has seen introduction in all Australian jurisdictions,2 commencing with Tasmania in 1995. South Australia followed in 1996, Victoria in 1997, the Northern Territory in 2000, Queensland, New South Wales and Western Australia in 2006 and, finally, the Australian

[page 89] Capital Territory in 2010.3 Tasmania is unique in affording an equivalent jurisdiction to the Guardianship and Administration Board,4 albeit confined to occasions where there is no existing will in place.5 In Australia the impetus for statutory will regimes came chiefly from a 1992 New South Wales Law Reform Commission Report,6 which recommended that a will-making scheme be introduced both for persons who had never had testamentary capacity (including minors) and those who once had capacity but had since lost it. An equivalent recommendation ensued from a Victorian law reform body 2 years later,7 before forming part of the 1998 recommendations of the National Committee for Uniform Succession Laws.8 3.2 The statutory wills jurisdiction has been described as ‘protective’, in being exercised by the court over the person on whose behalf a will is sought to be made, and ‘purposive’, namely to protect a person in need of protection’.9 Instances where it may be exercised are various. An example is where the person lacking capacity has never made a will (or, if so, that will has since been revoked) and those who would benefit from the person’s estate under the intestacy rules are not appropriate beneficiaries and others should benefit.10 Another is where the person lacking testamentary capacity has previously made a valid will but its provisions are, for a variety of circumstances, no longer appropriate.11 More generally, there will be occasions where a person who lacks capacity would wish to make testamentary provision for person(s) who cannot take under the terms of an existing will, the intestacy rules or family provision legislation. [page 90]

Procedure for applications 3.3 The wills legislation entitles ‘any person’ to application for a statutory will on behalf of the person who lacks testamentary capacity.12 While applicants are normally close family members, applications have been made by,

inter alia, solicitors,13 social workers, the Public Trustee, donees under enduring powers of attorney,14 guardians,15 and others charged with a protective function.16 Importantly, other than in Western Australia and (as from 1 January 2015) Victoria,17 an applicant must first obtain leave of the court to make an application and can proceed only upon its grant.18 In most jurisdictions, the court must be satisfied that the applicant for leave is an appropriate person to make the application,19 and it has been remarked that it is doubtful that this may encompass an ‘officious bystander’.20 The leave requirement serves, it has been said, ‘to screen out baseless and unmeritorious applications and, in particular, baseless claims that a person lacks testamentary capacity’.21 An application for leave may, in any event, be heard at the same time as the substantive application, and often is, particularly if the person who is the subject of the prospective order clearly lacks testamentary capacity, where there is no likelihood that it be regained.22 Yet if [page 91] there is any doubt about this, separate hearings as for leave and then the actual application may be required, given that the court’s jurisdiction ultimately rests on the person for whom the application is made lacking testamentary capacity. Having said that, if the urgency surrounding an application requires a hearing before sufficient medical evidence proving incapacity can be obtained,23 the screening process underscoring the leave application may conceivably be undertaken at once — at which stage the court must be satisfied that the application is not frivolous or vexatious — reserving until later the gathering of further information necessary to support an application for a final order.24

Statutory conditions for exercise of power — overview 3.4 Despite detail differences in the statutory language between jurisdictions, common are three conditions for the exercise of the power, each addressed below: first, that the person for whom the application is made lacks testamentary capacity; second, that the proposed will, alteration or revocation is

or might be one that would have been made by that person had he or she possessed testamentary capacity; and third, that it is or may be appropriate for an order to be made.25 In addition, the legislation sets out matters for the court to consider, at the leave and/or the application stage, in making its determination, albeit culminating with an open-ended ‘other’ relevant facts or matters,26 which are clearly relevant to the third condition noted above and possibly also to the second one.27

First condition — lack of testamentary capacity 3.5 The concept of testamentary capacity here takes its well-understood meaning in probate law.28 If the person in question has testamentary capacity, there is no scope for the court to entertain an application to make a statutory will on his or her behalf. To do so would undermine the fundamental notion of freedom of testation. In this context, testamentary capacity refers to mental capacity, not necessarily incapacity stemming from a person’s minority (other than in Western Australia).29 In circumstances where a minor has, aside from his or her minority, the mental capacity to execute a will, separate statutory provisions, discussed at the conclusion of this chapter,30 empower him or her to make a will with the court’s leave. The latter finds no equivalent in Western Australia, where the court’s statutory power to make a will for a person lacking capacity is premised on that person, inter alia, reaching the age of 18 years.31 [page 92] 3.6 The best evidence of a lack of testamentary capacity, for this purpose, is that of a specialist professional, namely a psychiatrist, consultant physician or clinical psychologist, who has recently examined the person and who expresses an opinion in a report that complies with the expert witness rules of court. The next best evidence, which will suffice if there is insufficient time for the report from a specialist, is that of the person’s treating general practitioner. The least satisfactory evidence is that of lay persons who would benefit under the proposed statutory will or codicil and who endeavour to prove testamentary incapacity by proffering examples of the person’s erratic or demented

behaviour. Evidence of this kind, uncorroborated by expert professional evidence, will be treated with the utmost suspicion by the court.32

Second condition — the proposal aligns with what the proposed testator may have done 3.7 This condition has presented the greatest difficulty to courts. It is not assisted by varying statutory language, which does not differentiate between what has been termed the ‘nil capacity’ cases and ‘lost capacity’ cases, identified in the discussion below.33 As a consequence, separate consideration is given to each jurisdiction. What can be said in general terms is that the statutory wills regime remains grounded in the core notion of freedom of testation, and so is not a vehicle for imposing on testators ‘wishes and feelings that clearly are contrary to those they held before losing capacity, do not hold now and would not hold if they regained capacity, however right those views may be’.34

South Australia (and Victoria until 1997) 3.8 The South Australian provision relevantly provides that, before making a statutory will, the court must be satisfied that ‘the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity’.35 Almost identical language was found in the original Victorian provision,36 later modified.37 This language, and in particular the notion of an ‘accurate reflection’ of a person’s ‘likely intentions’, speaks to the law’s ‘traditional reluctance to interfere in the free exercise of a testator’s testamentary disposition’.38 That the terms of a proposed will are reasonable, or no more reflects ‘likely intentions’ than a number of other possible dispositions, is insufficient to attract the jurisdiction.39 3.9 This statutory wording presents the greatest difficulties in ‘nil capacity’ cases, namely where the person on whose behalf the application is made has lacked mental capacity either from birth or from an early age. It is problematic in requiring the court to assess that person’s likely intentions without a yardstick or reference point from which to do so40 (unless, exceptionally,

[page 93] the person has sufficient intellectual and decision-making capacity to form and express some meaningful testamentary intentions, in which event weight may be given to these).41 Lest the court, however, attempts to address the point, it would frustrate the remedial object of the legislation in a fact scenario that may very much call for this type of curial intervention. For example, in Re C (a patient)42 the incapacitated person, who had suffered from mental disability from a very early age, inherited £1.6 million. Hoffmann J stated that in these circumstances ‘the court must assume that she would have been a normal decent person, acting in accordance with contemporary standards of morality’.43 A person in the position of the patient, looking back over her life, his Lordship surmised, would have been influenced, first, by the fact that she had spent her entire life in the care of the community embodied in the National Health Service, the hospital and voluntary mental health charities and, second, that her estate had derived from her family. The moral obligations the patient would have felt were to both the community and her family, and a will was drawn up accordingly. In another ‘nil capacity’ case, this time from South Australia, Hoffmann v Walters,44 the plaintiff applied for an order authorising a statutory will for her son, who by reason of a car accident as an infant had been left intellectually disabled. He received a substantial damages award. The will proposed appointed his brother and sister as executors and trustees, provided that they were to hold the residue on trust for the plaintiff if she survived the son by 28 days and, if she did not, to the trustees in equal shares. The son’s parents had separated in 1988 and divorced in 1996. In 1989 the plaintiff had been granted custody of the three children. The plaintiff suffered a breakdown in 1994, whereupon the son was placed in care for 10 years, with the plaintiff regularly visiting him during that time. In 2004 the plaintiff resumed full-time care for her son. Debelle J authorised the making of the will proposed, noting that otherwise the father, who had no contact with his son for 12 years, would take a half share of the son’s estate under the intestacy rules upon the son’s death. In so ruling, his Honour observed that, although the South Australian provision, unlike its English counterpart discussed in Re C, does not use the

expression ‘might have been expected to provide’, ‘it is manifestly clear that it is an appropriate factor to consider’.45 There are multiple other South Australian cases where statutory wills have been granted to reflect the closeness between a parent or carer and the testator and at the same time the absence of closeness or involvement by (usually) another parent.46 In determining what provision should be made via statutory will in this context, it may also be relevant to take account of benefits that the parent-carer has already received directly or indirectly from the testator’s damages award.47 3.10 The statutory language presents less artificiality in ‘lost capacity’ cases, namely where the person in question once had testamentary capacity, but has, by reason of accident or medical condition, subsequently lost that capacity. In such a case, that a proposed testator was once able to give effect to his or her wishes and views provides a basis upon which the court [page 94] can consider if the terms of the proposed will reflect his or her ‘likely intentions’ had capacity been retained.48 Megarry VC in Re D(J) explained the point as follows:49 Before losing testamentary capacity the patient may have been a person with strong antipathies or deep affections for particular persons or causes, or with vigorous religious or political views; and of course the patient was then able to give effect to those views when making a will. I think that the court must take the patient as he or she was before losing testamentary capacity. No doubt allowance may be made for the passage of years since the patient was last of full capacity, for sometimes strong feelings mellow into indifference, and even family feuds evaporate. Furthermore, I do not think that the court should give effect to antipathies or affections of the patient which are beyond reason.

3.11 Of necessity, the person’s ‘likely intentions’, as per the statutory language, must be derived from all available evidence and information concerning his or her intentions, attitude and predispositions from time to time. Yet notwithstanding the statutory directive that the proposed will ‘accurately reflect’ those intentions — suggesting a need for the proposed will to reproduce the person’s intentions ‘with a substantial degree of precision and exactitude’50 — it remains that the statute is directed to his or her ‘likely’ intentions. Accordingly, Mandie J in State Trustees Ltd v Hayden observed

that:51 … in any given case … a court may … be able to conclude in the absence of much or any evidence concerning the particular person, that it is more likely than not that the person in the events which have occurred would have, as a normal decent person, reacted in a particular way to those events and formed the relevant intentions as a result.

His Honour authorised a statutory will on the facts in question, where an existing will conferred substantial benefits on the defendant, who had acted disgracefully in managing the testator’s affairs as administrator under power conferred by the relevant Guardianship and Administration Board. In so ruling, Mandie J found useful the formulation of Hoffmann J in Re C,52 discussed above — that in a case with limited or no evidence of likely intentions, the court must assume what would be intended by a normal decent person — albeit in the face of differences in the statutory language. 3.12 Yet the Victorian Court of Appeal in Boulton v Sanders53 later cautioned against applying English decisions to the extent these were grounded in statutory language different from that in the (then) Victorian provisions. In any event, Dodds-Streeton JA, with whom Ormiston and Charles JJA concurred, construed the statutory language in an ostensibly stricter fashion than had been assumed. Her Honour remarked that, if there is insufficient evidence as to the testator’s ‘likely intentions’, the court cannot authorise a will by doing ‘the best it can’,54 even if an unintended intestacy would ensue. The requirement of ‘accurate reflection’ in the statute, she added, demanded a ‘substantial degree of precision and exactitude’ about the testator’s likely intentions.55 On this logic, the court cannot authorise a will that no more probably reflects the likely intentions than any number of other possible wills (or, indeed, an assumed desire to avoid intestacy).56 3.13 Although decided before Boulton, the ruling in Re Fletcher57 may reflect the stricter approach. There the testator’s will effectively left the estate to her son and daughter in equal shares. After executing the will, the testator made substantial inter vivos advances to the son, which had not been repaid. The son later became bankrupt. After the testator lost her [page 95]

mental capacity, application was made for a statutory will that would have restored the equality between the two children after taking into account the inter vivos advances. In refusing the application, Byrne J was not prepared to conclude that this would have reflected the testator’s ‘likely intentions’, reasoning as follows:58 Experience shows that people of sound mind do not alter their will even when subsequent events occur which change the effect of the existing testament. It is a serious step to make or modify a will. It is not for me to impose upon [the mother] an intention which I think she might or ought to have.

Whilst it is open to construe the statutory language strictly, as did DoddsStreeton JA above, it does little to assist in the ‘nil capacity’ case, such as Hoffmann v Walters, or in one of otherwise limited evidence of the testator’s likely intention, such as State Trustees Ltd v Hayden.59 Too strict an approach may unduly confine the beneficial object of the statute, and the following more yielding approach recently posited by a South Australian judge may be preferable:60 … it is not fatal to an application that there are multiple potential or possible wills or versions of the person’s likely intentions. It is enough that despite the range of possibilities, the Court is satisfied (after hearing all the evidence, and the submissions of all interested parties) that a particular version emerges as ‘the likely’ version of the person’s testamentary intentions. While that version must ‘accurately’ reflect their intentions, it is my view that for the legislation to be workable … there must be some flexibility in terms of matters of detail.

Victoria (post-1997) 3.14 The current Victorian provision requires that, before making a statutory will, a court be satisfied, inter alia, that ‘the proposed will or revocation reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if he or she has testamentary capacity’.61 By eschewing the language ‘accurately reflecting the person’s likely intentions’, any need for the proposed will to reproduce the person’s intentions with a substantial degree of exactitude and precision is unnecessary. It also avoids the artificiality of accurately reflecting intention in a ‘nil capacity’ case. By instead adopting the words ‘might reasonably be expected to be’, the current provision enables the court to legitimately assess the presumed intention of persons who never had testamentary capacity.

3.15 It follows that judicial decisions on the previous provision, some of which were mentioned above, must be treated with caution, as the standard of satisfaction as to intention that the court must reach has now arguably been lowered. In State Trustees Ltd v Do,62 a ‘lost capacity’ case, Bell J noted that as the amended provision sought ‘to give somewhat more scope to the court to authorise the making of wills on behalf of people lacking testamentary capacity’, a ‘broad-brush approach is required, for otherwise the beneficial purpose of the function might be defeated’. On the facts in question, his Honour found that the testator’s ‘likely’ or ‘reasonably … expected’ intentions were best revealed by the terms of her previous wills, from which it was possible to ‘identify a mind with an intention at work’.63 The wills, read with the relationship evidence, [page 96] revealed her to be focused on her family, her godson and her two neighbours, leading Bell J to authorise a statutory will largely to this effect.

New South Wales (and arguably the remaining jurisdictions) 3.16 The relevant New South Wales provision requires the court to refuse leave to apply for a statutory will unless it is satisfied, inter alia, that ‘the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity’.64 Identical language is found in the Australian Capital Territory and Tasmanian provisions.65 The Northern Territory legislation refers to a proposed will that ‘is or might be one that would have been made by the proposed testator if he or she had testamentary capacity’.66 The Queensland Act similarly refers to a proposed will that ‘is or may be’ one that ‘the person would make if the person would have testamentary capacity’.67 In Western Australia the suggested will must be one ‘which could be’ made by the person were he or she not lacking testamentary capacity,68 which though on its face may appear to obviate inquiry into the person’s likely intentions, cannot be viewed independently of

the evidence that the court must take into account, which includes the person’s wishes.69 That none of these jurisdictions adopts the phrase ‘reasonably likely’, though, appears no substantial shift, as the wording is, by avoiding a subjective focus, amenable to dealing with both ‘lost capacity’ and ‘nil capacity’ cases.70 3.17 The New South Wales provision received extensive judicial consideration by Palmer J in Re Application of Fenwick.71 Like the Victorian Court of Appeal in Boulton v Sanders,72 his Honour emphasised the need to focus on the statutory language rather than rely on English decisions based on different statutory wording. The court should, he remarked, start ‘with a clean state’, and interpret the statutory words ‘in the light of the problems and difficulties which the legislation seeks to remedy, bearing in mind that legislation of this kind should receive a benevolent construction’.73 The phrase ‘reasonably likely’, Palmer J opined, must be understood in ‘one or other of its nuances’ in different applications of the provision,74 for the words must be amenable to being applied in widely different types of cases. He instanced three major categories. Within the first category, ‘lost capacity’ cases, his Honour identified three possible scenarios, the first being where the incapacitated person is adult, has formed family and other personal relationships, has made a valid will before testamentary incapacity occurred, ‘and is now said to have expressed some testamentary intention in relation to the circumstances sufficient to [page 97] warrant an application for statutory codicil or new will’.75 The search for intention is easiest in this scenario, State Trustees Ltd v Do,76 discussed above,77 illustrating the point.78 In the second scenario — where ‘an adult with established family or other personal relationship has made a valid will but, since losing testamentary capacity, has not expressed, or is incapable of expressing, any testamentary intention to deal with changed circumstances, such as, the birth of a child or the death of a beneficiary under the existing will’79 — the court may be satisfied, as to what the incapacitated person is

reasonably likely to have done, ‘in the light of what is known of his or her relationships, history, personality and size of the estate’.80 The final scenario is where the incapacitated person never made a will. Palmer J surmised that here the court ought not to start with a presumed intention against intestacy. In line with the statutory language, the court must be satisfied that it is ‘reasonably likely’ — in the sense of a fairly good chance — that the person would have made a will at some time or another, had not testamentary incapacity intervened.81 His Honour envisaged that the evidence could point to a decision to die intestate. Ultimately, he emphasised that in a lost capacity case, the court’s concern is with the actual, or reasonably likely, subjective intentions of the incapacitated person.82 In the second category, a ‘nil capacity’ case, the test is instead entirely objective, as a search for any degree of subjective intention, where a person has never had testamentary capacity, is impossible.83 In such a case, if the court does not authorise a statutory will, the person will inevitably die intestate. This led Palmer J to state that the court should authorise a statutory will unless it is satisfied that what would ensue on intestacy would provide adequately for all claims on the estate. His Honour acknowledged that whether a proposed will is ‘reasonably likely’ to have been made by a person who never had capacity to form testamentary intentions may be answered only by reference to whether there is a ‘fairly good chance that a reasonable person’ in the circumstances would make such a testamentary provision.84 While his Honour emphatically rejected the ‘fictional’ United Kingdom position, expressed in Re C,85 on this point, this does not deny that the applicable criterion invokes what another New South Wales [page 98] judge has described as ‘the fictional element of a standard based on a reasonable probability of an imputed intention in a hypothetical setting’.86 The third category instanced by Palmer J targeted intention in a ‘pre-empted capacity’ case. His Honour saw this as a ‘teenager’ case, where the incapacitated person is still a minor ‘but has lost testamentary capacity at an age at which he

or she had formed relationships and had, or could reasonably be expected to have had, a fairly good understanding of will-making, intestacy and their consequences’.87 An example may be a 17-year-old who suffers severe and permanent brain damage in a motor vehicle accident and is subsequently awarded a large sum in damages. In such a case, Palmer J supposed, the ‘teenager’ would likely have not expressed any testamentary intention. Here, as in a ‘nil capacity’ case, the court starts from the position that a teenager with significant assets would not choose to die intestate. This prompts a second, more substantial, question that his Honour explained as follows:88 The second, and most substantial question is: is it reasonably likely that the teenager would have made the will which is now proposed? This question involves both subjective and objective considerations. Because at least something — possibly a great deal — will be known of the teenager’s relationships and character before he or she lost capacity, the court will be able to form some view about possible subjective intentions. But because these intentions are no more than future possibilities, the court cannot take the search for subjective intention too far; it can be satisfied of ‘reasonable likelihood’ of the proposed statutory will only by taking into account objective considerations also.

3.18 The neat division between ‘subjective’, ‘objective’ and the ‘combined’ tests in the three categories, though intuitively appealing, may not be entirely accurate or precise. In particular, an objective test is not one that can be applied independent of the nature and circumstances of the person in question. A better description, it has been suggested, is that the court’s assessment, being reflective of a person in the position of the real proposed testator, though objective (being that of a reasonable ‘decent’ person), ‘is subjectively anchored with the moral duties and expectations of those around the proposed testator’.89 This may explain a curial tendency to proceed on an assumption that a testator would wish to benefit those closest or dearest to him or her, especially in ‘nil capacity’ cases,90 which may legitimately take into account the behaviour of a person seeking status as a beneficiary vis-à-vis the testator.91 Ultimately, [page 99] however, the matter rests upon the evidence of what is ‘reasonably likely’ in each testator’s circumstances. The remarks of Hallen AsJ in Re Will of Jane are

apposite to this end:92 Whether the proposed statutory will is ‘reasonably likely’ must be derived from all relevant evidence and information as may be available concerning the actual intentions, attitudes and predispositions of the person in the past, by reference to what is known of his, or her, relationships, history, personality and the size of the estate. Thus, it seems, what is required is to establish the chance of an event occurring (the proposed will is one that is, or would have been reasonably likely to have been, made by the incapable person, if he, or she, had testamentary capacity) that is above mere possibility, but not so high as to be more likely than not. In other words, more is required than mere assertion, suspicion, or conjecture.

3.19 Re Application of Fenwick93 involved two distinct applications, the ‘Fenwick’ application and the ‘Charles’ application. The former involved an application by the older brother of the incapacitated person. That person, aged 60, had made a will 10 years before suffering an incapacitating accident. Because of the terms of the will, it was likely that the beneficiaries thereunder would predecease the incapacitated person, causing an intestacy, and that as a result the estate, which was considerable, would vest in the Crown as bona vacantia. A proposed codicil to the will was sought to avoid this possibility. In the ‘Charles’ application the incapacitated person was an 11-year-old child who had suffered severe and irreversible brain injury since the age of 4 months. The Victims Compensation Tribunal awarded the child, who was placed under the care of the Minister for Community Services, substantial damages for the injuries. The child’s parents were suspected of having inflicted those injuries, but never criminally convicted. The Minister sought authorisation of a statutory will for the child so as to avoid his estate passing on intestacy to his parents, and instead pass to his sister. Palmer J acceded to both applications.

Third condition — it is reasonable for an order to be made 3.20 The first two conditions target matters of fact, whereas the third condition — that it is reasonable for an order to be made — ‘invokes the exercise of curial discretion’.94 Yet the case law gives little guidance on the exercise of this discretion, beyond that ‘the broad, discretionary value judgments … must take their colour from the subject matter, scope and purpose of the legislation’.95 It follows that satisfaction of the first two conditions does not dictate that the court will accede to the application,

although it is hardly unusual for this to be the outcome. An instance where the court elected not to so proceed is Hausfeld v Hausfeld.96 There the application sought to alter the testamentary disposition that would accrue to the plaintiff in order to preclude claims by the plaintiff’s creditors against that disposition. Even though satisfied of the first and second conditions, White J refused the application, reasoning that ‘[t]he policy of the law is that people should pay their debts so far as they are able’, and not that ‘they should be sheltered in the way proposed’.97 In ADT v LRT98 an application to alter an incapacitated mother’s existing will, so as to avoid her son’s inheritance thereunder being divided in the course of the son’s pending divorce proceedings, was likewise refused. Flanagan J, [page 100] in so deciding, was concerned that the order sought would impact upon pending Family Court proceedings.99 Beyond evident considerations of public policy, reflected in the above cases, the statutory factors listed as relevant to the grant of a statutory will no doubt impact upon the court’s overall discretionary judgment.100 The court may, in determining the form of the statutory will, consider the impact of any putative family provision claim.101

Time when statutory will has effect 3.21 In each jurisdiction the legislation requires that a statutory will be signed by the Registrar and sealed with the seal of the court102 (and in some jurisdictions adds that the Registrar may only sign the will upon proof that the proposed testator is alive).103 The issue then arises as to whether such a will takes effect upon the order of the court, or whether its effect is postponed until the Registrar signs it. South Australian case authority supports the former as the proper construction of the relevant provisions, on the basis that the court order is the substantive order for this purpose, whereas the Registrar’s signature is ‘essentially mechanical’.104 If so, that the testator dies after the

court order but before its signature by the Registrar does not undermine its validity. The same is the outcome in New South Wales, where a court has reasoned that the administrative process mentioned above ‘is a servant, not the master, of the judicial process that culminates in an order [for a statutory will]’.105 To the extent that this is partly informed by a statutory provision to the effect the court may, in making an order for a statutory will, give any necessary related orders or directions,106 the same may be the case in the Australian Capital Territory and Queensland, where the same provisions exist,107 and, it is arguable, elsewhere in view of the beneficial construction of legislation with a remedial object. The position may, however, be different in Victoria, where the relevant provision, uniquely, states that a statutory will is ‘not valid’ unless it has been properly signed and sealed.108

Wills for Minors 3.22 As a general principle, the minimum will-making age is 18 years.109 However, excepting Western Australia, and against the backdrop of law reform recommendations,110 the wills legislation allows for a minor to make a particular will if its terms have been disclosed to [page 101] the court and the court grants leave to make the will.111 A minor may have acquired assets through inheritance or a damages award (usually from an accident). It may be desirable in these circumstances to allow the minor to make a will, especially where he or she suffers from an illness or injury that may lead to death before attaining majority and the intestacy rules would produce a result that is unfair or otherwise inconsistent with the minor’s intentions. For instance, it may be that the minor wishes only one parent to benefit, say, where the minor is estranged from the other, or it may be that he or she legitimately wishes to benefit neither parent, say, where the minor is being cared for by foster parents or a dedicated carer, or has entered into a de facto relationship.

3.23 The wills legislation generally provides that a minor, or a person on the minor’s behalf, may apply to the court for permission to make a will, which the court may grant, whether or not subject to conditions.112 Before granting permission, the court must be satisfied that: first, the minor understands the nature and effect of the proposed will and, other than in the Australian Capital Territory and South Australia, the extent of the property it disposes; second, the proposed will accurately reflects the intentions of the minor; and third, it is reasonable in all circumstances that the order be made.113 Other than in the Australian Capital Territory and Tasmania, in addition to the standard requirements for the execution of a will,114 one of the witnesses to the making of a will by a minor must be the Registrar of the court.115 It is immediately apparent from these provisions that the court’s jurisdiction is premised upon the minor in question possessing testamentary capacity. In granting its permission, the court does not therefore make the will for the minor; it is the minor’s own will. What the court does is confer capacity on the minor to make the will in question.116 If the minor lacks testamentary capacity, application must be made to invoke the court’s power to make a statutory will for that person.117 3.24 The leading case is Application of M,118 involving a 17-year-old who had never known his father and had only intermittent contact with his mother. His main carers had been his grandparents, and he benefited considerably under his grandmother’s will. Under the intestacy rules, that property would have passed to the applicant’s parents should he die as a minor,119 which Young J saw as ‘an underserved windfall to the minor’s biological parents to the detriment of what is his real family’.120 His Honour, acknowledging that the court should not lightly make an order, nonetheless therefore found strong grounds for an order in these circumstances. Leave was granted for the making of the will that left a legacy to the applicant’s mother and the residue to his cousins with whom he had been raised. Another occasion where the court’s leave was granted involved a 17-year-old ‘street kid’ suffering from a rare illness requiring immediate surgery, whose proposed will benefited a friend who had helped care for her in the ‘squat’ in which she was living.121

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2. 3. 4. 5. 6. 7. 8. 9.

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Mental Health Act 1983 (UK) ss 96, 97 (although originally in provisions in earlier legislation that commenced in 1969, via amendment to the Mental Health Act 1959 (UK)). This legislation was amended by the Mental Capacity Act 2005 (UK) (repealing Pt VII of the 1983 Act, as from 1 October 2007), which fundamentally changed the focus of the provision, using the terminology of the ‘best interests’ of the person who lacked capacity as a guiding principle in the exercise of the power: see the discussion in Re JC [2012] WTLR 1211; NT v FS [2013] WTLR 867; [2013] EWHC 684 (COP); see further R Harding, ‘The Rise of Statutory Wills and the Limits of Best Interests Decision-Making in Inheritance’ (2015) 78 Mod LR 945; F Burns, ‘Property of the Mentally Incapacitated: Statutory Wills in England and Australia’ in W Barr (ed), Modern Studies in Property Law, Vol 8, Hart Publishing, Oxford, 2015, pp 138–47. The history of both the English and Australian provisions was traced by Palmer J in Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [33]–[117]. The topic of statutory wills is now the subject of a dedicated monograph: R Williams and S McCullough, Statutory Will Applications: A Practical Guide, LexisNexis Butterworths, Australia, 2014. ACT ss 16A–16I; NSW ss 18–26; NT ss 19–26; Qld ss 21–28; SA s 7; Tas ss 21–28, 39–41; Vic ss 21–30; WA ss 39–48. Tas ss 29–41. Tas s 31. New South Wales Law Reform Commission, Wills for Persons Lacking Will-Making Capacity, Report No 68, 1992. VLRC, 1994, pp 34–53. QLRC, MP 29, pp 40–58. Secretary, Department of Family & Community Services v K [2014] NSWSC 1065; BC201406362 at [58], [60] per Lindsay J. See also GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308; BC201410060 at [52] per the court. See, for example, Bryant v Blake (2004) 237 LSJS 23; [2004] SASC 369; BC200407824 (application for order authorising making of will for benefit of defendant, who suffered severe injury in a motor accident, where the plaintiff was the defendant’s carer, there having been little involvement of those who would benefit from intestacy); Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 (the ‘Charles application’, discussed at 3.19); Re Application by Kelso [2010] NSWSC 357; BC201002670 (application on behalf of a domestic violence victim (woman), who was in a coma and on life support as a result of her husband’s conduct, to bar her husband from inheriting her estate); Re Krinas [2016] SASC 9; BC201600404 (where a person (K) who had lost capacity was intestate and had no blood relatives able to take on intestacy, Judge Dart proceeded on the assumption that K would not have wished to die intestate and thereby forfeit his estate to the Crown). See, for example, Monger v Taylor [2000] VSC 304; BC200005219 (will authorised on behalf of a testator suffering Alzheimer’s disease, whose sister would otherwise inherit the entire estate on an intestacy, to share the estate between the sister and the nephew, who provided care for the testator); Hill v Hill [2001] VSC 83; BC200101482 (where Byrne J authorised the making of a statutory will for a 93-year-old testator who had lost testamentary capacity but had previously made a will in 1996 leaving her modest estate to be divided equally between her only daughter and the Cat Protection Society of Victoria, in the face of strong and compelling evidence that after the 1996 will was made, and whilst with mental capacity, the testator had decided that she had been wrong not to leave everything to her daughter, having recognised that daughter’s illness, and had expressed a desire to leave all of her estate to her); State Trustees Ltd v Hayden (2002) 4 VR 229; [2002] VSC 98; BC200201547 (discussed at 3.11); De Gois v Korp [2005] VSC 326; BC200505933 (application on

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14. 15. 16. 17.

18. 19. 20. 21.

behalf of a testator who was in a persistent vegetative state as a result of severe brain injury, whose husband was subsequently charged with her attempted murder and would otherwise benefit from the testator’s existing will); Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 (the ‘Fenwick application’, discussed at 3.19); Re Estate of Crawley [2010] NSWSC 618; BC201003849 (application on behalf of an elderly woman suffering severe dementia whose existing will benefited persons who had already died, so as to prevent the estate vesting in the Crown as bona vacantia). ACT s 16B(1); NSW s 18(1); NT s 20(1) (‘a person’); Qld s 22(1) (‘a person’); SA s 7(1); Tas s 22(1) (see s 30 as regards applications to the Guardianship and Administration Board); Vic s 21(2) (and see s 21C as to persons entitled to appear; see also s 21D(1)(a), which empowers the court, if it considers it appropriate to do so, to order that a person on whose behalf a will is proposed to be made or revoked be separately represented); WA s 40(1). See, for example, Re Application by Kelso [2010] NSWSC 357; BC201002670. Cf the potential issue of a solicitor being a potential witness, and possibly disqualified: see Bailey v Richardson [2015] VSC 255; BC201504797 at [186]–[189] per McMillan J. See, for example, Doughan v Straguszi [2013] QSC 295; BC201314091. See, for example, Griffin v Boardman [2009] SASC 315; BC200909533. See, for example, Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 (the ‘Charles’ application, discussed at 3.19). The change was effected by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic). The abolition of the leave requirement was recommended in VLRC, 2013 (recommendation 4), which noted that, as the Supreme Court had authorised only 32 statutory wills in the 16 preceding years, there was a need to make the system more accessible: paras 3.27, 3.28. Moreover, in practice the leave and the merits stages were usually combined because courts used the discretionary power to determine that the application for leave to apply proceed as an application for authorisation of the proposed will: paras 3.32–3.35. The latter point had been mentioned by Habersberger J in Saunders v Pedemont [2012] VSC 574; BC201209206 at [9] (noting that ‘once leave has been given, it is extremely unlikely … that an order authorising a will to be made would be refused by the court’ (see 3.20), thus making it ‘very hard to see why the second step was thought to be necessary as it seems to me that it serves no useful purpose’). The VLRC believed that costs orders are a sufficient deterrent to vexatious or unmeritorious applications being made: para 3.35. ACT s 16B; NSW s 19(1); NT s 20; Qld s 22; SA s 7(1); Tas s 23 (but note that no leave is required where the application is made to the Guardianship and Administration Board: ss 32–34); Vic s 21(2) (before 1 January 2015). ACT s 16E(d); NSW s 22(d); NT s 21(d); Qld s 24(a); Tas s 24(a) (see s 33(a) as regards applications to the Guardianship and Administration Board); WA s 42(1)(c) (dealing with applicants on the merits as opposed to leave). Re Will of Jane [2011] NSWSC 624; BC201105369 at [88] per Hallen AsJ. Hoffmann v Waters (2007) 98 SASR 500; [2007] SASC 273; BC200705857 at [10] per Debelle J (although his Honour went on to brand the leave requirement as otiose and unnecessary, arguing that the fact that it is necessary to establish lack of testamentary capacity is a sufficient safeguard to prevent unmeritorious applications, particularly as the costs of making applications are relatively substantial, and are likely to be payable by an unsuccessful applicant on an indemnity basis: at [27]). See also Monger v Taylor [2000] VSC 304; BC200005219 at [22] per Gillard J; Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 112; BC200403477 at [11] per Dodds-Streeton AJA; Bryant v Blake (2004) 237 LSJS 23; [2004] SASC 369; BC200407824; Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [119] per Palmer J. Cf GAU v GAV [2016] 1 Qd R 1;

22. 23.

24. 25. 26. 27. 28.

29.

30. 31. 32. 33. 34. 35. 36. 37. 38. 39.

40.

[2014] QCA 308; BC201410060 at [45] per the court (seeing nothing in the text or context of the Queensland provision that limits the role of leave to screen out vexatious or unmeritorious claims). Hoffmann v Waters (2007) 98 SASR 500; [2007] SASC 273; BC200705857 at [10] per Debelle J; Re W, DJ [2015] SASC 45; BC201502394 at [20] per Gray J. See, for example, Re Davey [1980] 3 All ER 342 (arising out of the advanced age and poor health of the person on whose behalf a statutory will was sought, where she had married someone half her age without informing her family). Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [122] per Palmer J. ACT s 16E(a)–(c); NSW s 22(a)–(c); NT s 21(a)–(c); Qld s 24(c)–(e); SA s 7(3); Tas s 24 (see s 33 as regards applications to the Guardianship and Administration Board); Vic s 21B (before 1 January 2015, Vic s 26); WA s 42. ACT ss 16B(2), 16D(a); NSW ss 19(2), 21(a); NT ss 20(2), 23(1)(a); Qld ss 23, 25(a); SA s 7(4); Tas ss 23(2), 26(a) (see s 32 as regards applications to the Guardianship and Administration Board); Vic s 21A (before 1 January 2015, Vic s 28); WA s 41. Re K, JL [2016] SASC 53; BC201603064 at [14] per Doyle J. Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [126] per Palmer J; Re Will of Jane [2011] NSWSC 624; BC201105369 at [70]–[72] per Hallen AsJ. As to the concept of testamentary capacity in probate law, see 2.2–2.20. Other than in Queensland and Western Australia, the legislation explicitly recognises that the court’s jurisdiction in this context can operate on behalf of a child who lacks testamentary capacity: ACT s 16A(4); NSW s 18(4); NT s 19(4); SA s 7(5); Tas s 22(4) (see s 30(2) as regards applications to the Guardianship and Administration Board); Vic s 21(3). Although the Queensland legislation contains no equivalent provision, the fact that it makes explicit provision for the court to authorise a minor to make a will, premised upon the minor understanding the nature and effect of the proposed will (Qld s 19(3)(a)), suggests that the position is the same. See 3.22–3.24. WA s 40(2)(b). The material in this paragraph is sourced from the judgment of Palmer J in Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [127]–[129]. See the analysis by Palmer J in Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [154]–[188]. Re Jones [2016] WTLR 661; [2014] EWCOP 59 at [64] per District Judge Eldergill. SA s 7(3)(b). Vic s 26(b), until substituted by the Wills Amendment Act 2007 (Vic), as from 15 August 2007. See 3.14, 3.15. Re Manley [2013] SASC 98; BC201310645 at [56] per Stanley J. Re Manley [2013] SASC 98; BC201310645 at [56] per Stanley J (adding that it is ‘a serious step to make a will’, and it is not for a judge to impose upon a testator an intention the judge thinks the testator might or ought to have: at [82]). Hoffmann v Waters (2007) 98 SASR 500; [2007] SASC 273; BC200705857 at [16] per Debelle J (‘in many cases such as this, where the person who lacks testamentary capacity has never been able to comprehend what is involved in making a will, it will be especially difficult, if not quite realistic, for the Court to be able to determine what his likely intentions are’). This explains why some maintain that ‘nil capacity’ cases should not come within the statutory wills regime: see, for example, R Harding, ‘The Rise of Statutory Wills and the Limits of Best Interests Decision-Making in Inheritance’ (2015) 78 Mod LR 945 (instead favouring the default rules of intestate succession in

41. 42. 43. 44. 45. 46.

47.

48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59.

60. 61. 62. 63.

this context). See, for example, Re K, JL [2016] SASC 53; BC201603064 at [52], [53] per Doyle J. [1991] 3 All ER 866. Re C (a patient) [1991] 3 All ER 866 at 870. (2007) 98 SASR 500; [2007] SASC 273; BC200705857. Hoffmann v Walters (2007) 98 SASR 500; [2007] SASC 273; BC200705857 at [16]. See, for example, Re G, CL [2015] SASC 80; BC201504328 (Gray J remarking (at [19]) that ‘where one parent is significantly more involved in the care of the testator, and where the estate is significant, it is highly probable that the testator would chose to make a will that would alter the position that would exist on intestacy’; on the facts his Honour approved a will that gave 75 per cent of the testator’s estate to the mother (JKM) and her family, in the face of evidence that JKM had been the primary caregiver and that JKM’s parents had provided her with extensive support and assistance); Re Corner [2015] SASC 100; BC201506548 (where Bampton J approved a statutory will to benefit the mother of the proposed testator (C), who had assumed primary care for C, in contrast to C’s father, with whom C had no contact). See, for example, Re W, DJ [2015] SASC 45; BC201502394 at [58] per Gray J (remarking that the putative testator would have regard to any amount received by the intended beneficiary for the purposes of looking after the testator and any lump sum received in that regard). Re Brown [2009] SASC 345; BC200910131 at [34] per Gray J. [1982] Ch 237 at 244. State Trustees Ltd v Hayden (2002) 4 VR 229; [2002] VSC 98; BC200201547 at [39] per Mandie J. (2002) 4 VR 229; [2002] VSC 98; BC200201547 at [39]. [1991] 3 All ER 866. (2004) 9 VR 495; [2004] VSCA 112; BC200403477 at [1] per Ormiston JA, at [54] per DoddsStreeton JA. Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 112; BC200403477 at [109]. Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 112; BC200403477 at [112]. Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 112; BC200403477 at [111]. [2001] VSC 109; BC200102030. Re Fletcher [2001] VSC 109; BC200102030 at [22]. A point noted by Debelle J in Hoffmann v Walters (2007) 98 SASR 500; [2007] SASC 273; BC200705857 at [16], who, though agreeing with the general tenor of Dodds-Streeton JA’s observations regarding the need for caution in the wholesale application of the English cases, opined that ‘in many cases such as this, where the person who lacks testamentary capacity has never been able to comprehend what is involved in making a will, it will be especially difficult, if not quite realistic, for the Court to be able to determine what his likely intentions are’, and found it appropriate on the facts before him to apply the English approach, adding that ‘[e]ach case will depend on its own facts and circumstances’. Re K, JL [2016] SASC 53; BC201603064 at [42] per Doyle J. Vic s 21B(b) (before 1 January 2015, Vic s 26(b)). [2011] VSC 45; BC201100635 at [10], [11]. State Trustees Ltd v Do [2011] VSC 45; BC201100635 at [12]. See also Re Will of Jane [2011] NSWSC 624; BC201105369 at [82] per Hallen AsJ (‘A previous will, or wills, may give a clear indication of the person’s testamentary choices and preferences such as to provide evidence of what it is reasonably likely he, or she, would do if he, or she, had testamentary capacity’); White v Gillam [2016] VSC 5; BC201600136 at [25] per McMillan J (noting that the testator’s three prior wills ‘assist the court in determining what her intentions would be likely to be, or what her intentions

64. 65. 66. 67. 68. 69. 70.

71. 72. 73. 74. 75. 76.

77. 78.

79. 80.

81.

82.

might reasonably be expected to be, if she had testamentary capacity’). NSW s 22(b). ACT s 16E(b); Tas s 24(e) (see s 33(f) as regards applications to the Guardianship and Administration Board). NT s 21(b). Qld s 24(d). WA s 42(1)(b). R v J [2017] WASC 53; BC201701462 at [19], [20], [31] per Chaney J (see WA s 41(1)(d), (f)). Indeed, in Queensland, Ann Lyons J in McKay v McKay (2011) 4 ASTLR 429; [2011] QSC 230; BC201105987 adopted the distinction expressed by Palmer J in Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103, discussed in the text, between the nil capacity, the pre-empted capacity and the lost capacity cases. Cf Re Keane [2012] 1 Qd R 319; [2011] QSC 49; BC201101648 at [72], [73] per Daubney J (who did not consider that the Fenwick approach should apply in Queensland because the legislation in Queensland does not use the phrase ‘reasonably likely’; but see the remarks of Ann Lyons J in McKay at [79] on this point; see also Sadler v Eggmolesse [2013] QSC 40; BC201300813). (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103. (2004) 9 VR 495; [2004] VSCA 112; BC200403477, discussed at 3.12. Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [148]. Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [153]. Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [145]. [2011] VSC 45; BC201100635. See also Van der Meulen v Van der Meulen [2014] 2 Qd R 278; [2014] QSC 33; BC201401248 (where Jackson J found evidence of at least four statements by the testator of broadly similar wishes over 15 years, namely to benefit persons closest to him by family, and gave effect to the substance of this by a statutory will). Cf Burns v Estate of Burns (2013) 11 ASTLR 362; [2013] NSWSC 1550; BC201314365 at [31] per Black J (where only a single statement made years earlier, at a time when the putative testator’s financial position was different, was found to provide no real assistance in determining his actual wishes). See 3.15. Cf Re RB [2015] NSWSC 70; BC201500589 at [35], [36] per Lindsay J (opining that ‘[a]lthough evidence of statements of testamentary intention may be desirable in support of or in opposition to an application for a statutory will, the court may be required to rise above such evidence in the proper disposition of an application’: at [36]). Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [159]. Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [161]. See, for example, Re Matsis (2012) 8 ASTLR 361; [2012] QSC 349; BC201208626 (involving an application for a statutory codicil on behalf of the applicants’ incapacitated grandfather (M) to hold the residuary estate on testamentary trusts for the benefit of the grandchildren; Ann Lyons J granted the application, influenced by, inter alia, a finding that incorporating testamentary trusts into the will was entirely consistent with M’s entrepreneurial approach, an approach ‘strongly instilled into his grandsons and he had a very strong emphasis on keeping the wealth within the family’: at [28]). Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [166]. See also Re Will of Jane [2011] NSWSC 624; BC201105369 at [68] per Hallen AsJ (in a ‘lost capacity’ case, speaking in terms of ‘a degree of precision about the actual, or reasonably likely, intentions of the person lacking capacity and that what is proposed reflects those intentions’). Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [170].

83. 84. 85. 86.

Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [171]. Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [176]. [1991] 3 All ER 866 at 870, as to which see 3.9. Secretary, Department of Family & Community Services v K [2014] NSWSC 1065; BC201406362 at [80] per Lindsay J. 87. Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [177]. See, for example, Deecke v Deecke [2009] QSC 65; BC200902339 (involving a woman who at age 20 sustained a major brain injury, whose estate was significant due to a settlement sum received in respect of her claim for medical negligence; as the evidence revealed that the relationship with her mother (the applicant) had been a close one, later in a caregiver capacity, whereas the relationship with her father (the second respondent) was far more distant, Mullins J acceded to an application for a statutory will benefiting the mother and giving a small bequest to the charity that had assisted the woman). 88. Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [185]. 89. Editorial comment to Re Application of Fenwick (2009) 1 ASTLR 440 at 440. 90. See, for example, Burns v Estate of Burns (2013) 11 ASTLR 362; [2013] NSWSC 1550; BC201314365; JW v Siganto [2015] QSC 300; BC201510568. 91. This explains, for instance, why a court may well ‘disinherit’ a person who has engaged in financial or other abuse of the testator: see, for example, VMH v SEL [2016] QSC 148; BC201605451 (where Jackson J made a statutory will in lieu of the previous wills, which had left substantial assets to the testator’s former carer, given a finding that the carer had misused the testator’s funds). It also explains why a parent of a ‘nil capacity’ testator who has had little or no contact with the testator is unlikely to be a strong candidate for testamentary provision: see, for example, RKC v JNS [2014] QSC 313; BC201411434. At the same time, it has been said that a court ‘must be careful not to be overly judgemental about personal faults within a family, and how such faults may impact on family relationships’: Secretary, Department of Family & Community Services v K [2014] NSWSC 1065; BC201406362 at [81] per Lindsay J (adding that a court ‘should be slow to make orders designed, by imputation of an intention to an incapacitated person, to punish a member of family or to recast the law governing beneficial entitlements on an intestacy’: at [96]). 92. [2011] NSWSC 624; BC201105369 at [81]. 93. (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103. 94. Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 112; BC200403477 at [13] per Dodds-Streeton JA. See also Re Will of Jane [2011] NSWSC 624; BC201105369 at [85], [96] per Hallen AsJ. 95. Secretary, Department of Family & Community Services v K [2014] NSWSC 1065; BC201406362 at [64] per Lindsay J. See also Van der Meulen v Van der Meulen [2014] 2 Qd R 278; [2014] QSC 33; BC201401248 at [51] per Jackson J (disclaiming any ‘definitive principle to be applied here’, as well as branding it ‘of no assistance to articulate factors which influence or decide this particular case as though they have a legal significance beyond the exercise of the discretion in the particular circumstances’); ADT v LRT [2014] QSC 169; BC201406178 at [69] per Flanagan J (describing the discretion as ‘at large’). 96. (2012) 9 ASTLR 535; [2012] NSWSC 989; BC201314232. 97. Hausfeld v Hausfeld (2012) 9 ASTLR 535; [2012] NSWSC 989; BC201314232 at [13]. 98. [2014] QSC 169; BC201406178. 99. ADT v LRT [2014] QSC 169; BC201406178 at [82]. 100. Re Will of Jane [2011] NSWSC 624; BC201105369 at [85], [86] per Hallen AsJ. 101. Hoffmann v Walters (2007) 98 SASR 500; [2007] SASC 273; BC200705857 at [18]–[20] per Debelle

102. 103.

104. 105. 106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116. 117. 118.

119. 120. 121.

J; Re Application of Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; BC200905103 at [193]– [199] per Palmer J; Re RAK (2009) 265 LSJS 263; [2009] SASC 288; BC200908333 at [25], [26] per Gray J. See further R Williams and S McCullough, Statutory Will Applications: A Practical Guide, LexisNexis Butterworths, Australia, 2014, Ch 6. As to applications for family provision, see Chapter 17. ACT s 16F(1); NSW s 23(1); NT s 24; Qld s 26(1); SA s 7(9); Tas s 27; Vic s 25(1); WA s 40(4). ACT s 16F(2); NSW s 23(2); Qld s 26(2). Other than in South Australia the legislation states that the court must not make an order for a statutory will unless the person for whom the order is sought is alive at the time of the order: ACT s 16A(3); NSW s 18(3); NT s 19(3); Qld s 21(2)(b); Tas s 22(3) (see s 30(6) as regards applications to the Guardianship and Administration Board); Vic s 21(3); WA s 40(2)(a). In South Australia the statutory language makes this implicit rather than explicit: Re Estate of Brown (deceased) (2010) 106 SASR 516; [2010] SASC 90; BC201002031 at [14] per Gray J. Re Estate of Brown (deceased) (2010) 106 SASR 516; [2010] SASC 90; BC201002031 at [17] per Gray J. Re Estate of Scott (2014) 13 ASTLR 574; [2014] NSWSC 465; BC201402920 at [105] per Lindsay J. NSW s 18(5), to which Lindsay J in Re Estate of Scott (2014) 13 ASTLR 574; [2014] NSWSC 465; BC201402920 at [104]–[106] made reference. ACT s 16A(5); Qld s 21(3). Vic s 25(1). See 2.1. See, for example, QLRC, MP 29, p 41. ACT ss 8A, 8B; NSW s 16; NT s 18; Qld ss 19, 20; SA s 6; Tas s 20; Vic s 20. ACT s 8A(1); NSW s 16(1)–(3); NT s 18(1), (3); Qld s 19(1), (2); SA s 6(1), (2); Tas s 20(1), (2); Vic s 20(1)–(4). ACT s 8A(2); NSW s 16(4); NT s 18(2); Qld s 19(3); SA s 6(3); Tas s 20(3); Vic s 20(5). As to these requirements, see 4.6–4.12. NSW s 16(5)(c); NT s 18(4)(a); Qld s 20(c); SA s 6(4)(a); Vic s 20(6). R Croucher, ‘Towards Uniform Succession in Australia’ (2009) 83 ALJ 728 at 733. As to this power, see 3.1–3.21. (2000) 50 NSWLR 401; [2000] NSWSC 1239; BC200007950. The case was decided under an equivalent provision in earlier legislation. See also Re J, LC [2014] SASC 20; BC201401077 (where Gray J authorised a will by a 16-year old (LCJ), whose mother had died and had only irregular contact with her father, appointing her guardians (maternal grandparents) as executors and trustees; his Honour found LCJ to be an intelligent young woman, who demonstrated an understanding of the application and the terms of the proposed will: at [6]). As to the intestacy rules, see Chapter 9. Application of M (2000) 50 NSWLR 401; [2000] NSWSC 1239; BC200007950 at [11]. The case is unreported but mentioned by P E Powell, ‘Recent Developments in New South Wales in the Law Relating to Wills’ (1993) 66 ALJ 25 at 27.

[page 102]

CHAPTER 4

Formal Elements Nature, Scope and Rationale Nature and scope of formality requirements Rationales for formality requirements

4.1 4.1 4.4

The Formalities Writing Signature What can amount to signature Signature by another person on the testator’s behalf Position of the signature Intention by the signature to give effect to the will Signing or acknowledgment of signature in presence of two witnesses Presence of two witnesses Attestation and subscription Need for ‘presence’ Attestation clauses and the presumption of due execution

4.5 4.5 4.6 4.6 4.7 4.8 4.9 4.12 4.13 4.15 4.17 4.19

Privileged Wills Backdrop and rationale Privileged wills in the Australian Capital Territory and South Australia The relevant provisions Meaning of ‘active’ or ‘actual’ service The mental element

4.21 4.21

Judicial Dispensing Power Backdrop Curial approach to the dispensing legislation Criteria for exercise of dispensing power

4.30 4.30 4.33 4.35

4.23 4.23 4.25 4.28

First requirement: need for a ‘document’ Second and third requirements: focus on ‘testator’s’ intention General considerations applicable to the third requirement Determining the requisite intention Factors in ascertaining the requisite intention Timing of intention Admissibility of evidence Standard of proof

4.36 4.37 4.38 4.38 4.44 4.49 4.51 4.52

Disqualification of Witnesses Historical disqualification of witnesses taking under the will

4.53 4.53 [page 103]

Modern ouster or qualification of disqualification

4.57

Incorporation by Reference Nature of the doctrine Existence of document at date of execution of will Document referred to as already in existence Document identified in will

4.61 4.61 4.64 4.66 4.67

Secret Trusts Nature of secret trusts Elements ‘Fully secret’ trusts ‘Half-secret’ trusts Disclaimer by, or death of, secret trustee Form of trust — express or constructive? Operation outside the will Distinguishable from doctrine of incorporation by reference

4.68 4.68 4.71 4.72 4.74 4.76 4.77 4.78 4.79

Nature, Scope and Rationale

Nature and scope of formality requirements 4.1 In all Australian jurisdictions, following a longstanding English statutory precedent,1 the validity of a will demands, inter alia, compliance with formalities set by the wills legislation.2 Minor distinctions exist between the statutory formulations, but fundamentally they require that: • the will be in writing; • the will be signed by the testator, or by some other person in the presence and by the direction of the testator; • the will be signed, or the signature acknowledged, in the presence of two or more witnesses who are present at the same time; and • each witness attests and signs the will in the testator’s presence. These formalities also largely reflect those listed in the Convention Providing a Uniform Law on the Form of an International Will 1973, to which Australia has acceded, under which the wills legislation in each state and territory has been amended to recognise what is termed an ‘international will’.3 Each of the above elements is elaborated below. 4.2 In the Australian Capital Territory and South Australia the formality requirements do not apply to ‘privileged wills’, made by certain members of the armed and maritime services in defined circumstances.4 Also, in all jurisdictions statute empowers the respective Supreme Courts to admit a will to probate, despite failure to comply with the formal requirements. This initiative seeks to address the potential injustice arising where a testator’s ostensible intention that a document operate as a will is frustrated by some technical failure to comply with the [page 104] formalities. Since its first iteration, in 1975 in South Australia,5 a body of case law has ensued, and is considered below.6 4.3 No treatment of wills formalities is complete without mention of the ‘interested witness’ rule, which retains some vestiges in several Australian jurisdictions.7 Nor should it omit discussion of the relationship between

formality requirements and the doctrine of incorporation by reference,8 or overlook the law of secret trusts, which though often having testamentary effect, operates outside the formalities.9 The remaining parts of the chapter are devoted to these doctrines.

Rationales for formality requirements 4.4 A body of literature has identified functions that may be served by formality requirements,10 which ultimately collapse into four basic functions. First, there is an ‘evidentiary’ function: the formalities serve to provide proof of what the testator intended.11 As a will only comes into effect upon a testator’s death,12 the written document is at that time the chief physical manifestation of his or her testamentary wishes. It preserves in permanent form the language chosen by the testator to express those wishes. Quite apart from the requirement of writing, the testator’s signature authenticates the document, identifies its maker and may provide some evidence of completeness, and attestation by disinterested witnesses acts as a safeguard against matters being inserted into a will without the testator’s knowledge.13 Second, formalities serve a ‘cautionary’ function, emphasising to a testator the solemnity of the testamentary act. Faced with the formality requirements, putative testators will, it is reasoned, likely be cautious and careful in expressing their intentions. In the words of a commentator:14 The presence of the signature shows that the instrument was adopted by the testator as his will and that the writing was not merely deliberative, or a preliminary draft, or haphazard scribbling. The requirement for attestation also confirms the testator gave due consideration to the consequences of the testamentary act.

Third, a ‘protective’ function is arguably served by the formalities, by discouraging undue influence, fraud, forgery and other impropriety. Finally, there is what is termed a ‘channelling’ function. The commonality underscoring formality requirements standardises testamentary activity to a readily recognisable form. In turn this assists in simplifying the task of establishing the integrity of wills in applications for probate. [page 105]

The Formalities Writing 4.5 A will must be ‘in writing’ to be valid. The phrase, though not defined in the wills statutes themselves, is given an inclusive, and in any case broad, meaning in the Acts interpretation legislation, to refer to any way of representing or reproducing words in visible form, including via words, figures, drawings or symbols, and through means including photography, photocopying, lithography or typewriting.15 A will may, therefore, be typed, printed, lithographed or photographed. More than one form of writing is permitted, such as in the case of a printed will form where the ‘blanks’ are filled in by either writing or typing. However, if the will is in fact handwritten, the same method should be used throughout, as it has been held, in a case where both ink and pencil writing were used, that the pencilled writing was deliberative only, and not testamentary.16 This assumed, of course, that the writing in ink could ‘stand alone’ and was intended to supersede that in pencil.17 The writing need not be continuous, so that blank spaces on pages will not invalidate the will, though it may lead to problems of construction.18 There is no restriction on the language used by the testator, but, if a foreign language is used, authenticated translation is required.19 A will written in code may be admitted to probate, provided there is extrinsic evidence available to decipher its meaning.20 There are also no restrictions upon the material on which the testamentary intentions are expressed. In the oft-quoted case of Hodson v Barnes,21 a will written on an empty egg shell satisfied the requirement of writing (although the court ultimately held that the writing was not intended as a will). In Canada it is reported that a tractor fender on which a will had been scratched was cut out and brought into probate.22 More recently, in In the Estate of Slavinskyi (deceased),23 Legoe J admitted to probate a will written on the wall of the testator’s house. The problem of lodging the original will with the Probate Registry was overcome by photograph and affidavit, although it appeared that as the will was written on plasterboard it was physically possible to file in the registry. There is no requirement, except as prescribed by statute, that a will be dated, and so the absence of a date or proof as to its exact date of execution is

ordinarily no obstacle to a grant of probate.24 This is because, in the absence of a contrary intention, statute declares that a will is to be construed and to take effect as if it had been executed immediately before the death of the testator.25 It remains advisable, however, that a will be dated, if for no other reason than to indicate whether it supersedes an earlier will. [page 106]

Signature What can amount to signature 4.6 The requirement that the testator must sign the will has been construed broadly, it being sufficient that the testator has placed some mark on the will intending that it be his or her signature. ‘[T]he real test’, it has been said, ‘is whether what has been written by the testator was written by him as an authentication of what precedes it as his will’.26 To this end, a sufficient signature has been found to include: a mark regardless of whether or not the testator could write;27 an inky thumb print;28 a rubber-stamped impression of the testator’s name;29 an assumed name;30 a phrase descriptive of the testator (such as ‘your loving mother’);31 and the testator’s initials32 or part of the testator’s signature.33 Typing of the deceased’s name at the foot of the computer document has also been treated as the equivalent of a signature.34 In any event, the advent of electronic signatures, and their statutory recognition,35 speaks to their validity in will-making. In each instance, though, the mark must be intended to constitute an effective signature for the purpose of execution. A mark made by accident, such as where the testator’s arm moved across the document, cannot amount to a signature, as the testator does not intend it as such.36 Similarly, signing in pencil may evince a merely deliberative act unless it can be shown to reflect an intention to effectuate the will.37

Signature by another person on the testator’s behalf 4.7

The wills legislation makes clear that a will may be signed for the testator

by another person, provided the signing is in the presence38 and at the direction of the testator. This affords illiterate or physically incapable persons the ability to execute a valid will. The actual signatory here may sign either his or her own name or the testator’s name, or indeed both,39 and may [page 107] also witness the will.40 Some positive communication from the testator is, however, required in order to amount to a valid direction; it cannot be implied from passivity or acquiescence.41

Position of the signature 4.8 In their original form the wills statutes, following the English lead, required that the testator sign the will ‘at the foot or end thereof’, in order to prevent unauthorised interpolations.42 Yet testators’ frequent disregard for this requirement, causing many wills to be invalid, and the availability of modern scientific evidence capable of revealing unauthorised interpolations, led to its removal in all Australian jurisdictions (and also in England).43 This is made explicit other than in South Australia and Western Australia.44 In South Australia it is implicit in the absence of any such requirement in the signature formalities45 and in Western Australia it stems from a requirement only that the signature appear ‘in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator’s will’.46

Intention by the signature to give effect to the will 4.9 The wills legislation (as is evident from the Western Australian provision mentioned above) requires that the testator’s signature be made with the intention of authenticating the will.47 Courts have also interpreted this requirement with liberality. Wood v Smith48 illustrates this. The testator had, in his own handwriting, written a document commencing with the words ‘my will by Percy Winterbone’, followed by dispositions of his property. Upon completion he requested two persons to sign as witnesses. When the witnesses

pointed out that he had not yet signed the will, he referred them to the opening words of the will where his name appeared. The validity of the will was challenged for lacking an operative signature, the argument being that as the ‘signature’ had been written on the will prior to the dispositions, it could not have been intended to ‘give effect’ to its contents. The English Court of Appeal rejected this argument, finding that the testator had indicated in clear terms to the witnesses that he intended his name at the outset of the document to give effect to the entire document. In delivering the judgment of the court, Scott LJ stated that ‘if the writing of the will and the appending of the signature are all one operation, it does not matter whereabouts on the document or when in the course of the writing the signature is appended’.49 4.10 The requirement will also be satisfied if the will is enclosed in an envelope on which the testator’s signature appears. In this event, the paper and envelope are together capable of constituting the testator’s will.50 This assumes that the signature is intended to give effect to the will. But if the evidence reveals that it appears on the envelope merely to identify to whom [page 108] its contents belong or refer,51 say, if the testator is under a mistaken impression that the paper contained therein was effectively signed, it is not effective. 4.11 If a will consists of more than one page, the sheets should be fastened before execution,52 both to protect against loss or fraud53 and to rebut any suggestion that the testator did not consider each as part of the one document. Sufficient intention can nonetheless be found even as regards a number of unattached sheets if it is proved that the sheets were in the same room at the time of execution.54

Signing or acknowledgment of signature in presence of two witnesses 4.12 The testator must sign the will in the presence of two or more witnesses or, if the will is already signed,55 the testator may acknowledge, including by

way of gesture,56 the signature in the presence of those witnesses. As any said acknowledgment is of the signature, not the will itself, it is not essential that the witnesses should know that the document is a will.57 But a valid acknowledgment of the testator’s signature requires that the witnesses either see or have the opportunity to see the signature.58 Lacking this, there is no valid acknowledgment,59 and the fact that the concealment is unintentional is irrelevant.60

Presence of two witnesses 4.13 The wills legislation requires that two or more witnesses be present at the same time when the testator’s signature is made or acknowledged.61 As noted above, each witness must either see or have the opportunity of seeing the testator’s signature or acknowledgment. It is clear, therefore, that a blind person cannot be a witness.62 Nor is the requirement met if a witness is so far away at the relevant time that he or she lacked the physical opportunity of seeing the signature at the same time as the other witness.63 Presence here also encompasses ‘mental’ presence, in the sense of not being ‘asleep or intoxicated or of unsound mind’.64 4.14 As the wills legislation contains no prescription, aside from the reference to blindness, as to witness capacity, it is the general law that applies, and so any person competent to be a witness in civil proceedings, including a minor presumably, is competent to witness a will.65 [page 109]

Attestation and subscription 4.15 Whereas the testator must sign, or acknowledge, his or her signature in the presence of both witnesses, the witnesses’ attestation and subscription, though it must be in the testator’s presence, need not necessarily be in each other’s presence.66 ‘Attestation’ means the mental act of witnessing the testator’s signing or acknowledgment, and serves ‘simply to verify the authenticity of the deceased’s signature and to ensure that it was made

voluntarily’;67 ‘subscription’ is the actual signing of the will by the witness. To be valid, therefore, the witnesses must attest and subscribe the will after the testator has signed (or acknowledged).68 Signature in this respect has the same meaning as considered above in the context of the signature of the testator,69 except that in this instance another person cannot sign on behalf of a witness. 4.16 There is no need for a witness’ signature to be located in any particular place on the will. It need not, say, be at the end of the will, or next to or below the testator’s signature. Nor need each witness sign in the same location. It is prudent, nonetheless, for the witnesses to subscribe their signatures below that of the testator at the foot or end of the will to avoid suggestions that the signatures served a purpose other than attestation.70 This derives from the need for the witnesses to sign the will with the intention of witnessing the testator’s signature, and not, say, for the mere purpose of identification.71 It is also essential, though, that the witnesses attest the actual operative72 signature of the testator, and not some other signature.73 But there is no need for a witness to know that the document he or she attests and signs is a will.74

Need for ‘presence’ 4.17 The requirement that the witnesses attest and subscribe (sign) in the testator’s ‘presence’ has been interpreted, beyond actual sighting by the testator, to include where the testator was in a position to see the signing. Thus, if a testator should sign a will, and a witness then subscribes in another room and signs, the attestation will be valid if it can be shown that the testator could, from the position which he or she occupied at the time of signing, have seen the witness subscribe the will.75 Again, ‘presence’ connotes mental awareness of what is happening; it must be shown that the testator was aware that the witnesses were subscribing the will,76 and vice versa.77 [page 110] 4.18 A particular problem relating to presence is highlighted by Re Colling (deceased).78 The testator, during a stay in hospital, requested another patient and a ward nurse to witness his signature to his will. The nurse was called to

attend to another patient whilst the testator was signing the will, which signature he completed in her absence, but in the presence of the other witness, who then signed. Upon the nurse’s return, the testator and the other witness acknowledged their signatures, and she signed as witness to the acknowledgment. The will was invalid, Ungoed-Thomas J ruled reluctantly, reasoning as follows:79 Here, clearly, that part of the name Colling, which was subscribed before [the nurse] departed from the scene of signature — as, indeed, the completion of the signature so clearly establishes — was neither the name itself nor was it some mark which was intended to represent the name. It was not the signature of the testator as it is only such part of his name, which did not constitute his signature, as was signed in the presence of both the witnesses; with the result that the requirements of [the wills legislation] have not been complied with. I come to this conclusion with the greatest regret, and only because I feel compelled to do so despite its so patently defeating the intention of the testator and involving no advantage, as far as I can see, in the avoidance of any fraud.

The testator had not made or acknowledged his signature in the presence of both witnesses before attestation. It follows that the witnesses cannot be split up between a signature and a subsequent acknowledgment, or indeed between two separate acknowledgments.

Attestation clauses and the presumption of due execution 4.19 The wills statutes state either that no form of attestation is required80 or, to essentially the same effect, that a will need not include an attestation clause.81 Yet it remains desirable to include an attestation clause, as it facilitates the grant of probate. It provides prima facie evidence that the statutory requirements have been fulfilled. A simple form, approved in In the Estate of Selby-Bigge (deceased) ,82 is as follows: ‘Signed by the abovenamed testator in our presence and attested by us in the presence of him and each other’. Without an attestation clause, it becomes necessary to prove, usually by affidavit evidence by one or both witnesses or by other persons present at the time of execution, that the statutory requirements are fulfilled.83 4.20 The law does, in this regard, recognise a ‘presumption of due execution’,84 encapsulated in the maxim omnia praesumuntur,85 which operates strongly in the face of a formal attestation clause.86 In this context, the fact that both witnesses are dead, unavailable or undiscoverable, or that one or both lack recollection of the events surrounding the execution of the will,

[page 111] highlights the utility of the presumption.87 It may apply where the evidence of one or both witnesses is rejected, or is conflicting, if the evidence against due execution is negated or rejected.88 The presumption, of course, is rebuttable by compelling evidence that the will was not duly executed.89

Privileged Wills Backdrop and rationale 4.21 Privileged wills derive from Roman law, which, though it prescribed strict formalities for the execution of wills, allowed soldiers and sailors, while on actual military service, the privilege of making informal wills.90 That privilege translated to English law in 1677 via the Statute of Frauds.91 The justifications proffered for the concept of privileged wills include the relatively low level of education of privileged testators, the unavailability of consultation and professional advice to soldiers, the riskiness of warfare and sea travel and the psychological benefits to such testators in time of war and danger. Yet in the modern environment, the concept has been widely criticised. For instance, in a 1986 report the New South Wales Law Reform Commission challenged these justifications:92 Many of these reasons, if ever fully justified, are quite inappropriate to modern conditions of warfare, service in defence or merchant marine forces, or sea travel. The concept of a special class of persons who alone are exposed to the dangers of active service is no longer true. Many civilians are placed in positions that would call forth one or more of the justifications enumerated in the previous paragraph, and not necessarily in time of war (eg policemen, firefighters). Sea travel in peace time is relatively free from danger. The general level of literacy and education in the community as a whole is markedly higher than in 1677. Will-making is nowadays regarded as a relatively simple activity and the ready availability of printed will forms attests to a widespread belief in the community that there is no necessary need for skilled advice. Now that persons over 18 can make wills the need for conferring a privilege upon infant testators who are to go to war has largely passed … In any event the modern rules governing succession of persons who die intestate when coupled with the Family Provision Act 1982 [now Ch 3 of the Succession Act 2006 (NSW)] tend to ensure that the failure to make or revoke a will does not necessarily defeat the proper moral and social obligations of deceased persons.

To the foregoing can now be added the availability of the judicial

dispensing power,93 bearing in mind that it is not available to validate purely oral wills.94 The report recommended the abolition of the concept, which occurred in 1989 in New South Wales.95 Victoria abolished privileged wills in 1998,96 followed by the Northern Territory in 2001,97 Queensland in 2006,98 Western Australia in 200899 and then Tasmania in 2009.100 In Australia only the Australian Capital Territory and [page 112] South Australian Acts continue to recognise privileged wills.101 Yet privileged wills remain in the 2007 New Zealand legislation,102 in England103 and in Canadian provinces.104 4.22 Generally, the privilege entitled a testator to make an informal will, including a completely oral will.105 If in writing, there was no need for signature or witnessing.106 Unsurprisingly, privileged wills often raised issues as to proof and construction, although the curial approach was liberal in giving effect to such testamentary wishes. Unlike its civil law counterpart, wherein the privilege expired once the circumstances under which the will was made ceased to apply, at common law a privileged will continued to death, unless altered or revoked in the interim.107

Privileged wills in the Australian Capital Territory and South Australia The relevant provisions 4.23 The operative Australian Capital Territory provision states that a declaration, either oral or in writing, by a person within the privileged class of his or her intention with respect to the disposal of property on or after his or her death ‘is as valid and effectual as it would have been if it had been made in a will executed in accordance with the [formality] provisions’.108 It defines the privileged class of persons as:109 • members of the Defence Force who are in actual armed service;

persons employed outside Australia as representatives of organisations • rendering philanthropic, welfare or medical service to members of the Defence Force; and • prisoners of war or persons interned in a country under the sovereignty, or in the occupation, of the enemy or in a neutral country who became prisoners of war or were so interned as a result of war or warlike operations and were, immediately before their capture or internment, persons included in a class of persons specified in either of the two preceding dot points. It makes specific provision for the admissibility of evidence with respect to the testator’s intention, which broadens what would under the rules of evidence otherwise be admissible for this purpose.110 [page 113] 4.24 The South Australian wills legislation adopts a simpler provision. It entitles any person who ‘is on active service as a member of a military, naval or air force of the Commonwealth’ to dispose of his or her property by what it terms a ‘nuncupative will’.111 It clearly envisages a narrower scope for privileged wills than its Australian Capital Territory counterpart. That the term ‘nuncupative’, which though not defined in the legislation, in its ordinary (archaic) meaning targets instructions delivered orally does not mean that a privileged will need necessarily be entirely or even partly oral.

Meaning of ‘active’ or ‘actual’ service 4.25 The above provisions refer, respectively, to ‘actual armed service’ and ‘active service’. Engagement in actual or active service historically required a solider to be either at or close to the place where the fighting was occurring. A soldier on actual service was, the law reasoned, in a like position to a Roman soldier in expeditione. Such a soldier could make a privileged will because he could not obtain assistance to make a formal will. The foregoing has since been discredited, as appears from the following remarks of Denning LJ in Re Wingham (deceased), dealing with the phrase ‘actual military service’ in the

English statute:112 The words of our statute are in plain English: ‘in actual military service’. I find them easier to understand and to apply than the Latin: ‘in expeditione’. If I were to inquire into the Roman law, I could perhaps after some research say how Roman law would have dealt with its soldiers on Hadrian’s Wall or in the camp at Chester, but I cannot say how it would have dealt with an airman in Saskatchewan, who is only a day’s flying from the enemy. Nor can anyone else. This supposed throw-back to Roman law has confused this branch of the law too long. It is time to get back to the statute.

The test now appears to be that a soldier is on actual military service if he or she is serving with the armed forces in connection with military operations that are or have been taking place, or are believed to be imminent. So while soldiers in barracks do not have the privilege during peacetime, if military operations are imminent, soldiers on embarkation or mobilisation and in training are privileged. After actual hostilities cease, the privilege may extend to include soldiers who are on duty as members of the occupation forces, are recovering from injuries or are prisoners of war.113 4.26 A soldier can be on actual military service even if no war is declared, and the actual activities are directed to support civil power. In Will of Anderson114 an Australian soldier was killed when part of an Australian contingent was made available for the assistance of the government of the Federation of Malaya to suppress terrorism. His privileged will was upheld, Myers J reasoning as follows:115 In the present case there was no state of war and it is difficult to see how there could have been, for there was no nation or state with which a war could have been proclaimed to exist, but in all other respects there was no difference between the situation of a member of this force and that of a member of any military force in time of war. In my opinion the deceased was in actual military service and it would be unreasonable to hold otherwise.

4.27 Moreover, the civil insurrection may be in one’s own country, such as in Re Jones (deceased),116 where a corporal of the British Parachute Regiment was shot whilst on patrol in Northern Ireland. Sir John Arnold P held that the fact that the ‘enemy’ was not a uniformed force engaged in regular warfare, or an insurgent force organised upon conventional military lines, ‘but rather a conjuration of clandestine assassins and arsonists’,117 did not affect the question as to whether the soldier was engaged in actual military service. The corporal was accordingly entitled to the privilege.

[page 114]

The mental element 4.28 While privileged wills do not require formality, the deceased’s written or oral statements must be shown to have been made with the intention to operate as a will.118 But it is not necessary to establish that the testator knew that he or she was making a will or that he or she had power to make a will; what is essential is a deliberate intention to give expression to his or her wishes as to the disposal of property after death.119 Thus, in Re Lowe (deceased)120 the oral statement by a soldier to his commanding officer, ‘I want to leave everything to Miss Tipton’, was held to be a sufficient expression of intention. A similar result was attained in Re Stable (deceased) ,121 where the operative words the testator used were, ‘If anything happens to me, and I stop a bullet, everything of mine will be yours’. Parallel reasoning has led passages in letters and on postcards to be held to constitute privileged wills.122 4.29 The foregoing stands in contrast to statements of future intention. The deceased may make a statement, for example, indicative that at some future time a will is to be made, or may state what he or she believes will happen under the rules relating to intestacy. In neither case is there animus testandi, and thus no privileged will.123 For the same reason, nor are statements made in casual conversations admissible as a privileged will.124

Judicial Dispensing Power Backdrop 4.30 The somewhat technical nature of the formality requirements, and the consequent strict compliance expected by the courts, has generated multiple decisions that have, as judges have conceded,125 frustrated the likely intentions of the testator. South Australia was the first jurisdiction to statutorily respond to this issue, upon a recommendation by its Law Reform Committee in 1974,126 reflecting its concern, it has been said, ‘regarding the plight of wouldbe testators who attempted to execute a will but failed for want of satisfying the formal requirements’.127 The Wills Act 1936 (SA) was amended via inclusion

of s 12(2) in 1975, which in its original form read as follows: A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed with the formalities required by this Act, be deemed to be a will of the deceased person if the Supreme Court, upon application for admission of the document to probate as the last will of the deceased, is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will.

[page 115] Following several other amendments, including one in 1994 that reduced the standard of proof to the civil standard, the current South Australian provision empowers the court to admit a document to probate even though it has not been executed with the statutory formalities required if it is satisfied that it ‘expresses testamentary intention of the deceased’ and that the deceased ‘intended the document to constitute his or her will’. 4.31 Albeit with various but not substantial variations, the South Australian subsection formed the model for the law in other Australian jurisdictions,128 although Queensland experimented with an alternative model before returning to the fold.129 Victoria was the last jurisdiction to address the matter, via its new wills legislation in 1997, also against a backdrop of a law reform committee recommendation,130 which benefited from the judicial consideration of the power in other jurisdictions. This led the National Committee for Uniform Succession Laws to propound uniform legislation based on the Victorian model.131 A similar initiative has seen implementation in some Canadian provinces (albeit not via a uniform model)132 and in New Zealand,133 whereas some states in the United States have enacted a more restricted ‘harmless error’ rule.134 An equivalent statutory initiative has, however, yet to translate to English law.135 [page 116] 4.32 The alternative approach originally adopted by the Queensland Parliament, upon the recommendation of the Queensland Law Reform

Commission,136 was based on a ‘substantial compliance’ doctrine advocated by an American academic.137 It empowered the court to admit to probate a testamentary instrument ‘executed in substantial compliance with the formalities … if the Court is satisfied that the instrument expresses the testamentary intention of the testator’.138 Its terms clearly envisaged that admission of a document to probate without the requisite formalities could occur only if the court was satisfied that there had been ‘substantial compliance’ with those formalities, irrespective of whether or not the court was satisfied that the document expressed the testator’s testamentary intentions.139 Were the latter the decisive consideration, one Queensland judge remarked, ‘there would be no need for the formalities which have for centuries been associated with the due execution of a will’.140 The reported cases on the provision, unsurprisingly, adopted a restrictive interpretation. In particular, many cases involving infelicities in witnessing fell outside the dispensing power. For example, in Re Grosert141 the will was signed by the testator and bore the signatures of two witnesses. One witness gave evidence that only she was present upon signing and the other witness could not be found. Vasta J held that, while there was no doubt that the document expressed the testator’s testamentary intention, ‘there has been a lack of compliance with what I would regard as a most important provision of the section’.142 And in Re Johnston143 the deceased signed the document in the absence of witnesses. Over a course of a week, he then secured, separately, the signature of two witnesses, neither of whom saw any part of the document, though one was told that it was a will. As the facts revealed what Thomas J described as ‘substantial departures from even the basic formal requirements’,144 it was unnecessary to inquire into intention. Some later decisions exhibited a more lenient approach,145 but the prevailing restrictive interpretation its architect saw as practically nullifying the intended beneficial purpose of the dispensing power.146 The foregoing prompted Queensland to abandon the ‘substantial compliance’ doctrine in 2006,147 and replace it with the more conventional judicial dispensing power.

Curial approach to the dispensing legislation 4.33

The remedial object of the dispensing power, and the attendant liberal

construction of the statutory language, are clearly recognised. In the words of King CJ in In the Estate of Williams (deceased):148 [The dispensing power] is a remedial provision designed to avoid failure of the testamentary purpose caused by non-compliance with the formalities … arising out of ignorance or inadvertence. There is no reason to suppose that Parliament intended to limit the circumstances in which the remedial provision would operate and no reason for the Court to construe the subsection other than in accordance with the natural meaning of the words used.

The case law, to this end, reveals that the dispensing power is capable of addressing the entire spectrum of errors, although his Honour’s reference to ‘ignorance or inadvertence’ should not [page 117] be construed as limiting the scope of the power. It has been utilised in instances where, say, the testator failed to (properly) sign the document, where the will was unattested, where witnesses were not (concurrently) present, and where unauthorised alterations and additions were made to the document. There may even be a combination of these defects. 4.34 However, the wording is not so broad as to entirely, or even substantially, discount the formalities. The formalities would otherwise be unduly relegated in importance.149 Nor is the dispensing power a licence to alter the core principles of probate law with respect to the mental element.150 Thus, even if an informal will otherwise meets the criteria for admission to probate, it cannot be admitted in the event that it lacks the requisite testamentary intention,151 say, because it is made as a joke or for some other non-testamentary purpose, or is expressed in terms no more than tentative or precatory.152 The same ensues if an informal will is affected by fraud153 or undue influence.154 More fundamentally, it must still be shown that the testator had mental capacity.155 As to the latter, it has been observed that the presumption of capacity arising from the due execution of a formal will156 should not be extended to an informal will; after all, the due execution of a formal will before witnesses is, practically speaking, a ‘strong check’ against the making of a will by a person who lacks testamentary capacity, and thus ‘provides a sound basis for the presumption which is lacking in the case of

informal wills’.157 The above issues have not infrequently come to the fore in cases where the maker of the informal will has suicided,158 but they may nonetheless surface in any circumstance where the evidence casts a cloud over the testator’s mental capacity or testamentary intention.159 [page 118]

Criteria for exercise of dispensing power 4.35 The relevant provisions envisage that a document may be admitted to probate notwithstanding non-compliance with the formalities if three requirements are met: first, there must be a document; second, that document must purport to embody the deceased’s testamentary intentions; and third, the evidence must satisfy the court that the deceased, either at the time of the document being brought into being or at a later time,160 by some act or words revealed an intention the document should, without more on his or her part, operate as his or her will.161 These requirements are elaborated below. It should be noted, though, that as the second and third requirements involve ascertaining individual intention, each case rests heavily on its own facts, and previous decisions in this context serve as general guidance in place of binding precedent.162

First requirement: need for a ‘document’ 4.36 As a threshold requirement, the dispensing power is premised on the existence of a document. A merely oral statement, therefore, is ineffective for this purpose. However, the document need not be in the traditional or classic form. The Northern Territory and Western Australian wills legislation defines a ‘document’, for this purpose, as any record of information, including:163 • anything on which there is writing; • anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; • anything from which sounds, images or writings are capable of being

reproduced with or without the aid of anything else; and • a map, plan, drawing or photograph. Similar definitions of ‘document’ apply in the remaining jurisdictions, stemming from the wills legislation defining the term by reference to the Acts interpretation legislation164 or by the latter applying by default.165 The remedial nature of the legislation in any event justifies a broad construction of the term ‘document’.166 It is unsurprising, therefore, that suicide notes167 and writing on a wall168 may come within the concept. Lost wills, the contents of which the court can [page 119] reconstruct from memory and notes,169 are also documents for this purpose.170 The breadth of the term ‘document’ dictates that it can encompass an audio recording171 or video recording,172 as well as a photograph.173 The advent of computers has seen probate granted to wills that remain on a computer — which come within the concept of a ‘document’ as defined — even absent signature or witnessing, if the court is satisfied of the second and third elements of the dispensing power.174 And burgeoning electronic footprints make it conceivable that social media posts could likewise speak of a deceased’s testamentary intention. Nowadays, accordingly, a search for testamentary ‘documents’ is hardly confined to hard copies in writing that meet the requisite formalities. The wills legislation, except in South Australia and Victoria, contemplates that only part of a document may be informal, in which case that part may be admitted to probate if it satisfies the other requirements.175

Second and third requirements: focus on ‘testator’s’ intention 4.37 The second and third requirements each involve a question of fact. The second — that the document must purport to embody the deceased’s testamentary intentions — has been judicially described as involving ‘a consideration of whether the documents contain a statement of her intentions as to what was to happen to the property described in the documents upon her

death’.176 Though it ostensibly overlaps with the third requirement — whether the testator [page 120] without more, intended the document to operate immediately as his or her will — each targets a discrete intention. As explained by Kirby P:177 [B]y the requirement that the document which … embodies the testamentary intentions of a deceased person, should be described as constituting ‘his or her will’, the legislature plainly drew a distinction between those documents of testamentary intentions which constituted the deceased’s will and those which did not. I regard the distinction thus made as one between a generalised homily as to testamentary intentions … and a document which, although falling short on formalities, sufficiently evidences the fact that by it the deceased intended to govern the disposition of his or her property after death.

The focus on intention, to this end, dictates that the question is one of substance more so than form.178 Also, proof of the third requirement is not premised on showing that the testator attempted to comply with the formalities; any need to do so lacks foundation in the statutory language. The greater the departure from the formal requirements, though, the more difficult it is for the court to reach the required standard of satisfaction for both the second and third requirements.179 The latter requirement has been the subject of the bulk of the case law, and therefore deserves more detailed discrete treatment below.

General considerations applicable to the third requirement Determining the requisite intention 4.38 The third requirement — involving an inquiry into whether the testator without more, intended the document to operate immediately as his or her will — targets the question whether there is ‘immediacy of intention’180 on the part of the alleged testator. The phrase ‘without more’ here has been said to emphasise ‘the distinction between a document which merely records testamentary intentions and a document which records such intentions in a

complete and concluded way such that it is intended by the author to operate as his or her last Will’.181 The dispensing power, to this end, is activated in circumstances, inter alia, where the court is convinced that the document propounded expresses the concluded testamentary intentions of the deceased rather than ‘some provisional, preliminary or tentative proposal’ yet to receive the deceased’s full assent.182 If the document was prepared for consideration, further [page 121] thought, deliberation or possible revision, there is no scope for the dispensing power, just as there would not be scope, had it met the formalities, for it to have constituted the deceased’s valid will.183 As explained by a South Australian judge:184 [T]he law books are full of cases where intending testators have shown irresolution and changed their minds at the last minute or altered their wills by interlineation in the course of execution. It does not require much professional or bench experience to realise that intending testators do change their minds between the time of ‘finally’ giving instructions and the time of ultimate execution of their wills.

Hence documents containing written instructions for a will, or a draft of a will, may justify a finding that the testator’s actual intention was that a formal document be prepared and executed in future — suggesting an intention that the document be no more than a ‘trial run’ — and thus no present intention that it should operate as his or her will.185 The same may be said where the document in question records no more than the deceased’s ideas concerning his or her testamentary intention,186 or is otherwise expressed in precatory terms, say, an expression of ‘my wishes’ or ‘my request’.187 4.39 As a deceased’s signature on his or her will serves as an important indicator of both authenticity and solemnity of the document in question, it is unsurprising that the absence of signature presents as one of the more challenging applications of the dispensing power. Aside from questions of authenticity, that the deceased has omitted to sign the relevant document may raise questions over whether he or she wished the document to express a concluded view surrounding his or her testamentary intentions. Where, for

instance, the deceased had plentiful time and opportunity to sign the document but omits to do so, a court may well reckon that the deceased had yet to decide whether or not the document reflected his or her intentions.188 In this instance, the fact that the deceased ‘kept’, and did not destroy, the document is unlikely to be probative of the contrary.189 The foregoing does not mean that an unsigned document could never constitute an informal will, assuming ‘cogent evidence that the document embodied the deceased’s testamentary intentions and that the draft was clearly adopted and authenticated by the deceased is [page 122] required’.190 Were the law otherwise, in circumstances where the deceased read the will prepared by solicitors on his or her prior instructions, announced to those present that it reflected his or her testamentary intentions and was about to sign it, but then immediately collapsed and died from a heart attack, the document could not be admitted to probate. This, remarked Habersberger J in Fast v Rockman,191 ‘cannot be correct’. That case, as do various others,192 highlight that a lack of a signature does not preclude status as an informal will if, usually following instructions given to a solicitor, the testator expressed satisfaction with the relevant document but lacked the opportunity, usually by reason of illness and subsequent death, to formally execute it. This is not to deny scope for upholding an unsigned will even where there was opportunity for signature, if there is evidence sufficient to satisfy the court that the document was nonetheless intended to operate as the deceased’s concluded expression of testamentary intention. The evidence may derive from solicitors who drafted the document, or from some third party present at the relevant time(s). For example, in Will and Estate of Bateman193 the deceased did not sign a draft will supplied on his instructions by the State Trustees in July 2004 notwithstanding opportunities to do so preceding his death in February 2005. What influenced J Forrest J to admit the unexecuted will to probate was not only that it followed the instructions given to the State Trustees, but that a nurse, who had attended the deceased in early 2005 and was independent of

all the parties, was ‘unequivocal in her two affidavits that [the deceased] intended that the draft will give effect to his testamentary intention’.194 4.40 Where the deceased signed the relevant document, but it lacks (proper) attestation, the courts appear more welcoming to exercising the dispensing power. The reason is evident: assuming that the authenticity of the signature, and of the mental capacity and understanding of the deceased, are not in doubt, signature by the deceased may prove strong evidence of an intention to give legal effect to the document. This is more compelling when the document has been drafted with a degree of formality, although the latter is not essential if its terms, and the circumstances surrounding it, nonetheless speak of a concluded testamentary intention. It is not uncommon for the issue to materialise in the context of unattested amendments to existing wills. In Boettcher v Driscoll195 David J upheld a signed but unattested document because, inter alia, it was drafted with formality (in turn suggesting something ‘above that of a mere note or scribble’), and the deceased’s intention in so doing was clear (‘I wish to amend my will to read …’), and ‘could only have been clearer if the deceased had actually used the term “codicil”’. In Campton v Hedges,196 where purported amendments to an existing will were initialled by the testator but not attested, the testator signing the bottom of each page, Hallen J remarked that ‘[e]ach was a serious act engaged in by the deceased’, speaking of his intention to ‘formally authenticate what he had done in such a way as to give it operative force’. Multiple other similar decisions illustrate the same point.197 4.41 The foregoing is not to say that all signed but unattested documents are candidates for the dispensing jurisdiction. There may be occasions where the deceased’s signature is not, by itself, sufficient evidence of an intention to make a concluded testamentary disposition. The evidence may, for instance, indicate that the document was no more than a draft, or otherwise only provisional or preliminary. In Lindsay v McGrath198 a majority of the Queensland Court of [page 123]

Appeal held that the deceased’s handwritten alterations and deletions to a signed document indicated that the deceased was giving its contents ‘further consideration after its initial preparation’, and that the document was found in an envelope marked ‘this is the Will of’ did not upset this outcome in the absence of evidence the envelope was sealed. Or it may indicate that, in the circumstances, the testator was not intending, by way of signature, to give the document legal effect. In Burge v Burge199 Macfarlan JA opined that circumstances where, as on the facts, a deceased executes an ostensibly testamentary document, albeit without witnesses, will usually enliven the dispensing power. The evidence, however, called for a different conclusion because it showed the deceased as a meticulous person who would initial or sign and date documents even though they were apparently not intended to have legal effect.200 That the subject document was found separate from his other testamentary documents, and less accessible, also weighed against the application of the dispensing power.201 4.42 Where an informal document is neither signed nor attested, there are obviously higher hurdles to its admission to probate. In Re Estate of Margaret (deceased),202 for instance, the deceased made handwritten alterations to an unexecuted copy of her will, which were neither signed not attested. White J refused to treat these as effective amendments under the dispensing power, noting that ‘[t]he physical form of the document is an important consideration in drawing inferences about the deceased’s intention’.203 Beyond the alterations having been made to an unsigned will, without being signed or initialled, what influenced this conclusion was that a clause was roughly scribbled out, another clause only mentioned the first name of one of the deceased’s children, and the purported alterations (if effective) served to bequeath only part of the deceased’s estate. ‘The inference from the document itself’, his Honour ruled, ‘is that the handwriting indicates changes the deceased was contemplating she might make to her will, but she did not intend the handwriting to be dispositive’.204 4.43 Certainly, where the alleged informal will was not written out by the deceased, nor shown or read to him or her, and lacked signature and attestation, the challenges to activate the dispensing power may well prove insurmountable. The point is illustrated by Re Application of Brown.205 There

the deceased entered hospital with a serious illness and, shortly before his death, was urged by a friend to make a will. Though he resisted this urging, the deceased ultimately instructed the friend to supply a law stationer’s will form. After some delay, the deceased instructed the friend as to the disposition of his property, which instructions were written by the friend on the document, with the intention that they later be transferred to the will form. The deceased died shortly thereafter, before these instructions were so transferred. The ‘will’ was therefore not written out by the deceased, not shown or read over to him, and not signed or witnessed. An attempt to admit the document to probate under the dispensing power was dismissed, as Powell J was, unsurprisingly it may be said, not satisfied that the deceased intended the document to constitute his will. His Honour contrasted the following two scenarios in reaching this conclusion:206 [I]n cases where the subject document is either wholly written out, or, being on a will form, has been filled in, in the handwriting of the relevant deceased, and in cases where the subject document bears the signature of, or some mark made by, the relevant deceased indicating his intention to adopt it as his own, I would have little difficulty in finding myself satisfied that it was intended by the relevant deceased that the subject document should constitute his will. Where, however,

[page 124] the subject document was not seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased, was, in truth, no more than ‘instructions’, or a note of ‘instructions’, for a will …207

The document was therefore regarded as no more than notes by a friend as to his understanding of what the deceased wished to be included in a formal will, to be later executed, but which had not been as a result of the deceased’s death.

Factors in ascertaining the requisite intention 4.44 Courts take into account some specific circumstances that may point to the finality or immediacy of the deceased’s intention or otherwise. The main ones include the following, though it should be understood that, as the inquiry targets a person’s intention, these circumstances form part of an overall

quotient rather than ultimate determinants. First, the court inquires into the extent of the deceased’s awareness of formality requirements. If the evidence reveals that awareness, which may include evidence that the deceased had a prior lawyer-drawn will, in appropriate circumstances this may influence whether the court is prepared to accept that the deceased intended an informal document to be his or her will.208 In Estate of Dunn209 what led Campbell J to refuse an application to admit to probate an informal document headed ‘Alterations to my Will’ was that, inter alia, the deceased’s previous three wills had been drawn up by solicitors and the deceased was aware of the formalities necessary to make a valid will. Conversely, if the deceased is unfamiliar with either the nature of a will or the way the law operates, a court may more readily infer that he or she intended the informal document to have legal effect according to its terms on death. ‘It would be a mistake’, it has been judicially opined, to regard the third requirement as premised on ‘evidence that the deceased consciously set his or her mind to the legal formalities for will making’.210 4.45 Second, evidence going to the nature and personality of the deceased, and how he or she approached will-making in general, including whether he or she has been meticulous in will-making and storage, can speak to intention. In Re Sanders,211 for instance, one matter that influenced McMillan J against admitting an informal document to probate was that the document bore no marks of being prepared by a solicitor, which was significant when ‘compared with the deceased’s long history of will making, where she not only always attended on solicitors for that purpose but also had a long standing practice of storing her important documents, such as her wills and powers of attorney, with her solicitors’. The case law also reveals more than one instance of a deceased who, having given instructions to solicitors for a will, would be expected, as a careful person, to attend the solicitors to review its contents before signing it. In these instances, it has been found that a failure to so attend (and sign) impedes the dispensing jurisdiction.212 The foregoing is not to deny that circumstances may arise where, notwithstanding an ordinarily fastidious personality, there are reasons to conclude that external stressors have contributed to a less exacting attitude to will-making.213

[page 125] 4.46 Third, the deceased’s intention may, in all circumstances of the case, be inferred from the manner in which he or she treated the (informal) document in question. So in In the Estate of Masters (deceased)214 the New South Wales Court of Appeal found the deceased’s handing over, shortly before his death, of an informal document along with the accompanying words, ‘This is what I want done, you’re my best friend and this is what is to happen to my estate when I die’, indicated that the testator attached importance to the document and regarded it as capable of effecting what happened to his property on death. The location of the relevant document may assume relevance in this regard. Sackville AJA in Re Quartermain Estate215 saw as the most significant indication of the deceased’s intention that the notebook containing the informal codicil was ‘left by the deceased on the dining table, where it would doubtless be seen immediately, rather than left amongst other papers in some less visible or accessible place’. In Ackerley v Felton,216 where the deceased left a suicide note in his pocket, Young AJ in exercising the dispensing power was influenced not only by the fact that the note was entitled ‘my will’ and that its contents revealed that it was part of a package relevant to the aftermath of his death, but that ‘the page was torn out of the notebook and was placed on his person’, and left on his person rather than being destroyed. Conversely, in Williams v Public Trustee of New South Wales (No 2)217 the evidence revealed that the deceased, contrary to his established practice, did not involve the Public Trustee in either the preparation of the ‘will’ or its delivery after execution to the Public Trustee for safekeeping. That the deceased placed the document in a tin box containing items of no value or other significance — ‘not the sort of place one would keep an important document which would need to be located quickly after one’s death’218 — led Palmer J to refuse it probate. 4.47 Fourth, a conscious decision by the deceased, being duly aware of the formal requirements, not to follow them in preparing the relevant document makes it unlikely that the court will admit the document to probate. For example, in Estate of McNamara219 the deceased completed a stationer’s will form but did not sign or have it witnessed. The reason for this omission, it

appeared, was the deceased’s reluctance to have a nurse, who was present at the time, witness his signature. The testator died six weeks later, the document remaining in his bedside table drawer. In these circumstances, Powell J declined to admit the document to probate. 4.48 Fifth, as foreshadowed earlier, that a deceased had plentiful opportunity to sign a formal will but in the circumstances opted against doing so suggests a lack of a concluded testamentary intention.220 This is an even more compelling outcome if the deceased has failed to complete and sign a will form, especially against a backdrop of inconsistent statements as to his or her testamentary intentions.221 In this vein, that an informal document is incomplete, particularly [page 126] as to its disposition of the deceased’s estate (though perhaps less so vis-à-vis machinery provisions), may also speak against a finalised testamentary expression.222

Timing of intention 4.49 Whilst a testator’s intention is ordinarily assessed at the time of making the (alleged) will,223 both acts and statements made after the making or publication of the document are admissible for this purpose. So, for instance, even if the deceased lacked a testamentary intention when drafting the relevant document, if the evidence reveals, including via the deceased’s subsequent dealing(s) with and statements as to the status of the document, an intention that it represent his or her testamentary wishes, it is that latter intention to which the court gives effect through the dispensing power.224 However, if it is established that, at the time of its creation, the deceased intended an informal document to represent his or her testamentary wishes, subsequent events or statements that may suggest a change of mind do not deprive the document of its status unless they satisfy the statutory test for revocation or alterations of wills.225 4.50

Some problems may be caused in this respect by so-called ‘stopgap

wills’.226 The law acknowledges that a person may make an informal testamentary document intended to take effect as a ‘stopgap’ until a formal will is made. The circumstances where a person may do so are various, but often involve where by reason of time or convenience a formal will is impracticable and yet the person wishes to express his or her testamentary wishes before, say, undergoing a medical procedure or taking a journey. From one angle, it could be argued that, if the resulting document is indeed a ‘stopgap will’, once the pressures that prompted its creation have passed, a failure to formalise the document may deny an intention that it have continuing effect. This is the more compelling when that failure subsists for some time.227 The position is otherwise where the court is unconvinced that the purported will, or amendment thereof, is a stopgap will. In Leslie v McDowell228 the testator made an informal document, altering her previous will, the day preceding a flight over Antarctica. Young J rejected an argument that the document was intended only to be a stopgap will during her flight, as she had lived for four years after the flight, and the document was altered after the flight and left in an envelope marked as her last will in a prominent position amongst other documents dealing with proposed funeral arrangements. It was accordingly admitted to probate. [page 127] It has been judicially observed, to this end, that although ‘[o]verseas travel and the possibility of encountering the unexpected can be an occasion to prompt an individual to make a will … that does not mean that the will so made must only operate whilst the person is overseas’.229

Admissibility of evidence 4.51 The wills legislation in all jurisdictions except South Australia makes specific provisions with respect to the admissibility of extrinsic evidence on the issue of intention. It allows the court to have regard to evidence relating to the manner in which the document was executed, and to evidence of the deceased’s testamentary intentions, including evidence of statements he or she

has made.230 The statutory language, by its very breadth, places no limitation on the court as to matters to which it may have regard in deciding the intention issue. So hearsay statements, allegedly from the deceased, or others contrary to the general law of evidence may be admitted and considered. The only exception appears to be evidence that is illegally obtained.231

Standard of proof 4.52 The ‘beyond reasonable doubt’ standard of proof — which courts equated to the criminal standard232 — adopted in the original formulation of the South Australian provision then translated to the Northern Territory, Tasmanian and Western Australian provisions. It was driven, it seems, by a nervousness concerning such an ‘experimental’ provision,233 and to guard against a perceived influx of litigation as well as to maintain standards of care in the execution of wills.234 Other jurisdictions commenced with the civil standard, which has since translated elsewhere235 excepting Tasmania.236 The change was driven by two considerations. The first was that the reforming nature of legislation could be undermined by a standard of proof more stringent than the civil standard.237 The second was evidence that, even in uncontested cases, the delegation of the matter for determination by the Registrar of the Supreme Court was not possible because of the higher standard.238 Although there is no third standard of proof, somewhere between the civil and criminal standard, the nature of probate and the consequence of any finding that may be made, coupled with the deceased being unable to give evidence as to his or her actual intentions, means that the court needs to evaluate the evidence with great care. For this reason, there are grounds to conclude that the Briginshaw test239 — to the effect that the greater the seriousness, gravity or magnitude of the issue to be proved, the stricter the proof required — is justified here.240 [page 128] In any event, in jurisdictions in which it applies, the uniform evidence law

requires a court, in applying the balance of probabilities standard, to take into account ‘the nature of the cause of action or defence’, ‘the nature of the subject-matter of the proceeding’ and ‘the gravity of the matters alleged’.241

Disqualification of Witnesses Historical disqualification of witnesses taking under the will 4.53 The English wills legislation, in its original form, decreed that a testamentary bequest to a person who also acts as a witness to the will, though it does not undermine the validity of the will,242 causes that bequest to be void.243 This consequence extended to a gift to the spouse of the attesting witness. The same translated into its Australian counterparts but has since been either ousted or mollified.244 This so-called ‘interested witness rule’ aimed to ensure that those who witnessed a will were independent of an interest thereunder, and thereby less prone to effecting fraud or undue influence vis-à-vis the testator.245 4.54 Whilst generally construed narrowly, the rule was not entirely unyielding. First, courts recognised that the time for inquiry into its application was the actual time of attestation.246 So in Thorpe v Bestwick,247 where the testator made a will leaving a gift to an unmarried woman, the latter’s subsequent marriage to one of the attesting witnesses did not void the gift in her favour. To disqualify a spouse, therefore, it had to be shown that the spouse was married to the witness at the time of witnessing. Needham J applied similar reasoning in Burns Philp Trustee Co Ltd v Elliott,248 where the testatrix bequeathed her estate to her brother, with a proviso that, should he predecease her, the estate should devolve in the same manner as if he had survived her and died immediately after her death. The brother did predecease the testatrix, leaving by will gifts to the persons who had attested the will. The attesting witnesses were not debarred from taking the benefits. Second, the rule did not affect a gift to a witness (or spouse) as a trustee, as it was construed to require a ‘beneficial’ disposition. A trustee, in that capacity, takes no beneficial interest under the will. In Re Ray’s Will Trusts249 a gift to an

attesting witness in her capacity as abbess of a convent was upheld, it being not an outright gift but one held in trust for the purposes of the convent. Also, because a beneficiary of a secret trust takes as a result of the trust rather than the will,250 the interested beneficiary rule does not preclude that person from witnessing the will.251 Third, the only gift avoided by the rule was one by the same testamentary instrument that was witnessed. If a beneficiary witnessed the will, to which the testator later made a codicil [page 129] that the beneficiary did not witness, as the will is ‘republished’ by the codicil252 the gift to the beneficiary was valid. The beneficiary took under the codicil.253 4.55 In other ways, though, the application of the interested beneficiary rule remained strict. So, for instance, the rule originally applied to solicitors’ charging clauses (other than in Queensland),254 which entitled solicitorexecutors to make a proper professional charge for work performed in an executorial capacity. As the clauses conferred a benefit upon the solicitor, they were void if the solicitor also witnessed the will255 (but not if the solicitor’s employee or partner did so).256 4.56 Also, case authority suggests that even if two independent witnesses have attested a will, if a beneficiary also witnesses the will, the bequest to the beneficiary will be caught by the rule. There is a presumption, in this regard, that a person (other than the testator) signing a will does so as a witness.257 In the Estate of Bravda (deceased)258 illustrates its application, where two beneficiaries of their father’s will, in addition to two independent witnesses, attested it ‘to make it stronger’. The English Court of Appeal found that this did not rebut the presumption that the daughters’ signatures were as witnesses, and so the gifts to them were void. While condemning this result as ‘monstrously unfair’,259 the court found it difficult to conclude otherwise, as the document ‘state[d] on its face that they signed as witnesses’.260 The presumption is rebuttable by evidence that the beneficiary’s signature was for some purpose other than witnessing the will, say, for self-identification

or the general approval of its terms. To the extent that the decision in Bravda suggests that the presumption is always difficult to oust, it should be viewed in the context of its own facts, as there are multiple cases where courts have been convinced of its rebuttal and the name of the witness has been omitted from the document admitted to probate.261 The point is now moot, in any case, as the Bravda rule has no continuing application in Australia.262

Modern ouster or qualification of disqualification 4.57 Due to the potential for unfair outcomes, and that it does not distinguish between ‘the innocent and the guilty witness’,263 the interested witness rule has been abolished by explicit statutory provision in the Australian Capital Territory, South Australia and Victoria.264 The position is the same in Western Australia, even absent explicit provision, as the wills statute makes no reference to the interested witness rule. In these jurisdictions the suspicious [page 130] circumstances doctrine,265 and the need for knowledge and approval,266 will likely assume greater importance if there is a witness-beneficiary.267 4.58 Elsewhere, the rule has been mollified, and in any case the court may waive its application. Although the primary rule remains — rendering void a beneficial disposition to an attesting witness or a person claiming under that witness268 — the disqualification vis-à-vis spouses of the interested witness has been omitted,269 as has (at least in New South Wales and Queensland) the disqualifying effect of an entitlement to reasonable remuneration ‘to an executor, administrator, legal practitioner or other person acting in relation to the administration of the testator’s estate’.270 Also, to abrogate the effect of In the Estate of Bravda (deceased), it states that a beneficial disposition is not void if at least two of the people who attested the execution of the will are not interested, but rather, independent witnesses.271 4.59 The New South Wales, Northern Territory, Queensland and Tasmanian legislation, moreover, provides three avenues whereby the rule’s

operation can be nullified. First, this can be effected via the judicial dispensing power relating to formality requirements.272 Second, the interested witness rule does not apply if all the persons who would benefit directly from avoiding the disposition give written, informed and legally valid consent to the distribution under the will.273 If so, the gift takes effect, according to its terms, despite its beneficiary being a witness. Third, lacking agreement, the Supreme Court may waive the rule if satisfied that the testator knew and approved of the disposition, and that it was given or made freely and voluntarily.274 By using the terms ‘knowledge’ and ‘approval’, and the phrase ‘freely and voluntarily’, the legislature evidently wished to direct the court’s attention to existing principles underscoring the mental element necessary to effectuate a valid will.275 What must be placed before the court, to this end, is ‘the full story of giving instructions for the Will, and execution of the Will’.276 In the seminal case, Miller v Miller,277 the plaintiff-beneficiary (the testator’s de facto wife) witnessed the testator’s will, a standard form purchased from a newsagency, which the testator completed on a car bonnet prior to departing to walk the Kokoda Track. Were the gift to the [page 131] plaintiff void, the testator’s children (who did not consent to the plaintiff taking) would take on intestacy. Young J phrased the judicial approach to the plaintiff’s application as follows:278 One starts with suspicion. That suspicion may be deep or surface, depending on the circumstances. The onus is on the claimant to establish by proper evidence that the testator did indeed know that he or she was making a gift to the witness and that the gift was a free and voluntary one.

On the facts, the degree of suspicion was low. There was no evidence to show disagreement between the plaintiff and the testator as to the contents of the will, or disharmony or conflict between them. The evidence of the witnesses present at the execution of the will, including that of the second ‘independent’ witness, revealed nothing suspicious about the relevant circumstances. Moreover, the will was, his Honour observed, ‘just the sort of will that one would expect a man with a permanent de facto wife with two

young children … might make’.279 Together this inclined Young J to waive the interested beneficiary rule. 4.60 Queensland is unique in disqualifying an interpreter, engaged to interpret or translate from or to a language understood by the testator, from receiving a disposition under the testator’s will.280 However, the relevant provision envisages parallel exceptions and qualifications to those applying to interested witnesses.281

Incorporation by Reference Nature of the doctrine 4.61 A testator may incorporate into a properly executed will documents that have not been properly executed. If the requisite conditions for incorporation are satisfied vis-à-vis a document (or part thereof),282 the document (or part) becomes part of the will and can be admitted to probate. And a will that does not satisfy the formal requirements may be incorporated in a later testamentary instrument, such as a codicil, that does satisfy the formalities.283 This so-called ‘incorporation by reference’ may also be useful where detailed provisions are too bulky to be conveniently included. 4.62 The law recognises three conditions for incorporation by reference: first, the document to be incorporated must be in existence at the date of the will; second, the document must be referred to in the will as being in existence at the date of the will; and third, the will must make such reference to the document so that it can be clearly identified.284 Each condition is discussed below, and requires strict compliance. At the outset it should be noted that the doctrine is distinct from the law of secret trusts, which operate outside the will, and so are subject to different requirements, even though the effect may not be dissimilar.285 [page 132] 4.63

Importantly, the requirements of incorporation must be read subject to

the courts’ dispensing power.286 For instance, the fact that a document, to which the will refers, is not in existence at the date of the will does not preclude the court, if satisfied that it is intended to form part of the deceased’s will, incorporating it into the will.287

Existence of document at date of execution of will 4.64 It is self-evident that a document cannot be incorporated into a will if it is not in existence at the date of the will. Hence, a future document fails the test of incorporation.288 A testator cannot, it is said, ‘reserve to himself a power of making future unwitnessed dispositions by merely naming a trustee and leaving the purposes of the trust to be supplied afterwards’.289 The onus of proof is on those seeking to incorporate, and is not discharged simply by relying on any presumption of due execution; alternative proof is required.290 For example, in In the Estate of Phillips291 a letter that accompanied a will was held to be incorporated as part of the will, on the basis that the will itself referred to a letter ‘under my hand dated this 28th day of April, 1914, and deposited with my will’ and the fact that the document, namely a letter of that date, had been found with the will. If, conversely, a will refers to a document that cannot be found at the testator’s death, the presumption of revocation applies.292 But if the evidence reveals that the document existed at the date of the will, but was later lost, it may still be incorporated if there is sufficient evidence of its content.293 4.65 The doctrine of republication may qualify the foregoing.294 If no document is in existence at the time of execution but one exists at the time of republication by later codicil, to which the will refers, the document may be validly incorporated if the other conditions are satisfied. This is because the document is in existence at the date of the will (being the date of republication) and reference is made to it in the will.295

Document referred to as already in existence 4.66 The second condition requires that the will itself refer to the document as already being in existence when the will is executed. This must be apparent

from the face of the will, not dependent on extrinsic evidence.296 Thus in University College of North Wales v Taylor297 the testator left a gift conditional on compliance with ‘any memorandum found with my papers’. As that expression could have referred to a future document, no incorporation was possible. Similar phrases, as ‘to give to such of my friends as I may designate in a book or memorandum that will be found with this will’,298 ‘as shall be stated by me in a sealed letter in my own [page 133] handwriting addressed to my trustees’,299 and ‘to be named in a paper to be addressed to my nieces’,300 have failed the incorporation requirement for being references to future documents. Furthermore, even if the will refers to an existing document, if it reserves the right to substitute or modify that document, incorporation is not possible, even of the existing document.301

Document identified in will 4.67 This condition requires that the document be sufficiently described in the will to enable it to be identified. If the description is so vague as to be incapable of being applied to any particular document, it will not be effective.302 In Re Williams’ Will,303 for example, the testator executed a valid will, but left a number of clauses, intended to contain dispositions, entirely blank. There was a document in existence that contained instructions as to how to complete the blank clauses, but the will made no reference to that document. An attempt to incorporate it failed. The Full Court of the Queensland Supreme Court accepted that parol evidence could be admitted where testamentary instruments are on their face ‘apparently connected’ with the other,304 but as no such connection appeared on the facts, it did not assist.

Secret Trusts

Nature of secret trusts 4.68 The topic of secret trusts merits treatment in a book on succession because, in both practice and in the case law, the vast majority of these forms of trust surface in the testamentary environment.305 A secret trust arises where the owner of property leaves property to X upon the understanding that X is to hold the property on trust. The owner is the settlor of the trust (in the usual testamentary context, therefore the testator), whereas X is the trustee. What makes secret trusts an unusual legal vehicle is that there remains something secret in the terms of the disposition as to the object(s) for which the trustee is to hold the property. Where there is an indication on its face that X is not to take beneficially but to hold as trustee — the secrecy ordinarily going to the persons (or purposes) for which the property is to be held — the trust is termed a ‘half-secret’ trust.306 But it is possible for a secret trust to arise in circumstances where there is nothing in the terms of the disposition indicating trusteeship. In this event, assuming that extrinsic evidence can support the existence of a trust, what is created is a trust that is ‘fully secret’.307 4.69 In circumstances where a secret trust is intended to operate inter vivos — that is, while the settlor remains alive — it has nothing to do with the law of succession. But it must meet trusts statutory writing requirements,308 to the extent that these apply to the form of disposition made. On occasions where the operation of a secret trust is to be triggered by the death of the [page 134] settlor, those writing requirements have no application. After all, they only apply to inter vivos dispositions. At the same time, though, nor do formality requirements prescribed by the wills legislation309 apply, as secret trusts operate outside the will.310 4.70 What a secret trust can allow is for a testator to make provision for an object he or she wishes to remain secret. A frequently cited example is a mistress or ex-nuptial child.311 Or it may be a cause with which he or she is secretly concerned. Giving effect to the equitable maxim ‘equity will not allow statute to be used as an instrument of fraud’, evidence is admissible to prove a

(secret) trust over property in favour of a person to whom it is not bequeathed by the will, but instead left to a person alleged to be its trustee.312 Where its requirements are met,313 equity enforces the secret trust. It does so by enforcing an equitable obligation on the trustee to hold or deal with the property in accordance with the testator’s intention.314 The onus of establishing a secret trust lies on the person alleging its existence, on the civil standard of the balance of probabilities.315

Elements 4.71 In addition to the requirements of express trusts generally — specifically the ‘three certainties’: certainty of intention, certainty of subject matter and certainty of object316 — a secret trust is premised on proof of three elements: the testator’s intention that the property be applied as he or she directs; communication of this intention to the intended trustee(s); and acquiescence on behalf of the trustee(s).317 The effectiveness of any alteration in the testator’s directions vis-à-vis the property in question is premised upon the communication and acquiescence requirements being met.318 The element of intention is essentially a specific application of the certainty of intention requirement. The law will not give effect to a trust-like obligation unless it is satisfied that the person imposing the obligation intended it to be one of trusteeship. A mere moral obligation in this regard, as in the context of express trusts generally,319 does not suffice. So far as communication is concerned, there is no requirement that the testator communicate the details of the intended trust at the time of executing the will. But it is necessary at that time that the communication discloses to the intended trustee that he or she is to act as trustee. It would [page 135] otherwise undermine the third requirement; a person cannot validly acquiesce in being a trustee if he or she lacks any knowledge that this is expected. After all, acquiescence, though passive, presumes knowledge on the part of the

person acquiescing.320 Assuming the required communication, acquiescence does not require writing or positive spoken words; its essence can be met by silence.321 The law assumes that a person who does not wish to act as trustee of a secret trust will actively refuse the invitation, although acquiescence in whatever form does not preclude the appointee from disclaiming trusteeship at the time the trust is to commence.322 If a testator gives property on secret trust to two or more trustees but not all acquiesce, there is authority to the effect that whether the non-acquiescing trustee(s) are bound depends upon whether the property is to vest in the trustees as joint tenants or as tenants-in-common.323 Where the trustees are to take as joint tenants, all are bound upon one of their number acquiescing before the will is made; acquiescence after the will is made binds only the acquiescing trustee. But where the trustees take as tenants-in-common, it seems that only the acquiescing trustee(s) are bound.

‘Fully secret’ trusts 4.72 Those who allege that a person who receives property, ostensibly beneficially, under a will, instead holds it on trust for them carry a heavy onus. The law assumes that a person to whom property is bequeathed is the person intended by the testator to take that property. In the absence of any indication in the terms of the will that he or she is not intended to take beneficially, extrinsic evidence of intention to create a trust must be compelling before a court will give effect to it. That evidence may be circumstantial and/or may consist of admissions, whether express or by conduct, by the alleged trustee.324 In the leading Australian case, Voges v Monaghan,325 the testator bequeathed his estate to the appellant, a married woman who had assumed the management of his affairs. The appellant was alleged to have taken the estate subject to the obligation to pay annuities to the respondent and another. The basis of this allegation was a letter, no longer in existence, containing the testator’s wishes read by the appellant to the respondent upon the testator’s death. Fullagar and Kitto JJ noted that, although it was possible that the testator may have intended the appellant to take beneficially, subject only to a moral obligation, the evidence indicated otherwise. The court was particularly

influenced by the trial judge’s opinion on the credibility of witnesses and impressions of the testator’s character. This revealed the testator as ‘a man desiring that the practice he was following, of relying upon a trusted agent to carry out his instructions, should continue after his death’.326 As the appellant was resiling from her undertaking that had partly induced the testator to leave his estate in her hands, the court enforced a trust against the appellant in respect of the annuities. [page 136] 4.73 Communication and acceptance of a fully secret trust may be made before or after the will but must be made during the testator’s lifetime. A lack of communication before this date undermines what goes to the core of the acquiescence requirement, namely knowledge of the intended trusteeship. In this event, no trust arises and the intended trust property is held for the residuary estate.327 The position differs where the testator informs the donee that he or she takes as trustee, even if the terms of the trust are not communicated at the time, or at any time before the testator’s death. For example, in Re Boyes328 the testator instructed a solicitor to draft a will leaving all his property to the solicitor. The property was to be held and disposed of according to written instructions to be given later. After the testator’s death, an unattested paper was found, which nominated X as the beneficiary. It was held that, having admitted that he was a trustee for a secret trust, the solicitor could not take the property beneficially, but held the property as trustee for X.

‘Half-secret’ trusts 4.74 In the case of a ‘half-secret’ trust the testator supplies an indication in the will that a legatee is not to hold beneficially but as trustee. For example, the will may read ‘to X for the purpose I have communicated’ or ‘to X for purposes with which he is acquainted’.329 Here the secrecy concerns the name and description of the object. 4.75

So far as the communication element is concerned, courts traditionally

admitted evidence of communications made before or at the time the will was executed to prove the terms of the trust, but not evidence of future communications of the objects of a half-secret trust.330 The main reason proffered for the latter was that ‘[a] testator cannot reserve to himself a power of making future unwitnessed dispositions by merely naming a trustee and leaving the purposes of the trust to be supplied afterwards’.331 For example, in Re Jeffery332 the testator directed that his residuary estate go to four persons or their survivor ‘to be applied … in accordance with my wishes’. Three of the four predeceased the testator. Evidence of any communication of those wishes was totally lacking, except for a letter found amongst the papers of one of those persons who predeceased the testator. As this communication occurred subsequent to the making of the will, no secret trust was created. The dichotomy in approach regarding the (in)admissibility of subsequent evidence between fully secret and half-secret trusts has for years been criticised for being unjustified in principle.333 Now, following the decision of Young J in Ledgerwood v Perpetual Trustee Co Ltd,334 it arguably no longer represents Australian law. His Honour ruled that a valid half-secret trust could exist even if its details were communicated subsequent to the execution of the will. Whether under a fully secret or a half-secret trust, the basic obligation on the intended trustee remains the same, [page 137] and so in each case it is against his or her conscience to resile from the undertaking to carry out the testator’s wishes.335

Disclaimer by, or death of, secret trustee 4.76 If a trustee of a half-secret trust disclaims, or predeceases the testator, the trust remains good on the principle that equity will not allow a trust to fail for lack of a trustee.336 On this principle, courts of equity assumed an inherent jurisdiction to appoint a replacement trustee to ensure the trust’s continuing proper administration.337 There is, nonetheless, authority that a fully secret

trust fails in the same circumstances,338 the logic being that the trust only affects the property by reason of the personal obligation binding the individual legatee. Yet it is unclear why such a difference in outcome should rest on whether the trust is fully secret or half-secret. Certainly where the trustee seeks to disclaim upon the death of the testator, at that moment the secret trust is constituted339 and so the court can, as it does where trustees disclaim generally, appoint another trustee. The same should be the case where the disclaimer occurs before the secret trust is intended to take effect (that is, before it is constituted).340 This is consistent with the approach generally adopted by the law where a trustee predeceases the testator; in this event, the court in seeking to give effect to the testator’s intention will appoint a new trustee.341

Form of trust — express or constructive? 4.77 There is debate in both the case law and commentaries as to whether a secret trust, whether fully secret or half-secret, is an express trust or instead a variety of constructive trust.342 The latter is usually substantiated by reference to equitable intervention here being grounded in the prevention of ‘fraud’,343 a common ground for the law to impose a constructive trust. Yet as the creation of a secret trust is premised on an inquiry into the express or inferred intention of the testator, it seems difficult to characterise it as other than an express trust, which by definition rests upon the expressed or inferred intention of a settlor. This aligns with [page 138] the notion that the court does not impose a secret trust, but recognises its prior existence by a close analysis of the evidence. Attempts have been made to reconcile the competing views. In Brown v Pourau,344 for example, Hammond J saw a secret trust as an express trust where the trustee’s obligation was supported by a remedial constructive trust. But as the court enforces express trusts according to ordinary trusts principles, to add

the constructive trust to the curial arsenal for this purpose is superfluous.345 And the suggestion that fully secret trusts should be characterised as constructive whereas half-secret ones are express346 fails to address why an intention to create a trust forms an element of both half-secret and fully secret trusts.

Operation outside the will 4.78 Although secret trusts most commonly arise in a will, they do not operate because of the will. They operate outside the will, it being sometimes said that secret trusts are dehors the will.347 This means that a beneficiary takes by virtue of the trust, not the will.348 This in turn explains why secret trusts need not satisfy the formality requirements for wills, and also why attestation of the will by a beneficiary of a secret trust does not cause his or her interest under the trust to be forfeited.349 Yet where the trust arises in a will, revocation of the will revokes the trust because the trust has yet to be constituted.350 The trust and the will are also interdependent in that the death of the secret beneficiary, as with the death of any beneficiary of a will, sees the gift to that beneficiary lapse unless the terms of the trust (or will) provide otherwise.351 It is arguable, moreover, that the (trust) arrangement outside the will must not be inconsistent with the will.352 So in Re Karsten (deceased),353 where it was established that a bequest ‘to be distributed as [my trustee] has direction from me’ created an interest in trust, the New Zealand Court of Appeal ruled inadmissible parol evidence to the effect that a beneficial interest was intended. [page 139]

Distinguishable from doctrine of incorporation by reference 4.79 The doctrine of incorporation by reference entitles the testator to make provision for an extraneous document in existence at the time the will is executed,354 and to which the will clearly refers, to become part of and read as

the will even though that document is unattested.355 This differs from the doctrine of secret trusts precisely because there is no ‘secret’ element underscoring it. It is because of this secrecy aspect that the law requires proof of intention, communication and acquiescence.

1.

2. 3. 4. 5. 6. 7. 8. 9. 10.

11.

12. 13. 14. 15.

16. 17. 18. 19. 20.

Namely Wills Act 1837 (UK) s 9. Testamentary formalities are not confined to common law jurisdictions: see generally K G C Reid, M J De Waal and R Zimmermann (eds), Testamentary Formalities, Comparative Succession Law, Vol 1, Oxford University Press, Oxford, 2011. ACT s 9; NSW s 6; NT s 8; Qld s 10; SA s 8; Tas s 8; Vic s 7; WA s 8. See 22.20. See 4.21–4.29. SA s 12(2) (since amended). See 4.30–4.52. See 4.53–4.60. See 4.61–4.67. See 4.68–4.79. See J H Langbein, ‘Substantial Compliance with the Wills Act’ (1975) 88 Harv L Rev 489 (see at 491–8 in particular); ‘The Crumbling of the Wills Act: Australians Point the Way’ (1979) 65 ABAJ 1192; ‘Excusing Harmless Errors in the Execution of Wills: A Report on Australia’s Tranquil Revolution in Probate Law’ (1987) 87 Columbia L Rev 1; C I Nelson and J M Starck, ‘Formalities and Formalism: A Critical Look at the Execution of Wills’ (1979) 6 Pepperdine L Rev 331; W F Ormiston, ‘Formalities and Wills: A Plea for Caution’ (1980) 54 ALJ 451; J G Miller, ‘Substantial Compliance and the Execution of Wills’ (1987) 36 ICLQ 559; A G Lang, ‘Formality v Intention — Wills in an Australian Supermarket’ (1985) 15 MULR 82. Rondel v Robinson Estate [2012] WTLR 1067; [2011] ONCA 493 at [36] per Juriansz JA (‘The very raison d’être of a written will, formally executed, is to record the testator’s own expression of intentions. The formalities required for the proper execution of the will advance that goal by confirming that the will provides an accurate record of those intentions’). See 1.3. Bechara v Bechara [2016] NSWSC 513; BC201602944 at [117] per Hallen J. A G Lang, ‘Formality v Intention — Wills in an Australian Supermarket’ (1985) 15 MULR 82 at 88. Legislation Act 2001 (ACT) Dictionary; Interpretation Act 1987 (NSW) s 21(1); Interpretation Act 1978 (NT) s 26; Acts Interpretation Act 1954 (Qld) s 36; Acts Interpretation Act 1915 (SA) s 4(1); Acts Interpretation Act 1931 (Tas) s 24(b); Interpretation of Legislation Act 1984 (Vic) s 38; Interpretation Act 1984 (WA) s 5. In the Goods of Adams (1872) LR 2 P & D 367. In the Goods of Adams (1872) LR 2 P & D 367 at 368 per Lord Penzance. In the Goods of Wooton (1874) 3 P & D 159. See, for example, Re H J Kleinsang (deceased) (1925) 28 SR (NSW) 455; Re Berger (deceased) [1990] Ch 118. Kelly v Charmer (1856) 23 Beav 195; 53 ER 76 (where extrinsic evidence was admitted to show that the sums bequeathed were represented in letters using a jeweller’s private code).

21. 22. 23. 24.

25. 26. 27. 28. 29.

30. 31. 32.

33.

34.

35.

36. 37. 38. 39. 40.

41. 42.

(1926) 43 TLR 71. Estate of Harris, noted by W M Elliott in (1948) 26 Can Bar Rev 1242. (1989) 53 SASR 221 at 229–30. The will was ultimately admitted to probate under the judicial dispensing power (see 4.30–4.52), as there was only one witness: at 232–3. Corbett v Newey [1998] Ch 57 at 64 per Waites LJ, at 68 per Morritt LJ; Deeks v Greenwood [2011] WASC 359; BC201110191 at [67] per E M Heenan J; Proud v Proud [2012] WASC 134; BC201202474 at [31] per E M Heenan J; Lock v Phillips [2014] WASC 92; BC201401724 at [10] per E M Heenan J. ACT s 24; NSW s 30; NT s 29; Qld s 33E; SA s 27; Tas s 44; Vic s 34; WA s 26(1)(a). See 8.67. Re Male [1934] VLR 318 at 320 per Lowe J. See, for example, Re Male [1934] VLR 318; In the Estate of Radziszewski (deceased) (1982) 29 SASR 256 (in each case where the testator proved too ill to properly sign the will). See, for example, In the Estate of J Finn (deceased) (1935) 52 TLR 153. See, for example, Jenkins v Gaisford (1863) 3 Sw & Tr 93; 164 ER 1208 (where the testator, towards the end of his life, had his usual signature engraved, so that it might be stamped on letters and other documents requiring his signature). Re Sister Albinus [1924] NZLR 880 at 881 per Adams J (noting that ‘[w]here a will is signed in an assumed name the practice is to allow that signature to pass as the mark of the testator’). See, for example, In the Estate of Cook (deceased) [1960] 1 All ER 689. See, for example, In the Goods of Blewitt (deceased) (1880) LR 5 PD 116 (where Sir James Hannen P found the initials of a testatrix and the attesting witnesses in the margin of the will opposite interlineations sufficient to render the interlineations valid); In the Estate of Theakston (1956) 74 WN (NSW) 113 (where Street CJ stated that ‘initials are equivalent to a signature, if used and placed upon the document for the purpose of authenticating the document itself or any portion of it’: at 115). See, for example, In the Goods of Chalcraft (deceased) [1948] P 222 (where the testatrix signed ‘E Chal’ when her normal signature was ‘E Chalcraft’, because she was too weak to continue). The situation is otherwise if the testator intended to complete the entire signature: Re Colling (deceased) [1972] 3 All ER 729 (discussed at 4.18). See, for example, Re Trethewey (2002) 4 VR 406; [2002] VSC 83; BC200201109; Yazbek v Yazbek [2012] NSWSC 594; BC201203869; Re Estate of Currie (2015) 12 ASTLR 361; [2015] NSWSC 1098; BC201507361; Re Estate of Michael (deceased) [2016] SASC 164; BC201609714. Electronic Transactions Act 1999 (Cth) s 10; Electronic Transactions Act 2001 (ACT) s 9; Electronic Transactions Act 2001 (NSW) s 9; Electronic Transactions (Northern Territory) Act 2000 (NT) s 9; Electronic Transactions (Queensland) Act 2001 (Qld) s 14; Electronic Transactions Act 2000 (SA) s 9; Electronic Transactions Act 2000 (Tas) s 7; Electronic Transactions (Victoria) Act 2000 (Vic) s 9; Electronic Transactions Act 2011 (WA) s 10. See, for example, Dodd v Lang (SC(NSW), Needham J, 20 July 1989, unreported) BC8901937. Bateman v Pennington (1840) 3 Moo PC 223 at 227–8; 13 ER 95 at 97 per Lord Brougham. As to the meaning of ‘presence’, see 4.17, 4.18. See, for example, In Goods of Clark (1839) 2 Curt 329; 163 ER 428. In the Goods of Bailey (1838) 1 Curt 914 at 915; 163 ER 316 at 316 per Sir Herbert Jenner (who saw nothing in the statutory language that ‘prevents the person making the signature for the testator being one of the witnesses to attest and subscribe the will’). Barrett v Bem [2012] Ch 573; [2012] EWCA Civ 52. See Theobald, pp 75–6.

43.

44. 45. 46. 47. 48. 49.

50.

51. 52. 53. 54.

55.

56. 57. 58.

59.

60. 61. 62.

In England see Administration of Justice Act 1982 (UK) s 17, inserting a new s 9 into the Wills Act 1837 (UK) (against the backdrop of a recommendation of the Law Reform Committee, TwentySecond Report — Making and Revocation of Wills, 1980, HMSO, Cmnd 7902, pp 4–5). ACT s 10; NSW s 6(2); NT s 8(3)(b); Qld s 10(6); Tas s 8(2); Vic s 7(1)(b). SA s 8. WA s 8(b). ACT s 10(1); NSW s 6(2); NT s 8(3)(a); Qld s 10(7); SA s 8(b); Tas s 8(2); Vic s 7(1)(b); WA s 8(b). [1993] Ch 90. Wood v Smith [1993] Ch 90 at 112. See also Weatherhill v Pearce [1995] 2 All ER 492 (where the signature was contained in the attestation clause, and Judge Kolbert likewise found there to be ‘one operation’: at 496). See, for example, In the Goods of Mann (deceased) [1942] P 146 (where Langton J observed that ‘if an unattached paper is to be admitted at all, there is much to be said in favour of an envelope which may reasonably be held to have a far closer relationship to a document which it encloses than a second and wholly disconnected piece of paper’, adding that ‘[e]nvelopes are, by their nature, designed to have what may be described as a dependent and secondary existence rather than an independent and primary life of their own’: at 150); In the Will of Curry (deceased) (1945) 46 SR (NSW) 158. See, for example, In the Estate of Bean [1944] P 83; Re Beadle (deceased) [1974] 1 All ER 493. See, for example, Re Young (deceased) [1969] NZLR 454 (sheets fastened by a paper clip). In the Goods of Mann (deceased) [1942] P 146 at 149 per Langton J (‘The rule as to attachment, physically or otherwise, of the documents, is clearly designed to obviate the possibility of fraud’). See, for example, In the Goods of Tiernan (deceased) [1942] IR 572 at 580 per Hanna J; Re Little (deceased) [1960] 1 All ER 387 at 391 per Sachs J (where the five sheets in issue were pressed together on the deceased’s table). The will must already have been signed before acknowledgment: In the Goods of Olding (deceased) (1841) 2 Curt 865; 163 ER 611 (where Sir Herbert Jenner rejected a will that was signed by the testator after the witnesses had subscribed their names). See, for example, In the Goods of Davies (deceased) (1850) 2 Rob 377; 163 ER 1337; Re Sanders [1944] SASR 22. See, for example, Daintree v Butcher (1888) LR 13 P & D 102. In the Goods of Gunstan (1882) LR 7 PD 102 at 108 per Jessel MR (‘it is not sufficient even if the testator were to say, “My signature is inside the paper,” unless the witnesses were able to see the signature’). See, for example, Daintree v Butcher (1888) LR 13 P & D 102 (where Cotton LJ, with whom Fry and Lopes LJJ concurred, remarked that ‘it is not necessary for the testator to say “this is my signature,” but if it is placed so that the witnesses can see it, and what takes place involves an acknowledgment by the testator that the signature is his, that is enough’: at 103); Re Skelton [1930] VLR 323. See, for example, Ilott v Genge (1844) 4 Moo PC 265; 13 ER 304 (no valid acknowledgment where the paper in question was so folded that the witnesses could not see the signature); In the Goods of Gunstan (1882) LR 7 PD 102. See, for example, Re Groffman (deceased) [1969] 2 All ER 108. ACT s 9(1)(c); NSW s 6(1)(b); NT s 8(1)(b); Qld s 10(3); SA s 8(c); Tas s 8(1)(b); Vic s 7(1)(c); WA s 8(c). In the Estate of Gibson (deceased) [1949] P 434; NSW s 9; NT s 11; Qld s 10(10); Tas s 11; Vic s 10; WA s 11.

63. 64. 65. 66. 67. 68.

69. 70. 71. 72. 73.

74. 75.

76. 77.

78. 79. 80. 81. 82.

83.

84. 85. 86.

See, for example, In the Will of Morgan [1950] VLR 335. Hudson v Parker (1844) 1 Rob 14 at 24; 163 ER 948 at 952 per Dr Lushington. Certoma, pp 94, 95. ACT s 9(1)(c); NSW s 6(1)(c); NT s 8(1)(c), (2); Qld s 10(4); SA s 8(e); Tas s 8(1)(c); Vic s 7(1)(d); WA s 8(d). Bechara v Bechara [2016] NSWSC 513; BC201602944 at [118] per Hallen J. See, for example, Re Sanders [1944] SASR 22 (where the witnesses, though not present at the testator’s signature, were present at the time of the testator’s acknowledgment, and accordingly their attestation was effective: at 25 per Mayo J). See 4.6. See, for example, In the Will of Wagg (1933) 50 WN (Pt 1) (NSW) 226. See, for example, Re Beadle (deceased) [1974] 1 All ER 493. A will may consist of a number of pages, each signed by the testator, but the signature attested must be the operative (usually the last) one. See, for example, Re Lucas (deceased) [1966] VR 267 (where Adam J concluded that, as the witnesses subscribed the relevant document ‘with no intention other than to attest what would have appeared to them to have been the signature of the testatrix but which in fact was a copy only of her signature made by some other person’ (at 270), the attestation was not effective). NSW s 7; NT s 9; Qld s 10(5); Tas s 9; Vic s 8. The absence of provision to the contrary in the remaining jurisdictions suggests that the position is the same there. See, for example, Casson v Dade (1781) 1 Bro CC 99; 28 ER 1010 (where a will attested by the witnesses where the testator could see them through the windows of her carriage and of the attorney’s office was upheld). Cf In the Will and Codicil of Callow (deceased) [1918] VLR 406 (where Cussen J refused to admit a codicil to the testator’s will in circumstances where the evidence revealed that the witnesses had signed in another room and the testator had not seen them do so). See, for example, Right v Price (1779) 1 Doug 241; 99 ER 157 (where, at the time of the attestation, the testator was ‘insensible’, ‘a log’ and ‘totally absent to all mental purposes’). See, for example, Brown v Skirrow [1902] P 3 (where a witness who, at the time the testator signed the will, was engaged at the other side of the shop wherein the will was signed, with a person who stood between him and the testator, was held not to be ‘in the presence’ of the testator for this purpose). [1972] 3 All ER 729. Re Colling (deceased) [1972] 3 All ER 729 at 731. ACT s 9(2); SA s 8(d); WA s 8(d). NSW s 6(3); NT s 8(4); Qld s 10(9); Tas s 8(3); Vic s 7(2). [1950] 1 All ER 1009 at 1010 per Hodson J. A more verbose clause, also approved in that case, reads: ‘Signed by the above named testator as his last will in the presence of us, both present at the same time, who, in his presence at his request, and in the presence of each other, have hereunto subscribed our names as witnesses’. See, for example, In the Estate of Strong (deceased) [1915] P 211 (where Sir Samuel Evans P resorted to evidence of the surrounding circumstances both in connection with the document itself and outside of it); Coppola v Nobile (No 2) [2012] SASC 129; BC201205957 at [114]–[132] per Stanley J. See 11.19. The maxim — its full form being omnia praesumuntur solemniter esse acta — essentially means that all things are presumed to be done solemnly, that is, rightly or regularly. Wright v Rogers (1869) LR 1 PD 678 at 682 per Lord Penzance. See, for example, In the Estate of Musgrove [1927] P 264; Re Young (deceased) [1969] NZLR 454; Re Unsworth (deceased) (1974) 8 SASR 312 (even though the evidence revealed that the witnesses attested before the testator’s signature);

87. 88. 89.

90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102.

103.

104.

Smith v Smith (1985) 80 FLR 444; Sherrington v Sherrington [2005] WTLR 587; [2005] EWCA Civ 326; Poole v Everall [2016] WTLR 1621; [2016] EWHC 2126 (Ch) at [99]–[103] per HHJ David Cooke. Cf In the Goods of Peverett [1902] P 205 (where Jeune P applied the presumption even in the absence of an attestation clause, absent suspicious circumstances, though conceding that ‘in this case, where there is no attestation clause at all, I am going to the furthest limit’: at 207); Pattie v Fry (1911) 30 NZLR 581 (where there was no regular attestation clause but the will was witnessed by two witnesses, Chapman J admitted it to probate relying on the presumption of due execution). See, for example, Re Bladen [1952] VLR 82. Re Bladen [1952] VLR 82 at 86–7 per Sholl J. See, for example, Nicholas v Penn [2004] WASC 227; BC200407274. See, for example, Re Groffman (deceased) [1969] 2 All ER 108 (where the evidence revealed that the attesting witnesses neither saw nor were capable of seeing the testator’s signing: at 113 per Sir Jocelyn Simon P). The history of privileged wills is catalogued in A G Lang, ‘Privileged Wills — A Dangerous Anachronism?’ (1985) 8 U Tas L Rev 166. 29 Car II, c 3 (and subsequently as s 11 of the Wills Act 1837 (UK)). New South Wales Law Reform Commission, Wills — Execution and Revocation, Report 47, 1986, p 146. See 4.30–4.52. This stems from the statutory requirement that there be a ‘document’: see 4.36. Via the Wills, Probate and Administration (Amendment) Act 1989 (NSW), as from 1 November 1989. Via the Wills Act 1997 (Vic), as from 20 July 1998 (upon the recommendation of VLRC, 1994, pp 62–6). Via the Wills Act 2000 (NT), as from 1 March 2001. Via the Succession Amendment Act 2006 (Qld), as from 1 April 2006. Via the Wills Amendment Act 2007 (WA), as from 9 February 2008. Via the Wills Act 2008 (Tas), as from 1 March 2009. ACT s 16; SA s 11. These have their genesis in s 11 of the Wills Act 1837 (UK). See Hardingham, Neave and Ford, Ch 4. See Wills Act 2007 (NZ) ss 33–38 (‘Military or seagoing persons’). It was pressed upon the New Zealand Law Commission, in its review that led to the 2007 Act, to statutorily abolish privileged wills. In recommending the retention of the privilege, the Commission was heavily influenced by the view of the New Zealand Defence Force that provision for informal will-making by the Armed Forces should remain. It reasoned that a member of the Armed Forces may be given short notice of dangerous active service, and that, upon learning at the same time of a change in a relationship with an intended beneficiary, he or she may need to make, amend, or revoke a will urgently, wherein it would appear unreasonable to require him or her to satisfy the usual formalities: New Zealand Law Commission, Succession Law — A Succession (Wills) Act, NZLC R41, October 1997, p 5. Wills Act 1837 (UK) s 11; Wills (Soldiers and Sailors) Act 1918 (UK). See also Law Reform Committee, Twenty-Second Report — Making and Revocation of Wills, 1980, HMSO, Cmnd 7902, p 9 (recommending the retention of the privilege). See, for example, Wills and Succession Act 2010 (Alta) ss 17, 18 (‘military wills’) (see Alberta Law Reform Institute, The Creation of Wills, Final Report, No 96, September 2009, Ch 5); Wills, Estates and Succession Act 2009 (BC) s 38 (cf British Columbia Law Institute, Wills, Estates and Succession: A Modern Legal Framework, BCLI Report No 45, June 2006, pp 26–8); Wills Act 2004 (Man) s 5; Wills Act 1973 (NB) s 5; Wills Act 1989 (NS) s 9; Succession Law Reform Act 1990 (Ont) s 5; Wills

Act 1996 (Sask) s 6. 105. See, for example, In the Estate of Yates (deceased) [1919] P 93 (where the deceased, a lieutenant in the Royal Navy, on the day of leaving on a wartime mission, said to his son: ‘Remember that if anything happens to me, everything I possess, or am likely to possess, is to go to your mother’). 106. See, for example, In the Goods of Saunders (1865) LR 1 P & D 16. 107. See A G Lang, ‘Privileged Will — A Dangerous Anachronism?’ (1988) 8 U Tas L Rev 166 at 176 (who notes two cases where privileged wills were admitted to probate even when the testator died 42 years (Re Booth [1926] P 118) and 22 years (Re Ward [1966] QWN 15), respectively, after having made the will). 108. ACT s 16(1). 109. ACT s 16(6). 110. ACT s 16(3)–(5). 111. SA s 11. 112. [1949] P 187 at 195. 113. Re Wingham (deceased) [1949] P 187 at 196. 114. (1958) 78 WN (NSW) 334. 115. Will of Anderson (1958) 78 WN (NSW) 334 at 335. 116. [1981] Fam 7. 117. Re Jones (deceased) [1981] Fam 7 at 13. 118. In the Estate of Knibbs (deceased) [1962] 2 All ER 829 at 832–3 per Wrangham J. 119. Re Stable (deceased) [1919] P 7 at 9 per Horridge J; Godman v Godman [1919] P 229 at 233 per Horridge J; Selwood v Selwood (1920) 125 LT 26 at 27 per Horridge J; In the Goods of Spicer (deceased) [1949] P 441 at 444–5 per Hodson J; Re Lowe (deceased) [1949] VLR 169 at 172–3 per Fullagar J. 120. [1949] VLR 169. 121. [1919] P 7. Similar facts in other cases have generated the same outcome: see, for example, Gattward v Knee [1902] P 99; In the Estate of J King Spark (deceased) [1941] P 115. 122. See, for example, Re Godfrey (deceased) [1944] NZLR 476 (involving a letter written at sea in wartime). 123. In the Matter of the Estate of Donner (deceased) (1917) 34 TLR 138 (where evidence that the deceased said, ‘I am content not to make a will because my mother gets everything if I don’t’, was found to reveal an absence of testamentary intent); Re Edgar (deceased) [1919] VLR 683 (involving what Hood J described as ‘only a memorandum of what [the deceased] intended to put in his will’: at 688). 124. In the Estate of Knibbs (deceased) [1962] 2 All ER 829 (involving a casual conversation between the deceased and the head barman concerning their respective family affairs). 125. See, for example, In the Estate of Davies [1951] 1 All ER 921 at 922 per Morris J; Re Colling (deceased) [1972] 3 All ER 729 at 731–2 per Ungoed-Thomas J. 126. South Australian Law Reform Committee, Reform of the Law of Intestacy and Wills, Report No 28, 1974. 127. Re Estate of TLB (2005) 94 SASR 450; [2005] SASC 459; BC200510563 at [21] per Gray J. See also D’Unienville v Sakalo (No 2) [2013] WASC 469; BC201316404 at [136] per E M Heenan J (referring to the dispensing power being designed to ‘ensure that a person’s intentions, particularly of one who may not be familiar with the law, uneducated or disadvantaged, are not frustrated by strict legal requirements which would nullify the implementation of what plainly emerges to have been the actual intention of the deceased in expressing his or her testamentary wishes’). 128. ACT s 11A; NSW s 8 (originally s 18A of the (then) Wills, Probate and Administration Act 1898; see New South Wales Law Reform Commission, Wills — Execution and Revocation, Report 47, 1986,

129. 130. 131. 132.

133.

134.

135.

136.

Ch 6); NT s 10 (see Northern Territory Law Reform Committee, Report Relating to the Attestation of Wills by Interested Witnesses and Due Execution of Wills, No 2, November 1979); Qld s 18 (formerly Qld s 9(a)); Tas s 10 (formerly Wills Act 1992 (Tas) s 26; see Law Reform Commission of Tasmania, Reform of the Law of Wills, Report No 35, 1983, p 10); Vic s 9; WA s 32 (formerly WA s 34; see Law Reform Commission of Western Australia, Wills: Substantial Compliance, Project No 76, Pt I, November 1985). See 4.32. VLRC, 1994, pp 67–79. QLRC, MP 29, pp 12–16. See Wills and Succession Act 2010 (Alta) ss 37, 38 (see Alberta Law Reform Institute, Wills: Noncompliance With Formalities, Final Report, No 84, June 2000); Wills, Estates and Succession Act 2009 (BC) s 58 (see British Columbia Law Institute, Wills, Estates and Succession: A Modern Legal Framework, BCLI Report No 45, June 2006, pp 21–6); Wills Act 2004 (Man) s 23 (see Re Pouliot (1984) 30 Man R (2d) 178); Wills Act 1973 (NB) s 35.1; Wills Act 1989 (NS) s 8A (see Law Reform Commission of Nova Scotia, Reform of the Nova Scotia Wills Act, 2003, p 28); Wills Act 1996 (Sask) s 37. Wills Act 2007 (NZ) s 14 (which vests in the court the power to make an order declaring a document that ‘appears to be a will’ valid, notwithstanding non-compliance with the formalities, ‘if it is satisfied that the document expresses the deceased person’s testamentary intentions’: s 14(2); as to the backdrop for this initiative, see New Zealand Law Commission, Succession Law — A Succession (Wills) Act, NZLC R41, October 1997, pp 18–19). See, for example, Re Rejouis (deceased) [2010] 3 NZLR 422; Re Estate of Murray [2012] 2 NZLR 546; Re Feron [2012] 2 NZLR 551; Wardill v Anderson [2016] NZHC 3114; BC201663215. See further N Peart, ‘Where There’s a Will, There is a Way — A New Wills Act for New Zealand’ (2007) 15 Waikato L Rev 26 at 32–6; N Peart and G Kelly, ‘The Scope of the Validation Power in the Wills Act 2007’ [2013] NZ L Rev 73 (noting that the slight difference in wording vis-à-vis the Australian provisions has allowed for a more liberal application of the power in New Zealand; hence the need for caution when considering Australian decisions, as their s 14 equivalent has different words: Estate of Wong [2014] NZHC 2554; BC201463874 at [22] per Asher J). Pursuant to the Uniform Probate Code, §5-203 (‘Although a document or writing added upon a document was not executed in compliance with §2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent’s will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of his [or her] formerly revoked will or of a formerly revoked portion of the will’). See S Lester, ‘Admitting Defective Wills to Probate, Twenty Years Later: New Evidence for the Adoption of the Harmless Error Rule’ (2007) 42 Real Prop Prob & Tr J 577; J V Orth, ‘Wills Act Formalities: How Much Compliance is Enough?’ (2008) 43 Real Prop Tr & Est LJ 73; D Horton, ‘Wills Law on the Ground’ (2015) 62 UCLA L Rev 1094. The prospect of a judicial dispensing power was considered early on by the Law Reform Committee (see Twenty-Second Report — Making and Revocation of Wills, 1980, HMSO, Cmnd 7902, pp 3–4), which recommended against its inclusion on the ground that ‘by making it less certain whether or not an informally executed will is capable of being admitted to probate, it could lead to litigation, expense and delay, often in cases where it could least be afforded’ (p 4). Queensland Law Reform Commission, Report on the Law Relating to Succession, Report 22, 1978, pp 6–7.

137. See J H Langbein, ‘Substantial Compliance with the Wills Act’ (1975) 88 Harv L Rev 489. 138. Qld s 9(a) (since repealed). 139. See the discussion in J de Groot, ‘Will Execution Formalities — What Constitutes Substantial Compliance?’ (1990) 20 QLSJ 93. 140. Re the Will of Eagles [1990] 2 Qd R 501 at 506 per Williams J. 141. [1985] 1 Qd R 513. 142. Re Grosert [1985] 1 Qd R 513 at 515. 143. [1985] 1 Qd R 516. 144. Re Johnston [1985] 1 Qd R 516 at 519. 145. See, for example, Public Trustee v Attorney General [2004] QSC 328; BC200406269. 146. J H Langbein, ‘Excusing Harmless Errors’ (1987) 87 Columbia L Rev 1 at 41. 147. With the commencement date of the Succession Amendment Act 2006 (Qld). 148. (1984) 36 SASR 423 at 425. See also Re Estate of Graham (deceased) (1978) 20 SASR 198 at 202 per Jacobs J; In the Estate of Masters (deceased) (1994) 33 NSWLR 446 at 452; BC9405178 per Kirby P. 149. Belcastro v Belcastro [2004] WASC 111; BC200402966 at [6] per Commissioner Odes QC; Re Estate of Brock (2007) 1 ASTLR 127; [2007] VSC 415; BC200709039 at [20] per Hollingworth J; Burge v Burge [2015] NSWCA 289; BC201509232 at [49] per Leeming JA (remarking that the beneficial or remedial purpose of the legislation does not dictate that in every finely balanced case, the plaintiff who propounds an informal testamentary document must succeed). 150. Re Stuckey (2014) 11 ASTLR 43; [2014] VSC 221; BC201403811 at [40]–[42] per McMillan J; Jageurs v Downing [2015] VSC 432; BC201507919 at [19], [20] per McMillan J. 151. See 2.21, 2.22. 152. See, for example, Estate of Bulder (deceased) [2012] NSWSC 1328; BC201210528 (where Nicholas J refused to construe a suicide note as an informal valid will, not only because the deceased lacked testamentary capacity, but because its wording was more of a farewell, phrased in precatory terms, with imprecise, wide and vague language). 153. See 2.48–2.54. 154. See 2.39–2.47. 155. See, for example, Konui v Tasi [2015] QSC 74; BC201502366 (where Boddice J was unconvinced that the deceased had testamentary capacity to understand the nature and effect of the informal document). As to the requisite testamentary capacity, see 2.2–2.20. 156. As to this presumption, see 2.17. 157. Fielder v Burgess [2014] SASC 98; BC201406394 at [25] per Kourakis CJ. See also Ackerley v Felton [2012] NSWSC 1468; BC201210652 at [30] per Young AJ. 158. See, for example, the following cases where suicide notes have been held to be testamentary: Ryan v Kazacos (2001) 183 ALR 506; [2001] NSWSC 140; BC200100812; Schlesinger v Bowman (2007) 16 Tas R 350; [2007] TASSC 57; BC200706335; Costa v Public Trustee (NSW) (2008) 1 ASTLR 56; [2008] NSWCA 223; BC200809445; Public Trustee v Alexander [2008] NSWSC 1272; BC200810521; APK v JDS (2012) 267 FLR 478; [2012] NTSC 96; BC201209553; Fielder v Burgess [2014] SASC 98; BC201406394; Re Estate of Russell (deceased) [2016] SASC 56; BC201602860. Cf NSW Trustee and Guardian v Pittman [2010] NSWSC 501; BC201003213 (where White J found that, although an undated suicide note, by using the words ‘of sound mind’, indicated that the deceased intended to make a testamentary instrument, other factors outweighed that conclusion: the statement that the deceased’s mother or brother should pay her debts was more consistent with the document being an expression of her wishes as to how her family should act after her death rather than being intended to be a will; the gift of the deceased’s horse used precatory and not dispositive

159. 160. 161.

162. 163. 164. 165. 166.

167.

168. 169. 170.

171.

172.

language; that the gifts of real property, of debts owed to the deceased and the horse did not deal with all her property; and the looseness of language in the terms of the document were consistent with an intention that the document not be a testamentary act: at [33]–[37]); Re Estate of Brown (deceased) [2016] SASC 199; BC201611441 (where Stanley J was not satisfied that the deceased intended a suicide letter, written only 4 days after execution of his will, to constitute a codicil to the will, as the deceased understood the necessity for testamentary formalities: at [33]). See, for example, Owen v Public Trustee [2006] WASC 276; BC200610272. As to the issue of timing, see 4.49, 4.50. These requirements follow the statutory language: see In the Estate of Ryan (deceased) (1986) 40 SASR 305 at 309–10 per O’Loughlin J; Re Application of Brown (1991) 23 NSWLR 535 at 539–40 per Powell J; Re Estate of Sharman [1999] NSWSC 709; BC9903891 at [31]–[34] per Young J; Re Estate of Hines [1999] WASC 111; BC9904548 at [12] per Owen J; Hatsatouris v Hatsatouris [2001] NSWCA 408; BC200107669 at [56] per Powell JA. Re Estate of Schwartzkopff (2006) 94 SASR 465; [2006] SASC 131; BC200603198 at [47] per Gray J; Re Estate of Brock (2007) 1 ASTLR 127; [2007] VSC 415; BC200709039 at [23] per Hollingworth J. NT s 10(1); WA s 32(1). NSW s 3(1) (see Interpretation Act 1987 (NSW) s 21(1)); Qld s 5 (see Acts Interpretation Act 1954 (Qld) s 36); Tas s 10(4) (see Acts Interpretation Act 1931 (Tas) s 24(bb)); Vic s 9(6) (see Interpretation of Legislation Act 1984 (Vic) s 38). Legislation Act 2001 (ACT) Dictionary; Acts Interpretation Act 1915 (SA) s 4(1); In the Estate of Wilden (deceased) (2015) 121 SASR 516; [2015] SASC 9; BC201500208 at [12] per Gray J. Re Estate of Torr (2005) 91 SASR 17; [2005] SASC 49; BC200500238 at [30]–[32] per Besanko J (remarks made before the Acts Interpretation Act 1915 (SA) was amended to include a definition of ‘document’). See, for example, Ryan v Kazacos (2001) 183 ALR 506; [2001] NSWSC 140; BC200100812; Schlesinger v Bowman (2007) 16 Tas R 350; [2007] TASSC 57; BC200706335; Costa v Public Trustee (NSW) (2008) 1 ASTLR 56; [2008] NSWCA 223; BC200809445; Public Trustee v Alexander [2008] NSWSC 1272; BC200810521; Aaron v Griffiths [2008] WASC 26; BC200801108; APK v JDS (2012) 267 FLR 478; [2012] NTSC 96; BC201209553; Fielder v Burgess [2014] SASC 98; BC201406394; Re Estate of Russell (deceased) [2016] SASC 56; BC201602860. See, for example, In the Estate of Slavinskyi (deceased) (1989) 55 SASR 221, discussed at 4.5. See 11.20–11.23. See, for example, In the Estate of Blakely (deceased) (1983) 32 SASR 473; In the Estate of Gwynne (deceased) (1988) 48 SASR 209; Whiteley v Clune (No 2) (SC(NSW), Powell J, 13 May 1993, unreported) BC9301902. See, for example, Treacey v Edwards (2000) 49 NSWLR 739; [2000] NSWSC 846; BC200005014 (where Austin J admitted to probate an audio tape under the dispensing power); Re Yu (2013) 11 ASTLR 490; [2013] QSC 322; BC201315105 (where Peter Lyons J found that an electronic recording on an iPhone preceding the deceased’s suicide was a document that purported to state his testamentary intention). See further R Cumming, ‘Wills on iPhones and DVDs: The Approach of Australian Courts to Electronic Wills’ (2014) 12(2) Trust Quarterly Rev 26. See, for example, Mellino v Wnuk [2013] QSC 336; BC201315582; Re Estate of Chan (deceased) [2015] NSWSC 1107; BC201507395; Re Estate of Wilden (deceased) (2015) 121 SASR 516; [2015] SASC 9; BC201500208. Cf Cassie v Koumans [2007] NSWSC 481; BC200703603 (where Windeyer J held that a video tape purporting to explain the testator’s will was not intended to be an amendment to the will, and thus could not be admitted to probate under the dispensing power).

173. See, for example, Re Estate of Torr (2005) 91 SASR 17; [2005] SASC 49; BC200500238 (where Besanko J admitted to probate, under the dispensing power, unsigned photographs of personal property as a codicil to the testator’s will). 174. See, for example, Re Trethewey (2002) 4 VR 406; [2002] VSC 83; BC200201109 (where Beach J admitted to probate a computer file containing a ‘will’, as the deceased had told several people that he had left a will on his computer, the contents of which were consistent with what the deceased had told friends concerning his testamentary intentions); Yazbek v Yazbek [2012] NSWSC 594; BC201203869 (where Slattery J admitted to probate a computer file ‘will.doc’ upon finding that it purported to state the deceased’s testamentary intentions, not only because of its title but because it contained directions as to the distribution of significant parts of his estate and was phrased in anticipation of death); Re Estate of Currie (2015) 12 ASTLR 361; [2015] NSWSC 1098; BC201507361 (where Bergin CJ in Eq admitted to probate a document found on the deceased’s computer after his death because it was clearly expressed in language of testamentary intention); Re Estate of Michael (deceased) [2016] SASC 164; BC201609714 (computer file entitled ‘last will and testament’ stored on the hard drive of the deceased’s laptop held to be a ‘document’ in view of, inter alia, a printed copy that bore a digital or facsimile copy of the deceased’s signature). Cf Mahlo v Hehir (2011) 4 ASTLR 515; [2011] QSC 243; BC201106313 (where McMurdo J found that, owing to the deceased’s experience, she knew more was required to effect the validity of her will than merely typing or modifying an electronic document, and so did not intend the document to be her will: see 4.44); Re Application of Tristram [2012] NSWSC 657; BC201204618 (where incompleteness and blanks in a computer document ‘will.doc’ revealed, inter alia, that the deceased did not consider that he had completed the task of making a will). As to the issue of computer wills, see generally N Kasirer, ‘From Written Record to Memory in the Law of Wills’ (1997–98) 29 Ottawa L Rev 39; British Columbia Law Institute, Wills, Estates and Succession: A Modern Legal Framework, BCLI Report No 45, June 2006, pp 29–33; Alberta Law Reform Institute, The Creation of Wills, Final Report, No 96, September 2009, pp 43–54. 175. ACT s 11A(1); NSW s 8(1)(a); NT s 10(2); Qld s 18(1); Tas s 10(1); WA s 32(1). 176. Re Estate of Torr (2005) 91 SASR 17; [2005] SASC 49; BC200500238 at [34] per Besanko J. 177. In the Estate of Masters (deceased) (1994) 33 NSWLR 446 at 452; BC9405178. See also at 455 per Mahoney JA (‘There is, in principle, a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, ie, to operate as his will’). 178. Estate of Wong [2014] NZHC 2554; BC201463874 at [24] per Asher J. See, for example, Estate of Leaney [2014] NSWSC 1562; BC201409387 at [30] per Nicholas AJ (noting that if the evidence supports an intention to create a testamentary document, and to operate in this fashion, that its title is ‘power of attorney’ does not preclude its validation). 179. Re Estate of Graham (deceased) (1978) 20 SASR 198 at 205 per Jacobs J. 180. Being the phrase used by P Vines, ‘The Quality and Proof of Intention in the Dispensing Power: Lessons from a Short History’ (2002) 9 APLJ 264 at 270–4. 181. Lindsay v McGrath [2016] 2 Qd R 160; [2015] QCA 206; BC201510340 at [61] per Boddice J, with whom Gotterson JA concurred. See also Re Polyak Estate [1999] NSWSC 862; BC9905576 at [14] per Austin J. As it applies by way of emphasis, it has been suggested that the phrase ‘without more’ may not add anything truly material to the statutory language of the third requirement: Estate of Verzijden [2013] NSWSC 371; BC201301871 at [95] per Hallen J; Estate of Angius [2013] NSWSC 1895; BC201316540 at [260] per Hallen J. 182. Mitchell v Mitchell [2010] WASC 174; BC201005194 at [36] per E M Heenan J. See also Fast v

183. 184. 185.

186.

187. 188.

189. 190. 191. 192.

193. 194.

Rockman [2013] VSC 18; BC201300346 at [114] per Habersberger J (the phrase emphasising that the court must be satisfied that the deceased really did intend the terms of the document — ‘without any alteration or reservation’ — to be the manner in which his or her property was to be disposed of upon his or her death); Estate Moran [2014] NSWSC 1839; BC201411958 at [28] per Lindsay J (‘What those words do is direct attention to a consideration of whether the particular document was intended to operate as a will: to have present operation as such, not to serve merely as a draft, a diary note or the like’); Estate of Irvine [2015] NSWSC 432; BC201502670 at [29] per Stevenson J (‘The relevant enquiry is whether the deceased intended that the document in question itself, and not some later iteration of it then within the contemplation of the deceased, would “form” (that is to say “be”) the deceased’s will’). See 2.21. In the Estate of Parkinson (deceased) (1988) 143 LSJS 336 at 340 per White J. National Australia Trustees Ltd v Fazey [2011] NSWSC 559; BC201103959 at [18] per Windeyer AJ (noting that ‘[m]any people write out proposals for their wills on pieces of paper headed “will” but often these are no more than present thoughts not testamentary intentions and certainly not intended to be wills’, although on the facts exercising the dispensing power). See, for example, Re Estate of Perriman (deceased) [2003] WASC 191; BC200305816; Equity Trustees Ltd v Levin [2004] VSC 203; BC200403452; Re Strickland (deceased) [2004] WASC 261; BC200408525 (where Johnson J found ‘nothing in the available evidence which takes this document beyond a set of instructions’: at [18]); Oreski v Ikac [2008] WASCA 220; BC200809666. See further R Atherton, ‘Dispensing with Wills Formality in Australia: The Problem of the Draft Will’ (1994) 2 APLJ 68. Estate of Angius [2013] NSWSC 1895; BC201316540 at [282] per Hallen J; Re Gregg (deceased) [2013] WASC 325; BC201303300 at [10] per Boyle R (‘Probate is not granted of a set of ideas. It is granted of a testamentary document or a copy or a reconstruction of such a document’). See, for example, Estate of Wilson (1991) 24 NSWLR 334 at 337–8 per Powell J; NSW Trustee and Guardian v Pittman [2010] NSWSC 501; BC201003213 at [35] per White J. See, for example, Re Estate of Schwartzkopff (2006) 94 SASR 465; [2006] SASC 131; BC200603198 (where Gray J declined to admit a draft will to probate, as a delay exceeding 2 months between the draft being ready for execution and the deceased’s death raised doubt over whether the draft accurately reflected his testamentary intentions, suggesting instead that the deceased may have wished to consider further terms: at [54], [55]); D’Unienville v Sakalo (No 2) [2013] WASC 469; BC201316404 (where telephone instructions to solicitors regarding the deceased’s will was not treated as an informal will in the face of ‘much evidence of irresolution and procrastination’ by the deceased about the preparation of a will: at [140] per E M Heenan J); Bechara v Bechara [2016] NSWSC 513; BC201602944 (where the deceased had been encouraged on several occasions to sign the relevant document but, notwithstanding many opportunities to authenticate the document as his will during the 18 months preceding his death, chose not to; this inclined Hallen J against exercising the dispensing power: at [136], [137]). Jabado v Da Prato [2016] WASC 98; BC201602113 at [66] per Tottle J. Jabado v Da Prato [2016] WASC 98; BC201602113 at [6] per Tottle J. [2013] VSC 18; BC201300346 at [115]. See, for example, Re Brundall (deceased) [2011] 3 NZLR 528; Re Spencer (deceased) [2015] 2 Qd R 435; [2014] QSC 276; BC201409771; Re the Estate of Young [2015] WASC 409; BC201510629; Wardill v Anderson [2016] NZHC 3114; BC201663215. [2011] VSC 277; BC201104678. Will and Estate of Bateman [2011] VSC 277; BC201104678 at [45].

195. (2014) 119 SASR 523; [2014] SASC 86; BC201405245 at [26], [27]. 196. [2016] NSWSC 201; BC201601515 at [72]. 197. See, for example, Re Estate of Wood (2014) 11 ASTLR 301; [2014] NTSC 14; BC201402815; Re Leber (deceased) [2014] SASC 47; BC201402407. 198. [2016] 2 Qd R 160; [2015] QCA 206; BC201510340 at [73] per Boddice J, with whom Gotterson JA concurred. Contra at [18]–[21] per Philippides JA, dissenting. 199. [2015] NSWCA 289; BC201509232 at [1]. 200. Burge v Burge [2015] NSWCA 289; BC201509232 at [1] per Macfarlan J, at [46] per Leeming JA (describing the case as ‘highly unusual … because the deceased appears to have had a practice of signing documents, and keeping them, knowing that they were of no legal effect’). 201. Burge v Burge [2015] NSWCA 289; BC201509232 at [1] per Macfarlan J, at [46] per Leeming JA. See further 4.46. 202. [2012] NSWSC 1490; BC201210065. 203. Re Estate of Margaret (deceased) [2012] NSWSC 1490; BC201210065 at [31]. 204. Re Estate of Margaret (deceased) [2012] NSWSC 1490; BC201210065 at [32]. 205. (1991) 23 NSWLR 535. 206. Re Application of Brown (1991) 23 NSWLR 535 at 540. 207. His Honour cited In the Estate of Allan (SC(NSW), Needham AJ, 24 September 1990, unreported) and Cloonan v Allingham (SC(NSW), Needham AJ, 14 December 1990, unreported) as case examples of the latter scenario. 208. Re Estate of Brock (2007) 1 ASTLR 127; [2007] VSC 415; BC200709039 at [34] per Hollingworth J. 209. [2002] NSWSC 900; BC200206252 at [43]. See also Kedzier v Postle [2002] NSWSC 875; BC200205834 (where Macready AJ refused to admit an unwitnessed codicil, the deceased being well aware of the witnessing requirement through a distinct pattern of drawing up home-made wills, using a template of a solicitor-drawn will: at [37]). 210. Re Estate of Johnston (2010) 3 ASTLR 599; [2010] NSWSC 382; BC201002675 at [8] per Slattery J. 211. [2016] VSC 694; BC201609919 at [88]. 212. See, for example, Prucha v Standing [2011] VSC 90; BC201101325 at [68] per Beach J; Rowe v Storer [2013] VSC 385; BC201311493 at [50]–[54] per McMillan J. 213. See, for example, McCann v McCann (2013) 11 ASTLR 547; [2013] NSWSC 78; BC201301123 (where the deceased, who the evidence revealed to be a tidy and fastidious man, authored an informal note of testamentary wishes containing spelling errors that appeared in some senses as a rough draft; however, in the face of evidence that the deceased was very upset and that his demeanour had changed, White J concluded that the deceased considered that he had changed his will by preparing the note, and admitted the note to probate: at [21]). 214. (1994) 33 NSWLR 446 at 453 per Kirby P, at 469 per Priestley JA; BC9405178. 215. (2009) 2 ASTLR 283; [2009] NSWSC 553; BC200905109 at [25]. 216. [2012] NSWSC 1468; BC201210652 at [34], [35]. 217. [2007] NSWSC 974; BC200707533. 218. Williams v Public Trustee of New South Wales (No 2) [2007] NSWSC 974; BC200707533 at [85]. Cf NSW Trustee and Guardian v Halsey [2012] NSWSC 872; BC201205666 (where the fact that the deceased placed the relevant document in a safe deposit box was a factor, coupled with the nature of the document and uncontradicted evidence of the deceased’s remarks to third parties as to the document, that led White J to conclude that the absence of formality should not preclude the document being treated as the deceased’s legal will). 219. (SC(NSW), Powell J, 10 April 1992, unreported) BC9201949. 220. See 4.39.

221. See, for example, Re Vogele [2009] 1 Qd R 291; [2007] QSC 404; BC200712275 (where Douglas J found no evidence, apart from the completion of some of the blanks, that ‘the deceased by some act or words demonstrated that it was his intention that the form should without more operate as his will’, and when coupled with the inconsistency of his statements to the witnesses about his testamentary intentions, as well as his failure to sign the document, ‘all argue against the approach that probate should be granted’: at [20]). 222. See, for example, D’Unienville v Sakalo (No 2) [2013] WASC 469; BC201316404 (‘the fact that the instructions were incomplete in failing to specify the quantum of the legacy to be left to the plaintiff shows that it is unlikely that, in that respect, the instructions represented a final and settled choice by the deceased about that gift’: at [160] per E M Heenan J). 223. In the Estate of Kelly (deceased) (1983) 32 SASR 413 at 417–18 per Sangster J. In Dolan v Dolan [2007] WASC 249; BC200709256 at [26] Murray J interpreted the relevant provision as referring to the date of death as the relevant date at which the intention must be exhibited, reasoning that the phrase ‘the deceased intended the document to constitute his will’ means that ‘the deceased intended the document to take effect as a testamentary disposition, a disposition of property upon his death’, from which ‘[i]t must follow that the relevant time for the intention to be established is at the date of death’. This is odd, as it goes against a core concept of succession law, which temporally aligns testamentary intention with the moment when a will is executed: see 2.19. This in turn avoids inquiry as to whether this intention has changed in the interim. 224. In the Estate of Masters (deceased) (1994) 33 NSWLR 446 at 469; BC9405178 per Priestley JA. 225. Hatsatouris v Hatsatouris [2001] NSWCA 408; BC200107669 at [59] per Powell JA, rejecting the obiter view of Hodgson J in Permanent Trustee Co Ltd v Milton (1996) 39 NSWLR 330 at 334–5; BC9505399 to the contrary. As to the statutory test for revocation or alteration of wills, see 5.1 (revocation), 5.42 (alteration). 226. So-called ‘stopgap wills’ also raise issues concerning whether a will is conditional: see 2.23–2.26. 227. See, for example, Permanent Trustee Co Ltd v Milton (1996) 39 NSWLR 330; BC9505399 (where Hodgson J found that two letters written by the testator to her solicitor purporting to change the beneficiaries of her properly executed will, which she did not act upon before her death 30 years later, could not be viewed as evincing an intention to alter her will); Re Lynch [2016] VSC 758; BC201610592 (where an informal document was prepared during a hospital admission and was not formalised into a will in the subsequent 8 years preceding the deceased’s death). 228. [2000] NSWSC 727; BC200004145. 229. Yazbek v Yazbek [2012] NSWSC 594; BC201203869 at [107] per Slattery J (another case where the court remained unconvinced that a testamentary document created prior to overseas travel was intended merely as an interim will, especially as the deceased made no attempt to alter the document upon his return: see at [103]–[109]). 230. ACT s 11A(2); NSW s 8(3); NT s 10(3); Qld s 18(3); Tas s 10(2); Vic s 9(3); WA s 32(3). See further P Vines, ‘The Quality and Proof of Intention in the Dispensing Powers: Lessons from a Short History’ (2002) 9 APLJ 264 at 277–9. 231. See, for example, Ryan v Kazacos (2001) 183 ALR 506; [2001] NSWSC 140; BC200100812 (where the evidence sought to be adduced had been secured through illegal means). 232. See, for example, In the Estate of Crossley (deceased) [1989] WAR 227; James v Burdekin (1990) 3 WAR 298. 233. P Vines, ‘The Quality and Proof of Intention in the Dispensing Powers: Lessons from a Short History’ (2002) 9 APLJ 264 at 279. 234. See Law Reform Commission of Western Australia, Wills: Substantial Compliance, Project No 76, Pt I, November 1985, pp 37–8.

235. 236. 237. 238. 239. 240.

241.

242.

243. 244. 245.

246. 247. 248. 249. 250. 251. 252. 253. 254. 255. 256. 257.

258. 259. 260.

261.

262. 263.

ACT s 11A(1); NSW s 8(2); NT s 10(2); Qld s 18(2); SA s 12(2); Vic s 9(2); WA s 32(2). Tas s 10(1) (which retains the phrase ‘beyond reasonable doubt’). In the Estate of Masters (deceased) (1994) 33 NSWLR 446 at 452 per Kirby P. See VLRC, 1994, p 70. See Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; BC3800027 per Dixon J. See Re Estate of Schwartzkopff (2006) 94 SASR 465; [2006] SASC 131; BC200603198 at [37] per Gray J; Fast v Rockman [2013] VSC 18; BC201300346 at [48] per Habersberger J; Rowe v Storer [2013] VSC 385; BC201311493 at [42] per McMillan J; Re Gregg (deceased) [2013] WASC 325; BC201303300 at [22] per Boyle R; P Vines, ‘The Quality and Proof of Intention in the Dispensing Powers: Lessons from a Short History’ (2002) 9 APLJ 264 at 280–1. Evidence Act 2011 (ACT) s 140(2); Evidence Act 1995 (NSW) s 140(2); Evidence (National Uniform Legislation) Act 2011 (NT) s 140(2); Evidence Act 2001 (Tas) s 140(2); Evidence Act 2008 (Vic) s 140(2); Smith v O’Neill [2014] NSWSC 1119; BC201406720 at [148] per Hallen J. The reason why the relevant provision preserved the validity of the will in this instance was that, at the time the Wills Act 1837 (UK) was enacted, interested witnesses were debarred from giving evidence. See generally D E C Yale, ‘Witnessing Wills and Losing Legacies’ (1984) 100 LQR 453. Wills Act 1837 (UK) s 15, as to which see Theobald, pp 209–13. See 4.57–4.60. See Re Royce’s Will Trusts [1959] Ch 626 at 633 per Lord Evershed MR (‘the object of these enactments was to protect a testator who was in extremis, or otherwise weak and not capable of exercising judgment, from being imposed upon by someone who came and presented him with a will for execution under which the person in question was himself substantially interested’). Re Royce’s Will Trusts [1959] Ch 626. (1881) 6 QBD 311. [1976] 1 NSWLR 14. [1936] Ch 520 at 527–8 per Clauson J. See 4.78. Re Young [1951] Ch 344. See 6.1–6.3. Anderson v Anderson (1872) LR 13 Eq 381 at 386–7 per Bacon VC; Re Trotter [1899] 1 Ch 764. Qld s 11(4)(b) (formerly s 15). Re Barber (1886) 31 Ch D 665 at 669–70 per Chitty J. Re Oberg [1952] QWN 38; Re Bunting (deceased) [1974] 2 NZLR 219. In the Estate of Bravda (deceased) [1968] 2 All ER 217 at 224–5 per Salmon LJ (‘The presumption is that any signature appearing on a will after that of the testator is presumed to be the signature of a witness to the will’). [1968] 2 All ER 217. In the Estate of Bravda (deceased) [1968] 2 All ER 217 at 224 per Russell LJ. In the Estate of Bravda (deceased) [1968] 2 All ER 217 at 225 per Salmon LJ. See also at 220–2 per Willmer LJ. Cf the statutory response to the Bravda decision stemming from the Wills Act 1968 (UK) s 1(1), as to which see Theobald, p 211. See, for example, In the Goods of Sharman (1869) LR 1 P & D 661; In the Goods of Smith (1889) LR 2 PD 2; Kitcat v King [1930] P 266; In the Will of Elms [1964–5] NSWR 286; Re the Will of Williams (SC(Tas), Wright J, 2 December 1986, unreported). See 4.58. QLRC, MP 29, p 18.

264. 265. 266. 267.

268. 269.

270. 271. 272. 273. 274. 275. 276. 277. 278. 279. 280. 281. 282. 283.

284.

285.

ACT s 15; SA s 17; Vic s 11 (as to the backdrop for this change, see VLRC, 1994, pp 82–97). As to the suspicious circumstances doctrine, see 2.29–2.38. As to the need for knowledge and approval, see 2.27, 2.28. The National Committee for Uniform Succession Laws noted that one of the arguments for repealing the interested witness rule was its ‘impediment to the development of a mature doctrine of suspicious circumstances surrounding the execution of a will’: QLRC, MP 29, p 20. The Committee, however, favoured retention of the rule but subject to the court’s jurisdiction to oust its effect in line with the (then) approach in New South Wales. NSW s 10(1), (2); NT s 12(1); Qld s 11(1), (2); Tas s 12(1). This formed one of the recommendations of the National Committee for Uniform Succession Laws: QLRC, MP 29, pp 23–4 (reasoning that the historical origins of the spousal disqualification — wherein husband and wife were once treated as one at law — no longer apply, and that for the disqualification to be logical, it should be extended so that a witness’s de facto partner is also disqualified; it did not favour the latter in view of the trend towards abolishing the rule altogether). NSW s 10(4)(b); Qld s 11(4)(b). NSW s 10(3)(a); NT s 12(2)(a); Qld s 11(3)(a); Tas s 12(2)(a). This formed a recommendation of the National Committee for Uniform Succession Laws: QLRC, MP 29, p 25. Re Estate of Chan (deceased) [2015] NSWSC 1107; BC201507395 at [6]–[24] per Lindsay J. As to the judicial dispensing power, see 4.30–4.52. NSW s 10(3)(b); NT s 12(2)(b); Qld s 11(3)(b); Tas s 12(2)(b). This formed a recommendation of the National Committee for Uniform Succession Laws: QLRC, MP 29, pp 24–5. NSW s 10(3)(c); NT s 12(2)(c); Qld s 11(3)(c); Tas ss 13, 14 (following a differently worded model but directed to the same basic objective). See generally Tonkiss v Graham [2002] NSWSC 891; BC200206010 at [66]–[104] per Campbell J. As to the concepts of ‘knowledge’ and ‘approval’, see 2.27, 2.28. Tonkiss v Graham [2002] NSWSC 891; BC200206010 at [104] per Campbell J. (2000) 50 NSWLR 81; [2000] NSWSC 767; BC200004324 (dealing with an earlier equivalent to the current New South Wales provision). Miller v Miller (2000) 50 NSWLR 81; [2000] NSWSC 767; BC200004324 at [25]. Miller v Miller (2000) 50 NSWLR 81; [2000] NSWSC 767; BC200004324 at [32]. Qld s 12(1), (2). Qld s 12(3). As to incorporation of part of a document see, for example, Re Burke [1991] 2 NZLR 312 at 322 per Williamson J. See, for example, Allen v Maddock (1858) 11 Moo PC 427; 14 ER 757 (where the testatrix drew up a paper as the ‘last Will and Testament of me, Anne Foot, of Bath, which I make and publish for all my worldly substance’, which both appointed executors and left several legacies, but was witnessed by only one person; 5 years later, on her deathbed, she duly executed a codicil, heading it, ‘This is a codicil of my last Will and Testament’ and leaving a disposition to her servant, which codicil was properly executed and attested; it was held that the 1851 paper was duly incorporated by reference into the later codicil). Singleton v Tomlison (1878) 3 App Cas 404 at 413–14 per Lord Cairns LC, at 425 per Lord Blackburn; In the Will of Beveridge (1905) 6 SR (NSW) 125 at 131 per Walker J; Re Karsten [1950] NZLR 1022 at 1024 per Gresson J; In the Will of Spears (deceased) [1959] VR 430; Re Burke [1991] 2 NZLR 312 at 317–18 per Williamson J; Prosper v Wojtowicz [2005] QSC 177; BC200504808 at [17] per Wilson J. See 4.79.

286. As to the dispensing power, see 4.30–4.52. 287. See, for example, NSW Trustee and Guardian v Halsey [2012] NSWSC 872; BC201205666 at [33]– [36] per White J. 288. See, for example, Singleton v Tomlison (1878) 3 App Cas 404. 289. Blackwell v Blackwell [1929] AC 318 at 339 per Viscount Sumner. 290. Stuart v Clemons [1951] Tas SR 23 at 28–9 per Morris CJ. 291. (1918) 34 TLR 256. 292. See, for example, Guest v Webb [1965] VR 427. As to the presumption of revocation, see 5.14. 293. Stuart v Clemons [1951] Tas SR 23 at 28–9 per Morris CJ (although on the facts the evidence was lacking). 294. As to the doctrine of republication, see 6.1–6.12. 295. In the Goods of Truro (1866) LR 1 P & D 201; In the Goods of Smart [1902] P 238. 296. Re Jones [1942] Ch 328; Prosper v Wojtowicz [2005] QSC 177; BC200504808 at [17]–[19] per Wilson J. 297. [1908] P 140. 298. In the Goods of Smart [1902] P 238. See also In the Goods of Gill (1869) LR 2 P & D 6 (the phrase, ‘according to the written directions left by me, and affixed to this my will’, which directions were not so affixed, held to be insufficient reference); Re the Will of Gorton (deceased) (1910) 29 NZLR 733 (reference in a will to ‘the ledger kept by me and known as the “Family Ledger”’ held, as a matter of ordinary grammar, to refer to the accounts that at the time of the testator’s death should appear in the ledger as opposed to the accounts existing at the date of the will; accordingly, the ledger could not be incorporated into the will). 299. Re Bateman’s Will Trusts [1970] 3 All ER 817. 300. In the Goods of Reid (1868) 19 LT 265. 301. Re Jones [1942] Ch 328. 302. Allen v Maddock (1858) 11 Moo PC 427; 14 ER 757; Re Pepperill (deceased) [1927] St R Qd 154 at 159–60 per Macnaughton J. 303. (1897) 7 QLJ 151. 304. Re Williams’ Will (1897) 7 QLJ 151 at 152 per Griffith CJ, with whom Cooper and Real JJ agreed. See, for example, Allen v Maddock (1858) 11 Moo PC 427; 14 ER 757; Re Burke [1991] 2 NZLR 312. 305. See generally P Critchley, ‘Instruments of Fraud, Testamentary Dispositions, and the Doctrine of Secret Trusts’ (1999) 115 LQR 631; D Kincaid, ‘The Tangled Web: The Relationship Between a Secret Trust and the Will’ [2000] Conv 420; G W Allan, ‘The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts Through Analysis of the Case Law’ (2011) 40 Common Law World Rev 311; D Yazdani, ‘Secret Trusts: An Ancient Doctine in Need of Reform?’ (2015) 23 APLJ 196. 306. As to ‘half-secret’ trusts, see 4.74, 4.75. 307. As to ‘fully secret’ trusts, see 4.72, 4.73. 308. As to these writing requirements, see Dal Pont, pp 559–66; Jacobs, Ch 7. 309. As to the wills formality requirements, see 4.1–4.20. 310. Blackwell v Blackwell [1929] AC 318 at 339 per Viscount Sumner. 311. Although these are commonly cited examples, their relatively infrequent appearance in the case law suggests that secret trusts operate in a (much) broader context: see G W Allan, ‘The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts Through Analysis of the Case Law’ (2011) 40 Common Law World Rev 311 at 340–1. 312. Cf E Challinor, ‘Debunking the Myth of Secret Trusts?’ [2005] Conv 492 (who argues that fraud

313. 314. 315.

316. 317.

318. 319. 320. 321. 322. 323. 324.

325. 326. 327. 328. 329.

330.

would be better prevented by insistence on compliance with the wills legislation formality requirements, which themselves are directed to reducing scope for fraud to be perpetrated). As to the requirements for a secret trust, see 4.71. Blackwell v Blackwell [1929] AC 318 at 334 per Viscount Sumner; Guest v Webb [1965] VR 427 at 432 per Starke J. Re Snowden [1979] Ch 528 at 537 per Megarry VC; Brown v Pourau [1995] 1 NZLR 352 at 369–71 per Hammond J; Howell v Hyde (2003) 47 ACSR 230; [2003] NSWSC 732; BC200304478 at [47] per Austin J. Although Megarry VC in Re Snowden at 537 suggested that a higher standard of proof may be required where there is an allegation of fraud, this does not seem to have been generally accepted: Voges v Monaghan (1954) 94 CLR 231 at 233; BC5400060 per Dixon CJ; Brown v Pourau at 369 (‘the cases show that what is required is a close traverse of the evidence and the quality of that evidence before a plaintiff can hope to successfully establish a secret trust’). See further C E F Rickett, ‘Secret Trust or Moral Obligation? — A Question of Evidence’ [1979] CLJ 260. See Dal Pont, Ch 17; Jacobs, Ch 5. Blackwell v Blackwell [1929] AC 318 at 334, 339–40 per Viscount Sumner; Voges v Monaghan (1954) 94 CLR 231 at 233 per Dixon CJ, at 235 per McTiernan J; BC5400060; Brown v Pourau [1995] 1 NZLR 352 at 367–9 per Hammond J. Re Cooper [1939] Ch 811 at 818 per Greene MR. See Dal Pont, p 535; Jacobs, pp 53–5. See Dal Pont, pp 948–9. Rowbotham v Dunnett (1878) 8 Ch D 430; Re Williams [1933] Ch 244; Ottaway v Norman [1972] Ch 698. As to disclaimer by a secret trustee, see 4.76. Re Stead [1900] 1 Ch 237 at 241 per Farwell LJ. This distinction has been criticised for lacking merit: see B Perrins, ‘Can You Keep Half a Secret?’ (1972) 88 LQR 225 at 226. See, for example, Howell v Hyde (2003) 47 ACSR 230; [2003] NSWSC 732; BC200304478 (evidence of five conversations and later confirmatory evidence held to substantiate a fully secret trust). Cf Brown v Willoughby (2012) 7 ASTLR 453; [2012] WASC 20; BC201200108 (where E M Heenan J refused to find a secret trust where the evidence adduced hardly proved compelling, remarking that ‘if there is nothing on the face of the will to indicate the existence of a secret trust and the disposition by a will is apparently of both the legal and beneficial ownership of the property which is the subject of the gift and there is no other evidence of secret trust, then the gift will operate as an unconditional absolute disposition to the named beneficiary’: at [43]). (1954) 94 CLR 231; BC5400060. Voges v Monaghan (1954) 94 CLR 231 at 252; BC5400060 per Fullagar and Kitto JJ. McTiernan and Webb JJ reached the same conclusion, whereas Dixon CJ dissented. McCormick v Grogan (1869) LR 4 HL 82 at 88–9 per Lord Hatherley LC, at 97 per Lord Westbury; Brown v Pourau [1995] 1 NZLR 352 at 366–7 per Hammond J. (1884) 26 Ch D 531. See, for example, Re Fleetwood (1880) 15 Ch D 594 (‘to be applied as I have requested him to do’); Blackwell v Blackwell [1929] AC 318 (‘for the purposes indicated by me to them’); Re Beckbessinger [1993] 2 NZLR 362 (‘to be held in accordance with a confidential memorandum which I have given to them’). Re Gardner [1920] 2 Ch 523; Re Keen [1937] Ch 236 at 247 per Lord Wright MR; Re Karsten (deceased) [1953] NZLR 456; Re Mihalopous (1956) 5 DLR (2d) 628; Guest v Webb [1965] VR 427 at 430 per Starke J.

331. Blackwell v Blackwell [1929] AC 318 at 339 per Viscount Sumner. See also Jankowski v Pelek Estate (1996) 131 DLR (4th) 717 at 730 per Huband JA (CA(Man)). 332. [1951] SASR 237. 333. See, for example, W S Holdsworth, ‘Secret Trusts’ (1937) 53 LQR 501; B Perrins, ‘Secret Trusts: The Key to the Dehors’ [1985] Conv 248. Cf D Wilde, ‘Secret and Semi-Secret Trusts: Justifying Distinctions Between the Two’ [1995] Conv 366 at 373–5; G W Allan, ‘The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts Through Analysis of the Case Law’ (2011) 40 Common Law World Rev 311 at 330–2. 334. (1997) 41 NSWLR 532; BC9701112. 335. Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532 at 538–40; BC9701112. There is authority in some other common law jurisdictions to the same effect: see, for example, Re Walsh (1911) 30 NZLR 1166 (where Williams J upheld the validity of a half-secret trust pursuant to ‘instructions to be given hereafter’); Re Browne [1944] IR 90. It also tallies with the approach in American law: see A W Scott, W F Fratcher and M L Ascher, Scott and Asher on Trusts, 5th ed, Aspen Publishers, New York, 2006, Vol 1, pp 365–6. 336. Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532 at 535–6; BC9701112 per Young J. 337. See Dal Pont, pp 648–52; Jacobs, pp 304–12. 338. Re Maddock [1902] 2 Ch 220 at 231 per Cozens-Hardy LJ. 339. Lim v Permanent Trustee Co Ltd (SC(NSW), McLelland J, 26 March 1981, unreported) at 8. 340. Cf J Glister, ‘Disclaimer and Secret Trusts’ [2014] Conv 11 (who argues that an intended trustee under a fully secret trust should not be permitted to disclaim). 341. See D Kincaid, ‘The Tangled Web: The Relationship Between a Secret Trust and the Will’ [2000] Conv 420 at 439–40. 342. For a discussion of the case law and arguments on both sides, see N Richardson, ‘Secret Trusts in New Zealand’ (1995) 6 Canta L Rev 108 at 110–14 (who ultimately favours the view that fully secret trusts are constructive whereas half-secret trusts are express); G W Allan, ‘The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts Through Analysis of the Case Law’ (2011) 40 Common Law World Rev 311 at 337–40 (who favours the view that all secret trusts are of the constructive variety). In Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 at 583; BC9804991 is found dicta that a secret trust is a ‘species’ of constructive trust on the ground that it may apply to cases where the intent of a settlor or testator would fail for want of compliance with the formalities for creation of an inter vivos express trust. It is unclear what the Full Court had in mind in this regard, for secret trusts are almost invariably testamentary trusts, and so operate outside the said formality requirements and, though intended to operate in a testamentary fashion, operate outside the will and so are not subject to the formalities prescribed by the wills legislation: see 4.78. 343. See G W Allan, ‘The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts Through Analysis of the Case Law’ (2011) 40 Common Law World Rev 311 at 314–28. 344. [1995] 1 NZLR 352 at 368. 345. See C E F Rickett, ‘Thoughts on Secret Trusts from New Zealand’ [1996] Conv 302 at 305. 346. See M Cope, Constructive Trusts, Law Book Co, Sydney, 1992, p 524. 347. See the discussion in G W Allan, ‘The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts Through Analysis of the Case Law’ (2011) 40 Common Law World Rev 311 at 332–6. Dehors derives from the French, meaning ‘out of’ or ‘foreign to’. 348. Blackwell v Blackwell [1929] AC 318 at 339–40 per Viscount Sumner; Re Snowden (deceased) [1979] Ch 528 at 535 per Megarry VC; Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532 at

536–7; BC9701112 per Young J. 349. Re Young [1951] Ch 344 at 350–1 per Danckwerts J; Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532 at 536–7; BC9701112 per Young J. Cf D Kincaid, ‘The Tangled Web: The Relationship Between a Secret Trust and the Will’ [2000] Conv 420 at 424–5. Statute has long recognised that beneficiaries of a will who attest the will forfeit their interest (although there are nowadays various exceptions to this rule): see 4.53–4.60. 350. D Kincaid, ‘The Tangled Web: The Relationship Between a Secret Trust and the Will’ [2000] Conv 420 at 426–7. A trust that has been constituted cannot be revoked except pursuant to an express power of revocation in the trust instrument itself: see Dal Pont, pp 771–2. Cf M Pawlowski and J Brown, ‘Constituting a Secret Trust by Estoppel’ [2003] Conv 388 (who raise the prospect of an intended beneficiary precluding the revocation of a secret trust prior to its complete constitution by raising an estoppel; they suggest that in such a case the relevant property should, at the time of the departure from the promise, vest in the secret trustee on trust for the testator for life with remainder to the secret trustee absolutely, but do not address the prospect of this undermining the ‘secret’ aspect of the trust). 351. D Kincaid, ‘The Tangled Web: The Relationship Between a Secret Trust and the Will’ [2000] Conv 420 at 434–9. 352. Re Huxtable [1902] 2 Ch 793; Re Keen [1937] Ch 236; Re Spence [1949] WN 237; Re Rees [1950] Ch 204. 353. [1953] NZLR 456. 354. This requirement prevents a testator supplementing his or her will by later informal codicils. 355. See 4.61–4.67.

[page 140]

CHAPTER 5

Revocation and Amendment of Wills Manner of Revocation

5.1

Voluntary Revocation Revocation by another will or codicil Express revocation Implied revocation Revocation by writing declaring an intention to revoke Revocation by actual destruction The act of destruction Intention to destroy Presumption of revocation in cases of lost wills Revocation by dealing with a will Dependent relative revocation Nature of the doctrine Revival Execution of a new will or codicil New will already made but not properly executed Mistake

5.3 5.3 5.3 5.6 5.8 5.9 5.10 5.12 5.14 5.15 5.16 5.16 5.17 5.19 5.20 5.21

Revocation by Marriage General rule and its rationale Exception to general rule — wills in contemplation of marriage Australian Capital Territory and South Australia Other jurisdictions except Western Australia Western Australia Exception to general rule — powers of appointment

5.23 5.23 5.25 5.26 5.31 5.32 5.33

Exception to general rule — executors and trustees

5.34

Revocation by Termination of Marriage General rule and its rationale New South Wales, the Northern Territory, Queensland, Tasmania and Victoria Australian Capital Territory and South Australia Western Australia

5.35 5.35

Amendment of Wills Alterations Presumption as to time of alteration

5.42 5.43 5.43

5.36 5.39 5.41

[page 141] Alteration duly executed Obliterations Part of the will not ‘apparent’ Impact of dependent relative revocation and judicial dispensing powers

5.46 5.48 5.48 5.50

Manner of Revocation 5.1 A fundamental characteristic of a will is that it may always be revoked.1 That a testator has contracted with a person not to revoke his or her will is irrelevant to a court of probate, although a breach of that contract may be amenable to action against the testator (or the estate) in other proceedings.2 Revocation may be effected voluntarily or by operation of law. Voluntary revocation requires an expression of intention to revoke by a testator with the necessary capacity.3 Under the wills legislation, it can occur via the following means:4 • by another will or codicil executed in the same manner as required for the making of a will; • by writing declaring an intention to revoke, executed in the same manner as required for the making of a will;

• by destruction, via burning, tearing or otherwise destroying; or • other than in the Australian Capital Territory, South Australia and Western Australia, by writing on the will or dealing with it in such a manner that the court is satisfied that the testator intended to revoke it. Revocation by operation of law, by definition, is not premised on any expression of an intention to revoke. It is effected by the testator’s marriage,5 or the termination of the testator’s marriage.6 Each of these forms of revocation is addressed in turn below. 5.2 The New South Wales, South Australian and Tasmanian legislation, following its English antecedent,7 adds that ‘no will shall be revoked by any presumption of an intention on the ground of an alteration of circumstances’.8 This provision, in its original iteration, was designed to oust the common law’s inclination to countenance revocation consisting of a change of circumstances, specifically where the testator had married, or had alienated the subject matter of a gift in the will.9 Marriage is now dealt with by specific statutory provision, and alienation is addressed by the doctrine of lapse.10 It is therefore otiose, but does highlight that no will may be revoked apart from the methods set out above, an outcome that in any case necessarily ensues from the statutory language in those jurisdictions and elsewhere.11 [page 142]

Voluntary Revocation Revocation by another will or codicil Express revocation 5.3 As a general principle, an express revocation clause in a will, subject to its terms, serves to revoke all prior testamentary dispositions or acts. It indicates in unambiguous language that the testator has now revoked all prior wills and codicils. A revocation clause should be included in any professionally drawn will, if that is the testator’s intention, and may be absolute or confined to part of a prior testamentary disposition, say, the revocation of a codicil. Any

form of words may be used to revoke expressly, but animus revocandi — an intention to revoke — must be shown, and the words used should be unambiguous.12 Words that are no more than provisional or tentative will not suffice.13 The existence of a revocation clause is prima facie evidence of the testator’s intention, and to this end the law presumes an intention to revoke prior wills according to its terms. But this presumption may be rebutted by clear and unequivocal evidence to the contrary. Early nineteenth-century judges opined that ‘the animus testandi and the animus revocandi are completely open to investigation in this Court’14 and that ‘probate of a paper may be granted of a date prior to a will with a revocatory clause, provided the Court is satisfied that it was not the deceased’s intention to revoke that particular legacy or benefit’.15 The twentieth century witnessed an ostensibly more rigid approach to rebuttal in this context, an English judge opining that ‘the burden must be heavy’ upon anyone who asserts that a clear and unambiguous revocation clause is not intended to have a revocatory effect.16 The appropriate balance appears from the following remarks of Helsham J in In the Will of Page:17 The fact that a deceased says in the document which he executes as a will that it is to constitute the whole of his testamentary dispositions to the exclusion of any other instruments (for example by describing it as his will and by including a revocation clause) is a factor which bears upon the proof of whether he intended it to contain the whole of his testamentary dispositions. Normally it is cogent evidence from which the factum of intention can be inferred and will operate to displace other evidence of intention, or at least to outweigh it, for a court will place great weight upon what a deceased person has said in his own formal legal document as to what his intention was in executing it; it is normally the best evidence from which his intention can be inferred. But it is not necessarily conclusive proof of a deceased’s intention. If it is established by evidence that a particular instrument was not intended by a deceased to contain the whole of his testamentary dispositions, then notwithstanding that the instrument itself has words in it from which it might be inferred that the deceased did so intend, these words will not be allowed to prevail in some cases so as to defeat the true intention. Such cases occur when it can be shown that the words in it do not reflect the deceased’s intention at all or only reflect that intention conditionally upon

[page 143] some other event happening. Cases of mistake are instances of the former and cases of dependent relative revocation are instances of the latter type of situation.

Statements of the testator may be admissible as evidence of intention,

including statements made both at the time of will-making and thereafter.18 The foregoing assumes that the will has yet to be admitted to probate; once it is admitted to probate, the court’s role is limited to one of construction,19 and so the inquiry as to the testator’s intentions is ‘pretty closely restricted to the contents of the instrument itself’.20 5.4 The most obvious scenario where a revocation clause may not reflect the testator’s true intentions is where there is compelling evidence that it was inserted by mistake. An example is Re Luck (deceased).21 There, the testator executed a will in which he bequeathed his entire estate to his sister. At the time, he held no real estate, but subsequently he acquired a parcel of land. He then made another will, containing a general revocation clause but leaving only his real estate to his sister. Burt J, in deleting the revocation clause from the second will, stated the general principle as follows:22 The question … is not whether by the second will the testator intended to revoke the first will conditionally, but whether he intended to revoke the first will at all, and upon that question the presence of the revocation clause as it appears in the second will although, as has been said, it is a ‘grave and weighty circumstance’ bearing upon intention it is not decisive. The question is one of testamentary intention and that is not necessarily to be found within the will. If upon a consideration of the terms of and of the form of and of the effect of the second will which contains the revocation clause and upon a consideration of the facts and circumstances outside that document, including statements made by the testator bearing upon his intention, it should clearly appear that the testator did not intend by his second will to revoke the first will then a court of probate can give effect to that intention by omitting the revocation clause from the grant …

On the facts, his Honour concluded that it was ‘well-nigh certain’ that the testator, by executing his second will, had no intention of revoking the first will. 5.5 Another prominent case of mistake is where a testator who owns property in two or more different countries purports to dispose by will of property in one country, and then in a second will, which contains a general revocation clause, purports to dispose by will of property in the other country. In this event, it is open to a court to give no effect to the revocation clause as far as the property in the first country is concerned23 (subject to the principles of private international law24 where these legally affect the matter). In In the Matter of Barker (deceased),25 for example, the testator left an estate comprising personal property in both Australia and Europe, and real property in Australia.

She made a will prepared by an Australian lawyer, and then made a second will in Germany containing a general revocation clause. Extrinsic evidence, including statements made to her Australian solicitor, led Tagdell J to infer that the testator had no intention when making the German will to revoke the Australian will, and that each was intended to be self-contained and have its own sphere of operation. This meant [page 144] that the Australian will was intended to deal only with Australian assets and the German will only with German assets. Probate was accordingly granted of the Australian will. A second instance where a revocation clause may be given either no effect or more limited effect, identified by Helsham J in In the Will of Page26 above, is where the doctrine of dependent relative revocation applies.27

Implied revocation 5.6 Absent an express revocation clause, where inconsistent testamentary instruments exist, the general rule, and one of construction, is that the later instrument revokes the former to the extent of the inconsistency.28 If the testamentary instruments are completely inconsistent, the entirety of the earlier will is impliedly revoked by the latter.29 Otherwise, the question is whether the testator intended the later instrument to replace the earlier or merely to supplement it. That the later instrument disposes of the entirety of the deceased’s estate likely speaks of an intention to replace,30 especially when prefaced by words such as ‘this is my last will’.31 Even if the later will does not cover the entire subject matter of the earlier will, a court may find that it was the testator’s intention that the later will should completely supersede the earlier.32 But if it is possible for ostensibly inconsistent instruments to be read together, at least partly, each may be admitted to probate.33 As explained by Romer LJ in Townsend v Moore:34 … it would have been lamentable if the Court had been compelled to hold that, because effect cannot be given to some parts of the two documents, therefore both must be set aside, and neither of them admitted to probate, or allowed to have any validity whatever. Both documents,

then, should be admitted to probate, and the effect of the two together must be determined by a consideration of their contents, and of the circumstances under which they were executed. So far as they can stand together effect should be given to them both.

The foregoing aligns with what is sometimes described as the ‘presumption against implied revocation’,35 and with the rule of construction that codicils are construed so as to interfere as little as possible with the will itself, so that a prior will is to be held inconsistent only to the extent absolutely necessary to give effect to the codicil.36 On the same reasoning, if there are two testamentary instruments of the same date, or both are undated, and they are not inconsistent, [page 145] the court will, if possible, construe them so they can stand together.37 But in this event, if they are so inconsistent as to be unable to stand together, and each has a revocation clause, both must necessarily fail.38 Ultimately, though a question of construction, as the central issue is one of construing the testator’s intention, oral and extrinsic evidence is admissible for this purpose.39 5.7 As a general principle, the onus of proving revocation lies ‘upon those who claim under such revocation’.40 It has been said, to this end, that ‘a party who asserts that a valid will has been revoked by a later testamentary instrument has the onus of proving the validity of the later instrument subject only to this, that the onus of establishing duress or undue influence as to either instrument lies on those who assert it’.41 This must be read subject to the raising of a suspicious circumstance allegation, which those seeking probate carry the onus of dispelling.42

Revocation by writing declaring an intention to revoke 5.8 The wills legislation makes it clear that the instrument that revokes a testamentary disposition need not be another will or codicil.43 Any writing declaring an intention to revoke will suffice, provided it is executed with the same formalities that are prescribed for the making of wills. In In the Goods of Fraser44 the testator executed a will in 1866, but in 1869 wrote at the foot of

the will the following memorandum: Florence, October 19th 1869. This will was cancelled this day, in the presence of Dr Roderick Fraser, physician, and Margaret Riley, nurse, who witnessed the signature of Thomas Fraser Esq, both being present and signed it as witnesses.

The memorandum was held to have revoked the will upon which it was written. Similarly, a duly attested letter requesting destruction of a will may revoke the will, provided that the testator intended the will to be revoked thereby, and not by the later act of destruction.45 The relevant writing or memorandum need not evince an intention to revoke an earlier will completely; its terms may target only part of that will.46

Revocation by actual destruction 5.9 The wills legislation envisages that revocation can be effected by the testator, or by a person in his or her presence and by his or her direction, ‘burning, tearing or otherwise destroying the will’ with the intention of revoking it.47 Two distinct elements are thus required — the act of destruction and the intention to revoke — both of which must be present for an effective revocation.48 [page 146]

The act of destruction 5.10 The authorities support a number of propositions on the meaning of the act of destruction. First, the will need not be totally destroyed, although normally this is so if the will is burnt. There must, however, be some actual burning, tearing or other destruction, in which case a presumption arises that the act was done animo revocandi.49 The presumption can be rebutted, but this requires clear and satisfactory evidence. The cutting or tearing off of signatures of the testator or the witnesses, or both, raises the presumption,50 as does a complete scratching out of a signature provided it thereby becomes illegible.51 Second, the destruction that has occurred must be the completed act; it must be all that the testator intended to do by way of destruction.52

Third, the statutory phrase ‘otherwise destroying’ is construed ejusdem generis with the words ‘burning’ and ‘tearing’.53 Some actual violence must be done to the will, such as cutting or scratching out. Minor crossings or marks will not ordinarily suffice,54 and nor will a symbolic destruction. In Cheese v Lovejoy55 the testator drew his pen through some lines of his will, wrote on the back of it ‘all these are revoked’ and threw it amongst a heap of waste paper on the floor of the sitting room. He told the housemaid that the will was good for nothing. The maid retrieved the will and left it lying about the house in various locations. The English Court of Appeal held that there had been no revocation by destruction as the acts of the testator were symbolic. On similar reasoning, ordinarily drawing a line through a signature is not a sufficient act,56 and nor is a mere crossing out with a pen.57 Fourth, a will may be partially revoked by destruction, leaving the remainder effective. In In the Goods of Woodward58 the testator made a will consisting of seven pages. The first eight lines had been cut and torn off, but in other respects the will was complete. Lord Penzance admitted the will to probate with the excised pieces omitted. If, therefore, the testator destroys a nonessential part of the will, so that what is left is intelligible and workable, the part remaining stands. This may occur, say, if a legacy or the appointment of executors is excised, but other operative parts remain.59 The position is different if those remaining parts are ‘practically unintelligible and unworkable as a testamentary document in the absence of the [those] destroyed’.60 At the same time, though ‘there is no such thing as presumptive revocation [page 147] of a codicil by the destruction of the will’,61 this will be the outcome if the codicil cannot stand alone or evidence reveals the testator’s intention as otherwise to revoke.62 5.11 The statutory provisions require that the act of destruction be carried out by either the testator, or by another person in the testator’s presence and at the testator’s direction. ‘Presence’ here takes the same meaning as in the context of the execution of wills.63 In In the Goods of Dadds (deceased),64 for

example, the testator advised her neighbour and her executor that she wished to revoke a codicil to her will. As the neighbour and executor opted to burn the instrument in the kitchen, out of the testator’s sight, the ‘presence’ requirement was not satisfied.

Intention to destroy 5.12 The act of destruction and the intention to destroy must be contemporaneous. This means, for instance, that destruction of a will by a third party without the testator’s knowledge and consent does not revoke it. In Gill v Gill,65 as the testator’s will had been torn up without his authority, he could not, by any subsequent ratification of the destruction, render the act a valid revocation of the will. If the testator desired that the act of destruction should prevail, noted Bargrave Deane J, ‘he had it in his power effectually to revoke his will in accordance with the provisions of the Wills Act’.66 5.13 The same standard of mental capacity is required for revocation by destruction as for the making of a valid will.67 Mental illness may therefore prevent effective revocation. Similarly, a will destroyed by accident68 is not revoked, and a will destroyed by mistake, even if the mistake relates to the legal consequences of the action, may not result in revocation.69 Wills destroyed by mistake are, in any case, generally treated as coming within the category of dependent relative revocation.70

Presumption of revocation in cases of lost wills 5.14 As a matter of evidence, the law presumes that, if a will was last known to be in the testator’s possession but cannot be found when that testator dies, the testator has destroyed it with the intention of revoking it.71 The presumption is rebuttable by evidence of the testator’s intention to support the validity of the will, which in this event must take its form from either a copy of the will or otherwise by parol evidence of its contents.72

Revocation by dealing with a will 5.15 In New South Wales, the Northern Territory, Queensland, Tasmania and Victoria the wills legislation makes provision for revocation of a will by the

testator, or by some person in his or her presence and at his or her direction, ‘writing on the will or dealing with the will in such a manner that the court is satisfied from the state of the will that the testator intended [page 148] to revoke it’.73 The court must be satisfied ‘from the state of the will’ that there has been a revocation. There is no scope, it has been observed, ‘for considering the evidence dehors the will of intention to revoke’.74 But there is no other limitation on the provision. It was designed to cover symbolic acts that would have fallen outside the traditional concept of destruction,75 and so, it appears, writing of the word ‘cancelled’ or similar expression would likely suffice.

Dependent relative revocation Nature of the doctrine 5.16 The doctrine of dependent relative revocation76 targets a form of conditional revocation. It raises a presumption against revocation of a will that the testator destroys with the present intention of making a replacement will, if it transpires that the replacement will is not made or is otherwise invalid. In other words, the revocation of the former will is, in circumstances where the presumption applies, conditional on the making of a new valid will. It gives effect to the testator’s conditional intention, and supposes that, if the condition is not met, the testator in destroying the will lacked animus revocandi. A leading judicial statement in this regard is that of Atkin LJ in In the Estate of Southerden:77 There has been brought into existence in recent years a doctrine which has been described as ‘dependent relative revocation’. The question in each case is, had the testator the intention of revoking his will? The intention may be conditional, and if the revocation is subject to a condition which is not fulfilled, the revocation does not take effect. Cases of dependent relative revocation are mostly cases where the testator has supposed that if he destroyed his will his property would pass under some other document. But the condition is not necessarily limited to the existence of some other document. The revocation may be conditional on the existence or future existence of some fact. If that is proved full effect can be given to the [wills legislation]. You must prove that there was in fact a condition. It is a question of fact in each case.

As there are a wide variety of matters that may make revocation conditional, to formulate a rule applicable to all cases is unrealistic. The main scenarios in which the doctrine has been successfully applied, though, are catalogued below.

Revival 5.17 If a testator has executed two wills, and the second revokes the first, a later revocation of the second does not revive the first,78 and the testator thus dies intestate. Yet many testators have mistakenly believed that revival will occur in these circumstances, and the doctrine of dependent relative revocation may operate to prevent the revocation of the second will. To do so, it must be proved that the testator would not have intended to revoke the later will had he or she been aware that revival of the earlier will could not legally take place. For example, in Re Lindrea (deceased)79 the testator made a will in 1947, leaving his property to his wife for life and after her death to his four children in equal shares. In 1948 he executed another will, which revoked the 1947 will, in which he left all his property to his wife [page 149] absolutely. He later changed his mind, evidently because of his wife’s intemperate habits, and destroyed the 1948 will, on the mistaken assumption that the first will would then be revived. Dean J found that the sole purpose of revoking the later will was to set up the earlier one. There was thus a conditional revocation only, not a true animus revocandi, and upon failure of the condition (namely the revival of the earlier will) the second will remained unrevoked. 5.18 However, if the testator’s intention to revive an earlier (revoked) will is not the sole reason why he or she destroys a later will, the doctrine of dependent relative revocation cannot apply. This is because the doctrine requires proof that the testator ‘would not have revoked except for the purpose of reviving the previous will’, and so in In the Estate of Niven,80 where Harvey J

found that the testator’s intention in revoking was partly to cut out his brother from claiming, the doctrine did not apply.

Execution of a new will or codicil 5.19 If an existing will is destroyed, and it is proved that the destruction was done on the condition that a new will would be made, which condition is not met, the dependent relative revocation doctrine may operate to prevent the revocation of the destroyed will.81 Evidence of intention is crucial here, as the testator may have intended to destroy the old will in any event, in which case the intention to revoke is absolute as opposed to conditional. For this purpose, ‘a mere intention to make a new will, however clearly shown, is not enough of itself … to make the revocation conditional’.82 Nor does the fact that the testator destroyed his or her will and at the same time intended to make a new one by itself dictate an intention that the revocation be conditional on the making of a new will.83 More is required to substantiate the requisite intention. In Re Jones (deceased),84 for example, in 1965 the testator made a will leaving substantial benefits to her two nieces. In 1970 she disclosed to her bank manager an intention to make a new will leaving the benefits to her nephew’s children. She mutilated the 1965 will, sought a solicitor to make the new will, but died before the solicitor could see her. The English Court of Appeal found that the testator intended to revoke the 1965 will absolutely, not conditionally on a new will being made, and so no dependent relative revocation arose. The relevant facts, according to Roskill LJ, when taken together suggested as a matter of probability that ‘in her mind the efficacy of the mutilation was not to depend on the subsequent execution of a new will but was designed to ensure forthwith that at least the plaintiff and her sister should not get the smallholding’.85 Goff LJ added that ‘there is no evidence that the testatrix had a belief that it is necessary to revoke an existing will before one can make a new one’.86

New will already made but not properly executed 5.20 Similar principles apply if the testator has made a new will, but it is not yet properly executed. If the testator destroys the old will, and his or her

intention in doing so was conditional upon the execution of the new will, the old will is not revoked. In In the Will of Broomhead,87 for example, the testator made a will under which his sisters were the main beneficiaries. After the death of one sister, he took the will from his solicitors’ custody. A second sister then died, and shortly before his death the testator wrote to his surviving sister indicating that he had made a will under which she would take half the estate. On his death the original will could not [page 150] be found, but a document, apparently made after the second sister’s death, in the form of a will signed by the testator but unattested was found amongst his effects. This led Herring CJ to infer that the testator had destroyed his will in the (mistaken) belief that he had executed a later valid will.88 Probate was therefore granted of the destroyed will via the doctrine of dependent relative revocation. Today, though, such a case would likely be decided under the judicial dispensing power,89 which in circumstances of this kind would have operated to validate the second ‘will’.90

Mistake 5.21 A common kind of mistake is where the testator believes, incorrectly, that by destroying the will his or her property will pass upon death in a certain manner. In the leading case, In the Estate of Southerden,91 the testator made a will, leaving his estate to his wife, shortly before they made a voyage to America. Upon their safe return, he took up the will and said to his wife: ‘This is no good now; we have returned safely and it is all yours. We might as well burn it’. The will was burnt, the testator being of the mistaken impression that the wife would take all his assets under the intestacy rules. The English law on intestacy, as it then stood, meant that the wife was not solely entitled. The true inference of fact, said Atkin LJ, was that ‘when the testator destroyed his will in the presence of his wife he did it on the condition that she would take the whole of the property’, and as the condition was not fulfilled, the revocation was not operative.92

5.22 The operative mistake in cases of this kind is not limited, as in Southerden, to mistakes of law. In appropriate circumstances it may encompass mistakes of fact. In the old case of Campbell v French,93 for instance, the testator gave legacies to A and B, describing them as C’s grandchildren, and their residence as America. Via a codicil he later revoked these legacies in the mistaken belief that A and B had died. Lord Loughborough LC ruled that, upon evidence that the beneficiaries were still alive, the legacies had not been revoked by the codicil.94

Revocation by Marriage General rule and its rationale 5.23 The wills statutes in all Australian jurisdictions, following the seminal English statutory precedent,95 state that a will is revoked by the testator’s marriage.96 Revocation by marriage occurs by operation of law, and so is independent of the testator’s intention. The statutes do, however, recognise exceptions to this rule: wills made in contemplation of marriage; wills made in the exercise of powers of appointment; and, in most jurisdictions, the appointment as executor etc of the person to whom the testator is married at the time of his or her death. Each is discussed in turn below.97 In the Australian Capital Territory and Queensland the legislation extends the revocatory effect of prior wills to entry into a civil partnership.98 In Tasmania the same ensues upon the [page 151] registration of a deed of relationship.99 Again, the same exceptions apply. What follows under this heading is reference to ‘marriage’ as encompassing, in these jurisdictions, those partnerships and relationships. 5.24 The rule is justified, it is said, because ‘[t]o maintain a will made before marriage may result in injustice to children, or even to the wife herself’, it being ‘reasonable to suppose that their claims are properly protected and

adjusted by the law as to intestacy’.100 In other words, by revoking old wills, which would otherwise have survived the marriage, the possibility of members of the testator’s family not being provided for, through inadvertence, is lessened. And if the testator does not make a new will after the marriage, the rules relating to intestacy make adequate provision.101 Implicit in the general rule, in any case, is the assumption that marriage imposes new and fundamental responsibilities on a person that are likely to make inappropriate the terms of his or her earlier will. Of course, this assumes that the marriage is valid; a void marriage has no revocatory effect.102

Exception to general rule — wills in contemplation of marriage 5.25 The major exception to the general rule relates to wills made in contemplation of marriage, which are not revoked by the marriage contemplated. In its original iteration103 the wills legislation required that the will be expressly made, by its terms, in contemplation of marriage to come within the exception. This remains so in the Australian Capital Territory and South Australia, and for wills made prior to the relevant dates in the remaining jurisdictions.104 In those other jurisdictions, for wills made after the relevant dates, a more lenient statutory regime, prompted by uniform succession law reform recommendations,105 now applies. The position in each jurisdiction is discussed below.

Australian Capital Territory and South Australia 5.26 The Australian Capital Territory and South Australian provisions adopt the words ‘expressed to be made in contemplation of marriage’.106 The case law interpreting this phrase reveals the following. First, a statement in a will expressing contemplation of marriage generally does not trigger the exception.107 What is required is contemplation of the particular marriage that is later solemnised. So testamentary phrases such as ‘this will is made in contemplation of marriage’108 and ‘should I marry prior to my death’109 have been held not to preclude revocation. Second, there are, however, cases where the testator has used terminology in the will that indicates a possible marriage,

say, referring to ‘my future wife (or husband)’ or ‘my fiancée’, which have been held to express the requisite contemplation.110 [page 152] 5.27 Third, difficulties surface where a testator has bequeathed the estate to ‘my wife’ or ‘my husband’ but had not married when the will was made. The difficulty stems from the fact that the legislation requires that the will itself be expressed to be made in contemplation of the marriage, thereby rendering extrinsic evidence of the testator’s intention inadmissible. In Re Taylor (deceased)111 the testator’s will left his entire estate to ‘my wife Alice Jane Louisa Maud Taylor’. He was living with one Alice DeLittle at the time, and married her 2 years later. O’Bryan J ruled that the will had been revoked by the marriage, reasoning as follows:112 Can it be said that because he described her as ‘my wife’ and gives her his name ‘Taylor’ that he was giving expression to his contemplation of marrying her? It is with regret that I answer that question, no. I can read no more into this description of her than that was how he regarded her — as his wife, Mrs Taylor; not that he was making his will in contemplation of marrying her.

In other words, the words ‘my wife’ or ‘my husband’ were regarded simply as a description of the person to actually take the benefit under the will, and not indicative of an expression of contemplation of marriage. His Honour conceded that, had he been at liberty to go outside the will, he would have found extrinsic evidence that at the time of the execution the testator did intend to marry her. He also conceded that it is a ‘strange result of his marrying her … that he should invalidate the will he had made in her favour’, as this ‘was the last thing I should imagine that he wanted’.113 5.28 Fourth, it should not be surprising, as a result, that courts have since exhibited some creativity in allowing the admission of extrinsic evidence. In In the Will of Foss,114 for example, the testator described his fiancée in his will as ‘my wife, Mrs P Foss’, and married her a few days after executing the will. In upholding the will, Helsham J pointed out that, whilst it was not permissible to examine extrinsic evidence of the testator’s intention to show that the will was made in contemplation of marriage, it was permissible, as a court of construction, to admit extrinsic evidence of the surrounding circumstances

when the will was made.115 What followed was that, if the will contained some indication of the possibility of it having been made in specific contemplation of a marriage that has taken place, however ambiguous, evidence could be admitted to assist in construing the ambiguity, that is, to see if it expressed the requisite contemplation of marriage. Words such as ‘my fiancée’ and ‘my wife (or husband)’ placed the court on inquiry as to the relevant surrounding circumstances. The facts in Foss indicated that the testator’s words referred to his intended wife, and were not merely descriptive. A similar outcome ensued in Layer v Burns Philp Trustee Co Ltd,116 where a legacy was left to ‘my wife Gail Layer’. The parties married immediately after execution of the will, in the hospital in which the testator was terminally ill. The New South Wales Court of Appeal found that the surrounding circumstances supported construing the words used as a gift to ‘my intended wife’, and thus in contemplation of the marriage. As explained by Mahoney JA, with whom Samuels and Priestley JJA agreed:117 … it is proper to conclude from the evidence to which the court may have regard that the deceased did not describe the appellant as ‘my wife’ because he had the habit or disposition of so describing her … And, given the circumstances, the inference is that the deceased saw the word as appropriate to describe her because he was on the point of marriage to her.

[page 153] But even on this more yielding approach, unless the language used displays some indication of the possibility of the will having been made in specific contemplation of the marriage that took place, marriage will effect its revocation.118 5.29 Fifth, another issue is whether the will as a whole, not merely parts of it, must be expressed as made in contemplation of marriage. According to English authority, merely because parts of a will show a sufficient contemplation of marriage is not enough to save the entire will unless those parts amount substantially to the entire beneficial dispositions made by the will.119 Yet it appears a different approach applies in Australia. In Layer v Burns Philp Trustee Co Ltd,120 introduced above, the gift in favour of the wife amounted to $50,000, which was less than five per cent of the testator’s estate. The New

South Wales Court of Appeal nonetheless held that the will, including its bequests to the testator’s children, was made in contemplation of marriage. It was not necessary, for this purpose, to show that the will was made because of marriage. 5.30 Sixth, the phrase ‘contemplation of marriage’ has been defined to mean ‘intending, proposing or expecting a marriage, or having a marriage in mind as a contingency to be provided for or as an end to be aimed at’.121 It is not essential here that the deceased have intended or understood that the contemplation of a particular marriage preserves the will from revocation should that marriage ensue.122 No causal connection is required between the making of the will and the proposal to marry; it is enough that the testator contemplates the marriage that is later solemnised.123 Moreover, in speaking of a will that is ‘made in’ contemplation of marriage, the statutory language does not explicitly require a contemporaneity of that contemplation with the execution of the will. As explained by Dixon J in Steel v Ifrah:124 The word ‘made’ in the relevant statutory context refers to the entire process of making a will. Contemplation of a marriage when deciding on the terms of the will … produces a will that is made in contemplation of a marriage, even if there is no basis to conclude that the marriage was consciously in mind at the time of execution of the will. Equally, a will is made in contemplation of a marriage where the marriage was consciously in mind at the time of execution of the will, but there is no basis to conclude that the marriage was consciously in mind at earlier times in the process. Further, it is not consistent with the statutory purpose to encrust the concept of ‘made in’ with limitations on the process of will making by concentrating on any specific event in that process.

What the legislation requires, said his Honour, is contemplation of marriage during the will-making process, and not necessarily a continuously conscious contemplation, or a contemplation that is evident at the time of execution of the will.125 Indeed, the time of execution may be less significant, because it may be regarded by the testator as a formality; rather, those moments when the testator first formulates his or her instructions, or changes them, after receiving advice from a solicitor, may more relevantly relate to the purpose of having regard to contemplation of a marriage.126 [page 154]

Other jurisdictions except Western Australia 5.31 The provisions in the other jurisdictions except Western Australia exhibit three noteworthy features that address difficulties caused by the former provisions. First, they state that a disposition made to the person to whom the testator is married at the time of his or her death is not revoked by the marriage.127 If, for example, the testator makes a will in 2005 giving his estate to Jane Doe and later marries Jane, the disposition to Jane is not revoked by the marriage. The same applies even if the gift comprises only part of the estate, say, a legacy of $100,000. In this event, the will is revoked but the disposition to Jane is saved, so that the balance of the estate falls to be administered under the intestacy rules. The foregoing avoids the problems, discussed above, as to whether the expressions ‘my fiancée’ or ‘my wife’ sufficiently express contemplation of marriage. Second, the legislation states that a will made in contemplation of marriage is not revoked by the marriage, whether or not that contemplation is expressed in the will.128 Accordingly, the contemplation of marriage need not be expressed in the will, but may be established by extrinsic evidence of the testator’s intention. This obviates resort to the Foss approach, noted above,129 as a back door to admitting extrinsic evidence. In Steel v Ifrah,130 for example, the testatrix, who had children to a former husband, made a new will to provide for her children ahead of her marriage to the defendant. Dixon J held that the will was made in contemplation of marriage, despite making no express reference to this. His Honour reasoned that, by the time the testatrix saw her solicitor, she had formulated how her estate would be distributed ‘and the probable reason she did so was to protect her children’s entitlement to [a] property because she was [shortly] marrying the defendant’.131 That the testatrix filed for divorce from her former husband the day after giving instructions for her new will, moreover, ‘strongly indicate[d]’ that she was arranging her affairs in contemplation of marriage.132 Third, a will expressed as made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator.133 This allows a testator to make a will that expressly takes into account that he or she may marry at some time in the future, while not risking revocation by any subsequent marriage. This clearly alters the previous position.

Western Australia 5.32 In Western Australia the relevant provision likewise recognises an exception to revocation for a will ‘made in contemplation of the marriage’, but makes clear that a will is made in contemplation of the marriage if it is so expressed or if other evidence can establish this.134 Extrinsic evidence is thus admissible to establish the relevant contemplation. It adds that a will made in contemplation of marriage is void if the marriage is not solemnised, subject to contrary intention expressed therein.135 [page 155]

Exception to general rule — powers of appointment 5.33 The exception pertaining to powers of appointment essentially provides that an appointment made by a will is not revoked by the subsequent marriage of the testator if the real or personal estate thereby appointed would not in default of the appointment pass to the testator’s heir, executor, administrator or the person entitled as next-of-kin under the intestacy rules.136 Accordingly, the appointment by the will is revoked by the testator’s marriage only if the testator’s new family may benefit under the gift in default of appointment. In other words, revocation would not normally bring an advantage to the testator’s new family because, were the will revoked, the gift over in default of appointment would come into effect in favour of other persons. That being the case, the exception is consistent with the general policy behind the revocation on marriage rule.137

Exception to general rule — executors and trustees 5.34 The uniform succession law project recommended that the appointment of an executor, trustee, advisory trustee or guardian of the person to whom the testator is married at the time of the testator’s death should not be revoked along with the will.138 This sensible recommendation has been statutorily implemented other than in the Australian Capital Territory, South

Australia and Western Australia.139

Revocation by Termination of Marriage General rule and its rationale 5.35 The wills legislation states that a will, or certain provisions in the will, are revoked with the divorce or the annulment of the marriage of the testator.140 Consistent with the foregoing, this extends to the termination of a civil partnership or registered relationship in the Australian Capital Territory, Queensland and Tasmania. The rationale for automatically revoking wills on divorce is that in most cases testators would not wish to benefit their exspouses, either at all, or as generously, as would be the case had the marriage subsisted. As explained by the New South Wales Law Reform Commission:141 Termination of marriage represents a fundamental change in a person’s life which, more often than not, renders inappropriate provisions in favour of the former spouse in wills made during the marriage. Though reported instances of difficulty with the existing law are few, an increasing number of people are getting divorced in Australia and many of them do so without seeking any legal advice. They may not therefore be alerted to the need to revise an earlier will or may mistakenly believe that the divorce will automatically revoke an earlier will. We believe that most testators, if they thought about it, would not desire to benefit their former spouses under their wills (at least, not as generously as had been intended before the divorce) and would be horrified at the thought of them administering their estates.

[page 156] The revocation of the testator’s will upon divorce or annulment of marriage does not oust the claim of a former spouse for family provision.142 Although there are considerable similarities in the statutory regimes between jurisdictions, the detail differences merit separate treatment below.

New South Wales, the Northern Territory, Queensland, Tasmania and Victoria 5.36

The model adopted in New South Wales, the Northern Territory,

Queensland, Tasmania and Victoria follows the same basic schema. It states that the divorce of a testator or annulment of his or her marriage revokes:143 • a beneficial disposition to the testator’s former spouse made by a will in existence at the time of the divorce or annulment; • an appointment of the testator’s former spouse as an executor, trustee, advisory trustee or guardian made by the will; and • a grant made by the will of a power of appointment exercisable by, or in favour of, the testator’s former spouse. The foregoing yields to contrary intention. In New South Wales and Queensland, the contrary intention must appear in the will,144 whilst in the Northern Territory and Tasmania it can ‘otherwise be established’.145 In Victoria the contrary is the case ‘if it appears’ that the testator did not wish the disposition to be revoked.146 It follows that, excepting New South Wales and Queensland, extrinsic evidence is admissible for this purpose. 5.37 What is not revoked is an appointment of the testator’s former spouse as trustee of the property left by will on trust for beneficiaries that include the former spouse’s children, or the grant of a power of appointment exercisable by the testator’s former spouse exclusively in favour of the children of the testator and the former spouse.147 5.38 The legislation adds that any beneficial gift or power caught by the revocation passes as if the former spouse had predeceased the testator.148 As a consequence, if the testator leaves, say, a legacy to his wife, and the parties later divorce, the legacy is deemed to have lapsed and the legacy goes to the residuary estate (if the will contains a residuary clause) or otherwise passes on intestacy.

Australian Capital Territory and South Australia 5.39 The basic scheme of revocation on termination of marriage is continued in both jurisdictions: it revokes a disposition of a beneficial interest in property in favour of the former spouse, the appointment by will of the former spouse as executor, trustee or guardian,149 and powers of appointment exercised by or in favour of the testator’s former spouse.150 Again, the foregoing is subject to a contrary intention, although this must appear from

the terms of the will in South Australia,151 thus precluding the admission of extrinsic evidence, whereas in the [page 157] Australian Capital Territory the court has a wide discretion to admit any evidence, including evidence of statements made by the testator.152 5.40 In neither jurisdiction is there an exception from revocation in cases where the spouse is appointed trustee of property left by will upon trust for beneficiaries that include children of the spouse(s). But in South Australia a disposition or grant of a power in accordance with a contract between the testator and the former spouse under which the testator is or was bound to dispose of property by will in a particular way is not affected by the termination of marriage.153 It is doubtful that this provision adds anything to the current law on testamentary contracts,154 and is probably otiose. Each jurisdiction does, however, expressly provide for an exception to revocation as regards a disposition, appointment or grant of power where the will is republished, either by re-execution of the will or by codicil, after the termination of the marriage if the will or codicil evidences no intention to revoke.155 If, therefore, after the divorce, the testator executes a codicil to the will (made before the divorce) which, say, substitutes an executor, but otherwise confirms the will, there will be no revocation. The intention not to revoke, however, must be clear from this act of republication.156

Western Australia 5.41 The Western Australian legislation repeats the basic rule that a will is revoked by the ending of the testator’s marriage, albeit subject to a contrary intention appearing in the will or ‘other evidence establishing such an intention’.157 Extrinsic evidence of the testator’s intention is therefore admissible. However, unlike the other jurisdictions, there are no statutory exceptions to that rule. Absent evidence of contrary intention, therefore, in Western Australia the entire will is revoked, which seems a rather

unsophisticated and blunt way of dealing with the matter. Not only are powers of appointment or trusts in favour of the testator’s children revoked, but so are specific gifts in favour of all other beneficiaries.

Amendment of Wills 5.42 Amendment of wills can occur with alterations, interlineations and obliterations made by the testator. The wills legislation in each jurisdiction states the requirements for a valid amendment.158 The treatment of this issue is amenable to distinction between alterations (and interlineations)159 and obliterations.

Alterations Presumption as to time of alteration 5.43 If an alteration is made before execution, and with the testator’s knowledge and approval,160 the will takes effect as altered161 unless the alteration is no more than deliberative. An alteration is ‘deliberative’ where it awaits further consideration by the testator to determine [page 158] whether or not he or she wishes it to have legal effect. For instance, alterations in pencil, if the rest of the will is written in ink, may be an indication that these are deliberative.162 5.44 The law presumes that unattested alterations and interlineations (and also obliterations) are effected after the execution of the will (or a subsequent codicil) and thus are ineffective.163 Unless this presumption is rebutted, what is to be admitted to probate is the will in its original form. The presumption may be rebutted by evidence from within the document itself, such as where it is shown that without the alteration the will makes no sense. This may occur, say, where the will is originally written out with blank spaces and those blanks

have been completed.164 That alterations are ‘trifling’ and of ‘little consequence’ may likewise serve to rebut the presumption,165 as where the attestation clause refers to the amendment. The presumption may, alternatively, be rebutted by extrinsic evidence, such as statements made by the testator either before or at the time of execution to the effect that alterations had been made,166 and evidence of attesting witnesses or the draftsman of the will that the alterations were made prior to execution.167 5.45 If the court is satisfied that an amendment is made prior to the execution of the will, probate will be granted of the will so amended. In other words, the alterations and interlineations are regarded as part of the original will and do not appear as such in the probated will.

Alteration duly executed 5.46 The wills legislation envisages that, if an alteration occurs after the execution of the will, it must be executed in accordance with the necessary formalities in order to be effective.168 It is sufficient compliance for this purpose that the signature of the testator and the attesting witnesses be made in the margin or near to the alteration, or as authentication of a memorandum referring to the alteration and written on the will.169 As with the formalities for the execution of wills, courts have insisted on strict compliance. For example, in In the Goods of Shearn170 immediately after execution of a valid will it was discovered that a part had been omitted, and this was corrected by an interlineation. The two witnesses placed their initials in the margin near the interlineation, but the testator did not initial the amendment. As she did not do so, there had not been due execution, and the attestation failed. Such an outcome may be avoided if it can be shown that the testator acknowledged the previous signature, in which case it will be sufficient if the witnesses alone initial the attestations. For this to apply, however, it must be proved that in affixing their signatures the witnesses were actually attending the execution of the will.171 [page 159]

5.47 There may nonetheless be scope for alterations that fail to strictly comply with the formal requirements to be upheld under the judicial dispensing power.172 Otherwise, the alteration is of no effect unless, as indicated below, it amounts to an effective obliteration.

Obliterations Part of the will not ‘apparent’ 5.48 The foregoing formality requirements do not apply, the wills legislation provides, to an alteration to a will executed by the testator if the words or effect of the will are no longer apparent because of the alteration.173 In this event, probate of the will is granted with a blank space for the part not apparent. Thus, should the testator, for example, paste paper over the words, ink them out or otherwise erase, or even scratch out parts with a knife, so that the words are not apparent, the obliteration will be effective. The term ‘apparent’ in this context means apparent on the face of the will itself,174 and includes deciphering by natural means so long as there is no physical interference with the will itself. Thus in Ffinch v Combe175 slips of paper had been pasted over the words in question after the execution of the will. As a writing expert was able to decipher the words underneath by holding the paper up to the light, the words were held to be apparent. And, more recently, in In the Estate of Kirs (deceased)176 Legoe J found the testator’s crossing out of words in a manner that left the original typewritten portion of the clause ‘visible to the eye’ did not serve to obliterate the relevant words. The same applies where magnifying glasses and microscopes can be used to read the words.177 The Western Australian provision, consistent with the general law, defines ‘apparent’ as meaning ‘legible by the unaided eye or with the help of a magnifying lens but not otherwise’.178 ‘Apparent’ does not mean capable of being made apparent via the use of extrinsic evidence. There is a real difference between apparent and discoverable. In In the Goods of Itter (deceased)179 slips of paper were again pasted over parts of a will. That expert evidence indicated that the writing beneath the slips could be deciphered only by means of infra-red photography led Ormerod J to find that the effect of the document before the attestation

was not apparent. Similarly, the use of chemicals or the actual removal of the slips is not permitted to make the words underneath apparent.180 5.49 An ineffective obliteration dictates that the will is admitted to probate in its original form.181 An effective obliteration, conversely, results in the will being admitted to probate with the words obliterated being left blank.182 The latter assumes that the obliteration is not so [page 160] substantial as to amount to a destruction of the will, in which case the will is revoked,183 and that the doctrine of dependent relative revocation has no application, as noted below.

Impact of dependent relative revocation and judicial dispensing powers 5.50 The doctrine of dependent relative revocation184 may impact upon the general position discussed above. If the testator’s intention to revoke is conditional, revocation will not take place despite the obliteration unless that condition is fulfilled. If this is so, the court may use extrinsic evidence to ascertain the words obliterated, if it can, and give effect to them. This will often be the case where words have been obliterated and words substituted (but not attested) in their place.185 Recourse to the doctrine of dependent relative revocation may, in any event, prove unnecessary here, as pursuant to the general dispensing power186 the substituted words, even though unattested, may be admitted as an alteration and thus be rendered effective. Only where the dispensing power cannot be used does the doctrine therefore have any practical effect in circumstances of this kind.

1. 2.

See 1.2. As against the testator in contract (see 1.36) and as against the estate in equity (see 1.40–1.51).

3. 4. 5. 6. 7. 8. 9. 10. 11.

12. 13.

14. 15. 16. 17.

18. 19. 20.

21. 22. 23. 24. 25.

Capacity to revoke requires the same capacity as to create a will: In the Will of Richards [1911] VLR 284 at 287 per A’Beckett J. As to the requisite capacity to create a will, see 2.1–2.20. ACT s 21; NSW s 11(1); NT s 13; Qld s 13; SA s 22; Tas s 15(1); Vic s 12(2); WA s 15. See 5.23, 5.24. See 5.35. Wills Act 1837 (UK) s 19. NSW s 11(2); SA s 21; Tas s 15(2). Hardingham, Neave and Ford, p 129. As to the doctrine of lapse, see 7.13–7.22. ACT s 21 (‘a will or part of a will is not revoked except …’); NSW s 11(1) (‘The whole or any part of a will may be revoked but only …’); NT s 13 (same as NSW); Qld s 13 (‘A will or part of a will may be revoked only …’); SA s 22 (‘no will or codicil or any part of a will or codicil is revoked otherwise than …’); Tas s 15(1) (similar to Qld); Vic s 12(2) (similar to ACT); WA s 15 (similar to Qld). For example, the words ‘last will’ and ‘last and only will’ do not by themselves express that intention sufficiently: Kitcat v King [1930] P 266; In the Will of Hill [1930] QWN 42. See, for example, D’Unienville v Sakalo (No 2) [2013] WASC 469; BC201316404 (where E M Heenan J found no basis to find that the telephone instructions by the deceased to a solicitor, not amounting to a valid informal will by reason of their ‘provisional and tentative’ nature, could constitute a valid informal revocation of any previous will: at [163], [164]). Methuen v Methuen (1817) 2 Phil 416 at 426; 161 ER 1186 at 1189 per Sir John Nicholl, cited with approval by Lord Wilberforce in Re Resch’s Will Trusts [1969] 1 AC 514 at 547. Gladstone v Tempest (1840) 2 Curt 650 at 653–4; 163 ER 538 at 540 per Sir Herbert Jenner. Lowthorpe-Lutwidge v Lowthorpe-Lutwidge [1935] P 151 at 156 per Langton J. [1969] 1 NSWR 471 at 474–5. These remarks have been cited with approval on multiple occasions: see, for example, In the Matter of Barker (deceased) [1995] 2 VR 439 at 447; BC9503283 per Tadgell J; Re Estate of Crawford (deceased) (2004) 90 SASR 119; [2004] SASC 370; BC200407840 at [28] per Besanko J; Schneider v Sydney Jewish Museum Inc [2008] NSWSC 1331; BC200811014 at [107] per Sackville AJ (who opined that ‘[t]his passage perhaps modifies slightly the view expressed in some earlier authorities that there is a “heavy burden” on a party who asserts that a clearly expressed revocation clause does not truly reflect the testator’s intentions’). See further R S Geddes and C J Rowland, ‘Revocation by Later Will: Relevance and Proof of Intention’ (1984) 58 ALJ 186. In the Matter of Barker (deceased) [1995] 2 VR 439 at 453; BC9503283 per Tadgell J; Re Estate of Crawford (deceased) (2004) 90 SASR 119; [2004] SASC 370; BC200407840 at [29] per Besanko J. See 8.1, 8.2. Greenough v Martin (1842) 2 Add 239 at 243; 162 ER 281 at 283 per Sir John Nicholl, cited with approval in Re Resch’s Will Trust [1969] 1 AC 514 at 547 per Lord Wilberforce and Schneider v Sydney Jewish Museum Inc [2008] NSWSC 1331; BC200811014 at [108] per Sackville AJ. [1977] WAR 148. See also Re Tait [1957] VR 405; In the Will of Page [1969] 1 NSWR 471. Re Luck (deceased) [1977] WAR 148 at 150. See, for example, In the Estate of Wayland [1951] 2 All ER 1041; Guardian Trust & Executors Co of New Zealand Ltd v Darroch [1973] 2 NZLR 143. See 22.23–22.27. [1995] 2 VR 439. See also Re Estate of Crawford (deceased) (2004) 90 SASR 119; [2004] SASC 370; BC200407840. Cf Schneider v Sydney Jewish Museum Inc [2008] NSWSC 1331; BC200811014 (where, in similar circumstances, the available evidence proved insufficient to persuade Sackville AJ that the later revocation clause should be so limited).

26. 27. 28. 29. 30. 31. 32.

33.

34.

35. 36.

37. 38. 39.

40. 41. 42. 43. 44. 45. 46.

[1969] 1 NSWR 417 at 474–5, as to which see 5.3. As to the doctrine of dependent relative revocation, see 5.16–5.22. Price v Tickle [2013] 1 Qd R 236; [2011] QSC 206; BC201106303 at [12]–[17] per McMeekin J. In the Goods of Petchell (1874) 3 P & D 153 at 156 per Sir J Hannen; Chichester v Quatrefages [1895] P 186 (a case of two inconsistent codicils). See, for example, Re Leber (deceased) [2014] SASC 47; BC201402407. See, for example, Re Estate of Dodds (deceased) [2013] SASC 56; BC201309687. Dempsey v Lawson (1877) LR 2 P & D 98 at 105 per Sir J Hannen (‘If it can be collected from the words of the testator in the later instrument that it was his intention to dispose of his property in a different manner to that in which he disposed of it by the earlier document, the earlier document will be revoked, and this, although in some particulars the later will does not completely cover the whole subject-matter of the earlier’). See, for example, Plenty v West (1845) 1 Rob Ecc 264; 163 ER 1033 (where the testator by his ‘last will’ disposed of a part only of his personal estate, but did not expressly revoke a former testamentary paper, Sir Herbert Jenner Fust held that, although the two were not wholly inconsistent, there was no evidence to show he intended them to be taken conjointly as his will); Re Goodes [1922] SASR 180. See, for example, Cadell v Wilcocks [1898] P 21 (where Sir F H Jeune P remarked that ‘the mere fact of making a subsequent testamentary paper does not work a total revocation of the prior one, unless the latter expressly or in effect revoke the former, or the two be incapable of standing together, and if a subsequent testamentary paper, whether will or codicil, be partially inconsistent with one of earlier date, then such latter instrument will revoke the former as to those parts only where they are inconsistent’); Re Cartwright [1921] SASR 347. [1905] P 66 at 84. See also Re Archibald [1992] 2 NZLR 109 at 112 per Tipping J (referring to the ‘general rule’ that ‘all validly executed testamentary instruments which are unrevoked at the date of death should be admitted to probate’, and that ‘[t]heir effect in combination becomes a question of construction’). See, for example, Perdoni v Curati [2012] WTLR 505; [2011] EWHC 3442 (Ch). Hearle v Hicks (1832) 1 Cl & F 20; 6 ER 823; Re Estate of Francis Collins [2000] NSWSC 407; BC200002556 at [5]–[7] per Young J; Re Estate of Currell [2012] NSWSC 705; BC201204625 at [48]–[51] per White J. See, for example, Townsend v Moore [1905] P 66. Townsend v Moore [1905] P 66 at 77 per Vaughan Williams LJ. See, for example, Re Howard (deceased) [1944] P 39. In the Estate of Brian (deceased) [1974] 2 NSWLR 231 at 233–4 per Hutley JA; Payten v Perpetual Trustee Co [2005] NSWSC 354; BC200502126 at [100] per Austin J; Re Gall (deceased) (2008) 260 LSJS 12; [2008] SASC 349; BC200811043 at [29] per Gray J. Hearle v Hicks (1832) 1 Cl & F 20 at 34; 6 ER 823 at 829 per Tindal LCJ. Re Grey Smith (deceased) [1978] VR 596 at 604 per Murphy J. See 2.36, 2.37. ACT s 21(b)(ii); NSW s 11(1)(d); NT s 13(d); Qld s 13(d); SA s 22(c); Tas s 15(1)(c); Vic s 12(2)(e); WA s 15(b). (1869) LR 2 P & D 40. See also In the Will of Johnston (deceased) [1912] VLR 55 (involving a letter declaring the testator’s intention to revoke legacies executed in the same manner as the will). See, for example, In the Goods of Durance (1872) LR 2 P & D 406. See, for example, Re Estate of Nicholls [2014] SASC 204; BC201411136 (where the deceased left a will executed in will kit form, a portion of which was excised and replaced with a piece of paper with

47. 48.

49. 50.

51. 52.

53. 54. 55. 56. 57. 58. 59.

60. 61. 62. 63. 64. 65. 66. 67. 68.

69. 70.

the deceased’s signature, Gray J found no intention to revoke the testamentary instrument completely, but merely to revoke the part excised: at [15]). ACT s 21(b)(iii); NSW s 11(1)(e); NT s 13(e); Qld s 13(e)(i); SA s 22(d); Tas s 15(1)(d); Vic s 12(2)(f); WA s 15(c). Cheese v Lovejoy (1877) LR 2 PD 251 at 253 per James LJ, citing Dr Deane in the court below (‘All the destroying in the world without intention will not revoke a will, nor all the intention in the world without destroying: there must be the two’). Eckersley v Platt (1866) LR 1 P & D 281 at 284–5 per Sir J P Wilde. See, for example, Bell v Fothergill (1870) LR 2 P & D 148 (where the testator, by cutting out his signature on the will, was found to have effected its revocation even though the signature had been ‘gummed’ on to its former place). See, for example, In the Goods of Morton (1887) LR 12 PD 141 (where the testator’s own signature and those of the attesting witnesses had been scratched out as with a knife). See, for example, Doe d Perkes v Perkes (1820) 3 B & Ald 489; 106 ER 740 (where a testator, being enraged, began to tear his will with the intention of destroying it, but was prevented by others from proceeding further, and upon resuming his composure expressed his satisfaction that no material part of the writing had been injured, the court upheld the will). Stephens v Taprell (1840) 2 Curt 458 at 465; 163 ER 473 at 475–6 per Sir Herbert Jenner. See, for example, In the Will of William Barrett (1876) 2 VLR (I) 98 (where the crossing out of the names of the testator and witnesses to a codicil did not amount to a revocation). (1877) LR 2 PD 251. See, for example, Re Pepperill (deceased) [1927] St R Qd 154 at 159 per Macnaughton J. See, for example, In the Estate of Shephard (deceased) (1982) 29 SASR 247 (five diagonal lines subsequently drawn across the face of the will not sufficient evidence to substantiate revocation). (1871) LR 2 P & D 206. See, for example, Re Everest (deceased) [1975] Fam 44 (where the testator cut off the lower half of the first page of the will, but what remained was the usual revocation clause, the appointment of a bank as executor and trustee, a gift of his personal chattels to his wife for life, and a provision that after her decease the goods and chattels were to fall into and form part of the testator’s residuary estate; that a further devise and bequest of all his real estate and the residue of the personal estate to the bank upon trust could not be given effect because the part cut away would likely have contained the terms of the trust did not prevent Lane J from upholding the will). Leonard v Leonard [1902] P 243 at 248 per Gorell Barnes J. In the Goods of Dutton (deceased) (1863) 3 SW & Tr 66 at 69; 164 ER 1197 at 1198 per Sir C Cresswell. See, for example, In the Goods of Dutton (deceased) (1863) 3 Sw & Tr 66; 164 ER 1197. See 4.17, 4.18. (1857) Deane 290; 164 ER 579. [1909] P 157. Gill v Gill [1909] P 157 at 161–2, followed in In the Estate of Simkin [1950] VLR 341 (where the husband’s will was destroyed by his wife against the husband’s wishes). As to the requisite standard of mental capacity, see 2.5–2.13. See, for example, In the Goods of Brassington [1902] P 1 (where the testator mistakenly tore up the will by accident in a drunken episode but subsequently pasted it together again, Gorell Barnes J admitted the will to probate); Re Wright [1970] QWN 28. See, for example, Lippe v Henderwicke (1922) 31 CLR 148; BC2290103. As to dependent relative revocation, see 5.16–5.22.

71. 72. 73. 74. 75. 76.

77. 78. 79. 80. 81. 82.

83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99.

See, for example, Re Edmonds (deceased) [2016] SASC 41; Re Moschoudis [2016] VSC 139; BC201602347. See 11.20–11.22. NSW s 11(1)(f); NT s 13(f); Qld s 13(e)(ii); Tas s 15(1)(e); Vic s 12(2)(g). Aoun v Clark [2000] NSWSC 274; BC200001597 at [17] per Young J. See New South Wales Law Reform Commission, Wills — Execution and Revocation, Report 47, 1986, pp 60–2. As to the traditional concept of destruction, see 5.10, 5.11. The genesis and use of the phrase ‘dependent relative revocation’ is traced and analysed in J Warren, ‘Dependent Relative Revocation’ (1920) 33 Harv L Rev 337 (who argues that the terminology is misleading, and at best an attempt to group cases that are more or less closely related). The terms ‘dependent’ and ‘relative’ have nothing to do with a testator’s dependants or relatives, but should be understood as aligning with the concept of a revocation that is conditional. This explains, in turn, recommendations to replace the terminology ‘dependent relative revocation’ with ‘conditional revocation’: see, for example, Law Reform Committee, Twenty-Second Report — Making and Revocation of Wills, 1980, HMSO, Cmnd 7902, p 24. [1925] P 177 at 185. See 6.13. [1953] VLR 168. (1921) 21 SR (NSW) 702 at 705. See, for example, Dixon v Treasury Solicitor [1905] P 42. Re Jones (deceased) [1976] Ch 200 at 214 per Roskill LJ (adding that ‘[a] mere present intent to make a new will at some future date is not enough in such a case to prevent such an act of revocation being absolute, thus stopping some disappointed beneficiary under the old will from seeking to have recourse to the doctrine of conditional revocation in the hope of finding relief in that equitable haven’). Re Jones (deceased) [1976] Ch 200 at 211 per Buckley LJ. [1976] Ch 200. Re Jones (deceased) [1976] Ch 200 at 215. Re Jones (deceased) [1976] Ch 200 at 218. [1947] VLR 319. In the Will of Broomhead [1947] VLR 319 at 322–3. See also Dancer v Crabb (1873) LR 3 P & D 98 at 103–5 per Sir James Hannen. As to the judicial dispensing power, see 4.30–4.52. See, for example, Re Estate of Hudson (deceased) [2002] WASC 146; BC200203119 (informal suicide note held effective to revoke earlier will pursuant to the judicial dispensing power). [1925] P 177. In the Estate of Southerden [1925] P 177 at 186. See also at 183–4 per Pollock MR, at 184 per Warrington LJ; Re Sorrelt (deceased) [2015] SASC 68; BC201503361 at [31]–[36] per Gray J. (1797) 3 Ves 321; 30 ER 1033. Campbell v French (1797) 3 Ves 321 at 323; 30 ER 1033 at 1034. Wills Act 1837 (UK) s 18. ACT s 20(1); NSW s 12; NT s 14; Qld s 14; SA s 20; Tas s 16; Vic s 13; WA s 14. See 5.25–5.32 (wills made in contemplation of marriage), 5.33 (powers of appointment), 5.34 (executors etc). ACT s 20 (see Civil Partnerships Act 2008 (ACT) s 6A); Qld s 14A (see Civil Partnerships Act 2011 (Qld) ss 6, 9). Tas s 16 (see Relationships Act 2003 (Tas) Pt 2).

100. Burton v McGregor [1953] NZLR 487 at 490 per Adams J. 101. The intestacy rules are discussed in Chapter 9. 102. Warter v Warter (1890) LR 15 PD 152 (where the marriage was not valid because it infringed a statutory provision). 103. Following the original English provisions: see Wills Act 1837 (UK) s 18; Law of Property Act 1925 (UK) s 177 (applicable to wills made before 1 January 1983), as to which see Theobald, pp 113–14. See also Law Reform Committee, Twenty-Second Report — Making and Revocation of Wills, 1980, HMSO, Cmnd 7902, pp 14–16 (recommending against the admission of extrinsic evidence for this purpose). 104. NSW (1 November 1989); NT (1 March 2001); Qld (1 April 2006); Tas (1 March 2009); Vic (20 July 1998); WA (9 February 2008). 105. QLRC, MP 29, pp 30–1. 106. ACT s 20(1); SA s 20(2). 107. Steel v Ifrah (2013) 38 VR 186; [2013] VSC 199; BC201302059 at [13] per Dixon J. 108. Sallis v Jones [1936] P 43. 109. Re Hamilton (deceased) [1941] VLR 60. 110. In the Estate of Langston (deceased) [1953] P 100; Re Chase (deceased) [1951] VLR 477. Cf Burton v McGregor [1953] NZLR 487 (where F B Adams J held that a bequest of the testator’s entire estate ‘unto my fiancée’ was not ‘expressed to be made in contemplation of a marriage’, a decision seen as inconsistent with Langston by Megarry J in Re Coleman (deceased) [1976] Ch 1 at 10–11). 111. [1949] VLR 201. 112. Re Taylor (deceased) [1949] VLR 201 at 202. 113. Re Taylor (deceased) [1949] VLR 201 at 202. 114. [1973] 1 NSWLR 180. 115. In the Will of Foss [1973] 1 NSWLR 180 at 183–4. See also Keong v Keong [1973] Qd R 516 at 524–5 per Kneipp J, with whom Hanger CJ and Matthews J concurred; Wain v Wain [2010] 2 Qd R 375; [2009] QSC 320; BC200909138 at [9]–[12] per McMurdo J. 116. (1986) 6 NSWLR 60. 117. Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 at 66. 118. See, for example, Wain v Wain [2010] 2 Qd R 375; [2009] QSC 320; BC200909138 (where the will provided for a disposition to, inter alia, the testator’s future wife but referred to her by name only, McMurdo J ruled that it had been revoked by the marriage for not having been made in contemplation of marriage). 119. Re Coleman (deceased) [1976] Ch 1. 120. (1986) 6 NSWLR 60. 121. Hoobin v Hoobin [2004] NSWSC 705; BC200404981 at [53] per White J. See also Steel v Ifrah (2013) 38 VR 186; [2013] VSC 199; BC201302059 at [7] per Dixon J. 122. Re Estate of O’Brien (deceased) [2011] 4 IR 687; [2011] IEHC 327 at [36], [37] per O’Neill J; Steel v Ifrah (2013) 38 VR 186; [2013] VSC 199; BC201302059 at [7], [13] per Dixon J. 123. Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60 at 67–8 per Mahoney JA; Hoobin v Hoobin [2004] NSWSC 705; BC200404981 at [45] per White J. 124. (2013) 38 VR 186; [2013] VSC 199; BC201302059 at [9]. 125. Steel v Ifrah (2013) 38 VR 186; [2013] VSC 199; BC201302059 at [10] (adding that the statute requires a ‘lesser connection or relation’ between the prospect or expectation of marriage and the making of the will by not using the verb form, ‘when contemplating’, and by not identifying the point in the process of making a will when that contemplation must occur).

126. Steel v Ifrah (2013) 38 VR 186; [2013] VSC 199; BC201302059 at [11] per Dixon J. 127. NSW s 12(2)(a); NT s 14(2)(a); Qld ss 14(2)(a) (marriages), 14A(2)(a) (registered relationships); Tas s 16(2)(a) (extends to registered relationships); Vic s 13(2)(a) (see VLRC, 1994, pp 98–106). 128. NSW s 12(3); NT s 14(3); Qld ss 14(3)(a) (marriages), 14A(3)(a) (registered relationships); Tas s 16(3) (also extends to registered relationships); Vic s 13(3)(a). Cf Wills Act 2007 (NZ) s 18(3)(a)(ii) (which ousts the general rule where ‘the will does not expressly say that it is made in contemplation of a particular marriage or civil union but the circumstances existing when it was made show clearly that it was made in contemplation of a particular marriage or civil union’), as to which see Re Stirling (deceased) [2009] 3 NZLR 693 (where the circumstances proved too equivocal to make a safe finding of fact that the testator made his will in contemplation of marriage). 129. See 5.28. 130. (2013) 38 VR 186; [2013] VSC 199; BC201302059. 131. Steel v Ifrah (2013) 38 VR 186; [2013] VSC 199; BC201302059 at [38]. 132. Steel v Ifrah (2013) 38 VR 186; [2013] VSC 199; BC201302059 at [44]. 133. NSW s 12(4); NT s 14(4); Qld ss 14(3)(b) (marriages), 14A(3)(b) (registered relationships); Tas s 16(4) (also extends to registered relationships); Vic s 13(3)(b). 134. WA s 14(3). 135. WA s 14(2). See also Wills Act 2007 (NZ) s 18(3)(b) (ouster of general rule if, inter alia, ‘the marriage or civil union that occurs is the contemplated one’). 136. ACT s 20(2) (also applies to civil partnerships); NSW s 12(2)(c);NT s 14(2)(b); Qld ss 14(2)(c) (marriages), 14A(2)(c) (registered relationships); SA s 20(1); Tas s 16(2)(c) (also applies to registered relationships); Vic s 13(2)(c); WA s 14(1)(b). The equivalent English provision is found in Wills Act 1837 (UK) s 18(2) (as substituted by the Administration of Justice Act 1982 (UK) ss 18(1), 73(7), 76(11); see Law Reform Committee, Twenty-Second Report — Making and Revocation of Wills, 1980, HMSO, Cmnd 7902, pp 13–14) (which applies to civil partnerships: s 18B). 137. See generally In the Goods of Gilligan (deceased) [1950] P 32 at 38–9 per Pilcher J. 138. QLRC, MP 29, pp 29–32. 139. NSW s 12(2)(b); NT s 14(2)(b); Qld ss 14(2)(b) (marriages), 14A(2)(b) (registered relationships); Tas s 16(2)(b); Vic s 13(2)(b). 140. ACT s 20A (extends to termination of civil partnerships); NSW s 13; NT s 15; Qld ss 15 (divorce or annulment of marriage), 15A (end of registered relationship); SA s 20A; Tas s 17 (extends to revocation of deed of relationship); Vic s 14; WA s 14A. 141. New South Wales Law Reform Commission, Wills — Execution and Revocation, Report 47, 1986, p 129 (footnotes omitted). 142. Although only made explicit by statute in some jurisdictions (ACT s 20A(3)(a); NSW s 13(5)(a); SA s 20A(2)(d)), the position is the same elsewhere given that the family provision legislation is not expressed to be confined by the revocation by operation of law. The family provision regimes are explained in Part III. 143. NSW s 13(1); NT s 15(3); Qld ss 15(1) (marriages), 15A(1) (registered relationships); Tas s 17(1) (also applies to revocation of deeds of relationship); Vic s 14(1). 144. NSW s 13(2); Qld ss 15(3) (marriages), 15A(3) (registered relationships). 145. NT s 15(4); Tas s 17(4) (also applies to revocation of deeds of relationship). 146. Vic s 14(2). 147. NSW s 13(3); NT s 15(5); Qld ss 15(2) (marriages), 15A(2) (registered relationships); Tas s 17(2) (also applies to revocation of deeds of relationship); Vic s 14(1)(b), (c). 148. NSW s 13(4); NT s 15(6); Qld ss 15(4) (marriages), 15A(4) (registered relationships); Tas s 17(3) (also applies to revocation of deeds of relationship); Vic s 14(3).

149. In the Australian Capital Territory, and such appointment is ‘taken to be omitted from the will’: ACT s 20A(1)(b). 150. ACT s 20A(1)(a), (b); SA s 20A(1)(a)–(c). 151. SA s 20A(2)(b). 152. ACT s 20A(2)(a). 153. SA s 20A(2)(a). 154. As to the current law on testamentary contracts, see 1.29–1.39. 155. ACT s 20A(2)(b); SA s 20A(2)(d). 156. As to republication of a will, see 6.1–6.12. 157. WA s 14A(2). 158. ACT s 12; NSW s 14; NT s 16; Qld s 16; SA s 24; Tas s 18; Vic s 15; WA s 10. These provisions are based on s 21 of the Wills Act 1837 (UK), as to which see Theobald, Ch 6. 159. Although an ‘interlineation’, which is generally used merely to complete an imperfect sentence, differs from an ‘alteration’, which is a change in the original disposition (In the Goods of Cadge (1868) LR 1 P & D 543 at 545 per Sir J P Wilde), the principles applicable to each are the same in this context. 160. As to the concept of ‘knowledge and approval’ see 2.27, 2.28. 161. Greville v Tylee (1851) 7 Moo PC 320 at 327–8; 13 ER 904 at 907 per Dr Lushington. 162. See, for example, In the Goods of Hall (1871) LR 2 P & D 256. 163. Cooper v Bockett (1846) 4 Moo PC 419; 13 ER 365; In the Goods of Sykes (1873) LR 3 P & D 26 at 27–8 per Sir J Hannen (codicil); Cinnamon v Public Trustee for Tasmania (1934) 51 CLR 403 at 410; BC3400026 per Gavan Duffy CJ and Dixon J. 164. See, for example, Birch v Birch (1848) 1 Rob Ecc 675; 163 ER 1175; Re Marryat [1969] QWN 6. 165. See, for example, In the Goods of Hindmarch (1866) 1 LR P & D 307 (where it was held that the fact that ‘the testator was a lawyer, that the alterations are all of a trifling character, and that they bear the appearance of having been written with the same pen and ink as the rest of the will’ justified their admission to probate: at 308 per J P Wilde). Cf Chang v Chang [2012] VSC 346; BC201208490 (where the alleged alteration would have had the effect of depriving the defendant of an entitlement under the will to a share of his late mother’s estate, McMillan J described it as ‘of a serious and not trifling nature’ (at [15]), such that the plaintiff proved incapable of discharging the onus of rebutting the presumption (at [49])). 166. In the Goods of Sykes (1873) LR 3 P & D 26 at 27–8 per Sir J Hannen. 167. In Will of Rider (1901) 27 VLR 238. 168. ACT s 12(1); NSW s 14(1)(a); NT s 16(1)(a); Qld s 16(1)(a); SA s 24; Tas s 18(1); Vic s 15(1); WA s 10(2). 169. ACT s 12(2); NSW s 14(3); NT s 16(2); Qld s 16(3); SA s 24; Tas s 18(2); Vic s 15(3); WA s 10(4). 170. (1880) 43 LT 736. See also In the Estate of Kirs (deceased) (1990) 55 SASR 61 (alterations signed by the testator but not witnessed held ineffective); Re White (deceased) [1991] Ch 1 (a factually similar case to Shearn). 171. See, for example, In the Goods of Dewell (1853) 1 Sp (Ecc & Ad) 103; 164 ER 60; Re Sanders [1944] SASR 22. 172. Cf In the Estate of Kirs (deceased) (1990) 55 SASR 61; James v Burdekin (1990) 3 WAR 298; Re Estate of Baes (deceased) [2012] SASC 217; BC201209457 (where in none of these cases was the court willing to utilise the dispensing power in this context). As to the judicial dispensing power, see 4.30–4.52. 173. ACT s 12(1); NSW s 14(2); NT s 16(3); Qld s 16(2); SA s 24; Vic s 15(2); Tas s 18(1); WA s 10(3). 174. In the Goods of Itter (deceased) [1950] P 130 at 132 per Ormerod J. See also the more general discussion in Re Adams [1990] Ch 601 at 606–8 per Mr Francis Ferris QC.

175. [1894] P 191. 176. (1990) 55 SASR 61 at 66. 177. See, for example, In the Goods of Brasier [1899] P 36; Re O’Connor [1934] QWN 18 (each involving magnifying glasses). 178. WA s 10(1). 179. [1950] P 130. 180. See, for example, In the Goods of Horsford (1874) LR 3 P & D 211 at 215–16 per Sir J Hannen (no use of chemicals); In the Goods of Itter (deceased) [1950] P 130 (no removal of the slips). 181. Soar v Dolman (1842) 3 Curt 121; 163 ER 675. 182. In the Goods of James (deceased) (1888) 1 Sw & Tr 238; 164 ER 709; Re Estate of Ward (SC(WA), Owen J, 9 April 1998, unreported) BC9801241 (where the paragraph in the deceased’s will appointing the Public Trustee as executor was scored through and ‘Cancelled’ written across it, and signed and dated by the deceased, Owen J held that, as the deceased had not told anyone she had made a new will and the document was located where she kept her important papers, the will should be admitted to probate subject only to the revocation of the appointment of the Public Trustee as executor, and administrators appointed in the Public Trustee’s place). 183. See, for example, In the Goods of Morton (1887) LR 12 PD 141; Re Adams (deceased) [1990] Ch 601; Re Sharland [2006] 1 Qd R 562; BC200512172. As to revocation by destruction of a will, see 5.9–5.14. 184. As to the doctrine of dependent relative revocation, see 5.16–5.22. 185. See, for example, In the Goods of Horsford (1874) LR 3 P & D 211 at 216 per Sir J Hannen. 186. As to the dispensing power, see 4.30–4.52.

[page 161]

CHAPTER 6

Republication and Revival of Wills Republication Nature of republication Impact of republication Change of persons Changes in property Unattested alterations Incorporation by reference Gifts to attesting witnesses Limits on the doctrine Intermediate codicils Ademption/lapse/satisfaction

6.1 6.1 6.4 6.5 6.6 6.7 6.8 6.9 6.10 6.11 6.12

Revival Nature and parameters Requirement for an intention to revive Effects of revival Revival and judicial dispensing powers

6.13 6.13 6.15 6.18 6.20

Republication Nature of republication 6.1 A will or codicil may be ‘republished’ by either re-executing the original will or making a codicil to the will, in each event in accordance with the

formality requirements.1 Both methods require an intention to republish. The mere fact of re-execution establishes a presumption that the testator intended to republish.2 In the case of a codicil, it appears that all that is needed to establish intention is some reference in the codicil to the will; the codicil need not expressly confirm the will. Thus, in Re Champion3 the words, ‘I … declare this to be a codicil to my last will, dated …’, were held sufficient to indicate an intention to republish, and in Serocold v Hemming4 an instrument, though not actually described as a codicil but written at the foot of the will, that referred to its executors was also held sufficient to evince an intention [page 162] to republish. But no republication occurs if the instrument makes no reference to the will,5 and extrinsic evidence of intention to republish in these circumstances is generally inadmissible. 6.2 Republication represents the actual confirmation of a will,6 and provides a vehicle for an existing will to take effect as if it had been written at the date of republication, not when it was first created.7 As stated by the Privy Council in Goonewardene v Goonewardene:8 [T]he effect of confirming a will by codicil is to bring the will down to the date of the codicil, and to effect the same disposition of the testator’s property as would have been effected if the testator had at the date of the codicil made a new will containing the same dispositions as in the original will but with the alterations introduced by the codicil.

6.3 This general principle is not, however, rigid or technical, but a means of giving effect to the testator’s intentions. It should not be used to actually defeat those intentions.9 As Barton J stated in Re Moore (deceased):10 The authorities … lead me to the conclusion that the Courts have always treated the principle that republication makes the will speak as if it had been re-executed at the date of codicil not as a rigid formula or technical rule, but as a useful and flexible instrument for effectuating a testator’s intentions, by ascertaining them down to the latest date at which they have been expressed.

So if the technical effect of republication is to invalidate a gift that was valid at the date of the actual will, republication will invalidate the gift only if that was the testator’s intention.11

Impact of republication 6.4 Beyond the foregoing, the impact of republication is illustrated by the following five scenarios. The third, fourth and fifth scenarios highlight how republication operates to cure defects that may otherwise vitiate a will or an interest thereunder.

Change of persons 6.5 Where republication is validly effected, a description of a person(s) contained in the will applies to the person(s) fitting that description at the time of republication. So in Re Hardyman12 the will left a gift to the wife of the testator’s cousin. The testator republished the will by codicil after the death of the cousin’s wife, knowing that she had died. The cousin subsequently remarried and the second wife was held entitled to the gift. Had there been no republication by codicil, the gift would likely have lapsed.13 Similarly, in Perkins v Micklethwaite14 a testator [page 163] made a gift in his will to his ‘youngest son, Joseph’. Joseph predeceased the testator, who later had another son, also named Joseph. A later republication of the will meant that the ‘second’ Joseph took the gift.

Changes in property 6.6 The wills legislation directs that every will is construed, with reference to the estate comprised in it, to speak and take effect as if it had been executed immediately before the testator’s death.15 This provision is subject to a contrary intention,16 and a specific gift of property may evince such an intention. However, if the will is republished and there is a specific gift of property, it may well be that the will is brought down to the date of republication. So, in Re Reeves17 the testator devised an interest in ‘my present lease’. That lease, at the time the will was executed, had an unexpired term of three-and-a-half years. After its expiry a new lease was entered into for 12 years.

A codicil was made republishing the will. Russell J held that because of republication the will was to be brought down to the date of republication, so that the interest devised included the interest in the new lease. On the same footing is Re Champion,18 where the testator devised certain lands ‘now in my own occupation’, but thereafter acquired and occupied further land, before republishing his will by codicil. The beneficiary was held entitled not only to the original land, but to the land later acquired and occupied by the testator. The words ‘now in my own occupation’ were to be read as at the date of republication, that is, at the date of the codicil.

Unattested alterations 6.7 If a testator, after executing a will, makes alterations that are executed and attested as required by the legislation,19 the codicil serves to republish the will, which in turn has the effect of validating the alterations.20 This assumes that the alteration was not merely deliberative, and was made before the execution of the codicil. The presumption that alterations are made after execution must therefore be rebutted.21

Incorporation by reference 6.8 The doctrine of incorporation by reference allows a testator to incorporate into a duly executed will one or more documents that have not been properly executed.22 The doctrine applies, inter alia, only if the document to be incorporated is in existence at the date of execution of the will, and reference is made in the will to the document being in existence. So if a testator makes reference in a will to an existing document, but executes a future document, there can be no incorporation. But if the will is republished and the document has come into existence before the date of republication, it may be validly incorporated. After all, in this event, the document is in existence at the date of the will, which here means the date of republication.23

Gifts to attesting witnesses 6.9 Traditionally a testamentary gift to an attesting witness (or his or her spouse) was treated as void.24 If, however, the will is republished by a codicil, which is attested by independent

[page 164] witnesses, the gift will stand. This is because the will is brought down to the date of republication and at that date is witnessed by independent witnesses.25

Limits on the doctrine 6.10 The major limitation on the doctrine of republication, foreshadowed above,26 is that a will may not be republished if this would be contrary to the testator’s intention. The principle may be further illustrated by reference to two distinct but related matters: intermediate codicils; and ademption/lapse and satisfaction.

Intermediate codicils 6.11 If a first codicil to a will effectively revokes a gift or disposition contained therein, the republication of the will by a second codicil, with no express reference to the original gift or disposition, does not have the effect of restoring that disposition. The remarks of Latham CJ in Fairweather v Fairweather are instructive:27 … confirmation of a will by a codicil re-publishes the will, but that it republishes only so much of the will as still represents the will of the testator. It is for this reason that primá facie, that is, subject to any expression of contrary intention, the republication of a will by a second codicil does not deprive of effect a first codicil which has altered the will. It is quite true … that the confirmation of the will by a codicil brings the will down to the date of the codicil. But that which it brings down is the will as then operating, and not the will as it once was but no longer is. If words contained in the will have been deprived of their operation, either by an intermediate codicil or by events which have occurred before the execution of the later codicil the effect of which is in question, then the confirmation of the will operates only to repeat so much of the will as was effective at the date of the later codicil.

As the foregoing makes clear, the principle yields to a contrary intention. This requires proof that the testator intended to revoke the first codicil and thereby to set up the will unaffected by the codicil. Ordinarily this would be premised on express words.28

Ademption/lapse/satisfaction

6.12 Ademption occurs when a specific gift in a will no longer exists at the time the will comes into effect,29 and lapse ordinarily ensues where an intended beneficiary predeceases the testator.30 The equitable doctrine of satisfaction provides for substitution of legal obligations in certain circumstances.31 Republication of a will has no effect on these doctrines, so that if property has, say, been adeemed, republication cannot reinstate the original gift. The reason is that ‘[t]he codicil can only act upon the will as existed at the time; and, at the time, the legacy revoked, adeemed or satisfied formed no part of it’.32 [page 165]

Revival Nature and parameters 6.13 Revival has the effect of reviving or restoring a revoked will or codicil; republication is instead concerned with the confirmation of an unrevoked will or codicil.33 The wills legislation addresses the topic of revival in three ways, based on its English progenitor,34 the object of which, it has been said, ‘was presumably to put an end to implied revivals’.35 First, it states that a will or part of a will that has been revoked is revived by re-execution or by execution of a will showing an intention to revive the will or part.36 Second, it envisages that a revival of a will that was partly revoked and later revoked as to the balance only revives that part of the will most recently revoked, subject to contrary intention expressed in the reviving will.37 Third, other than in South Australia it provides that a will that has been revoked and is later wholly or partly revived is taken to have been executed on the day on which the will is revived.38 Accordingly, a revoked will may only be revived in the same manner as it may be republished, either by re-execution of that will or by a properly executed will or codicil (subject to the judicial dispensing power).39 The legislation makes clear that these are the exclusive methods of revival. Thus no revival of a revoked instrument occurs from the revocation of the actual revoking instrument. So if a testator executes a will and thereafter executes a

new will that revokes the earlier will, but then revokes the second will, such a revocation does not function to revive the first will.40 Instead, an intestacy will result, subject to the operation of the doctrine of dependent relative revocation,41 pursuant to which the second will may stand.42 6.14 For a revival to take effect, the revoked will must be physically in existence at the date of the reviving instrument. It follows that a will that has been revoked by destruction animus revocandi is incapable of being revived.43

Requirement for an intention to revive 6.15 The legislation makes clear that revival is premised, inter alia, on proof of intention to revive. If the revival is in the form of re-execution of the actual instrument to be revived, that re-execution will exhibit the requisite intention. This is the strongest evidence of revival. If the revival is sought to be established by a codicil to the will, evidence as to intention to revive must appear on the face of the codicil; extrinsic evidence of the testator’s intention is not admissible. As explained by Sir J P Wilde in In the Goods of Steele:44 … the legislature meant that the intention of which it speaks should appear on the face of the codicil, either by express words referring to a will as revoked and importing an intention to revive the same, or by a disposition of the testator’s property inconsistent with any other intention, or by some other expressions conveying to the mind of the Court, with reasonable certainty, the existence of the intention in question.

[page 166] In line with this dictum, courts are ‘slow to conclude that a will has been revived in this indirect kind of way’,45 and so a mere reference in a codicil to a former will does not suffice to revive that will (unlike in the case of republication).46 More is required, such as an express confirmation of the will47 or other statements in the codicil that make the intention clear. In establishing intention, although extrinsic evidence of the testator’s actual intentions is inadmissible, the actual circumstances surrounding the execution of the codicil may be ascertained.48 6.16

The operation of the general principle is best understood by reference

to selected case authority. In In the Estate of Brian (deceased)49 the testator made a will, which appointed her son as executor, and then made another will containing a general revocation clause, in which she appointed her grandson as executor. The beneficial dispositions in both wills were essentially the same. Later again she executed a codicil, which was endorsed on the first will, that revoked all former wills and appointed her son as executor. The codicil was referred to therein as ‘the codicil to this will’. Hutley JA admitted extrinsic evidence of the surrounding circumstances to resolve the ambiguity created by these words.50 This included evidence to the effect that the testator had formed the view that her son did not wish to be executor, but later learned that he did not object to act. The words ‘this will’ applied to the first will and the attendant circumstances indicated an intention to revive that will. The first will and codicil were accordingly admitted to probate. Similarly, in In the Estate of Horne51 the testator made a will disposing her entire estate, and later executed another will also disposing her entire estate. Still later, she executed a codicil, engrossed as an endorsement on the first will, that substituted a new executor for an executor in the first will. Harvey J acknowledged that the mere fact that the codicil was written on the same paper as the earlier will was insufficient to indicate an intention to revive,52 but found that the contents of the actual codicil, in referring to the executor, sufficed to indicate that intention.53 Accordingly, the first will was revived and admitted to probate with the codicil. Finally, in In the Goods of Davis (deceased)54 the testator made a will benefiting a woman whom he subsequently married. The marriage thus revoked the will.55 After the marriage, he endorsed on an envelope containing the will a statement in the following terms: ‘the herein named Ethel Phoebe Horsley is now my lawful wedded wife’. This statement was signed and attested. Willmer J held that this revealed a sufficient intention to revive, having received evidence that a sister of the testator’s wife had pointed out to him that his marriage had revoked his existing will. 6.17 If the reference to the earlier revoked instrument is shown to have been made by mistake, an intention to revive is absent. The reference will therefore be severed. A case illustration, among many,56 is Re Estate of Denger (deceased)57 The testator executed a will in

[page 167] 1993 appointing as executors two partners of a law practice who had drafted the will. In 1998 she executed a new will that changed the beneficiaries and appointed the Public Trustee as executor, and specifically revoked the 1993 will. In 1999 the law practice wrote the testator that, due to a change of partners in the practice, changes to the 1993 will were needed. The testator signed a codicil to this effect in 2000. Slicer J held that the testator signed the codicil by mistake, not understanding its legal significance and regarding it as a purely administrative matter.58 She therefore lacked any intention to revive the 1993 will.

Effects of revival 6.18 The wills legislation makes clear that a will that is revived takes effect as if it had been made at the actual date of the revival.59 As a consequence, as in the case of republication, revival may validate an unattested alteration made to a will before the revival, can incorporate documents not in existence when the will was first executed and may save a gift to an attesting witness.60 6.19 The effect of revival on intermediate revocatory instruments is partly addressed by the wills legislation in stating that, subject to a contrary intention, ‘a revival of a will that was partly revoked as to the balance only revives that part of the will most recently revoked’.61 Ultimately, though, the effect of revival on any intermediate instrument depends on the terms of the first will, which is revived, and on those of the reviving codicil. So if a will that is later revoked is then revived by codicil, provided the codicil expressly revokes the revoking will, probate will only be granted of the revived will and the codicil.62 If the codicil does not expressly revoke the revoking will, but the original will contains an express revocation clause, the same result ensues: the revival serves to bring the will down to the date of revival, so that the original will is deemed to have been made at the date of revival and the revocation clause contained in it revokes the revoking will.63 If neither the original will nor the later codicil contain revocation clauses, the revoking will remains valid to the extent that it is not inconsistent with the other testamentary instruments. If totally

inconsistent, no probate of that will can be granted, but if partially consistent, or where there may or may not be implied revocation, all three documents are admitted to a grant of probate, leaving the precise effect to be determined by a court of construction.64

Revival and judicial dispensing powers 6.20 The relationship between the doctrine of revival and judicial dispensing powers65 was considered in Trickey v Davies.66 The testator made a will leaving his property to four daughters from his first marriage. His first wife having died, he later remarried. That marriage would ordinarily have operated to revoke the will.67 It was argued, however, that because of the judicial dispensing power the doctrine of revival operated so that the will should be admitted to probate. The statutory requirements for revival had clearly not been complied with — there had been no re-execution of the will or any codicil showing an intention to revive — but the testator failed to appreciate that his marriage had revoked the will, and later acted in a way [page 168] indicative of his intention that the will operated. Hodgson J refused to apply the dispensing power in these circumstances. His Honour reasoned, inter alia, that if mere statements or other conduct referable to the revoked will, but not involving physical dealing with the revoked will, were sufficient to make the revoked will effective pursuant to the dispensing power, the revival provisions could have no substantial application.68 However, Hodgson J envisaged that the dispensing power could nonetheless apply in revival-like situations if the document regarding which the dispensation is sought is not precisely the revoked properly executed will. In that event, the revival provision would not apply. For instance, the deceased may have manifested the appropriate intention in relation to a document that is a copy of the revoked will, or have physically dealt with the revoked will so as to alter it physically in some way.69

6.21 More generally, if there is a document in existence, say, an unexecuted or unwitnessed codicil showing an intent to revive, the dispensing power may be called upon to establish revival, in that the formalities relating to the codicil may be disregarded. In In the Estate of Lynch (deceased),70 for example, the testatrix made a will and later married. Again, she did not appear to realise that the marriage revoked the will. She later crossed out her own name on the will and wrote in her new married name, initialling this alteration. Matheson J held that the alteration made by the testator sufficiently disclosed an intention that the document should constitute her last will, so that the document could be admitted to probate under the dispensing power. Following this decision, White J in Slack v Rogan71 ruled that a revoked 2003 will could be revived by a 2008 informal instrument (a file note signed by the deceased’s solicitor), which the evidence revealed the deceased wished to form her will.

1. 2. 3. 4. 5.

6.

7. 8.

9.

The formality requirements are discussed in Chapter 4. So far as compliance with the formalities is concerned, it is reasonable to assume that judicial dispensing powers (as to which see 4.30–4.52) may be available to cure certain informalities. The presumption may, however, be rebutted: see, for example, Dunn v Dunn (1866) LR 1 P & D 277. [1893] 1 Ch 101. (1758) 2 Lee 490; 161 ER 415. See, for example, Re Smith (1890) 45 Ch D 632; In the Will of Eteson (1927) 28 SR (NSW) 119 (where the CJ in Eq opined that ‘one must find in the body of the codicil a reference to the will, and the fact that it appears on the same paper as the will itself to which it is sought to make it a codicil, is not sufficient’: at 123). This in turn explains why some English texts prefer the term ‘confirmation’ in place of republication, citing Berkeley v Berkeley [1946] AC 555 at 575 per Lord Porter (who branded the publication and republication of wills as ‘an expression now meaningless, but still unhappily in use’): see, for example, Williams, Mortimer and Sunnucks, p 257; Theobald, pp 140–1. Yet as the term has been consistently referred to in Australian law without adverse comment, it is used in this work. The South Australian wills legislation reiterates this principle: SA s 3(2). [1931] AC 647 at 650 per Lord Russell, cited with approval by Menzies J in Hawkins v Perpetual Trustee Co (Ltd) (1960) 103 CLR 135 at 161; BC6000240. See also Re Fraser [1904] 1 Ch 726 at 734 per Stirling LJ; Re Reeves [1928] Ch 351 at 355 per Russell J (‘the will and the codicil are treated as one document bearing the date of the codicil’); Re Tredgold [1943] Ch 69 at 78 per Simonds J; Hawkins v Perpetual Trustee Co (Ltd) at 145–7 per Fullagar J, at 152–3 per Kitto J. Doe d Biddulph v Hole (1850) 15 QB 848 at 858; 117 ER 678 at 682 per Patteson J; Hawkins v Perpetual Trustee Co (Ltd) (1960) 103 CLR 135 at 146; BC6000240 per Fullagar J. See, for example,

10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32.

33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47.

Re Hardyman [1925] Ch 287 at 291 per Romer J. [1907] 1 IR 315 at 318. See, for example, Re Heath’s Will Trusts [1949] Ch 170. [1925] Ch 287. As to the doctrine of lapse, see 7.13–7.22. (1714) 1 P Wms 274; 24 ER 386. ACT s 24; NSW s 30; NT s 29; Qld s 33E; SA s 27; Tas s 44; Vic s 34; WA s 26(1)(a). In the Northern Territory and Victoria, the contrary intention can be derived from outside the will, whereas in the remaining jurisdictions it can be sourced only from the will. [1928] Ch 351. [1893] 1 Ch 101. See also Trustees Executors and Agency Co Ltd v Sargood (1904) 26 ALT 51. As to the statutory requirements, see 5.46, 5.47. Trustees Executors and Agency Co Ltd v Sargood (1904) 26 ALT 51 at 54 per Hood J; In the Will of Eteson (1927) 28 SR (NSW) 119 at 122 per the CJ in Eq. See, for example, In the Goods of Heath [1892] P 253. As to this presumption, see 5.43–5.45. See 4.61–4.67. See, for example, In the Goods of Truro (1866) LR 1 P & D 201. See 4.53–4.56 (but note the modern ouster or qualification of this principle: see 4.57–4.60). See, for example, Anderson v Anderson (1872) LR 13 Eq 381. See 6.3. (1944) 69 CLR 121 at 134; BC4400028. See generally Green v Tribe (1878) 9 Ch D 231 at 234–9 per Fry J. See 7.23. See 7.13. See 7.71. Powys v Mansfield (1837) 3 My & C 359 at 367; 40 ER 964 at 971 per Lord Cottenham. See further Fairweather v Fairweather (1944) 69 CLR 121; BC4400028; J D B Mitchell, ‘The Present State of Testamentary Republication’ (1954) 70 LQR 353. Re Archibald [1992] 2 NZLR 109 at 114 per Tipping J. Namely Wills Act 1837 (UK) s 22, as to which see Theobald, pp 137–40. Goldie v Adam [1938] P 85 at 89 per Bucknill J. ACT s 22(1); NSW s 15(1); NT s 17(1); Qld s 17(1); SA s 25(1); Tas s 19(1); Vic s 16(1); WA s 16(1). ACT s 22(2); NSW s 15(2), (3); NT s 17(3), (4); Qld s 17(2), (3); SA s 25(2); Tas s 19(2), (3); Vic s 16(2), (3); WA s 16(2). ACT s 22(3); NSW s 15(4); NT s 17(2); Qld s 17(4); Tas s 19(4); Vic s 16(4); WA s 16(3). As to the operation of the judicial dispensing power in this context, see 6.20, 6.21. In the Goods of Hodgkinson [1893] P 339. As to the doctrine of dependent relative revocation, see 5.16–5.22. See, for example, Powell v Powell (1866) LR 1 P & D 209. See, for example, Rogers v Goodenough (1862) 2 Sw & Tr 342; 164 ER 1028; Re Watson (deceased) (1887) 13 VLR 599. (1868) LR 1 P & D 575 at 578. Goldie v Adam [1938] P 85 at 92 per Bucknill J. McLeod v McNab [1891] AC 471 at 475 per Lord Hannen (PC); In the Goods of Dennis [1891] P 326; Goldie v Adam [1938] P 85; Re Dear (deceased) [1975] 2 NZLR 254. See, for example, McLeod v McNab [1891] AC 471 at 476 per Lord Hannen (PC) (opining that the

48. 49. 50. 51. 52. 53. 54. 55. 56.

57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71.

word ‘confirm’ is ‘an apt word, and expresses the meaning, and has the operation of the word “revive,” which is used in the statute’). Cf Goldie v Adam [1938] P 85 (where on the facts the words ‘the last will’ and ‘I confirm’ in the codicil were found insufficient for this purpose). See, for example, In the Will and Codicil of Littlejohn (1952) 69 WN (NSW) 129. [1974] 2 NSWLR 231. In the Estate of Brian (deceased) [1974] 2 NSWLR 231 at 233–4. (1920) 20 SR (NSW) 531. See, for example, Marsh v Johnston (1860) 1 Sw & Tr 528; 164 ER 845; In the Will of Eteson (1927) 28 SR (NSW) 119. In the Estate of Horne (1920) 20 SR (NSW) 531 at 533. [1952] P 279. As to revocation of wills by marriage, see 5.23–5.34. See, for example, Re Marrie [1938] SASR 289; In the Will and Codicil of Littlejohn (1952) 69 WN (NSW) 129; Re Dear (deceased) [1975] 2 NZLR 254; In the Estate of Jones (deceased) (1979) 21 SASR 46. [2000] TASSC 70; BC200205468. Re Estate of Denger (deceased) [2000] TASSC 70; BC200205468 at [11]. See 6.13. See 6.7–6.9. ACT s 22(2); NSW s 15(2), (3); NT s 17(3), (4); Qld s 17(2), (3); SA s 25(2); Tas s 19(2), (3); Vic s 16(2), (3); WA s 16(2). See, for example, In the Estate of Mardon [1944] P 109. See, for example, In the Estate of Horne (1920) 20 SR (NSW) 531; In the Estate of Jones (deceased) (1979) 21 SASR 46. See, for example, Re Pearson (deceased) [1963] 2 All ER 763. See, for example, In the Goods of Stedham (1881) LR 6 PD 205. As to judicial dispensing powers, see 4.30–4.52. (1994) 34 NSWLR 539. See 5.23. Trickey v Davies (1994) 34 NSWLR 539 at 546. Trickey v Davies (1994) 34 NSWLR 539 at 546. (1985) 39 SASR 131. (2013) 85 NSWLR 253; [2013] NSWSC 522; BC201302460 at [33]–[35], [48]–[57].

[page 169]

CHAPTER 7

Gifts by Will Types of Testamentary Gifts ‘Devises’ and ‘bequests’/‘legacies’ Sub-classifications of ‘devises’ and ‘bequests’ ‘Specific’ devises and legacies ‘General’ legacies ‘Demonstrative’ legacies ‘Pecuniary’ legacies ‘Residuary’ devises and legacies

7.2 7.2 7.3 7.4 7.5 7.7 7.9 7.10

The Doctrine of Lapse The concept of ‘lapse’ Exceptions to the doctrine Gifts to discharge a beneficiary’s obligation(s) Gifts for charitable institutions Statutory prevention Class gifts Joint tenancies

7.13 7.13 7.16 7.16 7.18 7.19 7.21 7.22

Ademption at Common Law The common law concept of ademption Doctrine confined to specific gifts Doctrine not grounded in testator’s intention Impact of changes in nature of a specific gift Interaction between common law ademption and the wills legislation Application of common law ademption to contracts and options Common law ademption by acts of a third party Disposal via fraudulent or tortious acts by third parties

7.23 7.23 7.25 7.26 7.27 7.29 7.32 7.34 7.34

Disposal by third party on behalf of testator who lacks capacity — general law Disposal by third party on behalf of testator who lacks capacity — statutory initiatives

7.35 7.38

Disclaimer of Testamentary Gift

7.42

Forfeiture of Testamentary Gift for Killing ‘Forfeiture rule’ Parameters of the forfeiture rule Matters going to proof Moral culpability — murder versus manslaughter Effect of forfeiture — the destination of the property interest

7.47 7.47 7.48 7.50 7.51 7.56 [page 170]

Wills Intestacies Joint tenancies Statutory intervention: Australian Capital Territory and New South Wales

7.57 7.64 7.66 7.68

Satisfaction in Equity Presumption as between testators and creditors Identity of amounts Time of payment Direction to pay debts Legacy being a share of the residue Presumption in respect of persons in loco parentis

7.71 7.72 7.74 7.76 7.77 7.78 7.79

Ademption in Equity Nature of equitable ademption Presumption of ademption in equity Classes of case where ademption in equity is presumed Legacy and gift/advance to be ejusdem generis Subsequent advance by parent (or person in loco parentis) Operation of the presumption

7.81 7.81 7.82 7.82 7.83 7.84 7.84

Rebuttal of the presumption Date at which valuation of property adeemed Subsequent advance for a specific purpose Election in Equity Nature of election in succession law ‘Dual gifts’ Gifts to which doctrine applies Ouster of doctrine where intention inconsistent with it ‘Mutual obligations’

7.85 7.87 7.88 7.89 7.89 7.90 7.90 7.91 7.93

7.1 This chapter examines the effect of gifts made under a will. It commences by identifying the terminology surrounding different types of testamentary gifts, and explaining the occasions in which the type of gift can generate different legal consequences. Consideration then turns to the various ways in which a gift by will nevertheless fails. The doctrines of lapse, common law ademption, disclaimer and forfeiture are considered. The chapter concludes with an examination of how doctrines sourced from equity — namely the equitable doctrines of satisfaction, ademption and election — impact on testamentary gifts.

Types of Testamentary Gifts ‘Devises’ and ‘bequests’/‘legacies’ 7.2 There are two basic types of testamentary gift: a ‘devise’, which is a gift of realty; and a ‘bequest’, being technically a gift of personal property. Originally a third type, a ‘legacy’, was used to describe a gift of money only, but over time has come to mean a gift of personal property generally, thus largely displacing the word bequest. Nowadays, in place of such technical words, [page 171] the terms ‘disposition’ or ‘gift’ are often used in will drafting.1 This is also

driven by the fact that the distinction between realty and personalty, though once potentially significant in succession law,2 is of little consequence in the modern law.

Sub-classifications of ‘devises’ and ‘bequests’ 7.3 Devises have been classified as either specific or residuary, whereas legacies have been subdivided into five types: specific, general, demonstrative, pecuniary and residuary.3 Each is explained below.

‘Specific’ devises and legacies 7.4 A ‘specific’ devise or legacy is a specific gift of some part of the testator’s estate, which is identified and separated from the rest of the estate. As described by a Canadian judge:4 A ‘specific legacy’ (which term I use as being inclusive of a specific devise) is a gift by will of a particular thing forming part of the testator’s estate or of a specified legal or equitable interest, such being described in a sufficiently explicit manner in the will as to enable it to be identified and separated from the mass of the testator’s estate inclusive of other things of the same kind, if any, and which is satisfied by the executor by delivery of the particular thing or by appropriate transfer of such interest to the legatee. The testator’s gift is of a particular thing or interest that the testator intends the legatee to receive and have in its own form and essence.

A specific gift is usually preceded by the pronoun ‘my’, which normally evinces the necessary intention that the item is to pass under the will, say, ‘I devise my freehold known as Rose Cottage and situated at Lisdillon to X’ or ‘I give all my classic books to Y’. However, even in the absence of the word ‘my’, construction of the will as a whole may indicate that the testator intended to separate the item in question from the rest of his or her property. Specific gifts may include items of a fluctuating nature, so that the relevant subject matter may be capable of decreasing or increasing between the date of the will and the date of death. In the case of the specific gifts of ‘all my silverware to Y’ or ‘all my shares in X Company to Z’, for instance, the respective beneficiaries will take any additional silverware or shares purchased after the date of the will and still held by the testator at his or her death.5

‘General’ legacies

7.5 Unlike a specific devise or legacy, a ‘general’ legacy pays no reference to the actual state of the testator’s property. As a gift to be satisfied ‘out of the general assets of the estate without regard to any particular fund, thing or things’, it ‘does not require the delivery of any particular [page 172] thing forming part of the testator’s estate or the transfer of any legal or equitable interest of which the testator was possessed to the legatee’.6 In other words, there is no legal requirement that the testator actually owns the property the subject matter of the gift at the date of death. So, for example, ‘a gift of 10,000 shares in Y Co Ltd’ is classified as a general legacy if it transpires that the testator owns no shares in that company at his or her death (or even while living). The legacy is to be met out of the general estate.7 This obliges the executors to purchase property of the description for the beneficiary (usually within 12 months of the testator’s death),8 or alternatively pay him or her its value.9 But if that sum cannot be ascertained, the legacy fails for uncertainty.10 7.6 Courts, it has been observed, traditionally lean towards the construction of legacies as general rather than specific, almost to the extent that legacies are prima facie construed as being general.11 Although gifts of shares have, accordingly, been held to be prima facie general,12 this does not preclude such a gift from being a specific legacy if this reflects the testator’s intention as expressed by testamentary language. Gifts of ‘my shares in X Co’, or even ‘1000 shares in X Co’, for instance, will be regarded as specific if the testator owns the (exact amount of, in the second example) shares at death.13

‘Demonstrative’ legacies 7.7 A ‘demonstrative’ legacy has certain attributes of both specific and general legacies (and thus has been described as a ‘hybrid’).14 It is a gift of a general nature (usually money)

[page 173] that, however, is directed to be paid out of a specified fund or a particular part of the testator’s estate. As explained again by a Canadian judge:15 It is an unconditional gift of a specified amount accompanied by a reference to a particular fund or source for payment thereof. In the case of a specific legacy the testator earmarks the particular thing or interest he intends to give to the legatee. In the case of a demonstrative legacy he earmarks not a particular thing or interest but a particular fund from which he wishes the legacy to be satisfied. In the case of a general legacy he earmarks nothing and such becomes payable out of the general assets of the estate. Thus, as a specific amount or quantity is given, a demonstrative legacy is a legacy of ‘quantity or number’ and is of the nature of a general legacy. By reference to a particular fund from which he desires the legacy to be paid, a demonstrative legacy is of the nature of a specific legacy. Therefore, when a Court finds from an examination of the whole of the testator’s will that his intention was to give the legatee the amount specified in the legacy and that its payment was charged upon a particular fund, then the legacy is a demonstrative one.

A testator may, say, make a gift of ‘$20,000 to be paid out of my bank account at X Bank Ltd’. If his or her intention is that the gift be demonstrative (and not specific), it is not fatal to the gift that the bank account balance is inadequate to satisfy the gift, as the shortfall is satisfied by the general estate of the testator. Thus in Re Webster16 the testator gifted his son ‘the sum of £3000 to be paid to him out of the share of my capital and loans in the business of [W & B]’. On the testator’s death the business was worth less than the specified sum. Construing these words as meaning ‘to be paid to him primarily out of the share’ rather than ‘to be paid to him only out of the share of the capital and loans’17 led Lord Wright MR, with whom Romer and Greene LJJ agreed, to view the gift as a demonstrative legacy. Accordingly, the son received not only the value of the reduced business, but was also entitled to call upon the general estate to make up the difference. Had the gift been construed as being ‘specific’, it would have been adeemed.18 7.8 Judges have conceded that the distinctions that determine the class into which a particular gift is to fall are ‘sometimes very fine’,19 although this is not unexpected in an area so heavily dependent on impressions of a testator’s intentions. An illustration ostensibly on the other side of the line is Re Walton,20 where the testator executed a will instructing her trustee to sell her business, settle the proceeds on trust for its employees, and then pay an additional benefit to certain employees. After making the will the business was

converted to a limited company, and the testator sold her shares in that company, the proceeds of which were traceable into her bank account. Reed AJ held that the only intention disclosed by the will was that the sums were to be paid to the employees out of the proceeds of the sale of the business, but not apart from this. The gifts were not demonstrative but specific, and failed as having been adeemed by the sale.

‘Pecuniary’ legacies 7.9 A ‘pecuniary’ legacy is a gift of a sum of money, which may be specific, general or demonstrative.21 It is most commonly a general legacy, but it can be specific, say, ‘all the money contained in the first drawer of my desk’. [page 174]

‘Residuary’ devises and legacies 7.10 A residuary devise or legacy technically comprises all property not already disposed of by the will, after the payment of debts, liabilities and other devises or legacies thereunder.22 If a legacy or devise fails for any reason, usually on the grounds of lapse or uncertainty, its subject matter becomes part of the residuary estate, unless the will expresses a contrary intention.23 The wills legislation reflects the general law to this end.24 In Re Leitch,25 for example, the testator left a life interest in a 50 acre property and residence to her nephews and nieces. After the expiry of these interests, it provided that the estate was to be sold and divided, but failed to specify the intended recipients. The gift thus failed because its objects were not specified with sufficient certainty. However, as a residuary clause left the residue to the Presbyterian Church, there being no contrary intention in the will, the failed gift fell into the residuary estate and went to the church. 7.11 If the residuary gift itself should fail, at general law that part of the estate falls to be distributed according to the intestacy rules.26 However, excepting the Australian Capital Territory and South Australia, the wills legislation avoids this outcome in some circumstances. It states that a disposition of all, or the residue, of the estate of a testator that refers only to

the testator’s real estate, or only to his or her personal estate, is to be construed to include both the real and personal estate of the testator.27 By declaring that a residuary gift of either realty or personalty is deemed to include both, this avoids potential drafting mistakes by (possibly) lay testators, and with this the failure of a gift. It thereby supplements the presumption against intestacy.28 The legislation adds that, if a part of a disposition in fractional parts of all, or the residue, of the testator’s estate fails, the part that fails passes to the part that does not fail and, if there is more than one part that does not fail, to all those parts proportionally.29 In Re Gibson (deceased),30 for example, the deceased provided for the balance of her residuary estate to be divided between four beneficiaries in equal shares. The issue was whether a disclaimer by one beneficiary meant that her share in the residuary estate passed on intestacy or instead to the other residuary beneficiaries. Mullins J characterised the gift under the residuary clause as a disposition in fractional parts of the residue, as its effect was to dispose of the residuary estate in [page 175] fractional parts, with the fraction being determined by the number of survivors.31 Accordingly, the disclaimed share passed proportionately to the other residuary beneficiaries.32 But the foregoing has no application if the testator did not dispose of that fractional part originally.33 Nor does it apply if a contrary intention appears in the will,34 say, if it makes separate residuary dispositions of both realty and personalty. If so, a failure of either gift will give rise to a partial intestacy. 7.12 Care should be taken with respect to the distinction between residuary and specific gifts and the legal concept of ‘particular residue’.35 If a gift classified as ‘particular residue’ lapses, the particular residue passes to the beneficiary of that particular residue, not under a general residuary clause. The problem is acute when a testator makes a will containing a particular residue clause relating to a particular fund, but also a general residuary clause. If the particular residue can be classed as a true residue, it will be effective. This very much depends upon the construction of the will in question. A leading case is

Patching v Barnett,36 where the testator gave four specified pictures for the use of the National Gallery and gave the rest of his pictures ‘not therein specifically bequeathed’ to his wife, followed by a gift of the residue of his personal estate ‘not therein specifically bequeathed’. The National Gallery declined the specified pictures, and it was held that they did not pass to the widow under the particular residuary gift, but to the residuary legatees as part of the general residuary personalty. The following remarks of Malins VC are instructive in this regard:37 The question is, what is the intention of the testator? He conceived that he had made an effective gift of these four pictures … And then he says in effect — ‘All the other things of the same description I give to my wife; but I do not give her anything herein or by my codicil specifically bequeathed’. Now, are these pictures specifically bequeathed or not? They are. They are expressly and specifically named. They are given to the National Gallery. Supposing the testator had said, I give all the others except those four pictures (using the very same words and repeating the description of them), who would have said then that they would pass to the wife? In my opinion, it is just the same as if he had said, ‘I give all the pictures except those which I bequeath to the National Gallery or which are herein specifically bequeathed’. It never could have entered the testator’s mind that the National Gallery would refuse to accept the pictures. An event has happened which the testator never could have contemplated. What he would have said if he had been told that the National Gallery would not receive these pictures is, of course, a matter of conjecture only. He might have said, ‘I direct them to be sold’, or something of that kind; but that he did not intend to give them to his wife I think is sufficiently indicated by the words to which I have referred.

A more recent illustration is In the Estate of MacGregor (deceased),38 where a testator bequeathed certain paintings to named beneficiaries, including ‘my paintings in oils of White Roses’ to her sister, before gifting ‘the balance of my pictures, paintings, prints, engravings and drawings’ to the Art Gallery Board. After making further specific gifts, she gave ‘the balance of my household furniture and effects’ to such of three named sisters as should survive her. The residuary estate [page 176] was given upon certain trusts for her sisters and their children. As the sister to whom the painting White Roses was bequeathed predeceased the testator, that gift lapsed. The Art Gallery Board’s contention that the gift to it carried the lapsed gift, on the ground that it was a case of a ‘particular residue’, failed on

construction of the will. Jacobs J reasoned as follows:39 … it seems to me that there is a clear distinction between ‘the balance of my paintings’ following a specific gift of certain paintings, and ‘the balance then remaining (hereinafter called “my residuary estate”)’ after all prior gifts, which can take effect, have taken effect. The result would … be different if the testatrix had given to the Art Gallery Board the ‘balance of my paintings not hereinbefore disposed of’ for there is ample authority for the view that this would mean ‘not hereinbefore effectually disposed of’40 … and such words would carry a lapsed gift of a particular painting. But that is not the language that the testatrix has used, and I do not think those words should be imported … To do so would not only defeat the intention disclosed by the language which the testatrix has in fact used, but it would also seem to me to run counter to her intentions as disclosed by the general scheme of the will.

The painting therefore passed under the general residuary clause.

The Doctrine of Lapse The concept of ‘lapse’ 7.13 If a beneficiary of a testator’s bounty predeceases the testator or, other than in South Australia and Western Australia, does not survive the testator for a period of 30 days41 (subject to a contrary intention in the will),42 the gift ordinarily fails because it ‘lapses’. In this event, the deceased beneficiary’s personal representatives cannot claim the disposition. If the gift is not residuary, it falls into the residuary estate. If the gift itself is residuary, it falls to be distributed according to the intestacy rules.43 7.14 The lapse doctrine is a product of the ambulatory nature of a will, namely that it has no effect until the death of the testator.44 Before this date a testator can, after all, alter or revoke the will, and thereby deny the beneficiary an expectation of bounty. It follows that, should the beneficiary predecease the testator, the subject matter of the gift cannot vest in the beneficiary, as he or she no longer has the capacity to take it at the date of the testator’s death. 7.15 A testator may prevent lapse via an appropriate ‘substitutional’ clause that makes provision for an alternative disposition in the event that the intended beneficiary is no longer alive or in existence at the testator’s death.45 For example, a testator gifts property to his sister, but adds ‘that if she predeceased me, I leave [the property] to my brother’.46 Or the will may circumvent the doctrine of lapse via an alternative disposition to the personal

representatives [page 177] of the intended beneficiary,47 who then hold the disposition in trust for those who take the estate of the intended beneficiary.48

Exceptions to the doctrine Gifts to discharge a beneficiary’s obligation(s) 7.16 If a testator intends that a testamentary gift discharge an obligation owed by the intended beneficiary, which obligation remains extant when the will takes effect, it may be that the beneficiary’s death does not cause the gift to lapse. The logic is that, while the beneficiary may no longer be alive, the relevant obligation survives the testator’s death, and so should be fulfilled. The chief expression of this exception from the lapse doctrine is found in a dictum of Farwell J in Stevens v King49 to the following effect: … if the Court finds, upon the construction of the will, that the testator clearly intended not to give a mere bounty to the legatee, but to discharge what he regarded as a moral obligation, whether it were legally binding or not, and if that obligation still exists at the testator’s death, there is no necessary failure of the testator’s object merely because the legatee dies in his lifetime; and therefore death in such a case does not cause a lapse.

So in Re Leach,50 for example, where the testator in her will recited a debt owed by her son to one P at the time of her son’s death, and directed her executors ‘to pay the sum of £1000 to the said P’, Vaisey J held that there had been no lapse notwithstanding that P predeceased the testator. His Lordship, in reaching this view, remarked that ‘[t]his is not an ordinary legacy of a sum of money; it is a direction to the executors to pay the actual sum “the said sum” which [P] had in fact paid to the son of the testatrix and in respect of which he was indebted to [P] at the date of the codicil’.51 7.17 As the relevant principle is grounded in the testator’s intention that the beneficiary discharge an existing obligation, it is arguably not confined to legal obligations of the beneficiary, but can encompass obligations that are statute-

barred (usually due to limitation) or, as acknowledged by Farwell J above, even moral obligations. At the same time, it may be that it is confined to the discharge of debt-like obligations.52

Gifts for charitable institutions 7.18 By definition, a gift directed to charitable objects is a purpose gift. If it transpires that the purpose cannot be carried out — it may be impossible or impracticable to do so — the gift would in principle lapse. However, from early times courts assumed a jurisdiction, to give effect to a testator’s ‘general charitable intention’, to apply the subject matter of the gift to an object cy-près (as near as possible) to the identified object.53 Other than in the territories, a more encompassing, ultimately subsuming, equivalent jurisdiction is now conferred by statute.54 A typical scenario involves a gift to a charitable organisation that ceases to exist before the testator’s death. If the court can construe the gift as evincing a general charitable intention on the part of the testator, which in this context is almost presumed, the gift does not lapse but can be applied in favour of an organisation with objects as near as possible to those of the defunct organisation. Importantly, if the court is satisfied that there is a successor institution, there is no need for a cy-près application because there is no lapse in this event. [page 178] The foregoing is illustrated by Public Trustee v Cerebral Palsy Association of Western Australia Ltd.55 The testator gifted his estate to the Spastic Welfare Association, with a gift over to the Salvation Army (Western Australia) Property Trust should the Association no longer exist at the date of his death. The Association was dissolved after the will was made, and its property vested in the respondent. Lapse did not occur as Barker J found that, for all practicable purposes, rather than ceasing to exist, the Association was subsumed by the respondent. Even if the Association ceased to exist, the gift was saved from lapsing by the testator’s general charitable intention, and so

could be applied cy-près, here in favour of the respondent.

Statutory prevention 7.19 The wills legislation provides for prevention from lapse in defined circumstances. Other than in South Australia,56 the schemas reveal close parallels. Generally speaking, the legislation applies where a testator makes a gift to a person who is his or her issue (termed the ‘original beneficiary’) but which ‘is not a disposition of property to the testator’s issue’, provided that the original beneficiary’s interest in the property has not ended before his or her death. If the original beneficiary does not survive the testator (for 30 days other than in Western Australia), the issue of the original beneficiary who do survive the testator (for 30 days) take the original beneficiary’s share of the property as if the latter had died intestate leaving only issue surviving.57 So if T makes a will gifting his estate to his son (S1), who has a son (S2), and S1 predeceases the testator, the gift does not lapse; instead S2 takes the gift that S1 would have taken. The rationale underlying the foregoing has been explained as follows:58 [T]he anti-lapse rule corrects testaments that have failed to express the reasonably predictable intention of testators in the unforeseen event of their children predeceasing them leaving issue surviving them. Parents ordinarily assume, even when making a will, and particularly if they make a will without legal advice, that their children will survive them. It is not improper for the law to consider what should be done if it appears that the testator has not contemplated the possibility that he or she is not survived by his or her children.

The statutory provisions are subject to a contrary intention expressed in the will.59 A testator may thus avoid the statutory consequence (and, indeed, the doctrine of lapse) by appropriate substitutional provisions. But a general requirement or condition that the original beneficiary survive the testator or attain a certain age,60 and a disposition of property to issue as joint tenants,61 are identified in several jurisdictions as not revealing a contrary intention for this purpose. Nor do the provisions apply in some jurisdictions if the will required the original beneficiary, as a condition of attaining an interest, to fulfil a contingency that has not been met at the time of death.62 7.20 The equivalent South Australian provision is phrased in simpler terms, which on a superficial reading appear to reflect the substance of its counterparts. Following the original English provision,63 it reads:64 Where any person being a child or other issue of the testator to whom any real or personal estate

is devised or bequeathed for any estate or interest not determinable at or before the death of that

[page 179] person dies in the lifetime of the testator leaving issue and any such issue of that person is living at the time of the death of the testator, the devise or bequest does not lapse, but takes effect as if the death of that person had happened immediately after the death of the testator unless a contrary intention appears by the will.

In essence, it provides that a gift to the issue of the testator does not lapse where the donee predeceases the testator but leaves issue who are living at the testator’s death, subject to a contrary intention appearing in the will.65 Where it differs from its counterparts is in making no provision that the issue of the donee take the gift in that event. The words ‘the devise or bequest does not lapse, but takes effect as if the death of [the donee] had happened immediately after the death of the testator’ raise the possibility that the issue of the donee may not ultimately benefit in respect to the gift. Such an outcome may ensue where the donee has, by will, left his or her property not to the issue, but to others. Though the section prevents lapse, the property devolves upon the beneficiary under the will, and not to the issue. This provision generated considerable litigation in England (and in Australia, where the English section was initially legislated) as to its possible construction, with attempts made to construe it to favour the issue of the donee.66 The debate is now stale in Australia (excepting from South Australia) given that the current section specifically provides for the gift to specifically pass to the issue.

Class gifts 7.21 A class gift is a gift to a group of persons, included and comprehended under a general description, say, a gift ‘to my children’. The law relating to lapse has little scope to play here. A testator who leaves a gift to a class of persons is taken to intend to benefit the persons in the class at or after his or her death. Thus, a child of the testator who predeceases the testator never in reality becomes a member of the class. The same applies even if the class at the testator’s death consists of only one person.67 There can only be lapse if no

one qualifies to be a member of the class at the date of death (and any gift over has also failed).68 Nevertheless, the anti-lapse legislation, discussed above, is phrased in terms applicable to class gifts. Thus it appears that courts must ascertain whether any potential member of a class that has predeceased the testator has left issue who survived the testator. If so, the gift to the issue of that member does not lapse. As this is subject to a contrary intention in the will, much rests on the construction of the testamentary words.69

Joint tenancies 7.22 Because a joint tenancy attracts a right of survivorship, should one joint tenant beneficiary under a testator’s will predecease the testator, the entitlement in the surviving joint tenant is correspondingly enlarged, so that the survivor takes the entire gift. In this context, the right of survivorship operates where a testator makes a gift to two or more persons without words of severance, and one of them predeceases the testator. This is not really a case of lapse, but depends upon the special nature of a joint tenancy as compared with a tenancy-in-common. If a testamentary gift is made to beneficiaries as tenantsin-common, the death of one tenant [page 180] before the testator causes his or her share to lapse, unless a substitutional clause or the anti-lapse provisions operate in the circumstances.

Ademption at Common Law The common law concept of ademption 7.23 As a general principle, a ‘specific’ gift70 will fail by ‘ademption’ if its subject matter ceases to exist as part of the testator’s property at the time of death. So if the testator sells the specific property, or it otherwise ceases to exist (say, by being destroyed) before the testator’s death, the gift is ‘adeemed’ — in

this context, meaning in effect revoked — and the beneficiary takes nothing.71 In the event that the property is sold, therefore, the beneficiary cannot trace its proceeds into other property.72 On the same reasoning, nor is the beneficiary entitled to insurance moneys payable if the property in question is destroyed or lost.73 Those moneys instead go to the residuary estate.74 7.24 The common law doctrine of ademption, described above, differs from its namesake in equity. The latter involves a subsequent inter vivos gift adeeming — revoking (or at least partially ousting) — a legacy of the same or similar nature found in the will.75

Doctrine confined to specific gifts 7.25 The doctrine of ademption has no operation as regards ‘general’ gifts, which take effect whether or not the testator (still) owns the property the subject matter of the gift at the date of death.76 Based on the rationale that it is better to save a gift than have it fail, as a starting point the law presumes in favour of a general gift where ademption is in question,77 which presumption is rebuttable by evidence revealing an intention to make a specific gift.78

Doctrine not grounded in testator’s intention 7.26 Whereas the potential application of the doctrine of ademption is confined to gifts the testator intended to be specific, the event(s) that trigger the doctrine are not necessarily premised on inquiry into intention. In other words, for a gift to be adeemed it is not necessary to prove that the testator, by dealing with the subject matter of the gift, intended an ademption to occur. This is essentially assumed from that dealing, and from the gift being intended to be specific in the first place.79 The once-held view that ademption rested upon a testator’s intention has been debunked, as explained by Cozens Hardy MR in Re Slater:80 There was a time when the courts held that ademption was dependent on the testator’s intention, or a presumed intention on his part; and it was therefore held in old days that when a change was

[page 181]

effected by public authority, or without the will of the testator, ademption did not follow. But for many years that has ceased to be the law, and I think it is now the law that where a change has occurred in the nature of the property, even though effected by virtue of an Act of Parliament, ademption will follow …

At the same time, though, a testator’s intention is not entirely irrelevant to the issue. In some circumstances, discussed below, the testator’s lack of knowledge surrounding the disposal of the property in question — and thus the absence of any intention in this regard — has precluded ademption.81

Impact of changes in nature of a specific gift 7.27 The doctrine of ademption does not necessarily frustrate a beneficiary’s expectation whenever there is some change in the nature of the specific gift. If the gift, although changed, is still substantially in existence, there is no ademption. The relevant inquiry is whether the subject matter of the gift ‘has been changed in name and form only, but which is substantially the same thing’.82 If so, the strictness of the principle mollifies. 7.28 Many of the challenges stem from gifts of shares.83 Capital reorganisations, or reconstructions, amalgamations, takeovers and nationalisation may all have the effect of altering the nature of shares an individual holds in an entity. The question is whether that alteration is one of substance, or only in name and form. Decided cases illustrate the distinction, by its very nature one of degree. For example, in Re Slater,84 where the testator held shares in a company that were the subject of a specific gift in his will, the company was taken over by the Metropolitan Water Board in return for which the testator was issued shares in the board. The latter shares were found to differ in substance from the earlier shares, as the two organisations were of a different nature, and so ademption occurred. In Re Gray85 the same outcome ensued vis-à-vis shares held in a banking partnership, unlimited in nature, consequent upon the partnership being converted into a limited liability company. Where the shares have merely been subdivided into shares of a smaller denomination, there is less scope for ademption. In Re Clifford86 a testator bequeathed ‘twenty-three of the shares belonging to me in the London County Banking Company Limited’, at which time he held 104 £80 shares. The

company was amalgamated with another, and the shares were subdivided into four new £20 shares, so that on the testator’s death he held 416 £20 shares. No ademption occurred as the change was in name and form only so that the beneficiary was entitled to 92 of the new £20 shares. Similarly, in McBride v Hudson,87 where the gift was 196 £10 shares in a company, whereupon the company later subdivided each share into 10 shares of £1 value, the High Court found no ademption, and the beneficiary took 1960 £1 shares. [page 182]

Interaction between common law ademption and the wills legislation 7.29 The wills legislation states that, unless otherwise made clear by the will (or even apart from the will in the Northern Territory and Victoria), the property of a testator left by the will comprises the property answering that description at the date of the testator’s death.88 7.30 As regards ademption, problems have arisen in some cases where the testator has left a specific gift, disposes of it, and later acquires a similar item of property. If, say, a testator bequeaths ‘my piano’, disposes of that piano, and later acquires another piano, the question is whether the initial gift is adeemed. A literal reading of the above provision seems to preclude ademption in these circumstances. The position would be otherwise, and a contrary intention expressed, if the will referred to ‘my grand piano’ whereas the replacement was an upright piano.89 Another illustration is found in the judgment of Malins VC in Castle v Fox:90 Suppose a testator has a house in Grosvenor Square, and he says in his will, ‘I give my house in Grosvenor Square’; then suppose he sells the house he had at the date of his will, and buys another in Grosvenor Square; my opinion is (and I have not a doubt about it), that under that general description, ‘my house in Grosvenor Square’, the house would pass. The Legislature says I must read the will as if it were made immediately before the death of the testator. Doing that, I find he has a house in Grosvenor Square, and that must necessarily pass. But if he adds a description shewing that he meant a particular thing only — if, for instance, he says, ‘I give my house No 2, Grosvenor Square’, and if he afterwards sells that house, and buys No 6, I am equally clear that No 6 would not pass, because a contrary intention is expressed. He has sold the house No 2, and has no longer got it, and the devise is adeemed by the sale of that house, and you

cannot apply the general description of ‘my house’ where he has specifically described the house by name. Therefore I am as clearly of opinion that in that case it would not pass, as I am of opinion it would pass in the former case.

An Australian case to this effect is In the Will of Smith (deceased),91 where the testator devised ‘my house and land in Urquhart Street, Coburg’ to his wife. At the time the will was made he owned 44 Urquhart Street, but later purchased 46 Urquhart Street before selling 44. The Victorian Full Court found no ademption, and the wife was therefore entitled to 46 under the relevant section. It was disinclined to discern any contrary intention in that, as Madden CJ observed, absent anything in the will inconsistent with this outcome, ‘[t]here is nothing strange or absurd in assuming that the testator intended to substitute the one house for the other, and left his will unaltered simply because he intended it to pass his house’.92 The facts in Smith can be contrasted with those in Re Gibson,93 where the testator, being possessed of £1000 guaranteed stock in the ‘NB Railway’, bequeathed to J ‘my one thousand NB Railway preference shares’. He thereafter sold his NB guaranteed stock, and died possessed of shares and stock in the NB Railway, acquired by several successive purchases, exceeding the amount bequeathed to J. Sir Page Wood VC found in these facts a contrary intent, and thus an ademption, reasoning as follows:94 … where there is a distinct reference to a distinct and specific thing, and not to a genus, there is sufficient indication of a ‘contrary intention’ to exclude the operation of the rule established by the … Wills Act, and limit the operation of the will to the state of things existing at the date of the will. In this case the testator, at the time of his death, had not this specific stock in any shape.

[page 183] He had parted with it, and acquired by subsequent purchase a much larger number of shares. These subsequent purchases were not in any shape a replacing of the original fund, and there is nothing to lead the Court to suppose that, having once adeemed the specific bequest, the testator has replaced the identical thing. He has distinctly referred to one thing in his will, which was no longer in existence at the time of his death. That thing, and that only, can be considered as the subject of the bequest. I must, therefore, hold that the claim of [J] to have his legacy satisfied out of the New Guaranteed North British Stock existing at the testator’s death, fails.

7.31 Ultimately, High Court dicta suggests, the presence of a contrary intention rests on ‘the meaning of the will construed according to ordinary

principles of construction, and in the light of any extrinsic evidence properly admissible of facts, known to the testator, that existed at the time he made his will’.95 It may, accordingly, be that a contrary intention can appear even if the description in the will of the subject matter of a gift is, in its literal terms, capable of denoting a thing a testator had at death. Yet it may be queried why a court should, as a matter of policy, be keen to find a contrary intention in these circumstances. Certainly the onus lies on the person(s) who allege ademption to adduce sufficient evidence to this end.

Application of common law ademption to contracts and options 7.32 If specific property is bequeathed to a beneficiary, and the testator contracts to sell that property but dies before the contract is completed, ademption will ordinarily occur. So if the executor completes the contract, the beneficiary is not entitled to the proceeds received by the executor.96 The subject matter of the gift, after all, no longer belongs to the testator, as the equitable estate has passed to the purchaser under the contract,97 assuming, of course, that the contract is amenable to an order for specific performance.98 Ademption may be avoided in these circumstances if the court can construe the gift as including the proceeds of sale.99 If, on the other hand, the contract precedes the will containing the specific gift, there is generally little doubt that the beneficiary is entitled to the proceeds of sale, as it reflects the testator’s evident intention.100 7.33 Similar principles apply to options to purchase.101 An option to purchase granted by the testator after the date of the will results in ademption of the specific gift, the subject of the option, even if the option is exercised after the testator’s death. The beneficiary again takes nothing,102 though subject to contrary intention expressed in the will.103 Of course, there will be no ademption if the option is not exercised. As in the case of contracts, if the option is granted before the will, the exercise of the option does not adeem the gift.104

Common law ademption by acts of a third party Disposal via fraudulent or tortious acts by third parties 7.34 That ademption is not, as a general principle, based on a testator’s intention,105 has not precluded recognition of exceptions, chiefly in instances where a testator lacked knowledge [page 184] of circumstances triggering a possible ademption. This may be because the disposal of the relevant property stems from a fraudulent or tortious act of another,106 including a fraudulent or unauthorised action by an agent (including an attorney) of the testator.107 It stands to reason that, as there is in these scenarios no intention by the testator to dispose of the property, there should be no ademption.108

Disposal by third party on behalf of testator who lacks capacity — general law 7.35 The issue of ademption may also arise where a person, appointed to act on behalf of a testator whose mental capacity has lapsed, disposes of property the subject matter of a specific testamentary gift. The seminal case is Re Viertel.109 There the testator made a will devising her house, furniture and effects to beneficiaries, and executed an enduring power of attorney appointing the beneficiaries as attorneys. She subsequently became mentally incapable, thus triggering the attorneys’ authority under the power.110 Pursuant to this authority, the beneficiaries, in ignorance of the will, sold the house and invested the proceeds in the name of the deceased in debenture stock. In ruling that there had been no ademption, so that the beneficiaries were entitled under the will to the proceeds of sale, Thomas J saw the circumstances as justifying an exception to the doctrine,111 placing emphasis both on the attorneys’ action having been in ignorance of the will and the ignorance of the testator of the attorneys’ action. As to the latter, the testator lacked any opportunity to alter the will.

His Honour, albeit with some hesitation,112 grounded this exception in the judgment of Stuart VC in Jenkins v Jones,113 where a testator who gifted his son all his farming stock ‘which shall be in my possession at my decease’ later became mentally incapacitated and unable to manage his affairs. The testator’s wife and son sold the stock, and deposited the proceeds in a bank account, which proceeds were paid into the son’s account upon the testator’s death. In ruling that the gift had not been adeemed, Stuart VC reasoned as follows:114 The farming stock ceased to exist, but the money was placed in a bank and there remained, and it clearly represented the value of the subject matter of the bequest. The person who changed the character of the chattels was the legatee, to whom and for whose benefit they had been specifically bequeathed … I think that as it was by no act of the testator that the chattels were converted, for he never intended any conversion, but intended that the specific legatee should have his farming stock, I ought to refuse the motion … The intention of the testator in this case is clear. The conversion of the stock was inevitable, and I cannot hold that the specific legatee’s claim to the proceeds ought to be rejected.

Although Thomas J, in ruling as he did, may indeed have gone beyond Jenkins v Jones, which arguably is no more than an illustration of the existing ‘exception’ of a third party’s actions without lawful authority,115 the tide of subsequent Australian case authority, until recently, endorsed this [page 185] (further) exception to the doctrine of ademption.116 The exception is ostensibly based on the deceased’s presumed intention, so that the court must be satisfied that ‘the deceased, if possessed of testamentary capacity, would have intended the donee of the asset in the will to have the remaining proceeds of sale’.117 In each case, it also presupposes that the remaining proceeds of the sale are identified with sufficient certainty. If so, the exception may apply, it seems, whether or not the person effecting the sale knew of the terms of the will, although the relevant case law in this regard targets instances of applications by a public officer to have the testator’s home sold to fund nursing home accommodation.118 The Viertel exception has, more generally, been justified as a matter of policy, namely:119 People are living longer than in the past and their physical health is outlasting their mental capacity. It is commonplace for properties owned by incapacitated persons to be sold under the authority of enduring powers of attorney, to fund accommodation bonds and other necessities

and comforts for an aging population. Further … there is no good reason why the position should be different if, in the absence of an applicable enduring power of attorney, it is necessary to appoint an administrator under the [guardianship legislation] to sell property of an incapacitated person for such purposes.

7.36 Notwithstanding this groundswell of case authority, in RL v NSW Trustee and Guardian120 a detailed review of the history of English lunacy laws led Campbell JA, with whom Young JA and Sackville AJA agreed, to emphatically reject Re Viertel and its progeny. There the testator devised a lockup garage to A, the residue being left to RL (the testator’s eldest niece) and her two siblings. When the testator lost mental capacity, RL was appointed as the testator’s financial manager by the Guardianship Tribunal, pursuant to which RL sold the garage. The issue of ademption was triggered by a statutory provision providing for the court to direct the investment of the proceeds from the sale of a specific bequest in a separate fund,121 which order was made vis-àvis the sale proceeds ($75,000) in the circumstances. RL challenged this decision. Campbell JA concluded, notwithstanding Re Viertel, that had the testator retained mental capacity and sold the garage, the bequest to A would have been adeemed. The same therefore ensued when RL sold the garage with proper legal authority, aside from the above statutory [page 186] provision.122 The historical review led Campbell JA to brand Re Viertel as an unjustified extension to the established exceptions to ademption, and too broad a reading of Jenkins v Jones. His Honour added that the approach in Re Viertel would render otiose a provision in the New South Wales powers of attorney legislation, which has counterparts directed to the same object in Queensland, South Australia and (most recently) Tasmania, that empowers the court to redress inequity in this context, each discussed below.123 7.37 As a result of RL v NSW Trustee and Guardian, the law in New South Wales is now clear. That it has since been followed in Queensland124 suggests a shift from the Re Viertel approach. The area nonetheless remains one ripe for legislative reform. In the meantime, prudent will-makers are well advised, it has

been suggested, to take ‘preventative action’ to reduce the prospect of an adeemed gift by including a substitute arrangement if the gifted asset no longer exists at their death, say, via the gifting of the proceeds from its sale.125 Providing the attorney a copy of the will,126 moreover, may lessen the likelihood of the attorney inadvertently disposing of the asset.

Disposal by third party on behalf of testator who lacks capacity — statutory initiatives 7.38 Specific statutory provisions affect the above analysis, as regards powers of attorney in particular. In New South Wales and Tasmania statute declares that a person named as a beneficiary (‘named beneficiary’) under the will of a deceased principal who executed an enduring power of attorney has the same interest in any surplus money or other property arising from the attorney dealing with property under the power as he or she would have had in that property had no dealing been made.127 That surplus money or other property is taken to be of the same nature as the property sold, mortgaged, charged, disposed of or dealt with.128 The legislation therefore ousts the operation of the doctrine of ademption in these circumstances. The court can, however, alter this outcome if it considers that the outcome would result in ‘one or more named beneficiaries gaining an unjust and disproportionate advantage, or suffering an unjust and disproportionate disadvantage, of the kind not contemplated by the will of the deceased principal’.129 In this event, the court may make such other orders as it thinks fit to ensure that no named beneficiary gains such an advantage or suffers such a disadvantage. And any such order may provide that it has effect as if it had been made by a codicil to the will of the deceased principal executed immediately before his or her death.130 7.39 In South Australia statute vests the Supreme Court with an equivalent jurisdiction, subject to the same basic parameters — it likewise applies ‘to ensure that no beneficiary gains a disproportionate advantage, or suffers a disproportionate disadvantage’ — triggered by the death of a principal of an enduring power of attorney where, at his or her death, in consequence of an exercise of power by the attorney when the principal was suffering legal incapacity, the share of any beneficiary under the principal’s will has been

affected.131 The foregoing presumably covers cases of ademption. [page 187] 7.40 The Powers of Attorney Act 1998 (Qld) adopts a different schema, albeit aimed at a similar objective. It states that if a person’s benefit in a principal’s estate — whether under the principal’s will, on intestacy or by another disposition taking effect on the principal’s death — is lost because of a dealing with the principal’s property by an attorney (even if the person whose benefit is lost is the attorney in question), the person, or the person’s personal representative, may apply to the Supreme Court (or the Queensland Civil and Administrative Tribunal)132 for compensation out of the principal’s estate.133 The compensation cannot exceed the value of the lost benefit.134 The foregoing applies to enduring and non-enduring powers, as well as to attorneys under powers made other than under the Act.135 But the provision is confined to where there has been an ademption, rather than to alter the circumstances where an ademption occurs at general law.136 If there has been no ademption, therefore, there is nothing upon which the section can operate. This makes calls for the Queensland provision to align with that in New South Wales (and Tasmania) unsurprising.137 7.41 Parallel provisions exist in most jurisdictions relating to persons subject to guardianship orders.138 For example, the Victorian provision gives those persons the ‘same interest in any money, or other property arising from any sale, mortgage exchange, partition, or other disposition’ of property made by the guardian. And it explicitly extends this to the person’s ‘heirs, executors, administrators, next of kin, devisees, legatees and assigns’. A liberal construction of the section is justified, it has been said, because its purpose is to ‘save gifts made by the protected person which would otherwise be adeemed by activities carried out, not by the protected person, but by his or her administrator, who may know nothing of the contents of the protected person’s will’.139 In Daniels v Scrivenor,140 for example, an administrator had been appointed in respect of a testator’s affairs. By an earlier will, the testator had left a specific

gift of money in a particular account to beneficiaries. The administrator withdrew a substantial sum from that account, [page 188] which he reinvested in a higher yielding investment. Gray J held that no ademption had occurred, even though the change in the asset was substantial and not merely in name and form, as the administrator’s action fell within the statutory powers, thus triggering statutory protection for the beneficiaries. His Honour noted that one of the most commonplace and likely activities of an administrator is to withdraw money that is the subject of a specific legacy, and that ‘[i]f the withdrawal of funds defeated such a legacy, it would represent a serious deficiency in the effectiveness of [the section]’.141 As a matter of logic and principle, therefore, the same statutory protection should extend to authorised acts of disposition made by an attorney under an enduring power of attorney142 but, as discussed above, only four jurisdictions have done so (though it has been recommended in Victoria,143 and seems likely to take statutory effect some time in 2017).144

Disclaimer of Testamentary Gift 7.42 A beneficiary under a will or intestacy cannot be forced to accept the benefit, but may disclaim it. Holroyd J explained the point in the early nineteenth century, speaking of a devise, as follows:145 I think that an estate cannot be forced on a man. A devise, however, being prima facie for the devisee’s benefit, he is supposed to assent to it, until he does some act to shew his dissent. The law presumes that he will assent until the contrary be proved; when the contrary, however, is proved, it shews that he never did assent to the devise, and, consequently, that the estate never was in him.

A beneficiary may choose to disclaim a gift for one or more of a variety of reasons. In some instances, it may be because the conditions attached to it are unacceptable or onerous. The gift may be subject to such liabilities as may not make it worthwhile, such as in a leasehold interest that is dilapidated and casts the onus of repair on the beneficiary. However, a disclaimer of a conditional

gift does not preclude the beneficiary taking the gift, unconditionally, pursuant to the intestacy rules where they apply in his or her favour.146 Other financial conditions may prompt a disclaimer, particularly in matters of taxation so as to avoid a taxation liability that comes with the gift.147 Disclaimer may, alternatively, be due to personal considerations or sentiment.148 7.43 The following core principles explain the nature and operation of a disclaimer.149 First, a disclaimer does not amount to a disposition of property. Its effect is not to divest the disclaimant of the property disclaimed, but to prevent it from vesting in him or her in the first place.150 Not being a disposition of property, a disclaimer may be made by deed,151 in writing and by conduct.152 The position is different where the action of the beneficiary is instead properly [page 189] characterised as an assignment of his or her existing or future benefit under another’s will. In this event, the requirements for an assignment must be met.153 Second, as a general principle, disclaimer may be made at any time before the beneficiary has derived any benefit from the gift, but not after acceptance of the gift. Just as disclaimer can be effected by conduct, so can acceptance for this purpose.154 There is some suggestion in the cases that a disclaimer could be effective even after acceptance if it causes no prejudice to others,155 but its correctness may be doubted. Even if it is correct, there are indications that it is limited to testamentary gifts as opposed to inter vivos gifts,156 and even in this context may be confined to occasions where the disclaimer was prompted by the beneficiary’s misunderstanding of the conditions to which the gift was subject.157 A beneficiary can, in any case, legitimately defer a decision to disclaim until the executorial function is complete; before this ‘the nominated beneficiary is free to choose whether to avail himself or herself of the bequest or to disclaim it’.158 Third, if there is a disclaimer, the gift is avoided and, with it, the concomitant right to disclaim.159 This stems from a disclaimer being ‘a solemn

irrevocable act’,160 although this presupposes that it was made with full knowledge of the extent and nature of the gift and with an intention to disclaim. The latter is determined by reference to an objective assessment of the words and acts of the alleged disclaimant, not merely upon his or her protestations of intention. In Re Bisset (deceased),161 for example, the deceased bequeathed to the respondent (the Royal Australian Institute of Architects) money for an academic scholarship. In response, the respondent raised concerns about the will’s terms and guidelines for administering the gift, in particular that these were ‘too restrictive or require[d] clarification and thus [made] the gift too impractical’ to administer ‘in accordance with its expressed terms’. The executors treated this as a disclaimer of the gift, which Mullins J upheld against the respondent’s claim, reasoning that its language amounted to a rejection of the gift.162 7.44 Fourth, if two or more separate and independent gifts are left to the one beneficiary, disclaimer may be made of one and not others.163 Much will rest upon construction of the will to ascertain whether the gifts are truly independent, and whether the will expresses an intention that the beneficiary is to take ‘all or nothing’. If the gift is of residue, though, all the assets making up the residue must be taken or disclaimed.164 7.45 Fifth, a person cannot disclaim what is only an expectancy (although it may be assigned).165 Before the testator’s death, a beneficiary under a will has a mere hope of benefiting thereunder, as the will, being ambulatory in nature,166 can be revoked or varied at any time [page 190] before that event.167 There is, accordingly, nothing that can be disclaimed until the death of the testator, at which time the will takes effect. In Re Smith (deceased)168 the defendant executed a deed disclaiming all benefits in his favour that would arise on his mother’s death. His mother later left him and his brother personal chattels and the residuary estate in equal shares. The purported disclaimer was ineffective, it was held, as it occurred at a time before the testator’s death.169

7.46 Sixth, in the case of an intestacy, despite the expression of some doubt as to whether one could disclaim at all170 and thus vary statutory rules of distribution,171 the law recognises the benefit disclaimed passes to other members of the class to which the disclaiming beneficiary belonged and, if there are none, to the next class entitled.172 This has been given statutory force in New South Wales and Tasmania,173 whereby a person who disclaims an interest in an intestate estate is taken as having predeceased the intestate for the purposes of distribution of the intestate estate. This avoids the interest passing bona vacantia to the Crown. It also appears that, whilst the intestacy legislation generally appoints the Public Trustee (or equivalent) as title-holder to an intestate estate pending appointment of an administrator,174 a beneficiary may disclaim at any time at least up until the issue of the grant.175

Forfeiture of Testamentary Gift for Killing ‘Forfeiture rule’ 7.47 It is an established principle of law that if A is criminally responsible for the death of B, and that death is a material fact in the vesting of property in favour of A, the interest in that property is forfeited. The rule is not directed at punishment but instead rests on public policy, as ‘no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person’.176 In succession law, the rule applies as regards both wills and intestacies, so that if a testator should make a will benefiting X, and X unlawfully kills the testator, X is not entitled to the property that would otherwise have gone to him or her, whether under the testator’s will or the intestacy rules. It is, nonetheless, a rule of comparatively recent origin, as prior to 1870 feudal doctrines of attainder, forfeiture, corruption of blood and escheat operated to forfeit the killer’s [page 191]

interest to the Crown.177 The statutory abolition of these doctrines in 1870 in England178 opened the door for the common law to formulate principle.

Parameters of the forfeiture rule 7.48 The common law rule is comprehensive in its application. The killer is disbarred from taking benefit from the estate of the deceased, in whatever manner and form.179 Thus, the killer cannot take the benefit of specific or residuary testamentary gifts.180 Nor can he or she claim on intestacy181 or by right of survivorship in the case of a joint tenancy with the deceased.182 He or she may also be disbarred from claiming a state pension,183 or from benefiting from the proceeds of a superannuation fund184 or a potential entitlement under a discretionary trust,185 stemming from the deceased. Claiming under family provision legislation is likewise contrary to public policy, and thus precluded.186 Disqualification, moreover, extends to assuming the role of executor or being appointed as administrator of the deceased’s will.187 7.49 The common law recognises two exceptions to the operation of the forfeiture rule. The main one, recognised at an early stage in its development,188 is where the killer is found to be insane, in which case the killer (or his or her personal representatives) remains fully entitled. It has consistently been followed in both Australia and other common law countries.189 Apart from the obvious fact that insanity serves to acquit the offender of the felonious killing, this exception is justified, it is said, on the public policy ground ‘that the community is not taken to be outraged by the action of a person who is so affected by mental illness as to have lost relevant insight into his or her actions’.190 [page 192] The second exception is more nebulous and, if it applies in Australian law, is confined to a very narrow fact scenario. It stems from the Canadian decision of Lundy v Lundy,191 and operates where the will benefiting the killer is made after the criminal act, or is republished or revived after that act. In that case, the

testator made a will benefiting a person who had wounded him. The testator’s later death from the wounding did not attract the operation of the rule, the Supreme Court held. The exception is ostensibly grounded in giving effect to a testator’s informed decision to benefit his or her attacker. At the same time, it appears at odds with the public policy underscoring the forfeiture rule, as well as inviting inquiry into potentially difficult issues of causation between the act and the testator’s death.

