Succession 2

(3) TRUSTS AND POWERS OF THE PERSONAL REPRESENTATIVE
This chapter was updated by Marcus Katter BBUS(Man) LLB(Qld), GradDipIL(Syd) Barrister-at-Law
(A) General The paragraph below is current to 28 July 2011 [395-4450] Personal representative can become trustee During the administration of the estate, all the legal and beneficial interests in the estate assets vest in the executor or administrator, and the beneficiaries do not have any interest in the assets themselves however, what they do have is a chose in action (personal right) against the personal representative.1 The task of the personal representative is to administer the estate according to law, and once he or she has completed his or her duties of administration (apart from finally transferring the assets to beneficiaries or placing them in the hands of trustees) the personal representative holds the assets concerned as constructive trustee for the beneficiaries2 and, depending on the terms of the will, the equitable interests in the assets themselves vest in the beneficiaries.3 The crucial moment when the personal representative becomes constructive trustee and interests in the assets themselves vest in beneficiaries is defined by when the assets have been set aside for the beneficiary by the personal representative, or when the personal representative has assented to the trusts of the will, or when the personal representative has become trustee of the estate assets.4 Payment of the estate debts, or the setting aside of assets for distribution to beneficiaries by a personal representative who has decided that the assets will not have to be used for the payment of debts, usually defines when the task of administration is complete.5 Once the personal representative has become constructive trustee by completing the tasks of administration, he or she can exercise only the powers of a trustee over the assets concerned, not the powers of a personal representative.6 Notes 1 Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] ALR 803; BC6400550 ; Eastbourne Mutual Building Society v Hastings Corp [1965] 1 All ER 779; [1965] 1 WLR 861 ; Cameron v Murdoch [1983] WAR 321 at 343 (upheld on appeal to the Privy Council: Cameron v Murdoch (1986) 63 ALR 575; 60 ALJR 280 ); Estate of Simmons (1990) 56 SASR 1 at 9-12 ; Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; 96 ALR 327; 64 ALJR 651; BC9002922 ; Gonzales v Claridades (2003) 58 NSWLR 211 at [19]; [2003] NSWCA 227; BC200304834 ; Barns v Barns (2003) 214 CLR 169 at [50]; 196 ALR 65; [2003] HCA 9; BC200300694 ; Romano v Romano [2004] NSWSC 775; BC200405446 .2 Pagels v MacDonald (1936) 54 CLR 519 at 526; [1936] ALR 224; (1936) 10 ALJR 36a per Latham CJ ; McCaughey v Cmr of Stamp Duties (NSW) (1945) 46 SR (NSW) 192 at 209; 62 WN (NSW) 230 ; Perpetual Trustee Co Ltd v Cmr of Stamp Duties [1960] NSWR 366; [1960] 61 SR (NSW) 333 at 343, 345 ; Taylor v DCT (Cth) (1969) 123 CLR 206; 43 ALJR 237; 1 ATR 97; BC6900680 (the executors had consented to transmission, and the transmission application had been signed by the devisee but not registered: held that the executors had distributed the asset); Lamb v Lamb [1976] 1 NZLR 501 ; Re Roberts (1983) 20 NTR 13; (1983) 70 FLR 158
; Re Whitchurch [1990] VR 719 ; In the Estate of Fryer; Stokes v Churchill (1994) NSW ConvR 55-694; BC9302342; Sawiak v The Public Trustee (unreported, WASC, Murray J, 3 September 1993, BC9301429).3 Pagels v MacDonald (1936) 54 CLR 519 at 526; [1936] ALR 224; (1936) 10 ALJR 36a per Latham CJ ; Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] ALR 803; BC6400550 ; Estate of Just (No 2) (1974) 7 SASR 515 at 523-524 .4 Estate of Just (No 2) (1974) 7 SASR 515 .5 In the Estate of Fryer; Stokes v Churchill (1994) NSW ConvR 55-694; BC9302342; upheld in Romano v Romano [2004] NSWSC 775; BC200405446 ; Exception Holdings Pty Ltd (In Liq) v Albarran (2005) 223 ALR 487; 23 ACLC 1270; [2005] NSWSC 677; BC200504875 . 6 Hardiman v Beale (1956) 58 WALR 20 at 25 . As to the full range of these powers generally see trusts [430-4335]-[430-5000]. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4455] Powers exercisable during the performance of executorial duties Beneficiaries under a will or an estate do not attain any enforceable interest in any asset of the estate until the personal representative has finalised the executorial or administrative duties to the point where the asset is, or can be, released for the purposes of the trusts directed for it.1 Accordingly during that period, each asset then being held free of those trusts, the personal representative has, and is able to exercise, the same rights and powers as the deceased held in respect of it.2 As a result, the personal representative may permit a surviving spouse or family of the deceased, or a beneficiary, to continue to reside in the family home on an interim basis,3 and the executor or administrators right to exercise a power of sale for the purposes of administration4 is universally recognised.5 Notes 1 As to personal representative and trustee roles see [395-4450]. See also trusts [430-50].2 As to the interest of the personal representative regarding devolved property see [395-4015].3 Burke v Dawes (1938) 59 CLR 1; [1938] ALR 135; (1938) 11 ALJ 524 (the beneficiary was, under the will, a life tenant of a house forming part of the estate; because the house had never been released from the executorial duties, the beneficiarys occupation rights were those of a tenant at will, rather than those of an equitable life tenant). This power has been affirmed by statute in (TAS) Administration and Probate Act 1935 s 42(1); (VIC) Administration and Probate Act 1958 s 48(1).4 As to power of sale see [395-4475].5 As to power of sale see [395-4475].
Source
[Halsbury's Laws of Australia]
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(3) TRUSTS AND POWERS OF THE PERSONAL REPRESENTATIVE
(A) General The paragraph below is current to 28 July 2011 [395-4450] Personal representative can become trustee During the administration of the estate, all the legal and beneficial interests in the estate assets vest in the executor or administrator, and the beneficiaries do not have any interest in the assets themselves however, what they do have is a chose in action (personal right) against the personal representative.1 The task of the personal representative is to administer the estate according to law, and once he or she has completed his or her duties of administration (apart from finally transferring the assets to beneficiaries or placing them in the hands of trustees) the personal representative holds the assets concerned as constructive trustee for the beneficiaries2 and, depending on the terms of the will, the equitable interests in the assets themselves vest in the beneficiaries.3 The crucial moment when the personal representative becomes constructive trustee and interests in the assets themselves vest in beneficiaries is defined by when the assets have been set aside for the beneficiary by the personal representative, or when the personal representative has assented to the trusts of the will, or when the personal representative has become trustee of the estate assets.4 Payment of the estate debts, or the setting aside of assets for distribution to beneficiaries by a personal representative who has decided that the assets will not have to be used for the payment of debts, usually defines when the task of administration is complete.5 Once the personal representative has become constructive trustee by completing the tasks of administration, he or she can exercise only the powers of a trustee over the assets concerned, not the powers of a personal representative.6 Notes 1 Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] ALR 803; BC6400550 ; Eastbourne Mutual Building Society v Hastings Corp [1965] 1 All ER 779; [1965] 1 WLR 861 ; Cameron v Murdoch [1983] WAR 321 at 343 (upheld on appeal to the Privy Council: Cameron v Murdoch (1986) 63 ALR 575; 60 ALJR 280 ); Estate of Simmons (1990) 56 SASR 1 at 9-12 ; Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; 96 ALR 327; 64 ALJR 651; BC9002922 ; Gonzales v Claridades (2003) 58 NSWLR 211 at [19]; [2003] NSWCA 227; BC200304834 ; Barns v Barns (2003) 214 CLR 169 at [50]; 196 ALR 65; [2003] HCA 9; BC200300694 ; Romano v Romano [2004] NSWSC 775; BC200405446 .2 Pagels v MacDonald (1936) 54 CLR 519 at 526; [1936] ALR 224; (1936) 10 ALJR 36a per Latham CJ ; McCaughey v Cmr of Stamp Duties (NSW) (1945) 46 SR (NSW) 192 at 209; 62 WN (NSW) 230
; Perpetual Trustee Co Ltd v Cmr of Stamp Duties [1960] NSWR 366; [1960] 61 SR (NSW) 333 at 343, 345 ; Taylor v DCT (Cth) (1969) 123 CLR 206; 43 ALJR 237; 1 ATR 97; BC6900680 (the executors had consented to transmission, and the transmission application had been signed by the devisee but not registered: held that the executors had distributed the asset); Lamb v Lamb [1976] 1 NZLR 501 ; Re Roberts (1983) 20 NTR 13; (1983) 70 FLR 158 ; Re Whitchurch [1990] VR 719 ; In the Estate of Fryer; Stokes v Churchill (1994) NSW ConvR 55-694; BC9302342; Sawiak v The Public Trustee (unreported, WASC, Murray J, 3 September 1993, BC9301429).3 Pagels v MacDonald (1936) 54 CLR 519 at 526; [1936] ALR 224; (1936) 10 ALJR 36a per Latham CJ ; Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] ALR 803; BC6400550 ; Estate of Just (No 2) (1974) 7 SASR 515 at 523-524 .4 Estate of Just (No 2) (1974) 7 SASR 515 .5 In the Estate of Fryer; Stokes v Churchill (1994) NSW ConvR 55-694; BC9302342; upheld in Romano v Romano [2004] NSWSC 775; BC200405446 ; Exception Holdings Pty Ltd (In Liq) v Albarran (2005) 223 ALR 487; 23 ACLC 1270; [2005] NSWSC 677; BC200504875 . 6 Hardiman v Beale (1956) 58 WALR 20 at 25 . As to the full range of these powers generally see trusts [430-4335]-[430-5000]. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4455] Powers exercisable during the performance of executorial duties Beneficiaries under a will or an estate do not attain any enforceable interest in any asset of the estate until the personal representative has finalised the executorial or administrative duties to the point where the asset is, or can be, released for the purposes of the trusts directed for it.1 Accordingly during that period, each asset then being held free of those trusts, the personal representative has, and is able to exercise, the same rights and powers as the deceased held in respect of it.2 As a result, the personal representative may permit a surviving spouse or family of the deceased, or a beneficiary, to continue to reside in the family home on an interim basis,3 and the executor or administrators right to exercise a power of sale for the purposes of administration4 is universally recognised.5 Notes 1 As to personal representative and trustee roles see [395-4450]. See also trusts [430-50].2 As to the interest of the personal representative regarding devolved property see [395-4015].3 Burke v Dawes (1938) 59 CLR 1; [1938] ALR 135; (1938) 11 ALJ 524 (the beneficiary was, under the will, a life tenant of a house forming part of the estate; because the house had never been released from the executorial duties, the beneficiarys occupation rights were those of a tenant at will, rather than those of an equitable life tenant). This power has been affirmed by statute in (TAS) Administration and Probate Act 1935 s 42(1); (VIC) Administration and Probate Act 1958 s 48(1).4 As to power of sale see [395-4475].5 As to power of sale see [395-4475].
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(C) Investment The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4465] Personal representatives duty in equity In common with all trustees, a personal representative has a general duty at equity to make the estate productive for the benefit of the beneficiaries,1 and may be held personally liable for any loss to the estate arising from breach of that duty.2 It has been suggested that (subject to the terms of the trust instrument) trust money should not be left uninvested for more than six months.3 Invest, in the context of the power held by a trustee, means to apply money in the purchase of some property from which profit or interest is expected, and which property is purchased in order to be held for the sake of the income which it will yield.4 Unless expressly excused by the will, investments must carry interest5 and be made on the security of property of adequate value.6 Due diligence obligations imposed upon trustees by statute do not modify these principles.7 Notes 1 As to the duty to make the estate productive see [395-4195]. See also trusts [430-4490].2 As to the duty to make the estate productive see [395-4195].3 Cann v Cann (1884) 51 LT 770; 33 WR 40.4 Re Wragg; Wragg v Palmer [1919] 2 Ch 58; [1918-19] All ER Rep 233 . See also Estate of Graham (decd),Re (2009) 105 SASR 95; (2009) 265 LSJS 191; [2009] SASC 278; BC200908138 . See generally trusts [430-4510] note 1.5 Khoo Tek Keong v Chng Joo Tuan Neoh (decd) [1934] AC 529; (1934) 152 LT 53 .6 Khoo Tek Keong v Chng Joo Tuan Neoh (decd) [1934] AC 529; (1934) 152 LT 53 . It is not to the point that the testator was in the habit of making unsecured loans: Khoo Tek Keong v Chng Joo Tuan Neoh (decd) [1934] AC 529 at 535-6; (1934) 152 LT 53 .7 (ACT) Trustee Act 1925 s 14B (NT) Trustee Act 1893 s 7(1) (NSW) Trustee Act 1925 s 14B(1) (QLD) Trusts Act 1973 s 23 (SA) Trustee Act 1936 s 8(1) (TAS) Trustee Act 1898 s 9(1) (VIC) Trustee Act 1958 s 7(1) (WA) Trustees Act 1962 s 19(1).
The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4470] Powers pursuant to statute All jurisdictions have enacted comprehensive legislation dealing with the powers of trustees1 to invest trust property. With certain exceptions and qualifications, trustees have a discretionary power to invest in any class of investment,2 subject to a due diligence obligation.3 The trustee becomes personally liable for losses arising from a breach of that obligation.4 All investments must be reviewed at least annually, 5 and may be varied at any time.6 Tasmania also makes specific provision authorising investment of the residue of the estate of a person who dies wholly or partly intestate, pending completion of administration, or during the minority of any beneficiary or the subsistence of any life interest.7 Notes 1 The legislation of each jurisdiction includes personal representatives of deceased persons in the definition of trustee for this purpose see [395-4450].2 (ACT) Trustee Act 1925 s 14 (NT) Trustee Act 1893 s 5. (NSW) Trustee Act 1925 ss 14-14F. (SA) Trustee Act 1936 s 6 (TAS) Trustee Act 1898 s 6. As to the investment of the residuary estate of an intestate see also (TAS) Administration and Probate Act 1935 s 33(3). (VIC) Trustee Act 1958 s 5. As to the investment of the residuary estate of an intestate see also (VIC) Administration and Probate Act 1958 s 38(3). (QLD) Trusts Act 1973 s 21 (unless expressly forbidden by the instrument creating the trust). For matters to which a trustee must have regard in exercising power of investment: ibid s 24(1). (WA) Trustees Act 1962 s 17 As to the detail, nature and effect of this legislation and the qualifications and exceptions which pertain to it see trusts [430-4520], [430-4525], [430-4545]-[430-4640]. 3 See trusts [430-4545]-[430-4555].4 See trusts [430-4545], [430-4555].5 See trusts [4304545].6 See trusts [430-4545].7 (TAS) Administration and Probate Act 1935 s 33(3).
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(D) Powers to Alienate and Charge The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4475] Power of sale of estate property Executors are invested with a power to sell the estates personal property1 and real property2 for the purpose3 of raising sufficient funds to meet the obligations of administration, that is, to pay all debts, funeral and testamentary expenses and to meet pecuniary legacies.4 Once the administration is complete, or is complete as to one or more assets, the executor must hold the remaining assets, or that or those assets, on the trusts of the will5 and any power to sell must be found elsewhere,6 if it is to be found at all. Administrators, in respect of wholly or partly intestate estates, have a general power of sale of all estate property for the purposes of administration and distribution.7 In some jurisdictions,8 the court may make orders relating to the time and mode of any sale of real estate of an intestate person, or the letting or management of that real estate pending sale.9 Except where statute authorises to the contrary,10 any agreement for sale of estate property entered into by fewer than all executors or administrators is not valid.11 Notes 1 The personal representatives power to deal with estate personalty is sourced in the general law, pursuant to which an executor has absolute power to dispose of any and all the personal estate of a testator at any time before he assents in relation to it see Nugent v Gifford (1738) 1 Atk 463; 26 ER 294 . See, however, (TAS) Administration and Probate Act 1935 s 33(1); (VIC) Administration and Probate Act 1958 s 38(1) which direct that, where a person dies intestate, without special reason, personal chattels may not be sold, and reversionary interests may not be sold until they fall into possession.2 (ACT) Administration and Probate Act 1929 ss 41(2), 43, 50(1)(a) (NT) Administration and Probate Act 1969 ss 54(2), 60, 80(1)(a) (NSW) Probate and Administration Act 1898 ss 46(2), 48; (NSW) Conveyancing Act 1919 s 153(1)(b) (QLD) Succession Act 1981 s 49(1); (QLD) Trusts Act 1973 s 32(1)(a). (SA) Administration and Probate Act 1919 s 51(1) (TAS) Administration and Probate Act 1935 s 39(1), 39(2)
(VIC) Administration and Probate Act 1958s 44 (WA) Administration Act 1903 s 12. 3 Nevertheless, a purchaser is not required to verify that the proceeds have been applied by the executor for that purpose, and is discharged by the executors receipt: McLeod v Drummond (1810) 17 Ves 152; 34 ER 59 . See also Livingston v Cmr of Stamp Duties (Qld) (1960) 107 CLR 411 at 424-5; [1961] Qd R 118; [1961] ALR 534; (1960) 34 ALJR 425 per Dixon CJ. This protection has been affirmed by statute in some jurisdictions: (ACT) Administration and Probate Act 1929 s 50(3) (NT) Administration and Probate Act 1969 s 80(6) (NSW) Conveyancing Act 1919 s 153(3) (SA) Administration and Probate Act 1919 s 51(2). There are no equivalent provisions in the other jurisdictions. 4 For an example of judicial confirmation of the existence of a general power of sale of a particular asset where executorial duties are incomplete in respect of it: In the Estate of Fryer; Stokes v Churchill (1994) NSW ConvR 55-694; BC9302342.5 In particular, once administration is complete in respect of an asset, a beneficiary presently entitled to that asset is entitled to call for it: Saunders v Vautier (1841) Cr & Ph 240; [1835-42] All ER Rep 58; (1841) 10 LJ Ch 354; 41 ER 482 ; Queen Street Hotels Pty Ltd v Byrne (1980) CLC 40-611; Turner v Noyes (1904) 20 WN (NSW) 266. See generally trusts [430-735]. These rights to call for the property in appropriate circumstances are expressly preserved in: (TAS) Administration and Probate Act 1935 s 39(2) (VIC) Administration and Probate Act 1958 s 44(2). There are no equivalent provisions in the other jurisdictions. As to assents generally see [395-4900]. 6 For details of the law relating to the power of trustees more generally to sell trust property see trusts [430-4240], [430-4680]-[430-4765].7 (ACT) Administration and Probate Act 1929 ss 41(2), 50(1)(a) (power to sell for the purposes of administration), 50(1)(b) (power to sell for the purposes of distribution or division) (NT) Administration and Probate Act 1969 ss 54(2), 80(1)(a) (power to sell for the purposes of administration), 80(1)(b) (power to sell for the purposes of distribution or division) (NSW) Probate and Administration Act 1898 s 46(2); (NSW) Conveyancing Act 1919 s 153(1)(a) (power to sell for the purposes of administration), 153(1)(b) (power to sell for the purposes of distribution or division) (QLD) Trusts Act 1973s 32(1)(a). The property may also be disposed of by way of exchange for another of like nature and of like or better tenure, in the State: ibid s 32(1)(b). (SA) Administration and Probate Act 1919 s 72C(2) (TAS) Administration and Probate Act 1935 s 33(1) (VIC) Administration and Probate Act 1958 s 38(1) (WA) Administration Act 1903 ss 10(3), 12.
