Cy-Pres and the 13th Amendment

I have posted before about the equitable remedies available to courts where  a specific gift within a Will fails; in the instance that no provision exists in the Will for dealing with the residue of the estate, that portion of the Will is treated as if it did not exist and would be distributed as if the deceased died “intestate”.

In most jurisdictions where this occurs, the court can step in and establish a scheme known as a cy près scheme by which a failed gift is constituted a valid charitable trust, and is distributed to an alternate charitable beneficiary that is as closely aligned to the deceased’s intentions as possible.

  • Cy-pres is a doctrine which is applied when the strict terms of a will cannot be carried out and is subject to certain conditions;
  • the testator must exhibit in their will a general charitable intention.
  • there must be impracticability in the fulfilment of the charitable intention of the testator.
  • the condition of the gift that causes the impracticability must not be an essential term of the bequest.


Abolition, was the movement seeking to end slavery in the United States; active both before and during the American Civil War.

Francis Jackson, a Real estate developer and Boston City Councillor was born into an abolitionist family that included siblings Edmund, George, Stephen, Lucretia, and politician William Jackson, who was also against slavery.

Jackson sheltered fugitive slaves in Boston and was involved with the trial of Anthony Burns who had escaped from slavery in 1853 and reached Boston. In 1854 Burns was captured under the Fugitive Slave Act of 1850 and tried in court. Bostonians fiercely resisted the Fugitive Slave Act, and the case attracted national publicity. Federal troops were employed to ensure Burns was transported without interference to a ship headed back to Virginia post-trial.

In his will, Jackson established a Trust to assist among other groups abolitionist’s to

“create a public sentiment that will put an end to negro slavery in this country”.

admonishing the State of  Massachusetts:

“Disregarding the self-evident declaration of 1776, repeated in her own constitution of 1780, that ‘all men are born free and equal,’ Massachusetts has since, in the face of those solemn declarations, deliberately entered into a conspiracy with other states, to aid in enslaving millions of innocent persons”

Four years after Francis Jackson’s death Slavery was abolished in the United States through the 13th Amendment. His brother Edmund Jackson led the call to unwind the anti-slavery trust. However,  in Jackson v. Phillips the Court disagreed and ordered that to best fulfil Jackson’s wishes a cy-pres scheme should be established

“to promote the education, support and interests of the freedmen, lately slaves, in those states in which slavery had been so abolished”.


Main Residence CGT exemption & the Executor

CGT does not apply to the testator’s main residence if:

  1. It is sold within two years; whether or not it is used as a main residence or to produce income during the two-year period.
  2. From the deceased’s death until it is sold, the dwelling is not used to produce income and is the main residence of one or more of the spouse of the deceased immediately before the deceased’s death; or an individual who had a right to occupy the dwelling under the deceased’s will or as a beneficiary, you dispose of the dwelling.

A dwelling is considered to be your main residence from the time you acquire your ownership interest in it if you move in as soon as practicable after that time.

Earlier this year the Commissioner of Taxation extended the time that executors may dispose of the deceased’s main residence and still claim the main residence CGT exemption.

The “safe harbour” decision will assist executors where administration of an estate is delayed due to circumstances beyond their control such as lengthy family provision applications or extensive searches for beneficiaries, that result in delays carrying out their duty to dispose of the deceased’s property.

CGT Safe Harbour Rules

Executors have been granted an additional 18 months to dispose of the property, and will now have up to 42 months to settle the sale of a deceased’s main residence and still claim the exemption without having to seek the Commissioner’s approval if during the first two years post-death, over 12 months was spent addressing one or more of the following circumstances:

• a challenge to the ownership of the property or validity of the Will

• delays in disposal due to a life or other equitable interest

• the complexity of the administration of the estate

• a delay or termination in settlement of the disposal following circumstances beyond the executor’s control.

• The dwelling was listed for sale as soon as practicable after the above circumstances were resolved.

• Settlement occurred within 12 months of listing the dwelling for sale.