Matters going to proof 7.50 For the application of the rule of common law, it is necessary to prove an unlawful killing. As the matter is a civil, rather than a criminal one, proof is on the balance of probabilities rather than on the criminal standard of beyond reasonable doubt. It follows that the application of the rule does not necessarily rest on a criminal conviction, whether for murder or manslaughter, although it will most commonly do so.192 For the same reason, an acquittal is inadmissible in subsequent civil proceedings as an evidentiary fact against those who seek to establish the application of the forfeiture rule in those proceedings.193

Moral culpability — murder versus manslaughter 7.51 The forfeiture rule clearly applies to all cases of murder. But judges have vacillated as to whether it should apply to every case of manslaughter. The dispute has centred on the question whether the rule is a blanket one, covering all unlawful killings, and thus avoiding inquiry into the moral culpability for the killing, or whether, in some cases of manslaughter, issues of moral culpability should be taken into account. English authority started with eschewing any distinction between motive and moral culpability. This meant that, for example, in Re Giles (deceased)194 a woman who, having killed her husband with a blow from a domestic appliance, pleaded guilty to manslaughter on the basis of diminished responsibility and was sentenced for hospital treatment, was nonetheless disqualified from inheriting her husband’s estate. Pennycuick VC, before noting that ‘the deserving of punishment and moral culpability are not necessarily ingredients of the type of crime to which

this rule applies’,195 feared that distinguishing manslaughter from murder for this purpose would encourage ‘a sentimental speculation as to the motives and degree of moral guilt of a person who has been justly convicted’.196 Later United Kingdom cases sought to ameliorate that position,197 but the need to do so was largely obviated by the enactment of the Forfeiture Act 1982 (UK), which enables a court to make an order modifying the effect of the forfeiture rule in cases other than murder if satisfied that, having regard to the conduct of the offender and of the deceased and to other [page 193] circumstances, the justice of the case requires modification.198 This, inter alia, requires a consideration of the moral culpability attending the killing.199 7.52 Over the years, Australian judges have vacillated on the issue. The 1980s and early 1990s saw some adopt a more yielding approach. In Public Trustee v Evans,200 for instance, Young J disclaimed any rule of public policy that prevented a wife, who had killed her husband against a backdrop of marital violence and threats, from inheriting the husband’s estate. That the trial judge discharged the jury at the conclusion of the Crown case on the ground that a nominal punishment would in all the circumstances be sufficient,201 thereby functioning as an acquittal, no doubt influenced his Honour’s view. Two years later Kearney J in Public Trustee v Fraser202 likewise envisaged a flexible approach by inquiring into ‘whether the taking of a benefit by a person through his crime would be unconscionable as representing an unjust enrichment of that person so as to attract the public policy rule’. In another case involving domestic violence, this time from Victoria, it was held that a wife’s guilty plea to the manslaughter of her husband did not dictate forfeiture.203 Rolfe J had earlier sought to reformulate the rule, again in flexible terms, to limit its application to where the killing was intended to bring about a benefit from the estate of the deceased to the perpetrator.204 7.53 At the same time, Powell J in the New South Wales Supreme Court favoured the stricter English approach.205 The scene was set, accordingly, for an appellate court to address the issue authoritatively. The opportunity

presented itself before the New South Wales Court of Appeal in Troja v Troja,206 involving a wife convicted of her husband’s manslaughter on the grounds of diminished responsibility. A majority of the court rejected any role for the notion of unconscionability as underscoring the forfeiture rule, Meagher JA stating that:207 … all felonious killings are contrary to public policy and hence, one would assume, unconscionable. Indeed, there is something a trifle comic in the spectacle of Equity judges sorting felonious killings into conscionable and unconscionable piles.

This led his Honour, and the other judge in the majority, Mahoney JA, to rule that the court could not enforce rights directly resulting to a person asserting them from the crime of that person and, whilst it was necessary to establish a direct relationship between the killing and the benefit, once established, forfeiture automatically followed.208 There was no flexibility or residual discretion in applying the rule, their Honours concluded, and so the wife was unable to take under the husband’s will. Kirby P dissented, preferring an inquiry grounded in whether [page 194] it would be ‘unconscionable for the perpetrator of an unlawful homicide to derive benefits as a consequence of the felonious act’.209 7.54 The majority decision in Troja was shortly thereafter applied in Victoria in the context of a conviction for manslaughter that generated a 5-year good behaviour bond,210 before being applied in Queensland (in one instance in the context of an assisted suicide)211 and South Australia.212 However, in 2016 the Victorian Court of Appeal in Edwards v State Trustees Ltd,213 while accepting that the forfeiture rule rests in public policy and not in any notions of unconscionable conduct,214 envisaged an inquiry into culpability in the context of a manslaughter conviction. Whelan JA, with whom Kyrou JA concurred, remarked as follows:215 Cases of murder are straightforward and would always result in the offender being precluded. Cases of manslaughter have to be considered on a case-by-case basis. The issue is: does the criminal culpability of the offender require that he or she should not be entitled to take a benefit arising from the death? The issue is not determined by reference to whether the conduct is advertent or inadvertent, whether it is by violent means or by other means, whether it is behind

the wheel of a car or whilst in possession of a weapon. If it is necessary to find the majority judgments in Troja were plainly wrong to reach this conclusion then in my opinion they were.

In Edwards, where a wife had been convicted of the manslaughter of her abusive husband, the court nonetheless found the requisite culpability, substantiated by their Honours as follows:216 The appellant killed her abusive husband by inflicting 30 separate wounds on him with two different weapons. She intended to kill him or to cause him really serious injury. She believed that it was necessary to do what she did in self-defence but she did not have reasonable grounds for that belief. Important aspects of her account of what occurred could not be accepted by the sentencing judge. She initially gave a false account of what had occurred. She had been a victim of domestic violence and she was mentally unstable. All of this is reflected in the sentence of seven years’ imprisonment that was imposed.

While Edwards ostensibly eschews the ‘black and white’ approach fostered by Troja — which was what led the New South Wales Parliament to enact legislation,217 following a similar schema to its English counterpart and that already enacted in the Australian Capital Territory,218 to allow the court to modify the effect of the forfeiture rule in appropriate circumstances except in cases of murder — it invites what may prove a difficult inquiry into degrees of culpability to determine whether or not the rule should apply in the circumstances, [page 195] in the absence of either a statutory mandate or statutorily listed parameters or considerations. The latter may yet emanate consequent upon the 2014 recommendation of the Victorian Law Reform Commission for a statute to address the potential unfairness stemming from the forfeiture rule being applied inflexibly without regard to the moral culpability of the killer.219 The same has been recommended in Tasmania,220 judicially called for in Queensland221 and enacted in New Zealand.222 Yet in Australian law only the Australian Capital Territory and New South Wales have to date addressed the issue by statute, discussed in greater detail below.223 7.55 Independent of statutory initiatives, and indeed of the relevant public policy, the forfeiture rule does not oust a claim to common property shared by the claimant and the deceased under equitable principles,224 or under

statutory regimes dedicated to allocating property interests in marital or domestic relationships. Such a claim must be established separately, and is irrelevant to the inflexible application of the forfeiture rule.225

Effect of forfeiture — the destination of the property interest 7.56 As indicated above, the authorities are clear that application of the forfeiture rule results in the killer being disbarred in taking any benefit from the estate of the deceased. Thus the killer, and those claiming through him or her, cannot take the benefit of specific or residuary gifts in wills, cannot claim on intestacy and, in the case of joint tenancies, cannot claim by right of survivorship. The question thus arises, upon disbarment of a claim, as to the destination of the property. The matter is addressed below by considering separately cases of wills, intestacies and joint tenancies.

Wills 7.57 The orthodox approach is simple: specific gifts in wills to the killer fall into the residuary estate.226 And if the killer is the sole residuary legatee or if there is no residuary gift, the property is distributed as on the intestacy of the deceased. The killer is disqualified from any benefit under that intestacy.227 7.58 Problems have, however, surfaced where the will benefits the killer, but contains a gift over in the event of the killer-beneficiary predeceasing the testator, designed to avoid the doctrine of lapse,228 but (understandably) not directly addressing the issue of possible [page 196] forfeiture.229 The case law reveals a tension between a literal approach to the construction of the will, and a more purposive (albeit fictional) one, (allegedly) more closely aligned with the testator’s likely intention. Some judges have sought to overcome this tension through the vehicle of a trust. Each of these approaches is explained and illustrated below.

Earlier decisions appear to have followed a purposive-type approach, taking the view that the gift over may take effect on the killer’s disqualification, grounded in an assumption surrounding the testator’s intention. In Re Barrowcliff,230 for example, a wife executed a will, leaving her entire estate to her husband in the event of him surviving her, but otherwise on a gift over to trustees for named beneficiaries. The husband murdered the wife. It was argued that, as the gift over was expressed to rest on the husband predeceasing the testator, but the husband in fact survived the wife, an intestacy resulted. Napier J rejected this argument, reasoning that, as the testator had made manifest her intention to dispose of the property, the will should be read as if the gift over took effect subject to the interest previously given. Napier J reasoned that:231 … [i]t could never have occurred to anyone concerned in the making of this will that there was any hiatus between these dispositions, or that this event might happen, to preclude the husband from taking, and yet leave the condition of the gift over unfulfilled.

There is English authority aligning with this view,232 as well as support at first instance in Troja v Troja.233 Yet the fiction necessary to trigger the gift over — namely, to legally deem the beneficiary to have actually predeceased the testator — enjoys little judicial support.234 7.59 More commonly, a literal approach is taken in the construction of the will, so that a gift over on the non-survival of the killer will have no effect. In Davis v Worthington,235 for example, a testator left her estate to P provided he survived her for 14 days, failing which the estate was to go to a named charity. P murdered the testator, and survived her for more than 14 days. The testator’s next of kin, who would take in the event of intestacy, and the charity claimed the estate. Wallace J held that, as the testator clearly intended that the gift over to the charity would take effect only if P did not survive her for 14 days, and no provision was made for what would happen to the estate were P barred from taking, there was an intestacy. As the question was one of construction of the will, it was incorrect to notionally regard P as predeceasing the testator or to simply ‘strike out’ his name. Similar ‘literal’ approaches litter the case law in Britain.236 7.60 Some commentators have opined that whilst, as a basic principle of construction of wills, a court cannot give effect to an intention that is neither expressed nor implied in the testamentary words, this principle is not without

exception,237 based upon the rule in Jones v Westcomb.238 The case involved a testator who made a will in favour of his wife for life, and after her death to the child with whom she was then pregnant. It added that if the child died before attaining 21 years of age, the wife was to take one-third of the benefit. The wife was not pregnant at all, but was nevertheless held entitled to the benefit. Of the various formulations [page 197] of the principle underscoring this outcome,239 a useful statement of the Australian position is the following:240 … if an ultimate gift is made to take effect upon the determination of a prior interest in a particular manner, it may take effect upon the determination of that interest in another manner provided the Court is of opinion that the intention of the testator was to include determination in that manner.

The Jones v Westcomb rule has been applied in forfeiture cases involving a gift over on several occasions, albeit cautiously. Thus in Re Keid241 Wanstall CJ, where the testatrix was murdered by her son who had been left a gift of the estate, held that a gift over, in the event of the son predeceasing the testatrix, was effective. The gift over was in favour of the testatrix’s sisters, and the contest was between the sisters and the testatrix’s mother, who would have been entitled on intestacy. His Honour, in ruling that the gift over should have effect, reasoned that ‘[t]he contingency against which the testatrix really had to guard was the failure of the gift to her son so that she would be left intestate’ and, that being so, ‘the court should look to that contingency and give effect to the will if it should happen’.242 In other words, the will was construed as if the testatrix may have countenanced that the will might fail because of the murder, and had essentially provided for that possibility. 7.61 Yet more recent decisions, whilst acknowledging the usefulness of the Jones v Westcomb rule in this context, have nonetheless declined to apply it. The cases, Re Lentjes,243 Ekert v Merieder244 and Public Trustee v Hayles,245 involved gifts to the killer as principal beneficiary, with a gift over in the event of that beneficiary predeceasing the testator. In each case the gift over was held to have no effect, thus triggering an intestacy. In Lentjes Heron J identified the

difficulty as one arising from the impact on the will of the disqualification to an entitlement in circumstances never likely to have been in the testator’s contemplation, which in turn made it artificial to speak of the testator’s intentions as taken from the document itself.246 In Ekert Windeyer J said that the Jones v Westcomb rule could not be applied in order to bring about a result the court considers fair, and that ‘in many cases it would be dangerous for a court to interpret a will based on presumed intentions’.247 So whilst the fictional approach — either to deem the killer to have predeceased the testator or to treat the gift to the killer as having either lapsed or been struck out — is problematic in principle, there is scope, albeit limited, via a more interpretative Jones v Westcomb approach, to save the gift over and thus avoid intestacy. 7.62 A third alternative, proposed by Young J in Public Trustee v Hayles,248 utilises the trust as a vehicle to secure a just outcome. There the testator’s will gave his entire estate upon trust for T absolutely ‘provided however should [T] predecease me then for [D] absolutely’. D was T’s mother. T murdered the testator. The executor sought directions as to whether the estate should go to D under the gift over, or should be distributed to the testator’s next of kin under the intestacy rules. Young J admitted evidence that the testator left with the Clerk of the Court at Tweed Heads a memorandum, dated the day after he made the will, containing a direction that ‘under [page 198] no circumstances whatsoever, contact be made with any of my relatives’. His Honour considered that, where the will is ‘quite plain’ in making a gift to the murderer, the court can address the policy underscoring the forfeiture rule, whilst avoiding fictional inquiries into intention, by making the murderer ‘hold the estate on trust for the person it thinks appropriate’.249 Whether the gift over took effect, reasoned his Honour, depended on whether a constructive trust should be imposed in favour of D, which in turn rested on the evidence, which was slender. That the memorandum made it ‘abundantly clear’ that the relatives were not even to be informed of the

testator’s death, such that ‘the court can very comfortably form the view that … the relatives were not to take’,250 did not, according to Young J, necessarily mean that the testator preferred his killer’s mother to his next of kin. This inclined his Honour to impose a trust in favour of the next of kin, reflecting the intestacy rules.251 7.63 The defensibility of such an approach awaits further analysis and authority.252 Aside from, as a result, having little in the way of clear parameters informing the exercise of the court’s discretion as to the imposition and terms of the trust, the challenge to the trust approach is that it is premised on the killer taking legal title to the gift in question. This sits uncomfortably with the core public policy underscoring the forfeiture rule, which by definition assumes that the killer takes nothing (forfeits) under the testator’s will.

Intestacies 7.64 A killer is disqualified from benefiting under an intestacy, both where it results from being disqualified from taking a gift under a will, and where the deceased dies intestate. Though objectionable on the ground that it allows public policy to override clear statute law253 — that is, the entitlements under intestacy rules — it is well established in the case law.254 The constructive trust approach, advocated by Young J in Public Trustee v Hayles,255 would if applied direct inquiry as to the persons with the better claim to the estate. Normally it will be the next of kin but, in special, perhaps exceptional, cases it may well be that the testator has intended that the normal rules as to the distribution on intestacies should not be followed. 7.65 The position is governed by statute in New South Wales and Tasmania, which deems a person disqualified from taking on intestacy to have predeceased the intestate for the purposes of distribution of the intestate estate.256 Accordingly, if the disqualified person has issue, that issue will take. [page 199]

Joint tenancies

7.66 In the case of joint tenants the survivor’s existing right is enlarged by the death of one of them,257 whereas in the case of a beneficiary either under a will or an intestacy the right is created by the death. The killer, in the joint tenancy scenario, has a vested interest in the property, and not merely an expectation interest. Australian case law has embraced two distinct approaches in this regard.258 The first, which finds its authority in Re Barrowcliff,259 is that the jus accrescendi — that is, the legal right of survivorship — cannot operate in favour of one joint tenant who unlawfully kills another. Napier J ruled that, whilst the killer had not forfeited his own interest in the property, the right of the survivorship did not operate in his favour. Whether the unlawful killing created an exception to the ordinary rules of survivorship, or instead worked a severance of the joint tenancy,260 the beneficial interest passed at law as though the owners had been tenants-in-common. 7.67 The alternative, and preferable, view was proffered by Jacobs J in Re Thorp and the Real Property Act,261 where Re Barrowcliff was disapproved. There a husband and wife held Torrens system land as joint tenants. The husband murdered the wife and then suicided. The registrar refused to register any transmission to the personal representative pending adjudication as to the entitlement. Drawing on an historical analysis, Jacobs J held that, at law, there had been no severance of the joint tenancy, and that the legal title passed to the surviving joint tenant, who was thus entitled to be registered as sole owner. However, public policy required the surviving joint tenant to hold upon a constructive trust in favour of himself as to half, and the estate of the victim as to the other half. Thorp was followed in Rasmanis v Jurewitsch,262 where there were two joint tenancies in respect of separate properties, the first held by the killer and the second by the killer and two others. Jacobs JA reasoned as follows:263 … the question then is how equity will so interfere in order to prevent the felon from reaping a benefit from his slaying. It may do so by determining that the slaying caused a severance of the joint tenancy in equity, or it may do so by imposing a constructive trust. Again, the constructive trust may be in favour of the victim’s estate or it may be in trust in favour of the third joint tenant. Where there are only two joint tenants there is no difference in result between severance and constructive trust … I think that the primary rule to be enforced is that the felon must not be allowed to retain any benefit flowing to him from the slaying and that he is required to hold any such benefit which flows at law upon trust for someone other than himself. This someone may be either the estate of the victim or the third joint tenant …

This position has been followed in Australia264 and elsewhere.265 Accordingly, while the legal title follows the course appointed by the jus accrescendi, the beneficial interest is adjusted to reflect that the surviving joint tenant was responsible for the death of the other joint tenant. [page 200]

Statutory intervention: Australian Capital Territory and New South Wales 7.68 The Forfeiture Act 1991 (ACT) and Forfeiture Act 1995 (NSW) were partially modelled upon the provisions of the Forfeiture Act 1982 (UK). Neither Act applies to an unlawful killing constituting murder.266 Each Act fundamentally envisages that, if a person who, as a result of unlawfully killing another, is precluded by the forfeiture rule from benefiting from that other’s estate, an application can be made (within set time limits)267 to the court for an order modifying the effect of the rule.268 The court may make such an order if satisfied that justice requires the effect of the forfeiture rule be modified.269 The court is directed, in making its decision, to have regard to the conduct of the offender and of the deceased, and to any other circumstances that appear to the court to be material, and in New South Wales also to ‘the effect of the application of the rule on the offender or any other person’.270 ‘Any other circumstances’, it has been suggested, may encompass the relationship between the parties, the degree of moral culpability for what had happened, the nature of the gravity of the offence, the intentions of the deceased, the size of the estate and the value of the property in dispute, the financial position of the offender, and the moral claims of those who would be entitled to take on the application of the forfeiture rule.271 Importantly, the conduct of the killer during the parties’ relationship is only relevant to the extent that it has a bearing on the deceased’s death, and not otherwise.272 The order may be in such terms and subject to such conditions as the court thinks fit and, in particular, the court may exclude the operation of the

forfeiture rule in relation to all or part of any interest in property.273 The terms of the legislation suggest that application for a forfeiture modification order may be made if a claim for family provision is denied because of the forfeiture rule.274 7.69 The New South Wales Act provides for revocation and variation of forfeiture modification orders, say, if the offender is later pardoned, or his or her conviction is quashed or set aside and there are no further avenues of appeal available.275 Also unique to the New South Wales Act, as a result of a 2005 amendment,276 is its application to where the forfeiture rule otherwise has no operation because the offender has been found not guilty of murder by reason of mental illness. In those circumstances, any interested person may apply for an order that the rule applies as if the offender had been found guilty of murder.277 The court may then make an order applying [page 201] the forfeiture rule if satisfied that justice requires the rule to be applied.278 The same conditions governing the court’s determination in a normal application apply in this instance.279 7.70 There are various instances where a forfeiture modification order may be sought. Cases decided under the equivalent English Act suggest that orders are most likely where the offender has been subjected to ongoing domestic violence and the killing forms part and is in response to that violence,280 where the offender suffers severe diminished responsibility281 and where there has been a failed suicide pact.282 New South Wales cases heavily target scenarios involving diminished responsibility. For example, in R v R283 an application was lodged on behalf of a 13-year-old boy who had killed his mother and sister when suffering from an abnormality of mind that substantially diminished his mental responsibility. The evidence revealed that the applicant’s abnormality of mind was largely the result of sexual, emotional and physical abuse by his father over many years. His half-brother and grandmother supported the application, which succeeded. Similarly, in Lenaghan-Britton v Taylor284 the applicant killed her

grandmother and pleaded guilty to a charge of manslaughter, which the Crown accepted on the basis of diminished responsibility. Hodgson CJ in Eq noted that, whilst the crime was extremely serious, it involved no premeditation or intention to profit, and occurred solely because the applicant was mentally incapable of coping with looking after the grandmother. She was the only member of the family who had attempted to assist the grandmother in her old age and had sold her own home in order to do so. The applicant had, his Honour reasoned, been appropriately punished for her crime, and modifying the forfeiture rule would neither incentivise others to act similarly or cause community outrage. Modification was thus ordered allowing the applicant to take under the grandmother’s will. A further illustration of a successful application is found in Jans v Public Trustee,285 where the plaintiff killed his wife, but the Crown accepted a plea to manslaughter, based partially on diminished responsibility. On sentencing he was placed on a 4-year good behaviour bond. Campbell J, in modifying the forfeiture rule, was influenced by the fact that the applicant would otherwise have been left without assets, and that the children of the marriage, who were also beneficiaries, consented to the application that the rule be displaced. His Honour also took into account the sentencing judge’s comments on sentencing. [page 202]

Satisfaction in Equity 7.71 Where a person (A, the testator) who is obliged to make a payment to another (B) later bequeaths a sum to B, the issue arises whether A intended that sum be in satisfaction of, or instead cumulative upon, the obligation. Via the doctrine of satisfaction, derived from the courts of equity, in certain circumstances the law presumed against a cumulative entitlement. This presumption — known as the presumption of satisfaction — operates to treat the legacy as satisfying the prior obligation. It operates between testators and their creditors, and between testators and the persons to whom they are in loco parentis (‘in the place of a parent’). Each scenario is discussed in turn below.

Presumption as between testators and creditors 7.72 As between testators and creditors, equity presumes that a legacy of A to B is intended to satisfy an existing debt owed to B where that legacy is equivalent to or exceeds that to which B is entitled apart from the will.286 The presumption here aims to prevent the ‘unconscientious enjoyment of two gifts which it is known were not intended to be cumulative’.287 Being grounded in A’s presumed intention, the presumption must yield to evidence that A did not intend the legacy to be in satisfaction of the debt. So although the issue of whether the presumption arises rests solely on the construction of A’s will, extrinsic evidence is admissible to rebut the presumption once it is found to have arisen.288 7.73 It should not be assumed that the strength of the presumption, and with this the ease with which it is rebutted, is always uniform. Instead it varies according to the facts, underscoring judicial branding of the presumption as artificial.289 In the case, say, of a legacy to B who happens, by some ordinary transaction of business, to have become a creditor of A, there appears no real likelihood that A meant the legacy as a satisfaction of the debt. The presumption here is weak, as it lacks a natural foundation and contradicts experience. There is a more compelling basis for the presumption in instances where the liability forms part of the arrangements affecting in a general sense the enjoyment of A’s property.290 Accordingly, it has been surmised that the issue of satisfaction should target A’s intention, construed from the terms of A’s will, the parties’ situation and the surrounding circumstances, not hamstrung by inflexible rules of construction.291 This does not altogether oust the presumption; it remains as a convenient determinant of the onus. This approach aptly locates the factors the courts have traditionally treated as evidence relevant to raising the presumption, and its [page 203] rebuttal, as merely tools to determine whether the presumption aligns with A’s intention. Each of these factors, discussed below, must be weighed against

others to determine what the correct inference as to intention should be.

Identity of amounts 7.74 A Queensland judge has remarked that ‘[i]n all the cases I have seen where the presumption has been held to arise (apart from those where the legacy was greater than the debt) the sum named by the testator has been exactly equal to the debt’.292 Certainly identity between the legacy and the debt provides prima facie evidence that the testator intended it to be in satisfaction of the debt. In Royal North Shore Hospital v Crichton-Smith,293 upon the separation of the parties to a marriage in 1922, the husband covenanted to pay his wife an annuity of £630 quarterly in advance during his wife’s life so long as she should remain chaste. In his will, made in 1931, the husband directed that the income of a share of his residuary estate, up to £630, be paid quarterly in advance to his wife during her life or until she should remarry. The High Court construed the identity of the main characteristics of the two provisions as raising a presumption that the husband intended the legacy to operate in satisfaction of the prior covenant.294 7.75 But where the debt exceeds the legacy, even by a small amount, courts have generally refused to uphold the presumption. In Lambert v Waters295 the bequest totalled £300 per annum whereas the debt accrued at £6 per week. Philp J held that the legacy was not in satisfaction of the debt, because ‘a covenant to pay £6 a week is at the least a covenant to pay £312 per annum’.296 Though conceding that, colloquially speaking £6 a week equates to £300 a year, his Honour was disinclined to ‘give a colloquial meaning to a phrase used in a will obviously drawn by a lawyer’.297 The strict approach again appears in Webb v Webb,298 where the testator bequeathed to his widow a legacy of £750. At the date of the will, the testator was indebted to his wife in respect of differing amounts, each less than the bequest. At the date of his death the testator owed over £756 to his wife. A H Simpson CJ held that the bequest was taken out of the presumption of satisfaction due to it being ‘a fluctuating and varying amount, of which fact the testator was aware’.299

Time of payment 7.76

Where the legacy, even though equal to or exceeding the debt, is

payable at a different time, so as not to be equally advantageous to the legatee as the payment of the debt, courts have refused to apply the presumption of satisfaction. The words of Lord Hardwicke LC in Clark v Sewell typify the curial attitude:300 [A] legacy that ought to be deemed a satisfaction must take place immediately after the death of the testator: for the debt, whether of a principal sum or for interest, is due at the death of the testator, and therefore the legacy must be so too … There is no case to make a legacy a satisfaction of a debt, where the legacy is not due at the time of the testator’s death, but is made contingent, and to take place at a future day … For whether the positioning of the legacy is a month only, or a longer time, it makes no manner of difference.

[page 204] So where, in Haynes v Mico,301 the debt was payable within 1 month and the legacy within 6 months, the legacy was less advantageous to the creditor and thus could not be in satisfaction of the debt. However, an immediate legacy comes within the presumption although it is only payable in a due course of administration and after provision for debts and funeral expenses. Nor does the fact that a legacy is given generally, without reference to time of payment or interest, exclude the presumption. In this case, if the court finds the legacy to be in satisfaction of a debt, it gives interest from the date of the testator’s death,302 unless the will mentions a date for payment, in which case interest will only run from that date.303

Direction to pay debts 7.77 It has been judicially remarked that to rebut the presumption of satisfaction ‘all that is material is that there should be a direction that debts should be paid’.304 The logic is that the presence of such a direction after the legacy to a creditor reveals an intention that the legacy and the payment of the debt be cumulative. Instead of going to the rebuttal of the presumption, though, an alternative view is that a testamentary direction to pay debts is evidence going to its existence in the first place.305 As the presence or absence of a direction to pay debts is determined on the construction of the will without resort to extrinsic materials, there is sense in addressing it when the existence of the presumption is determined. At the same time, though, the

court in this way in effect precludes admission of extrinsic evidence that may support the presumption notwithstanding the direction to pay debts in the will.

Legacy being a share of the residue 7.78 That the legacy is a share of the residue has historically been held sufficient to oust the presumption, driven by the courts’ concern that what is given in satisfaction should be certain.306 However, as appears from the High Court’s decision in Royal North Shore Hospital v Crichton-Smith,307 this is not determinative, but only a factor to be balanced against other factors to determine the testator’s intention.

Presumption in respect of persons in loco parentis 7.79 The presumption of satisfaction can operate where a person has covenanted to provide what are known as ‘portions’ of his or her estate for persons to whom he or she is in loco parentis. A ‘portion’ has been defined as ‘something given by the parent to establish the child in life, or to make what is called a provision for him — not a mere casual payment’.308 The curial attitude is typified by the words of Swinfen Eady J in Re Blundell:309 Equity leans against double portions, and the general rule is that wherever a legacy given by a parent, or a person standing in loco parentis, is as great as or greater than a portion previously secured to the legatee upon marriage or otherwise, a presumption arises that the legacy was intended as a satisfaction of the portion. If the legacy is less than the portion a presumption arises that it was intended as a satisfaction pro tanto.

[page 205] 7.80 Again the inquiry focuses on whether the subject of the undertaking or obligation is substantially the same as the legacy,310 which together inform the testator’s intention. But the law here differs from that governing the testator and his or her creditors in two important respects. First, that a legacy is less than the portion does not preclude the presumption of satisfaction; the obligation is presumed to have been satisfied to the extent of the legacy (pro

tanto). So if a testator covenants to settle a sum of money upon a child for life, with remainder to the child’s issue, that covenant is not satisfied by a bequest of a like sum of money to that child absolutely; it is only satisfied so far as the child (and not his or her issue) is concerned.311 Second, the presumption is stronger in the case of portions in the context of persons in loco parentis than for bequests to creditors. Long ago the House of Lords explained the reason for this as follows:312 Equity leans against legacies being taken in satisfaction of the debt, but leans in favour of a provision by will being in satisfaction of a portion by contract, feeling the great improbability of a parent intending a double portion for one child, to the prejudice generally, of other children. In the case of a debt, therefore, small circumstances of difference between the debt and the legacy are held to negative any presumption of satisfaction; whereas in the case of portions, small circumstances are disregarded. So in the case of debt, a smaller legacy is not held to be in satisfaction of part of a larger debt; but in the case of portions it may be satisfaction pro tanto.

But in other respects the factors that assist the court in determining intention do not materially differ between the scenarios. A leading case is Russell v White,313 where the testator, shortly after his daughter’s birth, settled £2000 on trust for her absolutely. Some 13 years later, he received back the money (which had accumulated to £5000) from the trustee, and executed a declaration of trust of the moneys so received for ‘the sole and separate use’ of his daughter. Thereafter the testator treated the moneys as his own. In his will, he directed his trustees to invest £22,000 out of the residue for his daughter in trust to pay her out of the income £300 annually until age 22 and then to pay her the accumulated interest and the annual interest during her life with remainder to her children (and in default of children, to any person whom the daughter appointed). The issue was whether the daughter’s entitlement under the will included the £5000 held on trust on her behalf or was cumulative to it. Owen CJ in Eq held that, as the declaration of trust had been executed only 18 months before the execution of the will, and the £5000 was in the testator’s hands at the date of his death, the presumption of satisfaction arose. However, it was rebutted by reason of ‘the great difference in the amount of the two gifts and the great differences between the limitations of the two’.314 [page 206]

Ademption in Equity Nature of equitable ademption 7.81 Equity has long presumed that, in certain circumstances, a testator intends, via a payment to a legatee, to satisfy a legacy due to that person under the testator’s will. This is given effect through the equitable doctrine of ademption, underscoring which is the following notion:315 … where a testator by his will directs the application of funds for particular purposes, or where he has a moral obligation to make such a provision, and he makes a subsequent provision of the same nature for the same or very similar purposes by another instrument effecting the same purposes in much the same way as in the earlier instrument, he is presumed to have intended to have substituted the later for the earlier provision, and it is adeemed.

Although both satisfaction and ademption give effect to equity’s presumption against double portions,316 the doctrine of ademption in equity is essentially the converse of satisfaction. The differences and relationship between the two doctrines have been explained as follows:317 If the earlier of the two gifts is not a revocable will but a legal obligation upon the donor — for example his covenant with the trustees of his daughter’s marriage settlement to pay a sum to them — then the question of whether the later gift by will was intended to meet the same purposes as the former covenant and is on that account to be a substitute for it is generally referred to as a question of ‘satisfaction’. If, however, the earlier gift is by a will as to which the donor is under no legal obligation and the latter is a gift inter vivos the corresponding question is generally referred to as one of ‘ademption’. Although the principles of satisfaction and ademption are not dissimilar it is clear upon the authorities that it is a good deal more difficult to prove a case of satisfaction than of ademption.

Also, in cases of satisfaction the persons intended to be benefited by the gift or advance and those to be benefited by the legacy are one and the same; in cases of ademption they may differ.318

Presumption of ademption in equity Classes of case where ademption in equity is presumed 7.82 Equity presumes an intention to adeem (that is, take away or revoke) in two types of case:319 first, where a parent320 (or person in loco parentis) gives his or her child a legacy and thereafter inter vivos makes a gift or advance of substantially the same quality to that child; and second, where a person gives a

legacy for a particular purpose and thereafter makes a gift or advance to the legatee for the same purpose. Each scenario is discussed below,321 and raises a presumption, rebuttable by contrary intention contained in the relevant instrument, that [page 207] the donor did not intend that both benefits be taken, but that the gift be in satisfaction of the legacy either wholly or pro tanto accordingly.

Legacy and gift/advance to be ejusdem generis 7.83 The relevant presumption only arises where the legacy and subsequent gift or advance are ejusdem generis, that is, of the same kind or nature.322 A finding of this kind may derive from the form or self-description of the instrument making the second gift, from the terms of the two gifts — thus ‘simple repetition, where it is exact and punctual, has been regarded as sufficient proof’ that it is only intended as repetition323 — or where the sums and motive are the same in both instruments. But as discussed below,324 latitude exists in applying the ejusdem generis notion, particularly as regards advances from persons in loco parentis.

Subsequent advance by parent (or person in loco parentis) Operation of the presumption 7.84 A parent (or person in loco parentis) who gives a legacy to a child, without expressing the purpose for which it is given, is ordinarily understood to be giving a ‘portion’. For this purpose, small gifts have never been portions.325 Yet the term refers not merely to quantity, but has a qualitative significance, and so the issue is grounded in the donor’s intention.326 Equity, it is said, leans against double portions; accordingly, a post-will inter vivos advance of a portion to the child is presumed as intended to adeem the legacy

either altogether or, where the advancement is less than the legacy, pro tanto. A parent wishing to establish a child in life, or to make substantial provision for a child, by way of a ‘portion’ does not, it is reasoned, intend to do so twice.327 The operation of the presumption is illustrated by Re Cameron (deceased).328 There a mother bequeathed her estate to her four sons equally, later granting an enduring power of attorney to her second, third and fourth sons, conferring a power to provide for and meet the needs of any person for which she might have been expected to do so. The donees of the power paid £62,596 for private school fees of the child of the first son on the basis that this payment would, due to the rule against double portions, adeem pro tanto the first son’s share in the residuary estate. On the mother’s death, the first son argued that there had been no ademption of his share. Lindsay J rejected this claim, viewing the testamentary gift and the inter vivos gift as each making substantial provisions intended to include the substantial benefit of one person. In so ruling, his Lordship saw nothing exceptional in the law recognising that a disposition can be for a person’s benefit even though it does not come into her or his hands. It followed that if ‘a gift to the grandchild can fairly be seen as intended for the substantial benefit of the child’, there is scope for the presumption.329 [page 208]

Rebuttal of the presumption 7.85 The presumption against double portions necessarily serves to throw the onus of rebutting its effect on the person claiming both portions.330 Relevant evidence, to this end, targets the testator’s intention, whether from the language of the will or any other relevant circumstances. The ejusdem generis principle does not operate mechanically so as to preclude the presumption. Absent cogent extrinsic evidence to the contrary, in cases of substantial similarity, slight differences between the gift and the legacy do not upset the presumption.331 Substantial differences, though, may do so. The question in each case is: ‘are the differences so marked that the notion that one gift could have been intended as a substitute for the other was effectively excluded?’332

7.86 Lake v Quinton333 illustrates the curial approach. The testator, by his will, gave one-third of his residuary estate to his wife for 30 years and thereafter to his children. The income from the remaining two-thirds of the estate was given to his children in equal shares until they should reach a set age, and thereafter absolutely. After the testator’s divorce, he executed a settlement whereby his former wife was given a life estate in a house, the children taking in the remainder. He later executed a settlement of shares to be held on trust for such of his children who should attain 21 years of age. The issue was whether legacies to the children were adeemed by the provisions of either of the two settlements. The New South Wales Court of Appeal held that, even though real estate can be ejusdem generis with personalty for the purposes of ademption,334 there was no ademption by the first settlement because what it gave differed fundamentally from the legacies in the will. Jacobs P best explained these differences:335 Under the will and codicil the four children took their residuary shares immediately upon the death of the father testator. It is true that they … took interests subject to divesting, but nevertheless vested interests. In respect of the purchase price of the house and the house itself the four children took no such interest. Their interests were contingent remainders after the death of their mother which might be very many years after they should obtain vested interests as residuary beneficiaries under the will. Such a residuary legacy should not be held to be adeemed by a contingent gift liable to long postponement.

However, the court reached the contrary conclusion regarding the settlement of shares. Under the settlement, the children received an equitable contingent remainder upon attaining age 21, compared to the interests under the will that, though vested, were liable to be divested if they did not attain the age prescribed (25 for the sons and 30 for the daughters). It ruled that these differences did not oust the presumption. The reasons for this were again best explained by Jacobs P:336 The terms of the settlement are more favourable to the children. Moreover, the nature of the settlement is such that it can fairly be described as an anticipation of the provision which the testator father intended to make for those children … The intention was to give them security to some extent pro tanto for what they would receive under the will and codicil if it were not altered. This in my view has all the characteristics of a portion.

[page 209]

Date at which valuation of property adeemed 7.87 To determine the extent to which a gift or settlement satisfies a prior legacy, the date at which the property adeemed is to be valued must be established, particularly where its value fluctuates. Commonly the gift or settlement is so immediate that the relevant date for its valuation is the date at which the gift was made or the settlement executed.337 But where, as in Lake v Quinton,338 the beneficial enjoyment of the gift or settlement is postponed, ‘the whole purpose of achieving equality among the children would be lost sight of if the donee had to be satisfied with property which by [that later date] might have become worthless’. And there is case authority to the effect that merely because the legacy, and the gift, are not ejusdem generis does not serve to rebut the presumption where the portion was valued at the time it was advanced.339

Subsequent advance for a specific purpose 7.88 Perhaps the leading judicial statement on ademption in the context of subsequent advances to persons not in loco parentis is that of Selborne LC in Re Pollock:340 The presumptions arising out of the parental relation do not of course extend to cases in which a legatee is a stranger to that relation. But numerous authorities have determined that if a legacy appears on the face of the will to be bequeathed (though to a stranger) for particular purpose and a subsequent gift appears by proper evidence to have been made for the same purpose, a similar presumption is raised prima facie in favour of ademption. And it is clear from the authorities, that evidence of the circumstances under which the subsequent gift was made including contemporaneous or substantially contemporaneous declarations of the donor (whether communicated to the donee or not) may be admissible in such a case. To constitute a particular purpose within the meaning of that doctrine it is not … necessary that some special use or application of the money, by or on behalf of the legatee … should be in the testator’s view. It is not less a purpose … if the bequest is expressed to be made in fulfilment of some moral obligation recognised by the testator, and originating in a definite external cause, though not of a kind which (unless expressed) the law would have recognised, or would have presumed to exist.

For example, in Salway v Snowden341 the testator bequeathed an annuity to his wife so that she could provide for herself a suitable residence, but shortly thereafter conveyed to her the matrimonial home. Holroyd J viewed the facts as giving rise to a ‘strong presumption’ that the testator conveyed the home so that his wife could continue to occupy it.342 This led his Honour to conclude as follows:343

That would indicate that he no longer contemplated her immediately removing from that house after his death, but rather that she should continue to live in it thereafter. That event occurred a very short time before his death, which must be taken into consideration in regarding the question of the intention of the testator, and the question before me is wholly a question of the intention of the testator. The particular purpose which the testator had in view when he bequeathed this annuity … was to enable her to provide herself with, and reside in, a suitable dwellinghouse; and I cannot conceive any other purpose for which his own dwellinghouse should be conveyed to his wife so shortly before his death.

Similarly, in Re Horrocks (deceased)344 Fair J held that the terms of a separation agreement adeemed the testamentary provision for the payment of an annuity from the testator to his [page 210] widow, as the purpose of both the testamentary provision and the separation agreement were the same, namely to provide maintenance for the wife. In reaching this conclusion, his Honour was influenced by the fact that the amount in the agreement exceeded that which the testator was legally obliged to provide by will, and that pursuant to the agreement the wife was entitled to an annuity immediately rather than upon the testator’s death.

Election in Equity Nature of election in succession law 7.89 The doctrine of ‘election’ in succession law, which owed its genesis to courts of equity, is distinct from its namesake at common law. In its common law iteration, election most commonly refers to the choice between alternative and inconsistent rights, often in contract; for example, an election between the right to terminate for breach of contract or insist on the performance of the contract.345 The foundation for election in equity is, it has been said, that ‘a person cannot accept and reject the same instrument’,346 sometimes phrased in terms of a person not being permitted both to ‘approbate and reprobate’ an instrument.347 It dictates that if an instrument professes to make a disposition

of property for the benefit of a person, ‘such person cannot accept a benefit under the instrument without at the same time conforming to all its provisions, and renouncing every right inconsistent with them’.348 The onus is on a person who sets up that a case for election has arisen.349 Relief takes the form of compensation, not forfeiture.350 The doctrine applies in two classes of case: ‘dual gifts’ and ‘mutual obligations’.351 Each is discussed below, although succession law targets chiefly the former.

‘Dual gifts’ Gifts to which doctrine applies 7.90 Cases of ‘dual gifts’ involve the purported disposal (usually by will) by a testator (A) of property belonging to a third party (B) while giving to B by the same instrument an interest in property owned by A. Buckley LJ in Re Gordon’s Will Trusts explained the operation of the doctrine in this context by way of example:352 If A by a disposition effected by an instrument such as a will confers a beneficial interest in property of which he is competent to dispose on B, and by the same instrument purports to confer a beneficial interest on C in property of which A is not competent to dispose, being the property

[page 211] of B, B may elect to adopt one of two courses. He may elect to accept the entire benefit under the will, in which case he will be equitably bound so far as he is able, to give effect to A’s purported gift to C; or he may elect not to give effect to that purported gift. In the latter case, [B] will not forfeit his interest under the will, but will be equitably bound to submit to C being compensated out of that interest, so far as practicable, for being deprived of the beneficial interest which A intended to give [C].

B’s rights here are not true alternatives, because in the above latter event B’s rights under the instrument are not necessarily destroyed. B is required only to give up his or her benefits under it to the extent necessary to compensate C (the disappointed beneficiary), and may retain any excess.353 In each case, the doctrine requires a clear intention on A’s part to dispose of certain property, which is not in fact A’s property, and a benefit given by the will to the true

owner of the property (B).354 At the same time, B’s acts will not be treated as constituting an equitable election if done in ignorance of the equitable duty to elect355 or without being fully informed as to the value of the relevant property(ies);356 after all, election means ‘free choice’,357 and a choice that is not informed is not, in law, a free choice. There is no need that the court be satisfied of A’s intention that B, were he or she to challenge or defeat any part of the will, be put to an election.358 Indeed, occasions in which A frames the will with the conscious intention of bringing the doctrine into play are likely to be rare. More likely the doctrine ‘applies because the testator has made a mistake’,359 by assuming an ability to do something that cannot be done of his or her own volition. This in turn provides a reason why some have queried the rationale for election in equity, at least to the extent that it is said to involve fastening on B’s conscience.360

Ouster of doctrine where intention inconsistent with it 7.91 Courts are reticent to invoke the doctrine of election absent a clear intention, whether express or arising by necessary implication, on the face of the will to dispose of property in a manner inconsistent with the rights of another (who is also a beneficiary under the will) in that property.361 The doctrine of election is therefore excluded where the relevant instrument contains a declaration of a particular intention inconsistent with it.362 Where the beneficial interest of the person who is sought to be made to elect is such that, for any reason, he or she [page 212] cannot be made to submit to that interest being applied in compensating the disappointed parties, the doctrine cannot apply.363 So, for example:364 If [the testator] intended to create an interest of such a character as would have the legal effect of inter alia preventing the beneficiary making provision for compensation under the doctrine of election, and the interest so created is not available in law for compensation when the time comes for making election, then the doctrine of election is excluded because the testator has created in fact an interest of that character, which is not so available, although the question of election was obviously not in his contemplation.

And if the testator has attached to a gift of a life estate a provision that the gift is to go to other beneficiaries if the devisee does any act whereby the rents and profits from that estate become payable to another person, the entire basis for curial interference is removed. This is because there is no available fund out of which to make compensation.365 7.92 A testator who uses general words in a gift is presumed thereby to intend to deal only with interests of his or her own, not those belonging to another person.366 This explains why a case of election can seldom be raised where the property is only described in terms more or less general.367 If a joint tenant of a particular property devises the property by will specifically to a cotenant, a case of election arises and the co-tenant must elect between his or her own interest and the interest he or she takes under the will. But if the testator does not dispose of the property specifically, but by general words, such as ‘all my lands and hereditaments’, no case for election arises because there is other property of the testator’s sufficient to satisfy the devise.368 For example, in Granot v Hersen369 the testator gave all his property to his trustees to pay a bequest and to transfer certain land to his son, and the residue to his daughter. The residue included a condominium in Switzerland, in which Swiss law gave the son a quarter interest. The will did not specifically refer to the condominium, and so the issue was whether the son was required to elect his entitlement under the will or that under Swiss law. The Ontario Court of Appeal held that, as the language of the will did not demonstrate an intention to dispose of the son’s interest in the condominium to the daughter, the doctrine of election had no application.370 The son was thus entitled to both the one-quarter interest and the gift under the will.

‘Mutual obligations’ 7.93 Equity may require a person with a beneficial interest in property under a disposition to submit that interest being resorted to in order to compensate another person who has been deprived of a beneficial interest under the same disposition in consequence of an action by the first person. Take, for example, the scenario where A and B enter into a mutual settlement pursuant to which A settles property upon trust under which B has a beneficial

interest, and B covenants to settle property on trust under which A and C will be entitled to a beneficial interest. If for some reason (say, because B is a minor at the date of the covenant) B repudiates the obligation to bring property into the settlement, equity will compel B to submit to A or C [page 213] (as the case may be) being compensated out of B’s beneficial interest in A’s trust fund, so far as practicable, for being deprived of A’s or C’s beneficial interest in B’s intended trust fund. In this case, equity intervenes by reason of B’s repudiation of the obligation to bring B’s own property into settlement for the benefit of A or C. In other words, B cannot equitably retain the whole of the beneficial interest under the trusts of the settlement and at the same time fail to fulfil part of the consideration for the settlement.371

1.

2. 3. 4.

5. 6.

See Anderson v Dupain [2013] NSWSC 108; BC201300886 at [30] per Lindsay J (noting that ‘[e]ven amongst lawyers, let alone lay people, the subtleties of any historical differences between the words “devise” and “bequeath” have generally been lost to view, and both have been overshadowed by the more general word “give”’). See 11.68–11.70. Paget v Huish (1863) 1 H & M 663 at 668; 71 ER 291 at 293 per Page-Wood VC. Re Culbertson (1966) 59 DLR (2d) 381 at 383–4 per Disbery J (QB(Sask)) (rev’d on appeal but not on this point: Re Culbertson (1967) 62 DLR (2d) 134 (CA(Sask))). See also Roberston v Broadbent (1883) 5 App Cas 812 at 815–16 per Earl of Selborne LC; McBride v Hudson (1962) 107 CLR 604 at 617; BC6200280 per Dixon CJ (‘What marks a bequest as specific is that its subject matter is designated as something that does at the time of the will, or shall at the time of the death of the testator, form an identifiable part of his property and is, so to speak, distinguished by the intention of the testator as ascertained from his will to separate it in his disposition from the rest of his property for the purpose of bequeathing it as the distinct subject of a testamentary disposition’); In the Will and Estate of Meier (deceased) [2004] VSC 337; BC200406007 at [14], [15] per Mandie J; Celantano Estate v Ross (2014) 62 BCLR (5th) 153; [2014] BCSC 27 at [18] per S A Donegan J. See, for example, Bothamley v Sherson (1875) LR 20 Eq 304 (bequest of ‘all my shares or stock in the Midland Railway Company’ held to be specific). Re Culbertson (1966) 59 DLR (2d) 381 at 384 per Disbery J (QB(Sask)) (rev’d on appeal but not on this point: Re Culbertson (1967) 62 DLR (2d) 134 (CA(Sask))). See also Re Plowright (deceased) [1971] VR 128 at 132 per Newton J (‘a general legacy is a gift of personalty described without reference to any part of the testator’s estate’); Romano v Ladewig [2003] QCA 530; BC200307196 at [22] per

7.

8.

9.

10.

11.

12.

13.

14. 15.

16. 17. 18. 19.

McPherson JA. Re Plowright (deceased) [1971] VR 128 at 132 per Newton J (‘It is a gift of something which must be provided at the expense of the testator’s general estate … if it is not included in his estate at his death’). If it is not practicable to purchase the property during the 12 months following death (the ‘executor’s year’: see 14.27, 14.28), the beneficiary is entitled to a sum equal to the value at the time plus interest from that time until payment: Re O’Connor [1948] Ch 628 at 635 per Roxburgh J; Re Plowright (deceased) [1971] VR 128 at 133–4 per Newton J. See, for example, Re Borne [1944] Ch 190 (where prior to the testator’s death the stock she had bequeathed was compulsorily acquired by the government, but ultimately the executors were paid its value, to which the intended legatee was entitled); Re O’Connor [1948] Ch 628 (where Roxburgh J held that a bequest of 10,000 preference shares in a private company, where the testator held only 9000 shares at his death, was a general legacy, noting that ‘the court leans strongly in favour of a general legacy’: at 632). See, for example, Re Gray (1887) 36 Ch D 205 (where the company in which the shares were bequeathed had ceased to exist, Kay J held that ‘the legacy fails … because it has become, by circumstances of which the testator was aware, utterly impossible to determine what amount of money should be set apart for the persons entitled under the gift’: at 211). Cf Re Plowright (deceased) [1971] VR 128 at 134 per Newton J (noting that difficulty in arriving at an accurate valuation is not by itself productive of the legacy failing for uncertainty). Re O’Connor [1948] Ch 628 at 632 per Roxburgh J; McBride v Hudson (1961) 107 CLR 604 at 616– 17 per Dixon CJ, at 630 per Windeyer J; BC6200280; Re Plowright (deceased) [1971] VR 128 at 132 per Newton J (although adding that he saw ‘no logical basis for the presumption in favour of general legacies, and in the case of a legacy of a definite number of shares there seems to me to be every reason for treating it as specific, in the absence of a plain expression of intention to the contrary, at all events if at the date of the will the testator owned that number of shares, or a larger number’: at 132–3); Romano v Ladewig [2003] QCA 530; BC200307196 at [22] per McPherson JA; Celantano Estate v Ross (2014) 62 BCLR (5th) 153; [2014] BCSC 27 at [19] per S A Donegan J. See, for example, Re Gray (1887) 36 Ch D 205; Re Borne [1944] Ch 190; Re O’Connor [1948] Ch 628. This is predicated, at least partly, on the fact that the doctrine of ademption only applies to specific, and not general, gifts: see 7.25. See, for example, McBride v Hudson (1961) 107 CLR 604; BC6200280. See also Re Plowright (deceased) [1971] VR 128 at 132 per Newton J (who distinguished a gift of ‘Two thousand fully paid 5s shares in Reids’ Quarries Ltd’, being general, from one expressed as a gift of ‘Two thousand of my fully paid 5s shares in Reids’ Quarries Ltd’, being specific). Theobald, p 340. Re Culbertson (1966) 59 DLR (2d) 381 at 384–5 per Disbery J (QB(Sask)) (rev’d on appeal but not on this point: Re Culbertson (1967) 62 DLR (2d) 134 (CA(Sask))). See also Walford v Walford [1912] AC 658 at 663 per Viscount Haldane LC (describing a demonstrative legacy as ‘simply a general legacy, with the quality attached to it that it is directed to be paid out of a specific fund, and, if there is a shortage of assets and that fund remains, is paid out of that fund without abating’); Celantano Estate v Ross (2014) 62 BCLR (5th) 153; [2014] BCSC 27 at [25] per S A Donegan J. [1937] 1 All ER 602. Re Webster [1937] 1 All ER 602 at 604. As to ademption in this context, see 7.23–7.26. See, for example, Re Pollock (deceased) [1964] VR 554 at 556 per Gillard J.

20. 21. 22.

23.

24.

25. 26. 27. 28. 29.

30. 31. 32.

33.

34. 35. 36. 37. 38. 39.

[1936] SASR 15. See, for example, the definition of ‘pecuniary legacy’ in the probate statutes in several jurisdictions: Qld s 5; Tas s 3(1); Vic s 5(1). Blight v Hartnoll (1883) 23 Ch D 218 at 223 per Jessel MR, at 224 per Lindley LJ; Re Bagot [1893] 3 Ch 348; Armstrong v Children’s Hospital at Westmead [2008] NSWSC 1315; BC200811109 at [16] per Bryson AJ. The Queensland legislation is unique in defining ‘residuary estate’, and does so in accord with its generally understood meaning (namely ‘(a) property of the deceased that is not effectively disposed of by his or her will; and (b) property of the deceased not specifically devised or bequeathed but included (either by a specific or general description) in a residuary disposition’: Qld s 55). As to a contrary intention, see, for example, Re Fraser [1904] 1 Ch 726 (where the testator had made an express exception of the chattels real from a general bequest and had not made any bequest of them after he knew that his brother to whom he had bequeathed them had predeceased him; accordingly, as the testator must be taken to have known that the bequest to his brother would be ineffective, the English Court of Appeal held that the chattels real were exempted from the general bequest and should be distributed upon the intestacy rules as opposed to a falling into residue). ACT s 25 (limited to realty); NSW s 31; NT s 30; Qld s 33G; SA s 28 (limited to realty); Tas s 45; Vic s 35; WA s 26(1)(b). These provisions follow s 25 of the Wills Act 1837 (UK), as to which see Theobald, pp 461–3. These provisions, other than in the Australian Capital Territory and South Australia, expressly exclude powers of appointment from their operation: NSW s 31(3); NT s 30(1); Qld s 33G(3); Tas s 45(1); Vic s 35(3); WA s 26(1)(b). [1997] 1 NZLR 38. The intestacy rules are discussed in Chapter 9. NSW s 42(1); NT s 41(1); Qld s 33O(1); Tas s 56(1); Vic s 46(1); WA s 26(1)(f). Re Melbourne [2016] VSC 514; BC201607330 at [30] per McMillan J. As to the presumption against intestacy, see 9.3–9.5. NSW s 42(2); NT s 41(2); Qld s 33P(1); Tas s 56(2); Vic s 46(3); WA s 26(1)(g). This provision was enacted against the backdrop of law reform recommendations: see VLRC, 1994, p 153; QLRC, MP 29, pp 91–3. See also Re Melbourne [2016] VSC 514; BC201607330 at [32] per McMillan J. [2014] 1 Qd R 553; [2012] QSC 183; BC201205055. Re Gibson (deceased) [2014] 1 Qd R 553; [2012] QSC 183; BC201205055 at [30]. Re Gibson (deceased) [2014] 1 Qd R 553; [2012] QSC 183; BC201205055 at [31], [32]. See also Trust Co of Australia Ltd v Krannin [2007] 1 Qd R 188; [2006] QSC 280; BC200607865 at [28]–[30] per Fryberg J; Arnott v Kiss [2014] NSWSC 1385 at [53] per Hallen J. See, for example, Re Olive [1989] 1 Qd R 544 (where the testator disposed of her residuary estate in portions of two-fifteenths, three-fifths and one-fifteenth, leaving a one-fifth portion unallocated, Demack J found that, while the relevant subsection was a beneficial provision, it had no application where the residuary fund that had been disposed of in fractional parts was only part of the residuary fund, and thus distinguished the failure to dispose of a fractional part at all from the disposition in fractional parts in circumstances where there was a failure of one or more parts for some reason); Stephens v Stephens [2007] QSC 16; BC200700465 (which followed Re Olive). NSW s 42(3); NT s 41(3); Qld ss 33O(2), 33P(2); Tas s 56(3); Vic s 46(2), (4); WA s 26(1). See G L Certoma, ‘Particular Residue: True Residue or Specific Legacy?’ (1981) 55 ALJ 193. (1880) 28 WR 866. Patching v Barnett (1880) 28 WR 866 at 889–90. (1975) 11 SASR 424. In the Estate of MacGregor (deceased) (1975) 11 SASR 424 at 427–8 (footnote supplied).

40. 41.

42. 43. 44. 45. 46.

47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57.

58. 59. 60. 61. 62. 63. 64. 65.

66. 67. 68.

See Re Mason [1901] 1 Ch 619 at 626 per Rigby LJ. The 30-day time frame is directed at avoiding the multiplicity of administration of the same property through several estates that might otherwise occur upon successive deaths without unduly delaying the distribution to beneficiaries: Desmarchelier v Stone [2005] 2 Qd R 243; [2004] QSC 458; BC200408956 at [8] per Moynihan J; Donald v Guillesser [2016] 1 Qd R 583; [2015] QCA 92; BC201504243 at [14] per Morrison JA, with whom Gotterson and Philippides JJA concurred. ACT s 31C; NSW s 35; NT s 34; Qld s 33B; Tas s 49; Vic s 39(1), (2) (see VLRC, 1994, pp 136–9). The intestacy rules are discussed in Chapter 9. See 1.2. See generally Theobald, pp 369–77. Cf Re Ladd [1932] 2 Ch 219 (where a wife’s will expressed ‘[t]o the intent that this my Will shall take effect, whether I survive or predecease my Husband’ was held not to protect against lapse in the event, which transpired, that her husband predeceased her; Clauson J found it impossible ‘to spell out of those words an effective intention that her husband’s estate should take the benefit of the bequest in case he were to predecease her’: at 226). See, for example, Sibley v Cook (1747) Atk 572; 26 ER 1130. Re Cousen’s Will Trusts [1937] Ch 381 at 387 per Farwell J. [1904] 2 Ch 30 at 33. [1948] Ch 232. Re Leach [1948] Ch 232 at 237. See, for example, Theobald, pp 445–6. See generally G E Dal Pont, Law of Charity, 2nd ed, LexisNexis Butterworths, Australia, 2017, Ch 15. See generally G E Dal Pont, Law of Charity, 2nd ed, LexisNexis Butterworths, Australia, 2017, Ch 16. (2004) 28 WAR 496; [2004] WASC 36; BC200400986. As to the South Australian position, see 7.20. ACT s 31(1)–(3);NSW s 41(1), (2); NT s 40(1), (2); Qld s 33N(1), (2); Tas s 55(1), (2); Vic s 45(1), (2), (4); WA s 27(1), (2). See further QLRC, MP 29, pp 83–90; National Committee for Uniform Succession Laws, Wills: The Anti-Lapse Rule, Queensland Law Reform Commission, Report 61, March 2006, Ch 3 (favouring a model provision in line with Qld s 33N). QLRC, MP 29, p 84. ACT s 31(1) (or from extrinsic evidence: see ACT s 12B); NSW s 41(3); NT s 40(3); Qld s 33N(3) (b); Tas s 55(3)(b); Vic s 45(3); WA s 27(1). ACT s 31(4); NT s 40(4)(a); Qld s 33N(4); Tas s 55(4); Vic s 45(3). NSW s 41(5); NT s 40(4)(b); Qld s 33N(5); Tas s 55(5); WA s 27(3). ACT s 31(5); NT s 40(5); Qld s 33N(3)(a); Tas s 55(3); Vic s 45(4). Wills Act 1837 (UK) s 33 (which has since been amended with effect on 1 January 1983). See further QLRC, MP 29, pp 84–5; Theobald, pp 450–3. SA s 36. As to contrary intention, see, for example, Re Wolson [1939] Ch 780 (where a child of the testator (EP) was entitled to a share contingently on her attaining the age of 25, but predeceased the testator before attaining that age, leaving issue, Crossman J held that the section did not apply ‘to save a contingent interest which has already failed’: at 783). See generally Hardingham, Neave and Ford, pp 229–36. Re Harvey’s Estate [1893] 1 Ch 567. Matthews v Williams (1941) 65 CLR 639 at 650; BC4300042 per Rich ACJ, Dixon and McTiernan

69.

70. 71.

72. 73. 74. 75. 76. 77.

78. 79.

80. 81. 82. 83.

84. 85. 86. 87. 88. 89.

JJ. See, for example, Re King (deceased) [1953] VLR 648 (where the testatrix’s will, in providing that ‘in the event of my said husband predeceasing me … I give devise and bequeath the whole of my property … to such of them my two sons [S] and [W] as shall be living at the date of my death and if both shall then be living as tenants in common in equal shares’, was held to evince a contrary intention, O’Bryan J observing that the testatrix had thereby indicated that if one son did not survive her, the property should go to the surviving son, not to the issue of the deceased son: at 651). As to what is meant by a ‘specific gift’, see 7.4. Brown v Heffer (1967) 116 CLR 344 at 348; BC6700340 per Barwick CJ, McTiernan, Kitto and Owen JJ; Johnston v Maclarn [2002] NSWSC 97; BC200200525 at [13]–[15] per Young CJ in Eq (using the terms ‘extinction’ and ‘annihilation’ of the subject matter). Re Slater [1907] 1 Ch 665 at 672 per Cozens-Hardy MR; Re Stokell (1913) 9 Tas LR 7. Durrant v Friend (1852) 5 De G & Sm 343; 64 ER 1145. See, for example, Trustees Executors and Agency Co Ltd v Scott (1898) 24 VLR 552; Re Mercer [1944] 1 All ER 759. See 7.81–7.88. As to ‘general’ gifts, see 7.6, 7.7. See, for example, Robinson v Addison (1840) 2 Beav 515; 48 ER 1281; Re Willcocks [1921] 2 Ch 327; Re Gage [1934] Ch 536; Re O’Connor [1948] Ch 628 at 632 per Roxburgh J; Re Plowright (deceased) [1971] VR 128 at 132 per Newton J. Midland Bank Executor and Trustee Co Ltd v Rose [1949] 1 Ch 78. Christensen v McKnight (SC(NSW), Hodgson J, 2 March 1995, unreported) BC9504314 at 5 (‘ademption depends on the intention of the deceased as disclosed by the will, not any subsequent intention; and if the intention disclosed by the will is to give particular real estate and nothing else, then it does not matter how the deceased ceased to have the real estate to give’). [1907] 1 Ch 656 at 671. See 7.34. Re Slater [1907] 1 Ch 665 at 672 per Cozens-Hardy MR. They are certainly not limited to shares, though. See, for example, NSW Trustee and Guardian v Ritchie [2011] NSWSC 715; BC201105041 (where Rein J ruled that a testamentary gift of the moneys in the ‘credit union account conducted at the Lands Department Credit Union’ was not adeemed by the fact that the Lands Department Credit Union merged with Reliance Credit Union, in view of evidence showing that the Lands Department Credit Union was absorbed into Reliance Credit Union and that the account number with the Reliance Credit Union was the same as the account number with the Lands Department Credit Union; but as regards the testamentary gift of ‘funds received from the State Authorities Superannuation Board’, his Honour found that ‘the proceeds received from the State Authorities Superannuation Board have become so mixed with other funds that the monies obtained from the State Authorities Superannuation Board can no longer be identified’, and so the bequest had been adeemed: at [7]). [1907] 1 Ch 665. (1887) 36 Ch D 205. [1912] 1 Ch 29. (1962) 107 CLR 604; BC6700340. ACT s 24; NSW s 30; NT s 29; Qld s 33E; SA s 27; Tas s 44; Vic s 34; WA s 26(1)(a). Cf Re Sikes [1927] 1 Ch 364 (where the testator’s will contained a bequest of ‘my piano’, which at the time of the will was a piano converted into a ‘player’ piano, but was replaced shortly thereafter

90. 91. 92. 93. 94. 95. 96.

97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107.

108. 109. 110. 111. 112. 113. 114. 115.

with a much more expensive piano known as an electric motor player piano, which was in her possession when she died; in the brief judgment, containing little in the way of reasoning, Clauson J held that, by the expression ‘my piano’, the testator referred to a particular thing and intended to give the particular piano then in her possession and no other, which therefore represented a contrary intention sufficient to take the bequest out of the operation of the section). (1871) LR 11 Eq 542 at 551–2. [1916] VLR 540. In the Will of Smith (deceased) [1916] VLR 540 at 544. (1866) LR 2 Eq 669. Re Gibson (1866) LR 2 Eq 669 at 673. Pohlner v Pfeiffer (1964) 112 CLR 52 at 77; BC6400570 per Windeyer J. See, for example, Re Morton (deceased) [1963] VR 40 (even though Pape J regretted such an outcome on the facts, as it dictated that those whom the testator intended to benefit would take nothing under the will, whereas the property would go to persons the testator did not intend to benefit: at 53–4); Re Tarca (deceased) (1981) 29 SASR 152. See further Haines, pp 115–16. See Dal Pont, pp 1191–3. Brown v Heffer (1967) 116 CLR 344; BC6700340. See, for example, Re Lewis’ Will Trusts [1937] Ch 118; In the Estate of Stanley (deceased) [1965] SASR 159. Fairweather v Fairweather (1944) 69 CLR 121 at 129; BC4400028 per Latham CJ. See, for example, In the Estate of Woithe (deceased) (1972) 3 SASR 189; Re Beames (deceased) (1979) 22 SASR 595. See Haines, Ch 28. Lawes v Bennett (1785) 1 Cox Eq Cas 167; 29 ER 1111. See, for example, Re Miller [1991] 1 Qd R 359. See, for example, Re Lewis (deceased) [1964] VR 537. See 7.26. Jenkins v Jones (1866) LR 2 Eq 323 at 328–9 per Stuart VC. Basan v Brandon (1836) 8 Sim 171 at 175–6: 59 ER 68 at 70 per Shadwell VC. See, for example, Power v Power [2011] NSWSC 288; BC201102520 (where the attorney’s authority under an enduring power of attorney was expressed to be conditional upon the testator’s treating medical practitioner certifying that the deceased was no longer physically or mentally able to sign documents or look after her own affairs, and the attorney’s acts in disposing of specific gifts without fulfilling that condition was therefore unauthorised). Re Dorman (deceased) [1994] 1 WLR 282 at 288 per Neuberger QC; Re Affairs of Hartigan (SC(WA), Parker J, 9 December 1997, unreported) BC9707385. [1997] 1 Qd R 110. On this point see G E Dal Pont, Powers of Attorney, 2nd ed, LexisNexis Butterworths, Australia, 2015, pp 16–18. Cf Re Dorman (deceased) [1994] 1 WLR 282 (where, in similar circumstances, the court was able to hold that there had been a change in name and form only). Re Viertel [1997] 1 Qd R 110 at 115–16. (1866) LR 2 Eq 323. Jenkins v Jones (1866) LR 2 Eq 323 at 329. Being the reason why Judge Rich QC in Banks v National Westminster Bank [2005] EWHC 3479 (Ch) declined to follow Re Viertel [1997] 1 Qd R 110 (confining the Jenkins v Jones ‘exception’ to cases where the conversion of property ‘is not only made without the testator’s knowledge but also

116.

117. 118.

119. 120. 121. 122. 123. 124. 125. 126. 127.

128.

without either his or any other lawful authority’, adding that ‘[i]n Jenkins v Jones the decision does not depend upon the ignorance of the testator; it is the absence of his intention to convert the property, because of course his family were acting without either his consent or other lawful authority, which, in my judgment, justifies the court’s decision’: at [28]). Cf Simpson v Cunning (2011) 4 ASTLR 584; [2011] VSC 466; BC201107296 at [45] per Hargrave J (who accepted, in line with Banks, that Jenkins v Jones was not intended to create a new exception to the ademption principle, but was an application of the existing exception for unauthorised dispositions of the relevant asset without the knowledge or consent of the testator, but was ‘nevertheless of the view that a further exception to the ademption principle, to the effect expressed in Re Viertel, constitutes a justified extension of the common law to reflect current circumstances’). See, for example, Re Affairs of Hartigan (SC(WA), Parker J, 9 December 1997, unreported) BC9707385 (who ‘found the analysis of the position and reasoning of Thomas J helpful and persuasive’, adding that ‘[t]he heart of that reasoning turns on the sale of property by a person other than the testator at a time when the testator is incapable of selling the property or of altering an existing will to give effect to the testator’s intentions in the changed circumstances’: at 10); Johnston v Maclarn [2002] NSWSC 97; BC200200525; Mulhall v Kelly (2006) 1 ASTLR 394; [2006] VSC 407; BC200608993; Ensor v Frisby [2010] 1 Qd R 146; [2009] QSC 268; BC200908165; Power v Power [2011] NSWSC 288; BC201102520 at [36] per Gzell J (who did not, however, express a concluded view because on the facts the sale under the power of attorney was made without authority); Simpson v Cunning (2011) 4 ASTLR 584; [2011] VSC 466; BC201107296; Public Trustee of Queensland v Lee (2011) 5 ASTLR 142; [2011] QSC 409; BC201110041. Simpson v Cunning (2011) 4 ASTLR 584; [2011] VSC 466; BC201107296 at [46] per Hargrave J. See, for example, Re Affairs of Hartigan (SC(WA), Parker J, 9 December 1997, unreported) BC9707385 (application by the Public Trustee, although Parker J phrased the relevant principle more broadly, such that ‘it ought not to be a material distinction whether or not the person effecting the sale knew of the terms of the will’: at 10); Simpson v Cunning (2011) 4 ASTLR 584; [2011] VSC 466; BC201107296 (application by the Public Advocate, although Hargrave J also phrased the relevant principle more broadly, opining that ‘[t]here is no good reason to limit it to circumstances where the attorney has no knowledge of the terms of the will, and thus of the possible effect of the ademption principle following a sale’: at [47]). Simpson v Cunning (2011) 4 ASTLR 584; [2011] VSC 466; BC201107296 at [45] per Hargrave J. (2012) 84 NSWLR 263; [2012] NSWCA 39; BC201201586. NSW Trustee and Guardian Act 2009 (NSW) s 83, as to which see 7.41. RL v New South Wales Trustee and Guardian (2012) 84 NSWLR 263; [2012] NSWCA 39; BC201201586 at [91]. See 7.38–7.41. Re Gibson (deceased) [2014] 1 Qd R 553; [2012] QSC 183; BC201205055 at [21]–[28] per Mullins J; Public Trustee of Queensland v Stibbe [2012] QSC 357; BC201210997 at [23]–[27] per Ann Lyons J. See D Browne, ‘Ademptions Exemptions had Gone Too Far’ (May 2012) 50 LSJ 59. See VLRC, 2013, recommendation 10 (to the effect that guardianship legislation should provide for a person acting under an enduring power of attorney (financial) to apply to the Victorian Civil and Administrative Tribunal for a full or redacted copy of a will made by the donor of the power). Powers of Attorney Act 2003 (NSW) s 22(1); Powers of Attorney Act 2000 (Tas) s 32AH(2) (inserted by the Powers of Attorney Amendment Act 2013 (Tas), and applies to, and in relation to, an enduring power of attorney created before the provision commenced (1 January 2014), but only if the donor of the power was not mentally incapacitated before it commenced: s 58B(12)). Powers of Attorney Act 2003 (NSW) s 22(2); Powers of Attorney Act 2000 (Tas) s 32AH(3).

129. 130. 131. 132. 133. 134.

135. 136. 137. 138.

139.

140. 141. 142. 143. 144. 145.

Powers of Attorney Act 2003 (NSW) s 23(1)(b); Powers of Attorney Act 2000 (Tas) s 32AH(4). Powers of Attorney Act 2003 (NSW) s 23(2); Powers of Attorney Act 2000 (Tas) s 32AH(5). Powers of Attorney and Agency Act 1984 (SA) s 11A(1). The Queensland Civil and Administrative Tribunal is given the same jurisdiction and powers for enduring powers of attorney as the Supreme Court: Powers of Attorney Act 1998 (Qld) s 109A. Powers of Attorney Act 1998 (Qld) s 107(1), (1A), (2). Powers of Attorney Act 1998 (Qld) s 107(3). In Neuendorf v Public Trustee of Queensland [2015] 1 Qd R 513; [2013] QSC 156; BC201310253 at [22] Martin J noted that while the matters that might be the subject of consideration when determining an appropriate level of compensation will vary from case to case, some matters will always be of general interest, including: (a) the size of the estate; (b) the identity of the other beneficiaries and the nature of the gifts to them; (c) the proportions that the gifts to the applicants bear to the whole estate; (d) the actions of the attorney; (e) whether there was any default by the attorney; (f) what was done with the funds after the sale took place; (g) the costs that have been incurred and that will be paid out of the estate; and (h) what the position would have been had the property not been sold. In Neuendorf a principal had executed an enduring power of attorney appointing the first applicant as attorney. The principal’s will bequeathed a house to the applicants, and the first applicant was appointed executor of the will. As a bond was required for the principal’s nursing home, the first applicant sold the house in question ignorant of the contents of the will. The applicants succeeded in an application for compensation, Peter Lyons J seeing this as a case where actions properly taken have resulted in a loss to the attorney and in which s 107 should respond in the attorney’s favour with an award of appropriate compensation: at [32]. See also Moylan v Rickard [2010] QSC 327; BC201010256; Public Trustee of Queensland v Stibbe [2012] QSC 357; BC201210997. Powers of Attorney Act 1998 (Qld) s 107(5). Ensor v Frisby [2010] 1 Qd R 146; [2009] QSC 268; BC200908165 at [20] per McMurdo J. See, for example, A W Collins, ‘How Should Queensland Courts Respond when a Specific Gift has been Adeemed by Attorneys Lawfully Exercising their Powers?’ (2013) 20 JCULR 61. NSW Trustee and Guardian Act 2009 (NSW) s 83; Aged and Infirm Persons’ Property Act 1979 (NT) s 22; Guardianship and Administration Act 2000 (Qld) s 60 (see also Public Trustee Act 1978 (Qld) s 89); Aged and Infirm Persons’ Property Act 1940 (SA) s 16A; Guardianship and Administration Act 1995 (Tas) s 60; Guardianship and Administration Act 1986 (Vic) s 53. Daniels v Scrivenor [1997] 2 VR 595 at 599; BC9603850 per Gray J. See also Re Parkinson [1952] Tas SR 9 at 12 per Gibson J (‘Having regard to the mischief to be remedied, I think that the word [‘disposition’ in parallel earlier Tasmanian legislation] should be construed in a large sense, so as to minimise the frustration of testamentary intentions where the patient’s interests have required interference with the patient’s property’). [1997] 2 VR 595; BC9603850. Daniels v Scrivenor [1997] 2 VR 595 at 599; BC9603850. A point noted by Hargrave J in Simpson v Cunning (2011) 4 ASTLR 584; [2011] VSC 466; BC201107296 at [42] in a plea for statutory reform in Victoria. See VLRC, 2013, recommendation 9. Once the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Bill 2016 (Vic) is enacted. Townson v Tickell (1819) 3 B & Ald 31 at 38; 106 ER 575 at 577, endorsed by Latham CJ in Federal Commissioner of Taxation v Cornell (1946) 73 CLR 394 at 401; BC4690104. See also 39; 578 per Best J (‘It seems to be contrary to common sense to say that an estate should vest in a man not assenting to it: There must be the assent of the party before any interest in the property can pass to him’).

146. See, for example, Re Sullivan [1930] 1 Ch 84. 147. See, for example, Vegners v Federal Commissioner of Taxation (1989) 90 ALR 547; Federal Commissioner of Taxation v Ramsden (2005) 58 ATR 485; [2005] FCAFC 39; BC200501419 (although neither case involved beneficiaries of a deceased estate, but instead beneficiaries of an inter vivos trust). 148. See, for example, Re Young [1913] 1 Ch 272; Re Moss (1977) 77 DLR (3d) 317. 149. See generally N Crago, ‘Principles of Disclaimer of Gifts’ (1999) 18 UWALR 65. 150. In the Estate of Simmons (deceased) (1990) 56 SASR 1 at 5 per Legoe J. 151. See, for example, Probert v Commissioner of State Taxation (1998) 72 SASR 48; BC9805205. 152. Re Birchall (1889) 40 Ch D 436. 153. See, for example, Gamer v Whip [2012] QSC 209; BC201206094; Micallef v Micallef [2012] QSC 239; BC201206605 (where beneficiaries under a will purported to ‘renounce’ their residual interests in the estate in favour of another identified beneficiary, Applegarth J held that the renunciations operated as assignments, not as ‘disclaimers’). 154. See, for example, Re Hodge [1940] Ch 260 (involving an unsuccessful attempt to disclaim after a period of 6 years, during which time the executor-beneficiary had continued to pay annuities to a third party as a condition to the gift). 155. Re Young [1913] 1 Ch 272 at 276 per Swinfen Eady J; Re Cranstoun (deceased) [1949] Ch 523 at 527– 8 per Romer J; Lewis v Lohse [2003] QCA 199; BC200302360 at [9] per Williams JA, with whom de Jersey CJ and Holmes J concurred. 156. Federal Commissioner of Taxation v Ramsden (2005) 58 ATR 485; [2005] FCAFC 39; BC200501419 at [52] per the court. 157. Tantau v MacFarlane [2010] NSWSC 224; BC201001615 at [116]–[120] per Ward J. 158. Probert v Commissioner of State Taxation (1998) 72 SASR 48; BC9805205 at 54 per Olsson J. 159. Probert v Commissioner of State Taxation (1998) 72 SASR 48; BC9805205 at 54 per Olsson J. 160. Lady Naas v Westminster Bank Ltd [1940] AC 366 at 400 per Lord Wright. 161. [2016] 1 Qd R 211; [2015] QSC 85; BC201502565. 162. Re Bisset (deceased) [2016] 1 Qd R 211; [2015] QSC 85; BC201502565 at [43]. 163. Gutherie v Hawkins (1883) 12 Ch D 573. 164. Re Hawkins (1880) 13 Ch D 470. 165. As to the assignment of an expectancy (in equity), see Dal Pont, pp 89–91; Meagher, Gummow and Lehane, pp 256–61. For an example in the succession law context, see Gamer v Whip [2012] QSC 209; BC201206094. 166. See 1.2. 167. See 10.43. 168. [2001] 3 All ER 552. 169. Re Smith (deceased) [2001] 3 All ER 552 at [11] per Anthony Mann QC. 170. See W Goodhart, ‘Disclaimer of Interest on Intestacy’ [1976] Conv 292. 171. As to the intestacy rules of distribution, see Chapter 9. 172. R v Skinner [1972] 1 NSWLR 307; Re Scott (deceased) [1975] 2 All ER 1033; In the Estate of Simmons (deceased) (1990) 56 SASR 1. 173. Succession Act 2006 (NSW) s 139(a); Intestacy Act 2010 (Tas) s 40(a), as to which see 9.13. 174. See 9.9, 9.10. 175. In the Estate of Simmons (deceased) (1990) 56 SASR 1 at 10–11. As to disclaimer by beneficiaries, see further 7.42–7.46. 176. Cleaver v Mutual Reserve Fund Life Assurance [1892] 1 QB 147 at 156–7 per Fry LJ. See also Re Crippen [1911] P 108 at 112 per Evans P (‘no person can obtain, or enforce, any rights resulting to him from

177.

178.

179. 180. 181. 182.

183.

184. 185. 186. 187.

188. 189.

his own crime; neither can his representative, claiming under him, obtain or enforce any such rights. The human mind revolts at the very idea that any other doctrine could be possible in our system of jurisprudence’); Edwards v State Trustees Ltd [2016] VSCA 28; BC201601402 at [188] per Santamaria JA (describing ‘the rule that a person should not benefit directly from his own crime’ as ‘a rule as fundamental as rules such as the rules of natural justice or the principle of legality’). It has even been suggested that some equivalent forfeiture approach be adopted where there it is proven that a beneficiary under an existing (but invalid will) has engaged in undue influence, forgery or other undesirable behaviour, in an effort to heighten deterrence vis-à-vis this behaviour: E G Hosemann, ‘Protecting Freedom of Testation: A Proposal for Law Reform’ (2014) 47 U Mich J L Reform 419. Yet it may be that the rule goes back earlier, to the case of Amicable Assurance Society v Bolland (1830) 4 Bli (NS) 194; 5 ER 70 (known as Fauntleroy’s Case) (where the deceased was convicted of forgery and was hanged, and the House of Lords prevented the assignee of the forger from claiming the benefit of a life policy). Forfeiture Act 1870 (UK). See Dugan v Mirror Newspaper Ltd (1978) 142 CLR 583 at 602–6; BC7900028 per Jacobs J; J J Finkelstein, ‘The Goring Ox: Some Historical Perspectives on Deodands, Forfeitures, Wrongful Death and the Western Notion of Sovereignty’ (1973) 46 Temple LQ 169. Rivers v Rivers (2002) 84 SASR 426; [2002] SASC 437; BC200207984 at [30] per Duggan J (‘The forfeiture rule denies inheritance’). See, for example, Davis v Worthington [1978] WAR 144; Public Trustee v Fraser (1987) 9 NSWLR 433; Public Trustee v Hayles (1993) 33 NSWLR 154; BC9303904. See, for example, Re Tucker (1920) 21 SR (NSW) 175; Re Sangal (deceased) [1921] VLR 355; Re Sigsworth [1935] Ch 89; Re Callaway [1956] Ch 559. See, for example, Re Barrowcliff [1927] SASR 147; Re Thorp and the Real Property Act [1962] NSWR 889; Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407; Kemp v Public Curator of Queensland [1969] Qd R 145; Re Stone [1989] 1 Qd R 351. There is English and Scottish authority to the effect that the entitlement to a statutory widow’s pension also comes within the forfeiture rule, with the effect that that entitlement does not arise if the applicant unlawfully kills her husband: R v Chief of National Insurance Commissioner [1981] QB 758; Burns v Secretary of State for Social Services [1985] SLT 351. See, for example, Re Estate of Fitter (deceased) [2005] NSWSC 1188; BC200510083. See, for example, Permanent Trustee Co Ltd v Gillett (2004) 145 A Crim R 220; [2004] NSWSC 278; BC200401871. Re Royse (deceased) [1985] Ch 22; Troja v Troja (1994) 35 NSWLR 182. See further 19.23. See 10.71. Cf the position at common law in the United States, which is not so clear in this regard, prompting some States to extend forfeiture statutes to what would otherwise be entitlements to arrange for the deceased’s burial or cremation: see M E Bremenstul, ‘Victims in Life, Victims in Death — Keeping Burial Rights Out of the Hands of Slayers’ (2013) 74 La L Rev 213 at 232–5 (who argues that all States should introduce provisions directed to forfeiture if the person with the right to control the disposition of the deceased’s remains is a suspect likely to be prosecuted, arrested or charged with the death). Re Houghton [1915] 2 Ch 173. See, for example, Re Pitts [1931] 1 Ch 546; Re Plaister (1934) 34 SR (NSW) 547; Clift v Clift [1964] NSWR 1896; Re Pechar [1969] NZLR 574; Re Dreger (1976) 9 DLR (3d) 47; Kemperle v Public Trustee (SC(NSW), Powell J, 20 November 1985, unreported) BC8500411; Re Vyner (SC(Qld),

Shepherdson J, 24 August 1999, unreported) BC9905206. 190. Troja v Troja (1994) 33 NSWLR 269 at 283 per Kirby P, dissenting but not on this point. See also Permanent Trustee Co Ltd v Freedom from Hunger Campaign (1991) 25 NSWLR 140 at 148 per Rolfe J. 191. (1895) 24 SCR 650. 192. Cf Re Jaworenko Estate [2013] ABQB 517 (where the deceased’s de facto wife was not precluded from inheriting from the deceased even though her negligence caused the accident that precipitated the deceased’s death, as she had not been found guilty of any charges arising from the accident); In the Estate of Thomson [2015] QSC 29; BC201500796 (where Boddice J was unconvinced, on the balance of probabilities, that the husband (deceased) had unlawfully killed his wife, who was last seen alive nearly 7 years before the husband died). 193. Helton v Allen (1940) 63 CLR 691 at 710; BC4000011 per Dixon, Evatt and McTiernan JJ. 194. [1972] Ch 544. 195. Re Giles (deceased) [1972] Ch 544 at 552. 196. Re Giles (deceased) [1972] Ch 544 at 552, citing from Hamilton LJ in In the Estate of Hall (deceased) [1914] P 1 at 7. 197. See, for example, R v Chief National Insurance Commissioner [1985] SLT 351; Re H [1990] 1 FLR 441; Dunbar v Plant [1998] Ch 412. 198. See Theobald, pp 207–9. 199. See, in particular, Re K (deceased) [1985] Ch 85; [1986] Ch 180 (CA); Chadwick v Collinson [2015] WTLR 25; [2014] EWHC 3055 (Ch); Henderson v Wilcox [2016] WTLR 475; [2015] EWHC 3469 (Ch). 200. (1985) 2 NSWLR 188. 201. Pursuant to Crimes Act 1900 (NSW) s 24. 202. (1987) 9 NSWLR 433 at 444. See also Public Trustee v Hayles (1993) 33 NSWLR 154 at 164; BC9303904 per Young J (maintaining that the true basis of the rule is founded in the principle of unconscionability). 203. Re Keitley [1992] 1 VR 583. 204. Permanent Trustee Co Ltd v Freedom from Hunger Campaign (1991) 25 NSWLR 140 (involving a suicide pact; his Honour ruled that, although the homicide was unlawful, and had the consequences of securing the benefit to the killer, this was merely consequential, and not the purpose of the crime, so that the forfeiture rule had no application). Cf Troja v Troja (1994) 33 NSWLR 269 at 281–2 per Kirby P (who, although dissenting, rejected the approach taken by Rolfe J on the grounds, first, that the rule is based on abhorrence of homicide, and not disapproval of greed, and second, for the practical problems in establishing proof of intention to claim the benefit; Mummery LJ in Dunbar v Plant [1997] 4 All ER 289 at 300–1 also stated that the Freedom from Hunger case approach should not be followed on the first ground). 205. Kemperle v Public Trustee (SC(NSW), Powell J, 20 November 1985, unreported) BC8500411; Bain v Morabito (SC(NSW), Powell J, 14 August 1992, unreported) BC9201674. 206. (1994) 33 NSWLR 269. 207. Troja v Troja (1994) 33 NSWLR 269 at 299. 208. Troja v Troja (1994) 33 NSWLR 269 at 294–5, 298. 209. Troja v Troja (1994) 33 NSWLR 269 at 284. 210. In the Matter of the Estate of Soukup (1997) 97 A Crim R 103; BC9705280, which disapproved Re Keitley [1992] 1 VR 583 (where, against the backdrop of domestic violence, Coldrey J did not apply the forfeiture rule to a wife who had killed her husband). 211. Public Trustee of Queensland v Public Trustee of Queensland [2015] 1 Qd R 601; [2014] QSC 47;

212. 213. 214. 215.

216.

217. 218. 219.

220. 221. 222. 223. 224. 225.

226. 227.

BC201402005 (where de Jersey CJ ruled that a person who assists the suicide of someone else ‘cannot act as that person’s executor, or take an interest in his or her estate’, and the court ‘has no discretion to modify the application of that rule’, it being ‘irrelevant that the offender may have been motivated to ease suffering or to have acted at the request of the deceased’: at [19]; see T Cockburn and B Hamilton, ‘Assisting a Suicide: Potential Succession Law Consequences’ (2013) 33 Qld Lawyer 67 for a discussion of this issue preceding this decision). See also Pike v Pike [2015] QSC 134; BC201504125 (forfeiture rule applied in the context of a conviction for the manslaughter of the killer’s mother). Re Estate of Luxton (2006) 96 SASR 218; [2006] SASC 371; BC200610328. [2016] VSCA 28; BC201601402. Edwards v State Trustees Ltd [2016] VSCA 28; BC201601402 at [48] per Whelan JA, with whom Kyrou JA concurred, at [190] per Santamaria JA. Edwards v State Trustees Ltd [2016] VSCA 28; BC201601402 at [66]. Cf at [149] per Santamaria JA (who on the question whether the holding in Troja that the forfeiture rule is, in truth, a ‘rule’ and not a matter of judicial discretion is plainly wrong, was not persuaded that Troja was plainly wrong). Edwards v State Trustees Ltd [2016] VSCA 28; BC201601402 at [84]. See also at [192] per Santamaria JA (who characterised the appellant’s conduct as ‘deliberate, intentional and unlawful’, noting that while there was evidence that she had been the victim of constant violence at the hands of her husband, ‘it was not suggested that her culpability was diminished’). Forfeiture Act 1995 (NSW). Forfeiture Act 1991 (ACT). Victorian Law Reform Commission, The Forfeiture Rule, September 2014 (recommending that Victoria introduce a Forfeiture Act that: (1) specifies the unlawful killings to which the rule applies; (2) excludes certain offences from its operation to overcome concerns about the harsh effects of the rule; and (3) gives the court a discretion, on application, to modify the effect of the rule where required by the justice of the case, ‘having regard to the offender’s moral culpability and responsibility for the unlawful killing and such other matters as appear to the Court to be material’; in determining the moral culpability of the offender, the Commission recommended that the Supreme Court should have regard to: (1) findings of fact by the sentencing judge; (2) findings by the Coroner; (3) victim impact statements presented at criminal proceedings for the offence; (4) submissions on interests of victims; (5) the mental state of the offender at the time of the offence; and (6) such other matters that in the court’s opinion appear to be material to the offender’s moral culpability: recommendation 7). See Tasmania Law Reform Institute, The Forfeiture Rule, Final Report No 6, December 2004. Pike v Pike [2015] QSC 134; BC201504125 at [25] per Atkinson J. See also A Hemming, ‘Killing the Goose and Keeping the Golden Nest Egg’ (2008) 8 QUTLJJ 342. Succession (Homicide) Act 2007 (NZ) (which was the upshot of the recommendation of the New Zealand Law Commission, Succession Law: Homicidal Heirs, Report No 38, 1997). See 7.68–7.70. Namely the constructive trust claim under Baumgartner v Baumgartner (1987) 164 CLR 137; BC8701827, as to which see Dal Pont, pp 1196–203. Troja v Troja (1994) 33 NSWLR 269 at 294, 298 per Mahoney JA, at 300 per Meagher JA; Edwards v State Trustees Ltd [2016] VSCA 28; BC201601402 at [86] per Whelan JA, with whom Kyrou JA concurred. Re Peacock [1957] Ch 310. Re Pollock [1941] Ch 219; Re Callaway [1956] Ch 559; Re Dellow’s Will Trusts [1964] 1 All ER 771; Re Giles (deceased) [1972] Ch 544.

228. As to the doctrine of lapse, see 7.13–7.22. 229. If the will is worded to indicate that, if the initial gift fails for any reason, the gift over is effective. Most wills, however, only provide for substitutional gifts in the event of the initial beneficiary predeceasing the testator, or at least not surviving him or her for a short period. 230. [1927] SASR 147. 231. Re Barrowcliff [1927] SASR 147 at 151. 232. See, for example, Re Callway [1956] Ch 599. 233. (SC(NSW), Waddell CJ in Eq, 15 February 1993, unreported) BC9302068 at 36 (aff’d Troja v Troja (1994) 33 NSWLR 269 but without specifically addressing this issue). 234. See, for instance, the criticisms in Re Stone [1989] 1 Qd R 351 at 352–3 per McPherson J; Ekert v Mereider (1993) 32 NSWLR 729 at 731–2 per Windeyer J; Public Trustee v Hayles (1993) 33 NSWLR 154 at 170; BC9303904 per Young J. 235. [1978] WAR 144. 236. See, for example, In the Estate of Robertson (deceased) (1963) 107 Sol Jo 318; Re Kyd [1992] SLT 1141; Jones v Midland Bank Trust Co Ltd [1998] 1 FLR 264. 237. See C J Rowland, ‘The Construction or Rectification of Wills to Take Account of Unforeseen Circumstances Affecting Their Operation’ (Pt I) (1993) 1 APLJ 87 at 99–110; K F Mackie, ‘The Forfeiture Rule: The Destination of Property Interest on Homicide’ (1997) 2 Newc LR 230. 238. (1711) Prec Ch 316; 24 ER 149. 239. See, for example, Re Tredwell [1891] 2 Ch 640 at 650 per Bowen LJ; Re Fox’s Estate [1937] 4 All ER 664 at 666 per Greene MR, at 669 per Romer LJ; Union Trustee Co of Australia Ltd v Church of England Property Trust, Diocese of Sydney (1946) 46 SR (NSW) 298 at 306 per Nicholas CJ. 240. Re Jolley (deceased) (1984) 36 SASR 204 at 206 per Jacobs J. 241. [1980] Qd R 610. 242. Re Keid [1980] Qd R 610 at 614. 243. [1990] 3 NZLR 193. 244. (1993) 32 NSWLR 729. 245. (1993) 33 NSWLR 154; BC9303904. 246. Re Lentjes [1990] 3 NZLR 193 at 197. Cf C J Rowland, ‘The Construction or Rectification of Wills to Take Account of Unforeseen Circumstances Affecting Their Operation’ (Pt I) (1993) 1 APLJ 87 at 106–10 (who cogently argues that this is an unwarranted and unnecessary restrictive interpretation of the Jones v Westcomb rule). 247. Ekert v Merieder (1993) 32 NSWLR 729 at 732–3. 248. (1993) 33 NSWLR 154; BC9303904. 249. Public Trustee v Hayles (1993) 33 NSWLR 154 at 171; BC9303904. 250. Public Trustee v Hayles (1993) 33 NSWLR 154 at 164; BC9303904. 251. Young J held, however, that as no evidence was put forward otherwise than by the Public Trustee of the relationships and intentions which may affect the result on the constructive trust, D should be given an opportunity to re-open the case, and so directed a stay of the formal order. As D did not take up that opportunity, formal orders were entered. 252. In Egan v O’Brien [2006] NSWSC 1398; BC200610480, in a brief judgment, Young CJ in Eq reaffirmed the position he originally took in Pubic Trustee v Hayles, and in Stevens v Baxter [2009] VSC 257; BC200906743 at [26] Forrest J simply assumed that a constructive trust could be imposed. 253. Re Houghton [1915] 2 Ch 173 at 178–9 per Joyce J; Re Tucker (1920) 21 SR (NSW) 175 at 181 per Harvey J (‘the whole doctrine seems to me to be in a very unsatisfactory condition; it is an

254.

255. 256.

257. 258. 259. 260. 261. 262. 263. 264.

265. 266. 267. 268. 269. 270. 271. 272.

extraordinary instance of Judge-made law invoking the doctrine of public policy in order to prevent what is felt in a particular case to be an outrage’). See, for example, Re Tucker (1920) 21 SR (NSW) 175 (where the husband killed his wife, but was excluded from taking on intestacy, the wife’s property instead passing entirely to the deceased’s son); Re Sangal (deceased) [1921] VLR 355 (similar factual situation and outcome as Re Tucker); Public Trustee v Fraser (1987) 9 NSWLR 433; BC8701350 (where the killer was regarded as notionally not being in existence, Kearney J remarking that the killer was to be treated as being ‘no longer a member of the class constituted by the next of kin entitled to take on intestacy’: at 444); In the Matter of the Estate of Soupkop (1997) 97 A Crim R 103; BC9705280. Similar developments have occurred in the United Kingdom: see, for example, Re Sigworth [1935] Ch 89. (1993) 33 NSWLR 154; BC9303904, as to which see 7.62. Succession Act 2006 (NSW) s 139(b); Intestacy Act 2010 (Tas) s 40(b). The same has been recommended in England, following the decision of the English Court of Appeal in Re DWS (deceased) [2001] Ch 568 (where the court held that not just the killer, but also his children, were excluded from inheriting): Law Commission, The Forfeiture Rule and the Law of Succession, Law Com No 295, July 2005. See 7.22. See J Tarrant, ‘Unlawful Killing of a Joint Tenant’ (2008) 15 APLJ 224. [1927] SASR 147. As held by Hanger J in Kemp v Public Curator of Queensland [1969] Qd R 145 at 149. [1962] NSWR 889. (1969) 70 SR (NSW) 407. Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407 at 411. See, for example, Public Trustee v Evans (1985) 2 NSWLR 188 at 199 per Young J; Re Stone [1989] 1 Qd R 351 (where a trustee for sale of the jointly owned property was accordingly ordered to be appointed, in the meantime the killer holding the legal estate upon trust, to the extent to which his interest was enlarged by the killing, for the persons entitled under the will of the victim); Ekert v Mereider (1993) 32 NSWLR 729 at 731 per Windeyer J; Josifovski v Velevski [2013] NSWSC 1103; BC201311904 at [30]–[33] per Kunc J. See, for example, Schobelt v Barber (1966) 60 DLR (2d) 519; Re Pechar [1969] NZLR 574; Re K (deceased) [1985] Ch 85 at 100 per Vinelott J. Forfeiture Act 1991 (ACT) s 4; Forfeiture Act 1995 (NSW) s 4(2). See Forfeiture Act 1991 (ACT) s 3(5); Forfeiture Act 1995 (NSW) s 7 (unless the court extends time: see, for example, Batey v Potts (2004) 61 NSWLR 274; [2004] NSWSC 606; BC200404562). The applicant need not be the killer: Forfeiture Act 1991 (ACT) s 3(1) (‘application may be made’); Forfeiture Act 1995 (NSW) s 5(1) (application by ‘any interested person’). Forfeiture Act 1991 (ACT) s 3(2); Forfeiture Act 1995 (NSW) s 5(2). Forfeiture Act 1991 (ACT) s 3(2); Forfeiture Act 1995 (NSW) s 5(3). Dunbar v Plant [1997] 4 All ER 289 at 202–3 per Mummery LJ. See, for example, Straede v Eastwood [2003] NSWSC 280; BC200301528 (where the applicant pleaded guilty to causing his wife’s death by dangerous driving, and succeeded in securing a forfeiture modification order notwithstanding having lived in a ménage à trois for 20 years prior to his wife’s death; Palmer J remarked that ‘in order to qualify as conduct to which the Court must have regard under [Forfeiture Act 1995 (NSW)] s 5(3)(a) the conduct of the offender must have some bearing on the very fact which brings into operation the forfeiture rule, that is, the unlawful killing of the deceased’ (at [33]), but that the ‘immoral’ conduct of the applicant in no way related to

the deceased’s death). 273. Forfeiture Act 1991 (ACT) s 3(3), (4); Forfeiture Act 1995 (NSW) s 6. 274. As to the application of the forfeiture rule vis-à-vis family provision applications, see 19.23. 275. Forfeiture Act 1995 (NSW) s 8 (note that s 8(1)(c) vests the court with a general discretion to revoke or vary in other cases ‘if the Court considers it just in all the circumstances to give leave for such an application to be made’). 276. By the Confiscation of Proceeds of Crime Amendment Act 2005 (NSW), with effect on 28 October 2005. 277. Forfeiture Act 1995 (NSW) s 11(1). 278. See, for example, Re Estate of Fitter (deceased) [2005] NSWSC 1188; BC200510083 (where the deceased was killed by her husband and two children, who were found not guilty of murder by reason of mental illness, the deceased’s sister successfully applied for an order that the forfeiture rule applied in these circumstances; what influenced Lloyd AJ in so ruling was the conduct of the husband since his detention, including his absence of any expression of contrition or remorse knowing what he had done, and the conduct of the deceased, particularly the absence of blameworthy conduct on her part); Hill v Hill (2013) 11 ASTLR 121; [2013] NSWSC 524; BC20130 (where although the respondent was found not guilty of the murder of his de facto partner by reason of mental illness, Lindsay J found that, against a backdrop of a long history of abusive behaviour towards the victim, justice required that the forfeiture rule be applied as if the respondent had been convicted of murder); Re Estate of Novosadek [2016] NSWSC 554; BC201603206 (where although the defendant had been found not guilty of murder by reason of insanity, Young AJ applied the forfeiture rule, reasoning that ‘the abhorrence of the killing of three family members … in an event the occurrence of which was contributed to by voluntary use of cannabis, operates strongly against the person still being able to collect a financial benefit from his victim’s estate’: at [66]). 279. Forfeiture Act 1995 (NSW) s 11(2), (3). 280. See, for example, Re K (deceased) [1985] Ch 85; Re Paterson (deceased) [1986] SLT 121. 281. See, for example, Re H (deceased) [1990] 1 FLR 441; Re Gilchrist (deceased) [1990] SLT 494; Re S (deceased) [1996] 1 WLR 235. 282. See, for example, Dunbar v Plant [1998] Ch 412. Cf Permanent Trustee Co Ltd v Freedom From Hunger Campaign (1991) 25 NSWLR 140. See further the discussion in K F Mackie, ‘The Troja Case: Criminal Law Succession and Law Reform’ (1995) 5 Canberra LR 142. 283. (SC(NSW), Hodgson CJ in Eq, 14 November 1997, unreported) BC9707619. 284. (1998) 100 A Crim R 565; BC9802117. 285. [2002] NSWSC 628; BC200204000. 286. Russell v White (1895) 16 LR (NSW) Eq 158 at 164–5 per Owen CJ in Eq; Royal North Shore Hospital v Crichton-Smith (1938) 60 CLR 798; at 804 per Rich J, at 811–12 per Dixon J; BC3800006; Lambert v Waters [1954] QSR 212 at 227 per Philp J. The doctrine of satisfaction is said to be based on two maxims, namely ‘a debtor is not presumed to make a gift’ (Johnstone v Haviland [1896] AC 95 at 103 per Lord Herschell) and ‘a man ought to be just before he is bountiful’ (Fowler v Fowler (1735) 3 P Wms 353 at 354; 24 ER 1098 at 1098 per Talbot LC). Cf Wills, Estates and Succession Act 2009 (BC) s 53(3) (which abolishes the presumption of satisfaction of a debt; this ensued upon a recommendation of the British Columbia Law Institute (see Wills, Estates and Succession: A Modern Legal Framework, BCLI Report No 45, June 2006, p 44), which expressed concern that the presumption creates uncertainty in the administration of estates). 287. Royal North Shore Hospital v Crichton-Smith (1938) 60 CLR 798 at 806; BC3800006 per Rich J. See also at 815–16 per Dixon J.

288. See generally Will of Weiss (deceased) (1946) 48 WALR 37 at 40 per Dwyer CJ; Lambert v Waters [1954] QSR 212 at 221 per Macrossan CJ, at 229–31 per Philp J. 289. Re Horlock [1895] 1 Ch 516 at 518, 522 per Stirling J; Webb v Webb (1900) 21 LR (NSW) Eq 245 at 251 per A H Simpson CJ; Re Rattenberry [1906] 1 Ch 667 at 670 per Swinfen Eady J; Royal North Shore Hospital v Crichton-Smith (1938) 60 CLR 798; at 804 per Rich J, at 808 per Starke J, at 812–13 per Dixon J, at 818–19 per McTiernan J; BC3800006; Re Manners [1949] Ch 613 at 616 per Evershed MR. 290. Royal North Shore Hospital v Crichton-Smith (1938) 60 CLR 798 at 814; BC3800006 per Dixon J. 291. See Royal North Shore Hospital v Crichton-Smith (1938) 60 CLR 798 at 809; BC3800006 per Starke J. 292. Lambert v Waters [1954] QSR 212 at 227 per Philp J (emphasis in original). See also Hurst v Beach (1820) 5 Madd 351 at 358–60; 56 ER 929 at 932–3 per Sir John Leach MR. 293. (1938) 60 CLR 798; BC3800006. 294. Royal North Shore Hospital v Crichton-Smith (1938) 60 CLR 798 at 805–6 per Rich J, at 809–10 per Starke J, at 816 per Dixon J, at 822 per McTiernan J; BC3800006. 295. [1954] QSR 212. 296. Lambert v Waters [1954] QSR 212 at 228 (emphasis in original). 297. Lambert v Waters [1954] QSR 212 at 228. 298. (1900) 21 LR (NSW) Eq 245. 299. Webb v Webb (1900) 21 LR (NSW) Eq 245 at 251. See also Royal North Shore Hospital v Crichton-Smith (1938) 60 CLR 798 at 808; BC3800006 per Starke J. 300. (1744) 3 Atk 96 at 97; 26 ER 858 at 859. See also Royal North Shore Hospital v Crichton-Smith (1938) 60 CLR 798 at 808; BC3800006 per Starke J. 301. (1781) 1 Bro CC 129; 28 ER 1031. 302. This represents, therefore, an exception to the basic rule that legatees receive interest only after the expiry of the executor’s year: see 14.32, 14.33. The exception is grounded in the fact that the legacy is representative of an existing debt, not an entitlement to a future distribution. 303. See generally Re Rattenberry [1906] 1 Ch 667 at 671–2 per Swinfen Eady J. Cf Re Horlock [1895] 1 Ch 516. 304. Re Huish (1889) 43 Ch D 260 at 264 per Kay J. 305. Re Manners [1949] 1 Ch 613 at 618 per Evershed MR; Lambert v Waters [1954] QSR 212 at 229 per Philp J. 306. Thynne v Earl of Glengall (1848) 2 HLC 131 at 154; 9 ER 1042 at 1050 per the Lord Chancellor; Kirkpatrick v Bedford (1878) 4 App Cas 96 at 103 per Lord Cairns LC, at 109–10 per Lord O’Hagan. 307. (1938) 60 CLR 798; BC3800006, discussed at 7.74. 308. Taylor v Taylor (1875) LR 20 Eq 155 at 157 per Jessel MR. See N Crago, ‘Equitable Ademption Within the Family’ (1987) 17 UWALR 272 at 282–8. 309. [1906] 2 Ch 222 at 226. See also Chichester v Coventry (1867) LR 2 HL 71 at 83 per Lord Chelmsford LC, at 98 per Lord Colonsay; Russell v White (1895) 16 LR (NSW) Eq 158 at 164–5 per Owen CJ in Eq. 310. Weall v Rice (1831) 2 Russ & My 251; 39 ER 390; Chichester v Coventry (1867) LR 2 HL 71 at 83 per Lord Chelmsford LC, at 98 per Lord Colonsay; Russell v White (1895) 16 LR (NSW) Eq 158 at 168– 9 per Owen CJ in Eq. In British Columbia, following a recommendation of the British Columbia Law Institute (see Wills, Estates and Succession: A Modern Legal Framework, BCLI Report No 45, June 2006, pp 43–4), the presumption against double portions is statutorily abolished: Wills, Estates and Succession Act 2009 (BC) s 53(1) (‘The presumption of law that a gift by a will-maker made during his or her lifetime to a child of the will-maker or to a person to whom the will-maker stands in place

311. 312. 313. 314. 315. 316.

317. 318. 319.

320.

321. 322. 323. 324. 325. 326. 327.

328. 329.

of a parent is an advancement of a portion that is intended to revoke a gift in the will-maker’s will in favour of the child or person is abrogated and the gift in the will takes effect according to its terms’). The recommendation was made against the backdrop of the presumption no longer conforming with prevailing attitudes to large transfers of wealth by parents to children during the parents’ lifetimes. Chichester v Coventry (1867) LR 2 HL 71 at 92, 95 per Lord Romilly. Thynne v Earl of Glengall (1848) 2 HLC 131 at 153; 9 ER 1042 at 1050. See also Re Horrocks (deceased) [1944] NZLR 314 at 325 per Fair J. (1895) 16 LR (NSW) Eq 158. Russell v White (1895) 16 LR (NSW) Eq 158 at 169. Re Horrocks (deceased) [1944] NZLR 314 at 327 per Fair J. See also Re Wells (1930) 30 SR (NSW) 150 at 154–7 per Long Innes J; Re Edwards (deceased) [1958] 1 Ch 168 at 178 per Jenkins LJ. Pym v Lockyer (1841) 5 My & Cr 29 at 34–5; 41 ER 283 at 285 per Cottenham LC; Lake v Quinton [1973] 1 NSWLR 111 at 140 per Hutley JA. Although this presumption has been the subject of criticism (see, for example, Montagu v Earl of Sandwich (1886) 32 Ch D 525 at 541 per Bowen LJ; Elders Trustee & Executor Co Ltd v Eastoe [1963] WAR 36 at 38 per Hale J), it remains embedded in Australian law. In British Columbia, following a recommendation of the British Columbia Law Institute (see Wills, Estates and Succession: A Modern Legal Framework, BCLI Report No 45, June 2006, p 45), the presumption was statutorily abolished: Wills, Estates and Succession Act 2009 (BC) s 53(2). Re Cameron (deceased) [1999] Ch 386 at 409–10 per Lindsay J (emphasis in original). Chichester v Coventry (1867) LR 2 HL 71 at 87–8 per Lord Cranworth, at 91 per Lord Romilly. See, for example, Re Cameron (deceased) [1999] Ch 386, discussed at 7.84. Re Everett [1917] SALR 52 at 65 per Murray CJ. See also Re Pollock (1885) 28 Ch D 552 at 556 per Earl of Selborne LC; Re Furness [1901] 2 Ch 346 at 348–9 per Joyce J; Re Horrocks (deceased) [1944] NZLR 314 at 324 per Fair J; Re Sparrow (deceased) [1967] VR 739 at 741 per Little J. Though historically limited to gifts or advances made by fathers or other male persons, the modern understanding that mothers as much as fathers have an obligation to provide for their children dictates that the presumption of ademption should apply to such gifts or advances from mothers: Re Cameron (deceased) [1999] Ch 386 at 405 per Lindsay J. See 7.84–7.88. See N Crago, ‘Equitable Ademption Within the Family’ (1987) 17 UWALR 272 at 288–92. Moggridge v Thackwell (1792) 1 Ves 464 at 473; 30 ER 440 at 444 per Lord Thurlow LC. See 7.85, 7.86. Ravenscroft v Jones (1863) 32 Beav 669; 55 ER 263; Watson v Watson (1864) 33 Beav 574; 55 ER 491. Re Vaux [1939] Ch 465 at 481 per Lord Greene MR; Re Cameron (deceased) [1999] Ch 386 at 404 per Lindsay J. Re Lacon [1891] 2 Ch 482 at 497 per Lindley LJ, at 499 per Bowen LJ; Re Simpson (1906) 7 SR (NSW) 78 at 81–2 per Street J; Seaborn v Marsden (1926) 26 SR (NSW) 485 at 495–7 per Long Innes J; Re Wells (1930) 30 SR (NSW) 150 at 154–7 per Long Innes J; Re Vaux [1939] Ch 465 at 481 per Lord Greene MR; Re Mills (deceased) [1952] SASR 274 at 277 per Ligertwood J; Elders Trustee & Executor Co Ltd v Eastoe [1963] WAR 36 at 37–9 per Hale J; Re Sparrow (deceased) [1967] VR 739 at 741 per Little J; Lake v Quinton [1973] 1 NSWLR 111 at 122–3 per Jacobs P; Re Cameron (deceased) [1999] Ch 386 at 407 per Lindsay J. [1999] Ch 386. Re Cameron (deceased) [1999] Ch 386 at 415.

330. Re Mills (deceased) [1952] SASR 274 at 278 per Ligertwood J; Lake v Quinton [1973] 1 NSWLR 111 at 123 per Jacobs P. 331. Chichester v Coventry (1867) LR 2 HL 71 at 83 per Lord Chelmsford LC. 332. Re Cameron (deceased) [1999] Ch 386 at 411 per Lindsay J (emphasis supplied). 333. [1973] 1 NSWLR 111. 334. Lake v Quinton [1973] 1 NSWLR 111 at 123 per Jacobs P, at 140–2 per Hutley JA. In so doing, the court rejected the traditional approach that real estate and personalty could not be ejusdem generis for the purposes of ademption (as propounded in Bellasis v Uthwatt (1737) 1 Atk 426; 26 ER 271; Re Chirnside (1903) 29 VLR 4 at 14 per A’Beckett J) in favour of the American approach, under which a gift of real estate can operate as an ademption of a legacy. Cf Public Trustee v Regan (1933) 33 SR (NSW) 361 at 368 per Long Innes J (who doubted the rule that a conveyance of real estate could not be a portion). 335. Lake v Quinton [1973] 1 NSWLR 111 at 121, with whom Street CJ agreed. See also at 142–3 per Hutley JA. 336. Lake v Quinton [1973] 1 NSWLR 111 at 122. See also at 143 per Hutley JA; Re Mills (deceased) [1952] SASR 274 at 279 per Ligertwood J. 337. Watson v Watson (1864) 33 Beav 574; 55 ER 491; Re Mills (deceased) [1952] SASR 271 at 280 per Ligertwood J; Lake v Quinton [1973] 1 NSWLR 111 at 122–3 per Jacobs P, at 143–4 per Hutley JA. 338. [1973] 1 NSWLR 111 at 124 per Jacobs P. See also at 134–5 per Street CJ in Eq. 339. See, for example, Re George’s Will Trusts [1949] Ch 154. 340. (1885) 28 Ch D 552 at 556. See also Pankhurst v Howell (1870) LR 6 Ch App 136 at 138 per James LJ; Re Furness [1901] 2 Ch 346 at 349 per Joyce J; Re Everett [1917] SALR 52 at 65 per Murray CJ; Re Horrocks (deceased) [1944] NZLR 314 at 323–4 per Fair J; Re Sparrow (deceased) [1967] VR 739 at 741– 2 per Little J. 341. (1888) 14 VLR 669. 342. Salway v Snowden (1888) 14 VLR 669 at 672. 343. Salway v Snowden (1888) 14 VLR 669 at 672–3. 344. [1944] NZLR 314. See also Re Sparrow (deceased) [1967] VR 730. 345. Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 655; BC7400046 per Mason J. As to the common law doctrine of election see J W Carter, Contract Law in Australia, 6th ed, LexisNexis Butterworths, Australia, 2013, pp 727–33. 346. Birmingham v Kirwan (1805) 2 Sch & Lef 444 at 449 per the Lord Chancellor. See N Crago, ‘Mistakes in Wills and Election in Equity’ (1990) 106 LQR 487; E B Histed, ‘Election in Equity: The Myth of Mistake’ (1998) 114 LQR 621. 347. Re Lord Chesham (1885) 31 Ch D 466 at 473 per Chitty J; O’Connor v S P Bray Ltd (1936) 36 SR (NSW) 248 at 263 per Jordan CJ. 348. Codrington v Codrington (1875) LR 7 HL 854 at 861–2 per Lord Cairns LC. See also at 866 per Lord Chelmsford, at 866–7 per Lord Hatherley, at 867 per Lord O’Hagan; Re Lord Chesham (1885) 31 Ch D 466 at 473 per Chitty J; Douglas-Menzies v Umphelby [1908] AC 224 at 232 per Lord Robertson (PC); Gregg v Perpetual Trustee Co (1918) 18 SR (NSW) 252 at 257–8 per Harvey J. 349. McKeown v Byron (1903) 4 SR (NSW) 13 at 15 per Simpson CJ in Eq. 350. Padbury v Clark (1850) 2 Mac & G 298 at 308; 42 ER 115 at 119 per Lord Cottenham LC (‘[the person] electing to take against the will is bound to make good to the disappointed party the value of the property intended for [that party]’); Public Trustee v Beckman (1914) 15 SR (NSW) 6 at 9 per Harvey J. 351. Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458; [1999] FCA 152; BC9900551 at [66] per

R D Nicholson J. 352. [1978] Ch 145 at 153 (emphasis supplied). See also at 161–2 per Eveleigh LJ; Rogers v Jones (1877) 3 Ch D 688 at 689 per Jessel MR; O’Connor v S P Bray Ltd (1936) 36 SR (NSW) 248 at 263 per Jordan CJ; Re Edwards (deceased) [1958] Ch 168 at 172–5 per Jenkins LJ; Re Gillespie [1969] QWN 32. 353. O’Connor v S P Bray Ltd (1936) 36 SR (NSW) 248 at 263 per Jordan CJ. 354. Re Edwards (deceased) [1958] Ch 168 at 175 per Jenkins LJ, at 179 per Romer LJ; Re Mengel’s Will Trusts [1962] Ch 791 at 796–8 per Buckley J; Granot v Hersen (1999) 173 DLR (4th) 227 at 231, 241 per Doherty JA (CA(Ont)). 355. Padbury v Clark (1850) 2 Mac & G 298 at 306; 42 ER 115 at 118 per Lord Cottenham LC (‘if a party being bound to elect between two properties, not being called upon so to elect, continues in the receipt of the rents and profits of both, such receipt, affording no proof of preference, cannot be an election to take the one and reject the other’; emphasis supplied); Spread v Morgan (1865) 11 HLC 588; 11 ER 1461 (see at 602; 1467 per Lord Westbury, at 612–13; 1471 per Lord Cranworth, at 615; 1472 per Lord Chelmsford). 356. Kidney v Coussmaker (1806) 12 Ves 136 at 153; 33 ER 53 at 59 per Sir William Grant MR (involving a misapprehension as to the value of the relevant property); Dillon v Parker (1818) 1 Swans 359 at 381; 36 ER 422 at 430 per Sir Thomas Plumer MR. 357. Re Lord Chesham (1885) 31 Ch D 466 at 476 per Chitty J. 358. There are indications in early cases that the testator must have intended that the legatee elect: Rancliffe v Parkyns (1818) 6 Dow 149 at 179; 3 ER 1428 at 1438; Dummer v Pitcher (1833) 2 My & K 262 at 274; 39 ER 944 at 949 per Lord Brougham; Minchin v Gabbett [1896] 1 IR 1 at 12 per Porter MR; Re Mawson [1939] 4 DLR 801 at 802 per Kelly J (SC(Ont)). However, as noted in the text, in many cases this approach necessitates something of a fiction, namely the attribution of an intention to the testator that he or she simply did not have because her or his action was perpetuated upon a mistaken understanding of property to which he or she had title: Cooper v Cooper (1874) LR 7 HL 53 at 70 per Lord Hatherley, at 78 per Lord Moncreiff. 359. Re Mengel’s Will Trusts [1962] Ch 791 at 796–7 per Buckley J. 360. See, for example, Scarfe v Matthews [2012] WTLR 1579 at [34]–[37] per Mr N Strauss. 361. Granot v Hersen (1999) 173 DLR (4th) 227 at 238, 241 per Doherty JA (CA(Ont)). 362. Re Vardon’s Trusts (1885) 31 Ch D 275 at 280 per Fry LJ (CA); Public Trustee v Beckman (1914) 15 SR (NSW) 6 at 8–9 per Harvey J. 363. Re Gordon’s Will Trusts [1978] Ch 145 at 160 per Buckley LJ. 364. Re Hargrove [1915] 1 Ch 398 at 406 per Astbury J. 365. Public Trustee v Beckman (1914) 15 SR (NSW) 6 at 9 per Harvey J. 366. Eckford v Eckford (1924) 25 SR (NSW) 78 at 92 per Maughan AJ; Granot v Hersen (1999) 173 DLR (4th) 227 at 241 per Doherty JA (CA(Ont)). 367. Re Harris [1909] 2 Ch 206 at 209 per Parker J; Granot v Hersen (1999) 173 DLR (4th) 227 at 237 per Doherty JA (CA(Ont)). 368. Miller v Thurgood (1864) 33 Beav 496 at 499; 55 ER 461 at 462 per Romilly MR; Granot v Hersen (1999) 173 DLR (4th) 227 at 241 per Doherty JA (CA(Ont)). 369. (1999) 173 DLR (4th) 227. 370. Granot v Hersen (1999) 173 DLR (4th) 227 at 238, 241–2 per Doherty JA. 371. See generally Re Gordon’s Will Trusts [1978] Ch 145 at 153–4 per Buckley LJ.

[page 214]

CHAPTER 8

Construction of Wills Concept of Construction Distinction between ‘probate’ and ‘construction’ ‘Rules’ of construction

8.1 8.1 8.3

General Principles of Construction Targeting the expressed intention of the testator The usual or ordinary meaning rule Secondary meanings The dictionary principle Ordinary meaning does not make sense Words with more than one usual meaning Technical words and phrases Custom Omissions Ignoring words Changing and transposing words Punctuation Jurisdiction to omit scandalous, offensive or defamatory words

8.4 8.4 8.6 8.8 8.8 8.10 8.12 8.14 8.15 8.16 8.18 8.19 8.21 8.22

Subsidiary Principles of Construction Principles informed by attempt to uphold the will The ‘golden rule’ — avoidance of intestacy Ut res magis valeat quam pereat Falsa demonstratio non nocet, cum de corpore constat Ejusdem generis Ambiguous words do not control a clear gift Inconsistency and conflict The ‘rule of despair’

8.23 8.24 8.24 8.25 8.26 8.29 8.31 8.33 8.33

The rule in Lassence v Tierney Admissibility of Extrinsic Evidence in Construing a Will Admissibility of extrinsic evidence at common law The ‘armchair principle’ Limitations on the ‘armchair principle’ Equivocations Statutory modification Consequences of inability to ascertain meaning

8.35 8.36 8.37 8.39 8.40 8.42 8.44 8.46 [page 215]

Construction of Gifts to Persons Donee to be ascertained at date of will Gifts to persons in a specified relationship to the testator Construction of gifts to children Construction of gifts to spouses Construction of gifts to transgender persons Construction of ‘class gifts’ Class closing rules Immediate gift without qualification Mediate gift without qualification Immediate gift with qualification Mediate gift with qualification

8.47 8.48 8.50 8.51 8.57 8.59 8.60 8.61 8.63 8.64 8.65 8.66

Construction of Gifts of Property Will speaks from death as to property Specific statutory rules relating to gifts of property Gifts of land includes leasehold Devise without words of limitation Devise of estate tail Dispositions include both real estate and personal estate Powers of appointment

8.67 8.67 8.71 8.72 8.73 8.74 8.75 8.76

Concept of Construction Distinction between ‘probate’ and ‘construction’ 8.1 To resolve uncertainty and ambiguity in testamentary wording, the law resorts to a process of construction, that is, to construe the words used in their context. Importantly, the construction stage ordinarily follows the grant of probate. When a court is asked to grant probate to a testamentary document, it functions, it is said, as a ‘court of probate’. The relevant function here is to determine the validity of a will. Matters such as whether the document produced for probate is a will, whether the testator had capacity to make the will, whether the document is in the proper form, and whether it is the last will of the testator, are all properly determined on an application for probate.1 They are accordingly functions of a court of probate. Generally speaking, it is only once probate has been granted that matters of uncertainty and ambiguity in the testamentary wording must be addressed, in order to determine the proper application of the estate. At this stage the court acts as a ‘court of construction’, and assumes that all documents admitted to probate are valid testamentary documents.2 The difference between the probate and construction phases is largely historical. The jurisdiction ecclesiastical courts once had over both probate and construction, in the passage of time, became limited to the probate function, the Court of Chancery becoming the accepted court of construction. This generated different judicial attitudes, many of which remain. In particular, admissibility of extrinsic evidence of a testator’s intention is severely limited in a court of construction.3 [page 216] 8.2 However, the distinction between probate and construction is not always precise. It is sometimes necessary for a court of probate to construe instruments, for instance to determine who should be granted probate or administration of the will,4 or determine whether a later instrument impliedly revokes an earlier instrument and so renders it inadmissible to probate.5 In the

latter event, the distinction persists in that the determination of a probate court on construction, depending on the form of order, does not bind a court of construction should the latter be called on to construe a document admitted to probate.6

‘Rules’ of construction 8.3 There have developed, over some centuries, what are named ‘rules of construction’.7 This term is inaccurate as the so-called ‘rules’ are in effect only ‘principles’ to assist a court of construction in approaching its task. The language of ‘rules’ should not, to this end, be understood as referring to rigid rules of law binding on the court, and incapable of yielding to the testator’s (contrary) intention. The nature of the relevant ‘rules’ was well expressed by Lord Romer in Perrin v Morgan:8 … I do not … intend to suggest that well-settled rules of construction are to be disregarded. On the contrary, I think that they should be strictly observed, but they ought to be applied in a reasonable way. It is, no doubt, of great importance to lawyers and others engaged in the preparation of wills that they should have the certainty of knowing that certain well-known words and phrases will receive from the court the meaning that the court has for generations past attributed to them. Much confusion and uncertainty would be caused if this were not so. The rules of construction, in other words, should be regarded as a dictionary by which all parties, including the courts, are bound, but the court should not have recourse to this dictionary to construe a word or a phrase until it has ascertained from an examination of the language of the whole will, when read in the light of the circumstances, whether or not the testator has indicated his intention of using the words or the phrase in other than its dictionary meaning — whether or not, in other words, to use another familiar expression, the testator has been his own dictionary.

His Lordship uttered these remarks, ‘however elementary and obvious they may seem to be’, to counter the tendency in some of the case law to pay greater attention to the rules of construction than to the language of the testator. The foregoing explains why this chapter broadly refers to the ‘principles’ of construction, which form its subject matter. It commences with ‘general’ principles,9 before moving to ‘subsidiary’ principles.10 It then addresses the admissibility of extrinsic evidence in construing a will,11 before concluding with principles that apply to construing gifts to persons12 and gifts of property.13 [page 217]

General Principles of Construction Targeting the expressed intention of the testator 8.4 The fundamental rule in construing the language of a will is to give the words used the meaning that, having regard to the will construed as a whole, the testator intended. The question is not what the testator meant to do when making the will, but what the written words used mean in their context. In other words, the inquiry is not into the ‘subjective’ intention of the testator, but rather his or her intention ‘expressed’ by the terms of the will. Again, in the words of Lord Romer in Perrin v Morgan:14 I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made.

The correct approach to construing wills thus aligns with that to construing contracts and trusts.15 It has been judicially observed, to this end, that ‘[w]hether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context’.16 That a will (and many trusts) are unilateral whereas contracts are the product of agreement, rather than justifying a different approach to construction, ‘is merely one of the contextual circumstances … to be borne in mind when interpreting the document concerned’.17 As every will (except privileged wills)18 must be in writing, however, its meaning must be discovered from that writing itself. Only in limited circumstances may the court admit extrinsic evidence.19 To focus the inquiry on what the testator meant to do at the time the will was made (essentially an inquiry into ‘subjective’ intention) would undermine the requirement that a will be in writing. Accordingly, a court, in construing a will, is not permitted to remake a will. That by rewriting, a more rational or logical will may result is by the way, and falls outside the court’s function, which is to give effect to the disposition actually made in the will.20 Nor is it permissible for a court to determine the testator’s intention by guesswork;21 that intention must be ascertained from the written words and the surrounding circumstances where admissible.22

8.5 As foreshadowed above, the testator’s intentions are to be ascertained from the entirety of the will, not simply by targeting that part of the will where there is doubt as to meaning. As explained by Isaacs J in Fell v Fell:23 The instrument … must receive a construction according to the plain meaning of the words and sentences therein contained. But … you must look at the whole instrument, and, inasmuch as

[page 218] there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it.

By construing the entire will, other provisions may throw light on the part that is uncertain or ambiguous. The court inquires into the general scheme of the will, and construes the will to give effect to that scheme.24 It may be possible thereby to resolve ambiguity in a word or phrase, or to rebut the presumption (discussed immediately below) in favour of the ordinary meaning of the words used.25

The usual or ordinary meaning rule 8.6 The basic principle is that a word or a phrase in a will is given its usual or ordinary grammatical meaning.26 This principle is sometimes called the ‘literal rule’, and the ordinary meaning sometimes referred to as the ‘primary’, ‘strict’, ‘literal’ or ‘natural’ meaning.27 Whatever the terminology employed, its upshot is clear: a word or phrase used is to be given its ordinary meaning, unless there are indications that either the testator used it in a different sense, or the ordinary meaning makes no sense in the light of the surrounding circumstances whereas secondary meanings do make sense.28 The ordinary meaning prevails even if the ultimate result appears eccentric or capricious. In the words of Buckley J in Re James’ Will Trusts:29 The mere fact that, so construed, the will might in certain possible, or even probable, circumstances produce results that seem fanciful or even harsh is not a sufficient ground for adopting another interpretation; for, although this fact may raise doubts whether this construction fulfils the testator’s intention, doubts are not enough …

After all, ‘[m]any a testamentary provision may seem to the world arbitrary, capricious, and eccentric, for which the testator, if he could be heard, might be able to answer most satisfactorily’.30 In any event, the core notion of freedom of testation must necessarily allow a testator to indulge in idiosyncrasy in testamentary disposition,31 except to the extent that the idiosyncrasy produces irremediable uncertainty — ‘the point may be reached at which apparent caprice does become a warning signal that something may have gone awry with the testator’s true expression of his intention’32 — or is challenged for failing to fulfil his or her moral obligation to maintain under family provision legislation.33 8.7 A corollary of the foregoing is a subsidiary principle: if the meaning of a word or phrase has changed over the passage of time, its ordinary meaning is to be ascertained at the time the will is made.34 [page 219]

Secondary meanings The dictionary principle 8.8 The usual or ordinary meaning rule may be displaced, and a secondary meaning given to a word or phrase, if, in construing the entire will, it appears that the testator used that word or phrase in a different sense from its usual meaning. The testator may expressly supply his or her own ‘dictionary’ in the will itself; a definition clause may clearly articulate that certain words or phrases are to be given a particular meaning.35 As a court of construction aims to give effect to the testator’s expressed intention, effect must be given to the meaning thus expressed. Indeed, it is open to a testator, it is said, to make ‘black’ mean ‘white’ by way of a dictionary in the will.36 8.9 More commonly, though, there will be no express definition clause. It may nonetheless be patently clear, on a contextual reading, that the words (or phrases) are used in a sense outside their usual or ordinary sense. Again, effect must be given to the particular sense used by the testator. Many of the cases have involved descriptions of persons that are clear on the ordinary meaning

but have been displaced by a secondary meaning, particularly the description of children37 or other ‘relations’.38

Ordinary meaning does not make sense 8.10 If, in the context of the will as a whole, and in the light of the surrounding circumstances, it appears that the ordinary meaning of a word or phrase does not make sense, but a secondary meaning would make sense, the court will adopt the latter meaning. As phrased by Lord Denning MR in Re Allsop (deceased):39 If you find that a literal interpretation gives rise to a capricious result which you are satisfied the testator can never have intended, then you should reject that interpretation and seek for a sensible interpretation which does accord with his intention. It is sometimes said that a testator can be capricious if he likes. Yes, if you are sure he intended to be. But you should not impute capriciousness to him merely to justify yourself in giving the words a literal interpretation.

[page 220] 8.11 This essentially forms part of the so-called ‘armchair principle’, discussed later in this chapter,40 under which a court of construction is entitled to take into account all the circumstances surrounding the making of the will and the circumstances actually known to the testator when the will was made. A leading case is Re Smalley.41 The testator executed a will that gave his entire estate to ‘my wife Eliza Ann Smalley’. On his death, it was discovered that the testator had left a lawful wife by the name of Mary Ann Smalley, but had also ‘married’, bigamously, one Eliza Ann Mercer. The latter lived with the testator until his death, believed herself to be his wife, and was reputed to be the testator’s wife in the neighbourhood in which they lived. Looking at the surrounding circumstances, the English Court of Appeal construed the words ‘my wife’ in the secondary meaning or sense as ‘my reputed wife’. A more recent application of the principle is provided by the Tasmanian case of Hopwood v Cuthbertson.42 The testator there left his estate to his four grandsons in equal shares, naming one as ‘Len Hopwood’. The testator in fact had neither children nor grandchildren, but had raised a nephew as his own, and the issue of that nephew were the beneficiaries. The drafter of the will had

mistakenly named one of the beneficiaries as ‘Len Hopwood’, but there was no known person of that name. One of the beneficiaries, however, was named Lynn Hopwood. Reading the will as a whole, in view of the surrounding circumstances, the Full Court found the only reasonable explanation was that the ordinary meaning of the relevant words lacked sense, but that their secondary meaning — that the testator intended to benefit ‘Lynn Hopwood’ — did. It followed that this secondary meaning should be applied.

Words with more than one usual meaning 8.12 If a word or phrase has more than one usual or ordinary meaning, resort to the usual or ordinary meaning principle cannot assist. The solution utilised by courts of construction is to adopt the meaning of the word or phrase that is most probable in the context of the will in question, considered as a whole, together with any admissible extrinsic evidence. Moving away from an earlier more rigid approach — where some words, over the course of time, acquired a precise legal meaning as a result of decisions applying the so-called ‘rules of construction’ — the modern approach, in line with the general principle of construction mentioned earlier,43 is to investigate the expressed intention of the testator in using the words(s) in question. For example, in Re Barnes’s Will Trusts44 a will contained a gift of ‘my money’ and a residuary gift of ‘any other personal property’, making it necessary to determine what came within the gift of ‘money’. Goulding J held that not only did balances in accounts with a bank and a building society clearly come within the gift, it also encompassed premium savings bonds. By putting himself in the position of the testator, who was a small trader, inclined his Lordship to a broad construction of the term ‘money’. Speaking of that term generally, Viscount Simon LC in Perrin v Morgan explained the point as follows:45 [page 221] In the case of an ordinary English word like ‘money’, which is not always employed in the same sense, I can see no possible justification for fixing on it, as the result of a series of judicial

decisions about a series of different wills, a cast-iron meaning which must not be departed from unless special circumstances exist, with the result that this special meaning must be presumed to be the meaning of every testator in every case unless the contrary is shown … [T]he word ‘money’ has not got one natural or usual meaning. It has several meanings, each of which in appropriate circumstances may be regarded as natural.

Similar observations may be made concerning the term ‘cash’. While it clearly encompasses notes and coins, it can extend to amounts standing to the credit of a bank account,46 although for it to include superannuation, life insurance proceeds and death benefits may require more specific language.47 This may also rest on what precisely the deceased described by reference to cash; for instance, the phrase ‘cash in my bank account’ is not amenable, it seems, to being construed to include monetary investments not held by a bank.48 8.13 Overall the case law reveals a trend against undue rigidity in this context.49 Thus in Lutheran Church of Australia South Australia District Inc v Farmers Co-Operative Executors and Trustees Ltd,50 where the High Court was required to construe a testamentary gift of ‘all my Commonwealth Bonds’, it was held that the expression ‘Commonwealth Bonds’ had no strict primary meaning, and so in its context the gift was construed to include all the investments in Commonwealth loans, including treasury bonds and inscribed stock, which the testator held at death. [page 222]

Technical words and phrases 8.14 If a testator uses words that have a technical legal meaning, prima facie that meaning will be given to those words.51 As explained by Lord Sterndale MR in Re Harcourt:52 [W]hen a testator has used words which have acquired a definite meaning in conveyancing and have for a long time been used in the drafting of wills and settlements and other like documents with that meaning, it requires a very strong case to justify their interpretation with a different sense.

This principle extends to occasions where a will is drafted by a layperson,53 though in this event, as opposed to where it is professionally drawn,54 it may

be easier to show that the testator intended a meaning other than the technical legal meaning55 (and indeed the words may be construed ‘less strictly’).56 It nonetheless appears that, whether under the dictionary principle57 or in the light of surrounding circumstances,58 only a strong case justifies straying from the technical legal meaning.59 Other technical terms, such as scientific terms, are subject to the same principle, and are thus prima facie accorded their technical meaning.

Custom 8.15 If a testator belongs to a special group of persons, such as a trading or a religious group, and the testamentary words used have a special meaning within that group, a court of construction will give effect to that special meaning, even if the words may receive a different meaning in ordinary language. For example, in Shore v Wilson60 where the testator, a member of a religious sect, used the words ‘godly persons’ in his will, the House of Lords accorded the words the meaning that was current among members of the sect. In Re Gillson (deceased) 61 where the [page 223] testator bequeathed ‘all my bloodstock’ to his trainer, the issue was whether a half-share in a colt and a part interest in a stallion should come within the bequest. The English Court of Appeal found that among persons, like the testator, interested in thoroughbred horses, the word ‘bloodstock’ had a second primary meaning that covered a share in a horse as distinct from full ownership.62

Omissions 8.16 Where a testator accidentally omits words from a will, technically a court of construction cannot insert the omitted words, as evidence as to the omission is inadmissible. Nevertheless, the will must be construed as a whole, and in interpreting words or clauses therein, a court of construction may read

words in by necessary implication.63 But this is premised on certainty in the fact of omission, either by disclosed intention or by necessary implication. As explained by Barwick CJ in Butlin v Butlin:64 The occasions when a court supplies words when it is clear that words have been omitted, whether single words or words in the form of a sentence importing an additional provision into the will, are all, in my opinion, occasions for the discovery of a necessary implication, for a compelling and convincing inference from the terms of the will against the background of the facts as they were known to or conceived to be by, the testator. In supplying the omitted words or the omitted gift, where it is certain that there has been an omission, it is the disclosed intention, expressed or necessarily implied in what he has said, that is the only relevant factor. The court is not authorised to supply the gift he might reasonably have made but the gift he has indicated that he did actually intend to make …

The application of this principle is illustrated by Fell v Fell,65 where the testator’s will stated ‘I give devise and bequeath unto’ before naming 11 beneficiaries, appointed two named executors, but omitted to make mention of the testator’s property, which was presumably to be disposed of under the will. The High Court held that, by necessary implication, the entirety of the testator’s estate was to pass to the named beneficiaries in equal shares. There are numerous similar authorities66 but, consistent with Barwick CJ’s remarks above, all emphasise that, before implication may take place, the court must not only be satisfied that it is apparent that there has been an omission, but must be able to state with strong certainty what that actual omission was. Conjecture is not sufficient. [page 224] 8.17 Further, and depending on the factual circumstances, there is obvious scope for a rectification suit rather than a construction suit in these cases.67

Ignoring words 8.18 On the same reasoning, a court of construction, in interpreting clauses or words in a will, may ignore certain words to give effect to the testator’s true intentions. In the oft-quoted advice of the Privy Council in Towns v Wentworth:68

When the main purpose and intention of the Testator are ascertained to the satisfaction of the Court, if particular expressions are found in the will which are inconsistent with such intention, thought not sufficient to control it, or which indicate an intention which the law will not permit to take effect, such expressions must be discarded or modified …

For example, in Smidmore v Smidmore69 the High Court was called upon to interpret the following clause in a will, which purported to gift property upon trust: … upon trust for such child or children of my said sons respectively as shall attain the age of 21 years and such child or children of each of my said sons respectively dying under the age of 21 years as shall attain that age or die under that age leaving issue …

It was held that the words ‘attain that age or’ should be rejected as having been inserted by inadvertence.

Changing and transposing words 8.19 To give effect to the testator’s intention, it may be necessary for a court of construction, in construing the will, either to change certain words or transpose them. Perhaps the most common error in drafting is use of the conjunctive ‘and’ when what is meant is the disjunctive ‘or’, or vice versa.70 For instance, in Aboud v Aboud71 a testator left his estate to trustees upon trust for his wife for life, with remainder on trust for his children living at the date of his death or his wife’s death, whichever the later. A further substitutional clause added that ‘should any child of mine predecease me and my wife leaving a child or children of him or her surviving’, that child or children would take. A strict reading of this latter clause would have meant that if a child survived the testator but not the wife, and left a child, that child could not take the gift. McLelland CJ held, accordingly, that giving effect to the testator’s intention required the words in the substitutional gift ‘predecease me and my wife’ to be construed as ‘predecease me or my said wife’. Other typographical errors of this kind involve ‘of’ in place of ‘or’,72 and ‘now’ in place of ‘not’.73 [page 225] 8.20

There are, however, limits on this principle, particularly with respect to

reading into a will words that are not actually there.74 For example, in Playoust v Hornsby75 the relevant clause provided for the sale and transfer of a business to a company in consideration of shares or debentures or debenture stock. In the context in which the word ‘or’ there appeared, the Victorian Court of Appeal ruled that it could not be read as ‘and’. It seemed, their Honours said, that the testator envisaged the possibility of a sale for debentures or debenture stock alone, and thus situations where the retention of control through shareholding would not be possible. To restrict the operation of the clause to cases in which the trustees retained control by means other than shareholding, the court added, one would have to read in a proviso to the effect that ‘nothing contained in the clause allows the trustees to part with control of the corporation into which the business is sold’. Relatively speaking, it concluded, ‘that would be a great many words to read into a provision of this kind’.76

Punctuation 8.21 Earlier decisions,77 which negated the relevance of punctuation in the construction of wills, are no longer correct. The modern view is that punctuation is a relevant and material factor in the construction process,78 so that commas, stops, parentheses, capital letters, blanks and erasures all inform that process.79 The weight to be given to punctuation will, however, depend on the circumstances. Where, for instance, the punctuation is random and grammar inexact, it may justify giving it lesser weight.80

Jurisdiction to omit scandalous, offensive or defamatory words 8.22 Though not strictly speaking a question of construction, mention should be made here of the court’s inherent jurisdiction, as part of its power to prevent abuses of process, to omit from the probate copy of a will words that, lacking dispositive effect, are scandalous, offensive, defamatory or blasphemous.81

Subsidiary Principles of Construction

8.23 Apart from the general principles of construction discussed above, a court of construction may pay regard to other principles to determine the testator’s intention as expressed in the will. [page 226] These are subsidiary principles because they may assist, for instance, in ascertaining the usual meaning of the words used.

Principles informed by attempt to uphold the will The ‘golden rule’ — avoidance of intestacy 8.24 It is an oft-stated principle, where there is potential ambiguity stemming from alternative constructions of the relevant words, that a court of construction will endeavour to adopt a construction that will avoid an intestacy. It has been judicially remarked, to this end, that ‘the mind never inclines towards intestacy; it is a dernier resort in the construction of wills’.82 In Fell v Fell,83 discussed earlier,84 where the testator named beneficiaries and executors in the will but made no mention of the property to be thereby disposed, in holding that the omitted gift should be supplied by implication, a principle upon which the High Court relied was the ‘golden rule’. As explained by Isaacs J:85 To create a complete intestacy would be openly opposed to the intention of the testator, and I think that should not be done by the Court if at all avoidable. All reasonable inference points … in the direction of avoiding the intestacy, and adhering to the same implication with regard to the legal estate vested in executors as to the intended beneficial estate vested in the named objects.

The presumption against intestacy cannot, however, oust clear and unambiguous testamentary words, and, in line with the general principles discussed earlier,86 gives a court no licence to adopt a meaning on the basis of speculation.87

Ut res magis valeat quam pereat 8.25

The principle ut res magis valeat quam pereat bears superficial similarity

to the golden rule — meaning ‘that the thing may rather have effect than be destroyed’ — inclining the court to lean towards a construction of a will that preserves rather than destroys. However, this principle applies not so much where there may be two rival constructions of the same words, but where a more liberal construction than a literal one would keep alive the instrument and continue to give effect to the testator’s intention.88 It really forms part of the larger principle that a court of construction may supply, omit, change or transpose words in a will to give effect to the testator’s true intentions.89 The High Court has acknowledged and applied the ut res magis valeat quam pereat principle on several occasions.90

Falsa demonstratio non nocet, cum de corpore constat 8.26 Where the description of property or persons in a will consists of more than one part, and one part is true, but the other is false, the principle falsa demonstratio non nocet, cum de corpore constat — meaning ‘false description does not preclude construction’ — enables a court of construction to give effect to the true part and discard the false part, so that the latter will not invalidate the gift.91 For the principle to apply the court must be satisfied, by resort to [page 227] admissible extrinsic evidence where necessary,92 that the true part describes the property or persons with sufficient certainty. A common instance of its operation vis-à-vis description of property is where the testator describes property by reference to a name, lot or section number that is incorrect.93 Day v Tric94 provides another illustration. The testator devised ‘all my freehold houses in Aldersgate Street’. Part of this description was true, in that the testator held houses in that street, but part was false, in that the houses were leasehold and not freehold. The leasehold houses were, applying the falsa demonstratio principle, held to pass under the will. Similarly, in Re O’Mullane (deceased)95 a testator made a gift of bonds described in the will as being in the custody of a bank in Swanston Street. It transpired that the testator held the bonds, but they were in the custody of another branch of the same bank in Elizabeth Street. Again, the bonds passed under the will.

Re O’Mara96 illustrates the application of the falsa demonstratio principle to a description of persons. There the testator gifted his residuary estate to be shared ‘One half equally among my cousins, Ellen O’Mara, Phoebe O’Mara, and Mary O’Mara’. The testator had no cousins of the first names mentioned. The evidence indicated, however, that the testator was on good terms with the plaintiffs in the action, being his only female cousins in Australia, who were respectively named Margaret O’Mara, Annie O’Mara and Bridget O’Mara. The gift was held effective to pass the estate to the plaintiffs. 8.27 There are authorities to the effect that the falsa demonstratio principle applies where the entire description is wrong. Thus in Re Gifford,97 involving a bequest of ‘my war bonds’, when the will was made no war bonds were held by the testator but 10 years earlier the testator’s war bonds had been converted into consolidated inscribed stock, the stock passed under the gift. But the principle only applies in this instance if the context of the will and the surrounding circumstances clearly show what the testator meant.98 8.28 The falsa demonstratio principle is subject to another principle, namely that descriptive words may not be rejected as giving a false description if those words can be read as words of restriction. The leading authority is Wrightson v Calvert,99 where the testator made a gift to ‘[A]’s two grandchildren. They live near [G]’. A in fact had three grandchildren, but only two lived near G. Only those two were held entitled, the grandchild not living near G being excluded. In concluding that the words of description restricted the gift, Page Wood VC reasoned as follows:100 [Counsel for the plaintiff] contended that the statement of the place of residence was merely falsa demonstratio, but there is this fallacy in the argument: I am asked to imply a gift to the whole class, on the ground that there is no demonstration of the particular persons designed … and then, when it appears that there is in point of fact a sufficient demonstration, I am asked to reject this as a false one, because it does not include a person whom the Court would, if there were no demonstration, be compelled to import as an object of bounty, in order to escape the alternative of holding the gift void for uncertainty.

[page 228]

Ejusdem generis

8.29 It is a general principle of construction that, where a particular class is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis — that is, ‘of the same kind’ — of the particular class.101 So if a testator refers to a class of property or persons, followed with more general words, the scope of the latter may be confined by the preceding narrow words. For example, in Re Alleyn (deceased),102 involving a bequest of ‘all my shares bonds &c I have’, Hogarth J ruled that ‘&c’ should be read as referring to property ejusdem generis with shares and bonds. Money on fixed deposit was thus excluded from the bequest. 8.30 Yet the extent to which this principle has any real independent application may be queried. As a principle of construction, it certainly cannot oust a testator’s expression of a contrary intention. If the clause, construed in the context of the entire will, reveals a contrary intention, the words take their ordinary meaning, not one confined by the narrower class. Nor need a contrary intention always be express here. And some judges have even suggested that the ordinary meaning of the added words should not be confined ejusdem generis unless this is consistent with the testator’s intention.103 There are multiple cases, for instance, where the words ‘effects’ or ‘personal effects’ have been held not to be ejusdem generis with the preceding word ‘furniture’,104 though in each case there were no further words from which a narrower class list could be gleaned.105 Also, if application of the ejusdem generis principle would lead to a partial intestacy in the case of a residuary gift, there may be grounds to reject its application.106

Ambiguous words do not control a clear gift 8.31 As a general principle of construction, ‘a clear gift in a will is not cut down by anything subsequent in the will which does not with reasonable certainty indicate the intention of the testator to cut it down. That is, an absolute interest is not cut down except by clear words’.107 Thus in Re Gouk (deceased),108 after giving pecuniary legacies, the testator gave ‘all the remainder of which I am possessed to my sister Florence Elizabeth Allen … and thereafter to her issue’. Danckwerts J held that the sister took an absolute interest in the residuary estate, the gift to her being clear, which gift could not be cut down by

the ambiguous words ‘and thereafter [page 229] to her issue’. Similarly, in Ritchie v Magree109 the High Court was required to construe the following clause in the testator’s will: I also direct that my wife is to have full use of my property situate at 81 Harris Street, Harris Park, and that upon her death [the named real property] is to become the property of my daughter. The remainder of my real and personal possessions is to become the property of my wife. I also direct that my wife is at liberty to dispose of any portion of my estate if she thinks it advisable with the exception of course [of the named real property]. I also direct that upon the death of my wife, all of that portion of my possessions remaining is to become the property of my daughter.

It held, applying the above principle, that the widow of the testator took an absolute interest in the residuary estate and thereafter the gift over to the daughter was void. 8.32 Again, the principle is subject to a contrary intention. If there is proof that the testator did in fact intend to qualify the gift, that intention is given effect. The evidence may reveal that, notwithstanding the ostensibly absolute terms of the gift, the testator intended that a gift over should ensue, to which the court gives effect by construing the absolute interest as no more than a life interest.110

Inconsistency and conflict The ‘rule of despair’ 8.33 Difficulties arise in the construction of wills by contradictory provisions in a will. Two clauses in a will may be mutually inconsistent.111 In this event, the court may be forced to resort to the so-called ‘rule of despair’ where, if two clauses conflict, the latter prevails.112 As stated by Lord Greene MR:113 It is a fundamental rule in the interpretation of wills that effect must be given, so far as possible, to the words which the testator has used. It is equally fundamental that apparent inconsistencies must, so far as possible, be reconciled, and that it is only when reconciliation is impossible that a recalcitrant provision must be rejected. Even in that case, of two irreconcilable provisions, it is the latter that prevails …

8.34 The largely arbitrary nature of this ‘rule’ has prompted courts to find ways of circumventing its operation. The simplest approach is for the court to determine that the testator’s real intentions, from a reading of the will as a whole, were that the first clause was intended, and not the second.114 Nor, it appears, should the rule of despair be applied if an intestacy thereby results, the golden rule taking primacy in these circumstances.115 Further, authority indicates that, if the inconsistency arises out of the same object being given to two different persons in different clauses, the conflict may be resolved by giving each person a half [page 230] share in that object.116 If there are inconsistent gifts of residue, the first gift may take effect despite the rule of despair, as the second gift may be treated as a substitutional provision, which takes effect if, for example, the first fails for lapse.117 Finally, where the inconsistency is between a clause in a will and a clause in a codicil, the general rule is that, to the extent of the inconsistency, the codicil has revoked the will.118 It follows, therefore, that the ‘rule of despair’ functions as a last resort.

The rule in Lassence v Tierney 8.35 The rule in Lassence v Tierney119 addresses a conflict between a testamentary clause that appears to confer an absolute gift on a beneficiary where a later clause engrafts or imposes certain trusts on that absolute interest. According to the ‘rule’, if the trusts fail for any reason, the absolute gift takes effect so far as the trusts have failed to the exclusion of the residuary legatee or next of kin on a partial intestacy.120 In other words, subject to contrary intention, the clauses are construed together so that an absolute gift vests in the first beneficiary if the trusts in the second clause fail. The ‘rule’ has been consistently applied in Australia.121

Admissibility of Extrinsic Evidence in Construing a

Will 8.36 An application for a grant of probate may involve questions of evidence, such as whether the document in question is intended to be testamentary in nature,122 or whether the testator possessed the requisite mental capacity.123 In the probate context, extrinsic evidence is admissible to determine the issue. But as noted earlier,124 in the case of a court of construction, the admissibility of extrinsic evidence of the testator’s actual intentions is severely constrained. To remove all restrictions on admission of extrinsic evidence of intention would, it is said, ‘allow excessive scope for attempts to secure an interpretation contradicting the actual terms of the will’, opening the door to fabrications or fantasies of the ‘he really meant me’ or ‘he always said I would get the house’ variety.125 The wholesale admission of extrinsic evidence could, to this end, raise both credibility and reliability issues. As to the former, would-be beneficiaries could exaggerate their relationship and fabricate promises of bequests. Reliability is an issue because testators are not obliged to draft their wills ‘to accord with the sincere or mendacious assurances they may have given to those close to them’.126 The (limited) instances in which extrinsic evidence may be admitted at the construction stage are considered below, initially by reference to the common law, and then to its statutory reform. [page 231]

Admissibility of extrinsic evidence at common law 8.37 At common law extrinsic evidence is admissible in a court of construction in two instances. The first, termed the ‘armchair principle’,127 allows the court to place itself in the position of the testator at the time of executing the will, and thereby take into account the circumstances surrounding the testator at that date. These circumstances may assist the court in construing the testamentary language. The second instance admits direct extrinsic evidence of a testator’s actual intentions limited to equivocations.

Each instance is discussed below. 8.38 It should also be noted that direct extrinsic evidence of the testator’s actual intention is admissible to rebut certain equitable presumptions, such as equitable ademption128 and satisfaction.129

The ‘armchair principle’ 8.39 To understand the language employed by the testator, the court is entitled, it is said, to ‘sit in the testator’s armchair’.130 The so-called ‘armchair principle’ has been expressed in the following terms:131 The general rule is that, in construing a will, the court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words … [T]he meaning of words varies according to the circumstances of and concerning which they are used.

The armchair principle allows the admission of evidence of the testator’s general habits and knowledge. It is most commonly used to explain the meaning of the testamentary words used in relation to either descriptions of persons or of property. Evidence is therefore admissible of the testator’s knowledge of, and relationship with, persons named as beneficiaries, and particularly of the testator’s use of language. The armchair principle may, for instance, admit evidence of the testator’s habit in calling a person by a particular name or nickname. Thus, in the oft-quoted case of Charter v Charter132 the testator appointed as an executor one ‘Forster Charter’, and also left a gift to that person. The testator had two sons, William Forster Charter, who was always called Billie, and Charles Charter, whom the testator always called Forster. It was held, using the armchair principle, that the ‘Forster Charter’ the will appointed as executor was Charles Charter, not William Forster Charter. If the evidence is sufficient for this purpose, [page 232] a court is not precluded, moreover, from giving effect to a disposition to a person whose name the testator misstated entirely.133 There is, it has been said,

‘no canon of will construction which requires greater weight to be given to either a name or a description of an intended beneficiary’.134 The same principle applies to descriptions of property.135 For instance, evidence is admissible of the name by which the testator called a particular place or property.136

Limitations on the ‘armchair principle’ 8.40 When seated in the testator’s armchair, ‘the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said’.137 It follows that a major limitation on the use of the ‘armchair principle’ is that evidence of surrounding circumstances cannot be used if its effect is to alter clear and unambiguous words used in the will. This is so even if it is probable that the testator intended the words to have a different meaning. This ‘strict’ approach is illustrated by the ruling of the House of Lords in National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children.138 There, a Scotsman who had lived all his life in Scotland, by a will made in Scottish form left a legacy ‘to the National Society for the Prevention of Cruelty to Children’. The legacy was claimed by the society of that name, which had its head office in London and did not operate in Scotland. The evidence indicated that the testator was aware of the rival claimant, the Scottish National Society for the Prevention of Cruelty to Children. The testator had almost no connection with England. Their Lordships held that, whilst extrinsic evidence could indeed be admitted, that evidence was insufficient in the circumstances to displace the primary meaning of the words used in the will. The words of Earl Loreburn are instructive:139 … I think the true ground upon which to base a decision in this case is that the accurate use of a name in a will creates a strong presumption against any rival who is not the possessor of the name mentioned in the will. It is a very strong presumption and one which cannot be overcome except in exceptional circumstances. I use as a convenient method of expressing one’s thought the term ‘presumption’. What I mean is that what a man has said ought to be acted upon unless it is clearly proved that he meant something different from what he said.

[page 233]

The ‘strict’ view confines the ‘armchair principle’ to where the words used are ‘insensible’, in which case a court may look at the surrounding circumstances to ascertain if the words could bear some other meaning, in the light of those circumstances. Only if the words have no sensible operation if construed according to their normal meaning is extrinsic evidence admissible. But if the words can take their normal meaning, extrinsic evidence cannot be admitted to actually create an ambiguity in relation to the words. That ambiguity must appear from the words used in the will, not from the surrounding circumstances. 8.41 The ‘strict’ approach has been challenged in some cases that appear to suggest that extrinsic evidence may be admitted to show an ambiguity, even if the words used in the will are clear and thus comply with the ordinary meaning rule. In such a case, there remains a strong presumption that the description of the subject or object in the will prevails, but it may be overcome by extrinsic evidence of the surrounding circumstances. The ruling in Re Smalley,140 discussed above,141 is illustrative, whereby the English Court of Appeal found that the surrounding circumstances, inter alia, revealed that the testator, by a gift to his ‘wife’, intended to benefit a woman who was not his legal wife. Similarly, in Day v Collins,142 where the testator left a gift ‘to my wife an annuity of one hundred and fifty pounds’, but the evidence showed that he had deserted his legal wife to cohabit in a different country with another woman for 23 years until his death, the New Zealand Court of Appeal admitted extrinsic evidence of the surrounding circumstances revealing that the testator intended the other woman to take the gift.

Equivocations 8.42 At common law direct evidence of a testator’s actual testamentary intentions is admissible in the construction of wills only in the case of equivocations.143 Such evidence may include the testator’s actual instructions to the solicitor or drafter who prepared the will and any declarations by the testator as to his or her testamentary intentions, whether made before or after the will. Ordinarily, an equivocation — though sometimes called a latent ambiguity, it is not simply to be equated with either ambiguity or mere difficulty of interpretation, for otherwise the rules of interpretation and construction would be otiose144 — arises where the testamentary language may

be applied equally to each of two or more persons or things. Lord Abinger CB expressed the relevant principle as follows:145 Now there is but one case in which it appears to us that this sort of evidence of intention can properly be admitted, and that is, where the meaning of the testator’s words is neither ambiguous nor obscure, and where the devise is on the face of it perfect and intelligible, but, from some of the circumstances admitted in proof, an ambiguity arises, as to which of the two or more things, or which of the two or more persons (each answering the words of the will), the testator intended to express.

For instance, in relation to descriptions of persons, if a testator who makes a bequest to ‘my daughter Sara’ has two daughters of that name, direct evidence of intention is admissible to resolve the ambiguity, if possible.146 In Doe d Gord v Needs,147 for example, the testator devised one of his houses to ‘George Gord the son of George Gord’, left a legacy to ‘George Gord the son of John Gord’, and then devised another of his houses to ‘George Gord the son of Gord’. Direct evidence of intention was admitted to show which Gord was intended in respect of [page 234] the third gift. As to descriptions of property, if a testator leaves a gift, say, of ‘my property at Southport’ but owns two properties at Southport, again there is an equivocation and relevant evidence is admissible to show which property the testator intended to pass.148 8.43 Although equivocation and the armchair principle are nominally distinct, they may interrelate to the extent that, by the application of the armchair principle, an equivocation may be created, so that extrinsic evidence of the testator’s intention may be admissible. Conversely, the armchair principle, and other principles of construction, may reveal that there is in fact no ambiguity or equivocation at all, in which case extrinsic evidence of intention is inadmissible.149

Statutory modification 8.44

Pursuant to law reform recommendations,150 the English Parliament

enacted a statutory provision that allows extrinsic evidence to be admitted in defined circumstances.151 Each Australian jurisdiction excepting South Australia has done likewise via its wills legislation,152 also following law reform recommendations.153 The same has ensued in New Zealand, again prompted by law reform recommendations.154 The core Australian provision states that, in proceedings to construe a will, evidence (including evidence of the testator’s intention) is admissible to assist in interpreting testamentary language if the language makes the will (or any part of it) meaningless, ambiguous on the face of the will, or ambiguous in the light of the surrounding circumstances.155 Despite the foregoing, it adds that evidence of the testator’s intention is not admissible to establish any of the said surrounding circumstances.156 In other words, evidence of surrounding circumstances is not admissible to actually create an ambiguity. Otherwise, except in the Australian Capital Territory, the legislation preserves the occasions where the common law allows admission of extrinsic evidence.157 Hence, it does not oust the ‘armchair principle’ or the ‘equivocation exception’ (or, for that matter, the equitable presumption underscoring the doctrine of satisfaction),158 but adds to them.159 8.45 The major statutory innovation is allowing admission of extrinsic evidence, and most importantly, evidence of a testator’s actual intentions, where the language is ambiguous on the face of the will. While English case law suggests that those circumstances are limited to equivocations in any event,160 this appears to be an unduly restrictive interpretation, given that the National Committee for Uniform Succession Laws161 envisaged that the provision served [page 235] to extend admissibility to all forms of ambiguity and not simply cover equivocation, a point that has support in Australian dictum.162 The Australian Capital Territory and Victorian section envisages that extrinsic evidence may be admitted not only where the language used by the testator is meaningless or ambiguous, but also where it renders the will (or part

of it) ‘uncertain’.163 This, in any event, extends the operation of the equivocation doctrine.164

Consequences of inability to ascertain meaning 8.46 If, after using all, or some, of the appropriate principles set out above, a court of construction remains unable to ascertain the meaning of the words used, the relevant disposition is void for uncertainty.165 This is so whether the uncertainty relates to either the actual subject matter of the gift166 or the identity of the person to receive the gift.167

Construction of Gifts to Persons 8.47 Both the common law and statute espouse various principles applicable to the construction of testamentary gifts to persons. The most fundamental are addressed below.

Donee to be ascertained at date of will 8.48 As a general rule, a person who fulfils the description in the will at the date of the will takes the gift. This is in contrast to the position in relation to property, where the general rule is that a will speaks from death.168 In Amyot v Dwarris169 the testator devised his real estate to ‘my eldest son of my sister … and his heirs forever’. At the date of the will the sister had two sons, but both predeceased the testator. Although the sister later had two other sons who survived the testator, the gift was held to lapse. The reference to the eldest son was construed as a reference to the eldest of the two sons who were living at the date of the will. The same principle applies to wives, so that a gift lapses if the wife is not the one at the date of the will. 8.49 However, the principle must yield to a contrary intention, namely where other provisions in the will or the surrounding circumstances indicate that the beneficiary is to be ascertained at the time of the testator’s death. Sometimes, for example, there is a gift to the holder of a particular office, as in Re Daniels,170 involving a gift to ‘the Lord Mayor of London for the time

being’, it being held that the reference was to the Lord Mayor at the date of the testator’s death, indicated by the phrase ‘for the time being’. The gift is construed here as virtute officii — by virtue of the office rather than the individual — and is also illustrated by [page 236] multiple charity law cases where gifts are made to religious office-holders.171 The general rule, moreover, is displaced in the case of class gifts.172

Gifts to persons in a specified relationship to the testator 8.50 Where a will identifies as a beneficiary a particular relation of the testator, such as ‘my sister’ or ‘my aunt’, the general principle here is that the testator intended to benefit blood relations,173 which includes half-bloods such as step-relationships.174 Relationships by affinity, that is, relationships arising by marriage, are however excluded. Similarly, gifts directed to the ‘issue’ of a person are construed as referring to that person’s blood descendants or progeny.175 The term ‘descendants’, for this purpose, is presumed not to extend to persons who, though being of the same stock, belong to a different line, as through a sibling of a lineal ancestor.176 A reference to ‘next of kin’ likewise takes its ordinary meaning, referring to the ‘nearest of kin’ or ‘nearest in blood relation’.177 The foregoing is, as always, subject to evidence of contrary intention, whether in the will itself or by necessary implication.178

Construction of gifts to children 8.51 A reference to ‘children’ in a will is, unless the admissible evidence indicates the contrary, construed to refer to a first generation descendant only, and not remoter issue.179 Thus a gift to children, whether of the testator or a third party, does not encompass grandchildren of that person.180 Nor will stepchildren be included in a general gift to ‘children’ of a person181 —

[page 237] in its ordinary sense, the term refers to natural children182 — although the case law reveals multiple instances where this has yielded to a contrary intention.183 8.52 Illegitimate children At common law a gift to a child or children of a person was construed as one to his or her legitimate issue, not those born out of wedlock.184 The common law, however, recognised two specific exceptions to this principle: first, where the will itself indicated that illegitimate relations were to take;185 and second, where no legitimate relations satisfied the description in the will, thus making it impossible for the gift to apply to a legitimate relation.186 Informing the latter exception was both the law’s predilection against intestacy and its aim to give effect to the testator’s (likely) intention. 8.53 The common law has now been reversed by status of children legislation in all Australian jurisdictions. The relevant provisions, though not identical, ultimately dictate that, for testamentary purposes (as well as other purposes), ex-nuptial children are to be equated with legitimate children.187 Thus, a gift in a will ‘to my children’ is now to be construed as including both legitimate and ex-nuptial children if the testator has left children of both types.188 It is, of course, still possible for a testator to exclude illegitimate children from the gift but, as the legislation makes clear, this must be done expressly. The mere use of the word ‘legitimate’ or ‘lawful’ is not, by itself, sufficient to indicate that intent. Even if excluded under the express terms of a will, illegitimate children have standing to lodge a claim for family provision.189 8.54 Adopted children The adoption legislation in each jurisdiction prescribes the basic legal position that an adopted child becomes a child of the adoptive parents and ceases to be a child of his or her natural parents.190 Construction of the will takes effect accordingly, so that an adoptive child will be included in the description of a child in a will of the adoptive parents. [page 238]

Conversely, unless a contrary intention is shown, such children cease to have any rights to take under the will of their natural parents, as they are legally no longer children of those parents. 8.55 Children en ventre sa mère A precondition for any legal right reposing in a child is that he or she be born alive.191 Upon that birth the child has a separate existence from the mother.192 Thus, should a testator leave a gift to ‘my children living’ and dies prior to a child en ventre sa mère — that is, a child in the womb — being born, that child, on its subsequent birth, is encompassed within the gift.193 The same is true as regards gifts to a class, say, a gift ‘to my children’, in that those who are living at the date of the testator’s death include a child en ventre sa mère if that child is subsequently born alive.194 The principle underscoring this has been judicially described as ‘fictional’, and thus not really a question of construction at all, except implicitly in that it must be ‘within the reason and motive of the gift’, and is designed to secure a benefit to which the child would have been entitled had he or she actually been born at the relevant date.195 In New South Wales and Queensland, the wills legislation makes specific provision to the effect that a testamentary reference to a child or issue includes a child or issue en ventre sa mère at the death, provided that the child or issue is born alive and remains alive for a period of 30 days.196 8.56 Artificial insemination A child born through reproductive technology, commonly known as artificial conception or insemination, is now treated as the natural child of the parents under specific legislation,197 prior to which a child so conceived was treated as illegitimate. As a result of the legislation, in succession law such a child now stands in the same position as an adopted child or a child en ventre sa mère.198

Construction of gifts to spouses 8.57 A gift to ‘my husband’ or ‘my wife’ in a will is construed to mean the husband or wife at the time of making the will.199 Again, this is subject to a contrary intention in the will. If descriptive words have been used or the testator denotes a specific person, some other date may be intended.200 The termination of marriage, in any event, serves to revoke a testator’s will,201 and so the issue is likely to be confined to where the testator is, at the date of

death, separated but not divorced from his or her spouse. 8.58 There may be construction issues if the testator, although not formally married, leaves a gift to ‘my wife’ or ‘my husband’. If there is no person justifying that description at the date of the testator’s death, the gift will lapse, although it is open to a court to construe the description as referring to a person with whom the testator shared a de facto relationship or a civil partnership at or before his or her death. (Such relationships, in any case, may trigger inheritance rights in the event of intestacy).202 No special legal principles apply here203 — albeit that prima facie the law defines a spouse as a person who is legally married to another204 — so the general principles of construction as discussed above are applicable. If it is established [page 239] under those principles that the testator meant the expression ‘my wife’ to mean his de facto relationship wife, the gift will take effect in her favour, both where the testator has left only a de facto wife and where he has left both a legal wife and a de facto wife.205

Construction of gifts to transgender persons 8.59 In the Australian Capital Territory and New South Wales the wills legislation makes specific provision for the operation of wills relating to transgender persons.206 It states that a testamentary beneficiary does not lose any rights of entitlement under the will merely because he or she is a transgender person.207 The foregoing is subject to a contrary intention, expressed in the will in New South Wales, or otherwise by extrinsic evidence in the Australian Capital Territory.208

Construction of ‘class gifts’ 8.60 A ‘class gift’ is a gift to a body of persons, uncertain in number at the time of the gift, so that the share of each depends upon the ultimate number of persons that eventually come within the class. A class gift must be

distinguished from an individual gift, as different legal consequences may ensue. In particular, the class closing rules, discussed immediately below, have no application to gifts to individuals. A testator may use of the terminology of a class gift to describe the beneficiaries but also identify the individual within that class, either by name or number, in which case the gift is construed as an individual gift. In this event, the share of the individual is fixed once and for all, and should it fail passes either to the residuary estate or on intestacy, depending upon the circumstances. Thus a gift ‘to the five children of B’ is not a class gift, but an individual gift to a member of that class.209 The same applies if the five children had been identified by name.

Class closing rules 8.61 A class gift, conversely, is a gift where ‘the persons in question must be united or connected by a common tie so that you can say that the testator was looking to the body as a whole rather than to its members as individuals’.210 Where, for instance, a testator leaves a gift ‘to my grandchildren’, it is a class gift in the sense that the gift is ‘to a class, consisting of persons who are included and comprehended under some general description’.211 Consider, for example, a testator who has three grandchildren who survive him, but after his death another grandchild is born and there is a possibility of other grandchildren coming into existence. This situation poses problems for the law of succession because, were one to wait for all possible grandchildren to be born, the administration of the estate would be unduly delayed: in fact, it would be delayed until it is clear that no more grandchildren could come into existence. 8.62 To deal with this problem, the common law developed rules of construction — known as the ‘class-closing rules’212 or the rule in Andrews v Partington213 — which in the above example close the class at the date of the testator’s death, so that the three grandchildren living at the date are entitled, but those born thereafter are not. The class closing rules are subject to a contrary intention in the terms of the will, say, by stating that the gift is to the class ‘whenever born’ [page 240]

or ‘at whatever time they may be born’.214 Even so, the rules are not designed to carry out the testator’s intention, but are rather rules of convenience, designed to assist early vesting.215 The effect of the class closing rules requires consideration in the following four distinct scenarios, the third and fourth of which are the real concern of the rule in Andrews v Partington.

Immediate gift without qualification 8.63 An immediate gift without qualification may be a gift ‘to the children of A’ or ‘to all my grandchildren’, for example. In this situation, any members of the class alive at the testator’s death take to the exclusion of after-born members.216 If there are no members of the class in existence at the testator’s death, the class remains open; that is, the class-closing rules have no application, so that all persons coming within the description of the class take, whenever born.217

Mediate gift without qualification 8.64 A mediate gift without qualification is a gift to the class preceded by a limited, usually a life, interest. An example is a gift ‘to A for life, remainder to the children of B’. As no member of the class can call for a share in possession until the death of the life tenant, the class does not close until that date.218 In the example, the class closes on the death of A; children in existence at that time are included, but any children born to B thereafter are excluded. As in the first case above, however, if there are no children of B in existence at A’s death, the class remains open so as to include all of B’s children whenever they are born.

Immediate gift with qualification 8.65 An example of an immediate gift with qualification is a gift ‘to all my grandchildren who attain the age of 21’. The qualification need not relate to age; it may be another condition, say, marriage. Here the class is closed when the first member of the class satisfies the contingency, when the first grandchild attains age 21 in the said example. All potential members of the class who are in existence at that date are included in the class, so that if, at the testator’s death, there are three grandchildren, aged 25, 15 and 5 respectively,

the class closes as one has satisfied the contingency. The other two grandchildren receive their share on attaining age 21,219 but any grandchildren coming into existence after the testator’s death are excluded. The other possibilities are that the testator has no grandchildren at the time of his or her death, or has grandchildren none of whom have reached age 21. In the latter case the class closes when, and if, the first grandchild reaches age 21, so that grandchildren alive at the date take, but not those born thereafter.

Mediate gift with qualification 8.66 As in the second scenario above, a mediate gift with qualification is a gift to the class preceded by a limited estate, but, as in the third scenario, the class gift itself is subject to a contingency. An example is a gift ‘to A for life, remainder to all the children of B who attain 21’. Here, the class closes on A’s death, if there are any children of B who have attained age 21 at that time. If there is no child of B who has attained that age on A’s death, the class closes when the first child of B does so. Again, children in existence at that date are included, but those born thereafter are excluded.220 [page 241]

Construction of Gifts of Property Will speaks from death as to property 8.67 As noted above, the relevant date of ascertainment of beneficiary(ies) is the actual date of the will.221 The gift is construed as being to the person who fulfils that description at that time. But in respect of property the reverse is the case; the relevant date is the date of the testator’s death, a point declared by the wills legislation in each jurisdiction.222 The legislation states that a will is to be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the testator’s death, unless a contrary intention appears. The point is one of especial significance as regards the common law doctrine of ademption, discussed elsewhere.223

For example, a testamentary gift of ‘all my paintings’ is construed to include not only those paintings owned by the testator at the date of the will, but also any paintings the testator subsequently acquired and retains. The principle has particular application in relation to generic descriptions of property, which can increase or diminish, as in the above example. A similar result ensues if the testator left a gift of ‘all my shares in X Co’, or ‘my lands in Tasmania’. It also applies to residuary gifts, say, of ‘all my real and personal estate’, which encompasses real and personal property as at the date of the testator’s death, and is not confined to property at the date of the will. 8.68 Nonetheless always a matter of construction,224 the statutory rule must yield to an expression of a contrary intention in the will (or even apart from the will in the Northern Territory and Victoria). This may be so in the case of a non-generic description of property, so that only the property answering that description at the date of the will that remains at the testator’s death passes under the gift.225 In assessing whether a contrary intention exists, it appears that the ordinary principles of construction are to be applied, so that extrinsic evidence, where admissible under those principles, may assist the court in making the determination.226 8.69 Possessive pronouns, such as ‘my’, may indicate a contrary intention for the purpose of the legislation, but are unlikely to do so by themselves. The use of such words may, after all, be equally referable to generic or non-generic descriptions of property.227 A contrary intention [page 242] may appear if the will itself specifically refers to the item existing at the date of the will rather than at the date of death, although this is not necessarily indicated by the use of words such as ‘now’, which can be construed as referring to the date of death.228 In Wagstaff v Wagstaff,229 for example, no contrary intention was found in a gift of property ‘which I now possess’, Lord Romilly MR deciding that the words really meant ‘which I possess’. There is, conversely, case law suggesting that such words may evince a contrary intention.230 This reveals the considerable discretion, stemming from the

limitless scenarios with which it may be presented, the court enjoys in deciding whether a contrary intention exists for this purpose. 8.70 Where the statutory rule is in fact excluded by contrary intention, the gift is ordinarily adeemed. The beneficiary in this event takes nothing, as the specific gift has ceased to exist at the date of death.231 The outcome differs if the property, or part thereof, still exists, in which case the beneficiary may benefit. An example is found in Re Evans,232 where the testator devised his ‘house and effects known as Cross Villa situated in Templeton’. Joyce J discerned a contrary intention in the circumstances, so that the will did not speak from death, but from the date of the will. At that date the premises consisted of half an acre of land with one house. The testator later divided part of the land from the remainder by the use of a hedge, and built two more houses upon that part. As a result of the non-application of the legislation, the entire half-acre, including the two new homes, passed to the beneficiary.

Specific statutory rules relating to gifts of property 8.71 Apart from the legislative provision discussed above, the wills legislation states specific rules relating to gifts of property, in almost identical statutory language. These are discussed below.

Gifts of land includes leasehold 8.72 The wills legislation states that, subject to a contrary intention233 (except in Tasmania), a general disposition of land, or of the land in a particular area, includes leasehold land whether or not the testator owns the freehold land.234 In the Northern Territory and Victoria the contrary intention may stem from outside the will but elsewhere it is confined to the will. What drove these provisions is that historically, and before 1837 in the United Kingdom, a general testamentary disposition of ‘land’ related only to freehold land, so that if the testator owned leasehold land it would not have been encompassed within the gift.235 The legislation reversed this.236 [page 243]

Devise without words of limitation 8.73 At common law a devise of land equated to a conveyance, so that such a devise, without words of limitation, passed only a life estate. In order to pass the fee simple, it was necessary to include words of limitation in the devise, for example ‘to X and his heirs’. Statutory provisions now reverse the common law position so that a disposition of real property without words of limitation is construed as passing the entire estate or interest of the testator in the property.237 Again, the rule is subject to a contrary intention (other than in Tasmania), appearing in the will or, in the Northern Territory and Victoria, otherwise.238

Devise of estate tail 8.74 The fee tail estate was never common in Australia, and remains largely of historical interest, having been abolished in all jurisdictions except the Australian Capital Territory and South Australia.239 The fee tail was an estate of inheritance, passing to defined heirs and not freely alienable. In South Australia, where there is a possibility of existence of an estate tail, the wills legislation states:240 Where any person to whom any real estate is devised for an estate tail or an estate quasi entail, dies in the lifetime of the testator leaving issue who would be heritable under the entail and any such issue are living at the time of the death of the testator, the devise does not lapse but takes effect as if the death of that person had happened immediately after the death of the testator unless a contrary intention appears by the will.

The obvious effect of this provision is to preserve the estate from the doctrine of lapse, so long as eligible issue survive.

Dispositions include both real estate and personal estate 8.75 The wills legislation in some jurisdictions states that a disposition of the entire estate of a testator, or his or her residuary estate, that refers only to his or her real estate or only to the personal estate is to be construed as including a disposition of both the real and the personal estate.241 Equivalent provision is found in some other jurisdictions, but limited to dispositions of the residuary estate.242 In each jurisdiction the relevant provision must yield to a contrary intention expressed in the will. Provision is also made for failure of

part of the disposition, in which case the fractional part that fails accrues to the part that does not fail.243

Powers of appointment 8.76 All jurisdictions make specific statutory provision for the construction of powers of appointment.244 Broadly speaking, the legislation deems all or the residue of the testator’s property, or all or the residue of his or her property of a particular description, to include all of the property (of the relevant description) over which he or she has a general power of appointment exercisable by will, and to operate as an exercise of the power.245 Thus, where a testator is a donor of a power of appointment, and the power is one that enables the donee to appoint without restriction,246 a general disposition of all of the residue of the testator’s property (and all of the residue of property of a particular description) within the scope of the [page 244] power operates as an execution of the power. However, as the legislation is limited to powers created by will, a power of appointment created by deed only is excluded.247 But if the power is created by will, it would appear that the legislation applies whether the will was made before or after the creation of the power.248 8.77 Other than in Tasmania, the rule prescribed by the legislation yields to a contrary intention appearing in the will (or elsewhere in the Northern Territory and Victoria), such that an expression that is not consistent with the concept that the general devise was meant as an execution of that power prevails. The courts, it appears, have been reluctant to find a contrary intention in these circumstances.249

1. 2. 3.

As to the grant of probate, see 11.29–11.36. Re Barrance [1910] 2 Ch 419 at 421 per Parker J. See 8.36–8.46.

4. 5. 6.

7. 8.

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

22.

23. 24. 25. 26.

See, for example, In the Estate of Last (deceased) [1958] P 137 (where the issue concerned who should be granted letters of administration); Re Cherrington (deceased) [1984] 2 All ER 285 (where the issue concerned the identity of the executors). See, for example, Re Loweke [1995] 1 Qd R 615. Re Hawksley’s Settlement [1934] Ch 384 at 397 per Luxmoore J (‘having regard to the form of the order of the Probate Court, I am free to consider the question of construction and to treat the opinion expressed by the President for this purpose as merely obiter’). See generally C H Sherrin, ‘The Wind of Change in the Law of Wills’ [1976] Conv 66; R Kerridge and J Rivers, ‘The Construction of Wills’ (2000) 116 LQR 287. [1943] AC 399 at 420–1. See also Nicol v Chant (1909) 7 CLR 569 at 577 per Griffiths CJ; Brennan v Permanent Trustee Company of New South Wales Ltd (1945) 73 CLR 404 at 409–11; BC4500012 per Rich J; Re Crocombe (deceased) [1949] SASR 302 at 306 per Mayo J (distinguishing ‘canons of construction’ from rules of law); Re Henderson’s Trusts [1969] 3 All ER 769 at 771 per Harman LJ. See 8.4–8.22. See 8.23–8.35. See 8.36–8.46. See 8.47–8.66. See 8.67–8.77. [1943] AC 399 at 420. Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26; BC201105711; Fielder v Burgess [2014] SASC 98; BC201406394 at [43] per Kourakis CJ. Marley v Rawlings [2015] AC 129; [2014] UKSC 2 at [20] per Lord Neuberger, with whom Lords Clarke, Sumption and Carnwath agreed. Marley v Rawlings [2015] AC 129; [2014] UKSC 2 at [21] per Lord Neuberger, with whom Lords Clarke, Sumption and Carnwath agreed. As to privileged wills, see 4.21–4.29. See 8.36–8.46. See, for example, Scale v Rawlins [1892] AC 342. Re Harcourt [1932] 1 Ch 491 at 503 per Lord Sterndale MR (‘the problem is to discover the testator’s intention by interpreting the words he has used in the circumstances existing at the time of his will and not by guessing at what he would have wished or what words he would have used if he had foreseen the facts as they now appear’). Abbott v Middleton (1858) 7 HLC 68 at 114; 11 ER 28 at 46 per Lord Wensleydale (‘The use of the expression that the intention of the testator is to be the guide, unaccompanied with the constant explanation, that it is to be sought in his words, and a rigorous attention to them, is apt to lead the mind insensibly to speculate upon what the testator may be supposed to have intended to do, instead of strictly attending to the true question, which is, what that which he has written means’). (1922) 31 CLR 268 at 273–4; BC2200004 (emphasis in original). See also Crumpe v Crumpe [1900] AC 127 at 132 per Lord Macnaghten (‘The whole instrument must of course be read together’). See, for example, King v Perpetual Trustee Company (Ltd) (1955) 94 CLR 70 at 77; BC5500320 (FC). See, for example, Towns v Wentworth (1858) 11 Moo PC 526; 14 ER 794. Abbott v Middleton (1858) 7 HLC 68 at 114; 11 ER 28 at 46 per Lord Wensleydale (‘in construing that writing the rule is to read it in the ordinary and grammatical sense of the words’); Allgood v Blake (1873) LR 8 Exch 160 at 163 per Blackburn J (‘in trying to get at the intention of the testator, we are to take the whole of the will, construe it altogether, and give the words their natural meaning’). There is unanimous support for this principle in Australian law: see, for example, Re

27. 28. 29. 30. 31. 32. 33. 34.

35. 36. 37.

38.

39.

40.

Crocombe (deceased) [1949] SASR 302 at 306 per Mayo J; Re Edwards (deceased) [1964] VR 551 at 553 per Kaye J; Re Rowlands (deceased) [1973] VR 225; Re Cuthbertson [1979] Tas SR 93; Westmore v Westmore (2009) 26 VR 579; [2009] VSC 624; BC200911731; Public Trustee of Queensland v Smith [2009] 1 Qd R 26; [2008] QSC 339; BC200811481; Re Blake (2009) 25 VR 27; [2009] VSC 184; BC200903788. Theobald, p 312. See 8.10, 8.11. [1962] Ch 226 at 245. Bird v Luckie (1850) 8 Hare 301 at 306; 68 ER 375 at 378 per Wigram VC. This explains why mere idiosyncrasy does not deny testamentary capacity: see 2.2. Re Doland’s Will Trusts [1970] Ch 267 at 272 per Buckley J. As to applications under the family provision statutes, see Chapter 17. See, for example, Lutheran Church of South Australia District Inc v Farmers Co-Operative Executors and Trustee Ltd (1970) 121 CLR 628; BC7000330 (involving a gift of ‘Commonwealth Bonds’; Barwick CJ and Windeyer J ruled that evidence that the testatrix in her lifetime used the words ‘bonds’ to describe her holdings in Commonwealth loans was admissible to explain the meaning of the words used in the will). Seale-Hayne v Jodrell [1891] AC 304 at 305 per Lord Herschell LC; Re Ashton [1892] P 83 at 87–8 per Jeune J; Re Rowlands (deceased) [1973] VR 225 at 232–3 per Menhennitt J. Re Cook [1948] Ch 212 at 216 per Harman J. See, for example, Re Kiddle (1905) 92 LT 724 (‘grandchild’ as daughter of testator’s illegitimate son); In the Will of Moyle (deceased) [1920] VLR 147 (‘daughter’ as stepdaughter); Walker v Landenberger (1937) 37 SR (NSW) 201 (‘children’ as illegitimate children); Re Davidson (deceased) [1949] Ch 670 (involving testamentary gifts by a testatrix, who had no grandchildren of her own, to the named son and granddaughter of her husband by his first wife, describing them as ‘my son’ and ‘my granddaughter’, with the residuary estate to be held on trust for ‘my grandchildren’; in these circumstances, Roxburgh J concluded that ‘the testatrix has, in my view, plainly used the word “grandchildren” in a sense quite peculiar to herself but clearly indicated in her will’: at 675); McNamara v Fleming [1963] VR 17 (evidence revealed that the testator intended to draw no distinction between his stepchildren and his own children); Re Estate of Nies (deceased) [2014] SASC 93 at [10] per Gray J (‘children’ construed to refer to stepchildren). Cf Re Rowlands (deceased) [1973] VR 225 (where Menhennitt J found that a de facto adopted child did not, in the circumstances, fall within the phrase ‘child or children’ in the will). See, for example, Re Jodrell (1889) 44 Ch D 590 (where the testator gave his residuary estate to a number of persons, whom he described as his cousins and nieces, who it transpired were illegitimate relations and nieces of his wife respectively; the English Court of Appeal, in a finding upheld on appeal (Seale-Hayne v Jodrell [1891] AC 304), ruled that all were entitled because the testator had made his own dictionary and intended by the gift to include those whom he had, wrongly as a matter of law, described as cousins and nieces). As to the meaning of ‘relations’, see further Haines, pp 170–1. [1968] Ch 39 at 47. See also Re Hodgson [1936] Ch 203 at 206 per Farwell J (‘the Court is not entitled to disregard the language which the testator has used in order to give effect to what the Court may think to have been the intention, but the Court is entitled to say that the words which the testator has used were not intended to have their primary meaning if the surrounding circumstances are such as to lead inevitably to that conclusion’). See 8.39–8.41.

41. 42. 43. 44. 45.

46.

47.

48.

49.

50. 51.

[1929] 2 Ch 112. (2001) 10 Tas R 186; [2001] TASSC 64; BC200103007. See 8.4, 8.5. [1972] 2 All ER 639. [1943] AC 399 at 406. See also at 414–15 per Lord Atkin, at 417–18 per Lord Thankerton; Re Skillen [1916] 1 Ch 518 at 521 per Sargant J (‘a comparatively slight context one way or the other may either restrict the term “money” within comparatively narrow limits or may assist it so as clearly to include the whole personal estate or the residue of the personal estate’); Haines, pp 121–4. See, for example, Re Taylor [1923] 1 Ch 99 (where the English Court of Appeal found that the term ‘money’, construed in the context of the will as a whole, had a meaning broader than its strict sense, and included all the testator’s invested capital: see at 105–6 per Lord Sterndale MR, at 108–9 per Warrington LJ); Re Trundle (deceased) [1960] 1 WLR 1388 (where Cross J considered that a reference by a testator to ‘my money in the bank’ not only included a credit balance that the testator had in the relevant bank account but also any uncashed travellers’ cheques he bought from the bank with part of that credit balance: at 1391–2). Cf Re Hodgson [1936] Ch 203 (where Farwell J was unable to attribute to the term ‘money’ in the relevant will other than its primary meaning). See, for example, Re Ledger [1983] 1 Qd R 176 (where McPherson J held that an amount to the deceased’s credit with a Building Society fell within the definition of ‘cash’); Yu v Yu [2015] QSC 373; BC201513287 (where Ann Lyons J held that the deceased intended the word ‘cash’ to comprise the money from his bank accounts, the word having been used in ‘close proximity’ to the specific bank accounts in question: at [27], [28]). See, for example, Re Ledger [1983] 1 Qd R 176 (where McPherson J held that the surrender values of life insurance policies did not fall within the description of ‘cash’ because ‘[i]t is by no means clear from the material that the policies have been surrendered, but, if they have been, they were certainly not surrendered at her death even if they may then have had a surrender value’: at 177); Yu v Yu [2015] QSC 373; BC201513287 (where Ann Lyons J held that the deceased’s superannuation, death benefits and/or employee benefits were not intended to constitute ‘cash’ pursuant to the deceased’s will; her Honour reasoned that as the deceased had been employed in the public sector for only a brief time (under 2 years), it was ‘most likely that he was not aware that, on his death, there could be [a death benefit] amount in the order of $259,000 paid to his estate as a death benefit’ (at [24]), and that had he known that such a benefit could be paid to him, he would have made a specific reference to it in his will: at [25]; also, as the superannuation moneys and employment benefits were not cash at the time that the deceased wrote the will, and were not ever held in any bank account of the deceased, they were not ‘cash’ for the purposes of the will). See, for example, Public Trustee of Queensland v Stibbe [2012] QSC 357; BC201210997 (where Ann Lyons J held that the deceased’s unit investments, while they could be considered as money, did not come within the reference to ‘cash in my bank account’ in the deceased’s will). Case law suggesting that ‘cash in any bank account’ does not encompass deposits in building society accounts (see, for example, Re Plant [1974] Qd R 203) is unlikely to be followed nowadays in view of the common treatment of deposit-taking institutions (and indeed, even independent of this: see, for example, Re Ledger [1983] 1 Qd R 176). See, for example, Re Pearse (deceased) [1946] SASR 118; Re O’Mullane [1955] VLR 217; In the Estate of Hannah Raw Ward (deceased) [1957] SASR 125 at 127 per Ross J; Re Alleyn (deceased) [1965] SASR 22 at 29 per Hogarth J; Kruize v Cheung [2008] QSC 156; BC200806685. (1970) 121 CLR 628; BC7000330. Re McIlrath (deceased) [1959] VR 720 at 724 (FC). See, for example, Re Cook [1948] Ch 212 (involving a residuary gift of ‘all my personal estate’, Harman J ruled that those words are ‘so well-

52. 53. 54.

55.

56.

57. 58. 59.

60. 61. 62. 63.

64.

known to lawyers that it must take a very strong context to make them include real estate’, and in the circumstances supposed that the testator used the term ‘personal estate’ in its ordinary meaning ‘as a term of art’: at 216); Woodgate v Tanks [2014] 1 Qd R 481; [2013] QSC 204; BC201311778 at [26] per Margaret Wilson J (noting that the phrase ‘tenants in common’ is a legal term, signifying the nature of the ownership that a person or persons have in property). [1921] Ch 491 at 503. See, for example, Re Cook [1948] Ch 212. Hare v Robarts (1859) 7 HLC 429 at 504–5; 11 ER 172 at 201–2 per Lord St Leonards (‘when we come, as lawyers, to look at a technically drawn will, we are asked … not to introduce our own mode of thought into this will. That is to ask those who have to decide this case to divest themselves of their knowledge; to request them to unlearn all that they may have learnt of law. But, I say, this cannot be done, and you ought not so to divest yourself of your knowledge; you have to decide upon the technical will according to the meaning of technical terms’); Royal Society for the Prevention of Cruelty to Animals v Sharp [2011] 1 WLR 980; [2010] EWCA Civ 1474 at [22] per Patten LJ (‘The first relevant consideration in my view is that the will was professionally drafted by a solicitor who has to be assumed to be competent. Although solicitors do obviously make mistakes, there needs to be something in the language of the document or its admissible background to justify that inference. More importantly, those factors must be such as to permit the court to give the words actually used a meaning which is not strictly in accordance with the usual rules of grammar or vocabulary’). Hare v Robarts (1859) 7 HLC 429 at 504; 11 ER 172 at 201 per Lord St Leonards (‘If the will is drawn by an illiterate man, by a country schoolmaster, and you find attempts every now and then to use technical words in an absurd and improper sense, you know at once that the testator has not had good counsel, and you give a reasonable construction in order to carry out his intention, although it may be obscurely expressed’); Re Crocombe (deceased) [1949] SASR 302 at 305 per Mayo J. Re Taylor [1923] 1 Ch 99 at 105 per Lord Sterndale MR. See, for example, Eccles v Salvation Army [2013] WASC 142; BC201302282 (involving an overly general and imprecise description of beneficiaries). As to the dictionary principle, see 8.8, 8.9. See 8.10. Re Harcourt [1921] 2 Ch 491 at 503 per Lord Sterndale MR (‘when a testator has used words which have acquired a definite meaning in conveyancing and have for a long time been used in the drafting of wills and settlements and other like documents with that meaning, it requires a very strong case to justify their interpretation in a different sense’). (1842) 9 Cl & Fin 355; 8 ER 450. [1949] Ch 99. Re Gillson (deceased) [1949] Ch 99 at 104 per Somervell LJ, at 106 per Evershed LJ. Key v Key (1853) 4 De GM & G 73 at 84–5; 43 ER 435 at 439 per Knight Bruce LJ (‘In common with all men, I must acknowledge that there are many cases upon the construction of documents in which the spirit is strong enough to overcome the letter; cases in which it is impossible for a reasonable being, upon a careful perusal of an instrument, not to be satisfied from its contents that a literal, a strict, or an ordinary interpretation given to particular passages, would disappoint and defeat the intention with which the instrument, read as a whole, persuades and convinces him that it was framed. A man so convinced is authorized and bound to construe the writing accordingly’). (1966) 113 CLR 353 at 357; BC6600200. See also Eden v Wilson (1852) 4 HLC 257 at 284; 10 ER 461 at 471 per Lord St Leonards LC (‘You are never unnecessarily to introduce or interpolate words in a will … without an absolute necessity, by intention declared or evinced in some other part of the

65. 66.

67. 68.

69. 70. 71. 72.

73.

74.

75. 76. 77.

78. 79.

will’); Re Crocombe (deceased) [1949] SASR 302 at 305 per Mayo J (‘Additions must not be read into the text in the absence of indication showing the propriety of such interpolation’); Re Whitrick (deceased) [1957] 2 All ER 467 at 469 per Jenkins LJ (‘The reading of words into a will as a matter of necessary implication is a measure which any court of construction should apply with the greatest caution ... The court cannot rewrite the testamentary provisions in wills which come before it for construction. This type of treatment of an imperfect will is only legitimate where the court can collect from the four corners of the document that something has been omitted and, further, collect with sufficient precision the nature of the omission’). (1922) 31 CLR 268; BC2200004. Compare cases where the evidence has proven sufficient to justify the said implication (see, for example, Re Redfern (1877) 6 Ch D 133; Re Smith [1948] Ch 49; Re Whitrick (deceased) [1957] 2 All ER 467; Re Whelan (deceased) [1961] VR 706 at 709–10 per Sholl J; Re Doland’s Will Trusts [1970] Ch 267 at 273–4 per Buckley J; McClymont v Hooper (1973) 128 CLR 147) with those in which there was insufficient indication in the terms of the will (see, for example, Re Andrews (deceased) (1936) 56 CLR 1; BC3700073; Re Follett (deceased) [1955] 2 All ER 22; Betts v Conolly (1970) 120 CLR 417; BC7000240). As to the rectification of wills, see 2.62–2.77. (1858) 11 Moo PC 526 at 543; 14 ER 794 at 800. See also Gale v Gale (1914) 18 CLR 560 at 566–7; BC1400025 per Isaacs J (dissenting but not on this point); Fell v Fell (1922) 31 CLR 268 at 274; BC2200004 per Isaacs J. (1905) 3 CLR 344; BC0500020. See Haines, pp 78–80. [1960] NSWR 498. See, for example, Reinhard v Bell [2015] NSWSC 818; BC201505585 (where the will provided life interests in realty to go to the deceased’s children and, upon the children’s death, rents and profits to ultimately benefit those of them living ‘of’ children of those who might then be dead until the distribution period expired; Darke J held that the word ‘of’ was used in error, and that the passage should be read with ‘or’ used instead). See, for example, NSW Trustee and Guardian v Hirsch (2013) 11 ASTLR 479; [2013] NSWSC 1397; BC201313165 (where the deceased’s informal will left his estate to named beneficiaries and charitable organisations, and added that ‘[a]lthough [the respondent] will not be left my house and the bulk of my estate there must be still an alternative beneficiary and this is ...’; as the phrase ‘will not be left’ was inconsistent with other parts of will, which indicated intention to leave the respondent the residue of the estate, White J replaced it with the word ‘now’: at [21]). Towns v Wentworth (1858) 11 Moo PC 526 at 550–1; 14 ER 794 at 803 per the Right Hon T Pemberton Leigh; In the Will of Barnett (deceased) [1919] VLR 524 at 527–8 per Irvine CJ, at 530 per Cussen J; Tatham v Huxtable (1950) 81 CLR 639 at 651; BC5000510 per Kitto J. (2005) 11 VR 504; [2005] VSCA 73; BC200501836. Playoust v Hornsby (2005) 11 VR 504; [2005] VSCA 73; BC200501836 at [24] per the court. See, for example, Sanford v Raikes (1816) 1 Mer 646 at 651; 35 ER 808 at 810 per Grant MR (‘It is from the words, and from the context, not from the punctuation, that the sense must be collected’); Gordon v Gordon (1871) LR 5 HL 254 at 276 per Lord Westbury. Re Crocombe (deceased) [1949] SASR 302 at 305 per Mayo J. See further Haines, pp 48–9. See, for example, Houston v Burns [1918] AC 337 (involving a bequest for ‘public, benevolent, or charitable purposes’, the House of Lords ruling that those words were to be read disjunctively, and that for this purpose the punctuation of the clause might be regarded: at 341–2 per Lord Finlay LC,

80. 81. 82. 83. 84. 85.

86. 87. 88. 89. 90.

91. 92. 93. 94. 95. 96. 97. 98.

99. 100. 101. 102. 103. 104.

at 344–5 per Lord Atkinson, at 348 per Lord Shaw (who noted that as ‘[p]unctuation is a rational part of English composition, and is sometimes quite significantly employed’, there was ‘no reason for depriving legal documents of such significance as attaches to punctuation in other writings’)); Russell v Perpetual Trustee Co (Ltd) (1956) 95 CLR 389 at 397; BC5600400 per Dixon CJ and Williams J (emphasising the need to construe words in brackets in the context of the will as a whole; as to brackets see further Morrall v Sutton (1845) 1 Ph 533; 41 ER 735). Cf Sammut v Manzi [2009] 2 All ER 234; [2008] UKPC 58 at [8] per Lord Phillips (who did not consider it safe in the case in issue to attach significance to ‘the formatting achieved by a word processor that may well have been operated by a secretary’). See, for example, Spurling v Broadhurst [2012] WTLR 1813; [2012] EWHC 2883 (Ch) at [44] per Hildyard J. See 11.17, 11.18. Lightfoot v Maybery [1914] AC 782 at 802 per Lord Shaw (dernier resort meaning last resort). See further 9.3–9.5. (1922) 31 CLR 268; BC2200004. See 8.16. Fell v Fell (1922) 31 CLR 268 at 279; BC2200004. See also Re Houlgrave (deceased) (1979) 23 SASR 107 at 114 per Matheson J; Re Loweke [1995] 1 Qd R 615; Hopwood v Cuthbertson (2001) 10 Tas R 186; [2001] TASSC 64; BC200103007; In Estate of Tkaczuk (deceased) (2004) 90 SASR 515; [2004] SASC 413; BC200408518. See 8.4. See, for example, In the Estate of Last (deceased) [1958] P 137; In Estate of Tkaczuk (deceased) (2004) 90 SASR 515; [2004] SASC 413; BC200408518 at [19]–[21] per Duggan J. Langston v Langston (1834) 2 Cl & F 194 at 243; 6 ER 1128 at 1147 per Lord Brougham LC. See 8.16–8.20. See, for example, Carroll v Perpetual Trustee Co Ltd (1916) 22 CLR 423; BC1690126; Fell v Fell (1922) 31 CLR 268; BC2200004; Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1; BC3400032. See generally Haines, pp 134–6; Theobald, pp 479–86. See 8.37–8.45. See, for example, Re Gard (deceased) [1965] SASR 244; Re McBean (deceased) (1973) 7 SASR 579. (1715) 1 P Wms 286; 24 ER 391. [1955] VLR 217. (1909) 10 SR (NSW) 67. [1944] Ch 186. Cf Cowen v Truefitt [1899] 2 Ch 309 (where the falsa demonstratio principle was found not to apply against the backdrop of a common mistake); Re Lewis’s Will Trusts [1984] 3 All ER 930 (where Scott J refused to rewrite the testator’s will, which bequeathed ‘my freehold farm’, to reflect the fact that the farm was owned by a company in which the testator held three-quarters of the issued shares). (1860) 1 John & H 250; 70 ER 740. Wrightson v Calvert (1860) 1 John & H 250 at 252; 70 ER 740 at 741. See also Morrell v Fisher (1849) 4 Ex 591; 154 ER 1350. Lyndon v Standbridge (1857) 2 H & N 45 at 51; 157 ER 19 at 22 per Pollock CB. [1965] SASR 22 at 24–6. See, for example, Hodgson v Jex (1876) 2 Ch D 122 at 123 per Jessel MR. See, for example, Re Seton-Smith [1902] 1 Ch 717; Re Smith (deceased) [1956] NZLR 841; Re Collins’

105.

106.

107.

108. 109. 110.

111. 112. 113. 114. 115. 116. 117. 118. 119.

Settlement Trusts [1971] 1 All ER 283; Re Cuthbertson [1979] Tas SR 93 (which contains a discussion of the meaning of ‘effects’ and ‘personal effects’ generally: see at 96–9 per Green CJ; as to the meaning of ‘personal effects’ see further Lowe v Lowe [2015] NSWSC 48; BC201500474 at [29] per Brereton J). See further Theobald, pp 503–5. The position may be otherwise if the list is more extensive: see, for example, Re Miller (1889) 61 LT 365 (where North J held that a gift of the testator’s books, wine and artwork, which was followed by the words ‘the rest of the furniture and effects’, did not encompass bank notes, certificates of railway stock and jewellery in the encompassing phrase, which instead fell within the residuary clause of the testator’s will). See, for example, Re Hall (deceased) [1918] VLR 448 (where after various dispositions of property, including a specific devise of a piece of land to one of his brothers, a testator gave to another brother ‘my house and 136 acres of land also about 100 sheep together with horse waggon and harness and all my belongings remaining’; Hood J held that, in order to prevent an intestacy, the words ‘all my belongings remaining’ included realty and were not confined to something equivalent to horses, waggons and sheep: at 450). Cf Re Miller (1889) 61 LT 365 (where no issue of intestacy arose). Cobcroft v Bruce (2013) 9 ASTLR 308; [2013] NSWSC 774; BC201303116 at [23] per Young AJ. See also Green v Harvey (1842) 1 Hare 428 at 431–2; 66 ER 1100 at 1101 per Wigram VC. Not all find this principle compelling: see, for example, G Williams, ‘The Doctrine of Repugnancy’ (1943) 59 LQR 343 at 345–6. See further Haines, pp 228–36. [1957] 1 WLR 493. (1964) 114 CLR 173; BC6400770. See, for example, Public Trustee v Roberts [1966] SASR 269 (where the testator gifted to his wife the matrimonial home and ‘any other property in my name’ but with the direction that ‘any of this property remaining after her decease to be realized and divided equally’ between named charities, Mitchell J held that the widow took a left interest in the testator’s estate). See also Constable v Bull (1849) 3 De G & Sm 411 at 413; 64 ER 539 at 540 per Knight-Bruce VC; In the Estate of Hannah Raw Ward (deceased) [1957] SASR 125 at 127–8 per Ross J (factually similar cases with similar outcomes). A clearer case again is found in Zuvela v Zuvela [2015] WASC 410; BC201510655 (where Tottle J found only a life interest was intended where the testamentary wording was that ‘I leave to [J and V (sons) the Orange Grove Property] — after my death — while they are alive — and after their death it goes to V’s son Paul and to his male children’: at [59]). Cf Cobcroft v Bruce (2013) 9 ASTLR 308; [2013] NSWSC 774; BC201303116 (where the gift was subjected to an equitable personal obligation). Such evidence, in relation to the testator’s intentions, is only admissible in cases of ambiguity or equivocation, and not in cases of inconsistency (subject to statute that may extend the common law principle): see 8.37–8.45. This is sometimes expressed as cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est. Re Potter’s Will Trusts [1944] Ch 70 at 77. See, for example, Re Bywater (1881) 18 Ch D 17. Piper v Piper (1886) 5 NZLR (SC) 135. See, for example, Re Alexander’s Will Trust [1948] 2 All ER 111; Donnolley v Clarke (2008) 1 ASTLR 216; [2008] NSWSC 522; BC200803978. See, for example, Re Gare (deceased) [1952] Ch 80; Re Robertson (deceased) [1966] VR 196. As to lapse, see 7.13–7.15. (1849) 1 Mac & G 551; 41 ER 1379.

120. Hancock v Watson [1902] AC 14 at 22 per Lord Davey. 121. See, for example, Dally v Dally [1954] Tas SR 12; Russell v Perpetual Trustee Co Ltd (1956) 95 CLR 389; BC5600400; Perpetual Trustee Co Ltd v Gilmour [1979] 2 NSWLR 716. See further Haines, pp 236–9; Jacobs, pp 211–12. 122. See 1.3, 2.21, 2.22. 123. As to the requisite mental capacity, see 2.2–2.20. 124. See 8.1. 125. British Columbia Law Institute, Wills, Estates and Succession: A Modern Legal Framework, BCLI Report No 45, June 2006, p 153. 126. Rondel v Robinson Estate (2011) 106 OR (3d) 321; [2011] ONCA 493 at [37] per Juriansz JA. 127. Taken from the judgment of James LJ in Boyes v Cook (1880) 14 Ch D 53 at 56 (‘You may place yourself, so to speak, in his arm-chair, and consider the circumstances by which he was surrounded when he made his will to assist you in arriving at his intention’). See also the earlier remarks of Lord Blackburn in River Wear Commissioners v Adamson (1877) LR 2 App Cas 743 at 764 (‘In the case of wills the testator is speaking of and concerning all his affairs; and therefore evidence is admissible to show all that he knew, and then the Court has to say what is the intention indicated by the words when used with reference to these extrinsic facts, for the same words used in two wills may express one intention when used with reference to the state of one testator’s affairs and family, and quite a different one when used with reference to the state of the other testator’s affairs and family’). 128. As to equitable ademption, see 7.81–7.88. 129. As to the doctrine of satisfaction, see 7.71–7.80. 130. Perrin v Morgan [1943] AC 399 at 420 per Lord Romer. 131. Allgood v Blake (1873) LR 8 Ex 160 at 162 per Blackburn J. See also Perrin v Morgan [1943] AC 399 at 414 per Lord Atkin (‘the construing court has to ascertain what was meant, being guided by the other provisions of the will and the other relevant circumstances, including the age and education of the testator, his relations to the beneficiary chosen, whether of kinship or friendship, the provisions of other beneficiaries, and other admissible circumstances. Weighing all these, the court must adopt what appears the most probable meaning’); King v Perpetual Trustee Co (Ltd) (1955) 94 CLR 70 at 78; BC5500320 (FC). 132. (1874) LR 7 HL 364. See also Re Jackson [1933] Ch 237 (testamentary gift to ‘my nephew Arthur Murphy’ where the testator had three nephews named Arthur Murphy, two of whom were legitimate sons of two of her brothers and the other an illegitimate son of a sister; Farwell J found that, by resort to evidence as to the family, the testator intended that the illegitimate nephew should take a share of the residuary estate). 133. See, for example, Beaumont v Fell (1723) 2 P Wms 141; 24 ER 673 (where both the christian name and surname of a legatee were mistaken but the legacy was, in view of evidence as to how the mistake arose, held good); Re Alleyn (deceased) [1965] SASR 22 (where Hogarth J ruled that a gift to ‘Miss Doris Walters 121 William St Norwood (Meals on Wheels)’ was intended to refer to Miss Doris Taylor of that address, who was associated with the Meals on Wheels association); Re Edwards (deceased) [1981] VR 794 (where Kaye J found that the testator’s bequest to ‘my sister Maggie Evans absolutely but if she predeceases me … to my said sister’s son Evan Evans absolutely’ took effect in favour of the sister’s surviving son, whose name was Gwilym Roberts). 134. Re Edwards (deceased) [1981] VR 794 at 797 per Kaye J. 135. See, for example, Hendry v Perpetual Executors & Trustees Association of Australia Ltd (1961) 106 CLR 256; BC6100180 (where the testator, who was a member of a partnership that owned real estate and livestock, by his will, left ‘all my real estate’ to A and ‘all my livestock’ to B; Taylor and Menzies JJ held that, properly construed, the will amounted to a disposition of the testator’s partnership assets:

136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159. 160. 161. 162. 163.

at 266); Re Bowcock (deceased) [1968] 2 NSWR 697 (where the testator purported to devise his property known as Kelvinside to his son, although the property was owned by a company in which the testator held the beneficial interest, Else-Mitchell J held that the manifest intention of the testator could readily be given effect having regard to the fact that the testator, and hence his executors, controlled the beneficial interests in the shares in the company that owned the property); Ireland v Retallack (2011) 6 ASTLR 585; [2011] NSWSC 846; BC201106193 at [10]–[16] per Pembroke J (gift of property not owned by testator but owned by company in which the testator held 99.9 per cent of the shares). See, for example, Re Alexander’s Will Trust [1948] 2 All ER 111 (involving descriptions of items of jewellery). Perrin v Morgan [1943] AC 399 at 420 per Lord Romer. [1915] AC 207. National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children [1915] AC 207 at 212–13. See also Higgins v Dawson [1902] AC 1. [1929] 2 Ch 112. See 8.11. [1925] NZLR 280. See Theobald, pp 289–93. Re Bruce Estate (1998) 24 ETR (2d) 44 at [17] per Vertes J (SC(Yuk)). Doe d Hiscocks v Hiscocks (1839) 5 M & W 363 at 368–9; 151 ER 154 at 156. See also Lubke v Claridge [2016] TASSC 44; BC201610083 at [10] per Brett J. If not, the gift will fail for uncertainty: see 8.46. (1836) 2 M & W 129; 150 ER 698. See also Re Ofner [1909] 1 Ch 60; Public Trustee of New South Wales v Herbert [2009] NSWSC 366; BC200903582. See, for example, Re Bennet (deceased) [1957] VR 113 (where extrinsic evidence was admitted to show that a gift of ‘shares held by me’ included shares in which the testator had equitable ownership). See, for example, Re Jackson [1933] Ch 237. Law Reform Committee, Nineteenth Report — Interpretation of Wills, May 1973, HMSO, Cmnd 5301, pp 15–19. Administration of Justice Act 1982 (UK) s 21, as to which see Theobald, pp 284–7. ACT s 12B; NSW s 32; NT s 31; Qld s 33C; Tas s 46; Vic s 36; WA s 28A. See, for example, VLRC, 1994, pp 129–33; QLRC, MP 29, pp 67–73. Wills Act 2007 (NZ) s 32. ACT s 12B; NSW s 32(1); NT s 31(1); Qld s 33C(1); Tas s 46(1); Vic s 36(1); WA s 28A(1). ACT s 12B; NSW s 32(2); NT s 31(2); Qld s 33C(2); Tas s 46(2); Vic s 36(2); WA s 28A(2). NSW s 32(3); NT s 31(3); Qld s 33C(3); Tas s 46(3); Vic s 36(3); WA s 28A(3). As to the equitable doctrine of satisfaction, see 7.71–7.80. Public Trustee of Queensland v Smith [2009] 1 Qd R 26; [2008] QSC 339; BC200811481 at [20]–[26] per Atkinson J; Lubke v Claridge [2016] TASSC 44; BC201610083 at [10] per Brett J. See, for example, Re Williams (deceased) [1985] 1 All ER 964; Re Harrison (deceased) [2006] 1 All ER 858; [2005] EWHC 2957 (Ch). QLRC, MP 29, p 71 (‘The object of all the provisions is to extend the admissibility of evidence of the testator’s actual intention, which is allowed where the wording of the will is found to be equivocal, to cases where the wording is found to be merely ambiguous’). See, for example, Lubke v Claridge [2016] TASSC 44; BC201610083 at [10] per Brett J. ACT s 12B(c); Vic s 36(1)(c). The New Zealand legislation follows this model: Wills Act 2007 (NZ) s 32(1).

164. QLRC, MP 29, p 71 (describing the extension of the provision to include uncertainty as well as ambiguity as ‘not insignificant’, but did not recommend the National Uniform Bill include the words ‘or uncertain’, fearing that this would be ‘likely to lead to an increase in legal argument as to the scope of the provision, without providing any significant benefit’). 165. See, for example, Perpetual Trustee Co Ltd v Gilmour [1979] 2 NSWLR 716. 166. See, for example, Peck v Halsey (1726) 2 P Wms 387; 24 ER 780 (gift of some of the testator’s best linen held void for uncertainty); Re Sutherland [1909] VLR 223. 167. See, for example, In the Estate of Banks (deceased) [1966] SASR 290 (where the direction that the relevant property ‘remain in the famely [sic]’ was held to be void for uncertainty). Cf Theobald, pp 560–2 (as to the meaning of ‘family’). 168. See 8.67–8.70. 169. [1904] AC 228. 170. (1918) 118 LT 435. 171. See G E Dal Pont, Law of Charity, 2nd ed, LexisNexis Butterworths, Australia, 2017, pp 214–15. 172. See 8.60. 173. Hibbert v Hibbert (1873) LR 15 Eq 372. See further Haines, pp 165–6. 174. Lynneberg v Kildahl [1948] NZLR 207 at 209 per Gresson J. See, for example, Ward v Van der Loeff [1924] AC 653 at 665 per Viscount Cave (where ‘such a child, being a brother or sister of the halfblood, would come within the expression “my brothers and sisters” in the testator’s will’), at 672 per Lord Phillimore (‘there was in this case no physical impossibility in there being further brothers and sisters of the half-blood, and the words of the testator according to the accepted rules of construction are wide enough to include such brothers and sisters’). 175. See, for example, Ralph v Carrick (1879) 11 Ch D 873; Matthews v Williams (1941) 65 CLR 639 at 650–1; BC4300042 per Rich ACJ, Dixon and McTiernan JJ; Buick v Equity Trustees Executors & Agency Co Ltd (1957) 97 CLR 599 at 603; BC5700600 per Dixon CJ (ruling that ‘issue’ in the will in question meant all lineal descendants and not simply grandchildren of the testator); Perpetual Trustee Co Ltd v McKendrick [1973] 2 NSWLR 784 at 788–92 per Mahoney J; Peoples v Simpson [2005] NSWSC 355; BC200502351; Public Trustee v Loney [2009] SASC 17; BC200900680 at [26]–[34] per Sulan J. See further Haines, pp 178–83; Theobald, pp 553–6. Cf Edmonds v Morrissey [2016] NSWSC 342; BC201602070 (where the term ‘issue children’ was held to exhibit an intention to narrow the usual meaning of the term ‘issue’, namely an intention to benefit certain of the deceased’s children and grandchildren only, and not remoter issue). 176. Re Thurlow (deceased) [1972] Ch 379 (where Pennycuick VC held that the word ‘descendants’ is ‘totally incapable of referring to collateral relations’, as its ordinary meaning is ‘issue’ and nothing else: at 382). See further Theobald, pp 556–7. 177. Antill-Pockley v Perpetual Trustee Co Ltd (1974) 132 CLR 140 at 143 per McTiernan ACJ, at 146 per Gibbs J; BC7400061. See further Haines, pp 184–6; Theobald, pp 566–73. 178. Such as, say, where the testator has in fact no blood relations (see, for example, Hogg v Cook (1863) 32 Beav 641; 55 ER 252), or where the will itself can otherwise be legitimately construed as extending beyond the ordinary meaning of ‘issue’ or ‘descendants’ (see, for example, Best v Stonehewer (1865) 2 De GJ & S 537; 46 ER 484) or more confined than its ordinary meaning (see, for example, Re Dougharty [1935] VLR 333 at 340–1 per Mann J). Cf Public Trustee v Loney [2009] SASC 17; BC200900680 at [19]–[25] per Sulan J. 179. Pulleng v Public Trustee [1922] NZLR 1022 at 1027–8 per Reed J. 180. Seelander v Rechner (1884) 18 SALR 82; Re Smith (1887) 35 Ch D 558 at 560 per Kay J (‘if on the face of the will the testator shews an intention to use the word “children” in its normal and ordinary

181. 182. 183.

184. 185. 186.

187.

188. 189. 190.

191. 192. 193. 194. 195.

meaning, by himself having mentioned “grandchildren,” as well as “children,” there, again, the Court feels itself obliged to read the word “children” in its ordinary sense’). The relationship of the child to a step-parent is not one of consanguinity but rather affinity: R v Cook (1985) 156 CLR 249 at 262–4; BC8501105 per Deane J. See, for example, Thomson v Down [2012] QSC 171; BC201204477 (gift to ‘all my children’ held not to include stepchildren). See, for example, Re Jeans (1895) 72 LT 835 (where North J construed a gift by the testator to his ‘children’ in favour of the testator’s stepchildren in view of the fact that the testator had no natural children whereas his wife did); Re Davidson (deceased) [1949] Ch 670 (where the testator’s stepson was described in the will as ‘my son’, Roxburgh J held that the stepson’s children could take under a bequest to ‘grandchildren’); Re the Will of Ahchay (1996) 6 Tas R 369; BC9700451 (where the testator had no children of his own but his wife had seven children, three of whom the testator had raised and treated as his own, Slicer J ruled that the three children raised by the testator were entitled); Re Estate of Warren [2001] NSWSC 104; BC200100609 (where Davies AJ held that a residuary bequest made to ‘children’ extended to one of the testator’s stepchildren, but not another (who was estranged), because the testator referred to the former as ‘my son’ in the will); Re Estate of Nies (deceased) [2014] SASC 93 (where Gray J construed a gift to ‘my children’ to refer to the deceased’s ‘stepchildren’, as the evidence showed that at the time of making the will the deceased had no children of his own but treated his stepchildren as his own); Warton v Yeo [2015] NSWCA 115; BC201503555 (involving a bequest to the testator’s sister (A), with a gift over in terms that should A ‘die before me then to such one of her children as shall survive me’; Ward JA held that the word ‘children’ here included A’s stepchildren, in view of evidence that the testator was close to A and was aware of her family circumstances, including that the four stepchildren had been brought up as part of A’s family unit for more than 30 years). Hill v Crook (1873) LR 6 HL 265; Dorin v Dorin (1875) LR 7 HL 568. See further Theobald, pp 583– 93. See, for example, Re Loveland [1906] 1 Ch 542 at 547–8 per Swinfen Eady J; Re Te Huango [1993] 3 NZLR 77 at 83–4 per Heron J. Hill v Crook (1873) LR 6 HL 265 at 282–3 per Lord Cairns; Re Jeans (1895) 72 LT 835 at 836 per North J; Re Rowlands (deceased) [1973] VR 225 at 232–3 per Menhennitt J; Harris v Ashdown (1985) 3 NSWLR 193 at 196–8 per Kirby P. Parentage Act 2004 (ACT) ss 38, 39(6); Wills Act 1968 (ACT) s 31A; Status of Children Act 1996 (NSW) ss 5, 6; Status of Children Act 1978 (NT) s 4; Status of Children Act 1978 (Qld) s 6; Family Relationships Act 1975 (SA) s 6; Status of Children Act 1974 (Tas) ss 3, 4; Status of Children Act 1974 (Vic) ss 3, 4; Wills Act 1970 (WA) s 31. Popple v Rowe [1998] 1 VR 651 at 655; BC9701125 per Brooking JA. As to standing to apply for provision generally, see Chapter 16. Adoption Act 1993 (ACT) s 43; Adoption Act 2000 (NSW) s 95; Adoption of Children Act 1994 (NT) s 45; Adoption Act 2009 (Qld) s 214; Adoption Act 1988 (SA) s 9(1); Adoption Act 1988 (Tas) s 50(1); Adoption Act 1984 (Vic) s 53(1); Adoption Act 1994 (WA) s 75(1). See further Haines, pp 153–7. Wesley v Wesley (1998) 71 SASR 1 at 9; BC9800378 per Debelle J. Re Estate of the Late K (1996) 5 Tas R 365 at 369 per Slicer J. Elliot v Joicey [1935] AC 209 at 233 per Lord Russell. Re Bruce [1979] Tas R 110 at 123 per Cosgrove J. Elliot v Joicey [1935] AC 209 at 224 per Lord Russell.

196. NSW s 3(2); Qld s 5A. 197. Family Law Act 1975 (Cth) s 60H; Parentage Act 2004 (ACT) s 11; Status of Children Act 1996 (NSW) s 14; Status of Children Act 1978 (NT) Pt IIIA; Status of Children Act 1978 (Qld) Pt 3 Div 2; Family Relationships Act 1975 (SA) s 10EA; Status of Children Act 1974 (Tas) Pt III; Status of Children Act 1974 (Vic) Pts II, III; Artificial Conception Act 1985 (WA) ss 5–6A. See further Haines, pp 151–2. 198. Re the Estate of Late K (1996) 5 Tas R 365 at 373–4 per Slicer J. 199. Re Devling (deceased) [1955] VLR 238. See generally Theobald, pp 547–8. 200. Jacques v Seton (1960) 103 CLR 511 at 518; BC6000400 per Dixon CJ. 201. See 5.35–5.41. 202. See generally Chapter 9. 203. See Haines, pp 162–3. 204. Re Devling (deceased) [1955] VLR 238 at 239–40 per O’Bryan J. 205. See, for example, Day v Collins [1925] NZLR 280 (discussed at 8.41); Re Smalley [1929] 2 Ch 211 (discussed at 8.11); Layer v Burns Philp Trustee Co Ltd (1986) 6 NSWLR 60. 206. ACT s 28A; NSW s 46. 207. In the Australian Capital Territory, a ‘transgender person’ is a person who has had successful sexual reassignment surgery: see Births, Deaths and Marriages Registration Act 1997 (ACT) Pt 4. In New South Wales see Anti-Discrimination Act 1977 (NSW) Pt 3A. 208. Being extrinsic evidence admitted under ACT s 12B: see 8.44. 209. See, for example, Re Selby (deceased) [1952] VLR 273. 210. Re Michell (deceased) (1971) 2 SASR 312 at 320 per Bray CJ. See further Haines, pp 195–8. 211. Kingsbury v Walter [1901] AC 187 at 192 per Lord Davey. 212. See generally Haines, Ch 19. 213. (1719) 3 Bro CC 401; 29 ER 610. 214. See, for example, Re Edmondson’s Will Trusts [1972] 1 All ER 444. 215. See Crane v Crane (1949) 80 CLR 327 at 335–6; BC4900600 per Dixon J; Re Bleckly (deceased) [1951] Ch 740 at 752 per Jenkins LJ. 216. This is often described as the rule in Viner v Francis (1789) 2 Cox 190; 30 ER 88. 217. Re Selby (deceased) [1952] VLR 273. 218. Hickling v Fair [1899] AC 15 at 35 per Lord Davey; Adams v Perpetual Trustee Co (Ltd) (1964) 114 CLR 527 at 531; BC6400790 per Kitto J; Re De Bruyn [2016] VSC 6 at [23] per McMillan J. 219. Although if one should die, for example, before attaining that age, his or her share is divided amongst the survivors. 220. Adams v Perpetual Trustee Co (Ltd) (1964) 114 CLR 527 at 530, 533; BC6400790 per Kitto J; Re De Bruyn [2016] VSC 6 at [24]–[27] per McMillan J. 221. See 8.48. 222. ACT s 24; NSW s 30; NT s 29; Qld s 33E; SA s 27; Tas s 44; Vic s 34; WA s 26(1)(a). For an account of the history of these provisions, which reflect s 24 of the Wills Act 1837 (UK), see McBride v Hudson (1962) 107 CLR 604 at 614–15; BC6200280 per Dixon J; Haines, pp 109–11. See also Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86; BC201405245 at [66] per David J (who remarked that it is well recognised that the section does ‘not require the will to be construed in every respect as if it were made on the day of the testator’s death’; the section ‘requires only that a will be construed as to the property comprised in it as at the death of the testator. It has no application beyond that’). 223. As to the doctrine of ademption in this context, see 7.23–7.41.

224. See, for example, Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86; BC201405245 (where the will gave the first defendant (D) a stated residence ‘until [D] has been working and/or employed on a full time basis for a continual period of three [3] years’; David J ruled the employment period was to commence from the date of the deceased’s death, not the date of the will, in view of both the language in question (which spoke of being ‘as at the time of my death’ and ‘as at my death’) and evidence adduced from D that provided context to the time period in issue). 225. McBride v Hudson (1962) 107 CLR 604 at 629–30; BC6200280 per Windeyer J. See, for example, Re Sikes [1927] 1 Ch 364 (where the testator’s will contained a bequest of ‘my piano’, which at the time of the will was a piano converted into a ‘player’ piano, but was replaced shortly thereafter with a much more expensive piano known as an electric motor player piano, which was in her possession when she died; in the brief judgment, containing little in the way of reasoning, Clauson J held that, by the expression ‘my piano’, the testator referred to a particular thing and intended to give the particular piano then in her possession and no other, which therefore represented a contrary intention sufficient to take the bequest out of the operation of the section). Cf In the Will of Smith (deceased) [1916] VLR 540, discussed at 7.30. 226. See Pohlner v Pfeiffer (1964) 112 CLR 52 at 77; BC6400570 per Windeyer J. 227. Re Evans [1909] 1 Ch 784 at 786 per Joyce J (‘When … the description is generic, as “all my lands in the county of X”, the subject of the devise being capable of increase or diminution, all the testator’s lands in the county of X at the date of his death will pass; and where there is such a particularity in the description of the subject of a gift as to shew that it was some object in existence at the date of the will that was intended to pass, it is considered that there is a sufficient evidence of a contrary intention to exclude the application of the provisions’). 228. See Haines, pp 114–15; Theobald, p 476. 229. (1869) LR 8 Eq 229. See also Re Willis [1911] 2 Ch 563 (where the words ‘and in which I now reside’, following a gift of property, were regarded as additional to the description, inaccurate at the date when the will came into operation, and therefore rejected as non-essential to the actual description of the property). 230. See, for example, Re Edwards (1890) 63 LT 481. 231. See 7.23–7.26. 232. [1909] 1 Ch 784. 233. For example, where the will clearly distinguishes the destination of ‘leasehold’ or ‘freehold’ property: see Re Guyton and Rosenberg’s Contract [1901] 2 Ch 591 (where a testator devised ‘all my real estate’ to one person and bequeathed ‘all my leasehold estate’ to others, Cozens-Hardy J ruled that ‘I cannot hold that under the devise of “all my real estate” leaseholds are included, when I find in the same will an express bequest of “all my leasehold estate”’, which he identified as a ‘contrary intention’ appearing by the will: at 593). 234. ACT s 26; NSW s 36; NT s 36; Qld s 33I; SA s 29; Tas s 51; Vic s 40; WA s 26(1)(c). See further Haines, pp 101–3. 235. Rose v Bartlett (1631) Cro Car 292; 79 ER 856. 236. Originally via the Wills Act 1837 (UK) s 26 (as to which see Butler v Butler (1885) 28 Ch D 66; Theobald, p 463), upon which the Australian provisions are based. 237. ACT s 27; NSW s 38; NT s 37; Qld s 33K; SA s 31; Tas s 52(1); Vic s 42; WA s 26(1)(e). 238. See, for example, Wisden v Wisden (1854) 2 Sm & G 396; 65 ER 452. 239. Conveyancing Act 1919 (NSW) s 19A; Law of Property Act 2000 (NT) s 22; Property Law Act 1974 (Qld) s 22; Land Title Act 1980 (Tas) s 113; Property Law Act 1958 (Vic) s 249; Property Law Act 1969 (WA) s 23. See further Haines, pp 104–5. 240. SA s 35.

241. 242. 243. 244. 245. 246.

NT s 41(1); Qld s 33O(1); Tas s 56(1). See 7.11. NSW s 42(1); Vic s 46(1); WA s 26(1)(f). See 7.11. NSW s 42(2); NT s 41(2); Qld s 33P(1); Tas s 56(2); Vic s 46(3); WA s 26(1)(g). See 7.11. As to the nature of powers of appointment, see 2.80. ACT s 26(2), (3); NSW s 37; NT s 35; Qld s 33J; SA s 30; Tas s 50; Vic s 41; WA s 26(1)(d). Special powers of appointment have been held to be excluded from the scope of the section: Re Penrose [1933] Ch 793. As to special powers, see 2.80. 247. Phillips v Cayley (1890) 43 Ch D 222. 248. Boyes v Cook (1880) 14 Ch D 53. 249. See Certoma, p 167.

[page 245]

CHAPTER 9

Intestacy The Concept of Intestacy and Its Implications Determining if there is an intestacy — presumption against intestacy Intestacy rules subject to family provision orders Attempted ouster of intestacy rules by the deceased’s will Taking of intestate’s property under the intestacy rules Vesting upon and following intestate’s death Executor or administrator to hold property on trust for persons entitled Disclaimer of interest under intestacy rules Forfeiture of interest under intestacy rules Effect of disclaimer or forfeiture Concepts of ‘survivorship’ for intestacy rules

9.1 9.3 9.6 9.7 9.9 9.9 9.11 9.12 9.14 9.15 9.16

Distribution of Intestate Estate under the Intestacy Rules Overview of the intestacy rules Observations regarding particular classes of person who take under the intestacy rules Spouses Curtesy and dower obsolete ‘Issue’ Person(s) entitled aged under 18 Relationships of the whole and the half blood Australian Capital Territory Where intestate is survived by a partner Where intestate is not survived by a partner Where intestate survived by both spouse/civil partner and eligible partner New South Wales and Tasmania

9.18 9.18 9.20 9.20 9.22 9.23 9.26 9.28 9.29 9.30 9.31 9.32 9.33

Where a sole surviving spouse Where multiple surviving spouses Distribution among relatives Absence of persons entitled Northern Territory Queensland South Australia Spouses/partners Issue/relatives Victoria Spouses/partners

9.34 9.35 9.36 9.38 9.39 9.44 9.47 9.47 9.48 9.49 9.50 [page 246]

Issue/relatives Western Australia Where no de facto partner involved Where de facto partner involved Rights of Spouses/Partners to Purchase Intestate Dwelling Houses Backdrop The territories and Western Australia Election to appropriate Restrictions on right to appropriate New South Wales and Tasmania Limitation on right of personal representative to sell interest in property Queensland Election to acquire shared home Restriction on right to elect to acquire shared home Acquisition of shared home under election South Australia Election to take dwellinghouse Limitation on right of personal representative to sell interest in dwellinghouse Victoria

9.51 9.52 9.52 9.55 9.56 9.56 9.57 9.57 9.59 9.60 9.62 9.63 9.63 9.65 9.66 9.67 9.67 9.69 9.70

Taking into Account Inter Vivos Gifts

9.72

Indigenous Persons’ Intestate Estates Backdrop Dedicated intestacy rules New South Wales, Northern Territory and Tasmania Queensland

9.76 9.76 9.78 9.78 9.79

Determining the Existence of De Facto Relationship

9.80

The Concept of Intestacy and Its Implications 9.1 The law does not compel a person to make a will, and statistics reveal that, depending on the jurisdiction, between 6 and 14 per cent of persons die without leaving a will.1 Nor does it require that a will dispose the entirety of a testator’s estate. Because of this, statute prescribes what is to occur as to the administration and the distribution of the estate of a person who has no valid will, or whose will, though valid, does not dispose all of the testator’s estate (the latter being sometimes termed a ‘partial intestacy’).2 To this end, it defines an ‘intestate’ as a person who dies without leaving a will, or leaving a will that does not dispose effectively all or part [page 247] of his or her property.3 An ‘intestate estate’ is, where an intestate leaves a will, the property of the intestate that is not effectively disposed of by the will; for an intestate who does not leave a will, it encompasses the property of the intestate.4 9.2 This chapter focuses on the statutory schema for distributing an intestate estate. Elsewhere, under the general discussion of the administration of estates, is discussed the administration of intestate estates.5 The latter are administered by an ‘administrator’ appointed by the court, as opposed to an ‘executor’ who is ordinarily appointed under the deceased’s will. For the purposes of this

chapter, preliminary to addressing the law governing the distribution of intestate estates, it must first be determined whether indeed the deceased’s property is part of an intestate estate. Hence, determining whether the deceased has left a valid will, and the scope of property that any will purports to deal with, crucially inform the relevance and applicability of intestacy rules.

Determining if there is an intestacy — presumption against intestacy 9.3 Where the deceased has left no valid will, this clearly opens the door to the rules of intestacy. But where a testator has made a valid will, the question is whether that document has effectively disposed of the testator’s entire estate. The presence of a ‘residuary estate’ clause — as its title suggests, a clause that directs how the estate remaining after specific bequests and legacies have been made is to be distributed — is a useful vehicle, to this end, to avoid a partial intestacy. But in the absence of such a clause, property that is not within the terms of testamentary disposition falls to be distributed according to the intestacy rules. 9.4 It may not always be clear whether or not the testator has fully disposed of his or her estate. If there remains ambiguity, courts have from early times adopted what is sometimes termed a ‘presumption against intestacy’. It has been judicially remarked that ‘[t]he mind never inclines towards intestacy; it is a dernier resort in the construction of wills’.6 As a result, the ‘the court will lean in favour of a construction which will avoid an intestacy or a partial intestacy’,7 especially in the event of a ‘home-made’8 or informal9 will. It is reasoned that a testator, having gone to the trouble of executing a valid will, should not have his or her property subjected to the intestacy rules unless the court cannot, by the terms of the will, discern an intention to dispose of part of the estate. In Re Estate of Whelan (deceased),10 for example, the final clause of the testator’s informal will directed that ‘the balance’ of his estate be distributed to his three children equally. As the will made no reference to any item of personal property, the issue was whether the word ‘balance’ could encompass the proceeds of the sale of the testator’s personal property. Gray J, applying the presumption against intestacy, determined that it could, reasoning that it

would be unusual ‘for the deceased not to have intended to dispose of his entire estate through his will’.11 Importantly, though, the presumption against intestacy cannot oust the literal meaning of the words used. Especially where the document in question, like a will, purports to allocate property rights, for a court to apply a presumption that strains its plain words, or that otherwise take [page 248] those words out of their context so as to give them a meaning far wider than was intended, is to illegitimately interfere with those rights.12 The point has particular force in the testamentary context given the basic tenet underscoring will-making, namely freedom of testation. So while, for instance, Dixon J described the presumption against intestacy as ‘a strong presumption’, he was careful to add that the presumption ‘strengthen[s] such indications of intention as may exist’.13 It does not interfere with or oust those intentions. 9.5 The presumption that a court leans against a construction that fosters an intestacy is often coupled with the presumption in favour of early vesting. The latter dictates that ‘where there is a doubt about the time when a gift shall vest, there is a presumption that the testator intended the gift to be vested, subject to being divested, rather than it remain in suspense’.14 This, it is said, reflects the ‘common sense assumption’15 that a testator wishes the objects of his or her beneficence to benefit as early as possible. Being no more than a rule of construction, the presumption in favour of early vesting, like that against intestacy, must yield to contrary intention, say, by the deceased referring to the possibility of the beneficiaries dying ‘before attaining a vested interest’, or the trusts of a share failing because ‘no person attains a vested interest in that share’.16

Intestacy rules subject to family provision orders 9.6 As a family provision order can be made in relation to both a testate and an intestate estate, the intestacy rules, which do not admit to curial

discretion,17 must yield to a court order, which involves an exercise in discretionary judgment, for provision out of an intestate estate.18 The court’s jurisdiction to vary the statutory distribution of a deceased estate on intestacy rests on proof by the applicants that the intestacy rules do not result in adequate provision for their proper maintenance and support out of the deceased’s estate.19

Attempted ouster of intestacy rules by the deceased’s will 9.7 As the intestacy rules are a creature of statute, the language of the relevant legislation determines their parameters. Although the statutes recognise partial intestacy — where part of the deceased’s estate is not the subject of testamentary disposition — to the extent that the intestacy rules apply there is, in the statutory language, no indication that they must yield to an expression of contrary intention in the will of the deceased. The absence of any such indication may suggest, in view of their statutory genesis, that in the event of partial intestacy the rules operate, as regards the intestate estate, irrespective of whether or not the deceased [page 249] wished them to operate. If so, a statement in a testamentary document purporting to exclude the operation of the intestacy rules vis-à-vis any intestate estate (sometimes termed a ‘negative will’) is arguably of no effect. 9.8 The above aligns with early English case authority, reasoning that an attempt to exclude the operation of intestacy rules was illegitimate for its purported interference with a statutory scheme.20 Yet from about the midnineteenth century, English courts ostensibly underwent a partial change of heart, enforcing a negative will if a testator directs that one or more, but not all,21 of the persons otherwise entitled to take on intestacy can take nothing under the will or on intestacy. The negative direction here is treated as an implied gift to the other person(s) entitled on intestacy.22 This, it is said,

‘effectuates the testator’s intent because a testator who has used a negative will would probably have wanted his other heirs, not the heir excluded in his will, to receive the property that passes by intestacy’.23 This approach, that has since translated to the Uniform Probate Code in the United States,24 appears to have been acknowledged around a century ago in New South Wales in Muir v Archdall, where Harvey J said:25 A declaration by a testator that none of his next-of-kin shall take any portion of his property is of no effect if he in fact leaves property undisposed of, but a declaration that one of his next-of-kin shall be excluded may be effective and may amount to a gift by implication of any undisposed of property to the others of the class. This depends upon the construction of the will — ie, whether the testator says that the person excluded is to have no share in his property or merely no share in what he has disposed of by his will. Where a testator makes a will which in terms disposes of the whole of his property and then says one of his next-of-kin is to have nothing under his will, this will not prevent the person named from sharing in any bequest which may lapse or fail … If the testator says that certain of the next-of-kin are to take nothing from his property as to which he may die intestate, that is by implication a gift of such property to the other next-of-kin …

In Muir the testator’s will directed that G (who, as the testator’s brother, was next of kin) and E (who was not a relative) were ‘not to have a penny’. The issue was whether the reference to G not getting a penny was by implication a gift of the testator’s personalty, which the will did not address, to next of kin other than G. The court confined G’s exclusion to benefits under the will, not those under the intestacy rules because, inter alia, the testator assimilated the position of G, who was a next of kin, with that of E, who was not, and hence would not take upon an intestacy.26 Ultimately, as another Australian judge remarked nearly a century later, whether or not a gift is to be implied is ‘very sensitive to the particular terms of the will’ and the extent to which these terms are consistent with an intention to deal with the prospect of an intestacy.27 Dealing with a clause that listed persons who ‘are not to benefit in any way from any distribution from my estate’, that those persons went well beyond those who might take upon intestacy, inclined his Honour towards construing the clause as limited to gifts or distributions [page 250] of residue contemplated by the will.28 The clause did not, as a result, deprive

those within the list who would otherwise be entitled upon intestacy from benefiting thereby.

Taking of intestate’s property under the intestacy rules Vesting upon and following intestate’s death 9.9 Where a deceased leaves a valid will, property effectively disposed thereby vests in the first instance in the executor(s) appointed under the will. The law has from early times recognised that title to the deceased’s property vests in executors absolutely, albeit subject to obligations at law and under statute to carry out the testator’s testamentary instructions as to the distribution of the estate.29 Prior to any distribution, the beneficiaries under the will lack any interest, legal or equitable, in the property bequeathed to them; beneficiaries have only a chose in action to enforce the executors’ duties to administer the estate in line with the testator’s wishes.30 For this reason, there is nothing to preclude a beneficiary from disclaiming a bequest, assuming he or she validly does so.31 9.10 Where, conversely, the deceased has made no will, it stands to reason that title to the deceased’s estate must vest in someone. That person cannot be an executor, because the deceased has not appointed anyone in that role. And in the case of a partial intestacy, there is no mandate for the executor appointed under the will to receive title to property that falls outside the ‘four corners’ of the testator’s disposition. The gap in ownership emanating from the absence of an appointed executor is filled by a person or body prescribed by statute for this purpose, commonly the Public Trustee or equivalent.32 And if a beneficiary under a valid will receives no legal or equitable interest in a bequest preceding its distribution, it seems incongruous that a person who takes via the intestacy rules should be in a position any the more favourable.

Executor or administrator to hold property on trust for persons entitled 9.11 In the territories, South Australia, Victoria and Western Australia the personal representative of an intestate — being the executor of the will, or the administrator of the estate, of the intestate — holds the intestate estate on trust

for the persons entitled to it in accordance with the intestacy rules, subject to his or her rights, powers and duties for the purposes of administration.33 The same applies in Queensland in the event of a partial intestacy.34 This presupposes a grant of representation of the estate, preceding which the estate had, as from the intestate’s death, vested in the Public Trustee or equivalent.35

Disclaimer of interest under intestacy rules 9.12 It has been argued that, as the ‘interests’ of persons who take under the intestacy rules are created, not by the voluntary act of the testator, but by statute, those interests vest directly in those persons by operation of law upon the death of the intestate. There is, on this logic, no need for acceptance by the ‘beneficiary’. If this is correct, there is arguably no scope for a person [page 251] who benefits under the intestacy to disclaim that benefit, ‘because disclaimer is no more than the expression of refusal to accept’.36 9.13 Such an outcome must yield to express statutory provision to the contrary. This exists in New South Wales and Tasmania where, for the purposes of the distribution of an intestate estate, a person is treated as having predeceased the intestate — and therefore not to take under the intestacy — if he or she disclaims an interest, to which he or she would otherwise be entitled, in the intestate estate.37 It may also yield where the statutory schema envisages that ‘beneficiaries’ under an intestacy, like those under a will, do not receive an interest in the relevant property immediately upon the death of the deceased. That statute across Australia appoints the Public Trustee (or equivalent) as taking title to an intestate’s estate (in some jurisdictions, also to a testate’s estate) pending an administrator’s appointment has, to this end, been held to avail a ‘beneficiary’ under the intestacy rules of the right to disclaim any such benefit. Legoe J in Estate of Simmons (deceased) explained the point as follows:38 [I]t is clear that on the death of an intestate some positive step is required by the party or parties beneficially entitled under [the relevant Act] to shift the estate from where Parliament has placed it upon the death of an intestate (namely, in the Public Trustee) until the granting of letters of administration and until the second condition so-called places it in the hands of someone entitled

to deal with it and ultimately to distribute the estate in accordance with the Act. The only automatic vesting is in the Public Trustee. A disclaimer can be made at any time at least up until the issue of the grant.

Accordingly, ‘the beneficiaries are clearly entitled to disclaim up to the time when the residue and the amount to be distributed to the particular beneficiary pursuant to the Act has been ascertained’.39 This will be after the administrator has paid all expenses and debts and cleared the intestate’s estate40 and, in the event of a family provision claim, until the determination by the court of the interests claimed in such proceedings.41

Forfeiture of interest under intestacy rules 9.14 The common law ‘forfeiture rule’ dictates that ‘a person who kills another cannot benefit under the will or upon intestacy, of the person who died at the hand of that person’.42 Underscoring the rule is the notion — grounded in public policy — that ‘no person can obtain, or enforce, any rights resulting to him from his own crime’.43 Excepting the Australian Capital Territory and New South Wales, where statute now grants the court a limited discretion to [page 252] permit a killer to inherit from the victim,44 the full rigour of the forfeiture rule clearly applies in Australia where the beneficiary would otherwise take under the intestacy rules.45

Effect of disclaimer or forfeiture 9.15 If there is a single lapse of an ‘interest’ under an intestacy, whether occasioned by disqualification under the rule of public policy (such as the forfeiture rule) or by disclaimer, the interest devolves upon other members of that beneficiary class as if the disqualified or disclaiming person did not exist.46 The interest does not vest in the Crown as bona vacantia (ownerless goods), which is ordinarily the ultimate default position. In New South Wales and Tasmania statute addresses the point by treating a person who disclaims, or

who is disqualified from taking, an interest in an intestate estate as having predeceased the intestate,47 so that, if the person has issue, they may take the person’s share of the intestate estate. Otherwise the forfeiture rule could effectively operate to punish a killer’s issue for the killer’s crime.

Concepts of ‘survivorship’ for intestacy rules 9.16 The intestacy rules do not purport to interfere with the basic principles of lapse, where the person who is to take a relevant benefit predeceases the deceased.48 Accordingly, a person is not entitled to participate in the distribution of an intestate estate unless he or she survives the intestate, a point that is implicit in the statutes in most jurisdictions, and explicit in the New South Wales and Tasmanian legislation.49 9.17 The New South Wales and Tasmanian Acts add that a person is not regarded as having survived an intestate unless the person is born before the intestate’s death and survives the intestate by at least 30 days, or is born after the intestate’s death after a period of gestation in the uterus that commenced before the intestate’s death and survives the intestate for at least 30 days after birth.50 In a similar vein, the Queensland legislation states that where a person entitled to take any part of the residuary estate of an intestate does not survive the intestate for a period of 30 days, that part of the residuary estate is treated as if that person had died before the intestate.51 In South Australia the same applies in the event that an intestate and his or her spouse or domestic partner die within 28 days of each other.52 Survivorship provisions of this kind may avoid the cost of multiple administration in some instances,53 as well as the need to determine the order of death54 in the case of simultaneous or nearsimultaneous deaths.55 [page 253]

Distribution of Intestate Estate under the Intestacy Rules

Overview of the intestacy rules 9.18 Statute in each Australian state and territory makes explicit provision for who is to take an intestate’s estate and the shares to be taken. The rules, broadly speaking, aim to represent the community view of what should be done with the estate of a person who has died intestate, and to this end aim to produce ‘the same result as would have been achieved had the intestate had the foresight, the opportunity, the inclination or the ability to produce a will’.56 They commence with the intestate’s spouse, which today extends beyond legal spouses to de facto spouses and same-sex partners.57 Also high in the priority list are the children (termed ‘issue’)58 of the intestate. Generally if the intestate leaves no spouse or issue, the legislation prescribes a list of beneficiaries — the intestate’s parents,59 siblings, aunts/uncles and cousins — in an order of descending priority.60 If, and only if, the intestate leaves none of these persons to take will his or her estate vest in the Crown as bona vacantia,61 an outcome statistics reveal to be most [page 254] infrequent.62 Despite the aspects common to the statutory regimes in each jurisdiction, detail differences obviate a collapsed treatment. The statutory orders target familial relationships, scaled from those arguably closest to the intestate to those with a connection gradually more removed, and in so doing aim to accord with the presumed intentions of the deceased.63 The focus on familial, and usually blood, relationships dictates that the intestacy rules are not designed to reflect relative merit or desert so far as inheritance is concerned. It is assumed that questions of merit or desert are within the province of the deceased to implement by way of a testamentary document rather than by a statutorily declared order of inheritance. Moreover, although the law on family provision is not primarily designed to reflect an applicant’s merit — vis-à-vis the deceased or other claimants on the deceased’s estate64 — to the extent that it takes into account an applicant’s conduct vis-à-vis the deceased, it de facto targets aspects of merit or desert. 9.19

The intestacy rules are, however, subject to specific regimes relating to

spouses, who in each jurisdiction may elect to purchase the home they shared with the deceased (though in New South Wales and Tasmania it extends to any property of the intestate).65 In several jurisdictions, what a person can take under the intestacy rules may be reduced by (some) benefits received from the intestate inter vivos.66 Other than in the Australian Capital Territory, South Australia, Victoria and Western Australia, moreover, what follows must yield to specific provisions governing intestacy in the context of Aboriginal estates.67

Observations regarding particular classes of person who take under the intestacy rules Spouses 9.20 The principal beneficiary of the intestacy rules is the spouse or de facto partner68 of the intestate (collectively ‘spouse’ below), reflecting the continuing primacy of the spousal relationship in Australian society. Indeed, it has been suggested that needs of the surviving spouse have assumed greater importance over time — compared to needs of surviving issue — as a result of, inter alia, ‘changing demographics that make spouses and partners more reliant on the intestate’s estate in their later years and the children less reliant’.69 This is in line with contemporary perceptions of marriage as an economic partnership, and sits well with studies (albeit in the United States) that reveal that most testators in smaller estates — which intestate estates tend to be — devise their entire estates to their surviving spouses, even when the couple [page 255] has children.70 Though there are clearly factors that pull against the economic partnership notion,71 the statutory trend, in Australia and most other common law jurisdictions, remains to favour the intestate’s spouse, and the issue focuses on the extent to which his or her claim should be preferred to that of the intestate’s issue. Underscoring the statutory response is a view that a surviving spouse’s needs will, in the common scenario where he or she is older, likely be greater

than those of independent adult children of the deceased.72 There is too the likelihood that the surviving spouse will have contributed to both the acquisition and maintenance of the property, and to the raising of the children of the relationship.73 The foregoing explains why, in the event that the intestate leaves both a spouse and issue, each jurisdiction makes provision for a statutory legacy in favour of the spouse74 and, to produce ‘some continuity of lifestyle for the spouse’,75 an entitlement to the intestate’s household effects76 and to elect to purchase the home shared with the intestate.77 9.21 At the same time, no Australian legislature has gone so far as to entitle an intestate’s spouse to receive the entire estate in the face of living issue,78 presumably fearing that it could be too generous to the surviving spouse in the case of large estates and could undermine the legitimate inheritance expectations of the deceased’s issue, especially if the latter are stepchildren of the spouse. In the latter event, no assumption can be made that those issue will receive a share of the intestate’s estate through the surviving spouse.79 [page 256]

Curtesy and dower obsolete 9.22 The common law recognised what it termed an ‘estate by curtesy’, describing a husband’s right, in limited circumstances,80 to a life estate in all of his wife’s real property on her death. Corresponding to this was the ‘right of dower’, namely a wife’s right to a life estate in a third of her husband’s real property on his death in defined circumstances.81 Both doctrines have been statutorily abolished in Australia, whether via the statute governing intestacy or the administration of estates82 or some other legislation,83 and have in any case become irrelevant in light of the modern rights on intestacy of the surviving spouse or partner.

‘Issue’ 9.23 Ex-nuptial children Status of children legislation in each jurisdiction effectively abolishes the distinction at common law between legitimacy and illegitimate birth for legal purposes.84 Accordingly, a child born out of wedlock

is, for the purposes of taking on the distribution of the intestate estate, treated in the same way as a child born within wedlock. 9.24 Stepchildren So far as the ‘issue’ of the intestate are concerned, the intestacy rules benefit only those persons who are the natural children of the intestate. Stepchildren do not come within the rules, the common law dictating that ‘if a man accepted full responsibility for his wife’s children by a previous marriage without a formal adoption, those children had no rights against his estate’.85 The community perception, it is reasoned, sways against a recognition of a natural claim to a step-parent’s bounty,86 and stepchildren may in any event have two living natural parents from whom such a bounty may ensue. To allow inheritance of a step-parent’s estate via the intestacy rules could, to this end, sanction a form of ‘double dipping’.87 9.25 Adopted children As adoption legislation treats an adopted child, for the purposes of the law, as a child of the adoptive parent(s),88 the adopted child of an intestate can take under the intestacy rules, but cannot take, under those rules, from the estate of his or her biological parents. The intestacy legislation in New South Wales and Tasmania, in any event, explicitly addresses the point by declaring that an adopted child is, for the purposes of distribution on an intestacy, to be regarded as a child of the adoptive parent(s)89 (but this does not stand in the way of a distribution order under the dedicated indigenous intestacy provisions in these [page 257] jurisdictions and the Northern Territory).90 Family relationships that exist as a matter of biological fact, and are not consistent with the relationship created by adoption, are therefore to be ignored. The New South Wales statute adds that a child of a surrogacy arrangement in respect of whom a parentage order91 is made is to be regarded, for the purposes of distribution on an intestacy, as a child of the intended parent(s) named in the parentage order.92

Person(s) entitled aged under 18 9.26

In the territories, if a person entitled under the intestacy rules to some

or all of the intestate’s estate is, at the date of the intestate’s death, less than 18 years of age and is unmarried, the person may take the relevant part of the intestate estate beneficially on reaching 18 or marrying before that age.93 If he or she dies before reaching 18 years of age and without having married, however, no part of the intestate estate vests in him or her, and so his or her personal representatives cannot take any part of that estate.94 The foregoing does not affect the operation of any law authorising expenditure for the maintenance, advancement or benefit of an under-age person out of property held on trust for, or for the benefit of, the person. Any property forming part of the intestate estate that is expended for this purpose reduces the intestate estate even if the under-age person dies before reaching 18 and without having married.95 9.27 The position differs in New South Wales and Tasmania, where the entitlement of a minor to an interest in an intestate estate vests immediately.96 It is not deferred until the minor reaches majority or marries. This is the position in the remaining jurisdictions too, which do not statutorily impinge upon what would otherwise be the ordinary course of property vesting.

Relationships of the whole and the half blood 9.28 Other than in New South Wales and Tasmania, the intestacy legislation provides that where a person dies intestate as respects all or any of his or her property, for the purpose of determining who is entitled to participate in the distribution of the intestate estate, it is immaterial whether a relationship is of whole blood (relatives who share the same ancestors) or of half blood (relatives who share only one ancestor).97 As this represents what is otherwise the common law position,98 that the New South Wales and Tasmanian Acts lack equivalent provision means that the law in those jurisdictions is the same.

Australian Capital Territory 9.29 Schedule 6 to the Administration and Probate Act 1929 (ACT) prescribes the manner in which an intestate’s estate is to be distributed. It establishes two distinct regimes for distribution, dependent on whether or not

the intestate is survived by a partner.99 [page 258]

Where intestate is survived by a partner 9.30 If the intestate is survived by a partner, the latter is entitled to the whole of the intestate estate if its value100 does not exceed $200,000 or the intestate is not survived by issue. If the intestate is survived by issue and the value of the estate exceeds $200,000, the partner is entitled to $200,000101 (less any amount he or she may take testamentarily where the intestacy is only partial)102 and a set proportion of the value of the balance of the estate,103 with the issue of the intestate then being entitled to what remains. For the above purposes, the intestate estate is taken not to include any personal chattels104 of the intestate.105 Rather, the partner may take, absolutely, any personal chattels that are not effectively disposed of by the will (if any) of the intestate.106

Where intestate is not survived by a partner 9.31 If a partner does not survive the intestate, the entire estate is to be divided equally between the surviving children of the intestate. If one of those children predeceases the intestate but leaves issue (that is, the intestate’s grandchildren), the latter share equally in what would have been their parent’s share.107 In the event of a partial intestacy, any interest received by a child under the will of the intestate must be brought into account in calculating the interest that the child is entitled to take under the intestacy rules.108 If the intestate leaves no issue, the next in line are the surviving parent(s) of the intestate. Without surviving parents to take, the estate is to vest in surviving ‘next of kin’ — the intestate’s siblings, grandparents, aunts and uncles, and cousins109 — lacking whom the Territory takes the estate.110 If the ‘next of kin’ are entitled, they take in the order listed in the preceding sentence, except that the children of the intestate’s siblings take in the event that no siblings survive the intestate.111

[page 259]

Where intestate survived by both spouse/civil partner and eligible partner 9.32 If an intestate is survived by a spouse or civil partner112 and an eligible partner,113 the entitlement of each to share in the intestate estate — as per the statutory rules — is determined according to the duration of the relationship between the eligible partner and the intestate.114 If the eligible partner and the intestate had been domestic partners115 continuously for less than 5 years when the intestate died, the relevant share of the intestate estate must be distributed equally between the spouse or civil partner and the eligible partner. If they had been domestic partners continuously for at least 5 years at the date of the intestate’s death, the eligible partner is exclusively entitled to the partnership share.

New South Wales and Tasmania 9.33 In New South Wales and Tasmania the entitlements of an intestate’s ‘spouse’ — being a person married to the intestate, or a party to a specified relationship116 with the intestate, immediately before the latter’s death — under the intestacy rules rest on whether the intestate leaves one spouse, or more than one spouse.

Where a sole surviving spouse 9.34 If the intestate leaves a spouse but no issue, or leaves issue that are all also issue of the spouse, the spouse is entitled to the whole of the intestate estate.117 This represented a change from the previous law, which generally divided the estate as between the surviving spouse and the issue, driven in part by research revealing that only rarely did deceased persons bequeath their estate to be divided between their surviving spouse and their children.118 The children, it is assumed, will inherit from the surviving spouse. [page 260]

The position is different where the deceased leaves children from a previous relationship, who it cannot be assumed will inherit from the surviving spouse. In this event the spouse is entitled to the intestate’s personal effects,119 a statutory legacy, and one-half of any remainder of the intestate estate.120 The ‘statutory legacy’ consists of the ‘CPI adjusted legacy’ — being $350,000 adjusted by inflation121 — plus interest if it is not paid (in full) within 1 year after the intestate’s death.122 If, however, a spouse is entitled to a statutory legacy under the New South Wales or Tasmanian legislation, as well as under the law of another Australian jurisdiction(s), the entitlement is limited to the highest amount fixed by way of statutory legacy under any of the relevant laws, subject to certain qualifications.123 If the value of an intestate estate is insufficient to allow for the payment of a statutory legacy in full, the statutory legacy abates to the necessary extent and, if two or more statutory legacies are payable, they abate ratably.124

Where multiple surviving spouses 9.35 The New South Wales and Tasmanian legislation makes specific provision for the distribution of the estate of an intestate who leaves more than one spouse, distinguishing the scenario where the intestate leaves issue from one or more of the spouses from where the issue is from a person other than one of those spouses.125 If the deceased leaves no issue, or leaves issue by one or more of those spouses, the spouses are entitled to the whole of the intestate estate in shares according to a written agreement between the spouses (a ‘distribution agreement’), an order of the court (a ‘distribution order’) or, if certain conditions are met, in equal shares.126 Those conditions are that:127 • the personal representative has given each spouse written notice stating that the personal representative may distribute the property equally between the spouses unless, within 3 months of the notice, they enter into a distribution agreement and submit the agreement [page 261] to the personal representative, or at least one of the spouses applies to the

court for a distribution order; and • at least 3 months have elapsed since the notices were given, and the personal representative has not received a distribution agreement or notice of an application for a distribution order, or an application for a distribution order has been made but the application has been dismissed or discontinued. Upon being requested by a spouse to initiate the process for making equal division of property, the personal representative must give the requisite notices or apply to the court for a distribution order.128 The court may, on an application for a distribution order, order that the property be distributed between the spouses in any way it considers just and equitable,129 even to the extent of allocating the whole of the property to one of the spouses to the exclusion of the other or others.130 If an intestate leaves issue other than the issue of a surviving spouse, the spouses share the statutory legacy that would be payable had the intestate left only one surviving spouse,131 as well as the intestate’s personal effects, and onehalf of any remainder of the intestate estate, in accordance with the foregoing.132

Distribution among relatives 9.36 If an intestate leaves no spouse but leaves issue, the intestate’s children take the entire intestate estate.133 If an intestate leaves one or more spouses as well as issue who are not issue of a surviving spouse, the issue take what remains of the intestate estate after satisfying the spousal entitlement(s).134 In each case, if all the issue survives the intestate, their entitlement vests in them in equal shares.135 If one or more of the issue do not survive the intestate, but leave issue themselves (the intestate’s grandchildren), the grandchildren (and, if they do not survive the intestate, any of their issue) take, in equal shares, the share that their parent would otherwise have taken.136 The parent(s) of an intestate are entitled to the whole of the intestate estate if the intestate leaves no spouse and no issue.137 Lacking spouses, issue or parents to take, the brothers and sisters of an intestate are entitled to the whole of the intestate estate, in equal shares, assuming that none of them predeceased the intestate.138 If a brother or sister predeceased the intestate but

left issue, that brother or sister’s share is divided equally as between those issue (the intestate’s nephew(s) or niece(s)) or, should the latter also predecease the intestate, between the intestate’s great-nephew(s) or great-niece(s).139 If the intestate leaves no spouse, issue, parent, brother or sister, or issue of a deceased brother or sister, the grandparent(s) of an intestate share the whole of the intestate estate.140 If, in this event, there are no surviving grandparents, the brothers and sisters of each of an intestate’s parents (the intestate’s aunts and uncles) share in the entire intestate estate,141 except that the [page 262] share of any aunt or uncle who predeceased the intestate is to be shared between any issue of that person.142 9.37 The legislation envisages that a relative may be entitled to participate in the distribution of an intestate estate in separate capacities.143 It gives the example of an intestate who dies leaving no spouse and no surviving relatives except children of a deceased maternal aunt and paternal uncle who had a child in common as well as children of other unions. In this case, the child of the union between the maternal aunt and the paternal uncle are entitled to participate in the estate both as representative of the maternal aunt and as representative of the paternal uncle.

Absence of persons entitled 9.38 If an intestate dies leaving no one entitled to the intestate estate, the State is entitled to the whole of the intestate estate.144 In this event, the Minister may, on application,145 waive the State’s rights in whole or part in favour of dependants of the intestate, any persons who the Minister considers have a just or moral claim on the intestate, any organisation or person for whom the intestate might reasonably be expected to have made provision, the trustees for any of the foregoing person(s) or organisation(s) or, in Tasmania, any other organisation or person.146

Northern Territory 9.39 Like its Australian Capital Territory counterpart, Sch 6 to the Administration and Probate Act 1969 (NT) prescribes the manner in which an intestate’s estate is to be distributed.147 But unlike its counterpart, that schedule establishes four distinct regimes for distribution, dependent on whether or not the intestate is survived by a spouse,148 de facto partner,149 or both, or is not survived by any spouse or de facto partner.150 If the intestate is survived by a spouse, but not by any de facto partner, the spouse takes the entire intestate estate if the intestate is not survived by issue or by a parent, a brother or sister (or the issue of a brother or sister). The same applies if the intestate is survived by a de facto partner but not by a spouse. 9.40 If the intestate is survived by issue, the spouse takes the entire estate if its value151 does not exceed $350,000152 (less any amount he or she may take testamentarily where the intestacy [page 263] is only partial)153 and, if it does exceed that amount, one-third of the balance (or one-half if only one child of the intestate, or the issue of that child, survives the intestate). What remains is to be shared equally between the intestate’s issue. The same applies where the intestate is survived by a de facto partner but not by a spouse if the issue are, or include, issue of the intestate and the de facto partner, or the de facto partner was the de facto partner of the intestate for a continuous period of not less than 2 years immediately preceding the intestate’s death. Otherwise, the issue are entitled to the whole of the intestate estate. So far as dividing the estate between the issue of the intestate, the issue are to share equally, except that, if one or more of them predecease the intestate, the children of the deceased issue (the intestate’s grandchildren) take the share that the deceased would have taken.154 In the event of a partial intestacy, any interest received by a child under the will of the intestate must be brought into account in calculating the interest that the child is entitled to take under the intestacy rules.155

9.41 If, not being survived by issue, the intestate is survived by a parent, brother or sister, or the issue of a brother or sister, the spouse takes the entire estate if its value does not exceed $500,000156 (less any amount he or she may take testamentarily where the intestacy is only partial),157 and one-half of any excess in value of the intestate estate beyond that amount. If the intestate is survived by one or both of his or her parents, they take the remainder. If the parents predecease the intestate, the remainder is shared between the intestate’s siblings (or, if one or more of the siblings are deceased, the issue of the siblings). 9.42 If the intestate is survived by both a spouse and a de facto partner, the de facto partner takes as if he or she were the intestate’s spouse if: • the de facto partner was the de facto partner of the intestate for a continuous period of not less than 2 years immediately preceding the intestate’s death, and the intestate did not at any time during that period live with the person to whom he or she was married; or • the intestate is also survived by issue of the intestate and the de facto partner. Otherwise, the intestate is treated as having been survived by the spouse, who therefore takes in line with the rules explained above. [page 264] Where an intestate is survived by his or her spouse or a de facto partner, the intestate estate is taken, for the above purposes, to exclude any personal chattels158 of the intestate.159 Instead the personal chattels vest in the surviving spouse or de facto partner. In the event that the intestate is survived by both a spouse and a de facto partner, the latter takes the chattels only if he or she was the de facto partner for a continuous period of not less than 2 years immediately preceding the intestate’s death, and the intestate at no time during that period lived with the spouse, or the intestate is survived by issue of the intestate and the de facto partner.160 9.43 Consistent with the general approach elsewhere, if the intestate is survived by neither a spouse nor a de facto partner, those who take are the

intestate’s issue, parent(s), and next of kin — namely, the intestate’s siblings, grandparents, aunts and uncles, and cousins161 — in that order. If the ‘next of kin’ are entitled, the children of the intestate’s siblings take in the event that no siblings survive the intestate.162 If none of these exists the intestate estate is deemed to be bona vacantia, to which the Territory is entitled. But it remains open to the Crown to waive its entitlement in favour of dependants of the intestate, others for whom the intestate might reasonably have been expected to make provision, or any other persons that in its opinion have a just claim to the grant of the property.163

Queensland 9.44 The person(s) entitled to take an interest in the residuary estate164 of an intestate, and the interest to which the person(s) are entitled, are ascertained by reference to Sch 2 to the Succession Act 1981 (Qld).165 It distinguishes the scenario where the intestate is survived by a spouse166 from that where no spouse survives the intestate.167 In the former case, the division of the estate depends on whether the intestate is survived by issue. If the intestate leaves no issue, a sole surviving spouse takes the entire estate. In the event that there are two or more surviving spouses, the division is made according to rules equivalent to those applicable in New South Wales and Tasmania: according to a written agreement between them (a ‘distribution agreement’), a court order (a ‘distribution order’) or otherwise in equal shares as decided by the personal representative.168 9.45 If the intestate is survived by issue, a sole surviving spouse takes $150,000, the household chattels169 and one-third of the remaining estate (unless only one child, or his or her issue, [page 265] survived the intestate, in which case the proportion is one-half). If there is more than one surviving spouse, the same applies except that each takes an equal portion of the $150,000, subject to a distribution agreement or

distribution order that provides otherwise.170 The issue are then entitled to any balance remaining in the estate. They take in equal shares, but if a child of the intestate predeceases the intestate but leaves surviving issue (the intestate’s grandchildren), the latter share in what the child would have taken under the intestacy.171 If the intestate is not survived by a spouse, the intestate estate vests in his or her surviving issue in the same fashion. But if the intestate is not survived by a spouse or issue (including grandchildren as noted above), the estate is to vest in the intestate’s parents or, if the latter are deceased, the intestate’s surviving ‘next of kin’ — namely his or her siblings, grandparents, aunts and uncles, nephews/nieces, and cousins (in the latter two instances, whose parents have predeceased the intestate).172 The next of kin take in the following order: the siblings of the intestate (or, for siblings that have not survived the intestate, the nephews/nieces of the intestate); the grandparents of the intestate; and the aunts and uncles (or, for those that have not survived the intestate, the cousins of the intestate).173 9.46 Only if there is no one of the above to take will the intestate estate be deemed to be bona vacantia and to vest in the Crown. However, the Crown may waive this entitlement in favour of the same classes of persons listed for this purpose in the Northern Territory.174

South Australia Spouses/partners 9.47 If an intestate is survived by a spouse175 or domestic partner176 but no issue, the spouse or domestic partner is entitled to the entire intestate estate.177 If the intestate is survived by a spouse or domestic partner and also by issue, the spouse or domestic partner is entitled the entire intestate estate if its value178 does not exceed $100,000.179 If the value exceeds that sum, the spouse or domestic partner may take one-half of the balance of the intestate estate, and the issue take the balance in the shares noted below.180 In any event, a surviving spouse or domestic [page 266]

partner is entitled to any personal chattels181 of the intestate.182 If an intestate is survived by a spouse and a domestic partner, each shares equally in the property (including personal chattels) that would have devolved on him or her had the intestate been survived only by a single spouse or domestic partner.183

Issue/relatives 9.48 The intestate estate of an intestate not survived by a spouse or domestic partner, but survived by issue, vests in the issue in equal shares,184 except that the children of the issue who predecease the intestate (that is, the grandchildren of the intestate) share equally in the share to which their parent would have been entitled had he or she not died.185 If the intestate — being neither survived by a spouse, a domestic partner nor by issue — is survived by a relative, relatives, or issue of a relative or relatives, those persons are entitled to the intestate estate.186 The term ‘relative’ means a relative of the first, second, third or fourth degree, namely the intestate’s parents (first degree), siblings (second degree), grandparents (third degree) and aunts and uncles (fourth degree).187 The relatives take in that order, except that, where a sibling or aunt or uncle predeceases the intestate, their issue divide between them the share that their parent would have taken.188 Only if the intestate is not survived by any of the above persons entitled to the intestate estate does the estate vest in the Crown as bona vacantia.189 The same outcome ensues if the only person(s) otherwise entitled have disclaimed the entitlement190 or have been disentitled to it by virtue of the forfeiture rule.191 Provision, however, exists for the Governor to waive the Crown’s entitlement as regards land.192

Victoria 9.49 The Victorian intestacy rules catalogued below will, in due course, be replaced by a regime aligned with that in New South Wales and Tasmania. This is scheduled to occur once the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Bill 2016 (Vic) is enacted and takes effect.193 The changes have been driven by recommendations of the Victorian Law Reform Commission, arising out of a concern that in some

areas Victorian intestacy law is unnecessarily complex and the desirability of aligning its laws with other jurisdictions.194 [page 267]

Spouses/partners 9.50 The partner195 of an intestate who does not leave any issue is entitled to the intestate’s residuary estate.196 If the intestate leaves issue, the partner is entitled to the personal chattels of the intestate, the entire residuary estate if it is worth no more than $100,000 or, in the event that the estate exceeds that value, $100,000 (plus interest on that amount calculated at the set rate197 from the date of the intestate’s death) and one-third of the balance of the estate.198 If an intestate leaves both a spouse199 (or registered domestic partner200 or registered caring partner)201 and an unregistered domestic partner,202 the entitlement of the latter to share in the estate depends on the length of time he or she lived as the intestate’s domestic partner continuously before the intestate’s death.203 If that period is between 2 and 4 years (or less than 2 years if the person was the parent of a child of the intestate aged under 18), the unregistered domestic partner is entitled to one-third of the partner’s share. If the period is between 4 and 5 years the entitlement rises to one-half. It rises further, to two-thirds, if the cohabitation lasted between 5 and 6 years. Where the time frame is 6 years or more, the unregistered domestic partner takes to the exclusion of a spouse, registered domestic partner or registered caring partner.

Issue/relatives 9.51 The issue of the intestate take the remainder of the estate, except for any issue that predecease the intestate, in which case their share accrues and is divided between any children of theirs.204 In the event of a partial intestacy, the issue must bring into account any beneficial interests they acquired under the will.205 Lacking a partner or issue, the intestate’s surviving parent(s) take the estate.206 If in this instance there are no surviving parents, the estate accrues to the intestate’s ‘next of kin’,207 a concept not statutorily defined

which therefore takes its meaning at general law.208 The legislation does, however, stipulate that an intestate’s siblings (and their children in the event that a sibling predeceases the intestate) take in priority to grandparents.209 [page 268] If there is no person to take under the foregoing, the intestate estate vests in the Crown as bona vacantia.210 However, it is open to the Crown to make a grant, conveyance, transfer, assignment, delivery or payment of that estate to any person who was dependent upon the deceased or for whom it considers the deceased might reasonably have been expected to make provision.211

Western Australia Where no de facto partner involved 9.52 The entitlements on intestacy in Western Australia are, outside of de facto partners, comprised in a table located within s 14(1) of the Administration Act 1903 (WA). The table entitles the surviving spouse of an intestate to all household chattels212 included in the intestate property. If an intestate dies leaving a spouse and issue, the surviving spouse takes the entire intestate estate if the net value of the intestate property213 (other than the household chattels) does not exceed $50,000. If that value exceeds the $50,000, the surviving spouse is entitled to $50,000 (plus interest on that sum)214 and one-third of the residue (one-half if only one child, or his or her issue, survives the intestate),215 leaving the remaining two-thirds for the issue to take. The issue divide their entitlement equally, except that, if a child of the intestate predeceases the intestate but leaves issue of his or her own, the latter take(s) the share to which his or her parent would have been entitled.216 9.53 If an intestate dies leaving no issue, but a spouse and one or more of a parent, a sibling or a child of a sibling, the spouse takes the entire intestate estate if its net value (excluding the household chattels) does not exceed $75,000. If the net value of the intestate property exceeds that amount, the spouse is entitled to $75,000 (plus interest)217 together with one-half of the

residue. If the value of the other half does not exceed $6000, or if no sibling or niece/nephew survives the intestate, the parent(s) of the intestate take that other half. Otherwise the parent(s) are entitled to $6000 and one-half of the remainder, the siblings (or their issue) being entitled to the other half. If neither parent survives the intestate, the siblings (or their issue) take the other half. Where siblings are to take, their share is divided equally inter se, except that, if a sibling of the intestate predeceases the intestate but leaves issue of his or her own (nephews/nieces), the latter take(s) the share to which his or her parent would have been entitled.218 9.54 Where an intestate dies leaving a spouse but no issue, parent, sibling, niece or nephew, the spouse takes the entire intestate estate. The issue of an intestate are entitled to the entire intestate estate if there is no surviving spouse. If there is no spouse or issue, but the intestate’s parent(s) survive the intestate, the parents take the entire intestate estate if its net value does not exceed $6000. It if exceeds this amount, the parent(s) receive $6000 and onehalf of the residue; the intestate’s siblings and nephews/nieces take the other half. But if no siblings or nephews/nieces survive the intestate, but one or both parents do, the latter take all. [page 269] If an intestate leaves no spouse, issue or parent, but leaves one or more siblings or nephews/nieces, these persons are entitled to the entire intestate estate. If none of the preceding persons survive the intestate, but he or she is survived by one or more grandparents, the latter take all. Absent any of these persons to take, the estate goes to the intestate’s surviving aunts/uncles and/or cousins. If none of these persons is in existence, the entire intestate estate passes to the Crown by way of escheat.219 In this event, if no claim to the estate is made by the Treasurer within 12 months of the date of the order of escheat,220 the Governor may order, on application, that all or part of the estate or its proceeds be given to person(s) having a moral claim to it.221

Where de facto partner involved

9.55 If an intestate dies leaving a de facto partner222 (but no husband or wife) with whom he or she lived as a de facto partner for at least 2 years immediately before his or her death, the de facto partner is entitled to the intestate property to which a spouse of the intestate would have been entitled, had the intestate died leaving a spouse.223 If the intestate dies leaving both a spouse and a de facto partner, but had lived with the latter for at least 2 years immediately before death, and not lived as the spouse of the person to whom he or she was married during any part of that time, the de facto partner and the spouse share one-half of the intestate estate to which the spouse would have been otherwise entitled.224 If, on the other hand, the time frame in question exceeds 5 years, the de facto partner takes as if he or she were a spouse, to the exclusion of the spouse.225 If the intestate leaves more than one de facto partner entitled to take, they are to divide their share equally.226

Rights of Spouses/Partners to Purchase Intestate Dwelling Houses Backdrop 9.56 The statutory rights of a surviving spouse to a deceased’s estate have their progenitor in United Kingdom common law and statute. The common law doctrines of curtesy and dower provided special lifetime rights to the widower and widow respectively in relation to their deceased spouse’s real estate.227 Statutory provision for spouses (and now de facto or domestic partners) to take priority to an intestate’s estate dictated the need to statutorily abolish curtesy and dower.228 Thereafter, the Intestates’ Estates Act 1952 (UK) gave spouses a further entitlement, namely to require the personal representatives to exercise their power of appropriation in respect of the matrimonial home in or toward the satisfaction of their interest in the estate. Underscoring this initiative was the desirability that the surviving spouse should, if he or she so wishes, be able to remain in the matrimonial home,229 the concern being that ‘[t]o be forced to leave the home after the partner’s death, and after possibly years of home life there, could be a most traumatic experience’.230 This proceeds on the assumption, of course, that the home is not held as joint tenants; for homes held on a joint tenancy there is no need

[page 270] for this form of statutory intervention, as the surviving spouse in this instance takes title to the property pursuant to survivorship.231 This initiative has seen implementation in each Australian jurisdiction, albeit not entirely uniformly. Hence, even though there are substantial similarities between the Australian regimes — they each, for instance, use the vehicle of an election, and prescribe requirements for an election to be made — collapsing their treatment has the drawback of being potentially misleading. They also have counterparts elsewhere232 and, like spousal entitlements upon intestacy generally, are ostensibly grounded in the economic partnership notion inherent in the modern conception of marriage.

The territories and Western Australia Election to appropriate 9.57 If an intestate is survived by a spouse or partner233 (hereafter ‘partner’) and the intestate estate234 comprises or includes an interest in a dwelling house235 where the partner was residing at the date of the intestate’s death,236 the partner may elect to have that interest appropriated237 ‘in or towards the satisfaction’ of any interest he or she may have in the property of the intestate.238 Although not made explicit by this statutory language, it has been interpreted, in the context of an equivalent English provision, to mean that the spouse’s election is available both where his or her entitlement on intestacy exceeds the value of the house, and where it does not, albeit that in the latter instance the spouse must compensate the estate for the difference by way of a cash payment.239 The latter now has some Western Australian judicial support.240 [page 271] The election must be made within 1 year of the date representation241 in

the estate is granted by the court, or within any extended period the court allows.242 It must be given in writing to the (other) personal representative(s) of the intestate or, if the partner is the sole personal representative, to the registrar.243 Once made, an election is not revocable except with the consent of the personal representative(s).244 A partner may require the personal representative of the intestate to have the interest in the dwelling house valued, and to disclose the result of that valuation, before deciding whether to exercise the relevant right.245 9.58 To activate the foregoing, the legislation states that a personal representative of an intestate lacks authority to dispose of the intestate’s interest in the dwelling house within the 1-year period (if extended by the court, during that extended period) without the partner’s written consent, except in the course of administration owing to want of other assets or otherwise with the approval of the court.246 But this does not affect the validity of a sale by the personal representatives of any part of the estate of the intestate.247 The preceding paragraph assumes that the partner is not a personal representative of the intestate.248 But if he or she is a (or the) personal representative of the intestate, the partner is not subject to the ‘purchase rule’ — which prohibits a trustee from purchasing trust property249 — in acquiring the interest of the intestate in the relevant dwelling house.250

Restrictions on right to appropriate 9.59 The partner’s right in this context is not exercisable if the interest of the intestate in the dwelling house is a tenancy that will end within 2 years of the latter’s death or that the landlord is, by notice given after the date of death of the intestate, entitled to determine before the end of that period.251 Nor is the right exercisable if: • the dwelling house forms part of a building and an interest in the whole of the building is comprised in an intestate estate; • the dwelling house is held with agricultural land and an interest in the agricultural land is comprised in an intestate estate; • part or all of the dwelling house was, at the date of an intestate’s death, used as a hotel or boarding (in Western Australia, lodging) house; or

• a part of a dwelling house was, at the date of an intestate’s death, used for purposes other than domestic purposes; [page 272] unless the court orders, on being satisfied that its exercise is not likely to diminish the value of the assets (other than the interest in the dwelling house) in the intestate estate, or to make those assets more difficult to dispose of.252 If the court is not so satisfied, it may approve the disposal of the interest in the dwelling house within the 1-year period.253

New South Wales and Tasmania 9.60 Like its counterparts elsewhere, the New South Wales and Tasmanian legislation makes provision for the intestate’s sole surviving spouse to elect to purchase property from the intestate estate; but it extends this right beyond a dwelling shared with the intestate before the latter’s death to any property of the estate.254 This extension follows upon a recommendation of the National Committee for Uniform Succession Laws.255 It eschews the need to define the shared home, identify the land associated with the shared home and any need to investigate whether or not the parties resided in the home at the date of the deceased’s death, all of which are capable of generating dispute, with consequent cost and delay. The election requires court authorisation if the property forms part of a larger aggregate, and the acquisition could substantially diminish the value of the remainder of the property or make the estate’s administration substantially more difficult.256 The court must refuse authorisation if it considers that these matters cannot be adequately addressed by granting an authorisation subject to conditions,257 such as a condition that the spouse pay compensation to the estate in addition to consideration to be given for the property.258 9.61 If the spouse is not a personal representative, the legislation requires an intestate’s personal representative, within 1 month of the grant of administration, to notify the intestate’s spouse of his or her right of election.

The notice must state how the right is to be exercised, the fact that the election may be subject to the court’s authorisation and the circumstances in which such an authorisation is required, and that the right must be exercised within 3 months (or a longer period allowed by the court) after the date of the notice.259 That the spouse is a personal representative does not preclude him or her, by virtue of the general law purchase rule — pursuant to which a trustee is proscribed from purchasing trust property — making an election to acquire property from the intestate estate.260 That the spouse has not reached the age of majority also does not preclude a valid and effective election.261 The election must be made within 3 months of the date of the above notice or, if the spouse is a personal representative, within 3 months after the grant of administration.262 The court may, if it considers there is sufficient cause (‘proper reasons’ in Tasmania) for doing so, extend the time for making the election263 and may do so whether or not the time for making the election [page 273] has passed, but not after the administration of the estate has been completed.264 Also, nothing in the foregoing confers on a spouse any right against a person who in good faith purchased for value from the personal representative any property of the intestate.265 Written notice identifying with reasonable particularity the property the spouse elects to acquire is needed.266 Notice must be given to each personal representative of the intestate, and to each person entitled to share in the intestate estate,267 unless the court directs otherwise if it considers that giving the notice is unnecessary, unreasonable or impracticable in the circumstances.268 An election may be revoked at any time preceding the transfer of the property to the spouse, albeit by written notice to the same persons as the notice of election.269 The personal representative must obtain a valuation from a registered valuer of property that a spouse elects to acquire, or over which the spouse requests a valuation to enable him or her to decide whether to elect to acquire it,270 and supply a copy of the valuation to the spouse and to the other beneficiaries

entitled to share in the intestate estate.271 The requirement to obtain a valuation may be waived with the consent of all those beneficiaries.272 The price for which a spouse may elect to acquire the property is its market value as at the date of the intestate’s death.273 That price is satisfied first from money to which the spouse is entitled from the intestate estate and, if that is insufficient, from money paid by the spouse to the estate on or before the date of transfer.274 If the spouse and the holder of a security over the property agree to the assumption by the spouse of the liability so secured, the price is to be reduced by the amount of that liability. The spouse then takes the property subject to the security and, on the transfer of the property, the liability passes to the spouse and the estate is exonerated from it.275

Limitation on right of personal representative to sell interest in property 9.62 The personal representative(s) must not dispose of property from the intestate estate (except to a spouse who has elected to acquire it) unless:276 • the personal representative is the spouse entitled to make the election; • the time for exercising the election has elapsed and no election has been made; • the election requires the court’s authorisation, but the necessary authorisation has been refused or the application for authorisation has been withdrawn; • the spouse has notified the personal representative(s), in writing, that he or she does not propose to exercise the right to acquire property from the estate; • sale of the property is required to meet funeral and administration expenses, debts and other liabilities of the estate; or • the property is perishable or likely to decrease rapidly in value. In any case, a transaction entered into contrary to the aforesaid is not invalid for that reason.277 [page 274]

Queensland Election to acquire shared home 9.63 If an intestate has an interest in a shared home278 that is not effectively disposed of by a will (whether or not the intestate leaves a will), and at the time of the intestate’s death, his or her spouse279 ordinarily resided in that home, the spouse may, by written notice, elect to acquire the intestate’s interest in the shared home at transfer value.280 If the spouse is a personal representative, the election must be made within 3 months of his or her appointment as personal representative. It must be given to each other personal representative or, if the spouse is the sole personal representative, to the registrar of the court.281 Otherwise, it must be made within 3 months of the personal representative giving the spouse a written notice noting the right to elect and that, in certain circumstances, the spouse must first obtain a court order allowing the election to be made.282 In this event, the election must be given to the personal representative.283 To enable a decision whether to make an election, the spouse may ask the personal representative to obtain a valuation of the intestate’s interest in the shared home from a registered valuer, and supply a copy of it to the spouse.284 An election may only be revoked with the personal representative’s written consent.285 9.64 If a spouse is entitled to make an election to acquire an intestate’s interest in a shared home, the personal representative must not sell or otherwise dispose of the intestate’s interest in that home if the time within which the election may be made has not ended, or contrary to an election.286 But a disposal of the intestate’s interest in the shared home in contravention of the foregoing does not affect the validity of the disposal.287 And this restriction does not, in any case, prevent an intestate’s interest in the shared home being disposed of as a last resort to pay a liability of the intestate.288

Restriction on right to elect to acquire shared home 9.65

The spouse’s election is dependent on a court order if:289

• the shared home forms part of a building, and the deceased’s estate

includes an interest in the whole of the building; [page 275] • the shared home forms part of a registered or registrable interest in land, and the deceased’s estate includes an interest in the whole of that interest, and part or all of the land is used for agricultural purposes; • the shared home forms part of a building used as a hotel, motel, boarding house or hostel at the date of the intestate’s death; or • part of the shared home was used for other than domestic purposes at the date of the intestate’s death. The time frames for a spouse’s application align with those applicable to the election itself.290 The court may make the order only if it is satisfied the spouse’s acquisition of the intestate’s interest in the shared home is not likely to substantially diminish the value of the assets in the deceased’s estate, or make disposal of the assets substantially more difficult.291 If the court makes an order allowing an election, the time for making the election is extended until 1 month after the order is made.292

Acquisition of shared home under election 9.66 If a spouse makes an election to acquire an intestate’s interest in a shared home at transfer value, on payment of the transfer value (adjusted on an equitable basis to apportion any outgoings paid or payable, or rent or other amount received, that are ordinarily adjusted on sale) the spouse is entitled to transfer of the intestate’s interest.293 But before payment of the transfer value, the transfer documentation must be properly stamped under the Duties Act 2001 (Qld) at the spouse’s expense,294 and the spouse is not entitled to a discharge of any mortgage, charge, encumbrance or lien over the intestate’s interest in the shared home.295 At his or her option, money that may at the time of transfer be distributed to the spouse from the deceased’s estate (whether under a will or on intestacy) may be set off to reduce the amount of the transfer value.296 The ‘purchase rule’ — which proscribes a trustee from purchasing trust property — is ousted in

this context, as the legislation states that a spouse may acquire an intestate’s interest in a shared home even if he or she is a personal representative of the intestate.297

South Australia Election to take dwellinghouse 9.67 The South Australian statute likewise makes provision for a spouse or domestic partner of the intestate to elect to purchase the dwellinghouse298 in which he or she was residing at the date of the intestate’s death.299 An election must occur within 3 months of the administrator serving a notice requiring the spouse or domestic partner to make the election or, if the latter is an administrator of the intestate estate, within 3 months of the date on which the court granted administration of the estate.300 In each case, though, the court may extend time. An election [page 276] must be furnished in writing to the administrator or, if the spouse or domestic partner is an administrator, to the Public Trustee.301 Upon making an election, the amount to which the spouse or domestic partner is entitled out of the intestate estate is reduced by the value302 of that interest. If the latter exceeds the amount to which the spouse or domestic partner is entitled out of the intestate estate, he or she must, on making the election, pay into the intestate estate the difference.303 The ‘purchase rule’ does not preclude a spouse or domestic partner who is an administrator of the intestate estate acquiring an interest in the dwellinghouse.304 9.68 In Public Trustee v O’Donnell,305 where the dwellinghouse was situated on a 175 hectare perpetual Crown lease, an issue was whether the spouse could elect to purchase the entire leasehold interest, or instead whether the ‘interest in a dwellinghouse’ to which the Act referred should be construed more narrowly. Gray J favoured a broad reading of the relevant language, reasoning

that the provisions in question served beneficial purposes including minimising disruption to the lives of those who survive the intestate, furthering the continuity of the lifestyle for the remaining family, and acknowledging the central importance of the matrimonial home — which may be a home on a rural rather than suburban property — in the life of the surviving spouse.306 This led his Honour to conclude as follows:307 In my view, in the context of [the relevant legislation] … the reference … to a spouse’s right to acquire an ‘interest in a dwellinghouse’ prima facie includes a right to acquire a proprietary leasehold interest in both the dwellinghouse and the land on which it is immediately affixed. This is supported by the deliberate use of the expressions ‘interest in a dwellinghouse’ and ‘that interest’ … which serve to confirm the scope of the interest.

As a matter of construction, Gray J rejected the submission that the word ‘interest’ should be read down by reference to the word ‘curtilage’ in the inclusive definition of ‘dwellinghouse’. In any case, consistent with the beneficial construction approach, his Honour preferred a ‘broad and expansive’ interpretation of the term ‘curtilage’,308 to include land that serves the purpose of the building and contributes to the enjoyment of the building for the fulfilment of its purpose.309 He envisaged, moreover, that the scope of the curtilage in a rural setting ‘might be expected to be larger than that which might apply in an urban context’.310 Gray J conceded that, had he been confined to considering only ‘curtilage’, even on a broad construction it would not have included the entire 175 hectare property, but only the 40 hectares of land comprising the dwellinghouse and its surrounds (within which existed the provisions for electricity supply, water and wood storage, the linked shedding, the natural waterways, and the wooded areas that comprised the habitat for indigenous fauna).311

Limitation on right of personal representative to sell interest in dwellinghouse 9.69 If an intestate’s spouse or domestic partner, at the date of the intestate’s death, resided in a dwellinghouse, and an interest therein forms part of the intestate estate, the administrator of the intestate estate must not dispose of the interest unless the dwellinghouse has ceased to [page 277]

be the ordinary place of residence of the spouse or domestic partner, or the period within which the spouse or domestic partner is entitled to elect to acquire the dwellinghouse has elapsed.312

Victoria 9.70 If a person dies intestate as to an interest in the person’s shared home — meaning the principal place of residence of an intestate and the intestate’s partner313 at the time of the intestate’s death314 — the partner may elect to acquire the interest at its value at the date of the intestate’s death.315 The election must be made within 3 months of the partner being notified by the personal representative of this right316 or, if the partner is a personal representative, within 3 months of the grant of administration.317 In the latter event, the election must be given in writing to the registrar; otherwise it must be given to the personal representative who sent the notice.318 If an intestate is also survived by a child or other issue, the notice and any election must show the sworn value of the intestate’s interest in the shared home at the time of the intestate’s death as fixed by a valuer.319 If the partner elects to acquire the intestate’s interest in the shared home, his or her share of the intestate estate is reduced by the value of the interest. If that value exceeds his or her share of the intestate estate, the partner must pay the difference into the estate.320 That the partner is a trustee of the estate, or a minor, does not preclude the acquisition of the shared home.321 9.71 If a shared home is part of a larger property and the intestate’s interest in the shared home cannot be severed from the intestate’s interest in the larger property without subdividing that property, a reference to the shared home is a reference to that property.322 Despite the foregoing, if a shared home is part of a farm, a reference to the shared home is a reference to the entire farm.323 This serves to avoid the arguments raised before Gray J in Public Trustee v O’Donnell.324

Taking into Account Inter Vivos Gifts 9.72

In some jurisdictions the entitlement of a person otherwise eligible to

take under an intestacy may be reduced if that person received a benefit from the intestate within a set time period preceding the latter’s death. The statutory provisions to this effect continue the application of the doctrine known as ‘hotchpot’,325 being the process of assimilating property belonging to different persons so that it can be equally divided, after taking into account funds or property already received by those persons. In its historical application, originating in the English Statute of Distributions,326 hotchpot applied only vis-à-vis children of male intestates [page 278] and to total intestacies, and covered only benefits in the form of marriage settlements and advancements to establish children in their profession or business.327 The Australian statutory descendants are not so confined. 9.73 In the Australian Capital Territory, what a person, excepting the intestate’s partner,328 can take may depend on whether the intestate has given329 that person (or their partner)330 money or property within the 5 years preceding the intestate’s death. If so, the money or property, if it exceeds $10,000 in total, is taken to have been given in or towards satisfaction of the share that the person will become entitled to take (or would have become entitled to take had he or she survived the intestate) in the estate, unless a contrary intention appears from the circumstances of the particular case.331 In the Northern Territory, if an intestate has, within 5 years immediately before his or her death, made any gift to or for the benefit of his or her child (including by way of settling any money or property for the child), and that child (or issue of the child) is entitled to take a share of the intestate estate, the gift is taken to have been made in or towards satisfaction of the share that the child was entitled to take. This outcome yields to a contrary intention expressed or appearing from the circumstances, or if the value of the gift does not exceed $1000.332 The same applies in South Australia, albeit in relation to any person entitled to take other than a spouse or domestic partner of the intestate.333 The Victorian legislation goes further. It requires any child of the intestate

who has received any property, or any interest therein, by settlement of the intestate, or was advanced by the intestate in his or her lifetime, to bring that property, interest or advance into account in estimating any share to be taken in the distribution.334 9.74 Although advocates of hotchpot provisions maintain that they are based upon equitable principles — seeking to achieve the laudable aim of equality between beneficiaries — and are generally supported by an implied intention on the part of the intestate,335 it cannot always be assumed that, for instance, parents wish to benefit each of their children equally. Moreover, a parent who wishes an inter vivos gift to be in satisfaction of part or all of the child’s inheritance would ordinarily draft a will to this effect rather than rely on hotchpot rules, which are unlikely to be well known or understood by laypersons. The statutory family provision regime, in any case, remains as a backstop for those for whom adequate and proper provision is not made.336 For these reasons, inter alia, the National Committee for Uniform Succession Laws recommended against inclusion of hotchpot provisions in model legislation.337 The removal of existing provisions to this effect has, for the same reasons, also been recommended in Victoria.338 [page 279] 9.75 The doctrine of hotchpot, in whatever form, has been abolished in the remaining jurisdictions. In New South Wales and Tasmania, to this end, statute says that the distribution of an intestate estate is not affected by gifts made by the intestate to persons entitled during the intestate’s lifetime or, in the case of a partial intestacy, by will.339 In Queensland and Western Australia earlier statutory iterations of the doctrine have simply been repealed.340

Indigenous Persons’ Intestate Estates Backdrop 9.76

Most Aboriginal people in Australia die intestate, but the statutory

regimes for intestacy are based on a non-Aboriginal view of family and kinship, which in turn creates a serious mismatch between the legislative scheme and Aboriginal cultural expectations.341 This phenomenon has not escaped judicial attention, the Queensland Court of Appeal noting that ‘the designation of Aboriginal relationships such as mother, brother, sister and so on, may not necessarily be the same as those relationships in western society, which is evidently the criterion used as the basis for distribution on intestacy under the [relevant Act]’.342 But without statutory mandate, the court was bound to apply the law made by parliament, not ‘an inconsistent law of Aboriginal society’.343 This does not, however, preclude the court from approaching the exercise of any discretion with which it is statutorily vested in this regard against the backdrop of Aboriginal concepts of family.344 9.77 The New South Wales, Northern Territory and Tasmanian parliaments have responded to these issue(s) by enacting provisions in their intestacy legislation specific to Indigenous estates.345 Legislation purporting to govern Aboriginal affairs in Queensland is the repository for an alternative scheme dealing with property of intestate Aboriginals.346 The remaining jurisdictions make no dedicated provision to this end.

Dedicated intestacy rules New South Wales, Northern Territory and Tasmania 9.78 The intestacy legislation in these jurisdictions envisages that the personal representative (in the Northern Territory, a professional personal representative) of an Indigenous347 intestate (in the Territory, an intestate Aboriginal),348 or a person claiming to be entitled to share in an [page 280] intestate estate under the laws, customs, traditions and practices of the Indigenous community or group349 to which an Indigenous intestate belonged, can apply to the court for an order for distribution of the intestate estate (‘distribution order’).350 A distribution order operates, subject to its terms, to

the exclusion of all other statutory provisions governing the distribution of the estate.351 In the Northern Territory, scope for a distribution order is confined to the estate of an intestate Aboriginal who has not entered into a marriage that is a valid marriage under the Marriage Act 1961 (Cth).352 A scheme for distribution of the estate in accordance with those laws, customs, traditions and practices must accompany the application,353 which must be made within 12 months (6 months in the Northern Territory) of the grant of administration (or a longer period allowed by the court) but cannot be made after the intestate estate has been fully distributed.354 The New South Wales and Tasmanian provisions state that on making, or receiving notice of, an application, the personal representative must not distribute (or continue distributing) property comprised in the estate until either the application has been determined or the court authorises the distribution.355 In the Northern Territory the applicant must cause notice of the application to be served on each person who is an administrator of the intestate estate, and the court may, whether on application or of its own motion, order that notice of the application be served on such persons as the court thinks fit.356 The court may, on an application, order that the intestate estate (or part of it) be distributed in accordance with its order.357 In formulating an order the court must pay regard to the scheme for distribution submitted by the applicant, as well as the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged.358 But it must not make an order unless satisfied that its terms are, in all the circumstances, just.359 An order may require a person to whom property was distributed before the date of the application to return the property for distribution in accordance with its terms (but no distribution that has been, or is to be, used for the maintenance, education or advancement in life of a person who was totally or partially dependent on the intestate immediately before the intestate’s death can be disturbed).360

Queensland 9.79 Where an Aboriginal or Torres Strait Islander dies without a will, and it proves impracticable to ascertain the person(s) entitled in law to succeed to (any part of) his or her estate, statute in Queensland vests in the chief executive

authority to determine the person(s) [page 281] entitled to so succeed, and in what proportions.361 If there are no persons so entitled to succeed, the estate (or part thereof) vests in the chief executive, who must apply it or its proceeds for the benefit of Aboriginals or Torres Strait Islanders generally as prescribed.362

Determining the Existence of De Facto Relationship 9.80 As in all jurisdictions there is scope for a de facto spouse or partner of an intestate to take some (or even all) of the intestate’s estate,363 whether or not the intestate was in a de facto relationship at the time of his or her death can assume significance. It is also important because it may determine who is granted administration of the intestate’s estate; after all, the basic notion is that the right to administration follows interest,364 so that the person who has the greatest interest as a beneficiary in the estate is normally entitled to the grant.365 9.81 Statute in each jurisdiction, accordingly, defines a ‘de facto partner’, a ‘de facto relationship’, or the like. Yet unlike a legal marriage, the commencement and termination of which is easily determined by legal process, no equivalent certainty exists in temporal parameters of a non-marriage relationship. Courts are therefore left with drawing inferences from (often conflicting) evidence, to which the intestate cannot be a party. Most of the cases involve disputes over whether the relationship is in fact a de facto relationship or if the relationship, which was once a de facto relationship, has since come to an end. The parallel cases in the family provision context, which go to standing to seek provision, may assist,366 albeit less so as regards the termination of the relationship, as former de facto partners are generally granted standing to seek provision. 9.82 What underscores a de facto relationship has been described as a ‘mutual commitment to a shared life’.367 It is not essential that the parties

cohabit on a full-time basis, if there is nonetheless evidence of commitment of this kind, usually coupled with outward appearance and recognition of the parties as a couple. In Vaughan v Hoskovich,368 for example, the plaintiff and intestate chose to live together for a small part of each week, and the issue was whether the plaintiff was the intestate’s de facto spouse and thus entitled to the grant of letters of administration and ultimately to the estate. White J saw it as not inconsistent with persons merging their lives that for all practical purposes they live together as a married couple, adding that even married couples may live separately on weeknights, say, to be close to work. That the parties maintained separate residences and finances did not preclude a finding that they were in a de facto relationship. Apart from the fact that the relationship had endured for 14 years, only terminated by the intestate’s death, what influenced his Honour in so concluding were ‘the reputation and public aspects of the relationship, their attempts at having a child together, and the deceased’s being regarded as a stepfather by the plaintiff’s son’.369 That the relationship [page 282] in question, where it involves some cohabitation, is volatile or even punctuated by infidelity does not by itself deny its existence, especially if it is longstanding and public.370 Conversely, where the evidence reveals a failure to make a present mutual commitment to the relationship, and there is little evidence of public recognition of the parties as a couple, it is difficult to conclude that noncohabiting parties are in a de facto relationship. For instance, in Bennett v Morandin371 Bryson J formed the view that, although the intestate may have contemplated a long-term relationship with the plaintiff, he ‘did not fully or sincerely participate in mutual commitment’. Coupled with a finding that those who knew of the relationship ‘did not include close relatives of his among whom it could be expected that such a relationship would be known by reputation, and was not shown to include close relatives of hers either’, it led his Honour to refuse the plaintiff administration of the intestate’s estate.372 Similarly, where the relationship in question appears no more than a

commercial arrangement,373 or otherwise one of convenience,374 or evinces no more than friendship,375 it is difficult to conclude that it meets the criteria for a de facto relationship. 9.83 The cases indicate, to this end, that a de facto relationship is ‘a continuing course of conduct and behaviour, not an event at a fixed point of time’.376 And they reveal that the relevant inquiries should not be approached ‘on narrow, formal, pedantic or merely geographical criteria but should be considered taking into account the human reality of the personal, emotional and cultural complex’.377 This does not mean, however, that a court should strain to find a de facto relationship, or adopt any presumption in its favour. After all, a finding of an ongoing de facto relationship impacts on the property rights of others, and so should not flow in the absence of sufficient evidence, especially as the intestate cannot give evidence.378 Instead it means that set notions of what a de facto relationship necessarily entails do not circumscribe courts. 9.84 Where the dispute is over whether a de facto relationship has come to an end, the circumstances surrounding, and duration of, any separation between the parties may assume importance. Short separations for holidays or hospital stays are, by themselves, hardly likely [page 283] to evince any intention to terminate the relationship. Even a separation, though prompted by difficulties in the relationship, may not indicate such an intention if there was an intention to return, coupled with a reasonable indication of that intention.379 Accordingly, more than a mere physical separation is required for a de facto relationship to end. For this to be the outcome, the physical separation must be accompanied ‘by an intention on the part of either partner to permanently end the relationship’.380 This occurred in Moore v Smith,381 where, as a result of an altercation between the parties, the intestate’s de facto wife (the defendant) vacated the house they shared. McLelland CJ in Eq found that the intention clearly manifested by the defendant’s words and conduct, at the time

of and before departing from the house, ‘was to effect a permanent separation from the deceased’.382 The opposite result ensued in Dion v Rieser,383 where the physical separation of the parties, even though it amounted to 8 months at the intestate’s death and was between continents, did not evince any intention to end a relationship that had endured for over 20 years. The evidence, to the contrary, was that the parties had plans to reunite. As the intestate left no issue, and was a partner in no other de facto relationship, the intestate estate passed to his de facto wife.

1. 2.

3. 4. 5. 6. 7. 8.

9. 10. 11. 12.

13. 14.

See NSWLRC, Report 116, pp 5–6. Administration and Probate Act 1929 (ACT) Pt 3A; Succession Act 2006 (NSW) Ch 4 (before 1 March 2010, the Wills, Probate and Administration Act 1898 (NSW) Pt 2 Div 2A); Administration and Probate Act 1969 (NT) Pt III Divs 4, 4A, 5; Succession Act 1981 (Qld) Pt 3; Administration and Probate Act 1919 (SA) Pt 3A; Intestacy Act 2010 (Tas) (before 1 January 2011, Administration and Probate Act 1935 (Tas) Pt V); Administration and Probate Act 1958 (Vic) Pt I Div 6; Administration Act 1903 (WA) ss 12A–16. The jurisdictional abbreviations to legislation in this chapter are to the aforesaid Acts. ACT s 44; NSW s 102; NT s 61(1); SA s 72B(1); Tas s 5. The remaining jurisdictions do not define the term. ACT s 44; NSW s 102; NT s 61(1); Qld s 34(1) (which uses the term ‘residuary estate’); SA s 72B(1); Tas s 4. The remaining jurisdictions do not define the term. See Chapters 11–14. Lightfoot v Maybery [1914] AC 782 at 802 per Lord Shaw (dernier resort meaning last resort). Re Harvey (deceased) [1962] NZLR 524 at 527 per Woodhouse J. Lewis v O’Loughlin (1971) 125 CLR 320 at 330; BC7100370 per Menzies J; Fielder v Burgess [2014] SASC 98; BC201406394 at [50] per Kourakis CJ (noting that the presumption against intestacy may more readily be relied upon in the case of a ‘home-made’ will, presumably on the assumption that a professionally drafted will is more likely to accurately address the distribution of the deceased’s estate). See, for example, Butterworth v Woods [2010] WASC 176; BC201005196 at [47] per E M Heenan J. As to the judicial dispensing power to validate informal wills, see 4.30–4.52. [2013] SASC 18; BC201309064. Re Estate of Whelan (deceased) [2013] SASC 18; BC201309064 at [24]. Re Edwards [1906] 1 Ch 570 at 574 per Romer LJ; Fell v Fell (1922) 31 CLR 268 at 271; BC2200004 per Knox CJ; Re Harvey (deceased) [1962] NZLR 524 at 527 per Woodhouse J; Re Estate of Tkaczuk (deceased) (2004) 90 SASR 515; [2004] SASC 413; BC200408518 at [21] per Duggan J. Andrews v National Trustees Executors and Agency Co of Australasia Ltd (1936) 56 CLR 1 at 14; BC3700073 per Dixon J. Arnott v Kiss [2014] NSWSC 1385 at [42] per Hallen J. See also Duffield v Duffield (1829) 3 Bl NS 260 at 331; 4 ER 1334 at 1358 per Lord Eldon; Hickling v Fair [1899] AC 15 at 27 per Lord Shand; Re Melbourne [2016] VSC 514; BC201607330 at [29] per McMillan J.

15. 16. 17.

18. 19. 20. 21.

22. 23. 24.

25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36.

37.

Public Trustee v Bennett [2004] NSWSC 955; BC200406969 at [23] per Gzell J. Arnott v Kiss [2014] NSWSC 1385 at [43] per Hallen J. This is not to overlook suggestions that intestacy law could be reformed by conferring upon the court a power to vary the general rules of intestacy: see, for example, Re Estate Wilson (deceased) [2017] NSWSC 1; BC201700081 at [189] per Lindsay J; South Australian Law Reform Institute, Cutting the Cake: South Australian Rules of Intestacy, Issues Paper 7, December 2015, p 149 (‘It could be argued that it is less objectionable for the court to have discretion to alter the effects of one size fits all intestacy rules in a particular case than to have discretion to over-ride the express and probably considered wishes of a person who has taken the trouble to make a will’). The point is made explicity in the Queensland and South Australian legislation: Qld s 34(3); SA s 72N. As to the making of family provision orders, see Chapter 20. Rojtarowski v Rojtarowski [2009] VSC 15; BC200900315 at [27] per Bongiorno J. See Pickering v Stamford (1797) 3 Ves 492 at 494; 30 ER 1121 at 1122 per Loughborough LC. Where the negative direction purports to exclude all next of kin entitled under intestacy, the courts treated it as nugatory, ‘for then there could be no one in whose favour the exclusion could operate’: Lett v Randall (1855) 3 Sm & G 83 at 89; 65 ER 572 at 575 per Stuart VC. Lett v Randall (1855) 3 Sm & G 83 at 89–90; 65 ER 572 at 575–6 per Stuart VC; Bund v Green (1879) 12 Ch D 819; Re Wynn (deceased) [1983] 3 All ER 310 at 313–14 per Warner J. J A Heaton, ‘The Intestate Claims of Heirs Excluded by Will: Should “Negative Wills” be Enforced?’ (1985) 52 U Chi L Rev 177 at 193. Uniform Probate Code (US), §2–101(b) (which empowers a testator, by will, to expressly exclude or limit the right of an individual or class to succeed to the testator’s property passing by intestate succession, and to this end deems the share to which that person would otherwise have received upon intestacy as having been disclaimed). (1918) 19 SR (NSW) 10 at 15–16. Muir v Archdall (1918) 19 SR (NSW) 10 at 16. Re Estate of McMullen (2014) 12 ASTLR 114; [2014] ACTSC 53; BC201402333 at [39] per Mossop M. Re Estate of McMullen (2014) 12 ASTLR 114; [2014] ACTSC 53; BC201402333 at [41] per Mossop M. See 11.83. See 10.43. See 7.42–7.46. See ACT s 38A; Probate and Administration Act 1898 (NSW) s 61 (NSW Trustee); NT s 49; Qld s 45(1); SA s 45; Administration and Probate Act 1935 (Tas) s 12 (the Chief Justice); Vic s 19 (State Trustees); Public Trustee Act 1941 (WA) s 9. See 11.71. ACT s 45; NT s 62; SA s 72C; Vic s 38(1) (see also s 53(b) in the context of partial intestacy); WA s 13(1). Qld s 38. ACT ss 38A, 39; NT ss 49, 52; Qld s 45(1), (2); SA s 45; Vic s 19 (State Trustees); Public Trustee Act 1941 (WA) s 9. W Goodhart, ‘Disclaimer of Interests on Intestacy?’ [1976] Conv 292 at 294. Cf J L Pinkerton, ‘Disclaimer of Interests on Intestacy — Some Thoughts from Northern Ireland’ [1978] Conv 213 at 220. NSW s 139(a); Tas s 40(a). Cf Administration Act 1969 (NZ) s 81, which preserves the right to disclaim, but requires that it be exercised within 1 year of the grant of administration (unless the court extends time), and denies it effect if, inter alia, the beneficiary has taken steps inconsistent

38.

39. 40. 41. 42. 43. 44. 45.

46. 47. 48. 49. 50. 51. 52. 53.

54.

55. 56. 57.

with a purported disclaimer or is bankrupt at the time of the disclaimer. In the latter event, the beneficiary is ‘deemed to have accepted the disclaimed interest’ and the disclaimer is ‘deemed to be a transfer of the disclaimed interest by the [beneficiary] to the person or persons who become entitled thereto in consequence of the disclaimer’: Administration Act 1969 (NZ) s 82(1). (1990) 56 SASR 1 at 10. In Carmody v Anstee (2001) 49 ATR 1; [2001] QSC 93; BC200101505 at [30] Mackenzie J noted that it was not disputed that a benefit under an intestacy could be disclaimed (citing Simmons). Cf the position in the United Kingdom, where s 33 of the Administration of Estates Act 1925 (UK) provides that, on the death of an intestate person, his or her estate ‘shall be held in trust by his personal representatives with the power to sell it’, which in turn suggests an equitable interest vesting immediately in the ‘beneficiaries’ of the intestate estate, and thereby no ability to disclaim. Estate of Simmons (deceased) (1990) 56 SASR 1 at 11. Pursuant to the duties laid down in ACT s 43; NSW s 48; NT s 60; Qld s 49(1) (refers to powers); SA s 46(2); Tas s 5(1); Vic s 14; WA ss 11, 12: see 11.69. Estate of Simmons (deceased) (1990) 56 SASR 1 at 12 per Legoe J. As to family provision claims, see Part III. Estate of Soukup (1997) 97 A Crim R 103 at 107; BC9705280 per Gillard J. As to the forfeiture rule, see 7.47–7.70. Re Crippen [1911] P 108 at 111 per Evans P. See Forfeiture Act 1991 (ACT); Forfeiture Act 1995 (NSW), discussed at 7.68–7.70. Estate of Soukup (1997) 97 A Crim R 103 at 113–15; BC9705280 per Gillard J (where the statutory beneficiary under the intestacy rules killed his elderly wife by strangling, and pleaded guilty to manslaughter, the forfeiture rule applied; his Honour noted, in so ruling, that there was ‘no suggestion that his actions in causing the death were anything other than deliberate, intentional and unlawful’: at 117–18). See also Re DWS (deceased) [2001] Ch 568 (involving the murder of intestate parents). Rex v Skinner [1972] 1 NSWLR 307 at 309–10 per Sugerman P, with whom Asprey JA and Hardie AJA concurred; Estate of Simmons (deceased) (1990) 56 SASR 1 at 14–15 per Legoe J. NSW s 139; Tas s 40. As to the backdrop to these provisions, see NSWLRC, Report 116, pp 205– 10. As to the lapse rule, see 7.13–7.22. NSW s 108(1); Tas s 9(1). NSW s 107(1); Tas s 8(1). The same has been recommended in Victoria: VLRC, 2013, recommendations 14, 15. Qld s 35(2). SA s 72E. Desmarchelier v Stone [2005] 2 Qd R 243; [2004] QSC 458; BC200408956 at [8] per Moynihan J; Donald v Guillesser [2016] 1 Qd R 583; [2015] QCA 92; BC201504243 at [14] per Morrison JA, with whom Gotterson and Philippides JJA concurred. The Northern Territory addresses this issue by statutory provision stating that, where an intestate and his or her spouse or de facto partner died in circumstances rendering it uncertain which of them survived the other, the intestacy rules apply, as to the persons entitled to the intestate estate, as if the spouse or de facto partner had not survived the intestate: NT s 64. NSWLRC, Report 116, p 191. Cf Uniform Probate Code (US) §2–104 (which applies a 120-hour rule in this context). NSWLRC, Report 116, p 8. The move to extend intestacy entitlements to same-sex partners has seen more confined

58.

59.

60.

61.

62.

implementation in the United States: see C A Hammerle, ‘Free Will to Will? A Case for the Recognition of Intestacy Rights for Survivors to a Same-Sex Marriage or Civil Union’ (2006) 104 Mich L Rev 1763. The term ‘issue’ in this context encompasses illegitimate and adopted children but not stepchildren: see 9.23–9.25. Except where potentially countenanced under dedicated intestacy rules for Indigenous persons’ estates (which operate in New South Wales, the Northern Territory and Tasmania: see 9.76–9.79; see, for example, Re Estate Wilson (deceased) [2017] NSWSC 1; BC201700081 at [71]–[74], [179] per Lindsay J), nor does it extend to a person who, not being a child of the intestate, is arguably perceived as in a parent—child relationship for the purposes of Aboriginal tradition: Eatts v Gundy [2015] 2 Qd R 559; [2014] QCA 309; BC201410059 at [36] per Fraser JA, with whom Muir JA and Martin J concurred (remarking that in the absence of any definition or even any reference in the legislation to Aboriginal tradition, the well-understood terms ‘child’ and ‘issue’ ‘are not open to a construction which comprehends a biological nephew of an intestate on the basis that, in accordance with an Aboriginal tradition, the nephew is treated as a child of the deceased’). Note the suggestion that, with ageing populations, there is some basis in policy to include surviving (at least dependent) parents earlier in line of benefit for this purpose: M Boehringer, ‘Intestate Succession for Indigent Parents: A Modest Proposal for Reform’ (2013) 45 U Tol L Rev 121. In the event that the court cannot be certain that all eligible relatives have been identified for this purpose, it may order that an advertisement be published calling for potential claimants, specifying that those who do not come forward and substantiate their claim will be excluded from the benefit of any subsequent order of the court: West v Weston (1998) 44 NSWLR 657 at 662; BC9804351 per Young J. An alternative approach is for the court to order the distribution of the estate to persons known to be entitled but without prejudice to the entitlement of any other eligible persons, who later might be located or identified, to then make a claim and be entitled to trace the funds that had been distributed (known as a ‘Benjamin order’, after the order made by Joyce J in Re Benjamin [1902] 1 Ch 723): see, for example, Application of Marais [2009] NSWSC 206; BC200902330; Application by NSW Trustee and Guardian (2013) 12 ASTLR 148; [2013] NSWSC 1683; BC201314855; Re NSW Trustee and Guardian [2015] NSWSC 1529; BC201509971; cf Application by NSW Trustee and Guardian [2016] NSWSC 1436; BC201608621 (where a Benjamin order was refused by virtue of continuing uncertainty as to the existence of another beneficiary to take); and see generally Williams, Mortimer and Sunnucks, pp 1269–70. Another alternative is for the court to make an order for distribution, to the prejudice of any unknown claimant, if it is nonetheless satisfied that the evidence shows that at least the substantial majority of the beneficiaries have been ascertained, and that there are no further reasonable inquiries that should be made and which would be likely to identify any further beneficiaries: see, for example, Re Estate of Meyerstein (2009) 4 ASTLR 180; [2009] VSC 564; BC2009011189 (applying the approach suggested by Young J in West v Weston (1998) 44 NSWLR 657 at 664; BC9804351). The Tasmanian Law Reform Commission has opined that ‘most people would prefer their estate to go to charity than to the Crown, given that no close family exist at the time of their death’ (Succession Rights on Intestacy, Report 43, 1985, p 15), which in turn may be a justification to let bona vacantia estates go to a charity rather than to the Crown. However, the National Committee for Uniform Succession Laws rejected any such recommendation, reasoning that ‘any scheme to apply intestate estates to “charitable purposes”, in the absence of a body to administer it, would be unworkably broad and it would not be possible to achieve agreement on anything more specific, such as a particular charity’: NSWLRC, Report 116, p 179. See NSWLRC, Report 116, pp 170–1, 176–7.

63.

64. 65. 66. 67. 68. 69.

70. 71.

72.

73. 74.

75. 76.

77.

This accords with what has been described as the ‘presumed will theory’, namely that ‘the rules of intestacy distribute property according to the objects of the decedent’s natural affection and consequently fulfill the presumed wishes of the decedent’: R J Scalise, ‘Honor Thy Father and Mother? How Intestacy Law Goes Too Far in Protecting Parents’ (2006) 37 Seton Hall L Rev 171 at 173. As this article notes (at 175), in the United States intestacy rules are also grounded in ‘duty theory’, which focuses on what the deceased’s intention should have been, and to this end prefers ‘those who are more apt to be dependent on the decedent’. The latter has limited relevance in Australian (and English) intestacy law because its mischief is addressed by family provision schemas. Cf C A Yzenbaard, ‘Intestate Property Distribution at Death in the United States’ in W Barr (ed), Modern Studies in Property Law, Vol 8, Hart Publishing, Oxford, 2015, p 177 (who advocates a discretion in the court to make additional provision for dependants in the event of intestacy, which though based loosely on family provision legislation would be confined to intestacy, so as not to upset the expression of testamentary intention). See 15.18–15.21. See 9.60–9.62. See 9.72–9.75. See 9.76–9.79. As de facto relationships are not generally the subject of legal documentation, the case law reveals some litigation over the existence of such a relationship. The relevant considerations are therefore discussed separately: see 9.80–9.84. NSWLRC, Report 116, p 12. See also L W Waggoner, ‘The Multiple-Marriage Society and Spousal Rights Under the Revised Uniform Probate Code’ (1991) 76 Iowa L Rev 223 at 229–35; S M Cretney, ‘Reform of Intestacy: The Best We Can Do?’ (1995) 111 LQR 77. See, for example, C Shammas, M Salmon and M Bahlin, Inheritance in America from Colonial Times to the Present, Rutgers University Press, New Brunswisk (New Jersey), 1987, pp 184–5. For instance, there is, on the one hand, the increasing financial independence of women, who more commonly survive their male partner; on the other hand, there is the disproportionate increase in the cost of residential accommodation, which requires domestic partners to devote a greater proportion of their resources to fund. A concern has been expressed, to this end, that unless spouses and partners secure priority, there will occur a transfer of resources ‘from the retired to the working population at just the time when the former need them most’: Law Commission, Family Law: Distribution on Intestacy, Law Com No 187, 1989, para 23. NSWLRC, Report 116, p 38. The statutory legacy has been justified on two principal grounds: to ‘remove financial hardship and ensure that the spouse can continue living in the manner to which he or she has become accustomed; and to ‘take pressure off the surviving spouse to sell essential assets so that their proceeds may be distributed to the intestate’s children’: NSWLRC, Report 116, pp 63, 64 (which ultimately recommended that the statutory legacy be set at $350,000, subject to a mechanism to increase the amount on a regular basis to reflect inflation: p 70). The same has been recommended in Victoria: VLRC, 2013, recommendation 18. Hardingham, Neave and Ford, p 362. This, moreover, has been said to ‘follow what was considered to be the practice of the majority of testators’ and spares the surviving spouse or partner ‘from a potentially unseemly struggle with other beneficiaries over the ownership of particular items, for example, kitchenware, lawnmowers, and so on’, over which it may prove difficult to prove ownership: NSWLRC, Report 116, pp 54–5. See 9.56–9.71.

78.

79.

80. 81.

82. 83. 84.

85. 86. 87. 88. 89.

90. 91.

This had been a 1989 recommendation of the England and Wales Law Commission (see Family Law: Distribution on Intestacy, Law Com No 187, 1989, paras 28–46) but one that the Commission subsequently shied from (Intestacy and Family Provision Claims on Death, Law Com No 331, 2011, pp 29–33). See also S M Cretney, ‘Reform of Intestacy: The Best We Can Do?’ (1995) 111 LQR 77 (who accepts that the Law Commission’s 1989 recommendation has much to recommend it ‘in terms of achieving a simple code of succession law which would give effect to the intestate’s presumed wishes in the majority of cases’, but cautions that ‘social and economic changes have the consequence that such a code would lead to injustice in some cases’, namely those where the intestate has been married or cohabited more than once, and remains unconvinced by the Law Commission’s solution to rely on the discretionary power of the court to redistribute the estate so as to provide a reasonable share for a surviving spouse and reasonable maintenance for other dependants). See generally NSWLRC, Report 116, pp 39–52 (ultimately concluding that, while the option of giving everything to the surviving spouse in all cases has some attractions, principally on the grounds of simplicity, and conforms with practice in the majority of testate estates, it raised ‘genuine concern about the position of children of other relationships’, and so should not form the basis of model national legislation: pp 50–1). Namely where the wife’s title in the land was capable of testamentary disposition by her, the wife stood possessed of the land before her death, she had not already disposed of the land, and no child capable of inheriting the land had been born to the marriage. Namely where the husband’s title in the land was capable of capable of testamentary disposition by him, and the husband had possession of the land before his death. For a discussion of the doctrines of curtesy and dower see Marshall v Smith (1907) 4 CLR 1617; BC0700019. ACT s 48; NSW s 52; NT s 65; SA s 46(3); WA s 16. See also Administration of Estates Act 1925 (UK) s 45(1)(c), (d). Intestacy Act 1877 (Qld) s 28; Conveyancing and Law of Property Act 1884 (Tas) s 89; Dower Abolition Act 1880 (Vic); Married Women’s Property Act 1884 (Vic) s 25. Parentage Act 2004 (ACT) s 38; Status of Children Act 1996 (NSW) s 5; Status of Children Act 1978 (NT) s 4; Status of Children Act 1978 (Qld) s 6; Family Relationships Act 1975 (SA) s 6; Status of Children Act 1974 (Tas) s 3; Status of Children Act 1974 (Vic) s 3; Administration Act 1903 (WA) s 12A(1). As to the common law position, see 8.52. Re Leach (deceased) [1985] 2 All ER 754 at 759 (CA). This may not preclude a stepchild from making application under family provision legislation: see 18.45–18.49. NSWLRC, Report 116, p 132 (and ultimately recommending that ‘[t]here should be no recognition for step-children of the intestate for reasons of simplicity and certainty’: p 133). Adoption Act 1993 (ACT) s 43; Adoption Act 2000 (NSW) s 95; Adoption of Children Act 1994 (NT) s 45; Adoption Act 2009 (Qld) ss 214–218; Adoption Act 1988 (SA) s 9; Adoption Act 1988 (Tas) s 50; Adoption Act 1984 (Vic) s 53; Adoption Act 1994 (WA) s 75. NSW s 109; Tas s 10. Cf Public Trustee v Kehagias [2009] NSWSC 972; BC200908502 (where McLaughlin AsJ was not convinced that an ‘adoption’ occurring outside Australia under foreign law was an adoption for the purposes of the relevant Australian adoption legislation, and thus did not translate to intestacy entitlements within Australia). Re Estate Wilson (deceased) [2017] NSWSC 1; BC201700081 at [71]–[74], [179] per Lindsay J. As to these dedicated indigenous intestacy provisions, see 9.78. ‘Parentage order’ means a parentage order, or an interstate parentage order, within the meaning of the Surrogacy Act 2010 (NSW): NSW s 109A(2).

92. 93. 94. 95. 96.

97. 98. 99. 100.

101. 102.

103. 104.

105. 106. 107. 108. 109. 110.

111. 112.

NSW s 109A(1). ACT s 46(1); NT s 63(1). ACT s 46(2); NT s 63(2). ACT s 46(3); NT s 63(3). NSW s 138; Tas s 39. As to the backdrop to these provisions, see NSWLRC, Report 116, pp 198– 204 (which favoured an immediate vesting in this context for reasons of certainty and simplicity, to ‘ensure that children of an unmarried minor who dies after the intestate but before he or she turns 18 or marries, will be entitled, by representation, to the share of the deceased parent’: p 204). ACT s 44A; NT s 61(2)(b); Qld s 34(2); SA s 72B(2); Vic s 52(1)(f)(vii); WA s 12B. Watts v Crooke (1690) Show 108; 1 ER 74. An intestate’s ‘partner’ is either of the following: (a) the spouse or civil partner of the intestate when the intestate died; (b) the eligible partner of the intestate: ACT s 44. As to the meaning of ‘civil partner’ and ‘eligible partner’, see 9.32. The ‘value’ of an intestate estate is ascertained by deducting from its gross value an amount equal to such of the debts and liabilities of the estate, the funeral and testamentary expenses, the costs and expenses of administering the estate and the estate duties, probate duties and death duties payable in relation to the estate as are payable out of that intestate estate: ACT s 49(3). Plus interest, calculated at the rate of eight per cent per annum, between the date of the intestate’s death and the date that the sum is paid or appropriated to the partner. ACT s 49D(3)(a). If the value the partner acquires testamentarily exceeds $200,000: (i) the partner is entitled to be paid out of the intestate estate a sum equal to, if one child or the issue of one child of the intestate but no other issue of the intestate survives the intestate, one-half of the value of the intestate estate or, in any other case, one-third of the value of the intestate estate; and (ii) the issue of the intestate are entitled to the balance of the intestate estate after payment to the partner of the sum to which the partner is entitled under subparagraph (i): ACT s 49D(3)(b). Namely, one-half if only one child, or that child’s issue, of the intestate survives the intestate, but otherwise one-third. ‘Personal chattels’, in relation to an intestate, means: (a) the articles of household or personal use or adornment, plated articles, china, glassware, pictures, prints, linen, jewellery, clothing, books, musical instruments or apparatus, scientific instruments or apparatus, wines, liquors, consumable stores and domestic animals of the intestate; and (b) the motor cars and accessories of the intestate; but does not include: (c) any chattels of the intestate used exclusively for business purposes; or (d) money and securities for money of the intestate: ACT s 44. ACT s 49(2). ACT s 49A. ACT s 49B. ACT s 49D(5). ACT s 49(5). In this event, the Public Trustee must: (a) hold the intestate estate on trust for the Territory; and (b) at the end of 6 years from the date of death of the intestate: (i) in relation to so much of the estate as is not money — sell the estate and, after deducting from the proceeds of the sale all costs and charges lawfully due to the public trustee or any other person, pay the balance of the proceeds to the Territory; or (ii) in relation to so much of the estate as is money — after deducting all costs and charges lawfully due to the public trustee or any other person, pay the balance of the money to the Territory: ACT s 49CA. ACT s 49C. A ‘civil partnership’ is a legally recognised relationship that may be entered into by any two adults

113.

114. 115. 116.

117.

118.

119.

who live in the Australian Capital Territory — other than persons who are married or in an existing civil partnership, or where the relationship between them is a ‘prohibited relationship’ (see Civil Partnerships Act 2008 (ACT) s 6(2)) — regardless of their sex: Civil Partnerships Act 2008 (ACT) s 6. ‘Eligible partner’, of an intestate, means someone, other than the spouse or civil partner of the intestate, who: (a) was the intestate’s domestic partner when the intestate died; and (b) either: (i) had been the intestate’s domestic partner continuously for 2 or more years when the intestate died; or (ii) is the parent of the intestate’s child, if the child was under 18 years old when the intestate died: ACT s 44. ACT s 45A(1). For the meaning of ‘domestic partner’, see Legislation Act 2001 (ACT) s 169, discussed at 16.9, 16.10. In New South Wales, a party to a domestic partnership with the intestate immediately before the intestate’s death: NSW s 104. A ‘domestic partnership’ is: (1) a relationship between the intestate and another person that is a registered relationship, or interstate registered relationship, within the meaning of the Relationships Register Act 2010 (NSW); or (2) a de facto relationship that has been in existence for a continuous period of 2 years, or has resulted in the birth of a child: NSW s 105. ‘De facto relationship’ is defined in Interpretation Act 1987 (NSW) s 21C: see 16.15–16.18. In Tasmania, a specified relationship refers to: (1) a ‘registered personal relationship’, within the meaning of the Relationships Act 2003 (Tas), with the intestate; or (2) a ‘significant relationship’, within the meaning of the Relationships Act 2003 (Tas), with the intestate that had been in existence for a continuous period of at least 2 years, or had resulted in the birth of a child: Tas s 6; see generally Brownell v Robinson [2017] TASSC 5. For this purpose, in New South Wales the existence of the de facto relationship for a continuous period of 2 years ‘must occur immediately before the date of the intestate’s death because only then would one be able to establish that the applicant was a party to a domestic partnership with the intestate “immediately before the intestate’s death”’: Sadiq v NSW Trustee & Guardian [2015] NSWSC 716; BC201504868 at [190] per Hallen J (aff’d Sadiq v NSW Trustee & Guardian [2016] NSWCA 62; BC201602224). The Tasmanian provision, conversely, does not make it necessary for the continuous period of at least 2 years to occur immediately before the intestate’s death: Brownell v Robinson [2017] TASSC 5 at [57], [58] per Brett J. NSW ss 111, 112; Tas ss 12, 13. The New South Wales legislation states that a reference to an entitlement to ‘the whole of the intestate estate’ is a reference to so much of the estate as remains after payment of all such funeral and administration expenses, debts and other liabilities as are properly payable out of the estate: NSW s 103. See NSWLRC, Report 116, p 37 (referring to a survey of 548 wills proved in the New South Wales Probate Registry in 2004, which revealed that approximately 75 per cent of testators with a spouse and children chose to give the entire residue of their estate to their spouse, whereas only about 2 per cent shared the residue between spouse and children). ‘Personal effects’ of an intestate means the intestate’s tangible personal property except the following: (a) property used exclusively for business purposes; (b) banknotes or coins (unless forming a collection made in pursuit of a hobby or for some other non-commercial purpose); (c) property held as a pledge or other form of security; (d) property (such as gold bullion or uncut diamonds): (i) in which the intestate has invested as a hedge against inflation or adverse currency movements; and (ii) which is not an object of household, or personal, use, decoration or adornment; (e) an interest in land (whether freehold or leasehold): NSW s 101; Tas s 4. As a backdrop to this conception of ‘personal effects’, see NSWLRC, Report 116, pp 54–62.

120. NSW s 113; Tas s 14. 121. Namely the Consumer Price Index number for the last quarter for which such a number was published before the date on which the intestate died, over the Consumer Price Index number for the December 2005 (in Tasmania, December 2009) quarter: NSW s 106(2); Tas s 7(2). ‘Consumer Price Index number’, for a quarter, means the All Groups Consumer Price Index number, being the weighted average of the eight capital cities, published by the Australian Statistician in respect of that quarter: NSW s 106(9); Tas s 7(9). 122. NSW s 106(1); Tas s 7(1) (being interest at the relevant rate on the amount outstanding from time to time (excluding interest) from the first anniversary of the intestate’s death to the date of payment of the legacy in full; the ‘relevant rate’ of interest is the rate that lies 2 per cent above the cash rate last published by the Reserve Bank of Australia before 1 January in the calendar year in which interest begins to accrue: NSW s 106(5); Tas s 7(5)). The same has been recommended in Victoria: VLRC, 2013, recommendations 18, 20. 123. The qualifications are that: (1) amounts received, by way of statutory legacy, under any of the other relevant laws are taken to have been paid towards satisfaction of the spouse’s statutory legacy under the local Act; (2) if any of the relevant laws contain no provision corresponding to (1), no amount is payable by way of statutory legacy under the local Act until the spouse’s entitlement under that law is satisfied, or the spouse renounces the spouse’s entitlement to payment, or further payment, by way of statutory legacy, under that law: NSW s 106(3); Tas s 7(3). 124. NSW s 106(4); Tas s 7(4). 125. NSW ss 122–124; Tas ss 23–25. As to the backdrop to these provisions, see NSWLRC, Report 116, pp 110–17. 126. NSW s 125(1); Tas s 26(1). 127. NSW s 125(2); Tas s 26(2). 128. NSW s 125(3); Tas s 26(3). 129. NSW s 126(3); Tas s 27(3). 130. NSW s 126(4); Tas s 27(4). 131. As to the statutory legacy, see 9.34. 132. NSW s 124; Tas s 25. 133. NSW s 127(1); Tas s 28(1). 134. NSW s 127(2); Tas s 28(2). As to spousal entitlements in this context, see 9.34, 9.35. 135. NSW s 127(3); Tas s 28(3). 136. NSW s 127(4); Tas s 28(4). 137. NSW s 128(1); Tas s 29(1). 138. NSW s 129(1), (2); Tas s 30(1), (2). 139. NSW s 129(3); Tas s 30(3). 140. NSW s 130(1); Tas s 31(1). 141. NSW s 131(1), (2); Tas s 32(1), (2). 142. NSW s 131(3); Tas s 32(3). 143. NSW s 132; Tas s 33. 144. NSW s 136; Tas s 37. 145. The Minister may grant a waiver on conditions he or she considers appropriate: NSW s 137(2) (application for a waiver is to be made in writing to the Crown Solicitor: NSW s 137(3)); Tas s 38(2). 146. NSW s 137(2); Tas s 38(1). 147. NT s 66(1). 148. The Northern Territory is unique in extending the concept of a ‘spouse’ beyond a person who is validly married under the Marriage Act 1961 (Cth), to include ‘an Aboriginal or Torres Strait

149. 150.

151.

152. 153.

154. 155. 156. 157.

158.

159. 160. 161.

Islander to whom the person is married according to the customs and traditions of the particular community of Aboriginals or Torres Strait Islanders with which either person identifies’: Interpretation Act 1978 (NT) s 19A(1). ‘De facto partner’ is defined in the De Facto Relationships Act 1991 (NT) s 3(1): see 16.13. See NT Sch 6 Pts I (‘manner of distribution where intestate is survived by a spouse but not by any de facto partner’), II (‘manner of distribution where intestate is survived by a de facto partner but not by a spouse’), III (‘manner of distribution where intestate is survived by both a spouse and a de facto partner’), IV (‘manner of distribution where intestate is survived by neither a spouse nor a de facto partner’). The ‘value’ of the intestate estate is ascertained by deducting from its gross value an amount equal to such of the debts and liabilities of the estate, the funeral and testamentary expenses, the costs and expenses of administering the estate and the estate duties, succession duties and other duties and fees payable in relation to the estate as are payable out of that estate: NT s 66(3). Being the ‘prescribed amount’ for this purpose: see Administration and Probate Regulations 1983 (NT) reg 3(1). NT s 70(3)(a). If the value the spouse or de facto partner acquires testamentarily exceeds $350,000: (i) the spouse or de facto partner is entitled to be paid out of the intestate estate a sum equal to, if one child or the issue of one child of the intestate but no other issue of the intestate survives the intestate, one-half of the value of the intestate estate or, in any other case, one-third of the value of the intestate estate; and (ii) the issue of the intestate are entitled to the balance of the intestate estate after payment to the spouse or de facto partner of the sum to which the spouse or de facto partner is entitled under subparagraph (i): NT s 70(3)(b). NT s 68(1). NT s 70(6). Being the ‘prescribed amount’ for this purpose: see Administration and Probate Regulations 1983 (NT) reg 3(2). NT s 70(4)(a). If the value the spouse or de facto partner acquires testamentarily exceeds $500,000: (i) the spouse or de facto partner is entitled to be paid out of the intestate estate a sum equal to onehalf of the value of the intestate estate; (ii) if the intestate is survived by one or both of his or her parents (whether or not the intestate is also survived by a brother or sister or the issue of a brother or sister) — the surviving parent is entitled, or the parents are entitled in equal shares, as the case may be, to the balance of the intestate estate after payment to the spouse or de facto partner of the sum to which the spouse or de facto partner is entitled under subparagraph (i); and (iii) if the intestate is not survived by a parent — the brothers and sisters of the intestate who survive the intestate, and the issue who survive the intestate of a brother or sister of the intestate who died before the intestate, are entitled to the balance of the intestate estate, after payment to the spouse or de facto partner of the sum to which the spouse or de facto partner is entitled under subparagraph (i), in the shares in which he, she or they would have been entitled to the intestate estate if the intestate had not been survived by his or her spouse or de facto partner: NT s 70(4)(b). ‘Personal chattels’ means: (a) the articles of household or personal use or adornment, plated articles, china, glassware, pictures, prints, linen, jewellery, clothing, books, musical instruments or apparatus, scientific instruments or apparatus, wines, liquors, consumable stores and domestic animals of the intestate; and (b) the motor cars and accessories of the intestate; but does not include: (c) any chattels of the intestate used exclusively for business purposes; or (d) money and securities for money of the intestate: NT s 61(1). NT s 66(2). NT s 67(2), (3). NT s 66(5).

162. NT s 70. 163. Law of Property Act 2000 (NT) s 20(3). 164. ‘Residuary estate’ in relation to an intestate means: (a) in the case of an intestate who leaves a will — the property of the intestate that is not effectively disposed of by the will; or (b) in any other case — the property of the intestate, which is available for distribution after payment of all such debts as are properly payable out of the property: Qld s 34(1). 165. Qld s 35(1). 166. A person’s ‘spouse’ is his or her husband or wife, de facto partner (as defined in Acts Interpretation Act 1954 (Qld) s 32DA) or registered partner (defined in Acts Interpretation Act 1954 (Qld) Sch 1): Qld s 5AA(1) (as to which see 16.38). 167. Qld Sch 2, Pts I (‘intestate survived by spouse’), II (‘intestate not survived by any spouse’). 168. Qld s 36, which follows a similar schema to NSW s 125; Tas s 26, as to which see 9.35. 169. ‘Household chattels’ means all furniture, curtains, drapes, carpets, linen, china, glassware, ornaments, domestic appliances and utensils, garden appliances, utensils and effects and other chattels of ordinary household use or decoration, liquors, wines, consumable stores and domestic animals owned by the intestate immediately before the intestate’s death: Qld s 34A(1). It does not include a motor vehicle, boat, aircraft, racing animal, original painting or other original work of art, trophy, clothing, jewellery, or other chattel of a personal nature: Qld s 34A(2). A thing is taken to be ‘owned’ by the intestate even if: (a) it is owned subject to a charge, encumbrance or lien securing the payment of money; or (b) the intestate only held an interest in the thing as grantor under a bill of sale or as hirer under a hire-purchase agreement within the meaning of the Hire-purchase Act 1959 (Qld) s 2(1) or a corresponding provision of a law of another Australian jurisdiction: Qld s 34A(3). 170. Qld s 36(2). 171. Qld s 36A. 172. Qld s 35(1A). 173. Qld s 37(1). 174. Property Law Act 1974 (Qld) s 20(5). The Northern Territory provision is Law of Property Act 2000 (NT) s 20(3): see 9.43. 175. ‘Spouse’, in relation to a deceased person, means a person who was legally married to the deceased as at the date of his or her death: SA s 4. 176. ‘Domestic partner’, in relation to a deceased person, means a person declared under the Family Relationships Act 1975 (SA) to have been the domestic partner of the deceased as at the date of his or her death (see 16.42): SA s 4. 177. SA s 72G(1)(a). 178. The ‘value’ of an intestate estate is ascertained by deducting from its gross value an amount equal to: (a) the debts and liabilities of the intestate, funeral expenses, testamentary expenses, and costs of administering the estate, payable out of the intestate estate; and (b) where the intestate is survived by a spouse or domestic partner, the value of the personal chattels of the intestate: SA s 72F. It refers to the value of the estate or property as at the date of death of the intestate: SA s 72B(1). 179. Being the ‘prescribed amount’: SA s 72G(2). 180. SA s 72G(1)(b). 181. ‘Personal chattels’ in relation to an intestate means: (a) any articles of household or personal use or ornament that form part of his intestate estate; and (b) any motor vehicles that form part of his intestate estate; but does not include any chattels used for business purposes: SA s 72B(1). 182. SA s 72H(1). 183. SA s 72H(2). If a dispute arises between a surviving spouse and a domestic partner as to the division between them of personal chattels of an intestate, the administrator may sell the personal chattels and divide the proceeds of the sale equally between them: SA s 72H(3).