8 (ACT) Administration and Probate Act 1929 s 51(a), 51(b). (NT) Administration and Probate Act 1969 s 82(a) (NSW) Probate and Administration Act 1898 s 57(a), 57(b) (SA) Administration and Probate Act 1919 s 47(a), 47(b). There are no equivalent provisions in the other jurisdictions. 9 These sections do not permit the court to authorise an exchange of lands: In the Estate of Howard (1907) 245 WN (NSW) 125. Compare, however, (QLD) Trusts Act 1973 s 32(1)(b). See also note 7 above.10 Statutory power exists for fewer than all executors or administrators to sell, with the approval of the court, as follows: (ACT) Administration and Probate Act 1929 s 50(5) (NT) Administration and Probate Act 1969 s 80(7) (NSW) Conveyancing Act 1919 s 153(4). There are no equivalent provisions in the other jurisdictions. 11 Re Fielding; Fielding v Fielding [1946] VLR 153; [1946] ALR 270 ; Neill v Hewens (1953) 89 CLR 1; 54 SR (NSW) 65; 71 WN (NSW) 37 . See, however, Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177; [1963] ALR 487; (1962) 36 ALJR 167 . The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4480] Power to postpone sale of estate property At equity, personal representatives and other trustees holding property upon trust for sale were required to sell that property in the best interests of the estate within a reasonable time and those merely having a power of sale1 were invested with a discretion as to whether and when they should exercise the power.2 In respect of all estate property, personal representatives now have statutory power to either postpone such a sale,3 or seek the courts approval to postpone. 4 In most jurisdictions, and subject to the terms of the will, the statutory power to postpone applies whether the power or duty to sell was given by statute or by will.5 In some jurisdictions, where postponement is ordered against the wishes of a trustee, that trustee may be relieved of that management by having the court appoint a substitute trustee for the duration of the postponement; on such an order being made, the substitute is required to attend to the management of the property pending the sale.6 Notes 1 As to the difference between a trust for sale and a power of sale see trusts [430-4695]. The distinction is often a matter of construction see, for example, King v Berndt (1902) 27 VLR 519; 23 ALT 149 (a testamentary direction to sell realty with all convenient speed was held to confer a discretion to postpone sale in order to avoid a sacrifice sale, but required the trustees, if subsequently challenged, to demonstrate that the interests of the beneficiaries were not thereby prejudiced).2 In the case of personal representatives, this power is, however, limited and breach may expose the personal representative to personal liability for any loss occasioned by the
postponement: In the Estate of Keenan (1899) 20 LR (NSW) B & P 10.3 (ACT) Trustee Act 1925 s 27B(1) (NSW) Trustee Act 1925 s 27B(1). A personal representative is a trustee for sale by virtue of the definition of that expression in ibid s 5. (QLD) Trusts Act 1973 s 32(1)(c). Where the trust property is land or an authorised investment, the trustee is protected from liability for postponement, even where it extends beyond the period during which the power of sale remains valid (ibid s 32(4)), but the protection does not apply in the case of property that is of a wasting or speculative nature: ibid s 32(4). (TAS) Administration and Probate Act 1935s 33(1). The power relates only to property in respect of which the deceased died wholly or partly intestate, and subject to any provisions in any will: ibid s 33(7). (VIC) Administration and Probate Act 1958 s 38(1). The power relates only to property in respect of which the deceased died wholly or partly intestate, and subject to any provisions in any will: ibid s 38(7). (WA) Trustees Act 1962 s 27(1)(c) (in the case of property which is of a wasting or speculative nature, sale may be postponed for no longer than is reasonably necessary to permit its prudent realisation). See trusts [430-4770]-[430-4775] (statement of the law relating to postponement of sale of trust property). 4 (ACT) Administration and Probate Act 1929 s 51A(1)(a) (postponement may be ordered for such period as the court thinks fit) (NT) Administration and Probate Act 1969 s 83(1)(a), 83(3) (postponement may be ordered for such period as the court thinks fit) (SA) Administration and Probate Act 1919 s 64(1)(a) (postponement may be ordered for such period as the court thinks expedient). 5 (ACT) Trustee Act 1925 s 27B(1) (NSW) Trustee Act 1925 s 27B(1) (QLD) Trusts Act 1973 s 32(4). The power to postpone only applies, however, in respect of a trust or direction for sale of land or an authorised investment: ibid s 32(4). (VIC) Trustee Act 1958 s 13(5). The power to postpone only applies to trusts for sale: ibid s 13(5). (WA) Trustees Act 1962 s 27. 6 (ACT) Administration and Probate Act 1929 s 53 (NT) Administration and Probate Act 1969 s 85 (NSW) Probate and Administration Act 1898 s 59. There are no equivalent provisions in the other jurisdictions. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes
Annotations [395-4485] Power to charge or mortgage estate property The power of a personal representative to deal with estate personalty at any time prior to assent1 includes the power to mortgage or pledge that personalty,2 and any such mortgage may include a power of sale. 3 This power to charge4 has been extended generally by statute to apply equally to estate realty.5 In most jurisdictions, personal representatives have express statutory power, for the purposes of administration,6 to mortgage estate real property.7 In the Australian Capital Territory and the Northern Territory, an administrator on intestacy8 may, on the security of the whole or any part of the estate, raise any sum required to pay the whole or any part of the share of the deceaseds partner in the estate of the deceased.9 Notes 1 As to this power see [395-4475] note 2.2 Mead v Lord Orrery (1745) 3 Atk 235; 26 ER 937 ; Scott v Tyler (1788) 2 Dick 712; 21 ER 448 at 453 per Lord Thurlow; Earl Vane v Rigden (1870) LR 5 Ch App 663.3 Russell v Plaice (1854) 18 Beav 21; 52 ER 9 ; Cruickshank v Duffin (1872) LR 13 Eq 555.4 See trusts [430-4820]-[430-4845] (power of trustees generally to mortgage or charge trust property).5 (ACT) Administration and Probate Act 1929 s 43 (the provision is expressed to apply to executors) (NT) Administration and Probate Act 1969 s 60 (NSW) Probate and Administration Act 1898 s 48 (the provision is expressed to apply to executors) (QLD) Succession Act 1981 s 49(1) (SA) Administration and Probate Act 1919 s 46(2) (TAS) Administration and Probate Act 1935 s 5(1) (VIC) Administration and Probate Act 1958 s 14 (WA) Administration Act 1903 s 12. 6 For the meaning of this expression see [395-4475] note 7.7 (ACT) Administration and Probate Act 1929 ss 41(2), 50(1)(a) (NT) Administration and Probate Act 1969 ss 54(2), 80(1)(a) (NSW) Probate and Administration Act 1898 s 46(2); (NSW) Conveyancing Act 1919 s 153(1)(a) (TAS) Administration and Probate Act 1935 s 39(1)(a) (the power is expressed to subsist for the purposes of administration, and until the period of distribution arrives) (VIC) Administration and Probate Act 1958 s 44(1)(a) (raise money with or without a power of sale or charge). 8 (ACT) Administration and Probate Act 1929 s 50(1)(d) (NT) Administration and Probate Act 1969 s 80(4). 9 (ACT) Administration and Probate Act 1929 s 50(1)(d). (NT) Administration and Probate Act 1969 s 80(1)(d) (this provision extends to the share in the intestate estate of an eligible de facto partner).
The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4490] Power to lease estate property All jurisdictions confer upon personal representatives a statutory power1 of leasing certain property which forms part of the estate of the deceased.2 In some jurisdictions, executors and administrators have authority to lease any real estate held in possession for a term not exceeding three years.3 With the leave of the court, this power may be exercised by fewer than all the personal representatives.4 The court also has authority to direct proceedings with regard to the letting of estate property until it is sold.5 In Queensland and Western Australia, trustees may let or sublet any trust property for terms not exceeding one year, from year to year or any lesser period, including at will.6 They may also grant a building lease or sublease for a period not exceeding 30 years,7 or any other type of lease or sub-lease for specified lesser periods.8 In Tasmania and Victoria, personal representatives have the powers of leasing which are conferred upon trustees for sale.9 In South Australia, personal representatives have the power of leasing vested in trustees generally.10 In the case of land devolving upon an executor or administrator, the court may direct proceedings with regard to the letting and management of estate property until it is sold.11 Notes 1 The equitable right of a personal representative to deal with estate personalty (see [395-4475] note 2) includes power to lease chattels real and therefore (by virtue of the legislation noted at [395-4485] note 5) realty in the hands of the personal representative: Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177 at 183; [1963] ALR 487; (1962) 36 ALJR 167 . However, in equity, leasing was an exceptional mode of dealing with estate assets, and a lessee always took subject to the question whether the grant of the lease was the best way of administering the assets: Oceanic Steam Navigation Co v Sutherberry (1880) 16 Ch D 236 at 243; 50 LJ Ch 308; 43 LT 743 per Jessel MR , CA. It was held in Howling v Kristofferson (unreported, NSWSC Eq D, Cohen J, 2911 of 1992, 14 October 1992, BC9201556) that the executor is under a duty to let real property (as part of the duty to ensure that there is no waste of assets) where there is going to be a delay in selling or distributing that property, so as to realisze as much from the property as is reasonable.2 Any purported exercise of the power of leasing before the property to be leased is vested in the executor or administrator is void: The Daily Pty Ltd v White (1946) 63 WN (NSW) 262 ; Booth v Public Trustee [1954] VLR 183; [1954] ALR 420 . Similarly, an unproven executor cannot give an effective notice to quit in jurisdictions where the estate does not devolve upon the executor until grant (see [395-4005]): Re Smith; Ex parte Callan [1968] 1 NSWR 443; (1968) 87 WN (Pt 1) (NSW) 595 . See trusts [430-4780]-[430-4815] (power of trustees generally to lease trust property).3 (ACT) Administration and Probate Act 1929 s 50(1)(c) (NT) Administration and Probate Act 1969 s 80(1)(c) (NSW) Conveyancing Act 1919 s 153(1)(c). 4 (ACT) Administration and Probate Act 1929 s 50(4) (NT) Administration and Probate Act 1969 s 80(7) (NSW) Conveyancing Act 1919 s 153(4).
5 (ACT) Administration and Probate Act 1929 s 51(b) (NT) Administration and Probate Act 1969 s 82(b) (NSW) Probate and Administration Act 1898 s 57(b). These provisions do not confer a power to authorise the leasing of estate property, but merely confer jurisdiction to give directions as to the exercise of any such power sourced elsewhere: In the Estate of Corrigan (1925) 42 WN (NSW) 28 ; Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177; [1963] ALR 487; (1962) 36 ALJR 167 . 6 (QLD) Trusts Act 1973 s 32(1)(d) (extends to authorising share-farming agreements for periods not exceeding one year) (WA) Trustees Act 1962 s 27(1)(d). 7 (QLD) Trusts Act 1973 s 32(1)(e)(i) (WA) Trustees Act 1962 s 27(1)(e)(i). 8 (QLD) Trusts Act 1973 s 32(1)(e)(ii) (leases may be for periods not exceeding 21 years) (WA) Trustees Act 1962 s 27(1)(e)(ii) (leases may be for periods not exceeding 10 years). 9 (TAS) Administration and Probate Act 1935 s 39(1)(b). See also (TAS) Settled Land Act 1884 ss 3(a), 40A. (VIC) Administration and Probate Act 1958 s 44(1)(b); (VIC) Property Law Act 1958 s 35(1) (powers of leasing); (VIC) Settled Land Act 1958 (powers of management). 10 (SA) Trustee Act 1936 s 25C.11 (SA) Administration and Probate Act 1919 s 47(b). This section is otherwise in similar terms to those mentioned in note 5 above and, on the authorities there mentioned, probably does not confer on the court a substantive power to authorise leases of estate realty. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4495] Partition A testamentary direction to distribute estate property confers a power of sale.1 Where, however, a distribution of property is made in specie to two or more estate beneficiaries, each jurisdiction confers authority for partition of that property between those beneficiaries.2 In most jurisdictions, statutory provision exists for the court to order or direct proceedings with regard to the expediency and mode of partition between beneficiaries under deceased estates,3 to appoint arbitrators to effect summary partition by report and award4 and for charges for payment of money by way of equality.5 In the other jurisdictions, personal representatives may proceed in accordance with the general trustee provisions for partition.6 In New South Wales, where a deceased intestate is at death entitled to a share in real estate with others, a spouse or qualifying de facto taking an interest in that share upon intestacy7 must accept the value of that share in lieu of partition if the other or others with whom the deceased held that real estate all require that course to be adopted.8 At common law, the executor of a deceased co-owner of real estate can agree with the surviving co-owners for partition of that real estate.9
Notes 1 Altson v Equity Trustees Executors and Agency Co Ltd (1912) 14 CLR 341 at 345 per Griffiths CJ, at 346 per Barton J; 18 ALR 316 ; Pagels v MacDonald (1936) 54 CLR 519; [1936] ALR 224; (1936) 10 ALJR 36a .2 The general law in each State jurisdiction (there are no equivalent provisions in the Australian Capital Territory or the Northern Territory) provides for partition of property between any co-owners, whether or not they are beneficiaries under a deceased or other trust estate. For a complete treatment of these provisions and statutory trusts for sale see real property [355-11685].3 (ACT) Administration and Probate Act 1929 s 51(d) (NT) Administration and Probate Act 1969 s 82(d) (NSW) Probate and Administration Act 1898 s 57(d) (SA) Administration and Probate Act 1919 s 47(d). There are no equivalent provisions in Western Australia. 4 (ACT) Administration and Probate Act 1929 s 52(1), 52(2) (NT) Administration and Probate Act 1969 s 84(1), 84(2) (NSW) Probate and Administration Act 1898 s 58(1), 58(2) (SA) Administration and Probate Act 1919 s 48 (the arbitrators may effect the partition and exercise the powers of commissioners acting under a decree for partition) (WA) Administration Act 1903 s 19(1), 19(2) (the court may appoint either arbitrators or the Principal Registrar to effect the partition). 5 (ACT) Administration and Probate Act 1929 s 52(4) (NT) Administration and Probate Act 1969 s 84(4) (NSW) Probate and Administration Act 1898 s 58(4) (WA) Administration Act 1903 s 19(4). There are no equivalent provisions in South Australia. 6 (QLD) Trusts Act 1973 s 32(1)(b) (TAS) Settled Land Act 1884 ss 3(c), 40A (VIC) Property Law Act 1958 s 35(3)(a). 7 As to the shares to be taken by a surviving spouse or de facto partner upon the death of an intestate see [395-1720]-[395-1785].8 (NSW) Probate and Administration Act 1898 s 53. See also (NSW) Succession Act 2006 s 115. There are no equivalent provisions in the other jurisdictions. 9 Re Kemnal and Stills Contract [1923] 1 Ch 293 .
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(E) Power to Carry on Deceaseds Business The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation [395-4500] Overview In the absence of an express and sufficient power in the deceaseds will, 1 a personal representative has authority at common law to carry on a business conducted by the deceased at the time of death only to the extent and for the period essential to enable that business to be sold as a going concern and to realise the best available price.2 With that qualification, the business must be sold as soon as possible.3 Personal representatives who carry on a business of the deceased without authority or power to do so will be debarred from entitlement to commission in respect of administration,4 and may be denied their right of indemnity from the estate for the debts incurred in carrying on the business.5 Legislation in some jurisdictions, now permits the court to authorise a personal representative to carry on a deceaseds business subject to such conditions and for such periods as it may think fit and, for that purpose, to use property of the estate or specified parts of it.6 In the absence of statutory authority to do so, the court has no power to authorise a personal representative to carry on the deceaseds business.7 Notes 1 Kirkman v Booth (1848) 11 Beav 273; 50 ER 821 (there ought to be the most distinct and positive authority and direction). See also Hagan v Waterhouse (1991) 34 NSWLR 308 at 339 per Kearney J . It has, however, been held that testamentary power to postpone the sale and conversion of a deceaseds estate is sufficient for the purpose: Re Crowther; Midgley v Crowther [1895] 2 Ch 56; [1895-99] All ER Rep 1208; (1895) 72 LT 762 . See also Re Smith; Arnold v Smith [1896] 1 Ch 171; [1895-99] All ER Rep 1175 . The court will not compel a personal representative to exercise a testamentary power to carry on a deceaseds business: Re F [1941] VLR 6; [1941] ALR 20 . See trusts [430-4880]-[430-4900] (power of trustees to carry on the business of a settlor).2 Re Chancellor; Chancellor v Brown (1884) 26 Ch D 42; 51 LT 33; 32 WR 465 ; Union Trustee Co of Australia Ltd v Bartlam (1948) 76 CLR 492; [1948] AC 495; [1949] VLR 132; [1948] 2 ALR 325 ; Re Hammond; Hammond v Hammond (1903) 3 SR (NSW) 270; 20 WN (NSW) 123 ; Re Morish [1939] SASR 305 . This authority may not be available in the case of a business which was a losing concern at the date of death, or where immediate sale would not be likely to create a loss to the estate see Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319; [1946] ALR 50; (1945) 19 ALJ 380 . However, if the personal representative is validly
CLR 319; [1946] ALR 50; (1945) 19 ALJ 380 . However, if the personal representative is validly carrying on the deceaseds business, the rights of creditors of the business are not affected by the fact that a grant of representation has not yet been made: Re Estate of Spencer (decd); Ex parte Vincent (1962) 19 ABC 90 .3 Re Kerrigan; National Trustees Executors and Agency Co of Australasia Ltd v Kerrigan [1916] VLR 516 ; Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319 at 324 per Latham CJ, at 334 per Dixon J; [1946] ALR 50; (1945) 19 ALJ 380 . The fact that the next-of-kin object to the deceaseds business being sold does not necessarily entitle the administrator to carry on that business: Kelly v JT & J Toohey Ltd (1900) 16 WN (NSW) 173 .4 This is so, even if the estate has benefited from the unauthorised business see In the Will of Matheson (1887) 13 VLR 587 ; Re Walkers Will (1894) 6 QLJ 259; In the Will of White (1908) 8 SR (NSW) 582 ; Crout v Beissel [1909] VLR 207 ; Re Kerr; Kerr v Cock (1904) 24 NZLR 1 .5 Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319; [1946] ALR 50; (1945) 19 ALJ 380 . See also trusts [430-4890].6 (ACT) Administration and Probate Act 1929 s 51A(1)(b) (NT) Administration and Probate Act 1969 s 83(1)(b) (SA) Administration and Probate Act 1919 s 64(1)(b). 7 Re Herrods Estate [1902] St R Qd 245 . The paragraph below is current to 28 July 2011 [395-4505] Power given by deceaseds will Where power to carry on the deceaseds business is given by the will and in the absence of further authority, executors may for that purpose use only such assets of the estate as were used in that business by the deceased at the date of death.1 A power to carry on the deceaseds business implies a power to mortgage assets of the business for that purpose.2 Power to carry on a station business implies an obligation to make up exceptional stock losses out of corpus, and to maintain average carrying capacity out of income.3 Where joint executors, in that capacity, carry on the business of the deceased pursuant to a power in the will, that fact will not necessarily constitute them as partners.4 An executor of a deceased partner who, as directed by the will, permits estate assets to be continued to be used in the partnership business and continues to receive a share of the partnership profits, is not thereby constituted a member of the partnership.5 Notwithstanding that powers given to an executor by will are normally regarded as being annexed to the office and exercisable by the person holding that office,6 the powers given to an executor to carry on a testators business are not exercisable by an administrator appointed where the named executor renounces or does not, or cannot, obtain a grant.7 Notes 1 McWilliam v McWilliam (1870) 9 SCR (NSW) Eq 96.2 Southwell v Martin (1901) 1 SR (NSW) Eq 32 ; Re Hammond; Hammond v Hammond (1903) 3 SR (NSW) 270; 20 WN (NSW) 123 .3 Re Walker; Walker v Walker (1901) 1 SR (NSW) Eq 237 .4 Savage v Union Bank of Australia Ltd (1906) 3 CLR 1170 at 1181, 1186 sub nom Union Bank of Australia Ltd v Whitelaw [1906] VLR 711 sub nom Whitelaw v Union Bank of Australia Ltd (1906) 12 ALR 285 per Griffith CJ (this is so, notwithstanding that they may have complied with business name registration requirements of the jurisdiction).5 Brown v Fletcher (1884) 1 WN (NSW) 66. The executor is not a member of either the original partnership (which was dissolved by the death of the deceased) or of that created by the surviving partners continuing to carry on its business: Brown v Fletcher (1884) 1 WN (NSW) 66.6 Re De Sommery; Coelenbier v De Sommery [1912] 2 Ch 622 .7 Lambert v Rendle (1863) 3 New Rep 247. Similarly, where a testator who is, at the date of death, carrying on a business in partnership with another, and directs his or her executor to continue to carry on that business, and the executor renounces, an administrator with the will annexed has no authority to carry on this business once the partnership has been dissolved: Swan v Seal (1884)
10 VLR (E) 57 . The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4510] Particular professional businesses As part of the statutory regimes regulating the conduct of certain professional and other businesses conducted pursuant to statutory registrations, licences or permits, some jurisdictions include provisions authorising the continuance of those businesses by the licensees personal representatives after the licensees death.1 These powers are variously subject to conditions relating to duration, supervision and the extent of the personal representatives right to undertake the actual licensed work. Notes 1 Statutory example where a business may continue after death include: (NT) Architects Act 1963 s 26; (NT) Liquor Act 1978 s 47C (QLD) Pharmacy Business Ownership Act 2001 s 139E; (QLD) Liquor Act 1992 s 129(1)(d) (NSW) Liquor Act 2007 s 62 (SA) Legal Practitioner Act 1981 s 50 (TAS) Veterinary Surgeons Act 1987 s 24 (VIC) Estate Agents Act 1980 s 31E(1)(a); (VIC) Liquor Control Reform Act 1998 s 80(1)(a) (permits application for endorsement of name on licence or permit); (VIC) Firearms Act 1996 s 84(2) (permits application for transfer of a dealers licence) (WA) Real Estate and Business Agents Act 1978 Sch; (WA) Auction Sales Act 1973 s 19(2) (3 months); (WA) Liquor Control Act 1988 s 86
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(F) Compromise The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation [395-4515] Compromise and compounding of debts due to the estate The trustee legislation in each jurisdiction authorises trustees in general1 to compromise or compound debts due by others to the trust.2 In the Australian Capital Territory, personal representatives of deceased estates are specifically permitted to accept compositions or security for debts, may allow time for payment of debts, to compromise, compound or arbitrate debts, and to document those arrangements.3 In South Australia, the court may permit a personal representative leave to postpone realisation of the estate for such period as the court thinks fit.4 Subject to that legislation, a personal representative is obliged5 to press for payment of debts due to the estate and, if payment is not made within a reasonable time, to enforce the debt by legal proceedings,6 unless that personal representative holds a well-founded belief that such action would be fruitless.7 If the personal representative declines to bring action, a beneficiary may be entitled to do so, by means of an administration suit.8 Notes 1 This includes personal representatives and trustees of deceased estates see [395-4450], especially [395-4450] note 4.2 For a detailed treatment of the law relating to this power see trusts [430-4975], [430-4980].3 (ACT) Administration and Probate Act 1929 s 68. Notwithstanding its specific application to personal representatives, this section is in similar terms to the corresponding provision applying to all trustees: (ACT) Trustee Act 1925s 49(1). The major difference is that the latter, but not the former, provision applies subject to any contrary intention in the trust instrument: ibid s 49(4).4 (SA) Administration and Probate Act 1919 s 64(1). A personal representative acting in conformity with such leave is protected from liability for any consequential loss arising, except for breach of trust, negligence or wilful default: ibid s 64(2).5 Where statute permits indulgence by a trustee, the trustee will only be excused personal liability for any consequential loss if the indulgence arises from the exercise of an active discretion, but not where it arises as a result of carelessness or supineness: Partridge v Equity Trustees Executors and Agency Co Ltd (1947) 75 CLR 149; [1947] ALR 552; (1947) 21 ALJR 321 ; National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1; [1940] VLR 199; [1940] ALR 86 .6 Re Brogden; Billing v Brogden (1888) 38 Ch D 546; [1886-90] All ER Rep 927; (1888) 59 LT 650 .7 Re Brogden; Billing v Brogden (1888) 38 Ch D 546; [1886-90] All ER Rep 927; (1888) 59 LT 650 .8 Re Atkinson (decd) [1971] VR 612 ; Middleton v ONeill (1943) 43 SR (NSW) 178; 60 WN (NSW) 101 ; Ramage v Waclaw (1988) 12 NSWLR 84 .