And disposal has not been delayed by:

• waiting for a pickup in the property market

• delay due to renovations to improve the sale price

• organising the sale was inconvenient for the executor

• unexplained periods of inactivity during the administration process.

• The extension of time required is no more than 18 months.

• What does this mean for executors?

The commission assumes that If the above conditions are satisfied, the executor is entitled to extend the two-year time limit up to an additional 18 months.

It is important that executors maintain sufficient records to prove they have met the above conditions, should they be called on for a compliance check by the ATO.

It is also important to note that the Commissioner has confirmed it will not entertain even a small delay beyond two years where no relevant circumstances are present.

Intestacy, Defacto & the Factual Matrix

In order for a Court to determine whether two people are in a de facto relationship it may require detailed affidavit evidence (including investigations of telephone and bank records) when assessing the nature and extent of the relationship.

Shirley Gardner died intestate in 2017. Her marriage in 1998 had voided her last known will dated 10 October 1989.

Shirley’s husband predeceased her; similarly, her only child predeceased her.

In 2018 Jose Bernengo claimed that he was Shirley’s surviving de facto spouse and sought letters of administration and a declaration that and was entitled to the whole of the estate.

Jose submitted that he and Shirley had been in a de facto relationship (that they had kept largely secret from the outside world – including members of Shirley’s family) for approximately 10 years up until the time of her death.

Jose split his time between Shirley’s home in Cammeray and his own country property in Rylstone, NSW. However, he spent more time at Cammeray than he did in Rylstone.

Both Shirley’s step-daughter and her neighbour corroborated Jose’s evidence regarding the nature and duration of the relationship.

Shirley’s nephew Edward filed a cross-claim seeking letters of administration and a declaration that Shirley’s other nieces and nephews (and grand-nieces and grand-nephews) were entitled to the whole estate.

Edward submitted that Shirley and Jose were only friends; had not displayed affection towards each other at family events, and although agreeing Jose occasionally stayed at Shirley’s home in Cammeray it was not as often as Jose submitted.

Edward relied upon evidence from hospital admissions where Shirley stated she lived alone.

Edward submitted that in a conversation he had with Shirley she claimed that she “tolerated” Jose as evidence that a relationship between his Aunt and Jose didn’t exist.

Edwards evidence was corroborated by a number of the other nieces and nephews, as well as other family relations and friends.

The Court believed that although superficially a number of these factors suggested that Shirley and Jose had not been in a de facto relationship there was much strongly supportive evidence that they were in a de facto relationship for at least 2 years before Shirley’s death.

The Court ordered that Jose was Shirley’s surviving spouse and was entitled to the entirety of her estate and granted him letters of administration.

Solicitor Drafts Will is Named Executor and Seeks Commission – Court isn’t impressed.

Margaret Szadovszky died, aged 92, in November 2016, leaving one surviving child, Frank, her husband predeceased her. Margaret’s last will, made on 14 January 2009, named her solicitor John Zigouras as her executor, leaving the whole of her estate, to Frank.

John’s legal firm charged the estate $7,699.50 in legal fees for acting in the administration of the estate. The Will did not provide for the executor to engage his own legal firm and to charge full professional legal fees.

John was an experienced, practising solicitor; administration of the estate was straightforward with the court finding there was “no need to arrange the sale of the home, instruct at an auction, clear personal possessions, sort private papers, sell a car, re-home pets, ascertain uncertain financial or taxation information or even arrange the funeral. There was no litigation’.

As we have posted before the role of executor is a fiduciary one; by retaining his own firm, John had a conflict of interest and would be unable to pay legal fees from the estate to his firm in the absence of fully informed consent of the beneficiary. Frank, represented by independent solicitors throughout the administration, gave his consent to John for the legal fees.

John approached Frank seeking an agreement for commission of 1.5 per cent (amounting to about $30,000). Commission is an expense of the estate, payable out of assets like any other expenses, and is incapable of being paid if the estate is fully distributed. By this stage, John had distributed over $1.72 million with $54,000 held pending this claim.