184. 185. 186. 187. 188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 200. 201. 202.

203. 204. 205. 206. 207. 208. 209. 210. 211. 212.

SA s 72G(1)(c). SA s 72I. SA s 72G(1)(d). SA s 72B(1). SA s 72J. SA s 72G(1)(e). As to disclaimer, see 7.42–7.46. Estate of Simmons (deceased) (1990) 56 SASR 1 at 16 per Legoe J. As to the forfeiture rule in this context, see 7.64, 7.65. Law of Property Act 1936 (SA) s 115 (upon application ‘in favour of any person to whom, or to a trustee for whom, His Majesty would, if His Majesty’s title had been duly proved by inquisition, have power to grant such land’: s 115(1)). The Bill inserts a new Pt IA (‘Intestacy’) into the Victorian Act (replacing the existing Vic ss 50–55). See VLRC, 2013, Ch 5. ‘Partner’ of a person who dies means the person’s spouse or domestic partner: Vic s 3(1). ‘Domestic partner’ means a registered domestic partner or an unregistered domestic partner of that person: Vic s 3(1). Vic s 51(1). The rate of interest is the rate fixed from time to time under Penalty Interest Rates Act 1983 (Vic) s 2 less 2.5 per cent: Vic s 51(3). Vic s 51(2). ‘Spouse’ of a person who dies means a person who was married to the person at the time of the person’s death: Vic s 3(1). ‘Registered domestic partner’ of a person who dies means a person who, at the time of the person’s death, was in a ‘registered domestic relationship’ with the person within the meaning of the Relationships Act 2008 (Vic): Vic s 3(1). ‘Registered caring partner’ of a person who dies means a person who, at the time of the person’s death, was in a ‘registered caring relationship’ with the person within the meaning of the Relationships Act 2008 (Vic): Vic s 3(1). There is a minimum requirement that the unregistered domestic partner lived with the intestate continuously for at least 2 years immediately before the intestate’s death, unless the domestic partner is the parent of a child of the intestate who was under 18 at the time of the intestate’s death: see definition of ‘unregistered domestic partner’ in Vic s 3(1). Vic s 51A(1). It has been recommended that registered caring partners should be entitled to inherit on intestacy in the same circumstances as spouses, registered domestic partners and unregistered domestic partners: VLRC, 2013, recommendation 17. Vic s 52(1)(f) (and proviso (ii)). Vic s 53(a). Vic s 52(1)(a)–(ea). Vic s 52(1)(f). Namely, the nearest blood relatives or those of the nearest degree of blood relation to the deceased: LexisNexis Australian Legal Dictionary, LexisNexis Butterworths, Australia, 2016, p 1039. Vic s 52(1)(f) (proviso (v)). Vic s 55. Financial Management Act 1994 (Vic) s 58(3)(a). ‘Household chattels’ means articles of personal or household use or adornment: WA s 14(2)(a). The limitation to ‘personal or household’ articles reflected a concern that a definition of personal

213. 214. 215. 216. 217. 218. 219. 220. 221. 222. 223. 224. 225. 226. 227. 228. 229.

230. 231. 232.

233.

234. 235.

236.

articles would include ‘such valuable items as a collection of diamonds … or a motor yacht’, which the surviving spouse should be allowed to purchase: Law Reform Commission of Western Australia, Distribution on Intestacy, Project No 34, Pt 1, Working Paper, December 1972, p 5. Calculated at the date of the death of the intestate: WA s 14(2)(b). Calculated in accordance with WA s 14(4). WA s 14(3). WA s 14(2b). Calculated in accordance with WA s 14(4). WA s 14(3a). Escheat is the power of the state to acquire title to property for which there is no owner. Pursuant to the Escheat (Procedure) Act 1940 (WA) s 8. Escheat (Procedure) Act 1940 (WA) s 9. ‘De facto partner’ is defined in Interpretation Act 1984 (WA) s 13A: see 16.54. WA s 15(1). As to a spouse’s entitlement, see 9.52–9.54. WA s 15(2). WA s 15(3). WA s 15(4). See 9.22. See 9.22. Although this outcome could have been achieved via a statutory life estate, this vehicle has fallen into disfavour due chiefly to its inflexibility (where, for instance, a sale of some or all the property is necessary), costs and potential to create dispute over operating expenses: NSWLRC, Report 116, pp 80–1. Law Reform Commission of Tasmania, Succession Rights on Intestacy, Report 43, 1985, p 13. See 1.13. See, for example, Uniform Probate Code (US) §§2–201–2–214 (and see the discussion in L W Waggoner, ‘The Uniform Probate Code’s Elective Share: Time for a Reassessment’ (2003) 37 U Mich J L Reform 1). In the Australian Capital Territory, ‘partner’: see 9.30; in the Northern Territory, ‘spouse’ or ‘de facto partner’: see 9.39. The Western Australian legislation refers to a ‘surviving husband or wife’, but adds that, where a de facto partner is entitled to intestate property (WA s 15: see 9.55), then for the present purposes the de facto partner is to be taken to be a husband or wife, as is applicable: WA s 15(5). In the Northern Territory, the rules stated in the text do not apply to or in respect of the intestate estate of an Aboriginal who is survived by more than one spouse: NT s 72(2). In the Australian Capital Territory ‘dwelling house’ includes: (a) a garden or portion of ground attached to, and usually occupied with, a dwelling house, or otherwise required for the amenity or convenience of a dwelling house; and (b) a part of a building occupied as a separate dwelling: ACT s 49F. In the Northern Territory, the term used is ‘dwelling’, which is defined to include: (1) a unit or building lot under the Unit Titles Act 1975 (NT); (2) a unit under the Unit Title Schemes Act 2009 (NT); and (3) a part of a building that is designed for occupation as a permanent residence: NT s 72(1). In Western Australia, references to a ‘dwelling house’ include references to any garden or portion of ground attached to and usually occupied with the dwelling house or otherwise required for its amenity or convenience: WA Fourth Sch, cl 1(4). Where part of a building was, at the date of the death of the intestate, ordinarily occupied as a separate dwelling, that part of the building is, for this purpose, treated as a dwelling house: WA Fourth Sch, cl 1(3). In Western Australia, which ‘was ordinarily used by the surviving husband or wife as his or her

ordinary place of residence’. 237. Under Trustee Act 1925 (ACT) s 46; Administration and Probate Act 1969 (NT) s 81; Trustees Act 1962 (WA) s 30(1)(k). See 13.19, 13.20. 238. ACT s 49G(1); NT s 73(1); WA Fourth Sch, cl 1(1). In the Australian Capital Territory, if the partner is a person of unsound mind, a requirement or consent may be made or given on the partner’s behalf by his or her committee (if any) or, if there is no committee, by the court: ACT s 49N(1). Equivalent provision is made in the Northern Territory and Western Australia with minor differences in terminology: NT s 79(1); WA Fourth Sch, cl 8(1). A requirement or consent made or given by a surviving partner who is a child is as valid as it would be if he or she were at least 18 years old: ACT s 49N(2); NT s 79(2); WA Fourth Sch, cl 8(2). 239. Re Phelps (deceased) [1980] Ch 275. That this should be made explicit by statute is the recommendation found in N Crago, ‘The Rights of an Intestate’s Surviving Spouse to the Matrimonial Home’ (2000) 29 UWALR 197 (arguing that ‘the cash payment policy is preferable in working justice as between close family members in this type of case … because of the substantial effect of inflation upon property values seen in Australia historically, a fact of life that is unlikely to go away’: at 202). 240. See Tagliaferri v Tagliaferri [2013] WASC 321; BC201303296 at [49]–[52] per E M Heenan J. 241. ‘Representation’, in relation to an intestate, means probate of the will, or administration (including administration with the will of the intestate annexed) of the estate, of the intestate: ACT s 49F; NT s 72(1). The Western Australian legislation refers to ‘the first grant of administration of the estate of the intestate’: WA Fourth Sch, cl 3(1). 242. ACT s 49G(2); NT s 73(2); WA Fourth Sch, cl 3. In the territories the legislation adds that the court may extend time if: (a) probate of a will of the intestate has been revoked on the ground that the will was invalid; (b) a question whether a person had an interest in the estate of the intestate, or a question about the nature of an interest claimed in the estate of the intestate, had not been determined at the time when administration of the estate was granted or first granted; or (c) for any other reason affecting the administration or distribution of the estate, the court considers it proper to do so: ACT s 49G(3); NT s 73(3). 243. ACT s 49G(4); NT s 73(4); WA Fourth Sch, cl 4(1). 244. ACT s 49G(5); NT s 73(5); WA Fourth Sch, cl 4(2). 245. ACT s 49G(6); NT s 73(6); WA Fourth Sch, cl 4(3). The value of the interest of an intestate in a dwelling house is the amount determined by a qualified valuer engaged by the personal representatives of the intestate to be the market value of the interest: ACT s 49H; NT s 74; WA Fourth Sch, cl 5. 246. ACT s 49L(1); NT s 77(1); WA Fourth Sch, cl 6(2). 247. ACT s 49L(4); NT s 77(4); WA Fourth Sch, cl 6(5). 248. ACT s 49L(3); NT s 77(3); WA Fourth Sch, cl 6(4). 249. See Dal Pont, pp 675–8; Jacobs, pp 379–83. 250. ACT s 49M; NT s 78; WA Fourth Sch, cl 7(1). 251. ACT s 49J; NT s 75; WA Fourth Sch, cl 1(2). 252. ACT s 49K; NT s 76; WA Fourth Sch, cl 2. 253. ACT s 49L(2); NT s 77(2). Although no specific equivalent appears in the Western Australian legislation, the consequence is necessarily inferred. 254. NSW ss 114, 115(1); Tas ss 15, 16(1). 255. NSWLRC, Report 116, pp 82–6. The New South Wales and Tasmanian regime, to this end, has also been recommended for implementation in Victoria: VLRC, 2013, recommendations 23–28. 256. NSW s 115(2); Tas s 16(2). Acquisition of a single item from a group might, say, substantially

257. 258. 259. 260. 261. 262. 263. 264. 265. 266. 267. 268. 269. 270. 271. 272. 273. 274. 275. 276. 277. 278.

279. 280.

281. 282. 283.

diminish the value of the remainder of the group or make it substantially more difficult to dispose of the remainder of the group. Or acquisition of the farmhouse from a farming property might substantially diminish the value of the remainder of the farming property or make it substantially more difficult to dispose of it. NSW s 115(4); Tas s 16(4). NSW s 115(3); Tas s 16(3). NSW s 116(1); Tas s 17(1). NSW s 115(6); Tas s 16(6). NSW s 118(4); Tas s 19(4). NSW s 117(1); Tas s 18(1). NSW s 117(2); Tas s 18(2). The court might, for example, extend the period for making an election if the court’s authorisation for making the election is required or if a question remains unresolved regarding the existence, or the nature, of a person’s interest in the intestate estate. NSW s 117(3); Tas s 18(3). NSW s 115(7); Tas s 16(7). NSW s 118(1); Tas s 19(1). NSW s 118(2); Tas s 19(2). NSW s 118(3); Tas s 19(3). NSW s 118(5), (6); Tas s 19(5), (6). NSW s 119(3); Tas s 20(3). NSW s 119(4); Tas s 20(4). NSW s 119(5); Tas s 20(5). NSW s 119(1); Tas s 20(1). NSW s 120; Tas s 21. NSW s 119(2); Tas s 20(2). NSW s 121(1); Tas s 22(1). NSW s 121(2); Tas s 22(2). ‘Shared home’ means (part of) a building designed to be used solely or principally as a separate residence for one family or person: Qld s 34B(1). A ‘building’ includes a caravan and a manufactured home: Qld s 34B(2). An ‘interest’, in an intestate’s shared home, means: (a) an interest registered or registrable under an Act that is or includes a shared home; (b) if the shared home is a caravan — an interest in the caravan; or (c) if the shared home is a manufactured home — an interest in the manufactured home and any interest in a site agreement for the site on which the manufactured home is positioned: Qld s 34B(3). For the meaning of ‘caravan’ see Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 7; ‘manufactured home’ see Manufactured Homes (Residential Parks) Act 2003 (Qld) s 10; ‘site’ see Manufactured Homes (Residential Parks) Act 2003 (Qld) s 13; ‘site agreement’ see Manufactured Homes (Residential Parks) Act 2003 (Qld) s 14. A person’s ‘spouse’ is his or her husband or wife, de facto partner (as defined in Acts Interpretation Act 1954 (Qld) s 32DA) or registered partner (defined in Acts Interpretation Act 1954 (Qld) Sch 1): Qld s 5AA(1) (as to which see 16.38). Qld s 39A(1), (2). The ‘transfer value’, of an intestate’s interest in a shared home, means the market value of the interest at the date of the intestate’s death, less the amount (if any) needed to discharge any mortgage, charge, encumbrance or lien to which the interest may be subject at the time of transfer: Qld s 34B(4). Qld s 39A(4)(b), (4)(c). Qld s 39A(3). Qld s 39A(4)(a).

284. 285. 286. 287. 288. 289. 290. 291. 292. 293. 294. 295. 296. 297. 298. 299. 300. 301. 302.

303. 304. 305. 306. 307. 308. 309. 310. 311. 312. 313. 314. 315. 316. 317. 318. 319. 320. 321. 322.

Qld s 39A(5). Qld s 39A(7). Qld s 39D(1), (2). Qld s 39D(4). Qld s 39D(3). Qld s 39B(1), (2). Qld s 39B(4). Qld s 39B(5). Qld s 39B(6). Qld s 39C(1), (2). This has effect despite Duties Act 2001 (Qld) s 17(2) (‘Transfer duty imposed on another dutiable transaction must be paid by the parties to the transaction’): Qld s 39C(3A). Qld s 39C(3). Qld s 39C(4). Qld s 39C(5). ‘Dwellinghouse’ includes: (a) a part of a building occupied as a separate dwelling; or (b) the curtilage of a dwellinghouse: SA s 72B(1). SA s 72L(1). SA s 72L(2). SA s 72L(3). It does not appear that this requires a valuation for a licensed valuer; a recent and relevant valuation from the Valuer-General may suffice: Re Estate of Adam [2013] SASC 70; BC201309733 at [10] per Gray J. SA s 72L(4). SA s 72L(5). (2008) 101 SASR 228; [2008] SASC 181; BC200805230. Public Trustee v O’Donnell (2008) 101 SASR 228; [2008] SASC 181; BC200805230 at [78]. Public Trustee v O’Donnell (2008) 101 SASR 228; [2008] SASC 181; BC200805230 at [84]. Public Trustee v O’Donnell (2008) 101 SASR 228; [2008] SASC 181; BC200805230 at [92]. Public Trustee v O’Donnell (2008) 101 SASR 228; [2008] SASC 181; BC200805230 at [91]. Public Trustee v O’Donnell (2008) 101 SASR 228; [2008] SASC 181; BC200805230 at [105]. Public Trustee v O’Donnell (2008) 101 SASR 228; [2008] SASC 181; BC200805230 at [106]. SA s 72M(1)(b). ‘Partner’ of a person who dies means the person’s spouse or domestic partner: Vic s 3(1). ‘Domestic partner’ means a ‘registered domestic partner’ or an ‘unregistered domestic partner’ (as to which see 9.49) of that person: Vic s 3(1). Vic s 37A(1). Vic s 37A(2). The personal representative must, within 30 days of the grant of administration, give the partner that written notice: Vic s 37A(4). Vic s 37A(3). Vic s 37A(5). Vic s 37A(6). Vic s 37A(7) (to be paid before the distribution of the residuary estate or within 12 months of the making of the election, whichever is earlier). Vic s 37A(9). Vic s 37A(10).

323. 324. 325. 326. 327. 328. 329. 330.

331. 332. 333. 334. 335.

336. 337. 338. 339. 340. 341.

342.

343. 344. 345.

346.

Vic s 37A(11). (2008) 101 SASR 228; [2008] SASC 181; BC200805230, discussed at 9.68. Lempens v Reid (2009) 2 ASTLR 373; [2009] SASC 179; BC200905686 at [35] per Gray J. 22 & 23 Charles II c 10 s 5 (1670). See Hardingham, Neave and Ford, pp 432–40; I J Hardingham, The Law of Intestate Succession in Australia and New Zealand, Lawbook Co, Sydney, 1978, Ch 17. ACT s 49BA(3). ‘Given’ means money or property paid, transferred, assigned or settled (otherwise than for valuable consideration): ACT s 49BA(5). ‘Partner’ in this context means someone who: (a) is not entitled to a share in the intestate’s estate; (b) was the domestic partner of the entitled person at the time of the gift; and (c) either: (i) was the entitled person’s spouse or civil partner at that time; (ii) had been the entitled person’s domestic partner continuously for 2 or more years at that time; or (iii) was at that time the parent of a child of the entitled person, if the child was less than 18 years old at that time: ACT s 49BA(4). ACT s 49BA(1). NT s 68(3). SA s 72K(1). Vic s 52(1)(f) (proviso (i)). Cf Uniform Probate Code (US), §2–109(a), which searches for an actual intention to this end, by applying a modified hotchpot doctrine only if ‘the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement’ or ‘the decedent’s contemporaneous writing or the heir’s written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent’s intestate estate’. As to the family provision regime, see generally Part III. See NSWLRC, Report 116, pp 212–19. VLRC, 2013, recommendation 35. NSW s 140; Tas s 41. See Succession Acts Amendment Act 1968 (Qld); Administration Act Amendment Act 1976 (WA) s 3. Hotchpot has also been abolished in England: Law Reform (Succession) Act 1995 (UK). P Vines, ‘Wills as Shields and Spears’, Indigenous Law Bulletin, November 2001, 16 (noting that ‘the extreme emphasis on lineal, bloodline relationships in the common law contrast with the acceptance of collateral, adopted and maritally linked relatives in Aboriginal customary law’: at 16). See also P Vines, ‘Consequences of Intestacy for Indigenous People in Australia: The Passing of Property and Burial Rights’ (2004) 8(4) Aust Indigenous L Rep 1. Jones v Public Trustee (Qld) (2004) 209 ALR 106; [2004] QCA 269; BC200404920 at [20] per McPherson JA, with whom Williams and Jerrard JJA concurred. See also Re Estate Wilson (deceased) [2017] NSWSC 1; BC201700081 at [105] per Lindsay J. Mason v Tritton (1994) 34 NSWLR 572 at 594; BC9404979 per Kirby P. See, for example, Dow v Hoskins [2003] VSC 206; BC200303278 at [45] per Cummins J. NSW Pt 4.4; NT Div 4A; Tas Pt 4. The New South Wales and Tasmanian provisions, modelled on the earlier Northern Territory provisions, were enacted against the backdrop of a recommendation by the National Committee for Uniform Succession Laws: see NSWLRC, Report 116, pp 240–6. The issue has more recently been ventilated in the law reform sphere in South Australia: South Australian Law Reform Institute, Cutting the Cake: South Australian Rules of Intestacy, Issues Paper 7, December 2015, pp 153–62. Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984

(Qld) s 60. 347. ‘Indigenous person’ is a person who: (a) is of Aboriginal or Torres Strait Islander descent; (b) identifies as an Aboriginal person or Torres Strait Islander; and (c) is accepted as an Aboriginal person by an Aboriginal community or as a Torres Strait Islander by a Torres Strait Islander community: NSW s 101; Tas s 4. 348. ‘Aboriginal’ means a person who is a member of the Aboriginal race of Australia: NT s 6(1). 349. In Re Estate Wilson (deceased) [2017] NSWSC 1; BC201700081 Lindsay J opined that while the expression ‘the laws, customs, traditions and practices of the Indigenous community or group to which [the] Indigenous intestate belonged’ is too large an expression to be defined exhaustively (at [151]), the policy concerns that gave rise to the enactment and purpose of the statutory regime ‘point towards an Indigenous concept of “family” as an important, if not the decisive, element of any consideration of “the laws, customs, traditions and practices” of any Indigenous community or group’ (at [152]). 350. NSW s 133(1); NT s 71B(1) (which refers to ‘customs and traditions’ in place of ‘laws, customs, traditions and practices’); Tas s 34(1). 351. NSW s 135; NT s 71E(1); Tas s 36. See, for example, Application by the Public Trustee for the Northern Territory [2000] NTSC 52; BC200003590; Re Estate Wilson (deceased) [2017] NSWSC 1; BC201700081. 352. NT s 71(1)(a). 353. NSW s 133(2); NT s 71B(2); Tas s 34(2). 354. NSW s 133(3); NT s 71C; Tas s 34(3). 355. NSW s 133(4); Tas s 34(4). 356. NT s 71D. 357. NSW s 134(1); NT s 71F(1); Tas s 35(1). 358. NSW s 134(3); NT s 71E(2) (which refers to ‘traditions’ in place of ‘laws, customs, traditions and practices’); Tas s 35(3). 359. NSW s 134(4) (‘just and equitable’); NT s 71E(3) (‘just’); Tas s 35(4) (‘just’). 360. NSW s 134(2); NT s 71F(2); Tas s 35(2). 361. Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Qld) s 60(1), (2). As to the backdrop to these provisions, see NSWLRC, Report 116, pp 233–5. 362. Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Qld) s 60(4). The application is pursuant to s 56 of that Act, which empowers the chief executive to grant aid to any Aboriginal or Torres Strait Islander who applies and, where necessary, to apply therein money held under s 60(4). 363. See 9.20. 364. See 10.23–10.26. 365. Bourdales v Carroll [2007] NSWSC 1057; BC200708062 at [5] per Young CJ in Eq. 366. See generally Chapter 16. 367. Vaughan v Hoskovich [2010] NSWSC 706; BC201004472 at [66] per White J. See also Petersen v Gregory [2007] NSWSC 8; BC200700188 at [11] per Barrett J (‘The central concept is one of personal commitment that is mutually acknowledged and of an emotional kind transcending the mere fact of the shared residential setting’). 368. [2010] NSWSC 706; BC201004472. 369. Vaughan v Hoskovich [2010] NSWSC 706; BC201004472 at [67] (having earlier also noted that the intestate had made substantial contributions to the extension, repair and upkeep of the plaintiff’s house and garden: at [66]). See also Brownell v Robinson [2017] TASSC 5 at [31] per Brett J (in the context of a ‘significant relationship’ under Tas s 6).

370. See, for example, Robson v Quijarro [2009] NSWCA 365; BC200910133 (involving a 13-year relationship of a personal and business nature, even though the evidence revealed that the intestate had, at the time of his death, taken preliminary steps to bring it to an end). Cf Re Manlio [2015] VSC 733; BC201512652 (where the evidence revealed that the intestate was in a committed relationship with a woman other than the claimant, who unsuccessfully alleged that she was an ‘unregistered domestic partner’ of the intestate: at [56]–[58] per McDonald J). 371. (SC(NSW), Bryson J, 31 August 1995, unreported) BC9505424 at 23. 372. Bennett v Morandin (SC(NSW), Bryson J, 31 August 1995, unreported) BC9505424 at 23. 373. Cf Lubis v Walters (2009) 4 ASTLR 42; [2009] NTSC 23; BC200904526 (where Angel J found that, although the relationship between the parties had commenced as a commercial arrangement — the deceased employed the plaintiff to cook, clean and provide sexual services for some months while sailing around South East Asia — ‘[t]he fact that the deceased and plaintiff were together from approximately January 2005 until the deceased’s death in January 2008 is in itself indicative of something more than a financial arrangement’ (at [37]), and that ‘the plaintiff and the deceased were generally supportive of each other and an affectionate couple’ (at [39]), qualified the relationship as a de facto relationship). 374. See, for example, Petersen v Gregory [2007] NSWSC 8; BC200700188 (where the parties, who had once been in a de facto relationship, continued to cohabit for the purposes of convenience, but the evidence revealed that any ‘romantic relationship’ between them had ended well before the deceased’s death). 375. See, for example, Tsakirakis v Hatzidimitriou [2007] NSWSC 400; BC200702980 (where Palmer J concluded (at [79]) that the evidence of the relationship between the parties was consistent with them living together as a matter of convenience — the plaintiff performing household tasks for the deceased as some kind of compensation for accommodation — and that even though there was a sexual relationship between them, and they shared some common social interests and activities, it was ‘no more so than friends might do’). 376. Dion v Rieser [2010] NSWSC 50; BC201000494 at [14] per Bryson AJ. 377. Dow v Hoskins [2003] VSC 206; BC200303278 at [32] per Cummins J. 378. Re Estate of Sigg (deceased) [2009] VSC 47; BC200900908 at [13] per Pagone J (adding that ‘[c]ourts should be cautious when being asked to make a determination that a person was the domestic partner of a deceased’: at [14]). 379. George v Hibberson (1987) DFC ¶95–054 at 75,609 per Cohen J (the validity of which is not adversely affected by the reversal of the actual decision in that case on another ground by the Court of Appeal: see Hibberson v George (1989) 12 Fam LR 725; BC8902558). See, for example, Dow v Hoskins [2003] VSC 206; BC200303278 (where Cummins J accepted the evidence of the plaintiff that there was a continuing intention of the parties to resolve their differences and live together, remarking that ‘[s]he was acting responsibly, as was the deceased acting responsibly, in seeking to address his alcohol induced problems … and the separation was designed, not to determine whether they should live together, but to fulfil their continuing intention to live together’: at [34]); Brownell v Robinson [2017] TASSC 5 at [54]–[61] per Brett J (in the context of a ‘significant relationship’ under Tas s 6). 380. Howland v Ellis [2001] NSWCA 456; BC200107719 at [20] per Stein JA, with whom Meagher JA and Ipp AJA concurred. 381. (SC(NSW), McLelland CJ in Eq, 16 February 1994, unreported) BC9402269. 382. Moore v Smith (SC(NSW), McLelland CJ in Eq, 16 February 1994, unreported) BC9402269 at 6. 383. [2010] NSWSC 50; BC201000494 at [158]–[165] per Bryson AJ.

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PART II

Personal Representatives

[page 287]

CHAPTER 10

The Office of Personal Representative Executors Appointment by the testator Delegation to nominate appointee Appointment to a person holding a particular office or title Limited appointment Appointment of company as executor (or administrator) Executor ‘according to the tenor’ of the will Qualification(s) for appointment Capacity to act as executor Appointment of an executor with a (conflict of) interest Appointment of an executor outside the jurisdiction Number of appointees Executor de son tort Concept of an executor de son tort What amounts to intermeddling? Liability stemming from intermeddling

10.1 10.1 10.2 10.3 10.4 10.6 10.8 10.10 10.10 10.11 10.12 10.14 10.15 10.15 10.17 10.19

Administrators Appointment by the court Person(s) eligible for appointment at general law — right to administration ‘follows interest’ Statutory provisions as to order of eligible administrators The territories and New South Wales Queensland South Australia

10.21 10.21 10.23 10.27 10.28 10.29 10.30

Tasmania Western Australia Grant of administration to the Public Trustee (or equivalent) Australian Capital Territory New South Wales Northern Territory, Queensland and Tasmania South Australia Victoria Western Australia Number of appointees

10.31 10.32 10.33 10.34 10.35 10.36 10.37 10.38 10.39 10.40 [page 288]

Trustees Executor (or administrator) compared to trustee Duties and powers Title and beneficiaries’ ‘interests’ Liability Executor (or administrator) becoming trustee Impact of translation to trusteeship Determining moment of translation to trusteeship Relevance of ‘assent’ by executor What amounts to assent Impact of assent on executor’s rights Taxation implications of executorship and subsequent translation to trusteeship Taxation of income generated during the course of administration Taxation of ‘accrued income’ Taxation of capital gains Stamp duty exemption or concession upon executorship and distribution

10.41 10.41 10.41 10.43 10.44 10.45 10.45 10.46 10.47 10.49 10.51

Vacating Office Renunciation prior to accepting office Entitlement to renounce executorship

10.58 10.58 10.58

10.52 10.52 10.54 10.55 10.57

Acceptance of office ordinarily precludes renunciation Appointment of trustee company prior to assuming office Appointment of Public Trustee prior to assuming office Retraction of renunciation by putative executor Retraction of renunciation by putative administrator ‘Passing over’ nominated personal representative Weight given to nominee chosen by testator Where nominee is an undischarged bankrupt Where nominee is incarcerated or the subject of the forfeiture rule Retirement from office No general law right to retire Retirement pursuant to the court’s leave Retirement via delegation to a trustee company Retirement via delegation to the Public Trustee (or equivalent) Retirement where personal representatives become trustees Retirement via appointment of trustees of minors’ property or payment into court Removal from office Devolution of office Where multiple personal representatives and one dies Where sole nominated executor predeceases the testator — ‘executorship by representation’ No ‘administration by representation’

10.60 10.61 10.63 10.64 10.67 10.68 10.68 10.70 10.71 10.72 10.72 10.73 10.74 10.76 10.77 10.78 10.81 10.82 10.82 10.83 10.86

[page 289]

Executors Appointment by the testator 10.1 An executor is the person to whom the execution of a will is confided by the testator. He or she acts in a representative capacity, the nomination as executor being a request, by the testator, to represent the testator for certain purposes at a time when the testator has died.1 This explains why the law

describes an executor as a ‘personal representative’ of the deceased. The nomination of an executor is in the ordinary case found in the will itself, although there is nothing to preclude a testator incorporating by reference some other document that refers to the executor’s identity.2

Delegation to nominate appointee 10.2 It is open, in any case, to a testator, rather than nominating one or more persons to act as executor, to vest in a person the authority to nominate an executor. Or a testator may appoint an executor, but grant authority to another person to nominate a further executor. The law’s historical prohibition on testamentary delegation3 — now in any case ousted by statute4 — did not encompass delegation of the appointment of an executor. The proposition is well established.5 In the 1828 case of In the Goods of Cringan6 the deceased appointed no executor but ‘left to the Legatees mutually to appoint two intelligent and trust worthy persons to execute this deed’. Probate was granted to the nominees so appointed, the court noting that ‘instances have frequently occurred of granting probate to persons nominated by those authorized by the testator so to nominate’.7 If the terms of the will do not preclude this, a person authorised to appoint an executor can appoint himself or herself in that role; no fiduciary duty is superimposed.8 Also, that the nomination of an additional executor is premised on the agreement of an existing executor(s) and a third party that proves elusive does not prevent the grant of probate to the executor(s) appointed by the testator. The testator’s intention would otherwise be defeated.9

Appointment to a person holding a particular office or title 10.3 Just as a settlor may appoint as trustee a person ‘for the time being’ holding a particular office — a religious office-holder in the case of charitable religious trusts being a typical illustration10 — a testator may appoint an executor in like fashion, provided that the description of the office is sufficiently certain. For example, Gray J in In the Estate of Chomiak11 upheld the appointment of the ‘priest in charge for the time being of Ukrainian Catholic Church at Wayville’ as sole executor of the deceased’s will. This

outcome was premised upon construing the phrase ‘priest in charge for the time being’ as referring to the time of the deceased’s death, as opposed to at the date of the will.12 The case law, according to his Honour, supported dual propositions: that ‘a person holding office for the time being may be a person with office which occurs in the future’; and that the phrase ‘for the time being’ means that ‘an event will [page 290] occur eventually and that, when it does, the person who has office on the happening of that event, fulfils the condition’.13 The foregoing must yield, however, to a clear expression of an alternative intention via the use of those words taken in their context.

Limited appointment 10.4 As an executor is ordinarily nominated by the testator — reflecting an aspect of freedom of testation — there is little to preclude a testator from stipulating parameters for the appointment.14 A temporal parameter may be set; for instance, an appointment of the testator’s child when he or she shall reach the age of majority. Or the executorial function can be limited to certain parts of the testator’s estate, so that different executors are appointed as to different properties, say, where the executor has property in two countries15 or otherwise evinces a wish that certain property be treated differentially vis-à-vis executors.16 10.5 Alternatively, an appointment may be confined temporally, or expressed to be conditional on another matter. So, for instance, a testator may appoint A as executor, but in the event of A’s absence from the jurisdiction, that B act as executor.17 And in Re Estate of Ferrall (deceased)18 Gray J construed a bequest to two children, which added the words ‘[a]s the above children are minors at the date of this will, I appoint their father and mother … sole Executor and Executrix to above bequest in trust use at their discretion [sic] on behalf of their two children’, as indicating an intention that the appointment as executors and trustees should not extend beyond the youngest child

attaining majority. As the children had attained majority at the time of the deceased’s death, their father and mother were not entitled to a grant of probate. Instead the children were entitled to a grant of letters of administration cum testamento annexo.19

Appointment of company as executor (or administrator) 10.6 Statutorily created trustee companies or the Public Trustee (or equivalent, where it is a body corporate) may each be granted probate (or administration) notwithstanding that they are not individuals. This is because the relevant statutes expressly envisage this outcome. The trustee companies legislation states that, if a trustee company is named expressly or by implication as executor in a testator’s operative will, that company may act as executor, and may apply for and obtain probate of the will and perform and discharge all the acts and duties of an executor.20 And statute other than in Victoria explicitly recognises that the Public Trustee (or equivalent) may be appointed as an executor (or administrator).21 When so appointed, [page 291] the Public Trustee is likewise entitled to apply for and obtain probate, and to perform and discharge acts and duties as fully and effectually as any other executor.22 10.7 But the general law did not permit a grant of probate (or administration) to a body corporate, a reason being its inability to take the necessary oath. Also, the executorial (or administration) function has been perceived as inherently personal.23 The law was thus challenged where a testator purported to appoint a body corporate as executor. There being no prospect that probate would be granted to the appointed executor, the challenge was met by granting administration cum testamento annexo to a ‘syndic’ (a nominee) duly appointed by the company for this purpose.24 This practice has been followed in Australia,25 a Victorian judge remarking that ‘the proper course to take in the case of the appointment as executor of a corporation not specially authorized (as, eg a trustee company) to take a grant

to itself, is to make the grant to the syndic of the corporation’.26 Although an application of the court’s inherent jurisdiction to grant administration, in South Australia it is replicated in the relevant rules.27

Executor ‘according to the tenor’ of the will 10.8 That the testator’s will contains no express provision for the appointment of any person(s) as executors does not necessarily require application for the grant of letters of administration. It has been judicially observed, to this end, that it is not necessary that the word ‘executors’ be used for this purpose; it is sufficient ‘if it appears by the will that the persons named have to perform duties of the office’.28 The law recognises that appointment of an executor may be constructive. If the construction of the will as a whole supports the conclusion that the named persons are to carry out the functions of executors,29 they are executors ‘according to the tenor’,30 and treated no differently by the law as executors expressly nominated. In order to constitute persons as executors according to the tenor it must appear, on a reasonable construction of the will, that the testator intended that they should collect the assets, pay the debts and funeral expenses and discharge the legacies contained in the will. The reason is that these are the functions ordinarily expected of executors, and so persons charged with these functions by the terms of the will, including by implication, can legitimately be [page 292] identified as those to whom the testator confided the executorial role.31 Where the will in question was not professionally drawn, the court may take a ‘more liberal approach’ to drawing an inference that an executor is appointed by its tenor than in the case of a professionally drawn will;32 after all, it can be expected that a will drafted by a solicitor should clearly identify the executor(s). 10.9 Occasions may arise where a general appointment as trustee may justify an inference of an intention to appoint an executor;33 after all, lay testators do not commonly understand the distinction between executors and trustees. But if the will confines the trusteeship to only a portion of the estate, and is

unaccompanied by any direction otherwise to perform the duties of an executor, the ‘trustee’ is not an executor according to the tenor.34 Such a person is not precluded, however, from being appointed as administrator.35

Qualification(s) for appointment Capacity to act as executor 10.10 As the person chosen, usually by the testator, to represent the testator’s estate must hold the property of the testator, at least for a limited time and for a particular purpose, the basic qualification of an executor, as in the case of a trustee, is that he or she possess the legal capacity to hold property. Accordingly, a person aged under 18, or who lacks mental capacity, cannot carry out the role and functions of an executor. If the will nominates an under-age person as executor, administration cum testamento annexo durante minore aetate36 can be granted to the guardian of the minor or some other person the court thinks fit, which grant expires once the minor reaches majority.37 Appointment of a [page 293] minor-executor does not operate to transfer any interest in the property of the deceased to the minor, or to constitute him or her a personal representative for any purpose, unless and until probate is granted to him or her upon attaining full age.38 If a nominee lacks mental capacity, an order for administration cum testamento annexo may be made, whether or not durante dementia (during incapacity), to a person whom the court considers appropriate for this purpose.39

Appointment of an executor with a (conflict of) interest 10.11 Although an executor is subject to fiduciary obligations vis-à-vis the estate,40 this in no way invalidates the appointment of someone with a personal interest in the estate, including as a beneficiary. Testators will often

appoint someone close to them, whom they trust, as executor; were the law to outlaw appointments of this nature, it could require the appointment of a person removed from the testator’s confidence. This in turn explains why judges will not order the removal of an executor merely because of a conflict of interest, which it can be legitimately assumed the testator had understood in making the appointment. Only if the conflict in question manifests itself in executorial behaviour that threatens the proper administration of the estate will the court countenance ordering the removal of the testator’s appointee.41

Appointment of an executor outside the jurisdiction 10.12 As the role of an executor relates to a deceased person’s property within the jurisdiction, without an avenue for delegation in this context the historical concern was that a non-resident executor could find it difficult to properly perform his or her duties. As a result, from early times courts assumed an inherent jurisdiction to grant administration to an attorney within the jurisdiction of a named executor outside it.42 This has since received a statutory imprimatur other than in Victoria.43 The relevant sections of the probate statutes state that, if a person entitled to probate (or administration) is outside the jurisdiction,44 and appoints a person within the jurisdiction under a power of attorney to exercise that entitlement, the court may grant administration to the attorney on the terms it considers appropriate.45 [page 294] The attorney, it is said, ‘is full administrator, exactly as if he had obtained administration in his own right, as regards the claim of other persons’.46 Basic principles of agency law underscoring attorneyship — whereby the principal remains liable for the attorney’s acts and omissions47 — thus arguably do not apply to make the non-resident appointee liable vis-à-vis the attorneyadministrator. In any case, attorneyship ordinarily ends on the earlier of the completion of the administration or the return of the principal to the jurisdiction,48 or otherwise upon the death or incapacity of either party. 10.13

The foregoing does not mean that an executor (or administrator) who

resides outside the jurisdiction at the date of the deceased’s death is necessarily precluded from applying for representation of the estate.49 There is no assumption today that non-resident executors must appoint an attorney resident in the jurisdiction as a condition of being granted probate. Though in former times non-residents may have been at a disadvantage and unable to administer an estate as effectively and efficiently as a resident — in which case appointment of an attorney supplied a practical solution — ‘[n]owadays communications are so speedy and direct’, a judge observed in 1989, that ‘this factor can scarcely on its own be of any real significance’.50 The revolution in communication technology witnessed since 1989 makes the point the more compelling now.

Number of appointees 10.14 It is not uncommon for a testator to nominate more than one executor, often for similar reasons that settlors of trusts appoint multiple trustees. This may reduce the prospect of an individual executor’s potential abuse of position, arising out of the executor’s title to the property comprising the testator’s estate. It may likewise reduce the inconvenience stemming from a renouncing of office by an executor.51 The probate statutes in Queensland and Tasmania limit a grant of probate to no more than four persons,52 to reduce the prospects of disagreement or failure to communicate among executors.53 If a testator appoints more than four persons, the order of their entitlement to a grant is prescribed by the Queensland legislation as the order in which they are named.

Executor de son tort Concept of an executor de son tort 10.15 The law conceptualises that a person may become an executor de son tort, that is, an executor ‘of his own wrong’. This occurs when a person, including an executor nominated under the will,54 intermeddles with the deceased’s estate at a time preceding the grant of

[page 295] probate. By ‘intermeddling’ is meant, it is said, ‘tak[ing] upon himself the office by intrusion’ and dealing with the estate ‘in such a way as denotes a usurpation of the functions of an executor’.55 The intermeddler is not a true executor (even if he or she is nominated as executor), as he or she (at that stage) lacks title to the assets of the estate. The chief object of branding a person an executor de son tort is as a means of rendering him or her liable to account for the property with which he or she has illegitimately dealt in that capacity, and this explains the observation that the doctrine ‘grew up’ as ‘a protection to those interested’ in the estate,56 namely creditors and beneficiaries. In particular, it developed in response to the numerosity of persons in England having the authority to grant probate, including many clerical officeholders and also some town authorities, preceding the 1857 abolition of the ecclesiastical jurisdiction.57 In these circumstances, it has been said, ‘the right to act as executor was not something easily determinable, and the doctrine was introduced to ameliorate the position of those dealing with persons acting as though they were executors’.58 This has partly translated to its modern rationale, being described in terms that ‘no one should be permitted by refraining from taking out probate or administration to obtain possession of the deceased’s property free from its liabilities’.59 A person who intermeddles after a grant of probate to a nominated executor cannot be an executor de son tort because the appointed executor then carries the obligation to get in the assets of the estate.60 To allow intermeddling with those assets by a person who is not an executor is a breach of duty by the executor, against whom the estate can seek relief. 10.16 Intermeddling by a person nominated as an executor ordinarily evidences an intention to accept executorship and so constitutes acceptance of that office.61 If so, the intermeddler cannot then renounce executorship,62 but can retire from the office with the court’s permission,63 except in Queensland where the probate legislation allows an executor who has intermeddled before applying for probate to nonetheless renounce executorship.64 This statutory initiative was driven by a concern that the general law rule had the potential to

operate harshly.65 Its arguably greater value, though, is in reducing the need for the court [page 296] to determine whether particular acts of a person named as executor should preclude him or her from renouncing the executorship. It also has merit in aligning the positions of executors and administrators in this regard.66 Of course, it does not protect the executor de son tort from liability for any loss caused by intermeddling.

What amounts to intermeddling? 10.17 Intermeddling can take various forms, but generally targets dealing with assets of the estate or their proceeds as if the person possessed authority to do so, when that is in fact lacking.67 Whether one or more acts by a nominated executor amount to the requisite intermeddling, and acceptance of office as a result, is not always easy to determine. The most challenging cases surface where an executor who seeks to renounce has already performed one or more confined tasks vis-à-vis the estate. Case authority aligning calling for claims on the estate via an advertisement with acceptance of office68 sets an ostensibly low threshold for acceptance, and should not be viewed as conclusive, especially as being a party to an advertisement does not, at that stage, involve dealing with assets or claims.69 Given the onerous consequences of acceptance of office, there are reasons in principle not to be too exacting in this regard. Hence the case law indicating that an application for probate by a nominated executor does not, by itself, amount to acceptance of office.70 There are, moreover, obiter English Court of Appeal remarks, in an albeit exceptional case involving a purported renunciation by the testator’s son in order to purchase an estate farming property he occupied, branding the acts of opening an executors’ bank account, endorsing insurance policies in nominees’ names, and instructing solicitors to act for them in administering the estate as ‘so technical and trivial’ as not to preclude the renunciation.71 What seems clear is that there is no intermeddling, and thus no acceptance

of office, where the act(s) in issue stem from a sense of humanity or necessity, or a drive solely to preserve or protect estate assets. The typical example of an act driven by necessity — which otherwise falls within the executorial domain72 — is that of arranging the deceased’s burial or cremation.73 [page 297] So far as preservation is concerned, in Kerr v Mills,74 where the deceased’s sheep were shorn on his widow’s instructions to save them from harm, as opposed to generating income, Darley CJ found ‘nothing which seems to show an intrusion or a dealing with the estate in such a way as denotes any usurpation of the functions of the executor’. And in Howling v Kristofferson75 Cohen J ruled that the nominated executor had not intermeddled by placing his son as caretaker of the main asset of the estate, a house, as this act was ‘solely for the preservation of the estate assets’, as was the act of engaging a plumber to clear a blocked drain. The position would have differed had the nominated executor purported to invest the deceased’s assets, including by leasing the house in question. 10.18 As in most jurisdictions, prior to the grant of representation, a deceased’s estate vests in the Public Trustee,76 who generally speaking has no active duties in relation to it pending the grant,77 the receipt of (parts of) the estate by the Public Trustee, and other acts consistent with its position, do not make the Public Trustee an executor de son tort, especially as regards acts consented to by the nominated executor(s).78

Liability stemming from intermeddling 10.19 The liability that stems from the intermeddling is that which would accrue — to beneficiaries and creditors of the estate — had the intermeddler obtained a grant.79 It does not extend beyond the asset(s) the subject of the intermeddling;80 after all, an executor de son tort, having no obligation to get in estate assets, cannot by definition be liable in respect of assets he or she has not dealt with. No title vests in an executor de son tort merely by intermeddling.81 But the need to protect innocent third parties dictates that those who deal

with an executor de son tort in the good faith belief that he or she is authorised, as executor, to deal with the property, can take valid title from that person.82 And if an executor de son tort discharges a debt owing by the deceased to a creditor, the rightful personal representative cannot later recover the payment.83 10.20 The probate statutes in the Australian Capital Territory, Queensland, Tasmania and Victoria dedicate a specific provision to executors de son tort.84 Though not expressed in [page 298] identical terms, the broader schema appears from the wording of the operative Queensland provision:85 Where any person, not being a person to whom a grant is made, obtains, receives or holds the estate or any part of the estate of a deceased person otherwise than for full and valuable consideration, or effects the release of any debt or liability due to the estate of the deceased, the person shall be charged as executor in the person’s own wrong to the extent of the estate received or coming into the person’s hands, or the debt or liability released, after deducting any payment made by the person which might properly be made by a personal representative to whom a grant is made.

Administrators Appointment by the court 10.21 The appointment of an executor under a will represents the choice of the testator as to the person(s) in whom trust has been placed to carry out his or her testamentary instructions. This is an act of private will, consistent with the notion of freedom of testamentary disposition, and so it falls outside the domain of the law (and thus the courts) to alter this choice, except in those limited circumstances where the removal of an executor is justified. The converse is the case for an administrator, who is appointed precisely because the testator has not chosen an executor, or has chosen an executor who proves unwilling, unable or incapable, or whose grant of probate is revoked.86 The court makes the appointment — the testator clearly cannot — and an issue

therefore focuses on whom it should appoint, which is elaborated below. 10.22 A preliminary observation is that, as in the case of executors, the role of administrators necessarily requires legal capacity, both age-wise87 and mentally. It follows that no court will appoint as administrator a person who lacks that capacity. In circumstances where such a person would otherwise stake the greatest claim to appointment as administrator, the court may issue a grant to another person durante minore aetate88 (during minority) or durante dementia89 (during incapacity). If the person having the greatest interest resides outside the jurisdiction, a grant of administration durante absentia90 (during absence) to someone local is an option.91 In each case, the grant is limited because it comes to an end upon the expiry of, respectively, the minority, incapacity or non-residency.

Person(s) eligible for appointment at general law — right to administration ‘follows interest’ 10.23 At general law, the curial practice is that the right to administration ‘follows interest’, that is, the person who has the greatest interest as a beneficiary in the estate, whether under [page 299] the will or under the rules of intestacy, is normally entitled to the grant.92 A typical dispute in the case law arises between the deceased’s parents, issue or siblings and a person claiming to have been the deceased’s de facto partner.93 As, in the case of intestacy, de facto partners secure priority to the deceased’s estate,94 proof that an applicant was in fact the deceased’s de facto spouse ordinarily inclines the court to grant administration to that person. In the case where there is a will, but appointment of an administrator is called for — whether due to the testator failing to nominate an executor, or instead nominating an executor that proves unable, incapable or unsuitable — administration is also usually granted to the person with the greatest interest, often the residuary legatee under the will.95

10.24 Importantly, though, the court’s choice of administrator cannot be confined to a particular class of person.96 It necessarily retains a discretion, not fettered by unyielding rules, because the appointment of an administrator is, as in the parallel scenario of revocation of probate,97 directed to the due and proper administration of the estate.98 Appointing a residuary legatee, (de facto) spouse or close family member will not always promote this objective. If an applicant for administration would, had he or she been appointed as an executor under the will, have been ‘passed over’ by the court99 — whether for incapacity, lack of ability or some genuine concern as to his or her bona fides — the court will not appoint that person.100 In Butler v Meriga,101 for example, where the executor died before taking probate of the deceased’s will, Chubb J was disinclined to appoint the executor’s wife as administrator of the estate, though she ostensibly had the greatest interest in it, because the evidence revealed [page 300] that she had concealed the will for a long time, renounced administration and then sought to retract the renouncement, and then claimed to be mortgagee in possession of practically the entire estate. His Honour remarked that ‘[t]he Court has a discretion and is not bound arbitrarily to commit administration to the person who comes first in the order of priority’,102 instead favouring another relative of the deceased. And in In the Goods of Ardern103 Gorell Barnes J passed over the intestate’s husband, in favour of the deceased’s infant daughter (via a guardian ad litem), as he was a man of ‘drunken habits’ and given to mismanaging an asset of the estate (a public house). 10.25 In some circumstances, including where the sole next of kin lacks capacity or suffers infirmity, the appointment of a ‘stranger in blood’ is the appropriate course. So in In the Estate of Smith (deceased)104 the mental infirmity of the sole beneficiary of her husband’s estate led Walters J to appoint a trustee company as its administrator, in part influenced by her appointment, when of sound mind, of that trustee company as her own executor. Similarly, there may be circumstances that call for the appointment of an impartial person as

administrator, say where the evidence suggests the person seeking administration may likely be insufficiently impartial, or otherwise compromised by conflict, to properly carry out his or her intended function.105 10.26 There also arise occasions where the person with the greatest interest, rather than being a family member, is a creditor of the estate. In In the Estate of Heerman,106 for instance, Bargrave Deane J granted administration to the intestate’s creditor, who had commenced proceedings to enforce the debt whilst the intestate was alive, in circumstances where the intestate had, during his lifetime, deposed to having no relatives.

Statutory provisions as to order of eligible administrators 10.27 Except in Victoria, the general law ‘administration follows interest’ notion must be read against the terms of statute or rules, discussed below, that identify the persons to whom the court may grant administration and, in some jurisdictions, in which order.107 It must also be read in tandem with statute that empowers the court to make orders granting administration to [page 301] the Public Trustee in certain circumstances, which is discussed below too but under a separate main heading.108

The territories and New South Wales 10.28 In the territories and New South Wales the probate legislation states that, in the event of an intestate estate, the court may grant administration to any of the following persons:109 • the spouse or de facto partner (collectively ‘partner’) of the deceased;110 • one or more of the next of kin of the deceased; or • the partner of the deceased conjointly with one or more of his or her next of kin.

The above reflects the persons with ‘an interest’ under the intestacy rules.111 Absent a person in these classes, the court may appoint as administrator an applicant who, in its opinion, is fit to be so trusted.112 If there is no such applicant, the court may appoint any other person (whether or not a creditor of the deceased) as it thinks fit.113

Queensland 10.29 The Queensland court rules prescribe a descending order of priority of persons to whom the court may grant letters of administration, whether cum testamento annexo or on intestacy. As to the former, the order is as follows:114 • • • • •

a trustee of the residuary estate; a life tenant of any part of the residuary estate; a remainderman of any part of the residuary estate; another residuary beneficiary; a person otherwise entitled to all or part of the residuary estate, by full or partial intestacy; • a specific or pecuniary legatee; • a creditor or person who has acquired the entire beneficial interest under the will; • anyone else the court may appoint. The order in the case of intestacy parallels that set in the intestacy rules.115 The list reflects the general law notion that ‘administration follows interest’116 but, in line with the general law, the rules empower the court to break from the list, and grant administration to a person in priority to any person mentioned in the list.117

South Australia 10.30 Like its Queensland counterparts, the South Australian probate rules distinguish appointees granted administration cum testamento annexo from appointees under an intestacy. [page 302]

The former, unlike the Queensland rules, cover persons entitled to a grant of probate. The relevant persons are determined in accordance with the following order of priority,118 which it has been said ‘tends to mirror or reflect the order of those with the greatest entitlements to a surplus from the estate’:119 • • • •

the executor; any residuary devisee and/or legatee in trust for any other person; any residuary devisee and/or legatee for life; the universal or residuary devisee and/or legatee or, where the residue is not wholly disposed of by the will, any person entitled to share in the residue not so disposed of, or the personal representative of any such person;120 • any specific devisee or legatee or any creditor (or the personal representative of any such person) or, if the estate is not wholly disposed of by the will, any person who, notwithstanding that the value of the estate is such that he or she has no immediate beneficial interest in the estate, may have a beneficial interest in the event of an accretion thereto; • any specific devisee or legatee entitled on the happening of any contingency, or any person having no interest under the will of the deceased who would have been entitled to a grant if the deceased had died wholly intestate. Again like its Queensland counterpart, the priority accorded for the purposes of administration in the event of intestacy aligns to the order in which persons take on intestacy.121

Tasmania 10.31 The Tasmanian probate legislation requires the court, in granting letters of administration, to have regard to the rights of all persons interested in the deceased’s real and personal estate, or its proceeds. It adds that, in particular, administration cum testamento annexo may be granted to a devisee or legatee, and limited in any way the court thinks fit.122 If a person died wholly intestate, administration must be granted, upon application, to some one or more of the persons interested in the deceased’s residuary estate. But if, by reason of the insolvency of the estate or other special circumstances, it appears to the court to be necessary or expedient to appoint a person other than the

foregoing, the court may in its discretion appoint such person as it thinks expedient, and limit any administration in any way the court thinks fit.123 Specific provisions in the relevant rules supplement the statutory schema. These set the following priority of right to a grant of administration cum testamento annexo where there is no executor who proves the will:124 • residuary legatees or devisees in trust; • residuary legatees or devisees for life; • ultimate residuary legatees or devisees, or, where the residue is not wholly disposed of, the person entitled upon an intestacy; • the legal personal representative of any person indicated in the preceding dot point; • legatees, devisees or creditors; [page 303] • contingent (residuary) legatees or devisees, or persons having no interest in the estate who would have been entitled to a grant had the deceased died wholly intestate; • the Crown. Consistent with the position in most other jurisdictions, where a person has died wholly intestate, the priority of right to a grant of administration parallels the order in which persons take under the intestacy rules.125

Western Australia 10.32 The probate legislation in Western Australia empowers the court to grant administration of the estate of an intestate person, whether separately or conjointly, to one or more of the persons entitled to take under the intestacy rules or, in the event that no such person is resident within the jurisdiction and fit to be so entrusted, or when duly cited fails to appear and apply for administration, to any other person, whether or not a creditor.126

Grant of administration to the Public Trustee (or equivalent) 10.33 Statute in all jurisdictions makes some provision for the grant of administration to the Public Trustee in the circumstances it defines. These vary between jurisdictions, and in the Australian Capital Territory the order is described as one to ‘collect and administer’ the estate rather than a grant of administration.

Australian Capital Territory 10.34 In the Australian Capital Territory the probate legislation states that the court may, upon application, grant to the Public Trustee an order to ‘collect and administer’ the estate of a deceased person leaving real or personal estate within the jurisdiction in any of the following cases:127 • if the deceased leaves no executor, partner128 or next of kin resident within the jurisdiction, willing and capable of acting in execution of the will or administration of the estate; • if the nominated executors renounce probate, and all the persons primarily entitled to administration, by writing filed with the Registrar of the Supreme Court, decline to apply for administration; • if probate or administration is not applied for within 3 months of the deceased’s death; • if, after 30 days from the death there is no reasonable probability of application being made within that period of 3 months; • if (any part of) the estate is liable to waste, and the executor, any partner or the next of kin is absent from the locality of the estate, is not known, has not been found or requests the Public Trustee in writing to apply for the order; • if (any part of) the estate is of a perishable nature or in danger of being lost or destroyed; • if great expense may be incurred because of delay; • if by the will the curator of estates of deceased persons or the Public Trustee is appointed to act.

[page 304] Provision is also made for the court, in any case, to make a temporary order for collection or protection only, or a temporary order limited to a part of the estate or otherwise.129 Once an order to collect and administer is made, the estate vests in the Public Trustee — who has the same functions, except as expressly provided, as if administration had been granted130 — and the court may make orders for the collection, sale, investment and disposal of the estate.131 Provision exists for the court, on application, to grant administration to a person in place of the Public Trustee, on the conditions it considers appropriate.132

New South Wales 10.35 The NSW Trustee is, on application, entitled as of right to a grant of administration of an intestate estate leaving property in New South Wales if: (a) letters of administration of the estate have not been granted; (b) letters of administration granted to another person are revoked; or (c) a person granted letters of administration dies without completing administration.133 The court may order the NSW Trustee to administer a deceased estate if there are reasonable grounds to suppose that the deceased died intestate leaving property in New South Wales,134 but, in this event, the NSW Trustee must not distribute any assets of the estate except in accordance with a court order.135

Northern Territory, Queensland and Tasmania 10.36 In the Northern Territory, if a person dies intestate leaving property situated within the territory, the Public Trustee may apply for, and is entitled as of right to obtain, a grant of administration of that person’s estate.136 But if at any time before or after the grant of administration to the Public Trustee a person who is entitled to administration makes application for the grant, the court may grant administration to that person.137 The law is similar in Queensland and Tasmania, where the Public Trustee’s right to administer an intestate estate of a person domiciled or leaving property in the state is subject to a grant of administration to another person or the entitlement of the latter

to make application therefor.138 The Northern Territory, Queensland and Tasmanian legislation also entitles the Public Trustee to apply for administration of the testate estate of a person who leaves property (or, in Queensland and Tasmania, is domiciled) in the jurisdiction, if application for representation has not been made within 3 months of the death.139 In this event, in Queensland the court may, and in Tasmania it must, make the grant unless the person entitled to representation makes application and shows that the delay was reasonable [page 305] (in Tasmania, that the delay was unavoidable or accidental). In Queensland and Tasmania additional provision for the grant of administration to the Public Trustee exists where:140 • the deceased leaves no executor willing and able to act in the execution of his or her will, and resident within the state; • every personal representative has died; • the estate, or any portion of it, is liable to waste, and: – every executor (in Tasmania, or administrator or next of kin) is absent from the locality of the estate, is not known or has not been found; or – in Tasmania, the personal representative or next of kin has requested the Public Trustee in writing to apply for letters of administration; or • part of an estate remains unadministered owing to the death, disappearance or absence from the state, or the incapacity or bankruptcy, of the personal representative. Statute in Queensland adds that, if on proceedings instituted for the administration of an estate, the court forms the opinion, by reason of the small value of the estate or for another reason, that it is more economical or otherwise expedient for the estate to be administered by the Public Trustee instead of the court, it may so order.141

South Australia

10.37 Legislation in South Australia empowers the court to make an ‘administration order’ granting administration of a deceased estate to the Public Trustee, or authorising the Public Trustee to administer that estate, if:142 • in its opinion, the deceased has died bankrupt or insolvent, or a creditor would be entitled to obtain administration of the estate or to institute an action for the administration of the estate — in such a case, if representation has been granted to a person other than the Public Trustee, the court may revoke the grant without prejudice to any proceedings taken or act done under it; • the deceased has died wholly or partially intestate, leaving property within the state, but not leaving a spouse,143 domestic partner144 or next of kin resident in the state who is aged 18 or over; • the deceased made a will without leaving an executor resident in the state willing to act and capable of acting in the execution of the will, and there is no person aged 18 or over in the state entitled to obtain administration cum testamento annexo; • the deceased made a will and appointed an executor but probate of the will has not been obtained within 4 months of the date of the deceased’s death; • no person entitled to obtain administration obtains it within 3 months of the deceased’s death; • representation has been granted to a person who desires to retire from that office, in which case the court may revoke the representation without prejudice to any proceedings taken or act done under it; • the estate or part of it is liable to waste of a perishable nature, is in danger of being lost or destroyed, or great loss or expense may be incurred by reason of delay, and the personal [page 306] representative, spouse, domestic partner or next of kin is absent from the locality of the estate, is not known, has not been found or is unfit or incapable; • a personal representative requests the Public Trustee, in writing, to apply

for the order; or • part of an estate remains unadministered owing to the death, incapacity, insolvency, disappearance or absence from the state of the personal representative. Also, if the court finds reasonable ground to suppose that a person has died leaving property within the state, and has died intestate or without a will duly proved within a reasonable time after death, it may, without requiring strict proof of death, make an administration order authorising the Public Trustee to administer the estate for the benefit of the person’s creditors and for the discharge of the person’s liabilities as if the person were dead.145 Standing to apply for an administration order rests in the Public Trustee, and a person interested in the estate (including a creditor) (via a guardian or blood relation if under 18 years of age).146 The court is empowered to revoke an administration order and grant representation to an executor or administrator.147

Victoria 10.38 In Victoria the relevant legislation simply entitles the State Trustees to apply for administration of a deceased estate leaving property within the state if the court or the registrar is satisfied that no other person is entitled and is capable of taking and ready to take a grant of letters of administration.148

Western Australia 10.39 Statute in Western Australia provides that, where a person has died leaving property in the state, the court may, upon application, grant to the Public Trustee an order to administer the deceased’s estate:149 • where the deceased died testate but left no executor willing and capable of acting in execution of the will resident within the state; • where the deceased died intestate, and the person first entitled to administration is unwilling to act or incapable of acting or is not resident within the state (although if some other person within the state otherwise entitled to administration applies, the court may grant administration to that person); • where the executor renounces probate and all the persons first entitled to

• • •

• •

administration, by writing filed in the office of the court, decline to apply for administration; where probate or administration is not applied for within 3 months of the deceased’s death; where, after the expiration of 30 days from the deceased’s death, there appears to the court to be no reasonable possibility of application being made within the aforesaid 3-month period; where any part of the estate is unprotected or liable to waste and the executor, the deceased’s spouse or de facto partner or next of kin is absent from the locality of that part of the estate or is not known or has not been found; where the estate or a substantial portion of it is of a perishable nature or is in danger of being lost or destroyed; in any other case where the court considers it expedient or proper. [page 307]

Number of appointees 10.40 Other than in Tasmania, the court is not confined as to the number of administrators it may appoint. As in the case of multiple executors,150 the appointment of more than one administrator can serve as a control on the potential for abuse of position. At the same time, the greater the number of administrators, the more difficult or at least convoluted the proper administration of the estate may become. Presumably for this reason, the probate statute in Tasmania limits the grant of administration to four persons.151 And reflecting the importance of control in this context, and protection of the interests of minors and remaindermen, it sets a minimum number of two individuals (or a trustee company) where any beneficiary is an infant or a life interest arises under a will.152 Before appointing more than one administrator, the court must consider whether the joint appointment is a workable one. Long ago it was judicially observed that ‘[t]he Court never forces a joint administration’.153 It is one thing for the law to deal with testators who appoint joint executors who cannot

agree — this may be a price to pay for freedom of testation — but it is another for the court itself to be the author of unworkability. But if the appointment of joint administrators is both workable and indeed convenient for the administration of the estate, especially where there is no objection taken to it, the court may make such an appointment.154

Trustees Executor (or administrator) compared to trustee Duties and powers 10.41 As noted elsewhere,155 an executor’s basic role is to execute the wishes of the deceased as to the disposition of the deceased’s estate. This involves getting in the assets of the deceased, paying expenses and distributing the residue of the estate in accordance with the will. The executor, to this end, performs a limited function, which comes to an end, vis-à-vis each asset of the estate, once that asset has been administered in accordance with the testator’s directions. The same applies for administrators, except that they must follow the wishes of the deceased for distribution of the estate only where the grant is made cum testamento annexo;156 otherwise, the intestacy rules157 must be followed, and other incidents of administration rest on the court’s order. In the comparison made below, the term ‘executor’ is used collectively to include administrators. Trustees ordinarily perform an ongoing role managing property for the benefit of identifiable beneficiaries. Accordingly, the duties and powers of executors differ, both in nature and extent, [page 308] from those of trustees.158 Trustees, for instance, must invest the trust property to render it productive for the beneficiaries, whereas executors’ chief function in winding up the deceased’s estate means that realisation rather than investment of assets is the core duty.159 It follows that executors are generally

vested with a power of sale broader,160 but a power to carry on a business narrower, than that of a trustee. 10.42 To facilitate executors’ core function to bring in the assets of the deceased, the common law recognised that one of several executors can, as a general principle, bind the estate of the testator, and so dispose of an asset of the deceased’s estate without the others’ concurrence (albeit not without qualification or exception).161 At general law, conversely, trustees must act unanimously in disposing of trust property.162 Differences also arise concerning the appointment and retirement of executors and trustees. Executors cannot retire or appoint successors to their place during the period of administration, without prejudice to the appointment of the Public Trustee or a trustee company in place of an unwilling executor, except with the court’s leave.163 The trustee statutes provide for retirement and appointment of trustees164 — not executors165 — but do empower the court to remove executors.166

Title and beneficiaries’ ‘interests’ 10.43 Aside from the above, the core distinction between executors and trustees is that whatever property comes to the executor by reason of that office comes in full ownership without distinction between legal and equitable interests, whereas a trust is premised upon a duality of ownership between legal ownership (in the trustee) and equitable ownership (in the beneficiaries).167 This translates to the ‘interest’ of beneficiaries of unadministered estates; as the executor secures full ownership, unlike trust beneficiaries, they derive no equitable interest in the assets of the estate at the time. The reason for this has been explained by the High Court as follows:168 [P]rior to administration of the deceased estate, there is no specific property capable of constituting the subject property of any trust in favour of the beneficiary. It could not be said at that stage what part or parts of the testator’s property would need to be realised for the purposes of administration … So … the beneficiary does not have a proprietary interest in each of the assets which are the subject of the devise or bequest such that he or she can say ‘this is mine’ or ‘this belongs to me’.

[page 309]

The beneficiaries of an unadministered estate, unlike those of a (fixed) trust, therefore lack standing to claim any proprietary interest, including for the purposes of taxation and bankruptcy, as well as when it comes to lodging a caveat over estate property.169 But prior to completion of the executor’s function of administering the estate, the beneficiaries, like their trust counterparts, clearly have an ‘interest’ in seeing that the estate assets are treated in accordance with the executor’s duties, which translates to a legal right to secure proper administration of the estate.170 They can accordingly pursue proceedings against (allegedly) errant executors, and secure to the estate — not to themselves at the time171 — compensation for losses caused by executors’ breaches. And via the terms of the will, the beneficiaries have an expectation that the item(s) the subject of its bequest(s) will pass to them on completion of administration. That interest and expectation takes the form of a chose in action, which like other choses in action is transmissible by operation of law172 and assignable in equity.173 Only once the executorial function ends — evidenced by assent for the personal estate174 — does the beneficiaries’ ‘interest’ become vested, quantifiable and identifiable.175

Liability 10.44 One matter, though, that requires no distinction between executor and trustee concerns his or her liability for abuse of position. That executors take beneficially, whereas trustees take only legal title, has not precluded the law from superimposing on executors the full force of fiduciary responsibility.176 Indeed, receipt of the deceased’s property beneficially presents an arguably more compelling need for fiduciary accountability than in the case of trustees. The consequences of fiduciary breaches for executors are, accordingly, no different to those applicable in the context of trustees. These fiduciary duties, and the ‘peculiar’177 position of executors generally, mean that the executors’ interest in the deceased’s estate cannot, for all purposes, be viewed as a complete beneficial interest; otherwise property held by an executor could be sold under a judgment against the executor personally, which is not the case.178 [page 310]

Executor (or administrator) becoming trustee Impact of translation to trusteeship 10.45 The distinctions between executors and trustees assume particular significance in the testamentary context because it is common for a will to provide for the appointment of ‘executors and trustees’, who are often the same persons. Even if only executors are appointed, the law recognises that once executorial functions have been performed, to the extent that the estate remains undistributed, the executors become trustees.179 At this stage, it is said, the executors’ right in rem vis-à-vis the estate property translates to a right in personam — ‘a right to get the property back by proper proceedings against those in whom the property should be vested if it turned out that they required it for payment of debts for which they had made no provision’.180 Also at this stage the property yet to be distributed ceases to be part of the estate, but is trust property.181 This impacts on the powers of the relevant office-holder — whether as executor or trustee — and also on the positions of third parties with whom he or she deals. The common law entitles those who deal with an executor to make certain assumptions regarding the executor’s title and authority to the property forming the estate, which they cannot, except to their prejudice, make when dealing with a trustee. As explained by Schutt J in Re Hird and Hickey’s Contract:182 It is no doubt true that where an executor purports to sell in that capacity a purchaser is neither entitled nor obliged to require evidence as to payment of debts, and may assume that the executor is properly acting in the discharge of his functions as such. But the position is totally different … where the purchaser has knowledge of facts which clearly indicate that the property is held by the vendor in his capacity as trustee, and not in his capacity as executor, and that he is not acting in the discharge of his executorial functions. In such a case the purchaser cannot rely on the fact that the executor is purporting to act in that capacity, so that even if in the present case it were assumed … that the [executors] were purporting to sell as such, the purchaser would not be protected, inasmuch as he was aware of the true position.

Once they become trustees, executor-trustees can, in their capacity as trustees, appoint replacement trustee(s) under the power conferred by trustee legislation183 and thereby ‘clear themselves from those duties which were not expressly conferred on them under the terms of the testator’s will and which, for that purpose, they are not bound to accept’.184 The court can also make such an appointment.185 It is therefore necessary to determine the stage at which executorial functions end and trusteeship functions commence, for this

impacts on the nature of the interests, duties and powers of the relevant persons(s), the powers of the court in relation to those person(s), and also the claims and interests of the beneficiaries of the estate. This point is addressed immediately below. [page 311]

Determining moment of translation to trusteeship 10.46 Judges have remarked on the difficulty of ascertaining when a person appointed as executor and trustee moves from holding property as executor to holding it as trustee.186 Several basal points are clear. First, whether a person appointed as executor and trustee acts in one capacity or the other is a question of fact.187 Second, an executor may become the trustee of different assets of the estate at different times, and so can act in both capacities at the same time vis-à-vis different assets.188 It cannot be assumed that there is a precise turning point in an estate when an executor becomes a trustee as regards the entire estate. Third, courts speak of executors being ‘executors for life’ to refer to the executor’s duty to get in assets that come to light at a later date and in becoming liable for debts subsequently discovered.189 Beyond these basal points, the relevant question of fact must commence with an understanding of the chief duties of an executor. These are to get in the assets of the deceased, to pay the deceased’s debts, to pay the legacies given by the will and to distribute the assets and produce accounts,190 sometimes encompassingly described as to ‘clear the estate’.191 To the extent that the estate is cleared, any estate remaining in the hands of the executor is held in the capacity of trustee.

Relevance of ‘assent’ by executor 10.47 At least so far as personalty was concerned,192 the completion of administration of the estate by the executor — and with this the moment at which the executor holds any

[page 312] undistributed property as trustee — has been treated as evidenced by what is termed his or her ‘assent’.193 The concept of ‘assent’ aligns to the moment when the interest of the beneficiary vis-à-vis the relevant asset translates from a chose in action to enforce proper administration to a proprietary interest therein.194 It follows that translation from executor to trustee is not an inquiry independent of assent. Jacobs J in Bryen v Reus explained the need for, and nature and role of, assent in this context as follows:195 [I]n the case of a specific legacy or a general bequest the beneficiary takes under the will. However, he does not take absolutely and immediately because the subject matter of the legacy may be required by the executor for purposes of administration, particularly for the payment of the testator’s debts. The effect of the assent of an executor to a legacy is to give to the beneficiary a complete title to the asset. An assent is a mere indication that the property is not required for administration purposes and therefore may pass as the will directs … Thus, in the case of executors it would indeed be difficult to describe their assent to a legacy as an assignment of the subject matter of the legacy to the legatee. The assent causes the property to vest in the legatee, but is not the instrument of the vesting.

His Honour, citing from an 1827 English text, added that the bequest of a legacy transfers ‘only an inchoate property to the legatee’, and that ‘to render it complete and perfect the assent of the executor is requisite’.196 When this occurs, the legatee’s title ‘relates back’ to the death of the deceased,197 except as regards residue, which does not come into existence until all claims on the estate have been met.198 But this title derives not from the mere assent, but from the terms of the will triggered because of the assent.199 This has prompted the statement that the beneficiaries’ title is ‘created by the joint operation of the will and the assent’,200 pursuant to which beneficiaries can sue for and recover the property the subject of the assent. The foregoing applies subject to any statutory registration requirements upon which the beneficiary’s title may depend.201 [page 313] 10.48 The probate statutes in Queensland, Tasmania and Victoria extend the principles pertaining to assent to real estate. This is done, in Queensland,

by vesting in an executor, vis-à-vis real estate, all the existing powers exercisable in relation to the personal estate and all the powers conferred on executors under the trustee legislation.202 The Tasmanian and Victorian Acts target the point more directly, empowering a personal representative to assent to the vesting in any person entitled thereto of an estate or interest in real estate to which the deceased was entitled, and that devolved upon the personal representative.203 They require an assent to be in writing, signed by the personal representative, and to name the person in whose favour it is given.204 Assent serves to vest in that person the estate or interest to which the assent relates and, unless a contrary intention appears, it ‘relates back’ to the death of the deceased.205

What amounts to assent 10.49 An assent derives from the executor’s own volition in the conduct of his or her duties of administration, not upon the provisions of the will.206 Accordingly, whether or not there has been an assent — such as will effect a distribution of beneficial title to an asset — is ‘a question of fact to be determined on the special circumstances of the particular case’.207 Assent can be express, whether orally or in writing, say by a letter sent to the beneficiaries or other explicit expression by the executor that his or her functions as executor have come to an end.208 Yet as an assent is a question of fact, a statement by the executor that he or she regarded the executorial duties as complete is not determinative of the matter;209 after all, the executor could be under a misapprehension. But it forms part of the evidence for this purpose. Assent may also be implied or inferred by conduct.210 The relevant inquiry has been phrased in terms of whether ‘the administration of the estate reached a point of ripeness at which you can infer an assent, at which you can infer that the residuary estate has been ascertained and that it is outstanding and not handed over merely for some other reason’.211 Filing of probate accounts,212 or the treatment of income for taxation purposes as that of the beneficiary,213 by the executor will likely justify the inference of assent. Elapsing of a substantial period of time since the testator’s death may combine, with other factors, to evidence assent.214 10.50

But the law presumes against an assent where an executor-beneficiary

transfers estate property to himself or herself before satisfying all of the estate debts; instead it presumes that the transfer was made on the footing that the property remained available to meet those debts.215 And merely because, in the case of land, the executor allows a beneficiary to remain in [page 314] possession as an interim measure216 — say, because it was the family home — does not by itself establish an assent by conduct. So in Re Campbell (deceased),217 where the executor had allowed the deceased’s widow to reside on and derive income from her husband’s farm, evidence that the executor kept the accounts and ultimately contracted to sell the farm before disbursing its proceeds to the widow militated against a finding of an assent in the widow’s favour preceding the sale.

Impact of assent on executor’s rights 10.51 An executor that has effected an assent at common law loses his or her entitlements as executor vis-à-vis the property the subject of the assent.218 The Tasmanian and Victorian probate statutes modify this outcome. They state that an assent does not, other than in favour of a purchaser of an estate or interest (in Victoria, a legal estate), prejudice a personal representative’s right to recover the estate or interest to which the assent relates, or to be indemnified out of that estate or interest against any duty, debt or liability to which the estate or interest would have been subject had there been no assent.219 They envisage, also, that a personal representative may, as a condition of giving assent, require security for the discharge of any such duty, debt or liability, but disentitle him or her from postponing the giving of an assent merely by reason of such a duty, debt or liability if reasonable arrangements can be made for discharging it.220

Taxation implications of executorship and subsequent translation to trusteeship

Taxation of income generated during the course of administration 10.52 The basic principle that denies beneficiaries of unadministered estates an interest in any portion of the estate translates into the taxation arena. Although the Income Tax Assessment Act 1936 (Cth) includes within its definition of ‘trustee’ an ‘executor or administrator’,221 there remain no income tax consequences for the ‘beneficiaries’ of that estate vis-à-vis the income earned by the estate preceding the moment they become ‘presently entitled’ to the income. This is because, under s 97 of the Act, the income of a trust is taxable in the hands of its beneficiaries (assuming that they are not under a legal disability)222 only if they are ‘presently entitled’ to that income. 10.53 Case law makes clear that a beneficiary of an unadministered estate is not ‘presently entitled’ for the purpose of s 97. It defines the phrase ‘presently entitled’ to refer to ‘an interest in possession in an amount of income that is legally ready for distribution so that the beneficiary would have a right to obtain payment’.223 And as a beneficiary in an unadministered estate [page 315] cannot, at general law, call for the payment of income, it stands to reason that he or she is not ‘presently entitled’ under the tax legislation. In Federal Commissioner of Taxation v Whiting Latham CJ and Williams J made the following remarks to this end:224 Numerous authorities … have established that until an estate has been fully administered by payment or provision for the payment of funeral and testamentary expenses, death duties, debts, annuities and legacies, and the amount of the residue thereby ascertained, the income of the residuary estate is the income of the executors and not of the residuary beneficiaries … [I]t appears to us that [the provisions in the Income Tax Assessment Act 1936 (Cth) governing the taxation of trust income] must be construed in the light of the general principles of law applicable to the administration of estates by executors and trustees at law and in equity. The crucial question is at what moment of time, having regard to these general principles and to the provisions of the trust instrument, can it be said that a beneficiary has become presently entitled to a share in the income of a trust estate.

The above does not mean that income earned by the estate in the period straddling the deceased’s death and beneficiaries’ ‘present entitlement’ is not brought to tax. Rather, the trustee — in this context the executor or

administrator — is taxable on that income, albeit treated as a separate taxpayer, with the attendant tax-free threshold (at least for a period up to 3 years following the deceased’s death)225 and marginal tax rates applicable to resident individuals thereafter in the usual case.226 Once the beneficiaries become ‘presently entitled’ they are taxable, under s 97 at their individual applicable marginal rates, on income derived from property remaining within the estate. Once that property is distributed to them, income derived therefrom is derived not as a beneficiary of a trust but as ordinary assessable income.

Taxation of ‘accrued income’ 10.54 Where the deceased earned what would have been income assessable in his or her hands prior to his or her death, but which income is not paid until during the course of administration (‘accrued income’), without a dedicated provision bringing this income into the tax net, it would fall outside it. The money so received by the executor or administrator is not taxable in his or her hands because he or she has not derived that money as income.227 This was the upshot of the High Court’s judgment in Commissioner of Taxation (NSW) v Lawford,228 and prompted the enactment of s 101A of the Income Tax Assessment Act 1936. Its operative subsection, which functions to deem the money taxable in the hands of the executor, reads as follows:229 [page 316] Where in the year of income, the trustee of the estate of a deceased person receives any amount which would have been assessable income in the hands of the deceased person if it had been received by him or her during his or her lifetime, that amount shall be included in the assessable income of that year of the trust estate and shall be deemed to be income to which no beneficiary is presently entitled.

In Lawford, prior to the death of one of two solicitors practising in partnership, certain fees had been earned by the partnership that, at the date of the deceased partner’s death, remained owing. The surviving partner thereafter collected those fees and paid to the executor of the deceased partner’s estate the proportion to which the deceased partner had been entitled under the partnership agreement. The amount thus received by the

executor was held not to be assessable income derived by him either in his representative capacity or at all. Similar facts in Single v Federal Commissioner of Taxation,230 decided after s 101A came into force, led the High Court to find the amounts included within the executor’s assessable income pursuant to s 101A and thus confirmed the efficacy of the section to achieve its object.

Taxation of capital gains 10.55 Division 128 of the Income Tax Assessment Act 1997 (Cth) sets out capital gains tax (CGT) consequences upon the devolution of a ‘CGT asset’ owned by the deceased to his or her legal personal representative(s) or its passing to a beneficiary of the deceased’s estate. ‘Legal personal representative’, for this purpose, means an executor or administrator of the deceased’s estate.231 A ‘CGT asset’ encompasses any kind of property, or a legal or equitable right that is not property232 (although it should be noted that some CGT assets are exempt from liability for CGT, the chief example being a main residence).233 Pursuant to the general scheme of capital gains taxation, what triggers a capital gains tax liability is a ‘CGT event’ — most commonly a change in ownership of a CGT asset234 — in circumstances where the proceeds of disposal exceed the asset’s cost base. Accordingly, unless exempted by explicit provision, death causes a change in ownership of property and therefore creates the potential for capital gains tax liability. However, s 128–10 declares that any capital gain (or loss) arising upon this change of ownership is to be disregarded (albeit subject to exceptions).235 This does not mean that death by itself generates no capital gains tax consequence. Had the deceased acquired the asset in question before 20 September 1985 (that is, a ‘pre-CGT’ asset, and thus outside the CGT tax net), his or her death has the effect of changing the status of that asset to one acquired after that date, and thus potentially liable to CGT upon its disposal.236 If a CGT asset owned by the deceased devolves to the deceased’s legal personal representative or passes to a beneficiary of the deceased’s estate, the legal personal representative or beneficiary is taken to have acquired the asset on the date of death, generally at its cost base at that date.237

[page 317] And any capital gain (or loss) made by the legal personal representative upon the asset passing to the beneficiary is disregarded.238 For these purposes, a CGT asset ‘passes’ to a beneficiary who becomes its owner under the terms of the will, by operation of the intestacy rules,239 via an appropriation in satisfaction of a legacy or share in the estate,240 or under a deed of arrangement whereby the beneficiary settled a claim to participate in the distribution of the estate for a consideration consisting only of the variation or waiver of a claim to one or more other CGT assets forming part of the estate.241 It is immaterial whether the asset is transmitted directly to the beneficiary or is transferred to the beneficiary by the legal personal representative. However, a CGT asset does not ‘pass’ to a beneficiary who becomes its owner because the legal personal representative transfers it under a power of sale.242 10.56 The CGT provisions modify the general law underscoring joint tenancies, pursuant to which each joint tenant is jointly entitled to the entire estate. The provisions treat individuals who own a CGT asset as joint tenants as if they each owned a separate CGT asset constituted by an equal interest in the asset and as if each of them held that interest as a tenant-in-common.243 Accordingly, this translates to the CGT treatment of a CGT asset owned by joint tenants where one of them dies. In these circumstances the survivor is taken to have acquired the deceased’s interest in the asset (in equal shares in the event of two or more survivors) on the date of death244 at the cost base of the interest of the deceased (divided by the number of survivors if there is more than one).245 If the asset in question was a pre-CGT asset, it is treated as having been acquired at its market value at the date of death.246

Stamp duty exemption or concession upon executorship and distribution 10.57 Generally speaking, the relevant duties legislation exempts from stamp duty, or imposes a nominal duty on, transfers of property from a personal representative to a beneficiary entitled under the will, pursuant to the intestacy

rules or, in several jurisdictions, under family provision legislation.247

Vacating Office Renunciation prior to accepting office Entitlement to renounce executorship 10.58 A person cannot be compelled to act as an executor (or trustee), other than pursuant to statutory function (in the case of the Public Trustee or a trustee company). After all, not only is there no requirement that an executor have indicated acceptance of the role in the testator’s will, the executor nominated may be unaware of the nomination. And consistent with the legal notion that obligation cannot, outside of the law of tort or equity, be privately (as opposed to statutorily) imposed on a person without his or her concurrence, a person who does not wish to act as executor can, before assuming the role, renounce executorship. ‘It would be injustice’, it has been judicially observed, ‘to allow actions to be brought against [page 318] one appointed executor, who never meant to act as such, before he had an opportunity of renouncing’.248 It remains so even if he or she has given the testator an undertaking to act as executor; the law allows a nominee, on the testator’s death, to resile from the undertaking and renounce that role.249 The foregoing is reflected in the probate statutes in each jurisdiction, which state that, if a nominated person renounces probate, his or her rights as executor cease, and representation of the testator and administration of the estate are taken, without further renunciation, to devolve as if he or she had not been so appointed.250 The same outcome ensues where the appointee survives the testator but dies before taking out probate, or fails to prove the will for some other reason. There is case authority suggesting that renunciation, to be effective, must be in writing and signed by the executor before being recorded in the court rather than merely by some informal

expression or means.251 Yet in practice, failure to appear to a citation to prove or renounce a will is equivalent to renunciation, and so renunciation can in effect be implied from inaction,252 assuming it cannot be viewed as equivocal in the circumstances. However effected, renunciation cannot be partial; an executor either renounces entirely or not at all.253 10.59 Renunciation operates, except where the appointee dies, as a disclaimer of any trust he or she may take under the will,254 except in South Australia and Tasmania, where the probate rules make explicit that an executor’s renunciation of probate does not serve to renounce any right he or she may have to a grant of administration in another capacity unless the executor expressly renounces that right.255 The latter arguably represents the general law in any case.256 But in those jurisdictions, as well as in the territories and Western Australia, the relevant rules add that no person who has renounced probate or administration in one capacity may take a representation to the same deceased in another capacity unless, except in the territories, the judge or registrar otherwise directs.257

Acceptance of office ordinarily precludes renunciation 10.60 A nominated executor who ‘intermeddles’258 in the estate is taken, as a matter of general principle, to have accepted the role of executor and thereby to have forfeited the prospect of renunciation.259 The court does retain a discretion to accept a renunciation even [page 319] after intermeddling,260 but this is hardly exercised as a matter of course. The position differs where the intermeddler is someone entitled to administration; the court cannot compel that person to take out administration,261 presumably because the deceased has not nominated him or her for that purpose.

Appointment of trustee company prior to assuming office 10.61 Consistent with the principles relating to renunciation of office, provision is made in the trustee companies legislation for a person nominated

or authorised to apply for representation to authorise a trustee company to make the application, whether in his or her stead or, in most jurisdictions, jointly. Detail variations between jurisdictions require further explanation. In the territories, New South Wales, Queensland, Victoria and Western Australia the legislation empowers a person entitled to apply for and obtain a grant of letters of administration of a deceased estate (in Queensland and Western Australia, or probate of a deceased’s will) to join with a trustee company for the grant jointly or otherwise authorise a trustee company to so apply.262 Provision for the latter is found in the Tasmanian Act too,263 which adds that, where a natural person may apply for and obtain letters of administration, a trustee company may do likewise.264 In the territories, New South Wales and Tasmania a person appointed an executor who is entitled to obtain probate without reserving leave to any other person to apply for probate may authorise a trustee company to apply for letters of administration with the will annexed.265 The same applies in Victoria, except that it is not limited to an appointment without reserving leave to any other person to apply for probate.266 In the Australian Capital Territory and Victoria the relevant provision envisages that, in the alternative, the person may join with a trustee company in an application for a grant of probate to them jointly. Also, in the territories and Tasmania a person appointed an executor who is entitled to obtain probate jointly with any other person may authorise a trustee company to apply for probate either alone, with leave reserved for any person to come in and prove, or jointly with any person entitled to apply for probate.267 In each case, the application may be granted unless the testator has expressed a [page 320] desire in the will that the office of executor not be delegated or that the company so applying is not to act in the trusts of the will. In Queensland any person named as executor who would be entitled to obtain probate of the testator’s will may, instead of personally applying for probate, join with a trustee company in an application for letters of

administration with the will annexed to be granted to the trustee company.268 Such a grant may be made even if another person named as executor has applied for and has been granted probate.269 But it cannot be made if the testator has by will expressed the desire that the office of executor should not be delegated or that the trustee company should not act in the trusts of the will.270 The South Australian legislation states that a trustee company may apply for and obtain representation of a deceased estate in the same circumstances as a natural person.271 It adds that a trustee company may, with the court’s approval and the consent of the personal representative, apply for and obtain representation of the relevant estate.272 And it empowers a trustee company, with the court’s approval, to act on behalf or in the place of an executor or administrator, either on a permanent or a temporary basis.273 10.62 The New South Wales probate legislation prescribes an alternative avenue in this context. It allows a person nominated as executor, before taking or renouncing probate, to by deed appoint a trustee company, whether in the person’s place or stead or as a co-executor.274 Upon the requisite registration and filing275 the will is construed and takes effect in all respects as if the name of the appointee had been originally inserted in the will as executor.276 But no such delegation may be made if the testator, by his or her will, has directed or intimated that the office of executor should not be delegated or that the proposed appointee should not act in the trusts of the will.277 Prior to making any appointment the putative appointor must, unless dispensed by the court, give the requisite notice to the prescribed persons,278 inviting objectors to file a written notice of objection, in which case no appointment can be made without a direction of the court.279

Appointment of Public Trustee prior to assuming office 10.63 In several jurisdictions equivalent provision is made for the delegation of office to the Public Trustee (or its equivalent). In New South Wales it is found in the probate legislation, which applies the same principles and procedure here as apply to delegations to a trustee company.280 In Victoria it is located in the State Trustees (State Owned Company) Act 1994, wherein any person nominated as executor may authorise State Trustees to apply for

probate [page 321] unless the testator has specified in his or her will that the executorial office must not be delegated or that the State Trustees must not act.281 In Western Australia the Public Trustee Act 1941 envisages that one or the majority of persons entitled to obtain administration or named as executor(s) can, unless expressly prohibited by the will in the case of executor(s), authorise the Public Trustee to apply to the court for and obtain an order to administer the estate.282 Alternatively, all or a majority of executors or administrators may apply to the court to have the Public Trustee appointed sole executor or administrator on the ground that it would benefit the interests of the estate.283

Retraction of renunciation by putative executor 10.64 The probate statutes in Tasmania and Victoria empower the court to permit an executor who has renounced probate to withdraw the renunciation, in which case he or she can prove the will, without prejudice to any prior acts and dealings of and notices to any other personal representative who has previously proved the will or taken out letters of administration.284 The probate rules in South Australia and Tasmania envisage an application for permission to retract a renunciation of probate or administration,285 but only in exceptional circumstances may permission be given to retract a renunciation of probate after a grant has been made to some other person entitled in a lower degree (in Tasmania, capacity).286 Assuming that the reference to ‘lower degree’ is intended to refer to the appointment of an administrator in place of a renouncing executor, the ‘exceptional circumstances’ requirement287 reflects the general law’s disinclination to allow retraction in this event.288 In South Australia such an application must be supported by an affidavit showing that the retraction is ‘for the benefit of the estate, or of the parties interested’.289 10.65 The case law, in any event, reveals that the court has jurisdiction to allow an executor who has renounced to retract the renunciation,290 provided that the retraction precedes the grant of representation to a person other than

a co-executor.291 There is no corresponding restriction on retraction where probate has been granted to a co-executor. In In the Goods of Stiles292 the old probate practice, whereby a co-executor who had renounced probate could by permission of the court retract the renunciation, was held to have survived the statutory prescription, noted above, to the effect that a person’s rights as executor cease if he or she renounces probate, and the representation of the testator and administration of the estate are taken to devolve as if he or she had not been appointed executor. Sir F H Jeune P construed the phrase ‘the rights of such person shall wholly cease’ as to be read in connection [page 322] with those that ensue, so that ‘the effect is merely that, when an executor has renounced, it shall not afterwards be necessary to cite him’.293 The Tasmanian and Victorian provisions mentioned above, pursuant to which a court may allow retraction of a renunciation, have been acknowledged to preserve the existing probate practice.294 Under these provisions, and at common law, it remains to determine the circumstances where the court may allow retraction. In Stiles the court allowed the renouncing executor to retract, as the executor who took probate had absconded.295 Sir F H Jeune P premised curial leave here upon a ‘proper case, where the circumstances have altered’.296 The case is sometimes cited as authority for the proposition that leave to retract requires that the court be satisfied that the retraction will benefit the estate or those interested under the will.297 Though the judgment contains no explicit statement to this effect, it nonetheless aligns with the proper exercise of the court’s jurisdiction. To this end, while a mere change of mind may prove insufficient to activate the jurisdiction, there are good reasons, grounded in freedom of testation, for the court to avoid too exacting an approach. As explained by Young J in Re Estate of Thurston:298 It would seem that so long as there is a reason for retracting the renunciation the Court should normally grant the application. This is because it is the right of any testator to choose who shall administer his estate. Once that choice is made then it is only on very special grounds that the Court would choose some other person. If the person renounces for a particular reason and that reason ceases to be operative, then the renunciation should be allowed to be withdrawn.

His Honour added that ‘[a]ll that has to be explained is why, having once renounced, the person renouncing should be permitted to withdraw’.299 A clearer case for leave to retract is found in the facts of Re Lawrence (deceased),300 where grounds existed to query whether inter vivos dispositions made by the testator to the executor granted probate might be impugned for undue influence or incapacity. Here Brooking J considered that allowing a renouncing executor to retract would benefit the estate, as a finding of undue influence or incapacity would swell the assets of the estate. The ‘most satisfactory way’ of acting on the court’s leave, his Honour added, was to execute and file a formal instrument of retraction.301 10.66 Perhaps the clearest instance where a court allows retraction of a renunciation is where those co-executors who had been granted probate have subsequently died or become incapacitated. In circumstances of this kind, the continuing administration of the estate by a person the deceased has chosen for this purpose presents a compelling principle-based ground for permitting the renouncing executor to retract. But where the renunciation has led to the appointment of an administrator, old English case authority holds that a court will not, in equivalent circumstances, allow the renunciation to be retracted so that the executor can take probate (or, for that matter, administration).302 The ‘possible inconvenience that might accrue, in other quarters, from chains of executorship once broken, being thus suffered to revive’ was [page 323] the reason cited for this view.303 The strictness of this position is mollified by the probate rules in South Australia and Tasmania, which ostensibly envisage that the court may allow retraction in this event upon proof of exceptional circumstances.304

Retraction of renunciation by putative administrator 10.67 The case law supports the court’s power to likewise allow a person who has renounced his or her right to be granted administration of a deceased estate to subsequently retract that renunciation. A typical instance of the

court’s exercise of this power is where the original renunciation occurred against the backdrop of bankruptcy of the estate and, subsequent to its administration by the relevant bankruptcy trustee, there remain assets not required to meet creditors’ claims, in which case those who originally renounced administration (ordinarily one or more family members of the deceased) may be allowed to retract that renunciation so as to administer the estate remaining unadministered.305 Retraction by putative administrators is, it seems, ‘sanctioned more freely’ than retraction by a nominated executor,306 presumably because an administrator, unlike the executor, has not been chosen by the testator.

‘Passing over’ nominated personal representative Weight given to nominee chosen by testator 10.68 The principles underscoring the revocation of a grant as a vehicle to remove a personal representative, which are discussed in the context of revocation of representation,307 apply in equivalent fashion where the dispute concerns to whom representation ought to be granted in the first instance.308 The court has jurisdiction to ‘pass over’ the appointment of a named executor, or a person entitled to apply for a grant of administration, and appoint a (different) representative if this is necessary for the due and proper administration of the estate.309 The court again gives considerable weight to the fact that a person has been chosen by the testator310 — and the associated notion that ‘[p]rimâ facie, all who are nominated to the office of executor by a testator are entitled to a grant of probate’311 — and so is loath to pass over a person chosen by the testator.312 It instead assumes that the testator was aware of the connections, and of any conflict, that the nominee(s) may have in relation to the estate. As a testator may appoint as an executor a person closely involved in his or her business and financial affairs, ‘it would be [page 324] undesirable if such an appointment by a testator well aware of those facts

should be rendered ineffective merely because of them’.313 In Re Jensen,314 for example, the deceased’s son applied as executor for probate of the testator’s will, which was opposed by the Public Trustee, who sought an order to administer the testator’s estate.315 The challenge arose out of the fact that the executor had renounced the deceased’s religious beliefs. Ambrose J refused the Public Trustee’s application, reasoning that ‘[t]he hostile environment in which the applicant son as executor will find himself by reason of his abandoning the Exclusive Brethren as a religious group ought not of itself … be regarded as a sufficient justification to disregard the faith and confidence which the testator placed in his applicant son to administer his estate’.316 His Honour, highlighting the importance of giving effect to the testator’s wish regarding the identity of the executor, added that:317 … it would be going a long way in circumstances like the present to prefer an application made by the Public Trustee to placate the religious bigotry of a group of beneficiaries many or most of whom have had little if any contact with the testator for many years preceding his death, to that of the executor chosen by that testator to administer his estate with full confidence after a long and close familial and business relationship in circumstances where the testator must have been aware that members of his family who remained within the Exclusive Brethren would probably behave precisely the way in which they have behaved.

Accepting that the appointed executor’s role would not be an easy one, in view of potential opposition to his management of the estate, Ambrose J was nonetheless disinclined to interfere with what was an ostensibly informed choice of the testator.318 10.69 Yet the testator’s choice is not always determinative. A nominee may be ‘passed over’ in circumstances that do not reflect adversely upon him or her, say where he or she is a minor, mentally incapable,319 in ill-health, outside the jurisdiction or (presumed) dead.320 The nomination of a person who cannot be located is likewise a ground to ‘pass over’ that person, assuming proper inquiries have been made for this purpose.321 In other instances a nominee’s unfitness or other poor character, arising out of, say, incarceration,322 insolvency,323 an unsuccessful attempt to propound a forged will,324 refusal to pursue or undue delay in [page 325]

pursuing the grant,325 or improper intermeddling with the estate,326 may justify ‘passing over’. A nominee’s misconduct in this context must be proved, not just pleaded.327

Where nominee is an undischarged bankrupt 10.70 Consistent with the primacy accorded to the testator’s choice, that an executor is bankrupt does not by itself disqualify him or her from taking (or retaining) office. As far back as 1740, it was judicially remarked that the court ‘never esteems [indigent circumstances] as any ingredient to take the assets out of the hands and care of the executors, nor will even the ecclesiastical court refuse persons a probate because they are not of affluent fortunes, as long as the testator himself has placed this confidence in them without regarding their circumstances’.328 But in the case of an administrator — where the testator’s choice is not explicitly in issue — courts have displayed a marked reluctance to appoint an undischarged bankrupt.329 Ultimately, whether involving executors or administrators, a person otherwise entitled may be ‘passed over’ if bankruptcy brings to the surface matters capable of adversely impacting on the proper administration of the estate.330 In this event, the courts had traditionally appointed a receiver to the estate, but this assumes the absence of another (solvent) personal representative appointed to administer the estate.331

Where nominee is incarcerated or the subject of the forfeiture rule 10.71 That a nominated executor is imprisoned at the time executorial functions are required is clearly a ground for the court to pass over the nomination and appoint an administrator cum testamento annexo.332 Nor will a court be inclined to appoint as administrator a person who is incarcerated.333 But merely because the appointee has been convicted of an offence, including a serious offence, does not for this reason alone justify the court passing over his or her nomination as executor.334 [page 326]

Just as the common law ‘forfeiture rule’, for reasons grounded in public policy, precludes a person who has killed another from taking, whether testamentarily or under the intestacy rules, the estate of the deceased,335 the law similarly recognises that nor can such a person be granted probate or administration of that estate.336

Retirement from office No general law right to retire 10.72 Once an executor has accepted office, and probate has been granted, he or she must carry out the duties and functions expected of an executor. As explained by Brougham LC in Moyle v Moyle:337 A man may renounce a trust, or he may refuse to undertake it, but having once accepted it, whether as executor or as trustee, he must discharge its duties, so long as his character of trustee subsists; for, by consenting to assume the office, he prevents other persons from being appointed, or accepting, who might have more time and leisure to devote to it. It is no excuse, therefore, that the parties are volunteers; for they are greatly to blame in consenting to act, if they really have not time for the due performance of their duty, and injury is sustained in consequence.

Failure to properly perform the requisite duties and functions, inter alia, may lead to the revocation of the grant.338 Otherwise, though, executors enjoy no general law right, in the absence of specific provision in the will or the collective consent of the beneficiaries (assuming they are all of full capacity), to retire from this position.

Retirement pursuant to the court’s leave 10.73 The probate statutes in the territories and Victoria, and the Queensland court rules, which empower a court to discharge a personal representative who wishes to be discharged from office,339 clearly invoke a statutory jurisdiction to allow retirement in advance of translation to trusteeship.340 Inherent therein is that retirement is premised on leave of the court, a point that finds statutory expression in Western Australia,341 which presumably rests on there being persons who can continue or take over the administration.342 Grant of leave to retire in no way excuses a retiring personal representative from liability for acts and defaults whilst acting in that capacity,343 and requires consequential orders to vest estate assets in the

continuing [page 327] personal representative(s), for the passing of accounts and the handing over of the estate assets, accounts and other documents. Whether, independent of statutory provision, the court has an inherent jurisdiction to simply allow personal representatives to retire is not the subject of clear authority. In any case, a court may opt to revoke a grant of probate or administration to effect a change in personal representatives.344

Retirement via delegation to a trustee company 10.74 An alternative means of effecting retirement is found in the trustee companies statutes in most jurisdictions. These provide a vehicle whereby a person who has already undertaken the role of personal representative can delegate that role to a trustee company, and in so doing be relieved of the continuing obligation to administer the estate. The statutes in the territories, New South Wales, Queensland, Tasmania and Victoria empower an executor or administrator, acting under probate or letters of administration, to appoint a trustee company to exercise and discharge all his or her acts and duties.345 In New South Wales the appointment can be of the trustee company alone, or jointly with some other corporation or person. Other than in Victoria, though, the consent of the court is required. In Queensland, the appointment cannot be made if the testator has by will expressly prohibited the appointment of the trustee company to the office in question.346 In Tasmania, Victoria and Western Australia the legislation envisages that an executor or administrator may, via a power of attorney, appoint a trustee company to act as executor or administrator in his or her stead.347 No court consent is required for a valid appointment, under which the trustee company may act within the scope of the authority conferred as effectually as the appointor, and may exercise all discretionary and other powers delegated to it

by the appointor as fully and effectually as the appointor could have exercised them. The heading to the relevant sections, however, suggests that this power to delegate is intended as a temporary expedient rather than a permanent delegation of responsibility. 10.75 As a further alternative, the probate legislation in New South Wales envisages that a personal representative who has already commenced administering the estate may by deed appoint, whether in his or her place or stead or as a co-representative, a trustee company. Once this is done, the estate remaining unadministered, and the attendant rights, powers and duties, vest in the appointee, whether solely or jointly with the appointor348 or, if there are other personal representatives, as a joint tenant.349 Once the relevant deed is registered and filed, the appointor is not liable in respect of any act or default by the appointee in reference to the estate.350 But there is no scope for delegation of this kind if the testator, by his or her will, has directed or intimated that the office of executor should not be delegated or that the [page 328] proposed appointee should not act in the trusts of the will.351 Prior to making any appointment the putative appointor must, unless dispensed by the court, give the requisite notice to the prescribed persons,352 inviting objectors to file a written notice of objection, in which case no appointment can be made without a direction of the court.353

Retirement via delegation to the Public Trustee (or equivalent) 10.76 The public trustee statutes in several jurisdictions make provision for the delegation of the office of personal representative, even though it has already been assumed, to the Public Trustee (or equivalent). The Northern Territory, Queensland and South Australian statutes envisage that an executor or administrator may, whether or not before acting, with the consent of the court354 appoint the Public Trustee in his or her stead.355 But in South Australia no such appointment may be made if expressly prohibited by the will, or if another executor or administrator is willing and, in the opinion of the

court, suitable to act.356 The same applies in Tasmania but not premised on the consent of the court, except where the proposed appointment of the Public Trustee is as sole executor or administrator in place of multiple executors or administrators.357 In New South Wales the probate legislation provides the equivalent avenue. It applies the same rules in this regard to delegations to the NSW Trustee as apply to delegations to trustee companies.358

Retirement where personal representatives become trustees 10.77 Personal representatives can, upon becoming trustees,359 take advantage of provisions in the trustee statutes that broadly allow a trustee to retire if two trustees (or a trustee company) remain, or where no new trustee is being appointed but the other trustee consents.360

Retirement via appointment of trustees of minors’ property or payment into court 10.78 Outside of the trustee legislation, property or probate statutes in the Australian Capital Territory, New South Wales, Tasmania, Victoria and Western Australia make de facto provision for retirement where a person under the age of 18 years (a ‘minor’) becomes absolutely entitled to a devise or legacy, or to any share in the residue of a deceased estate, which is not testamentarily bequeathed to trustees for the minor. The deceased’s personal representatives may, in this event, appoint a trustee corporation361 or between two and four [page 329] persons (whether or not including themselves) to be the trustee(s) thereof, and execute or do any assurance or thing requisite for its vesting in the trustee(s) so appointed.362 Upon this appointment the personal representatives are, as personal representatives, discharged from all further liability vis-à-vis the devise, legacy, residue or share, which may be retained in its existing condition or state of investment, or may be converted into money, to be invested in any

authorised investment.363 Appointment of a trustee company or of multiple trustees, without needing to apply to or secure the approval of the court, operates as a control over the proper management of the estate for the minor(s) in question. This avenue for retirement implicitly recognises that minors are, except to the extent that statute provides to the contrary, unable to give a valid receipt or discharge.364 As a result, the appointed personal representative(s) would otherwise be obliged to hold the relevant property on trust for the minor until he or she reaches the age of majority, which could involve a lengthy ongoing responsibility. 10.79 There are also other statutory provisions in several jurisdictions that enable a trustee to pay money held on trust for a minor, whether to the public trustee or a trustee company.365 The provision in the South Australian probate legislation requiring an administrator holding property for a person ‘who is not sui juris’ to transfer the property to the Public Trustee within 1 year of the deceased’s death likewise has application vis-à-vis minors, but can be dispensed with by court order.366 10.80 Aside from the above statutory provisions, the consequent inconvenience of continuing trusteeship could be avoided by the personal representative(s), upon assuming trusteeship, paying into court the money held on trust for the minor, an option available under the trustee legislation.367 This represents a de facto retirement from the trust,368 and thus serves as a relief from further responsibility relating to administering the money in question,369 though not from liability for existing breaches.370 Yet assuming that the personal representatives have become trustees, a simpler and more efficient option is to retire from the trust and appoint new trustees pursuant to the trustee legislation371 or, if the terms of the will allow, pursuant to those terms. The general availability [page 330] of retirement under the trustee legislation in this event arguably makes the specific statutory power to appoint trustees of minors’ property redundant. It

has been suggested, to this end, that the latter power is premised on a belief — that ‘executors as such do not, after completing their executorial duties, hold the property upon trust for the minor unless they are appointed trustees by the will’ — inconsistent with case law to the effect that an executor becomes a trustee by merely continuing to hold property after the functions as executor have been performed.372

Removal from office 10.81 Unlike in the case of a trustee, pursuant to the equitable jurisdiction, courts arguably lack an inherent power in the exercise of the probate jurisdiction to simply order the removal of a personal representative.373 Unless statute makes alternative provision — as it does in the territories and Victoria — most of the case authority suggests that a personal representative can be removed only via the revocation of the grant and the making of a fresh grant.374 For this reason, vacation of office via the ‘removal’ of a personal representative is discussed in the context of revocation of the grant of representation.375

Devolution of office Where multiple personal representatives and one dies 10.82 It is well established that, in the event of the appointment of multiple executors or administrators, and one (or more) of them dies, the office — with its incidents, duties and powers — and the estate and interest in all the property vested in them by virtue of their office, devolve upon the survivor(s).376 So in Jolliffe v Fera.377 for instance, Holland J held that, when one of a number of administrators survives, that survivor has all the powers of administration in the estate, including the power to dispose of real estate for the purposes of administration and to make conveyances under contracts that were executed by all administrators before the death of any of them. It stands to reason that the same ensues where one of a number of personal representatives becomes mentally incapable, or retires or is removed from office, assuming that no replacement is made by court order.

Where sole nominated executor predeceases the testator — ‘executorship by representation’ 10.83 From early times the law was challenged with the scenario of a sole executor predeceasing the testator and the associated need to fill the consequent gap in executorship. To avoid the need to apply to the court for appointment of an administrator de bonis non (‘of the estate not administered’) in these circumstances,378 statute first addressed this issue in 1351.379 In 1577 the Full Court of King’s Bench stated that what ‘a man has as executor, he cannot devise to another’, and that ‘[f]or as soon as he is dead, the thing goes to the use of the first testator, and his executors shall have it as executors to the first testator, and to his use, [page 331] and not as executors to the last testator, nor to his use’.380 In 1915 the High Court of Australia, to this end, remarked as follows:381 At common law the power and estate of an executor was regarded as founded upon the special confidence and actual appointment of the testator. His estate was therefore regarded as transmissible. It was held to be transmitted from a sole or last surviving executor to his own executor, but not from one of several executors to whom alone probate had been granted. So long as the chain of representation was unbroken the ultimate executor was regarded as the executor, and, as such the representative, of the original testator.

Three years later the same court endorsed the rule, to this end, that ‘an executor having taken probate of his own testator’s will becomes executor, ipso facto, not only of that will, but also of the will of any testator of whom the other was the sole or surviving trustee’.382 Accordingly, an executor of an executor ‘succeeds to the rights and estate of the original testator without any order for that purpose’,383 and has the same powers and duties as the immediate executor.384 The rule aims to simplify and reduce the cost of completing the administration of an estate in the event that the executor predeceases the testator.385 It goes by the name of ‘executorship by representation’. 10.84 The English statute that spawned this rule continues to apply in the Northern Territory, South Australia and Western Australia. In the remaining

jurisdictions it finds expression by dedicated statutory provision, which declares that an executor386 of a sole or last surviving executor of a testator is the executor of that testator. But this is expressed not to apply to an executor who does not prove the will of his or her testator. And if an executor leaves surviving him or her some other executor of the testator who afterwards proves the will of that testator, the said rule ceases to apply on such probate being granted.387 [page 332] The legislation adds that, so long as the chain of representation is unbroken, the last executor in the chain is the executor of every preceding testator.388 What breaks the chain is intestacy, failure to appoint an executor or to obtain probate of a will or, in Queensland, renunciation of executorship by representation.389 But it is not broken by a temporary grant of administration if probate is later granted. In Queensland, moreover, an executor may renounce the executorship by representation before intermeddling without also renouncing the executorship in relation to his or her own testator.390 The concern here was that the common law — pursuant to which ‘an executor of a testator cannot renounce the executorship of other persons of whom his testator may have been executor’391 — could operate harshly in relation to a person who undertakes executorship for a friend without realising that it entails undertaking executorship of a complete stranger of whom the friend was executor.392 Some law reform bodies have, for essentially the same reason, recommended likewise.393 10.85 Statute provides that every person in the chain of representation possesses the same rights in respect of the testator’s estate as the original executor would have had if living and is, to the extent to which the estate has come to his or her hands, answerable as if he or she were an original executor.394

No ‘administration by representation’ 10.86

There is no equivalent provision made in respect of administrators,

except in a limited fashion in the New South Wales probate statute.395 The reason is that, unlike the case of executors, the office of administrator is not transmissible, so that the ‘chain of representation’ mentioned above does not apply to administrators.396 The grant of letters of administration, it is said, ‘is made personally to the applicant for the grant’.397 An executor of a deceased’s administrator is not viewed as a representative of the deceased, whereas an executor of the deceased’s executor, because of the trust and confidence the deceased reposed in the original executor, is viewed as such a representative. Not all find this rationale compelling. The Ontario [page 333] Law Reform Commission, for instance, saw little reason to distinguish administrators from executors for this purpose, reasoning as follows:398 In a world where testators appoint large trust companies as their executors, and where there is a relatively high degree of mobility among the population, we doubt whether any ‘special confidence’ can be said to repose in an executor to appoint a successor to the original estate. Where the executor of an executor is unaware of the original testator or his estate, he would seem to be less capable of, or interested in, dealing with it than would a person eligible to apply.

This view has received endorsement in Australia, and formed the basis for a recommendation that the office of personal representative be transmissible as between administrators inter se and also between executor and administrator.399 Until this translates to statute, though, the appropriate grant in these circumstances is for administration de bonis non.400

1. 2. 3. 4. 5. 6. 7. 8.

Fell v Fell (1922) 31 CLR 268 at 276; BC2200004 per Isaacs J. As to the doctrine of incorporation by reference, see 4.61–4.67. See 2.78–2.80. See 2.82. See the discussion in Re Estate of Magarey (deceased) (2009) 265 LSJS 204; [2009] SASC 279; BC200908137 at [14]–[24] per Gray J. (1828) 1 Hagg Ecc 548; 162 ER 673. In the Goods of Cringan (1828) 1 Hagg Ecc 548 at 549; 162 ER 673 at 674. See also Re Deichman (1842) 3 Curt 123; 163 ER 676. In the Goods of Ryder (1861) 2 Sw & Tr 127; 164 ER 941 (where the court held that the power to

9. 10. 11. 12. 13. 14. 15.

16.

17. 18. 19. 20.

21.

22.

23.

24.

25.

appoint as executor such person(s) as the appointor may think fit, included the appointor himself). Jackson v Paulet (1851) 2 Rob Ecc 344 at 348–9; 163 ER 1340 at 1341. See G E Dal Pont, Law of Charity, 2nd ed, LexisNexis Butterworths, Australia, 2017, pp 214–17. (2012) 112 SASR 245; [2012] SASC 27; BC201200829. See also Re Bone (1895) 1 ALR 132; Re Khan [1947] QWN 26; In the Will of Bottoms (SC(Vic), Phillips J, 26 July 1985, unreported); Re Milton [1999] VSC 417; BC9907424. In the Estate of Chomiak (2012) 112 SASR 245; [2012] SASC 27; BC201200829 at [36]. See Williams, Mortimer and Sunnucks, pp 100–3. See, for example, In the Goods of Harris (1870) LR 2 P & D 83 (where the testator executed two wills, appointing different executors, the first being limited to his property in England, and the second applying as regards his property in Tasmania). See, for example, In Estate of Fairlie-Jones (deceased) (2013) 116 SASR 172; [2013] SASC 59; BC20130 (where the deceased’s will appointed P as ‘Executor or Executrix and Trustee of this my Will’ but also provided ‘I WOULD like my daughter … to be in charge of EVERY item I own not mentioned in this will. She can then distribute things after discussion’; Gray J held that the latter constituted the daughter an executor ‘according to the tenor’ (as to which see 10.8) relating to that other property). In the Goods of Langford (1867) LR 1 P & D 458. (2011) 111 SASR 79; [2011] SASC 187; BC201108183. As to the grant of letters of administration cum testamento annexo, see 11.38–11.41. Trustee Companies Act 1947 (ACT) s 4; Trustee Companies Act 1964 (NSW) s 4; Companies (Trustees and Personal Representatives) Act 1981 (NT) s 14(1) (and see also s 14(2), which states that, where a trustee company is appointed jointly with another person as an executor, it may act as the executor and apply to the court for a grant of probate ‘either with leave reserved for any person to come in and prove or jointly with any other executor, and the court may grant probate accordingly’); Trustee Companies Act 1968 (Qld) s 5(1); Trustee Companies Act 1988 (SA) s 4; Trustee Companies Act 1953 (Tas) s 5; Trustee Companies Act 1984 (Vic) s 9; Trustee Companies Act 1987 (WA) s 9. Public Trustee and Guardian Act 1985 (ACT) s 13(1)(b); NSW Trustee and Guardian Act 2009 (NSW) s 11(1)(b) (NSW Trustee); Public Trustee Act 1979 (NT) s 32(1)(a), (b); Public Trustee Act 1978 (Qld) s 27(1); Public Trustee Act 1995 (SA) s 14(1); Public Trustee Act 1930 (Tas) s 12(1); Public Trustee Act 1941 (WA) s 7(1). This is made explicit by statute in most jurisdictions (ACT s 10C; NSW s 44(2) (NSW Trustee); NT s 20; Public Trustee Act 1978 (Qld) s 29(1)(b)(i); Public Trustee Act 1930 (Tas) s 16(1), (2); Public Trustee Act 1941 (WA) s 8), but is implicit in the validity of the appointment of the Public Trustee elsewhere. Cf Public Trustee Act 1995 (SA) s 14(2) (which requires the Public Trustee to accept this appointment unless granted permission to refuse by the court on the ground that the nature of the trusts and the duties to be performed make it undesirable that the Public Trustee should act). This backdrop explains why (albeit out of an abundance of caution) the trustee companies legislation in some jurisdictions declares that a trustee company may act as administrator as if it were a natural person: Trustee Companies Act 1964 (NSW) s 8; Trustee Companies Act 1968 (Qld) s 10; Trustee Companies Act 1953 (Tas) s 16. In the Goods of Darke (deceased) (1859) 1 Sw & Tr 516; 164 ER 839; In the Goods of Hunt [1896] P 288; In the Estate of Rankine (deceased) [1918] P 134 at 139 per Swinfen Eady LJ. As to administration cum testamento annexo, see 11.38–11.41. See, for example, Re Randall (deceased) [1927] VLR 535 at 538–9 per Cussen J; In the Estate of Rosenthal (1933) 50 WN (NSW) 228; Re Mercer (deceased) [1964] QWN 26; In the Will of Docker

26. 27. 28. 29.

30. 31.

32.

33.

34. 35. 36. 37.

(1976) 27 FLR 345; Government Insurance Office v Johnson [1981] 2 NSWLR 617 at 625 per Hutley JA; Boland v Nahkle (SC(NSW), Powell J, 6 April 1992, unreported) BC9203240 at 8. The same practice was followed in New Zealand (see, for example, Re Atkinson (deceased) [1936] NZLR 34; Re Odlin (deceased) [1938] NZLR 700) before its statutory ouster: Administration Act 1969 (NZ) s 63 (see Re Cornelius (deceased) [2012] 1 NZLR 853; [2011] NZHC 1804 at [15]–[25] per MacKenzie J). Re Edwards (deceased) [1946] VLR 71 at 72 per Lowe J. SA PR r 46. In the Will of Hollings (1878) 4 VLR (IPM) 46 at 47 per Molesworth J. Re Estate of Wilden (deceased) (2015) 121 SASR 516; [2015] SASC 9; BC201500208 at [18] per Gray J (‘The question of whether there is an appointment of an executor according to the tenor is a matter of impression and inference to be drawn from the words used by the testator’). In the Estate of Williams (deceased) (1984) 36 SASR 423 at 435 per Legoe J. See, for example, In the Goods of Adamson (1875) LR 3 P & D 253 (where Sir J Hannen, having said that ‘the essential duties of an executor are to collect the assets of the deceased, to pay his funeral expenses and debts, and to discharge the legacies’, found that two such duties were ‘expressly assigned by the testator to’ three named persons, and thus considered them to be ‘executors according to the tenor’: at 254); In the Goods of Wilkinson [1892] P 227 (where the testatrix named two persons in her will ‘hereinafter called my trustees, of this my will’, and after making certain specific bequests expressed a desire and wish that they ‘do pay my funeral and all other debts owing by me as soon as possible after my interment’; Jeune J ruled that ‘according to the true construction of the will, the testatrix intended to appoint these gentlemen her executors, and the grant of probate, therefore, may go to them as executors according to the tenor’: at 228); Tsagouris v Bellairs (2010) 5 ASTLR 403; [2010] SASC 147; BC201003978 (where, although the deceased did not expressly appoint an executor, by charging the plaintiffs with the authority to sell the main asset of the estate, and to then, with the supervision of a solicitor, arrange that the moneys be paid towards the construction of an orphanage, led Gray J to conclude that, as the tasks so nominated were ‘typical tasks attributable to the office of executor’, the plaintiffs had been appointed executors of the deceased’s estate according to the tenor of the will: at [34]); Re Estate of Whelan (deceased) [2013] SASC 18; BC201309064 (where an informal will stated that ‘it is my wish that my estate be administered by my brother [J]’, ‘I have instructed my brother [J] to make certain that …' and ‘my brother [J] is hereby authorised to sell the house and clear any remaining debts’; Gray J held that ‘[e]ach of the above extracts from the will evidence an intention on the part of the deceased that J perform executorial functions’, so that J had been appointed executor according to the tenor: at [16]). Re Estate of Wilden (deceased) (2015) 121 SASR 516; [2015] SASC 9; BC201500208 at [19] per Gray J (and on the facts in question made an implication of executorship from words used by the deceased on a DVD that was held to be his informal will). See, for example, Re Young (deceased) [1969] NZLR 454; In the Estate of Williams (deceased) (1984) 36 SASR 423; Hornsby v Hornsby (No 2) [2014] WASC 434; BC201411250 at [131]–[133] per E M Heenan J. See, for example, In the Goods of Jones (deceased) (1861) 2 Sw & Tr 155; 164 ER 952. See, for example, In the Will of Shepherd (deceased) [2002] QSC 98; BC200201666. Namely, administration ‘during minority with the will annexed’. The probate legislation or court rules in most jurisdictions makes provision to this effect where a minor is nominated as sole executor: ACT s 21(1); NSW s 70; NT s 30(1); Qld UCPR r 639; Tas s 23(1); Vic s 26(1); WA s 33(1). The confinement of this jurisdiction to where a minor is a sole executor — irrespective of whether or not any other executor is incapable on other grounds of

38. 39. 40. 41. 42.

43. 44.

45.

46.

47. 48. 49.

50. 51.

applying for probate (see, for example, In the Will of Nicol (1926) 43 WN (NSW) 146, where the second executor lacked mental capacity) — is mollified by the court or probate rules, other than in Queensland: ACT CPR r 3116; NSW RSC Pt 78 r 50; NT RSC r 88.28; SA PR rr 42.01–42.03 (which adds that, if a minor nominated as sole executor has no interest in the residuary estate of the deceased, administration for the use and benefit of the minor until he or she attains 18 years of age is granted to the person entitled to the residuary estate unless the interest of such person is adverse to that of the minor or the registrar otherwise directs: SA PR r 42.04); Tas PR r 43; Vic 2014 r 5.01; WA 1967 r 26(1). See 11.44, 11.45. Although only the Tasmanian and Victorian probate statutes make explicit provision to this effect (Tas s 23(2); Vic s 26(2)), this reflects what is otherwise inferred elsewhere. See 11.38–11.41. See 12.21–12.23. See 11.99, 11.100. Hodge v Clare (1691) 4 Mod Rep 14; 87 ER 235; Slaughter v May (1705) 1 Salk 42; 91 ER 42; Perpetual Trustee Co Ltd v Satchell (1939) 39 SR (NSW) 335. See, for example, Re Bushel (deceased) (1887) 13 VLR 166 (grant of administration to attorney-under-power of the non-resident administrator); In the Goods of Barton [1898] P 11 (grant of administration de bonis non to attorney of deceased’s next of kin, who resided outside the jurisdiction). Cf Vic 2014 r 5.02 (‘An application for a grant of representation under peculiar circumstances not expressly referred to in these Rules shall, with any necessary modification, be made upon grounds and in circumstances and upon materials that have been previously acted upon by the Court’). The New South Wales provision adds ‘or is engaged on war service within the meaning of the Trustee and Wills (Emergency Provisions) Act 1940’. The Western Australian provision adds ‘or is a member of the naval, military, or air forces of Her Majesty the Queen (including a member of any medical corps nursing service attached to any of the forces aforesaid) who is within the jurisdiction’. ACT s 22(1); NSW s 72(1); NT s 31(1); Qld UCPR r 611; SA s 34 (explicitly identifying the Public Trustee as a potential donee; see also SA PR r 41); Tas s 17; Tas PR r 42; WA s 34. See, for example, In the Estate of Slattery (1909) 9 SR (NSW) 577. The provisions in the territories and New South Wales add that the grant of administration continues in force despite the death of the donor of the power of attorney, subject to the terms of the grant: ACT s 22(2); NSW s 72(2); NT s 31(2). This alters what would otherwise be the legal position, namely that the grant lapses upon the death of the donor (Re Maher [1905] QWN 58), which reflects the basic notion that authority under a power of attorney ends upon the death of its donor: see G E Dal Pont, Powers of Attorney, 2nd ed, LexisNexis Butterworths, Australia, 2015, pp 292–3. Re Dewell (1858) 4 Drew 269 at 272; 62 ER 104 at 105 per Kindersley VC, referring to Chambers v Bicknell (1843) 2 Hare 536; 67 ER 222. See also Re Rendell [1901] 1 Ch 230 at 232 per CozensHardy J; Re Rogowski (deceased) (2007) 248 LSJS 274; [2007] SASC 161; BC200703457 at [23] per Gray J. See generally G E Dal Pont, Powers of Attorney, 2nd ed, LexisNexis Butterworths, Australia, 2015, Ch 9. Re Bushel (deceased) (1887) 13 VLR 166 (order limited until the non-resident administrator should obtain administration). See, for example, In the Goods of Urruela (1869) LR 1 P & D 598; In the Goods of Samson (1873) LR 3 P & D 48; In the Goods of Blackwood (1881) 2 LR (NSW) Eq 83; Re Wallen [1926] NZLR 729 at 730– 2 per Skerrett CJ; Re Tinkler [1990] 1 NZLR 621. Re Tinkler [1990] 1 NZLR 621 at 626 per Ellis J. As to renunciation by an executor, see 10.58–10.67.

52. 53.

54.

55. 56. 57. 58. 59. 60. 61. 62. 63. 64.

65.

66. 67.

Qld s 48(1); Tas s 14(1). This follows the English model: Senior Courts Act 1981 (UK) s 114(1). Queensland Law Reform Commission, The Law Relating to Succession, Report No 22, 1978, p 31. This course has been recommended for model uniform succession legislation: see QLRC, Report 65, Vol 1, p 112. Strictly speaking, where the intermeddler has been nominated as executor, it may not be entirely accurate to term that person an executor de son tort, but he or she is nevertheless treated in the same way, so far as the consequences of intermeddling — vis-à-vis the creditors and beneficiaries of the estate — as an intermeddler not so nominated: Douglas v Forrest (1828) 4 Bing 686 at 704; 130 ER 933 at 940 per Best CJ (‘If [the nominated executor] has acted as executor he may be sued as executor, whether he has proved the will or not’); Re Lovett (1876) 3 Ch D 198 at 204–7 per Malins VC (‘It would be the height of injustice if a man could possess himself of the assets of a testator, and because he did not choose to clothe himself with the character of administrator, could not therefore be sued in respect of such assets’: at 205); Re Stevens [1898] 1 Ch 162 at 178 per Vaughan Williams LJ (cf at 170 per Lindley MR); Howling v Kristofferson (SC(NSW), Cohen J, 14 October 1992, unreported) BC9201556 at 11. Having said that, the law pertaining to executors de son tort in this context implicitly recognises that many estates (and especially small estates) are, in practice, administered informally. Yet to the extent that a nominated executor takes title under the will, as opposed to a grant of probate, it is arguable that, independent of the doctrine of executors de son tort, it is possible for a nominated executor to properly administer the estate without a grant of probate, at least in relation to assets that do not require the executor to obtain title by way of transmission (such as Torrens system land): see N Crago, ‘Executors of Unproved Wills: Status and Devolution of Title in Australia’ (1993) 23 UWALR 235. Peters v Leeder (1878) 47 LJQB 573 at 574 per Lush J. J Warren, ‘Problems in Probate and Administration’ (1918–19) 32 Harv L Rev 315 at 316. As to which see 22.16. F C Hutley, ‘The Executor De Son Tort in the Law of New South Wales’ (1952) 25 ALJ 716 at 716. Hiralal v Hiralal (2013) 10 ASTLR 300; [2013] NSWSC 984; BC201311348 at [165] per Slattery J. Ex parte the Public Trustee (1951) 51 SR (NSW) 345 at 361 per Maxwell J. See generally the discussion in Mulray v Ogilvie (1987) 9 NSWLR 1 at 3–5 per Needham J. In the Estate of Biggs (deceased) [1966] P 118 at 123 per Rees J. As to the renunciation of executorship, see 10.58–10.67. See 10.73. Qld s 54(2). An equivalent provision has been recommended in Western Australia (Law Reform Commission of Western Australia, The Administration Act 1903, Project No 88, August 1990, p 31), as has a broader provision — expressed to apply up to the time when probate is granted — for model Australian legislation generally (see QLRC, Report 65, Vol 1, pp 53–4). Queensland Law Reform Commission, The Law Relating to Succession, Report No 22, 1978, p 37 (although the example of potential harshness given — ‘where a person who happens to be nominated executor performs acts of administration in the emergency following a death without any intention of taking up his executorship’ — is not one that the general law would have treated as intermeddling, and thus giving rise to acceptance of office: see 10.17). As to the position of administrators in this regard, see 10.60. See, for example, Inland Revenue Commissioners v Stype Investments (Jersey) Ltd [1982] Ch 456 (where the non-resident defendant sold land it held as nominee for the deceased on the latter’s instructions, and removed the proceeds of sale out of the jurisdiction after the deceased’s death, which had occurred before completion, was held to have intermeddled with the estate and

68. 69.

70.

71. 72. 73.

74. 75. 76. 77. 78. 79. 80. 81.

constituted itself an executor de son tort). For an historical excursus on the point, see G Weir, ‘Intermeddling by an Executor and Renunciation’ (1935) 9 ALJ 187. See, for example, Long and Feaver v Symes and Hannam (1832) 3 Hagg Ecc 771; 162 ER 1339. See, for example, In the Will of Colless (1941) 41 SR (NSW) 133 (where Nicholas CJ in Eq held that a nominated executor could renounce after joining in an advertisement in accordance with the prescribed form, which indicated that application would be made within 14 days that probate be granted to him and his co-executors, and required creditors to send in particulars of their claims to ‘the undersigned’, who was the executor’s proctor; his Honour distinguished Long and Feaver v Symes and Hannam, mentioned in the preceding note, on the basis that, in that case, the executors had impliedly promised to pay debts, called upon debtors to make payments to them and signed themselves executors). Mohamidu Mohideen Hadjiar v Pitchey [1894] AC 437 at 443 per Lord Macnaghten (PC) (‘The suggestion which was thrown out that an executor by applying for probate has conclusively accepted the trusts of the will, does not seem to merit serious consideration’); In the Will of Colless (1941) 41 SR (NSW) 133. Cf Re Sharman’s Will Trusts [1942] 1 Ch 311 at 316–17 per Bennett J (who held that the acts of the nominated executor in proving the will, paying all funeral and testamentary expenses, making payments to beneficiaries on account of the interest on their legacies, and dealing with the testator’s estate by forming a company to take over a business in which the testator had an interest, ‘irresistibly lead to the conclusion that he accepted office’, and could not thereafter disclaim: at 317). Holder v Holder [1968] 1 Ch 353 at 397 per Danckwerts LJ. See also at 391–2 per Harman LJ, at 401 per Sachs LJ. See 12.4–12.8. Harrison v Rowley (1798) 4 Ves 212 at 216; 31 ER 110 at 113 per Arden MR (‘if there was no executor, giving directions for the funeral is only an act of charity, and will not make a man executor. God forbid, it should; for then the deceased could not be buried by any one from the apprehension of being involved as executor’); Mulray v Ogilvie (1987) 9 NSWLR 1 at 5 per Needham J (‘If it be correct that a stranger might arrange the burial of the deceased without incurring liability as executor de son tort, it would seem to follow that that is not an act of intermeddling. It would also follow, I think, that such action by a person nominated as an executor could not be categorised as intermeddling’). See, for example, Camden v Fletcher (1838) 4 M & W 378; 150 ER 1475 (where the daughter-in-law of the deceased collected a debt due to him and used most of the money for funeral expenses, it was held that there was no intermeddling in respect of the moneys received as long as only a reasonable amount was used for funeral expenses). (1888) 5 WN (NSW) 33 at 33 (FC). (SC(NSW), Cohen J, 14 October 1992, unreported) BC9201556 at 15. See 11.71, 11.72. See 11.73–11.76. Booth v Public Trustee [1954] VLR 183 at 192–3 per Hudson AJ. See Williams, Mortimer and Sunnucks, pp 87–90. Yardley v Arnold (1842) C & M 434 at 438; 174 ER 577 at 579 per Parke B; Coote v Whittington (1873) LR 16 Eq 534 at 547 per Malins VC. Stratford-upon-Avon Corporation v Parker [1914] 2 KB 562 at 567 per Lush J, at 569 per Atkin J; Ex parte the Public Trustee (1951) 51 SR (NSW) 345 at 351 per Street CJ, at 362 per Maxwell J; Cash v Nominal Defendant (1969) 90 WN (Pt 1) (NSW) 77 at 81 per Brereton J (the liability of an executor de son tort ‘does not depend upon any proprietorial interest’).

82.

83. 84.

85.

86. 87. 88. 89. 90. 91. 92.

93.

Thomson v Harding (1853) 2 El & Bl 630 at 640; 118 ER 904 at 908 per Lord Campbell CJ (‘where the executor de son tort is really acting as executor, and the party with whom he deals has fair reason for supposing that he has authority to act as such, his acts shall bind the rightful executor, and shall alter the property’); Nagel v Hough (1927) 27 SR (NSW) 418 at 422 per Long Innes J; Cash v Nominal Defendant (1969) 90 WN (Pt 1) (NSW) 77 at 79 per Brereton J. Parker v Kett (1701) 1 Ld Raym 658 at 661; 91 ER 1338 at 1340 per Holt CJ. ACT s 74A; Qld s 54; Tas s 29; Vic s 31C (before 1 January 2015, Vic s 33). These provisions owe their genesis to s 28 of the Administration of Estates Act 1925 (UK), which represented a broader application of its longstanding predecessor, 43 Eliz I c 8 (1601) (titled An Act against Fraudulent Administration of Intestates’ Goods), which arguably continues in force in the Northern Territory, South Australia and Western Australia (but not New South Wales: Imperial Acts Application Act 1969 (NSW) s 8(1)). Law refom bodies in South Australia and Western Australia have recommended the enactment of modern statutory provisions to address the point: Law Reform Committee of South Australia, Inherited Imperial Statute Law in This State Relating to the Topics of Property, Trusts, Uses, Equity and Wills, Report No 54, 1980, p 12; Law Reform Commission of Western Australia, The Administration Act 1903, Project No 88, August 1990, pp 30–1. Qld s 54(1). The National Committee for Uniform Succession Laws has recommended that model legislation contain a provision based on the Queensland section, but for reasons of accessibility replacing the phrase ‘charged as executor in the person’s own wrong’ with ‘is liable to account for estate assets’: QLRC, Report 65, Vol 3, pp 156–7. As to the grounds for revocation of a grant of probate, see 11.94–11.112. This is made explicit in some jurisdictions: ACT s 12(2); NT s 22(3); Tas s 13A; WA s 25(1). See 11.44, 11.45. See 11.46, 11.47. See 11.48. But it is not essential, a point made explicit in the Tasmanian legislation: Tas s 13A (‘The Court may grant letters of administration to a person … whether or not the person resides in Tasmania’). Sawbridge v Hill (1871) LR 2 P & D 219; In the Will of Parsons (deceased) (1887) 13 VLR 169 at 171 per Webb J; Re McCormack (deceased) (1902) 2 SR (NSW) B & P 48; In the Estate of Slattery (1909) 9 SR (NSW) 577 (speaking in terms of a grant following ‘the majority of the interest’: at 579 per Street J); In the Estate of Chave (1930) 30 SR (NSW) 180; Bain v Morabito (SC(NSW), Powell J, 14 August 1992, unreported) BC9201674 at 12 (referring to the grant following ‘the preponderance of interests’); Bar-Mordecai v Rotman (SC(NSW), Einstein J, 4 September 1998, unreported) BC9804681 at 33–4; Bourdales v Carroll [2007] NSWSC 1057; BC200708062 at [5] per Young CJ in Eq; Fairburn v Healey [2009] WASC 114; BC200903568 at [7] per Hasluck J; Re Will of Orloff (deceased) (No 2) (2010) 24 VR 603; [2010] VSC 83; BC201001452 at [20]–[22] per Robson J; Re Curran [2010] VSC 455; BC201007603 at [21] per Ferguson J. See, for example, Sale v Rudys [2002] 2 Qd R 423; [2001] QSC 293; BC200104679 (application for administration on the ground of the applicant’s ongoing connubial relationship with the deceased preceding the deceased’s death; the application was dismissed because the evidence revealed that the applicant’s relationship with the deceased was ‘on and off’ and they often lived apart when they fought); Robson v Quijarro [2009] NSWCA 365; BC200910133 (where, having established that she was the de facto spouse of the intestate at the time of his death, the appellant was granted letters of administration in place of the respondents, being the intestate’s adopted children); Fairburn v Healey [2009] WASC 114; BC200903568 (involving an application by the plaintiff for the grant of letters of administration of his deceased daughter’s estate, and a counterclaim by the defendant for administration on the ground that she was the deceased’s de facto partner; Hasluck J found no de

94. 95.

96.

97. 98.

99. 100.

101. 102. 103. 104.

105.

106. 107.

facto relationship established on the facts, and thus dismissed the counterclaim: at [75]–[81]). See 9.20, 9.21. Re Pierce (1886) 12 VLR 733 at 735 per Webb J; Re Will of Orloff (deceased) (No 2) (2010) 24 VR 603; [2010] VSC 83; BC201001452 at [20], [21] per Robson J. See, for example, In the Estate of Shephard (deceased) (1982) 30 SASR 1 (where the appointed executors, who were the deceased’s sons-in-law, declined to renounce probate but took no action to obtain the grant of probate, the Full Court acceded to the application by the testator’s widow, as residuary legatee, for the grant of letters of administration cum testamento annexo). Cardale v Harvey (1752) 1 Lee 177 at 179–80; 161 ER 66 at 66 per Sir George Lee (‘though it is a good general rule to grant administration to the largest interest, yet that is only introduced by practice, not by any positive law, and the Court is not obliged to grant it to the largest interest’). See 11.94–11.107. In the Goods of Carr (1867) LR 1 P & D 291; Re Legh (deceased) (1889) 15 VLR 816 at 819 per Hodges J; In the Goods of Loveday [1900] P 154 at 156 per Jeune P; Re Hoarey [1906] VLR 437 at 445 per Cussen J; Fairburn v Healey [2009] WASC 114; BC200903568 at [7] per Hasluck J. As to the circumstances where ‘passing over’ a named executor may be justified, see 10.68–10.71. Hunter v Hunter [1932] NZLR 911 at 935 per Reed, Adams and Ostler JJ; Bar-Mordecai v Rotman (SC(NSW), Einstein J, 4 September 1998, unreported) BC9804681 at 20–1; Re Will of Orloff (deceased) (No 2) (2010) 24 VR 603; [2010] VSC 83; BC201001452 at [42] per Robson J. [1904] St R Qd 248. Butler v Meriga [1904] St R Qd 248 at 252. [1898] P 147. (1972) 2 SASR 477 at 480. See also In the Goods of Burrell (1858) 1 Sw & Tr 64; 164 ER 631 (where the sole next of kin of the deceased intestate was of unsound mind, administration was granted to her stepmother); In the Goods of Roberts (1858) 1 Sw & Tr 64; 164 ER 631 (where the only next of kin entitled in distribution were of very advanced age and unwilling to take upon themselves the burden of administration, administration was granted to their son for their use and benefit); In the Goods of Hastings (1877) 4 PD 73 (where a stranger in blood was granted administration where the sole next of kin was a person of unsound mind); Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17; BC201400746 at [162]–[166] per E M Heenan J (appointment of Public Trustee because others with an interest suffered a disability or were ordinarily resident outside the jurisdiction). See, for example, In the Estate of Phillips [1947] VLR 379 (involving an application to appoint an administrator ad litem for the purpose of representing a deceased estate in proceedings against the estate — the estate was being sued for damages arising out of a road accident in which the deceased was killed — Herring CJ was disinclined to appoint as administrator a near relative of the plaintiff; his Honour saw it as ‘most undesirable’ that a person intending to pursue such an action ‘should put forward as a nominee for appointment as administrator ad litem a close relative’, instead favouring some ‘neutral person’: at 382); Davis v Davis (No 2) [2012] NSWSC 523; BC201203269 (where Slattery J appointed the NSW Trustee as administrator upon the revocation of probate to the nominated executor, where the appointment of another family member as administrator would likely have perpetuated existing hostilities and further slowed down the administration of the estate); Omari v Omari [2012] ACTSC 33; BC201201080 (Public Trustee appointed administrator in view of a rift between the deceased’s children). [1910] P 357. Cf the New Zealand approach, where rather than identify classes of potential appointees (and orders

108. 109. 110.

111. 112. 113. 114. 115. 116. 117. 118. 119. 120.

121. 122. 123. 124. 125. 126.

127. 128. 129. 130. 131.

of appointment), the legislation simply states that, in line with the common law, in granting letters of administration ‘the Court shall have regard to the rights of all persons interested in the estate of the deceased person or the proceeds of sale thereof, and, in particular, administration with a will annexed may be granted to a devisee or legatee’ and, in the case of total intestacy, ‘administration shall be granted to some one or more persons beneficially interested in the estate of the deceased, if they make an application for the purpose’: Administration Act 1969 (NZ) s 6(1). Cf Re Bond (deceased) [1967] NZLR 234 at 237–8 per McGregor J. See 10.33–10.39. ACT s 12(1)(a)–(d); NSW s 63(a)–(c); NT s 22(1)(a)–(c). In the Australian Capital Territory, the term used is ‘partner’, which is defined in ACT s 44; in New South Wales the reference is to ‘spouse’, which includes a de facto spouse: NSW s 32G(2); in the Northern Territory the statute uses the phrase ‘spouse or de facto partner’: NT s 22(2A). The Australian Capital Territory provision adds that, if the intestate is survived by two partners, either partner, or both partners conjointly, can be granted administration: ACT s 12(1)(c). See 9.20–9.28. ACT s 12(3); NSW s 63; NT s 22(2). ACT s 12(1)(e), (3); NSW s 63(d); NT s 22(1)(d), (2). Qld UCPR r 603(1). Qld UCPR r 610(1). As to the intestacy rules in this context, see 9.44–9.46. The rules add, to this end, that, if two or more persons have the same priority, the order of priority must be decided according to which of them has the greater interest in the estate: Qld UCPR r 603(3). Qld UCPR rr 603(2) (administration cum testamento annexo), 610(3) (administration on intestacy). SA PR r 31. State of South Australia v Smith (2014) 119 SASR 247; [2014] SASC 64; BC201403761 at [53] per Nicholson J. However, SA PR r 35.03 adds that, unless the registrar otherwise directs, administration must be granted to a living person in preference to the personal representative of a deceased person who would, if living, be entitled in the same order of priority and to a person not under disability in preference to a person under disability in the same order. SA PR rr 32.01, 32.02. As to the order persons take on an intestacy in South Australia, see 9.47, 9.48. Tas s 13. Tas s 13. Tas PR r 21. Tas PR r 22. As to this order in Tasmania, see 9.33–9.38. WA s 25(1). A statutory order, albeit alleviated by a confined statutory discretion in the court, has been recommended in Western Australia: Law Reform Commission of Western Australia, The Administration Act 1903, Project No 88, August 1990, pp 11–14. This recommendation has not, however, translated to legislation. ACT s 88(1). ‘Partner’, in relation to a deceased person, has the same meaning as it has in ACT Pt 3A (Intestacy) in relation to an intestate: ACT s 88(3) (see 9.29). ACT s 88(2). ACT s 89(1), (2). Within 1 month of the order being granted, the Public Trustee must, unless the court otherwise orders, twice give notice thereof as prescribed: ACT s 93. ACT s 97.

132. ACT s 90(1), (2). In this event, the part of the estate left unadministered by the Public Trustee, and his or her functions relating to it, vest in the personal reresentative so appointed: ACT s 91(2). 133. NSW Trustee and Guardian Act 2009 (NSW) s 23(1). 134. NSW Trustee and Guardian Act 2009 (NSW) s 25(1). 135. NSW Trustee and Guardian Act 2009 (NSW) s 25(4). 136. Public Trustee Act 1979 (NT) s 34(1), (3). It is not necessary for the Public Trustee to give notice of any such application to any person who may be entitled to the grant of letters of administration of the estate: NT s 34(5). 137. Public Trustee Act 1979 (NT) s 34(4). 138. Public Trustee Act 1978 (Qld) s 29(1)(a), (4A); Public Trustee Act 1930 (Tas) s 17(1). In Tasmania the Public Trustee, before making an application for administration, must give public notice in the prescribed form of the intention so to do, to be published 14 days before the application is made: Tas s 17(2). The notice is in lieu of a citation, and it is not necessary for the Public Trustee to take out or publish a citation: Tas s 17(3). 139. Public Trustee Act 1979 (NT) s 39(1); Public Trustee Act 1978 (Qld) s 29(1)(b)(v); Public Trustee Act 1930 (Tas) s 18(1). The Northern Territory legislation adds that, where the person entitled to the grant of probate or letters of administration with the will annexed makes application in this context, no costs are to be awarded against the Public Trustee and, unless the court otherwise orders, the Public Trustee will be entitled to his or her costs out of the estate of the deceased person: Public Trustee Act 1979 (NT) s 39(2). 140. Public Trustee Act 1978 (Qld) s 29(1)(b)(ii)–(iv), (vi), (2); Public Trustee Act 1930 (Tas) s 19(1). 141. Public Trustee Act 1978 (Qld) s 34. 142. Public Trustee Act 1995 (SA) s 9(1). 143. ‘Spouse’, in relation to a deceased person, means a person who was legally married to the deceased as at the date of his or her death: Public Trustee Act 1995 (SA) s 3. 144. ‘Domestic partner’, in relation to a deceased person, means a person declared under the Family Relationships Act 1975 (SA) to have been the domestic partner of the deceased as at the date of his or her death (see 16.42): Public Trustee Act 1995 (SA) s 3. 145. Public Trustee Act 1995 (SA) s 9(2). 146. Public Trustee Act 1995 (SA) s 9(3). 147. Public Trustee Act 1995 (SA) s 9(5) (but only if satisfied that the special circumstances of the case and the lapse of time since the making of the order justify the revocation in the case of an administration order of a kind referred to in s 9(2): s 9(7)). 148. State Trustees (State Owned Company) Act 1994 (Vic) s 5. 149. Public Trustee Act 1941 (WA) s 10(1). 150. See 10.14. 151. Tas s 14(1). 152. Tas s 14(1). The National Committee for Uniform Succession Laws did not favour a statutory minimum in this context, querying the assumption that the mere appointment of a second administrator secures greater protection (as there is no actual consideration of suitability in a noncontentious application) and expressing concern at the additional cost involved should the second administrator be the Public Trustee or a trustee company: QLRC, Report 65, Vol 1, p 117. 153. Bell v Timiswood (1812) 2 Phill 22 at 22; 161 ER 1066 at 1066 per Sir John Nicoll. 154. See, for example, In the Will of Harries (1891) 17 VLR 116 at 117 per A’Beckett J (noting the ‘general view’ that ‘it is inconvenient to grant a joint administration’, but on the facts made such an appointment because the only persons interested in the estate besides creditors were the two applicants, who desired the joint appointment); In the Will and Estate of McMurchy [1909] VLR 359

155. 156. 157. 158. 159. 160. 161. 162. 163. 164. 165.

166. 167. 168.

169.

170.

171. 172.

at 360–1 per Madden CJ (who acceded to the appointment of a joint administration where there was no objection by the beneficiaries and ‘[a]ll the facts point to the convenience and desirability of joint administration’). See 12.1. As to grants cum testamento annexo, see 11.38–11.41. As to the intestacy rules, see Chapter 9. See Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319 at 324–5 per Latham CJ, at 335 per Dixon J; BC4600010. This does not mean, however, that executors owe no duties vis-à-vis investing the estate prior to its distribution: see 12.25. As to executors’ power of sale, see 13.4–13.9. See 11.90–11.93. See Dal Pont, pp 670–1. See 10.72–10.80. See Dal Pont, pp 647–52, 653–4; Jacobs, pp 290–6, 314–17. Although the trustee legislation in each jurisdiction includes a ‘legal personal representative’ (or executor) within the ‘trustee’ definition (see P.16), it limits the statutory power to appoint trustees to ‘trustees’ proper (ACT ss 6(14), 70(7); NSW ss 6(12), 70(9); NT ss 11(7), 27(3); Qld ss 12(9), 80(4); SA ss 14(7), 36(3); Tas ss 13(6), 32(3); Vic s 48(2); WA ss 7(9), 77(4)). See, for example, Re Will of Orloff (deceased) (2010) 24 VR 603; [2010] VSC 48; BC201000774 at [27] per Robson J. See 10.81, 11.94–11.112. Re Blow [1914] 1 Ch 233 at 246 per Swinfen Eady LJ (‘An executor is not an express trustee for residuary legatees or next of kin’). Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 312; BC9002922 per the court. See also Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 at 707–8; BC6400550 per Viscount Radcliffe (PC) (affirming the judgment of the High Court of Australia: Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411; BC6000070); Re Leigh’s Will Trusts [1970] Ch 277 at 281–2 per Buckley J. Remarks in earlier Australian case law phrased in terms of beneficiaries of an unadministered estate having a beneficial interest in the items going to make up that estate (see, for example, McCaughey v Commissioner of Stamp Duties (1945) 46 SR (NSW) 192 at 204 per Jordan CJ; Smith v Layh (1953) 90 CLR 102 at 108–9; BC5300830 per Dixon CJ, Fullagar, Kitto and Taylor JJ) must be construed as adopting a loose conception of ‘beneficial interest’: Commissioner of Stamp Duties (Qld) v Livingston at 713. Guardian Trust and Executors Company of New Zealand v Hall [1938] NZLR 1020 at 1026 (CA); Connell v Bond Corporation Pty Ltd (1992) 8 WAR 352 at 368 per Malcolm CJ; Meynert v Leafdale Pty Ltd [2005] WASC 102; BC200503917 at [32]–[39] per Newnes M; Tobin v Ezekiel [2009] NSWSC 1313; BC200910805; Stacey v Stacey [2010] WASC 85; BC201002652. Cf Burns v Bayliss [2006] WASC 102; BC200604053. As to statutory provision for the lodgement of caveats preceding the grant of representation, see 11.24–11.27. Dr Barnardo’s Homes v Special Income Tax Commissioners [1921] 2 AC 1 at 8 per Viscount Finlay, at 10 per Viscount Cave; Re Gibbs (deceased) [1951] Ch 933 at 938 per Danckwerts J; Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 at 717 per Viscount Radcliffe (PC); Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 313–14; BC9002922 per the court. Halfhide v Beaven [2003] NSWSC 1207; BC200307893 at [59] per Barrett J. The relevant ‘interest’ is of such a kind that, when a beneficiary transmits a chose in action (or part thereof), or that chose in action passes by operation of law, such as under the Bankruptcy Act 1966

173. 174. 175. 176.

177. 178. 179.

180. 181. 182.

183. 184. 185. 186.

187.

(Cth), that transmission naturally encompasses not only the chose in action but also the expected fruits of that chose in action. So in Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; BC9002922 the High Court held that the respondent’s right to due administration vested in the Official Receiver as soon as it vested in the respondent, since it was ‘property’ as defined in s 5(1) of the Bankruptcy Act 1966 (Cth). An equivalent conclusion has been reached in England: Re Hemming (deceased) [2009] Ch 313; [2008] EWHC 2731 (Ch) at [49]–[67] per Richard Snowden QC. Re Leigh’s Will Trusts [1970] Ch 277 at 282 per Buckley J; Marshall (Inspector of Taxes) v Kerr [1995] 1 AC 148 at 157–8 per Lord Templeman, at 165–6 per Lord Browne-Wilkinson. See 10.47, 10.48. Pagels v MacDonald (1936) 54 CLR 519 at 526; BC3600034 per Latham CJ; Probert v Commissioner of State Taxation (1998) 72 SASR 48 at 53; BC9805205 per Olsson J. Re Hayes’ Will Trusts [1971] 2 All ER 341 at 347 per Ungoed-Thomas J; Halfhide v Beaven [2003] NSWSC 1207; BC200307893 at [42], [43] per Barrett J; Re Stewart [2003] 1 NZLR 809 at 815–16 per Laurenson J (rev’d on appeal but not on this point: Re Stewart [2004] 1 NZLR 354); Johnson v Trotter (2006) 12 BPR 23,339; [2006] NSWSC 67; BC200600661 at [21]–[23] per White J; Re Maguire (deceased) [2010] 2 NZLR 845 at [20], [21] per Asher J. Attenborough v Solomon [1913] AC 76 at 82 per Viscount Haldane LC. Hosken v Danahar [1911] VLR 214 at 226 per A’Beckett J; Re Heberley (deceased) [1971] NZLR 325 at 332 per Turner J. Pagels v MacDonald (1936) 54 CLR 519 at 526; BC3600034 per Latham CJ; McCaughey v Commissioner of Stamp Duties (1945) 46 SR (NSW) 192 at 209 per Jordan CJ (speaking in terms of constructive trusteeship where the appointment is as an executor only); Porteous v Rinehart (1998) 19 WAR 495 at 503; BC9804413 per White J; Re Rogowski (deceased) (2007) 248 LSJS 274; [2007] SASC 161; BC200703457 at [22] per Gray J (noting that, once a personal representative completes the duties of administration, his or her office as personal representative becomes functus officio). In the Australian Capital Territory and New South Wales the trustee legislation provides that an executor may, upon completing his or her executorial duties, declare by registered instrument in writing that he or she has ceased to hold the property as executor and now holds the property as trustee or as beneficiary, as the case may be: ACT s 11(1); NSW s 11(1). Attenborough v Solomon [1913] AC 76 at 85 per Viscount Haldane LC. Public Trustee v Kidd [1931] NZLR 1 at 5–6 per Adams J; Re Donkin (deceased) [1966] Qd R 96 at 117 per Gibbs J. [1919] VLR 716 at 728, delivering the judgment of the Full Court. See also Graham v Drummond [1896] 1 Ch 968 at 974 per Romer J (‘if an executor who is also residuary legatee sells or mortgages an asset of the testator for valuable consideration to a person who has no notice of the existence of unsatisfied debts of the testator, or of any ground which rendered it improper for the executor so to deal with the asset, that person’s purchase or mortgage is valid against any unsatisfied creditor of the testator’). ACT s 6; NSW s 6; NT s 11; Qld s 12; SA s 14; Tas s 13; Vic s 41; WA s 7. ‘ Re Cockburn’s Will Trust [1957] Ch 438 at 440 per Danckwerts J. See, for example, Estate of Dunn [1963] VR 165. See, for example, Re Timmis [1902] 1 Ch 176 at 182 per Kekewich J; In the Estate of Just (deceased) (No 2) (1974) 7 SASR 515 at 523 per Jacobs J; McLaughlin v Hannigan (SC(NSW), Windeyer J, 7 February 1996, unreported) BC9600129 at 21. Brougham v Poulett (1855) 19 Beav 119 at 134; 52 ER 294 at 300 per Romilly MR; Pagels v MacDonald (1936) 54 CLR 519 at 526; BC3600034 per Latham CJ.

188. Re Earl of Stamford [1896] 1 Ch 288 at 297 per Stirling J; Attenborough v Solomon [1913] AC 76 at 82– 3 per Viscount Haldane LC; Wise v Whitburn [1924] 1 Ch 460 at 468–9 per Eve J; Re Cockburn’s Will Trusts [1957] Ch 438 at 439–40 per Danckwerts J; Re Donkin (deceased) [1966] Qd R 96 at 119 per Gibbs J; Porteous v Rinehart (1998) 19 WAR 495 at 503; BC9804413 per White J; H Stanke & Sons Pty Ltd v Von Stanke (2007) 250 LSJS 149; [2007] SASC 282; BC200705757 at [113] per Sulan J. 189. Re Timmis [1902] 1 Ch 176 at 183 per Kekewich J; Attenborough v Solomon [1913] AC 76 at 85 per Viscount Haldane LC; In the Estate of Just (deceased) (No 2) (1974) 7 SASR 515 at 524 per Jacobs J; McLaughlin v Hannigan (SC(NSW), Windeyer J, 7 February 1996, unreported) BC9600129 at 21. See, for example, In the Will of Henry Clinton (1910) 10 SR (NSW) 465. 190. See 12.1. 191. In the Estate of Just (deceased) (No 2) (1974) 7 SASR 515 at 523 per Jacobs J. 192. As noted elsewhere (see 11.68), at common law a deceased’s real estate vested immediately in the deceased’s heirs, and thereby bypassed the executor, whereas the personal estate passed directly to the executor. The dichotomy between the real and the personal estate dictated that the common law required no assent by the executor to perfect the title of the beneficiaries to the deceased’s real estate. After all, the beneficiaries received title as and from the date of the deceased’s death. That the personal estate vested in the executor in first instance meant, as noted above, that the beneficiaries secured no title to that part of the estate while the executor’s function(s) vis-à-vis that part remained to be completed. There was correspondingly a need to determine the moment at which the beneficiaries received their title — whether fully or, where the executors have become trustees or have transferred the estate to trustees under the will — which the common law marked by what it termed the ‘assent’ of the executor: Attenborough v Solomon [1913] AC 76 at 82–5 per Viscount Haldane LC; Wise v Whitburn [1924] 1 Ch 460 at 468–9 per Eve J; Burke v Dawes (1938) 59 CLR 1 at 19; BC3800052 per Dixon J. That statute subsequently assimilated real estate with personal estate for most purposes (see 11.69, 11.70) has not, subject to specific statutory provision, altered the need for assent in the context of the personal estate at the exclusion of the real estate. Indeed, the New South Wales probate legislation contains a specific provision to the effect that real estate shall not be divested from an executor or administrator and vested in another person who may be entitled thereto ‘otherwise than by a registered conveyance, or by an acknowledgment operating under section 83, or by registration under the provisions of the Real Property Act 1900’: NSW s 46E(1). It has been judicially observed that, via s 46E, the legislature has altered the common law ‘so that instead of an assent, formal or informal, there must be registration under the provisions of the Real Property Act’: Consolidated Development Pty Ltd v Holt (1986) 6 NSWLR 607 at 615 per Young J. Under s 83, referred to in s 46E(1), when any real estate not under the provisions of the Real Property Act 1900 (NSW) is devised to any person by a will, the personal representative may, in that capacity, instead of executing a conveyance to such person, sign an acknowledgment in the prescribed form that the devisee is entitled to such real estate. Such acknowledgment may be registered under the Acts in force regulating the registration of deeds, and upon registration the real estate will vest in the devisee in the same way and subject to the same trusts and liabilities as if the personal representative had executed a conveyance of the same. Equivalent provision to NSW s 83 is found in ACT s 56. 193. On assents generally, see Williams, Mortimer and Sunnucks, Ch 81. 194. In the Estate of Just (deceased) (No 2) (1974) 7 SASR 515 at 524 per Jacobs J. 195. [1961] SR (NSW) 396 at 399 (FC). See also Kemp v Commissioners of Inland Revenue [1905] 1 KB 581 at 585 per Phillimore J (‘the legal estate in a chattel real, which has become vested in an executor by reason of the will of his testator coupled with probate of the will, [can] pass to the specific legatee or devisee of the chattel real without a formal assignment by deed … [T]he legal estate can so pass, and

196.

197.

198. 199. 200. 201. 202. 203. 204.

205. 206. 207. 208. 209. 210. 211. 212. 213. 214. 215. 216.

that the only thing requisite to put the specific devisee or legatee in possession of the term is the will of the testator with the assent of the executor, and that in fact the legatee of a specific term gets the legal estate in that term, just as the legatee of a specific chattel gets the ownership of that chattel by the will of the testator, the assent of the executor merely meaning that he no longer requires the chattel real or personal for payment of the debts, funeral expenses, or general pecuniary legacies of his testator’); Re West [1909] 2 Ch 180 at 182 per Swinfen Eady J. [1961] SR (NSW) 396 at 399, citing from F Whitmarsh, Toller’s Law of Executors and Administrators, 6th ed, Butterworth, London, 1827, p 306. See also Re Cunliffe-Owen [1953] Ch 545 at 563 per Denning LJ; Ex parte Kenzler [1983] 2 Qd R 281 at 287 per McPherson J. Re West [1909] 2 Ch 180 (where the ‘relation back’ principle was applied even though the subject of the bequest was initially distributed to the wrong person, Swinfen Eady J remarking that ‘[t]he executor can only assent to the legacy in favour of the legatee to whom it is given, not in favour of a stranger’: at 186); Commissioners of Inland Revenue v Hawley [1928] 1 KB 578 at 583 per Rowlatt J. Dr Barnardo’s Homes National Incorporated Association v Commissioners for Special Purposes of the Income Tax Acts [1921] AC 1 at 11 per Lord Atkinson. Kemp v Commissioners of Inland Revenue [1905] 1 KB 581 at 587 per Phillimore J; Attenborough v Solomon [1913] AC 76 at 83 per Viscount Haldane LC. Re Campbell (deceased) [1968] VR 46 at 58 per Menhennitt J. See, for example, Corporations Act 2001 (Cth) s 1072F(1) (‘A person transferring shares remains the holder of the shares until the transfer is registered and the name of the person to whom they are being transferred is entered in the register of members in respect of the shares’). Qld s 49(1). Tas s 36(1) (note the prescribed form for the assent relating to land under the Land Titles Act 1980 (Tas)); Vic s 41(1) (note the prescribed form for the assent relating to land under the Transfer of Land Act 1958 (Vic): Vic s 41(10)). Tas s 36(4); Vic s 41(4) (which adds that ‘an assent not in writing or not in favour of a named person shall not be effectual to pass a legal estate’). See R A Sundberg, ‘Assents by Personal Representatives to the Vesting of Real Estate’ (1975) 49 ALJ 678. Tas s 36(2); Vic s 41(2). Re Cunliffe-Owen [1953] Ch 545 at 559 per Evershed MR, at 565 per Romer LJ. Inland Revenue Commissioners v Smith [1930] 1 KB 713 at 736 per Lawrence LJ. See, for example, Re Hird and Hickey’s Contract [1919] VLR 717 at 727 per Schutt J, delivering the reasons of the Full Court. Re Donkin (deceased) [1966] Qd R 96 at 119–20 per Gibbs J. Attenborough v Solomon [1913] AC 76 at 83 per Viscount Haldane LC; Re Donkin (deceased) [1966] Qd R 96 at 118 per Gibbs J. Inland Revenue Commissioners v Smith [1930] 1 KB 713 at 733 per Lord Hanworth MR. See, for example, Attenborough v Solomon [1913] AC 76 at 83 per Viscount Haldane LC. See, for example, Re Donkin (deceased) [1966] Qd R 96 at 119–20 per Gibbs J. See, for example, Attenborough v Solomon [1913] AC 76 at 83 per Viscount Haldane LC (where the residuary account had been passed and some 14 years had elasped since the testator’s death). Holdway v Arcuri Lawyers [2009] 2 Qd R 18; [2008] QCA 218; BC200806892 at [75], [76] per Keane JA, with whom McMurdo P and Mackenzie AJA concurred. This is something a personal representative is entitled to do as part of the administration: see, for example, Burke v Dawes (1938) 59 CLR 1 at 13–14 per Starke J, at 19–21 per Dixon J, at 28–9 per McTiernan J; BC3800052. The point is explicitly addressed by the probate legislation in Tasmania

217. 218. 219. 220. 221. 222.

223.

224. 225.

226.

227.

228. 229. 230. 231. 232.

and Victoria, which empowers a personal representative, before giving an assent or making a conveyance in favour of any person entitled, to permit that person to take possession of the land, which does not prejudicially affect the right of the personal representative to take or resume possession nor the power to convey the land as if the personal representative were in possession of it, but subject to the interest of any lessee, tenant, or occupier in possession or in actual occupation of the land: Tas s 42(1); Vic s 48(1). [1968] VR 46 at 60–1 per Menhennitt J. Attenborough v Solomon [1913] AC 76 at 85 per Viscount Haldane LC. Tas s 36(7); Vic s 41(6). Tas s 36(8); Vic s 41(7). Income Tax Assessment Act 1936 (Cth) s 6(1). As ‘legal disability’ is not defined by the Income Tax Assessment Act 1936 (Cth), it takes its ordinary meaning, referring to a person who is unable to give a trustee an immediate valid discharge in respect of a distribution of trust income: Taylor v Federal Commissioner of Taxation (1970) 119 CLR 444 at 450; BC1000110 per Kitto J. Typical examples include minors, undischarged bankrupts and insane persons. Taylor v Federal Commissioner of Taxation (1970) 119 CLR 444 at 452; BC7000170 per Kitto J. See also Federal Commissioner of Taxation v Whiting (1943) 68 CLR 199 at 215–16; BC4300033 per Latham CJ and Williams J (‘The words “presently entitled to a share of income” refer to a right to income “presently” existing, ie, a right of such a kind that a beneficiary may demand payment of the income from the trustee’), at 219 per Starke J (‘a beneficiary is not … presently entitled to income unless it can be established that there is income which he is presently entitled to receive; that he is entitled to obtain payment thereof from the trustee’). (1943) 68 CLR 199 at 216; BC4300033. Income Tax Rates Act 1986 (Cth) s 12(6), Sch 10 cll 1, 2. See Re Trustee for Estate of Dukes v Federal Commissioner of Taxation (2002) 50 ATR 1060; [2002] AATA 574. Pursuant to Tax Ruling IT2622 the Commissioner of Taxation allows the temporal apportionment of income within the year of income in which the estate becomes fully administered (and therefore the beneficiaries become presently entitled) as between the estate and the beneficiaries; for the time preceding the completion of the administration in that year, income is assessed in the hands of the personal representatives (under s 99 of the Income Tax Assessment Act 1936 (Cth)), and only thereafter is the income assessed in the hands of the beneficiaries (whether under ss 97 or 98 of the Income Tax Assessment Act 1936). This assumes that the Federal Commissioner of Taxation elects to tax the trustee under s 99 of the Income Tax Assessment Act 1936 (Cth) — pursuant to which the ordinary marginal rates apply — rather than s 99A. Under the latter section, income is taxed at the highest marginal rate. Unless there are indications of tax avoidance or evasion, the Commissioner ordinarily exercises a discretion to tax income from a deceased estate under s 99 before administration is completed. This reflects the basic notion underscoring the scheme of taxation that ‘the person who derives the income should be in a position to pay the tax out of the income’: Federal Commissioner of Taxation v Whiting (1943) 68 CLR 199 at 215; BC4300033 per Latham CJ and Williams J. (1937) 56 CLR 774; BC3700020 at 780 per Latham CJ, at 781 per Dixon J. Income Tax Assessment Act 1936 (Cth) s 101A(1) (emphasis supplied). (1964) 110 CLR 177; BC6400130 (see at 189–90 per Menzies J, at 191–3 per Owen J; contra at 188–90 per Kitto J, dissenting). Income Tax Assessment Act 1997 (Cth) s 995-1(1). Income Tax Assessment Act 1997 (Cth) s 108-5(1).

233. The ‘main residence exemption’ is contained in Income Tax Assessment Act 1997 (Cth) subdiv 118B. 234. Known as ‘CGT event’ A1: see Income Tax Assessment Act 1997 (Cth) s 104-10. 235. These exceptions apply where the asset passes to a beneficiary that is: (1) an entity the income of which is exempt from tax; (2) the trustee of a complying superannuation entity; or (3) a foreign resident: Income Tax Assessment Act 1997 (Cth) s 104-215 (CGT event K3). 236. The beneficiary is deemed to have acquired the asset at its market value at the date of death: Income Tax Assessment Act 1997 (Cth) s 128-15(4) (item 4). 237. Income Tax Assessment Act 1997 (Cth) s 128-15(1), (2), (4) (item 1). Different rules apply, however, if the asset passes to a beneficiary who is: (1) the trustee of a complying superannuation entity (see Income Tax Assessment Act 1997 (Cth) s 128-25); (2) an entity the income of which is exempt from income tax (see Income Tax Assessment Act 1936 (Cth) Sch 2D Div 57); or (3) a non-resident (Income Tax Assessment Act 1997 (Cth) Div 855-B). 238. Income Tax Assessment Act 1997 (Cth) s 128-15(3). 239. As to the intestacy rules, see Chapter 9. 240. As to the power to appropriate see, 13.15–13.21. 241. Income Tax Assessment Act 1997 (Cth) s 128-20(1). 242. Income Tax Assessment Act 1997 (Cth) s 128-20(2). 243. Income Tax Assessment Act 1997 (Cth) s 108-7. 244. Income Tax Assessment Act 1997 (Cth) s 128-50(2). 245. Income Tax Assessment Act 1997 (Cth) s 128-50(3). 246. Income Tax Assessment Act 1997 (Cth) s 128-50(4). 247. Duties Act 1999 (ACT) s 69; Duties Act 1997 (NSW) s 63; Stamp Duty Act 1978 (NT) s 4(1), Sch 2 (meaning of ‘exempt instrument or transaction’); Duties Act 2001 (Qld) s 124; Stamp Duties Act 1923 (SA) s 4(1), Sch 2 (see Pt 2 cll 1, 19); Duties Act 2001 (Tas) ss 47(1), 53(j); Duties Act 2000 (Vic) s 42; Duties Act 2008 (WA) s 139. 248. Douglas v Forrest (1828) 4 Bing 686 at 704; 130 ER 933 at 940 per Best CJ. 249. The position may be different if the undertaking is supported by consideration, and is thus contractual, or if there are grounds for an estoppel, although in each of these cases the remedy, if any, will be monetary rather than to compel the performance of the executorial function. 250. ACT s 20; NSW s 69; NT s 28; Qld s 46; SA s 36; Tas s 8; Vic s 16(1); WA s 32. These provisions owe their genesis to s 79 of the Court of Probate Act 1857 (UK) and more recently s 5 of the Administration of Estates Act 1925 (UK). 251. In the Goods of Morant (1874) LR 3 P&D 151 at 152–3 per Sir J Hannen. 252. See, for example, Re Clout & Frewer’s Contract [1924] 2 Ch 230 (inaction for nearly 30 years treated as sufficient indication by the named executor never to act); Scarpuzza v Scarpuzza (2011) 4 ASTLR 244; [2011] WASC 65; BC201101263 at [46]–[49] per E M Heenan J; Banyard v Duirs [2013] WASC 146; BC201302286 at [7], [8] per E M Heenan J. 253. Doyle v Blake (1804) 2 Sch & Lef 231 at 245 per the Lord Chancellor. Cf In the Goods of Loftus (1864) 3 Sw & Tr 307; 164 ER 1293 (where Sir J P Wilde viewed the rule that no person who renounces probate or letters of administration in one character can take representation in another character ‘as intended for the general guidance of the business in the registry, and capable of modification by the Court, if sufficient reason be shewn for departure from it’: at 311; 1295). 254. In the territories this is prescribed by the probate statutes (see ACT s 20A(1); NT s 29) whereas elsewhere it derives from the trustee legislation (see NSW s 10(1); Qld s 18; Vic s 46(1); WA s 12(1)). 255. SA PR r 48.03; Tas PR r 67(1).

256. 257. 258. 259.

260.

261. 262.

263. 264. 265. 266. 267. 268. 269. 270. 271. 272. 273. 274.

275.

In the Goods of Gill (1873) LR 3 P & D 113 at 115 per Sir J Hannen. ACT CPR r 3014; NT RSC r 88.13; SA PR r 48.04; Tas PR r 67(2); WA 1967 r 28. What amounts to intermeddling for this purpose is discussed at 10.17, 10.18. In the Goods of Badenach (1864) 3 Sw & Tr 465 at 467; 164 ER 1356 at 1357 per Sir J P Wilde; Re Will of Orloff (deceased) (2010) 24 VR 603; [2010] VSC 48; BC201000774 at [12], [20], [21] per Robson J (noting (at [14]) that in Victoria the usual procedure is for the named executor to execute and file in the Probate Registry a form of renunciation, and it is the practice to require the executor, as part of the formal act of renunciation, to declare that he has not intermeddled in the estate: Will of Lyndon [1960] VR 112 at 113 per Pape J); Chambers Estate v Chambers [2013] ONCA 511 at [66] per Gillese JA. Will of Lyndon [1960] VR 112 at 114 per Pape J (where even though the appointed executor had intermeddled with the estate to such an extent that it would have precluded him from making a renunciation in normal circumstances, as the beneficiaries under the will were content to accept the executor’s renunciation, Pape J accepted the renunciation). In the Goods of Davis (1860) 2 Sw & Tr (Supp) 213; 164 ER 1498; In the Goods of Fell (1861) 2 Sw & Tr 126; 164 ER 941. Trustee Companies Act 1947 (ACT) s 7(1) (with the will annexed, albeit not where the testator by his or her will has expressed the desire that the office of administrator should not be held by a trustee company or that particular trustee company: ss 7(2)), 8(1) (intestacy); Trustee Companies Act 1964 (NSW) s 6(1); Companies (Trustees and Personal Representatives) Act 1981 (NT) ss 15 (with the will annexed), 17 (intestacy); Trustee Companies Act 1968 (Qld) ss 6(1) (does not apply where the testator by will has expressed the desire that the office of executor should not be delegated or that the trustee company should not act in the trusts of the will), 7(1) (intestacy); Trustee Companies Act 1984 (Vic) s 11(1); Trustee Companies Act 1987 (WA) ss 6(1) (probate), 7(1) (administration with the will annexed), 8(1) (intestacy) (in each case does not apply where the testator by the will has expressed the desire that the office of executor or administrator should not be delegated or should not be delegated to a trustee company: ss 6(2), 7(2), 8(2)). Trustee Companies Act 1953 (Tas) s 9. Trustee Companies Act 1953 (Tas) s 6. Trustee Companies Act 1947 (ACT) s 5; Trustee Companies Act 1964 (NSW) s 5; Companies (Trustees and Personal Representatives) Act 1981 (NT) s 16(1); Trustee Companies Act 1953 (Tas) s 8. Trustee Companies Act 1984 (Vic) s 10. Trustee Companies Act 1947 (ACT) s 6(1), (2); Companies (Trustees and Personal Representatives) Act 1981 (NT) s 16(2); Trustee Companies Act 1953 (Tas) s 10(1), (2). Trustee Companies Act 1968 (Qld) s 9(1). Trustee Companies Act 1968 (Qld) s 9(4). Trustee Companies Act 1968 (Qld) s 9(2). Trustee Companies Act 1988 (SA) s 4(2). Trustee Companies Act 1988 (SA) s 4(3). Trustee Companies Act 1988 (SA) s 4(4). The National Committee for Uniform Succession Laws has recommended against including a provision of this kind in model legislation, reasoning that ‘it is better for all the provisions dealing with the appointment of trustee companies and the public trustee as personal representatives to be located in the trustee company legislation and the public trustee legislation of the various jurisdictions’: QLRC, Report 65, Vol 1, p 173. Any such deed must be registered in the office of the Registrar-General in the manner and on

276. 277. 278.

279. 280. 281. 282. 283. 284. 285. 286. 287.

288. 289. 290.

291.

292. 293.

294. 295. 296. 297. 298.

payment of the fees prescribed by regulation under the Conveyancing Act 1919 (NSW): NSW s 75A(8). A duly verified copy of any such deed must be filed in the registry of the court: NSW s 75A(9). NSW s 75A(1). NSW s 75A(3). Namely to: (a) the co-executor or co-administrator (if any) of such person; and (b) such of the persons entitled beneficially under the will or in consequence of the intestacy of the deceased person of whose will or estate the person proposing to make the appointment is executor or administrator, as are ordinarily resident in Australia and have attained the age of 18 years: NSW s 75A(4). NSW s 75A(4)–(6). NSW s 75A, as to which see 10.62. State Trustees (State Owned Company) Act 1994 (Vic) s 4(1), (2). Public Trustee Act 1941 (WA) s 12(1)–(3). Public Trustee Act 1941 (WA) s 12(6). Tas s 9; Vic s 16(2). These provisions owe their genesis to s 6(1) of the Administration of Estates Act 1925 (UK), and find a counterpart in s 12 of the Administration Act 1969 (NZ). In South Australia, to be made to the registrar by summons; in Tasmania, to a judge in chambers. SA PR r 48.06; Tas PR r 67(3), (4). Cf the National Committee on Uniform Succession Laws, which did not favour the ‘exceptional circumstances’ test, the reason being that it ‘does not sufficiently indicate the circumstances that will weigh in favour of permitting retraction’; in its place it recommended a test grounded in whether ‘the court is satisfied that it would be to the detriment of the estate or the persons interested in the estate for the person appointed as administrator to continue as administrator’: QLRC, Report 65, Vol 1, p 67. As to the general law’s disinclination in this context, see 10.65. SA PR r 48.07. Robinson v Pett (1734) 3 P Wms 249 at 251; 24 ER 1049 at 1051 per the Lord Chancellor (‘The defendant’s renouncing the executorship is not material, because he is still at liberty, whenever he pleases, to accept of the executorship’); M’Donnell v Prendergast (1830) 3 Hagg Ecc 212 at 214; 162 ER 1134 at 1135 (‘I have always understood the rule to be, that an executor is at liberty to retract at any time before the Court has acted by its seal. Till then the renunciation is not binding on the party; and might, under circumstances, be disallowed by the Court’); Re Foster [1930] NZLR 60. Hensloe’s Case (1599) 9 Coke 36 at 37a; 77 ER 784 at 787 (‘if all [executors] refuse before the Ordinary, and the Ordinary commits administration to another, there they cannot afterwards administer’). [1898] P 12. In the Goods of Stiles [1898] P 12 at 14, referring to In the Goods of Badenach (1864) 3 Sw & Tr 465 at 466; 164 ER 1356 at 1357 per Sir J P Wilde (‘There is nothing in it to prevent the Court from allowing a retraction according to the old practice in a case fit for it’). Re Lawrence (deceased) [1982] VR 826 at 828 per Brooking J. In the Goods of Stiles [1898] P 12 at 15 per Sir F H Jeune P. In the Goods of Stiles [1898] P 12 at 13–14. See, for example, Tristram and Coote’s Probate Practice, 25th ed, 1978, Butterworths, London, p 463; Re Foster [1930] NZLR 60. [2001] NSWSC 144; BC200100794 at [17]. See also QLRC, Report 65, Vol 1, p 66 (where the National Committee on Uniform Succession Laws phrased the ‘appropriate general test’ in terms of

299. 300. 301. 302. 303.

304. 305. 306. 307. 308.

309.

310.

311. 312.

313. 314. 315. 316. 317. 318. 319. 320. 321.

whether ‘the court is satisfied that the retraction would be for the benefit of the estate or of the persons interested in the estate’). Re Estate of Thurston [2001] NSWSC 144; BC200100794 at [18]. [1982] VR 826. Re Lawrence (deceased) [1982] VR 826 at 830. In the Goods of Thornton (1826) 3 Add 273; 162 ER 479. In the Goods of Thornton (1826) 3 Add 273 at 274–5; 162 ER 479 at 480 (the court querying: ‘[s]hould this deceased, for instance, it was objected by the office, have been the surviving executor of other testators, and should administrations have been granted of their effects, on the renunciation of his executors, if the chain of executorship were to revive, as now proposed, there would be double and conflicting representations of such testators; the one by grant of administration, as above; the other, by the revived chain of executorship’). SA PR r 48.06; Tas PR r 67(4): see 10.64. See, for example, In the Goods of Thacker [1900] P 15; In the Estate of Heathcote [1913] P 42. Ontario Law Reform Commission, Administration of Estates of Deceased Persons, 1991, p 31. See 11.94–11.107. It follows that the case law on revocation of representation assumes direct relevance principle-wise in this context: Re Tsaknis [2010] WASC 152; BC201004162 at [62] per E M Heenan J (referring to the classic revocation cases of In the Goods of Loveday [1900] P 154, Bates v Messner (1967) 67 SR (NSW) 187 and Mavrideros v Mack (1998) 45 NSWLR 80; BC9808010, which are discussed at 11.95). See generally Re Swale [1960] SASR 391 at 394 per Napier J; In the Estate of Smith (deceased) (1972) 2 SASR 477 at 478–9 per Walters J; Re Estate of Crane (2005) 93 SASR 198; [2005] SASC 379; BC200507366 at [15]–[30] per Besanko J. Re Hunter (deceased) [1932] NZLR 911 at 932–3 per Ostler J (‘One of the oldest rights possessed by a testator is the right to choose his own personal representative. The Courts have always respected and upheld that right as sacred’); Re Tsaknis [2010] WASC 152; BC201004162 at [60], [61] per E M Heenan J. Evans v Tyler (1849) 2 Rob Ecc 128 at 131; 163 ER 1266 at 1267 per Sir Herbert Jenner Fust. Stainton v Carron Company (1854) 18 Beav 146 at 161; 52 ER 58 at 63 per Sir John Romilly MR (remarking that the court will not ‘lightly interfere with the discretion so reposed by the testator’). See further 11.98–11.101. Re Jensen [1998] 2 Qd R 374 at 379–80 per Ambrose J. [1998] 2 Qd R 374. Pursuant to s 29 of the Public Trustee Act 1978 (Qld): see 10.36. Re Jensen [1998] 2 Qd R 374 at 379. Re Jensen [1998] 2 Qd R 374 at 379. Re Jensen [1998] 2 Qd R 374 at 383–4. See, for example, Re Sorrell (deceased) [2015] SASC 68; BC201503361 (where Gray J replaced the appointed executor who suffered from paranoia and schizophrenia: at [36]). See, for example, In the Goods of Chapman [1903] P 192 (where the person entitled to administration had disappeared over 20 years earlier, and was in all probability dead). See, for example, In the Goods of Sawtell (deceased) (1862) 2 Sw & Tr 448; 164 ER 1070 (where the deceased appointed ‘William George, of No 4 Finsbury Square, watchmaker’ as executor, but following the deceased’s death there was evidence that no one could be located who matched the description of the executor named in the will and that the deceased’s friends and relatives did not

322. 323. 324. 325. 326. 327. 328.

329.

330.

331. 332.

333. 334.

335.

know anyone of that description; as the interested parties had consented, Sir C Cresswell found it appropriate to grant letters of administration cum testamento annexo to one of the residuary legatees); Re Estate of Mathews (deceased) [2011] SASC 227; BC201109974 (similar case where no person could be located who matched the description of the sole nominated executor; Gray J ‘passed over’ the nominated executor; even though he was of the view that further investigations could be undertaken to find that person, the small size of the estate made it inexpedient for further costs to be incurred for this purpose). See 10.71. See 10.70. See, for example, Re Paine’s Estate (1916) 115 LT 935; Telfer v Telfer (No 2) [2013] NSWSC 823; BC201310365. See, for example, In the Estate of Leguia [1934] P 80; In the Estate of Biggs (deceased) [1966] P 118; In the Estate of Shephard (deceased) (1982) 30 SASR 1; Cossens v Petta [2014] WASC 117; BC201402307. See, for example, Re Toole [1913] 2 IR 188. Telfer v Telfer (No 2) [2013] NSWSC 823; BC201310365 at [8] per Slattery J. Hathornthwaite v Russel (1740) 2 Atk 126 at 127; 26 ER 480 at 480 per the Lord Chancellor. Indeed, there were indications to the same effect before this time: see, for example, Hills v Mills (1691) 1 Salk 36; 91 ER 37; R v Raines (1698) 1 Ld Raym 361 at 363–4; 91 ER 1138 at 1139–40 per Holt CJ. See, for example, Re Legh (deceased) (1889) 15 VLR 816 at 819 per Hodges J (‘A man who is not able to keep himself practically out of the Insolvent Court, who is at the time an insolvent, is not a proper person to choose to manage the affairs of others’); In the Estate of Nowland (deceased) (1906) 6 SR (NSW) 289 at 290 per Walker J (‘it is competent to appoint a bankrupt an administrator, but that is only in exceptional cases; an objection to appoint bankrupts is strongly marked by the Courts’). See, for example, Bowen v Phillips [1897] 1 Ch 174 (where Kekewich J applied the court’s jurisdiction to restrain an executor who has become bankrupt since the death of the testator from further acting as executor). Cf Stainton v Carron Co (1854) 18 Beav 146 at 161; 52 ER 58 at 63–4 per Sir John Romilly MR (‘The circumstance that an executor has been insolvent may be a reason for this Court interfering and appointing a receiver; but if the person selected by the testator for this office was an insolvent debtor at the date of the testator’s will, and was selected by the testator for this office, with a full knowledge that the person chosen was such insolvent debtor, this Court will not, on that ground alone, interfere to take the property out of the hands of such executor’). Bowen v Phillips [1897] 1 Ch 174. See, for example, Re Drawner (1913) 108 LT 732 (where the executor named in the will was in prison for perverting the course of justice for bringing a fraudulent action against the deceased); In the Estate of S (deceased) [1968] P 302 (where the executrix was serving a gaol sentence for the manslaughter of the deceased); Re Pedersen (SC(NSW), Holland J, 17 June 1977, unreported) (where the executor named in the testatrix’s will had been convicted of murdering her and remained in prison). As to administration cum testamento annexo, see 11.38–11.41. See, for example, Bain v Morabito (SC(NSW), Powell J, 14 August 1992, unreported) BC9201674 at 18 (where the intestate’s wife had been convicted of his manslaughter). See, for example, Smethurst v Tomlin and Bankes (1861) 2 Sw & Tr 143; 164 ER 947 (as ‘an executor who has obtained probate, notwithstanding a conviction of felony … may continue to act as executor, and maintain actions and exercise all other rights of an executor’, there was no reason in principle from precluding such a person from asking for, and being granted, probate: at 146; 949). As to the forfeiture rule, see 7.47–7.70.

336. Re Estate of Luxton (2006) 96 SASR 218; [2006] SASC 371; BC200610328; Pike v Pike [2015] QSC 134; BC201504125 at [27], [28] per Atkinson J. 337. (1831) 2 Russ & My 710 at 715; 39 ER 565 at 567. 338. As to the revocation of a grant generally, see 11.94–11.112. 339. ACT s 32(2), (3); NT s 41(1); Qld UCPR r 642(1)(b); Vic s 34(1). See In the Will and Estate of Keys (deceased) [1909] VLR 325 at 326 per Madden CJ. 340. See, for example, Mann v Grantham [2004] VSC 156; BC200402763 (involving an application for directions by two executors between whom irreconcilable differences persisted; an issue was whether one executor should be allowed to retire, and Byrne J expressed ‘no doubt’ that the court possessed the power to permit an executor to retire, and in the circumstances considered that the proper administration of the estate justified the exercise of this power: at [19], [20]). 341. WA s 20(1) (‘A personal representative may at any time, by leave of the court, and on such conditions as the court may impose, relinquish his trust to such person as the court may appoint’). 342. Cf Uniform Probate Code (US), §3–610(c), which addresses the point other than by leave of the court. It entitles a personal representative to resign by filing a written statement of resignation with the registrar after giving at least 15 days’ written notice to the persons known to be interested in the estate. However, if no one applies or petitions for appointment of a successor representative within the time indicated in the notice, ‘the filed statement of resignation is ineffective as a termination of appointment and in any event is effective only upon the appointment and qualification of a successor representative and delivery of the assets to him’. 343. The Western Australian legislation makes explicit provision to this effect: WA s 20(2). The same applies upon the retirement — pursuant to the terms of the trustee legislation — of an executor who has become a trustee: Custodial Ltd v Cardinal Financial Services Ltd [2005] 2 Qd R 115; [2004] QSC 452; BC200408801 at [46] per Atkinson J. 344. See, for example, Re Estate of Benjamin (deceased) [2016] SASC 84; BC201604523 (where Stanley J revoked the grant of probate to the two executors under the will (solicitors) who sought to retire because one of the beneficiaries was threatening them, which was in turn affecting the proper administration of the estate; the Public Trustee was appointed in their place). As to revocation of probate or administration, see 11.94–11.112. 345. Trustee Companies Act 1947 (ACT) s 14(1); Trustee Companies Act 1964 (NSW) s 15; Companies (Trustees and Personal Representaitives) Act 1981 (NT) s 21(1); Trustee Companies Act 1968 (Qld) s 20(1), (2); Trustee Companies Act 1953 (Tas) s 15(1); Trustee Companies Act 1984 (Vic) s 17(1). 346. Trustee Companies Act 1968 (Qld) s 20. 347. Trustee Companies Act 1953 (Tas) s 14; Trustee Companies Act 1984 (Vic) s 16; Trustee Companies Act 1987 (WA) s 14. 348. This makes explicit that the NSW Trustee has power to accept an appointment jointly with others, the omission of which in earlier legislation was lamented by Street J in In the Will of Major (1914) 14 SR (NSW) 126 at 129–30. 349. NSW s 75A(2). 350. NSW s 75A(2). 351. NSW s 75A(3). 352. Namely to: (a) the co-executor or co-administrator (if any) of such person; and (b) such of the persons entitled beneficially under the will or in consequence of the intestacy of the deceased person of whose will or estate the person proposing to make the appointment is executor or administrator, as are ordinarily resident in Australia and have attained the age of 18 years: NSW s 75A(4). 353. NSW s 75A(4)–(6).

354. In Queensland, the court’s consent is not required if the gross value of the assets requiring administration does not exceed $150,000 and any required consent to the appointment has been obtained: Public Trustee Act 1978 (Qld) s 31(2A). 355. Public Trustee Act 1979 (NT) s 33(1); Public Trustee Act 1978 (Qld) s 31(2); Public Trustee Act 1995 (SA) s 15(1). 356. Public Trustee Act 1995 (SA) s 15(1), (3). 357. Public Trustee Act 1930 (Tas) s 15(1), (4). 358. NSW s 75A, as to which see 10.62. 359. As to the translation from executor to trustee, see 10.46. 360. ACT s 8; NSW s 8; NT s 12; Qld s 14; SA s 15; Tas s 14; Vic s 44; WA s 9. See, for example, Re Cockburn’s Will Trusts [1957] Ch 438 at 439–40 per Danckwerts J (dealing with the equivalent English provision, s 36 of the Trustee Act 1925 (UK)). The same does not apply at a time preceding translation to trusteeship because, although the trustee legislation in each jurisdiction includes a ‘legal personal representative’ (or executor) within the ‘trustee’ definition (see P.16), it limits the statutory power to appoint trustees to ‘trustees’ proper (ACT ss 6(14), 70(7); NSW ss 6(12), 70(9); NT ss 11(7), 27(3); Qld ss 12(9), 80(4); SA ss 14(7), 36(3); Tas ss 13(6), 32(3); Vic s 48(2); WA ss 7(9), 77(4)). See, for example, Re Will of Orloff (deceased) (2010) 24 VR 603; [2010] VSC 48; BC201000774 at [27] per Robson J. 361. ‘Trustee corporation’ in each jurisdiction means a trustee company and (other than in the Australian Capital Territory and Victoria) the Public Trustee (or equivalent): Civil Law (Property) Act 2006 (ACT) s 256(8); Conveyancing Act 1919 (NSW) s 7(2) (NSW Trustee and Guardian); Tas s 3(1); Vic s 47(1) (refers only to a trustee company); WA s 17A(1) (expressly refers to the Public Trustee). 362. Civil Law (Property) Act 2006 (ACT) s 256(1), (2); Conveyancing Act 1919 (NSW) s 151D(1)(a); Tas s 41(1); Vic s 47(1); WA s 17A(1). The Australian Capital Territory and New South Wales legislation adds that, if the personal representatives are a trustee company, or a trustee company and one or more individuals, they may appoint the trust company either alone or with one or two individuals to be the trustees for the minor: Civil Law (Property) Act 2006 (ACT) s 256(3); Conveyancing Act 1919 (NSW) s 151D(1)(b). 363. Civil Law (Property) Act 2006 (ACT) s 256(5); Conveyancing Act 1919 (NSW) s 151D(1)(d); Tas s 41(2); Vic s 47(1); WA s 17A(2), (3). 364. Re Kehr [1952] 1 Ch 26 at 29 per Danckwerts J (‘The object … of the [equivalent English provision, s 42 of the Administration of Estates Act 1925 (UK)] was to enable personal representatives to get a good discharge from all further liability in respect of a legacy or share of an estate to which an infant beneficiary was entitled, having regard to the fact that he could not legally give a discharge while he was still under the age of [majority]’). See, for example, Re Wilks [1935] 1 Ch 645 at 650 per Farwell J. 365. Trustee Act 1925 (ACT) s 47 (to the Public Trustee); Trustee Act 1925 (NSW) s 47 (to the Public Trustee or a trustee company); Public Trustee Act 1978 (Qld) s 43 (to the Public Trustee); Trustee Companies Act 1968 (Qld) s 26 (to a trustee company); Public Trustee Act 1930 (Tas) s 16 (to the Public Trustee). 366. SA s 65, discussed at 14.29. 367. ACT s 95; NSW s 95; NT s 44; Qld s 102; SA s 47; Tas s 48; Vic s 69; WA s 99. See Jacobs, p 531. 368. In the Matter of William’s Settlement (1858) 4 K & J 87 at 88; 70 ER 37 at 37 per Page Wood VC (‘payment of a trust fund into Court is a retiring from the trust’). 369. Re Salomons [1920] 1 Ch 290 at 295–7 per Eve J. 370. Barker v Peile (1865) 2 Dr & Sm 340 at 342; 62 ER 650 at 651 per Kindersley VC (‘If he brings the

371. 372. 373. 374. 375. 376. 377. 378. 379. 380. 381. 382.

383. 384. 385. 386.

387.

fund into Court under the Act, he still remains a trustee; and though by reason of the corpus of the fund having never varied, he would be under no liability quoad the fund brought in, he would not be discharged from liability quoad the past income’). See 10.77. Jacobs, p 508, referring to Pagels v MacDonald (1936) 54 CLR 519; BC3600034, discussed at 13.4. Re Estate Wight [2013] NSWSC 1229; BC201312587 at [11]–[14] per Lindsay J. See 11.104–11.107. See 11.94–11.108. Adams v Buckland (1705) 2 Vern 514; 23 ER 929; Hudson v Hudson (1735) Cas t Talbot 127; 25 ER 700; Flanders v Clarke (1747) 3 Atk 509; 26 ER 1093; In the Estate of Dinshaw [1930] P 180. [1973] 2 NSWLR 702 at 703. As to administators de bonis non, see 11.43. 25 Edw III st 5 c 5. The current English provision is found in s 7 of the Administration of Estates Act 1925 (UK), as to which see Williams, Mortimer and Sunnucks, pp 109–12. Bransby v Grantham (1577) 2 Plow 525 at 525; 75 ER 776 at 777. Maddock v Registrar of Titles (Vic) (1915) 19 CLR 681 at 688–9; BC1500047 per Griffith CJ. Drummond v Registrar of Probates (SA) (1918) 25 CLR 318 at 321; BC1800016 per Barton J, with whom Isaacs and Gavan Duffy JJ concurred (citing from Tristram and Coote’s Probate Practice, 15th ed, Butterworth, London, 1915, p 68). In the Will and Codicil of Robert De Little (1883) 9 VLR (IP & M) 32 at 33 per Molesworth J. Ex parte Manning (1905) 22 WN (NSW) 114 at 115 per Owen J, with whom Cohen and Pring JJ concurred. For this reason, the National Committee for Uniform Succession Laws recommended the retention of the rule in model legislation: QLRC, Report 65, Vol 1, p 189. The words ‘an executor’ here have been construed to refer to an executor who has proved the will of the sole or last surviving executor, rather than merely an executor named by the sole or last surviving executor of a testator: Darrington v Caldbeck (1990) 21 NSWLR 212 at 216 per Young J. His Honour considered that s 13(3) of the Imperial Acts Application Act 1969 supported this interpretation, in that, if an executor of an executor took the property that his testator held as from the date of the latter’s death, s 13(3)(c) (‘the failure to obtain probate of a will’) and the proviso to s 13(1) ‘would have no place in the scheme of things’. This point is made explicit in the terms of the Australian Capital Territory probate legislation: ACT s 43A. Young J then added that, as to the property of the head estate pending a grant of the first executor’s estate, it depended on whether or not the head estate was fully administered when the first executor died. If it was fully administered, in effect the first executor had become a trustee (see 10.45, 10.46), upon whose death the office of trustee does not devolve on his or her legal representative. But if a deceased person was the last surviving trustee, the estate passes to his or her legal representative in the same way as the deceased’s beneficial property and he or she is obliged to hold the property until new trustees are appointed. The relevant provision is found in the probate statutes, other than in New South Wales (where it has been recommended that it be relocated to the probate statute: Darrington v Caldbeck (1990) 21 NSWLR 212 at 215 per Young J; Re Kilby [2016] NSWSC 1433; BC201608614 at [24] per Slattery J): ACT ss 43A, 43B (which adopts a different schema to that in the other jurisdictions but one that remains in substance equivalent to its counterparts); Imperial Acts Application Act 1969 (NSW) s 13(1); Qld s 47(1), (1A); Tas s 10(1); Vic s 17(1). See Darrington v Caldbeck at 215–16 per Young J (who noted that the prime purpose of the proviso in the New South Wales subsection ‘is to cover the case where the original testator appoints a number of executors but they do not all prove, power being reserved to those who do not then prove to come in later. In such a case, the office of

388. 389.

390. 391.

392. 393.

394. 395.

396. 397. 398. 399. 400.

executor devolves upon the executor of the proving executor but is divested if and when the nonproving executor later proves the will of the original testator’). Imperial Acts Application Act 1969 (NSW) s 13(2); Qld s 47(2); Tas s 10(2); Vic s 17(2). Imperial Acts Application Act 1969 (NSW) s 13(3); Qld s 47(3); Tas s 10(3); Vic s 17(3). The Tasmanian legislation adds that, where the chain of representation to a testator is broken, any beneficiary (or person claiming through a deceased beneficiary) under the will of the testator may appoint a trust corporation to be executor of the testator, and the acceptance of the appointment constitutes the trust corporation executor of the testator as if the chain of representation had not been broken: Tas s 10(3A). A trust corporation is not obliged to accept such an appointment: Tas s 10(3B). Qld s 47(5). Brooke v Haymes (1868) LR 6 Eq 25 at 30 per Lord Romilly MR. See also In the Will of Pirie (1884) 10 VLR (IP & M) 43; In the Will and Estate of Keys (deceased) [1909] VLR 325 at 326 per Madden CJ; Re Gardner (deceased) [1948] QWN 41. Queensland Law Reform Commission, The Law Relating to Succession, Report No 22, 1978, p 31. See Law Reform Commission of Western Australia, The Administration Act 1903, Project No 88, August 1990, p 32; Ontario Law Reform Commission, Administration of Estates of Deceased Persons, 1991, p 30; QLRC, Report 65, Vol 1, pp 198–9 (although it suggested that the term ‘intermeddling’ be replaced — as it suggests someone who is acting without formal authority — by a threshold phrased in terms of the steps taken to administer the head estate; it recommended, to this end, that the model legislation provide that ‘an executor or administrator by representation may renounce his or her executorship, or administratorship, by representation, provided he or she has not taken an active step in the administration of the head estate’: p 201; the concept of ‘an active step’ is defined in an exclusionary fashion, to exclude: (1) an act of necessity; (2) an act taken to protect or preserve the property of the estate; (3) an act of a minor character that is for the benefit of the estate; and (4) an act taken for the purpose of arranging the disposal of the deceased person’s remains: p 202). Other than in New South Wales, the relevant provision is found in the probate statutes: ACT s 43C; Imperial Acts Application Act 1969 (NSW) s 13(4); Qld s 47(4); Tas s 10(4); Vic s 17(4). NSW s 44(2)(b) (which states that, upon the grant to the Public Trustee or a trustee company of administration of the estate of a person, the Public Trustee or the trustee company ‘shall be … the administrator, by representation, of any estate of which the person had been granted administration’). Re Clover [1919] NZLR 103 at 103 per Hosking J. In the Estate of Heathcote [1913] P 42 at 45 per Bargrave Deane J. Ontario Law Reform Commission, Administration of Estates of Deceased Persons, 1991, pp 33–4. QLRC, Report 65, Vol 1, pp 193–6. See, for example, Re Clover [1919] NZLR 103.

[page 334]

CHAPTER 11

Grants of Representation Jurisdiction to Grant Representation Jurisdiction vested in the court When the registrar may grant representation Court consent to representation required Circumstances where administration can be effected without grant of representation Grant of representation requires proof of death Evidence of death Presumption of death Statutory jurisdiction to grant representation on presumption of death in the territories, New South Wales and Victoria Jurisdiction to grant representation on presumption of death elsewhere New South Wales statutory jurisdiction to make declaration and order when person missing Grant of probate requires proof of testamentary capacity Onus of proving capacity Shifting onus But no shifting onus where ‘suspicious circumstances’ exist Jurisdiction to omit scandalous, offensive or defamatory words from probate copy of will Grant of probate where original will unavailable Presumption of due execution Where only a copy of the will is produced Where no original or copy of the alleged will produced Lodgement of caveat by person who proposes to challenge grant Forms of Grant

11.1 11.1 11.2 11.4 11.5 11.6 11.6 11.7 11.10 11.11 11.12 11.14 11.14 11.15 11.16 11.17 11.19 11.19 11.20 11.23 11.24 11.28

Probate Proof in ‘common form’ Proof in ‘solemn form’ Application(s) for proof in solemn form Probate largely distinct from construction Grant of ‘double probate’ Administration Administration in the event of intestacy Administration outside of intestacy — administration cum testamento annexo Limited grants of administration Administration de bonis non

11.29 11.30 11.31 11.33 11.35 11.36 11.37 11.37 11.38 11.42 11.43 [page 335]

Administration durante minore aetate Administration durante dementia Administration in absentia (or ‘durante absentia’) Administration pendente lite Administration ad litem Administration ad colligenda bona Administration bonds and guarantees Nature and rationale Australian Capital Territory New South Wales Northern Territory South Australia (formerly) Tasmania (formerly) Victoria Western Australia Devolution of Estate Historical backdrop — distinction between real and personal estate Vesting of estate prior to grant of representation Role for Public Trustee (or equivalent)

11.44 11.46 11.48 11.49 11.53 11.56 11.60 11.60 11.61 11.62 11.63 11.64 11.65 11.66 11.67 11.68 11.68 11.71 11.71

Scope of Public Trustee’s role Statutory expansion of Public Trustee’s role in the Northern Territory, Queensland and Tasmania Standing of personal representative preceding grant Impact of grant of representation Vesting of property ‘relates back’ to death How title is taken Devolution in the event of simultaneous deaths Presumption of survivorship Position in New South Wales, Queensland, Tasmania and Victoria Position in the Territories and Western Australia

11.73 11.77 11.78 11.81 11.81 11.83 11.84 11.84 11.85 11.88

Grant to Multiple Persons Taking of title where multiple personal representatives Decision-making by multiple personal representatives — acting severally Common law position — personal representative can act severally Qualification to common law by equity Ouster or qualification of common law by statute Ouster of general law for retainer of solicitor

11.89 11.89

Revocation of Grant Jurisdiction to revoke grant Weight accorded to executor chosen by testator in application to revoke probate Court reticent to interfere without good reason Where potential for conflict between interest and duty Presence of friction between executor and other interested persons Standing to apply for revocation of grant

11.94 11.94

11.90 11.90 11.91 11.92 11.93

11.98 11.98 11.99 11.101 11.102 [page 336]

Revocation of grant if person living at date of grant Revocation of grant as a vehicle for removing personal representative No inherent power to order removal (?) Distinction between revocation and removal ultimately procedural

11.103 11.104 11.104 11.106

Removal once personal representative becomes trustee Effect of revocation of grant Protections for personal representative(s) and third parties Revocation not to prejudice actions or suits Administration Without Grant of Representation Small estates administered by Public Trustee without grant Australian Capital Territory and Tasmania New South Wales, Northern Territory and Queensland Election by Public Trustee or trustee company to administer small estates without grant Payment of certain money in deceased estates without grant Administration of real property without a grant — Queensland

11.107 11.108 11.108 11.112 11.113 11.113 11.113 11.114 11.115 11.119 11.122

Jurisdiction to Grant Representation Jurisdiction vested in the court 11.1 Statute in each state and territory vests in the Supreme Court the jurisdiction to grant probate1 of a deceased person’s will or administration2 of his or her estate.3 This is generally tied to the deceased leaving property, real or personal, within the said state or territory, although in the territories and Queensland the legislation explicitly empowers the court to grant probate or administration (collectively often termed ‘representation’, reflecting the representative capacity in which an executor or administrator acts) even if he or she leaves no property within the territory if the court is satisfied that the grant of representation is necessary.4 The latter is likewise the case elsewhere to the extent that statute preserves the court’s historical inherent jurisdiction to grant representation whenever it considers it appropriate to do so.5 [page 337]

When the registrar may grant representation

11.2 Generally speaking, the registrar of the relevant court may exercise of the powers of the court when it comes to the grant (or revocation) of representation in non-contentious proceedings6 (typically where the grant is in ‘common form’).7 This power is, again generally speaking, restricted to where no caveat is lodged against the estate8 or there is otherwise no doubt as to whether or not the grant ought to be made.9 It is open to the registrar to refer any question arising in a grant or the application itself to the court.10 11.3 The probate legislation in New South Wales, the Northern Territory and Western Australia envisages that, if a person dies leaving property of a value not exceeding a set amount,11 an application for representation may be made directly to the registrar (or, in New South Wales and Western Australia, to a district agent12 for the registrar).13 The registrar must issue representation, in the name of the court, to the applicant on demand if satisfied that: there is sufficient evidence to support the application; the value of the estate does not exceed the set amount; no caveat has been entered against the application; and no will has been deposited with the Public Trustee or registrar.14 In no case is the registrar obliged to deal with an application that he or she may think proper to be dealt with by the court, or to be placed in the hands of a lawyer.15

Court consent to representation required 11.4 Because the grant of representation is a public judicial act, and it is therefore conclusive until revoked,16 the court will not make orders for the grant merely because the parties have agreed to them.17 The court’s role is not as a mere ‘rubber stamp’; ‘[t]he consent of parties interested proves nothing’, it has been said.18 Building on this, observations relating to the inquisitorial nature of probate jurisdiction can be found in the case law, to the effect that the court is under a duty, or at least at liberty, to investigate the circumstances that trigger [page 338] a well-founded suspicion that the document is not valid.19 At the same time, the parties’ agreement on orders for resolution of the issues remains a relevant

factor, particularly where each party is represented by lawyers experienced in the probate field.20

Circumstances where administration can be effected without grant of representation 11.5 Statute prescribes several instances where administration of an estate, or part thereof, can be effected without the need for a grant of representation by the court. These instances target chiefly small estates administered by the Public Trustee or a trustee company,21 and payments of (usually small) amounts to beneficiaries of the estate directly from the deceased’s employer(s) or financial institution(s).22 Each is addressed at the conclusion of this chapter, as are the limited circumstances in Queensland where real property can be administered with no requirement for a grant of representation.23

Grant of representation requires proof of death Evidence of death 11.6 As the grant of representation legitimises the disposition of a person’s estate on his or her death, no court can issue a grant without being satisfied that the person in question is in fact deceased. A court must be presented with the appropriate evidence of death, generally a death certificate.24

Presumption of death 11.7 In some circumstances, it may be difficult to conclusively determine whether or not the person has in fact died. For this reason, the common law recognised what is sometimes termed a ‘presumption of death’ — as opposed to a presumption as to the date of death25 — following a person’s disappearance for at least 7 years. It operates to qualify the basic notion that whether or not a person is deceased is a question of fact rather than presumed as a matter of law. In the context of administration of deceased estates, it is usually argued with the object of protecting [page 339]

the personal representative in relation to the distribution of the estate.26 Dixon J in Axon v Axon explained this ‘presumption’ as follows:27 The presumption of life is but a deduction from probabilities and must always depend on the accompanying facts … As time increases, the inference of survivorship may become inadmissible, and after a period arbitrarily fixed at seven years, if certain conditions are fulfilled, a presumption of law arises under which a court must treat the life as having ended before the proceedings in which the question arises. If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communications from him or to have learned of his whereabouts, were he living, then, in the absence of evidence to the contrary, it should be found that he is dead.

11.8 Importantly, though phrased as a presumption, it does not arise, whether as a matter of law or of fact, in the way legal presumptions are ordinarily conceived. An applicant must adduce evidence to oust the prevailing counter-assumption that, lacking a body and a death certificate, there has been a continuation of life.28 This explains why, within the said time frame, the law requires evidence of absence of any contact or sign of life, according to the ordinary course of human experience. As explained by Gray J in Re Estate of Hills:29 [An] applicant wishing to displace the presumption of continuance of life and seeking a finding that the presumed deceased is dead, should provide evidence including the description, age and circumstances of the presumed deceased and the circumstances of disappearance or departure. The evidence should depose to the applicant’s belief in the death of the presumed deceased, and the basis of that belief, including any evidence of persons relevant to a finding of death. The applicant should demonstrate that advertisements seeking information concerning the presumed deceased have been inserted in newspapers, identifying the newspapers utilised, and the result of those advertisements. The evidence should include whether any letters have been received from the presumed deceased since their disappearance or departure and, if not, the last date of communication. It should further be established what other enquiries have been made,

[page 340] and any other facts that render the presumed deceased’s death probable, such as an awareness of an entitlement to a fund without any claim being made. Whether the presumed deceased was insured should be established. Further matters to be established include whether the presumed deceased died intestate or testate. If intestate, the application should state the names of the next of kin and of the potential heir at law, and if testate, the will should be filed. Particulars of the value and nature of the estate of the presumed deceased should be ascertained. The requirement to establish these matters is not definitive. Other matters of relevance may also be deposed, and a failure to establish any of these matters will not necessarily defeat the application.

The modern advancement of communications technology, moreover, is likely to provide a further means by which a person’s continued existence or otherwise is determined,30 in turn prompting a suggestion that 7 years is now too long a period for this purpose.31 11.9 Although 7 years is the time frame most commonly cited, as this is arbitrary (as Dixon J noted in the earlier extract) and is in any case not a true legal presumption, it is unsurprising to find in the cases occasions where a court has been satisfied of a person’s death without awaiting the expiry of 7 years. Examples have arisen out of shipwrecks32 and other accidents,33 but are not so confined.34 A presumption of death has, in other instances, stemmed from the expiry of well over 7 years,35 whereas in others again it has not.36 This recognises that ‘any inference about the continuance of life for an individual person will inevitably be a matter of fact according to the particular features of the case and normal reasonable expectations’.37 [page 341]

Statutory jurisdiction to grant representation on presumption of death in the territories, New South Wales and Victoria 11.10 The probate legislation in the territories, New South Wales and Victoria contains explicit provision to the effect representation may be granted if the court is satisfied, whether by direct evidence or by evidence supporting the said presumption of death, that the person is, or may be presumed to be, dead.38 It adds that the grant remains valid notwithstanding that it may subsequently appear that the person was living at the date of the grant.39 However, if the grant is made on a presumption of death, it must be expressed in these terms and the estate of the person must not be distributed without leave of the court. The court may, to this end, direct the personal representative to give, before the estate is distributed, the notices that the court considers appropriate.40 The notices are designed to give the person presumed to be deceased, or if he or she has died since the date of the grant, any person interested in his or her estate, the opportunity to lodge a caveat against the distribution.41 If a caveat is duly lodged, the personal representative must not

distribute the estate except under a court order (in the territories)42 or once the caveat is withdrawn or removed (in New South Wales and Victoria).43 The legislation adds that the court may, in granting leave to distribute the estate, direct that the distribution must not be made unless each person who is to take thereunder gives an undertaking or security that he or she will, if the representation is revoked, restore the property received under the distribution to the person entitled to it, or pay to that person an amount equal to the value of that property.44

Jurisdiction to grant representation on presumption of death elsewhere 11.11 In the remaining jurisdictions statute makes no specific provision vesting in the court jurisdiction to grant representation where the common law presumption of death applies. As the jurisdiction to make a grant is phrased by reference to the estate of a ‘deceased person’,45 the court must be convinced that the person in question has in fact died. Without a death certificate, this may prove problematic, and a grant that proves to have been wrongfully issued will be a nullity.46 To address this issue, the practice developed for the personal representative to apply for an order for leave to swear death47 and, once this leave is granted, to apply for a grant of representation in the usual way. The practice evolved to assist and protect personal representatives who could otherwise not truthfully swear to the death and who, if they swore without leave, might commit perjury.48 Barnes J in In the Goods of Jackson explained the backdrop to the practice as follows:49 [T]he court never presumed death, but gave the applicant for a grant leave to swear the death, and the applicant then had to swear to the fact. Parties had to prove their right to a grant, and they did not establish their right unless they made the necessary oath. The true principle in such cases was for the applicant to obtain the leave of the court to swear in his or her belief that a person is dead.

[page 342] It follows that an application for the court’s leave must coincide with an application for representation.50 In Re White,51 for example, Holt M in 2001

granted the applicant leave to swear the death of her husband so as to enable her to obtain probate of his will where the husband disappeared in 1992 having left a suicide note, no trace of him had been found notwithstanding extensive police searches and no one had heard from him in the intervening period. These facts, according to the Master, supported a presumption of death.

New South Wales statutory jurisdiction to make declaration and order when person missing 11.12 For completeness in this regard, it is noteworthy that in New South Wales there exists a statutory procedure whereby the court may declare that a person is a missing person and order that the person’s estate (or any part of it) be subject to management under the NSW Trustee and Guardian Act 2009 (NSW).52 It may, for this purpose, by order appoint a suitable person as manager of the person’s estate or commit its management to the NSW Trustee. The relevant section lists the persons who have standing to make the application, which culminates in ‘any other person who has an interest in the estate of the person’.53 The court may make the said declaration and order only if it is satisfied of the following six matters:54 • • • • •

the person is a missing person; it is not known whether the person is alive; all reasonable efforts have been made to locate the person;55 the person’s usual place of residence is in New South Wales; persons residing at the place where the person was last known to reside, or relatives or friends, with whom the person would be likely to communicate, have not heard from, or of, the person for at least 90 days;56 and • it is in the best interests of the person to do so. That the legislation envisages the appointment of a manager of a missing person’s affairs after he or she has been missing for more than 90 days may obviate the need to prove the common law disappearance of more than 7 years under the presumption of death. The object of the relevant provision, to this end, appears in the following remarks found in the second reading speech:57 Presently, family or friends can only manage the affairs and estates of missing people after

obtaining a grant of probate from the Supreme Court. This means the missing person is presumed to be dead. Unless there is strong evidence that the person had died, probate may not be granted until they have been missing for seven years. The presumption of death is particularly distressing

[page 343] for families and friends of missing people because they usually do not want to accept, let alone prove, that the person is dead. It is also unsuitable for the majority of missing people, who are subsequently found alive. The process takes too long to provide any practical, timely assistance to people wishing to look after an estate in the short or medium term. More than 8,000 people go missing in New South Wales each year: 70 per cent are found within three days, 86 per cent are found within two weeks and 99.7 per cent are located overall. Long-term missing people are those who have been missing for more than a year. In New South Wales there are more than 500 longterm missing people. The Government, in consultation with families and friends of missing people, has developed a clear and simple legal procedure for applications to be made to allow others to manage property belonging to missing people.

The section does not permit distribution of a missing person’s estate in the way that is possible after a grant of probate or letters of administration is made on presumption of death. Instead, it permits a limited kind of use of the property of the missing person, of the kind the missing person would be likely to approve if he or she could be consulted, to protect, preserve and advantageously deal with that property, and to support his or her family.58 The making of the declaration and order has been judicially described as ‘a serious matter’.59 Because it is made in the absence of the missing person, and it can irretrievably affect his or her property, the court is unlikely to be satisfied by ‘slight proofs’.60 11.13 Although triggered by proof of a ‘missing person’, the legislation does not define that concept. It therefore takes its ordinary meaning, albeit in the context of the provision. That the legislation prohibits the court from finding that a person is a missing person unless it is satisfied of the six matters noted above does not mean that proof of these matters suffices to establish that the person is a ‘missing person’. As well, evidence would ordinarily be needed of the circumstances in which the person disappeared, including his or her condition during the period immediately preceding the disappearance, and material that casts light on any motive he or she may have had to disappear, or on any other possible cause for the disappearance. Merely because he or she is

not seen by family or friends is not enough for this purpose, as it is consistent with the person being, say, on a holiday. Greater context is needed to conclude that he or she is indeed a ‘missing person’.61 As to the requirement in the second dot point above, that ‘it is not known whether the person is alive’, there is no specification as to whose perspective is required. It can be inferred, though, that the people whose lack of knowledge is targeted for this purpose are those who ordinarily would be expected to have seen, or heard from, or of, the person. Given that missing people are ordinarily reported to the police, who are then obliged to investigate their whereabouts, it will also usually include that part of the police force whose task it is to investigate the whereabouts of missing people.62

Grant of probate requires proof of testamentary capacity Onus of proving capacity 11.14 In addition to proffering a will that meets the requisite formalities,63 the person who seeks probate of a will — usually the appointed executor — bears the onus of establishing that the deceased possessed testamentary capacity.64 The classic test of testamentary capacity [page 344] requires that a testator ‘understand the nature of the act and its effects’, ‘understand the extent of the property of which he is disposing’, and ‘be able to comprehend and appreciate the claims to which he ought to give effect’.65 Yet if no suspicious circumstances66 surround the execution of the will and/or there is no person seeking to impeach it, this onus is in practice not difficult to discharge. In this event, ‘mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents’.67 At the same time, there is no compulsion on an executor — the contrary, rather — to propound a will that is evidently the result of the testator’s incapacity or redolent of suspicious circumstances.68

Shifting onus 11.15 Assuming that the proponent establishes a prima facie case of testamentary capacity, the onus shifts to any party seeking to impeach the will to show that it ought not be admitted to proof. It has been observed, in this context, that as the power to dispose of one’s assets by will ‘is an important right’, the court must be ‘cautious’ in that ‘a finding that a testator lacked capacity is a grave matter’.69 Accordingly, once the court has examined the relevant evidence, a ‘residual doubt’ as to the testator’s capacity is not enough to defeat the claim for probate unless, in the words of the High Court, it considers the doubt ‘to be substantial enough to preclude a belief that the document propounded is the will of a [testator] who possessed sound mind, memory and understanding at the time of its execution’.70

But no shifting onus where ‘suspicious circumstances’ exist 11.16 Where ‘suspicious circumstances’ exist, the assumption that the testator knew of and assented to the contents of the will does not arise. Here the proponent(s) carry the burden of dispelling the suspicion ‘by clear and satisfactory proof’ that the testator knew and approved of the contents of the document71 — what some courts have referred to as discharging the onus of showing the ‘righteousness of the transaction’.72 Where a proponent of the will drafted or arranged it and takes a benefit thereunder is a frequently cited suspicious circumstance,73 but it is not the only one.74 Ultimately, the weight to be accorded to ‘suspicious circumstances’ varies according to each particular case. A benefit that is small relative to the assets of the estate, and one explicable by the fondness inherent in the relationship between the deceased and the proponent, may oust the burden of any suspicious circumstances. Yet in other instances it may prove more difficult to remove the relevant suspicion. So where, in Fulton v Andrew,75 the facts revealed that ‘the will had … been framed through the agency of those who took [the] benefit in the residue’, that the same persons ‘alone supported the case of the will having been read to the testator’, and that the ‘instructions [were not sent] to the testator’s ordinary solicitor’, Lord Hatherley saw these as ‘grave circumstances attending the transaction’.

[page 345]

Jurisdiction to omit scandalous, offensive or defamatory words from probate copy of will 11.17 Courts have an inherent jurisdiction,76 as part of the power to prevent abuses of process, to omit from the probate copy of a will77 words that, lacking dispositive effect, are scandalous, offensive, defamatory or blasphemous.78 This jurisdiction is to be exercised cautiously,79 so as to interfere only to the extent necessary to address the abuse, and not otherwise to interfere with the testator’s entitlement to state reasons, in his or her will, for (usually not) making a disposition to one or more persons.80 The attitude, including the consent or otherwise, of the beneficiaries and executors to the application is a material consideration to this end.81 The law distinguishes words that have a dispositive or explanatory effect from those used gratuitously, and otherwise not germane to the dispositions of the will. The cases reveal, generally speaking, that, insofar as the words in issue have a dispositive effect or give or support a cause or reason for testamentary dispositions, the court refrains from acceding to an application for their omission. This is so even if some find the allegations or beliefs underscoring the words unpleasant or unjustified.82 It is, in any case, no part of the court’s task to assess the verity of the impugned words in making its assessment,83 but only their likely impact or perception. 11.18 The curial approach is illustrated in Re Estate of Enjakovic (deceased),84 where Gray J refused to omit from the will words inferring inappropriate and possibly dishonest conduct by M vis-à-vis money belonging to the testator as the reason for not making a disposition to M. In so ruling, his Honour reasoned as follows:85 [page 346] The impugned words infer inappropriate and possibly dishonest conduct on the part of [M]. Prima facie, any accusation of dishonesty is a defamatory attack upon the reputation and moral

character of an individual. Furthermore, an allegation of theft, which imports a notion of criminality, bears a more serious adverse connotation. However, the impugned words stop short of directly asserting that [M] had engaged in dishonesty. When the deceased recounted her discussion with [M], she did not suggest that he had obtained her money dishonestly. Her concern appeared to be that no explanation was provided for why he had taken the money. The impugned words follow, and appear to add, to the deceased’s statement about [M’s] having failed to repay monies borrowed in the past from the deceased and her late husband. One can understand how the impugned words could be viewed as being ‘hurtful’, ‘painful’ or ‘unkind’. However I have concluded that a reasonable person would not be so offended by the words as to require their omission.

The decision reveals, as do others,86 that courts are disinclined in this context to make expansive inferences from the words used. His Honour also refused to omit words in Re Estate of Brummitt (deceased),87 where the deceased justified excluding his former wife from testamentary benefit due to her ‘extra marital affairs’ and his son (D) due to the deceased’s belief that D was not his biological son. The words in question were not, according to Gray J, used gratuitously or placed in the will for the purposes of injuring the reputation of his former wife or D,88 even though he conceded that the words ‘may be of an offensive character’.89 As to what is ‘offensive’, his Honour emphasised the need to construe the words ‘in their contemporary context’, wherein he considered ‘a reasonable person would not be so offended by the words or find them to be so scandalous as to require their omission’.90 An instance that activated the jurisdiction was found in Re N,91 where the testator’s will contained the following statement: I do not desire the presence of my wife at my funeral or near me when I am dead as she has been unfaithful to me and has borne a child to another man during our married life and through her lies, deceit and false promises got me to make my military allotment to her which she did not deserve due to her immorality.

That these words did not explicitly provide a reason for a failure to dispose of property to a person, or form part of a testamentary declaration, is what led Re N being distinguished by Gray J in Brunnitt.92 [page 347]

Grant of probate where original will unavailable Presumption of due execution

11.19 The best evidence of a testator’s wishes regarding what is to occur visà-vis his or her estate following death is the original of the testator’s last will and testament, duly executed and witnessed.93 The propounder(s) of the will — ordinarily the executor(s) nominated therein — bear the onus of establishing that the document in question fulfils these characteristics. Where the document is regular on its face, and there are otherwise no grounds to question its authenticity or the testator’s capacity94 or freedom in making it, the court (or the registrar) will grant probate. Effect is thereby given to what is termed the ‘presumption of due execution’,95 encapsulated in the maxim omnia praesumuntur,96 designed to reflect, it is said, the courts’ ‘strong desire to uphold honest wills’.97 That the presumption is ‘based on inference from probabilities’ and ‘on policy considerations of public and commercial convenience for the smooth operation of business’98 does not prevent it from yielding to evidence of irregularity.99

Where only a copy of the will is produced 11.20 If only a copy of the will is available, the court must be satisfied that the copy accurately represents the testator’s testamentary wishes and that the original had been duly executed. Evidence from one or more of the attesting witnesses may be probative in this context.100 If the evidence reveals that the original was last known to be in the testator’s custody, and despite diligent search cannot be found in his or her usual repositories, the law presumes that the testator destroyed the will animo revocandi (‘with the intention to revoke’). The presumption, historically one of law, has now for nearly two centuries been treated as one of fact, and thus rebuttable by evidence to the contrary.101 Without evidence of that kind, and if no other valid [page 348] will can be located, the testator is treated as having died intestate. Parke B explained the logic underscoring this presumption as follows:102 It is a presumption founded on good sense; for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker,

it is not found in his usual repositories, or else where he resides, it is in a high degree probable that the deceased himself has purposely destroyed it.

The inference of destruction underscoring the presumption does not stand if the propounder can adduce evidence sufficient, on the balance of probabilities, to satisfy the court that the facts support the inference that the deceased did not destroy the will or, if he or she did, it was not animo revocandi. This may be via evidence that, inter alia, the will had been lost or misplaced,103 been destroyed by a third party,104 or that the deceased was insane for some part of the period to which the presumed destruction must be assigned.105 11.21 The strength of the presumption may be influenced by the terms of the will. If these make a careful and complete disposition of the estate, and no other circumstances point to probable destruction, the presumption that the deceased destroyed it animo revocandi becomes, it is said, ‘so slight as not to exist’.106 A leading judicial observation to this end is that of Sir James Hannen in Sugden v Lord St Leonards:107 It is obvious that where a will, shewn to have been in the custody of a testator, is missing at the time of his death, the question whether it is probable that he destroyed it must depend largely upon what was contained in the instrument. Was it one arrived at after mature deliberation; did it deal with the interests of the whole of his family, carefully arranging the dispositions which he would make in favour of the several members of it, or was it the hasty expression of a passing dissatisfaction with some one or more of them? These are questions naturally having the strongest possible bearing upon the ultimate question which I may have to determine, namely, whether or not the testator himself destroyed this instrument.

The ‘character of the custody which the testator had over the will’,108 remarked Cockburn CJ when the same case came before the English Court of Appeal, may also impact on the strength [page 349] of the presumption. There the custody of the alleged will of the deceased, a well-known judge, ‘was anything but a close custody’, said his Lordship, it having been kept in a common room and common box not always under lock and key. Together with a finding that it was ‘utterly impossible’ that ‘such a man as Lord St Leonards would have voluntarily destroyed this will’,109 this led Cockburn CJ to find that the presumption of revocation had been rebutted.

The same outcome ensued in the much more recent Tasmanian case of Garland v Dillon,110 where the evidence revealed that the deceased’s room ‘was a mess and consistently untidy’, and that her behaviour was known to be erratic and she drank to excess, Tennent J branding ‘[t]he likelihood of any document put on any surface in that room simply getting lost or being thrown out by mistake [a]s high’. But if the evidence reveals that the deceased was likely, in view of his or her experience and/or character, to take proper care of an important document such as a will, and it transpires that the will once in his or her guarded possession cannot be found, the presumption may apply with greater force.111 An Australian judge has, to this end, construed the phrase ‘character of the custody which the testator had over the will’ as referring to:112 … facts concerning the physical arrangements the testator has for security of the Will — for instance, whether it is kept in a place which is locked or unlocked, if kept in a locked place, how many keys there are and who has them or has access to them, or whether the testator keeps his will in his coat pocket — who knows of the location of the Will, whether anyone besides the testator has access to the Will, and the extent to which the testator has been careful in looking after his Will.

11.22 Yet to the extent that reference to rebuttal of the presumption suggests that the additional facts and the facts raising the presumption should be separated and weighed one against the other, it is misleading. Instead, the ‘true method of approach’, it is said, is to have regard to the entire relevant circumstances and then seek to determine what are the proper inferences of fact to draw from them.113

Where no original or copy of the alleged will produced 11.23 The challenge to support the existence of a valid will is magnified where neither the original nor a copy is available. In this event, the proponent must establish, again on the balance of probabilities — bearing in mind, though, the need for the court to be vigilant, being fully cognisant of the dangers of error and fraud, and the gravity of the consequences flowing from any finding114 — not only that a will existed, was duly executed and remained unrevoked, [page 350]

but also its terms.115 In cases of this kind, the task of satisfying the court as to the will’s terms, usually by parol evidence, has been branded ‘a heavy one indeed’.116 If the existence, terms or execution of an alleged will cannot be proven, the court cannot grant probate. The usual form of grant, where the original will is lost but its existence, terms or execution can be proven, is limited until the original or a more authentic copy is proved.117 If the original has been destroyed, the grant is ordinarily limited until a more authentic copy is proved, unless its destruction is animo revocandi, in which case no grant of probate can issue.118

Lodgement of caveat by person who proposes to challenge grant 11.24 The probate legislation and/or relevant rules in each jurisdiction make provision for a person who proposes to challenge a grant of representation to lodge a caveat against the grant at any time preceding the grant.119 The role of the caveat process has been judicially described as follows:120 Caveats act as a mechanism for notice from the Court to a party interested in an estate that an application for a grant of probate or letters of administration has been made in respect of a deceased estate. The caveat procedure exists to ensure that estates are administered in an orderly manner and that any issues arising before a grant of probate or letters of administration is made can be investigated and dealt with by the Court. This ensures that any grant gives effect to the final valid testamentary wishes of the deceased or the intestacy provisions and title to any real or personal property owned by the deceased at the date of their death passes in accordance with these wishes or provisions.

A grant of representation may be challenged, to this end, on grounds including the alleged invalidity of the will or the unsuitability of a personal representative. The Australian Capital Territory and Queensland rules limit those with standing to lodge a caveat to persons ‘claiming to have an interest in an estate’. Excepting South Australia,121 statute or rules elsewhere entitle ‘any person’ to lodge a caveat. 11.25 However, ‘any person’ in this context does not mean what it says. A literal interpretation would not only be inconsistent with the law underscoring the lodgement of caveats — which

[page 351] requires an interest in property122 — but would ignore what is well established in succession law, namely that probate litigation is ‘interest litigation’.123 (It also explains the parallel standing threshold applicable vis-à-vis proceedings for revocation of representation124 and for actions against personal representatives for breach of duty).125 Probate litigation is not, to this end, to be ‘undertaken or interfered in by outside busybodies’126 or ‘officious intermeddler[s]’.127 The most obvious candidates for standing are persons who take as beneficiaries, or are otherwise charged in a representative capacity vis-à-vis the will. A mere familial relationship with the deceased will not suffice, at least without evidence of some potential entitlement to take under a testamentary disposition or the intestacy rules. In Re Estate of Ward,128 for example, Owen J remarked that the mere fact that the defendant (W) was a son of the deceased did not give him standing to lodge a caveat, as he was neither an executor or beneficiary under the will, nor did he claim to be so under any other will that might have been propounded. That W was concerned for the welfare of another son of the deceased (P), who was disabled, did not serve to vest in W an ‘interest’ for this purpose. Any apprehension that P’s interests required the protection afforded by a caveat was, according to his Honour, aptly to be pursued by those having authority over P’s affairs (his guardian or the Public Trustee). Owen J acknowledged that the result would have been otherwise had the deceased died intestate, in which case W’s interest would have stemmed from his entitlement under the intestacy rules.129 11.26 That the standing threshold is not high — some older cases suggest that any interest or reasonable possibility of an interest, however remote, suffices,130 although today’s judges may not be quite so lenient131 — has not precluded courts from denying standing to lodge a caveat to some applicants with alleged claims against the estate. Where, as in Garwoli v Garwoli,132 [page 352] the claimant is a beneficiary under an earlier revoked will, and alleges that the

current will is the product of undue influence, there is no existing caveatable ‘interest’, as the claimant has no more than a mere equity as opposed to an (equitable) interest. Most of the case authority, in similar vein, decrees against a possible family provision claim as a sufficient interest for this purpose, as any such ‘interest’ likewise rests upon a court order.133 Yet the legal position may be quite so unyielding, at least vis-à-vis family provision claims. It may be that standing rests upon the strength of the applicant’s claim; a claimant who is able to substantiate a reasonable prospect of success in the claim may, it has been held, have an ‘interest’ in the administration of the estate sufficient to lodge a caveat.134 If indeed governed by inquiry into the strength of the claim, there is no reason in principle why it should be confined to family provision claims. A creditor may lack a sufficient interest to challenge a will because its claim is against the estate, whether any particular will is admitted to probate or in the event of an intestacy.135 But the position may well differ in the case of an applicant who is a creditor of a beneficiary under the will,136 or a former will,137 and certainly differs for a creditor who has obtained administration.138 11.27 The probate statutes or relevant rules in most jurisdictions make general provision for the form of the caveat,139 and generally limit its duration to 6 months unless set aside or withdrawn beforehand,140 although provision exists for renewing the caveat or extending its duration.141

Forms of Grant 11.28 The two main forms of ‘representation’ relating to the property of a deceased estate — that is, when a living person is appointed to ‘represent’ the estate of a deceased person for the purposes of its winding up — are termed ‘probate’ and ‘administration’. What these terms mean, and the circumstances in which they apply, are discussed below. [page 353]

Probate 11.29 In circumstances where the deceased has left a will appointing an executor, the latter is charged with the task of applying for probate. ‘Probate’ represents the official proving of the will142 — whether in what is known as ‘common form’ or ‘solemn form’143 — and is a prerequisite to the executor taking title to property forming the testator’s estate,144 which lies at the core of the subsequent executorial function. Probate, to this end, is ‘proof of the validity of the will that an applicant seeks to propound’.145 It is open to the court, in an appropriate case, to grant probate (or, for that matter, administration cum testamento annexo)146 in respect of only a portion of a document that has been executed as a will, omitting other portions as having formed no part of that to which the execution of the document really applied.147 In the event of a partial intestacy, namely where the deceased left a will appointing an executor but failed to effectively dispose his or her entire estate, it remains for the executor to apply for probate. Once probate is granted, those parts of the testator’s estate affected by intestacy are to be distributed in accordance with the intestacy rules.148 Those that are not are to be distributed according to the will.149

Proof in ‘common form’ 11.30 Where there is no dispute as to the validity of the will — a noncontentious application150 — the grant can be made on the basis of affidavits without the need for formal proof in court. What results is a grant of probate in ‘common form’.151 Generally speaking, a grant in common form is issued by the registrar of the relevant court pursuant to a delegated power,152 which explains in part why it is sometimes said that such a grant is founded upon a [page 354] ‘quasi administrative process’.153 It is no final judgment, but by nature a default or interlocutory order;154 the grant is, accordingly, revocable upon

application by a person whose interests are adversely affected by the grant.155 As a grant in common form is not the subject of formal proof, application for its revocation is not ordinarily precluded by mere delay156 or estoppel,157 but where coupled with evidence of acquiescence and associated prejudice,158 or where the application is otherwise an abuse of process,159 it may be struck out.

Proof in ‘solemn form’ 11.31 Wills are proved in solemn form (or per testes)160 where the main, and usually the sole, question for the court is whether or not a will is valid as a testamentary instrument. The will is propounded in the action to which persons, interested under another will (or intestacy) are made parties (or otherwise cited to see the proceedings)161 and for the validity of which the [page 355] court pronounces after hearing the evidence. So if there is uncertainty as to the validity of the will, or the executor believes that the grant may be opposed by a person with an interest162 — which may include a beneficiary of the will or a former will, an executor of a former will or a person entitled on intestacy — application by the executor for a grant in solemn form is ordinarily the appropriate course.163 11.32 That a grant in solemn form is ordinarily consequent upon contentious proceedings as to the validity of the will — thus following a curial evaluation of competing matters of fact and/or law — explains why the court’s determination has the status of a judgment and, with limited exceptions, is irrevocable. It has been observed, to this end, that the object of an action for probate in solemn form is to ‘secure a judgment of the Court which is binding on all persons who might be entitled to challenge the validity of [the] will’.164 This explains why, as explained by an Australian judge, no grant in solemn form should ‘be made too lightly or without due regard to the interests of persons not then present before the Court’.165

The four main exceptions are where a later will is discovered,166 the judgment has been obtained by fraud,167 it transpires that the testator is still alive,168 and a person opposing the grant was prevented, for reasons beyond his or her control, from taking part in the proceedings.169 Otherwise, parties to the action and those privy thereto are bound by the result, reflecting the established principle of probate practice that any person with an interest may become a party by intervening,170 but that if he or she, knowing what was passing, is ‘content to stand by and [page 356] let his battle be fought by somebody else in the same interest’, he or she is bound by the result, and is not to be allowed to re-open the case.171

Application(s) for proof in solemn form 11.33 An executor has an absolute right to seek proof in solemn form.172 Nothing prevents next of kin applying for proof in solemn form, but the court retains discretion to refuse the application.173 An executor may even obtain a grant in solemn form subsequent to an existing grant in common form.174 As explained by Sholl J in Re Levy (deceased):175 [T]he executor, provided he genuinely propounds the will with a view to establishing it by proof in solemn form, is entitled to proceed to such proof, notwithstanding the previous grant to him of probate in common … form … He is surely not to be denied the protection which such a proceeding will give him, by way of binding persons interested under an intestacy or an earlier will, merely because his realisation of the danger of some attack on the will follows, and does not precede, the less formal grant.

Clearly, whether before or after a grant of probate in common form, by seeking probate in solemn form the executor is seeking to uphold the will. The proceeding is not intended as a vehicle for the executor to seek to undermine the will, as this would be inconsistent with his or her obligations as executor.176 But this does not prevent the court, in such a proceeding, from revoking an existing grant made to the executor in common form if it finds that, on the evidence presented contrary to the executor’s case, the will cannot stand.177

11.34 The executorial practice to seek proof in solemn form probably arose, it has been suggested, in cases where the executor was also a beneficiary, and desired protection against possible proceedings by the next of kin to later upset the will,178 although it is not limited to this scenario. For instance, it may be appropriate where the deceased has named the same executor in two or more wills and, on the testator’s death, the executor decides to propound the penultimate, or an earlier, will by reason of knowledge or investigations lead him or her to conclude that the last will is invalid, whether for want of capacity or some other reason. Or it may be where an executor decides to propound the last will of a deceased notwithstanding knowledge that some other person is contending for the invalidity of that will and is propounding an earlier testament.179 The proper role of the executor and the court in this context has been explained as follows:180 [page 357] [T]he common case in which the executor was wont to make an application for proof in solemn form, after he had obtained a grant in common form, was the case in which he had reason to anticipate some question being raised as to the validity of the will and desired to have the protection which a grant in solemn form would give him. In such cases it was nevertheless the practice to grant probate in solemn form on proof of the due execution only, at all events if there was no opposition. That seems clearly enough to indicate that the executor was not … bound to call before the Court of his own motion all available evidence, both favourable to and adverse to the will of which he obtained a grant in common form. The duty of such a person, after all, must be a duty to propound the instrument which the testator has appointed him to propound, if he puts it forward at all. He cannot owe any duty to take legal proceedings to destroy the instrument from which alone he takes his title … Such an executor has, of course, no duty to put forward an instrument if he is satisfied that it ought not to be put forward. But once he does put it forward, he is entitled … to put it forward with only such evidence, available to him, as is in its favour.

An executor, as the propounder of the will, may therefore take the benefit of the rule that a properly executed will is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding.181 Only if there is evidence to the contrary must the executor establish affirmatively, to the civil standard, that the testator was of sound mind.182

Probate largely distinct from construction

11.35 As probate represents the official proving of the will, the court (or registrar) in determining whether or not to grant probate does not address matters of construction relating to the terms of the will, except to the limited extent that these are germane to determining which of two or more documents presented should be admitted to probate.183 Matters of construction can arise in the probate context where, say, the court must assess whether a testator has, by a later testamentary document, revoked an earlier one, or instead is no more than a codicil.184 But any other question of construction, or other interpretation of the relevant documents, in an historical sense has been branded ‘a matter for the Court of Chancery’.185 Though the latter reflects a relic of distinct Chancery and Probate court divisions,186 which is no longer so, it serves to highlight the distinct functions of a court in this context. Young J in Re Estate of Dippert explained the rationale for these distinct functions:187 One of the principal reasons for confining the powers of the Court of Probate in construing wills in this way is because the evidence which is properly received by a Court of Probate a fortiori when a Court of Probate is considering a rectification case, ranges over a wide range of matters including declarations of intention and what the testator said to his solicitor. When a Court of Equity is construing a will the Court is confined to the words used by the testator plus the factual matrix in which the will was made.

Accordingly, only once the court has granted probate will it ordinarily deal with contentions concerning the construction of the relevant will. In so doing it acts, it is said, as a ‘court of construction’, the objective being to ascertain the intention of the testator vis-à-vis the distribution of his or her estate. [page 358]

Grant of ‘double probate’ 11.36 As a testator can appoint co-executors,188 the court can therefore grant probate to co-executors.189 It is within the court’s jurisdiction, also, to grant probate to one or some of the executors named in a will, commonly reserving leave to the other executor(s) — if they have not renounced190 — to apply for a grant at a future time. This is recognised explicitly by statute or probate rules,191 and in any event appears to reflect the position at general law.192 So, for example, there is scope for the court to reserve leave to a

nominated executor who is mentally incapable,193 under-age194 or unable to be contacted195 to make application, upon resuming or becoming capable or contactable, for probate. When an executor who has been granted leave to apply subsequently applies for probate, the ensuing grant, if made, is known as a ‘double probate’. This may occur where, say, the proving executor becomes, due to mental or physical incapacity, incapable of managing his or her affairs196 but is not confined to this scenario. The grant of double probate confers the same rights as an original grant, albeit that it relates to the estate that remains unadministered at that date, and runs concurrently with the original grant if the original grantee(s) are still living.197 It is thus conceivable that there could be several current grants of double probate. When a grant of double probate is made, the usual practice of the court is to require the original probate to be brought into the registry, to bind the original probate up with the newly made grant of double probate, and to issue that document in its bound form. This ensures that any person who views the original of the grant of probate sees a document that accurately states the position concerning the grant of representation made in the estate.198 [page 359]

Administration Administration in the event of intestacy 11.37 A deceased who leaves no will (that is, has died intestate) therefore has appointed no person to administer the estate. In this circumstance, the person who is ultimately empowered to carry out this function — which like an executor involves getting in the estate of the deceased and paying its debts and liabilities before its distribution, in accordance with the intestacy rules in this event — cannot derive authority from the expression of the deceased’s wishes. After all, the deceased has left no instructions for the disposition of his or her estate. Rather, the authority is premised on a court order, upon application by a person interested in the estate,199 or otherwise by the Public Trustee200 or a

trustee company. The grant is, in these circumstances, known as ‘administration’ (or ‘letters of administration’).

Administration outside of intestacy — administration cum testamento annexo 11.38 Grants of administration are not confined to the intestacy scenario. A form of grant of administration, termed ‘administration cum testamento annexo’ or ‘administration cta’ (meaning ‘with will annexed’), is apt where the deceased leaves a will without appointing an executor,201 where the appointment under the will fails for uncertainty,202 or where the appointee is unwilling or unable — by reason of death,203 incapacity204 or incarceration205 — to [page 360] act.206 The administrator is usually the same person who would have been appointed had the deceased died intestate,207 but must implement the instructions contained in the will,208 except to the extent of a partial intestacy, in which case the intestacy rules apply.209 11.39 The probate legislation in most jurisdictions gives statutory recognition to this form of administration. In the territories, New South Wales and Western Australia it empowers the court if ‘necessary or convenient’210 — where a person died testate but without appointing an executor, or appointed an executor who is not willing or competent211 to take probate or resides outside the jurisdiction212 — to appoint an administrator of (any part of) the estate, and limit the administration as it considers appropriate.213 Other than in Western Australia, the same is expressed to apply in the event of intestacy. The legislation adds that, if the nominated executor fails to either prove the will or renounce probate within a set time of the testator’s death,214 or is unknown or cannot be found, the court may, on application by a person interested in the estate, a creditor of the estate or, in New South Wales and the Northern Territory, a professional personal representative,215 make an order for administration cum testamento annexo, as well as any other order(s) it considers appropriate.216 In Victoria the same ensues if the named executor or

any person with possession of any will neglects to bring it into court, or the named executor neglects to prove the will or renounce probate thereof, within six weeks from the date of the testator’s death.217 11.40 Consistent with the scenario where the testator survives the appointed executor, appointment of a partnership of solicitors as executors can be ineffective if the partnership dissolves before the testator’s death. This occurred in In the Estate of Yearwood,218 where the [page 361] testator appointed as executors (and trustees) partners in a named firm of solicitors at the date of the testator’s death ‘or the firm which at that date has succeeded to and carried on its practice’. The partnership dissolved, without a successor, prior to the testator’s death. Legoe J noted that the appointment clause named the partners, not the firm, and that in any case the firm, as a partnership, had no juristic personality. Accordingly, even if a firm is appointed, where it is a partnership the appointment is treated as one of the individual partners composing the firm.219 This led his Honour to rule that the appointment clause failed for uncertainty, as in the circumstances the partners in the firm as they were at the time when the will was executed were no longer identifiable at the date of death.220 Hence, there was no effective appointment of any person as an executor or trustee of her will. The application of the testator’s niece and appropriate next of kin, for the grant of letters of administration cum testamento annexo, was therefore granted. Legoe J accepted that ultimately the question is one of construction of the relevant appointment clause, vis-à-vis the events that have occurred. It follows that will drafters can reduce the prospects of a firm forfeiting its role (and fees) as an executor by careful wording that encompasses potential dissolution scenarios221 (and, in the modern environment where law firms can incorporate,222 the prospect of incorporation).223 On the facts in Yearwood, the wording suggested a single successor, and therefore was arguably too restrictive. This led Legoe J to issue the following admonition:224 [I]t is appropriate to draw the attention of draftsmen … to the dangers which can arise by using

such a clause in circumstances such as have arisen in this case. It is not uncommon at the present time in South Australia, with a legal profession where the majority of practitioners are of a young age, to find firms, even large firms, of solicitors changing their composition at very frequent intervals, and indeed disintegrating into various smaller firms which usually do not succeed to the business of the previous firm. Only partners who have established a security of tenure would appear to be the proper objects of such a clause. If in doubt the clause may be better left out of the will. Certainly such testamentary authors would be wise to keep a vigilant eye on the careers of such appointees.

11.41 Once administration cum testamento annexo has been granted, no power resides in any executor to bring any action or otherwise act as executor in respect of the estate comprised in or affected by the grant until the grant has been recalled or revoked. This is made explicit by the probate statutes in some jurisdictions,225 but in any case, due to the very nature of a grant of administration, reflects the position elsewhere. [page 362]

Limited grants of administration 11.42 The law has long recognised various forms of limited226 administration, dealing with the manifold scenarios that may arise in cases where the administration of the deceased’s estate could otherwise be compromised by the lack of a person appointed for this purpose. The forms of limited administration discussed below, it must be understood, though the chief illustrations of the court’s jurisdiction to this end, do not exhaust it.227

Administration de bonis non 11.43 A grant of ‘administration de bonis non (meaning ‘of the estate not administered’)228 is apt in cases where the surviving or sole personal representative dies or goes missing before completing administration of the estate229 (namely where, it is said, the ‘chain of representation’ is broken). It is likewise apt where the administrator is appointed pursuant to the revocation of probate to the appointed executor(s) after the executorial function has commenced.230 Accordingly, it serves no useful purpose, and so is not granted, where nothing of substance remains to be administered in the estate.231 An

administrator de bonis non has the same power and authority, vis-à-vis what remains to be administered, as the original personal representative.232

Administration durante minore aetate 11.44 As a personal representative holds title to property for the purposes of administering the estate of the deceased, an appointee must possess the legal capacity to hold property. In the event that a testator appoints a minor as his or her executor, the law addresses the problem of capacity by making a grant of administration durante minore aetate, that is, until the minor reaches the age of majority, when a final grant ensues.233 Nor will a court grant administration to a minor, a point probate statutes in some jurisdictions make explicit,234 and is in any case implicit in the rules noted below that provide for a grant durante minore aetate. [page 363] In each instance the administrator has all the powers of an ordinary administrator,235 but this limited administration comes to an end upon the minor attaining majority.236 11.45 In the Australian Capital Territory and Queensland the court rules empower the court to grant administration during minority to the minor’s guardian, the Public Trustee or anyone else it considers appropriate.237 In New South Wales and the Northern Territory, the rules confer the same power, but direct it to the minor’s legal or testamentary guardian, a guardian elected by a minor aged 16 years or more238 or, on application, a guardian of the minor assigned by the court.239 In the same event, the South Australian probate rules state that administration is to be granted to:240 • both parents of the minor jointly, or to one parent with the consent of the other, or to the statutory or testamentary guardian or any guardian appointed by a court of competent jurisdiction; or • if there is no such guardian able and willing to act and the minor has attained the age of 16 years, to any next of kin elected by the minor.

Notwithstanding the foregoing, administration may be granted, on application by the intended guardian, to a person assigned by order of the registrar, in default of, jointly with or to the exclusion of any of the above persons.241 In Tasmania the probate rules envisage that grants of administration may be made to guardians of infants for their use and benefit, and elections by infants over 7 years of age of a guardian are required.242 In cases of infants aged under 7 without a testamentary or court-appointed guardian, a guardian must be assigned by court order.243 The Victorian rules also provide for a grant of administration to a guardian of a minor, and allow a minor aged 12 years or over to elect a guardian, otherwise leaving the court to assign a guardian.244 The registrar can make no such assignment unless satisfied that the proposed guardian is ready and able to undertake the guardianship and that either the proposed guardian is de facto next of kin of the minor or that the de facto next of kin consents to the assignment.245 The position is not dissimilar in Western Australia, except that the threshold age for elections is 14 years, and that otherwise the registrar may, on application, appoint as guardian a fit and proper person who consents to act.246

Administration durante dementia 11.46 If the person appointed as executor under the deceased’s will, or who would in the event of intestacy otherwise have the greatest claim to being appointed as administrator of the deceased’s estate, is incapable or loses capacity during the course of the representation, a limited grant of administration durante dementia247 — limited in time to the incapacity in question — [page 364] can issue to an appropriate person otherwise with standing to seek administration.248 If no such person is prepared or able to make the application, the grant may ensue to a stranger, with the consent of any next of kin of the incapable person.249 If the latter recovers capacity, administration

durante dementia expires, and the original representation revives.250 If there is no prospect of recovery, instead of ordering administration durante dementia, the court may make the grant de bonis non.251 11.47 Unlike their counterparts elsewhere, the South Australian and Tasmanian probate rules contain a dedicated provision addressing the above scenario. The South Australian rules empower the registrar, if satisfied that a person entitled to a grant — whether of probate or administration — cannot, by reason of mental or physical incapacity, manage his or her affairs, to order administration for that person’s use and benefit (whether limited during the person’s incapacity or in such other way as the registrar may direct). The grant is to the relevant person(s) charged with managing the affairs of a mentally incapable person. Absent those persons or in the case of physical incapacity, the grant is to the person who would have been entitled had the incapable person died intestate, or otherwise to such other person as the registrar may direct (unless the incapable person is entitled as executor and has no interest in the residuary estate of the deceased, in which case the grant is to the person entitled to the residuary estate).252 The rules add that, where after a grant has been made the sole (surviving) executor or administrator becomes incapable of managing his or her affairs by reason of mental or physical incapacity, an application for a grant of administration de bonis non for the incapable grantee’s use and benefit, limited during his or her incapacity, may be made in accordance with the above.253 If a grant of administration was made to two or more persons, of whom one becomes by reason of mental or physical incapacity incapable of managing his or her affairs, a grant of administration may be made to the capable administrator(s).254 In Tasmania the probate rules state that, where the court is satisfied that a person entitled to a grant of probate or administration is, by reason of mental or physical incapacity, incapable of managing his or her affairs, it may grant administration for the use and benefit of that person, limited during his or her incapacity or in such other way as it directs, to such other person as the court may direct.255

Administration in absentia (or ‘durante absentia’) 11.48

Other than in Queensland,256 the probate statutes provide that, if a

person’s executor (to whom probate has been granted) or administrator resides outside the jurisdiction at the [page 365] expiry of 6 months (12 months in Tasmania and Victoria) from the date of the person’s death, the court may, on application by a prescribed person,257 grant the applicant administration (in absentia), to persist until it is rescinded.258 This aims, it is said, to ‘meet the circumstances of an executor or administrator being out of the jurisdiction for a sufficiently long time to cause trouble or inconvenience in the administration of the estate’.259 The power to grant administration in absentia, in any case, comes within the court’s inherent and general statutory jurisdiction.260 In the territories, New South Wales, South Australia and Western Australia, on returning to the jurisdiction the personal representative may apply to the court to rescind the grant of administration in absentia.261 The court may order rescission on the terms and conditions it considers reasonable, upon which the original representation is and remains as valid and effectual as if the special grant had not been made.262 On rescission being ordered, the special administrator must account to the original personal representative, and pay over money received as special administrator that remains undisposed.263 If the personal representative, in these circumstances, neglects to make the said application, he or she is liable for all claims and demands against the estate to the extent of its assets that have come (or might have come) into his or her hands apart from his or her wilful neglect or default.264 In Tasmania and Victoria the consequence of the personal representative returning to the jurisdiction while legal proceedings to which a special administrator is a party is pending is that he or she must be made a party to the proceeding, and the costs of and incidental to the special administration and the legal proceedings are to be paid by such person and out of such fund as the court in which the proceedings are pending directs.265

Administration pendente lite

11.49 While any legal proceeding touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any grant of representation, is pending, the probate statutes or rules in each jurisdiction empower the court to grant administration of the estate to an administrator (in this context termed an administrator pendente lite, that is, ‘while litigation is pending’).266 In the territories, New South Wales and Queensland this power extends to [page 366] where there is a contested right of administration. As an appointee (and thus an officer)267 of the court, the administrator is subject to the court’s control268 and can exercise power only as conferred by the court. In most jurisdictions provision is also made for the court to make the orders for the remuneration of the administrator.269 As the administrator is appointed while litigation is pending, the temporal parameters of the administration ordinarily chart those of the litigation.270 11.50 Whilst there is no fixed role for every administrator pendente lite — it varies according to the circumstances in, and the purpose for, which the appointment is made — courts often speak of ensuring that the assets of the estate, the destination of which is disputed, are recovered and then preserved for the benefit of those ultimately found entitled.271 An administrator pendente lite differs, to this end, from a trustee, who ordinarily presides over the ongoing management of the trust property, or an administrator under company law, whose powers can include carrying on and managing the business of the company.272 An administrator pendente lite does not hold the property in question on trust or in any other capacity for anyone else, but essentially as a stakeholder, pending the determination of the relevant entitlement(s) to it by the resolution of the litigation in question.273 No claimant, therefore, has any beneficial interest in the property during the administration. If an analogy is to be made, the closest is arguably to a receiver appointed by the court, whose duties are also governed by the terms of the appointment and the directions of the court, and who must exercise reasonable care and skill to

preserve the assets under his or her control.274 Like a receiver appointed by the court, but unlike a privately appointed receiver, the appointee is ordinarily best someone independent of the disputants. Courts espouse the desirability of appointing an administrator pendente lite ‘totally dissociated’ from the litigation, avoiding someone who may be perceived to be acting as an agent for any party.275 As far back as 1822 an English judge referred to the curial practice that ‘constantly declined putting a litigant party in possession of the property by granting administration pending suit to him [but] granting it … to a nominee presumed to be indifferent between the contending parties’.276 The very [page 367] nature of the Public Trustee makes it a suitable appointee,277 but it holds no monopoly in this regard. Although there is no absolute rule precluding an interested person being appointed as administrator pendente lite — the court retains a discretion as to the appointee — such an appointment is confined to the exceptional case.278 An Australian case illustration of the application of the general rule is Tomkinson v Hersey,279 where it was alleged that one of the two appointed executors had exercised undue influence over the testator. Cox J held that the executor against whom the allegation was made should not be appointed administrator pendente lite, but that the appointment should vest in the other executor. In reaching this conclusion, his Honour noted that the impugned executor’s personal interest in the outcome of his action for proof in solemn form was ‘far from slight’, as he would take under the will the validity of which was challenged in the proceedings.280 Refusing the appointment was not ‘to prejudge the issue between the litigants or to reflect in any way upon the good name of the applicant’, Cox J added, but was ‘merely to ensure that the administrator remains aloof from the court proceedings and indifferent to their outcome’.281 11.51 The desirability for independence draws, inter alia, from the duty of administrators pendente lite to maintain impartiality between the interests of the

claimant beneficiaries. In this respect, administrators are not unlike trustees who, where different classes of beneficiaries are involved, must not favour the interests of one class to the prejudice of another.282 A typical example, in both the trust and succession contexts, may arise where the estate is comprised of company shares, as occurred in Henderson v Executor Trustee Australia Ltd.283 The issue involved whether an administrator pendente lite, appointed to hold shares in a company subject to a takeover offer because potential beneficiaries of the shares disagreed whether or not to accept the offer, was entitled to vote at a shareholders’ meeting. Debelle J said that were the administrator to vote, far from acting impartially as between potential beneficiaries, he would be preferring the interests of one group over those of the other.284 In remarks highlighting the limited role of an administrator pendente lite, his Honour also made the following observation:285 The administrator’s] duty cannot be elevated to secure the highest price for the shares since that would be to prefer the interests of one potential group of beneficiaries over another. There will be cases where it is plain that the interests of all potential beneficiaries are the same and the only issue is who those beneficiaries will be. In that case the court may readily be able to give directions to realise the asset at its highest value. In other cases, and this is one, the beneficiaries

[page 368] will have differing views as to how particular assets of the estate will best be administered. In that case, unless the beneficiaries consent, the court may not be in a position to direct the sale at the highest possible value.

Anderson J concurred, emphasising that, as disputing parties are only potential beneficiaries, until the dispute is finalised ‘there is no ability to predict how many of them and in what proportions they will have a capacity to exercise voting rights in relation to the shares’.286 11.52 The one occasion, more so than any other, where a court may accede to appointing an interested person as an administrator pendente lite is where, in what is likely to be unusual, the parties consent to the appointment.

Administration ad litem 11.53

Another form of limited grant of administration is known as

administration ad litem (administration ‘for the suit’). While, unlike administration pendente lite, no statutory provision or rule specifically mentions administration ad litem,287 it comes within the courts’ inherent or otherwise general statutory jurisdiction to grant administration.288 As its title suggests, an administrator ad litem is appointed to enable the estate to bring or defend legal proceedings, and represents the estate for that purpose.289 The need for this appointment stems from there being no personal representative who takes out the grant; the appointment is limited to the object of the suit290 and premised on the action being within the jurisdiction where the grant is sought.291 A person with a conflict between interest and duty vis-à-vis the action — including a potential defendant in an action by the estate, or someone with a claim to estate assets inconsistent with the claim of the estate itself — cannot truly act on behalf of the estate, and so should not be appointed as administrator ad litem. But merely because a putative appointee strongly believes in the merits of the action being advanced by the estate, or has concurrent or parallel interests,292 does not by itself create a conflict of interest.293 11.54 As an administrator ad litem is ‘as much an administrator as any other administrator’,294 the appointment is premised on a formal grant of administration. However, the need for this formality, and thus to appoint what has historically been understood as an administrator [page 369] ad litem, has been largely obviated by provisions in the court rules in each jurisdiction that empower the court to appoint a person to represent a deceased estate that has an interest in a proceeding wherein the deceased person has no personal representative.295 Such an order, and a judgment or order subsequently given or made in the proceeding, is declared by these rules to bind the estate as if a personal representative of the deceased had been a party.296 There is, accordingly, no need under the rules for the formal appointment of an administrator ad litem, even though the effect of the appointment is one akin to that of an administrator ad litem297 and the

appointee is likely to be the person who would have been appointed administrator ad litem.298 11.55 The usual circumstance in which a personal representative would be appointed under the rules is where no person is willing or able to take out a grant of probate or administration and proceedings cannot be continued or disposed of without a representative of the estate.299 However, use of the rules is not confined to these circumstances. Older cases highlight their utility in circumstances where a dispute as to the deceased’s will or codicil prevents the grant of probate, and someone is needed to represent the estate in the dispute.300 But a court is disinclined to make a limited grant of this kind where there is available an appropriate person to take out a general grant of administration.301

Administration ad colligenda bona 11.56 A further form of limited administration is termed administration ad colligenda bona,302 that is, ‘to collect the goods’. From early times in England, grants of a limited administration were made by the Court of the Judge Ordinary for the purpose of collecting property of a deceased that was perishable or of a precarious character, and there would be unavoidable delay in the court granting probate or general administration. Though historically confined to preserving personal property, changes to statute303 extended the grant to encompass real property.304 The features of the grant persist to this day, as explained by Gillard J in Re Cohen (deceased):305 If there should be some existing circumstance whereby a grant of probate or administration cannot be made promptly and the nature of the estate of the deceased person requires protection by a personal representative of the deceased, the court has clear power to and will authorize some person to collect and protect the assets of the estate until a grant of probate of a will or full administration of an estate can be made. The foundation for making the grant is that the usual representation for some reason cannot be promptly obtained after death and the nature of the assets of the deceased require that something be done about their administration for their protection.

More generally, it has been judicially observed that ‘[t]he primary function of an administrator ad colligenda bona is to gather in and preserve the estate of the deceased until a general grant

[page 370] can be made’.306 Hence any such appointment is, it is said, ‘crafted’ to meet its object, which accordingly do not normally encompass the investment, sale or distribution of estate assets except as explicitly prescribed in the grant.307 11.57 A common example of administration ad colligenda bona is to protect the conduct of a business of a deceased person so that it might be safeguarded and protected as an asset of the estate. For example, in In the Goods of Bolton308 where a shopkeeper, who died intestate, had no next of kin within the country, and it was necessary to sell the goodwill immediately to preserve the value of the business, Gorell Barnes J granted administration ad colligenda bona to a friend of the deceased, whom the deceased had shortly before his death asked to manage his affairs. In In the Estate of Rowell309 such a grant was made to preserve the deceased’s legal practice in circumstances where the sole executor was not immediately in a position to apply for probate. More recently, in Re Estate of the late Assim310 the purpose of the proposed appointment was chiefly to preserve the value of the deceased’s real estate business from damage that would flow from an inability in the immediate future to disburse money from the rent roll. Yet a grant ad colligenda bona is not limited to the business scenario. It may be apt if necessary, say, to protect property within the jurisdiction of a non-resident deceased.311 11.58 It is open to a court to grant administration ad colligenda bona to a creditor of the deceased for the purpose of preserving the deceased’s asset(s) securing the creditor’s interest but not for any other purpose;312 here the administrator is, it has been said, ‘practically in the position of a receiver’.313 It follows that, unless it is necessary to secure this objective, the administrator so appointed will not be granted the power to carry on the deceased’s business or dispose of its goodwill.314 Ultimately, what powers vest in an administrator ad colligenda bona rest on the terms of the relevant order, informed by the purpose of the appointment.315 As appears from the foregoing, the appointment of an interested person as administrator, at least where the case is not contentious, may well be sensible. But in a highly contentious case, where serious divisions arise between the persons with an interest in the estate, an independent appointment is entirely

apt.316 Otherwise those with an interest in the estate cannot have confidence in the appointee. For this purpose, the lawyer who represents one of the parties involved cannot reasonably be viewed as independent or impartial. [page 371] 11.59 The grant of administration ad colligenda bona, being a limited grant, ends on the issue of a full grant of probate or administration.

Administration bonds and guarantees Nature and rationale 11.60 The probate statutes (court rules in the Australian Capital Territory), other than in Queensland and more recently in South Australia and Tasmania, make provision for the court to order an administrator, as a condition to being granted letters of administration, to give the appropriate bond (or, increasingly, guarantee) to secure the performance of the duties as administrator. The legislation variously states those circumstances where such a bond or guarantee may be required, as well as occasions it is not, or can be otherwise dispensed with. The rationale stems from the fact that, unlike an executor, the appointment of an administrator is not an expression of a deceased’s choice. It is an act of the court and so, it is reasoned, some additional security317 for the performance of an appointee’s functions may be apt, a point judicially elaborated as follows:318 The guarantee is in effect a guarantee against the maladministration of the estate … It is a guarantee against a breach by the administrator of his or her duties in administering the estate. The cases in which a guarantee is required are cases where the estate is vulnerable in the sense that there is an increased risk of maladministration or an increased difficulty in recovery should there be maladministration. The guarantee provides an additional assurance of the due and proper administration of the estate and an additional remedy should there be maladministration.

Yet it may well be queried whether what underscores provision for administration bonds and guarantees — the fear that administrators are more likely to abuse their position than executors — is a valid premise. To the contrary, that administrators often have a weighty interest in the deceased’s

estate319 may itself carry a strong motivation to properly administer it. Executors, on the other hand, do not always have an interest in the estate, but may be appointed precisely because they are at arm’s length.320 Coupled with the rarity of applications to enforce administration bonds or guarantees, the costs associated with a surety arrangement and difficulties in finding persons to act as sureties,321 the foregoing led law reform bodies to [page 372] recommend the abolition of administration bonds and guarantees322 (heeded in Queensland323 and, more recently, in South Australia324 and Tasmania).325 The case law also reveals applications to dispense with sureties grounded in the (allegedly informed) consent of the persons interested.326 Although the relevant provisions between jurisdictions cover common ground, they vary sufficiently to merit separate treatment so as to eschew misleading generalisations.

Australian Capital Territory 11.61 In the Australian Capital Territory the ‘administration bond’ provisions state that, if a person applies for grant of letters of administration without the will annexed, the court may, as a condition of granting administration, require one or more sureties acceptable to the court to guarantee by bond (an ‘administration bond’) that they will make good, up to the required amount,327 any loss that anyone interested in the administration may suffer due to a breach of the administrator’s duties.328 But no administration bond is required if administration is granted to a person on behalf of, or the Public Trustee of, the territory or another Australian jurisdiction, or to a trustee company.329 Also, if any part of the estate passes to the intended appointee, or to beneficiaries being sui juris and who consent in writing to the administration bond being dispensed with, the court may dispense with the bond, wholly or partly.330 If the court requires an administration bond, it may, upon application of anyone interested in the estate or on its own initiative on the registrar’s report,

at any time before the bond has been given, order that its amount be reduced or increased.331 It may do the same once an administration bond is given.332

New South Wales 11.62 The New South Wales legislation requires a person, prior to the issue of administration in his or her favour, to execute a bond with one or more sureties conditioned for duly collecting, getting in, and administering the estate of the deceased.333 The bond equates to the amount under which the property of the deceased is sworn, although the court may dispense with the bond or with one or both of the sureties, or direct that its amount be reduced, or may direct [page 373] that more bonds than one be given so as to limit the liability of any surety to such amount as the court thinks reasonable.334 In place of a bond, the court may accept the security of any incorporated company or guarantee society it has approved.335 But no bond is required where administration is granted to the NSW Trustee, any person to the use or for the benefit of the Crown, or to a trustee company (unless, in the case of a trustee company, the estate exceeds $50,000 in value and the court so orders).336 If, upon application by a surety to an administration bond, it appears to the court that the estate is (in danger of) being wasted, or the surety is (in danger of) being prejudiced by an act or default of the administrator, it may grant such relief as it thinks fit.337 Equivalent provision, to this end, is made in the Northern Territory and Western Australia (and formerly in South Australia), although the Western Australian (and former South Australian) provision adds that relief may be granted if a surety desires to be relieved from further liability.338 The New South Wales Act (and its Northern Territory counterpart) adds that at any time after administration has been granted, the court may, on application by a person interested in the estate, order the administrator to execute an (additional) bond of such amount and within such time as the

court thinks fit.339 In the event of a failure to comply with this order, the court may remove the administrator and appoint another person in his or her place, with power to sue or be sued upon any contract made by the removed administrator.340

Northern Territory 11.63 In the Northern Territory the registrar may order a person who is to be appointed as administrator to enter into a bond with a surety for duly collecting, getting in and administering the estate of a deceased person.341 No bond or security is required from the Public Trustee or a trustee company in this context,342 and the court may, in any case, dispense with a bond, dispense with one or both of the sureties, or reduce its amount.343 Like its New South Wales counterpart, the Northern Territory legislation empowers the court at any time, upon application by a person interested in the estate, to order the administrator to execute a bond, or an additional bond, of such amount and within such time as the court thinks fit, albeit with one surety being an insurance company approved by the Minister.344

South Australia (formerly) 11.64 Provision for administrators to provide a surety in South Australia was repealed by the Administration and Probate (Removal of Requirement for Surety) Act 2014 (SA), as from 29 September 2014. Prior to this date an administrator was required to provide a surety (an ‘administration guarantee’) where:345 • the administrator was not resident in the state; • the administrator had any legal or equitable claim against, or interest in, the estate arising from a liability incurred by the deceased inter vivos; [page 374] • any person not sui juris was entitled to participate in the distribution of the estate;346 or • the court was of the opinion that in the circumstances a surety was

required. The maximum liability of a surety under an administration guarantee was the amount under which the estate of the deceased was sworn, or a lesser amount if, on application, the court so ordered.347 A proceeding could only be brought on a guarantee with the court’s permission, and on such terms and conditions as the court thought fit.348 The court could, on the application of a person interested in the administration of the estate, require a further or additional guarantee, or order that a surety’s maximum liability be reduced to an amount that it thought reasonable.349 No administration guarantee could be ordered against the Public Trustee, another agency or instrumentality of the Crown, or a trustee company.350 The court could, if satisfied that it was beneficial or expedient to do so, dispense with the requirement to provide a surety;351 say, if satisfied of little risk of mismanagement of the estate352 and/or that the interests of the beneficiaries were sufficiently protected by an alternative order.353

Tasmania (formerly) 11.65 Requirement for administrators to give an administration bond was repealed in Tasmania as from 13 October 2015.354 Preceding this date, the Tasmanian legislation required every person to whom a grant of administration was made to give a bond (an ‘administration bond’) to the registrar if the registrar so required, with one or more sureties conditioned for duly collecting, getting in, and administering the estate of the deceased.355 Administration bonds were to be in the amount of the property to be placed in the possession of, or dealt with by, the administrator by means of the grant.356 But no administration bond was required of the Public Trustee, a trustee company or a person obtaining administration to the use or for the benefit of the Crown.357 Nor were administration bonds required for a grant of administration made to two or more individuals, unless the registrar otherwise directed, and nor were sureties required [page 375]

in cases where, owing to the smallness of the estate, or the fact that the person to whom administration was to be granted was the sole beneficiary, the registrar deemed it unnecessary.358

Victoria 11.66 As a condition of granting administration to any person in Victoria, the court or the registrar may require one or more sureties to guarantee that they will make good, in an amount not exceeding the amount at which the property of the deceased is sworn, any loss that any person interested in the administration of the estate may suffer from the administrator’s breach of duty (an ‘administration guarantee’).359 No action can be brought on a guarantee without the leave of the court.360 The rules add that the court may require a guarantee where an application is made for a grant of administration:361 • to a creditor of the deceased or the legal personal representative of a creditor applying in that capacity; • to a person having no immediate beneficial interest in the estate of the deceased;362 • to an attorney of a person entitled to a grant of administration; • to the use and benefit of a minor or of some person incapable of managing his own affairs; • to any person who appears to be resident outside the State of Victoria; • to collect and preserve the assets of the deceased (namely a grant ad colligenda bona); • to bring or defend a proceeding (namely a grant ad litem); • in the event of pending litigation over the deceased’s will or the grant of probate;363 • in the event that the deceased’s personal representative resides outside the jurisdiction;364 or • in any other case where it considers that special circumstances make it desirable to so order. It has been held, to this end, that while a guarantee is required if special circumstances exist, the court has a discretion whether or not to require a guarantee in the other instances; as a matter of practice, though, what seems to be the case is that in those instances the court will require a guarantee unless

good reason is shown why a guarantee should not be required.365 But the rules add that, as an alternative to requiring a guarantee, the court may require two or more persons to make the application jointly, or that a trustee company makes it.366 No guarantee is required where administration is granted to a person for the use or benefit of the Crown or to the State Trustees.367

Western Australia 11.67 As a condition of granting administration to any person in Western Australia, the court may require one or more sureties to guarantee that they will make good, within any limit imposed by the court, any loss that any person interested in the administration of the estate of the deceased may suffer in consequence of a breach of the administrator’s duties.368 [page 376] The probate rules, however, add that no guarantee is required except where it is proposed to grant administration:369 • for the use and benefit of another person or where the grant is otherwise limited; • to an applicant who appears to the registrar to be resident elsewhere than in Western Australia; • where a beneficiary is not of full age or capacity; or • where a beneficiary is not resident in Western Australia and has no agent or attorney there. Otherwise, a guarantee is required only if the registrar considers that special circumstances make it desirable to so order.370 Also, other than in special circumstances, no guarantee is required if an applicant is a corporation authorised by Western Australian law to obtain a grant, or the holder of a current Western Australian practising certificate as a legal practitioner.371 Nor is a guarantee required from the Public Trustee or from a person obtaining administration for the benefit of the state.372 The amount of any guarantee is to equate to the gross value of the estate in

Western Australia or such reduced or increased amount as the registrar orders.373 An action on a guarantee can be brought only with the leave of the court or the principal registrar, and on such terms and conditions as the court or the principal registrar thinks fit.374

Devolution of Estate Historical backdrop — distinction between real and personal estate 11.68 Historically, English courts treated a deceased’s personal estate differently from his or her real estate, which translated into the distinct treatment of the devolution of those estates. As the personal estate fell within the jurisdiction of Ecclesiastical courts, it passed directly to the executor or, where administration was necessary, to the administrator. A deceased’s real estate, being subject to courts of common law, vested immediately in the deceased’s heirs, thus bypassing the executor. The relevant history was catalogued by Griffith CJ in Union Bank of Australia v Harrison Jones and Devlin Ltd, who identified a consequence of this dichotomy as the following:375 [I]f … a creditor of a testator had desired to obtain satisfaction of his debt from both the real and personal property of the testator by action at law, he would have had to bring separate actions, one against the executor, in which he would have had recourse to the personal estate, another or others against the heir and devisees, in which he would have had recourse to the realty.

11.69 This inconvenience, coupled with the administrative fusion of law and equity in the one court, triggered the need for statutory intervention. The current Australian probate statutes, to this end, retain provisions directed to assimilating the treatment of a deceased’s personal and real estate, which uniformly is to vest in personal representative(s). It is made explicit, for instance, that on the grant of representation of a deceased estate, all real and personal estate of which the person dies seised or possessed of, or entitled to, in the jurisdiction that is unadministered at the date of the grant, passes to and becomes vested in the personal [page 377]

representative.376 And statute declares the real, as well as the personal, estate of a deceased person to be assets in the hands of his or her personal representative for the payment of all duties and fees, and of his or her debts, in the ordinary course of administration.377 In each jurisdiction it also vests in the personal representative to whom representation has been granted the same rights, and imposes the same duties, with respect to real estate as personal representatives have or are subject to with reference to personal estate.378 Its antecedent in the former New South Wales legislation,379 Griffith CJ ruled in Union Bank, sought to ‘alter the channel of devolution of real estate’ and to ‘assimilate the rights of creditors with respect to real and personal estate for all purposes’.380 11.70 Various other sections in the probate statutes address the same historical phenomena. There is a statutory assimilation, as between the personal and real estate of the deceased, of the practice and procedure in relation to the grant of administration.381 In some jurisdictions it is expressly stated that representation may be granted in respect of the real estate of a deceased person either separately or together with his or her personal estate.382 And in others statute requires the real estate of every deceased person devising that estate by will to be held by the personal representative, according to the trusts and dispositions of the will.383

Vesting of estate prior to grant of representation Role for Public Trustee (or equivalent) 11.71 As a ‘temporary expedient’ that prevents a lacuna in the chain of title,384 other than in Queensland the probate statutes (in Western Australia, the public trustee statute) provide for vesting of a deceased person’s real and personal property in the Public Trustee or equivalent385 (the Chief Justice in Tasmania) until representation is granted, albeit only in the event of intestacy (whether whole or partial) in South Australia, Tasmania and Victoria. The Northern Territory and Western Australian legislation is phrased in essentially these terms.386 Elsewhere, excepting South Australia, the relevant section states that the vesting is to occur in the same manner and to the same extent as the deceased’s personal estate and effects formerly vested in the Ordinary of

England.387 In South Australia the vesting is expressed to occur in like manner and to the like effect as, immediately after the entry into operation of the Court of Probate Act 1857 (UK),388 the personal estate and effects of persons dying intestate in England vested in the Judge of the Court of Probate.389 In Queensland, statute dictates that a deceased’s property devolves and vests, on the date of the deceased’s death, in his or her executor(s) unless there is no executor, or no executor able and [page 378] willing to act, in which case it vests in the Public Trustee.390 In South Australia and Tasmania, outside of intestacy the deceased’s property vests in the appointed executor(s) pursuant to statute in the case of realty391 and at common law for personalty.392 In Victoria the common law similarly operates vis-à-vis personalty, but the vesting of realty is premised upon a grant of representation.393 The common law reflects the notion that an executor ‘takes his title from the will of the testator and not from the probate’.394 Therefore, to the extent that the Public Trustee takes under statute outside of intestacy, the statute serves to modify the common law position. 11.72 To the extent, in any case, that the common law applies or is replicated by statute, executors’ practical ability to legally deal with the deceased’s property before being granted representation may be restricted by the fact that, without that grant, they may be unable to prove their title to third parties with whom they deal on behalf of the estate.395 But in relation to assets that do not require the executors to obtain title by transmission, such as tangible chattels, there is nothing to preclude executors dealing with these without a grant of probate.396

Scope of Public Trustee’s role 11.73 The aforesaid makes it necessary, other than in the Northern Territory and Western Australia, to understand how the personal estate and effects vested in the Ordinary of England or, in South Australia, in the Judge of the English Court of Probate prior to 1858. Approaching a millennium ago,

if a person died intestate the King, as parens patriae, took the goods of the intestate and used them to pay the intestate’s debts and burial expenses, and then for the advancement of his wife and children, or otherwise his blood relations. These functions were later committed to the Bishop of the Diocese in which the intestate’s goods were found, the Bishop described as ‘the Ordinary’ when acting in this capacity.397 The passing of time saw the functions of the Ordinary become more and more confined by statute,398 culminating in the Court of Probate Act 1857, pursuant to which the powers of the Ordinary were transferred to the Judge of the Court of Probate and, for the period between death and the grant of administration, the intestate’s personal estate and effects were ‘vested in the Judge of the Court of Probate for the time being, in the same manner and to the same extent as heretofore they vested in the Ordinary’.399 11.74 The phrase ‘formerly vested in the Ordinary’ (in New South Wales ‘as aforetime … vested in the Ordinary’) has been held to refer ‘to the extent to which the goods were vested [page 379] in the Ordinary when this function was last exercised by him in England‘.400 If this is correct, and it is difficult to conclude otherwise, the difference in wording between the South Australian legislation and its counterparts is not one of substance. Immediately preceding 1858, the Ordinary’s role, though it included granting probate or administration and supervising the accounts of personal representatives, did not extend to the control or disposition of the goods of the intestate. This narrow construction of the Ordinary’s powers led Street CJ in Ex parte the Public Trustee401 to rule that it was not intended that the Public Trustee should be put in the position of being joined as a party to litigious proceedings, and that no action can be maintained in respect of the estate of the deceased person other than by a duly constituted administrator or executor. The Chief Justice described the Public Trustee in this context as ‘a mere formal repository of the legal estate’, beyond which ‘he has no functions,

no powers and no duties in respect of the estate … and cannot be made a party to litigious proceedings’.402 This meant that the Public Trustee lacked the power, in respect of the estate of a deceased person before grant of administration, to bring an action to recover property transferred as a result of, say, undue influence. The following year the High Court in Andrews v Hogan403 adopted an ostensibly more expansive approach. The issue was whether a notice to quit was properly served on the Public Trustee where the deceased tenant had appointed her sons as executors and sole beneficiaries but probate had not yet been granted. The Public Trustee responded that, as summarised by Dixon CJ, he was ‘merely the repository of the estate’ and merely held the property during ‘the hiatus of possession’, and so was not a proper party in the suit, with no powers to exercise and no active duties to perform in connection with the estate.404 Yet all members of the court held that the notice could properly be served upon the Public Trustee as the repository of the title to the estate.405 It was unnecessary to canvass in detail the duties of the Public Trustee, but Fullagar J opined that the Public Trustee has some rights and powers, ‘though it may very well be that he has no active duties’.406 GEL Custodians Pty Ltd v Estate of late Wells407 applied the reasoning in Andrews v Hogan by analogy vis-àvis the Public Trustee as a defendant to proceedings claiming possession by reason of a default in a mortgage. 11.75 It follows that the Public Trustee is no mere empty vessel; the ‘mere formal repository of the legal estate’ stated by Street CJ is too restrictive.408 But limits remain to the Public [page 380] Trustee’s power and responsibility for estate property.409 The lack of ‘active duties’ dictates that the Public Trustee has no liability for the payment of rent in this context, or more generally for the performance of any obligations that are imposed upon the (deceased) lessee by the lease.410 It may also confine the Public Trustee’s status as a litigant. For example, in Re Cameron411 Wallace J, after opining that it was not intended that the estate’s administration should

vest in the Public Trustee ‘other than for the momentary holding purpose prevailing between death and the point of probate or administration and to satisfy the need to give ownership to real and personal estate’, concluded that the Public Trustee should not have been joined (as a defendant) in an action by the plaintiffs to seek due administration of the estates of several deceased, at a time when no personal representatives of some of the deceased had been appointed. 11.76 The position at common law is arguably replicated by specific provision in the Queensland legislation, which states that, pending the grant of representation, the Public Trustee is not required to act in the administration of the estate, or exercise discretions, powers or authorities of a personal representative, merely because of holding title to the estate property.412 It adds, however, that all acts lawfully performed by the Public Trustee before an administrator is appointed are as valid and effectual as if the administrator had performed them.413 There has been a recommendation that national model legislation contain provisions to this effect in order to eschew the uncertainty generated by the case law discussed in the preceding paragraphs.414

Statutory expansion of Public Trustee’s role in the Northern Territory, Queensland and Tasmania 11.77 The confined role for the Public Trustee is modified by statute in the Northern Territory, Queensland and Tasmania. Pending the vesting of property in a personal representative, the legislation empowers the Public Trustee, if he or she thinks fit (in Tasmania, by filing an election in writing in the office of the registrar), to exercise those powers and duties in relation to the property that he or she would have been authorised to exercise had the deceased died intestate and the Public Trustee had been granted administration.415 But limits are imposed on this ostensibly broad discretion: the Public Trustee cannot distribute property or otherwise deal with it unless permitted by the court, unless it is perishable in nature or is liable to deteriorate or decrease unduly in value if retained (or, in Queensland, it is otherwise in the estate’s interest that the property be immediately disposed).416 Also, before performing any power or duty pursuant to the foregoing, the Public Trustee must serve the requisite notice on any person he or she knows

would be entitled to apply for representation of the estate.417 [page 381]

Standing of personal representative preceding grant 11.78 An administrator derives title solely from the grant of letters of administration.418 For this reason, he or she lacks title to bring proceedings, as an administrator, on behalf of the estate prior to the grant; the writ is, in such a case, a nullity. That once letters of administration are granted the estate, including all choses in action, vests in the administrator, and the title thereto then ‘relates back’ to the date of the deceased’s death,419 does not serve to validate the pre-grant proceeding.420 11.79 At general law, as an executor derives title and authority from the testator’s will rather than from a court order (namely, a grant of probate),421 the testator’s rights of action vest in the executor upon the testator’s death. Accordingly, an executor can institute an action in the character of executor before proving the will.422 (At the same time, an executor usually cannot be sued until a grant is made,423 as the obligation to pay liabilities out of the testator’s estate does not arise until probate,424 though the position differs should the named executor, or a stranger, become by intermeddling an executor de son tort.)425 While the executor cannot obtain a decree before probate, this is not because his or her title depends on the grant of probate — it is, rather, confirmed by the grant — but because the production of probate is the only way in which his or title can be proved.426 However, in New South Wales the cases support the proposition that the position of executors, for this purpose, assimilates to that of administrators. What led New South Wales judges to so conclude is s 44(1) of the Probate and Administration Act 1898 (NSW), which has been judicially described as ‘a statutory enactment of the doctrine of relation back’,427 and reads as follows: Upon the grant of probate of the will or administration of the estate of any person … all real and personal estate which any such person dies seised or possessed of or entitled to in New South Wales, shall as from the death of such person pass to and become vested in the executor to whom probate has been granted or administrator for all the person’s estate and interest therein in the manner following, that is to say: (a) On testacy in the executor or administrator with the

[page 382] will annexed. (b) On intestacy in the administrator. (c) On partial intestacy in the executor or administrator with the will annexed.

According to Yeldham J in Marshall v D G Sundin & Co Pty Ltd,428 whose decision Young J later described as ‘undoubtedly correct’,429 s 44(1), in tandem with s 61 pursuant to which the deceased’s estate vests in the NSW Trustee (equivalent to the Public Trustee elsewhere) pending representation, evinces a statutory intention to treat executors and administrators consistently. Accordingly, as in the case of an administrator, proceedings commenced by the named executor before the grant of probate are a nullity, which is not cured by the statutory relation back found in s 44(1). It follows that prior to probate an executor can legitimately commence proceedings only with the authority, and in the name of, the NSW Trustee.430 11.80 As statute in the territories and Western Australia contains provisions equivalent to the New South Wales ss 44(1)431 and 6 1 432 — which cover both executors and administrators — there are grounds to conclude that the law in these jurisdictions should be the same.433 Yet in Western Australia there is authority to the effect that the statutory assimilation of executors and administrators for this purpose has the opposite effect, namely that ‘relation back’ applies to validate suits commenced by both putative executors and administrators.434 In the remaining jurisdictions, where the probate statutes have no s 44(1) equivalent or restrict their s 61 equivalent to intestacy,435 the historical dichotomy between executors and administrators arguably remains for this purpose, so that executors’ pre-probate actions are not nullities.436

Impact of grant of representation Vesting of property ‘relates back’ to death 11.81 The probate statutes in the territories, New South Wales, Victoria and Western Australia state that on the grant of probate or administration the deceased’s property (that remains unadministered at the date of the grant) passes to and becomes vested in the nominated executor(s) or appointed administrator(s), as the case may be.437 Other than in Victoria, it adds that all

real estate so vesting that the deceased held in trust or by way of mortgage vests in the personal representative subject to the trusts and equities affecting the estate.438 The vesting is expressed, with the exception of the Australian Capital Territory, to occur ‘as from the death’ of the deceased. It ‘relates back’, therefore, to that time. [page 383] As the Queensland legislation vests the deceased’s property in the appointed executor(s) as from the date of the deceased’s death,439 there is no need for a ‘relation back’ in the case of executors. But as administrators are appointed by the court, and derive their title from the court’s order, the title of an administrator is stated to ‘relate back to’, and is ‘deemed to have arisen upon’, the deceased’s death as if there had been no interval of time between the death and the appointment.440 To avoid doubt, the legislation prescribes for relation back — to the date of the deceased’s death — vis-à-vis the powers of an administrator.441 11.82 The ‘relation back’ serves, it has been said, to furnish personal representatives ‘with a means of remedying injury done to the deceased’s property between death and grant’, thereby enabling them to recover against those who have wrongfully dealt with the deceased’s estate in that interval.442 As explained by Parke B in the context of administrators:443 It is clear that the title of an administrator, though it does not exist until the grant of administration, relates back to the time of the death of the intestate; and that he may recover against a wrong doer who has seized or converted the goods of the intestate after his death, in an action of trespass or trover … The reason for this relation … is, that otherwise there would be no remedy for the wrong done. The relation being established for the benefit of the intestate’s estate, against a wrong doer, we do not see why it should not be equally available to enable the administrator to obtain the benefit of a contract intermediately made by suing the contracting party; and cases might be put in which the right to sue on the contract would be more beneficial to the estate than the right to recover the value of the goods themselves.

Implicit in the above is the notion that it is only in cases where the act is for the benefit of the estate that the relation back exists, ‘by virtue of which relation the administrator is enabled to recover against such persons as have interfered with the estate, and thereby to prevent it from being prejudiced and

despoiled’.444 There is nothing in the doctrine whereby an act done by a person who later becomes administrator to the prejudice of the estate is made good by the subsequent administration. ‘Relation back’ may also serve to validate dealings with the property by an executor before the grant, which prior thereto would be ineffectual rather than void.445 But it does not function to validate as competent an action that was incompetent when it was instituted. So in Byers v Overton Investments Pty Ltd,446 where the Full Federal Court had found that the executor lacked standing to commence proceedings on behalf of the estate before being granted probate, it concluded that the grant of probate did not, via the retrospectivity inherent in the ‘relation back’ period, cure the defect in the executor’s title for this purpose. Nor can it be used to invalidate what the Public Trustee has, within the scope of its power, done as title-holder before representation was granted.447 [page 384]

How title is taken 11.83 It is established that executors, in the course of executorship, take full448 ownership (plenum dominium) of the testator’s estate. Full ownership — wherein there is no need to distinguish between legal and equitable interests449 — is essential to carry out the core functions of executorship: to get in the assets of the testator, pay expenses and liabilities of the testator, and then to distribute what remains in accordance with the will. This reflects the representative capacity of the executor; he or she in effect stands in the testator’s shoes450 to effect the testator’s instructions. But this ownership is not uncircumscribed; the general law and statute heavily circumscribe it.451 As to the former, the strictest duty imposed by law — fiduciary duty — lies upon executors vis-à-vis the property of the testator.452 By distributing the estate, the executor thereby relinquishes ownership of the relevant property. If, whether by virtue of the terms of the will or for some other reason, the executor continues to hold some or all of the estate upon completion of executorial functions, that property is held as trustee.453 By

definition, trusteeship involves duality of ownership, and so at that time only legal ownership of the relevant property remains in the trustee, equitable (or beneficial) ownership vesting in the intended beneficiaries of the estate. During the executorial stage, those beneficiaries — whilst having an expectation of a distribution of their share of the estate, and an attendant entitlement to enforce its proper administration — lack any ownership or proprietary interest in the estate.454 Although the case law most commonly phrases the foregoing principles by reference to executors, where an administrator is appointed title is taken in the same manner as an executor, except to the extent, if any, that the court order granting administration limits the administrator’s title, whether temporally or otherwise.

Devolution in the event of simultaneous deaths Presumption of survivorship 11.84 As the death of a legatee before that of the testator dictates that the legacy in question lapses (unless the terms of the will make it clear that the legacy is to go to the legatee’s beneficiaries),455 establishing the date of death for both is critical to the destination of the intended legacy. Commonly this is not an issue, because the evidence will reveal whether or not the legatee has survived the testator. But in circumstances where the respective deaths are [page 385] simultaneous, or their order otherwise uncertain on the evidence, applying the above rules proves problematic. The common law recognised no presumption, rebuttable or otherwise, to assist,456 and so to the extent that the legacies lapse, they fall for distribution under the intestacy rules.457 This prompted the introduction of a statutory presumption, albeit not uniformly, except in South Australia, where the common law continues to apply458 (except in the event that an intestate and his or her spouse die within 28 days of each other).459

Position in New South Wales, Queensland, Tasmania and Victoria 11.85 In New South Wales, Queensland, Tasmania and Victoria statute prescribes that, where two or more persons die in circumstances rendering it uncertain who survived whom, the deaths are, for all purposes affecting the title to property but ‘subject to any order of the court’, presumed to have occurred in order of seniority, so that the younger is deemed to have survived the elder.460 Harvey CJ in Eq in Re Plaister explained the backdrop to, and rationale for, this provision in the following terms:461 I think that [the section] was meant to fill up a gap which existed previously in the law, where the court was unable by a balance of testimony satisfactory to itself to come to a conclusion as to the order of the deaths. It had then to declare that the persons in question were dead, but there was no evidence to show which survived the other. That was a common form of declaration in the case of death of commorientes462 where foreign massacres, shipwrecks, fires, and such like tragedies had occurred, where there was no possible means of ascertaining which of two or more persons died before others. Under those circumstances the law laid it down that there was no presumption of survivorship, and the only thing the court could do was declare that there was no evidence to show which person died before the other. Under those circumstances a person whose title to land depended on establishing that his predecessor died before another person, a victim of the same tragedy, failed; the onus was on him to prove the death, and he was unable to do so. There was no presumption upon which he could fall back.

The legislation, therefore, being designed to fill that gap and supply that presumption, does not retract from the court its power to decide, if the evidence permits, the order of death. So if there is evidence upon which the court may make such a determination463 — which is purely [page 386] a question of fact, and thus not assisted by other cases in which judges have determined the issue464 — no role remains for the presumption.465 11.86 Assuming that the dearth of evidence as to survivorship triggers the presumption, the question remains as to the impact, if any, of the words ‘subject to any order of the court’. Prima facie these suggest some residual discretion to alter the distribution of property inconsistently with the presumption. Yet the curial trend has largely eschewed such an interpretation,

even though the proffered alternative has hardly proven convincing on a process of statutory construction. That alternative appears in the judgment of Bennett J in Re Lindop:466 The effect of the words [’subject to any order of the court’] is to enable the court, although the circumstances in which the persons have died are such as to make it uncertain which survived, to receive evidence upon the question, and, if the evidence is such as to displace the statutory presumption, to act upon that evidence. I do not think these words give … a discretion to the court to disregard the statutory presumption if the court came to the conclusion that it would be unfair or unjust to act upon it.

Although other judges have conceded that this construction practically renders redundant the opening words of the relevant section,467 which show clearly that the presumption is to apply in cases of uncertainty, this has not proven any catalyst for change. Australian case authority, to this end, has disclaimed any discretion in the court to apply or avoid the presumption according to its notions of fairness, justice or other deserving circumstance.468 If correct, the words add nothing to the section, and so could justifiably be omitted. 11.87 There is case law supporting the application of the above provisions where one of the deaths is presumed at common law469 — by the operation of the 7-year presumption470 — but the more compelling view, and one supported by more recent authority, suggests the contrary. Otherwise, it has been observed, the relevant section ‘will always lead to the result that the younger survived the older so that in a case in which the precise date of death of the older is known, the younger will be presumed to survive even if he has not been heard of for 50 years before the date of the death of the older‘.471 This ‘surprising’ consequence means that, another judge has said, ‘[i]t is unlikely that the legislature intended the section to determine arbitrarily the order of death of persons whose deaths may have been separated by many years’.472 The section is confined, therefore, to where the circumstances of the two deaths, whether occurring together or separately, produce the uncertainty; it does not apply if the circumstances of one death are unknown.473 [page 387]

But the foregoing must be read in conjunction with the statutory extension of the doctrine of lapse in these jurisdictions,474 under which, subject to contrary intention in the will, a disposition to a person who does not survive the testator for 30 days is treated as if the beneficiary predeceased the testator and thus lapses.475 It is in any case not unusual for wills to make specific provision of this kind, although not always adopting a 30 day time frame, an historical legacy of ensuring that death duties are not payable more than once on family assets where the deaths are temporally aligned.476 Stemming from this statutory extension, the seniority rule that forms the basis of the foregoing presumption cannot overcome the 30 day rule, and the disposition will therefore lapse unless there is evidence that the (younger) beneficiary survived the testator by 30 days. As a result, the concerns raised in the previous paragraph would arguably not materialise and, in practice, the law in these jurisdictions differs little from that adopted in the remaining jurisdictions, discussed below.

Position in the Territories and Western Australia 11.88 In Western Australia, where two or more persons have died at the same time, or in circumstances that raise reasonable doubt477 as to which survived the other(s), ‘the property of each person so dying shall devolve and if he left a will it shall take effect, unless a contrary intention is shown by the will, as if he had survived the other person or persons so dying and had died immediately afterwards’.478 The Northern Territory adopts a similar statutory schema, albeit extended to where one or more of those persons are presumed dead.479 The same result effectively ensues in the Australian Capital Territory, albeit via different language in its probate statute and not subject to the terms of the will.480 The above provisions aim to avoid the potentially arbitrary results emanating from the statutory presumption in the other jurisdictions.481 They essentially dictate that, in circumstances involving simultaneous deaths, the (deceased) beneficiary is taken to have predeceased the testator, and so the relevant disposition lapses. The property the subject of that disposition falls into the testator’s residuary estate (unless the will provides for a substitutional disposition) or, in the event of intestacy, to those who take on intestacy. This, it has been said, is more likely to be an outcome aligned with the deceased’s

intention than one grounded in the presumption adopted elsewhere.482 The legislation adds that any property owned jointly and exclusively by two or more of the persons dying either simultaneously or otherwise in an order that proves uncertain, other than property so owned by them as trustees, devolves as if it were owned by them when they died [page 388] as tenants-in-common in equal shares.483 It therefore ousts the effect of any applicable joint tenancy, so that ‘the estate of the younger joint tenant does not receive the windfall that results … where the issue of survivorship is resolved by the presumption that the younger of the deceased persons is deemed to have survived the older’.484

Grant to Multiple Persons Taking of title where multiple personal representatives 11.89 As a testator can appoint co-executors, it is necessary to determine how co-executors are to take the testator’s property. In a leading judgment, Isaacs J branded the executorial office ‘one and indivisible’,485 from which the law, to enable them to perform their executorial duties, gives executors a joint interest in all the testator’s property. It is not a joint tenancy in the accepted sense — though statute speaks of the property devolving on a joint tenancy in some jurisdictions486 — but one of a ‘special kind’ because not only are all the executors seised of the entire interest, but so is each one.487 Higgins J in the same case saw the position of executors as ‘very exceptional’, as ‘[t]hey have a joint and entire interest in the property’.488 Where the court makes an appointment of more than one administrator for an estate, the property in question devolves on them as joint tenants.489

Decision-making by multiple personal representatives

— acting severally Common law position — personal representative can act severally 11.90 Reference to co-executors being regarded as one person does not mean that all must unite in performing each act, but that ‘their official personality is not divisible or distinguishable, and that they have individually and collectively all the rights and duties of the office they undertake’.490 Stemming from this ‘peculiar nature’491 of the executorial office is the longstanding principle that ‘one of several [executors] can act separately from the others, and [page 389] bind them and the estate in so doing’.492 The same applies as a matter of logic in relation to joint administrators.493 Indeed, Isaacs J in 1910 uttered the following:494 [T]he matter stands that the power of each executor to sell, and otherwise to represent the testator in the performance of executorial duties, has been for centuries a recognized incident of the office and accompaniment of the duties which the law requires of an executor, and which necessarily are to be performed in relation to third persons.

The terms of the testator’s will, or those of the court order for administration, can oust the common law, and require joint action.495

Qualification to common law by equity 11.91 Reflecting the ongoing nature of trusteeship as compared to executorship, as well as the difference between trustee and executorial functions, the general law instead requires trustees to act unanimously.496 As executors may become trustees once their executorial role has been completed,497 the distinction between the roles feeds into questions going to joint as opposed to unilateral action and its consequences.498 In any event, though, that the law empowered one of several executors to contract in relation to the testator’s property did not mean that equity followed suit. Ostensibly concerned by potential unfairness for an estate to lose its property

because one executor has signed a contract with which another does not agree,499 equity would not as a matter of course lend its assistance to the enforcement of such a contract by way of a remedy. This does not undermine the validity of the contract,500 but leaves the parties to their remedies at law. It has been judicially observed, to this end, that:501 … where one only of several executors has dealt with property of the estate, even though by an actual assignment, a court of equity will not as of course lend its aid for the effectuation of the transaction: it will insist upon being satisfied as to the propriety of the terms, and especially the price, before granting relief as against the estate and thus depriving the beneficiaries of the property.

[page 390] For example, in Sneesby v Thorne502 Wood VC dismissed a suit for specific performance of a contract entered into by one of two executors for the sale of a leasehold property belonging to the estate, on the ground that as against a person selling in a fiduciary character specific performance will not be decreed of a contract of which the beneficiaries may be entitled to complain. His Lordship is reported as saying:503 … unless the court sees clearly that the contract is necessary and beneficial there is great difficulty in enforcing it against a person holding such a position as, independently of his character of executor, his conduct is likely to be called in question by his [beneficiaries]. The principle of the court is that the [beneficiaries] must not be injured, and that the party contracting must be left to his remedy at law.

Similarly, case authority supports the proposition that a court will refuse specific performance of a contract that statute requires to be signed by the party charged504 unless, in the case of joint executors, all have joined in the signature.505 And if equitable assistance is required to perfect an assignment by a single executor, there is no assurance that equity will lend that assistance without the concurrence of the remaining executors.506

Ouster or qualification of common law by statute 11.92 The common law position is ostensibly ousted by statute in Queensland, which requires that both executors and administrators exercise their powers jointly.507 What underscored this statutory intrusion was a

concern that third parties would be ‘rightly reluctant to deal with only one executor where probate is granted to more than one executor’.508 Also, the validity of a personal representative contracting without joining other personal representatives may be impinged by statute. In the territories and New South Wales, for instance, the statutory powers vested in personal representatives to sell, mortgage and lease the real estate of the deceased509 are expressed to be exercisable by some or only one of several executors or administrators with the leave of the court ‘and not otherwise’.510 Consistent with the statutory language, provisions of this kind have been interpreted as ousting the common law.511 So if, for instance, there is a duty to sell to which a power to postpone sale attaches, [page 391] but the executors disagree on whether or not to postpone sale, prima facie the property must be sold512 unless the court otherwise orders.513 In South Australia, if the Public Trustee is appointed executor (or trustee) jointly with another person, statute vests in the Public Trustee sole authority to receive and hold money on account of the estate (or trust), to give valid receipts for money paid to the estate (or trust) and to make payments from the estate (or trust).514

Ouster of general law for retainer of solicitor 11.93 It may be that the retainer of a solicitor by one of several executors will not, absent express authority, bind the others, a point arising from occasions where separate solicitors have been engaged on behalf of different coexecutors. The issue in these circumstances, though, is commonly whether each solicitor’s charges should be met from the estate, and this certainly cannot be assumed. Outside of unusual circumstances, out of which the court is satisfied that separate representation is justified, it is unlikely that two (or more) sets of costs will be ordered from the estate. Modern costs practice militates against such an outcome.515 Indeed, it has been judicially remarked that ‘to acknowledge this occasional past practice [of separate representation] is

not in any way to encourage it’.516

Revocation of Grant Jurisdiction to revoke grant 11.94 The court’s jurisdiction to grant representation conferred by statute has a parallel in its jurisdiction to revoke the grant. In some states the jurisdiction to revoke is found in the same provision as the jurisdiction to grant;517 in others it is located in a dedicated provision.518 Whatever its source, though, the ground(s) for the exercise of the jurisdiction are left unstated. As the court’s discretion is granted ‘in the broadest of terms’,519 it must exercise its judgment by reference to the facts of each case. It is thus undesirable (and indeed impossible) to attempt to state, in advance, any general principles as to the way particular circumstances should affect the exercise of that discretion.520 11.95 Yet as the statutory jurisdiction in this context reflects the court’s inherent jurisdiction521 — the court has an inherent jurisdiction to revoke a grant because the grant itself is an order of the court522 — the principles underscoring the exercise of the inherent [page 392] jurisdiction are instructive and applicable. Aside from a grant being revoked following the discovery of an error in the grant or evidence coming to light revealing that the grant should not have been made — say, discovery of a (later) will,523 or of a subsequent marriage that revoked the will in question, usually independent of the conduct of the appointed executor or administrator — the inherent jurisdiction is informed by ‘the due and proper administration of the estate and the interests of the parties beneficially entitled thereto’.524 So in a leading case, In the Goods of Loveday,525 the grant of administration to a person unable to be found was revoked. And in In the Goods of Galbraith526 Karminski J made an order revoking probate in the face of ‘the clearest possible evidence

that both the surviving executors are men of very advanced age and suffering from such a degree of physical and mental infirmity as makes a continuance of their duties impossible’. Loveday was followed in the leading Australian decision of Bates v Messner,527 involving an executor who subsequent to being granted probate had for 6 years done practically nothing to properly administer the estate. The executor’s whereabouts became unknown, and evidence of misconduct on his behalf was found. Evidence also suggested that the executor’s personal circumstances militated against any future performance of his executorial duties. In ordering the revocation of probate, Asprey JA made the following observations reflective of the breadth of the inherent jurisdiction:528 [T]he essential basis of the exercise of the court’s inherent jurisdiction to revoke a grant of probate is that emphasised by Jeune P [in In the Goods of Loveday], namely, that the real object which the court must always keep in view is the due and proper administration of the estate in the interests of the parties beneficially entitled thereto on the part of the person to whom and by whose oath as to the faithful performance of his duties the court has been induced to entrust the office of executor. The terms used in some of the previously decided cases with relation to the circumstances which have given rise to the exercise of the jurisdiction of revocation, such as ‘abortive’, ‘inefficient’, ‘useless’ or ‘ineffectual’, are simply descriptive of a situation in which the court has been persuaded to the view that its grant, which was predicated on the oath of the executor named in the will that ‘he will pay all the just debts and legacies of the said deceased so far as the estate of the said deceased will extend and the law shall bind him, and that he will otherwise well and faithfully administer the said estate according to law; and that he will render a just and true account of his

[page 393] administration’ has been circumvented by a breach of that oath which is in effect an undertaking to the court making the grant. I shall make no attempt to define all circumstances which may attract the exercise of the court’s jurisdiction, but where circumstances clearly appear to have arisen after a grant of probate which impel the court to the firm conclusion that the due and proper administration of an estate has either been put in jeopardy or has been prevented either by reason of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill health, or by virtue of the proof of other matters which establish that the executor is not a fit and proper person to carry out the duties which he has sworn to the court that he will perform, the court may exercise its inherent jurisdiction to revoke the grant.

The same court endorsed these observations some 30 years later in

Mavrideros v Mack,529 where Sheller JA, with whom Priestley and Beazley JJA agreed, directed the relevant inquiry to: … whether the due and proper administration of an estate had either been put in jeopardy or had been prevented either by reasons of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill health, or by virtue of the proof of other matters which established that the executor was not a fit and proper person to carry out the duties he had sworn to perform.

Sheller JA declared that the trial judge had applied too rigid a test by saying that one had to get close to the position of the grant being useless. More recently, Gray J in Re Estate of Stuart (deceased)530 applied these principles in revoking probate where breakdown in the relationship between co-executors had frustrated the due administration of the estate. Where the threat to the due and proper administration of the estate arises out of deliberate defaults by the appointed executor or administrator, the case for revocation is clearer again. In Lubis v Walters531 Angel J revoked the grant of administration to a person who, having immediately paid to himself the cash assets of the estate in ignorance of his statutory duties and without reference to the interests of creditors or others, committed ‘a serious dereliction of duty’ demonstrating unfitness for office. Combined with the manifest antagonism he displayed towards the successful plaintiff, Angel J found it proper that the future administration of the estate be placed in the hands of a neutral party, the Public Trustee.532 Repeated defaults, even if sought to be explained on the basis of a misunderstanding of the relevant duties, are unlikely to shield against revocation of the grant, as they, at best, cast doubt on fitness to act, and more likely evince an unwillingness to properly administer the estate.533 11.96 An application to revoke a grant represents the most extreme reaction to a failure to perform representative duties. In some circumstances, it may be more suitable to request a dilatory personal representative to pass accounts,534 in an attempt to spur action, and if necessary seek an order of the court to enforce this. A breach of an order to file accounts, like a breach of any [page 394] other court order, is amenable to the personal representative being committed

for contempt.535 As a strategy, however, it may prove both time-consuming and ultimately non-productive. Revocation may prove, in the case of an utterly intractable personal representative, the most suitable option to this end.536 Attendant to an order revoking probate or administration,537 the court will order the delivery up of the original grant.538 11.97 It remains, in any case, within the discretion of the court what order should be made, taking into account all of the circumstances. If, for instance, despite an executor’s delay and defaults, there remains little to do in completing the administration of the estate, the court may consider it time and cost ineffective at this stage to appoint a new administrator.539 Of course, in no sense does allowing the executor to remain in office absolve him or her from liability for any defaults, to date or in the final administration of the estate.

Weight accorded to executor chosen by testator in application to revoke probate Court reticent to interfere without good reason 11.98 Where a court is requested to revoke probate, a weighty consideration against acceding to the application is that the testator has nominated the executor to perform executorial functions. For a court to lightly interfere with the testator’s appointee would impinge upon freedom of testation540 and so executorship is not revoked, it is said, ‘without good reason’.541 As explained by Jerrard JA in Baldwin v Greenland:542 It is always appropriate and necessary for a court asked to exercise it to have regard to the testator’s wishes as to the identity of an executor or trustee. The testator’s choice may be based on loyalty, or on respect, or on necessity, or on the profession of the chosen person, or on other matters the testator knew about the chosen person; the reason for the choice might never be clear to a court. The overriding assumption must be that the testator thought the person chosen was worthy of trust, even when well aware when making a choice of existing hostility (from family members) toward the chosen executor or trustee, or of other grounds for doubt about the wisdom of the choice.

For these reasons, other judges have remarked that the power to revoke probate is ‘a delicate one which must be exercised cautiously’, to be confined to ‘exceptional circumstances’,543 which target breaches of duty or other

misconduct.544 But faced with an application to remove [page 395] an administrator, the court can, it is said, ‘to some degree be more ready to act upon its own view as to the appropriate person to be administrator’.545 The court, after all, appointed the administrator, not the testator.

Where potential for conflict between interest and duty 11.99 It follows that a (potential for) conflict between duty as an executor and interest as a beneficiary or debtor of the estate is ordinarily insufficient on its own to justify revocation of a grant to that executor, particularly if the testator appointed the executor knowing of (the potential for) that conflict.546 It is hardly uncommon, after all, for a testator to wish to benefit, as a beneficiary of the estate, a person he or she trusts to effect his or her testamentary wishes. It cannot be assumed, moreover, that the testator’s appointment of a debtor of the estate as executor necessarily creates a conflict between interest and duty. The position may be otherwise where a debtorexecutor disputes the debt after the testator’s death. In Rutter v McCusker547 the executrix refused to acknowledge as an asset of the estate a debt recorded in the accounts of a company for which she, as sole director, had primary responsibility, but instead asserted an uncorroborated claim against the estate. Against a backdrop of animosity between her and the beneficiaries, Palmer J found this sufficient to place the estate’s administration in jeopardy, and so revoked the grant of probate.548 Similarly, in Bupa Care Services NZ Ltd v GilUbrand,549 where Heath J removed an executor who disputed a debt owed by the estate where this conflicted with his own financial interests, the concern was that the executor was not acting ‘independently and impartially’, and was not being ‘even-handed’ in the administration. 11.100 Also, there are occasions where the evidence reveals that the testator may not have been wholly apprised of the nature and extent of the conflict (capable of being) generated by the appointment550 or, otherwise, whether as a result of declining mental capacity or another reason, the testator was not

positioned to make an informed judgment regarding an appointee’s current suitability to act.551 Ultimately, where an appointee prejudices the due and proper administration of the estate, the court may conclude that, despite the testator’s reasons for making the appointment, no testator would countenance an ongoing misadministration. In this event, good reason may exist to interfere with the testator’s choice.

Presence of friction between executor and other interested persons 11.101 The weight given to the testator’s choice of executor likewise dictates that friction between the executor and others interested in the estate is also usually no reason, by itself, to revoke the grant to that executor.552 The law again assumes that the testator was aware [page 396] of potential frictions where family members are involved,553 and thus made a conscious informed choice in appointing his or her executor. Were tension, friction or dissension to trigger revocation of probate as a matter of course, it would encourage disputes over the administration of deceased estates, and give persons not charged with administering an estate undue influence in its administration. Where, however, the nature or level of friction is such as to seriously hinder effective performance of executorial functions, there may be grounds for curial interference.554 In instances of this kind, other elements may also surface, such as insurmountable conflicts of interest, as appears from Rutter v McCusker, mentioned above.

Standing to apply for revocation of grant 11.102 With limited exception, the statutory provisions that, in line with the inherent jurisdiction, confer jurisdiction to revoke probate or administration do not specifically address the question of standing. Only in New South Wales, the Northern Territory and Western Australia is standing addressed, targeting a person ‘interested in the estate’;555 even then, the New

South Wales and Western Australian provisions are expressed to apply only to the revocation of administration. The foregoing should not be interpreted to mean that, outside this, any person has standing to make the relevant application. The statutory reference to a person ‘interested in the estate’ — a financial interest in the usual case556 — reflects the general law,557 and its characterisation of probate litigation is ‘interest litigation’,558 such that a court may deny standing to a person lacking that ‘interest’. [page 397] Commonly there is no challenge to the standing of a person seeking the revocation of a grant, as only those with an interest in the estate are sufficiently motivated to complain about its due and proper administration. Yet circumstances can arise where standing is denied, typically to persons who are neither beneficiaries of the probated will nor of earlier wills,559 even if there is some familial connection with the deceased. As to the latter, in Williams v Williams560 the first applicant, who was the deceased’s spouse but not a beneficiary under the will, was held not to have standing to apply for the removal of the executors. That she had the custody of the deceased’s son, who was the sole beneficiary of the estate, and was an applicant for family provision, did not alter this outcome. As the beneficiary, however, the son clearly had standing, albeit via his litigation guardian by virtue of infancy.

Revocation of grant if person living at date of grant 11.103 The probate legislation in the territories, New South Wales and Victoria contains a provision dedicated to the revocation of a grant of representation vis-à-vis the estate of a person whom it proves was in fact living at the time representation was granted.561 The application for revocation can be made by the person in question or, if he or she has since died, by any person entitled to apply for a grant or who is interested in the estate.562 Other than in Victoria, the legislation adds that the court may at any time make the orders it considers appropriate for protecting the estate, including an injunction or the appointment of a receiver.563

As the grant of representation presupposes the death of the person whose estate is the subject of the grant, it stands to reason that the court’s inherent jurisdiction to revoke representation (and its statutory equivalent or replication)564 encompasses the above scenario. The absence of equivalent provision in other jurisdictions is, therefore, no constraint on the court revoking a grant in these circumstances.

Revocation of grant as a vehicle for removing personal representative No inherent power to order removal (?) 11.104 It appears that, unless statute makes alternative provision, a personal representative can be removed only via the revocation of the grant and the making of a fresh grant. The court arguably has no inherent power to simply order the removal of a personal representative.565 The position is modified in the territories and Victoria by the probate legislation, which empowers the court to order the discharge or removal of a personal representative in specified [page 398] circumstances and, if it thinks fit,566 appoint a new administrator in his or her place.567 These circumstances are where a personal representative: • remains out of the jurisdiction for more than 2 years; • wishes to be discharged from the office; or • after the grant of representation or appointment,568 refuses or is unfit to act in the office, or is incapable of acting therein. ‘Unfitness’, in the immediately preceding dot point, is not confined to disqualification for an adjudication of bankruptcy or conviction for an offence569 but instead, it is said, ‘evidences an intention, in relation to the areas of misconduct and neglect of duty, that the jurisdiction of the court to remove trustees should be given to the court with respect to executors and

administrators’.570 ‘Unfitness’ can, to this end, be demonstrated by an incapacity or unwillingness to perform the duties of the executorial office within a reasonable time.571 Yet as the term bears its dictionary meaning, it can encompass all matters that affect the capacity to perform the tasks expected of a personal representative.572 It can, for instance, comprehend a situation where an executor has a conflict between duty and interest in performing executorial duties,573 [page 399] bearing in mind that, as in the case law on revocation of probate,574 not every conflict justifies removing an executor.575 11.105 The territory and Victorian provisions add that, upon the appointment of a new administrator, the property and rights vested in, and the liabilities properly incurred in the due administration of the estate by, the former personal representative vest in and transfer to the new administrator, who has the same privileges, rights, powers, duties, discretions and liabilities as if he or she had originally been granted representation.576 The former personal representative is not liable for an act done or omission made after the date of the order.577 The court rules in Queensland also contain a non-exhaustive list of instances where a personal representative may be discharged — where he or she is no longer capable of acting, cannot be found, had received the grant due to a mistake, or wishes to retire — but explicitly effect this via a revocation, adding that upon a revocation the personal representative must bring the original grant into the registry as soon as practicable.578 Hence in Queensland, and arguably the remaining jurisdictions, removal of a personal representative, unless he or she has become a trustee of the estate,579 requires revocation of probate or administration. This ostensibly stems from the absence at general law of a right to renounce an executorship once probate has been granted, and the need for a consequential order to file accounts, and the transfer of property from the old to the new executor.580 Under this approach, the fresh grant is complete on its face, and need not be read in tandem with the order discharging or removing the personal

representative.581 There is, accordingly, New South Wales, Queensland, South Australian and Western Australian case law that aligns removing a personal representative with revocation of the grant, and the making of a fresh grant.582 Yet this appears to be more a result of practice than jurisdiction, in the face of judges who maintain that there is inherent jurisdiction in the court to order removal of a personal representative [page 400] in place of revoking the grant.583 What underscores the practice here was explained by Gray J as follows:584 Executors take their oaths on the basis that the estate would be administered by all the executors to whom probate is granted. The taking of the oath is a serious undertaking and executors are officers of the court. Even in circumstances where the remaining executors consent to the removal of one or more executors, in my view, it is important that they take a new oath affirming that they will dutifully administer the estate notwithstanding the change in circumstances. Issuing a fresh grant would also be easier than amending the existing grant, which would involve the grant being manually amended. Making a fresh grant obviates the need to make separate vesting orders for the property of the estate, and provides the remaining executors with a new set of documents which they can use to administer the estate without the difficulties that may arise when engaging with organisations which may not accept on its face a copy of a manually amended document … If other States or countries do not recognise the validity of an amended grant of probate, this would put the executors at a costly inconvenience when attempting to transact business in other jurisdictions. Further, the cost of amending the grant is likely to be just as expensive, if not more expensive, than the cost of revoking the grant and issuing a fresh grant.

Distinction between revocation and removal ultimately procedural 11.106 The matter, in any case, is ultimately procedural. Whether an executor or administrator is simply removed, or loses office via revocation of the grant, does not ultimately impact on the principles upon which the power to order the removal or revocation is exercised or the consequences of the court’s order (assuming the court’s power, in each case, to vest the relevant property in the new and/or continuing personal representative(s)). It follows that the principles discussed above as to the revocation of representation585 apply whether the order is one for removal or for revocation. Indeed, judges not uncommonly refer to the removal in terms practically synonymous with revocation.586 The main qualification to this is statute in the territories and

Victoria, mentioned above, which provides for the removal of personal representatives in circumstances that are arguably broader than within the inherent jurisdiction to revoke representation. [page 401]

Removal once personal representative becomes trustee 11.107 Once an executor or administrator becomes a trustee of the estate, and grounds surface for his or her replacement, to the extent of his or her trusteeship587 the issue is no longer one of revocation, but of the potential exercise of the court’s jurisdiction, whether inherent or statutory, to remove a trustee.588 Be that as it may, the principles on which the court acts when a claim is made for revocation of a grant of probate or administration generally resemble those relating to removal of trustees. The ‘due and proper administration’ inquiry at the core of revoking probate or administration589 differs little from the inquiry into the welfare of the beneficiaries that informs courts’ removal of trustees.590 Both are ‘difficult and unusual exercises’, a New South Wales judge has said, but added that practical experience reveals that seeking to revoke a grant is a task more challenging than seeking the removal of a trustee.591

Effect of revocation of grant Protections for personal representative(s) and third parties 11.108 The revocation of a grant does not dictate that every incident of the revoked representation evaporates. In all jurisdictions the probate legislation makes provision for aspects of continuity where this is necessary for the protection of the (former) personal representative(s) and third parties. The territories, New South Wales and Victoria follow a similar statutory schema in this regard. The personal representative is not liable in relation to property he or she disposed of under the grant in good faith592 before its revocation.593 Consistent with the foregoing, the statutes add

[page 402] that, of its own force, the revocation does not invalidate a disposal of property made by or to the personal representative before the revocation.594 The court is empowered to make vesting orders it considers appropriate.595 A personal representative must, post-revocation, account to the court for property received by, or vested in, him or her in that capacity, and the court may make orders it considers appropriate relating to the disposal of any property remaining in his or her hands.596 11.109 In these jurisdictions, and in Queensland, Tasmania and Western Australia, the legislation adds that a person making or permitting a payment or disposition in good faith under a grant may be indemnified and protected in so doing, notwithstanding anything affecting the validity of the grant.597 And in Queensland, Tasmania, Victoria and Western Australia it declares that payments and dispositions made in good faith to the personal representative before the grant is revoked are a valid discharge to the payer/disponer,598 being a reflection of the general law as stated in 1789 in Alien v Dundas.599 In that case a debtor who made payment to an executor appointed under a forged will was held entitled to a valid discharge. The rationale is that, as a grant of probate is a judicial act, it is ‘conclusive till it be repealed’,600 so that ‘the law … will never compel any person to pay a sum of money a second time, which he has once paid under the sanction of a court’.601 The legislation adds that a personal representative who has acted under a grant that is later revoked may be indemnified in respect of his or her payments and dispositions as if no revocation had occurred.602 11.110 While only the Queensland, Tasmanian and Victorian statutes further declare as valid all dispositions of interests in property by a personal representative to a purchaser in good faith despite a subsequent revocation of the grant,603 this likewise reflects the general law. The leading case is Hewson v Shelley,604 wherein the English Court of Appeal held that a person who purchased property, without notice, from an administrator before revocation of the grant upon discovery of the deceased’s will secured good title to the property. Were the law otherwise, Cozens-Hardy MR reasoned, ‘no person could safely deal with, or accept, a title from an administrator, for it is

impossible to prove that there may not be a will’.605 An Australian [page 403] judge, in endorsing Hewson v Shelley, stated the law in terms that ‘the mesne acts of a former personal representative … are not rendered null and void by a subsequent revocation, but that such revocation only becomes effective as and from the date of the grant thereof’.606 11.111 Consequent upon Queensland Law Reform Commission recommendations,607 the Queensland legislation contains two unique provisions, giving an innocent personal representative greater protection but at the same time vesting in a replacement personal representative scope to recover illegitimate distributions. The first immunises from liability a personal representative who, in good faith and without negligence, has sought and obtained a grant for any legacy paid or asset distributed in reliance on the grant despite its subsequent revocation.608 But the second entitles a replacement personal representative to recover any legacy paid or asset distributed (or its value) in reliance on the revoked grant from its recipient609 except in defined circumstances.610 The latter arise where the recipient, having received the payment or distribution in good faith, has so altered his or her position in reliance on the propriety of the payment or distribution that ‘it would be inequitable to order the repayment of the legacy or the return of the asset or its value’. In this event, the court may make such order as it considers just in all the circumstances. The South Australian legislation similarly protects a personal representative from the consequences of any act preceding the revocation or rescission of the representation done in good faith and in reliance thereon.611 It likewise protects a person who deals with an asset of a deceased estate, acting in good faith and in reliance on the representation, from any personal liability that would stem from the representation proving to have been invalid, revoked or rescinded.612 But the foregoing is expressed not to affect any rights that may lie — by beneficiaries entitled under the subsequent grant — against a person to whom property has been invalidly transferred, or to whom a payment has been

invalidly made, by a personal representative.613

Revocation not to prejudice actions or suits 11.112 Statute in all jurisdictions makes provision, to a greater or lesser degree, to preserve any proceeding in the event of the revocation of probate or administration. In the territories, New South Wales, Queensland, South Australia and Western Australia it states that if, while any proceeding is pending in a court by or against any personal representative lawfully acting in that capacity, the grant of representation is rescinded, the court may order that the proceeding be continued by or against the new personal representative in like way, as if the proceeding had been originally begun by or against the new representative, but subject to any conditions and variations the court directs.614 The same applies in Tasmania and Victoria, albeit limited to where a temporary administration has been granted.615 [page 404]

Administration Without Grant of Representation Small estates administered by Public Trustee without grant Australian Capital Territory and Tasmania 11.113 Statute in the Australian Capital Territory and Tasmania entitles the Public Trustee to administer the estate of a deceased person if satisfied that its net value does not exceed $30,000 ($20,000 in Tasmania)616 and no application has been made for a grant of representation, upon giving notice of its intention to do so by advertisement or otherwise.617 In so doing, the Public Trustee may perform the usual functions of a personal representative, and deal with the property of the estate as if it had received a grant of representation.618 In the Australian Capital Territory, if the gross value of a deceased estate does not, in the Public Trustee’s opinion, exceed $150,000, and no grant of representation has been made, the Public Trustee may, if it is entitled to apply

for an order to collect and administer the estate of the person,619 file in the court an election620 to administer the estate.621 On filing of an election the estate vests in the Public Trustee, who then has the same functions as if the Public Trustee had been granted an order to collect and administer the estate.622 Notice of each election must be published as prescribed, which is conclusive evidence of the Public Trustee’s entitlement to administer the estate.623 There is provision, if it transpires that the estate’s value exceeds $150,000 or a (later) will is found, for the Public Trustee to file a notice to this effect, pursuant to which the earlier election is taken to have been revoked.624 In Tasmania, if in dealing with an estate pursuant to the foregoing the Public Trustee discovers that its net value remaining to be administered exceeds $35,000, the Public Trustee must discontinue the administration, but may proceed pursuant to statutory powers pending the grant of representation625 in respect of that part of the estate.626

New South Wales, Northern Territory and Queensland 11.114 Statute envisages that the NSW Trustee may deal with an estate in New South Wales, the net value of which does not exceed $20,000,627 as if it had been granted representation if the NSW Trustee has no knowledge of any application having been lodged for representation of the estate and has given notice of its intention to act.628 In this event, the NSW Trustee is entitled to the same commission as if it had been granted probate or administration of the estate.629 Equivalent provision is made in the Northern Territory probate legislation vis-à-vis a ‘professional personal representative’ — namely the Public Trustee, a trustee company or a legal practitioner630 — subject to the same $75,000 limit631 and requiring the prescribed notice.632 [page 405] A professional personal representative in this position is taken to be the personal representative of the estate as if he or she had been granted representation.633 If after giving notice the professional personal representative

discovers that the net value of the estate exceeds $75,000 but is less than $150,000,634 he or she must file in the court a memorandum stating the value of the property, but may continue to administer the estate without applying for a grant of representation.635 But if that value exceeds $150,000, the professional personal representative must apply for a grant of representation.636 In Queensland, if the value of the assets of a deceased estate coming under the control of the Public Trustee in respect of which the Public Trustee would be entitled to file an election637 does not, apart from the value of any interest in land, exceed $75,000, the Public Trustee may apply those assets in or towards the payment of any claim of which it has knowledge or to the persons entitled to them, without filing an election to administer. Nor is it necessary in this instance for the Public Trustee to cause advertisements to be published calling on creditors to prove their debts.638

Election by Public Trustee or trustee company to administer small estates without grant 11.115 Statute other than in the Australian Capital Territory639 and South Australia entitles the Public Trustee (or equivalent) or a trustee company, via what has been described as an ‘administrative process’,640 to elect to administer certain small estates without applying for a grant of probate or administration. The National Committee for Uniform Succession Laws, branding elections to administer as ‘a cheaper and more convenient method for the party filing the election to obtain the necessary authority to administer an estate having a relatively low value’,641 has recommended their retention in model legislation. 11.116 In New South Wales the NSW Trustee or a trustee company may file an election642 to administer a deceased estate in the registry of the Supreme Court, instead of applying for probate or administration, if:643 • its estimate of the gross value644 of the estate in New South Wales is less than $100,000;645 • no person has obtained representation of the estate; and • it is entitled to obtain representation.

[page 406] Equivalent provision exists in the Northern Territory probate legislation, but vesting in a ‘professional personal representative’ — being the Public Trustee, a trustee company or a legal practitioner646 — and subject to an $150,000 threshold.647 In Queensland, statute provides likewise, albeit subject to a $150,000 threshold for an election by the Public Trustee648 but a $100,000 threshold for elections by trustee companies.649 Corresponding provisions in Tasmania, Victoria and Western Australia set the same threshold for both Public Trustee and trustee company elections, albeit at different amounts.650 Excepting in Victoria, the person or entity filing the election is, upon its filing, taken or deemed to have been appointed as the executor or administrator of the estate.651 In Victoria, State Trustees must file the deceased’s will, if one exists, with the registrar of probates as soon as practicable after giving notice of its intention to administer the estate, and is deemed to have been granted probate of the will or administration of the estate at the expiry of 14 days after the publication of the notice.652 If in the course of administering the estate, its value is found to exceed 120 per cent of the relevant threshold, State Trustees must notify the registrar of probates and apply for a grant of probate or administration of the estate.653 11.117 In New South Wales the NSW Trustee or a trustee company may similarly file an election654 to administer an unadministered estate, instead of taking out administration de bonis non,655 if:656 • the executor or administrator of the estate has died and no other person has taken out administration de bonis non in respect of the estate; • part of the estate remains unadministered; • the gross value of the unadministered part of the estate in New South Wales is less than $100,000;657 and • it is entitled to take out administration de bonis non. [page 407]

Equivalent provision again exists in the Northern Territory, vis-à-vis ‘professional personal representatives’ and subject to an $85,000 threshold,658 and in Queensland, except subject to a $150,000 limit and only vis-à-vis the Public Trustee.659 And again, the person or entity filing the election is taken to have been appointed as the administrator de bonis non of the estate (or the unadministered part thereof).660 No counterpart in this context exists in Tasmania, Victoria and Western Australia. In New South Wales, the Northern Territory, Queensland, Tasmania and Western Australia, if the appointee becomes aware that the gross value of the (unadministered) estate exceeds the amount prescribed,661 it must file a notice to that effect in the court registry, and not continue to administer the estate without obtaining representation in the ordinary manner.662 In Queensland, Tasmania and Western Australia the legislation also makes provision for revocation of an election where its foundation — be it a valid or effective will, an intestacy or some reason going to the election itself — is undermined.663 11.118 The Public Trustee Act 1941 (WA) adds that, where a grant of representation has been made in respect of a deceased estate but the grantees have died, if the gross value of the part of the estate left unadministered does not exceed $10,000, and no person has taken out letters of administration de bonis non in respect of the estate, the Public Trustee may file in the office of the court an election in writing setting forth the above matters and electing to administer the property left unadministered.664 On filing of the election, the Public Trustee is deemed to be administrator of the estate left unadministered in all respects as if letters of administration de bonis non had been regularly granted to the Public Trustee.665

Payment of certain money in deceased estates without grant 11.119 In South Australia, Victoria and Western Australia the probate legislation makes provision for the payment out of certain small sum(s) of money, in South Australia and Western Australia confined to certain payors, in advance of a grant of representation.666 This aims to ‘facilitate the payment of particular amounts that may be owing to a deceased estate’

[page 408] by offering protection to the payor, and thus avoiding the need for the payor to require an indemnity from the payee.667 The relatively low monetary limits imposed, coupled with the restricted list of payors who can benefit, led the National Committee for Uniform Succession Laws to recommend a loosening of each.668 As a result of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic), as from 1 January 2015, the category of payors in Victoria now extends beyond merely former employers.669 The legislation entitles any person who holds money or personal property for a deceased person not exceeding the threshold amount670 to pay or transfer the money or property, without requiring the production of a grant of representation, to a prescribed payee — being the surviving spouse or domestic partner of the deceased, a child of the deceased or any other person — if the payee has legal capacity and appears to be entitled to the money or property.671 Any payment or transfer so made in good faith is treated as ‘a complete discharge of all liability in relation to the person who is paying or transferring the money or personal property’.672 The same outcome ensues upon a receipt signed by a person aged 16 years and over who received the said payment or transfer.673 Nothing in the foregoing, however, affects or prejudices the rights of any person having a claim to or against a deceased person’s estate to enforce a remedy against a person to whom this payment or transfer was made.674 11.120 The South Australian statute allows the State Treasurer to pay a sum not exceeding $2000, which was owed to the deceased in the capacity as a government employee,675 or that was held by a government hospital676 on his or her behalf while a patient, to his or her surviving spouse677 or domestic partner678 and/or to any other person the Treasurer deems just to pay.679 No person has a claim against the Crown in respect of any such payment, but this does not relieve a person receiving the payment from any liability to account for or apply that money in accordance with law.680 11.121 Again in South Australia, if on the death of a depositor the moneys standing to his or her credit on the books of a financial institution do not exceed $2000, and probate of the will or letters of administration of the estate

is or are not produced to the manager of the financial institution within 3 months of the death, the manager may pay the money to the spouse or domestic partner of the depositor upon proof of death and the payee’s identity.681 Such a payment is valid, and an effectual release to the financial institution against all [page 409] claims and demands on its account.682 But this does not protect the payee from remedies that may be exercised against him or her by the next of kin, beneficiaries or personal representatives.683 Similar provision is made in the Western Australian legislation. The monetary limit, while originally low, has since been raised to $50,000,684 and the time frame is 1 month from the death in circumstances where the financial institution has no notice in writing of any will and of intention to prove it, or of an intention to apply for administration.685 The payment can be made to meet funeral expenses, any balance going to the deceased’s (de facto) spouse, parent or child.

Administration of real property without a grant — Queensland 11.122 Other than in Queensland, statute makes a grant of representation a prerequisite to the registration, and thus transfer, of a deceased’s landowner’s interest in land in his or her personal representative.686 Queensland is unique in providing for the registration in this context without a corresponding grant of representation. Aside from where representation has been granted to the personal representative, it allows the registrar to register the land (or interest therein) in the name of the person as personal representative if:687 • in the event that the deceased died intestate — letters of administration have not been granted in Queensland within 6 months of the death, the gross value of the Queensland estate at the date of death did not exceed $300,000, and the registrar forms the opinion that the person would

succeed in an application for a grant of representation; or • in the event that the deceased died testate — the person is (or is entitled to be) the deceased’s personal representative, or the registrar considers that he or she would succeed in an application for a grant of representation. The legislation adds that a person who is beneficially entitled under a will to land (or an interest therein) of a deceased registered proprietor may apply to the registrar to be registered as proprietor of the lot. Assuming that the person satisfies the registrar that he or she has that beneficial entitlement, the registrar may accede to the application upon written consent being given by the person who is (or is entitled to be) the deceased’s personal representative or by a person who, in the registrar’s opinion, would succeed in an application for a grant of representation.688

1. 2. 3.

4. 5.

6. 7. 8.

As to the concept of ‘probate’, see 11.29–11.36. As to the concept of ‘administration’, see 11.37–11.67. Other than in Tasmania, the relevant provision is found in the probate legislation: ACT s 9(1); NSW s 40; NT s 14(1); Qld s 6(1) (and see also Qld s 6(4), which adds that, without restricting the generality of s 6(1), the court has jurisdiction to make, for the more convenient administration of any property comprised in the estate of a deceased person, any order which it has jurisdiction to make in relation to the administration of trust property under the provisions of the Trusts Act 1973 (Qld), which has been held to attract the power to appoint an executor or administrator: Williams v Williams [2005] 1 Qd R 105; [2004] QSC 269; BC200405523 at [13] per Wilson J); SA s 5; Supreme Court Civil Procedure Act 1932 (Tas) s 6(5); Vic s 6; WA s 6. ACT s 9(2); NT s 14(2); Qld s 6(2). See further 22.4. NSW s 33 (see Firns v Firns [2000] NSWSC 396; BC200002395 at [12] where Young J noted that ‘[t]he way in which the Act has been construed over the years is that unless there has been a statutory taking away of jurisdiction the court plainly has power to grant administration whenever it considers it appropriate to do so’, citing Hamilton v Hamilton (1913) 30 WN (NSW) 46); SA s 5; Supreme Court Act 1935 (SA) s 18; Supreme Court Civil Procedure Act 1932 (Tas) s 6(5); WA s 4; Supreme Court Act 1935 (WA) s 18. The probate legislation in South Australia makes provision for the appointment of certain local courts to be district registries of the Supreme Court for the purpose of granting representation in common form of estates with a value not exceeding $2000, which grant has the same effect as a grant by the Supreme Court: SA s 9(1)–(3), (7). There is scope for a judge of the latter court, on the application of any person interested, to order that proceedings in a district registry be removed into the Supreme Court (SA s 10), as well as scope for a district registrar to apply to the Supreme Court or its registrar for directions (SA ss 11, 12). ACT CPR r 6250(2)(o); NSW RSC Pt 78 r 9; NT s 17(1); Qld s 69; Qld UCPR r 601; SA s 7A(1); Tas s 67, Sch III cl 9; Vic s 12(1), (1A); WA s 5; WA 1967 r 4(1). As to grants in ‘common form’, see 11.30. As to caveats lodged against a deceased estate, see 11.24–11.27.

9. 10. 11. 12.

13. 14. 15. 16. 17.

18. 19.

20. 21. 22. 23. 24.