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(G) Payment of Estate Funds into Court The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4520] Right to pay into court All jurisdictions invest trustees generally1 with statutory power to pay trust funds into court.2 Potential costs penalties where payment-in is not the most appropriate course militate equally against personal representatives as against other trustees.3 In all jurisdictions except Queensland and South Australia, personal representatives have a further statutory alternative to payment into court of money held in trust for minors, namely the appointment of trustees for minors property.4 Statutory provisions in the Australian Capital Territory,5 the Northern Territory6 and New South Wales7 appear to empower the probate courts to make such orders as they think fit with reference to the distribution or application of any money which the personal representative may have in hand; these provisions have, however, been read down so as to apply only to ordering disbursement of the balance of funds shown by estate accounts (as filed) as being held for specific beneficiaries.8 Notes 1 This includes personal representatives and trustees of deceased estates see [395-4450], especially [395-4450] note 4.2 For a detailed treatment of the law relating to this power, the circumstances in which such a payment is and is not appropriate and the consequences of paying estate funds into court see trusts [430-3840]-[430-3850].3 See trusts [430-3845].4 As to appointment of trustees see [395-4680].5 (ACT) Administration and Probate Act 1929 s 61.6 (NT) Administration and Probate Act 1969 s 93.7 (NSW) Probate and Administration Act 1898 s 89.8 In the Will of Mossop (1905) 5 SR (NSW) 722 . See also In the Will of Rossitter (1905) 22 WN (NSW) 115 ; In the Estate of Kintzchler (1908) 25 WN (NSW) 40 (applications to approve plans of distribution of the estate). See, however, In the Estate of Cooney (decd) (1907) 7 SR (NSW) 632 (application of these sections to the distribution of funds held by the Public Trustee). The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation [395-4525] Certain funds held by administrators in South Australia Legislation in South Australia makes special provision in relation to property within its jurisdiction, held by an administrator1 of a deceased estate and belonging to any person who either is not of full age and consent, or is not resident in South Australia and does not have an agent or attorney there. Such administrators must transfer that property to the Public Trustee2 not later than one year after the
date of death or six months after realisation, whichever first occurs.3 The property is thereafter administered by the Public Trustee.4 A judge may dispense with the requirement, or modify its time requirements, if satisfied that it is beneficial or expedient to do so.5 If the court so directs, any such order has the effect of discharging the administrator and any surety from further responsibility regarding the property to which the order relates.6 The order may also be set aside.7 Notes 1 This encompasses every personal representative other than one to whom probate has been granted: (SA) Administration and Probate Act 1919 s 4 (definitions of administration and administrator), but excludes a limited company acting as administrator: ibid s 65(3).2 In South Australia, the usual administration bond required to support any application for a grant of letters of administration is entered into with the Public Trustee, rather than with the court as occurs elsewhere: see [395-3300], especially [395-3300] note 1.3 Ibid s 65(1).4 Ibid s 65(2), 65(2a).5 Ibid s 67(1).6 Ibid s 67(5). The court order may include an extension of time or other relief from the requirements of ibid s 65. See also notes 2 and 3 above.7 Ibid s 67(6).
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(H) Power to Delegate to Agents The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation [395-4530] General scope of the duty to act personally In common with all trustees,1 a personal representative to whom a grant of representation has been made is in broad terms required to act personally,2 however the law does recognise limited rights for trustees to delegate3 purely administrative and other functions4 and to employ solicitors and certain other agents.5 A personal representative is not bound by a testamentary direction to employ a specified solicitor, and the person named cannot enforce such a provision.6 Where a personal representative, to whom a grant has already been made, seeks to delegate performance of the substantive duties of the office of executor or administrator, that grant should
be revoked7 and a fresh, limited grant of administration made to an appropriate person. 8 The new grant may be of administration de bonis non administratis (also termed administration dbn),9 administration durante absentia,10 or administration durante dementia,11 as the circumstances may require. If delegation of the substantive duties of a trustee is sought,12 the proper course is to have a new trustee appointed.13 Where a nominated executor, who is unable to act and has not yet obtained a grant, seeks to have an attorney under power appointed to act in his or her stead, the proper course is for the attorney to seek a grant of administration with the will annexed,14 in the first instance. Notes 1 The expression trustee includes personal representatives and trustees of deceased estates: see [395-4450], especially [395-4450] note 2.2 See trusts [430-4175]-[430-4190] (nature and consequences of this duty).3 See trusts [430-4385]-[430-4485].4 If the delegation is proper in the circumstances, the personal representative continues to be entitled to indemnity out of the estate for the costs incurred by the delegate (Staniar v Evans (1886) 34 Ch D 470 at 477 per North J ), except where the personal representative could have done the work personally: In the Will of Campbell (1892) 11 NZLR 514 . See also trusts [430-4480]. Notwithstanding that a delegation is validly made, the personal representative at all times remains personally responsible for the performance of the trust obligations: see trusts [430-4175].5 See trusts [430-4385]-[430-4425].6 Foster v Elsley (1881) 19 Ch D 518; 51 LJ Ch 275; 30 WR 596 ; Shaw v Lawless (1838) 5 Cl & Fin 129; 7 ER 353 , HL; Finden v Stephens (1846) 2 Ph 142; 41 ER 896 .7 As to revocation of grants see [395-3420], [395-3425], [395-3435]. See also (TAS) Administration and Probate Act 1935 s 17. Revocation of the grant of probate is not required where a grant is made under this section, and the executor is unable to act while the limited grant is in force: ibid s 18.8 The desired delegate may, or may not, be an appropriate person. As to the persons to whom grants of administration may be made or should be made see [395-3065]-[395-3085], [395-3205].9 As to grants of administration dbn see [395-3200], [395-3205].10 As to grants of administration durante absentia see [395-3230]-[395-3245].11 As to grants of administration durante dementia see [395-3250].12 As to the difference between the functions of executor and administrator on the one hand, and those of trustees on the other, see [395-4450]. Where the administration duties are complete, appointment of a new executor or administrator is inappropriate: In the Estate of Dunn (decd) [1963] VR 165 . See also Mansour v Mansour (2009) 24 VR 498; [2009] VSC 177; BC200903832 .13 As to the appointment of new trustees see trusts [430-3290]-[4303420].14 As to the entitlement of the attorney under power of a nominated executor to seek a grant of administration with the will annexed see [395-3185]-[395-3195]. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4535] Power to appoint the Public Trustee jointly or in lieu Each jurisdiction makes various statutory provisions for a nominated executor, who has not renounced and has not yet obtained a grant, to appoint1 that jurisdictions Public Trustee2 or an authorised trustee company3 to obtain a grant either in conjunction with the executor or administrator, or in his or her stead4 and subject to any contrary directions in the will. Further, a person to whom a grant of probate or administration has been made may appoint the Public Trustee or an authorised trustee company to act in administration of the deceased estate either in conjunction with the executor or administrator, or in his or her stead.5 Notes
1 As to the right of the Public Trustee or its equivalent in each jurisdiction to elect to administer certain estates with or, in some instances, without a grant, see [395-3100]-[395-3115].2 As to the office of Public Trustee in each of the jurisdictions see [395-3100] note 1. As to the authority of the Public Trustee to obtain a grant in its own right see [395-3100]. As to its right to administer estates without a grant see [395-3105], [395-3110].3 As to authorised trustee companies see [395-3120]. As to their roles and remuneration see trusts [430-3085]-[430-3110].4 (ACT) Public Trustee Act 1985 ss 17, 18; (ACT) Trustee Companies Act 1947 ss 5(1)(a), 5(1)(b) (applications and authorisations in favour of a trustee company by persons entitled to a grant of probate, without leave being reserved to another person to come in and prove the will), 6(1)(a), 6(1)(b) (applications and authorisations in favour of a trustee company by one of several executors entitled to a grant), 7(1)(a), 7(1)(b) (applications and authorisations in favour of a trustee company where a person is entitled to a grant of administration with the will annexed), 8(1)(a), 8(1)(b) (applications and authorisations in favour of a trustee company by persons otherwise entitled to a general grant of administration on intestacy). Under each of these sections, paragraph (a) deals with joint applications for the grant, and paragraph (b) with authorisations to the trustee company to seek a grant to the exclusion of the person authorising: ibid ss 5(1)(a), 5(1)(b), 6(1)(a), 6(1)(b), 7(1)(a), 7(1)(b), 8(1)(a), 8(1)(b). There are no corresponding provisions conferring rights on the Public Trustee. (NT) Public Trustee Act 1979 s 36(1) (permits the appointment of the Public Trustee as sole executor in lieu of two or more nominated executors). The consent of the Public Trustee is required (ibid s 52), but that of the court is not: ibid s 36(2). The method of appointment is not otherwise provided for. (NSW) Probate and Administration Act 1898 s 75A(1) (the appointment is made by deed) (QLD) Trustee Companies Act 1968 ss 6(1)(c), 6(1)(d) (where the deceased died testate), 7(1) (where the deceased died intestate). Ibid s 6 authorises the executor and the trustee company to apply for, and for the court to make, either a joint grant of probate to the executor and administration with the will annexed to the trustee company, or a single grant of administration with the will annexed. It is not available where a grant of probate would require leave to be reserved to another person to apply for a grant; in such a case, the application is grounded under ibid s 9(1), 9(6). Ibid s 9 does not enable the appointing executor to obtain a joint grant with the trustee company: ibid s 9(1), 9(2). (SA) Public Trustee Act 1995 s 9(1)(h). A grant (administration order: ibid s 9(1)) can only be made to the Public Trustee to the exclusion of the person otherwise entitled to the grant: ibid s 9(1). Application for the grant is made by the Public Trustee in pursuance of a written request to do so by the person otherwise entitled to the grant: ibid s 9(1). See also (SA) Trustee Companies Act 1988 s 4(3). Application for the grant must be supported by the consent of the person otherwise entitled and requires the approval of the court or Registrar: ibid s 4(3). The grant is made to the trustee company to the exclusion of the person otherwise entitled to it: ibid s 4(3). (TAS) Public Trustee Act 1930 s 19(1). The grant to the Public Trustee must be supported by the written request of the person otherwise entitled to the grant to the Public Trustee to make the application: ibid s 19(1). See also (TAS) Trustee Companies Act 1953 ss 8 (requests by persons entitled to a grant of probate, without leave being reserved to another person to come in and prove the will), 9 (requests by persons otherwise entitled to general, special or limited grants of administration), 10 (requests where another person is entitled to come in and prove the will). Under these sections, the trustee company obtains a grant to the exclusion of the person authorising the Public Trustee to make the application: ibid ss 8-10. (VIC) Trustee Companies Act 1984 ss 10(1)(a) (applications for probate in lieu of the nominated executor), 10(1)(b) (applications for probate in conjunction with the nominated executor), 11(1)(a) (applications for administration, whether or not with the will annexed, in conjunction with the person otherwise entitled), 11(1)(b) (applications for administration by the trustee company in the stead of the person otherwise entitled).
(WA) Public Trustee Act 1941 s 12(1) (authorisation to the Public Trustee by the person, or a majority of the persons, otherwise entitled to administration with the will annexed, to seek an order to administer the estate), 12(2) (authorisation to the Public Trustee by the person, or a majority of the persons, named as executor, to seek an order to administer the estate), 12(3) (authorisation to the Public Trustee by the person, or a majority of the persons, otherwise entitled to general administration on intestacy, to seek an order to administer the estate). See also (WA) Trustee Companies Act 1987 ss 6(1)(a), 6(1)(b) (applications and authorisations in favour of a trustee company by persons entitled to a grant of probate, without leave being reserved to another person to come in and prove the will), 7(1)(a), 7(1)(b) (applications and authorisations in favour of a trustee company where a person is entitled to a grant of administration with the will annexed), 8(1)(a), 8(1)(b) (applications and authorisations in favour of a trustee company by persons otherwise entitled to a general grant of administration on intestacy). Under each of these sections, paragraph (a) deals with joint applications for the grant, and paragraph (b) with authorisations to the trustee company to seek a grant to the exclusion of the person authorising: ibid ss 6(1)(a), 6(1)(b), 7(1)(a), 7(1)(b), 8(1)(a), 8(1)(b). 5 (ACT) Trustee Companies Act 1947 ss 13 (appointment by deed filed in accordance with laws providing for filing of powers of attorney, of a trustee company to act in the stead of the appointor trustee, executor or administrator in relation to specified functions), 14(1) (appointment made, with the consent of the court, to perform all remaining duties of the appointor). Application is made by motion to the courts, and public advertisement is required: ibid s 15(1). There are no corresponding provisions conferring rights on the Public Trustee. (NT) Public Trustee Act 1979 s 33(1) (as to the Public Trustee). The appointment is made by the court, on application, and appoints the Public Trustee alone: ibid s 33(1). As to trustee companies see (NT) Companies (Trustees and Personal Representatives) Act 1981 s 21(1). The appointment requires the consent of the court (ibid s 21(1)), but the method of appointment is not otherwise provided for. (NSW) Probate and Administration Act 1898 s 75A(2) (the appointment is made by deed) (QLD) Trustee Companies Act 1968 s 9(1), 9(4) (SA) Public Trustee Act 1995 s 9(1)(f) (a grant (administration order: ibid s 9(1)) can be made where the existing grantee wishes to retire from the office of executor or administrator and is accordingly to the exclusion of that person). The existing grant is thereupon revoked, without prejudice to any proceedings taken or acts already done under it: ibid s 9(1)(f). See also (SA) Trustee Companies Act 1988 s 4(4) (with the approval of the court, the trustee company may act for or in the place of the grantee, on either a permanent or temporary basis). (TAS) Public Trustee Act 1930 s 15(1) (the appointment is made in writing by the executor or administrator, and appoints the Public Trustee to act in the place of the appointing executor or administrator). If the appointor is a sole surviving executor or administrator with the will annexed, the Public Trustee also becomes the sole trustee of the estate: ibid s 15(2). Any executor or administrator with the will annexed may ask the court to appoint the Public Trustee as sole trustee, executor or administrator: ibid s 15(1). See also (TAS) Trustee Companies Act 1953 ss 14 (appointment by deed filed in accordance with laws providing for filing of powers of attorney, of a trustee company to act in the stead of the appointor trustee, executor or administrator in relation to specified functions), 15(1) (appointment is made, with the consent of the court, to perform all duties of the appointor), 15(2) (public advertisement is required). (VIC) Trustee Companies Act 1984 ss 16 (delegation of specified functions of an executor, administrator or trustee, by power of attorney, to a trustee company as temporary executor, administrator or trustee), 17(1)(a) (appointment of trustee company to perform all the acts and duties of the trustee, executor or administrator). (WA) Public Trustee Act 1941 s 12(4), 12(6) (application to the court by the executors or
administrators, or a majority of them, to have the Public Trustee appointed sole executor or administrator). As to trustee companies see (WA) Trustee Companies Act 1987 ss 14 (delegation of specified functions of an executor, administrator or trustee, by power of attorney to a trustee company as temporary executor, administrator or trustee), 15(1) (appointment, with the consent of the court, of a trustee company to perform all the acts and duties of the trustee, executor or administrator).
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(I) Survivorship of Powers The paragraph below is current to 28 July 2011 [395-4540] Powers as an incident of office There is a rebuttable presumption1 that powers given to personal representatives and trustees are given ex officio, and pass with the office to its holder or holders for the time being.2 It follows that an executor who renounces probate is incapable of exercising any power given by the will where that power, on its true construction, is vested in the executor.3 A testators intention to empower an individual personally to perform certain tasks independently of the office of executor to which that will also appoints that person, must, in order to be effective, be expressed in the clearest possible words.4 Notes 1 Cole v Wade (1807) 16 Ves 27 at 44; (1807) 10 RR 129; (1807) 10 RR 135 per Grant MR . See also commentary on this dictum in Re Smith; Eastick v Smith [1904] 1 Ch 139 at 144; [19003] All ER Rep Ext 1056 per Farwell J .2 Re Smith; Eastick v Smith [1904] 1 Ch 139; [1900-3] All ER Rep Ext 1056 ; Re De Sommery; Coelenbier v De Sommery [1912] 2 Ch 622 .3 Crawford v Forshaw [1891] 2 Ch 261 , CA.4 This is clearly so in those jurisdictions where the right to exercise the powers of office derives from the grant but, in some jurisdictions, the common law rule that the office of executor derives from the will rather than the grant still enures and, in others, the rule has been extended by statute see [395-4000]. See also Ryan v Davies Bros Ltd (1921) 29 CLR 527; 28 ALR 178 . For instances where possible intentions to sever the power from the office have failed, see Crawford v Forshaw [1891] 2 Ch 261 , CA (power given to my executors herein named); Re Symms Will Trusts; Public Trustee v Shaw [1936] 3 All ER 236 (power given to my trustees in whom I place complete confidence).
The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4545] Exercise of powers following the death of one of multiple personal representatives Upon the death of one of several executors of a will or administrators of the estate of a deceased person, the survivor or survivors may exercise all the powers originally vested in the full complement of grantees. In New South Wales, Queensland and (in respect of real estate only) Victoria, this position is specifically confirmed by statute.1 In the other jurisdictions, it is a principle of common law.2 In respect of trustees,3 legislation in all jurisdictions4 empowers the survivors, in the case of the death of one or more, to exercise all powers originally vested in their full number. Notes 1 (NSW) Conveyancing Act 1919 s 26(2) (QLD) Succession Act 1981 s 45(1), 45(2) (VIC) Administration and Probate Act 1958 s 13(1). 2 Jolliffe v Fera [1973] 2 NSWLR 702 at 703 per Holland J . As to the interests of multiple grantees see [395-4020].3 As to the distinction between personal representatives (executors and administrators) on the one hand, and trustees on the other, see [395-4450].4 (ACT) Trustee Act 1925 s 57(1) (NT) Trustee Act 1893 s 23(1) (NSW) Trustee Act 1925 s 57(1) (QLD) Trusts Act 1973 s 16(1) (SA) Trustee Act 1936 s 32(1) (TAS) Trustee Act 1898 s 25(1) (VIC) Trustee Act 1958 s 22(1) (WA) Trustees Act 1962 s 45(1). Each of these statutes, however, also includes executors and administrators in its definition of trustee see [395-4450]. See further trusts [430-3235] (devolution of the office of trustee). The paragraph below is current to 28 July 2011 [395-4550] Exercise of powers following the death of last or sole personal representative At common law, where the sole executor, or the last surviving executor, of a deceaseds will dies testate without having completed administration of the head estate,1 the office of executor devolves upon the executors own executor.2 Except in a limited number of instances where various statutory provisions have extended the rule, it does not apply to: (1) trustees;3
(2) an executor of an administrator; (3) an administrator of an executor; or (4) an administrator of an administrator, whatever the nature of the grant of administration.4 Notes 1 Darrington v Caldbeck (1990) 20 NSWLR 212 .2 Maddock v Registrar of Titles (Vic) (1915) 19 CLR 681; 21 ALR 122 . See [395-3200] note 6.3 That is, in respect of any particular asset of the estate, where the executorial functions have been completed in relation to that asset see [3954450]. As to devolution of the office of trustee see trusts [430-3240].4 See [395-3200] note 7.