Frank claimed that an amount of $12,777.83 retained until 25 June 2018, should have been distributed over a year earlier; objecting to the $54,000 retained pending finalisation of the taxation and the claim for commission.

An executor is entitled to retain an amount sufficient for a claim for commission at the end of the administration, however, neither the retention of the $12,777.83 or its subsequent release was explained.

The Court didn’t consider that holding on to this amount was significant as the executor is permitted some margin for error, that this amount was required for commission and taxation; it wasn’t flagrant and did not cause a loss to the estate.

However, John failed to produce an itemised bill despite six written request; the Court held that failing to provide details of the legal fees to a beneficiary did not meet the duty to keep a beneficiary informed nor was it acting in good faith.

Similarly, an itemised bill should have been provided in accordance with the obligations imposed by the Civil Procedure Act 2010 (Vic), as without an itemised bill it is impossible to assess whether or not there was any ‘double-dipping’ in this claim.

In exercising its discretion regarding the award of commission the Court held that John’s long delay in making an application, notwithstanding that administration of the estate was fully completed well within the executor’s years as unacceptable. The Court dismissed the application for commission, ordering that John pay both his own and Frank’s costs personally, and not out of the estate.

Family Provision is not straightforward

Pascall Comninos, sought a family provision order out of the estate and notional estate of his brother, Stavrianos, pursuant to Ch 3 of the Succession Act 2006 (NSW) (“the Act”) and sought an order restraining the executor from dealing with the Stavrianos estate pending the determination of the family provision application.

As we have outlined previously in order to successfully make a family provision claim on an estate; a two-stage approach is applied by the Court:

  1. was the provision (if any) made for the applicant ‘inadequate for (his/her) proper maintenance, education and advancement in life’ having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and
  2. the relationship between the deceased and other persons who have legitimate claims on the estate.

Stavrianos left a Will, dated 14 May 2013, Probate of which was granted, on 10 January 2018; the estate had an estimated value of $4,340,622.

Pascall a disability pensioner, was Stavrianos’s younger brother and submitted that he had not received any provision from the estate of either of his parents, even though he had made a substantial contribution to building their estate assets.

Pascall claimed that he had a “very poor, strained and complex relationship” with his mother and “was generally on the outer with her for reasons which I still do not understand”. Similarly, Pascall’s relationship with Stavrianos deteriorated due to a combination of factors including their mother’s influence, following the death of their father in the early 1970s.

The brothers had a falling out over non-payment of wages to Pascall by Stavrianos; who allegedly attacked Pascall with a knife; in the ensuing struggle Stavrianos was “ his privates” before Pascall left the scene. After which there was little, or no, contact between the brothers for more than 40 years prior to Stavrianos’s death.

Pascall decided to make a claim as he believed he had performed a large amount of work for the accumulation of assets by their parents, which were then transferred to Stavrianos

The Court dismissed Pascalls application with costs as the case was without substance and continuation of the proceedings would be an abuse of process and frivolous, as the Plaintiff’s case cannot possibly succeed. There was very little, if any, contact between the brothers for more than 40 years prior to Stavrianos’s death; nothing in their relationship over that period that creates an obligation, on the part of the deceased, to make provision for the Plaintiff in his Will.

The application amounts to little more than a contention that an obligation was owed to him because he was the deceased’s brother and because the deceased had been favoured by their parents.

It is impossible to conclude that Pascall would be able to establish any factors which, when added to the facts which render him an eligible person, give him the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition.

Equity & the Intestacy of a Beneficiary prior to distribution

As a law student I remember my first week of Equity very clearly. The first case that we studied was Commissioner of Stamp Duties v Livingston [1965] AC. Prior to studying succession law I was perplexed by the decision of the Privy Council regarding the interest held by the widow who was a named beneficiary but died intestate prior to the completion of administration by the executors named in the Will.

