Succession law explained
Legal fictions are assumptions created by courts or legislation that are treated as legally true, even where they do not reflect factual reality. They exist to make the legal system workable, preserve fairness, and allow legal rules to operate where strict factual accuracy would create uncertainty or injustice. A common example is corporate personhood, where …
Continue reading "Understanding Legal Fictions: Key Concepts Explained"
Disputes over the validity of a Will often turn on two closely connected questions: whether the testator had the necessary mental capacity, and whether they truly understood and approved the document they signed. The courts continue to approach these issues through the enduring framework established in Banks v Goodfellow LR 5 QB 549, at 565, …
Continue reading "Saeedi v Pastrello[2026] ACTCA 10: Probate Dispute Insights and Video Evidence"
The New South Wales Court of Appeal in Pizzolato v Marques [2024] NSWCA 100 reinforces that delay alone seldom defeats a beneficiary’s entitlement, especially if a trustee has not fulfilled their duties. The Doctrine of Laches Laches is an equitable defence preventing claims when a claimant's unreasonable delay causes prejudice to the defendant. Generally in …
Continue reading "Pizzolato v Marques [2024] NSWCA 100: Delay and the Doctrine of Laches"
In New South Wales, property held solely or as tenants in common by the deceased forms part of the estate and is distributed according to the Will. In contrast, property held as joint tenants passes automatically to the surviving owner on death and does not form part of the estate for testamentary disposition. Survivorship Under …
Rule 680A of the Supreme Court Rules 2000 (Tas) outlines how to appeal judgments by an Associate Judge. This applies in the Supreme Court of Tasmania. Rule 680A establishes a structured review pathway encompassing both procedural and substantive determinations. Importantly, the rule adopts an expansive definition of "judgment" encompassing any decision, order, or determination made …
The estate of Mimi Milka Berger provides a recent example of the court's approach to missing original will. It illustrates how the Court handles informal testamentary document. The case also shows the evidentiary limits of the presumption of revocation. The law presumes that if the executor can not locate the original will, the testator destroyed …
What is a Family Trust? A discretionary trust is often called a family trust when the beneficiaries are related by blood. It is one of the most common trust types in Australia. It holds properties for beneficiaries who are given discretionary authority over the distribution of income. A trust is a relationship: In this relationship, …
Analysis of the interaction between remote witnessing regimes and informal Will doctrines, as technological change is accelerating the erosion of formal validity requirements in succession law. On 12 May 2020, the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (the Regulations) came into force in Victoria. The Regulations allowed for the electronic signature …
In The Estate of Shoushani; Shoushani v Tadros [2025] NSWSC 1335, the Court illustrated its readiness to intervene when estate administrators misuse their position. It steps in to correct the misapplication of estate funds. Slattery J of the Supreme Court of New South Wales addressed serious maladministration by an estate administrator. Background After the death …
When the executor fails to administer the estate. Civil Contempt In AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98;[1986] HCA 4, the High Court (Gibbs CJ, Mason, Wilson and Deane JJ) commented on the development of a distinction between civil and criminal contempt (at 106): “The distinction, not recognised in Scotland, which has …