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(J) Power to Exercise Testamentary Functions of the Testator The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4555] General rule The general rule is that delegation of testamentary power is void. In Australia, at common law,1 a testator must exercise his or her power of testation personally, and may not delegate that right.2 Subject to certain recognised exceptions,3 a testator does not exercise the power personally if, in effect, he or she empowers his or her executors, or others, to
say what persons or objects are to be his or her beneficiaries.4 A delegation may also be unacceptable because it delegates the power to determine the quantum of the benefit which a selected beneficiary may take.5 The rule has been modified in some jurisdictions, to make the test for certainty in a will correspond with the test for certainty for an inter vivos trust.6 Notes 1 It may be that this rule applies only in Australia, and not in the remainder of the common law world, where there are decisions contrary to it: See Gregory v Hudson (1997) 41 NSWLR 573 at 576-7; BC9701111 per Young J .2 Tatham v Huxtable (1950) 81 CLR 639; [1951] ALR 1; (1950) 24 ALJ 416 ; Lutheran Church of Australia South Australia District Inc v Farmers Co-op Executors and Trustees Ltd (1970) 121 CLR 628; [1970] ALR 545; (1970) 44 ALJR 176 ; Gregory v Hudson (1998) 45 NSWLR 300 , CA(NSW) (affirming Gregory v Hudson (1997) 41 NSWLR 573; BC9701111 ); Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532; BC9701112 ; Horan v James [1982] 2 NSWLR 376 , CA(NSW); Calcino v Fletcher [1969] Qd R 8 ; Re Gillespie (decd) [1965] VR 402 .3 As to the exception to the rule see [395-4560].4 Tatham v Huxtable (1950) 81 CLR 639; [1951] ALR 1; (1950) 24 ALJ 416 .5 Horan v James [1982] 2 NSWLR 376 , CA(NSW). See also Klemke v Lustig [2010] VSC 502; BC201008404 .6 (ACT) Wills Act 1968 s 14A (NT) Wills Act 2000 s 43 (QLD) Succession Act 1981 s 33R (VIC) Wills Act 1997 s 48. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4560] Qualifications and exceptions to the general rule A number of exceptions to the general common law rule have been recognised by the courts. Included in these are the exercise of a general power of appointment,1 a power of encroachment, 2 secret and half-secret trusts,3 a power to select between charitable objects4 and a gift of property to a valid pre-existing discretionary trust.5 Further, if a testator designates with sufficient precision a class of persons or objects to be benefited, he or she may delegate to his or her trustees the selection of the individual person or object within the defined class.6 In some jurisdictions, a power to appoint or a trust to distribute property, created by will, is not void as a delegation of the testators power to make a will if the same power or trust would be valid if created by an instrument made inter vivos.7 Notes 1 Re Hughes; Hughes v Footner [1921] 2 Ch 208 ; Grey v FCT (1939) 62 CLR 49 at 63 per Dixon J ; Re McEwan; McEwan v Day [1955] NZLR 575 ; Calcino v Fletcher [1969] Qd R 8 ; National Trustees, Executors & Agency Co of Australasia Ltd v Trainor [1974] VR 49 ; Gregory v Hudson (1997) 41 NSWLR 573; BC9701111 .2 In the Estate of Langley (decd); Langley v Langley [1974] 1 NSWLR 46 (gift to beneficiaries, subject to the right of another (the deceaseds widow) to require the trustee from time to time to pay to her the whole or any part of the income or capital). See also Clifford v Mayr [2010] NSWCA 6; BC201000435 .3 Gregory v Hudson (1997) 41 NSWLR 573 at 584, 586; BC9701111 per Young J ; Re Beckbessinger [1993] 2 NZLR 362 . As to secret and half-secret testamentary trusts see [395-445]-[395-465].4
Tatham v Huxtable (1950) 81 CLR 639; [1951] ALR 1; (1950) 24 ALJ 416 ; Re Gillespie (decd) [1965] VR 402 . See also Kennon v Spry (2008) 238 CLR 366; (2008) 251 ALR 257; [2008] HCA 56; BC200810608 .5 Gregory v Hudson (1997) 41 NSWLR 573; BC9701111 (affirmed Gregory v Hudson (1998) 45 NSWLR 300 , CA(NSW)).6 Re Gillespie (decd) [1965] VR 402 ; In the Estate of Langley (decd); Langley v Langley [1974] 1 NSWLR 46 . See also NSW Masonic Youth Property Trust v Attorney-General (NSW) (2009) 3 ASTLR 520; [2009] NSWSC 1301; BC200910837 .7 (ACT) Wills Act 1968 s 14A (NT) Wills Act 2000 s 43 (QLD) Succession Act 1981 s 33R (VIC) Wills Act 1997 s 48. As to the general rule regarding delegation of testamentary power see [395-4555].
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(4) DISTRIBUTION OF ASSETS
(A) Classification The paragraph below is current to 28 July 2011 [395-4600] General, specific and demonstrative legacies A legacy is a testamentary gift 1 of personal property.2 There are three recognised categories of legacy, namely general, specific and demonstrative legacies.3 In addition, legacies may have a pecuniary nature4 or a residuary nature.5
Where a will gives property to a legatee, commanding the legatee to make specific payments to others, the executor has no duty to those others, their rights being solely against the legatee.6 Notes 1 A right given by will to a professional person to charge against the testators estate professional or other costs associated with the performance of the duties of an executor or trustee is a legacy: Commissioner of Stamp Duties (NSW) v Pearse (1953) 89 CLR 51; [1954] AC 91; (1953) 27 ALJ 616; [1954] 1 All ER 19 , PC.2 For the meaning of personal property see personal property [315-1].3 Walford v Walford [1912] AC 658 at 662 . Compare Paget v Huish (1863) 1 Hem & M 663; 8 LT 445; 71 ER 291 at 293 per Viscount Haldane, at 294 per Page Wood VC . As to the classification of legacies generally see [395-4265]. As to the order in which they are used to meet debts and other liabilities of the estate see [395-4615]. 4 As to pecuniary legacies see [395-4605].5 As to residuary legacies (that is, gifts of residue) see [395-4800].6 Re Williams [1950] ALR 751 . The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4605] Pecuniary legacies At common law, the expression pecuniary legacy is not a technical term. It includes an annuity,1 but excludes a specific legacy of mere chattels. 2 A share in residue is not a pecuniary legacy.3 A pecuniary legacy is typically a general legacy 4 unless the will specifies it as a particular fund or as particular items of currency (in which case it is a specific legacy)5 or nominates it as payable out of a particular fund (in which case it is a demonstrative legacy).6 In some jurisdictions, the expression has been statutorily defined7 to include an annuity, a general legacy, a demonstrative legacy (to the extent to which the property over which it is secured is insufficient to meet it), and any other general testamentary direction for the payment of money. In each case, where the legacy is expressed to be given free of duties, it also includes all duties which are payable in respect of it. In all jurisdictions, the applicable order in which assets are to be applied in the administration of solvent estates8 makes provision for setting aside amounts to meet pecuniary legacies.9 Notes 1 Gaskin v Rogers (1866) LR 2 Eq 284 at 291; 14 WR 707 per Page Wood VC.2 Gaskin v Rogers (1866) LR 2 Eq 284 at 291; 14 WR 707 per Page Wood VC.3 Re Elcom; Layborn v Grover Wright [1894] 1 Ch 303 .4 As to general legacies see [395-4265].5 As to specific legacies see [395-4265].6 As to demonstrative legacies see [395-4265].7 (QLD) Succession Act 1981 s 5 (definition of pecuniary legacy) (TAS) Administration and Probate Act 1935 s 3 (definition of pecuniary legacy) (VIC) Administration and Probate Act 1958 s 5(1) (definition of pecuniary legacy). The above three definitions are effectively identical to that in the (UK) Administration of Estates Act 1925 s 55(1)(ix).
There are no equivalent definitions in the other jurisdictions. However, to the extent to which the expression, as it appears in the legislation relating to administration of estates in the Australian Capital Territory, the Northern Territory and New South Wales, relates to the order of application of assets in those jurisdictions (the terms of which have been taken from the (UK) Administration of Estates Act 1925), the expression may also be interpreted in these jurisdictions in accordance with the definition in that Act. 8 As to the order for application of assets see [395-4330].9 As to the effect of these orders in relation to the payment of pecuniary legacies see [395-4620]. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4610] Annuities An annuity is, technically, a yearly payment of a certain sum of money 1 granted to another (the annuitant) in fee for life or years, charging the person of the grantor only.2 Payment of an annuity may, in addition, be charged upon land.3 If it is charged on land exclusively, it is properly called a rent-charge.4 The term annuity is also applied to yearly sums paid at other intervals,5 and to other periodical payments.6 For the purposes of administration, an annuity is a legacy,7 or perhaps a series of legacies payable at intervals,8 but it is not necessarily a legacy for all purposes.9 Except in New South Wales, interest is not payable on arrears of an annuity.10 To the extent to which an annuity is no more than a legacy of money to be paid in a specific form, it is a pecuniary legacy11 and will have the characteristics12 of a specific legacy, 13 a general legacy or a demonstrative legacy,14 as the case may require. In the absence of a direction in the will as to whether an annuity is charged upon income or capital or both, the general rule is that it charges the whole of the available estate.15 Where a will directs the purchase of an annuity, or a trustee is given the power under a will to purchase an annuity and has determined to do so, or where an annuity is charged upon property without a gift over of that property, the annuitant may elect to receive the purchase money or capital value of the annuity, instead of the annuity.16 Where an annuity is charged upon the residuary estate, the annuitant is entitled to require that a fund sufficient to answer the annuity be set aside.17 But if that fund proves to be insufficient to answer the annuity then, subject to the will and to any statutory provisions,18 the annuitant may follow the remainder of the residuary estate into the hands of its beneficiaries in order to make up the shortfall.19 Notes 1 Bignold v Giles (1859) 4 Drew 343 at 346; 62 ER 133 at 134 per Kindersley VC; Deputy Federal Commissioner of Land Tax, Sydney v Hindmarsh (1912) 14 CLR 334; 18 ALR 235 . Depending upon the true nature of the gift called an annuity by the testator, different considerations may apply to the manner in which it is to be dealt with at law: Permanent Trustee Co of New South Wales Ltd v A-G (1922) 23 SR (NSW) 29 at 37 per Street CJ in Eq.2 Deputy Federal Commissioner of Land Tax, Sydney v Hindmarsh (1912) 14 CLR 334 at 338 per Barton J, at 339-40 per Isaacs J; 18 ALR 235 .3 Deputy Federal Commissioner of Land Tax, Sydney v Hindmarsh (1912) 14 CLR 334 at 338 per Barton J, at 340 per Isaacs J; 18 ALR 235 .4 Savery v Dyer (1752) Amb 139 at 140; 27 ER 91 ; Bignold v Giles (1859) 4 Drew 343 at 347; 62 ER 133 . As to whether the characteristic of exclusivity is necessary see Watkins v DCT (1946) 49 WALR 63 at 67 per Dwyer CJ ; Deputy Federal Commissioner of Land Tax, Sydney v Hindmarsh (1912) 14 CLR 334 at 338 per Barton J, at 340 per Isaacs J; 18 ALR 235 . As to
rent-charges generally see real property [355-12270]-[355-12285]. As to limitations on the right to recover a rent-charge see also limitation of actions [255-225], [255-275].5 Deputy Federal Commissioner of Land Tax, Sydney v Hindmarsh (1912) 14 CLR 334 at 338; 18 ALR 235 per Barton J .6 See Australia and New Zealand Savings Bank Ltd v Cmr of Taxation (1993) 42 FCR 535; 114 ALR 673 at 692; 25 ATR 369; 93 ATC 4370 per Hill J ; Federal Commissioner of Taxation v Australia and New Zealand Savings Bank Ltd (1994) 181 CLR 466; 125 ALR 213; 69 ALJR 12; BC9404655 (reversed on another point ). See also Certoma G L, The Law of Succession in New South Wales, 3rd ed, LBC Information Services, 1997, p 161.7 Re Berkeley (Earl of), (decd); Inglis v Berkeley (Countess) [1968] Ch 154. It is also a testamentary expense (Paget v Huish (1863) 1 Hem & M 663; 8 LT 445; 71 ER 291 ) and, subject to any contrary provision in the will, is at common law prima facie payable out of personalty: Paget v Huish (1863) 1 Hem & M 663; 8 LT 445; 71 ER 291 ; Re Trenchard [1905] 1 Ch 82 . See further [395-4270].8 Re Berkeley (Earl of), (decd); Inglis v Berkeley (Countess) [1968] Ch 154 at 165 per Cross J.9 Re Dowdings Settlement Trusts [1904] 1 Ch 441 at 445 per Kekewich J .10 Torre v Browne (1855) 5 HL Cas 555; 10 ER 1017 ; Re Berkeley (Earl of), (decd); Inglis v Berkeley (Countess) [1968] Ch 744; [1968] 3 All ER 364 . As to interest payable on legacies generally see [395-4695]. As to interest on annuities in New South Wales see (NSW) Probate and Administration Act 1898 ss 84A(1), 153(1)(b). There are no equivalent provisions in the other jurisdictions. 11 As to the power to appoint the Public Trustee see [395-3100].12 As to the respective characteristics of these classes of legacy see [395-4265].13 Smith v Pybus (1804) 9 Ves 566; 32 ER 722 ; Creed v Creed (1844) 11 Cl & Fin 491; 8 ER 1187.14 Mann v Copland (1817) 2 Madd 223; 56 ER 317; Smith v Barton (1896) 17 LR (NSW) Eq 180.15 That is, upon both income and capital: Re Collers Deed Trusts; Coller v Coller [1939] Ch 277; [1937] 3 All ER 292; (1937) 157 LT 84 , CA.16 Stokes v Cheek (1860) 28 Beav 620; 54 ER 504 ; Re Mabbett; Pitman v Holborrow [1891] 1 Ch 707 (the court regarded the absence of a gift over as being merely in terrorem).17 Harbin v Masterman [1896] 1 Ch 351; [1895-99] All ER Rep 695 , CA.18 Each jurisdiction has legislated to invest a trustee with the power to appropriate in satisfaction of an annuity see [395-5005]. In each case, the legislation requires consents or other conditions or both. The common law rule allowing recourse applies when the requirements have not been fully complied with.19 Re Evans and Bettells Contract [1910] 2 Ch 438 .
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(B) Ademption and Abatement of Legacies The paragraph below is current to 28 July 2011 [395-4615] Ademption The doctrine of ademption applies to specific legacies 1 and requires that if, at the testators death, there is no property in the testators estate sufficiently2 answering the testamentary description of the intended gift, that gift fails.3 General legacies4 do not adeem.5 If there is no property held by the deceased at death sufficient to satisfy the gift, the legacy amounts to a direction to the executor to acquire the designated property for the legatee or, if such an acquisition is not possible within 12 months from the death of the testator, to pay to the legatee the value of the gift, plus interest from the date of death until the date of payment.6 Demonstrative legacies7 also do not adeem, even where there is a partial or total failure of the fund from which the legacy is directed to be paid.8 Where the fund fails, the legacy loses its security but, to the extent of the failure, becomes payable pari passu with the other pecuniary legacies directed by the will.9 Notes 1 As to specific legacies see [395-4265].2 As to the extent to which the description must be satisfied see [395-1165]. The actual property may have changed between the date of the will and death; it is the description of the property which is critical see, for example, In the Will of Smith (decd); Watson v Smith [1916] VLR 540 (my house and land in Urquhart Street, Coburg).3 As to ademption of gifts made by will see further [395-1150]-[395-1165]. As to equitable ademption see equity [185-1145]-[185-1190].4 As to general legacies see [395-4265].5 McBride v Hudson (1962) 107 CLR 604 at 630; [1963] ALR 226; (1962) 35 ALJR 439 per Windeyer J.6 Re Plowright (decd) [1971] VR 128 . See also Re Blake (2009) 25 VR 27; [2009] VSC 184; BC200903788 .7 As to demonstrative legacies see [395-4265]. As to the different incidents of demonstrative and specific legacies see Re Stephenss Will (1932) 27 Tas LR 58 .8 Re Webster; Goss v Webster [1937] 1 All ER 602; (1936) 156 LT 128; Roberts v Pocock (1798) 4 Ves 150; 31 ER 77 ; Mann v Copland (1817) 2 Madd 223; 56 ER 317; Fowler v Willoughby (1825) 2 Sim & St 354; 57 ER 381. Compare Re Walton [1936] SASR 15 , CA (court considered that legacies charged on the proceeds of sale of the testators business were specific legacies, and therefore adeemed because the testator did not own the business at the date of her death).9 Chauncy v Graydon (1743) 2 Atk 616; 26 ER 768 ; Re Lewis; Lewis v Lewis [1904] 2 Ch 656 , CA; Re Webster; Goss v Webster [1937] 1 All ER 602; (1936) 156 LT 128. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4620] Abatement Specific legacies, general legacies and demonstrative legacies may each abate,1 but do so differentially. Specific legacies are assigned priority positions in the order of application of assets respectively applying in each jurisdiction2 and, accordingly, will be among the last to abate.3 General pecuniary legacies are also provided for in those respective orders of application of assets, are not differentiated and abate rateably between themselves.4 Annuities will also abate, with general legacies,5 but not where they are charged against property the subject of a specific devise unless it is insufficient to bear the whole annuity.6
In all jurisdictions except Queensland,7 demonstrative legacies8 take priority over the property or fund on which they are charged and they are not reduced unless, after payment of estate debts, the property or fund is insufficient to pay the legacy in full and then only to the extent of that shortfall.9 As to the shortfall, they are treated as general legacies and rank equally with other pecuniary legacies.10 Notes 1 For the definition of abatement see Encyclopaedic Australian Legal Dictionary. 2 As to the order in which assets of an estate are to be applied in payment of the debts and liabilities of the estate in each jurisdiction see [395-4330], noting that (except in Queensland) the fund required to meet pecuniary legacies is to be applied before recourse is had to specific legacies.3 Allen v Edmonds (1886) 12 VLR 789 at 794 per Webb J (specific legacies abate rateably among themselves).4 Re Pope [1940] SASR 333 ; Re McConvill [1950] VLR 63 . The sequence in which legacies are mentioned in a will is not of itself to be taken as a direction as to the order in which they are to abate: Re Else; Trustees Executors and Agency Co Ltd v Else [1948] VLR 468; [1948] 1 ALR 133 ; Re Trusts of the Will and Codicil of Blewitt (1869) 7 SCR (NSW) Eq 93.5 Permanent Trustee Co of New South Wales Ltd v A-G (1922) 23 SR (NSW) 29 at 37 per Street CJ. As to the method of calculation of the abatement of an annuity see Re Else; Trustees Executors and Agency Co Ltd v Else [1948] VLR 468 at 474-8; [1948] 1 ALR 133 per OBryan J; Permanent Trustee Co of New South Wales Ltd v A-G (1922) 23 SR (NSW) 29 ; McMah v Mills (1896) 7 QLJ 37 ; Re Mathew (decd); Trustees Executors & Agency Co Ltd v Mathew [1951] VLR 226; [1951] ALR 518 ; West Australian Trustee Executor & Agency Co Ltd v Evans (1936) 39 WALR 84 .6 Re Sloan; Stevens v Sloan [1943] VLR 63 .7 (QLD) Succession Act 1981 s 59(2). The section provides that, where a legacy is charged on a specific property, the legacy and the property shall be applied rateably in the discharge of debts; that is, a demonstrative legacy does abate with the property on which it is charged.8 As to demonstrative legacies see [395-4265].9 Raikes v Boulton (1860) 29 Beav 41; 54 ER 540; Re John; Jones v John [1933] Ch 370 ; Re Sloan; Stevens v Sloan [1943] VLR 63 .10 Re Sloan; Stevens v Sloan [1943] VLR 63 .