Hugh Livingston died in New South Wales in 1948 with real and personal property in both New South Wales and Queensland. Hugh left one-third of his estate (”the estate”) to his widow Jocelyn; who died intestate in New South Wales before the estate could be fully administered, following remarriage, and having taken her new husband’s surname, becoming the late Mrs Jocelyn Coulson.

Upon death a Will Maker’s estate automatically vests with their executors until administration has been completed and the estates assets have been distributed to the beneficiaries named in the Will.

Hugh’s executors held his property as they had not completed administration therefore they could not transfer the residue of the estate to the trustees to hold on trust for Jocelyn.

At the time under Queensland’s tax law, succession duty would be payable on all of Hugh’s Queensland property on both his and Jocelyn’s death if she held a “beneficial interest” in the Queensland property.

Beneficial ownership is an equitable interest in the economic benefit of the property; beneficial owners have a right to income from the property including the proceeds of sale. Legal owners (not always the same as the beneficial owners) hold the beneficial ownership on trust for the beneficial owners.

Equity – the short answer

Equity provides remedies in situations in which precedent or statutory law might not; Equity arose following from common-law courts limited relief in civil cases to the payment of damages, the recovery of property, or both, refusing to extend relief to meet the needs of new and more complex situations.

As early as the thirteenth century the Kings common law courts were limited in providing restitution. Aggrieved litigants sought more effective justice by petitioning the King with the petitioners being referred to the King’s principal minister, the Lord Chancellor; by the middle of the fourteenth-century petitioners approached the Lord Chancellor directly, leading to the Court of Chancery being recognized as a distinct court that fashioned novel equitable remedies

Privy Council

The Privy Council had to decide whether Joycelyn had a beneficial interest in Hugh’s Queensland Property when it was being held by the executors; finding Jocelyn was not entitled to any beneficial interest in any property in Queensland at the date of her death. However Jocelyn was entitled to a chose in action in respect of her rights under Hugh’s will, capable of being invoked for any purpose connected with the proper administration of his estate.

A Chose in action is an intangible property right which can only be claimed or enforced by (legal) action.

A beneficiary under an estate has no interest in the property to be administered, but only a right to require the estate to be duly administered, and to receive an appropriate proportion of the nett estate.

The estate of a deceased comes to the executor ‘virtute officii . . in full ownership, without distinction between legal and equitable interests’ but they hold the estate ‘for the purpose of carrying out the functions and duties of administration, not for [their] own benefit’.

The question was whether Jocelyn’s share in Hugh’s real and personal estate in Queensland, a share that had devolved on her death to those entitled under her intestacy, was subject to Queensland succession duty.

The Privy Council held that Jocelyn did not have a beneficial interest and therefore no succession duty was payable on her death.

Bob Hawke & Family Provision

Bob Hawke was Australia’s 23rd Prime Minister leading the Australian Labor Party to victory in 1983, 1984, 1987, and 1990, making him the most electorally successful Labor Leader in history. Hawke was born in Bordertown South Australia; attended the University of Western Australia and was a Rhodes Scholar.

In 1956, Mr Hawke joined the Australian Council of Trade Unions (ACTU) as a research officer, working through a number of roles before eventually being elected ACTU President in 1969, where he achieved a high public profile.

In 1980 Mr Hawke was elected to the House of Representatives as the Member for Wills in Victoria; leading the ALP to victory at the 1983 election.

Mr Hawke married his first wife Hazel in 1956 they had four children; Susan (born 1957), Stephen (born 1959), Roslyn (born 1960) and Robert Jr, (born 1963 who died in early infancy).

Mr Hawke was known throughout his first marriage for his heavy drinking and womanising. Notably Mr Hawke had an extra marital relationship with his biographer Blanche d’Alpuget; leaving Hazel for Blanche in the 1990’s leading to an estrangement from some of the members of his family for a time. Reportedly Mr Hawke and his family reconciled by the 2010s.

