Adverse possession allows a person who occupies land without the owner’s permission to gain legal title following a specified statutory period. The doctrine rests on the notion that the occupier should productively use the land and that long-term neglect by the legal owner justifies a shift in ownership to the occupier. Two elements are required …
Draft or Disposition? Appellate Limits on Informal Wills under s 8 of the Succession Act 2006 (NSW)
In Kemp v Findlay [2025] NSWCA 46, the NSW Court of Appeal clarified that informal documents must be intended to operate as a Will “without more,” distinguishing valid testamentary acts from drafts or instructions. In 2011, Elizabeth Kemp (the appellant) and Andrew Findlay (the deceased) began a de facto relationship, during which they had three children. …
Burial? Cremation? – Conflict between next of Kin
The Supreme Court of Western Australia has inherent jurisdiction to resolve disputes concerning controlling a deceased’s funeral and disposal of the body. This jurisdiction is preserved by s4 of the Administration Act 1903 (WA). The legal framework is based on the following core principles: It is essential to note that no property ownership is associated …
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Presumption of Death & Survivorship
A person may be presumed to be dead if at least seven years have passed since their disappearance. However, whether the person has died is a question of fact; therefore, it is not always necessary to wait seven years – even when that person’s body has not been found. Having referred to a presumption of …
A Will Kit & Testamentary Capacity
On 5 August 2021, Renato Sorati (the deceased) used a "Will Kit" to document his intentions to distribute his estate. The central issue in this case is whether the deceased had the necessary testamentary capacity on that date. The deceased married Robyn Sorati (the plaintiff) in 1991. He had two sons, Paul (the defendant) and …
Will not seen by, but read in full to the Deceased
Re Norris; Lindsay v Howie [2025] VSC 85 S PRB 2024 23208 is a dispute between Ms Lindsay, (the plaintiff) one of Ms Norris's (the deceased) nieces, and John David Howie (the defendant), Ms Norris's husband for nearly 20 years. Gray J made several uncontested findings on contextual matters, which are crucial to understanding the …
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Funeral & Burial – Aboriginal Cultural Considerations
Ricky John Morris (the deceased) died on 5 November 2024 at the age of 37. He is survived by his wife, Kimberley Friday (the respondent), along with their four young children. Furthermore, he leaves behind his mother, Phyllis Taylor (the applicant), and his younger sister and extended family members. A dispute has arisen concerning who …
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Applying Trust Property Cy-près.
A trust is an entity established by the equity that a court of equity can recognise. A “trust” can be defined as a relationship between a trustee and a beneficiary regarding a specific property. More specifically, a trust is present when the holder of a legal or equitable interest in the property is obligated, as …
Conflict between lawyer’s and client’s interests
In its inherent jurisdiction, the Supreme Court can issue an order to prevent solicitors from participating in a case where a fair-minded and reasonably informed member of the public would determine that the proper functioning of justice necessitates that the solicitors be barred from involvement to maintain the integrity of the judicial process and ensure …
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Family Provision: Court Apportions Burden
In Pillinger v Lees [2024] NSWSC 1067, Hmelnitsky J decided that the deceased did not make adequate provision for the Plaintiff. An order issued under s59 of the Succession Act 2006 (NSW) for additional provision, concluding sufficient provision consists of $1,500,000 designated for accommodation, $850,000 intended to generate income, and $400,000 for unexpected situations. The …
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