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(C) Payment The paragraph below is current to 28 July 2011
To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4625] Priority for payment In South Australia and Western Australia, where the common law governs the relevant order of application of assets,1 those pecuniary legacies which are neither specific nor demonstrative are paid with the same priority as debts and funeral and testamentary expenses.2 Each of the remaining jurisdictions except Queensland 3 has adopted a statutory order based on the English legislation4 and, in each case, the legislation requires a fund for the payment of pecuniary legacies to be set aside out of assets undisposed of by the will and, to the extent of any shortfall, out of assets not specifically disposed of by the will.5 However, as these provisions do not specify6 whether or not those legacies are to be paid from that fund,7 or whether they should continue to be paid with the priority afforded them by the common law,8 the position is uncertain. Notes 1 As to the order of application of assets see [395-4330].2 As to the order of application of assets see [395-4330].3 In Queensland, pecuniary legacies are directed to be paid from Class 2 assets remaining after payment of debts and, to the extent to which those assets are insufficient for the purpose, the legacies abate proportionately: (QLD) Succession Act 1981 s 60.4 (UK) Administration of Estates Act 1925 s 33(2), Sch 1 Pt II.5 As to these statutory orders see [3954330].6 Most (but not all) English cases have followed this procedure see, for example, Re Worthington; Nichols v Hart [1933] Ch 771 .7 That is, these provisions stipulate the order in which debts and expenses are to be paid, but do not indicate whether pecuniary legacies are to be included amongst such debts and expenses. The statutory provision does not interfere with an executors discretion concerning what property should be sold for the purpose of paying the debts and testamentary expenses; rather it provides a default rule for how the burden of debts and testamentary expenses is to be borne amongst different types of beneficiaries: Joyce v Cam (2004) 12 BPR 22,231; [2004] NSWSC 621 at [48]; BC200404763 per Campbell J .8 See, for example, Perpetual Trustee Co (Ltd) v Walker (1941) 41 SR (NSW) 174 . In Re Berry; Equity Trustees Executors & Agency Co Ltd v Berry [1954] VLR 557 , the English cases were distinguished as the intestacy (that is, the failure to dispose of property by will) only arose after the death of a life tenant taking under the will. The paragraph below is current to 28 July 2011 [395-4630] Priorities between legacies Certain rules which apply subject to the terms of a will have been established by the common law in relation to the priorities of legacies as between themselves. General legacies have priority greater than residuary legacies1 but lower than specific legacies.2 As between themselves, general legacies are payable proportionately, with no one legacy being entitled to priority over another,3 and, where a specific pecuniary legacy is charged upon assets specifically dealt with by the will, that legacy will not be reduced unless, once all debts have been paid, the value of that property is insufficient to pay the legacy in full.4 Notes 1 Baker v Farmer (1868) LR 3 Ch App 537.2 Smith v Smith (1903) 3 SR (NSW) 571 .3 Blower v Morret (1752) 2 Ves Sen 420; 28 ER 268 ; Re Schweders Estate; Oppenheim v Schweder [1891] 3 Ch 44 (near relationship to the testator does not of itself give a legatee any priority over other legatees, and a mere direction to pay a legacy immediately or within a certain time after the testators death is not evidence of an intention on the part of the testator to give priority to that particular legacy); Whitehouse v Insole (1862) 7 LT 400; Miller v Huddlestone (1851) 3 Mac & G 513; 42 ER 358 ; Nickisson v Cockill (1863) 3 De G J & Sm 622; 46 ER 778 (although
a legacy is deferred as to its time of payment, it ranks equally with other legacies in the distribution of assets).4 Re Sloan; Stevens v Sloan [1943] VLR 63 ; Re John; Jones v John [1933] Ch 370 . The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4635] Time for payment An executor is generally allowed 12 months from the deceaseds death to administer the estate.1 Once administration is complete, the interests of beneficiaries, including legatees, crystallise and they are generally entitled to be paid according to the tenor of the will.2 In South Australia, an administrator who holds property within the State belonging to a beneficiary who is not sui juris or not resident in the State and has no duly authorised agent or attorney in the State, must deliver, convey or transfer that property to the Public Trustee immediately after the expiration of one year from the date of the deceaseds death.3 Notes 1 This is the concept of the executors year see [395-4190]. The principle has received specific statutory recognition (a personal representative is not bound to distribute the estate before the expiration of one year from the death) in (TAS) Administration and Probate Act 1935 s 43(1); (VIC) Administration and Probate Act 1958 s 49, and is generally recognised elsewhere in relation to the requirement to pay interest on certain legacies after one year see [395-4695].2 Re Tankard; Tankard v Midland Bank Executor and Trustee Co Ltd [1942] Ch 69; [1941] 3 All ER 458 .3 (SA) Administration and Probate Act 1919 s 65(1). A judge may order that an administrator is not bound by the section or not bound until after a certain time mentioned in the order: ibid s 67. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4640] Summary applications for legacies In some jurisdictions, where a personal representative, after receiving a written request, neglects or refuses to: (1) sign an acknowledgement;1 (2) execute a conveyance of land; or (3) pay or hand over a legacy or residuary bequest, the person entitled to that property may apply to the court for an order that the personal representative comply with the request, and the court may make such order as it thinks fit.2 In some jurisdictions, the general trustee legislation authorising the making of vesting orders has
a similar effect.3 Notes 1 As to acknowledgements see [395-4925]. In some jurisdictions the term assent is used rather than acknowledgment.2 (ACT) Administration and Probate Act 1929 s 57 (NT) Administration and Probate Act 1969 s 88 (the section does not include reference to neglect or omission to sign an acknowledgement) (NSW) Probate and Administration Act 1898 s 84 (WA) Administration Act 1903 s 42 (the section does not include reference to neglect or omission to sign an acknowledgement). 3 (QLD) Trusts Act 1973 s 98 (SA) Trustee Act 1936 s 42 (TAS) Trustee Act 1898 s 42 (VIC) Trustee Act 1958 s 64. As to vesting orders generally see trusts [430-3485]-[430-3510]. The paragraph below is current to 28 July 2011 [395-4645] Statutory substitution of beneficiaries to prevent lapse Legislation in all jurisdictions prevents gifts to the testators children or remoter issue from lapsing1 in certain situations by substituting other beneficiaries for those originally intended to take,2 subject to any contrary provision in the will. Notes 1 As to the doctrine of lapsing of a testamentary gift see [395-1170]-[395-1190].2 For a detailed treatment of these provisions see [395-1180].
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(D) Legacies to Debtors and Creditors The paragraph below is current to 28 July 2011 [395-4650] Legacies to debtors The amount of the principal of a debt payable to a deceased person at the date of that persons death, with any interest accrued on it to that date, is an asset in that persons estate.1 This remains true even where the will releases the debt, as the release operates as a legacy in favour of the debtor of the amount of the debt.2 Where the amount of a pecuniary legacy to a debtor of the estate equals or exceeds the amount of the debt, the value of the debt must be offset immediately and the debtor is entitled to resist a demand for payment, and only the residue (if any) of the legacy is payable to the debtor and legatee.3 Where the amount of the debt exceeds the value of any legacy, other than a specific legacy, the debtor is entitled to apply the legacy to the debt, and pay only the difference.4 Where a debt has been paid off since the will was made, a release of the value of that specific gift is ineffective to release any part of a subsequent debt due by the same debtor.5 Notes 1 Commissioner of Stamp Duties (NSW) v Bone (1976) 135 CLR 223; 9 ALR 11; 6 ATR 66; [1977] AC 511 ; Corsini v State Cmr of Taxation (WA) (1976) 6 ATR 560 .2 Commissioner of Stamp Duties (NSW) v Bone (1976) 135 CLR 223; 9 ALR 11; 6 ATR 66; [1977] AC 511 .3 The rule does not apply where: (1) the legatee is a member of a partnership which owes money to the deceased (Turner v Turner [1911] 1 Ch 716 ); (2) the debtor owes money to a partnership of which the testator was a member (Jackson v Yeats [1912] 1 IR 267); or (3) the debtor has become bankrupt in the testators lifetime see bankruptcy [50-650]. As to the availability of the right of set-off where the debtor becomes bankrupt after the death of the testator see bankruptcy [50-1225]-[50-1235]. See also Commissioner of Stamp Duties (NSW) v Bone (1976) 135 CLR 223 at 229-30; 9 ALR 11; 6 ATR 66; [1977] AC 511 . 4 Re Akerman; Akerman v Akerman [1891] 3 Ch 212 .5 Gardner v Hatton (1833) 6 Sim 93; 58 ER 530. The paragraph below is current to 28 July 2011 [395-4655] Where debtor appointed as executor Because a person cannot at law sue himself or herself, the vesting of the testators property in an executor1 who is debtor of the testator extinguishes the cause of action in debt,2 at least in the absence of statutory preservation of the right to sue in such circumstances.3 It does not, however, extinguish the debt itself, which remains recoverable in equity.4 Notes
1 As to the vesting of the assets of a deceased in the personal representative see [395-4000], [395-4005].2 Commissioner of Stamp Duties (NSW) v Bone (1976) 135 CLR 223; 9 ALR 11; 6 ATR 66; [1977] AC 511 .3 Doncon v Doncon (1994) 10 SR (WA) 218 .4 Commissioner of Stamp Duties (NSW) v Bone (1976) 135 CLR 223 at 228; 9 ALR 11; 6 ATR 66; [1977] AC 511 . The paragraph below is current to 28 July 2011 [395-4660] Legacies to creditors Where a testator gives a legacy to a person who is already a creditor of the testator, the question arises whether the legacy is to be applied in total or partial satisfaction of the debt due to the legatee, or whether it is payable in addition to the debt. In these cases, the equitable doctrine of satisfaction is applied to determine the issue.1 The doctrine does not apply where, to the testators knowledge, the amount of the debt fluctuates and varies.2 Notes 1 As to the doctrine of satisfaction see [395-1225] and equity [185-1145].2 Webb v Webb (1900) 21 LR (NSW) Eq 245; 17 WN (NSW) 188 .
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(E) Legacies to Executors The paragraph below is current to 28 July 2011 [395-4665] Presumption that legacy depends on the office There is a presumption that a legacy given to a person named in the will as executor is conditional upon that named executor acting in that capacity,1 a fortiori if the legacy is given to that person as executor. 2 The presumption is rebuttable,3 but the circumstances relied upon for the rebuttal must appear on the face of the will.4 The presumption has been held not to apply where the gift is of residue, 5 where it is given to the legatee as a friend6 or relative of the testator, 7 as a mark of respect 8 or as a remembrance,9 or where the legacy is a gift in remainder after the termination of an interest for life.10 Notes 1 Re Appleton; Barber v Tebbit (1885) 29 Ch D 893 , CA; In the Will of Steele (1915) 15 SR
(NSW) 247 ; Public Trustee v Kuehn [1983] 1 NSWLR 195 . The court is always bound to have close regard to the testators intention when administering a will: Winter Irving v Winter [1907] VLR 546 at 564; (1907) 13 ALR 298 per Madden CJ, SC(VIC), Full Court; In the Estate of Taylor (decd) [1965] SASR 136 at 144-5 per Travers J. It may not be necessary for the executor to have acted in the trusts (Re Sharmans Will Trusts; Public Trustee v Sharman [1942] Ch 311; [1942] 2 All ER 74 ), or even to have performed the executorial duties: Lewis v Mathews (1869) LR 8 Eq 277. See, however, Harford v Browning (1787) 1 Cox Eq Cas 302; 29 ER 1077.2 Re Fullertons Will (1885) 6 LR (NSW) P & D 15; 1 WN (NSW) 140 ; Cockerell v Barber (1826) 2 Russ 585; 38 ER 455.3 In the Will of Steele (1915) 15 SR (NSW) 247 .4 In the Will of Steele (1915) 15 SR (NSW) 247 . See also Re Appleton; Barber v Tebbit (1885) 29 Ch D 893 at 898 where Fry LJ expressly declined to concur in the view of Cotton LJ (at 895) that parol evidence might be called to rebut the presumption; Lindley LJ did not address the question. See also In the Will of Pauton (1909) 26 WN (NSW) 51 at 52 per Street J (parol evidence of the clearest and most convincing description might be admitted to rebut the presumption (obiter)).5 In the Estate of Taylor (decd) [1965] SASR 136 at 144 per Travers J; In the Will of Bowlin (1919) 19 SR (NSW) 277 ; Griffiths v Pruen (1840) 11 Sim 202; 59 ER 851.6 In the Will of Wirth (1930) 47 WN (NSW) 188 .7 Compton v Bloxham (1845) 2 Coll 201; 63 ER 699.8 Burgess v Burgess (1844) 1 Coll 367; 63 ER 458.9 Bubb v Yelverton (1871) LR 13 Eq 131.10 Re Reeves Trusts (1877) 4 Ch D 841 . The paragraph below is current to 28 July 2011 [395-4670] Acceptance of legacy may preclude a right to commission It has been held that a legacy in favour of an executor is ordinarily presumed to be intended by the testator to substitute for that executors right to commission.1 The current status of this principle as a rule of law is doubtful,2 although it is clear that a right to commission will not be available where the will specifically provides for remuneration of the executors.3 Even where the principle applies, an executor who has taken office may renounce the legacy and receive commission4 unless, on the face of the will, acceptance of the legacy is a precondition of the office.5 In all jurisdictions except Tasmania6 the court may, in exceptional circumstances, allow an additional sum by way of commission if the legacy is wholly inadequate.7 The personal representative may, however, retire from the trusts and seek reappointment on the basis of a contract made with the beneficiaries for remuneration of the representatives future services.8 Notes 1 Winter Irving v Winter [1907] VLR 546; (1907) 13 ALR 298 , SC(VIC), Full Court; In the Will of Morrison (1933) 50 WN (NSW) 88 ; In the Will of MacDonald (1947) 65 WN (NSW) 12 ; In the Will of Levy (1885) 1 WN (NSW) 167; In the Will of Blake (decd) (1878) 1 SCR (NS) (NSW) 253 ; In the Will of Pauton (1909) 26 WN (NSW) 51 ; In the Will of Bowlin (1919) 19 SR (NSW) 277 . The principle extends to a legacy in the form of a charging clause in favour of an executor who is a solicitor or other professional (see [395-4600] note 1): In the Will of Kerrigan (1935) 35 SR (NSW) 242 . See also Bassett v Atherley [2011] WASC 117; BC201010613 . For an instance where the court considered that there was sufficient indication on the face of the will that the legacy was not intended as remuneration see In the Will of Bowlin (1919) 19 SR (NSW) 277 . If the will expressly provides that the executor might receive both the legacy and commission, he or she is entitled to both see In the Will of Bowlin (1919) 19 SR (NSW) 277 ; In the Will of Millan (1876) 2 VLR (P) 58. 2 In Queensland, the court has denied the existence of such a rule: Re Lack [1983] 2 Qd R 613 at 617 per McPherson J . See also Re Estate of Ghidella [2005] QSC 106; BC200502750 . In South Australia, the court has doubted the rules existence: In the Estate of Taylor (decd) [1965] SASR 136 at 144 per Travers J . In Victoria, it has been held that the giving of a legacy to executors on condition of their acting in that capacity was not a clear indication of an intention on the part of the testator that the executors were not to have commission: In the Will of Millin (1876)
2 VLR (IP & M) 86 .3 In the Will of Fellows (1879) 5 VLR (IP & M) 82 (words in the will importing a specific payment for executors payment disallowed claim for commission). Where the legacy is specified as being consideration for performance of the trusts of the will, commission will be denied: Re Stronell (decd); Thomas v Stronell (1893) 19 VLR 64 ; In the Will of Blake (decd) (1878) 1 SCR (NS) (NSW) 253 . See also In the Will of Hutchings (1889) 15 VLR 419 (the will itself specified a commission). Commission may be allowed in respect of work done outside the scope of the work for which remuneration is provided in the will: Winter Irving v Winter [1907] VLR 546; (1907) 13 ALR 298 , SC(VIC), Full Court (will provided remuneration to executor for work done before a certain date, however the court granted commission to the executor for work done after the date); Re Birch; Campbell v Union Trustee Co of Australia Ltd [1924] VLR 510 (limited to income; an allowance of commission was made in respect of corpus).4 In the Will of Levy (1885) 1 WN (NSW) 167; In the Will of Morrison (1933) 50 WN (NSW) 88 at 89 per Harvey J ; In the Will of Oddie [1976] 1 NSWLR 371 . A solicitor executor who is authorised by the will to administer the estate with the right to be paid for his or her services must elect where to take non-professional costs and not apply for commission, or apply for commission and abandon non-professional costs: In the Will of Kerrigan (1935) 35 SR (NSW) 242 ; In the Will of Marsden (1926) 43 WN (NSW) 170 . See also In the Will of Douglas (decd) (1951) 51 SR (NSW) 282 .5 In the Estate of Burdekin (decd) (1901) 1 SR (NSW) B & P 1; 18 WN (NSW) 156 ; In the Will of Wheelihan (decd) (1912) 29 WN (NSW) 98 (legacy was given in lieu of commission); In the Will of Morrison (1933) 50 WN (NSW) 88 (legacy given in consideration of his services as my executor); Re Murphy (decd) [1928] St R Qd 1 , SC(QLD), Full Court; In the Will and Codicil of Holmes (decd) (1889) 15 VLR 734; 11 ALT 52 , SC(VIC), Full Court.6 Re Medwin (1919) 15 Tas LR 75 ; Re Stewart [1964] Tas SR 309 .7 Re Murphy (decd) [1928] St R Qd 1 ; Re the Will of Gibbon (1888) 3 QLJ 120, SC(QLD), Full Court; Re Taylor and the Act No 31 of 1855-6 (1867) 1 SALR 13 ; Re Johnson [1924] SASR 31 ; Re the Will of Stratton (decd) [1981] WAR 58 . The Victorian cases are not consistent: In the Will of Richmond (1882) 8 VLR (IP & M) 22 ; In the Will and Codicil of Stanway (1883) 9 VLR (IP & M) 36 ; Winter Irving v Winter [1907] VLR 546 at 566; (1907) 13 ALR 298 per ABeckett J , SC(VIC), Full Court; Re Dunne; Bingeman v National Trustees, Executors and Agency Co Ltd [1934] VLR 307; [1934] ALR 372 ; Re White (decd); Tweedie v A-G (2003) 7 VR 219; [2003] VSC 433; BC200306790 (the court increased renumeration to account for CPI and to recognise that the role of executor had become a substantial and onerous one; full discussion of earlier cases by Kellam J).8 In the Will of Morrison (1933) 50 WN (NSW) 88 at 89-90 per Harvey J . As to the sufficiency and effect of such agreements see In the Will of Moore (decd) (1896) 17 LR (NSW) B & P 78; Re Gambling (decd) [1966] SASR 134 . However see Starke v James [2009] SASC 40; BC200900843 .
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(F) Legacies to Minors The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4675] Obtaining a discharge from a minor Where, under the trusts of a deceased estate, a legacy is payable or property is transferable to a minor,1 the personal representative cannot safely pay that legacy or transfer that property to any person other than the legatee minor2 except where specifically authorised to do so by will or by statute.3 If payment is made to another person without authority, the minor, on attaining 18 years of age and unless he or she has ratified the payment after that time, may sue the personal representative for the legacy.4 Further, unless it is permitted by statute,5 the personal representative cannot obtain an effective discharge from the minor until he or she attains majority. The alternatives available in particular jurisdictions for the trustee who seeks to divest trust property held for a minor beneficiary include distributions of income or capital or both by way of maintenance and for similar purposes,6 the appointment of trustees of minors property, 7 obtaining an order for sale of the minors property8 or, where the trustee seeks to be divested of the trusts, by payment into court.9 In South Australia, an administrator who holds any property in the State belonging to a minor, must pay that money over or deliver that property to the Public Trustee,10 unless the court orders otherwise.11 In Queensland and Tasmania, the personal representative may pay to the Public Trustee the whole amount of any money held for the minor, and in writing direct the Public Trustee to account to the minor in accordance with the will.12 Similar powers to pay trust money to the Public Trustee apply in the Australian Capital Territory and New South Wales.13 In Victoria, the administrator of an intestate estate not exceeding a prescribed amount after payment of debts, may pay to the minors guardian the distributive share in the estate of any child of the deceased who is minor and whose other parent is not still alive and in so doing is discharged from all further liability in respect of that share in the estate.14 Notes 1 That is, a person under the age of 18 years. The word minor is used in this title to denote such a person, although the legislation of the various jurisdictions uses two different terms for the purpose, as follows: (ACT) Age of Majority Act 1974 s 5 (infant) (NT) Age of Majority Act 1974 s 4 (infant) (NSW) Probate and Administration Act 1898 s 3 (minor) (QLD) Acts Interpretation Act 1954 s 36 (infant when under the age of seven years, otherwise a minor) (SA) Age of Majority (Reduction) Act 1971 s 4(4) (reference is made to both infant and minor) (TAS) Age of Majority Act 1973 s 3 (reference is made to both infant and minor)
(VIC) Age of Majority Act 1977 s 3 (minor) (WA) Age of Majority Act 1972 s 5 (reference is made to both infant and minor) 2 Dagley v Tolferry (1715) 1 P Wms 285; 24 ER 391; Rotheram v Fanshaw (1748) 3 Atk 628 at 629; 26 ER 1161 at 1162 per Lord Hardwicke.3 As to the delivery to the minor or to the minors guardian of chattels (but not money) to which the minor is entitled see: (QLD) Trusts Act 1973 s 74(1) (WA) Trustees Act 1962 s 73(1). There are no equivalent provisions in the other jurisdictions. See also In the Trusts of the Will of Rahe [1940] QWN 31 guardian). (authorisation of payment to a
4 Cooper v Thornton (1790) 3 Bro CC 96; 29 ER 430 (affirmed Cooper v Thornton (1790) 3 Bro CC 186; 29 ER 479).5 (NSW) Minors (Property and Contracts) Act 1970 ss 6, 18, 19. A minor may undertake certain civil acts which are presumptively binding on the minor that is not invalid on account of the minority: ibid s 6 (subject to a lower limit designated in terms of the minors understanding: ibid s 18). A civil act includes an acknowledgment of receipt of property and a discharge or acquittance: ibid s 6(1)(e), 6(1)(f). Civil acts which are for the minors benefit at the time of his or her participation are presumptively binding on the minor: ibid s 19. As to the effect and operation of this legislation see further contract [110-2700]-[110-2745]. There is no equivalent legislation in any other jurisdiction. See, however,(SA) Minors Contracts (Miscellaneous Provisions) Act 1979 ss 6 (in relation to minors contracts), 8 (power to ask the court to appoint a person to transact any specified business, or business of a specified class, or to execute any documents, on behalf of the minor). 6 As to such payments see [395-4460] and trusts [430-4910]-[430-4950].7 As to appointment of trustee of minor's property see [395-4680].8 As to orders for sale of minor's property see [3954685].9 As to payments into court by trustees see [395-4520] and trusts [430-3840]-[4303860].10 (SA) Administration and Probate Act 1919 s 65(1)(a). See also [395-4525].11 Ibid s 67.12 (QLD) Public Trustee Act 1978 s 43 (referring to property held on trust for an infant) (TAS) Public Trustee Act 1930 s 16(1), 16(3). 13 (ACT) Trustee Act 1925 s 47(1) (NSW) Trustee Act 1925 s 47(1). 14 (VIC) Administration and Probate Act 1958 s 54 (not exceeding $1000). The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4680] Appointment of trustees of minors property Where the personal representative of a deceased person holds property to which a minor is absolutely entitled and which is not already directed by the will to be held for the minor by other trustees, legislation in some jurisdictions, permits the personal representative to appoint separate trustees of that property for
the minor.1 The new trustee may be a trustee company, or two, three or four individuals, and may include the personal representative. The personal representative may do everything necessary to perfect the vesting of the property in the new trustees. The property may be retained by the new trustees in its existing condition or state of investment.2 Upon the appointment, the personal representative, as such, is discharged from further liability for the property. In Queensland, where a minor is beneficially entitled to property and there is no trustee, on the application of the minors guardian or next friend the court may appoint the guardian or some other person to act as a trustee.3 Notes 1 (NSW) Conveyancing Act 1919 s 151D. The appointment must be by registered deed. In the case of land, the appointment may be made for the purposes of ibid s 151C (which relates to the management of land during the minority of the beneficial owner). (TAS) Administration and Probate Act 1935 s 41. In the case of land, the appointment may be made for the purposes of the (TAS) Settled Land Act 1884 and any statutory provisions relating to the management of lands during a minority. (VIC) Administration and Probate Act 1958 s 47. In the case of land, the appointment may be made for the purposes of the (VIC) Settled Land Act 1958 and any statutory provisions relating to the management of lands during a minority. (WA) Administration Act 1903 s 17A. The power may be exercised subject to any discretion or restriction in the will: ibid s 17A(5). There are no equivalent provisions in the Australian Capital Territory, the Northern Territory and South Australia. 2 As to the form in which trust property may otherwise be held see [395-4465], [395-4470].3 (QLD) Trusts Act 1973 s 87. There are no equivalent provisions in the Australian Capital Territory, the Northern Territory and South Australia. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4685] Orders for the sale of minors property Legislation in South Australia permits either the personal representative who holds property for a minor, or the guardian or next friend of a minor who is beneficially entitled to any real or personal property forming part of a deceased estate, to apply to the court for an order that the property be sold.1 Similar provisions in the Australian Capital Territory and New South Wales apply to general trust property2 held for a minor in those jurisdictions.3 Notes 1 (SA) Administration and Probate Act 1919 s 63.2 As to the implications of general trust law for personal representatives in a deceased estate see [395-4450].3 (ACT) Trustee Act 1925 s 84 (NSW) Trustee Act 1925 s 84.
