Succession law explained
Pauline Tyson (”the deceased”) died on December 11, 2003, shortly after finalising her last Will. In this Will, the deceased named her brother Howard ( “the executor”) as the executor and trustee of her estate. The deceased bequeathed $65,000, the furnishings from her home and all her other personal belongings to her daughter, Wendy. Additionally, …
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Erem v Moussa [2024] NSWSC 641 (Richmond J) involved testamentary capacity, the mental ability to sever a joint tenancy, proprietary estoppel, resulting trust, Will rectification, and alternatively, a family provision order. The matters concerned the estate of Mary Moussa (the deceased), who lived with Ali Erem (the plaintiff) from 1990 until she died in 2015. …
In Phillips v The State Coroner & Anor [2024] SASC 134, the applicant is the mother of the deceased Scot Adam Phillips, whose body is currently in the coroner's custody. The second respondent is the deceased's twin sister. The matter concerns the funeral arrangements for the deceased and whether the deceased should be buried or …
In Kramer v Stone [2024] HCA 48, the High Court dismissed an appeal from Kramer v Stone [2023] NSWCA 270; 112 NSWLR 564 concerning the criteria for establishing liability under "proprietary estoppel by encouragement," an equitable remedy based on an expectation of future property ownership induced by representations that the respondent relied upon to their …
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A cost agreement can be highly beneficial for several reasons. First, it serves as prima facie evidence that a practitioner has provided adequate cost disclosure and that the costs are fair and reasonable, as outlined in s 172, particularly s172 (4) of the Legal Profession Uniform Law (LPUL). Additionally, it ensures that a client's contractual …
Continue reading "Successful Outcome & the Conditional Cost Agreement"
In Atchison v Holloway & Anor; Holloway & Anor v Atchison [2024] NSWSC 1523, Two sets of legal proceedings are currently before the Court. The first involves a claim by Noelene Joan Holloway (Defendant in Possession Proceedings; Plaintiff in Family Provision Proceedings) against Lorraine Ann Atchison and Jennifer Ada Richards, the executors of the estate …
Continue reading "Possession, Provision, & the Deceased Estate"
Disclaimer of Gifts or Entitlements Beneficiaries are not obligated to accept a gift under a will or an entitlement arising from intestacy. A beneficiary may disclaim a gift or entitlement, which can be made verbally, in writing, or through conduct. Jemal David Zagami (as administrator of the deceased’s estate) v James [2017] WASC 292 Jean …
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Freezing orders, often referred to as asset preservation or Mareva orders, are issued by the Supreme Court to safeguard an individual’s assets. A freezing order prevents the hiding, transferring, or spending of assets believed to have been obtained unlawfully (directly or indirectly). The Mareva injunction is an equitable remedy that originated from Denning LJ’s interpretation …
In New South Wales, an applicant for a family provision order must first establish they are an “eligible person.” s57(d) of the Succession Act 2006 (NSW) provides that a “former spouse” is an eligible person and, in certain circumstances, may acquire a benefit from their ex-partner’s Estate. A family provision claim is an application to …
Continue reading "Family Provision– The plaintiff & deceased divorced in 1992"
In the Australian Capital Territory, s11A of the Wills Act 1968 allows a document that reflects the deceased’s testamentary intentions to be recognised as a Will, even if it wdoesn't meet formal execution requirements if the Supreme Court finds intent. The Court assesses intent by examining the document and additional evidence, including prior statements from …
Continue reading "Judicial advice as to the construction of the Will and the Codicil"