Mr Hawke died on 16 May 2019, aged 89 of natural causes, at his home in Sydney.

Mr Hawke reportedly left an estate in excess of $15M to his second wife Blanche, with a separate arrangement for the payment of $750,000 to each of his children and stepson on his death.

Reportedly Mr Hawke’s daughter, Roslyn Dillon is preparing to make a family provision claim on the estate; a two stage approach is applied by a Court in considering such applications:

  1. was the provision (if any) made for the applicant ‘inadequate for (his/her) proper maintenance, education and advancement in life’ having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and
  2. the relationship between the deceased and other persons who have legitimate claims on the estate.

Roslyn, as a child of Mr Hawke, is eligible to make a claim on the estate and the court will consider various factors in assessing her claim; if Roslyn can establish that she has not received sufficient provision for her proper education, maintenance and advancement, then the court may make an order for the estate to meet her financial need.

Promissory Estoppel & the Conditional Gift

Promissory estoppel is an equitable doctrine in which the promisee who relied upon a reasonable promise who has subsequently suffered loss may recover damages from the promisor

Faith Richardson was born in 1934; married at the age of 19 and had four daughters, Gloria, Vicki, Grace and Fiona.

Following the death of her ex-husband in 2010, Faith sold property she owned in South Grafton and commenced living with her daughter Fiona’s family at a rental property in Orange.

Fiona and her husband John have three children: twins born in 1999 and a daughter born in 2009.

In late 2011 Fiona and John purchased a property in Orange (”the property”) for $470,000, of which Faith contributed $220,000 pursuant to a Deed of Family Arrangement (“the Deed”).

The Deed conditionally gave $220,000 to Fiona and John to assist them to purchase the property. By the Deed, Fiona and John undertook to care for Faith, allow her to live with them and to fund her transition to an aged person’s unit or care facility when necessary.

Fiona and John subsequently sold the property purchasing a new property about 25 kilometres outside of Orange. Faith argued that this move occurred without her consent. After initially moving with Fiona and John; Faith later moved out and has not returned to live there.

Faith commenced action against Fiona and John seeking the return of $220,000, arguing it was a “conditional gift”

At first instance the Court held that not only did Faith agree to the move, she was enthusiastic about it; therefore Faith was estopped from making the claim, and was not entitled to the return of her “conditional gift”, nor to the higher amount of $345,000 to which she alleged her original contributions had grown by reason of Fiona and John’s investment in the Orange property.

On appeal Faith’s submissions were dismissed unanimously by the Supreme Court of NSW.

Downton Abbey, Brideshead Revisited & the Descendants – Succession as a Plot Device

An entail or “fee tail” operates like a will that sets up a primogeniture system for real estate. Entail restricts the sale or inheritance of an estate and prevents the property from being sold, or left by will, to anyone other than a pre-determined heir. The primogeniture system meant the eldest son inherits the title, even if he had an older sister. Daughters couldn’t inherit their father’s title even if they had no brothers, and daughters’ sons and grandsons couldn’t inherit. The title had to pass to and through legitimate sons. A feature of Pride and Prejudice is the problems that can arise through the entailing of property.

Entailing property was an attempt to maintain the high social status of a family. A lord or other landholder left his house and land to his son “and the male heirs of his body.” ensuring that a single male descendant gets all the family’s real estate. Where the family has a noble title, the entail follows the title, so the same man gets the real estate and the lordship.

The importance that ownership of an estate had, as a source of wealth and a symbol of family status isn’t easily dismissed. A landowner was essentially a trustee with a duty to preserve their land for future generations explaining the desire for property to go only to a male heir.

An estate could lose its status by two means

1) Division. If it were divided equally between all heirs over several generations, leading to numerous smaller landholdings that didn’t meet the requirements for similar social status; and

2) Dissipation. If the head of the family were impecunious and was forced to sell his land to raise funds, and then fritter away the sales proceeds, the whole family sinks into obscurity.

Primogeniture was devised to eliminate division. Entailments were devised to combat dissipation.