There are no equivalent provisions in the other jurisdictions. See trusts [430-4765]. The paragraph below is current to 28 July 2011 [395-4690] Taxation implications Where a minors legacy (including a legacy which is residue or share of residue) attracts interest or other income which also accrues to the minor, the personal representative is obliged to pay income tax on that interest or income as agent for the minor.1 The transfer of estate property, other than Australian currency, by a personal representative to a beneficiary may have capital gains tax implications for the estate or the beneficiary, or both2 and may also have goods and services tax implications for either or both.3 Notes 1 See taxation and revenue [405-18045].2 As to capital gains see taxation and revenue [4057001]-[405-7650].3 See taxation and revenue [405-7001]-[405-7650].
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(G) Interest and Accretions The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4695] Interest on legacies At common law and subject to any contrary direction in the will, 1 simple interest2 is payable on general legacies3 from the expiration of 12 months from the date of the testators death4 until the date of payment. 5 However, a legacy directed to be paid immediately after the testators death carries interest from the date of death,6 as do legacies: (1)
payable in satisfaction of a debt due by the deceased;7 (2) payable to a minor8 who is a child of the testator or a person in relation to whom the testator stood in loco parentis;9 (3) expressed to be for the maintenance of any other minor;10 and (4) which are charged on realty.11 Legacies which are directed to be paid at a date later than a year after the testators death carry interest only from that date.12 These rules have been preserved by statute in Queensland.13 In all jurisdictions except South Australia and Tasmania, subject to either a will, codicil or court orders, the above exceptions are modified by regulation when a judgment of the court directs an account of legacies.14 An entitlement to interest does not exist independently of the right to the legacy and, if the legacy abates, the interest payable is calculated having regard to the amount of the legacy after the abatement.15 Interest is not payable on an annuity, or (except in New South Wales) on arrears of an annuity.16 General legacies do not carry the right to receive any income which may be earned by the estate on them or on their value before payment to the legatee17 or, in the Australian Capital Territory and New South Wales, before property in satisfaction of the legacy is appropriated in or towards satisfaction of that legacy.18 Where a part payment of a legacy is made, the recipient may treat it as being paid in respect of any interest due and, as to any residue, on account of the corpus of the legacy.19 Notes 1 Hutcheon v Mannington (1791) 1 Ves 366; 30 ER 388; Re Yates; Throckmorton v Pike (1907) 96 LT 758; Re Whiteley (1909) 101 LT 508 .2 That is, not compound interest: Perkyns v Baynton (1784) 1 Bro CC 574; 28 ER 1305.3 As to general legacies see [395-4265], [395-4600], [3954605]. In the case of a non-pecuniary general legacy, any interest which is payable is calculated on the capital value or purchase price (as the case may be) of the property at the end of the executors year, or at the earlier date of actual payment or acquisition: Permanent Trustee Co of New South Wales Ltd v Royal Prince Alfred Hospital (1944) 62 WN (NSW) 137 . In South Australia, interest is payable only on pecuniary legacies: (SA) Administration and Probate Act 1919 s 120A(1). See also [395-4605]. The basis of the right to interest appears to be prevention of augmentation of the value of the residue arising solely because of delay in administration: Re Wyles; Foster v Wyles [1938] Ch 313 at 315-17 per Farwell J .4 Re Tyson; Tyson v Webb (1906) 7 SR (NSW) 91; 24 WN (NSW) 6 . See also Re Campbell; Campbell v Campbell [1893] 3 Ch 468 at 472 per Stirling J (discusses rate of interest and why payable). The deferral of the right to interest during this period reflects the concept of the executors year see [395-4190], [395-4635] note 1. See also: (QLD) Succession Act 1981 s 52(1)(e)(i), 52(1A) (SA) Administration and Probate Act 1919 s 120A(4)(a) (TAS) Administration and Probate Act 1935 s 43(1).
The period is allowed notwithstanding that the will directs the legacy to be paid as soon as possible (Webster v Hale (1803) 8 Ves 410; 32 ER 414 at 415; Benson v Maude (1821) 6 Madd 15; 56 ER 994), or that it is in favour of the testators spouse (Re Whittaker; Whittaker v Whittaker (1882) 21 Ch D 657 ), or adult child: Wall v Wall (1847) 15 Sim 513; 60 ER 718 . 5 Bird v Lockey (1716) 2 Vern 743; 23 ER 1086 at 1087; Re Tyson; Tyson v Webb (1906) 7 SR (NSW) 91; 24 WN (NSW) 6 . See also: (QLD) Succession Act 1981s 52(1)(e)(i), 52(1)(e)(ii), 52(1A) (SA) Administration and Probate Act 1919 s 120A(1). 6 Re Pollock; Pugsley v Pollock [1943] Ch 338 .7 Clark v Sewell (1744) 3 Atk 96; 26 ER 858 at 860 . This exception does not apply if the legacy is expressed to be payable at a date after the death of the testator: Adams v Lavender (1824) MCle & Yo 41; 148 ER 317.8 As to the concept of a minor see [395-4675] note 1.9 Gleeson v Gleeson (1886) 12 VLR 783 ; Re Smith (decd); Martin v Smith (1918) SALR 1; Re Vincent (1924) 27 WALR 50 ; Re Black; Black v Melbourne Hospital [1911] VLR 280 ; Wilson v Maddison (1843) 2 Y & C Ch Cas 372; 63 ER 164; Re Stokes; Bowen v Davidson [1928] Ch 716 .10 Re Hardgrave [1978] Qd R 471 ; Harvey v Harvey (1724) 2 P Wms 21; 24 ER 625; Haughton v Harrison (1742) 2 Atk 329; 26 ER 600 at 601; Pett v Fellows (1733) 1 Swan 561; 36 ER 505; Re Churchill; Hiscock v Lodder [1909] 2 Ch 431 .11 Pearson v Pearson (1802) 1 Sch & Lef 10 ; Shirt v Westby (1808) 16 Ves 393; 33 ER 1033. However, this exception is not applicable if the legacy is expressed to be payable at a date after the death of the testator (Adams v Lavender (1824) MCle & Yo 41; 148 ER 317), or if the legacy is expressed to be merely payable out of the proceeds of the sale of realty: Gough v Bult (1848) 16 Sim 323; 60 ER 898 .12 Sinclair v Young (1887) 14 VLR 721; Re Lewis (1905) 1 Tas LR 41 ; Re Pollock; Pugsley v Pollock [1943] Ch 338 ; Re Gyles; Gibbon v Chaytor [1907] 1 IR 65 ; Re McGeorge (decd); Ratcliff v McGeorge [1963] Ch 544 .13 (QLD) Succession Act 1981 s 52(1)(e)(i) (interest runs from 12 months after death), 52(1)(e)(ii) (in the case of a legacy payable at a future time pursuant to a will, interest runs from the date it is payable), 52(1A) (as to legacies on which interest runs from the date of death).14 (ACT) Administration and Probate Act 1929 s 55A (NT) Supreme Court Rules r 78.04 (NSW) Uniform Civil Procedure Rules 2005 r 46.18 (VIC) Supreme Court (General Civil Procedure) Rules 2005 r 78.05 (WA) Administration Act 1903s 143A. As to the rate at which interest is payable see [395-4700]. 15 Re Wyles; Foster v Wyles [1938] Ch 313 . See also (SA) Administration and Probate Act 1919 s 120A(2).16 As to annuities see [395-4610]. As to interest on annuities see [395-4610] note 10.17 Permanent Trustee Co of New South Wales Ltd v Royal Prince Alfred Hospital (1944) 62 WN (NSW) 137 ; Re Hall (decd); Barclays Bank Ltd v Hall [1951] 1 All ER 1073; [1951] 1 TLR 850 .18 Once such an appropriation is made, the legatee becomes entitled to the income arising from that property but, to the extent to which that appropriation satisfies the legacy, not to further interest on its value: (ACT) Administration and Probate Act 1929 s 55A(2) (NSW) Probate and Administration Act 1898 s 84A(2). 19 Re Prince; Hardman v Willis (1935) 51 TLR 526; Re Morleys Estate; Hollenden v Morley [1937] Ch 491 .
The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4700] Rate at which interest is payable Unless the court otherwise orders or the will otherwise directs, interest is payable in the Australian Capital Territory1 at a rate determined by the Minister, and in New South Wales2 and South Australia 3 at a rate prescribed by regulation. In the Northern Territory, interest at the prescribed rate is allowed on each legacy where the court directs an account of legacies, unless the will, a codicil or the court directs otherwise.4 In Queensland, interest is payable at the prescribed rate, or at such other rate as the will provides, or as the court either generally or in any specific case determines.5 In Tasmania, interest is payable at the prescribed rate from the end of one year after the testators death, unless otherwise ordered or unless any other time of payment or rate of interest is directed by the will.6 In Victoria, where a judgment directs an account of legacies, subject to any direction in the will or codicil or a court order, interest is payable on each legacy at the prescribed rate from the end of one year after the testators death.7 In Western Australia, interest is payable at the prescribed rate or such other rate as may be directed by the will or ordered by the court directing an account of legacies.8 Notes 1 (ACT) Administration and Probate Act 1929 s 55A(1) (currently five per cent per annum: Administration and Probate (Interest Rate on Legacy) Determination 1992 DI 1992-187).2 (NSW) Probate and Administration Act 1898 s 84A(1). Interest is to be paid at the relevant rate: the rate that lies 2% above the cash rate last published by the Reserve Bank of Australia before 1 January in the relevant calendar year, ibid s 84A(3).3 (SA) Administration and Probate Act 1919 s 120A(1). (SA) Administration and Probate Regulations 2009 reg 3(1)(a), 3(1)(b) fixes a rate for each half of the financial year respectively.4 (NT) Supreme Court Rules r 78.04 (12 per cent per annum).5 (QLD) Succession Act 1981 s 52(1)(e) (8 per cent per annum).6 (TAS) Supreme Court Rules r 960. The Prescribed rate of interest for present purposes is defined in (TAS) Supreme Court Rules r 5A(1) as: the last cash rate published by the Reserve Bank of Australia before 1 January in that year. See In the Will of Richards (decd); Millar v Joseph (unreported, SC(TAS), Crawford J, M11 of 1992, 12 August 1992, BC9406284).7 (VIC) Supreme Court (General Civil Procedure) Rules 2005 r 78.05.8 (WA) Administration Act 1903 s 143A (5 per cent per annum). The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4705] Fund from which interest is paid Interest on legacies1 is payable from the residue of the estate.2 Specific questions of apportionment of the liability between life tenants and remaindermen arise where the residue is settled and contains an income component accruing to the estate.3 Where the delay in the distribution is due to the default of the personal representative, he or she may be ordered to pay damages or interest by way of compensation.4 Such payments,
however, are due to the estate5 and will themselves fall into residue. Notes 1 As to the assets from which the legacies themselves may be paid see [395-4270].2 To the extent to which it can be said that such interest is a debt or testamentary expense, it may be that, in those jurisdictions which have legislated for an order of application of assets towards payment of those debts, it is payable in the first place out of assets undisposed of by any will see [3954320]-[395-4355]. However, it is said that the basis on which interest was allowed on legacies at all was to prevent the unjustifiable benefit which would otherwise fall to the residuary beneficiaries from interim earnings of the estate merely because there had been a delay in administration or distribution see Halsburys Laws of England, 4th ed, Vol 17(2), Butterworths, 2000, para 499.3 As to the rule in Allhusen v Whittell see [395-4815].4 Re Tankard; Tankard v Midland Bank Executor and Trustee Co Ltd [1942] Ch 69; [1941] 3 All ER 458 . See also (QLD) Succession Act 1981 s 52(2) and the Charter of Justice pl (xvii).5 Re Tankard; Tankard v Midland Bank Executor and Trustee Co Ltd [1942] Ch 69 at 73; [1941] 3 All ER 458 per Uthwatt J ; Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69; 62 ALJR 240 , especially at (CLR) 581-2 per Deane J. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4710] Right to intermediate income A specific legacy 1 carries with it all income derived by the estate2 in respect of it since the testators death. 3 While a contingent general legacy usually4 does not carry interest until the event on which it is contingent occurs,5 legislation in all jurisdictions except the Northern Territory and Tasmania provides that contingent or future specific or residuary bequests and devises do carry their intermediate income, unless that income has been otherwise disposed of 6 by the will.7 Notes 1 As to specific legacies see [395-4265].2 Subject to any provision in any will, the apportionment legislation operating in all jurisdictions other than the Northern Territory determines the extent to which income derived by any item of estate property is to be treated as corpus or as intermediate income of the estate see [395-4300].3 Barrington v Tristram (1801) 6 Ves 345; 31 ER 1085 ; Re West; West v Roberts [1909] 2 Ch 180 .4 If the testator directs that a contingent general legacy is to be severed from the rest of the estate for the benefit of the beneficiary, that legacy does carry its intermediate income: Dundas v Wolfe Murray (1863) 1 Hem & M 425; 71 ER 185; Re Woodin; Woodin v Glass [1895] 2 Ch 309 , CA. If, however, the severance is merely for the convenient administration of the estate, the legacy does not carry the intermediate income: Re Judkins Trusts (1884) 25 Ch D 743 .5 In the Will of Kermode (decd) (1928) 23 Tas LR 21 ; Re Gertsman (decd) [1966] VR 45 ; Wyndham v Wyndham (1789) 3 Bro CC 58; 29 ER 407.6 (ACT) Wills Act 1968 s 30A (NSW) Conveyancing Act 1919 s 36B (QLD) Succession Act 1981 s 33H (SA) Trustee Act 1936 s 33(3) (VIC) Wills Act 1997 s 38 (WA) Property Law Act 1969 s 118(1) (the section also provides that, for the purpose, any
possibility that the bequest may be void for perpetuity is to be disregarded: ibid s 118(3)). 7 The qualification that any other disposal must be by will does not expressly appear in the legislation of New South Wales, South Australia or Western Australia.
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(H) Refunding The paragraph below is current to 28 July 2011 [395-4715] Refunds claimed by a personal representative from a legatee A payment made by a personal representative to a beneficiary implies an admission by the personal representative that the assets of the estate are sufficient for the purposes of administration and distribution1 and, where the distribution is made with notice of an actual debt, the personal representative is estopped from recalling the payment,2 and is also unable to have recourse for the purpose to any part of the estate which he or she may have severed from rest of the estate in favour of the legatee.3 However, where the legacy is paid away with notice of a potential liability in respect of the property the subject of the legacy, but which had not become an actual debt at the date of payment, the personal representative retains the right of refunding,4 but without interest.5 In favour of a creditor or other beneficiary, the personal representative must make good the unpaid sum personally.6 If the personal representative is insolvent, or action against him or her is unsuccessful, the unpaid or underpaid legatee may be entitled to sue the overpaid legatee to recover the unpaid sum.7 Notes 1 Orr v Kaines (1750) 2 Ves Sen 194; 28 ER 125. See, however, Herbert v Badgery (1894) 10 WN (NSW) 128 (citing Postlethwaite v Mounsey (1842) 6 Hare 33n; 67 ER 1070) where it was held that the mere payment of a legacy will not necessarily amount to an admission of assets, particularly when the legacy is simply a share of residue.2 Orr v Kaines (1750) 2 Ves Sen 194; 28 ER 125; Jervis v Wolferstan (1874) LR 18 Eq 18 at 25; [1874-80] All ER Rep Ext 1933; (1874) 30 LT 452 ; Whittaker v Kershaw (1890) 45 Ch D 320 . See also Re Diplock; Diplock v Wintle [1948] Ch 465 at 487; [1948] 2 All ER 318 .3 Fraser v Murdoch (1881) LR 6 App Cas 855; 45 LT 417; Fenwicke v Clarke (1862) 4 De GF & J 240; 45 ER 1176.4 Whittaker v Kershaw (1890)
45 Ch D 320 .5 Jervis v Wolferstan (1874) LR 18 Eq 18; [1874-80] All ER Rep Ext 1933; (1874) 30 LT 452 ; Re Diplock; Diplock v Wintle [1948] Ch 465; [1948] 2 All ER 318 .6 Orr v Kaines (1750) 2 Ves Sen 194; 28 ER 125; Re Diplock; Diplock v Wintle [1948] Ch 465 at 487; [1948] 2 All ER 318 .7 As to the nature and extent of this right see [395-4725]. The paragraph below is current to 28 July 2011 [395-4720] Right to equalise out of subsequent payments Notwithstanding the inability to sue a legatee to recover an overpayment,1 the personal representative is entitled, out of future sums otherwise payable to that legatee in the course of administering the estate or its trusts, to retain money for the purpose of correcting the error.2 There is no general rule3 that the representative is prohibited from claiming such an adjustment in his or her favour merely by having been responsible for the mistake.4 Notes 1 As to refunds claimed from a legatee see [395-4715].2 Harris v Harris (1919) 20 SR (NSW) 61; 37 WN (NSW) 10 ; Livesey v Livesey (1827) 3 Russ 287; 38 ER 583; Dibbs v Goren (1849) 11 Beav 483; 50 ER 904 .3 However, where the trustee is also the short-paid beneficiary and knew that the other legatees were being overpaid, the right to equalisation is not available at law or in equity: Re Horne; Wilson v Cox Sinclair [1905] 1 Ch 76 .4 Re Ainsworth; Finch v Smith [1915] 2 Ch 96 ; Re Reading; Edmonds v Reading (1916) 60 Sol Jo 655. The paragraph below is current to 28 July 2011 [395-4725] Refunding between legatees An unpaid or underpaid legatee may usually recover the shortfall from any other legatee to whom the relevant sum was paid,1 but the action cannot be brought unless the legatee has first exhausted his or her remedies against the personal representative whose error caused the shortfall.2 Recovery is not available: (1) against the earlier legatee where the shortfall arose because of default by the personal representative after the earlier legatee was paid;3 (2) where the payment was made pursuant to a subsequently corrected order of the court;4 or (3) where the underpaid legatee is also the trustee making the payments and knew that the other beneficiaries were being overpaid.5 Recovery from the personal representative may also not be available after distribution following the expiration of statutory notices of intention to distribute given by the personal representative, but the legislation giving this protection to the personal representative generally preserves the right of the unpaid beneficiary to recover from the overpaid beneficiary.6 An action for recovery may be brought in consequence of an intestacy by a next-of-kin whose existence was not known at the time of distribution.7 Where the beneficiary knowingly receives more than the correct share, he or she is liable to account for mesne profits, principal and interest.8
Notes 1 Ministry of Health v Simpson (Diplocks Case) [1951] AC 251; [1950] 2 All ER 1137 .2 Ministry of Health v Simpson (Diplocks Case) [1951] AC 251; [1950] 2 All ER 1137 .3 Ministry of Health v Simpson (Diplocks Case) [1951] AC 251; [1950] 2 All ER 1137 .4 Harris v Harris (1919) 20 SR (NSW) 61; 37 WN (NSW) 10 .5 Re Horne; Wilson v Cox Sinclair [1905] 1 Ch 76 . The exception does not apply in the absence of knowledge of the overpayments: Re Robertson (decd) [1953] VLR 685; [1954] ALR 53 (distributions were made in conformity with legal advice given to the representatives); Macphillamy v Fox (1932) 32 SR (NSW) 427; 49 WN (NSW) 191 (overpayments made under a mistake common to the trustee and the other legatees).6 As to such notices and their effect see [395-4205]-[395-4235], particularly [3954210].7 David v Frowd (1833) 1 My & K 200; 39 ER 657 ; Sawyer v Birchmore (1836) 1 Keen 391; (1836) 48 ER 357 .8 Davies v National Trustees, Executors and Agency Co of Australasia Ltd [1912] VLR 397 (but not interest on mesne profits). The paragraph below is current to 28 July 2011 [395-4730] Right of creditors to refunding from a legatee An unpaid creditor may follow assets of the estate paid to any1 legatee2 and may also recover the value of its debt from any payment made to a legatee.3 Because this right to recover is sourced solely in equity, the creditors claim may be met by any answer affording a good equitable defence.4 A right of action may also be available to recover, in specie, a legacy which has been wrongfully or erroneously paid to a legatee.5 Claims, whether in personam or in rem, may be barred by the operation of legislation as to limitation of actions.6 Notes 1 Davies v Nicolson (1858) 2 De G & J 693; 44 ER 1158. Where fewer than all legatees pay such a claim, they have a right of contribution against the others (Davies v Nicolson (1858) 2 De G & J 693; 44 ER 1158) or, at least, against so many of them as are not insolvent: Conolly v Farrell (1846) 10 Beav 142; 50 ER 536; Re Peerless; Peerless v Smith (1901) 45 Sol Jo 670.2 Jervis v Wolferstan (1874) LR 18 Eq 18; [1874-80] All ER Rep Ext 1933; (1874) 30 LT 452 ; Re Diplock; Diplock v Wintle [1948] Ch 465; [1948] 2 All ER 318 .3 Jervis v Wolferstan (1874) LR 18 Eq 18 at 25; [1874-80] All ER Rep Ext 1933; (1874) 30 LT 452 (recovery from a residuary legatee); Harrison v Kirk [1904] AC 1; [1900-3] All ER Rep 680 , HL.4 Ridgway v Newstead (1861) 50 LJ Ch 889 (creditors course of conduct); Blake v Gale (1886) 32 Ch D 571 , CA (acquiescence); Harrison v Kirk [1904] AC 1; [1900-3] All ER Rep 680 , HL (affirming Ridgway v Newstead (1861) 50 LJ Ch 889). Delay by a creditor does not necessarily amount to laches: Re Eustace; Lee v McMillan [1912] 1 Ch 561; (1912) 106 LT 789 . See also Re Diplock; Diplock v Wintle [1948] Ch 465; [1948] 2 All ER 318 (the principles of refunding are a creature of equity).5 Such actions in rem are the subject of the doctrine of tracing see restitution [370-475]-[370-485], [370780], [370-785].6 See limitation of actions [255-325].
