Succession law explained
The Briginshaw principle is derived from obiter remarks of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336; To be reasonably satisfied of a matter the Court may be affected by the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the …
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In New South Wales where an executor named in the Will has neglected or refused to prove the Will (or to renounce probate) within three months from the date of death a person with an interest in the estate - such as a beneficiary or a creditor - may apply to the court for a …
An application for special administration ad colligenda bona defuncti, is made to protect the estate, or particular estate assets, where the delay in obtaining a normal grant will endanger them. A grant of administration ad colligenda bona defuncti may be necessary for estates involving businesses, or professional practices conducted by sole practitioners, which may be …
Continue reading "Intestacy, a statutory demand & the sole director"
An informal will is a document that expresses the testamentary intentions of its maker but does not meet the requirements of s6 of the Succession Act 2006 (NSW). An application may be made under s 8 of the Act for the document to form the will of the deceased. Section 8 of the Act is in two …
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Section 56(3) of the Civil Procedure Act 2005 (NSW) provides that a party to civil proceedings is under a duty to assist the Court to further the overriding purpose and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court. That conduct is also measured against the common …
In most cases an executor propounding a will pleads that at the time of execution the deceased had testamentary capacity. However, if a testator has lost capacity by the time the will is executed, the rule in Parker v Felgate (1883) L.R.8P.D.171 provides that it is enough that the testator understands they are executing a will for which …
If a person has been missing for at least seven years, a court may declare that the person is presumed to be dead. Owen Dixon J summarised the common law principles to be applied when a person has in circumstances involving the disappearance of a person, …who in the circumstances of the case would according …
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The principle behind mesne profits is that a trespasser must compensate the landowner for the use of their land. Importantly the landowner does not need to have suffered any loss with mesne profits for calculated as the amount equivalent to the ordinary letting value of the property. Following the termination or expiry of a tenancy, …
Letters of administration durante absentia (during the absence from the jurisdiction of an executor or other person entitled to a grant) may be made under s 76 of the Probate and Administration Act 1898 (NSW). An absent executor gives a power of attorney to an agent, who will receive the grant of administration with the …
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Section 10A of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act), provides that the following factors must be met for two people to be in an interdependency relationship: they have a close personal relationship; and they live together; and one or each of them provides the other with financial support; and one or each …