NT s 17(2); Qld UCPR r 601(1); SA s 8; Vic s 12(2); WA 1967 r 4(1). Though this is made explicit only in Queensland, South Australia and Western Australia (see Qld UCPR r 601(2); SA s 8; WA 1967 r 4(4)), the superintendence of the court over registrars dictates that the same applies elsewhere. In New South Wales, $15,000; in the Northern Territory, $20,000 (see Administration and Probate Regulations 1983 (NT) reg 2A(1)); in Western Australia, $10,000 (WA s 57(2)). In New South Wales, for the purpose of receiving applications for probate or administration, a person may be appointed, as provided by the rules, in any town beyond 48 kilometres from Sydney, where the Local Court sits, to act as district agent for the registrar: NSW s 98(1) (but the rules currently make no provision in this regard). The same applies in Western Australia, except that the appointee as district agent is a magistrate of the Magistrates Court, and the distance prescription is 80 kilometres from Perth: WA s 54(1). In each case, the district agent must forthwith transmit to the registrar all affidavits, documents, and fees received by the district agent, and upon receipt of the probate or letters of administration must deliver the same to the applicant upon demand: NSW s 103; WA s 57(1). NSW s 101; NT s 106; WA s 57. NSW s 104(1), (2); NT s 108(1), (2); WA s 57(2). NSW s 106; NT s 110; WA s 60. Tourton v Flower (1735) 3 P Wms 369; 24 ER 1105 (administration); Allen v Dundas (1789) 3 Tr 125 at 129–30; 100 ER 490 at 492 per Buller J (probate). In the Will of Podger (deceased) [1957] VR 275 at 278 per O’Bryan J; Re Grey Smith (deceased) [1978] VR 596 at 601 per Murphy J; Re Estate Kouvakas [2014] NSWSC 786; BC201405528 at [271] per Lindsay J; Robinson v Jones (No 3) [2015] VSC 508; BC201511306 at [29] per McMillan J; Williams v Schwarzback (No 2) [2016] WASC 43 at [15] per Chaney J. In the Goods of Watts (deceased) (1837) 1 Curt 594 at 595; 163 ER 208 at 208 per Sir Herbert Jenner. Spoehr v Health Services Charitable Gifts Board (2014) 121 SASR 174; [2014] SASC 171; BC201409412 at [38] per Gray J; Docking v Schwarzkopf [2015] SASC 18; BC201500547 at [8] per Stanley J; Re Estate of Leona Johnson (deceased) (2015) 122 SASR 190; [2015] SASC 51; BC201502034 at [11] per Gray J. See also Boyce v Bunce [2015] NSWSC 1924; BC201512485 at [60] per Lindsay J (‘There is a strong public interest element in probate proceedings that precludes their characterisation as purely adversarial in character’). The proceeding nonetheless is not shorn of its adversarial nature, as the court does not thereby conduct some independent inquiry that obliges it to go into evidence that the parties have not adduced: Re Levy (deceased) (No 2) [1957] VR 662 at 665 per Sholl J; Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul (2009) 4 ASTLR 16; [2009] WASC 75; BC200902050 at [37] per Simmonds J. Phillpot v Olney [2004] NSWSC 592; BC200404327 at [7] per White J. See 11.113–11.118. See 11.119–11.121. See 11.122. Death may, though, be provable by another means: see, for example, In the Goods of Main (1858) 1 Sw & Tr 11; 164 ER 606 (where the court ruled that payment by underwriters on the loss of a vessel upon which M sailed ‘was very strong evidence in support of the motion’ that M had died); Re Ryan [1990] 3 NZLR 91 (where R, a fisherman who was lost at sea, was held to be dead in view of evidence from a fellow crewman that R had drifted from a buoy supporting them and ‘appeared dead’; Tipping J remarked that ‘[i]f a person is able to speak from direct knowledge of circumstances which, albeit not proving death with medical certainty, nevertheless enable an inference that death has in fact occurred to be drawn beyond any possible doubt then there is no need for the filing of

25.

26.

27.

28.

29.

30.

an application for leave to presume death because, death thereby having been directly proved, its presumption is unnecessary’: at 96). Although the court is not precluded from making a finding as to the date of death: see, for example, Riggs v Registrar of Births Deaths and Marriages [2010] QSC 481; BC201010010. Cf Presumption of Death Act 2013 (UK) s 2(3), (4) (which makes provision for the court, in making a declaration of death relating to a missing person, to presume the person’s date of death where that date is uncertain or where it is presumed that the person has died). Re Application for Grant of Presumption of Death (2008) 1 ASTLR 406; [2008] WASC 49; BC200802290 at [23] per Beech J. To this end, the application is ultimately for what is known as a ‘Benjamin order’, after the decision of Joyce J in Re Benjamin [1902] 1 Ch 723, which has been described as ‘a well established practice and authority for the Court, where the facts permit, without making any declaration as to the date of death, to make an order that the executor be at liberty to distribute the estate on the basis that the missing man is dead’: Re Watkinson (deceased) [1952] VLR 123 at 126 per Gavan Duffy J. While a Benjamin order protects the personal representatives, it does not protect those who take a distribution by virtue of the order, who may be subject to equitable claims if there is evidence forthcoming to the effect that the missing person did in fact survive, or left surviving issue: Re Gess [1942] Ch 37 at 39 per Morton J. (1937) 59 CLR 395 at 405; BC3800002. See also Chard v Chard [1956] P 259 at 272 per Sachs J (‘Where as regards “AB” there is no acceptable affirmative evidence that he was alive at some time during a continuous period of seven years or more, then if it can be proved first that there are persons who would be likely to have heard of him over that period, secondly that those persons have not heard of him, and thirdly that all due inquiries have been made appropriate to the circumstances, “AB” will be presumed to have died at some time within that period’); Halbert v Mynar [1981] 2 NSWLR 659 at 663–4 per Waddell J; Estate of Howard (1996) 39 NSWLR 409 at 413–15; BC9601897 per Cohen J; Re Curran [2010] VSC 455; BC201007603 at [8], [9] per Ferguson J; G H Treitel, ‘The Presumption of Death’ (1954) 17 Mod L Rev 530. The presumption is reiterated by statute in the Northern Territory (Law of Property Act 2000 (NT) s 215) and has in England recently been addressed by a dedicated statute (Presumption of Death Act 2013 (UK), pursuant to which those with standing can apply for a declaration that a missing person is to be presumed dead (s 1), which the court may issue if satisfied that the missing person is dead or has not been known to be alive for a period of at least 7 years (s 2)). An equivalent presumption, albeit adopting a 5-year time frame, has statutory currency in the United States: Uniform Probate Code, §1–107(5) (‘An individual … who is absent for a continuous period of 5 years, during which he [or she] has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead’). Cf D Stone, ‘The Presumption of Death: A Redundant Concept?’ (1981) 44 Mod L Rev 516 (who argues that, because, inter alia, modern judges are willing to draw inferences that a person is alive or dead when he or she simply disappears, there is no need for a ‘presumption’ of death). (2009) 263 LSJS 458; [2009] SASC 176; BC200905084 at [8], referring to the practice noted by Legoe J in Re Westover (1987) 139 LSJS 115 at 117–18. See, for example, Bayes-Walker v Bayes-Walker [2011] WTLR 1143; [2010] EWHC 3142 (Ch) (where the evidence before the court consisted of statements from the most important of those persons who would be likely to have heard from the missing person). Cf the remarks of A H Simpson CJ in Re Wallace (1908) 25 WN (NSW) 161 at 161 that the presumption should be ‘less readily applied’ in Australia than in England, given Australia’s (then) population of ‘a migratory or shifting character’. Whether or not these remarks accurately represented Australian society at the time, they certainly have no role in modern Australian society,

31. 32. 33.

34.

35.

36.

37. 38. 39. 40. 41. 42. 43. 44.

a point not lost on Cohen J in Estate of Howard (1996) 39 NSWLR 409 at 415; BC9601897. Interestingly, there are remarks in older English cases also calling for a retreat from the presumption. For instance, in Watson v England (1844) 14 Sim 28 at 29; 60 ER 266 at 267 Shadwell VC opined that ‘[t]he old law relating to the presumption of death is daily becoming more and more untenable’, as ‘the facility which travelling by steam affords’ meant that ‘a person may now be transported in a very short space of time from this country to the back woods of America, or to some other remote region where he may be never heard of again’. Again, these remarks carry far less weight in the modern environment. J Daly, ‘Proof of Death in a Global Age’ (Jan/Feb 2016) 90 LIJ 35 at 37–8. See, for example, Mackay v Mackay (1901) 18 WN (NSW) 266. See, for example, Re Purton [1943] QWN 33 (where the pilot of a flying boat fleeing the impending Japanese invasion never arrived at his destination and no trace was ever found); Re Parker [1995] 2 Qd R 617 (where a father and son fishing from rocks were washed into the sea in 1992, and then became separated but only the son made it to shore); Re Bennett (2006) 1 ASTLR 199; [2006] QSC 250; BC200607069 (where a professional diver, while working deep underwater on a salvage dive, got into difficulties and signalled to a diving companion that he intended to surface, but his body was never found, nor was he seen or heard from again); Estate of Sceney (2013) 11 ASTLR 1; [2013] NTSC 82; BC201316004 (presumption of death in the face of a helicopter accident that was unsurvivable); Maynard v Estate of Maynard [2015] QSC 144; BC201504572 (where Atkinson J granted leave to swear death of the applicant’s husband, who had gone missing on a surfing trip to Indonesia); Maisel v National Mutual Life Association of Australasia Ltd [2016] QSC 166; BC201606277 (where Henry J granted leave to swear to the death of the applicant’s husband, who had been the pilot of a helicopter that crashed into the sea, where his remains had not been located despite extensive and well-publicised searches). See, for example, In the Goods of Matthews [1898] P 17 (where a man, then aged 73, disappeared from his home and was not afterwards heard of, notwithstanding a search in the neighbourhood without result, advertisements published in five newspapers, and the local police contacted, leave to swear to death was granted even though only 3 years had elapsed since his disappearance). See, for example, Estate of Howard (1996) 39 NSWLR 409; BC9601897 (38 years); Re Estate of Hills (2009) 263 LSJS 458; [2009] SASC 176; BC200905084 (13 years); Lashko v Lashko [2011] WASC 214; BC201107395 (43 years). See, for example, Nolan v Nolan (2011) 6 ASTLR 80; [2011] WASC 224; BC201106769 at [35], [36] per E M Heenan J (who was not convinced that the fact that a 15-year lack of contact from a family member, who had moved to the United Kingdom over 40 years earlier, was sufficient to raise the presumption that the person had died). Lashko v Lashko [2011] WASC 214; BC201107395 at [9] per E M Heenan J. ACT s 9A(1); NSW s 40A(1); NT s 15(1); Vic s 7(1). ACT s 9A(2); NSW s 40A(1); NT s 15(2); Vic s 7(1), (2). ACT s 9B(1)(a)–(c), (e); NSW s 40B(1)–(4); NT s 16(1)(a)–(c), (e); Vic s 8(a)–(c). As to caveats in this context, see 11.24–11.27. ACT s 9B(3); NT s 16(3). NSW s 40B(4); Vic s 8(d). ACT s 9B(1)(d); NSW s 40B(3); NT s 16(1)(d) (which adds that, if a dispute arises as to the value of any such property, the court may, upon application by any person affected by the undertaking or security, make such order in respect of the property as it thinks fit, or make such order for the termination or modification of the obligations under the undertaking or security as it thinks fit: NT s 16(6), (7)); Vic s 8(b).

45. 46. 47. 48. 49. 50. 51. 52.

53. 54. 55. 56.

57. 58. 59. 60.

61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72.

Qld s 6; SA s 5; Supreme Court Civil Procedure Act 1932 (Tas) s 6(5); WA s 6. Ex parte Keegan (1907) 7 SR (NSW) 565 at 566 per Darley CJ, with whom Cohen and Sly JJ concurred. See, for example, Re Weeks [2016] WASC 25; BC201600197 (referring to WA 1967 r 34). Re Smith (1975) 6 ALR 123 at 124 per Forster J. (1902) 87 LT 747 at 748. Re Fulton [1994] 2 Qd R 505 at 506 per Ryan J. [2001] TASSC 7; BC200100228. NSW Trustee and Guardian Act 2009 (NSW) s 54(1). Equivalent provision was originally made by way of amendment to the Protected Estate Act 1983 (NSW) by the Protected Estate Amendment (Missing Persons) Act 2004 (NSW), with effect from 17 December 2004, which inserted s 21C into the 1983 Act. The latter translated in almost identical form as s 54 of the 2009 Act. NSW Trustee and Guardian Act 2009 (NSW) s 54(3) (preceded by: the spouse or de facto partner of the person; a relative of the person; a business partner or employee of the person; the AttorneyGeneral; and the NSW Trustee). NSW Trustee and Guardian Act 2009 (NSW) s 54(2). As this requirement mirrors that at common law under the presumption of death (see 11.7–11.9), the case law on due inquiries in the common law context is equally applicable under the statutory provision. This requirement also approximates that of the common law presumption of death (see 11.7–11.9), subject to the usual caveat, and one that applies also at common law, that ‘on some occasions people quite deliberately make themselves disappear, sometimes with the intention of starting a new life’, such that ‘giving effect to the policy and purpose of the legislation seems to me to require that the enquiry … proceed on the assumption that the person in question is not making himself or herself disappear deliberately’: Gell v Gell (2005) 63 NSWLR 547; [2005] NSWSC 566; BC200504126 at [13] per Campbell J. B Debus, Attorney-General of New South Wales, Parliamentary Debates, Legislative Assembly, 20 October 2004, at 11683 (paragraph break omitted). Gell v Gell (2005) 63 NSWLR 547; [2005] NSWSC 566; BC200504126 at [20] per Campbell J. Gell v Gell (2005) 63 NSWLR 547; [2005] NSWSC 566; BC200504126 at [5] per Campbell J. Gell v Gell (2005) 63 NSWLR 547; [2005] NSWSC 566; BC200504126 at [5] per Campbell J (adding that, accordingly, in cases of particular doubt or difficulty the court has power to arrange for someone to represent the missing person for the purposes of the litigation). The material in this paragraph derives from the judgment of Campbell J in Gell v Gell (2005) 63 NSWLR 547; [2005] NSWSC 566; BC200504126 at [6]. Gell v Gell (2005) 63 NSWLR 547; [2005] NSWSC 566; BC200504126 at [7] per Campbell J. As to the requisite formalities for wills, see 4.1–4.20. Barry v Butlin (1838) 2 Moore 480 at 482–3, 485; 12 ER 1089 at 1090–1 per Parke B. Banks v Goodfellow (1870) LR 5 QB 549 at 565 per Cockburn CJ. See further 2.2–2.20. As to what is meant by ‘suspicious circumstances’ in this context, see 2.29–2.38. Nock v Austin (1918) 25 CLR 519 at 528; BC1800001 per Isaacs J. Indeed, doing so will likely result in the executor being mulcted in costs: see 23.17. Di Cecco v Contini [2004] VSC 211; BC200403486 at [35] per Whelan J. The relevant parameters in this context are discussed at 2.2–2.20. Worth v Clasohm (1952) 86 CLR 439 at 453; BC5200490 per Dixon CJ, Webb and Kitto JJ. As to the suspicious circumstances doctrine, see generally 2.29–2.38. See, for example, Fulton v Andrew (1875) LR 7 HL 448 at 472 per Lord Hatherley; Re Nickson

73. 74. 75. 76. 77.

78.

79.

80. 81.

82.

83. 84. 85. 86.

(deceased) [1916] VLR 274 at 281 per A’Beckett J. See 2.30, 2.31. See 2.32–2.35. (1875) LR 7 HL 448 at 470. As to the statutory reflection of the inherent jurisdiction, see 11.1. The jurisdiction is confined to the probate (public) copy of the will, and does not apply to the will itself: Re Maxwell (deceased) (1929) 140 LT 471 (where Hill J remarked that ‘I should hesitate a long time before altering a man’s will or document, though I might do so in relation to publication of probate’: at 471); Re Estate of Ward (2006) 244 LSJS 326; [2006] SASC 161; BC200604138 at [20] per Gray J (‘an order excluding the offending words does not expunge the words from the will itself but from probate and the copy of the will kept in the Probate Registry. Consequently, a court can always look at the original will if further proceedings should arise’). In the Estate of White [1914] P 153 at 154 per Bargrave Deane J; In the Will of O’Reilly [1927] VLR 533 at 535 per Lowe J; In the Goods of Bowker [1932] P 93; Re N [1950] VLR 139 at 145–6 per Sholl J; In the Estate of Hawke (deceased) (1973) 6 SASR 278 at 279 per Mitchell J; In the Estate of Adler (1989) 155 LSJS 53 at 55–7 per Legoe J; Re Estate of Enjakovic (deceased) (2008) 100 SASR 486; [2008] SASC 72; BC200801570 at [16] per Gray J (who went on to define the words ‘scandalous’, ‘offensive’ and ‘defamatory’ in this context: at [18]–[21]). In the Goods of Honywood (1871) LR 2 P & D 251 at 252 per Lord Penzance (describing it as ‘a power to be exercised with great moderation, and in cases of a definite character’); In the Will of J P (deceased) (1922) 39 WN (NSW) 228 at 229 per Owen AJ (speaking in terms of ‘exceptional circumstances’); In the Will of O’Reilly [1927] VLR 533 at 535 per Lowe J. In the Estate of Hall (deceased) [1943] 2 All ER 159 at 160 per Bucknill J. In the Will of J P (deceased) (1922) 39 WN (NSW) 228 at 229 per Owen AJ. See, for example, Marsh v Johnston (1860) 1 Sw & Tr 528; 164 ER 845 (where Sir C Cresswell acceded to a request to except from probate certain expressions in a codicil derogatory to a particular family, even though his Lordship doubted whether the words were of such a character as to warrant the application, upon the consent of counsel for the plaintiffs). See, for example, Re Welsh (deceased) [2014] SASC 13; BC201400613 (where Gray J declined to remove the words ‘and she is a compulsive gambler’ from the copy of the will admitted to probate, reasoning that while those words are not directly dispositive in nature, ‘they do serve an important testamentary purpose’, namely ‘a further explanation as to why the deceased chose not to make a disposition to his wife’: at [32]); Re Estate of Hoffman (deceased) [2016] SASC 110; BC201606191 (where Stanley J found that while describing the testatrix’s daughter as ‘a compulsive liar’ was offensive, libelous, annoying and insulting, and lacked dispositive effect, it nonetheless served a testamentary purpose to explain why she failed to make any provision for her daughter: at [13], [14]). In the Will of J P (deceased) (1922) 39 WN (NSW) 228 at 229 per Owen AJ; In the Estate of Hawke (deceased) (1973) 6 SASR 278 at 279 per Mitchell J. (2008) 100 SASR 486; [2008] SASC 72; BC200801570. Re Estate of Enjakovic (deceased) (2008) 100 SASR 486; [2008] SASC 72; BC200801570 at [26]. See, for example, In the Estate of Hall (deceased) [1943] 2 All ER 159; Hamilton v Nelson [2012] SASC 219; BC201209653 (where the will required the plaintiffs to read the deceased’s diaries before being eligible to receive their share of jewellery of the estate, Gray J noted that ‘[w]hile the diaries themselves may contain material that is offensive or scandalous, this [was] not a matter apparent from the terms of the will’, and so no justification for its removal existed: at [40]).

87. 88. 89.

[2011] SASC 116; BC201105261. Re Estate of Brummitt (deceased) [2011] SASC 116; BC201105261 at [36]. Re Estate of Brummitt (deceased) [2011] SASC 116; BC201105261 at [37]. See also In the Will of O’Reilly [1927] VLR 533 (where Lowe J refused to omit the words ‘I make no provision for my wife [B] on account of her intemperate habits and other misconduct’). 90. Re Estate of Brummitt (deceased) [2011] SASC 116; BC201105261 at [40]. 91. [1950] VLR 139. 92. Re N [1950] VLR 139 at 148 per Sholl J; Re Estate of Brummitt (deceased) [2011] SASC 116; BC201105261 at [41] per Gray J. See also In the Estate of Hawke (deceased) (1973) 6 SASR 278 (where Mitchell J refused to remove words relating to the testator’s reason for making a fresh will — namely that his wife had left him for another man — but removed the ensuing words directed to how she treated that other man, as the latter were not ‘material to the testator’s disposition of his property’: at 279); Fast v Rockman [2013] VSC 18; BC201300346 (where Habersberger J removed words that were derogatory of, and amounted to personal attacks on, the deceased’s wife, as they had the capacity to cause outrage upon the wife’s propriety, as well as to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person who read them, and cause right thinking members of the society to lower their estimation of the wife: at [139], [140]). 93. Re Crawford (deceased) [2014] 3 NZLR 38; [2014] NZHC 609 at [12] per Mackenzie J (thus ensuring, inter alia, the ability to inspect the signatures and appreciate the condition of the will. As to the formality requirements for wills, see 4.1–4.20. 94. As to the need to establish testamentary capacity, see 2.2–2.20. 95. The parameters of this ‘presumption’ are catalogued in Re Bladen [1952] VLR 82 at 84–7 per Sholl J. See further Williams, Mortimer and Sunnucks, pp 168–72. 96. The maxim — its full form being omnia praesumuntur solemniter esse acta — essentially means that all things are presumed to be done solemnly, that is, rightly or regularly. 97. In the Will of Moriarty (deceased) [1956] VLR 400 at 401 per Dean J (who was ‘very loth to displace the presumption of [due] execution, when the will appears on its face to be properly executed, in the absence of strong evidence’: at 403). See also Lloyd v Roberts (1858) 12 Moo PC 158 at 165; 14 ER 871 at 873–4 per Dr Lushington (where the presumption was strengthened because the testator was a solicitor of considerable experience); Harris v Knight (1890) 15 PD 170 at 179 per Lindley LJ; In the Will of Monteith (1896) 22 VLR 60 at 61 per Hodges J; Townsend v Moore [1905] P 66 at 80 per Vaughan Williams LJ (‘if a document purports to be testamentary, and it is executed in accordance with the provisions of the Wills Act, primâ facie that document ought to be admitted to probate’); Re White (deceased) [1951] NZLR 393 at 409 per O’Leary CJ. 98. Re Thomson [2015] VSC 370; BC201507162 at [13] per McMillan J. 99. See, for example, In the Estate of Bercovitz (deceased) [1962] 1 All ER 552 (where the irregularity was so substantial as to deny the presumption any role); Re Grosert [1985] 1 Qd R 513 (where Vasta J refused to apply the presumption to a will in circumstances where positive evidence existed that the formality requirements had not been fulfilled); Burnside v Mulgrew [2007] NSWSC 550; BC200705870 (where Brereton J refused to apply the presumption in the context of a dispute as to whether a testator’s signature on a will was genuine, in circumstances where forgery was alleged). 100. See, for example, In the Estate of Hall (2011) 120 SASR 1; [2011] SASC 117; BC201105262 (where evidence from the deceased’s solicitor, being one of the attesting witnesses, that execution of the will complied with the formality requirements, coupled with the fact that the copy will had been retained on file, led Gray J to accept that the copy reflected the original: at [16]); Re Estate of Dodds (deceased) [2013] SASC 56; BC201309687 (evidence from an attesting witness that the copy was the

101. 102. 103.

104.

105. 106.

107. 108. 109. 110.

111.

same as the original, coupled with the fact that the copy was kept in a tin box, and persons prejudiced by the application were sui juris and consented to the grant, led Gray J to grant probate to the copy: at [25]–[27]). Whiteley v Clune (No 2) (SC(NSW), Powell J, 13 May 1993, unreported) BC9301902 at 26. Welch v Phillips (1836) 1 Moo PCC 299 at 302; 12 ER 828 at 829. See also Allan v Morrison [1900] AC 604 at 610–11 per Lord Davey (PC). See, for example, McCauley v McCauley (1910) 10 CLR 434; BC1000028 (where, inter alia, the deceased’s various recent expressions of an intention to benefit the respondent, coupled with evidence of the deceased’s careless demeanour, led the High Court to find against a presumption of revocation of the testator’s will: see at 442 per Griffith CJ, at 448–9 per O’Connor J, at 454–5 per Isaacs J); Re Estate of Groll [2009] NTSC 14; BC200902243 (where the copy of the will was properly prepared by a solicitor and duly executed, and the evidence indicated that the original will was sent to the deceased and that she believed that the original will was still in her briefcase; although the copy found was in fact a photocopy, having regard to the terms of the will, Mildren J (at [15]) found it highly unlikely that the deceased would have destroyed the will with the intention of revoking it, because the consequence of so doing would be to eliminate the other gifts contained in the will and leave her sons as the only beneficiaries on an intestacy; this drew support from the evidence that the deceased told the applicants of the gift of her jewellery to her cousin); Re Will of Warren (deceased) [2014] QSC 101; BC201404404 (where, as the original will kept in the custody of the deceased’s solicitors had gone missing, there was no evidence of intention to revoke, and no presumption). See, for example, In the Estate of Hall (2011) 120 SASR 1; [2011] SASC 117; BC201105262 (where Gray J, finding no evidence of an intention to revoke, saw it as more likely that the will went missing by accident than been destroyed: at [31]). Re Riordan (deceased) [1961] VR 271 at 283 per Sholl J. Re Estate of Marcos (deceased) [2001] VSC 69; BC200101096 at [23] per Beach J. See, for example, Re Estate of Gerard (deceased) (2007) 1 ASTLR 206; [2007] SASC 362; BC200708630 (where the evidence that rebutted the presumption of revocation was that the deceaed’s will — a copy of which was sought to be admitted to probate — was a careful and complete disposition of his property, with which the deceased was happy and did not envisage a need to revise: at [43] per Gray J); Re Estate of Koutsouliotas (deceased) [2011] SASC 196; BC201108677 (where the fact that, inter alia, the copies of the will put forward evinced a careful and complete disposition of his property led Gray J to conclude that, if the presumption arose, it had been rebutted: at [45]–[63]). (1876) LR 1 PD 154 at 176. Sugden v Lord St Leonards (1876) LR 1 PD 154 at 218. Sugden v Lord St Leonards (1876) LR 1 PD 154 at 219. [2005] TASSC 111; BC200509922 at [35]. See also Re Estate of Kolecki (deceased) [2011] SASC 158; BC201107498 (presumption rebutted where ‘the deceased had a low level of security over the will’: at [38] per Gray J). See, for example, In the Will of Podger (deceased) [1957] VR 275 at 277–8 per O’Bryan J; Re Estate of Brighty (deceased) [2013] SASC 125; BC201311563 (where the presumption of revocation was rebutted by, inter alia, evidence that, two weeks before his death, the deceased had not yet placed the original will in his safe, which Gray J remarked ‘makes it more likely that the absence of the original will has resulted from the will being misplaced or accidentally thrown out, rather than being intentionally destroyed by the deceased with the intention of revoking the will’: at [18]); Re Moschoudis [2016] VSC 139; BC201602347 at [50] per McMillan J (where evidence of care that the deceased took in retaining various documents and records made it unlikely that the will in question was lost).

112. Cahill v Rhodes [2002] NSWSC 561; BC200203752 at [59] per Campbell J. 113. In the Will of Broomhead [1947] VLR 319 at 320–1 per Herring CJ. See also McCauley v McCauley (1910) 10 CLR 434 at 451, 455; BC1000028 per Isaacs J; In the Will of Podger (deceased) [1957] VR 275 at 276 per O’Bryan J; In the Will of Boyd (deceased) (1959) 59 SR (NSW) 369 at 372–3 per Street CJ (FC); Gordon v Beere [1962] NZLR 257 at 266 per McGregor J; In the Matter of Krawzcuk (deceased) (SC(Vic), Ashley J, 11 December 1997, unreported) BC9707351 at 7. 114. Re Wipperman [1955] P 59 at 65–6 per Pearce J; Re MacDonald [1955] NZLR 614 at 615 per Barrowclough CJ; Gordon v Beere [1962] NZLR 257 at 266–7 per McGregor J; Re Plunkett [1965] VR 118 at 121–3 per Smith J; In the Estate of Yeo (deceased) (1978) 17 SASR 545 at 546 per Jacobs J; In the Estate of Ralston (SC(NSW), Hodgson J, 2 September 1996, unreported) BC9604329; Cahill v Rhodes [2002] NSWSC 561; BC200203752 at [56] per Campbell J; Payten v Perpetual Trustee Co Ltd [2005] NSWSC 345; BC200502126 at [88]–[92] per Austin J. Earlier judicial remarks suggesting that the court must be satisfied of the contents of a missing will beyond reasonable doubt (see, for example, Woodward v Goulstone (1886) 11 App Cas 469 at 475 per Lord Herschell LC; Harris v Knight (1890) 15 PD 170 at 179 per Lindley LJ; McCauley v McCauley (1910) 10 CLR 434 at 443; BC1000028 per O’Connor J) lack currency in modern law. 115. Palmer v Smedley [1974] 1 NZLR 751 at 753 per Mahon J; Curley v Duff (1985) 2 NSWLR 716 at 718–19 per Young J; Cahill v Rhodes [2002] NSWSC 561; BC200203752 at [55] per Campbell J; Proud v Proud [2012] WASC 134; BC201202474 at [83]–[85] per E M Heenan J. 116. Dalton v Dalton (SC(WA), Parker J, 24 September 1997, unreported) BC97004735 at 4. See also Re Estate of Marshall [2015] SASC 61; BC201502890 at [12] per Stanley J. Compare Sugden v Lord St Leonards (1876) LR 1 PD 154 (where the contents of a lost will were found proven by parol evidence) with Ferneley v Napier [2011] WTLR 1303; [2010] EWHC 3345 (Ch) (where the evidence did not discharge the onus of proving those contents). 117. See, for example, In the Goods of Wright [1902] P 21; Re Henderson [1996] 1 Qd R 249; Proud v Proud [2012] WASC 134; BC201202474. 118. See, for example, Koerstz v Norman [2008] NSWSC 133; BC200800915; Re Russell [2009] WASC 233; BC200907550. 119. ACT CPR r 3066(1); NSW s 144(1); NT s 44; Qld UCPR r 624(1); SA s 26(1); Tas PR r 77; Vic s 58; WA s 63(1). A caveat cannot in this context be lodged subsequent to a grant of probate or administration, and if lodged after that time has no effect: In the Will of Clarke (1922) 22 SR (NSW) 228; Re O’Dea [1936] VLR 48; Re Egan (deceased) [1963] VR 318. 120. Re Montalto [2016] VSC 266; BC201603806 at [17] per McMillan J (aff’d Montalto v Sala [2016] VSCA 240; BC201608635). See also Re Estate Kouvakas [2014] NSWSC 786; BC201405528 at [242] per Lindsay J. 121. The South Australian probate legislation simply states that ‘[c]aveats against the grant of probates or administrations may be lodged in the Probate Registry of the court’ (SA s 26(1)), but the absence of any explicit standing threshold dictates that the position is the same as in the jurisdictions that adopt the phrase ‘any person’. 122. That the ‘interest’ in the probate context will ordinarily be a proprietary one does not mean that non-proprietary interests can never suffice: In the Will of Adcock (1904) 26 ALT 127 (where Hodges J offered the example of a beneficiary under the will propounded lodging a caveat on the ground that the testator lacked capacity to make the will, even though should the will be set aside the beneficiary would not necessarily be entitled to an interest in the estate); Re Finn [1942] VLR 125 (where Lowe J held that, although the interest claimed by the bankrupt caveator — an interest under a prior will of the testator — was not one that passed as property to the Official Receiver, it was sufficient to lodge

a caveat). 123. Baskome v Harrison (1849) 2 Rob Ecc 118 at 121; 163 ER 1262 at 1263 per Sir Herbert Jenner Fust (‘I cannot accede to the proposition that a next of kin has a right to oppose any paper he may think fit’); Re Seymour [1934] VLR 136 at 138 per Mann ACJ; Re Devoy [1943] St R Qd 137 at 144–5 per Philp J; Boland v Nahkle (SC(NSW), Powell J, 6 April 1992, unreported) BC9203240 at 4; Re the Estate of van den Berg [1999] ACTSC 82; BC9904260 at [11] per Connolly M. This is confirmed by the relevant rules in New South Wales, the Northern Territory and Western Australia, which refer to a person claiming to have ‘an interest’ in the estate: NSW RSC Pt 78 r 66(1); NT RSC r 88.62(1); WA 1967 r 33(1). 124. See 11.102. 125. See generally 12.43–12.52. 126. Poulos v Pellicer [2004] NSWSC 504; BC200403815 at [10] per Windeyer J. See also Re Devoy [1943] St R Qd 137 at 144 per Philp J (noting, in this context, that ‘it is contrary to the interest of the State that persons having nothing to gain thereby should be permitted to institute or intervene in litigation’). 127. Re Finn [1942] VLR 125 at 127 per Lowe J. 128. (SC(WA), Owen J, 9 April 1998, unreported) BC9801241 at 11. 129. Re Estate of Ward (SC(WA), Owen J, 9 April 1998, unreported) BC9801241 at 12. 130. Baskome v Harrison (1849) 2 Rob Ecc 118 at 121; 163 ER 1262 at 1263 per Sir Herbert Jenner Fust. See also Kipping v Ash (1845) 1 Rob Ecc 270 at 273; 163 ER 1035 at 1036 (‘the bare possibility of an interest is sufficient’). 131. Re Devoy [1943] St R Qd 137 at 145 per Philp J (speaking, more generally, in terms of ‘some right of that person which will be affected by the grant’; endorsed in Boland v Nahkle (SC(NSW), Powell J, 6 April 1992, unreported) BC9203240 at 4); Re Estate of Ward (SC(WA), Owen J, 9 April 1998, unreported) BC9801241 at 11 (requiring a caveator to have a ‘recognisable interest in the estate’, being ‘some interest [that is] demonstrable and not merely speculative’). See, for example, Poulos v Pellicer [2004] NSWSC 504; BC200403815 (where the caveator’s interest was a claim for an order for transfer of property, as a result of pending family law proceedings, from her late husband to herself and the expectation of a more favourable order if her husband inherited the estate of his mother; Windeyer J held that this ‘interest’ was ‘conditional upon an order being made which may not be made’, describing it as ‘a hope without assignment’ and as ‘too remote’: at [24]). 132. [2015] SASC 1; BC201500027 at [11], [12] per Judge Dart. 133. Arbuz v Sanderson (SC(NSW), Waddell J, 24 March 1986, unreported); Re Estate of Ward (SC(WA), Owen J, 9 April 1998, unreported) BC9801241 at 11; King v Hebbard (1992) 3 Tas R 241 at 246 per Zeeman J; Wood v McLean (2010) 31 VR 12; [2010] VSC 550; BC201009292 at [40] per Sifris J; Stacey v Stacey [2010] WASC 85; BC201002652 at [11], [12] per Beech J; Garwoli v Garwoli [2015] SASC 1; BC201500027 at [15] per Judge Dart. Cf Hogarth v Johnson [1987] 2 Qd R 383. 134. Hogarth v Johnson [1987] 2 Qd R 383 at 385–8 per Andrews CJ, at 389–90 per Ryan J; Mataska v Browne [2013] VSC 62; BC201300720 at [51]–[54] per McMillan J (in the context of an application to ‘pass over’ an appointed executrix). 135. Elme v da Costa (1791) 1 Phil 173 at 177; 161 ER 952 at 953 per Sir William Wynne (‘The right of a creditor is only this; he cannot be paid his debt till a representation to the deceased is made; he can then call on all who have a right to administer; before an administration is granted if a will be produced, the creditor has no right to contradict or deny it; for if there is a will, or a next of kin claims the administration, then a person offers to make himself a representative, and the creditor gets all that he has a right to’); Menzies v Pulbrook (1841) 2 Curt 845 at 848; 163 ER 605 at 605–6

per Sir Herbert Jenner. 136. Randall v Randall [2017] Ch 77; [2016] EWCA Civ 494 at [22] per Lord Dyson MR (noting that ‘the interests of the two types of creditor are fundamentally different. The interest of the creditor of a beneficiary is to ensure that the beneficiary receives what is due to him or her under the will or on an intestacy. The interest of a creditor of an estate is to ensure that there is due administration of the estate. The creditor of the estate is not interested in which beneficiary receives what’). 137. Re Seymour [1934] VLR 136 at 138–9 per Mann ACJ (creditor of a bankrupt son of the deceased, which son appeared to be a substantial beneficiary of an earlier will, found to have an ‘interest’ sufficient to lodge a caveat). 138. Elme v da Costa (1791) 1 Phil 173 at 177–8; 161 ER 952 at 953 per Sir William Wynne; Dabbs v Chisman (1810) 1 Phill Ecc 155 at 159–60; 161 ER 946 at 947 per Sir John Nicholl (noting that ‘an administrator stands on a more favoured footing than a person who is not clothed with that character’: at 160; 947). 139. ACT CPR r 3066(5); NSW s 144(2); NSW RSC Pt 78 r 66(1), (2); NT RSC r 88.62(1), (2); Vic 2014 r 8.01; WA 1967 r 33(2). 140. ACT CPR rr 3067(2), 3069–3071; NSW s 148; NSW RSC Pt 78 rr 69(1), 70, 71; NT RSC rr 88.64(1), 88.65, 88.66, 88.70; Qld UCPR rr 624(4), 626, 627; SA PR r 52.04; Tas PR r 78(1); Vic 2014 rr 8.03, 8.04; WA s 64; WA 1967 r 33(3). 141. ACT CPR r 3067(3); NSW RSC Pt 78 r 69(2); NT RSC r 88.64(2); Qld UCPR r 624(4); SA PR r 52.04; Tas PR r 78(2). 142. To this end, the evidence legislation other than in South Australia and Western Australia declares that probate of a will is evidence of the due execution of the will: Evidence Act 2011 (ACT) s 92(1) (b); Evidence Act 1995 (NSW) s 92(1)(b); Evidence (National Uniform Legislation) Act 2011 (NT) s 92(1)(b); Evidence Act 1977 (Qld) s 64 (and also its content); Evidence Act 2001 (Tas) s 92(1)(b); Evidence Act 2008 (Vic) s 92(1)(b). 143. ‘Common form’ and ‘solemn form’ represent the traditional English terminology. It should not be assumed, however, that the law always proceeds upon a rigid dichotomy here; there are nonetheless questions of degree involved: see Re Estate Kouvakas [2014] NSWSC 786; BC201405528 at [69], [70], [109], [204], [300]–[302] per Lindsay J; Re Estate of Sue [2016] NSWSC 721; BC201604359 at [109] per Lindsay J. A more modern (and descriptive) phraseology is adopted in the Uniform Probate Code (US) (see §3–102), namely ‘informal probate’ (being a ‘non-adjudicative determination’, akin to common form; the relevant process is, as in Australia, before a registrar: see §§3–301–3–311) and ‘adjudication of probate by the court’ (‘formal probate’, akin to solemn form; as to the process, see §§3–401–3–414). As to proof in ‘common form’ and ‘solemn form’, see 11.30–11.34. 144. Pinney v Pinney (1828) 8 B & C 335; 108 ER 1067. 145. Re Sanders [2016] VSC 694; BC201609919 at [73] per McMillan J. 146. As to administration cum testamento annexo, see 11.38–11.41. 147. Osborne v Smith (1960) 105 CLR 153 at 159; BC6000780 per Kitto J. See, for example, Rhodes v Rhodes (1882) 7 App Cas 192 at 198 per Lord Blackburn (PC) (‘when it is sufficiently proved that the instrument comprised his will, but that from fraud, or perhaps from inadvertence … the instrument which he actually executed contained also something which was not his will, this latter part is to be rejected’); Astridge v Pepper [1970] 1 NSWR 542 (involving grant of administration cum testamento annexo only in respect of the dispositive provisions of the will). 148. As to the intestacy rules, see Chapter 9. 149. The Tasmanian and Victorian probate legislation makes specific provision to this effect (Tas s 33(2); Vic s 38(2)) but it represents the common law in any case.

150. There is, to this end, nothing to preclude executors from proving a will in common form where there are evidently words omitted from the will, assuming that they have no doubt as to its validity with those words omitted nor any apprehension that such a grant may be opposed by a person entitled to oppose it. In these circumstances the executors’ duty is to place before the court all the available evidence that bears on the question of the testator’s knowledge and approval of those words. See Re Bryden [1975] Qd R 210 at 213 per Dunn J. 151. In the Estate of Kirs (deceased) (1990) 55 SASR 61 at 68 per Legoe J; Romascu v Manolache [2011] NSWSC 1362; BC201110815 at [174]–[178] per Hallen AsJ. 152. ACT CPR r 6250(2)(o); NSW RSC Pt 78 r 9(1); NT s 17; NT RSC r 88.05(1)(a); Qld UCPR r 601; SA PR r 10; Vic s 12; WA s 5; WA 1967 r 4. The position is the same in practice in Tasmania, pursuant to the preservation of previous court practice pursuant to Tas s 5(1). 153. Re Estate Kouvakas [2014] NSWSC 786; BC201405528 at [204] per Lindsay J. 154. Caldar v Public Trustee of New South Wales [2003] NSWCA 187; BC200303653 at [5] per Handley JA; Richardson v Rearden [2006] NSWSC 1252; BC200609647 at [16] per Campbell J. 155. Re Pyke (deceased) (1861) 1 W & W (IE & M) 20; Re Egan (deceased) [1963] VR 318 at 320 per Herring CJ; Tsagouris v Bellairs (2010) 5 ASTLR 403; [2010] SASC 147; BC201003978 at [35] per Gray J (‘inherently revocable’); Re Estate Kouvakas [2014] NSWSC 786; BC201405528 at [275] per Lindsay J. As a person who challenges a grant in common form in effect seeks revocation of that grant, he or she cannot force the executors to obtain proof in solemn form, although it is open to the executors to do so: Re Jolley (deceased) [1964] P 262 at 275 per Danckwerts LJ, at 276 per Diplock LJ. 156. Hoffmann v Norris (1805) 2 Phill Ecc 230n; 161 ER 1129n; Merryweather v Turner (1844) 3 Curt 802 at 811; 163 ER 907 at 910 per Sir Herbert Jenner Fust; Re Flynn (deceased) [1982] 1 All ER 882 at 889 per Slade J. See, for example, Dickman v Holley [2013] NSWSC 18; BC201300224 at [136]– [150] per White J (who held that a delay of 4 years did not bar a claim to revoke a grant in the absence of prejudice occasioned thereby, and that ‘[t]he fact that estate moneys have been distributed and spent by beneficiaries has not been considered as a ground of prejudice that should bar a claim for revocation of a grant of probate or letters of administration’: at [143]). 157. In Re Estate Kouvakas [2014] NSWSC 786; BC201405528 at [114] Lindsay J noted one of the differences between ‘probate’ and ‘equity’ as being that resort may possibly be had to equitable estoppel, and the equitable defences of laches and acquiescence, but that ‘they are not as readily available in the probate jurisdiction’ because: (a) proceedings are not purely adversarial in the probate jurisdiction; (b) ‘there is a public interest in seeing that the last will of a free and capable testator is recognised and enforced’; and (c) ‘probate procedures are not readily characterised as so defective as to warrant equity’s “intervention”’). 158. The reference to ‘acquiescence’ is to the legal doctrine to which knowledge is attached, usually coupled with prejudice to the persons who have relied on the validity of the existing grant (see, for example, Braham v Burchell (1826) 3 Add 243; 162 ER 468) as opposed to ‘mere’ acquiescence. See Bell v Armstrong (1822) 1 Add 365; 162 ER 129 (where Sir John Nicoll remarked that ‘a mere acquiescence (that is, an acquiescence accounted for by no special circumstances) on the part of the next of kin, to an executor’s taking probate, is no bar whatever to his calling it in and putting the executor on proof of the will, noting that ‘[i]f it were, no probate could be called in by a next of kin, unless immediately upon its becoming known to him that probate had been taken — the very contrary of which is matter of every day’s experience’: at 373; 132). Cf Mohan v Broughton [1899] P 211 (where Gorell Barnes J dismissed proceedings to revoke letters of administration approximately 6 years after they had been granted, reasoning that ‘the plaintiff has practically acquiesced in the Chancery proceedings, and has been guilty of such laches as to disentitle her … to maintain a suit

159.

160. 161. 162. 163.

164.

165. 166.

167.

168. 169.

against those who have received the estate to compel them to refund’: at 220); Neilson v Public Trustee (SC(NSW), Powell J, 8 May 1992, unreported) BC9201888 at 17–20 (involving a 30-year delay constituting acquiescence); Bramston v Morris (SC(NSW), Powell J, 20 August 1993, unreported) BC9303644 at 19–25; Rasheed v Rasheed (1999) 73 SASR 346; [1999] SASC 88; BC9901929 (where the Full Court summarily dismissed an application for revocation of a grant of probate made 22 years after the event, reasoning that the delay in the circumstances — the appellants having made a deliberate and informed decision not to challenge the will — amounted to laches and acquiescence: see at [64]–[72] per Duggan J). Say, where the court considers the application to be frivolous or vexatious. See, for example, Willis v Earl Beauchamp (1886) 11 PD 59 (where the English Court of Appeal, via its inherent power to prevent abuse of its processes, dismissed an application for revocation of letters of administration, after a lapse of more than 80 years, on the grounds that the action was frivolous and vexatious: at 63 per Bowen LJ, at 66 per Fry LJ (who branded an action begun so late as ‘almost prima facie vexatious’)). That is, through witnesses or evidence. See Re Estate Kouvakas [2014] NSWSC 786; BC201405528 at [249]–[251] per Lindsay J. As to the meaning of ‘interest’ in this context, see 11.25, 11.26, 11.102. See, for example, Re Young [1968] NZLR 1178 (where the executors were uncertain as to which of two wills should be admitted to probate); Kwok v Ng [2011] SASC 230; BC201109976 (where the executors were uncertain as to whether a later unsigned copy of what purported to be a will, with handwritten amendments, met the requirements for a will); Williams v Schwarzback (No 2) [2016] WASC 43 (where there was uncertainty surrounding testamentary capacity). Re Young [1968] NZLR 1178 at 1178 per Wilson J. See also In the Estate of Langton (deceased) [1962] P 163 at 175 per Danckwerts LJ; In the Estate of Vauk (deceased) (1986) 41 SASR 242 at 248 per Legoe J; Tsagouris v Bellairs (2010) 5 ASTLR 403; [2010] SASC 147; BC201003978 at [36] per Gray J; Dowling v Crossley [2013] NSWSC 1040; BC201311715 at [25] per Young AJ; Re Sanders [2016] VSC 694; BC201609919 at [73] per McMillan J. Re Estate Kouvakas [2014] NSWSC 786; BC201405528 at [247] per Lindsay J. Re Estate Kouvakas [2014] NSWSC 786; BC201405528 at [297] per Lindsay J (noting that the significance of discovery of a later will is as ‘a demonstration that principles governing res judicata cannot be applied in the probate jurisdiction (in the context of either form of grant) unqualified by the public interest in giving effect to a testator’s last known, due expression of testamentary intentions’). See, for example, Priestman v Thomas (1884) 9 PD 210 (will found to be a forgery); Birch v Birch [1902] P 130. It may be noted, though, that the fact that a grant in solemn form can be revoked if procured by fraud ‘is not a point of distinction because all court orders, including a grant in common form, are liable to be revoked if obtained by fraud’: Re Estate Kouvakas [2014] NSWSC 786; BC201405528 at [296] per Lindsay J. See, for example, In the Goods of Napier (1809) 1 Phil 83; 161 ER 921. See, for example, Ritchie v Malcolm [1902] 2 IR 403; Young v Holloway [1894] P 87 (where, although the plaintiff was cognisant of the previous action, at that time he had not, so far as he knew, any interest in the suit and so could not have intervened); Re Barraclough (deceased) [1967] P 1 (where Payne J noted the ‘fundamental principle’ that ‘a party should be bound by the decision if he has had an opportunity to appear and oppose the proceedings’, but added that ‘if by some unavoidable accident … a defendant has been prevented from coming to the court and opposing the proceedings, it does seem to me that the court would in the interests of justice … put the matter

170.

171.

172. 173. 174.

175. 176. 177. 178. 179. 180.

181. 182. 183.

right’, and that ‘[i]t would lead to a grave injustice if a decision — such as the decision [to grant probate in solemn form] — could not be put right although by mistake or by accident it had been given in the absence of somebody who genuinely wished to come to court and oppose it’: at 11). See also Wytcherley v Andrews (1871) LR 2 PD 327 at 329 per Lord Penzance (‘It is one thing to say that a person who stands by and lets another fight his battle, must be bound by the result of the contest; and it is quite another thing to say that, without any notice that there was going to be a compromise, and without any knowledge that the suit was not proceeding to its natural end, he must nevertheless be bound by any agreement which the parties to the suit may choose to enter into’). See Newell v Weeks (1814) 2 Phil 224 at 233; 161 ER 1126 at 1129 per Sir John Nicholl (‘Spectators to the whole, and privy to the whole, if they had been dissatisfied, they might have intervened at any moment of the proceedings. This right of intervention, coupled with their privity to the proceedings, is decisive to shew that they can have sustained no prejudice by not having been before cited, and not having before given a formal appearance’); In the Estate of Langton (deceased) [1962] P 163 at 178–9 per Diplock LJ. Osborne v Smith (1960) 105 CLR 153 at 158–9; BC6000780 per Kitto J, citing from Lord Penzance in Wytcherley v Andrews (1871) LR 2 PD 327 at 328–9 (who added that this principle ‘is founded on justice and common sense, and is acted upon in courts of equity, where, if the persons interested are too numerous to be all made parties to the suit, one or two of the class are allowed to represent them; and if it appears to the Court that everything has been done bonâ fide in the interests of the parties seeking to disturb the arrangement, it will not allow the matter to be re-opened’: at 329). In the Will of Harrison (1905) 11 ALR(CN) 25 at 25 per Madden CJ; Re Levy (deceased) [1953] VLR 652 at 657 per Sholl J; Re Collins (deceased) [1969] VR 499 at 499–500 per Gowans J. In the Will of Harrison (1905) 11 ALR(CN) 25. Re Pyke (deceased) (1861) 1 W & W (IE & M) 20 at 31 per Molesworth J; In the Will of England (1900) 22 ALT 86; Re Levy (deceased) [1953] VLR 652 at 656–9 per Sholl J; Re Jolley (deceased) [1964] P 262 at 275 per Danckwerts LJ, at 276 per Diplock LJ. [1953] VLR 652 at 658. In the Goods of Chamberlain (1867) LR 1 P & D 316 at 318–19 per Sir J P Wilde. As to an executor’s obligations to propound what he or she believes is a valid will, see 12.14. Re Levy (deceased) [1953] VLR 652 at 658–9 per Sholl J. Re Levy (deceased) [1953] VLR 652 at 657 per Sholl J, referring to R Phillimore, Burn’s Ecclesiastical Law, 9th ed, Sweet, Stevens & Norton, London, 1842, Vol IV, p 322. See, for example, Wheatley v Edgar (2003) 4 ASTLR 1; [2003] WASC 118; BC200303231. Re Levy (deceased) (No 2) [1957] VLR 662 at 665 per Sholl J. See also Re Grey Smith (deceased) [1978] VR 596 at 601–2 per Murphy J; Wheatley v Edgar (2003) 4 ASTLR 1; [2003] WASC 118; BC200303231 at [20]–[24] per E M Heenan J (concluding that ‘for there to be a grant in solemn form the court must be satisfied on evidence adduced by the party propounding the will, or by any other party to that suit, whether joined or cited, of the formal validity of the will, on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at that time’: at [24]). As to this rule, see 11.19. Western Australian Trustee Executor Agency Co Ltd v Holmes [1961] WAR 144 at 146 per Hale J; Wheatley v Edgar (2003) 4 ASTLR 1; [2003] WASC 118; BC200303231 at [24] per E M Heenan J. Dempsey v Lawson (1877) 2 PD 98 at 105–6 per Sir James Hannen P; In the Estate of Bryan [1907] P 125 at 129 per Lord Gorrell; In the Estate of Heys (deceased) [1914] P 192 at 200 per Sir Samuel Evans

184. 185. 186. 187. 188. 189. 190.

191.

192.

193.

194. 195. 196. 197. 198. 199. 200. 201. 202.

P; Re Hawksley’s Settlement [1934] Ch 384 at 395–6 per Luxmoore J; In the Estate of Fawcett (deceased) [1941] P 85 at 87–8 per Langton J; In the Estate of Kavanagh (deceased) (1977) 16 SASR 342 at 345–6 per Jacobs J. See, for example, Re Smith [1939] VLR 213. In the Estate of Fawcett (deceased) [1941] P 85 at 87 per Langton J. See generally 21.7–21.17. [2001] NSWSC 167; BC200101168 at [20]. See also Re Hawksley’s Settlement [1934] Ch 384 at 396 per Luxmoore J; Re Resch’s Will Trusts [1969] 1 AC 514 at 547 per Lord Wilberforce (PC). See 10.14. The point is made explicit by rules in Victoria: Vic 2014 r 6.01 (‘A grant of representation may be made to two or more persons jointly’). See also SA s 23 (‘The court has the power to grant administration to more than one person’). See, for example, Scarpuzza v Scarpuzza (2011) 4 ASTLR 244; [2011] WASC 65; BC201101263 at [45]–[49] per E M Heenan J (who granted probate without reserving leave to a renouncing executor to later come in and prove the will). See ACT s 10B; NSW s 41 (see Bowler v Bowler (SC(NSW), Young J, 7 June 1990, unreported) BC9002347 at 3–4); NT s 19; WA s 7 (see Tsaknis v Lilburne [2010] WASC 152; BC201004162 at [44] per E M Heenan J). See also SA PR r 43.01 (pursuant to which, where one of two or more executors is a minor, probate may be granted to the other executor(s) not under disability, with leave reserved to the minor to apply for probate on the minor attaining the age of 18 years); Tas PR r 60 (‘Where there are more than 4 executors who have not renounced and are competent to take probate, the grant shall bear a notation that power is reserved to the other executors to apply on vacancies occurring’). The Tasmanian and Victorian probate legislation adds that, where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the other(s) to prove, all the powers that are by law conferred on the personal representative may be exercised by the proving executor(s) for the time being and are as effectual as if all the persons named as executors had concurred therein: Tas s 11; Vic s 18. Re Mathew (deceased) [1984] 2 All ER 396 (where Antony Lincoln J remarked that an order in these terms ‘is as much as to say that the grant of probate is made by the court to one executor without prejudice to the right of the others to apply and obtain a double grant of probate’: at 399). See, for example, In the Estate of Shaw [1905] P 92 (probate granted to three executors revoked when one executor became of unsound mind; a fresh grant was made to the two sane executors ‘reserving power to the lunatic [executor] to apply to join in the probate, should he desire to do so on recovering his sanity’: at 93 per Gorell Barnes J). See, for example, Whitmore v Weld (1685) 1 Vern 326; 23 ER 499; Re Matheson (deceased) (1906) 27 NZLR 99. See, for example, Brown v Milson [2012] WASC 36; BC201200291 at [32] per E M Heenan J. SA PR r 44.03 makes explicit provision to this effect. Tsaknis v Lilburne [2010] WASC 152; BC201004162 at [44] per E M Heenan J. Gould v Gould [2005] NSWSC 914; BC200507287 at [6] per Campbell J. See 10.23–10.26. See 10.33–10.39. See, for example, In the Goods of Pryse (deceased) [1904] P 301. See, for example, In the Goods of Baylis (1862) 2 Sw & Tr 613; 164 ER 1135 (where the testator appointed ‘any two of my sons’ as executors, the appointment was held to fail as void for uncertainty); In the Goods of Blackwell (1877) LR 2 PD 72 (where the appointment of ‘one of my

203.

204.

205.

206. 207.

sisters my sole executrix’, without stating which, was likewise ruled void for uncertainty); Re Estate of Brown (deceased) [2013] SASC 62; BC201309674 (where a clause that appointed ‘any two (2) and only two (2) of the partners or directors (as the case may be) at the date of my death of the firm or company carrying on practice under the firm name of Mellor Olsson … or of the firm or company which at that date has succeeded to and carries on such practice to be the Executors and Trustees of this my Will’ failed for uncertainty: at [6]–[12] per Gray J). Uncertainty can, however, be in some instances addressed via the curial rectification power (as to which see 2.62–2.77): see, for example, Re Estate of Varley (deceased) (2007) 251 LSJS 461; [2007] SASC 420; BC200710243 (clause that sought to appoint a partner of a law firm ‘or a partner of the firm with which [that partner] practices [sic]’ as executor found void for uncertainty, but the partner originally named in the will was willing and able to act as executor, in turn prompting Debelle J to rectify the clause to provide only for the appointment of that partner as executor); Re Estate of Costello [2014] SASC 134; BC201407618 (a case factually similar to Varley, in which Gray J followed the same course). Note, however, that the death of the nominated executor before the testator does not necessarily require an application for administration at all, at least not in the circumstances where the doctrine of ‘executorship by representation’ operates: see 10.83–10.85. Nor does the death of one of the nominated executors trigger the need for an application for administration, as probate may be granted to the surviving executor(s). See, for example, Re Legh (deceased) (1889) 15 VLR 816 (where the nominated executrix and sole devisee was so enfeebled by age as to be incapable of transacting business); In the Goods of Ponsonby [1895] P 287 (where the nominated executor was incapacitated through illness); In the Goods of Atherton [1902] P 104 (where the nominated executor lacked mental capacity); In the Estate of Davis [1906] P 330 (where the nominated executor was incapable due to ill health); Re McIndoe (1908) 28 NZLR 104 (the sole executor becoming insane); In the Will of Leung (deceased) (SC(Vic), Beach J, 17 November 1994, unreported) (where the testator’s wife was appointed as sole executrix and beneficiary but renounced due to her poor health and advanced age); Re Belcher [2010] NSWSC 382; BC201002675 (where the nominated executor was incapable due to having been disagnosed with dementia). Cf In the Goods of Edwards-Taylor [1951] P 24 (where Willmer J refused to pass over the deceased’s daughter, and sole beneficiary, as administrator cum testamento annexo (the nominated executors had all since died) purely on the ground of her alleged immaturity). In the case of incapacity, it is possible for the grant to be made durante dementia (that is, during incapacity; sometimes termed durante corporis aut animi vitio), to end upon capacity being regained: see 11.46, 11.47. See, for example, Re Drawner (1913) 108 LT 732 (where the executor named in the will was in prison for perverting the course of justice for bringing a fraudulent action against the deceased); In the Estate of S (deceased) [1968] P 302 (where the executrix was serving a gaol sentence for the manslaughter of the deceased); Re Pedersen (SC(NSW), Holland J, 17 June 1977, unreported) (where the executor named in the testatrix’s will had been convicted of murdering her and remained in prison). The position is different where there are multiple appointees, and not all are unwilling, incapable or unable to act. In this event probate may be granted to those who can and do act: see 11.36. Cf Administration Act 1969 (NZ) s 9A, which states that, if the sole (remaining) executor had in place an enduring power of attorney, and on the date of the deceased’s death is (or within 3 months thereafter becomes) mentally incapable, the court may, upon application, make a grant of administration to the attorney. This section was inserted, with effect from 3 July 1998, to address the deficiency identified by Greig J in Re Dennis [1993] 3 NZLR 86.

208. The Tasmanian and Victorian legislation, to this end, states that, where administration cum testamento annexo is granted, the will of the deceased must be performed and observed in like manner as if probate thereof has been granted to an executor: Tas s 22; Vic s 25. Equivalent provision is made in New Zealand: Administration Act 1969 (NZ) s 10. 209. As to the intestacy rules, see Chapter 9. 210. The phrase ‘necessary or convenient’ has been held to vest in the court a broad discretion: Bath v British & Malayan Trustees Ltd [1969] 2 NSWR 114 at 118 per Helsham J. 211. Although some of the early case law supports the proposition that competence here refers only to legal competence (see, for example, In the Goods of Samson (1873) LR 3 P&D 48), it appears that it is now not so confined, but can encompass misconduct by the nominated executor preceding the grant of probate; the latter, it has been held, proves the nominee incompetent to be entrusted with the administration of the estate (see, for example, In the Estate of Potticary [1927] P 202; Re Hunter (deceased) [1932] NZLR 911 at 928–9 per Reed J, at 934 per Ostler J, at 944–5 per Smith J). In any case, the courts’ inherent jurisdiction to ‘pass over’ a nominated executor (see 10.68—10.70), including for misconduct, arguably renders any debate sterile. 212. The National Committee for Uniform Succession Laws considered that a model provision should omit reference to the appointed executor being resident out of the jurisdiction: QLRC, Report 65, Vol 1, pp 85–6 (referring to its reasoning in its earlier Discussion Paper to the effect that ‘with the greater ease of communication over distances, it was no longer appropriate to include as a ground for the appointment of an administrator that the executor was resident out of the particular jurisdiction’). See further 10.12, 10.13. 213. ACT s 24; NSW s 74; NT s 33; WA s 36. The text in question follows that of s 73 of the Court of Probate Act 1857 (UK) (20 & 21 Vict, c 77). 214. In the Australian Capital Territory, 6 months; in New South Wales and the Northern Territory, 3 months; in Western Australia, 2 months. 215. In New South Wales, the NSW Trustee or a trustee company. In the Northern Territory, the Public Trustee, a trustee company or a legal practitioner: NT s 6(1). 216. ACT s 25; ACT CPR r 3114; NSW s 75(1); NT s 34; WA s 37. 217. Vic s 15. 218. (1982) 30 SASR 169. 219. In the Estate of Yearwood (1982) 30 SASR 169 at 171, referring to In the Goods of Fernie (1849) 6 Notes of Cases 657. 220. In the Estate of Yearwood (1982) 30 SASR 169 at 175. 221. See, for example, Re Horgan (deceased) [1971] P 50 at 60 per Latey J (where the deceased’s will contained the clause ‘I appoint the firm of Rodgers, Horsley & Burton … who may act through any partner or partners of that firm or their successors in business at the date of my death not exceeding two in number to be the executors and trustees of this my will’; it was held that, on a proper construction of this clause, the sole surviving partner in the firm could validly act as executor and trustee). See also Re Cornelius (deceased) [2012] 1 NZLR 853; [2011] NZHC 1804 at [30]–[48] per MacKenzie J (containing a discussion of wording of various clauses to this effect). 222. See G E Dal Pont, Lawyers’ Professional Responsibility, 6th ed, Lawbook Co, Australia, 2017, pp 669– 71. 223. See, for example, Re Rogers (deceased) [2006] 2 All ER 792; [2006] EWHC 753 (Ch); Re Cornelius (deceased) [2012] 1 NZLR 853; [2011] NZHC 1804 at [5]–[12] per MacKenzie J. Cf Lubke v Claridge [2016] TASSC 44; BC201610083 (where the issue was whether the testator intended to appoint his accountant personally as executor or instead the accounting practice itself; on the facts, Brett J sided with an interpretation that favoured the former).

224. In the Estate of Yearwood (1982) 30 SASR 169 at 175–6. 225. Qld s 46; SA s 35; Tas s 18; Vic s 21. 226. The term ‘limited’ in this context refers to a grant that is limited in some specific way, whether by reference to the time frame in which it is to persist, the property to which it may apply or the purpose for which it was made: Bath v British and Malayan Trustees Ltd [1969] 2 NSWR 114 ar 120 per Helsham J. 227. For instances calling for other forms of limited administration see, for example, Pegg v Chamberlain (1860) 1 Sw & Tr 527; 164 ER 844 (where the court granted letters of administration to a beneficiary of a trust, limited to the fund in trust, where the trustee died and lacked a personal representative, where the parties entitled to represent the trustee had first been cited); In the Goods of Ratcliffe [1899] P 110 (similar scenario, with the consent of the personal representatives of the trustee); In the Goods of Mann [1891] P 293 (where the deceased’s will was limited to her property outside the jurisdiction, limited administration was granted vis-à-vis her property within the jurisdiction). See further Williams, Mortimer and Sunnucks, pp 383–99. 228. Literally the phrase de bonis non refers to the goods unadministered, but in its application in this context it is intended to cover land as well as goods. 229. See, for example, In the Estate of Saker [1909] P 233 (where the original administrator of an intestate estate could not be found, and was believed dead, upon the discovery of additional assets of the estate the court granted administration de bonis non to one of the deceased’s next of kin); In the Estate of French [1910] P 169 (administration de bonis non granted to a creditor of the estate in circumstances where the original administrator could not be traced and fresh assets came to light); In the Will and Estate of Allan (deceased) [1912] VLR 286 (where the administrator cum testamento annexo died prior to conveying real estate to the devisees named in the will, Madden CJ granted administator de bonis non cum testamento annexo to the deceased’s daughter); Re Kilby [2016] NSWSC 1433; BC201608614 (where probate granted to an executor (C) who had since died, and reasonable efforts could not locate C’s executor, Slattery J granted letters of administration de bonis non). See further Williams, Mortimer and Sunnucks, pp 410–13. 230. See, for example, Davis v Davis [2012] NSWSC 523; BC201203269 (appointment of the NSW Trustee as administrator de bonis non in place of the executor whose grant of probate was revoked). As to the grounds for revocation of probate, see 11.94–11.107. 231. In the Will and Estate of Martin [1912] VLR 206. 232. Catherwood v Chabaud (1823) 1 B & C 150; 107 ER 56. 233. Ackerley v Felton [2012] NSWSC 1468; BC201210652 at [56] per Young AJ. 234. ACT s 12(2); NT s 22(3); Tas s 13A; WA s 25(1). 235. This is recognised at general law (see, for example, Re Cope (1880) 16 Ch D 49 at 52 per Jessel MR) and pursuant to the probate statutes in several jurisdictions (ACT s 21(2); NSW s 71; NT s 30(2); WA s 33(2)). 236. Jones v Basset (1701) Prec Ch 174; 24 ER 85; Re Johnson [1931] VLR 60. 237. ACT CPR r 3116(1), (2); Qld UCPR r 639(2). 238. See NSW RSC Pt 78 r 52(1); NT RSC r 88.29(1) (but this election will not bind the court if it considers that another eligible person is more appropriate or better fitted to act as guardian: NSW RSC Pt 78 r 52(3); NT RSC r 88.29(3)). 239. NSW RSC Pt 78 r 50; NT RSC r 88.28(1). Assignment in this context is governed by NSW RSC Pt 78 r 51; NT RSC r 88.30. 240. SA PR r 42.01. 241. SA PR r 42.03.

242. Tas PR r 43. 243. Tas PR r 44 (the order is to be obtained on summons supported by an affidavit showing that the proposed guardian is either next of kin of the infants, or that their next of kin has renounced the right to the guardianship, and has consented to the assignment of the proposed guardian, and that such proposed guardian is ready to undertake the guardianship). 244. Vic 2014 r 5.01(1), (2). 245. Vic 2014 r 5.01(3). 246. WA 1967 r 26(1), (2). 247. That is, administration during incapacity. 248. See, for example, Re Williams (1830) 3 Hagg Ecc 217; 162 ER 1136 (where the deceased died intestate, leaving a widow, who lacked mental capacity, and two grandchildren his next of kin; the latter were appointed as joint administrators); Re Anderson (1864) 3 Sw & Tr 489; 164 ER 1365 (letters of administration granted to the deceased’s brother in place of the deceased’s incapable widow); In the Estate of Boyd (deceased) (1885) 11 VLR 117 (deceased’s daughter appointed as administrator of her father’s intestate estate in place of her incapable mother); Re Shaw [1992] 2 VR 457 (deceased’s son appointed as administrator of his father’s intestate estate in place of his incapable mother). Cf Administration Act 1969 (NZ) s 9A, which states that, if a person who would otherwise be entitled to apply for letters of administration has in place an enduring power of attorney, the court may, upon application, grant administration to his or her attorney in the event of incapacity. This section was inserted, with effect from 3 July 1998, to address the deficiency identified by Greig J in Re Dennis [1993] 3 NZLR 86. 249. See, for example, Re Hastings (1878) 4 PD 73. 250. In the Goods of Binckes (deceased) (1836) 1 Curt 286; 163 ER 97. 251. See, for example, In the Estate of Boyd (deceased) (1885) 11 VLR 117. As to grants of administration de bonis non, see 11.43. 252. SA PR r 44.01. 253. SA PR r 44.02. 254. SA PR r 44.05 (which, however, adds that, if the incapable administrator had a superior title to that of the capable administrator(s), leave must be reserved to the former to apply for administration when he or she becomes capable of managing his or her affairs). 255. Tas PR r 45A(1). 256. In Queensland the court rules state that, if a person residing outside Queensland is entitled to a grant, the court may, instead of making the grant to that person, make the grant to someone residing in Queensland who the court is satisfied may act under a power of attorney for that person: Qld UCPR r 611(1), (2). 257. Namely, in the Australian Capital Territory, a creditor, legatee, next of kin; in New South Wales, like the Australian Capital Territory but adds the NSW Trustee or a trustee company; in the Northern Territory, like the Australian Capital Territory but adds a ‘professional personal representative’ (defined in NT s 6(1)); in South Australia, ‘a spouse or domestic partner, or of any creditor or next of kin, or of any person interested under the will, or of the Public Trustee’; in Tasmania, Victoria and Western Australia, any creditor or person interested in the estate. 258. ACT s 26; NSW s 76; NT s 35; SA s 37; Tas s 21(1); Vic s 24(1); WA s 38(1). See, for example, In the Estate of Julius (1909) 26 WN (NSW) 98; Re Cowan (deceased) [1913] SALR 55. In several of these jurisdictions the legislation makes explicit provision for affidavits that the applicant must swear in this regard: ACT s 27; NSW s 77; NT s 36; SA s 38; WA s 38(2). 259. Re Cowan (deceased) [1913] SALR 55 at 56 per Murray J (FC) (referring to the equivalent provision in the former South Australian legislation, namely s 55 of the Administration and Probate Act 1891

(SA)). 260. See, for example, In the Goods of Suarez [1897] P 82 (administrator appointed where the next of kin were in the interior of Bolivia and it therefore took considerable time to communicate with them); In the Will of Donohue [1944] QWN 8 (administrator appointed where the sole executor was on active war service and regarded by the Royal Air Force as missing). As to the court’s general statutory and inherent jurisdiction, see 11.1. 261. ACT s 28(1); NSW s 78(1); NT s 37(1); SA s 39(1); WA s 39(1). 262. ACT s 28(2); NSW s 78(2); NT s 37(2); SA s 39(2) (‘on being satisfied that such executor or administrator bona fide intends to remain within this State until the estate of the deceased has been duly administered’); WA s 39(1). 263. ACT s 29; NSW s 79; NT s 38; SA s 40; WA s 39(2). 264. ACT s 30; NSW s 80; NT s 39; SA s 41; WA s 40. 265. Tas s 21(3); Vic s 24(3). 266. ACT s 23(1); NSW s 73(1); NT s 32(1); Qld UCPR r 638; SA PR r 70; Tas s 19(1); Vic s 22(1); WA s 35. In the territories, New South Wales and Western Australia the legislation refers to the appointment of an administrator of the personal estate and the same or any other person to be receiver of the real estate of any deceased person. This harks to the historical distinction between realty (which vested in the deceased’s heirs immediately) and personalty (which vested in the executor) (see Public Trustee (WA) v Seow [2003] WASC 62; BC200301358 at [22] per E M Heenan J), a distinction that is now obsolete: see 11.68–11.70. 267. In the Goods of Graves (1828) 1 Hagg Ecc 313; 162 ER 597. 268. This point is made explicit in the Tasmanian and Victorian legislation (Tas s 19(1); Vic s 22(1); see also Public Trustee Act 1995 (SA) s 12(2), where the Public Trustee is appointed) but represents the general law in any event: Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477; BC200510714 at [121] per Anderson J. 269. ACT s 23(2); NSW s 73(2); NT s 32(2); Qld UCPR r 638(5); Tas s 19(2); Vic s 22(2). 270. In the Goods of Graves (1828) 1 Hagg Ecc 313; 162 ER 597; Wieland v Bird [1894] P 262. 271. See, for example, Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477; BC200510714 at [44], [61] per Debelle J, at [82] per Sulan J. This notion of preservation is implicit in the Tasmanian and Victorian legislation, which explicitly precludes an administrator from exercising ‘the right of distributing the residue of the real and personal estate’: Tas s 19(1); Vic s 22(1). 272. Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477; BC200510714 at [47] per Debelle J, at [123], [124] per Anderson J. There are occasions where an administrator pendente lite may perform some management role with the consent of the beneficiaries and within the mandate conferred by the court (Whittle v Keats (1866) 35 LJ (P&M) 54) but these are more the exception than the rule. 273. Executor Trustee Australia Ltd v Henderson [2005] SASC 446; BC200510135 at [11] per Perry J (endorsed on appeal: Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477; BC200510714 at [61] per Debelle J, at [124] per Anderson J). 274. Bellew v Bellew (1865) 4 Sw & Tr 58 at 61–2; 164 ER 1437 at 1438 per Sir J P Wilde; Greenway v McKay (1911) 12 CLR 310 at 316; BC1100030 per Griffith CJ; Re Oakes [1917] 1 Ch 230 at 232 per Neville J; Re Bevan (deceased) [1948] 1 All ER 271 at 272–4 per Lord Greene MR. 275. Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477; BC200510714 at [122] per Anderson J. 276. Northey v Cock (1822) 1 Add 326 at 330; 162 ER 114 at 116 per Sir John Nicholl. See also Young v Brown (1827) 1 Hagg Ecc 53 at 54; 162 ER 504 at 504 per the court (‘The court never selects either

277.

278.

279. 280. 281. 282. 283. 284. 285. 286. 287. 288. 289.

of the parties, but generally an indifferent nominee’); In the Goods of Evans (1890) 15 PD 215 (creditor who was not a party to the dispute over the testator’s will appointed administrator pendente lite); In the Estate of Cleaver [1905] P 319 (similar to Evans); Tomkinson v Hersey (1983) 34 SASR 181 at 184 per Cox J (‘The desirability of having the estate administered by someone who stands quite outside the litigious battle is obvious. The cases support the … conclusion that, as a general rule, a person unconnected with the action is the most suitable person to be appointed as administrator pendente lite’); Ellis v Ellis [2006] EWHC 1989 (Ch) at [21] per Judge Pelling QC. See, for example, Public Trustee (WA) v Seow [2003] WASC 62; BC200301358 (where, there being a dispute concerning the validity of two wills, E M Heenan J appointed the Public Trustee as administrator pendente lite because the Public Trustee had been nominated as the executor of the will later in time and, most importantly, the Public Trustee ‘is an independent statutory officer who has no interest in the distribution of the estate’: at [32]). See also Public Trustee Act 1995 (SA) s 12(1) (‘The court may appoint the Public Trustee to be the administrator of the estate of a deceased person until an action relating to the validity of the will of the deceased, or for obtaining or revoking a grant of probate or administration, is determined’). Tomkinson v Hersey (1983) 34 SASR 181 at 186, 187 per Cox J (speaking in terms of a case that is ‘quite exceptional’). See, for example, Re Griffin [1925] P 38 (which appears the only reported instance of a party to a contested probate action being appointed administrator pendente lite against the wishes of the proponent of a rival will; the facts were unusual, as the disputed asset was a timber business that the testator’s widow had been managing as receiver under a lunacy order prior to the testator’s death; Horridge J, in a three-line judgment, simply stated ‘I am not satisfied that there is any absolute rule against appointing a party’: at 39). (1983) 34 SASR 181. Tomkinson v Hersey (1983) 34 SASR 181 at 186. Tomkinson v Hersey (1983) 34 SASR 181 at 187. See generally Jacobs, Ch 19. (2005) 93 SASR 337; [2005] SASC 477; BC200510714. Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477; BC200510714 at [55], [61]. Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477; BC200510714 at [48]. Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477; BC200510714 at [125]. Cf the trend in Canadian provinces to statutorily recognise this form of grant: Administration of Estates Act 2000 (Alta) s 26; Wills, Estates and Succession Act 2009 (BC) s 103; Probate Court Act 1982 (NB) s 52; Probate Act 2000 (NS) s 24; Administration of Estates Act 1998 (Sask) s 19. Re Estate of Coe (2013) 9 ASTLR 287; [2013] NSWSC 968; 201311116 at [7] per Young AJ (referring to NSW s 40, with counterparts other than in Tasmania, as to which see 11.1). Faulkner v Daniel (1843) 3 Hare 199 at 207–8; 67 ER 355 at 359 per Wigram VC (‘where a limited administration is granted … and the limited administrator is made a party to a cause, the estate of the deceased is perfectly represented for all purposes, to the extent of the authority conferred by the letters of administration’); Re Estate of Coe (2013) 9 ASTLR 287; [2013] NSWSC 968; BC201311116 at [10] per Young AJ (noting that an administrator ad litem is ‘not merely a token representative of the deceased in the proposed action’, but ‘is virtually for all purposes the representative of the estate within the limits of the grant’). In the latter case Young AJ added (at [12]) that to appoint an administrator ad litem without the involvement of the persons named as the

290. 291. 292. 293. 294. 295.

296. 297. 298. 299. 300. 301. 302. 303. 304. 305. 306.

307. 308. 309. 310. 311.

deceased’s executor or the beneficiaries under the will is an ‘extreme step’, as the administrator needs to raise moneys to retain lawyers and investigate the plaintiffs’ allegations and, if a verdict is suffered, must raise moneys by selling the deceased’s assets or otherwise to meet the verdict. This suggested, his Honour surmised, that an administrator ad litem owes fiduciary duties, so that he or she cannot do a ‘sweetheart deal’ with the plaintiffs but must be fair in and about raising the funds to meet costs and verdict. See, for example, Greenway v McKay (1911) 12 CLR 310; BC1100030. Re Butler [1969] QWN 48. For instance, the administrator and the estate may have a similar cause of action against the same defendants arising out of the same tort or other breach of legal duty unless, perhaps, if there was insufficient insurance coverage to meet all the claims. Hughes Estate v Hughes (2007) 78 Alta LR (4th) 203; [2007] ABCA 277 at [25], [26] per the court. Government Insurance Office v Johnson [1981] 2 NSWLR 617 at 625 per Hutley JA. See also Davis v Chanter (1848) 2 Ph 545 at 551–2; 41 ER 1054 at 1056–7 per Lord Cottenham LC. NSW UCPR r 7.10 (which power is also triggered where the executors or administrators of a deceased person’s estate have an interest in the proceedings adverse to the interests of the estate) (formerly NSW RSC Pt 8 r 16); NT RSC r 16.03(1); Qld UCPR r 72(2); SA SCCR r 76(2), (3)(b), (5); Tas RSC r 184(2), (3); Vic RSC r 16.03(1); WA RSC O 18 r 15. The text of these rules, broadly speaking, reflects the gist of its seminal forebear, the Chancery Procedure Act 1852 (UK) s 44 (15 & 16 Vic c 86). This, in any event, represents the common law: Davis v Chanter (1848) 2 Ph 545; 41 ER 1054. Aliperti v Official Trustee [2000] NSWSC 315; BC200001832 at [6] per Austin J; Hewitt v Gardner (2009) 3 ASTLR 407; [2009] NSWSC 705; BC200906495 at [77]–[79] per Ward J. Ely (Dean & Chapter of) v Gayford (1853) 16 Beav 561; 51 ER 896. Hewitt v Gardner (2009) 3 ASTLR 407; [2009] NSWSC 705; BC200906495 at [89] per Ward J. See, for example, Hele v Lord Bexley (1852) 15 Beav 340; 51 ER 569; Robertson v Kemble [1867] WN 305. See, for example, Smith v Mackrill [1978] Qd R 403. Sometimes termed ad colligenda bona defuncti. See 11.68–11.70. In the Goods of Roberts [1898] P 149 at 152 per Sir Francis Jeune P. [1975] VR 187 at 189. See also In the Estate of Rowell (2006) 95 SASR 536; [2006] SASC 313; BC200608254 at [2], [3] per Debelle J. Hoare v Johnson (1998) 8 Tas R 74 at 82; BC9801944 per Underwood J (who made such an order in circumstances where there was a real risk that, in view of a dispute over the validity of the relevant will, at least some of the deceased’s assets could be lost or dissipated before the grant of full administration could be made). See also Ghafoor v Cliff [2006] 2 All ER 1079; [2006] EWHC 825 (Ch) at [4] per David Richards J (‘It is a useful, sometimes vital, power enabling urgent steps to be taken at a time when it is not yet practicable to obtain a full grant of probate or administration’). Re Estate of the late Assim (2015) 106 ACSR 544; [2015] NSWSC 337; BC201502066 at [20] per Slattery J. [1899] P 186. (2006) 95 SASR 536; [2006] SASC 313; BC200608254. (2015) 106 ACSR 544; [2015] NSWSC 337; BC201502066. See, for example, In the Goods of Wyckoff (1862) 3 Sw & Tr 20; 164 ER 1178 (grant ad colligenda bona made ‘limited for the purpose of realizing and collecting the property which the deceased [who

312. 313. 314. 315.

316. 317.

318.

319. 320.

321.

322.

resided in the United States] died possessed of or entitled to within the jurisdiction of the Court, and to invest the proceedings of such property’: at 24; 1180 per Sir C Cresswell). See, for example, Re Stewart (1869) LR 1 P & D 727. Whitehead v Palmer [1908] 1 KB 151 at 156 per Channell J. See, for example, In the Goods of Clarkington (1861) 2 Sw & Tr 380; 164 ER 1043. Whitehead v Palmer [1908] 1 KB 151 at 156–7 per Channell J (giving the example of an administrator ad colligenda bona empowered to sell a lease, in which case ‘the lease must become vested in him for the time to the same extent as it is in an executor or in a general administrator’, as ‘[o]therwise it is difficult to see how the administrator could effect a sale’). See, for example, Ghafoor v Cliff [2006] 2 All ER 1079; [2006] EWHC 825 (Ch) at [63]–[65] per David Richards J. Cf Fazio v Naso [2016] WASC 385; BC201610100 at [11] per Sanderson M. The value of the bond or guarantee, to this end, depends on the financial position of the person(s) giving it, not so much when it is given but when it comes to be enforced: Re Egen (deceased) [1951] NZLR 323 at 324 per F B Adams J. In the Estate of Freebairn (2005) 93 SASR 415; [2005] SASC 497; BC200511236 at [22] per Besanko J (and see ACT CPR r 3045(2); SA s 31(2) (repealed by the Administration and Probate (Removal of Requirement for Surety) Act 2014 (SA), as from 29 September 2014); Vic s 57(1); WA s 26(1)). See also Re Estate of Sopru (deceased) (1992) 165 LSJS 132 at 134–6 per Legoe J; Re Estate of J (deceased) (1999) 204 LSJS 205; [1999] SASC 364; BC9907527 at [14] per Williams J. See 10.23–10.26. Cf Re Topliss (deceased) (1914) 17 GLR 285 (where Denniston J remarked that, where the court, via a revocation of probate, replaces the nominated executor with another executor (see 11.104–11.107), the appointee ‘is the creation of the Court and not of the testator; and is really in the position of an administator de bonis non’ (at 285); accordingly, his Honour considered that the court may, in appointing the executor, require sureties). In this context, note the remarks of F B Adams J in Re Egen (deceased) [1951] NZLR 323 at 324, who opined that ‘prospective sureties are themselves entitled to some measure of protection’, branding it as ‘unsatisfactory, and perhaps unfair, that the Court should absolve its conscience by casting a liability on innocent and helpless sureties, at a possibly remote date, if the Court has any other means of ensuring a proper administration’. His Honour described sureties in this context as ‘helpless … in almost all circumstances’: at 325. There are, in any case, restrictions on persons who can properly act as sureties: see In the Estate of Cregan (1931) 48 WN (NSW) 188 (persons with an interest in the estate can act only if ‘they justify apart from their interest’: at 188 per Harvey CJ in Eq); In the Goods of Mackenzie [1950] QWN 29; Re Rothberg (deceased) (1963) 4 FLR 416 (each raising potential issues of residency); Re Aleksejevs (deceased) [1966] VR 188 (dealing with the prospect that prospective sureties may lack sufficient property to justify their suretyship). Law Commission, Administration Bonds, Personal Representatives’ Rights of Retainer and Preference and Related Matters, Report No 31, 1970; Law Reform Commission of Western Australia, Administration Bonds and Sureties, Project No 34, Pt II, 1976; Queensland Law Reform Commission, The Law Relating to Succession, Report No 22, 1978, pp 33–6; New South Wales Law Reform Commission, Administration Bonds, Working Paper No 18, 1978; QLRC, Report 65, Vol 1, pp 260–1. Cf the New Zealand approach which, rather than assuming that an administration guarantee or bond should be ordered, starts from the opposite assumption by empowering the court to grant administration ‘conditional upon the person to whom the grant is made giving such security as the Court may require for the due collection, getting in, and administration of the estate of the deceased’ (Administration Act 1969 (NZ) s 6(5)), which power can only be exercised in special circumstances

323.

324. 325. 326. 327.

328. 329. 330. 331. 332. 333. 334. 335. 336. 337. 338. 339. 340. 341. 342. 343. 344. 345. 346.

347. 348. 349. 350. 351.

by reference to the factors listed in s 6(6) of the Act. In the United States a bond is likewise ordinarily premised upon a court order: see Uniform Probate Code (US), §3–603. The Queensland Law Reform Commission report noted in the preceding footnote drove the inclusion of Qld s 51 (which states that, as from the commencement of the Succession Act 1981 (Qld), neither an administration bond nor sureties in support of an administration bond may be required of any administrator). See 11.64. See 11.65. See, for example, In the Estate of Storey (1902) 28 VLR 336; In the Estate of Ross [1926] VLR 568. ‘Required amount’ means: (a) the value of the estate; (b) a lesser amount decided by the court under ACT CPR r 3045(6) (which states that, on application by the administrator or on its own initiative, the court may decide that the required amount for an administration bond for an estate is less than the value of the estate); or (c) if the value of the estate is less than $10,000 — a lesser amount decided by the registrar: ACT CPR r 3045(6). ACT CPR r 3045(1), (2). ACT CPR r 3045(3). ACT CPR r 3046(1), (2). ACT CPR r 3049(1), (2). ACT CPR r 3050(1), (2). NSW s 64(1). NSW s 65. NSW s 65. NSW s 64(2), (3); NSW Trustee and Guardian Act 2009 (NSW) s 19. NSW s 68. NT s 27; SA s 31(8) (repealed by the Administration and Probate (Removal of Requirement for Surety) Act 2014 (SA), as from 29 September 2014); WA s 26(6). NSW s 66(b); NT s 26(2). NSW s 66(c); NT s 26(3), (4). NT s 23. Public Trustee Act 1979 (NT) s 96; Companies (Trustees and Personal Representatives) Act 1981 (NT) s 29. NT RSC r 88.24(5). NT s 26(2). SA s 31(1) (repealed). In Re Estate of Brown (deceased) [2013] SASC 62; BC201309674 at [31] Gray J accepted that where an interest in an estate is left to a trustee to hold on the terms of a discretionary trust, the range of objects of a discretionary trust should not be regarded as falling within this dot point. SA s 31(3) (repealed). SA s 31(7) (repealed). SA s 31(4) (repealed). SA s 31(9) (repealed); Public Trustee Act 1995 (SA) s 10. SA s 31(10), (12) (repealed) (in the case where administration was granted to two or more persons; see, for example, Re Estate of Brown (deceased) [2013] SASC 62; BC201309674 at [33], [34] per Gray J). These subsections derived from the Administration and Probate (Administration Guarantees) Amendment Act 2003 (SA), which addressed the difficulty in finding sureties (especially corporate sureties), and endeavoured to provide an alternative means of providing protection for persons interested in the estate of a deceased person: QLRC, Report 65, Vol 1, p 249. For backdrop to this

352.

353.

354. 355. 356. 357. 358. 359. 360. 361. 362.

363. 364. 365. 366. 367. 368. 369. 370. 371. 372. 373.

374. 375. 376. 377.

amendment, see Law Reform Committee of South Australia, Report of the Law Reform Committee of South Australia to the Attorney-General: Relating to Administration Bonds and to the Rights of Retainer and Preference of Personal Representatives of Deceased Persons, Report No 22, 1972. See, for example, In the Estate of Freebairn (2005) 93 SASR 415; [2005] SASC 497; BC200511236 (where Besanko J found it beneficial or expedient to dispense with the requirement to provide a surety, where the brother of the deceased, who was appointed administrator in place of the deceased’s mentally incapable mother, had a significant financial interest in the due and proper administration of the testator’s estate, which in turn significantly reduced the risk of maladministration: at [33]). See, for example, Re Estate of J (deceased) (1999) 204 LSJS 205; [1999] SASC 364; BC9907527 (where Williams J ruled that, in lieu of requiring a surety on the bond, the interests of the infant beneficiaries would be sufficiently protected by the engagement of an independent investigating accountant who should be required to provide periodic reports to the court and the Public Trustee: at [22]). Pursuant to the Justice and Related Legislation (Miscellaneous Amendments) Act 2015 (Tas). Tas s 25(1). Tas PR r 32(1). Tas s 25(6); Public Trustee Act 1930 (Tas) s 51. Tas s 25(7); Tas PR r 35. Vic s 57(1). Vic s 57(3). Vic 2014 r 7.01. Cf Re Curran [2010] VSC 455; BC201007603 at [26] per Ferguson J (who declined to order a guarantee, even though the applicant for administration lacked any immediate beneficial interest in the estate, because a guarantee would, in the circumstances, have been unreasonably burdensome on the applicant, whose appointment was supported by the only persons with an interest in the estate). Vic s 22: see 11.49. Vic s 24: see 11.48. Re Tratt (deceased) [1980] VR 657 at 663 per Brooking J. Vic 2014 r 7.01. Vic s 57(4). WA s 26(1). WA 1967 r 27(1)(a)–(d). WA 1967 r 27(1). WA 1967 r 27(2). WA s 26(8); WA 1967 r 27(4); Public Trustee Act 1941 (WA) s 51. WA 1967 r 27(6). The court may, at any time, require the surety/ies to give such further or additional guarantee as the court may direct, or that the guarantee be reduced to such amount as it thinks reasonable: WA s 26(2). In fixing the amount of the guarantee, the registrar must take into account the extent to which the claim of a creditor is secured over a mortgage or charge of the estate of the deceased: WA 1967 r 27(6). WA s 26(5). (1910) 11 CLR 492 at 501; BC1000033. ACT s 39; NSW s 44(1); NT s 52; Qld s 45(2); SA s 46 (directed to assimilating the position of land to that of personalty); WA s 8. ACT s 41(1); NSW s 46(1); NT s 54(1); SA s 51(1); Tas ss 32(1), 39(1); Vic ss 37, 44(1); WA s 10(1).

378. 379. 380. 381. 382. 383. 384. 385. 386. 387. 388. 389. 390.

391. 392. 393. 394.

395. 396. 397. 398. 399. 400. 401.

See also ACT s 41A(1); NSW s 46A(1); NT s 55(1); Qld s 56(1) (the real and personal property of the deceased are assets for the payment of the funeral, testamentary and administrative expenses and the debts and other liabilities of the deceased). ACT s 43; NSW s 48; NT s 60; Qld s 49(1) (refers to powers); SA s 46(2); Tas s 5(1); Vic s 14; WA ss 11, 12. Namely Probate Act 1890 (NSW) s 20. Union Bank of Australia v Harrison Jones and Devlin Ltd (1910) 11 CLR 492 at 507; BC1000033. See also at 529 per Higgins J. ACT s 11; NSW s 62(1); NT s 21; WA s 24. Tas s 15; Vic s 20. ACT s 42; NSW s 47; NT s 59. Hart-Roach v Public Trustee (SC(WA), Murray J, 11 February 1998, unreported) BC9800158 at 30. In New South Wales, the NSW Trustee; in Victoria, the State Trustees. NT s 49; Public Trustee Act 1941 (WA) s 9. ACT s 38A; NSW s 61; Tas s 12; Vic s 19. See 11.73. 21 & 22 Vict c 95, as to which see 21.16. SA s 45 (the section refers to the Court of Probate Act 1858, but the Act was passed in 1857, and commenced in January 1858). See 11.73. Qld s 45(1). The Public Trustee also holds title to the property forming the estate during any interval of time between a recall, revocation or other determination of a grant and the making of a subsequent grant: Qld s 45(3). The National Committee for Uniform Succession Laws has recommended, in line with the current Queensland position, that the property of a deceased person should generally vest in the Public Trustee only as a last resort, but that the model legislation replace the phrase ‘willing to act’ — in view of its potential to create uncertainty about whether property has in fact vested in a particular executor — by reference to vesting unless the executor(s) lack ‘legal capacity’ to act as executor(s): QLRC, Report 65, Vol 1, p 281. SA s 46(1); Tas ss 4(1), 5(1) (although s 4(3) makes clear that the personal representatives are the representatives of the deceased in regard to both the real and personal estate of the deceased). This reflects the historical distinction between realty and personalty in this context: see 11.68–11.70. Vic s 13(1). Ryan v Davies Bros Ltd (1921) 29 CLR 527 at 536; BC2200035 per Knox CJ, Higgins and Starke JJ. See also Woolley v Clark (1822) 5 B & Ald 744 at 746; 106 ER 1363 at 1364 per Abbott CJ (‘An executor … derives his title from the will itself, and the property vests in him from the moment of the testator’s death’); Williams v Williams [2005] 1 Qd R 105; [2004] QSC 269; BC200405523 at [3] per Wilson J (remarking that, pursuant to Qld s 45, the executor’s title is not dependent on a grant of probate, but derives from the will coupled with statute). See 11.29. See N Crago, ‘Executors of Unproved Wills: Status and Devolution of Title in Australia’ (1993) 23 UWALR 235. See R Pollard, P Whitehead, M Pringle and P Johnson, ‘Administration of Intestate Estates’ (2016) 43 Aust Bar Rev 142 at 146–7. See the historical account in the judgment of Street CJ in Ex parte the Public Trustee (1951) 51 SR (NSW) 345 at 347–8. 21 & 22 Vict c 95, s 19. Ex parte the Public Trustee (1951) 51 SR (NSW) 345 at 348–9 per Street CJ (emphasis supplied). (1951) 51 SR (NSW) 345.

402. Ex parte the Public Trustee (1951) 51 SR (NSW) 345 at 350. Similar views had earlier been expressed by A H Simpson CJ in Eq in Re Broughton (1902) 19 WN (NSW) 69 at 70 and Roper J in Foy v Public Trustee (1942) 42 SR (NSW) 209. Cf Re Hart (deceased) [1963] NSWR 627 at 631 per McClelland CJ in Eq. 403. (1952) 86 CLR 223; BC5200390. 404. Andrews v Hogan (1952) 86 CLR 223 at 229; BC5200390. 405. Andrews v Hogan (1952) 86 CLR 223 at 232 per Dixon CJ, at 237 per McTiernan J, at 241 per Webb J, at 245 per Fullagar J, at 255 per Kitto J; BC5200390. See also Fred Long & Son Ltd v Burgess [1950] 1 KB 115 (a factually similar earlier English case, where Bucknill LJ remarked that ‘I think that … the vesting of the estate in the [Public Trustee] is a positive act with some legal substance … I see no reason why in a case of necessity the [Public Trustee] should not have legal power to give directions about the property. If he cannot do so, no one can. That is why the property is vested in him. If the [Public Trustee’s] position is such as I have indicated, I think he must have the legal capacity to receive a valid notice to quit, and such notice, after the proper lapse of time, has full legal effect. If no grant of administration has been made, there is no other person but the [Public Trustee] to whom the notice to quit can validly be given’: at 119–20); Perpetual Trustee Co Ltd v Public Trustee (1956) 56 SR (NSW) 384 (where Owen J, with whom Herron and Ferguson JJ concurred, held that the Public Trustee was a person against whom a summons may be issued and on whom it may be served). 406. Andrews v Hogan (1952) 86 CLR 223 at 250; BC5200390. 407. [2013] NSWSC 973; BC201311548 at [63]. 408. Indeed, in GEL Custodians Pty Ltd v Estate of late Wells [2013] NSWSC 973; BC201311548 at [41] Davies J opined that the continuing authority of Ex parte the Public Trustee (1951) 51 SR (NSW) 345 is ‘far from clear’. 409. Booth v Public Trustee [1954] VLR 183 at 190 per Hudson AJ (who remarked that the statutory vesting in the Public Trustee does not vest in the Public Trustee ‘any power to exercise the powers or perform the duties of the executorial office prior to the grant of probate’); Byers v Overton Investments Pty Ltd (2001) 109 FCR 554; [2001] FCA 760; BC200103223 at [19] (FC). 410. Smith v Mather [1948] 2 KB 212 at 217 per Somervell LJ, at 218 per Cohen LJ (overruled on a different point: Moodie v Hosegood [1952] AC 61); Harrowby v Snelson [1951] 1 All ER 140 at 145 per Cassels J; Ex parte Newland Bros Pty Ltd [1956] SR (NSW) 35 at 38–9 (FC); Holloway v Public Trustee [1959] SR (NSW) 308 at 311–13 per Walsh J. 411. [1982] WAR 55 at 58. 412. Qld s 45(6). 413. Qld s 45(4A). 414. QLRC, Report 65, Vol 1, pp 303-4. 415. NT s 50(1); Public Trustee Act 1978 (Qld) s 36(1); Public Trustee Act 1930 (Tas) s 21(1). 416. NT s 50(2); Public Trustee Act 1978 (Qld) s 36(2); Public Trustee Act 1930 (Tas) s 21(2). 417. The notice procedures and requirements are found in NT s 51; Public Trustee Act 1978 (Qld) s 36(3)–(6); Public Trustee Act 1930 (Tas) s 21(3)–(6). 418. Martin v Fuller (1695) Comb 371; 90 ER 534; Wankford v Wankford (1699) 1 Salk 229 at 305; 91 ER 265 at 269 per Holt CJ; Hudson v Hudson (1737) 1 Atk 460 at 461; 26 ER 292 at 293 per the Lord Chancellor; Redwood Music Ltd v B Feldman & Co Ltd [1979] RPC 1 at 7 per Goff J. 419. See 11.81, 11.82. 420. Chetty v Chetty [1916] 1 AC 603 at 609 per Lord Parker (PC); Ingall v Moran [1944] 1 KB 160 at 167–8 per Luxmoore LJ; Hilton v Sutton Steam Laundry [1946] KB 65 at 70–3 per Lord Greene MR;

421. 422. 423. 424. 425. 426.

427. 428. 429.

430.

431. 432. 433.

434. 435. 436.

Burns v Campbell [1952] 1 KB 15 at 18–19 per Hodson LJ; Finnegan v Cementation Co Ltd [1953] 1 QB 688; Bowler v John Mowlem & Co [1954] 3 All ER 556 at 557–8 per Denning LJ; Minister of State for the Interior v RT Co Pty Ltd (1962) 107 CLR 1 at 7; BC6200100 per Taylor J (‘Notwithstanding that upon grant the administrator’s title relates back to the death of the deceased whom he represents it has been consistently held that this element of retroactivity is incapable of sustaining a writ issued before the grant’); Ex parte Callan [1968] 1 NSWR 443 at 448 per Isaacs J; Marshall v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463 at 467–8 per Yeldham J; Gertsch v Roberts (1993) 35 NSWLR 631 at 635 per Powell J; Pekel v Humich (SC(WA), Sanderson M, 3 December 1998, unreported) BC9806540 at 4–6 (although branding the rationale for the rule ‘somewhat difficult to fathom’: at 7); Millburn-Snell v Evans [2012] 1 WLR 41; [2011] EWCA Civ 577 at [14]–[16] per Rimer LJ. See 11.29. Attorney-General v New York Breweries Co Ltd [1898] 1 QB 205 at 216 per A L Smith LJ. Cash v Nominal Defendant (1969) 90 WN (Pt 1) (NSW) 77 at 79 per Brereton J. Before which time the appointed executor can renounce executorship: see 10.58, 10.59. As to executors de son tort, see 10.15–10.20. Smith v Milles (1786) 1 Term Rep 475 at 480; 99 ER 1205 at 1208 per Ashhurst J; Pinney v Pinney (1828) 8 B & C 335; 108 ER 1067; Hewson v Shelley [1914] 2 Ch 13 at 38 per Phillimore LJ; Chetty v Chetty [1916] 1 AC 603 at 608–9 per Lord Parker (PC); Ingall v Moran [1944] 1 KB 160 at 167–8 per Luxmoore LJ, at 170 per Goddard LJ; Biles v Ceasar [1957] 1 WLR 156 at 159 per Denning LJ, at 160 per Hodson LJ; Laybutt v Amoco (Australia) Pty Ltd (1974) 132 CLR 57 at 77; BC7400053 per Gibbs J; Re Crowhurst Park [1974] 1 WLR 583 at 591–2 per Goulding J; Redwood Music Ltd v B Feldman & Co Ltd [1979] RPC 1 at 6 per Goff J; Williams v Williams [2005] 1 Qd R 105; [2004] QSC 269; BC200405523 at [3] per Wilson J. The Daily Pty Ltd v White (1946) 62 WN (NSW) 262 at 263 per Herron J. (1989) 16 NSWLR 463 at 467–8. Darrington v Caldbeck (1990) 20 NSWLR 212 at 219. See also Ex parte Callan [1968] 1 NSWR 443 at 448 per Isaacs J; Bone v Commissioner of Stamp Duties (NSW) (1974) 132 CLR 38 at 46; BC7400039 per Stephen J; Byers v Overton Investments Pty Ltd (2001) 109 FCR 554; [2001] FCA 760; BC200103223 at [21], [28], [29] (FC). Cf Gertsch v Roberts (1993) 35 NSWLR 631 at 635 per Powell J (who refrained from expressing a view on the point). This does not apply, however, to situations where the executor’s authority with respect to the estate does not rely on the vesting of property: see, for example, Laybutt v Amoco (Australia) Pty Ltd (1974) 132 CLR 57; BC7400053 (where a notice to exercise an option granted by the deceased was served on the deceased’s executrix prior to probate having been granted, Gibbs J found the executrix competent to receive the notice, and the fact that the deceased’s property was not at that time vested in her was no reason why she could not do so: at 77). ACT s 39; NT s 52; WA s 8. ACT s 38A; NT s 49; Public Trustee Act 1941 (WA) s 9. There is case authority in the Australian Capital Territory to this effect: Jeffery v Irzykiewicz [2000] ACTSC 50; BC200003213 at [24] per Connolly M. Cf N Crago, ‘Executors of Unproved Wills: Status and Devolution of Title in Australia’ (1993) 23 UWALR 235 at 243–6. Pekel v Humich (SC(WA), Sanderson M, 3 December 1998, unreported) BC9806540 at 9. SA s 45 (Public Trustee); Tas s 12 (Chief Justice); Vic s 19 (State Trustees). There is some obiter, albeit veiled, support for this proposition in Queensland: Tonkin v Gunn (1988) Aust Torts Reports ¶80–219 at 68,181 per Connolly J.

437. 438. 439. 440. 441. 442. 443.

444. 445. 446. 447.

448.

449. 450.

451.

452. 453. 454. 455. 456.

ACT s 39; NSW s 44(1); NT s 52; Vic s 13(1); WA s 8. ACT s 40; NSW s 45; NT s 53; WA s 9. Qld s 45(1): see 11.89. Qld s 45(4). Qld s 49(3). Ex parte Callan [1968] 1 NSWR 443 at 448 per Isaacs J. Foster v Bates (1843) 12 M & W 226 at 233; 152 ER 1180 at 1183. See also Elliott v Kemp (1840) 7 M & W 306 at 313; 151 ER 783 at 785 per Parke B; In the Goods of Pryse (deceased) [1904] P 301 at 305 per Stirling LJ; Caudle v LD Law Ltd [2009] 2 All ER 1020; [2008] EWHC 374 (QB) at [31]–[35] per Wyn Williams J. Morgan v Thomas (1853) 8 Exch 302 at 307; 155 ER 1362 at 1364 per Parke B. See also Mills v Anderson [1984] 1 QB 704 at 710–12 per B A Hytner QC. The Daily Pty Ltd v White (1946) 63 WN (NSW) 262 at 263–4 per Herron J. (2001) 109 FCR 554; [2001] FCA 760; BC200103223 at [29]. Fred Long & Son Ltd v Burgess [1950] 1 KB 115 (where the English Court of Appeal held that the person ultimately appointed as administrator lacked the power to reverse the decision of the Public Trustee equivalent relating to the service on the latter of a notice to quit a tenancy: see at 120–1 per Bucknill LJ, at 123 per Asquith LJ). Sometimes described as ‘beneficial’ ownership (Bowker v Hunter (1783) 1 Bro CC 328 at 329; 28 ER 1161 at 1162 per Lord Thurlow; Dacre v Patrickson (1860) 1 Dr & Sm 182 at 184–5; 62 ER 348 at 349 per Kindersley VC; Re Glukman [1908] 1 Ch 552 at 555 per Cozens-Hardy MR, at 557 per Buckley LJ) although this is hardly to suggest that the executors may treat the estate property as their own. Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 at 712; BC6400550 per Lord Radcliffe (PC). Beckham v Drake (1849) 2 HL Cas 579 at 596; 9 ER 1213 at 1219 per Williams J (noting that ‘the executor represents the deceased as to all his contracts and personal rights’, and so an executor’s rights vis-à-vis a deceased estate are not as limited as those of an assignee of a bankrupt estate). An executor has, for this purpose, been described ‘in a loose sense’ as ‘a trustee for creditors and legatees’, since an executor holds the estate for their benefit and not for his or her own: Re Davis [1891] 3 Ch 119 at 124 per Lindley LJ. It is said, to this end, that an executor holds in auter droit (that is, in another’s right): Williams, Mortimer and Sunnucks, p 582. And it is in this context that judicial remarks such as that ‘the executors have no beneficial interest’ in the estate property (Re Cunliffe-Owen [1953] Ch 545 at 557 per Evershed MR; see also at 562 per Denning LJ, at 563 per Romer LJ) must be viewed. For the same reason, it has been observed that there is no merger of legal and beneficial ownership in the executor, given that merger is premised on the estates in question being ‘vested in the same person at the same time and in the same right’: Re Radcliffe [1891] 1 Ch 227 at 231 per Lindley LJ. Another judge has gone to so far as to describe an executor, vis-à-vis the assets of the estate, as no more than a ‘gratuitous bailee’: Job v Job (1877) 6 Ch D 562 at 564 per Jessel MR. See 12.21–12.23. See 10.45, 10.46. See 10.43. See 7.15. Wing v Angrave (1860) 8 HL Cas 183 at 199; 11 ER 397 at 403 per Lord Campbell LC (‘there is no foundation for the doctrine … where it is left doubtful which of two individuals died first, there is a

457. 458.

459.

460.

461.

462. 463.

464. 465.

466. 467.

468.

469.

470. 471.

presumption of law (juris et de jure) that they died at the same point of time’). See, for example, Wing v Angrave (1860) 8 HL Cas 183; 11 ER 397. The intestacy rules are discussed in Chapter 9. Re Trenaman [1962] SASR 95 at 98 per Napier J; Re Estate of Dawson (deceased) [2016] SASC 89; BC201605058; In the Estate of Thiel (deceased) [2017] SASC 1; BC201700186. There have been calls for reform in South Australia in this area: see Law Reform Committee of South Australia, Eightyeighth Report of the Law Reform Committee of South Australia to the Attorney-General: Relating to Problems of Proof of Survivorship as between Two or More Persons Dying at about the Same Time in One Accident, 1985, pp 16–28. In these circumstances SA s 72E states that the intestacy rules apply ‘as if the spouse had not survived the intestate’, which in its specific field of operation aligns with the approach adopted in ACT s 49P(1) and Law of Property Act 2000 (NT) s 216(2)(a) (as to which see 11.88). An equivalent provision is found in NT s 64. Conveyancing Act 1919 (NSW) s 35; Qld s 65; Presumption of Survivorship Act 1921 (Tas) s 2; Property Law Act 1958 (Vic) s 184. To the same effect in England see Law of Property Act 1925 (UK) s 184 (as to which see Theobald, pp 453–4; G H Treitel, ‘The Presumption of Death’ (1954) 17 Mod L Rev 530 at 538–9; Williams, Mortimer and Sunnucks, pp 439–41). Cf Succession (Scotland) Act 2016 (Scot) ss 9, 10. (1934) 34 SR (NSW) 547 at 551–2 (footnote supplied). See also NSW Trustee and Guardian v State of New South Wales [2015] NSWSC 1121; BC201507531 at [30] per Hallen J (‘The primary, and in fact, the sole, object of the legislation is to meet the case where the court is unable to determine the precise order of the deaths’). That is, those who die at the same time. Evidence sufficient to satisfy the court as to the order of deaths may often be medical evidence, but it should not be assumed that the court will uncritically act on that evidence or that it will meet the required standard of proof in the circumstances: see, for example, Re Bate (deceased) [1947] 2 All ER 418 (in the face of conflicting and not definitive medical evidence). Wing v Angrave (1860) 8 HL Cas 183 at 198–9; 11 ER 397 at 403 per Lord Campbell LC. Re Zappullo (deceased) [1966] VR 390 at 393–4 per Adam J; Re Rowlings (deceased) [2010] VSC 626; BC201009989 at [10], [11] per Macaulay J. See, for example, Re Comfort (deceased) [1947] VLR 237; NSW Trustee and Guardian v State of New South Wales [2015] NSWSC 1121; BC201507531. [1942] Ch 377 at 382. See, for example, Re Grosvenor [1944] 1 Ch 138 at 143 per Lord Greene MR, at 148–9 per Luxmoore LJ (and on appeal see Hickman v Peacey [1945] AC 304 at 314 per Viscount Simon LC, at 328–9 per Lord Wright). See, for example, Re Brush [1962] VR 596 at 601 per Adam J (referring to Re Grosvenor [1944] 1 Ch 138 at 148 per Luxmoore LJ, who opined that ‘the object of the section was not to provide a solution which would in all cases produce an equitable result, but was to cut the gordian knot and arrive at a solution which would usually bring about a result in accordance with the expectation that in the ordinary course of nature a younger person will survive an elder’); Re Rowlings (deceased) [2010] VSC 626; BC201009989 at [12], [13] Macaulay J. See, for example, Hickman v Peacey [1945] AC 304 at 314–15 per Viscount Simon LC (by way of obiter); Re Watkinson [1952] VLR 123 at 126 per Gavan Duffy J (following the remarks from Hickman v Peacey); In the Estate of Dixon (1969) 90 WN (Pt 1) (NSW) 469 at 473 per Helsham J. See 11.7–11.9. Re Albert (deceased) [1967] VR 875 at 879 per Lush J (emphasis supplied).

472. Halbert v Mynar [1981] 2 NSWLR 659 at 668 per Waddell J. 473. Cf the statutory ouster of this limitation in the Northern Territory by Law of Property Act 2000 (NT) s 216(1): see 11.88. 474. Donald v Guillesser [2016] 1 Qd R 583; [2015] QCA 92; BC201504243 at [47] per Morrison JA, with whom Gotterson and Philippides JJA concurred. 475. Succession Act 2006 (NSW) s 35; Qld s 33B (which also applies to distributions on intestacy); Wills Act 2008 (Tas) s 49; Wills Act 1997 (Vic) s 39. See further 7.13. 476. Halbert v Mynar [1981] 2 NSWLR 659 at 664 per Waddell J. 477. The National Committee on Uniform Succession Laws has recommended that model legislation adopt the ‘reasonable doubt’ language in place of the ‘uncertain’ terminology adopted in New South Wales, Queensland, Tasmania and Victoria, reasoning that the latter is capable of variable interpretation: QLRC, Report 65, Vol 2, p 416. 478. Property Law Act 1969 (WA) s 120(a). 479. Law of Property Act 2000 (NT) s 216(1), (2)(a). This broader approach was favoured by the National Committee on Uniform Succession Laws: QLRC, Report 65, Vol 2, p 418. 480. ACT s 49P. Cf Civil Law (Property) Act 2006 (ACT) s 213 (which states the basic rule that if two persons die at the same time or in an order that is uncertain, the deaths are, for purposes affecting title to land, taken to have happened in order of seniority, and the younger is taken to have survived the elder; this provision is, however, subject to ACT s 49P). 481. Indeed, the statutory presumption has been criticised for being arbitrary and capable of producing capricious results: Ontario Law Reform Commission, Administration of Estates of Deceased Persons, 1991, p 129. 482. Law Reform Commission of British Columbia, Presumptions of Survivorship, Report No 56, 1982, p 17; Manitoba Law Reform Commission, The Survivorship Act, Report No 51, 1982, p 6. 483. ACT s 49Q; Law of Property Act 2000 (NT) s 216(2)(d); Property Law Act 1969 (WA) s 120(d). Equivalent provision is made in New Zealand (Simultaneous Deaths Act 1958 (NZ) s 3(1)(d)) and has been recommended elsewhere (see, for example, Law Reform Committee of South Australia, Eighty-eighth Report of the Law Reform Committee of South Australia to the Attorney-General: Relating to Problems of Proof of Survivorship as between Two or More Persons Dying at about the Same Time in One Accident, 1985, p 28; QLRC, Report 65, Vol 2, p 388; Northern Ireland Law Commission, Report — Land Law, NILC 8, 2010, p 35). 484. QLRC, Report 65, Vol 2, p 384. 485. Union Bank of Australia v Harrison Jones and Devlin Ltd (1910) 11 CLR 492 at 516; BC1000033. See also at 499 per Griffith CJ (‘At common law co-executors were regarded as one person’); Re Wells (deceased) [1968] 1 WLR 44 at 47 per Goff J (‘the executorship is indivisible’). 486. Conveyancing Act 1919 (NSW) s 26(2); Qld s 45(1); Vic s 13(1). 487. Union Bank of Australia v Harrison Jones and Devlin Ltd (1910) 11 CLR 492 at 520; BC1000033. 488. Union Bank of Australia v Harrison Jones and Devlin Ltd (1910) 11 CLR 492 at 526–7; BC1000033 (emphasis in original). 489. This basic proposition is replicated by statute in some jurisdictions: Conveyancing Act 1919 (NSW) s 26(2); Qld s 45(2); Vic s 13(1). 490. Union Bank of Australia v Harrison Jones and Devlin Ltd (1910) 11 CLR 492 at 516; BC1000033 per Isaacs J. 491. Union Bank of Australia v Harrison Jones and Devlin Ltd (1910) 11 CLR 492 at 515; BC1000033 per Isaacs J. 492. Johnson v Trotter (2006) 12 BPR 23,339; [2006] NSWSC 67; BC200600661 at [20] per White J,

493.

494. 495. 496. 497. 498. 499. 500.

501. 502. 503. 504.

505.

506. 507.

citing Union Bank of Australia v Harrison Jones and Devlin Ltd (1910) 11 CLR 492; BC1000033 as authority for this principle; see in particular at 499 per Griffith CJ, at 508 per Barton J, at 522 per Isaacs J, at 527 per Higgins J). See also Jacomb v Harwood (1751) 2 Ves 265 at 267; 28 ER 172 at 173 per Sir John Strange (‘Nothing is clearer than this … that each executor has the entire control of the personal estate of [the] testator, may release, or pay a debt, or transfer any part of [the] testator’s property, without concurrence of the other executor’); Simpson v Gutteridge (1816) 1 Madd 609 at 616; 56 ER 224 at 227 per Plumer VC; Walker v Symonds (1818) 3 Swans 1 at 63–4; 36 ER 751 at 773–4 per Lord Eldon LC; Re Houghton [1904] 1 Ch 622 at 626 per Kekewich J (‘Executors are seised of their office per mie et per tout; each of them represents the estate for all purposes’); Fountain Forestry Ltd v Edwards [1975] Ch 1 at 11–12 per Brightman J; McLaughlin v Hannigan (SC(NSW), Windeyer J, 7 February 1996, unreported) BC9600129 at 18–19; Exception Holdings Pty Ltd (in liq) v Albarran (2005) 223 ALR 487; [2005] NSWSC 677; BC200504875 at [26] per Young CJ in Eq; Yule v Irwin (No 2) [2016] SASC 178; BC201609986 at [155]–[160] per Nicholson J (citing the first edition of this work). Jacomb v Harwood (1751) 2 Ves 265 at 267–8; 28 ER 172 at 173 per Sir John Strange; Smith v Everett (1859) 29 LJ Ch 236 at 239–40 per Sir John Romilly MR; Fountain Forestry Ltd v Edwards [1975] Ch 1 at 12–14 per Brightman J. See further R A Sundberg, ‘Powers of One of Several Personal Representatives’ (1985) 59 ALJ 649 at 650–1. Union Bank of Australia v Harrison Jones and Devlin Ltd (1910) 11 CLR 492 at 522; BC1000033. See, for example, Mitchell v Reproductions Pty Ltd (1952) 53 SR (NSW) 65. See Dal Pont, pp 670–1. See 10.45–10.51. Yule v Irwin (No 2) [2016] SASC 178; BC201609986 at [157], [158] per Nicholson J. Exception Holdings Pty Ltd (in liq) v Albarran (2005) 223 ALR 487; [2005] NSWSC 677; BC200504875 at [22] per Young CJ in Eq. Cf Re Fielding [1946] VLR 153 (where the reason why Martin J held invalid a contract entered into by two out of the three executors appears to have been that the contract itself was expressed to be made on behalf of the three executors). Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177 at 185; BC6200170 per Dixon CJ, Kitto and Windeyer JJ. (1855) 25 LT (OS) 125. Sneesby v Thorne (1855) 25 LT (OS) 125 at 126. See also Fountain Forestry Ltd v Edwards [1975] Ch 1 at 15 per Brightman J. The typical example is Conveyancing Act 1919 (NSW) s 54A, which has the following equivalents in other jurisdictions: Civil Law (Property) Act 2006 (ACT) s 204; Law of Property Act 2000 (NT) s 62; Property Law Act 1974 (Qld) s 59; Law of Property Act 1936 (SA) s 26; Conveyancing and Law of Property Act 1884 (Tas) s 36; Instruments Act 1958 (Vic) s 126; WA: Statute of Frauds 1677 (UK) s 4 (which applies as a result of the Law Reform (Statute of Frauds) Act 1962 (WA) s 2). Stokes v Churchill (1994) NSW ConvR ¶55–694; BC9302342 (where Santow J refused to grant specific performance where only one executor had signed, as it would be unfair on the estate); Fletcher v Burns (1997) 12 BPR 22,937 at 22,939; BC9700741 per Handley JA, with whom Cole JA and Dunford AJA concurred. Lepard v Vernon (1813) 2 V & B 51; 35 ER 237. Qld s 49(4). An equivalent provision has been recommended for uniform model legislation: QLRC, Report 65, Vol 1, p 418. Cf Uniform Probate Code (US) §3–717, which requires the concurrence of all co-representatives ‘on all acts connected with the administration and distribution of the

508. 509. 510. 511. 512. 513. 514. 515. 516. 517.

518. 519.

520.

521.

522.

523.

estate’, except where: (1) any co-representative receives and receipts for property due the estate; (2) the concurrence of all ‘cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate’; or (3) a co-representative has been delegated to act for the others. Queensland Law Reform Commission, The Law Relating to Succession, Report No 22, 1978, p 33. As to these powers, see 13.5. ACT s 50(5); Conveyancing Act 1919 (NSW) s 153(4) (see, for example, Morris v Hannagan [2011] NSWSC 1684); NT s 80(7). Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177 at 182–4; BC6200170 per Dixon CJ, Kitto and Windeyer JJ. Re Mayo [1943] Ch 302 at 304 per Simonds J. Sutton v Wahlen [2000] NSWSC 1063; BC200007012 at [9] per Young J. Public Trustee Act 1995 (SA) s 14(4). See Dal Pont, Law of Costs, pp 339–46. Nowakowski v Gajdobranski (SC(Vic), Ashley J, 12 April 1996, unreported) BC9601641 at 37. Qld s 6(1); SA s 5; Supreme Court Act 1935 (SA) s 18 (see Executor Trustee Australia Ltd v McDougall (2011) 110 SASR 462; [2011] SASC 140; BC201107312 at [19] per Kourakis J); Supreme Court Civil Procedure Act 1932 (Tas) s 6(5); Supreme Court Act 1935 (WA) s 18. NSW s 66(a) (limited to revocation of administration); NT s 26(1); WA s 29(1) (limited to revocation of administration). Baldwin v Greenland [2007] 1 Qd R 117; [2006] QCA 293; BC200606166 at [3] per McMurdo P. See also Otto v Redhead [2008] QSC 280; BC200810350 at [18] per Martin J (aff’d Otto v Redhead [2009] QCA 147; BC200904567) (‘a very wide discretion’). Bramston v Morris (SC(NSW), Powell J, 20 August 1993, unreported) BC9303644 at 20; Profilio v Profilio [1999] NSWSC 657; BC9903696 at [28] per Bryson J; Stanley v Stanley [2000] NSWSC 1133; BC200007770 at [8] per Bryson J; Rutter v McCusker [2008] NSWSC 1289; BC200810791 at [23] per Palmer J (remarking that the circumstances justifying removal are not defined in closed categories). In Baldwin v Greenland [2007] 1 Qd R 117; [2006] QCA 293; BC200606166 at [3] McMurdo P was not persuaded that the statutory jurisdiction stated in Qld s 6 ‘is no more than a statutory restatement of the court’s inherent jurisdiction’, but the very breadth of the inherent jurisdiction makes it difficult to envisage how the statutory jurisdiction could be broader. There is arguably no inherent jurisdiction to revoke administration: Bates v Messner (1967) 67 SR (NSW) 187 at 191 per Asprey JA (‘The exercise of this court’s jurisdiction to revoke a grant of probate, unlike the court’s power to revoke a grant of letters of administration, depends upon the inherent jurisdiction of the court’). See, for example, Butler v Meriga [1904] St R Qd 248; Ellis v Ellis [1905] 1 Ch 613 (where the grant of administration had been obtained by suppressing a valid will); Re Proud (deceased) [1951] QWN 17; In the Will Of Christian (1975) 25 FLR 89; Re Musolino (deceased) [2008] SASC 334; BC200810554 (revocation of grant of letters of administration where copy of will granted probate); Yazbek v Yazbek (No 2) [1011] NSWSC 783; BC201205190 (grant of administration upon intestacy revoked upon the discovery of a valid will). But revocation is not necessary where a codicil or other testamentary document subsequently comes to light that can sit together with the document already granted probate; instead a separate grant of probate may issue as regards the later discovered documents, which is ‘bound together’ with the original document(s): Estate of Wilson (1991) 24 NSWLR 334.

524. In the Goods of Loveday [1900] P 154 at 156 per Jeune P. 525. [1900] P 154. 526. [1951] P 422 at 424. See also In the Estate of Mack [1962] NSWR 1029 (where, of the two executors granted probate, one became of unsound mind and the other’s whereabouts were unknown, Myers J revoked the grant, limited until the incapable executor should become of sound mind, and revoked the grant unconditionally against the absent executor). 527. (1967) 67 SR (NSW) 187. 528. Bates v Messner (1967) 67 SR (NSW) 187 at 191–2 (paragraph break supplied). See also Warren v Milsom [1919] NZLR 737 (where Cooper J inferred that an executor to whom probate had been granted but who had not performed his executorial duties for a period of 18 months refused to administer the estate); Dear v Rich (1920) 22 WALR 69 (revocation on the ground of the failure by the administrator to pass accounts as required by statute); Phelan v Booth (1941) 43 WALR 60 (revocation of a grant of probate where the executor had neglected and refused to administer the estate); Di Domizio v Matalone [2012] NSWSC 296; BC201203373 (grant revoked where no steps taken to complete the distribution of the estate without any satisfactory explanation); Brown v Milson [2012] WASC 36; BC201200291 (where one of two executors, who was absent from the jurisdiction and unable to be contacted, was needed to execute the transfer for the completion of the sale of an estate asset, E M Heenan J revoked the grant to the absent executor and confirmed the grant for the remaining executor). 529. (1998) 45 NSWLR 80 at 108; BC9808010. See also Rutter v McCusker [2008] NSWSC 1289; BC200810791 at [22] per Palmer J; Estate of Rogers v Rogers [2009] WASC 358; BC200910751 at [23] per E M Heenan J. 530. (2009) 106 SASR 39; [2009] SASC 399; BC200911689 at [17]–[26] (where the co-executors applied for the revocation, and for the grant of new probate in favour of the deceased’s daughters, to which all the parties consented). See also Profilio v Profilio [1999] NSWSC 657; BC9903696 at [29] per Bryson J (‘the power can be exercised in cases where a grant of probate and the responsibility conferred on the executors are not effectual for a reason such as exists in this case, where there is simply an incapacity to achieve cooperation, and long continuance of discussion about what course should be taken without effectual outcomes’); Ziesemer v Ziesemer [2011] QSC 214; BC201105635 (where the management of ‘a complex and difficult estate’ had reached an impasse stemming from the breakdown of family relationships, Ann Lyons J replaced the executor with an independent solicitor: at [42]). 531. (2009) 4 ASTLR 42; [2009] NTSC 23; BC200904526. 532. Lubis v Walters (2009) 4 ASTLR 42; [2009] NTSC 23; BC200904526 at [48]. 533. See, for example, Williams v Williams [2005] 1 Qd R 105; [2004] QSC 269; BC200405523 at [45]– [48] per Wilson J; Mansour v Mansour (2009) 24 VR 498; [2009] VSC 177; BC200903832 at [48]– [53] per Hansen J; Esplin v Timms (2010) 3 ASTLR 150; [2010] NSWSC 339; BC201002506 at [9]– [14] per Tamberlin AJ. 534. See generally 12.30–12.42. 535. See, for example, Phelan v Booth (1941) 43 WALR 60. 536. See, for example, Conners v Conners [2012] NSWSC 181; BC201201278 (proper administration of the estate prevented by the executor’s intransigence); Davis v Davis [2012] NSWSC 523; BC201203269 (where the executor omitted to sell estate property for years, failed to maintain estate accounts and exhibited an attitude of doing as he pleased vis-à-vis the estate); Lawless v Donaldson [2012] NSWSC 570; BC201203720 (where realisation of the principal asset of the estate — a house — was frustrated by the intransigence of one of the two named executors, who refused to vacate the

house). 537. See, for example, Estate of Rogers v Rogers [2009] WASC 358; BC200910751 (where the son of the deceased, who was appointed as executor and granted probate, subsequently persistently failed to comply with orders of the court relating to the administration of the estate, leading the court to revoke the grant of probate). 538. Estate of Rogers v Rogers [2009] WASC 358; BC200910751 at [37] per E M Heenan J. 539. See, for example, Re Greif (deceased) [2005] VSC 266; BC200505376 at [17]–[20] per Byrne J. 540. Estate of Rogers v Rogers [2009] WASC 358; BC200910751 at [32] per E M Heenan J. See also Williams v Williams [2005] 1 Qd R 105; [2004] QSC 269; BC200405523 at [45] per Wilson J (‘A court will not lightly interfere with a testator’s appointment of executors’); Dimos v Skaftouros (2004) 9 VR 584; [2004] VSCA 141; BC200405875 at [13] per Winneke P (‘the court will not lightly exercise its discretion to remove a person who has been chosen by the testator’). 541. Klement v Randles [2009] VSC 320; BC200906932 at [11] per Davies J (aff’d Klement v Randles [2010] VSCA 160; BC201004291). 542. [2007] 1 Qd R 117; [2006] QCA 293; BC200606166 at [44], with whom Helman J agreed. See also See v Hardman [2002] NSWSC 287; BC200202152 at [82] per Bryson J (noting that the testatrix ‘had a legal right to choose her own executor. The choice was hers and she had the advantage of knowing her family and its relationships, who was available and what talents they had’). 543. Porteous v Rinehart (1998) 19 WAR 495 at 518; BC9804413 per White J. 544. See v Hardman [2002] NSWSC 287; BC200202152 at [17] per Bryson J. 545. Stanley v Stanley [2000] NSWSC 1133; BC200007770 at [10] per Bryson J. 546. Gowans v Watkins (SC(Vic), Teague J, 21 February 1996, unreported) BC9601257 at 28 (‘the courts are concerned with more than the question of whether there is a situation of conflict of duty and interest’); Morgan v MacRae [2001] NSWSC 1017; BC200106936 at [25], [26] per Young CJ in Eq; Uniting Church of Australia Property Trust (NSW) v Millane [2002] NSWSC 1070; BC200206946 at [8], [9] per Windeyer J; Sleiman v Alwan [2009] NSWSC 484; BC200904849 at [24] per Young JA (adding that to succeed the plaintiff would have had to ‘go a lot further than showing a mere conflict’: at [25]); Executor Trustee Australia Ltd v McDougall (2011) 110 SASR 462; [2011] SASC 140; BC201107312 at [22], [23] per Kourakis J. 547. [2008] NSWSC 1289; BC200810791. 548. Rutter v McCusker [2008] NSWSC 1289; BC200810791 at [27]–[29]. 549. [2013] 3 NZLR 701; [2013] NZHC 2086; BC201365139 at [18]. 550. See, for example, Upton v Downie [2007] NSWSC 1095; BC200708470 at [53]–[55] per Gzell J. 551. See, for example, Baldwin v Greenland [2007] 1 Qd R 117; [2006] QCA 293; BC200606166 at [45] per Jerrard JA, with whom Helman J agreed; Mullins-Trnovsky v Adams (2014) 121 SASR 155; [2014] SASC 116; BC201406658 (where one of the executors had provided tax advice to the estate, which was alleged to have been negligent). 552. See, for example, TS (by his tutor PS) v Malouf [2010] NSWSC; BC201003977 (where Nicholas J found no basis for a reasonable apprehension that in the foreseeable future there was a likelihood that the relationship would develop into one of such animosity as to impede the discharge of the executorial and trusteeship function: at [54]); Chesney v Tognola [2011] QSC 340; BC201108987 (where Douglas J remarked that, in the absence of any evidence casting doubt on the capacity and bona fides of the chosen executors to perform their function, that the executors had ‘a possible interest in defending any relevant previous conduct by them’ and ‘their evidence [was] likely to be contrary to the evidence of those who wish[ed] to challenge the will’ did not justify their removal as executors: at [13]); National Westminster Bank plc v Lucas [2014] WTLR 637; [2014] EWHC 653 (Ch)

553.

554.

555. 556.

557.

558.

(where, having found that the bank (as executor) had not contributed to the friction in question, Sales J held that the bank should remain as executor for reasons including that it is ‘a professional executor of good repute which is capable of being neutral and impartial in administering the estate as between the different competing interests and, on any fair view, of being seen to be impartial’, it was willing to act without charging the estate, and had established a track record of effective and appropriate administration of the estate in the unusual and testing circumstances of the case: at [89]; his Lordship added that ‘[g]enerally, the court will be slow to remove an executor and personal representative just because one group claiming against the estate is disappointed and disaffected as a result of reasonable decisions the executor has made in an effort in good faith to strike a fair balance between competing interests’: at [89]). Gowans v Watkins (SC(Vic), Teague J, 21 February 1996, unreported) BC9601257 at 45 (noting that ‘a reasonably high level of antipathy as between siblings is hardly an uncommon circumstance, with the position tending to become less harmonious as the siblings go on as adults to achieve more or less in their careers or otherwise, and to enter marriage or other relationships which are more or less happy and lasting’); Grey v Youngson [2006] WASC 123; BC200605075 at [52] per Hasluck J (who remarked that personality differences are not uncommon in families, ‘but they must not be used to mount unsubstantiated allegations of impropriety’). See, for example, Re Estate Wight [2013] NSWSC 1229; BC201312587 (bona fide dispute between the executor and the sole beneficiary that frustrated the due administration of the estate led Lindsay J to revoke the grant of probate and issue letters of administration to the sole beneficiary, as the person with the greatest interest in the estate); Re Estate of Storch (deceased) [2013] SASC 129; BC201311676 (breakdown of the relationship between a solicitor and three daughters of the deceased, who had collectively been granted probate, led Gray J to revoke probate and issue a fresh grant to the three daughters, to which the solicitor consented); Wilby v Rigby [2015] WTLR 1845; [2015] EWHC 2394 (Ch) (removal of the executors (brother and sister) who could not work together, whose relationship had completely broken down). NSW s 66; NT s 26(1); WA s 29(1). See, for example, Dear v Rich (1920) 22 WALR 69 (where the plaintiff, to whom the defendant administrator was indebted for legal services the plaintiff performed in relation to the estate, was held to be a person ‘interested in the estate’ for this purpose); Re Will and Estate of Russo [2009] VSC 491; BC200909768 at [31] per Hargrave J (speaking in terms of a ‘real financial interest’ to ensure the proper execution of the estate). Re Gillard (deceased) [1949] VLR 378 at 381 per Barry J (‘Generally speaking, an interest sufficient to entitle a person to oppose a grant is sufficient to entitle him to seek revocation of a grant’). As to the nature of the relevant ‘interest’, see 11.25, 11.26. The reference to ‘interest’ litigation should not be interpreted as suggesting that only private interests come into play. Public interest considerations, it has been observed, remain prominent in probate proceedings because of an ever-present need to consider ‘rights’ — whether actual, potential or merely arguable — of absent parties, and to maintain public confidence in an orderly, fair process for succession to property: Cole v Paisley [2016] NSWSC 349; BC201602158 at [54] per Lindsay J. The public interest also operates in this context, his Honour added, in that an application for revocation of a grant, and a consequent reopening of issues otherwise settled, may be refused if there is no utility in allowing litigation to proceed, say, because the size of the estate is too small to warrant, or bear the cost of, further disputation (see, for example, Stanley v Stanley [2000] NSWSC 1133; BC200007770 at [33], [34] per Bryson J) or because the estate has been fully administered (see, for example, Richardson v Reardon [2006] NSWSC 1252; BC200609647 at [19]–[21] per Campbell J).

559. See, for example, Griffiths v Lewis (2013) 11 ASTLR 152; [2013] VSC 609; BC201314531; Hughes v Gardiner [2016] VSC 541; BC201607728. 560. [2005] 1 Qd R 105; [2004] QSC 269; BC200405523 at [18], [19] per Wilson J. 561. ACT s 32A(1)(a); NSW s 40C(1); NT s 42(1)(a); Vic s 9(1). The National Committee for Uniform Succession Laws has recommended equivalent provision be made in model legislation: QLRC, Report 65, Vol 2, p 485. 562. ACT s 32A(2); NSW s 40C(2); NT s 42(2); Vic s 9(2). 563. ACT s 32A(1)(b); NSW s 40C(3); NT s 42(1)(b). 564. See 11.94–11.97. 565. Monty Financial Services Ltd v Delmo [1996] 1 VR 65 at 77; BC9503941 per Ashley J; Dimos v Skaftouros (2004) 9 VR 584; [2004] VSCA 141; BC200405875 at [83], [84] per Dodds-Streeton AJA. 566. There is no requirement on the court to appoint a new administrator, a point made clear by the terms of the relevant section, which is clearer again than its predecessor (Administration and Probate Act 1907 (Vic) s 5(1)) on this point, which had in any case been held not to require a substitutionary appointment: Re Coverdale (deceased) [1909] VLR 248 at 249–50 per Cussen J (giving two examples: (1) where one of three co-executors is desirous of being discharged immediately after appointment; and (2) where one of several co-executors had to go away once the estate had almost been wound up, being the scenario before the court). 567. ACT s 32(2), (3); NT s 41(1); Vic s 34(1). 568. Accordingly, events occurring prior to the grant of representation are not relevant for the purposes of the statutory discretion (see, for example, Klement v Randles [2009] VSC 320; BC200906932 (aff’d Klement v Randles [2010] VSCA 160; BC201004291), where Davies J (at [12]) noted that Vic s 34(1) (c) is, in its terms, concerned only with the fitness of an executor after the grant or appointment, whereas the matters relied upon by the plaintiff concerned allegations before the plaintiff’s mother passed away), although this does not necessarily preclude their potential relevance to the exercise of the court’s inherent jurisdiction to revoke probate or administration (see, for example, Baldwin v Greenland [2007] 1 Qd R 117; [2006] QCA 293; BC200606166 at [4] per McMurdo P, albeit involving the appellant’s removal as executor and trustee because of, inter alia, his past record of mismanagement of the deceased’s affairs during the deceased’s lifetime). 569. Older Victorian authority to the effect that the word ‘unfit’ in the third dot point above referred to unfitness occasioned by a disqualification such as an adjudication of bankruptcy or a conviction for an offence, but not to unfitness indicated by a breach or neglect of duty (Re Turner [1923] VLR 189), has since been categorically rejected as an unjustified narrowing of the statutory language, which was intended to convey a power (that is, removal) that the court did not previously enjoy in its inherent jurisdiction: Monty Financial Services Ltd v Delmo [1996] 1 VR 65 at 73–7; BC9503941 per Ashley J; Morgan v Morgan [2000] VSC 445; BC200006650 at [23] per Beach J; Dimos v Skaftouros (2004) 9 VR 584; [2004] VSCA 141; BC200405875 at [7]–[9] per Winneke P, at [114]–[121] per Dodds-Streeton AJA. 570. Monty Financial Services Ltd v Delmo [1996] 1 VR 65 at 77; BC9503941 per Ashley J. 571. Hoxha v Hoxha (SC(Vic), Jenkinson J, 22 May 1975, unreported), endorsed by Warren CJ in Mirisklavos v Mouchtouris [2004] VSC 178; BC200403482 at [16]. See, for example, Morgan v Morgan [2000] VSC 445; BC200006650 (involving a failure to agree to a sale of the major asset of the estate within a reasonable period of time); Skaftouros v Dimos [2002] VSC 198; BC200203873 (where the executor’s conduct involved ‘serious neglect and laxity in the proper performance of his duties, a gross failure to respond to communications or to provide information, and a tendency to prefer his own interests over his duty to beneficiaries’: at [200] per Mandie J); Czapp v Cassar [2015] VSC 111;

572. 573.

574. 575.

576. 577. 578. 579. 580.

581. 582.

583.

BC201501920 (removal as a result of the executors failing to resolve relevant claims and issues expeditiously, unjustified withholding of information, delays in selling estate assets, coupled with their adversarial attitude: at [67] per Hargrave J). Old Colonists Association of Victoria v Cox (SC(Vic), Nathan J, 30 August 1991, unreported) BC9100630 at 4. Gowans v Watkins (SC(Vic), Teague J, 21 February 1996, unreported) BC9601257 at 28; Monty Financial Services Ltd v Delmo [1996] 1 VR 65 at 82–3; BC9503941 per Ashley J. See, for example, Fysh v Coote [2000] VSCA 150; BC200005175 at [21]–[25] per Ormiston JA, with whom Batt and Chernov JJA concurred; Manocchio v Wilson [2012] VSC 76; BC201201019 at [39]–[45] per Habersberger J. See 11.99, 11.100. It is an inability to act independently and to deal adequately with conflicts and potential conflicts that leads to the need to remove a personal representative: Fysh v Coote [2000] VSCA 150; BC200005175 at [25] per Ormiston JA, with whom Batt and Chernov JJA concurred. See also Gowans v Watkins (SC(Vic), Teague J, 21 February 1996, unreported) BC9601257 at 30 (remarking that ‘before the court would act in any situation of conflict of duty and interest so as to hold that the executor has been proved unfit to act as executor, either that situation must have already given rise to mischief of a level of seriousness that is reasonably high, or there must be a reasonably high level of risk of such mischief arising in the future’). ACT s 32(6); NT s 41(4); Vic s 34(4). ACT s 32(5); NT s 41(3); Vic s 34(3). Qld UCPR r 642. The court’s inherent and statutory power to remove trustees can then be activated: see Dal Pont, pp 654–8; Jacobs, pp 318–20. Morgan v MacRae [2001] NSWSC 1017; BC200106936 at [23], [24] per Young CJ in Eq. See also WA s 45(1) (‘The court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real and personal estate which an executor or administrator or Public Trustee may have in hand, or as to the residue of the estate, as the circumstances of the case may require), which has been held, apart from the powers of the court under its inherent jurisdiction, to be ‘sufficient to confer power upon the court to appoint an executor in place of an executor who is removed’: Porteous v Rinehart (1998) 19 WAR 495 at 517; BC9804413 per White J. QLRC, Report 65, Vol 2, p 465. Phelan v Booth (1941) 43 WALR 60 at 61 per Northmore CJ; Mavrideros v Mack (SC(NSW), Young J, 16 June 1997, unreported) BC9702623 (rev’d Mavrideros v Mack (1998) 45 NSWLR 80; BC9808010 but without casting doubt on this point); Porteous v Rinehart (1998) 19 WAR 495 at 506; BC9804413 per White J; Morgan v MacRae [2001] NSWSC 1017; BC200106936 at [21] per Young CJ in Eq; Gorman v McGuire [2002] NSWSC 1089; BC200207045 at [6] per Palmer J; Gould v Gould [2005] NSWSC 914; BC200507287 at [8], [9] per Camlbell J; Williams v Williams [2005] 1 Qd R 105; [2004] QSC 269; BC200405523 at [11] per Wilson J; Colston v McMullen [2010] QSC 292; BC201005574 at [39] per White J (aff’d Colston v McMullen [2011] QCA 164; BC201105127); Executor Trustee Australia Ltd v McDougall (2011) 110 SASR 462; [2011] SASC 140; BC201107312 at [19] per Kourakis J; Aravanis v Kelly [2012] NSWSC 733; BC201204800; Brown v Milson [2012] WASC 36; BC201200291. See also Tas PR r 82A(1) (‘where a judge is satisfied upon summons supported by an affidavit that a grant should be … revoked, he may make an order accordingly’). See, for example, Profilio v Profilio [1999] NSWSC 657; BC9903696 at [33] per Bryson J (‘Where the

584.

585. 586. 587. 588. 589. 590.

591. 592.

court’s inherent power is brought to bear on a grant which was originally made to more than one executor there is no departure from the real object of the inherent power, but rather a fulfilment of it if one executor is removed while the other is left to act under the earlier grant’); McKerracher v McKerracher [2011] NSWSC 1288; BC201109593 at [10]–[14] per White J (each case involving an application to remove one of two executors where there had been a grant of probate to them both). The suggestion by Young CJ in Eq in Morgan v MacRae [2001] NSWSC 1017; BC200106936 at [21] that Profilio was decided per incuriam was rejected by White J in McKerracher v McKerracher at [13]. Cf Lawless v Donaldson [2012] NSWSC 570; BC201203720 at [12] per White J (who saw the distinction in question as ‘not a matter of substance’); Riccardi v Riccardi (2013) 11 ASTLR 298; [2013] NSWSC 1655; BC201314676 at [9], [10] per Lindsay J (who remained open to persuasion to the Profilio view in a particular case, and accepted that ‘as a matter of jurisdiction, it is open to the court, in an appropriate case, to adopt the procedure of merely ordering the removal from office of one or more of a larger number of persons to whom a grant of administration (in the form of probate or letters of administration) has been made’: at [10]); Mullins-Trnovsky v Adams (2014) 121 SASR 155; [2014] SASC 116; BC201406658 at [30] per Gray J (remarking that ‘[t]he reason that the revocation of a grant of probate is synonymous with the removal of an executor in many of the decided cases is that there was no meaningful alternative order available to the court. It is to be noted in this regard that a court should only revoke a grant of probate where there is no other appropriate remedy’). Mullins-Trnovsky v Adams (2014) 121 SASR 155; [2014] SASC 116; BC201406658 at [33], [34] (paragraph break omitted). See also Riccardi v Riccardi (2013) 11 ASTLR 298; [2013] NSWSC 1655; BC201314676 at [9] per Lindsay J. See 11.94–11.104. That persons are often appointed as ‘executors and trustees’, attendant to which the office of executor translates to one of trustee, coupled with the fact that the court has an inherent (as well as statutory) jurisdiction to remove trustees, also explains the courts’ use of terminology in this context. The translation to trusteeship can occur for different assets at different times: see 10.45, 10.46. As to this jurisdiction, see Dal Pont, pp 654–8. See 11.95. Fysh v Coote [2000] VSCA 150; BC200005175 at [20] per Ormiston JA, with whom Batt and Chernov JJA concurred (‘although the principle stated in Miller v Cameron [(1936) 54 CLR 572; BC3600025, directed to the welfare of the beneficiaries] referred to a trustee and the duties of a trustee, there was no reason why the principles should not apply to an executor’); Dimos v Skaftouros (2004) 9 VR 584; [2004] VSCA 141; BC200405875 at [13] per Winneke P; Re Tsaknis [2010] WASC 152; BC201004162 at [62] per E M Heenan J (aligning the two inquiries). See Dal Pont, pp 654–8; Jacobs, pp 318–20. See v Hardman [2002] NSWSC 287; BC200202152 at [20] per Bryson J. ‘Good faith’ in this context has been held to mean acting with an honest mind and honest purpose, such that mere notice of a claim challenging the validity of the probated will does not of itself negate good faith: Public Trustee v Guardian, Trust, and Executors Co of New Zealand Ltd [1939] NZLR 613 at 662 per Ostler J, at 669, 674–5 per Smith J, ay 676 per Fair J (aff’d Guardian Trust and Executors Co New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115) (dealing with corresponding provisions in English legislation in force at the time in New Zealand, namely the Court of Probate Act 1857 (UK) ss 77, 78); Dickson v Holley [2013] NSWSC 18; BC201300224 at [191]–[194] per White J (remarking that the words ‘in good faith’ do not import an element of ‘constructive fraud’ based on notice (at [191]), but conceding that ‘notice of a claim that a will is invalid may well affect an assessment of an executor’s honesty in making a distribution with notice’: at [192]).

593. ACT s 32B(1)(b) (assuming compliance with ACT s 9B: see 11.10); NSW s 40D(1), (2); NT s 43(1) (b) (assuming compliance with NT s 16: see 11.10); Vic s 10(a). The New South Wales and Victorian provisions add that this does not prejudice the right of any person to follow assets into the hands of the persons or any of them among whom the assets may have been distributed, or who may have received them: NSW s 40D(3); Vic s 10(b) (other than purchasers for value without notice that the person supposed to be dead was actually alive at the date of the grant). In the Australian Capital Territory, a person entitled to any property that has been distributed by the personal representative may apply to the court for an order under ACT s 32B(2): ACT s 32B(1)(d). Under ACT s 32B(2), if the court is satisfied that the applicant is the person entitled to the property and that the respondent to the application is the appropriate person in relation to the property, the court may make an order directing the respondent: (a) if the respondent is in possession of the property — to return the property to the applicant or pay to the applicant the sum the court considers reasonable in the circumstances; or (b) in any other case — to pay to the applicant the sum the court considers reasonable in the circumstances. The ‘appropriate person’ is: (a) if the person to whom the property was so distributed is alive — that person; or (b) if the person to whom the property was so distributed is dead — the executor of the will or administrator of the will or estate of that person or a person who has benefited as a result of the property having been distributed to that person: ACT s 32B(3). 594. ACT s 32B(1)(c); NSW s 40D(3); NT s 43(1)(c); Vic s 10(b). Except in Victoria, the legislation adds that no action lies against the Registrar-General for loss suffered by any person following the registration of a land dealing under the Torrens land legislation that the personal representative lawfully made before the revocation (ACT s 32B(1)(e); NSW s 40D(3A); NT s 43(1)(d)) but it appears that this provision is superfluous in view of ACT s 63; NSW s 91(1); NT s 95 (see below n 597). 595. ACT s 32B(1)(f); NSW s 40D(5); NT s 43(1)(e); Vic s 10(d). 596. ACT s 32B(1)(a); NSW s 40D(1), (2); NT s 43(1)(a); Vic s 10(a). This is expressed, for the avoidance of doubt, not to affect any entitlement of a personal representative to commission, or to any protection, indemnity, reimbursement or right under any other section of the legislation: ACT s 32B(4); NSW s 40D(2); NT s 43(2)(a); Vic s 10(a). 597. ACT s 63; NSW s 91(1) (although the indemnity and protection so conferred applies only in relation to property of the estate of the deceased that is listed in a document issued by the court in relation to the probate, administration or order: NSW s 91(2)); NT s 95; Qld s 53(1); Tas s 28(1); Vic s 31(1); WA s 47. This provision is based on s 27(1) of the Administration of Estates Act 1925 (UK). 598. Qld s 53(2) (extends to events occurring before the grant); Tas s 28(2); Vic s 31(2) (extends to events occurring before the grant); WA s 46(1). This provision is based on s 27(2) of the Administration of Estates Act 1925 (UK). 599. (1789) 3 Tr 125; 100 ER 490. 600. Allen v Dundas (1789) 3 Tr 125 at 130; 100 ER 490 at 492 per Buller J. The court accepted, however, that the same could not be said where it proves that the person allegedly deceased is, or was at the time representation was granted, in fact still alive. In these circumstances, historically the Ecclesiastical Court lacked jurisdiction, and so any grant of probate would have been a nullity: at 129; 492 per Ashhurst J, at 130; 492 per Buller J. 601. Allen v Dundas (1789) 3 Tr 125 at 133; 100 ER 490 at 494 per Grose J. 602. ACT s 62; NSW s 90(2); NT s 94; Qld s 53(2); Tas s 28(2); Vic s 31(2); WA s 46(2). 603. Qld s 53(3); Tas s 37; Vic s 42. 604. [1914] 2 Ch 13.

605. Hewson v Shelley [1914] 2 Ch 13 at 29. See also at 30 per Buckley LJ (otherwise ‘it is difficult to see how any one could ever accept a conveyance from a legal personal representative’), at 45 per Phillimore LJ (‘To hold otherwise than as we are holding would make all titles of the representatives of dead persons uncertain’). 606. Beeson v West Australian Trustee, Executor and Agency Company Ltd (1929) 31 WALR 108 at 111 per Burnside J. 607. See Queensland Law Reform Commission, The Law Relating to Succession, Report No 22, 1978, p 37. 608. Qld s 53(4). 609. This assumes that the legacy or asset is not one payable or distributable to that person under the subsequent grant. 610. Qld s 53(5). 611. SA s 43(1). 612. SA s 43(2). 613. SA s 43(3). 614. ACT s 31; NSW s 81(1), (2); NT s 40; Qld s 53(6); SA s 42; WA s 41. The New South Wales legislation adds that, if the grant of probate or administration is revoked where it transpires that the (supposed) deceased is in fact still alive (NSW s 40C: see 11.103), the court in which the proceedings are pending may instead order that the proceedings be continued in the name of such person as the court directs as if the proceedings had been originally commenced by or against that person, but subject to such conditions and variations, if any, as the court directs, or the court may stay the proceedings on such terms in respect of costs or otherwise as it thinks just: NSW s 81(3). 615. Tas s 20; Vic s 23. The more limited coverage in these jurisdictions follows the English model found in s 17 of the Administration of the Estates Act 1925 (UK). 616. Public Trustee Regulations 2009 (Tas) reg 8(3). 617. ACT s 87B(1), (4); Public Trustee Act 1930 (Tas) s 20A(1), (2). 618. ACT s 87B(2), (3); Public Trustee Act 1930 (Tas) s 20A(1), (4) (deemed to be the executor or administrator). 619. Pursuant to ACT s 88: see 10.34. 620. The content of the election is prescribed by ACT s 87C(2), (3). 621. ACT s 87C(1). 622. ACT s 87C(4). 623. ACT s 87C(5). 624. ACT s 87C(6)–(11). 625. These powers are conferred by Public Trustee Act 1930 (Tas) s 21: see 11.77. 626. Public Trustee Act 1930 (Tas) s 20A(5); Public Trustee Regulations 2009 (Tas) reg 8(4). 627. See NSW Trustee and Guardian Regulation 2008 (NSW) reg 35(3). 628. NSW Trustee and Guardian Act 2009 (NSW) s 31(1), (2); NSW Trustee and Guardian Regulation 2008 (NSW) reg 36A. 629. NSW Trustee and Guardian Act 2009 (NSW) s 31(3). 630. NT s 6(1). 631. See NT s 110A(8); Administration and Probate Regulations 1983 (NT) reg 2A(3). 632. NT s 110A(1), (2). The notice is to be by advertisement in a newspaper published in the Northern Territory and is to contain the prescribed information (listed in the Administration and Probate Regulations 1983 (NT) reg 2B): NT s 110A(3). 633. NT s 110A(4). 634. Being the threshold amount prescribed for the purposes of NT s 110B(1) (see 11.116): NT s 110B(6); Administration and Probate Regulations 1983 (NT) reg 2A(4).

635. 636. 637. 638. 639.

640. 641. 642. 643. 644. 645. 646. 647.

648. 649. 650.

651.

652. 653.

NT s 110A(5). NT s 110A(6). As to elections, see 11.115–11.118. Public Trustee Act 1978 (Qld) s 35. In the Australian Capital Territory the court may, however, empower the Public Trustee to collect and administer the estate of a deceased person if it is satisfied that there is reasonable ground to suppose that the person died intestate leaving property within the jurisdiction: ACT s 92(1). The order empowers the Public Trustee to perform the functions of a personal representative in like way as if the Public Trustee had obtained an order to collect and administer the estate: ACT s 92(2). The Public Trustee must not, however, proceed to any distribution of the assets without an order of the court specially authorising the distribution: ACT s 92(3). Re McQuillan [2016] VSC 647; BC201609190 at [16] per McMillan J. QLRC, Report 65, Vol 3, p 97. As to what the election must set out, see NSW Trustee and Guardian Act 2009 (NSW) s 26(2); Trustee Companies Act 1964 (NSW) s 15A(2). NSW Trustee and Guardian Act 2009 (NSW) s 26(1); Trustee Companies Act 1964 (NSW) s 15A(1). The National Committee for Uniform Succession Laws, in its recommendation relating to elections in this context, has favoured a ‘net value’ approach, reasoning that the gross value of an estate may not necessarily reflect its real value: QLRC, Report 65, Vol 3, p 105. See NSW Trustee and Guardian Regulation 2008 (NSW) reg 35(1); Trustee Companies Regulation 2016 (NSW) reg 4(1). NT s 6(1). NT s 110B(1), (6); Administration and Probate Regulations 1983 (NT) reg 2A(4). The requirements for an election are prescribed by NT s 110B(2). The National Committee for Uniform Succession Laws has recommended that the Northern Territory provision form the foundation for model legislation, albeit replacing the term ‘professional personal representative’ with ‘professional administrator’, and setting the net value threshold at $100,000 (subsequently indexed for inflation): QLRC, Report 65, Vol 3, pp 99, 105. Public Trustee Act 1978 (Qld) s 30(1). Trustee Companies Act 1968 (Qld) s 12(1). In Tasmania see Public Trustee Act 1930 (Tas) s 20(1); Public Trustee Regulations 2009 (Tas) reg 8(1); Trustee Companies Act 1953 (Tas) s 10A(1), (2); Trustee Companies Regulations 2016 (Tas) reg 4(1) ($80,000 threshold). In Victoria see Vic ss 71(1A), 79 ($100,000 threshold, albeit adjusted for inflation: see Vic s 71(1B)) (as from 1 January 2015, pursuant to the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic); prior to this date the Victorian legislation set a higher ($50,000) threshold for trustee company elections and a lower ($25,000) one for State Trustees elections, although it remained at $50,000 in some instances: Vic ss 71, 79 (in their earlier iteration); Trustee Companies Act 1984 (Vic) s 11A(1)–(4) (repealed)). In Western Australia see Public Trustee Act 1941 (WA) s 14(1), (3), (6); Trustee Companies Act 1987 (WA) s 10(1); Trustee Companies Regulations 1988 (WA) reg 4 ($50,000 threshold). NSW Trustee and Guardian Act 2009 (NSW) s 26(3); Trustee Companies Act 1964 (NSW) s 15A(3); NT s 110B(3); Public Trustee Act 1978 (Qld) s 33(1); Trustee Companies Act 1968 (Qld) s 12(2); Public Trustee Act 1930 (Tas) s 20(2); Trustee Companies Act 1953 (Tas) s 10A(3); Public Trustee Act 1941 (WA) s 14(2); Trustee Companies Act 1987 (WA) s 10(2). Vic s 79(2), (3). Vic s 79(3A).

654. As to what the election must set out, see NSW Trustee and Guardian Act 2009 (NSW) s 27(2); Trustee Companies Act 1964 (NSW) s 15AA(2). 655. As to administration de bonis non (‘of the goods not administered’), see 11.43. 656. NSW Trustee and Guardian Act 2009 (NSW) s 27(1); Trustee Companies Act 1964 (NSW) s 15AA(1). 657. See NSW Trustee and Guardian Regulation 2008 (NSW) reg 35(1); Trustee Companies Regulation 2016 (NSW) reg 4(1). 658. NT s 110C(1), (6). The requirements for an election are prescribed by NT s 110C(2). The National Committee for Uniform Succession Laws has recommended that the Northern Territory provision form the foundation for model legislation, albeit replacing the term ‘professional personal representative’ with ‘professional administrator’, and setting the net value threshold at $100,000 (subsequently indexed for inflation): QLRC, Report 65, Vol 3, pp 119–20. 659. Public Trustee Act 1978 (Qld) s 30(2). 660. NSW Trustee and Guardian Act 2009 (NSW) s 27(3); Trustee Companies Act 1964 (NSW) s 15AA(3); NT s 110C(3); Public Trustee Act 1978 (Qld) s 33(1). 661. For the NSW Trustee, the amount prescribed for this purpose is $120,000: NSW Trustee and Guardian Regulation 2008 (NSW) reg 35(2). There is no amount prescribed by the Trustee Companies Regulation 2016 (NSW) for this purpose. For a professional personal representative in the Northern Territory, the amount prescribed remains $85,000: ss 110C(1), (6). In Queensland, for the Public Trustee the amount prescribed for this purpose is $180,000, and for a trustee company it is $120,000: Public Trustee Act 1978 (Qld) s 33(2); Trustee Companies Act 1968 (Qld) s 12(7). In Tasmania the amount prescribed is $85,000: Public Trustee Regulations 2009 (Tas) reg 8(2); Trustee Companies Regulations 2016 (Tas) reg 4(2). In Western Australia the amount prescribed is $50,000: Public Trustee Act 1941 (WA) s 14(6); Trustee Companies Regulations 1988 (WA) reg 4. 662. NSW Trustee and Guardian Act 2009 (NSW) s 28; Trustee Companies Act 1964 (NSW) s 15AB; NT s 110B(5); Public Trustee Act 1978 (Qld) s 33(2); Public Trustee Act 1930 (Tas) s 20(4); Trustee Companies Act 1953 (Tas) s 10A(6); Public Trustee Act 1941 (WA) s 14(4); Trustee Companies Act 1987 (WA) s 10(3). 663. Public Trustee Act 1978 (Qld) s 33(3); Public Trustee Act 1930 (Tas) s 20(5); Trustee Companies Act 1953 (Tas) s 10A(7); Public Trustee Act 1941 (WA) s 14(5); Trustee Companies Act 1987 (WA) s 10(4). 664. Public Trustee Act 1941 (WA) s 10(4). 665. Public Trustee Act 1941 (WA) s 10(5). 666. Parallel provisions exist in New Zealand: see Administration Act 1969 (NZ) ss 64–67. 667. QLRC, Report 65, Vol 3, pp 158–9. 668. QLRC, Report 65, Vol 3, pp 165–6 (favouring a provision akin to Vic s 32, except subject to a $15,000 monetary limit, and not confined to payments by an employer). 669. The regime preceding 1 January 2015 is found in Vic s 32 (in its iteration at the time), and is catalogued at 11.120 in the first edition of this work. 670. Being the greater of $25,000 or, if an amount is calculated in accordance with Vic s 31B (which is broadly the $25,000 adjusted for inflation: Vic s 31B(1)), that amount: Vic s 31A(2). 671. Vic s 31A(1). 672. Vic s 31A(3). 673. Vic s 31A(4). 674. Vic s 31A(5). 675. ‘Government employee’ means a person employed in the service of the Crown whose remuneration

is paid out of money under the control of the Treasurer: SA s 71(4). 676. ‘Government hospital’ means an institution declared by the Treasurer by notice in the Gazette to be a Government hospital for this purpose: SA s 71(4). 677. ‘Spouse’, in relation to a deceased person, means a person who was legally married to the deceased as at the date of his or her death: SA s 4. 678. ‘Domestic partner’, in relation to a deceased person, means a person declared under the Family Relationships Act 1975 (SA) to have been the domestic partner of the deceased as at the date of his or her death (see 16.42): SA s 4. 679. SA s 71(1), (1a). 680. SA s 71(3). 681. SA s 72(1). 682. SA s 72(2). 683. SA s 72(3). 684. The statute refers to $1200 ‘or such other amount as may for the time being be declared by proclamation’. In 1983 the amount was set at $6000 (Western Australia, Government Gazette, No 100 of 1983, 30 December 1983, 5015), but was raised to $50,000 by proclamation dated 30 December 2008 (Western Australia, Government Gazette, No 15 of 2009, 243). This followed longstanding calls for it to be raised to take account of inflation: Law Reform Commission of Western Australia, The Administration Act 1903, Project No 88, 1990, p 20; Probate Rules Committee (WA), Final Report on the Revision of the Non-contentious Probate Rules 1967 of WA, 10 June 2002, 9.2. 685. WA s 139(1). 686. Land Titles Act 1925 (ACT) s 135(2); Real Property Act 1900 (NSW) s 93(2); Land Title Act 2000 (NT) s 129(2); Real Property Act 1886 (SA) s 176; Land Titles Act 1980 (Tas) s 99; Transfer of Land Act 1958 (Vic) s 49; Transfer of Land Act 1893 (WA) s 187. 687. Land Title Act 1994 (Qld) s 111(1), (2). 688. Land Title Act 1994 (Qld) s 112.

[page 410]

CHAPTER 12

Duties of Personal Representatives Introductory Observations Core duties Standard of care expected Lay personal representative Professional personal representative

12.1 12.1 12.2 12.2 12.3

Duty to Arrange Disposal of Deceased’s Remains Where executor nominated Where no executor nominated

12.4 12.5 12.9

Duty Relating to Substantiating the Estate Identifying and getting in the estate Duty to file inventory of assets and liabilities Standing to pursue claims Defending claims Discharging of contractual obligations Duty to discharge the deceased’s contractual obligations Pursuing available avenues to avoid obligation Where contractual claim subject to limitation Survival of personal actions for and against the deceased

12.11 12.11 12.12 12.13 12.14 12.15 12.15 12.16 12.17 12.19

Fiduciary Duties

12.21

Duty Relating to Preservation of Estate

12.24

Duty to Act Personally Duty stems from office being personal Qualifications to the duty

12.26 12.26 12.27

Circumstances where delegation is legitimate Employment of agents Duty to Account At general law Pursuant to statute Australian Capital Territory and Queensland New South Wales Northern Territory South Australia

12.27 12.28 12.30 12.30 12.33 12.34 12.35 12.37 12.38 [page 411]

Tasmania Victoria Western Australia Breach of Duty Remedies for breach of duty Devastavit Equitable remedies for fiduciary breach(es) Administration actions Account on the basis of wilful default Failure to properly distribute the estate Summary application for legacy Application for court order under statute — Queensland and South Australia Personal representative’s liability for waste or conversion by executor Liability for defaults of other personal representatives Defences to breach of duty Beneficiaries’ consent, acquiescence or release Exoneration clause Court’s jurisdiction to relieve against breach Elapsing of time — limitations legislation

12.39 12.40 12.41 12.43 12.43 12.44 12.45 12.46 12.47 12.49 12.50 12.51 12.52 12.53 12.56 12.56 12.57 12.58 12.59

Introductory Observations Core duties 12.1 Unless he or she effectively renounces the role,1 a person who is named as an executor in an ostensibly regular will is obliged to prove the will — by making an application for probate2 — provided that there is an estate that requires administration and there are no vitiating factors.3 There is no corresponding obligation where the alleged testamentary document has not been executed in compliance with the statutory formalities, at least not unless there is a solid case to establish an informal will.4 Once the will is proved, the principal obligations of an executor, having been confided the execution of the testator’s will, is to get in estate assets,5 pay expenses and liabilities of the testator, and then distribute the residue of the estate in accordance with the will and [page 412] produce accounts.6 If the will makes no (or only partial) provision for how the assets are to be distributed, the executor must distribute the unallocated share of the estate according to the rules applicable to intestacies.7 As the incidents underscoring the duties of personal representatives in distributing the estate are heavily regulated, they are addressed in a separate chapter.8 The duties imposed on, and the powers and rights granted to, executors by the general law and statute are thus directed chiefly at ensuring that these functions can be expeditiously performed in a fashion consistent with the nature of the executorial office. As the functions of an executor parallel those of an administrator — except that an administrator, other than one cum testamento annexo, distributes the estate not in accordance with a will but in line with the intestacy rules — it stands to reason that the law imposes on administrators broadly the same duties, and entitles them to broadly the same rights, as executors.9 It follows that, unless stated otherwise, the duties mentioned below apply to each form of personal representative.

Standard of care expected Lay personal representative 12.2 The standard the law expects of personal representatives, in carrying out duties and powers in that capacity, aligns to that expected of trustees. After all, while personal representatives’ duties do not equate to those of trustees, the core aspects of each role — involving the holding of property for the benefit of others pursuant to a direction of its original owner — are not dissimilar. The law expects that trustees, at a minimum, act to the standard of an ordinary prudent businessperson.10 To the extent that a personal representative’s role does not involve managing the deceased’s property to produce income for beneficiaries, it may be apt to replace the term ‘businessperson’ in this formulation with the simpler ‘person’. However formulated, it is clear that ‘[a] scarcely attainable standard of perfection in their work’ is not required of personal representatives.11 It is expected, rather, that they ‘act prudently and properly in the management of the estate as a whole’.12 [page 413]

Professional personal representative 12.3 Where a personal representative acts in a professional capacity, though, a higher standard applies.13 An executor or administrator who is a legal practitioner must meet the minimum standard required of persons in that profession, and a higher standard again if the practitioner is or claims to be a specialist in the succession field.14 Similarly, more can be expected of a trustee company or the Public Trustee (or equivalent) that acts as personal representative, and charges fees for so acting, than a lay personal representative. So far as concerns the Public Trustee, it has been judicially observed that ‘the Public Trustee does not merely have the duties and responsibilities which are required of every administrator and trustee’, but that, as a statutory entity, ‘the highest standards of integrity and efficiency are expected’.15

Duty to Arrange Disposal of Deceased’s Remains 12.4 Ordinarily the first obligation, temporally speaking, of a personal representative following the death of the deceased is to arrange for disposal of the deceased’s remains. This includes engaging undertakers and taking steps to arrange the funeral. Although a duty of the personal representative, the cases often speak in terms of his or her authority to perform these tasks, usually against the backdrop of disputes between family members over funeral arrangements and the disposal of the remains. Scope for dispute may also arise where the deceased nominated no executor, wherein the issue targets who has the greatest interest to be appointed, or to act, as administrator.16 This justifies separate treatment of executors and administrators in the material below.

Where executor nominated 12.5 The common law has consistently sided against there being property in a dead body, and with it the notion that a deceased’s body is capable of ownership by another person.17 At the same time, the law cannot ignore the necessity for someone to make decisions regarding the disposal of a corpse. The law, to this end, decrees that person to be the executor of the deceased’s will, where there is one, or otherwise the person who is (to be) appointed as administrator of [page 414] the deceased’s estate.18 A New Zealand judge explained the reasons underscoring this in the following terms:19 This clear rule concerning the duty of the executor to arrange for disposal of a body serves the need for a prompt decision on the manner of disposal when differences arise among those who were close to the deceased. The common law imposes the duty on the person to whom the deceased entrusted responsibility for the administration of property in his or her estate. The executor, being chosen for that purpose, is seen as appropriate to decide the question of disposal. That person is also in a good position to decide on the manner of disposal, having regard to the extent of the estate which bears the cost. The common law approach also has the advantage of clarity and certainty over who has the responsibility if there is disagreement.

This approach, his Honour added, is ‘practical and convenient’, as it ‘will often avoid anyone going to court over their differences because the parties accept or acquiesce in what the personal representative decides’ and thereby ‘will often serve the desirability of expedition in a matter which is the occasion of feelings of great grief and loss, while also allowing relevant matters to be addressed’.20 The personal representative has, for this purpose, a right to possession of the deceased’s body,21 and with this a right to choose how the body is to be disposed, including by burial or cremation.22 Where the latter is chosen, the personal representative is likewise entitled to possession of the ashes, and to direct their final disposal. In so ruling in Robertson v Pinegrove Memorial Park Ltd, Waddell CJ in Eq reasoned as follows:23 [I]t is my view that an executor has a right to possession of the ashes of a deceased who has been cremated to direct how they shall finally be disposed of and that this right will be supported by a court, particularly where the executor intends to act in accordance with the wishes of the deceased. I reach this conclusion by way of analogy from the rule of the general law that an executor has a right to possession of the corpse of the deceased for the purpose of its lawful disposal by burial or cremation or otherwise, which right, it seems to me, should be taken to extend to the ultimate disposal of the remains.

[page 415] As a deceased’s ashes, at least to the extent that they are not scattered in a non-recoverable manner, remain capable of being possessed by the executor (or administrator) — unlike a corpse, the possession of which is relinquished upon burial — the issue necessarily arises as to the executor’s duty and interest in this regard. In this context, as the ashes do not form part of the estate that passes under the will (or intestacy), it stands to reason that ashes preserved in specie can legitimately be the subject of ordinary rights of property, albeit coloured by the need for ‘appropriate respect and reverence’ stemming from their nature.24 The courts have utilised the vehicle of a trust to reflect the executor’s interest and duty vis-à-vis the ashes, to be held for the purpose of disposing or dealing with them in a way that seems appropriate having regard to any direction of the deceased and to the claims of the relatives or others with an interest.25 12.6

An executor’s right and duty to dispose of the deceased’s body derives

from the executor drawing title from the deceased’s will,26 wherein the deceased’s wishes were expressed. Yet the deceased’s wishes as to funeral arrangements and the ultimate disposal of his or her body (including the content of the headstone)27 are, it has been held, not binding on the executor.28 It is reasoned that, consonant with there being no property in a corpse, it is not competent for a person to dictate the disposition of his or her own body, whether by will or otherwise.29 Moreover, it appears that judges, though keen to ensure an executor implements the deceased’s wishes as to the distribution of the estate, are less comfortable with making determinations on personal matters relating to the deceased’s burial or cremation.30 These, it is assumed, are properly left to the person the deceased has appointed as his or her representative, whose decision is then ‘a surrogate extension of the deceased’s own decisions’.31 This has not precluded calls to extend freedom of testation to enforcing a testator’s directions as to the disposal of his or her body.32 [page 416] 12.7 In any event, that a deceased’s wishes (or directions) here do not bind the executor is no licence to entirely ignore them. The case law expects executors to pay regard to the deceased expressed wishes33 and his or her cultural and spiritual values, if relevant.34 In the course of decision-making regarding disposal of the deceased’s corpse more generally, it expects (but not mandates) that executors will consult with persons interested35 and will not make choices that exclude friends and relatives from expressing their affection for the deceased in a reasonable and appropriate manner.36 These matters — directed as they are to process more so than outcome — are, it seems, amenable to being enforced by way of application to the court. Provided that an executor gives considerations to the foregoing, however, he or she is not precluded from acting in line with a personal view as to what is appropriate in the circumstances.37 12.8 The above must be read subject to effective directions by the testator devoting some or all of his or her body or organs for medical or scientific purposes, which statute requires to be followed.38 It must also be read subject

to any other statutory provisions directed to holding the deceased’s wishes as to the disposal of his or her corpse, chiefly related to directions for and against cremation.39

Where no executor nominated 12.9 More challenging issues have arisen where the deceased left no will, and thus appointed no executor. What is clear is that, consistent with the law applicable to executors, it is the person(s) (to be) appointed as administrator(s) that have decision-making authority regarding the disposal of the deceased’s body.40 The difficulty stems from the fact that, unlike executors, administrators do not derive their authority from the deceased’s will but from a court order accepting their claim to administration.41 The law does not empower a court to [page 417] give directions as to how a corpse should be disposed; it only empowers the court to appoint an administrator who then makes this decision.42 As decisions relating to funeral, and burial or cremation, arrangements must ordinarily be made proximate to the deceased’s death, at that stage it is unlikely that the court will have been presented with the opportunity of ordering the appointment of an administrator.43 Nor can a court make a conclusive presumption that a particular person will be ultimately granted administration. To address this temporal difficulty, the courts have adopted a practical solution: to attempt to identify ‘as best as is possible’ at this early stage the person most likely to obtain the grant of administration, and to then treat that person, for the purpose of making decisions as to the disposal of the deceased’s body, in the same way as if he or she had been appointed executor.44 As the grant of administration ‘follows interest’,45 the person with the largest interest is normally charged with diposing of the body46 (and if two or more persons rank equally for this purpose, the practicalities of burial without unreasonable

delay determine the issue).47 Though this is the usual approach rather than an unyielding rule,48 it has been said that ‘it would have to be an extremely rare case to depart from the usual approach’,49 for the following reason:50 If the ‘common or usual approach’ is not applied on nearly every occasion, then we might soon have the spectacle of intending applicants for a grant of letters of administration seeking injunctions to restrain any dealing with the body until there had been such a grant. That would be a most unsatisfactory course in practical terms. It is much better that the decision be made expeditiously and finally …

12.10 The curial tendency is to favour the deceased’s surviving spouse (whether de jure or de facto) ahead of his or her sibling(s), parent(s) or children.51 Conversely, in Jones v Dodd,52 where the deceased’s former de facto spouse and the deceased’s father disputed the location of the deceased’s burial, Perry J favoured the father. In a ruling with which Millhouse and Nyland JJ agreed, his Honour was influenced by the ‘cultural, spiritual and religious factors’ attending to the deceased’s Aboriginality, and unchallenged evidence that the views of the head of the family should prevail in such matters.53 But where the cultural or religious evidence points in [page 418] different directions, the closeness of the relevant relationship(s) must be more closely probed, and may ultimately prove decisive.54 In Jones v Dodd there was practically no estate, and as a result there was unlikely ever to be an application for administration. Perry J opined that in such a case ‘an approach based on extent of interest, or entitlement to apply for a grant, takes on an air of unreality’.55 Instead his Honour preferred an approach that pays regard ‘to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question’.56 Yet it seems odd that the right to determine a deceased’s burial arrangements should rest in part on whether or not the deceased has left an estate of any substance. It is hardly outside the province of the court, in an effort to promote consistency and to discourage disputes, to make a determination of who would have been best qualified to obtain the grant of

administration, were such a grant sought.57

Duty Relating to Substantiating the Estate Identifying and getting in the estate 12.11 Beyond arranging for the disposal of the deceased’s remains, the most basic initial obligation of an executor or administrator is to identify the assets that form the estate of the deceased. Once these are identified, to the extent that they have yet to vest or come under his or her control, the personal representative must take steps to secure this outcome. As noted below,58 there may be claims against the estate that have survived the deceased’s death, which the personal representative is, as a general principle, obliged to defend. At the same time, the estate may have claims against third parties for the recovery of money or property, which must, again as a general principle, be pursued,59 although this does not preclude the personal representative from exercising a power to compromise the claim if appropriate.60

Duty to file inventory of assets and liabilities 12.12 Other than in the Australian Capital Territory and Queensland, statute or rules oblige applicants for a grant of representation to file in the court an inventory of assets and liabilities, including the value of each item.61 In New South Wales and South Australia disclosure of an asset is a prerequisite to the personal representative’s power to complete its disposition,62 [page 419] but this does not prejudice the interest in any property so acquired by a person in good faith, for valuable consideration and without notice of its nondisclosure to the court.63

Standing to pursue claims

12.13 As an executor or administrator ‘represents’ the estate, he or she is ordinarily the proper plaintiff to pursue proceedings on behalf of the estate, as part of the duty to get in the entire estate. The beneficiaries of the estate ordinarily lack standing to pursue this action precisely because a person has been appointed, under the will or by the court, to represent their interests. In this context, it has been judicially observed that a party ‘should not lightly be entitled to, in effect, step into the shoes of an executor’.64 However, where a personal representative fails to pursue a matter relating to the estate, scope exists for a disgruntled beneficiary to institute a suit, in his or her own name, to compel the personal representative to protect the beneficiary’s interest in the estate, even if that interest is no more than contingent.65 Or where the executors are also beneficiaries, giving rise to a legitimate concern that they may yield to the attendant conflict of interest, other beneficiaries’ intervention may be justified.66 Relevant legal principles here align with those applicable in trust law, although the reference in some of the cases to the need for ‘exceptional circumstances’ arguably presents a lower hurdle than appears.67

Defending claims 12.14 Consistent with the duty to execute the terms of the testator’s will, an executor must uphold those terms, and thus where appropriate defend the estate from claims he or she believes lack legitimacy.68 This involves, for instance, defending family provision claims by persons alleging that the testator failed to make adequate provision for their proper maintenance and the like.69 This does not mean that executors must unthinkingly defend any claim against the estate, assured that their costs will be borne by the estate in the event that the defence proves unsuccessful. An executor must exercise a judgment as to the legitimacy of the claim and, it is said, make ‘every effort’ to ‘avoid costly litigation if that can be avoided’.70 Clearly, claims grounded in debt against the estate, which cannot reasonably be disputed, must be met rather than defended. Nor should a compelling family provision claim be litigated at the expense of the estate unless the executor has made a reasonable attempt at settling the claim, usually via an offer of settlement, which the claimant rejects.71

[page 420]

Discharging of contractual obligations Duty to discharge the deceased’s contractual obligations 12.15 As part of their role, executors are responsible for discharging the contractual obligations of the deceased.72 The duty has been judicially described as one to perform all contracts of the testator ‘that can be enforced against him, whether by way of specific performance or otherwise’.73 A leading case, albeit one involving an intestacy, and thus the duty of an administrator — to whom the same duty applies in this regard — is Cooper v Jarman.74 There an intestate contracted with builders to erect a house on land belonging to him but died before its completion. Upon its later completion, one of the intestate’s administrators paid the builder the cost of the completion out of the intestate’s estate. It was argued that the administrator’s duty was to commit a breach of the contract entered into by the intestate, inasmuch as it was one of which equity would not have decreed specific performance, and to pay the builder the damages occasioned by that breach. Lord Romilly responded that it could not be good law:75 … that an administrator is bound to do an injury and inflict damages upon a person with whom the intestate had entered into a contract, and to prevent that person from completing his contract because, by so doing, he would increase the personal estate of the intestate.

His Lordship rejected the contention that an administrator’s duty in this connection depends in any way upon whether or not the contract is one amenable to specific performance. The deceased having assumed the contractual obligation to pay, it was not for the administrator to effect an ‘efficient breach’, where the estate could meet that obligation. An administrator who elected to breach and pay damages might, in any event, be charged by the beneficiaries of the estate with having paid more than a court would have awarded. And if the administrator breached the contract and then litigated the damages payable, the damages ultimately awarded, coupled with the costs of the suit, might exceed the cost of completing the contract. So both to uphold contractual bargains, and to avoid undue risk to the estate, there is ‘good sense’76 in a personal representative being obliged to fulfil the deceased’s

pre-existing contractual commitments.

Pursuing available avenues to avoid obligation 12.16 The foregoing does not mean that personal representatives should eschew available opportunities to reach an arrangement with the other contracting party that could prove more advantageous to the estate than fulfilling the terms of the contract.77 Ultimately this matter may be more one of negotiation than legal obligation. But if the contract in question is not [page 421] legally enforceable against the deceased — say, where it fails to fulfil applicable statutory writing requirements — and would be disadvantageous to the estate to perform, the personal representative is not justified in devoting any of the estate to its fulfilment. Cotton LJ in Re Rownson,78 in refusing to envisage that an executor or administrator should pay a sum under a contract that fails to meet the requisite formalities, opined that ‘[i]t is difficult to see how an executor or administrator can retain a debt on which if vested in another person no action could be maintained’. Bowen LJ added that, as a matter of principle, ‘it is clearly his duty not to waste an estate not his own, which he is administering for the benefit of others, in satisfying demands that are equally untenable in law and in equity’.79 It follows that an executor or administrator who, in the course of his or her role, pays from the estate a sum not legally required to be paid (or, conversely, pays legacies but not debts), commits a devastavit (mismanagement or waste), for which he or she may be personally liable to the estate (or creditors).80

Where contractual claim subject to limitation 12.17 The case law, though, has long recognised a qualification to the above principle. It holds that an executor or administrator is not bound to plead the relevant limitations legislation, where it may otherwise apply, and so may pay a statute-barred debt, without committing a devastavit,81 unless a court has declared the debt in issue to be statute-barred. This qualification has been

judicially branded as ‘an exception from the general rule’82 and as ‘an anomaly’,83 apparently grounded in the dislike some have historically entertained to pleading the Statute of Limitations.84 It has also been differentiated from the formalities legislation on the ground that the Statute of Limitations destroys only the remedy, not the debt, whereas non-fulfilment of statutory formalities generally renders the contract incapable of being enforced in an action.85 12.18 Whether or not the reasons for treating the limitations scenario uniquely in this context are compelling — arguably they are not; after all, the deceased would be expected to plead the limitation period had he or she been alive, and after his or her death others have an interest in the estate — the exception is not one the courts have been even remotely inclined to extend.86 The latter appears, inter alia, from the fact that the exception does not extend to debts declared by a court to be statute-barred. It has been branded as ‘distinctly wrong’ for an executor or administrator to pay a debt judicially declared as not recoverable out of the estate he or she is charged to protect.87 As explained by Lopes LJ in Midgley v Midgley:88 [page 422] [A] co-executor, knowing what has taken place in proceedings such as this originating summons, who after an adjudication upon it pays the debt, commits a devastavit, and is liable to refund the money. It appears to me that to hold otherwise would be an unjustifiable disregard of the decision of the court that had adjudicated upon the debt. To hold otherwise would be against the principle which is admitted to be a good and sound principle, viz, that it is the duty of an executor to protect his testator’s assets, and it would be even worse — it would be an extending of this doctrine with regard to the payment of statute-barred debts which is admitted to be anomalous, and about which it has over and over again been said that it is a doctrine which ought not to be extended … After an adjudication that the debt is irrecoverable I am clearly of opinion that no executor would be justified in making payment of it.

In any event, in New South Wales, where the limitations legislation explicitly extinguishes the debt upon the expiry of the limitation period,89 a basis for the above anomalous exception has arguably been removed. In that jurisdiction, as explained in McGrath v Troy vis-à-vis an administrator, it stands to reason that:90 … an administrator who pays a statute-barred debt will be liable to make good the estate, unless

the debt was paid after the administrator, having exercised due diligence and honest judgment, formed the view that the debt was not extinguished, perhaps because there was an answer to a limitation defence, or, if the administrator, having exercised due diligence and honest judgment, formed the view that the costs of defending the claim, or the delay in completing the administration whilst the claim is adjudicated, meant it was in the best interests of the estate to pay or compromise the claim.

Whether such a view can, absent a parallel statutory initiative, translate more broadly within the Australian legal landscape remains to be seen. While dicta can be found supportive of the anomalous exception,91 there are sound reasons in principle, aside from a dedicated extinguishment provision, for the approach espoused by White J above. Exceptions to established principle usually require compelling justification, as to which an historical distaste for the pleading of limitations periods seems most flimsy. It is therefore unsurprising that it has not endeared itself to all Australian judges.92

Survival of personal actions for and against the deceased 12.19 The common law distinguished causes of actions personal to a person from those that were not. The distinction proved important, inter alia, upon the death of the person. If the action was not one personal to the deceased — for example, arising out of a contract to sell or purchase property entered into by the deceased prior to his or her death — the deceased’s death did not bring it to an end. His or her executors or administrators were bound, as the deceased’s representatives, to abide by its terms.93 If instead the contract was personal to the deceased, or a non-contractual cause of action was personal to the deceased, any legal rights and obligations thereunder could not survive the deceased’s death; these died with the deceased, an outcome reflected in the maxim actio personalis moritur cum persona.94 [page 423] 12.20 The distinction drawn at common law — not one always easy to draw — has been superseded by statute in each jurisdiction as regards causes of action in tort.95 It states a general rule that, when a person dies, all causes of

action vested in the person survive for the benefit of his or her estate, and all causes of action existing against the person survive against the estate.96 The executors are the proper plaintiffs (or defendants) in this context. The rule is expressed not to apply to causes of action for defamation (except in Tasmania),97 and is the subject of various restrictions as to the quantification of damages. Excluded is an award of exemplary damages,98 and there are restrictions on damages recoverable where the act or omission that gave rise to the cause of action caused the person’s death.99 Also, in some jurisdictions proceedings in respect of a cause of action in tort that survives against the estate are subject to prescribed time limits.100 The legislation adds that, where damage has been suffered by reason of an act or omission in respect of which a cause of action would have subsisted against a person had he or she not died before or at the same time as the damage was suffered, the cause of action that would have so subsisted had he or she died after the damage was suffered is deemed to have subsisted before he or she died.101

Fiduciary Duties 12.21 As personal representatives receive the estate of the deceased without distinction between legal and equitable ownership102 but must nonetheless administer it for the benefit of its beneficiaries, whether pursuant to the terms of the will or the intestacy rules, it was hardly surprising that equity should impose fiduciary duties on personal representatives. It has been judicially observed that ‘in equity the executor is bound by a most direct trust to deal properly with the assets and to apply them in due course of administration of the estate’.103 The very power, legally speaking, that personal representatives hold over the deceased’s estate calls for prophylactic control on its abuse. To this end, personal representatives, like trustees and others to whom fiduciary duties apply, must abide by the fiduciary ‘no conflict’ and the ‘no profit’ rules. The former requires a personal representative to avoid placing his or her own interests in conflict with the duty as a personal [page 424]

representative. The latter, which is in reality no more than a subset of the former, proscribes persons from profiting from their position as personal representatives. Breach of fiduciary duty renders an errant personal representative liable to the beneficiaries for any loss to the estate stemming from the breach, or otherwise accountable for any gain secured as a result of the breach.104 12.22 The ‘no conflict’ and ‘no profit’ rules can be mollified by the terms of the will; the expression of a testator’s intention must, after all, prevail over that which the law would otherwise superimpose. The typical example is a clause in the will entitling an executor to charge for executorial services; within its terms, it ousts the ‘no profit’ proscription.105 That the will appoints a beneficiary as an executor does not outright oust the fiduciary duties he or she owes in the capacity as executor.106 So, for instance, an important (but hardly exhaustive)107 emanation of fiduciary law — the ‘purchase rule’,108 which prohibits executors (as well as administrators) from purchasing estate property except under the terms of the will or with the consent of the beneficiaries109 — applies equally whether or not the executor is a beneficiary of the estate.110 But the rule has little sensible application if the executor is the sole beneficiary, as an individual cannot owe fiduciary duties to himself or herself. Nor does it apply to the extent that the will allows personal representatives to purchase estate property111 or, it appears, where a contractual or statutory entitlement to purchase precedes the commencement of the administration of the estate.112 [page 425] 12.23 If an executor has possession of an asset of the estate — commonly real property — without paying a market price for it, the issue arises as to whether this amounts to a breach of fiduciary duty. If so, he or she may be ordered to pay ‘occupation rent’ to the estate. The issue targets whether the possession is consistent with his or her duties as executor to act in the beneficiaries’ interests. If it can be so aligned, there is no fiduciary breach, and no liability for occupation rent, even if the executor derived some benefit thereby. This may be so where, for instance, the occupation and associated maintenance of the property is necessary to present it in the best light to prospective

purchasers. Also, if the executor has become a trustee,113 and becomes at that stage a beneficial co-owner of the property, he or she is entitled to possession in the latter capacity, and thus ordinarily not required to account for the benefit, provided that other co-owners are not wrongfully excluded therefrom.114 But in other instances it is likely that possession by an executor will be inconsistent with the performance of executorial duties, and thus amenable to an order to pay occupation rent.

Duty Relating to Preservation of Estate 12.24 Consistent with an executor’s functions in relation to the estate of the testator, underscored by the fiduciary duty owed in carrying out those functions,115 an executor is obliged not only to get in the estate property,116 but to preserve that property prior to its distribution in line with the testator’s instructions. In this sense, the executor’s duty parallels that of a trustee. But, unlike trustees, executors (or administrators) do not ordinarily perform an ongoing role in the management of the estate; the latter is the role of trustees, and so it is common, where ongoing management is required, for executors to become the trustees of the testator’s estate.117 If and when that occurs, executors are subject to the duties of trustees, which include the investment of the estate property for the financial benefit of trust beneficiaries.118 The discretion as to investment conferred on trustees by the trustee legislation119 then applies to personal representatives, except to the extent that the terms of the will stipulate to the contrary. 12.25 The foregoing does not absolve executors, as executors, from an obligation in appropriate circumstances to make the assets of the estate productive. So to the extent that the estate is comprised of cash, executors must ensure it is invested at interest — in a form of account at a financial institution suitable to the quantum of cash involved and the need for accessibility,120 and separate from money outside the estate121 — pending the completion of [page 426]

their executorial functions.122 And pending the sale of real estate as part of those functions, it may be apt to lease the property to generate income for the estate, especially where it is likely that some time will elapse before the sale. The issue has arisen in the case law chiefly where the executor, pending the sale, has allowed a relative or associate to inhabit the property rent-free pending its (delayed) sale. In Howling v Kristofferson123 Cohen J ruled that the executor was liable to obtain a tenancy in circumstances where he had delayed the sale of the relevant property, while installing his own son in the property, against ongoing remonstrations from the beneficiaries. But his Honour added that, had the house been sold promptly after the grant of probate, it would not have been ‘practical to expect the executor to enter into a lease of it because it would be reasonably assumed that the sale would be completed within the matter of a few months’.124 The same may be the case if the property is being actively marketed for sale, given the ‘advantages in not having a tenant with a fixed lease in place, both in terms of ease of access to the property, and in terms of the assurances that the premises will be vacant on sale’.125 In Mangraviti v Donato,126 where the property was marketed from August through October 2005 before being sold, with completion in January 2006, Rein J was not satisfied that the executors failed in their duty to the estate by not seeking to lease the property at the time they put it on the market. That the testator’s son gained a benefit in being able to reside in the house rent-free until its sale did not alter his Honour’s view, especially as for most of his occupation probate had not been granted.

Duty to Act Personally Duty stems from office being personal 12.26 Like that of a trustee, the office of an executor is a personal one, and so ordinarily incapable of being delegated or assigned, including to a coexecutor.127 The law, to this end, does not countenance a dormant executor, who delegates his or her functions to co-executors or third parties, or who routinely defers to the wishes of those others without exercising independent thought or judgment.128 The nomination of one or more persons to the executorial role evinces the testator’s intention, it is assumed subject to

evidence to the contrary,129 that those persons will personally perform that role rather than delegate its performance to others, whom the testator has not nominated.

Qualifications to the duty Circumstances where delegation is legitimate 12.27 The foregoing does not mean that executors (and, for that matter, administrators) must perform every aspect of the administration of the estate without assistance. As noted elsewhere,130 an executor’s absence from the jurisdiction within which the estate is located [page 427] may give grounds, whether at general law or under statute, for the appointment of a resident attorney to perform the executory function. And provisions in the trustee statutes, which in this context apply to personal representatives,131 empowering trustees to delegate functions in defined circumstances132 may supply a potentially broader avenue for delegation.133 The latter, inter alia, attributes liability to the trustee for the delegate’s acts and defaults (except for Western Australia, where an appointment in good faith and without negligence confers a defence).

Employment of agents 12.28 The law distinguishes a delegate from an agent. Unlike delegates, who actually exercise an executor’s power, discretion and authority, agents are engaged either to inform executors in making their decisions, or to carry out or implement decisions properly taken by the executors. Again, the principles in this context align with those applicable to trustees. The law allows trustees, and therefore executors, to engage agents to assist in the performance of their duties and powers where this is necessary for practical reasons. As Bowen LJ explained in Re Speight, in the context of trustees:134 [I]n the administration of a trust a trustee cannot do everything himself — he must to a certain

extent make use of the arms, legs, eyes, and hands of other persons, and the limit within which it seems to me he is confined has been described … to be this — that a trustee may follow the ordinary course of business, provided he runs no needless risk in doing so … In other words, a trustee may not employ an agent where he should do the work himself; but he may employ an agent where … it is in the ordinary course of business to use others, and if he runs no needless risk in doing so.

Therefore, whether an agent ought to be engaged rests on whether doing so is consistent with the standard of care expected of an executor.135 It is common, for instance, for executors to appoint a solicitor as agent to perform the various legal steps required in the course of the administration. In other instances, depending on the nature of the estate, it may be appropriate to engage the services of other professionals, such as real estate agents, accountants or town planners.136 It cannot be assumed, after all, that executors possess the expertise and/or experience to perform all aspects of the executorial function. Moreover, provision exists in the [page 428] trustee legislation other than in the Northern Territory, South Australia and Tasmania, again applicable to personal representatives, for a broad power to appoint agents.137 12.29 In each instance, the law requires personal representatives to exercise care in selecting agents suitable138 and competent139 in the area of appointment, and in supervising agents in the work undertaken.140 If the requisite care is taken, the general law excuses the executor for losses caused by the agent,141 and a similar protection enures under the trustee legislation for the defaults of agents employed in good faith142 (and, in Queensland and Western Australia, without negligence). In any event, general protection is afforded against an agent’s default pursuant to ‘wilful default’ provisions in that legislation.143 The costs of agents properly engaged by personal representatives are payable out of the estate.

Duty to Account

At general law 12.30 The general law has long recognised that an executor owes a duty to account to the persons who are to take under the testator’s will. In 1812, for instance, Lord Eldon LC cited to ‘the bounden duty of an executor, to keep clear and distinct accounts of the property which he himself is bound to administer’.144 Only a few years later Sir Thomas Plumer MR described as ‘the first duty of an accounting party’ to be ‘constantly ready with his accounts’.145 The duty stems from the executor’s position as a fiduciary vis-à-vis the beneficiaries, and parallels that imposed on trustees from the earliest times.146 The equivalent position of administrators, whether or not cum testamento annexo, attracts a corresponding duty.147 A failure to properly account can form the basis for a revocation of probate or administration.148 Courts commonly refer to the duty in terms of keeping ‘proper’ accounts and records. What ‘proper’ entails in this context are accounts that are unambiguous, clear and distinct so as to provide accurate information to the beneficiaries sufficient to inform them (and the court, if necessary) as to the state of the administration, including the asset and liability position and the inflow and outflow of funds.149 Receipts, vouchers or other documentation must support each transaction. [page 429] 12.31 As the accounts and records are kept as a vehicle to monitor the proper administration of the estate, the duty to account carries an entitlement in the beneficiaries to view the records and supporting evidence. Not only do beneficiaries have an interest, in this manner, in ensuring that the personal representatives have performed their role in accordance with the testator’s instructions, the intestacy rules and/or the order(s) of the court, the information may be relevant for the various purposes linked to the ultimate entitlement of an individual beneficiary to parts or all of the estate (say, for the purposes of taxation, insolvency or security). Personal representatives are accordingly obliged by the law to allow requesting beneficiaries to inspect the accounts, and to do so willingly rather than reluctantly.150 The beneficiaries’

right — in this context often phrased in terms of an account ‘in common form’151 — is not premised upon an allegation of a breach of duty; in this sense, it is an ‘absolute right’.152 But it is not absolute in the sense that a beneficiary is entitled to information beyond that which relates to his or her interest in the estate. A beneficiary of one share of the estate is not, for instance, entitled to receive any information as to the dealings of other beneficiaries in whose share he or she has no interest.153 Nor does the right to inspect, it seems, translate to a right to demand beneficiaries’ own copies of accounts and supporting documentation at the expense of the estate; personal representatives may require the cost of supplying copies paid or guaranteed before complying with the request.154 12.32 Aside from the basic duty to maintain accounts and supporting documentation, and its corresponding right in the beneficiaries, the ultimate and final accounting performed by a personal representative is the distribution or payment of the estate to the beneficiaries entitled under the will or the intestacy rules, after the discharge of the estate’s liabilities155 and any entitlement to commission.156

Pursuant to statute 12.33 In each jurisdiction statute and/or rules have supplemented the duties imposed and rights recognised by the common law. The statutory treatment, though exhibiting various similarities between jurisdictions, is by no means uniform, and so cannot be described holistically without being too general or otherwise misleading. There is, nonetheless, a distinction between those jurisdictions that make lodgement of accounts mandatory (South Australia, Tasmania and Western Australia) and those that premise this upon a court order (elsewhere, although in New South Wales a hybrid approach applies). Conscious of ‘simplifying the administration [page 430] of estates’ and ‘not imposing unnecessary burdens on personal representatives’,

the National Committee for Uniform Succession Laws did not consider that the need to protect the interests of persons with an interest in the proper administration of an estate was best served by requiring personal representatives routinely to file and pass accounts, whether in every case or where the personal representative is of a particular category.157 It therefore recommended that this course be premised upon a court order.

Australian Capital Territory and Queensland 12.34 The Australian Capital Territory and Queensland court rules entitle a beneficiary158 to apply to the court for an order requiring the examination and passing of a personal representative’s estate accounts.159 Within a set time160 of being served a copy of the order, the personal representative must file the accounts, make an appointment with the registrar to have the accounts examined and passed, and attend the appointment.161 If he or she fails to comply with the order, the court may, on the beneficiary’s application, direct that proceedings it considers appropriate be taken against the personal representative.162 If an account is to be examined, the personal representative must give the prescribed notice,163 and a person having a claim on, or otherwise interested in, the estate may file a memorandum indicating his or her desire to be heard on the examination and passing of the account.164 On an examination only, a person who has filed a memorandum may object to the passing of the account.165 If no memorandum is filed, the registrar may pass the account solely on the oath of the personal representative with appropriate verification.166 The result of the examination is set out in a certificate.167 On the filing of the certificate, the personal representative must apply to the court for an order that the account be passed and may, should he or she desire, apply for an allowance of commission.168 On the hearing, the court may order that the account be passed with or without amendment or, in Queensland, refer the certificate to the registrar for review.169 The Australian Capital Territory legislation also empowers the court to order a personal representative to file an inventory of the estate, and that the accounts of the estate be examined and passed.170 The latter order is evidence of its correctness and operates, once 3 years have expired, to release the

personal representative, except in relation to what is proven to be an error or omission or fraudulent entry in the account.171 Under the court rules, if a personal representative fails to comply with a written request for an account172 from a beneficiary or another personal representative, the person making the request may make application to the [page 431] court, which may make the order(s) it considers just.173 Separate provision is made for the Public Trustee’s duty to account, directed to the making of an inventory of all the estates that the Public Trustee has been ordered to collect and administer174 and the retention of all relevant documentation and correspondence relating to those estates.175

New South Wales 12.35 In New South Wales the following persons to whom representation has been granted must verify and file, or verify, file and pass their accounts relating to the estate within 12 months of the grant176 or as the court may order:177 • a creditor of the estate; • the guardian of a minor who is a beneficiary of the estate; • the personal representative of the estate where the whole, or in the opinion of the court a substantial part, of the estate passes to one or more charities or public benevolent institutions; • a person, not being a beneficiary, or in the opinion of the court a substantial beneficiary, of the estate, selected at random by the court; or • a person otherwise required to do so by the court. An equivalent obligation is imposed on every trustee of the estate.178 Although the foregoing is expressed in imperative terms, the inclusion of the phrase ‘or as the court may order’ dictates that the obligation imposed ‘encompasses within it the possibility of variation in accordance with the discretion of the court’.179 Being in the form of a statutory obligation, the relevant executor or trustee cannot raise equitable defences — such as laches

and acquiescence — to defeat the existence of a statutory liability to account.180 But the exercise of the said discretion in the court may be influenced by the presence of delay and acquiescence.181 The legislation provides that any other person to whom representation has been granted may verify and file, or verify, file and pass the person’s accounts, but must do so if ordered by the court.182 In any event, any of the above persons may be subject to a court order, made on the application of a person interested, for the production and verification of the accounts concerned.183 The court order allowing any such account is prima facie evidence of its correctness and, upon the expiration of 3 years, operates to release the person filing it, excepting so far as it is shown that an error or omission or fraudulent entry has been made.184 If the court, in passing accounts, disallows part or all of a disbursement, it may order the personal representative to refund the amount disallowed to the estate, without prejudice to any [page 432] person’s right to proceed against the personal representative in equity.185 The court may also order a personal representative to verify and file an inventory of the estate.186 The obligation to file or pass accounts does not apply to the NSW Trustee unless the court so orders (on the application by or on behalf of a person interested in the estate) or a person who acts jointly with the NSW Trustee seeks commission for his or her pains and trouble.187 12.36 If a personal representative neglects to perform any of the above acts required in relation to an inventory or the accounts of the estate within 1 month of the time fixed for compliance, the registrar must notify the personal representative of the neglect.188 If non-compliance persists for another month, the registrar must summon the personal representative before the court to show cause why he or she should not be ordered to file, to file and pass, or to pass the accounts forthwith.189 Non-compliance in this context renders a personal representative liable to punishment for contempt of court, and personal liability for the costs and expenses of any such proceedings unless the court otherwise orders.190 The said proceedings do not prejudice the right to

proceed against the administration.191

personal

representative

for

an

account

and

Northern Territory 12.37 Statute in the Northern Territory obliges a personal representative, if required by the court or the court rules, to file or file and pass accounts relating to the administration of the estate.192 Failure to comply with this requirement generates the same consequences as those prescribed in New South Wales above.193

South Australia 12.38 In South Australia statute requires every ‘administrator’ — the general law, it appears, governs the position of executors194 — within 6 months from the date of the administration, or within such extended time as the Public Trustee upon application allows, to deliver at the office of the Public Trustee a statement and account, verified by declaration, of the estate and its administration.195 The foregoing does not apply where a trustee company is the administrator.196 In any case, the court may at any time, upon the application of the Public Trustee or any person interested in the estate, or on its own initiative, order an administrator to deliver at the office of the Public Trustee such a statement and account.197 Statute also requires the Public Trustee [page 433] to cause proper accounts to be kept of estates under its control, and of dealings and transactions in relation to the estates.198 This, in any event, reflects the general law. If an administrator fails to comply with the duty to deliver a statement and account to the Public Trustee, or an order of the court within 1 month of the prescribed date, the Public Trustee or a person interested may summon the administrator before the court to show cause why he or she should not be required to deliver an account forthwith.199 If the administrator fails to attend

before the court, or does not show any reasonable cause to the contrary, the court may make such an order, or grant an administrator further time.200 Default in compliance with the court’s order may render the administrator liable to pay a sum not exceeding $1000, to the Public Trustee or person so applying, for every such default.201

Tasmania 12.39 In Tasmania, a personal representative who has advertised for claims against the estate202 must, once the time within which claims are to be submitted has passed, file with the registrar an account in writing of all the assets of the deceased that form part of the estate, and of the payment, distribution or retainer of those assets, with the names of the persons to whom any of the assets have been paid or delivered.203 If a personal representative neglects to pass accounts when and how directed, the court may, on the application of any person aggrieved by the neglect, order and direct the personal representative to pay interest for such sums of money as from time to time have been in his or her hands, and the costs occasioned by the application.204

Victoria 12.40 The probate rules in Victoria empower the court or registrar to require a personal representative to file a true and just account, verified by affidavit, of the administration of the estate.205 The account must contain full particulars of receipts, disbursements, all assets and liabilities (including assets and liabilities not known at the date of the application for probate or administration) and particulars of distribution of all assets.206 Non-compliance with this requirement entitles the registrar to apply by summons to the court, upon which the court may remove the personal representative or make such other order as it thinks fit.207

Western Australia 12.41 Statute in Western Australia requires every person to whom representation is granted to pass his or her accounts relating to the estate within such time, and from time to time, and in such manner as may be

prescribed by the rules or as the court may order.208 The probate rules, to this end, require a personal representative (other than the Public Trustee) to file in the registry the accounts relating to the estate, and to attend before the registrar to have the accounts passed and allowed.209 If there is any balance available for distribution, the accounts must include a plan of distribution.210 Filing must occur within 12 months of the grant — [page 434] reflecting ‘the traditional period of an executor’s year for the completion of the administration of an estate’211 — or such further time as the court or registrar may allow.212 The rules contain requirements as to the advertisement of the filing of the accounts,213 and require that a person wishing to object to the passing of the accounts file in the registry a notice of intention to object, and also an affidavit stating his or her interest and the nature and grounds of the objection.214 The court order allowing any account is prima facie evidence of the correctness of the account and, after the passing of 3 years, operates to release the person filing the account, except so far as it is shown that a wilful or fraudulent error, omission or entry has been made.215 If a personal representative neglects to pass accounts within 1 month of the expiration of the period fixed by the rules, the principal registrar must notify the personal representative of the neglect and, in the event of non-compliance for a further 1-month period, must apply for a court order that the personal representative exhibit an account forthwith.216 No such proceedings affect a personal representative’s liability to be proceeded against for an account and administration.217 12.42 Although the statute and rules are phrased in mandatory terms, this is not borne out by practice in Western Australia, wherein only in a small proportion of cases is the requirement observed that accounts be filed, or that the personal representative attend upon the registrar to have accounts passed and allowed.218 It has prompted a judge to remark that the availability of this procedure serves as a ‘potent power for the supervision of estate administration

which, in the preponderance of cases, ensures that due administration and accounting is provided … to the satisfaction of beneficiaries without the need for formal passing of accounts’.219

Breach of Duty Remedies for breach of duty 12.43 The enforcement of the duties imposed by the general law and statute upon personal representatives rests upon the availability of effective remedies for breach of duty. It has been judicially observed, to this end, that the role of personal representative ‘places that person under strict obligations and duties as to the manner in which they deal with the estate’ and renders him or her ‘accountable to all the beneficiaries of the estate’, including ‘for any loss caused to [the beneficiaries] that results from [a] failure to perform properly [those] duties’.220 [page 435] Below are catalogued the main remedies221 available to those adversely affected by the failure of a personal representative to properly carry out his or her duties.

Devastavit 12.44 At common law an executor who causes pecuniary loss to creditors or beneficiaries by a breach of his or her duty of administration is liable in damages for devastavit.222 Devastavit is a Latin word meaning ‘he has laid waste’, which in law refers to a mismanagement of a deceased estate by the personal representative ‘squandering or misapplying the assets in the estate’.223 The action is one in tort.224 An executor is liable on a devastavit, not only for loss arising by a direct abuse of the assets by spending or consuming them, but also for their waste by such acts of negligence and wrong administration as will disappoint the claimants.225 This may include a loss suffered by the estate as a

result of it having to bear charges it would otherwise have avoided but for the executor’s negligence,226 a failure by the executor to collect the assets of the estate227 or to call in a debt owed to the estate,228 a failure to invest the relevant property where required,229 and the distribution of an estate without regard to the claims of a beneficiary or creditor.230 As a cause of action in tort, its rests on proof of loss or damage231 and, as foreshadowed above, the commission of a legal wrong.232

Equitable remedies for fiduciary breach(es) 12.45 As equity imposed fiduciary duties upon personal representatives, breaches of the ‘no conflict’ or ‘no profit’ fiduciary rules could open the door to relief in equity. Occasions arise where acts or omissions that trigger liability on a devastavit also substantiate a fiduciary breach, in which case remedies at common law and in equity are available in the alternative.233 Negligent or wasteful behaviour may, for instance, be driven by the executor’s personal interest conflicting with his or her duty.234 The principal remedy for a breach of fiduciary duty is equitable compensation, which aims to place its victim — via the payment of a monetary sum — as nearly as possible in the position [page 436] in which he or she would have stood had the personal representative not breached that duty.235 Where a personal representative has made an unauthorised profit from that office, the beneficiaries may seek an account of profits.236 On occasions where a personal representative has misappropriated estate assets to himself or herself, those may be held on constructive trust for the estate,237 which accountability can extend to persons who illegitimately receive those assets with knowledge of the breach or who otherwise knowingly assist in the breach.238

Administration actions 12.46

Equity traditionally had a further role in the event of difficulties in

the administration or allegations of default by a personal representative, wherein the court could take over the administration of an estate. In this event, the exercise of the personal representatives’ powers requires, subject to the terms of the order, the sanction of the court.239 An administration action aimed to settle questions at the instance of, or between, persons interested in the estate240 and thereby assist and protect personal representatives, as well as protect others with an interest therein. Standing for this purpose therefore extended to, inter alia, beneficiaries,241 creditors242 and the personal representatives themselves.243 The same jurisdiction applied in the context of trusts, where its principal application arose if trustees could not agree, the circumstances spawned recurring difficulties requiring frequent curial direction, or prima facie doubt was thrown on the trustee’s bona fides.244 It stands to reason that circumstances of this kind arising in the estates context could similarly attract the jurisdiction. The reality, though, is that administration actions, and attendant orders, are rare in the modern environment. Indeed, the High Court has described them as ‘somewhat old-fashioned’,245 given the other means available to address issues of this kind without the inconvenience of an administration order. There is no need for such an order if the issues can be determined by the exercise of the right of personal representatives to seek the court’s advice and directions,246 if issues relating to construction of the will may be determined via an originating summons procedure in the court’s equitable jurisdiction,247 if the matter can be adequately addressed by an order for an account,248 or if the order would involve the court exercising a discretion given to the personal representatives by the terms of the will itself.249

Account on the basis of wilful default 12.47 Equity has long recognised the jurisdiction of the court to order an account, as against a trustee or personal representative, to be taken on the basis of wilful default. An order of this kind is a catalyst for what has been branded a ‘roving enquiry’250 into the personal representative’s administration of the estate. What must be shown to trigger this form of account [page 437]

is for a beneficiary (or creditor) of the estate to show at least one instance of ‘wilful default’251 that has caused an actual loss of assets received, or that ought to have been received had the personal representative’s duties been discharged.252 Accordingly, not all breaches of duty by a personal representative necessarily constitute wilful default.253 For example, though failure to maintain adequate books, records and accounts are breaches of duty,254 without evidence that these breaches resulted in something not being received by the estate or otherwise lost to it, no basis for such an account exists.255 In the case of relief given in respect of breach of trust, moreover, the relief is only in respect of those specific breaches that are proven. An account on the basis of wilful default is by no means so confined.256 The reference to ‘one instance of wilful default’ often mentioned in judgments is a bare minimum. Often a greater number of defaults will be pleaded and, in any event, a court will only order an account on this basis if the conduct that forms the foundation for the application raises a prima facie inference that other breaches of duty yet unknown have occurred.257 This inference is less readily drawn where the personal representative is cooperative and frank with the court;258 successful claims are more likely if he or she is uncooperative.259 At the same time, admission by personal representatives of serious past breaches, though evincing frankness, do not make an order for an account on the basis of wilful default any the less necessary.260 12.48 Proof of one or more instances of wilful default does not require proof of conscious wrongdoing.261 The inquiry is not directed chiefly at the personal representative’s mental state, but at his or her acts or (more commonly) omissions (defaults) and, specifically, their effect on the estate assets. Persistence in the denial of relevant facts and/or wrongful assertions as to the legal position, even after these have become plain, with or without conscious wrongdoing, may incline the court to the view that ‘the wider form of account should be taken’; the wrongful or misguided persistence itself supports the inference that the personal representative ‘may have been guilty of other wrongful or misguided acts in the administration of the [estate]’.262 Failure to obtain rent for a stranger’s occupation of estate property was treated as wilful default in Bartlett v Barclays Bank Trust Co Ltd (No 2).263 In Re Tebbs (deceased)264 Slade J similarly characterised an undervalue sale of an estate asset, but refrained from ordering an account in relation to the entire estate because

the evidence did not reveal the probability of other [page 438] improper transactions. Indeed, notwithstanding its description in terms of a ‘roving inquiry’, this highlights that the exercises of the court’s discretion to order an account on the basis of wilful default rarely extends to the entire estate. As explained by an Australian judge, unless there is a reason to suspect other serious undisclosed breaches of trust, the account ‘could be expected to be confined to the area of areas of administration associated with the proved wilful breaches of trust’.265

Failure to properly distribute the estate 12.49 There are occasions where a personal representative fails to distribute the estate, or to fulfil claims against it, in line with the terms of the will and the requirements of the law, but this does not justify an administration action or an account on the basis of wilful default, and does not amount to a fiduciary breach. Persons who are underpaid as a result have potential claims at law or, as noted below, under statute,266 against defaulting personal representatives. There may, moreover, be scope in some instances to proceed against recipients who have been overpaid as a result of the default of personal representatives.267

Summary application for legacy 12.50 The probate legislation in the territories, New South Wales and Western Australia states that if a personal representative, after written request, neglects or refuses to either execute a conveyance of land devised to a devisee, or to advance to a person entitled any legacy or residuary bequest, the devisee or person may apply to the court, calling on the personal representative to comply with the request, and the court may make such order as it considers appropriate.268 This jurisdiction is, by its terms, limited to executors and administrators, and so is not available once the estate has been fully administered, upon which the executor or administrator is holding the estate

as a trustee.269 The court rules in Queensland make similar provision, but in terms that extend to trustees,270 as do corresponding rules in the Australian Capital Territory.271 These provisions aim, it has been said, ‘to enable legatees and others to whom information was denied or payment refused to obtain that information, and in simple cases to obtain payment by means of a summary application’ instead of ‘being driven in every case to submit calmly or to enter on expensive litigation in the shape of an administration suit’.272 This ‘speedy and inexpensive relief’ is confined to cases where there is ‘obviously no reason for non-compliance with the request’,273 where ‘the evidence shows that the applicant is clearly entitled to the legacy sought and that there are liquid assets available for payment of it’.274 It is not to be utilised as a substitute for an administration action.275 Its procedural focus led the National Committee for Uniform Succession Laws to recommend that this procedure be located within court rules.276 [page 439]

Application for court order under statute — Queensland and South Australia 12.51 Statute in Queensland is unique in making provision to the effect that if a personal representative neglects to perform his or her duties the court may, upon the application of a person aggrieved, make such order as it thinks fit, including an order for damages, an order requiring the personal representative to pay interest on moneys in his or her hands and a costs order.277 The National Committee for Uniform Succession Laws described this as ‘a useful provision’ but, concerned that its reference to a personal representative who ‘neglects to perform his or her duties’ might be read narrowly to refer only to a personal representative who has been ‘negligent’ in performing those duties, favoured an equivalent provision phrased in terms of a personal representative who ‘fails’ to perform his or her duties.278 In South Australia statute entitles a person interested in an estate who is dissatisfied with the conduct of the Public Trustee in any matter connected

with its management or administration to apply to the court to review that conduct.279 Upon hearing such an application the court may make any order, declaratory or otherwise, that it sees fit as to the administration of the estate, and also as to the costs of the application.280

Personal representative’s liability for waste or conversion by executor 12.52 In the Australian Capital Territory, New South Wales, Queensland, Tasmania and Victoria statute adds that, if an executor (in Queensland limited to an executor de son tort)281 dies after wasting or converting to his or her own use any part of a deceased estate, his or her personal representative is liable in respect of that waste or conversion in the same manner as the defaulter would have been if living, to the extent of the available assets of the defaulter.282 Except in Queensland, the same ensues where a properly constituted personal representative committed the waste or conversion. The foregoing owes its genesis to two seventeenth-century Imperial statutes,283 which arguably remain in force in the remaining jurisdictions. Yet subsequent statutory provision across Australia allowing for the survival of causes of action on a person’s death,284 which altered the general law position, render the above provisions superfluous. This led the National Committee for Uniform Succession Laws to recommended the repeal of these provisions.285

Liability for defaults of other personal representatives 12.53 That the executorial office is a personal one that is, generally speaking, incapable of being assigned to a co-executor286 does not mean that executors are as a matter of course liable for their co-executor’s defaults. As executors need not act jointly, it would be unfair, in particular, were the law to attribute the defaults of one executor to his or her co-executors. The common law was not ignorant of this. In 1849 Lord Cottenham LC saw it as ‘well established and assumed by the highest authority’ that ‘a devastavit by one of two executors [page 440]

would not charge his companion, provided he had not contributed to it’.287 Attaching liability to an executor — and for this purpose the same applied as regards administrators — only where he or she was in a sense a party to the default served to protect an ‘innocent’ person from the defaults of others. 12.54 The trustee legislation later espoused a similar sentiment. It did not, it is said, ‘substantially alter the law as it was administered by Courts of Equity, but [gave] it the authority and force of statute law’.288 In provisions applicable to personal representatives in this context,289 it makes a personal representative answerable and accountable only for his or her own acts, receipts, neglects or defaults, and not for those of any other personal representative except where the latter happen through the former’s own ‘wilful default’.290 Scope for liability in this context thus rests on the parameters of the concept of ‘wilful default’. Its traditional interpretation, albeit owing its genesis to a different context, is directed to a person who ‘knows that he is committing, and intends to commit, a breach of his duty, or is recklessly careless in the sense of not caring whether his act or omission is or is not a breach of duty’.291 The formulation highlights that mere negligence or error of judgment falls outside wilful default.292 Yet circumstances may arise where, outside of an intentional or reckless act or omission, a personal representative may nonetheless be in wilful default. There is consistent English authority defining ‘wilful default’ in terms of ‘want of ordinary prudence’,293 lending support to the view that wilful default expresses no more than a failure to act in accord with the requisite standard of care.294 This draws support in Australia in the trusts context from Dalrymple v Melville,295 where a trustee was held to be in wilful default for allowing a co-trustee to position himself to misappropriate trust funds even though the trustee did not suspect the cotrustee to be a thief. 12.55 It stands to reason that personal representatives who delegate functions to one of their number, or otherwise fail to maintain some interest and oversight over the conduct of other personal representatives, are unlikely to escape a finding of wilful default. Nor would they receive protection from the common law, which it has been said requires all executors

[page 441] ‘to watch over, and, if necessary, to correct the conduct of each other’,296 so that ‘negligence and inattention in not interfering with, and taking proper measures to prevent or correct, the improper conduct of their co-executor may subject them to [liability]’.297 There is sense in adopting such an approach, if for no other reason than to give effect to why multiple personal representatives are nominated or appointed in the first place, namely as an additional control.298

Defences to breach of duty Beneficiaries’ consent, acquiescence or release 12.56 A beneficiary of an estate who instigates, consents or concurs in a personal representative’s breach of duty vis-à-vis the estate cannot succeed in an action based upon that breach. The law in this context parallels trust law.299 For this purpose, it has been judicially observed that ‘executors are in the position of trustees, and it cannot be doubted that, if a [beneficiary] not under disability sanctions a departure from the strict line of duty prescribed by the conditions of the trust, he cannot afterwards be heard to complain of that departure, or treat it as a breach of trust’.300 An effective consent requires not only that the beneficiary have capacity; it also presupposes full knowledge of all relevant facts and the consequences of consenting or concurring.301 The same consequences ensue where a beneficiary acquiesces in the breach, whether by adopting the breach or by remaining inactive with full knowledge thereof. The principles are those applicable to trustees, as are those governing the release by a beneficiary of a personal representative’s liability for a past breach of duty.302

Exoneration clause 12.57 There is nothing to preclude a testator from including within the terms of his or her will a clause that purports to exonerate personal representatives from breaches of duty. Albeit less common in wills than in trust

deeds, the principles should logically be the same.303 Broadly speaking, they require clauses of this kind to be construed strictly against the personal representative and, for reasons of public policy, are not effective to shield from liability arising out of dishonesty.304

Court’s jurisdiction to relieve against breach 12.58 The trustee legislation in each jurisdiction empowers the court to excuse a trustee from liability for a breach of trust in circumstances where the trustee has acted honestly and [page 442] reasonably and the court considers he or she ought fairly to be excused for the breach.305 For this purpose the trustee legislation applies in equal measure to breaches of duty by personal representatives,306 including to those who have committed a devastavit,307 who, like trustees, bear the onus of satisfying the court of each of the elements of the statutory defence. Case law on trustees in this context is therefore reflective of the curial attitude to personal representatives who seek to invoke the defence.308 What the cases reveal is that honesty aligns with the concept of good faith, and that reasonableness is inconsistent with recklessness, carelessness or negligence, as distinct from mere negligence.309 They also indicate that a professional executor is likely to have a less compelling claim to relief than a lay one.

Elapsing of time — limitations legislation 12.59 Subject to provisions specific to personal representatives in some jurisdictions, noted in the ensuing paragraph, causes of action against personal representatives — excepting those arising out of a devastavit,310 which are tortious in nature and thus subject to the limitation period(s) applicable to tortious claims311 — are subject to the same statutory time bars that apply to trustees.312 This is because the limitations legislation, whether in its terms or by reference to the trustee legislation, generally defines trusteeship to encompass personal representatives.313 Other than in Western Australia, the

limitations statutes distinguish ‘innocent’ breaches314 — for which a 6-year limitation period is prescribed (3 years in the Northern Territory)315 — from fraud, fraudulent breach of trust or the retention or conversion of trust funds or property. For the latter defaults the territories and New South Wales stipulate a 12-year limitation period316 while other jurisdictions set no limitation period.317 The innocent-fraudulent distinction in [page 443] this context has been ousted in Western Australia, which sets a general 6-year limitation period as from when the cause of action accrued.318 12.60 The above must be read subject to provisions in some jurisdictions that apply a longer time bar with respect to certain claims against personal representatives. In Queensland, Tasmania and Victoria the limitations legislation states that, except where in these jurisdictions no limitation period applies to an action for breach of trust, an action in respect of a claim to a deceased’s personal estate or to a share or interest therein,319 whether under a will or on intestacy, cannot be brought after the expiration of 12 (in Victoria, 15) years from the date on which the right to receive the share or interest accrued.320 The latter temporally aligns, it is said, with when the personal representative is first in a position to distribute the residuary (personal) estate, namely upon having paid the costs, funeral and testamentary and administration expenses, debts and other liabilities properly payable out of the estate assets, and provided for the payment of any pecuniary legacies.321 South Australia sets a 15-year time bar on claims for personalty under a legacy in a will, again running from the date on which a present right to receive the legacy accrued.322

1. 2. 3.

As to renounciations by executors, see 10.58, 10.59. As to probate generally, see Chapter 11. Re Young [1968] NZLR 1178 at 1179 per Wilson J (referring to ‘the duty of an executor of any will which he believes may be the valid last will of the testator to propound it, and to take all proper steps to prove its validity’); Re Quinlivan [2013] WASC 286; BC201303212 at [33] per Boyle R.

4.

5. 6.

7. 8. 9.

10.

11.

12. 13.

14.

When speaking of vitiating factors (such as mental incapacity (see 2.2–2.20), lack of knowledge or approval (see 2.27, 2.28) or undue influence (see 2.39—2.47)), it has been noted that an executor named in a will is ‘under no duty to propound that will if he is not satisfied that it should be proved’: Aspland v Tsakalakis (2012) 7 ASTLR 1; [2012] WASC 35; BC201200290 at [54] per E M Heenan J. Re Quinlivan [2013] WASC 286; BC201303212 at [34] per Boyle R, cited with apparent approval by McMillan J in Rowe v Storer (No 2) [2013] VSC 635; BC201314912 at [24]. As to informal wills, see 4.30–4.52. See 12.11–12.13. Johnson v Newton (1853) 11 Hare 160 at 167–8; 68 ER 1230 at 1233 per Page Wood VC; Re Smith (1889) 42 Ch D 302 at 304 per North J; Re Chapman [1896] 2 Ch 763 at 773 per Lindley LJ; Re Timmis [1902] 1 Ch 176 at 183 per Kekewich J; In the Estate of Speke (1913) 109 LT 719 at 720 per Bargrave Deane J; Re Tankard [1942] 1 Ch 69 at 72 per Uthwatt J; Re Cunliffe-Owen [1953] Ch 545 at 558 per Evershed MR; Re Chirnside [1956] VLR 295 at 304 per Dean J; Hardiman v Beal & Morris (1956) 58 WALR 20 at 25 per Wolff SPJ; Re Hayes’ Will Trusts [1971] 2 All ER 341 at 347 per Ungoed-Thomas J; Porteous v Rinehart (1998) 19 WAR 495 at 502; BC9804413 per White J; Juul v Northey [2010] NSWCA 211; BC201006158 at [196] per McColl JA. The obligation is reiterated by statute in some jurisdictions, by reference to both executors and administrators (Qld s 52(1)(a)–(d); WA s 43(1)(a)), and has been recommended to form part of national model legislation (see QLRC, Report 65, Vol 1, p 328). As to the intestacy rules, see Chapter 9. See Chapter 14. In the Matter of the Transfer of Land Act 1890 [1911] VLR 197 at 203 per Madden CJ. Statute reflects this in several jurisdictions. It states that a person to whom administration of a deceased estate is granted has, subject to any limitations in the grant, the same rights and liabilities as if the person had been appointed the executor of the estate, and is accountable in the same way as if he or she were the executor: ACT s 13; Imperial Acts Application Act 1969 (NSW) s 14; Qld s 50; Tas s 24; Vic s 27. An equivalent provision has been recommended to form part of model legislation: QLRC, Report 65, Vol 1, pp 323–4. Re Speight (1883) 22 Ch D 727 at 739–40 per Jessel MR (aff’d Speight v Gaunt (1883) 9 App Cas 1 at 19 per Lord Blackburn); Austin v Austin (1906) 3 CLR 516 at 525 per Griffith CJ (applying this principle to executors). See further Dal Pont, pp 664–5; Jacobs, pp 354–7. Hill v Roberts (SC(Vic), Ashley J, 27 October 1995, unreported) BC9502508 at 43. See also Garrett v Noble (1834) 6 Sim 504 at 516; 58 ER 683 at 687–8 per Shadwell VC (‘The rule of law is that, where trustees bonâ fide exert themselves to discharge their duty and merely commit an error in judgment, unless there is a plain violation of trust, they shall not be visited severely. The fair exercise of their judgment is a protection to them, although the consequence may be bad’). Re Charteris [1917] 2 Ch 379 at 389 per Swinfen Eady LJ. Bartlett v Barclays Bank Trust Co Ltd (No 1) [1980] Ch 515 at 534 per Brightman J (in the context of trustees). The trustee legislation in each jurisdiction, which for this purpose applies to personal representatives (see P.16), explicitly locates the standard of care required of a professional trustee in the investment of trust funds as that which a prudent person engaged in that profession would exercise in managing the affairs of others: ACT s 14A(2)(a); NSW s 14A(2)(a); NT s 6(1)(a); Qld s 22(1)(a); SA s 7(1)(a); Tas s 7(1)(a); Vic s 6(1)(a); WA s 18(1)(a). On this point more generally, see G E Dal Pont, Lawyers’ Professional Responsibility, 6th ed, Lawbook Co, Australia, 2017, pp 182–3.

15.

16. 17. 18.

19. 20.

21. 22.

23.

24. 25.

MacDonald v Public Trustee [2010] NSWSC 684; BC201004358 at [89] per McLaughlin AsJ (involving an extreme case, where the Public Trustee refused to administer the estate over some 42 years, and evinced an attitude towards those persons who sought to claim an entitlement to the estate that ‘could in no way be considered to be a reasonable discharge of its duty by a statutory authority’ but that instead revealed ‘a contumelious disregard for the Public Trustee’s own statutory obligations, as well as for the corresponding rights of the beneficiaries’: at [92]; in these circumstances exemplary damages were also awarded). See generally L Griggs and K Mackie, ‘Burial Rights: The Contemporary Australian Position’ (2000) 7 JLM 404. R v Fox (1841) 2 QB 246; 114 ER 95; Williams v Williams (1882) 20 Ch D 659. See generally R Atherton, ‘Claims on the Deceased: The Corpse as Property’ (2000) 7 JLM 361. Williams v Williams (1882) 20 Ch D 659 at 665 per Kay J; Hunter v Hunter [1930] 4 DLR 255 at 263– 5 per McEvoy J (SC(Ont)); Waldman v Melville (City) (1990) 65 DLR (4th) 154 at 155–6 per MacLeod J (QB(Sask)); Smith v Tamworth City Council (1997) 41 NSWLR 680 at 693; BC9701914 per Young J (‘If a person has named an executor in his or her will and that person is ready, willing and able to arrange for the burial of the deceased’s body, the person named as executor has the right to do so’); Dobson v North Tyneside Health Authority [1996] 4 All ER 474 at 478–9 per Peter Gibson LJ, with whom Thorpe and Butler-Sloss LJJ concurred; Buchanan v Milton [1999] 2 FLR 844 at 845 per Hale J; Manktelow v Public Trustee (2001) 25 WAR 126; [2001] WASC 290; BC200106536 at [22]–[30] per Hasluck J; University Hospital Lewinsham NHS Trust v Hamuth [2007] WTLR 309; [2006] EWHC 1609 (Ch) at [13]–[17] per Hart J; Ibuna v Arroyo [2012] WTLR 827; [2012] EWHC 428 (Ch) at [44]–[50] per Peter Smith J. Takamore v Clarke [2013] 2 NZLR 733; [2012] NZSC 116; BC201266178 at [144] per Blanchard JJ, joined by Tipping and McGrath JJ. Takamore v Clarke [2013] 2 NZLR 733; [2012] NZSC 116; BC201266178 at [153] per Blanchard JJ, joined by Tipping and McGrath JJ. In the event of disagreement between the personal representative and the deceased’s family (or close friends), the minority, Elias CJ and William Young J in separate judgments, favoured the matter being addressed by the court rather than determined by the personal representative’s fiat: at [90] per Elias CJ, at [207]–[209] per William Young J. While their Honours may well have had justification for remaining unconvinced of the rationale(s) proffered for the somewhat blunt rule in this context (see at [50] per Elias CJ, at [202]– [205] per William Young J), their preferred approach ultimately encourages the litigation of disputes rather than quells them. Takamore v Clarke [2012] 1 NZLR 573; [2011] NZCA 587 at [199]–[206] per Glazebrook and Wild JJ (aff’d Takamore v Clarke [2013] 2 NZLR 733; [2012] NZSC 116; BC201266178). Smith v Tamworth City Council (1997) 41 NSWLR 680 at 694; BC9701914 per Young J (reasoning that cremation is nowadays the equivalent to burial); Re St Augustine’s Churchyard, Droitwich Spa [2016] 1 WLR 3365; [2016] ECC Wor 2 at [54], [55], [57] per Mynors CH. (1986) 7 BPR 15,097 at 15,098 (his Honour deciding that the executor, who was the widow of the deceased, was entitled to possession of the deceased’s ashes and to return them to England, as against the claims of the deceased’s son, who wished to spread half the ashes in a cemetery rose garden). See also Leeburn v Derndorfer (2004) 14 VR 100; [2004] VSC 172; BC200403251 at [15] per Byrne J; Doherty v Doherty [2007] 2 Qd R 259; [2006] QSC 257; BC200607334 at [16] per Jones J. Leeburn v Derndorfer (2004) 14 VR 100; [2004] VSC 172; BC200403251 at [27] per Byrne J. Leeburn v Derndorfer (2004) 14 VR 100; [2004] VSC 172; BC200403251 at [28] per Byrne J; Doherty v Doherty [2007] 2 Qd R 259; [2006] QSC 257; BC200607334 at [26]–[30] per Jones J (likening the

26. 27.

28.

29.

30.

31. 32.

33.

34.

35.

trust in question to one ‘directly or indirectly for the benefit of ascertainable beneficiaries’ (per Goff J in Re Denley’s Trust Deed [1969] 1 Ch 373, a case otherwise not endorsed by Australian courts outside this context: see Dal Pont, pp 552–3), the beneficiaries in question being the relatives of the deceased). See 11.29, 11.79. See, for example, Boni v Larwood [2014] SASC 185; BC201410953 (where the name of the deceased’s son as it was to appear on the deceased’s headstone was alleged to foster fear in the son, because it was the name the deceased used in allegedly abusing the son). Cf the scenario where there is a dispute over the content of a headstone or memorial independent of the deceased’s wishes, in which event it cannot be said with certainty that the personal representatives’ views are determinative: see the discussion in Re St Augustine’s Churchyard, Droitwich Spa [2016] 1 WLR 3365; [2016] ECC Wor 2 at [54]–[76] per Mynors CH. Burnes v Richards (1993) 7 BPR 15,104; BC9302160; Privet v Vovk [2003] NSWSC 1038; BC200306958 at [12], [13] per Bryson J; Leeburn v Derndorfer (2004) 14 VR 100; [2004] VSC 172; BC200403251 at [16] per Byrne J. Williams v Williams (1882) 20 Ch D 659 at 665 per Kay J; Meier v Bell (SC(Vic), Ashley J, 3 March 1997, unreported) BC9700457 at 6; University Hospital Lewinsham NHS Trust v Hamuth [2007] WTLR 309; [2006] EWHC 1609 (Ch) at [13] per Hart J. Contra P D G Skegg, ‘Human Corpses, Medical Specimens and the Law of Property’ (1975) 4 Anglo-Am L Rev 412 at 416 (who argues that ‘[a] legal system could refuse to recognize property in a corpse, but recognizes a power to give binding directions as to what is to be done with it’). See, for example, Holtham v Arnold (1986) 2 BMLR 123 at 125 per Hoffmann J (who, in a case where the wishes of the deceased’s estranged wife conflicted with those of his partner, branded it ‘virtually impossible for a court to express any moral judgement’, such that ‘the only course really open to the court is to decide the matter according to law and the law … is that the person lawfully entitled to administration has the duty to conduct the funeral’); Re St Augustine’s Churchyard, Droitwich Spa [2016] 1 WLR 3365; [2016] ECC Wor 2 at [70]–[82] per Mynors CH. Takamore v Clarke [2012] 1 NZLR 573; [2011] NZCA 587 at [212] per Glazebrook and Wild JJ (aff’d Takamore v Clarke [2013] 2 NZLR 733; [2012] NZSC 116; BC201266178). See H Conway, ‘Dead, but not Buried: Bodies, Burial and Family Conflicts’ (2003) 23 LS 423; Victorian Law Reform Commission, Funeral and Burial Instructions, Consultation Paper, November 2015 (raising the question whether the law should be altered (by statute) to allow a person to leave binding instructions as to the method and place of burial and associated rituals, although proffering other options for consideration). Privet v Vovk [2003] NSWSC 1038; BC200306958 at [13] per Bryson J; Takamore v Clarke [2013] 2 NZLR 733; [2012] NZSC 116; BC201266178 at [156] per Blanchard JJ, joined by Tipping and McGrath JJ; Anstey v Mundle [2016] WTLR 931; [2016] EWHC 1073 (Ch) at [30], [45] per Mr Jonathan Klein. Jones v Dodd (1999) 73 SASR 328; [1999] SASC 125; BC9901262 at [51] (FC); Takamore v Clarke [2013] 2 NZLR 733; [2012] NZSC 116; BC201266178 at [152] per Blanchard JJ, joined by Tipping and McGrath JJ. The contrary view expressed by Martin J in Calma v Sesar (1992) 106 FLR 446 at 452 that the solution ‘will not embrace the resolution of possibly competing spiritual or cultural values’ has, to this end, been largely rejected. See also Dow v Hoskins [2003] VSC 206; BC200303278 at [43] per Cummins J. Smith v Tamworth City Council (1997) 41 NSWLR 680 at 694; BC9701914 per Young J; Milenkovic v McConnell [2013] WASC 421; BC201316408 at [40], [41] per McKechnie J; Takamore v Clarke

36.

37. 38.

39.

40.

41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51.

[2013] 2 NZLR 733; [2012] NZSC 116; BC201266178 at [156] per Blanchard JJ, joined by Tipping and McGrath JJ (though noting that consultation ‘may not be practical in circumstances of urgency’ and that the personal representative is ‘entitled to have regard to practicalities of achieving burial or cremation without undue delay’). Smith v Tamworth City Council (1997) 41 NSWLR 680 at 694; BC9701914 per Young J; Jones v Dodd (1999) 73 SASR 328; [1999] SASC 125; BC9901262 at [51] (FC); Manktelow v Public Trustee (2001) 25 WAR 126; [2001] WASC 290; BC200106536 at [23] per Hasluck J; Leeburn v Derndorfer (2004) 14 VR 100; [2004] VSC 172; BC200403251 at [16] per Byrne J; Takamore v Clarke [2012] 1 NZLR 573; [2011] NZCA 587 at [219]–[225], [237], [259] per Glazebrook and Wild JJ (aff’d Takamore v Clarke [2013] 2 NZLR 733; [2012] NZSC 116; BC201266178); Darcy v Duckett [2016] NSWSC 1756; BC201610601 at [34]–[41] per Campbell J. Takamore v Clarke [2013] 2 NZLR 733; [2012] NZSC 116; BC201266178 at [158] per Blanchard JJ, joined by Tipping and McGrath JJ. See Transplantation and Anatomy Act 1978 (ACT) Pt 3; Human Tissue Act 1983 (NSW) Pt 4; Transplantation and Anatomy Act 1979 (NT) Pt 3; Transplantation and Anatomy Act 1979 (Qld) Pts 3, 5; Transplantation and Anatomy Act 1983 (SA) Pts 3, 5; Human Tissue Act 1985 (Tas) Pt III; Human Tissue Act 1982 (Vic) Pts IV, VI; Human Tissue and Transplant Act 1982 (WA) Pt III. See Cemeteries and Crematoria Regulation 2003 (ACT) s 8; Public Health (Disposal of Bodies) Regulation 2002 (NSW) cl 34; Cemeteries Act 1952 (NT) s 18; Cremations Act 2003 (Qld) ss 7, 8 (see Reid v Crimp [2004] QSC 304; BC200406049; Laing v Laing [2014] QSC 194; BC201406775); Burial and Cremation Act 2013 (SA) s 9(3); Cemeteries Act 1958 (Vic) s 77(2); Cremation Act 1929 (WA) ss 8A(b), 13. Reece v Little [2009] WASC 30; BC20090065 at [17] per Templeman J; Takamore v Clarke [2013] 2 NZLR 733; [2012] NZSC 116; BC201266178 at [145] per Blanchard JJ, joined by Tipping and McGrath JJ. See 11.78. Brown v Tullock (1992) 7 BPR 15,101 at 15,102 per Waddell CJ in Eq; Burrows v Cramley [2002] WASC 47; BC200200996 at [26] per Pullin J. This was a reason against a blanket rule advanced by William Young J, dissenting, in Takamore v Clarke [2013] 2 NZLR 733; [2012] NZSC 116; BC201266178 at [184], [205]. Meier v Bell (SC(Vic), Ashley J, 3 March 1997, unreported) BC9700457 at 7; Reece v Little [2009] WASC 30; BC20090065 at [17] per Templeman J. See 10.23–10.26. Smith v Tamworth City Council (1997) 41 NSWLR 680 at 691; BC9701914 per Young J. Smith v Tamworth City Council (1997) 41 NSWLR 680 at 694; BC9701914 per Young J. Jones v Dodd (1999) 73 SASR 328; [1999] SASC 125; BC9901262 at [37]–[46] per Perry J. Burrows v Cramley [2002] WASC 47; BC200200996 at [27] per Pullin J. Burrows v Cramley [2002] WASC 47; BC200200996 at [27] per Pullin J. See, for example, Brown v Tullock (1992) 7 BPR 15,101 (where Waddell CJ in Eq ruled that, as the deceased’s de facto spouse was likely to be the sole beneficiary, she would likely be granted administration ahead of the deceased’s brother, and so she was entitled to decide where the deceased should be buried); Saleh v Reichert (1993) 104 DLR (4th) 384 at 388–90 per Bell J (Gen Div(Ont Ct)) (deceased’s husband ahead of deceased’s parents); Doherty v Doherty [2007] 2 Qd R 259; [2006] QSC 257; BC200607334 at [19] per Jones J (deceased’s wife favoured ahead of deceased’s mother and sisters); Dodd v Jones (2009) 205 LSJS 105; [2009] SASC 458; BC200907405 (deceased’s de facto spouse granted power to determine burial arrangements ahead of the deceased’s

52. 53.

54. 55. 56. 57. 58. 59.

60. 61.

62. 63. 64. 65.

father because, Doyle CJ explained, ‘the claim of a de facto spouse of nine years standing, who has two children by the deceased, is a strong one on any view of the practices and attitudes that prevail in our society’: at [37]); Reece v Little [2009] WASC 30; BC20090065 at [20] per Templeman J (similar to Brown v Tullock); Darcy v Duckett [2016] NSWSC 1756; BC201610601 (deceased’s de facto spouse ahead of deceased’s sister). (1999) 73 SASR 328; [1999] SASC 125; BC9901262. Jones v Dodd (1999) 73 SASR 328; [1999] SASC 125; BC9901262 at [68], [69]. See also Dow v Hoskins [2003] VSC 206; BC200303278 at [43] per Cummins J (in establishing the ‘right of burial’ the ‘administrator test is the proper prima facie test but not to the necessary exclusion of cultural or other factors where such factors substantially arise on the evidence before the court’); State of South Australia v Smith (2014) 119 SASR 247; [2014] SASC 64; BC201403761 at [34] per Nicholson J. See, for example, State of South Australia v Smith (2014) 119 SASR 247; [2014] SASC 64; BC201403761 at [55]–[74] per Nicholson J. Jones v Dodd (1999) 73 SASR 328; [1999] SASC 125; BC9901262 at [50]. Jones v Dodd (1999) 73 SASR 328; [1999] SASC 125; BC9901262 at [51]. See Burrows v Cramley [2002] WASC 47; BC200200996 at [28] per Pullin J. See 12.19, 12.20. Re Atkinson (deceased) [1971] VR 612 at 616 per Gillard J; Tschirn v Australian Executor Trustees Ltd [2016] SASC 149; BC201608582 at [59] per Doyle J (in each case highlighting that personal representatives are not bound to use their own funds to pursue legal proceedings on the estate’s behalf, and that if there are no estate assets from which to fund the proceedings, and no indemnity from a beneficiary or beneficiaries is forthcoming, it is generally appropriate to refrain from commencing the contemplated proceedings). As to the power to compromise, see 13.28–13.31. NSW s 81A(1), (2); NT RSC r 88.27; SA s 121A(1), (2) (a contravention or failure to comply constitutes a summary offence: SA s 121A(5)); Tas s 26; Tas PR r 63; Vic s 28(1); Vic 2014 rr 2.04, 3.02, 4.04; WA s 43(1)(b); WA 1967 r 9B (but does not apply where the applicant is the Public Trustee or a corporation authorised by law to obtain a grant, or where the court or the registrar, in special circumstances, so directs: WA 1967 r 9B(3)). There are many older English authorities dealing with circumstances in which an inventory may be required: see Williams, Mortimer and Sunnucks, pp 782–6. NSW s 81B(1); SA s 121A(3) (a contravention or failure to comply constitutes a summary offence: SA s 121A(5)). NSW s 81B(3); SA s 121A(4). Wood v McLean (2010) 31 VR 12; [2010] VSC 550; BC201009292 at [27] per Sifris J. See, for example, Ramage v Waclaw (1988) 12 NSWLR 84 (where the claimant, who asserted an interest as tenant-in-common with her deceased sister in a house occupied by both of them, where the deceased had transferred her interest to her children prior to her death without the claimant’s knowledge, was held, as universal legatee under the deceased’s will, to have standing to bring proceedings on behalf of the estate to challenge the validity of the transfer on the grounds of undue influence where the executor had failed or refused to bring those proceedings). Cf Wood v McLean (2010) 31 VR 12; [2010] VSC 550; BC201009292 (where the deceased’s inter vivos transfer of property to his daughter was challenged by the deceased’s other children on the ground of unconscionable conduct, Sifris J held that the other children, who were not beneficiaries under the deceased’s will, lacked standing to commence proceedings when the executor refused to bring those proceedings; his Honour found that the other children had no present or existing interest in the estate, and that a mere possibility or even probability (via a family provision claim) did not suffice: at

66. 67. 68. 69. 70. 71. 72. 73.

74. 75. 76.

77. 78. 79.

80.

81.

82. 83. 84.

[92]). In the Will of Lanfear (deceased) (1940) 57 WN (NSW) 181 at 183 per Williams J. See Dal Pont, pp 724–6. Chesney v Tognola [2011] QSC 340; BC201108987 at [23] per Douglas J. See 17.45–17.47. Larke v Negus [2000] WTLR 1033 at 1044 per Brandon LJ (decided in 1979). See 23.32–23.34. See generally Williams, Mortimer and Sunnucks, pp 732–9. Angullia v Estate and Trust Agencies (1927) Ltd [1938] AC 624 at 634 per Lord Romer (PC). This, of course, assumes that the duties under the contracts in question survive the deceased’s death. The terms of the contract themselves may dictate otherwise: see, for example, McDonald v McDonald (1935) 35 SR (NSW) 173. In the case of contracts for personal services, moreover, the general rule is that the death of either party brings the contract to an end, and so this must inform the obligations of personal representatives vis-à-vis personal contracts of the deceased. See, for example, Farrow v Wilson (1869) LR 4 CP 744 (where Willes J observed that ‘[w]here … personal considerations are of the foundation of the contract, as in cases of principal and agent and master and servant, the death of either party puts an end to the relation; and, in respect of service after the death, the contract is dissolved, unless there be a stipulation express or implied to the contrary’: at 746). See further Williams, Mortimer and Sunnucks, pp 738–9. (1866) LR 3 Eq 98. Cooper v Jarman (1866) LR 3 Eq 98 at 101. Angullia v Estate and Trust Agencies (1927) Ltd [1938] AC 624 at 634 per Lord Romer (PC) (who followed Cooper v Jarman in a case exhibiting factual similarities: at 639). See also Re Day [1898] 2 Ch 510 at 513 per North J (who remarked that Cooper v Jarman ‘lays down an intelligible principle’ and ‘has been unreversed for a great many years’). Cf Re Rushbrook’s Will Trusts [1948] Ch 421 (where the disclaimer by the executors of a contract to repair buildings forming part of the estate did not preclude the entitlement of specific devisees to require that the cost of the repairs, up to a sum not exceeding the contract price, be paid from the testator’s personal estate). Angullia v Estate and Trust Agencies (1927) Ltd [1938] AC 624 at 635, 639 per Lord Romer (PC). (1883) 29 Ch D 358 at 361. Re Rownson (1883) 29 Ch D 358 at 363. See also Midgley v Midgley [1893] 3 Ch 282 at 299 per Lindley LJ (‘it is the executor’s duty to protect the estate against demands which by law cannot be enforced against it’, which his Lordship described as ‘a wholesome principle, not to be cut away or narrowed’). Re Lovett (1876) 3 Ch D 198 at 203 per Malins VC; Midgley v Midgley [1893] 3 Ch 282 at 304 per A L Smith LJ (‘If an executor pays what he ought not to pay he is guilty of a devastavit’). As to an action on a devastavit, see 12.44. Hill v Walker (1858) 4 K & J 166 at 169; 70 ER 69 at 71 per Wood VC (‘It certainly cannot be considered to be law at the present day, that executors, paying a debt against the recovery of which the Statute of Limitations might be pleaded as a legal bar, render themselves liable over to those who are interested in the testator’s property. Instances of such payments must very frequently have occurred, and yet I am not aware of any case in which an executor, paying such a debt, has been held to incur any liability’). Re Rownson (1883) 29 Ch D 358 at 362 per Cotton LJ. Re Rownson (1883) 29 Ch D 358 at 365 per Fry LJ. Re Rownson (1883) 29 Ch D 358 at 362–3 per Cotton LJ (having earlier said that ‘[w]e know that

there are some people, both Judges and other persons, who think that to plead the Statute of Limitations is unconscionable’: at 362). 85. Re Rownson (1883) 29 Ch D 358 at 364 per Bowen LJ. 86. Midgley v Midgley [1893] 3 Ch 282 at 299 per Lindley LJ (‘an anomalous principle is not to be extended, but is to be confined within the limits of its own anomaly’). 87. Midgley v Midgley [1893] 3 Ch 282 at 299 per Lindley LJ (adding that the executor or administrator, in these circumstances, ‘has no business to throw over the protection which the decision of the court has given him’: at 300). 88. [1893] 3 Ch 282 at 303. See also at 304 per A L Smith LJ. 89. Limitation Act 1969 (NSW) s 63. 90. [2010] NSWSC 1470; BC201009720 at [58] per White J. 91. See, for example, Permanent Trustee Co Ltd v Bernera Holdings Pty Ltd (2004) 182 FLR 431; [2004] NSWSC 56; BC200400430 at [67] per Young CJ in Eq; Ellis v Ellis [2015] WASC 77; BC201501125 at [45] per E M Heenan J. 92. See, for example, Re O’Reilly [2015] VSC 708; BC201512591 at [77]–[79] per McMillan J (who, as a result, considered that the ‘anomalous exception’ was ‘unlikely to apply in Victoria’: at [79]; her Honour added that ‘if it were open to the Court to grant administration to a creditor whose debt is statute barred, opportunistic creditors may be tempted not to bring their stale claims against the debtor while still alive, and instead wait until the debtor is deceased and then seek administration’: at [86]). 93. See 12.15. 94. Fitch v Hyde-Cates (1981) 150 CLR 482 at 487–8; BC8200055 per Mason J. See, for example, Hambly v Trott (1776) 1 Cowp 371; 98 ER 1136 (action in trover does not lie against an executor for a conversion by his testator). 95. See R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Australia, 2013, pp 402–4. 96. Civil Law (Wrongs) Act 2002 (ACT) s 15(1); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(1); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 5(1); Qld s 66(1); Survival of Causes of Action Act 1940 (SA) s 2(1); Tas s 27(1); Vic s 29(1); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(1). These provisions are based on the Law Reform (Miscellaneous Provisions) Act 1934 (UK). 97. Civil Law (Wrongs) Act 2002 (ACT) s 15(2); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(1); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 5(2); Qld s 66(1); Survival of Causes of Action Act 1940 (SA) s 2(2); Vic s 29(1); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(1). 98. Civil Law (Wrongs) Act 2002 (ACT) s 16(2); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(2)(a)(i); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 6(1)(a); Qld s 66(2)(b); Survival of Causes of Action Act 1940 (SA) s 3(1)(b); Tas s 27(3)(a); Vic s 29(2)(a); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(2)(a). 99. Civil Law (Wrongs) Act 2002 (ACT) s 16(3), (4); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(2)(c), (2)(d) (and see Dust Diseases Tribunal Act 1989 (NSW) s 12B); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 6; Qld s 66(2)–(2B); Survival of Causes of Action Act 1940 (SA) s 3; Tas s 27(3)(c), (3A)–(3C); Vic s 29(2)(c), (2A); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(2), (2a). 100. Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 7; Survival of Causes of Action Act 1940 (SA) s 4; Tas s 27(5), (6); Vic s 29(3), (3A). 101. Civil Law (Wrongs) Act 2002 (ACT) s 17; Law Reform (Miscellaneous Provisions) Act 1944 (NSW)

102. 103. 104. 105. 106. 107.

108. 109.

110.

111.

112. 113.

s 2(4); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 8; Qld s 66(3); Survival of Causes of Action Act 1940 (SA) s 5; Tas s 27(4); Vic s 29(4); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(4). See 11.83. Re Marsden (1884) 26 Ch D 783 at 790 per Kay J (emphasis supplied). See 12.45. See 13.46. Johnson v Trotter (2006) 12 BPR 23,339; [2006] NSWSC 67; BC200600661 at [23] per White J. Other applications of fiduciary duties in this context include the proscription against an executor establishing a business in competition with that of the testator (see, for example, Re Thomson [1930] 1 Ch 203 at 213–16 per Clauson J), that against renewing the testator’s lease in the executor’s own name and capacity (see, for example, Re Morgan (1881) 18 Ch D 93; Re Knowles’ Will Trusts [1948] 1 All ER 866; see also Williams, Mortimer and Sunnucks, p 938) and that against misleading other executors in an attempt to favour one’s own interests (see, for example, Brine v Carter [2015] SASC 205; BC201513017). The chief application of the ‘purchase rule’ (also known as the ‘self-dealing rule’) is in the context of trustees purchasing trust property: see Dal Pont, pp 675–8; Jacobs, pp 379–83. Equity treats any such transaction as voidable at the instance of the beneficiaries, however open or honest the fiduciary’s conduct and however fair the price: Hall v Hallett (1784) 1 Cox 134; 29 ER 1096; Morse v Royal (1806) 12 Ves 355; 33 ER 134; Farrell v Cox (1898) 19 LR (NSW) Eq 103; Re City of Sydney Real Estate Co Ltd (1928) 29 SR (NSW) 80 at 86–9 per Street CJ, with whom Ferguson and Campbell JJ concurred; Tito v Waddell (No 2) [1977] Ch 106 at 240 per Megarry VC. See, for example, Kane v Radley-Kane [1999] Ch 274; Staub v Staub Estate (2003) 226 DLR (4th) 327 (where the Alberta Court of Appeal held that an executor’s sale of estate property, in which he had been living, to the testator’s mother amounted to a breach of the purchase rule, as the executor had acted in conflict between interest and duty); Hall v Peck [2011] WTLR 605 (where the plaintiff, whose entitlement to share in her deceased parents’ estate was shared equally with her brother, who was the defendant and executor of their parents’ wills, succeeded in having set aside the purchase by the defendant of the parents’ matrimonial home; Paul Girolami QC, sitting as a judge in the Chancery Division of the English High Court, found the defendant to have committed a breach of fiduciary duty once he had contracted to purchase the property but been unable to complete within the contractually stipulated time, at which time there arose a potential for a conflict between his interest as purchaser and his duty as executor); Re Chomley (2014) 10 ASTLR 338; [2014] VSC 220; BC201403640 (where McMilllan J refused one of the administrators liberty to bid at the auction of estate property). Any suggestion that the rigour of the rule ought be relaxed (see, for example, Holder v Holder [1968] Ch 353 at 402–3 per Sachs LJ) has not found favour in the antipodes: see Calvo v Sweeney [2009] NSWSC 719; BC200906583 at [236]–[242] per White J; Chellew v Excell [2009] 1 NZLR 711 at [34]–[45] per Allan J. See, for example, Sargeant v National Westminster Bank plc (1991) 61 P & CR 518. The fact that a personal representative can be authorised to purchase estate property highlights the separate capacities in which a personal representative may act; he or she can, as personal representative, contract with himself or herself in a private or personal capacity: see, for example, Rowley, Holmes & Co v Barber [1977] 1 All ER 801 at 805–6 per Kilner Brown J. See, for example, Re Mulholland’s Will Trusts [1949] 1 All ER 460 (contractual right); Newman v Clarke [2017] 4 WLR 26; [2016] EWHC 2959 (Ch) (statutory right). On the transition from executor to trustee, see 10.45, 10.46.

114. Brown v Brown [1999] NSWSC 383; BC9901999 at [53], [54] per Bryson J; Johnson v Trotter (2006) 12 BPR 23,339; [2006] NSWSC 67; BC200600661 at [26], [27] per White J. 115. See 12.21–12.23. 116. See 12.1. 117. See 10.45, 10.46. 118. As to trustees’ duty to invest, see Dal Pont, pp 684–91; Jacobs, Ch 18. 119. See ACT s 14; NSW s 14; NT s 5; Qld s 21; SA s 6; Tas s 6; Vic s 5; WA s 17. Some repetition to this effect is found in the Tasmanian and Victorian probate statutes, which state that, during the minority of any beneficiary or the subsistence of any life interest and pending the distribution of the estate, the personal representatives may invest the money remaining to be distributed in any investments for the time being authorised by law for the investment of trust money, with power at their discretion to change such investments for others of a like nature: Tas s 33(3); Vic s 38(3). 120. Compare Johnson v Newton (1853) 11 Hare 160 at 167; 68 ER 1230 at 1233 per Page Wood VC (‘No case has been cited in the argument, nor do I know of any case in which executors, who have merely left moneys belonging to the estate in the hands of the bankers of the testator, for a period of no more than nine months after his decease, have been held liable to make good the fund lost by the failure of the bankers. The executors are no doubt bound to exercise their judgment on the safety of the place of deposit, whether it be that which the testator had in his lifetime chosen, or whether it be selected by themselves’) with Moyle v Moyle (1831) 2 Russ & My 710; 39 ER 565 (where executors who, for beyond a year after the testator’s death, allowed a considerable portion of the estate assets to lie unproductive in the hands of a banker who failed, were charged with the loss). 121. Wilks v Groom (1856) 3 Drew 584; 61 ER 1026. The duty to keep estate property separate from other property derives in part from the fiduciary duty imposed on executors (and trustees): see generally 12.21–12.23. 122. In the Will of Thompson [1910] VLR 251 at 254 per A’Beckett J. 123. (SC(NSW), Cohen J, 14 October 1992, unreported) BC9201556. 124. Howling v Kristofferson (SC(NSW), Cohen J, 14 October 1992, unreported) BC9201556 at 16. 125. Mangraviti v Donato [2009] NSWSC 1258; BC200910456 at [39] per Rein J. 126. [2009] NSWSC 1258; BC200910456. 127. Hill v Curtis (1865) LR 1 Eq 90 at 98 per Page Wood VC (‘an executor cannot discharge himself by accounting to his co-executor, because he is himself authorized, and it is his duty, to see how the assets are applied’); Re Skinner (deceased) [1958] 3 All ER 273 at 277 per Sachs J (‘there can be no assignment of the office of executor as it is an office of personal trust’). 128. See, for example, Re Mulligan (deceased) [1998] 1 NZLR 481 (in the context of trustees). 129. There is nothing to preclude a testator from making express provision, via the terms of the will, for the delegation of executorial functions, in which case any delegation is, within the confines of those terms (and overlaying fiduciary duties), a legitimate exercise of executorial power. 130. See 10.12, 10.13. 131. See P.16. 132. The delegation permitted in the territories, New South Wales, Tasmania and Victoria is limited to where a trustee is out of state, or is about to depart from it: ACT s 64; NSW s 64; NT 1907 s 3; Tas s 25AA; Vic s 30. The Queensland and Western Australian provisions extend to a trustee who may by reason of physical infirmity become temporarily incapable of performing all of her or his duties as a trustee, and in respect of a trustee who is a member of the armed forces: Qld s 56 (which applies notwithstanding anything to the contrary in the trust instrument: s 31(1)); WA s 54. The South Australian provision is broader again, entitling a trustee to ‘delegate to any person or persons residing in the State all or any of the powers, authorities and discretions vested in him as trustee

either alone or jointly with any other person or persons’: SA s 17(1). See Jacobs, pp 366–8. 133. See, for example, Re Wild [2003] 1 Qd R 459; [2002] QSC 200; BC200203922 (where White J ruled that Trusts Act 1973 (Qld) s 56(1) — under which ‘[a] trustee who … is … temporarily incapable of performing all duties as a trustee may … by power of attorney … delegate to any person resident in the State the execution or exercise during the trustee’s incapacity … of all trusts … vested in the trustee as such trustee’ — enables an executor to delegate the whole of his or her executorial and trustee powers, albeit temporarily: at [18]). 134. (1883) 22 Ch D 727 at 762–3 (aff’d Speight v Gaunt (1883) 9 App Cas 1). See also at 739–40 per Jessel MR, at 756–60 per Lindley LJ; Learoyd v Whiteley (1887) 12 App Cas 727 at 731–2 per Lord Halsbury LC, at 734 per Lord Watson; Macartney v Macartney [1909] VLR 183 at 191–2 per Hodges J; Estate of Purdon (1935) 53 WN (NSW) 148 at 148–9 per Nicholas J. 135. As to the standard of care expected of executors, see 12.2, 12.3. 136. See, for example, Swanson v Emmerton [1909] VLR 387 at 390–1 per Cussen J (who found that, having regard to the magnitude and nature of the estate, the nature of the trusts in the will, and the necessity of having properly kept accounts on hand, it was reasonable for the trustees to employ accountants to keep accounts). 137. ACT s 53; NSW s 53; Qld s 54; Vic s 28; WA s 53. See Dal Pont, pp 669–70; Jacobs, pp 360–5. 138. An agent who has a (potential) conflict of interest (such as a lawyer who owes duties to another client) is not a suitable agent: Wilkinson v Feldworth Financial Services Pty Ltd (1998) 29 ACSR 642 at 694 per Rolfe J. 139. Fry v Tapson (1884) 28 Ch D 268 at 280 per Kay J. 140. See, for example, Challen v Shippam (1845) 4 Hare 555; 67 ER 768 (where an executor who, in the course of administration, deposited estate moneys with his bankers, accompanied by an order in writing to invest the money in consols, was held answerable for the bankers’ omission to make the investment, having made no inquiry respecting the investment for some 5 months afterwards, when the bankers became bankrupt). 141. Re Speight (1883) 22 Ch D 727 at 741–4 per Jessel MR, at 759–62 per Lindley LJ (aff’d Speight v Gaunt (1883) 9 App Cas 1). 142. In the Australian Capital Territory, ‘honestly’. 143. See 12.54, 12.55. 144. Freeman v Fairlie (1812) 3 Mer 24 at 36; 36 ER 10 at 17–18. 145. Pearse v Green (1819) 1 Jac & W 135 at 140; 37 ER 327 at 329. See also Kemp v Burn (1863) 4 Giff 348 at 349–50; 66 ER 740 at 740–1 per Sir John Stuart VC (‘In a case like the present, where an account is demanded of trustees and executors of a will by a residuary legatee, there seems to me no doubt what the duty of the executors is. Their duty is to keep proper accounts, and to have them always ready when called upon to render them’). 146. As to trustees’ duty to account, see Dal Pont, pp 665–6. 147. Re Tapp (SC(NT), Kearney J, 5 December 1996, unreported) BC9606009 at 16–17. 148. See, for example, Dear v Rich (1920) 22 WALR 69. As to revocation of probate or administration generally, see 11.94–11.112. 149. Re Estate of Orre (SC(NSW), Powell J, 19 December 1991, unreported) BC9101324 at 5; Hill v Roberts (SC(Vic), Ashley J, 27 October 1995, unreported) BC9502508 at 32–3; Re Tapp (SC(NT), Kearney J, 5 December 1996, unreported) BC9606009 at 17; Jones v Estate of Farley (SC(NSW), Santow J, 10 October 1997, unreported) BC9705747 at 28–9; Yates v Halliday [2006] NSWSC 1346; BC200610139 at [58] per Lloyd AJ. 150. Williams v Stephens (SC(NSW), Young J, 24 March 1986, unreported) BC8601164 at 3–4. See, for

151.

152.

153. 154.

155. 156. 157. 158. 159. 160. 161. 162. 163. 164. 165. 166. 167. 168. 169. 170. 171. 172. 173.

example, Yates v Halliday [2006] NSWSC 1346; BC200610139 (a case involving an executor’s ‘persistent and unjustified refusal to produce proper and complete accounts to the beneficiaries when asked to do so’, which Lloyd AJ found to be ‘a clear breach of his duty’: at [54]). See, for example, Glazier Holdings Pty Ltd v Australian Men’s Health Pty Ltd (No 2) [2001] NSWSC 6; BC200100163 at [38] per Austin J (rev’d but not on this point: Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146; [2002] NSWCA 22; BC200200709); Chong v Chanell [2009] NSWSC 765; BC200907155 at [7] per Brereton J. The reference to ‘common form’ is directed, inter alia, to distinguish the account, grounded in an alleged breach of trust, on the basis of wilful default: see 12.47, 12.48. The National Committee for Uniform Succession Laws, considering it ‘desirable to encourage openness in the administration of estates’, has recommended that model legislation should expressly confer on beneficiaries an entitlement to inspect the documents that relate to the administration of the estate: QLRC, Report 65, Vol 1, p 369. Re Tillott [1892] 1 Ch 86 at 89 per Chitty J. Ottley v Gilby (1845) 8 Beav 602 at 604; 80 ER 237 at 238 per Lord Langdale MR (‘a legatee has a clear right to have a satisfactory explanation of the state of the testator’s assets, and an inspection of the accounts, but he had no right to require a copy of the accounts at the expense of the estate’); Williams v Stephens (SC(NSW), Young J, 24 March 1986, unreported) BC8601164 at 3–4; Re Schilling [1995] 1 Qd R 696 at 697–8 per Ryan J; Hill v Roberts (SC(Vic), Ashley J, 27 October 1995, unreported) BC9502508 at 32. The National Committee for Uniform Succession Laws has recommended that model legislation make specific provision to this effect: QLRC, Report 65, Vol 1, p 370. See 12.15. As to commission, see 13.43–13.73. QLRC, Report 65, Vol 1, p 357. ‘Beneficiary’, in an estate, includes: (a) a person with a beneficial interest in the estate; and (b) a person with a right to compel the executor or administrator of the estate to complete the administration: ACT CPR r 2745; Qld UCPR r 644(4). ACT CPR r 2746(1); Qld UCPR r 644(1). The applicant must file an affidavit stating the reasons for the application: ACT CPR r 2746(2); Qld UCPR r 644(2). In the Australian Capital Territory, 3 months; in Queensland, 2 months. ACT CPR r 2747(1)–(3); Qld UCPR r 645(1). ACT CPR r 2747(5); Qld UCPR r 645(3). ACT CPR r 2749(1), (2); Qld UCPR r 647(1), (2). As to the prescribed notice, see ACT CPR r 2749(3); Qld UCPR r 647(3). ACT CPR r 2750(1), (2) (refers to ‘notice’ in place of ‘memorandum’); Qld UCPR r 648(1). ACT CPR r 2752(1); Qld UCPR r 650(1). ACT CPR r 2752(2); Qld UCPR r 650(2). ACT CPR r 2752(6); Qld UCPR r 650(6). ACT CPR r 2753(1); Qld UCPR r 650(7). ACT CPR r 2754(1); Qld UCPR r 651(1). ACT s 58(2). ACT s 58(3), (4). The court rules refer to ‘anything else the [personal representative] is required … by law to do in relation to the estate’ (ACT CPR r 3115(1)), which includes the duty to account: see generally 12.30–12.42. ACT CPR r 3115.

174. As to orders to collect and administer see 11.113. 175. ACT s 101. 176. The time period is prescribed by NSW RSC Pt 78 r 85(1), but a personal representative may, in the proceedings for the grant, move for any order extending the period, including an order extending the period until the further order of the court, without the prior filing or service of notice of the motion: NSW RSC Pt 78 r 85(2). 177. NSW s 85(1AA). 178. NSW s 85(1A). 179. Hons v Hons (2010) 3 ASTLR 278; [2010] NSWSC 247; BC201001887 at [85] per Ward J. 180. See, for example, Davis v Davis [2014] WASC 395; BC201409730 (where Jenkins J made an order for an account, even though probate had been granted some 12 years earlier, in order to give effect to executor’s obligation (and failure to meet it) and assist the bringing to an end of the administration: at [47]–[50], [58]–[67]). 181. Hons v Hons (2010) 3 ASTLR 278; [2010] NSWSC 247; BC201001887 at [100] per Ward J (and on the facts it was also influenced by the absence of the relevant records, the administrator’s reliance on (incorrect) legal advice, and the small size of the estate, making it both futile and disproportionate cost-wise to order an account: at [116]–[131]). 182. NSW s 85(1B). 183. NSW s 85(2). 184. NSW s 85(3). 185. NSW s 85(4). This subsection was inserted to address the upshot of In the Will of Lucas-Tooth (1932) 50 WN (NSW) 86 at 87, where Harvey J held that the disallowance of an item by the registrar did not determine the liability of the executor to repay the money to the estate. See Shave v Shave (2011) 5 ASTLR 320; [2011] NSWSC 1356; BC201108915 at [19], [20] per White J (adding that the implication for NSW s 85(4) is not that the court can deal only with expenses that have been paid, but that ‘the court can determine what expenses are proper to be paid from the estate and as an incident of that power, can order reimbursement of improper expenses that have been paid’: at [20]). The National Committee for Uniform Succession Laws has recommended that model legislation make equivalent provision, reasoning that ‘[b]y empowering the court to order that an amount that has been disallowed on the passing of accounts be refunded to the estate, it increases the efficacy of the passing of accounts’: QLRC, Report 65, Vol 1, p 361. 186. NSW s 85(5). 187. NSW Trustee and Guardian Act 2009 (NSW) s 32. 188. NSW s 87(1); NT s 91(1). 189. NSW s 87(2); NT s 91(2). 190. NSW s 87(3), (4); NT s 91(3), (4). 191. NSW s 88; NT s 92. 192. NT s 89. 193. NT ss 91, 92. 194. This is because SA s 4 defines the term ‘administrator’ to mean ‘any person to whom administration has been granted’, and the term ‘administration’ to mean ‘all letters of administration of the effects of deceased persons, whether with or without the will annexed, and whether granted for general, special, or limited purposes’. 195. SA s 56(1). 196. SA s 56(2). 197. SA s 56A. 198. Public Trustee Act 1995 (SA) s 26(1).

199. 200. 201. 202. 203. 204. 205. 206. 207. 208. 209. 210. 211. 212. 213. 214. 215. 216. 217. 218.

219. 220. 221.

222. 223. 224.

SA s 58(1). SA s 58(2). SA s 58(3). Pursuant to Tas s 54. Tas s 56(1). In the account the personal representative is entitled to credit for payments made before the day specified in the advertisement for claims to be submitted, except as against claimants of whose claims he or she has notice and who are prejudiced by such payments: Tas s 56(2). Tas s 64 (interest being at a rate not exceeding 8 per cent per annum). Vic 2014 r 6.03(1). Vic 2014 r 6.03(2). Vic 2014 r 6.03(3). WA s 43(1)(b). WA 1967 r 37(1). WA 1967 r 37(2). Re Ellis [2015] WASC 77; BC201501125 at [99] per E M Heenan J. As to the so-called ‘executor’s year’, see 14.27, 14.28. WA 1967 r 37(3). WA 1967 r 37(4). WA 1967 r 37(6). WA s 43(2). WA s 44(1), (2). WA s 44(3). In Re Ellis [2015] WASC 77; BC201501125 at [104] E M Heenan J remarked that the passing of accounts by an executor or administrator under WA s 43 and/or WA 1967 r 37 ‘occurs only in a relatively small proportion of estates’. His Honour noted that in the preceding decade the grants of representation in the Supreme Court of Western Australia had been running at the rate of approximately 6,000 or more per annum, whereas the occasions when registrars had been asked to require the passing of accounts, either by a personal representative or by some other person interested, were on average less than 100 per year, ‘although in recent times this frequency has been increasing’. Over two decades earlier the Western Australian Law Reform Commission, fearing that the administrative burden of requiring that accounts be passed in every case as ‘out of all proportion to the requirements of the administration of justice’, favoured that the law be reformed so as to restrict the duty of a personal representative to render an account to when required to do so by the court: Law Reform Commission of Western Australia, The Administration Act 1903, Project No 88, August 1990, p 24. Re Ellis [2015] WASC 77; BC201501125 at [105] per E M Heenan J. In the Matter of the Estate of Ward (SC(WA), Owen J, 9 April 1998, unreported) BC9801241 at 17. The catalogue is not meant to be exhaustive. For example, in Steiner v Strang [2012] NSWSC 919 at [12] White J accepted that if a personal representative refuses to take steps to get in an asset of the estate, there is power, without revoking the grant, to appoint a receiver of that asset if it is in the interests of the estate to do so. See generally Williams, Mortimer and Sunnucks, pp 987–1009. Frost v Bovaird (2014) 223 FCR 275; [2014] FCAFC 20; BC201401265 at [3] per the court. Re Blow [1914] 1 Ch 233 at 240 per Cozens-Hardy MR; National Trustees Executors and Agency Company of Australasia Ltd v Dwyer (1940) 63 CLR 1 at 18; BC4000001 per Latham CJ (in each case the issue arising in the context of identifying the relevant limitation period). The limitation periods applicable to tortious claims, in any case, equate to those applicable for breach of other duties by

225. 226. 227. 228. 229. 230. 231.

232. 233. 234.

235. 236. 237. 238. 239. 240. 241. 242. 243. 244. 245. 246. 247. 248. 249. 250. 251.

252.

personal representatives: see 12.59. Re Stevens [1898] 1 Ch 162 at 176 per Vaughan Williams LJ. Hall v Hallet (1784) 1 Cox 134; 29 ER 1096. See, for example, Bird v Bird (2013) 11 ASTLR 225; [2013] NSWCA 262; BC201311981. See, for example, National Trustees Executors and Agency Company of Australasia Ltd v Dwyer (1940) 63 CLR 1; BC4000001. See, for example, Robinson v Robinson (1851) 1 De GM & G 247; 42 ER 547. Commander Leasing Corp Ltd v Aiyede (1983) 4 DLR (4th) 107 at 110 per Robins JA (CA(Ont)); Re Yorke (deceased) [1997] 4 All ER 907 at 911 per Lindsay J. National Trustees Executors and Agency Company of Australasia Ltd v Dwyer (1940) 63 CLR 1 at 14; BC4000001 per Latham CJ (noting that, as a breach of duty by the executors had been established, ‘[t]he onus was on the executors to show that the estate had not suffered loss by reason of their breach of duty’). Re Stevens [1898] 1 Ch 162 at 176–7 per Vaughan Williams LJ. See J D & K J Zohs Properties Pty Ltd v Ferme [2015] SASC 55; BC201502352 at [9]–[11] per Stanley J. See, for example, J D & K J Zohs Properties Pty Ltd v Ferme [2015] SASC 55; BC201502352 (where an executor, who had legitimately entered into a contract to sell estate land, intentionally and deliberately failed to do what was necessary to effect settlement, stemming from preferring his own interests to the discharge of obligations as an executor). Nocton v Lord Ashburton [1914] AC 932 at 952 per Viscount Haldane LC. See Dal Pont, pp 1067– 76; Meagher, Gummow and Lehane, Ch 23. See Dal Pont, pp 1088–93; Meagher, Gummow and Lehane, Ch 26. See Dal Pont, pp 1164–71; Jacobs, pp 250–7. See Dal Pont, pp 1173–88; Jacobs, pp 258–66. Bethell v Abraham (1873) LR 17 Eq 24 at 27 per Jessel MR; Re Furness (deceased) [1943] Ch 415 at 419–20 per Morton J. Evans v Evans (1910) 10 SR (NSW) 594 at 597. See, for example, Evans v Evans (1910) 10 SR (NSW) 594. See, for example, Re Powers (1885) 30 Ch D 291. See, for example, Dawson v Perpetual Trustee Co (Ltd) (1953) 89 CLR 138. McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 at 634–5 per Young J. Re Wood (deceased) [1961] Qd R 375 at 379 (FC). As to the right to seek the advice and directions of the court, see 13.34–13.39. ACT CPR rr 2700, 2701; NSW UCPR r 54.3; NT RSC r 54.02; Qld UCPR r 11(a); SA SCCR r 206; Tas RSC rr 604, 605; Vic RSC r 54.02; WA RSC O 58 r 2. Re Ellis [2015] WASC 77; BC201501125 at [96] per E M Heenan J. As to orders for an account in this context, see 12.33–12.42. McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 at 634–7 per Young J. Re Tebbs (deceased) [1976] 2 All ER 858 at 863 per Slade J. Sleight v Lawson (1857) 3 K & J 292 at 297; 69 ER 1119 at 1121 per Wood VC; Re Wood (deceased) [1961] Qd R 375 at 378 per Mansfield CJ; Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146; [2002] NSWCA 22; BC200200709 at [46] per Giles JA. Partington v Reynolds (1858) 4 Drew 253 at 255; 62 ER 98 at 98 per Kindersley VC; Re Stevens [1898] 1 Ch 162 at 175 per Chitty LJ; Armitage v Nurse [1998] Ch 241 at 252 per Millett LJ; Coulthard v Disco Mix Club Ltd [1999] 2 All ER 457 at 481 per Jules Sher QC; Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146; [2002] NSWCA 22; BC200200709 at [14] per Giles JA.

253. Russell v Russell (1891) 17 VLR 729 at 732 per Webb J; Re Wood (deceased) [1961] Qd R 375 at 378 per Mansfield CJ; Grace v Grace [2012] NSWSC 976; BC20120659 at [216]–[220] per Brereton J. 254. See 12.30–12.32. 255. Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146; [2002] NSWCA 22; BC200200709 at [66] per Giles JA. 256. Re Wrightson [1908] 1 Ch 789 at 799–800 per Warrington J. 257. Re Tebbs (deceased) [1976] 2 All ER 858 at 863 per Slade J (phrasing the relevant inquiry in the following terms: ‘[I]s the past conduct of the trustees such as to give rise to a reasonable prima facie inference that other breaches of trust not yet known to the plaintiff or the court have occurred?’); Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146; [2002] NSWCA 22; BC200200709 at [46] per Giles JA. 258. Russell v Russell (1891) 17 VLR 729 at 732 per Webb J; Re Tebbs (deceased) [1976] 2 All ER 858 at 863 per Slade J. 259. Re Morish [1939] SASR 305; Perpetual Executors, Trustees and Agency Co (WA) Ltd v Western Australian Trustee, Executor and Agency Co Ltd (1942) 44 WALR 29. 260. Re Tebbs (deceased) [1976] 2 All ER 858 at 863 per Slade J. 261. Bartlett v Barclays Bank Trust Co Ltd (No 2) [1980] Ch 515 at 546 per Brightman LJ; Re Ellis [2015] WASC 77; BC201501125 at [126] per E M Heenan J. 262. Re Tebbs (deceased) [1976] 2 All ER 858 at 863 per Slade J. 263. [1980] Ch 515 at 546. 264. [1976] 2 All ER 858 at 863–4. 265. Re Ellis [2015] WASC 77; BC201501125 at [139] per E M Heenan J. 266. See 12.50–12.52. 267. See 14.55. 268. ACT s 57; NSW s 84; NT s 88; WA s 42. 269. In the will of Clinton (1910) 10 SR (NSW) 465; Re Estate of Romano [2004] NSWSC 775; BC200405446 at [16] per Barrett J. 270. Qld UCPR r 643. 271. ACT CPR r 3115. 272. In the Will of York (1894) 15 LR (NSW) B & P 24 at 25 per Manning J (in the context of an equivalent earlier provision). 273. In the Will of Gannon (1915) 15 SR (NSW) 251 at 255 per Street J. 274. Re Anderson (1953) 53 SR (NSW) 520 at 522 per Myers AJ. 275. As to administration actions, see 12.46. 276. QLRC, Report 65, Vol 2, pp 11–12. 277. Qld s 52(2) (see, for example, Re Hill (SC(Qld), Carter J, 17 June 1988, unreported) (where the testatrix’s son, who was the sole executor and beneficiary of the testatrix’s estate, had transferred to himself the main asset of the estate, thereby depriving the estate of funds to satisfy his sister’s family provision claim; Carter J ordered the son, pursuant to Qld s 52(2), to transfer to his sister a onethird interest in that asset in satisfaction of what would have been the sister’s entitlement to provision from the testatrix)). 278. QLRC, Report 65, Vol 2, p 5. 279. SA s 69(3). 280. SA s 69(4). 281. As to executors de son tort see 10.15–10.20. 282. ACT s 74B; Imperial Acts Application Act 1969 (NSW) s 15; Qld s 52A; Tas s 30; Vic s 31D (before

283. 284. 285. 286. 287.

288. 289. 290.

291. 292.

293.

294.

295. 296. 297.

1 January 2015, when the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic) commenced, the relevant provision was Vic s 33(2)). 30 Chas II c 7 (1678); 4 W & M c 24 s 12 (1692). See 12.19, 12.20. QLRC, Report 65, Vol 2, p 8. See 12.26. Styles v Guy (1849) 1 Mac & G 422 at 429; 41 ER 1328 at 1331 (emphasis supplied). See also the earlier decisions in Hovey v Blakeman (1799) 4 Ves 596 at 607; 31 ER 306 at 312 per Arden MR; Langford v Gascoyne (1805) 11 Ves 333 at 335; 32 ER 1116 at 1117 per Grant MR. Re Brier (1884) 26 Ch D 238 at 243 per Earl of Selborne LC. See P.16. ACT s 59(2); NSW s 59(2); NT s 26; Qld s 71 (where only the term ‘default’ is used); SA s 35(1) (‘wrongful or negligent act or omission’); Tas s 27(1); Vic s 36(1); WA s 70. In South Australia the legislation adds that personal representatives will also be liable if loss is occasioned as a result of circumstances that they could reasonably be expected to have foreseen and avoided: SA s 35(1A). See further Jacobs, pp 543–4. Re City Equitable Fire Insurance Co Ltd [1925] 1 Ch 407 at 434 per Romer J. Re Vickery [1931] 1 Ch 572 at 585 per Maugham J. See, for example, Larnach v Alleyne (1862) 1 W & W (E) 342 (purchase by next friend of trust estate involving no moral turpitude held not to constitute wilful default); St George v Burnett (1871) 5 SALR 77 (sale of trust property in breach of trust not wilful default where trustees sought reconveyance of property on discovering mistake); Hartigan v O’Shanassy (1872) 3 VR (E) 41 (failure to take inventory or superintend the management of a farm that one trustee permitted his co-trustee to occupy held not to amount to wilful default). Acland v Gaisford (1816) 2 Mad 28; 56 ER 245; Re Chapman [1896] 2 Ch 763 at 776 per Lindley LJ; Bartlett v Barclays Bank Trust Co Ltd (No 2) [1980] Ch 515 at 546 per Brightman LJ (who considered that wilful default is not limited to instances of ‘conscious wrongdoing’); Woodland-Ferrari v UCL Group Retirement Benefits Scheme [2003] Ch 115; [2002] EWHC 1354 (Ch) at [68] per Ferris J (who refused to equate ‘wilful default’ in this context with ‘fraudulent breach of trust’). Re Lucking’s Will Trusts [1967] 3 All ER 726 at 732–3 per Cross J; Wilkinson v Feldworth Financial Services Pty Ltd (1998) 29 ACSR 642 at 702 per Rolfe J; J D & K J Zohs Properties Pty Ltd v Ferme [2015] SASC 55; BC201502352 at [10] per Stanley J. See further J Stannard, ‘Wilful Default’ [1979] Conv 345 (who considered that a review of the authorities showed that ‘wilful default’ was always interpreted by courts of equity to include some degree of neglect, concluding that the cases identified wilful default with ‘the failure to act as a prudent man of business with regard to the activities of agents’: at 350). As to the requisite standard of care, see 12.2, 12.3. (1932) 32 SR (NSW) 596 at 603–4 per Long Innes J. Styles v Guy (1849) 1 Mac & G 422 at 433; 41 ER 1328 at 1332 per Lord Cottenham LC. Styles v Guy (1849) 1 Mac & G 422 at 435; 41 ER 1328 at 1332 per Lord Cottenham LC. See also Booth v Booth (1838) 1 Beav 125 at 130; 48 ER 886 at 888 per Lord Langdale MR (‘a trustee who stands by and sees a breach of trust committed by his co-trustees, becomes responsible for that breach of trust’). Cf Williams v Nixon (1840) 2 Beav 472; 48 ER 1264 (where Lord Langdale MR accepted (at 475; 1265) that ‘if an executor knows that the monies received by his co-executor are not applied according to the trusts of the will, and stands by and acquiesces in it without doing anything on his part to procure the due execution of the trusts, he will, in respect of that negligence, be himself charged with the loss’, but declined to accede (at 477; 1266) to the broad proposition that ‘an executor who does not personally act, and who having no reason to suspect any

298. 299. 300. 301.

302. 303. 304. 305. 306. 307. 308. 309.

310. 311.

312. 313.

314.

315.

misapplication by his co-executor, permits him to act alone, is liable for every misapplication committed by his co-executor’). See 10.14, 10.40. There may also be other reasons to support this approach: see G E Dal Pont, ‘Wilful Default Revisited — Liability for a Co-Trustee’s Defaults’ [2001] Conv 376 at 381–5. See Dal Pont, pp 745–6. Dowse v Gorton [1891] AC 190 at 204–5 per Lord Macnaghten. Life Association of Scotland v Siddal (1861) 3 De GF & J 58 at 74; 45 ER 800 at 806 per Turner LJ; Re Pauling’s Settlement Trusts [1961] 3 All ER 713 at 729–30 per Wilberforce J; Holder v Holder [1968] Ch 353 at 394 per Harman LJ; Re Freeston’s Charity [1979] 1 All ER 51 at 62–3 per Goff LJ; Spellson v George (1992) 26 NSWLR 666 at 670; BC9203965 per Handley JA. See Dal Pont, p 746; Jacobs, pp 557–8. See, for example, Barnsley v Noble [2016] WTLR 1501; [2016] EWCA Civ 799. See Dal Pont, pp 741–5; G E Dal Pont, ‘The Exclusion of Liability for Trustee Fraud’ (1998) 6 APLJ 41. ACT s 85; NSW s 85; NT s 49A; Qld s 76; SA s 56; Tas s 50; Vic s 67; WA s 75. See P.16. See, for example, Re Kay [1897] 2 Ch 518. See Dal Pont, pp 750–3; Jacobs, pp 545–9. Compare Reid v Hubbard [2003] VSC 387; BC200305989 at [34] per Nettle J (where an executor who disbursed virtually all of the funds for which he was responsible, by way of direct and indirect advances, and investments to and for his own benefit, in large part interest-free without any security, and with minimal probability of repayment, committed ‘so gross a breach’ that the epithets ‘honest’ and ‘reasonable’ were anathema) with Sproule v Sproule (2009) 2 ASTLR 80; [2009] NSWSC 152; BC200901604 (where relief was granted to an executor). As to devastavit, see 12.44. Limitation Act 1985 (ACT) s 11(1) (6 years); Limitation Act 1969 (NSW) s 14(1)(a), (1)(b) (6 years); Limitation Act 1981 (NT) s 12(1)(a), (1)(b) (3 years); Limitation of Actions Act 1974 (Qld) s 10(1)(a) (6 years); Limitation of Actions Act 1936 (SA) s 35(a) (6 years); Limitation Act 1974 (Tas) s 4(1)(a) (6 years); Limitation of Actions Act 1958 (Vic) s 5(1)(a) (6 years); Limitation Act 2005 (WA) s 13(1) (6 years). As to the limitation periods applicable to trustees, see G E Dal Pont, Law of Limitation, LexisNexis Butterworths, Australia, 2016, Ch 10. Limitation Act 1985 (ACT) Dictionary (definition of ‘trust’); Limitation Act 1969 (NSW) s 11(1) (definition of ‘trust’); Limitation Act 1981 (NT) s 4(1) (definition of ‘trust’); Limitation of Actions Act 1974 (Qld) s 5(1) (by reference to s 5(1) of the Trusts Act 1973 (Qld)); Limitation of Actions Act 1936 (SA) s 3(1) (definition of ‘person through whom another person claims’); Limitation Act 1974 (Tas) s 2(1) (by reference to s 4 of the Trustee Act 1898 (Tas)); Limitation of Actions Act 1958 (Vic) (by reference to s 3(1) of the Trustee Act 1958 (Vic)). It has been observed, to this end, that the intention of the statute ‘was to give a trustee the benefit of the lapse of time when, although he might have done something legally or technically wrong, he had done nothing morally wrong or dishonest’: Re Blow [1914] 1 Ch 233 at 247 per Swinfen Eady LJ. Limitation Act 1985 (ACT) ss 11(1), 27(1); Limitation Act 1969 (NSW) s 48(a); Limitation Act 1981 (NT) s 33(a); Limitation of Actions Act 1974 (Qld) s 27(2); Limitation of Actions Act 1936 (SA) s 32(1)(a) (see also Trustee Act 1893 (SA) ss 45, 46: application of statutes of limitation to express trusts and trustees); Limitation Act 1974 (Tas) s 24(2); Limitation of Actions Act 1958 (Vic) s 21(2).

316. Limitation Act 1985 (ACT) s 27(1)(e); Limitation Act 1969 (NSW) s 47(1)(e); Limitation Act 1981 (NT) s 32(1)(e). In these jurisdictions the 12-year limitation period also applies to actions for the recovery of trust property or money on account of its wrongful distribution: Limitation Act 1985 (ACT) s 27(1)(c), (1)(d); Limitation Act 1969 (NSW) s 47(1)(c), (1)(d); Limitation Act 1981 (NT) s 32(1)(c), (1)(d). 317. Limitation of Actions Act 1974 (Qld) s 27(1); Limitation of Actions Act 1936 (SA) s 32(1); Limitation Act 1974 (Tas) s 24(1); Limitation of Actions Act 1958 (Vic) s 21(1). 318. Limitation Act 2005 (WA) ss 13(1), 27(1) (which, however, envisages a 3-year limitation period since time started running, on equitable principles, for the commencement of an equitable action, as defined in s 27(2)). 319. The statutory wording does not confine such an action to claims by beneficiaries against personal representatives, and can apply vis-à-vis claims against persons who wrongfully receive a distribution from the estate: Re Diplock [1948] Ch 453 at 507–16 per the court (aff’d Ministry of Health v Simpson [1951] AC 251). 320. Limitation of Actions Act 1974 (Qld) s 28; Limitation Act 1974 (Tas) s 25; Limitation of Actions Act 1958 (Vic) s 22. 321. Re Loftus (deceased) [2006] 4 All ER 1110; [2006] EWCA Civ 1124 at [28]–[30] per Chadwick LJ, with whom Thomas and Lloyd LJJ concurred. 322. Limitation of Actions Act 1936 (SA) s 33(1).

[page 444]

CHAPTER 13

Powers and Entitlements of Personal Representative Powers of Personal Representatives Nature, source and exercise of powers Powers are prima facie ex officio Curial reticence to interfere with exercise of discretion Power of sale At general law — rests on terms of will or order of court Powers of sale (and mortgage and lease) conferred by statute Power of sale conferred by trustee legislation Statutory power to effect partition of real estate Standard of care in exercising power of sale Court order for the sale of minor’s property Power to postpone sale Power to appropriate At general law Under statute Restriction on power to appropriate imposed by the purchase rule Power to carry on business Position at common law Authority to carry on business pursuant to statute Power to compromise At common law Under statute

13.1 13.1 13.2 13.3 13.4 13.4 13.5 13.6 13.7 13.8 13.9 13.10 13.15 13.15 13.18 13.21 13.22 13.22 13.26 13.27 13.27 13.29

Entitlements of Personal Representatives Entitlement to seek curial advice or directions

13.32 13.34

Sources of entitlement Exercise of court’s jurisdiction Separate provision empowering court to make special order Entitlement to indemnity Indemnity against estate for properly incurred debts and liabilities Impounding the interest of a beneficiary by way of indemnity Entitlement to be remunerated Sources of entitlement Charging clauses Agreement with beneficiaries

13.34 13.36 13.39 13.40 13.40 13.41 13.43 13.43 13.46 13.48 [page 445]

Parameters of court’s jurisdiction to award remuneration Relevant factors Power to award remuneration prospectively Power to increase remuneration set by will Power to reduce remuneration set by will Reduction or denial of remuneration due to breach Denial of remuneration where neglect to pass accounts Legacy in lieu of remuneration? Award of remuneration to one of several personal representatives Claim to remuneration where lawyers engaged to perform professional services Claim to remuneration by lawyer-executors Entitlement of Public Trustee and trustee company to be paid Fees chargeable by Public Trustee (or equivalent) as personal representative Fees chargeable by trustee company as personal representative

Powers of Personal Representatives

13.49 13.50 13.54 13.55 13.61 13.62 13.65 13.66 13.70 13.71 13.72 13.74 13.74 13.76

Nature, source and exercise of powers 13.1 Whether under the terms of the will, via statute or pursuant to court order (or even conferred by agreement of the beneficiaries), personal representatives must be vested with the power(s) necessary to carry out their core functions, namely to get in the assets of the deceased, pay expenses and liabilities, and then to distribute the residue in accordance with the will or the intestacy rules. The terms in which a grant of administration is phrased can stipulate the powers exercisable by the administrator(s). Various statutory provisions vest in the court, upon application, jurisdiction to confer specific powers on personal representatives.1 An even broader jurisdiction in this regard is found in the trustee legislation,2 which empowers the court, if any transaction is in its opinion ‘expedient’, to grant personal representatives the power to effect it.3 This chapter catalogues various powers vested in personal representatives, albeit in an illustrative rather than exhaustive manner.

Powers are prima facie ex officio 13.2 The case law recognises a rebuttable presumption that every power given to personal representatives (and to trustees) that enables them to deal with or affect the estate property is ‘primâ facie given them ex officio as an incident of their office’, and thus passes with the office to the holder(s) thereof for the time being.4 The construction of the relevant document from which the power is derived determines whether the presumption is rebutted, but the mere fact that the power requires the exercise of a wide personal discretion is insufficient by itself to oust the presumption. Rather, it has been said, ‘the testator’s reliance on the individuals to the exclusion of the holders of the office for the time being must be expressed in clear and apt [page 446] language’.5 The case law reveals that references to ‘my executors herein named’6 or ‘my trustees in whom I place complete confidence’7 are not

sufficiently clear to achieve this outcome. The operation of the presumption dictates that the power(s) in question are exercisable, in the event that a personal representative dies or renounces, by the remaining personal representative(s).8 What follows is that a personal representative who renounces that office no longer enjoys the powers attached to it,9 unless the power is, by its terms, clearly expressed to be personal as opposed to linked to the office.

Curial reticence to interfere with exercise of discretion 13.3 Where a will vests in an executor a power or discretion, courts will not interfere with its exercise unless there is evidence that it is being exercised in bad faith (that is, dishonestly), without real and genuine consideration, or for purposes inconsistent with the vesting of the power or discretion in the first place. The same principles apply to personal representatives in this context as apply to trustees.10 The threshold for judicial intervention, to this end, is relatively high; courts assume that, by vesting powers and discretions in their executors, testators hardly intend that their exercise be taken from the executors’ hands and instead placed in the court.

Power of sale At general law — rests on terms of will or order of court 13.4 Aside from any statutory intervention, the existence or scope of any power of sale, vis-à-vis the assets of the estate, vested in an executor depends on the terms of the will or, for an administrator, the powers conferred by the court in granting administration. That the testamentary language does not use the terms ‘sell’, ‘sale’ or the like does not preclude an intention that the estate, or certain assets, be sold and the proceeds distributed. Indeed, the courts are not averse to making such an inference, outside of legacies clearly intended in specie, as it often aligns with the testator’s objective. So it has been said that a direction to distribute implies a power of sale, in order to provide the money for the purpose of distribution.11 And in Pagels v MacDonald12 the High Court held that a direction that ‘all my real and personal estate … be equally divided between my youngest son … and my six youngest daughters’ implied that the

executors should sell the land forming the bulk of the estate and divide its proceeds. As explained by Dixon and Evatt JJ:13 In our opinion the powers belonging to the executors included a power of selling the real and personal estate for the purpose of distribution among the seven children after the widow’s death. The direction to divide the real and personal estate among the seven children does not mean, we think, that an equal division in specie is to be made of the land and chattels of which the testator’s estate was composed, nor does it mean that the seven children are … to stand possessed of the chattels in co-ownership and by transfer or conveyance obtain estates in fee simple as tenants in common. It is a residuary gift of mixed realty and personalty among a number of persons and the natural construction of the word ‘divide’, together with the reference to equality of shares, is as a direction to distribute proceeds.

[page 447]

Powers of sale (and mortgage and lease) conferred by statute 13.5 Statute in the territories and New South Wales empowers a personal representative, without the consent of any person or the order of a court, to:14 • sell or mortgage the real estate of the deceased person for purposes of administration; • sell the real estate of the deceased person in relation to which he or she died intestate, for purposes of distribution or division among the persons entitled; • lease the real estate of the deceased person in possession for any term not exceeding 3 years; or • in the territories, raise, on the security of the whole or any part of the intestate estate, any sum required for the purpose of paying to a partner of the intestate the (part of the) share of the partner in the intestate estate. Some or one only of several personal representatives may exercise those powers with the leave of the court, and not otherwise, and the court may make orders it considers appropriate for the purpose of carrying out any such sale, mortgage, lease or raising of any sum.15 In these jurisdictions, as well as Western Australia, the probate legislation adds that a personal representative may, for purposes of administration, sell that real estate, or mortgage it with or without a power of sale, and convey it to

a purchaser or mortgagee in as full and effectual a way in law as the deceased could have done in his or her lifetime.16 In Queensland a broad power of sale vests in personal representatives via the trustee legislation.17 The South Australian probate legislation grants a personal representative the same power of sale of real estate for payment of debts as an executor historically had with regard to the personal estate.18 And it obviates a person purchasing real estate of a deceased person from a personal representative being bound or concerned to inquire as to the existence of debts, the necessity for sale, or the application of the purchase money.19 The Tasmanian and Victorian legislation similarly grants to personal representatives the same powers of sale and mortgage over realty as had historically accrued over personalty, as well as all the powers, discretions and duties conferred or imposed by law on trustees holding land upon an effectual trust for sale.20 In these jurisdictions the legislation adds that, in the case of an intestacy, an administrator holds the property forming the estate on trust for sale, albeit with power to postpone sale for such a period as he or she may think proper, except that personal chattels21 are not to be sold except for special reason and unless required for purposes of administration owing to want of other assets.22 If the intestacy is partial, the foregoing applies subject to the terms of the will.23

Power of sale conferred by trustee legislation 13.6 The trustee legislation in Queensland and Western Australia gives every personal representative the power to sell the property of the estate, subject to contrary intention in the trust [page 448] instrument.24 Independent of statute the common law envisages that personal representatives may sell an asset in such manner and on such terms as are usual for the sale of an asset of that kind.25 In any case, the trustee legislation, in provisions likewise applicable to personal representatives, empowers trustees with an existing power of sale to sell any part of the trust property together or

in lots by auction or private contract,26 sell on terms of deferred payment (except the Northern Territory and Tasmania)27 and sell on ‘unnecessarily depreciatory’ terms.28

Statutory power to effect partition of real estate 13.7 In the territories, New South Wales, South Australia and Western Australia the probate statutes empower the court, if satisfied that a partition29 of (any part of) real estate will be advantageous to interested parties, to appoint one or more arbitrators to effect the partition.30 Other than in Western Australia, however, these provisions are limited in their application to intestate estates.31 Elsewhere other statutes vest power in personal representatives to concur in the partition of estate land or property.32 In any event, the property law statutes other than in Tasmania (where a dedicated Act operates) empower a co-owner of land to apply for partition or sale of the land.33 The foregoing raises the question why separate regimes should remain for dealing with partition, prompting calls for a single, uniform summary procedure.34 In any event, to concur in a partition — where it is ‘a natural and reasonable method whereby an executor can put himself in a position easily to administer and realize his testator’s estate’ — has been recognised as within the power of an executor at common law.35

Standard of care in exercising power of sale 13.8 Whatever its source, a power to sell must be given effect according to its terms, and exercised in accord with the requisite standard of care. As to the latter, the following remarks are pertinent:36 [T]he standard of care to be exercised by an administrator in effecting a sale for purposes of administration may be regarded as the equivalent of that expected of a trustee exercising a power of sale, although considerations relevant to the competing interests of classes of beneficiaries

[page 449] will not intrude in the case of a legal personal representative. The standard of care includes the exercise of diligence in inviting competition and in pursuing a course of conduct of the kind that an ordinary prudent person would apply in managing his or her own affairs. Formulations based

on a supposed duty to ‘obtain the best price’ or ‘not to sell at an undervalue’ must … be approached with care. Such absolutes tend to be illusory. The emphasis is on responsible, methodical and prudent behaviour undertaken according to an informed appreciation of the subject matter and the market environment in which it is to be sold.

Court order for the sale of minor’s property 13.9 In South Australia the probate legislation empowers the court, on the application of a personal representative or trustee in whom property belonging to a minor is vested, or on the application of the guardian of the estate or the next friend of a minor beneficially entitled to property, to order that some or part of the property be sold if the court considers this to be for the benefit of the minor.37 The trustee legislation in the Australian Capital Territory and New South Wales makes equivalent provision in simple terms that empower the court to authorise the trustee of any property held in trust for a minor to sell some or part of the property.38 As the trustee legislation in Queensland and Western Australia confers on all trustees, subject to the terms of the trust in Western Australia,39 the power to sell trust property,40 there is no need for court authorisation in those jurisdictions even if the property is held on trust for a minor. A power of sale in these circumstances also exists under the Australian Capital Territory, New South Wales, South Australian and Victorian trustee legislation if the trust instrument or statute empowers a trustee to apply capital money for any purpose;41 the power of sale accrues in order to raise the money required.

Power to postpone sale 13.10 As a personal representative is charged with distributing the deceased’s property among those persons who are to take under the deceased’s will or pursuant to the intestacy rules, where the estate is constituted of other than money, to be divided among several beneficiaries, its administration is likely to require the sale of one or more assets. In the case of testate succession, the terms of the will dictate whether a personal representative is obliged to sell assets (sometimes termed a ‘trust for sale’) or merely has a power to sell the assets. The distinction here is between the imperative and the facultative, and it is one that rests on the construction of the words used.

13.11 If the will is expressed in imperative terms, the personal representative must sell within a reasonable time as soon as a fair price is obtained in the circumstances.42 In this event, there is arguably no power to postpone sale if, say, the market conditions at the time are not conducive to maximising the sale proceeds.43 The same difficulty can arise in the event of [page 450] intestacy where the intestacy rules require the realisation of the estate.44 Statute has addressed this potentially undesirable outcome. In New South Wales, Queensland, Tasmania (in relation to intestate estates only), Victoria and Western Australia it has done so by empowering personal representatives to postpone the sale of estate assets without the need for court permission.45 The territories, South Australia and Tasmania (in relation to testate estates) instead require an application to the court for this purpose. The court may, if it considers it ‘beneficial so to do’ (in Tasmania, ‘expedient and prudent’), authorise a personal representative to postpone, for a period it considers ‘expedient’ (‘appropriate’ in the territories), the sale of (a part of) a deceased estate.46 Such an order may be made, whether ex parte or on the notice the court considers proper, and varied from time to time, as it considers appropriate.47 In South Australia and Tasmania a personal representative acting pursuant to authority so conferred is declared not to be answerable for consequent loss, except in case of breach of trust, negligence or wilful default.48 13.12 That what triggers the court’s power is that it is ‘beneficial so to do’ has been interpreted as evincing ‘a beneficial and remedial purpose’, justifying a liberal construction, namely ‘the widest interpretation which its language will permit’.49 The term ‘expedient’ in South Australia and Tasmania has similarly attracted a broad construction,50 having been described, albeit in a different statutory context, as ‘a criterion of the widest and most flexible kind’.51 It is nonetheless difficult to discern any substantive difference between the term ‘expedient’ and the term ‘appropriate’ used in the territories in this regard. In each case, the court’s discretion is informed by whether an order to postpone

sale ‘will be of advantage to the due and proper administration of the estate’.52 Such an order was made in Re Estate of Bannon (deceased)53 because it ‘would protect the interests of the beneficiaries by preserving an appreciable and stable asset and avoid the risks of a fire sale’. It also ensued in Re Estate of Marden (deceased),54 where the deceased’s estate was divided between his spouse and 7year-old child, Gray J acceding to the spouse’s application for permission to postpone the sale of the family home until the child attained 18 years of age. [page 451] His Honour considered the benefit afforded by the making of the order being ‘the minimisation of disruption and inconvenience to the lives of the surviving spouse and dependent issue of the deceased, the promotion of the continuity of the lifestyle of these persons, and the acknowledgment of the importance of the matrimonial home in the life of the surviving spouse’.55 13.13 Express conferral of a power to postpone sale avoids the need, in most instances, to apply to the court in the territories, South Australia and Tasmania. As with powers vested in executors generally, the court respects the terms of the will, and will not ordinarily interfere with the exercise of this discretion,56 and there is no requirement, accordingly, that a sale be made within the ‘executor’s year’.57 Where a power to postpone is attached to a duty to sell, though, the latter duty remains, being one to sell at a fair price within a reasonable time in the circumstances. A power to postpone sourced in a will must, like its statutory counterpart in the remaining jurisdictions, be exercised in good faith by reference to relevant considerations, including the rights of beneficiaries inter se, economic reasons and difficulty in sale.58 13.14 In the territories and New South Wales the probate legislation adds that a personal representative cannot be required against his or her consent to continue to manage property, as a trustee, of which the court has ordered the sale to be postponed. Instead, the personal representative may relinquish his or her trust to the person the court appoints.59 The foregoing recognises that a personal representative, whose function has been extended by a court order he or she did not seek, ought not be compelled to perform that extended

function.

Power to appropriate At general law 13.15 There may arise circumstances where a legatee who is entitled to a monetary sum from a deceased estate has a preference for an item of property in that estate, whether greater or lesser in value to the sum to which he or she is entitled. However, to satisfy the legatee’s monetary entitlement, the property would need to be sold. Were there no means whereby the personal representative and legatee could agree to apply the property itself in full or partial satisfaction of the legatee’s entitlement, it would dictate that the only way the legatee could secure the property would be subsequent to its sale by the personal representative, which would in turn give the legatee the necessary funds to purchase the property. The common law sought to circumvent this convoluted process, redolent with transaction costs, by vesting in personal representatives a power to apply (the formal legal term adopted is ‘appropriate’) the item of property in specie in full or partial satisfaction of the legatee’s share in the estate.60 Being sourced [page 452] at common law, this power exists independently of the will but cannot be exercised where it would be inconsistent with the clear provisions of the will61 and, if conferred by the will, must be exercised in accordance with the terms of its conferral.62 The exercise of the power is equivalent to a sale of the property in question to the legatee at a price equating to its market value at the time of the appropriation (not at the deceased’s death),63 on the understanding that the purchase price is set off, pro tanto, against the value of the legatee’s share in the estate.64 Reflecting the historical divide between the personal estate and the real estate of the deceased,65 the common law originally targeted the personal estate as the domain of the power to appropriate. It subsequently

encompassed real estate within the power where the property was devised upon trust for sale and conversion.66 Whether it extends to all real estate without the consent of the remaining legatees remains undecided,67 but, given the modern dissolution of the realty–personalty distinction, there are grounds to conclude that there should be ‘no difference in principle’.68 13.16 Crucial to an appropriation at common law (as opposed to under the actual terms of the will) is the legatee’s consent;69 after all, no person should be compelled to accept property in lieu of a monetary sum to which he or she is entitled. Nor can the power to appropriate be exercised if it is contrary to other legatees’ interests.70 13.17 Once the appropriation is validly effected, the executor ceases to hold the property appropriated as executor; if the property is not immediately delivered or transferred to the beneficiary, the executor holds it as trustee for the beneficiary, not as part of the assets of the estate.71 A valid appropriation cannot be undone — say, to take into account changes in value of the assets appropriated, or those remaining unappropriated, subsequent to the appropriation — with respect to the relevant beneficiary.72 Otherwise the beneficiary could never be assured of certainty when it came to the property appropriated. [page 453]

Under statute 13.18 In all jurisdictions except South Australia statute formalises and gives detail to the power to appropriate. In South Australia the common law, discussed above, continues to apply.73 Importantly, though, the terms of the relevant statutory provisions elsewhere do not diverge from core common law precepts.74 They adopt two basic schemas, one in the territories, New South Wales, Tasmania and Victoria, the other in Queensland and Western Australia. In the Northern Territory, Tasmania and Victoria it is located in the probate statutes. Elsewhere it appears in the trustee legislation,75 which in this context encompasses within the term ‘trustee’ a personal representative.76

13.19 The territories, New South Wales, Tasmania and Victoria Statute in these jurisdictions, in its operative provision, empowers a personal representative to appropriate any part of a deceased estate in or towards satisfaction of any legacy bequeathed by the deceased, or of any other interest or share in the estate, as to the personal representative seems just and reasonable according to the respective rights of the persons interested in the estate.77 But no such appropriation can be made so as to affect prejudicially any specific device or bequest.78 Nor can an appropriation under statute be made except with the following consents:79 • when made for the benefit of a person absolutely and beneficially entitled in possession — the consent of that person; • when made in respect of a settled legacy, share or interest80 — the consent of either any trustee thereof (not being also the personal representative) or the person for the time being entitled to the income. Provision is made for consent to be given on behalf of a minor or mentally defective person.81 No consent is required, though, on behalf of a person who may come into existence after the time of appropriation or who cannot be found or ascertained at that time (except of a trustee mentioned in the second dot point above).82 A valid appropriation binds all persons interested in the deceased’s property whose consent is not required,83 but a duty remains on a personal representative in making the appropriation to have regard to the rights of any person who may thereafter come into existence or who cannot be found or ascertained at the time of appropriation and of any other person whose consent is not required.84 [page 454] For the purposes of appropriation the personal representative may ascertain and fix the value (employing a valuer if necessary) of the respective parts of the estate and the liabilities of the deceased as he or she thinks fit, and make any conveyance required for giving effect to the appropriation.85 The statutory power to appropriate does not prejudice any other power of appropriation conferred by law or the will (if any) of the deceased person.86 It

applies whether or not the deceased died intestate, extends to property over which a testator exercises a general power of appointment, and authorises the setting apart of a fund to answer an annuity by means of the income of that fund or otherwise.87 If, following appropriation of any real estate in the purported exercise of the statutory power, the recipient disposes of (any interest in) it, then in favour of a purchaser for money or money’s worth the appropriation is deemed to have been made in accordance with the statutory requirements and after all requisite consents (if any) had been given.88 13.20 Queensland and Western Australia The Queensland and Western Australian trustee legislation adopts a less expansive treatment of the power to appropriate. But like its counterparts elsewhere, its core provision empowers a personal representative to ‘appropriate any part of the property in or towards satisfaction of any legacy payable thereout or in or towards satisfaction of any share of the trust property … to which any person is entitled’.89 It also envisages that the personal representative will value the relevant property for this purpose, and likewise precludes an appropriation that adversely affects any specific gift. And it is subject to the terms of the trust instrument in Western Australia90 but not in Queensland.91 Unlike the statutes in other jurisdictions, the trustee legislation in Queensland and Western Australia premises the effectiveness of any such appropriation upon notice being given to all persons not under a disability who are interested in the appropriation, and others on behalf of a minor or incapable person, who may apply to the court within 1 month of receiving the notice (or such extended period as the court may allow) to vary the appropriation.92 The appropriation is conclusive save as varied by the court. The personal representative may execute all instruments necessary to carry into effect the appropriation.93

Restriction on power to appropriate imposed by the purchase rule 13.21 Whether sourced at common law or under statute, the power to appropriate must be exercised in line with fiduciary duties imposed on personal representatives.94 It has been judicially observed, to this end, that ‘[t]here is no case in which an appropriation by a personal representative in his or her own favour of assets of the estate in satisfaction of a pecuniary legacy has

been upheld’.95 The exercise of such a power in this way, it is reasoned, infringes the purchase rule, which precludes personal representatives purchasing the property of the estate.96 But this can be legitimated under the terms of the will, or by agreement with the remaining beneficiaries.97 [page 455]

Power to carry on business Position at common law 13.22 At common law the general rule, stated by Sir John Romilly MR in 1855, is that ‘an executor cannot carry on the trade of the testator, except for the mere purpose of winding it up’.98 Yet the latter purpose may involve an executor (or administrator) completing contracts entered into by the deceased in the course of business,99 or in other ways ensuring that the business operates in a fashion affording its sale as a going concern.100 Otherwise the value of the business, or even its continued existence, could be prejudiced. However, beyond this it has been judicially observed that ‘to authorise executors to carry on a trade, or to permit it to be carried on with the property of a testator held by them in trust, there ought to be the most distinct and positive authority and direction given by the will itself for that purpose’.101 The general rule at common law therefore yields to the terms of the testator’s will. An express power to carry on the testator’s business is construed according to its terms, in line with any implications that stem from the language adopted. Those words, when construed in their context, determine whether the testator intended an ongoing continuation of the business or instead a temporally confined exercise of that power. A power to carry on the testator’s business may, even though not explicit, come within a power to postpone the sale of the testator’s estate. In Re Chancellor102 Cotton LJ remarked that an express power to postpone the sale of the testator’s real and personal estate applied to the testator’s business, and thus gave the trustees a power to postpone the sale of the business, ‘not for the purpose of carrying it on to making profits, but to carry it on for such a

reasonable period as would enable them to sell it profitably as a going concern’. Such a power to postpone confers no authority to carry on the business for an indefinite time.103 What amounts to a reasonable period depends on the circumstances, including the nature of the business and the economic conditions of the day. 13.23 The scope of a power to postpone rests heavily on its wording. In Re Crowther,104 for instance, Chitty J refused to construe a power to postpone sale ‘for such period as to [the trustees] shall seem expedient’ as giving the trustees ‘only some undefined and limited power of postponement’. While it is no doubt correct that, as Chitty J remarked, ‘a power to postpone [page 456] the sale of a business involves a power of continuing the business in the meantime’,105 Crowther represents a high watermark case given that his Lordship upheld the trustees’ continuation of the testator’s business for some 22 years. This outcome would have proven more compelling had the testator’s instruction been phrased as a mere power to sell, as in Southwell v Martin,106 in which there was a direction to sell ‘if the trustees consider it best for [my] family’. 13.24 Where personal representatives have authority to carry on the testator’s business pending the realisation and distribution of the estate, they may adopt the same steps to carrying on that business as did the testator. If the latter has given no direction as to what assets should be employed in so doing, the personal representatives can use only those assets that were embarked in the business as at the testator’s death. To use other assets of the testator may interfere with the entitlements of one or more beneficiaries. At the same time, though, they are entitled to use the business assets as did the testator, and can mortgage them if this is a proper means of continuing the business. Proof that the testator had mortgaged those assets in conducting the business is not essential, but provides useful evidence to this end.107 13.25 A personal representative who carries on the testator’s business without authority, express or implied, acts at his or her own risk, and is

personally liable for debts and liabilities so incurred, without the prospect, in the usual case, of seeking an indemnity therefor from the estate, the beneficiaries or creditors.108

Authority to carry on business pursuant to statute 13.26 In the territories, South Australia and Tasmania the probate legislation empowers the court, if it considers it beneficial (in Tasmania, ‘expedient and prudent’) to do so, to authorise a personal representative to carry on, for the period(s) it considers ‘expedient’ (‘appropriate’ in the territories), the business, trade or occupation of the deceased, and to use (part of) the estate for that purpose.109 The words ‘beneficial’, ‘appropriate’ and ‘expedient’ attract the same broad interpretation as they do in the context of the statutory power to postpone sale in these jurisdictions.110 Again, such an order may be made, whether ex parte or on the notice the court considers proper, and may be varied from time to time, as the court considers appropriate.111 The statutes in South Australia and Tasmania add that a personal representative acting pursuant to authority so conferred is not answerable for consequent loss, except in case of breach of trust, negligence or wilful default.112 13.27 The Queensland and Western Australian trustee legislation, which applies to personal representatives in this context, adopts the opposite starting point. Subject to the terms of the will, where the estate of the deceased included a business, it empowers the personal representative(s) to continue to carry on that business for 2 years, for such period as may be necessary for its winding up, or for such further period(s) as the court may approve.113 The legislation lists a variety of broad powers that personal representatives may exercise for [page 457] this purpose.114 This serves to delay the necessity to apply for court authority to conduct the deceased’s business for at least 2 years following the deceased’s death.115

Power to compromise At common law 13.28 Personal representatives of a deceased estate must, like trustees of a trust, get in the property of the estate,116 so that it can be distributed amongst those entitled, whether under the terms of the deceased’s will or the intestacy rules. Because the duty is owed to those persons, the general law requires personal representatives to take active steps to get in the estate, and in so doing not be driven by the concerns or interests of third parties. So if an amount is due to the estate, it is the personal representative’s duty to demand payment and, should the demand not be met, to pursue measures to enforce payment, via legal action if necessary. Only a well-founded belief that such a course of action ‘would result in failure and be fruitless’,117 the onus of proving grounds for this lying in the personal representative setting it up in his or her own exoneration, can excuse a neglect to pursue it. It has been judicially noted, to this end, that ‘[n]o consideration of delicacy’ or ‘regard for the feeling of relatives or friends’, exonerates a personal representative from a failure to pursue the action.118

Under statute 13.29 To the extent that the above suggests a most confined power to compromise at common law, it is misleading. It has been judicially observed that ‘[v]ery large powers of compromising are given to an executor by the common law’ and that ‘the statutory authority really adds nothing to the common law powers’.119 It follows that the statutory powers noted below arguably replicate those already available to the court. Under the trustee legislation (except in the Australian Capital Territory, where equivalent provision is made in the probate legislation), a personal representative is empowered to:120 • accept any composition or any security for any debts due to the deceased; • allow any time for the payment of any such debts; and • compromise, compound, submit to arbitration or otherwise settle all debts, accounts, claims and things relating to the estate of the deceased person. In New South Wales, Queensland, Victoria and Western Australia a

personal representative may also accept any property before the time when it is made transferable or payable, sever and apportion any blended trust funds or property, and pay or allow any debt or claim on any evidence that he or she thinks sufficient.121 The latter also falls within a personal representative’s [page 458] arsenal of powers in the Australian Capital Territory, South Australia and Tasmania.122 Victoria adds a power to waive or vary any right arising from a failure to comply at or within the proper time with any contract.123 For any of the above purposes, a personal representative may, the statutes provide, enter into, give, execute, and do such agreements, instruments of composition or arrangement, releases, and other things as to him or her seems expedient, without being responsible for any loss occasioned by any act or thing so done in good faith.124 13.30 The statutory power to compromise, listed in the third dot point above, has seen the greatest exposure in the case law. As the power is widely drawn, judges have favoured a wide construction.125 It is, however, by no means an open-ended power. First, to give rise to a case for compromise, there must be either some point of real difficulty — if rights are undisputed and easily enforced, there is no case for compromise126 — or the personal representative must, consistent with the position at general law, consider that the cost of the proceedings will exceed any benefits likely to accrue.127 Second, like other powers vested in fiduciaries, it must be exercised bona fide and for the benefit of the estate, namely for the genuine purpose of settling the dispute, not merely as an expedient means of achieving some ulterior or extraneous agenda.128 At the same time, the unanimous consent of the beneficiaries to the compromise prior to its acceptance is not essential.129 Third, the phrase ‘claims relating to … the estate’, though encompassing claims from the outside world and as between the beneficiaries, does not encompass proceedings to determine a personal representative’s title. It follows that there is no power to compromise a probate proceeding contesting the validity of the will.130 Fourth, the power is not by itself broad enough to authorise what would nonetheless require approval of the court, say, an agreement to alter the testamentary

schema pursuant to a family provision claim in the absence of consent by all beneficiaries.131 13.31 It may be prudent in some cases to obtain the sanction of the court to a proposed compromise,132 say, where it affects the interests of infants133 or there may be a conflict between duty and interest.134 [page 459]

Entitlements of Personal Representatives 13.32 The role of personal representative is chiefly about responsibility rather than entitlement. This explains the onerous duties imposed by law on personal representatives, coupled with the fact that powers vested in them are directed almost entirely at fulfilling those duties. It follows that entitlements are relatively few, and are targeted once again at fostering the due administration of the estate. The entitlement to approach the court for advice or direction exemplifies this point. And the right to an indemnity for expenses and liabilities properly incurred in the course of administration implicitly recognises the representative capacity involved, coupled with the fact that few if any would accept the role of personal representative were they ultimately liable for all debts and liabilities existing or arising in the administration. Although no common law entitlement to remuneration vests in a personal representative, the law has long acknowledged vehicles through which this can (and should) occur, again reflecting the notion that the proper administration of a deceased estate will, on multiple occasions, rest on having someone carrying out that administration in a paid capacity.135 This explains why remuneration — more commonly termed ‘commission’ — is the subject of discussion under the entitlements heading. 13.33 The common law has long privileged a personal representative by granting a right to retain for his or her own debt in preference to all other creditors of equal degree (a ‘right of retainer’) and a right among creditors of equal degree to pay one in preference to another (a ‘right to prefer creditors’). As these rights are specific to the allocation of the estate, and are in any case

impacted by statute, they are discussed elsewhere.136

Entitlement to seek curial advice or directions Sources of entitlement 13.34 The court has jurisdiction, upon application, to supply advice or directions to personal representatives. There are various sources of this jurisdiction. Seeking to overcome the historical requirement that any curial advice or direction be premised on the commencement of an administration action137 — an expensive and inefficient process138 — court rules except in Queensland make provision for the grant of advice or directions without the need for an administration action.139 Although no equivalent provision in the former Queensland rules140 appears in the current rules, the statutory jurisdiction to ‘hear and determine all matters relating to the estate and the administration of the estate of any deceased person’ and ‘to make all such declarations and to make and enforce all such orders as may be necessary or convenient in every such respect’141 is broad enough to encompass a jurisdiction to supply advice or directions to personal representatives. [page 460] In any event, the trustee legislation other than in the Northern Territory, Tasmania and Victoria vests in the court a specific power to give advice or directions to trustees, which includes personal representatives in this context.142 In South Australia it does so by referring to a dedicated provision in the probate legislation.143 In Tasmania the probate legislation empowers the court to make all such orders as may be necessary for the due administration of a deceased estate,144 which arguably includes a power to give advice and directions. And in Western Australia the power conferred on the court to make orders with respect to any question arising in respect of any will or administration145 has been held to give standing not merely to a personal representative but also to a beneficiary who sought directions as to the proper interpretation of the will.146

13.35 Whatever the source of the court’s jurisdiction to give advice and directions to personal representatives, it is one that cannot be ousted by the terms of the will.147

Exercise of court’s jurisdiction 13.36 The most common, but by no means only,148 occasion in the case law where a personal representative has sought the court’s advice or direction relates to the question whether or not he or she ought to initiate or defend proceedings on behalf of the estate. Gillard J in Re Atkinson (deceased) explained the point as follows:149 Where an executor or trustee is in doubt as to the course of action it should adopt, it is always entitled to take the opinion of the court as to what it should do. If in doubt as to whether or not it should take legal proceedings, then it is entitled to apply to the court for directions on the matter … If the executor or the trustee then followed the direction of the court, it would be protected from any claim by a beneficiary or creditor arising from its action or inaction in accordance with the court’s direction … In cases of real doubt, the proper course for a personal representative or trustee to adopt is to seek the court’s decision as to whether or not the action should be brought, otherwise the representative or trustee might find itself paying the costs of any proceedings which the court might subsequently say were not ‘properly incurred’: see Re Beddoe [1893] 1 Ch 547 at 558, 562.

In Re Beddoe,150 referred to by Gillard J, the English Court of Appeal allowed a trustee to obtain directions from the court about whether the trustee should litigate on behalf of the trust. ‘To embark in a lawsuit at the risk of the fund without this salutary precaution’, Bowen LJ warned, ‘might often be to speculate in law with money that belongs to other people’.151 A ‘Beddoe application’, as it has become known, can be utilised not only in cases where litigation is imminent or pending but where any doubt exists as to the correct course of action by personal representatives. This recourse is part of their duty to protect and preserve the estate [page 461] and, accordingly, to represent the estate in third party disputes. Historically it has been justified as a recognition of the executorial office being ordinarily a gratuitous one152 coupled with the fact that an executor is entitled to an

indemnity from the estate only for expenses properly incurred in carrying out executorial functions.153 Although often viewed as a vehicle to protect the personal representatives from personal liability — typically in the event that pursuing or defending the suit causes the incurrence of costs that the court determines were not properly incurred and thus falls outside the right to indemnity — it concurrently serves the interests of protecting the estate, as it reduces the prospect that the interests of the estate will be subordinated to the fear in personal representatives of personal liability for costs.154 The foregoing assumes, of course, that there has been a full and fair disclosure of the relevant facts by the applicant.155 13.37 Importantly, when asked to advise whether or a not a personal representative should initiate or defend a suit, the court’s role is a limited one. It is not bound to investigate the evidence in order to make a finding as to the outcome of the proposed proceedings; it must determine only whether the proceedings should be taken, that is, whether the proposed course or action is lawful and proper.156 The parameters of the advice lie solely within the province of the court, and will not ordinarily traverse areas where personal representatives are, as part of their role, expected to make prudent commercial judgments.157 (The latter speaks to a broader point, being that most decisions facing personal representatives do not warrant or justify the cost to the estate of an application for judicial advice, but should be addressed after due consideration).158 If it transpires that the court is not convinced that the proposed course of action would be in the interests of the beneficiaries of the estate, or is otherwise unable to make a finding as to whether the proposed action had sufficient prospects of success to justify the litigation, the court will advise against proceeding.159 13.38 In the trusts law context can be found dicta that the procedure should not be used to determine substantive issues involving hostile disputes between a trustee and beneficiaries,160 the logic being that in these instances all parties with an interest ought to appear and make submissions to the court. These dicta must now be read in the light of more recent observations by the High Court, which locate this issue squarely in the discretion of the court rather than functioning as any limitation on the court’s jurisdiction.161 At the same

time, it has been noted, in a probate case, that ‘those discretions do raise questions about the suitability of the procedure [page 462] if there are likely to be contested issues of fact or allegations of breach of trust or misconduct of any kind by one party interested in the administration of the trust against another’.162

Separate provision empowering court to make special order 13.39 Statute in the territories, New South Wales and South Australia empowers the court, on the application of an executor, administrator or person beneficially interested in the estate, and following notice to other parties and inquiry the court considers appropriate, to direct the course of proceedings to be taken in regard to:163 • the time and method of sale of any real estate; • the letting and management of any real estate until sale; • the application for maintenance or advancement or otherwise of shares (or income of shares) of children; and • the administration of the real estate for the greatest advantage of all persons interested generally. As the scope of the jurisdiction conferred by the foregoing provisions is limited by their terms, and statute or court rules now makes general provision for the court to give directions to personal representatives,164 any remaining scope for their independent application seems illusory.

Entitlement to indemnity Indemnity against estate for properly incurred debts and liabilities 13.40 As a personal representative, for the purposes of the administering a deceased estate, represents the estate, he or she is personally liable for the debts and liabilities of the estate.165 Like a trustee, however, due to acting in a

representative (and fiduciary) capacity, the personal representative is entitled to an indemnity from the estate for debts and liabilities properly incurred in its management.166 That personal representatives hold full title to the assets of the estate,167 whereas trustees hold only legal title, makes no difference to the scope of the right to indemnity. Accordingly, the case law setting those parameters for trustees is equally relevant to personal representatives.168 Hence the reference in both the trustee and the executorial context to the right of indemnity being premised on the expense having been properly or reasonably incurred. In the executorial context, this means that, if an executor’s accounts are challenged, executors can be disallowed an indemnity from the estate for expenses not properly or reasonably incurred.169 And executors can be refused indemnity from the estate for the costs of an action that they improperly commenced or defended.170 [page 463]

Impounding the interest of a beneficiary by way of indemnity 13.41 The trustee legislation declares that, where a personal representative commits a breach of trust, whether at the instigation or with the written consent of a beneficiary, the court may, if it thinks fit, make such order as it considers just for impounding all or any part of the interest of the beneficiary in the estate by way of indemnity to the personal representative.171 Statute followed the law in this regard, it having been judicially observed that the statute ‘was not intended and did not operate to curtail the previously existing rights and remedies of trustees or to alter the law except by giving greater power to the courts’.172 13.42 In any event, a beneficiary who instigates, consents or concurs in a personal representative’s breach cannot succeed in an action based upon that breach,173 and participation in a dishonest and fraudulent design on the part of the personal representative may render a beneficiary personally liable for any loss that results.174

Entitlement to be remunerated Sources of entitlement 13.43 Although the English Court of Chancery, having jurisdiction over deceased estates, did not lack the inherent power to award commission to executors for performing their duties, the power was, as a matter of practice, rarely exercised.175 Hence the reference by English judges to the jurisdiction being ‘exercised sparingly, and in exceptional cases’.176 The reluctance stemmed from the fiduciary position assumed by executors who, in line with the fiduciary ‘no profit rule’ applicable to the parallel office of trustee,177 could not profit from that position.178 The office, like that of a trustee, was essentially gratuitous.179 In Australia, however, the Charter of Justice 1823 that established the first Supreme Court — in New South Wales (at that time encompassing Victoria) — authorised the court ‘to allow to any executor or administrator of the effects of any deceased person … such commission or percentage out of their assets as shall be just and reasonable for their pains and trouble therein’. Australian courts viewed this as a targeted attempt to oust the English practice, describing it as ‘a clearly-worded and everyday working Statute, conferring jurisdiction upon the court’ [page 464] evincing a ‘distinct change … of public policy’, such that no practice of the court ‘can prevent that jurisdiction being exercised in favour of a person claiming the benefit of it’.180 13.44 The modern probate legislation in all jurisdictions except Western Australia contains a provision equivalent to the above. In the Australian Capital Territory and South Australia the court may allow out of the assets of a deceased person to the person’s executor, administrator or trustee the commission or percentage for his or her services that is just (in South Australia, ‘and reasonable’).181 In New South Wales, the Northern Territory, Tasmania and Victoria the court may do likewise for the personal

representative’s ‘pains and trouble’ as is just and reasonable, subject to a limit of 5 per cent other than in New South Wales.182 The Queensland Act simply states that the court may authorise the payment of such remuneration or commission to the personal representative for his or her services as personal representative as it thinks fit.183 In Western Australia the court’s jurisdiction is conferred by the trustee legislation, which in this context is phrased in terms similar to the South Australian provision noted above, albeit capping any aggregate commission or percentage allowed to 5 per cent of the gross value of the estate.184 Provisions of this kind are ‘a form of relief from the strictures of equity consequent upon characterisation of the office of executor as that of a fiduciary’.185 Their mere presence, it has been judicially opined, ‘indicates that it is appropriate in many instances for an executor to receive remuneration for carrying out their obligations’, being conducive to the good administration of estates because ‘[a]n executor is more likely to be able to devote the time and resources to the proper administration of an estate if he or she is remunerated for doing so’.186 Importantly, though, none of these conferrals of power entitle a personal representative to commission or some other form of remuneration. An order for commission rests on an exercise of the court’s jurisdiction — the parameters of which are elaborated below187 — on application by a personal representative, who carries the onus.188 The position differs in the case of a trustee company or the Public Trustee (or equivalent), which statute entitles to charge commission for services as personal representative(s).189 13.45 An entitlement to commission, except for a trustee company or the Public Trustee, can derive only from a charging clause in the will190 (or, for an administrator, provision to this effect in the court order appointing the administrator) or the terms of a valid agreement [page 465] between the executor and all the beneficiaries, being of full age and capacity.191 The former is much more common; the scope of the entitlement, and its quantum, is then determined on the construction of the clause in question, in

its context. Where a nominated executor is granted a legacy under the will, there may arise the further question whether the legacy was intended as a substitute for commission or other remuneration.192 Each of these points is addressed below.

Charging clauses 13.46 Charging clauses fall outside the proscription against profiting from a fiduciary position because a person in a fiduciary position can be authorised, commonly by the person to whom the duty is owed, to profit from that position. The basic tenet of freedom of testation supports this proposition; after all, it would be contrary to this freedom, assuming that the testator understood the nature and effect of a charging clause,193 for the law to declare it offensive to public policy or otherwise to represent an illegitimate attempt to oust the jurisdiction of the court.194 Testators frequently make explicit provision in their will entitling their executor(s) to render a charge — whether by way of legacy, commission or otherwise — for services performed as executor(s). And this is almost invariable for an executor who is a lawyer or professional trustee. The law views this as bounty of the testator.195 As with other instances of the loosening of the strictures of fiduciary duty, courts are disinclined to adopt expansive interpretation of charging clauses.196 For example, in Sacks v Gridiger197 McClelland J confined a clause authorising ‘usual professional charges’ for solicitor-executors to professional services — being ‘legal work which a lay trustee would properly engage a solicitor to perform’ — as opposed to non-professional services.198 13.47 In lieu of relying on a charging clause, an executor has the option of applying to the court for commission,199 and the court has jurisdiction to order a greater quantum of commission than allowed under that clause.200 At the same time, there is jurisdiction in the court to reduce commission otherwise payable under the terms of a charging clause.201

Agreement with beneficiaries 13.48 A valid agreement with beneficiaries of full age and capacity that the executor will be paid for his or her services is enforceable only if it is clear and the beneficiaries are fully

[page 466] informed.202 For an agreement to have been made on a fully informed basis, the executor must fully disclose to the beneficiaries any potential benefit or gain to be made by the executor from the receipt of such commission. Factors that impact on the degree of required disclosure include the relative sophistication of the beneficiaries, the need to explain the desirability of taking legal advice and the real possibility or actuality of a conflict of interest.203 An executor who is also solicitor for the estate should, moreover, when seeking the beneficiaries’ consent to charge executor’s commission, as a ‘bare minimum’ disclose:204 • details of the work (to be) done to justify the commission; • if legal fees are also charged, particulars of the basis for those fees; • that the beneficiaries are entitled to have the court assess the commission;205 and • that it is desirable that the beneficiaries seek independent legal advice on their position on the issue of consent to the payment of executor’s commission. It may well prove prudent, in some instances, for the executor-solicitor to refrain from concluding any agreement with the beneficiaries until they have received independent legal advice. Irrespective of the executor’s identity, any apparent misinformation, unfairness or undue pressure to which he or she is a party will lead the court to decline to enforce the agreement.206 For this reason, the court will closely scrutinise the circumstances surrounding any such agreement. For the executor’s protection, the relevant consent should be secured in writing,207 in anticipation of future services rather than as a means to receive payment for past services.208

Parameters of court’s jurisdiction to award remuneration 13.49 Where the will makes no provision for a personal representative to be paid, courts are not stingy in acceding to the application for commission,

assuming that the executorial functions have been properly discharged.209 Indeed, it has been judicially observed that, in this instance, the allowance of commission is the rule, not the exception.210 The foregoing does not mean, however, an award of commission in the amount requested. The statutory language in which the court’s power to grant remuneration is phrased gives only limited clues as to the factors it may or should take into consideration in determining the quantum of any such grant. That the legislation states that the remuneration is to be for the executor’s ‘services’ or ‘pains and trouble’ reveals that the quantum must reflect the value of those services, or otherwise the pains and trouble to which he or she has been subject as a result of the office. The reference to ‘pains and trouble’ does not require proof that the personal representative has undertaken work or been burdened by stresses of an extraordinary amount; the extent or degree of such burdens is, inter alia, taken into account by determining what percentage of the value of the estate the court ought to award.211 But otherwise the reference to an amount the court thinks ‘fit’, ‘just’ or ‘just and reasonable’ does little to supply specifics to a judge facing a decision as to quantum. Specificity lies only in the percentage limits imposed [page 467] by statute in the Northern Territory, Tasmania, Victoria and Western Australia.212 Beyond this, the courts enjoy a broad discretion to structure remuneration by way of a commission, whether by percentage (on income and/or capital) or lump sum.213

Relevant factors 13.50 The breadth of the statutory discretion has led judges, cognisant at the same time of not imposing a fetter on the discretion, to list various matters that can influence the quantum of remuneration granted. These include the amount of work and judgment involved in realising assets and earning income, the extent and level of administrative activities, the level of responsibility generally, the amount of work performed not reflected in financial terms, the

duration of the administration, the size of the estate214 and its capacity to pay, work of a non-professional nature performed by professionals,215 and (encompassingly) executors’ pains and troubles relative to the result.216 Again without purporting to fetter the curial discretion, and as no more than guidelines, judges not infrequently refer to percentage commissions in other comparable, or distinct, cases in order to glean an indication of the range of commission(s) that may be ‘fit’, ‘just’ or ‘just and reasonable’ in the circumstances. That which a trustee company or the Public Trustee is entitled to charge for equivalent services may also prove a useful comparator, but again this is no more than guidance.217 At the same time, the fiduciary backdrop dictates that an executor’s ‘pains and troubles’ will not usually justify an allowance at a full commercial rate of return218 except pursuant to the terms of the will219 or a valid agreement with the beneficiaries220 that justifies such an entitlement. 13.51 A useful illustration of the judicial approach to fixing the quantum of remuneration, and of some of the main issues that may surface in this context, is found in the judgment of Slattery J in Hawkins v Barkley-Brown.221 The case involved a review of the registrar’s assessment of an executor’s commission on the passing of the accounts.222 The registrar awarded to the executor (H) commission expressed as a percentage of capital realised (1 per cent), income (2 per cent) and assets transferred in specie (0.5 per cent), totalling approximately $61,000. His Honour upheld the registrar’s award, for reasons including the following: • It fell within the ranges of commission commonly awarded in practice, namely from 0.25 per cent to 2 per cent on capital realisations, from 2 per cent to 4 per cent on income collections, and from 1 per cent to 2 per cent on assets transferred in specie.223 • H’s work was more than signing a few cheques and attending a few meetings. Much of it was to do with the account proceedings in which he was involved as part of his executorial duties,224 which ultimately proved beneficial to the estate. • Given the reasonably substantial size of the estate ($8.4m), to award H in the $10,000–$15,000 range, which the applicant beneficiary sought to argue, meant an allowance of

[page 468] commission only at the rate of 0.12 per cent to 0.18 per cent, ‘risk[ed] being characterised as parsimonious’, and failed to give proper recognition to the real ‘pains’ H endured and his ‘trouble’ in the discharge of his duties.225 • An allowance of commission in the $10,000–$15,000 range was ‘totally inadequate’ when contrasted with usual awards in simpler cases.226 Slattery J noted that other, less complicated cases, including where the executors delegated their main functions to solicitors, had generated awards of between 1 per cent and 2 per cent.227 What the judgment reveals, in addition to the potential utility of referring to general benchmark percentages for commission ranges, is the need to focus on what the executorial function has involved. Clearly, where it necessarily involved the executor in litigation on behalf of the estate, the ‘pains’ are likely to be greater than where the administration involves no contention. Slattery J highlighted that ‘pains’ can include responsibility, anxiety and worry,228 and that in the circumstances H’s ‘pains’ were intense at times, not merely arising out of the proceedings but in the ‘ambient general hostility existing between the various parties’. 13.52 The judgment in Hawkins v Barkley-Brown also addressed the impact of the size of the estate on the amount of remuneration that is, in the circumstances, ‘just’ or ‘just and reasonable’. There is a correlation between the size of the estate and the services or ‘troubles’ that come within the executorial function in many cases, but it cannot be assumed as a matter of course, and certainly there is no assumption of direct proportionality between these indicia. In Hawkins it was argued, on behalf of the beneficiary, that an award of commission based upon a percentage is not appropriate for a large estate (the ‘large estate argument’). Underscoring this was an assumption that, because an executor in a large estate will get more, the executor is therefore being compensated just for the size of the estate rather than for ‘pains and trouble’. Slattery J found the large estate argument to be inconsistent with the breadth of the statutory language, which itself envisaged that the court may select a percentage because of its assessment of the executor’s ‘pains and trouble’. His

Honour noted, to this end, that the selection of a particular percentage is the way the statute contemplates that the court will recognise a proper relationship between the amount of ‘pains and trouble’ of the executor and the amount he or she receives in compensation.229 Slattery J added that the large estate argument neglects two further matters. First, it overlooks that the court can, if the executor’s ‘pains and trouble’ have not been great, award a lower commission as a percentage of the estate where the estate is large as opposed to when it is small.230 Second, there is the potential for it to neglect the diseconomies of scale that can arise in large estates, reasoning that:231 [page 469] [a]n executor may have to discharge a much increased human and administrative burden in a large estate. Such estates can bring with them factors such as greater complexity of administration, more sophisticated and argumentative beneficiaries, and a greater risk of litigation. Such factors in larger estates may require the appointment and retention of executors with special qualities who have the confidence of the testator. A larger award of commission may be warranted as the reward for the discharge of an executor’s duties in the more active circumstances of the administration of a large estate.

