Succession law explained
An Interlocutory Injunction is an equitable remedy designed to maintain the current situation by stopping one party from carrying out, repeating, or continuing a wrongful act before a trial occurs. These injunctions guarantee that funds remain in a bank account, prevent the sale of assets or restrain the other party from taking specific actions. Essentially, …
Continue reading "Standing & Interlocutory Injunction"
A probate caveat is a legal notice that prevents the Supreme Court from issuing a probate grant and temporarily halts an executor from managing the estate. This allows the caveator time to seek legal advice and gather evidence. If the caveator lacks sufficient interest, the personal representative can request the court to lift the caveat. …
The costs an executor incurs to defend against a Family Provision claim are typically considered testamentary expenses because they are essential for the executor to fulfil their responsibilities properly. Nevertheless, the Court retains complete discretion and authority to decide who will pay costs, to whom they will be paid, and the extent of those costs. …
Continue reading "Cost capping, Family Provision & the Estranged Child"
In Tasmania, the Supreme Court has the exclusive authority to issue orders concerning the validity of a deceased person's Will, the appointment of an executor or administrator, and the management of deceased estates. However, revocation of a Grant of probate is a serious matter, and if directed by the Court, the Registrar may order the …
Continue reading "Revocation of Probate after a later Will is found"
A Life interest differs from a right of residency in property ownership. A life interest gives the life tenant the privilege to reside in the property, collect rental income, and utilise the property as they wish while being responsible for property maintenance and certain expenses. Conversely, a right of residency is more limiting, involving restricted …
Continue reading "Life interest v personal right to reside for life"
. The Jurisdiction of Courts (Cross-Vesting) Act 1987 aimed to grant certain courts jurisdiction to handle cases involving State or Territorial law and allowed for the transfer of cases between these courts. In Re Wakim, Ex parte McNally (1999) 198 CLR 511, the High Court held that, in so far as the State Acts purported …
Continue reading "Bankruptcy, Cross Vesting & the Transfer of Proceedings"
Crown -v- Holt [2024] WASC 332 involved probate of a Will, in which the deceased's son Robert Glen Holt was named the executor. (the defendant). In addition, the deceased made the following gifts: 1. the amount of $10,000 to the defendant to 'take me and my wife's remains to NZ for burial'; and 2. his car and …
ASIC has given the go-ahead for a revised edition of the Australian Banking Association’s (‘ABA’) Banking Code of Practice, which will take effect on 28 February 2025. In response to feedback from the Law Council of Australia’s Elder Law and Succession Committee, the new Code will introduce fresh guidelines for how banks handle deceased estates. …
Continue reading "Australian Banking Association’s Banking Code of Practice"
Undue influence, which can stem from various sources such as abuses of confidence, power imbalances, and excessive pressure, often involves a weaker party. This party must demonstrate that the transaction was 'an independent and well-understood act' on their part, highlighting their vulnerability in such situations. Could the gift of the house be set aside on …
Continue reading "Unconscionable conduct, Undue influence and Elder financial abuse"
Anderson v Yongpairojwong [2023] NSWSC 1359 was a contested probate application involving two Wills made by the testatrix: one in NSW in 2017 (the Australian Will) and one in Thailand in 2020 (the Thai Will). Both Wills dealt with the same property, appointed the same executor, and distributed beneficial entitlements to the plaintiff and second …