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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
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
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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,
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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
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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.
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‘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.
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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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221. 222.
223.
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225. 226.
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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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230. 231.
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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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