The relevant consideration, therefore, is not the size of the estate per se, but what executorial activities have been carried out in relation to it. The size of the estate must, if it is to generate a higher commission by virtue of its size, translate into greater services or ‘troubles’ for the executors. That this is not infrequently so, as appears from the above, is no licence to approach the issue by assuming that the mere fact that the estate is of a particular size is a factor that translates to the rate of commission to be allowed.232 13.53 If an executor has delegated some of his or her responsibilities to professionals and these services have been paid for, the delegated work is not ordinarily taken into account for the purpose of determining the executor’s ‘pains and troubles’. In this context, it is legitimate, moreover, for the court to reduce the amount of commission payable, on the logic that the estate should not pay twice for services rendered and performed and charged to the estate.233 However, an executor’s actions in dealing with and making decisions in relation to the advice from professionals is relevant in determining the amount

of commission.234

Power to award remuneration prospectively 13.54 The statutory conferral of power on the court to grant an executor commission is not limited, in its terms, to a grant of commission for work already done. Though there is nineteenth-century Victorian authority revealing a reluctance to order commission to trustees in the future (prospective commission),235 this sits poorly with the breadth of the statutory language used, and represents an unjustified fetter on the curial discretion. So in 1912 the High Court of Australia in Nissen v Grunden,236 in overruling a Victorian Full Court decision to the contrary, held that the Victorian Supreme Court — and so the Supreme Courts of other states and territories in view of equivalent statutory wording — has power to grant commission, past and future, to executors, administrators and trustees for their pains and trouble if it is for the benefit of the estate. Various judges, in Victoria and elsewhere, have subsequently made orders for prospective commission.237

Power to increase remuneration set by will 13.55 From one perspective, it can be argued that an executor’s acceptance of office for remuneration stated in the terms of the will represents an assent to the terms, including those relating to remuneration. And in cases involving the issue of whether a legacy should be in satisfaction of remuneration, some judges have referred to an executor ‘contracting’238 or ‘quasi-contracting’239 himself or herself out of any entitlement to receive additional remuneration via [page 470] an order of the court. More generally, the question ultimately focuses on whether, by granting a legacy to an executor or by stipulating for his or her remuneration via the terms of the will, the court’s jurisdiction to award further remuneration should be ousted. 13.56

Over a century ago, the Full Court of the Supreme Court of Victoria

in Winter Irving v Winter240 ruled that, notwithstanding the court’s statutory discretion to grant commission,241 ordinarily the court would not grant commission to an executor where the testator has by his or her will provided remuneration to the executor for his or her pains and trouble. The court reasoned that, if a testator has ‘in clear and distinct terms measured the amount of the remuneration to be received by his executors, and they accept his view by proving and acting under the will, the court ought to enforce his intention’.242 This reasoning sits well with the contractual-type analogy mentioned above; a person who has agreed to perform a task for a set remuneration should not be entitled to successfully invoke the court’s jurisdiction to increase that remuneration. This is all the more so in circumstances, it may be suggested, where the person who agreed to perform the task owes fiduciary duties to the estate, and the person who set the remuneration is not able to challenge the claim. Consistent with New South Wales courts’ historical approach to construing a legacy to an executor as being in satisfaction of a claim for commission,243 the bulk of case law in that jurisdiction, which is hardly recent, can be viewed as supporting the Winter Irving approach, although not without some obiter dissatisfaction.244 New South Wales courts do, in line with the Queensland counterparts, nonetheless recognise a jurisdiction to increase remuneration where the amount prescribed under the will is so small as to be illusory.245 There is also clear case support for the Winter Irving approach at appellate level in Tasmania, albeit without reference to the Victorian case. The Full Court in Re Medwin,246 in construing a provision that conferred on the court a general power to grant commission to executors,247 equivalent to the current provision,248 remarked: It would be a bold thing to say that this section gives the court power to grant commission in excess of what has been named by the testator in his will, and … accepted by the executor, when he accepts the office of executor … [T]he giving of a sum in the will and the assumption of office by the executor amount to a stipulation by the testator, and an agreement by the executor to be bound by that stipulation … [T]he provisions of the [relevant Act] are not to be construed as giving the court any power to alter an arrangement promulgated by the testator and impliedly accepted by the executors and trustees.

Their Honours feared that to see the matter otherwise ‘would go close to assuming power to alter the will’.249 Yet Re Medwin was subsequently distinguished in Re Stewart,250 where the court allowed commission on corpus

in circumstances where the will allowed the executors and trustees only commission on income, on the ground that the testator in Re Medwin, [page 471] unlike the testator in Re Stewart, had bequeathed a sum to his executors clearly by way of their remuneration. This artificial means of distinguishing Re Medwin suggests an underlying dissatisfaction with its reasoning. 13.57 Courts in South Australia, Western Australia and New Zealand have exhibited no such compunction. As far back as 1867 South Australian case authority indicated that the level of remuneration established under the will did not fetter the court’s discretion to award a higher sum.251 In New Zealand, a similar view has been adopted in a series of decisions since 1884.252 Western Australian endorsement of this approach has occurred more recently,253 as it has in England.254 This approach has the merit of giving effect to the literal meaning of the statutory language, and aligns with courts’ modern reluctance in various contexts to read down a grant of ostensibly unfettered discretion by non-statutory limitations. 13.58 But the foregoing does not mean that, in these jurisdictions, courts will award remuneration in excess of that prescribed by the will as a matter of course. The executor carries a potentially weighty onus in this regard, as explained by Stout CJ in Re Allen McLean (deceased):255 The proper rule to be applied is, we think, that where the testator has left to his executors a legacy which he might reasonably consider a fair allowance for their services in administering his estate, having regard to the trouble and responsibility he expected to be imposed on them when discharging this duty, that legacy ought to be treated as being prima facie adequate remuneration for their services. If in such a case the executors desire to obtain further remuneration, the onus lies on them of showing clearly that the remuneration allowed is inadequate, or that there are special circumstances in connection with the administration which probably were not in the contemplation of the testator when he fixed the amount of the legacy bequeathed to his executors, and which justify an additional allowance.

In Re White256 Kellam J of the Victorian Supreme Court saw the above statement as ‘accord[ing] with sound common sense’ and as carrying greater flexibility than the ‘somewhat more rigid approach’ of the Victorian Full Court only 5 years earlier in Winter Irving. This led his Honour to conclude that,

purely as a matter of construction of the broad statutory power to authorise remuneration, unfettered discretion lies in the court to allow remuneration as is ‘just and reasonable’. As the relevant provision is not expressed to be subject to the terms of the will, those terms arguably cannot confine the court’s jurisdiction. Yet Kellam J in Re White was not willing, in view of the Full Court’s decision directly on point in Winter Irving, as a single judge to depart from that decision.257 13.59 The principle in Winter Irving, should it apply, is not as unyielding as it seems on first blush. A’Beckett J in that case stated that ‘where … what is given to executors is given expressly as remuneration, and if there are no exceptional circumstances to justify the court in exercising its powers …, the mere inadequacy of the remuneration provided by the testator is no ground for giving more than the testator intended to give’.258 It follows that there are occasions where the court can grant additional remuneration to an executor, premised on proof of ‘exceptional [page 472] circumstances’. The extent to which this approach differs from that espoused in the extract from Re Allen McLean above depends on the breadth of meaning accorded to the term ‘exceptional’. Both approaches recognise that an award beyond the will-based remuneration is the exception, not the rule. An illustration of exceptional circumstances is found in Re Dunne,259 where a testator left legacies of £300 to each of the plaintiffs in consideration of acting as his executors and in place of any remuneration to which they might be entitled for those services. The estate was substantial and the executors undertook considerable work over several years in its administration but, due to a general decline in value of assets over that period, the pecuniary legacies given to the plaintiffs failed. In granting the plaintiffs’ application for a 2.5 per cent commission on the corpus and income, Lowe J said:260 The decision in Winter Irving v Winter makes it clear … that I have power to make the order now sought, and that where application is made to the court for further remuneration the court will, if there are exceptional circumstances, exercise that jurisdiction notwithstanding that the testator has in his will made provision for a legacy. In this case the testator in his will has provided a legacy

of £300 to each of the applicants ‘in consideration of their acting as an executrix and executor of this my will and in lieu of any remuneration that they may be entitled to for such services’. In the actual result nothing has been, or can be, paid to either of them. This … is a special circumstance which entitles me to allow them commission for their pains and trouble in administering the estate.

Much more recently Kellam J in Re White261 found exceptional circumstances where trustees of a charitable trust, whose annual £250 remuneration had been fixed by the will many years earlier, had been administering substantial assets. In ordering that their remuneration should be increased to 3.5 per cent of the trust’s annual net income, Kellam J was heavily influenced by the changed circumstances surrounding the administration of the trust. First, some 44 years had elapsed since the deceased’s death. Second, the trustees now held and administered assets in excess of $17,000,000, generating an annual net income exceeding $900,000. His Honour remarked, in this regard, that ‘the degree of responsibility and skill to be exercised by the trustees is high and to a considerable degree proportionate to the value of the estate’.262 Third, trustees’ investment powers and obligations under the trustee legislation had changed significantly since the probate was granted, which brought a commensurate increase in the burden and responsibilities of trustees.263 The foregoing led Kellam J to conclude as follows:264 I am satisfied on the material before me that although the sum of £250 per annum was adequate remuneration for the trustees in the early years of the administration, it has for many years been totally inadequate by reason of inflation and by reason of the amount of time now required to administer a substantial fund involving a considerably more diverse investment portfolio than that contemplated by the deceased, and the requirement that the trustees consider carefully each charitable distribution from the income of the trust fund.

That the bulk of the trust’s net income was distributed to charitable institutions led his Honour to a fourth consideration supporting a finding of exceptional circumstances, namely ‘a significant public interest in the continued successful performance of the trust fund’.265 13.60 There are grounds to conclude, accordingly, that, whether under the Winter Irving approach or the ostensibly broader approach in several Australian jurisdictions, a substantial increase in the responsibilities of executors and trustees in administering an estate over a period of time is likely, where the remuneration stipulated in the will has become manifestly

[page 473] inadequate, the court may be inclined to grant additional remuneration.266 This is more likely where the original remuneration was a fixed monetary sum. Where it is instead set as a percentage of the estate (of capital and/or income), a commensurate increase in the remuneration comes with an increase in the size of the estate. Yet this by itself is no death knell to a successful application for further remuneration, if the circumstances reveal an otherwise substantial increase in administrative burden and/or that the stipulated percentage is heavily disproportionate to the work involved.

Power to reduce remuneration set by will 13.61 It stands to reason, by parity of reasoning, that circumstances may arise where a court reduces the remuneration payable. It may be, for instance, that the ballooning of the estate has rendered a percentage commission, which was generous when the estate was small, to now be over-generous. New South Wales is unique, though, in statutorily granting the court the power to reduce commission, of its own motion or on the motion of any person interested in the estate, if it considers that an amount (to be) charged in respect of any estate is excessive, notwithstanding any provision contained in a will authorising the charge.267 The National Committee for Uniform Succession Laws has endorsed this approach,268 as has more recently the Victorian Law Reform Commission.269

Reduction or denial of remuneration due to breach 13.62 The claim of an executor to commission, like the parallel claim of a trustee for commission, is liable to be reduced or denied if the executor has committed one or more breaches of duty as executor. Although there is no deprivation of the court’s jurisdiction to award commission to an errant executor — the statutory power is phrased too widely for this — there is nothing to preclude the court taking into account the behaviour of the executor, vis-àvis his or her executorial functions, in ascertaining what is ‘fit’, ‘just’ or ‘just and reasonable’ commission in the circumstances. It stands to reason that it is hardly ‘just’ or ‘reasonable’ for an executor who has failed to properly perform

or, of even more concern, flagrantly breached his or her duties, to be allowed full commission for services as executor. This explains judicial remarks such as that executors must, to be allowed commission, ‘shew that their conduct of the affairs of the [estate] is free from any suspicion, and that there has been no neglect on their part which has in any way prejudiced the estate’.270 13.63 Ultimately, in making an assessment of how an executor’s behaviour should impact upon a claim for commission, the court will assess the nature of that behaviour — in particular, whether it was no more than an oversight or an isolated incident of negligence, or rather amounted to recklessness or fraud — as against the services the executor has carried out for the benefit of the estate. The court’s discretion here is not ‘all or nothing’; one or more breaches of duty may generate a reduction in what may otherwise have been the commission allowed, rather than an outright denial of commission.271 The quote extracted at the conclusion of the previous paragraph should not be read as suggesting otherwise. [page 474] Of course, there will be occasions where commission will be refused, where the (mis) conduct of the executor goes to the core of his or her duties, and reveals a disdain for the executorial position and role. For example, in In the Will of Greer,272 where an executor, with the concurrence of his co-executor, purchased a portion of the trust property at auction, Street J refused commission, reasoning that to allow commission would equate to ‘condoning or expressing approval of a transaction which … may hereafter be successfully impeached by the infant beneficiary as prejudicial to his interests’. That the case involved a blatant fiduciary breach is what appears to have influenced his Honour in denying commission. On other occasions, breaches of duty have not served to wholly deprive an executor of commission, where the evidence reveals that he or she has in good faith endeavoured to fulfil executorial duties. An illustration is found in Jones v Estate of Farley,273 where the executor (J) failed to file probate accounts and have them passed for a period of 7 years, and was then removed as executor by

the court for lack of appropriate attention to estate affairs. The issue was whether J’s behaviour should deprive her of commission. The evidence revealed that J expended extensive time and effort to the benefit of the estate in supervising the management of the property and effecting its beneficial sale. As to these ‘critical matters’, Santow J was satisfied that J exercised her executorial duties ‘with proper attention, skill and competence’, while at the same time not condoning the other matters that led to her removal.274 J should not, as a result, be denied commission, his Honour ruled, reasoning as follows:275 … while the failure to file probate accounts and have them passed for seven years was regrettable, I am satisfied, taking into account the information actually given to the beneficiaries on an annual basis coupled with that information not being in any way challenged when the probate accounts were eventually filed and passed, and taking into account the facilities made available for inspecting the working papers, that beneficiaries were not materially prejudiced in the circumstances and that this should not disentitle [J] from commission.

As to whether the commission should be reduced, Santow J held that, as the amount claimed, compared to J’s strenuous and effective efforts, was ‘already sufficiently modest’,276 no reduction was warranted. 13.64 Even if the executor’s breach of duty is not fraudulent or reckless, or tainted by fiduciary indiscretion, there may be grounds to refuse commission if the breach prejudiced the estate. The absence of prejudice is arguably the core reason why Santow J in Jones declined to refuse or reduce commission. But in Chiro v Linton (No 2)277 Lunn J refused commission to an executor who had engaged in inordinate delay in distributing the estate. Probate of the will had been granted in 1970 but there was no distribution until 2004, at which time the balance of the estate was paid into court. To the extent that the delay could be explained by uncertainty about who could take under the will — the sole beneficiary had died in 1975 — the executor should have applied for advice and directions from the court.278 Lunn J found that the executor was at fault in not distributing the estate by no later than mid-1972, and so allowed him commission only up to that date. What clearly influenced his Honour in so ruling was that, had the executor [page 475]

‘done what he should have done when he should have done it, the beneficiaries … are likely to have been much better off financially’.279

Denial of remuneration where neglect to pass accounts 13.65 The probate statutes in New South Wales, the Northern Territory and South Australia contain a provision denying an allowance for commission to a personal representative who neglects or omits, without an order of the court (or, in New South Wales, without good reason), to pass his or her accounts in accordance with the statutory requirements.280 The same consequence ensues in South Australia for a neglect to dispose of any estate with which the personal representative is chargeable according to the due course of administration.281

Legacy in lieu of remuneration? 13.66 As charging clauses have been viewed as bounty of the testator, courts have on several occasions been faced with the question of whether the testator intended a legacy to an executor to be in substitution of an entitlement to claim commission or other remuneration pursuant to an order of the court. English courts, no doubt reflecting their rigid approach to the award of commission, went so far as to adopt a presumption that a legacy to an executor is given on condition that he or she acts in that office, and that he or she is entitled to no further remuneration beyond the amount of that legacy. As far back as 1807 Sir William Grant MR stated that unless the legacy ‘was intended for the executor in a distinct character … the presumption prima facie is, that it is given to him, as executor’.282 The presumption was rebuttable, but not that easily, it appears.283 13.67 That Australian courts had, from their inception, an unfettered power to award commission did not preclude New South Wales judges, in particular, applying the same presumption.284 So the executor-legatee could, unless there were grounds to rebut the presumption, only seek commission from the court once he or she had disclaimed the legacy. Rather than adopting an ostensibly unyielding presumption against the backdrop of an exceptional curial jurisdiction to order commission, in Australian law it is preferable to construe the terms of the testator’s will in an effort, denuded of assumptions, to

ascertain his or her intention. In 1907 a Victorian judge attributed the presumption to ‘friendships [being] possibly stronger and more unselfish in those days’ or that ‘people had comparatively little to do formerly’.285 Seven decades later another Australian judge saw little to commend ‘a distinction between a legacy given to an executor in his character as such, and one given in consideration of his services as executor or in lieu of commission’.286 [page 476] Australian law has, to this end, arguably moved beyond the presumptive approach. Instead, it appears that it is only if the testator’s intention is that the legacy should represent recompense to the executor for time and trouble that he or she will be refused commission.287 A legacy ‘in lieu of commission’ indicates an intention to deprive the executor of further remuneration.288 The same outcome has ensued for legacies given to an executor as remuneration ‘for his trouble therein’289 or ‘in consideration of his services as my executor’.290 But an early New South Wales ruling wherein a legacy given to an executor ‘as one of my executors’ was similarly construed seems marginal.291 On the other hand, lacking an indication that the legacy was to be in satisfaction of any claim to remuneration, there seems little ground to conclude against a separate claim for remuneration. For example, in Re Lack292 the testator bequeathed to a legatee ‘the sum of five hundred dollars’, and later in the will appointed two persons as executors, one of whom was that legatee. McPherson J reasoned that, as the legacies were not expressed to be in lieu of commission, or in consideration of the executors as executors, or even to them ‘as’ executors, it could not be said that the testator intended the legacy to exhaust the executors’ claim to commission for their time and trouble.293 In so ruling, his Honour disclaimed any presumption in Queensland law that a legacy should oust a claim for commission,294 a view arguably reflective of modern Australian law.295 13.68 In some Australian courts there is, in any event, an indication that, despite a will being amenable to being construed as marking the legacy as in lieu of remuneration, the court may entertain, and grant, an application for commission if the legacy is so inadequate as to be illusory.296 This remains an

exceptional case, as ‘the mere inadequacy of the remuneration given by the will’ is not by itself a ground to grant commission.297 In any case, an executorlegatee may, as noted above, disclaim the (inadequate) legacy and apply to the court for commission. 13.69 Irrespective of the foregoing, to the extent that Australian courts acknowledge that the statutory jurisdiction to award commission can be utilised to increase an existing entitlement to commission under the terms of a will,298 arguments over whether a court’s discretion should be hamstrung by a testamentary provision for commission via a legacy may be less than fruitful. After all, if a court has the power to increase an existing testamentary entitlement to commission, there is no reason in principle why it should not have the very same power where [page 477] that entitlement takes the form of a legacy. In each case, though, the executor must convince the court that the remuneration granted is insufficient, usually in the context of a lengthy administration in which the executorial or trustee duties have become more onerous.

Award of remuneration to one of several personal representatives 13.70 Case authority supports the proposition that, on the grant of commission to executors, they are to be treated as a body, questions of distribution among them to be decided between themselves.299 The issue then arises as to what happens when only one of a number of executors seeks commission. The South Australian Act, phrased in terms of the court allowing commission to ‘any’ executor (or administrator or trustee)300 suggests that the court can determine the matter on application by one or more executors. The Western Australian legislation is similarly phrased,301 but dedicates a specific provision empowering the court to apportion the total amount of commission as between the trustees ‘in such manner as it thinks fit’.302 Although not explicitly addressed by statute elsewhere, the case law favours the court’s jurisdiction to make an order for commission to a single executor

or trustee. For instance, in Re Gitsham303 the Supreme Court of Victoria granted commission to one trustee where the other two had abandoned any claim for commission. In Re Bowman’s Settlement,304 where only the surviving trustee applied for commission, Napier J followed the ‘established procedure’ of referring the petition for commission to the Master for the purposes of quantifying the applicant’s claim. This approach has subsequently been followed in Victoria,305 in a case where two of the three executors claimed commission. It was then applied in New South Wales by Needham J in Re Estate of Wilson (deceased),306 in the absence of any binding authority ‘which requires me to hold that, unless all executors join in the application or consent to it, the court cannot grant commission to fewer executors than all of them’. His Honour ruled that, if an executor (G) is not to claim commission, and undertakes for himself and his personal representatives not to do so, there was no reason why G’s co-executor should be deprived of any commission to which he might be held entitled for his ‘pains and trouble’. The amount, if any, to which the co-executor should be held entitled was to be ascertained via a report from the Master.

Claim to remuneration where lawyers engaged to perform professional services 13.71 It is not unusual for lawyers to be nominated to act as executors, or to be engaged by the executors nominated. In the latter context, the lawyer is remunerated according to the terms of the costs agreement or otherwise on a quantum meruit basis, whether or not by reference to an applicable scale. The issue here is not the lawyer’s charges — the basic rules pertaining to [page 478] the recovery and quantification of costs applies here as it does in other contexts — but the extent to which the engagement of lawyers should reduce, if at all, the commission that the executors may claim. There is no basis for any reduction where the lawyer is engaged to provide professional services; these are, after all, not within the domain of the lay executor. There are many functions of an executor that do not require the engagement of a professional,

such as a lawyer, a real estate agent or an accountant, but whom an executor may engage to effect the receipt of money into and out of the estate. In this context the executor’s actions in selecting, coordinating, dealing with and making decisions in relation to the advice of these professionals are factors relevant to the setting of commission.307 Discharge by professionals of substantial duties that an executor could otherwise discharge does not, therefore, deprive the executor of commission for the discharge of related executorial duties, although it will likely reduce what the executor would have been awarded had he or she not engaged those professionals.308

Claim to remuneration by lawyer-executors 13.72 Where lawyers are appointed executors, the issue arises as to the distinction between commission that may be payable in the performance of executorial functions, and fees that may be chargeable for providing professional services. The latter are chargeable only pursuant to a charging clause in the testator’s will; absent such a clause, fiduciary law precludes executors, like trustees, from charging for professional services and limits their recovery, like other executors, to out-of-pocket expenses.309 The concern is to avoid the risk of double compensation, that is, being paid for the same work twice, once by way of commission and a second time by way of professional fees. The distinction here is between ‘professional’ and ‘nonprofessional’ service. Rendering of the former — say, by a lawyer in the conduct of legal proceedings — is to be compensated separately from the ‘pains and trouble’ of an executor in discharging executorial duties in relation to the proceedings.310 Although frequently involving lawyers, professional services can refer to those supplied by, say, accountants or real estate agents. Helsham J in In the Will of Sheppard311 concisely addressed each of these issues, stating the ‘general rule’ in terms that the amount allowed against an estate for the rendering of a professional service in connection with its administration does not affect the quantum of commission allowed, ‘whether the professional services are rendered and charged for by the executor or by some stranger to the estate’. But his Honour acknowledged a relationship between professional and non-professional services, and its potential impact on the quantum of commission, with the following remarks:312

[page 479] So that the professional charges allowed will not of themselves affect the quantum [of commission], this must be fixed having regard to the pains and trouble of the executor in the administration of the estate with reference to the accounts being passed and the period covered by them. There may be various indirect effects on the quantum of commission by reason of the estate being handled by professional men, such as the fact that their professional skills enable them more quickly and efficiently to carry out the necessary executorial duties, or the fact that the knowledge gained in carrying out professional activities for the estate may reduce the work, hence the pains and trouble, in performance of executorial duties. But the assessment must be made by reference to what has been done by the executor in the performance of his executorial duties and not having regard to what he may have been entitled to receive as a professional man.

13.73 The position differs where the will allows the executor to recover for both non-professional and professional work at the executor’s professional rates and when non-professional charges are allowed out of the estate. In this event, the amount of the non-professional charges are taken into account in fixing — that is, reducing — the quantum of the commission, so that the estate does not pay twice for the same work.313 If the will permits the executor to charge only professional fees to the estate, he or she can charge professional rates, including hourly rates, only for those tasks that are professional tasks.314 At the same time, professional work done by an executor and not charged against the estate as professional fees may be taken into account as a reason for increasing the allowance of commission.315

Entitlement of Public Trustee and trustee company to be paid Fees chargeable by Public Trustee (or equivalent) as personal representative 13.74 The legislation creating the office of the Public Trustee (in New South Wales, the NSW Trustee; in Victoria, the State Trustees) in each jurisdiction entitles the Public Trustee to charge for services supplied.316 As the Public Trustee can perform services as a personal representative, it can therefore charge for those services, without an application to the court, according to this entitlement. The role of the Public Trustee, it has been observed, is ‘not a philanthropic one’, as it ‘expects not only to be reimbursed for its activities,

but also to receive by way of profit a commission’.317 13.75 There is nonetheless some statutory control over the fees the Public Trustee may charge. In the Australian Capital Territory the fee chargeable is either that prescribed by the relevant Act, or otherwise the fee that is determined by the Minister.318 In New South Wales [page 480] and Tasmania, the fees chargeable and/or limits on these are prescribed by the regulations.319 In the Northern Territory the Public Trustee may charge for services it provides at the rate or amount determined by the Minister, by notice in the Gazette.320 In South Australia the Public Trustee may charge at rates or in amounts fixed by the regulations,321 or as it determines in particular cases subject to maxima or minima rates or amounts fixed by the regulations.322 But the legislation reserves to the court, upon application by the Public Trustee or any person interested, in the special circumstances of a particular case, to fix the commission to be charged at a higher or a lower rate than that fixed or allowed under the regulations, or direct that no commission be charged.323 The position in Queensland is different; the Public Trustee is entitled, by notice in the Gazette, to fix its own fees and charges.324 However, there is a limit to the Public Trustee’s autonomy in this regard. Statute requires that the fees and charges be reasonable having regard to the circumstances in which the service is provided,325 and that the amount be determined having regard to the type and complexity of the service, and the degree of care, responsibility, skill or special knowledge required to perform the service.326 There is in Victoria a similar autonomy vested in the State Trustees, limited to the charging of ‘fair and reasonable commissions, fees and remuneration’ for estate-related services.327 In Western Australia the Public Trustee must, in line with the agreement with the Minister,328 determine a scale of fees for a function it performs or a service it provides.329 A scale of fees has no effect unless it is published in the Gazette.330 The Public Trustee is entitled to charge fees not exceeding those set

out in the latest published scale of fees before it commences to perform the function or provide the service.331

Fees chargeable by trustee company as personal representative 13.76 Trustee companies may act in the capacity of a personal representative,332 in which capacity they are statutorily entitled to charge for their services. Prior to 6 May 2010, statutory provisions governing charging by trustee companies were found in the trustee companies legislation,333 but thereafter dedicated sections in the Corporations Act 2001 (Cth) operate to the exclusion of the companies legislation.334 The Act entitles trustee companies to charge fees for the provision of traditional trustee company services — which include acting as an executor [page 481] or administrator of a deceased estate335 — subject to any limits imposed by statute.336 This does not, however, prevent a trustee company from charging any fees that a testator, in his or her will, has directed to be paid, or any fees the subject of agreement.337 13.77 The trustee companies legislation in each jurisdiction except Western Australia made provision for the court to reduce commission charged by a trustee company if of the opinion that it was excessive.338 Corresponding provisions in the Corporations Act replicate this jurisdiction,339 other than where the fees are the subject of agreement,340 but unlike its predecessors it lists factors that the court may consider in making its determination, namely:341 • the extent to which the work performed was reasonably necessary; • the extent to which the work likely to be performed is likely to be reasonably necessary; • the period during which the work was, or is likely to be, performed; • the quality of the work performed, or likely to be performed; • the complexity or otherwise of the work (likely to be) performed; • the extent to which the trustee company was, or is likely to be, required to

• • • •

deal with extraordinary issues; the extent to which the trustee company was, or is likely to be, required to accept a higher level of risk or responsibility than is usually the case; the value and nature of any property dealt with, or likely to be dealt with, by the trustee company; if the fees are ascertained, in whole or in part, on a time basis — the time (likely to be) properly taken by the trustee company in performing the work; any other relevant matters.

13.78 The foregoing, to a substantial degree, gives statutory effect to the matters judges had identified in the case law on the court’s jurisdiction to reduce charges under the trustee companies legislation. These were against the backdrop of maximum chargeable remuneration, and the circumstances in which the maximum should not be allowed. Courts had emphasised that each estate should be considered on its own circumstances, and therefore the notion of a set fee for all services, for all estates, is not appropriate.342 A Victorian judge neatly encapsulated the curial approach as follows:343 The task of the court is … to fix the rate of remuneration for the services performed by the [trustee company] in administering and managing the estate. The rates of commission fixed by the trustee company …, being the maximum chargeable by it, are the appropriate rates for the administration of an estate with complicating factors. It follows that a lesser rate is appropriate where the administration is not attended by such factors. No criteria for fixing a lesser rate having been enacted by the legislature, what that rate ought to be is a matter of judgment. The rate fixed ought to provide for the trustee company a fair and reasonable remuneration for the services performed by it having regard to all the relevant circumstances associated with the estate and to the maximum rate which it is authorised to charge … The matters which … ought to be taken

[page 482] into account for these purposes are [1] the degree of responsibility undertaken by the trustee company, [2] the degree of skill and specialised knowledge required and applied by it, [3] the complexity of the testamentary dispositions, and [4] the amount of work done in the performance of the duties.

His Honour opined that ‘[i]t cannot be gainsaid that the degree of responsibility is proportionate to the value of the estate, because the responsibility associated with the management of assets totalling $1 million

must inevitably exceed the responsibility where the assets are of but a few thousand dollars’. However, this should not be read as suggesting that a higher rate of commission is automatically justified where the estate is large. After all, where commissions are calculated as a percentage of the income and/or capital of the estate, the size of the estate is already factored into the commission equation. And there may be occasions, as in Allen v Union-Fidelity Trustee Co of Australia Ltd,344 where, despite the substantial size of the estate, the functions performed by the trustee company are no more than mechanical. In Allen the principal assets were not realised but merely transferred to the residuary beneficiaries, justifying a lesser allowance because little judgment was involved and the work was much less than had the realisation of assets been involved.345 After observing that ‘[i]t would be difficult to think of a large estate which would be more simple to administer’,346 Waddell CJ in Eq reduced the claim commission to well below the published scale. Within the ‘any other relevant matters’ dot point above, or possibly in one of the other dot points, the court may take into account, where the trustee company has been appointed as joint executor, the work that has been done by the other executor(s). To the extent that the latter has reduced the work done, or needing to be done, by the trustee company, the commission allowable to the trustee company is necessarily reduced.347 A testator who selects as executors and trustees an individual and a trustee company to act jointly nonetheless subjects the estate to the possibility, if not the probability, of two claims being made for commission.

1. 2. 3. 4. 5. 6. 7. 8. 9.

See, for example, 13.7 (partition), 13.9 (order for the sale of minors’ property), 13.10–13.14 (postpone sale), 13.22–13.27 (carry on business). In this context the relevant provision also applies to personal representatives: see P.16. ACT s 81; NSW s 81; Qld s 94; SA s 59B; Tas s 47; Vic s 63; WA s 89. These provisions are modelled on the Trustee Act 1925 (UK) s 57. Cf NT s 50A (‘as the court thinks fit’). As to the court’s jurisdiction in this context, see Dal Pont, pp 758–64. Re Smith [1904] 1 Ch 139 at 144 per Farwell J. Re Smith [1904] 1 Ch 139 at 144 per Farwell J. Crawford v Forshaw [1891] 2 Ch 261. Re Symm’s Will Trusts [1936] 3 All ER 236. Crawford v Forshaw [1891] 2 Ch 261 at 269 per Kay LJ. See, for example, Crawford v Forshaw [1891] 2 Ch 261 at 266–7 per Lindley LJ, at 267–8 per Bowen

10.

11.

12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

22. 23. 24. 25. 26.

27. 28.

29. 30.

31.

LJ, at 269 per Kay LJ (executors’ power to select charities to which to distribute the residue held to be a power coupled with the office). See Dal Pont, pp 695–6. For an application of these principles in the executorial context, see Re Norrington (1879) 13 Ch D 654 (involving a power to postpone sale: see 13.10–13.14); Re Charteris [1917] 2 Ch 379 (involving powers to postpone sale (see 13.10–13.14) and to appropriate (see 13.15–13.21)). Altson v Equity Trustees, Executors and Agency Co Ltd (1912) 14 CLR 341; BC1200048 at 345 per Griffith CJ, at 346 per Barton J. See also Halfhide v Beaven [2003] NSWSC 1207; BC200307893 at [41] per Barrett J. (1936) 54 CLR 519; BC3600034. Pagels v MacDonald (1936) 54 CLR 519 at 528–9; BC3600034. See also at 523–4 per Latham CJ, at 528 per Starke J, at 532–3 per McTiernan J. ACT s 50(1); Conveyancing Act 1919 (NSW) s 153(1); NT s 80(1). ACT s 50(5); Conveyancing Act 1919 (NSW) s 153(4); NT s 80(7). ACT s 41(2); NSW s 46(2); NT s 54(2); WA s 10(3). Trusts Act 1973 (Qld) s 32(1)(a) (which applies to personal representatives: s 5(1)). SA s 51(1). See also SA s 72C(2) (‘the administrator may sell, or convert into money, the whole, or any part, of an intestate estate’). SA s 51(2). Tas s 39(1); Vic s 44(1). ‘Personal chattels’ means carriages, horses, stable furniture and effects, motor cars and accessories, garden effects, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, furniture, jewellery, articles of household or personal use or ornament, musical and scientific instruments and apparatus, wines, liquors, and consumable stores, but does not include any chattels used at the death of the intestate for business purposes, nor money or securities for money: Tas s 3(1); Vic s 5(1). Tas s 33(1); Vic s 38(1). Tas s 33(7); Vic s 38(7). Trusts Act 1973 (Qld) ss 4(4), 32(1)(a); Trustees Act 1962 (WA) ss 5(2), 27(1)(a). Re Kerrigan [1916] VLR 516 at 523 per Cussen J. ACT s 26(2); NSW s 26(2); NT s 14(1); Qld s 34(1); SA s 20(1); Tas s 16(1); Vic s 13(1); WA s 31. This, in any case, reflects the general law: In the Will of Hinsch (1896) 17 LR (NSW) B&P 21 at 22 per Owen CJ in Eq. ACT s 28 (limited to land); NSW s 28 (limited to land); Qld s 37 (any property); SA s 23A (limited to land); Vic s 17 (limited to land); WA s 34 (any property). ACT s 30; NSW s 30; NT s 15; Qld s 35; SA s 21; Tas s 17; Vic s 15; WA s 32. Under the general law a trustee must not sell trust property on terms that have the effect of depreciating its value, unless there are reasonable grounds for doing so: Dance v Goldingham (1873) LR 8 Ch App 902 at 910–13 per James LJ. ‘Partition’ is the term utilised to refer to the dividing of property as between persons who hold land together as joint tenants or tenants-in-common, thereby terminating co-ownership of the land. ACT s 52; NSW s 58; NT s 84; SA s 48; WA s 19 (or direct the principal registrar to effect such partition). In the territories, New South Wales and South Australia the legislation also empowers the court to order and direct the course of proceedings to be taken in regard to the expediency and mode of effecting apartition: ACT s 51(d); NSW s 57(d); NT s 82(d); SA s 47(d). This is because the relevant provisions in the territories, New South Wales and South Australia refer to an inquiry of the court, which means an inquiry under ACT s 51; NSW s 57; NT s 82; SA s 47,

32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42.

43.

44. 45.

46.

which is limited to intestate estates. There is no such limitation in the Western Australian legislation. Trusts Act 1973 (Qld) s 32(1)(b) (refers to concurring in the partition of trust property); Settled Land Act 1884 (Tas) ss 3(c), 40A (concurring in the partition of land); Property Law Act 1958 (Vic) s 35(3) (partitioning of land remaining unsold). See Civil Law (Property) Act 2006 (ACT) ss 242–247; Conveyancing Act 1919 (NSW) ss 66F–66I; Law of Property Act 2000 (NT) ss 37–45; Property Law Act 1974 (Qld) ss 37–43; Law of Property Act 1936 (SA) ss 69–84; Partition Act 1869 (Tas); Property Law Act 1969 (WA) ss 126–129. See, for example, QLRC, Report 65, Vol 2, pp 213–14. Re Kemnal and Still’s Contract [1923] 1 Ch 293 at 309 per Lord Sterndale MR. See also at 310–11 per Warrington LJ, at 315 per Younger LJ. Halfhide v Beaven [2003] NSWSC 1207; BC200307893 at [44] per Barrett J. As to the requisite standard of care generally, see 12.2, 12.3. SA s 63. Trustee Act 1925 (ACT) s 84(1); Trustee Act 1925 (NSW) s 84(1). Trustees Act 1962 (WA) s 5(2), (3). Trusts Act 1973 (Qld) s 32(1)(a), (1)(b) (which applies whether or not a contrary intention is expressed in the trust instrument: s 31(1)); Trustees Act 1962 (WA) s 27(1)(a), (1)(b). Trustee Act 1925 (ACT) s 38; Trustee Act 1925 (NSW) s 38; Trustee Act 1936 (SA) s 28B; Trustee Act 1958 (Vic) s 20. Equivalent, although arguably superfluous, provision is made in Queensland and Western Australia: Trusts Act 1973 (Qld) s 45; Trustees Act 1962 (WA) s 43. Re Kerrigan [1916] VLR 516 at 523 per Cussen J (referring to a duty to sell ‘on the first favourable opportunity’); George v McDonald (1992) 5 BPR 11,659 at 11,668; BC9202094 per Waddell CJ in Eq. Cf King v Berndt (1902) 27 VLR 519 at 521 per Holroyd J, who ruled that a trust to sell ‘with all convenient speed’ was inconsistent with a power to postpone sale, but required the trustees to sell at the first favourable opportunity. His Honour did, however, concede that the words ‘with all convenient speed’ could be construed as confiding ‘a certain discretion’ to the trustees as to postponing the sale, ‘if it is manifest, or they have good grounds for believing, that the postponement would prevent the property from being sacrificed’. This is consistent with the earlier remarks of Selwyn LJ in Grayburn v Clarkson (1868) LR 3 Ch App 605 at 608 that a direction to executors to sell ‘with all convenient speed’ does not render it ‘obligatory upon the executors to sell at any precise, definite, or particular time, but that they were entitled to exercise a reasonable discretion’. See also Garrett v Noble (1834) 6 Sim 504; 58 ER 683 (where executors who were directed by the will to call in the testator’s personal estate ‘with all convenient speed’ continued the testator’s business for some years after his death, with a view to doing ‘the best they could in the complicated state of the testator’s affairs’ (at 514; 687), were not held personally liable for the loss sustained as a result). See, for example, Re Estate of Marden (deceased) [2008] SASC 312; BC200810116, discussed below at 13.12. Trustee Act 1925 (NSW) s 27B(1); Trusts Act 1973 (Qld) s 32(1)(c); Tas s 33(1); Vic s 38(1) (and see also Vic s 44(1)(b); Trustee Act 1958 (Vic) s 13(5)); Trustees Act 1962 (WA) s 27(1)(c) (see, for example, O’Brien v Warburton [2012] WASC 82; BC201201177 at [103], [104] per E M Heenan J). ACT s 51A(1)(a); NT s 83(1)(a); SA s 64(1)(a); Tas s 43(2)(a) (which has been recommended as the ideal for model national uniform legislation: QLRC, Report 65, Vol 1, pp 387–8). The trustee legislation in some jurisdictions also makes specific reference to the court authorising trustees (which include personal representatives: see P.16) to postpone the sale of trust property where this

47. 48. 49.

50. 51. 52.

53. 54. 55.

56. 57. 58.

59. 60.

is expedient in the management and administration of the trust: Trustee Act 1925 (ACT) s 81(2)(b); Trustee Act 1925 (NSW) s 81(2)(b); Trustee Act 1936 (SA) s 59B(2)(b). ACT s 51A(2); NT s 83(2); SA s 64(3). There is no equivalent provision in the Tasmanian legislation. SA s 64(2); Tas s 43(3). Re Estate of Marden (deceased) [2008] SASC 312; BC200810116 at [14] per Gray J (although having earlier remarked that ‘[t]his power will be exercised cautiously, where the interests of justice so dictate’: at [11]). Re Estate of Marden (deceased) [2008] SASC 312; BC200810116 at [16] per Gray J. Riddle v Riddle (1951) 85 CLR 202 at 214; BC5200090 per Dixon J (in the context of s 81 of the Trustee Act 1925 (NSW)). Re Estate of Marden (deceased) [2008] SASC 312; BC200810116 at [17] per Gray J (referring to the same approach adopted by Besanko J in In the Estate of Freebairn (deceased) (2005) 93 SASR 415; [2005] SASC 497; BC200511236 at [24], [25] in the context of a judicial discretion, under SA s 31(10) (since repealed), to dispense with the requirement to provide a surety upon being satisfied that it was ‘beneficial or expedient to do so’: see 11.64). [2014] SASC 12; BC201400146 at [27] per Stanley J. [2008] SASC 312; BC200810116. Re Estate of Marden (deceased) [2008] SASC 312; BC200810116 at [15]. See also Estate of Franczak (2011) 8 ASTLR 160; [2011] SASC 70; BC201102784 at [16] per Gray J (reaching a similar decision). See 13.3. See, for example, Re Norrington (1879) 13 Ch D 654. As to the ‘executor’s year’, see 14.27–14.30. See, for example, Re Charteris [1917] 2 Ch 379 (where Warrington LJ found that, as the executors formed the view, ‘having regard to the financial position at the present time’, that ‘realization could only take place now under the most unfavourable circumstances’ and that they therefore ‘thought it more advisable in the interests of the estate to postpone realization rather than to place securities forming part of the estate upon the market at prices which would result in disaster to the whole estate’, ‘they in so doing were acting in the proper exercise of their discretion’: at 399; see also at 393–4 per Swinfen Eady LJ, at 397–8 per Bankes LJ). ACT s 53; NSW s 59; NT s 85. The limited context indicated by the statutory language tends against the view that these sections are intended to confer on personal representatives a general entitlement to retire from office. As to retirement of personal representatives, see 10.72–10.80. Re Lepine [1892] 1 210 at 217 per Bowen LJ, at 219 per Fry LJ; In the Will of Hinsch (1896) 17 LR (NSW) B & P 21 at 22–3 per Owen CJ in Eq; Re Beverly [1901] 1 Ch 681 at 685–6 per Buckley J; Wigley v Crozier (1909) 9 CLR 425 at 438 per Griffith CJ; In the Estate of Gamble (1915) 32 WN (NSW) 121 at 122 per Street J; Yule v Irwin (No 2) [2016] SASC 178; BC201609986 at [163]–[166] per Nicholson J (citing the first edition of this text). The proposition in the text should not be read as suggesting that a power of distribution in specie and a power to appropriate any part of the assets of an estate towards the satisfaction of a legacy, bequest or other entitlement of a beneficiary are always the same. As a result of a distribution in specie the property in the asset distributed passes immediately on distribution to the beneficiary. An appropriation may, conversely, precede eventual distribution. Upon an appropriation becoming effective, the entire legal right to the asset may remain with the trustee but the entire beneficial interest will pass to the beneficiary notwithstanding that it continues to be held on trust for him or her. Thereafter any appreciation or depreciation in the value of the asset or the fund in question is to the credit or cost of that beneficiary rather than to the estate. See O’Brien v Warburton [2012] WASC 82; BC201201177 at [112] per E M Heenan J.

61.

62. 63.

64. 65. 66. 67. 68. 69. 70.

71. 72. 73. 74.

75. 76. 77. 78. 79. 80.

81. 82.

Wigley v Crozier (1909) 9 CLR 425 at 440–1 per Griffith CJ, at 444 per O’Connor J (‘The principle upon which alone appropriation can be justified … cannot be applied to render an appropriation lawful under conditions in which a sale would amount to a breach of trust’); Wallace v Love (1922) 31 CLR 156 at 165 per Knox CJ and Starke J, at 167 per Higgins J; BC2200015. See, for example, Re Charteris [1917] 2 Ch 379 at 390–2 per Swinfen Eady LJ. Re Charteris [1917] 2 Ch 379 at 386 per Swinfen Eady LJ; Robinson v Collins [1975] 1 All ER 321 at 325 per Pennycuick VC; Re Abergavenny’s (Marquess) Estate Act Trusts [1981] 2 All ER 643 at 646 per Goulding J. In the Estate of Mack (1956) 73 WN (NSW) 218 at 220 per Sugerman J; Wiblen v Feros (1998) 44 NSWLR 158 at 163 per Windeyer J. See 11.68. Re Beverly [1901] 1 Ch 681 at 686 per Buckley J. Cf In the Estate of Gamble (1915) 32 WN (NSW) 121 at 122 per Street J. Re Beverly [1901] 1 Ch 681 at 686 per Buckley J. In the Will of Hinsch (1896) 17 LR (NSW) B & P 21; In the Estate of Gamble (1915) 32 WN (NSW) 121 at 122 per Street CJ; Re Salomons [1920] 1 Ch 290 at 295 per Eve J. Re Lepine [1892] 1 210 at 219 per Fry LJ (speaking in terms of an act ‘done honestly, and righteously, and equally between all the [beneficiaries]’); Hyman v Permanent Trustee Co of New South Wales Ltd (1914) 14 SR (NSW) 348; In the Estate of Gamble (1915) 32 WN (NSW) 121; Re Charteris [1917] 2 Ch 379 at 388–9 per Swinfen Eady LJ. Yule v Irwin (No 2) [2016] SASC 178; BC201609986 at [172] per Nicholson J. Fraser v Murdoch (1881) 6 App Cas 855 at 879 per Lord Watson; Yule v Irwin (No 2) [2016] SASC 178; BC201609986 at [172], [173] per Nicholson J. Yule v Irwin (No 2) [2016] SASC 178; BC201609986 at [162] per Nicholson J. Carr v Carr (1987) 8 NSWLR 492 at 495 per Young J (‘It is … important to realise when one is looking at [NSW] s 46 that its aim is not so much to change the previous law, but rather to set it out in a plain fashion and that it does not differ in any material degree from the power of appropriation which existed before the Trustee Act’). The National Committee for Uniform Succession Laws has recommended that the power to appropriate is more appropriately located in trustee legislation, on the ground that the power should be the same for personal representatives as for trustees: QLRC, Report 65, Vol 1, pp 464–5. See P.16. Trustee Act 1925 (ACT) s 46(1); Trustee Act 1925 (NSW) s 46(1); NT s 81(1); Tas s 40(1); Vic s 46(1). Trustee Act 1925 (ACT) s 46(1)(a); Trustee Act 1925 (NSW) s 46(1)(a); NT s 81(2); Tas s 40(1)(a); Vic s 46(1)(a). Trustee Act 1925 (ACT) s 46(1)(b), (5), (6); Trustee Act 1925 (NSW) s 46(1)(b), (5), (6); NT s 81(3); Tas s 40(1)(b); Vic s 46(1)(b). A settled legacy, share or interest includes any legacy, share or interest to which a person is not absolutely entitled in possession at the date of the appropriation, and (other than in the Australian Capital Territory and New South Wales) is expressed to include also an annuity: Trustee Act 1925 (ACT) s 46(14); Trustee Act 1925 (NSW) s 46(13); NT s 81(13); Tas s 40(8); Vic s 46(8). Trustee Act 1925 (ACT) s 46(7); Trustee Act 1925 (NSW) s 46(7); NT s 81(4); Tas s 40(1)(b); Vic s 46(1)(b). Trustee Act 1925 (ACT) s 46(8)(c); Trustee Act 1925 (NSW) s 46(8)(c); NT s 81(5); Tas s 40(1)(c) (cf Tas s 40(1)(d)); Vic s 46(1)(c).

83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98.

99. 100.

101. 102. 103.

Trustee Act 1925 (ACT) s 46(4); Trustee Act 1925 (NSW) s 46(4); NT s 81(9); Tas s 40(4); Vic s 46(4). Trustee Act 1925 (ACT) s 46(1)(c); Trustee Act 1925 (NSW) s 46(1)(c); NT s 81(10); Tas s 40(5); Vic s 46(5). Trustee Act 1925 (ACT) s 46(3), (12); Trustee Act 1925 (NSW) s 46(3), (11); NT s 81(8); Tas s 40(3); Vic s 46(3). Trustee Act 1925 (ACT) s 46(15); Trustee Act 1925 (NSW) s 46(15); NT s 81(11); Tas s 40(6); Vic s 46(6) (see Long v Comptroller of Stamps [1964] VR 796 at 801–2 per Adam J). Trustee Act 1925 (ACT) s 46(2); Trustee Act 1925 (NSW) s 46(2); NT s 81(14); Tas s 40(3); Vic s 46(3). Trustee Act 1925 (ACT) s 46(13); Trustee Act 1925 (NSW) s 46(12); NT s 81(12); Tas s 40(9); Vic s 46(9). Trusts Act 1973 (Qld) s 33(1)(l); Trustees Act 1962 (WA) s 30(1)(k). Trustees Act 1962 (WA) s 5(2), (3) (see O’Brien v Warburton [2012] WASC 82; BC201201177 at [114] per E M Heenan J). Trusts Act 1973 (Qld) s 31(1). Trusts Act 1973 (Qld) s 33(1)(l)(ii); Trustees Act 1962 (WA) s 30(1)(k)(ii). Trusts Act 1973 (Qld) s 33(1)(n); Trustees Act 1962 (WA) s 30(1)(m). As to fiduciary duties in this context, see 12.21–12.23. Kane v Radley-Kane [1999] Ch 274 at 281–2 per Sir Richard Scott VC. See 12.22. Re Estate of Gamble (1915) 32 WN (NSW) 121 at 122 per Street J; Yule v Irwin (No 2) [2016] SASC 178; BC201609986 at [170] per Nicholson J. Collinson v Lister (1855) 20 Beav 356 at 365; 52 ER 639 at 643, endorsed by Latham CJ in Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319 at 324; BC4600010. See also Barker v Parker (1786) 1 TR 287 at 295; 99 ER 1098 at 1104 per Lord Mansfield Ch J; Re Morish [1939] SASR 305 at 320 per Murray CJ (‘Trustees must be made to understand that they cannot carry on the business of a testator without authority conferred by the will or the sanction of the Court, except with a view to immediate realization’). See 12.15. Strickland v Symons (1883) 22 Ch D 666 at 671 per Pollock B (‘wherever … an executor … finds himself in possession of a business, such as an ordinary shop, or factory, or anything else which requires essentially something to be done for it, there he must do that something whatever it may be’); Dowse v Gorton [1891] AC 190 at 199 per Lord Herschell. Kirkman v Booth (1848) 11 Beav 273 at 280; 50 ER 821 at 824 per Lord Langdale MR. (1884) 26 Ch D 42 at 46, with whom Bowen and Fry LJJ concurred (at 47). Re Hammond (1903) 3 SR (NSW) 270 at 272 per A H Simpson CJ (who, although envisaging that a power to postpone sale allowed the trustees to carry on the testator’s business for several years, added that ‘I desire to guard myself against being understood to hold that the trustees have power to postpone conversion and carry on the business indefinitely’); Re Morish [1939] SASR 305 at 314–15 per Murray CJ (referring to the duty ‘to convert the business, if possible, as a going concern’ and ‘a reasonable time only would be allowed … for the purpose’: at 315). See, for example, Re Smith [1896] 1 Ch 171 (where North J held that a testamentary direction that the trustees ‘shall with all convenient speed after my decease sell and dispose of my business of a pawnbroker (as a going concern)’ was not to be ignored and let down by the subsequent proviso ‘empower[ing] my trustees or trustee to postpone the sale and conversion of my real and personal estate or any part thereof for as long as they or he shall think fit’; his Lordship construed this to mean that ‘the testator did not

104. 105.

106. 107. 108. 109. 110. 111. 112. 113. 114. 115.

116. 117. 118. 119. 120. 121. 122. 123. 124.

consider it desirable that the business should be continued by his trustees’ but at the same time that ‘he did not wish it should be sacrificed by a forced sale’: at 173–4). [1895] 2 Ch 56 at 61. Re Crowther [1895] 2 Ch 56 at 60. See also Re Walker (1901) 1 SR (NSW) Eq 237; Re Hammond (1903) 3 SR (NSW) 270 at 272 per A H Simpson CJ (where a power to postpone sale, and to carry on the testator’s business, stemmed the trustees’ entitlement to ‘sell and dispose of’ the testator’s estate ‘at such times and in such manner … as to [the trustees] in their discretion shall seem best’). (1901) 1 SR (NSW) Eq 32 at 35 per Walker J. Southwell v Martin (1901) 1 SR (NSW) Eq 32 at 35–6 per Walker J; Re Hammond (1903) 3 SR (NSW) 270 at 272 per A H Simpson CJ. Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319 at 324–5; BC4600010 per Latham CJ. As to an executor’s right to indemnity generally, see 13.40–13.42. ACT s 51A(1)(b); NT s 83(1)(b); SA s 64(1)(b); Tas s 43(2)(b). See 13.11, 13.12. ACT s 51A(2); NT s 83(2); SA s 64(3). There is no equivalent provision in Tasmania. SA s 64(2); Tas s 43(3). Trusts Act 1973 (Qld) s 57(1); Trustees Act 1962 (WA) s 55(1). Trusts Act 1973 (Qld) s 57(2); Trustees Act 1962 (WA) s 55(2). The National Committee for Uniform Succession Laws has endorsed this general approach, except to collapse the ‘two year’ and ‘winding up’ scenarios into ‘the period, up to two years from the deceased’s death, that is necessary or desirable for the winding up of the business’. Informing this recommendation was the concern that the reference to such period as is necessary for the winding up has the ‘potential to authorise a personal representative to carry on the business well in excess of two years, possibly leading to disputes with beneficiaries about the period of time that is necessary or desirable to wind up a particular business’, and that stipulating a 2-year period may ‘allow a personal representative to carry on the deceased’s business (and employ any part of the estate in the business) for a period longer than that which is necessary or desirable to wind up the business’: QLRC, Report 65, Vol 1, p 388. See 12.1. Re Brogden (1888) 38 Ch D 546 at 574 per Lopes LJ. Re Brogden (1888) 38 Ch D 546 at 574 per Lopes LJ. See also at 571–2 per Fry LJ. Re Houghton [1904] 1 Ch 622 at 625 per Kekewich J. ACT s 68(b)–(d); Trustee Act 1925 (NSW) s 49(1)(b)–(d); Trustee Act 1893 (NT) s 21; Trusts Act 1973 (Qld) s 44(d)–(f); Trustee Act 1936 (SA) s 28(2)(a)–(c); Trustee Act 1898 (Tas) s 24(2)(a)–(c); Trustee Act 1958 (Vic) s 19(1)(d)–(f); Trustees Act 1962 (WA) s 42(d)–(f). Trustee Act 1925 (NSW) s 49(1)(a), (1)(aa), (2); Trusts Act 1973 (Qld) s 44(a)–(c); Trustee Act 1958 (Vic) s 19(1)(a)–(c); Trustees Act 1962 (WA) s 42(a)–(c). ACT s 68(a); Trustee Act 1936 (SA) s 28(1); Trustee Act 1898 (Tas) s 24(1). Trustee Act 1958 (Vic) s 19(1)(g). ACT s 68(e) (which does not include reference to ‘good faith’, but as powers of personal representatives must be exercised in good faith generally, this omission does not make any difference to the substance of the law); Trustee Act 1925 (NSW) s 49(1)(e); Trustee Act 1893 (NT) s 21; Trusts Act 1973 (Qld) s 44; Trustee Act 1936 (SA) s 28(2)(d); Trustee Act 1898 (Tas) s 24(2); Trustee Act 1958 (Vic) s 19(1); Trustees Act 1962 (WA) s 42. It has been said that the foregoing provisions must be understood in the context of the existing duties placed upon trustees, including fiduciary duties, which in turn weigh against ‘a subjective construction of good faith that allows a trustee to escape liability for breaching those duties merely by acting honestly’: Hodge v De Pasquale

[2014] VSC 413; BC201407090 at [117] per McMillan J. 125. Re Tong [1910] VLR 110 at 117 per Hood J; Re Earl of Strafford (deceased) [1980] Ch 28 at 47 per Buckley LJ, at 51 per Goff LJ; Hodge v De Pasquale [2014] VSC 413; BC201407090 at [77] per McMillan J. 126. Dowling v St Vincent de Paul Society of Victoria Inc [2003] VSC 454; BC200307261 at [33] per Nettle J. 127. Re Jackson [1944] SASR 82 at 84 per Mayo J. 128. Re Irismay Holdings Pty Ltd [1996] 1 Qd R 172 at 175 per Lee J; Dowling v St Vincent de Paul Society of Victoria Inc [2003] VSC 454; BC200307261 at [33] per Nettle J; Brown-Sarre v Waddingham [2012] VSC 116; BC201201729 at [24]–[41] per Habersberger J. 129. Re Irismay Holdings Pty Ltd [1996] 1 Qd R 172 at 175 per Lee J. 130. Dowling v St Vincent de Paul Society of Victoria Inc [2003] VSC 454; BC200307261 at [21] per Nettle J; Robinson v Jones (No 3) [2015] VSC 508; BC201511306 at [25] per McMillan J. 131. Hodge v De Pasquale [2014] VSC 413; BC201407090 at [77]–[81] per McMillan J. See 20.32–20.34. 132. Re Houghton [1904] 1 Ch 622 at 626 per Kekewich J; Re Ezekiel’s Settlement Trusts [1942] Ch 230 at 234 per Lord Greene MR; Re Hoobin (deceased); Perpetual Executors and Trustees Association of Australia Ltd v Hoobin [1957] VR 341 at 343 per O’Bryan J; Ansett Australia Ground Staff Superannuation Plan Pty Ltd (ACN 065 590 178) v Ansett Australia Ltd (ACN 004 209 410) (2004) 49 ACSR 1; [2004] FCA 130; BC200400494 at [50]–[53] per Goldberg J; Robinson v Jones (No 3) [2015] VSC 508; BC201511306 at [27] per McMillan J (listing considerations relevant to court approval of a compromise, including whether the personal representative gave fair consideration to the relevant issues and exercised the discretion in good faith, or instead there was impropriety in the decision). 133. Katundi v Hay [1940] St R Qd 39. 134. Chapman v Chapman [1954] AC 429 at 452–3 per Lord Morton; Rubin v McNamara [1969] QWN 18. 135. Re Estate Gowing (2014) 17 BPR 32,763; [2014] NSWSC 247; BC201401563 at [73] per Lindsay J (noting that experience has demonstrated that ‘the obligations of a fiduciary can be so onerous as to require a grant of relief from the burden they represent’ and ‘an allowance of remuneration may be dictated by necessity in that, unless an entitlement to remuneration is allowed or held open as a possibility, prospective executors, administrators or trustees might decline to serve in those offices’). 136. See 14.13–14.17. 137. As to administration actions, see 12.46. 138. Re Application of Macedonian Orthodox Community Church St Petka Inc (No 2) (2005) 63 NSWLR 441; [2005] NSWSC 558; BC200504122 at [20] per Palmer J. 139. ACT CPR r 35(2)(d) (see also ACT s 97A, a specific provision entitling the Public Trustee to take the opinion or obtain the direction of the court on any question in the course of his or her duties); NSW UCPR r 54.3; NT RSC r 54.02; SA SCCR r 206 (see Yule v Irwin (No 2) [2016] SASC 178; BC201609986 at [127] per Nicholson J); Tas RSC r 604; Vic RSC r 54.02; WA RSC O 58 r 2. 140. Supreme Court Rules 1900 (Qld) O 4 r 12 (repealed). 141. Qld s 6(1). 142. ACT s 63; NSW s 63; Qld ss 96, 97; SA s 91; WA ss 92, 95. See Dal Pont, pp 716–21; Jacobs, pp 532–5. 143. Namely SA s 69 (which also makes specific reference to the Public Trustee). 144. Tas s 64. 145. WA s 45(1). 146. Pacella v Sherborne [2009] WASC 58; BC200901659 (where Sanderson M noted that WA s 45 is, in broad and general terms, referring to ‘any question arising in respect of any will or administration’,

147.

148.

149. 150. 151.

152. 153. 154.

155. 156.

157. 158. 159. 160.

161.

which ‘clearly shows the legislature was intending to provide the court with the widest possible discretion to deal with problems which arise in relation to the estate’: at [12]). See also Manktelow v Public Trustee (2001) 25 WAR 126; [2001] WASC 290; BC200106536 (where Hasluck J held that the deceased’s de facto spouse had standing to seek orders pursuant to WA s 45 as to his burial arrangements). Re Wynn (deceased) [1952] Ch 271 (where Danckwerts J held that a clause in a will that purported to make the personal representatives’ determinations conclusive and binding was void and of no effect because ‘it is both repugnant to the benefits which are conferred by the will upon the beneficiaries; and also because it is contrary to public policy as being an attempt to oust the jurisdiction of the court to construe and control the construction and administration of a testator’s will and estate’: at 278–9). An executor may, for instance, seek the court’s advice as to the accuracy of his or her interpretation of the will (see, for example, Re Estate of Jensen (deceased) [2011] SASC 243; BC201109987) or as to whether or not to sell certain estate property (see, for example, Cody v Cody [2013] VSC 274; BC201311879). [1971] VR 612 at 615. [1893] 1 Ch 547. Re Beddoe [1893] 1 Ch 547 at 562. See also Gray v Guardian Trust Australia Ltd [2003] NSWSC 704; BC200304468 at [9] per Austin J; Salmi v Sinivuori [2008] QSC 321; BC200810933 at [12], [13] per Lyons J. See 13.43. See 13.40–13.42. Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42; BC200807738 at [71], [72] per Gummow ACJ, Kirby, Hayne and Heydon JJ. Though these observations were made in the context of trustees of a charitable trust, they are equally applicable to personal representatives: see Tsaknis v Lilburne [2010] WASC 152; BC201004162 at [36]–[38] per E M Heenan J. Executor Trustee Australia Ltd v Blum (2007) 250 LSJS 452; [2007] SASC 329; BC200707758 at [2], [3] per Vanstone J. Re Atkinson (deceased) [1971] VR 612 at 616 per Gillard J; Salmi v Sinivuori [2008] QSC 321; BC200810933 at [16] per Lyons J (describing the court as acting essentially in an ‘administrative capacity’). IOOF Australia Trustees Ltd and the Trustee Act 1936 (1999) 205 LSJS 98 at 101–2; [1999] SASC 461; BC9907227 per Debelle J. Davidson v Cameron [2016] 2 Qd R 340; [2015] QSC 294; BC201510472 at [10] per Jackson J. See, for example, Re Public Trustee and Estate of T [1999] NSWSC 1027; BC9906887; Re Estate of Ferrari [1999] WASC 50; BC9903119. See, for example, Harrison v Mills [1976] 1 NSWLR 42 at 45 per Needham J; Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 at 440; BC9203940 per Sheller JA. See further Dal Pont, pp 720–1. Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42; BC200807738 at [56], [75] per Gummow ACJ, Kirby, Hayne and Heydon JJ (adding that there is only one jurisdictional bar to the employment of the Trustee Act jurisdiction, namely, the existence of some question respecting the management or administration of the trust property or a question respecting the interpretation of the trust instrument: at [58]).

162. 163. 164. 165.

166.

167. 168. 169.

170.

171.

172. 173. 174. 175. 176.

177. 178.

Tsaknis v Lilburne [2010] WASC 152; BC201004162 at [41] per E M Heenan J. ACT s 51; NSW s 57; NT s 82; SA s 47. See 13.34–13.38. Ex parte Garland (1803) 10 Ves 111 at 119; 32 ER 786 at 789 per Lord Eldon LC (‘the case of the executor is very hard. He becomes liable, as personally responsible, to the extent of all his own property’); Re Morgan (1881) 18 Ch D 93 at 99 per Fry J. Re Evans (1887) 34 Ch D 597 at 600 per Cotton LJ; Dowse v Gorton [1891] AC 190 at 198–9 per Lord Herschell. The entitlement to indemnity at general law is replicated by the trustee statutes in each jurisdiction: ACT s 59(4); NSW s 59(4); NT s 26; Qld s 72; SA s 35(2); Tas s 27(2); Vic s 36(2); WA s 71. See 10.43. See Dal Pont, pp 707–15; Jacobs, pp 510–24. Fraser v Murdoch (1881) 6 App Cas 855 at 867 per Lord Blackburn; Dowse v Gorton [1891] AC 190 at 203–4 per Lord Macnaghten. See, for example, Vacuum Oil Company Pty Ltd v Wiltshire (1945) 72 CLR 319; BC4600010 (where the executor incurred expenses in carrying on the business of the testator: see 13.22–13.25); Dimos v Skaftouros (2004) 9 VR 584; [2004] VSCA 141; BC200405875 at [165] per Dodds-Streeton AJA (who, having remarked that ‘[t]he indemnity depends on the conclusion that the costs were properly incurred in the administration of the estate’, refused to allow an executor, who resisted the (successful) application for his removal, to be indemnified out of the estate for the costs of the proceeding). O’Brien v McCormick [2005] NSWSC 619; BC200504652 at [56] per Campbell J (referring to various cases dealing with the trustee’s right to indemnity in this context, including the leading case of Re Beddoe [1893] 1 Ch 547). Trustee Act 1925 (ACT) s 86(1); Trustee Act 1925 (NSW) s 86(1); Trustee Act 1893 (NT) s 50; Trusts Act 1973 (Qld) s 77; Trustee Act 1936 (SA) s 57; Trustee Act 1898 (Tas) s 53; Trustee Act 1958 (Vic) s 68(1); Trustees Act 1962 (WA) s 76. ACT and NSW s 86(2) have no counterpart in other jurisdictions. They provide that ‘subsection (1) shall be deemed to empower the Court to impound all or any part of the interest of any beneficiary who receives any pecuniary benefit from the breach of trust’ (emphasis supplied). These provisions appear to confine the right to impound to cases where the beneficiary has received a pecuniary benefit. If this is so, the sections have a narrower operation than the general law in these jurisdictions, which is opposed to the wide interpretation of the statutory right to impound exercised in the United Kingdom. Bolton v Curre [1895] 1 Ch 544 at 549 per Smith LJ. See also Chillingworth v Chambers [1896] 1 Ch 685 at 707–9 per Smith LJ. See 12.56. This is pursuant to what is known as ‘accessory liability’, wherein persons, who, though not being fiduciaries, with knowledge assist a fiduciary in a fiduciary breach, are candidates for personal liability: see Dal Pont, pp 1173–81. An exception related to executors dealing with estates in the East Indies and the West Indies, in which cases commission was allowed because it was the practice in those countries to do so. Re Worthington (deceased) [1954] 1 All ER 677 at 679 per Upjohn J. See, for example, Forster v Ridley (1864) 4 De GJ & S 452; 46 ER 993 (allowance granted to executors and trustees for the trouble and loss of time in managing the testator’s leasehold property and carrying on his business for 2 years). Robinson v Pett (1734) 3 P Wms 249; 24 ER 1049. Nissen v Grunden (1912) 14 CLR 297 at 312; BC1200054 per Isaacs J; Re Whitehead (deceased) [1958] VR 143 at 145 per Herring CJ and Dean J; In the Will of Shannon [1977] 1 NSWLR 210 at 214–15

179. 180.

181. 182. 183. 184. 185. 186. 187. 188.

189. 190. 191. 192. 193.

194. 195. 196.

197.

per Holland J; Re Lack [1983] 2 Qd R 613 at 613–14 per McPherson J; Re Will of McClung [2006] VSC 209; BC200604264 at [28] per Evans M; Re Estate Ford [2016] NSWSC 6; BC201600178 at [50] per Lindsay J. Re Estate Gowing (2014) 17 BPR 32,763; [2014] NSWSC 247; BC201401563 at [19] per Lindsay J. Nissen v Grunden (1912) 14 CLR 297 at 314; BC1200054 per Isaacs J. See also at 304–5 per Griffith CJ (‘The Crown, therefore, in creating Courts of Justice in Australia, introduced definitely the system that executors were to be paid for their trouble in administering estates if the court thought fit, the rule in England being that they should not be paid for that trouble’); In the Will of Shannon [1977] 1 NSWLR 210 at 214–15 per Holland J; Re Lack [1983] 2 Qd R 613 at 614 per McPherson J. ACT s 70; SA s 70(1) (as to applications for commission, see SA PR r 92). NSW s 86(1); NT s 102(1); Tas s 64; Vic s 65(1) (as to applications for commission under Vic s 65, see Vic 2014 O 10). Qld s 68 (see also Qld UCPR r 646(1)). Trustees Act 1962 (WA) s 98(1), (2). ‘Trustee’, in this context, includes a personal representative: Trustees Act 1962 (WA) s 6(1). Re Estate Ford [2016] NSWSC 6; BC201600178 at [49] per Lindsay J. Atkins v Godfrey [2006] WASC 83; BC200603485 at [17] per Le Miere J. See 13.49–13.73. In the Will of Oddie [1976] 1 NSWLR 371 at 374 per Helsham J; Re Estate of Wilson (deceased) (1987) 11 NSWLR 493 at 495 per Needham J; Estate of Scott (deceased) (1988) 21 NSWLR 112 at 116 per Needham J; Re Estate Gowing (2014) 17 BPR 32,763; [2014] NSWSC 247; BC201401563 at [67] per Lindsay J; Re Estate Ford [2016] NSWSC 6; BC201600178 at [53] per Lindsay J. As making a claim for commission is not itself an executorial function, it is inappropriate for an executor to utilise estate funds to make the said application (absent the beneficiaries’ consent or a court order), although depending on the circumstances and outcome, it may be that (some of) those costs may ultimately be indemnified from the estate according to the exercise of the court’s costs discretion: Re Estate of Gray [2010] VSC 173 at [34] per Daly AsJ; Richards v Richards [2015] VSC 335; BC201506513 at [109]–[112] per McMillan J. See 13.74, 13.75 (Public Trustee), 13.76–13.78 (trustee company). See 13.46, 13.47. As to remuneration payable pursuant to an agreement between executor and beneficiaries, see 13.48. See 13.66–13.69. In an initiative to formalise this understanding, the proposed s 49A of the Wills Act 1997 (Vic), to be inserted by the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Bill 2016 (Vic), declares a remuneration clause in a will to be void unless ‘the testator gave written informed consent to [its] inclusion’ and ‘that written informed consent was given by the testator before the will was executed’. In the Will of Shannon [1977] 1 NSWLR 210 at 215–17 per Holland J. Dale v Inland Revenue Commissioners [1954] AC 11 at 27–8 per Lord Normand, at 31 per Lord Oaksey, at 32 per Lord Morton, at 34 per Lord Cohen. Re Spedding (deceased) [1966] NZLR 447 at 465–6 per McCarthy J; Re Orwell’s Will Trusts [1982] 3 All ER 177 at 179–80 per Vinelott J; Chick v Grosfeld (No 3) [2012] NSWSC 1536; BC201209886 at [14]–[26] per White J. (1990) 22 NSWLR 502 at 514 (therefore ruling that the solicitor-executor was not entitled to charge for work done in administering the estate that did not necessarily require the services of a solicitor, but could charge ‘usual professional charges’ for the usual conveyancing services of a solicitor in

198. 199.

200. 201. 202. 203. 204. 205. 206. 207. 208. 209. 210. 211. 212. 213. 214. 215. 216. 217. 218. 219. 220. 221. 222. 223. 224. 225. 226. 227. 228.

connection with the sale of assets of the estate comprising real property, and in dealing with claims of a legal nature brought against the estate: at 515). As to the distinction between ‘professional’ and ‘non-professional’ services, see 13.72, 13.73. In the Will of Kerrigan (1935) 35 SR (NSW) 242 at 245 per Jordan CJ; Chick v Grosfeld (No 3) [2012] NSWSC 1536; BC201209886 at [38] per White J (noting the ‘general rule’ that ‘an executor is put to his election between claiming remuneration for executorial work pursuant to a charging clause in a will and claiming commission pursuant to [NSW s 86], and that once that election is made it is binding’). See 13.55–13.60. See 13.61. Re Darling [1925] SASR 262 at 266 per Angas Parsons J. Walker v D’Alessandro [2010] VSC 15; BC201000287 at [27]–[29] per T Forrest J. Walker v D’Alessandro [2010] VSC 15; BC201000287 at [30] per T Forrest J. See generally 13.49–13.74. Re Sherwood (1840) 3 Beav 338; 49 ER 133; Legal Services Board v Delahunty [2011] VSC 453; BC201107056 at [28] per Kyrou J. In the Will of Moore (deceased) (1896) 17 LR (NSW) B & P 78. In the Will of Forrest [1913] VLR 425. As to the denial of commission, or reduction of what would otherwise be awarded, in the event of default by the personal representative, see 13.62–13.65. Kirkpatrick v Kavulak [2005] QSC 282; BC200507712 at [13] per McMurdo J. Re Will and Estate of Foster (deceased) [2012] VSC 315; BC201205740 at [27] per Daly AsJ. See 13.44. Re Estate Gowing (2014) 17 BPR 32,763; [2014] NSWSC 247; BC201401563 at [26], [45]–[49] per Lindsay J; Estate Ford [2016] NSWSC 6; BC201600178 at [56] per Lindsay J. See 13.52. See 13.72, 13.73. Re Estate of Stone [2003] VSC 298; BC200304686 at [27] per Smith J; Atkins v Godfrey [2006] WASC 83; BC200603485 at [79]–[88] per Le Miere J. Re Estate of Ghidella [2005] QSC 106; BC200502750 at [13] per Jones J. See generally Re Estate Gowing (2014) 17 BPR 32,763; [2014] NSWSC 247; BC201401563 at [76]– [94] per Lindsay J. For instance, pursuant to a clause in the testator’s will allowing an executor (here typically a solicitor) to charge his or her professional fees for executorial services: see 13.46, 13.47. See 13.48. [2010] NSWSC 48; BC201000378. As to the principles applicable on such a review, see In the Will of Sheppard [1972] 2 NSWLR 714 at 716–17 per Helsham J. Hawkins v Barkley-Brown [2010] NSWSC 48; BC201000378 at [68]. Hawkins v Barkley-Brown [2010] NSWSC 48; BC201000378 at [72]. Hawkins v Barkley-Brown [2010] NSWSC 48; BC201000378 at [75]. Hawkins v Barkley-Brown [2010] NSWSC 48; BC201000378 at [70]. Re Estate of Lindsay [2004] NSWSC 575; BC200404107 at [15] per Campbell J; Re Estate of Ghidella [2005] QSC 106; BC200502750. Hawkins v Barkley-Brown [2010] NSWSC 48; BC201000378 at [73], referring to Re Allan Mclean (deceased) (1911) 31 NZLR 139 at 144 per Denniston J. See also Luck v Fogarty (SC(Tas), Zeeman J,

229. 230.

231.

232. 233.

234. 235. 236. 237.

238. 239. 240.

241. 242. 243. 244. 245. 246. 247. 248. 249.

22 March 1996, unreported) BC9600754 at 2; Re Estate of Stone [2003] VSC 298; BC200304686 at [30]–[34] per Smith J. Hawkins v Barkley-Brown [2010] NSWSC 48; BC201000378 at [33]. Hawkins v Barkley-Brown [2010] NSWSC 48; BC201000378 at [35]. See also Re Estate of Ghidella [2005] QSC 106; BC200502750 at [13] per Jones J (referring to ‘a need for moderation in circumstances where the value of the estate is large’). Hawkins v Barkley-Brown [2010] NSWSC 48; BC201000378 at [36]. Both Slattery J in Hawkins and Helsham J in In the Will of Sheppard [1972] 2 NSWLR 714 at 721 saw force, in this context, in the following remarks of Buchanan J in Re Barr Smith [1920] SALR 381 at 388: ‘Under any percentage scale … the allowance in respect of an abnormally large estate, although in itself considerable, will, in relation to the size of the estate, constitute a lighter charge than in the case of a small estate. Nor is it to be overlooked that in estates of exceptional magnitude one finds the testator or settlor as a rule selecting as trustees persons accustomed to large affairs, possessed of more than ordinary experience and acumen, who may well earn, with advantage to their trust estate, what at first blush might have the appearance of being an extravagant reward’. In the Will of Sheppard [1972] 2 NSWLR 714 at 720–1 per Helsham J. Buckingham v Buckingham [2016] VSC 757; BC201610591 at [56] per McMillan J (who on the facts denied any claim for commission for ‘pains and trouble’ to the executor because ‘most of the administration work has been done by professionals who have charged fees’ (at [92]), although her Honour was also no doubt influenced by the significant losses caused by the executor in administering the estate, significant difficulties caused by him as a result of failing to account properly and significant claims he relied on that did not relate to the administration of the estate). See 13.71. See, for example, In the Estate of Hine (1878) 4 VLR (IP & M) 64; In the Estate of Swan (1881) 7 VLR (IP & M) 49; In the Will and Codicil of Short (deceased) (1885) 11 VLR 634. (1912) 14 CLR 297 at 307–8; BC1200054 per Griffith CJ. See, for example, Re Moore (deceased) [1956] VLR 132; Re Gambling (deceased) [1966] SASR 134; Re Duke of Norfolk Settlements Trusts [1982] Ch 61; Re White (2003) 7 VR 219; [2003] VSC 433; BC200306790. In the Estate of Burdekin (1901) 1 SR (NSW) B & P 1 at 5 per Walker J. In the Will of Morrison (1933) 50 WN (NSW) 88 at 89 per Harvey J. [1907] VLR 546. The ruling was rendered against the backdrop of divergent case law under the preceding legislation: see Re White (2003) 7 VR 219; [2003] VSC 433; BC200306790 at [28]–[33] per Kellam J. Then found in s 26 of the Administration and Probate Act 1890 (Vic) (repealed), in terms equivalent to those now found in Vic s 65: see 13.44. Winter Irving v Winter [1907] VLR 546 at 564 per Madden CJ. See 13.67. See In the Will of Oddie [1976] 1 NSWLR 371 at 375 per Helsham J. See 13.68. (1919) 15 Tas LR 74 at 76, 77. Probate Act 1893 (Tas) s 9 (repealed). Tas s 64, as to which see 13.34. Re Medwin (1919) 15 Tas LR 74 at 77. Although their Honours referred, in reaching this conclusion, to the terms of s 58 of the Trustee Act 1898 (Tas), which provide that it is lawful for the court to allow just and reasonable compensation to a trustee only in ‘any case in which there is not in the instrument creating the trust … any provision for remunerating a trustee’ — which apply to

250. 251.

252. 253. 254.

255. 256. 257. 258. 259. 260. 261. 262. 263.

264. 265. 266. 267.

268. 269. 270. 271. 272. 273. 274. 275.

executors (Trustee Act 1898 (Tas) s 4) and are, on a narrow construction, able to support the outcome espoused by the court — they made it explicit that they would have reached this conclusion independent of the provisions of the Trustee Act: at 76. [1964] Tas SR 309 at 312–13 per Burbury CJ. Will of Taylor (1867) 1 SALR 13 (where it was held that a legacy given to executors would not prevent the court from awarding compensation for their pains and trouble). Subsequent case law has confirmed that the court has jurisdiction, in a proper case, to award trustees commission in excess of the amount nominated in the will: Re Johnson [1924] SASR 31; Re Salom [1929] SASR 387. Re Proctor (1885) NZLR 3 SC 126; Re Chavannes (1898) 16 NZLR 639; Re Langlands (1901) 21 NZLR 100; Re Sir Douglas McLean (deceased) [1934] NZLR 1074; Re McCormack (deceased) [1938] NZLR 777. See Will of Stratton (deceased) [1981] WAR 58. See Re Duke of Norfolk’s Settlement Trusts [1982] Ch 61 at 79 per Fox LJ (‘it seems to me that if the court has jurisdiction, as it has, upon the appointment of a trustee to authorise remuneration though no such power exists in the trust instrument, there is no logical reason why the court should not have power to increase the remuneration given by the instrument’), at 80 per Brightman LJ. (1912) 31 NZLR 139 at 141–2, also delivering the judgment of Edwards and Sim JJ. (2003) 7 VR 219; [2003] VSC 433; BC200306790 at [45]. Re White (2003) 7 VR 219; [2003] VSC 433; BC200306790 at [55]. Winter Irving v Winter [1907] VLR 546 at 566 (emphasis supplied). [1934] VLR 307. Re Dunne [1934] VLR 307 at 309. (2003) 7 VR 219; [2003] VSC 433; BC200306790. Re White (2003) 7 VR 219; [2003] VSC 433; BC200306790 at [61]. Re White (2003) 7 VR 219; [2003] VSC 433; BC200306790 at [68]. The change to which his Honour referred was the abandonment of the ‘statutory list’ approach to authorised trustee investments in favour of a broad statutory discretion: see Dal Pont, pp 685–7; Jacobs, pp 390–5. Re White (2003) 7 VR 219; [2003] VSC 433; BC200306790 at [64]. Re White (2003) 7 VR 219; [2003] VSC 433; BC200306790 at [62]. Although not expressed in terms of exceptional circumstances, Burbury CJ’s decision in Re Stewart [1964] Tas SR 309 (see 13.56) can can be explained in this fashion. NSW s 86A(1). See, for example, Hughes v Estate of Weedon (SC(NSW), Hodgson J, 16 December 1994, unreported) (where his Honour reduced the 5 per cent testamentary entitlement to commission on corpus to 2.5 per cent on the ground that it was excessive, being influenced by the fact that the executor-solicitor had drafted the will and that the usual rate allowed on capital for commission to ordinary executors was between 0.5 and 2 per cent). QLRC, Report 65, Vol 3, pp 56–7. VLRC, 2013, recommendation 57, heralded for implementation pursuant to the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Bill 2016 (Vic) (which proposes to enact as a new Vic s 65A (‘reduction of excessive commission or fees’)). In the Will of Sherringham (1901) 1 SR (NSW) 48 at 49 per Walker J. See Atkins v Godfrey [2006] WASC 83; BC200603485 at [19]–[29] per Le Miere J; Estate of Shave (2012) 10 ASTLR 430; [2012] NSWSC 1428; BC201209126 at [91] per Windeyer AJ. (1911) 11 SR (NSW) 21 at 23. (SC(NSW), Santow J, 10 October 1997, unreported) BC9705747. Jones v Estate of Farley (SC(NSW), Santow J, 10 October 1997, unreported) BC9705747 at 37–8. Jones v Estate of Farley (SC(NSW), Santow J, 10 October 1997, unreported) BC9705747 at 38. Cf

276. 277. 278. 279.

280. 281. 282. 283.

284.

285. 286.

287. 288. 289. 290. 291. 292. 293. 294.

Finlay v Tucker [2015] NSWSC 560; BC201503811 (where Slattery J, though satisfied that the executor had made genuine efforts over many years to grapple with the difficulties generated by a cash-poor estate with a life tenant with ongoing personal needs, and gave much of his time to administering the estate, nonetheless refused commission because the executor had breached trust, trespassed upon estate property to the disadvantage of the estate’s beneficiaries, and made unsupported claims that occupied a great deal of the court’s time in the proceedings: at [113]). Jones v Estate of Farley (SC(NSW), Santow J, 10 October 1997, unreported) BC9705747 at 38. [2009] SASC 197; BC200905862. As to applications for advice and directions from the court, see 13.34–13.39. Chiro v Linton (No 2) [2009] SASC 197; BC200905862 at [21]. See also Atkins v Godfrey [2006] WASC 83; BC200603485 (where Le Miere J reduced the commission which the executor would otherwise have been awarded to take into account his failure to scrutinise legal fees charged by solicitors for the estate and to ensure that the estate was finalised earlier). NSW s 86(2); NT s 102(2); SA s 70(2)(a) (refers only to administrators). SA s 70(2)(b) (refers only to administrators). Stackpoole v Howell (1803) 13 Ves 417 at 421; 33 ER 350 at 353. See also Re Thorley [1891] 2 Ch 613 at 625 per Lindley LJ, at 626 per Bowen LJ, at 628–9 per Kay LJ; Re White [1898] 2 Ch 217. See the discussion of Cotton LJ in Re Appleton (1885) 29 Ch D 893 at 895–7. Cf Burgess v Burgess (1844) 1 Coll 367; 63 ER 458 (legacy given to executors as a mark of the testator’s respect for them held not to be conditional on acceptance of executorial office); Compton v Bloxham (1845) 2 Coll 201; 63 ER 699 (executor-legatee whom the testator repeatedly described as his brother allowed to retain a legacy whilst disclaiming the executorial role); In the Matter of Denby (1861) 3 De GF & J 350; 45 ER 914 (legacy expressed to be ‘to my friend’ held not to be conditional on acceptance of the office of executor). See further Williams, Mortimer and Sunnucks, pp 982–4. See, for example, In the Will of Blake (1878) 1 SCR NS (NSW) 253; Re Fullerton’s Will (1885) 6 LR (NSW) P & D 15; In the Will of Pauton (1909) 26 WN (NSW) 51; In the Will of Steele (1915) 15 SR (NSW) 247; In the Will of Wirth (1930) 47 WN (NSW) 188. Cf the general discussion of the topic by Helsham J in In the Will of Oddie [1976] 1 NSWLR 371 at 374–5. Winter Irving v Winter [1907] VLR 546 at 554–5 per Madden CJ. In the Will of Oddie [1976] 1 NSWLR 371 at 375 per Helsham J (although his Honour (at 376) nonetheless felt bound to recognise the existence of the distinction at least until the New South Wales Court of Appeal was able to consider the matter; to date it has not). Re Lack [1983] 2 Qd R 613 at 614 per McPherson J. In the Estate of Burdekin (1901) 1 SR (NSW) B & P 1; In the Will of Wheelihan (1912) 29 WN (NSW) 98. Winter Irving v Winter [1907] VLR 546. In the Will of Morrison (1933) 50 WN (NSW) 88. Re Fullerton’s Will (1885) 6 LR (NSW) P & M 15. [1983] 2 Qd R 613. Re Lack [1983] 2 Qd R 613 at 615. Re Lack [1983] 2 Qd R 613 at 617. In support of this conclusion, his Honour (at 617) also referred to s 101(1) of the Trusts Act 1973 (Qld) — pursuant to which ‘[t]he court may, in any case in which the circumstances appear to it so to justify, authorise any person to charge such remuneration for the person’s services as trustee as the court may think fit’ — which applies to executors (see Trusts Act 1973 (Qld) s 5(1)) and is not excluded by the expression of a contrary intention in the instrument creating the trust (Trusts Act 1973 (Qld) s 79). Yet given the terms of Qld s 68, which

295.

296.

297.

298. 299.

300. 301. 302. 303. 304. 305.

306.

307.

308.

directly target the courts’ jurisdiction to order commission in favour of personal representatives (see 13.44), it seems that s 101(1) of the Trusts Act 1973 (Qld) is superfluous in this context. See, for example, Konui v Tasi [2015] QSC 74; BC201502366 (where Boddice J acceded to an application for commission from an executor who received a substantial legacy because her executorial role had been arduous: at [69], [70]). Re Will of Gibbon (deceased) (1889) 3 QLJ 120; Will of Steele (1915) 15 SR (NSW) 247; Re Murphy (deceased) [1928] St R Qd 1 (FC); Will of Kerrigan (1935) 35 SR (NSW) 242. Cf Re Medwin (1919) 15 Tas LR 74, discussed at 13.56. Re Murphy [1928] St R Qd 1 at 9 per Macnaughton J (FC) (where the will conferred on the trustees an entitlement to a small annuity out of the estate, payable ‘so long as they or any of them shall respectively so act, which said sum shall be in lieu of and in substitution for any remuneration to which the said [trustees] may be entitled for his or their services in the execution of the trusts of this my will, or as executor or executors hereof’; the court concluded that no further remuneration should be allowed). See 13.55–13.60. In the Will of Holmes (1889) 15 VLR 734; Re Adams (1905) 24 NZLR 892; Re Edmondson (1907) 26 NZLR 1404; Re Carter (deceased) [1932] NZLR 63; Estate of Shave (2012) 10 ASTLR 430; [2012] NSWSC 1428; BC201209126 at [90] per Windeyer AJ; Richards v Richards [2015] VSC 335; BC201506513 at [27] per McMillan J. SA s 70(1). Trustees Act 1962 (WA) s 98(1). Trustees Act 1962 (WA) s 98(4). [1929] VLR 305. [1929] SASR 1 at 4–5. Although Napier J could have relied on the relevant South Australian provision mentioned in the text, his decision was made independent of that provision. Condon v Miller [1981] VR 465 at 467–8 per King J (who directed the master to report on what was a just and reasonable allowance for the executors as a whole and on what was a just and reasonable allowance for the non-claiming executor, to deduct the latter sum from the former and award the difference to the applicants; the order was to be subject to an undertaking by the non-claiming executor that he would not, neither would his personal representatives, claim commission or a share of commission). (1987) 11 NSWLR 493 at 496. See also Re Estate of Dibbs [2006] NSWSC 1277; BC200609705 at [13] per Windeyer J (where commission was allowed at 0.25 per cent on the value of a unit to one executor for the work he did in respect of the transfer of the unit but not to the other executors who were the beneficiaries of the transfer). The National Committee for Uniform Succession Laws has recommended that model legislation contain a provision to this effect: QLRC, Report 65, Vol 3, pp 47–8. Hawkins v Barkley-Brown [2010] NSWSC 48; BC201000378 at [50] per Slattery J (adding that ‘[t]he fact that the executor is involved supervising the professionals involved in the litigation to maintain the estate’s interests in the litigation is a relevant consideration in assessing the proper percentage commission, provided the litigation is a necessary step in the administration of the estate’). See, for example, Re Estate of Instone (SC(NSW), Powell J, 23 August 1993, unreported) BC9303622; Re Estate of Ghidella [2005] QSC 106; BC200502750 (where, because the receipt and dispatch of money into and out of the estate were largely left to the retained solicitors, Jones J was not prepared to award the maximum (5 per cent) commission, but at the same time did not deny the executors commission; his Honour looked at their actions overall including their actions in the supervision and maintenance of estate property, which necessitated activity and care on their part,

309. 310. 311. 312. 313.

314. 315. 316.

317. 318. 319. 320. 321. 322. 323. 324. 325. 326. 327. 328.

and used this to guide his selection of the appropriate percentage). Cf Macartney v Macartney [1909] VLR 183 (where the range of administration work done by the trustees led Hodges J to uphold the maximum (5 per cent) commission even though the trustees had employed others to undertake the work of rent collection). Re Barber (1887) 34 Ch D 77 at 80–1 per Chitty J; Re Corsellis (1887) 34 Ch D 675 at 681 per Cotton LJ, at 688–9 per Lopes LJ; Re Gambling (deceased) [1966] SASR 134 at 135–6 per Walters AJ. Hawkins v Barkley-Brown [2010] NSWSC 48; BC201000378 at [48] per Slattery J; Re Will and Estate of Foster (deceased) [2012] VSC 315; BC201205740 at [28] per Daly AsJ. [1972] 2 NSWLR 714 at 720 (adding that ‘professional work properly charged for and allowed will not afford any reason for reducing or cutting down that which is to be allowed by way of commission for the executor’s pains and trouble in performing his duties as, executor’). In the Will of Sheppard [1972] 2 NSWLR 714 at 720. Re Smith (1916) 16 SR (NSW) 422; In the Will of Douglas (deceased) (1951) 51 SR (NSW) 282. To this end, the trustee legislation in Queensland and Western Australia, which in this context also applies to executors (see Trusts Act 1973 (Qld) s 5(1); Trustees Act 1962 (WA) s 6(1)), provides that in the absence of a direction to the contrary in the will, an executor who is a person engaged in any profession or business for whom no benefit or remuneration is provided in the will is entitled to charge and be paid out of the trust property all usual professional or business charges for business transacted, time expended, and acts done in connection with the trust, including acts that a trustee not being in any profession or business could have done personally; and, on any application to the court for commission, the court may take into account any charges that have been so paid out of the trust property: Trusts Act 1973 (Qld) s 101(2); Trustees Act 1962 (WA) s 98(5). It has been observed that, outside of a dedicated provision in the will to this effect, were it not for these subsections, ‘a professional trustee or her firm would be precluded from charging fees for professional advice or services rendered in the course of administration’: O’Brien v Warburton [2012] WASC 82; BC201201177 at [215] per E M Heenan J. Re Estate of Lindsay [2004] NSWSC 575; BC200404107 at [8], [9] per Campbell J. Re Craig (1952) 52 SR (NSW) 265; Re Whitehead [1958] VR 143. Public Trustee and Guardian Act 1985 (ACT) s 28; NSW Trustee and Guardian Act 2009 (NSW) s 111; Public Trustee Act 1979 (NT) s 74; Public Trustee Act 1978 (Qld) s 17; Public Trustee Act 1995 (SA) s 45; Public Trustee Act 1930 (Tas) s 11; State Trustees (State Owned Company) Act 1994 (Vic) s 13; Public Trustee Act 1941 (WA) ss 38A, 38B. MacDonald v Public Trustee [2010] NSWSC 684; BC201004358 at [88] per McLaughlin AsJ. Public Trustee and Guardian Act 1985 (ACT) ss 28(1), 75; Public Trustee and Guardian (Fees) Determination 2016 (No 2) (ACT). NSW Trustee and Guardian Act 2009 (NSW) s 111(2); NSW Trustee and Guardian Regulation 2008 (NSW) Pt 2; Public Trustee Act 1930 (Tas) s 11(1); Public Trustee Regulations 2009 (Tas) reg 6 (‘Maximum fees, commissions, remunerations and charges’). Public Trustee Act 1979 (NT) s 74(1), (2). See Public Trustee Regulations 2010 (SA). Public Trustee Act 1995 (SA) s 45(1). Public Trustee Act 1995 (SA) s 45(2). Public Trustee Act 1978 (Qld) s 17(1). Public Trustee Act 1978 (Qld) s 17(3). Public Trustee Act 1978 (Qld) s 17(4). State Trustees (State Owned Company) Act 1994 (Vic) s 13(1). See Public Trustee Act 1941 (WA) s 6B (which envisages that the Minister and the Public Trustee

329. 330. 331. 332. 333.

334. 335. 336. 337. 338.

339. 340. 341. 342. 343.

344. 345. 346. 347.

are to enter into a written agreement for each 12-month period in relation to matters prescribed by the regulations, which may include the determination of a scale of fees under s 38A(1)). Public Trustee Act 1941 (WA) s 38A(1). Public Trustee Act 1941 (WA) s 38A(2). Public Trustee Act 1941 (WA) s 38B(1). See 10.6. See Trustee Companies Act 1947 (ACT) s 18 (repealed); Trustee Companies Act 1964 (NSW) s 18 (repealed); Companies (Trustees and Personal Representatives) Act 1981 (NT) s 27 (repealed); Trustee Companies Act 1968 (Qld) s 41 (repealed); Trustee Companies Act 1988 (SA) ss 9–11 (repealed); Trustee Companies Act 1953 (Tas) s 18; Trustee Companies Act 1984 (Vic) ss 21–24 (repealed); Trustee Companies Act 1987 (WA) s 18 (repealed). See Corporations Act 2001 (Cth) Ch 5D (see Pt 5D.3 in particular) (inserted by the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009 (Cth)). Corporations Act 2001 (Cth) s 601RAC(1), (2). Corporations Act 2001 (Cth) s 601TBA. Corporations Act 2001 (Cth) s 601TBB. Trustee Companies Act 1947 (ACT) s 18B(4) (repealed); Trustee Companies Act 1964 (NSW) s 18(3) (repealed); Companies (Trustees and Personal Representatives) Act 1981 (NT) s 27(7) (repealed); Trustee Companies Act 1968 (Qld) s 41(4) (repealed); Trustee Companies Act 1988 (SA) s 12 (repealed); Trustee Companies Act 1953 (Tas) s 18(5); Trustee Companies Act 1984 (Vic) s 21(3) (repealed). Corporations Act 2001 (Cth) s 601TEA(1). Corporations Act 2001 (Cth) s 601TEA(2). Corporations Act 2001 (Cth) s 601TEA(3). MacBean v Trustees Executors and Agency Co Ltd [1916] VLR 425 at 439–40 per Hood J. Roman Catholic Trusts Corporation for the Diocese of Melbourne v National Trustees Executors & Agency Co of Australasia Ltd (SC(Vic), Kaye J, 26 June 1981, unreported) (numerals in square brackets supplied). (1986) 6 NSWLR 341. Allen v Union-Fidelity Trustee Co of Australia Ltd (1986) 6 NSWLR 341 at 345 per Waddell CJ in Eq. Allen v Union-Fidelity Trustee Co of Australia Ltd (1986) 6 NSWLR 341 at 349. Estate of Scott (deceased) (1988) 21 NSWLR 112 at 117–18 per Needham J.

[page 483]

CHAPTER 14

Allocation and Distribution of Estate Priority in Payment of Debts Where estate solvent The territories, New South Wales, Tasmania and (formerly) Victoria Queensland Victoria The common law ‘old order’ — South Australia and Western Australia Exception where payments of debts on property mortgaged or charged Where estate insolvent Scheme in each jurisdiction except South Australia South Australian scheme Impact of the Bankruptcy Act 1966 (Cth) Personal representative’s ‘right of retainer’ and ‘right to prefer creditors’ At common law Impact of statute Application of doctrine of marshalling

14.2 14.3 14.3 14.5 14.6 14.7 14.8 14.10 14.10 14.11 14.12

Effect of Debtor Appointed as Executor Position at common law Position in equity Exception to equitable principle — the rule in Strong v Bird

14.19 14.19 14.20 14.21

Effect of Debtor Being a Legatee — the Rule in Cherry v Boultbee

14.24

No Distribution Required before Expiry of ‘Executor’s Year’ Concept of the ‘executor’s year’ At common law

14.27 14.27 14.27

14.13 14.13 14.14 14.18

Statutory reflections of ‘executor’s year’ concept South Australia — administrator to pay over money and deliver property to Public Trustee Translation of ‘executor’s year’ to accruing of interest on legacies The ‘default rule’ — correlation with expiry of the executor’s year Ouster of ‘default rule’ Exception to ‘default rule’ where pecuniary legacy to child without maintenance Rate of interest payable — at general law Rate of interest payable — under statute

14.28 14.29 14.31 14.32 14.34 14.37 14.38 14.40

[page 484] Distribution of Estate No preference between beneficiaries of same class Balancing beneficiaries’ interests where income accrues during administration Effect of overpayments to beneficiaries Distribution with notice of debts Scope for (interim) distributions prior to completion of administration Circumstances where duty to make interim distribution Circumstances where interim (maintenance) distribution allowed

14.41 14.41

Protection for Personal Representatives via Notices Backdrop and rationale Position in the territories and New South Wales Position in the remaining jurisdictions General thrust of legislation Queensland and Western Australia South Australia and Tasmania Victoria Preservation of claims under trustee legislation Statutory protection for personal representatives where will rectified

14.51 14.51 14.53 14.56 14.57 14.58 14.60 14.61 14.62 14.64

14.42 14.43 14.45 14.47 14.48 14.50

14.1 At the core of a personal representative’s role is to ‘get in’ the estate of the deceased. The estate ‘got in’ must first be applied to the payment of the deceased’s debts. The probate statutes identify, as assets for the payment of those debts, the person’s real and personal property — to the extent of his or her beneficial interest in it1 — and in most jurisdictions any property disposed by his or her will under a general power of appointment.2 This chapter accordingly identifies rules that apply in determining the priority in payment of debts, and how an executor should deal with debts he or she, or a legatee, owes to the estate. Once the debts in question are paid, the personal representative must distribute what remains in accordance with the terms of the will or the intestacy rules. The time frame for distribution, and rules that impact on the distribution, are also discussed in this chapter, which concludes with the statutory avenues whereby personal representatives can be protected, in making distributions, from outstanding claims against the estate. [page 485]

Priority in Payment of Debts 14.2 Whether pursuant to the probate legislation or the common law, in each jurisdiction a priority order applies in the payment of debts, which rests upon whether or not the estate is solvent. The common law recognises, moreover, an entitlement, within creditors of equal degree, of a personal representative to prefer payment of one creditor over another, and this includes where the personal representative is a creditor. These rights — termed the ‘right of retainer’ and ‘right to prefer creditors’ — are impacted by statute in most jurisdictions. The issue of priority can also arise out of creditors’ selection of estate assets to satisfy a debt, in which case the doctrine of marshalling serves to do justice as between beneficiaries with varying claims to those assets. Each of these matters is discussed below.

Where estate solvent The territories, New South Wales, Tasmania and (formerly)

Victoria 14.3 In the territories, New South Wales, Tasmania and (formerly) Victoria, the probate legislation states that, if the estate of a deceased person is sufficient for the payment of all the estate’s expenses, debts and liabilities (that is, the estate is solvent), the deceased’s real and personal property is, subject to any terms of the will3 and to any law about charges on property, applicable in the order prescribed for the payment of those expenses, debts and liabilities.4 The said order, in general terms, is the following:5 • property undisposed of by will, subject to retaining a fund sufficient to meet any pecuniary legacies; • property not specifically disposed of by will but included in a residuary gift, subject to retaining a fund sufficient to meet any pecuniary legacies that are not provided for out of the property so undisposed; • property specifically appropriated or disposed of by will for the payment of debts; • property charged with, or disposed of by will subject to a charge for, the payment of debts; • the fund (if any) kept to meet pecuniary legacies; • property specifically disposed of by will, rateably according to value; • in Tasmania and (formerly) Victoria, property appointed by will under a general power, rateably according to value. The omission of the last dot point in the territories and New South Wales statutory order does not preclude property so appointed under a general power from being utilised for the [page 486] payment of debts; another provision expressly declares that property of this kind are assets for the payment of debts.6 14.4 Importantly, the above provisions (and those in Queensland, noted below) are not aimed at setting the order in which an executor should sell assets for the purpose of paying debts and other testamentary expenses. They

do not, in any final way, purport to interfere with an executor’s discretion concerning what property should be sold for the purpose of paying the debts and testamentary expenses that must be discharged in the course of administration. But they provide a default rule — evident from the words ‘subject to the provisions of any Act as to charges on property of the deceased and to the provisions, if any, contained in the deceased person’s will’ — for how the burden of debts and testamentary expenses is to be borne amongst different types of beneficiaries.7 Speaking of corresponding provisions in England, Romer LJ saw nothing therein that ‘prevents or is intended to prevent executors from paying expenses, debts and liabilities out of the first assets coming to their hands available for the purpose’, adding that the above dot points ‘really only [deal] with the ultimate adjustment of the burden as between the parties becoming entitled to the testator’s estate’.8 Having said that, the statutory order may, where the default rule applies, influence the executor in the exercise of his or her discretion about which assets ought be sold for the purpose of administration.9

Queensland 14.5 The Queensland legislation prescribes a priority order for the payment of debts out of a solvent deceased estate via a schema unique to that jurisdiction that reduced the number of categories,10 namely: • property specifically appropriated, devised or bequeathed for the payment of debts, and property charged with, or devised or bequeathed subject to a charge for the payment of debts (‘class 1’); • property comprising the residuary estate,11 including property in respect of which any residuary disposition operates as the execution of a general power of appointment (‘class 2’);12 • property specifically devised or bequeathed, including property appointed under a general power of appointment and any legacy charged on property so devised bequeathed or appointed (‘class 3’); • donationes mortis causa13 (‘class 4’). [page 487]

Property within each class must be applied in the discharge of the debts and, where applicable, the payment of pecuniary legacies rateably according to value. Also, where a legacy is charged on a specific property, the legacy and the property must be applied rateably.14 The statutory order and the incidence of ratability may be varied by a contrary intention in the will;15 but a general direction, charge or trust for the payment of debts out of the testator’s (residuary) estate, or a gift of that estate after or subject to the payment of debts, is not sufficient to oust the statute for this purpose.16 The National Committee for Uniform Succession Laws has recommended that the model order should be set by statute, and follow the more rational and simpler approach adopted in the Queensland Act, albeit with the omission of donationes mortis causa.17 It considered provision for the latter as unnecessary in the context of a solvent estate, reasoning that if the debts cannot be paid without recourse to gifts of this kind — which vest in the donee rather than in the personal representative of the donor18 — the estate is properly to be regarded as insolvent. The order prescribed below, relating to insolvent estates,19 would therefore apply.20

Victoria 14.6 As a result of amending legislation with effect from 1 January 2015,21 the Victorian position now, in dealing with solvent estates, differentiates payment of debts from pecuniary legacies. As to the former, if no contrary intention appears in the will, the estate must be applied in the discharge of funeral, testamentary and administration expenses, debts and liabilities in the following order:22 • from property specifically appropriated, devised, bequeathed, directed to be sold (either by a specific or general description) or subject to a charge for the payment of a debt or liability of the estate; • from property comprising the residuary estate and in relation to which a disposition in the will operates as the exercise of a general power of appointment; • from property specifically devised or bequeathed, including property specifically appointed under a general power of appointment and any legacy charged on that property.

For this purpose, the property must be applied to discharging the debts and liabilities rateably according to value.23 If specific property is applied to satisfying a debt or liability and a legacy is charged thereon, the legacy and the property must be applied rateably according to the value [page 488] of the property, and the value of that property must be reduced by the amount of the legacy charged on it.24 Any pecuniary legacy25 must, again subject to any contrary intention in the will, be paid out of any property comprising the residuary estate or any property in relation to which a disposition in the will operates as the exercise of a general power of appointment.26 If the property in question is insufficient to pay any pecuniary legacy, the pecuniary legacy must abate proportionately.27

The common law ‘old order’ — South Australia and Western Australia 14.7 As the South Australian and Western Australian legislation makes no equivalent provision, the order in which assets are to be applied in these jurisdictions rests on the common law, which distinguishes personalty from realty in this context. Termed the ‘old order’, which can be varied by the terms of the will only if these terms are clear, it proceeds as follows:28 • personalty not specifically bequeathed, subject to retaining a fund sufficient to meet any pecuniary legacies; • realty specifically appropriated for or devised in trust for the payment of debts; • realty that descended to the heir(s); • realty devised and charged, and personalty specifically bequeathed and charged, with the payment of debts, which are to contribute rateably towards debts; • the fund, if any, retained to meet general pecuniary legacies; • legacies and realty devised specifically or by way of residue, not being at the same time charged with the payment of debts (although a mere general

direction to pay debts has the effect of moving these assets into the class represented by the fourth dot point above); • realty and personalty that did not belong to the deceased but over which he or she had a general power of appointment that was exercised by the will.

Exception where payments of debts on property mortgaged or charged 14.8 Statute other than in the Northern Territory makes explicit provision for the payment of debts on property of the deceased that is mortgaged or charged at the date of his or her death. This presents as an exception to the order of application of estate assets to pay debts otherwise prescribed.29 The legislation generally provides that, if a person dies possessed or entitled to an interest in property — which includes personal property other than in South Australia30 — that was charged with the payment of any debt (including a lien for unpaid purchase money), and has [page 489] not signified another intention,31 the interest so charged is, as between those to whom the property has been bequeathed, primarily liable for the payment of the debt.32 Every part of that interest, according to its value, bears a proportionate part of the charge of the whole. But nothing in the foregoing affects the right of a person entitled to the charge to secure its payment or satisfaction either out of the other assets of the deceased or otherwise.33 14.9 Another intention may emanate from a testamentary provision entitling the beneficiary to take the charged property ‘absolutely free and clear of any charge or deduction whatsoever’, with no specification of the assets out of which the debt is to be paid.34 Or it may derive from a testamentary direction that the mortgage be paid out of a specified fund,35 albeit that to the extent that the specified fund proves insufficient for payment of debts, the mortgaged property remains primarily liable.36 Indeed, it has been judicially remarked that all that is required is that ‘the debt shall be specifically described and identified in some way’.37 But the statute makes clear that a general

direction, or a charge, for the payment of debts out of the deceased’s residuary estate is not deemed to signify another intention for this purpose unless, other than in Queensland, the words used make express or necessary implied reference to the charge.38 The logic for this is that, as such a direction reflects only that required of a personal representative by law, it is unlikely to indicate that the testator turned his or her mind to ousting the order that would otherwise apply.39 The theory underlying the relevant statutory rule has been described as follows:40 [W]here a testator has charged property with the payment of a debt all he really owns is the property minus the value of the charge, and that when he disposes of that property by will he disposes of it together with the burden of the charge which he has placed on it. The testator may

[page 490] oust the operation of the subsection by will if he pleases and cast the burden of paying a debt charged on a property on another property or on the residuary estate, if he is so minded.

At its most basic, what this dictates, the National Committee for Uniform Succession Laws has observed, is that, if a testator devises property subject to a mortgage to A, and the residue of the estate to B, A is not entitled to have the mortgage discharged out of the residuary estate. The debt secured by the mortgage must be discharged out of the property that has been specifically devised. And because the section applies where property is subject to a lien for unpaid purchase money, it dictates that, if a testator enters into a contract to purchase a property but dies before completing the purchase and paying the purchase price, any unpaid money must be borne primarily by the property and not the residuary estate.41 The simplicity underscoring these provisions and their longstanding existence — wills are likely to have been drafted on the basis that the provisions apply (other than in the Northern Territory) — led the National Committee to recommend that equivalent provision be made in the model legislation.42

Where estate insolvent

Scheme in each jurisdiction except South Australia 14.10 In the event that the estate of a deceased person is insufficient for the payment in full of all the expenses, debts and liabilities payable from the estate (that is, the estate is insolvent), except in South Australia statute requires that, subject to the Bankruptcy Act 1966 (Cth),43 the deceased’s property be administered in line with set rules.44 The basic rule prioritises the funeral, testamentary and administration expenses. For other expenses the second rule broadly states that:45 The same rules must prevail and must be observed about the respective rights of secured and unsecured creditors and as to the valuation of annuities and future and contingent liabilities, respectively, and about the priorities of debts and liabilities that are in force at the death of the deceased person under the law of bankruptcy in relation to the assets of persons adjudged bankrupt.

The territories and New South Wales add a third rule, which states that, in the application of the rules, the date of the deceased’s death must be substituted for the date of the sequestration order. In Western Australia another rule is that a demand, in respect of which proceedings are maintainable against an estate, is provable in the administration of the estate, ‘notwithstanding [page 491] that it is a demand in the nature of unliquidated damages arising otherwise than by a contract, promise or breach of trust’.

South Australian scheme 14.11 A different statutory schema applies in South Australia. It entitles an executor, administrator or creditor of a deceased person to file with the registrar a declaration that he or she believes the deceased’s estate to be insolvent.46 A creditor must, on filing such a declaration once representation has been granted, serve a copy on the executor or administrator.47 If, conversely, representation is granted after the filing of a creditor’s declaration, the registrar must, on granting representation, issue to the executor or

administrator a copy of the declaration.48 Following the filing of the declaration by an executor or administrator, or the service or issue of a copy of the declaration filed by a creditor, the executor or administrator must administer the estate as to the payment of liabilities in the same manner so far as practicable as it would have been administered for the creditors’ benefit under a curial decree.49 The court may bar any action against the executor or administrator proceeding beyond judgment without its permission.50 In any such administration, whether by the court or the executor or administrator, the second rule extracted above applies.51

Impact of the Bankruptcy Act 1966 (Cth) 14.12 The Bankruptcy Act 1966 (Cth) enables an insolvent deceased estate to be administered in bankruptcy. A court order for administration of the insolvent estate under Pt XI of that Act — which can be made where a person served with a creditor’s petition dies prior to a sequestration order being made, or where a deceased estate is or becomes insolvent but bankruptcy proceedings were not commenced before the death — operates to divest the personal representative of all powers and duties, and transfers to the bankruptcy jurisdiction all control in respect of the divisible assets and their eventual distribution.52 Only in the latter scenarios noted above is there a potential overlap between the federal and state statutory regimes, in which case the former prevails if it is legitimately activated.53 This is not always the case. A requirement for presenting a petition under the Bankruptcy Act may be lacking,54 or it may be that no one opts to present a petition.

Personal representative’s ‘right of retainer’ and ‘right to prefer creditors’ At common law 14.13 The common law has long privileged an executor (or administrator) by conferring upon him or her ‘a right to retain for his own debt in preference to all other creditors of equal degree’ (a ‘right of retainer’) and a right among creditors of equal degree to pay one in preference to another (a ‘right to prefer creditors’).55 Thus the ‘right of retainer’ arises ‘where a debtor dies and makes

his creditor his executor’,56 whereas the ‘right to prefer creditors’ is [page 492] exercised as between creditors other than the executor. But in each case the rights apply only vis-à-vis creditors standing ‘in equal degree’, that is, of the same class. The rationale for the ‘right of retainer’ is that an executor with a claim against the testator’s estate should not lie in ‘a worse position than any other creditor, who by suing and obtaining a judgment against the executor could obtain priority, while the executor not being able to sue himself could not obtain priority’.57 So far as the reference to creditors ‘of equal degree’ is concerned, the order of degree of debts is the order in which they are entitled to priority of payment.58 The common law recognised a priority list of debts,59 albeit subject to statutory variation, so that if the debt of a personal representative ‘falls within the lower degree he can retain against all creditors of such degree, but against none in the higher degree’.60 The ‘right to prefer creditors’, on the other hand, is ostensibly directed to the more efficient administration of the estate. It promotes efficiency by allowing a personal representative to commence payment of debts at a time preceding the determination of the full liability of the estate, thereby receiving protection from claims of unpaid creditors if the estate ultimately proves to be insolvent. The right cannot, however, be exercised once an administration order has been made in relation to the estate.61 But an administration order does not interfere with the ‘right of retainer’ because that order ‘does not affect the legal priorities of creditors’.62

Impact of statute 14.14 In some jurisdictions the common law is impacted by statute. Queensland and Western Australia go furthest, abolishing both rights.63 But it adds that a personal representative who, in good faith and without a reason to believe that the deceased’s estate is insolvent, pays the debt of a creditor of the estate (including himself or herself) is not, if it later appears that the estate is

insolvent, liable to account to a creditor of the same degree as the paid creditor for the sum so paid.64 The same ensues for the payment of a debt in good faith by an administrator appointed solely by reason of being a creditor if he or she pays the debt of another person who is a creditor of the estate.65 The Victorian legislation, albeit less explicitly, is inconsistent with the continued availability of either right, as the relevant provision reads as follows:66 Every person who has obtained or obtains probate of the will or administration of the estate of a deceased person shall pay all and singular the just debts of such deceased person in due course of administration rateably and proportionably and according to the priority required by law but without preferring his own debt by reason of his having obtained such probate or administration.

[page 493] Tasmania instead statutorily recognises both rights, but adds that the right of retainer applies only to debts owing to the personal representative in his or her own right, whether solely or jointly with another person.67 An intermediate position is adopted by the South Australian legislation, as it limits both rights to where the executor or administrator has reasonable cause to believe, and does believe, that the assets of the estate are sufficient to satisfy its liabilities (that is, the estate is solvent).68 The court may set aside any payment of money or disposition of property made in contravention of the foregoing.69 However, this is expressed not to prevent an executor or administrator from exercising a right of retainer to the extent that it does not confer upon him or her a preference over other creditors of the estate.70 14.15 In the remaining jurisdictions no specific statutory reference is made to either the executor’s right of retainer or the right to prefer creditors. Instead the legislation in the territories and New South Wales states that, in the administration of a deceased estate, all the creditors of every description ‘must, despite anything to the contrary contained in any law, be treated as standing in equal degree and be paid accordingly out of the assets of the deceased person’71 (albeit expressed not to prejudice or affect any mortgage, lien, charge or other security that any creditor may hold or be entitled to for payment of a debt).72 Read in tandem with the following subsection, under which ‘no debt or liability of that person is entitled to any priority or preference only because

it is due to an executor or administrator of the estate’,73 the statutory language is amenable to an interpretation that ousts the right of retainer and the right to prefer creditors. 14.16 Yet there is English case law, decided in the context of an ostensibly equivalent legislative provision that has practically verbatim counterparts in South Australia and Victoria,74 that preserves these rights. The relevant Victorian subsection reads as follows: In the administration of the estate of any person no debt or liability of such person shall be entitled to any priority or preference by reason merely that the same is secured by or arises under a bond deed or other instrument under seal or is otherwise made or constituted a specialty debt, but all the creditors of such person as well specialty as simple contract shall be treated as standing in equal degree and be paid accordingly out of the assets of such deceased person, whether such assets are legal or equitable any statute or law to the contrary notwithstanding: Provided that this Part shall not prejudice or affect any lien charge or other security which any creditor may hold or be entitled to for payment of his debt.

In Re Samson75 Fletcher Moulton LJ noted that prior to the above legislation the law compelled an executor to divide the liabilities between specialty debts76 and simple contract debts, and to then satisfy the specialty debts before giving anything to the simple contract debts. As to the [page 494] debts in each class, though, the executor could pay them in any order. The legislation, opined his Lordship, was intended no more than to abolish this distinction between specialty debts and simple contract debts, and put every estate in the same position as though it had debts of only one kind. The power to pay debts of equal degree in any order was untouched by the Act, as a result, except that it was extended to all the debts of the estate. Vaughan Williams LJ expressed a similar view, reasoning as follows:77 Now it seems to me that the natural and simple meaning of those words is that these creditors are to be paid upon the basis that they are all of them creditors standing in equal degree. It does not seem to me that that provision in any way touches the right of the executor in the course of the administration to pay debts which stand in the same degree in such order as he chooses until there is a judgment, and it seems to me that there is nothing in those words to touch either the right of the executor to prefer one debt to another in the course of administration until there is a judgment, nor does it affect that upon which a good deal has been said in argument, which I do not think is very material, viz, the executor’s right of retainer. It is quite plain that these two rights

are rights which may continue quite consistently with dealing with all the creditors as standing in equal degree.

That the South Australian and Victorian Parliaments saw fit to address an executor’s right of retainer in other statutory provisions adds weight to the English Court of Appeal’s approach. But as the relevant provisions in the territories and New South Wales make no reference to specialty contracts, it may be queried whether the English Court of Appeal’s reasoning applies with equal force in these jurisdictions.78 14.17 The National Committee for Uniform Succession Laws recommended that model legislation follow the path adopted in Queensland and Western Australia — to abolish both of these common law rights, albeit subject to the two qualifications in those jurisdictions.79 It reasoned, in line with an English Law Commission report,80 that protection extended to personal representatives by the ‘right to prefer creditors’ was superfluous given the protection afforded upon following the procedure for advertising of claims against the estate.81 And as a judgment debt is now no longer payable in priority to other debts, the need for a ‘right of retainer’ to convert a debt into a judgment debt is likewise superfluous. The Committee favoured retaining the two qualifications mentioned above, reasoning that these ‘would operate in a fairly limited range of circumstances’.82 To this end, it surmised that a personal representative who was simply unaware of the impending insolvency of the estate, but had made no inquiries about its potential liabilities, might find it difficult to establish that the payment had been made ‘in good faith’.

Application of doctrine of marshalling 14.18 Marshalling is a principle for doing equity between two or more creditors, each of whom are owed debts by the same debtor, but where one of whom can enforce its claim against more than one security or fund (that is, the ‘double creditor’) and the other(s) can resort to only one (‘single creditors’).83 It does so by giving the single creditors an ‘equity’ to require that [page 495]

the double creditor satisfy itself (or be treated as having satisfied itself) so far as possible out of the security or fund to which the single creditors have no claim.84 This, in effect, entitles the single creditor(s) to stand in the double creditor’s place for this purpose. The double creditor could otherwise defeat the single creditors’ claim on the fund by exercising its contractual right to satisfy its claim therefrom. In addition to its operation in respect of securities, marshalling has a parallel operation in the administration of deceased estates.85 Its main function here is to prevent injustice to the beneficiaries of a deceased estate, arising from the choices of the deceased’s creditors, regarding which of the deceased’s property to realise in satisfaction of their claim.86 The law dictates that, if a creditor is entitled to resort to two (or more) assets in satisfaction of the debt (often the distinction here being between assets in the form of realty and those in the form of personalty),87 the court will not permit the creditor’s choice to deprive the legatee to which the asset realised was bequeathed. Rather, once claims of creditors have been satisfied, via marshalling the executor(s) adjust the burden of these claims against the beneficiaries’ entitlements, seeking ‘to do justice among all beneficiaries on an equal footing’88 by reinstating the order of distribution stipulated by the testator or by statute.89

Effect of Debtor Appointed as Executor Position at common law 14.19 There is nothing to preclude a testator from nominating a debtor as executor. At common law, as an executor takes full ownership of the testator’s estate,90 the appointment of a debtor-executor serves to extinguish or release the debt.91 After all, it is reasoned, ‘at law the executor cannot sue himself’.92 This position is not affected by the statutory interim vesting of the estate in the Public Trustee in most jurisdictions,93 or by the executor being jointly (or jointly and severally) liable with non-executors for the debt.94 As to the latter, the reason why a release to one debtor releases all jointly liable is that otherwise ‘the co-debtor, after paying the debt, might sue him who was released for contribution, and so in effect he would not be released’.95

Position in equity 14.20 The above is not the end of the matter, for at least two reasons. The first is that appointment of a debtor as executor does not by itself evince an intention that the debt be [page 496] extinguished; more is required to achieve this outcome. The second is that it runs counter to the executor’s fiduciary duties to the estate,96 including a duty not to profit from a fiduciary position. This explains why equity intervened, as described by the Privy Council in the following terms:97 [E]quity will at once fasten upon the executor an exactly equivalent obligation to account to those interested in the estate (whether creditors, legatees, residuary legatees, or next of kin) for the amount of the debt. The obligation of the debtor to the testator which existed at the moment of death is converted by the combined operation of law and equity into exactly the same obligation with a different technical character or label or method of enforcement. Their Lordships in those circumstances can find no substance in the contention … that the result of the appointment of the debtors as executors is to deny to any claim against them the quality of property of the testatrix at her death.

It follows that the debt constitutes an asset of the testator’s estate, a proposition not limited to debts owed by an executor, but that applies to all debts owed to the testator.98 This legal characterisation of the debt is not altered by the will purporting to forgive or release the debt, as at law a debt can only be truly released and extinguished by agreement for valuable consideration or under seal.99 The law construes the release or forgiveness of a debt in this context as the testator leaving a legacy to the debtor of the amount of the debt.100 The consequence is that the debt remains outstanding as an asset of the estate,101 although the debtor is ‘in a position to deny an obligation to pay it to the extent that the specific legacy is effective as such’.102

Exception to equitable principle — the rule in Strong v Bird 14.21

The basic position in equity — wherein appointment as executor is not

treated as a release of an existing debt — may be altered not only by express testamentary provision purporting to forgive or release the debt. As an exception to the unenforceability of incompletely constituted gifts, equity recognised the appointment of a debtor-executor could, in certain circumstances, function to release the debt. The relevant doctrine stemmed largely from the judgment of Jessel MR in Strong v Bird, who reasoned as follows:103 [W]hen a testator makes his debtor executor, and thereby releases the debt at law, he is no longer liable at law. It is said that he would be liable in [a Court of Equity]: and so he would, unless he could shew some reason for not being made liable. Then what does he shew here? Why he proves to the satisfaction of the Court a continuing intention to give; and it appears to me that

[page 497] there being the continuing intention to give, and there being a legal act which transferred the ownership or released the obligation — for it is the same thing — the transaction is perfected, and he does not want the aid of a Court of Equity to carry it out, or to make it complete, because it is complete already, and there is no equity against him to take the property away from him.

So, under what has become known as the ‘rule in Strong v Bird’, where the intention to release a debt is accompanied by a ‘continuing intention on the part of the testator to make [the debtor] a gift of the debt’,104 the court gives effect to that intention by releasing the debtor-executor from liability to pay the debt. Any claim in equity, it is said, is ‘rebutted by the evidence of a continuing intention on the part of the [testator] to forgive the debt’.105 The testator’s continuing intention is what serves to perfect, in equity, a gift already perfected at law.106 If this intention is present, the rule applies whether the donee is the only executor or one of several, and is not confined to cases of the release of a debt owing by the donee.107 It can potentially apply, say, to gifts of personal and real property.108 There is even authority applying the rule to where the will was made before the gift in question,109 although the legal basis for this application seems tenuous.110 14.22 It is hardly surprising, therefore, that cases in which the rule in Strong v Bird has been sought to be applied have targeted the basal issue of a continuing intention to give, variously described as ‘a continuing intention that the gift should have been given at the time when it was given’111 and ‘an intention to do

that which at the time of doing it was meant to be a gift out and out’.112 The High Court has described this requirement in the following terms:113 [T]here must be an attempt to make an immediate gift … and that there must be a continuous intention of giving, which, after the act of making what the testator supposes to be a gift, can

[page 498] only mean … that he believes it to have operated, and continues to mean that it should operate, as a gift, although in effect it does not satisfy the legal or equitable requirements of a perfect gift.

This is distinct from a mere or present intention to give. It also differs from what has been described as ‘an intention of testamentary benefaction’,114 namely no more than an intention to make a gift in the future.115 It goes without saying, moreover, that the rule has no application where the language of gift is precatory rather than imperative, for in this event there is insufficient indication of a donative intention in the first place.116 It also has no application, for essentially the same reason, where the ‘gift’ to the executor is either on trust117 or subject to a condition.118 If the rule in Strong v Bird does apply, the property in question nonetheless forms part of the estate. The rule functions to give the donee an equitable claim against the estate, which may in turn be defeated by a claim under family provision legislation.119 14.23 Although there is authority acknowledging the application of the rule in Strong v Bird to an administrator,120 it is difficult to appreciate why this should be so. Strong v Bird itself proceeded upon the basis that at law the appointment of a debtor-executor effected a release of any debt due to the testator, but this doctrine had no application to administrators, who derive title from the grant of letters of administration — an act of the law — not from the choice of the deceased expressed by his or her will.121 As ‘it is often a matter of pure chance which of many persons equally entitled to a grant of letters of administration finally takes them out’, it has legitimately been queried why ‘any special tenderness’ should accrue to a person ‘selected by law and not the will of the testator, and often indifferently selected among many with an equal claim’.122 There are, accordingly, compelling reasons to confine the rule in Strong v Bird to nominated executor(s).

The foregoing is not to suggest that the rule is other than anomalous in the executory context. Both judges and commentators have queried its foundation and continuing application in modern society.123 It has, to this end, been described as ‘strange that the property rights of beneficiaries under a will may depend upon the accident that the testator selects as executor an individual to whom he wrongly believes he has made a gift’.124 [page 499]

Effect of Debtor Being a Legatee — the Rule in Cherry v Boultbee 14.24 As foreshadowed above,125 it cannot be assumed that a debtor of a deceased estate to whom a legacy is left is able, as a matter of course, to claim that legacy without first discharging the debt in question. As a matter of principle, rather, a person who owes an estate money, who is thus bound to increase the mass of the estate by a contribution of his or her own, ‘cannot claim an aliquot share given to him out of that mass without first making the contribution which completes it’.126 This reflects the ‘rule’ in Cherry v Boultbee,127 the genesis of which in the deceased estate context has not limited its underlying principle being applied by equity courts more generally.128 It is inequitable, it is said, ‘to permit a claimant to compete against others who are entitled to share in the fund until the fund has been fully constituted by getting in the asset that the claimant’s debt represents’.129 Or as expressed by another Australian judge:130 The rationale of the equity is that if a person has to contribute to a fund he or she should not be able to have the fund dissipated by collecting from it before he or she has made contribution; that equity will not apply where it is contrary to statute or where it is contrary to the agreement of the parties, or otherwise the circumstances show that it would not be in accordance with conscience that it should apply.

While the language of set-off is sometimes used in conceptualising the rule in Cherry v Boultbee,131 Lord Cottenham LC in that seminal case advised against this, because the proper use of ‘set off’ is applicable only to mutual demands, debts and credits. His Lordship viewed ‘[t]he right of an executor of

a creditor to retain a sufficient part of a legacy given by the creditor to the debtor, to pay a debt due from him to the creditor’s estate, [a]s rather a right to pay out of the fund in hand’.132 Judges have instead, in the main, favoured characterising the rule, where it operates, in terms of a right of ‘retainer’.133 [page 500] 14.25 In the succession context, the rule in Cherry v Boultbee operates, it is said, where there is ‘money payable against money payable’,134 thus prompting the ‘netting off’ descriptor.135 This includes not only the monetary debt but also interest due on it.136 But that the gift to the debtor is something like money, or something that may well be easily turned into money, does not entitle the executor to the right of retainer. Nor can that right be exercised out of a specific legacy or out of a specific gift of property or chattels.137 If what is held for the legatee is not money, the executor cannot, it is reasoned, pay himself or herself the debt out of it by way of retainer.138 The logic underscoring the rule, moreover, cannot stand where the debt in question is not immediately payable (whereas the legacy is).139 14.26 In circumstances where the rule in Cherry v Boultbee applies, it is not necessarily confined to debts that predate the deceased’s death. It may apply to debts that subsequently come into existence, a typical example being a costs order against a beneficiary arising out of proceedings relating to the estate.140 It can also apply to debts that are statute-barred due to the expiry of the limitation period, as the statute bars only the remedy, not the debt; the executors thus remain entitled to exercise their right of retainer.141

No Distribution Required before Expiry of ‘Executor’s Year’ Concept of the ‘executor’s year’ At common law 14.27

The common law recognised, not as a fixed rule of law but as a prima

facie rule or ‘rule of convenience’,142 that an executor should administer the deceased’s estate within 12 months of the latter’s death (sometimes termed the ‘executor’s year’).143 Executors are entitled, it is said, to a year after the testator’s death ‘for the purpose of reducing the estate into possession and clearing it of debts’, and so need not pay any legacy within that time.144 The same applies, [page 501] as a matter of logic and principle, to administrators.145 The 1-year time frame derived from what judges thought as ‘the ordinary reasonable time within which an executor should realize investments which it is not proper to retain’.146 In 1868 Page Wood LJ expressed the relevant principle in the following terms:147 [T]here is no fixed rule that conversion must take place by the end of the year, but that that is the primâ facie rule, and that executors who do not convert by that time must shew some reason why they did not do so, and, where the question is distinctly and fairly raised upon the pleadings, there is an onus thrown on the executors to justify the delay.

Any such duty is subject to the terms of the testator’s will and, being no more than a prima facie rule, must yield to the facts of any given case. Judges refer to the duty of executors to exercise ‘due diligence’,148 which in some contexts may dictate administration within a shorter time frame, whereas in others a longer one. If it is to be a longer period, the onus is, as observed by Page Wood LJ, thrown upon the executors to justify the delay. A failure to discharge this onus may render the executor liable to the estate for any consequent loss.149

Statutory reflections of ‘executor’s year’ concept 14.28 The probate statutes in Tasmania and Victoria give statutory recognition to the executor’s year, but in terms that a personal representative is not bound to distribute the estate of the deceased before the expiration of 1 year from the death.150 Nothing precludes a personal representative from making a distribution beforehand, assuming of course that it is appropriate to do so.151 And in Queensland the statutory catalogue of executors’ duties152 —

which includes a duty to ‘distribute the estate of the deceased, subject to the administration thereof, as soon [page 502] as may be’153 — is expressed not to abrogate any rule or practice deriving from the principle of the executor’s year.154

South Australia — administrator to pay over money and deliver property to Public Trustee 14.29 The South Australian probate legislation contains a unique provision that requires an administrator — other than a limited company incorporated under the Corporations Act 2001 (Cth) that acts as administrator under powers granted by statute155 — possessed of or entitled to property within the state that belongs to a person who is neither sui juris nor a resident in the state (unless, in the latter case, the person has a resident duly authorised agent or attorney) to deliver or transfer that property to the Public Trustee. This must be effected immediately on the expiry of 1 year after the deceased’s death or, if sooner, 6 months from when the property available for that purpose has been sold, realised, collected or got in.156 The said delivery or transfer serves to discharge the administrator from further responsibility in respect of the property.157 This statutory duty aims to protect minority interests,158 and has been described as having a ‘beneficial and remedial purpose’.159 Upon receiving the property, the Public Trustee must administer it according to law, and in accordance with any will affecting it.160 In so doing, the Public Trustee may, subject to the terms of any will or trust, realise the property (or postpone its realisation)161 and, if satisfied that it will be advantageous to the beneficiaries, authorise the sale to the administrator (whether or not conjointly with another person) of any trust property not exceeding $4000 in value even if not offered for sale by public auction or otherwise.162 However, the Supreme Court may, on being satisfied by affidavit that it is ‘beneficial or expedient’ so to do, order that any (proposed) administrator not

be bound by the above requirement, whether generally or until a time stated in the order (which time may be extended by a subsequent order).163 An order has the effect of discharging the administrator from further responsibility in respect of the property to which it relates.164 In the Estate of Sopru (deceased)165 gives an illustration of circumstances meeting the ‘beneficial’ or ‘expedient’ criteria. The estate comprised real estate and an air charter company. Legoe J found that the administrator was well qualified to manage the company, in which she had a substantial financial interest. To transfer the assets to the Public Trustee would have required the Public Trustee to contract out the control of the business, and the administrator was the only logical person to whom the task of managing the company could be contracted out. His Honour also noted the capital and income commissions that would be payable to the Public Trustee. It was therefore expedient to make the order because the administrator was capable of continuing to operate the company, was well qualified to do so, and could do so cost-effectively. That the administrator was well qualified to manage the business of the testator, by virtue of being a coowner in the business, [page 503] similarly led Besanko J in Re Estate of Freebairn (deceased)166 to find it beneficial or expedient to dispense with compliance with the statutory requirement. The administrator’s capacity to manage the estate, and the desire to avoid appointing an administrator that would charge for its services, inclined judges in more recent cases to rule likewise even outside the business scenario, usually coupled with indicators including the relatively straightforward nature of estate property, the brevity of the period of administration and/or the structure established to safeguard relevant property.167 14.30 Although the above scheme aims to protect the interests of minors and other vulnerable beneficiaries, it does so, it has been said, ‘by the creation of a very blunt instrument’.168 In the absence of any cloud hanging over the suitability or capacity of the relevant administrator, it may well be that the inconvenience or cost involved in transferring the property to the Public

Trustee, or in applying for the court for dispensation from this requirement outweighs the benefit to be gained. For this reason, the National Committee for Uniform Succession Laws did not favour implementing such a scheme via model legislation.169

Translation of ‘executor’s year’ to accruing of interest on legacies 14.31 The law envisages that in some instances interest may be payable on the quantum of a pecuniary legacy — whether general or specific170 — to a legatee for some or all of the period between the date of the testator’s death and the date at which the legacy is distributed to the legatee. This presupposes that there are sufficient funds within the estate to pay the interest,171 and that the terms of the will do not oust any entitlement to interest. Assuming sufficient funds and the absence of ouster by the will, questions necessarily arise as to the moment from which a right to interest commences and the rate of interest payable. If these questions are explicitly addressed by the terms of the will, those terms must prevail.172 Otherwise, the general law, and in some jurisdictions statute, has pronounced default rules addressing each question.

The ‘default rule’ — correlation with expiry of the executor’s year 14.32 The default rule is that, if a pecuniary legacy173 is ‘for any cause not paid over to the legatee at the end of one year from the testator’s death, the legatee is entitled to interest on his legacy from that date up to the date of payment’.174 Statute replicates this rule in Queensland [page 504] and South Australia.175 The 1-year time frame derived from the ecclesiastical court, which gave the executor a year to get in the estate, and pay the legacy, before being compelled to give an account, namely the ‘executor’s year’.176 The interest payable is not a legacy from the testator; it is a sum given in the course of administration because justice requires that, owing to the failure to pay the

legacy in due time, the legatee should be put in the position in which he or she would have been had it been so paid. And it is unjust, it is reasoned, if any interest earned on the moneys in question after the 12-month period has expired were to accrue to the residuary legatees, who are after all entitled to nothing until all the legacies have been paid.177 As the interest is regarded as part of the income produced by the legacy, it necessarily follows the destination of the principal, although in the meantime it may be used for the maintenance of the legatee, if in the interval he or she requires to be maintained.178 14.33 The foregoing default rule — whereby interest runs from 1 year of the testator’s death — assumes that the pecuniary legacy is vested as at the date of the testator’s death. A contingent pecuniary legacy, on the other hand, can carry no interest until the contingency happens.179 Expressed another way, ‘a contingent legacy does not carry interest while it is in suspense’.180 To this rule there is an exception: a contingent pecuniary legacy to a child of the testator, or to a person to whom the testator stands in loco parentis, carries interest from the date of the testator’s death if the will makes no other provision for maintenance for that child or person.181 The default rule also assumes that the legacy is not given in satisfaction of a debt the testator owed to the legatee. If it is given in satisfaction of such a debt, it is established that ‘the court gives interest always from the death of the testator’.182 Assuming that the creditor-legatee has a contractual right to interest, to apply the default rule in this context would deprive him or her of interest due. It has been suggested that, if there is no such contractual right, there should be grounds to apply the default rule.183

Ouster of ‘default rule’ 14.34 The courts acknowledge that the ‘1 year default rule’ is adopted for ‘the sake of general convenience’ rather than necessarily grounded in principle.184 Being in the nature of a default rule, it must yield to the expression of a contrary intention in the will. If a time for the payment of a pecuniary legacy is prescribed by the testator, interest runs from that time rather than an essentially arbitrary 1-year period. As ‘interest is for delay of payment … till the day of payment comes, no interest is demandable’.185

[page 505] 14.35 It is open to a testator to stipulate that no interest is to accrue. For example, in Rubin v Rubin186 the testator’s direction that ‘the beneficiaries herein stated are not to receive interest on their bequests if such bequests are not paid with twelve months of the date of my death’ was held to oust any claim to interest. In other cases it can be gleaned from the testamentary language that the testator intended interest to run from the date of his or her death rather than a later time. In Re Riddell,187 for instance, the testator’s direction that a pecuniary legacy be ‘paid immediately after my death … in priority to all other legacies and annuities bequeathed by my will and treated as a first charge on my estate’ was held to evince an intention that interest accrue immediately. In Dundas v Wolfe Murray188 the testamentary words ‘from and immediately after my decease’ were similarly found to be sufficient to carry interest from the date of the testatrix’s death. Yet the National Committee for Uniform Succession Laws has recommended against giving the foregoing statutory force, reasoning that ‘although a will might direct that a legacy be paid immediately, the payment of any legacy is always subject to the administration of the estate’.189 In any event, courts are disinclined to adopt a strained construction of peripheral words to oust the default rule. So in Re Whiteley190 the English Court of Appeal held that the testator’s direction that his estate was not to be wasted by too hasty a realisation in no way interfered with the application of the ‘one year default rule’, so that the ordinary right to interest after 1 year remained. 14.36 Courts have construed a bequest of a pecuniary sum with the power to maintain a legatee — other than a child of the testator or a person to whom the testator stands in loco parentis191 — out of income as a sufficient indication of an intention that interest on the sum is to run from the date of the testator’s death. It is treated as an indication that the legatee is to be supported out of the legacy, that the testator bequeathed the legacy for the support of the legatee, and that the testator intended the legatee to be so supported as from the date of the testator’s death.192 The same construction has been applied to testamentary directions to set aside a pecuniary legacy so as to be available to

the legatee upon attaining a certain age; in this event, the fund thereby set aside is to carry all accretions from the moment it is set aside pursuant to the direction.193 Severance by the executors merely for convenience in administration is not sufficient for this purpose;194 the fund remains residue until the contingency occurs.195 More is required, although a direction to sever may be inferred, for instance, from a bequest to trustees on trust to invest a fund and pay the capital to the legatee on attaining a certain age.196 [page 506] Also, the fact that an annuity is charged upon a pecuniary legacy is viewed as an indication that the testator wished the legacy to produce income out of which the annuity could be paid as from the date of the testator’s death.197

Exception to ‘default rule’ where pecuniary legacy to child without maintenance 14.37 The general rule that a pecuniary legatee has no entitlement to interest until the legacy is payable — which is after 1 year of the testator’s death if the default rule applies — is subject to an exception in the case of a legacy to an infant child by a parent,198 or to an infant by a person in loco parentis. This exception applies only where no other provision is made by the will for the maintenance of the child; where other funds are provided therefor, if the legacy is payable at a future day it does not carry interest until the day of payment comes, as in the case of a legacy to a stranger.199 The exception dictates that even if the legacy is not payable until the infant reaches a certain age (including beyond the age of majority), or is not directed to be set apart for the legatee’s benefit, the legacy is treated by law as attracting a right to interest as from the testator’s death.200 As far back as 1712 this exception appeared in the case law, where the brief report of Attorney-General v Thompson states:201 [I]f a father devises portions to his daughters, or younger children, to be paid or payable at their respective ages of 21 years, or any other time certain, without making any provision for their maintenance in the mean time, and dies, that in this case they shall have interest for their portions from his death till paid, because the father was obliged to have provided for them, if he

had lived … [I]f such portions had been devised to them by a stranger, to be paid or payable at such an age, in this case their portions should not carry interest in the meantime, because he being a stranger, was under no such obligation to provide for them.

The interest, to this end, performs the role of maintenance for the legatee in question, it being assumed, in the absence of contrary intention, that the testator intended this to be the product of the legacy. Otherwise, when coupled with the courts’ construction of a bequest of a pecuniary sum with the power to maintain a legatee out of income as evincing an intention [page 507] that interest is to run from the testator’s death,202 interest on contingent and postponed legacies could be delayed, if the legatee is young, for a considerable time.203

Rate of interest payable — at general law 14.38 Where the law declares that interest should accrue on a pecuniary legacy to be paid, as between the legatee and the persons entitled to the residue, it has been the practice of the court, at least since the 1801 decision of the Court of Chancery in Sitwell v Bernard,204 to allow the legatee interest at the rate of 4 per cent, even if the residue may have produced interest at a higher rate. Lord Eldon there treated this as a rule of convenience, remarking that, as ‘the inquiry as to the state of the personal estate, when each and every part could be got in and made productive, is endless and immeasurable, the Court cuts the knot by doing what in general cases is convenient; though in particular cases both convenience and justice may be disappointed’.205 The 4 per cent rule of convenience is not unyielding. The court at general law retains a discretion as to the rate of interest to be applied.206 But the Australian practice has followed that in the United Kingdom, the case law containing multiple examples of Australian courts applying the 4 per cent rate.207 14.39 The practice at general law must yield to contrary provision in the will itself. If the testator prescribes the rate of interest to apply, effect must be given

to this prescription, assuming that the estate is sufficient to pay the interest at the rate prescribed.

Rate of interest payable — under statute 14.40 If the will does not set the rate of interest, statute in most jurisdictions fills the gap. The Australian Capital Territory probate legislation states that if interest is payable on a legacy, whether in accordance with the will, any enactment or rule of law — the latter clearly encompassing the default rule and its exceptions discussed above — that interest is payable at the rate determined by the Minister, unless the will otherwise provides or the court otherwise orders.208 The same applies in New South Wales, except that the rate is set as 2 per cent above the cash rate published by the Reserve Bank before 1 January in the calendar year in which interest begins to accrue,209 an approach endorsed by the National Committee for Uniform Succession Laws as one that is both accessible (in not being buried in regulations or ministerial direction) and capable of adapting as interest rates fluctuate.210 In each of these jurisdictions, the statute adds that, if an executor or administrator, in accordance with a testamentary power under which a legacy (other than an annuity) is payable, appropriates any property in or towards satisfaction of the legacy,211 the legatee is entitled to the income from the property so appropriated, and interest is not payable out of any other part of the estate on so much of the legacy as has been satisfied by the appropriation.212 The Queensland legislation imposes on a personal representative of a deceased person a duty to pay interest upon any general legacy from the first anniversary of the death of the testator until payment of the legacy or, in the case of a legacy payable at a future date, from that date [page 508] until payment, at the rate of 8 per cent per annum or at another rate the court may determine, unless a contrary intention respecting the payment of the interest appears in the will.213 It follows that statute in Queensland reflects the default rule recognised at general law so far as when interest is to run. And

consistent with the exceptions to the default rule, it adds that the foregoing does not abrogate any rule or practice under which a beneficiary is entitled to receive interest upon any legacy from the date of the testator’s death.214 The National Committee for Uniform Succession Laws has recommended model legislation reflective of the Queensland approach.215 Statute in South Australia also reflects the default rule recognised at general law so far as when interest is to run. It provides that, subject to any testamentary direction or provision to the contrary, if a will provides for the payment of a pecuniary legacy of a specified amount and the legacy is not paid in full on or before the relevant date, then, as from the relevant date and until the date of payment, interest accrues on the legacy, or so much of it as remains unpaid, at the rate fixed by regulation.216 ‘The relevant date’ means ‘a date fixed by the will as the date on or before which the legacy is to be paid or, if no such date is fixed by the will, the date of the first anniversary of the testator’s death’.217 In Western Australia interest payable on legacies is computed at the rate of 5 per cent per annum unless any other rate of interest is directed by the will or under a judgment or order of a court directing an account of legacies.218 Court rules in the Northern Territory, Tasmania and Victoria provide that, if a judgment directs an account of legacies, subject to a direction in the will or an order of the court, interest is allowed on each legacy at the prescribed rate from the end of 1 year after the testator’s death. In the Northern Territory the rate is 12 per cent per annum,219 in Victoria it is 8 per cent,220 whereas in Tasmania it is the last cash rate published by the Reserve Bank before 1 January in the relevant calendar year.221 Unlike the other jurisdictions, provision for the payment of interest at these rates is premised upon a judgment for an account. Lacking this, interest is arguably payable, in the usual case, at the 4 per cent rate espoused at general law.

Distribution of Estate No preference between beneficiaries of same class 14.41

Although the general law entitles a personal representative, among

creditors of equal degree, to pay one in preference to another (a ‘right to prefer creditors’),222 no correlative preference may be exercised as between beneficiaries of the same class. By definition, the claim of those who take the residuary estate must await the satisfaction of specific bequests and devises.223 And if the estate is insufficient to meet all those entitlements, the personal representatives are obliged to apprise the beneficiaries and, within the same class, pay them proportionately.224 [page 509]

Balancing beneficiaries’ interests where income accrues during administration 14.42 Income may accrue during the period of administration on amounts that have yet to be expended in payment of the deceased’s debts, legacies and expenses. What is known as the rule in Allhusen v Whittell225 requires that the accounts relating to the estate be adjusted to ensure that income so received by the life tenant, to the extent it exceeds what ought to have been paid, is credited to the capital account and deducted from such further income payments until the adjustment is reconciled. Though the rule continues to apply in South Australia and Tasmania, it has been effectively abolished by statute elsewhere226 largely because it obliges trustees to make ‘quite complex arithmetical calculations, which are generally of insignificant advantage to the estate’.227 The relevant legislation states that where, under the provisions of the will, any estate included in a residuary gift is settled by way of succession, no part of the income of that property can be applied towards payment of the funeral, testamentary, and administrative expenses, debts and liabilities, or of the interest thereon up to the date of the deceased’s death, or of any legacies bequeathed by the will. That income is to be applied, rather, in priority to any other assets in payment of any interest accruing on those liabilities or legacies, and any amount remaining is payable to the person for the time being entitled to the income of the property. The foregoing affects only the rights of beneficiaries under the will inter se, not the rights of the deceased’s creditors.

It also has effect subject to any contrary provisions in the will and to the provisions of any statute as to charges on the deceased’s property.

Effect of overpayments to beneficiaries 14.43 If an executor pays a legacy in full, however, the law presumes that the estate is sufficient to pay all legacies. The court will, to this end, oblige the executor, if solvent, to pay the remaining legacies. In this instance, the executor has no recourse to be indemnified by a legatee whom he or she has voluntarily paid.228 The position differs where the executor is insolvent; unpaid legatees, or for that matter creditors of the estate,229 may seek redress against the paid legatee(s) pursuant to the Re Diplock personal action.230 14.44 Not all overpayments to a legatee necessarily attract personal liability in the executor. If it transpires that the overpaid legatee has further entitlements to distribution from the estate — of whatever nature — the executor may retain from those entitlements amount(s) sufficient to rectify the error (termed ‘equalising’).231 There is English case authority, Re Horne,232 refusing this entitlement to an underpaid trustee-beneficiary, in which Warrington J saw any equity the trustee might have had in his character as beneficiary as ‘displaced by the fact that he is himself responsible for the mistake which has been made’. The decision was influenced [page 510] by the overpayments being the result of carelessness, it seems, as his Lordship noted that the trustee ‘seems to have made these payments without any exact reference to the actual amount of income [available]’ and not under any mistake of fact.233 Also, Warrington J declared it ‘highly inequitable’ for the court to allow the trustee to assert any right against the overpaid beneficiaries, who were ‘perfectly innocent’ and ‘only receiving what was paid to them in good faith and under the belief that it was the amount to which they were properly entitled by the terms of this will’.234 Yet the overpaid beneficiaries’ position in Horne would have been little

different had the trustee not been a beneficiary. The rationale underscoring this decision — that the law should treat an executor’s entitlement differently depending on whether or not he or she is an underpaid beneficiary — thus seems suspect. It is not surprising, accordingly, to find other judges keen to limit the decision in Horne to its facts rather than laying down any general principle.235 For example, in Macphillamy v Fox,236 where a trustee-beneficiary made the mistaken payments under a mistake shared with the beneficiaries, Harvey CJ in Eq distinguished Re Horne and allowed the trustee-beneficiary to recover. As a matter of broader principle, another Australian judge has remarked that, as the maxim ‘equality is equity’ serves to bring about equality between parties with the same interests, ‘primâ facie a trustee who has acted honestly and under legal advice should not be penalised by being unable to recoup himself for overpayments made to beneficiaries’.237 The same judge, targeting what would otherwise be the upshot of any rule grounded in the Horne decision, added the following:238 It does not seem to me equitable that such beneficiaries who have not shown or suggested that they will suffer hardship if made to refund overpayments, should profit more than the testator intended they should at the expense of a co-beneficiary who is also a trustee simply because the latter, acting under competent legal advice, has made a mistake in law.

As appears from the way in which the preceding judicial remarks are phrased, though, the cases leave open the possibility that an executorbeneficiary who overpays a beneficiary may, for reasons related to his or her own conduct, be denied recoupment. The disqualifying recklessness that ostensibly lies at the core of Horne seems not to have been buried, even though the presence or absence of recklessness makes no difference to the absolute merits of the overpaid beneficiary’s position. Indeed, if the overpaid beneficiary is in some way a party to the overpayment, whether by fostering it or having (access to) knowledge of the facts, the merits, if any, go against the beneficiary.239

Distribution with notice of debts 14.45 A personal representative who distributes the residuary estate with knowledge or notice of an outstanding debt owed by the estate is personally liable to meet that debt, and

[page 511] cannot secure an indemnity therefor from the estate (as the estate has been distributed) or from the residuary legatee(s).240 The position is otherwise if he or she lacked knowledge or notice of the debt, in which case the personal representative may recover from the residuary legatee(s).241 The cases distinguish knowledge or notice of a debt, which cannot be recovered, from notice of only a contingent liability. In the latter event, if the estate is distributed and the liability later ripens into a debt, the law may allow the personal representative to recover from the residuary legatee(s).242 A personal representative with notice of a contingent liability is thus not necessarily precluded from distributing the residuary estate, but does so at his or her own peril, and cannot always be guaranteed an indemnity from the estate (which may not be forthcoming, say, if his or her acts or omissions in this regard are characterised as a breach of duty to the estate). Prudence will therefore in the usual case dictate retention of a sum sufficient to cover a contingent liability.243 14.46 As regards contingent liabilities under a lease, statute other than in Tasmania extends protection to a personal representative in defined circumstances. This is needed because an assignment of a lease does not necessarily absolve the assignor from continuing duties under the lease to the other party thereto. Statute protects a personal representative from continuing liability under a lease he or she proposes, as part of his or her role, to assign to a purchaser, beneficiary or other person entitled to call for it, by allowing an assignment to be effected without continuing liability if the personal representative has:244 • satisfied all liabilities under the lease as have accrued due and been claimed up to the assignment; and • set apart a sufficient sum to meet any fixed or ascertainable future liability under the lease. The foregoing does not prejudice a lessor’s right to follow (any part of) the assets or estate into the hands of any persons among whom they may have been distributed, or who may have received them.245

Scope for (interim) distributions prior to completion of administration 14.47 As a matter of broad principle, a personal representative is not obliged to make a distribution from the estate of the deceased before completing the administration of the estate. An early (interim) distribution could threaten the capacity of the estate to meet claims or costs on it, and the personal representative may be personally liable for the shortfall.246 There are, nonetheless, instances where the law either obliges or entitles personal representatives to make interim distributions, as noted below. [page 512]

Circumstances where duty to make interim distribution 14.48 That an estate has yet to be fully administered does not prevent a personal representative from being obliged, in some circumstances, to make an interim distribution. What attracts such an obligation typically involves a concatenation of the following:247 If the legal personal representative is in a situation of knowing [1] that there are some distributions of the estate which could be made in accordance with the will or the rules of intestacy which govern the distributions of that estate, [2] that there was no realistic prospect that that distribution could be cut down or affected by those aspects of administration of the estate which remained unperformed, and [3] that the remaining tasks of administration were not likely to be completed soon, then it may be the duty of the legal personal representatives to make an interim distribution to that extent.

The same obligation may arise in circumstances where, although there remain expenses of administration to be paid in future from the estate, it is clear that, in a cautious view of what those expenses might be, the assets of the estate are more than enough to meet them. In each case, the foregoing assumes that the person entitled is clear and undisputed.248 And it reflects the basic duty of a personal representative to give effect to the terms of the will, and to do so proximately.249 14.49 A personal representative unsure of the appropriate course of action in this regard is ordinarily justified in approaching the court for advice and

directions.250 It is open to the court to authorise an interim distribution conditional on the recipient(s) proffering an undertaking to the court (appropriately secured, if necessary) to indemnify the estate from any unforeseen costs or claims.251 Otherwise, a personal representative may seek a personal undertaking from the recipient(s), the enforceability of which rests purely in the law of contract.

Circumstances where interim (maintenance) distribution allowed 14.50 Withholding any distribution until final administration of the estate may prove detrimental to persons heavily dependent on the deceased. For this reason, the probate legislation in New South Wales, Queensland and Western Australia, discussed below, entitles a personal representative to make an early distribution, without being exposed to liability, in defined circumstances. In any event, the trustee statutes generally empower trustees — which here includes personal representatives252 — in certain circumstances to make a payment out of the trust capital to a beneficiary who is entitled to the capital and, if the beneficiary is a minor, for the ‘maintenance, education, advancement or benefit’ of the minor.253 In New South Wales and Queensland the legislation states that, if a person was at the time of the deceased’s death wholly or substantially dependent on the deceased, and will receive [page 513] some or all of the estate if he or she survives the deceased,254 the latter’s personal representative may distribute from the estate an amount that is adequate for the person’s proper maintenance, support or education at any time after the deceased’s death.255 The personal representative may make this distribution even though he or she knows, at the time, of a pending or intended application for family provision out of the estate.256 No liability attaches to the personal representative for a distribution made in good faith.257 An amount so distributed must be deducted from any share of the estate to which its recipient becomes entitled.258

In Western Australia statute provides that, where a person dies leaving infant issue and the value of the share of the deceased’s property to which an infant is entitled does not exceed $10,000, the court may, on the application of the infant or a person on the infant’s behalf, authorise the personal representative to expend all or part of the infant’s share for his or her maintenance, advancement or education.259 The court’s authority in this regard is in addition to any other power or authority that the personal representative may have to pay or apply capital money or assets, or the income thereof, to or on behalf of an infant.260 Given the provisions in the trustee legislation relating to maintenance, which are generally broader in scope, the foregoing provision arguably has little independent operation.261

Protection for Personal Representatives via Notices Backdrop and rationale 14.51 The distribution of the estate precludes the exercise of the right to indemnity against the estate, as there is no longer an estate. Though there may be occasions where a personal representative may secure an indemnity from the beneficiaries for outstanding liabilities against the estate,262 this does not cover claims from underpaid or non-paid beneficiaries.263 At general law, therefore, a personal representative disregards claims at his or her peril.264 To address this difficulty,265 inter alia, the trustee statutes and, in the territories, New South Wales and Tasmania, also probate statutes contain procedures — for giving prescribed notices and requiring claimants to proceed within a set time — whereby personal representatives can obtain protection from outstanding claims. In so doing, it has been said, ‘the law strikes a balance between timely distribution to rightful beneficiaries and the determination of substantial and duly prosecuted claims’.266 14.52 As the distribution of an estate is a personal representative’s core duty, the National Committee on Uniform Succession Laws favoured making specific provision in model legislation for these procedures, as ‘the only viable way to achieve uniformity’ and to create greater awareness

[page 514] among personal representatives of this avenue for protection.267 But it refrained from recommending that the notice procedure be mandatory. As it gives protection to the personal representative, the latter has an incentive to follow the procedure in any case. But in some circumstances, including where the personal representative is also the sole beneficiary, to mandate the procedure would generate cost for no real benefit.268 The Committee did, however, go beyond the existing legislation by recommending that the protection afforded by statute not be restricted to persons who administer the estate under a grant of representation.269 It had in mind, in particular, estates of relatively small value that may be administered informally (for instance, by a bank vis-à-vis the contents of a bank account).

Position in the territories and New South Wales 14.53 In the territories, a personal representative who has given notices as, in the court’s opinion, would have been given by the court in an administration action for creditors and others to send in their claims against a deceased estate may, at the end of the time stated in the (last of the) notices for sending in those claims, distribute (any part of) the deceased’s assets among the persons entitled, having regard to the claims of which he or she has notice.270 The terms of this provision follow s 29 of the Law of Property and Trustees Relief Amendment Act 1859 (UK)271 (also known as Lord St Leonard’s Act). New South Wales had a similarly worded provision in its probate legislation pre-1977.272 The current New South Wales section reads as follows:273 The executor or administrator of the estate of a testator or an intestate may distribute the assets, or any part of the assets, of that estate among the persons entitled having regard to the claims of beneficiaries (including children conceived but not yet born at the date of the death of the testator or intestate), creditors and other persons in respect of the assets of the estate of which the executor or administrator has notice at the time of distribution if: (a) the assets are distributed at least six months after the testator’s or intestate’s death; (b) the executor or administrator has given notice in the form approved under s 17 of the Civil Procedure Act 2005 that the executor or administrator intends to distribute the assets in the estate after the expiration of a specified time;274 (c) the time specified in the notice is not less than 30 days after the notice is given; and (d) the time specified in the notice has expired.

Thus, the post-1977 section differs from its predecessor in three main ways: identifying the form of notice to be published by reference to a form prescribed by the court rules, not by reference to the practice of the court in an administration suit; identifying the class of people called upon to send in claims as being ‘beneficiaries (including children conceived but not yet born at the death of the testator …), creditors and other persons’, rather than merely ‘creditors and others’;275 and identifying claims required to be notified as those ‘in respect of the assets of [page 515] the estate’ in place of ones ‘against the estate’.276 It adds, as do its territory equivalents,277 that a personal representative who makes a distribution in accordance with the above is not liable in respect of the assets distributed to any claimant except upon notice of the claim at the time of the distribution. In the Australian Capital Territory and New South Wales a search of the register of births, deaths and marriages is necessary to protect the personal representative from being attributed with notice.278 Both in the Northern Territory and elsewhere statute declares that no personal representative is obliged to inquire as to the existence of any person whose interest arises solely due to status of children legislation, and protects a personal representative who, in distributing the estate, disregards such a person’s interest of which he or she lacks notice.279 The National Committee for Uniform Succession Laws has recommended the repeal of these provisions on the grounds that they illegitimately discriminate against ex-nuptial children.280 Nor did it favour the Australian Capital Territory and New South Wales approach, in that, inter alia, as a person’s birth or death outside the jurisdiction is not ordinarily registered, the searches in question will not necessarily reveal information from which all the children of a deceased person can be ascertained.281 To require a personal representative to conduct searches in each jurisdiction, the Committee added, would be unduly onerous. 14.54 In Ludwig v Public Trustee Campbell J explained the backdrop to Lord St Leonard’s Act as follows:282

Before the introduction of Lord St Leonard’s Act, an executor or administrator who had distributed the assets of the estate to beneficiaries could later be held liable to a creditor of the estate, who was unpaid. An executor or administrator could gain protection against this risk by bringing a suit in the Chancery court for the administration of the estate, and carrying out the distribution in accordance with the directions of the court. A procedure had developed in administration suits in the Chancery court whereby notices would be issued, in a form directed by the court, calling on persons with claims against the estate to notify their claims by a particular date, and effecting a distribution taking into account only those claims. The purpose of the statutory notice procedure which Lord St Leonard’s Act introduced was to give to an executor ‘all the protection which he would have had under the old rule of the Court, if the assets had been administered by such executor under the decree of the Court’: Clegg v Rowland (1866) LR 3 Eq 368 at 375 per Sir Richard Malins VC.

In a provision not found in Lord St Leonard’s Act, the legislation in the territories and New South Wales adds that a personal representative who has given required notices, and who then receives a claim against the estate, may serve a notice calling the claimant to take proceedings to enforce the claim within 6 months (3 months in New South Wales) and to duly prosecute [page 516] the claim.283 If, on the expiry of that period, the claimant does not satisfy the court that he or she is duly prosecuting the claim, the court may, on application by the personal representative, make an order barring the claim (subject to any conditions that appear just) or any other order it considers appropriate284 (which may include an order extending time).285 The claimant’s failure to take action thus provides a jurisdictional basis for the court to then make an order barring the claim. The foregoing supplies a procedure enabling a personal representative to bring to a head any unresolved claims of which he or she has notice. It was driven, it seems, by the practice of some creditors, seeking to avoid the equivalents of Lord St Leonard’s Act, giving notice of their claims but not proving them, with the aim of inducing the personal representative to compromise with them, safe in the knowledge that the personal representative would have to await the expiry of the limitation period for the claim to be barred. In the meantime the beneficiaries had to do without the property.286 14.55

Nothing in the foregoing prejudices the right of any creditor or

claimant to follow the estate assets, or any part of them, into the hands of any persons among whom they may have been distributed, or who may have received them.287 What the provision preserves is any personal claim an unpaid beneficiary or creditor may have against a wrongfully paid recipient of any part of the estate (a claim in personam), which is premised on all possible remedies against the personal representative having been exhausted. As a claim in personam, it is no defence that the recipient has dissipated the property or money,288 but at the same time the claim is not sustainable against a further holder of the property. The legislation likewise preserves the ability to ‘trace’ the wrongfully distributed property into the hands of its wrongful recipient(s) (a claim in rem), in turn premised upon the property continuing to be identifiable in the hands of a recipient or third party who is not a bona fide purchaser for value without notice of the claimant’s interest.289

Position in the remaining jurisdictions 14.56 In the remaining jurisdictions protection of personal representatives from liability upon distribution of the estate is located chiefly in the trustee legislation. Western Australia has enacted a provision confined to claims by a person to be a testamentary beneficiary or [page 517] entitled on intestacy,290 to be addressed separately.291 But as that provision does not purport to cover the claims of creditors and other claimants, claims of this kind remain to be addressed under the procedure noted immediately below.

General thrust of legislation 14.57 The legislation entitles a personal representative, before distributing an estate, to publish an advertisement292 requiring a person with a claim,293 whether as creditor or beneficiary or otherwise, to supply particulars not later than the date fixed in the advertisement.294 After that date the personal

representative may distribute the estate having regard only to claims of which he or she has notice at the time of the distribution, and is not, as regards any of the estate so distributed, liable in respect of any claim of which he or she lacked notice at that time.295 Personal representatives with notice must honour the claim, even though the claimant does not reply to the advertisement.296 Although the legislation does not define ‘notice’, having regard to general concepts of equity it has been held to go beyond actual notice, and to encompass constructive notice.297

Queensland and Western Australia 14.58 The Queensland and Western Australian trustee legislation entitles a personal representative who wishes to reject a claim,298 actual or prospective, to or against the estate, or against him or her personally by reason of being under any liability the subject of the right to indemnity, to serve a notice calling on the (prospective) claimant, within 6 months, to take proceedings to enforce the claim.299 Upon an application by the personal representative on the expiry of that period, if the claimant does not satisfy the court that he or she has commenced proceedings and is prosecuting them with all due diligence, the court may make an order extending the period, barring the claim or enabling the trust property to be dealt with without regard to the claim. 14.59 The Western Australian legislation adds that if any property held by a trustee — which includes a personal representative — cannot be distributed because the trustee does not know whether any person, or members of a class of person, who is or may be entitled is or are alive or dead, or where that or those persons can be found, the trustee may publish [page 518] such advertisements as are appropriate calling for claims within a time not less than 2 months from the date of publication.300 It prescribes a procedure for a trustee who is not satisfied as to the validity of a claim. The trustee may serve a notice calling upon the claimant to take proceedings to enforce the claim within 3 months, and advising that, if proceedings are not taken, the claim

may be disregarded and application may be made to the court without further notice for an order authorising the distribution of the property.301 Upon proof of the circumstances, the inquiries and advertisements made (and their results), the claims of which notice has been received, the notices given to doubtful claimants, and any action taken by the latter to enforce their claims, the court may grant the trustee liberty to distribute (part of) the property, subject to such conditions as it may impose, ‘as if every person and every member of any class of person specified in the order … is not in existence or never existed or has died before a date or event specified in the order’.302 This, it is said, incorporates the principles laid down in Re Benjamin.303 where a personal representative was granted liberty to distribute an estate on the basis that a missing beneficiary predeceased the testator. Such an order does not declare death, but serves to protect the personal representative from liability if it proves that the missing beneficiary is either still alive or died after the deceased. The two-pronged Western Australian approach has been criticised on the grounds that ‘[t] here is no particular reason why the court should supervise the trustee’s attempts to discover unknown possible beneficiaries’ and that it is ‘confusing and unnecessarily expensive to require two different advertisement procedures for two kinds of case which are not very different from each other’.304

South Australia and Tasmania 14.60 Like their territory and New South Wales counterparts,305 the South Australian and Tasmanian Acts expressly address the event that a personal representative disputes a claim, and likewise entitle him or her to give written notice requiring the claimant to either withdraw the claim or institute proceedings to enforce it within 6 months. If the claim is not so withdrawn or prosecuted, the personal representative may apply by summons to a Supreme Court judge in chambers for an order that, as against the personal representative, the claim be absolutely barred. The judge may make such order as he or she deems just, which binds all persons whom it purports to affect.306

Victoria

14.61 Also like its territory and New South Wales counterparts, the Victorian probate statute entitles a personal representative with notice307 of a claim (to be made) against the estate to serve upon a (potential) claimant a notice requiring that person to take, within 3 months, all proceedings proper to enforce or to establish the claim and to duly prosecute the same.308 Once that time has expired, the personal representative may make application to the court.309 If the court if not satisfied that those proceedings have been taken and are being duly prosecuted, it may [page 519] order that the 3-month period be extended,310 order that the claim of any person so served with notice of the application be barred, and make any further or other order enabling the estate to be distributed or dealt with without regard to the claim.311

Preservation of claims under trustee legislation 14.62 Other than in Victoria, the legislation states that nothing in the above prejudices a person’s right to enforce a remedy in respect of a claim against someone to whom a distribution of the estate has been made or, in Queensland and Tasmania, relieves personal representatives of any duty to make searches or obtain certificates similar to those an intending purchaser would be advised to make or obtain.312 The Tasmanian and Victorian probate statutes add that a conveyance by a personal representative to a person other than a purchaser does not prejudice the rights of any person to follow the property in question or its proceeds into the hands of its recipient, or of any other non-purchaser who may have received the property or in whom it may be vested.313 As noted above, provisions of this kind preserve claims in personam against wrongfully paid recipients or in rem against the wrongfully distributed property, assuming the requirements for the claims are substantiated.314 14.63 The trustee legislation in Queensland and Western Australia contains a further section dedicated to the claim in personam.315 It largely reflects the general law except for recognising a change of position defence316 and in

Western Australia, unlike the position at general law and in Queensland, requiring that a claimant exhaust ‘all other remedies’317 against the wrongly paid recipient(s) prior to proceeding against the errant personal representative.318 Any requirement to exhaust remedies against recipient(s) or the personal representative(s) has been described as ‘an unnecessary restriction on a claimant’s rights’, and it has been suggested, to this end, that a claimant should be free to choose the relevant defendant(s).319 [page 520]

Statutory protection for personal representatives where will rectified 14.64 The wills legislation in all jurisdictions except Western Australia makes explicit provision directed to giving a personal representative protection, in defined circumstances, from liability that would otherwise stem from distributions made under a will that the court subsequently rectifies.320

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This reflects the basic notion that property held by a person on trust is not the ‘property’ or ‘asset’ of that person, and is not available to meet his or her debts, including subsequent to his or her death: Deering v Torrington (1703) 1 Salk 79; 91 ER 75. ACT ss 41A(1), 41B; NSW ss 46A(1), 46B; NT ss 55(1), 56(1); Qld s 56(1); SA s 46(2); Tas s 32(1); Vic s 37; WA s 10(1). The reference to property disposed of by the person’s will under a general power of appointment reflects the general law (O’Grady v Wilmot [1916] 2 AC 231 at 245–8 per Lord Buckmaster LC, at 264 per Lord Atkinson, at 270 per Lord Sumner; see further Williams, Mortimer and Sunnucks, pp 794–800) and has been recommended to form part of national model legislation (QLRC, Report 65, Vol 1, pp 308–9). In some of these jurisdictions the legislation adds that any person to whom any such beneficial interest devolves or is given, or in whom it vests, who disposes of it in good faith before an action is brought out against him or her is personally liable for the value of the interest so disposed, but that interest is not liable to be taken in execution in the action: ACT s 41A(2); NSW s 46A(2); NT s 55(2); Tas s 32(2). The statutory order can only to be displaced, it has been said, ‘by a direction in a will for the payment of debts where one can glean both that the testator intended that the order should be displaced and also indicated in what way the burden of debts and liabilities was to be borne or apportioned’: Singer v United Israel Appeal Refugee Relief Fund [2013] NSWSC 1035; BC201311569 at [20] per White J (and on the facts held that a direction for the executors to ‘pay debts, funeral and testamentary expenses and other duties’ is to be construed as an administrative direction, but does

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15.

16.

not have the substantive effect of altering the statutory order: at [19]). ACT s 41C(1); NSW s 46C(2) (see Armstrong v Children’s Hospital at Westmead [2008] NSWSC 1315; BC200811109); NT s 57(1); Tas s 34(3); Vic s 39(2) (pre-1 January 2015; as to the current position, see 14.6). As to the relationship between these provisions and the terms of the will, see Re Tong [1931] 1 Ch 202 at 211 per Lord Hanworth MR, at 215 per Eve J; Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1 at 40–7 per Dixon J, at 56 per McTiernan J; BC3400032. The order prescribed is found in ACT Sch 4, Pt 4.1; NSW Third Sch, Pt 2; NT Sch 4 Pt I; Tas Sch II, Pt II; Vic Sch II, Pt II (pre-1 January 2015; as to the current position, see 14.6). This is based on the order introduced in England by the Administration of Estates Act 1925 (UK) s 34, Sch 1, Pt 2. See Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1 at 38–40; BC3400032 per Dixon J. For commentary see further QLRC, Report 65, Vol 2, pp 94–7. ACT s 41A(1); NSW s 46A(1); NT s 55(1) (see also equivalent provisions in Tasmania and Victoria: Tas s 32(1); Vic s 37): see 14.1. Joyce v Cam (2004) 12 BPR 22,231; [2004] NSWSC 621; BC200404763 at [48] per Campbell J. Re Tong [1931] 1 Ch 202 at 212. Those remarks were quoted with approval by Lord Hanworth MR in Re Worthington [1933] 1 Ch 771 at 776, and affirmed in that case by Romer LJ at 778. They were quoted in Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1; BC3400032 (see at 28– 9 per Starke J, at 43 per Dixon J) and cited with approval by Campbell J in Joyce v Cam (2004) 12 BPR 22,231; [2004] NSWSC 621; BC200404763 at [48]. Joyce v Cam (2004) 12 BPR 22,231; [2004] NSWSC 621; BC200404763 at [51] per Campbell J (adding that, if there really is a choice about which assets should be sold, ‘it would often be an appropriate exercise of discretion on the part of the executor to sell assets of a class upon which the burden of payment, as between beneficiaries, would fall’, but noting that ‘there is no bright-line rule requiring an executor always to sell assets in the statutory order, and if the executor does not do so the process for making financial adjustment between beneficiaries aims to ensure that no beneficiary suffers loss in consequence’). Qld s 59(1). As to the backdrop to the Queensland approach, see Queensland Law Reform Commission, The Law Relating to Succession, Report No 22, 1978, pp 38–44. ‘Residuary estate’ means: (a) property of the deceased that is not effectively disposed of by his or her will; and (b) property of the deceased not specifically devised or bequeathed but included (either by a specific or general description) in a residuary disposition: Qld s 55. Subject to a contrary or other intention signified by the will: (a) pecuniary legacies are to be paid out of the property comprised in class 2 after the discharge of the debts or such part thereof as are payable out of that property; and (b) to the extent to which the property comprised in class 2 is insufficient, the pecuniary legacies will abate proportionately: Qld s 60. As to donationes mortis causa, see 1.15–1.28. Qld s 59(2). The National Committee for Uniform Succession Laws recommended that the model legislation should include a provision akin to Qld s 59(2), and provide that property within each class of the model statutory order — unlike the limited reference to statutory ratability in most other jurisdictions — is to be applied rateably in the discharge of debts: QLRC, Report 65, Vol 2, p 119. The National Committee for Uniform Succession Laws recommended that, were a contrary intention capable of being established other than by will, ‘it could result in uncertainty as to whether the model statutory order had been varied’, which in turn, ‘especially in relation to what is sufficient proof of a contrary intention, could result in costly disputes, and erode the assets of the estate’: QLRC, Report 65, Vol 2, p 123. Qld s 59(3). As to the backdrop of this provision, see QLRC, Report 65, Vol 2, pp 124–6. Cf Nield v Fowler [1961] NSWR 85 at 91 (FC).

17.

18.

19. 20. 21. 22. 23. 24. 25.

26.

27. 28. 29. 30.

31.

QLRC, Report 65, Vol 2, p 117 (having earlier surmised that ‘[t]he rationalisation of the classes of assets prescribed in the various statutory orders may lead to greater certainty in relation to the application of assets’, and ‘[t]he shorter the list of classes of assets for the payment of debts, the easier it should be to understand the effect of a direction contained in a will to pay debts’: p 100). Re Korvine’s Trust [1921] 1 Ch 343 at 348 per Eve J (who explained that, if the donor of a donatio mortis causa dies without revoking the gift, ‘the donee’s title is derived from the act of the donor in his lifetime and relates back to the date of that act’). See 14.10. QLRC, Report 65, Vol 2, p 116. Namely the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic). As to the backdrop to these amendments, see VLRC, 2013, recommendations 63–65. Vic s 39A(2). Vic s 39A(3)(a). Vic s 39A(3)(b). ‘Pecuniary legacy’ means a gift of a sum of money in a will, and is expressed to include: (a) an annuity; (b) a general legacy payable out of the deceased’s general estate and not attached to a specific asset or fund belonging to the deceased; (c) a demonstrative legacy directed to be paid out of a specific fund or a particular part of the deceased’s estate, to the extent that it cannot be paid out of the specific property on which it is charged; (d) any other general direction by a testator for the payment of an amount, including all duties relating to the estate or property: Vic s 5(1). Vic s 39B(1). The section provides the following example: X’s will gives pecuniary legacies totalling $4000 to A, B and C. A is to receive $500, B is to receive $1500 and C is to receive $2000. X’s available property has a value of $2000 and is insufficient to pay the pecuniary legacies. If the pecuniary legacies must abate proportionally and only 50% of the value of the gifts is available to meet them, each gift must abate by 50%. As a result, A receives $250, B receives $750 and C receives $1000. Vic s 39B(2). Calcino v Fletcher [1969] Qd R 8 at 22–3 per Hoare J. See also QLRC, Report 65, Vol 2, pp 91–3. As to this order, see 14.3–14.7. The South Australian provision applies only where the interest charged is ‘land or other hereditaments’. It follows the original English provision (Real Estate Charges Act 1854 (UK) which, together with two amending Acts (Real Estate Charges Act 1867 (UK); Real Estate Charges Act 1877 (UK)), is commonly referred to as Locke King’s Act: see Haines, p 372), which did not extend to personalty, because it predated the extension of the English rule to personalty via s 35 of the Administration of Estates Act 1925 (UK). The National Committee for Uniform Succession Laws has recommended that model legislation should, for this purpose, assimilate real and personal property (QLRC, Report 65, Vol 2, p 138), endorsing the view that it is ‘difficult to see why different results ensue depending on the nature of the property’: British Columbia Law Reform Commission, Wills and Changed Circumstances, Report No 102, 1989, p 59. Other than in the Australian Capital Territory, Queensland and Victoria, the other intention may be signified by ‘will, deed or other document’, whereas in those three jurisdictions it is limited to an intention signified by will. The National Committee for Uniform Succession Laws recommended that the Queensland (and Australian Capital Territory) approach ought to translate to the model legislation (QLRC, Report 65, Vol 2, p 141), informed by the view expressed by the Law Reform Commission of Western Australia that the alternative broader approach ‘presents problems of proof’ and ‘leaves open possibilities for fraud’, there being ‘no good reason why such an expression of what is essentially a testamentary intention should remain outside the normal rules relating to the

32.

33. 34. 35.

36. 37. 38.

39.

40. 41. 42.

43. 44.

45.

form in which testamentary wishes must be expressed’: Law Reform Commission of Western Australia, The Administration of Assets of the Solvent Estates of Deceased Persons in the Payment of Debts and Legacies, Project No 34, Pt VII, June 1988, pp 15–16. Civil Law (Property) Act 2006 (ACT) s 500(1), (2); Conveyancing Act 1919 (NSW) s 145(1); Qld s 61(1); SA s 52(1); Tas s 35(1); Vic s 40(1); Wills Act 1970 (WA) s 28(1). See, for example, Gellibrand v Murdoch (1937) 58 CLR 236; BC3790122. Civil Law (Property) Act 2006 (ACT) s 500(5); Conveyancing Act 1919 (NSW) s 145(3); SA s 52(3); Tas s 35(3); Vic s 40(3); Wills Act 1970 (WA) s 28(3). There is no equivalent provision in Queensland. See, for example, Haimes v Goode (1933) 33 SR (NSW) 1. Re Fegan [1928] Ch 45 at 49 per Tomlin J (‘once a testator directs payment of debts out of a specific fund, he has signified a contrary or other intention in respect of any debt which would otherwise be payable out of another fund’). See, for example, Re Valpy [1906] 1 Ch 531. Re Fegan [1928] Ch 45 at 52–3 per Tomlin J. Re Fleck (1888) 37 Ch D 677 at 681 per North J. Civil Law (Property) Act 2006 (ACT) s 500(3), (4); Conveyancing Act 1919 (NSW) s 145(2) (see McPhie v Mackay [1975] 2 NSWLR 369 at 372–3 per Holland J); Qld s 61(2); SA s 52(2) (‘such intention must be signified expressly and by distinct reference to the money charged’); Tas s 35(2); Vic s 40(2); Wills Act 1970 (WA) s 28(2). See QLRC, Report 65, Vol 2, pp 124–6; In the Will of Fisher [1948] VLR 8 (where a gift of residue subject to payment of ‘all my just debts’ and ‘all other charges’ did not evince a contrary intention so as to oust the statutory rule, Fullagar J construing the latter phrase as referring simply to ‘any other expenses which might have to be paid in due course of administration’: at 10). QLRC, Report 65, Vol 2, p 145. See, for example, In the Will of Fisher [1948] VLR 8 (where a clause directing that the ‘rest residue and remainder of my real and personal estate subject to the payment thereout of … all my just debts funeral and testamentary expenses’ be distributed among certain of the testator’s children was, applying the statute, held insufficient to signify another intention). Queensland Law Reform Commission, The Law Relating to Succession, Report No 22, 1978, p 44. QLRC, Report 65, Vol 2, p 130. QLRC, Report 65, Vol 2, p 132. In so recommending, the National Committee was not persuaded by views expressed by law reform commissions in British Columbia and Ontario that the statutory rule may need modification where the property was mortgaged to finance a purchase unrelated to the property itself: see British Columbia Law Reform Commission, Wills and Changed Circumstances, Report No 102, 1989, pp 61–3; Ontario Law Reform Commission, Administration of Estates of Deceased Persons, 1991, p 195. The National Committee maintained that the rule is ‘now widely accepted and that any change to the principle would be very disruptive’ as well as generate ‘an undesirable complication to the administration of assets’, and was unconvinced that any modification of the rule ‘would necessarily reflect more closely a testator’s probable intention about the payment of a mortgage debt’: QLRC, Report 65, Vol 2, pp 135, 136. See 14.12. ACT s 41C(2) (see Sch 4, Pt 4.2); NSW s 46C(1) (see Third Sch, Pt 1); NT s 57(2) (see Sch 4, Pt II); Qld s 57; Tas s 34(1) (see Sch II, Pt I); Vic s 39 (before 1 January 2015, Vic s 39(1) Sch II, Pt I); WA s 10A(1) (see Fifth Sch). As to the common law and statutory backdrop to these provisions, see QLRC, Report 65, Vol 2, pp 47–9. This basic rule, which imports the bankruptcy priority rules in this context, had its genesis in s 10 of the Supreme Court of Judicature Act 1875 (UK). Although corresponding provision was made by statute in several Australian states in non-probate legislation (see QLRC, Report 65, Vol 2, p 48, n

46. 47. 48. 49. 50. 51. 52. 53. 54. 55.

56. 57.

58. 59.

60.

61. 62.

63. 64. 65.

66. 67. 68.

197), it has since been repealed in favour of the current probate statutes. The earlier provision was limited in its application to insolvent estates subject to an administration order of the court. The current provisions envisage no such limitation: Attorney-General v Jackson [1932] AC 365 at 384–5 per Lord Tomlin (referring to earlier equivalent English legislation). SA s 60(1). SA s 60(2). SA s 60(3). SA s 60(4). SA s 60(5). SA s 61(1) (also applying the rule to an administration by the Public Trustee under s 9 of the Public Trustee Act 1995 (SA) (see 10.37) where the estate proves insolvent). See QLRC, Report 65, Vol 2, pp 38–46. Pursuant to s 109 of the Australian Constitution. See Bankruptcy Act 1966 (Cth) ss 244, 247. Lyttleton v Cross (1824) 3 B & C 317 at 322; 107 ER 751 at 753 per Abbott CJ. See also at 324; 754 per Bayley J (‘An executor has a right to pay one creditor in preference to another of the same degree, and he has it in his election to give a preference by confessing a judgment to one of several creditors of equal degree, who have brought actions against him’), at 330; 756 per Littledale J; Attorney-General v Jackson [1932] AC 365 at 370 per Lord Atkin, at 375 per Lord Tomlin. Re Samson [1906] 2 Ch 584 at 593 per Buckley LJ. Re Compton (1885) 30 Ch D 15 at 19 per Cotton LJ. Indeed, as far back as 1547 it had been judicially opined that ‘our law is not so unreasonable or uncharitable … for the executor may retain assets to pay himself, notwithstanding he may not bring an action to recover it … for true it is that the action is gone by the act of administration’: Woodward v Darcy (1547) 1 Plow 184 at 185; 75 ER 282 at 285. Attorney-General v Jackson [1932] AC 365 at 370 per Lord Atkin. Namely: (1) funeral and testamentary expenses; (2) debts due to the King on record or specialty; (3) such debts as are by particular statutes to be preferred to all others; (4) debts of record; (5) debts due on special contracts; (6) debts due on simple contracts: Attorney-General v Jackson [1932] AC 365 at 371 per Lord Atkin, at 375–6 per Lord Tomlin. Attorney-General v Jackson [1932] AC 365 at 385 per Lord Tomlin. In this case, as Crown debts stood in priority to the debt due to the executor, the latter could not exercise his or her right of retainer against it. Re Hargreaves (1890) 44 Ch D 236 at 243 per Lindley LJ. As to administration orders, see 12.46. Nunn v Barlow (1824) 1 Sim & St 588 at 589; 57 ER 233 at 234 per Sir John Leach VC, endorsed in Davies v Parry [1899] 1 Ch 602 at 609–10 per Romer J; Attorney-General v Jackson [1932] AC 365 at 376 per Lord Tomlin. Qld s 58(1); WA s 10(2), (3). Qld s 58(2)(a); WA s 10(5). Qld s 58(2)(b); WA s 10(5). The Queensland and Western Australian provisions, to this end, gave effect to law reform commission recommendations (see Queensland Law Reform Commission, The Law Relating to Succession, Report No 22, 1978, p 41; Law Reform Commission of Western Australia, Administration of Deceased Insolvent Estates, Project No 34, Pt III, December 1978, p 19) and are based on s 10 of the Administration of Estates Act 1977 (UK). Vic s 36(3). Tas s 34(2). SA s 127(1). Consistent with this position, in an administration by the court under SA s 60 where

69. 70. 71. 72. 73. 74.

75. 76.

77. 78.

79. 80. 81. 82. 83. 84.

85. 86. 87. 88. 89. 90. 91.

the estate is insolvent, the executor or administrator has no right of retainer, and a creditor who has at any time obtained judgment against the executor or administrator does not, by reason of the judgment, have any priority over other creditors: SA s 62(a), (b). SA s 127(2). SA s 127(3). ACT s 55(1); NSW s 82(1); NT s 87(1) (emphasis supplied). The Western Australian legislation also contains an equivalent provision: WA s 23(1). ACT s 55(3); NSW s 82(3); NT s 87(3). The Western Australian legislation also contains an equivalent provision: WA s 23(2). ACT s 55(2); NSW s 82(2); NT s 87(2). Administration of Estates Act 1869 (UK) s 1 (also known as Hinde Palmer’s Act): see SA s 59(1), (3); Vic s 36(1) (see also s 36(2), which states that in the administration of the estate of any person ‘debts of record whether of record in the lifetime of such person or obtained against his executor or administrator for debts incurred by the deceased shall rank in the same degree as if they were specialty or simple contract debts’). [1906] 2 Ch 584 at 592. ‘Specialty debt’ refers to a debt acknowledged as due by an instrument under seal, stemming from a ‘specialty’ being a written instrument that has been sealed and delivered and given as security for the repayment of a specifically indicated debt: Aiken v Stewart Wrightson Members’ Agency Ltd [1995] 3 All ER 449 at 459–60 per Potter J. Re Samson [1906] 2 Ch 584 at 589. See also at 593–4 per Buckley LJ; Attorney-General v Jackson [1932] AC 365 at 376–7 per Lord Tomlin. See Saddington v Saddington (1904) 4 SR (NSW) 341 at 344, 345–6 per A H Simpson CJ in Eq (who remarked that the natural meaning of the words ‘all creditors of every description’ in NSW s 82(1) is ‘all creditors of every kind’, and that the words ‘[p]rovided always that this Act shall not prejudice or affect any mortgage, lien, charge, or other security which any creditor may hold or be entitled to for payment of his debt’ convey a ‘strong indication of intention’ that the words ‘creditors of every description’ were regarded as having a wide meaning). QLRC, Report 65, Vol 2, pp 77–84. Law Commission, Administration Bonds, Personal Representatives’ Rights of Retainer and Preference and Related Matters, Report No 31, 1970, pp 4–5. As to protection via advertisements, see 14.51–14.63. QLRC, Report 65, Vol 2, p 83. For a detailed treatment of marshalling, see P Ali, Marshalling of Securities, Clarendon Press, Oxford, 1999. Dolphin v Aylward (1870) LR 4 HL 486 at 505 per Lord Westbury; Re Crothers [1930] VLR 49 at 61– 2 per Cussen J; Miles v Official Receiver in Bankruptcy (1963) 109 CLR 501 at 510–11; BC6300400 per Dixon CJ, Menzies and Windeyer JJ; Re Bank of Credit and Commerce International SA (No 8) [1998] AC 214 at 230–1 per Lord Hoffmann. See generally Williams, Mortimer and Sunnucks, Ch 75. Aldrich v Cooper (1803) 8 Ves 382 at 396–7; 32 ER 402 at 408 per Lord Eldon LC. See, for example, Re Salt [1895] 2 Ch 203; Re Roberts [1902] 2 Ch 834; Re Kempster [1906] 1 Ch 446. Re Cohen (deceased) [1960] Ch 179 at 190 per Danckwerts J. Re Townley [1922] 1 Ch 155 at 159 per Sargant J. See 10.43. Carey v Goodinge (1790) 3 Bro CC 110 at 111; 29 ER 439 at 440 per Lord Thurlow LC; Re Bourne [1906] 1 Ch 697 at 708 per Romer LJ; Re Pink [1912] 2 Ch 528 at 536 per Farwell LJ; Jenkins v

92.

93. 94.

95. 96. 97.

98. 99.

100. 101.

102. 103.

104. 105. 106.

Jenkins [1928] 2 KB 501 at 506 per Salter J, at 508 per Talbot J. Commissioner of Stamp Duties (NSW) v Bone (1976) 135 CLR 223 at 227 per Lord Russell (PC). See also Re Gonin (deceased) [1979] 1 Ch 16 at 35 per Walton J (‘by appointing the executor, the testator has by his own act made it impossible for the debtor to sue himself’). As to the interim holding of property by the Public Trustee, see 11.71–11.76. Cheetham v Ward (1797) 1 Bos & P 630; 126 ER 1102; Nicholson v Revill (1836) 4 Ad & E 673 at 683; 111 ER 941 at 944 per Lord Denman CJ (referring to the principle laid down by Eyre LCJ in Cheetham v Ward, ‘as sanctioned by unquestionable authority, that the debtee’s discharge of one joint and several debtor is a discharge of all’); Jenkins v Jenkins [1928] 2 KB 501 at 506 per Salter J, at 508 per Talbot J. North v Wakefield (1849) 13 QB 536 at 541; 116 ER 1368 at 1369 per Patteson J. As to the executor’s fiduciary duties, see 12.21–12.23. Commissioner of Stamp Duties (NSW) v Bone (1976) 135 CLR 223 at 228 per Lord Russell (PC) (emphasis in original). See also Carey v Goodinge (1790) 3 Bro CC 110 at 111; 29 ER 439 at 440 per Lord Thurlow LC; Re Bourne [1906] 1 Ch 697 at 708 per Romer LJ; Re Pink [1912] 2 Ch 528 at 536 per Farwell LJ. See 12.21–12.23. Strong v Bird (1874) LR 18 Eq 315 at 317–18 per Jessel MR (who noted that the mere saying by a creditor to a debtor, ‘I forgive you the debt’, will not operate as a release at law, as ‘[i]t is what the law calls nudum pactum, a promise made without an actual consideration passing, and which consequently cannot be supported as a contract. It is not a release, because it is not under seal’); Re Pink [1912] 2 Ch 528 at 536 per Farwell LJ (‘It is plain that a mere intention to give, not carried out during the lifetime, will not do, because that would in effect be to allow a man to dispose after his death of his property by a document not testamentary’). Izon v Butler (1815) 2 Price 34; 146 ER 13; Attorney-General v Holbrook (1823) 12 Price 407; 147 ER 761; Sidney v Sidney (1873) LR 17 Eq 65 at 70 per Jessel MR. Commissioner of Stamp Duties (NSW) v Bone (1976) 135 CLR 223 at 229 per Lord Russell (PC) (‘by such purported release the testator cannot remove this asset from the claims of creditors of the estate and the requirements of funeral and administration expenses: the testator can give to his benefaction no other status than that of a specific legacy of the value of the debt’). Commissioner of Stamp Duties (NSW) v Bone (1976) 135 CLR 223 at 229–30 per Lord Russell (PC) (emphasis supplied). (1874) LR 18 Eq 315 at 318–19. See also Re Pink [1912] 2 Ch 528 at 538–9 per Kennedy LJ; Cope v Keene (1968) 118 CLR 1 at 8; BC6800230 per Kitto J; Blackett v Darcy (2005) 62 NSWLR 392; [2005] NSWSC 65; BC200500367 at [32]–[35] per Young CJ in Eq. See further Meagher, Gummow and Lehane, Ch 30. Jenkins v Jenkins [1928] 2 KB 501 at 507 per Salter J. Re Applebee [1891] 3 Ch 422 at 429 per Stirling J. Re Pink [1912] 2 Ch 528 at 535 per Cozens-Hardy MR (‘But when you find that the debtor is constituted one of the executors of the testator, and thus acquires at law a title to it, then the Court feels itself at liberty to look at the matter and to say whether there is in the circumstances any ground for holding that the equitable liability of the executor to account ought not to be given effect to, because the Court is satisfied that it is contrary to the wishes and intentions of the testator’; emphasis supplied); Re James [1935] 1 Ch 449 at 451 per Farwell J (noting that, as he was ‘completely satisfied’ on the evidence that there was ‘a continuing intention in the donor up to the time of his death to give the property to the defendant’, the defendant ‘by her appointment as one

107. 108.

109. 110. 111. 112.

113.

114. 115.

116. 117. 118. 119.

of the administratrices has got the legal estate vested in her and she needs no assistance from equity to complete her title’). Re Stewart [1908] 2 Ch 251 at 255 per Neville J; Blackett v Darcy (2005) 62 NSWLR 392; [2005] NSWSC 65; BC200500367 at [34] per Young CJ in Eq. Benjamin v Leicher (1998) 45 NSWLR 389 at 401–2; BC9804629 per Cohen J; Stone v Registrar of Titles [2012] WASC 21; BC201200152 at [140] per Simmonds J (although refusing to apply the rule to perfect an attempted gift of a joint tenant’s interest in real property, as the death of a donor causes any interest as joint tenant to accrue to the surviving joint tenant, so that the estate of the donor cannot include that interest: at [142], [143]). See, for example, Re Gonin (deceased) [1979] Ch 16 (where the issue was whether there was a continuing intention on the part of the deceased to gift her daughter-executor the deceased’s house and contents; Walton J found such a continuing intention vis-à-vis most of the contents but not the house, as evidence of intention relating to the house had changed over time: at 35–6). Re Pink [1912] 2 Ch 528. Benjamin v Leicher (1998) 45 NSWLR 389 at 401; BC9804629 per Cohen J. Re Pink [1912] 2 Ch 528 at 538 per Kennedy LJ (emphasis supplied). Re Freeland [1952] 1 Ch 110 at 115 per Evershed MR (emphasis supplied) (where the English Court of Appeal held that an inter vivos imperfect gift of the deceased’s motor vehicle to the plaintiff had not been perfected by the plaintiff’s appointment as an executor of the deceased’s will, given evidence that the deceased had lent the vehicle to the defendant, who retained its possession at the date of the deceased’s death: see at 117–18 per Evershed MR, at 121–2 per Jenkins LJ, at 123 per Morris LJ). Matthews v Matthews (1913) 17 CLR 8 at 19; BC1300021 per Barton ACJ, with whom Gavan Duffy and Rich JJ agreed. See also at 32–3 per Isaacs and Powers JJ (who otherwise dissented in the application of the rule to the particular case) (‘An imperfect gift of property connotes that its owner has, contemporaneously or antecedently, done some act which couples itself with his communicated intention at some given moment, of immediately transferring his legal right to the property to another, who accepts it, the act done by the owner being, however, for some reason, insufficient in law to effect the intended transfer, which consequently remains incomplete’). Re Stewart [1908] 2 Ch 251 at 255 per Neville J. Re Innes [1910] 1 Ch 188 at 193–4 per Parker J (‘It seems to me that it would be exceedingly dangerous to try to give effect by the appointment of an executor to what is at most an announcement of what a man intends to do in the future, and is not intended by him as a gift in the present which though failing on technical considerations may be subsequently perfected’). See, for example, Cope v Keene (1968) 118 CLR 1; BC6800230 (involving the transfer of the fee simple in land in remainder expectant on the death of the donor, to be registered by the donor’s solicitor, but the donor died before the transfer was lodged for registration; the High Court held that this imperfect gift had not been perfected by the appointment of the donees as executors of the donor’s will, Kitto J remarking that ‘Strong v Bird has nothing to say in regard to an intention which remains until the death a mere proposal to make a gift by a future act’: at 8); Public Trustee v Jones (2007) 251 LSJS 364; [2007] SASC 390; BC200709666 at [71], [72] per Layton J. See, for example, Rutledge v Sheridan [2010] QSC 257; BC201005138 at [24], [25] per Daubney J. Re Halley (1959) 43 MPR 79 (Nfld) (Maritime Provinces Reports). Blackett v Darcy (2005) 62 NSWLR 392; [2005] NSWSC 65; BC200500367 at [35]–[37] per Young CJ in Eq. Cope v Keene (1968) 118 CLR 1 at 9; BC6800230 per Kitto J. As to family provision claims, see Pt III.

120. 121. 122. 123.

124. 125. 126. 127. 128.

129.

130. 131. 132.

133.

134. 135.

Re James [1935] 1 Ch 449. See 11.78. Re Gonin (deceased) [1979] Ch 16 at 35 per Walton J. Blackett v Darcy (2005) 62 NSWLR 392; [2005] NSWSC 65; BC200500367 at [37] per Young CJ in Eq (adding that the rule ‘should not in this 21st century be extended at all’); Rutledge v Sheridan [2010] QSC 257; BC201005138 at [23] per Daubney J; J Jaconelli, ‘Problems in the Rule in Strong v Bird’ [2006] Conv 432 (who maintains that the rule ‘is not rooted in any clear moral principle or common sense notion’, and that the founding case itself did not even establish many of its main features: at 450). J D Heydon and M J Leeming, Cases and Materials on Equity and Trusts, 8th ed, LexisNexis Butterworths, Australia, 2011, p 164. See 14.19. Re Akerman [1891] 3 Ch 212 at 219 per Kekewich J. (1839) 4 My & Cr 442; 41 ER 171. See Williams, Mortimer and Sunnucks, pp 904–7. Re Peruvian Railway Construction Co Ltd [1915] 2 Ch 144 at 150 per Sargant J; Gray v Gray (2004) 12 BPR 22,755; [2004] NSWCA 408; BC200407673 at [97] per Young CJ in Eq, with whom Sheller and Bryson JJA agreed (‘the general equitable principle is not confined to the Cherry v Boultbee situation, but applied whenever a person seeks equity but owes money in a case where the creditor is able to claim repayment of the debt without having to bring an action to recover it, at least where the relevant limitation acts bars only the remedy’); Pyrenees Vineyard Management Ltd v Frajman (2008) 69 ACSR 95; [2008] VSC 552; BC200810739 at [39] per Judd J (‘the person controlling a fund, whether as trustee, liquidator or in some other capacity, may deduct from the entitlement of a beneficiary any amount the beneficiary is obliged to contribute to the fund. The person administering the fund may invoke the rule to protect the fund from claims to a distribution by beneficiaries with an unsatisfied obligation to the fund’). See further Meagher, Gummow and Lehane, pp 1117–21. J D & K J Zohs Properties Pty Ltd v Ferme [2015] SASC 55; BC201502352 at [72] per Stanley J. See also Re SSSL Realisations (2002) Ltd (in liq) [2006] Ch 610; [2006] EWCA Civ 7 at [12] per Chadwick LJ (‘equity requires that a person cannot share in a fund in relation to which he is also a debtor without first contributing to the whole by paying his debt’). Perpetual Trustees (WA) Ltd v Equus Corp Pty Ltd (SC(NSW), Young J, 5 March 1998, unreported) BC9800921 at 7. See, for example, Hawkins v Barkley-Brown (No 2) [2010] NSWSC 395 at [18] per Slattery J; Smith v Seaman [2015] WASC 420; BC201511002 at [25] per Gething AM. Cherry v Boultbee (1839) 4 My & Cr 442 at 447; 41 ER 171 at 173. See also Courtenay v Williams (1843) 15 LJ (Ch) 204 at 207–8 per Lord Lyndhurst LC; Re Akerman [1891] 3 Ch 212 at 219 per Kekewich J (‘Nothing is in truth retained by the representative of the estate; nothing is in strict language set off; but the contributor is paid by holding in his own hand a part of the mass, which, if the mass were completed, he would receive back’). See, for example, Re Taylor [1894] 1 Ch 671 at 674 per Chitty J; Re Savage [1918] 2 Ch 146 at 148 per Sargant J. Cf Re Akerman [1891] 3 Ch 212 at 219 per Kekewich J; Hawkins v Barkley-Brown (No 2) [2010] NSWSC 395 at [18] per Slattery J. Re Savage [1918] 2 Ch 146 at 149 per Sargant J. See, for example, Re Kaupthing Singer and Friedlander Ltd (No 2) [2012] 1 AC 804; [2011] UKSC 48 at [8] per Lord Walker; Re Lehman Bros International (Europe) (in administration) (No 4) [2015] Ch 1; [2014] EWHC 704 (Ch) at [183] per David Richards J.

136. Gray v Gray (2004) 12 BPR 22,755; [2004] NSWCA 408; BC200407673 at [94] per Young CJ in Eq, with whom Sheller and Bryson JJA agreed. 137. Re Taylor [1894] 1 Ch 671 at 674 per Chitty J (but on the facts, involving a debtor being a specific legatee of the profits of a business represented by moneys in the hands of the executors, his Lordship held that the executors could retain those moneys as against the debt). 138. See, for example, Ballard v Marsden (1880) 14 Ch D 374 (where the executors had set apart and appropriated assets to meet a legacy, Fry J held that they could not retain any part thereof to meet a debt owed by the legatee to the general estate of the testator, and that the contrary view would involve ‘frustrating the intentions of all the parties’: at 377–8). 139. See, for example, Re Rees (1889) 60 LT 260 (where the debt did not accrue until after the time for payment of the legacy; Kekewich J noted that ‘at the moment of death the testator could not have enforced his right, and not having been able to enforce it, he cannot give it to his executors’: at 261); Re Abrahams [1908] 2 Ch 69 (where the debt due to the testator was payable in instalments, whereas the debtor’s right to receive the residuary share was an immediate right; Warrington J ruled that ‘the debtor is entitled to receive that share, and that the executors are not entitled to retain it as against any future [instalments] which may have to be made’: at 73–4). 140. See, for example, Re Knapman (1881) 18 Ch D 300; Miller v Jones [2002] NSWSC 1200; BC200208341 at [40] per McLaughlin M; Public Trustee v Gittoes [2005] NSWSC 373; BC200502360 at [138]–[143] per White J. 141. See, for example, Courtenay v Williams (1846) 15 LJ (Ch) 204 at 207 per Lord Lyndhurst LC; Re Cordwell’s Estate (1875) LR 20 Eq 644 at 646–7 per Bacon VC (‘Until the debtor discharges his duty to the estate by paying the debt which he owes to it, he can have no right or title to any part of it under the statute [of limitations]’). 142. Benson v Maude (1821) 6 Madd 15 at 15; 56 ER 994 at 994 per Sir John Leach VC. 143. See Williams, Mortimer and Sunnucks, Ch 69. 144. Re Barr Smith (deceased) [1917] SALR 1 at 21 per Murray CJ. See also Brooke v Lewis (1822) 6 Madd 358; 56 ER 1128; Johnson v Newton (1853) 11 Hare 160 at 168; 68 ER 1230 at 1233 per Page Wood VC (‘[executors] are allowed by the rule of law one year before satisfying the claims of parties under the will’); Wightwick v Lord (1857) 6 HLC 217 at 235; 10 ER 1278 at 1286 per Lord Wensleydale (‘the executor, before the end of the first year after the testator’s death, ought, if possible, to convert all the assets into money, and pay the funeral and testamentary expenses, debts, and legacies, and hand over the clear residue to the residuary legatee, or, if the residue be bequeathed to one for life, to secure the capital … for the benefit of those ultimately entitled, and if from any cause the assets cannot be sold, so as to effect this purpose, the right of the tenant for life will commence from that date’). 145. In the Estate of Keenan (1899) 20 LR (NSW) (B & P) 10 at 13–14 per Walker J. 146. Hiddingh (Heirs) v De Villiers Denyssen (1887) 12 App Cas 624 at 631 per Lord Hobhouse (PC). 147. Grayburn v Clarkson (1868) LR 3 Ch App 605 at 606 (emphasis in original). See also Sitwell v Bernard (1801) 6 Ves 520 at 539–40; 31 ER 1174 at 1182 per Lord Eldon LC; Hiddingh (Heirs) v De Villiers Denyssen (1887) 12 App Cas 624 at 633 per Lord Hobhouse (PC). 148. See, for example, Re Tankard [1942] 1 Ch 69 at 72–3 per Uthwatt J. 149. See, for example, Grayburn v Clarkson (1868) LR 3 Ch App 605; Sculthorpe v Tipper (1871) LR 13 Eq 232 (each involving executors who retained shares in unlimited liability companies well beyond the executor’s year, and were held liable to the estates for losses suffered when the companies in question were wound up). Cf Williams v Stephens (SC(NSW), Young J, 24 March 1986, unreported) BC8601164 at 6 (where the grant of probate was not made for more than a year after the deceased’s

150. 151.

152. 153. 154. 155. 156. 157. 158. 159. 160. 161. 162. 163. 164. 165. 166. 167.

168. 169. 170.

death, his Honour remarked that ‘[t]his would be a circumstance why some time should be allowed by the Court after the grant for the executor to do what is necessary’). Tas s 43(1); Vic s 49. These provisions are in the same terms as Administration of Estates Act 1925 (UK) s 44. Independent of provisions of this kind, in Angerstein v Martin (1823) Turn & R 232 at 241; 37 ER 1087 at 1090 Lord Eldon LC disclaimed knowledge of any case ‘which prevents executors, if they choose, from paying legacies, or handing over the residue within the year, and if it is clear, currente anno, that the fund for the payment of debts and legacies is sufficient, there can be no inconvenience in so doing’. More recently it has been judicially observed that ‘[t]he Court and the public expect that routine probate work will be handled speedily’ (Williams v Stephens (SC(NSW), Young J, 24 March 1986, unreported) BC8601164 at 3), the inference being that personal representatives should, where it is possible and appropriate, perform their role before the expiry of the executor’s year. Indeed, the terms of the relevant Queensland legislation — which require personal representatives to ‘distribute the estate of the deceased, subject to the administration thereof, as soon as may be’ (Qld s 52(1)(d)) — reflect this admonition, and have been endorsed as a candidate for inclusion in model national legislation, minus the preservation of the executor’s year in Qld s 52(1A) (see QLRC, Report 65, Vol 1, pp 379–81). Found in Qld s 52(1). Qld s 52(1)(d). Qld s 52(1A). SA s 65(3). SA s 65(1). SA s 66. In Tasmania this is addressed by a requirement that a grant be made to more than one administrator (or a trustee company) where there is a minority interest: Tas s 14(1). Re Estate of Richter (deceased) [2011] SASC 124; BC201106037 at [15] per Gray J; Re Estate of Rake (deceased) [2012] SASC 87; BC201203728 at [10] per Stanley J. SA s 65(2). SA s 65(2a). SA s 65(5). SA s 67(1), (2). Any such order may be obtained without notice to any interested party on the application of the (proposed) administrator: SA s 67(3). SA s 67(5). (1992) 165 LSJS 133. (2005) 93 SASR 415; [2005] SASC 497; BC200511236 at [40]. Re Estate of Richter (deceased) [2011] SASC 124; BC201106037 at [19], [20] per Gray J; Re Estate of Estall (deceased) [2011] SASC 188; BC201108184 at [12] per Gray J; Re Estate of Rake (deceased) [2012] SASC 87; BC201203728 at [16]–[20] per Stanley J; Re Estate of Lee (deceased) [2012] SASC 139; BC201206100 at [25]–[31] per Stanley J; Re Estate of Loy (deceased) [2012] SASC 140; BC201206099 at [27]–[29] per Stanley J; Re Estate of Roberts (deceased) [2012] SASC 138; BC201206101 at [23]–[27] per Stanley J; Re Estate of Bannon (deceased) [2014] SASC 12; BC201400146 at [25] per Stanley J; Re Estate of Nyunt (deceased) [2015] SASC 14; BC201500441 at [29] per Gray J; Re Pike (deceased) [2015] SASC 166; BC201510172 at [25] per Stanley J; Re Blandis (deceased) [2016] SASC 155; BC201608473 at [13] per Stanley J. QLRC, Report 65, Vol 1, p 393. QLRC, Report 65, Vol 1, pp 393–4. As to the difference between ‘general’ and ‘specific’ legacies, see 7.4–7.6.

171. Re Wyles [1938] 1 Ch 313 at 316 per Farwell J (‘in the ordinary case of an insufficient estate where there is no residue, and the legacies have to abate equally, no question of interest can arise, because there is no surplus out of which interest can be paid’). 172. See 14.34. 173. As to the concept of a ‘pecuniary’ legacy, see 7.9. The rule is different where the legacy is charged on realty. The case often cited as authority for this proposition is Spurway v Glynn (1804) 9 Ves 483; 32 ER 689. There interest was held to accrue at 4 per cent per annum from the date of the testator’s death, although the case did involve a devise to raise and pay ‘with all convenient speed’ after the testator’s death. 174. Re Wyles [1938] 1 Ch 313 at 315 per Farwell J. See also Beckford v Tobin (1749) 1 Ves 308 at 310; 27 ER 1049 at 1050 per Lord Hardwicke LC (‘the interest of a general legacy, for which no time is appointed, is from the end of one year’); Wood v Penoyre (1806) 13 Ves 325 at 333–4; 33 ER 316 at 319–20 per Sir William Grant MR; Lord v Lord (1867) LR 2 Ch App 783 at 789 per Lord Cairns LJ (‘where no time for payment is fixed, the legacy is payable at, and therefore bears interest from, the end of a year after the testator’s death, even though it be expressly made payable out of a particular fund which is not got in until after a longer interval’); Re Ellis [2015] WASC 77; BC201501125 at [30] per E M Heenan J. See, for example, Re Tyson (1906) 7 SR (NSW) 91; Permanent Trustee Co of New South Wales Ltd v Royal Prince Alfred Hospital (1944) 62 WN (NSW) 137; Lewis v Vincent [2008] 1 NZLR 121. 175. Qld s 52(1)(e); SA s 120A, as to which see 14.40. 176. Pearson v Pearson (1802) 1 Sch & Lef 10 at 11 per Lord Redesdale LC. As to the executor’s year, see 14.27. 177. Re Wyles [1938] 1 Ch 313 at 315–16 per Farwell J; Re Ellis [2015] WASC 77; BC201501125 at [30] per E M Heenan J. 178. Re Pollock [1943] 1 Ch 338 at 340–1 per Bennett J. 179. Re Pollock [1943] 1 Ch 338 at 340 per Bennett J; Re Gertsman (deceased) [1966] VR 45 at 47 per Pape J. 180. Re George (1877) 5 Ch D 837 at 843 per James LJ. 181. See 14.37. 182. Clark v Sewell (1944) 3 Atk 96 at 99; 26 ER 858 at 860 per Lord Hardwicke LC. 183. QLRC, Report 65, Vol 2, p 193. 184. Wood v Penoyre (1806) 13 Ves 325 at 333; 33 ER 316 at 320 per Sir William Grant MR. 185. Donovan v Needham (1846) 9 Beav 164 at 167; 50 ER 306 at 307 per Lord Langdale MR. See also Lord v Lord (1867) LR 2 Ch App 783 at 789 per Lord Cairns LJ (‘a legacy payable at a future day carries interest only from the time fixed for payment’); Gleeson v Gleeson (1886) 12 VLR 783 at 787 per Webb J (who noted that ordinarily where payment of a legacy is postponed the legatee is not entitled to interest until the time of payment arrives); Walford v Walford [1912] AC 658 at 663–4 per Viscount Haldane LC; Re McGeorge (deceased) [1963] Ch 544 at 549–50 per Cross J. 186. [1972] Qd R 149 at 158–9 per Lucas J. 187. [1936] WN 252. 188. (1863) 1 H & M 425; 71 ER 185. 189. QLRC, Report 65, Vol 2, p 193. 190. (1909) 101 LT 508 at 510 per Cozens-Hardy MR, with whom Moulton and Farwell LJJ concurred. 191. As to the position where the legatee is a child of the testator or a person to whom the testator stands in loco parentis, see 14.37. 192. See, for example, Beckford v Tobin (1749) 1 Ves 308; 27 ER 1049 (where the testator directed his

193. 194. 195. 196. 197. 198.

199.

200.

trustees to apply £4000 to the uses of a boy, his maintenance and education to be paid out of the interest on the money; Lord Hardwicke LC held that this case came within the exception to the default rule, reasoning that, unless interest were made to run from the testator’s death, the child, were he to die within the year, ‘would have no maintenance; then no one could expend anything thereout for him, and whoever had maintained him would have lost his money’: at 311; 1051); Re Churchill [1909] 2 Ch 431 (where the legacy was to an infant once he reached the age of 21, but power was given to the executors to apply it for maintenance of the infant); Re Smith (deceased) [1918] SALR 1 at 8–9, 13 per Murray CJ (involving legacies contingent on the testator’s grandchildren and great-grandson attaining the age of 21, with power to apply the income during the suspense of vesting for their maintenance, education or benefit; but for legatees who had reached the age of 21 at the date of the testator’s death, and therefore whose entitlement to the legacy had vested, the default rule applied). Re Medlock (1886) 55 LJ (Ch) 738; Re Woodin [1895] 2 Ch 309; Re Boulter [1918] 2 Ch 40 at 44–5 per Younger J; Re Gertsman (deceased) [1966] VR 45 at 48 per Pape J. Re Dickson (1885) 29 Ch D 331 at 334, 336 per Cotton LJ; Re Eyre [1917] 1 Ch 331 at 354 per Younger J. Re Inman [1893] 3 Ch 518 at 520 per Kekewich J. Johnston v O’Neill (1879) 3 LR (Ir) 476; Re Snaith [1894] WN 115. Gibson v Bott (1802) 7 Ves 89 at 96; 32 ER 37 at 40 per Lord Eldon LC; Re Smith (deceased) [1917] SALR 1 at 19 per Murray CJ. See, for example, Re Stokes [1928] 1 Ch 716 at 720 per Tomlin J. The historical formulation of this exception limited its application to legitimate children of the testator: Beckford v Tobin (1749) 1 Ves 308 at 310; 27 ER 1049 at 1050 per Lord Hardwicke LC (reasoning that the exception does not extend to an illegitimate child for two reasons: (1) from the rule of law considering an illegitimate child as no relation, ‘having indeed no civil blood’; and (2) ‘it is not fit for a court of justice to give the same countenance to such children as in the case of legitimate children’, and ‘to discountenance practices of that kind, the court has taken them to be out of all such provisions’). The reasons given for the limitation of the exception to legitimate children no longer have validity in view of statute that has breached the formed division between legitimacy and illegitimacy: see Parentage Act 2004 (ACT); Status of Children Act 1996 (NSW); Status of Children Act 1978 (NT); Status of Children Act 1978 (Qld); Family Relationships Act 1975 (SA); Status of Children Act 1974 (Tas); Status of Children Act 1974 (Vic); Wills Act 1970 (WA) Pt IX. Wynch v Wynch (1788) 1 Cox 433 at 434–5; 29 ER 1236 at 1238 per Lord Kenyon. In Wynch the testator bequeathed £10,000 to each of his daughters, to be paid to them at the earlier of their attaining the age of 21 years or their wedding day, and then directed his trustees to apply such sums of money, out of his personal estate, towards the maintenance and education of his daughters, as to them should seem fit, not exceeding the interest of their respective portions. Lord Kenyon declared that the daughters were not entitled to interest on their legacies until the same became payable, but only to maintenance. See also Hearle v Greenbank (1749) 3 Atk 695; 26 ER 1200; Donovan v Needham (1846) 9 Beav 164; 50 ER 306. Beckford v Tobin (1749) 1 Ves 308 at 310; 27 ER 1049 at 1050 per Lord Hardwicke LC; Donovan v Needham (1846) 9 Beav 164 at 167; 50 ER 306 at 307 per Lord Langdale MR; Re Bowlby [1904] 2 Ch 685 at 706 per Romer LJ; Re Churchill [1909] 2 Ch 431 at 433 per Warrington J; Re Black (deceased) [1911] VLR 280 at 282 per Madden CJ (FC); Re Smith (deceased) [1918] SALR 1 at 7 per Murray CJ; Re Boulter [1918] 2 Ch 40 at 44 per Younger J; Re Gertsman (deceased) [1966] VR 45 at 47 per Pape J. See, for example, Gleeson v Gleeson (1886) 12 VLR 783.

201. 202. 203. 204. 205. 206. 207.

208. 209. 210. 211. 212. 213. 214. 215. 216. 217. 218. 219. 220. 221. 222. 223. 224. 225.

226. 227. 228. 229. 230. 231.

(1712) Prec Ch 337; 24 ER 158 (emphasis in original). See 14.36. QLRC, Report 65, Vol 2, p 191. (1801) 6 Ves 520; 31 ER 1174. Sitwell v Bernard (1801) 6 Ves 520 at 540; 31 ER 1174 at 1183. Beckford v Tobin (1749) 1 Ves 308 at 311; 27 ER 1049 at 1051 per Lord Hardwicke LC; Lewis v Vincent [2008] 1 NZLR 121 at [44]–[58] per Andrews J. See, for example, Re Tyson (1906) 7 SR (NSW) 91 at 96 per Street J; Re Black (deceased) [1911] VLR 280 at 283 per Madden CJ (FC); Permanent Trustee Co of New South Wales Ltd v Royal Prince Alfred Hospital (1944) 62 WN (NSW) 137. Cf Re Hardgrave [1978] Qd R 471 (4 per cent from date of death in relation to minors, but 8 per cent in respect of the period the respective interests vested). ACT s 55A(1). NSW s 84A(1), (3). Before 1 March 2010 s 84A set the rate of interest on legacies at 6 per cent per annum. QLRC, Report 65, Vol 2, pp 188–9. As to the power to appropriate, see 13.15–13.21. ACT s 55A(2); NSW s 84A(2). Qld s 52(1)(e). Qld s 52(1A). QLRC, Report 65, Vol 2, pp 187–8. SA s 120A(1). The rate is the average mid 180-day bank bill swap reference rate published by the Australian Financial Markets Association Ltd as at the first business day of the relevant period: Administration and Probate Regulations 2009 (SA) reg 3. SA s 120A(4). WA s 143A. NT RSC r 78.04. Vic RSC r 78.05. Tas RSC rr 5A(1), 960. See 14.13. See 7.10. Orr v Kaines (1750) 2 Ves 194; 28 ER 125. (1867) LR 4 Eq 295. See Re Hayward [1934] SASR 364 at 380–5 per Murray J; Re Gellibrand’s Will (1939) 34 Tas LR 1 at 12–16 per Morris ACJ; Hassell v Perpetual Trustees and Agency Co (WA) Ltd (1952) 86 CLR 513 at 526; BC5200530 per Dixon CJ, Webb, Fullagar and Kitto JJ; Princess Anne of Hesse v Field [1963] NSWR 998 at 1017 per Jacobs J. ACT s 41D; NSW s 46D; NT s 58; Trusts Act 1973 (Qld) s 78; Trustee Act 1958 (Vic) s 74; Trustees Act 1962 (WA) s 104. See Princess Anne of Hesse v Field [1963] NSWR 998. Queensland Law Reform Commission, The Law Relating to Trusts, Trustees, Settled Land and Charities, Report No 8, 1971, p 58. Orr v Kaines (1750) 2 Ves 194; 28 ER 125; Hilliard v Fulford (1876) 4 Ch D 389 at 394 per Jessel MR. Brown v Holt [1961] VR 435 at 442 per Pape J. See 14.55. Dibbs v Goren (1849) 11 Beav 483; 50 ER 904; Re Ainsworth [1915] 2 Ch 96; Palmer v Permanent Trustee Co (1916) 16 SR 162 at 166–7 per Harvey J; Re Musgrave [1916] 2 Ch 417 at 423 per Neville J; Harris v Harris (1919) 20 SR (NSW) 61 at 67–8 per Harvey J; Macphillamy v Fox (1932) 32 SR (NSW) 427 at 431–3 per Harvey CJ in Eq. It stands to reason, though, that legatees who have been

232. 233.

234. 235.

236. 237. 238. 239.

240.

241. 242. 243.

244. 245. 246. 247.

underpaid, at least for a time, should be able to recover interest from the executor as regards the amount underpaid, for the period they have been kept out of funds. [1905] 1 Ch 76 at 81. Re Horne [1905] 1 Ch 76 at 80. His Lordship’s reference to mistake ‘of fact’ in this context reflected the then distinction applicable to recovery of moneys paid under mistake of fact (recoverable) as opposed to under mistake of law (irrecoverable). The modern law, both in the United Kingdom and Australia, recognises the recoverability of payments made under mistake of law (see K Mason, J W Carter and G J Tolhurst, Mason and Carter’s Restitution Law in Australia, 3rd ed, LexisNexis Butterworths, Australia, 2016, Ch 4), thereby removing the historical distinction in this context. Re Horne [1905] 1 Ch 76 at 81. See, for example, Macphillamy v Fox (1932) 32 SR (NSW) 427 at 434 per Harvey CJ in Eq; Re Robertson (deceased) [1953] VLR 685 at 688 per Martin J. See also Re Ainsworth [1915] 2 Ch 96 at 105 per Joyce J (who in this context remarked that ‘in these days innocent trustees acting bona fide are not treated with the severity of former days’); Re Musgrave [1916] 2 Ch 417 at 425 per Neville J. (1932) 32 SR (NSW) 427. Re Robertson (deceased) [1953] VLR 685 at 689 per Martin J. Re Robertson (deceased) [1953] VLR 685 at 689 per Martin J. See, for example, Davies v National Trustees Executors and Agency Co of Australasia Ltd [1912] VLR 397 at 410 per Cussen J (who was influenced by a finding that the overpaid beneficiary ‘took an active part in the division which resulted in his takeing [the] surplus of property’). Whitaker v Kershaw (1890) 45 Ch D 320 at 325 per Cotton LJ; Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115 at 127 per Lord Romer (PC) (‘if a trustee or other person in a fiduciary capacity has received notice that a fund in his possession is, or may be, claimed by A, he will be liable to A if he deals with the fund in disregard of that notice should the claim subsequently prove to be well founded’). Whitaker v Kershaw (1890) 45 Ch D 320 at 325 per Cotton LJ, at 329 per Fry LJ; Brown v Holt [1961] VR 435 at 442 per Pape J. Jervis v Wolferstan (1874) LR 18 Eq 18 at 25–6 per Jessel MR. In the Will of Thompson [1910] VLR 251 at 254 per A’Beckett J (speaking in terms of an executor’s duty ‘to retain or set apart sums sufficient to pay contingent legacies when they become due’); Re Yorke (deceased) [1997] 4 All ER 907 at 919, 921 per Lindsay J; Public Trustee v Bebich [2014] WASC 340; BC201407922 at [18] per Le Miere J; Ingrey v King [2016] WTLR 131; [2015] EWHC 2137 (Ch) at [16]–[20] per Judge Walden-Smith. See, for example, Taylor v Taylor (1870) LR 10 Eq 477 (where executors who paid a legacy without providing for any contingent liability were held liable to pay the liability in question once the contingency occurred); Tuohey v Tuohey [2002] VSC 180; BC200202771 at [75]–[78] per McDonald J. ACT s 66(1), (2); NSW s 94(1), (2); NT s 98(1), (2); Trusts Act 1973 (Qld) s 66(1); Trustee Act 1936 (SA) s 30(1); Trustee Act 1958 (Vic) s 32(1); Trustees Act 1962 (WA) s 62(1). ACT s 67; NSW s 95; NT s 99; Trusts Act 1973 (Qld) s 66(2); Trustee Act 1936 (SA) s 30(2); Trustee Act 1958 (Vic) s 32(2); Trustees Act 1962 (WA) s 62(3). See 12.49. Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508; BC200302934 at [47] per Campbell J (numbering supplied) (aff’d Gonzales v Claridades (2003) 58 NSWLR 211; [2003] NSWCA 227; BC200304834). See, for example, Ex parte Schneider (2009) 3 ASTLR 61; [2009] NSWSC 566; BC200905703 (where Ward J ruled that as: (1) nothing had arisen out of the determination of foreign proceedings over the estate that would affect or cut down the legacies

248.

249. 250.

251. 252. 253. 254.

255. 256. 257. 258. 259. 260. 261. 262. 263. 264. 265. 266. 267. 268. 269. 270. 271. 272. 273. 274.

under the Australian will; (2) there was no doubt as to the identity of the legatees; (3) the time for any application in relation to the deceased’s estate under family provision legislation had expired; and (4) the remaining tasks of administration may conceivably take some time; the case fell squarely within the class of case in which it may be the executors’ duty to make an interim distribution: at [55]). Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508; BC200302934 at [50] per Campbell J (aff’d Gonzales v Claridades (2003) 58 NSWLR 211; [2003] NSWCA 227; BC200304834). As to this duty, see 12.1. See, for example, Re Yorke (deceased) [1997] 4 All ER 907; Ex parte Schneider (2009) 3 ASTLR 61; [2009] NSWSC 566; BC200905703. As to the right of personal representatives to seek the court’s advice and direction generally, see 13.34–13.39. See, for example, Bullas v Public Trustee [1981] 1 NSWLR 641; Ex parte Schneider (2009) 3 ASTLR 61; [2009] NSWSC 566; BC200905703 at [70]–[76] per Ward J. See P.16. ACT s 44; NSW s 44; NT s 24A; Qld s 62; SA s 33A; Tas s 29 (limited to ‘advancement or benefit’); Vic s 38; WA s 59. See Jacobs pp 490–503. The person must survive the deceased for 30 days or, in New South Wales, if another period for survival appears in the will, within that period. However, if the survivor does not survive the deceased person for this period, the distribution is to be treated as an administration expense: NSW s 92A(6); Qld s 49A(6). NSW s 92A(1), (2); Qld s 49A(1), (2). NSW s 92A(3); Qld s 49A(3). As to applications for family provision orders, see Chapter 17. NSW s 92A(4); Qld s 49A(4). NSW s 92A(5); Qld s 49A(5). WA s 17(1). WA s 17(3). This explains why the National Committee for Uniform Succession Laws recommended against including a provision of this kind in model legislation: QLRC, Report 65, Vol 1, p 502. See, for example, Balkin v Peck (1998) 43 NSWLR 706; BC9803370. See further Dal Pont, pp 711– 13; Jacobs, pp 514–15. See 12.49. Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115 at 127–8 per Lord Romer (PC). As to family provision claims in this context, see 17.48, 17.49. Re Long [1951] NZLR 661 at 672 per Stanton J. Application for a Declaration of Paternity by ‘K’ (2002) 12 NTLR 155; [2002] NTSC 63; BC200207165 at [30] per Angel J. QLRC, Report 65, Vol 2, p 270. QLRC, Report 65, Vol 2, p 298. QLRC, Report 65, Vol 2, pp 302–3. ACT s 64(1); NT s 96(1). As to the equivalent provisions in the trustee legislation, see Trustee Act 1925 (ACT) s 60; Trustee Act 1893 (NT) s 22. 22 & 23 Vict c 35. That is, before the relevant section was replaced pursuant to the Wills, Probate and Administration (Amendment) Act 1977 (NSW). NSW s 92(1) (footnote supplied). Cf Trustee Act 1925 (NSW) s 60. A notice under NSW s 92 must be published: (a) if the notice relates to the intended distribution of

275.

276.

277.

278. 279. 280. 281. 282. 283. 284.

285.

the estate of a deceased person in relation to which a grant of representation has been made or resealed by the court — on the New South Wales Online Registry website; or (b) otherwise — in a Sydney daily newspaper: NSW RSC Pt 78 r 93. In any event, under the original formulation referring to ‘creditors and others’, the term ‘others’ had been interpreted to include persons claiming as beneficiaries: see, for example, Newton v Sherry (1876) 1 CPD 246 (where it was held that the statutory notice provisions protect the administrator of an intestate estate against a claim that a particular person is entitled to part of the estate upon intestacy, because the legislation relates to claims by ‘creditors and others’ against the estate: see at 257 per Archibald J, at 257–8 per Lindley J). This change, it appears, makes explicit that the section has no application to a claim challenging the executor’s right to administer the estate, say, because a person claims as beneficiary under a prior will and challenges the validity of the will of which probate was granted: Guardian Trusts and Executors Co New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115 at 125 (PC); Bramston v Morris (SC(NSW), Powell J, 20 August 1993, unreported) BC9303644 at 11; Dickman v Holley [2013] NSWSC 18; BC201300224 at [181] per White J. Trustee Act 1925 (ACT) s 60(5) (which applies to personal representatives: s 4(1)); NT s 96(2) (and see also Trustee Act 1893 (NT) s 22(1)). The Northern Territory legislation adds that no action lies against the administrator of an intestate estate of an intestate Aboriginal by reason of its whole or partial distribution pursuant of an order: NT Pt III Div 4A (‘Intestate Aboriginals’) (see 9.78), or if: (a) the distribution was made before the administrator had notice of an application for such an order; and (b) before making the distribution, the administrator had given notices under NT s 96(1) and the time specified in the (last of the) notices for the sending in of claims had expired: NT s 96(3). ACT s 64(2) (see Births, Deaths and Marriages Registration Act 1997 (ACT)); NSW s 92(3) (see Births, Deaths and Marriages Registration Act 1995 (NSW) s 50). Status of Children Act 1978 (NT) s 7; Status of Children Act 1978 (Qld) s 6; Family Relationships Act 1975 (SA) s 12; Status of Children Act 1974 (Tas) s 6; Status of Children Act 1974 (Vic) s 6; WA s 47A. QLRC, Report 65, Vol 2, p 288. QLRC, Report 65, Vol 2, p 289. (2006) 68 NSWLR 69; [2006] NSWSC 890; BC200608371 at [277], [278] (paragraph break omitted) (aff’d Ludwig v Public Trustee [2008] NSWCA 115; BC200804749). ACT s 65(1); NSW s 93(1); NT s 97(1) (see also Trustee Act 1893 (NT) s 22(2)). Equivalent provision is also made by the trustee legislation in South Australia and Tasmania: see 14.60. ACT s 65(2); NSW s 93(2); NT s 97(2). The New South Wales legislation adds a provision applicable where the NSW Trustee or a trustee company, in its capacity as a personal representative, has given the said notice and disputes any claim upon an estate. If the claimant has not, within the period of 3 months referred to in the notice, commenced proceedings to enforce the claim, the NSW Trustee or the trustee company may serve a further notice on the claimant that unless, within 2 months, the NSW Trustee or the trustee company is duly served with process of court issued in proceedings to enforce the claim, the NSW Trustee or the trustee company will distribute the estate without regard to the claim: NSW s 93(3). If, within that 2-month period, the NSW Trustee or a trustee company has not been duly served with the said process, the claimant’s claim becomes barred and irrecoverable, and the NSW Trustee or the trustee company may proceed to distribute the estate without regard to the claim: NSW s 93(4). The powers so conferred on the NSW Trustee or a trustee company are in addition to the powers exercisable under s 93(2): NSW s 93(6). Application for a Declaration of Paternity by K (2002) 12 NTLR 155; [2002] NTSC 63; BC200207165

286.

287. 288. 289. 290. 291. 292. 293. 294.

295. 296.

297. 298.

299. 300. 301. 302. 303.

at [39]–[42] per Angel J (although acknowledging the discretion to extend time, refusing to so order because beneficiaries presently entitled would suffer hardship were they prevented from immediately receiving their entitlements). Victorian Hansard, 19 October 1911, p 2023 (Sir John Mackey), preceding the introduction of an equivalent provision in the Administration and Probate Act 1911 (Vic) (see 21.35); now see Vic s 30 (discussed at 14.61). See also Re Long (deceased) [1951] NZLR 661 at 672 per Stanton J (dealing with the equivalent New Zealand provision). ACT s 67 (see also Trustee Act 1925 (ACT) s 60(6)); NSW s 95 (see also Trustee Act 1925 (NSW) s 60(6)); NT s 99 (see also Trustee Act 1893 (NT) s 22(3)). Ministry of Health v Simpson [1951] AC 251 at 276 per Lord Simonds. See Re Diplock [1948] Ch 465 (aff’d Ministry of Health v Simpson [1951] AC 251). On tracing generally, see Dal Pont, Ch 39; Jacobs, Ch 27. The general provision, namely s 63 of the Trustees Act 1962 (WA), is expressed not to apply to ‘any claim by a person to be a beneficiary under the will, or to be entitled on the intestacy, of the deceased person’: s 63(10)(b). See 14.59. As to the requirements for the manner and form of notice or advertisment, see Trusts Act 1973 (Qld) s 67(1), (2); Trustee Act 1936 (SA) s 29(1); Trustee Act 1898 (Tas) s 25A(2)–(4) (see also Tas s 54(2)–(8)); Trustee Act 1958 (Vic) s 33(1); Trustees Act 1962 (WA) s 63(1), (4)–(6). In Tasmania and Victoria, ‘any person interested’, terminology in substance no different from that in the other jurisdictions. Trusts Act 1973 (Qld) s 67(1) (being a date at least 6 weeks after the date of publication of the notice); Trustee Act 1936 (SA) s 29(1); Trustee Act 1898 (Tas) s 25A(1) (see also Tas s 54(1)); Trustee Act 1958 (Vic) s 33(1) (not less than 2 months); Trustees Act 1962 (WA) s 63(1) (not less than 1 month: s 63(3)). Trusts Act 1973 (Qld) s 67(3); Trustee Act 1936 (SA) s 29(1); Trustee Act 1898 (Tas) s 25A(1) (see also Tas ss 55, 56(3)); Trustee Act 1958 (Vic) s 33(3); Trustees Act 1962 (WA) s 63(1). Re Land Credit Co of Ireland (1872) 21 WR 135; Guardian Trust and Executive Co of New Zealand v Public Trustee of New Zealand [1942] AC 115 at 127 per Lord Romer (PC); Nowell v Palmer (1993) 32 NSWLR 574 at 582 per Handley JA; Tas s 55 (‘After the day specified in the advertisement for claims to be sent in, the personal representative shall be at liberty to pay and distribute the assets of the testator or intestate in his hands, in due course of administration, so far as respects the claims of which he then has notice, whether as a result of such claims being filed as provided by this Act or otherwise’; emphasis supplied). MCP Pension Trustees Ltd v Aon Pension Trustees Ltd [2012] Ch 1; [2010] EWCA Civ 377 at [9] per Elias LJ, with whom Dyson and Arden LJJ concurred. The National Committee on Uniform Succession Laws, although recommending model legislation in terms of s 68 of the Trusts Act 1973 (Qld), favoured replacing the phrase ‘wishes to reject’ with ‘does not accept’, in order to cover those situations where a personal representative has not actually rejected a claim, but lacks sufficient information to accept the claim: QLRC, Report 65, Vol 2, p 339. Qld s 68; WA s 64. Trustees Act 1962 (WA) s 66(1). Trustees Act 1962 (WA) s 66(3). Trustees Act 1962 (WA) s 66(5)(a). Public Trustee v Royal Society for the Prevention of Cruelty to Animals (Inc) (SC(WA), Templeman J, 25 February 1997, unreported) at 3, referring to Re Benjamin [1902] 1 Ch 723 at 725–6 per Joyce J. See

304.

305. 306. 307. 308. 309. 310. 311.

312. 313. 314. 315. 316.

317.

318. 319.

320.

also Law of Property Act 2000 (NT) s 218 (preservation of court’s jurisdiction to make Benjamin orders). Queensland Law Reform Commission, The Law Relating to Trusts, Trustees, Settled Land and Charities, Report No 8, 1971, pp 51, 52. For these reasons, inter alia, the National Committee on Uniform Succession Laws did not favour the inclusion of a separate provision for dealing with the claims of beneficiaries of deceased estates: QLRC, Report 65, Vol 2, p 290. See 14.53–14.55. Trustee Act 1936 (SA) s 29(2); Trustee Act 1898 (Tas) s 25A(5), (6). Notice may stem from the Trustee Act 1958 (Vic) s 33 or otherwise. Vic s 30(1). Vic s 30(2). See, for example, Re Barber (deceased) [1924] VLR 123 (where an extension of time was granted). Vic s 30(3) (which adds that in any case the court may impose such conditions and give such directions, including a direction as to the payment of the costs of or incidental to the application as to the court seems just). The legislation also states that, if the State Trustee refuses to recognise all or part of a claim against the estate, it must serve a notice of the refusal specifying that proceedings to enforce the claim must be instituted within 3 months: Vic s 30A(1). Such a claim has been held to extend to claims by legatees: Re Keating [2015] VSC 371; BC201507161 at [18] per McMillan J, following In the Will of Walker (1943) 43 SR (NSW) 305 at 306–7 per Nicholas CJ in Eq; Re Long (deceased) [1951] NZLR 661 at 670 (CA). If the claimant does not institute those proceedings within that time, State Trustees may distribute the deceased’s assets without regard to the claim specified in the notice of refusal, and thereafter any right of the claimant so specified is absolutely barred: Vic s 30A(2), (3). Qld s 67(4); SA s 29(2); Tas s 25A(7); Vic s 33(3); WA s 63(2). Before 1 January 2015, equivalent provision existed in Victoria (Vic s 33), which was repealed by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic). Tas s 38(1); Vic s 43(1). See 14.55. Qld s 113 (previously s 109); WA s 65. Qld s 113(3); WA s 65(8). See E Bant and P Creighton, ‘The Statutory Change of Position Defences in Western Australia’ (2003) 31 UWALR 47. The National Committee on Uniform Succession Laws has recommended that model legislation contain a change of position defence: QLRC, Report 65, Vol 2, pp 325–6. This has been interpreted, in obiter, as intended to affect only proprietary remedies available to a claimant, and not reaching personal claims: Corporate Systems Publishing Pty Ltd v Lingard (No 4) (2008) 2 ASTLR 431; [2008] WASC 21; BC200801044 at [183], [184] per Beech J (aff’d but not on this specific point: Corporate Systems Publishing Pty Ltd v Lingard [2009] WASCA 158; BC200907853). WA s 65(7). Cf Administration Act 1969 (NZ) s 50(a) (any person may exercise his or her remedies without first exercising the rights and remedies available against the trustee). QLRC, Report 65, Vol 2, p 324 (recommendation subject to the qualifications that if a proceeding is brought against a recipient but not also against the personal representative: (1) the proceeding should require the court’s leave; and (2) the recipient is entitled to contribution and indemnity from the personal representative in the amount or on the terms that the court considers appropriate, and may join the personal representative as a party to the proceeding: p 325). See generally ACT s 12A(4)–(6); NSW s 28; NT s 27(5); Qld s 33A; Tas s 42(4); Vic s 31(4). As to rectification by the court, see 2.62–2.71.

[page 521]

PART III

Family Provision

[page 523]

CHAPTER 15

Concept of Family Provision Backdrop

15.1

Brief History Origin Expansion of scope of legislation Expansion of eligible applicants Expansion to intestacies

15.5 15.5 15.7 15.7 15.8

Nature of Family Provision Jurisdiction Object of the jurisdiction Directed to moral obligations Grounded in judicial discretion balanced against freedom of testation Impact of object on statutory construction Parameters of the family provision jurisdiction Not designed to effect a ‘fair’ disposition of the estate Not designed to make equal provision for children (or other persons) Not as a reward for service per se Not to punish or redress poor previous (parental) behaviour or the righting of wrongs

15.9 15.9 15.9 15.10 15.12 15.13 15.14 15.15 15.18 15.22

Backdrop 15.1 The general law gave pre-eminence to freedom of testation, which has been described in more recent times as a ‘basic human right’.1 Accordingly, it recognised few qualifications to this freedom, highlighting the weight given to

the concept of ‘property’, and its alienability according to the wishes of its owner. Of course, if the property a testator purported to devolve testamentarily was not his or her property, the nemo dat quod non habet maxim — no one can give what he or she does not have — necessarily applied. But this was (and is) in no way limited to the testamentary environment. And if the will purports to bequeath money or property to a person who is deceased, or an institution that no longer exists, as a general rule the bequest lapses.2 This remains consistent with freedom of testation, as the lapse presupposes that the testator’s intention is incapable of being effected (except for purpose gifts evincing a general charitable intention, in which case [page 524] the general law, and subsequently statute in most jurisdictions, allowed variation of its terms to give effect to that intention).3 15.2 There were instances where the old English Court of Probate assumed a limited jurisdiction to omit (but not insert) words or figures in wills in order to correct clerical errors.4 Even courts of equity, ordinarily adept at mitigating the rigours of the common law, assumed no jurisdiction to rectify wills,5 while at the same time displaying no corresponding reticence to rectify contracts or voluntary settlements (trusts).6 The equitable doctrine of undue influence was (and remains) also ostensibly restricted to inter vivos dispositions,7 and even though the common law applied a doctrine of the same name to wills,8 its strictures marked (and still mark) it as one of limited utility. In any event, proof of undue influence itself undermines freedom of testation, as does proof of lack of capacity.9 15.3 The foregoing emphasises the importance that the general law attributed to testamentary freedom, and stands in contrast to the civil law’s various forays into impinging on this freedom, chiefly via allocating the deceased’s widow and children set shares of the deceased’s estate. Not that the common law, going back to earlier times, never restricted it. The common law system of primogeniture provided that inheritance of land devolved to the firstborn son;10 indeed, one of the reasons for the development of the ‘use’ was as

a vehicle to circumvent the restrictions inherent in primogeniture. The latter was, in any case, survived by the common law’s refusal to recognise married women’s legal capacity to hold title to property independent of their husbands, only rectified by statute in the late nineteenth century.11 This likewise operated as a de facto restriction on freedom of testation. 15.4 The headway of statute into the realm of freedom of testation has been a more recent phenomenon. Now in all jurisdictions — the first initiatives emanating from the early 1980s — statute empowers courts to rectify wills.12 Even so, these initiatives hardly undermine, but rather foster, freedom of testation, as the aim of rectifiying a will is to give effect to the intention of the testator, which has been imperfectly expressed in its terms.

Brief History Origin 15.5 The chief statutory incursion into freedom of testation, though, is family provision legislation, an exclusively twentieth-century phenomenon. Its genesis was the New Zealand Testator’s Family Maintenance Act 1900, judicially described as ‘the first family provision legislation in the common law world providing restraint on testamentary freedom’.13 This Act was replaced 6 years later,14 and the next 14 years saw each Australian state introduce equivalent [page 525] legislation,15 to be followed in 1929 in the territories.16 England was led by the Antipodes in this regard; it enacted corresponding legislation entering into force on 14 July 1939.17 The New Zealand model was also exported to various Canadian provinces.18 The relative simplicity of the original New Zealand enactment — which was only 22 lines in length — has yielded to more comprehensive modern statutory

regimes,19 but the general objective and gist of the legislation has remained constant. The 1900 Act provided that ‘[s]hould any person die, leaving a will, and without making therein adequate provision for the proper maintenance and support of his or her wife, husband or children’, the (then) Supreme Court20 could, in its discretion, ‘order that such provision as to the said Court shall seem just … be made out of the estate’. The basic concepts of ‘adequate’, ‘proper’, ‘support’ and ‘maintenance’ resonate in current Australian enactments, as does the court’s discretion to alter the effect of a will in these circumstances. 15.6 Even though various common law jurisdictions have had family provision legislation in force for decades, Australian courts make relatively infrequent reference to case law decided in other jurisdictions, even to New Zealand cases, from whence the legislation originated and a substantial body of case law has ensued. The same is the practice elsewhere, where courts also ordinarily confine themselves to case law from their own jurisdiction. It may be that the heavily fact-dependent nature of the jurisdiction challenges its amenability to precedent, though this has not prevented courts in one Australian state or territory citing case law from others. Also, as prevailing community standards heavily influence the family provision arena, caution is required in applying the community standards of one era to those in the current era,21 or from one country to another. This in turn explains the comparative recency of much of the case law cited in this Part. [page 526]

Expansion of scope of legislation Expansion of eligible applicants 15.7 The course of time has witnessed the steady expansion of those with standing to seek provision.22 As appears from the wording of the 1900 New Zealand enactment, the potential beneficiaries of family provision were originally the spouse and children of the deceased testator, which translated into its Australian equivalents (though Victoria was unique in restricting

standing to widows and under-age unmarried children). Yet it was the perceived need, as a matter of social policy, to ensure adequate provision for proper maintenance and support of the testator’s widow that was ostensibly the principal driver for the legislation. The point appears from the following parliamentary remarks preceding the introduction of the original New South Wales Act of 1916:23 It is remarkable that in Australia, where the rights of women have developed so rapidly in the matter of property, we have wiped out whatever right a woman has in the estate of her husband. The dower which existed here for many years exists no longer. It was abolished in the year 1890, and today a man may leave the whole of his property, both real and personal, to any stranger to whom he chooses to leave it. The wife may have been with him a partner for forty or fifty years. She may have assisted him in acquiring whatever wealth he possesses; yet he, dying, may will the property away and leave her dependent on the kindness of friends or the charity of the State. During his lifetime he cannot do that, for it is incumbent on him to maintain his wife. The object of the Bill is to secure that after her husband’s death the right of the wife to get sufficient from his estate to maintain her shall continue, and the right of his children shall be equally preserved.

The original legislation was, therefore, aimed primarily at the protection of women, and in particular at the potential injustice of a husband eschewing testamentary provision for his wife. That wives were most likely, at the time, to be heavily financially dependent on their husbands, and that the elapsing of time has seen this dependence subside (at least to some degree), has not disinclined the courts from persisting in treating wives, and minor children, somewhat tenderly in this regard.24 In addition to the responsibility of husbands, as the traditional breadwinners and holders of property, to provide for their wives, there is what has been described as ‘the responsibility of parentage’, coupled with recognition, as far back as 1916, of the contributions wives and children make to the accumulation of property by a husband and parent.25

Expansion to intestacies 15.8 The family provision legislation, as originally framed, applied only as regards testate estates.26 Yet the policy underscoring the legislation was one that could have application where the deceased left no will. It cannot be assumed, as a matter of course, that the rules prescribed by statute governing the distribution of an intestate’s estate27 will necessarily make adequate provision for the proper maintenance of otherwise eligible persons. The point has been illustrated by the following remarks of the Western Australian

Attorney-General upon the planned extension of the application of family provision legislation to intestacies in that state:28 The decision to extend the right of application against intestacies or partial intestacies is a logical one. The terms of a will may be irrational or indeed immoral; but the same can apply where

[page 527] distributions of estates are made under a rule of law. For example, a wife who deserted her husband and children could take the whole of a small estate at the expense of children maintained by the deceased, this being pursuant to the present law found in the Administration Act. Such a case is not uncommon and the same redress should be available to deserving claimants in an intestacy as is given to claimants under a will.

Accordingly, the legislation in each jurisdiction extends the court’s jurisdiction to order provision to where the will and/or the operation of the law of intestacy dictate that the applicant has been left without adequate provision.29

Nature of Family Provision Jurisdiction Object of the jurisdiction Directed to moral obligations 15.9 The various family provision statutes were remedial initiatives — initiated ‘as a matter of social policy’30 — aimed to remedy an injustice by way of curial intervention ‘where moral rights and obligations of support were disregarded’.31 In the words of a New Zealand judge, uttered shortly after the enactment of the seminal legislation, the legislature ‘intrusted to the court the duty of seeing that a testator does not sin in his grave’ by leaving unprovided for ‘those whom nature has made dependent upon him’.32 It was no surprise, then, that the legislation targeted those closest to the testator as potential recipients of provision, namely those within the testator’s family. The latter has been described as ‘the social and legal institution within which these … rights and obligations are worked out’.33 The family provision jurisdiction has value not just in enforcing moral obligations but practically to address out-of-date

wills and to eschew arguments over undue influence or capacity (which are often costly by reason of being evidence-intensive).34 Reference in the previous paragraph to ‘moral’ rights and obligations and to ‘sinning’ highlights the heavily value-laden exercise facing the courts under family provision legislation. In particular, the extent to which moral duties play a role in this context has generated debate, both judicially and academically.35 In any case, though, whether phrased in terms of morality or otherwise, the curial judgments inherent in family provision applications are, in view of the terminology in which the relevant inquiries are expressed and the underlying policy(ies) informing the jurisdiction, hardly amenable to precision, or even predictability. A Victorian judge has, to this end, conceded that ‘[e]ach case in this field must be judged on its own facts; and it is not within the province of a trial judge to do more than explain the reasoning behind his or her decision’.36 And a New South Wales judge, even more frankly, accepted that, although he did not regard the claim as borderline, he ‘readily acknowledge[d] that other minds may come to a different conclusion’ and that the applicant ‘may have succeeded … before another Judge’, as ‘[t]hat is the nature of this kind of litigation’.37 [page 528]

Grounded in judicial discretion balanced against freedom of testation 15.10 The foregoing does not mean that the discretion statutorily vested in the court knows no bounds. As with any curial discretion, even (and arguably especially) one conferred in apparently unconfined terms, it must be exercised ‘judicially’. In another context, it is said that the exercise of a discretion ‘judicially’ is inconsistent with its exercise arbitrarily or capriciously38 or by reference to presumption or assumption,39 but translates to a duty to exercise it ‘according to rules of reason and justice’ rather than ‘private opinion … benevolence … or sympathy’.40 In the family provision context, the widely framed discretion evinces a statutory intention that it be exercised in a principled way.41 The latter is informed by the relevant statutory criteria —

‘adequate’, ‘proper’, ‘maintenance’, ‘advancement’, ‘support’42 — coupled with the ‘moral obligation’ that, according to most judges, overlays the jurisdiction.43 15.11 The exercise of judicial discretion in this context is also necessarily informed by the fact that the jurisdiction conferred by family provision legislation represents a targeted interference with freedom of testation. Even the general law, antedating the legislation, acknowledged the moral responsibility that comes with freedom of testation, as appears from the following remarks of the Court of Queen’s Bench in Banks v Goodfellow:44 The law of every civilized people concedes to the owner of property the right of determining by his last will, either in whole or in part, to whom the effects which he leaves behind him shall pass. Yet it is clear that, though the law leaves to the owner of property absolute freedom in this ultimate disposal of that of which he is thus enabled to dispose, a moral responsibility of no ordinary importance attaches to the exercise of the right thus given. The instincts and affections of mankind, in the vast majority of instances, will lead men to make provision for those who are the nearest to them in kindred and who in life have been the objects of their affection. Independently of any law, a man on the point of leaving the world would naturally distribute among his children or nearest relatives the property which he possessed. The same motives will influence him in the exercise of the right of disposal when secured to him by law. Hence arises a reasonable and well warranted expectation on the part of a man’s kindred surviving him, that on his death his effects shall become theirs, instead of being given to strangers. To disappoint the expectation thus created and to disregard the claims of kindred to the inheritance is to shock the common sentiments of mankind, and to violate what all men concur in deeming an obligation of the moral law.

That the court’s subsequent disclaimer of a jurisdiction to interfere with the testator’s freedom — reasoning that, despite the scope for caprice, ‘the instincts, affections, and common sentiments of mankind may be safely trusted to secure … a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law’ — has since been superseded by statute is no justification for a modern court to overlook or neglect freedom of testation. Rather, as family provision legislation aims to give legal force to a formerly (only) moral responsibility, the court must find a balance between the notion of absolute testamentary freedom and that of moral responsibility of the testator.45 [page 529]

Impact of object on statutory construction 15.12 In that family provision legislation represents an incursion into a freedom judicially described as ‘one of the badges of a society that has graduated from primitive conditions and a notable human right’,46 its terms must be construed against this backdrop. Although remedial in character, and therefore not to be construed restrictively or its terms read otherwise than according to their ordinary natural meaning,47 the importance of freedom of testation dictates that the legislation confers no power to interfere with a testator’s dispositions unless he or she has abused that freedom. Expressed another way, intervention is to occur only ‘to the minimum extent necessary’ to ensure that adequate provision for the proper maintenance is made.48 This ‘minimalist approach’ also derives from a testator often being better placed than the court to make a just assessment of the claims upon his or her estate, thereby providing ‘a very sound reason’, it has been said, ‘for the court to be slow to depart from the testator’s testamentary wishes’.49

Parameters of the family provision jurisdiction 15.13 The nature of the family provision jurisdiction, beyond considering its general object, is capable of being understood by reference to what the jurisdiction is not designed to achieve. Below are catalogued the main misunderstandings that have been pressed before the courts, which reveal objects that are ostensibly foreign to the legislative aim(s).

Not designed to effect a ‘fair’ disposition of the estate 15.14 The authorities make explicit that the mere fact that family provision legislation was, and remains, directed at rectifying an injustice, and to this end vests in the court a broad discretion grounded in matters of moral duty, presents no invitation, and gives no licence, to the court to seek to achieve a ‘fair’ or ‘equitable’ disposition of the deceased’s estate.50 While ‘fairness’ in a general sense is hardly foreign to the exercise of curial discretions, the statutory language eschews that term, but instead adopts the terms ‘adequate’ and ‘proper’. It is these specific considerations — which have assumed a legal meaning51 — that inform the court’s discretion rather than the vaguer

considerations of fairness or equity. To the extent that the [page 530] latter override, moreover, testamentary freedom is illegitimately usurped. In this regard, Taylor J in Stott v Cook made the following observation:52 There is … no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics.

Another judge has remarked that to remodel a will because some additional provision would be fairer ‘would pay no more than lip service, or not even that, to respecting a capable testator’s judgment where it appears that a reasonable judgment has been made’.53 There is also a danger that an untrammelled discretion invites little more than ‘palm tree’ justice, all the more concerning in an area that judges concede is heavily value-laden and factspecific. Rather than rewrite the will in accordance with its own ideas of fairness or justice, the court must place itself in the position of the testator and consider what the testator ought to have done in the circumstances, treating the testator for that purpose as ‘wise and just’, rather than ‘fond and foolish’.54

Not designed to make equal provision for children (or other persons) 15.15 The statutory jurisdiction to make provision is not directed at securing equal treatment between respective claimants, or between the claimant(s) and the beneficiaries of the will (or intestacy).55 Consistent with the above, although a general sense of fairness may dictate that, say, siblings should receive an equal bounty from their parent(s), the family provision jurisdiction is not explicitly about equality. Indeed, aiming to seek equality, it has been said, ‘may well indicate that the discretion exercisable in this statutory jurisdiction has miscarried’.56 To oblige a testator to provide equally for each of his or her children via a

family provision order represents an illegitimate interference with freedom of testation. It explains why courts are not swayed by evidence of no more than dissatisfaction by one sibling that he or she has not been treated as favourably as another.57 The statutory focus on ‘adequate provision’ for the ‘proper maintenance’ clearly licences the court to uphold the testator’s differential treatment of his or her offspring (or indeed others having an apparent interest in the testator’s bounty),58 and contains no mandate to equalise provisions as between beneficiaries or claimants. A sense of grievance, even if understandable, in an applicant is no justification, by itself, to activate the power of the court to order provision in his or her favour. As explained by Palmer J in Carey v Robson:59 One can understand the sense of grievance which one child may have at being treated by a parent differently from another child. Some may be tempted to think that great disproportionality of testamentary treatment in itself indicates some essential error in the testamentary process which

[page 531] requires amelioration under the Family Provision Act so as to achieve approximate equality between a testator’s children. That is not, of course, a position from which one can begin in this, or in any other case under the family provision legislation. It is useful to remind oneself of the parable of the labourers in the vineyard. Those who worked the whole day complained, not because their agreed wage was inadequate, but because those who worked only part of the day received the same wage and were therefore treated more generously. The moral of the parable is: what is fair and adequate to start with does not become unfair and inadequate just because someone else has been treated differently.

So in Higgins v Higgins,60 for example, White J conceded that the applicant, one of the deceased’s two adult sons, ‘had and continues to have a sense of grievance that the testatrix did not provide for him in the same way as she provided for [his brother] in her will’, but remarked that ‘[t]hat is not the purpose of what is, after all, intrusive legislation into the freedom of a deceased person to dispose of his or her estate as he or she desires whether by will or by intestacy’. 15.16 Informed by the same considerations, the family provision legislation does not vest in the court a discretion, independent of an inquiry directed at the statutory ‘adequate’ and ‘proper’ criteria, to oust the testator’s equal treatment of his or her offspring simply because of their differential

contributions to his or her welfare. The point is illustrated by Niefhoff v Niehoff,61 where the testator made equal testamentary provision of his two adult sons, notwithstanding that one of them had cared for the testator during the last years of his life. Eames J, not wishing to underestimate or undervalue the applicant’s commitment in looking after his father, saw it as ‘quite understandable’ if he harboured resentment against his brother for failing to have offered assistance in that time, and could understand ‘the chagrin of the [applicant] when pondering the terms of the will and observing the apparent indication that his own role was no more appreciated than that of his brother’.62 Yet his Honour ruled that, just as there is no principle that a testator should treat his or her children equally:63 … nor … is there any principle that a father might not treat his sons equally where, whatever may be thought to be their respective degrees of love and respect towards him, the court is satisfied that the testator has otherwise ensured that both receive adequate provision for their maintenance and support.

The applicant’s case was motivated not by the inadequacy of provision for his maintenance and support, but no more than a sense of unfairness that the father could treat both brothers equally in his will. 15.17 The foregoing does not mean that equal provision can never be an outcome of a family provision order.64 Nor does it mean that an applicant’s contributions to the deceased’s welfare can never be relevant to a claim for provision.65 In each case, though, the result must be one consonant with the statutory framework, directed as it is to rectifying, where possible, inadequate provision for proper maintenance of an applicant.

Not as a reward for service per se 15.18 It is not the principal object of the family provision regime to reward an applicant for his or her assistance of, or loyalty to, the deceased. Eames J’s decision in Niefhoff v Niehoff,66 [page 532] mentioned above, highlights the point. Though accepting that ‘[i]t is tempting

to identify the loving consideration given by the [applicant] to the well-being of his father in his last years, as, of itself, justifying a “reward” from the will’,67 Eames J refused to yield to this temptation. This conclusion aligns with judicial statements of high authority that the family provision jurisdiction aims to ‘provide for deserving persons according to their requirements, not to reward past services’,68 that ‘good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the court’,69 and that ‘[i]t is not to be assumed that merely because a claimant … has been a dutiful child of the deceased, it will necessarily be appropriate to order some provision’.70 Expressed another way, ‘[n]either entitlement to an award, nor its quantum, accrues good deed by good deed’.71 15.19 Taken at face value, the above suggests that it is not the court’s role to recast the testator’s will, so as to reward an applicant’s meritorious conduct. But face value here can prove misleading. Although it is fruitless to search for authority explicitly aligning a court order for provision with a reward for services, to the extent that the aforesaid judicial remarks deny any probative value to an applicant’s behaviour vis-à-vis the testator, they require qualification. Bad conduct or character, or estrangement, may disentitle or reduce an applicant’s claim to needed assistance, something countenanced explicitly by the family provision legislation.72 And in Victoria the legislation identifies, as a matter to be taken into account in making the order, any contribution not for adequate consideration of the applicant to the building up of the estate, or to the welfare of the testator or his or her family.73 Whether pursuant to this statutory mandate or independent of it, courts have measured the nature and extent of a testator’s moral obligation by reference, inter alia, to the deserts of the claimant, which may derive from contributions made by the claimant to the deceased (or the estate), or support and care given by the claimant to the deceased during his or her lifetime.74 This in turn raises the challenge of reconciling the curial eschewing of a ‘reward focus’ with a correlative willingness to nonetheless take into account the ‘good’ behaviour of the applicant to the testator. One way of reconciling these views is to conclude that, while a pure reward focus will not, by itself, justify an order for (greater) provision, the moral duty cast upon a testator, to which the legislation aims to give effect, is capable of being influenced by, inter alia, what the applicant has done for the testator. While perhaps most evident

where the applicant has contributed to building up the testator’s estate in financial terms, the contributions in question are, for this purpose, not so circumscribed. As explained by Gibbs J in Goodman v Windeyer:75 One of the circumstances that must be considered in deciding upon the deserts of a claimant to a testator’s estate, and in determining whether proper maintenance has been provided, is the manner in which that claimant has conducted himself or herself in relation to the testator. If the claimant has contributed to building up the testator’s estate, or has helped him in other ways, that gives the claimant a special claim on the testator’s bounty … The claimant’s conduct does not cease to be relevant if it has not been a financial benefit to the testator — if, for example, the labour has been in vain. If the claimant has made sacrifices on the testator’s behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. Indeed, the very fact

[page 533] that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered together with all the other circumstances in deciding whether proper maintenance has been provided … It is of course perfectly true to say that the power of the court under this legislation is to order that proper provision be made for the maintenance of the claimant, and not simply to reward the claimant for past services, but those dicta cannot mean that, in determining what is proper provision in all the circumstances of a particular case, the fact that a claimant has been a loving, helpful or dutiful spouse or child can or should be ignored.

But it may be that Goodman v Windeyer lies at one end of the spectrum. The applicant there was the widow of the testator, whom she had married later in life, 10 years before the testator’s death. Both had children by previous marriages, and the applicant had assets described by Gibbs J as ‘quite substantial’.76 Even so, the court held that the testator owed the applicant a duty to make provision for her proper maintenance and support, deriving principally from the sacrifices she had made, during the last 2 years of the testator’s life, in nursing and caring for him. While perhaps an illustration of the courts’ tenderness to widows’ claims,77 in Unger v Sanchez78 Kaye J opined that Goodman v Windeyer illustrates the curial approach where the claim ‘is substantially, if not primarily, based upon the deserts and conduct of the applicant towards the testator’. 15.20 It is difficult to see, though, even leaving aside the applicant’s lack of financial need, how the court’s ruling in Goodman avoids the pure ‘reward

focus’ that other judges have rejected. The niceties of the relevant law surface in the remarks of Kaye J in Unger, where the applicant’s ultimately successful claim was based on a quasi-familial relationship that developed out of her care for the elderly testator. His Honour disclaimed any role for the court to determine whether the testator was obliged to reward the applicant for her care and devotion to the testator (and her husband) in their latter years, but then added the following:79 Rather, the services given by the plaintiff to the testator, and to her husband, are relevant in determining the existence and the nature of any duty owed by the testator to the plaintiff to make adequate provision for her proper maintenance and support. A wise and just testator’s views, as to what constitutes adequate provision for a claimant’s proper maintenance and support, would relevantly be shaped, among other things, by the conduct of the claimant to the testator during his or her life time. On the one hand, what constitutes adequate provision for an indigent, but undeserving, offspring, may be dictated significantly, if not wholly, by the financial needs and circumstances of the claimant. On the other hand, what constitutes such provision for a loyal and devoted child, who is not in dire economic straits, would involve considerations which are not limited to economic need, but which would reflect what, in all the circumstances, would be a fair assessment of the claimant’s deserts.

15.21 How a testator’s obligation to reward arising out of care and support — which the family provision regime is ostensibly not designed to recognise — differs from the duty owed by a testator to make adequate provision stemming from that very same care and support arguably invites sophistry. And the clear admission that the threshold for ‘need’ for provision — and thus what is ‘adequate’ provision for ‘proper’ maintenance — may vary according to the applicant’s behaviour vis-à-vis the testator, though hardly unheralded in the case law,80 seems to convolute unrelated matters. It may be that Unger was also a special case; indeed Kaye J described its facts as ‘quite exceptional’, marked by the applicant’s ‘extraordinary degree of devotion and sacrifice’.81 Harper J had, years earlier in Schmidt v Watkins,82 provided an arguably more compelling analysis of the distinction between a duty to reward and a duty to provide. Though accepting [page 534] that care an applicant provided for a testator was not an irrelevant consideration in determining whether the court should make an order (the

Victorian legislation, after all, makes specific provision for this), his Honour distinguished this from a duty to ‘ensure the generosity is adequately rewarded or reciprocated’, remarking as follows:83 That, generally speaking at least, is a private matter. It is something for the individual conscience, not for the necessarily blunt instrument of the law. Rather, the object of the legislation is to ensure so far as the law can do it that those who have a duty not so much to reward but rather to provide maintenance and support do so by appropriate testamentary disposition. And the question: ‘Should I reward my benefactor?’ is very different from the question: ‘Do I have a duty to X to make provision for his or her proper maintenance and support?’ Different questions demand different approaches as one seeks to formulate the correct (or, rather, a proper) answer.

A concern was that ‘assistance of an extraordinarily generous kind over an extraordinarily long period’ that is not infrequently given by friends, neighbours and even mere acquaintances could generate a duty to make provision.84 This would run counter to the purpose of the legislation, and unduly interfere with testamentary freedom. So, according to Harper J, although assistance of this kind was not irrelevant in this context, in the usual case it would not, by itself, give rise to a duty to make adequate provision.85 Goodman v Windeyer and Unger v Sanchez would hardly present as usual cases to this end.

Not to punish or redress poor previous (parental) behaviour or the righting of wrongs 15.22 On multiple occasions judges have remarked that it is not the purpose of the family provision regime to make up for, or redress, poor (usually) parental behaviour by means of a monetary order. It is no vehicle to secure compensation for an applicant, or otherwise to make amends, for the deceased’s legal or moral failure in a parental role.86 Nor are applications for family provision the right vehicle to redress ‘family grievances or disappointed expectations’87 or ‘a sense of grievance or hurt feelings or to promote family harmony’.88 This has escaped some applicants, as appears from the following observation of Kirby P:89 It is a constant source of surprise to me in this, as in other cases under the Act, that so much attention is spent upon personal recrimination and insufficient attention is paid to the proof of precise financial means of the parties and the precise needs of the claimant. The Act is not about the righting of moral wrongs, as such, but about the making of adequate provision. In short, the focus of the Act is upon property — dollars and cents; not emotion and ethical desserts.

There is, accordingly, a distinction between the ‘righting of moral wrongs’ and the fulfilment of the moral duty to provide that lies at the core of the legislation. Even evidence of parental abuse does not abrogate this distinction;90 other laws may provide an avenue for relief in this [page 535] event. Courts are wary, in any case, to use family provision litigation as a vehicle to test and determine allegations of abuse, in part because they serve a different object and otherwise because the alleged perpetrator is unable to offer evidence in defence.91 So even though the family provision jurisdiction is grounded in the testator’s moral duty,92 not every moral obligation is rectifiable by the legislation. For instance, in Bentley v Brennan93 the homosexual relationship between the applicant and the deceased, the evidence indicated, commenced when the applicant was a child. Its abusive origin was not, in the view of Byrne J, a factor to be taken into account in granting of provision. In so ruling, his Honour countenanced a testator’s moral obligation falling outside the purview of the family provision regime:94 Doubtless on his deathbed the wise and just testator might be encouraged to see as his moral obligation to hold out a hand of friendship to those whom he had wrongfully rejected; a hand of forgiveness to those who had wronged him; and to make good, if this be possible, any damage which he has caused to another in his lifetime. It may be that the general community would applaud his decision to make provision in his will for such a person by way of atonement. But this is not the role of [the family provision statutory regime].

15.23 Commission of moral wrongs, or (sometimes with the benefit of hindsight) otherwise poor parenting, may nonetheless intersect with the moral duty underscoring a family provision order. Where the wrong(s) or poor behaviour of the testator contributed to the applicant’s need for provision, it is relevant to such an order. This is not because of the (mis)conduct as such, but its effect on the applicant in a way that translates to the object of an order for provision. So in Litchfield v Smith Hargrave J said:95 I accept the general submission that this aspect of the deceased’s conduct is not irrelevant to the deceased’s moral duty. Where the conduct of the deceased has the effect of depriving an applicant for provision of opportunities in life, and there is some causal connection between the conduct

and the applicant’s need for further provision, the court may take that into account in determining whether adequate provision has been made. Further … such conduct may also be taken into account in determining whether the deceased had a moral responsibility to make adequate provision for the applicant.

On the facts, his Honour’s order of provision in favour of the applicant, who was the testator’s daughter, was influenced by, inter alia, the fact that her parents’ conduct deprived her of opportunities at critical periods of her life, thereby contributing to her current poor financial position. In particular, the combined effect of the parents’ decision to force the applicant to leave school at an early age so that they could travel overseas for 2 years deprived her of the ability to continue her education. Had the applicant continued her education, her life would, Hargrave J surmised, probably have taken a different course.96 Similarly, the applicant’s decision to discontinue formal education, encouraged by his grandmother, to work on the grandmother’s farm, was found in Collicoat v McMillan97 to give rise to a moral obligation in the grandmother, who stood in a parental role vis-à-vis the applicant, to make provision for him. More difficult to rationalise in this manner is the recent decision of the Victorian Court of Appeal in Jones (a pseudonym) v Smith (a pseudonym),98 being a claim for provision by a daughter against her parents’ estate in large part driven by proven allegations of sexual abuse against her father. According to Ferguson JA, with whom Whelan and Kaye JJA concurred, that the daughter (and it proved also her son) had been abused led to the daughter ‘having a [page 536] significantly greater financial need than may otherwise have been the case’,99 which in turn justified provision (about one-third of a $6m estate) exceeding that to which the daughter was entitled under the will (about one-quarter of the estate). This decision, when coupled with evidence that the daughter already could access assets exceeding $4m independent of the will, appears to brand the order for provision as, in effect, some sort of compensation for the abuse. 15.24 Yet even though judges regularly emphasise that family provision orders are not directed to making amends for poor parenting, the case law on

‘bare paternity’ seems to buck this trend. It suggests that the mere fact of ‘paternity’ (which for this purpose must include mother as well as father) may, where adequate provision for proper maintenance has not been made for a surviving child, justify an award of provision.100 It has been said, to this end, that ‘the bare fact of paternity’ is ‘of very great importance in morality’.101 Indeed, the lack of contact or support of the applicant during the deceased’s lifetime may, it seems, accentuate the moral duty of the deceased to make provision, the more so if the deceased abnegated a known parental responsibility. In Campbell v Chabert-McKay,102 for example, White J ordered provision exceeding $1m (out of a $4m estate) in favour of the deceased’s daughter even though she was hardly in a poor financial position. His Honour saw the deceased’s ‘abnegation of his parental responsibility’ as increasing rather than diminishing his moral obligation to make adequate provision for her in his will, noting that the applicant ‘had nothing to be grateful for’.103 She had been abandoned by her father at the age of 10 and, beyond paying her school fees and providing maintenance to her mother pursuant to family law orders, he had done nothing for the applicant.

1.

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

Fung v Ye [2007] NSWCA 115; BC200703562 at [25] per Young CJ in Eq, with whom Tobias JA and Bell J concurred. See also Grey v Harrison [1997] 2 VR 359 at 363, 366; BC9606012 per Callaway JA (referring to freedom of testation as a ‘notable human right’ and an ‘important human right’). See 7.13. See G E Dal Pont, Law of Charity, 2nd ed, LexisNexis Butterworths, Australia, 2017, Chs 15, 16. See 2.56–2.61. Harter v Harter (1873) LR 3 P & D 11; Osborne v Smith (1960) 105 CLR 153 at 163; BC6000780 per Windeyer J. As to rectification in equity, see Dal Pont, pp 1140–55; Meagher, Gummow and Lehane, Ch 27. As to undue influence in equity, see Dal Pont, Ch 7; Meagher, Gummow and Lehane, Ch 15. See 2.39–2.47. As to incapacity in will-making, see 2.2–2.20. See 21.6. See L Young, G Monahan, A Sifris and R Carroll, Family Law in Australia, 8th ed, LexisNexis Butterworths, Australia, 2013, pp 703–6. See 2.62–2.77. Williams v Aucutt [2000] 2 NZLR 479 at [33] per Richardson P. The historical background to the 1900 New Zealand enactment is catalogued in R Atherton, ‘New Zealand’s Testator’s Family Maintenance Act of 1900 — the Stouts, the Women’s Movement and Political Compromise’ (1990)

14. 15.

16. 17.

18.

19.

20. 21.

22.

23. 24. 25. 26. 27.

7 Otago L Rev 202. See more generally B Patterson, Law of Family Protection and Testamentary Promises, 4th ed, LexisNexis NZ, Wellington, 2013. Testator’s Family Maintenance Act 1906 (NZ). The current statute is the Family Protection Act 1955 (NZ). Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) (as to the historical backdrop to which see R F Atherton, ‘The Testator’s Family Maintenance and Guardianship of Infants Act 1916: Husband’s Power v Widow’s Right’ (1990) 6 AJLS 97); Testator’s Family Maintenance Act 1914 (Qld); Testator’s Family Maintenance Act 1918 (SA); Testator’s Family Maintenance Act 1912 (Tas); Widows and Young Children Maintenance Act 1906 (Vic); Guardianship of Infants Act 1920 (WA) s 11. Administration and Probate Ordinance 1929 (ACT) Pt VII; Testator’s Family Maintenance Ordinance 1929 (NT). Inheritance (Family Provision) Act 1938 (UK). The current English legislation is the Inheritance (Provision for Family and Dependants) Act 1975 (UK), as to which see generally Williams, Mortimer and Sunnucks, Chs 58–61; S Ross, Inheritance Act Claims, 3rd ed, Sweet & Maxwell, London, 2011. The current Canadian legislation is now found in the following: Wills and Succession Act 2010 (Alta) Pt 5 Div 2; Wills, Estates and Succession Act 2009 (BC) Pt 4 Div 6 (formerly Wills Variation Act 1996 (BC)); Provision for Dependants Act 2012 (NB) (formerly Provision for Dependants Act 1973 (NB)); Testators’ Family Maintenance Act 1989 (NS); Succession Law Reform Act 1990 (Ont) Pt V (ss 57–79); Dependants’ Relief Act 1996 (Sask). Now see Family Provision Act 1969 (ACT); Succession Act 2006 (NSW) Pt 3.2 (which applies in relation to the estate of a person who dies on or after 1 March 2009; before this date the relevant legislation was the Family Provision Act 1982 (NSW)); Family Provision Act 1970 (NT); Succession Act 1981 (Qld) Pt 4; Inheritance (Family Provision) Act 1972 (SA); Administration and Probate Act 1958 (Vic) Pt IV; Family Provision Act 1972 (WA) (before 16 January 2013, titled the Inheritance (Family and Dependants Provision) Act 1972 (WA), and before this, the Testator’s Family Maintenance Act 1939 (WA)). Note that, although Tasmania has retained the original Act (Testator’s Family Maintenance Act 1912 (Tas)), it has undergone significant amendments from its original form. Or, in the case of deceased Maori, the (then) Native Land Court. Tataryn v Tataryn Estate [1994] 2 SCR 807 at 814 per McLachlin J, delivering the judgment of the court (‘Courts are not necessarily bound by the views and awards made in earlier times. The search is for contemporary justice’). Victoria, from 20 July 1998, moved from the traditional list of eligible persons to phrase eligibility in broader terms of ‘a person for whom the deceased had responsibility to make provision’: Vic s 91(1) (as it then read). By amendments effected by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic), as from 1 January 2015 it has reverted to a list of ‘eligible persons’: see 16.52). In the New Zealand context this expansion is neatly catalogued in the judgment of Keith J in Keelan v Peach [2003] 1 NZLR 589; [2002] NZCA 296 at [15]–[28]. See further 16.1, 16.2. Attorney-General, New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 3 August 1916, p 578. See 18.2–18.12 (wives), 18.22 (minor children). See Second Reading Speech, Testator’s Family Maintenance and Guardianship of Infants Bill 1916 (NSW), Hansard, 30 August 1916, pp 1239–40, 1248–9. See de Groot and Nickel, pp 79–80. As to the intestacy rules, see Chapter 9.

28. 29. 30. 31. 32.

33.

34. 35. 36. 37. 38. 39.

40. 41. 42. 43. 44. 45. 46. 47.

48.

49.

Western Australia, Legislative Assembly, Parliamentary Debates (Hansard), 23 March 1972, p 273. ACT s 8(2); NT s 8(1); NSW s 59(1)(c); Qld s 41(1); SA s 7(1); Tas s 3(1); Vic s 91(1), (2) (before 1 January 2015, Vic s 91(3)); WA s 6(1). White v Muldoon [2006] VSC 204; BC200604085 at [5] per Hollingworth J. Barns v Barns (2003) 214 CLR 169; [2003] HCA 9; BC200300694 at [2] per Gleeson CJ. Re Rush (1901) 20 NZLR 249 at 253 per Edwards J. See also Keelan v Peach [2003] 1 NZLR 589; [2002] NZCA 296 at [38] per Keith J (‘one of the factors that impelled the introduction of the 1900 Act was that while a husband could be compelled to maintain his wife and children while alive (under destitute persons legislation) it seemed odd that this maintenance was optional at death; the burden should not be thrown on the state’). Schaefer v Schuhmann [1972] AC 572 at 596 per Lord Simon. See also Easterbrook v Young (1977) 136 CLR 308 at 320; BC7700030 per Barwick CJ, Mason and Murphy JJ (‘It is because the will is operating unduly or unjustly in relation to the testator’s family that the court is empowered to order maintenance’). G Bowyer, ‘Succession Law Changes Too Harsh’ (October 2014) 88 LIJ 4. See 17.62–17.66. Schmidt v Watkins [2002] VSC 273; BC200204063 at [16] per Harper J. Carey v Robson (No 2) [2009] NSWSC 1199; BC200910083 at [11] per Palmer J. Oshlack v Richmond River Council (1998) 193 CLR 72 at 81; BC9800310 per Gaudron and Gummow JJ. Although surplusage, this may explain why the Western Australian legislation states that the court, in considering whether the disposition of the deceased’s estate effected by the law relating to intestacy, or by the combination of the deceased’s will and that law, makes adequate provision ‘shall not be bound to assume that the law relating to intestacy makes adequate provision in all cases’: WA s 6(2). Williams v Lewer [1974] 2 NSWLR 91 at 95 per Rath J. Grey v Harrison [1997] 2 VR 359 at 366; BC9606012 per Callaway JA; Savic v Kim [2010] NSWSC 1401; BC201009735 at [71] per Hallen AsJ. See 17.67–17.76. See 17.62–17.66. (1870) 5 LR QB 549 at 563 per Cockburn CJ, delivering the judgment of the court. Andre v Perpetual Trustees WA Ltd [2009] WASCA 14; BC200900074 at [44] per Steytler P, with whom Pullin and Buss JJA concurred. Grey v Harrison [1997] 2 VR 359 at 363; BC9606012 per Callaway JA. Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113 at 119; BC3200049 per Rich J, with whom Evatt and McTiernan JJ concurred; Worladge v Doddridge (1957) 97 CLR 1 at 9; BC5700260 per Williams and Fullagar JJ. Cropley v Cropley (2002) 11 BPR 20,171; [2002] NSWSC 349; BC200201920 at [53] per Barrett J. See also Stott v Cook (1960) 33 ALJR 447 at 453 per Taylor J; Alexander v Jansson [2010] NSWCA 176; BC201005167 at [20] per Brereton J, with whom Basten JA and Handley AJA agreed; Savic v Kim [2010] NSWSC 1401; BC201009735 at [71] per Hallen AsJ. Kay v Archbold [2008] NSWSC 254; BC200802045 at [124] per White J. See also Allardice v Allardice (1910) 29 NZLR 959 at 973 per Edwards J (‘the Court should never lose sight of the fact that at best it can but very imperfectly place itself in the position of the testator, or appreciate the motives which have swayed him in the disposition of his property, or the justification which he may really have for what appears to be an unjust will’); Sellers v Scrivenger [2010] VSC 320; BC201005217 at [76] per

50.

51. 52. 53. 54. 55. 56. 57.

58.

59. 60. 61. 62. 63. 64.

65. 66. 67. 68.

Daly AsJ; Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522; BC201302460 at [127] per White J; Revell v Revell [2016] NSWSC 947; BC201605533 at [8] per Pembroke J. Allardice v Allardice (1910) 29 NZLR 959 at 975 per Cooper J (‘we have no power to recast the testator’s will or to redress inequalities or fancied injustice’); Blore v Lang (1960) 104 CLR 124 at 135; BC6000550 per Menzies and Fullagar JJ; Cooper v Dungan (1975) 9 ALR 93 at 98–9; BC7600040 per Stephen J; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146; BC7900037 per Gibbs J; Re Leonard [1985] 2 NZLR 88 at 92 (CA) (‘Mere unfairness is not sufficient’); Gorton v Parks (1989) 17 NSWLR 1 at 6 per Bryson J; Shroder v Cozens (SC(Vic), Teague J, 23 February 1990, unreported) at 21 (‘The court does not have the power to substitute the opinion of the judge for that of the testator as to the best or fairest disposition of the property of the testator’); Niefhoff v Niehoff [1995] 2 VR 356 at 371; BC9503258 per Eames J; McKenzie v Topp [2004] VSC 90; BC200401441 at [63] per Nettle J; Unger v Sanchez [2009] VSC 541; BC200910756 at [65] per Kaye J; Savic v Kim [2010] NSWSC 1401; BC201009735 at [69] per Hallen AsJ. As to the meaning of ‘adequate’ and ‘proper’ in the family provision context, see 17.67–17.75. (1960) 33 ALJR 447 at 453 (although dissenting in his determination of the case). Friend v Brien [2014] NSWSC 613; BC201403741 at [62] per White J. Petrucci v Fields [2004] VSC 425; BC200407183 at [58] per Mandie J. See further 17.77, 17.78. Blore v Lang (1960) 104 CLR 124 at 135; BC6000550 per Menzies and Fullagar JJ; How v How [2015] TASSC 4; BC201500615 at [37] per Pearce J. Cooper v Dungan (1975) 9 ALR 93 at 99; BC7600040 per Stephen J. See, for example, Carey v Robson (No 2) [2009] NSWSC 1199; BC200910083 at [13] per Palmer J (who noted that the plaintiff’s argument came down to a submission that one child received much less from the testator than another, but added that ‘that circumstance, in itself and without more, does not justify or support a family provision claim’: at [24]). See, for example, Jackson v Newns [2011] VSC 32; BC201100505 at [58] per Mukhtar AsJ (who saw the case as a grievance that the two cousins were not treated equally, but added that ‘according to the legal principles that govern these applications, there is no justification for the court interfering with the freedom of testamentary disposition for itself saying that the two cousins should have been treated exactly the same’). (2009) 2 ASTLR 400; [2009] NSWSC 1142; BC200909715 at [57], [58] (paragraph break omitted) (aff’d Carey v Robson [2010] NSWCA 212; BC201006396). [2005] 2 Qd R 502; [2005] QSC 110; BC200503235 at [46]. [1995] 2 VR 356; BC9503258. Niefhoff v Niehoff [1995] 2 VR 356 at 369; BC9503258 (noting that the applicant’s efforts in that regard ‘merit high praise’, as ‘[h]is own lifestyle was undoubtedly adversely affected’). Niefhoff v Niehoff [1995] 2 VR 356 at 371; BC9503258. See also Bruce v Matthews [2011] VSC 185; BC201102785 at [42], [43] per Daly AsJ. Blore v Lang (1960) 104 CLR 124 at 135; BC6000550 per Menzies and Fullagar JJ (dissenting) (noting that ‘in some cases equality may set a limit to the order to be made — for instance where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same’). See 19.3–19.5 (included within statutory factors). [1995] 2 VR 356; BC9503258. Niefhoff v Niehoff [1995] 2 VR 356 at 369–70; BC9503258. Blore v Lang (1960) 104 CLR 124; BC6000550 at 137 per Windeyer J.

69. 70. 71. 72. 73. 74.

75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86.

87. 88. 89. 90.

91. 92. 93.

Blore v Lang (1960) 104 CLR 124; BC6000550 at 134 per Menzies and Fullagar JJ (dissenting). Williams v Aucutt [2000] 2 NZLR 479 at [69] per Blanchard J. Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359; BC201009847 at [80] per Campbell JA, with whom Giles JA and Handley AJA concurred. See 19.9–19.14. Vic s 91A(2)(g) (before 1 January 2015, Vic s 91(4)(k)). See, for example, Re Allen [1922] NZLR 218 at 220–1 per Salmond J; Coates v National Trustees, Executors and Agency Co Ltd (1956) 95 CLR 494 at 509; BC5600470 per Dixon CJ; Blore v Lang (1960) 104 CLR 124 at 129; BC6000550 per Dixon CJ; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 147; BC7900037 per Gibbs J; Collicoat v McMillan [1999] 3 VR 803 at 821; BC9502481 per Ormiston J. (1980) 144 CLR 490 at 497–8; BC8000095, with whom Mason and Stephen JJ agreed. Goodman v Windeyer (1980) 144 CLR 490 at 499; BC8000095. See 18.2–18.4. [2009] VSC 541; BC200910756 at [102]. Unger v Sanchez [2009] VSC 541; BC200910756 at [78]. See 17.72. Unger v Sanchez [2009] VSC 541; BC200910756 at [81], [82]. [2002] VSC 273; BC200204063. Schmidt v Watkins [2002] VSC 273; BC200204063 at [24]. Schmidt v Watkins [2002] VSC 273; BC200204063 at [23]. Schmidt v Watkins [2002] VSC 273; BC200204063 at [25]. Re Jennings (deceased) [1994] Ch 286 at 301 per Henry LJ; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223; BC200501471 at [43] per Palmer J (‘It is not the policy of the Act to console with legacies those who, while in no financial need, feel that the testator did not love them enough or feel that they should have a monetary solace for the loss of a loving relationship’); Savic v Kim [2010] NSWSC 1401; BC201009735 at [82] per Hallen AsJ; Litchfield v Smith [2010] VSC 466; BC201007667 at [55], [56] per Hargrave J. Sylvester v Sylvester [2010] QSC 331; BC201006579 at [57] per Mullins J. Daley v Barton (2008) 3 ASTLR 1; [2008] QSC 228; BC200811653 at [171] per Lyons J. Robinson v Tame (CA(NSW), 9 December 1994, unreported) BC9403378 at 13. See, for example, Williamson v Williamson [2011] NSWSC 228; BC201102159 (where although the applicant alleged that her father had subjected her to physical, sexual and verbal abuse from an early age, Hallen AsJ remarked that ‘it is not the function of the court to provide a legacy, by way of damages, for abuse’: at [125]). Cf Baird v National Mutual Trustees Ltd (SC(Vic), Harper J, 22 November 1995, unreported) BC9502528 (order for provision made where the evidence revealed that the deceased engaged in reprehensible conduct towards his wife and children, including significant assaults, making the children witness assaults upon the mother, forcing the children to live in unheated accommodation with broken windows, and other abuses; although much of the case focused on the abuse, that the competing claimants were charitable organisations coupled with the fact that none of the applicants, who were the testator’s children, were well-off financially, also influenced the order; in any event the scenario in question has been described as presenting ‘an extraordinary case’: Litchfield v Smith [2010] VSC 466; BC201007667 at [55] per Hargrave J). Page v Page [2016] NSWSC 1218; BC201662294 at [57], [58] per Hallen J. See 17.62–17.66. [2006] VSC 113; BC200602728.

94. 95. 96. 97. 98. 99. 100. 101.

Bentley v Brennan [2006] VSC 113; BC200602728 at [31]. [2010] VSC 466; BC201007667 at [57]. Litchfield v Smith [2010] VSC 466; BC201007667 at [70]. [1999] 3 VR 803 at 829; BC9502481 per Ormiston J. [2016] VSCA 178; BC201606264. Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178; BC201606264 at [67]. See 18.34, 18.35. Gorton v Parks (1989) 17 NSWLR 1 at 9–10 per Bryson J. See also Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522; BC201302460 at [128] per White J (‘A person who brings a child into the world, or who assumes the obligations of parenthood by adopting a child, assumes a moral obligation towards the child that persists beyond childhood and may well found a moral duty to make provision for the child after the parent’s death’). 102. [2010] NSWSC 859; BC201005447. 103. Campbell v Chabert-McKay [2010] NSWSC 859; BC201005447 at [119].

[page 537]

CHAPTER 16

Eligibility to Apply for Family Provision Introduction Expansion of eligibility Other introductory observations No residency or age/capacity requirement for eligibility Declaration of parentage Establishing the existence of a de facto (or equivalent) relationship Nature of applicant’s ‘interest’

16.1 16.1 16.3 16.4 16.5 16.6 16.7

Australian Capital Territory Eligible persons Meaning of ‘partner’ Meaning of ‘domestic relationship’ Restriction regarding stepchildren, grandchildren and parents of the deceased

16.8 16.8 16.9 16.11

Northern Territory

16.13

New South Wales Eligible persons Meaning of ‘de facto relationship’ Meaning of ‘child’ Meaning of ‘close personal relationship’ Meaning of ‘household’ Meaning of ‘dependence’ Focus on financial dependence? Mutual dependence Meaning of ‘partly’ dependent

16.14 16.14 16.15 16.19 16.20 16.21 16.22 16.23 16.27 16.29

16.12

Examples of ‘dependence’ Grandchild as ‘dependent’ Stepchild or stepgrandchild as ‘dependent’ Foster child as ‘dependent’ Other quasi-parental relationships as ‘dependence’ Queensland Eligible persons Meaning of ‘spouse’ Meaning of ‘child’ Meaning of ‘dependant’

16.30 16.31 16.34 16.35 16.36 16.37 16.37 16.38 16.39 16.40 [page 538]

South Australia Eligible persons Meaning of ‘domestic partner’ Meaning of ‘child’

16.41 16.41 16.42 16.43

Tasmania Eligible persons Meaning of ‘spouse’ Meaning of ‘child’

16.44 16.44 16.45 16.46

Victoria Position before 1 January 2015 Shift away from list of eligible applicants Remaining de facto need for family-like connection? Query breadth of the extension Position from 1 January 2015

16.47 16.47 16.47 16.49 16.51 16.52

Western Australia Eligible persons Meaning of ‘de facto partner’ Meaning of ‘child’

16.53 16.53 16.54 16.55

Introduction Expansion of eligibility 16.1 As the power to make an order for provision is sourced solely in statute, persons who have standing to apply for provision are determined upon the construction of the relevant legislation.1 The passage of time has seen the gradual broadening of persons eligible to apply for provision. While originally targeting no more than widows and minor children of the deceased, the modern statutory language is not so circumscribed. No sexism remains, and so it extends to both widows and widowers. And the need for a formal relationship of marriage has passed; de facto partners of the deceased, male or female, also have standing. The limitation to minor children of the deceased likewise passed into history, and now there is explicit scope for stepchildren to apply for provision.2 More recently again, in some jurisdictions relationships beyond family are recognised as conferring standing to apply for provision. As far back as 1972, the following had been observed:3 It is considered that society’s attitude to the right of a man, or of a woman, for that matter, to dispose of his or her property as he or she thinks fit … beyond doubt has changed. There is now a feeling that a deceased is under some moral obligation to make provision for the maintenance,

[page 539] education, and advancement in life of persons who in the normal course of human affairs had a close personal relationship with the deceased. Unless provision is made there should be means to satisfy the court that some provision should be made.

The phrase ‘family provision’ thus inaccurately reflects the scope of the legislation, unless an artificially broad conception of ‘family’ is adopted;4 certainly the notion of ‘immediate family’ no longer charts the parameters of the legislation. The widening of potential applicants for provision has meant, one judge has said, that ‘a testator not only has to think of his or her moral responsibility in the traditional sense, but also has to consider all the “hangers on” who might be thought by the community to deserve benefaction’.5 16.2

Although there is substantial commonality as to the classes of eligible

applicants between jurisdictions, there remain differences both at the margins and in the detail of definitions. Moreover, before 1 January 2015 the Victorian legislation went its own way as to standing, replacing the pre-20 July 1998 ‘list approach’ of eligible applicants with one grounded in the responsibility of the deceased to make provision.6 Victoria has since reverted to the ‘list approach’, albeit adopting a broader list then was previously the case.7 Standing entitlements, therefore, cannot be collapsed but must be addressed by jurisdiction. The National Committee for Uniform Succession Laws has, to this end, recommended a ‘hybrid’ approach, dividing eligible persons into two categories: those entitled to apply as of right — limited to those categories that are unlikely to be seriously disputed,8 namely spouses, de facto partners and non-adult children9 — and those who may apply only if the court determines that they are entitled to do so. The latter it phrased in terms of persons to whom the deceased ‘owed a responsibility to provide maintenance, education or advancement in life’, an approach in line with the now superseded eligibility criterion in Victoria. No jurisdiction has, to date, adopted this hybrid approach. At the outset, it should be noted that a person who is ineligible to make a family provision claim may still be able to establish another legal ground to upset testamentary dispositions, say, by way of estoppel10 or under an enforceable contract.11

Other introductory observations 16.3 Before considering the specific eligibility requirements prescribed by the family provision legislation in each jurisdiction, the following more general remarks should be made that underscore eligibility. [page 540]

No residency or age/capacity requirement for eligibility

16.4 As the legislation in no jurisdiction places a residency or domicile prerequisite for eligibility, the fact that an applicant is a non-resident, and has no intention of becoming part of the Australian community, is irrelevant to the question of standing.12 Nor is there any requirement that an applicant have reached the age of majority. Indeed, one of the chief pillars of the original family provision legislation was to ensure that minor children would receive, from their father’s estate, adequate provision for their proper maintenance. It follows that, in circumstances where the applicant is a minor, or is incapable for some other reason (most commonly, mental incapacity), another person must make the application on his or her behalf. Most jurisdictions countenance scope for a person to apply ‘on behalf of’ an eligible applicant, which covers this scenario.13 Queensland and Tasmania make more explicit provision for applications of this kind, or to seek the court’s directions as to whether an application ought to be made.14

Declaration of parentage 16.5 As a child of the deceased, whether or not legitimate, is eligible to apply for provision under statute in each jurisdiction, status of children legislation provides an avenue for the court to make a declaration of parentage.15 The family provision legislation in Queensland adds that a person who, if such a declaration of paternity were made upon his or her application, would be entitled to make an application for provision, the latter cannot proceed until he or she has obtained a declaration of paternity.16 Although Western Australia lacks dedicated status of children legislation, its family provision legislation states that the parent-child relationship, and any other relationship traced in any degree through that relationship, is recognised only if parentage is admitted by or established against the parent in the parent’s lifetime.17

Establishing the existence of a de facto (or equivalent) relationship 16.6 That the family provision legislation has extended eligibility beyond formal marriage relationships dictates a need to ascertain whether de facto or domestic relationships exist and remain on foot. As a legal union, the termination of which requires a legal order, the duration of a marriage, at least

as a matter of law, can easily be ascertained. The commencement and termination of a de facto relationship (or another non-marriage relationship with legal consequences) is not characterised by the same precision; it is ‘essentially impressionistic’18 and purely a matter of fact. De facto relationships are, it has been said, ‘by nature fragile’, in that whereas ‘[t]he robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement’, [page 541] ‘the persistence of those indicia are fundamental to the continuance of a de facto relationship’.19 The cases reveal, to this end, the need to be ‘practical’ in approaching the question of whether a relationship has started or ceased.20 This explains why the family provision legislation generally lists, or refers to a list of, factors that are relevant to, but not determinative of, the existence (and thus the expiry) of a de facto (or equivalent form of) relationship.

Nature of applicant’s ‘interest’ 16.7 Eligibility to apply for provision, except to the extent that the will or intestacy makes some existing provision in the applicant’s favour, vests in the applicant no interest, proprietary or otherwise, in the estate of the deceased. He or she has standing to apply, but no more. This explains case authority, for instance, that an existing or potential claim under the relevant legislation does not create a caveatable interest in the property of the estate (although this cannot be stated categorically).21 The position of an applicant for provision in this regard is arguably weaker than that of a residuary beneficiary of a deceased estate, who lacks a caveatable interest in land owned by the estate prior to the administration of an estate.22

Australian Capital Territory

Eligible persons 16.8 Each of the following persons is entitled to make application to the court for provision out of the estate of a deceased person:23 • a ‘partner’24 of the deceased person; • a person (other than a partner of the deceased person) who was in a ‘domestic relationship’25 with the deceased person for 2 or more years continuously at any time;26 • a child (which includes an adopted child)27 of the deceased person.28 There is also scope for a stepchild, grandchild or parent of the deceased person to apply for provision,29 but it is subject to limitations noted below. [page 542]

Meaning of ‘partner’ 16.9 ‘Partner’, of a deceased person, means someone who was the domestic partner of the person at any time, and either:30 • was the person’s spouse or civil partner at any time; • was the person’s domestic partner continuously for 2 or more years at any time; or • is the parent of a child of the person. A ‘civil partnership’ is a legally recognised relationship that may be entered into by any two adults who live in the Australian Capital Territory — other than persons who are married or in an existing civil partnership, or where the relationship between them is a ‘prohibited relationship’31 — regardless of their sex.32 A person’s ‘domestic partner’ is someone who lives with the person in a domestic partnership, and includes a reference to a spouse33 or civil partner of the person.34 A ‘domestic partnership’ is the relationship between two people, including of the same sex, living together as a couple on a genuine domestic basis.35 The term ‘genuine’ in this context is ostensibly synonymous with bona fide;36 it excludes sham relationships — that are structured knowingly to

present an outward appearance inconsistent with their substance — but is not necessarily inconsistent with bouts of selfishness or even infidelity by one or each of the persons.37 16.10 Indicators to decide whether two people are in a domestic partnership include: the length of their relationship; whether they are living together (and if so, how long and under what circumstances they have done so); whether there is a sexual relationship between them; their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them; the ownership, use and acquisition of their property, including any property that they own individually; their degree of mutual commitment to a shared life; whether they mutually care for and support children; the performance of household duties; and the reputation, and public aspects, of the relationship between them.38 The indicators are ‘to be weighed up and analysed together with other factors or circumstances the judge considers relevant’ and no one criterion is determinative or necessarily more significant than any other.39 This list of indicators has close parallels in other jurisdictions in dealing with equivalent concepts. What it does is recite, almost verbatim, judicial observations under the (then) De Facto Relationships Act 1984 (NSW)40 regarding the factors relevant to ascertaining whether or not two persons are in a de facto relationship.41 The latter had, preceding its [page 543] statutory translation into family provision legislation, been cited or applied for the purposes of eligibility under family provision legislation.42

Meaning of ‘domestic relationship’ 16.11 ‘Domestic relationship’ means a personal relationship between two adults in which ‘one provides personal or financial commitment and support of a domestic nature for the material benefit of the other’.43 It includes a domestic partnership, but not a legal marriage. For this purpose, a ‘personal

relationship’ may exist between people who are not members of the same household.44 However, no personal relationship is taken to exist between people only because one of them provides a service for the other for fee or reward, on behalf of another person (including a government or body corporate), or on behalf of an organisation the principal objects or purposes of which are charitable or benevolent.45

Restriction regarding stepchildren, grandchildren and parents of the deceased 16.12 In the Australian Capital Territory (and also the Northern Territory) a stepchild of a deceased person cannot apply for provision out of the latter’s estate unless the deceased maintained the stepchild immediately before the deceased’s death.46 Nor is a grandchild of a deceased person entitled to apply for provision, unless:47 • his or her parent (being a child of the deceased) predeceased the deceased; or • even though one or both of his or her parents was alive at the date of the deceased’s death, he or she was not maintained by that parent or by either of them immediately before the deceased’s death. A parent of a deceased person may apply for provision only if the deceased maintained either him or her immediately before the deceased’s death, or any partner or any of the children of the deceased person did not survive the deceased.48 For these purposes a person is treated as having been ‘maintained by the deceased person immediately before his or her death’ only if:49 • there was in force at that time a court order requiring the deceased to pay maintenance to or for the benefit of the other person; • the deceased was, at that time, whether or not under a written agreement, maintaining that other person, or making more than a nominal contribution to his or her maintenance; or • a court would, were the deceased still living, have power to order the deceased to pay maintenance to or for the benefit of the other person.

[page 544]

Northern Territory 16.13 In the Northern Territory each of the following persons is entitled to make application to court for provision out of the estate of a deceased person:50 • a spouse51 or de facto partner of the deceased; • a former spouse or de facto partner of the deceased (but only if the person was maintained by the deceased immediately before his or her death);52 • a child (which includes an adopted child)53 of the deceased;54 • a stepchild55 of the deceased; • a grandchild of the deceased; • a parent of the deceased. ‘De facto partner’, of a person, means someone who is in a de facto relationship with the person.56 Two persons are in a ‘de facto relationship’ if they are not married but have a marriage-like relationship.57 To determine whether two persons are in a de facto relationship, all the circumstances of their relationship must be taken into account, by reference to a list of matters to be taken into account as they are relevant in the circumstances of the particular case.58 For this purpose, it is irrelevant that the persons are of the same sex, either is married to another person, or either is in another de facto relationship.59 Like its Australian Capital Territory counterpart, however, the scope for a stepchild, grandchild or parent of the deceased person to apply for provision is subject to limitations.60

New South Wales Eligible persons 16.14

In New South Wales the following are ‘eligible persons’ who may

apply to the court for a family provision order in respect of the estate of a deceased person:61 • a person who was the wife or husband of the deceased at the time of the deceased’s death; • a person with whom the deceased was living in a de facto relationship62 at the time of the deceased’s death; [page 545] • a child63 of the deceased; • a former wife or husband of the deceased; • a person who: – was, at any particular time, wholly or partly dependent64 on the deceased, and – is a grandchild of the deceased or was, at that particular time or at any other time, a member of the household65 of which the deceased was a member; • a person with whom the deceased was living in a close personal relationship66 at the time of the deceased’s death.67 As to the fifth dot point above, it is not necessary that a grandchild of the deceased establish that she or he is also a member of the household of which the deceased was a member. The ‘or’ here is intended to express an alternative. But it remains necessary for the grandchild, or the member of the household, to establish the requisite dependence on the deceased; in this respect the requirements are cumulative. The statutory language makes clear, though, that the dependence need not subsist at the date of the deceased’s death.68 In the case of a person who is an ‘eligible person’ by reason only of falling within one of the last three dot points above, the legislation adds that a court may only order provision if, assuming the other elements are satisfied, ‘having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application’.69 As this matter does not qualify the court’s jurisdiction as regards other eligible persons, the legislative intention is ostensibly to throw upon applicants of this class a weightier onus.

Yet as the onus generally lies on an applicant to satisfy the court of his or her claim for provision, what this necessarily adds remains unclear.

Meaning of ‘de facto relationship’ 16.15 A person is in a ‘de facto relationship’ with another person if they have a relationship as a couple living together but are not married to one another or related by family.70 A de facto relationship can exist even if one of the persons is legally married to, or in a registered (interstate) relationship71 with, someone else.72 In determining whether two persons have a relationship ‘as a couple’ for this purpose, all the circumstances of the relationship are to be taken into account, [page 546] including a list of matters, to the extent they are relevant in each case.73 No particular finding relating to any one such matter is necessary or decisive in this regard.74 The legislation does not, in this sense, provide a precise test for the existence of the de facto relationship, but collectively the listed matters, it has been said, ‘all suggest a continuing course of conduct and behaviour, not an event at a fixed point of time’.75 The need for the persons to be living together ‘as a couple’, moreover, ‘connotes two adult unmarried persons living together, united by love, or living together in a romantic relationship’.76 16.16 De facto relationships therefore differ from mere friendship or companionship77 and, due to the phrase ‘live together’, from sexual relationships between persons who live apart.78 Hallen AsJ stated the point as follows in Thompson v Public Trustee of New South Wales:79 [A] de facto relationship … can, and should, be distinguished from the relationship of two people, who live apart, but who have a sexual relationship, and who sleep over at one another’s house; and also from the relationship of two people, who share a house, but who do not have a romantic commitment to each other and who have other sexual partners. The fact that one provides the other, on occasions, with financial, or other, assistance, such as accommodation, to alleviate hardship does not mean that they are in a de facto relationship. In this way, a de facto relationship is different from friendship, or courtship, which has not matured into the commitment where there is a merging of lives so that there is a mutual commitment to a shared

life. It is also different from simple companionship.

His Honour saw nothing in the statutory formulation requiring the parties to be in an exclusive relationship — a de facto relationship could therefore be established even where one or each party is married to, or is in a de facto relationship with, another person, at the same time80 — but conceded that a de facto relationship may be more difficult to establish in such circumstances.81 This is presumably because of the lack of mutual commitment, which while not required to be indefinite, should target the foreseeable future.82 His Honour elaborated the role of commitment within a de facto relationship in another case, remarking as follows:83 [I]n assessing the degree of mutual commitment to a shared life, it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship, or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints, and grievances, and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with a relationship of two parties having a relationship as a couple living together, but not married to one another.

[page 547] 16.17 Courts are, to this end, reticent to place too many strictures on a party’s relationship for this purpose. As de facto relationships are diverse, no assumption can be made of a standard-type relationship; just as marriage relationships vary in nature and incidents, so do non-marriage relationships. Albeit uttered in the context of the former Victorian provisions, the following remarks are instructive:84 In the case of Dow v Hoskins ([2003] VSC 206) Cummins J said that the determination of whether a person was living with the deceased should not be construed on narrow, formal, pedantic or merely geographical criteria, but should be considered taking into account the human reality of the personal, emotional and cultural complex. In that case his Honour took the view that he should approach the matter in that broader context. I agree with those observations and would add that it would be wrong to assume that the test of whether people are living in a genuine domestic relationship is to be judged against a model of a couple living together full-time, sharing fully domestic, financial and other responsibilities. That would place people claiming under these provisions at the very disadvantage which the provision is designed to remove. That would be so because people who are legally married live in married relationships in circumstances which vary dramatically from one couple to another, and it would be quite wrong to require that a couple seeking to invoke the [relevant statute] should be judged by reference to a static model which may not bear a sufficient relationship to the reality of life and the diversity of arrangements existing

between legally married couples.

16.18 The statutory reference to ‘a relationship as a couple living together’ in this context is not necessarily premised on an ongoing physical cohabitation. The legislation, after all, cites ‘the nature and extent of their common residence’ as a matter relevant to determining whether two persons have a relationship as a couple85 but does not make it an essential element. It acknowledges, therefore, that some couples choose to conduct a shared life without cohabiting, or cohabiting for only part of the time.86 ‘What is important’, it is said, ‘is the nature of the union (as a couple) rather than how it manifests itself in quantities of joint time’.87 For example, in Ward v Anderson88 the applicant stayed at the deceased’s home about 3 to 4 nights a week but maintained her own residence, 35 minutes’ drive away, chiefly because it was close to the hospital at which she was employed. The couple kept their financial affairs separate and on occasions the claimant lent the deceased money. They were known by others to be partners and the deceased had given the applicant an engagement ring and told others that they intended to marry in future. Despite the fact that the couple did not cohabit in the true sense, Waddell CJ in Eq found that the applicant had standing to seek provision, as she was, in the statutory language of the time, living with the deceased as his wife on a bona fide domestic basis. More recently, Neave JA remarked that ‘a de facto relationship may exist when the couple have separate residences and are not financially dependent on each other’.89 The evidence before her Honour revealed an applicant in an exclusive sexual relationship with the deceased, of some 12 years’ duration, who was recognised as his partner by their joint friends and her family. That the parties retained separate residences did not preclude the conclusion, in which Redlich JA and Habersberger AJA joined,90 that they were de facto partners for the purposes of family provision. [page 548]

Meaning of ‘child’ 16.19

In this context, a reference to a ‘child’ of a deceased person includes,

if the deceased was in a de facto relationship91 or a domestic relationship92 at the time of death, a reference to:93 • a child born as a result of sexual relations between the parties to the relationship; • a child adopted by both parties; • in the case of a de facto relationship between a man and a woman — a child of the woman of whom the man is the father or of whom the man is presumed, by virtue of the Status of Children Act 1996 (NSW),94 to be the father (except where the presumption is rebutted);95 • in the case of a de facto relationship between two women — a child of whom both of those women are presumed to be parents by virtue of the Status of Children Act 1996 (NSW); • a child for whose long-term welfare both parties have parental responsibility.96 There is no scope within the meaning of ‘child’ for standing to extend to a stepchild of the deceased. Case law in other jurisdictions makes clear that the term ‘child’ does not, by itself, include a stepchild.97 The eligibility of a stepchild to seek provision rests on coming within the statutory description of having been wholly or partly dependent98 on the deceased and a member of the household99 of which the deceased was a member.100 Adopted children, conversely, come within the eligibility criteria, as statute confers upon an adopted child ‘the same rights in relation to the adoptive parent, or adoptive parents, as a child born to the adoptive parent or adoptive parents’.101

Meaning of ‘close personal relationship’ 16.20 ‘Close personal relationship’ is defined as a close personal relationship (other than a marriage or a de facto relationship) between two adults, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.102 It describes, it is said, ‘a relationship that has an ongoing aspect of closeness or intimacy about it that is not necessarily physical or sexual’.103 But a relationship where a person provides the other domestic support and personal care for fee and reward, or on behalf of another person or an organisation

(including a government or government agency, a body corporate or a charitable or benevolent organisation) is not a close personal relationship.104 The reference to the persons ‘living together’ is no attempt to introduce into a ‘close personal relationship’ the concepts applicable to couples.105 Here there is no reference to the persons [page 549] living together ‘as a couple’. It has been judicially suggested that the notion of ‘living together’ presupposes:106 • cohabitation, though not necessarily full time107 provided that there is sufficient shared residence;108 • physical proximity in the same residence, in the sense of simultaneous physical presence; • some personal association with each other; • the sharing of facilities of day-to-day living on a regular and recurrent basis;109 • deciding household questions together and, whilst a social and economic partnership of the parties is not required, a sharing of the burden of maintaining a household;110 • regarding the place(s) in which they live as ‘their home’; • a continuity of association with the place, remaining for an undetermined period, not infrequently, but not necessarily combined with a design to stay permanently. As a relationship can alter over time — so that ‘its legal character at one point of time may not represent its character at another’111 — it is possible for a de facto (or marriage) relationship that has come to an end to translate into a close personal relationship.112 It is likewise possible that a relationship, which at the outset is no more than convenient and/or amicable, can in time develop into a close personal relationship.113 The phrase ‘domestic support and personal care’ is not one to be construed in the alternative, but as requiring both domestic support and personal care.114 The latter is not confined to matters relating to physicality; it can include

emotional care.115 The reference to the term ‘domestic’, though, in tandem with the phrase ‘living together’, carries connotations of ‘matters relating to a household’, so that the definition contemplates that ‘the facts permit of the conclusion that the two adults are living as a household’.116 Mere temporary absence by one of the parties does not, however, necessarily mean that the relationship has expired, if the indicia of a continuing relationship remain. If, say, while one party is in hospital the other party is attendant on [page 550] them and voluntarily does chores or takes commissions, it can be readily concluded that the relationship continues.117

Meaning of ‘household’ 16.21 The term ‘household’ takes its ordinary dictionary meaning, namely the ‘holding’ or maintaining of a house or family. Translated to the family provision environment, a person can be a member of a household if, first, there is in fact a household and, second, he or she has ‘some intimate connection with the householder or another member of the household’, even if not as a quasi-spouse or quasi-child.118 The reference to an ‘intimate connection’, rather than invoking some sexual relationship, targets a quasifamilial or friendship bond, distinct from, say, an employer-employee or landlord-boarder relationship,119 or presence that is no more than in a capacity as a visitor or guest.120 It follows that the question of whether a person is a member of a household (and indeed that of whether or not a household exists) can be one of degree, to be determined not merely at the moment at which the relationship commenced. It is possible for a person who enters a house as a servant or boarder to become, in the passage of time, a member of the household. For example, in Moloney v Goodwin121 Needham J found that a man who entered a woman’s house as a boarder, but who in time began looking after her as her health declined — as a family member would — became a member of her

household, even absent a sexual relationship. In each case, the concept of membership of a household connotes a degree of ‘continuity and permanency of mutual living arrangements’, albeit not compromised by an absence from the house for some temporary or special purpose.122 In Moloney the sharing of the house had lasted nearly 20 years, although the assistance had been supplied only during the last few years of the deceased’s life. In Blackley v Proctor,123 where the plaintiff resided in the deceased’s house for 6 years in a carer-friend capacity, Berecry AM found that he had become a member of the deceased’s household. In Munro v Lake,124 on the other hand, a stepdaughter who (with her mother) had stayed with [page 551] the deceased each weekend for several years prior to her mother’s marriage to the deceased was held not to be a member of the deceased’s household (and nor was her mother), as the evidence revealed that, during this period, not only had there been no stepchild-parent relationship, the plaintiff (and her mother) ordinarily resided with the plaintiff’s maternal grandfather.

Meaning of ‘dependence’ 16.22 In New South Wales a person is eligible to apply for provision if, being either a grandchild of the deceased or at some time a member of the household of which the deceased was a member, he or she was at any particular time ‘wholly or partly dependent’ on the deceased. The statutory language makes it clear that total dependence is not required, and that partial dependence suffices for the purposes of standing. The level of dependence may, however, impact upon whether the court will order provision and/or the quantum of any such order.

Focus on financial dependence? 16.23 Once meaning is given to the term ‘dependent’ in this context, the question of whether or not an applicant was dependent on the deceased, at the

time of deceased’s death or at a time prior to it, is one of fact,125 informed by, inter alia, ‘past events and future probabilities’.126 When speaking of ‘dependence’, a common form is financial dependence, which flows from the fact that housing, food, clothing and other necessities or amenities of life are supplied by the deceased. But this is not exhaustive of the concept of ‘dependence’ for family provision. A person can be dependent, in ordinary parlance, upon another even if the latter is not the source of the relevant money. An example is a young child, who is commonly dependent on his or her mother, whether or not the mother has independent means.127 To this end, there are judicial remarks to the effect that the term ‘dependent’, in the ordinary sense, means ‘the condition of depending on something or on someone for what is needed’,128 and covers ‘any person who would naturally rely on, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support’.129 It is therefore by no means limited to minors, although it is most likely to arise in this context; dependence may persist, or even arise, as between adults. 16.24 Notwithstanding curial indications that ‘dependence’ is not confined to ‘financial dependence’ — it can extend to ‘other material assistance … to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance’130 — care is needed in approaching claims based on mere emotional dependence. A person, including an adult, can develop an emotional attachment to another, so that the latter’s death is a blow to that person’s emotional wellbeing. But as the legislation aims to make provision out of the deceased’s estate solely for the financial needs of those with a claim on the estate, there are grounds to conclude that an emotional need does not, for this purpose and by itself, translate [page 552] to dependence.131 That financial dependence may often coexist with the giving of emotional support is by the way. As explained by Palmer J via an example:132 In very many cases where a grandchild is held to be dependent on a testator grandparent, the

giving of financial or other material assistance by the testator for the child’s maintenance and welfare is accompanied by the giving of natural love and affection, so that the child is dependent on the testator for both financial and emotional support. In some cases, the giving of financial support by the testator grandparent may be unaccompanied by love and affection but the child is still dependent upon the giving by the testator and is therefore an eligible person.

It follows that, despite the ostensible shift away from confining dependence to financial dependence, there is arguably little scope for a finding of actionable dependence completely independent of a financial focus. 16.25 The concept of ‘dependence’ dictates, moreover, that more is required that mere receipt of support. It bespeaks of reliance on that support for the applicant’s ordinary living,133 so that, should it be withdrawn, the applicant will face ‘difficulties in providing that support for himself or herself, either by reason of some physical, financial or emotional limitation or attribute’.134 There is no requirement here that the applicant rely entirely on that support; the statutory wording allows standing to a person who is ‘partly dependent’ on the deceased.135 At the same time, convenience does not itself amount to dependence, a point Brereton J in Spata v Tumino explained by way of example:136 [That] able-bodied adult children who are perfectly capable of washing their own clothes, preparing their own meals and shopping for their own supplies … may not do so, and that their parent or step-parent does so, is an arrangement of convenience, not of dependence. If the parent or step-parent did not provide those services, the able-bodied adult child could provide them himself or herself, or source them elsewhere. A convenient division of labour and responsibility between able-bodied adults does not create a case of dependence. It is not reliance on another for the satisfaction of a need.

Nor is expectation the same as dependence. So if an adult receives money on a regular basis from the deceased and chooses not to obtain money from another available source because of the expectation of regular payment from the deceased, it seems incongruous to conclude that he or she is dependent on the deceased within the meaning and policy of the family provision legislation. To this end, it has been observed that financial dependency in the case of a healthy adult who is able to work ‘means a necessity to rely on the deceased because there is no other source of finance available’.137 16.26 As whether or not a person is ‘dependent’ on another is a question of fact, a finding of dependence does not require evidence that the stronger party made an actual decision to

[page 553] provide financial support to the dependent party.138 Dependence may even exist as a matter of fact where the stronger party expresses an unwillingness to provide support. Otherwise a stronger party who, during his or her lifetime, shirked a moral (or even legal) responsibility to a person who was dependent on him or her at the time could thereby avoid a corresponding moral responsibility to make provision after death. This would in turn misalign with a core objective of the family provision regime.

Mutual dependence 16.27 Although often seen in terms of dependence moving the one way within a relationship — from the supplier of the support to the person dependent on it — that the dependence between the parties is mutual is no bar to standing to seek provision due to the survivor’s dependence on the deceased. For example, a live-in carer may have received rent-free accommodation and a wage from the deceased, making the carer dependent on the deceased. That the deceased also depended on the carer does not by itself necessarily change or reduce the nature of the carer’s dependence on the deceased.139 In this event, that a contract exists under which the services are supplied does not by itself deny dependence, though ordinarily the existence of a mere contract for services would not make the employee dependent upon the employer for this purpose.140 16.28 Nor does assumption of mutual obligations per se usually produce the requisite dependency. Co-ownership of property, for instance, does not normally create dependence as between the owners for accommodation; each co-owner has, after all, a right to occupy the property. But there may be occasions where co-ownership and dependence coexist, say, where two persons in a relationship purchased a house by pooling their incomes, which individually they could not have afforded to purchase.141 And in Alexander v Jansson142 the New South Wales Court of Appeal held that the applicant, an elderly woman, who owned a one-third interest in the home in which she had resided for 70 years, was dependent for accommodation on her son, who owned the remaining share. Aside from the familial dynamic, the length of

residence and the applicant’s advanced age at her son’s death, what influenced the court was that the son was the applicant’s nearest neighbour in a remote rural area.143 Brereton J, with whom Basten JA and Handley AJA concurred, remarked that ‘[t]he circumstance that a co-owner is entitled to reside in the property as a legal right is not inconsistent with, in particular circumstances, a co-owner in occupation being dependent on the other for accommodation’.144 [page 554]

Meaning of ‘partly’ dependent 16.29 The deliberate choice of the New South Wales legislature to afford standing to a person ‘partly’, as opposed to just ‘wholly’ or even ‘substantially’, dependent on the deceased indicates that the term ‘partly’ cannot be construed to mean ‘substantially’. Accepting that ‘partly’ is a word ‘of some elasticity’ in this context (and indeed in others), it has been suggested that it means ‘more than minimally’ or, perhaps, ‘significantly’.145 It is not difficult to accept the former construction — had the legislature wished that any dependence, even if minimal,146 confer standing, it could have used a phrase such as ‘in any way’ in place of ‘partly’ — but it is difficult to perceive how ‘significantly’ differs in reality from ‘substantially’, which the legislature chose not to adopt.147 As a matter of ordinary language, unless its context clearly dictates otherwise, ‘partly’ cannot be equated to ‘significantly’. In any event, it must be recalled that ‘partial’ dependence sets the hurdle for standing to apply for provision. The actual extent of dependence, once standing exists, will impact on whether an order for provision is made and, if so, its amount. There is, accordingly, no compelling reason to seek to bolster the term ‘partly’.

Examples of ‘dependence’ 16.30 Beyond a (once) romantic relationship or, more recently, a close personal relationship, between the applicant and the deceased, eligibility to apply for provision in New South Wales can only extend to a child other than

a natural child of the deceased if that person was at any particular time, wholly or partly dependent148 on the deceased and was either a grandchild of the deceased or was, at some time, a member of the household149 of which the deceased was a member.150 It follows that in New South Wales a grandchild has no standing to seek provision from a grandparent’s estate unless he or she meets the dependence criterion. Stepchildren and foster children must, for this purpose, in addition establish that they have been at some time members of the relevant household.

Grandchild as ‘dependent’ 16.31 That the family provision legislation does not confer upon a grandchild the same standing entitlement that it vests in the child of the deceased, but also requires proof of dependence, is a recognition that the relationship between grandparent and grandchild is, in the usual case, remote relative to that between parent and child. It also recognises that the moral claim of a child lies against his or her parents, more so than grandparents.151 The criterion of ‘dependence’ accordingly serves to bridge the parentgrandparent divide in this context. It acknowledges that in some circumstances the relationship between grandparent and grandchild is one akin to parent and child. This explains why courts, in cases involving grandchildren as applicants, view the concept of ‘dependence’ through the prism of parental moral responsibility. As explained by Palmer J in Simons v Permanent Trustee Co Ltd:152 The authorities make it clear that a grandchild is not normally regarded as a natural object of a testator’s testamentary recognition and that additional factors need to be shown to bring a

[page 555] grandchild into the category of persons for whom the testator ought to have made provision. These additional factors usually show that the testator had come to assume, for some significant time in the grandchild’s life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild’s support and welfare, or else that the testator has undertaken a continuing and substantial responsibility to support the plaintiff financially …

For example, in Tsivinsky v Tsivinsky153 the following findings led Kirby P to grant standing to the applicant to seek provision from her grandmother’s estate: the death of her mother at an early age; her residence in the

grandmother’s home before and after the mother’s death; the grandmother’s acceptance, particularly after her daughter’s death, of a position of surrogate mother to the applicant; and the continuance of that relationship until a stroke rendered the grandmother unable to continue in that role. These findings, taken together, meant that ‘[d]uring the most important formative years of her childhood’, the applicant was wholly dependent on her grandmother, who died when the applicant was still a minor (aged 15). In these circumstances, Kirby P saw the applicant as ‘no ordinary or typical grandchild’, involving a relationship ‘of substantial dependency in the past and foreseeable needs in the future’.154 Tsivinsky highlights that dependency as between grandchild and grandparent is more likely when the child’s parent is deceased or otherwise unable or unwilling to fulfil his or her parental obligation, usually from the time the child is relatively young, so that the grandparent ‘steps into’ the parental role. This also occurred in Fede v Dell’Arte,155 where the applicant grandchild lived in the home of her grandfather for 11 years preceding her adulthood, during which time she was unable to rely only on her mother and lacked a close relationship with her father. Hallen AsJ accepted that the deceased became, in effect, ‘a substitute father’ to the applicant and that, principally in that 11-year period, he had a relationship with her ‘that fell outside what one would call the normal relationship of grandparent and grandchild’.156 That the applicant’s mother also performed a (limited) parental function during that time did not deny a ‘dependence’ vis-à-vis her grandfather. 16.32 To overcome the statutory standing threshold, a grandchild’s dependence, whether whole or partial, on the grandparent must be direct and immediate. It is not sufficient that the grandchild’s dependence is the indirect result of the testator providing support and maintenance for the grandchild’s parent and thereby incidentally benefiting the testator’s grandchildren who are directly dependent on the parent.157 Nor is it sufficient that the relationship is ‘one with only short and interrupted periods of dependency’.158 For example, Palmer J in Re Sherborne Estate159 refused an applicant standing for provision out of her grandmother’s estate, in circumstances where the alleged dependence stemmed from a three-month period, years earlier, during which the applicant (with her mother and brother) went to live with her grandmother. Aside from the three-month period being only a ‘temporary

arrangement of convenience’, his Honour reasoned that, whatever assistance the grandmother gave by providing accommodation during this period, was given for the maintenance and support of her daughter, not as direct support and maintenance of the applicant.160 Palmer J in Sherborne was likewise dismissive of the argument that time spent by the applicant, four times in Christmas holidays, on her grandmother’s property gave rise to the requisite dependence. He branded it as a ‘curious application of the Act if the offer by a grandparent of [page 556] hospitality … during school holidays was sufficient to cast upon the grandparent an obligation to make testamentary provision for the maintenance and support of the grandchild for the rest of his or her life’.161 The same reasoning underscores why the fact that a grandparent makes gifts to, or for the benefit of, a grandchild does not by itself make the grandchild wholly or partially dependent on the grandparent. To qualify the grandchild as dependent, the gifts or benefits ‘must be of such regularity and significance that one can say that the [grandparent] had clearly assumed a continuing and substantial responsibility for the grandchild’s support and welfare’.162 It follows that a claim for provision that is grounded only in gift-making is likely to face considerable hurdles. 16.33 A person ordinarily has the strongest claim to provision from the estate of a grandparent in circumstances where the alleged dependency has occurred at a time, or at least has straddled a time, when he or she was an infant or young person. It is more challenging for dependence on a grandparent to be established at a time the applicant is an able-bodied adult. It has, to this end, been judicially said that ‘[t]he assessment of dependency in respect of a child will be different from the assessment of dependency in respect of an adult’.163 Where an adult is involved, it may prove necessary to distinguish alleged dependence from expectation; these cannot be equated, given that an able-bodied adult may ‘depend’ on the grandparent not because of any need for that dependence, as would an infant, but because he or she

expects benefits from the grandparent. The latter does not fit within the object and policy driving family provision orders. In Morrison v Carruthers164 Bergin CJ in Eq suggested that, in claims brought by healthy adult grandchildren who are able to work, dependence should be assessed by reference to matters including the following: (a) the applicant’s cost of living showing the break up of expenses on a weekly/monthly/or other (depending on the particular circumstances of the case) basis; (b) the income of the applicant (excluding the amount received from the deceased); (c) the amount received from the deceased on a weekly/monthly/or other basis; (d) whether the applicant was able to work and earn income to meet the reasonable costs of living that was otherwise provided by the deceased; (e) whether other sources of finance/income were available to the applicant to meet those living costs; (f) whether the applicant was able to work and chose not to do so; and (g) if the applicant chose not to work, whether that choice was necessary in all the circumstances, for instance, to care for the deceased; or infants; or elderly or infirmed members of the family.

Her Honour added that, for a claim of partial financial dependence by a healthy adult grandchild who is able to work, it is necessary to show that there are no sources of finance or income, other than from the deceased grandparent. The facts revealed that the applicant granddaughter — ‘an able bodied young woman with the capacity to work’ — chose not to work for more than 2 days per week. In the absence of evidence of an inability to obtain employment for more than 2 days per week, Bergin CJ was not satisfied that the applicant had established a relevant dependency.165

Stepchild or stepgrandchild as ‘dependent’ 16.34 A deceased’s stepchild, or stepgrandchild, only has standing to seek provision in New South Wales if he or she can establish not only the requisite dependence on the deceased, but also that he or she was at some time a member of the household of which the deceased was a member.166 Accordingly, applicants of this class face an additional hurdle in seeking provision, and mere status as a stepchild is no guarantee of standing, let alone of an order for provision. As in the case of grandchildren, though, the concept of ‘dependency’ in the case of a stepchild (or stepgrandchild) aligns closely to whether the relationship between the deceased and the [page 557]

child was quasi-parental, the age of the child at the time of the alleged dependency, and its duration. Proof of the requisite dependency will often carry with it, at least if the child remains a minor, a finding that the child was a member of the relevant household. An illustration is found in Thirkell v Cox,167 involving an application by a stepgrandchild of the deceased, who had, together with her father, lived in the deceased’s house for 2 years whilst a minor. Macready AsJ distinguished the instant facts from the scenario, as in Re Sherborne Estate,168 where a parent returns to the home of his or her mother or father with a grandchild who remains dependent upon the parent for daily needs and accommodation. Instead the facts involved a middle-aged man, recently separated and needing a home for his young teenage family, given the opportunity to build a bedroom on the back of the deceased’s house. The deceased cooked for the whole family and provided lunches for the applicant as well as her own children. His Honour’s finding that, for those 2 years, the deceased filled a ‘de facto mother role’ for the applicant carried a finding that the applicant was both dependent upon the deceased and a member of her household.169 However, the short period of dependency ultimately translated to a small order for provision.

Foster child as ‘dependent’ 16.35 Essentially the same principles apply as regards applications by foster children. Standing rests on proof of dependency and membership of the relevant household. As the relationship between foster child and foster parent invariably commences at a time when the foster child is a minor, and assuming that it is ongoing as opposed to fleeting often exhibits a familial flavour, proof of the criteria for standing to seek provision may not be difficult.170 That the foster parent has, during his or her lifetime, made provision for the foster child in a fashion akin to what may be expected of provision for a natural child supports the conclusion that the foster child was regarded as a member of the family. For example, in Falkingham v Falkingham171 Macready M, responding to the argument by the defendant (the deceased’s biological daughter) that the applicants were ‘only foster children’, said that ‘the extensive provision made by the deceased during her lifetime for the plaintiffs speaks more of a relationship closer to that of children of the deceased rather than foster children’.

Other quasi-parental relationships as ‘dependence’ 16.36 Even adult-child relationships that involve no lineal descendants, relations by marriage or a formalisation by way of a fostering arrangement can give rise to standing to seek provision, where they exhibit dependence and becoming a member of the relevant household. Again, the age of the child, coupled with the nature and duration of the relationship, influence the question of standing (as well as the question of whether provision should be granted and, if so, how much). In Khoury v Public Trustee,172 for instance, McLaughlin AsJ held that the fact [page 558] that for 10 years during his minority the applicant resided with the deceased, during which time he was provided with accommodation, sustenance and pocket money by the deceased, out of which ‘a close and affectionate relationship’ developed between them, made the applicant eligible to seek provision (as well as ultimately entitled to some provision). Similarly, in Lawrence v Public Trustee173 Macready M found that the applicant was dependent upon the deceased for his food and clothing, as ‘[f]or a child from the age 6 to 15, these are important matters, and certainly they are substantial’. As noted elsewhere,174 dependency is not limited to relationships where the alleged dependent party is under the age of majority. Dependency can arise in the case of adults, and can indeed increase with advanced age. But at the same time it is more challenging to establish dependency in the case of able-bodied adults who are otherwise able to provide for themselves. The case law reveals several instances of applications for provision by (former) daughters-in-law of the deceased who have received free accommodation from their in-laws. A relevant inquiry here appears to be whether the free accommodation — and with it, dependency and membership of the deceased’s household — flows because the applicant is (or was) married to the deceased’s son or because of her relationship with the deceased. If the former is the case, the courts have inclined towards denying the applicant standing.175 Certainly the mere fact that an applicant lives in her in-law’s home, including after the death of her

husband, is no ground by itself to substantiate dependency. More is required, both vis-à-vis the fact of dependency and the nature of the relationship in question, punctuated typically by need and/or contributions to the testator’s benefit or welfare.176

Queensland Eligible persons 16.37 Eligible to apply for provision in Queensland are the deceased person’s spouse, child177 or dependant,178 each of which need definition and elaboration.

Meaning of ‘spouse’ 16.38 A spouse is a person’s husband or wife, de facto partner or registered partner.179 A person is a ‘spouse’ of a deceased person only if, on the deceased’s death:180 • the person was the deceased’s husband or wife; or [page 559] • the person was the deceased’s de facto partner, and lived together with the deceased as a couple on a genuine domestic basis for a continuous period of at least 2 years ending on the deceased’s death; • the person was the deceased’s civil partner; or • the person was the deceased’s dependant former husband or wife or civil partner. ‘Dependant former husband or wife’, of a deceased person, means a person who was divorced by or from the deceased at any time, had not remarried before the deceased’s death, and was on the deceased’s death receiving, or entitled to receive, maintenance from the deceased.181 It also extends to a

person who was in a civil partnership182 with the deceased that was terminated under the Civil Partnerships Act 2011 (Qld),183 has not married or entered into another civil partnership before the deceased’s death and, on the deceased’s death, was receiving, or entitled to receive, maintenance from the deceased.184 ‘De facto partner’ refers to one of two persons, the gender of whom is irrelevant, who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.185 In deciding whether persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account.186 As in New South Wales,187 no particular finding in relation to any individual matter is necessary in deciding the point.188 But in stating that two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they share a common residence,189 the Queensland provision makes explicit what is only implicit in its New South Wales counterpart.190

Meaning of ‘child’ 16.39 ‘Child’ means, in relation to a deceased person, any child, stepchild or adopted child of that person.191 A person is a ‘stepchild’ of a deceased if he or she is the child of a spouse of the deceased and a relationship of stepchild and step-parent has not stopped as a result of the divorce of the deceased and the stepchild’s parent.192 If the deceased’s marriage to the parent subsisted when the parent died, the relationship of stepchild and step-parent does not stop merely because the stepchild’s parent died before the deceased or the deceased remarried after the death of the stepchild’s parent.193 [page 560] ‘Adopted child’ means a child adopted by a person, or by a person and another person jointly, in accordance with the law of the state or territory, or country, where the adoption takes place, as in force at the date of the adoption.194

Meaning of ‘dependant’ 16.40 A person is a ‘dependant’ of a deceased person if he or she was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by the deceased at the time of the latter’s death, being a parent of the deceased, the parent of a surviving child under the age of 18 years of the deceased or a person under the age of 18 years.195 The word ‘substantially’, in the phrase ‘wholly or substantially’, takes meaning from the context given by the word ‘wholly’. It therefore indicates something less than ‘wholly’, but also connotes something that is still ‘significant’ — paraphrased by the words ‘in the main’ or ‘as to the greater part’ — as opposed to ‘not merely nominal, ephemeral or minimal’.196 As the fact of dependence is informed by, inter alia, ‘future probabilities’,197 future arrangements planned between the parties and for which provision was made cannot be ignored. If, say, savings accumulated for the benefit of two parties stem from the income of one party, ‘there is support or maintenance being provided to the other if the moneys are to be used partly or wholly for the benefit of that other in the event that the relevant plans come to fruition’.198 For example, in Lohse v Lewis199 Mullins J found that, at the date of the deceased’s death, he was providing a home for the applicant — including furniture and furnishings, her means of transport and for her financial needs — and had, by way of support for the applicant’s future with him, made a considerable investment in purchasing a grazing property to which they would relocate for an ‘easier’ life. This led her Honour to conclude that the applicant had shown that at the date of the deceased’s death she was being substantially maintained or supported by him.

South Australia Eligible persons 16.41 In South Australia the following persons have standing to apply for provision from the estate of a deceased person:200 • the spouse201 of the deceased;

• • • •

a person who has been divorced from the deceased; the domestic partner202 of the deceased; a child203 of the deceased; a child of a spouse or domestic partner of the deceased being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased immediately before his or her death; • a child of the child of the deceased; [page 561] • a parent of the deceased who satisfies the court that he or she cared for, or contributed to the maintenance of, the deceased during his or her lifetime; • a brother or sister of the deceased who satisfies the court that he or she cared for, or contributed to the maintenance of, the deceased during his or her lifetime.

Meaning of ‘domestic partner’ 16.42 ‘Domestic partner’ of a deceased person means a person declared under the Family Relationships Act 1975 (SA) to have been the domestic partner of the deceased as at the date of his or her death, or at some earlier date.204 The 1975 Act states that a person is, on a certain date, the ‘domestic partner’ of another person if he or she is, on that date, living with that person in a close personal relationship and:205 • has so lived with that other person continuously for the period of 3 years immediately preceding that date; • has during the period of 4 years immediately preceding that date so lived with that other person for periods aggregating not less than 3 years; or • a child, of whom he or she and the other person are the parents, has been born (whether or not the child is still living at that date). In determining whether to make a declaration, the court must take into account all of the circumstances of the relationship between the relevant

persons, including any one or more of listed matters as may be relevant in a particular case.206 The court must declare persons to be domestic partners if satisfied that the persons were, on the date in question, ‘domestic partners’, or otherwise that they were on that date living together in a close personal relationship and the interests of justice require the declaration.207 The phrase ‘close personal relationship’ means the relationship between two adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis. It does not include the relationship between a legally married couple, nor does it encompass a relationship where one person provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind.208 A former or current sexual relationship is not germane to persons living together as a couple on a genuine domestic basis in this context.209

Meaning of ‘child’ 16.43 ‘Child’, in relation to a deceased person, includes a person who is recognised as a child of that person by virtue of the Family Relationships Act 1975 (SA).210 The latter supplies a means, pursuant to a court order, for parents under a recognised surrogacy agreement to assume the legal right to the child produced under that agreement.211 Although the Inheritance (Family Provision) Act 1972 (SA) makes no specific reference to an ‘adopted’ child as having standing to seek provision, that the relevant adoption legislation declares that, upon an adoption order, ‘the adopted child becomes in contemplation of law the child of the adoptive parents’,212 [page 562] coupled with the inclusive terms in which ‘child’ is defined in the 1972 Act, indicates that adopted children come within its purview. However, even the inclusive definition of ‘child’ seems insufficiently broad to encompass a ‘stepchild’,213 who is eligible to apply for provision only if he

or she ‘was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death’.214 It clearly does not include a person who, not being the natural or adopted child of the deceased, was nonetheless acknowledged and maintained by the deceased as his or her child.215

Tasmania Eligible persons 16.44 In Tasmania an application for provision out of the estate of a deceased person may be made by or on behalf of all or any of the following persons:216 • the spouse217 of the deceased; • the children218 of the deceased; • the parents of the deceased, if the latter dies without leaving a spouse or any children; • a person whose marriage to the deceased has been dissolved or annulled but who at the date of the deceased’s death was receiving or entitled to receive maintenance from the deceased whether pursuant to an order of a court, or to an agreement or otherwise; and • a person whose significant relationship with the deceased had ceased before the date of the latter’s death but who was receiving or entitled to receive maintenance from the deceased whether pursuant to an order of a court, or to an agreement or otherwise.

Meaning of ‘spouse’ 16.45 ‘Spouse’ includes the person with whom a person is, or was at the time of his or her death, in a significant relationship.219 A ‘significant relationship’ is a relationship between two adults who have a relationship as a couple, and who are not married to one another or related by family.220 If the relationship is registered,221 proof of registration is proof of the relationship.222 If it is not registered, in determining whether persons are in a

significant relationship, all the circumstances of the relationship are to be taken into account, including any one or more of listed matters as may be relevant in a particular case.223 No finding in respect of any one matter, or combination of them, is to be regarded as necessary for the existence of a significant relationship. Rather, the court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.224 [page 563]

Meaning of ‘child’ 16.46 ‘Child’ includes an adopted child and a stepchild.225 ‘Adopted child’ means a child adopted by a person, or by a person and his spouse jointly, in accordance with the law relating to the adoption of children, whether in Tasmania or applicable where the adoption took place.226 ‘Stepchild’ means, in relation to a person, ‘(a) a child of that person’s spouse; and (b) a child whose natural parent was the spouse of that person at the time of the natural parent’s death’.227 Before 13 October 2015 the term was defined to mean, in relation to a person, a child of that person’s spouse by a former marriage or significant relationship. That this definition had been interpreted to deny standing, by a stepchild against the deceased estate of his or her step-parent,228 in circumstances where the stepchild’s natural parent has died, is what prompted the change.