Pride & Prejudice

In Pride and Prejudice Mr Bennet, the father of protagonist Elizabeth Bennet had only a life interest in Longbourn, the family’s home (and principal source of income) as the property was entailed.

Mr Bennet had no power to sell Longbourn, or gift it through his will as it was strictly arranged to be inherited by the next male heir. If Mr Bennet had fathered a son it would have passed to him, but it could not pass to any of his five daughters – Mr Bennet’s cousin as the next nearest male heir would inherit the property.

Mr Bennet’s death would mean that the five Bennet daughters, would lose their home and income. In the novel, Mrs Bennet is motivated by the desire to arrange a good marriage for each of her daughters to ensure their financial security.

Jane Austen’s brother Edward, had inherited entailed estates from Thomas and Catherine Knight, distant cousins of their father under the will of Elizabeth Knight, who died in 1737. When Thomas died in 1794 he left the estate to his wife for her life, who subsequently moved away before her death and gave up the estates to Edward. Catherine Knight’s will stipulated that Edward change his legal name to Knight which he did in 1812.

Downton Abbey

Robert Earl of Grantham has a problem; he has no sons, and an “entail” keeping any of his three daughters from inheriting his great estate and mansion: Downton Abbey. In essence, The Earl has the full use of the property during his life (a life estate) and, at the end of his life, it will pass to the closest male heir.

The Earl had a good relationship with the heir, his first cousin James Crawley, and there was even an engagement between the Earl’s oldest daughter Mary and James’ son Patrick. However, the heir and his son both perished on the Titanic. So the new heir, Matthew Crawley, the Earl’s third-cousin, once removed, thanks to the entail will someday inherit the earldom, the farmland, and Downton Abbey.

The fee tail allowed a patriarch to keep his estate intact in the hands of one male heir thereby perpetuating his family-name, wealth and power through a series of male descendants. It was a form of trust whose trustees are replaced as they die allowing the trust to effectively continue indefinitely.

In England, the succession often appeared to be seamless from patriarch to patriarch, due to the baptism of the eldest son and heir with his father’s Christian name for several generations.

Brideshead Revisited

In Brideshead Revisited the entail ended with the current Lord Marchmain allowing him to leave his estate to his eldest daughter Julia bypassing his eldest son and presumptive heir. When asked if she would accept it Julia replied

‘Certainly. It’s papa’s to leave as he likes.’

In Downton Abbey catastrophe was averted when Roberts eldest daughter Mary married Matthew, who subsequently died, but not before providing a son George – a new heir to the Earldom although via his Father and not his Maternal Grandfather.

Although Fee tail was abolished in 1925, entailed estates may still exist if they were created before this date, however, no new fee tails can be created as of 1996.

In general, the Rule against perpetuities at common law provides that an interest in real or personal property is void if it vests later than 21 years after the death of everyone alive (including unborn children) at the time the gift was created.

All State and Territory jurisdictions in Australia except South Australia have retained the Rule but have modified it in different ways by statute, mostly specifying a maximum perpetuity period of 80 years.

It is more accurately described as the rule against remoteness of vesting for it is not a rule against interests that last too long but rather against interests that vest too late. As we saw yesterday if a gift in a will violates the Rule against Perpetuities, the court will simply strike that gift and transfer the subject of the gift as if the will had not mentioned it.

The Descendants

Matt is a real estate lawyer and although he is a bit uncomfortable about admitting it (and tries to live a relatively middle-class life) is one of the descendants from the union between a white settler and a native Polynesian princess in the 1840s. The family tree stretches back to the earliest white settlers in Hawaii.

As trustee for the family trust, whose principal asset is an unspoiled tract of land on Kauai, Matt is mindful that due to the rule against perpetuities the trust is expiring in seven years. He feels pressure from his cousins who want to cash out by selling the land that will make them all multimillionaires however Matt feels troubled that he might betray a 150-year-old legacy.