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(5) RESIDUARY ESTATE
(A) Meaning of Residuary Estate The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4785] What is comprised in residue under a will A general testamentary gift of residue by will1 includes, firstly, so much of the testators estate 2 and the accretions to it since death as the testator has not otherwise effectively disposed of 3 and, secondly, non-residuary gifts4 of personalty5 and realty6 made by the will but which have lapsed or failed for any reason. It is immaterial that the testator did not believe that certain property would not be included in a gift of residue.7 Until the residue is ascertained, the interest of a residuary beneficiary is a chose in action, capable of being invoked for any purpose connected with the proper administration of the estate, and located in the jurisdiction in which the deceased was domiciled.8 Once the residue is ascertained, the right of each residuary beneficiary to it is in the nature of a proprietary interest.9 The residuary beneficiary has a right to have the residue ascertained with due diligence and either paid over or settled, as the case may require.10 Notes 1 Such a gift is sometimes referred to as a residuary legacy or residuary bequest: see, for example, Byrne v Dunne (1910) 11 CLR 637; [1912] AC 407; (1910) 17 ALR 457 .2 A gift of residue includes property over which the deceased had a general power of appointment (being a mere power), if that power has not been otherwise exercised: National Trustees, Executors & Agency Co of Australia Ltd v Crooke (1898) 24 VLR 353 . As to general powers of appointment see [395-4450]. See also perpetuities and accumulations [310-200]-[310-220]. This principle has been given statutory force in New South Wales and Queensland: (NSW) Succession Act 2006 s 37
(QLD) Succession Act 1981 s 28(d) (these provisions extend to all general gifts, not just gifts of residue). As to the statutory modification of the common law see [395-4080]. As to powers which, on their true construction, are trust powers (that is, powers which the donee is under a duty to exercise) see [395-4795]. 3 Re Bagot; Paton v Ormerod (1893) 3 Ch D 348. See Byrne v Dunne (1910) 11 CLR 637 at 664; [1912] AC 407; (1910) 17 ALR 457 per Higgins J (There is a time-honoured presumption that a man who sits down to make a will intends to dispose of all his property and this presumption against a chasm is especially applicable to a gift of residue). See also Stokes v Heron (1845) 2 Cl & Fin 161; 8 ER 1361 at 1374-5 per Cottenham LJ; Re OMullane (decd) [1955] VLR 217 . See also the definition of residuary estate in (QLD) Succession Act 1981 s 55.4 As to failed gifts of residue see [395-4790].5 Blight v Hartnoll (1883) 23 Ch D 218 (gift failed for remoteness); Smith v Layh (1953) 90 CLR 102; [1953] ALR 412 (beneficiary predeceased testator); Re Reynolds Trusts (No 2) [1942] QWN 40 (presumption that beneficiary died before deceased); Re Dolling (decd) [1956] VLR 535 (presumption that beneficiary died before deceased). The onus of proving that a legacy or other priority gift has failed lies on those who are interested in the residue: In the Estate of Tolley (decd) (1972) 5 SASR 466 at 474 per Walters J.6 At common law, a general residuary devise (legacy of land) was in effect a specific disposition only of such real estate as the testator had at the date of the will, and had not left to anyone else: Freme v Clement (1881) 18 Ch D 499; 50 LJ Ch 801 at 807; 44 LT 399 per Jessel MR. Legislation has now assimilated the law of residuary devises of land with residuary gifts of personalty: (ACT) Wills Act 1968 s 25 (NT) Wills Act 2000 s 29 (NSW) Succession Act 2006 s 31 (QLD) Succession Act 1981 s 33G (SA) Wills Act 1936 s 28 (TAS) Wills Act 2008 s 45 (VIC) Wills Act 1997 s 35(1) (WA) Wills Act 1970 s 26(1)(b). Except in Victoria, where the legislation specifically excludes a devise in the nature of the exercise of any power of appointment ((VIC) Wills Act 1997 s 35(3)), these provisions extend to the exercise of a general power of appointment (Freme v Clement (1881) 18 Ch D 499; 50 LJ Ch 801; 44 LT 399 ), but not to the exercise of a special power of appointment: Holyland v Lewin (1884) 26 Ch D 266 . As to special powers see [395-4555]. See also perpetuities and accumulations [310-225]-[310-235]. 7 Blight v Hartnoll (1883) 23 Ch D 218 .8 Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] ALR 803; BC6400550 , PC; New Zealand Insurance Co Ltd v Cmr of Probate Duties [1973] VR 659 . It springs from the executors duty to administer the assets properly; the beneficiaries, as a class, may have an interest in the whole estate, but no single beneficiary has an individual interest in any part of the estate until administration is completed (Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; 96 ALR 327; 64 ALJR 651; BC9002922 ; Smith v Layh (1953) 90 CLR 102; [1953] ALR 412 .9 New Zealand Insurance Co Ltd v Cmr of Probate Duties [1973] VR 659 ; Perpetual Trustee Co Ltd v Cmr of Stamp Duties (NSW) [1977] 2 NSWLR 472 . See, however, Re Young; Trustees Executors and Agency Co Ltd v Young [1942] VLR 4 .10 Wightwick v Lord (1857) 6 HL Cas 217 at 226; 10 ER 1278.
As to what constitutes due diligence in administering an estate see Re Tankard; Tankard v Midland Bank Executor and Trustee Co Ltd [1942] Ch 69; [1941] 3 All ER 458 . As to the executors year see [395-4190]. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4790] Failure of gifts of residue Where a gift of residue or of a share of residue 1 is, for any reason, unable to take effect, the failing share does not fall back into the residue unless there is a gift over of that residue or share of residue,2 or the will directs that it should fall back into residue.3 Rather, except where the will evidences an intention that it should be taken by the executor beneficially, there is an intestacy in respect of it,4 and it passes in accordance with the rules of intestate succession.5 A legacy given out of residue also passes as on intestacy, if it fails,6 unless there is a gift over of the residue being a gift which, on its true construction, carries the whole of the residue.7 English common law previously regarded the appointment of an executor as a gift to that executor of any residue not disposed of, although equity would require him or her to hold it as trustee where the will8 fairly suggested that such was the testators intention.9 While the common law rule no longer forms part of the law, the equitable principle remains effective by virtue of legislation in some jurisdictions.10 Legislation in the Northern Territory and Queensland deems a residuary bequest of realty or of personalty as including both realty and personalty, and will therefore save from lapse an accidental omission to include reference to both.11 Notes 1 In Queensland, the failure of a bequest of a fractional share in residue (but not of the whole of the residue: In the Will of Harvey [1990] 2 Qd R 508 ) is saved from lapse by statute, and takes effect in favour of the other residuary beneficiaries, proportionally where appropriate: previously (QLD) Succession Act 1981 s 29(1)(b) (repealed) and now ibid s 33P(1). The section does not apply, however, where the will fails to deal with a share at all: Re Olive [1989] 1 Qd R 544 . Also does not apply if there is a contrary intention in the will: (QLD) Succession Act 1981 s 33P(2). For the meaning of residue see [395-4785]. (NT) Wills Act 2000 s 41(2). The Queensland and Northern Territory provisions provide in effect for statutory accrual. 2 Any such gift over in default must be intended to be substitutional, or it will be ineffective in avoiding lapse: Re Matthews [1958] VR 194 ; Re Young [1923] VLR 6 ; Plummer v Hood (1880) 6 VLR (E) 159 ; Re Roberts Will (1929) 29 SR (NSW) 562 .3 Where there is a direction that a lapsed (or revoked) share is to fall back into residue, it operates as a gift of that lapsed share to the other residuary legatees: Re Allan; Dow v Cassaigne [1903] 1 Ch 276 ; Re Palmer; Palmer v Answorth (1893) 3 Ch D 369 .4 Smith v Layh (1953) 90 CLR 102; [1953] ALR 412 ; Burns Philp Trustee Co Ltd v Elliott [1976] 1 NSWLR 14 ; Smith v Smith (1892) 14 ALT 104; Re Mitchner (decd); Union Trustee Co of Australia Ltd v A-G(Cth) (No 2) [1922] St R Qd 252 (death of legatee); Joy v Curator of the Estates of Deceased Persons (1895) 21 VLR 620; 1 ALR 109 (failure of condition); Rex v Skinner [1972] 1 NSWLR 307 ; Re Scarfe (1904) SALR 15 (gift saved by the terms of the will); Pettit v Mowder [1957] St R Qd 493 (failure of condition); In the Will of Whittingham (1900) 22 ALT 66; In the Will and Codicil of Stead [1908] VLR 10
(death of legatee); In the Estate of MacGregor (decd) (1975) 11 SASR 424 ; Re Olive [1989] 1 Qd R 544 ; In the Will of Harvey [1990] 2 Qd R 508 . See also (QLD) Succession Act 1981 s 34(1)(a) (para (a) in definition of residuary estate). Where the interest which fails is not in the whole of the estate, it is referred to as a partial intestacy.5 As to the rules of intestacy see [3951565]-[395-2095].6 Lloyd v Lloyd (1841) 4 Beav 231; 49 ER 328; Green v Pertwee (1846) 5 Hare 249; 67 ER 905 . See, however, Re Judkins Trusts (1884) 25 Ch D 743 at 750 .7 Re Parker; Stephenson v Parker [1901] 1 Ch 408 .8 Juler v Juler (1860) 29 Beav 34; 54 ER 537. Extrinsic evidence was not permitted: Love v Gaze (1845) 8 Beav 472; 50 ER 186.9 See, for example, Urquhart v King (1802) 7 Ves 225; 32 ER 91.10 (VIC) Administration and Probate Act 1958 s 53(b) (WA) Administration Act 1903 s 13(2). 11 (NT) Wills Act 2000 s 41(1) (QLD) Succession Act 1981 s 33O(1). The paragraph below is current to 28 July 2011 [395-4795] Powers of appointment in the nature of a trust A deceased who is invested with a power of appointment of property upon such terms as impose upon him or her, as donee of the power, a duty to exercise the power1 must do so. In default of exercise of the power, the property which is subject to the power will pass, on the donees death and as part of his or her estate, to the objects of the power.2 Notes 1 As to the vesting in a personal representative of property which is held by the deceased under a mere power of appointment (that is, falling short of a duty to appoint), see [395-4080]. As to its divestiture from the personal representative see [395-4785] note 2.2 Permanent Trustee Co v Redman (1916) 17 SR (NSW) 60 .
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(B) Residuary Estate Given Absolutely The paragraph below is current to 28 July 2011
To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4800] Residuary legatees right to property in specie If a personal representative proposes to sell estate property for the purposes of distribution, a residuary beneficiary may require transfer of that property in specie upon payment to the personal representative of an amount sufficient to meet the proportion of the estates debts and expenses charged upon it.1 The statutory right in some jurisdictions, for a legatee to apply to the court for a summary order for a legacy2 also extends to residuary bequests.3 Notes 1 In the Will of OBrien; Raftis v OBrien [1924] VLR 262 . See also [395-4995]-[395-5005] (appropriation).2 As to summary applications for legacies see [395-4640].3 (ACT) Administration and Probate Act 1929 s 57 (NT) Administration and Probate Act 1969 s 88 (NSW) Probate and Administration Act 1898 s 84 (WA) Administration Act 1903 s 42(b). For the purpose of these provisions, residuary bequest does not include a remainder expectant on a life estate: In the Will of Clinton (1910) 10 SR (NSW) 465 . The paragraph below is current to 28 July 2011 [395-4805] Ascertaining the interest to be taken Where a gift over of residue depends upon the non-fulfilment of conditions attaching to the primary gift and it is uncertain whether or not those conditions have been or will be satisfied, the directions of the court may be sought in aid of determining how and when the property might vest.1 If a testator purports to deal successively with the same residue, but in favour of different beneficiaries, the gift secondly described is regarded as substitutionary and takes effect only if the first fails.2 Notes 1 Re Lane [1940] QWN 22 . This accords with the general principle that the advice and direction of the court may be sought see [395-5995]-[395-6035].2 Re Robertson (decd) [1966] VR 196 . The paragraph below is current to 28 July 2011 [395-4810] Per stirpes and per capita Where there is a gift to a single class, identified by the members of the class, being the children of any one of several named persons, the prima facie rule1 is that such class takes per capita,2 and not per stirpes,3 and it is a rule that should not be lightly departed from.4 The relevant consideration is the intention of the testator, and the rule will give way to any sufficient indication5 of a contrary intention, but the court cannot act on a mere surmise that the intention was a gift per stirpes.6 Application of a presumption in favour of per stirpital division in a family distribution is limited at least to cases where the will would allow a true division per stirpes.7 Where, on its true construction, a gift to the children of the primary beneficiaries is substitutional, that gift must be taken by those children per stirpes.8 In the absence of a contrary intention in the will,9 beneficiaries within each class in a per stirpital distribution take per capita between themselves, irrespective of the degree in which they stood in
relation to the testator.10 Where issue are descendants of two stocks, they are entitled to take the per stirpital share accruing to them through each stock.11 Notes 1 King v Perpetual Trustee Co (Ltd) (1955) 94 CLR 70 ; Equity Trustees Executors and Agency Co Ltd v Green (1895) 21 VLR 618 ; Bruyn v Perpetual Trustee Co Ltd (1974) 131 CLR 387 ; Re Gill (decd) [1959] Qd R 373 (gift equally to A, B and to children of C and of D held to be per capita notwithstanding gift over provision for per stirpes distribution between children of A or B if they predeceased testator); In the Estate of Hawkins (decd) [1961] SASR 344 (gift also held per capita, notwithstanding per stirpes provisions applying if other members of the class should predecease testator); Sumpton v Downing (1947) 75 CLR 76 per Dixon J at 88 ; Urquhart v Trustees Executors & Agency Co (1886) 8 ALT 36; Re Thorp [1937] VLR 262 . See also Perpetual Trustee Co (Ltd) v Pryde (1948) 49 SR (NSW) 203 ; Re Jones [1910] VLR 306 ; Re Viney (1917) 13 Tas LR 72 ; In the Will of Moore (decd) [1963] VR 168 ; In the Estate of Coombe (decd) [1965] SASR 391 ; Re Himmelhoch (1928) 29 SR (NSW) 90 ; Re McInnes (decd); Trustees Executors and Agency Co Ltd v McInnes [1925] VLR 496; (1925) 31 ALR 267; 47 ALT 1 ; Re Schlink (decd) [1969] SASR 331 ; Re Moran (decd) [1950] SASR 209 ; Re OMullane (decd) [1955] VLR 217 ; Re Hughes [1968] VR 28 ; Re Prests Will (1930) 25 Tas LR 128 . Compare Re Palmer; George v McIntyre (1902) 2 SR (NSW) (Eq) 200 (will directed division evenly and equally among all my children or their heirs share and share alike); Young v Hall (1872) 3 VR (E) 162; Re Baulderstone [1928] SASR 262 .2 Multiple beneficiaries are said to take per capita (or per head) when each beneficiary takes a sum, or a share of the gift, which is identical to that taken by each other beneficiary see Encyclopaedic Australian Legal Dictionary.3 Multiple beneficiaries are said to take per stirpes (or by stocks) when they take equally, not across their whole number, but according to their respective numbers within nominated sub-classes (typically, as respective issue of children or other relatives of the testator). Thus, where A has three children and B has two children, a gift of $600 equally to the children of A and the children of B means that, per capita, each child takes $120 ($600 divided by 5) but, per stirpes, the children of A each take $100 ($300 divided by 3) and the children of B each take $150 ($300 divided by 2), the initial division of the total fund having been made across the number of head classes (in this case, two (being A and B)) see Encyclopaedic Australian Legal Dictionary. See also McDonnell v Neil (1951) 82 CLR 275; [1951] AC 342; (1951) 25 ALJ 74 , PC; In the Estate of Auerbach (decd) [1974] 1 NSWLR 57 ; In the Estate of Durdin (decd) [1957] SASR 199 ; Re Young [1925] VLR 672 .4 King v Perpetual Trustee Co (Ltd) (1955) 94 CLR 70 at 84 .5 There have been different views of what is sufficient for the purpose see Equity Trustees Executors and Agency Co Ltd v Green (1895) 21 VLR 618 (will yield to a very slight indication of [contrary] intention); King v Perpetual Trustee Co (Ltd) (1955) 94 CLR 70 (not lightly departed from); Parremore v Gangell (1962) 107 CLR 118 ; In the Estate of Auerbach (decd) [1974] 1 NSWLR 57 ( such descendants to take in equal shares their deceased parents share); Young v Hall (1872) 3 VR (E) 162 (capricious result followed from not applying per stirpes distribution); Re Carrig [1972] VR 655 (consistent use throughout the will of words pointing to per stirpes distribution); Re Crosby (1925) 21 Tas LR 20 (proviso in will read subject to substantive clause). Distribution per stirpes is not necessarily indicated by the testators use of the word between (Re Ninnes (1920) SALR 480; Re OMullane (decd) [1955] VLR 217 ), or the word respectively: Re Ninnes (1920) SALR 480.6 Equity Trustees Executors and Agency Co Ltd v Green (1895) 21 VLR 618 .7 Perpetual Trustee Co (Ltd) v Pryde (1948) 49 SR (NSW) 203 .8 Permanent Trustee Co v Redman (1916) 17 SR (NSW) 60 .9 Sumpton v Downing (1947) 75 CLR 76 at 88 per Dixon J; McDonnell v Neil (1951) 82 CLR 275; [1951] AC 342; (1951) 25 ALJ 74 ; Re Young [1925] VLR 672 .10 In the Will of Moore (decd) [1963] VR 168 ; In the Estate of Coombe (decd) [1965] SASR 391 ; Re Himmelhoch (1928) 29 SR (NSW) 90 ; Matthews v Williams (1941) 65 CLR 639; [1943] ALR 113 ; Maple-Brown v MapleBrown (1968) 87 WN (Pt 1) (NSW) 464 ; In the Estate of Durdin (decd) [1957] SASR 199 ; In the Estate of Shipard (decd) [1960] SASR 231 ; Re Young [1925] VLR 672 .11 Matthews v Williams (1941) 65 CLR 639; [1943] ALR 113 .