Victoria Position before 1 January 2015 Shift away from list of eligible applicants 16.47 Until 20 July 1998, eligibility requirements under the Victorian family provision legislation followed the model adopted in other jurisdictions, targeting the deceased’s surviving spouses and children. Ostensibly as a reaction to the Victorian Court of Appeal’s decision in Popple v Rowe229 —

which interpreted the former provisions to exclude stepchildren from applying for further provision from the estate of the step-parent) — as part of its Wills Act 1997 (Vic) reforms230 the Victorian Parliament replaced the ‘list of eligible applicants’ approach with what has been described as ‘a somewhat open-ended test’.231 As from 20 July 1998, this empowered the court to order that provision be made out of a deceased’s estate for the proper maintenance and support ‘of a person for whom the deceased had responsibility to make provision’,232 so that the pool of possible claimants ‘was considerably widened on what it had been before’.233 This broadening of standing entitlements, in place of the former ‘mechanical approach’,234 was no accident. On the contrary, it was a ‘considered’ decision,235 reflecting a deliberate shift in policy. In the relevant second reading speech, the Attorney-General branded the existing provisions as ‘quite restrictive, excluding the ability of other persons who may have a moral claim on the deceased’s estate from making a claim’, heralding the need for amendments ‘to [page 564] enable a wider category of persons to make testator’s family maintenance applications’.236 Not being circumscribed by statutorily prescribed relationships, most of which could be ascertained with a level of certainty, the amendments vested a discretion in the court, exercisable on a case-by-case basis, according to the statutory criterion. This was perceived as ‘a more equitable method of dealing with testator’s family maintenance applications’.237 To address a risk that broadened standing may generate a flood of unmeritorious claims, the legislation explicitly empowered the court to order costs against a person whose application was made frivolously, vexatiously or with no reasonable prospect of success.238 16.48 Attempts to argue that the amendments did not purport to oust the need for a blood or marriage relationship between an applicant and the deceased, on a reading of the ordinary meaning of the statutory wording and the evident parliamentary intention, proved unconvincing to the courts. In a

view later endorsed by the Victorian Court of Appeal,239 in 2002 Harper J opined that the amended legislation reflected the idea that the moral duty to make adequate provision was not, ‘[a]ccording to modern notions of what is right’,240 necessarily restricted to those with a tie of blood or marriage between them. That (the then) s 91(4)(e) directed the court, for the purposes of determining, inter alia, whether or not the deceased had a responsibility to make provision for a person, to have regard to ‘any family or other relationship between the deceased person and the applicant’241 was said to confirm this view.242

Remaining de facto need for family-like connection? 16.49 Although an applicant was not required to establish a blood or marriage relationship to the deceased to secure standing, it remained that the moral duty of a deceased to persons outside their family was perceived as ordinarily weaker than the moral duty owed to a child or spouse.243 This explained why, in cases where applicants outside a deceased’s family secured standing (and provision), their relationship with the deceased exhibited the incidents of a family relationship. Indeed, in Unger v Sanchez244 Kaye J opined that the words ‘or other’, in the phrase ‘family or other relationship’ in (the then) s 91(4)(e), gained colour by the specific reference to the family relationship as the paradigm relationship identified in that subparagraph. Coupled with the continued use of the concepts of adequate provision for proper maintenance and support, and the historical origins of the jurisdiction to order provision conferred by (the then) s 91, the inquiry focused, according to his Honour, on whether the deceased and the applicant ‘had a relationship which, at the least, had a material resemblance or equivalence to the type of family relationship from which notions of moral duty and obligation are commonly derived’.245 In Unger v Sanchez246 itself, involving a claim by a neighbour of the deceased, in ordering provision Kaye J noted that the relationship between the applicant and the deceased was ‘closely akin to that of a daughter to an elderly mother’. And the relationship of niece and aunt by marriage in Iwasivka v State Trustees Ltd247 proved no impediment to standing, as Hansen J saw

[page 565] the relationship as akin to that of daughter and mother. A year before, Mandie J in Petrucci v Fields248 granted standing (and provision) to the deceased’s widowed daughter-in-law, in view of the lengthy relationship between them pursuant to which she made ‘a significant contribution’ to the deceased’s welfare, as would have a daughter. Similarly, where the evidence revealed that the applicant was in a de facto relationship with the deceased — according to accepted notions of that which characterises a relationship of this kind249 — a ‘responsibility to make provision’ would likely ensue.250 But in the case of a business relationship between an applicant and the deceased, as in Schmidt v Watkins,251 there was no moral duty to provide. 16.50 Although standing for persons outside the deceased’s family did not, in the relevant provision, explicitly rely on the concept of ‘dependence’, as it does in New South Wales,252 concepts of ‘dependence’ were not irrelevant to the courts’ inquiry. Harper J made the point as follows in Schmidt v Watkins:253 … very often … the applicant will rely on the fact that he or she was always or has become dependent upon the deceased’s continuing provision of maintenance and support. Such dependency may well arise when a testator is in loco parentis to a child who is not a relative, or where a claimant — although unmarried — was in a domestic relationship in which there was a mutual commitment to an intimate personal relationship and a shared life as a couple. One may suppose that it is dependency of the former kind, or a dependency or inter-dependency of the latter, to which the amendments effected by the Wills Act 1997 were primarily directed.

That the factors to which the court was statutorily directed to have regard included ‘whether the applicant was being maintained by the deceased person before that person’s death either wholly or partly’ and ‘the liability of any other person to maintain the applicant’ also suggested some aspect of dependency.

Query breadth of the extension 16.51 It was legitimate, therefore, to query the extent to which the 1998 Victorian amendments, in practice, widened the class of persons for whom a deceased was morally duty-bound to provide. Harper J in Schmidt v Watkins254 viewed the changes ‘not as creating a new class of claimant but merely as expanding the boundaries of the old’, and ‘as part of a continuum rather than as a complete break from the past’. And he saw the statutory list of factors to

which the court must have regard,255 foreshadowed above, as ‘entirely consistent with those considerations which, in dealing with applications under the legislation before the 1998 amendments came into operation, the courts customarily took into account’.256 Not only did the notion of ‘moral duty’ remain at the core of the jurisdiction,257 the perspective of the ‘wise [page 566] and just testator’258 adjudged by reference to ‘contemporary accepted community standards’,259 which together displayed longstanding resonance in the case law, were not superseded by the 1998 amendments.260 And if the following remarks of Kaye J are accurate, the changes to standing effected by these amendments were minor at best:261 Ordinarily, a wise and just testator would readily recognise an obligation to make proper provision for the support and maintenance for his or her spouse and children. As I have stated, that obligation, of a parent or spouse, is well recognised according to contemporary accepted community standards. On the other hand, in my view, those standards would only support the existence of such a moral duty by a testator, to a person, who is not a member of his family, in quite rare and exceptional circumstances. Ordinarily, I would not expect that a wise and just testator, adhering to contemporary standards, would perceive it his or her moral duty to make provision for the maintenance and support of a close friend or neighbour, even where such a person had rendered invaluable and selfless service or aid to the testator. It might be commendable, or even desirable, for a fair-minded testator to include such a person in his or her bounty. However, in my view, it would only be a rare and quite exceptional case which would justify a conclusion that the testator had a moral duty to provide for his or her maintenance and support.

Position from 1 January 2015 16.52 Notwithstanding legitimate questions over whether the 2008 amendments did indeed unduly extend scope for standing to apply for family provision, the Victorian Law Reform Commission, in an August 2013 report, noted a belief that the law encouraged opportunistic or non-genuine claims, and fostered uncertainty as to the validity and strength of claims.262 This, inter alia, prompted the Commission to recommend that the ‘responsibility’ test be replaced with an eligibility test, based on the New South Wales test for eligibility, but extended to include stepchildren.263 In a substantial way, this

saw implementation via the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic), as from 1 January 2015, which introduced a list of ‘eligible persons’ comprising the following:264 • the spouse265 or domestic partner266 of the deceased at the time of the deceased’s death; [page 567] • a child (including an adopted child) of the deceased who, at the time of the deceased’s death, was under the age of 18 years, a full-time student aged between 18 years and 25 years, or suffered a disability;267 • a stepchild of the deceased who, at the time of the deceased’s death, was under the age of 18 years, a full-time student aged between 18 years and 25 years, or suffered a disability; • a person who: (a) for a substantial period during the life of the deceased, believed that the deceased was his or her parent and was treated that way by the deceased; and (b) at the time of the deceased’s death, was under the age of 18 years, a full-time student aged between 18 years and 25 years, or suffered a disability; • a former spouse or former domestic partner of the deceased if the person, at the time of the deceased’s death: (a) would have been able to take proceedings under the Family Law Act 1975 (Cth); and (b) has either not taken those proceedings or commenced but not finalised those proceedings; and (c) is now prevented from taking or finalising those proceedings because of the death of the deceased; • a child or stepchild of the deceased not referred to in the second or third dot points; • a person, not referred to in the fourth dot point above, who for a substantial period during the life of the deceased believed that the deceased was his or her parent and was treated that way by the deceased; • a registered caring partner268 of the deceased; • a grandchild of the deceased; • a spouse or domestic partner of a child of the deceased (including a stepchild or a person referred to in the fourth and seventh dot points) if

the child of the deceased dies within 1 year of the deceased’s death; • a person who, at the time of the deceased’s death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member. Importantly, eligibility within the last four dot points rests on the person in question having been ‘wholly or partly dependent on the deceased for the eligible person’s proper maintenance and support’.269 Also, while the sixth and seventh dot points appear to cover the same ground as the second, third and fourth dot points but without the limitations imposed by the latter, for persons within the sixth and seventh dot points the court must take into account, in determining the amount of provision to be made, the degree to which the person ‘is not capable, by reasonable means, of providing adequately for [his or her] proper maintenance and support’.270 The same does not apply vis-à-vis persons who fall within the second, third or fourth dot points. [page 568]

Western Australia Eligible persons 16.53 In Western Australia an application for provision out of the estate of any deceased person may be made by or on behalf of one or more of the following persons:271 • a person who was married to, or living as the de facto partner272 of, the deceased immediately before the deceased’s death; • a person who, at the date of the deceased’s death, was receiving or entitled to receive maintenance from the deceased as a former spouse or de facto partner of the deceased, whether pursuant to an order of any court, or to an agreement or otherwise; • a child273 of the deceased who was alive at, or born within 10 months274 of, the date of the deceased’s death; • a grandchild of the deceased who was being maintained wholly or partly by

the deceased immediately275 before the deceased’s death; • a grandchild of the deceased who was alive at, or born within 10 months of, the date of the deceased’s death,276 and one of whose parents was a child of the deceased who had predeceased the deceased; • a stepchild277 of the deceased who was being, or entitled to be, maintained wholly or partly by the deceased immediately before the deceased’s death;278 [page 569] • a stepchild of the deceased, if the deceased had received or was entitled to receive property with a value exceeding the prescribed amount279 from the estate of a parent of the stepchild otherwise than as a creditor of the deceased parent’s estate;280 • a parent of the deceased, whether the relationship is determined through a legal marriage or otherwise, where the relationship was admitted by the deceased being of full age or established in the lifetime of the deceased.

Meaning of ‘de facto partner’ 16.54 A ‘de facto partner’ is a person who lives, or has lived, in a de facto relationship.281 ‘De facto relationship’ refers to a relationship (other than a legal marriage) between two persons, including of the same sex, who live together in a marriage-like relationship.282 Statute lists factors that assist in determining whether or not a de facto relationship exists between two persons.283 That either of the persons is married to someone else, or in another de facto relationship, does not preclude a finding of a de facto relationship between them.284

Meaning of ‘child’ 16.55 The Western Australian legislation makes clear that ‘child’ or ‘grandchild’ includes an illegitimate child or grandchild.285 Although it does not specifically address the point, it also encompasses an adopted child, as an

adoption order means that ‘the relationship between the adoptee and the adoptive parent is to be treated as being that of child and parent’.286 But against the backdrop of case authority elsewhere,287 which has refused to interpret the term ‘child’ to encompass a stepchild, without a specific provision to this effect, before the legislation was amended with effect on 16 January 2013288 to explicitly encompass a stepchild,289 there was no standing in a stepchild of the deceased to claim provision. In including within eligible persons a child or grandchild of the deceased who was born within 10 months of the date of the deceased’s death, the Western Australian legislation goes further than its counterparts in other jurisdictions. The latter make no equivalent provision, and it is difficult to construe their language to extend to children born after the deceased’s death, even if they were at the time en ventre sa mere.290

1.

2. 3. 4.

5. 6. 7. 8. 9.

Keelan v Peach [2003] 1 NZLR 589; [2002] NZCA 296; BC200261782 at [27] per Keith J, delivering the reasons of the court (referring to ‘the particular control that Parliament has exercised throughout a century in adapting the list of those eligible to apply under the [Act] … [which] virtually compels the conclusion that there is no room for a Court to read new content into any of the items in the list [of eligible applicants]’). As to the backdrop to initiatives relating to stepchildren, see K Mackie, ‘Stepchildren and Succession’ (1997) 16 U Tas L Rev 22. Western Australia, Legislative Assembly, Parliamentary Debates (Hansard), 23 March 1972 at 273 (Attorney-General). In Churton v Christian (1988) 13 NSWLR 241 at 243 Mahoney JA could not see the rationale of the extension of eligible applicants (in the (then) Family Provision Act 1982 (NSW)) as lying in a new or extended concept of family, whereas Priestley JA in the same case opined (at 245) that experience with the preceding legislation (the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW)) ‘showed that the idea of family which it embodied was narrower than actual ideas of family in the community generally’. Fung v Yee [2007] NSWCA 115; BC200703562 at [24] per Young CJ in Eq, with whom Tobias JA and Bell J concurred. See 16.47, 16.48. Pursuant to the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic): see 16.52. The National Committee for Uniform Succession Laws described these categories as being among those who would ‘generally have the strongest claim for support from the deceased person’s estate’: QLRC, MP 28, p 8. The National Committee for Uniform Succession Laws adopted the limiting phrase ‘non-adult children’ as a move against the more recent curial trend to make provision for able-bodied adult

10. 11. 12. 13.

14.

15.

16. 17. 18. 19.

20. 21. 22. 23. 24. 25. 26.

27.

children of the deceased (see generally 18.23–18.28), concluding that non-adult children would ‘generally have a far greater moral claim to the deceased person’s estate than adult children’: QLRC, MP 28, p 13. See, for example, Sedgwick v Varzonek [2015] NSWSC 1275; BC201508936. See 1.29–1.39. Lo Surdo v Public Trustee [2003] NSWSC 837; BC200305439 at [18] per Gzell J. NT s 8(1); Qld s 41(1); SA s 7(1); Tas s 3(1); Vic s 90A(1) (before 1 January 2015, Vic s 91(2)); WA s 6(1). See further de Groot and Nickel, pp 362–8. Yet even in the Australian Capital Territory and New South Wales, the position is the same in circumstances of this kind, as next friends can always represent minors and incapable persons: see B C Cairns, Australian Civil Procedure, 11th ed, Lawbook Co, Australia, 2016, pp 383–5. Qld s 41(7) (vesting this power in the personal representative, the Public Trustee, the chief executive of the department in which the Child Protection Act 1999 (Qld) is administered, or any person acting as the litigation guardian of a person under a legal incapacity); Tas s 3(5) (vesting this power in the executor or administrator of a deceased estate vis-à-vis a person who is not of full age or mental capacity). Parentage Act 2004 (ACT) s 15; Status of Children Act 1996 (NSW) s 21; Status of Children Act 1978 (NT) s 11 (confined to paternity); Status of Children Act 1978 (Qld) s 10; Family Relationships Act 1975 (SA) s 9; Status of Children Act 1974 (Tas) s 10; Status of Children Act 1974 (Vic) s 10. See further de Groot and Nickel, pp 203–4. Qld s 41(9) (which adds that the court may give such directions and act as it thinks fit to facilitate the making and determination of all necessary applications on behalf of that person under the relevant Acts). WA s 4(4) (but excepting a relationship established by the Artificial Conception Act 1985 (WA): WA s 4(5)). Sadiq v NSW Trustee & Guardian [2015] NSWSC 716; BC201504868 at [207] per Hallen J (aff’d Sadiq v NSW Trustee & Guardian [2016] NSWCA 62; BC201602224). S v B (No 2) [2005] 1 Qd R 537; [2004] QCA 449; BC200407964 at [33] per Dutney J (adding that ‘[a] de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart’: at [48]). Fung v Ye [2007] NSWCA 115; BC200703562 at [30] per Young CJ in Eq, with whom Tobias JA and Bell J concurred. See 11.26. See 10.43. ACT s 7(1)(a)–(c). ‘Deceased person’ includes a person in respect of whose estate there has been made a grant of administration expressed to be made on presumption of the death of the person: ACT Dictionary. As to the meaning of ‘partner’, see 16.9, 16.10. As to the meaning of ‘domestic relationship’, see 16.11. Before 1 May 1996, a former wife or husband could not make application under the Act unless the person ‘was maintained by the deceased person immediately before his or her death’: ACT s 7(2) (in its pre-1 May 1996 form). That provision was amended by the Family Provision (Amendment) Act 1996 (ACT), which widened eligibility under the Act to include domestic partners but removed former wives or husbands from, and did not subject former domestic partners to, that limitation. There is now no such limitation on former spouses or domestic partners. An adopted child is included by virtue of legislation that treats adopted children as having the same status as natural children: Adoption Act 1993 (ACT) s 43.

28. 29. 30. 31. 32. 33.

34. 35. 36. 37.

38. 39. 40. 41. 42.

43. 44. 45. 46. 47. 48.

49. 50. 51.

A child of the deceased person born alive after the death of that person is regarded as having been born before the death of the deceased person: ACT s 7(8). ACT s 7(1)(d)–(f). ACT s 7(9). A ‘prohibited relationship’ refers to any one of the following relationships with a proposed civil partner: lineal ancestor; lineal descendent; sister; half-sister; brother; or half-brother: Civil Partnerships Act 2008 (ACT) s 6(2). Civil Partnerships Act 2008 (ACT) s 6. The note to the Legislation Act 2001 (ACT) s 169(1) refers to the definition of ‘spouse’ in the Macquarie Dictionary (1997) as ‘either member of a married pair in relation to the other; one’s husband or wife’. Legislation Act 2001 (ACT) s 169(1). Legislation Act 2001 (ACT) s 169(2). Indeed the former NSW 1982 s 6(1) adopted the phrase ‘bona fide domestic basis’. See, for example, Bar-Mordecai v Hillston [2004] NSWCA 65; BC200401047 at [125] per the court (in the context of the former NSW 1982 s 6(1), where their Honours ruled that although the relationship in question was unusual — there was a coexisting doctor—patient relationship and a considerable age disparity between the parties, as well as an occasion where the applicant moved out and lived for a month with another woman before returning to the deceased — this did not undermine its bona fides, adding that ‘[t]he relationship went on for too long and its mutually satisfying aspects were too significant to view it as a naked plan of exploitation’: at [122]). Legislation Act 2001 (ACT) s 169(2), example. Spencer v Burton [2016] 2 Qd R 215; [2015] QCA 104; BC201505157 at [123] per Ann Lyons J, with whom Holmes and Gotterson JJA concurred. Since renamed the Property (Relationships) Act 1984 (NSW). D v McA (1986) 11 Fam LR 214; BC8600888; Roy v Sturgeon (1986) 11 NSWLR 454 at 458–9 per Powell J. See, for example, Bar-Mordecai v Hillston [2004] NSWCA 65; BC200401047 at [86], [87] per the court; Lohse v Lewis [2004] 2 Qd R 648; [2004] QSC 36; BC200400757 at [40] per Mullins J; Re Estate of Williams (2004) 13 Tas R 309; [2004] TASSC 154; BC200408728 at [18] per Blow J. Domestic Relationships Act 1994 (ACT) s 3(1). Domestic Relationships Act 1994 (ACT) s 3(2)(a). Domestic Relationships Act 1994 (ACT) s 3(2)(b). ACT s 7(2); NT s 7(2)(b). ACT s 7(3); NT s 7(3). ACT s 7(4); NT s 7(4). Equivalent provision is made in the New Zealand legislation: Family Protection Act 1955 (NZ) s 3(1A). There are relatively few examples of parents of the deceased applying for provision, but the leading New Zealand case is Re Hilton [1997] 2 NZLR 734 (where the deceased’s elderly mother succeeded in securing additional provision, in view of the reasonably substantial estate and her modest financial circumstances, as compared to the principal beneficiary of the deceased’s will, who was a young woman with the security of a home and a professional qualification). ACT s 7(7); NT s 7(7). NT s 7(1). ‘Deceased person’ includes a person in respect of whose estate there has been made a grant of administration expressed to be made on presumption of the death of the person: NT s 4(1). ‘Spouse’, of a person, means: (a) a person to whom the person is validly married under the Marriage Act 1961 (Cth); or (b) if the person is an Aboriginal or Torres Strait Islander — an Aboriginal or

52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70.

71. 72. 73.

Torres Strait Islander to whom the person is married according to the customs and traditions of the particular community of Aboriginals or Torres Strait Islanders with which either person identifies: Interpretation Act 1978 (NT) s 19A(1). NT s 7(2)(a). As to the meaning of ‘maintained by the deceased person immediately before his or her death’, see NT s 7(7) (noted at 16.12). An adopted child is included by virtue of legislation that treats adopted children as having the same status as natural children: Adoption of Children Act 1994 (NT) s 45. A child of the deceased person born alive after the death of that person is regarded as having been born before the death of the deceased person: NT s 7(8). ‘Stepchild’, of a person, means a child who is: (a) if the person is married — a child of the person’s spouse but not a child of the person; or (b) if the person is in a de facto relationship — a child of the person’s de facto partner but not a child of the person: Interpretation Act 1978 (NT) s 19A(4). De Facto Relationships Act 1991 (NT) s 3(1). De Facto Relationships Act 1991 (NT) s 3A(1). De Facto Relationships Act 1991 (NT) s 3A(2) (that align with the indicators of a ‘domestic partnership’ in the Australian Capital Territory: see 16.9). De Facto Relationships Act 1991 (NT) s 3A(3). See 16.12. NSW s 57(1) (cf NSW 1982 s 6(1) (definition of ‘eligible person’)). ‘Deceased person’ includes any person in respect of whose estate administration has been granted: NSW s 3(1). As to the meaning of ‘de facto relationship’, see 16.15–16.18. A reference to a ‘child’ of any person includes a child who is born after the person’s death after a period of gestation in the uterus that commenced before the person’s death and survives the person for at least 30 days after birth: NSW s 3(2). As to the meaning of ‘dependent’ in this context, see 16.22–16.29. As to the meaning of ‘household’ in this context, see 16.21. As to the meaning of ‘close personal relationship’, see 16.20. The final dot point did not appear in the definition of ‘eligible person’ in NSW 1982 s 6(1). Fede v Dell’Arte [2010] NSWSC 1113; BC201007413 at [48] per Hallen AsJ. NSW s 59(1)(b). Interpretation Act 1987 (NSW) s 21C(2). Two persons are ‘related by family’ if: (a) one is the child (including an adopted child) of the other; (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or (c) they have a parent in common (including an adoptive parent of either or both of them): Interpretation Act 1987 (NSW) s 21C(4). The foregoing applies: (a) even if an adoption has been declared void or is of no effect; and (b) to adoptions under the law of any place (whether in or out of Australia) relating to the adoption of children: Interpretation Act 1987 (NSW) s 21C(5). It also applies in relation to a child whose parentage is transferred as a result of a parentage order, or an interstate parentage order, within the meaning of the Surrogacy Act 2010 (NSW) in the same way as it applies in relation to an adopted child, even if the parentage order is discharged or otherwise ceases to have effect. For that purpose, a reference to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order: Interpretation Act 1987 (NSW) s 21C(6). ‘Registered relationship’ and ‘interstate registered relationship’ take their meaning from the Relationships Register Act 2010 (NSW), an Act that makes provision for, inter alia, the registration of de facto relationships. Interpretation Act 1987 (NSW) s 21C(2). Interpretation Act 1987 (NSW) s 21C(3) (equating to the list of indicators of a domestic partnership

in the Australian Capital Territory: see 16.9). Interpretation Act 1987 (NSW) s 21C(3). Thompson v Public Trustee of New South Wales [2010] NSWSC 1137; BC201007563 at [78] per Hallen AsJ (who found that, while the plaintiff and the deceased may have been in a de facto relationship in the 1980s, it had ended by 1992: at [90]). 76. Ye v Fung [2006] NSWSC 243; BC200602070 at [65] per Gzell J. 77. See, for example, Barker v Linklater [2007] QSC 125; BC200704138 (although there was evidence of companionship over a long period — which included a sexual relationship in the past, that the applicant assisted with work around the house particularly the outside work, and that the applicant was the deceased’s carer in her last years — Lyons J did not consider this sufficient to establish that the applicant was the deceased’s de facto partner at the time of her death, even though he had been living in the same house for the final 2 years of the deceased’s life: at [93], [94]). 78. See, for example, Chan v Mazurkiewicz [2015] WASC 432; BC201511097 (where Le Miere J found no de facto relationship at the relevant time, remarking that the matters that carry most weight are: [1] the parties did not reside together; [2] each was financially independent; [3] they maintained a friendship and general support, including a sexual relationship, but had no mutual commitment to a shared life together: at [81]). 79. [2010] NSWSC 1137; BC201007563 at [82]. 80. See, for example, Green v Green (1989) 17 NSWLR 343. 81. Thompson v Public Trustee of New South Wales [2010] NSWSC 1137; BC201007563 at [83]. See, for example, Re Manlio [2015] VSC 733; BC201512652 at [56]–[58] per McDonald J (in the context of whether the claimant was an ‘unregistered domestic partner’ of the deceased, the evidence indicated that the deceased was in a committed relationship with a woman other than the applicant). 82. Sadiq v NSW Trustee & Guardian [2015] NSWSC 716; BC201504868 at [198] per Hallen J (aff’d Sadiq v NSW Trustee & Guardian [2016] NSWCA 62; BC201602224). 83. Marando v Rizzo [2012] NSWSC 739; BC201205067 at [52]. 84. Re Estate of Sigg (deceased) [2009] VSC 47; BC200900908 at [7] per Pagone J. 85. Interpretation Act 1987 (NSW) s 21C(3)(b). 86. Yesilhat v Calokerinos [2015] NSWSC 1028; BC201507007 at [36] per White J. 87. Sadiq v NSW Trustee & Guardian [2015] NSWSC 716; BC201504868 at [199] per Hallen J (aff’d Sadiq v NSW Trustee & Guardian [2016] NSWCA 62; BC201602224). 88. (SC(NSW), Waddell CJ in Eq, 6 June 1989, unreported) BC8902087. See also Dunk v Public Trustee [2003] NSWSC 37; BC200300197 (where McLaughlin M found a couple to be de facto partners despite the fact that they did not live together all the time). 89. Forsyth v Sinclair [2010] VSCA 147; BC201004190 at [88]. 90. See in particular Forsyth v Sinclair [2010] VSCA 147; BC201004190 at [106], [107] per Redlich JA. 91. As to the meaning of ‘de facto relationship’, see 16.15–16.18. 92. Within the meaning of the Property (Relationships) Act 1984 (NSW) s 5. 93. NSW s 57(2). 94. See Status of Children Act 1996 (NSW) ss 9–14. 95. As to the rebuttal of parentage presumptions, see Status of Children Act 1996 (NSW) s 15. 96. Within the meaning of the Children and Young Persons (Care and Protection) Act 1998 (NSW). 97. See 16.46. 98. As to the meaning of ‘wholly or partly dependent’, see 16.22–16.29. 99. As to the meaning of ‘household’, see 16.21. 100. Munro v Lake (SC(NSW), 8 February 1991, McLelland J, unreported) BC9102380. 101. Adoption Act 2000 (NSW) s 95(2)(a). 74. 75.

102. NSW s 3(3). 103. Amprimo v Wynn [2015] NSWCA 286; BC201509162 at [77] per Meagher JA, with whom McColl and Gleeson JJA concurred. 104. NSW s 3(4). 105. Sharpless v McKibbin (2008) DFC ¶95–414; [2007] NSWSC 1498; BC200711790 at [71] per Brereton J (in the context of the same phrase in the Property (Relationships) Act 1984 (NSW) s 5) (who disclaimed the suggestion that the approach applicable to a marriage-like relationship should also be applied in the context of a ‘close personal relationship’ not amounting to a de facto relationship; rather, ‘close personal relationships’ within the definition cover a wide range of relationships, and typically do not involve ‘a practical union of lives and property’); Jurd v Public Trustee [2001] NSWSC 632; BC200104227 at [22]–[24] per Macready M; Harkness v Harkness [2011] NSWSC 1421 at [41] per Hallen AsJ. 106. Harkness v Harkness [2011] NSWSC 1421 at [42] per Hallen AsJ. 107. See Hayes v Marquis [2008] NSWCA 10; BC200800783 at [78] per McColl JA (noting that the statutory language does not require full-time cohabitation); Amprimo v Wynn [2015] NSWCA 286; BC201509162 at [77] per Meagher JA, with whom McColl and Gleeson JJA concurred (‘the activity of living together does not require that the living occur at or from a single place or that the relevant people spend all of their time living together at that place or those places’). 108. The latter, it is said, invites a consideration of factors including: whether the persons had a common residential address; where they usually slept at night (for example, when not absent temporarily for holidays, employment or for other reasons); and where they usually kept their clothing, domestic and personal effects: Harkness v Harkness [2011] NSWSC 1421 at [42] per Hallen AsJ. 109. Such as the sharing of food or eating arrangements: Dridi v Fillmore [2001] NSWSC 319; BC200101940 at [103] per Macready M (in the context of the same phrase in the Property (Relationships) Act 1984 (NSW) s 5). 110. Cf Bayssari v Bazouni [2014] NSWSC 910; BC201405372 at [54] per Ball J (who found no ‘close personal relationship’ between a nephew and his aunt given that ‘they lived substantially independent lives’). 111. Bar-Mordecai v Hillston [2004] NSWCA 65; BC200401047 at [90] per the court. 112. See, for example, Barlevy v Nadolski [2011] NSWSC 129; BC201103245; Geoghegan v Szelid [2011] NSWSC 1440; BC201111017. 113. See, for example, McCarthy v Tye [2015] NSWSC 1947; BC201512539 (where the applicant lived in the testatrix’s house, initially as a boarder, but in later years accompanied her on holidays and to family events, and acted as her carer). 114. Dridi v Fillmore [2001] NSWSC 319; BC200101940 at [103] per Macready M (in the context of the same phrase in the Property (Relationships) Act 1984 (NSW) s 5); Harkness v Harkness [2011] NSWSC 1421 at [46], [47] per Hallen AsJ. 115. Hayes v Marquis [2008] NSWCA 10; BC200800783 at [87] per McColl JA (‘Psyche is just as much a personal attribute requiring sustenance as one’s physical self’); Harkness v Harkness [2011] NSWSC 1421 at [49] per Hallen AsJ. 116. Hayes v Marquis [2008] NSWCA 10; BC200800783 at [76] per McColl JA. 117. Fung v Ye [2007] NSWCA 115; BC200703562 at [30] per Young CJ in Eq, with whom Tobias JA and Bell J concurred (adding that ‘[i]t is a common experience for people whose friends and relations are in hospital to volunteer to handle the patient’s laundry needs etc and where this happens in the case of a person in a domestic relationship, that is fairly good evidence that the relationship is continuing even though the parties may fear that the patient has a terminal illness’).

118. Markulin v Drew (1993) DFC ¶95–140 at 76,728; BC9301828 per Young J. See also Kotke v Saffarini [2005] 1 FCR 642; [2005] EWCA Civ 221 at [28] per Potter LJ (opining that use of the word ‘household’ in the equivalent English legislation embodies ‘a concept somewhat elusive of definition, combining as it does both the physical connotation of a place, ie, a particular house or home and personal connotations of association, ie, the family or household resident within it’). 119. See, for example, Tsecouras v Price [2006] NSWSC 701; BC200605242 at [88] per Macready AsJ (where the applicant could in no sense be part of the family unit and thus part of the family household, as he had a room for which he paid and lived his own separate life); McCarthy v Tye [2015] NSWSC 1947; BC201512539 at [33]–[36] per Young AJA. 120. See, for example, Russell v NSW Trustee & Guardian [2013] NSWSC 370; BC201301870 (where the evidence revealed that the applicant stayed only occasionally in the deceased’s house, and ‘was no more than a visitor, or a guest, who the deceased permitted to use the tool room as a place to sleep … until his new accommodation, to be provided by the Department of Housing, became available’: at [178] per Hallen J); Amprimo v Wynn [2015] NSWCA 286; BC201509162 (where although the applicant stayed at the deceased’s home on most weekends, ‘she was not someone who had an ongoing and permanent living arrangement with respect to the house so as to be a member of the household’ but was instead a visitor, her purpose being that of accompanying the deceased: at [93] per Meagher JA, with whom McColl and Gleeson JJA concurred). 121. (SC(NSW), Needham J, 1 August 1989, unreported) BC8901894 at 6 (although conceding it to be ‘to some degree a borderline case’). 122. Munro v Lake (SC(NSW), 8 February 1991, McLelland J, unreported) BC9102380 at 2. See also Oakes v Oakes [2014] NSWSC 1312; BC201408173 at [3] per Pembroke J (speaking of ‘some element of frequency of contact, some element of mutual support and some element of community of resources’). 123. [2001] NSWSC 537; BC200103491 at [17]. 124. (SC(NSW), 8 February 1991, McLelland J, unreported) BC9102380. 125. Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 per Hope AJA, with whom Clarke and Sheller JJA concurred; Lawrence v Public Trustee [2001] NSWSC 375; BC200102208 at [14] per Macready M. 126. Lee v Munro (1928) 98 LJKB 49 at 53 per Sankey LJ. 127. Petrohilos v Hunter (1991) 25 NSWLR 343 at 346–7 per Hope AJA, with whom Clarke and Sheller JJA concurred (noting that ‘[t]he same considerations apply to a step-child or his or her step-mother, when the child lives with the step-mother and is looked after by her’: at 347). 128. Williams v Legg (CA(NSW), Handley, Sheller and Cripps JJA, 16 March 1993, unreported) per curiam (in a passage not set out in the report at (1993) 29 NSWLR 687). 129. Fede v Dell’Arte [2010] NSWSC 1113; BC201007413 at [57] per Hallen AsJ. 130. Simons v Permanent Trustee Co Ltd [2005] NSWSC 223; BC200501471 at [42] per Palmer J. See also Morrison v Carruthers [2010] NSWSC 430; BC201003023 at [12] per Bergin CJ in Eq (who opined that ‘partly dependent’ means that ‘the applicant relied on the deceased to provide financial support without which the applicant would not have been able to meet the reasonable costs of living’). 131. Benney v Jones (1991) 23 NSWLR 559 at 560 per Mahoney JA (‘Such emotional attachment as the plaintiff had to the deceased was not, as such, within the term as there used’), at 566 per Priestley JA (who rejected the submission concerning the dependency based solely on the existence of the (sexual) relationship, without regard to any element of financial dependence); Simons v Permanent Trustee Co Ltd [2005] NSWSC 223; BC200501471 at [43] per Palmer J. Cf Marando v Rizzo [2012] NSWSC 739; BC201205067 at [61], [209]–[211] per Hallen AsJ (a reading which seems to indicate a willingness to take into account emotional dependence outside of financial dependence).

132. Simons v Permanent Trustee Co Ltd [2005] NSWSC 223; BC200501471 at [42]. 133. Griffiths v Westernhagen [2008] NSWSC 851; BC200807674 at [58] per Hamilton J. See, for example, Boviard v Frost (2009) 3 ASTLR 155; [2009] NSWSC 337 at [95] per Brereton J (where the deceased’s sister was found to be dependent on the deceased, given the evidence that the sister had arranged her affairs on the basis of a promise made by the deceased to support her for the rest of her life: at [102]). 134. Bayssari v Bazouni [2014] NSWSC 910; BC201405372 at [53] per Ball J (on the facts finding that the applicant ‘was an independent adult who found it convenient to live with his aunt because of his financial position’, which alone did not suffice to establish that he was dependent on her’). 135. See 16.14. 136. [2017] NSWSC 111; BC201701179 at [68]. 137. Morrison v Carruthers [2010] NSWSC 430; BC201003023 at [12] per Bergin CJ in Eq. 138. Stephens v Perpetual Trustee Company Ltd (2009) 76 NSWLR 15; [2009] NSWSC 1078; BC200909221 at [25] per Palmer J (where the deceased suffered severe brain injury and so could not make a decision to provide support). 139. Blackley v Proctor [2001] NSWSC 537; BC200103491 at [16] per Berecry AM. See, for example, Stephens v Perpetual Trustee Company Ltd (2009) 76 NSWLR 15; [2009] NSWSC 1078; BC200909221 (where Palmer J found that an applicant, who took the sole responsibility to care for her grandson, a minor, after he suffered severe brain injury and received a large award of damages, before dying aged 12, was dependent upon the grandson for the purposes of an application for family provision); Re Rodi (deceased) [2016] NSWSC 1696; BC201610253 (where Rein J ruled that merely because the residential arrangement between the applicant and his grandmother had an element of co-dependency did not preclude a finding that the applicant was ‘wholly or partly dependent’ on his grandmother: at [49]; see further 18.39). 140. Stephens v Perpetual Trustee Company Ltd (2009) 76 NSWLR 15; [2009] NSWSC 1078; BC200909221 at [27] per Palmer J (who did, however, envisage circumstances where the existence of a contract for services would not disqualify the employee as a dependent of the employer, giving the example of a father who, in order to provide financial support for an adult disabled child who could not otherwise gain employment in the marketplace, employs the child to perform some menial tasks in the father’s business). 141. Ball v Newey (1988) 13 NSWLR 489 at 491 per Samuels JA, at 493–4 per Mahoney JA (involving the purchase of property by same-sex partners, the case having been decided prior to same-sex partners becoming eligible to apply for provision). 142. [2010] NSWCA 176; BC201005167. 143. Alexander v Jansson [2010] NSWCA 176; BC201005167 at [14] per Brereton J, with whom Basten JA and Handley AJA concurred. 144. Alexander v Jansson [2010] NSWCA 176; BC201005167 at [14]. 145. McKenzie v Baddeley (CA(NSW), 3 December 1991, unreported) BC9101389 at 6 per Priestley JA, with whom Hope AJA agreed. 146. McKenzie v Baddeley (CA(NSW), 3 December 1991, unreported) BC9101389 at 12 per Meagher JA (dissenting) (‘Common sense requires that certain trivial activities should be disregarded’). 147. Morrison v Carruthers [2010] NSWSC 430; BC201003023 at [12] per Bergin CJ in Eq; Alexander v Jansson [2010] NSWCA 176; BC201005167 at [13] per Brereton J, with whom Basten JA and Handley AJA concurred. 148. As to the meaning of ‘dependent’ in this context, see 16.22–16.29. 149. As to the meaning of ‘household’ in this context, see 16.21. 150. NSW s 57(1)(e) (formerly NSW 1982 s 6(1) (definition of ‘eligible person’, subparagraph (d)).

151. 152. 153. 154. 155. 156. 157. 158. 159. 160. 161. 162. 163. 164. 165. 166. 167. 168. 169. 170.

171. 172. 173. 174. 175.

176.

Collicoat v McMillan [1999] 3 VR 803 at 824; BC9502481 per Ormiston J. [2005] NSWSC 223; BC200501471 at [25]. (CA(NSW), Kirby P, Mahoney and Priestley JJA, 5 December 1991, unreported) BC9101375. Tsivinsky v Tsivinsky (CA(NSW), Kirby P, Mahoney and Priestley JJA, 5 December 1991, unreported) BC9101375 at 19. [2010] NSWSC 1113; BC201007413. Fede v Dell’Arte [2010] NSWSC 1113; BC201007413 at [56]. Simons v Permanent Trustee Co Ltd [2005] NSWSC 223; BC200501471 at [26] per Palmer J. Tsivinsky v Tsivinsky (CA(NSW), Kirby P, Mahoney and Priestley JJA, 5 December 1991, unreported) BC9101375 at 19 per Kirby P. [2005] NSWSC 593; BC200504633. Re Sherborne Estate [2005] NSWSC 593; BC200504633 at [43], [45]. Cf Thirkell v Cox [2010] NSWSC 99; BC201000779, discussed at 16.34. Re Sherborne Estate [2005] NSWSC 593; BC200504633 at [48]. Simons v Permanent Trustee Co Ltd [2005] NSWSC 223; BC200501471 at [27] per Palmer J. Morrison v Carruthers [2010] NSWSC 430; BC201003023 at [12] per Bergin CJ in Eq. [2010] NSWSC 430; BC201003023 at [13]. Morrison v Carruthers [2010] NSWSC 430; BC201003023 at [52]. NSW s 57(1)(e) (formerly NSW 1982 s 6(1) (definition of ‘eligible person’, subparagraph (d)). [2010] NSWSC 99; BC201000779. [2005] NSWSC 593; BC200504633, discussed at 16.32. Thirkell v Cox [2010] NSWSC 99; BC201000779 at [51], [52]. See, for example, McLeod v Radnidge [2009] NSWSC 1105; BC200909391 (where McLaughlin AsJ found that, as the applicant foster child was regarded by the deceased as if he were her son, he was an eligible person: at [37]); Phegan v Hynes [2011] NSWSC 246; BC201103924 (where Macready AsJ held that, as the applicant foster child had, from the age of 6 years, lived with and been dependent upon the deceased, who (with his wife) raised the applicant as their own child for the majority of her childhood, she was eligible to apply for provision: at [24], [28]); Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522; BC201302460 (where White J, in obiter, would have awarded a foster child, who had been integrated into the deceased’s family, $90,000 from a $400,000 estate primarily in view of his precarious financial position); Hamilton v Moir [2013] NSWSC 1200; BC201312591 (where the applicant, who had been the deceased’s foster child for around 18 months, was found to have standing to apply for provision in the face of evidence of her ongoing relationship with the deceased (even if not integrated as part of the deceased’s family); the application succeeded, Hallen J ordering that the applicant receive an additional sum of $80,000 out of a $900,000 estate). [2002] NSWSC 534; BC200203391 at [43] (although the applicants were ultimately awarded only $170,000 and $150,000 respectively out of a $4m estate). [2010] NSWSC 475; BC201003152 at [54]. [2001] NSWSC 375; BC200102208 at [15]. See 16.23. See, for example, Clinch v Swift (SC(NSW), Young J, 13 October 1986, unreported) BC8600634 at 5–6; Alquist v ANZ Executors and Trustee Company Ltd [2004] NSWSC 1116; BC200407870 at [24] per Berecry AM. See, for example, Petrucci v Fields [2004] VSC 425; BC200407183 (where Mandie J held that the testator had responsibility to provide for the proper maintenance and support of his widowed daughter-in-law in view of their long relationship (which broke down due to no particular fault of hers), the significant contribution she made to the welfare of the testator and his late wife, and her

177.

178. 179. 180. 181. 182. 183. 184. 185.

186. 187. 188. 189. 190. 191. 192. 193.

194. 195. 196. 197. 198. 199. 200.

demonstrated need: at [61]); Oakes v Oakes [2014] NSWSC 1312; BC201408173 (where the applicant, who was the former daughter-in-law of the deceased, spent most of her adult life living and working in tri-partite relationship with the deceased and his son on their farming property; coupled with the foregoing, that the deceased provided accommodation to the applicant, who was in turn dependent on the deceased and in penurious financial circumstances, substantiated standing to apply for provision and, in what Pembroke J described as ‘a special case’, an award of a $100,000 provision: at [36]). A reference in this Act to a child or issue of any person includes a child or issue en ventre sa mere at the death, provided such child or issue is born alive and remains alive for a period of 30 days: Qld s 5A. Qld s 41(1). Qld s 5AA(1) (referring to the meaning of ‘de facto partner’ in the Acts Interpretation Act 1954 (Qld) s 32DA, and the meaning of ‘civil partner’ in the Acts Interpretation Act 1954 (Qld) Sch 1). Qld s 5AA(2). Qld s 5AA(4)(a). ‘Civil partnership’ means a civil partnership registered under the Civil Partnerships Act 2011 (Qld): Acts Interpretation Act 1954 (Qld) Sch 1. Specifically, under s 18 of the Civil Partnerships Act 2011 (Qld). Qld s 5AA(4)(b). Acts Interpretation Act 1954 (Qld) s 32DA(1), 32DA(5)(a). A person is ‘related by family’ to another person if the person and the other person would be within a prohibited relationship within the meaning of the Marriage Act 1961 (Cth) s 23B, if they were parties to a marriage to which that section applies: Acts Interpretation Act 1954 (Qld) s 32DA(5)(b). Acts Interpretation Act 1954 (Qld) s 32DA(2) (including matters equating to the list of indicators of a domestic partnership in the Australian Capital Territory: see 16.9). See 16.15. Acts Interpretation Act 1954 (Qld) s 32DA(3). Acts Interpretation Act 1954 (Qld) s 32DA(4). See generally 16.15–16.18. Qld s 40. Qld s 40A(1), (2). Qld s 40A(3). This subsection was introduced (by the Justice and Other Legislation (Miscellaneous Provisions) Act 1997 (Qld), with effect on 20 June 1997; there was no retrospective operation: see Re John [2000] 2 Qd R 322; [1999] QCA 444; BC9907058) to widen the ambit of the definition of stepchild as a direct response to a line of authority that denied the status of a ‘stepchild’ to a person whose natural parent predeceased his or her step-parent: Re Oakley [1986] 2 Qd R 269; Re Burt [1988] 1 Qd R 23; Re Marstella [1989] 1 Qd R 638; Re Monckton [1996] 2 Qd R 174. See further de Groot and Nickel, pp 256–8. The latter line of authority has been followed in Tasmania: see Basterfield v Gay (1994) 3 Tas R 293; BC9405627 (where the testatrix had not married the applicant’s natural father); Connors v Tasmanian Trustees Ltd (1996) 6 Tas R 267; BC9605578. Qld s 5. Qld s 40. Lohse v Lewis [2004] 2 Qd R 648; [2004] QSC 36; BC200400757 at [95] per Mullins J. Lee v Munro (1928) 98 LJKB 49 at 53 per Sankey LJ. Re Cobb [1989] 1 Qd R 522 at 523 per Kneipp J. [2004] 2 Qd R 648; [2004] QSC 36; BC200400757 at [96], [97]. SA s 6.

201. ‘Spouse’, in relation to a deceased person, means a person who was legally married to the deceased as at the date of his or her death: SA s 4. 202. As to the meaning of ‘domestic partner’, see 16.42. 203. As to the meaning of ‘child’, see 16.43. 204. SA s 4. A declaration that a person is a ‘domestic partner’ is effected pursuant to s 11B of the Family Relationships Act 1975 (SA). 205. Family Relationships Act 1975 (SA) s 11A. 206. Family Relationships Act 1975 (SA) s 11B(3) (which lists matters similar to the indicators of a domestic partnership in the Australian Capital Territory: see 16.9). 207. Family Relationships Act 1975 (SA) s 11B(2). 208. Family Relationships Act 1975 (SA) s 11. 209. Family Relationships Act 1975 (SA) s 11, note. 210. SA s 4. 211. See Family Relationships Act 1975 (SA) s 10HB. 212. Adoption Act 1988 (SA) s 9(1). 213. This draws support from the decision of the Victorian Full Supreme Court in Popple v Rowe [1998] 1 VR 651; BC9701125 to the effect that the term ‘children’, in the (then) Victorian legislation, meant the natural children of the deceased and not stepchildren; this decision prompted a change to the eligibility requirements in Victoria: see 16.47. 214. SA s 6(g). 215. McGuffie v Korczynski (2003) 228 LSJS 79; [2003] SASC 178; BC200303879. 216. Tas s 3A. 217. As to the meaning of ‘spouse’, see 16.45. 218. As to the meaning of ‘child’, see 16.46. 219. Tas s 2(1) (referring to the meaning of ‘significant relationship’ in the Relationships Act 2003 (Tas)). 220. Relationships Act 2003 (Tas) s 4(1). 221. Registration of significant relationships is effected under Pt 2 of the Relationships Act 2003 (Tas). 222. Relationships Act 2003 (Tas) s 4(2). 223. Relationships Act 2003 (Tas) s 4(3) (which lists matters similar to the indicators of a domestic partnership in the Australian Capital Territory: see 16.9). 224. Tas s 4(4) (which thereby ousted the former approach that applied in respect of a de facto spouse, as to which see Re Estate of Williams (2004) 13 Tas R 309; [2004] TASSC 154; BC200408728). 225. Tas s 2(1). 226. Tas s 2(1). 227. Tas s 2(1) (as amended, as from 13 October 2015, by the Justice and Related Legislation (Miscellaneous Amendments) Act 2015 (Tas); the amended definition does not apply in respect of a claim against the estate of a person whose death occurred before 13 October 2015: Tas s 2(2)). 228. Basterfield v Gay (1994) 3 Tas R 293; BC9405627 (where the natural parent and step-parent of the applicant had never married, but the natural parent had precedeased the step-parent); Connors v Tasmanian Trustees Ltd (1996) 6 Tas R 267; BC9605578 (where Zeeman J ruled that, as the applicants’ natural mother had died some 12 years before the deceased’s former stepfather’s death, the applicants lacked standing to seek provision out of the latter’s estate: at 272). These decisions followed a Queensland line of authority (Re Oakley [1986] 2 Qd R 269; Re Burt [1988] 1 Qd R 23; Re Marstella [1989] 1 Qd R 638), which prompted a change in the Queensland legislation: see 16.39. 229. [1998] 1 VR 651; BC9701125 (judgment delivered on 12 March 1997) (see at 655–7 per Brooking JA, at 659–60 per Winneke P (who held that the word ‘children’ ‘does have a fixed, rather than a

230. 231. 232. 233. 234. 235. 236. 237. 238. 239.

240. 241. 242. 243. 244. 245. 246. 247.

248. 249. 250.

251. 252.

protean, meaning and it is confined to applicants who have a blood relationship to the deceased unless statutory provision has been made to the contrary’: at 659), at 662 per Hayne JA). The Wills Act 1997 (Vic) introduced the current provisions of Pt IV of the Administration and Probate Act 1958 (Vic), as amended by the Miscellaneous Acts (Omnibus No 1) Act 1998 (Vic), which came into operation on 20 July 1998. Coombes v Ward [2004] VSCA 51; BC200401682 at [3] per Winneke P. Vic s 91 (superseded). Coombes v Ward [2004] VSCA 51; BC200401682 at [20] per Bongiorno JA. Bentley v Brennan [2006] VSC 113; BC200602728 at [23] per Byrne J. Unger v Sanchez [2009] VSC 541; BC200910756 at [59] per Kaye J. Victoria, Parliamentary Debates, Legislative Assembly, 9 October 1997, 436 (J Wade, AttorneyGeneral). Victoria, Parliamentary Debates, Legislative Assembly, 9 October 1997, 436 (J Wade, AttorneyGeneral). Vic s 97(7) (since repealed): see 23.24. Forsyth v Sinclair [2010] VSCA 147; BC201004190 at [85] per Neave JA, with whom Redlich JA and Habersberger AJA concurred. See also Bentley v Brennan [2006] VSC 113; BC200602728 at [23] per Byrne J. Schmidt v Watkins [2002] VSC 273; BC200204063 at [9]. Vic s 91(4)(e) (emphasis supplied) (superseded). Corbett v State Trustees Ltd [2010] VSC 481; BC201007929 at [75] per Kyrou J. Corbett v State Trustees Ltd [2010] VSC 481; BC201007929 at [113] per Kyrou J. [2009] VSC 541; BC200910756 at [74]. Unger v Sanchez [2009] VSC 541; BC200910756 at [74]. [2009] VSC 541; BC200910756 at [88]. [2005] VSC 323; BC200505944 at [71], [75], [76], [90], [93] (where the applicant’s father had divorced her mother when she was a young child, and migrated to Australia with her; thereafter the deceased, who was the sister-in-law of the plaintiff’s father, assumed many of the responsibilities of a mother, after the applicant’s arrival in Australia, and as the years progressed the relationship between them continued to resemble that of a parent and child). Cf Corbett v State Trustees Ltd [2010] VSC 481; BC201007929 (where Kyrou J found no case in which an applicant who had a relationship with the deceased that was allegedly akin to that of a niece had succeeded in a family provision claim; his Honour rejected the applicant’s claim for further provision in view of the fact that, although she and her daughters had been close to the deceased years earlier, the evidence indicated that the closeness of that connection had waned for years (described as ‘cordial but distant’), and the main source of support for the deceased in the years leading to his death was the principal beneficiary of his will: at [121]); Flocas v Carlson [2015] VSC 221; BC201504703 (where McMillan J likewise denied a claim to the deceased’s niece, noting that the relationship in question was ‘no closer, perhaps less close, than ordinary relationships between aunt and niece’: at [292]). [2004] VSC 425; BC200407183 at [61]. See 16.15–16.18 (in the New South Wales context), 9.80–9.84. See, for example, Forsyth v Sinclair [2010] VSCA 147; BC201004190; Re Watchorn [2011] VSC 175; BC201102600 (involving a domestic relationship between the deceased and the applicant, of some 40 years in duration, where the parties were perceived by others as a couple even though absent any sexual element). [2002] VSC 273; BC200204063. See 16.22–16.29.

253. 254. 255. 256.

257. 258. 259. 260.

261. 262. 263. 264. 265. 266.

267.

268. 269. 270.

[2002] VSC 273; BC200204063 at [25]. [2002] VSC 273; BC200204063 at [12]. Vic s 91(4) (superseded). Schmidt v Watkins [2002] VSC 273; BC200204063 at [12] (adding that the matters to which the court must have regard ‘are redolent of the approach taken by the courts over the decades since the first disappointed relative invoked the legislation when seeking enforcement of the deceased’s duty to him or her as a member of the deceased’s immediate family’: at [14]). See 17.62–17.66. See 17.77, 17.78. See 17.79, 19.11, 19.12. Schmidt v Watkins [2002] VSC 273; BC200204063 at [8] per Harper J (‘the touchstone remains that of the wise and just testator; and the court must respect freedom of testation except in those cases where that freedom has been abused by a failure by the deceased to fulfil his or her responsibility to such a claimant’); MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318; BC200305001 at [38] per Dodds-Streeton J (‘The retention of the traditional words “proper maintenance and support”, the express reference to the responsibility of the testator in the legislation and the acknowledgment in the Second Reading Speech that the remedial legislation was directed at facilitating applications by those who have “moral claims”, reinforce rather than attenuate the application of the traditional concepts of moral duty and the wise and just testator’). Unger v Sanchez [2009] VSC 541; BC200910756 at [70] (emphasis supplied). VLRC, 2013, at 6.8. VLRC, 2013, recommendation 38. See further S Renwick, ‘“Responsibility” to Provide: Family Provision Claims in Victoria’ (2013) 18 Deakin L Rev 159. Vic s 90. ‘Spouse’ of a person who dies means a person who was married to the person at the time of the person’s death: Vic s 3(1). ‘Domestic partner’ of a person who dies means a registered domestic partner or an unregistered domestic partner of that person: Vic s 3(1). ‘Registered domestic partner’ of a person who dies means a person who, at the time of the person’s death, was in a registered domestic relationship with the person within the meaning of the Relationships Act 2008 (Vic): Vic s 3(1). ‘Unregistered domestic partner’ of a person who dies means a person (other than a registered domestic partner of the person) who, although not married to the person: (a) was living with the person at the time of the person’s death as a couple on a genuine domestic basis (irrespective of gender); and (b) either: (i) had lived with the person in that manner continuously for a period of at least 2 years immediately before the person’s death; or (ii) is the parent of a child of the person, being a child who was under 18 years of age at the time of the person’s death: Vic s 3(1). ‘Disability’ means a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition, where the impairment(s): (a) are, or are likely to be, permanent; (b) result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, communication, social interaction, learning, mobility, self-care and/or self-management; and (c) affect the person’s capacity for social or economic participation: Vic s 90. ‘Registered caring partner’ of a person who dies means a person who, at the time of the person’s death, was in a registered caring relationship with the person within the meaning of the Relationships Act 2008 (Vic): Vic s 3(1). Vic s 91(2)(b). Vic s 91(4)(c).

271. 272. 273. 274.

275.

276.

277. 278. 279. 280. 281. 282. 283. 284. 285. 286. 287.

WA s 7(1). As to the meaning of ‘de facto partner’, see 16.54. As to the meaning of ‘child’, see 16.55. Before 16 January 2013 (being the commencement date of the Inheritance (Family and Dependants Provision) Act 2011 (WA)), the relevant provision referred to a child en ventre sa mere as at the deceased’s death. ‘En ventre sa mere’ means, literally, in the mother’s belly, and refers to a fetus in utero, which is treated as a child for this purpose provided that it is subsequently born alive. Referring to the equivalent provision in the English legislation (Inheritance (Provision for Family and Dependants) Act 1975 (UK) s 1(1A)), Stephenson LJ in Jelly v Illife [1981] Fam 128 at 136 remarked that ‘[i]n considering whether a person is being maintained immediately before the death of the deceased, it is the settled basis or general arrangement between the parties as regards maintenance during the lifetime of the deceased which has to be looked at, not the actual, perhaps fluctuating, variation of it which exists immediately before his or her death’ (emphasis supplied). It followed, in the words of Griffiths LJ (at 141), that the words ‘immediately before the death of the deceased’ are not to be construed literally as applying to the de facto situation at death, ‘but refer to the general arrangements for maintenance subsisting at the time of death’. See also Re Beaumont (deceased) [1980] Ch 444 at 452 per Megarry VC (opining that it seems ‘improbable that the word “immediately” in [this context] was intended to confine the gaze of the court to whatever was the state of maintenance existing at that precise moment’ and that ‘[g]iven that the moment at which the examination must be made is the moment before the death of the deceased, what has to be examined ought not … to be the de facto state or balance of maintenance at that moment, but something more substantial and enduring’). See, for example, Re Dix (deceased) [2004] 1 WLR 1399; [2004] EWCA Civ 139 (where Ward LJ, with whom Mummery and Rix LJJ agreed, endorsed the trial judge’s conclusion that the 27-year de facto cohabitation was ‘the norm of their relationship’, to be contrasted with the ‘abnormal situation in the last three months of [the deceased’s] life’ when, because of his abuse of alcohol, the applicant found herself unable ‘to cope with the consequences of living with him and moved out’; as a result, the 3-month absence did not preclude the applicant being treated as living as the de facto partner of the deceased immediately before the latter’s death). Before 16 January 2013 (being the commencement date of the Inheritance (Family and Dependants Provision) Act 2011 (WA)), the relevant provision referred to a child en ventre sa mere as at the deceased’s death. ‘Stepchild’ is to be defined as a person who was alive on the date on which the deceased married or entered into a de facto relationship with a parent of the person, but who is not a child of the deceased: WA s 4(1). This class of eligible person was added by the Inheritance (Family and Dependants Provision) Act 2011 (WA), with effect from 16 January 2013. Namely $517,000: Family Provision Regulations 2013 (WA) reg 3. This class of eligible person was added by the Inheritance (Family and Dependants Provision) Act 2011 (WA), with effect from 16 January 2013. Interpretation Act 1984 (WA) s 13A(4). Interpretation Act 1984 (WA) s 13A(1), (3)(a). Interpretation Act 1984 (WA) s 13A(2) (which are factors similar to the indicators of a domestic partnership in the Australian Capital Territory: see 16.9). Interpretation Act 1984 (WA) s 13A(3)(b). WA s 4(1). Adoption Act 1994 (WA) s 75(1)(a). See the cases mentioned in the notes to 16.39.

288. By the Inheritance (Family and Dependants Provision) Act 2011 (WA). 289. WA s 7(1)(ea), (1)(eb). 290. While there is no Australian case authority directly on point, the issue has been comprehensively addressed by New Zealand’s highest court in Wood-Luxford v Wood [2014] 1 NZLR 451; [2013] NZSC 153 (which held that the claimant, who was en ventre sa mere at the time when his mother married her husband, should not be treated as a stepchild of the husband who, together with the mother, died in a road accident: see at [22]–[26] per Elias CJ, also delivering the reasons of McGrath and William Young JJ).

[page 570]

CHAPTER 17

Applications for Provision Basic Procedural Matters Going to Applications Court to which application may be made Terms of will or intestacy rules to be considered prior to making application Onus of proof Applicant for provision bears the main onus Applicant’s duty to make full disclosure of financial position Standard of proof Service of application for order Application made whether or not representation has been granted Application where deceased is a minor or otherwise legally incapable Application heard after the applicant’s death Application by single person can be regarded as application on behalf of others Summary dismissal of application Time for Making Application Limitation periods Discretion to extend time Factors relevant to the issue of extending time Length of the delay Explanation for delay Whether applicant remains without redress (including against defaulting lawyer) Where negotiations remain on foot Strength of the applicant’s case Presence or absence of prejudice

17.2 17.2 17.3 17.4 17.4 17.6 17.9 17.10 17.11 17.12 17.13 17.16 17.19 17.22 17.22 17.23 17.25 17.26 17.28 17.34 17.36 17.37 17.39

Nature of the applicant Unconscionable conduct Distribution of the estate

17.40 17.42 17.43

Duties of Personal Representatives in Family Provision Applications Primary duty to uphold the will Duty regarding distribution when notice of a family provision application Protection of personal representatives arising out of distributions

17.45 17.45

The Two-stage Substantive Inquiry The first (‘jurisdictional’) stage The second (‘discretionary’) stage

17.57 17.57 17.58

The Jurisdictional Threshold Commonality in statutory terminology

17.59 17.59

17.48 17.50

[page 571] Inquiry into ‘moral duty’, ‘moral responsibility’ or ‘moral claim’ Quantitative criteria — ‘adequate’ and ‘proper’ ‘Adequate’ distinguished from ‘proper’ Link between ‘adequacy’ and ‘need’ Qualitative criteria Perspective from which inquiry is made ‘Wise and just’ testator ‘Accepted community standards’ Timing of inquiry

17.62 17.67 17.67 17.70 17.76 17.77 17.77 17.79 17.80

17.1 With a view to making an application for provision, an applicant must give consideration to what is required to establish a claim, as the onus lies on an applicant in this context. Any such application must either be made within the stipulated period, or otherwise rests on the court extending time. Against the applicant’s claim will ordinarily be the executor of the deceased’s will, who is duty bound to uphold the will, but who must in the usual case withhold

distribution once notice of the claim is given. The applicant, in addition to being an eligible person,1 must convince the court that he or she has been left without adequate provision for his or her maintenance (the jurisdictional stage) and that there is reason for the court, in the circumstances, to order provision in his or her favour (the discretionary stage). Each of these points is elaborated in this chapter.

Basic Procedural Matters Going to Applications Court to which application may be made 17.2 In the territories, Queensland, South Australia, Tasmania and Western Australia an application for provision lies only to the Supreme Court.2 In New South Wales it lies to either the Supreme Court or the District Court, although the latter is subject to a jurisdictional limit of $250,000 for provision.3 In Victoria, where the value of the estate does not exceed the jurisdictional limit of the County Court, the application is directed to the County Court; otherwise, the relevant court is the Supreme Court.4

Terms of will or intestacy rules to be considered prior to making application 17.3 As the core inquiry in family provision applications is whether, generally speaking, the deceased has made adequate provision for the proper maintenance of an applicant, the terms of the will, or the operation of the statutory rules on the distribution of intestate estates,5 must be closely reviewed as a precursor to ascertaining whether or not adequate provision exists.6 Only when it is ascertained what are the assets of the deceased’s estate, and how they are to devolve on his or her death, can the family provision issue be addressed. This is because the [page 572]

entitlement (if any) of the applicant under the will or intestacy, and the entitlements of others thereunder and of competing claimants,7 coupled with the size of the estate,8 directly impact upon an applicant’s prospects.

Onus of proof Applicant for provision bears the main onus 17.4 A court may only order provision upon the application of an eligible person.9 This indicates two things. First, the court lacks jurisdiction to make an order for provision except pursuant to an application. Second, consistent with the basic notion that a person who asserts must prove, the applicant bears the onus of establishing the claim for provision. Accordingly, no onus lies upon a beneficiary of the deceased’s estate to uphold the bequest.10 At the same time, though, as the beneficiary’s entitlement will necessarily be reduced if an application for provision succeeds, this gives rise to the prospect of competing claims. As the curial inquiry in family provision applications is informed by the totality of the circumstances of the case, the position (and claim) of the applicant vis-à-vis the beneficiary(ies) is hardly irrelevant. This dictates that, in practice, a beneficiary wishing to dispute the applicant’s claim may need to adduce evidence not merely to challenge the validity of that claim, but to deny it primacy over his or her bequest. Relevant to this may be the respective financial position of the beneficiary and applicant, a point made explicit by the New South Wales and Victorian legislation.11 This explains why beneficiaries, seeking to resist a claim for provision, not uncommonly adduce evidence of their own financial position. It has been judicially observed, to this end, that:12 … after making due allowance for the testator’s desire to benefit his widow and children, it has been accepted over many years that, if a beneficiary says nothing as to his or her financial position or other claims on the testator’s bounty, then the court is fairly entitled to assume that the beneficiary has no special claim other than relationship and that, in particular, he or she has adequate resources upon which to live.

17.5 The onus resting on an applicant to establish a claim for provision requires him or her to adduce relevant and admissible evidence to the court’s jurisdictional and discretionary inquiries. It is important that this evidence, or at least important aspects of it, be capable of being independently corroborated, as courts are justifiably wary (and not merely in testamentary

matters) of alleged facts that depend for proof largely on an applicant’s own evidence. So alleged communications with the deceased, lacking corroborating evidence, cannot be unquestioningly [page 573] accepted as evidence of their existence or content. Albeit in a different context, but in terms applicable in the family provision environment, it has been observed that:13 … in a claim based on communications with a deceased person the court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available.

Applicant’s duty to make full disclosure of financial position 17.6 As an applicant carries the onus of establishing that the deceased has not made adequate provision for his or her proper maintenance, advancement or support, the applicant must adduce evidence directed to the matters that go to the court’s inquiry.14 As ‘need’ goes to the core of both whether an applicant has been left without adequate provision,15 and as to the quantum of any order, evidence of the applicant’s financial and material circumstances is highly relevant. A failure to adduce any more than cursory evidence to this end is therefore unlikely to substantiate a claim for provision.16 17.7 Judges have emphasised the need for applicants to place all of those circumstances before the court ‘as fully and as frankly as possible’.17 An attitude that is, or proves to be (say, as a result of cross-examination), begrudging of financial information, or that misrepresents the applicant’s financial position, may undermine the claim. Indeed, there are occasions where an applicant’s lack of candour has influenced the court to deny provision altogether. In Dodge v Blissenden18 Blow J, having formed the opinion that the applicant was an untrustworthy and unreliable witness, was consequently unable to make any findings as to his true financial position. And for this reason his Honour was ‘unable to be satisfied that it was so poor that a just and wise father, aware of all the relevant circumstances, would have

thought it his moral duty to make any provision for the applicant in his will’.19 On other occasions it has not [page 574] precluded an order for provision,20 although proof that an applicant has lied casts a shadow on the applicant’s evidence generally.21 While the case law focuses on applicants’ disclosure obligations, a corresponding obligation applies to the executor or administrator in relation to the nature and value of the estate, and on beneficiaries who advance their financial circumstances to ground a competing claim.22 17.8 It has been said that, while the joint assets of an applicant and his or her spouse may possibly be relevant in a claim for provision, ordinarily the income and net assets of the applicant alone are of primary importance.23 If this is correct, there is no obligation on an applicant to adduce evidence of other than his or her financial position. Yet this proposition must be qualified in some important ways. First, statute in New South Wales lists, as a factor relevant to the jurisdiction and discretion to order provision, the financial circumstances of a person with whom the applicant is cohabiting.24 There are grounds to conclude, therefore, that evidence of that person’s financial position should, where relevant, be adduced in New South Wales.25 That the equivalent lists in the Australia Capital Territory and Victoria,26 though they culminate with ‘any other factor the court considers relevant’, make no explicit mention of this factor while at the same time in many ways paralleling the New South Wales list, may suggest that the position in these jurisdictions is otherwise. At the same time, it seems odd that an applicant can ‘cry poor’ while enjoying the support of a wealthy spouse or partner.27 Second, that an applicant has an equitable interest in, or legitimate claim against, the property of his or her (former) spouse or de facto partner is relevant to the applicant’s financial position, and so should be adduced before the court. The flipside is that property legally owned by the applicant may be the subject of claims by others, including their (former) spouses or partners, and so may not be representative of the applicant’s true financial position.28

Third, courts are alert to attempts by applicants to divest themselves of an income or proprietary entitlement — by, say, transferring it to their spouse or children — for the purpose of presenting themselves as lacking adequate provision for their proper maintenance.29 [page 575]

Standard of proof 17.9 As with other areas of the civil law, the relevant standard of proof in matters going to family provision is the balance of probabilities.30 Only the Western Australian legislation purports to address the matter, and does so by stating that, in any proceedings under the legislation, a matter of fact ‘shall be taken to be proved if it is established to the reasonable satisfaction of the court’.31 Consistent with this approach, it adds that, where a provision requires the court to be satisfied of the existence of any ground or fact or as to any other matter, it is sufficient if the court is reasonably satisfied of its existence.32 That the Western Australian legislators saw fit to make explicit provision on this point may suggest an intention to introduce a different standard to that otherwise applicable at general law. It seems, to this end, that proof of ‘reasonable satisfaction’ sets a higher threshold than proof ‘on the balance of probabilities’. If so, it is unclear why this form of litigation should, in Western Australia, be subjected to a more stringent standard than other civil litigation.

Service of application for order 17.10 The family provision legislation in the territories, South Australia, Victoria and Western Australia requires that notice of an application for provision be served on each executor or administrator of the deceased’s estate, and on such other persons as the court may direct.33

Application made whether or not representation has

been granted 17.11 Family provision legislation does not explicitly require that a grant of representation precede an application for provision. However, case authority determines that implicit in the statutory prescription that time commences to run from the date of the grant (other than in New South Wales and Queensland, where time runs from the date of death) is that family provision applications must follow rather than precede the grant.34 Given the relatively confined time frames applicable to family provision applications,35 requiring an applicant for provision to await a grant of representation swells the number of applications to extend time.36 Informed by this concern, it would appear, the current New South Wales Act ousted the requirement in its predecessor37 that an order for provision be consequent upon a grant of representation.38 To confirm the point, it empowers the court, on an application for provision [page 576] made in relation to an estate the administration of which has not been granted, if satisfied that it is proper to do so, to grant administration to the applicant for the purposes of permitting the application concerned to be dealt with.39 The Queensland Act empowers the court to hear and determine a family provision application although no grant has been made.40

Application where deceased is a minor or otherwise legally incapable 17.12 Typically the estate of the deceased, against which an application for provision is made, is one that belonged to a person aged (well over) 18 years. The obvious reason is that most minors have no (substantial) estate for which provision for another is morally required. This does not preclude, however, an application against the estate of a minor, ordinarily where the minor has received an inheritance or otherwise an award of damages, and the

requirement(s) for standing are otherwise met.41 The same can be said where the deceased person is mentally incapable, whether or not a minor.

Application heard after the applicant’s death 17.13 As the statutory jurisdiction is directed to making provision — commonly phrased in terms of maintenance, education and advancement in life — for an applicant to whom the deceased owed a moral duty, where an applicant has died before the matter is heard, there is clearly no scope for provision in relation to his or her future maintenance, education and advancement in life. But the case law remains divided as to whether or not the applicant’s death should deny jurisdiction to order provision for the period straddling the death of the deceased and the death of the applicant.42 The case law favouring the jurisdiction accepts that the applicant’s cause of action survives his or her death, and that the application for provision, and any subsequent order for provision, accrues to his or her estate. For example, in Re Wardle,43 a case where the deceased’s widow had lodged an application for provision, but died prior to it being heard, Zelling J allowed the widow’s daughter, as the sole executrix and beneficiary under her will, to be substituted for the applicant. His Honour ruled as follows on the application:44 The applicant therefore was entitled to have the estate which she represented reimbursed by the amount by which the estate was diminished by the deceased having to maintain or advance herself after the date of the death of her husband and before her own death in so far as that maintenance or advancement ought to have been discharged by the deceased husband if he were alive and so far as it was capable of remedy by an order made under the provisions of this Act during the lifetime of the original applicant.

[page 577] Zelling J followed the decision of Long Innes CJ in Eq in Re Shannon45 and the New Zealand decisions in Hawke v Public Trustee46 and Re Shrimpton (deceased).47 Though queried in Victoria by Sholl J in Coffey v Bennett48 — on the ground, inter alia, that the right to seek provision is a personal one incapable of assignment, whether by a statutory claimant or by operation of law — the position in Victoria now seems aligned with the foregoing.49 Queensland

has also fallen into line.50 17.14 The contrary view appears in the judgment of Powell J in McEvoy v Public Trustee,51 who considered that standing to apply for provision is ‘personal’ in the relevant sense. In so ruling, his Honour adopted a strict construction of the statutory wording, which required that the court be satisfied, at the time of dealing with the application, that the applicant ‘is an eligible person’. This, he opined, seemed ‘to lead inescapably to the view that an order may only be made in favour of a person then living’,52 and was reinforced by the repeated requirement that the court have regard to the circumstances existing at the date of hearing.53 It may be conceded Long Innes CJ in Re Shannon, unlike Powell J in McEvoy, did not engage in a close analysis of the statutory wording in reaching his conclusion. Moreover, the wording of the legislation under which Re Shannon was decided54 differed from the later New South Wales legislation. In particular, the later (and also now the current) New South Wales statute requires the court to pay regard to ‘the circumstances [facts] … at the time the order is made’.55 But this language goes not to jurisdiction but to discretion. And it does not, in any case, reflect anything other than the accepted general law.56 The variation in language is thus not sufficiently substantial as to justify diametrically opposed outcomes, and the construction adopted by Powell J in McEvoy does seem overly strict. Also, the policy considerations informing Sholl J’s view in Coffey v Bennett — the transmission of a right in the context of bankruptcy — are a step removed from those surfacing on the death of the applicant. In any case, it seems incongruent with the policy underscoring family provision legislation, grounded in the fulfilment of a deceased’s moral duty, for that duty to be denied altogether even though, for a time, an applicant had been left without adequate provision. To this end, one judge has queried:57 One rhetorically asks, why should not an estate be compensated, as an example, for expense incurred prior to an indigent applicant’s death, to maintain the applicant at an adequate level, which may have involved borrowings, where a sufficiently well-off testator should have recognized the need and satisfied it. In that sort of case, why should the applicant’s beneficiaries be left to shoulder the burden of the neglect of the testator?

17.15 There are, moreover, compelling grounds to conclude that the cause of action accrues on the death of the deceased,58 arising from the undisputed

view that the estate’s liability for provision is to be determined as at the date of death.59 There does, however, seem a stronger [page 578] case for the McEvoy approach in the Australian Capital Territory, where the legislation states that ‘[t]he court shall only make such an order if satisfied … that as at the date of the order, adequate provision for the proper maintenance, education or advancement in life of the applicant is not available’.60

Application by single person can be regarded as application on behalf of others 17.16 The family provision legislation in the territories, Queensland, Tasmania and Western Australia empowers the court, on an application for provision made by a person, to treat the application as having been made on behalf of all the persons entitled to make an application for provision out of the relevant estate.61 The object is to avoid a multiplicity of proceedings, and instead ensure that the claims of all potential applicants are heard in the one hearing. Though directed to the same object,62 the New South Wales Act adopts a different approach. It entitles the court, in determining an application for a family provision order, to disregard the interests of a person — other than the applicant or a beneficiary of the estate63 — who may have standing to apply but who has made no application if notice is served on that person concerned64 or the court determines that service of notice is unnecessary, unreasonable or impracticable in the circumstances.65 Also aimed at the same object, the South Australian legislation instead empowers the court, upon an application for provision, to join further claimants as parties at any time prior to the final determination of the proceedings, if it is ‘just and expedient’ to do so.66 The latter has been described as conferring a ‘broad judicial discretion’67 in terms not to be read down.68 17.17

The Queensland, Tasmanian and Western Australian provisions

address the issue of limitation. This is done by deeming the time when the relevant person applies for provision to be, for the purpose of the time limits applicable to applications for provision,69 the time when all other persons with standing are treated as having made their application.70 In Tasmania this is dependent [page 579] on the court ordering that the application be treated as one made on behalf of others.71 But if the time of the application lies outside of the limitation period, a person on whose behalf the application is treated to have been made must, like the applicant, apply to the court for the extension of time if he or she wishes to pursue a claim.72 The same applies in South Australia if the joinder occurs after the expiry of the limitation period; those joined must seek an extension of time.73 That the statute in the territories does not address limitation in this context may suggest that, in regarding an application for provision as being made on behalf of others with standing, there is no automatic assumption that this should overcome any limitation issues for those others. Yet it seems odd that, if the court may treat an application in this fashion, the timing issue should fall to be determined separately. This in turn appears to be misaligned with the object of the relevant provision, namely to avoid multiple applications. 17.18 The Victorian legislation does not address these matters. It appears, though, that the Victorian practice is for all applications to be heard together, but as there is no practical requirement that notice be given to potential applicants,74 there is no assurance that a multiplicity of actions will be avoided.

Summary dismissal of application 17.19 A superior court enjoys an inherent jurisdiction to summarily order the termination of proceedings to protect itself and its processes from abuse.75 The court rules in all jurisdictions reiterate this jurisdiction, being commonly phrased by reference to frivolous or vexatious claims or claims that are

otherwise an abuse of process.76 Whatever the source of the jurisdiction, the exercise of a court’s power to summarily terminate proceedings is always attended ‘with caution’,77 and ‘should be exercised with great care and should never be exercised unless it is clear [page 580] that there is no real question to be tried’.78 And there is a ‘real question’ unless the defendant can show that it was so certain that the question must be answered in the defendant’s favour that it would amount to an abuse of process ‘to allow the action to go forward for determination according to the appointed modes of procedure’.79 The reason for care and caution is that, as a matter of due process, a party is not ordinarily denied the opportunity to place his or her case before the court in the ordinary way. 17.20 There is nothing in the family provision legislation, whether express or necessarily implied, that reveals any intention to preclude the availability of summary dismissal.80 Accordingly, a defendant may apply to have the family provision application summarily dismissed. In this event, the plaintiff carries the evidentiary onus, which can be discharged, broadly speaking, by showing a prima facie case that the deceased left the plaintiff without adequate provision for his or her proper maintenance and support.81 The plaintiff need not establish that he or she will inevitably succeed at a final hearing. Once the plaintiff’s evidentiary onus is met, it is for the defendant to establish that the plaintiff cannot succeed at a final hearing.82 17.21 Occasions in which defendants have succeeded in having a family provision application summarily dismissed are unusual.83 More commonly defendants have been unable to discharge their evidentiary burden, in part because courts have highlighted the ‘extreme caution’ that attends applications for summary dismissal in family provision matters. The heavily discretionary nature of the family provision jurisdiction, and the fact that cases often involve complicated intra-family relationships and dealings, explain why courts are reticent to order summary dismissal of a claim,84 and will not do so in the presence of disputed facts.85 In Atthow v McElhone,86 for instance, Applegarth J

described the applicant’s claim as ‘practically hopeless’ but, exercising extreme caution, nonetheless declined to summarily dismiss it. Summary judgment, he added, should not be granted ‘unless it is clear that the application cannot possibly succeed’.87

Time for Making Application Limitation periods 17.22 In all jurisdictions the family provision legislation imposes time limits on applications for provision. In the territories, an application for provision must be made within 12 months of the date of the grant of probate or letters of administration in respect of the relevant estate.88 Applications in New South Wales must be made within 12 months of the date of the death [page 581] of the deceased person.89 The time frame in Queensland is 9 months from the date of death.90 Shorter periods apply elsewhere — 3 months in Tasmania, and 6 months in South Australia, Victoria and Western Australia — albeit commencing from the date of the grant of probate or letters of administration.91 The National Committee for Uniform Succession Laws has favoured a 12-month limitation period,92 running from the date of death.93 The time limitations reflect the public interest in the prompt administration of estates, in that ‘[p]ersons who are beneficiaries under a will are entitled to have the benefits paid to them and to move on with their lives’.94 They reflect the judgment of the respective legislatures as to the time a potential applicant should take to decide whether or not to apply for provision.95 Once that time has elapsed, beneficiaries and others who may be affected should be entitled, it is reasoned, to arrange their affairs and utilise their resources on the basis that there will be no challenge to the will.96

Discretion to extend time

17.23 Notwithstanding the time limits imposed upon applications for provision, the legislation vests in the court discretion to extend time. In the territories and South Australia, it empowers the court to extend the time within which an application may be made, ‘on any conditions that the court thinks fit’ and ‘whether or not the time for making an application has expired’.97 Extension of time in New South Wales is premised ‘on sufficient cause being shown’.98 In Queensland the limitation period is expressed to apply ‘[u]nless the court otherwise directs’.99 The Tasmanian legislation states that the court may extend time ‘for such further period as the court may think necessary’ notwithstanding that the time for applying may have expired.100 In Victoria the court may extend time if it considers it ‘appropriate’ to do so.101 Extension of time in Western Australia rests on the court being ‘satisfied that the justice of the case requires that the applicant be given leave to file out of time’.102 17.24 The person seeking an extension of time carries the onus of convincing the court of grounds, in the exercise of its discretion, that justify time being extended. Because the time limit is imposed for ‘good reason’,103 and is a ‘substantive provision’ laid down by statute rather [page 582] than a ‘mere procedural time limit’ imposed by rules of court,104 discharging that onus is, it has been said, ‘no triviality’ but requires the applicant to make out ‘a substantial case for it being just and proper for the court to exercise its discretion to exten[d] the time’.105 The onus has also been phrased by reference to ‘sufficient grounds for taking the case out of the general rule and depriving those who are protected by it of its benefits’106 and to ‘a sufficiently satisfactory case for allowing a matter to proceed out of time’.107 However expressed, there seems no significant difference in approach between the jurisdictions. The courts’ message is that extensions of time are not simply a matter of request. As extensions interfere with the prompt administration of deceased estates, sufficiently compelling grounds are required. Having said that, there are no restrictions statutorily imposed on the

discretion to extend time; it is unfettered. But as with any ostensibly unfettered discretion vested in a judge, it must be exercised judicially. The latter dictates that the discretion not be exercised arbitrarily or capriciously, but in line with principle — upon relevant materials and in relation to relevant considerations — grounded in doing justice to the parties in each case.108 It also dictates that, although courts can (and should) give an indication of factors going to what is just, these cannot be more than guidelines.109 Judicial discretion, to this end, avoids inflexible rules, or allowing one factor or another to be determinative.110 It also eschews any attempt to exhaustively list the circumstances in which an order will be made.111 Each case must, rather, be dealt with on its own facts. In New South Wales, statute requires the applicant to satisfy the court that ‘sufficient cause’ exists to extend time.112 This has been interpreted as a mandatory (threshold) requirement that an applicant must fulfil, which targets the applicant’s explanation for the delay.113 It is not, however, determinative of the application. The court retains a discretion, even if sufficient cause is shown, whether to allow an extension.114 As factors that may inform this discretion115 [page 583] include those applied by courts elsewhere as relevant to the exercise of the discretion, the New South Wales position is unlikely, in practical terms, to differ from its counterparts.

Factors relevant to the issue of extending time 17.25 The main factors identified by the courts as potentially relevant to whether or not to extend time include the following:116 • the length of the delay, beyond the expiry of the limitation period, before which application to extend time is made; • whether or not there is a reasonable explanation for that delay; • whether or not the refusal to extend time would leave the applicant

• • • • • •

without redress against anyone; whether there have been ongoing negotiations with the defendant(s) that were commenced within the limitation period but continued beyond the expiry of that period; the strength of the applicant’s case for provision; the extent of any prejudice likely to be suffered by the defendant(s) should an extension of time be granted; the nature of the applicant; whether there has been any unconscionable conduct by either side; and the extent of any distribution of the estate.

Three points must be emphasised regarding this list. First, it should not be seen as exhaustive of matters that may potentially influence the court’s discretion to extend time. Second, the factors are listed in no order of significance or importance, as no one factor is necessarily weightier than any other. Third, no one factor is likely to be determinative. Instead the court’s decision is likely to be influenced by a combination of more than one of the factors in question.117 Each of these factors is discussed in greater detail below.

Length of the delay 17.26 In Re Salmon (deceased)118 Megarry VC remarked that ‘it must be material to consider how promptly and in what circumstances the applicant has sought the permission of the court after the time limit has expired’. But his Lordship, in remarks reiterated in the case law, added that this is not ‘a crude matter of simply looking at the length of time that has been allowed to elapse’. Instead the entire circumstances must be looked at, including the reasons for the delay and the extent to which others may be prejudiced by an extension of time. As the legislation does not qualify the court’s discretion to extend time, it would fetter that discretion to set a limit to the length of the extension that a court may grant in appropriate circumstances. The cases, to this end, reveal extensions of time involving delays exceeding 10 years.119 It follows that a [page 584]

very long delay per se does not necessarily mean the application should be refused; rather, ‘[e]ach case must be treated on its merits and the undoubted discretion be exercised based upon the facts in each particular case’.120 But it has been remarked that cases involving such lengthy delays are ‘no doubt exceptional’.121 A reason for this is that the longer the delay, the more likely an extension of time would cause prejudice to the intended beneficiaries of the testator’s will (or those taking on an intestacy), and the more likely the estate will have been distributed. As noted elsewhere, other than in New South Wales and Western Australia, the latter precludes recovery of the property distributed for the purposes of family provision,122 and therefore operates as a de facto bar to extending time. And there may be reason to query the availability and reliability of evidence presented many years after the (alleged) events.123 The flipside is that a very short delay to which no prejudice attaches presents a compelling case for extending time.124 17.27 Ultimately, although each case must rest on its own peculiar facts, arguably the consideration given the most weight against a lengthy delay is the nature and extent of any prejudice that extending time may generate. A Victorian judge has observed that ‘[w]hat is important in considering the period of delay is the question of prejudice if the indulgence is granted’, so much so that ‘absent prejudice, a period of delay and an inadequate explanation should not stand in the way of a just result’.125 That the testator’s will has interposed a life estate can explain why a very long delay in applying for provision need not prejudice the beneficiaries intended to take upon the determination of the life estate.126 But where the beneficiaries are already receiving periodic distributions from the deceased’s estate, there is clear prejudice to them if time is extended and an award of provision is made that would cause those distributions to be reduced or terminated. In this event, a very long delay is likely to prove compelling grounds to deny an extension of time.127

Explanation for delay 17.28 As the discretion to extend time is not confined by rigid rules, the presence or absence of an explanation for the delay is not by itself determinative of an application to extend time.128 It remains relevant, in

particular where there is a reasonable explanation for the delay. If there are good reasons for the delay and there is little or no material prejudice to others in extending [page 585] time, this may incline the court to accede to the application. Conversely, the absence of a satisfactory explanation for a (longer) delay may, especially if tied to evidence of prejudice and an ostensibly weak claim, incline the court the other way.129 17.29 The most common explanation proffered for failing to apply for provision within time is that the applicant was ignorant of the entitlement to lodge a claim for provision. Not uncommonly this ignorance is not one that subsists for years (or decades) but is measured in shorter time frames. It is in this context that one should view the remarks that ‘[i]gnorance of rights has long been recognised as conduct which will excuse a failure to commence proceedings within the time limited’130 and that ‘an applicant must meet a relatively low threshold in order to satisfy the requirement that he or she have a satisfactory explanation for the delay’.131 If an applicant, upon becoming aware of an entitlement to claim, promptly instructs lawyers for this purpose, a court is likely, in the absence of countervailing factors, to grant an extension.132 An applicant’s intellect, experience or sophistication can impact on his or her knowledge and understanding of legal rights, and so may substantiate an explanation for ignorance of those rights. For example, in Taylor v Farrugia133 the applicant assumed that he would have an entitlement under his mother’s will under Maltese law but, being unsophisticated and having little education, was unaware of his right to apply for provision in Australia, let alone of any time limit that related to it. Brereton J found that, in this context, ‘[h]is lack of knowledge of his rights and of the time limit’, coupled with the circumstance that ‘it became apparent only after some time had passed that it would be very difficult to procure payment of his share of the [mother’s estate]’, provided sufficient cause for not having applied within time.134 His delay, in any case,

was a matter of only months. 17.30 At the same time, though, ignorance of a right to apply for provision, even where generated in large part by the applicant’s lack of sophistication, provides no compelling ground to extend time if this would prejudice the beneficiaries of the estate in more than a minor way. In such a case, the relative ‘equities’ land on the side of the beneficiaries, who would otherwise be prejudiced by the applicant’s failure to meet a substantive statutory requirement.135 [page 586] Nor does it substantiate grounds to extend time where the applicant had the capacity and opportunity to rectify its effect.136 Knowledge of an applicable time limit is not necessarily fatal to an application to extend time. In a particular case, there may be reason for an eligible person, with knowledge of the time limit, not to commence within time.137 This may include where the applicant lacks the funds necessary to bring proceedings within time138 or suffers an illness that serves to prevent or at least explain the delay.139 Or it may involve a lack of knowledge of, or a misunderstanding or misapprehension as to, material facts that inform an assessment of the need to bring proceedings or their prospects of success.140 And if the defendant(s) induce the applicant to believe that an application to extend time will not be opposed, the consequent delay is unlikely to prove fatal, whether by reason of the explanation for the delay or via an estoppel raised against the defendant(s).141 17.31 In other instances an application may be tarried because adequate information regarding the estate remains unavailable to the applicant. In Young v Kestel142 the evidence revealed that the applicant and her advisors had not, at any time before commencing the proceedings, received adequate details of the actual entitlement of the deceased, or the entitlements of other residuary beneficiaries under the will. In these circumstances, remarked E M Heenan J, it was not difficult to understand why the applicant and her lawyers were seeking more information, and ‘were reluctant to commence litigation which

may produce far reaching consequences for the relationships within the family’.143 Having not been furnished with the information necessary to make a responsible decision about whether or not to institute family provision proceedings, notwithstanding concerted and repeated efforts to this end, the delay was excusable and indeed inevitable. This conclusion was bolstered by the fact that the defendants had long been on notice that proceedings may ensue, and so were hardly prejudiced by the extension.144 17.32 There is a difference, however, between not proceeding within time for a justifiable reason, and making an informed choice, after due consideration, not to apply for provision. In this latter context, the courts have, on the whole, not been welcoming to applications out of time driven by a change of mind. The law reasons that a person who knew of his or her rights in the past and chose not to exercise them cannot return years later and demand an extension [page 587] of time because it is now thought desirable to exercise those rights.145 Brereton J in Taylor v Farrugia explained the point this way:146 A mere change of mind on the part of an eligible person, who has decided not to make a claim — even if that change of mind is triggered by the success of a claim of another eligible person, or by another eligible person bringing a claim — is ordinarily not sufficient cause for granting an extension of time.

A clear case is found in Lazenby v McDermott,147 where both applicants held the belief for some 30 years that they should have received a greater share of the estate. Fourteen years before commencing proceedings for provision, they sought the advice of a lawyer, but took the matter no further at the time. By then, at the latest, Underwood J held, the applicants were aware of their right to challenge the testamentary provisions. But having consciously chosen not to do so, no satisfactory explanation for the very long delay existed.148 The cases also reveal instances of refusals to extend time where the applications were driven by a change, years later, in the financial position of the applicant, or that of the estate.149 In these instances it is difficult to conclude, in any event, that provision for the applicant was, at the date of the deceased’s death,

inadequate for his or her proper maintenance or support. 17.33 But if the original decision not to seek provision was not the product of a genuinely free will, some later change of mind may not necessarily preclude a court extending time, at least if prejudice is absent.150 The same may be said where that decision was made under a misunderstanding or misapprehension. In what Macready AsJ conceded to be an unusual case, an extension of time was granted to the applicant in Burton v Moss,151 who had 11 years earlier chosen not to seek provision from his same-sex partner’s estate due to a belief that his HIV status would shortly lead to his death. With advancements in HIV treatment, however, it subsequently appeared that the applicant would in all likelihood lead a full life. The deceased’s will granted the applicant a life estate in the deceased’s house and thereafter named a church as its beneficiary. The church, as a result, suffered no prejudice by time being extended, as its interest had not yet fallen into possession. An extension of time was therefore granted. [page 588]

Whether applicant remains without redress (including against defaulting lawyer) 17.34 A reason why a person may unduly delay seeking provision is that, though having consulted a lawyer, he or she has not, due to the lawyer’s oversight, been made aware of the applicable limitation period. In Charles v Charles152 Young J remarked that, if an application comes to a lawyer before the limitation period expires and the lawyer does not lodge an application in time, ‘that in itself does not provide sufficient cause for the court extending the time’, adding that ‘there must be something more than mere incompetence or inattention by a [lawyer] before time can be extended’. But this does not mean that an application for extension must be refused if the limitation period expired through the fault of the lawyer. There is sense in this. Lawyers can be expected, after all, to be familiar with family provision law and applicable limitation periods; a lay client, on the other hand, may enjoy no such familiarity. It stands to reason, therefore, that a lay client unaware of a

potential claim for provision, or the time limits to which it is subject, can certainly give a viable explanation for any delay in making application. 17.35 The main reason why some judges have given less weight to this explanation appears to be that the applicant can, if shut out from seeking provision due to the effluxion of time, bring proceedings in negligence against the lawyer whose oversight caused the claim to lapse. In a leading English case, Re Salmon (deceased) ,153 Megarry VC identified as a relevant consideration ‘whether a refusal to extend the time would leave the claimant without redress against anybody’. That an applicant may have redress against the lawyer in tort may, consequently, lead a court to refuse to extend time, thereby maintaining the integrity of the substantive time provision, while at the same time not depriving the applicant of a means of relief. It should not be assumed, however, that this represents the usual course. Australian case law makes clear that Re Salmon is not authority for the proposition that no extension of time will be given if an applicant would have a cause of action in negligence against his or her lawyer.154 In Re Salmon there were a number of other relevant factors, including that the estate had been largely distributed,155 that led to a refusal to extend time. It is not certain, in any event, that the applicant will succeed in recovering from the lawyer as damages the quantum of provision that may have been awarded had the claim been commenced within time.156 And there seems an inherent unfairness in leaving an applicant to the uncertainty of a claim in tort against lawyers in circumstances where the applicant has sought legal advice as to his or her legal position in due time. This is the more so because pursuing a tortious claim is likely to take far longer and be far more expensive than pursuing a family provision claim. It follows that, in the absence of prejudice from extending time, any delay explainable by a lawyer’s oversight or negligence may well be overcome,157 especially if the merits appear strong and there is no compounding lack of proactivity by the applicant.158 [page 589]

Where negotiations remain on foot

17.36 In determining whether or not to extend time, courts give weight to an explanation for delay stemming from ongoing bona fide negotiations between the applicant and others with an interest in the deceased’s estate. Megarry VC in Re Salmon (deceased) made the point as follows:159 [I]t is obviously material whether or not negotiations have been commenced within the time limit; for if they have, and time has run out while they are proceeding, this is likely to encourage the court to extend the time. Negotiations commenced after the time limit might also aid the applicant, at any rate if the defendants have not taken the point that time has expired.

Taking negotiations into account for this purpose, in addition to explaining the (usually not lengthy) delay, serves to foster the policy of the law that encourages parties to settle rather than litigate. Were negotiations to be irrelevant in this context, it may encourage applicants to commence proceedings — even if there is a real prospect of settlement — in the fear that, unless they do so, time will not be extended. The very existence of ongoing negotiations regarding the estate will ordinarily preclude its distribution (or at least distribution of a part of it) and thereby also reduce the prospect for prejudice to the intended beneficiaries. In this event, the case law reveals a welcoming attitude to extending time.160

Strength of the applicant’s case 17.37 Although history reveals some judges who have disclaimed the relevance of the strength of the applicant’s case to an application to extend time,161 this attitude has passed. The modern cases indicate that a finding that a case appears strong on the merits is a factor in favour of extending time. As the curial discretion is exercised by reference to justice as the paramount consideration,162 ‘to deny a person an extension of time in the face of a strong claim could amount to an injustice’,163 it has been said. But to extend time for a claim the merits of [page 590] which are hopeless or bound to fail would be ‘obviously futile’,164 even if the delay is only brief and not punctuated by prejudice.165 As explained by Keane JA in Hills v Chalk:166

It is difficult to see that there is any good reason why a claim for provision out of an estate which is clearly unlikely to succeed should attract the grant of an extension of time where the delay has been, as it is here, very long indeed. Most litigation is economically wasteful and involves personal stress. Litigation over the estate of a deceased loved one is usually especially stressful, and the economic waste is a matter of special concern. There will usually be little mercy, and there will often be considerable harm, in granting an extension to enable the making of a claim which should have been made, if at all, years before. When that claim will probably fail, there is no ‘substantial case for’ granting an extension of time. To grant an extension of time in such a case is likely to serve only to waste resources and to cause, or increase, personal bitterness on all sides of the litigation.

This suggests that the probability that an application for provision out of the estate will ultimately succeed is a necessary, though not sufficient, condition of the grant of an extension of time.167 This, of course, assumes that the facts material to the ultimate merits of the substantive application are clear or undisputed; if they are not, reaching a clear view as to the probability of ultimate success may well prove impossible. Other factors must influence the court’s judgment in such cases.168 Accordingly, assuming that the facts are amenable to an assessment of the merits, the strength of the case on the merits can support the claim for an extension if the case is strong, or can undermine it if the case is weak or hopeless. Between these poles, the merits arguably present more as a neutral factor in the court’s quest to attain a just outcome than anything else. Judicial inquiry into whether an applicant has ‘an arguable case’,169 a ‘prima facie case’170 or ‘a case fit to [page 591] go to trial’171 is thus conceived more aptly as a means to exclude hopeless cases than one that always impacts on the exercise of the discretion in favour of extending time. 17.38 Ordinarily, when courts inquire into the merits as a threshold inquiry, they warn that at this preliminary stage it is not possible to make an informed assessment of the merits. There are accordingly remarks of this kind in the context of extending time in family provision claims,172 but to the extent that an application for extension of time is (as is commonly the case)

dealt with at the time of the application for substantive relief, the consequent convergence renders this admonition less powerful here.

Presence or absence of prejudice 17.39 Although the presence or absence of any one factor is said not to be determinative of a claim to extend time — the unfettered nature of the court’s discretion would otherwise be impugned — it has been observed that ‘[p]rejudice is a weighty factor in a court’s consideration, if beneficiaries are likely to be prejudiced by the extension of time’.173 In particular, while the absence of prejudice may incline the court, together with other matters, towards granting an extension of time,174 the presence of prejudice, especially if it is substantial, will almost invariably preclude an order extending time. Relevant prejudice is that caused by the delay itself; it does not encompass any disappointment that might be anticipated consequent upon readjustment of the interests being transferred under the will in order to make provision for the applicant.175 Prejudice may ensue because, as a result of the delay, distribution of the estate has been made to some beneficiaries but not to others. As property legitimately distributed cannot, other than in New South Wales and Western Australia, be recovered for the purposes of funding a successful applicant for family provision,176 beneficiaries yet to receive their complete distribution may be prejudiced should an extension of time be granted and an award of provision made. Those beneficiaries would carry a burden that would otherwise have been spread across all beneficiaries had the application been made in time.177 It is the inherent unfairness in this outcome that explains the courts’ reticence to countenance it. At the same time, it may be relevant whether any prejudice can be remediated by the nature of the award of further provision. If, say, financial prejudice to the estate has been occasioned [page 592] by reason of the delay, but can be remedied by way of adjustment of the order to be made by way of further provision, that prejudice is not necessarily a

barrier to an extension of time.178

Nature of the applicant 17.40 There is no qualification to the limitation period vis-à-vis applicants whom the law regards as under a legal disability, namely infants and persons of unsound mind. This does not, however, dictate that the status of an applicant as a person under a legal disability is irrelevant to the question of extending time. That an infant or person of unsound mind is reliant upon another person, of full capacity, to apply on his or her own behalf, it stands to reason that the failure by that person to apply within time can go to providing an explanation for the delay. The relevant law was stated as follows by Cohen J in Dare v Furness:179 The mere status of a plaintiff as an infant is obviously not itself a sufficient cause for an application not being made within the prescribed period. In my opinion it is a factor which must be taken into account when the court is considering the sufficiency of the reason for delay in the bringing of proceedings. In particular, where a parent or guardian of the child has caused or contributed to the delay, but there are some reasons to explain it, then the fact that the child was at all times dependent upon the acts of that parent or guardian will be a fact to add to the reasons in considering whether there has been a sufficient cause shown for the delay.

In Dare time was extended for an applicant aged 7 years when the limitation period expired. The evidence revealed that, arising out of the death of the applicant’s father, the plaintiff’s mother promptly sought advice and instructed a lawyer to seek provision on the applicant’s behalf. In part because the lawyer was seeking further information about the estate before taking action, the limitation period expired. ‘Taking into account the age of the plaintiff and the fact that she was completely reliant upon her mother in this regard’, Cohen J came to the conclusion that there was sufficient explanation for the delay in making the claim.180 17.41 There is some analogy here with the case of applicants whose lawyers fail to commence proceedings within time,181 but the case for infants and insane persons is stronger, as they are legally incapable of pursuing (as opposed to perhaps lacking the knowledge to pursue) the matter. Also, an applicant delayed by a lawyer’s oversight has prospects, should an extension of time be denied, of recovering in tort from the lawyer, when a person under a legal disability may have no equivalent claim against a parent or guardian.

Yet as legal disability in an application is only one factor potentially relevant to the court’s discretion, it is, as Cohen J in Dare v Furness noted, not by itself any sufficient cause to extend time. Other factors, including any prejudice to the beneficiaries of the estate, may incline the court against extending time on behalf of a person under a disability. In Zirkler v McKinnon,182 for instance, even though the tutor was the only person who could exercise the applicants’ rights, which could be lost notwithstanding their infancy, her ‘informed and well considered decision’, based on legal advice, not to proceed with a claim for provision led Macready M to refuse an extension of time. The tutor’s change of heart had been driven by later acquired knowledge that another applicant, in proceedings commenced within time, forced a settlement out of the defendant. His Honour remarked that the facts ‘raise[d] the spectre of cases where one member of a family brings a claim while others hold off waiting to see if such a claim would be successful’, which were unlikely to succeed.183 [page 593]

Unconscionable conduct 17.42 New South Wales case law explicitly identifies unconscionable conduct as a factor relevant to determining whether or not ‘sufficient cause’ to extend time has been shown.184 As the discretion to extend time is based on doing justice between the parties, the conduct of the parties is hardly irrelevant to the question of what is, in the circumstances, just. The authorities focus on unconscionable conduct by the applicant, and thus mark unconscionable conduct as a factor going against the extension of time. And rather than a broad inquiry into unconscionability, the cases suggest a narrower focus, targeting an applicant’s words or actions as inducing in the defendant(s) a belief that no family provision claim will ensue. Hence the remarks that ‘the concept of unconscionable conduct is to be directed towards a deliberate holding off designed to lull beneficiaries into a false sense of security’185 and as ‘essentially concerned with deliberate decisions not to make an application, upon which the executor or a beneficiary has acted to their detriment’.186 The latter has been identified as relevant to the court’s discretion in other

jurisdictions, independent of any mention of unconscionable conduct.187 The New South Wales position in this regard, therefore, differs in no way from its counterparts elsewhere. But it does seem restrictive to limit the unconscionable conduct inquiry to inducement by an applicant. There may be other ways in which an applicant may behave unconscionably. It is also restrictive to focus only on the conduct of an applicant. Unconscionable conduct by a defendant is just as likely to impact on the court’s decision as unconscionable conduct by an applicant. For instance, that a defendant induced a belief in the applicant that no opposition to an extension of time would be given188 or ostensibly agreed to a (limited) time extension,189 or deliberately withheld or obscured information regarding the estate, may favour an extension of time.

Distribution of the estate 17.43 Other than in New South Wales and Western Australia, the distribution of the deceased’s estate impacts on the availability of an extension of time and the property that may be redirected as part of a family provision order. In the territories, South Australia, Tasmania and Victoria an application to extend time must be made before the estate has been lawfully and fully distributed.190 Once distribution occurs, no discretion remains in the court to extend time191 — ‘the rights of the beneficiaries have become conclusive and indefeasible’192 — and in South Australia, Tasmania and Victoria it makes no difference that the distribution preceded [page 594] the expiry of the limitation period.193 In the territories, however, provision is made for the court to reverse a distribution made within the limitation period, or outside it but with notice of an application for provision or to extend time.194 This explains why the South Australian, Tasmanian and Victorian Acts, distinct from their territory counterparts, add that a distribution of the estate preceding the application to extend time cannot be disturbed by reason of that application.195 It is reasoned, to this end, that ‘[f]or most people, there is a real difference between the bird in the hand and the bird in the bush’ and that ‘the beneficiaries are more likely to have changed their position in reliance

on the benefaction if they have actually received it than if it lies merely in prospect’.196 17.44 As the New South Wales and Western Australian statutes envisage that the distribution of (part of) an estate does not necessarily preclude a family provision order,197 an application to extend time in those jurisdictions is not constrained by the distribution of (part of) the estate.

Duties of Personal Representatives in Family Provision Applications Primary duty to uphold the will 17.45 In proceedings under family provision legislation, as in other proceedings, the primary duty of the executor is to uphold the will. Judicial observations that executors must in these circumstances place before the court all evidence that might bear on the issues raised by the applicant’s evidence or that might arise at the hearing198 should not be viewed as attracting an obligation to lead evidence in the applicant’s favour. The executor retains an adversary role, which requires him or her to present evidence to uphold the will and support the interests of its beneficiaries, not to support the claims of an applicant, which will hardly align with the terms of the will and the entitlements it vests in the beneficiaries.199 [page 595] 17.46 The adversarial nature of family provision proceedings does not, however, licence an executor to determine the fate of an application by vigorously contesting it, irrespective of the sense or merits in doing so. As the family provision legislation, in effect, imposes on testators a duty to make ‘adequate’ and ‘proper’ provision for eligible persons, executors cannot simply ignore this duty. It follows that, once an application is made or notified, the executor must objectively assess the evidence, impartially assess the merits of that application and, if necessary, compromise the suit.200 Like trustees,201

executors must act properly and reasonably in the conduct of litigation involving the relevant estate, and can be denied an indemnity out of the estate for costs that were not properly or reasonably incurred.202 Hence the judicial reference to the need for executors, far from defending the proceedings as if they were a murder trial, to ‘exercise a due sense of proportionality in the conduct of any such defence and seek to compromise a claim, if at all possible, in a way that would save both the [applicant] and the other beneficiaries’ costs’.203 Indeed, to the extent that the estate is depleted in the incurrence of costs — in circumstances where costs are likely to be ordered out of the estate204 — what is left for the beneficiaries is correspondingly reduced. 17.47 Executors who, legitimately, are uncertain concerning the appropriateness of defending the proceedings for provision are well advised to seek the advice and direction of the court.205 For instance, in Application of Scali,206 when presented with a proposed consent order well exceeding any likely provision award, Brereton J advised the executors that they would be justified in continuing to defend proceedings, notwithstanding the proposed consent order. But in other circumstances, say where the estate is modest and likely to be depleted significantly by litigation, the court may discourage litigation, and may well direct the executor to preserve the estate, agree to abide the order of the court, and let the parties litigate with their own funds if so minded, with the usual costs orders protecting the successful party.207

Duty regarding distribution when notice of a family provision application 17.48 The case law supports the notion that a prudent executor (or administrator) should, as a general rule, refrain from distributing any part of an estate, but instead preserve the estate, during the period within which an application for provision may be brought as of right208 or [page 596] during the period of any extension of time granted by the court.209 An

executor who distributes, usually under pressure from one or more beneficiaries, before the limitation period expires may be personally liable to a successful applicant for provision who suffers loss as a result. In other words, an executor who makes the distribution in these circumstances is ‘at risk’. The classic judicial statement in this context comes from Vaisey J in Re Simson (deceased), who uttered the following admonition:210 I wish it to be made clear that in these cases it is the paramount duty of the executor to avoid embarrassing the court and to think once, twice and several times before allowing any part at all of the estate to be paid out to any beneficiary — whether a specific legatee or a residuary legatee or whoever it may be matters not — while any application under this Act is either pending or impending … I wish it to be distinctly understood … that where an application under the [Act] is either pending or impending … if it is a case in which there is any risk of such a thing happening, the executor distributes the estate at his risk. If beneficiaries come and pester him and say that they want their legacies and pressure is put on other beneficiaries to allow these anticipatory payments to be made, in my judgment it is the duty of the executor to resist any such pressure. I think it must be said that where the court has to deal with a matter under this Act the estate should be there intact. Of course, duties and debts, and that sort of thing, can be paid — there is no question about that — but no distribution to beneficiaries should be made while there is any possibility or expectation that an application under this Act will be made.

17.49 Before the expiry of the limitation period, and even with notice of a pending claim for provision, there is no legal prohibition on the executor making distribution once probate is granted.211 The latter, after all, activates the executor’s authority to deal with the estate in accordance with the testator’s will. As Vaisey J noted above, there is no need for circumspection in payment of duties and debts of the estate. There is also some judicial suggestion that an executor may distribute if, in these circumstances, the distribution is trifling compared to the size of the residuary estate, a beneficiary with a strong moral claim to provision is in urgent need, all those eligible to apply for provision have effectively disclaimed their right to do so, or it is evident that no one is eligible to apply for provision from the estate.212 Western Australian judges have, however, shown greater circumspection in this regard, espousing a rule of practice that an executor, once notified of a family provision claim, should not distribute any part of the estate, even in large estates.213 [page 597] In any case, the foregoing applies subject to any court order, with which the

executor must abide. There is a jurisdiction in the court, upon a request by an applicant for provision, to grant an interlocutory injunction restraining the executor from disposing of any part of the property forming the deceased’s estate, and from distributing any part thereof pending the determination of the application for provision.214

Protection of personal representatives arising out of distributions 17.50 The foregoing, so far as it addresses the potential liability of an executor, must be read subject to the terms of the family provision legislation (other than in Tasmania), which extends protection to executors (sometimes more extensively termed ‘administrators’) who make distributions that may otherwise have been the subject of an order for provision. 17.51 In the territories, the legislation states that no action lies against the administrator of a deceased estate out of having distributed the whole or any part of the estate if the distribution was made:215 • for the purpose of providing for the proper maintenance, education or advancement in life of a person who was totally or partially dependent on the deceased immediately before the latter’s death; • after 12 months of the date when administration was granted and before the administrator had notice of the application for the order, and (in the Australian Capital Territory) the property so distributed has vested in possession of any person; or • before the administrator had notice of the application for provision (or to extend the time), if prescribed notices216 have been given and the time specified within them has expired. [page 598] 17.52 The New South Wales legislation entitles the administrator217 of a deceased estate to distribute the property in the estate if the following are satisfied:218

• the property is distributed at least 6 months after the deceased’s death; • the administrator has given notice219 in the approved form220 that he or she intends to distribute the property in the estate once the specified time has expired; • the time specified in the notice is not less than 30 days after the notice is given; • the time specified in the notice has expired; and • at the time of distribution, the administrator does not have notice of any (intended) application for a family provision order affecting the estate. An administrator comes under no liability to an applicant for provision in respect of a distribution that was properly made in accordance with the above,221 or if that distribution is made on or after 12 months from the deceased’s death, at a time preceding the receipt of written notice that an application has been commenced in the court or being served with a copy of the application.222 The latter aligns with the limitation period applicable to eligible applicants to seek provision.223 There is also protection for administrators who make a distribution for the purpose of providing things ‘immediately necessary for the maintenance or education’ of an eligible person who was wholly or substantially dependent on the deceased immediately before the latter’s death, which protection applies whether or not the administrator had notice at the time of the distribution of any (intended) application for a family provision order affecting property in the estate.224 17.53 In Queensland no action lies against the administrator225 by reason of a distribution properly made at least 6 months after the deceased’s death without notice of any (intended) application for provision or, if notice has been received, at least 9 months after the deceased’s death (aligning with the applicable limitation period),226 unless the administrator receives written notice227 that the application has been commenced in the court or is served with a copy of the application.228 There is further protection, as in the territories and New South Wales, for distributions properly made for the purpose of providing for the maintenance or support of the spouse or any child of the deceased totally or partially dependent on the deceased immediately before the latter’s death, whether or not with notice of any (intended) application for provision.229

The statutory wording leaves scope for liability for distributions not ‘properly made’ (providing a limited de facto avenue to overcome the absence of notional estate anti-avoidance [page 599] provisions in Queensland, as exist in New South Wales).230 A distribution may not be ‘properly made’, say, if it is inconsistent with an invitation by the administrator to resolve the claim by negotiation.231 17.54 Victoria and Western Australia make equivalent provision in terms of the latter scenario.232 And the general protection provision is directed to where the administrator233 has properly distributed any part of the estate not before the expiration of 6 months after the grant of probate of the will or of letters of administration, if made without notice of any (intended) application for provision.234 The Western Australian statute, reflecting what would otherwise be the case elsewhere, denies any obligation in an administrator to inquire as to the existence of a person who could make a family provision claim.235 17.55 A simpler regime exists in South Australia, which protects an administrator who has lawfully distributed any part of the estate except in relation to claims of which he or she had notice at the time of the distribution.236 This aligns with the general law discussed above,237 in the absence of statutory provision to the contrary. But ‘notice’ for this purpose requires notice in writing signed by the claimant or his or her lawyer, which lapses unless, within 3 months of being first received, a copy of an application for provision is served on the administrator.238 The Victorian and Western Australian statutes conceptualise notice in similar fashion.239 17.56 In New South Wales, Queensland, Victoria and Western Australia statute denies to a person who otherwise would be eligible to apply for provision any claim against the administrator of the relevant estate arising out of a properly made distribution of the estate made after that person (being of full legal capacity) has notified the administrator in writing that the person either consents to the distribution or does not intend to make any application

for provision that would affect the proposed distribution.240 This provision, it has been said, aims to facilitate the early distribution of estates.241 The law is likely to be equivalent in other jurisdictions, albeit through the vehicle of an estoppel.

The Two-stage Substantive Inquiry The first (‘jurisdictional’) stage 17.57 It is well established that an application for family provision calls for a two-stage inquiry.242 The first stage — the ‘jurisdictional question’ — calls for a determination of whether [page 600] the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life, and is discussed in greater detail below.243 The second stage, arising only if the jurisdictional question is determined in favour of the applicant, requires the court to decide, in its discretion, what provision ought to be made for the applicant out of the deceased’s estate. This involves an exercise of judicial discretion in the accepted sense. The need for a court to address the first stage presupposes that the applicant has standing to seek provision, which rests on the applicant coming within one of the classes of persons identified by the legislation.244 In a sense, therefore, what is involved is a three-stage inquiry, a ‘preliminary’ stage being directed to the standing question. In Victoria, where the standing threshold was formerly directed to ‘a person for whom the deceased had responsibility to make provision’,245 courts explicitly recognised the three stages involved.246

The second (‘discretionary’) stage 17.58

The second ‘discretionary’ stage recognises that overcoming the

‘jurisdictional’ stage does not automatically entitle an applicant to a set amount of provision. That amount, and indeed whether any provision is in fact ordered, depends on a variety of factors, commonly targeting, inter alia, the size of the deceased’s estate, the competing claims on the estate, and the applicant’s character and conduct. In some jurisdictions the relevant factors are listed by statute,247 but these in any case largely reflect factors recognised at general law. This is not to say that factors relevant to the second stage are always distinct from the relevant inquiry at the first stage. As explained by Mason CJ, Deane and McHugh JJ in Singer v Berghouse:248 The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.

[page 601] The language of the relevant sections — empowering the court to order provision as it ‘thinks fit’,249 ‘in its discretion’250 or as the court ‘thinks ought to be made’251 — substantiates the discretionary stage. Though the legislation in some jurisdictions adds that the court may attach to its order such conditions (or restrictions or limitations) as it thinks fit,252 this is surplusage, as a power of this kind necessarily comes within the broad discretion vested in the court elsewhere.253 The Northern Territory and Tasmanian Acts explicitly require the court, in exercising its discretion, to pay regard to all the circumstances of the case.254 This too is surplusage, as the exercise of a court’s general discretion is informed by the relevant circumstances of each case. The Australian Capital Territory, New South Wales and Victorian Acts list factors or criteria to which the court must (in New South Wales and now Victoria, may) have regard in exercising its discretion.255 But this does not restrict the discretion, given that the lists culminate with ‘any other matter the court

considers relevant’.256

The Jurisdictional Threshold Commonality in statutory terminology 17.59 The legislation reveals substantial commonality in the jurisdictional threshold inquiry. The threshold in the territories, New South Wales and South Australia targets persons for whom the deceased’s will and/or the operation of the law of intestacy has not made ‘adequate provision for the proper maintenance, education or advancement in life’.257 In Queensland, Tasmania and Victoria the statute refers to an omission to make ‘adequate provision’ for the applicant’s ‘proper maintenance and support’.258 Western Australia also adopts the ‘adequate provision’ threshold but aims it at the ‘proper maintenance, support, education or advancement in life’ of an applicant.259 17.60 The parameters of the court’s jurisdiction rest, accordingly, chiefly on the meaning of the terms ‘adequate’, ‘provision’, ‘proper’, ‘maintenance’, ‘education’, ‘advancement’ and ‘support’. All jurisdictions use the first four of these words within their statutory formulation.260 And as the term ‘support’ seems, as noted below,261 sufficiently broad to encompass ‘education or advancement’, the remaining detail differences do not, at least so far as the jurisdictional threshold is concerned, amount to differences in substance. There is a difference in focus, though, between the words ‘adequate’ and ‘proper’ and the remaining words. The reference to ‘adequate’ and ‘proper’ represents a predominantly [page 602] quantitative threshold. But in referring to ‘provision’, ‘maintenance’, ‘education’, ‘advancement’ and ‘support’, the legislation invites an inquiry of a more qualitative nature.262 The quantitative and qualitative inquiries therefore

merit separate treatment.263 Also, although absent from the statutory language, case authority has consistently affirmed that the court’s inquiry is made from the perspective of how a ‘wise and just’ testator would have provided in the circumstances, adjudged by reference to current ‘accepted community standards’.264 17.61 But preceding any elaboration of these matters must be the role and impact of what many have perceived, from the earliest times, as underscoring the statutory jurisdiction to order provision, namely the concepts of ‘moral duty’ or ‘moral responsibility’ (on the testator) and ‘moral claim’ (by an applicant).

Inquiry into ‘moral duty’, ‘moral responsibility’ or ‘moral claim’ 17.62 In the context of family provision, the concept of a ‘moral duty’ (or the like) to make provision has resonated through the case law. Its curial genesis stems out of judgments by Edwards J shortly after the New Zealand Parliament enacted the seminal legislation in the field.265 Around 90 years later Gleeson CJ reiterated these views, explaining the reason for them in the following terms:266 From the earliest days, courts in expounding the legislative purpose have invoked moral values. The reason is not difficult to see. The mischief to which the original legislation was directed was the possibility of unjust exercise of testamentary capacity resulting in inadequate provision for a family member, typically a widow. By hypothesis, the testator had the legal right to dispose of his estate as he thought fit, and the person or persons left without adequate provision had no legal right to inherit beyond the extent provided for in the will. The justification for conferring upon a court a discretionary power to intervene, and to make an order modifying the legal effect of the will, was explained in terms of familial obligation, not unnaturally or inappropriately described as moral.

In other words, notwithstanding the absence of the term ‘moral’ in the legislation itself, because it purports to interfere with a testator’s basic legal right to freedom of testation,267 it is apt to speak of the legislation in terms of giving effect to a testator’s moral obligation. Language of this kind sits comfortably with case law preceding the advent of family provision legislation, which distinguished a testator’s legal duties from his or her moral duties in the exercise of testamentary freedom.268

[page 603] Gleeson CJ in Vigolo added that, in explaining the purpose of family provision legislation, and in making the value judgments it requires, ‘courts have found considerations of moral claims and moral duty to be valuable currency’. This approach his Honour endorsed, opining that these considerations have ‘a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text’; though not meant to be a substitute for the text, ‘[t]hey connect the general but value-laden language of the statute to the community standards which give it practical meaning’.269 Callinan and Heydon JJ in Vigolo, perhaps not as enthusiastic about the ‘moral duty’ and ‘moral claim’ concepts as the Chief Justice, still considered them as hardly ‘alien to, or in any way outside, the [statutory] language’.270 Their Honours identified ‘material indications’ in the legislation that moral considerations may be relevant. The first was the use of the word ‘proper’, which implied ‘something beyond mere dollars and cents’, inviting consideration of all of the relevant surrounding circumstances.271 Second, they sourced moral considerations from the ‘comprehensive language’ of the types of provision that a court may order — by way of maintenance, support, education or advancement.272 And finally, the reference in the relevant statute to disentitling character or conduct — which entitles the court to refuse an order in favour of any person ‘on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order’273 — suggested the relevance of moral considerations.274 17.63 Yet perhaps aside from this final ‘material indication’, which nonetheless makes no reference to morality, it is not difficult to understand why some judges have queried the role and value of moral considerations in this context. None of these ‘material indications’ invites inquiry into moral considerations except by inference. In Benney v Jones275 Priestley JA viewed the word ‘ought’ in the New South Wales legislation — phrased in terms of whether, in the opinion of the court, an order for provision ‘ought’ to be made276 — as a ‘very clear indication’ that an eligible person must show a moral claim on the estate before an order can be made. Yet it is again unclear why an

inquiry into morality, as distinct from any other characteristic, is necessarily heralded by the term ‘ought’ or, for that matter, the term ‘proper’. The general admonition to take into account, in the exercise of the court’s jurisdiction, the ‘character and conduct’ of the applicant277 perhaps presents a stronger ground for moral inquiry,278 but is no more than one factor potentially relevant to that jurisdiction. 17.64 As from 1 January 2015,279 the moral element has been made explicit in the Victorian legislation, in stating that the court must not make a family provision order unless satisfied, inter alia, that ‘at the time of death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support’.280 Yet the point was arguably implicit even preceding this provision, as a matter of statutory construction of its predecessor, which referred to an order in favour of a person ‘for whom the deceased had responsibility to make provision’.281 This led the Victorian Court of Appeal to rule that ‘responsibility’ in this context meant ‘moral [page 604] responsibility’ — that is, a responsibility with a moral basis — given the absence of any legal responsibility to this effect.282 Yet the court still queried the need to refer to the deceased’s ‘moral duty’ in applying the statutory criteria for resolving the question of whether the deceased had a ‘responsibility’.283 Rather, the court saw reference to a deceased’s ‘moral duty’ as simply a ‘compendious description’ of those criteria. This view paralleled that espoused some years earlier by Ormiston J in Collicoat v McMillan:284 … the expression ‘moral duty’ remains a simple and convenient way of referring to the obligation, hypothetical as it may be in some cases, resting upon a testator to make a wise and just assessment of the interests of all persons who might fairly ask to be taken into account in determining what adequate provision for proper maintenance and support should have been made for them … [T]he word ‘moral’ used in connexion with the legislation is apt to describe what is generally considered, according to accepted community standards, to be the obligation of a testator to do what is right and proper for those members of his or her family whom one would expect to be entitled to share in the distribution of his or her estate on death. Indeed the word is particularly apposite when considering family relationships and the obligations arising from them for the purpose of ascertaining what is right and just as between members of a family.

In this sense, therefore, the concept of ‘moral duty’ operated at a meta-level — as ‘the norm to be found in society’s reasonable expectations of what a wise and just person would do in the circumstances, by reference to contemporary community standards’285 — as opposed to a synonym for, or as supplanting, the statutory language. That the statutory criteria culminate with ‘any other matter the Court considers relevant’286 did, though, present an opening for the explicit consideration of moral duty.287 17.65 Lacking (other than now in Victoria) any explicit statutory reference to moral duty, it is unsurprising that some judges and commentators have queried the need for, and usefulness of, referring to ‘moral duty’ in this context, which in any case is a concept bedevilled by certainty in its application.288 These remarks are not confined to lower courts. In Singer v Berghouse,289 in obiter, Mason CJ, Deane and McHugh JJ doubted that references to moral duty or moral obligation provided any useful assistance in elucidating the statutory provisions, fearing that they may amount to ‘a gloss on the statutory language’. And nearly 40 years earlier Fullagar J expressed concern that the expression ‘breach of moral duty’ should be too literally translated into the statutory schema.290 The concerns have not abated with time. In 2005 Gummow and Hayne JJ, noting that the phrases ‘moral duty’ or ‘moral claim’ are liable to being misunderstood — being likely to import notions of morality such as ‘disqualifying conduct, personal conduct, sexual acts, drinking habits etc’291 — considered it ‘better to forgo any [page 605] convenience that these shorthand expressions may offer in favour of adherence to the relevant statutory language’.292 Whereas the New South Wales Court of Appeal viewed the above obiter remarks in Singer v Berghouse as binding in that jurisdiction293 (the Singer litigation had, after all, originated in New South Wales), a directly opposed view emanated shortly thereafter by the corresponding Victorian court. Callaway JA concluded that ‘the authorities so strongly favour the criterion of what a wise and just testator would consider his or her moral duty that we are

not free to jettison it’.294 17.66 Yet this apparent divergence of views may well lie more in form than substance. This has not been lost on judges, in view of judicial remarks that ‘too much has been made of this’295 and that perhaps ‘the controversy was a lot of fuss over very little’.296 What is clear is that any inquiry into ‘moral duty’ is (other than in Victoria where the legislation uses the phrase) not designed to supplant the statutory wording, and so can neither restrict nor expand the jurisdiction or discretion the statute confers. Accordingly, no moral claim or duty can rest on considerations beyond those contemplated by the legislation. As the term ‘moral’ here is no invitation to inquire into ‘morality’ at large, but only within the confines of the statutory wording and object, it ultimately may serve only a descriptive function.297 It stands to reason, therefore, that reference to a ‘moral duty’ or ‘moral claim’ seems concerned more with describing an outcome than a necessary process or inquiry directed to that outcome.298 And whether or not it is useful to refer to concepts of morality, the case law reveals that the outcome does not appear to differ.299 The potential for divergence arguably arises only if ‘moral duty’ is allowed to supplant any proof of ‘need’, which in any case is addressed by the prevailing broader ‘relative’ conception of need.300 Nonetheless, in deference to the continued judicial reference to ‘moral duty’ or ‘moral claim’ in this context, this work follows suit. Moral duty, in any event, performs its arguably most useful role in comparing an applicant’s claim to that of the beneficiaries of the deceased’s will or the rules of intestacy. To the extent that those beneficiaries would, in any case, fall within the class of persons eligible to apply for [page 606] provision from the deceased’s estate, the question whether the deceased has fulfilled his or her moral duty to the applicant(s) for provision is hardly one independent of the deceased’s moral duty to those chosen as recipients of his or her bounty. In other words, the moral claim of an applicant for provision cannot be assessed independently of the moral claim of existing will

beneficiaries. Where the beneficiaries fall within the class of persons for whom the deceased is, according to accepted community standards, under a moral duty to provide — typically his or her spouse and children — an applicant for provision may face a potentially significant hurdle in establishing a moral claim to provision. Conversely, where the beneficiaries of the will are persons or institutions to whom the deceased is not generally understood to owe moral duties — such as charities or friends — the court, it has been said, ‘may more readily disturb the bequests to those beneficiaries’ in favour of an applicant to whom a moral duty to provide is owed, albeit only to the extent necessary to provide adequate provision for the applicant’s proper maintenance.301

Quantitative criteria — ‘adequate’ and ‘proper’ ‘Adequate’ distinguished from ‘proper’ 17.67 For the purposes of family provision legislation, the word ‘adequate’ connotes something different from the word ‘proper’. It focuses on the amount of the maintenance, education and advancement in life, whereas ‘proper’ prescribes the standard of that maintenance, education and advancement.302 As a result, it cannot always be assumed that what is ‘adequate’ provision is also ‘proper’ provision. For instance, a small sum may suffice for the ‘adequate’ maintenance of a child, but having regard to the child’s station in life and the fortune of his or her father, it may prove insufficient for the child’s ‘proper’ maintenance. Alternatively, a sum that is insufficient for a child’s ‘adequate’ maintenance may be sufficient for the child’s maintenance on a scale that, in view of the smallness of the estate, is ‘proper’ in all the circumstances.303 This highlights that what may be considered an adequate provision for proper maintenance can vary according to all relevant circumstances. Although the size of the deceased’s estate is clearly a relevant circumstance,304 that others may impact on the question of adequacy was made clear by Callinan and Heydon JJ in Vigolo v Bostin.305 Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and … changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the

potential beneficiaries must be taken into account and weighed with all of the other relevant factors.

[page 607] 17.68 That these factors have also been identified as relevant to the inquiry into what is ‘proper’ provision306 does not mean that ‘adequate’ and ‘proper’ target the same inquiry, but that circumstances relevant to one are also capable of being relevant to the other. It is unsurprising, therefore, to find remarks that the ‘adequate’ and ‘proper’ criteria are ‘always relative’, determined not by ‘fixed standards’ but on a court’s opinion grounded in its own general knowledge and experience of current social conditions and standards.307 Whether a determination of what is ‘adequate’ can be entirely relative has been queried, spawning the suggestion of a ‘ceiling or maximum amount’,308 to be objectively ascertained by reference to the applicant’s need and moral claim. Yet the allied suggestion that this exercise is to be conducted ‘without reference to the relativities’ has itself been queried. After all, what constitutes adequate provision in the context of a wealthy family will ordinarily produce a different outcome, provision-wise, from the case of a family in poverty.309 17.69 In any event, reference to a ‘ceiling or maximum amount’ is prone to mislead, at least so far as it suggests a more generally applicable limit to the quantum of family provision orders. Any such ‘ceiling or maximum’ is factspecific; it is in this sense that the relevant criteria are ‘relative’,310 and explains the reference in some of the case law that the court is not considering any empirical standard of adequacy.311 A ‘ceiling or maximum amount’ conveys, inaccurately, the idea that what is ‘adequate’ can be determined in an objectively precise fashion. The nature of the curial discretion in this context indicates otherwise.312

Link between ‘adequacy’ and ‘need’ 17.70 The concept of ‘adequacy’, in focusing on the quantum of provision, exhibits a close association with (albeit not equating to) the applicant’s financial need.313 The issue of relativity recognises that ‘needs’ may indeed vary with the circumstances, and be influenced not just by the applicant’s

needs per se, but by, inter alia, the size of the estate and the strength of competing claims.314 ‘Need’ cannot therefore be considered in vacuo. Accepting that need is a relative concept, it must nonetheless be shown to establish a claim;315 proof of a mere moral claim will not suffice.316 Hence the observation that ‘those who are capable of supporting themselves comfortably, and are likely to be able to do so for the rest of their lives, will find it difficult to show any breach of moral obligation to make adequate provision for proper maintenance and support’.317 [page 608] 17.71 But the focus on ‘need’, coupled with the acknowledgment that the inquiry is a relative one, dictates that an applicant need not establish, as a precondition to securing an order for provision, that he or she is destitute or otherwise in necessitous circumstances.318 To phrase the relevant inquiry in terms of whether the applicant was destitute or in urgent need of financial assistance misaligns with the statutory language.319 A test of ‘need’ in its strict sense would overemphasise the term ‘adequate’ as against ‘proper’.320 Curial references to family provision being directed to maintaining ‘indigent’ applicants321 should not be understood as setting poverty as the relevant threshold. So, for instance, adequate provision for the proper maintenance of a child is not limited to providing what suffices for a basic subsistence or satisfies the mere needs of that child. It has been observed, to this end, that ‘the testamentary duty of a man towards his family is not limited to a merely eleemosynary provision sufficient to provide the necessities of existence’322 and, more generally, that the need ‘is not restricted to the requirements of basic necessity or sustenance’.323 In line with the foregoing, it has been judicially remarked that a court may find a moral obligation to provide even in circumstances where the applicant is ‘comfortably situated financially’.324 And indeed occasions in the case law exist where successful applicants have hardly been ‘in need’, even in an expansive sense of that word. For example, in Goodman v Windeyer325 the High Court held that the deceased had a moral obligation to provide for his widow, even though the widow herself had ‘quite substantial’ assets. And in Unger v

Sanchez326 Kaye J awarded $200,000 out of a $1.4m estate in favour of an applicant who had cared for the testator over several years even though she (with her husband) owned their own home, and had a half interest in two residential investment properties, coupled with a healthy superannuation entitlement. On each occasion, the claim was based substantially, if not primarily, upon the deserts and conduct of the applicant towards the deceased, and in some ways challenges the courts’ repeated admonition that the family provision regime is not a vehicle for applicants to secure rewards for service to the deceased.327 17.72 What the cases clearly highlight, moreover, is that beyond the concept of ‘need’ being a relative one — it is relative to the station in life of both the deceased and the applicant, relative to the size of the estate, and relative to the competing claims on the estate328 — it is also a fluid one. For instance, as foreshadowed above, the applicant’s character and conduct can impact upon his or her claim for provision, even though it is a factor ostensibly independent of, [page 609] and unrelated to, his or her ‘need’.329 Rather, it seems, an applicant’s ‘need’ may be less pressing if there are other grounds that justify an order for provision. In any case, the applicant’s relative ‘need’ in this context influences the quantum of the order. So in Unger the award was limited to one-seventh of the estate, notwithstanding the applicant’s ‘extraordinary degree of devotion and sacrifice’,330 to give effect to the deceased’s testamentary wishes to benefit his sister, who was in relative poverty.331 17.73 A further point to note about the concept of ‘need’ is that it is not confined to whether or not an applicant has, at the date of hearing, a then need for financial assistance. It is a broader concept because the issue of need must be addressed in the context of the statutory inquiry into what is ‘proper maintenance, education and advancement’ of that person, and thus has a more encompassing, and includes a future, focus.332 Also, in line with the approach to what is ‘adequate’ provision, what is ‘proper’ for the maintenance,

education and advancement of an applicant is not limited to bare sustenance.333 17.74 Although the concept of ‘need’ is relative, fluid and broad, it remains significant to the question of whether the provision for the applicant is ‘adequate’. Applicants who are financially ‘comfortable’ or ‘well off’ face a correspondingly higher hurdle to establishing lack of adequate provision than equivalent applicants who are in more straitened financial circumstances. And even if an applicant establishes that provision is inadequate, the concept of ‘need’ impacts upon what provision should be made for his or her ‘proper’ maintenance.334 So in Chapman v Chapman335 Connolly J noted the wish of the applicant, who was the deceased’s former wife, to move to a more expensive residence, but remarked that ‘that of itself falls well short of need’. And Dodds-Streeton J in MacEwan Shaw v Shaw336 refused to order provision for private school fees for the deceased’s grandchildren’s education, reasoning that a private education ‘is generally regarded as a privilege and cannot be characterised as a need’. 17.75 The foregoing dovetails into the notion that a deceased’s capacity to be more generous in making provision for an applicant does not, by itself, substantiate an argument that more generous provision should have been made.337 So merely because the estate is large is no licence for a court to indulge every applicants’ wish; the statutory criteria serve to restrain any such judicial enthusiasm, which must in any case operate against the primary duty to give effect, as far as possible, to the deceased’s testamentary directions. If the relevant need is not established, the court lacks jurisdiction to make an order, no matter how large the estate.338 And this remains so even if the testator has made generous bequests to persons financially (far) better positioned than the applicant. Consistent with the notion that the family provision regime is not directed to securing an ostensibly fair outcome as between family members,339 it ‘does not license the court to effect a redistribution of an estate because it would satisfy notions of [page 610]

familial generosity, or because the claimant has few resources and the defendant taking benefits under the will is relatively well off’.340 At the same time, it should not be assumed that an expensive residence, private school fees, or other items on an applicant’s ‘wish list’, more so than true needs, could never come within an order for provision. The size of the estate, coupled with the broader needs of an applicant and the lifestyle to which he or she has become accustomed, may justify otherwise.341 In particular, a line of authority supports a testator’s moral duty to support a surviving spouse in the manner to which the latter is accustomed, assuming a sufficient estate,342 although instances can also be found regarding parallel support for a deceased’s offspring.343

Qualitative criteria 17.76 The family provision legislation uniformly uses the terminology ‘provision’ and ‘maintenance’ and, depending on the jurisdiction, uses the terms ‘maintenance’, ‘education’, ‘advancement’ and/or ‘support’. In no case are these terms statutorily defined, but at the same time, in view of the remedial object of the legislation, scope for stringent constructions of any of them does not exist. To this end, the word ‘provision’, it has been said, ‘covers the many forms of support and assistance which one individual can give to another’, which ‘will vary over the course of the person’s lifetime’.344 In similar vein, the following has been said of the words ‘maintenance’, ‘support’ and ‘advancement’:345 ‘Maintenance’ may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. ‘Support’ similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote ‘advancement’ would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education.

So in line with the literal meaning of the words in question, there is, for instance, no need to confine the term ‘advancement’ to provision for an applicant’s childhood years.346 After all,

[page 611] the statute places no age barrier or limit in the classes of eligible persons. ‘Support’ has been viewed as an ‘additional and wider term than maintenance’, used in its wider dictionary sense of ‘sustaining, providing comfort’.347 Whether the lack of mention of ‘support’ or ‘education’ in the Queensland and Tasmanian legislation, and omission of the term ‘support’ in the remaining jurisdictions (except Victoria and Western Australia), makes any practical difference to the breadth of the court’s jurisdiction may be queried. The outcomes of decided cases certainly do not suggest this. And although it is not assumed that, generally speaking, additional terms are surplusage, even in those jurisdictions that refer only to ‘maintenance and support’, the ordinary meaning of those words is sufficiently broad, arguably, to encompass ‘advancement’ and ‘education’.

Perspective from which inquiry is made ‘Wise and just’ testator 17.77 In determining whether provision should have been made for an applicant and, if so, its quantum and form, the court inquires from the perspective of a ‘wise and just’ testator informed by ‘accepted community standards’. As regards the former, the court attempts to place itself in the position of the testator and then considers ‘what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, [testator]’.348 Although the courts traditionally refer to a testator in this context, the same standard applies in the context of intestacy, modified by reference to how a ‘wise and just’ person in the deceased’s position would have made provision. The ‘wise and just’ criteria do not serve to introduce an inquiry into whether or not the distribution of the deceased’s estate was objectively fair.349 Nor do they invite a court to adjudge a proposed order for provision against the barometer of fairness or equity. Neither aligns with the aim(s) of the family provision regime.350 Rather, the criteria inform the statutory inquiry — whether the deceased made adequate provision for an applicant’s proper

maintenance. It follows that an inquiry into what is ‘fair and just’ is not one entirely at large, but within statutorily prescribed parameters. 17.78 In determining how a ‘wise and just’ person may have acted, the court assumes that he or she was aware of all the relevant circumstances, including reasonably foreseeable eventualities existing at the date of death.351 Accordingly, an evaluation of what is ‘adequate’ and what is ‘proper’ may depend partly on circumstances not actually known to the deceased;352 so even if, on the basis of circumstances known to the deceased, there was no noncompliance with any moral duty, a claim may still succeed.353 But the court’s jurisdiction, and discretion, is in no way tied to proof of a testator’s lack of awareness. The case law reveals multiple occasions where testators, though apparently aware of the plight of their dependants, made deliberate [page 612] choices to exclude them from testamentary benefit or otherwise made inadequate provision for them. On other occasions the antiquity of the testator’s will reveals a failure to even consider an applicant.354

‘Accepted community standards’ 17.79 Not only does the court stand in the shoes of the testator in exercising its jurisdiction, it is guided in so doing by its perception of ‘accepted community standards’. This, it has been said, invites ‘a broad evaluative judgment unconstrained by preconceptions and predispositions’,355 prompting judges to openly concede the challenges in making assessments of this kind in a complex and changing social environment,356 in particular where they cannot readily associate with the nature of the relevant relationship. The candid words of Byrne J highlight the challenge, and suggest an avenue to address it:357 Difficulty arises where this is a relationship between members of a community with which the judge is not familiar. This may be a particular ethnic or social community; it may be a community whose bond is that of sexual orientation. In the absence of evidence of this, which may or may not be available or perhaps inadmissible, the judge must do the best he or she can, bringing to bear wisdom, an openness of mind drawing upon long experience of life and human conduct and

attitudes, and above all, resisting the temptation to apply perceived stereotypes. Another temptation to be resisted is to assume that all members of the community think and conduct themselves like the judge and share the same values and moral imperatives.

The reference to accepted community standards, his Honour added, ‘requires a consideration of what those standards of the general community are at the time from which the will speaks’,358 that is, at the moment the will takes effect. These standards may differ from those at an earlier time, and indeed even those at the time the will was executed. For example, Byrne J found little difficulty in concluding that a relationship between unmarried heterosexual partners, or between homosexual partners, would today, although perhaps not in the past, be seen by the general community as one that might give rise to a moral obligation.

Timing of inquiry 17.80 The timing of the relevant inquiries under the family provision legislation differs between jurisdictions. In the Australian Capital Territory and New South Wales, it targets the date of the order. The Australian Capital Territory statute empowers the court to order provision only if it is satisfied that ‘as at the date of the order’ adequate provision is not available.359 The equivalent New South Wales provision confers this power where the court is satisfied of the relevant matters ‘at the time when the court is considering the application’ and directs the court, in exercising its discretion, to have regard to the facts ‘known to the court at the time the order is made’.360 It also entitles the court to have regard to any matters it considers relevant, whether in existence at the time of the deceased’s death or at the time the application [page 613] is being considered.361 What the circumstances are at the date of death does not, therefore, determine the outcome in these jurisdictions. 17.81 In the remaining jurisdictions, excepting Victoria, the legislation does not explicitly identify the timing of the court’s inquiry. Courts have adopted a two-pronged timing inquiry, which aligns with the ‘jurisdictional’ and

‘discretion’ stages,362 to this end. The first (‘jurisdictional’) stage — where the question is whether adequate provision has been made — must be determined by a consideration of the facts existing and eventualities that might reasonably have been foreseen at the date of the testator’s death. The second (‘discretion’) stage — where the question is what order should be made — is to be decided by reference to the state of facts existing at the time of the hearing by the court.363 Judicial remarks that ostensibly focus exclusively on an inquiry as at the date of death, aside from predating the clear exposition of the two-stage inquiry by the High Court in Singer v Berghouse,364 must be construed in context. The statutory wording is certainly amenable to a focus on the date of death,365 but to ignore intervening events, especially those that are foreseeable, could generate over-provision or under-provision depending on the circumstances. This explains the need to target the discretionary inquiry as at the date of the court order, and derives support from the remarks, which though lengthy deserve full quotation, of Dixon CJ in Coates v National Trustees Executors and Agency Co Ltd:366 But the very question what is proper maintenance and support involves the future of the widow or children to be maintained or supported. It is, however, the future stretching forward from the date of the testator’s death and therefore considered as from that date. It involves what is necessary or appropriate prospectively from that time. To determine that question contingent events must be taken into account as well as what may be considered certain or exceedingly likely to happen. When a court is called upon to consider such a question many years after the date at which the court must take its stand, all the advantage is available of knowing the events that have occurred. The intervening events may be taken into consideration because they suggest or tend to show what antecedently might have been expected. But they must not be outside the range of reasonable foresight. If all contingencies that might reasonably have been anticipated have been taken into account, it would be difficult to say that the actual occurrence of some event which antecedently no-one could reasonably have foreseen shows that the maintenance or support was not proper or the provision therefore was not adequate. It is therefore impossible to treat actual intermediate occurrences as more than evidentiary facts. The ultimate question must remain one of adequate provision for proper maintenance and support as at the date of the testator’s death … But it would not be a proper exercise of discretion if the facts as they exist at the time the order is made were left out of account. If a child, through some accession of fortune, had ceased before the hearing of the application to require any further provision for his maintenance or support it would not be a proper exercise of discretion to make an order in his favour on the ground that it was only after his father’s death that his needs were thus met. It is not a discretion to give more than what is adequate for proper maintenance in the circumstances as they have come to exist. On the other hand it is not a discretion to make a provision for proper maintenance and support which exceeds any provision that the foresight, wisdom, and fairness of a reasonable man in the testator’s situation would have led him to make for the proper maintenance and support of the widow or child applying.

[page 614] It follows that, where an applicant has established that inadequate provision was made for him or her at the date of the testator’s death, jurisdiction is thereby established; but if the applicant’s situation has worsened or improved since that date, such improvement or worsening must be considered.367 Events subsequent to death are therefore hardly irrelevant for the purpose of assessing the adequacy of provision. 17.82 The Victorian legislation states that the court, in making a family provision order, may have regard to a list of criteria,368 only one to which a timing element attaches, found in s 91A(2)(d).369 The latter requires the court to take into account ‘the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future’ of the eligible person, any other eligible person and any beneficiary of the estate. The absence of mention of timing in the remaining criteria may suggest that the assessment of those criteria is made as at the time of death.370 But as inquiry into resources and needs ‘at the time of the hearing and for the foreseeable future’ will, practically speaking, ‘only be relevant where there is a change in the financial position of the applicant or other beneficiary as between the time of death and the trial’,371 the Victorian position may well align with that in the remaining jurisdictions.372

1. 2. 3. 4. 5. 6. 7. 8. 9.

See Chapter 16. ACT s 8(1); NT s 8(1); Qld s 41(2)(a) (see definition of ‘court’ in s 4); SA s 7(1) (see definition of ‘court’ in s 4); Tas s 3(1) (see definition of ‘court’ in s 2(1)); WA s 6(1) (see definition of ‘court’ in s 4(1)). NSW s 59(1) (see definition of ‘court’ in s 3(1), referring to District Court Act 1973 (NSW) s 134(1) (c), (2)). Vic s 90 (definition of ‘court’). As to which see Chapter 9. Langley v Langley [1974] 1 NSWLR 46 at 48 per Mahoney J; Clifford v Mayr [2010] NSWCA 6; BC201000435 at [151] per Young JA. See 18.7–18.12 (in the context of spouses). See 19.6–19.8. ACT s 8(1); NSW s 59(1); NT s 8(1); Qld s 41(1); SA s 7(1); Tas s 3(1); Vic s 90A(1) (before 1 January 2015, Vic s 91(2)); WA s 6(1). As to persons who are eligible to apply for provision, see

10.

11.

12. 13. 14.

15. 16.

17.

Chapter 16. Re Adamow (1989) 97 FLR 410 at 415 per Miles CJ (‘There is no requirement in the law that a person to whom a testator has left all or part of the testator’s estate should have to justify the testator’s decision at all, let alone on the basis that what the testator did was compelled by moral duty’); Edgar v Public Trustee for the Northern Territory [2011] NTSC 5; BC201100052 at [46] per Kelly J (‘There is no onus on the widow as residuary beneficiary under the will to show that she is entitled to be treated as such — or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will’). See NSW s 60(2)(d) (court may have regard to ‘the financial resources (including earning capacity) and financial needs, both present and future, … of any beneficiary of the deceased’s estate’; in this context the term ‘beneficiary’ includes not only persons taking under a valid will but also those entitled upon intestacy: Re Estate of Harrigan [2012] NSWSC 291; BC201203480 at [27]–[46] per Ward J); Vic s 91A(2)(d) (court must have regard to ‘the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of: (i) the eligible person; and (ii) any other eligible person; and (iii) any beneficiary of the estate’) (before 1 January 2015, Vic s 91(4)(h)). Anderson v Teboneras [1990] VR 527 at 535 per Ormiston J. Eggins v Robinson [2000] NSWCA 61; BC200002032 at [26] per Sheller JA, applied in the family provision context by Bryson AJ in Zahra v Francica [2009] NSWSC 1206; BC200910125 at [1], [2]. Cf Wills and Succession Act 2010 (Alta) s 95 (under which a party to an application must, on the written request of another party, provide that other party with financial information as provided for by the regulations that is necessary for the determination of maintenance and support, and then prescribes that the court may, in the event of non-compliance with such a request: (a) order the party to provide some or all of the required information to one or more other parties or to the court; (b) dismiss any application made by or on behalf of that party, but proceed to hear the application in respect of the other parties; (c) proceed to hear the application and, in the course of doing so, may draw an adverse inference against the party who failed to comply with the request and impute income or assets to that party in an amount the court considers appropriate; and/or (d) award costs in favour of one or more other parties). See 17.70–17.75. See, for example, Singer v Berghouse (CA(NSW), Kirby P, Sheller and Cripps JJA, 23 July 1992, unreported) BC9202726 (where Sheller JA found it ‘extraordinary that the appellant presented scant or no evidence as to her present income and outgoings or as to her intentions or needs for the future or as to what lump sum provision applying appropriate discount tables would be required to meet these claims or needs, if they existed’, and ruled that, in the circumstances of the case, ‘for the court, in the absence of any such evidence, to make an order for the payment to the appellant of a lump sum is to do no more than act on speculation and … to alter the deceased’s disposition of his property in the absence of proof that he has inadequately provided for the appellant’; these remarks were endorsed in the joint judgment of Mason CJ, Deane and McHugh JJ on appeal in Singer v Berghouse (1994) 181 CLR 201 at 213; BC9404642); Collicoat v McMillan [1999] 3 VR 803 at 825; BC9502481 per Ormiston J (where the applicants disregarded the observations in Singer). Thyssen v Pottenger [2003] NSWSC 787; BC200307396 at [38] per McLaughlin M; Foye v Foye [2008] NSWSC 1305; BC200811108 at [14] per McLaughlin AsJ; McLeod v Radnidge [2009] NSWSC 1105; BC200909391 at [34] per McLaughlin AsJ. See also Collings v Vakas [2006] NSWSC 393; BC200603235 at [67] per Campbell J (‘the court needs to be persuaded that it has been presented, at least in broad outline, with the whole picture concerning the plaintiff’s financial situation’);

18. 19.

20.

21. 22. 23. 24. 25.

26. 27.

28.

29.

30. 31. 32. 33. 34.

Graham v Graham [2011] NSWSC 504; BC201103983 at [118] per Hallen AsJ (referring to the duty to ‘adduce all of the evidence that fully, and accurately, discloses the financial and material circumstances of the [applicant], and bring those matters up to date at a time reasonably close to the hearing’). [2009] TASSC 116; BC200911702. Dodge v Blissenden [2009] TASSC 116; BC200911702 at [31]. See also Thyssen v Pottenger [2003] NSWSC 787; BC200307396 at [39] per McLaughlin M; Singh v Singh [2015] NSWSC 1457; BC201509672 at [162] per Black J; Stollery v Stollery [2016] NSWSC 54; BC201600492 at [119]– [124] per Stevenson J (family provision claim refused by reason of applicant’s failure to adduce evidence of his true financial position coupled with his longstanding estrangement from the deceased). See, for example, Re Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 (where the applicant lied to the court about her financial position by saying she did not have assets; Jordan J rejected the submission that the applicant’s perjury amounted to conduct disentitling her to an order, and made an order for provision in her favour); McLeod v Radnidge [2009] NSWSC 1105; BC200909391; Coulston v Tasmanian Perpetual Trustees Ltd [2010] TASSC 22; BC201002825. Coulston v Tasmanian Perpetual Trustees Ltd [2010] TASSC 22; BC201002825 at [9] per Tennent J. Nowak v Beska [2013] NSWSC 166; BC201301067 at [62] per Hallen J. Goodchild v James (1994) 13 WAR 229 at 236; BC9401862 per Ipp J. NSW s 60(2)(e). Foye v Foye [2008] NSWSC 1305; BC200811108 at [15] per McLaughlin AsJ (‘If [the applicant] chooses not to inform the Court of the details of the finances of the wife with whom he is living, then the Court is entitled to draw appropriate inferences from that omission’). As to these lists, see 19.3–19.5. Cf the policy underscoring ss 82(4) and 90SJ(2) of the Family Law Act 1975 (Cth), which state that an order with respect to the maintenance of a party to a marriage or de facto relationship ceases to have effect upon the (re)marriage of the party unless in special circumstances a court otherwise orders. See, for example, Goodchild v James (1994) 13 WAR 229 at 237; BC9401862 per Ipp J (noting that, ‘having regard to the relatively small contribution by the [applicant] to the acquisition of the properties owned jointly by him and his wife, and the wide powers of the Family Court under the Family Law Act 1975 (Cth) (s 78 to s 80) in regard to the alteration of property rights according to what is just in the event of a divorce, the proposition that the [applicant’s] share in the properties concerned should be valued at half their market value, is somewhat doubtful’). See, for example, Collins v McGain [2003] NSWCA 190; BC200303888 (where the applicant transferred property valued at $6.8m to his wife, and then claimed that he had not been adequately provided for under his mother’s will; Tobias JA, with whom Beazley and Hodgson JJA concurred, refused the applicant’s claim for provision, noting that the applicant, ‘for reasons good or bad, deliberately divested himself of his entitlement which he would not otherwise have obtained were it not for the deceased’s actions that resulted in a substantial increase in his shareholding in the company’: at [75]). Zahra v Francica [2009] NSWSC 1206; BC200910125 at [2] per Bryson AJ. WA s 4(2). WA s 4(3). ACT s 10(1), (2); NT s 10(1), (2); SA s 7(2); Vic s 93; WA s 12(1). Burns v Elder’s Trustee and Executor Co Ltd [1968] SASR 297 at 300–1 per Mitchell J; Ruwolt v DrakeBrockman (SC(WA), Ng M, 29 March 1996, unreported) BC9601037 at 7; Blunden v Blunden (2008)

35. 36. 37. 38.

39.

40. 41.

42. 43. 44. 45. 46. 47. 48. 49. 50.

258 LSJS 206; [2008] SASC 286; BC200809761 at [7] per Bleby J; Re Estate of Coppola (deceased) (2011) 5 ASTLR 273; [2011] SASC 182; BC201108188 at [27]–[30] per Judge Withers; O’Brien v Hall [2015] VSC 52; BC201500887 at [83]–[102] per Derham AsJ. The same had been held in Queensland under the previous Queensland legislation (namely Testator’s Family Maintenance Act 1914 (Qld) s 3(8)), under which time commenced to run from the date of grant of probate: Re Jenner (deceased) [1960] Qd R 349 (FC); Re Wieland (deceased) [1960] Qd R 585 (FC). English authority on parallel legislation adopts the same approach: Re Searle [1949] Ch 73 at 76–7 per Roxburgh J; Re Bidie (deceased) [1949] Ch 121. See 17.22. As to extensions of time in family provision applications, see 17.23–17.44. NSW 1982 s 7 (‘on an application in relation to a deceased person in respect of whom administration has been granted’). The current NSW s 59(1) simply commences with the words, ‘The court may, on application …’. The absence of a requirement for probate is contemplated by the terms of s 58(1), which states that ‘[a]n application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted’. See Cabban v Cabban [2010] NSWSC 1433; BC201009497 at [55], [56] per Macready AsJ; Wheat v Wisbey [2013] NSWSC 537; BC201302462 at [57] per Hallen J. NSW s 91(1), (2). The National Committee for Uniform Succession Laws, in recommending this provision, noted that ‘[t]here have been difficulties in jurisdictions requiring a grant of probate for family provision purposes where a person entitled to a grant of probate has refused to take it’, in that ‘[i]f there is no grant of probate there is no one to sue’: QLRC, MP 28, p 126. The provisions of the Probate and Administration Act 1898 (NSW) apply to a grant of administration under NSW s 91, and to the legal representative of the estate, in the same way as they apply to a grant of administration under the 1898 Act and the legal representative of any estate for which such a grant has been made: NSW s 91(4). Cf the former s 41A of the (then) Wills, Probate and Administration Act 1898 (NSW), being the precursor of NSW s 91, as discussed in Leue v Reynolds (1986) 4 NSWLR 590; Re Estate of Cassel [2000] NSWSC 294; BC200001708 at [7]–[10] per Young J. See also Cabban v Cabban [2010] NSWSC 1433; BC201009497 at [57], [58] per Macready AsJ. Qld s 41(8). See, for example, Stephens v Perpetual Trustee Company Ltd (2009) 76 NSWLR 15; [2009] NSWSC 1078; BC200909221 at [18]–[20] per Palmer J (involving a child aged 12 upon his death, who had received a substantial award of damages as a result of suffering brain injury, part of which his grandmother used to meet his living expenses as sole carer). Cf the position in Nova Scotia, where the relevant legislation explicitly states that the right to apply for a family provision order does not survive the death of the applicant: Testators’ Family Maintenance Act 1989 (NS) s 17. (1979) 22 SASR 139. Re Wardle (1979) 22 SASR 139 at 144. (1935) 35 SR (NSW) 516. [1957] NZLR 152. [1962] NZLR 1000. [1961] VR 264 at 266 (who rejected the argument that a claimant’s right to bring an application for provision had, on the applicant’s bankruptcy, vested in the applicant’s trustee-in-bankruptcy). Read v Nicholls (2004) DFC ¶95-307; [2004] VSC 66; BC200402114 at [41] per Nettle J. King v Condon [2009] 2 Qd R 143; [2009] QSC 67; BC200902341; Affoo v Public Trustee of Queensland [2012] 1 Qd R 408; [2011] QSC 309; BC201108181 at [30]–[32] per Dalton J.

51.

52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62.

63.

64. 65.

66. 67. 68. 69. 70. 71.

(1989) 16 NSWLR 92 at 102. This view also finds expression in English case law: see, for example, Whytte v Ticehurst [1986] Fam 64; Re Bramwell (deceased) [1988] 2 FLR 263; Roberts v Fresco [2017] EWHC 283 (Ch). McEvoy v Public Trustee (1989) 16 NSWLR 92 at 101 (emphasis in original). As to this requirement, see 17.81. Namely the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW). NSW 1982 ss 7, 8 (reference to ‘circumstances’); NSW s 59(2) (reference to ‘facts’). See 17.81. King v Condon [2009] 2 Qd R 143; [2009] QSC 67; BC200902341 at [20] per de Jersey CJ. King v Condon [2009] 2 Qd R 143; [2009] QSC 67; BC200902341 at [8] per de Jersey CJ. See 17.80–17.82. ACT s 8(2) (emphasis supplied). ACT s 8(4); NT s 8(4); Qld s 41(6); Tas s 3(4); WA s 12(2). Zirkler v McKinnon [2002] NSWSC 285; BC200201631 at [35] per Macready M (who opined that one object of the section ‘is to make all possible claimants come forward so that all claims can be dealt with at the same time’). The reference to the court not disregarding the interests of a beneficiary of the estate gives statutory effect to the remarks of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 at 69, to the effect that the former provision (NSW 1982 s 20) does not enable the court ‘to disregard the claims of those to whom a deceased may have had a moral obligation which obligation had been adequately discharged by the provision made for that person in the deceased’s will’. This followed upon a recommendation of the National Committee for Uniform Succession Laws: QLRC, MP 28, p 75. The phrase ‘a beneficiary of the deceased person’s estate’ is not confined to those who take under a will, but can encompass persons who take on an intestacy: Nicholas v Nicholas [2013] NSWSC 697; BC201302870 at [50] per Hallen J (adding that the phrase refers to ‘any person who receives, or is entitled to receive, or who stands to receive, a benefit from the deceased’s person’s estate’ and that whether he or she ‘receives the benefit directly, or through the conduit of a deceased beneficiary, does not matter’: at [52]). The notice must give notice of the application, and of the court’s power to disregard the interests of the person, and must be served on him or her in the manner and form prescribed by the regulations or rules of court: NSW s 61(2)(a). NSW s 61(1), (2) (formerly NSW 1982 s 20(1), (2)). This provision was originally introduced to deal with the upshot of the decision in Re Bourke [1968] 2 NSWR 453, where it was held that the court should take into account the deceased’s duty to all eligible persons, including those who had made no application for provision, thus raising the prospect that an applicant could potentially be refused provision if persons with stronger claims existed but had not applied for provision. See New South Wales Law Reform Commission, Testator’s Family Maintenance and Guardianship of Infants Act 1916, Report 28, 1977, pp 38–9. See also Dunne v Dunne (2013) 12 ASTLR 299; [2013] VSC 1911; BC201315989 at [21]–[23] per Young AJ. SA s 8(7). Krol v Australian Executor Trustees Ltd [2010] SASC 302; BC201007911 at [13] per Judge Lunn. Delisio v Santoro (2002) 218 LSJS 199; [2002] SASC 65; BC200201354 at [58] per Besanko J. As to these time frames, see 17.22. Qld s 41(6); Tas s 3(4); WA s 12(2). In West v West (1996) 5 Tas R 392 at 395; BC9601483 Zeeman J stated that the exercise of the power to treat an application as made on behalf of others does not require that the application be treated, for limitation purposes, as having been made by those others. This appears inconsistent

72. 73. 74. 75. 76.

77.

78. 79. 80. 81.

82. 83.

84. 85.

with the terms of Tas s 3(4), which state that, if the court so orders, ‘the application shall, for the purposes of s 11 [time within which application to be made], be treated as an application made by all of those persons’. The presence of the imperative ‘shall’ appears to remove any discretion in this regard. His Honour also interpreted this part of Tas s 3(4) as being ‘specifically directed to the case where the limitation period has expired without an order treating all claimants as applicants having been made’: at 396. This again seems to go against the literal meaning of the statutory words, which presuppose that the court has ‘so ordered’. Of course, where the court has not ‘so ordered’, an application outside of time may nonetheless seek to prevail upon the court’s jurisdiction to extend time under Tas s 11(2): see generally 17.23–17.44. But there is no difficulty with Zeeman J’s statement that ‘the provision, without more, of a mechanism whereby a person not already an applicant may become an applicant without filing an originating application does not affect a limitation provision’: at 396; emphasis supplied. West v West (1996) 5 Tas R 392 at 396; BC9601483 per Zeeman J. Re Tiller (deceased) [1963] SASR 117; Krol v Australian Executor Trustees Ltd [2010] SASC 302; BC201007911 at [10]–[13] per Judge Lunn. See de Groot and Nickel, pp 337–8. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; BC6400590 per Barwick CJ. So far as applications for summary dismissal by defendants are concerned, the relevant rules are the following: ACT CPR r 1147; NSW UCPR r 13.4; NT RSC r 23.03; Qld UCPR r 293; SA SCCR r 232; Tas RSC r 367; Vic RSC rr 23.01(1), 23.03; WA RSC O 16 r 1. See also Federal Court of Australia Act 1976 (Cth) s 31A(2) (‘The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding’); Civil Procedure Act 2010 (Vic) s 62 (‘A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff’s claim or part of that claim has no real prospect of success’; see Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd [2011] VSC 222; BC201103404 at [18] per Dixon J). See further B C Cairns, Australian Civil Procedure, 11th ed, Lawbook Co, Australia, 2016, pp 531–8. Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28; BC201006309 at [24] per French CJ and Gummow J. See also at [55] per Hayne, Crennan, Kiefel and Bell JJ (emphasising the need for ‘exceptional caution’ in exercising a power to dismiss an action summarily). Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; BC8300087 per the court. Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 90; BC4900050 per Dixon J. Warren v McKnight (1996) 40 NSWLR 390 at 396; BC9604176 per Hodgson J. Higgins v Higgins [2005] 2 Qd R 502; [2005] QSC 110; BC200503235 at [15] per White J; Atthow v McElhone [2010] QSC 177; BC201003400 at [19] per Applegarth J; Sylvester v Sylvester [2010] QSC 331; BC201006579 at [51] per Mullins J. El-Zaouk v Draybi [2010] NSWSC 1001; BC201006693 at [25] per Hallen AsJ. See, for example, Higgins v Higgins [2005] 2 Qd R 502; [2005] QSC 110; BC200503235 (where the applicant, whose net assets totalled $2.1m, complained that his mother had failed to provide for him in the same way as she provided for his brother; White J summarily dismissed the claim, concluding that it was ‘bound to fail’: at [47]). Warren v McKnight (1996) 40 NSWLR 390 at 396; BC9604176 per Hodgson J; El-Zaouk v Draybi [2010] NSWSC 1001; BC201006693 at [25] per Hallen AsJ. El-Zaouk v Draybi [2010] NSWSC 1001; BC201006693 at [28] per Hallen AsJ; Atthow v McElhone

86. 87. 88. 89. 90. 91. 92.

93. 94.

95. 96. 97. 98. 99. 100. 101. 102. 103.

104.

105.

106. 107. 108.

[2010] QSC 177; BC201003400 at [20] per Applegarth J. [2010] QSC 177; BC201003400 at [29]. Atthow v McElhone [2010] QSC 177; BC201003400 at [19]. ACT s 9(1) (see definition of ‘administration’ in Dictionary); NT s 9(1) (see definition of ‘administration’ in s 4(1)). NSW s 58(2). Cf the former NSW 1982 s 16(1) (which prescribed an 18-month limitation period). Qld s 41(8). SA s 8(1) (see definition of ‘administration’ in s 4); Tas s 11(1); Vic s 99(1) (before 1 January 2015, Vic s 99); WA s 7(2)(a) (see definition of ‘administrator’ in s 4(1)). The National Committee saw the 12-month time limit as appropriate ‘both in the context of the efficient administration of the estate and from the point of view of certainty on the part of those with an interest in the distribution of the estate’: QLRC, MP 28, p 35. Cf VLRC, 2013, p 135 (which remained of the view that, notwithstanding the National Committee’s recommendation, the 6-month time limit strikes an appropriate balance in this context; note, however, that a Victorian judge has subsequently branded 6 months as too short, arguing that it ‘disadvantages the very categories of people who might be entitled to make application’: Younan v Younan (No 2) [2015] VSC 549; BC201509769 at [25] per Bell J). QLRC, MP 28, p 35 (expressing the concern that, were time to run with the granting of representation, informally administered estates would then be subject to a family provision application at any time). Pilton v Pilton [2008] WASC 303; BC200811526 at [24] per Sanderson M. See also Kalmar v Kalmar [2006] NSWSC 437; BC200603643 at [15] per White J (who identified the purpose of the limitation period as being ‘to allow estates to be wound up with reasonable promptness’). Andre v Perpetual Trustees WA Ltd [2009] WASCA 14; BC200900074 at [38] per Steytler P, with whom Pullin and Buss JJA concurred. Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159; BC200804698 at [78] per Muir JA. ACT s 9(2), (3); NT s 9(2), (3); SA s 8(2), (3). NSW s 58(2). Qld s 41(8). Tas s 11(2), (3). Vic s 99(2). WA s 7(2). Re Burgess [1984] 2 Qd R 379 at 382 per Carter J (‘good and obvious reasons’); Bird v Bird [2002] QSC 202; BC200203973 at [22] per White J; Pilton v Pilton [2008] WASC 303; BC200811526 at [24] per Sanderson M (‘very good reason’). As to this reason, see 17.22. Re Salmon (deceased) [1981] Ch 170 at 175 per Megarry VC. Time limits imposed by court rules, it has been said, ‘will be treated with the indulgence appropriate to procedural rules’: Re Salmon (deceased) at 175. Re Salmon (deceased) [1981] Ch 170 at 175 per Megarry VC. These remarks have been endorsed in Australian courts: see, for example, Clayton v Aust (1993) 9 WAR 364 at 366 per Malcolm CJ; Andre v Perpetual Trustees WA Ltd [2009] WASCA 14; BC200900074 at [40] per Steytler P, with whom Pullin and Buss JJA concurred; Izydorski v Rimmer [2010] WASC 175; BC201005195 at [5] per E M Heenan J. Izydorski v Rimmer [2010] WASC 175; BC201005195 at [5] per E M Heenan J. Holman v McClelland [2003] QSC 110; BC200302182 at [12] per Mackenzie J (aff’d Holman v McClelland [2003] QCA 509; BC200308471). Re Barrot [1953] VLR 308 at 312 per Sholl J; Re Salmon (deceased) [1981] Ch 170 at 175 per Megarry

109. 110. 111. 112. 113.

114. 115.

116.

117.

118. 119.

120. 121. 122.

VC. The Western Australian legislation makes specific reference to ‘the justice of the case’ in this context: WA s 7(2)(b). Re Salmon (deceased) [1981] Ch 170 at 175 per Megarry VC; Clayton v Aust (1993) 9 WAR 364 at 366–7 per Malcolm CJ. Andre v Perpetual Trustees WA Ltd [2009] WASCA 14; BC200900074 at [40] per Steytler P, with whom Pullin and Buss JJA concurred. Re Wherrett [1963] Tas R 178 at 179 per Crisp J; Lazenby v McDermott [2000] TASSC 21; BC200005125 at [23] per Underwood J. NSW s 58(2). Lewis v Lewis [2001] NSWSC 321; BC200101939 at [83] per Hodgson J (‘The expression “sufficient cause” must be taken to mean “sufficient explanation” or “sufficient justification or excuse”’); Taylor v Farrugia [2009] NSWSC 801; BC200907277 at [14] per Brereton J; Moore v Randall [2012] NSWSC 184; BC201201280 at [39] per White J (the expression ‘sufficient cause’ means ‘sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period’). Gibson v Haselgrove [2009] NSWSC 496; BC200905275 at [25] per Ward J. These include any prejudice to the beneficiaries (see 17.39), whether the plaintiff has been guilty of any unconscionable conduct (see 17.42) and the strength of the plaintiff’s case (see 17.37, 17.38): Massie v Laundy (SC(NSW), Young J, 7 February 1986, unreported) BC8601246; De Winter v Johnstone (CA(NSW), Sheller, Powell and Cole JJA, 23 August 1995, unreported) BC9505226; Warren v McKnight (1996) 40 NSWLR 390 at 394; BC9604176 per Hodgson J; Dare v Furness (1998) 44 NSWLR 493 at 500; BC9803449 per Cohen J; Lewis v Lewis [2001] NSWSC 321; BC200101939 at [82] per Hodgson J; Ebert v Ebert [2008] NSWSC 1206; BC200810055 at [38]–[45] per Ward J; Durham v Durham [2010] NSWSC 389; BC201002730 at [15] per Ball J (aff’d Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62; BC201102298); Campbell v Chabert-McKay [2010] NSWSC 859; BC201005447 at [45]–[47] per White J; John v John [2010] NSWSC 937; BC201006070 at [37]–[51] per Ward J; Thompson v Public Trustee of New South Wales [2010] NSWSC 1137; BC201007563 at [127] per Hallen AsJ. See Re Salmon (deceased) [1981] Ch 170 at 175–6 per Megarry VC; Re Magson [1983] NZLR 592 at 598 per Cooke J; Clayton v Aust (1993) 9 WAR 364 at 366–7 per Malcolm CJ; Delisio v Santoro (2002) 218 LSJS 199; [2002] SASC 65; BC200201354 at [60] per Besanko J; Enoch v Public Trustee of Queensland [2006] 1 Qd R 144; [2005] QSC 194; BC200505050 at [6] per Wilson J; Corbett v State Trustees Ltd [2010] VSC 481; BC201007929 at [58] per Kyrou J. See, for example, Erlich v Fleiszig [2013] VSC 63; BC201300824 (where Lansdowne AsJ, noting the weak explanation for a 6-month delay, that the case for further provision was not strong, and that the plaintiff had caused loss to the estate in his position as co-executor, concluded that ‘although no one factor referred to above alone would be sufficient in my view to lead to refusal of the application for extension of time, in combination they do so’: at [9]). [1981] Ch 170 at 175. See Re Claverie [1970] 2 NSWR 380 (16 years); Re Barry (deceased) (1974) 9 SASR 439 (18 years); Easterbrook v Young (1977) 136 CLR 308; BC7700030 (14 years); Duncan v Perpetual Trustees WA Ltd (SC(WA), Bredmeyer M, 4 March 1994, unreported) BC9401544 (24 years); Hadfield v Hadfield [2010] NSWSC 561; BC201003900 (13 years). Triplett v Public Trustee [2009] WASC 64; BC200901802 at [27] per Sanderson M. Izydorski v Rimmer [2010] WASC 175; BC201005195 at [6] per E M Heenan J. See 17.43, 17.44.

123. See, for example, Gilchrist v Equity Trustees Ltd [2011] VSC 107; BC201101526 at [127] per Zammit AsJ (‘There is force in the defendant’s submission about the difficulties of any litigation 30 years later. The plaintiff himself in evidence said he could not recall a number of significant matters, including whether he had received legal advice about his entitlements under the will. The plaintiff gave evidence that he now suffers from memory loss. There is an argument that there will be no person able to give accurate evidence about events which occurred in excess of 30 years ago’). 124. See, for example, Szypica v O’Beirne [2013] NSWSC 297; BC201301766 (where a 17-day delay, adequately explained, to which no prejudice attached, justified an extension of time: at [18]–[30] per Stevenson J). 125. Groser v Equity Trustees Ltd (2007) 16 VR 101; [2007] VSC 27; BC200700824 at [82] per Gillard J. Cf Stanley v State Trustees Ltd [2012] VSC 24; BC201200309 (where the absence of a believable explanation for a 5-month delay was held to preclude an extension of time, even in the absence of prejudice, where the plaintiff knew of the limitation period and was unilaterally allowed an additional 3 months to make the application by the defendant, and the claim was a weak one). 126. See, for example, Burton v Moss [2010] NSWSC 163; BC201001566 at [52] per Macready AsJ (involving an 11-year delay: see 17.33); Hadfield v Hadfield [2010] NSWSC 561; BC201003900 at [30] per Rein J. Cf Perrott v Public Trustee [2012] WASC 365; BC201207723 (though in the face of a life estate, that the application for provision was made 30 years out of time led Sanderson M to refuse an extension of time, characterising 30 years as ‘just too long’: at [31]). 127. See, for example, Gilchrist v Equity Trustees Ltd [2011] VSC 107; BC201101526 at [126] per Zammit AsJ. 128. Ansett v Moss [2007] VSCA 161; BC200709233 at [6], [18] per Buchanan JA, with whom Redlich JA and Cavanough AJA agreed. 129. See, for example, Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159; BC200804698; Wheatley v Wheatley [2016] WASC 248; BC201606750. 130. McCann v Ward [2010] VSC 452; BC201007472 at [23] per Dixon J (involving a delay of 14 months). 131. Corbett v State Trustees Ltd [2010] VSC 481; BC201007929 at [71] per Kyrou J (involving a delay of 3 months). See also Groser v Equity Trustees Ltd (2007) 16 VR 101; [2007] VSC 27; BC200700824 at [81] per Gillard J (who therefore opined that ‘[i]n many cases, the explanation for a delay will carry very little weight [in that] more often than not, where a person seeks an indulgence from a court to overcome a period of delay, the explanations are usually the product of some anxious thought in an endeavour to show the delay was innocent or not negligent’). Cf Re Tregear (deceased) [1948] SASR 248 at 249–50 per Reed J (speaking in terms of an applicant ‘showing some ground for the exercise of the power arising from a sufficiently weighty reason for not taking proceedings within the stipulated period’; emphasis supplied). 132. See, for example, McLeod v Radnidge [2009] NSWSC 1105; BC200909391 (3-month delay); Menzies v Marriott [2009] VSC 345; BC200907503 (2-year and 4-month delay); Thompson v Public Trustee of New South Wales [2010] NSWSC 1137; BC201007563 at [125] per Hallen AsJ (11-month delay); McCann v Ward [2010] VSC 452; BC201007472 at [23] per Dixon J (14-month delay); Corbett v State Trustees Ltd [2010] VSC 481; BC201007929 at [71] per Kyrou J; Smith v Public Trustee of the Australian Capital Territory (2012) 6 ACTLR 126; [2012] ACTSC 4; BC201200200 (13-month delay); Vogdanos v Kriaris [2012] VSC 248; BC201204426 (25-day delay). 133. [2009] NSWSC 801; BC200907277. 134. Taylor v Farrugia [2009] NSWSC 801; BC200907277 at [15]. See also Khoury v Public Trustee [2010] NSWSC 475; BC201003152 at [65]–[72] per McLaughlin AsJ (applicant guilty of a 2-year and 7-

135.

136. 137. 138.

139. 140.

141.

142.

143. 144. 145.

146.

month delay ‘was inexperienced and unsophisticated in matters of estates of dead persons’: at [65]); John v John [2010] NSWSC 937; BC201006070 at [42]–[44] per Ward J (applicant guilty of a 9month delay had ‘limited ability to understand’: at [42]). See, for example, Davison v Staley (SC(NSW), Bryson J, 21 August 1986, unreported) BC8600744; Durham v Durham [2010] NSWSC 389; BC201002730 at [16]–[18] per Ball J (aff’d Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62; BC201102298). See, for example, Re Burgess [1984] 2 Qd R 379 at 381–3 per Carter J (involving a delay of some 20 years). Taylor v Farrugia [2009] NSWSC 801; BC200907277 at [23] per Brereton J. See, for example, Coffey v Bennett [1961] VR 264; Neil v Nott (1994) 121 ALR 148; BC9404628 (4month delay); Woodward v Holmes [2009] NSWSC 707; BC200909670 at [17] per Macready AsJ (who factored into the decision to extend time the impact of the applicant’s illness on her decisionmaking ability); Taylor v Farrugia [2009] NSWSC 801; BC200907277 at [22] per Brereton J (where the applicant’s decision not to proceed within time was informed by an inability to fund proceedings without assistance, and a hope that that assistance might be obtained from other siblings, but being unaware that those other siblings had already commenced proceedings); Frey v Frey (2009) 3 ASTLR 470; [2009] QSC 43; BC200901355 at [85] per A Lyons J (serious health issues of the applicant’s son taken into account, together with other matters explaining the delay). See, for example, Neil v Nott (1994) 121 ALR 148; BC9404628 (4-month delay); See, for example, Re Marland (deceased) [1957] VR 338 at 340 per Hudson J (where the applicant was unaware or under a misapprehension of the extent of her own interests under the deceased’s will); Woodward v Holmes [2009] NSWSC 707; BC200909670 at [17] per Macready AsJ (where the applicant was under a misapprehension as to her entitlement under her mother’s will, and once this was clarified further delay was caused mainly by the need to get advice and the effect of illness upon her decision-making ability). See, for example, Walker v Walker [2004] VSC 94; BC200401495 at [13] per Balmford J (where, although the period for bringing an application as of right expired on 4 April 2001, the plaintiff was aware, from 27 March 2001 until the receipt of the letter of 15 November 2002 revoking the concession, that the bringing of an application to extend time would not be opposed). [2003] WASCA 190; BC200304746. See also Dare v Furness (1998) 44 NSWLR 493 at 501; BC9803449 per Cohen J (where it could not be said that the lawyer had acted unreasonably, as he was pursuing attempts to find out more about the estate before taking any further action). Young v Kestel [2003] WASCA 190; BC200304746 at [105], with whom McLure J concurred. Young v Kestel [2003] WASCA 190; BC200304746 at [111], with whom McLure J concurred. Re Guskett (deceased) [1947] VLR 212 at 215 per Herring CJ (adding that the applicant, who had delayed her application for 3 years, ‘had her opportunity and such injustice as she may now consider herself to be suffering is her own doing and not one brought about by the time limit from which she seeks to be relieved’); Maxwell v Public Trustee [2001] NSWSC 764; BC200105254 at [16] per Macready M. [2009] NSWSC 801; BC200907277 at [14]. See, for example, Zirkler v McKinnon [2002] NSWSC 285; BC200201631 (tutor made decision, based on legal advice, not to bring a claim, but experienced a change of heart after another family member succeeded in claiming provision; Macready M refused an extension of time); Henry v Hancock [2016] NSWSC 71; BC201600655 (where the applicant’s 2-year delay, following discovery that she was not, as she had been led to expect, a beneficiary of the deceaed’s will, was found to be explainable only by reference to having changed her mind relating to making any family provision claim: at [53]–[56] per Brereton J).

147. [2000] TASSC 21; BC200005125. 148. Lazenby v McDermott [2000] TASSC 21; BC200005125 at [27]. 149. See, for example, Re Lauer [1984] VR 180 (where the delay over many years was attributable partly to a drastic reversal of the applicant’s financial position and partly to the post-death increase in value of the major asset in the estate); Gilchrist v Equity Trustees Ltd [2011] VSC 107; BC201101526 (involving a delay of 23 years, where Zammit AsJ discerned ‘the real incentive’ that led to the application as the change in the applicant’s circumstances brought about by his domestic situation since 1987, the recent decline in his health and his changed financial circumstances, but held that ‘[w]hile these are not trivial matters, they do not provide an adequate explanation for the delay in making a claim’: at [116]). Cf Bearnes v Bearnes-Hayes (SC(NSW), Young J, 7 May 1997, unreported) BC9702186 (who refused an application to extend time where the applicant was 16 months out of time, knew of the contents of the will, did not obtain legal advice as to whether she could make any claim against the estate, but was content with her own financial circumstances at the time; it was only after the limitation period expired that relations between her and the executrix soured; Young J held that such changes in circumstances were not enough to warrant an extension of time). 150. See, for example, Ng v Morgan [2014] NSWSC 536; BC201403319 (where the applicant’s decision not to proceed with the claim had been completely overborne by the fears engendered by the deceased, so that she ‘did not make a genuinely free decision not to pursue a claim’: at [164] per Slattery J). 151. [2010] NSWSC 163; BC201001566. 152. (SC(NSW), Young J, 25 March 1998, unreported) BC8802091 at 7. See, for example, Turnley v Swaab [1999] NSWSC 594; BC9903394; Wilkinson v Wilkinson [2002] NSWSC 175; BC200208451. 153. [1981] Ch 170 at 176. 154. Kalmar v Kalmar [2006] NSWSC 437; BC200603643 at [20] per White J. 155. See 17.43. 156. Grigoriou v Nitsos [1999] WASCA 42; BC9903115 at [29] per Ipp J; Kalmar v Kalmar [2006] NSWSC 437; BC200603643 at [22] per White J. 157. See, for example, Simons v Permanent Trustee Co Ltd [2005] NSWSC 223; BC200501471 at [19] per Palmer J (time extended in view of absence of prejudice, and no unconscionable conduct); Enoch v Public Trustee of Queensland [2006] 1 Qd R 144; [2005] QSC 194; BC200505050 at [9] per Wilson J (who found ‘quite strong’ prospects of success, and an absence of prejudice because the estate was yet to be distributed); Gibson v Haselgrove [2009] NSWSC 496; BC200905275 at [34], [35] per Ward J (who found no suggestion of prejudice and a prima facie strong case); Mortimer v Lusink [2017] QCA 1; BC201000274 (time extended where the applicant was not dilatory but delayed briefly by reason of her solicitor’s mistake as to the time limit, absent any real evidence of prejudice to the defendants). 158. See Dare v Furness (1998) 44 NSWLR 493 at 500–1; BC9803449 per Cohen J (where the infant applicant, through his mother, had acted promptly in seeking legal assistance and was entitled to assume that the lawyer would take all proper steps); Marshall v Public Trustee [2006] NSWSC 402; BC200603402 at [21] per Macready AsJ (where the plaintiff was ‘given a complete run-around’ by his lawyer); Pilton v Pilton [2008] WASC 303; BC200811526 at [29] per Sanderson M (noting the importance of proactive steps taken by applicants personally to advance their claim, as opposed to sitting idly by and letting any claim they might have linger). 159. [1981] Ch 170 at 175. 160. See, for example, Amos v Amos [1966] VR 442 (where because ‘the applicant and the other members of the family were engaged in negotiations for an arrangement among themselves which would control the realization and distribution of the assets of the estate’ and ‘the applicant had reasonable

161. 162. 163.

164.

165. 166. 167.

grounds for hoping that these negotiations would result in an agreement from which he would derive substantial advantages’, it was reasonable for him to delay the commencement of proceeding ‘so long as there was a fair possibility that such an agreement would emerge’: at 443 per Lush J); Walker v Walker [2004] VSC 94; BC200401495 at [15]–[18] per Balmford J (where negotiations between the parties continued during the whole of the relevant period, it being ‘possible to infer that the plaintiff had some expectation that the issues would be resolved by those negotiations, without the necessity for litigation between members of the family’, and ‘[t]he fact that there was no distribution of the estate during that period would be likely to support such an expectation’: at [15]); Frey v Frey (2009) 3 ASTLR 470; [2009] QSC 43; BC200901355 (where there were negotiations throughout from 2004 until early 2007 in relation to the details of the deed of partnership to be formed, and mediations were held to try to resolve the impasse in August 2006 and January 2008: at [81] per A Lyons J); Izydorski v Rimmer [2010] WASC 175; BC201005195 at [29] per E M Heenan J (where arrangements to proceed with the deed of family arrangement ultimately collapsed). Cf Wheatley v Wheatley [2016] WASC 248; BC201606750 (where the occurrence of negotiations were not found, on the facts, to have inclined the plaintiff against commencing proceedings, and when coupled with a 7-year delay and an estate that had been distributed years earlier, led Sanderson M to refuse an extension of time: at [18]–[21]). See, for example, Re Guskett [1947] VLR 212 at 214–15 per Herring CJ; Re Barrot (deceased) [1953] VLR 308 at 312 per Sholl J; Nenke v Nunn [1967] WAR 79 at 80 per Virtue J. See 17.23, 17.24. Groser v Equity Trustees Ltd (2007) 16 VR 101; [2007] VSC 27; BC200700824 at [38] per Gillard J. See also Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159; BC200804698 at [77] per Muir JA (‘it may be that the finding of a strong case would influence the exercise of discretion in the applicants’ favour more than would a finding that the case was marginal at best’). Thompson v Public Trustee of New South Wales [2010] NSWSC 1137; BC201007563 at [130] per Hallen AsJ. In Re Terlier [1959] QWN 5 at 6 Townley J remarked that, if it is ‘improbable’ that the substantive application would succeed, ‘it seems idle to grant the extension’. Although accepted at face value by Balmford J in Walker v Walker [2004] VSC 94; BC200401495 at [24], others have understood the use of the word ‘improbable’, in the context in which it was used, to have been intended to mean that the application was bound to fail: Re Walker (deceased) [1967] VR 890 at 892 per Lush J; Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159; BC200804698 at [33] per Keane JA (‘even on the best view of the evidence for [the applicant], it was distinctly improbable that his substantive application would ultimately succeed’), at [217] per Fraser JA. See also Warren v McKnight (1996) 40 NSWLR 390 at 395; BC9604176 per Hodgson J (‘so weak that it would be pointless … to go to a full hearing on the merits’); Andre v Perpetual Trustees WA Ltd [2009] WASCA 14; BC200900074 at [42] per Steytler P, with whom Pullin and Buss JJA concurred (‘if there is no arguable case on the merits, the application will be doomed from the outset and the justice of the case will not require that there be a grant of leave’). Erlich v Fleiszig [2013] VSC 63; BC201300824 at [38] per Lansdowne AsJ. See, for example, Craig v Craig [2015] WASC 109; BC201502098. [2009] 1 Qd R 409; [2008] QCA 159; BC200804698 at [35] (adding that ‘a court should not exercise the discretion [to extend time] to facilitate the pursuit of a stale claim on the basis that a negotiated settlement might ensue’: at [37]). Warren v McKnight (1996) 40 NSWLR 390 at 395–6; BC9604176 per Hodgson J; Ashhurst v Moss (2006) 14 VR 291; [2006] VSC 287; BC200605895 at [109]–[111] per Hansen J; Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159; BC200804698 at [219] per Fraser JA (‘proof of a good claim

168. 169.

170. 171. 172.

173. 174.

175.

176. 177. 178. 179.

is of itself insufficient to justify an extension of time. Limitation periods catch good and bad claims alike’); Andre v Perpetual Trustees WA Ltd [2009] WASCA 14; BC200900074 at [42] per Steytler P, with whom Pullin and Buss JJA concurred. Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159; BC200804698 at [31], [32] per Keane JA. Re Walker (deceased) [1967] VR 890 at 892 per Lush J; Re McPhail (deceased) [1971] VR 534 at 548 per Gowans J; Re Lauer (deceased) [1984] VR 180 at 185–6 per Young CJ; Clayton v Aust (1993) 9 WAR 364 at 367–8 per Malcolm CJ; Young v Kestel [2003] WASCA 190; BC200304746 at [79] per Heenan J; Borg v Hawke [2004] VSC 279; BC200405186 at [31] per Cummins J; Ashhurst v Moss (2006) 14 VR 291; [2006] VSC 287; BC200605895 at [110], [111] per Hansen J; Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159; BC200804698 at [77] per Keane JA, at [217] per Fraser JA; Day v Raudino [2009] VSC 463; BC200909367 at [23] per Kaye J; McCann v Ward [2010] VSC 452; BC201007472 at [11] per Dixon J; Izydorski v Rimmer [2010] WASC 175; BC201005195 at [6] per E M Heenan J. The view expressed in Phillips v Quinton (SC(NSW), Powell J, 31 March 1988, unreported) BC8802070 at 13 that an applicant seeking an extension of time must demonstrate at least ‘a strong probability’ of obtaining substantive relief cannot be considered correct, and was rejected in Basto v Basto (SC(NSW), Hodgson J, 8 September 1989, unreported) BC8901738 at 6–8. Cf De Winter v Johnstone (CA(NSW), Sheller, Powell and Cole JJA, 23 August 1995, unreported) BC9505226 at 6 per Sheller JA (inquiry whether the application was bound to fail), at 23 per Powell JA (who repeated his earlier views). Frey v Frey (2009) 3 ASTLR 470; [2009] QSC 43; BC200901355 at [122] per A Lyons J. Re Dennis (deceased) [1981] 2 All ER 140 at 145 per Browne-Wilkinson J. See, for example, Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159; BC200804698 at [77] per Muir JA; Triplett v Public Trustee [2009] WASC 64; BC200901802 at [14] per Sanderson M; Izydorski v Rimmer [2010] WASC 175; BC201005195 at [6] per E M Heenan J. Groser v Equity Trustees Ltd (2007) 16 VR 101; [2007] VSC 27; BC200700824 at [28] per Gillard J. See, for example, John v John [2010] NSWSC 937; BC201006070 at [47] per Ward J (where there was no evidence that the beneficiaries had taken any particular course, or done anything to alter their position, on an assumption that no family provision claim was being made, so that ‘[f]rom a practical perspective, the [beneficiaries] have not had the benefit of ownership of the property since the estate was distributed’); Thompson v Public Trustee of New South Wales [2010] NSWSC 1137; BC201007563 at [128] per Hallen AsJ (who was satisfied that the deceased’s daughter and the remainder beneficiaries would not be unacceptably prejudiced were time extended, as the applicant made no claim in respect of moneys distributed to the deceased’s daughter, and the property over which the claim was made had been retained in the estate, the daughter living in it). John v John [2010] NSWSC 937; BC201006070 at [46] per Ward J. See, for example, Burton v Moss [2010] NSWSC 163; BC201001566 at [39] per Macready AsJ (‘Apart from the fact that the beneficiary is now at risk of losing its bequest there is no evidence to suggest that the beneficiary has altered its position in the expectation of receiving the bequest’); McCann v Ward [2010] VSC 452; BC201007472 (where Dixon J ruled that ‘prejudice’ to the beneficiaries from an extension of time, stemming from the residuary estate consisting largely of shares in a family company rather than assets more readily available for realisation, was not relevant prejudice because it did not arise because of the delay). See 17.43. Groser v Equity Trustees Ltd (2007) 16 VR 101; [2007] VSC 27; BC200700824 at [28] per Gillard J. Erlich v Fleiszig [2013] VSC 63; BC201300824 at [25] per Lansdowne AsJ. (1998) 44 NSWLR 493 at 500; BC9803449.

180. 181. 182. 183. 184.

185. 186. 187. 188. 189.

190. 191.

192. 193.

194. 195.

196. 197. 198.

Dare v Furness (1998) 44 NSWLR 493 at 502; BC9803449. See 17.34, 17.35. [2002] NSWSC 285; BC200201631. Zirkler v McKinnon [2002] NSWSC 285; BC200201631 at [36]. See, for example, Lewis v Lewis [2001] NSWSC 321; BC200101939 at [82] per Hodgson J; Taylor v Farrugia [2009] NSWSC 801; BC200907277 at [14] per Brereton J; Thompson v Public Trustee of New South Wales [2010] NSWSC 1137; BC201007563 at [127] per Hallen AsJ. De Winter v Johnstone (CA(NSW), Sheller, Powell and Cole JJA, 23 August 1995, unreported) BC9505226 at 11 per Sheller JA. Taylor v Farrugia [2009] NSWSC 801; BC200907277 at [14] per Brereton J. See 17.30. See 17.30. See, for example, Stone v Stone [2016] NSWSC 605; BC201603499 (where the plaintiff obtained the defendant’s agreement to a 14-day extension of time while efforts were made to engage the defendant in negotiations without commencing formal court proceedings, Brereton J ruled that ‘a defendant’s representation that an extension will be permitted that is relied on by the plaintiff may well constitute “sufficient cause” for not applying within time’; his Honour found no ‘unconscionable conduct’ on the part of the plaintiff, and that instead ‘the only such conduct has been the defendant’s departure from the representation that an extension of time would be permitted’: at [39]). ACT s 9(4); NT s 9(4); SA s 8(4); Tas s 11(4); Vic s 99(3) (before 1 January 2015, Vic s 99). As a claim for provision is one created by the legislature, in which parliament has stipulated a limitation period and an avenue to extend time, there remains no scope for the doctrine of fraudulent concealment whether in equity or by analogy to general limitations legislation. In this regard, the family provision legislation ‘reflects the balance being struck between the efficient administration and distribution of estates on the one hand, and discretionary reallocations in recognition of moral duties on the other’, and to allow ‘an open-ended discoverability regime, even if it is only in the context of fraudulent concealment, would seriously undermine this balance’: Re Stewart [2004] 1 NZLR 354 at [22] per Blanchard J (CA). Groser v Equity Trustees Ltd (2007) 16 VR 101; [2007] VSC 27; BC200700824 at [27] per Gillard J. Blunden v Blunden (2008) 258 LSJS 206; [2008] SASC 286; BC200809761 at [18], [19] per Bleby J; Bennett v Bennett [2012] VSC 234; BC201206035; Younan v Younan (No 2) [2015] VSC 549; BC201509769 at [24]–[27] per Bell J (though remarking that the fact that the legislation treats the fact of that distribution as a jurisdictional bar in respect of applications for extension of time by prospective applicants, including ‘those who may be elderly, do not have a copy of the will, have little knowledge of the estate and live out of the jurisdiction’, ‘really does need attention’: at [26]). ACT s 20; NT s 20. SA s 8(5) (see Dawson v Fitch (2002) 84 SASR 20; [2002] SASC 12; BC200205725 at [29], [30] per Lander J); Tas s 11(4); Vic s 99(4) (before 1 January 2015, Vic s 99) (see Re Barrot [1953] VLR 308 at 312 per Sholl J, who remarked that ‘if the extension is granted, no antecedent distribution is to be disturbed — which means that the rights of some beneficiaries may have become conclusively indefeasible and beyond the possibility of adjustment’). Re Salmon (deceased) [1981] Ch 170 at 176 per Megarry VC. See 20.40 (NSW), 20.41–20.43 (WA). See In the Will of Lanfear (deceased) (1940) 57 WN (NSW) 181 at 183 per Williams J (who phrased the duty in terms of placing ‘all the relevant evidence before the court relating, not only to the case generally, but to any particular circumstances which the court should take into consideration

199.

200.

201. 202. 203. 204. 205. 206. 207. 208.

relating to any particular gift in the will’), a passage approved in Re S J Hall (deceased) (1958) 59 SR (NSW) 219 at 226 per the court; Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503 per Hardie JA; Dijkhuijs v Barclay (1988) 13 NSWLR 639 at 654 per Kirby P, with whom Hope and Mahoney JJA agreed; Official Trustee in Bankruptcy v Frangos (CA(Vic), 7 July 1995, unreported) at 8–9 per Ormiston JA, with whom Charles JA concurred. See also Tas s 6(b); Vic s 94(b) (which empowers the court to require the executor or administrator to furnish full particulars of the estate). Warren v McKnight (1996) 40 NSWLR 390 at 395–6; BC9604176 per Hodgson J (opining that ‘[i]f it were thought that the executor had a duty to bring forward evidence supporting the plaintiff’s case, then … the principle that normally beneficiaries should be excluded from taking an adversary role in the proceedings would be very seriously undermined’). Cf Collett v Knox [2010] QSC 132; BC201003226 at [179] per McMeekin J (whose description of the executor’s duty as extending to placing all relevant evidence before the court, ‘both positive and negative’, arguably goes too far); Family Protection Act 1955 (NZ) s 11A (which requires the administrator to place before the court ‘all relevant information in his possession concerning the financial affairs of the estate and the deceased’s reasons for making the dispositions made by his will or for not making any provision or any further provision, as the case may be, for any person’, but adds that this duty does not extend ‘to require the administrator to place any such information before the Court if it is known to him by reason only of its having come to his knowledge in circumstances which impose an obligation, whether legal or moral, on the administrator not to disclose it, and its disclosure in connection with any application under this Act would be a breach of that obligation’). In the Will of Lanfear (deceased) (1940) 57 WN (NSW) 181 at 183 per Williams J; Collett v Knox [2010] QSC 132; BC201003226 at [167] per McMeekin J. Underscoring this is the fact that executors owe a fiduciary duty to which they must have regard in conducting litigation affecting the estate, whereas beneficiaries do not: Underwood v Sheppard [2010] QCA 76; BC201003307 at [16] per Holmes JA, with whom Fraser JA and P Lyons J concurred. See Jacobs, pp 516–19. See 13.40. Application of Scali [2010] NSWSC 1254; BC201008000 at [10] per Brereton J. See also Szlazko v Travini [2004] NSWSC 610; BC200404329 at [11] per Young CJ in Eq. As to these circumstances, see 23.25–23.27. As to executors’ right to seek the advice and directions of the court, and the parameters of this right, see 13.34–13.39. [2010] NSWSC 1254; BC201008000 at [17]. Collett v Knox [2010] QSC 132; BC201003226 at [181] per McMeekin J. As to the relevant limitation periods, see 17.22. Indeed, in some Canadian jurisdictions this is prescribed by statute, which states that until the expiry of the statutory limitation period, the executor must not distribute any portion of the estate to beneficiaries under the will except: (a) with the consent of all persons who would be entitled to apply; or (b) if authorised by order of the court. See Wills and Succession Act 2010 (Alta) s 106 (which adds that a personal representative who distributes any portion of an estate in contravention of this proscription is personally liable to pay an amount equal to any maintenance and support that is payable under a family provision order and that ought to be paid out of the portion of the estate distributed; it does not, however, prevent a personal representative from making reasonable advances for the maintenance of any family members who are beneficiaries); Wills, Estates and Succession Act 2009 (BC) s 155; Testators’ Family Maintenance Act 1989 (NS) s 9 (similar to Alberta); Dependants’ Relief Act 1996 (Sask) s 17 (similar to Alberta). Cf Succession Law Reform Act 1990 (Ont) s 67 (where equivalent provision is made upon notice of a family provision application being served on the executor).

209. Blunden v Blunden (2008) 258 LSJS 206; [2008] SASC 286; BC200809761 at [20] per Bleby J; Collett v Knox [2010] QSC 132; BC201003226 at [165] per McMeekin J. As to extensions of time to apply for provision, see 17.23–17.44. 210. [1950] Ch 38 at 42–3. See also Guardian Trust and Executors Co of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115 at 127 per Lord Romer (PC) (‘if a trustee or other person in a fiduciary capacity has received notice that a fund in his possession is, or may be, claimed by A, he will be liable to A if he deals with the fund in disregard of that notice should the claim subsequently prove to be well founded’); Re Gimblett [1960] NZLR 664 at 666 per McGregor J; Re Faulkner [1999] 2 Qd R 49 at 53; BC9606628 per Moynihan J; Ernst v Mowbray [2004] NSWSC 1140; BC200408563 at [59]–[64] per Young CJ in Eq; Blunden v Blunden (2008) 258 LSJS 206; [2008] SASC 286; BC200809761 at [23], [24] per Bleby J; Hillman v Box (2010) 5 ACTLR 122; [2010] ACTSC 153; BC201009296 at [37], [38] per Refshauge J; AB v RT [2015] NZHC 3174; BC201564220 at [105]– [112] per Brown J (speaking in terms of a duty of ‘even-handedness’ capable of extending to persons whose claims the personal representative ought to have been aware; cf Robbins v Hume [2015] VSC 128; BC201502430 at [48]–[65] per McMillan J). 211. This outcome has been criticised for its capacity to promote avoidance of responsibility: Younan v Younan (No 2) [2015] VSC 549; BC201509769 at [24] per Bell J; Vickers v Pickering [2016] QDC 58 at [39] per McGill SC DCJ. The issue can, at least partly, be addressed by notional estate provisions, which only exist in New South Wales to date: see 20.58–20.78. 212. Blunden v Blunden (2008) 258 LSJS 206; [2008] SASC 286; BC200809761 at [23] per Bleby J (referring to A Dickey, Family Provision After Death, Law Book Co Ltd, Sydney, 1992, pp 178–9); Hillman v Box (2010) 5 ACTLR 122; [2010] ACTSC 153; BC201009296 at [38] per Refshauge J. 213. Cann v Saleeba [2014] WASC 299; BC201406745 at [15], [22] per Sanderson M; Mead v Lemon [2015] WASC 71; BC201500874 at [7] per Sanderson M (where the executor appeared to have ignored the rule of practice, presumably he believed the estate was so large (more than $400m) that any distribution would not affect the capacity of the estate to meet any award; the Master remarked that ‘no exception exists for large estates’, adding that ‘[i]f the executor is of the view further distribution would be appropriate and there was no risk of any award made to a party not being met he should seek the appropriate directions from the court under the provisions of the Trustees Act 1962 (WA)’). 214. See, for example, Estate of Gough (deceased) (1973) 5 SASR 559 at 565 per Zelling J (who granted an injunction restraining the executor from selling a portion of the real property comprised in the estate to enable payment out of the proceeds of sale of estate duty and other charges); Massie v Laundy (SC(NSW), Young J, 7 February 1986, unreported) BC8601246 (where the executor proposed to continue with an auction to sell a portion of the realty in the estate, Young J granted an injunction on the basis that the court had power, at the suit of a claimant whose case was not hopeless, to preserve the estate so that the court could deal with the application according to law); Packo v Packo (1989) 17 NSWLR 316; Moon v Gordon (SC(NSW), Young J, 30 April 1996, unreported) BC9601411; Public Trustee v Bebich [2014] WASC 340; BC201407922 at [19] per Le Miere J (who restrained, pending the resolution of a family provision claim, the sale or charging of real property that the executor (P) had transferred to himself and his brother whilst knowing of a family provision claim by his sister: at [35]). Cf Hillman v Box (2010) 5 ACTLR 122; [2010] ACTSC 153; BC201009296 at [39] per Refshauge J (who, though accepting that the court may grant an injunction to restrain distribution in an appropriate case, as on the facts there was no present threat to distribute, it was not an appropriate case for injunctive relief on this ground). Decisions going the other way, reasoned on the basis that the court lacks jurisdiction to prevent an executor from

215. 216. 217. 218. 219. 220. 221.

222. 223. 224. 225. 226. 227.

228. 229. 230. 231.

232. 233. 234.

carrying out the terms of the will once probate has been granted (see, for example, Re Ralphs (deceased) [1968] 3 All ER 285; Deguara v Mercieca (SC(NSW), Powell J, 23 August 1988, unreported) BC8801578), are outweighed by contrary authority. There is no room for diversity of opinion in several Canadian jurisdictions, where the relevant legislation expressly empowers the court to make an order suspending the administration of the estate: see Wills and Succession Act 2010 (Alta) s 94; Wills, Estates and Succession Act 2009 (BC) s 66; Provision for Dependants Act 2012 (NB) s 3; Testators’ Family Maintenance Act 1989 (NS) s 3(2); Succession Law Reform Act 1990 (Ont) s 59. ACT s 21; NT s 21. Namely notices pursuant to Administration and Probate Act 1929 (ACT) s 64; Administration and Probate Act 1969 (NT) s 96: see 14.53. In the legislation referred to as the ‘legal representative’ of the estate, being defined as the person to whom administration is granted: NSW s 55(2). NSW s 93(1) (similar to the former NSW 1982 s 35(1)). For this purpose, notice to the administrator of an (intended) application must be in writing signed in accordance with rules for the signing of documents by a party in proceedings under the Uniform Civil Procedure Rules 2005 (NSW) r 4.4: NSW s 93(3). Namely the form approved under s 17 of the Civil Procedure Act 2005 (NSW). NSW s 93(2) (similar to the former NSW 1982 s 35(2)). The legislation adds that no order for provision may be made in relation to property that has been so distributed, except in relation to property that is designated as notional estate of the deceased by a court order: NSW s 63(3), (5). As to orders designating distributed property as notional estate, see 20.64–20.73. NSW s 94(4), (5). NSW s 58(2): see 17.22. NSW s 94(2). The legislation uses the term ‘personal representative’, which it defines to mean the executor, original or by representation, or administrator of a deceased person: Qld s 5. Qld s 41(8): see 17.22. For this purpose, notice to an administrator of an (intended) application must be in writing signed by the applicant or the applicant’s lawyer: Qld s 44(4). But this does not prevent the subsequent making of an application within any other period allowed by or pursuant to the legislation: Qld s 44(5). Qld s 44(3). Qld s 44(1). As to the notional estate provisions, see 20.58–20.78. See, for example, Vickers v Pickering [2016] QDC 58 at [32]–[36] per McGill SC DCJ. His Honour also opined that ‘it must be at least fairly arguable that a distribution as soon as the nine month period has expired is not one “properly made”, so as to protect an executor from personal liability’ (at [31]), but it may be queried why this should be so. Otherwise, it could undermine the object of time provisions in this context. Vic s 99A(1); WA s 11. The Victorian legislation uses the term ‘personal representative’, which it defines to mean the executor original or by representation or administrator for the time being of a deceased person: Vic s 90. Vic s 99A(3); WA s 20(1). The Western Australian legislation adds, superfluously it appears, that no action by any person whose relationship to the deceased is not determined through lawful wedlock or adoption lies against the administrator by reason of the latter having prejudiced any claim of that person for provision by distributing any part of any estate if the distribution was made without

235. 236. 237. 238. 239.

240. 241. 242.

243. 244. 245. 246.

247. 248.

249. 250. 251. 252. 253.

254. 255.

notice of any (intended) application by that person in respect of that estate: WA s 20(3). WA s 20(2). SA s 14(1). See 17.48, 17.49. SA s 14(2). Vic s 99A(4) (except that lapsing occurs unless an application for a family provision order has been made to the court); WA s 20(5) (which, however, supplies an alternative time frame, namely before the sooner expiration of 12 months from the date on which the administrator became entitled to administer the estate). NSW s 94(3); Qld s 44(2); Vic s 99A(2); WA s 20(4). QLRC, Report 58, July 2004, p 46. Singer v Berghouse (1994) 181 CLR 201 at 208–11 per Mason CJ, Deane and McHugh JJ, at 219–20 per Toohey J (dissenting on the outcome but not on this point); BC9404642. The suggestion by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308; BC201207749 at [26]– [42] that the two-stage test has not survived the (slightly) varied language of the Succession Act 2006 (NSW) (as compared to its predecessor) has received little genuine endorsement: Andrew v Andrew at [6] per Allsop P, at [94]–[103] per Barrett JA; Re Estate of Kalidis [2012] NSWSC 1485; BC201209835 at [200] per Hallen J; Nowak v Beska [2013] NSWSC 166; BC201301067 at [113] per Hallen J; Gardiner v Gardiner [2014] NSWSC 435; BC201403295 at [117]–[120], [124] per Robb J; Sadiq v NSW Trustee & Guardian [2015] NSWSC 716; BC201504868 at [296] per Hallen J (aff’d Sadiq v NSW Trustee & Guardian [2016] NSWCA 62; BC201602224). See 17.59–17.82. See generally Chapter 16. Vic s 91 (as it read before 1 January 2015). Schmidt v Watkins [2002] VSC 273; BC200204063 at [8] per Harper J; de Angelis v de Angelis [2003] VSC 432; BC200308497 at [38]–[40] per Dodds-Streeton J; Unger v Sanchez [2009] VSC 541; BC200910756 at [60] per Kaye J. See 19.3–19.5. (1994) 181 CLR 201 at 209–10; BC9404642 (paragraph break omitted). See also Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [122] per Callinan and Heydon JJ (‘We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two’); Savic v Kim [2010] NSWSC 1401; BC201009735 at [55]–[58] per Hallen AsJ. ACT s 8(1); NT s 8(1). Qld s 41(1); SA s 7(1); Tas s 3(1); WA s 6(1). NSW s 59(2). The Victorian statute simply adopts the classic language of discretion by stating that the court ‘may’ order that provision be made: Vic s 91(1). Qld s 41(2)(a); SA s 7(4); Tas s 3(2); Vic s 96(2). An example of a condition or restriction is contained in the Victorian provision, which envisages a condition or restriction, inter alia, ‘to prevent restrict or defeat any alienation or charge of or upon the benefit of any provision made under such order’: Vic s 96(2). That courts outside Victoria routinely impose conditions or restrictions on orders for provision in favour of, say, applicants with spendthrift tendencies (see generally 20.20–20.25), highlights again that no gloss or reading down of the broad terms of the statutory discretion is justified. NT s 8(1); Tas s 3(1). ACT s 8(3) (see 19.3); NSW s 60(2) (see 19.4); Vic s 91A(2) (before 1 January 2015, Vic s 91(4), which was expressed in the imperative) (see 19.5).

256. 257. 258. 259. 260.

261. 262.

263. 264. 265.

266. 267. 268.

269. 270. 271. 272. 273. 274. 275.

276. 277. 278.

ACT s 8(3)(k); NSW s 60(2)(p); Vic s 91A(2)(m) (before 1 January 2015, Vic s 91(4)(p)). ACT s 8(2); NSW s 59(1)(c); NT s 8(1); SA s 7(1). Qld s 41(1); Tas s 3(1); Vic s 91(1), (2) (before 1 January 2015, Vic s 91(3)). WA s 6(1). Cf the corresponding English legislation, which has departed from the ‘adequate’ and ‘proper’ language, and in its place adopted the phrase ‘reasonable financial provision’, which it defines as ‘such financial provision as it would be reasonable in all the circumstances of the case’ for the applicant to receive for his or her maintenance: Inheritance (Provision for Family and Dependants) Act 1975 (UK) s 1(1), (2). See 17.76. The statement by Cole JA in Wentworth v Wentworth (1995) 37 NSWLR 703 at 736; BC9505254 that the court considers the question of adequacy ‘only in a qualitative rather than a quantitative sense’ must be viewed in its context, namely in terms of whether the provision previously made is inadequate when compared with proper maintenance etc, and as an attempt to dispel any notion that there is a set (empirical) standard of adequacy (see 17.67). See 17.67–17.75 (quantitative criteria), 17.76 (qualitative criteria). See 17.77–17.80. See Laird v Laird (1903) 5 GLR 466 at 467 (‘natural duty’); Plimmer v Plimmer (1906) 9 GLR 10 at 24 (‘moral duty’); Allardice v Allardice (1910) 29 NZLR 959 at 973 (referring to whether ‘the testator has been guilty of a manifest breach of that moral duty which a just, but not a loving, husband or father owes towards his wife or towards his children, as the case may be’). See also Rowe v Lewis (1907) 26 NZLR 769 at 772 per Chapman J (who referred to ‘the duty, morally speaking’ of the testator); Re Allen (deceased) (1921) 41 NZLR 218 at 220–1 per Salmond J (‘The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances’). That moral considerations enter into the relevant inquiry also saw early judicial recognition in Canada: see Walker v McDermott [1931] SCR 94 at 96 per Duff J. Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [11]. See also Unger v Sanchez [2009] VSC 541; BC200910756 at [67] per Kaye J. See 15.4. Banks v Goodfellow (1870) 5 LR QB 549 at 563 per Cockburn CJ, delivering the judgment of the court. See also Re Davies [2014] VSC 248; BC201406549 at [100] per McMillan J (who described family provision legislation as sitting ‘somewhere between the realms of legal liability and moral liability’). Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [25]. Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [121]. Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [114]. Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [115]. WA s 6(3). There are parallel provisions in other jurisdictions: see 19.9. Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [116]. (1991) 23 NSWLR 559 at 569, with whom Mahoney and Meagher JJA concurred. See also Re Fullard (deceased) [1982] Fam 42 at 47 per Ormrod LJ (‘Once one introduces the word “ought”, one inevitably introduces in some way or other some moral question’). At the time, NSW 1982 s 7; now NSW s 59(2). See 19.9–19.27. Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [116] per Callinan and Heydon JJ.

279. Being the commencement date of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic). 280. Vic s 91(2)(c). 281. Vic s 91(1) (in its pre-1 January 2015 form; emphasis supplied). 282. Coombes v Ward [2004] VSCA 51; BC200401682 at [12] per Chernov JA; Blair v Blair (2004) 10 VR 69; [2004] VSCA 149; BC200405494 at [13] per Chernov JA, with whom Hansen JA agreed, at [41] per Nettle JA. See also de Angelis v de Angelis [2003] VSC 432; BC200308497 at [33] per DoddsStreeton J; Bentley v Brennan [2006] VSC 113; BC200602728 at [21] per Byrne J. 283. Coombes v Ward [2004] VSCA 51; BC200401682 at [7] per Winneke P, at [12], [13] per Chernov JA (the criteria being listed in Vic s 91(4)(e)–(p); as from 1 January 2015, in Vic s 91A(2)(a)–(m)): see 19.5). See also Blair v Blair (2004) 10 VR 69; [2004] VSCA 149; BC200405494 at [13] per Chernov JA, with whom Nettle JA and Hansen AJA concurred. 284. [1999] 3 VR 803 at 819; BC9502481. 285. Jackson v Newns [2011] VSC 32; BC201100505 at [52] per Mukhtar AsJ. See 17.79. 286. Vic s 91(4)(p) (as from 1 January 2014, now Vic s 91A(2)(m)). 287. Blair v Blair (2004) 10 VR 69; [2004] VSCA 149; BC200405494 at [13] per Chernov JA, with whom Hansen JA agreed, at [41] per Nettle JA. 288. See the views expressed in V Grainer, ‘Is Family Protection a Question of Moral Duty?’ (1994) 24 VUWLR 141. 289. (1994) 181 CLR 201 at 209; BC9404642, referring to Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 158; BC7900037; Goodman v Windeyer (1980) 144 CLR 490 at 504–5; BC8000095, both obiter remarks of Murphy J. 290. Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 522; BC5600470. See also at 512 per Williams J. 291. Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 29; BC9507161 per Kirby P. 292. Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [73]. 293. Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 29 per Kirby P, at 46 per Sheller JA. Contra per Handley JA. 294. Grey v Harrison [1997] 2 VR 359 at 365; BC9606012. See also at 360–1 per Tadgell JA, at 361 per Charles JA; Collicoat v McMillan [1999] 3 VR 803 at 815; BC9502481 per Ormiston J. 295. Jackson v Newns [2011] VSC 32; BC201100505 at [46] per Mukhtar AsJ. 296. Hope v Tasmanian Perpetual Trustees Ltd [2006] TASSC 13; BC200601124 at [18] per Underwood CJ. 297. Cf Hope v Tasmanian Perpetual Trustees Ltd [2006] TASSC 13; BC200601124 at [18] per Underwood CJ (‘the word “moral” … is a word that helps elucidate the statutory purpose of the legislation’). 298. See Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 523; BC5600470 per Fullagar J (‘I do not think, generally speaking, that the courts, when they have referred to ‘moral duty’, have really intended to do more than suggest that the court ought to do what it is to be supposed that the testator would have done if he had known and properly appreciated all the circumstances of the case’); Nicholls v Hall (2007) 2 ASTLR 419; [2007] NSWCA 356; BC200710898 at [42] per the court (‘a finding that an applicant has been left without ‘adequate provision’ for ‘proper maintenance’ does not necessarily mean that the deceased failed in any obligation; although it can loosely be expressed in terms that there was a moral claim that, in the event, was not met’). 299. Cf Nicholls v Hall (2007) 2 ASTLR 419; [2007] NSWCA 356; BC200710898 at [40] (where the court noted that the concept of ‘moral duty’ can be misleading for at least two reasons: (1) because any moral obligation is determined by reference to the ‘wise and just’ testator aware of all the

300. 301.

302. 303. 304. 305.

306.

307.

308. 309. 310.

311.

relevant circumstances (see 17.77, 17.78), ‘even if, on the basis of circumstances known to the deceased, there was no non-compliance with any moral duty or obligation, a claim may still succeed’ (emphasis supplied); and (2) as the question posed by the legislation is to be decided having regard to facts as they exist at the time of the hearing rather than at the time of death (see 17.80–17.82), if, for example, a financial or health catastrophe occurs between the date of death and the hearing, ‘a claim may succeed where on no view was there any non-compliance with any moral obligation of the deceased’; in these instances, relying on the concept of ‘moral duty’ is amenable to generating an outcome potentially different to one independent of moral duty only if the concept is understood, incorrectly according to the case law, from the testator’s subjective perspective as at the date of death). See 17.70–17.75. Klemke v Lustig [2010] VSC 502; BC201008404 at [53] per Hargrave J. See also Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [13] per Gleeson CJ. See, for example, Auckland City Mission v Brown [2002] 2 NZLR 650 (where the applicant’s provision was increased in view of the large size of her late father’s estate, but only to about 20 per cent of that estate, leaving the remainder for the deceased’s stated charitable objects; in so ruling, Richardson P (at [41]), who delivered the judgment of the court, endorsed the observation of Reed J in Pulleng v Public Trustee [1922] NZLR 1022 at 1029 that ‘[a] bequest to charity is very fitting in the case of a testator who has ample means and can make such bequest without inflicting hardship on his own family’). Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235; BC200709485 at [72], [77] per Buss JA. Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476 per Lord Romer (PC); White v Muldoon [2006] VSC 204; BC200604085 at [58] per Hollingworth J. See 19.6–19.8. (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [122]. See also McCosker v McCosker (1957) 97 CLR 566 at 571–2; BC5700580 per Dixon CJ and Williams J; Goodman v Windeyer (1980) 144 CLR 490 at 496–7; BC8000095 per Gibbs J; Hunter v Hunter (1987) 8 NSWLR 573 at 575 per Kirby P; Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327; BC200707701 at [41] per Debelle J; Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235; BC200709485 at [9] per McLure JA, at [74] per Buss JA. See, for example, Gardiner v Gardiner (SC(NSW), Santow J, 28 May 1998, unreported) BC9802209 at 12; Alexander v Jansson [2010] NSWCA 176; BC201005167 at [18] per Brereton J, with whom Basten JA and Handley AJA agreed. Goodman v Windeyer (1980) 144 CLR 490 at 502; BC8000095 per Gibbs J. See also Pontifical Society for the Propagation of the Faith v Scales (1961) 107 CLR 9 at 19; BC6200110 per Dixon CJ; Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [114] per Callinan and Heydon JJ; Foley v Ellis [2008] NSWCA 288; BC200809815 at [88] per Sackville AJA. Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235; BC200709485 at [12] per McLure JA. Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235; BC200709485 at [25] per Pullin JA. Cf Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189; BC200503896 at [29] per Bryson JA, with whom Giles JA and Stein AJA concurred (‘The focus of attention on needs is not an underlying legal limit on provision which can be ordered, but a subject which usually arises for consideration when the court addresses the circumstances of each case, as it is required to do’). Wentworth v Wentworth (1995) 37 NSWLR 703 at 736; BC9505254 per Cole JA.

312. See 17.58. 313. Gardiner v Gardiner (SC(NSW), Santow J, 28 May 1998, unreported) BC9802209 at 12; Akkerman v Ewins [1999] NSWCA 386; BC9906734 at [12], [13] per Fitzgerald JA; Collins v McGain [2003] NSWCA 190; BC200303888 at [42] per Tobias JA, with whom Beazley and Hodgson JJA agreed. 314. Re Harrison (deceased) [1962] NZLR 6 at 13 per Gresson P. 315. Re Anderson (1975) 11 SASR 276 at 283 per Zelling J; Hallam v Maxwell [1998] VSC 131; BC9806295 at [17] per Hansen J. 316. MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318; BC200305001 at [50] per DoddsStreeton J. 317. Collicoat v McMillan [1999] 3 VR 803 at 820; BC9502481 per Ormiston J. 318. Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 480–1 per Lord Romer (PC); Blore v Lang (1960) 104 CLR 124 at 135; BC6000550 per Fullagar and Menzies JJ (dissenting); Re Harrison (deceased) [1962] NZLR 6 at 14 per Gresson P; Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [122] per Callinan and Heydon JJ; Devenish v Devenish [2011] WASC 129; BC201103074 at [72], [73] per Pritchard J (albeit made by reference to the ‘proper’ criterion). 319. Akkerman v Ewins [1999] NSWCA 386; BC9906734 at [6] per Handley JA, with whom Beazley JA agreed; Unger v Sanchez [2009] VSC 541; BC200910756 at [99] per Kaye J. 320. Nelson v Nelson (SC(WA), Kennedy J, 9 April 1999, unreported) BC990136 at 6. 321. See, for example, Dawson v Fitch (2002) 84 SASR 20; [2002] SASC 12; BC200205725 at [33] per Lander J. 322. Welsh v Mulcock [1924] NZLR 673 at 685 per Salmond J. 323. Ball v Newey (1988) 13 NSWLR 489 at 492 per Samuels JA. See also Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235; BC200709485 at [9] per McLure JA (‘”need” is not determined by reference only to minimum standards of subsistence’); Wardy v Salier [2014] NSWSC 473; BC201403070 at [147] per White J; Re Jackson (deceased) [2016] 1 All ER 932; [2015] EWCA Civ 797 at [58] per Arden LJ (noting that the court is not bound to ‘limit maintenance to mere subsistence level’). 324. Re Harrison (deceased) [1962] NZLR 6 at 14 per Gresson P. See also Re Estate of Demetriou (deceased) (2013) 12 ASTLR 124; [2013] VSC 703; BC201316124 at [143] per Zammit AsJ (who, in a case involving a reasonably large estate, remarked that ‘[t]o suggest that the plaintiff has no financial needs because she says she can meet her debts and owns her home is to my mind a very narrow view of the concept of need’). 325. (1980) 144 CLR 490 at 499; BC8000095 per Gibbs J. 326. [2009] VSC 541; BC200910756. 327. As to which see 15.18–15.21. 328. But this does not mean that, to satisfy the jurisdictional question, an applicant must ‘demonstrate that her or his needs are greater than the named beneficiaries under the will’: Dean v Collins (No 2) [2015] WASCA 151; BC201507295 at [26] per Chaney J, with whom Martin CJ and Buss JA concurred. 329. As to ‘character and conduct’ in this regard, see generally 19.9–19.27. 330. Unger v Sanchez [2009] VSC 541; BC200910756 at [81], [82]. 331. Unger v Sanchez [2009] VSC 541; BC200910756 at [103]. 332. Collins v McGain [2003] NSWCA 190; BC200303888 at [47] per Tobias JA. 333. Alexander v Jansson [2010] NSWCA 176; BC201005167 at [18] per Brereton J, with whom Basten JA and Handley AJA agreed. 334. Collins v McGain [2003] NSWCA 190; BC200303888 at [42] per Tobias JA, with whom Beazley and

Hodgson JJA agreed. 335. [2004] ACTSC 121; BC200407804 at [32]. 336. (2003) 11 VR 95; [2003] VSC 318; BC200305001 at [228]. 337. Williams v Aucutt [2000] 2 NZLR 479; [2000] NZCA 289 at [70] per Blanchard J (‘It is not for the court to be generous with the testator’s property beyond ordering such provision as is sufficient to repair any breach of moral duty’); Simons v Permanent Trustee Co Ltd [2005] NSWSC 223; BC200501471 at [47] per Palmer J (‘as far as the purposes of the Act are concerned, capacity to be generous does not translate into obligation to be generous’). 338. MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318; BC200305001 at [213] per DoddsStreeton J. 339. See 15.14. 340. MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318; BC200305001 at [212] per DoddsStreeton J. See also Burt v Agius [2003] NSWSC 461; BC200303684 at [60] per McLaughlin M (‘[an applicant] cannot attempt to establish an entitlement to an order for provision by establishing, if the applicant can, that the person who receives benefits as a result of the death of the deceased person … is in more affluent financial circumstances than the applicant’). 341. Bahouse v Negus [2012] WTLR 1117; [2008] EWCA Civ 1002 at [12] per Mummery LJ, at [25] per Mumby J. 342. See 18.2. 343. See, for example, Chan v Chan [2016] NSWCA 222; BC201607103 (where the court granted the applicant, who was one of the deceased’s sons and suffered a ‘functional impairment’, an additional $700,000 provision, out of a $15m estate, to assist in maintaining an expensive property that the deceased had purchased inter vivos for the applicant; Payne JA (at [88]) noted that the ‘proper’ maintenance of the applicant required ‘consideration of the totality of the appellant’s position in life and, in particular, the environment to which he was accustomed’). 344. Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54; BC200901634 at [34] per Basten JA, with whom Allsop P and Ipp JA concurred. 345. Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [115] per Callinan and Heydon JJ. See also Re Borthwick (deceased) [1949] 1 Ch 395 at 401 per Harman J (maintenance ‘does not mean that you can only give the dependant just enough to put a little jam on his bread and butter’ and ‘cannot mean only mere subsistence’); Re Coventry (deceased) [1980] Ch 461 at 485 per Goff LJ (proper maintenance ‘does not mean just enough to enable a person to get by; on the other hand, it does not mean anything which may be regarded as reasonably desirable for his general benefit or welfare’); Re Dennis (deceased) [1981] 2 All ER 140 at 145 per Browne-Wilkinson J (‘the word “maintenance” connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him’). 346. Blore v Lang (1960) 104 CLR 124 at 128; BC6000550 per Dixon CJ; Estate of Puckridge (deceased) (1978) 20 SASR 72 at 77 per King CJ; Re Wardle (1979) 22 SASR 139 at 144 per Zelling J; Mayfield v Lloyd-Williams [2004] NSWSC 419; BC200403130 at [114] per White J (aff’d Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189; BC200503896). 347. Williams v Aucutt [2000] 2 NZLR 479; [2000] NZCA 289 at [52] per Richardson P, who also delivered the judgment of Gault, Keith and Tipping JJ. 348. Bosch v Perpetual Trustee Company Ltd [1938] AC 463 at 478–9 per Lord Romer (PC). See also Blair v Blair (2004) 10 VR 69; [2004] VSCA 149; BC200405494 at [40], [41] per Nettle JA; Lee v Hearn (2005) 11 VR 270; [2005] VSCA 127; BC200503355 at [4] per Callaway JA; Vigolo v Bostin (2005)

349. 350. 351. 352. 353. 354.

355. 356. 357. 358. 359. 360.

361. 362. 363.

364. 365. 366.

367.

221 CLR 191; [2005] HCA 11; BC200500902 at [11]–[25] per Gleeson CJ, at [117]–[121] per Callinan and Heydon JJ; Stone v Stone [2016] NSWSC 605; BC201603499 at [46] per Brereton J. Worladge v Doddridge (1957) 97 CLR 1 at 17; BC5700260 per Kitto J. See 15.14. McKenzie v Topp [2004] VSC 90; BC200401441 at [15] per Nettle J; Litchfield v Smith [2010] VSC 466; BC201007667 at [26] per Hargrave J. This is also informed by the extent to which the timing of the relevant inquiry aligns with the date of the order as opposed to being confined to the date of death, as circumstances may have changed in the interim: see 17.80–17.82. Nicholls v Hall (2007) 2 ASTLR 419; [2007] NSWCA 356; BC200710898 at [40] per the court. See, for example, Forsyth v Sinclair [2010] VSCA 147; BC201004190 (where the deceased had made a will some decades before his death, prior to the commencement of his relationship with the claimant). Cf Sellers v Scrivenger [2010] VSC 320; BC201005217 at [76] per Daly AsJ (noting that courts should be reluctant to interfere unduly with a testator’s wishes, particularly where a relatively short period of time passes between the making of the will and the death). Stone v Stone [2016] NSWSC 605; BC201603499 at [46] per Brereton J. Williams v Aucutt [2000] 2 NZLR 479; [2000] NZCA 289 at [44] per Richardson P. Bentley v Brennan [2006] VSC 113; BC200602728 at [24]. Bentley v Brennan [2006] VSC 113; BC200602728 at [24]. ACT s 8(2). NSW s 59(1)(c), (2). See also Churton v Christian (1988) 13 NSWLR 241 at 248; BC8803144 per Priestley JA (noting that the equivalent provisions in the the former legislation (NSW 1982 ss 7, 9) make it clear that the time at which the court must determine whether provision ‘ought’ in the case of s 7 to be made for the applicant or whether the provision made by the deceased was ‘inadequate’ in terms of s 9(2) is the time of making or refusing to make the order); Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308; BC201207749 at [16] per Allsop P. NSW s 60(2)(p). As to the ‘jurisdictional’ and ‘discretion’ stages, see 17.57, 17.58. Prosser v Twiss [1970] VR 225 at 232 per Lush J; Little v Angus [1981] 1 NZLR 126 at 127 per Cooke J (CA); Anderson v Teboneras [1990] VR 527 at 532 per Ormiston J; Niehoff v Niehoff [1995] 2 VR 356 at 357–8; BC9503258 per Eames J (each preceding the Victorian 1998 amendments, as to which see 16.47). Cf King v Condon [2009] 2 Qd R 143; [2009] QSC 67; BC200902341 at [8] per de Jersey CJ (whose remark that ‘[t]he estate’s liability for further provision is to be determined as at the date of death’ should be seen as a reference to the ‘jurisdictional’ stage, as the issue his Honour was addressing was the moment at which the cause of action accrued). (1994) 181 CLR 201; BC9404642: see 17.57, 17.58. Which in turn may explain why the Australian Capital Territory and New South Wales provisions make explicit reference to the date of the order for the timing of the relevant inquiry. (1956) 95 CLR 494 at 508, 509; BC5600470 (emphasis supplied). See also Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 147–8; BC7900037 per Gibbs J. See, for example, Re Goodwin (deceased) [1969] 1 Ch 283 (where Megarry J increased provision for the testator’s widow, who had been bequeathed, inter alia, the residue of his estate, which proved to be less than the trustee expected, half consisting of the balance of an interest-free loan he had made to a son of the widow by her first marriage; as the son became ill after the testator’s death and ceased making weekly repayments of the loan, thereby leaving the widow reliant on social security payments, his Lordship did not think that ‘this testator, who I take to be a good father and a good

368. 369. 370. 371. 372.

husband, would have expected his widow to be compelled by the smallness of the provision made for her by his will to enforce repayment of a debt due from her son in circumstances such as these’: at 290). Vic s 91A(2) (before 1 January 2015, Vic s 91(4), which was expressed in imperative terms). Before 1 January 2015, Vic s 91(4)(h). Being the opinion of Forrest J in Panozzo v Worland [2009] VSC 206; BC200905484 at [56]. Panozzo v Worland [2009] VSC 206; BC200905484 at [57] per Forrest J. Cf Greely v Greely (2011) 5 ASTLR 534; [2011] VSC 416; BC201106574 at [22] per Judd J (who reconciled the words of (then) Vic s 91(4)(h) (now s 91A(2)(d)) and case law locating the jurisdictional question at the date of death ‘by approaching the analysis of the available facts at the date of death with the advantage of all relevant facts at the date of trial’).

[page 615]

CHAPTER 18

Particular Classes of Applicants Provision for Existing (De Jure or De Facto) Spouses The ‘broad general rule’? Application of ‘broad general rule’ Where competition with other claimants/beneficiaries Dealing with competing claims via the terms of the order Via a later award? Via the form of order (including ‘Crisp order’) Where the estate can satisfy the claims

18.2 18.2 18.3 18.5 18.7 18.8 18.9 18.11

Provision for Former or Estranged Spouses or Domestic Partners Eligibility to apply Circumstances where provision can be ordered ‘Clean break’ notion Circumstances relevant to order

18.13 18.13 18.14 18.15 18.17

Provision for Offspring Adult child vs infant child Any general rule regarding adult sons/children? ‘Special claim’ or ‘special need’ as a prerequisite? Move away from requiring a ‘special claim’ or ‘special need’ Assisting ‘lame ducks’ Scope of parental duty Housing? Items on a ‘wish list’? Cases involving ‘bare paternity’

18.22 18.22 18.23 18.24 18.26 18.29 18.31 18.32 18.33 18.34

Provision for Grandchildren

18.36

Eligibility to apply Judicial attitude to applications Approach as between jurisdictions Where the child’s parent is deceased or dissociated from the child Pattern of generosity insufficient Relevance of provision for parent for benefit of grandchild

18.36 18.37 18.38 18.42 18.43 18.44

Provision for Stepchildren Eligibility to apply Relevant considerations Quantum of provision

18.45 18.45 18.46 18.48

Provision in Other (Family-type?) Relationships

18.50

[page 616] 18.1 Although the classes of eligible applicants for provision have been extended over time,1 the case law reveals that the chief applicants, in practice, remain the spouses (de jure or de facto) and offspring of the deceased. The community, after all, views these relationships as most amenable to a moral duty to provide. It stands to reason that a deceased’s testamentary provision for persons other than his or her (de facto) spouse or children — such as siblings, other relations and friends, or charities,2 who have no or a lesser moral claim to provision — is, if any provision for the spouse or children is inadequate, liable to be upset upon the spouse or children seeking (additional) provision.3 In Bowyer v Wood,4 for example, the testatrix bequeathed two-thirds of her estate to her siblings and their families. The court saw no reason for the testatrix to prefer those interests ahead of her own children.5 Her fondness for her siblings and their families, and substantial inter vivos gifts she had made to her children, did not, said the court, alter the conclusion that the testatrix had made inadequate testamentary provision for her children.6 Accordingly, this chapter contains dedicated treatment of the curial attitude to applications by spouses and children of the deceased, who are acknowledged as eligible persons under family provision regimes in each jurisdiction,7 as can

be expected in view of the usual closeness of relationships of this kind. It then explains the curial attitude to applications for provision by some of the other classes of persons that figure in the case law, namely grandchildren, stepchildren and other (quasi-) family members of the deceased. Together these highlight the practical application of both the jurisdictional and discretionary stages8 of the court’s power to order family provision.

Provision for Existing (De Jure or De Facto) Spouses The ‘broad general rule’? 18.2 In Luciano v Rosenblum9 Powell J identified a ‘broad general rule’ that the duty of a testator to his widow, to the extent that his assets permit, is ‘to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseeable [page 617] contingencies’. His Honour elaborated on this rule in a judgment delivered 2 years later, remarking as follows:10 Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband, and assisted him to build up and to maintain his estate, the duty which a deceased owes to his widow can be no less than, to the extent to which his assets permit him to achieve that result; first, to ensure that his widow be secure in her home for the rest of her life, and that if, either, the need arises, or, the whim strikes her, she have the capacity to change her home; second, that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and, third, that she have available to her a fund to which she might resort in order to provide herself with such modest luxuries as she might choose, and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring.

Consistent with these sentiments, benefits to a wife provided via the vehicle of a discretionary trust are, by virtue of their non-proprietary nature, unlikely to fulfil the husband’s moral duty.11

Application of ‘broad general rule’ 18.3 Powell J’s ‘broad general rule’ requires some comment. First, although endorsed by the New South Wales Court of Appeal,12 and indeed by other courts,13 it cannot be seen as unyielding. An unthinking application of a general rule is inconsistent with the curial discretion underscoring the family provision jurisdiction.14 Second, whether the ‘broad general rule’ can potentially apply to widowers is the subject of differing judicial opinions. There are judges who, keen to foster sexual equality before the law, support its application where the survivor is [page 618] the husband.15 Others, however, maintain that the ‘broad general rule’ should see differential application in this context, the difference in attitude to applications by widows being attributable, in part, to economic disadvantages that women still face, occasioned substantially by the greater responsibility that women often take in looking after children.16 Some, like Young CJ in Eq in Marshall v Carruthers,17 have taken a further step, querying whether the rule should have any widespread application in the modern law: Powell J’s broad general rule may not be a good guide as to what the court will consider as the duty of a testator towards a spouse in the case of a financially dependent spouse where there is a history of bringing up children with the deceased or in supporting the deceased while he was amassing his fortune. The broad general rule may well be inapplicable in cases of other spouses. Indeed, the cases in the first half of the 20th century show that as far as widowers were concerned, the proposition was quite untrue.

Third, to the extent that the ‘broad general rule’ has application, it may extend to a person who occupies the position of a de facto spouse (or at least a de facto wife),18 though it cannot be assumed that it automatically applies with equal force.19 In judicial remarks that continue to hold sway,20 it has been said that ‘a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim’, especially where a woman has, ‘to the detriment of her own financial prospects, taken a major role in raising the children of herself and the deceased’.21 Yet at the same time, the closer the de facto marriage exhibits

characteristics of a de jure marriage, the stronger the claim.22 18.4 Importantly, whatever the status of the ‘broad general rule’, each case must ultimately rest heavily on how the relevant statutory inquiry — whether the deceased has made adequate [page 619] provision for the maintenance of his or her spouse — translates to the facts.23 That judges have shown an inclination to favour wives is perhaps no surprise, in that the relationship of husband and wife was historically one to which a moral obligation to provide attached. Indeed the original family provision legislation was designed to protect wives in particular. But both then and now, there is no such thing as a ‘standard widow’, a point conceded also by judges who endorse the ‘broad general rule’.24 In Manly v Public Trustee,25 for instance, in view of the short duration of the marriage (4 years), the fact that the applicant had made no real contribution to the estate, and the terms of the prenuptial arrangement between the applicant and the deceased, the Queensland Court of Appeal held that this was not a relationship to which the ‘broad general rule’ could be said to apply. And nor was the de facto widow in Marshall v Carruthers26 — whose relationship with the deceased commenced 5 years prior to the latter’s death, whose property was held with the deceased as tenant-in-common, and who earned a good income and owned assets approaching $1m — within the typical mid-20th-century widow that Powell J had in mind when making his assessment in Luciano v Rosenblum.

Where competition with other claimants/beneficiaries 18.5 The facts of Luciano v Rosenblum, against which Powell J espoused the ‘broad general rule’, did not involve a competing claim or proved need by another eligible person. Its application in cases where a widow’s (or widower’s) claim competes with that of other eligible persons (often the children of the deceased from a previous marriage or relationship) is, therefore, by no means automatic. Having said that, judicial remarks can be found that ‘[o]ther things

being equal, right thinking members of society are likely to accept that the needs of the widow of a second marriage should rank in priority ahead of the claims of the children of a first marriage’27 and that ‘[c]ourts give more attention to the needs of a widow than they do to the needs of the children, if the children are adult and well able to support themselves’.28 Though no court has gone so far as to endorse this as an inflexible rule,29 circumstances in which, consistent with the statutory schema, a court may prioritise the claim of a widow or widower have been identified:30 … where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the

[page 620] needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others.

18.6 It follows that there is arguably no presumption that the position of a surviving spouse attracts any primacy or paramountcy in the face of other competing claims. But in balancing the competing claims of the other eligible applicants,31 or the beneficiary(ies) of the deceased’s will,32 the facts may reveal that the need of the surviving spouse, and with it his or her moral claim on (at least part of) the deceased’s estate, relative to the competing claimants is more pressing. This led a New South Wales judge to observe, against the backdrop of the modern case law, that:33 … while there is no general principle of paramountcy on which to [sic] [a surviving spouse] can rely, nevertheless it appears to be accepted that (in a reflection of what I would understand to be normal community expectations or standards) one would ordinarily expect a testator to make provision for the needs of his or her spouse having regard to any competing claims on the testator’s bounty.

In making this assessment, courts are guided by the various criteria identified at general law, and in some jurisdictions by statute,34 that inform the jurisdictional and discretionary stages of the relevant inquiry. The duration and nature of the spousal or de facto/domestic relationship, and the respective

contributions to that relationship, together with the size of the estate and the applicant’s need, are clearly important factors to this end, but they are hardly exhaustive.

Dealing with competing claims via the terms of the order 18.7 If a court decides that the claim of a widow (or widower) should receive primacy over that of the deceased’s children from an earlier relationship, this does not mean that the widow (or widower) will receive the entire estate, or even part of the estate, in fee simple. This may be contrasted with the case where the deceased has no children of his or her own, and there are no other competing claimants on the estate, in which event there are more compelling grounds to grant the surviving spouse a fee simple interest in some (or even all) of the estate; this, after all, underscores the ‘broad general rule’ from Luciano v Rosenblum discussed above.35 The concern with prioritising the claim of the deceased’s widow (or widower) ahead of his or her stepchildren is that those children may be ultimately deprived of their inheritance from their parent, which the surviving spouse may be inclined to bequeath to members of his or her own family.

Via a later award? 18.8 Courts have addressed this concern in one of two main ways. The first is by countenancing the prospect of making an award of provision out of the step-parent’s estate upon the latter’s death. (This assumes that the stepchildren have standing to seek provision, [page 621] which they lack in South Australia).36 Nettle J in McKenzie v Topp envisaged such an approach, remarking as follows:37 … upon the death of the widow, and as it were in the event of a surplus, most would surely say that the children of the first marriage should rank for their fair share. For once the widow is gone,

and therefore no longer in need of provision, her needs no longer warrant that the children rank behind her or thus her chosen successors … If children of a first marriage have stood aside in order that their father might make adequate provision for the widow of a second marriage, and upon her death there are assets in her estate, the amount left by their father to the widow may be relevant to the question of whether she is responsible to provide for them.

Via the form of order (including ‘Crisp order’) 18.9 A second way of addressing the issue is via the form of order granting provision to the applicant. It may, in some circumstances, be appropriate to make no more than an income provision for the surviving spouse, and thereby preserve the capital of the estate for the deceased’s children or other relatives. The appropriateness of an income provision will rest entirely on the circumstances, and its suitability may depend on whether or not the applicant has, or has been supplied with, a residence. If a residence is otherwise lacking, there may be scope to grant the applicant a life estate, together with, if necessary, an income provision. Concern as to the applicant’s capacity to meet the vicissitudes of life, or to maintain himself or herself autonomously may, on the other hand, favour the provision of a capital asset,38 even if it may incidentally enable the applicant in due course to pass that asset on to members of his or her own family.39 But, as noted by Mason J in White v Barron:40 … the provision of a large capital sum for a widow who is not young, may in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy.

18.10 To balance the competing claims of a residence for the surviving spouse, and the inheritance of the children of the deceased, on multiple occasions New South Wales courts have, informed by sentiments such as those of Mason J, held that a life interest with particular attributes was appropriate. The leading case, and the one that has given its name to the relevant type of order, is Crisp v Burns Philp Trustee Co Ltd.41 A ‘Crisp order’ is in the nature of ‘a portable life estate’,42 and has the following characteristics:43 What is described in the cases as a ‘Crisp order’ … gives an applicant an interest for life in real property, or in an interest in real property, with the right to it (should the need arise) for the purposes of securing, for the applicant’s benefit, more appropriate accommodation. That type of order is intended to provide flexibility, by way of a life estate, the terms of which could be changed to cover the situation of the applicant moving from her own home to retirement village

to nursing home to hospital.

For example, in Cross v Wasson44 Ward J, expressing the concern that an order other than one providing the widower with, in effect, a fee simple in the matrimonial home, and the ability to relocate his accommodation as necessary, would not be adequate to meet his future accommodation needs, made a ‘Crisp order’. A ‘Crisp order’ addresses the drawback, from the perspective of the surviving spouse, that provision in the form of a life estate in a residence [page 622] does not cover the situation of the spouse moving from the residence ‘to retirement village to nursing home to hospital’.45 It is thus surprising that courts in other Australian jurisdictions have shown relatively little interest in this form of order.46 Although most relevant in the context of surviving spouses, ‘Crisp orders’ are not confined to this scenario. In Stern v Sekers,47 for instance, Ward J made a ‘Crisp order’ in favour of one of the applicants, who was one of the deceased’s children, permitting him to sell the property in question to acquire other suitable accommodation for himself and his family and, in due course, aged care residential accommodation should he so require it, but at the same time preserve the remainder interest in the property or any substitute property for the applicant’s children. This aligned with the testator’s bequest of the property to his widow on trust for the applicant and any children he might have for life, with the remainder interest passing on the applicant’s death to his children in equal shares.

Where the estate can satisfy the claims 18.11 Underscoring each of the foregoing two responses to the prospect of a surviving spouse’s claim endangering the claims of the deceased’s children is the assumption that the deceased estate is insufficient to meet competing claims on it. Where the estate is sufficient to meet those claims, there is arguably no need for a ‘Crisp order’ or for envisaging a subsequent application for provision against the step-parent’s estate. Rather, the surviving spouse’s

claim can be met by a capital provision, commensurate with what, in the circumstances, fulfils the notion of adequacy. It was in the context of a large estate, lacking a competing claim or need in the beneficiaries of the testator’s will, that McColl JA in Hertzberg v Hertzberg48 referred to ‘the community expectation that a testator should make provision for a widow to ensure that she can lead an independent and dignified life’, the prospect of which ‘is diminished when the widow does not have the benefit of the fee simple, but rather, a right of occupation of her home with a provision for expenses associated with that right being left in the hands of the executors’. 18.12 Where the estate is sufficient for this purpose, the quantum and form of provision for the surviving spouse is adjudged by reference to the manner in which he or she has become accustomed by virtue of the relationship with the deceased (a ‘lifestyle’ factor). So it has been said that ‘in the absence of special circumstances it will normally be the duty of the testator to ensure that a spouse is provided with a place to live appropriate to that which he or she has become accustomed’.49 So in O’Loughlin v O’Loughlin50 the New South Wales Court of Appeal saw it as incumbent on the deceased, a retired barrister, to provide a means by which his widow could continue living in the matrimonial home ‘in a lifestyle … suited to the widow of a wealthy barrister’, as ‘[t]he deceased’s estate was adequate to enable that provision to [page 623] be made’. And in Neil v Jacovou,51 where the deceased’s net estate totalled $25m, Slattery J approved a multi-million dollar provision in favour of the deceased’s spouse and child, albeit significantly discounting the amount sought as extravagant. The position differs if the estate is not sufficient to maintain this lifestyle or, more generally, where the surviving spouse pursued an unsustainable lifestyle preceding the deceased’s death.52 The converse does not necessarily follow. That an applicant, during the relationship with the deceased, has been accustomed to very little does not necessarily preclude a greater award. This derives from the meaning of ‘proper’ maintenance and support in the family provision legislation, which means

more than the lowest possible amount to enable someone to survive.53 If the deceased restricted the applicant to a frugal way of life, that low grade of support is not necessarily adequate provision of proper maintenance and support.54

Provision for Former or Estranged Spouses or Domestic Partners Eligibility to apply 18.13 It is not essential that the marriage or de facto relationship be subsisting at the time of the deceased’s death for a (former) spouse or de facto partner of the deceased to apply for, and potentially secure, provision from the deceased’s estate. The family provision legislation identifies a former spouse as a person eligible to seek provision from the deceased’s estate,55 although it is tied to the continuing provision of maintenance to that person in the Northern Territory, Queensland, Tasmania, Victoria and Western Australia.56 In the Australian Capital Territory a person who was the deceased’s civil partner57 at any time or domestic partner58 continuously for 2 or more years at any time may also apply for provision.59 In the Northern Territory and Western Australia a former de facto spouse or partner,60 and in Tasmania a person whose significant relationship61 with the deceased had ceased before the latter’s death, have standing to apply, but again tied to the continuing [page 624] provision of maintenance.62 Former civil partners can apply for provision in Queensland if they were receiving or entitled to receive maintenance from the deceased and had not, before the deceased’s death, married or entered into another civil partnership.63 In Victoria, following amendments that took effect on 1 January 2015, a former domestic partner of the deceased may apply for provision if, at the deceased’s death, he or she would have been able to take proceedings under the Family Law Act 1975 (Cth) and has not taken those

proceedings, has commenced but not finalised those proceedings, or is now prevented from doing so because of the deceased’s death.64 The South Australian position remains unclear.65 The New South Wales legislation makes no explicit provision for standing in a former de facto partner, but it is conceivable that such a person could achieve standing by proving that he or she was, at any particular time, wholly or partly dependent66 on the deceased and was, at that or any other time, a member of the household67 of which the deceased person was a member.68

Circumstances where provision can be ordered 18.14 That a former spouse or de facto partner (collectively referred to below as ‘former spouse’) may have standing to seek provision from the deceased’s estate does not guarantee the success of a claim. Like other applicants, a former spouse must establish that the deceased has not made adequate provision for his or her maintenance or support (satisfy the ‘jurisdictional’ stage) and convince the court, in the circumstances, to exercise its discretion to make an order for provision. There is no general rule or presumption governing applications by former spouses; the relationship between former spouses is, after all, capable of infinite variations that may impact on the strength of the claim.69

‘Clean break’ notion 18.15 What can be said, at least as a starting point, is that a final property settlement effected or approved by the court is likely to be viewed as terminating any moral claim of a former spouse to provision in the will of the other. This is informed by the public policy underlying the [page 625] finality of settlements of property disputes70 and the importance of upholding bargains freely entered into.71 As Kirby P explained in Dijkhuijs (formerly Coney) v Barclay:72

[T]he respondent … urged that s 9(1) [of the Family Provision Act 1982 (NSW) (‘the Act’]) … was to be read in the light of the policy of the law to promote the finality of settlements of property disputes by orders made in the Family Court. Where such orders had been made an order under the Act in the case of a former spouse should be exceptional. Only if this approach were adopted would the policy of the Family Law Act (Cth) be fully achieved. That policy is that parties whose marriage has been dissolved and in respect of whom orders have been made disposing of their matrimonial property could go their separate ways. Save for the rare and exceptional cases provided under the Family Law Act (Cth), such parties should henceforth face no financial obligation from one to the other … Confronted by the news that he or she had been excluded from the will of the former spouse, the response would, in the overwhelming majority of cases, be: ‘Our marriage was dissolved. We settled our financial affairs. We can each start a new life. That was the whole point of the Family Court proceedings’.

More recently, in the same vein, it has been judicially stated that, according to general community standards, a former spouse who has been accorded all rights under a property settlement and has no continuing right to maintenance ‘is not generally regarded as a natural object of testamentary recognition’.73 And with this any moral duty to make provision ordinarily evaporates. For example, in Mulcahy v Weldon74 the parties wed in 1971, separated in 1988 and divorced in 1989. Pursuant to court-approved terms of settlement, in 1990 the wife received $150,000. The husband died in 1998, and in a ruling affirmed on appeal,75 Bryson J refused the wife’s application for provision out of his estate, reasoning as follows:76 In the present case there was a clean break in every sense; the order purported to be complete and there actually was no continuing relationship of financial dependency, nothing in the nature of a continuing maintenance obligation or claim, and no circumstances of a continuing relationship which might be thought to bring provision for the plaintiff under consideration because of conduct or events after the property settlement … In substance their matrimonial life ended when they separated about 1988, and there was no reality in the relationship thereafter. In particular, apart from the property settlement, neither made any contribution thereafter to the welfare or assets of the other. Since the separation and divorce the plaintiff did not meet or see [the deceased] or take any part in his life at all, apart from carrying out the Terms of Settlement. Indeed she avoided him, hid from him according to her evidence, because he was violent.

[page 626] 18.16 The same outcome may ensue even if the parties have not formally divorced, or if their division of property is addressed via an informal agreement, if there is nonetheless a ‘clean break’ between them. In Armstrong v Sloan,77 for instance, Harper J found that each party regarded the marriage as

finished, and had found a new partner. The consent orders relating to the marital assets took the wife out of the category of those in financial need, and were ‘on any view intended to give expression to the break in the relationship’78 and ‘remove each as a claimant on the other’s testamentary bounty’.79 The wife’s position was therefore ‘as close to that of a divorcee as it could be in the absence of a divorce’,80 and her application for provision was accordingly refused. And in Scott v Scott,81 where there had been no divorce or binding financial agreement between the parties, but a mere informal equal division of assets, Ward J remarked that the community might consider that a testator in the deceased’s position had done ‘the right thing’ by effecting an amicable division of their assets prior to his death ‘and had limited, if any, further moral duty to support his widow’. Although the applicant’s position came ‘very close’ to that of the applicant in Armstrong v Sloan, her Honour opined that, ‘given the length of this marriage and the subsistence of an amicable relationship between the couple for some period after their separation’, from a community perspective some moral claim remained.82 Only a modest legacy (one-eighth of the estate) was ordered.

Circumstances relevant to order 18.17 Notwithstanding the aforesaid, that the family provision legislation envisages applications by former spouses (and, in several jurisdictions, former de facto partners) in and of itself is indicative of a legislative policy against the former ousting the latter, notwithstanding the policy of finality of property settlement.83 And the High Court’s remark that ‘maintenance and the determination and adjustment of property interests on the breakdown of a marriage’ is a legal topic ‘separate and distinct from testator’s family maintenance’84 affirms that divorce and property settlement cannot outright preclude provision. A New Zealand judge explained the point as follows:85 [T]he question of a wise and just testator’s duties in respect of persons entitled to claim under the [family provision legislation] is distinguishable from the question whether the pool of matrimonial property in existence at the time a married couple separate has been justly divided between them. A moral obligation as a testator cannot be automatically satisfied by having previously met an irresistible legal obligation as a spouse. Upon a property division spouses take not by dint of charity or bounty but by right, and moral obligations are not in issue. Some moral obligations or entitlements capable of being met by monetary compensation can remain unsatisfied even though the [family law] regime may have been punctiliously applied because the benefit or value of the obligation or entitlement, whether economic or moral, does not fall into or

cannot be adequately satisfied by the pool of matrimonial property available for division.

[page 627] So while it appears that a ‘clean break’ between the parties, consequent upon a settlement of their financial relations, will preclude a family provision order other than in an ‘exceptional’ and ‘remarkable’ case,86 the position may be different in other contexts. For instance, it may be different if the applicant can establish that the settlement was not just and adequate (which may prove challenging, but perhaps not impossible, if he or she was legally represented in effecting the settlement).87 It may also be different if, for any reason — say, involving nondisclosure or misrepresentation88 — the Family Court might have reopened its consideration and ordered another settlement. Though a court hearing a family provision application is not to go behind the orders made by the Family Court,89 the terms of any settlement remain relevant to the applicant’s need and the extent to which it may have been satisfied in the deceased’s lifetime.90 And if the making of a property settlement order has been frustrated by, say, the husband’s premature death, an application for provision by the wife may be warranted.91 18.18 There may, moreover, remain a case for a family provision order, even where parties are separated or divorced, if there has been no ‘clean break’. The cases acknowledge that an ongoing association between the parties may carry a moral obligation to provide, although the effect of the separation or divorce may impact on the quantum of any provision ordered.92 This ongoing association may be social or emotional; after all, some divorced persons remain on close terms. It may also be financial, say, where the parties have not finally settled all their [page 628] property dealings, there is an ongoing obligation to pay spousal maintenance, or some other continued financial dependency.93

18.19 Ultimately, as in every application for provision, what informs the court’s determination is the basic inquiry whether the deceased made adequate provision for the applicant’s proper maintenance. The nature of the parties’ relationship, ‘as far as possible without preconceptions based only on the fact of divorce’,94 must be examined to properly address this inquiry. For example, in Churton v Christian95 a divorce years earlier did not preclude the applicant from securing provision from her former husband’s estate, as their lives ‘remained to a noticeable extent connected notwithstanding the separation and divorce’, she remained in need and had, upon the divorce, sought no property settlement. Conversely, in Hart v Van Son96 the applicant, who was the deceased’s former de facto wife, had got on with her life in forming a new stable relationship within which she gave birth to a child, and had completely severed her relationship with the deceased. Kunc J, heavily influenced by the ‘decisive break in the relationship’,97 ruled that the applicant was ineligible to seek provision, and would in any case, and for the same reason, have been denied provision. 18.20 Where the applicant’s ongoing association with a former spouse involves further contributions to the latter’s welfare, there may well be compelling grounds to recognise a moral obligation to provide, in some way, for the applicant.98 In making an assessment of this moral obligation, courts have shown a willingness to take into account the deceased’s conduct towards the applicant, both leading up to and following the divorce. For instance, though obsolete in matrimonial law, the ‘culpability’ of the deceased in relation to the grounds of divorce has been treated as relevant in the family provision environment.99 Each of these matters, as well as doubts over the adequacy of the relevant property settlement, combined on the facts of Burke v Public Trustee.100 The parties’ 1967 marriage, which for practical purposes ended in 1978, was dissolved in 1982, pursuant to which the plaintiff and her husband (B) agreed on a property settlement, not recorded in writing. What led Debelle J to grant the plaintiff nearly three-quarters of B’s estate appears in the following extract:101 [N]otwithstanding that the plaintiff and [B] had divorced and had agreed upon a property settlement, other factors justified the plaintiff’s claim. First, the plaintiff had purchased the equity of [B] in the matrimonial home and had to borrow to do so. There was no generous settlement upon her. The marriage between the plaintiff and [B] dissolved because he had left her to live with another woman. Notwithstanding that the divorce put an end to the shared matrimonial life

… [B] and the plaintiff continued to maintain contact. After [B] had ceased cohabiting with that woman in 1982, the extent and degree of contact increased significantly. The plaintiff’s willingness to continue to provide [B] with assistance in a material and practical way demonstrated that, for her part at least, the marital bond was not entirely severed. It is reasonable to infer that there was a reasonable degree of affection notwithstanding that the plaintiff and [B] did not again

[page 629] live together. It must be significant that the plaintiff had provided a good deal of care for [B] in one way or another for some 22 years, albeit not continuously in that period, and in the last eleven years on about a weekly basis. The plaintiff provided extensive support to [B], both tangible and intangible. She provided financial assistance in the form of loans, some of which at times when it would have been difficult for her to do so … She provided food and cooked meals. She assisted in routine domestic accounting and has tidied [B’s] flat when she visited. She provided emotional support and loyalty to [B]. This emotional, financial and other support was provided by her over a period of about eleven years. She was one of very few friends who assisted and supported [B] in those years.

What the above extract reveals, inter alia, is that issues of ‘culpability’ for the breakdown of the marriage do not stand alone in the court’s inquiry. Rather, they appear to have surfaced in the legal landscape as a means of bolstering other weightier matters in the totality of the circumstances informing the court’s discretion. It is outside the scope of the family provision regime, after all, for the court to indulge in the process of ‘evening up the score’ as between parties to a marriage.102 18.21 Where, following the parties’ separation or divorce, the deceased has made further contributions to the applicant’s welfare, this factors into the question of adequacy of provision upon the deceased’s death. In Chapman v Chapman,103 for instance, despite living separate lives and having separate financial affairs from 1979, the deceased, upon his retirement in 1993, gifted a substantial proportion of his retirement lump sum benefit to his estranged wife (the applicant). And the evidence revealed that the deceased was aware that, as there had been no divorce and because he made no adjustment to his superannuation fund to direct benefits to a de facto spouse, the applicant would, on his death, receive for the balance of her life an ongoing indexed superannuation pension. Coupled with a finding that the parties split their assets fairly upon separation, this led Connolly J to refuse the applicant’s claim

for further provision from the deceased’s estate.104

Provision for Offspring Adult child vs infant child 18.22 Where a child remains under-age at the time of the deceased’s death, there are compelling grounds to identify a continuing moral obligation to provide for the child. Few under-age children have sufficient resources of their own to properly maintain or support themselves. While there are no inflexible rules in this regard, the ‘need’ and ‘dependency’ of an under-age child, especially an infant, translates to curial sensitivity to the position of children for whom a parent has made no or inadequate provision.105 But when the child has reached the age of majority, and especially when he or she is ablebodied and employed, there is arguably a less weighty moral obligation on the parent to make provision, and one that may lose priority to the moral claim of the parent’s spouse106 or the competing claims of needier siblings. Of course, a parent’s moral duty to make testamentary provision for his or her child, for the purposes of the family provision jurisdiction, does not equate to any inter vivos moral [page 630] responsibility to maintain or support an adult child who has become selfreliant. In this latter instance, parents are legally, and most would say also morally, entitled to enjoy their own money and, as noted by the New South Wales Court of Appeal, ‘many do by caravanning throughout Australia in their retirement or taking overseas trips and cruises’.107 A change, however, occurs once parents die. Once the parent has no further requirements because of death, in ascertaining what the community would consider to be the deceased’s moral duty, the factors that were real during the parent’s life are necessarily excluded.108

Any general rule regarding adult sons/children? 18.23 The foregoing serves to explain, in part, why the law once adopted a rule that practically prevented ordering provision for an adult son who was fit to work.109 This is clearly no longer the case.110 Not only is such a rule inconsistent with the discretion vested by the terms of the legislation,111 modern community standards, aside from fostering gender equality,112 arguably recognise a broad conception of moral obligation by parents to their children, one that does not terminate upon the children reaching full age or independence. But the law does not appear to have wholly divested itself of some predisposition against the claims of adult sons, at least where there are claims on the deceased’s estate from others with an ostensibly greater ‘need’, [page 631] and the estate is insufficient to meet all claims. To this end, the following remarks of Fullagar J in Re Sinnott, uttered in 1948, continue to hold sway, at least in the minds of some judges:113 No special principle is to be applied in the case of an adult son. But the approach of the court must be different. In the case of a widow or an infant child, the court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported. But an adult son is, I think, prima facie able to ‘maintain and support’ himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the court under the Act.

‘Special claim’ or ‘special need’ as a prerequisite? 18.24 A ‘special claim’, it has been suggested, may be found where the applicant has contributed to building up the deceased’s estate or has assisted the deceased in other ways.114 For example, an able-bodied adult child may have a claim to provision in circumstances where he or she has contributed in a not insignificant way to the family business or family property.115 The cases reveal claims by (usually) sons who have worked the family farm for a substantial period, but are deprived of the prospect of maintaining their livelihood, by the terms of their parent’s will or the rules of intestacy. Though there are no set rules entitling sons of farming parents to inherit the farm to

the exclusion of their siblings,116 clearly relevant to the quantum of provision granted is the substantiality of their contribution to the farm, balanced against the siblings’ contributions and needs.117 18.25 A ‘special need’ may lie in an applicant who suffers from some physical or mental infirmity. Certainly, a disabled adult child presents a strong claim on the parent’s estate. Indeed, it has been said that ‘[o]rdinarily, when one has a very disabled person, it does not take much for one to draw the conclusion that that person should have the whole estate’.118 Even so, if providing the whole or a substantial portion of the estate to the child serves no real advantage because care is better provided under the auspices of a dedicated facility, the court may resile from such an order.119 A ‘special need’ may also arise out of a financial setback, an inability to obtain secure paid employment or dependants for whom the child cannot adequately provide. The leading case is Hughes v National Trustees, Executors & Agency Co of Australasia Ltd,120 where the testatrix made no provision for her only child, an able-bodied son aged 54, who had virtually no income or assets, [page 632] but a de facto wife and dependent child. The son had for years lived, free of charge, on a farm property, being the principal asset of the testatrix’s estate, which he had done little to improve. Gibbs J, with whom Mason, Murphy and Aickin JJ agreed, remarked that ‘if a son is mature, able-bodied and capable of supporting himself he may in those circumstances be in no need of maintenance or support’.121 But the lack of evidence that the son could readily find employment, coupled with his poor financial circumstances and the assumption, induced by his parents, that he would one day inherit the farm, led the court to conclude that the testatrix had failed to make adequate provision for his proper maintenance and support. Gibbs J reasoned that ‘wise and just parents, having allowed him to base his life on that foundation would not years later attempt to deprive him of what had become necessary for the support of himself and the family’.122 Cases such as Hughes highlight the opinion expressed by a Tasmanian judge

that ‘a caring and fair parent could be expected to make provision for a child rendered disadvantaged by reason of incapacity, misfortune, chosen relationship and the like, irrespective of age’.123 It should not be assumed, though, that the outcome in Hughes — the court ordered that the net residue of her estate be held upon trust to pay the same to the son — would as a matter of course follow in other cases. It was the absence of competing claims on the bounty of the testatrix, aligned with the fact that the intended beneficiary of the testatrix’s will was a charity, to which the law assumes she owed no moral duty,124 that justified this order. There is, generally speaking, no moral obligation on a parent to provide unencumbered housing for their children.125

Move away from requiring a ‘special claim’ or ‘special need’ 18.26 Although Hughes is sometimes viewed as wholly supportive of the ‘special claim’ or ‘special need’ approach,126 Gibbs J there disclaimed any rigid rules, and said that whether adequate provision was made for an adult son’s proper maintenance and support depends on all the circumstances.127 Just as any inflexible rule against denying an able-bodied son a claim to provision has yielded to an approach more flexible, the modern law has moved away from requiring proof of a ‘special claim’ or ‘special need’ for an able-bodied adult son (or daughter) to secure provision. Indeed, decisions requiring proof of this kind as a prerequisite to an order, the New South Wales Court of Appeal observed in 2005, ‘belong to past times and do not express the values of the present age’.128 Nearly 20 years earlier Kirby P in the same court saw a ‘special claim’ or ‘special need’ approach as perpetuating a ‘now discarded categorisation’, for the following reasons:129 There is no warrant for it in the Act. It limits, in an unnecessary and artificial way, the consideration of all of the circumstances of the case. It frustrates the object of the statute. It diverts attention from the focus which the Act requires upon the proved needs of the applicant and a comparison of those needs with the provision made by the will.

[page 633] And whereas ‘special need’ historically had often been readily recognised in the case of unmarried daughters — as opposed to married daughters supported

by a husband — today there is no such assumption. The case law instead reveals a general acceptance that, when determining whether a claimant who is a mature child has been left without adequate provision, it is unnecessary to show a ‘special need’ or ‘special claim’.130 There is now no difference, at least as a starting point, between an adult son and an adult daughter in this regard, a change attributed by some to changes in social circumstances and family living standards.131 18.27 In Victoria, as a result of Re Sinnott132 the focus on a ‘special need’ or ‘special claim’ took longer to dissipate. But 1998 amendments to the Victorian statute — which introduced a list of factors to which courts were directed in assessing family provision applications,133 and made no mention of an applicant’s gender as a relevant factor (the substance of which remain in its current iteration) — presented Victorian courts with a driver to move beyond Re Sinnott.134 And by stipulating the matters to which the court must have regard in its inquiry, the Victorian Court of Appeal has ruled that ‘the legislature has made it apparent that the court should not approach these matters with [a] pre-disposition’ based on gender or age.135 It added that, although it may be difficult for an adult son or daughter who is in an independently sound financial position to establish the jurisdictional requirements, there is no requirement that he or she show some special need or claim before succeeding on those issues.136 18.28 The age (although arguably not the gender) of the applicant does, however, remain relevant to the exercise of both the jurisdictional and discretionary stages of the court’s judgment. It is expressly identified as a relevant factor in the New South Wales and Victorian legislation,137 presumably to target the needs of applicants who are under-age, and therefore are likely to be dependent on a deceased parent or relative for maintenance and support. Contributions by an applicant to a deceased’s estate are also listed amongst the factors relevant to the court’s assessment in the Australian Capital Territory, New South Wales and Victorian legislation.138 In each case the statutory factors largely replicate the general law. So although a ‘special need’ or ‘special claim’ is not a threshold an adult child must overcome to secure provision, evidence of a ‘special need’ or ‘special claim’ may prove persuasive in leading the court to order provision in his or her favour. Brereton J in 2009 illustrated the point as follows, in language redolent of a ‘special need’ or

‘special claim’:139 [I]f an adult child remains a dependent [sic] of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute.

So although no special principle applies to the claim of an adult son (or daughter) — the question remains whether adequate provision has been made for the claimant’s proper maintenance — the circumstances of an adult son (or daughter), and his or her relationship [page 634] with a deceased parent, will differ from the circumstances and relationship of a child to that parent. For that reason an adult child is likely to be treated differently. It is because the child’s circumstances, and relationship with the deceased parent, are different; it is not because he or she is an adult.140 Expressed another way, although ‘a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed’, ‘the community does not expect a parent to look after his, or her, child for the rest of the child’s life and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so’.141 Ultimately, therefore, the difference between the opposing views — on whether or not a ‘special need’ or ‘special claim’ is necessary — may not be substantial for practical purposes.

Assisting ‘lame ducks’ 18.29 Gibbs J in Hughes v National Trustees, Executors & Agency Co of Australasia Ltd142 cited with approval the remark of Philp J, uttered over 35 years before, that ‘[a] just father’s moral duty is to assist the lame ducks amongst his offspring, provided they are not morally or otherwise undeserving’.143 The applicant in Hughes, discussed above,144 could have been described as a ‘lame duck’. But Philp J’s remark arguably has greater weight

where competing claims exist, usually from the applicant’s siblings, on the deceased parent’s estate. Although an applicant’s ‘character and conduct’ is relevant to a claim for provision,145 the phrase ‘lame duck’ carries the notion that, for whatever reason, the applicant has greater need for support than his or her siblings. That an applicant has been ‘perhaps … unenterprising, perhaps inefficient, perhaps unlucky’146 is, therefore, not a ground per se to deny him or her provision if, compared to the siblings, he or she is in need.147 And the case for provision is stronger where the deceased parent has been in some way causative of the applicant’s position. For example, in Stott v Cook148 the applicant had, in the words of Kitto J, ‘got nowhere financially’ and was ‘having a very hard time’. The evidence revealed that the testator had let the applicant leave school at the age of 14 and ‘had alternately put him and employed him in blind alley occupations, and had equipped him while he was young with neither training nor capital’.149 This led his Honour to conclude that, in the circumstances, a wise and just testator [page 635] ‘could not have sat down to dispose of [his] estate … without feeling driven … by a sense of moral obligation to make some provision towards alleviating the applicant’s plight’.150 18.30 Cases of this kind may, Ormiston J said in Collicoat v McMillan,151 involve a testator who ‘over-emphasises a child’s deficiencies in the latter years of his or her life and tends to ignore those factors, especially of training and opportunity which are so frequently moulded by a parent’s influence, so that their claims for proper provision are either entirely or significantly overlooked’. Collicoat involved a claim by, inter alia, the testator’s son, who had worked, for modest recompense, on his parents’ farm for over 30 years. Although the applicant left the farm for the final 10 years of the testator’s life, Ormiston J held that a wise and just testator should have provided more than one-seventh of the estate for the applicant, even as compared to the competing claims by the latter’s sisters and nephew. In addition to being influenced by the

applicant’s significant contribution to the estate, his Honour’s view of the applicant as the ‘lame duck’ of the family led to this finding. In particular, the applicant was described in the following terms, which linked his financially parlous position (he was bankrupt at the time) to the conduct of the testator:152 … he was a person who had never really made a success of life, a person whose lack of success may well have been engendered by the rather bare subsistence that he earned on the farm at the hands of his mother and a person who when he found all this too much and his marriage broke up was unable to cope, lost all his meagre assets, became bankrupt and was reduced to earning a desultory living on an ad hoc basis and relying only on his unskilled talents.

Scope of parental duty 18.31 While the case law clearly recognises, in the usual case, a moral obligation by a parent to make provision for his or her children, the scope of this obligation varies according to the circumstances. The size of the estate,153 the ‘need’ of a particular applicant as compared to competing claims154 (commonly by siblings or the deceased’s spouse or partner), the contributions by the applicant to the deceased’s estate (or vice versa),155 and the relationship between the applicant and the deceased,156 are all factors, amongst others, capable of influencing the scope of the parent’s moral obligation to provide.

Housing? 18.32 Whereas the case law supports the proposition that, if the estate is sufficient, a deceased is morally obliged to provide his or her spouse or partner with suitable housing,157 the same cannot be assumed vis-à-vis the child of the deceased. The parental obligation is [page 636] different, ordinarily, from a spousal obligation in this regard. In Taylor v Farrugia Brereton J explained the point as follows:158 It is impossible in this area to describe in terms of universal application the moral obligation or community expectation of a parent in respect of an adult child. I think, however, it can be said

that ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life — such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation.

The New South Wales Court of Appeal had, in similar vein, earlier ventured the view that ‘probably in the majority of cases’ the circumstances will not justify an able-bodied child being ‘entitled’, via provision from his or her parent, to a house or money to buy one.159 But there are occasions, often those involving what the law has characterised as a ‘special claim’ or ‘special need’,160 where a parent’s moral obligation has been held to extend to providing unencumbered housing for a child. This occurred in Re Sherborne Estate,161 as a result of the daughter’s medical condition, and in Alquist v ANZ Executors and Trustee Company Ltd,162 in which the deceased had done nothing to encourage her son to take on any responsible role as an adult. That a parent has purchased a house for the child may, if the estate can afford it, bring with it a moral duty to leave provision for its maintenance where the child is dependant or otherwise in need.163

Items on a ‘wish list’? 18.33 There is a difference between an applicant’s ‘need’ — albeit one that is relative to the circumstances — and what he or she may wish to receive as provision from a deceased parent’s estate. The court will not accede to an applicant’s ‘wish list’, even if the estate can fulfil those wishes in the face of competing claims, if in the circumstances those wishes seek ‘demonstrably more’ than he or she needs.164 In Khoury v Public Trustee,165 for example, McLaughlin AsJ saw no reason why the applicant — who saw the deceased as a father figure — should require a residence at the expense of the estate of the deceased, that it should be located in a particular (salubrious) suburb, or that the applicant should be looking to the estate to fund the purchase [page 637]

of a $50,000 motor vehicle, when a vehicle adequate for his needs could be purchased for less than half that amount. His Honour instead made an order for $150,000, a sum that would enable the applicant ‘to enhance his frugal and modest lifestyle, to acquire some necessary items of furniture and furnishings, as well as replenish his wardrobe, and to provide a fund to meet unexpected contingencies, as well as, if he so desires, to acquire a relatively inexpensive motor car’.166 Consistent with the tenor of the foregoing, there is no moral obligation on a deceased to make provision so that their children can maintain an otherwise unsustainable lifestyle.167

Cases involving ‘bare paternity’ 18.34 Some of the older case law contains statements that, on one interpretation, could be understood to mean that, if there is nothing more than ‘bare paternity’ in the relationship between the applicant and the deceased, the applicant cannot succeed. The remarks of Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales168 may be amenable to such an interpretation. The facts revealed, according to his Honour, ‘the bare fact of paternity and no other mutual relation’,169 as the deceased separated from his wife shortly after the applicant’s birth, and the applicant lacked any conscious recollection of ever seeing his father. The deceased died some 50 years later, making no provision for the applicant. Dixon CJ refused the claim, noting the following:170 If one really considers the situation of this old man in the closing stages of a long life in which his son has played no part at all, a son to whom his father has meant nothing and who did not even know him, it is hard to see why the testator, in the interest of his son, should be deprived of his complete freedom of testamentary disposition.

The above observations, to the extent that they suggest that ‘bare paternity’ cannot provide grounds for provision, have been superseded. In 1989 Bryson J described them as reflecting ‘a view of the moral obligations of a parent which differs … from the almost universal view of the Australian community’.171 His Honour added that the idea that the moral obligations arising from paternity diminish or disappear if the parent withholds acknowledgment of the obligations or of the child ‘appears to me to be an idea from a distant age’. Instead, he regarded the bare fact of paternity as of ‘very great importance in

morality’.172 Nearly 20 years later, these remarks were endorsed by the New South Wales Court of Appeal in Nicholls v Hall,173 where their Honours remarked that ‘[e]ven if a deceased never even knew of the existence of a child, if that child had a strong case on the other factors (that is, needs, size of estate and lack of competing claims), a court could find that that child was left without adequate provision for proper maintenance’.174 The testator in Nicholls did not know he was the father of the applicant until the latter was aged 36 years. Attempts by the applicant to activate the relationship proved only partly successful, and the relationship remained distant. [page 638] Yet the court awarded the applicant one-seventh of the deceased’s estate. In so doing, the court gave effect to the view expressed over 25 years earlier that, as ‘the parent [i]s responsible for bringing the child into the world’, he or she ‘assume[s] a duty to be concerned for the child’s welfare’.175 Indeed, on some occasions it may be that the deceased’s abnegation of parental responsibility increases, not diminishes, the moral obligation to make adequate provision for his or her child.176 18.35 The foregoing, though, assumes that the child has ‘need’ for provision. A claim merely based on being the child of the deceased, whether or not there has been an ongoing relationship between the parties, is unlikely to succeed if the applicant has substantial assets,177 especially where those assets have been accumulated in part as a result of opportunities supplied by the parent(s)178 or there has been deliberate estrangement from the deceased.179

Provision for Grandchildren Eligibility to apply 18.36 In the territories and South Australia, a grandchild of the deceased comes within the list of persons eligible to apply for provision.180 In New

South Wales and (as from 1 January 2015) Victoria181 a grandchild is only eligible to apply for provision if he or she was, at any particular [page 639] time, wholly or partly dependent on the deceased.182 In Western Australia a grandchild has standing in two circumstances: if he or she was, at the time of the deceased’s death, being wholly or partly maintained by the deceased; and if his or her parent (being the child of the deceased) died before the deceased.183 The Queensland and Tasmanian statutes make no reference to grandchildren as applicants for provision,184 although there remains scope in Queensland for grandchildren to apply if they can come within the concept of a ‘dependant’ of the deceased.185

Judicial attitude to applications 18.37 That a grandchild may, except in Tasmania, have a means to secure standing to apply for provision out of a grandparent’s estate does not mean that courts are welcoming to ‘generation-skipping orders’.186 The ‘relative remoteness’187 of the grandparent-grandchild relationship dictates that no moral obligation lies in grandparents to provide for the maintenance and support of grandchildren simply by virtue of that relationship.188 The relevant moral obligation, according to ordinary community standards, instead rests on the parents, who have brought the child into the world. This explains why, for instance, parental dissociation from offspring does not preclude a family provision order (and indeed may justify one),189 whereas the same dissociation by a grandparent will likely do so.190

Approach as between jurisdictions 18.38 In the territories and South Australia, where the legislation stipulates no conditions relating to dependence or the like upon a grandchild’s application for provision, a more generous approach may prevail. For instance, in Wall v Crane191 the South Australian Supreme Court envisaged that in

particular circumstances the blood relationship can give rise to a valid moral claim by a grandchild on the bounty of the deceased, and although that claim ‘may be less than that of the deceased’s own children’, it may nevertheless be a valid moral claim. White J was satisfied on the facts that the applicant, who was the deceased’s grandchild, had a valid moral claim on his grandfather’s bounty even absent ‘a developed relationship between the two of them’.192 This stemmed from a finding that, when the applicant was 3 years old, his father had taken no interest in him or in his upbringing, and there was no foreseeable prospect that the father would take any such interest. As a consequence, a ‘just and wise’ testator in the deceased’s position would have recognised that some specific provision should be made for the applicant, thus distinguishing the applicant’s position from that of the deceased’s other grandchildren.193 That the applicant was still young, and only part way through his education, [page 640] no doubt influenced White J’s decision, although his Honour added that the quantum of provision ‘should reflect the relative remoteness of his relationship with the testator’.194 18.39 In New South Wales, Queensland and now also Victoria, assuming similar facts, the same outcome would have been unlikely. After all, the facts in Wall v Crane revealed no apparent dependency by the applicant on the deceased. The requisite dependency is more likely to surface in circumstances where the relationship is quasi-parental in nature. So in Fede v Dell’Arte195 the applicant, who while a minor lived in the home of her grandfather (the deceased) for 11 years, was held to have been dependent on the deceased. Finding that the deceased’s bequest of $50,000 to the applicant was inadequate, Hallen AsJ ordered an extra sum of $265,000 from the deceased’s $2.8m estate. That the applicant’s mother had suffered mental illness and her father had assumed very limited parental responsibility no doubt influenced this finding. In Re Rodi (deceased)196 a family arrangement where the applicant lived with his grandmother, as a ‘surrogate son’, for a decade until her death, in a ‘direct, immediate, socially intimate and sustained’ relationship that

involved ‘a personal bonding beyond merely a blood line’, was held to establish both eligibility for provision and an order equating to 14 per cent of the estate. The nature of the relationship outweighed the fact that the applicant was an adult when the habitation commenced, and at his grandmother’s death was able-bodied, and had $100,000 in superannuation as well as a half share in an investment property. 18.40 That in Western Australia a grandchild may apply for provision, not only where he or she was being wholly or partly maintained by the deceased at the date of the latter’s death, but also when his or her parent who was a child of the deceased has died, has led courts in that jurisdiction to eschew any principle that grandchildren rank less favourably than the deceased’s own children in family provision claims.197 And at least under the second limb of the standing requirements, there is accordingly no need for an adult grandchild to establish a ‘special need’ or ‘special claim’ in order to succeed in an application for provision.198 It nonetheless remains relevant that the applicant is a grandchild rather than a child, at least to the extent that the characteristics of a child-parent relationship are ordinarily different from those of a relationship between grandparent and grandchild.199 18.41 Prior to 1 January 2015, where in Victoria the relevant inquiry was whether the grandparent ‘had responsibility to make provision’ for the applicant, case law consequently targeted what goes to establishing this responsibility. It indicated that, in line with the position elsewhere, if children were in the primary care of their parents or other family, who were capable of fulfilling their basic needs, prevailing community standards did not, in the usual case, impose on a grandparent a responsibility to provide.200 Assumption of a parental role of [page 641] provider could prove a strong prima facie indicator of a responsibility,201 although the case law envisaged instances where responsibility could accrue even outside of a de facto parental role, such as where ‘a grandparent of ample means has done nothing during life to assist a grandchild who has significant

needs’.202 The latter is unlikely to translate to the current Victorian regime.

Where the child’s parent is deceased or dissociated from the child 18.42 That a grandchild’s needs are heightened by being abandoned by a parent, or by reason of the death of a parent, is a factor that may go to founding a moral duty to provide in a grandparent who assumes parental-type responsibility. In Ng v Morgan,203 where the deceased had for the last 8 years of her life filled the parental gap left when her grandchildren’s mother abandoned the household, Slattery J ruled that the grandchildren ‘should be judged … more analogously with children’, such that the case ‘has special features that distinguish it and place [them] in an unusually close role in relation to their grandmother’. His Honour ordered that the grandchildren take an equal unemcumbered share in their grandmother’s home. In any event, the finality surrounding a parent’s death, accompanied by a razed expectation of ‘downstream inheritance’,204 may present a basis for provision from a grandparent’s estate. In Petrucci v Fields,205 against the backdrop of the death of the applicants’ father, which triggered a need for provision for their long-term security, Mandie J ruled that ‘according to prevailing community standards and as a matter of moral responsibility to them, their grandfather ought to have made some provision for them’. Kaye J in Day v Raudino206 found it arguable that the deceased’s grandchildren, who had lost their father at a young age and, though now adults, remained in financial need, had a claim to provision from their grandfather’s estate. What influenced his Honour to so conclude appears from the following extract:207 When the plaintiffs’ father died, they were both young infants. At that time, the plaintiffs’ father had only worked on the testator’s farm. He was an alcoholic. As young children, the plaintiffs had been left with little support from the estate of their late father. In those circumstances, a wise and just grandfather might well regard it as his moral obligation to make some provision for his late son’s children, particularly given that, at that time, they themselves were raising young children with limited financial resources. In my view, there is at least a tenable argument that a wise and just grandfather, whose alcoholic son had died young leaving infant children of his own with little support, would consider it his moral duty to remedy that circumstance, by himself making some provision for his late son’s children, particularly where his son had worked with, or for, him for some time, and particularly where the grandchildren were themselves of limited means. That argument is fortified by the circumstance that the testator’s estate was itself reasonably large, and was certainly sufficient to enable the testator to make some provision for the plaintiffs.

[page 642] More recently, in Re Davies208 McMillan J ruled that by leaving almost her entire estate to her sole surviving son, where her other two sons had suicided, the deceased had not fulfilled her responsibility to the offspring of one of her deceased sons.

Pattern of generosity insufficient 18.43 Outside of a parental-type relationship or genuine need, a grandparent’s pattern of generosity, say by making gifts to grandchildren or contributing to their education, does not convert the relationship into one of moral responsibility to make testamentary provision, as ‘distinct from one of voluntary support, generosity and indulgence’.209 So in MacEwan Shaw v Shaw,210 where the facts revealed no direct dependency by the infant grandchildren upon their grandparents, but instead revealed gifts and benefits that though generous in no way exceeded those typically conferred by many caring grandparents, Dodds-Streeton J concluded: The familial generosity of a grandparent should not, in the absence of other relevant circumstances, be recognised as the basis of a direct responsibility to make further, testamentary provision for the private education of a grandchild who is in parental care, particularly when the grandparent’s chosen beneficiary is his or her surviving spouse of longstanding. The fact that the child’s parents are of modest means, while the estate could satisfy the claim without significant adverse impact on the chosen beneficiary, will not, without more, found a grandparental responsibility to provide maintenance and support.

Relevance of provision for parent for benefit of grandchild 18.44 In making an order for provision for a son or daughter of the deceased, a court may include within its terms an amount to benefit the children of the son or daughter. In this sense, the applicant remains the child of the deceased, but the order for provision is directed to a need of the child to provide for his or her own child (the grandchild of the deceased).211 It follows that, although an order for provision is made upon the basis that the applicant has been left without adequate provision for his or her own maintenance, the responsibilities of an applicant for others can impact upon this determination. The flipside is that, when a will makes provision for a grandchild, on an

application for provision by the child’s parent the indirect benefit the latter may receive as a result of the testamentary provision for the grandchild can be taken into account.212 In McCarthy v McCarthy,213 a case involving limited claimants, and other beneficiaries who were reasonably well off, the New South Wales Court of Appeal found no error in the trial judge’s allowance for the costs of educating the deceased’s grandchildren at a private school.214 Young JA added, by way of dicta, that ‘there may very well be a considerable proportion of grandparents in the community in the 21st Century who need to give consideration to the [page 643] education of grandchildren’.215 This decision must, however, be seen against the backdrop of a large estate. It is not authority for the proposition that the law imposes on grandparents a moral duty to make testamentary provision for their grandchildren generally, or even merely for their education. And it is not authority for the proposition that adequate provision for proper maintenance necessarily includes the costs of private education.216

Provision for Stepchildren Eligibility to apply 18.45 The family provision legislation in the territories, Queensland and Tasmania lists a stepchild of the deceased as eligible to apply for provision, without qualification.217 In South Australia and (as from 16 January 2013) Western Australia a stepchild has standing if he or she was (entitled to be) maintained wholly or partly by the deceased immediately before his or her death.218 There is, in Western Australia, also an avenue for standing for a stepchild of the deceased where the deceased received or was entitled to receive property from the estate of a parent of the stepchild, otherwise than as a creditor of that estate, if the value of that property, at the time of the parent’s death, exceeds the prescribed amount.219

Prior to 1 January 2015, in Victoria the relevant inquiry — whether an applicant is ‘a person for whom the deceased had responsibility to make provision’220 — provided an opportunity for the stepchild of a deceased person to come within the bounds of provision. After that date, when the Victorian legislation was amended to list classes of eligible persons,221 a stepchild of the deceased who, at the time of the deceased’s death, was ‘under the age of 18 years’, ‘a full-time student aged between 18 years and 25 years’ or ‘a stepchild with a disability’ is explicitly made eligible to apply for provision.222 A stepchild who falls outside these classes is also eligible,223 but the amount of provision is influenced by the degree to which he or she ‘is not capable, by reasonable means, of providing adequately for [his or her] proper maintenance and support’.224 As, in each of the above jurisdictions, statute envisages that a deceased’s de facto or domestic partner may apply for provision from the deceased’s estate, it stands to reason that the reference to stepchildren is not confined to the children of the deceased’s spouse but can encompass the children of the deceased’s de facto or domestic partner should that relationship remain on foot at the deceased’s death.225 The New South Wales legislation makes no specific reference to stepchildren, but provides for standing in a person ‘(i) who was, at any particular time, wholly or partly dependent on the deceased person; and (ii) who … was, at that particular time or at any other time, a member of the household of which the deceased person was a member’.226 Depending on the circumstances, this may encompass a stepchild of the deceased. [page 644]

Relevant considerations 18.46 That many of the cases involving applications for provision by stepchildren have emanated from New South Wales — where standing is limited to circumstances of dependence and linked to household membership — does not preclude the relevance of these decisions to claims by stepchildren elsewhere. The factors identified by Cohen J in Graziani v Graziani227 were

identified by a Queensland judge ‘as a matter of common sense’ as the sort of factors that would also be relevant in determining whether adequate provision had been made from the estate of the step-parent for the proper maintenance and support of the stepchild.228 These factors were the closeness of the relationship (that is, whether it can be properly described as parent and child; that is, in loco parentis), whether the applicant was raised as a permanent member of the family, the applicant’s age when he or she became a member of that family, and the extent to which the deceased supported the applicant. To these may be added the applicant’s ‘need’ and any contribution to the stepparent’s estate; positive findings as to these matters may outweigh a more distant relationship between the deceased and the stepchild. As explained by Keane JA in Freeman v Jaques:229 The more exiguous and distant the familial relationship between the deceased and a claimant, the greater must be the need of the claimant for maintenance or support if it is to give rise to the obligation, postulated of a wise and just stepmother, to make adequate provision for the proper maintenance or support of the claimant. Similarly, the greater the extent to which a stepparent’s estate reflects her own contributions and efforts, the greater must be the need in the claimant for maintenance or support if a stepmother is to be regarded as subject to a moral claim to make adequate provision for proper maintenance and support.

In Graziani v Graziani230 Cohen J distinguished ‘those who were raised as part of the family as stepchildren’ from applicants ‘at the other end of the spectrum who may have been members of the family for only a brief period and with only limited dependence’. In Re Fulop (deceased) ,231 for example, the evidence revealed that from the age of 4 years, following the death of his mother, the applicant became a child of the family unit comprising his father and new stepmother (the deceased), and remained so until he left home at 18 years of age in the normal course. Thereafter the family relationship thus established was recognised on all sides as continuing as if the applicant were a child of the deceased as well as his father. This inclined McLelland J to grant the applicant provision from the deceased’s estate, an outcome bolstered by the fact that the applicant had received nothing from his father’s estate whereas the main asset of the deceased’s estate was acquired from funds derived substantially from moneys earned by the applicant’s father.232 18.47 As to the latter, it has been judicially observed that, in circumstances where the entire estate of the applicant’s natural parent had earlier been bequeathed to the step-parent, ‘one may more readily conclude that a wise and

just step-parent would recognise a moral claim in a stepchild to maintenance or support from an estate which was derived, in whole or in part, [page 645] from the stepchild’s natural parent’.233 The case law contains various other occasions where this has proven influential in the court’s decision to order provision in favour of a stepchild, albeit most commonly aligned to circumstances where the relationship between the deceased and the stepchild was akin to parent and child.234 In circumstances where the relationship between step-parent and stepchild is familial in nature, the stepchild may be less inclined to seek provision out of his or her natural parent’s estate, and in so doing challenge the surviving step-parent’s entitlement under the natural parent’s will, than in circumstances where the relationship was distant or acrimonious. But even without a familial relationship with stepchildren, it has been observed that ‘a stepparent who has benefited financially from his or her spouse should consider the plight of those stepchildren who have real need of support’.235 In any event, it cannot be assumed that the deceased’s provision for his or her spouse or partner will translate to the latter making adequate providing for the deceased’s children;236 the surviving spouse or partner may, after all, enter into a new relationship, or have his or her own children, or for some other reason have little inclination to benefit the deceased’s children. Moreover, a possible future inheritance may not adequately provide for present needs of the deceased’s children.237

Quantum of provision 18.48 The quantum of provision granted to a stepchild depends on, inter alia, the size of the estate, the nature and extent of any competing claims, the nature and duration of the relationship with the deceased, the stepchild’s need and, as noted above, the derivation of the step-parent’s estate. In Smilek v Public Trustee238 each of the deceased’s two middle-aged stepsons, who had

insufficient provision for retirement, were granted one-half of the estate. What influenced the New South Wales Court of Appeal to so order was that each applicant had a close relationship with the deceased and made significant nonfinancial contributions to his welfare and, importantly, that there being no other claims on the deceased’s bounty, the estate would otherwise pass to the Crown as ownerless goods (bona vacantia).239 18.49 But Smilek hardly represents the usual case, or the usual outcome. There are ordinarily other claimants on a step-parent’s estate, whether as beneficiaries of the will or as persons with standing to seek provision. The case law indicates that, depending on the circumstances, courts are not necessarily as generous in making provision for stepchildren as for the natural children [page 646] of the deceased. The assumption is ostensibly that the moral claim of natural children is, in the usual case, more compelling than that of stepchildren. As explained by Crisp J in Re Lockwood:240 The step-relationship is obviously a factor which may affect, in degree according to the circumstances, the moral obligation of the testator on which jurisdiction to make an order depends. Hypothetically, it may justify differential provision both by the testator and the Court between classes of children, though of course whether this should be done in any given case will depend on such matters as the respective ages at which the relationship was assumed, the extent of other existing provision for step-children, the actual degree of dependence, the extent to which responsibility for maintenance and advancement has been assumed by a step-parent, and a host of other factors. No principle as to the weight to be assigned to it can be laid down, it is simply a factor to be taken into account and I so regard it.

This notion of ‘differential provision’ should not be seen as a matter of principle, but as a shorthand way of acknowledging that in some instances the circumstances of the stepchild’s relationship with the step-parent may differ from the relationship of the natural child with the same parent in ways that are relevant to both the jurisdictional and discretionary stages of the court’s inquiry.241 Scope for differential provision may emanate from a finding that the relationship was ‘one more of general friendliness than of the love and affection which might have been established between the testator and one of his children’.242 Or, even in a parent-like relationship, the court may

nonetheless conclude that an applicant’s status as a stepchild should not, as against competing claims, entitle him or her to substantial provision. For example, in Petrohilos v Hunter243 the applicant lived with her father and stepmother from ages 5 to 18, her position being described as ‘virtually indistinguishable in important respects from that of a child of the deceased’. Yet the court awarded the applicant, whom the court branded as ‘exist[ing] (in a financial sense) but that is all’,244 only a $20,000 legacy out of a $300,000 estate, which the deceased had bequeathed to her nieces. Had the applicant been a natural child of the deceased, her moral claim as against the nieces would likely have been more compelling.

Provision in Other (Family-type?) Relationships 18.50 Outside of relationships of a spousal or parental-type nature, the scope for applications for family provision depends on the relevant jurisdiction. In the territories, Queensland, South Australia, Tasmania and Western Australia a parent of the deceased has standing to apply for provision, although this is subject to conditions other than in the territories.245 In Queensland proof is needed that the applicant was ‘wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death’. The applicant must have ‘cared for, or contributed to the maintenance of, the deceased person during his lifetime’ in South Australia. In Tasmania, the parents of a deceased person may apply ‘if the deceased person dies without leaving a spouse or any children’. In Western Australia, the relationship must have been ‘admitted by the deceased being of full age or established in the lifetime of the deceased’. [page 647] The Queensland legislation also envisages that a person who was being wholly or substantially maintained or supported, other than for full valuable consideration, by the deceased at the time of the latter’s death may apply for provision if he or she is under the age of 18 years or is otherwise the parent of a surviving child under the age of 18 years of the deceased person.246 In South

Australia ‘a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime’ is eligible to apply for provision.247 Scope for standing outside the spousal or parental context in New South Wales is premised on the applicant being, at any particular time, wholly or partly dependent on the deceased and, at that particular time or at any other time, a member of the household of which the deceased was a member.248 The potential for inclusion of eligible applicants under this head has been described as ‘enormous’, being capable of including parents, brothers and sisters, temporary foster children and others who may have formed part of the household and for a period have been partly dependent upon the deceased.249 18.51 As a result of amendments effected, as from 1 January 2015, by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic), Victoria reintroduced a list of ‘eligible persons’ in place of the post-1998 eligibility being premised on ‘whether the deceased had responsibility to make provision’ for the applicant.250 Although the 1998 initiatives aimed to widen the pool of potential applicants, and the return to an ‘eligible person’ schema was intended to constrain eligibility to apply for provision, this schema remains one with considerable breadth. Included within the class of eligible persons are:251 • a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated by the deceased as his or her natural child;252 • a registered caring partner253 of the deceased;254 • a spouse or domestic partner of a child of the deceased (including a stepchild or a person referred to in the first dot point) if the child of the deceased dies within 1 year of the deceased’s death; • a person who, at the time of the deceased’s death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member. For the last three dot points, eligibility is premised on the person having been wholly or partly dependent on the deceased for his or her proper maintenance and support,255 and the

[page 648] amount of provision that may issue is to be proportionate to the degree of the said dependency for the person’s proper maintenance and support at the time of the deceased’s death.256 18.52 The current Victorian statutory eligibility schema nonetheless remains more constrained in scope than its predecessor. It does not, for instance, envisage standing by more distant relatives — such as nephews and nieces, except to the extent that they can come within the first dot point in the preceding paragraph — which had (albeit infrequently) come within the former regime. A successful claim was made in Iwasivka v State Trustees Ltd,257 involving an application by the deceased’s niece by marriage, who on coming into the household of the deceased and her uncle as a child was welcomed, treated and nurtured as a daughter by the deceased. The evidence further revealed that the applicant and the deceased had the mutual benefit of that relationship during the applicant’s most important and formative years. An absence of competing claims to the deceased’s estate, coupled with the fact that the applicant was in financial need,258 led Hansen J to grant her $700,000 out of a $1.2m estate, to provide an amount ‘to enable her to purchase her own accommodation and leave her with a fund as a measure of security for future expenses and contingencies’.259 But even under the pre-2015 regime, a mere claim of a close familial-type relationship did not, without more, fulfil the statutory threshold. In Jackson v Newns,260 where the deceased’s nephew alleged that he viewed the deceased as a ‘father figure’, Mukhtar AsJ ruled that this did not mean that the deceased assumed a paternal responsibility, as ‘[a]n uncle can develop and [sic] affectionate and enduring relationship with a nephew without apprehending the law might impose a responsibility to provide for him’. The facts disclosed ‘a relationship with a mentor of sorts’, where the applicant had, mostly during his school years, performed voluntary work on the deceased’s farm ‘borne of affection and part of the togetherness with his uncle’.261 His Honour added that the law ‘does not transform a great relationship into … a moral responsibility to provide’262 and, in another case where a nephew’s standing was refused, remarked that ‘[a]n uncle ought to be able to develop a

relationship with a nephew without apprehending the law might impose a responsibility to provide for him’.263 It proved more challenging again, to this end, for a family friend of the deceased to sustain a claim for provision, at least without evidence of either a quasi-familial relationship from an early age (as in Iwasivka) or the making of substantial contributions to the deceased’s estate and/or welfare.264

1. 2.

3.

4. 5. 6.

7. 8. 9. 10.

11.

See 15.7. See, for example, Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134; BC7900037 (discussed at 18.25); Hoadley v Hoadley (SC(NSW), Young J, 17 February 1987, unreported) BC8701583 (discussed at 19.25). Cf where the estate is large and can accommodate all claims, including those of charities: see, for example, Auckland City Mission v Brown [2002] 2 NZLR 650 (where the applicant’s provision was increased in view of the large size of her late father’s estate, but only to about 20 per cent of that estate, leaving the remainder for the deceased’s stated charitable objects; in so ruling, Richardson P (at [41]), who delivered the judgment of the court, endorsed the observation of Reed J in Pulleng v Public Trustee [1922] NZLR 1022 at 1029 that ‘[a] bequest to charity is very fitting in the case of a testator who has ample means and can make such bequest without inflicting hardship on his own family’). Tataryn v Tataryn Estate [1994] 2 SCR 807 at 823 per McLachlin J, delivering the judgment of the court (‘Where priorities must be considered, it seems to me that claims which would have been recognized during the testator’s life — ie, claims based upon not only moral obligation but legal obligations — should generally take precedence over moral claims’). (2007) 99 SASR 190; [2007] SASC 327; BC200707701. Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327; BC200707701 at [46] per Debelle J, with whom Nyland and Anderson JJ concurred. Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327; BC200707701 at [51] per Debelle J, with whom Nyland and Anderson JJ concurred. No doubt the relatively large size of the estate, and evidence of the good relationship the testatrix enjoyed with her children, influenced this decision. On other occasions a strained parent—child relationship (see generally 19.15–19.21) and/or substantial inter vivos provision (see 18.43), often coupled with a smaller estate, have restrained the generosity of the court towards applicants who are children of the deceased. See ACT s 7(1)(a)–(c); NSW s 57(1)(a)–(c); NT s 7(1)(a), (1)(c); Qld s 41(1); SA s 6(a), (ba), (c); Tas s 3A(a), (b); Vic s 90 (paragraphs (a) and (b) of the definition of ‘eligible person’); WA s 7(1)(a), (1)(c). As to the jurisdictional and discretionary stages generally, see 17.55, 17.56. (1985) 2 NSWLR 65 at 69–70. Court v Hunt (SC(NSW), Powell J, 29 October 1987, unreported). His Honour’s remarks were hardly unheralded in the law. For instance, in Worladge v Doddridge (1957) 97 CLR 1 at 11; BC5700260 Williams and Fullagar JJ stated that ‘[i]t is clear that the claim of a widow, where the estate is of considerable value, and there are no competing claims of children, should not be disposed of in any niggardly manner’. Gregory v Hudson (No 2) (SC(NSW), Young CJ in Eq, 18 September 1997, unreported) BC9704375 at 11 (opining that where a wealthy man ‘leaves the bulk of the benefits to his widow under a

12.

13.

14.

15. 16. 17.

18. 19.

discretionary trust over which she has no control, he has not made proper provision for his widow’, and that ‘[t]he community would expect that the widow of such a man would at least have a home in her own name and some capital to which she could resort whenever she felt like it’) (varied on appeal but without upsetting the validity of these comments: Gregory v Hudson [1999] NSWCA 221; BC9903619); Tucker v Tucker [2012] NSWSC 1302; BC201210840 at [38] per Macready AsJ (finding it preferable for the plaintiff, who had been the deceased’s wife for 48 years, to receive a legacy rather than an interest in a family discretionary trust). See, for example, Gregory v Hudson [1999] NSWCA 221; BC9903619 at [8], [9] per Handley JA, with whom Cole AJA agreed; O’Loughlin v O’Loughlin [2003] NSWCA 99; BC200302052 at [20] per Davies AJA, with whom Mason P and Meagher JA concurred; Clifford v Mayr [2010] NSWCA 6; BC201000435 at [142], [143] per Campbell JA, with whom Young JA and Handley AJA concurred. See, for example, Paton v Public Trustee (SC(NSW), Young J, 8 December 1988, unreported) BC8801250 at 13 (referring to ‘a basic minimum which the community regards as necessary for testators to provide for their spouses where their marriage has been of medium to long duration’, including ‘a secure roof over the remaining spouse’s head and at least a small capital sum’); King v White [1992] 2 VR 417 at 423 per Hedigan J; Serle v Walsh [2006] QSC 377; BC200610379 at [46] per Muir J; Savic v Kim [2010] NSWSC 1401; BC201009735 at [76] per Hallen AsJ; Collett v Knox [2010] QSC 132; BC201003226 at [133] per McMeekin J; Kowalski v Public Trustee (2011) 9 ASTLR 474; [2011] QSC 323; BC201110060 at [44], [45] per McMeekin J; Zannetides v Spence [2013] NSWSC 2032; BC201319041 at [16], [20] per Young AJA; Friedlos v Hampton [2013] WASC 105; BC201301924 at [10] per Sanderson M; Re RB [2015] NSWSC 70; BC201500589 at [18] per Lindsay J (who agreed with Powell J’s approach ‘as a sound guide to the measure of a testator’s “moral duty” to a wife or partner of 20 years’ standing’). See Golosky v Golosky (CA(NSW), Kirby P, Handley and Cripps JJA, 5 October 1993, unreported) BC9302134 at 19 per Kirby P, with whom Cripps JA concurred (ruling out ‘an inflexible rule that every spouse or every widow is entitled, as of right and in every case, to look to a testator to provide accommodation for life’); Bladwell v Davis [2004] NSWCA 170; BC200403444 at [12] per Bryson JA, with whom Ipp JA and Stein AJA concurred (cautioning that ‘the Court cannot resign the functions which it has under [the family provision legislation] in favour of rules of thumb’); Clifford v Mayr [2010] NSWCA 6; BC201000435 at [144] per Campbell JA, with whom Young JA and Handley AJA concurred (‘the principle is not one of immutable application’); Neale v Neale [2015] NSWCA 206; BC201510748 at [31]–[34] per Basten JA, with whom Macfarlan and Gleeson JJA concurred. Samsley v Barnes (1991) DFC ¶95-100 at 76,307; BC9001675 per Kirby P; Collett v Knox [2010] QSC 132; BC201003226 at [133] per McMeekin J. Marshall v Carruthers [2002] NSWCA 47; BC200200589 at [65] per Hodgson JA. [2002] NSWCA 47; BC200200589 at [74]. See also Manly v Public Trustee [2008] QCA 198; BC200806762 at [38] per Daubney J, with whom McMurdo P and MacKenzie AJA concurred (who opined that ‘[o]ne would, I think, have legitimate cause to doubt the true generality of application of that [Luciano v Rosenblum] “rule” in modern Australian society’ and, at the very least, adopted Young CJ’s observations about the ‘rule’). See, for example, Re Marcuola-Bel Estate [2005] NSWSC 1182; BC200510076 at [31] per Palmer J; White v Hanover [2010] VSC 577; BC201009590. See, for example, Frisoli v Kourea [2013] NSWSC 1166; BC201312161 (where although the deceased had gifted money to his de facto partner, as well as placed her in control of a family trust, made her a beneficiary of his superannuation fund and assigned to her the benefit of his life

20.

21. 22.

23. 24. 25. 26. 27. 28.

29.

insurance policy, Slattery J ruled that the applicant fell short of the category of spouse referred to in Luciano v Rosenblum, influenced by several factors: (1) her claim over the deceased’s house was limited by the fact that it was also occupied by the deceased’s brother and she only lived in it part of the week; (2) the deceased’s conversations with his solicitors indicated that he wished to benefit the applicant and his children equally; (3) the fact that neither the deceased nor the applicant made the relationship very public ‘takes this case somewhat away from the Luciano v Rosenblum category’; (4) proper allowance must be made for the competing valid claims for family provision by each of the children (who were young adults): at [163]). See, for example, Re the Will of Sitch (deceased) [2005] VSC 308; BC200505788 at [109] per Gillard J; West v France [2010] NSWSC 845; BC201005445 at [66] per Hallen AsJ; Sellers v Scrivenger [2010] VSC 320; BC201005217 at [68] per Daly AsJ. Marshall v Carruthers [2002] NSWCA 47; BC200200589 at [63] per Hodgson JA. See, for example, Blackmore v Allen [2000] NSWCA 162; BC200004363 (where Sheller JA, with whom Priestley JA and Foster AJA concurred, held that on the facts the claim by the testator’s de facto wife on the testator’s estate ‘was the same as the claim she would have had if she had been married to him’, given that they had cohabited as man and wife for 15 years, being ‘a claim of a high order not to be satisfied by an amount which is no more than a bare subsistence and it is a claim which … must be appropriately met out of the estate before any claim by the [testator’s children] be considered’: at [34]); Russell v Quinton [2000] NSWSC 322; BC200001969 (order for provision made in the context of a 21-year de facto relationship even though the applicant was in full-time employment and maintained separate financial affairs from the deceased); Anslow v Journeaux [2009] VSC 250; BC200905375 (where Beach J held that ‘[h]aving been effectively the deceased’s life partner for some 30 years and involved in providing him with significant and onerous care and assistance in the last seven years of his life’, the will should have made provision for a residence for the applicant and a nest egg on which she could live: at [41]). Waddingham v Burke [2015] WASC 65; BC201500785 at [78] per Mitchell J. O’Loughlin v O’Loughlin [2003] NSWCA 99; BC200302052 at [20] per Davies AJA, with whom Mason P and Meagher JA concurred. [2008] QCA 198; BC200806762 at [39] per Daubney J, with whom McMurdo P and MacKenzie AJA concurred. [2002] NSWCA 47; BC200200589 (see at [61]–[70] per Hodgson JA, at [76] per Young CJ in Eq). McKenzie v Topp [2004] VSC 90; BC200401441 at [58] per Nettle J. O’Loughlin v O’Loughlin [2003] NSWCA 99; BC200302052 at [20] per Davies AJA, with whom Mason P and Meagher JA agreed, referring to Bosch v Perpetual Trustee Company Ltd [1938] AC 463 at 476–8 per Lord Romer (PC). See also Cropley v Cropley (2002) 11 BPR 20,171; [2002] NSWSC 349; BC200201920 at [56] per Barrett J (‘When it comes to claims by adult children, it can be said at once that, if there is a competing claim by the widow and all claims cannot be fully accommodated, the widow’s claim should be afforded precedence in the sense that a demonstrated requirement for the allocation of resources in aid of the widow must be satisfied before any similarly demonstrated requirement for the allocation of resources in aid of an adult child’). Golosky v Golosky (CA(NSW), Kirby P, Handley and Cripps JJA, 5 October 1993, unreported) BC9302134 at 19 per Kirby P, with whom Cripps JA concurred (calling for the abandonment of ‘inflexible rules about spousal provision’); Bladwell v Davis [2004] NSWCA 170; BC200403444 at [19] per Bryson JA, with whom Ipp and Stein JJA agreed (‘it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse [see 17.55, 17.56], in full and with reference to the instant facts … the claims and circumstances of the opponents also have to be

30. 31.

32.

33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45.

46. 47. 48. 49. 50.

weighed, and they too have their needs and merits’); Chapman v Chapman [2004] ACTSC 121; BC200407804 at [30] per Connolly J; Edgar v Public Trustee for the Northern Territory [2011] NTSC 5; BC201100052 at [44] per Kelly J. Bladwell v Davis [2004] NSWCA 170; BC200403444 at [2] per Ipp JA. See, for example, Sayer v Sayer [1999] NSWCA 340; BC9906120 (where the court reversed an order of the trial judge that would have required the sale of the principal asset of the estate — a residence devised to the deceased’s widow — to support the deceased’s granddaughter; the court took the view that the claims of the grandfather’s widow were paramount, as the 6-year marriage was a good marriage and the widow had borne the care of the deceased during his illness); Ogburn v Ogburn [2012] NSWSC 79; BC201203541 (the widow, who was married to the deceased for 30 years and contributed to the purchase of property that formed an important part of her shared life with the deceased, was entitled to that property, with relatively minor provision made in favour of a son of the deceased from an earlier marriage). See, for example, Golosky v Golosky (CA(NSW), Kirby P, Handley and Cripps JJA, 5 October 1993, unreported) BC9302134 (where the widow, who was the testator’s second wife, was the applicant and the sons of his first marriage, the will beneficiaries whose interests were affected, were well-off and did not assert financial need, a majority of the court (per Kirby P, Cripps JA concurring) ordered further provision for the widow). Cross v Wasson (2009) 2 ASTLR 201; [2009] NSWSC 378; BC200904234 at [100] per Ward J. See 19.3–19.5. See 18.2. See 16.43. [2004] VSC 90; BC200401441 at [58], [60] (and on the facts considered that the amount of money left by the applicant’s father to the testatrix was a relevant consideration in the determination of whether the applicant was a person for whom the testatrix had a responsibility to provide: at [61]). Downing v Downing [2003] VSC 28; BC200300672 at [44] per Osborn J. Worladge v Doddridge (1957) 97 CLR 1 at 19; BC5700260 per Kitto J. (1980) 144 CLR 431 at 444–5; BC8000077. (SC(NSW), Holland J, 18 December 1979, unreported). Milillo v Konnecke (2009) 2 ASTLR 235; [2009] NSWCA 109; BC200903916 at [48] per Ipp JA. O’Leary v O’Leary [2010] NSWSC 1347; BC201009089 at [80] per Hallen AsJ. (2009) 2 ASTLR 201; [2009] NSWSC 378; BC200904234 at [138]. Court v Hunt (SC(NSW), Young J, 14 September 1987, unreported) BC8701155 at 3. See also Moore v Moore (CA(NSW), Hutley, Glass and Samuels JJA, 16 May 1984, unreported) BC8400340 at 2 per Hutley JA, with whom Glass and Samuels JJA concurred; Golosky v Golosky (CA(NSW), Kirby P, Handley and Cripps JJA, 5 October 1993, unreported) BC9302134 at 17 per Kirby P, with whom Handley and Cripps JJA concurred; Burgess v Public Trustee of New South Wales [2011] NSWSC 1070; BC201107131. The Queensland Court of Appeal has, however, made an order of this kind: Kowalski v Kowalski [2012] QCA 234; BC201206480. [2010] NSWSC 59; BC201000448 at [310], [311]. [2003] NSWCA 311; BC200306242 at [35]. Golosky v Golosky (CA(NSW), Kirby P, Handley and Cripps JJA, 5 October 1993, unreported) BC9302134 at 10 per Kirby P. [2003] NSWCA 99; BC200302052 at [24] per Davies AJA, with whom Mason P and Meagher JA concurred. See also the dictum of Wilson J in White v Barron (1980) 144 CLR 431 at 457; BC8000077 who, after referring to the need to consider all the circumstances, including the size of

51. 52. 53. 54. 55.

56.

57. 58. 59. 60. 61. 62.

63. 64.

the estate and the style of life to which the applicant had become accustomed (on the facts his Honour had earlier described the lifestyle as ‘comfortable and affluent’: at 454), opined that he did not think that ‘a wise and just testator would think it right for his widow to be required to draw on her own capital assets in satisfaction of her need of proper maintenance, especially when he had the means to protect her from the risk of financial anxiety in the future by a provision which enabled her to conserve her own capital’. [2011] NSWSC 87; BC201101790. Shorey v Hansford [2003] NSWSC 889; BC200305732 at [36] per Windeyer J. See 17.65–17.67. King v White [1992] 2 VR 417 at 422 per Hedigan J. ACT s 7(1)(a), (9); NSW s 57(1)(d); NT s 7(1)(b); SA s 6(b). Cf Inheritance (Provision for Family and Dependants) Act 1975 (UK) s 15(1) (which envisages that, on the grant of a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter ‘the court, if it considers it just to do so, may, on the application of either party to the marriage, order that the other party to the marriage shall not on the death of the applicant be entitled to apply for an order [for provision]’; in Re Fullard (deceased) [1982] Fam 42 at 50 Ormrod LJ regarded s 15(1) ‘as a form of insuring against applications under [the family provision legislation] which some people may very reasonably wish to do having made financial provision of a capital nature for the former spouse’). An equivalent provision exists for civil partners: s 15ZA. NT s 7(2)(a) (only if the person was ‘maintained by the deceased person immediately before his or her death’: see 16.12); Qld s 41(1) (see definition of ‘spouse’ for this purpose, namely referring to the deceased’s ‘dependant former husband or wife’: Qld s 5AA(2)(c)(ii), as to which see 16.38); Tas s 3A(d) (referring to a person whose marriage to the deceased person has been dissolved or annulled but who at the date of the deceased person’s death was receiving or entitled to receive maintenance from the deceased person whether pursuant to an order of a court, or to an agreement or otherwise); Vic s 90 (definition of ‘eligible person’, which refers to the former spouse with the ability to have taken proceedings under the Family Law Act 1975 (Cth)); WA s 7(1)(b) (similar to Tasmania). As to the meaning of ‘civil partner’, see 16.9. As to the meaning of ‘domestic partner’, see 16.9. ACT s 7(1)(a), (9). As to the meaning of ‘de facto spouse’ (NT) and ‘de facto partner’ (WA), see 16.13 (NT), 16.54 (WA). As to the meaning of ‘significant relationship’, see 16.45. NT s 7(2)(a); Tas s 3A(e); WA s 7(1)(b). The Tasmanian legislation adds that, if in the opinion of the court it is desirable so to do, having regard to all the circumstances of the case, the court may, in any order under the Act making provision for the spouse of a deceased person, direct that provision to operate for the benefit of the spouse notwithstanding that he or she may, at any time after the making of the order, remarry or enter into a significant relationship: Tas s 9(4). To the extent that an applicant’s remarriage or entry into another de facto relationship is not expressly identified by statute as a bar to standing, the position is the same elsewhere. It follows that the fact of remarriage, or entry into a new relationship, though it may be relevant to take into account in the exercise of the court’s discretion to order provision, is not a bar to the application: Bailey v Public Trustee [1960] NZLR 741; Re Claverie (1970) 91 WN (NSW) 858; Shannon v Baker (1993) 9 WAR 325 at 327–9 per White J. Contra Re De Feu [1964] VR 420. Qld s 5AA(2)(c), (4)(b). Vic s 90 (definition of ‘eligible person’, paragraph (e)).

65.

66. 67. 68. 69.

70.

71.

72. 73.

74. 75. 76.

77. 78. 79. 80.

In South Australia the legislation extends standing to the ‘domestic partner’ of a deceased person: SA s 6(ba). For this purpose, a ‘domestic partner’ is a a person declared under the Family Relationships Act 1975 (SA) to have been the domestic partner of the deceased as at the date of his or her death, or at some earlier date: SA s 4. The phrase ‘or at some earlier date’ is capable, on one interpretation, of encompassing a domestic partnership that has ceased before the date of the deceased’s death. On another interpretation, the phrase is intended to do no more than make clear that the determination need not have been one made for the purposes of the family provision proceedings. As to the meaning of ‘dependent’ in this context, see 16.22–16.29. As to the meaning of ‘household’ in this context, see 16.21. NSW s 57(1)(e). Burke v Public Trustee (1997) 69 SASR 557 at 561; BC9706035 per Debelle J (‘There are no hard and fast rules as to the attitude of the court to claims by divorced wives. Each case will be determined on its own facts, according to the merits of the claim’). O’Shaughnessy v Mantle (1986) 7 NSWLR 142 at 149 per Young J, referring to s 81 of the Family Law Act 1975 (Cth), which states that, in proceedings under Pt VIII of the Act (‘property, spousal maintenance and maintenance agreements’), ‘the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them’. See also Family Law Act 1975 (Cth) s 90ST (equivalent provision in relation to de facto relationships). Armstrong v Sloan [2002] VSC 229; BC200203235 at [50] per Harper J (‘the law seeks to avoid the reproach that it is the destroyer of bargains’). See also Boulanger v Singh (1985) 16 DLR (4th) 131 at 137 per Macdonald JA (CA(BC)) (‘a fair agreement ought to be given considerable weight’). (1988) 13 NSWLR 639 at 651. Mulcahy v Weldon [2001] NSWSC 474; BC200103104 at [22] per Bryson J (aff’d Mulcahy v Weldon [2002] NSWCA 206; BC200203520). See also Penfold v Perpetual Trustee Company Ltd [2002] NSWSC 648; BC200204116 at [53] per Windeyer J; Milewski v Holben [2014] NSWSC 388; BC201402296 at [64] per Lindsay J. [2001] NSWSC 474; BC200103104. Mulcahy v Weldon [2002] NSWCA 206; BC200203520. Mulcahy v Weldon [2001] NSWSC 474; BC200103104 at [22], [24] (paragraph break omitted). See also Penfold v Perpetual Trustee Company Ltd [2002] NSWSC 648; BC200204116 (where the matrimonial relationship between the applicant and the deceased ended 30 years before his death, and the little continuing contact was only as a result of the duty to children and ended once they became independent); Thyssen v Pottenger [2003] NSWSC 787; BC200307396 (where the applicant’s relationship with her former husband had been terminated by their divorce, and orders were made for property settlement and maintenance, nearly 40 years before the application); Sita v Sita [2005] NSWSC 461; BC200503160 (where there was virtually no contact following the parties’ separation, apart from the property settlement, both parties to the settlement were legally advised, and there were no children of the marriage); Glynne v NSW Trustee and Guardian [2011] NSWSC 535; BC201104325 (where the relationship ended 8 years before the deceased’s death, there had been no continuing contact of any significant kind, and the Family Court property orders purported to be complete and final, and exhibited no unfairness). [2002] VSC 229; BC200203235. Armstrong v Sloan [2002] VSC 229; BC200203235 at [55]. Armstrong v Sloan [2002] VSC 229; BC200203235 at [50]. Armstrong v Sloan [2002] VSC 229; BC200203235 at [54].

81. 82.

83.

84. 85. 86.

87.

88.

89. 90. 91.

[2009] NSWSC 567; BC200905702 at [137]. Scott v Scott [2009] NSWSC 567; BC200905702 at [142] (involving cohabitation for 23 years). See also Kalmar v Kalmar [2006] NSWSC 437; BC200603643 at [63] per White J (who held that, notwithstanding the parties’ separation, and notwithstanding the other claims on what was a small estate, ‘some provision is required in recognition of the services and the financial contribution the plaintiff made over about five years of marriage and cohabitation’: his Honour ordered 20 per cent of the estate as provision). Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639 at 652 per Kirby P (‘that public policy, important though it is, must adapt itself to the new provisions of the Act, with its reforming inclusion of a specific entitlement of a former spouse to claim. That provision contemplates there will be cases where such a claim will succeed, notwithstanding the public policy’). Smith v Smith (1986) 161 CLR 217 at 243 per Mason, Brennan and Deane JJ. Re Hilton [1997] 2 NZLR 734 at 742–3 per Anderson J. See also Wagner v Wagner Estate (1991) 85 DLR (4th) 699 at 708–9 per McEachern CJBC, with whom Proudfoot JA concurred (CA(BC)). Mulcahy v Weldon [2001] NSWSC 474; BC200103104 at [22] per Bryson J (aff’d Mulcahy v Weldon [2002] NSWCA 206; BC200203520). An example of a ‘remarkable’ and ‘exceptional’ case is arguably Lodin v Lodin [2017] NSWSC 10; BC201700193, where the applicant, who had cohabited with the deceased as his spouse for 18 months some 25 years before his death, and had been the beneficiary of a final matrimonial property settlement, was nonetheless awarded provision amounting to some 15 per cent of the deceased’s $5m estate. Although the applicant had made life difficult for the deceased in the years following the separation, what influenced Brereton J to order provision in her favour was that: the divorce had an ‘unusually enduring impact’ on her (at [81]); her financial prospects when concluding the property settlement proved overly optimistic (at [85]); the deceased had prospered financially thereafter while she had borne the responsibility of raising their child (at [86]); and the estate was sufficiently ample to make provision for the applicant whilst leaving a substantial endowment for the child (at [87]). Lynch v Lynch (SC(NSW), Macready M, 24 August 1992, unreported) (who opined that the demonstrable unfairness, although on legal advice, of a settlement may be a factor warranting the making of the application); Sita v Sita [2005] NSWSC 461; BC200503160 at [28] per Macready M. See also Re Fullard (deceased) [1982] Fam 42 at 52 per Purchas J (‘where the parties have with the assistance of legal advisers clearly gone into the whole situation, it must weigh heavily with the court in considering the various criteria’). Cf the ostensibly more generous approach in New Zealand: see, for example, Re Hilton [1997] 2 NZLR 734 (where Anderson J granted the deceased’s ex-wife approximately one-fifth of his reasonably substantial estate, notwithstanding an earlier formal property settlement that could not be impugned for unfairness or fraud, reasoning that the deceased ‘had a moral obligation to … understand the difficulties his [former] wife and partner of 16 years would have to face in middle age and later, of understanding the value of the opportunities she had forgone for the sake of him and his family, and of understanding how, although the matrimonial property issues were resolved according to law, the fortune that he would now leave behind was charged with moral obligations that went beyond matrimonial property division’: at 744). Sita v Sita [2005] NSWSC 461; BC200503160 at [23] per Macready M (referring to fraud or unconscionable conduct by any party vis-à-vis the property settlement agreement, which inter vivos may give standing to set aside the agreement under the Family Law Act 1975 (Cth) ss 90K, 90UM, as relevant to the court’s inquiry). Penfold v Perpetual Trustee Company Ltd [2002] NSWSC 648; BC200204116 at [37] per Windeyer J. Burke v Public Trustee (1997) 69 SASR 557 at 561; BC9706035 per Debelle J. Mulcahy v Weldon [2001] NSWSC 474; BC200103104 at [28] per Bryson J (aff’d Mulcahy v Weldon

92.

93.

94. 95. 96. 97. 98. 99. 100. 101. 102. 103. 104.

105. 106. 107. 108.

[2002] NSWCA 206; BC200203520). See, for example, Hillman v Box (No 4) [2014] ACTSC 107; BC201403910 (modest ($50,000) provision from a $700,000 estate made in favour of a former domestic partner, where the relationship had endured for 8 years and the deceased died not long after it ended, even in the face of an existing settlement agreement wherein the deceased had made payment to the applicant: at [374]–[384] per Refshauge J); Milewski v Holben [2014] NSWSC 388; BC201402296 (where notwithstanding 15 years elapsing after the termination of a 3-year marriage, Lindsay J found that a family provision order was warranted in view of, inter alia: (1) there having been no formal settlement following the divorce; (2) the ongoing, close nature of the relationship between the parties; (3) a pattern of promises of future provision voluntarily made by the deceased following their divorce; (4) the size of the deceased’s resources at the time of his death (more than $11m) being sufficient to provide for his widow and his children; even so, his Honour only awarded the applicant ex-wife a small proportion of the estate, namely $200,000 plus costs). See, for example, Draskovic v Bogicevic [2007] VSC 36; BC200701042 (where the evidence revealed that the marriage to the testator was the reason why the applicant left her home and job in Serbia and travelled to Australia and that the testator continued to pay her maintenance to the date of his death; Kaye J ruled that, although post-divorce the plaintiff made a number of decisions independent of anything attributable to the testator, ‘[t]o that limited degree the marriage played some, albeit particularly minor, role historically in the chain of events which has contributed to the plaintiff being in her current state’ (at [41]), described as ‘an impoverished state’ (at [18]); his Honour found that in those circumstances ‘a wise and just testator would have considered it his duty to continue the type of support which he had given the plaintiff during the last 15 years’ (at [43]), and ordered $60,000 provision out of a $591,000 estate). Churton v Christian (1988) 13 NSWLR 241 at 253; BC8803144 per Priestley JA. (1988) 13 NSWLR 241 at 253; BC8803144 per Priestley JA. [2014] NSWSC 585; BC201403516. Hart v Van Son [2014] NSWSC 585; BC201403516 at [60]. Re Fullard (deceased) [1982] Fam 42 at 49 per Ormrod LJ, at 52 per Purchas J. Re Adams [1967] VR 875 at 888 per Lush J; Re Estate of Brooks (1979) 22 SASR 398 at 400 per Jacobs J. (1997) 69 SASR 557; BC9706035. Burke v Public Trustee (1997) 69 SASR 557 at 562; BC9706035. Re Estate of Brooks (1979) 22 SASR 398 at 400 per Jacobs J. [2004] ACTSC 121; BC200407804. Chapman v Chapman [2004] ACTSC 121; BC200407804 at [28]–[30]. Cf Byrne v Byrne [2000] NSWCA 168; BC200003854 (where the deceased left his entire estate to a de facto spouse, and the Court of Appeal upheld a decision at first instance that the widow, whom the deceased had finally left in 1955 and had only irregularly cohabited with since 1949, should receive a substantial benefit; the evidence established that the deceased had made no provision at all for his lawful wife, and that she had struggled to bring up four young children of the deceased over many years). Carey v Robson (2009) 2 ASTLR 400; [2009] NSWSC 1142; BC200909715 at [69] per Palmer J (aff’d Carey v Robson [2010] NSWCA 212; BC201006396). As to competing claims between the deceased’s children and his or her (often later) spouse, see 18.7–18.12. Fung v Ye [2007] NSWCA 115; BC200703562 at [22] per Young CJ in Eq, with whom Tobias JA and Bell J concurred. Fung v Ye [2007] NSWCA 115; BC200703562 at [22] per Young CJ in Eq, with whom Tobias JA

and Bell J concurred. 109. It is interesting to note that the initial iteration of the Victorian Bill directed to constraining the eligibility to apply for provision (the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014 (Vic)) confined the standing of offspring to those: under the age of 18 years, who were fulltime students aged between 18 years and 25 years, or who suffered a disability. By focusing on dependent or under-age children, the Bill ostensibly reflected a view that family provision legislation had swung too far from its roots (namely to avoid widows and children succumbing to destitution) and that there had been undue liberality in allowing adult children, who were otherwise competent and financially comfortable, provision from deceased estates. See, to this end, the issues raised in the following empirical study: B White et al, ‘Estate Contestation in Australia: An Empirical Study of a Year of Case Law’ (2015) 38 UNSWLJ 880; see also H Conway, ‘Do Parents Always Know Best? Posthumous Provision and Adult Children’ in W Barr (ed), Modern Studies in Property Law, Vol 8, Hart Publishing, Oxford, 2015, Ch 7 (which raises questions over the legitimacy of yielding to claims of independent children in the United Kingdom). But in the wake of concerns that the Bill, so phrased, would unduly limit claims by adult children who may not be dependent on their parents (see Innes-lrons v Forrest [2016] VSC 782; BC201610787 at [52]–[60] per Derham AsJ), the final version of the Bill (and the ensuing Act) added as an ‘eligible person’, a child of the deceased otherwise not referred to, in which case the court must take into account, in determining the amount of any provision, ‘the degree to which the eligible person is not capable, by reasonable means, of providing adequately for the eligible person’s proper maintenance and support’: Vic s 91(4)(c). 110. Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 147–8; BC7900037 per Gibbs J, with whom Mason, Murphy and Aickin JJ agreed (‘There are no rigid rules; the question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances’); Bladwell v Davis [2004] NSWCA 170; BC200403444 at [12] per Bryson JA, with whom Ipp and Stein JJA agreed (‘A rule which was once followed which practically prevented ordering provision for an adult son who was fit to work has been abandoned’). 111. As to the nature of the relevant discretion, see 17.56. 112. See, for example, Langford v Cleary (No 2) (1998) 8 Tas R 52 at 57 per Slicer J (‘The approach has historically been based on the characterisation of the term ‘adult son’, although it should now be considered by reference to the term ‘adult child’); Edgar v Public Trustee for the Northern Territory [2011] NTSC 21; BC201101283 at [39] per Kelly J (it has ‘become obligatory in cases of this nature to query whether in modern conditions adult sons should be treated differently from adult daughters. Presumably they should not’). Cf Collicoat v McMillan [1999] 3 VR 803 at 823; BC9502481 per Ormiston J (who advised caution about suggesting that, because of changes in community views, the courts should now be less generous in relation to claims by adult daughters, given that not infrequently claims coming before the courts have been brought by middle-aged children against the estates of parents who have died in their 60s, 70s or 80s, and ‘[m]any years have passed since those children were brought up by their parents, trained for life as best they could be and launched into a very different adult world’ so that ‘one is … still dealing with applications … brought by applicants whose lives have been largely moulded many years in the past and whose opportunities were, in some senses, restricted by that upbringing’). 113. [1948] VLR 279 at 280 (emphasis supplied). More recent cases endorse this view: see, for example, Stott v Cook (1960) 33 ALJR 447 at 448 per Dixon CJ; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19–20 per Dixon CJ, at 24 per Taylor J; BC6200110; Re Buckland (deceased) (No 2) [1967] VR 3; Re Adams (deceased) [1967] VR 881; Langford v Cleary (No 2) (1998) 8

114. 115. 116.

117. 118. 119.

120. 121. 122. 123. 124. 125. 126. 127. 128.

Tas R 52 at 58; BC9801597 per Slicer J; Coulston v Tasmanian Perpetual Trustees Ltd [2010] TASSC 22; BC201002825 at [34] per Tennent J; Edgar v Public Trustee for the Northern Territory [2011] NTSC 21; BC201101283 at [38] per Kelly J. See also Re Dennis (deceased) [1981] 2 All ER 140 at 145 per Browne-Wilkinson J (‘A person who is physically capable of earning his own living faces a difficult task in getting provision made for him, because the court is inclined to ask: “Why should anybody else make provision for you if you are capable of maintaining yourself?”’); Re Jennings (deceased) [1994] Ch 286 at 295 per Nourse LJ. Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 147; BC7900037 per Gibbs J, with whom Mason, Murphy and Aickin JJ agreed. See, for example, Collicoat v McMillan [1999] 3 VR 803; BC9502481, discussed at 18.30. See de Groot and Nickel, pp 85–9; M Voyce, ‘Family Provision, the Family Farm and Rural Patriarchy: Three Actors in Search of a Play?’ (2014) 19 Deakin L Rev 347 (who argues that the case law on rural claimants — comparing claims by farming sons with those of farming daughters and widows — reflects forms of patriarchy that incorporate rural ideas of labour and the place of women on farms). See, for example, Harrison v Harrison [2011] VSC 459; BC201107187 at [328]–[353] per Kaye J (aff’d but not on this point: Harrison v Harrison [2013] VSCA 170; BC201310470). Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151; BC200701141 at [82] per Young CJ in Eq. See, for example, Re Watkins [1949] 1 All ER 695 (no order for additional provision for institutionalised daughter made in circumstances where Roxburgh J found that the deceased was entitled to distribute his estate on the footing that the daughter could and should take advantage of the provisions of state care); Ridge v Public Trustee [2006] NSWSC 400; BC200603076; Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151; BC200701141; Bruce v Matthews [2011] VSC 185; BC201102785 (disabled son essentially supported by the state, and so did not require additional provision). Cf Challinor v Challinor [2009] WTLR 931; [2009] EWHC 180 (Ch) (limited order for provision, as an additional buffer against contingencies, for an applicant suffering Down’s syndrome living in a care facility). (1979) 143 CLR 134; BC7900037. Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 147; BC7900037. Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 148; BC7900037. Langford v Cleary (No 2) (1998) 8 Tas R 52 at 56–7 per Slicer J. As to the relevance of moral duty in this context, see 17.60–17.64. See 18.32. See, for example, Anderson v Teboneras [1990] VR 527 at 538 per Ormiston J. Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 147–8; BC7900037. Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189; BC200503896 at [29] per Bryson JA, with whom Giles JA and Stein AJA concurred. See also Taylor v Farrugia [2009] NSWSC 801; BC200907277 at [58] per Brereton J; Hastings v Hastings [2010] NSWCA 197; BC201005690 at [20] per Basten JA, with whom McColl JA and Handley AJA concurred; Slack-Smith v Slack-Smith [2010] NSWSC 625; BC201004149 at [25] per Ball J; Re Estate of Demetriou (deceased) (2013) 12 ASTLR 124; [2013] VSC 703; BC201316124 at [15] per Zammit AsJ; Daniels v Hall [2014] WASC 152; BC201403192 at [139] per E M Heenan J. Cf Simonetto v Dick (2014) 10 ASTLR 231; [2014]

129. 130.

131. 132. 133. 134.

135. 136. 137. 138. 139. 140. 141.

142. 143. 144. 145. 146. 147.

148. 149. 150.

NTCA 4; BC201405220 at [39] per Riley CJ, with whom Southwood J agreed. English courts have likewise moved away from the ‘special claim’ or ‘special need’ characterisation in this context: see Re Hancock [1998] 2 FLR 346; Ilott v Mitson [2011] WTLR 779; [2011] EWCA Civ 346. Hunter v Hunter (1987) 8 NSWLR 573 at 580. See, for example, Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545 per Holland J; Bondelmonte v Blanckensee [1989] WAR 305 at 310 per Malcolm CJ; Hawkins v Prestage (1989) 1 WAR 37 at 45 per Nicholson J. See, for example, Curran v Duncan [2006] WASC 9; BC200600166 at [10] per E M Heenan J. [1948] VLR 279, discussed at 18.23. See 19.5. Allan v Allan [2001] VSC 242; BC200104192 at [64]–[67] per McDonald J; Marshall v Spillane [2001] VSC 371; BC200106067 at [26] per Byrne J; Herszlikowicz v Czarny [2005] VSC 354; BC200506608 at [119] per Hargrave J. Blair v Blair (2004) 10 VR 69; [2004] VSCA 149; BC200405494 at [20] per Chernov JA, with whom Nettle JA and Hansen AJA concurred. Blair v Blair (2004) 10 VR 69; [2004] VSCA 149; BC200405494 at [22] per Chernov JA, with whom Nettle JA and Hansen AJA concurred. NSW s 60(2)(g); Vic s 91A(2)(f) (before 1 January 2015, Vic s 91(4)(j)). ACT s 8(3)(c); NSW s 60(2)(h); Vic s 91A(2)(g) (before 1 January 2015, Vic s 91(4)(k)). Taylor v Farrugia [2009] NSWSC 801; BC200907277 at [58]. Slack-Smith v Slack-Smith [2010] NSWSC 625; BC201004149 at [25] per Ball J; Oldereid v Chan [2013] NSWSC 434; BC201302051 at [55] per Ball J. Taylor v Farrugia [2009] NSWSC 801; BC200907277 at [58] per Brereton J. Cf Iwasivka v State Trustees Ltd [2005] VSC 323; BC200505944 at [75] per Hansen J (‘There are no simple rules in families but it would be a remarkable proposition that as a child matured to adulthood and went his or her own way the relationship of parent and child was to be taken as having ceased’, a remark made against the backdrop of an argument that an applicant, who when younger had been treated as a child of the deceased, should be denied provision because as an adult she had travelled, lived in Australia in parts distant from the deceased and had only limited contact with the deceased; his Honour added that this ‘does not mean that the relationship of, or akin to that of, mother and daughter ceased’, querying: ‘[a]fter all, is that not what happens in ordinary families where parents strive to bring up their children to be independent, to live their lives away from home, make their own decisions in life and cope with the consequences, while maintaining such contact as is practicable in the circumstances?’). (1979) 143 CLR 134 at 148; BC7900037. Re Hatte [1943] St R Qd 1 at 26. See 18.25. See generally 19.9–19.27. Stott v Cook (1960) 33 ALJR 447 at 450 per Kitto J. Bates v Cooke [2015] NSWCA 278; BC201508977 at [3] per Leeming JA (remarking that ‘an approach which disentitles an adult claimant whose need is generated from well-intentioned but improvident investment decisions where the estate can alleviate the need without having a significant deleterious effect on any other relevant person is unduly narrow’). (1960) 33 ALJR 447 at 450. Stott v Cook (1960) 33 ALJR 447 at 450. Stott v Cook (1960) 33 ALJR 447 at 450.