At the King family meeting, the majority of the cousins wish to sell the land, Matt decides against this and wants to look for a different solution to the problem posed by the rule against perpetuities. Several of the cousins tell a resolute Matt that they will take legal action if the property isn’t sold. Similarly, how will Matt prevent the land from being developed during the trusts final seven years?

If the cousins take action for breach of trust and Matt is found to have breached his trustee’s duties it would take a sizable amount in legal fees and delay any sale by the length of the case.


Executor, Joint Tenancy, Survivorship & Power of Attorney

Maud Inch made a Will leaving her estate to her three children; she appointed two of her children, Cecil and Maud junior, as her executors. Her estate included real estate at Bondi Junction known as lot 2. Maud died in 1968; Cecil and Maud junior obtained probate and transmitted lot 2 to themselves as executors, and joint tenants; later Maud made Cecil her power of attorney. In September 2008 Maud junior executed a Will, using a printed “will form”naming her friend Aurera Valverde as executor.

Joint tenants have equal ownership and interest in the property and the right of survivorship; therefore if one of the joint tenants dies, the property will automatically pass to the surviving joint tenant regardless of any contrary intentions in the will of the deceased.

In September 2009 Cecil made a will appointing his wife Joycelyn his sole executor and beneficiary.

In October 2009 Cecil and Maud exchanged contracts to sell lot 2. Five weeks later, Maud junior died, Cecil completed the sale, by signing the transfer for himself and under Maude Junior’s power of attorney. Two weeks later, Cecil died. The proceeds of the sale were paid to Jocelyn (although probate was never obtained). Aurera brought proceedings against Jocelyn as executor of Cecil’s estate to recover part of the proceeds of the sale.

A power of attorney operates until the death of its grantor; the executor of the estate handles all financial and legal matters, according to the provisions of the will following the death of the grantor. An individual can designate a power of attorney to an attorney, family member or friend and also name that same person as the executor of the estate. Maud assigned power of attorney to Cecil, who represented her in life. When Maud named Aurera as executor of her estate in her will, Aurera represents her in death.

The Court held that the expression “joint tenancy” takes on a different meaning when used in the context of several holders of the office of executor of a deceased estate; in order to enable them to perform their executorial duties, the law gives them a joint interest in all estate assets; that joint interest differs from an ordinary joint tenancy because, not only are all the executors seized of the entire interest, but so is each one; it is a joint tenancy, but of a special kind: Union Bank of Australia v Harrison, Jones & Devlin Limited(1910) 11 CLR 492 at 520-521.

Although executors might be declared to be “joint tenants”, they are also and primarily executors; and the nature of their office does not, for example, permit them to sever their joint interest and to create a tenancy in common. Unless Cecil and Maud agreed to the contrary, the respective beneficial entitlements of Cecil and Maud junior to, or in respect of, Lot 2 were to be determined by reference to the will of Maud senior. Section 26(1) of the Conveyancing Act 1919 provided that those beneficial entitlements were held as tenants in common in equal shares. `

At the time contracts for Lot 2 were exchanged in September 2009, Cecil and Maud junior were joint tenants themselves and as beneficiaries under the will of Maud senior, as tenants in common in equal shares. With the passage of time, and in the absence of evidence about ongoing administration of the estate of Maud senior, it is more probable than not that, but for the controversial question whether “assent” requires the formality of registration under the Real Property Act, they held legal title as trustees for themselves rather than as executors of Maud senior’s estate.

Subject to the registration of the notice of her death (under the Real Property Act, section 101), Maud junior’s role as an executor or trustee of Lot 2 ended. As between Cecil and Maud junior’s estate, half, at the time of her death, Maud was entitled to a half share of the property as a tenant in common in equity, that entitlement continued to subsist despite her death, enforceable by her legal personal representative, Aurera subject to a grant of representation. Maud junior upon completion of the sale of Lot 2 Bondi Junction, by the contract of sale dated November 2009, was beneficially entitled to 40% of the net proceeds of the sale.