In New South Wales, when someone dies, and their original Will cannot be found, the law starts with a simple—but powerful—assumption: the testator must have destroyed the Will with the intention of revoking it. This “presumption of revocation” can dramatically alter the outcome of an estate, and whether the court accepts the presumption depends on …
When Wills Go Wrong: Lessons from Re Herbert (deceased) [2025] QSC 315 Ambiguous Drafting and Executor Conduct
When parties navigate the Queensland litigation process, they have a practical tool at their disposal. This tool is Rule 366 of the Uniform Civil Procedure Rules (UCPR). This tool is often overlooked. Rule 366 is found in Chapter 10 (Court supervision), Part 3 (Directions). It empowers the Court to manage proceedings. This rule also helps …
Understanding AI in Litigation: Re Walker [2025] VSC 714 Responsibilities and Risks
In May 2024, the Victorian Supreme Court issued guidelines on the responsible use of artificial intelligence in litigation. These guidelines outline several key principles governing litigants and practitioners use of AI tools. First, anyone using AI in litigation must understand how these tools work. They must also be aware of their limitations. This understanding helps …
Behind the Seal: Royal Wills, Private Wills, and Secrecy in Probate Law
In England and Wales, once probate is granted, a Will usually becomes a public document. It is open to inspection as part of the broader system of transparency underpinning succession law. This openness is so embedded in probate practice that most lawyers never question it. It is the mechanism that allows beneficiaries to check their …
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Family Conflict in Burial Disputes: A Legal Perspective
Disputes over the disposal of a deceased person's body occur at the uneasy intersection of family conflict. They also involve cultural and religious practices and the Court's protective jurisdiction. Unlike probate matters—where formal grant processes, evidentiary rules and timelines give structure—burial disputes demand rapid judicial intervention. Decisions often must be made within hours or days …
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How Rule 7.36 Supports Self-Represented Litigants in NSW
Navigating the court system without legal representation can be daunting. It is especially challenging when finances or circumstances limit your access to professional help. In New South Wales, the courts have a specific mechanism to support self-represented litigants. This mechanism helps those who genuinely need legal assistance. It is Rule 7.36 of the Uniform Civil …
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Cultural and Legal Factors in Burial Arrangements in NSW
The Court retains an inherent jurisdiction to make decisions about the burial of a deceased person. This applies even where no grant of probate or administration has been issued. (Dayman v Dayman [2024] NSWSC 838 [24]); Brown v Weidig [2023] NSWSC 281 at [29]. Where necessary, the Court issues ancillary or consequential orders to give …
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Key Legal Principles on Missing Persons and Estate Distribution
In New South Wales, the law recognises a presumption of death. This applies when a person has been missing for seven years without any contact. There must be no trace, unless there is evidence suggesting otherwise. In such circumstances, s 40B of the Probate and Administration Act 1898 (NSW) provides the legal basis. It allows …
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Construing a Will that includes an Inter Vivos Distribution
Justice Isaacs (as he then was) explained the now well-established principles governing the interpretation of Wills in Fell v Fell (1922) 31 CLR 268 at 273–274. In determining the meaning of a Will from its own wording, assisted only by such external evidence as is necessary to understand the words the testator used. Further, the …
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Too Late or Just in Time? What the Court Considers When a Defendant Fails to Appear and a De Facto Brings a Late Family Provision Claim
Equitable presumptions Equity generally assumes that people do not intend to make gifts when contributing money towards the purchase of property. Accordingly, if A buys property but registers it in B’s name, equity presumes that B holds the property on a resulting trust for A. However, in certain recognised relationships, including a husband to his …