151. [1999] 3 VR 803 at 827; BC9502481 (emphasis supplied). 152. Collicoat v McMillan [1999] 3 VR 803 at 827; BC9502481. 153. See, for example, Goldberg v Landerer [2010] NSWSC 1431; BC201009434 (where Rein J held that bequests of $50,000 each to the testator’s son and daughter, from an estate worth approximately $5m the remainder of which had been left to the testator’s second wife, were inadequate in view of the size of the estate; his Honour ordered provision of $850,000 for the daughter and $400,000 for the son). 154. Atthow v McElhone [2010] QSC 177; BC201003400 at [24] per Applegarth J (‘The court does not exercise jurisdiction under the Act to build up out of the estate of the testator the capital assets of a person who has built up enough assets for their proper maintenance’). See, for example, Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 (where the applicant, whose assets exceeded $2.3m, had been advantaged in comparison with his siblings as a result of his association with the family farming business: see at [37] per Gleeson CJ, at [131] per Callinan and Heydon JJ). 155. See, for example, Higgins v Higgins [2005] 2 Qd R 502; [2005] QSC 110; BC200503235 (where parents had given the applicant, whose assets totalled almost $2m, opportunities that were to his financial advantage, whereas his siblings’ assets were much less: at [42] per White J). 156. See, for example, Sim v Public Trustee [2005] NSWSC 751 (involving deliberate estrangement by an adult child who was already well off). As to the impact of estrangement generally on an application for provision, see 19.15–19.21. 157. See 18.2. 158. [2009] NSWSC 801; BC200907277 at [57]. 159. Fung v Ye [2007] NSWCA 115; BC200703562 at [25] per Young CJ in Eq, with whom Tobias JA and Bell J concurred (opining that the trial judge’s statement (Ye v Fung (No 3) [2006] NSWSC 635; BC200604717 at [31] per Gzell J) that ‘there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one’ may give rise to unreasonable expectations by future claimants). See also Shearer v Public Trustee (SC(NSW), Young J, 23 March 1998, unreported) BC9801325; Fiorentini v O’Neill (SC(NSW), Cowdroy AJ, 4 December 1998, unreported) BC9806451; Khoury v Public Trustee [2010] NSWSC 475; BC201003152 at [57] per McLaughlin AsJ (‘It is rare for … a son of a testator to be able to establish an entitlement for an unencumbered house property to be provided for him by the estate of his deceased parent’). 160. See generally 17.68–17.73. 161. [2005] NSWSC 593; BC200504633 (where Palmer J referred to a need for more suitable accommodation, namely a one-storey house closer to public transport: at [80]). 162. [2004] NSWSC 1116; BC200407870 at [51] per Berecry AM. See also Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134; BC7900037, discussed at 18.25. 163. See, for example, Chan v Chan [2016] NSWCA 222; BC201607103 (where the court granted the applicant, who was one of the deceased’s sons and suffered a ‘functional impairment’, an additional $700,000 provision, out of a $15m estate, to assist in maintaining an expensive property that the deceased had purchased inter vivos for the applicant; Basten JA found that the applicant’s degree of functional impairment ‘demonstrated a real need which should properly have been met from the estate’, as he was living in a house that was barely habitable, and was not in a position to obtain the assistance he needed in managing the property, or in managing his own life: at [38]). 164. Frizelle v Old [2009] NSWSC 1259; BC200910475 at [174] per Barrett J. 165. [2010] NSWSC 475; BC201003152 at [58], [59]. 166. Khoury v Public Trustee [2010] NSWSC 475; BC201003152 at [73]. 167. Shorey v Hansford [2003] NSWSC 889; BC200305732 at [36] per Windeyer J.

168. (1962) 107 CLR 9; BC6200110. 169. Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 18; BC6200110. 170. Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20; BC6200110. See also Hughes v Hughes (CA(NSW), Hope, Samuels and Meagher JJA, 6 June 1989, unreported) BC8902085 at 4 per Meagher JA, with whom Hope JA and Samuels JA concurred (who remarked that the applicant’s ‘right arises not merely from the bare fact of parenthood, which of itself does not generate a right’ (emphasis supplied); yet as there is no ‘right’, as such, to an order for provision, this statement can be interpreted other than as denying provision due to ‘bare paternity’). 171. Gorton v Parks (1989) 17 NSWLR 1 at 9–10. 172. Gorton v Parks (1989) 17 NSWLR 1 at 10 173. (2007) 2 ASTLR 419; [2007] NSWCA 356; BC200710898 at [43]. 174. Their Honours did note, though, that they were not intending to include a mere sperm donor in the discussion of ‘bare paternity’, as it is the persons who make use of the sperm rather than the sperm donor who are responsible for bringing a child into the world: Nicholls v Hall (2007) 2 ASTLR 419; [2007] NSWCA 356; BC200710898 at [44]. 175. Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 540. 176. Mead v Lemon [2015] WASC 71; BC201500874 at [67] per Sanderson M (remarking that any suggestion that some concept of ‘bare paternity’ meant that ‘an inadequate parent in some way had a lesser moral obligation to a child seems to me to be wrong as a matter of principle’). See, for example, Campbell v Chabert-McKay [2010] NSWSC 859; BC201005447 (where White J noted that the applicant ‘had nothing to be grateful for’, as she had been abandoned by her father aged 10, and that apart from paying her school fees and providing maintenance to her mother pursuant to orders made in the family law proceedings, he did nothing for the plaintiff: at [119]); Doddridge v Badenach [2011] TASSC 34; BC201105092 (a case where the deceased ‘simply abandoned his daughter emotionally and physically’ at a young age, Evans J remarked that ‘[i]t is a melancholy reality that insofar as her father failed to provide for her during her childhood, she was no drain on his resources and thereby assisted him to accumulate his estate’ and ‘[f]rom this standpoint the applicant’s claim is more formidable than that of a claimant who was supported to adulthood by a parent, but thereafter became estranged from that parent’: at [42]); Stone v Stone [2016] NSWSC 605; BC201603499 (where the deceased’s adult daughter, who was in need, ‘never had the financial support from her father during childhood that every child is entitled to expect from her parents’ and was as a consequence ‘denied opportunities as a child and young adult to build skills and acquire knowledge to equip her for life in the future’ (at [62]), Brereton J granted the daughter provision from the deceased’s estate, reasoning that ‘[t]he Court should not readily accede to a position whereby a father who has evaded his obligation to make proper provision for a child during childhood, can then avoid making provision for her out of his accumulated estate by deferring to a primary obligation to another’: at [63]). 177. See, for example, Atthow v McElhone [2010] QSC 177; BC201003400 at [28] per Applegarth J (involving a daughter of substantial means, whose application amounted to ‘little more than a contention that an obligation was owed to her because she was, after all, the deceased’s daughter and because her siblings had always been favoured by their mother’). Cf Doddridge v Badenach [2011] TASSC 34; BC201105092 (where Evans J found that even though the applicant’s net worth exceeded that of her deceased father, from whose estate she claimed provision, she was nonetheless in need of maintenance: at [48]). 178. See, for example, Higgins v Higgins [2005] 2 Qd R 502; [2005] QSC 110; BC200503235 (where the applicant, who had assets of almost $2m as a result of farming opportunities given by his parents, and whose siblings’ assets were much less, was denied provision: at [42] per White J); Vigolo v Bostin

179. 180. 181. 182. 183. 184. 185. 186. 187. 188.

189. 190.

191. 192. 193. 194. 195. 196. 197.

198. 199.

(2005) 221 CLR 191; [2005] HCA 11; BC200500902 (where the applicant, whose assets exceeded $2.3m, had been advantaged in comparison with his siblings as a result of his association with the family farming business: see at [37] per Gleeson CJ, at [131] per Callinan and Heydon JJ). See, for example, Sim v Public Trustee [2005] NSWSC 751. As to the impact of estrangement generally on an application for provision, see 19.15–19.21. ACT s 7(1)(e); NT s 7(1)(e); SA s 6(h) (‘a child of the child of the deceased person’). Before 1 January 2015, as standing was premised upon an inquiry into whether the deceased ‘had responsibility to make provision’ for an applicant (Vic s 91(1), as it then read), standing for grandchildren rested upon appealing to matters going to this responsibility. NSW s 57(1)(e); Vic ss 90 (paragraph (i) of definition of ‘eligible person’), 91(2)(b). As to the meaning of ‘wholly or partly dependent’, see 16.22–16.29. WA s 7(1)(d). Qld s 41(1) (which refers only to ‘spouse, child or dependant’; ‘child’ is not defined to include ‘grandchild’, and is unlikely to be interpreted broadly for this purpose: see 16.39); Tas s 3A(b) (refers only to ‘the children of the deceased person’). For this purpose, ‘dependant’ is defined in Qld s 40: see 16.40. Being the terminology used by Basten JA in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392; BC201409683 at [11]. Wall v Crane [2009] SASC 382; BC200911695 at [133] per White J. Sherlock v Guest [1999] VSC 431; BC9907600 at [25] per Beach J; MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 95; BC200305001 at [216] per Dodds-Streeton J; Feehan v Toomey [2014] VSC 488; BC201408190 at [47] per McMillan J. See 18.34. See, for example, Feehan v Toomey [2014] VSC 488; BC201408190 (where the applicant’s evidence clearly established that her grandfather did not wish to have a relationship with her, and that the applicant’s attempts to engage with his grandfather had no substantial bearing on her (unsuccessful) application: at [49] per McMillan J). [2009] SASC 382; BC200911695 at [134] per White J, referring to Estate of Puckridge (1978) 20 SASR 72 at 77–8 per King CJ. Wall v Crane [2009] SASC 382; BC200911695 at [135]. Wall v Crane [2009] SASC 382; BC200911695 at [139]. Wall v Crane [2009] SASC 382; BC200911695 at [141] (making an order of $50,000 out of a $1.1m estate). [2010] NSWSC 1113; BC201007413. [2016] NSWSC 1696; BC201610253 at [49] per Rein J. Kitson v Franks [2001] WASCA 134; BC200102084 at [66] per Parker J, with whom Kennedy J agreed; Milne v Kendall [2010] WASC 338; BC201008910 at [17] per Jenkins J; Chappell v Hewson [2013] WASCA 15; BC201300361 at [76] per the court (‘It is the actual, not presumed, remoteness of relationships which is relevant as a factor in assessing whether provision is adequate’). Cf Devenish v Devenish [2011] WASC 129; BC201103074 at [74] per Pritchard J (who remarked that the applicant grandson’s moral claim was not as strong as the son of the deceased (who was the second defendant, and the sole beneficiary of the deceased’s will), which in turn was reflected in the quantum of the order for provision in the applicant’s favour; the outcome must, though, also be viewed against the backdrop of the son having greater need than the applicant). Kitson v Franks [2001] WASCA 134; BC200102084 at [69] per Parker J, with whom Kennedy J agreed. As to what is meant by ‘special need’ or ‘special claim’, see 17.68–17.73. Kitson v Franks [2001] WASCA 134; BC200102084 at [71] per Parker J, with whom Kennedy J

agreed (referring to ‘the relative remoteness of the relationship of grandchildren’). 200. MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 95; BC200305001 at [222] per DoddsStreeton J. See, for example, Missen v Missen [2016] VSC 539; BC201608031 at [77] per Daly AsJ (remarking that the proposition that the applicant’s grandfather ought to have made over a substantial proportion of his estate to the applicant, in preference to his remaining grandchildren and to the detriment of his faithful only surviving son, ‘might offend community standards, particularly when the young person concerned is well supported by his family and has a substantial nest egg of his own’). 201. MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 95; BC200305001 at [220] per DoddsStreeton J. 202. MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 95; BC200305001 at [221] per DoddsStreeton J. See also Petrucci v Fields [2004] VSC 425; BC200407183 at [64] per Mandie J (‘The obligation of living parents to provide for their children does not necessarily negate, in an appropriate case, the moral responsibility of a grandparent to make provision for the maintenance and support of those grandchildren out of his estate’). 203. [2014] NSWSC 536; BC201403319 at [200]. 204. Chalk v Hoare [2009] NZFLR 736 at [42] per Simon France J. 205. [2004] VSC 425; BC200407183 at [65] (adding that a wise and just testator would not have been bound to make any provision for the immediate needs of the grandchildren, but would, ‘looking at the family line constituted by the first plaintiff and her adult children, and considering the loss of their husband and father, conclude that he had a responsibility in the particular circumstances to make some provision for the grandchildren’s future needs’: at [66]). 206. [2009] VSC 463; BC200909367. 207. Day v Raudino [2009] VSC 463; BC200909367 at [21] (the case involved an application to extend time within which to apply for provision (see 17.21, 17.22), and his Honour’s finding as to an arguable case led him to extend time). 208. [2014] VSC 248; BC201406549. 209. MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 95; BC200305001 at [63] per Dodds-Streeton J, referring to Leahey v Trescowthick [1999] VSC 409; BC9907043 at [37] per Warren J. 210. (2003) 11 VR 95; [2003] VSC 95; BC200305001 at [234]. See also Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392; BC201409683 (where the deceased grandfather’s financial support in relation to his grandchildren’s education and training ‘did not indicate anything beyond the frequently encountered situation of financial assistance to an adult son or daughter in meeting family expenses, particularly those related to children’s maintenance and education’ and did not support a conclusion that the deceased should, according to community standards and expectations, have made any provision for the applicant grandchild: at [98] per Barrett JA; his Honour was also influenced, in so ruling, by the absence of any true in loco parentis relationship or one that involved ‘the bestowing of any special care or affection’). 211. Cf Family Protection Act 1955 (NZ) s 3(2) (which states that, in considering any application by a grandchild of any deceased person for provision out of the estate of that person, the court, in considering the moral duty of the deceased at the date of his death, ‘shall have regard to all the circumstances of the case, and shall have regard to any provision made by the deceased, or by the Court in pursuance of this Act, in favour of either or both of the grandchild’s parents’). 212. Re Baker (deceased) [1962] NZLR 758; Contencin v Tasmanian Perpetual Trustees Ltd [2010] TASSC 3; BC201000754 at [20] per Holt AsJ. 213. [2010] NSWCA 103; BC201002832 at [38] per Young JA, with whom Tobias and Macfarlan JJA agreed.

214. 215. 216. 217. 218. 219. 220. 221. 222. 223. 224. 225. 226. 227. 228.

229.

230. 231. 232.

233. 234.

235.

236.

See McCarthy v McCarthy [2009] NSWSC 774; BC200907373. McCarthy v McCarthy [2010] NSWCA 103; BC201002832 at [37]. See 17.72. ACT s 7(1)(d); NT s 7(1)(d); Qld s 41(1) (refers to a ‘child’ of the deceased person having standing; s 40 defines ‘child’ to mean, inter alia, a stepchild of the deceased person); Tas s 3A (refers to ‘children’ of the deceased person having standing; under s 2(1), ‘child’ includes a stepchild). SA s 6(g); WA s 7(1)(ea). Before 16 January 2013, Western Australia recognised no avenue for stepchildren to seek provision from a step-parent’s estate. WA s 7(1)(eb). The prescribed amount is $517,000: Family Provision Regulations 2013 (WA) reg 3. Vic s 91(1) (in its pre-1 January 2015 form). Pursuant to the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic): see 16.52. Vic s 90 (paragraph (c) of definition of ‘eligible person’). Vic s 90 (paragraph (f) of definition of ‘eligible person’). Vic s 91(4)(c). Bail v Scott-Mackenzie [2016] VSC 563; BC201608040 at [6], [7], [50], [51], [107]–[114] per Derham AsJ. NSW s 57(1)(e). As to the meaning of ‘household’ and ‘dependent’ in this context, see 16.21 (‘household’), 16.22–16.29 (‘dependent’). (SC(NSW), Cohen J, 20 February 1987, unreported) BC8701578 at 10. Freeman v Jaques [2005] QSC 200; BC200505211 at [39] per Mullins J (aff’d Freeman v Jaques [2006] 1 Qd R 318; [2005] QCA 423; BC200509863). See also Robertson v Koska [2010] VSC 134; BC201002212 at [86]–[98] per Vickery J; Re Estate of Bennett (deceased) [2012] VSC 158; BC201202457 at [14], [15] per Zammit AsJ. [2006] 1 Qd R 318; [2005] QCA 423; BC200509863 at [29], with whom de Jersey CJ and McPherson JA concurred (footnote omitted). See also Re Estate of Bennett (deceased) [2012] VSC 158; BC201202457 at [49] per Zammit AsJ (who, in the context of a claim for provision by stepchildren, remarked that ‘[t]he fact of less intensity and less contact in adult years does not detract from what was for a significant period a very close relationship akin to father and son between the plaintiffs and the deceased’). (SC(NSW), Cohen J, 20 February 1987, unreported) BC8701578 at 10. (1987) 8 NSWLR 679. Re Fulop (deceased) (1987) 8 NSWLR 679 at 683. See also Churton v Christian (1988) 13 NSWLR 241 (where the applicant lived as a member of her stepfather’s household from about the age of 5 until she was 20, in circumstances that ‘most people would regard the relation between [the deceased] and [the applicant] as being either that of father and daughter, or if not precisely that, so close to such a relationship as to make no practical difference’: at 252 per Priestley JA). Freeman v Jaques [2005] QSC 200; BC200505211 at [40] per Mullins J (aff’d Freeman v Jaques [2006] 1 Qd R 318; [2005] QCA 423; BC200509863). See, for example, Re Callaghan (deceased) [1984] 3 All ER 790; Re Leach (deceased) [1986] Ch 226; McKenzie v Topp [2004] VSC 90; BC20040144 (where from the age of 10 ‘until her death [the deceased] was the only mother figure that [the applicant stepchild] knew and in effect she was the only mother figure that he ever knew’: at [17] per Nettle J). Freeman v Jaques [2005] QSC 200; BC200505211 at [57] per Mullins J (aff’d Freeman v Jaques [2006] 1 Qd R 318; [2005] QCA 423; BC200509863). See, for example, James v Day [2004] VSC 290; BC200405594. See, for example, Fry v Fry [2014] NZHC 2256; BC201463240 (where Moore J described the

237.

238. 239.

240. 241. 242.

243. 244. 245. 246. 247. 248. 249. 250. 251. 252.

253. 254.

deceased’s agreement with his wife to make testamentary provision for the deceased’s children as ‘palpably uncertain and entirely dependent on events and variables over which there can be little or no ability to control’, and so did not discharge the deceased’s moral duty to his children: at [25]). See, for example, Stewart v Stewart [2015] QSC 238; BC201508410 (where the deceased’s son (M) suffered chronic post-traumatic stress disorder and other mental illnesses, and lived in a car and other unsatisfactory accommodation, Applegarth J declared that ‘[a] hope that his son might eventually benefit by inheriting part of his wife’s estate did not meet [M’s] moral claim or address the relative urgency of his need for stable accommodation and for resources to live comfortably: at [37]). [2008] NSWCA 190; BC200807314. Smilek v Public Trustee [2008] NSWCA 190; BC200807314 at [32], [33] per the court. Cf McCann v Ward [2012] VSC 63; BC201200805 (where Hargrave J made a $750,000 order for provision for the deceased’s stepchild, chiefly due to her financial need, where a large estate was involved and the deceased’s natural children were wealthy). [1960] Tas SR 46 at 48 (emphasis supplied). Freeman v Jaques [2005] QSC 200; BC200505211 at [48] per Mullins J (aff’d Freeman v Jaques [2006] 1 Qd R 318; [2005] QCA 423; BC200509863). As in Graziani v Graziani (SC(NSW), Cohen J, 20 February 1987, unreported) BC8701578 at 13 (leading his Honour to conclude that, even though the stepchildren were ‘quite young’ when they became part of the deceased’s household in which they remained for some years, and the relationships continued after the stepchildren left his home, the testator did not need to place the applicant stepchild at the same level as his own children). (1991) 25 NSWLR 343 at 347 per Hope AJA, with whom Clarke and Sheller JJA concurred. Petrohilos v Hunter (1991) 25 NSWLR 343 at 345 per Hope AJA, with whom Clarke and Sheller JJA concurred. ACT s 7(1)(f); NT s 7(1)(f); Qld ss 40 (definition of ‘dependant’), 41; SA s 6(i); Tas s 3A(c); WA s 7(1)(e). Qld ss 40 (definition of ‘dependant’), 41. SA s 6(j). NSW s 57(1)(e). As to the meaning of ‘household’ and ‘wholly or partly dependent’, see 16.21 (‘household’), 16.22–16.29 (‘wholly or partly dependent’). Graziani v Graziani (SC(NSW), Cohen J, 20 February 1987, unreported) BC8701578 at 10. Vic s 91(1) (in its pre-1 January 2015 form). See 16.47–16.51. Vic s 90 (paragraphs (d), (g), (h), (j) and (k) of the definition of ‘eligible person’). See, for example, Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35; BC201300599 (where the deceased had treated the applicant, who resided in the Philippines and was allegedly conceived during one of the deceased’s business trips to that country, like a daughter, showing a longstanding financial and emotional interest in her well-being; even though it was later proven that the deceased was not in fact the applicant’s father, Hargrave J held that, under the former Victorian regime, it was appropriate to make provision for the applicant, to the tune of $675,000, out of the deceased’s $4.75m estate; facts of this kind could, assuming that the applicant believed the deceased to have been her father, trigger eligibility under the current Victorian regime). ‘Registered caring partner’ of a person who dies means a person who, at the time of the person’s death, was in a registered caring relationship with the person within the meaning of the Relationships Act 2008 (Vic): Vic s 3(1). For this purpose the court must disregard any means-tested government benefits that the eligible person has received or is eligible to receive: Vic s 91(3).

255. 256. 257. 258. 259. 260. 261. 262. 263.

264.

Vic s 91(2)(b). Vic s 91(5)(b). [2005] VSC 323; BC200505944. The evidence indicated that the applicant (aged 47) lived in rented Housing Commission accommodation, depended on a disability pension, was unlikely to work again, required medical treatment, had no fund saved or ability to save and a likely need to borrow in the future. Iwasivka v State Trustees Ltd [2005] VSC 323; BC200505944 at [101]. [2011] VSC 32; BC201100505 at [55]. Jackson v Newns [2011] VSC 32; BC201100505 at [56]. Jackson v Newns [2011] VSC 32; BC201100505 at [59]. Napolitano v State Trustees Ltd [2012] VSC 345; BC201205961 at [31] per Mukhtar AsJ. See also Erlich v Fleiszig [2013] VSC 63; BC201300824 at [122] per Lansdowne AsJ (‘It is very unusual for a court to find that an affectionate relationship providing some support and assistance to an extended family member is sufficient to establish a moral responsibility in that family member to make provision for the other, unless the relationship is akin to parent/child or domestic partner’). See, for example, Petrucci v Fields [2004] VSC 425; BC200407183 (discussed at 18.42); Unger v Sanchez [2009] VSC 541; BC200910756 (discussed at 16.49). Cf Corbett v State Trustees Ltd [2010] VSC 481; BC201007929 (where the application for further provision by a family friend of the deceased who, in years past, had a relationship with him akin to that of niece and uncle was refused).

[page 649]

CHAPTER 19

Relevant Considerations in Making Order Statutory Approach Between Jurisdictions Overview Statutory lists of criteria/factors Australian Capital Territory New South Wales Victoria

19.1 19.1 19.3 19.3 19.4 19.5

Size of the Deceased’s Estate

19.6

‘Character and Conduct’ of the Applicant Statutory recognition of relevance of ‘character and conduct’ Nature of inquiry Illustration in the context of applications against a parent’s estate Need for applicant’s ‘character and conduct’ to affect deceased’s moral duty Estrangement Cause of estrangement Estrangement capable of denying moral claim Impact of other (non-conduct) factors Inquiry not primarily about apportioning blame Increasing weight accorded to ‘paternity’ Misconduct of the applicant vis-à-vis the deceased Criminal or other illegal behaviour by an applicant Applicant who engages in (illegal) drug use

19.9 19.9 19.10 19.11

Conduct of the Deceased Promises by the deceased

19.28 19.32

19.13 19.15 19.16 19.17 19.18 19.19 19.20 19.22 19.24 19.26

Relevance of the testator’s reasons Statutory provisions Curial approach Timing of testator’s will or changes thereto Agreements relating to testamentary disposition Pre-nuptial agreements Other agreements relating to, or restricting, testamentary disposition

19.34 19.35 19.37 19.39 19.40 19.41 19.43

Impact on Availability of Pension or Other Social Security Payments

19.47

[page 650]

Statutory Approach Between Jurisdictions Overview 19.1 The parliaments of the Australian Capital Territory, New South Wales and Victoria have seen fit to prescribe a lengthy list of factors relevant to the exercise of the court’s jurisdiction and discretion to order provision.1 In the Australian Capital Territory (and, before 1 January 2015,2 Victoria) the court is obliged to have regard to the listed factors — albeit only to the extent to which it is relevant3 — whereas in New South Wales and now in Victoria the statutory language is facultative (‘may’) as opposed to imperative (‘must’).4 The factors inform the exercise of both the ‘jurisdictional’ and the ‘discretion’ stages of the court’s inquiry in the Australian Capital Territory, and in New South Wales (and formerly Victoria) are expressed also to be relevant to an applicant’s eligibility to seek provision. Having said that, not every factor listed is relevant to each of these inquiries;5 for instance, most of the factors are largely, if not wholly, irrelevant to the question of eligibility.6 Also, no one factor prescribes a particular result or is necessarily decisive, and the statute in no way purports to rank their importance; the weight accorded to any one factor rests upon the facts of the particular case.7 In any case, the factors listed are not intended to be exhaustive; the list culminates with ‘any other matter the court considers relevant’.8 Although the list exhibits considerable

similarities between jurisdictions, detail differences that remain justify each being addressed separately below. 19.2 In all jurisdictions, the legislation identifies an applicant’s ‘character and conduct’9 and, in the Northern Territory, any benefits conferred upon an applicant by the exercise of a general or special power of appointment under the deceased’s will, as a relevant inquiry.10 In Tasmania, the court must also have regard to the net value of the deceased’s estate11 and whether an applicant has independent means.12 That the aforesaid do not exhaust the factors capable of influencing the jurisdictional and discretionary stages of a court’s inquiry is evident from the fact that the lists in the Australian Capital Territory, New South Wales and Victorian statutes, to a substantial degree, reflect criteria identified by the courts at general law. Prominent in the case law, to this end, are factors including the size of the estate, the conduct of the applicant and/or the deceased, any promises made by the deceased, any reasons proffered by the deceased, the timing of the deceased’s will or a relevant change to the will, any agreements relating [page 651] to testamentary disposition, and the impact of provision on an applicant’s social security entitlements. Each is elaborated in this chapter.

Statutory lists of criteria/factors Australian Capital Territory 19.3 The Family Provision Act 1969 (ACT) states that the court may only make an order for provision if satisfied, ‘in consideration of the [following] criteria’, that adequate provision is not available for the proper maintenance, education or advancement of the applicant:13 • the character and conduct of the applicant; • the nature and duration of the relationship between the applicant and the deceased;

•

• • • • • • • •

any financial and non-financial contributions made directly or indirectly by or on behalf of either or both the applicant and the deceased to the acquisition, conservation or improvement of any of the property or financial resources of either or both persons; any contributions (including in the capacity of homemaker or parent) by either the applicant or the deceased to the welfare of the other, or of any child of either person; the income, property and financial resources of the applicant and the deceased; the physical and mental capacity of the applicant, and the deceased (during his or her life), for appropriate gainful employment; the financial needs and obligations of the applicant and the deceased (during the life of the deceased); the responsibilities of either the applicant or the deceased (during his or her life) to support any other person; the terms of any order made under the Domestic Relationships Act 1994 (ACT) with respect to the property of the applicant or the deceased;14 any payments made to either the applicant or the deceased by the other, under an order of the court or otherwise, in respect of the maintenance of the other person or any child of the other person; any other matter the court considers relevant.

New South Wales 19.4 The court may have regard to the following matters, set out in s 60(2) of the Succession Act 2006 (NSW), for the purpose of determining whether an applicant is eligible for provision, and whether to make a family provision order and the nature of any such order:15 [page 652] • any family16 or other relationship17 between the applicant and the deceased, including the nature and duration of the relationship; • the nature and extent of any obligations or responsibilities owed by the deceased to the applicant, to any other person in respect of whom an

• •

• •

• •

• • • • •

application has been made for a family provision order or to any beneficiary of the deceased’s estate; the nature and extent of the deceased’s estate18 and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered; the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased’s estate; if the applicant is cohabiting with another person — the financial circumstances of the other person; any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased’s estate that is in existence when the application is being considered or that may reasonably be anticipated; the age of the applicant when the application is being considered; any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased or to the welfare of the person or the deceased’s family, whether made before or after the deceased’s death, for which adequate consideration (not including any pension or other benefit)19 was not received by the applicant; any provision made for the applicant by the deceased, either during the deceased’s lifetime or made from the deceased’s estate; evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased; whether the applicant was being maintained, either wholly or partly, by the deceased before the deceased’s death and, if the court considers it relevant, the extent to which and the basis on which the deceased did so; whether any other person is liable to support the applicant; the character and conduct of the applicant before and after the deceased’s death; [page 653]

• the conduct of any other person before and after the deceased’s death; • any relevant Aboriginal or Torres Strait Islander customary law;20 • any other matter the court considers relevant, including matters in existence at the time of the deceased’s death or at the time the application is being considered. The equivalent provision in the former New South Wales legislation likewise listed matters to be considered in this context. It referred to contributions of an applicant to the property and welfare of the deceased, the character and conduct of the applicant, circumstances existing before and after the death of the deceased, and any other matter the court considered relevant in the circumstances.21 Even though the former list was not, ostensibly, as detailed as the current one, it was hardly interpreted narrowly. The invitation to take account of any other matter the court considered relevant was, in particular, no invitation to a restrictive approach. In Goldberg v Landerer22 Rein J branded the statutory criteria as ‘very wide in scope’, and sought to identify the ‘circumstances’ and ‘matters’ that the case law had considered relevant to a determination. His Honour’s list, to this end, reads like a précis of the current New South Wales provision.23

Victoria 19.5 In making a family provision order, in Victoria the court must pay regard to the deceased’s will, if any, any evidence of the deceased’s reasons for making the dispositions in the will, and any other evidence of the deceased’s intentions in relation to providing for the eligible person.24 In making the order, the legislation contains a list of factors to which the court may have regard:25 • any family or other relationship between the deceased and the eligible person, including the nature of the relationship and, where relevant, its length; • any obligations or responsibilities of the deceased to the eligible person, any other eligible person and the beneficiaries of the estate; • the size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject;

[page 654] • the financial resources (including earning capacity) and the financial needs, at the time of the hearing and for the foreseeable future, of the eligible person, of any other eligible person and of any beneficiary of the estate; • any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate; • the age of the eligible person; • any contribution (not for adequate consideration) of the eligible person to building up the estate or to the welfare of the deceased or the deceased’s family; • any benefits previously given by the deceased to any eligible person or to any beneficiary; • whether the eligible person was being maintained by the deceased before that person’s death either wholly or partly and, where the court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility; • the liability of any other person to maintain the eligible person; • the character and conduct of the eligible person or any other person; • the effects a family provision order would have on the amounts received from the deceased’s estate by other beneficiaries; • any other matter the court considers relevant. This list of factors had its genesis in the 1998 amendments to the Victorian legislation,26 but had the effect of giving statutory form to factors that the courts had, prior to that time, customarily taken into account.27

Size of the Deceased’s Estate 19.6 Reflecting the position at general law, statute in the Australian Capital Territory, New South Wales and Victoria makes express reference to the size of the deceased’s estate in its list of criteria to which the court may or must have regard in exercising this jurisdiction.28 The case law reveals the obvious point that, all else being equal, a large estate will more likely support a claim for provision than a small estate. It follows that the merit of the applicant’s claim

must yield to the (limited) property available, adjudged against the various claims on that property.29 19.7 Although the basic principles informing the court’s jurisdiction remain notwithstanding the size of the estate — that is, the post-mortem disposition can only be affected to the extent necessary to discharge the moral duty by making adequate provision — in a large estate, competition between claimants, and between claimant and beneficiaries, is reduced [page 655] or even eliminated.30 There may, moreover, exist scope for a more liberal assessment of the moral duty owed, reflecting, say, the lifestyle that the applicant(s) had enjoyed due to their association with the deceased31 or, expressed in slightly different terms, their ‘station in life’ and the expectations to which that has given rise, including how they might reasonably expect to live in the future.32 The cases include some colourful statements of this approach. For example, it has been said, in the context of parental obligation, in assessing the need of an applicant for provision, that need may extend beyond ‘the bread and butter of life’ to include ‘a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit’.33 And, as regards the moral obligation of a testator to his or her spouse, the following has been remarked that:34 Proper maintenance is (if circumstances permit) something more than a provision to keep the wolf from the door — it should at least be sufficient to keep the wolf from pattering around the house or lurking in some outhouse in the backyard — it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail.

The foregoing provides the rationale, if the size of the estate permits and no serious prejudice to the rights of other beneficiaries will ensue, for the courts to order provision beyond the immediate and likely future needs of the applicant. Reference is sometimes made in this context to the provision of a ‘nest egg’ to guard against unforeseen events.35 Though a ‘reasonably generous approach’,36 it grants no licence to be ‘overgenerous with other people’s money’37 or ‘profligate in disposing of the assets of the deceased’.38 In each case, importantly, there is no statutory mandate for a court to do

more than remedy the deceased’s failure to make adequate provision for an applicant’s proper maintenance. Even so, this may be coloured by the sheer magnitude of the estate. In Mead v Lemon,39 involving an estate exceeding $400m, Sanderson M ruled that a $3m bequest to the deceased’s daughter — with whom he had little ongoing association, except to pay some childcare and school fees, and pocket money — through a trust structure that did not guarantee her that sum was inadequate provision in the circumstances. The Master conceded that the case was unusual, as the huge estate made it unnecessary to engage in the normal balancing exercise with the interests of other parties.40 In awarding the applicant $25m, his Honour opined that ‘most people would expect the plaintiff to be more than adequately provided for’, and that ‘[g]iven the size of the estate and the lack of limitation on any award it is difficult to believe a majority would not see it appropriate to set up the plaintiff for life’.41 In circumstances where the applicant contributed [page 656] to the deceased’s substantial estate, there may, moreover, be grounds to be more generous again in making an award proportionate to the size of the estate.42 19.8 Where the estate is small, and the competing claims on it are strong, proof by an applicant that he or she has been left without adequate provision for proper maintenance does not guarantee an order for provision. That the applicant has overcome the ‘jurisdictional’ stage of the court’s inquiry, in other words, is no assurance of the court finding in his or her favour at the ‘discretion’ stage. The case law reveals multiple occasions where this has been the outcome. For example, in Savic v Kim,43 where the testator bequeathed his entire estate to his de facto wife, Hallen AsJ refused an application for provision by the children of his first marriage. The small size of the estate and the strength of the de facto wife’s competing claim, coupled with the inevitable prospect that any order for provision would require the house that the testator had long shared with his de facto wife to be sold, led his Honour to this conclusion. He conceded that inadequate provision had been made for the children by the testator’s will, and that the deceased would have been bound to

do more had he possessed more when he died, but that the outcome, though ‘an unfortunate result’ so far as the children were concerned, came about ‘because of the limited confines of the available assets in this estate’.44

‘Character and Conduct’ of the Applicant Statutory recognition of relevance of ‘character and conduct’ 19.9 The family provision legislation in each jurisdiction identifies an applicant’s ‘character and conduct’ as relevant to the court’s determination. In the Northern Territory, South Australia, Queensland, Tasmania and Western Australia it entitles the court to refuse family provision to a person whose character or conduct, in the court’s opinion, disentitles him or her to an order.45 In turn, this explains the frequent reference in case law to ‘disentitling conduct’, wherein the onus of proof lies on the estate because it is a defence to the claim for (additional) provision rather than an element of the claim.46 This terminology is not adopted in the current Acts elsewhere, which simply list an applicant’s ‘character and conduct’ as a relevant factor without reference to ‘bad’ (or ‘good’) conduct in this regard,47 but ‘character and conduct’ inquiries remain almost invariably aimed at whether a claim ought to be denied or reduced for ‘bad’ character or conduct. Even so, it should not be assumed that ‘bad’ conduct is, for this purpose, necessarily always punctuated by conduct that is morally or legally wrong; it may, for instance, simply stem from obstinacy or incompetence.48 [page 657]

Nature of inquiry 19.10 The statutory inquiry into ‘character and conduct’ has been branded as a strong indication that moral duty, and to this end moral considerations, underscore the family provision regime.49 Moral considerations in this context target the moral duty of the deceased indirectly. In an appropriate case, an

applicant’s poor character or conduct — a matter that clearly exhibits moral overtones vis-à-vis the applicant — may, it is reasoned, serve to confine or deny the deceased’s moral duty to make (further) provision for the applicant. This is not by way of punishment for the applicant’s bad conduct, the courts have reiterated,50 as the inquiry ostensibly has no punitive function; the distinction, though, is not one always easily drawn.51 That there is no fixed standard of poor character or conduct that may negatively impact on an applicant’s claim, the success of which is influenced by the totality of the circumstances, confirms that punishment by itself is not the driving force. Judges have noted, for instance, the ‘interrelationship between the conduct said to disentitle an applicant to relief and the strength of the need for provision from the estate’,52 in that the stronger the applicant’s need, the more reprehensible must his or her conduct have been to oust the claim for provision.53 And an applicant’s poor behaviour towards the deceased is not viewed in a vacuum, but must be assessed as against the deceased’s behaviour towards him or her.54

Illustration in the context of applications against a parent’s estate 19.11 The typical instance in which an applicant’s ‘character or conduct’ becomes an issue involves an applicant who seeks (further) provision from a parent’s estate. The scenario is often one where a parent has made a decision to deny, or otherwise confine, the testamentary provision for one or more of his or her offspring as a result of the latters’ poor ‘character or conduct’, whether towards the parent or more generally. The case law recognises the right of parents to make no provision for their children on ‘character or conduct’ grounds, say, for children ‘who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years’, the more so ‘where that callousness is compounded by hostility’.55 [page 658] A parent’s reasons for denying provision are admissible for this purpose.56

But they are not determinative. Otherwise the court’s statutorily conferred discretion to alter the allocation of a deceased’s estate would be fettered by the deceased himself or herself. The deceased’s reasons, rather than being accepted at face value, must be assessed against accepted community standards.57 Those reasons may reveal a reaction that is quite extreme, not (entirely) justified or irrational, or that fails to take into account the applicant’s rehabilitation,58 in which case a court may treat the allegedly offending conduct as not disentitling, or as otherwise reducing, the claim.59 19.12 Adopting accepted community standards as the benchmark means that these can shift with time. What may once have been legitimate grounds for denying provision to one’s offspring may prove less persuasive today. The issue may prove especially challenging when the reasons for denying provision centre on the applicant’s renunciation of, or even downright hostility to, the values, beliefs or institutions the deceased held dear. The court must, when so confronted, make a (value) judgment as to what, at the time of the hearing,60 represent accepted community standards. In Wenn v Howard,61 where the testator declined to make provision for three of his children on the ground that they had ceased to adhere to the religion in which they had been raised, McInerney J said: … the matter to be resolved is whether the conduct of the applicant is such as would, in the eyes of the right thinking and reasonable members of the community, disentitle the applicant to relief: it is not to be tested solely by reference to the question whether it evoked or was likely, having regard to testator’s own character and antecedents, to evoke his disapproval. It is not to be tested by whether the applicant’s conduct would incur the disapprobation not only of the testator but also of all sincere and reasonable people of his Church.

Whilst the testator doubtless regarded the applicants’ conduct with disapproval, his Honour reasoned that, in a pluralist society, it could not be said that ‘the community generally’ would regard their conduct as morally undeserving. Accordingly, renunciation of the testator’s religion was found not to impede the claim.62 More generally, the freedom of conscience and belief that inheres as a core value in modern society may provide a more compelling justification for a judge to find that, according to accepted community standards, attempts to deny provision solely on the ground of an applicant’s beliefs should not be (fully) effective.

Need for applicant’s ‘character and conduct’ to affect deceased’s

moral duty 19.13 It has been suggested that conduct of a ‘morally undeserving nature’ is ordinarily required before a testator ‘is regarded as absolved from what would otherwise be seen as his obligations to his offspring’.63 Inquiry into whether conduct is ‘morally undeserving’, rather than inviting investigation into abstract notions of morality in a philosophical, sociological or theological sense, targets whether and how the applicant’s conduct or character should impact upon the deceased’s moral obligation to make provision for him or her. In other words, the relevant character or conduct must, to be probative, relate to the purposes the legislation is intended to serve. The cases reveal multiple instances of applicants who have become [page 659] estranged from a parent, or otherwise treated a parent with hostility, disdain or contempt, but nonetheless seek provision from the parent’s estate. This (mis)conduct may explain why a parent has opted to deny or reduce any testamentary provision made for the child and may, depending on the circumstances, justify a court refusing or limiting any (additional) provision. But per se it is not ordinarily determinative of the application, which must be assessed by reference to the totality of the relevant circumstances. 19.14 In each case, because the court must determine, pursuant to the statutory terms, whether the deceased made adequate provision for an applicant’s proper maintenance and support, there must be a link between the ‘character and conduct’ and its effect on the deceased. As explained by Ormiston J:64 What is right and proper … is not determined by the ‘character and conduct’ of each applicant but by what the testator ought to have felt in duty bound to provide notwithstanding any defects in character or conduct but nevertheless having due regard to the nature of their relationship with and their treatment (whether morally reprehensible or the opposite) of the testator during his or her lifetime. It is only when that behaviour has affected, or (arguably) is perceived to have affected, the testator that he or she is in good conscience entitled to make lesser or greater provision for an applicant than that to which the applicant would have been entitled having regard only to the bare bones of his or her financial needs and circumstances.

It follows that an applicant’s (mis)conduct towards persons other than the deceased — for instance, where it evinces disinterest, hostility, abuse, and even violence towards other family members — can have relevance for the purposes of provision from the deceased’s estate only to the extent that it reduces the moral duty that the deceased may have otherwise owed the applicant. The same may be said of reprehensible conduct of a more general kind, including criminal or other behaviour capable of generating an adverse inference as to an applicant’s character,65 or character or conduct revealing an applicant as the author of his or her own need for maintenance,66 to the extent that it is capable of affecting the deceased’s moral obligation. It is difficult, for this reason, to conceive how an applicant’s (mis)conduct subsequent to the death of the deceased should be relevant to the court’s inquiry, as it has no effect on the deceased.67

Estrangement 19.15 The nature of the relationship between the deceased and the applicant can impact on the nature and scope of any moral duty to make provision for the applicant. It is recognised as a relevant factor in the Australian Capital Territory, New South Wales and Victorian legislation,68 which in any case replicates the general law. As explained by Adam J in Re Buckland (deceased):69 It is now well recognized that in determining the strength of the moral claim of an adult child upon its parent, and correspondingly the measure of proper maintenance to be provided by a testator in all the circumstances, it is proper to take into account the conduct of the claimant towards the testator and their mutual association and the closeness of the bond existing between them.

[page 660] The foregoing dovetails into the statutory inquiry into the ‘character and conduct’ or ‘disentitling conduct’ of the applicant (although the term ‘estrangement’ describes not conduct, but the condition that results from the attitudes or conduct of one or both parties).70 Accordingly, a period of estrangement preceding the death of the deceased, coupled with the reasons

and responsibility for that estrangement, may serve to reduce or even deny a claim for provision in circumstances that may otherwise have presented a compelling case.

Cause of estrangement 19.16 Estrangement entirely caused and sustained by the deceased’s unreasonable conduct or attitudes cannot alone amount to disentitling conduct on the part of the applicant.71 In Green v Holtom,72 where the testator withdrew himself from the relationship when his son was young and thereafter made no real effort to re-establish contact, Johnson J viewed the absence of a relationship as ‘wholly attributable to the conduct of the father’ and no reason for denying an award in favour of his (now) adult son. Also, that an applicant discontinued contact with the deceased because of the latter’s difficult personality73 or abuse of the applicant74 will neither preclude nor likely reduce an otherwise legitimate claim for provision. At the same time, courts recognise that a period of estrangement can reduce the moral claim of an applicant (usually a child of the deceased) for provision from a parent’s estate if the applicant has been responsible (in part) for the estrangement.75 This is more likely the case where a child has ruptured family ties for reasons that the court considers incapable of wholly justifying this estrangement. For instance, though McLelland J in Leek v Friedman76 did not [page 661] consider that the entitlement otherwise arising should be regarded as having been extinguished by the neglect of the deceased over the last 11 years of her life, his Honour held that the measure of entitlement ‘should certainly be treated as having been reduced by that circumstance’.

Estrangement capable of denying moral claim 19.17 That an applicant’s estrangement from the deceased reveals a complete disregard for the deceased’s needs, in particular as the deceased aged, may incline the court to refuse provision altogether. As a matter of morality

and justice, it sits poorly for a child who without good reason has disclaimed a familial relationship to then seek to maintain that relationship for his or her own financial benefit. The ‘unilateral abandonment of a father for 14 years from when he was aged 76 until he died at aged [sic] 90 with a single abusive encounter in that period’ that occurred in Ford v Simes,77 which the court found inexplicable, was held to entitle the testator to make no provision for the applicant. In so ruling Bergin CJ in Eq, with whom Tobias JA and Handley AJA concurred, noted that the deceased spent the final 14 years of his life without assistance from the applicant, without any communication (except the abusive encounter) from the applicant, and without the benefit of love from a child he had nurtured and financially assisted during his formative years. In Sim v Public Trustee78 the applicant’s deliberate decision to exclude her mother from her life, to which she adhered despite her mother’s overtures of reconciliation, was found to be such that ‘it would not be expected by the community that the [mother] should have made any testamentary provision for [the applicant]’.

Impact of other (non-conduct) factors 19.18 As in other contexts, the moral duty of a wise and just testator is influenced by the size of the estate and the competing claims to it. The moral claims of the testator’s children, for instance, may lose priority to those of the testator’s spouse, especially where the spouse has supported the testator whereas the children have been distant or disinterested. An example is found in Temple v Cowell,79 where the deceased’s two adult children sought provision from the estate, of which the deceased’s residence was the only significant asset. Judge Lunn, in refusing the application, was influenced not only by a finding that the children had not seen or contacted their father for a decade preceding his death, but by the competing claim of the deceased’s partner, who had nursed the deceased through many years of ill-health.80 The testator’s moral duty is also influenced by the applicant’s need. In Dodge v Blissenden,81 involving estrangement between father and son for the last 8 years of the father’s life, Blow J opined that, had the applicant been very needy, the estrangement would have reduced, rather than extinguished, the applicant’s moral claim. The maturity of a child at a time when the estrangement from a parent

occurred, and subsisted, may factor into questions of moral duty. A period of estrangement at a time of immaturity may be less probative against a family provision order than one that persists well into adulthood,82 except to the extent that it is primarily a product of the parent’s conduct or attitudes. [page 662]

Inquiry not primarily about apportioning blame 19.19 Importantly, though the conduct of the applicant vis-à-vis the deceased, and vice-versa, is relevant to a claim for provision, the court’s main focus is not directed to attributing fault or blame for the estrangement. And the size of the estate, competing claims on it, and the applicant’s need, as mentioned above, are distinct from the parties’ conduct. The statutory reference to ‘conduct’ or ‘disentitling conduct’ thus reflects only an aspect of the court’s discretion, which must be informed by the totality of the circumstances. Issues of fault within family relationships are, in any case, inherently complex; often relationship breakdowns have causes that are not exclusive to one party.83 Young J explained the point in the following terms in Walker v Walker:84 I do not consider that there is any purpose in analysing whose fault it was that the state of noncommunication came into place. In family relationships, hurts are inflicted or suffered sometimes consciously, sometimes unconsciously … It is often impossible to work out whether the degree of separation between parent and child at the date of the parent’s death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between. The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.

In the family provision context, too, there is the additional challenge that the deceased has no opportunity to defend the adequacy of the provision or the absence of any provision.85 At the same time, courts are alert to parental attempts, via reduction or denial of testamentary provision, to ‘punish’ one or more of their children for not conforming to parental ideals when it comes to the parent-child relationship. In Andrew v Andrew,86 for example, the testatrix bequeathed her daughter only $10,000 because, following a 35-year estrangement, she believed that the daughter did not act ‘as a daughter

should’. The New South Wales Court of Appeal held that reducing the daughter’s share for this reason was not justified, and ordered that she receive $60,000 by way of additional provision. Basten JA accepted that the estrangement had caused the testatrix pain, and that this was ‘entirely understandable’, but ruled that failure to make adequate provision in ‘an attempt to punish her daughter for her failure to provide love and affection to her aging mother’ was inapt.87 [page 663]

Increasing weight accorded to ‘paternity’ 19.20 The increasing recognition that ‘bare paternity’ can attract a moral duty to provide88 has given rise to judicial recognition that a state of estrangement or even hostility between the deceased and his or her child does not necessarily terminate the deceased’s moral obligation to provide for the child89 (though it may confine its amplitude).90 It has been observed that judges have tended to expect the hypothetical ‘wise and just testator’ to display ‘considerable understanding and forgiveness of filial estrangement or abuse’.91 As far back as 1981 Holland J addressed the significance of paternity in the following oft-cited remarks:92 If it is a case of a parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned for the child’s welfare. A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent’s hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed.

Consistent with the above observations, the existence of disagreements between parents and children is part and parcel of family relationships. Even major arguments do not, it has been said, usually mean that parents love the children any less or that their duties towards the children are in any way

diminished; nor do they usually dictate that the children are any less deserving of the parents’ love and support.93 As explained by Bryson J in Wentworth v Wentworth:94 A long-standing severance of a relationship with a parent, or even a clearly-established termination of all communication is not in the present age regarded as necessarily putting an end to moral duty; it may do so, but whether it does calls for appraisal in each case and is not reduced to a clear principle. Respectful submission to paternal wishes, even if they are reasonable, is not a condition of paternal duty. A whole view of the relationship and the character and conduct of both parent and child should now be taken, and the influence of character can be complex. Sometimes people’s characters cause them to be poorly disposed towards their parents, and the influence of this on a parent’s moral duty is not solely adverse to the child: people’s behaviour is influenced by their characters in ways from which few can escape, and of all people their parents have had most time and opportunity to influence character, understand it, become reconciled to it and tolerate its workings when unpleasant. In another age a different interpretation of the community’s sense of moral duty was probably correct, but it is my task to interpret moral duty in my own times. The idealised just and wise testator of the present age knows now that he should not expect submission to his wishes, and knows that his children will be themselves no matter whether he likes it or not, and that they [page 664] will feel free to interact with any hostile or unreasonable conduct of his own. Courts no longer attribute the characteristic of being stern to the idealised testator …

19.21 At the same time, the foregoing should not be read as the law undermining freedom of testation, and with this an informed and ultimately justifiable parental choice to reduce or deny provision for offspring, even in the face of need. The case law reveals various instances where parental decisions in this context have been affirmed by curial refusal to allow (further) provision for their one or more of their offspring. In Burke v Burke,95 for example, the deceased omitted from her will a son (T), from whom she was estranged, instead benefiting T’s son and other siblings. Rein J found that the evidence supported the deceased’s view that T ‘had decided he wanted nothing to do with her or the rest of the family’ by reason of ‘a desire to create a new life without his family as a part of it’.96 The deceased was, according to his Honour, thus entitled to regard T as a person undeserving of benefit from her estate, being a view that members of the community would not regard ‘as not right or as inappropriate even were the deceased to be aware that her son had fallen on hard times’.97 Hence, despite T’s poor financial position, and that the estate could afford to make provision, his application for provision was

refused. Rein J’s decision was affirmed on appeal, where Emmett JA noted that ‘[a]n appellate court should acknowledge the entitlement of a deceased person, in certain circumstances, to make no provision for an adult child, particularly in respect of a child who, over many years, withholds, without proper justification, support and love from a parent’.98

Misconduct of the applicant vis-à-vis the deceased 19.22 Outside of estrangement and disinterest in the deceased’s welfare, there are occasions where acts, as opposed to omissions, of the applicant towards the deceased may serve to reduce or deny a claim for provision. If the evidence reveals that the applicant has treated the deceased callously, there may be grounds to conclude that the applicant has forfeited any moral claim to the deceased’s estate. Repeated and ongoing threats of violence and open hostility to a parent may be probative in this regard.99 It has been observed, to this end, that ‘[a] person who is violent towards a testator cannot simply expect to be provided for in a will or if not provided for to come before the court and receive a proportion of the estate. The acts of violence reap their own reward’.100 The same may be said regarding ongoing domestic violence or abuse. For instance, in Murphy v Stewart101 the applicant had been guilty of violent physical and emotional abuse towards his former wife, while the parties cohabited and also thereafter. Nor had the applicant made any contribution to the assets of the deceased or beyond a very small contribution to their daily living expenses during cohabitation. In these circumstances, Palmer J ruled that the applicant’s conduct ‘would generally be regarded, according to current attitudes and expectations in [page 665] the community, as disqualifying him as a natural object of testamentary recognition by the deceased’.102 Conversely, an applicant’s sole act of domestic violence towards his wife (the deceased) nearly two decades earlier did not,

according to Ward J in Cross v Watson,103 elevate the position of the daughters, as beneficiaries of the deceased’s will, above that of the applicant to the extent that to do so would severely diminish the applicant’s ability to maintain appropriate accommodation for himself in his old age. In each case the court must assess the nature and frequency of the proven misconduct, balancing this against the need of the applicant and the competing claims on the estate. Where the acts of the applicant disclose a calculated process of undermining the relationship with the deceased, a court may be left with little option but to conclude that any moral claim has expired with this. For example, in Wentworth v Wentworth104 the applicant had, in the years preceding her father’s death, sued him, made awful allegations of impropriety against him, and written him two letters in terms that were destructively hurtful. Cole JA held that the applicant’s conduct ‘so destroyed any relationship which she might have had with her father that she surrendered any claim upon his bounty’.105 A finding that the applicant had received significant provision from her father during his lifetime bolstered the court’s refusal of the application. 19.23 The most extreme example of misconduct of an applicant vis-à-vis the deceased is where the former kills the latter. As a person found guilty of the murder or manslaughter of another person cannot gain through any inheritance, whether under the deceased’s will or the rules of intestate succession (the ‘forfeiture rule’),106 it would not be consistent with the policy underscoring this rule — that a person ought not to profit from his or her own wrong — that a person should be able to circumvent it by securing an order for provision from the deceased’s estate. As the forfeiture rule is a ‘well established principle of public policy’, the family provision legislation must be regarded as having been enacted against the background of the rule.107 It has been remarked, to this end, that it would be ‘strange’ were the law to deny a person the benefit given by the deceased’s will but were then to award under family provision legislation the person the whole, or a part, of the estate that public policy has denied the person.108 Such an outcome would be, in the words of an Australian judge, ‘an affront to the public attitude which is the basis for the forfeiture rule’.109

Criminal or other illegal behaviour by an applicant 19.24 Having a criminal record is not, by itself, a bar to an applicant’s claim for provision from the estate of a parent (or person in loco parentis). It is one factor that, when taken together with other relevant factors, may sway a court to refuse or restrict an order for provision, to the extent that it impacts on the moral duty of a wise and just testator to provide for his or her children. So illegal conduct by an applicant can be a part of a bigger picture that proves determinative. For example, in Hastings v Hastings110 the applicant, a son of the deceased, had been involved in serious crimes involving the importation and distribution of marijuana in America. His arrest received media coverage that reached the deceased’s community, leading [page 666] the deceased to feel ‘shunned’ and ‘embarrassed’.111 The applicant’s conviction on another occasion resulted in forfeiture of his assets. In a ruling affirmed on appeal,112 White J refused his application for provision from the deceased’s estate, reasoning as follows:113 The deceased was well able to judge the relative desserts of her children … The plaintiff’s character and conduct, the fact that his financial needs are due to his own fault, the shame his conduct brought on the deceased and the family, and the very slight contact he had with his mother during his adult life, indicate that he does not have a legitimate claim on his mother’s property. That is so notwithstanding his impecuniosity, his health problems and his belated care for his mother at the very end of her life. I do not think sensible members of the community would feel that in circumstances the plaintiff should have been provided for in the will even had the testatrix known of the plaintiff’s current financial circumstances and his current state of health.

19.25 At the same time, judges recognise the prospect of rehabilitation, and have on more than one occasion ruled that a testator’s moral duty to provide extended to one of their offspring who had ostensibly turned from their criminal ways. The ‘prodigal son’ parable114 continues to carry some moral sway in this regard. In Hoadley v Hoadley115 Young J ordered provision in favour of an applicant who had spent 20 years in prison. Even in the face of a long period of estrangement with the deceased116 and the fact that Young J could make no firm finding that the applicant was rehabilitated, the

applicant’s poor financial state, his prospects of rehabilitation due to a stable relationship with his partner, and that the residuary estate had been bequeathed to charity, led his Honour to so order. The case was factually unusual, moreover, as the commencement of the applicant’s offending coincided with an attempt by his father to kill his mother. Young J’s reasoning appears from the following extract:117 I then have to look at the matter objectively as a representative of the hypothetical member of the community who is imbued with a due sense of moral obligation. On that test I have to ask myself whether a son, who has been affected by trauma caused by the deceased attempting to murder his wife in 1963, who has lived a life of crime for twenty years, who has now found possible security, who is penniless, who if he is ever to be anything needs to be re-established, is a person whom the testator should have considered had a moral claim against him. It would seem to me that a son in that sort of position, almost a classical prodigal son, would be a person whom the community would expect a testator to have in consideration when making his will, especially where his duty to all other persons to whom he owed a moral obligation can be met.

A clearer case is Hackett v Public Trustee for the Australian Capital Territory,118 where Higgins J found that the major reason for the applicant’s exclusion from a share of the estate was the shame and disgrace his criminal behaviour caused, which, at the time, ‘would have warranted exclusion of the plaintiff from the testator’s estate, particularly as it could not then be said with any confidence that he had abandoned his criminally offending behaviours’. But as the applicant had subsequently abandoned a criminal lifestyle, his Honour did not believe that community standards would ‘support the rejection of the clear and strong claim for provision the [applicant] presently has’. Referring to the parable of the prodigal son, Higgins J noted that the applicant had attempted to reconcile with his father, ‘out of acknowledgement of his past unsatisfactory conduct and a desire to come to a rapprochement with him’.119 In each case, the relevant inquiry is whether any shame or disappointment that the deceased may have felt as a result of his or her child’s past criminal behaviour is, in all the circumstances as [page 667] they existed at the time of death, sufficient justification for a wise and just testator to make little or no provision for the child. Hoadley and Hackett reveal that

shame or disappointment, even if justifiable at the time, may nonetheless yield to a moral duty to make provision at a later time. That, had the applicant been a person of stronger character, his or her downfall into criminality may not have ensued, is by itself not a ground to deny provision, at least not if that downfall has been impacted by factors outside his or her control and/or there is evidence that he or she has been, or is on the way to being, rehabilitated. For example, in Herszlikowicz v Czarny120 the applicant’s impecuniosity derived from ‘a combination of mere foolishness, extravagance, excessive gambling to the point of addiction, drug addiction, weakness of character and even moral turpitude attracting criminal convictions and penalties’. At the same time, said Hargrave J, the applicant’s failings and current position of great need had been contributed to by extremely poor health, in that his drug addictions had been initiated by severe back pain. As ‘his downward spiral from prosperity to penury can, in large part, be seen as the result of these addictions and their consequent effect upon his actions’,121 the applicant’s father was not, according to his Honour, justified in making only a small bequest to the applicant. The reasonably large size of the estate influenced this outcome.

Applicant who engages in (illegal) drug use 19.26 There are various occasions in the case law where a parent has refused or restricted provision for a child by reason of the child being a drug user or addict. To the extent that the drug use or addiction produces criminal behaviour, the principles discussed above apply in equal measure.122 But aside from aspects of criminality, a parent’s disappointment in the child’s drug use may explain the failure to provide for the child. As explained by Campbell JA, with whom Giles JA and Handley AJA concurred, in Hampson v Hampson by reference to marijuana use:123 … in my view marijuana use is a matter that the wise and just parent would be likely to take into account in deciding to make provision for a child, or in fixing on the type and amount of provision to make for a child. Thus, it can be taken into account by the court in deciding whether provision made for a child is inadequate for proper maintenance, education and advancement in life, and also in deciding what would be adequate for proper maintenance, education and advancement in life.

19.27 Yet the moral duty to make provision for a person’s children dies hard, as appears from multiple cases where courts have granted provision to persons who suffer an addiction, whether related to drugs — legal124 or not125 — or something else (such as gambling).126 Thus it seems [page 668] that evidence that the applicant engages in drug use will not, by itself, oust a moral duty to provide. Outside the parental context, that de facto partners engaged in drug use, in which the survivor persisted after the deceased’s death, did not preclude Hallen AsJ from ordering provision in West v France.127 The deceased was not, it appeared, shunned or embarrassed by the applicant’s conduct; nor was the applicant’s financial position a direct result of his drug taking.128 To deny provision, his Honour added, ignored the close nature and 11-year duration of the relationship.129 If the drug use, or other addiction, has the capacity to undermine the applicant’s proper management of a sum awarded as provision, it is open to the court to frame the order in a prophylactic fashion.130

Conduct of the Deceased 19.28 In the Australian Capital Territory, New South Wales and Victoria, where the family provision legislation lists factors relevant to the court’s determination on an application for provision,131 no mention is made of the conduct or character of the deceased. Nor has the general law been forthcoming in explicitly giving recognition to the relevance of the deceased’s behaviour, whether generally or vis-à-vis the applicant. A reason for this is that, as the family provision regime targets whether a deceased made adequate provision for an applicant’s maintenance and support after the deceased’s death, the behaviour of the deceased will not ordinarily be relevant to this inquiry. It also dovetails into the notion that the jurisdiction to award provision is not one directed at righting previous wrongs committed by a deceased against an applicant.132

19.29 Notwithstanding the foregoing, the character and conduct of the deceased may not be entirely irrelevant to the critical inquiry. The latter involves investigating the nature of the relationship between the parties, which the deceased’s behaviour can go some way to explaining, especially where the question of any estrangement surfaces on the facts.133 The applicant’s contribution to the deceased’s estate or support may also be coloured by the deceased’s character or conduct; an applicant who makes that contribution in circumstances rendered trying by the deceased’s behaviour may, even though provision is not intended as a reward for service, make a more compelling case for (greater) provision than may otherwise have been so. 19.30 The deceased’s conduct in relation to the applicant may assume relevance in another significant way, too. If that conduct served to deprive an applicant for provision of opportunities in life, or otherwise, and is causally connected to the applicant’s need, the court may legitimately take that into account in determining whether proper provision has been made.134 Conversely, the deceased’s actions in making substantial inter vivos provision for the applicant may, usually together with other factors, serve to discharge the deceased’s moral duty to the applicant.135 [page 669] 19.31 Given the breadth of the curial discretion in family provision applications, endorsed in the Australian Capital Territory, New South Wales and Victoria by a statutory reference to ‘any other matter the court considers relevant’,136 there is no reason to confine the relevance of the deceased’s character and conduct to the above scenarios, albeit in each case aligning it to the critical statutory inquiry.

Promises by the deceased 19.32 In no jurisdiction does the family provision legislation make explicit mention of promises by the deceased to the applicant as relevant to whether the deceased has left adequate provision for the applicant’s maintenance.

Outside of proof of an enforceable contract between the applicant and the deceased, which unless recognised by statute (as in New Zealand)137 may prove difficult to establish, the doctrine of estoppel is the traditional vehicle through which promises are enforced. Yet a successful claim in estoppel rests on proof of a clear representation, together with reliance thereon to the representee’s detriment, in circumstances where, at least in equity, it would be unconscionable to allow the representor to resile.138 19.33 The foregoing has not precluded courts in family provision applications from taking into account promises of provision by a deceased vis-àvis an applicant, whether pursuant to the general statutory discretion, or under the banner of ‘any other matter the court considers relevant’ in jurisdictions with a statutory list of factors.139 It has been observed, to this end, that ‘[t]he community expects testators … to recognise the claims of those to whom they have made promises of support’,140 so that promises made and expectations raised by testators are relevant to ascertaining what is proper provision for an applicant,141 especially where the applicant has relied to his or her detriment on that promise or expectation. This has prompted some judges to brand the requirements of conscionable behaviour informing equitable estoppel as ‘philosophically closely analogous’ to the ‘moral duty’ concept142 that has traditionally underscored the family provision jurisdiction.143 Yet the utility of the analogy is unclear. Not only is the threshold for ‘unconscionable conduct’ that triggers estoppel comparatively high,144 reference to ‘moral duty’ in the context of family provision is not ordinarily directed to moral disapprobation of the deceased.145 And if there is unconscionable conduct of the kind that raises an estoppel, there seems little need to interfere, via legislation, with freedom of testation. What the cases suggest, rather, is that promises or assurances that are by themselves insufficient to raise an estoppel may, when coupled [page 670] with other relevant matters, go to what is proper provision.146 Accordingly, a promise or assurance by a testator may give support to, but will not itself

substantiate, a family provision claim.147

Relevance of the testator’s reasons 19.34 The importance of freedom of testation, and of that freedom being infringed by a family provision order only to the extent necessary to fulfil the deceased’s moral duty,148 dictates that a testator’s reasons for making or omitting to make provision for a person, to the extent these can be reliably identified, should as a matter of principle be admissible and relevant in a family provision application. Also as a matter of principle, because family provision legislation vests in the court a broad discretion to alter a deceased’s testamentary wishes, a testator’s reasons in this regard cannot bind the court in exercising that discretion.149

Statutory provisions 19.35 The general upshot of the foregoing has translated to statute in several jurisdictions. In the territories, statute directs the court, in determining an application for provision, to have regard to the testator’s reasons, so far as they are ascertainable, ‘for making the dispositions made by will or for not making provision or further provision, as the case may be, for a person who is entitled to make an application under the Act’.150 It also entitles the court to receive in evidence a statement signed by the testator, purporting to give the reasons for making or not making (further) testamentary provision for a person, as evidence of those reasons.151 In New South Wales, listed among the factors relevant to the court’s inquiry is ‘evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased’.152 The legislation in that jurisdiction does, however, contain a detailed provision dedicated to evidence from the testator, which also appears in the Western Australian Act.153 It states that, as a general rule, evidence of a statement154 made by a deceased person is admissible as evidence of any fact stated in it of which direct oral evidence by that person would, were he or she able to give that evidence, be admissible.155 But this general rule must be read in tandem with the following. Excluded from admissibility, unless the court otherwise orders, is an oral

statement made by the deceased of which there is lacking direct testimony156 by a person who heard or otherwise perceived the statement157 (except where the statement was made by the deceased while giving oral evidence in a legal proceeding, in which case it may be approved in any manner authorised by the court).158 A statement made by the deceased contained in a document may be proved by producing the document or, by leave of the court, by producing [page 671] a copy or the material part of it, authenticated in such manner as the court may approve.159 To determine questions of admissibility, the court may draw any reasonable inference from the circumstances in which a statement was made or from any other circumstances, including, in the case of a statement contained in a document, its form or content.160 Subject to the limitations noted above, the rule against hearsay does not apply.161 The Tasmanian Act allows, but does not require, the court to have regard to the deceased’s reasons for this purpose, and entitles it to accept such evidence of those reasons as it considers sufficient, whether or not that evidence would otherwise be admissible.162 But this does not restrict the evidence that is admissible, or the matters that may be taken into account, at the hearing of an application.163 The Victorian Act directs a court, in making a family provision order, to have regard to any evidence of the deceased’s reasons for making the dispositions in the deceased’s will (if any) and any other evidence of the deceased’s intentions in relation to providing for the eligible person.164 It adds that a court may accept any evidence of a deceased’s reasons ‘for making the dispositions in his or her will (if any) and for not making proper provision for the applicant, whether or not the evidence is in writing’.165 The evidence legislation in Queensland, South Australia and Western Australia states that certain statements in a document made by a deceased person, whether or not in a will, may be admitted as evidence of the truth of the facts asserted therein.166 But this has been branded ‘of limited utility in this context’,167 presumably because it does not allow a person to whom the deceased had made comments to give evidence to prove the truth of those

comments.168 19.36 Broader scope for admissibility is found in the evidence legislation in the territories, New South Wales, Tasmania and Victoria, which follows the putative national uniform model. Although it excludes hearsay evidence,169 it recognises two exceptions to this exclusion of potential relevance in this context. The first relates to evidence of a previous representation that is relevant for a purpose other than proving a fact intended to be asserted by the representation.170 It follows that, if a representation made by a deceased person is admitted as evidence of his or her reasons for making or not making a certain disposition, it may also be used to prove any fact asserted by the representation. The second exception arises where a person who made a previous representation is unable to give evidence about a fact asserted therein because he or she is dead.171 In this event, the legislation allows a fact asserted in the representation to be proved by the evidence of a person who saw, heard or otherwise [page 672] perceived the representation being made, or by a document that contains the representation made by the deceased person. As these exceptions are potentially broader than those found in family provision legislation,172 the National Committee for Uniform Succession Laws has recommended that issues relating to the admissibility of evidence in this context be located in evidence legislation.173

Curial approach 19.37 Assuming the issue of admissibility is overcome, the question then targets the weight to be accorded to this evidence. Of course, as with any admissible evidence, the question of weight depends heavily on the facts.174 Even where addressed by statute, the court is not compelled to attribute any particular weight to the evidence or to accept a statement of reasons as establishing the truth of what is asserted.175 What would otherwise be the case is made explicit in the territories and New South Wales, where the legislation

states that, if a written statement of a testator’s reasons is received in evidence, in determining what weight (if any) should attach to it, the court must have regard to all the circumstances from which any inference may reasonably be drawn about the accuracy of the matters referred to in the statement.176 What is clear is that admitting evidence of the testator’s reasons, though it may support freedom of testation, cannot, in line with earlier remarks, confine the court’s discretion. Thus ‘[e]vidence of reasons for failing to make adequate provision, however persuasive, cannot render a responsible person’s failure to do so immune from curial redress’.177 But to the extent that the testator’s reasons reveal something probative, whether at general law or under statutory criteria, they cannot be overlooked.178 They may address an applicant’s (lack of) contribution to the testator’s benefit, aspects of the applicant’s character and, more generally, the nature of the relationship between the applicant and the testator,179 all of which factor into the court’s discretion for family provision purposes. 19.38 There is no assumption, however, that the perceptions that underscore the testator’s reasons are necessarily accurate, or that they justify the provision made (or not made) for the applicant. The reasons do not, therefore, afford any proof of the objective facts they assert, and if the evidence does not support them, they cannot be acted upon simply because the testator [page 673] asserted or entertained them.180 A distinction must, thus, be drawn between evidence that proves the testator’s state of mind and that which establishes the truth of any adverse view the testator may have had.181 This explains the curial remark that ‘too much weight should not be given to the testator’s expressed intention’,182 especially as the court must apply an objective standard in assessing the adequacy of provision. And in some circumstances, reasons given for refusing provision to an applicant may themselves support the claim,183 say, if they reveal that the testator’s whims were objectively unfounded,184 that the testator was driven by prejudice that misaligns with community standards,185 or that the testator contributed to the breakdown in the relationship with the

applicant.186

Timing of testator’s will or changes thereto 19.39 The date at which the testator executed his or her will, or the date at which he or she altered the will, may be relevant to the court’s determination. For instance, a finding that the testator’s will was made well before the commencement of the relationship with his or her de facto spouse may be prima facie evidence, all else being equal, that he or she has failed to make adequate provision for the spouse’s proper maintenance.187 Conversely, the making of a new will, which reduces the testamentary entitlement of a person who has become more distant [page 674] in favour of one who is providing current support to the testator, may be indicative of the respective dynamics of the relationships involved, and thus capable of affecting a finding as to whether provision is, in each beneficiary’s circumstances, adequate.188

Agreements relating to testamentary disposition 19.40 The relevant statutes and case law dealing with the admissibility of a testator’s reasons on the question of the adequacy or otherwise of provision for an applicant highlight that a testator cannot, via those reasons, oust the court’s power to alter the testamentary disposition of his or her estate within the parameters set by the family provision legislation.189 This heralds a broader point, namely that the court’s statutory jurisdiction is incapable of being ousted by the terms of the testator’s will or any other document or agreement to which the testator is a party. Having conferred a broad jurisdiction upon the court, the respective parliaments have evinced no intention that it be displaced by private will.190 So, for instance, in Jones v Public Trustee191 the deceased’s letter to the Public Trustee, stating that ‘[s]hould any member of my family contest my will, their share is to be revoked and given to the named charities’,

had no effect on the court’s jurisdiction to make an order for family provision.

Pre-nuptial agreements 19.41 The more typical example in this context, though, involves a prenuptial agreement that purports to preclude a surviving party from making claims (except as allowed by the agreement) on the other’s estate. The issue has arisen most commonly in the event of second (or subsequent) marriages, where the parties have children from their first (or earlier) marriages and bring assets and/or income to the marriage. The intention is, in the ordinary case, to facilitate the provision by the deceased party for his or her own natural children (sometimes also grandchildren). The same principles apply in this context as apply to the admissibility of statements of reasons by a testator. A pre-nuptial agreement is therefore clearly admissible and, to the extent that it informs the factors relevant to the exercise of the court’s discretion to order provision, clearly relevant. But there may be reason to attach greater weight to a pre-nuptial agreement for this purpose, in circumstances like those noted in the preceding paragraph, than to a testator’s unilateral statement of (potentially uninformed, outdated or even prejudiced) reasons. After all, the fact that a pre-nuptial agreement is in the nature of a bargain reveals a judgment, made mutually rather than unilaterally, by the parties regarding their assessment of what is adequate provision, and so is directly relevant to informing ‘the totality of the relationship’ between its parties.192 In turn, this may arguably cause a court to exercise greater caution in ousting testamentary freedom. [page 675] 19.42 The foregoing hardly indicates that a pre-nuptial agreement should always prove determinative.193 The High Court has countenanced, to this end, cases in which the existence of such an agreement ‘will have little or no real significance’ by reason of the circumstances in which it was made or events occurring during the course of the marriage or relationship.194 The evidence may reveal, say, that the execution of the agreement was procured by fraud (in

its broadest sense). Or the length of time and change in circumstances between the date of the agreement and the death of one of the parties may be such that it is no longer a true reflection of the parties’ relationship.195 But in the case law to date — involving marriages later in life of not significant duration — these scenarios have not surfaced. Instead the courts have accorded determinative196 or at least substantial197 weight to the terms of the agreements in issue. Leaving aside the rare occasions where a pre-nuptial agreement may be vitiated by fraud, the more compelling case for downplaying its terms surfaces in the case of a lengthier marriage (usually because the parties are younger), pursuant to which the parties’ asset position alters during the course of time and/or they have children between them.

Other agreements relating to, or restricting, testamentary disposition 19.43 The law does not prevent a person from entering into an enforceable inter vivos agreement, binding him or her as to the testamentary disposal of his or her estate, or one or more assets in that estate.198 The agreement may be made at arm’s length between the testator and a third party, or with a family member. For example, the law of mutual wills, arising most commonly as between husband and wife, presents an illustration of the law recognising a duty binding the survivor to testamentarily dispose of the estate inherited from the deceased in the manner earlier agreed between the parties. What gives rise to this duty is a pre-existing contract, albeit one enforceable in equity following the first party’s death.199 19.44 The legitimacy at general law of inter vivos contracts for the testamentary disposition of property necessarily raises the issue whether a contract of this kind can oust the court’s statutory jurisdiction to order provision out of the property the subject of the contract. There is no issue where the deceased has made an inter vivos disposition of the relevant property (subject to notional estate provisions in New South Wales).200 After all, the family provision legislation [page 676]

targets the deceased’s estate; that is, the property of which the deceased dies possessed. The question is whether a pre-existing contractual obligation relating to that property should serve to withdraw it from the deceased’s estate for the purposes of family provision. Although the subject of conflicting Privy Council authority — the board in Dillon v Public Trustee of New Zealand201 advised that no such withdrawal occurred as a matter of course, but some 40 years later in Schaefer v Schuhmann202 it advised to the contrary — the law is now settled in Australia due to the High Court’s ruling in Barns v Barns,203 which by a majority followed Dillon. In Dillon the testator, when a widower, contracted with his children to devise his farming lands on trust for the children’s benefit. He fulfilled that agreement by the terms of his will. But by the time of his death the testator had remarried, and his widow claimed under the relevant family provision legislation. The question was whether the land the subject of the specific devise was part of the estate out of which provision could be made for the widow. Their Lordships decided in the widow’s favour, ruling that the circumstance that the provisions in a will are in fulfilment of a contract inter vivos does not restrict the court’s power to redistribute a testator’s estate. Viscount Simon, who gave the advice of the board, reasoned that, were the law otherwise:204 … a young bachelor, who had agreed for a consideration to leave all his property by his last will to a relative, friend, or creditor, might later marry and leave his widow and children without any support in circumstances where the Act could not modify the distribution of the testamentary estate. The manifest purpose of the Family Protection Act, however, is to secure, on grounds of public policy, that a man who dies, leaving an estate which he distributes by will, shall not be permitted to leave widow and children inadequately provided for, if the court in its discretion thinks that the distribution of the estate should be altered in their favour, even though the testator wishes by his will to bestow benefits on others, and even though he has framed his will as he contracted to do.

19.45 Resort to the object of the family provision regime, coupled with its status as a statutory vehicle designed to alter the general law, led the High Court in Barns v Barns to endorse this approach. Barns involved mutual wills executed pursuant to a deed between husband and wife, and the issue was whether property the subject of the deed and wills came within the estate out of which provision could be ordered. Gleeson CJ, in holding that it did, opined that a construction of the Act ‘that permits a testator to nullify its operation by agreeing in advance to dispose of his or her estate in a certain

fashion tends to defeat the purpose of the legislation’.205 In so ruling, his Honour endorsed the dissent of Lord Simon in Schaefer v Schuhmann,206 who stated that the ‘promisee’s contractual or equitable rights fall to be considered along with the dependant’s statutory rights’. Lord Simon also made the compelling point that any pre-existing contractual restriction on the disposition of the relevant property by will does not, as a matter of law in any case, prevent that property becoming part of the deceased’s estate. It confers no proprietary interest in the other contracting party, only a personal right to enforce the contract, which must therefore yield to the terms of any applicable statute. Kirby J in Barns, who agreed with Gleeson CJ, developed this point as follows:207 The mutual promises of the deceased and the second respondent to make a specified testamentary disposition, however otherwise enforceable according to the unwritten law, were subject to the

[page 677] potential impact of the restriction on testamentary disposition for which the Act provided. Only this construction gives effect to the purpose of the Act according to its terms. That purpose could not be defeated by an agreement, in advance, to dispose of the estate in a way that would tend to defeat the achievement of the Act’s objectives. Any authority that would give primacy to the unwritten law over the statutory text is not part of the law of Australia.

The other judges in the majority in Barns, Gummow and Hayne JJ, endorsed the view that, as a promisee’s rights to the property in question are drawn through the will — the promise is, after all, one to dispose of the property by will — they are, in principle, subject to any statute affecting testamentary succession, of which the family provision regime was an example.208 19.46 The foregoing should not be understood to mean that a promisee’s contractual (or, in mutual wills, equitable) entitlement to enforce a promise is irrelevant to the exercise of the court’s jurisdiction to order provision out of the subject matter of the promise. As noted at the outset of this Part, courts are wary of interfering with a person’s freedom of testation, and will do so only where justified under statute.209 And viewed in tandem with the courts’ general reticence to undermine sanctity of contract, grounds certainly exist for

the courts to take into account legitimate contractual claims in determining the extent and form of provision.210 That the promisee has bargained for the contractual entitlement, and will have no claim for compensation should the property in question be directed (whether wholly or partly) instead to an applicant for provision, present further reasons not to ignore the contractual claim. But in each case, it cannot divert the court’s attention from its obligation under the relevant legislation to determine whether, in the circumstances, the deceased has left an applicant with adequate provision for his or her maintenance, advancement or support.

Impact on Availability of Pension or Other Social Security Payments 19.47 An award of provision could prejudice an applicant’s eligibility for means-tested social security. Whether, and the extent to which, this should factor into the discretionary stage of the court’s inquiry varies according to the circumstances, particularly how they impact on what a wise and just testator would have taken into account in making provision. It has been observed that, for a small estate over which competing claims lie, such a testator may take into account a claimant’s eligibility for a pension ‘as a means of deciding how those limited benefits as are available from the estate should be shared between claimants, and how those benefits might be structured’.211 As explained by Bryson J in Whitmont v Lloyd:212 [page 678] The protection of public funds from claims by indigent persons is not a purpose of family provision legislation but they are incidentally protected by the legislation, which was not enacted solely for the protection of private interests and serves public policy … In my opinion, the availability of … social [security] benefits is a circumstance which should be regarded, and particularly in small estates it may be appropriate to leave an applicant wholly or partly dependent on them or to mould the provision made so that their availability is preserved in whole or in part. The acceptance of benefits for which statute law provides is in every way legitimate, involves no social stigma and incurs no disapproval from the Court. It is not the Court’s task to be vigilant to throw burdens off public funds and on to private estates. Still it is true that the legislation has a public policy purpose and it is not appropriate that where there is wealth in an estate it should be

directed away from the less fortunate and successful of the eligible persons so as to enhance their claims to social benefits and maximise the resources of others; the Court should not disregard the interest of the public in public funds, which can receive incidental protection from the workings of this legislation. Where wealth is available it should be used to meet needs for maintenance, education and advancement of eligible persons. The significance of social benefits is related to the available resources. In my understanding this expresses the view on which this Court administers the legislation.

It follows from the foregoing that the impact of envisaged provision on social security entitlements has less relevance where the estate is sufficiently large. As Bryson J intimated, in those circumstances it may well be queried why the public purse ought to support the deceased’s dependants, when the deceased’s estate can do so.213 This explains judicial remarks that family provision legislation compels persons ‘to make provision for their dependants and not throw the maintenance of dependants upon the public purse’214 and that a testator should not be allowed to dispose of the family wealth ‘in ways of his own choosing and [leave] the family’s economic casualty to relative penury or dependence on social agencies’.215 In this event, it is no answer to a valid claim that the applicant is entitled to a publicly funded pension or benefit.216 In Crossman v Riedel,217 for instance, Gray J remarked that the fact that the applicant had a right to the aged pension was no substitute for the provision that should have been available, and saw no reason, for this purpose, to factor in the possible loss of the pension because the asset limit would be exceeded. 19.48 A further reason has been identified against permitting the moral obligation underscoring family provision legislation to be deflected by resort to the payment from the public purse to survivors of sums in satisfaction of the testator’s duties. It is that there is no guarantee that social security payments, in whatever forms, will continue at any particular level [page 679] on the same conditions, or be appropriately linked to rising costs. Provision of these benefits is, instead, subject to political vagaries.218 19.49 Although the trend of case authority is to the effect that, other than for small estates over which competing claims exist, means-tested social security payments should not generally be taken into account by a just and wise testator

when making provision, not all agree. On separate occasions in the 1990s Macready M queried the prevailing view, referring to the (then) phenomenon of higher unemployment, viewed against the backdrop of greater provision by Commonwealth legislation for unemployment, aged and invalid pensions than in the past.219 This led him to conclude that it was appropriate, generally speaking, to take into account a pension entitlement. Although this suggestion was not unheralded in the case law,220 and was reiterated by Macready M in 2005,221 it does not appear to have garnered substantial support. It must also be viewed in the context of more recent government policy directed at reducing reliance on social security, especially for pensions. 19.50 The position is, in any event, clearer where the pension entitlements of an applicant are not means-tested. In this instance an order for provision has no impact on the applicant’s social security entitlements. It follows that those entitlements factor into whether or not the applicant has been left without adequate provision. And this is especially so where the pension or payments in question have derived from the deceased. It has been held, to this end, that a repatriation pension paid to the widow in consequence of the testator’s death that is not means-tested should be regarded as part of the provision made by the testator.222

1.

2. 3. 4.

5. 6.

The family provision legislation in some Canadian jurisdictions likewise contains an equivalent list of relevant factors (Wills and Succession Act 2010 (Alta) s 93; Testators’ Family Maintenance Act 1989 (NS) s 5(1); Succession Law Reform Act 1990 (Ont) s 62(1) (containing the most detailed list of the Canadian provinces); Dependants’ Relief Act 1996 (Sask) s 8), as does the English legislation (see Inheritance (Provision for Family and Dependants) Act 1975 (UK) s 3). Namely before the amendments wrought by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic). Harris v Bennett (No 3) (2004) 8 VR 425; [2004] VSC 171; BC200402940 at [38] per Redlich J. ACT s 8(2), (3); NSW s 60(1); Vic s 91A(2) (before 1 January 2015, Vic s 91(4)(a)–(c)). The National Committee for Uniform Succession Laws has favoured the facultative approach ahead of the imperative one, reasoning that ‘[i]f the Court were required to take into account every matter in the list … a result may be that appeals will be sought on the basis that the Court failed to take a particular matter into account or failed to give equal consideration to each matter — irrespective of its relevance in the particular case’: QLRC, MP 28, pp 19–20. Blair v Blair (2004) 10 VR 69; [2004] VSCA 149; BC200405494 at [12] per Chernov JA, with whom Nettle JA and Hansen AJA concurred. Savic v Kim [2010] NSWSC 1401; BC201009735 at [55] per Hallen AsJ.

7. 8. 9. 10. 11. 12. 13. 14.

15.

16.

17.

18. 19.

Bolger v McDermott [2013] NSWSC 919; BC201310902 at [339] per Hallen J. ACT s 8(3)(k); NSW s 60(2)(p); Vic s 91A(2)(m) (before 1 January 2015, Vic s 91(4)(p)). ACT s 8(3)(a); NSW s 60(2)(m); NT s 8(3); Qld s 41(2)(c); SA s 7(3); Tas s 8(1); Vic s 91A(2)(k) (before 1 January 2015, Vic s 91(4)(o)); WA s 6(3). NT s 8(2). The ‘net value’ is ascertained by deducting from the gross value thereof all debts, testamentary and funeral expenses, and all other lawful liabilities to which the said estate is subject: Tas s 7(a). Tas s 7. ACT s 8(2), (3). Pursuant to s 15 of the Domestic Relationships Act 1994 (ACT), which empowers the court, on application by a party to a domestic relationship (as to which see 16.11), to make an order adjusting the interests in the property of either or both of the parties that seems just and equitable to it having regard to specified matters. This list largely follows the recommendation of the National Committee for Uniform Succession Laws: NSWLRC, Report 110, pp 22–8. It, however, omits the following recommended matter: ‘the date of the will (if any) of the deceased person and the circumstances in which the will was made’. The Committee saw the date of any will as relevant in order to take into account change of circumstances, especially if the will was made a long time ago. There is, in any case, judicial recognition of the relevance of this matter: see 17.78–17.80. As to the circumstances in which the will was made, the Committee remarked that ‘[a] will made in circumstances of great secrecy may be unassailable in probate law but those circumstances, if admissible in family provision proceedings, may illuminate an imbalance of fairness in the distribution of the estate or disclose a state of affairs in which the testator did not really have an opportunity to consider all the claims incumbent upon her or him’: ibid p 23. In Fulton v Fulton [2014] NSWSC 619; BC201404075 at [345] Hallen J remarked that the term ‘family’, not being defined in the legislation, is not a technical term with a specific meaning, but is a word in ordinary usage, which (at [346]) ‘depicts a legal relationship (of blood, by legal ceremony of marriage, by legal adoption) or a de facto relationship’, and may include persons where the link is ‘step-’ , or where the link is ‘in-law’ or by marriage, but (at [348]) differs in meaning to the phrase ‘member of the household’ (as to which see 16.21). Two strangers cannot, however, establish artificially a familial nexus for this purpose ‘by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that’, and nor can a man and woman in a platonic relationship ‘establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such, and even if they refer to each other as such and regard their association as tantamount to such’: Ross v Collins [1964] 1 All ER 861 at 866 per Russell LJ. From the words ‘or other’ may be inferred that the ‘other relationship’ is not a ‘family’ relationship: Nicholas v Nicholas [2013] NSWSC 697; BC201302870 at [159] per Hallen J. His Honour (at [160]) agreed with the remarks of Pagone J in Thompson v MacDonald [2013] VSC 150; BC201301709 at [24] that ‘the nature of the “relationship” to be enquired into is not confined … but is broad enough to encompass past relations as well as any continuing ties from past circumstances, events and dealings’. This includes any property that is, or could be, designated as ‘notional estate’ of the deceased: see 20.64–20.75. This exclusion reflected the view of the National Committee for Uniform Succession Laws that a carer’s pension should not be considered valuable consideration for the applicant’s contribution to the deceased’s welfare since it is ‘more compensation for income that the carer might otherwise have

20.

21. 22. 23.

24. 25. 26. 27.

28.

29.

earned than it is remuneration’: QLRC, MP 28, p 23. The National Committee for Uniform Succession Laws recommended inclusion of this matter because it ‘considered it important to enable the Court to take into account the deceased person’s and the applicant’s membership of a particular community and the customary practices and customary laws which help define that community in determining whether the deceased person owed the applicant a [relevant] responsibility’: QLRC, MP 28, pp 22–3. It did not, however, consider it appropriate to specify what customary practices and customary laws should be taken into account in determining a person’s eligibility to apply for provision, as customary practices and laws vary within and between communities, and not every member of a community will feel bound by its customary practices and laws: p 22. NSW 1982 s 9(3). [2010] NSWSC 1431; BC201009434 at [34]. Rein J listed the following ‘circumstances’ and ‘matters’ (Goldberg v Landerer [2010] NSWSC 1431; BC201009434 at [34]): (1) the applicant’s contributions (if any) to the property of the deceased, either in direct financial assistance or in assistance that has enabled the deceased to amass the property which he or she has acquired; (2) the applicant’s non-financial contributions to the welfare of the deceased; (3) the applicant’s present financial position; (4) the applicant’s earning capacity and needs in the future; (5) the applicant’s age, current health and prognosis; (6) the totality of the relationship between the applicant and the deceased; (7) the character and conduct of the applicant, whether there has been any disentitling conduct on the part of the applicant, and the ‘nature and quality of the relationship’; (8) the size and nature of the estate; (9) the relationship between the deceased and the other persons who have legitimate claims upon the deceased’s bounty, particularly the residuary beneficiaries; (10) whether the deceased promised the applicant (or induced an expectation) that he would leave property to the applicant in his or her will; and (11) whether the applicant received substantial assistance from the deceased during the deceased’s life, that is, the level of comfort and benefit that the applicant received from the deceased whilst the latter was alive (the ‘station in life’). Vic s 91A(1). As to eligible persons in Victoria, see 16.52. Vic s 91A(2)(a)–(m) (before 1 January 2015, Vic s 91(4)(e)–(p), which were expressed in imperative terms, and phrased by reference to the ‘applicant’ as opposed to the ‘eligible person’; it also omitted the penultimate dot point). As to the 1998 amendments to the Victorian legislation, see 16.47. Richard v AXA Trustees Ltd [2000] VSC 341; BC200005290 at [7] per Eames J; Valbe v Irlicht [2001] VSC 53; BC200100909 at [81] per Gillard J; Allan v Allan [2001] VSC 242; BC200104192 at [60]– [69] per McDonald J; Lee v Hearn (2002) 7 VR 595; [2002] VSC 208; BC200202924 at [42] per Warren J (aff’d Lee v Hearn (2005) 11 VR 270; [2005] VSCA 127; BC200503355); Schmidt v Watkins [2002] VSC 273; BC200204063 at [12] per Harper J; MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318; BC200305001 at [38] per Dodds-Streeton J; Coombes v Ward [2004] VSCA 51; BC200401682 at [7] per Winneke P. ACT s 8(3)(e) (‘the income, property and financial resources of the applicant and the deceased’); NSW s 60(2)(c) (the nature and extent of the deceased’s estate (including any property that is, or could be, designated as ‘notional estate’: see 20.64–20.75) of the deceased and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered); Vic s 91A(2)(c) (before 1 January 2015, Vic s 91(4)(g)) (‘the size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject’). Pontifical Society for the Propagation of the Faith v Scales (1961) 107 CLR 9 at 19; BC6200110 per Dixon CJ; Williams v Aucutt [2000] 2 NZLR 479; [2000] NZCA 289 at [41] per Richardson P (‘the

30. 31.

32. 33. 34. 35.

36. 37. 38. 39. 40. 41. 42.

43. 44.

45. 46.

assessment is not simply of the absolute size of the estate but … is also relative having regard to the various claims on it’). Anasson v Phillips (SC(NSW), Young J, 4 March 1988, unreported) BC8802473 at 20. Anasson v Phillips (SC(NSW), Young J, 4 March 1988, unreported) BC8802473 at 20–1. See, for example, Brennan v Mansfield [2013] SASC 83; BC201309986 (against the backdrop of a 26-year same-sex relationship and an estate of some $3.5m, Stanley J found that the deceased’s bequest to his partner (the applicant) of one property and a sum of $100,000 was inadequate to sustain the lifestyle to which the applicant had, in his relationship with the deceased, become accustomed; that the applicant was already affluent (with assets between $1.56m and $2.11m, due to the deceased’s generosity over the course of the relationship) did not alter his Honour’s conclusion, in large part because there were no competing claimants: at [64]–[68]). Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [114] per Callinan and Heydon JJ. Blore v Lang (1960) 104 CLR 124 at 135; BC6000550 per Fullagar and Menzies JJ (dissenting). Re Harris [1936] SASR 497 at 501 per Cleland J, approved by Williams and Fullagar JJ in Worladge v Doddridge (1957) 97 CLR 1 at 12; BC5700260. See, for example, Gigliotti v Gigliotti [2002] VSC 279; BC200203987 at [13] per Byrne J (‘The wisdom of generations of judges exercising this jurisdiction has dictated that a widow requires not only a roof over her head, but also what is called a “nest egg” to give her some comfort in facing the unforeseeable vicissitudes which lie ahead’); Penn v Richards [2002] VSC 378; BC200205380 at [33] per Ashley J; Litchfield v Litchfield [2010] VSC 466; BC201007667 at [92] per Hargrave J. Klemke v Lustig [2010] VSC 502; BC201008404 at [34] per Hargrave J. Anasson v Phillips (SC(NSW), Young J, 4 March 1988, unreported) BC8802473 at 20. Lumb v McMillan [2007] NSWSC 386; BC200702886 at [26] per McLaughlin AsJ. [2015] WASC 71; BC201500874. Mead v Lemon [2015] WASC 71; BC201500874 at [62]. Mead v Lemon [2015] WASC 71; BC201500874 at [72]. See, for example, Darveniza v Darveniza [2014] QSC 37; BC201401632 (where, in leaving an estate worth some $27m but no provision for a son (S) of his first marriage, the testator was found not to have fulfilled his moral obligations to S; what, inter alia, influenced Martin J to award S $3m from the estate was that, although S’s net worth was about $2.5m, he had for many years worked long and hard for the testator and contributed to the growth of the testator’s business, coupled with the testator’s promises that S would inherit, the testator’s misconceived reasons for disinheriting S, and the fact that family provision claims by other offspring had been settled for between $2.85m and $3.2m: at [64]). [2010] NSWSC 1401; BC201009735. Savic v Kim [2010] NSWSC 1401; BC201009735 at [165]. See also Edgar v Public Trustee for the Northern Territory [2011] NTSC 21; BC201101283 (where Kelly J conceded that, had the deceased been a wealthy man, it may have been proper for some additional provision to have been made for the son to make his life more comfortable in the circumstances in which he finds himself, but as the deceased was not a wealthy man, and the son was comfortably off, there was no justification to order provision: at [55]). NT s 8(3); SA s 7(3); Qld s 41(2)(c); Tas s 8(1); WA s 6(3). White v Muldoon [2006] VSC 204; BC200604085 at [53] per Hollingworth J (referring to an earlier Victorian provision phrased in similar terms to the current Northern Territory, South Australian, Queensland, Tasmanian and Western Australian legislation).

47. 48.

49.

50. 51.

52. 53.

54. 55.

56. 57.

58. 59. 60.

ACT s 8(3)(a); NSW s 60(2)(m); Vic s 91A(2)(k) (before 1 January 2015, Vic s 91(4)(o)). See, for example, Walker v Walker [2005] NSWSC 1024; BC200507746 at [44] per McLaughlin AsJ (‘Where, as here, the Plaintiff chooses to maintain a lifestyle, as a farmer, which results to him in little financial return, in circumstances where, by giving up the farm he could achieve a greater income from investments without the necessity for conducting either the cartage business or the farming business, I am not satisfied that the Plaintiff has demonstrated that he has been left without adequate provision for his proper maintenance’); Daniels v Hall [2014] WASC 152; BC201403192 (where E M Heenan J dismissed an application for provision by the deceased’s son, to whom the deceased had transferred a farm inter vivos, because the applicant’s poor financial condition was due to his insistence upon operating an unviable farming operation that had suffered due to his poor farming management and practices). Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [116] per Callinan and Heydon JJ. As to moral duty or moral claims providing the foundation for the family provision jurisdiction, see 17.60–17.64. See, for example, Frizelle v Old [2009] NSWSC 1259; BC200910475 at [124] per Barrett J. The same can be said of the frequent judicial remarks that as an order for provision is not a reward for services and good conduct (see 15.18–15.21) in the face of case law that takes into account, in both the jurisdictional and discretionary stages of the court’s inquiry, the care and support an applicant has provided for the deceased: see, for example, Unger v Sanchez [2009] VSC 541; BC200910756, discussed at 16.49. Collett v Knox [2010] QSC 132; BC201003226 at [145] per McMeekin J. See, for example, Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 155–6; BC7900037 per Gibbs J, with whom Mason, Murphy and Aickin JJ agreed (who remarked that, although the applicant’s conduct ‘fell short of what might have been expected of a dutiful son’ and was ‘worthy of censure’, by virtue of his need, on balance his conduct, ‘although not meritorious’, did not disentitle him to further provision); Dodge v Blissenden [2009] TASSC 116; BC200911702 (where, in the case of a lengthy estrangement between the deceased and his son, to which both were found to have contributed, Blow J remarked that, had he been satisfied that the applicant were very needy, the estrangement may not have extinguished the applicant’s moral claim, but as his Honour was not satisfied that the applicant was needy, ‘the estrangement [i]s a factor that weighs significantly against the applicant’: at [28]). See 19.28–19.31. Ford v Simes [2009] NSWCA 351; BC200909980 at [71] per Bergin CJ in Eq, with whom Tobias JA and Handley AJA concurred. Cf Churton v Christian (1988) 13 NSWLR 241 at 252–3; BC8803144 per Priestley JA (‘In a case where a parent had a sound reason for disliking either a child or a stepchild, that might, depending on the precise circumstances, justify the parent in not making provision for that child or step-child, and the court also in subsequently refusing to make any provision; but the child could not be excluded from applying for the court’s consideration of the case’). See 19.34–19.38. Hackett v Public Trustee for the Australian Capital Territory (1997) 138 FLR 323 at 337; BC9701642 per Higgins J (‘It is not the testator’s view of the character or conduct of the applicant which is relevant’). See, for example, Hackett v Public Trustee for the Australian Capital Territory (1997) 138 FLR 323 at 337; BC9701642, discussed at 19.25. See 19.37, 19.38. See 17.78–17.80.

61. 62.

63. 64. 65. 66.

67.

68. 69. 70. 71. 72.

73.

74.

75.

[1967] VR 91 at 95. Cf Goldberg v Landerer [2010] NSWSC 1431; BC201009434 at [38] per Rein J (surmising that ‘[r]enunciation of a religion or adoption of a political philosophy antithetical to a testator’s beliefs may be relevant conduct which a testator is entitled to take into account in reducing his or her generosity towards a claimant’). Stern v Sekers [2010] NSWSC 59; BC201000448 at [134] per Ward J. Collicoat v McMillan [1999] 3 VR 803 at 818; BC9502481. See 19.24, 19.25. In the Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 at 321 per Jordan CJ; McKenzie v Topp [2004] VSC 90; BC200401441 at [39] per Nettle J. See, for example, Hastings v Hastings [2008] NSWSC 1310; BC200811011, discussed at 19.24. Panozzo v Worland [2009] VSC 206; BC200905484 at [68] per Forrest J (envisaging that it could only be in ‘a rare case’ that the conduct of an applicant following the testator’s death would be relevant to the determination of an application for family provision, but without giving any illustration of what may be a rare case). See 19.3–19.5. [1966] VR 404 at 413. See also Costello v Martens [2009] NSWSC 1151; BC200909756 at [81] per McLaughlin AsJ. Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308; BC201207749 at [40] per Basten JA. Lathwell v Lathwell [2008] WASCA 256; BC200810973 at [33] per Pullin JA. [2006] WASC 1; BC200600069 at [26]. See also Keep v Bourke [2012] NSWCA 64; BC201202032 (38-year estrangement did not preclude an order for provision where the deceased was its instigator). Cf Walker v Walker (SC(NSW), Young J, 17 May 1996, unreported) BC9602381. See, for example, Pellissier v Melville [2006] NTSC 93; BC200610239 (23-year estrangement between father and daughter, caused by factors including his alcoholism and difficult personality, his support for her ex-husband, the daughter’s belief that the testator did not show a sufficient interest in her, the daughter’s relationship with the testator’s various partners after he separated from her mother; and the testator’s failure to contact the daughter once the estrangement occurred: at [58] per Southwood J); Valentini v Valentini [2014] VSC 91; BC201402040 (where the deceased’s children were the victims of the deceased’s failure in his parental duty, and so periods of estrangement did not operate to weaken the moral force of the childrens’ claims: at [40]–[53] per Vickery J); Parker v Australian Executor Trustees Ltd [2016] SASC 64; BC201604528 (where Lovell J found that the testator’s estrangement from his children stemmed from the behaviour of the testator, who ‘did little for them during his life and less on his death’: at [101]); Butler v Tiburzi [2016] SASC 108; BC201606359 (where Lovell J made a family provision order, equating to one-half of the testator’s estate, in favour of his daughter, whose estrangement from the testator was the product of his ‘selfish and controlling’ nature: at [196]). See, for example, Williamson v Williamson [2011] NSWSC 228; BC201102159 (where Hallen AsJ remarked that, if the applicant’s allegations of ongoing physical, sexual and verbal abuse against her father are true, ‘they certainly provide ample justification for her conduct and a sufficient reason for her not making any effort to contact the deceased during the period that she did’: at [120]). Browne v Macaulay [1999] WASC 208; BC9907204 at [19] per Murray J (‘an estrangement, particularly in later years, of the plaintiff from the deceased may well weaken substantially the moral force of the asserted claim if it does not destroy the claim entirely’); Palmer v Dolman [2005] NSWCA 361; BC200510754 at [118] per Ipp JA, with whom Tobias and Basten JJA agreed (‘I take into account the consideration that an estrangement between father and child may well reduce the

76.

77. 78. 79. 80. 81. 82.

83.

84.

moral claim that the child might have to maintenance, support or advancement in life’); Wheatley v Wheatley [2006] NSWCA 262; BC200607699 at [37] per Bryson JA, with whom Santow and McColl JJA agreed (‘The poor state of the relationship between [the applicant] and the testatrix, illustrated by the absence of visits during the last 13 years of her life, operates to restrain amplitude in the provision to be ordered’); Foley v Ellis [2008] NSWCA 288; BC200809815 at [14] per Basten JA (‘Nor is the rupture in the familial ties between the applicant and her mother … to be ignored. These factors militate against an order erring on the side of generosity in assessing the applicant’s needs for maintenance and advancement in life’). (SC(NSW), McLelland J, 16 October 1992, unreported) BC9201547 at 9. See also Re Young (deceased) [1965] NZLR 294 at 301 per Hutchison J (in the face of a lengthy estrangement between father and son, ‘the loosening of the bonds between the father and the son is a matter properly to be taken into account as affecting the moral duty of the testator’); Rowley v Bouwmeester [2005] TASSC 34; BC200502828 at [40] per Blow J (‘the lack of contact over many years, and the hostility demonstrated by the applicant in her correspondence during her father’s final illness are factors that weigh substantially against her, and operate to reduce the strength of her moral claim substantially’); Costello v Martens [2009] NSWSC 1151; BC200909756 at [85] per McLaughlin AsJ (who held that the quantum of provision ‘must include a recognition of the lack of contact between [the applicant] and her father, being an almost total estrangement during the entirety of [the applicant’s] adult life’). [2009] NSWCA 351; BC200909980. [2005] NSWSC 751 at [60] per McLaughlin AsJ. [2011] SASC 20; BC201100623. Temple v Cowell [2011] SASC 20; BC201100623 at [47]. [2009] TASSC 116; BC200911702 at [28]. Alabakis v Alabakis [2012] VSC 437; BC201207235 at [36] per Macaulay J (‘the longer that estrangement extends into adulthood when the teenager gains maturity, the more the responsibility for such estrangement becomes shared’). Cf Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308; BC201207749 at [40] per Basten JA (opining that the negative consequences of the ‘natural’ process of separation of child from parent, ‘which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension’, should ‘at least when kept within reasonable bounds … arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous’). See, for example, Stern v Sekers [2010] NSWSC 59; BC201000448 (where Ward J found that ‘the conduct of [the applicant] towards her father (while it smacks of disinterest) does not seem to me to go so far as to evidence callousness or hostility’ and ‘to the extent the contact between father and daughter was limited and somewhat perfunctory … it may be fair to say that this was so on both sides of the relationship’, so that ‘though there was not a very close relationship between the two for a number of years, the situation was not such as to absolve the deceased from any moral obligation to provide for his daughter on his death’: at [139], [140]); Collett v Knox [2010] QSC 132; BC201003226 (where McMeekin J found that the applicant’s estrangement from her mother ‘was due to the conduct of both but principally of the deceased and was maintained by both, almost in equal degree’ (at [148]), and that the circumstances of the estrangement were not, given the applicant’s strong case for relief, of a character as to forfeit or abandon her moral claims on the testator). (SC(NSW), Young J, 17 May 1996, unreported) BC9602381 at 30. See also Foley v Ellis [2008] NSWCA 288; BC200809815 at [102] per Sackville AJA (‘Care should be taken, however, not to

oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of the raw emotions experienced at the time. The “wise and just” testator or testatrix … must be taken to understand this’); Frizelle v Old [2009] NSWSC 1259; BC200910475 at [120], [121] per Barrett J (‘there needs to be a full investigation into all the facts and circumstances of the relationship’, and ‘[i]n undertaking this investigation, the court is not concerned with apportioning blame for the absence of a close or fulfilling relationship’). 85. Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20; BC6200110 per Dixon CJ. 86. (2012) 81 NSWLR 656; [2012] NSWCA 308; BC201207749. 87. Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308; BC201207749 at [56], [57]. 88. See 18.34, 18.35. 89. Palmer v Dolman [2005] NSWCA 361; BC200510754 at [110] per Ipp JA, with whom Tobias and Basten JJA agreed; Foley v Ellis [2008] NSWCA 288; BC200809815 at [101] per Sackville AJA. 90. See, for example, Haskakis v Hatzopoulos [2015] NSWSC 1408; BC201509443 (where White J remarked that while the hostile and abusive correspondence from the applicant daughter did not disentitle her to a claim for further provision from her mother’s estate, it was a factor militating against amplitude in an order for provision: at [87]). 91. Haskakis v Hatzopoulos [2015] NSWSC 1408; BC201509443 at [76] per White J. 92. Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 540. 93. McKenzie v Topp [2004] VSC 90; BC200401441 at [45] per Nettle J. See, for example, Wentworth v Wentworth (SC(NSW), Bryson J, 14 June 1991, unreported) BC9101896 at 126. 94. (SC(NSW), Bryson J, 14 June 1991, unreported) BC9101896 at 125–6. This passage was not commented on adversely by the Court of Appeal, which varied the trial judge’s orders: Wentworth v Wentworth (CA(NSW), Samuels AP, Priestley and Handley JJA, 3 March 1992, unreported) BC9202033. 95. (2014) 13 ASTLR 294; [2014] NSWSC 1015; BC201405813. 96. Burke v Burke (2014) 13 ASTLR 294; [2014] NSWSC 1015; BC201405813 at [56]. 97. Burke v Burke (2014) 13 ASTLR 294; [2014] NSWSC 1015; BC201405813 at [57]. 98. Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195; BC201506314 at [120]. See also at [105] per Ward JA. 99. See, for example, Wright v Wright [2015] NSWSC 1333; BC201508835 (where adopted son was denied provision from his father’s estate in the face of a lengthy estrangement, punctuated by threats to kill the father and open hostility to the family; Rein J viewed the testator’s wish to exclude his son as ‘a very natural response to the son’s behaviour particularly having regard to his threats and menacing conduct exhibited before the testator’s death and which behaviour has continued in relation to the testator’s family after his death’, which the court should uphold even though the estate could afford provision and the son was in need: at [52]); Christie v Christie [2016] WASC 45; BC201600761 (involving an applicant’s frequent physical violence and abuse towards his mother, followed by no real attempt to reconnect with her after moving out of home in 1987; Sanderson M noted that while the applicant was in need, that ‘appears to have been occasioned by his own actions’ and was certainly ‘not something which was contributed to by the deceased’, and so denied provision: at [35]). 100. Christie v Christie [2016] WASC 45; BC201600761 at [37] per Sanderson M. 101. [2004] NSWSC 569; BC200404021.

102. 103. 104. 105. 106. 107. 108.

109. 110. 111. 112. 113. 114. 115. 116. 117. 118. 119. 120. 121. 122. 123. 124.

125.

126. 127.

Murphy v Stewart [2004] NSWSC 569; BC200404021 at [44]. (2009) 2 ASTLR 201; [2009] NSWSC 378; BC200904234 at [126]. (1995) 37 NSWLR 703; BC9505254. Wentworth v Wentworth (1995) 37 NSWLR 703 at 746; BC9505254. See 7.47–7.67. The strictness of this rule has been statutorily mollified by limited judicial discretion in the Australian Capital Territory and New South Wales: see 7.68–7.70. Re Royse (deceased) [1985] Ch 22 at 27 per Ackner LJ. Re Royse (deceased) [1985] Ch 22 at 28 per Ackner LJ. Yet this preceded entry into force of the Forfeiture Act 1982 (UK), under which, inter alia, the forfeiture rule is not taken to preclude any person from making any application for provision or the court making any order on the application: s 3. Troja v Troja (1994) 35 NSWLR 182 at 186 per McLaughlin M. [2008] NSWSC 1310; BC200811011. Hastings v Hastings [2008] NSWSC 1310; BC200811011 at [38]. Hastings v Hastings [2010] NSWCA 197; BC201005690. Hastings v Hastings [2008] NSWSC 1310; BC200811011 at [43]. Luke 15:11–32. (SC(NSW), Young J, 17 February 1987, unreported) BC8701583. As to the impact of estrangement on claims for provision, see 19.15–19.21. Hoadley v Hoadley (SC(NSW), Young J, 17 February 1987, unreported) BC8701583 at 11. (1997) 138 FLR 323 at 339; BC9701642. Hackett v Public Trustee for the Australian Capital Territory (1997) 138 FLR 323 at 339; BC9701642. [2005] VSC 354; BC200506608 at [145]. Herszlikowicz v Czarny [2005] VSC 354; BC200506608 at [146]. See 19.24, 19.25. (2010) 5 ASTLR 116; [2010] NSWCA 359; BC201009847 at [96]. See, for example, Re Fletcher (deceased) [1921] NZLR 649 (provision ordered for a plaintiff with a chronic alcohol problem); Grey v Harrison [1997] 2 VR 359; BC9606012 (where an applicant whose career had been ruined by alcoholism was given a substantial award of capital from his father’s estate, with no conditions attached, in circumstances where the court accepted that he had recovered from his alcoholism); Bienke v Bienke [2002] NSWSC 804; BC200205297. Cf Ray v Moncrieff [1917] NZLR 234 (where Chapman J rejected the argument that the applicant, who was a drunkard, should for the purposes of an application for provision be treated as a man suffering from a chronic disorder, such as being maimed or insane). See, for example, Green v Perpetual Trustee Co Ltd (SC(NSW), Hodgson J, 10 July 1985, unreported) BC8500710 (order made in favour of a plaintiff who was a heroin user); O’Donnell v Gillespie [2010] QSC 22; BC201000324 at [56] per McMurdo J (who noted that the applicant’s involvement with cannabis did not affect the value of the estate or detract from his substantial contribution to the maintenance and improvement of the main assets of the estate; the drug use, though ‘discreditable’, did not warrant refusal of an order in the applicant’s favour if an order was otherwise appropriate); Christie v Edward [2012] WASC 265; BC201205395 (order for provision made in favour of (allegedly) reformed heroin addict, albeit reduced to take account of the applicant’s poor behaviour towards the deceased; noted R Reynolds, ‘Hazards of Will Making’ (April 2013) 40 Brief 28). See, for example, McLean v Public Trustee [2001] NSWSC 970; BC200106890; Bienke v Bienke [2002] NSWSC 804; BC200205297. [2010] NSWSC 845; BC201005445.

128. This, inter alia, distinguished the case from Hastings v Hastings [2010] NSWCA 197; BC201005690, discussed at 19.24. 129. West v France [2010] NSWSC 845; BC201005445 at [76]. 130. See generally 20.20–20.25. 131. See 19.3–19.5. 132. See 15.22–15.24. 133. As to estrangement, see 19.15–19.21. 134. See 18.29, 18.30. 135. See, for example, Revell v Revell [2016] NSWSC 947; BC201605533 (where, out of a $10m estate, the deceased bequeathed his son (the applicant) $1.5m, leaving the bulk of the remainder to his third wife; the evidence revealed that the deceased had been generous to the applicant in the course of the applicant’s life, leading Pembroke J to rule that the deceased ‘had discharged his duty during his lifetime’ and ‘had long since ceased to be responsible for his son’s welfare’, and had done ‘more than enough’ by leaving his son a legacy of $1.5 million: at [31]). 136. ACT s 8(3)(k); NSW s 60(2)(p); Vic s 91A(2)(m) (before 1 January 2015, Vic s 91(4)(p)). 137. See Law Reform (Testamentary Promises) Act 1949 (NZ), as to which see 1.38. 138. See generally Dal Pont, Ch 10; Meagher, Gummow and Lehane, Ch 17. 139. Forsyth v Sinclair [2010] VSCA 147; BC201004190 at [98] per Neave JA, with whom Redlich JA and Habersberger AJA concurred. 140. Bovaird v Frost (2009) 3 ASTLR 155; [2009] NSWSC 337; BC200903506 at [102] per Brereton J. 141. Re Anderson (deceased) (1975) 11 SASR 276 at 284 per Zelling J; Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 148; BC7900037 per Gibbs J; Whitehead v State Trustees Ltd (2011) 4 ASTLR 528; [2011] VSC 424; BC201106685 at [338] per Bell J (aff’d State Trustees Ltd v Whitehead [2012] VSCA 274; BC201208831). 142. As to the ‘moral duty’ concept, see 17.60–17.64. 143. Vukic v Grbin [2006] NSWSC 41; BC200600468 at [38] per Brereton J (repeating this observation, with the concurrence of Basten JA and Handley AJA, in Alexander v Jansson [2010] NSWCA 176; BC201005167 at [18]); Frey v Frey (2009) 3 ASTLR 470; [2009] QSC 43; BC200901355 at [191] per A Lyons J. 144. See G E Dal Pont, ‘The Varying Shades of “Unconscionable” Conduct — Same Term, Different Meaning’ (2000) 19 Aust Bar Rev 135 at 157–62. 145. Pereira v Patrick [2001] WASC 342; BC200108091 at [68] per Hasluck J. 146. See, for example, Bovaird v Frost (2009) 3 ASTLR 155; [2009] NSWSC 337; BC200903506 (where Brereton J found that the applicant was dependent on her deceased brother because she had arranged her affairs on the basis of his promise to support her for the rest of her life). 147. Flocas v Carlson [2015] VSC 221; BC201504703 at [295] per McMillan J. 148. As to the testator’s moral duty, see 17.60–17.64. 149. Salmon v Osmond [2015] NSWCA 42; BC201501790 at [77] per Beazley P; Baird v Harris [2015] NSWSC 803; BC201505572 at [210] per Hallen J. 150. ACT s 22(1); NT s 22(1). 151. ACT s 22(2); NT s 22(2). 152. NSW s 60(2)(j). 153. As from 16 January 2013, upon the commencement date of the Inheritance (Family and Dependants Provision) Amendment Act 2011 (WA). 154. For this purpose, ‘statement’ includes any representation of fact whether or not in writing: NSW s 100(1); WA s 21A(1). 155. NSW s 100(2); WA s 21A(2). The section is equivalent to the former NSW 1982 s 32. As to the

156. 157. 158. 159.

160. 161. 162.

163. 164. 165. 166. 167. 168. 169. 170. 171. 172. 173. 174.

175. 176.

177.

position prior to the 1982 Act, see Tausz v Elton [1974] 2 NSWLR 163 at 168–72 per Mahoney J. Including oral evidence, evidence by affidavit and evidence taken before a commissioner or other person authorised to receive evidence for the purpose of the proceedings: NSW s 100(3); WA s 21A(3). NSW s 100(3); WA s 21A(3). NSW s 100(4); WA s 21A(4). NSW s 100(5); WA s 21A(5). The legislation adds that, where a person proposes to tender, or tenders, evidence of a statement contained in a document, the court may require that any other document relating to the statement be produced and, in default, may reject the evidence or, if it has been received, exclude it: NSW s 100(6); WA s 21A(6). NSW s 100(7); WA s 21A(7). NSW s 100(12); WA s 21A(12). Tas s 8A(1). Where an application relates to a will made under Pt 3 of the Wills Act 2008 (Tas) by the Guardianship and Administration Board (the ‘Board’) or the court (as to which see Chapter 3), the court may have regard to the records of the Board or court relating to the person for whom the will was made and the reasons given by the Board or court for making an order authorising the making or alteration of a will in specific terms: Tas s 8A(1A). Tas s 8A(2). Vic s 91A(1) (as from 1 January 2015, pursuant to the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic)). Vic s 94(c). Evidence Act 1977 (Qld) s 92; Evidence Act 1929 (SA) s 34C; Evidence Act 1906 (WA) s 79C. de Groot and Nickel, p 347. QLRC, Report 58, p 74. Evidence Act 2011 (ACT) s 59; Evidence Act 1995 (NSW) s 59; Evidence (National Uniform Legislation) Act 2011 (NT) s 59; Evidence Act 2001 (Tas) s 59; Evidence Act 2008 (Vic) s 59. Evidence Act 2011 (ACT) s 60; Evidence Act 1995 (NSW) s 60; Evidence (National Uniform Legislation) Act 2011 (NT) s 60; Evidence Act 2001 (Tas) s 60; Evidence Act 2008 (Vic) s 60. Evidence Act 2011 (ACT) s 63; Evidence Act 1995 (NSW) s 63; Evidence (National Uniform Legislation) Act 2011 (NT) s 63; Evidence Act 2001 (Tas) s 63; Evidence Act 2008 (Vic) s 63. Which makes it odd that the New South Wales (and, as from 16 January 2013) Western Australian provisions state that the exceptions to the rules against hearsay they contain are in addition to the exceptions to the hearsay rule set out in the evidence legislation: NSW s 100(13); WA s 21A(13). QLRC, Report 58, p 75. de Angelis v de Angelis [2003] VSC 432; BC200308497 at [192] per Dodds-Streeton J (speaking in terms of ‘appropriate weight in all the circumstances’); Brimelow v Alampi [2016] VSC 135; BC201602346 at [15] per McMillan J (adding that ‘[r]easons can be shown to be incorrect or misconceived, which may enhance or boost the strength or defence of a claim’). de Angelis v de Angelis [2003] VSC 432; BC200308497 at [192] per Dodds-Streeton J. ACT s 22(3); NSW s 100(8) (which adds that the circumstances include ‘the recency or otherwise, at the time when the deceased person made the statement, of any relevant matter dealt with in the statement’ and ‘the presence or absence of any incentive for the deceased person to conceal or misrepresent any relevant matter in the statement’); NT s 22(3). de Angelis v de Angelis [2003] VSC 432; BC200308497 at [191] per Dodds-Streeton J. See also SlackSmith v Slack-Smith [2010] NSWSC 625; BC201004149 at [27] per Ball J (‘while the court will consider explanations given by the deceased in the will or elsewhere for excluding a particular person as a beneficiary, those explanations do not relieve the court from engaging in the enquiry

required by the Act’). 178. Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 138; BC7900037 per Barwick CJ (‘When attempting to decide what a particular testator ought as a just and wise father to have done, those reasons which that testator actually entertained for his decision cannot, it seems to me, justly be ignored’). See also Re Goodwin (deceased) [1969] 1 Ch 283 at 291 per Megarry J (‘[the testator’s] views seem to me to carry considerable weight, especially as the will bears signs of a husband and father who was attempting to dispose justly and reasonably of what he had among his widow and children’). 179. Clucas v Clucas Estate (1999) 25 ETR (2d) 175 at [12] per Satanove J (SC(BC)) (referring to the need for ‘valid and rational’ reasons justifying disinheritance, which must be ‘based on true facts’ and ‘logically connected to the act of disinheritance’). 180. Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 138; BC7900037 per Barwick CJ; Lathwell v Lathwell [2008] WASCA 256; BC200810973 at [34] per Pullin JA, with whom Buss JA and Le Miere AJA concurred (where the deceased’s statement that he had made adequate financial provision for his daughters was not borne out by the evidence); Jones v Public Trustee [2010] NSWSC 350; BC201002745 at [62] per McLaughlin AsJ (noting that the court is not required to accept unquestioningly the truth or accuracy of the testator’s reasons, as ‘[t]estators, like living witnesses, can make untrue or inaccurate statements, either deliberately or unintentionally’); Salmon v Osmond [2015] NSWCA 42; BC201501790 at [72] per Beazley P (‘The weight that is given will depend, inter alia, upon whether it is apparent from the evidence that the testator’s wishes and testamentary intentions are soundly based and not, for example, attributable to irascibility, mere dislike, or based on lack of information, or wrong information’). 181. Hackett v Public Trustee for the Australian Capital Territory (1997) 138 FLR 323 at 338; BC9701642 per Higgins J. 182. Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54; BC200901634 at [61] per Basten JA, with whom Allsop P and Ipp JA concurred. See also Re Green (deceased) [1951] NZLR 135 at 141 per Gresson J (CA) (‘the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting the claim’), a passage approved by the majority of the High Court in Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 135 at 152; BC7900037. 183. Cf NSW s 100(9) (which states that evidence of a statement of a deceased person that is admitted under s 100 is admissible for the purpose of destroying or supporting the credibility of the deceased person). 184. See, for example, Leyden v McVeigh [2009] VSC 164; BC200903344 at [37] per Kaye J (who found that the reasons given by the testator, both in his will and to his solicitor, for excluding the plaintiff from his estate, were misconceived and unfounded, ruling that ‘[t]he fact that the testator exercised his testamentary discretion on such a false foundation reinforces my conclusion that he was not acting as a wise and just testator, mindful of his responsibilities to his son, who had remained loyal to him throughout his adult life’). 185. Langford v Cleary (No 2) (1998) 8 Tas R 52 at 57; BC9801597 per Slicer J (remarking that ‘[i]n cases where the parent had disinherited a child by reason of prejudice (eg, marriage to a person of a different religion or race), the law ought pay regard to a notion of “just parent”’). 186. See, for example, de Angelis v de Angelis [2003] VSC 432; BC200308497 (where the deceased made a solemn statement recording his perception that the applicant had squandered assistance, showed disrespect and caused him pain, Dodds-Streeton J remarked (at [194]) that, whilst there was no reason to doubt that the applicant’s conduct caused the deceased pain and may have been wanting in respect, she was unable to conclude that the applicant was solely responsible for the conflict in

187.

188.

189. 190. 191. 192.

193.

194. 195. 196.

197.

the relationship, adding that ‘[m]oreover, faulty conduct will not preclude the making of further provision where other relevant factors establish a moral duty to make it’); Wheatley v Wheatley [2006] NSWCA 262; BC200607699. See, for example, White v Hanover [2010] VSC 577; BC201009590 (involving de facto partners in a happy and loving relationship for nearly 5 years, where the deceased’s estate was large enough to make proper provision for the applicant while still enabling substantial legacies to be provided to the deceased’s sisters, Daly AsJ noted that ‘it is significant that the will was made more than ten years prior to the commencement of the relationship between [the deceased] and [the applicant]’: at [74]); Whitehead v State Trustees Ltd (2011) 4 ASTLR 528; [2011] VSC 424; BC201106685 at [351] per Bell J (where the will was more than 30 years old, and therefore left nothing to his longstanding partner) (aff’d State Trustees Ltd v Whitehead [2012] VSCA 274; BC201208831). See, for example, Corbett v State Trustees Ltd [2010] VSC 481; BC201007929 (where the deceased reduced the applicant’s testamentary entitlement to reflect the fact that the relationship with the applicant was now ‘cordial but distant’ instead of close, and increased the testamentary entitlement of a defendant, who the evidence revealed played an important role in the deceased’s life almost on a daily basis in his final years; Kyrou J, in dismissing the application, reasoned that the fact that the deceased made a new will ‘indicates that he actively reviewed the dynamics of his relationships with [the applicant] and [the defendant], and that he altered his testamentary gifts to them in the light of the circumstances that prevailed’: at [121]). See 19.34–19.38. Lieberman v Morris (1944) 69 CLR 69; BC4400033; Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494 at 513; BC5600470 per Williams J. [2010] NSWSC 350; BC201002745 at [63] per McLaughlin AsJ. Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159; BC200804698 at [46] per Keane JA (‘the voluntary statement of the parties of their mutual intentions and expectations in a form intended to be binding affords a reliable conspectus of the totality of the relationship of the parties and of their respective relationships with others who have a claim on their bounty’), at [142] per Miur JA, at [207], [208] per Fraser JA. Cf the law applicable to financial agreements made before marriage or in contemplation of a de facto relationship under the Family Law Act 1975 (Cth): see ss 90B, 90UB (requirements for financial agreements), 90G, 90UJ (when financial agreements are binding), 90K, 90UM (circumstances in which court may set aside a financial agreement). Singer v Berghouse (1994) 181 CLR 201 at 207–8; BC9404642 per Mason CJ, Deane and McHugh JJ. Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159; BC200804698 at [46] per Keane JA. See, for example, Singer v Berghouse (1994) 181 CLR 201 at 208; BC9404642 per Mason CJ, Deane and McHugh JJ (referring to the brevity of the marriage, and the significant financial contributions made by the deceased to the maintenance of the applicant, together with the lack of any detailed evidence of either financial or non-financial contributions by the applicant); Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159; BC200804698 (in a case also involving a pre-nuptial agreement effected by parties to a marriage late in life, Keane JA remarked (at [44]) that ‘[t]he mutually agreed intentions and expectations of the [parties] expressed in the pre-nuptial agreement in relation to their adult children, and their acknowledgment that each should not seek to defeat the intentions of the other in that regard, was a consideration which should be regarded by the court as illuminating the totality of their relationship, and as suggesting that the provision made for [the applicant] by the [deceased] was adequate for his proper maintenance and support within the meaning of the Act’; see also at [209] per Fraser JA). See, for example, Gigliotti v Gigliotti [2002] VSC 279; BC200203987 (where parties to a marriage

198. 199. 200. 201. 202. 203. 204. 205. 206. 207. 208.

209. 210.

211.

212.

213.

late in life entered into a pre-nuptial agreement that the wife would not make a claim on the husband’s property, except that the will of the husband gave the wife a life estate in the property; dealing with the wife’s application, upon the husband’s death, to sell the property and move closer to her family, Byrne J stated (at [12]) that ‘I do not think I should ignore the fact that, upon their marriage, this couple established what seemed to them was a sensible and serious property regime’; his Honour allowed the sale of the property (worth $260,000), and allocated part of the sale proceeds ($150,000) for the wife to purchase another property (to which the life estate would apply) as well as $50,000 as a ‘nest egg’ for the wife: at [13]). See 1.31–1.35. See 1.40–1.51. As to the notional estate provisions, see 20.58–20.78. [1941] AC 294 (on appeal from New Zealand). [1972] AC 572 (on appeal from New South Wales) (where a testator agreed with his housekeeper that, if she worked for him for the rest of his life on certain terms, he would bequeath his house and contents to her; the testator did so but, after he died, his children made a claim for provision). (2003) 214 CLR 169; [2003] HCA 9; BC200300694 per Gleeson CJ, Gummow, Kirby and Hayne JJ, Callinan J dissenting (see at [159]–[171]). Dillon v Public Trustee of New Zealand [1941] AC 294 at 303–4. Barns v Barns (2003) 214 CLR 169; [2003] HCA 9; BC200300694 at [34]. [1972] AC 572 at 597. Barns v Barns (2003) 214 CLR 169; [2003] HCA 9; BC200300694 at [129]. Barns v Barns (2003) 214 CLR 169; [2003] HCA 9; BC200300694 at [115], endorsing the reasoning of Street J in Re Seery (1969) 90 WN (Pt 1) (NSW) 400 (from which the appeal to the Privy Council in Schaefer v Schuhmann [1972] AC 572 was made). See 15.11. See, for example, Milillo v Konnecke (2009) 2 ASTLR 235; [2009] NSWCA 109; BC200903916 (where Ipp JA (at [87]) noted that the rights of the testator’s second wife (R) to make a family provision claim derived from statute and overrode the agreements the testator entered into with his first wife (M) (under which the testator agreed that he would bequeath the matrimonial home to the daughters of his first marriage), but that (at [88]) these agreements, nevertheless, were factors to which the trial judge was entitled to have regard). Taylor v Farrugia [2009] NSWSC 801; BC200907277 at [59] per Brereton J. See, for example, Thom v Public Trustee (SC(NSW), McLaughlin M, 2 April 1992, unreported) BC9204002 at 10–11; Coller v Coller [1998] VSC 80; BC9805004 at [15] per Smith J. (SC(NSW), Bryson J, 31 July 1995, unreported) BC9505102 at 14 (emphasis supplied). See also Shah v Perpetual Trustee Co (1981) 7 Fam LR 97 at 100 per Rath J; Parker v Public Trustee (SC(NSW), Young J, 31 May 1988, unreported) BC8801885 at 7–8; Bondelmonte v Blanckensee [1989] WAR 305 at 312 per Malcolm CJ; White v Muldoon [2006] VSC 204; BC200604085 at [70] per Hollingworth J; Evans v Levy [2011] NSWCA 125; BC201103284 at [55] per Young JA (who saw nothing in Bryson J’s remarks to disapprove). See, for example, Bondelmonte v Blanckensee [1989] WAR 305 (where the Full Court, in a case involving a large estate with no other moral claim competing with that of the claimant, expressly rejected the view that receipt of a pension by the claimant was relevant: see at 312 per Malcolm CJ (who held that the approach to ‘proper’ maintenance should not be directed to ensuring that pension rights were unaffected), at 318 per Wallace J (‘welfare payments made to a daughter do not relieve a father of his moral responsibility to her, especially when he has a substantial estate with no other moral claims upon it’)). Cf Maas v O’Neill (2013) 11 ASTLR 525; [2013] WASC 379;

BC201303404 at [35]–[37] per Pritchard J. 214. Parker v Public Trustee (SC(NSW), Young J, 31 May 1988, unreported) BC8801885 at 7 (adding that ‘[i]t would be contrary to the policy of the Act for the Court to so make an order that there was thrown on to the public purse the support of a dependant to the advantage of a “wealthy” beneficiary’: at 8). Although some judges have openly acknowledged that an aim of family provision legislation is ‘preventing those left behind from becoming a charge on the state’ (Tataryn v Tataryn Estate [1994] 2 SCR 807 at 815 per McLachlin J, delivering the judgment of the court), this does not appear to have been a major driving force in the judicial application of the legislation in the Australian context. 215. Wentworth v Wentworth (SC(NSW), Bryson J, 14 June 1991, unreported) BC9101896 at 132 (not questioned on appeal: Wentworth v Wentworth (CA(NSW), Samuels AP, Priestley and Handley JJA, 3 March 1992, unreported) BC9202033). 216. Re Hunter (deceased) [1940] GLR 100 at 101 per Smith J. Cf the current New Zealand legislation, which expressly states that, in making any order under this Act for provision out of the estate of a deceased person, the court must disregard any benefit under the Social Security Act 1964 (NZ) that is or may become payable to any person: Family Protection Act 1955 (NZ) s 13. 217. [2004] ACTSC 127; BC200408551 at [55]. 218. King v White [1992] 2 VR 417 at 424 per Hedigan J. See also Shah v Perpetual Trustee Co (1981) 7 Fam LR 97 at 100 per Rath J (who did not think the consideration of the applicant’s pension entitlement and its continuance in the future could assist in the formulation of proper provision for the applicant). 219. Mitchell v Osborne (SC(NSW), Macready M, 17 November 1994, unreported) BC9403402 at 14–16; Studdert v Wildash (SC(NSW), Macready M, 5 October 1995, unreported) BC9505509 at 10–12. 220. See, for example, Re Pope (1975) 11 SASR 571 at 574 per Bray CJ. 221. Chan v Tsui [2005] NSWSC 82; BC200501012 at [59]–[64]. 222. Re Beard [1963] Qd R 90; Chapman v Elder’s Trustee & Executor Co Ltd [1971] SASR 63; Hackett v Public Trustee for the Australian Capital Territory (1997) 138 FLR 323 at 341–2; BC9701642 per Higgins J.

[page 680]

CHAPTER 20

Family Provision Orders Property Available to Satisfy Family Provision Order Property that is part of the ‘estate’ of the deceased When is the estate ‘distributed’?

20.3 20.3 20.6

Effect of Family Provision Order As a codicil or as modification of intestacy Order allocates burden of provision proportionately Exemption from stamp duty

20.10 20.10 20.13 20.14

Form of Family Provision Order Generally Interim family provision orders Order that amount be set aside as a class fund Order for exoneration of part of estate Order where concern that applicant cannot manage provision Order where concern that provision may benefit third parties Where provision could benefit the applicant’s creditors Where provision will be used to pay debts

20.15 20.15 20.17 20.18 20.19 20.20 20.26 20.28 20.30

Order by Consent Requirement of court approval Unique New South Wales provisions Release of rights Mediation and consent orders

20.32 20.32 20.35 20.35 20.37

Orders after Distribution The territories and South Australia New South Wales Western Australia

20.38 20.39 20.40 20.41

Quantifying Amount of Provision

20.44

Variation, Suspension and Discharge of Family Provision Orders Scope of power Jurisdictions other than New South Wales and Queensland Provisions peculiar to Western Australia New South Wales Queensland

20.48 20.48 20.50 20.51 20.52 20.53

Appeal Against Family Provision Order Standard of review

20.54 20.54 [page 681]

Costs on appeal Notional Estate Orders — New South Wales Overview ‘Relevant property transactions’ Meaning of ‘relevant property transaction’ Examples of ‘relevant property transactions’ When relevant property transactions take effect When notional estate orders may be made Where property of estate distributed: s 79 Where estate affected by relevant property transaction: s 80 Where estate affected by subsequent relevant property transaction: s 81 Where property of deceased transferee’s estate held by legal representative or distributed: s 82 Matters required before order can be made Matters to be considered by court before making notional estate order Determination of property to be subject to notional estate order Restrictions on out-of-time or additional applications

20.57 20.58 20.58 20.60 20.60 20.61 20.63 20.64 20.65 20.66 20.67 20.68 20.70 20.71 20.74 20.76

20.1 Once the court has determined that it has jurisdiction to order provision, and that in its discretion it is appropriate to so order, consideration

must be given to the order itself. At the outset the court must ascertain the property available from which an order for provision may be satisfied, which may in some circumstances be impacted upon by any distribution of the estate. The order, if made, operates as a codicil to the will, or as a modification to the intestacy rules, and thought must be given to its form and effect. It is open to the disputants to reach an agreement as to the division of the deceased’s estate, but its effectiveness is premised upon a consent order by the court. Where the court makes an order for provision, whether or not by consent, it must stipulate its quantum and address the question of costs. There is power in the court to vary, suspend or discharge an existing order for provision, and to hear appeals against an order made by a lower court. Each of these matters is elaborated in this chapter. 20.2 Costs orders in family provision matters, though they would merit inclusion in this chapter, are discussed in the chapter dedicated to costs orders in disputes over deceased estates.1

Property Available to Satisfy Family Provision Order Property that is part of the ‘estate’ of the deceased 20.3 As any order for provision is made out of the estate of a deceased person, the property that is available to meet the claims of an applicant is limited to property that comes within the ‘estate’. Provision can therefore be made only out of property the deceased beneficially owned at the time of death and that passes to the deceased’s legal personal representative,2 less the [page 682] liabilities of the estate. Contractual obligations undertaken by the deceased inter vivos, which bind the estate, may therefore affect the property available to meet a family provision order.3 20.4 No family provision order can extend to property not beneficially owned by the deceased at his or her death. To the extent to which property,

though legally owned by the deceased, is subject to an equitable interest in favour of another person, it is not part of the deceased’s estate.4 And a legally effective disposition of property prior to death — even if very close to the time of death — places that property beyond the reach of the legislation.5 For instance, property the subject of a gift in contemplation of death (donatio mortis causa) does not at general law form part of the deceased’s estate, as it is disposed before death and outside of any will6 (although the position is modified by statute in Queensland).7 This inherent limitation in the statutory scheme aligns to the fact that a family provision order takes effect as a codicil to the deceased’s will executed immediately before death.8 It must, however, be read subject to statute in New South Wales pursuant to which the court may, for this purpose, designate property as ‘notional estate’ that is not part of the estate of a deceased person.9 20.5 Also, as a matter of general principle, property that an executor or administrator of the deceased’s estate has distributed pursuant to the terms of the will or the rules of intestacy is no longer part of the ‘estate’ for the purposes of the jurisdiction to make a family provision order in relation to it.10 The position is modified by statute in the territories so far as concerns distributions to the deceased’s dependants or distributions within the limitation period without notice of an application for provision.11 It is also modified, more generally, by statute in New South Wales and Western Australia, which envisages that recipients of distributions are not always shielded from a family provision order.12 And it seems that in South Australia likewise there is some scope for the beneficiary to be ordered to hold property distributed for a successful provision applicant.13

When is the estate ‘distributed’? 20.6 The family provision legislation in New South Wales states that property held by the personal representative of a deceased estate as trustee for a person or for a charitable or other purpose is to be treated, for the purposes of family provision applications, as not having [page 683]

been distributed unless it is vested in interest in that person or for that purpose.14 This gives effect to the High Court’s decision in Easterbrook v Young,15 which stands as authority for the proposition that, under family provision legislation, ‘distribution’ of the estate occurs only when the property in question leaves the hands and control of the personal representative and vests in other persons, whether as trustees for the purposes of the trusts of the will or as the persons beneficially entitled. Accordingly, even if the personal representative has completed the administration of an estate, and so holds any assets remaining in his or her hands on trust for the beneficiaries, those assets remain available to satisfy the legitimate claims of applicants for provision. In so ruling, their Honours adopted a restrictive interpretation16 of the term ‘distribution’, one they considered as justified on a purposive interpretation of the (then) New South Wales legislation. The analysis started by reference to the purpose of the family provision legislation, which their Honours explained as follows:17 The evident purpose of the Act is to place the assets of the deceased passing to the personal representative at the disposal of the court in the provision of maintenance for the nominated dependents of the deceased. Because the court’s order has effect as a codicil, the property over which provision may be ordered includes property which, but for the order, would have been beneficially owned either wholly or partly by donees under the will or next of kin under an intestacy. It is plain that the burden of an order is to be thrown on property to which persons are beneficially entitled under the will or on an intestacy.

20.7 A provision to the effect that no distribution of any part of the estate made before an application to extend time can be disturbed18 — coupled with the provision treating the court’s order as having effect as a codicil19 and another vesting in the court the power to order provision to be made out of any assets so distributed20 — led the court to conclude that what takes property out of the deceased’s estate is ‘the actual distribution of the estate, its removal from the hands or name of the person or representative and its placement in the hands or name of the testamentary or statutory beneficiary’.21 Their Honours perceived nothing in the language or policy of the statute to suggest that a change in the capacity in which the personal representative holds assets received on the grant of representation constitutes either a removal of those assets from the power of the court or a relevant distribution of the estate. Expressed another way, the words ‘distribute’ and ‘distribution’ here are used not in a sense of changing the capacity in which an asset is held but in the

sense of ‘a physical parting of that asset and its placing in the hands or name of an intended beneficiary’.22 The court concluded that it is ‘only when the personal representative has parted with all the assets which came to his hands by the grant of probate or letters of administration that there has been a final distribution of the estate of the testator or intestate’.23 The contrary view, their Honours considered, had the capacity to defeat the purpose of the legislation. For instance, where an application is made within time but, between the date of the application and the court order, administration has been completed, no order could be made even though the application was in time. Another repercussion of the contrary view was that, if the administration could be [page 684] completed very quickly and the estate was to be held on trust for a charity, this would challenge the ability of an eligible person to apply for provision once the executor became a trustee of the charity. 20.8 It was clear that the High Court in Easterbrook intended its judgment to have application across jurisdictions, given its dictum that ‘[t]estator’s family maintenance legislation throughout Australia is in relevant respects in common form … with the consequence that the decision in this case will determine the meaning and effect of comparable provisions elsewhere in Australia’.24 To this end, there is case authority applying the ruling outside New South Wales, including in South Australia,25 Tasmania26 and Victoria.27 That the legislation in these jurisdictions is not identical to the New South Wales legislation the subject of Easterbrook has not prevented courts from adopting the High Court’s reasoning. Whatever those differences, they have proven insufficient to justify an alternative outcome. For example, in Re Lago,28 it was argued that as the executors had done all in their power to transfer the real estate to themselves as the beneficiaries (all documents were lodged with the titles office and were awaiting final registration by the date of the court hearing), the estate had been ‘distributed’, thereby barring an extension of time. Brooking J rejected this argument, stating that Easterbrook

made it plain that, in this context, a ‘distribution’ represents ‘an act of delivery or transfer, not something that may result from the transmogrification of the personal representative’.29 20.9 Prior to the High Court’s decision in Easterbrook v Young, the law was clear and had been applied multiple times in Australia, following a line of New Zealand authorities. It established that once the executors had got in all the estate, completed their executorial duties and assented to the dispositions of the will taking effect, so that thereafter they held the estate as trustees for the persons entitled, there had been a final distribution of the estate. Accordingly, assets ceased to be part of the estate for this purpose once the executor held them in the capacity of a trustee for the beneficiaries.30 The reasoning underscoring this approach appears from the following extract of Gibbs J’s judgment in Re Donkin (deceased):31 [T]he words ‘the estate of the testator’ … refer to all the property that belonged to the testator and has not yet passed to any other person absolutely and in his own right. Once the title of a beneficiary has become complete, so that he holds in his own right the property given to him by the will, that property ceases in any ordinary sense to be part of the estate of the testator, and becomes part of the estate of the beneficiary. The [Testator’s Family Maintenance Acts] give no power either to the court to order that provision be made out of the estate of a beneficiary, or to the executors to recover former assets of the testator’s estate that have been distributed to the beneficiaries entitled to receive them … Once an asset ceases to be an asset in the testator’s estate, and the beneficiary to whom it is given has received it in his own right, there is no power to subject that asset to the incidence of an order under the Acts, or to require the beneficiary to restore the asset to the estate or to make a payment in satisfaction of the order … If a will requires the executors to hand over the residuary estate to other persons to hold it as trustees, once the estate has been so handed over it ceases to be the estate of the testator and is beyond the power of the court to affect by an order under the Testator’s Family Maintenance Acts. If however the executors are themselves the trustees, once the estate has assumed the character of a trust estate

[page 685] it equally ceases to be part of the testator’s estate; in equity it belongs to the beneficiaries and the court is not empowered to divest what has been vested in them.

Even though in Easterbrook their Honours declared this approach to be incorrect, Queensland courts persist in applying it,32 chiefly due to the Queensland legislation being ‘significantly different’33 to that before the court in Easterbrook. Whether the differences are so substantial as to justify a

different approach may indeed be queried, though it may be conceded that the Queensland statute diverges from its earlier New South Wales counterpart more significantly than equivalent legislation elsewhere. Yet the extent to which there are grounds as a matter of policy to broaden the potential availability of standing to seek provision — which Easterbrook encourages — may well be where the debate, and the cause of the dichotomy, lies.

Effect of Family Provision Order As a codicil or as modification of intestacy 20.10 The family provision legislation other than in Queensland states that a family provision order operates as if it were a codicil to the will of the deceased person executed by him or her immediately before death.34 In the event of intestacy, the order takes effect as a modification of the provisions of the relevant intestacy legislation (in the territories, Tasmania, Victoria and Western Australia)35 or as if the provision had been made by a will of the deceased (in New South Wales and South Australia).36 Without limiting the foregoing, the New South Wales legislation empowers the court, at the time of distribution of an estate that is insufficient to give effect to a family provision order, to make such orders concerning the abatement or adjustment of distributions from the estate as between the person in whose favour the family provision order is made and the other beneficiaries as it considers to be just and equitable among the persons affected.37 20.11 As a family provision order has effect not as a court order, but as a codicil to the will, it has been described as ‘a unique form of order’.38 There is no judgment in the true sense of the word; there is only an order in the nature of adding a codicil to the testator’s will.39 A family provision order is therefore enforced not as a court order40 but as a codicil, by the remedies a beneficiary has against a defaulting executor, chiefly by way of an administration action.41 It does not bind an executor, as a defendant to the proceedings, as an order to pay money or to do an act or thing, ‘but only in an indirect manner insofar as it imposes a new obligation in

[page 686] the trusts of the will, to be enforced as such’.42 It follows that an executor’s disobedience to or interference with the performance of a family provision order cannot constitute a contempt of court.43 20.12 In Queensland the legislation simply states that upon a family provision order being made, the portion of the estate affected by the order is held subject to the provisions of the order.44 This does not appear to alter the vehicle through which the order is enforced vis-à-vis other jurisdictions. In any case, the South Australian, Tasmanian and Western Australian statutes make equivalent provision.45 Other than in New South Wales and Queensland, the family provision legislation directs the court, upon making a family provision order, to endorse or attach a certified copy of the order to the probate of the will or letters of administration.46 For this purpose, the court may require the production of the probate or letters of administration (in Tasmania and Victoria, retain such probate or letters until the copy is made).

Order allocates burden of provision proportionately 20.13 Other than in New South Wales, and unless the court otherwise orders, the family provision legislation casts the burden or incidence of payment(s) ordered for provision on the persons beneficially entitled to the estate (other than those in whose favour the order is made) in proportion to the values of their respective interests in the estate.47 In the territories, Victoria and Western Australia, the legislation adds that the estates and interests of persons successively entitled to any property that is settled by the will is not, for this purpose, to be separately valued; instead the proportion of the provision to be borne by that property must be raised out of or charged against the corpus of the property.48

Exemption from stamp duty

20.14 All jurisdictions exempt from stamp duty, or impose only a nominal duty on, the transmission of property by will or intestacy.49 As the family provision legislation (other than in Queensland) treats a family provision order as if it were a codicil to the deceased’s will, or as a codicil or amendment to the intestacy rules,50 the above exemption from stamp duty extends to property transferred pursuant to such an order. The Queensland position is the same in any case, where the family provision legislation states that all duties payable in consequence of the death of a person are computed as if the provisions of the order had been part of the will or, if the person died intestate, as if the provisions of the order had been part of the law governing the distribution of the intestate estates.51 [page 687]

Form of Family Provision Order Generally 20.15 In all jurisdictions except Queensland and Western Australia the family provision legislation explicitly states that an order for provision must specify the amount and nature of the provision (if any) to be made, and any conditions, restrictions and limitations imposed by the court.52 In South Australia, Tasmania, Victoria and Western Australia the order must specify the part(s) of the estate from which provision is to be raised or paid as well as prescribe the manner of raising and paying that provision.53 Even in those jurisdictions that make no such explicit provision, there is obvious sense in the orders specifying the foregoing.54 The New South Wales legislation adds that a family provision order may require the provision to be made in one or more of the following ways:55 • • • • •

by payment of a lump sum of money; by periodic payments of money; by application of specified existing or future property; by way of an absolute interest, or a limited interest only, in property; by way of property set aside as a class fund for the benefit of two or more

persons; • in any other manner the court thinks fit. Equivalent provision, so far as lump sum and periodic payments are concerned, also exists in Queensland, South Australia, Victoria and Western Australia.56 In Tasmania the court may, it is expressly stated, order that the provision consist of the payment to the applicant of a lump sum, a life interest or any lesser interest in any dwelling house belonging to that estate, or a life interest or any lesser interest in a dwelling house that the court may order to be purchased for occupation by the applicant.57 The breadth of the court’s discretion, in any case, dictates that the court is not constrained in moulding orders that will foster justice in each case.58 Also, in determining whether to make a fixed (lump) sum order or instead an order over a share of the estate, a court may be guided by, inter alia, the impact on the substance of the order by any costs award to be met by the estate59 and any uncertainties surrounding the realisation and/or value of the relevant property.60 20.16 In New South Wales the legislation makes express provision for various consequential and ancillary orders, culminating in ‘any other matter the court thinks necessary’,61 and for an [page 688] award of interest where provision is ordered via payment of a sum of money.62 There is also specific power granted to the court to restrain the final or partial distribution of an estate, with limited exceptions,63 pending its determination of an application for a family provision order.64

Interim family provision orders 20.17 New South Wales and Western Australia are unique in empowering the court to make an ‘interim family provision order’ before fully considering an application for a family provision order.65 The need for express power to make interim orders stems from doubt over whether courts would otherwise possess this power.66 These provisions recognise, it is said, that in some cases

an applicant for family provision may have ‘a pressing need for financial support pending the final determination of his or her application’.67 In New South Wales the order is premised on the court being of the opinion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order.68 No such qualification appears in the Western Australian provision, which simply requires that the court be of the opinion that the order ‘is necessary for the purpose of providing those things immediately necessary for the maintenance, support or education (including past maintenance, support or education provided after the death of the deceased) of any person who was totally or partially dependent on the deceased immediately before the deceased’s death’. At the same time, however, case authority indicates that, in the proper exercise of the court’s discretion, heed should be paid to the merits of the applicant’s case as well as the likelihood, should the claim fail, of repayment of any interim award.69 On making an interim family provision order, the court must proceed to finally determine the application for a family provision order by confirming, revoking or varying the interim order.70 [page 689]

Order that amount be set aside as a class fund 20.18 The family provision legislation in the territories, Tasmania and Western Australia empowers the court to order that an amount specified in the order be set aside out of the deceased’s estate, and held on trust as a class fund for the benefit of two or more persons specified in the order in whose favour orders for provision out of the estate have been made.71 In this event, the trustee of the fund must invest so much of the amount that, in his or her discretion but subject to any directions or conditions given or imposed by the court, is not applied for or towards the maintenance etc of the persons for whose benefit the class fund is held,72 or to any one or more of them to the exclusion of the other(s), in the shares and in the way that the trustee, from time to time, determines.73

In the territories, if an amount is set aside as a class fund, the administrator of the deceased’s estate is to be the trustee of the class fund, unless the court otherwise orders.74 In Tasmania and Western Australia, if the trustee is not the executor or administrator of the deceased’s will, the court may give such directions as it thinks fit relating to the payment to the trustee of the amount that is to be held on trust as a class fund, and may exercise any power conferred on it under trustee legislation’s expediency jurisdiction at any time.75 As the above power is prefaced, except in Western Australia, by the phrase ‘[w]ithout limiting the powers of the court’ or ‘[w]ithout prejudice to the powers conferred on the court’, there is no reason to conclude that a similar power would not otherwise accrue to courts in other jurisdictions, especially in view of the breadth of the statutory discretion in making family provision orders.76

Order for exoneration of part of estate 20.19 Other than in Victoria, the family provision legislation empowers the court to fix a periodic payment or lump sum to be paid by any beneficiary in the estate affected by a family provision order, which is to represent or otherwise be in commutation of that proportion of the property in the estate affected by the order borne by the beneficiary’s portion of the estate, and it may then exonerate that portion from any further liability under the order.77 In making such an order, the court may direct in what manner the sum or payment is to be secured, to whom the sum or payment is to be made, and in what manner it is to be invested for the benefit of the person in whose favour the order is made.78 Provisions of this kind, it has been observed, ‘ensure minimal disruption to other parties’ actual positions or expectations in relation to certain property, by allowing beneficiaries of an estate to apply to make periodic [page 690] payments to an applicant, and thereby save some property from being subject

to an order for family provision’.79 The Queensland and Tasmanian legislation empowers the court to exonerate any part of the estate of a deceased person from the incidence of an order under the legislation, after hearing the parties who may be affected by the exoneration as it thinks necessary. For this purpose, the court may direct any executor or administrator to represent, or appoint any person to represent, any of those parties.80

Order where concern that applicant cannot manage provision 20.20 Circumstances may arise where the court is minded to order provision in favour of an applicant, but harbours a concern that, whether by reason of the applicant’s addiction or spendthrift nature, the provision may prove ultimately of little lasting benefit to the applicant. For instance, in Ray v Moncrieff,81 involving an applicant who was ‘a chronic drunkard’, Chapman J opined that ‘it would be a novel use of the powers of this Act to relieve the [applicant] of his burdens when the only result would be to set free his resources to be spent in drinking’. More recently, the New South Wales Court of Appeal observed that ‘[a] tendency on the part of an applicant to waste money on items that are either of no use or are positively damaging to himself can enter into what is adequate provision for proper maintenance of that applicant’.82 20.21 Case authority, in the main, shows that this concern is addressed less by denying provision, but more via the manner in which the order is structured. An applicant’s tendency to spend money unwisely — whether due to addiction to alcohol, drugs or gambling, or to spendthrift characteristics83 — enters into consideration for the purpose of the ‘discretionary’ stage of the relevant inquiry; that is, once jurisdiction is established, in formulating an order under the legislation. The terms or conditions of an order are determined from the perspective of how a just and wise testator would have preserved the value of the provision. This is one interpretation of the following remarks of Young J in Bondy v Vavros:84 If a person is entitled to an order, what they do with the money that they receive is their business

and it is none of my affair if I very much fear that the money may be wasted on wine, women and song in a short period of time. I have deliberately used that expression to make it clear that I am not referring at the moment to the facts of this particular case. On the other hand, when one is considering what a wise and just testator would have done, if one can see that a plaintiff is a spendthrift and the testator has arranged his will in such a way as to limit the funds flowing to the plaintiff, then one may very well come to the conclusion that the plaintiff has failed to establish that there has been any breach of moral duty.

Although this statement has sometimes been treated as though the court should disregard the likely use that an applicant will make of an award,85 or disregard it at the jurisdictional stage though possibly taking it into account in the form of the order,86 such a reading fails to take Young J’s remarks in their entirety. Campbell JA in Hampson v Hampson explained the relevant legal principle as follows:87 [page 691] The sense of the whole of the paragraph [extracted from Bondy v Vavros] is, if a person is entitled to an order (ie, to receive what is adequate for proper maintenance, education and advancement in life, or what the wise and just testator would have given him) it is no further concern of the court that there is a prospect that the applicant might waste the money. However, to the extent to which the wise and just testator would take it into account, the prospect of the applicant wasting the money is a legitimate matter to take into account in deciding whether the applicant has been left without adequate provision for proper maintenance, education and advancement in life.

20.22 The words italicised in the above quote, and the phrase ‘wise and just’ in particular, may provide an avenue to justify why no provision is made for an addicted or spendthrift child. ‘If the son was a wastrel’, it has been observed, ‘whilst a fond father might make provision for him, it may be that a wise father would not’.88 But in other instances, assuming the jurisdictional threshold has been overcome, and the competing claims on the deceased’s estate are not more compelling than those of the applicant, the terms or conditions placed on the order can address the danger of dissipation. For example, in Green v Perpetual Trustee Co Ltd89 Hodgson J, being concerned that an applicant was not yet entirely free of his drug addiction, envisaged that ‘he should not have absolute control of the money for some period of years and, in the meantime, there should be some provision made that the money be used for purposes such as the acquisition of a business and

that if the business is sold any proceeds be used for similar purposes’. In Herszlikowicz v Czarny90 the drug problems the deceased’s son suffered, rather than denying a claim for provision, led Hargrave J to consider that ‘a wise and just testator would … have provided such greater provision for his son in the form of a trust which was structured in a way to, in effect, protect his son from himself’. And in McLean v Public Trustee91 Macready M made an order in favour of a daughter with a gambling problem, albeit subject to a protective trust for her lifetime ‘with power to the Public Trustee to advance up to the whole amount of the capital sum in payment of liabilities of the [daughter], for any matters which are necessary for her support, welfare, medical attention or the like’. 20.23 In determining the appropriate restrictions to be imposed on an applicant’s provision, the court is wary of imposing a condition that is too draconian, or too imprecise, to come within the contemplation of a wise and just testator. A condition that the applicant abstain from a drug, as was imposed in Re Fletcher (deceased)92 in respect of an applicant ‘addicted to drink’, may fail on both counts. As it would mean that, if the applicant thereafter consumed any alcohol, all provision would be forfeited, Campbell JA in Hampson v Hampson93 could not believe that ‘the wise and just father would impose such a draconian condition’. If it meant that the applicant should, ‘as a matter of regular practice, rather than occasional lapse’ abstain from using alcohol, it would be too imprecise to be of practical use, and difficult to enforce.94 20.24 Just as a court may, as part of the discretionary stage of its inquiry, impose terms or conditions on an award of provision in circumstances where the applicant’s addiction may [page 692] cause its premature dissipation, the same may ensue where, for other reasons, a wise and just testator would have genuine concerns as to whether the applicant could properly manage any testamentary provision. These may arise out of the (young) age of the person, or it may otherwise stem from his or her inability to

manage money or assets. A testator who actually harbours those concerns will likely restrict a beneficiary’s access to or control over the relevant bequest(s), often via a trust. If a testator, whether driven by concern over the money management ability of one or more of their offspring (or of their spouse) or otherwise, opts to make no or little provision for those persons, the court may nonetheless give effect to how a ‘wise and just’ testator would have acted in the circumstances. 20.25 The court has a wide discretion, in this regard, to give effect to what it considers would be the acts of a wise and just testator. It may, for instance, establish a (protective) trust relating to the subject matter of the provision,95 whether ongoing or for a limited period,96 and/or stipulate that the provision be staggered time-wise. In Hoadley v Hoadley97 Young J gave provision to the deceased’s son, who was in prison and had been so for some 14 years of the previous 20 years, structured in a ‘drip feed’ fashion over time, set amounts being available upon his release from prison (to enable him to fund accommodation and expenses in looking for work) and then upon the elapsing of several temporal milestones without once again being imprisoned. And in Carroll v Cowburn98 his Honour ordered provision for an applicant, whose ability to handle money was limited, in a form that took account of the applicant’s limitations. A sum was to be held on trust for the payment of particular itemised expenses, and then multiple legacies separated by the expiry of time, the final one being for the specific purpose of purchasing a car. An alternative is for a wise and just testator, and thus the court, to make provision for an annuity or a life interest in property, or by some other measure reduce the prospect of dissipation and thereby protect the interests of persons who may take in remainder.99 It should not be assumed, however, that past financial and personal misadventures will tarnish the applicant’s claim in perpetuity. A wise and just testator, and the court, may be expected, where open on the evidence, to appreciate that the applicant has subsequently gained insight into earlier failings sufficient to negate the need to circumscribe the relevant provision.100 [page 693]

Order where concern that provision may benefit third parties 20.26 That a person other than the applicant may benefit, whether directly or indirectly, from an order for provision is not relevant to whether the deceased has made adequate provision for the applicant’s proper maintenance and support. Although it is not relevant at this ‘jurisdictional’ stage of the relevant inquiry, it may be taken into consideration and given weight in the exercise of the court’s discretionary inquiry, namely whether or not to order provision and, if so, how much, in what form and on what terms.101 20.27 The identity of the third party, and his or her association or link with the applicant, cannot be ignored in this context. For instance, that the applicant’s dependent children may benefit from an award of provision may be a consideration in favour of the award of provision;102 after all, the maintenance and support of a person clearly encompasses the obligations of maintenance and support owed to his or her dependants. And if an order for provision made for a disabled applicant includes the costs of a carer, the fact that the carer may also obtain a benefit by, say, living rent-free in the applicant’s home, is not ordinarily a significant matter.103 Conversely, if the order provides significant benefits to third parties largely unrelated to the applicant’s need for provision, that fact weighs against the order, or at least against an unconditional order. Accordingly, there are occasions where judges have imposed conditions or restrictions on provision granted to a second spouse of the testator, in order to ensure that, upon the spouse’s death, the remaining estate of the testator reverts to the testator’s natural children from his or her first marriage, and not the children of the second spouse.104 In Khoury v Public Trustee105 McLaughlin AsJ paid regard to the fact that the applicant appeared to have become associated with or influenced by persons of criminal and disreputable background, who were clearly looking to benefit from any provision he might receive from the deceased’s estate. His Honour considered it ‘quite inappropriate’ that an order for provision in the applicant’s favour should benefit others106 and, fearing that unscrupulous persons may exploit the applicant’s inexperienced and simple nature, ordered that payment of provision, for his benefit personally, remain under the Public Trustee’s control.107 In Borebor v Keane108 a family

provision order that benefited a young Filipino woman was subjected to a protective trust for a 20-year period to ensure that the funds were used to pay for a house, living expenses and tertiary education fees, Hargrave J’s chief concern being that the woman could be subjected to pressure from others for hand-outs.

Where provision could benefit the applicant’s creditors 20.28 Bankruptcy law dictates that property belonging to the bankrupt, and any property beneficially coming into the bankrupt’s hands while an undischarged bankrupt, is available to his or her trustee-in-bankruptcy to distribute amongst the bankrupt’s creditors.109 So if an applicant for provision remains, at the time of the court’s order, an undischarged bankrupt, the subject matter of any order for provision in his or her favour, to the extent that it vests as the property of the applicant, becomes available to creditors, and not for the applicant’s own [page 694] maintenance and support. This explains why, even if satisfied that the deceased has not made adequate provision for the applicant’s maintenance and support, where the applicant remains an undischarged bankrupt the court will, as a matter of discretion, ordinarily refuse to order provision.110 20.29 To make such an order in these circumstances would undermine the object of the family provision regime — to rectify a deceased’s failure to make adequate provision for persons closest to him or her. Unless an order can have this effect, there is arguably little justification in making it. For this reason, also, no standing vests in an applicant’s trustee-in-bankruptcy to seek provision on the applicant’s behalf. Although occasions exist where a person may apply for provision on an applicant’s behalf, these are limited to where the application is made for the applicant’s own benefit.111 Standing in this sense is personal, and does not attach to property.112 No standing vests in a person who represents the interests of persons other than the applicant. In no way can the trustee-in-bankruptcy, or the creditors whom he or she represents, be seen

as being owed any moral duty by the deceased to make provision. Conversely, if the applicant was an undischarged bankrupt at the date of the deceased’s death but had been discharged from bankruptcy at the time the court makes the order for provision, that order does not serve to ‘backdate’ the provision to a date preceding the discharge. Hence, assuming that the jurisdictional threshold for the order is met, and no reasons exist discretionwise to withhold the order, its subject matter vests in the applicant beneficially rather than passing to his or her trustee-in-bankruptcy.113

Where provision will be used to pay debts 20.30 That the applicant will use some or even all of the provision a court is minded to order to repay creditors is not a reason by itself for refusing to exercise its discretion in the applicant’s favour. That the benefit goes to paying off creditors, thereby reducing ongoing liabilities, does not diminish the benefit to the applicant.114 The position ordinarily differs from that where an applicant is bankrupt, where the distribution of any provision is not a matter of choice for the applicant, but a matter of direction and control by the trusteein-bankruptcy. In some circumstances, though, the difference between the scenarios may not be so stark. In Caska v Caska,115 for example, where an applicant who had significant debts, and whose assets exceeded his liabilities, had been served with a bankruptcy notice by his major creditor, Bryson J made the following remarks:116 If a large sum, even several hundred thousand dollars, came to hand for [the applicant] by way of provision from the testator’s estate it is very unlikely that it would be applied to provide him and his dependants with housing. It is far more likely that it would be seized by a judgment creditor or consumed in the struggle to satisfy creditors or keep them at bay, while an eventual outcome in availability of housing would not emerge for some years, cannot be clearly foreseen and is on the

[page 695] whole unlikely. The likelihood is that any provision ordered to be made would go to the benefit of creditors, while any benefit ultimately to [the applicant] would be long postponed and its nature and the time of its enjoyment is not possible to predict. Payment of a large sum, even several hundred thousand dollars, to him out of the testator’s estate is not actually likely to operate as provision for his advancement in life.

His Honour refused the applicant an order for provision. But it is important to appreciate that not only were the applicant’s circumstances one step towards the bankruptcy scenario, what heavily influenced Bryson J in so ruling were findings that the applicant was generating $200,000 per annum from his medical practice and had been established in his medical career chiefly through the efforts of the deceased. For this reason, inter alia, the above dicta in Caska cannot be treated as establishing any general principle.117 20.31 However, it should be noted that the family provision statutes in the territories, Queensland, South Australia and Western Australia state that a mortgage, charge or assignment of or over the provision (to be) made by a family provision order is of no force or effect unless it is made with the permission of the court.118

Order by Consent Requirement of court approval 20.32 The law encourages parties to settle their disputes rather than proceed to full adjudication. This is of especial importance in family provision disputes (and indeed disputes over deceased estates generally) because it has hardly been uncommon that a significant part of an estate has been consumed by legal costs.119 Accordingly, parties are encouraged to settle family provision claims and document an agreement to this effect. As parties cannot, via an agreement to settle a dispute,120 alter or otherwise impact on the rights of persons interested in the estate, any such agreement requires court approval to be legally effective.121 Nor can parties by consent empower the court to make orders outside its jurisdiction. Any consent order in this context requires that the court be satisfied that it is appropriate, in the circumstances, to make.122 20.33 Consistent with the policy of encouraging settlement, in the usual case the court will approve an agreement when asked to do so, and make orders to give effect to the settlement. It has been judicially observed, to this end, that ‘if parties agree to settle proceedings … and there is no other interest involved, ordinarily the court should merely make the orders in accordance

with the terms of settlement’.123 But the court does more than merely ‘rubber [page 696] stamp’ the agreement; it is not simply pacta sunt servanda.124 As explained by Le Miere J in Schaechtele v Schaechtele:125 This court cannot make an order giving effect to the proposed settlement unless the court thinks that such provision should be made out of the estate of the deceased for the proper maintenance or support of the plaintiff. But that does not mean that the court is in effect to hear the matter as if it was a contested application and then to give or to withhold orders to give effect to the settlement by comparing the settlement with the judgment which the court would have given. The court must give proper consideration to the evidence before it. The court should be aware of the risks of litigation in an area in which reasonable people can reasonably reach different conclusions and give proper weight to the fact that the parties wish to effect the settlement. If the court is satisfied that the settlement falls within the bounds of a reasonable exercise of discretion then the court should make orders to give effect to the settlement.

Years earlier a New South Wales judge, in similar vein, noted that ‘[n]o detailed consideration of jurisdiction takes place as long as the [applicant] appears to have a proper basis for his or her claim’, though adding that, in cases where the interests of infants or unascertained classes of persons may be affected by the orders, then the proposed orders are considered in more detail.126 The latter course may also be appropriate where one of the parties to the agreement seeks to withdraw from it prior to the court making any order.127 Cases where the courts have refused to approve a settlement agreement have been described as ‘unusual’128 and ‘the odd exception’.129 That the sum(s) to be provided are, in the court’s view, too low or too high may lead the court to question whether the proceedings were being conducted for a purpose foreign to that of the legislation or that a fundamental mistake vitiated the settlement process. This calls for closer curial scrutiny, albeit against the backdrop of the adversary environment, where the litigants are usually expected to be the best judges of what is in their own interests.130 20.34 Ultimately, if a proposed settlement falls outside ‘the bounds of a reasonable exercise of discretion’, using the language above of Le Miere J, the court cannot approve it. For example, in Application of Scali131 the proposed

consent orders would have conferred on the widow, who was already beneficially entitled to a $1m home, the residual estate of $15.6m. In these circumstances, Brereton J refused the order, reasoning that ‘it defies imagination that proper provision for a widow could be said to require provision out of an estate, even of this size, of something like $15 million in addition to an unencumbered home’.132 A radical change in the circumstances existing during the course of the negotiations, coupled with the lack of [page 697] endorsement and participation by the executors and a lack of certainty due to its open-ended nature, led Bryson AJ to refuse to give effect to the settlement agreement in McKenzie v Lucas.133

Unique New South Wales provisions Release of rights 20.35 Unique to the New South Wales legislation is provision for a person to release a right to apply for a family provision order, so as to ‘reduce the risk of disputation after the will-maker’s death and to encourage the making of mutually satisfactory arrangements before death’.134 Such a release has effect only if approved by the court — which is no ‘mere formality’ or to be taken lightly135 — and to the extent that the approval is not revoked.136 Proceedings for court approval may be commenced before or after the date of the death of the person whose estate may be the subject of the order.137 The court may approve a release in relation to the whole or any part of the estate.138 In determining an application for approval of a release, the court must take into account all the circumstances of the case, including whether:139 • it is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release; • it is or was, at that time, prudent140 for the releasing party to make the release;

of any such agreement are or were, at that time, fair and • the provisions 141 reasonable; and • the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice.142 Also potentially relevant is whether the agreement was the product of a formal mediation, and the resultant consent orders produced to the court faithfully reflect the terms of the agreement.143 The court may revoke an approval if satisfied that it was obtained by fraud, or that the release itself was obtained by fraud or undue influence.144 The court may also revoke an approval, either [page 698] wholly or partially in respect of specified property, if satisfied that all persons who would be, in the court’s opinion, sufficiently affected by the revocation consent to it.145 20.36 In recommending equivalent provision for model national legislation, the National Committee for Uniform Succession Laws, though ‘conscious of the possibility of undue pressure being placed upon some people to contract out of future entitlements under family provision legislation’, considered that this possibility was outweighed by the ‘significant advantages’ of such a procedure, particularly the advantage to parties in settling family affairs via a straightforward and inexpensive procedure.146 The same call has issued more recently from the Victorian Law Reform Commission.147

Mediation and consent orders 20.37 Also unique to the New South Wales legislation, aimed at encouraging the settlement of disputes concerning a deceased estate, is a requirement that the court, unless it for special reasons otherwise orders, refer an application for a family provision order for mediation before it considers the application.148 It adds that the court may make a family provision order in terms of a written agreement (a ‘consent order’) that is produced to the court

by the affected parties in relation to an application after mediation, or on the advice of a legal practitioner, and indicates the parties’ consent to the making of the order in those terms.149 Reflecting what had been a developing practice,150 the Supreme Court of Victoria has now issued a Practice Note whereby, ‘[u]nless otherwise ordered, all family provision applications will be referred to mediation’, and that if the value of the estate is less than $500,000, the court ‘may make available an associate judge or judicial registrar to undertake a judicial mediation at no cost to the parties’.151 In any case, general provision in court or civil procedure legislation empowering courts to refer disputes to mediation152 can clearly be used in family provision litigation elsewhere.

Orders after Distribution 20.38 The family provision statutes in the territories, New South Wales, South Australia and Western Australia intrude into the indefeasibility of distributions to family provision orders.

The territories and South Australia 20.39 In the territories the statutes provide that, notwithstanding a distribution of property forming part of a deceased estate made by its administrator,153 the court may, via a family [page 699] provision order, direct that provision be made for a person out of that property. However, they limit this course of action to other than where:154 • the distribution was properly made for the purpose of providing for the proper maintenance, education or advancement in life of a person who was totally or partially dependent on the deceased immediately before the latter’s death; or • the distribution was made after 12 months of the date when

administration was granted and before the administrator had notice of the application for the order, and (in the Australian Capital Territory) the property so distributed has vested in possession of any person. In South Australia the statutory protection afforded to administrators155 who, without notice of a claim for provision, make distributions before expiry of the limitation period156 is expressed not to prevent the court from ordering that any provision be made out of (part of) the estate after it has been distributed.157 This, it is said, contemplates that the court can still order provision out of the estate once it has been distributed. There is no power in the court to set aside the distributions; rather, if an order is made, the part of the estate affected by the order is to be held subject to the provisions of the order,158 so that the beneficiary will hold the asset for the party benefiting from the order.159

New South Wales 20.40 The Succession Act 2006 (NSW) states that a family provision order may not be made in relation to property of the estate that has been properly distributed by the legal representative of the estate unless it is designated as ‘notional estate’ of the deceased person by an order under Pt 3.3 of the Act.160 As the latter, in addition to prescribing a detailed regime, also provides for the designation of property as notional estate that is not part of the estate of a deceased person, it is discussed separately at the conclusion of this chapter.161

Western Australia 20.41 In Western Australia, if (part of) the estate of the deceased has been distributed among the persons entitled under the will or intestacy, the court may, in lieu of an order under the family provision legislation, make an order under s 65 of the Trustees Act 1962 (WA).162 The latter empowers the court to order a person to whom assets have been distributed to pay to the applicant a sum not exceeding the value of those assets. Where the court makes such an order under s 65, it has the same powers in respect of that order as it has in respect of an order made under the family provision legislation.163

20.42 However, the power under s 65 is constrained. In determining whether, and in what way, provision ought to be made by an order, the court must have regard to the provisions of s 65(8),164 which denies relief, wholly or in part, if the person from whom relief is sought [page 700] received the assets ‘in good faith’165 and has ‘so altered his position in reliance on his having an indefeasible interest in the assets or interest’ that, in the court’s opinion, having regard to possible implications in respect of other persons, ‘it is inequitable to grant relief or to grant relief in full’. This factors into the court’s discretion prejudice a beneficiary may suffer by being deprived of his or her distribution. To this end, it has been judicially observed that ‘it is difficult to envisage that an order which might eventually be made … would have an unfair or inequitable result upon any of the beneficiaries who had received such a distribution’.166 But the statute does not outright deny the court the jurisdiction to make orders affecting the beneficiary. Also, s 65(5)(a) of the Trustees Act 1962 (WA) prohibits the court making an order under s 65 ‘where the claim is an application for an order under the Family Provision Act 1972, unless that application is made within the time permitted by that Act’. Although s 65(5) contains a proviso — it reads ‘notwithstanding the foregoing … the order may be made, with the special leave of the court, on application made within the time within which the applicant could have enforced his claim, in respect of the estate, with special leave of the court, if the assets had not been distributed’ — this applies only to s 65(5)(b), which does not target family provision claims.167 It follows that if an application is made under the Family Provision Act, and the estate has been wholly or partially distributed, the court can make an order under s 65 only if the application is ‘made within the time permitted by [the Family Provision] Act’. This in turn has been interpreted as not confined to the limitation period prescribed by the latter Act,168 but also to encompass the time as extended by the court under that Act.169 However, if an application is not made within time, or the court does not extend time, s 65(5) supplies a complete defence to the claim.170

20.43 However, s 65 has no application where, for the purpose of providing those things immediately171 necessary for the maintenance, support or education of any person who was totally or partially dependent172 on the deceased at the time of his or her death, an administrator173 distributes the whole or any part of the estate to any such person. In this event, no order made under s 65 can disturb that distribution, whether or not the administrator had notice at the time of any application, or intention to make an application, that would affect the estate.174

Quantifying Amount of Provision 20.44 As the amount of provision to be ordered, like the decision whether or not to order provision, is one based in judicial discretion, exercised in the circumstances of the particular [page 701] applicant, courts have eschewed notions of exactness in calculating the relevant amount.175 Accordingly, there is no single provision that can be said, conclusively, to have been that which a wise and just testator would have made. There is instead a range of appropriate provisions, recognising that ‘[m]inds may legitimately differ as to the provision that should be made’.176 It follows, as White J explained in Friend v Brien, that:177 … where there is a range in which views may legitimately differ as to what provision is adequate for proper maintenance and advancement in life and where the deceased has apparently conscientiously made a judgment about how his estate should be disposed of that falls within such a range, and where the circumstances have not materially changed between the time of the making of the will and the court’s considering the position, a court should not substitute its judgment for that of the testator to determine that the provision made was inadequate.

This in turn explains judicial remarks that, in determining what is adequate and proper, the court’s approach to quantum of provision is ‘careful and conservative’.178 It also explains judicial admonitions favouring an exercise of judgment rather than ‘some mathematical or scientific calculation’,179 and emphasising that the ‘highly fact-specific inquiry’ involved renders quantums

awarded in other cases of limited utility.180 20.45 So while sometimes analogised to the range of awards for pain and suffering in personal injury litigation, the widely varying facts in family provision applications make it harder to be definite about a ‘range’ than in the case of personal injury litigation.181 And as the aims of these two types of award do not equate — in the family provision context the court looks at the proper provision that ought to have been made having regard to community expectations, as opposed to what would represent compensation for losses sustained as a result of negligence or the like — the method for calculating damages is not necessarily that to use in arriving at an award of provision. As explained by Campbell JA in Tchadovitch v Tchadovitch:182 There are insurmountable difficulties in carrying out an accurate calculation of the amount that will make proper provision for certain needs of a person for the rest of their life. As well as the unpredictability of future inflation rates and taxation regimes that Todorovic [v Waller (1981) 150 CLR 402, the leading case on the manner in which courts should approach the everyday task of assessing damages for personal injuries] allows for in an extremely broad-brush way, Family Provision Act claims concerning a claimant who is to be provided for for the rest of his or her life have an additional complexity arising from the uncertainty of the length of that person’s life. That dimension of uncertainty does not appear with quite the same acuteness in calculation of damages for personal injury, because the calculation for loss of earning capacity is made for a determinate period of time, up to the ordinary date of retirement of the plaintiff in question, with the prospect of earlier death being allowed for as one matter that goes into the deduction that is made for contingencies of life. In an estate that is large enough to satisfy all the claims upon it, it would be a significant detraction from the adequacy of the provision made for a widow that it left her at risk of not being properly provided for if she were to live for longer than the statistical average for a woman of her age.

[page 702] It follows that discount tables applied in assessing the quantum of damages for loss of earning capacity and the future costs of goods and services a successful plaintiff will need do not, as a matter of course, translate into quantifying a family provision order. Nor is there an inflexible rule relating to any percentage adopted in discounting in this context.183 Just as the nature and quantum of the provision involves an exercise of judicial discretion, the choice of the appropriate methodology to use in arriving at the quantum is a matter of judicial discretion, likewise exercised in the light of the facts,

evidence and submissions in the particular case.184 20.46 The amounts for which other claimants agreed with the defendant to compromise their respective claims do not, it has been said, ‘have any bearing upon the amount which, after a contested hearing, [the plaintiff] has established an entitlement to receive from the estate’.185 The court must, after all, determine whether a particular applicant has been left without adequate provision, not what other eligible persons may accept by way of compromise.186 It may assume relevance, however, to the question of whether the estate can accommodate the order for provision.187 20.47 The foregoing must, in Victoria, be read subject to statutory amendments with effect from 1 January 2015.188 In determining the amount of provision to be made by a family provision order, if any, these require the court to take into account:189 • the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person; • the degree to which the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the eligible person; • in the case of a child (or stepchild) of the deceased (or a person who for a substantial period during the deceased’s life believed that the deceased was his or her parent and was so treated by the deceased) other than a minor, full-time student aged under 25 or one subject to a disability — the degree to which the person is not capable, by reasonable means, of providing adequately for his or her proper maintenance and support; and • in the case of a registered caring partner190 of the deceased, a grandchild of the deceased, a spouse191 or domestic partner192 of a child of the deceased if the latter dies within 1 year of [page 703] the deceased’s death, or a member of the household of which the deceased was a member at the time of the deceased’s death (or who had been in the past and would have been likely in the near future, had the deceased not died, to again become such a member) — the degree to which the person was wholly or partly dependent on the deceased for his or her proper maintenance and

support at the time of the deceased’s death.

The first two dot points above add little in substance to what the curial approach would otherwise involve. It appears that the third dot point is designed to constrain the quantum of provision that may be made for adult children who suffer no disability, and in important respects dovetails into the policy espoused in some of the cases dealing with adult children’s claims to provision.193 The final dot point likewise seeks to function as a quantum constraint, albeit targeting classes of person who would not ordinarily be expected to come within a testator’s bounty except where the requisite dependence (and thus closeness) is evident. The legislation adds that the amount of provision must not exceed that necessary for the eligible person’s proper maintenance and support and, in the case of a person referred to in the final dot point above, must be proportionate to his or her degree of dependency on the deceased for proper maintenance and support at the time of the deceased’s death.194

Variation, Suspension and Discharge of Family Provision Orders Scope of power 20.48 As noted elsewhere,195 the policy underscoring the time limitations placed on applications for provision is the public interest in the prompt administration of estates. That an order for provision finally determines the entitlements under the estate is consistent with this policy. But just as the family provision statutes envisage extensions of time to foster justice in a given case,196 they also grant the court, again to meet the demands of justice in each case, the power to vary, suspend or discharge (or revoke) an order for provision. The statutory schemas vary between jurisdictions, but can be grouped other than in New South Wales and Queensland. Only the Queensland legislation expressly limits the court’s power to varying or revoking orders in the form of periodical payments to, or investments for the benefit of, the original applicant for provision. This stems from the evident purpose of the Queensland provision to address changes in

circumstances in that person’s financial position. Although the statutes elsewhere contain no equivalent limitation, it would be unfair, in the absence of fraud or misrepresentation, for a person who has received a capital sum or property outright pursuant to an order for provision to then be deprived of that sum or property. It stands to reason, therefore, that the jurisdiction elsewhere should, for practical purposes, also be so limited. In any case, the legislation in the territories and South Australia makes explicit provision for the court to [page 704] vary a family provision order for periodical payments or the investment of a lump sum for the benefit of a person.197 Like its counterparts in New South Wales and Western Australia, the Queensland section explicitly refers to circumstances where an order for increased provision may be made. In other jurisdictions it can be surmised that the lack of explicit reference to increased provision arguably restricts the jurisdiction to the reduction (or cancellation) of provision. 20.49 As a more general observation, the legislation does not (other than in a limited way in New South Wales and Queensland) specify the circumstances in which application for variation or discharge of a family provision order may be made. And the absence of case authority compounds the point. However, it appears that, in line with the apparent focus on periodical payments and income from investments, the circumstances having the greatest scope for an application to reduce, suspend or discharge an order for provision are those where the existing provision, due to a change in the circumstances of its recipient, now exceeds what is adequate for his or her proper maintenance.

Jurisdictions other than New South Wales and Queensland 20.50 In each case, the relevant power is premised in the first instance on an application being made to the court. The legislation in the territories,

Tasmania, Victoria and Western Australia limits standing to a person either to whom the administration of the estate has been granted or who is beneficially entitled to, or has an interest in, a part of the estate.198 In Western Australia, standing extends also to a person for whom provision may be made. Notice of the application must be served on any person taking a benefit under the order challenged.199 Beyond this, detail variations exist between jurisdictions. In the territories the court may, in its discretion and having regard to all the circumstances of the case, vary a previous order by reducing the amount of the provision made under that order, suspend a previous order for a specified period, or discharge a previous order.200 The South Australian and Victorian sections follow the same basic schema, and entitle the court at any time, and from time to time, to rescind or alter any order.201 Similar provision is made in Tasmania, but an alteration cannot disturb a distribution of any part of the estate that was lawfully made before the application for the alteration was made.202

Provisions peculiar to Western Australia 20.51 In Western Australia there is provision for the court, ‘having regard to the hardship that would be caused to any person taking benefit under the order and to all the circumstances [page 705] of the case’, to rescind or suspend any order for provision, or to reduce the provision made under it.203 A person in whose favour provision has been ordered may, under a different section, apply for increased provision on the ground that since the date of that order circumstances have so changed that undue hardship will be caused unless increased provision is made. The court may accede to this application if it considers that ‘it would not be inequitable to grant relief having regard to all possible implications in respect to other persons’.204 As from 16 January 2013,205 the court may also make a further order for provision in the event that, at the time of the original order, the evidence

about the nature and extent of the estate did not reveal the existence of certain property, the value of which would have ‘materially affected’ the provision that the court ordered, or could have ordered, in favour of the applicant.206 This is premised on an application being made within 6 months of the applicant becoming aware of the existence of the undisclosed property, or the court otherwise being satisfied that the justice of the case requires a grant of leave to file out of time.207

New South Wales 20.52 In New South Wales statute imposes no restrictions vis-à-vis standing to apply to vary or revoke a family provision order. It empowers the court to vary or revoke such an order so as to allow provision to be made in favour of another eligible person wholly or partly from all or any property affected by the order,208 but premises this on that person showing ‘sufficient cause for not having applied for a family provision order before the order sought to be varied or revoked was made’.209 A separate section envisages that a person who has been awarded provision out of an estate may make a subsequent application for further provision out of the same estate,210 but limits the court’s jurisdiction to make such an order to where: • a substantial detrimental change in the applicant’s circumstances has occurred since a family provision order was last made in his or her favour; or • at the time of the previous order: – the evidence about the nature and extent of the deceased’s estate did not reveal the existence of certain property (‘the undisclosed property’); – the court would have considered the deceased’s estate to be substantially greater in value had the evidence revealed the existence of the undisclosed property; and – the court would not have made the previous order had the evidence revealed the existence of the undisclosed property. In each case, the reference to the deceased’s estate is inclusive of any property that was, or could have been, designated as ‘notional estate’ of the

deceased.211 The phrase ‘substantial detrimental change’ came from the former New South Wales legislation, as regards which the term ‘substantial’ had been defined as ‘something considerable or large’ and more than ‘not [page 706] illusory’, albeit heavily influenced by the circumstances of each case.212 The concern was that ‘in many cases income provisions become inadequate’, and so machinery was needed by which an order for continuing provision could be reviewed from time to time.213 Accordingly, the jurisdiction targeted where the previous order for provision was one for continuing provision, where:214 … whether by reason of inflation, or some accident, or illness, or other cause, the income derived from that order, or the income derived from that order coupled with such income as the eligible person is then capable of earning, is inadequate to provide for the maintenance, education or advancement in life of the eligible person.

The equivalence in terminology, in this regard, between the former and current legislation suggests that the same remains the case. But the former legislation contained no equivalent to the second dot point above, and so did not envisage further provision arising out of property undisclosed at the time of the first hearing. This instead derived from a recommendation of the National Committee for Uniform Succession Laws.215 Each of these dot points represents a balance between ‘attempting to provide redress … in exceptional cases’ and the ‘risk of encouraging unmeritorious litigation, the effect of which can be to erode the assets of an estate’.216

Queensland 20.53 Like its New South Wales counterpart, the Queensland legislation contains no standing restrictions. It states that, where the court has ordered a periodical payment, or has ordered any part of an estate or a lump sum to be invested, for the benefit of any person, it may, on the application of any person, inquire whether provision made by the order for that person remains adequate.217 For this purpose, the court will consider whether that person has become possessed of or entitled to other provision for his or her proper

maintenance or support. As a result of this inquiry, the court may increase or reduce the provision originally made, or discharge, vary or suspend the order, or make such other order as is just in the circumstances. However, it cannot increase the provision unless it considers the income or capital of the estate to be sufficient for this purpose.218 Where the court increases the provision, but at a later date finds that the estate’s income or capital is insufficient for this purpose, it may reduce or suspend any increase, discharge, vary or suspend the original order, or make such other order as is just in the circumstances.219 [page 707]

Appeal Against Family Provision Order Standard of review 20.54 An appeal against the trial judge’s determination can be made on one or more of the following grounds: it may challenge the finding that the applicant was or was not an eligible person; it may challenge the finding as to whether or not the applicant had been left adequate provision for his or her proper maintenance; and/or it may challenge the quantum of provision ordered. On the second and third of those grounds — namely the ‘jurisdictional’ and ‘discretionary’ stages respectively220 — an appeal is governed by the principle in House v The King, which states:221 It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

Though being the conventional statement of the principles for appellate

review of discretionary decisions, it has been held also to apply to the ‘jurisdictional’ stage of a family provision matter,222 which ‘is a matter of whether an evaluative standard has been met, rather than truly a matter of discretion’.223 The reasoning for this appears in the following remarks of Kirby P in Golosky v Golosky:224 Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged.

20.55 But where the appeal is solely on the amount and type of award made — that is, a true discretionary decision — an even heavier onus lies on the appellant.225 An appeal that is nothing more than an invitation for the appellate court to substitute its own discretion for that of the trial judge is bound to fail. There is also limited scope for a ground of appeal that alleges that the trial judge failed to give ‘proper weight’ to a consideration that he or she has taken into account. Such a ground of appeal would provide a separate basis for reversing the judge’s decision only, it has been said, if the outcome is ‘unreasonable or plainly unjust’.226 [page 708] 20.56 Ultimately, the House v The King standard recognises that the very nature of a discretionary decision opens the door to a range of possible decisions legitimately open to the decision-maker. Provided the judge acts on correct principles, is not guided or affected by extraneous or irrelevant matters, does not mistake the facts, and takes into account the material considerations, within that range the weight he or she gives to the various matters entering into the decision, and the quantum of the award made as a result, is a matter for the judge, not for the appellate court, unless the outcome is unreasonable or plainly unjust.227 For instance, an award within that range is unlikely to be upset merely because the judge made some factual errors.228

Costs on appeal

20.57 Just as the costs of a successful applicant (and sometimes the unsuccessful defenders of the will) are usually ordered to be paid out of the estate,229 the same approach is ordinarily applied on a successful appeal by the applicant.230 But if an applicant’s appeal is unsuccessful, the grounds for him or her to receive costs of the appeal out of the estate are less weighty than at first instance. Thomas J explained the point as follows in Re McIntyre:231 It is … essential that a distinction should be maintained in the approach to costs at first instance and on appeal. Applicants and their advisors should not think that they can bring appeals confident in the knowledge that the estate will in all probability be obliged to pay for the exercise. What I have called the indulgent attitude of judges of first instance to unsuccessful applicants has no place in the appeal process. A litigant has a right under the rules of court to test a judgment by bringing an appeal, but he has no similar right to do so at the expense of the other party or estate.

Although there are instances where judges have allowed an unsuccessful applicant’s costs out of the estate, almost invariably there was something unusual in the circumstances of the case that justified this departure from the usual rule.232 More commonly, costs follow the event,233 and this is so especially if the points raised on appeal fail to cast any doubt on the decision of the trial judge and the estate is not large.234 In these circumstances, the court reasons that the [page 709] applicant has not acted reasonably on pursuing the appeal, and so should be unable to mulct the estate in costs. Where the appeal court finds that the appellant acted reasonably in bringing the appeal on one ground, even if the appeal did not ultimately succeed on that ground, it may allow the appellant costs of that ground but not those on the grounds it considers to have been unreasonably pursued.235 Although the case law targets appeals by the original applicants for provision, the same principles as to costs should apply in the unusual event that the defendant-executor is the appellant.236

Notional Estate Orders — New South Wales

Overview 20.58 The Succession Act 2006 (NSW) states that a family provision order may not be made in relation to property of the estate that has been properly distributed by the legal representative of the estate unless it is designated as notional estate of the deceased person by an order under Pt 3.3 of the Act.237 The latter also provides for the designation of property as notional estate that is not part of the estate of a deceased person. It follows that, if the estate has been distributed, the success of the applicant’s claim for provision rests on the court making an order designating certain property as notional estate. The concept of a ‘notional estate’ has been concisely described as ‘property which would have become part of the deceased’s estate, had it not been dealt with, or had it been dealt with, by the deceased in a particular way and in particular circumstances, prior to his or her death’.238 ‘Notional estate orders’ are accordingly ‘intended to make available for family provision orders assets that are no longer part of the estate of a deceased person because they have been distributed either before or after the deceased’s death’.239 Part 3.3 applies where, as a result of a ‘relevant property transaction’,240 property is not included in the estate or where property has been distributed from the estate. It enables the court in limited circumstances to make an order designating property that is not included in the estate, or has been distributed, as ‘notional estate’ of the deceased person for the purpose of [page 710] making a family provision order in respect of the estate or, if an order for provision is made, for ordering that costs in the proceedings be paid from the notional estate.241 A person’s rights are extinguished to the extent that they are affected by a notional estate order.242 20.59 The main purpose of the ‘notional estate’ provisions has been identified as to deter persons from avoiding their family provision responsibilities by divesting themselves of property during their lifetime, or by failing to take steps that would have caused property to accrue to their estates.243 That these provisions appear to work well — having been ‘designed

to prevent avoidance while having the minimum possible collateral effects, and being fair to all concerned’244 — led the National Committee for Uniform Succession Laws to recommend inclusion of equivalent provisions in model national legislation.245 They have also been recommended more recently in Victoria246 and called for by members of the judiciary elsewhere.247

‘Relevant property transactions’ Meaning of ‘relevant property transaction’ 20.60 A person enters into a ‘relevant property transaction’ if he or she does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property248 being held by another person (whether or not as trustee) or subject to a trust, if full valuable consideration249 is not given250 to the person for doing or not doing the act.251 As the foregoing [page 711] is not confined to positive acts, the deceased’s omission to do an act may mean that he or she is deemed to have entered into a relevant property transaction.252 Nor is it confined to acts or omissions that are the operative cause of property becoming held by the intended disponee. To do so would overlook the phrases ‘directly or indirectly’, ‘that results in’ and ‘immediately or some later time’, as well as the beneficial purpose for which the provisions were enacted.253 The fact that a person has entered into a relevant property transaction affecting property does not prevent the person from being taken to have entered into another relevant property transaction if he or she subsequently does, or does not do, an act affecting the property the subject of the first transaction.254 However, the making of a will by a person, or the omission to do so, does not constitute an act or omission for this purpose except in so far as it constitutes a failure to exercise a power of appointment or disposition in relation to property that is not in the person’s estate.255

Via the ‘relevant property transaction’ definition, it has been judicially observed that ‘the legislature has cast the net very wide, in pursuit of its goal of providing adequate provision in favour of eligible persons’.256 As beneficial legislation, a liberal approach to construction is justified, notwithstanding the obvious impact of a designating order upon existing property rights.257 Accordingly, to the extent that it is open on a legitimate broad construction of the statutory language, the notional property provisions extend the powers of the court ‘to the full range of benefits and advantages controlled by testators’.258

Examples of ‘relevant property transactions’ 20.61 The legislation, in s 76(2), sets out circumstances that, subject to full valuable consideration not being given, constitute the basis of a ‘relevant property transaction’,259 namely where: • a person is entitled to exercise a power260 to appoint or dispose of property that is not in the person’s estate but does not exercise that power before ceasing (because of death or the occurrence of any other event) to be entitled to do so, with the result261 that the property becomes held by another person262 or subject to a trust, or another person (immediately or at some later time) becomes or continues to be entitled to exercise the power (s 76(2)(a)); [page 712] • a person who holds an interest in property as a joint tenant does not sever that interest before ceasing (because of death or the occurrence of any other event) to be entitled to do so, with the result that, on the person’s death, the property becomes, by operation of the right of survivorship, held by another person or subject to a trust (s 76(2)(b));263 • a person who holds an interest in property, in which another interest is held by another person or is subject to a trust, is entitled to exercise a power to extinguish the other interest in the property and the power is not exercised before the person ceases (because of death or the occurrence of

any other event) to be so entitled, with the result that the other interest in the property continues to be so held or subject to the trust (s 76(2)(c)); • a person is entitled — in relation to a life assurance policy on the person’s life under which money is payable on the person’s death or if some other event occurs to a person other than the legal representative of the person’s estate — to exercise a power to: – substitute a person or a trust for the person to whom, or trust subject to which, money is payable under the policy; or – surrender or otherwise deal with the policy; but does not exercise that power before ceasing (because of death or the occurrence of any other event) to be entitled to do so (s 76(2)(d)); • a person who is a member of, or a participant in, a body, association, scheme, fund or plan, dies and property (immediately or at a later time) becomes held by another person or subject to a trust because of the person’s membership or participation and the person’s death or the occurrence of any other event (s 76(2)(e)); • a person enters into a contract disposing of property out of his or her estate, whether or not it is to take effect before, on or after the person’s death or under the person’s will (s 76(2)(f)). However, the foregoing is not exhaustive, as it is expressed not to prevent any other act or omission from constituting the basis of a relevant property transaction.264 20.62 As the predecessor to s 76(2)(a)265 saw greatest exposure in the case law, further comment is necessary. The reference to ‘a power to … dispose of property’ has been interpreted not as a technical term of law, but as something more than a traditional power of appointment and as capable of existing where a person had ‘capacity to control’.266 This means legal capacity to control, not merely de facto control without legal control.267 But with legal capacity to control there is entitlement; there is no need, in this event, to also establish immediate enjoyment.268 A capacity to control constrained by fiduciary duties is not sufficient for this purpose. For instance, a director’s power, with other members of the board, to dispose of [page 713]

property of a company is not ‘a power to appoint, or dispose of, property’ within s 76(2)(a) ‘because it is constrained by fiduciary obligations’.269 Nor has the term ‘held’ in s 76(2)(a) been construed as a technical word of fixed legal meaning. Instead, it has been said that, if an increase in value can accrue to some other person, that person thereafter holds it, as no one else can be holding it.270

When relevant property transactions take effect 20.63 A relevant property transaction is taken to have effect when the property concerned becomes held by another person or subject to a trust, or otherwise as follows:271 • A relevant property transaction consisting of circumstances described in s 76(2)(a), (c) or (d) is taken to have been entered into immediately before, and to take effect on, the person’s death or the occurrence of the other event resulting in the person no longer being entitled to exercise the relevant power. • A relevant property transaction consisting of circumstances described in s 76(2)(b) or (e) is taken to have been entered into immediately before, and to take effect on, the person’s death or the occurrence of the other event referred to in those paragraphs. • A relevant property transaction that involves any kind of contract for which valuable consideration, though not full valuable consideration, is given for the person to enter into the transaction is taken to be entered into and take effect when the contract is entered into. The third dot point, in merging the date of entry into the contract and the date of taking effect of that contract as the time ‘when the contract is entered into’, aims to ‘simplify the ascertaining of the date that a contract takes effect in a common situation where a contract for valuable consideration involves a later conveyance or conveyances of property, thereby setting up potentially competing dates’.272 It underscores the importance of not interfering with reasonable expectations in relation to property,273 moreover, given that the execution of a valid contract conveying an interest in property will likely foster in the parties reasonable expectations as to how that interest will be conveyed.274

When notional estate orders may be made 20.64 The legislation identifies four instances where property may be designated as notional estate, and prescribes matters of which the court must be satisfied,275 and matters that the court must consider,276 before making any such order. The four instances appear immediately below.

Where property of estate distributed: s 79 20.65 The court may, on application or on its own motion, make a notional estate order designating property as notional estate of a deceased person if satisfied that on, or as a result of, a distribution of that person’s estate, property (whether or not the subject of the distribution) [page 714] became held by a person (whether or not as trustee) or subject to a trust.277 Campbell J in Richardson v Rearden explained the upshot of this as follows:278 That provision means that if someone has received a benefit from a deceased estate, it is possible to designate as notional estate an asset of that person, even if that asset is not something into which it would be possible to trace any specific asset of the testator. That ordinarily gives the court a fairly wide power to do practical justice, and make sure that the assets of a deceased estate end up, so far as at least their value is concerned, in the hands that the court decides are the appropriate ones to enable the deceased to fulfil his or her obligations.

Yet in Richardson even that broad power proved inadequate to meet the situation of the applicant, as there was simply no asset that could be identified, of any person who received benefits from the estate of the deceased, that could be designated as notional property.

Where estate affected by relevant property transaction: s 80 20.66 The court may, on application or on its own motion, make a notional estate order designating property as notional estate of a deceased person if satisfied that the person entered into a relevant property transaction before his or her death and that the transaction:279 • if taking effect within 3 years before the deceased’s death — was entered

into with the intention280 (in whole or in part) of denying or limiting provision being made out of the estate for the maintenance, education or advancement in life of any person eligible to apply for provision; • if taking effect within 1 year before the deceased’s death — was entered into when the deceased had a moral obligation281 to make adequate provision (by will or otherwise) for the proper maintenance, education or advancement in life of any person eligible to apply for provision that was substantially282 greater than any moral obligation of the deceased to enter into the transaction (note that, accordingly, the deceased’s intention is irrelevant in making this assessment); or • took effect or is to take effect on or after the deceased’s death. [page 715] Property may be designated as notional estate in this context if it is held by (or on trust for) a person by whom property was or became held283 as the result of a relevant property transaction, or the object of a trust for which property was or became held on trust as the result of a relevant property transaction, whether or not the property was the subject of the relevant property transaction.284

Where estate affected by subsequent relevant property transaction: s 81 20.67 The court may, on application or on its own motion, make a notional estate order designating property as notional estate of a deceased person if the court is satisfied that:285 • it has power to make a notional estate order designating property held by (or on trust for) a person (‘the transferee’) as notional estate of the deceased person, or immediately before the date of the death of a person (‘the deceased transferee’)286 it had power to make a notional estate order designating property held by (or on trust for) the deceased transferee as notional estate of the deceased person; • since the relevant property transaction or distribution that gave rise to the

power to make the order was entered into or made, the (deceased) transferee entered into a relevant property transaction; and • there are special circumstances that warrant the making of the order. The impact upon the transferee — a third party — is what calls for the requirement of special circumstances. The section states that property may be designated as notional estate under the foregoing if it is property that is held by (or on trust for) a person by whom property became held as the result of the relevant property transaction entered into by the (deceased) transferee, or the object of a trust for which property became held on trust as the result of the relevant property transaction entered into by the (deceased) transferee, whether or not the property was the subject of the relevant property transaction.287

Where property of deceased transferee’s estate held by legal representative or distributed: s 82 20.68 The court may, on application or on its own motion, make a notional estate order designating property as notional estate of a deceased person if the court is satisfied that:288 • immediately before the date of the death of a person (‘the deceased transferee’), it had power to make a notional estate order designating property held by (or on trust for) the deceased transferee as notional estate of the deceased person; • the power did not arise because property became held by the deceased transferee as trustee only; and • for property referred to in the second dot point immediately below — there are special circumstances that warrant the making of the order. [page 716] 20.69 The following property may be designated as notional estate under the above, whether or not it was the property the subject of the relevant property transaction or distribution from which the court’s power to make such an order arose:289

if administration has been granted290 in respect of the estate of the • deceased transferee — property that is held by the legal representative of the estate of the deceased transferee in that capacity; • if all or part of the estate of the deceased transferee has been distributed — property that is held by, or on trust for: – a person by whom property became held (whether or not as trustee) as the result of the distribution of the deceased transferee’s estate; or – the object of a trust for which property became held on trust as the result of the distribution of the deceased transferee’s estate. The foregoing aims to reverse the result in Prince v Argue,291 decided under the former New South Wales legislation. The proceedings involved claims on the estates of two deceased persons, who had been husband and wife. The husband’s interest in a jointly owned property passed by right of survivorship to the wife, and it was claimed that there was a ‘prescribed transaction’ (the term equivalent to the current ‘relevant property transaction’) as a result of the husband’s failure to sever the joint tenancy. The ‘disponee’ in relation to that transaction was the wife, who died before the proceedings commenced. Macready AJ dismissed the claim, holding that a designating order could not be made where the relevant property to be designated as notional estate was no longer held by or on trust by the disponee (as was the case, as the wife-disponee had died).

Matters required before order can be made 20.70 The court cannot, merely because a relevant property transaction has been entered into, make an order under ss 80, 81 or 82 unless it is satisfied that the transaction or the holding of property resulting from it:292 • directly or indirectly disadvantaged the estate of the principal party to the transaction,293 a person entitled to apply for provision from the estate or, if the deceased person was not the principal party to the transaction, the deceased person (whether before, on or after death); • involved the exercise by any person of a right, a discretion or a power of appointment, disposition, nomination or direction that, if not exercised, could have resulted in a benefit to: – the estate of the principal party or a person eligible to apply for

provision; or – if the deceased person was not the principal party to the transaction, the deceased person (whether before, on or after death); • involved the exercise by any person of a right, discretion or power of appointment, disposition, nomination or direction that could, when the relevant property transaction was entered into or at a later time, have been exercised so as to result in a benefit to the estate or persons listed in the first dot point; or • involved an omission to exercise a right, discretion or power of appointment, disposition, nomination or direction that could, when the relevant property transaction was entered [page 717] into or at a later time, have been exercised by any person so as to result in a benefit to the estate or persons listed in the first dot point. Also, the court cannot make a notional estate order unless it is satisfied that either the deceased left no estate, the estate is insufficient for the making of the family provision order (or costs order) that the court considers should be made,294 or provision should not be made wholly out of the estate because there are others entitled to apply for provision or because there are special circumstances.295

Matters to be considered by court before making notional estate order 20.71 The court cannot make a notional estate order unless it has considered the importance of not interfering with reasonable expectations in relation to property, the substantial justice and merits involved,296 and any other matter it considers relevant in the circumstances.297 Most of the cases here focus on ‘reasonable expectations in relation to property’. The reasonable expectations of the defendant (as beneficiary of the deceased’s will) are usually the main inquiry, but, as the legislation does not indicate the person(s) by whom those reasonable expectations are held, it is legitimate to consider the

expectations of the deceased and, in an appropriate case, the plaintiff.298 20.72 A common scenario involves expectations in a joint tenancy. It has been said that ‘the fact of a joint tenancy may found a reasonable expectation that the property so held would be enjoyed solely and absolutely by the survivor upon the death of the other joint tenant(s)’,299 especially at a time when the survivor is elderly.300 But this is not invariably the case, as Ward J’s decision in Colantuono v Colantuono301 illustrates. Although admitting the force of the submission that an order necessarily requiring the sale of the former matrimonial home could interfere with the reasonable expectations of a surviving spouse who had for a number of years [page 718] held his interest in the matrimonial home as joint tenant with his wife (and thus might have expected to be able to remain there after her death), her Honour remarked that this needed to be balanced against three other factors. First, during the course of the marriage husband and wife worked together for the purpose of building up property assets for the benefit of their family and with the expectation that each of their children would be assisted to establish their own separate family assets. Second, the provision of finance to a daughter on two occasions reflected such an expectation. Third, the surviving spouse had not inconsiderable assets. Ward J, accordingly, found no reason why an order requiring the surviving spouse to divest himself of some of his assets — to the extent necessary to enable proper provision to be made for his sons — would be unreasonable.302 To achieve this result, her Honour ordered that the interest of the deceased wife in jointly held property immediately prior to her death should be designated notional estate. 20.73 Other scenarios amenable to raising reasonable expectations in relation to property include where a legatee who receives a property may have spent money or worked on the property, where there is a promise in relation to the property and the acting by an intended legatee on the fact of that promise,303 or a person has given up something of an equivalent value in order to obtain the property.304 But by itself custom is not ordinarily sufficient to

raise a reasonable expectation, at least where that custom bears no relationship to the relevant law. For instance, in Chan v Tsui305 Macready M ruled that Chinese custom, pursuant to which title to real estate passed to the eldest son, gave no grounds in the law for any reasonable expectation on the eldest son’s part that he should have the family home, especially as the family were going their own way and the eldest son gave no undertaking to provide for his sisters in the future.

Determination of property to be subject to notional estate order 20.74 In determining what property should be designated as notional estate, the court must have regard to:306 • the value and nature of any property: – the subject of a relevant property transaction; – the subject of a distribution from the estates of the deceased person or a deceased transferee; or – held by the legal representative of the estate of a deceased transferee in his or her capacity as legal representative of that estate; • the value and nature of any consideration given in a relevant property transaction; • any changes in the value of property of the same nature as the property referred to in the first dot point, or the consideration referred to in the second dot point, since the relevant property transaction was entered into, the distribution was made, the property became held by the legal representative of the estate of the deceased transferee, or the consideration was given; • whether property of the same nature as the property referred to in the first dot point, or the consideration referred to in the second dot point, could have been used to obtain income since the events mentioned in the third dot point; • any other matter it considers relevant in the circumstances. [page 719]

20.75 Also, the court must not designate as notional estate property exceeding that necessary, in its opinion, to allow the provision that should be made or, if the court makes an order that costs be paid from the notional estate, to allow costs to be paid as ordered, or both.307 If, as a result of a relevant property transaction or of a distribution from the estates of a deceased person or deceased transferee, property becomes held by a person as a trustee only, the court cannot designate as notional estate any property held by the person308 other than the property so held as a trustee as a consequence of any such relevant property transaction or distribution.309

Restrictions on out-of-time or additional applications 20.76 If an application for family provision is made later than 12 months after the deceased’s death, or is made in relation to an estate that has previously been the subject of a family provision order, the court must not make a notional estate order in the proceedings unless:310 • it is satisfied that: – the property to be designated as notional estate was the subject of a relevant property transaction or of a distribution from the estates of a deceased person or deceased transferee; – the property is held as a result of the relevant property transaction or distribution as trustee only; and – the property is not vested in interest in any beneficiary under the trust; or • it is satisfied that ‘other special circumstances’ justify the making of the order. 20.77 The cases have targeted the meaning of ‘other special circumstances’. By prefacing ‘special circumstances’ with the word ‘other’, there is sense in the view that the event listed in the first dot point above amounts to a special circumstance.311 But otherwise the Act gives no indication of what constitute ‘special circumstances’. The former equivalent section made explicit reference to ‘the incapacity, during any relevant period, of the person by or on whose behalf the application is made’,312 the term ‘incapacity’ having been held to mean ‘legal incapacity’ rather than only physical or mental incapacity.313

It is therefore unsurprising to find case examples under the previous Act of out-of-time notional estate orders being made in favour of infants and mentally incapable persons, albeit coupled with other circumstances. For example, in Presland v Carroll314 McLaughlin AsJ accepted that the following constituted ‘other special circumstances’: the claim was lodged only 1 day out of time; the late lodgement was not the fault of the applicant (who suffered dementia), his tutor or his solicitor; the estate was distributed only 7 months after the deceased’s death, with knowledge that the applicant, as the widower of the deceased, had been left only a life interest in the matrimonial home; the applicant’s claim was very strong; and no evidence indicated that the defendants had ordered their affairs on the basis that time had expired. [page 720] 20.78 Although the current section makes no explicit reference to incapacity, its existence cannot be discounted as a special circumstance in this context. Whether under the current or the previous section, moreover, more is required to establish ‘other special circumstances’ than is required to obtain an extension of time.315 As the latter is premised on proof of ‘sufficient cause’,316 there is sense in the view that requiring proof of ‘special circumstances’ was intended to set a higher hurdle. So while there may be an overlap here with the factors that may impact upon the exercise of the court’s discretion to extend time,317 those factors will not necessarily substantiate special circumstances.318 For circumstances to be ‘special’, they need not be unique, but must be unusual. In Campbell v Chabert-McKay, to this end, White J found special circumstances in the following combination of events:319 [T]he deceased’s abandonment of the plaintiff when she was a child, his neglect of her during his lifetime, the [substantial] size of the distributed estate and of the property the subject of the prescribed transaction, and the fact that there has been no relevant dealing by the defendant with such property save for the completion of the subdivision of Lot 3, constitute special circumstances which justify the making of an order designating property held by the defendant as notional estate … [S]uch a combination of circumstances is not usual.

In Stone v Stone320 Brereton J found ‘special circumstances’ in the combination of the following: the defendant’s initial agreement to an extension of time (which materially contributed to the plaintiff’s failure to

bring proceedings within time); that the plaintiff’s claim was a strong one; that the defendant took the transfer of the property with notice of the plaintiff’s family provision claim; and that there was no prejudice, as there had been no dealing with the notional estate in the meantime. It has also been suggested that a very significant change of circumstances, from where there was little point in a family provision application to where the applicant has extreme need and consequently a strong case, could amount to ‘special circumstances’.321

1. 2. 3. 4.

5. 6. 7.

8. 9.

10. 11. 12. 13.

See 23.22–23.37. This is explicitly recognised by NSW s 63(1), (2). Barns v Barns (2003) 214 CLR 169; [2003] HCA 9; BC200300694 at [7] per Gleeson CJ. On this point, see 19.43–19.46. See, for example, Sturits v Nicholls [2011] NSWSC 599; BC201104329 at [52] per Macready AsJ (who noted that it was open to the applicant, who was the deceased’s wife, to bring the proceedings despite the fact the deceased’s interest in property has vested in the defendant (being the deceased’s trustee-in-bankruptcy) because such an interest is subject to any equitable interest that might be asserted against the defendant). Barns v Barns (2003) 214 CLR 169; [2003] HCA 9; BC200300694 at [4] per Gleeson CJ. See 1.15–1.28. Qld s 41(12) (which, so far as the property available to meet family provision orders is concerned, declares any sum of money or other property received by any person as a donatio mortis causa made by the deceased to be part of the estate of the deceased). Equivalent provision is made in the relevant New Zealand, Ontario and English statutes: Family Protection Act 1955 (NZ) s 2(5); Succession Law Reform Act 1990 (Ont) s 72(1)(a); Inheritance (Provision for Family and Dependants) Act 1975 (UK) s 8(2). See 20.10–20.12. See 20.64–20.73. A simpler approach is adopted in some Canadian jurisdictions, where the relevant statutes envisage that property disposed by a testator inter vivos can become subject to a family provision order to any extent that the value of the property, in the court’s opinion, exceeds the consideration received by the testator under the contract: see Wills and Succession Act 2010 (Alta) s 102; Provision for Dependants Act 1973 (NB) s 16; Testators’ Family Maintenance Act 1989 (NS) s 16(1); Succession Law Reform Act 1990 (Ont) s 71; Dependants’ Relief Act 1996 (Sask) s 10. See also Inheritance (Provision for Family and Dependants) Act 1975 (UK) s 11 (which empowers the court to reverse the effect of contracts to leave property by will made with the intention of defeating an application for provision). Cf the concept of ‘relevant property transaction’ in New South Wales: see 20.60. See 17.41, 20.3, 20.6–20.9. See 20.39. See 20.40 (NSW), 20.41–20.43 (WA). See 20.39.

14.

15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29.

30. 31. 32.

33. 34. 35. 36. 37. 38. 39. 40.

NSW s 63(4) (equivalent to the former NSW 1982 s 6(5)). The National Committee for Uniform Succession Laws saw such a provision as ‘provid[ing] certainty in determining whether property that is held on trust by a personal representative remains part of an estate or whether it has been distributed’: QLRC, Report 58, July 2004, p 38. (1977) 136 CLR 308; BC7700030. Described as a ‘special meaning’ by Williams J in Dawson v Fitch (2002) 84 SASR 20; [2002] SASC 12; BC200205725 at [122]. Easterbrook v Young (1977) 136 CLR 308 at 315–16; BC7700030. As to modern equivalent provisions, see 17.41. As to modern equivalent provisions, see 20.10–20.12. As to modern equivalent provisions, see 20.39. Easterbrook v Young (1977) 136 CLR 308 at 316; BC7700030. Easterbrook v Young (1977) 136 CLR 308 at 317; BC7700030. Easterbrook v Young (1977) 136 CLR 308 at 317; BC7700030. Easterbrook v Young (1977) 136 CLR 308 at 315; BC7700030. Dawson v Fitch (2002) 84 SASR 20; [2002] SASC 12; BC200205725 at [45], [46] per Lander J, at [122] per Williams J, at [163] per Wicks J. Lazenby v McDermott [2000] TASSC 121; BC200005125. Re Jones [1978] VR 272; Re Lago [1984] VR 705; Groser v Equity Trustees Ltd (2007) 16 VR 101; [2007] VSC 27; BC200700824 at [56]–[73] per Gillard J. [1984] VR 705. Re Lago [1984] VR 705 at 709. Cf Gilchrist v Equity Trustees Ltd [2011] VSC 107; BC201101526 (where Zammit AsJ found the case not simply one of executors becoming trustees of relevant assets, but as involving the constitution of two free-standing and ongoing trusts under the will by the appropriation of relevant assets to the trustees; there had, therefore, been a final distribution of the estate: at [87]–[89]). Re Lerwill [1955] NZLR 858; Brown v Holt [1961] VR 435; Re Donkin (deceased) [1966] Qd R 96; Re McPhail [1971] VR 534. [1966] Qd R 96 at 113, 114, 117. See, for example, Re Burgess [1984] 2 Qd R 379; Re Oakley [1986] 2 Qd R 269; Re McPherson [1987] 2 Qd R 394; Holmes v Webb (CA(Qld), Fitzgerald P, Davies JA and Demack J, 18 August 1992, unreported) BC9202491; Baker v Williams [2007] QSC 226; BC200707213 at [8]–[13] per de Jersey CJ; Frey v Frey (2009) 3 ASTLR 470; [2009] QSC 43; BC200901355 at [102] per A Lyons J (opining that the decision in Easterbrook was based on particular legislative provisions in New South Wales having no Queensland equivalent). See generally R Barber, ‘The Spectre of Easterbrook v Young in Queensland’ (1984) 14 QLSJ 15. Re Burgess [1984] 2 Qd R 379 at 384 per Carter J. ACT s 16(1); NSW s 72(1)(a) (formerly NSW 1982 s 14(1)(a)); NT s 16(1); SA s 10(a); Tas s 9(3)(a); Vic s 97(4)(a); WA s 10. ACT s 16(2); NT s 16(2); Tas s 9(3)(b); Vic s 97(4)(b); WA s 10. NSW s 72(1)(b) (formerly NSW 1982 s 14(1)(b)); SA s 10(b). NSW s 72(2). Liprini v Liprini [2008] NSWSC 423; BC200803289 at [14] per Brereton J. Wentworth v Wentworth (SC(NSW), Young J, 4 September 1991, unreported) BC9101598 at 2. Cf the position in several Canadian provinces, where statute dictates that a family provision order ‘may be enforced in the same way and by the same means as any other judgment or order’ of the

41.

42.

43. 44. 45. 46. 47.

48. 49. 50. 51. 52.

53. 54. 55. 56. 57. 58.

59. 60.

court may be enforced: Dependants’ Relief Act 1996 (NB) s 23(1); Testators’ Family Maintenance Act 1989 (NS) s 18; Succession Law Reform Act 1990 (Ont) s 77(1); Dependants’ Relief Act 1996 (Sask) s 19. Re Jennery (deceased) [1967] 1 Ch 280. Cf Hillman v Box (2010) 5 ACTLR 122; [2010] ACTSC 153; BC201009296 at [46], [47] per Refshauge J (remarking that even if an order is made for provision, the applicant will not become a beneficiary of the deceased’s estate (unless he or she is already a beneficiary) but merely the recipient of provision; as a result, the entitlement of a beneficiary to accounts does not extend to the recipient of a family provision order). Liprini v Liprini [2008] NSWSC 423; BC200803289 at [14] per Brereton J. See also Wiblen v Feros (1998) 44 NSWLR 158 at 173; BC9803229 per Windeyer J; Gorman v Gorman [2003] NSWSC 647; BC200303896 at [19] per Young CJ in Eq. Liprini v Liprini [2008] NSWSC 423; BC200803289 at [15] per Brereton J. Qld s 41(10). SA s 9(7); Tas s 9(7); WA s 14(5). ACT s 18; NT s 18; SA s 9(4); Tas s 9(2); Vic s 97(3); WA s 14(4). ACT s 11(2); NT s 11(2); Qld s 41(3); SA s 9(2); Tas s 10A(1); Vic s 97(2); WA s 14(2). This assumes that the authority of the court extends to the entire estate. If it does not, the allocation is made rateably upon such part of the estate that is within the court’s authority. This is made explicit in the Queensland and Tasmanian legislation: Qld s 41(3); Tas s 10A(1). ACT s 11(3); NT s 11(3); SA s 9(3); Tas s 10A(1); Vic s 97(2); WA s 14(3). See 10.57. See 20.10–20.12. Qld s 43(1). Equivalent provision is made in South Australian, Tasmanian and Victorian legislation: SA s 15(1); Tas s 10B (title referring to ‘estate duty’); Vic s 98 (title referring to ‘probate duty’). These provisions, though, appear directed at exemptions from the now repealed ‘death duties’. ACT s 11(1); NSW s 65(1)(b), (d); NT s 11(1); SA s 9(1)(a), (1)(c); Tas s 9(1)(a), (1)(d) (see also Tas s 8(2), which states that the court may, in making any order, ‘impose such conditions, restrictions, and limitations, whether to prevent, restrict, or defeat any alienation or charge of or upon the benefit of any provision made under such order or otherwise, as the court may think fit’); Vic s 97(1)(a), (1)(c). NSW s 65(1)(c); SA s 9(1)(b); Tas s 9(1)(b); Vic s 97(1)(b); WA s 14(1). The Western Australian legislation, in any case, states that the court may attach such conditions to the order as it thinks fit: WA s 6(3). NSW s 65(2) (equivalent to the former NSW 1982 s 11(1)(a)). Qld s 41(2)(b); SA s 7(6); Vic s 96(3); WA s 6(4). Tas s 3(2). For this purpose, the court may, notwithstanding any provision or direction to the contrary in the will of a deceased person, order that any moneys belonging to or forming part of the estate of that person be expended in the purchase of the fee simple of any real property: Tas s 3(3). See, for example, Waddingham v Burke [2015] WASC 65; BC201500785 (where Mitchell J altered the direction in the will that the matrimonial home be sold immediately and the wife be thereby ejected, and in its place granted provision whereby she could reside therein until willing and able to do so). Daniel v Van Zwol [2015] SASCFC 38; BC201502351 at [2], [3] per Kourakis CJ. Bouttell v Rapisarda [2014] NSWSC 1192; BC201407052 at [96] per McDougall J; Zagame v Zagame [2014] NSWSC 1302; BC201407910 at [310] per Hallen J; Askew v Askew [2015] NSWSC 192; BC201501404 at [139] per Rein J (who opted to make a percentage order as an alternative provision, as an appropriate means of dealing with the uncertainty of whether the property will

61. 62.

63. 64. 65.

66. 67. 68.

69. 70. 71. 72.

73. 74. 75.

need to be sold). NSW s 66(1) (equivalent to the former NSW 1982 s 15(1)). NSW s 65(3) (equivalent to the former NSW 1982 s 11(1)(d)). It appears that the mandatory terms in which s 101 of the Civil Procedure Act 2005 (NSW) (equivalent to the former s 95 of the Supreme Court Act 1970 (NSW)) — being the general provision dealing with interest after judgment — is expressed are displaced by the discretion to order interest under the Succession Act 2006 (NSW): Fiorentini v O’Neill (CA(NSW), Mason P, Handley JA and Fitzgerald AJA, 4 December 1998, unreported) BC9806451 at 24 per the court. See, for example, Large v Higham (No 3) [2010] NSWSC 681; BC201004357 at [21]–[23] per Slattery J (who made an order for interest in circumstances where the defendant had had the benefit of the relevant fund for 3 years and had been in a position to earn interest on it, the plaintiff had not had the benefit of that maintenance for any of the 4-year period since the testator’s death, and the plaintiff had been without the capacity to purchase a property since the testator’s death). Namely a distribution under NSW ss 94(1) (see 14.46) or 92A of the Probate and Administration Act 1898 (NSW) (see 14.50). NSW s 62(3). NSW s 62(1) (equivalent to the former NSW 1982 s 9(5)); WA s 7A(1) (as from 16 January 2013). Equivalent provision is made in Ontario (Succession Law Reform Act 1990 (Ont) s 64) and the United Kingdom (Inheritance (Provision for Family and Dependants) Act 1975 (UK) s 5; see, for example, Re Ralphs [1968] 3 All ER 285; Re Besterman [1984] Ch 458). See, for example, Cotton v Owen (1999) 204 LSJS 426; [1999] SASC 391; BC9906183 at [22]–[33] per Burley J. QLRC, Report 58, July 2004, p 66 (as a backdrop to recommending a provision in model legislation allowing for interim orders). It has been noted that there is no requirement, for this purpose, that it is ‘generally undesirable and frequently impossible’ for the court to ‘come to a view as to the precise size of the provision which it thinks will be ordered at the final hearing’, and nor is it necessary in most cases to form a view as to the amount of the probable final provision: Roberts v Moses [2015] NSWSC 1504; BC201511707 at [15] per Kunc J (adding that, in the bulk of cases, ‘if the court is of the view that a person will receive provision for their maintenance, education and advancement at the final hearing, it should be able to form the requisite opinion without too much difficultly as a matter of simple mathematics’). Proud v Proud [2014] WASC 216; BC201404826 at [14], [26] per Sanderson M. NSW s 62(2) (equivalent to the former NSW 1982 s 9(6)); WA s 7A(2). ACT s 12(1); NT s 12(1); Tas s 10(1); WA s 13(1). If one or more of the persons for whose benefit money is held in trust as a class fund dies, a reference to the persons for whose benefit money is held in trust as a class fund is, after the death of that person, a reference to the survivor(s) of those persons: ACT s 12(3); NT s 12(3); Tas s 10(2)(b); WA s 13(2). ACT s 12(2); NT s 12(2); Tas s 10(2)(a); WA s 13(2). ACT s 12(4); NT s 12(4). Tas s 10(4); WA s 13(4). Under the ‘expediency jurisdiction’ (see Trustee Act 1898 (Tas) s 47; Trustees Act 1962 (WA) s 89) the court may — where in the management or administration of any trust property any disposition or transaction is, in its opinion, expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the trust instrument — by order confer upon the trustee the necessary power for the purpose: see, for example, Cann v Saleeba [2014] WASC 299; BC201406745 at [23], [24] per Sanderson M (using the

76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90.

91. 92. 93. 94. 95.

96.

97.

expediency jurisdiction to authorise an interim distribution from the estate). See further Dal Pont, pp 758–64. As to this discretion, see 17.56. ACT s 15(1); NSW s 68(1); NT s 15(1); Qld s 41(5); SA s 11(1); Tas s 10A(3); WA s 17. In New South Wales this power is premised upon an application by the beneficiary, whereas other jurisdictions contain no such limitation. ACT s 15(2); NSW s 68(2); NT s 15(2); Qld s 41(5); SA s 11(2); Tas s 10A(3); WA s 17(b), (c). NSWLRC, Report 110, p 34. Qld s 41(4); Tas s 10A(2). [1917] NZLR 234 at 235. Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359; BC201009847 at [96] per Campbell JA, with whom Giles JA and Handley AJA concurred. See 19.26, 19.27. (SC(NSW), Young J, 29 August 1988, unreported) BC880242 at 10. See, for example, Bienke v Bienke [2002] NSWSC 804; BC200205297 at [24] per Berecry AM. See, for example, Howarth v Reed (SC(NSW), Powell J, 15 April 1991, unreported) BC9102110 at 42–3. (2010) 5 ASTLR 116; [2010] NSWCA 359; BC201009847 at [101], with whom Giles JA and Handley AJA concurred (emphasis supplied). Hackett v Public Trustee for the Australian Capital Territory (1997) 138 FLR 323 at 333; BC9701642 per Higgins J. (SC(NSW), Hodgson J, 10 July 1985, unreported) BC8500710 at 14. [2005] VSC 354; BC200506608 at [157]. See also Marshall v Public Trustee [2006] NSWSC 402; BC200603402 (where Macready AsJ made an order in favour of a drug-dependent applicant, on the basis that the award would be managed for the applicant’s benefit in a protective trust, that included power to make capital advancements); Gardiner v Gardiner [2012] NSWSC 269; BC201203384 (trust imposed over additional provision to address applicant’s past history of drug abuse: at [75] per Macready AsJ); Christie v Edward [2012] WASC 265; BC201205395 (applicant consented to a trust being imposed over the amount allowed in view of her previous addiction to heroin). [2001] NSWSC 970; BC200106890 at [24]. [1921] NZLR 649 at 650 per Adam J. (2010) 5 ASTLR 116; [2010] NSWCA 359; BC201009847 at [119], with whom Giles JA and Handley AJA concurred. Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359; BC201009847 at [119] per Campbell JA, with whom Giles JA and Handley AJA concurred. See, for example, McCann v Ward [2012] VSC 63; BC201200805 (provision ordered to be paid to a trustee, to make sound financial decisions in the best interests of the deceased’s spendthrift stepchild: at [96] per Hargrave J). Note that NSW s 66(1)(a) makes specific provision to the effect that the court may order the transfer of property of the estate directly to the eligible person in whose favour the order is made ‘or to any other person as trustee for that person’: see 20.16. See, for example, Gabriele v Gabriele (No 2) [2015] VSC 165; BC201503124 (where although the applicant had, in the aftermath of his marriage breakdown, dissipated the proceeds of sale of the matrimonial home, Kaye JA found that this occurred at a difficult time in the applicant’s life, and that a wise and just testator would address the scenario by placing the sum on a protective trust for a period of 5 years, ‘in the hope and expectation that during that time the plaintiff would have the opportunity to get back on his feet’: at [6]). (SC(NSW), Young J, 17 February 1987, unreported) BC8701583.

98. 99.

100.

101.

102. 103. 104. 105. 106. 107. 108. 109. 110.

111. 112.

113.

[2003] NSWSC 248; BC200301482 at [12] per Young CJ in Eq. See, for example, Goldberg v Landerer [2010] NSWSC 1431; BC201009434 (provision ordered in favour of the deceased’s spendthrift son, to be made for the purchase of a one-bedroom unit for the son, to revert to the estate of the testator’s second wife upon the son’s death: at [113], [114] per Rein J); Poole v Barrow [2014] VSC 576; BC201409885 (where, in the face of evidence that the applicant was a gambler and spent in excess of that necessary for an ordinary comfortable life, McMillan J refused the claim for a fee simple interest in the deceased’s property and instead granted a life interest therein). See, for example, Stewart v Stewart [2015] QSC 238; BC201508410 (where Applegarth J, while acknowledging the applicant’s past financial and personal misadventures, when his alcohol abuse and mental condition made him vulnerable to impulsive financial decisions if stressed, noted that these misadventures occurred during a time when he was suffering undiagnosed post-traumatic stress disorder and lacked maturity, whereas more recently, with appropriate treatment and counselling, he had gained an insight into his condition and taken steps to address his alcohol abuse; this prompted his Honour not to circumscribe the financial provision order by either a life estate or a protective trust). Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189; BC200503896 at [39] per Bryson JA, with whom Giles JA and Stein AJA agreed (‘There is no explicit limit in the terms of the Family Provision Act 1982 which prevents a provision from being made with the indirect effect of benefiting a third party. Limits arise in the application of the concept of adequate provision for proper maintenance and the interdependence of such provision with available resources and competing claims’); Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151; BC200701141 at [68] per Young CJ in Eq. See ACT s 8(3)(h) (which directs the court to consider ‘the responsibilities of either the applicant … to support any other person’). Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151; BC200701141 at [69] per Young CJ in Eq. See generally 18.7–18.12. [2010] NSWSC 475; BC201003152. Khoury v Public Trustee [2010] NSWSC 475; BC201003152 at [60]. Khoury v Public Trustee [2010] NSWSC 475; BC201003152 at [78]. (2013) 11 ASTLR 96; [2013] VSC 35; BC201300599. Bankruptcy Act 1966 (Cth) s 116. Collicoat v McMillan [1999] 3 VR 803 at 822; BC9502481 per Ormiston JA (on the facts, however, the share already to be received by the deceased’s son under the will was more than sufficient to pay his creditors); Thomas v Jackson [2002] NSWSC 660; BC200204183 at [29]–[31] per Macready M; Menzies v Marriott [2009] VSC 345; BC200907503 at [46], [47] per Hollingworth J. See 17.16. Coffey v Bennett [1961] VR 264; McLeod v Johns [1981] 1 NSWLR 347 at 348 per Kearney J; Collicoat v McMillan [1999] 3 VR 803 at 822; BC9502481 per Ormiston JA; Menzies v Marriott [2009] VSC 345; BC200907503 at [46] per Hollingworth J; McMahon v Smith (2011) 9 ASTLR 428; [2011] NSWSC 487; BC201103947 at [128] per Hallen AsJ; Poesch v Grosvero [2013] VSC 596; BC201314281 at [29], [30] per Derham AsJ. McLeod v Jones [1981] 1 NSWLR 347; Hunter v Hunter (SC(NSW), Needham J, 28 June 1989, unreported); Nutt v Public Trustee (SC(NSW), McLaughlin M, 27 November 1996, unreported) BC9605998; Popovski v Kenjar [2011] NSWSC 731; BC201105489 at [192]–[198] per Hallen AsJ.

114. Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54; BC200901634 at [1] per Allsop P (‘A small bequest to someone with considerable debts may make the difference … between happiness and misery’), at [69] per Basten JA; Colantuono v Colantuono [2009] NSWSC 1445; BC200911720 at [106], [107] per Ward J. 115. [1999] NSWSC 289; BC9901306. 116. Caska v Caska [1999] NSWSC 289; BC9901306 at [15]. 117. Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54; BC200901634 at [1] per Allsop P, at [69] per Basten JA. 118. ACT s 19; NT s 19; Qld s 41(11); SA s 13; WA s 19. 119. Note the judicial laments to this effect: see 23.22. 120. To be contrasted with parties’ entitlement to make any rearrangement of the terms of a will they wish, if all beneficiaries are of age and absolutely entitled, which has nothing whatever to do with the jurisdiction under the family provision legislation: Hore v Perpetual Trustee Co Ltd (SC(NSW), Windeyer J, 8 June 1995, unreported) BC9504786 at 11. 121. It has been observed, to this end, that ‘[i]f there could be a jurisdiction bestowed by consent the estate could be disposed of contrary to law by fraud in the absence of any will or by a will that was valid on its face but invalid, or there might be a later will in existence’: Re Wieland (deceased) [1960] Qd R 585 at 591 per Mack J. 122. Application of Scali [2010] NSWSC 1254; BC201008000 at [11] per Brereton J; Affoo v Public Trustee of Queensland [2012] 1 Qd R 408; [2011] QSC 309; BC201108181 at [24], [25] per Dalton J; Abrahams v Abrahams (2015) 13 ASTLR 406; [2015] QCA 286; BC201512611 at [30] per the court. 123. Hadley v McNamara (SC(NSW), Young J, 7 December 1995, unreported) BC9506808 at 2. See also Bartlett v Coomber [2008] NSWCA 100; BC200804061 at [72] per Hodgson JA, at [91] per Bryson AJA (‘in almost every case an agreement which an executor has made in exercise of the statutory power to make compromises, with an understanding of the assets in the estate and the interests of the persons otherwise entitled to them, and with legal advice will ordinarily have an extremely strong claim for attention among the relevant circumstances’; on the facts the compromise agreement was reached in circumstances where the executrix availed herself of the advice of solicitor and counsel, and with the concurrence of the appellant); Schaechtele v Schaechtele [2008] WASC 148; BC200806777 at [4], [6] per Le Miere J; Watts v Public Trustee of Queensland (2010) 3 ASTLR 613; [2010] QSC 410; BC201008146 at [11]–[15] per Jones J; Abrahams v Abrahams (2015) 13 ASTLR 406; [2015] QCA 286; BC201512611 at [44]–[46] per the court. 124. Bartlett v Coomber [2008] NSWCA 100; BC200804061 at [91] per Bryson AJA. Pacta sunt servanda is a Latin phrase meaning ‘agreements must be kept’. 125. [2008] WASC 148; BC200806777 at [18] (emphasis supplied). See also Bartlett v Coomber [2008] NSWCA 100; BC200804061 at [72] per Hodgson JA (‘Because of the agreement, the court will generally be satisfied of these things without the need for any significant investigation of the evidence’), at [85] per Bryson AJA (noting that, if the court simply accepted the agreement of the parties and ordered the provision for which the agreement provides without considering exercise of its statutory power, it would act in error, as ‘it would in substance fail to exercise its power’); Cutting v Public Trustee for the Northern Territory [2017] NTSC 6; BC201700248 at [31], [32] per Luppino M. 126. Hore v Perpetual Trustee Co Ltd (SC(NSW), Windeyer J, 8 June 1995, unreported) BC9504786 at 12. 127. Bartlett v Coomber [2008] NSWCA 100; BC200804061 at [73] per Hodgson JA. 128. Hore v Perpetual Trustee Co Ltd (SC(NSW), Windeyer J, 8 June 1995, unreported) BC9504786 at 12. 129. Hadley v McNamara (SC(NSW), Young J, 7 December 1995, unreported) BC9506808 at 2. 130. Bartlett v Coomber [2008] NSWCA 100; BC200804061 at [56], [57] per Mason P.

131. 132. 133. 134. 135. 136. 137. 138. 139. 140.

141.

142.

143. 144. 145. 146. 147. 148. 149. 150. 151. 152.

[2010] NSWSC 1254; BC201008000. Application of Scali [2010] NSWSC 1254; BC201008000 at [12]. [2010] NSWSC 1083; BC201007143 at [14]–[21]. VLRC, 2013, Executive Summary, [31]. Boardman v Boardman (2012) 10 ASTLR 138; [2012] NSWSC 1257; BC201210461 at [53] per Lindsay J. NSW s 95(1) (NSW s 95 is equivalent to the former NSW 1982 s 31(1)–(6)). NSW s 95(2). NSW s 95(3). NSW s 95(4). In this context it has been judicially observed that ‘[a] prudent person is one who acts with care and thought for the future in particular exercising care and good judgment in relation to one’s own interests’: Russell v Quinton [2000] NSWSC 322; BC200001969 at [70] per Bergin J. See, for example, Russell v Quinton [2000] NSWSC 322; BC200001969 (where although the deed in question presented as fair and reasonable, as each party had taken legal advice and accepted that the deed should be signed, on investigation it was clear that ‘the plaintiff was complying with a request to placate third parties (the deceased’s parents) rather than signing a Deed to govern what she really wanted’, such that ‘[t]he giving away of her rights in the circumstances of the relationship that had developed with the deceased … was not fair and reasonable’: at [75] per Bergin J); Neil v Jacovou [2011] NSWSC 87; BC201101790 (where Slattery J held that for the applicant to release her family provision rights in exchange for very limited promises of a guaranteed share in her late husband’s assets (at most to 4 per cent of his estate should the marriage last 11 years or longer) was objectively unfair and unreasonable: at [83]). Cf Scott MacRae Investments Pty Ltd v Baylily Ltd [2012] NSWSC 823; BC201205381 (approval granted because the terms of the release were fair and reasonable and its approval would bring to an end an arduous dispute between the parties). See, for example, Russell v Quinton [2000] NSWSC 322; BC200001969 (where, although the plaintiff received independent advice, Bergin J formed the view that ‘by reason of the fear of the termination of the relationship, or the stormy course of any remaining relationship, combined with the deceased’s suggested purpose of the deed and the expectation that the deceased would ultimately provide for her if they remained together, the plaintiff did not give due consideration to the advice she received’: at [76]). Boardman v Boardman (2012) 10 ASTLR 138; [2012] NSWSC 1257; BC201210461 at [55]–[58] per Lindsay J. As to mediation and consent orders, see 20.37. NSW s 96(1), (2) (NSW s 96 is equivalent to the former NSW 1982 s 31(7)–(9)). NSW s 96(3). QLRC, MP 28, p 107. VLRC, 2013, recommendation 48. NSW s 98(2). NSW s 98(3). See Hansen v Hennessey (No 2) [2014] VSC 115; BC201401947 at [33] per Lansdowne AsJ (noting that ‘[i]n most applications for further provision a mediation is routinely ordered by the court’). Supreme Court of Victoria, Common Law Division, Practice Note No 7 of 2015 (Testators Family Maintenance List), cl 7 (applicable from 1 January 2015). See Civil Law (Wrongs) Act 2002 (ACT) s 195(1); NT RSC r 48.13(1); Civil Proceedings Act 2011 (Qld) ss 43, 44; Supreme Court Act 1935 (SA) s 65(1); Alternative Dispute Resolution Act 2001 (Tas) s 5(1); Tas RSC r 518(1); WA RSC O 4A Div 2. See also Civil Procedure Act 2005 (NSW) s 26(1); Civil Procedure Act 2010 (Vic) s 66; Vic RSC r 50.07.

153. ‘Administator’, in relation to the estate of a deceased person, means a person to whom administration has been granted in respect of the deceased person: ACT Dictionary; NT s 4(1). 154. ACT s 20; NT s 20. 155. ‘Administrator’ means any person to whom administration has been granted, being probate of the will of a deceased person or letters of administration of the estate of a deceased person: SA s 4. 156. SA s 14(1): see 17.53. 157. SA s 14(3). 158. SA s 9(7). 159. Blunden v Blunden (2008) 258 LSJS 206; [2008] SASC 286; BC200809761 at [29] per Bleby J. 160. NSW s 63(3), (5). 161. See 20.58–20.78. 162. WA s 8(1). Section 65(1) of the Trustees Act 1962 (WA) applies where a trustee has distributed any assets forming part of the estate of a deceased person or subject to a trust, and nothing in any Act prevents the distribution from being disturbed. 163. WA s 8(2). 164. WA s 9. 165. Cf Public Trustee v Bebich [2014] WASC 340; BC201407922 (where Le Miere J held that the defence under the Trustees Act 1962 (WA) s 65(8) did not apply on the facts because the executor did not receive the properties in good faith, as he had transferred the properties to himself in breach of his duty as executor of the estate: at [27]). 166. Young v Kestel [2003] WASCA 190; BC200304746 at [72] per E M Heenan J, with whom McLure J agreed. 167. Regan v Zoller (SC(WA), Brinsden J, 6 December 1985, unreported); Pugh v Delgado [2006] WASC 267; BC200610095 at [38]–[41] per Newnes M (noting that ‘[t]he wording of the proviso effectively mirrors the wording of s 65(5)(b) and, in my view, is intended to apply only to that provision. It is not apt, and cannot have been intended, to apply to an application under the [Family Provision Act]’: at [41]). 168. As to the limitation period, see 17.20. 169. Pugh v Delgado [2006] WASC 267; BC200610095 at [46], [47] per Newnes M. As to extension of time, see 17.21, 17.22. 170. Young v Kestel [2003] WASCA 190; BC200304746 at [74] per E M Heenan J, with whom McLure J agreed. 171. The word ‘immediately’ indicates that ‘the distribution is to directly achieve that purpose’: Public Trustee v Bebich [2014] WASC 340; BC201407922 at [24] per Le Miere J (ruling that the transfer of real property to be used as security for substantial loans to be used as working capital in a substantial business was ‘not a distribution for the purpose of providing those things immediately necessary for the maintenance, support or education of the relevant persons’). 172. As to the concept of ‘dependence’, see 16.22–16.36. 173. ‘Administrator’ means any person to whom probate of the will of a deceased person is granted, or to whom administration is granted: WA s 4(1). 174. WA s 11. 175. See, for example, Blair v Blair (2004) 10 VR 69; [2004] VSCA 149; BC200405494 at [30] per Chernov JA, with whom Nettle JA and Hansen AJA concurred (who endorsed a comment by a trial judge that ‘[e]xactness in the calculation of [the relevant amount] is impossible’). 176. Grey v Harrison [1997] 2 VR 359 at 366; BC9606012 per Callaway JA, with whom Tadgell and Charles JJA concurred. 177. [2014] NSWSC 613; BC201403741 at [63].

178. McKenzie v Topp [2004] VSC 90; BC200401441 at [63] per Nettle J; Re Estate of Tavra (2011) 4 ASTLR 506; [2011] VSC 359; BC201105886 at [41] per Zammit AsJ. 179. Worboys v Jones [2004] NZFLR 360 at [33] per Wild J. 180. AB v RT [2015] NZHC 3174; BC201564220 at [22] per Brown J (adding that the quantum of an award must therefore ‘be justified not with reference to precedent, but with reference to principles relevant to the facts of the specific case’: at [23]). 181. Fung v Ye [2007] NSWCA 115; BC200703562 at [17] per Young CJ in Eq, with whom Tobias JA and Bell J concurred. 182. (2010) 79 NSWLR 491; [2010] NSWCA 316; BC201008883 at [54], with whom Allsop P and Young JA concurred. See also Lohse v Lewis [2004] 2 Qd R 648; [2004] QSC 36; BC200400757 at [115] per Mullins J. 183. Although in various cases the 3 per cent discount tables appear to have been used for family provision purposes without discussion as to the appropriateness of such tables: see, for example, Pope v Christie (1998) 144 FLR 380 at 388 per Young J; Falkingham v Falkingham [2002] NSWSC 534; BC200203391 at [34] per Macready M; McGrath v Eves [2005] NSWSC 1006; BC200507745 at [50] per Gzell J. See also Mayfield v Lloyd-Williams [2004] NSWSC 419; BC200403130 (where the parties agreed that it was appropriate to use a 3 per cent discount rate in order to provide a capital sum that would yield a certain amount per week after tax for a specified period; there was no suggestion, when the matter was determined on appeal, that this was inappropriate: Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189; BC200503896); Stern v Sekers [2010] NSWSC 59; BC201000448 at [365] per Ward J (who opined that ‘the community would expect a conservative approach to be taken in a case where the testator is looking at the proper provision for a severely disabled daughter’, and so considered it appropriate for the 3 per cent tables to be used). 184. Tchadovitch v Tchadovitch (2010) 79 NSWLR 491; [2010] NSWCA 316; BC201008883 at [56] per Campbell JA, with whom Allsop P and Young JA concurred. 185. Costello v Martens [2009] NSWSC 1151; BC200909756 at [92] per McLaughlin AsJ. 186. Cf Darveniza v Darveniza [2014] QSC 37; BC201401632 (where, in determining that the deceased’s son should receive provision of $3m from the deceased’s $27m estate, a factor that influenced Martin J was that family provision claims by other offspring had been settled for between $2.85m and $3.2m: at [64]). 187. Costello v Martens [2009] NSWSC 1151; BC200909756 at [93] per McLaughlin AsJ. 188. Pursuant to the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic). 189. Vic s 91(4). 190. ‘Registered caring partner’ of a person who dies means a person who, at the time of the person’s death, was in a registered caring relationship with the person within the meaning of the Relationships Act 2008 (Vic): Vic s 3(1). 191. ‘Spouse’ of a person who dies means a person who was married to the person at the time of the person’s death: Vic s 3(1). 192. ‘Domestic partner’ of a person who dies means a registered domestic partner or an unregistered domestic partner of that person: Vic s 3(1). ‘Registered domestic partner’ of a person who dies means a person who, at the time of the person’s death, was in a registered domestic relationship with the person within the meaning of the Relationships Act 2008 (Vic): Vic s 3(1). ‘Unregistered domestic partner’ of a person who dies means a person (other than a registered domestic partner of the person) who, although not married to the person: (a) was living with the person at the time of the person’s death as a couple on a genuine domestic basis (irrespective of gender); and (b) either: (i) had lived with the person in that manner continuously for a period of at least 2 years immediately before the person’s death; or (ii) is the parent of a child of the person, being a child who was under

193. 194. 195. 196. 197.

198. 199. 200. 201. 202. 203. 204. 205. 206. 207. 208. 209.

210. 211. 212. 213. 214. 215.

18 years of age at the time of the person’s death: Vic s 3(1). As to this case law, see 18.23–18.30. Vic s 91(5). See 17.20. See 17.21, 17.22. Compare ACT s 9A(3) (where the power is directed to the scenario where, upon an application made by or on behalf of that person, the court is satisfied that the provision is not adequate for his or her proper maintenance, education or advancement in life; if so satisfied, the court may, in its discretion and having regard to all the circumstances of the case, vary the previous order by increasing the amount of the provision) with NT s 17(2) and SA s 12 (which, conversely, target the scenario where the recipient of a family provision order ‘has otherwise become possessed of or entitled to means for his proper maintenance, education or advancement’). In the Northern Territory this comes to the court’s attention via an application by the administrator of the estate or by any person beneficially entitled to, or interested in, a part of that estate, whereas in South Australia the legislation simply refers to the court’s ‘power to inquire’ in this regard. Whether upon such an application or such an inquiry, the court is empowered to discharge, vary or suspend its order, or make such other order as is just in the circumstances. ACT s 9A(1) (definition of ‘administrator’), (2); NT ss 4(1) (definition of ‘administrator’), 17(1); SA ss 4 (definition of ‘administrator’), 9(5); Tas s 9(5); Vic s 97(5); WA ss 4(1) (definition of ‘administrator’), 15(1). ACT s 9A(4); NT s 17(4); SA s 9(6); Tas s 9(6); Vic s 97(5A) (before 1 January 2015, Vic s 97(5)); WA s 15(2). ACT s 9A(2) (and empowers the court to make any further orders it thinks fit for the purpose of giving effect to its order varying, suspending or discharging the previous order, and any other orders that it considers just: s 9A(5)); NT s 17(1), (3). SA s 9(5); Vic s 97(5). Tas s 9(5), (5A). WA s 15(1). WA s 16(1). Being the commencement date of the Inheritance (Family and Dependants Provision) Amendment Act 2011 (WA). WA s 6(5). This represents a modified version of the clause recommended by the National Committee for Uniform Succession Laws: see QLRC, Report 58, pp 62–3. Cf the equivalent New South Wales provision: see 20.52. WA s 6(7). NSW s 70(2). NSW s 70(3) (cf NSW 1982 s 19(1)–(3)). If a family provision order is varied or revoked, the court may: (a) vary or revoke any other orders made by it as a consequence of, or in relation to, the order to such extent as may be necessary as a result of the variation or revocation; and (b) make such additional orders as may be so necessary: NSW s 71 (formerly NSW 1982 s 19(4)). NSW s 59(3) (cf NSW 1982 s 8). As to the ‘notional estate’, see 20.64–20.73. Wentworth v Wentworth (1995) 37 NSWLR 703 at 752; BC9505254 per Giles AJA. New South Wales Law Reform Commission, Report on Testators Family Maintenance and Guardianship of Infants Act 1916, Report 28, 1977, pp 59–61. Wentworth v Wentworth (1995) 37 NSWLR 703 at 725; BC9505254 per Powell JA. See generally QLRC, Report 58, pp 59–66 (in so doing overcoming the decision in Re Strom [1966]

216.

217. 218. 219. 220. 221. 222.

223. 224. 225. 226. 227.

228. 229. 230.

231.

1 NSWR 592, a case where substantial assets of the deceased were subsequently discovered, but in the absence of statutory power to redetermine the claim, the application for additional provision was refused). QLRC, Report 58, p 62. To this end, the National Committee was unwilling to go further and allow an application for additional provision in circumstances where the value of an asset proved understated or there had been an increase in value of particular assets since the previous hearing, in each instance informed by reducing scope for encouraging litigation: ibid pp 63–4. Qld s 42(1). Qld s 42(1A). Qld s 42(2). See 17.55, 17.56. (1936) 55 CLR 499 at 504–5; BC3601021 per Dixon, Evatt and McTiernan JJ. Singer v Berghouse (1994) 181 CLR 201 at 212; BC9404642 per Mason CJ, Deane and McHugh JJ; Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11; BC200500902 at [82] per Gummow and Hayne JJ; Clifford v Mayr [2010] NSWCA 6; BC201000435 at [67]–[74] per Campbell JA, with whom Young JA and Handley AJA concurred; Carey v Robson [2010] NSWCA 212; BC201006396 at [16] per Hodgson JA, with whom Campbell JA and Sackville AJA concurred; Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107; BC201503044 at [74] per Basten JA, with whom Leeming JA concurred; Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195; BC201506314 at [120] per Emmett JA; Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269; BC201508677 at [77] per Basten JA, with whom Ward JA concurred. Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62; BC201102298 at [81] per Campbell JA. (CA(NSW), Kirby P, Handley and Cripps JJA, 5 October 1993, unreported) BC9302134 at 13. McCarthy v McCarthy [2010] NSWCA 103; BC201002832 at [39] per Young JA. Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359; BC201009847 at [83] per Campbell JA, with whom Giles JA and Handley AJA concurred. Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359; BC201009847 at [83] per Campbell JA, with whom Giles JA and Handley AJA concurred. See also Fung v Ye [2007] NSWCA 115; BC200703562 at [17] per Young CJ in Eq, with whom Tobias JA and Bell J concurred (noting that ‘it is not uncommon for appellate courts to consider the range of awards that are commonly made in similar cases’ and that ‘experienced judges do get a feel for the range’). See, for example, Forsyth v Sinclair [2010] VSCA 147; BC201004190 at [104] per Neave JA (who described the trial judge’s factual errors as ‘relatively inconsequential’). See 23.5–23.19. Dehnert v Perpetual Executors and Trustees Association of Australia Ltd (1954) 91 CLR 177 at 191–2; BC5400490 per Kitto J. See, for example, Milillo v Konnecke (2009) 2 ASTLR 235; [2009] NSWCA 109; BC200903916 at [130] per Ipp JA, with whom Macfarlan JA and Sackville AJA concurred (where the executors resisted the appeal in accordance with their duty to defend the will, and there was no suggestion that they acted other than honestly and with propriety, they were entitled to be reimbursed from the estate on an indemnity basis for the balance of their costs to the extent to which those costs were not paid by the appellant). [1993] 2 Qd R 383 at 388, with whom McPherson ACJ and Byrne J agreed. See also Re Blyth (deceased) [1959] NZLR 1313 at 1314 per Cleary J, with whom Gresson P and North J agreed (‘even a widow who appeals against the refusal of an application in the Supreme Court must run the risk of costs being awarded in this Court if her appeal be unsuccessful. We think the working rule to adopt is the one that has been expressed in the Court of Appeal in England on an appeal on a

232.

233.

234.

235.

236.

237.

238. 239. 240. 241. 242. 243.

question of interpretation. The working rule should be: is the case one where it was justified in taking what the Court of Appeal in England called a second opinion?’). See, for example, Re Duncan [1939] VLR 355; Sampson v Sampson (1945) 70 CLR 576; BC4500013; Fox v Burville (1955) 92 CLR 334; BC5500640; Dun v Dun (1959) 100 CLR 361; BC5900070. Cf Re Just [1938] St R Qd 93. Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392; BC201409683 at [147] per Barrett JA; Daniel v Van Zwol (2015) 123 SASR 463; [2015] SASCFC 93; BC201507322 at [11] per the court. See, for example, Coombes v Ward [2004] VSCA 51; BC200401682 at [8] per Winneke P (who noted that ‘[s]o obviously correct was [the trial judge’s] conclusion that I joined with the other members of the Court in dismissing the appeal without the need to call upon counsel for the respondent’, and accepted that the appeal had no prospects of success and that it would be unfair to further burden the (small) estate with the costs of the appeal), at [15] per Chernov JA (referring to the prospects of success in the appeal as ‘hopeless’), at [30] per Bongiorno AJA; Freeman v Jaques [2006] 1 Qd R 318; [2005] QCA 423; BC200509863 at [49] per Keane JA, with whom de Jersey CJ and McPherson JA concurred (where the appellants ‘made much of minor factual matters, each of which has been found to have no real significance’); Manly v Public Trustee of Queensland [2008] QCA 198; BC200806762 at [42] per Daubney J, with whom McMurdo P and Mackenzie AJA concurred (involving an unsuccessful appeal for provision from a modest estate, which had already been significantly diminished by reason of the costs properly incurred in the challenge at first instance); Lathwell v Lathwell [2008] WASCA 256 (S); BC200901111 at [13] per the court (remarking as to the absence of any evidence from the appellant about steps taken to obtain legal advice, given the court’s conclusion about the lack of merit in the grounds of appeal); Milillo v Konnecke (2009) 2 ASTLR 235; [2009] NSWCA 109; BC200903916 at [108] per Ipp JA, with whom Macfarlan JA and Sackville AJA concurred (who ordered costs against an unsuccessful appellant where the estate was a small one and the appeal generated substantial costs). See, for example, Forsyth v Sinclair (No 2) [2010] VSCA 195; BC201005509 at [23]–[26] per the court (where the appeal on a question of law was found to be ‘clearly arguable’ but the challenge to the trial judge’s factual findings was hopeless; the court ordered that the appellant’s costs of the appeal should be reduced by a proportion fixed by reference to an estimate of the extent of the costs unreasonably incurred, which it decreed to be 50 per cent). See, for example, Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392; BC201409683 (where the executor’s appeal was allowed with costs); Daniel v Van Zwol (2015) 123 SASR 463; [2015] SASCFC 93; BC201507322 (where the executor’s appeal was rejected, and she was ordered to pay costs). NSW s 63(3), (5). The former notional estate provisions were found in NSW 1982 Pt 2 Div 2, and were the product of recommendations by the New South Wales Law Reform Commission: Testator’s Family Maintenance and Guardianship of Infants Act 1916, Report 28, 1977. Galt v Compagnon (SC(NSW), Einstein J, 24 February 1998, unreported) BC9800701 at 21. NSWLRC, Report 110, p 37. The concept of a ‘relevant property transaction’ is elaborated at 20.60–20.63. NSW s 78. NSW s 84 (similar to NSW 1982 s 29). QLRC, Report 58, July 2004, p 14. See also Belfield v Belfield (2012) 83 NSWLR 189; [2012] NSWCA 416; BC201209897 at [68] per Campbell JA (noting that as the court’s power to make provision was traditionally confined to distribution from assets that the deceased owned at the time of death, this left open the possibility that persons could prevent the court from making an order

244. 245. 246. 247. 248.

249.

250.

251. 252. 253.

254. 255.

for provision by giving away assets before they died, or by transferring assets into a structure over which they had a measure of practical control without retaining actual ownership of the assets; the notional estate provisions were designed to enable the court to make provision in certain circumstances such as these). QLRC, MP 28, p 81. QLRC, MP 28, Ch 6. VLRC, 2013, pp 132–3. See, for example, Vickers v Pickering [2016] QDC 58 at [22] per McGill SC DCJ. A reference to ‘property held by a person’ includes property in relation to which the person is entitled to exercise a power of appointment or disposition in his or her favour: NSW s 55(4). ‘Property’ includes ‘any valuable benefit’: NSW s 3(1). It follows that there may be a ‘relevant property transaction’ even though there has been no change in the ownership of any property, as it is sufficient that ‘any valuable benefit’ becomes held by a person other than the deceased: Kavalee v Burbidge (1998) 43 NSWLR 422 at 443; BC9801317 per Mason P. Accordingly, an increase in the value of shares held by existing shareholders as a result of the conversion on death of the deceased’s ordinary shares into preference shares falls within the scope of the Act: Schaeffer v Schaeffer (1994) 36 NSWLR 315; BC9403336. The phrase ‘full valuable consideration’ means ‘such valuable consideration as amounts to, approximates, or is broadly commensurate with, or is a fair equivalent of, the value of that for which it is given’: Kastrounis v Foundouradakis [2012] NSWSC 264; BC201203381 at [95] per Hallen AsJ, adopting the approach of Young J in Wade v Harding (1987) 11 NSWLR 551 at 554–5 (overruled in Cetojevic v Cetojevic [2007] NSWCA 33; BC200701029, but not on this specific point). Hallen AsJ added (at [96]) that whether full valuable consideration is given is a question of fact — not one of discretion — to be determined applying a commonsense approach and avoiding finely balanced mathematical computations. As to the onus of establishing that full valuable consideration was not given, his Honour opined (at [99]) that it lies on the party asserting that proposition; but where that party establishes a prima facie case of inadequacy of the valuable consideration given, the evidential burden shifts to the other party to establish that there was, indeed, consideration given, and the extent of that consideration. It is not essential that ‘consideration’ for this purpose be supplied in monetary terms; it can, accordingly, include personal services by way of care and attention, and even promises made as to future conduct: see, for example, Davidson v Sampson [2012] NSWSC 481; BC201203239 at [77]–[80] per Stevenson J. It has been said that the words ‘not given’ are used intentionally in contradiction to the words ‘not received’, so that the word ‘given’ in its context ‘was intended by the legislature to refer to consideration that is not only received by the deceased but also is “given” to him or her in the sense of received from some third party’: Cetojevic v Cetojevic [2007] NSWCA 33; BC200701029 at [61], [62] per Tobias JA. NSW s 75(1) (similar to NSW 1982 s 22(1), which used the terminology ‘prescribed transaction’). Kavalee v Burbidge (1998) 43 NSWLR 422 at 443, 447; BC9801317 per Mason P. Kavalee v Burbidge (1998) 43 NSWLR 422 at 446–7; BC9801317 per Mason P, with whom Meagher JA concurred. Contra at 460 per Handley JA (dissenting on this point) (who viewed the words ‘directly or indirectly’ as ‘linked to the doing of an act and not its results’, so that the inquiry ‘is whether an act which had a certain result has been done directly or indirectly’ and ‘not whether the deceased has, directly or indirectly, caused property to be disposed of to another or become subject to a trust’). NSW s 75(2) (equivalent to NSW 1982 s 22(3)). NSW s 75(3) (equivalent to NSW 1982 s 22(7)).

256. Kavalee v Burbidge (1998) 43 NSWLR 422 at 441; BC9801317 per Mason P. 257. Kavalee v Burbidge (1998) 43 NSWLR 422 at 441; BC9801317 per Mason P, referring to Schaeffer v Schaeffer (1994) 36 NSWLR 315 at 319–20; BC9403336 per Handley JA, with whom Kirby P and Sheller JA concurred. See also Stern v Sekers [2010] NSWSC 59; BC201000448 at [180] per Ward J. 258. Wentworth v Wentworth (SC(NSW), Bryson J, 14 June 1991, unreported) BC9101896 at 107. 259. NSW s 76(2) (equivalent to NSW 1982 s 22(4)). 260. A reference to a ‘person entitled to exercise a power’ means a person entitled to exercise a power, whether or not the power: (a) is absolute or conditional; (b) arises under a trust or in some other manner; or (c) is to be exercised solely by the person or by the person together with one or more other persons (whether jointly or severally): NSW s 55(3). 261. The use of the expression ‘with the result’, it has been said, ‘does not mean that the omission to exercise a power must be the sole cause of property becoming held by another person or subject to a trust, or to another person’s becoming, or continuing to be, entitled to exercise the power’, but that ‘a contributing cause is sufficient’: Wardy v Salier [2014] NSWSC 473; BC201403070 at [115] per White J. Cf Kavalee v Burbidge (1998) 43 NSWLR 422 at 443; BC9801317 per Mason P. 262. In Kavalee v Burbidge (1998) 43 NSWLR 422 at 454; BC9801317 Mason P noted that the very fact that the subsection contemplates that ‘another person’ may continue to be entitled to exercise the power shows that the provision ‘embraces the situation of two or more persons having a concurrent power to dispose of property with one of those persons (being the deceased) ceasing to exercise it as a result of the prior omission to exercise it and death’. 263. For this purpose, a person is not given full or any valuable consideration for not severing an interest in property held as a joint tenant merely because, by not severing that interest, the person retains, until his or her death, the benefit of the right of survivorship in respect of that property: NSW s 76(4). As to the position prior to the commencement of s 76(4), where under NSW 1982 there was no equivalent provision, see Cameron v Hills (SC(NSW), Needham J, 26 October 1989, unreported) BC8901539 at 9; Chan v Tsui [2005] NSWSC 82; BC200501012 at [70]–[72] per Macready M; Cetojevic v Cetojevic [2007] NSWCA 33; BC200701029 at [51] per Hodgson JA, at [63], [64] per Tobias JA. As to the backdrop to NSW s 76(4), see QLRC, Report 58, pp 14–20; NSWLRC, Report 110, pp 40–2. 264. NSW s 77(3). 265. Namely NSW 1982 s 22(4)(a). 266. See, for example, Kavalee v Burbidge (1998) 43 NSWLR 422; BC9801317 (where a majority of the court (per Mason P, Meagher JA concurring, Handley JA dissenting) found that the deceased (H), as the founder of the relevant foundation, retained the right to control its organisation and administration, and thereby to direct it in its dealings in favour of beneficiaries as determined by H from time to time, so that ‘if push came to shove’ H had the legal capacity to compel a particular disposition to be made by a third party: at 447). 267. Hitchcock v Pratt (2010) 79 NSWLR 687; [2010] NSWSC 1508; BC201010236 at [27] per Brereton J. 268. Kavalee v Burbidge (1998) 43 NSWLR 422 at 452; BC9801317 per Mason P (‘entitlement and immediate enjoyment are different’). 269. Hitchcock v Pratt (2010) 79 NSWLR 687; [2010] NSWSC 1508; BC201010236 at [29] per Brereton J. 270. Schaeffer v Schaeffer (1994) 36 NSWLR 315 at 319; BC9403336 per Handley JA, with whom Kirby P and Sheller JA concurred (reasoning that a narrow construction, that would eschew increases in the value of existing assets, would have made the relevant provisions inapplicable to a wide range of value transfer schemes designed to avoid (then) death duties — that enabled their users to control a

271. 272. 273. 274. 275. 276. 277. 278.

279. 280.

281.

282.

283.

284. 285. 286. 287.

company, its assets and income until their death while ensuring that the benefits they enjoyed in their lifetime then pass to persons of their choice independently of their testamentary dispositions and transmissible property — and thereby also represent a simple and effective means of avoiding the notional estate provisions: at 319–20). NSW s 77(1)–(4) (cf NSW 1982 s 22(2), (5), (6)). Manning v Matsen [2015] NSWSC 1801; BC201512230 at [137] per Slattery J. A policy underscoring NSW s 87, as to which see 20.71. Manning v Matsen [2015] NSWSC 1801; BC201512230 at [138] per Slattery J. See 20.70. See 20.71–20.73. NSW s 79 (similar to NSW 1982 s 24). [2006] NSWSC 1252; BC200609647 at [23]. See also Charnock v Handley [2011] NSWSC 1408; BC201410159 at [190], [191] per Hallen AsJ; Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4; BC201400355 at [76] per Beazley P. NSW s 80(1), (2) (equivalent to NSW 1982 s 23). The focus of this dot point is on the (subjective) intention — of the person deceased, not the other party to the transaction: Stojanovski v Stojovski [2016] NSWSC 976; BC201605769 at [207] per Hallen J — with which the transaction was entered into, not its effect; if that intention cannot be established, that the effect of the transaction is to wholly or partly, deny or limit provision, does not matter: Kastrounis v Foundouradakis [2012] NSWSC 264; BC201203381 at [112] per Hallen AsJ. In order to have that intention, the deceased must appreciate that one or more persons may have a claim in respect of the relevant property — even if he or she does not appreciate its precise nature — and a reason for entering into the transaction is to wholly or partly defeat that claim. That the deceased did not believe that the property itself was necessary to meet possible claims makes it difficult to sustain a finding of the requisite intention, but such a finding is not precluded because the relevant intention is a secondary one as opposed to the primary one: Courtney v Powell [2012] NSWSC 460; BC201203538 at [67]–[71] per Ball J. The phrase ‘moral obligation’ has been described as ‘no more than a simple and convenient way of referring to the obligation resting upon a deceased to make a wise and just assessment of the interests of any person who is able to ask to be taken into account in determining what adequate provision for proper maintenance, education and advancement in life, should have been made for him or her’: Kastrounis v Foundouradakis [2012] NSWSC 264; BC201203381 at [114] per Hallen AsJ. The term ‘substantially’ receives its natural meaning, namely real and not trivial, minimal, imaginary, ephemeral, or nominal; by adding the term ‘substantially’, therefore, the section requires that the relevant moral obligation to any eligible person be of ‘real substance, compared with the moral obligation to enter the relevant property transaction’: Kastrounis v Foundouradakis [2012] NSWSC 264; BC201203381 at [119] per Hallen AsJ. The statutory language does not include the phrase ‘was or’ but, as explained by White J in Wardy v Salier [2014] NSWSC 473; BC201403070 at [137], a literal reading of NSW s 80(3) ‘emasculates the intended operation of the notional estate provisions evidenced by s 76(2)(a) and (c). It would leave s 76(2)(c) with no work to do’; hence the ‘better approach’ is to read the words ‘was or’ before the words ‘became held’ in s 80(3)(a) and (3)(b). NSW s 80(3). NSW s 81(1) (similar to NSW 1982 s 25). The reference to the ‘deceased transferee’, absent in the previous New South Wales legislation, was designed to overcome the decision in Prince v Argue [2002] NSWSC 1217; BC200208083: see 20.69. NSW s 81(2).

288. NSW s 82(1). 289. NSW s 82(2). 290. As to the circumstances where ‘administration’ is granted in respect of the estate of a deceased person, see NSW s 55(1). 291. [2002] NSWSC 1217; BC200208083. See QLRC, Report 58, pp 21–7; NSWLRC, Report 110, p 49. 292. NSW s 83(1) (equivalent to NSW 1982 s 26). 293. Here ‘principal party to the transaction’, in relation to a relevant property transaction, means the person who, under NSW ss 75 or 76 (see 20.60–20.63), enters into the relevant property transaction: NSW s 83(2). 294. Unless, for this purpose, the court assumes that the property in respect of which a family provision order can be made includes the notional estate as well as the actual estate, no notional estate order could ever be made, except perhaps as to costs, ‘because the question of what provision for an eligible applicant’s maintenance, education or advancement in life is proper, and whether the provision, if any, made is adequate, can only be assessed having regard to the assets available’: Wardy v Salier [2014] NSWSC 473; BC201403070 at [219] per White J. 295. NSW s 88 (equivalent to NSW 1982 s 28(1)). See, for example, Wardy v Salier [2014] NSWSC 473; BC201403070 (where White J found ‘special circumstances’ constituted by: the complexity of the estate; the uncertainty as to the value of the gifts under the will; and the fact that the deceased had built up assets in the family trust that could have been used to discharge the debts of the estate (at [222])). 296. The ‘substantial justice and merits’ are linked to the making, or refusing to make, an order designating property as notional estate: Smith v Woodward (SC(NSW), Macready M, 9 September 1994, unreported) BC9404874 at 20 (dealing with the former NSW 1982 s 27(1)(b)); Kastrounis v Foundouradakis [2012] NSWSC 264; BC201203381 at [127] per Hallen AsJ. 297. NSW s 87 (equivalent to NSW 1982 s 27(1)). 298. Petschelt v Petschelt [2002] NSWSC 706; BC200208458 at [68] per McLaughlin M; John v John [2010] NSWSC 937; BC201006070 at [117], [118] per Ward J; Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4; BC201400355 at [105] per Beazley P, with whom Meagher JA agreed (but cf at [125] per Basten JA). 299. Colantuono v Colantuono [2009] NSWSC 1445; BC200911720 at [80] per Ward J. See, for example, Button v Lynch [2002] NSWSC 1148; BC200207775 at [83] per McLaughlin M. 300. See, for example, Doyle v Smith (SC(NSW), McLaughlin M, 21 September 1994, unreported) BC9507989 at 9–10 (opining that it would not ‘be in any way proper for the court to interfere with … the security of the accommodation which the defendant [the 82-year-old surviving joint tenant] and the deceased expected that the survivor would have in the house property which they had acquired in their joint names with their joint assets’: at 10). Cf Inheritance (Provision for Family and Dependants) Act 1975 (UK) s 9(1) (which states that, where a person was immediately before his or her death beneficially entitled to a joint tenancy of any property, and an application is made for a family provision order within 6 months from the date on which representation with respect to the estate was first taken out, the court may, for the purpose of facilitating the making of financial provision for the applicant, order that the deceased’s severable share of that property be treated as part of the net estate, to such extent as appears to the court to be just in all the circumstances; for applications of this provision, which confers a broad discretion, see Jessop v Jessop [1992] 1 FCR 253; Powell v Osborne [1993] 1 FCR 797). 301. [2009] NSWSC 1445; BC200911720. 302. Colantuono v Colantuono [2009] NSWSC 1445; BC200911720 at [86]–[88].

303. D’Albora v D’Albora [1999] NSWSC 468; BC9902597 at [53] per Macready M. 304. Wentworth v Wentworth (CA(NSW), Samuels AP, Priestley and Handley JJA, 3 March 1992, unreported) BC9202033 at 46 per Priestley JA, Samuels AP and Handley JA agreeing. 305. [2005] NSWSC 82; BC200501012 at [74]. 306. NSW s 89(1) (similar to NSW 1982 s 27(2)). 307. NSW s 89(2) (similar to NSW 1982 s 28(2)). 308. ‘Property held by a person’ includes property in relation to which the person is entitled to exercise a power of appointment or disposition in his or her favour: NSW s 55(4). 309. NSW s 89(3) (similar to NSW 1982 s 28(4)). 310. NSW s 90(2) (similar to NSW 1982 s 28(5)). 311. Zirkler v McKinnon [2002] NSWSC 285; BC200201631 at [56] per Macready M. 312. NSW 1982 s 28(5)(d). 313. Dare v Furness (1998) 44 NSWLR 493 at 503–4; BC9803449 per Cohen J. 314. [2010] NSWSC 21; BC201000219 at [45]–[47]. See also Dare v Furness (1998) 44 NSWLR 493; BC9803449 (involving an infant applicant); John v John [2010] NSWSC 937; BC201006070 at [116] per Ward J (who made a notional estate order in favour of an applicant who suffered a psychological disorder, had depended on the security of accommodation provided by his parents for most of his life (it being his mother’s intention to allow him to remain living in the family home), did not have the benefit of legal advice until after the expiry of the limitation period, and had no other real assets). 315. Bearns v Bearns-Hayes (SC(NSW), Young J, 6 May 1997, unreported) BC9702186 at 16–17; Lewis v Lewis [2001] NSWSC 321; BC200101939 at [85] per Hodgson J; Cetojevic v Cetojevic [2006] NSWSC 431; BC200603290 at [79] per Campbell J (aff’d Cetojevic v Cetojevic [2007] NSWCA 33; BC200701029); Campbell v Chabert-McKay [2010] NSWSC 859; BC201005447 at [86] per White J. 316. See 20.52. 317. As to which see 17.25–17.44. 318. Campbell v Chabert-McKay [2010] NSWSC 859; BC201005447 at [87]–[89] per White J. See, for example, Lewis v Lewis [2001] NSWSC 321; BC200101939 at [87] per Hodgson J (where the applicant fell foul of the limitation period because he focused on the constructive trust case, while failing to appreciate that a different time limit applied to the family provision case; his Honour ruled that ‘[h]aving regard, in addition to the other matters considered on the extension of time, to the reasonableness of the [applicant’s] constructive trust claim (brought within time), the basis on which it failed, and the availability of an alternative remedy on much the same facts under the Family Provision Act, I consider that there are in this case special circumstances’; emphasis supplied). 319. [2010] NSWSC 859; BC201005447 at [92]. 320. [2016] NSWSC 605; BC201603499. 321. Lewis v Lewis [2001] NSWSC 321; BC200101939 at [85] per Hodgson J.

[page 721]

PART IV

Miscellaneous Matters

[page 723]

CHAPTER 21

A Statutory History of Wills in England and Australia England Anglo-Saxon period The Norman Conquest to 1540 1540 to 1837 1837 to 1945

21.3 21.4 21.5 21.9 21.15

Australia Influence of English statutory history on Australian succession law New South Wales Victoria South Australia Queensland Western Australia Tasmania

21.18 21.18 21.22 21.32 21.42 21.54 21.65 21.73

21.1 The way the law regulates succession of property upon death has a lengthy history. It includes the law of wills and the law of intestacy, being the main focus of this chapter, as well as the laws of trusts, charitable foundations and death duties. A will allows a person to exercise some control over who gets what property, whether land or chattels, after his or her death, and has always been governed by certain legal formalities. If a person dies without a will — that is, intestate — the law declares who will succeed to his or her property. For much of history most people had little property worth handing on to their

spouses, children, next of kin, friends or for public uses. In modern times the drafting of a will has become commonplace because, at least in Western countries, persons accumulate greater possessions than at any other time in human history. 21.2 This chapter gives an overview of the statutory law of succession in Britain as a prelude to addressing its counterparts in the six Australian colonies (and later states) to 1945. Substantive changes thereafter are noted in the main text. The changes in the law of succession reflect wider changes in society in areas such as land ownership, family structure, the position of women, and the ageing population, not to mention changing social and legal attitudes, including a willingness to reform the law. The subject is a substantial one, and only some of the more important statutory developments are highlighted in this chapter. Issues surrounding probate duties and escheated estates are only mentioned in passing, as these were revenue-raising laws. [page 724]

England 21.3 According to Holdsworth, the history of the law of succession in Britain was ‘complicated, not merely by the division into real and personal property, but by the existence of three sets of Courts which have all played their part in the development of the law’.1 The three courts — the King’s Court, the common law courts and the ecclesiastical courts — ‘administered, to some extent, different laws’ and ‘applied different rules of interpretation to the laws which they have administered’. The modern concept of the will characterised by revocability, amendment and secrecy was slow to develop in England.

Anglo-Saxon period 21.4 In the Anglo-Saxon period evidence about wills and their meaning is slim, but it appears that a struggle occurred over whether a man could deprive

heirs of his property by a form of transfer either inter vivos or at his death.2 He was free to dispose of his chattels as he desired and was encouraged to do so by the church, which hoped to benefit thereby.3 Land held without a written title could not be freely disposed of because the heir usually joined in the conveyance.4 Land held by deed, conversely, could be freely disposed of. Land was frequently transferred by a gift post obit (meaning taking effect after death), which was ‘as much a contract as a testament’.5 But reserving a life estate in the realty enabled the owner to retain the right of enjoyment until death, when the land passed to the donee.6 Another form of disposition was the deathbed disposition, usually supervised by the priest in conjunction with the dying man’s confession.7 The dying man gifted his chattels and sometimes his land to a friend (acting as an early executor) to be divided as he instructed. These forms of disposition were not secret, revocable or able to be changed. The ninth century saw the emergence of the Anglo-Saxon ‘cwide’, being a written instruction on how property should be disposed of after death.8 Though opinion differs over whether cwides were testamentary, they were clearly used by men of wealth and standing and their witnesses were ‘meant to help secure enforcement of the decedent’s last wishes’.9

The Norman Conquest to 1540 21.5 The Norman Conquest in 1066 shaped the English law of succession in two ways. One was the Norman form of feudalism, which influenced land law.10 It is unclear when land granted to knights or tenants became heritable. The second was William the Conqueror’s [page 725] ordinance, which separated lay and ecclesiastical courts. This led to succession to land being settled by judgments of the royal courts and succession to chattels by judgments of the church courts. The latter were based on canon and Roman law, and those courts retained their testamentary powers for centuries.

21.6 Succession to land was based on the principle of primogeniture, which recognised succession to freehold by the eldest son.11 If there was no son, by common law rules the daughter was the heir, but the common law rights of heiresses were whittled away over time.12 It was determined that the heir and the land were not required to pay the deceased’s debts unless the deceased expressly bound the heir in writing.13 The heir’s position was strengthened in other ways. By at least 1200 it was settled law that, while a person could give away his land while alive, he could not do so by a will or a deathbed gift. This rule not only strengthened feudalism, but also prevented the heir from being deprived of his inheritance. Some interests in land were not bound by the common law rule. For example, leaseholds were regarded as personalty and could pass by will.14 Younger sons and daughters could be provided for by inter vivos dispositions. Large landowners who wished to avoid feudal dues and to devise freehold land to younger sons or other parties found a way around primogeniture by making feoffments to uses. This enabled landowners to retain ‘their powers of ownership while living’ but allowed a third party to gain benefit from the land without being its legal title-holder.15 This way of devising land became very common as a way of avoiding the payment of feudal dues. Henry VIII attempted to recover his lost dues in a test case, Lord Dacre’s Case, in 1535, which found that feoffment to uses encouraged ‘collusion and fraud’. The practice was abolished by the Statute of Uses 1535, which declared that the legal title was held by the person for whom the use was created.16 The upshot was, it has been said, ‘the reintroduction of compulsory and unqualified primogeniture’.17 21.7 By the thirteenth century church courts had assumed exclusive jurisdiction over testamentary issues involving chattels, and kept formalities to a minimum.18 The church courts conducted probate to prove the testament by the executor named in the will, supervised executors and established procedures for administering estates. The church declared that dying intestate was as culpable as dying unconfessed.19 A testator was not allowed to distribute all of his chattels to whomever he pleased, but was guided by the principle of legitim. One-third of the chattels had to be left for his wife, one-third for his children and one-third as he pleased, usually for pious uses; if only a wife or children survived, they could take half.20 A testator without a wife or children

could dispose of all his personalty by testament. Such rules were followed by both the King’s Courts and the church courts.21 But the desire for freedom of testation grew from the thirteenth century, although the system of forced shares to the widow and children [page 726] remained accepted local custom in some areas until the seventeenth century.22 Between 1500 and 1700 most wills were made ‘within days or weeks of the testator’s death’ upon a realisation of being ‘about to meet their maker’.23 That the value of chattels for the vast majority of people before 1540 (and for some time later) was small may explain why intestacy was ‘far from uncommon’.24 Other reasons included ‘inertia, superstition or the fear of losing control over children’ or possessions.25 If a person possessed property of value and died intestate, claims to his goods could come from the king or his lord, the church, or his immediate family or next of kin.26 Of course it was probable that his lord distributed some share to the widow and children, but over time the lord lost ground to the church, which insisted on its right to distribute the chattels. In 1285 the Statute of Westminster II27 required the Ordinary28 or judge of the ecclesiastical court to pay the intestate’s debts and, as a result, the church probably gave the widow and children their customary share and retained the remainder.29 A married woman lost her right to ‘a life estate in one-third of her husband’s land if she deserted him’.30 21.8 Administration by the church court was found to be unworkable because the Ordinary was unable to sue, but could be sued ‘as if he had been an executor’.31 In 1357 the Statute on the Administration of Estates32 required the Ordinary to designate ‘the next and most lawful friends’ of the intestate to administer his property. This created the office of the administrator with powers and duties akin to those of the executor. The administrator had power to sue to collect assets, but could also be sued by creditors seeking payment of the deceased’s debts. Such actions were pursued in the King’s Courts, which recognised the administrator’s authority and the right of church courts to appoint him.33 The law remained unclear about how

to divide the surplus after the intestate’s debts had been paid. The practices of church courts were not systematised until the seventeenth century. Probate fees in ecclesiastical courts and mortuary fees paid to the local clergyman were a useful source of revenue.34 In 1529 they were fixed by statute and varied according to the size of the estate. According to Houlbrooke, before and during the English Reformation ‘most wills were proved not long after they were made’. In areas where access to courts was relatively easy the proportion of wills proved within 2 months of being made was ‘nearly always over 40 per cent’ and within a year ‘well over 70 per cent’.35

1540 to 1837 21.9 The Statute of Wills 154036 enabled the king to recover ‘some part of his rights of which the practice of settling lands to uses had almost entirely deprived him’ and the Court of [page 727] Wards was established to ensure that feudal dues of the Crown were collected.37 It allowed a testator to dispose of his property ‘at his will and pleasure’ and required land to be devised by an instrument in writing. The new statute did not require attestation by witnesses or signature by the testator or even writing in his hand. The instrument was revocable and inoperative until death, but did not apply to property acquired after the will was executed.38 Yet in other ways the wording of the new statute was so general and ambiguous that the Explanation of the Statute of Wills was passed 2 years later to explain its meaning.39 The latter allowed a form of estate planning by providing for the disposal of two-thirds of a tenant’s land not only by will but also ‘by any act or acts lawfully executed’ by the tenant ‘for the advancement of his wife, preferment of his children, and payment of his debts or otherwise’.40 Wrightson’s analysis of wills left in the village of Terling between 1550 and 1700 discloses a strong desire by testators to look after their immediate

families, but a ‘very restricted’ recognition of kin.41 Research shows that the number of wills made by wives increased noticeably in the mid-seventeenth century, perhaps demonstrating their increased independence and assertiveness.42 By 1540 the church courts continued to accept oral wills and dealt with probate, granted letters of administration, and supervised inventories and the payment of legacies and distributive shares.43 From the seventeenth century the authority of church courts diminished because they could only enforce their decrees by threat of excommunication or weak ecclesiastical sanctions. Lay courts issued writs of prohibition against some areas of ecclesiastical jurisdiction. Church courts also lacked the ability of the Court of Chancery to enforce discovery and accounting as a way of settling controversies arising from involved estates. As Holdsworth noted, ‘the control exercised by the court of Chancery over all questions of testamentary and intestate succession and over the administration of assets, was large’.44 21.10 The Statute of Distributions 167045 was an attempt to prop up the weakening testamentary jurisdiction of the ecclesiastical courts by requiring administrators to pay a bond to ensure performance of their duties,46 disallowing distribution until 1 year after the intestate’s death and taking account of the intestate’s advancements to his children to secure equalisation of shares.47 Most importantly, the statute prescribed a defined scheme of distributing chattels between the intestate’s widow and children, or next of kin.48 The widow received one-third, and the children two-thirds, with no provision for ‘pious purposes’. In the absence of children, the widow and the next of kin received half the chattels each. If no widow survived, the children received all chattels. Equality of distribution was also the aim of the Statute of Distributions 1685,49 which gave to the brothers and sisters of an intestate or the representatives of deceased brothers and sisters the right to share equally with the mother of the intestate.50 In 1690 the [page 728] House of Lords in Watts v Crooke51 ruled that collaterals of half blood ranked

equally with collaterals of whole blood in the same degree. 21.11 Another notable statute of the late seventeenth century was the Statute of Frauds 1677,52 which aimed to prevent frauds and perjuries by requiring written or other adequate evidence in certain transactions.53 It dealt with devises of land by requiring that they ‘be in writing, and signed by the party so devising the same, or by other person in his presence and by his express directions, and shall be attested and subscribed, in the presence of the said devisor by three or four credible witnesses’.54 Such wills were only revocable: ‘by another will or codicil executed in like manner’; by a written statement revoking the will signed by the testator before three or four witnesses; or if the testator destroyed or obliterated the document or directed someone else to do so in his presence. The foregoing has been described as ‘draconian’ and as a deliberate attempt ‘to change radically the free-and-easy regime of the Henrician Statute of Wills by introducing this and other strict formalities for wills of freeholds’.55 A study of wills litigation in the Prerogative Court of Canterbury reveals that the Statute of Frauds’ provisions on oral wills reduced litigation about their validity; as between 1661 and 1676 such causes represented 31.8 per cent of will contests, but from 1681 to 1696 only 3.6 per cent.56 No writing was necessary for distributions of chattels under £30 or if the testator was a soldier in military service or a mariner at sea.57 A testator in the last throes of dying was allowed to make an oral will of his goods in the presence of three witnesses in the house where he had resided for the preceding 10 days. But their testimony was not admissible to prove the distribution unless the oral testimony had been put in writing within 6 days of the oral will being made. Deathbed oral wills were not common by 1800. A written will of chattels could not be revoked or altered by words or an oral will ‘unless the words were, in the lifetime of the testator, committed to writing and proved by three witnesses to have been read to and allowed by the testator’. A witness who received a bequest from the testator was not regarded as a credible witness. 21.12 By 1670 the heir or the realty were still not required to pay a testator’s debts except where created by instrument under seal and made binding on the heir. The testator could evade his creditors by devising the land. In 1691

parliament sought to remedy this defect by passing the Statute of Fraudulent Devises,58 which extended ‘the remedy of the testator’s specialty creditor to the devisee of the land’.59 Another provision made an heir who alienated the land ‘liable on a specialty claim to the extent of the value received’, but the grantee and the land were not liable for the debt. Death duties were first introduced for revenue purposes in 1694 and from 1779 stamp duties (replaced by legacy duties in 1796) were levied on probates and copies of wills.60 21.13 The eighteenth century was not characterised by major changes in the law of wills, but a number of statutory amendments were introduced. An attempt to remedy various defects in the law was the general 1705 Act ‘for the Amendment of the Law and the Better Advancement [page 729] of Justice’,61 which included an amendment to the law of wills.62 It declared ‘the competency of witnesses called to prove a nuncupative will, when the estate exceeded the value of £30’ to be ‘the same as that which regulated the competency of witnesses upon trials at law’.63 Other amendments to the law of wills included the Wills Act 175164 declaring that devisees and legatees were competent witnesses to a will, but at the cost of losing their benefits thereunder.65 Creditors were also declared competent witnesses even where ‘the testator’s land was charged with the payment of his debts’. And an Act of 1741 directed that ‘when, on an intestacy, an estate per autre vie descended to an administrator, it should be applied and distributed as personal estate’. In the eighteenth century efforts were made to avoid the ‘serious inconveniences’ caused by ‘the conflicting jurisdictions’ of the common law courts, the Court of Chancery, the church courts and the court of Admiralty.66 The boundaries of the jurisdictions became clearer and there was greater coordination between the bodies of law with which they dealt. They agreed when ‘a writ of prohibition or an injunction could or could not be obtained to stop the exercise of jurisdiction’ by church courts or the Court of Admiralty. By the 1820s, however, three-fifths of all probates and administrations in England and Wales were still granted in the probate courts of Canterbury and

York and about two-fifths of ‘all testamentary causes were also being brought before the two provincial courts’, leaving very little work for consistory, archidiaconal and peculiar courts elsewhere, thus threatening their viability.67 21.14 Another noteworthy change traced by Houlbrooke was that by 1750 ‘the attorney had replaced the clergyman as the main source of professional expertise in matters testamentary’ and will-making was ‘regarded as a more private affair than had generally been the case two hundred years earlier’. Privacy was encouraged by the move from an ‘oral confirmation’ to ‘ratification by witnessed signature and seal’.68 With the rise of literacy came ‘greater understanding of, and immediate control over, the instruments’ by which people disposed of their property. As lawyers drafted more wills, the number of wills that were disputed declined.69

1837 to 1945 21.15 The early nineteenth century witnessed the first serious efforts to reform succession law. A major attempt at law reform was initiated by the appointment of the Real Property Commission in 1829, which produced four reports, three of which dealt with succession.70 The first report in 1829 dealt with inheritance, dower, and curtesy, the third in 1832 dealt with church rights, and the fourth in 1833 with wills and probate. A number of changes followed from these reports. In 1833 the Inheritance Act71 made a deceased’s land liable for all debts and abolished the rule excluding inheritance by ascendants and half-bloods, and the Dower Act72 limited a wife’s right to dower to the property to which her husband was ‘beneficially entitled at death’ unless he had ‘abrogated it, either by deed in his [page 730] lifetime, or in his will’.73 Perhaps the most significant change, and one also driven by judicial dissatisfaction with existing law,74 was the Wills Act 1837,75 which was enacted against a backdrop at the time of 10 different laws for regulating the execution of wills depending largely on the distinctions drawn

by the law between real and personal property, originating from jurisdictional struggles between the ecclesiastical and lay courts. The 1837 Act established uniform rules for executing, revoking, reviving and constructing wills of realty and personalty.76 It required all wills to be signed at the end of the instrument by the testator or by another person in the testator’s presence and at his request, and to be attested and signed by two or more witnesses in his presence.77 Marriage was deemed a revocation of a will.78 The Act also abolished the rule excluding the devise of after-acquired land, and provided that all wills would embrace all property and that the will would ‘take effect … immediately before the death of the testator unless a contrary intention’ was attested. The Wills Act aimed to ensure that the interests of heirs were protected in line with the testator’s intent. Although The Times described the legislation as ‘most useful’, Anderson argues that it left many issues ‘unaffected and, as the Act was prospective only, wills governed by the old rules continued to come before the courts for the rest of the century’.79 21.16 Parliament withstood fierce opposition from church courts to the loss of their testamentary jurisdiction and passed the Court of Probate Act80 in 1857.81 This vested jurisdiction to grant probate and administration in a new Court of Probate, though the Court of Chancery retained its power to administer deceased estates. Both realty and personalty now came within the probate procedure. Another distinction between personalty and realty was removed by the Land Transfer Act 1897.82 It vested land and chattels in the personal representative. This meant that a deceased’s land passed to his heir or devisee only on the direction or conveyance of the executor or administrator.83 Yet the number of people who wrote wills should not be exaggerated. In the early nineteenth century it was between 5 and 10 per cent and by 1910 rose only to 15 per cent.84 21.17 Primogeniture was abolished by the Administration of Estates Act 1925.85 This Act also provided a single uniform table for intestate succession of real and personal property. The interests of the surviving spouse came first, followed by children and then other descendants by representation. The Act abolished curtesy for estates in fee simple and dower.86 The Supreme Court of Judicature (Consolidation) Act 1925 placed ‘the procedural law of succession upon a rational uniform basis’ in other ways and repealed or codified much old legislation.

[page 731] The 1926 Legitimacy Act enabled illegitimate children to inherit the property of their subsequently married parents. Another notable reform in the area of testamentary freedom was embodied in the Inheritance (Family Provision) Act 1938, albeit one transposed from New Zealand,87 which authorised judges to order maintenance for dependants when a testator failed to provide for them in his will.88 By 1945 the English statutory law of succession was confined to a handful of statutes, and anomalies stemming from distinctions between real and personal property had been largely removed. Although all part of one High Court of Justice, court jurisdiction was divided into three divisions.89 The Probate, Divorce and Admiralty Division granted probates and letters of administration. The Chancery Division dealt with judicial administration of estates. The King’s Bench Division presided over litigation by and against personal representatives. Most English estates were administered without judicial intervention after a grant of representation because the law was clear and the parties’ rights were usually obvious. If judicial action was necessary in cases of dispute, the methods of settlement were ‘effective, though expensive’.90

Australia Influence of English statutory history on Australian succession law 21.18 According to William Blackstone, British settlers took the laws of England with them to a ‘settled colony’, where the land was regarded as empty with no owner; settlers saw English laws as their birthright and all were ‘applicable to their own situation and condition of any infant colony’ except those considered ‘neither necessary nor convenient’.91 By the New South Wales Act of 1823,92 the British Government sought to demonstrate that British law was the law of the Australian colonies of New South Wales and Van Diemen’s Land (Tasmania from 1855), both of which were granted a

Legislative Council and a Supreme Court.93 The Australian Courts Act 182894 confirmed that the ‘diverse body of rules and principles, called the law of England, was also the unalterable law of the Australian colonies’. The succession laws of the Australian colonies were heavily influenced by their English counterparts until ‘well into the twentieth century’.95 Local statutes on intestacy, will formalities, dower and the distribution of personal and real estate followed British practice, although later some New Zealand influences appeared.96 As most of the immigrants who came to Australia were from Britain, their understanding of the purpose and laws of wills was shaped by their upbringing. The British process of probate was followed in Australia. Once a will had been written, it was filed and procedures had to be followed in getting it admitted and approved officially before the property could be distributed and the estate closed. Until the property was finally distributed, an executor or administrator was appointed to administer the estate. An executor was normally named by the testator in his will. If no valid will existed, a court appointed an administrator to manage the estate. The executor or administrator, known [page 732] as the personal representative, drew up inventories, paid debts, sold property that had to be sold and then handed property or its proceeds over to the heirs. Some colonists felt so wedded to the procedures of their homeland that they still proved the wills of Australian testators in London.97 21.19 The law of wills nonetheless had to be adapted to suit the new conditions. The opportunity, if not always the actuality, of owning land was one obvious difference. Although squatters did their best to lock up the lands and deprive smaller settlers of land, government policy aimed to spread land ownership over the nineteenth century and land became a commodity. Primogeniture made less sense in Australia where land was plentiful and older sons could establish their farms well before their father died.98 Accordingly, primogeniture was soon abolished in the Australian colonies. As Australia was one of the richest countries in the world during the long boom of the late

nineteenth century, Australians enjoyed a higher standard of living than the British and many who died had worldly goods to pass on to the families they had left behind.99 Another difference was pointed out by the Supreme Court judges of New South Wales in 1843.100 In England few people died without having relatives to administer their estate or a clergyman who would fulfil a similar role. In New South Wales many died ‘in different parts of this extended territory, with its widely scattered population, without either relative or friend’, but owned ‘a considerable amount of property’. No one within 50 miles could keep an eye on the property or even knew any details about the deceased. The judges were concerned that the property would ‘be taken possession of, if not stolen or wasted, (as it assuredly would be) by the dissolute and dishonest’. They wished to acquire the power to administer both personalty and realty in the case of intestate estates, but realty fell outside the Intestates’ Estates Act 1847. The chaos and disruption caused by the gold rushes of the 1850s accentuated problems in the management of deceased estates.101 21.20 The principle of testamentary freedom for husbands (if not their wives), so strongly entrenched in Britain, was also strong in Australia. Atherton’s analysis of cases in New South Wales led her to conclude that ‘testamentary freedom was prized as an adjunct to property ownership and a valuable form of self-expression’ and ‘reinforced the dependence of the wife on the husband’.102 Australia had no established church and no ecclesiastical courts, although the Supreme Courts exercised an ecclesiastical jurisdiction.103 They were empowered to grant probate on wills and regulate the administration of the property of intestates according to ‘the practices and procedures of the diocese of London’.104 21.21 The following overview highlights a number of changes and amendments, mostly modest, in the statutory law of the Australian colonies and states to 1945 dealing with wills, intestacy, the restriction of testamentary freedom in the interests of surviving spouses and children, and how special circumstances such as wars necessitated a change to established rules and practices. [page 733]

New South Wales 21.22 The law of wills in New South Wales was firmly based on English statutes.105 In 1836, by the Imperial Acts Adoption Act, the 1833 English Act relating to dower was adopted. Dower provided ‘a widow with the use rights to one third of all the freehold lands that her husband had owned during their marriage’, but the 1836 Act laid down that it did not apply to lands disposed of by her husband by sale or by will.106 In 1850 dower was abolished for absentee wives by the Real Property (Dower) Act, which was designed to protect the interests of the purchaser. Dower, though thus weakened, was not yet abolished even in the face of criticism for interfering with ‘efficient conveyancing and “clean titles”’.107 As many died without writing a will in New South Wales, many of the early laws dealt with intestate estates. In 1838 the Intestates’ Estate Act was drafted by the judges to allow surplus funds from the estates of intestate persons to be invested in a savings bank rather than ‘lying idle in the hands of the Registrar’.108 This benefited the next of kin and creditors. The Act also applied to anyone who came to the court and applied for administration. The English Wills Act 1837 was adopted in New South Wales by the Imperial Act Adoption Act 1839.109 21.23 Following concerns expressed by judges, as noted above, in 1847 the Intestates’ Estates Act extended the power of the Curator of Intestate Estates to collect and administer intestate estates under the supervision of the judges.110 It required the registrar to apply to the court for an order to collect intestate estates, and once the order was made all matters connected with the estate ‘should be summarily entered upon, as in suit at Equity in the Master’s Court’ except in complicated cases or where the judges directed proceedings to be taken at law or in equity.111 This saved creditors of the estate the cost of filing a bill in equity to recover their claims. The property of a person who died beyond the jurisdiction of the court should be ‘taken possession of for the purpose of preventing its waste’ as was done with intestate estates. If an executor did not take out letters of administration within 6 months, the collector would give notice before taking custody of the property. Where parties did not name an executor to carry out their intentions, the collector would administer the estate. The Act also removed doubts that the collector

had the power ‘to sue for the recovery of money due or property belonging to intestate estates’ and empowered him to pay all debts owed by intestate estates. Small legacies lying idle in a savings bank for years could now be more easily recovered without taking out letters of administration, because after 6 months’ notice the collector could pay out of the estate any legacy under £30. The Intestates’ Estates Claims Act 1849 established a fund from which claims against the late Registrar-General John E Manning might be paid.112 Manning had become insolvent and could not pay the claims of parties. The Intestate Estates Act 1851 gave the Curator power to act quickly to prevent the effects of the deceased from being ‘purloined, lost or destroyed’ or where ‘great expense will be incurred by delay’.113 The Intestate and Insolvent Balances Act 1853 provided for the appropriation of unclaimed balances in such estates and saved ‘the right of individuals who could establish legal claims to such balances’.114 The Act gave [page 734] the Curator of Intestate Estates power to appropriate any residue and place the balance in the general revenue after 3 years as ‘miscellaneous receipts’, while continuing to protect ‘the legal rights of individuals’. 21.24 The Wills Execution Act 1853 provided that a will was valid even if it was signed on the side of the document and not as previously required at the foot.115 Two further changes were made to the law of wills. In 1855 the Mortgage Debts Act provided that debts incurred by a deceased could be paid out of real estate as well as personalty included in a will.116 More significant was the abolition of primogeniture by the Real Estate of Intestates Distribution Act 1862, which provided that the real and personal property of an intestate would pass to his ‘personal representatives’ to be divided ‘equally between all the nearest of kin … of both sexes’ rather than allow it to pass to the heirs-atlaw.117 Curtesy and dower were retained. On application from the administrator or others ‘beneficially interested’, judges could make orders relating to the sale and partition of the land ‘for the greatest advantage of all persons interested’.118 The Act, precipitated by a Legislative Assembly select

committee inquiry into the subject, was passed after some opposition was raised in the Legislative Council to violating ‘the fundamental laws of the empire’.119 21.25 New South Wales differed from the other colonies in periodically legislating for particular individuals. In 1852 Campbell’s Will Trustees Act did not change Robert Campbell’s will, but gave the trustees greater power over the conveyance of Hopewell estate as laid down in the will.120 The legislation was introduced after the Supreme Court refused to intervene because of legal entanglements associated with the estate. The Attorney-General warned against setting a ‘dangerous’ precedent and creating ‘a very unpleasant feeling out of doors’.121 The Act was passed after a Select Committee enquired into its provisions. But the Attorney-General was correct. Nearly 30 other statutes relating to individual estates were passed to 1886.122 Their provisions, which usually gave the trustees greater power to administer the estate, did not have general application. The advantage over a judicial ruling was that the estate was dealt with ‘in an open and public manner, which afforded one of the best safeguards … those concerned could possibly have’.123 But the aim was to correct ‘some error or mistake in the will’ or to adapt it to changed circumstances so as to give effect to the testator’s wishes.124 This statutory practice, however, became less common after 1886 as parliament was wary about being seen to write a new will as was alleged in the case of the Ono Earnshaw estate.125 [page 735] Duties on deceased estates were imposed by the Stamp Duties Act 1865.126 The Probate Duties Amendment Act 1899 imposed the same duties as in Victoria.127 During World War I, anyone who died on active service, or within 1 year of their return, was exempt from probate duty.128 21.26 From 1880 various changes were made to update the law. Following 1867 English legislation, the Debts of Deceased Persons Act 1881 prevented persons who had obtained judgment from being paid from the estates of deceased persons before creditors with a just claim had obtained judgment.129

The Act placed all debts, whether specialty or simple contract, on ‘an equal footing’, except debts secured by a mortgage, charge or other security. The Probate Act 1890 was introduced at the request of the Supreme Court judges, who helped draft it, and sought ‘to bring the practice of the Court into something like modernised form in granting letters of administration and probate matters’ as in the other Australian colonies.130 It had long been regarded as ‘unsatisfactory’ that the law was administered under the provisions of the Charter of Justice and the procedure of the old ecclesiastical courts.131 Such procedures were no longer operating in England. The Probate Act provided that real estate, like personal estate, vested in executors and could be used to pay debts.132 The production of probate would be ‘evidence of the will as in the case of personalty’. The husband or wife ‘on the death of the other intestate’ would be entitled to the same share in real or personal estate as the wife received in the personal estate of a husband who predeceased her. Curtesy and right of dower were abolished. Probate and letters of administration granted in other colonies or the United Kingdom would have the same force as if granted in New South Wales once they were resealed. A Court of Probate would be established, presided over by a Supreme Court judge ‘exercising jurisdiction in the Court of Equity’.133 To reduce costs, an amendment by the Legislative Council allowed all applications for probate or letters of administration to be made by petition to the judges ‘without application being made by counsel in open court’.134 The application had to be published in the government Gazette and one Sydney newspaper 14 days before being made.135 In 1893 the Probate Act of 1890 Amendment Act corrected ‘errors’ in the 1890 Act regarding the entitlements of a husband to the intestate estate of his wife and ‘cheapened the process of probate’ for small estates.136 It enabled application for probate or administration to be made direct to the registrar where the estate did not exceed £300 in value.137 This greatly reduced costs for small estates. The law was consolidated by the Wills, Probate and Administration Act 1898, which amalgamated the Probate Act 1890 and five other statutes, but made no change to the law. The Inheritance Act 1901 was another consolidating statute. Until 1900 the practice of the Supreme Court upon receiving an

application to allow the sale of an indebted estate was to place the relevant order in the order granting letters [page 736] of administration.138 But in Kelly v Toohey139 the Supreme Court declared this bad practice because two separate applications should have been made and the ruling placed hundreds of titles in ‘jeopardy’. Justice Walker of the Probate Court revised the law in the Administration (Validating) Act 1900 to validate orders made by the Supreme Court since 1862. 21.27 The Administration (Amendment) Act 1906 also contained amendments ‘to meet interpretations that have been given from time to time of the meaning of the Probate Act’.140 One was to enable the judges to delegate by rule of court to the Master in Equity ‘power to grant uncontested probate to any amount’ in place of the restriction of probate up to £1000 in value. This aimed to save the time of the judges and remove ‘a useless formality’. Recourse could be made to the judges where questions of law arose or probate was contested. Where the parent of an infant died intestate, maintenance was paid only if the total value of the estate did not exceed £500. The Act extended the law to empower the Probate Court to meet the maintenance and education costs out of the capital fund if the share of each child was up to £500, which removed the need for recourse to the costly Equity Court. After 6 years unclaimed money in the hands of the registrar was paid into consolidated revenue, but the Act required the registrar to hold onto any amounts after 6 years to meet the order of the Probate Court. In uncontested estates under £200 the registrar could grant an order to sell without formal application to the court.141 These changes were likewise targeted at saving time and avoiding unnecessary litigation. 21.28 Another area of modernisation was evident in the Public Trustee Act 1913, based on New Zealand and English counterparts.142 It created the office of Public Trustee, who was ‘constituted a corporation sole with perpetual succession and a seal of office’, and limited the fees it could charge. The Public Trustee acted as a trustee, an executor or administrator, a collector of estates

and an agent or attorney but, following New Zealand practice, could not act as a joint trustee. For estates under £500 in value, the trustee could be sole trustee without reference to the court; for those exceeding £500, a court order was required. If an estate was valued at under £100, the Public Trustee could pay the entire residue to the widow. The work of the Public Trustee grew dramatically from 188 estates in 1914 with an office of 18, to 8436 estates in 1936 with an office of 152, and handled millions of pounds without the possibility of giving security as required by the Act.143 That requirement was removed as unnecessary because all public services were guaranteed under the Treasury Guarantee Fund, and the Consolidated Revenue Fund was liable to pay the legal liabilities of the Public Trustee.144 21.29 Another major change, the product of agitation by women’s groups, also followed New Zealand and English precedents.145 This was the Testator’s Family Maintenance and Guardianship of Infants Act 1916, which as ‘a measure of justice’ required a man ‘to make adequate maintenance allowance by his will for his wife and family’.146 If he failed to do so, [page 737] the court could order that his estate should become chargeable for ‘an adequate allowance’ to maintain his widow and infants. The amount depended on the value of the estate and the size of the family. The Act also prevented a deceased man from placing his child under the guardianship of a stranger and made his wife ‘the natural guardian of her own children’ unless the court decided that she was unfit for that responsibility. Eminent lawyer Thomas Hughes thought that over the centuries the power of a man to do what he liked with his will had become ‘too wide’ and the Act placed a necessary restriction on that power.147 21.30 The final change dealt with the position of representation of an estate of a person presumed to have died due to an absence of 7 years, but who in fact remained alive.148 The Wills, Probate and Administration (Amendment) Act 1932, drafted after consultation with the Supreme Court judges, cleared up ‘uncertainty’ and provided for the revocation of the grant if the person

proved to be alive. The court was given powers relating to administration, to making orders for revesting the estate of the person supposed to be dead and to refunding death duties. The Act also enabled judges to delegate to the registrar the payment of allowances of commission or percentage to executors, administrators and trustees, which avoided time-consuming applications to the court. And the court was given power over estates beyond £500 when determining an infant’s share to maintenance, advancement and education. The Public Trustee replaced the Chief Justice as ‘the formal repository of the estate of deceased persons, thus obviating the necessity of making the Chief Justice a party to litigation in his own court’. Time and money were also saved by transferring wills deposited with the Registrar-General to the Registrar of Probate. 21.31 The provisions dealing with a man who was incorrectly presumed dead soon needed revision, and in such cases the Conveyancing, Trustee and Probate (Amendment) Act 1937 empowered the court to revoke probate and absolved the executor of any charges for work done correctly.149 If he paid a debt, that would stand. If a legacy was revoked in a later will, its recipient had to repay it. The Public Trustee’s power was also augmented by allowing a dealing with property to a value of £1000 without recourse to the court, so as to cheapen administration for small estates. Arising from representations made by women’s organisations in cases where a husband died intestate, the Act increased the amount a wife received from the estate in the absence of children from £500 to £1000. The wife was also given the right to petition the court under the Testator’s Family Maintenance Act for a further allowance.150 A further amendment arose from World War II. The Trustee and Wills (Emergency Provisions) Act 1940 enabled trustees on war service ‘to delegate the execution of their trusts’ and removed doubts that anyone under 21 who was on active service could make a will of personalty and realty without fulfilling the usual formalities.151

Victoria 21.32 New South Wales law applied while it controlled Victoria (then the Port Phillip district) to 1851. Thereafter Victoria had its own parliament and early legislation followed English statutes. The Wills Act Amendment Act

1852 removed the requirement that wills were only valid if signed at the foot.152 The Administration of the Estates of Deceased Persons Act Amendment Act in 1858 required an heir who inherited mortgaged lands to pay the mortgage [page 738] debt.153 In 1860 the Administration of the Estates of Deceased Persons Act Amendment Act provided for the appointment of a Curator of Intestate Estates, who was empowered to apply to the Supreme Court for an order to manage intestate estates.154 Anyone could appoint the Curator to administer his estate by will or codicil and the Curator could sue or be sued with leave of the court. This legislation was needed to cope with the conditions created by the gold rushes. A major change occurred in 1864 when the Real Property Statute abolished the law of primogeniture in Victoria, but confirmed that the male line was preferred.155 By the Real Property in Intestate Estates Act 1864 the Curator was given the power to distribute real property as well as personal property. Property was ‘rapidly amassed’ in Victoria and, if children were absent from the colony when a parent died intestate, they were ‘unable to protect their own rights’ until the Act was passed.156 21.33 In 1870 the Duties on the Estates of Deceased Persons Act empowered the Victorian Government to collect revenue from deceased estates.157 Victoria adopted simpler machinery than in England and New South Wales, requiring payment on all estates, whether real or personal, according to a schedule to the Act. Estates under £1000 paid only 1 per cent, which reduced the ‘great strain’ of probate duty on those estates. The Act was one way of obtaining revenue from the wealthy, who ‘contributed little, if anything, towards the expense of the Government which protected’ their property. The Act was amended the following year to include grandchildren in the definition of children and to make it clear that, if a man died intestate, his children only paid half the duty.158 The Act was regularly reviewed to vary the duties levied or the schedule or to deal with evasion.159

In 1872 the Deceased Persons Estates Administration Act dealt with the problem that real estate was not available to pay debts as was the case with personal estate.160 Following legislation passed in India and other British possessions, the Act ‘enabled the representatives of a deceased person to sell or mortgage real estate for the payment of debts’. The Real Property Statute 1864 had sought by ‘a cumbersome process’ to make ‘the real estate of a person dying intestate divisible among the next of kin in the same way as personal property’. In practice this required two orders from the court, one to administer personal property and one to administer real estate, which added to the costs of administering estates. The Deceased Persons Estates Administration Act 1872 provided for one administration in all cases and invested real and personal property in the personal representative, who would first pay the deceased’s debts before distributing the remainder ‘according to the trusts of the will, or, if there be no will, among the next of kin’. The Act also replaced ‘cumbersome suits’ in the Supreme Court with ‘the short simple process of a rule nisi and rule absolute’. The 1872 Act also tried to reduce expenses in other ways. Estates under £500 would obtain administration ‘as a matter of course without going to the expense of an application to the higher courts’. A number of improvements in practice were drawn from England, such as ‘the mode of enforcing security in the administration of [page 739] estates’. As for small estates under £50, the Curator was empowered to hand over to the widow or guardian of the children the balance of the estate without deducting fees for commission or ‘payment for trouble in administering’. Other estates that came under the jurisdiction of the Curator would also pay the same duties as those outside his jurisdiction. 21.34 In 1886 the Intestate Estates Act Amendment Act removed doubts about the Curator’s power to sell real property.161 The absence of this power in the case of suburban lands that often increased quickly in value had been ‘found very injurious to the interests of those beneficially concerned’. The Curator could also now act as a trustee and apply income to maintain an infant. Anyone whose claims on an estate had been rejected by the Curator

could not institute a proceeding after 6 months. Anyone claiming kinship and a share of a deceased’s estate who did not make that claim within 6 years was barred. Before distributing the estate the Curator was required to advertise three times in newspapers where the testator or intestate lived. 21.35 Supported by the Chamber of Commerce, the Probate Act 1886 dealt with the case of a person who had obtained, in any Australian colony or the United Kingdom, probate or letters of administration in an estate of a deceased with property in Victoria.162 The person might apply to the Registrar of Probate to attach the seal of the Supreme Court to such probate or letters of administration, which would have the same force as letters of administration granted in Victoria. This followed similar legislation in South Australia, Western Australia, New Zealand and Tasmania. The Act added the safeguard of requiring the person seeking the seal to publish his intention 14 days before he acted. The Act simplified the process and reduced the costs of a person who died in the other colonies or the United Kingdom, but had property in Victoria. It also allowed the executors or administrators to supervise the estate instead of delegating their functions to a nominee of the Supreme Court, which saved delay and expense and ensured that the deceased’s intentions were met. The reciprocal arrangements were extended to all British possessions by the Administration and Probate Act 1911, which followed the English Colonial Probate Act 1892 and the Tasmanian Probate (Foreign) Act 1893.163 The Probate Act 1886 was rendered inoperative because of the opposition of the Supreme Court judges, who did not make the necessary rules of practice.164 They believed that any person seeking to deal with property in Victoria under probate or letters of administration should give greater security for the performance of his duties.165 The judges desired ‘more stringent’ obligations to be placed on personal representatives residing outside Victoria, especially companies in the business of administering estates. Parliament did not share the judges’ concerns. The Probate Act 1887 re-enacted the 1886 Act with minor amendment.166 Probate or letters of administration could be lodged personally by the personal representative or by a proctor on his or her behalf. A seal could not be fixed until the personal representative entered into a bond and duties had been paid. The judges were now mandated to frame rules of practice.

21.36 The law was amended in various ways in the 1890s. The Administration and Probate Act 1891 provided that, if an illegitimate person died intestate leaving a widow but no child or no widow or child, the proceeds of the estate would remain in the Intestate Estates Fund until the Treasurer obtained an order directing what persons should receive funds and what [page 740] funds should fall into consolidated revenue.167 A more important amendment, based on English legislation, was introduced by the Intestate Estates Act 1896, which departed from the English Statute of Distributions by giving a childless widow of an intestate the entire estate.168 If children survived, the widow received the usual one-third as per the existing law. In England the law applied to estates valued at under £500, but in Victoria, where the cost of living was higher, this was raised to £1000. 21.37 One of the five judges of the Supreme Court held that, where uncultivated land was not liable to loss, waste, or injury and was ‘the only asset in the estate’, the Curator of Intestate Estates would not be granted letters of administration.169 The Administration and Probate Act Amendment Act 1898 provided that, if property included money in a bank account or uncultivated land, the Curator would not have to prove that it was exposed to loss, waste or injury. The Act also required a creditor to prove that his debt was £50 or more before he could apply for letters of administration ahead of the Curator. This removed the possibility of litigation from small creditors and gave the Curator power of administration of all estates under £300 in preference to a creditor; over £300, creditors with debts of at least £50 would receive preference if the estate would benefit from being administered by any such creditor. The 1898 Act, moreover, dealt with cases where a creditor had taken out administration and had paid all other creditors within 12 months, or where he had the estate in his own hands for 5 years whether or not other creditors were paid.170 In these cases the creditor was presumed to have administered the estate ‘to the utmost of his power or will’, and the Act gave the Curator as ‘a disinterested public officer’ the right ‘to apply for a rule appointing him

administrator’. Every creditor who obtained administration was required to file accounts. The Act added that a creditor who received administration should not give his own debts priority but must share with all creditors. Where a creditor had been negligent or had maladministered the estate, the Curator could apply to the court for his removal and the appointment of himself or some other person to administer the estate. If an intestate died without children and his estate was valued under £1000, the widow was no longer required to go to the unnecessary expense of obtaining a bond to administer, as she was the only person entitled to the estate. 21.38 Victoria was quick to follow a modified version of a 1900 New Zealand statute on family provision, passing the Widows and Young Children Maintenance Act 1906 ‘designed to make a man’s estate liable to help those for whom he was responsible in life’.171 In 1912, on the suggestion of the Commissioner of Titles, the Administration and Probate Act followed 1887 English legislation by enabling the executor of an estate ‘to get registered in respect of lands of the first testator, notwithstanding that a refusing executor survived’. The Commissioner could now accept the renunciation of ‘the nonproving executor’ without further formality.172 21.39 During World War I, when many young men under 21 died intestate and unmarried, their estate was given wholly to the father. This provision harked back to the English Statute of Distributions of 1670, but its unfairness to the mother was highlighted by the war. The Intestate Estates Distribution Act 1916 envisaged that the mother should share equally with the father [page 741] in the estate of an intestate child.173 Where that estate was valued at under £500 and no father, issue or wife survived, the entire estate went to the mother. Doubts had been raised in England about the validity of wills made by soldiers and sailors under 21 who died while on war service.174 The Wills (War Service) Act 1918 followed English precedent in removing those doubts in Victoria in the case of personal property and operated retrospectively. The principle was reaffirmed in the Wills (War Service) Act 1939, which also

provided for real estate to be included in the wills of all involved in war service.175 The Administration and Probate Act 1933 dealt with the confusion caused by the reappearance of a man thought to be dead.176 Following New South Wales legislation, it gave jurisdiction to the Supreme Court to grant probate of the estate of a person presumed to have died, validated grants of probate of administration when the person presumed to be dead was alive, and provided for the revocation of grants when the person thought to be dead reappeared. 21.40 In the Administration and Probate Act 1928, Victoria followed New Zealand in passing legislation for the maintenance of dependants of deceased persons, but over time the powers conferred by legislation in New Zealand and the other states became ‘considerably wider’ than in Victoria.177 This deficiency was rectified in the Administration and Probate (Testator’s Family Maintenance) Act 1937, which sought to ‘liberalise’ the law. It removed former restrictions by applying the Act to all children of any age, covering cases where a child was an invalid. Widowers were also covered by the Act. Widows were no longer restricted to one-third or one-half of the estate, but could receive as much of an estate as the court felt justified in granting. The court could grant periodic or lump sum payments and the ‘strict time limit’ was removed in favour of judicial discretion. Another unnecessary restriction was removed by the Administration and Probate (Caveats) Act 1937, which allowed the Registrar of Probates to issue probate or letters of administration where a caveat against a grant had expired or been withdrawn.178 This was not possible under previous legislation without an applicant being put to the expense of obtaining an order from the court. 21.41 Rather belatedly, under the Public Trustee Act 1939 Victoria followed New Zealand and the other Australian states in appointing a Public Trustee to apply for letters of administration of a deceased estate where no previous grant had been made and where no next of kin sought to apply.179 This was designed to remove the ‘very unattractive title’ of Curator of Estates of Deceased Persons and afford Victorians a more ‘efficient and economical administration’ of those estates. The Curator could only act as an executor or administrator, but the Public Trustee was given the additional powers to act as a trustee or agent and to control the affairs of anyone suffering from mental or

some other ‘disability’. But the Public Trustee could not act where a grant had been made, even if the estate was only partially administered or the personal representative had died, resigned or left the state.180 These deficiencies were remedied by the Public Trustee Act 1942, which enabled the Public Trustee to administer the unadministered [page 742] estates of deceased persons once the court was satisfied that the estate had not been completely administered and there was no capable or entitled person available to do so.

South Australia 21.42 In 1842 South Australia adopted the English Wills Act 1837, which remained the ‘principal’ statute on the subject until the current 1936 Act of the same name.181 Thereafter South Australian statutes on wills were regularly amended to make them assimilate with changes that had occurred in Britain.182 In 1862 the Wills Act Amendment Act introduced the recently changed English practice of allowing wills to be signed at the side of the document and not only at the foot.183 In 1865 the Deceased Persons Estates Act dealt with cases where a person ‘died with their estate subject to mortgage’.184 Preceding this Act, if a proprietor died intestate the mortgage was a charge on the real and not the personal estate. The Act was a transcription of the 1854 English Real Estate Charges Act (known as ‘Locke King’s Act’) and made the charge fall on the personalty. The heir would be required to pay the mortgage. 21.43 In 1867 the Testamentary Causes Act proceeded on the belief that it was, argued Attorney-General J P Boucaut, undesirable to have any ecclesiastical jurisdiction in South Australia, which in England had unnecessarily complicated the law in testamentary matters.185 This Act followed English precedent in establishing a Probate Court and adopting its rules. It also sought to reduce ‘the very heavy fees’ of ‘never less’ than 10 or 11

guineas on small estates of £100 or £200 to an ‘almost nominal fee’ not exceeding 3 guineas. The scale was based on the English Act and applied to estates between £50 and £500,000. By adopting the English Act with slight amendments Boucaut sought to benefit from the decisions of English judges.186 21.44 In 1867 parliamentarian and merchant Arthur Blyth attacked the law of primogeniture. He argued that, while the law of primogeniture prevailed in England, it was ‘entirely unsuited’ to South Australia. He thought that the members of a family, including their partners, who had contributed to the acquisition of wealth should receive ‘a fair share of it’.187 The ‘equitable principle’ of dividing personalty had ‘never been disputed’, but that was not the case with realty. Blyth’s pressure led to the Intestate Real Estates Distribution Act 1867, which abolished the law of primogeniture and brought real estate into the same category as personal estate.188 It dealt with realty in the same way as personalty in cases where no will was found until after the property had been distributed. Then any entitled person should receive property that had not been disposed of or, if disposed of, ‘should receive its value from the various persons who had obtained the benefit of the distribution’. Any undevised property would be divided according to the Statute of Distributions. Merchant, pastoralist and liberal land reformer Alexander Hay supported the change because it was ‘well known that under the present state of the law the eldest son was aggrandized on the death of the head of the family, while the younger [page 743] children who had assisted greatly in accumulating the property were pauperised’.189 Journalist and democrat J H Barrow argued that ‘[c]ommon humanity and natural reason’ justified the end of the ‘evil’ of primogeniture, and thus avoid a ‘territorial aristocracy’ in South Australia.190 21.45 Government derived revenue from probate and succession duties, and in the Probate and Succession Duties Act 1876 laid down procedures and rates for lodging probate or letters of administration, and providing details of the

deceased’s estate as well as any debts and liabilities.191 Penalties were imposed on personal representatives for not paying the correct duty. Disposal of most of one’s property ‘on the point of death’ was regarded as an attempt to evade the Act, but not if the disposal occurred some time before. The rates were based on English rates, which were ‘just in principle and moderate in amount’.192 No charges were made for property transferred between spouses because they were regarded in law ‘as one’. Succession duties were also not payable for a succession of less than £20 or an estate less than £50 in value. Alexander Hay thought it unfair to levy a heavier duty in cases of intestacy as in those cases the properties were often small and the families poor. Chief Secretary Henry Ayers favoured the English practice, reasoning that the additional one-half per cent would make people ‘more provident and careful to make their wills’. Yet other members thought it was difficult for the poor to make wills, especially when property changed hands so quickly and some persons had ‘a superstitious fear of making a will’. Ayers finally prevailed. In the decades that followed, and usually after long debates, regular amendments were made to the legislation in modifying the level of duties and dealing with problems of collection.193 Key issues involved not requiring small estates to pay too much in duties or large estates too little, and the extent to which the wealthy avoided or evaded paying duties, say, by dividing their property during their lifetime rather than writing a will, and how far they should be taxed when they did so.194 During both world wars succession duties could be remitted in certain cases, such as soldiers and nurses dying while on active service and, in World War II, members of the militia or home defence forces.195 For example, the Succession Duties (Killed in War) Act 1915, based on English law, remitted payment of duties of estates not exceeding £5000 in favour of the widow and lineal descendants or ancestor, but not collaterals. On estates over £5000 the amount paid was determined by an actuarial calculation. The provisions were retrospective. The Act was amended in 1919 to convert the discretion of the Registrar of Probate into ‘a duty to remit in certain cases’.196 Other cases could be remitted under special legislation. The Succession Duties (Peter Waite Benefactions) Act 1920 arose from a gift made by Waite in 1913 to the University of Adelaide of 134 acres of land and 4900 shares in Elder, Smith, & Co Ltd on the condition that the gift would be free from probate and succession duty.197 The duties were remitted.

21.46 In 1878 an Intercolonial Conference accepted the desirability of legislation providing that ‘probate of wills taken out in one colony may be registered in the Registry of Wills Office [page 744] in any other colony in cases of testators dying in one colony leaving personal property in other colonies’.198 The representatives of the deceased could obtain probate by producing probate issued by the court of the colony in which he died.199 In 1879 the South Australian Parliament agreed with the proposal and went further by enacting that probates and letters of administration ‘granted by any Court of competent jurisdiction in the United Kingdom’ should ‘be of like force as if granted in South Australia’. Also in 1879, at the request of Justice E C Gywnne, the Deceased Persons Debts Act adopted the English Administration of Estates Act 1869, which abolished the difference and priority of payment that existed between specialty and simple contract debts of deceased persons.200 The Act aimed to ‘enable all creditors to share alike in the estates of deceased persons’ rather than one creditor with a bond under seal claiming the entire estate; liens and mortgages were not affected.201 The law was prospective so as not to disadvantage existing bondholders because ‘settlements on daughters depended on personal bonds’. 21.47 As defects in the law of intestacy and ‘the waste of estates by unscrupulous administrators’ or ‘contentious claimants’ were a source of complaint, the Public Trustee Act 1881 attempted to deal with them.202 Influenced by the successful New Zealand model and supported by the Curator of Intestate Estates, it sought to ‘relieve members of the community from having responsibilities thrown upon them which they little knew the end of in being asked to become administrators or trustees’. The appointment of a Public Trustee would provide a solution. The Public Trustee would not ‘interfere with the administrators in intestate estates for twelve months, except to see that they were fairly administered’. After 12 months he would ‘take the shares of minors and absent relatives and invest them in Government securities’. The judges of the Supreme Court would supervise the work of the Trustee. Revenue derived from the 2.5 per cent levied on estates would go to

the Treasury. 21.48 Attorney-General W H Bundey explained that the law required a widow or other person entitled to apply for letters of administration ‘to obtain security, not only for the amount of the personal estate’, but since the 1869 amended Inheritance Act also ‘to become security for all the landed property that devolved upon the personal representative’.203 Real property now descended to the personal representative, and by virtue of that appointment vested in the personal representative, and was distributable in the same way that personal property was distributed before the Act was passed. This meant that bondsmen were responsible for much higher amounts once the Act was passed. Fraudulent or ‘careless’ administrators often deprived widows and children of their inheritance. When a personal representative was not appointed, the Curator of Intestate Estates controlled the estate, but the Public Trustee Act 1881 took state involvement further. The Public Trustee was given power over the interests of people with ‘unsound minds’ and, under the Trustee’s supervision, beneficiaries were given 12 months ‘to attain the estate or to secure the due proportion of it, and to obtain letters of administration’. Thereafter the widow was required to devolve administration to the Public Trustee, who would ‘take possession of the estate for the benefit of the minors or the absentees whose interests it might be necessary to protect’. The Act stopped ‘a judgment creditor in the estate of an insolvent who died intestate to obtain the whole proceeds’ and empowered the Public Trustee to distribute ‘according to the rule of distribution under the Insolvency Act’. The advantage of a [page 745] Public Trustee over private individuals was that the state guaranteed his honesty and his ability to consult the judges when construing wills. The proceeds of the estate would be invested for the benefit of the community and the estate. The proposed legislation only dealt with estates over £1000; smaller estates were dealt with under the Testamentary Causes Act.204 A later amendment added estates under £1000 for which a 5 per cent commission was charged.205

After a decade of operating, the Public Trustee had done much good work, but in 1890 an amendment to the Public Trustee Act modified some harsh provisions in the law regarding the sale of property of small value.206 This resulted in some poor families in country areas being forced to rely on charity. The amendment empowered the Public Trustee, when he felt that property was ‘about to be improperly dealt with’, to apply to a Judge in Chambers ‘for an order that the estate should be realised and the proceeds paid into his hands’. The judge could dispense with bonds for estates under £500 and, more generally, ensure that ‘no injustice was done’.207 21.49 In 1891 the law on the administration of the estates of deceased persons was consolidated and amended by the comprehensive Administration and Probate Act, which sought to simplify the law, facilitate the collection of duties and make other ‘desirable’ amendments, including for the protection of widows.208 Local Courts were established in Mount Gambier and Port Augusta for granting probates and letters of administration.209 One amendment, based on the English Intestate Estates Act 1890, provided that when a person died intestate the first £500 of property left should go to the surviving spouse, who would therefore be provided for. Other amendments ensured inheritance of property as between illegitimate children and their mothers so that the property should not fall to the Crown. When an estate was unable to pay creditors the person who obtained representation could recover his own debt to the exclusion of other creditors except for simple contract debts. The new Act required the executor to file a declaration that the estate was ‘insufficient to pay all debts before any were paid’ and ‘to share the property pro rata among the creditors’. The Supreme Court was given new power to postpone ‘the realisation of an estate or trust property’ and not realise estates quickly after a person died, which was especially detrimental in cases of farm property. The procedure for administrators of an estate seeking advice from the court was simplified. Other provisions related to the collection of duties. 21.50 The Wills Act Amendment Act 1895 adopted the 1861 English Wills Act to alter the law whereby the testator’s domicile at death determined distribution of his personal estate.210 Problems arose when the testator left the country as to ‘what country’s law should be applied to the construction of the will’. It was also costly to determine what the law was in the country ‘where the domicile was fixed’. The Act provided that a will written ‘in accordance with

the law in the place’ where it was executed, where the testator was domiciled or from where the testator had originated, should not be invalidated because the testator changed domicile. After 1900 various amendments were made to the law of wills to simplify and modernise the law. The Administration and Probate Act 1918 removed ‘certain anomalies’ before a [page 746] major consolidating statute was introduced.211 Sections 35 and 37 of the 1891 Act were ‘old, cumbersome and obsolete’. Their effect was to make ‘probate in common form, so far as it affects realty, … not of the same weight, as evidence, as probate, so far as affects personalty’. This made little sense in South Australia where realty and personalty devolved the same way for intestacies. The 1918 Act adopted New South Wales and Victorian legislation on this point and applied to probate ‘whether granted in common or solemn form’. Another amendment enabled the Public Trustee, with judicial permission, to refuse to act where ‘complicated, uncertain or risky’ trusts were involved. Subsequent amending legislation strengthened the powers and increased the responsibilities of the Public Trustee as confidence in the office’s work grew.212 As Labor member John Carr put it in 1922, if a private person was executor of an estate, he might die and require the writing of a new will, but the Public Trustee was ‘always there’.213 21.51 The Testator’s Family Maintenance Act 1918 was based on the belief that ‘man and wife were practically in partnership throughout life’ and when a man died his wife should ‘in common equity claim half the property of the partnership’.214 The Act provided that, if a testator disposed of property in such a way as to leave the wife, husband or children ‘without adequate provision for their maintenance, education, or advancement in life’, the court was empowered to order that provision for those purposes should be taken out of the testator’s estate.215 Illegitimate children were excluded until the Testator’s Family Maintenance Act Amendment Act 1943, based on the 1915 precedent set by Tasmania. An amendment in parliament required illegitimate

children to show an affiliation order proving the testator to be the father, or a court order requiring the testator to maintain the child or proof that he had lived with the testator and been maintained by him. The 1943 amendment also followed Western Australia by extending the provisions of the Act to include a woman who had been divorced from or by the testator and was, when he died, ‘receiving or entitled to receive maintenance from him’. Adopted children were also given the same entitlements as natural born children. The court was granted ‘full power’ to deal with each beneficiary ‘as it deems just’. These changes were recommended by the Supreme Court judges and followed ‘the principle that the testator must make reasonable provision for his wife and family out of his estate before attempting to dispose of it otherwise’.216 21.52 As for intestacy, a number of amendments were made. One was provided in the Intestate Succession (Mother’s Share) Act 1920.217 The existing law on the distribution of the estates of intestates was based on the Statute of Distributions of 1670 and 1685 and the Administration and Probate Act 1919. The former laid down ‘general principles’ to be applied to particular cases, which resulted in the development of ‘subsidiary rules’. One subsidiary rule was that, when a person died intestate without wife or issue but with surviving parents, the entire estate went to the father. The 1920 Act aimed to divide such estates equally between the father and the mother. 21.53 In 1936 the Wills Act was consolidated in a cautious way ‘to avoid, as far as possible, altering words and phrases which have been the subject of much judicial decision’, as Attorney-General S W Jeffries put it.218 Once again war proved a catalyst for change, and here prompted a change to the law that prevented a person under 21 from making a valid will. The Wills Act Amendment Act 1940 recognised that men over 18 but under 21 were serving in the [page 747] war and empowered them ‘to dispose of their property by will as if they were of full age’.219 It also allowed soldiers who had been invalided out and were in

poor health to make a will. Servicemen on active service were able to dispose of personal property as usual by ‘unattested writing or orally’, but disposing of real estate required a formal will.

Queensland 21.54 Queensland was part of New South Wales until 1859, and followed the law of wills and the rules of court of New South Wales because there was ‘no systematic mode of practice’ to prove wills and administrations.220 In 1867 the Queensland Parliament passed three statutes consolidating the laws relating to succession, probate and intestate estates.221 The Succession Act dealt with ‘dower, inheritance, succession, wills, powers, uses and remedies against realty’ and embodied the Statute of Distributions 1670 for the distribution of the estates of intestates.222 The Probate Act adopted English law and established a Court of Probate, giving Queensland judges the powers of English judges.223 The Curator of Intestate Estates Act also followed English law and gave the Curator the power to administer the real estate of intestates until the heir was found, or to sell the land for a ‘good’ price and place the money in the bank until the heir appeared. This would prevent the land from being ‘jumped’, a practice that caused ‘no end of trouble and litigation’.224 21.55 In 1877 complaints about the way the Curator administered intestate estates and an attempt to grapple with the real and personal property of intestates was made in the Intestacy Act.225 The law followed the English practice of primogeniture whereby the eldest son inherited the deceased’s real property, whereas personalty was divided between the widow and next of kin. In Queensland in 99 cases out of 100 working-class men did not make wills and the land descended to the eldest son, leaving the family of the intestate ‘without means of subsistence’. The Act abolished primogeniture and made realty divisible in the same way as personalty. The Intestacy Act made a number of other changes. Under that Act the Curator of Intestate Estates became a civil servant rather than an officer of the court, to be paid a salary rather than gain a commission on the value of the estate realised by him. The Curator would charge fees of 5 per cent on the value of the estate. He could not dispose of any land ‘without the consent of all

persons beneficially interested’ or without the order of the Supreme Court for 12 months after the testator’s death. Usually creditors obtained letters of administration simply to sell off property and recover their debts without considering the effect on the deceased’s family. The Act enabled the Curator to rescind letters of administration and grant new letters so that ‘all persons beneficially interested in the estate would be protected’. The difficulty of finding fit persons to act as executors or trustees was overcome by allowing the Curator to be appointed trustee. The Act also granted a married woman the power to make a will of any land she owned. Retention or concealment of a will with intent to defraud was punishable by fine or imprisonment. Finally, if devisees did not take possession of land within 6 months of the testator’s death or were infants, the Curator could ask them to show cause why he should not obtain an order to administer the land.226 The Act fitted in with the thrust of modern [page 748] legislation, being ‘to take the greatest care of those who could not take care of themselves’, noted the Attorney-General S W Griffith.227 For similar reasons doubts about whether the 1685 Statute of Distributions was in force were removed by the Succession Act Declaratory Act 1884, which held that the property of an intestate should be divided between his wife and children.228 The Married Women’s Property Act 1890 gave married women the same powers as anyone else to dispose real and personal property by will and removed the need for ‘acknowledgement’ where ‘the land to be dealt with was not held by the married woman to her separate use’.229 21.56 In 1898 the Queensland Parliament passed the British Probates Act, which was reciprocal to the Colonial Probates Act 1892 of the British Parliament. It recognised probates and letters of administration in those parts of the British Empire that recognised probates and letters of administration in Queensland.230 The Act created ‘a uniform system of sealing probate or letters of administration in the different places where the deceased might happen to leave property’. When probate from any reciprocating colony was produced in

Queensland, it would be resealed without the need to take out probate again or go through the formalities of proving death.231 The Act simplified procedure, saved time and reduced costs. 21.57 In 1886 the Succession Duties Act initiated the levying of succession duties in Queensland. It required succession duty to be paid before probate could be granted. This provision was found to create hardship because executors often had to make themselves personally liable to a bank to pay them, more duty was paid than was necessary and had to be refunded, and property had depreciated in value before it was realised. The Succession and Probate Duties Act 1892 adopted the fairer English system of requiring payment only after the parties had taken possession of the property.232 Various issues surrounding succession duties were dealt with in a series of Acts.233 As was the case in other Australian jurisdictions, the families of servicemen and servicewomen, including nurses, on active service who lost their lives in war or because of it received some remission of succession and probate duties.234 21.58 In 1895 the English Intestate Estates Act 1890 was adopted in Queensland via the Succession Act Amendment Act, which provided that the real and personal property of an intestate who died without children or grandchildren, where valued at under £500, should go to his widow and no longer be divided by halves between the widow and the next of kin however distant.235 Ministerialist parliamentarian J F G Foxton supported the measure because ‘we are a community of workers’ with ‘few wealthy men’ and ‘no leisured class’ as in [page 749] England and widows, who helped to accumulate the testator’s wealth, should be equitably provided for.236 21.59 After 1901 the law was amended several times in line with changes in England, other Australian states and New Zealand. The Succession Act 1906 followed New South Wales and Victoria in giving the surviving husband ‘no greater interest in his wife’s estate than she has by the law in his’.237 This meant that the husband no longer received all the real and personal property

from a wife who died intestate, but received one-third if children survived and one-half if no children or widowed mother survived. The Act to some extent protected the rights of children, but more pointedly, remarked Legislative Councillor Magnus Jensen, accorded with ‘the spirit of the time — with the desire to place men and women on equality’.238 In February 1919 three of the five Supreme Court judges decided in the case of the late Mary O’Mahoney that if the estate was worth £500 then her husband could only get £250, not all of it as the sponsors of the 1906 legislation intended.239 Lukin J suggested that the law be made clearer and the Succession Act of 1906 Declaratory Act 1919 was introduced to provide that a widower should have the first claim upon an estate in certain cases. 21.60 The New Zealand Family Protection Act 1908 was the inspiration for the Testators’ Family Maintenance Act 1914, which turned on the principle that the testator’s estate, no matter how it might be dealt with by will, was liable for the maintenance of either the wife or husband or, if neither survives, their children.240 The Act empowered the court, on the application of an interested party, to order within 3 months of the date of granting probate that ‘adequate’ provision be made out of the estate for the maintenance of the surviving spouse or children. The order could be conditional and maintenance could be paid as a lump sum or in instalments. The court also had discretion to refuse an order. The change was warmly supported in the Assembly for providing greater justice for families, but faced extensive criticism in the Council, not least for interfering with testators’ right to dispose of their property as they wished.241 21.61 Queensland was slow to appoint a Public Trustee, designated there as a Public Curator. The English, New Zealand and New South Wales legislation, and a New Zealand Royal Commission into the Public Trust Office in 1913, was drawn upon for the Public Curator Act 1915.242 Premier T J Ryan expected the new office to do ‘a great deal of good’ and, because it was selfsupporting from the revenue it raised, without being costly. If private trustees mismanaged or dishonestly administered an estate, the loss would normally fall on the beneficiaries, but under the new Act the state was the guarantor against loss. As there were no formalities and the Public Curator had power to act without court order, the result would be ‘cheaper procedure, speedier administration and public convenience’. The Public Curator would assume the

powers of the offices of Curator of Intestate Estates, Curator in Insanity, [page 750] Official Trustee in Insolvency and Principal Receiver in Insolvency. The court could consent to the Public Curator becoming ‘sole executor or administrator’ of an estate. 21.62 During World War II the law was further altered to meet changing circumstances. Under the Wills (Soldiers, Sailors and Members of the Air Force) Act 1940 any soldier, serving defence personnel and others actively engaged in the war effort, whether male or female, could make an oral will in the presence of two witnesses.243 The will could be revoked at the end of active service in writing before two witnesses. The new Act removed the restriction on males or females under 21 making a will. The Succession Acts Amendment Act 1942 provided for the case of two members of a family dying at the same time (commorientes).244 Courts found it difficult to determine who died first, but the Act presumed that ‘the senior of such persons … died first’ as laid down in the English Law of Property Act 1925. 21.63 More important changes were introduced in 1943 when an amendment to the Testators’ Family Maintenance Act allowed illegitimate children a share of the testator’s estate and an amendment to the Succession Acts extended that benefit to intestate estates.245 Illegitimate children were also given the same rights as legitimate children to inherit. When an illegitimate child died unmarried without a will or children, the Public Curator could, once parentage had been established, distribute the estate to the mother instead of escheating to the Crown. The amendment also brought the sections of the Succession Acts relating to the Statute of Distributions ‘in line with modern requirements and practice’ acting ‘purely on the basis of equity, justice and good sense’. The 1943 Succession Acts Amendment Act gave both husband and wife ‘equal rights in an intestate estate’ and ‘equal rights concerning the distribution of the estate’. It also amended the Statute of Distributions so that in an intestate estate the widow would get one-half and the children of the intestate would get one-half instead of one-third and two-

thirds respectively. If the child or children of the intestate had died, the half share would be divided among the children of the deceased child in equal shares. A further amendment provided that a widow received the first £1000 of an estate, not £500, and over £1000 the widow and child would share equally. If a child died, the estate would be divided equally between the mother and father instead of being escheated to the Crown. 21.64 Another significant amendment in 1943, this time to the Public Curator Act, related to the Public Curator as ‘trustee or next friend or representative of people who were not able to look after themselves’, such as persons in mental institutions and those living outside Queensland. The amendment empowered the Public Curator to protect the interests of these persons by requiring a caveat to be lodged in courts when delays occurred and, once probate was granted, to apply to the court ‘for an order directing the executor or administrator to bring the grant into the registry’. The Act enabled the Public Curator to apply to the court in cases where it appeared actions were not right, or the estate had been dissipated, or ‘where any question should be determined in the interests of the public’. The Public Curator would ensure that ‘justice and fair play’ were done to the citizens of Queensland.246 In 1945 amending legislation reduced the costs of administering small estates of £600 net and £1000 gross, and enabled the Public Curator ‘to deal more efficiently’ with small estates and money held by trustees. Costs were reduced also by providing for ‘the filing of an election’ instead of requiring a court order. [page 751] The Act was advantageous to beneficiaries of small estates by reducing administrative costs and simplifying procedures.247

Western Australia 21.65 A number of English statutes on the administration of estates were adopted in Western Australia. These included the Executors Act 1830, the

Debts Recovery Act 1830 and the Civil Procedure Act 1833 as well as the Dower Act 1833.248 In 1832 the Civil Court Act conferred special jurisdiction on the Civil Court of Western Australia ‘to grant Probates of Wills and commit Letters of Administration of the chattels and effects of persons dying’ in the colony.249 21.66 In 1839 Western Australia followed other colonies in adopting the English Wills Act 1837.250 Other English Acts were subsequently adopted. In 1855 the Wills Act Amendment Act followed English practice by providing that a will was no longer invalidated if it was not signed at the foot of the document. Other amendments also followed English practice. The Supreme Court Act 1861 empowered the Supreme Court, where an executor of a will neglected to obtain probate or the next of kin were not in the colony and ‘the effects of the deceased should appear to be liable to waste’, to direct the registrar ‘to collect the effects and to hold them’ until the court ordered their disposal.251 The Administration of Estates of Deceased Persons Act 1870 abolished the priority given to the payment between speciality and simple contract debts of deceased persons.252 The Administration of Estates of Deceased Persons Act 1879 rendered ‘more explicit’ the law on a testator or intestate dying leaving land or ‘other hereditaments, which at the time of his death might be mortgaged, including any lien for unpaid purchase money’.253 No sums could be ‘discharged or satisfied out of any other estate’ unless a testator ‘signified a contrary intention’.254 21.67 In 1883 the Intestate Estates Act extended the Supreme Court Act 1861 and dealt with intestates with no relatives who left land that was ‘misappropriated by persons who really had no right to take possession’ of the estate.255 When an executor neglected to obtain probate or the next of kin was absent from the colony, other persons obtained possession of the property and enclosed or ‘jumped’ it. This property became theirs after 12 years. The Act provided for the appointment of an officer of the Supreme Court called the Curator ‘to protect these unprotected estates’. When a person died without anyone to administer the estate, the Curator would apply to the Supreme Court to do so. If after 6 months no one appeared to claim the estate, the Supreme Court could appoint the Curator to discharge the powers of a personal representative. If after 6 years probate was not obtained and no one claimed the estate, it would be deemed an intestacy and, if after 12 years the

estate remained in the same position, it became the property of the Crown. [page 752] 21.68 In 1893 the Real Estates Administration Act, following ‘the tendency of modern thought’ in ‘new communities’, where land belonged ‘to the many and not to the few’, abolished the law of primogeniture for intestate estates.256 The Act sought justice for younger members of a family and divided land amongst all children in the same way as personalty except where the widow claimed her third of the estate. The distinction between real and personal property was abolished and ‘an heir-at-law … [became] an unknown person’. The change was welcomed as a way of distributing land because ‘the more landed proprietors we have the better will it be for the community and the more would the colony progress’.257 To reap some rewards from the growing wealth of the colony, especially on the goldfields, in 1895 the Duties on Deceased Persons Estates Act, in line with legislation in other colonies, imposed a small duty on deceased estates as a useful adjunct to the colony’s revenue.258 The duty did not apply to estates valued at under £1500 and penalties applied to anyone seeking to defraud the revenue. 21.69 The Administration (Probate) Act 1903 consolidated and simplified the law ‘very considerably’.259 Amendments to the law included applying the same rules when a husband or wife died intestate, affording to each ‘a greater preference’ than they received before. If the estate did not exceed £500, the husband or wife received it all. Otherwise the wife or husband received half the excess if no children survived, or one-third if children had survived. The Act also included provisions relating to the imposition of duties on deceased persons’ estates, which abolished the exemption on property under £1500 and required all estates to pay a duty ranging from 1 per cent on £1000 to 10 per cent on £50,000, which was close to the average duty imposed in the Commonwealth, and the spouse of children paid half the stated duty.260 The Act abolished the curtesy and dower rights of husbands and wives respectively. Further amendments of the Administration Act dealt mainly with issues surrounding the level of duties imposed on estates, how to deal with evasion and remission for servicemen killed in action.261

21.70 Although he had powers of protection over deceased estates, the Curator of Intestate Estates could not distribute amongst legatees or next of kin ‘until ordinary probate or letters of administration have been issued by the court to one of the persons entitled, other than the Curator’.262 Following inquiry of a select committee of the Legislative Assembly that highlighted delays and inadequate powers, the Curator of Intestate Estates Act 1918 granted the Curator ‘all the powers of an administrator under letters of administration, with or without a will annexed, to be exercised’. The Curator had power to intervene when he felt it appropriate, but still by order of the Supreme Court. The new procedure reduced the delay and cost of the existing procedure because the Curator no longer needed to get an order to collect, an order to administer and then probate or letters of administration for distribution. The Curator could also receive an advance from the Treasury to expedite proceedings. 21.71 Other changes to the law sought to rectify inequities. The Guardianship of Infants Act 1920 amended the law to guarantee ‘the Widow or Widower of a Testator an adequate Maintenance from the Estate of such Testator’ and to empower the court to provide for the [page 753] ‘maintenance, education, or advancement in life’ of any dependents.263 The Administration Act Amendment Act 1921 recognised that executors often had greater responsibilities and exposure to personal loss than administrators, and granted the court discretion to order payment of up to 5 per cent of the estate to an executor, putting him on par with an administrator.264 The Administration Act Amendment Act 1922 was based on principles of equality and justice, and allowed mothers to share the estate equally with fathers when their children died intestate instead of fathers receiving the entire estate.265 World War I prompted the change, when sons were killed at a young age, and was based on the Victorian Intestate Estates Distribution Act 1916.266 The Western Australian Act varied from the Victorian Act, though, after an amendment was passed during debate that made the change less ‘drastic’.267 If the estate was under £1000 both surviving parents shared it and, if one

survived, he or she received it all. If the estate exceeded £1000 and only one parent survived, the surviving parent would get half of the estate and the next of kin the other half.268 21.72 Western Australia’s status as the only state without a Public Trustee changed with the Public Trustee Act 1941, which vested wide powers similar to that found in legislation in other states and New Zealand.269 The Act ensured ‘stability of administration regarding investments’ and provided ‘machinery for the speedy and cheap administration of estates’ with minimal formality. The Public Trustee would be ‘a permanent social service’ and during the war would play an important role in protecting the interests of the families of soldiers who died on active service. Another change occasioned by the war was embodied in the Administration Act Amendment Act 1942. Some executors and administrators were serving in the war either inside or outside of Western Australia and could not administer the estates for which they were responsible. The Act allowed them to appoint an attorney to act in their place.270 Another noteworthy change was introduced in the Administration Act Amendment Act No 1 1945, which arose from the judges pointing out anomalies and difficulties for personal representatives from poorly worded sections of the principal Act.271 Administrators had power to sell the personal property of a deceased, but the new Act went further and, with the court’s permission, gave them ‘unfettered power to sell, lease, mortgage real estate for the purposes of administration in the same way as the deceased person, if alive, could do himself’. The Act only applied if the will did not address these matters and enabled the administrator to sell the land to pay off the deceased’s debts and funeral and testamentary expenses, which power executors already possessed. Another amendment allowed an executor or administrator to sell real estate for distribution on the written consent of beneficiaries or by order of the court.272 [page 754]

Tasmania 21.73

By the Wills Act 1840 Van Diemen’s Land adopted the English Wills

Act 1837 because it set out ‘plain, intelligible and definite rules for the execution of Wills’ and ensured ‘certainty and security’ in the transfer of property.273 The subsequent Wills Act 1852 sought to make the law on ‘the execution and effect of wills more certain’ by making a signature valid wherever it appeared on the will.274 21.74 The Estates of Deceased Persons Act 1853, based on New South Wales legislation, noted Attorney-General Valentine Fleming, was ‘only applicable to a new country’ like Van Diemen’s Land where there were fewer people to deal with deceased estates.275 It provided for cases ‘where a party refused to administer, and where there was no one to come forward as administrator’. The Act provided for an application to the Supreme Court in summary proceedings for an order to have ‘the same effect as Letters of Administration’. The Act also dealt with cases where executors did not wish to act, by empowering the newly created position of Curator of Intestate Estates ‘to move by attachment’. If a person died intestate, the Curator could apply to the court for an order to sell the property. The Act gave the Curator ‘considerable power’. For example, he could prevent property from being wasted or destroyed by applying to the court for an order to dispose or take possession of it. The Act sought ‘to preserve and protect the interests of legatees, creditors and … all parties interested’ in the estate of a deceased person. 21.75 The Relief of Executors and Administrators Act 1857 provided, noted parliamentarian and lawyer R W Nutt, relief from ‘some unnecessary liabilities’ and ‘effected an important and radical change’ in the law defining the duties and liabilities of executors.276 Under the Act, 1 year after a man’s death his executor or administrator was free to advertise for claims and, after satisfying valid claims, was allowed ‘to divide the surplus assets in his hands among the legacies or next of kin’ without applying to the court. Once this had been done and accounts had been filed with the registrar of the court the executor was ‘discharged from outstanding claims’. Outstanding claimants could seek redress from the legacies or next of kin but not the executor as had been the case. The cost of winding up an estate was set at £7 and, if it involved dealings in England, £12. Another change related to the agent in Tasmania for an executor in England, who was no longer required when obtaining administration in the Supreme Court to give his bond with at least two sureties

for ‘a sum equal to double the amount of the assets here’; the agent was also free from claims once he accounted and remitted to his principal. It was difficult to find ‘competent executors’ in the colony because of ‘changes in the position and circumstances of parties, and by removals from the colony’. Nutt realised that an executor undertook ‘a troublesome and responsible duty’ in proving a will without payment and that the community must ensure that ‘honest and cautious men should not be deterred’ from accepting the role. The Act reduced the cost and delay in proceedings. 21.76 Fees and charges were levied on probates of wills and letters of administration by the Probate and Administration Fees Act 1858.277 The Succession Duty Act 1865 raised further revenue for the government, but it proved unworkable and was replaced by the Probate Duties Act 1868.278 From 1904 multiple Deceased Persons’ Estates Duties Acts levied charges on deceased estates for the public revenue.279 [page 755] 21.77 Various statutes simplified the law from 1860. Under the Estates of Deceased Persons Act 1861 the residue of a personal estate was to be paid and distributed as directed by a judge, who would not require ‘strict legal proof of the right or title of any party claiming to be entitled to any share of such Estate’.280 The Estates of Deceased Persons Act 1869, a transcript of a recent English Act, was designed to remove difficulties arising from the payment of mortgage moneys out of personal estate.281 Also a transcript of an English Act was the Specialty and Simple Contract Debts of Deceased Persons Act 1870, which ensured that creditors’ claims would not henceforth be defeated by the distinction between simple and specialty contract debts, which would no longer have ‘precedence in the order of payment’.282 21.78 The Deceased Persons’ Estates Act 1874 followed the lead of other colonies in abolishing primogeniture in cases of intestacy, ‘the offspring of a comparatively barbarous age’, commented Attorney-General W R Giblin.283 The custom was not appropriate for ‘a young country’ like Tasmania, where some land was held by many people and was unjust to women who were barred

from receiving land. Giblin thought that ‘equity and justice’, especially for the wives who had toiled with their husbands to make land profitable, demanded its abolition. The Act provided that real and personal property would be divided equally ‘free from all claim to dower’ by the widow of the intestate. The widow would receive one-third and the children two-thirds. The ‘old custom’ of curtesy was also removed. The Act gave an executor power, once he received a court order, to sell the land of an intestate to pay off his debts and save thousands of pounds in equity suits for recovery. Giblin thought the Act would simplify the law, remove ‘a great deal of litigation’, meet ‘the requirements of the colony’ and bring Tasmanian law into ‘conformity with the legislation of the adjoining colonies’. 21.79 Minor amendments to the law were made in the 1880s. The Deceased Persons Estates Act 1881 followed English law in providing for the right of ‘an executor renouncing probate to cease as if he had not been named in the will’ and requiring that anyone making an affidavit of the value of a personal estate to file an inventory with it.284 The Act was designed to make it easier to appraise property and ‘to prevent dishonest men evading probate’.285 The Deceased Persons Estates Act 1885 again aligned with an 1877 English law, which had been passed after the decision of the Master of the Rolls that previous legislation ‘did not affect leasehold property or mortgages’.286 The problem was overcome in the Tasmanian Act by adding the words ‘whatever tenure’, which extended the law to leasehold property. The Act also placed the real estate of a married woman who had died intestate in the same position as that of a man who had died intestate.287 The Executors and Administrators Relief Act 1898 shortened the time executors and administrators were required to give when issuing notices and advertisements for winding up estates.288 21.80 The Intercolonial Probate Act 1879 provided for cases where probate that had been granted in other colonies would be valid in Tasmania once resealed there.289 This removed barriers in Tasmania to obtaining ‘legal documents in an inexpensive and expeditious manner’. The Probates (Foreign) Act 1893, based on an 1892 English Act, gave recognition in Tasmania of probates and letters of administration granted in the United Kingdom or any of the Australian colonies.290

[page 756] 21.81 The Deceased Persons Estates Management Act 1903 required the Curator of Intestate Estates to be appointed by the government, not the judges, and his fees to be paid to the state.291 The Probate Amendment Act 1906 provided for cases where ‘direct evidence’ of a testator’s death was unavailable.292 Application could be made to a judge for probate or letters of administration ‘as conclusive evidence’. 21.82 Following New Zealand legislation, the Distribution of Intestates Property Act 1906 distributed real and personal property to the wife, husband or children of an intestate, but not to other relations.293 If a wife but no children survived, she received her husband’s entire intestate estate.294 Otherwise the wife received one-third and the children two-thirds of the estate. The same provisions applied to the intestate estate of a deceased wife. If the child of an intestate had already died, any surviving children would take that child’s share of the estate. If the intestate estate was under £1000, it went to the widow or widower exclusively. 21.83 A poor state like Tasmania probably needed the Testator’s Family Maintenance Act 1912 more than other states. The Act provided that a testator ‘should not leave his wife and children penniless by devising by will all his property to others’. It empowered the Supreme Court to make an order for their support out of the estate ‘where left without sufficient to live on, or otherwise as a judge deemed proper’.295 The Testator’s Family Maintenance Act 1915 prevented any person who was a member of a friendly society from not providing for his wife and family, and gave children ‘born out of wedlock’ equal rights as ‘legitimate children under the will or testamentary writing of a deceased father or mother’.296 This reversed the trend of Tasmanian law, which was ‘very severe on children born out of wedlock’.297 The Testator’s Family Maintenance Act 1933 enabled an order regarding the estate of a testator to be varied ‘if the Court thought fit’.298 21.84 Another important innovation, based on New Zealand legislation, was embodied in the Public Trust Office Act 1912, which made the Curator of Intestate Estates the Public Trustee until such time as business increased and a Public Trustee could be appointed.299 The first task was to deal with

unclaimed lands, but ultimately the interests of smaller estates would be protected. The work of the office expanded gradually and the office’s powers to act were soon strengthened by subsequent statutes beginning with the Public Trust Office Act 1919.300 These included powers over the estates of minors and, in lieu of obtaining probate, filing an election to administer estates under £400. Other provisions dealt with the powers of the Public Trustee acting as an advisory or custodian trustee and protecting persons with disabilities.301 The Public Trust Office Act 1930 expanded the Trustee’s power to include administering intestate estates and removed the limitation on giving public notice of his intention of making application only in estates over £400.302 The Public Trust Office Act 1933 empowered the court ‘to order that an estate should be distributed among those considered justly and equitably entitled to it’, which ensured that the interests of justice would be served.303 21.85 Doubts over the validity of conveyances by administrators of estates were removed by the Deceased Persons’ Estates Act 1913.304 Tasmania followed other Australian states in [page 757] passing the Wills (Soldiers and Sailors) Act 1918 to allow anyone on active service under age 21 to make an oral will of both personal and real estate.305 A will made while on active service could be revoked, amended or replaced, and the Act’s provisions were retrospective. The Act was reaffirmed by the Wills Act 1942.306 21.86 The need for a reprint of statutes provided an opportunity for the consolidation and revision of statutes relating to wills in the 1930s.307 Following recommendations from the Statutes Revision Board, the Wills Act 1934 made various minor amendments to the Imperial Wills Act 1837 as adopted by the local Wills Act 1840 and the Wills (Soldiers and Sailors) Act 1918.308 The Administration and Probate Act 1935 was a consolidating measure.309 The Administration and Probate Act 1943 was based on the recommendations of the Law Reform Committee and protected deceased estates by setting down the rights of action by and against personal

representatives.310

1.

2. 3. 4. 5. 6.

7. 8.

9. 10. 11. 12. 13. 14. 15.

16. 17. 18.

19. 20. 21. 22.

W S Holdsworth and C W Vickers, The Law of Succession: Testamentary and Intestate, Lawbook Exchange, New Jersey, 2004, p 2; see also A Reppy, ‘History of the Law of Wills and Testaments in England’ (1927–28) 16 Georgetown LJ 194. W S Holdsworth, A History of English Law, 4th ed, Methuen, London, 1936, vol 2, pp 90–9; see also D Whitelock (ed), Anglo-Saxon Wills, Cambridge University Press, Cambridge, 1930. F Pollock and F W Maitland, The History of English Law Before the Time of Edward I, 2nd ed, Cambridge University Press, Cambridge, 1923, vol 2, p 317. Holdsworth, History of English Law, vol 2, note 2 above, pp 94–5. R M Helmholz, The Oxford History of the Laws of England: Volume 1: The Canon Law and Ecclesiastical Jurisdiction From 597 to the 1640s, Oxford University Press, Oxford, 2004, p 53. Pollock and Maitland, History of English Law, note 3 above, p 315. It should be noted that, beyond land, bequests of a wide range of objects were made: see L Tollerton, Wills and Will-Making in AngloSaxon England, York Medieval Press, Woodbridge, 2011, Ch 5. Pollock and Maitland, History of English Law, note 3 above, pp 318–19. Pollock and Maitland, History of English Law, note 3 above, pp 319–20; M M Sheehan, The Will in Medieval England: From the Conversion of the Anglo-Saxons to the End of the Thirteenth Century, Pontifical Institute of Medieval Studies, Toronto, 1963, pp 24–47. Helmholz, Oxford History of the Laws of England, note 5 above, p 53. T E Atkinson, Handbook of the Law of Wills and Other Principles of Succession Including Intestacy and Administration of Decedents’ Estates, 2nd ed, West Publishing, St Paul, 1953, pp 12–13. Pollock and Maitland, History of English Law, note 3 above, pp 262–70. E Spring, ‘The Heiress-at-Law: English Real Property Law from a New Point of View’ (1990) 8 Law and History Review 273 at 276. Pollock and Maitland, History of English Law, note 3 above, p 346. Atkinson, Handbook, note 10 above, p 14; A W B Simpson, A History of the Land Law, 2nd ed, Clarendon Press, Oxford, 1986, pp 138–9. W S Holdsworth, A History of English Law, 3rd ed, Methuen, London, 1945, vol 4, pp 420–4; J H Baker, The Oxford History of the Laws of England, Vol VI, 1483–1558, Oxford University Press, Oxford, 2003, pp 570, 653. For a masterly analysis of the significance and consequences of the statute, see Baker, Oxford History of the Laws of England, note 15 above, pp 671–9. Baker, Oxford History of the Laws of England, note 15 above, p 679. Pollock and Maitland, History of English Law, note 3 above, pp 331–3; M C Mirow, ‘Last Wills and Testaments in England 1500–1800’ (1993) 60 Supp, Recueils de la Société Jean Bodin pour l’histoire comparative des institutions 47 at 64. Pollock and Maitland, History of English Law, note 3 above, p 356. Pollock and Maitland, History of English Law, note 3 above, p 349. Pollock and Maitland, History of English Law, note 3 above, pp 352–3. Helmholz, Oxford History of the Laws of England, note 5 above, p 425; M M Sheehan, ‘The Bequest of Land in England in the High Middle Ages: Testaments and the Law’ in L Bonfield (ed), Marriage,

23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40.

41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53.

Property and Succession, Duncker and Humblot, Berlin, 1992, pp 327–38. R B Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500–1860, Cambridge University Press, Cambridge, 2005, p 36. Helmholz, Oxford History of the Laws of England, note 5 above, pp 405–6. R A Houlbrooke, The English Family 1450–1700, Longman, London, 1984, p 232. Pollock and Maitland, History of English Law, note 3 above, pp 357–63. 13 Edw I, St 1. The Ordinary was originally a diocesan bishop to whom the Crown delegated authority in relation to an intestate’s chattels: see 11.73, 11.74. Holdsworth, History of English Law, note 2 above, vol 3, pp 550–54; Pollock and Maitland, History of English Law, note 3 above, pp 360–1. Helmholz, Oxford History of the Laws of England, note 5 above, p 562. Holdsworth, History of English Law, note 2 above, vol 3, pp 568–9. 31 Edw 3, St 1, c 11. T E Atkinson, ‘Brief History of English Testamentary Jurisdiction’ (1943) 8 Missouri L Rev 107 at 112–14. Mirow, ‘Last Wills and Testaments’, note 18 above, p 69. R Houlbrooke, Death, Religion, and the Family in England, 1480–1750, Clarendon Press, Oxford, 1998, p 98. 32 Hen 8, c 1. Holdsworth, History of English Law, note 2 above, vol 4, p 466. Pollock and Maitland, History of English Law, note 3 above, pp 314–16. P Vines, ‘Land and Royal Revenue: The Statute for the Explanation of the Statute of Wills, 1542– 1543’ (1997) 3 Aust J of Leg Hist 113. N G Jones, ‘Estate Planning in Early-Modern England: “Having” in the Statute of Wills 1540’ in J Tiley (ed), Studies in the History of Tax Law, Hart Publishing, Oxford, 2004, p 229 (which refers to a tenant by knight’s service). K Wrightson, ‘Kinship in an English Village: Terling, Essex 1550–1700’ in R M Smith (ed), Land, Kinship and Life-Cycle, Cambridge University Press, Cambridge, 1984, p 332. M Prior, ‘Wives and Wills, 1558–1700’ in J Chartres and D Hey (eds), English Rural Society, 15001800: Essays in Honour of Joan Thirsk, Cambridge University Press, Cambridge, 1990, pp 201–25. Atkinson, ‘Brief History’, note 33 above, pp 115–18; Helmholz, Oxford History of the Laws of England, note 5 above, p 400. W S Holdsworth, A History of English Law, 2nd ed, Methuen, London, 1937, vol 6, p 653. 22 & 23 Car 2, c 10. In Australia this remains other than in Queensland, South Australia and Tasmania: see 11.60–11.67. Holdsworth, History of English Law, note 2 above, vol 3, pp 560–2; Mirow, ‘Last Wills and Testaments’, note 18 above, p 52. As to the modern scheme of distribution on intestacy, see Chapter 9. 1 Ja 2, c 17. Holdsworth, History of English Law, note 2 above, vol 3, pp 561–2. (1690) Show 108; 1 ER 74. 29 Car 2 c 3. Holdsworth, History of English Law, note 2 above, vol 6, p 385; Mirow, ‘Last Wills and Testaments’, note 18 above, pp 71–2.

54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65.

66. 67. 68. 69. 70. 71. 72. 73. 74.

75. 76. 77. 78. 79.

80. 81. 82. 83.

Statute of Frauds 1677 (UK) s 5. D E C Yale, ‘Witnessing Wills and Losing Legacies’ (1984) 100 LQR 453 at 453. L Bonfield, Devising, Dying and Dispute: Probate Litigation in Early Modern England, Ashgate, Farnham, 2012, p 73. Holdsworth, History of English Law, note 2 above, vol 6, p 385. Provision for soldiers’ and mariners’ wills remains in the Australian Capital Territory and South Australia: see 4.23–4.29. 3 W & M, c 14. Atkinson, Handbook, note 10 above, pp 20–1. Mirow, ‘Last Wills and Testaments’, note 18 above, p 69. 4 & 5 Ann, c 3. W S Holdsworth, A History of English Law, 2nd ed, Methuen, London, 1938, vol 11, p 519. Holdsworth, History of English Law, note 2 above, vol 11, p 526. 25 Geo 2, c 6. Holdsworth, History of English Law, note 2 above, vol 11, p 594. This so-called ‘interested beneficiary rule’ has been a fixture of Australian wills enactments, albeit one that has in more recent times been either abolished or mollified: see 4.53–4.60. W S Holdsworth, A History of English Law, 2nd ed, Methuen, London, 1938, vol 12, p 697. Outhwaite, Rise and Fall of the English Ecclesiastical Courts, note 23 above, pp 90, 98. Houlbrooke, Death, Religion and the Family, note 35 above, pp 108–9. Outhwaite, Rise and Fall of the English Ecclesiastical Courts, note 23 above, p 97. Outhwaite, Rise and Fall of the English Ecclesiastical Courts, note 23 above, pp 129–56; Simpson, History of the Land Law, note 14 above, p 274. 3 & 4 Will 4, c 106. 3 & 4 Will 4, c 105. Mirow, ‘Last Wills and Testaments’, note 18 above, pp 51, 83; Simpson, A History of the Land Law, note 14 above, p 277. See, for example, Matthews v Warner (1798) 4 Ves 186 at 210; 31 ER 96 at 106 per Loughborough LC (who, against the backdrop of ecclesiastical courts admitting to proof wills that were neither signed nor sealed by the will-maker, nor witnessed, his Lordship remarked that ‘if such things are to be established as wills, it loudly requires the interference of the legislature to prevent such latitude in that respect, as makes the disposing of all a man’s fortune the most slight and trivial act, attended with much less of form, solemnity, and precision, than any act he could do with regard to any part of his property during his life’). 1 Vict, c 26. J H C Morris, Theobald on the Law of Wills, 11th ed, Stevens and Sons, London, 1954, pp 709–15. These requirements remain as part of modern Australian wills statutes (albeit now with a judicial power to dispense with formalities): see 4.5–4.20. This remains as part of modern Australian wills statutes: see 5.23, 5.24. J S Anderson, ‘Succession, Inheritance, and the Family’ in W Cornish et al, The Oxford History of the Laws of England: Volume XII: 1820–1914, Oxford University Press, Oxford, 2010, p 23; The Times, 5 April 1837, p 4. 20 & 21 Vict, c 77. Outhwaite, Rise and Fall of the English Ecclesiastical Courts, note 23 above, pp 170–2; Atkinson, Handbook, note 10 above, pp 21–2. 60 & 61 Vict, c 65. Morris, Theobald on the Law of Wills, note 76 above, pp 384–5, 692.

84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95.

96.

97. 98. 99. 100. 101. 102. 103. 104. 105. 106.

107. 108. 109. 110. 111. 112. 113.

Anderson, ‘Succession, Inheritance and the Family’, note 79 above, pp 9–10. Atkinson, Handbook, note 10 above, pp 21–2. See equivalents in Australia at 9.22. See 15.5. Morris, Theobald on the Law of Wills, note 76 above, p 94. Atkinson, Handbook, note 10 above, p 23. Atkinson, Handbook, note 10 above, p 23. B Kercher, An Unruly Child: A History of Law in Australia, Allen and Unwin, Sydney, 1995, p xi. 4 Geo 4, c 96. Kercher, An Unruly Child: A History of Law in Australia, note 91 above, pp 69–75. 9 Geo 4, c 83. R F Croucher and P Vines, Succession: Families, Property and Death, Text and Cases, 4th ed, LexisNexis Butterworths, Australia, 2013, p 27; and see the summary to circa 1884 in J D Wood, The Laws of the Australasian Colonies as to the Administration and Distribution of the Estate of Deceased Persons, Stevens and Sons, London, 1884. For an account of the innovative nature of New Zealand’s approach to restrictive testation from around 1900, see J Dainow, ‘Restricted Testation in New Zealand, Australia and Canada’ (1938) 36 Mich L Rev 1107. M Andrews-Reading, ‘A Further Look at the Australian Probate Records in the Prerogative Court of Chancery’ (2009) 39 Descent 58. J Ferry, ‘The Will and the Way: Inheritance Practices and Social Structure’ (1999) 1 Journal of Australian Colonial History 122 at 135. K Buckley and T Wheelwright, No Paradise for Workers: Capitalism and the Common People in Australia, 1788–1914, Oxford University Press, Melbourne, 1988. A R Buck, ‘Torrens Title, Intestate Estates and the Origins of Australian Property Law’ (1996) 4 APLJ 89 at 95. Buck, ‘Torrens Title, Intestate Estates and the Origins of Australian Property Law’, note 100 above, at 96. R F Atherton, ‘Expectation Without Right: Testamentary Freedom and the Position of Women in 19th Century New South Wales’ (1988) 11 UNSWLJ 133 at 147. A C Castles, An Australian Legal History, Law Book Company, Sydney, 1982, pp 91–2, 196, 501. Castles, An Australian Legal History, note 103 above, p 141. See G L Certoma, The Law of Succession in New South Wales, 3rd ed, LBC Information Services, Sydney, 1997, pp 15–17. N E Wright and A R Buck, ‘The Transformation of Colonial Property: A Study of the Law of Dower in New South Wales, 1836 to 1863’ (2004) 23 U Tas L Rev 97 at 97; Atherton, ‘Expectation Without Right’, note 102 above, at 150–1. Atherton, ‘Expectation Without Right’, note 102 above, at 153. Sydney Monitor, 11 June 1836, p 3. J M Bennett, A History of the Supreme Court of New South Wales, Law Book Company, Sydney, 1974, p 133. See R Pollard et al, ‘Administration of Intestate Estates’ (2016) 43 Aust Bar Rev 142 at 151–6. Sydney Morning Herald, 15 July 1847, p 2 (J H Plunkett, Attorney-General). Sydney Morning Herald, 27 September 1849, p 2; Bennett, A History of the Supreme Court of New South Wales, note 109 above, p 137. Intestates Estates Act 1851, recital.

114. 115. 116. 117.

118. 119. 120. 121. 122.

123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137. 138. 139.

Sydney Morning Herald, 18 August 1853, p 2 (E D Thomson, Colonial Secretary). 17 Vic No 5. 19 Vic No 1. Sydney Morning Herald, 18 June 1862, p 3 (Dr J D Lang); 17 September 1862, p 4; see also A R Buck, ‘“This Remnant of Feudalism”: Primogeniture and Political Culture in Colonial New South Wales with Some Canadian Comparisons’ in J McLaren, A R Buck, and N E Wright (eds), Despotic Dominion: Property Rights in British Settler Societies, UBC Press, Vancouver, 2005, p 169. 26 Vic No 20 ss 3, 4. Sydney Morning Herald, 10 December 1862, p 3 (J Campbell); 13 December 1862, p 8; 18 December 1862, p 3. Sydney Morning Herald, 16 July 1852, p 2; 8 December 1852, p 2. Sydney Morning Herald, 7 August 1852, p 5 (J H Plunkett, Attorney-General). The statutes were Wilson’s Estate Act 1861, Gibson’s Estate Act 1862, Cohen’s Estate Act 1873, Isler’s Estate Act 1873, Underwood’s Estate Act 1873, Bishopthorpe Estate Charge Act 1874, Cohen’s Estate Act of 1873 Amendment Act 1874, Underwood’s Estate Act of 1873 Amendment Act 1874, Rogers’ Estate Act 1874, Basset-Darley Estate Act 1877, Cohen’s Enabling Act 1879, Moore’s Estate Act 1879, Redmond’s Estate Act 1879, Archibald Thompson’s Estate Act 1880, Bates Estate Act 1881, Rogers’ Estate Act 1881, Hill’s Estate Act 1881, Heley’s Estate Act 1883, Earnshaw’s Estate Act 1883, Rotton’s Estate Act 1883, Cohen’s Estate Act 1884, Dillon’s Estate Act 1884, Hutchinson’s Estate Act 1884, Serisier’s Estate Act 1884, Bell’s Estate Act 1886, Bodalla Estate Act 1886, Ennis Estate Act 1886, Moore Estate Act Amendment Act 1886 and Moorebank Estate Act 1886. New South Wales Parliamentary Debates, vol 2, 1881, 20 October 1881, p 1675 (J Robertson, Minister of Public Instruction). New South Wales Parliamentary Debates, vol 2, 1881, 20 October 1881, p 1675 (John Lucas). New South Wales Parliamentary Debates, vol 9, 1883, 11 April 1883, p 1408 (Alexander Campbell). 29 Vic No 6; Wood, Laws of the Australasian Colonies, note 95 above, p 71. Sydney Morning Herald, 22 December 1899, p 3; see also the Companies (Death Duties) Act 1899 (NSW). New South Wales Parliamentary Debates, vol 62, 1915, 15 December 1915, p 4774 (J D Fitzgerald, Vice-President of the Executive Council). New South Wales Parliamentary Debates, vol 1, 1881, p 287, 22 July 1881 (W H Pigott). Sydney Morning Herald, 27 June 1890, p 3 (A J Gould, Minister for Justice); 10 July 1890, p 3 (Gould); Bennett, A History of the Supreme Court of New South Wales, note 109 above, pp 139–41. Bennett, A History of the Supreme Court of New South Wales, note 109 above, p 133. Sydney Morning Herald, 10 July 1890, p 3 (A J Gould, Minister for Justice). Sydney Morning Herald, 3 October 1890, p 3 (G B Simpson, Attorney-General). Sydney Morning Herald, 6 December 1890, p 7 (A J Gould, Minister for Justice). Bennett, A History of the Supreme Court of New South Wales, note 109 above, p 141. New South Wales Parliamentary Debates, vol 66, 1893, 6 June 1893, p 8029; Sydney Morning Herald, 8 June 1893, p 3 (T M Slattery, Minister for Agriculture and Secretary for Mines). Sydney Morning Herald, 11 May 1893, p 3; Bennett, A History of the Supreme Court of New South Wales, note 109 above, p 142; 56 Vic No 30 s 11. New South Wales Parliamentary Debates, vol 105, 1900, 19 September 1900, pp 3087–8 (B R Wise, Attorney-General). (1900) 21 LR (NSW) Eq 33.

140. New South Wales Parliamentary Debates, second series, vol 22, 1906, 15 August 1906, pp 1144–5 (C G Wade, Attorney-General). 141. New South Wales Parliamentary Debates, second series, vol 23, 1906, 19 September 1906, p 2155 (J F Hughes, Vice-President of the Executive Council). 142. New South Wales Parliamentary Debates, second series, vol 52, 1913, 25 September 1913, pp 1861–7 (D R Hall, Minister for Justice and Solicitor-General); P Polden, ‘The Public Trustee in England 1906–1986: The Failure of an Experiment?’ (1989) 10 J Leg History 228. 143. New South Wales Parliamentary Debates, second series, vol 147, 1936, 11 March 1936, pp 2508–9 (L O Martin, Minister for Justice). 144. New South Wales Parliamentary Debates, second series, vol 147, 1936, 18 March 1936, p 2638 (J Ryan, Assistant Minister). 145. R F Atherton, ‘The Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW): Husband’s Power v Widow’s Right’ (1990) 6 AJLS 97. 146. New South Wales Parliamentary Debates, vol 64, 1916, 3 August 1916, pp 523–5 (D R Hall, Attorney-General and Minister for Justice). 147. New South Wales Parliamentary Debates, vol 65, 1916, 30 August 1916, p 1248. 148. New South Wales Parliamentary Debates, second series, vol 136, 1932, 1 December 1933, p 2544 (L O Martin, Minister for Justice). 149. New South Wales Parliamentary Debates, second series, vol 153, 1938, 14 December 1938, p 2674 (L O Martin, Minister for Justice). 150. New South Wales Parliamentary Debates, second series, vol 157, 1938, 30 November 1938, p 3104 (L O Martin, Minister for Justice). 151. New South Wales Parliamentary Debates, second series, vol 162, 1940, 9 October 1940, pp 228–9 (V H Treatt, Minister for Justice). 152. 15 Vic No 24; 18 Vic No 19; The Argus, 3 February 1855, p 4. 153. Victorian Hansard, vol 4, 1858–9, 3 November 1858, p 202. 154. 24 Vic No 99. 155. 27 Vic No 213, Pt 1. 156. Victorian Hansard, vol 10, 1864, 18 May 1864, pp 399–400 (A Michie, Attorney-General). 157. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 11, 1870, 16 December 1870, pp 551–3 (A Michie, Attorney-General). 158. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 13, 1871, 1 November 1871, p 1725. 159. For different statutes raising revenue and imposing or exempting charges on deceased estates see the Duties on Estates Acts 1876 and Duties on Estates Acts 1889; see also the Intestate Estates Relief Act 1889, which reduced costs and facilitated proceedings for small estates, the Administration and Probate Acts in 1892, 1903, 1916, 1921, 1926, 1942, the Administration and Probate Duties Acts from 1903 to 1914, 1929 and from 1931 to 1945, the Probate Charges Act 1903, and the Administration and Probate (Charities) Act 1934. 160. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 14, 1872, 27 August 1872, pp 1124–6 (J W Stephen, Attorney-General). 161. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 52, 1886, 31 August 1886, pp 1258–9 (H Cuthbert, Minister for Justice); 14 September 1886, p 1430 (Cuthbert). 162. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 51, 1886, 28 July 1886, pp 917–18 (A McLean). 163. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 127, 1911, 25 July 1911, pp 257–8 (J D Brown, Attorney-General).

164. For the long debate on the issues, see Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 54, 1887, 27 July 1887, pp 561–75. 165. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 55, 1887, 19 October 1887, p 1723 (H J Wrixon, Attorney-General). 166. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 56, 1887, 2 November 1887, pp 1874–5 (F T Sargood). 167. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 68, 1891, 18 December 1891 (J G Duffy, Postmaster-General). 168. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 78, 1895–96, 22 October 1895, pp 2684–5 (A Wynne); vol 80, 1895–96, 31 January 1896, pp 5176–9. 169. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 88, 1898, 12 July 1898, pp 213–15 (H Cuthbert, Solicitor-General); 26 July 1898, p 441; vol 90, 1898, 15 December 1898, pp 3864–5. 170. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 90, 1898, 23 November 1898, pp 3085–7 (I A Isaacs, Attorney-General). 171. The Argus, 23 August 1906, p 7 (D Mackinnon); 15 November 1906, p 9. 172. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 130, 1912, 31 July 1912, p 481 (J D Brown, Attorney-General). 173. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 145, 20 December 1916, p 3695 (H S W Lawson, Attorney-General). 174. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 148, 1918, 29 October 1918, pp 1844–5 (A Robinson, Solicitor-General). 175. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 208, 1939, 1 November 1939, p 1903 (H S Bailey, Attorney-General); see also the Administration and Probate (War Service) Act 1943 (Vic). 176. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 192, 1933, 4 October 1933, pp 1727–9 (R G Menzies, Attorney-General). 177. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 201, 1937, 14 July 1937, p 105 (A L Bussau, Attorney-General). 178. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 201, 1937, 26 August 1937, p 922 (A L Bussau, Attorney-General). 179. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 207, 1939, 5 July 1939, pp 89–97 (H S Bailey, Attorney-General). 180. Victoria, Parliamentary Debates, Legislative Council and Legislative Assembly, vol 213, 1942, 7 July 1942, pp 79–80; 21 July 1942, pp 305–8; 15 September 1942, pp 1036–8. 181. South Australia, Official Reports of the Parliamentary Debates 1936, vol 2, 24 September 1936, p 1593 (S W Jeffries, Attorney-General). 182. British laws were adopted in most areas: see A C Castles and M C Harris, Lawmakers and Wayward Whigs: Government and Law in South Australia 1836–1986, Wakefield Press, Adelaide, 1987, p 182. 183. South Australia, Debates in the Houses of the Legislature During the Third Session of the Second Parliament 1862, 6 August 1862, c 611. 184. South Australia, Debates in the Houses of the Legislature During the First Session of the Fourth Parliament, 1865, 10 May 1865, cc 158–9 (A Blyth); 17 May 1865, cc 238–9. 185. South Australia, Debates in the Houses of the Legislature During the Third Session of the Fourth Parliament, 1867, 6 September 1866, cc 334–5; 20 September 1867, cc 416–18. 186. South Australia, Debates in the Houses of the Legislature During the Third Session of the Fourth Parliament, 1867, 17 October 1867, cc 653–4.

187. South Australia, Debates in the Houses of the Legislature During the Third Session of the Fourth Parliament, 1867, 23 August 1867, cc 437–8 (A Blyth). 188. South Australia, Debates in the Houses of the Legislature During the Third Session of the Fourth Parliament, 1867, 10 October 1867, cc 954–61. 189. Ibid, c 956. 190. South Australian Register, 23 October 1867, p 2. 191. South Australia, Debates in the Houses of the Legislature During the Third Session of the Eighth Parliament, 1876, 22 August 1876, cc 828–34. 192. South Australia, Debates in the Houses of the Legislature During the Third Session of the Eighth Parliament, 1876, 5 September 1876, cc 961–2 (H Ayers, Chief Secretary), 964–5 (Ayers), 968; 6 September 1876, cc 1002–3 (A Hay). 193. See, for example, the amendments to the Probate and Succession Duties Acts in 1881 and 1885, and Succession Duties Acts in 1915, 1917, 1919, 1923, 1927, 1928, 1929, 1932, 1933, 1934, 1935, 1936, 1939 and 1943. 194. South Australia, Debates in the Houses of the Legislature During the Second Session of the Thirteenth Parliament, 1891, 17 November 1891, c 2008. 195. South Australia, Official Reports of the Parliamentary Debates 1915, vol 1, 21 October 1915, p 1509; vol 2, 9 November 1915, p 1822; see also South Australia, Official Reports of the Parliamentary Debates 1940, vol 2, 5 November 1940, pp 1180–1; South Australia, Official Reports of the Parliamentary Debates 1942–43, vol 2, 27 October 1942, pp 1034–5. 196. South Australia, Official Reports of the Parliamentary Debates 1919, vol 2, 11 November 1919, pp 1729–31. 197. South Australia, Official Reports of the Parliamentary Debates 1920, vol 1, 9 September 1920, pp 651–2. 198. South Australia, Debates in the Houses of the Legislature During the Second Session of the Ninth Parliament, 1879, 24 June 1879, c 228 (W H Bundey, Attorney-General). 199. South Australia, Debates in the Houses of the Legislature During the Second Session of the Ninth Parliament, 1879, 3 July 1879, c 325; 10 July 1879, c 381. 200. South Australia, Debates in the Houses of the Legislature During the Second Session of the Ninth Parliament, 1879, 10 June 1879, c 82; 24 June 1879, c 224; 1 July 1879, c 277. 201. South Australia, Debates in the Houses of the Legislature During the Second Session of the Ninth Parliament, 1879, 10 July 1879, cc 379–80; 2 September 1879, cc 825–6. 202. South Australia, Debates in the Houses of the Legislature During the Third Session of the Ninth Parliament, 1880, 10 June 1880, cc 110–11 (W H Bundey, Attorney-General); 29 June 1880, cc 248–50. 203. South Australia, Debates in the Houses of the Legislature During the Third Session of the Ninth Parliament, 1880, 17 June 1880, cc 162–6. 204. South Australia, Debates in the Houses of the Legislature During the Third Session of the Ninth Parliament, 1880, 22 June 1880, c 191. 205. South Australia, Debates in the Houses of the Legislature During the Third Session of the Ninth Parliament, 1880, 19 October 1880, c 1493. 206. South Australia, Debates in the Houses of the Legislature During the First Session of the Thirteenth Parliament, 1890, 30 July 1890, c 640. 207. South Australia, Debates in the Houses of the Legislature During the First Session of the Thirteenth Parliament, 1890, 28 October 1890, c 1729; 19 November 1890, c 2063. 208. South Australia, Debates in the Houses of the Legislature During the Second Session of the Thirteenth Parliament, 1891, 18 December 1891, c 2648.

209. South Australia, Debates in the Houses of the Legislature During the Second Session of the Thirteenth Parliament, 1891, 11 August 1891, cc 697–700; 3 November 1891, c 1815. 210. South Australia, Debates in the Houses of the Legislature During the Third Session of the Fourteenth Parliament, 1895, vol 1, 21 August 1895, cc 1022–3 (G Ash). 211. South Australia, Official Reports of the Parliamentary Debates, 1918, 5 November 1918, pp 1188– 91 (H N Barwell, Attorney-General). 212. See, for example, the Administration and Probate Acts of 1922 and 1932. 213. South Australia, Official Reports of the Parliamentary Debates, 1922, vol 1, 10 October 1922, p 879. 214. South Australian Register, 4 October 1918, p 4 (A H Peake, Premier). 215. South Australia, Official Reports of the Parliamentary Debates, 1943, 29 August 1943, p 342 (S W Jeffries, Attorney-General); 1 December 1943, p 792 (A L McEwin, Chief Secretary). 216. South Australia, Official Reports of the Parliamentary Debates, 1943, 21 October 1943, p 532 (C Abbott). 217. South Australia, Official Reports of the Parliamentary Debates, 1920, vol 1, 2 September 1920, p 569. 218. South Australia, Official Reports of the Parliamentary Debates, 1936, vol 2, 24 September 1936, p 1593. 219. South Australia, Official Reports of the Parliamentary Debates, 1940, vol 1, 8 August 1940, pp 244–5 (S W Jeffries, Attorney-General). 220. Queensland Parliamentary Debates, 2nd series, vol 5, 1867, 22 October 1867, p 544 (C Lilley). 221. Queensland Parliamentary Debates, 2nd series, vol 6, 1867–8, 21 November 1867, p 626. 222. Queensland, Official Record of the Debates of the Legislative Assembly, vol 43, 1884, 21 August 1884, p 389 (C E Chubb); W A Lee, Manual of Queensland Succession Law, Law Book Company, Sydney, 1975, p 164. 223. Queensland Parliamentary Debates, 2nd series, vol 5, 1867, 22 October 1867, p 544 (C Lilley). 224. Queensland Parliamentary Debates, 2nd series, vol 5, 1867, 22 October 1867, p 544 (C Lilley). 225. Queensland, Official Record of the Debates of the Legislative Council, vol 22, 1877, 20 June 1877, pp 46–9 (C S Mein, Postmaster-General). 226. Queensland, Official Record of the Debates of the Legislative Assembly, vol 23, 1877, 12 June 1877, pp 226–7. 227. Queensland, Official Record of the Debates of the Legislative Assembly, vol 23, 1877, 29 May 1877, p 98 (S W Griffith, Attorney-General). 228. Queensland, Official Record of the Debates of the Legislative Assembly, vol 43, 1884, 21 August 1884, pp 389–90. 229. Queensland, Official Record of the Debates of the Legislative Council and the Legislative Assembly, vol 98, 1906, 7 December 1906, p 2139 (J W Blair, Attorney-General). 230. Queensland, Official Record of the Debates of the Legislative Council and the Legislative Assembly, vol 79, 1898, 20 September 1898, pp 571–2 (W H Wilson, Postmaster-General); Lee, Manual of Queensland Succession Law, note 222 above, pp 92–3. 231. Queensland, Official Record of the Debates of the Legislative Council and the Legislative Assembly, vol 80, 1898, 6 December 1898, pp 1380–1. 232. Queensland, Official Record of the Debates of the Legislative Assembly, vol 68, 1892, 13 September 1892, p 1221; Queensland, Official Record of the Debates of the Legislative Assembly, vol 66, 1892, 21 September 1892, p 124. 233. See, for example, the Succession and Probate Duties Acts in 1895, 1904, 1906, 1918, 1920, 1931. 234. Queensland, Official Record of the Debates of the Legislative Council and the Legislative Assembly,

235. 236. 237. 238. 239.

240. 241.

242.

243. 244.

245. 246. 247. 248. 249. 250. 251. 252. 253. 254.

vol 121, 1915–16, 5 November 1915, p 1842; similar remissions were provided during World War II and were also extended to merchant seamen: Queensland, Official Record of the Debates of the Legislative Assembly, vol 182, 1944, 12 September 1944, pp 430–3; 10 November 1943, pp 1430–3. Queensland, Official Record of the Debates of the Legislative Council and the Legislative Assembly, vol 73, 1895, 16 July 1895, pp 230–2; 23 July 1895, p 288; 20 September 1895, pp 1019–24. Queensland, Official Record of the Debates of the Legislative Council and the Legislative Assembly, vol 73, 1895, 23 August 1895, p 686. Queensland, Official Record of the Debates of the Legislative Council and the Legislative Assembly, vol 92, 1906, 12 September 1906, p 707 (P Macpherson). Queensland, Official Record of the Debates of the Legislative Council and the Legislative Assembly, vol 92, 1906, 12 September 1906, p 707. Queensland, Official Record of the Debates of the Legislative Council and the Legislative Assembly, vol 132, 1919, 2 October 1919, pp 1122–3; vol 133, 22 October 1919, pp 1467–8; Brisbane Courier, 22 February 1919, p 14. Queensland, Official Record of the Debates of the Legislative Council and the Legislative Assembly, vol 118, 1914, 8 October 1914, pp 1226–7. Queensland, Official Record of the Debates of the Legislative Council and the Legislative Assembly, vol 118, 1914, 20 October 1914, pp 1365–7; 21 October 1914, pp 1402–4; 3 November 1914, pp 1643–54; 4 November 1914, pp 1696–9; 10 November 1914, pp 1821–30; 11 November 1914, pp 1862–7. Queensland, Official Record of the Debates of the Legislative Council and the Legislative Assembly, vol 121, 1915–16, 20 October 1915, p 1415; 27 October 1915, pp 1604–10; 28 October 1915, pp 1633–8; 9 November 1915, pp 1885–7; 11 November 1915, pp 1993–7; vol 122, 1915–16, 17 November 1915, pp 2140–3. Queensland, Official Record of the Debates of the Legislative Assembly, vol 176, 1940, 3 September 1940, pp 178–82; 25 September 1940, pp 378–82. Queensland, Official Record of the Debates of the Legislative Assembly, vol 179, 1942–43, 22 September 1942, p 266 (D A Gledson, Attorney-General). As to commorientes in the modern law, see generally 11.84–11.88. Queensland, Official Record of the Debates of the Legislative Assembly, vol 181, 1943, 7 September 1943, pp 282–5 (D A Gledson, Attorney-General); 15 September 1943, pp 393–7. Queensland, Official Record of the Debates of the Legislative Assembly, vol 181, 1943, 7 September 1943, pp 303–4 (D A Gledson, Attorney-General); 8 September 1943, pp 305–8 (Gledson). Queensland, Official Record of the Debates of the Legislative Assembly, vol 186, 1945–46, 23 November 1945, pp 1772–6; 28 November 1945, pp 1866–75 (D A Gledson, Attorney-General). E Russell, A History of the Law in Western Australia and Its Development from 1829 to 1979, University of Western Australia Press, Perth, 1980, p 156. E Russell, A History of the Law in Western Australia and Its Development from 1829 to 1979, University of Western Australia Press, Perth, 1980, pp 155–6, 256. E Russell, A History of the Law in Western Australia and Its Development from 1829 to 1979, University of Western Australia Press, Perth, 1980, p 156. Western Australia, Legislative Council, Parliamentary Debates, vol 8, 1883, 3 September 1883, p 443 (A P Hensman, Attorney General). Inquirer and Commercial News, 14 December 1870, p 4. Western Australia, Legislative Council, Parliamentary Debates, vol 4, 1879, 25 August 1879, p 106 (S H Parker). 43 Vic No 11 s 1.

255. Western Australia, Legislative Council, Parliamentary Debates, vol 8, 1883, 3 September 1883, pp 443–4 (A P Hensman, Attorney General); 6 September, pp 479–81. 256. Western Australia, Legislative Council and Legislative Assembly, Parliamentary Debates, vol 4, ns, 1893, 24 August 1893, pp 472–3 (S H Parker, Colonial Secretary). 257. Western Australia, Legislative Council and Legislative Assembly, Parliamentary Debates, vol 4, ns, 1893, 24 August 1893, p 474 (J W Hackett). 258. Daily News, 9 August 1895, p 3; Western Australia, Legislative Council and Legislative Assembly, Parliamentary Debates, vol 8, ns, 1895, 27 August 1895, pp 690–1 (E H Wittenoom, Minister for Mines). 259. Western Australia, Legislative Council and Legislative Assembly, Parliamentary Debates, vol 23, ns, 1903, 6 August 1903, pp 402–3 (W James, Premier). 260. Western Australia, Legislative Council and Legislative Assembly, Parliamentary Debates, vol 23, ns, 1903, 20 August 1903, p 630 (W Kingsmill, Colonial Secretary). 261. See, for example, Administration Act Amendment Acts in 1909, 1939, 1941 and 1942, the Administration (Estates and Succession Duties) Act Amendment Act 1934 and the Death Duties (Taxing) Act Amendment Act 1939. 262. Western Australia, Legislative Council and Legislative Assembly, Parliamentary Debates, vol 56, 1917–18, 29 January 1918, pp 211–13 (R T Robinson, Attorney General). 263. Western Australian Statutes, 11 Geo V, No 15 (1920). 264. Western Australia, Legislative Council and Legislative Assembly, Parliamentary Debates, vol 64, 1921, 14 September 1921, pp 759–60 (Thomas Walker). 265. Western Australia, Legislative Council and Legislative Assembly, Parliamentary Debates, vol 66, 1922, 7 September 1922, p 650 (E Cowan). 266. Western Australia, Legislative Council and Legislative Assembly, Parliamentary Debates, vol 66, 1922, 18 October 1922, p 1094 (J Nicholson). 267. Western Australia, Legislative Council and Legislative Assembly, Parliamentary Debates, vol 66, 1922, 31 October 1922, p 1278 (H P Colebatch, Minister for Education). 268. Western Australia, Legislative Council and Legislative Assembly, Parliamentary Debates, vol 66, 1922, 31 October 1922, p 1277 (J W Kirwan); vol 67, 1922, 23 November 1922, p 1762. 269. Western Australia, Legislative Council and Legislative Assembly, Parliamentary Debates, vol 107, 1941, 9 September 1941, pp 499–503 (E Nulsen, Minister for Justice). 270. Western Australia, Legislative Council and Legislative Assembly, Parliamentary Debates, vol 110, 1942, 8 October 1942, p 721 (E Nulsen, Minister for Justice). 271. Western Australia, Legislative Council and Legislative Assembly, Parliamentary Debates, vol 115, 1945, 27 September 1945, pp 916–17; 2 October 1945, p 940 (E Nulsen, Minister for Justice). 272. Western Australia, Legislative Council and Legislative Assembly, Parliamentary Debates, vol 115, 1945, 11 October 1945, p 1181 (W H Kitson, Chief Secretary). 273. Hobart Town Courier and Van Diemen’s Land Gazette, 21 August 1840, p 4 (J Franklin, LieutenantGovernor). 274. Colonial Times, 10 September 1852, p 3. 275. The Courier, 22 July 1853, p 2; 19 April 1854, p 2. 276. The Courier, 2 November 1857, p 3. 277. The Courier, 6 February 1858, p 1 supplement. 278. Cornwall Chronicle, 15 August 1868, p 4; Wood, Laws of the Australasian Colonies, note 95 above, p 84. 279. See, for example, Deceased Persons’ Estates Duties Acts from 1915 to 1917, in 1921, from 1924 to 1927, from 1930 to 1943.

280. 281. 282. 283. 284. 285. 286. 287. 288. 289. 290. 291. 292. 293. 294. 295. 296. 297. 298. 299. 300. 301. 302. 303. 304. 305. 306. 307.

25 Vic No 6 s 1. Mercury, 13 October 1869, p 3. Mercury, 1 September 1870, p 3; 15 September 1870, p 3. Mercury, 19 August 1874, p 3. Mercury, 6 October 1881, p 3 (J S Dodds, Attorney-General); 21 October 1881, p 3. Mercury, 13 October 1881, p 3 (W Moore, Colonial Secretary). Mercury, 5 August 1885, p 3 (A Douglas, Premier). Mercury, 19 August 1885, p 3 (J S Dodds, Attorney-General). Mercury, 2 September 1898, p 4. Mercury, 30 April 1879, p 3 (J S Dodds, Attorney-General). Mercury, 5 August 1893, p 1 supplement. Mercury, 10 October 1903, p 6. Mercury, 3 October 1906, p 6; 5 October 1906, p 6. Mercury, 13 September 1906, p 4. 6 Edw VII No 17 ss 3, 4. Mercury, 12 September 1912, p 7 (A E Solomon, Premier). Mercury, 26 November 1915, p 7 (W J Fullerton). Mercury, 15 December 1915, p 7 (G T Collins). Mercury, 15 December 1933, p 2. Mercury, 15 November 1912, p 7 (A E Solomon, Premier). Mercury, 6 December 1919, p 9. 10 Geo V No 38. Mercury, 1 August 1930, p 6. Mercury, 15 December 1933, p 2 (H T Postle). Mercury, 25 September 1913, p 8. Mercury, 19 December 1918, p 6 (W B Propsting, Attorney-General). 6 Geo VI No 8. Mercury, 12 October 1933, p 13; see also S Petrow, ‘Lost Cause? Law Reform in Tasmania 1941– 1969’ (1994) 13 U Tas L R 369. 308. 25 Geo V No 50; Mercury, 24 October 1934, in The Mercury Reprints of Parliamentary Debates 1934, p 51. 309. 26 Geo V No 38. Minor textual amendments were made by the Administration and Probate Act No 2 1935. 310. Mercury, 23 September 1943, in The Mercury Reprints of Parliamentary Debates 1943–44, p 17.

[page 758]

CHAPTER 22

Conflicts of Law in Succession Doctrine of Scission

22.2

Administration of Estates Jurisdiction to grant representation Appointment of a personal representative Impact of the doctrine of scission Resealing of grant made elsewhere Property in the personal representative Administration of the estate

22.4 22.4 22.5 22.6 22.8 22.9 22.10

Wills and Intestacy Intestate succession Testate succession Questions of capacity Questions of formal validity Impact of ‘international wills’ legislation Questions of essential validity Questions of construction Questions of revocation Powers of appointment General principles Questions of capacity Questions of formal validity Questions of essential validity Questions of construction Questions of revocation

22.12 22.13 22.14 22.14 22.15 22.20 22.21 22.22 22.23 22.28 22.28 22.29 22.30 22.31 22.32 22.33

Election

22.34

Family Provision

22.35

[page 759] 22.1 Succession on death involves the passage of property to others, either under a will or intestacy. This chapter addresses the legal position with respect to property of the deceased where there are multi-state circumstances in relation to that property, either within separate jurisdictions in Australia or other countries. Legal issues may arise with respect to all core aspects of succession law — the administration of estates, the law relating to wills and intestacy, as well as that relating to family provision — all of which are discussed below.1

Doctrine of Scission 22.2 As a general introductory comment, Australian law recognises a general principle of ‘scission’ — meaning an act of division or severance — which distinguishes succession to movable property (‘movables’) from succession to immovable property (‘immovables’). In the context of private international law, this division serves as ‘a common basis of classification with the other system which does not use the English concepts of real and personal property’.2 For movables, the law targets a deceased’s domicile at the time of death for the applicable law (lex domicilii). Immovables, conversely, are governed by the law in which the property is situated (lex situs). Accordingly, the movables-immovables distinction ultimately rests not on whether the property is realty or personalty (although realty by definition is immovable) but on its primary characteristic or nature.3 22.3 Difficulties underscoring the making of this distinction have prompted calls for reform.4 The Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons,5 to this end, prescribes a single rule whereby succession is governed by the law of the country in which the

deceased was habitually resident at the time of death. The Australian Law Reform Commission6 likewise recommended a single rule, focusing on the deceased’s last domicile at the time of death. As yet, however, the foregoing has not translated to statute in any Australian jurisdiction.

Administration of Estates Jurisdiction to grant representation 22.4 As a general rule, a deceased’s estate vests in his or her executor(s) or administrator(s), to whom probate or letters of administration (collectively ‘representation’) has been granted.7 In most jurisdictions, the probate legislation premises a grant of representation upon the deceased leaving property, whether real or personal or both, within that jurisdiction.8 The legislation in the territories and Queensland, though, allows a court in those jurisdictions to make a grant even if the deceased left no property within the jurisdiction, if satisfied that such a grant is necessary.9 [page 760] Other than in the territories and Queensland, one reading of the relevant provisions suggests that, as regards the testamentary disposition by (say) a Victorian-based testator of property located outside Victoria, no grant of probate vis-à-vis that property can be obtained in Victoria, even if the testator left other property in Victoria.10 Yet the position is unlikely to be so unyielding. Case authority supports the proposition that if the Victorian will does not purport to dispose of property within Victoria, that the deceased has left property in the state is sufficient to attract the court’s jurisdiction to grant representation in Victoria if nothing in the will is inconsistent with the deceased intending the will to have testamentary operation in Victoria.11

Appointment of a personal representative 22.5

Once jurisdiction is established with respect to the deceased’s estate,

representation will normally be granted to the persons named in the will as executors or granted letters of administration, which grant can be made even if the personal representative is outside the jurisdiction. Problems may arise, however, when a court outside the jurisdiction (in the context of conflicts of laws, termed ‘forum’) has made the actual appointment of the personal representative.

Impact of the doctrine of scission 22.6 The doctrine of scission complicates the issue, which is to determine whether such a grant made in the other jurisdiction may be locally recognised. The principle is that recognition is granted provided that assets within the forum consist only of movable property and the deceased was domiciled at death in the jurisdiction granting representation. This rule has been described as ‘a rule of convenience and expediency, and not an absolute right’.12 Again, with respect to immovables, though, the lex situs governs. The matter is illustrated by the High Court of Australia’s decision in Lewis v Balshaw,13 where probate of the will of a testator who died domiciled in England, leaving both movable and immovable property in New South Wales, was granted to her executor by an English court. The attorney of the English executor applied for an ancillary grant for administration in New South Wales, which application was opposed by a caveator, who alleged lack of testamentary capacity and failure to comply with the formalities, matters not raised in the English court. The High Court held that, as regards movables, the English grant should be followed upon the principle discussed above, unless there was a special reason against the recognition, say, if the law of the forum disqualified the executor. But as regards the testator’s immovable property in New South Wales, which was governed by the lex situs, the English grant was not followed, but a personal representative was to be determined independently.14 Accordingly, the court held that the trial judge should have heard the objections relating to the validity of the will raised by the caveator. 22.7 The principle that a person entitled to administer the estate under the law of the forum where the deceased was domiciled at death is entitled to appointment as a local representative is not, subject to the doctrine of scission, universal. The personal representative in the forum must be one capable of

receiving a grant under the law of the forum, that is, of age and sound mind.15 [page 761] There may be public policy reasons not to recognise the appointment, moreover, such as where there is an indirect attempt to enforce a foreign revenue claim by the original appointment.16 It appears also that, if an appointment has not yet been made in the court of domicile, the person entitled to administer the estate under the lex domicilii at the date of death, had an application been made, is entitled to a local grant.17 The same is true where the forum of domicile lacks a comparable procedure to representation in the common law. Here the forum court ordinarily follows the lex domicilii as to the administration of the estate, and appoints whoever is responsible under that law.18

Reseating of grant made elsewhere 22.8 The probate legislation provides for the resealing of grants made in other Australian jurisdictions.19 Its effect is to provide a less onerous procedure to that of obtaining a fresh grant of representation within the forum. The South Australian, Tasmanian and Victorian provisions go further, in making scope for foreign countries to reseal Australian grants.20 If resealing is granted, it operates within the forum from the date of the grant, so that persons having a claim against the estate have standing to bring the action in the forum, and are not limited to the forum in which the grant of representation was originally made. Resealing, therefore, serves to give the grant the like force and effect, and the same operation in the forum, as if the forum court had made the grant. Resealing of grants is, however, subject to the general discretion of the court, which assimilates with the discretion exercisable with respect to recognition of foreign grants generally in the case of movable property. Where, however, a grant is made in the forum where the deceased was domiciled at the date of death, and there is property in the forum, this may present a prima facie case for resealing.21

Property in the personal representative 22.9 Upon a grant of representation the deceased’s property, both movable and immovable, within the forum, vests in the personal representative(s).22 But a grant of representation confers no authority to take possession of, or deal with, property outside the forum;23 instead the personal representative must meet the legal requirements applicable in the foreign forum for obtaining the right to deal with that property.24 There is a suggestion in older case law that all property, foreign or otherwise, vests in the personal representative,25 but the modern view is that this is not a question for the forum, but for the law of the lex situs, to determine.26 However, [page 762] assets brought into the forum after the death of the represented person, under this principle, vest in the personal representative.27 It may be that, in cases where local assets are insufficient to meet the debts of the estate, foreign assets are accordingly subject to purchase.28

Administration of the estate 22.10 A basic principle of private international law is that the administration of a deceased estate by the personal representative(s) (sometimes referred to as administrators) — which is primarily concerned with the duty to ascertain and recover the assets of the estate and to discharge the debts of the deceased29 — must be conducted in accordance with the law of the forum, that is, the place in which the personal representative(s) received the grant. This principle rests upon the proposition that an administration of assets is to be carried out in accordance with the lex fori, that is, the law of the forum in question.30 Re Lorillard31 illustrates the foregoing. The testator, domiciled in New York, died in England leaving assets and creditors both in England and America, and administration proceedings were taken in both countries. In the English administration, after payment of debts, a surplus remained available for

beneficiaries. However, in the American proceedings, the debts exhausted the assets, leaving certain creditors unpaid but whose debts were statute-barred by English law, but not by New York law. An opportunity to prove those debts granted by the English court was not taken up. The American administrator’s subsequent claim to have the surplus English assets transferred to him for distribution among the American creditors was rejected by the English Court of Appeal, leaving the surplus to be distributed among the English beneficiaries. A similar outcome ensued years later in the Australian High Court in Permanent Trustee Co (Canberra) Ltd v Finlayson.32 A testator had left two wills, the first appointing a New South Wales executor and disposing of her property in that state, the second appointing an executor in the Australian Capital Territory and disposing of her property there. The testator died domiciled in New South Wales. In issue was whether the executor under the territory will was liable for stamp duty in New South Wales, which the New South Wales property was insufficient to satisfy. The Full Court held that the unpaid stamp duty was not recoverable from the territory executor, ruling that the latter ‘was neither liable nor entitled to pay out of the territory assets any claims which were not sustainable against it according to the law of the territory’.33 22.11 From these cases it also appears that the general rule applies equally in the case of ancillary administration, that is, administration that results in a surplus from an administration conducted in the forum. The question arises as to the power to remit — known as renvoi — to another forum in such a case. Though the court has a discretion in the matter, it is usual to order the surplus to be administered by the principal administrator, so as to be available in the general administration of the estate.34 Yet renvoi was ordered neither in Re Lorillard nor in Permanent Trustee Co (Canberra) Ltd v Finlayson, where there were separate administrations in the forum and the domicile. As these cases reveal, renvoi to the principal administrator in the place of domicile need not be made if the claim is unenforceable according to the law of the forum. [page 763]

As regards normal administration and the payment of debts, the law of the forum is determinative whether a debt is to be paid, including priority of debts, and it is the administrator’s duty to pay them irrespective of the location of the creditors.35 The law of the forum, to this end, governs insolvent estates, whether the creditors be local or foreign. However, foreign debts that are unenforceable in the forum should not be paid.36

Wills and Intestacy 22.12 Upon completing administration, it is the personal representative’s duty to distribute the assets of the estate to those entitled, whether under the will or the intestacy rules.37 The doctrine of scission assumes particular relevance here, as the distinction between movable and immovable property is drawn in most instances. The former is governed by the lex domicilii, the latter by the lex situs, although exceptions do arise.

Intestate succession 22.13 In the case of intestate succession, movable property devolves according to the lex domicilii of the intestate at the time of death.38 A court with jurisdiction is therefore obliged to distribute that property in accordance with the lex domicilii. That law also determines the next-of-kin and membership of the relevant categories for the purposes of the law of intestacy.39 For immovable property, the law is determined by the lex situs, regardless of domicile,40 which also determines next of kin and membership of categories.

Testate succession Questions of capacity 22.14 As regards capacity to make a will,41 the usual division is made between movable and immovables. Thus, in the case of movables, the lex domicilii governs questions of testamentary capacity.42 There remains an issue as to the impact of a change of domicile between the date of the will and the date of death. The prevailing view, it seems, is that the relevant date is the date

of the making of the will, as testamentary capacity is ascertained at that date.43 For immovables, testamentary capacity is governed by the lex situs at the date of death.44 [page 764]

Questions of formal validity 22.15 As to the formal requirements for will-making,45 private international law originally adopted the distinction between movables and immovables. Accordingly, questions of formal validity for movables were governed solely by the lex domicilii at the date of death,46 whereas for immovables conformity with the lex situs was required.47 The strictness of this common law position has since been overcome by provisions in the wills legislation,48 which ousts the movable-immovable distinction on the question of formal validity. Under the legislation a will is formally valid if it is executed according to the internal law of:49 • the place where the will was executed; • the place of the testator’s domicile or habitual residence at either the date of execution of the will or at the date of death; or • the place of which the testator was a national, either at the time the will was executed or at the time of the testator’s death. In the case of a will executed on board a vessel or aircraft, formal validity is also confirmed if it is in accordance with the law of the place that, having regard to the registration and/or other relevant matters of the vessel or aircraft, it is most closely connected.50 22.16 In addition to the foregoing, a testator may, so far as the disposal of immovable property is concerned, make a will in conformity with the internal law in force in the country or place where the property is situated.51 The term ‘internal law’ is defined as the law that would apply in a case where no question of law in force in any other place or country arose.52 It therefore excludes the rules of private international law, and particularly the doctrine of renvoi. However, as there has been no repeal of the common law rules, a will

may still be formally valid, in the case of movable property by the lex domicilii or, in the case of immovables, by the lex situs, and in both cases includes any legal system referred to by that law. 22.17 The wills legislation also addresses the potential problem of nationality. It dictates that, where the relevant country may have several systems of internal law, particularly in a federal or other composite system, the court must determine if there is an internal choice of law indicating the law to be applied. If so, the court must follow and apply that rule. If not, the system to be applied is that with which the testator was most closely connected at the relevant time, being the date of death where the matter is determined by reference to circumstances prevailing at the testator’s death, or the time of execution of the will in any other case.53 22.18 Another impact of the legislation is to oust the common law rule that the relevant date to ascertain formal validity is the date of death, and substitute the date of the execution of the will.54 So a change of domicile between the time of execution and the testator’s death, [page 765] which would otherwise operate to invalidate the will, can safely be ignored, as can a change in the lex domicilii itself. 22.19 Finally, the legislation states that a foreign law requirement that special formalities be observed by testators of a particular description, or that the witnesses to the execution of the will have certain qualifications (for instance, witnessing by notaries in most civil law jurisdictions), is taken to be a formal requirement and not an issue of substantive validity, despite any rule of law to the contrary.55 Thus an Australian court may ignore the requirement so long as the will conforms with the formal requirement(s) of either the place of habitual residence or the place of execution.

Impact of ‘international wills’ legislation 22.20

Australia’s accession, on 10 March 2015, to the Convention

Providing a Uniform Law on the Form of an International Will 1973, set in train amendments to the wills legislation in each jurisdiction.56 The main object of acceding to the Convention is to enable wills made in Australia to be recognised as valid in other nations that have adopted the Convention, and vice versa. In turn this simplifies the process of probate, and reduces its costs, for wills executed outside Australia or that have assets or beneficiaries in more than one member state. The Convention declares a will to be valid as regards form, ‘irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an international will’ complying with the prescribed formality requirements.57 The latter exhibit the same core characteristics as existing legislative requirements.58 Attached to the will must be a certificate, drawn up by a legal practitioner or notary public, that in the absence of evidence to the contrary is declared to be ‘conclusive of the formal validity of the instrument as a will under this Law’.59 The will is construed in accordance with the law of the relevant member states, and is subject to the ordinary rules of revocation of wills.60

Questions of essential validity 22.21 Unlike questions of capacity and formal validity, issues of essential validity largely centre on matters outside the testator, such as rules relating to accumulation and perpetuities, [page 766] the power to order family provision,61 the validity of charitable trusts62 and the validity of gifts to attesting witnesses.63 As the basic movables–immovables division remains well established here, essential validity depends on the lex domicilii at the date of death in respect of movables and the lex situs for immovables.64 For movables, a change in domicile between the date of the will and the date of death may have a substantial effect. In Re Groos65 the testator, originally domiciled in the

Netherlands, made a will there leaving her entire estate to her husband, but subject to any portions to which her relatives might be entitled under Dutch law. Under Dutch law she could only dispose of one-quarter of her estate, the other portion going to the next of kin. She later acquired a domicile in England and, on her death, Sargant J held that the husband was entitled to the entirety of the estate, explaining the point as follows:66 The legitimate portion having been swept away by reason of the change of domicil, the result is, not that the meaning of the will is in any way altered, but that the area of the property over which the will takes effect is enlarged and the whole of the testatrix’s residue instead of one-fourth share only goes to the husband.

The case law evinces some flexibility with respect to movables. In Re Mitchner (deceased),67 for instance, a case involving the applicability of the law relating to perpetuities, the Full Court of the Supreme Court of Queensland held that testamentary trusts of movables are valid under the law of the place where they are to be administered, even if they would be invalid under the testator’s lex domicilii at the date of death. In the case of testamentary trusts of immovables, a general classification can save the trusts by treating the subject matter of the fund as movable, and therefore subject to the lex domicilii.68

Questions of construction 22.22 As to questions of construction of a will, the usual distinction between movables and immovables is virtually abandoned for the purposes of private international law. In relation to both, what applies is the lex domicilii at the time the will was made, albeit subject to a contrary intention, expressed in the will or otherwise.69 As the principle is applied as at the date of the making of the will, the construction question is not affected by the testator’s subsequent change in domicile,70 a point given statutory effect in the wills legislation.71 Technically, immovables remain governed by the lex loci, but invariably call is made on the lex domicilii in cases of construction, predicated on the fact that the meaning of the words used in the will is best ascertained by reference to the place where the will was executed.72 However, [page 767]

there is an overwhelming requirement that the lex domicilii not conflict with the law in which the property is situated; in the event of conflict, the lex situs prevails.73

Questions of revocation 22.23 Australian law recognises five methods of revocation: by another will or codicil declaring an intention to revoke;74 by a dealing with the will with the intention to revoke;75 by destruction of the original will;76 by marriage;77 and by divorce or annulment.78 How these translate into the private international law arena is discussed below. 22.24 The principles underscoring formal validity79 apply equally as regards revocation by intention. The wills legislation adds that a will, to the extent that it revokes a will (or a provision therein) that has been executed in accordance with the local law is taken to be validly executed ‘if the later will has been executed in conformity with any law under which the earlier will or provision would have been taken to have been validly executed’.80 So even if the later (revoking) will is formally invalid, revocation remains effective if the later instrument would have been valid under the formal validity rules of the earlier will. 22.25 As to revocation by a later will, circumstances may arise where full effect should not be given to general revocatory clauses.81 For private international law purposes, it raises some matters relating to choice of law. An illustration is Re Barker.82 The testator, who was born in Europe, lived in Australia for 18 years before returning to her birthplace, dying in Austria in 1992 leaving an estate comprising personal property in both Victoria and Europe and real property in Victoria. In 1985 she made a will prepared by her Australian solicitor, but in the same year made another will in Germany containing a revocation clause to the effect that it invalidated any previous written wills. Tadgell J admitted extrinsic evidence, including statements made to her Australian solicitor, from which he inferred that the testator did not intend via the German will to revoke the Australian will, and that each was intended to be self-contained and have its own sphere of influence; the Australian will was to deal with Australian assets, and the German will with German assets. Probate was accordingly granted of the Australian will.

Tadgell J held that the question whether the German will was intended to affect the Australian will was to be determined as a matter of evidence according to the lex fori. Under the lex fori a general revocation clause was insufficient to revoke an earlier will if the court was satisfied that the testator did not intend by the later will to revoke the former.83 His Honour distinguished the question whether the German will was sufficient in its terms to revoke the Australian will from the question whether the German will was, irrespective of its terms, intended to affect the Australian will. He declined to pursue the former question because it involved a question of construction of the German will by reference to German law (being lex domicilii), but addressed the latter question as one to be determined as a matter of evidence according to the lex fori, that is, Victorian law.84 The real question, after all, was whether the Australian will should be [page 768] admitted to probate. Conversely, where the lex domicilii is in substance the same as the lex fori, no real problem of choice of law arises.85 22.26 The scission between movables and immovables applies in relation to voluntary revocation by acts other than by testamentary instrument. The general principle is that, as usual, the relevant law is governed by the lex domicilii for movables, and the lex situs for immovables. For example, in Velasco v Coney86 destruction of a will in accordance with the law of Italy, being the testator’s domicile, was recognised for movables. 22.27 In the case of revocation by marriage, the matter has been declared to relate to matrimonial law rather than succession law, so that the relevant law depends on the testator’s domicile at the time of the marriage.87 By analogy, it appears that, in the case of divorce or annulment, the lex domicilii will govern, namely the law relevant at the date of the decree of dissolution or annulment. This is so irrespective of whether the property is movable or immovable.

Powers of appointment

General principles 22.28 In the case of a will, powers of appointment exist where a testator makes provision whereby a person, termed the ‘donee’ of the power, is given authority to dispose of the testator’s property. Powers of appointment are ordinarily classified as either general, specific or hybrid.88 For the purposes of private international law, the law governing the will under which the power is created (the original instrument)89 governs how a power is classified90 — special and hybrid powers being treated as equivalent for this purpose — albeit in the context of the wording used in the will. Choice of law questions also surface so far as the instrument by which the power is exercised is concerned. As a general power, whereby the donee can appoint himself or herself the property the subject of the power, involves a true disposition of property in the donee’s favour, its validity is premised upon the instrument in which the power is exercised being valid under the law applicable to it.91 Conversely, as a special power is no more than a nomination of a person to benefit under the original instrument, the law governing the latter is solely applicable.92 The application of these general principles in the context of capacity, validity, construction and revocation is discussed below. [page 769]

Questions of capacity 22.29 In the case of general powers, it follows from the foregoing that the law regulating the original capacity of a testator to make a will93 also governs capacity in the exercise of the power of appointment.94 In the case of special powers, being ‘essentially part of the instrument that created them’,95 the foregoing dictates that both the lex domicilii and the lex situs are irrelevant (as is the movable–immovable distinction), as the governing law is that governing the original instrument.96

Questions of formal validity

22.30 The wills legislation other than in South Australia and Western Australia provides that a will is not, to the extent that it exercises a power of appointment, taken to have been improperly executed only because it has not been executed in accordance with the formalities required by the instrument creating the power.97 And in all jurisdictions except the Australian Capital Territory and New South Wales it states that a will exercising a power of appointment is taken to have been properly executed if it has been executed in conformity with the law governing the essential validity of the power.98 An additional saving provision exists in all jurisdictions to the effect that, where a will confers a power to make an appointment, and the original instrument creating the power prescribes additional formalities, the latter may be ignored if the will is executed according to the formalities in the forum.99

Questions of essential validity 22.31 The question of essential validity of powers of appointment is governed by the rules that apply to capacity. Accordingly, the law governing the essential validity of the donee’s will determines the essential validity of general powers. For special powers of appointment, essential validity is clearly governed by the proper law of the instrument creating the power.

Questions of construction 22.32 The construction of a power of appointment is governed by the same conflicts rules that relate to choice of law generally.100 So, whether the power is general or special, or whether it concerns movable or immovable property, it is to be construed by reference to the law intended by its donee. The law is prima facie the lex domicilii of the donee at the time of making of the will, subject to any contrary intention.101 However, if the concept of powers of appointment is unknown in the lex domicilii, it is legitimate to construe the exercise of that power by reference to the law of the lex fori.102

Questions of revocation 22.33 The revocation of an exercise of a power of appointment is governed by the choice of law rules relating to revocation generally.103

[page 770]

Election 22.34 In private international law the equitable doctrine of election104 may arise with respect to local and foreign property. As a general principle, the lex domicilii, both with respect to movable and immovable property, is the governing law.105 Thus, the beneficiary is only put to an election when the doctrine of election is recognised under the law of the place where the deceased was domiciled at death. Earlier authority, suggesting that the choice of law rule should be predicated on the intention of the testator,106 has since been rejected.107 Nevertheless, there are exceptions. The main one arises where a devise of land cannot, under the lex situs, be given effect. In such a case (even if the lex domicilii recognises the doctrine of election), the beneficiary cannot be put to the election on the general equitable grounds of legal impossibility. The lex situs in such a case prevents the actual conveyance.108

Family Provision 22.35 Because provision for claimants is made out of the remainder of the estate after debts have been discharged, and therefore affects the substance of succession to property, the law regulating family provision109 is, for the purposes of private international law, regarded as a law relating to succession to property, as distinct from a law relating to the administration of assets.110 Accordingly, whereas the lex domicilii governs succession to movable property, succession to immovables is governed by the lex situs. 22.36 So far as family provision law is concerned, the foregoing has translated into the following propositions.111 First, the courts of the testator’s domicile alone can exercise the discretion given by the family provision legislation of the domicile so as to affect succession to movable and immovable property in the territory of the domicile. Second, only courts of the testator’s domicile can exercise those powers vis-à-vis movables outside the territory of the domicile. Third, courts of the situs alone can exercise such powers, and only

in accordance with any family provision legislation of the situs, so as to affect immovables of the testator outside the domicile; courts of the domicile cannot affect such immovables. 22.37 This common law position is statutorily modified in New South Wales. The wills legislation envisages that a family provision order may be made ‘in respect of property situated in or outside New South Wales when, or at any time after the order is made, whether or not the deceased was, at the time of death, domiciled in New South Wales’.112 Coupled with provisions in other legislation enabling the court to deal with foreign land,113 the New South Wales statutory environment expands the property over which the court can make an order, that is, to movables in the state of testators who died domiciled elsewhere, and to immovables outside the state of testators who died domiciled in the state. [page 771] However, on a literal reading of the relevant provision, it ostensibly empowers the court to make an order in respect of property outside New South Wales, irrespective of any link with New South Wales aside from the proceedings being commenced in the state. To the extent that the literal words of the provision envisage this outcome, the section is unconstitutional in having an illegitimate extra-territorial operation.114 It is doubtful, in any case, whether this was the statutory intention, which arguably was no more than to extend the court’s jurisdiction to real estate outside the state in the case of a deceased domiciled in New South Wales.115 The case law unsurprisingly highlights instances where the courts have refused to assume jurisdiction when the deceased lacked sufficient connection with New South Wales.116 22.38 In South Australia, there is also some statutory alteration to the common law principles.117 Jurisdiction may be assumed if the deceased died domiciled within that state, or left real or personal property within the state, regardless of domicile. For immovables outside the state, however, domicile within the jurisdiction does not give jurisdiction, which is limited to the lex situs.

1. 2. 3. 4. 5. 6. 7. 8. 9.

10. 11.

12. 13. 14. 15.

16. 17. 18.

19. 20.

For a more detailed treatment of the topic, see Nygh, Chs 37, 38; Mortensen, Garnett and Keys, Ch 21. Haque v Haque (No 2) (1965) 114 CLR 98 at 109; BC6500560 per Barwick CJ. As to the distinction between movables and immovables generally, see Haque v Haque (No 2) (1965) 114 CLR 98; BC6500560. See, for example, Mortensen, Garnett and Keys, pp 515–16. 28 ILM 146 (1989), Art 3(1) (not yet entered into force). Australian Law Reform Commission, Choice of Law, Report No 58, 1992, pp 110–11. See 11.81–11.83. ACT s 9(1); NSW s 40; NT s 14(1); SA s 5; Supreme Court Civil Procedure Act 1932 (Tas) s 6(5); Vic s 6; WA s 6. See Re Alymore (deceased) [1971] VR 375 at 376–7 per Lush J. ACT s 9(2); NT s 14(2); Qld s 6(2) (provisions having their genesis in the Administration of Justice Act 1932 (UK) s 2). See, for example, In the Estate of Wayland [1951] 2 All ER 1041 (where Pearce J granted probate of a Belgian will even though it disposed only of property in Belgium). Cf Aldrich v Attorney-General [1968] P 281 at 295 per Ormrod J (who opined that, aside from Wayland, ‘it appears to me to be contrary to principle for this court to make a grant of representation in the estate of a person domiciled in some other country who died leaving no assets within the jurisdiction of this court’). In the Goods of Mann [1891] P 293; In the Will of Palmer (1904) 29 VLR 946. Re Carlton (deceased) [1924] VLR 237 at 240–1 (FC); Re Rogowski (deceased) (2007) 248 LSJS 274; [2007] SASC 161; BC200703457 at [13] per Gray J; In Estate of Burgess (deceased) (2011) 111 SASR 401; [2011] SASC 223; BC201109776 at [6]–[14] per Gray J. As a corollary to this principle, in the case of separate wills, one dealing with assets in the jurisdiction and the other dealing with assets elsewhere, the former may be admitted but not the latter: In the Goods of Tamplin [1894] P 39. Lewis v Balshaw (1935) 54 CLR 188 at 197; BC3600002 per Starke J. (1935) 54 CLR 188; BC3600002. Lewis v Balshaw (1935) 54 CLR 188 at 195; BC3600002 per Rich, Dixon, Evatt and McTiernan JJ. In the Goods of the Duchess of D’Orléans (1859) 1 Sw & Tr 253; 164 ER 716 (where Sir C Cresswell refused to appoint a minor as personal representative under a foreign will, given that in English law a minor is under a disability for this purpose: see 10.10). See, for example, Bath v British & Malayan Trustees Ltd [1969] 2 NSWR 114. In the Goods of Whitelegg [1898] P 267. Re Goenaga [1949] P 367. Whether this includes the exact following of the new domicile (as much it can be so) is debatable: see In the Goods of Meatyard [1903] P 125 (where Jeune P noted that, whilst the court will follow the grant of the foreign domicile, it ‘cannot follow the foreign law so far as to grant administration to any one who is personally disqualified from taking the grant’: at 129); In the Estate of Groos [1904] P 269 (where the evidence revealed that, although there was power in Holland to appoint an executor so as to give him or her possession of the entire estate, the period of possession was limited to 1 year, and so Gorell Barnes J held that ‘the grant must go to this executor in a limited form — limited, that is, to the expiration of one year from the date of the death of the testatrix’: at 273; but note that, whether this can survive the ruling of Ormerod J in Re Goenaga, who did not allow a similar (in that case, French) 1-year limitation to prevent a grant of probate in England 3 years after the deceased’s death, may be queried). ACT Pt 5; NSW Pt 2 Div 5; NT Pt V; Qld Pt 2 Div 6; SA Pt 2 Div 5; Tas Pt VI; Vic Pt III; WA Pt III. SA s 19; Tas s 53; Vic s 88.

21. 22. 23. 24. 25. 26.

27. 28. 29. 30. 31. 32. 33. 34. 35. 36.

37. 38. 39. 40.

41. 42.

43. 44.

45. 46. 47.

See, for example, In the Goods of Sanders [1900] P 292; Re McLaughlin (deceased) [1922] P 235. See 11.81–11.83. Estate of Tamburin (2014) 119 SASR 143; [2014] SASC 58; BC201404012 at [15] per Gray J. See Mortensen, Garnett and Keyes, p 500. See, for example, Whyte v Rose (1842) 3 QB 493; 114 ER 596. This underscores the judgment of Harman J in Re Fitzpatrick (deceased) [1952] Ch 86, who ruled that it is not the duty of executors to go to the foreign country where the chattels in question are located, where ‘incidentally they have no standing at all, and obtain these chattels and bring them back here’, but that once the executors have assented (as to which see 10.47–10.52), ‘the specific legatee must go and get the chattels’: at 89. This presupposes that the executors did not have title to the foreign chattels. See also Davidson v Cameron [2016] 2 Qd R 340; [2015] QSC 294; BC201510472 at [106] per Jackson J. See, for example, Weinstock v Sarnat [2005] NSWSC 744; BC200505414. See, for example, Stirling-Maxwell v Cartwright (1879) 11 Ch D 552. See 12.1. Permanent Trustee Co (Canberra) Ltd v Finlayson (1968) 122 CLR 338 at 342–3; BC6800840. [1922] 2 Ch 638. (1968) 122 CLR 338; BC6800840. Permanent Trustee Co (Canberra) Ltd v Finlayson (1968) 122 CLR 338 at 342; BC6800840. See, for example, In the Estate of Weiss (deceased) [1962] P 136. Re Kloebe (1885) 28 Ch D 157. See, for example, Government of India, Ministry of Finance (Revenue Division) v Taylor [1955] AC 491 (dealing with claims on behalf of a foreign state to recover taxes due under its laws that were unenforceable in English courts, Lord Keith remarking that ‘in no circumstances will the Courts directly or indirectly enforce the revenue laws of another country’: at 510); Bath v British & Malayan Trustees Ltd [1969] 2 NSWR 114 at 117–18 per Helsham J. As to the distribution of a deceased estate generally, see Chapter 14. Pipon v Pipon (1744) Amb 25; 27 ER 14; Re Bedake (2015) 300 FLR 63; [2015] ACTSC 267; BC201508474 at [21], [22] per Mossop AsJ. As to these categories, see Chapter 9. Re Ralston [1906] VLR 689; Re Collens (deceased) [1986] Ch 505 (where Sir Nicolas BrowneWilkinson VC reached this conclusion with ‘some regret’, citing ‘the illogicality of requiring English immovable assets to be regulated for the purpose of succession by the lex situs rather than by the law of the domicile’: at 513). As to the legal requirement of capacity, see 2.2–2.20. In the Goods of Maraver (1828) 1 Hagg Ecc 498; 162 ER 658; In the Estate of Fuld (deceased) (No 3) [1968] P 675 at 696 per Scarman J; Ocalewicz v Joyce (2012) 8 ASTLR 256; [2012] NSWSC 1163; BC201210191 at [17] per Macready AsJ. See Nygh, p 854; Theobald, p 27. The case usually cited for this proposition, namely Re Hernando (1884) 27 Ch D 284, did not involve testamentary capacity in the mental sense. It did, however, involve issues surrounding the capacity of a wife, domiciled in Spain, to make testamentary provision relating to English land as a feme sole in circumstances where Spanish law denied her that capacity. As to the formal requirements for will-making, see 4.1–4.20. Bremer v Freeman (1857) 10 Moo PC 306; 14 ER 508; In the Will of Lambe [1972] 2 NSWLR 273. Pepin v Bruyére [1902] 1 Ch 24.

48.

49.

50. 51. 52. 53. 54. 55. 56.

57. 58. 59. 60. 61. 62. 63. 64. 65. 66.

ACT Pt 2A; NSW Pt 2.4; NT Pt 5; Qld Pt 2 Div 6; SA Pt 3; Tas Pt 5; Vic Pt 2 Div 6; WA Pt VII. These provisions reflect the content of the Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions, 510 UNTS 177 (1961), and were recommended by the National Committee for Uniform Succession Laws (see QLRC, MP 29, Ch 7). ACT s 15C; NSW s 48(1); NT s 46(1); Qld s 33T(1); SA s 25B; Tas s 60(1); Vic s 17(1); WA s 20(1). See, for example, In Estate of Burgess (deceased) (2011) 111 SASR 401; [2011] SASC 223; BC201109776 at [17]–[23] per Gray J. ACT s 15D(1)(a); NSW s 48(2)(a); NT s 46(2); Qld s 33T(2)(a); SA s 25C(a); Tas s 60(2)(a); Vic s 17(2)(a); WA s 20(2)(a). ACT s 15D(1)(b); NSW s 48(2)(b); NT s 46(3); Qld s 33T(2)(b); SA s 25C(b); Tas s 60(2)(b); Vic s 17(2) (b); WA s 20(2)(b). ACT s 15A; NSW s 47; NT s 45; Qld s 5; SA s 25A(1); Tas s 4; WA s 4. There is no equivalent provision in Victoria. ACT s 15B; NSW s 49; NT s 47; Qld s 33U; SA s 25A(2); Tas s 61; Vic s 18; WA s 21(1). ACT s 15E(1); NSW s 50(1); NT s 48(1); Qld s 33V(1); SA s 25A(3); Tas s 62(1); Vic s 19(1); WA s 21(2). ACT s 15F; NSW s 50(2); NT s 48(2); Qld s 33W; SA s 25A(5); Tas s 62(2); Vic s 19(2); WA s 21(3). ACT Pt 3B (ss 16J–16M) (inserted by the Justice and Community Safety Legislation Amendment Act 2012 (ACT), as from 11 April 2014); NSW Pt 2.4A (ss 50A–50E) (inserted by the Succession Amendment (International Wills) Act 2012 (NSW), commenced on 1 May 2015); NT Pt 5A (ss 48B–48F) (inserted by the Wills Amendment (International Wills) Act 2013 (NT), commenced 10 March 2015); Qld Pt 2 Div 6A (ss 33YA–33YE) (inserted by the Justice and Other Legislation Amendment Act 2013 (Qld), commenced 10 March 2015); SA Pt 3A (ss 25F–25J) (inserted by the Wills (International Wills) Amendment Act 2012 (SA), commenced 22 November 2014); Tas Pt 5A (ss 62A–62E) (inserted by the Wills Amendment (International Wills) Act 2012 (Tas), commenced 10 March 2015); Vic Pt 2 Div 7 (ss 19A–19E) (inserted by the Wills Amendment (International Wills) Act 2012 (Vic), commenced 10 March 2015); WA Pt XA (ss 32A–32E) (inserted by the Wills Amendment (International Wills) Act 2012, commenced 11 March 2015). Equivalent provision exists in English legislation (Administration of Justice Act 1982 (UK) ss 27, 28, Sch 2; see M Brandon, ‘UK Accession to the Convention on the Establishment of a Scheme of Registration of Wills and of the Convention Providing a Uniform Law on the Form of an International Will’ (1983) 32 ICLQ 742) and several Canadian provinces (see, for example, Wills and Succession Act 2010 (Alta) Pt 2 Div 3, Sch; Wills, Estates and Succession Act 2009 (BC) s 83, Sch 2; Wills Act 2004 (Man) Pt III, Sch; Succession Law Reform Act 1990 (Ont) ss 42, 43; Wills Act 1996 (Sask) ss 41–51, Sch). Convention Providing a Uniform Law on the Form of an International Will 1973, Art 1. Convention Providing a Uniform Law on the Form of an International Will 1973, Arts 2–6. Convention Providing a Uniform Law on the Form of an International Will 1973, Art 11. The terms of the certificate are prescribed by Art 10. Convention Providing a Uniform Law on the Form of an International Will 1973, Art 14. As to family provision orders generally, see Chapter 20. See, for example, Re Blyth [1997] 2 Qd R 567. See, for example, Re Priest (deceased) [1944] Ch 58. Public Trustee v Vodjdani (1988) 49 SASR 236 at 244–6; BC8800406 per Johnston J; McGowan v Hamblett [2007] 1 NZLR 120 at 127–9 per Asher J. [1915] 1 Ch 572. Re Groos [1915] 1 Ch 572 at 577.

67. 68.

69.

70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85.

86. 87.

88. 89. 90. 91.

92.

[1922] St R Qd 252 at 268–9 per Shand J (FC). Certoma, p 24, referring to Re Piercy [1895] 1 Ch 83 (exercising a duty to convert land into money); Mayor, Alderman and Citizens of Canterbury v Wyburn [1895] AC 89 (via holding that a gift of money to buy land retains its character as a movable). See, for example, Re Fergusson’s Will [1902] 1 Ch 483 at 486 per Byrne J; Re Cunnington [1924] 1 Ch 68 at 72 per Eve J; Re Lungley (deceased) [1965] SASR 313 at 316 per Napier CJ; Public Trustee v Vodjdani (1988) 49 SASR 236 at 243–4; BC8800406 per Johnston J; McGowan v Hamblett [2007] 1 NZLR 120 at 127–9 per Asher J. See, for example, Re Blyth [1997] 2 Qd R 567. ACT s 15G; NSW s 33; NT s 32; Qld s 33D; SA s 23; Tas s 47; Vic s 37; WA s 24. This formed a recommendation of the National Committee for Uniform Succession Laws: QLRC, MP 29, p 73. Studd v Cook (1883) 8 App Cas 577; Macleay v Treadwell [1937] AC 626. Philipson-Stow v Inland Revenue Commissioners [1961] AC 727 at 761 per Lord Denning; Re Brown [2015] NSWSC 1470; BC201509698 at [20] per Brereton J. See 5.3–5.8. See 5.15. See 5.9–5.14. See 5.23, 5.24. See 5.35–5.41. See 22.15–22.19. ACT s 15D(1)(c); NSW s 48(2)(c); NT s 46(4); Qld s 33T(2)(d); SA s 25(c); Tas s 60(2)(c); Vic s 17(2) (c); WA s 20(2)(c). See 5.3–5.5. [1995] 2 VR 439; BC9503283. Re Barker [1995] 2 VR 239 at 449; BC9503283. See further 5.3–5.5. Re Barker [1995] 2 VR 239 at 449–50; BC9503283. See, for example, Re Estate of Crawford (deceased) (2004) 90 SASR 119; [2004] SASC 370; BC200407840; Schneider v Sydney Jewish Museum Inc [2008] NSWSC 1331; BC200811014 (where the evidence proved insufficient to establish that the original will and the revocatory will were intended to have separate effect, so that revocation occurred under the general revocation clause). [1934] P 143. Re Martin [1900] P 211 at 240 per Vaughan Williams LJ; In the Estate of Micallef [1977] 2 NSWLR 929; Re Coomber [2014] SASC 37 (although Gray J made reference to the deceased’s domicile in South Australia at both the date of marriage and the date of death). As to this classification, see 2.80. Using the terminology in Nygh, pp 873–4. Re Blyth [1997] 2 Qd R 567 at 571–2 per Thomas J. Re Pryce [1911] 2 Ch 286 at 296–7 per Cozens-Hardy MR; Re Khan’s Settlement Trusts [1966] Ch 567 at 580–3 per Russell LJ (rejecting the contrary view espoused by Danckwerts J in Re Waite’s Settlement Trusts [1958] Ch 100 at 108). See, for example, Pouey v Hordern [1900] 1 Ch 429 (where Farwell J ruled that a woman domiciled in France who had, under an English settlement, a special power of appointment by will over funds in England, could exercise the power in such a way as to dispose of the property in a manner inconsistent with her position under French law, reasoning that ‘the execution of any power of appointment validly created and given to a foreigner is in no way affected by any disability which he or she may be under to dispose of his or her own property by the laws of his or her domicil’: at 495).

93. 94. 95. 96.

97. 98. 99. 100. 101. 102. 103. 104. 105.

106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116.

117.

See 22.14. See, for example, Re Lewal’s Settlement Trusts [1918] 2 Ch 391 (where, in a case concerned with movables, the law of domicile was applied to the donee). Nygh, p 875. See Re McMorran (deceased) [1958] Ch 624 at 633–4 per Harman J. Cf G H L Fridman, ‘Choice of Law Governing Testamentary Exercise of Powers of Appointment over Movables’ (1960) 9 ICLQ 1 at 11 (who argues that the same rules ought to apply as regards both general and special powers). ACT s 15D(2); NSW s 48(3); NT s 46(6); Qld s 33T(3); Tas s 60(3); Vic s 17(3). NT s 46(5); Qld s 33T(2)(c); SA s 25C(d); Tas s 60(2)(d); Vic s 17(2)(d); WA s 20(2)(d). As to the essential validity of a power, see 22.31. ACT s 11; NSW s 6(5); NT s 8(6); Qld s 10(12); SA s 10; Tas s 8(5); Vic s 7(4); WA s 9. See 22.22. Re McMorran (deceased) [1958] Ch 624 at 634–5 per Harman J. See, for example, Re Lewal’s Settlement Trusts [1918] 2 Ch 391; Re Waite’s Settlement Trusts [1958] Ch 100. See 22.23–22.27. As to the equitable doctrine of election, see 7.89–7.93. Re Ogilvie [1918] 1 Ch 492 at 498 per Younger J (whether ‘a case of election is or is not raised depends upon the domicil of the testator at death — for it is the law of that domicil which governs it’); Re Mengel’s Will Trusts [1962] Ch 791 at 803 per Buckley J. See, for example, Re Allen’s Estate [1945] 2 All ER 264. Re Mengel’s Will Trusts [1962] Ch 791 at 796–7 per Buckley J. See further Nygh, pp 871–3. See, for example, Brown v Gregson [1920] AC 860. As to the law regulating family provision, see Part III. Pain v Holt (1919) 19 SR (NSW) 105 at 107 per Harvey J; Re Donnelly (1927) 28 SR (NSW) 34; Re Osbourne [1928] St R Qd 129; Heuston v Barber (1990) 19 NSWLR 354 at 360 per Windeyer M. As catalogued by Brereton J in Hitchcock v Pratt (2010) 79 NSWLR 687; [2010] NSWSC 1508; BC201010236 at [6], referring to Re Paulin [1950] VLR 462 at 465 per Sholl J. NSW s 64 (formerly NSW 1982 s 11(1)(b)). See Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) s 3 (‘The jurisdiction of any court is not excluded or limited merely because the proceedings relate to or may otherwise concern land or immovable property situated outside New South Wales’). Balajan v Nikitin (1994) 35 NSWLR 51 at 56–7 per Windeyer J; Hitchcock v Pratt (2010) 79 NSWLR 687; [2010] NSWSC 1508; BC201010236 at [6]–[21] per Brereton J. Balajan v Nikitin (1994) 35 NSWLR 51 at 56 per Windeyer J. See, for example, Balajan v Nikitin (1994) 35 NSWLR 51 (where the deceased was domiciled outside New South Wales); Taylor v Farrugia [2009] NSWSC 801; BC200907277 (where Brereton J only exercised jurisdiction over the deceased’s immovable property situated in New South Wales, where the deceased’s domicile was Malta, but property was left both in Malta and New South Wales). Cf Hitchcock v Pratt (2010) 79 NSWLR 687; [2010] NSWSC 1508; BC201010236 at [20] per Brereton J (noting that, on the facts, there was jurisdiction only if the deceased, having died domiciled in Victoria, left property in New South Wales, and that, although the deceased left no actual estate in New South Wales, the presence in New South Wales of property that could be designated as ‘notional estate’ was sufficient to attract jurisdiction, since once designated it assumes for practical purposes equivalence to actual estate: see 20.64–20.75). Inheritance (Family Provision) Act 1972 (SA) s 7(1)(a).

[page 772]

CHAPTER 23

Costs in Matters Involving Deceased Estates General Costs Principles in Litigation

23.1

Modification of Costs Principles in Litigation Over Deceased Estates Costs ordered from the fund Costs where proceeding discontinued Costs quantified on a more generous basis

23.2 23.2 23.3 23.4

Costs in Proceedings Involving Deceased Estates (Excepting Family Provision) General rules Litigation caused by the testator Intentional conduct of testator State of testamentary papers Poor drafting Bona fide belief that good ground exists for impeaching the will Evidence of incapacity Evidence of undue influence Costs of executor in probate proceedings Costs of interveners

23.5 23.5 23.6 23.7 23.8 23.9 23.10 23.10 23.13 23.15 23.19

Costs Orders in Statutory Wills Applications

23.20

Costs Orders in Family Provision Matters Judicial concern as to costs Costs discretion Costs of successful applicant/unsuccessful defendant Costs of unsuccessful applicant

23.22 23.22 23.23 23.26 23.29

Multiple applicants with similar interests Impact of settlement offers Costs capping and fixing Costs capping in advance of hearing Costs fixing after hearing Costs in Determining Beneficiaries Costs of inquiry into beneficiaries Claims upon intestacy

23.31 23.32 23.35 23.35 23.37 23.38 23.38 23.39 [page 773]

Costs of Appeals in Litigation Over Deceased Estates Costs of beneficiaries as appellants Costs of personal representatives as appellants Costs of personal representatives as respondents

23.40 23.41 23.42 23.44

General Costs Principles in Litigation 23.1 As a broad overarching principle, costs in civil litigation in Australia are said to ‘follow the event’. The ‘event’ is the outcome of the litigation, and so the unsuccessful party indemnifies the successful party for the latter’s costs.1 Although the language of ‘indemnity’ is often used, and indeed the above overarching principle is often referred to as the ‘costs indemnity rule’ (or simply the ‘indemnity rule’), rarely does a successful party secure a complete indemnity in ordinary civil litigation. Instead the costs order generally effects no more than a partial indemnity, constrained to what are assessed as the costs ‘necessary or proper’ for the successful party to attain justice in the circumstances. The ‘necessary or proper’ formulation reflects what is traditionally known as the ‘party and party basis’ of costs quantification, and remains the standard approach in most jurisdictions. Even in jurisdictions where it has been superseded, the ordinary case likewise generates a partial indemnity.2 Only in exceptional cases where the court decrees that costs be

quantified on an indemnity basis — which extends to all costs incurred by the successful party except to the extent that they are of an unreasonable amount or have been unreasonably incurred — is there genuine scope for a true costs indemnity.3

Modification of Costs Principles in Litigation Over Deceased Estates Costs ordered from the fund 23.2 The basic costs principles applicable to civil litigation — that the loser (partially) indemnifies the winner for the latter’s costs — may require modification where litigation is between parties with a claim over the one fund. The court has jurisdiction to order costs to be paid out of the fund, as opposed to personally by one or more of the litigants.4 Generally speaking, two requisites justify such an order: that the expenditure resulted in a benefit to the common property represented by the fund; and that the expenditure has been reasonably incurred.5 In other words, if proceedings properly instituted by persons interested in a fund result in a benefit to the fund, or the owners of the fund, the costs of the persons instituting those proceedings are, generally speaking, payable out of the fund. This principle sees application not only to proceedings involving deceased estates — discussed below — but also commonly to those involving trusts6 and insolvent estates.7 [page 774]

Costs where proceeding discontinued 23.3 As a prima facie rule, a plaintiff who discontinues the proceedings prior to adjudication is liable to pay the opponent’s costs.8 Not all probate proceedings, however, come within this rule. A determination of whether a particular document was or was not the will of the deceased binds the world, that is, it operates in rem. And a probate action cannot be settled simply by the parties’ consent without the court also being satisfied that the settlement is

appropriate,9 chiefly because the court is concerned to ensure that the wishes of the deceased are given effect, irrespective of the wishes of the litigating parties. Assuming that the plaintiff executor acted reasonably in propounding the document in question — there being nothing on its face to indicate that it did not reflect the testamentary wishes of the deceased — these differences between probate proceedings and ordinary claims between party and party may justify ousting the prima facie rule.10

Costs quantified on a more generous basis 23.4 Unlike costs orders in ordinarily civil litigation, costs ordered out of a fund are not uncommonly quantified on an indemnity basis (sometimes termed the ‘trustee basis’, when dealing with litigation over a trust fund or deceased estate). This is reflected by the court rules in some jurisdictions,11 which in turn echo no more than the notion recognised by the general law that persons who are engaged in legal proceedings in a representative capacity — that is, representing the interests of others — should not, if a costs order is made in their favour, be out of pocket because of the litigation. It has been judicially remarked, to this end, that ‘no costs shall be disallowed, except in so far as those costs or any part of their amount should not, in accordance with the duty of the trustee or personal representative as such, have been incurred or paid, and should for that reason be borne by him personally’.12 But the basis of costs quantification remains within the court’s discretion, and so the court may opt to deny or reduce the scope for the indemnity where appropriate. The small size of the fund in question, for instance, may incline the court towards a less expansive indemnity, particularly where the litigation is over a deceased estate,13 as may the parties’ conduct in the litigation, what offers of settlement were made14 and the effect that the costs order may have on a beneficiary.15 [page 775]

Costs in Proceedings Involving Deceased Estates (Excepting Family Provision)

General rules 23.5 Litigation involving deceased estates can raise considerations that are capable of more readily affecting the application of the ‘costs follow the event’ rule than in other forms of civil litigation. The law seeks to strike a balance to ensure that ‘doubtful wills should not pass easily to proof by reason of the cost of opposing them’ while at the same time ensuring that parties will ‘not be tempted into fruitless litigation by the knowledge that the costs will be defrayed by the estate of the testator’.16 Bearing in mind the need to eschew hard and fast rules because circumstances vary in each case,17 three general ‘rules’ — which are ‘neither exhaustive nor rigidly prescriptive’18 — reflect this balance:19 1. Where the opposition to a will was made without proper inquiry into the facts, or without reasonable ground so as to make it unjustifiable opposition, a costs order lies against the party opposing the will.20 2. Where the testator has, by his or her own conduct, in effect caused the litigation, the costs of the unsuccessful party are to be met out of the testator’s estate.21 3. If the facts reveal that neither the testator, the executor or persons interested in the residue have been to blame, but that the opponents of the will have taken proper steps to acquaint themselves of the facts and have been led reasonably to the bona fide belief that good ground existed for impeaching the will, either no order as to costs will be made22 or costs will be allowed, whether wholly or partly, out of the estate.23 The second and third general rules deserve more extended treatment, which appears below. More generally, it should be noted that, notwithstanding the ostensibly less rigid application of the ‘costs follow the event’ rule in probate litigation, more than one judge has disclaimed the assumption, held by some, that the general outcome in probate litigation is that costs are necessarily borne by the estate.24 That assumption has also been disclaimed in the context of family provision litigation, the costs principles in which deserve separate treatment.25 At the same time, in the wills context the application of the ‘costs follow the event’ rule must be tailored to reflect ‘a public interest in keeping faith with the

wishes of a capable will-maker that requires an investigation into the validity of the propounded wills’, which in turn attracts ‘a public interest in the incurring of some level of costs in cases where there is genuine doubt about the validity of a will’.26 [page 776]

Litigation caused by the testator 23.6 The court will inquire, if so directed, as to whether the testator is ‘by reason of his conduct, to be considered the cause of the reasonable litigation which has occurred after his death as to the validity of his will’.27 Though sometimes expressed by reference to the litigation being the ‘fault’ of the testator, this does not necessarily mean moral fault or culpability; the touchstone is whether the testator’s own conduct led to the will ‘being surrounded with confusion or uncertainty in law or fact’.28 Yet fear that litigation could be encouraged, and the settlement of doubtful claims discouraged, if costs are allowed out of the estate to an unsuccessful party, led an English judge to remark that courts ‘narrow rather than extend’ the circumstances in which the usual costs should be displaced in this context.29 More recently, and for the same reasons, it has prompted an Australian judge to go further, calling for a reconsideration of this ‘rule’.30

Intentional conduct of testator 23.7 An example is where the testator, when executing the will, behaved in a way designed to create in the minds of persons with an interest in the estate a belief that he or she lacked the requisite mental capacity. The case law reveals various examples of testators who, for whatever reason, induce such a belief, in which case the costs of the resultant opposition to the will have been met out of the estate.31 The same result does not follow simply because a testator by his or her words, either written or spoken, has inspired false hopes in other persons that they may benefit after his or her death.32

State of testamentary papers

23.8 As a testator who has left multiple contradictory wills, or otherwise left testamentary papers in a state of confusion or disarray, thus requiring the matter to be brought to court, can be seen to have caused the litigation, the estate should bear its cost. For example, in Lippe v Hedderwick33 the testatrix had made a will she later purported to revoke by an ineffectual new will. Upon her death the first will could not be found. As ‘the cause of the litigation was really due to the acts of the testatrix, which reasonably required investigation’,34 the High Court held that it was justifiable for the appellant to contest probate, and so allowed costs out of the estate.35 Murray J made the same order in Dolan v Dolan,36 where the issue was whether a will that was filled out but not executed by the testator was intended to constitute his will. [page 777]

Poor drafting 23.9 From time to time it has been held that a person responsible for the drafting of a document should bear the costs of litigation that poor drafting has encouraged another to commence or contest,37 and this has been most often exemplified in proceedings relating to the construction of wills and trusts. So, it has been said, if ‘the testator and his draftsman have drawn up a document of such a character that no one could … be quite sure of its meaning’,38 the costs of establishing its meaning and effect come out of the estate.39 The reason for this is that these are costs of administration.40 The court may need to apportion costs in this respect where only some of the costs of the suit are attributable to the issue of construction.41 Even costs of an appeal may come out of the residuary estate where ambiguity in the will has caused a divergence of judicial opinion in the lower court(s). In Watson v Ralph,42 for instance, Gibbs CJ noted that, as the difficulties in construction arose from the fact that the will was badly drawn, and since the appellants were encouraged to appeal by the acceptance of their arguments at first instance, the ‘rather exceptional course’ of allowing the costs of all parties out of the estate was justified. Likewise in Dunne v Byrne43 Lord Macnaghten held that the divergence of judicial opinion in the lower courts as

to the charitable status of the gift in issue, coupled with the fact that the difficulty was occasioned by terminology chosen by the testator, meant that the costs of each party should be paid out of the estate. Where, though, it can be proven that the litigation was caused by the negligence of a solicitor in drafting the testator’s will, it is open to the court to order that the costs of the application be met by the solicitor.44

Bona fide belief that good ground exists for impeaching the will Evidence of incapacity 23.10 Courts are alert to suits motivated by personal spite or vindictiveness, and so do not readily presume lack of mental capacity for the purposes of the costs discretion.45 The evidence must be sufficient to convince the court of force to the allegation of incapacity, and of its direct relationship to the testator’s capacity. An obvious conflict in the evidence as to the testator’s capacity may justify an investigation of the will, in which case costs are ordinarily borne by the estate. In Middlebrook v Middlebrook,46 for example, a medical doctor testified that on the day prior to making his will the testator was sedated and semi-comatose, whereas the solicitor attending to the will testified that, on the day it was executed, the testator appeared of full mental capacity. The High Court found adequate reasons for concluding that an investigation of the will was justified, and for raising doubt as to its validity. As only via this investigation did [page 778] the reasons for an affirmative finding as to the testator’s capacity distinctly appear, it ordered that costs be paid from the estate.47 23.11 The same costs outcome may ensue in other scenarios where the evidence raises legitimate grounds to query a testator’s capacity. In Brown v McEncroe48 the testator’s addiction to intemperate habits, and evidence of his

sustained physical and mental deterioration, was held to justify a full investigation into his state of mind to see whether his will was genuine. This served to bring the case within the category of litigation caused by the testator’s conduct, and so costs of all parties were allowed out of the estate.49 Yet the court will not simply assume that evidence of occasional mental incapacity or eccentricity justifies a claim against the will without any costs liability. As explained by Walker J in Clarke v Clarke:50 There is no doubt that the rule which prevails in ordinary cases is … that where the difficulty has been caused by the acts or known condition of the testator that will justify the opposition, though unsuccessful, and the caveators will obtain costs out of the estate. But the basis of that rule is that the Court shall be satisfied by the evidence in the particular case that the acts or conduct of the testator misled the caveators into at least an honest doubt whether the testator was of sound and disposing mind. If it were not so, the result would be disastrous. If the mere fact of a testator being known to be subject to a particular delusion, however irrelevant to the testamentary act, was sufficient to entitle the caveators to oppose the grant of probate and to obtain their costs out of the estate in any event, I think a considerable number of caveats would be lodged, and produce a crop of vexatious litigation most decidedly to be discountenanced.

In Re O’Donnell51 the defendants, not content to insist on the will being proved in solemn form52 and only to cross-examine witnesses produced in support of the will,53 raised defences that fully contested testamentary capacity. The only evidence of incapacity, which in any case was admitted — that the testatrix sometimes made mistakes as to the names of her children and was duller in the afternoons than in the mornings — provided insufficient grounds, according to Angas Parsons J, for the defendants to contest her testamentary capacity.54 Having failed in so doing, the defendants were ordered to pay the plaintiffs’ costs of the suit. The same outcome ensued in Thomas v Nash (No 2), 55 where the defendant’s persistence in challenging the will on the grounds of alleged incapacity, despite compelling evidence to the contrary by relevant physicians and the solicitor who drafted the will, dictated that he should pay the successful plaintiffs’ costs. 23.12 Some, albeit equivocal evidence of incapacity, will not prevail against clear evidence of reasons why a testator chose not to benefit an opponent of the will. In Will of Elizabeth O’Driscoll56 the testatrix’s daughter lodged a caveat against the granting of probate of the will.57 The daughter knew before filing the caveat that she would need to establish that her mother intended her to benefit, and yet the correspondence between them showed clearly that her mother cut her out of the will due to ill feeling.58 The evidence also

unmistakably pointed to the mother being fully possessed of her faculties when making her will. The daughter sought to rely on medical evidence to the contrary whilst ignoring cohesive evidence that her mother [page 779] had recovered from the alleged incapacity. Harvey CJ in Eq ordered that the caveat be removed and that the daughter pay costs. This does not mean that an unsuccessful caveator is never allowed costs out of the estate. Costs may be allowed ‘where strong evidence is given and a case is made out involving the testator or some beneficiary in misconduct contributing to the litigation’.59 Even where the court does not find suspicious circumstances surrounding the making of the will, or that the litigation was brought about by any conduct of the testator, if there is sufficient in the case to excuse some investigation, the court may, instead of allowing the caveator costs out of the estate, order the caveator to bear his or her own costs.60

Evidence of undue influence 23.13 A similar approach to costs applies where undue influence is alleged.61 If the allegation proves unsuccessful, the costs of that issue are ordinarily borne by the party who raised it,62 unless the evidence would have led a reasonable person to inquire whether the testamentary disposition represented a free and independent exercise of the testator’s will. In the latter event, the costs of any such inquiry may well be met out of the estate.63 A clear case is where the presumption of undue influence — here referring to the equitable doctrine of undue influence, not its common law testamentary counterpart64 — arises between the person seeking to uphold the will and the testator. In Nock v Austin65 the plaintiffs, one of whom was a solicitor, sought probate of a will they had prepared for the testator under which both were to receive large benefits. In the case of the solicitor-plaintiff, this raised the presumption of undue influence in respect of the gift.66 These circumstances, according to the High Court, led reasonably to an investigation as to the propounded document, and therefore allowed the defendant costs out of the

residue even though the will was upheld. Isaacs J stated the general legal principle as follows:67 [W]here a party having created suspicion in relation to a will under which he benefits is under the burden of clearing away that suspicion, then, as justice requires him to do so in the presence of any person interested should the suspicion be justified, he must, though eventually successful, ordinarily pay the costs of the person whose presence he has made necessary so far as his benefit extends.

23.14 If a beneficiary has behaved in a way that calls into question whether the bequest was a product of the testator’s free and independent will, it is open to the court to order that costs be paid out of that particular bequest even though any undue influence claim is not sustained. It is just and equitable, it is reasoned, that ‘the party who has knowingly caused the costs of litigation to be incurred should pay for that litigation rather than that burden of its cost be cast on parties who have done no wrong’.68 [page 780] In Trust Company of Australia Ltd v Daulizio (No 2)69 Mandie J found that the conduct of the defendant, in obtaining instructions and preparing a will under which she received a substantial and ostensibly remarkable benefit, doing so in circumstances where no independent solicitor was involved to check the instructions or the will, created the suspicious circumstances that triggered the litigation. These circumstances made it reasonable for the plaintiff to obtain an order that the will be proved in solemn form.70 Even though the defendant proved substantially successful in proving the will, his Honour declined to allow her costs out of the residuary estate. Instead, he ordered that the plaintiff’s costs be paid out of the appellant’s legacy and then, if the legacy was insufficient, out of the residuary estate. On appeal, the court accepted that the order may appear harsh from the defendant’s perspective — after all, it served to at least partially deprive her of her success in the litigation — but found this to be no ground to interfere with the trial judge’s discretion.71 It was not a sufficient reason to impeach a costs order against a party responsible for suspicious circumstances, in the court’s view, that the order will reduce and even annihilate the benefit of his or her legacy.

Costs of executor in probate proceedings 23.15 An executor (or administrator cum testamento annexo) who proves a will is ordinarily entitled to his or her costs out of the estate,72 even without a court order. This stems from the ancient rule that expenses incidental to proving a will are a charge upon the testator’s estate, from which the person who takes probate may recoup the costs so incurred. 23.16 Where an executor has no reason to suspect irregularity in the testator’s capacity, or other grounds that may impugn the legitimacy of the will, but it is proven that the will cannot stand, the executor’s costs still come out of the estate (although there is a suggestion in the case law that an executorbeneficiary may not always be treated so favourably, at least to the extent that the litigation is driven by personal interest).73 So an executor who has secured probate of an instrument he or she reasonably and bona fide believed to be a valid will, but which is later revoked for lack of capacity, will be allowed costs out of the estate, including costs of propounding the will and of opposing the application for revocation of probate.74 23.17 On the other hand, an executor who, it appears, must have known he or she was attempting to obtain the court’s sanction to a document that could not be supported is liable for the costs of the proceeding.75 ‘Knowledge’ for this purpose is not limited to actual knowledge, but includes knowledge the executor would have acquired had he or she not been reckless. In Cooke v Watson76 Walker J remarked that an executor who ‘wilfully shut his eyes and ears to the sources of information which were readily available … cannot claim any advantage from the fact, if it be a fact, that he did not know what was said then’. His Honour found the executor in that case had the opportunity to ascertain the testator’s incapacity from the available evidence, but failed to do so, and so should be denied costs of an attempt to propound the will. In view of an executor’s legal duty to prove the will,77 it makes sense in principle that [page 781] constructive knowledge — knowledge the executor would have acquired had he or she made proper inquiries — of incapacity should be likewise sufficient to

deny an entitlement to costs.78 23.18 Where an executor propounds for probate what he or she believes, according to information available from proper inquiries, is the testator’s last will and testament, but later acquires information of the testator’s incapacity, the costs of an application for leave to bring this evidence before the court and to have the grant of probate revoked legitimately come out of the estate.79 But where the executor persists in propounding the will at a time when he or she knew or should have known of real concerns over its validity, it is open to the court to allow the executor costs out of the estate only up until that time, but not thereafter.80

Costs of interveners 23.19 Although intervention is an historically well-established procedure in probate suits, courts have, as a general rule, been reticent to allow interveners. This in turn impacts upon the relevant costs order. It is said that a person whose interests may be affected by a decree of the court in a probate suit may intervene in the suit, but does so at his or her own risk as to costs81 and that, generally speaking, an intervener in probate actions is not allowed separate costs even if successful unless his or her interest differs from that of other parties to the action.82 This rule stems from the practice of the Probate Court to allow one set of costs; if the intervener’s interest is the same as that of another party who pleads in the action, the intervener should adopt the pleadings of that party.83 For example, in Johnston v Public Trustee84 interveners intervened in support of a will, which the court ultimately upheld. Clark J held that the interveners could have safely left their case in the hands of the executor, who was propounding the will, and so denied them costs out of the estate.85 The dearth of case law on the costs of an unsuccessful intervention in probate actions is likely a consequence of the fact that the successful party would have his or her costs paid out of the estate and the unsuccessful intervener would bear its own costs.86

Costs Orders in Statutory Wills Applications 23.20 In determining the costs consequences of applications for statutory wills,87 courts have generally distinguished between ‘lost capacity’ cases and ‘nil capacity’ cases.88 In the former, if a will already exists, the contending parties are either seeking a benefit from the estate or are seeking to protect a benefit under the existing will. The application is therefore likely to be adversary in nature and so, in line with the usual ‘rule’ for costs, costs will ordinarily follow [page 782] the event.89 It should not be presumed, in cases of this kind, that the estate will meet the costs of the proceeding merely because there is ‘a fair case of dispute’.90 In any case, in determining whether it is appropriate to exercise the discretion to order costs from the estate of a living but incapacitated person, the avoidance of any potentially adverse impact on that vulnerable person’s long-term security and welfare is invariably an important consideration.91 23.21 In a ‘nil capacity’ case, it is desirable that all relevant interests be before the court. Were courts to routinely make costs orders against participants in these cases, it would dissuade those persons from assisting the court for fear of a costs liability.92 As a result, it may be apt for the court here to order costs of all parties legitimately before the court come from the estate, although this should not be assumed to be an automatic outcome. ‘Nil capacity’ cases can also raise individual interests, and courts in this context, as in other testamentary litigation (and civil litigation generally), are wary of allowing a fund to meet the costs of those who unsuccessfully pursue their own individual interests. The nature of the interests in question, the purpose of the fund, as well as its size, may impact in this regard. As explained by Debelle J:93 In my view, there is a strong argument that, since parties are seeking to advance individual interests, each party should bear his own costs … That consideration must be weighed against the fact that there is a public interest in a person being able to make a will so as to enable the orderly disposition of his assets on death. So, where the applicant is the guardian of the person who lacks testamentary capacity, there might be good reason to allow the applicant to recover his costs out of the estate of the person who lacked testamentary capacity. Another relevant factor is that the estate might be small or, as in this case, be intended to provide for the maintenance, well-being

and support of the person who lacks testamentary capacity. In either case, it would be entirely inappropriate for the estate to be depleted by the costs of an application under [the statutory wills regime] … The order as to costs will depend upon the individual facts and circumstances of each case.

Costs Orders in Family Provision Matters Judicial concern as to costs 23.22 In 2010 the New South Wales Court of Appeal advised that family provision proceedings ‘should always be run by the parties and their legal practitioners with a keen eye to the minimisation of costs at all stages’.94 Although against the backdrop of 2005 New South Wales legislation that emphasises the need to ‘facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings’95 and to resolving issues ‘in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute’96 — which initiatives have subsequently seen replication in some other jurisdictions97 — these remarks were not unheralded, especially for litigation over small [page 783] estates. Over 20 years earlier Cohen J expressed the following admonition in relation to family provision litigation in small estates:98 In my opinion the legal profession in both branches has an obligation to reduce the costs of litigation as much as possible when the amounts in dispute are so small. If the parties cannot reach a compromise then it seems to me that by consultation their legal advisers, both solicitors and counsel, should seek to find all means of defining the real issues and confining the evidence in relation to them. Where cross-examination will be unlikely to alter the substance of a witnesses’ evidence it should be dispensed with. The heavy expense of bringing those witnesses from distant places should be actively avoided … it requires everyone in all cases to look somewhat further than [fighting for one’s client’s interests] and to look at what the final issue will be. Because everybody has stood by their respective clients so well there is practically nothing to be argued about. The plaintiff and the principal beneficiary will have to bear the heavy expense of the litigation with little left for them at the end. It is most regrettable and I think it shows up the need for early consultation and early advice to clients as to what at the end they will be facing.

More recently Young J referred to the duty to compromise claims in

relation to small estates and to retain ‘a due sense of proportionality’.99 Remarks of this kind often appear in family provision cases where the costs incurred in the litigation are disproportionate to the amount(s) in dispute,100 an outcome most likely where a small estate is in dispute. In cases of this kind, in particular, judges have expressed the concern that the amount available for distribution amongst the competing beneficiaries is significantly reduced by legal costs.101 Indeed, one judge has branded it ‘offensive to contemporary senses of justice that large proportions of an estate of any size should be consumed in the cost of litigation at the expense of the persons ultimately beneficially entitled in distribution’.102

Costs discretion 23.23 At the same time, the breadth of the court’s discretion, and the absence of fixed rules, in this context, when coupled with the fact that disputes are often driven by deep-seated emotions, have often prompted plaintiffs to pursue litigation to judgment, and led to defendants’ reticence to compromise. To the extent that the costs of the proceedings are ordered to be payable out of the estate — a result in years past almost assumed even in the case of unsuccessful plaintiffs — costs practice gave little spur by itself to compromise. The discretion as to costs — to make such an order as the court considers ‘fit’ or ‘just’ — located in the New South Wales, South Australian, Tasmanian and Western Australian family provision legislation103 does little to [page 784] assist in this regard. Nor do the general statutory provisions or court rules in the remaining jurisdictions that likewise vest in the court a discretion as to costs, with the possible exception of Queensland where the rules state that, although costs are within the court’s discretion, they follow the event unless the court orders otherwise.104 23.24 Until 1 January 2015, the Victorian legislation made specific provision as to costs in family provision cases. It stated that, if the court was

satisfied that an application for a family provision order had been made ‘frivolously, vexatiously or with no reasonable prospect of success’, it could order costs against the applicant.105 This provision was designed to counterbalance the ostensible expansion of eligible applicants for provision effected by statutory amendments in 1998106 but, being expressed in permissive terms, left open a discretion not to order costs against an unsuccessful applicant even if he or she acted ‘frivolously, vexatiously or with no reasonable prospect of success’.107 At the same time, it served, it was said, as ‘a disincentive to would-be applicants whose claims to a moral entitlement [were] tenuous’.108 The recommendation, in a 2013 report, by the Victorian Law Reform Commission that this provision be repealed, on the ground that it had not proven effective in ensuring that only genuine claims were made,109 was implemented as from 1 January 2015,110 leaving the burden of costs to be determined in the exercise of the court’s general costs discretion. 23.25 Were the usual costs practice in civil litigation — that costs ‘follow the event’ — to be applied in the family provision context, an unsuccessful applicant would generally be ordered to pay the defendant’s costs, and be unable to recoup his or her own costs from the estate. If, conversely, the applicant proved successful, the defendant would be required to meet the applicant’s costs. Yet in practice unsuccessful defendants, being the personal representative(s), commonly receive their costs, and those of successful applicant(s), out of the estate.111 Historically, moreover, the practice also allowed unsuccessful applicants costs out of the estate, or at least did not order them to pay the defendant’s costs from their own pocket.112 So far as the costs of unsuccessful applicants are concerned, though, the cases do reveal a swelling curial reticence to burden the estate. An applicant nowadays cannot, the Victorian Court of Appeal observed in 2010, ‘assume that litigation can be pursued safe in the belief that costs will always be paid out of the estate’.113 And in 2009 the New South Wales Court of Appeal warned that in family provision claims ‘[t]he estate does not automatically bankroll the legal costs of every party who wishes to be heard’.114 What underscored this ‘special’ costs treatment of family provision was, stemming from a wide judicial discretion punctuated by inquiry into moral duty, the potential uncertainty facing applicants for provision. As explained by Whelan J in Webb v Ryan (No 2):115

Family provision cases are different to other civil cases in some respects. By their nature, they can be more difficult to predict. There can be wide divergence between different judges as to the

[page 785] appropriate outcome. Claimants often establish a moral obligation, even if they fail. Quantification is inherently uncertain. A claimant might fail because, although a responsibility was owed to him or her, investigation reveals that a greater responsibility was owed to others or that there simply is ‘not enough to go around’. Unlike other civil cases, the financial circumstances of the unsuccessful claimant may be an important factor in relation to costs …

While Whelan J, and indeed other modern judges,116 concede challenges in assessing the likely outcome of a claim for family provision, they have not viewed this as a sufficient reason why the law should depart from the ‘costs follow the event’ principle in this context.117 The imperative of encouraging settlement, and at the same time discouraging the consumption of estates on legal costs and litigation that lacks merit, has driven a widespread change in practice.118

Costs of successful applicant/unsuccessful defendant 23.26 Consistent with the usual approach to the exercise of the costs discretion, an applicant who succeeds in an action to secure (further) provision from the deceased’s estate is, in the ordinary case, entitled to have his or her own costs paid, commonly on an indemnity basis,119 from the estate.120 That the applicant’s costs are to be borne by the estate dictates that, unlike the costs outcome in most inter partes litigation, those costs are not payable by the unsuccessful party (the defendant) out of his or her own pocket.121 There are two reasons for this. The first, more general, one arises out of the notion that proceedings properly instituted by persons interested in a fund result in a benefit to the fund, or at least to claimant(s) to the fund. Costs of the persons instituting those proceedings are, accordingly, payable out of the fund.122 The second reason is that family provision claims are ordinarily made against the executor as defendant,123 who is legally obliged to uphold the terms of the will. As an order for provision is premised on the deceased’s failure to make adequate testamentary provision for the applicant, it is reasoned that it ‘would

not be fair to an executor in carrying out the executor’s obligation to uphold the terms of the will, if the executor were to be held personally liable for an error or oversight on [page 786] the part of the person who made that will’.124 It follows that the defendant’s costs are normally paid out of the estate, irrespective of the outcome of the proceedings, on an indemnity basis.125 23.27 Being grounded in the court’s discretion, which is in turn governed by considerations of justice, the above do not represent inevitable outcomes. Successful applicants may be deprived of some (or even all) of their costs. For instance, extravagant or wasteful incurrence of costs by the applicant will not be subsidised by the estate, especially where the defendant is entitled to the residue of the estate (as an order for costs out of the estate is effectively an order that the defendant pay them).126 A settlement offer that, had the applicant accepted it, would have bettered the outcome he or she has secured at trial, is likewise a factor that may incline the court to reduce a costs order in the applicant’s favour.127 The degree of success enjoyed by the applicant, against the backdrop of the size of the estate, is a further relevant consideration. In Jeffery v Guider,128 for instance, Ball J restricted the costs the successful applicant could recover out of the estate, as her degree of success was small and the costs incurred were disproportionate to that success.129 23.28 Nor can an unsuccessful defendant always be assured of receiving his or her costs out of the estate. An assessment of his or her conduct in the litigation may speak against this, as appears from the following observations by a Victorian judge:130 … the usual practice that a defendant executor will recover their costs from the estate should not apply so universally so as to permit an executor to act in a recalcitrant manner in the defence of a meritorious claim to the detriment of the beneficiaries of the estate, safe in the belief that the costs will be paid out of the estate … An executor who irresponsibly and stubbornly defends the terms of a will, in the face of a meritorious claim, and at the expense of the beneficiary of the estate, should not be immune from any adverse costs consequences any more than a plaintiff who brings an unmeritorious claim.

To this end, unreasonable or improper conduct connected with the conduct of the proceeding, or incurrence of excessive costs, by an executordefendant in the course of the litigation, may deprive the executor of some of his or her costs out of the estate.131 After all, executors must, like trustees, act properly and reasonably in the conduct of litigation over the relevant estate. More generally, as to the consequences of unreasonable acts or omissions by parties to family provision proceedings, a Queensland judge has remarked as follows:132 One obvious feature which results from costs being paid out of the estate is that the entitlement of a beneficiary can vary quite markedly during the course of the proceeding. Every step taken in pursuit of, or in resistance to, a claim diminishes the value of the estate and leads to uncertainty as to the level of entitlement. A rash claim by one applicant can sometimes spark a defensive response by other applicants. An ill considered challenge to a valuation of an asset might necessitate the seeking of formal (and expensive) valuations. Similarly, over zealous responses by the executors or their legal representatives can seriously consume estate funds in ways not apparent to the

[page 787] applicants. Consequently, for every action and reaction in a proceeding of this kind some part of the costs is borne by the estate and its value is thereby diminished. That cost is often paid by beneficiaries who played no part in the cost generating activity. There is consequently a need to ensure that unreasonable behaviour on the part of any party, or the pursuit of claims which have no reasonable prospects of success, makes that party liable to some costs sanction.

In Wang v D’Ambrosio,133 for example, where the executor incurred costs disproportionate to the size of the estate and the issues, and conducted the case with some animus against the applicant, Hodgson CJ in Eq ordered that the executor’s costs be paid from the estate on a party and party basis, rather than an indemnity basis. In more recent times, with a heightened focus on proportionality, it is likely that an executor behaving similarly may not have been treated quite so leniently, but would have been denied an indemnity for costs unreasonably or improperly incurred. In Tapp v Public Trustee (No 2),134 for instance, Tennent J ordered the respondent executors to pay their own costs where, in a case involving a small estate, they actively sought to prevent the applicant, who ultimately proved wholly successful, from applying for provision.

Costs of unsuccessful applicant 23.29 As foreshadowed earlier, it was once the view, even if not always supported by the case law,135 that costs of all parties in family provision disputes would be met from the estate.136 Whereas it remains true, to a substantial degree, that the costs of an unsuccessful executor-defendant will be met from the estate, there is now no longer an assurance that unsuccessful applicants will be similarly indemnified. Nowadays it is much more common for unsuccessful applicants to be denied costs from the estate — that is, to have to meet their own costs.137 This is especially so in circumstances where the claim had poor prospects of success.138 In Carey v Robson (No 2),139 [page 788] for example, the applicant failed to obtain greater provision out of the estate of her late father because, inter alia, she was already financially comfortable and had received $470,000 under the will, and her brother’s moral claim, ‘as she must reasonably have acknowledged’, far exceeded her own as he was extremely ‘income poor’.140 The applicant’s claim was not ‘borderline’,141 according to Palmer J, who ordered that she pay costs. This order was also influenced by his Honour’s criticism of the moneys that had been spent and the manner in which the case had been conducted, particularly on the applicant’s side. That unsuccessful applicants have reasonably sought to minimise their costs, say by instructing the one solicitor, is nonetheless not a reason by itself to oust the general principle.142 Nor is curial sympathy for unfairness in the deceased’s treatment of the applicant something that is salved by way of costs.143 23.30 The reasonableness of an applicant’s claim may, however, dissuade a court from making a costs order against him or her (especially if any such order would have a serious detrimental effect on the applicant’s financial position).144 This takes into account that, as a New South Wales judge noted, ‘[a] decision whether a Family Provision Act claim fails or succeeds produces a black and white result which often belies the fact that the case was borderline and could have gone either way’.145 So in Lillis v Lillis,146 which Hamilton AJ described as a case ‘where along a large part of the way I felt it was a case that

could go either way’, the applicant escaped being ordered to pay costs, as it was by ‘no means unreasonable for the [applicant] or the [applicant’s] legal advisers to have believed that the claim, particularly as moderately and sensibly put … in this case, had reasonable prospects of success’. And as the applicant in Bartkus v Bartkus147 failed not because she failed to establish a need, but because of the size of the estate and the competing claim of the first defendant, the same costs order ensued. [page 789]

Multiple applicants with similar interests 23.31 That an unsuccessful party may avoid a costs order or receive costs out of the estate does not mean that the same should apply vis-à-vis multiple applications by parties with similar interests. It cannot be assumed that, even if all are successful, each will receive their own costs out of the estate.148 It has been observed that ‘[n]othing is more important in [family provision applications] than that the costs should be reduced to a minimum’,149 and so the court will aim to secure that result. This should not be seen as translating to an inflexible rule requiring multiple applicants to join together in instituting proceedings. In Re C White (deceased)150 Harvey CJ in Eq, though allowing multiple applications on one motion even in the face of legislation that contemplated a separate application by each person seeking relief, cautioned:151 If the practice is abused, as by members of one household severing unreasonably or by a person, who has no real chance at all of getting [provision], joining in with someone who has a good chance of success on the application, there must be made a suitable order for costs by which the additional expense, which has been incurred by the severance or by the joinder of a party who had no reasonable hope of succeeding on an application, should be disallowed out of the estate. I think that if the Court moulds its order for costs carefully in order to prevent the abuse of the process no objection can be found to the joinder of applications.

Impact of settlement offers 23.32

The law encourages prospective litigants to settle their disputes

without proceeding to adjudication. One spur to settlement is the general rule that ‘costs follow the event’. The increasing application of this rule in the family provision sphere152 may, to this end, have positive side effects in motivating settlement. Taking into account settlement offers in the exercise of the costs discretion may do likewise. Beyond specific court rules governing the costs consequences of offers of compromise153 — which in any case may not necessarily override any statutory costs discretion specifically conferred by family provision legislation154 — less formal settlement offers (‘Calderbank offers’) can generate costs consequences at general law.155 Broadly speaking, if the offer is rejected, and upon adjudication the offeree obtains an outcome no more favourable than the offer, the court may in its discretion deprive the offeree of costs, or even order the offeree to pay the offeror’s costs, incurred after the date on which the offer was rejected (including on an indemnity basis). 23.33 As the above applies generally in civil litigation, it can impact on the costs consequences of litigation over deceased estates. It is addressed under the family provision heading because of arguments commonly arising in this context,156 and certain features of this form of litigation are said to support a stronger public policy basis to encourage settlement than might apply in other types of case.157 It is, in any case, not always easy to properly evaluate the worth of an [page 790] offer in family provision claims, which are rarely quantifiable by the parties’ lawyers prior to judgment ‘with anything like the prescience possible’ in a claim for a liquidated sum or even one for unliquidated damages.158 But this has not prevented the courts from taking into account defendants’ Calderbank offers in the exercise of their costs discretion where this evaluation is realistic.159 To this end, the New South Wales Court of Appeal has remarked as follows:160 Both plaintiffs and defendants should be encouraged to make open offers as early as practicable in the litigation. The plaintiff who fails to do so promptly may find that none or only part of his or her costs will be ordered to be paid out of the estate. Of course a defendant is also well placed

to make open offers and should do so in cases … where only the quantum of the plaintiffs claim is seriously in issue.

23.34 As foreshadowed in the above quote, defendants also cannot in the main refuse ultimately favourable offers without some costs consequence. The point is illustrated by the ruling of Blow J in Woolnough v Public Trustee (No 2),161 where the applicant made settlement offers to the testamentary beneficiaries, which proved more generous than the outcome secured by the beneficiaries. The estate was a small one. His Honour remarked that ‘[i]n an estate of this size, when the burden of a costs order would fall on the successful applicant, a person with limited financial resources, and thereby deplete the estate’, refusing a reasonable settlement offer ‘should be regarded as a very significant consideration’.162 The beneficiaries were ordered to pay 90 per cent of the applicant’s costs from the date the offer was rejected.

Costs capping and fixing Costs capping in advance of hearing 23.35 The New South Wales court rules empower the court, whether on their own motion or on the application of a party, to specify the maximum costs that may be recovered as between party and party.163 This power, it has been observed, puts into the court’s hands ‘a brake on intemperate and disproportionately expensive conduct of proceedings’,164 and to be effective is properly exercisable in advance of the hearing,165 although it does not preclude its use at the conclusion of the hearing.166 A costs cap avoids the need for assessment and thus facilitates the statutory objective of just, quick and cheap resolution of the proceedings.167 As the rules give no indication as to the process or standard the court should adopt in setting the maximum costs, the matter rests on the proper exercise of judicial discretion. Yet it is clear that proportionality plays a key role. [page 791] Family provision cases are particularly amenable to a statutory cap, in part

because the costs usually come out of a fund in which each litigant is interested, and in part because they are prone to generating litigation the costs of which are entirely disproportionate to the value of the fund. There is a judicial admonition, to this end, that the court ‘should not be reluctant’ to impose a cap to prevent extravagant expenditure of costs in these cases, early in case management, ‘whenever it appears that the parties’ litigious fervour may be leading them to excessive expenditure of costs’.168 The size of the estate, as compared to any prospective award to the applicant, is a critical factor in this context.169 23.36 The remaining jurisdictions contain no specific statutory or rule-based provision dedicated to the capping of costs. However, it has been noted by a Western Australian judge that the general costs discretion vested in a court, when coupled with the increasingly recognised statutory or rule-sourced obligation on judges to ensure proportionality between costs and the importance and complexity of the subject matter in dispute,170 can justify an application to the court being made at the commencement or during the course of family provision proceedings (or at their conclusion, as to which see below) for an order fixing or limiting costs.171

Costs fixing after hearing 23.37 The courts’ power to fix an amount of costs recoverable as between party and party via a costs order172 may, in the alternative, be utilised to cap costs after the event. The statutory direction in New South Wales that the court’s practice and procedure be implemented ‘in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute’173 invigorated trial judges to utilise this power as a vehicle to secure proportionality in family provision disputes.174 This must be read in tandem with a Supreme Court practice note in terms that ‘[o]rders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the net [page 792]

distributable value of the estate (excluding costs of the proceedings) is less than $500,000’.175 In those other jurisdictions that have introduced a dedicated proportionality provision, as noted in the preceding paragraph, there is also a foundation to fix costs after the event. It is possible that South Australian courts could adopt a similar approach for estates of less than $250,000 in view of specific rule-based provisions. These empower the court to summarily determine family provision claims for estates of $250,000 or less, and to make any order or give any direction that may be necessary or desirable in the circumstances.176 The rules add that, in exercising these powers and discretions, a primary object of the court is to minimise costs of the proceedings.177 The breadth of this language suggests that the court may fix or cap costs in this context.

Costs in Determining Beneficiaries Costs of inquiry into beneficiaries 23.38 The court rules in most jurisdictions provide that the costs of inquiries to ascertain the person entitled to a legacy, money or share are payable out of that legacy, money or share unless the court otherwise orders.178 In otherwise ordering, the court’s chief inquiry is the testator’s intention.179 The Australian Capital Territory rules add that, if two or more people are entitled to share in a fund, the court may make an order allowing immediate payment to any of those people of the person’s share without reserving any part of the share to meet the later costs of finding out any other of those people.180

Claims upon intestacy 23.39 Next of kin who succeed in establishing their claims on an intestacy are entitled to be paid their costs out of the estate of the intestate.181 Conversely, an unsuccessful claimant in an inquiry as to an intestate’s next of kin will not receive costs out of the estate unless the investigation benefited the estate.182 If, for instance, the claim does no more than delay, as opposed to

expedite, the final distribution, there is no requisite benefit, and costs lie with the unsuccessful claimant. Where, however, even though the plaintiffs fail to prove themselves as next of kin, the result of the proceedings satisfies the court that there are no next of kin, this benefits the estate as it enables its final distribution to be effected. Hence, the plaintiffs in such a case should be allowed costs out of the estate. In Johnston v Todd,183 for example, the plaintiffs were allowed their costs although their claim as next of kin was displaced, as on the facts ‘[i]t was so doubtful who was right, and so impossible to decide the matter without careful investigation, that if they had not brought forward their claims there could have been no adjudication’. [page 793]

Costs of Appeals in Litigation Over Deceased Estates 23.40 In cases involving a dispute concerning the allocation, distribution or ownership of an estate or fund — including a fund forming the estate of a deceased person — the courts have, for costs purposes, repeatedly noted the distinction between an initial test on the merits and a second attempt by way of appeal. A leading statement is that of Thomas J in Re McIntyre:184 It is … essential that a distinction should be maintained in the approach to costs at first instance and on appeal. Applicants and their advisers should not think that they can bring appeals confident in the knowledge that the estate will in all probability be obliged to pay for the exercise. What I have called the indulgent attitude of judges of first instance to unsuccessful applicants has no place in the appeal process. A litigant has a right under the rules of court to test a judgment by bringing an appeal, but he has no similar right to do so at the expense of the other party or estate.

Costs of beneficiaries as appellants 23.41 Consistent with the foregoing, while a person who unsuccessfully contests a will may not necessarily be deprived of costs out of the estate at first instance, the reverse is the prima facie position if he or she unsuccessfully appeals.185 The same applies in respect of family provision applications.186 Yet this general rule cannot fetter the court’s discretion. If the court finds sufficient cause for bringing the appeal existed, such as where the judgment

below was ambiguous, it may relieve an unsuccessful appellant of the obligation to pay the costs of the other parties.187 It may even allow an unsuccessful appellant costs out of the estate. This occurred in Fowler v Nield,188 where the ultimately successful respondent sought variations of orders on the hearing of the appeal. What led Walsh J to allow the appellant costs from the estate was that, as to what the variations should be — which were of difficulty and importance, the debate upon them occupying considerable time — the appellant’s view prevailed.189 Where the litigants have been only partially successful, each may be ordered to bear his or her own costs.190

Costs of personal representatives as appellants 23.42 Aside from special circumstances, personal representatives (and trustees) who appeal unsuccessfully suffer the usual consequences and pay the costs of the appeal.191 Judicially described as ‘a rule of very long standing’, it is said that, although personal representatives are entitled to their costs out of the estate for getting a curial determination in cases of difficulty, ‘they appeal at their own risk’, as otherwise ‘estates would very frequently be frittered away [page 794] in costs’.192 In determining whether or not to apply the general rule, the court will seek to ascertain whether the appeal was justified. An appeal unsupported by legal advice, which proves unsuccessful, hardly justifies an award of costs in the appellant’s favour. So where, as in Re Bubnich,193 the appeal was, in the court’s opinion, ‘quite unjustified and a waste of time’, the personal representative will be ordered to pay the costs of the appeal personally. The converse may be so if, due to the differing views of the judges below in respect of a substantive matter of importance to the administration of the estate, the personal representative acts reasonably and in the interests of the beneficiaries in appealing the lower court decision. In such a case the court may, in the event that the personal representative proves unsuccessful, nonetheless allow him or her costs out of the estate.194 Ultimately, a personal

representative who, having received legal advice, remains genuinely uncertain as to whether or not to appeal may seek the advice of the court.195 23.43 Importantly, where a personal representative is ordered to pay his or her own costs of the appeal, or to pay the costs of other parties, prima facie those costs fall outside the personal representative’s right of indemnity out of property forming the estate.196 The reason is that the court’s ruling is tantamount to saying that the costs were not properly incurred, the latter principle governing the parameters of those costs covered by the right of indemnity.

Costs of personal representatives as respondents 23.44 The general rule may be otherwise where the personal representative succeeded at first instance, but which decision is reversed on appeal. The logic is that, given the personal representative’s success at first instance, not to defend the proceedings on an appeal and instead concede the point is inconsistent with the duty as personal representative to uphold the will. So merely because in such a case the appeal is decided against the personal representative is no ground to deny him or her costs out of the estate in respect of the proceedings.197 The point is illustrated by the Canadian Supreme Court decision in Geffen v Goodman Estate.198 It involved an allegation of undue influence against the trustees of a testamentary trust. Although rejected at first instance, the Alberta Court of Appeal upheld the allegation, by a majority ruling that its finding the trustees’ conduct in securing the trust was wanting dictated that they should be denied costs out of the estate, noting that the trustees ‘were defending an interest which they had been instrumental in creating for the benefit of persons nominated by them’.199 Hetherington JA dissented, finding that the trustees had acted reasonably and properly in defending the appeal. As the trustees had succeeded at first instance, they would have been acting unreasonably had they failed to respond to the appeal,200 notwithstanding the fact that one of the trustees was also a beneficiary, and so may have had a personal interest in the matter. As such, the trustees were entitled to recover from the trust property all reasonable costs incurred by them. The minority

view found favour in the Supreme Court, which was clearly influenced, at least in part, by the fact that the trustees had succeeded at first instance.201

1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

11. 12.

13. 14. 15.

16. 17. 18. 19.

20.

See generally Dal Pont, Law of Costs, Ch 7. See Dal Pont, Law of Costs, pp 521–38. See Dal Pont, Law of Costs, pp 533–8, 541–64. Aside from an agreement between the parties, costs are payable out of a fund only pursuant to a court order. This point is reflected in the court rules in some jurisdictions: ACT CPR r 1732(3); Tas RSC r 63; WA RSC O 66 r 4(1). Permanent Trustee Co v Redman (1917) 17 SR (NSW) 353 at 360 per Harvey J; NSW UCPR r 42.25(2) (formerly NSW RSC Pt 52A r 42(2)); WA RSC O 66 r 9(2). See Dal Pont, Law of Costs, pp 279–86. See Dal Pont, Law of Costs, pp 302–8. As to this prima facie rule and its exceptions, see generally Dal Pont, Law of Costs, pp 462–70. See 20.32–20.37 (in the context of family provision). See, for example, Chang v Tjiong [2011] NSWSC 1614; BC201110382 (where in these circumstances White J ordered that each party pay its own costs); Cody v Cody (No 3) [2016] VSC 499; BC201607084 (where, in a dispute between executors compromised without a hearing on the merits, McMillan J reasoned that as there were no findings on disputed facts or any unreasonable conduct on the application, each party achieved a result from the application, and that each party incurred costs in an executorial capacity, it was appropriate that their costs be met from the estate: at [19]). Cf Jones v Jones [2012] QSC 342; BC201209439 (where McMeekin J, while unable to find that the applicant had behaved unreasonably in bringing the suit, nonetheless ruled that the decision to discontinue so late in the process ‘must have some impact’, and hence denied the applicant costs after the date at which the applicant should have discontinued: at [72]). See ACT CPR r 1752(2); NSW UCPR r 42.5(a); NT RSC r 63.29(2); Qld UCPR r 703(2). EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59 at 64 per Megarry VC. See also Re National Safety Council of Australia, Victorian Division (in liq) (No 2) [1992] 1 VR 485 at 503 per J D Phillips J (referring to Practice Note [1953] 1 WLR 1452). Harrison v Petersen [2000] QSC 415; BC200007325 (small estate dictated that the unsuccessful party’s costs paid from the estate were to be assessed on the standard basis). As to the impact of offers of settlement in the context of family provision claims, see 23.32–23.34. Whitington v Whitington (No 2) [2009] SASC 178; BC200905646 at [30] per White J; Parker v Australian Executor Trustees Ltd (No 2) (2016) 126 SASR 142; [2016] SASC 115; BC201606354 at [14] per Lovell J. Mitchell v Gard (1863) 3 Sw & Tr 275 at 279; 164 ER 1280 at 1282 per Sir J P Wilde. Will of Elizabeth O’Driscoll (1929) 29 SR (NSW) 559 at 559 per Harvey CJ in Eq; Williamson v Spelleken [1977] Qd R 152 at 155–6 per Williams J (FC). Kostic v Chaplin [2008] WTLR 655; [2007] EWHC 2909 (Ch) at [6] per Henderson J. Horsley v Dunlop (1894) 5 QLJ 85 at 87 per Griffith CJ; Twist v Tye [1902] P 92 at 94 per Gorell Barnes J; Re O’Donnell [1929] SASR 256 at 259–60 per Angas Parsons J; Johnston v Public Trustee (1929) 24 Tas LR 71 at 72–3 per Clark J. Wilson v Jones (1911) 12 CLR 394 at 397–8; BC1190127 per Griffith CJ; Re Egel [1939] SASR 477

21. 22.

23. 24.

25. 26. 27. 28.

29. 30.

31.

32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43.

at 481 per Angas Parsons J; Middlebrook v Middlebrook (1962) 36 ALJR 216 at 217 per Dixon CJ. See 23.6–23.9. Spiers v English [1907] P 122 at 123 per Sir Gorell Barnes P (‘if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them’). Rowland v Portus (1906) 6 SR (NSW) 74 at 76 per Walker J (unsuccessful plaintiffs allowed costs out of estate where ‘the defendant should have “shown his hand” earlier’). See, for example, Wild v Plant [1926] P 139 at 152 per Scrutton LJ (‘I should be reluctant to do anything to create the idea that unsuccessful litigants might get their costs out of the estate, without making a very strong case on facts’); Re Estate of Fogarty (No 2) [2007] ACTSC 40; BC200704730 at [16] per Connolly J (‘Persons wishing to contest probate type matters should be on notice that it does not inevitably follow that this will be a cost free exercise’). See 23.22–23.37. Gray v Hart (No 2) (2012) 10 ASTLR 379; [2012] NSWSC 1562; BC201209989 at [5] per White J. Davies v Gregory (1873) LR 3 P & D 28 at 31 per Sir J Hannen. Mitchell v Gard (1863) 3 Sw & Tr 275 at 277; 164 ER 1280 at 1281 per Sir J P Wilde. See also Oreski v Ikac [2007] WASC 195 (S); BC200708581 at [9] per Barker J (who remarked that the ‘fault’ of the testator has now been more closely defined as including situations where the conduct, habits and mode of life of the testator give grounds to question the purported will, referring to Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244; BC9904032 at [14] per Giles JA and Brownie AJA) (aff’d Oreski v Ikac [2008] WASCA 220; BC200809666). Kostic v Chaplin [2008] WTLR 655; [2007] EWHC 2909 (Ch) at [21] per Henderson J. Fielder v Burgess [2014] SASC 98; BC201406394 at [58]–[63] per Kourakis CJ (and then branding the ‘rule’ as ‘arguably anachronistic in modern times in which there is a greater concern with the need for proportionality in litigation’: at [65]). See, for example, Ryan v Petherbridge [1902] St R Qd 193 at 195 per Real J; Davis v Wangenheim (1907) 7 SR (NSW) 453 at 459 per A H Simpson CJ in Eq; Johnston v Public Trustee (1929) 24 Tas LR 71 at 74 per Clark J; Gray v Hart (No 2) (2012) 10 ASTLR 379; [2012] NSWSC 1562; BC201209989 at [28] per White J (who concluded that the deceased was the cause of the litigation because the way she went about making her wills and keeping their terms secret was likely to lead to a later challenge). Re Cutcliffe’s Estate [1959] P 6 at 19–20 per Hodson LJ. (1922) 31 CLR 148; BC2290103. Lippe v Hedderwick (1922) 31 CLR 148 at 155; BC2290103 per Starke J. See also at 154–5 per Knox CJ; Estate of Dunn [2002] NSWSC 900; BC200206252 at [54] per Campbell J. This did not, however, extend to the costs of the appeal: see 23.40. [2007] WASC 249; BC200709256. South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307 at 312 per Ormiston J. Macartney v Macartney [1908] VLR 649 at 673 per Cussen J. See also at 665 per Hood J. See, for example, Muller v Marriott (1921) 22 SR (NSW) 100. Re Reeve’s Trusts (1877) 4 Ch D 841; Re Maley [1944] SASR 99 at 102 per Richards J. Davis v Wangenheim (1907) 7 SR (NSW) 453 at 459 per A H Simpson CJ in Eq. (1982) 148 CLR 646 at 654; BC8200081. See also Perpetual Trustee Company Ltd v Baker [1999] NSWCA 244; BC9904032 at [13]–[15] per Giles JA and Brownie AJA. (1912) 16 CLR 500 at 503 (PC). See also Gray v Perpetual Trustee Company Ltd (1928) 40 CLR 558 at 566 (PC).

44.

45.

46. 47. 48. 49. 50. 51. 52. 53.

54. 55. 56. 57. 58. 59. 60. 61. 62.

63.

64. 65. 66. 67. 68. 69. 70.

Kerr v Kerr (No 2) [2016] SASC 24; BC201600892 at [3] per Gray J. See, for example, Re Schoenmakers (No 2) [2013] VSC 658; BC201315208 (where the costs of an application to rectify a will, which was prompted by a drafting error by the plaintiff trustee company (via its legal arm) that had drafted the testator’s will, were ordered against the plaintiff). See, for example, McLennan v Fisher (1889) 10 LR (NSW) Eq 246 at 248 per Owen J (where an opponent of a will, who unsuccessfully raised issues of incapacity and undue influence, was ordered to pay the costs of the suit, as the litigation ‘was wholly unjustifiable and merely the outcome of personal spite’, there being nothing in the circumstances connected with the execution of the will that could reasonably excite suspicion). (1962) 36 ALJR 216. Middlebrook v Middlebrook (1962) 36 ALJR 216 at 217 per Dixon CJ, at 218 per Menzies J. (1890) LR 11 (NSW) Eq 134. Brown v McEncroe (1890) LR 11 (NSW) Eq 134 at 147 per Owen CJ in Eq. (1901) 1 SR (NSW) (B & P) 25 at 30. [1929] SASR 256. As to proof in solemn form, see 11.31–11.34. Cf WA RSC O 66 r 9(1) (which provides that, in a probate action to which WA RSC O 73 r 15 applies, ‘a party who only cross-examines the witnesses produced to support the will shall not be liable to pay the costs of the party propounding the will unless the Court considers that there was no reasonable ground for opposing the will’). Re O’Donnell [1929] SASR 256 at 261. (2010) 107 SASR 338; [2010] SASC 171; BC201003969. (1929) 29 SR (NSW) 559. As to the lodgement of caveats in this context, see 11.24–11.27. Will of Elizabeth O’Driscoll (1929) 29 SR (NSW) 559 at 560. Howell v Marsh (1906) 23 WN (NSW) 17 at 18 per Walker J. Will of Millar [1908] VLR 682 at 684–5 per Hood J. Cf Peters v Peters (1907) 7 SR (NSW) 398 at 399 per Street J. As to undue influence in the context of wills, see 2.39–2.47. Kenny v Wilson (1911) 11 SR (NSW) 460 at 472 per Rich AJ; Wild v Plant [1926] P 139 at 151–2 per Scrutton LJ; Re Cutcliffe’s Estate [1959] P 6 at 21 per Hodson LJ; Becker v Public Trustee of New South Wales [2006] NSWSC 1146; BC200608858 at [42]–[47] per Nicholas J; Wharton v Bancroft [2012] EWHC 91 (Ch) (indemnity costs awarded where the claim for undue influence was legally and factually weak). Goodacre v Smith (1867) LR 1 P & D 359 at 362 per Wilde B; Estate of Osment [1914] P 129 at 133 per Evans P; Bool v Bool [1941] St R Qd 26 at 42 per Macrossan CJ (FC); Re Herbert Brothers (deceased) (1990) 101 FLR 279 at 303 per Gallop J, at 316 per Kearney J, at 320 per Martin J (CA(NT)); Roebuck v Smoje [2001] WASC 95; BC200101625 at [57]–[59] per Hasluck J. As to the distinction between undue influence at common law and in equity, see 2.40, 2.41. (1918) 25 CLR 519; BC1800001. See G E Dal Pont, Lawyers’ Professional Responsibility, 6th ed, Lawbook Co, Australia, 2017, pp 238– 40. Nock v Austin (1918) 25 CLR 519 at 529; BC1800001. Daulizio v Trust Company of Australia [2005] VSCA 215; BC200506376 at [23] per Nettle JA. [2003] VSC 381; BC200306780. Trust Company of Australia Ltd v Daulizio (No 2) [2003] VSC 381; BC200306780 at [11]. As to proof

71. 72. 73.

74. 75.

76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86.

87. 88. 89.

90. 91. 92. 93. 94. 95. 96.

in solemn form, see 11.31–11.34. Daulizio v Trust Company of Australia [2005] VSCA 215; BC200506376 at [22] per Nettle JA. Headington v Holloway (1830) 3 Hag Ecc 280 at 282; 162 ER 1158 at 1159 per Sir John Nicholl. Re Scott (1966) 110 Sol J 852; Tarabini v Sylvester (FC(WA), 6 December 1996, unreported) BC9606043 at 5 per Malcolm CJ, with whom Kennedy and Pidgeon JJ agreed; Zivojin v Babic (No 2) [2013] VSC 113; BC201301225 at [9] per Habersberger J. Re Keane (deceased) [1909] VLR 231 at 234 per Hodges J. Boughton v Knight (1873) LR 3 P & D 64 at 77 per Sir J Hannen. See, for example, Rennie v Massie (1866) LR 1 P & D 118; Brown v Sandhurst Trustees Ltd (No 2) [2009] VSC 406; BC200908438 at [23]–[26] per Mandie J (executor ordered to pay costs because, at the time the proceeding challenging testamentary capacity was commenced, he should have realised the strength of the plaintiffs’ case). (1902) 2 SR (NSW) 36 at 47. See 12.1, 12.14. Obiter in both Perpetual Trustee Company Ltd v Watson (1902) 2 SR (NSW) 13 at 29 per Owen J and Cooke v Watson (1902) 2 SR (NSW) 36 at 46 per Walker J can be used to support this conclusion. Will of Sabelberg (deceased) [1911] VLR 157 at 158 per Hodges J. See, for example, Smith v Springford [2009] WTLR 705; [2007] EWHC 3446 (Ch). Hamilton v Hamilton (1913) 30 WN (NSW) 46 at 46–7 per Street J. Bagshaw v Pimm [1900] P 148; Twist v Tye [1902] P 92 at 98 per Gorell Barnes J. Cf Harris v Bagot’s Executor and Trustee Company Ltd [1935] SASR 355 at 357–8 per Reed AJ. Colvin v Fraser (1829) 2 Hagg Ecc 266 at 368; 162 ER 856 at 891 per Sir John Nicholl. (1929) 24 Tas LR 71. Johnston v Public Trustee (1929) 24 Tas LR 71 at 74–5, referring to Shaw and Dickens v Marshall (1858) 1 Sw & Tr 129; 164 ER 660; Tennant v Cross (1886) 12 PD 4. City of Burnside v Attorney-General (SA) (1994) 63 SASR 65 at 67; BC9405368 per Debelle J. See, for example, Large v Higham (No 2) [2010] NSWSC 560; BC201003557 (where the intervener was a beneficiary of the estate over which a family provision claim was made). As to statutory wills, see Chapter 3. The topic is elaborated in R Williams and S McCullough, Statutory Will Applications: A Practical Guide, LexisNexis Butterworths, Australia, 2014, Ch 7. See, for example, Hill v Hill [2001] VSC 135; BC200102509; Boulton v Sanders (No 2) [2003] VSC 409; BC200306152 (aff’d Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 112; BC200403477); Re Will of Jane (No 2) (2011) 8 ASTLR 423; [2011] NSWSC 883; BC201106185; Saunders v Pedemont (No 2) [2012] VSC 601; BC201209721. Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 112; BC200403477 at [153] per Dodds-Streeton JA. Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 112; BC200403477 at [154] per Dodds-Streeton JA. Hill v Hill [2001] VSC 135; BC200102509 at [10] per Byrne J; Hoffmann v Walters (2007) 98 SASR 500; [2007] SASC 273; BC200705857 at [22]–[24] per Debelle J. Hoffmann v Walters (2007) 98 SASR 500; [2007] SASC 273; BC200705857 at [25]. See also Re Will of Jane [2011] NSWSC 624; BC201105369 at [100] per Hallen AsJ. Tchadovitch v Tchadovitch [2010] NSWCA 316; BC201008883 at [3] per Allsop P. Civil Procedure Act 2005 (NSW) s 56(1). Civil Procedure Act 2005 (NSW) s 60.

97. 98.

99.

100.

101. 102. 103. 104. 105. 106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116.

See, for example, Court Procedures Act 2006 (ACT) s 5A(2)(e); ACT CPR r 21; NT RSC r 1.10; Qld UCPR r 5; SA SCCR r 3; Civil Procedure Act 2010 (Vic) s 7; WA RSC O 1 r 4B. Jackson v Riley (SC(NSW), Cohen J, 24 February 1989, unreported) BC8902497 at 2. McMeekin J in Collett v Knox [2010] QSC 132; BC201003226 at [171] expressed his concurrence with these remarks. Szlazko v Travini [2004] NSWSC 610; BC200404329 at [11]. See also Whitington v Whitington (No 2) [2009] SASC 178; BC200905646 at [33] per White J (‘It is especially important that those engaged in disputation about relatively small estates take a practical and reasonable approach to the resolution of their disputes’); Smith v Smith (No 2) [2011] NSWSC 1105; BC201110923 at [77] per Hallen AsJ (‘I commend to parties involved in proceedings in which a family provision order is sought, that every effort, particularly in a relatively small estate, as this one is, to conduct negotiations frankly and openly, to try to resolve the proceedings, and if there are issues or concerns about an offer that has been made, to raise any issues at the first convenient opportunity with the offeror’s solicitors, so that any ambiguities, or other concerns, can be resolved’); Geoghegan v Szelid [2011] NSWSC 1440; BC201111017 at [21]–[26] per Hallen AsJ (lamenting the retention of senior counsel in litigation over a small estate). See, for example, Collett v Knox [2010] QSC 132; BC201003226 at [171] per McMeekin J (who described as ‘worrying’ the way in which the litigation was conducted, in that, despite a modest estate being involved, a 3-day trial was undertaken, principally on the issue of the plaintiff’s status to apply). See also P Vines, Bleak House Revisited? Disproportionality in Family Provision Estate Litigation in New South Wales and Victoria, AIJA, Melbourne, 2011 (finding that a high level of disproportion remains in New South Wales and Victorian family provision litigation). See, for example, Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; BC201005509 at [27] per the court. Daniels v Hall (No 2) [2014] WASC 272; BC201405929 at [26] per E M Heenan J. NSW s 99(1) (cf the former NSW 1982 s 33, which applied different costs rules depending on the class of eligible applicant); SA s 9(8); Tas s 3(1); WA s 14(6). ACT CPR r 1721; NT RSC r 63.03(1); Qld UCPR r 681(1). Vic s 97(7) (as it read before 1 January 2015, namely the commencement date of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic)). J Wade (Attorney-General), Second Reading Speech on the Wills Bill, Victorian Hansard, Legislative Assembly, 9 October 1997, p 436 (explained by reference to the need ‘[t]o ensure that only genuine applications are made’). As to the 1998 amendments, see 16.47, 16.48. Coombes v Ward (No 2) [2002] VSC 84; BC200201249 at [13] per McDonald J; Bentley v Brennan (No 2) [2006] VSC 226; BC200604911 at [7] per Byrne J. Bentley v Brennan (No 2) [2006] VSC 226; BC200604911 at [7] per Byrne J. VLRC, 2013, recommendation 41 (and see pp 118–21). Pursuant to an amendment effected by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic). See 23.26–23.28. See 23.29, 23.30. Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; BC201005509 at [27] per the court. Milillo v Konnecke (2009) 2 ASTLR 235; [2009] NSWCA 109; BC200903916 at [127] per Ipp JA, with whom Macfarlan JA and Sackville AJA concurred. [2012] VSC 431; BC201207161 at [37]. See, for example, Friend v Brien (No 2) [2014] NSWSC 614; BC201403742 at [29] per White J; Daniels v Hall (No 2) [2014] WASC 272; BC201405929 at [14], [23] per E M Heenan J.

117. Webb v Ryan (No 2) [2012] VSC 431; BC201207161 at [38] per Whelan J; Friend v Brien (No 2) [2014] NSWSC 614; BC201403742 at [30] per White J. 118. See 23.29, 23.30. 119. See 23.4. 120. In the Will of Mailes [1908] VLR 269 at 270 per A’Beckett J; Re Bennett [1909] VLR 205 at 207 per A’Beckett J; In the Will and Codicils of Read (deceased) [1910] VLR 68 at 72 per A’Beckett J; Fiorentini v O’Neill (CA(NSW), Mason P, Handley JA and Fitzgerald AJA, 4 December 1998, unreported) BC9806451 at 19 per the court; Re Will of Sitch (deceased) (No 2) [2005] VSC 383; BC200507079 at [2] per Gillard J; Adkins v Adkins [2009] TASSC 32; BC200904245 at [6] per Tennent J. 121. Trapani v Ciocca (No 2) [2013] VSC 510; BC201316709 at [15] per Daly AsJ (noting that ‘it would be rare that, of itself, merely defending a claim for further provision would preclude a defendant executor from recovering their costs from the estate’). 122. See 23.2. 123. The executor, as propounder of the will, is seen as representing the beneficiaries of the will, thereby obviating the need for the beneficiaries to be separately represented: Re Young [1968] NZLR 1178 at 1179 per Wilson J. Having said that, there is nothing to preclude one or more beneficiaries engaging separate representation, but in these circumstances it cannot be assumed that, should they prove unsuccessful, their entire costs will be borne by the estate. The reasonableness of engaging separate representation, in view of the role and position of the executor in the circumstances, will impact on whether (and to what extent) the beneficiaries’ costs may be payable from the estate. See Dal Pont, Law of Costs, p 342. 124. Ray v Greenwell [2009] NSWSC 1197; BC200910027 at [16] per McLaughlin AsJ. See also Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54; BC200901634 at [80] per Basten JA, with whom Allsop P and Ipp JA concurred. 125. See, for example, Re McGoun [1910] VLR 153; Re Sharp [1923] St R Qd 102; Re Nielsen [1968] Qd R 221; Krause v Sinclair [1983] 1 VR 73. 126. Fiorentini v O’Neill (CA(NSW), Mason P, Handley JA and Fitzgerald AJA, 4 December 1998, unreported) BC9806451 at 20 per the court. 127. See 23.32–23.34. 128. [2010] NSWSC 705; BC201004577 at [32]–[35]. 129. The applicant had filed affidavits from a number of other witnesses going to her relationship with her mother (the deceased), which were of marginal relevance. Ball J remarked that, having regard to the (small) size of the estate and the strength of the applicant’s claim, the costs of obtaining them are not costs for which the estate should be liable: Jeffery v Guider [2010] NSWSC 705; BC201004577 at [33]. 130. Trapani v Ciocca (No 2) [2013] VSC 510; BC201316709 at [11] per Daly AsJ. 131. Fiorentini v O’Neill (CA(NSW), Mason P, Handley JA and Fitzgerald AJA, 4 December 1998, unreported) BC9806451 at 20 per the court; Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54; BC200901634 at [80] per Basten JA, with whom Allsop P and Ipp JA concurred. 132. Underwood v Underwood (2009) 4 ASTLR 150; [2009] QSC 107; BC200903633 at [33] per Jones J. 133. [1999] NSWSC 227; BC9901163 at [76]. 134. [2009] TASSC 62; BC200907215 at [23]. 135. See, for example, the following older cases where unsuccessful applicants were refused costs out of the estate: Re Maslin [1908] VLR 641; Re Testator’s Family Maintenance Acts (1916) 12 Tas LR 11; Re Chapman [1918] St R Qd 226; Re Roberts [1919] VLR 125; Re Kennedy [1920] VLR 513; Re Richardson [1920] SALR 24; Re McCreedy [1938] St R Qd 293. The shift has ostensibly been more recent in the

136. 137.

138.

139. 140. 141.

142. 143.

144.

United Kingdom, where in 1981 Ormrod LJ noted that, where the estate is small, the onus on an applicant ‘is very heavy indeed and these applications ought not to be launched unless there is (or there appears to be) a real chance of success, because the result of these proceedings simply diminishes the estate and is a great hardship on the beneficiaries if they are ultimately successful in litigation’, and for that reason ‘judges should reconsider the practice of ordering the costs of both sides in these cases to be paid out of the estate’: Re Fullard (deceased) [1982] Fam 42 at 46. See 23.25. See Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327; BC200707701 at [64]–[68] per Debelle J, with whom Nyland and Anderson JJ concurred; Nicholls v Hall (2007) 2 ASTLR 419; [2007] NSWCA 356; BC200710898 at [57] per the court; Carey v Robson (No 2) [2009] NSWSC 1199; BC200910083 at [21] per Palmer J (remarking that the view that ‘there was little risk, and probably a lot to be gained, in making a claim, however tenuous, because even if the claim failed, the claimant would very likely get his or her costs out of the estate’ is one that ‘should be recognised, once and for all, as thoroughly discredited’); Jones v Jones [2012] QSC 342; BC201209439 at [36] per McMeekin J (who remarked that the dicta in Bowyer reflected the Queensland approach); Dean v Collins (No 2) [2015] WASCA 151; BC201507295 at [34] per Chaney J, with whom Martin CJ and Buss JA concurred (‘it is now the general policy of the court to order that the costs of proceedings under the Family Provision Act be borne by the beneficiaries or claimants who were unsuccessful in the proceedings’); Supreme Court of Western Australia, Consolidated Practice Directions, cl 9.2.2 (item 5). See, for example, Kimberley v Butcher [2001] WASC 118; BC200102523; Lacey v Public Trustee [2010] NTSC 1; BC201000006; Bowditch v NSW Trustee and Guardian [2012] NSWSC 702; BC201204623; Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392; BC201409683 at [139]–[143] per Barrett JA; Simonetto v Dick (No 2) (2014) 10 ASTLR 225; [2014] NTSC 6; BC201400882. As far back as 1995 it was judicially remarked that it is not the function of family provision legislation ‘to provide to an applicant funds to enable that applicant to pursue hopeless litigation and still less to provide funds to protect an applicant from the consequences of pursuing such litigation’: Wentworth v Wentworth (1995) 37 NSWLR 703 at 729; BC9505254 per Powell JA. [2009] NSWSC 1199; BC200910083. Carey v Robson (No 2) [2009] NSWSC 1199; BC200910083 at [10] per Palmer J. Carey v Robson (No 2) [2009] NSWSC 1199; BC200910083 at [11]. See also Re Carn (2011) 9 ASTLR 540; [2011] VSC 275; BC201102601 at [48] per Gardiner AsJ (who, in making a costs order against the unsuccessful applicant, remarked that the claim when considered objectively had no reasonable prospects of success); Dawson v Joyner (No 2) [2012] QSC 24; BC201200602. Koorneef v Lewkowicz [2001] ACTSC 81; BC200104647 at [10], [11] per Miles CJ. Raiola v Raiola [2014] NSWSC 1172; BC201407477 at [11] per Black J (a case where the applicant’s claim ‘always faced substantial difficulty, namely, the strength of his own financial position and his capacity to support his family without the need for further provision’). See, for example, Coombes v Ward (No 2) [2002] VSC 84; BC200201249 (where McDonald J found that ‘there were real questions of fact and law to be determined’, so that ‘[i]t cannot be said … that the application of the plaintiff was so untenable that it could not possibly succeed or that it was groundless and bound to fail’ (at [17]), and that ‘if an order for costs was made against the [unsuccessful] plaintiff it would have an extremely detrimental effect on his financial position’ (at [19]); but as the plaintiff was unsuccessful, when coupled with the (small) nature and size of the estate, ‘justice does not require or dictate that the estate of the deceased should bear the plaintiff’s costs of the proceedings’ (at [20])); Bentley v Brennan (No 2) [2006] VSC 226; BC200604911 at [9]–

145.

146. 147.

148. 149. 150. 151. 152. 153. 154. 155. 156.

157.

158. 159.

[12] per Byrne J (who described the case as ‘not a case of which it can be confidently be [sic] said, that it ought not to have been brought’ (at [9]), where the applicant was impecunious); Harkness v Harkness (No 2) [2012] NSWSC 35; BC201203038 (where the plaintiff’s case failed on eligibility but otherwise had merit, Hallen AsJ made no order for costs against her in view of the fact that she was unemployed and suffering bipolar affective disorder: at [21]–[23]). Re Sherborne Estate (No 2) (2005) 65 NSWLR 268; [2005] NSWSC 1003; BC200507645 at [64] per Palmer J. See also Jvancich v Kennedy (No 2) [2004] NSWCA 397; BC200407396 at [11] per Giles JA, with whom Handley JA and McColl JA concurred (noting that ‘proceedings of this kind involve elements of judgment and discretion beyond those at work in most inter partes litigation’). [2010] NSWSC 359; BC201002556 at [26]. [2010] NSWSC 889; BC201005697 at [24] per Ball J. Cf Savic v Kim [2010] NSWSC 1401; BC201009735 at [169], [170] per Hallen AsJ (who, ‘with some hesitation’, made no order for costs against the applicants, the reason for hesitation being that the applicants should have been aware, or should have been made aware, of the nature and value of the deceased’s estate at the time the proceedings were commenced, and of the very significant obligation owed by the deceased to the defendant; what ultimately swayed his Honour was that, had the estate been larger, the applicants’ claims might well have succeeded). See generally Dal Pont, Law of Costs, pp 339–42. Re C White (deceased) (1932) 49 WN (NSW) 178 at 178 per Harvey CJ in Eq. (1932) 49 WN (NSW) 178. Re C White (deceased) (1932) 49 WN (NSW) 178 at 179. See 23.25–23.30. As to these court rules generally, see Dal Pont, Law of Costs, pp 366–97. See Kimberley v Butcher [2001] WASC 118; BC200102523 at [7] per Sanderson M. As to the relevant statutory provisions see 23.23. As to Calderbank offers generally, see Dal Pont, Law of Costs, pp 398–420. It is hardly confined, though, to family provision litigation: see, for example, Rowe v Storer (No 2) [2013] VSC 635; BC201314912 (settlement offer probative of costs in the context of application for informal will into probate). Including that: first, ‘[f]amily provision litigation involves a fixed fund which risks being substantially depleted by legal costs to the disadvantage of all concerned if litigation is persisted with’; second, ‘[t]he jurisdiction is redistributive rather than punitive or compensatory’; third, ‘family provision litigation is not the fault of the parties in the sense that the parties have not come to court because of the alleged breach, fault or delict of any of them in the way that might otherwise give rise to civil litigation’; fourth, ‘[t]he emotional, let alone financial, strain on litigants in family provision claims can be much higher precisely because it concerns matters of family, relationship and emotions’; and fifth, ‘[t]he amounts at stake are often, but by no means always, not large compared to other matters that come before the court’: Bates v Cooke (No 2) [2014] NSWSC 1322; BC201407964 at [31] per Kunc J. Similar considerations have conspired to make costs capping (see 23.36, 23.37) potentially apt in family provision litigation: Baychek v Baychek [2010] NSWSC 987; BC201006441 at [21]–[23] per Ball J. Re Sherborne Estate (No 2) (2005) 65 NSWLR 268; [2005] NSWSC 1003; BC200507645 at [56] per Palmer J; Daniels v Hall (No 2) [2014] WASC 272; BC201405929 at [29] per E M Heenan J. See, for example, Re Will of Sitch (deceased) (No 2) [2005] VSC 383; BC200507079; Edgar v Public Trustee for the Northern Territory [2011] NTSC 21; BC201101283; Webb v Ryan (No 2) [2012] VSC 431; BC201207161; Briggs v Mantz (No 2) [2014] VSC 487; BC201408189; Daniels v Hall (No 2)

[2014] WASC 272; BC201405929. 160. Fiorentini v O’Neill (CA(NSW), Mason P, Handley JA and Fitzgerald AJA, 4 December 1998, unreported) BC9806451 at 20 per the court. 161. [2005] TASSC 102; BC200507799. 162. Woolnough v Public Trustee (No 2) [2005] TASSC 102; BC200507799 at [13]. 163. NSW UCPR r 42.4(1). The order does not affect costs as between solicitor and client: Dalton v Paull (No 2) [2007] NSWSC 803; BC200705720 at [10], [11] per Macready AsJ. 164. Re Sherborne Estate (No 2) (2005) 65 NSWLR 268; [2005] NSWSC 1003; BC200507645 at [29] per Palmer J. 165. Re Sherborne Estate (No 2) (2005) 65 NSWLR 268; [2005] NSWSC 1003; BC200507645 at [30] per Palmer J. 166. Nudd v Mannix [2009] NSWCA 327; BC200909764. 167. Baychek v Baychek [2010] NSWSC 987; BC201006441 at [25] per Ball J (referring to the Civil Procedure Act 2005 (NSW) s 56(1)). 168. Re Sherborne Estate (No 2) (2005) 65 NSWLR 268; [2005] NSWSC 1003; BC200507645 at [30] per Palmer J. 169. Askew v Askew [2015] NSWSC 192; BC201501404 at [132] per Rein J. 170. See, for example, ACT CPR r 21; Civil Procedure Act 2005 (NSW) s 60; NT RSC r 1.10; Qld UCPR r 5; SA SCCR r 3; Civil Procedure Act 2010 (Vic) s 7; WA RSC O 1 r 4B. 171. Sergi v Sergi [2012] WASC 18; BC201200107 at [50] per E M Heenan J. See, for example, Kossert v Ruggi (No 3) [2012] WASC 454; BC201209230 (where Kenneth Martin J capped legal costs after the event on all sides to one-third of the likely value of the estate, noting that while ‘[a] cap on legal costs will no doubt be an unpalatable result for those concerned’, ‘[i]t is a product, in the end, without criticising anybody, of the stark economic reality of there being insufficient funds in this estate to go any further’: at [18]). 172. See Dal Pont, Law of Costs, pp 480–7. 173. Civil Procedure Act 2005 (NSW) s 60. 174. See, for example, Blanchfield v Johnston [2007] NSWSC 143; BC200701284 at [60]–[62] per Macready AsJ (small estate of $70,000; costs capped at $25,000); Dalton v Paull (No 2) [2007] NSWSC 803; BC200705720 at [11]–[13] per Macready AsJ (costs capped at $25,000 ‘to prevent a small estate being burdened by substantial orders for costs where the plaintiff has only achieved a very modest result’: at [13]); Zappia v Parelli [2007] NSWSC 972; BC200707409 (where Windeyer J capped costs at $100,000, remarking that ‘the parties and their solicitors seem to have lost all sense of proportion in this matter’: at [26]); Wright v Public Trustee [2007] NSWSC 1069; BC200708190 (where McLaughlin AsJ capped the plaintiff’s costs at $50,000, which equated to the quantum of what the plaintiff was awarded out of the estate: at [12]–[14]); Abrego v Simpson [2008] NSWSC 215; BC200801583 (where Windeyer J capped costs at $50,000 for an estate valued at $619,000); Moon v Abrahams [2010] NSWSC 69; BC201000593 (where, in an estate less than $500,000 in size, Macready AsJ fixed the applicant’s costs at $60,000, equating to the legacy he ordered in her favour: at [86]); Dunne v Dunne (2013) 12 ASTLR 299; [2013] VSC 1911; BC201315989 at [40] per Young AJ (who opined that ‘the costs of a successful plaintiff in a small estate should never exceed the amount of his or her award … in order to control the conduct of litigation in small estates’). Indeed, there had been examples of using this power to cap costs before the enactment of the Civil Procedure Act 2005 (NSW) (see, for example, Carroll v Cowburn [2003] NSWSC 248; BC200301482 at [36] per Young CJ in Eq; Moore v Moore [2004] NSWSC 587; BC200404111 at [43]–[47] per Young CJ in Eq), although this had pre-2005 been subsequently constrained to the rare case by the

175.

176. 177. 178. 179. 180. 181. 182. 183. 184.

185.

186.

187. 188. 189. 190. 191.

192. 193.

Court of Appeal, fearing that courts are rarely positioned to know whether or not costs to or in excess of a suggested cap were reasonably incurred: Jvancich v Kennedy (No 2) [2004] NSWCA 397; BC200407396 at [6] per Giles JA, with Handley JA and McColl JA concurred. Practice Note SC Eq 7, 12 February 2013 (commenced 1 March 2013), cl 24. This was preceded by a similarly worded and titled practice note commencing on 1 June 2009 and, before that, Practice Note SC Eq 1 (17 August 2005), cl 58 (which warned that in family provision disputes ‘[p]ractitioners in cases where the estate is under $500,000 should take particular care to minimise costs as it may be that costs of a successful claim will be capped’). SA SCCR r 312(12)(b), (12)(c). SA SCCR r 312(12)(d). ACT CPR r 1730; NT RSC r 63.19; Qld UCPR r 696; Tas RSC r 64; Vic RSC r 63.21; WA RSC O 66 r 4(3). See, for example, Re Vincent [1909] 1 Ch 810 at 814 per Parker J (where giving effect to the testator’s wishes dictated that the costs of the inquiry should come out of the residue). ACT CPR r 709. Perkins v Williams (1905) 22 WN (NSW) 107; Re Grazebrook [1928] VLR 212 at 213 per Lowe J. Sheil v Doneley (1903) 3 SR (NSW) 60 at 64 per A H Simpson CJ in Eq. (1845) 8 Beav 489 at 493; 50 ER 192 at 194 per Lord Langdale MR. [1993] 2 Qd R 383 at 388, with whom McPherson ACJ and Byrne J concurred. See also Lippe v Hedderwick (1922) 31 CLR 148; BC2290103 at 154–5 per Knox CJ (‘the fact that [the appellant] was entitled to contest the will at the expense of the estate in the Supreme Court does not afford any justification for an appeal by him to this Court’); Murdocca v Murdocca (No 2) [2002] NSWSC 505; BC200203390 at [78] per Campbell J (‘the principles for costs on appeal are different, less sympathetic to payment of the costs from the estate than the principles applied at first instance’). See, for example, Lippe v Hedderwick (1922) 31 CLR 148 at 155; BC2290103 per Starke J; Hall v Carney (No 2) [2012] SASCFC 105; BC201207541 (where notwithstanding the appellant’s success on a discrete issue, the appeal was doomed to fail, leading a majority of the court to deny the appellant costs from the estate); Saunders v Public Trustee [2015] WASCA 203 (S); BC201511331. See, for example, Re McIntyre [1993] 2 Qd R 383 at 388 per Thomas J, with whom McPherson ACJ and Byrne J concurred (where the appeal was ‘adventurous’ at best and not based on any apparent error of fact or law by the trial judge); Coombes v Ward [2004] VSCA 51; BC200401682 (where the appeal had no prospects of success). See, for example, Currie v Glen (1936) 54 CLR 445 at 451; BC3690111 per Rich J. [1961] SR (NSW) 152. See also Gale v Gale (1914) 18 CLR 560; BC1400025. Fowler v Nield [1961] SR (NSW) 152 at 161. See, for example, Moran v House (1924) 35 CLR 60 at 67 per Isaacs ACJ and Gavan Duffy J. Re Earl of Radnor’s Trusts (1890) 45 Ch D 402 at 423 per Lord Esher MR; Westminster Corporation v St George Hanover Square (Rector and Churchwardens) [1909] 1 Ch 592; Re Bubnich [1965] WAR 138 at 142–3 per Negus J. Rosenthal v Rosenthal (1910) 11 CLR 87 at 99; BC1000037 per Higgins J (dissenting but not on this point of principle). [1965] WAR 138 at 140 per Wolff CJ, at 143 per Negus J. See also Perpetual Executors and Trustees Association of Australia Ltd v Wright (1917) 23 CLR 185 at 194 per Barton ACJ, at 198 per Isaacs, Gavan Duffy and Rich JJ; BC1700038 (where it was held that the appellant, a trustee, should bear the costs of the appeal personally, because it was not reasonable in the circumstances to consume the trust property in the appellate litigation).

194. See, for example, Rosenthal v Rosenthal (1910) 11 CLR 87 at 98 per Griffith CJ, at 98 per Isaacs J; BC1000037. 195. Lathwell v Lathwell [2008] WASCA 256 (S); BC200901111 at [11]–[13] per the court. 196. As to a personal representative’s right of indemnity, see 13.40–13.42. 197. Perpetual Trustee Company Ltd v Baker [1999] NSWCA 244; BC9904032 at [13]–[15] per Giles JA and Brownie AJA. 198. (1991) 81 DLR (4th) 211. 199. Goodman Estate v Geffen (1990) 67 DLR (4th) 765 at 766 per Stevenson and Stratton JJA. 200. Goodman Estate v Geffen (1990) 67 DLR (4th) 765 at 767–8. 201. Geffen v Goodman Estate (1991) 81 DLR (4th) 211 at 237–8 per Wilson J.

[page 795]

CHAPTER 24

Succession Lawyers’ Responsibility and Liability The Lawyer–Client Retainer Identity of the client Meeting with the client in person Ascertaining the client’s mental capacity

24.2 24.2 24.3 24.5

Scope of Advice Basic obligation to implement client instructions Nature of advice required Where lawyer acts in different capacities Parameters of the duty Expected knowledge

24.8 24.8 24.9 24.10 24.12 24.13

Conflicts Conflicts between clients Concurrent conflicts Successive conflicts Unauthorised profit — charging by lawyers Undue influence

24.14 24.15 24.15 24.16 24.17 24.21

Duties of Care in Tort Owed to Third Parties General rule Failure to notify executor of client will or its contents Duty to disappointed beneficiary The principle from Hill v Van Erp Basis for relief

24.24 24.24 24.26 24.28 24.28 24.29

Where a claim for rectification of the will is available Application where undue delay in implementing instructions Limitations on the scope of the duty to disappointed beneficiaries No duty to beneficiaries of former wills? No duty where lawyers have acted reasonably? No duty where testator’s instructions had yet to be finalised? Limitations regarding advice on the impact of co-ownership of property?

24.32 24.33 24.34 24.35 24.38 24.39 24.40

[page 796] 24.1 Lawyers who practice in succession law owe the same legal and ethical responsibilities to their clients, and to the court and third parties, as do lawyers who practice in other fields. There are accordingly no principles of professional responsibility unique to succession lawyers. There are, however, areas of responsibility of particular significance to practitioners in this field, and the main ones are discussed in this chapter.

The Lawyer–Client Retainer Identity of the client 24.2 The most common lawyer–client retainer in the succession field arises where a testator instructs a lawyer to draft a will or codicil. The retainer — which is no more than a contract for the provision of legal services — substantiates the lawyer–client relationship. Like all lawyers entering into a retainer, succession practitioners must be clear as to the identity of the client. This is critical, because it is the client to whom the lawyer owes legal and professional duties in the main. Outside of the limited circumstances in which the law has extended lawyers’ duties to third parties,1 it is the client to whom the tortious duty of care, and fiduciary duties, are owed, and who is the beneficiary of the lawyer’s duty of confidentiality. The lawyer must, to this end, always retain at the forefront of his or her

mind the person — the client — to whom these duties are owed. For instance, a lawyer engaged by the testator to draft the latter’s will owes the relevant duties primarily to the testator.2 Hence, a request by solicitors for the beneficiary of a deceased estate for information surrounding the lawyer’s preparation of the testator’s will cannot be met without the executor’s authority, to whom, as the testator’s representative, the lawyer’s duty of confidentiality has passed. And communications between testator and lawyer that are privileged retain that status upon the death of the testator, and again can only be waived by the testator’s personal representatives.3 The foregoing also dictates that when engaged by a person who acts in a representative capacity, such as an executor, the lawyer does not represent the personal interests of the executor but those of the estate.4

Meeting with the client in person 24.3 Central to identifying the client is meeting with the client in person when taking instructions. Lawyers who take instructions remotely or from third parties on a (purported) client’s behalf take an unjustified risk when dealing with a testator’s wishes (and, indeed, in retainers generally). Especially when what is involved is the testamentary disposition of a person’s estate, there are few occasions5 where a lawyer could justifiably take instructions other [page 797] than in person. The stakes are heightened in the testamentary context not only due to the legal significance of a valid will or codicil, but also because a lawyer retained for the purposes of drafting (or altering) such an instrument must be alert to the prospect that the client may be subjected to the (undue) influence of another or may otherwise lack capacity. 24.4 These concerns explain why it is good practice to take instructions from the testator individually, not in the company of others, especially those with an interest in the testator’s estate. As explained by Young J in Woodley-Page v Simmons:6

It has been a practice that has been adopted by experienced solicitors in probate matters over many years that if a friend brings the testator into the solicitor’s office, especially if the testator indicates that the friend is a major beneficiary, the testator must be seen alone. The reason is obvious, because unless the testator is seen alone the solicitor is just not able to be sure that he is not being influenced by the friend to make the will in that way. I would have thought this is an a fortiori situation where the will is made in circumstances where the testator is under stress …

Meeting in person with the client ideally should not be confined to taking instructions. A prudent lawyer will be present at the time the will is executed and witnessed,7 and at that time will ask the testator, in the presence of the witnesses, to state that he or she has read over the will, that he or she knows and approves its contents, and that he or she intends the documents to be his or her will. And this is practically essential where unusual methods of execution have been employed for testators with disabilities, such as the blind or illiterate, where the will is signed by another person at the testator’s direction, or where the circumstances raise a doubt as to whether the testator at the time of execution of the will knew and approved its contents.8

Ascertaining the client’s mental capacity 24.5 Meeting with the client is, as foreshadowed above, an important aspect of assessing the client’s mental capacity to give instructions for implementing his or her testamentary wishes.9 A lawyer must be reasonably satisfied that the client has the mental capacity to give instructions, [page 798] and if not so satisfied, must not act for or represent the client as a direct legal representative.10 Having made conventional inquiries about the client’s understanding of the nature of a will, the extent of assets and liabilities and details of family members or other beneficiaries, a lawyer is ordinarily entitled to presume testamentary capacity unless there is reason to suppose otherwise.11 There is, an English judge has said, ‘plainly no duty upon solicitors in general to obtain medical evidence on every occasion upon which they are instructed by an elderly client just in case they lack capacity’, as ‘[s]uch a requirement would be insulting and unnecessary’.12

24.6 Yet lawyers usually lack special expertise or training in assessing testamentary capacity, and may lack authority to inquire of others, such as family members or medical advisors, without the client’s instructions. As such, the presence of warning signs — advanced age, ill health, irrational behaviour, disorientation, clear signs of lack of understanding, or plainly defective recollection of assets or family members — should lead a lawyer to ask questions designed to probe the testator’s understanding of basic matters germane to capacity. A lawyer cannot, it is said, discharge that duty ‘by asking perfunctory questions, getting apparently rational answers, and then simply recording in legal form the words expressed by the client’.13 The following may, to this end, represent good practice:14 • The lawyer should ask questions to ascertain whether the testator understands: – that he or she is making a will and its effect; – the extent of the property of which he or she is disposing; and – the claims to which he or she ought to give effect. • A medical practitioner, preferably one who has been treating the testator,15 should be present, and in making a thorough examination of the testator’s condition should advise [page 799] the lawyer as to the testator’s capacity and understanding (and ideally supply a written certificate for this purpose).16 • The lawyer should make a detailed written record, including the results of the examination recorded by the medical practitioner and notes made by those present.17 24.7 A lawyer who, as a result, believes the testator to exhibit sufficient testamentary capacity can prepare the will. It is advisable in this respect for the lawyer to be present on execution of the will, as ideally should the medical practitioner and any others present at the time of instruction. At every stage detailed notes of the events and discussions should be taken. In this context, it has been suggested that ‘careful solicitors … will not play God — or even judge

— and will supervise the execution of the will while taking, and retaining, comprehensive notes of their observations on the question [of capacity]’.18 In this respect, the greater and more complex the testator client’s estate, the more careful a prudent lawyer will be in documenting his or her instructions and impressions. A lawyer who, on the other hand, is left in real doubt as to the testator’s capacity to give instructions should not draw the will.19 Not only could drawing the will in these circumstances constitute a breach of duty to an incapable client,20 it could potentially expose the lawyer to a claim in negligence — to third parties — if the will is successfully challenged.21 Should the retainer be successfully challenged on the basis that the lawyer should have known of the client’s incapacity, the lawyer may be exposed to a personal costs order for those proceedings.22 And disciplinary tribunal determinations reveal multiple instances where lawyers have been found to have committed unsatisfactory professional conduct arising out of wills and/or powers of attorney whose donors lacked capacity.23 [page 800]

Scope of Advice Basic obligation to implement client instructions 24.8 At a basic level, the lawyer’s duty of care to a testator is to implement the testator’s instructions so far as his or her testamentary dispositions are concerned. A negligent failure to effectuate the testator’s instructions can, once the testator has died, generate a potential finding in negligence to beneficiaries disappointed as a result of the lawyer’s negligence.24 The need to extend the lawyer’s duty of care beyond the testator in these circumstances stems chiefly from the fact that any loss caused by the negligence is triggered by the testator’s death; after all, a testator can, generally speaking, revoke the will at any time before dying, and in so doing neutralise what would have been the consequences of the lawyer’s negligence. After death no such opportunity

remains, and those who may suffer as a result of the lawyer’s negligent failure to effect the testator’s instructions are persons who were not the lawyer’s clients.

Nature of advice required 24.9 Of course, aside from the prospect of future liability to disappointed beneficiaries, the basic tortious duty of care to implement the testator’s instructions carries with it a corresponding duty to ensure that the testator is fully informed as to the consequences of his or her instructions. This may require a prudent lawyer to probe the testator’s instructions, and explain to the testator what unintended consequences may follow from their implementation. For instance, a testator who wishes to exclude from his or her will persons whom the law — via family provision legislation — dictates are owed a duty by the testator to make adequate provision for their maintenance should be informed that those wishes may not withstand an application for provision.25 As the law envisages the admissibility of the testator’s reasons for (not) making provision for a person,26 it may be appropriate to advise the client to record his or her reasons by way of a memorandum. There may be occasions where intended testamentary dispositions would be void at law; for example, a non-charitable purpose gift. And clients ought to be apprised of the operation of laws, of which they may not be familiar — say, the right of survivorship inherent in property held on a joint tenancy,27 the consequences of a mutual will28 or that superannuation benefits fall outside the estate (but can be addressed by way of a binding death benefit nomination)29 — that could impact on the distribution of property after their death. The lawyer is more than a mere scribe.30

Where lawyer acts in different capacities 24.10 Implicit in the foregoing is that it is the lawyer’s duty to inform and advise in a way understood by the client, but not part of that duty to force that advice on the client.31 This distinction is made more difficult where a lawyer acts in more than one capacity, one involving the giving of advice only (as

lawyer), and another making decisions as to the implementation or otherwise of the advice. Where a decision on the advice causes loss, the issue concerns whether the [page 801] lawyer ought to be liable for the loss in the capacity as a lawyer, or in the other decision-making capacity. The point is significant because there may be barriers to liability in the latter capacity but not the former (say, the availability of a contractual indemnity), and liability in the capacity of a lawyer may render the lawyer’s partners jointly and severally liable too. 24.11 The succession environment is amenable to giving rise to challenges of this kind, typically in the event that a lawyer acts both as (co-)executor (or cotrustee) and as lawyer to the estate. This occurred in Hansen v Young,32 where the lawyer was alleged to have breached his retainer by taking a passive approach to the management and investment of shares that formed assets of the estate, which had dropped in value. The issue arose because an indemnity clause in the will allowed executors, but not lawyers, an indemnity out of the estate for acts and omissions that cause loss. Heath J, who delivered the judgment of the New Zealand Court of Appeal, noted that once retained the role of the lawyer was to advise whether trust money should be invested in a particular way, which did not encompass a decision as to whether to invest.33 His Honour could not, as such, accept that the retainer between the executors and the lawyer extended to require the lawyer to act generally in administering and managing the estate. Rather, the lawyer would ‘carry out those tasks on which it was necessary for legal assistance to be given to the executors and trustees’.34 The negligence that had been alleged thus arose out of functions remaining within the scope of the lawyer’s role as co-executor, and so fell outside the scope of the retainer but within the indemnity clause. The factual scenario that generated the litigation in Hansen v Young stands as a caution to lawyers in cases of this kind to attempt, to the extent possible, to separate those tasks carried out in the capacity of a lawyer from those carried out in an executorial or trusteeship capacity. This may involve giving careful

consideration to the circumstances in which advice or action is noted on lawyer letterhead, and the terms in which that advice is couched. In particular, some (preferably written) record on various occasions of the capacity in which the lawyer is acting on any such occasion, to be brought to the attention of others acting in the other capacity, may prove invaluable in preventing misunderstanding and potential litigation.

Parameters of the duty 24.12 As death can generate taxation implications for the testator’s estate,35 the extent to which, if any, the lawyer must advise on these matters depends on the scope of the retainer. It is difficult to escape the conclusion that a lawyer retained to provide succession planning advice must address those taxation implications. Whether a lawyer simply retained to draft a basic will has such broader responsibilities may be queried, however. But a prudent lawyer will make clear in the terms of the retainer the parameters of the duty he or she is assuming and, if taxation implications are outside those parameters, make this explicit.

Expected knowledge 24.13 Of course, lawyers who undertake the preparation of wills as part of their practice are expected to know the law and procedure relating to wills and succession law generally. An attempt to confine the parameters of the retainer more restrictively is unlikely to be effective in this context, as it would de facto be an invalid attempt to reduce the applicable standard of care. Whereas that standard cannot be reduced, it can be raised where the lawyer is, or professes to be, a specialist in succession law.36 [page 802]

Conflicts 24.14

Like all lawyers, those who take instructions in succession law must

avoid a conflict between the interests of the client and their own interests, and not make an unauthorised profit from the retainer.37 In the succession law context the most pervasive manifestations of the fiduciary principles that underscore these proscriptions arise in the lawyer–client charging environment38 and where lawyers secure a benefit beyond their professional fees via the client’s testamentary disposition.39 Although the latter is legitimately a fiduciary issue, the case law has traditionally brought it under the doctrine of undue influence.40

Conflicts between clients Concurrent conflicts 24.15 Fiduciary law also prohibits the concurrent representation of multiple clients with conflicting interests without each client’s informed consent.41 Concurrent representation is not inappropriate where the interests of each client align, which explains why, for instance, it is not uncommon for a lawyer to represent both the executors and the estate. The interests of each of those clients is ostensibly compatible, given the obligation of the executor(s) to implement the instructions of the deceased vis-à-vis the latter’s estate. However, even in this scenario, if the lawyer becomes aware of a conflict between the personal interests of the executor and the interests of the estate, he or she is hard pressed to continue representing either client. Concurrent conflicts may also surface in other ways. A lawyer may receive instructions from an established client to prepare a will on behalf of another person, where that client is to be a principal or major beneficiary under the proposed will and in particular where the client instigates that will. It cannot be assumed in these circumstances that the interests of the testator-client are the same as those of the putative beneficiary. After all, when representing a testator in drafting a will, a lawyer must seek to appreciate the intended objects of the testator’s bounty, and in so doing may give advice contrary to the interests of the proposed beneficiary. A prudent lawyer will refuse the retainer, especially if there are grounds to fear lack of testamentary capacity by reasons such as fragility, illness or advanced age.42

Successive conflicts 24.16 While the court has a jurisdiction to restrain a lawyer from concurrent representation, the jurisdiction is more commonly exercised in the context of successive representation, namely in restraining a lawyer from acting against a former client.43 In these circumstances, it is not fiduciary law that activates the restraint — lawyers do not, after all, ordinarily owe fiduciary obligations to former clients — but instead the protection of confidential information or otherwise the preservation of the appearance of justice. An illustration in the context of succession is found in O’Loughlin v Arnott,44 where a solicitor (H), having drafted the deceased’s penultimate will, was subsequently retained to act for a plaintiff seeking family provision from [page 803] the deceased. It was not appropriate or desirable, declared Sifris J, to continue acting for the plaintiff against the estate of a former client (the deceased), exacerbated by the fact that the relief sought by the plaintiff accorded with the deceased’s penultimate will, but not his final will (which other solicitors had drafted). What, in particular, concerned his Honour appears from the following extract from the judgment:45 [H] is in a real conflict situation and there is a real and sensible possibility of the misuse of confidential information. In preparing the Penultimate Will, the solicitor-client relationship was fully engaged. The plaintiff was not privy to such relationship, despite the fact that she was a beneficiary. During the course of this relationship, matters were discussed and decisions made. These discussions and deliberations, prior to the preparation and execution of a Will are confidential, private and presumably sensitive. They are protected by solicitor-client privilege and there is an expectation by the client that unless so authorised such discussions and deliberations and information in relation thereto will remain confidential. It is indeed this very information that there is a real risk of [H] using against the executors and by extension his former client, the deceased. The nature and character of this usually protected information and knowledge are very much at the heart of the matters that may be relevant to resolving the [family provision] proceeding. [H] is in an untenable position and must cease acting.

Unauthorised profit — charging by lawyers 24.17

Lawyers’ professional conduct rules in most jurisdictions require a

lawyer who receives instructions from a person to draw a will appointing the lawyer an executor to inform that person in writing before the client signs the will, if the lawyer has an entitlement to claim commission, that the person could appoint as executor a person who might make no claim for commission.46 These operate against the fiduciary backdrop, pursuant to which a lawyer-executor cannot charge, as a lawyer, for professional services rendered to the estate in the absence of a charging provision in the will. So in Szmulewicz v Recht47 Habersberger J found that a solicitor-executor, by including a clause in the testator’s will that entitled him to charge, in addition to professional fees, commission equal to percentages of the capital value of the estate and its income, had committed a breach of fiduciary duty, in the absence of fully informed consent by the testator.48 In so ruling, his Honour stated the following:49 [A] solicitor putting forward a will for a client to sign, which contains a clause such as the one in this case, must explain to the client all of the pros and cons of the inclusion of the clause, even if it was the client who suggested the clause, so that it is clear that the client has given his or her informed consent to a clause which otherwise would give rise to an objection on the ground of conflict between fiduciary duty and personal interests. The solicitor cannot assume that the client understands all of the ramifications of including the suggested clause, no matter how sophisticated or astute the client may be with respect to financial matters.

[page 804] A lawyer is not, however, precluded from making application to the court for commission in the absence of an enforceable entitlement to charge commission under the will, and his or her professional work performed may be taken into consideration in fixing that commission.50 24.18 So far as a charging provision in a will is concerned, Holland J in Will of Shannon51 opined that it is the lawyer’s duty to spell out its operation to the testator, to draw attention to the fact that the estate ‘would, or might, thereby be charged more for administration than if he appointed a lay executor or left it to the Court to fix the remuneration’. More recently, the Master of the Supreme Court of Victoria remarked that a solicitor requested to act as an executor should inform the testator of the solicitor’s entitlement ‘to make a claim for commission for doing so, as to the maximum rate of commission

which could be charged and the possible burden such commission may impose both on the corpus and income of the estate’.52 The Master added that to request inclusion of a clause that enables the solicitor to charge for all executorial functions is not reasonable ‘unless the solicitor ensures that the will provides that such charges may be made in lieu of any entitlement to commission and the full import of the clause is explained to the client’.53 The Master went so far as to suggest that acting as an executor of a client’s will ‘is not a position which the solicitor should seek’54 and that, in view of the real potential for a conflict arising between the interests of the client and the interests of the solicitor on such an occasion, ‘it would be preferable that solicitors declined to act as executors’.55 Yet in that solicitors’ availability to act as executors provides a valuable service to the community, the Master may have gone too far in these remarks, provided that solicitors who do so take care to avoid conflicts of interest and ensure that any claims for commission involve no ‘double dipping’.56 Aside from potential civil liability (chiefly for breach of fiduciary duty), ‘double dipping’ raises a strong prospect of disciplinary sanction, including striking off for consistent and intentional behaviour.57 24.19 A lawyer-executor who seeks the beneficiaries’ consent to charge an executor’s commission58 should, it has been suggested, at a bare minimum, disclose the following, in order for that consent to be informed:59 • the work done to justify the commission, with particularity; • if the lawyer is invoicing the estate for legal fees and disbursements, he or she ought to identify with particularity what constitutes the basis for same; [page 805] • that the beneficiaries are entitled to have the court assess the commission pursuant to statute;60 • that the beneficiaries ought to seek independent legal advice as to their position on the consent issue. On an application by a lawyer-executor for an order allowing commission, the lawyer must file accounts in respect of the administration of the estate. A lawyer who, instead of applying to the court for commission, seeks to

compromise his or her claim by negotiation with the beneficiaries, even allowing that they are under no legal disability, engages in a dealing that may place the lawyer’s interest in conflict with that of the beneficiaries. It could involve an abuse of the lawyer’s fiduciary position and thus be vulnerable to attack under the general law and to disciplinary professional action.61 24.20 Because the entitlement to receive a fee for professional services for acting as an executor under a will is presumed to be a legacy,62 the lawyer (or his or her spouse) should not witness the will.63

Undue influence 24.21 The relationship between lawyer and client is presumed to be one of influence, and therefore gives rise, as a matter of law, to the presumption of undue influence over dealings between lawyer and client.64 The reason for this, it is said, is that ‘solicitors are trusted and confided in by their … clients to give them conscientious and disinterested advice on matters which profoundly affect … their material well-being’, such that ‘[i]t is natural to presume that out of that trust and confidence grows influence’.65 This is reflected by professional conduct rules in most jurisdictions via, inter alia, a prohibition on a lawyer, in dealings with a client, exercising undue influence intended to dispose the client to benefit the lawyer beyond the lawyer’s fair remuneration for the legal services provided to the client.66 Where the presumption of undue influence applies to a dealing between lawyer and client, the lawyer bears the burden of rebutting that presumption.67 Consistent with the terms of the professional conduct rules, a lawyer who takes a benefit from a client exceeding professional fees must satisfy the court that the conferral of that benefit was an independent and well understood act of a person in a position to exercise a free judgment.68 24.22 The role of undue influence in the case law has focused primarily on lawyers securing benefits, such as gifts or legacies, from a client in addition to their fee.69 Courts view such voluntary transactions with suspicion, and require the lawyer to adduce evidence, usually of

[page 806] independent legal advice to the client,70 to rebut the presumption that the transaction was not the result of the client’s spontaneous free will.71 Lawyers should, therefore, as a general rule eschew gifts from clients in excess of their professional fees on the basis that these appear to have been the product of undue influence.72 Though there is no absolute prohibition on accepting gifts or legacies,73 lawyers who do so must be careful to ensure that there was no conscious or unconscious misuse of confidence. 24.23 To this end, the professional conduct rules in most jurisdictions direct a lawyer to decline to act on instructions from a person (other than a member of his or her own, or a partner’s, employer’s or employee’s, immediate family)74 to:75 • draw a will under which the lawyer (or an associate)76 will or may receive a substantial benefit77 other than any proper entitlement to commission and reasonable professional fees; or • draw any other instrument under which the lawyer (or an associate) will or may receive a substantial benefit in addition to reasonable remuneration. Instead, the lawyer may offer to refer the person, for advice, to another lawyer (who is not an associate). A breach of this rule will likely produce a finding of professional misconduct, and at least a reprimand.78 [page 807]

Duties of Care in Tort Owed to Third Parties General rule 24.24 As a general rule, a lawyer owes a duty of care to his or her client, but not to the other parties with whom the client is dealing in the relevant transaction.79 As the relationship that ordinarily gives rise to tortious duties in the course of providing professional advice is the contractual relationship of

retainer between lawyer and client, it is ordinarily difficult to justify why a lawyer should be held to owe duties in tort to persons with whom he or she has not entered into a retainer agreement. Absent a contractual foundation for such a duty, the third party must establish the elements that go to substantiating the existence of a duty of care (or rely on a statutory cause of action where available). Courts are not overly keen to accept this for fear of imposing liability to an indeterminate class of persons and of raising conflicting duties. 24.25 However, the succession law context has generated two scenarios, in particular, where the courts have found liability in a lawyer to persons other than his or her client: where the negligence derived from a failure to notify an executor of the will or its contents, and where the negligence deprived intended beneficiaries of the testator’s bounty of their legacies. Each is addressed below.

Failure to notify executor of client will or its contents 24.26 A lawyer who retains custody of a client’s will may be liable in tort to the executor of the will for loss suffered by reason of a failure to locate and notify the executor in due time of the testator’s death. This was the upshot of the High Court’s decision in Hawkins v Clayton.80 The testatrix had instructed solicitors to draft her will in 1970 and, after executing it, left the will in the solicitors’ custody. The appellant was the executor and virtually the sole beneficiary of the will but had no contact with the deceased after a quarrel between them in 1973. The solicitors, though informed of the testatrix’s death by a nephew shortly afterwards, took no action to ascertain the appellant’s whereabouts until 1981, despite the fact that his name was listed in the telephone directory. The deceased’s house, which was the principal asset in the estate, was left untenanted and deteriorated for lack of attention between 1973 and 1981. And the estate suffered the pecuniary penalty for late payment of death duty. This led the appellant to commence proceedings against the solicitors, which proved ultimately successful before the High Court, by a 3:2 majority.81 Deane J viewed the critical factors that gave the relationship between the

solicitors and the executor the character of proximity as the assumption of responsibility by the former and reliance by the latter, which coupled together created a real risk of economic loss.82 His Honour reasoned that the solicitors ‘in accepting responsibility for custody of the testatrix’s will after [page 808] her death … effectively assumed the custodianship of the testatrix’s testamentary intentions’.83 By failing to disclose the existence of the will to the executor they frustrated the testatrix’s intentions; the omission ‘to take any positive steps’ to locate the executor constituted a breach of a duty of care owed to the executor. Brennan J, also in the majority, opined that the natural and foreseeable consequences of the failure to inform the executor promptly was that, when the executor accepted that office and came into possession of the estate, he had lost the benefit of possession of the estate which he would have had as executor had the solicitors informed him of the will.84 As a testator entrusts custody of a will to a solicitor in the expectation that it will be made effectual on his or her death, his Honour considered that, unless some duty of disclosure is imposed on the custodian, ‘the purpose for which the custodian accepted custody would go unfulfilled’.85 This led him to express the relevant duty in the following terms:86 … where the custodian has reason to believe that disclosure by him to the executor of the existence, contents and custody of the will is needed in order that the will may be made effectual, the custodian is under a duty promptly to take reasonable steps to find, and to disclose the material facts to, the executor.

The third member in the majority, Gaudron J, considered the relationship particularly from the perspective of the injured party, arguing that a relationship of proximity might be constituted by the reasonable expectation of a person, ‘including a reasonable expectation that would arise if he turned his mind to the subject’, that another person would provide relevant information, ‘if that expectation is known or ought reasonably to be known by the person against whom the duty is asserted’.87 Her Honour went on to say that ‘[a] person in the position of [the appellant] might, if he turned his mind to the

matter, reasonably expect that persons in the position of the respondents would take reasonable steps to inform him that they had possession of the will appointing him executor, and the respondents ought to have known that such expectation might arise’.88 24.27 Importantly, for the majority, the duty was not one owed to the solicitors’ client, but a duty for the protection of the executor and, derivatively, for the protection of the beneficiaries. The executor was entitled to recover from the solicitors damages for the loss generated by events occurring when he was ignorant of his title to the estate before he had elected whether or not to renounce the office of executor. This loss included the deterioration of the house, the removal and destruction of furniture that was untended in the house, the loss of any rent that should have been paid by a nephew of the testatrix in respect of his unauthorised occupancy of the house, the loss of income derived from the house and the penalty for late lodgement of a return for death duty.

Duty to disappointed beneficiary The principle from Hill v Van Erp 24.28 The judgment of the High Court in Hill v Van Erp89 establishes that a lawyer, who receives instructions from a testator in respect of the drafting and execution of his or her will, can owe a duty of care, not only to the testator, but to the beneficiaries whom the testator intends to benefit, even though the beneficiaries are not clients. The duty is one to take reasonable care to effectuate the client’s intentions. So if a beneficiary suffers a loss as a result of the lawyer’s failure to take that care, the lawyer will be liable in tort for that loss. In Hill v Van Erp the appellant [page 809] solicitor prepared a client’s will, which he had witnessed by a person known to be the husband of the beneficiary. This rendered the gift invalid under statute.90 The court held that the solicitor, in negligently preparing the will,

had breached the duty of care owed to the beneficiary.

Basis for relief 24.29 In recognising a lawyer’s duty in tort to a disappointed beneficiary of a will, the court in Hill v Van Erp, by a 5:1 majority,91 applied the seminal English case in the area, Ross v Caunters.92 But their Honours could not agree on the basis for curial intervention.93 Although the majority judges did agree that the plaintiff must establish more than just foreseeability of loss, and that it was foreseeable that a beneficiary would suffer loss if a lawyer negligently performed his or her duty to the testator in drafting the will,94 conceptually the consensus proceeded little further. Their Honours did not see proximity of itself as a common element underlying each class of case attracting a duty of care, relying instead on policy considerations to mark the outer boundaries of the tort. Dawson and Toohey JJ did, however, consider that in such cases there is an assumption of responsibility and reliance of a kind suggesting a relationship of proximity. Dawson J explained the point as follows:95 … whilst there will usually be no specific reliance by an intended beneficiary upon a solicitor retained to attend to the will, the intended beneficiary’s interests are totally and unavoidably dependent upon the proper performance of a function within the sole province of the solicitor. And, it might be added, in that situation the solicitor knows of the beneficiary’s dependence and in that respect may be regarded as having assumed responsibility towards the intended beneficiary.

The court rejected that in such cases the right to recover is based on an assumption of responsibility by the lawyer or on reliance by the plaintiff. The lack of anterior relationship between lawyer and beneficiary, according to Brennan CJ, precluded any such assumption.96 Instead the Chief Justice sourced the relevant duty from the corresponding duty owed by the lawyer, albeit contractually, to the testator.97 Gaudron and Gummow JJ, on the other hand, identified the lawyer’s position of control over the interests of the beneficiary as that which attracts the duty of care.98 24.30 The concerns noted above that ordinarily predispose a court to wariness in imposing a tortious duty to non-clients — the prospect of indeterminate liability and the creation of conflicting duties — were largely absent on the facts of Hill v Van Erp. As an intended beneficiary under a will is

a specific, identifiable individual rather than a member of an unascertained class, to impose liability upon a lawyer in such a situation does not raise the prospect of indeterminate liability.99 And as the interests of the client (testator) and the beneficiary coincide in cases of this kind, there was no need for the court to impinge upon its dislike of creating conflicting duties of care. [page 810] 24.31 Underscoring the outcome in Hill v Van Erp are various reasons that justify extending lawyers’ liability in tort beyond the testator-client, and to intended beneficiaries. Most fundamentally, this extension is informed by the basic notion that there should not be a wrong without a remedy. The point was expressed years earlier by a New Zealand judge as follows:100 It is that in all justice one who is responsible for causing damage to another by his negligence ought generally to pay for it … It is altogether reasonable that those who because of their occupation and the skill, experience and expertise associated with it are engaged to perform a service which if properly performed, will benefit an identifiable person should make good the loss which the latter may suffer from the former’s negligence.

Various other related justifications have been proffered for extending lawyers’ liability in tort in this context, including the following: • Without such an extended duty, the persons who have a valid claim have suffered no loss (the testator and the estate), whereas the persons who have suffered a loss have no claim (the disappointed beneficiary(ies)).101 Unless those beneficiaries can activate the court’s jurisdiction to rectify the will in accord with the testator’s instructions,102 they lack a remedy. This in turn leaves a lacuna (gap) in the law, which the requirements of practical justice dictate must be filled. • The public relies on lawyers to prepare effective wills, and so it would be a failure of the legal system not to recognise some legal responsibility attached to this;103 it follows that recognising such a duty is likely to promote professional competence in dealing with wills.104 • The existence of a duty of care highlights the importance of legacies in a society that recognises the right of citizens to leave their assets to whom they please.105

Where a claim for rectification of the will is available 24.32 The court has a statutory jurisdiction to rectify the will in accord with the testator’s instructions.106 It follows that, if a claim for rectification of the will is open on the facts, the disappointed beneficiary should, in line with the duty to mitigate his or her loss, pursue rectification proceedings before proceeding against the lawyer.107 Where a successful claim for rectification entitles the disappointed beneficiary to his or her intended legacy, any damages for negligence against the lawyer are limited to costs of rectifying the will.108

Application where undue delay in implementing instructions 24.33 The principles arising out of the Hill v Van Erp scenario have application to multiple scenarios where a lawyer has failed to properly effect the deceased’s instructions. One is where the lawyer unduly delays implementing those instructions, and the deceased’s dies in the interim, leaving those instructions unfulfilled and its beneficiaries frustrated. This is illustrated by the leading English case, White v Jones,109 where the testator instructed the defendant law firm on 17 July 1986 to prepare a new will, to include £9000 legacies to each daughter, but the firm sat on those instructions [page 811] until 16 August, when an internal office memorandum was prepared on the matter. Yet little progress ensued, punctuated by broken appointments with the testator, and on 14 September the testator died unexpectedly without executing the new will. Accordingly, his earlier will, which disinherited his daughters, remained unrevoked. The House of Lords found the firm liable to the daughters as disappointed beneficiaries. This outcome shows that, independent of the risk of the client’s death, lawyers must act within a reasonable time to effect their client’s instructions. It follows, of course, that the existence of a plain and substantial risk of the client’s imminent death (or loss of mental capacity) requires immediate steps to effecting a valid testamentary document110 (and this includes an informal will),111 thus constraining the time frame that informs what is unduly dilatory

in this context.112 Even outside the ‘unduly dilatory’ scenario, there may be occasions where lawyer liability to disappointed beneficiaries may stem from a failure to act in a timely fashion to formalise testamentary instructions. For example, in Maestrale v Aspite113 the defendant solicitor obtained instructions from the plaintiff’s father for the preparation of a new will, at which time the father was terminally ill. The defendant failed to respond to the plaintiff’s calls for urgent advice, and the father died before executing the will. The plaintiff alleged that the defendant had been negligent, which in turn had caused the plaintiff a loss of the greater share he would have received under the putative will. Fullerton J noted that the deceased had given clear and unambiguous instructions to the defendant to prepare a will under which he intended that the plaintiff would benefit, to a material degree, differently from his other children. The evidence supported the inference that the deceased was thereafter awaiting the defendant’s attendance to render those intentions final and enforceable.114 The basis of liability in this context was explained in the following terms:115 By accepting those instructions, and in pursuance of carrying them out, I am satisfied that [the defendant] had a coexistent duty to the plaintiff to ensure that in the event of any change in his father’s health or capacity he would make prompt arrangements to attend with a formal will or, if time did not permit, to attend with the file notes so that they might be signed and an informal will created. The breach of duty did not reside in an unduly dilatory approach to preparation of the will by allowing the passage of seven days before the will was prepared but in his failure to respond to the plaintiff’s urgent calls for advice and attention in the interim.

[page 812]

Limitations on the scope of the duty to disappointed beneficiaries 24.34 Critical to the success of any action against a lawyer by a disappointed beneficiary is proof by the latter that he or she was intended by the testator to take under the will to the extent which he or she alleges. Where, as in Hill v Van Erp, a will exists but its effect is denied because of the negligence of the lawyer in question, the disappointed beneficiary will ordinarily face little difficulty proving his or her entitlement under the will. But where the evidence

does not reveal that the disappointed beneficiaries were intended to take, that the lawyer is proven to have been negligent in advising the testator cannot overcome the fact that they have suffered no loss as a result of that negligence.116 The High Court in Hill v Van Erp was at pains to emphasise that its decision should not be seen as opening a wide door to the availability of claims by third parties against professionals. In the words of Gummow J:117 It is by no means to espouse any general proposition to the effect that if A promises B to perform a service for B which B intends, and A knows, will confer a benefit on C if performed, A owes to C a duty in tort to perform that service with reasonable skill and care. The question whether this or any variant of a proposition in such broad terms should be accepted must be left for another day. The present case lies in a narrower compass.

It stands to reason that not all disappointed beneficiaries can legitimately look to the testator’s lawyer for compensation to fulfil their expectation. Several instances where the courts have shown reticence to broaden the tortious duty in this regard are discussed below.

No duty to beneficiaries of former wills? 24.35 As a general principle, lawyers taking instructions for the preparation of a new will owe no duty of care to beneficiaries under a previous will. The issue has surfaced in circumstances where the beneficiaries of a previous will allege that a new will, which has taken effect because of the testator’s death, was vitiated due to the testator’s lack of capacity. In Worby v Rosser118 the residual beneficiaries under the testator’s original will (his common law wife and two children) claimed that the defendant solicitor had been negligent in allowing the testator to execute a new will when the testator lacked testamentary capacity and had been unduly influenced by the beneficiary under the new will. They sought to recover their own costs incurred in resisting probate of the new will and propounding the earlier will. The English Court of Appeal saw no gap to be filled in the circumstances; the beneficiaries of the previous will had other remedies open to them (for instance, seeking to have the will set aside for lack of capacity or undue influence), and had not suffered any loss as a result of the solicitor’s alleged negligence. Chadwick LJ reasoned as follows:119 If the solicitor’s breach of duty under his retainer has given rise to the need for expensive probate

proceedings, resulting in unrecovered costs, then, prima facie, those costs fall to be borne by the estate … If the estate bears the costs thereby and suffers loss then, if there is to be a remedy against the solicitor, it should be the estate’s remedy for the loss to the estate. There is no need to fashion an independent remedy for a beneficiary who has been engaged in the probate proceedings. His or her costs, if properly incurred in obtaining probate of the true will, can be provided for out of the estate … (including the costs to which the beneficiary is entitled out of the estate).

[page 813] His Lordship added that the practical difficulties likely to arise were solicitors held to owe duties directly to beneficiaries under earlier wills powerfully support the view that it would be inapt to furnish a remedy in circumstances in which it is not needed.120 24.36 While Chadwick LJ did not identify those difficulties, his Lordship ostensibly had in mind potential conflicts between duties owed to beneficiaries of different wills. The Alberta Court of Appeal in Graham v Bonnycastle121 addressed the point more explicitly. The testator’s daughter had been appointed interim guardian and trustee because of her father’s dementia. The testator remarried, and sought the assistance of the solicitors to execute a new will bequeathing a portion of his estate to his new wife. The testator’s children, as beneficiaries under the previous will, unsuccessfully sued the solicitors in tort. McFadyen JA, with whom Ritter JA concurred, made the following remarks regarding the conflicting duties issue:122 There are strong public policy reasons why the solicitors’ duty should not be extended. The imposition of a duty to beneficiaries under a previous will would create inevitable conflicts of interest. A solicitor cannot have a duty to follow the instructions of his client to prepare a new will and, at the same time, have a duty to beneficiaries under previous wills whose interests are likely to be affected by the new will. The interests of a beneficiary under a previous will are inevitably in conflict with the interests of the testator who wishes to change the will by revoking or reducing a bequest to that beneficiary.

Their Honours added that determining testamentary capacity, which is challenging for the solicitor,123 should not be made more difficult by the unnecessary extension of duties to others. A concern was that the fear of being sued by beneficiaries under prior wills could create the danger that solicitors would decide against the testator’s interest in determining capacity, where any doubt arose as to testamentary capacity and previous wills existed. As a

consequence, according to their Honours, solicitors may be reluctant to act for elderly testators who wish to change provisions of their will.124 24.37 Consistent with what was said by the English Court of Appeal in Worby, McFadyen JA also noted that extending the tortious duty of care to disappointed beneficiaries is justified only where no other remedy exists, namely where there is a gap in the law that should be filled. The point was explained as follows:125 … there is no need to extend the solicitor’s duty of care to include the beneficiaries under the Original Will. Those beneficiaries have a right to challenge the New Will on the ground of lack of testamentary capacity. If the testator had testamentary capacity at the time of the New Will, the testator was entitled to do what he did and no loss is caused by any negligence of the solicitor. If the testator did not have testamentary capacity, the New Will is not admitted to probate and, in the absence of other objections, the Original Will takes effect.

In line with the foregoing, McFadyen JA noted that costs incurred to challenge the new will should be met out of the estate. If the estate thereby suffered a loss, it had its own remedy against the negligent solicitor. On the facts, the beneficiaries of the former will had commenced such an action, but chose to settle it rather than having the issue decided. Therefore, they could not now claim against the solicitors.126 The New Zealand Court of Appeal in Knox v Till127 had 5 years earlier reached a similar conclusion, albeit by an ostensibly different process of reasoning. The appellants, who were residuary beneficiaries under an earlier will, successfully challenged a later will on the grounds of the testator’s lack of testamentary capacity. They then sued the solicitors who drafted the [page 814] testator’s later will, seeking to recover the costs incurred in challenging the will. Henry J, who delivered the reasons of the court, rejected this claim on the grounds that ‘[t]he degree of proximity in relationship is too distant; there was no assumption of responsibility by the respondents; the appellants placed no reliance on the respondents; no policy considerations sufficient to justify the imposition of the duty have been proffered’.128

No duty where lawyers have acted reasonably? 24.38 The law of negligence does not impose upon a lawyer a standard of perfection. Not every mistake entitles a client, or third party, to maintain a claim against a lawyer in negligence.129 It follows that a lawyer who has acted in line with the applicable standard of care should not attract liability to third parties any more than liability would be attracted by the same act or omission in respect of his or her own clients. For example, in Miller v Cooney130 a husband and wife owned two properties as joint tenants. On the wife’s death in 1999, the properties passed to the husband as the surviving joint tenant. In 1998 husband and wife instructed the defendant solicitor to alter their existing wills and consequently new wills were prepared for them to sign. The wife’s new will directed that the properties be divided between various family members identified in cll 3 and 4. But because the properties were held jointly with her husband, neither of these clauses were effective. After the wife’s death, those family members commenced proceedings against the solicitor for negligence alleging that he had failed to exercise due care and skill in drafting the wife’s will to the standard of a competent solicitor, and failed to take care to ensure that effect was given to the wife’s testamentary intentions. Sheller JA, with whom Hodgson and Santow JJA concurred, distinguished Hill v Van Erp on the ground that here the solicitor was unaware and had no reason to believe that the wife was not the registered proprietor of the properties, whereas the solicitor in Hill v Van Erp knew that the attesting witness was the husband of the intended beneficiary.131 On the facts, the claim rested on showing that the solicitor was duty bound to inquire about the ownership of the two properties. His Honour was not convinced that the circumstances attracted such a duty, reasoning as follows:132 On [the wife’s] instructions merely to change some of the beneficiaries from those in a previous will, which had obviously been prepared by a lawyer, and in the circumstance that the dispositions under the wills of [the wife] and her husband were not inconsistent with the subject properties being owned by [the wife], it was also open to the trial Judge to find that the solicitor acted reasonably and was not in breach of his duty of care to draw an effective will by failing to inquire further about [the wife’s] ownership of the properties. I agree with his Honour’s conclusion.

No duty where testator’s instructions had yet to be finalised?

24.39 No liability in tort to a disappointed beneficiary ordinarily accrues if that beneficiary cannot establish that the testator’s instructions, which the lawyer has not effected, had been finalised. The point is illustrated by the Queensland Court of Appeal’s decision in Queensland Art Gallery Board of Trustees v Henderson Trout (a firm).133 The appellant expected to receive a bequest of an art collection under the deceased’s will. The deceased’s will did not, at the time of her death, contain any such bequest, though a new will prepared for execution prior to her death did. The evidence showed that the deceased remained ambivalent about restoring the appellant as a major beneficiary of her will. Her lack of firm intention to benefit, coupled with the indecisive nature of the instructions to her solicitors, their Honours viewed as fatal not [page 815] only to the existence of a duty of care, but to the elements of breach and causation too.134 In so ruling, Thomas JA made useful observations regarding the duties of lawyers in this regard:135 In the will-making area the decision whether to make or not make a will, and whether to benefit or not benefit particular persons is entirely that of the intending testator or testatrix. It is up to the client to indicate when he or she is ready to make a particular will. Attempts by a solicitor to hurry up an undecided client or to seek to benefit particular beneficiaries are fraught with danger. Recognising this, Courts should be slow to inflict busybody functions or duties of this kind upon solicitors and other professional advisers.

On the facts, it followed that the cause of the appellant’s ‘loss’ was not any breach by the solicitors, but the deceased’s lack of firm intention to benefit the appellant. That the court was influenced by the nature of the client appears from Thomas JA’s remark that the conduct of the solicitor ‘which in other fact situations might be held to have been unduly dilatory may be seen here as a response within acceptable limits to indecisive instructions from a difficult client who was stalling’.136

Limitations regarding advice on the impact of co-ownership of property?

24.40 A line of authority supports the proposition that the duty of care to ensure the testator’s wishes are given proper effect extends to advice about severance of joint tenancies.137 After all, clients may be unaware that property they hold as joint tenant does not form part of their estate,138 and so cannot be bequeathed to desired beneficiaries unless the tenancy is severed inter vivos. Without advice to this end, the testator’s plan of testamentary disposition may be frustrated, and those beneficiaries’ interests lost. 24.41 Conversely, if the testator and the intended beneficiary of the testator’s interest hold the property as tenants-in-common, and a family member might have a claim under family provision legislation, it may be foreseeable that the beneficiary’s entitlements might be diminished by a successful claim, unless a joint tenancy is created or a gift is made inter vivos (although this must be qualified in New South Wales in view of notional estate orders).139 But this does not necessarily make the lawyer liable to the beneficiary in the event of not inquiring and giving advice in this context. The latter is the upshot of the High Court’s decision in Badenach v Calvert.140 The deceased (D) instructed a lawyer (B) to draft a will leaving his entire estate to C. B failed to advise that a family provision claim by D’s estranged daughter could potentially frustrate the deceased’s intention to benefit C, and that there was scope to foreclose this outcome by altering ownership of land D and C held as tenants-in-common to a joint tenancy. The High Court, in reversing the lower court’s ruling that B had breached a duty of care to C, found that the initial retainer did not oblige B to advise D on how to avoid a family provision claim. As explained by French CJ, Kiefel and Keane JJ:141 Whilst advice about the possibility of a claim against [D’s] estate is clearly relevant in the context of the retainer, advice about how to avoid such a claim by inter vivos transactions with property interests is not. From the solicitor’s perspective it could not be assumed that the client would need this latter advice … [C’s] case is that [B] should have volunteered this advice. However, it is difficult to see how [B] had a duty to do so merely because [B] has informed the client of the possibility that a claim could be made by the daughter but that, absent further information, he could not be any more certain about it occurring. It cannot be reasoned from the fact that the

[page 816] daughter later brought a claim that [B] should have appreciated that this was likely to occur. Even if he had done so, it is still difficult to see that the appreciation of this possibility would have

warranted advice of this kind. Neither [B] nor [D] could have known with any certainty whether the claim would be successful and, if so, the extent of the provision that might be made for the daughter from [D’s] estate. [D’s] initial instructions regarding the preparation of his will, to benefit [C] alone, would not have been sufficient to convey to [B] that [D] would wish to take any lawful step to defeat any claim which was made by the daughter. At this point [B] was not to know what view the client might take of whether the daughter had a claim, moral or legal, upon him or his estate.

In a concurring judgment, Gageler J conceded that reasonable care in effecting a testator’s instructions might require a lawyer to do more than merely draft and ensure the proper execution of a will; say, where steps to sever a joint tenancy are integral to effecting the testator’s intention that specified property be given by the will, where taking those steps can properly be seen as part of the will-making process.142 On the facts, however, the scope of B’s retainer did not go so far. 24.42 Unlike the Hill v Van Erp scenario, in facing a proposed inter vivos transaction it cannot be assumed that, when client instructions are received, the interests of the client and the disappointed beneficiary align. Such a transaction, having the effect of immediately depriving the client of an interest in property, may not be in his or her interests. Conversely, at any point before completing an inter vivos transaction, a client can change his or her mind despite any promise to an intended beneficiary thereof. These scenarios, which are capable of creating conflicting interests, do not arise if a lawyer is merely carrying into effect a testator’s intentions as stated in his or her final will.143 In Badenach even had a duty of care extended to C, the High Court remained unconvinced that C had proven the requisite causation between its breach and C’s alleged loss. In particular, C had not established what D would have done if advised of the joint tenancy option. D’s decision would have rested on consideration of, inter alia, the risks concerning the irreversible nature of the inter vivos transactions, and the associated cost and delay. Coupled with the uncertainty that D’s daughter would make a family provision claim, the plurality saw ‘no reason to think that even if [D] had been given the advice contended for, he would have been more likely to undertake transactions of this kind than, say, simply pursuing his original course of action, by which [C] was to be the sole beneficiary under [D’s] will’.144

1. 2. 3.

4. 5. 6.

7.

8.

9.

For circumstances where a lawyer who drafts a testator’s will may owe legal duties to a person interested in the estate, see 24.26–24.40. Hall v Bennett Estate (2003) 64 OR (3d) 191 at [48], [49], [56] per Charron JA. This represents the position at general law (see Chant v Brown (1849) 7 Hare 79; 68 ER 32; Bullivant v Attorney-General (Vic) [1901] AC 196 at 206 per Lord Lindley; Gartside v Sheffield Young & Ellis [1983] NZLR 37 at 44 per Cooke J, at 49 per Richardson J, at 55 per McMullin J) as well as under the uniform evidence law (which defines a ‘client’ to include, where the client has died, ‘a personal representative of the client’: Evidence Act 1995 (Cth) s 117(1); Evidence Act 2011 (ACT) s 117(1); Evidence Act 1995 (NSW) s 117(1); Evidence (National Uniform Legislation) Act 2011 (NT) s 117(1); Evidence Act 2001 (Tas) s 117(1); Evidence Act 2008 (Vic) s 117(1)). However, s 121(1) of the uniform evidence law adds that the aforesaid does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died. This provision, it has been said, ‘abrogates a claim for privilege which the deceased person as a client or party could have maintained but for his or her death if the privileged documents or communications are relevant to the deceased’s intentions or competence’: D’Apice v Gutkovich (No 1) [2010] NSWSC 1336; BC201008737 at [20] per White J. Sabin v Ackerman (2014) 846 NW 2d 835 at 842–5. Say, where an existing client wishes to make a very minor change, in which case contact by telephone or email may be sufficient. More generally, taking information in an ‘online’ process is not objectionable provided that it forms only part of the overall process of taking instructions. (1987) 217 ALR 25 at 34; BC8701133. See, for example, Petrovski v Nasev [2011] NSWSC 1275; BC201110962 (where initial instructions came from a proposed beneficiary who was a longstanding client of the solicitor, in circumstances where the solicitor had been informed by others that the testator — whom the solicitor had never met in a professional capacity — was elderly and unwell; in these circumstances Hallen AsJ remarked that the solicitor does not discharge his or her duty by ‘simply reading the words of the will to her, whilst the beneficiary who has given initial instructions and who is said to be causing the will to be made, remains present, and by relying upon the [testator’s] nods, apparently affirmatively, to demonstrate an understanding of the terms of the Will’: at [298]). Esterhuizen v Allied Dunbar Assurance plc [1998] 2 FLR 668 (where Longmore J remarked that it is common form for a solicitor to invite a client who has approved a draft will to be attended by the solicitor at the time of signing and attestation). Scarpuzza v Scarpuzza (2011) 4 ASTLR 244; [2011] WASC 65; BC201101263 at [40] per E M Heenan J. See, for example, Dellios v Dellios [2012] NSWSC 868; BC201205663 (where the solicitor took instructions from a beneficiary under the will, and asked leading questions of the deceased, translated to Macedonian by family members, without knowing whether the questions were accurately translated or whether the deceased accurately answered the questions, and then confirmed the instructions in the presence of family members; in these circumstances, White J found that the deceased did not know and approve the contents of the will, and ruled that the will was not valid). See, for example, In the Estate of Tucker (deceased) [1962] SASR 99 (where a trustee company prepared several wills for a client over a period of years, in each case the instructions having been obtained by correspondence due to the client residing in the country; as a result, the trustee company was unaware that the client was suffering from delusions at the time of giving instructions for his final will; this in turn led Mayo J to point out ‘the danger, and indeed the undesirability, of acting on instructions which are not given in person’: at 102); Legal Profession Conduct Commissioner v

10.

11.

12.

13.

14.

15.

16.

Brook [2015] SASCFC 128; BC201508847 (where the respondent solicitor took instructions for the testatrix’s will from the testatrix’s adult daughter without meeting with the testatrix, who was at the time 86 years old and residing in a nursing home, or satisfying himself that the will accorded with her wishes and that she possessed the requisite mental capacity; this failure of proper professional practice triggered litigation, during which the respondent acted in a conflict of interest and duty scenario as well as behaved dishonestly; this prompted the court to order that his name be removed from the roll). See M Barnett et al, ‘Psychological and Ethical Issues in the Relationship Between Lawyers and Mentally Ill Clients’ (2007) 11 UWSLR 63; B Hamilton and T Cockburn, ‘Assessment of Capacity: Disciplinary Issues and Potential Liability’ (March 2009) 29 Proctor 15. Public Trustee v Till [2001] 1 NZLR 508 at [25]–[28] per Randerson J; Hill v Fellowes (a firm) (2011) 118 BMLR 122; [2011] EWHC 61 (QB) at [75]–[77] per Sharp J (where her Ladyship found that the evidence established that, although the client was suffering from dementia at the relevant time, this would not have been apparent to a reasonably competent solicitor, and so there was no ‘special’ duty of care owed by the solicitor to the client to seek medical advice in relation to her mental health: at [82]). Hill v Fellowes (a firm) (2011) 118 BMLR 122; [2011] EWHC 61 (QB) at [77] per Sharp J. In similar vein, another English judge has remarked that ‘[i]t is not necessary in every case that there should be a contemporaneous formal assessment by a qualified medical professional before the court can be satisfied’: Poole v Everall [2016] WTLR 1621; [2016] EWHC 2126 (Ch) at [105] per HHJ David Cooke. Friesen and Holmberg v Friesen Estate (1985) 33 Man R (2d) 98 at 107 per Kroft J. See also Murphy v Lamphier (1914) 31 OLR 287 at 318–19 per Boyd C (aff’d Murphy v Lamphier (1914) 20 DLR 906) (‘In the case of a person greatly enfeebled by old age or with faculties impaired by disease, and particularly in the case of one labouring under both disabilities, the solicitor does not discharge his duty by simply taking down and giving legal expression to the words of the client, without being satisfied by all available means that testable capacity exists and is being freely and intelligently exercised in the disposition of the property. The solicitor is brought in for the very purpose of ascertaining the mind and will of the testator touching his worldly substance and his comprehension of its extent and character and of those who may be considered proper and natural objects of his bounty’). Pates v Craig (SC(NSW), Santow J, 28 August 1995, unreported) BC9505250 at 38–9. See also Ryan v Public Trustee [2000] 1 NZLR 700 at 718–19 per Ellis J; Nicholson v Knaggs [2009] VSC 64; BC200900993 at [387] per Vickery J (who recommended a ‘considered and appropriately structured interview with the testatrix’ and emphasised that ‘in order to establish knowledge and approval of a will by a testator, more is required than merely establishing that the testator executed it in the presence of a witness after it had been read to, or by, him’); Romascu v Manolache [2011] NSWSC 1362; BC201110815 at [166]–[173] per Hallen AsJ. See further M M Litman and G B Robertson, ‘Solicitor’s Liability for Failure to Substantiate Testamentary Capacity’ (1984) 62 Can Bar Rev 457; P Brereton, ‘Acting for the Incapable: A Delicate Balance’ (2012) 35 Aust Bar Rev 244; D Browne, ‘Assessing a Client’s Mental Capacity is in Your Interests’ (September 2016) LSJ 84. This is especially important given that a lawyer’s exposure to the testator may be insufficient to form a clear view of that person’s mental capacity: see, for example, Ranclaud v Cabban [1988] ANZ Conv R 134; BC8802222 (where the donor of a power of attorney, though suffering Alzheimer’s disease, expressed strong but inconsistent views over the passage of time, Young J held that the retainer was not valid due to mental incapacity). This has, in some English cases, been described as the ‘golden rule’: see, for example, Re Simpson

17. 18. 19. 20. 21. 22.

23.

24. 25. 26. 27.

28. 29. 30. 31.

32.

(1977) 121 SJ 224; Scammell v Farmer [2008] WTLR 1261; [2008] EWHC 1100 (Ch) at [117]–[123] per Mr Stephen Smith QC; Re Key (deceased) [2010] 1 WLR 2020; [2010] EWHC 408 (Ch) at [7], [8] per Briggs J. The ‘golden rule’, while good practice (an Australian court has described it as ‘a counsel of prudence’: Veall v Veall (2015) 46 VR 123; [2015] VSCA 60; BC201502640 at [192] per Santamaria JA, with whom Beach and Kyrou JJA concurred), is not a rule of law. It follows that complying with the rule does not provide conclusive proof of testamentary capacity. Nor does noncompliance preclude capacity otherwise being proved: see, for example, Elliott v Simmonds [2016] WTLR 1355; [2016] EWHC 732 (Ch) (where Deputy Judge Edward Murray found that, by reason of his close friendship with the deceased for some 40 years, the solicitor who drafted the deceased’s will was better positioned than most to judge any signs of mental deterioration; that three other solicitors who interacted with the testator in the months after the will was executed had noted no signs of mental deterioration, coupled with the fact that the will was simple and similar to an earlier will, supported the solicitor’s assessment of capacity: at [62]–[68]). Moreover, the circumstances may make it impracticable to follow the ‘golden rule’: see, for example, Wharton v Bancroft [2011] EWHC 3250 (Ch) (where the solicitor had been asked to prepare a will for a dying man). See MacKenzie v MacKenzie (1998) 162 DLR (4th) 674 at 701–2 per Freeman JA (CA(NS)). Scott v Cousins (2001) 37 ETR (2d) 113 at [70] per Cullity J. Hall v Bennett Estate (2003) 227 DLR (4th) 263 at [58] per Charron JA (CA(Ont)). Goddard Elliott (a firm) v Fritsch [2012] VSC 87; BC201201151 at [418], [548]–[550] per Bell J. See 24.28–24.32. See, for example, Ranclaud v Cabban [1988] ANZ Conv R 134 at 137–9; BC8802222 per Young J (involving a retainer to draft a power of attorney successfully challenged on the grounds that the donor lacked capacity to instruct the solicitor). As to costs orders against lawyers generally, see Dal Pont, Law of Costs, Ch 23. Legal Services Commissioner v Ford [2008] LPT 12; Legal Services Commissioner v de Brenni [2011] QCAT 340 (where the tribunal remarked on the need to remind lawyers ‘about the need for care and attention in cases of this kind which, with the growth in the proportion of the population in the age range likely to require legal assistance in these areas, will increase’: at [17]); Legal Services Commissioner v Comino [2011] QCAT 387; Legal Profession Complaints Committee v Wells [2014] WASAT 112; BC201407445. See 24.28–24.32. MacKenzie v MacKenzie (1998) 162 DLR (4th) 674 at 701–2 per Freeman JA (CA(NS)). As to applications for provision, see Chapter 17. See 19.34–19.38. See, for example, Vagg v McPhee [2011] NSWSC 1584; BC201110820 (failure to give advice as to the prospect for severance of a joint tenancy so as to ensure that the testatrix’s interest in property went to her children rather than to the other joint tenant, her estranged husband). See 1.40–1.51. See 1.11, 1.12. Miller v Cooney [2004] NSWCA 380; BC200407207 at [33] per Sheller JA, Hodgson and Santow JJA agreeing. Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 at 214 per Lord Hoffmann; Trust Co of Australia v Perpetual Trustees WA (1997) 42 NSWLR 237 at 248–9; BC9702915 per McLelland CJ in Eq. [2004] 1 NZLR 37. See further D Webb, ‘Contracts of Retainer for Solicitor-Executors’ [2004] NZLJ 77.

33. 34. 35. 36. 37. 38. 39.

40. 41. 42. 43. 44. 45. 46.

47. 48.

49. 50. 51. 52. 53. 54. 55.

56. 57.

Hansen v Young [2004] 1 NZLR 37 at [33], [34]. Hansen v Young [2004] 1 NZLR 37 at [50]. See 10.52–10.56. See G E Dal Pont, Lawyers’ Professional Responsibility, 6th ed, Lawbook Co, Australia, 2017, pp 182– 3. See G E Dal Pont, Lawyers’ Professional Responsibility, 6th ed, Lawbook Co, Australia, 2017, Ch 6. See 24.17–24.20. It is, however, not limited to these scenarios. For instance, a lawyer-executor who includes in the will a clause that purports to exempt him or her from liability for breach of duty as executor — to the extent that the law allows this: see 13.46 — should make full disclosure to the client of the existence of the clause and its consequences, as the clause is (like a charging clause) one that has the prospect of pitting the lawyer’s own interests against those of the client (or the client’s estate or family). Cf Bogg v Raper (1998/99) 1 IETLR 267 at [52] per Millett LJ (‘It cannot excite suspicion that a solicitor, when drafting a will for a client, even in the contemplation that he may himself be appointed an executor and trustee, should include an exemption clause no wider than many similar clauses found in the precedent books’). See 24.21–24.23. See G E Dal Pont, Lawyers’ Professional Responsibility, 6th ed, Lawbook Co, Australia, 2017, Ch 7. Pates v Craig (SC(NSW), Santow J, 28 August 1995, unreported) BC9505250 at 36–7. See G E Dal Pont, Lawyers’ Professional Responsibility, 6th ed, Lawbook Co, Australia, 2017, Ch 8. [2014] VSC 416. O’Loughlin v Arnott [2014] VSC 416 at [35]. Legal Profession (Solicitors) Conduct Rules 2015 (ACT) r 12.4.1; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 12.4.1; Rules of Professional Conduct and Practice (NT) r 9.1; Australian Solicitors’ Conduct Rules (Qld) r 12.4.1; Australian Solicitors’ Conduct Rules (SA) r 12.4.1; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic) r 12.4.1. Cf Legal Profession Conduct Rules 2010 (WA) r 15(5). [2011] VSC 368; BC201105930. The Victorian Law Reform Commission subsequently recommended that a new provision be inserted into the Administration and Probate Act 1958 (Vic) to the effect that a professional executor is unable to rely on a remuneration or commission clause in a will unless the testator gave informed written consent to its inclusion, before the will was executed: VLRC, 2013, recommendation 52. This has since been staged for statutory implementation: Administration and Probate and Other Acts Amendment (Succession and Related Matters) Bill 2016 (Vic) (via proposed new ss 65B and 65C). Szmulewicz v Recht [2011] VSC 368; BC201105930 at [44]. Re Craig (1952) 52 SR (NSW) 265. [1977] 1 NSWLR 210 at 217. Re McClung (deceased) [2006] VSC 209; BC200604264 at [35] per Evans M. Re McClung (deceased) [2006] VSC 209; BC200604264 at [34] per Evans M. Re McClung (deceased) [2006] VSC 209; BC200604264 at [34] per Evans M. Re McClung (deceased) [2006] VSC 209; BC200604264 at [36] per Evans M. See also Legal Services Commissioner (Vic), Summary of the 2010 Succession Law Round Table, p 15 (where it was broadly agreed that it was inadvisable for solicitors to act as executors of their clients’ wills other than as a last resort). Re Will and Estate of Foster (deceased) [2012] VSC 315; BC201205740 at [29] per Daly AsJ. See, for example, Victorian Legal Services Commissioner v Rhoden [2016] VSC 67; BC201601804

58.

59. 60. 61. 62. 63. 64.

65. 66.

67. 68. 69. 70.

71.

(where a solicitor who had intentionally and consistently ‘double dipped’ in this context was struck from the roll; John Dixon J remarked that ‘[t]heft of funds from deceased estates by solicitors is particularly odious for the profession and significantly undermines the confidence of the public in the legal profession and in the law and practice of administration of deceased estates’: at [14]). In Victoria it has been recommended that solicitor-executors be required to disclose to beneficiaries details concerning their charges to the estate for executorial and legal services, and associated information, along the lines of costs disclosure obligations to clients under legal profession legislation: VLRC, 2013, recommendation 54. This recommendation is staged for statutory implementation: Administration and Probate and Other Acts Amendment (Succession and Related Matters) Bill 2016 (Vic) (via a new s 65D). Walker v D’Alessandro [2010] VSC 15; BC201000287 at [30] per T Forrest J (noted R Cocks, ‘A Test of Will’ (July 2010) 84 LIJ 81). See further R Cook, ‘Don’t Ask for More’ (October 2011) 85 LIJ 47. As to the parameters of the court’s jurisdiction as to commission, see 13.49–13.73. See Legal Services Commissioner v Barlow [2014] VCAT 973; Legal Services Commissioner v Maguire [2014] VCAT 974. See 13.66–13.69. As to the rules applicable to interested witnesses, see 4.53–4.60. Powell v Powell [1900] 1 Ch 243 at 246 per Farwell J; Wright v Carter [1903] 1 Ch 27 at 50 per Vaughan Williams LJ, at 57 per Stirling LJ; Westmelton (Vic) Pty Ltd (receiver and manager appointed) v Archer [1982] VR 305 at 312–13 (FC); Verduci v Golotta [2010] NSWSC 506; BC201003358 at [70] per Slattery J. As to the doctrine of undue influence generally, see Dal Pont, Ch 7; Meagher, Gummow and Lehane, Ch 15. Goldsworthy v Brickell [1987] Ch 378 at 404 per Nourse LJ. Legal Profession (Solicitors) Conduct Rules 2015 (ACT) r 12.2; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 12.2; Rules of Professional Conduct and Practice (NT) r 8.1.2; Australian Solicitors’ Conduct Rules (Qld) r 12.2; Australian Solicitors’ Conduct Rules (SA) r 12.2; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic) r 12.2. Brusewitz v Brown [1923] NZLR 1106 at 1109 per Salmond J; Weiss v Barker Gosling (1993) 16 Fam LR 728 at 761 per Fogarty J. Johnson v Buttress (1936) 56 CLR 113 at 134; BC3600016 per Dixon J. See B Hamilton and T Cockburn, ‘Solicitors Taking Substantial Gifts under Wills: Probate Doctrines, Professional Regulation and the Application of Equitable Doctrines’ (2008) 2 J Eq 117. The person giving that advice must possess some expertise regarding the nature of the transaction, be privy to all the material facts (Brusewitz v Brown [1923] NZLR 1106 at 1116 per Salmond J; Contractors Bonding Ltd v Snee [1992] 2 NZLR 157 at 166 per Richardson J) and be requested to give advice specifically in relation to that transaction (Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30 at 35 per Street J). An independent lawyer who is not satisfied that the transaction is a right or proper one for the client to effect in the circumstances must advise against the transaction: Powell v Powell [1900] 1 Ch 243 at 246–7 per Farwell J. Barry v Butlin (1838) 2 Moo 480 at 482; 12 ER 1089 at 1090 per Parke B; Wright v Carter [1903] 1 Ch 27 at 50 per Vaughan Williams LJ, at 57 per Stirling LJ; Wintle v Nye [1959] 1 All ER 552 at 557 per Viscount Simonds; Westmelton (Vic) Pty Ltd (receiver and manager appointed) v Archer [1982] VR 305 at 312–13, 317, 320–1 (FC); Weiss v Barker Gosling (1993) 16 Fam LR 728 at 757, 761 per Fogarty J; Ramcoomarsingh v Administrator General [2002] UKPC 67 at [18] per Lord Slynn. Cf Dore v Billinghurst [2006] QSC 140; BC200604315 (aff’d Dore v Billinghurst [2006] QCA 494;

72. 73. 74. 75.

76. 77.

78.

79.

80. 81.

82. 83. 84. 85. 86. 87. 88.

BC200609632) (where the lawyer successfully rebutted the presumption); Smith v O’Neill [2014] NSWSC 1119; BC201406720 (where a bequest to a solicitor was upheld because the will was drafted by an independent solicitor, who took instructions directly from the deceased and assured himself that the deceased was exercising her free will and understanding in making the gift: at [177]–[202] per Hallen J). Re Coomber [1911] 1 Ch 723 at 726 per Cozens-Hardy MR. Boyce v Bunce [2015] NSWSC 1924; BC201512485 at [39] per Lindsay J. The relevant rules define ‘immediate family’ to mean the spouse (which expression may include a de facto spouse or partner of the same sex), or a child, grandchild, sibling, parent or grandparent of a lawyer. Legal Profession (Solicitors) Conduct Rules 2015 (ACT) r 12.4.2; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 12.4.2; Rules of Professional Conduct and Practice (NT) r 9.2; Australian Solicitors’ Conduct Rules (Qld) r 12.4.2; Australian Solicitors’ Conduct Rules (SA) r 12.4.2; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic) r 12.4.2. Cf Legal Profession Conduct Rules 2010 (WA) r 15(5). The term ‘associate’ is defined broadly in the definition sections of the relevant rules. A ‘substantial benefit’ is ‘a benefit which has a substantial value relative to the financial resources and assets of the person intending to bestow the benefit’: Legal Profession (Solicitors) Conduct Rules 2015 (ACT) Glossary; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) Glossary; Rules of Professional Conduct and Practice (NT) r 9.3; Australian Solicitors’ Conduct Rules (Qld) Glossary; Australian Solicitors’ Conduct Rules (SA) Glossary; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic) Glossary; Legal Profession Conduct Rules 2010 (WA) r 15(1). See, for example, Legal Services Commissioner of New South Wales v Reymond [2014] NSWCATOD 14; BC201401580 (involving a solicitor who prepared a will for a client that appointed the solicitor as both sole executor/trustee and sole beneficiary). Ross v Caunters [1980] Ch 297 at 322 per Megarry VC; Hardware Services Pty Ltd v Primac Association Ltd [1988] 1 Qd R 393 at 397 per Thomas J; White v Jones [1995] 2 AC 207 at 256 per Lord Goff; Fitzwood Pty Ltd v Unique Goal Pty Ltd (in liq) (2001) 188 ALR 566; [2001] FCA 1628; BC200107154 at [170] per Finkelstein J. (1988) 164 CLR 539; BC8802597. Per Deane, Brennan and Gaudron JJ, Mason CJ and Wilson J dissenting. The dissenters, in a joint judgment, expressed the view that the tortious duty of care imposed on a solicitor by virtue of the professional relationship must relate to the contract between the solicitor and client, and were unprepared to infer or impute to the contract between the solicitors and the testatrix a condition requiring them to take positive steps after the death of the testatrix ‘to ensure that effect be given to her testamentary intentions’: Hawkins v Clayton (1988) 164 CLR 539 at 545; BC8802597. As to the existence of liability in tort independent of contract, their Honours saw no basis for finding an assumption of responsibility on the part of the solicitors to take positive steps to ensure that the existence and contents of the will were made known to the executor: at 545–7. Hawkins v Clayton (1988) 164 CLR 539 at 578–9; BC8802597. Hawkins v Clayton (1988) 164 CLR 539 at 580; BC8802597. Hawkins v Clayton (1988) 164 CLR 539 at 559; BC8802597. Hawkins v Clayton (1988) 164 CLR 539 at 552; BC8802597. Hawkins v Clayton (1988) 164 CLR 539 at 555; BC8802597. Hawkins v Clayton (1988) 164 CLR 539 at 596; BC8802597. Hawkins v Clayton (1988) 164 CLR 539 at 598; BC8802597.

89. 90. 91. 92. 93. 94. 95. 96.

97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107.

108. 109. 110.

111.

Hill v Van Erp (1997) 188 CLR 159; BC9700701. See 4.53–4.56. Per Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ, McHugh J dissenting. [1980] Ch 297. See generally M Vranken, ‘Negligent Solicitors and Compensation for Economic Loss: Hill v Van Erp’ (1997) 5 Torts LJ 1. Hill v Van Erp (1997) 188 CLR 159 at 170–1 per Brennan CJ, at 177–8 per Dawson J, at 196–7 per Gaudron J, at 237 per Gummow J; BC9700701. Hill v Van Erp (1997) 188 CLR 159 at 186; BC9700701. Hill v Van Erp (1997) 188 CLR 159 at 170–1; BC9700701. Cf White v Jones [1995] 2 AC 207 (where the House of Lords, in order to circumvent the difficulty that the lawyer is unlikely to have consciously assumed a legal responsibility to the intended beneficiaries for the careful performance of the task, characterised the assumption of responsibility as being for the task itself). Hill v Van Erp (1997) 188 CLR 159 at 170–1; BC9700701. This coincidence of interests also influenced the judgment of Dawson J (at 187). Hill v Van Erp (1997) 188 CLR 159 at 198–9 per Gaudron J, at 231–2 per Gummow J; BC9700701. Hill v Van Erp (1997) 188 CLR 159 at 170–1 per Brennan CJ, at 178 per Dawson J, at 198–9 per Gaudron J; BC9700701. Gartside v Sheffield, Young and Ellis [1983] NZLR 37 at 54 per McMullin J. Ross v Caunters [1980] Ch 297 at 303 per Megarry VC. See 24.32. Gartside v Sheffield, Young and Ellis [1983] NZLR 37 at 43 per Cooke J. Hill v Van Erp (1997) 188 CLR 159 at 195 per Gaudron J, at 234 per Gummow J; BC9700701. White v Jones [1995] 2 AC 207 at 260 per Lord Goff. As to rectification of wills, see 2.62–2.77. Walker v Geo H Medlicott & Son (a firm) [1999] 1 All ER 685 at 697 per Sir Christopher Slade, at 702 per Simon Brown LJ. See further E O’Dell, ‘Restitution, Rectification, and Mitigation: Negligent Solicitors and Wills, Again’ (2002) 65 Mod L Rev 360. The broadening of the availability of testamentary rectification in England following Marley v Rawlings [2015] AC 129; [2014] UKSC 2 (see 2.64) is likely, in that jurisdiction, to foster the appropriateness of pursuing a rectification proceeding ahead of claiming against (allegedly negligent) lawyers: see H Cumber and C Kynaston, ‘Where There’s a Will There’s a Way: Marley v Rawlings’ (2014) 25 KLJ 137 at 144–6. Walker v Geo H Medlicott & Son (a firm) [1999] 1 All ER 685 at 700 per Mummery LJ. [1995] 2 AC 207. See, for example, Summerville v Walsh (CA(NSW), Mason P, Sheller and Beazley JJA, 26 February 1998, unreported) BC9800342 (where a client, who had been admitted to hospital suffering severe burns and in great distress from his injuries, gave instructions for a will to the solicitor, but proved unable to sign before dying; the court held that the solicitor had been negligent in not following the alternate procedure for execution, namely to have signed the will at the direction of the client: see 4.7). See, for example, Fischer v Howe (2013) 85 NSWLR 67; [2013] NSWSC 462; BC201302228 (where Adamson J held that the defendant solicitor had been negligent in failing to prepare an informal will (which could have been effective under s 8 of the Succession Act 2006 (NSW): see 4.31), upon instructions from a 94-year-old woman, in advance of a formal will, in circumstances where no formal will was ultimately executed in view of the woman’s death 12 days later; her Honour’s finding was reversed on appeal (because, inter alia, the court was not satisfied that the deceased had

112.

113. 114. 115. 116.

117. 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135.

committed herself irrevocably to the scheme of benefaction: see 24.39) but without doubting that circumstances may arise where delay in effecting client instructions, and not prompting an informal will, could generate liability in negligence: Howe v Fischer (2014) 12 ASTLR 66; [2014] NSWCA 286). X (an infant) v Wollcombe Young [2001] Lloyd’s Rep PN 274 at 282 per Neuberger J; McCullough v Riffert (2010) 59 ETR (3d) 235 at [61] per Mulligan J (SCJ(Ont)) (noting that ‘[v]isits to a hospital, nursing home or a palliative care centre will give rise to greater urgency [and] [t]he more so when the lawyer has the benefit of medical advice that the client has a terminal illness’). Cf Rosenberg Estate v Black (2001) 110 ACWS 560 (SCJ(Ont)) (where, although the solicitor knew of a serious health problem 5 days before the testatrix’s death, the evidence revealed that the solicitor had no reason to believe there was a substantial risk that the testatrix would die within days; no finding of negligence was therefore made); Howe v Fischer (2014) 12 ASTLR 66; [2014] NSWCA 286 (no negligence in failing to immediately effect client instructions where the evidence did not suggest, as a matter of reasonable foresight, that the client’s medical condition would trigger impending death or loss of mental capacity: at [51], [59] per Barrett JA, with whom Beazley P and Macfarlan JA concurred). (2012) 9 ASTLR 575; [2012] NSWSC 1420; BC201209622. Maestrale v Aspite (2012) 9 ASTLR 575; [2012] NSWSC 1420; BC201209622 at [106]. Maestrale v Aspite (2012) 9 ASTLR 575; [2012] NSWSC 1420; BC201209622 at [107]. See, for example, Vagg v McPhee [2011] NSWSC 1584; BC201110820 (where, although the solicitor was found to have been negligent in not raising the prospect of the testatrix severing the joint tenancy in property held with her estranged husband, Schmidt J dismissed the claim by her children because ‘there was no instruction given that there should be any testamentary disposition of the … property in favour of the children’: at [105]) (aff’d Vagg v McPhee (2013) 85 NSWLR 154; [2013] NSWCA 29; BC201300837). Hill v Van Erp (1997) 188 CLR 159 at 235; BC9700701. [2000] PNLR 140. Worby v Rosser [2000] PNLR 140 at [25]. See also at [29] per Peter Gibson LJ. Worby v Rosser [2000] PNLR 140 at [25]. (2004) 36 Alta LR (4th) 203. Graham v Bonnycastle (2004) 36 Alta LR (4th) 203 at [29]. Contra at [59] per Berger JA. See 24.5–24.7. Graham v Bonnycastle (2004) 36 Alta LR (4th) 203 at [30]. Graham v Bonnycastle (2004) 36 Alta LR (4th) 203 at [27]. See also at [60], [61] per Berger JA. Graham v Bonnycastle (2004) 36 Alta LR (4th) 203 at [27]. [1999] 2 NZLR 753. Knox v Till [1999] 2 NZLR 753 at 755. See G E Dal Pont, Lawyers’ Professional Responsibility, 6th ed, Lawbook Co, Australia, 2017, pp 178– 9. [2004] NSWCA 380; BC200407207. Miller v Cooney [2004] NSWCA 380; BC200407207 at [24]. Miller v Cooney [2004] NSWCA 380; BC200407207 at [36]. [2000] QCA 93; BC200001212. See R Mortensen, ‘Solicitors’ Will-Making Duties’ (2002) 26 MULR 60. Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 93; BC200001212 at [33] per Pincus JA, at [38] per Thomas JA. Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 93; BC200001212 at

[40]. 136. Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 93; BC200001212 at [41]. 137. See, for example, Carr-Glynn v Frearsons (a firm) [1999] Ch 326; Smeaton v Pattison [2003] QCA 341; BC200304357; Miller v Cooney [2004] NSWCA 380; BC200407207 (discussed at 24.38); Vagg v McPhee (2013) 85 NSWLR 154; [2013] NSWCA 29; BC201300837. 138. See 1.13. 139. As to notional estate orders, see 20.58–20.78. 140. (2016) 257 CLR 440; [2016] HCA 18; BC201603374. 141. Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18; BC201603374 at [31]–[33] (paragraph break omitted). 142. Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18; BC201603374 at [61]. 143. Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18; BC201603374 at [47] per French CJ, Kiefel and Keane JJ, at [90], [91] per Gordon J. 144. Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18; BC201603374 at [35] per French CJ, Kiefel and Keane JJ. See also at [96] per Gordon J.

Index All references are to paragraph numbers A Ademption at common law acts of third party, by disposal on behalf of testator who lacks capacity …. 7.35–7.37 statutory initiatives …. 7.38–7.41 disposal via fraudulent or tortious acts …. 7.34 contracts, application …. 7.32 doctrine confined to specific gifts …. 7.25 doctrine not grounded in testator’s intention …. 7.26 impact of changes in nature of specific gift …. 7.27–7.28 options, application …. 7.33 specific gifts, failure …. 6.12, 7.23–7.24 wills legislation, interaction …. 7.29–7.31 Ademption in equity nature of …. 7.81 presumption classes of case …. 7.82 legacy and gift/advance to be ejusdem generis …. 7.83 subsequent advance by parent (or person in loco parentis) date at which valuation of property adeemed …. 7.87 operation of presumption …. 7.83, 7.84 rebuttal of presumption …. 7.85–7.86 subsequent advance for specific purpose …. 7.88 Administration …. P.3 legislation …. P.14, P.17 limited grants of see Forms of grant

Administration action …. 12.46 Administration bonds and guarantees see Forms of grant Administration without grant of representation election by Public Trustee or trustee company to administer small estates without grant …. 11.115–11.118 payment of certain money in deceased estates without grant …. 11.119–11.121 real property — Queensland …. 11.122 small estate administered by Public Trustee without grant Australian Capital Territory and Tasmania …. 11.113 New South Wales, Northern Territory and Queensland …. 11.114 Administrator …. P.2 appointee, numbers …. 10.40 appointment by court …. 10.21–10.22 eligibility for appointment …. 10.23 right to administration ‘follows interest’ …. 10.23–10.26 grant of administration to Public Trustee (or equivalent) …. 10.33 Australian Capital Territory …. 10.34 New South Wales …. 10.35 Northern Territory, Queensland and Tasmania …. 10.36 South Australia …. 10.37 Victoria …. 10.38 Western Australia …. 10.39 order of eligible administrators …. 10.27 Queensland …. 10.29 South Australia …. 10.30 Tasmania …. 10.31 the territories and New South Wales …. 10.28 Western Australia …. 10.32 Alcohol abuse testamentary capacity …. 2.14 Allocation and distribution of estate …. 14.1 debtor appointed as executor, effect common law, position …. 14.19 equity, position …. 14.20 Strong v Bird, rule in …. 14.21–14.23

debtor being legatee, effect Cherry v Boultbee, rule in …. 14.24–14.26 doctrine of marshalling, application …. 14.18 estate, distribution balancing beneficiaries’ interests where income accrues during administration …. 14.42 interim distributions prior to completion of administration …. 14.47 circumstances where duty to make …. 14.48–14.49 circumstances where interim (maintenance) distribution allowed …. 14.50 no preference between beneficiaries of same class …. 14.41 notice of debts, with …. 14.45–14.46 overpayments to beneficiaries …. 14.43–14.44 insolvent estate impact of the Bankruptcy Act 1966 (Cth) …. 14.12 scheme in each jurisdiction except South Australia …. 14.10 South Australian scheme …. 14.11 no distribution required before expiry of ‘executor’s year’ common law, at …. 14.27 concept of …. 14.27–14.30 South Australia — administrator to pay over money and deliver property to Public Trustee …. 14.29–14.30 statutory reflections of ‘executor’s year’ concept …. 14.28 payment of debts, priority …. 14.2 personal representative’s ‘right of retainer’ and ‘right to prefer creditors’ common law …. 14.13 impact of statute …. 14.14–14.17 protection for personal representatives via notices backdrop and rationale …. 14.51–14.52 Queensland and Western Australia …. 14.58–14.59 remaining jurisdictions, position in …. 14.56–14.57 preservation of claims under trustee legislation …. 14.62–14.63 South Australia and Tasmania …. 14.60 statutory protection for personal representatives where will rectified …. 14.64

the Territories and New South Wales, position in …. 14.53–14.55 Victoria …. 14.61 solvent estate exceptions where payments of debts on property mortgaged or charged …. 14.8–14.9 Queensland …. 14.5 South Australia and Western Australia — the common law ‘old order’ …. 14.7 The Territories, New South Wales, Tasmania and (formerly) Victoria …. 14.3–14.4 Victoria …. 14.6 translation of ‘executor’s year’ to accruing of interest on legacies …. 14.31 ‘default rule’ — correlation with expiry of the executor’s year …. 14.32–14.33 exception to ‘default rule’ where pecuniary legacy to child without maintenance …. 14.37 interest payable, rate general law, under …. 14.38–14.39 statute, under …. 14.40 ouster of ‘default rule’ …. 14.34–14.36 Amendment of wills alterations …. 5.42 duly executed …. 5.46–5.47 presumption as to time of …. 5.43–5.45 obliterations …. 5.42 dependent relative revocation, impact …. 5.50 judicial dispensing powers, impact …. 5.50 part of the will not ‘apparent’ …. 5.48–5.49 overview …. 5.42 Animus testandi meaning …. 1.3 requirement …. 2.1, 2.21 Application for family provision application by single person can be regarded as application on behalf of others …. 17.16–17.18 applicant’s death, heard after…. 17.13–17.15

classes of applicants see Classes of family provision applicants duties of personal representatives distribution when notice of a family provision application …. 17.48–17.49 primary duty to uphold the will …. 17.45–17.47 protection of personal representatives arising out of distributions …. 17.50–17.56 jurisdictional threshold ‘moral duty’, ‘moral responsibility’ or ‘moral claim’, inquiry into…. 17.62–17.66 perspective from which inquiry is made accepted community standards …. 17.79 wise and just testator …. 17.77–17.78 qualitative criteria …. 17.76 quantitative criteria — ‘adequate’ and ‘proper’ …. 17.67–17.69 link between adequacy and need …. 17.70–17.75 terminology …. 17.59–17.61 timing of inquiry …. 17.80–17.82 legally incapable, where deceased is …. 17.12 onus of proof applicant for provision bears the main onus …. 17.4–17.5 applicant’s duty to make full disclosure of financial position …. 17.6–17.8 procedural matters …. 17.1 court to which application may be made …. 17.2 terms of will or intestacy rules to be considered prior to making application …. 17.3 representation has been granted, whether or not …. 17.11 service of application for order …. 17.10 standard of proof …. 17.9 summary dismissal …. 17.19–17.21 time for making discretion to extend time …. 17.23–17.24 limitation periods …. 17.22 relevant factors to extend time …. 17.25 applicant remains without redress (including against defaulting lawyer) …. 17.34–17.35

distribution of the estate …. 17.43–17.44 explanation for delay …. 17.28–17.33 length of delay …. 17.26–17.27 nature of the applicant …. 17.40–17.41 negotiations remain on foot …. 17.36 presence or absence of prejudice …. 17.39 strength of the applicant’s case …. 17.37–17.38 unconscionable conduct …. 17.42 two-stage substantive inquiry discretionary stage …. 17.58 jurisdictional stage …. 17.57 Attestation clause presumption of due execution and …. 4.19–4.20 Australian Capital Territory administration bonds and guarantees …. 11.61 duties of personal representatives …. 12.34 family provision domestic relationship, meaning …. 16.11 eligible persons …. 16.8 partner, meaning …. 16.9–16.10 statutory criteria/factors …. 19.3 stepchildren, grandchildren and parents of the deceased, restrictions …. 16.12 forfeiture of testamentary gift for killing …. 7.68 grant of administration to Public Trustee (or equivalent) …. 10.34 interested witness rule, abolition of …. 4.57 intestacy distribution of estate …. 9.29 intestate is not survived by a partner …. 9.31 intestate is survived by a partner …. 9.30 intestate survived by both spouse/civil partner and eligible partner …. 9.32 privileged wills …. 4.21 ‘active’ or ‘actual service’, meaning …. 4.25–4.27 formal requirements, exception …. 4.2 mental element …. 4.28–4.29

statutory provisions …. 4.23 revocation of wills termination of marriage, by …. 5.39–5.40 wills in contemplation of marriage, and …. 5.25, 5.26–5.30 small estate administered by Public Trustee without grant …. 11.113 statutory rectification of wills …. 2.67–2.71 applications, time limits and extensions of time …. 2.76, 2.77 wills for persons lacking testamentary capacity …. 3.1, 3.16, 3.21 B Bank accounts joint …. 1.14 Beneficiary acquiescence or release of personal representative …. 12.56 balancing interests where income accrues during administration …. 14.42 costs of deceased estates appeals …. 23.41 claims upon intestacy …. 23.39 inquiry into beneficiaries …. 23.38 disclaimer of gift …. 7.42–7.46 false allegations of relationship with testator …. 2.29–2.50 family provision claims, competition with other claimants/beneficiaries …. 18.5–18.6 gifts to discharge obligations, exception to lapse doctrine …. 7.16–7.17 interested beneficiary rule …. 4.54, 4.55, 4.59 lawyers responsibility to beneficiaries of former wills …. 24.35–24.37 disappointed beneficiaries …. 24.28–24.33 nature of interest pre-death of testator …. 1.2, 7.45 no preference within class …. 14.41 overpayments to …. 14.43–14.44 overview …. 1.1 preparation of will by …. 2.30–2.31 Bequest meaning …. P.11, 7.2C

C Canada judicial dispensing power …. 4.31 Capacity see Testamentary capacity Caveat, lodgement by person who proposes to challenge grant …. 11.24–11.27 Charitable gift delegation of power to make …. 2.79 lapse doctrine, exception to …. 7.18 Child meaning for family provision New South Wales …. 16.19 Queensland …. 16.39 South Australia …. 16.43 Tasmania …. 16.46 Western Australia …. 16.55 Children allocation and distribution of estate exception to ‘default rule’ where pecuniary legacy to child without maintenance …. 14.37 ex-nuptial intestacy and …. 9.23 secret trust …. 4.70 family provision eligibility to apply …. 16.12 not designed to make equal provision …. 15.15–15.17 family provision applicant classes grandchildren …. 18.36–18.44 offspring …. 18.22–18.35 other family type relationships …. 18.50–18.52 stepchildren …. 18.45–18.49 gifts to see Gifts to children parental duty, scope …. 18.31 cases involving bare paternity …. 18.34–18.35 housing …. 18.32 items on a wish list …. 18.33

wills for …. 3.22–3.24 Chose in action parting with dominion …. 1.25 Classes of family provision applicants existing (de jure or de facto) spouses broad general rule …. 18.2 application …. 18.3–18.4 competition with other claimants/beneficiaries …. 18.5–18.6 dealing with competing claims via terms of the order …. 18.7 estate can satisfy claims …. 18.11–18.12 form of order (including ‘crisp order’) …. 18.9–18.10 later award …. 18.8 former or estranged spouses or domestic partners circumstances where provision ordered …. 18.14 circumstances relevant to order …. 18.17–18.21 clean break notion …. 18.15–18.16 eligibility to apply …. 18.13 grandchildren eligibility to apply …. 18.36 judicial attitude to applications …. 18.37 New South Wales and Queensland …. 18.39 territories and South Australia …. 18.38 Victoria …. 18.39, 18.41 Western Australia …. 18.40 pattern of generosity insufficient …. 18.43 relevance of provision for parent for benefit of grandchildren …. 18.44 where the child’s parent is deceased …. 18.42 offspring adult child vs infant child …. 18.22 assisting lame ducks …. 18.29–18.30 general rule regarding adult sons/children …. 18.23 move away from requiring a special claim or special need …. 18.26–18.28 special claim or special need as a prerequisite …. 18.24–18.25 parental duty, scope …. 18.31 cases involving bare paternity …. 18.34–18.35

housing …. 18.32 items on a wish list …. 18.33 other family type relationships …. 18.50–18.52 overview …. 18.1 stepchildren eligibility to apply …. 18.45 quantum of provision …. 18.48–18.49 relevant considerations …. 18.46–18.47 Class gifts lapse …. 7.21 meaning …. 7.21 Clerical error statutory rectification …. 2.64 Coded will deciphering …. 4.5 Codicil animus testandi, presumption of …. 1.3 dependent relative revocation …. 5.19 effect …. 6.2 intermediate …. 6.11 republication …. 6.1, 6.5, 6.6, 6.7, 6.9 revival …. 6.13, 6.15, 6.16, 6.19, 6.21 revocation by revocation of will …. 5.1, 5.3, 5.6 Conditional will overview …. 2.23–2.26 Conflicts of law in succession administration of estates …. 22.10–22.11 jurisdiction to grant representation …. 22.4 personal representative, appointment …. 22.5 doctrine of scission, impact …. 22.6–22.7 resealing of grant made elsewhere …. 22.8 property in the personal representative …. 22.9 context …. 22.1–22.3 doctrine of scission …. 22.2–22.3 impact of …. 22.6–22.7 election …. 22.34

family provision …. 22.35–22.38 intestate succession …. 22.13 wills and intestacy …. 22.12 appointment, powers capacity …. 22.29 construction …. 22.32 essential validity …. 22.31 formal validity …. 22.30 general principles …. 22.28 revocation …. 22.33 testate succession capacity …. 22.14 construction …. 22.22 essential validity …. 22.21 formal validity …. 22.15–22.19 international wills legislation, impact …. 22.20 revocation …. 22.23–22.27 Construction of will ambiguous words do not control a clear gift …. 8.31–8.32 changing and transposing words …. 8.19–8.20 class gifts …. 8.60 class closing rules …. 8.61–8.62 immediate gift with qualification …. 8.65 immediate gift without qualification …. 8.63 mediate gift with qualification …. 8.66 mediate gift without qualification …. 8.64 custom …. 8.15 ejusdem generis …. 8.29–8.30 extrinsic evidence, admissibility of …. 8.36 common law, at …. 8.37–8.38 armchair principle and limitations …. 8.11, 8.39–8.41 equivocations …. 8.42–8.43 inability to ascertain meaning …. 8.46 statutory modification …. 8.44–8.45 gifts of property …. see Gifts of property gifts to children …. see Gifts to children

gifts to persons …. 8.47 donee to be ascertained at date of will …. 8.48–8.49 persons in specified relationship to the testator …. 8.50 children …. see Gifts to children gifts to spouses …. 8.57–8.58 gifts to transgender persons …. 8.59 ignoring words …. 8.18 inconsistency and conflict rule in Lassence v Tierney …. 8.35 the ‘rule of despair’ …. 8.33–8.34 jurisdiction to omit scandalous, offensive or defamatory words …. 8.22 omissions …. 8.16–8.17 principles informed by attempt to uphold will falsa demonstratio non nocet, cum de corpore constat …. 8.26–8.28 golden rule — avoidance of intestacy …. 8.24 ut res magis valeat quam pereat …. 8.25 probate, distinction …. 8.1–8.2 punctuation …. 8.21 rules …. 8.3 secondary meanings dictionary principle …. 8.8–8.9 ordinary meaning does not make sense …. 8.10–8.11 statutory rectification, relationship to …. 2.75 subsidiary principles of construction …. 8.23 targeting the expressed intention of the testator …. 8.4–8.5 technical words and phrases …. 8.14 usual or ordinary meaning rule …. 8.6–8.7 words with more than one usual meaning …. 8.12–8.13 Contracts common law ademption, application …. 7.32 family provision claims and …. 1.39 testamentary promises ‘all property’ or residue …. 1.34–1.35 enforceability …. 1.37 formalities …. 1.37 legacy …. 1.32

New Zealand, statutory regulation in …. 1.38 revocation or alteration of will …. 1.36 specific property …. 1.33 wills, relating to …. 1.29, 1.31 types …. 1.30 Corpse property in …. P.8, 12.5 sperm/egg samples …. P.8 Costs — deceased estates appeals …. 23.40 beneficiaries as appellants …. 23.41 personal representatives as appellants …. 23.42–23.43 personal representatives as respondents …. 23.44 capping and fixing costs costs capping in advance of hearings …. 23.35–23.36 costs fixing after hearing …. 23.37 costs in proceedings bona fide belief that good ground exists for impeaching the will incapacity, evidence …. 23.10–23.12 undue influence, evidence …. 23.13–23.14 executor in probate proceedings …. 23.15–23.18 general rules …. 23.5 interveners …. 23.19 litigation caused by the testator …. 23.6 intentional conduct of testator …. 23.7 poor drafting …. 23.9 state of testamentary papers …. 23.8 costs orders in family provision matters discretion …. 23.23–23.25 judicial concern as to costs …. 23.22 costs orders in statutory wills applications …. 23.20–23.21 determining beneficiaries claims upon intestacy …. 23.39 costs of inquiry into beneficiaries …. 23.38 general costs principles in litigation …. 23.1

modifications of cost principles in litigation over deceased estates costs ordered from the fund …. 23.2 costs quantified on a more generous basis …. 23.4 costs where proceeding discontinued …. 23.3 multiple applicants with similar interests …. 23.31 settlement offers, impact …. 23.32–23.34 successful applicant/unsuccessful defendant …. 23.26–23.28 unsuccessful applicant …. 23.29–23.30 Crown bona vacantia, estate vesting in …. 3.19, 7.46 D Death, proof of …. 11.6–11.9 Death benefits superannuation …. P.5 Delegation of will-making power general law rule against testamentary delegation …. 2.78–2.81 Australian law …. 2.81 charitable purposes, exception …. 2.79 powers of appointment and …. 2.80 statutory ouster …. 2.82 Demonstrative legacies …. 7.7–7.8 Dependent relative revocation execution of new will or codicil …. 5.19 mistake …. 5.21–5.22 nature of …. 5.16 new will already made but not properly executed …. 5.20 revival …. 5.17–5.18 Devastavit …. 12.44 Devise(s) meaning …. P.11 nature of …. 7.2 residuary …. 7.10–7.12 specific …. 7.4 sub-classifications …. 7.3

Devolution of estate devolution in the event of simultaneous deaths New South Wales, Queensland, Tasmania and Victoria, position in …. 11.85–11.87 presumption of survivorship …. 11.84 the Territories and Western Australia, position in. …. 11.88 impact of grant of representation how title is taken …. 11.83 vesting of property ‘relates back’ to death …. 11.81–11.82 real and personal property, distinction …. 11.68–11.70 vesting of estate prior to grant of representation Public Trustee (or equivalent), role …. 11.71–11.72 scope …. 11.73–11.76 standing of personal representatives preceding grant …. 11.78–11.80 statutory expansion of Public Trustee role in Northern Territory, Queensland and Tasmania …. 11.77 Digital assets devolution of …. P.9 Disability illiterate, enfeebled or blind testator …. 2.34 testamentary capacity see Testamentary capacity Disappointed beneficiary, lawyer’s duty to see Lawyers’ responsibility and liability Disclaimer of testamentary gift beneficiary may choose to disclaim gift …. 7.42 disclaimer does not amount to disposition …. 7.43 expectancy, and …. 7.45 intestacy, and …. 7.46 time for making …. 7.43 two or more gifts …. 7.44 Disqualification of witnesses historical basis …. 4.53–4.56 interested witness rule …. 4.3, 4.53, 4.57, 4.59 Divorce revocation of will …. 1.36 Document definition …. 4.36

Donatio mortis causa aspects of proof …. 1.28 conditional on death …. 1.21–1.22 contemplation of death …. 1.16–1.20 general principles …. 1.15 parting with dominion …. 1.23 chattels …. 1.24 choses in action …. 1.25 delivery of share certificates …. 1.26 property passing under …. 1.15 unregistered land by delivery of title deeds …. 1.27 Drug abuse testamentary capacity …. 2.14 Duties of personal representatives act personally …. 12.26 qualifications …. 12.27–12.29 breach of duties, remedies for …. 12.43 account on the basis of wilful default …. 12.47–12.48 administration actions …. 12.46 application for court order under statute — Queensland and South Australia …. 12.51 devastavit …. 12.44 equitable remedies for fiduciary breach …. 12.45 failure to properly administer estate …. 12.49 personal representative’s liability for waste or conversion by executor …. 12.52 summary application for legacy …. 12.50 contractual obligations, discharge …. 12.15–12.18 core duties …. 12.1 defences to breach of duty beneficiaries’ consent, acquiescence or release …. 12.56 court’s jurisdiction to relieve against breach …. 12.58 elapsing of time — limitations legislation …. 12.59 exoneration clause …. 12.57 defending claims …. 12.14 disposal of deceased’s remains …. 12.4

executor nominated …. 12.5–12.8 no executor nominated …. 12.9–12.10 duty to account …. 12.30–12.32 fiduciary duties …. 12.21–12.23 liability for default of other personal representatives …. 12.53–12.55 preservation of estate …. 12.24–12.25 pursuant to statute …. 12.33 Australian Capital Territory …. 12.34 New South Wales …. 12.35–12.36 Northern Territory …. 12.37 South Australia …. 12.38 Tasmania …. 12.39 Victoria …. 12.40 Western Australia …. 12.41 standard of care expected lay …. 12.2 professional …. 12.3 substantiating the estate identifying and getting in estate …. 12.11–12.13 survival of personal actions for and against the deceased …. 12.19–12.20 E Election in equity dual gifts gifts to which doctrine applies …. 7.90 ouster of doctrine where intention inconsistent …. 7.91–7.92 mutual obligations …. 7.93 nature of …. 7.89 Entitlements of personal representatives …. 13.32–13.33 indemnity …. 13.40–13.42 remuneration …. 13.43–13.48 award to one of several personal representatives …. 13.70 claim by lawyer-executors …. 13.72–13.73 claim where lawyers engaged to perform professional services …. 13.71 denial where neglect to pass accounts …. 13.65 increase that set by will …. 13.55–13.60

legacy in lieu …. 13.66–13.69 parameters of court’s jurisdiction to award …. 13.49–13.76 prospective award …. 13.54 public trustee …. 13.72–13.73 reduce remuneration set by will …. 13.61 due to breach …. 13.62–13.64 relevant factors …. 13.50–13.53 trustee company …. 13.74–13.78 seeking curial advice or directions …. 13.34–13.39 Estate …. P.4 digital assets …. P.9 distribution …. P.19 incorporeal rights …. P.8 joint tenant, interest …. P.7 right of survivorship …. P.7 life insurance policy, proceeds …. P.6 nemo dat quod non habet …. P.4 personal and real estate, distinction …. P.10 superannuation funds …. P.5 Executor …. P.2 appointee(s), number of …. 10.14 appointment …. 1.1, 10.1 company as executor (or administrator) …. 10.6–10.7 delegation to nominate appointee …. 10.2 executor according to the tenor of the will …. 10.8–10.9 limited appointment …. 10.4–10.5 person holding particular office or title …. 10.3 revocation of will, effect of …. 5.34 executor de son tort concept of …. 10.15–10.16 intermeddling …. 10.17 liability from …. 10.19–10.20 qualifications for appointment appointment of executor with a (conflict of) interest …. 10.11 capacity to act as executor …. 10.10 executor outside of jurisdiction …. 10.12–10.13

representation, by …. 10.83–10.85 role …. 1.1 Executor’s year …. 14.26–14.29 F Family provision application for provision see Application for family provision classes of applicants see Classes of family provision applicants eligibility to apply see Family provision — eligibility to apply history eligible applicants, expansion …. 15.7 intestacies, expansion …. 15.8 origin, 15.5–15.6 scope of legislation, expansion …. 15.7–15.8 jurisdiction, parameters of …. 15.13 not as a reward for service per se …. 15.18–15.21 not designed to effect a ‘fair’ disposition of the estate …. 15.14 not designed to make equal provision for children (or other persons) …. 15.15–15.17 not to punish or redress poor previous (parental) behaviour or the righting of wrongs …. 15.22–15.24 legislation …. P.15 nature of jurisdiction …. 15.9–15.24 judicial discretion balanced against freedom of testation, grounded in …. 15.10–15.11 impact of object on statutory construction …. 15.12 moral obligations, directed to …. 15.9 orders see Family provision orders overview …. 15.1–15.4 testamentary contracts and claims …. 1.39 Family provision — eligibility to apply Australian Capital Territory domestic relationship, meaning …. 16.11 eligible persons …. 16.8 partner, meaning …. 16.9–16.10 restriction regarding stepchildren, grandchildren and parents of the

deceased …. 16.12 declaration of parentage …. 16.5 establishing the existence of a de facto (or equivalent) relationship …. 16.6 expansion of eligibility …. 16.1–16.2 nature of applicant’s interest …. 16.7 New South Wales child, meaning …. 16.19 close personal relationship, meaning …. 16.20 de facto relationship, meaning …. 16.15–16.18 dependence, meaning …. 16.22–16.29 examples …. 16.30–16.36 eligible persons …. 16.14 household, meaning …. 16.21 no residency or age/capacity requirement for eligibility …. 16.4 Northern Territory eligible persons …. 16.13 Queensland child, meaning …. 16.39 dependant, meaning …. 16.40 eligible persons …. 16.37 spouse, meaning …. 16.38 South Australia child, meaning …. 16.43 domestic partner, meaning …. 16.42 eligible persons …. 16.41 Tasmania child, meaning …. 16.46 eligible persons …. 16.44 spouse, meaning …. 16.45 Victoria – position before 1 January 2015 query breadth of extension …. 16.51 remaining de facto need for family-like connection …. 16.49–16.50 shift away from list of eligible applicants …. 16.47–16.48 Victoria – position from 1 January 2015 …. 16.52 Western Australia child, meaning …. 16.55

de facto partner, meaning …. 16.54 eligible persons …. 16.53 Family provision — relevant considerations in making order character and conduct of applicant applicant who engages in (illegal) drug use …. 19.26–19.27 criminal and other illegal behaviour by an applicant …. 19.24–19.25 estrangement …. 19.15–19.21 misconduct of the applicant vis-à-vis the deceased …. 19.22–19.23 nature of inquiry …. 19.10 illustrations in context …. 19.11–19.12 need for applicant’s character and conduct to have an effect on deceased’s moral duty …. 19.13–19.14 statutory recognition …. 19.9 conduct of the deceased …. 19.28–19.31 arguments relating to testamentary disposition …. 19.40 other agreements relating to, or restricting, testamentary disposition …. 19.43–19.46 pre-nuptial agreements …. 19.41–19.42 promises by the deceased …. 19.32–19.33 testators reasons, relevance …. 19.34–19.38 timing of testator’s will or changes thereto …. 19.39 impact on availability of pension or other social security payments …. 19.47–19.50 size of deceased estate …. 19.6–19.8 statutory approaches between jurisdictions …. 19.1–19.2 statutory lists of criteria/factors Australian Capital Territory …. 19.3 New South Wales …. 19.4 Victoria …. 19.5 Family provision orders …. 20.1–20.2 appeal against costs …. 20.57 standard of review …. 20.54–20.56 effect codicil or as modifications of intestacy, as …. 20.10–20.12 order allocates burden of provision proportionately …. 20.13

stamp duty, exemption from …. 20.14 form …. 20.15–20.16 interim family provision orders …. 20.17 order for exoneration of part of estate …. 20.19 order that amount be set aside as a class fund …. 20.18 order where concern that applicant cannot manage provision …. 20.20–20.25 order where concern that provision may benefit third parties …. 20.26–20.27 provision used to pay debts …. 20.30 where provision could benefit applicant’s creditors …. 20.28–20.29 notional estate orders — New South Wales …. 20.58–20.59 determination of property subject to …. 20.74–20.75 making of …. 20.64 estate effected by relevant property transactions …. 20.66 estate effected by subsequent relevant property transaction …. 20.67 matters required before order can be made …. 20.70 matters to be considered by court before making order …. 20.71–20.73 property of deceased transferee’s estate held by legal representative or distributed …. 20.68–20.69 where property of estate distributed …. 20.65 ‘relevant property transactions’ …. 20.60–20.63 restrictions on out-of-time or additional applications …. 20.76–20.78 order by consent court approval, requirement …. 20.32–20.34 New South Wales provisions, mediation and consent orders …. 20.37 release of rights….20.35–20.36 orders after distribution …. 20.38 New South Wales …. 20.40 The territories and South Australia …. 20.39 Western Australia …. 20.41–20.43 property available to satisfy property that is part of the estate of the deceased …. 20.3–20.5 when is the estate ‘distributed’ …. 20.6–20.9 quantifying amount of provision …. 20.44–20.47

variation, suspension and discharge …. 20.48–20.49 jurisdictions other than New South Wales and Queensland …. 20.50 Western Australia …. 20.51 New South Wales …. 20.52 Queensland …. 20.53 Foreign will translation …. 4.5 Forfeiture of testamentary gift for killing (‘forfeiture rule’) domestic violence, and …. 7.52, 7.54 effect — destination of property interest …. 7.56 intestacies …. 7.64–7.65 joint tenancies …. 7.66–7.67 wills …. 7.57–7.63 matters going to proof …. 7.50 mental illness, and …. 7.49 moral culpability — murder versus manslaughter …. 7.51–7.55 overview …. 7.47 parameters of …. 7.48–7.49 statutory intervention Australian Capital Territory …. 7.68 New South Wales …. 7.68–7.70 Forgery see also Fraud overview …. 2.35, 2.52 Formal elements — will dating …. 4.5 judicial dispensing power see Judicial dispensing power language, foreign …. 4.5 nature and scope …. 4.1–4.3 presence of two witnesses …. 1.4, 4.12–4.14 attestation and subscription …. 4.15–4.16 attestation clauses and the presumption of due execution …. 4.19–4.20 requirement …. 4.17–4.18 privileged will see Privileged wills rationale for requirements …. 4.4 signature see Signature writing …. 1.4, 4.5

Forms of grant …. 11.28 administration intestacy, event …. 11.37 outside of intestacy — administration cum testamento annexo …. 11.38–11.41 administration bonds and guarantees Australian Capital Territory …. 11.61 nature and rationale …. 11.60 New South Wales …. 11.62 Northern Territory …. 11.63 South Australia (formerly) …. 11.64 Tasmania (formerly) …. 11.65 Victoria …. 11.66 Western Australia …. 11.67 limited grants of administration …. 11.42 administration ad colligenda bona …. 11.56–11.59 administration ad litem …. 11.53–11.55 administration de bonis non …. 11.43 administration durante dementia …. 11.46–11.47 administration durante minore aetate …. 11.44–11.45 administration in absentia (or durante absentia) …. 11.48 administration pendente lite …. 11.49–11.52 probate …. 11.29 applications …. 11.33–11.34 grant of double probate …. 11.36 probate largely distinct form construction …. 11.35 proof in ‘common form’ …. 11.30 proof in ‘solemn form’ …. 11.31–11.32 Fraud balance of probability, onus …. 2.48 disposal of property by third party, common law ademption and …. 7.34 false allegations character and conduct …. 2.51 relationships …. 2.49–2.50 forgery …. 2.35, 2.52

forms …. 2.53 proof …. 2.48 severance of will …. 2.54 undue influence, distinguished …. 2.48 Freedom of testation incapacity and …. 2.2, 2.9, 2.17, 2.19 G General devises / legacies …. 7.5–7.6 Gifts by will devises and bequests/legacies …. 7.2 demonstrative legacies …. 7.7–7.8 general …. 7.5–7.6 pecuniary legacies …. 7.9 residuary devises and legacies …. 7.10–7.12 specific …. 7.4 sub-classifications of devises and bequests …. 7.3 overview …. 7.1 particular residue …. 7.11 lapse of …. 7.12 Gifts of property specific statutory rules …. 8.71 devise of estate tail …. 8.74 devise without words of limitation …. 8.73 dispositions include both real estate and personal estate …. 8.75 gifts of land include leasehold …. 8.72 powers of appointment …. 8.76–8.77 will speaks from death as to property …. 8.67–8.70 Gifts to children adopted children …. 8.54 artificial insemination …. 8.56 children en ventre sa mère …. 8.55 illegitimate children …. 8.52–8.53 reference in will …. 8.51 Grant of administration to Public Trustee (or equivalent) …. 10.33 Australian Capital Territory …. 10.34

New South Wales …. 10.35 Northern Territory, Queensland and Tasmania …. 10.36 South Australia …. 10.37 Victoria …. 10.38 Western Australia …. 10.39 Grant of representation administration without grant of representation see Administration without grant of representation circumstances where administration can be effected without grant of representation …. 11.5 court consent, requirement …. 11.4 devolution of estate see Devolution of estate forms of grant see Forms of grant grant of probate requires proof of testamentary capacity onus, proving capacity …. 11.14 onus, shifting …. 11.15 ‘suspicious circumstances’, no shifting onus where …. 11.16 grant of probate where original will unavailable …. 11.19 no original or copy of the alleged will produced …. 11.23 only a copy of will is produced …. 11.20–11.22 presumption of due execution …. 11.19 jurisdiction to grant representation on presumption of death elsewhere …. 11.11 jurisdiction to omit scandalous, offensive or defamatory words from probate copy of will …. 11.17–11.18 jurisdiction vested in court …. 11.1 registrar may grant representation …. 11.2–11.3 lodgement of caveat by person who proposes to challenge grant …. 11.24–11.27 multiple persons see Multiple persons — grant of representation New South Wales statutory jurisdiction to make declaration and order when person missing …. 11.12–11.13 proof of death, requirement evidence of death …. 11.6

presumption of death …. 11.7–11.9 revocation see Revocation of grant statutory jurisdiction to grant representation on presumption of death in the territories, New South Wales and Victoria …. 11.10 I Incorporation by reference doctrine of republication, qualification under …. 4.65, 6.8 document identified in will …. 4.67 document referred to as already in existence …. 4.66 existence of document at date of execution of will …. 4.64–4.65 nature of doctrine …. 4.61–4.63 Incorporeal rights estate, whether part of …. P.8 Interested beneficiary rule …. 4.54, 4.55, 4.59 Interpreter interested witness rule, application of …. 4.60 Intestacy Australian Capital Territory distribution of estate …. 9.29 intestate is not survived by a partner …. 9.31 intestate is survived by a partner …. 9.30 intestate survived by both spouse/civil partner and eligible partner …. 9.32 classes of persons who take under intestacy rules adopted children …. 9.25 curtesy and dower obsolete …. 9.22 ex-nuptial children …. 9.23 persons entitled aged under 18 …. 9.26–9.27 relationships of the whole and the half blood …. 9.28 spouses …. 9.20–9.21 stepchildren …. 9.24 concept of …. 9.1–9.2 de facto relationship — determination …. 9.80–9.84 dedicated intestacy rules New South Wales, Northern Territory and Tasmania …. 9.78

Queensland …. 9.79 disclaimer of gift …. 7.46 distribution of intestate estate under intestacy rules overview …. 9.18–9.19 forfeiture, and …. 7.64–7.65 indigenous persons’ estates …. 9.76–9.79 inter vivos gifts — taking into account …. 9.72–9.75 intestacy rules concept of survivorship, and …. 9.16–9.17 ouster by terms of the deceased’s will …. 9.7–9.8 subject to family provision orders …. 9.6 legislation …. P.13 New South Wales and Tasmania absence of persons entitled …. 9.38 distribution among relatives …. 9.36–9.37 distribution of estate …. 9.33 spouse, entitlements of …. 9.33 where multiple surviving spouses …. 9.35 where sole surviving spouse …. 9.34 Northern Territory …. 9.39–9.43 overview …. P.1 presumption against …. 9.3–9.5 Queensland …. 9.44–9.46 South Australia issue/relatives …. 9.48 spouses/partners …. 9.47 spouses/partners, right to purchase intestate dwelling houses limitation on right of personal representatives to sell interest in property …. 9.62 New South Wales and Tasmania …. 9.60–9.61 overview …. 9.56 Queensland acquisitions of shared home under election …. 9.66 election to acquire shared home …. 9.63–9.64 restriction on right to elect to acquire share home …. 9.65

South Australia election to take dwelling house …. 9.67–9.68 limitation on right of personal representative to sell interest in dwelling house …. 9.69 territories and Western Australia election to appropriate …. 9.57–9.58 restrictions on right to appropriate …. 9.59 Victoria …. 9.70–9.71 taking of intestate’s property under intestacy rules disclaimer of interest under intestacy rules …. 9.12–9.13 effect of disclaimer …. 9.15 executor or administrator to hold property on trust for person entitled …. 9.11 forfeiture of interest …. 9.14 vesting upon and following intestate’s death …. 9.9–9.10 Victoria …. 9.49 issue/relatives …. 9.51 spouses/partners …. 9.50 Western Australia de facto partner involved …. 9.55 no de factor involved …. 9.52–9.54 J Joint tenancy exception to lapse doctrine …. 7.22 forfeiture …. 7.66–7.67 interest of tenant …. P.7 overview …. 1.13 right of survivorship …. P.7 Joint wills …. 1.47 Judicial dispensing power criteria for exercise …. 4.35 ‘document’, need for …. 4.36 requisite intention admissibility of evidence …. 4.51 determination …. 4.37–4.43

factors in ascertaining …. 4.44–4.48 standard of proof …. 4.52 timing of …. 4.49–4.50 curial approach …. 4.33–4.34 object …. 4.33 overview …. 4.30–4.32 revival of will, and …. 6.20–6.21 Jurisdictional threshold for family provision application for provision ‘moral duty’, ‘moral responsibility’ or ‘moral claim’, inquiry into …. 17.62–17.66 perspective from which inquiry is made accepted community standards …. 17.79 wise and just testator …. 17.77–17.78 qualitative criteria …. 17.76 quantitative criteria — ‘adequate’ and ‘proper’ …. 17.67–17.69 link between adequacy and need …. 17.70–17.75 statutory terminology …. 17.59–17.61 timing of inquiry …. 17.80–17.82 Jus accrescendi see Survivorship, right of K Knowledge and approval will, content …. 2.27 burden of proof …. 2.28 L Land donatio, subject of …. 1.27 Lapse exceptions to doctrine charitable gifts …. 7.18 class gifts …. 7.21 gifts to discharge a beneficiary’s obligation(s) …. 7.16–7.17 joint tenancies …. 7.22 statutory prevention …. 7.19–7.20 gift of particular residue and …. 7.12

overview …. 6.12, 7.13–7.14 prevention of …. 7.15 Lawyers’ responsibility and liability conflicts …. 24.14 between clients …. 24.15–24.16 unauthorised profit — charging by lawyers …. 24.17–24.20 undue influence …. 24.21–24.23 duties of care in tort owed to third parties failure to notify executor of client will or its contents …. 24.26–24.27 general rule …. 24.24–24.25 duty to disappointed beneficiary application where undue delay in implementing instructions …. 24.33 basis of relief …. 24.29–24.31 claim for rectification of will is available …. 24.32 Hill v Van Erp, principle …. 24.28 lawyer–client retainer client’s mental capacity, ascertaining …. 24.5–24.7 identity of client …. 24.2 meeting with the client in person …. 24.3–24.4 limitation on scope of duty to disappointed beneficiaries …. 24.34 advice on the impact of co-ownership of property, limitations regarding …. 24.40–24.42 no duty to beneficiaries of former wills …. 24.35–24.37 no duty where lawyers have acted reasonably …. 24.38 no duty where testator’s instructions had yet to be finalised …. 24.39 principles of professional responsibility …. 24.1 scope of advice basic obligation to implement client instructions …. 24.8 expected knowledge …. 24.13 nature of advice required …. 24.9 parameters of duty …. 24.12 where lawyer acts in different capacities …. 24.10–24.11 Legacy demonstrative …. P.11, 7.7–7.8 general …. P.11, 7.5–7.6 overview …. 7.2

pecuniary …. P.11, 7.9 residuary …. 7.10–7.12 specific …. P.11, 7.4 sub-classifications …. 7.3 Life insurance policy nominations under, will distinguished …. 1.10 proceeds, whether part of estate …. P.6 Loco parentis ademption in equity, presumption in respect of …. 7.82 satisfaction in equity, presumption in respect of …. 7.79–7.80 subsequent advance date at which valuation of property adeemed …. 7.87 operation of presumption …. 7.83, 7.84 rebuttal of presumption …. 7.85–7.86 Lost will presumption of revocation …. 5.14 M Marriage remarriage, impact on mutual wills …. 1.50 revocation of wills …. 5.23–5.24 termination of marriage, by …. 5.35–5.41 wills in contemplation of Australian Capital Territory …. 5.25, 5.26–5.30 exception to general rule …. 5.25 jurisdictions other than Western Australia …. 5.31 South Australia …. 5.25, 5.26–5.30 Western Australia …. 5.32 Marshalling, doctrine of …. 14.18 Mental elements delegation of will-making power see Delegation of will-making power fraud, and see Fraud knowledge and approval see Knowledge and approval mental capacity see Testamentary capacity mistake see Mistake statutory rectification of wills see Statutory rectification of wills

suspicious circumstances see Suspicious circumstances testamentary intention see Testamentary intention undue influence see Undue influence Minors see also Children wills for …. 3.22–3.24 Mirror wills see also Mutual wills statutory rectification and execution …. 2.64, 2.72–2.74 Mistake clerical error, meaning …. 2.64 dependent relative revocation …. 5.21–5.22 inter vivos transactions …. 2.55 probate jurisdiction …. 2.56 no power to insert words …. 2.60–2.61 no rectification as to legal effect of words …. 2.56 power to omit words …. 2.57–2.59 statutory rectification of wills see Statutory rectification of wills Multiple persons — grant of representation decision-making by multiple personal representatives — acting severally common law position …. 11.90 ouster of general law for retainer of solicitor …. 11.93 ouster or qualification of common law by statute …. 11.92 qualification to common law by equity …. 11.91 taking title where multiple personal representatives …. 11.89 Mutual wills see also Mirror wills agreement establishment …. 1.42 evidence of …. 1.43 oral evidence, admissibility …. 1.43, 1.44 dangers in use …. 1.51 drafting …. 1.51 enforcement …. 1.40 forms …. 1.40 nature and role …. 1.40–1.41 nature of obligation on survivor …. 1.48–1.49 no benefit to survivor …. 1.47 remarriage, impact of …. 1.50

revocation …. 1.40 trust arising under …. 1.40, 1.41, 1.45–1.46 N New South Wales administration bonds and guarantees …. 11.62 allocation and distribution of estate where estate solvent …. 14.3–14.4 classes of applicants grandchildren …. 18.39 devolution in the event of simultaneous deaths …. 11.85–11.87 duties of personal representative pursuant to statute …. 12.35–12.36 family provision — eligibility to apply child, meaning …. 16.19 close personal relationship, meaning …. 16.20 de facto relationship, meaning …. 16.15–16.18 dependence, meaning …. 16.22–16.29 examples …. 16.30–16.36 eligible persons …. 16.14 household, meaning …. 16.21 family provision orders order by consent mediation and consent orders …. 20.37 releaseofrights….20.35–20.36 orders after distribution …. 20.40 variation, suspension and discharge …. 20.52 forfeiture of testamentary gift for killing statutory intervention …. 7.68–7.70 grant of administration to Public Trustee (or equivalent) …. 10.35 grant of representation statutory jurisdiction to grant representation on presumption of death …. 11.10 statutory jurisdiction to make declaration and order when person missing …. 11.12 interested witness rule …. 4.58, 4.59 intestacy

absence of persons entitled …. 9.38 dedicated intestacy rules …. 9.78 distribution among relatives …. 9.36–9.37 distribution of estate …. 9.33 estate solvent …. 14.3–14.4 multiple surviving spouses …. 9.35 protection for personal representatives via notices …. 14.53–14.55 rights of spouses/partners to purchase intestate dwelling houses …. 9.60–9.61 sole surviving spouse …. 9.34 notional estate orders (family provision) …. 20.58 determination of property subject to …. 20.74–20.75 making of …. 20.64 estate effected by relevant property transactions …. 20.66 estate effected by subsequent relevant property transaction …. 20.66 matters required before order can be made …. 20.70 matters to be considered by court before making order …. 20.71–20.73 property of deceased transferee’s estate held by legal representative or distributed …. 20.68–20.69 where property of estate distributed …. 20.65 ‘relevant property transactions’ …. 20.60–20.63 restrictions on out-of-time or additional applications …. 20.76–20.78 revocation of wills …. 5.2, 5.15 small estate administered by Public Trustee without grant …. 11.114 statutory provisions as to order of eligible administrators …. 10.28 statutory rectification of wills …. 2.63–2.66, 2.73 applications, time limits and extensions of time …. 2.76, 2.77 wills for persons lacking testamentary capacity …. 3.1, 3.16–3.19, 3.21 New Zealand judicial dispensing power …. 4.31 testamentary contracts, statutory regulation of …. 1.38 undue influence, approach to …. 2.45 Northern Territory administration bonds and guarantees …. 11.63 administration without grant of representation small estate administered by Public Trustee without grant …. 11.114

duties of personal representatives pursuant to statute …. 12.37 family provision — eligibility to apply eligible persons …. 16.13 grant of administration to Public Trustee (or equivalent) …. 10.36 interested witness rule …. 4.58, 4.59 intestacy …. 9.39–9.43 dedicated intestacy rules …. 9.78 revocation of wills …. 5.15, 5.36–5.38 statutory rectification of wills …. 2.63–2.66 applications, time limits and extensions of time …. 2.76, 2.77 vesting of estate prior to grant of representation statutory expansion of Public Trustee role …. 11.77 wills for persons lacking testamentary capacity …. 3.1, 3.16 Notional estate orders see Family provision orders O Old age testamentary capacity …. 2.14 Omnia praesumuntur meaning …. 4.20 Options common law ademption, application …. 7.33 P Pecuniary legacies …. 7.9 Personal estate …. P.10 Personal representatives administrators see Administrator entitlements see Entitlements — personal representatives executors see Executor legal duties …. P.19 see also Duties — personal representatives overview …. P.19 powers see Powers — personal representatives trustees see Trustees vacating office see Vacating office Powers — personal representatives appropriate, power to …. 13.15–13.18

purchase rule, restrictions …. 13.21 Queensland and Western Australia …. 13.20 the Territories, New South Wales, Tasmania and Victoria …. 13.19 carry on a business, powers …. 13.22–13.27 compromise, powers common law …. 13.28 statute …. 13.29–13.31 nature, source, and exercise of powers …. 13.1–13.3 power of sale …. 13.4–13.9 power to postpone sale …. 13.10–13.14 Privileged wills abolition …. 4.21 backdrop and rationale …. 4.21–4.22 class of persons eligible to make …. 4.21, 4.23, 4.24 ‘active’ or ‘actual service’ …. 4.25–4.27 formal requirements, exceptions …. 4.2 mental element …. 4.28–4.29 statutory provisions …. 4.23–4.24 testamentary intention …. 2.22 Probate …. P.3; see also Forms of grant construction, distinction …. 8.1–8.2 legislation …. P.14 Protection for personal representatives via notices backdrop and rationale …. 14.51–14.52 position in remaining jurisdictions …. 14.56–14.57 preservation of claims under trustee legislation …. 14.62–14.63 Queensland and Western Australia …. 14.58–14.59 South Australia and Tasmania …. 14.60 statutory protection for personal representatives where will rectified …. 14.64 the Territories and New South Wales …. 14.53–14.55 Victoria …. 14.61 Public trustee administrator to pay over money and deliver property to, South Australia …. 14.29–14.30 entitlements, payment of …. 13.74–13.78

grant of administration …. 10.33 Australian Capital Territory …. 10.34 New South Wales …. 10.35 Northern Territory, Queensland and Tasmania …. 10.36 South Australia …. 10.37 Victoria …. 10.38 Western Australia …. 10.39 small estate administered without grant of representation Australian Capital Territory and Tasmania …. 11.113 election to administer …. 11.115–11.118 New South Wales, Northern Territory and Queensland …. 11.114 statutory will, application for …. 3.3 vesting of estate prior to grant of representation, role …. 11.71–72 statutory expansion in Northern Territory, Queensland and Tasmania …. 11.77 Q Queensland administration without grant of representation real property …. 11.122 small estate administered by Public Trustee without grant …. 11.114 allocation and distribution of estate estate insolvent …. 14.10 estate solvent …. 14.5 classes of applicants grandchildren …. 18.39 devolution of estate in the event of simultaneous deaths …. 11.85–11.87 disposal on behalf of testator who lacks capacity, ademption and …. 7.40 family provision — eligibility to apply child, meaning …. 16.39 dependant, meaning …. 16.40 eligible persons …. 16.37 spouse, meaning …. 16.38 family provision orders

variation, suspension and discharge …. 20.53 grant of administration to Public Trustee (or equivalent) …. 10.36 interested witness rule …. 4.58, 4.59, 4.60 intestacy …. 9.44–9.46 dedicated intestacy rules …. 9.79 rights of spouses/partners to purchase intestate dwelling houses acquisitions of shared home under election …. 9.66 election to acquire shared home …. 9.63–9.64 restriction on right to elect to acquire share home …. 9.65 judicial dispensing power …. 4.31 personal representatives breach of duty …. 12.51 powers …. 13.20 protection via notices …. 14.58–14.59 revocation of wills …. 5.15, 5.36–5.38 statutory expansion of Public Trustee …. 11.77 statutory history of wills …. 21.54–21.64 statutory provisions as to order of eligible administrators …. 10.29 statutory rectification of wills …. 2.63–2.66 applications, time limits and extensions of time …. 2.76, 2.77 wills for persons lacking testamentary capacity …. 3.1, 3.16, 3.21 R Real estate …. P.10 Rectification of wills see Statutory rectification of wills Republication of will impact of …. 6.4 change in property …. 6.6 change of persons …. 6.5 gifts to attesting witnesses …. 6.9 incorporation by reference …. 4.65, 6.8 unattested alterations …. 6.7 limits on doctrine …. 6.10 ademption/lapse/satisfaction …. 6.12 intermediate codicils …. 6.11

nature of …. 6.1–6.3 Residuary devises and legacies …. 7.10–7.12 Residue gift …. P.11, 7.11 lapse of …. 7.12 Revival of will effects …. 6.18–6.19 intention to revive, requirement …. 6.15–6.17 judicial dispensing powers, and …. 6.20–6.21 nature and parameters …. 6.13–6.14 Revocation of grant effect …. 11.108–11.112 if person living at date of grant …. 11.103 jurisdiction to revoke …. 11.94–11.97 standing to apply …. 11.102 vehicle for removing personal representatives, as …. 11.104–11.107 weight accorded to executor chosen by testator in application to revoke probate …. 11.98–11.101 Revocation of will actual destruction …. 5.9 act of destruction …. 5.10–5.11 intention to destroy …. 5.12–5.13 animus revocandi …. 5.3, 5.10, 5.16, 5.17 another will or codicil, by express revocation …. 5.3–5.5 implied revocation …. 5.6–5.7 Australian Capital Territory …. 5.39–5.40 contract not to revoke …. 1.36 dealing with a will …. 5.15 dependent relative revocation doctrine of …. 5.16 execution of new will or codicil …. 5.19 mistake …. 5.21–5.22 new will already made but not properly executed …. 5.20 revival …. 5.17–5.18 divorce …. 1.36

executors and trustees — exception to general rule …. 5.34 lost wills, presumption in respect of …. 5.14 manner …. 5.1–5.2 marriage, by …. 1.36 general rule and rationale …. 5.23–5.24 termination of marriage …. 5.35–5.41 wills in contemplation of, exception to general rule …. 5.25–5.32 mental illness …. 5.13 New South Wales …. 5.36–5.38 Northern Territory …. 5.36–5.38 partial …. 1.36 powers of appointment — exception to general rule …. 5.33 Queensland …. 5.36–5.38 South Australia …. 5.39–5.40 Tasmania …. 5.36–5.38 Victoria …. 5.36–5.38 Western Australia …. 5.41 written declaration …. 5.8 S Satisfaction in equity overview …. 6.13, 7.71 presumption as between testators and creditors …. 7.72–7.73 direction to pay debts …. 7.77 identity of amounts …. 7.74–7.75 legacy as share of residue …. 7.78 time of payment …. 7.76 presumption in respect of persons in loco parentis …. 7.79–7.80 Scission doctrine of see Conflicts of law in succession Secret trusts death of trustee …. 4.76 disclaimer by secret trustee …. 4.76 doctrine of incorporation by reference, distinguished …. 4.79 elements …. 4.71 express or constructive …. 4.77

‘fully secret’ trusts …. 4.72–4.73 ‘half secret’ trusts …. 4.74–4.75 inter vivos …. 4.69 nature of …. 4.68–4.70 operation outside the will …. 4.78 Severance fraud, part affected by …. 2.54 suspicious circumstances, part affected by …. 2.38 Shares certificate, delivery as donatio …. 1.26 disposition …. P.4 gifts of, ademption and …. 7.28 incorporeal rights, as …. P.8 Signature another person on testator’s behalf …. 4.7 envelope enclosing will signature of will …. 4.10 intention to effect to will by …. 4.9–4.11 multi-paged will …. 4.11 position of …. 4.8 what amounts to …. 4.6 witnesses’ presence …. 4.12 South Australia allocation and distribution of estate estate insolvent …. 14.11 estate solvent …. 14.7 no distribution required before expiry of ‘executor’s year’ South Australia — administrator to pay over money and deliver property to Public Trustee …. 14.29–14.30 protection for personal representatives via notices …. 14.60 classes of applicants grandchildren …. 18.38 disposal on behalf of testator who lacks capacity, ademption and …. 7.39 duty of personal representatives pursuant to statute …. 12.38 remedies for breach …. 12.51

application for court order under statute …. 12.51 family provision — eligibility to apply child, meaning …. 16.43 domestic partner, meaning …. 16.42 eligible persons …. 16.41 family provision orders orders after distribution …. 20.39 forms of grant administration bonds and guarantees …. 11.64 grant of administration to Public Trustee (or equivalent) …. 10.37 interested witness rule, abolition of …. 4.57 intestacy issue/relatives …. 9.48 rights of spouses/partners to purchase intestate dwelling houses election to take dwelling house …. 9.67–9.68 limitation on right of personal representative to sell interest in dwelling house …. 9.69 spouses/partners …. 9.47 judicial dispensing power …. 4.30, 4.31 privileged wills …. 4.21 ‘active’ or ‘actual service’, meaning …. 4.25–4.27 formal requirements, exception …. 4.2 mental element …. 4.28–4.29 statutory provisions …. 4.24 revocation of wills …. 5.2 termination of marriage, by …. 5.39–5.40 wills in contemplation of marriage, exception to general rule …. 5.25, 5.26–5.30 signature of will …. 4.8 statutory history of wills …. 21.42–21.53 statutory rectification of wills …. 2.67–2.70, 2.73, 2.74 applications, time limits and extensions of time …. 2.76, 2.77 wills for persons lacking testamentary capacity …. 3.1, 3.8–3.13, 3.21 Specific devises / legacies …. 7.4 Sperm/egg samples

property in …. P.8 Statutory rectification of wills applications, time limits and extensions of time …. 2.76–2.77 Australian Capital Territory …. 2.67–2.71 ‘mirror wills’ …. 2.64, 2.72–2.74 onus of proof …. 2.66 overview …. 2.62 process of construction, relationship …. 2.75 South Australia …. 2.67–2.70, 2.73, 2.74 uniform succession laws model …. 2.63–2.66 Statutory will see Wills for persons who lack testamentary capacity Superannuation death benefits …. P.5 estate, whether part of …. P.5 nominations, will distinguished …. 1.11–1.12 Survivorship, right of joint tenancy …. P.7, 1.13 Suspicious circumstances forbearance or delay in producing will …. 2.32–2.33 forgery, allegations …. 2.35 illiterate, enfeebled or blind testator …. 2.34 overview …. 2.29 probate, effect on grant of …. 2.29 proof of …. 2.36–2.37 severance of will …. 2.38 will prepared by beneficiary or associate …. 2.30–2.31 T Tasmania administration bonds and guarantees …. 11.65 administration without grant of representation small estate administered by Public Trustee without grant …. 11.113 allocation and distribution of estate estate solvent …. 14.3–14.4 insolvent estate …. 14.10 dedicated intestacy rules …. 9.78

devolution of estate in the event of simultaneous deaths …. 11.85–11.87 duties of personal representatives …. 12.39 family provision — eligibility to apply child, meaning …. 16.46 eligible persons …. 16.44 spouse, meaning …. 16.45 grant of administration to Public Trustee (or equivalent) …. 10.36 interested witness rule …. 4.59 intestacy absence of persons entitled …. 9.38 distribution among relatives …. 9.36–9.37 distribution of estate …. 9.33 rights of spouses/partners to purchase intestate dwelling houses …. 9.56–9.70 where multiple surviving spouses …. 9.35 where sole surviving spouse …. 9.34 personal representatives powers …. 13.19 protection via notices …. 14.60 protection for personal representatives via notices …. 14.60 revocation of wills …. 5.2, 5.15, 5.36–5.38 statutory history of wills …. 21.73–21.86 statutory provisions as to order of eligible administrators …. 10.31 statutory rectification of wills …. 2.63–2.66 applications, time limits and extensions of time …. 2.76, 2.77 vesting of estate prior to grant of representation statutory expansion of Public Trustee role …. 11.77 wills for persons lacking testamentary capacity …. 3.1, 3.16 Testamentary capacity alcohol/drug abuse …. 2.14 eccentricity …. 2.14 incapacity …. 3.5–3.6 proof of …. 2.16–2.18, 3.6 ‘lost’ capacity …. 3.1, 3.7, 3.10, 3.15, 3.16, 3.17 mental capacity …. 2.2 ‘nil’ capacity …. 3.13, 3.14, 3.16, 3.17, 3.18

old age …. 2.14 overview …. 2.1 revocation by destruction …. 5.13 test …. 2.5, awareness of the nature, extent and value of the estate …. 2.7 comprehension and appreciation of claims on testator’s bounty …. 2.8–2.10 no delusions (or lucid intervals) …. 2.11–2.13 relevant time for …. 2.19–2.20 sound mind, memory and understanding …. 2.5 understanding of nature and effects of act …. 2.6 types of …. 2.14–2.15 wills for persons lacking see Wills for persons who lack testamentary capacity Testamentary instrument nature of …. 1.1 Testamentary intention animus testandi, requirement …. 2.1, 2.21 conditional intention …. 2.23–2.26 privileged wills cases …. 2.22 Testate meaning …. P.2 Testator illiterate, enfeebled or blind testator …. 2.34 overview …. 1.1 relationship with beneficiary, false allegations of …. 2.29–2.50 Trustees appointment, effect of revocation of will …. 5.34 executor (or administrator) becoming trustee assent, what amounts to assent …. 10.49–10.50 determining moment of translation to trusteeship …. 10.46 impact of assent on executor’s rights …. 10.51 impact of translation to trusteeship …. 10.45 relevant of ‘assent’ by executor …. 10.47–10.48 executor (or administrator), comparison duties and powers …. 10.41–10.42 liability …. 10.44

title and beneficiaries ‘interests’ …. 10.43 legislation …. P.16 taxation implications of executorship and subsequent translation to trusteeship ‘accrued income’ …. 10.54 capital gains …. 10.55–10.56 concession upon executorship and distribution …. 10.57 income generated during the course of administration …. 10.52–10.53 stamp duty exemption …. 10.57 Trusts inter vivos, will distinguished …. 1.9 mutual wills, arising under …. 1.40, 1.41, 1.45–1.46 U Undue influence coercion, requirement …. 2.39, 2.48 consequences of finding …. 2.47 fraud, distinguished …. 2.48 lawyers, by …. 24.21–24.23 probate law and equity, distinguished …. 2.40–2.41 proof …. 2.42–2.46 United States ‘harmless error’ rule …. 4.31 V Vacating office devolution of office no ‘administration by representation’ …. 10.86 where multiple personal representatives and one dies …. 10.82 where sole nominated executor predeceases the testator — ‘executor by representation’ …. 10.83–10.85 passing over nominated personal representative nominee is an undischarged bankrupt …. 10.70 nominee is incapacitated or the subject of the forfeiture rule …. 10.71 weight given to nominee chosen by testator …. 10.68–10.69 removal from office …. 10.81

renunciation prior to accepting office acceptance of office ordinarily precludes renunciation …. 10.60 appointment of public trustee prior to assuming office …. 10.63 appointment of trustee company prior to assuming office …. 10.61–10.62 entitlement to renounce executorship …. 10.58–10.59 retraction of renunciation by putative administrator …. 10.67 retraction of renunciation by putative executor …. 10.64–10.66 retirement from office appointment of trustees of minor’s property or payment into court, via …. 10.78–10.80 delegation to a trustee company, via …. 10.74–10.75 delegation to the Public Trustee (or equivalent), via …. 10.76 no general law right to retire …. 10.72 personal representative becomes trustee …. 10.77 pursuant to court’s leave …. 10.73 Victoria administration bonds and guarantees …. 11.66 allocation and distribution of estate estate insolvent …. 14.10 estate solvent …. 14.3–14.4 devolution of estate in the event of simultaneous deaths …. 11.85–11.87 disposal on behalf of testator who lacks capacity, ademption and …. 7.41 family provision classes of applicant see Classes of family provision applicants position from 1 January 2015 …. 16.52 query breadth of extension (position before 1 January 2015) …. 16.51 remaining de facto need for family-like connection (position before 1 January 2015) …. 16.49–16.50 shift away from list of eligible applicants (position before 1 January 2015) …. 16.47–16.48 statutory lists of criteria/factors …. 19.5 grant of administration to Public Trustee (or equivalent) …. 10.38 interested witness rule, abolition of …. 4.57 intestacy …. 9.49 issue/relatives …. 9.51 rights of spouses/partners to purchase intestate dwelling houses ….

9.70–9.71 spouses/partners …. 9.50 judicial dispensing power …. 4.31 personal representatives duties …. 12.40 powers …. 13.19 protection via notices …. 14.61 revocation of will …. 5.15 marriage, by …. 5.36–5.38 statutory history of wills …. 21.32–21.41 statutory jurisdiction to grant representation on presumption of death …. 11.10 statutory rectification of wills …. 2.63–2.66 applications, time limits and extensions of time …. 2.76, 2.77 wills for persons lacking testamentary capacity …. 3.1 post-1997 …. 3.14–3.15 pre-1997 …. 3.8–3.13 W Western Australia classes of applicants …. 18.40 duties of personal representatives pursuant to statute …. 12.41 family provision — eligibility to apply child, meaning …. 16.55 de facto partner, meaning …. 16.54 eligible persons …. 16.53 family provision orders orders for distribution …. 20.41–20.43 variation, suspension and discharge …. 20.51 forms of grant administration bonds and guarantees …. 11.67 grant of administration to Public Trustee (or equivalent) …. 10.39 interested witness rule …. 4.57 intestacy de facto partner involved …. 9.55 estate insolvent …. 14.10

estate solvent …. 14.7 no de factor involved …. 9.52–9.54 protection for personal representatives via notices …. 14.58–14.59 rights of spouses/partners to purchase intestate dwelling house election to appropriate …. 9.57–9.58 powers of personal representatives …. 13.20 restrictions on right to appropriate …. 9.59 revocation of wills, wills in contemplation of marriage 5.32 signature of will …. 4.8 statutory history of wills …. 21.65–21.72 statutory provisions as to order of eligible administrators …. 10.32 statutory rectification of wills …. 2.63–2.66 applications, time limits and extensions of time …. 2.76, 2.77 wills for persons lacking testamentary capacity …. 3.1, 3.16 Wilful default, account on the basis of …. 12.47–12.48 Will ambulatory …. 1.2, 7.14 amendment see Amendment of wills animus testandi, presumption of …. 1.3, 2.1, 2.21 characteristics …. 1.1 declaration of intention …. 1.1, 1.3 not limited to disposition of property …. 1.5 prescribed form …. 1.5 revocability …. 1.2 testamentary …. 1.3 unitary in nature …. 1.6 coded …. 4.5 conditional …. 2.24 construction see Construction of will contract not to revoke or alter …. 1.36 contract to make …. 1.26, 1.31 ‘all property’ or residue …. 1.33–1.35 legacy …. 1.32 specific property …. 1.33 contracts relating to …. 1.29–1.30 delegation of power to make see Delegation of will-making power

family provision claims and contracts …. 1.39 foreign language …. 4.5 forfeiture see Forfeiture of testamentary gift for killing forgery see Forgery formal elements see Formal elements — will formalities and enforceability of testamentary contracts …. 1.37 statutory regulation in New Zealand …. 1.38 fraud see Fraud functions …. 1.5 gifts see Gifts by will incorporation by reference see Incorporation by reference joint wills …. 1.52 knowledge and approval …. 2.27–2.28 lapse see Lapse legislation …. P.12 lost will see Lost will mistake see Mistake mutual will see Mutual will overview …. P.1 parties …. 1.1 privileged wills see Privileged wills reasons of testator …. 1.5 rectification see Statutory rectification of wills republication see Republication of will revival see Revival of will revocation of wills see Revocation of will severance …. 2.38, 2.54 statutory will see Statutory will suspicious circumstances see Suspicious circumstances testamentary capacity to make see Testamentary capacity transactions and relationships, distinguished …. 1.7–1.8 joint bank accounts …. 1.14 joint tenancies …. 1.13 nominations under life insurance policies …. 1.10 property passing under a donatio mortis causa …. 1.15

superannuation nominations …. 1.11–1.12 trusts settled inter vivos …. 1.9 validity …. P.18, 2.1 witnesses see Witnesses Wills for persons who lack testamentary capacity lack of testamentary capacity, determination …. 3.5–3.6 minors …. 3.22–3.24 nature of jurisdiction …. 3.2 overview …. 3.1 procedure for applications …. 3.3 proposal aligns with what the proposed testator may have done Australian Capital Territory …. 3.16 New South Wales …. 3.16–3.19 Northern Territory …. 3.16 Queensland …. 3.16 South Australia …. 3.8–3.13 Tasmania …. 3.16 Victoria …. 3.8– 3.15 Western Australia …. 3.16 reasonableness of order …. 3.20 statutory conditions for exercise of power …. 3.4 time when statutory will has effect …. 3.21 Wills in England and Australia — statutory history …. 21.1–21.2 Australian succession law …. 21.18–21.21 influence of English statutory history …. 21.18–21.21 England …. 21.3 Anglo-Saxon period …. 21.4 1837 to 1945 …. 21.15–21.17 1540 to 1837 …. 21.9–21.14 Norman Conquest to 1540 …. 21.5–21.8 Statute of Wills 1540 …. 21.9–21.14 New South Wales …. 21.22–21.31 Queensland …. 21.54–21.64 South Australia …. 21.42–21.53 Tasmania …. 21.73–21.86 Victoria …. 21.32–21.41

Western Australia …. 21.65–21.72 Witnesses disqualification see Disqualification of witnesses gift to, republication and …. 6.9 presence at will drafting …. 1.4, 4.12–4.14 attestation and subscription …. 4.15–4.16 attestation clauses and the presumption of due execution …. 4.19–4.20 requirement …. 4.17–4.18

Related LexisNexis Titles Dal Pont, Law of Charity, 2nd edition, 2017 Dal Pont, Law of Limitation, 2016 Mackie, Principles of Australian Succession Law, 3rd edition, 2017