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(C) Residuary Estate Settled The paragraph below is current to 28 July 2011 [395-4815] Rule in Allhusen v Whittell Although it has been displaced by statute in the other jurisdictions,1 the rule known as the rule in Allhusen v Whittell 2 applies in South Australia and Tasmania.3 The rule requires that, as between the life tenant and the remainderman of a settled residuary estate, the liabilities which must be met or provided for before the residuary estate can be ascertained are to be treated as discharged neither wholly out of income nor wholly out of corpus but in just proportions out of both.4 The rule, which applies unless a contrary intention is indicated by the will or may be inferred by the nature of the property or the circumstances of the case, rests upon a prima facie presumption that a gift of income to the life tenant is intended to comprise the income of so much of the estate as exceeds what is needed to meet the testators liabilities and the non-residuary dispositions of his or her will, rather than the income of the entire estate.5 An annuity6 is apportionable under the rule if the testator was under a personal liability to pay it. The rule does not apply, however, where though charged upon property forming part of the deceaseds estate, it is not a personal liability of the testator and therefore not a liability which must be discharged before the settled residue is ascertained.7 Although the rule cannot apply to an estate which is wholly insolvent, there is no reason why it should not be applied where an insolvency at the date of death is, by an increase in the value of assets or by income, turned into a condition of solvency.8 Notes 1 As to statutory application of income and corpus of settled residuary property see [395-4820].2 Allhusen v Whittell (1867) LR 4 Eq 295.3 For examples of the application of the rule see Re Angas (1906) SALR 140; Lilly v West Australian Trustee Executor and Agency Co Ltd (1911) 13 CLR 416 ; Re Wyld (1912) SALR 190; In the Will of Davidson [1917] VLR 748 ; Re Scott (decd) (1919) SALR 74; In the Will of Thomson [1927] VLR 98 ; Re Bonds Will (1936) 30 Tas LR 117 ; Re Gellibrands Will; Murdoch v Gellibrand (1939) 34 Tas LR 1.4 Hassell v Perpetual Executors Trustees & Agency Co (WA) Ltd (1952) 86 CLR 513; 26 ALJ 501 . This statement of
the rule was adopted in Princess Anne of Hesse v Field [1963] NSWR 998 at 1017 per Jacobs J .5 Hassell v Perpetual Executors Trustees & Agency Co (WA) Ltd (1952) 86 CLR 513 at 526; 26 ALJ 501 .6 For the definition of annuity see [395-4610].7 Hassell v Perpetual Executors Trustees & Agency Co (WA) Ltd (1952) 86 CLR 513 at 526; 26 ALJ 501 ; Re Darby; Darby v MacGregor [1939] Ch 905 .8 Princess Anne of Hesse v Field [1963] NSWR 998 at 1016 per Jacobs J . The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4820] Statutory application of income and corpus of settled residuary property Similar legislation in most jurisdictions, governs the manner in which income from real and personal property included in a residuary gift by way of succession may be applied.1 Such income may not be applied in payment of the funeral, testamentary or administration expenses of the estate, in payment of the deceaseds debts and liabilities or of interest on them to the date of death, or in payment of legacies.2 The income may be applied in payment of interest on the funeral, testamentary and administration expenses, in payment of post-death interest on debts and liabilities, and in payment of interest on legacies where it is to be applied in priority to any other part of the estate for these purposes, and any residue of such income not appropriated in these ways is to be paid to the person for the time being entitled to the settled property.3 Income derived from property of the deceased, being property which is itself applied in payment of these expenses, liabilities or legacies and which therefore in the event does not become residue for the purposes of the residuary gift, is deemed to be income of the settled estate.4 The legislation does not affect the rights of creditors.5 Notes 1 (ACT) Administration and Probate Act 1929 s 41D (NT) Administration and Probate Act 1969 s 58 (NSW) Probate and Administration Act 1898 s 46D (the section is expressed to only affect the rights of beneficiaries between themselves) (QLD) Trusts Act 1973 s 78 (the section is expressed to only affect the rights of beneficiaries between themselves). The prohibition of application of the income to payment of pre-death income is implicit in the language of the section: ibid s 78. The section does not operate to prohibit payment of any executors commission on the income, nor does it apply to testamentary or administration expenses which would otherwise be payable wholly out of income: ibid s 78. (VIC) Trustee Act 1958 s 74 (the section is expressed to only affect the rights of beneficiaries between themselves). The prohibition of application of the income to payment of pre-death income is implicit in the language of the section: ibid s 74. (WA) Trustees Act 1962 s 104 (the section is expressed to only affect the rights of beneficiaries between themselves). The section does not operate to prohibit payment of any executors commission on the income, nor does it apply to testamentary or administration expenses which would otherwise be payable wholly out of income: ibid s 104. There are no equivalent provisions in the other jurisdictions. See also trusts [430-865].
2 (ACT) Administration and Probate Act 1929 s 41D(2) (NT) Administration and Probate Act 1969 s 58(2) (NSW) Probate and Administration Act 1898 s 46D(1) (QLD) Trusts Act 1973 s 78(1) (VIC) Trustee Act 1958 s 74(1) (WA) Trustees Act 1962 s 104(1). There are no equivalent provisions in the other jurisdictions. 3 (ACT) Administration and Probate Act 1929 s 41D(3), 41D(4) (NT) Administration and Probate Act 1969 s 58(3), 58(4) (NSW) Probate and Administration Act 1898 s 46D(2) (QLD) Trusts Act 1973 s 78(3) (VIC) Trustee Act 1958 s 74(2) (WA) Trustees Act 1962 s 104(3). There are no equivalent provisions in the other jurisdictions. 4 (ACT) Administration and Probate Act 1929 s 41D(5) (NT) Administration and Probate Act 1969 s 58(5) (NSW) Probate and Administration Act 1898 s 46D(3) (QLD) Trusts Act 1973 s 78(4) (VIC) Trustee Act 1958 s 74(3) (WA) Trustees Act 1962 s 104(4). There are no equivalent provisions in the other jurisdictions. 5 (ACT) Administration and Probate Act 1929 s 41D(6)(a) (NT) Administration and Probate Act 1969 s 58(6)(a) (NSW) Probate and Administration Act 1898 s 46D(4) (QLD) Trusts Act 1973 s 78(6) (VIC) Trustee Act 1958 s 74(5) (WA) Trustees Act 1962 s 104(7). There are no equivalent provisions in the other jurisdictions. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation
For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4825] Rule in Howe v Lord Dartmouth There is a rule of law, known as the rule in Howe v Lord Dartmouth,1 which requires a trustee to be impartial and not favour a beneficiary who is interested for life at the expense of any one interested in remainder or vice versa. Where residuary2 personalty3 is settled by will for the benefit of persons who are to enjoy it in succession, it is the duty of the trustee to convert into property of a permanent or income-bearing character those parts of it which are of a future or reversionary nature4 (in the interest of the tenant for life) and those parts of it which consist of wasting assets (in the interests of the persons interested in the remainder).5 Adjustments should prima facie be made between successive beneficiaries upon this basis, so that a tenant for life is entitled only to receive, not the possibly very large but temporary income from a disappearing security, leaving perhaps nothing for a remainderman, but the income which he or she would have received if there had been a due conversion into authorised securities.6 The effect of the rule has been modified in Victoria and Western Australia.7 If, at the expiration of twelve months from the testators death,8 investments which are either unauthorised9 or of a wasting, speculative or hazardous nature have not been converted, the rule at that time effects a notional conversion of those assets by requiring them to be valued at that date and for the income beneficiary to be paid a rate of interest10 on the amount of the valuation,11 in lieu of the actual income earned, the actual income itself falling into residue. 12 The rule operates subject to any contrary direction in the will.13 If an effective contrary intention is expressed or implied, the life tenant is entitled to receive the whole of the income earned from time to time on the assets forming part of the residuary estate.14 The duty to convert is displaced by: (1) a discretion given to the trustee to convert if and when considered convenient;15 (2) a discretion to retain the estate in specie16 without liability for consequential loss;17 (3) a specific postponement of the duty to convert (at least for the period of the postponement);18 (4) prohibition against exercise of an express power of sale without the life tenants consent (for any period in which that consent is not given);19 (5) a power to postpone being not just administrative but suggesting an intention that the life tenant should take the actual income;20 (6) empowering the trustee to determine what funds are to be treated as capital and what as income;21 and
(7) specifying that the life tenant should take the actual income of the fund while unconverted.22 However, the duty to convert is not displaced by a mere power to postpone exercise of a trust for conversion.23 Notes 1 Howe v Earl of Dartmouth (1802) 7 Ves 137; [1775-1802] All ER Rep 24; (1802) 32 ER 56 .2 A testamentary settlement of specific assets in succession deems the subject matter to be an investment authorised by the will and, therefore, not caught by the rule: Re Van Straubenzee [1901] 2 Ch 779 .3 The rule does not apply to realty see Re Searle [1900] 2 Ch 829 ; Re Earl of Darnley; Clifton v Darnley [1907] 1 Ch 159 ; Re Oliver; Wilson v Oliver [1908] 2 Ch 74 ; Re Spurr (1921) 18 Tas LR 44; Re Gellibrands Will; Murdoch v Gellibrand (1939) 34 Tas LR 1.4 As to the manner of making the adjustments necessary under the rule in respect of a reversionary asset see Re Chesterfields Trusts (1883) 24 Ch D 643 . These principles also apply to future assets: Re Davis (decd) [1953] VLR 639; [1953] ALR 1079 (deceaseds interest in a deceased estate); Re Lewin (decd) [1961] VR 528 (debt due to deceased and collected without interest); Re Fisher [1943] Ch 377 (deferred money due under a life assurance policy); Michael v Callil (1945) 72 CLR 509 (annuities). As to the apportionment of certain annuities in Victoria and Western Australia see [395-4830].5 Michael v Callil (1945) 72 CLR 509 at 522 per Latham CJ.6 Michael v Callil (1945) 72 CLR 509 at 522 per Latham CJ. For cases applying the rule see Re Brownell [1946] Tas SR 10 ; Re Clark v Kennedy [1946] Tas SR 25 ; Re McBride (decd) [1961] SASR 354 ; Re Wilcox [1940] SASR 217 .7 As to statutory modifications to the rules in Howe v Lord Dartmouth see [395-4830].8 Re Jones; Jones v Baxter (1929) 30 SR (NSW) 26; 46 WN (NSW) 190 ; Re Wilcox [1940] SASR 217 . The date for notional conversion is the date the duty to sell arises see [395-4635], [395-4695] notes 3 and 4. If the will specifies a different date, the valuation for notional conversion is made at that other date: Wentworth v Wentworth [1900] AC 163 . However, the valuation is made at the date of death if the property is unsaleable (Gibson v Bott (1802) 7 Ves 89; 32 ER 37 ) or there is a power to postpone sale: Re Parry [1947] Ch 23 . See also (QLD) Succession Act 1981 s 52(1A) (confirms existing rules and practice deriving from the principle of the executors year). See generally trusts [430-875], [430-4155], [430-4270].9 As to the law relating to authorised investments see trusts [430-4490]-[430-4640] (noting that in some jurisdictions the concept of authorised investments has been abandoned by legislation).10 As to the statutory rates of interest payable on legacies generally see [395-4700]. At common law, the High Court has indicated a preference for a fixed rate of interest: Re Tennant; Mortlock v Hawker (1942) 65 CLR 473 at 507-8; [1942] ALR 54; (1942) 15 ALJ 394 per Dixon J. Compare Perpetual Trustee Co Ltd v Griffin (1924) 41 WN (NSW) 150 ; Union Trustee Co of Australia Ltd v Graham (1931) 31 SR (NSW) 528 ; Re Tindal (1933) 34 SR (NSW) 8 ; Re Brownell [1946] Tas SR 10 ; Re Clark v Kennedy [1946] Tas SR 25 .11 That is, interest being the equivalent of the income which would have been available if the conversion had been effected: Hassell v Perpetual Executors Trustees & Agency Co (WA) Ltd (1952) 86 CLR 513 at 523; 26 ALJ 501 . If the income actually earned from the unconverted residue is insufficient to pay the interest, the deficiency (with interest on the arrears) is payable out of subsequent income earned by that residue: Union Trustee Co of Australia Ltd v Graham (1931) 31 SR (NSW) 528 . However, as to the position in Western Australia see [395-4830].12 Howe v Earl of Dartmouth (1802) 7 Ves 137; [1775-1802] All ER Rep 24; (1802) 32 ER 56 .13 See trusts [430-875].14 Michael v Callil (1945) 72 CLR 509 ; De Little v Byrne (1951) 84 CLR 532 at 546; [1951] ALR 922; (1951) 25 ALJ 562 ; Hassell v Perpetual Executors Trustees & Agency Co (WA) Ltd (1952) 86 CLR 513 at 523; 26 ALJ 501 ; Re Nicholson [1909] 2 Ch 111 .15 Re Pitcairn; Brandreth v Colvin [1896] 2 Ch 199; [1895-99] All ER Rep 1244; (1895) 73 LT 430 ; Re Levien; Trustees Executors & Agency Co Ltd v Levien [1937] VLR 80 .16 Re Nicholson [1909] 2 Ch 111 .17 Re Owens (decd); Public Trustee v Hedditch [1963] NSWR 1160 .18 Re Meinck [1944] SASR 202 (conversion specified to be
effected following the death of the life tenant).19 Re Walker; Walker v Walker (1901) 1 SR (NSW) Eq 237 .20 Michael v Callil (1945) 72 CLR 509 at 533 per Dixon J.21 Michael v Callil (1945) 72 CLR 509 ; Hassell v Perpetual Executors Trustees & Agency Co (WA) Ltd (1952) 86 CLR 513; 26 ALJ 501 ; De Little v Byrne (1951) 84 CLR 532 at 546; [1951] ALR 922; (1951) 25 ALJ 562 ; Swanson v Emmerton [1909] VLR 387; (1909) 15 ALR 368; 31 ALT 28 .22 Hassell v Perpetual Executors Trustees & Agency Co (WA) Ltd (1952) 86 CLR 513; 26 ALJ 501 ; Michael v Callil (1945) 72 CLR 509 ; De Little v Byrne (1951) 84 CLR 532; [1951] ALR 922; (1951) 25 ALJ 562 ; Re Levien; Trustees Executors & Agency Co Ltd v Levien [1937] VLR 80 ; Re Thomas [1891] 3 Ch 482 . See also Re Grant; Trustees Executors & Agency Co Ltd v Grant [1933] VLR 263 ; Re MacPherson (decd) (1913) SALR 207; Perpetual Trustee Co Ltd v Noyes (1925) 25 SR (NSW) 226; 42 WN (NSW) 56 .23 Re Wilcox [1940] SASR 217 ; Re Berry [1962] Ch 97 . The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4830] Statutory modifications of the rule in Victoria and Western Australia The rule in Howe v Lord Dartmouth has been negated by legislation in Western Australia, where (subject to the terms of the will) the whole of the net income actually earned by both real and personal property settled by way of succession must, notwithstanding its nature, be applied as income with no part being applied as capital.1 Furthermore, on sale of the residuary property or upon any reversionary property falling in, no part of it may be applied to pay past income.2 In Victoria and Western Australia, amounts received by the estate of a deceased person in the nature of either annuities purchased by the deceased or periodical payments under life assurance policies on the deceaseds life must be paid wholly as income and are not apportionable.3 In both jurisdictions, the legislation operates subject to the terms of the will. 4 Notes 1 (WA) Trustees Act 1962 s 105(1)(a), 105(3).2 (WA) Trustees Act 1962 s 105(1)(b).3 (VIC) Trustee Act 1958 s 75 (WA) Trustees Act 1962 s 106(1), 106(2). 4 (VIC) Trustee Act 1958 s 75(1) (WA) Trustees Act 1962 s 106(3).
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(D) Intestacy The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4835] Residue upon an intestacy The concept of the residue of a wholly intestate estate is dealt with in different ways in the various jurisdictions. In the Australian Capital Territory and Northern Territory, the legislation determines the value of an intestate estate by deducting from its gross value the amount of debts and liabilities of the estate, funeral and testamentary expenses, administration costs and expenses and any duties payable.1 Where the estate is distributable2 among persons who include the deceaseds spouse or partner,3 the value distributable among persons other than the spouse or partner is further adjusted to exclude household chattels,4 the lump-sum statutory legacy and any interest payable to the partner.5 In New South Wales, a statutory scheme provides for distribution of the intestates estate, subject to payment of funeral and administration expenses, debts and other liabilities properly payable from it.6 In Queensland, the residuary estate of an intestate is defined to mean as much of the intestates property as is available for distribution after payment of all debts7 properly payable from it.8 Where a surviving spouse or de facto spouse is entitled to a share in the estate,9 the amount distributable to others is adjusted by excluding the amount of that share.10 Distribution in South Australia11 is expressed to be of the whole of the intestate estate, 12 except where the deceased is survived by a spouse and issue,13 in which case the amount to be taken by the spouse14 is determined by reference to the net value of the estate, 15 and the amount to be taken by those issue is further defined as the balance of the value of the estate.16 Distribution in Western Australia17 is expressed to be of the whole of the intestate estate, 18 except where the deceased is survived by a husband, wife or de facto partner, and is also survived by issue,19 in which case the amount to be taken by the husband, wife or de facto partner20 is determined by reference to the net value of the estate, 21 and the amount to be taken by those issue is further defined as the balance of the value of the estate.22 In Western Australia, income derived by the estate from the property of a deceased person is distributable to the same persons and in the same proportions as the corpus of the estate.23 Notes 1 (ACT) Administration and Probate Act 1929 s 49(3) (NT) Administration and Probate Act 1969 s 66(3).
2 As to the statutory schemes of distribution of an intestate estate generally see [395-1565]-[3951665]. As to the scheme operating in the Australian Capital Territory, see (ACT) Administration and Probate Act 1929 Sch 6. As to the scheme operating in the Northern Territory see (NT) Administration and Probate Act 1969 Sch 6.3 In the Northern Territory the right to inherit on intestacy is extended to the spouse and the de facto partner: ibid s 66, Sch 6. The definition of spouse may (depending upon the circumstances) extend to a customary marriage or other partner see [395-1605]. In the Australian Capital Territory partner is defined to include the spouse: (ACT) Administration and Probate Act 1929 s 44(1).4 (ACT) Administration and Probate Act 1929 s 49(2) (NT) Administration and Probate Act 1969 s 66(2). 5 (ACT) Administration and Probate Act 1929 s 49(4) (interest payable on legacy to partner) (NT) Administration and Probate Act 1969 s 66(4). There is no interest payable on the statutory legacy to a spouse in the Northern Territory see [3951770]. 6 As to the scheme of distribution operating in New South Wales see (NSW) Succession Act 2006 Ch 4.7 Debts include funeral, testamentary and administration expenses, debts and other liabilities payable out of the estate: (QLD) Succession Act 1981 s 5.8 Ibid s 34(1). As to the statutory scheme of distribution in Queensland: ibid Sch 2.9 Ibid Sch 2 Pt 1.10 The calculation of the residue is affected by the number of surviving spouses and children: ibid Sch 2 Pt 1 items 1, 2.11 As to the statutory scheme of distribution in South Australia see (SA) Administration and Probate Act 1919 s 72G.12 Ibid ss 72B(1) (definition of intestate estate), 72G .13 Ibid s 72G(1)(b)(i).14 Ibid ss 72H(1) (personal chattels), 72G(1)(b)(i)(B) . There is no spousal entitlement to interest on a share of an intestate estate in South Australia see [395-1770].15 As to the definition of value of an intestate estate see ibid s 72F.16 Ibid s 72G(1)(b)(ii).17 As to the scheme of distribution in Western Australia see (WA) Administration Act 1903 s 14.18 Ibid s 14(1).19 Ibid ss 14(1) Table item 2, 15.20 Ibid s 14(1) Table items 1 (household chattels), 2(b) (statutory legacy and interest). Interest is payable at the rate of five per cent per annum from the date of death, and is payable primarily from income earned by the estate: ibid s 14(4). Ibid s 14 must be read in conjunction with ibid s 15.21 As to the definition of value of an intestate estate see ibid s 14(2).22 Ibid s 14(1) Table items 2, 3. Before determining the final value of the balance of the estate, allowance must also be made for statutory interest payable to the surviving spouse: ibid s 14(4).23 (WA) Administration Act 1903 s 14(5). There are no equivalent provisions in the other jurisdictions. However see (VIC) Administration and Probate Act 1958 ss 50-53 (TAS) Intestacy Act 2010 Pt 2. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4840] Distribution of residue on intestacy: partial intestacy Each jurisdiction has established a legislative scheme for the distribution of a deceased persons property where that person dies intestate, whether wholly1 or partially. A partial intestacy arises where a deceased leaves a valid will that: (1)
fails to deal with the residue or part of the residue; or, (2) having dealt with the residue, that gift of the residue fails and there is no accrual or substitution provision which can take effect and save the gift; or (3) contains no gift of part of the residue, or (4) contains a gift of part of the residue, but that gift fails, and there is neither an accrual provision which can save the gift by allowing it to accrue a part of the residue which is effectively disposed of, nor a substitution provision which can save the gift.2 Where the deceased died partially intestate, the devolution of the intestate part is governed by the intestacy rules which apply to an estate where there is a total intestacy. Some jurisdictions, require the share (if any) taken under the will by a surviving spouse (or partner) or issue to be brought into account when determining how much that beneficiary is to take under the scheme of intestate succession.3 In the remaining jurisdictions, the respective schemes for intestate succession covering the property affected by the partial intestacy apply as if that property was the whole of the deceaseds estate.4 Notes 1 As to the law relating to intestate distribution in the various jurisdictions see [395-1565]-[3951975]. As to details of the individual legislative schemes relating to persons dying wholly intestate see: (ACT) Administration and Probate Act 1929 ss 45A, 49-49B, 49C (NT) Administration and Probate Act 1969 Pt III Div 4A, ss 66-69 (Intestate Aboriginals) (NSW) Succession Act 2006 Ch 4. (QLD) Succession Act 1981 ss 34-37, Sch 2 (SA) Administration and Probate Act 1919 ss 72B, 72E-72J, 72L, 72M (TAS) Intestacy Act 2010 Pt 2 (VIC) Administration and Probate Act 1958 ss 50-52, 54, 55 (WA) Administration Act 1903 ss 12A, 12B, 13, 14. 2 See [395-4790] note 1, [395-4645].3 (ACT) Administration and Probate Act 1929 s 49D (the shares to be taken are re-calculated having regard to the value of the testamentary interest). As to hotchpot see [395-2075]. (NT) Administration and Probate Act 1969 s 70 (the shares to be taken are re-calculated having regard to the value of the testamentary interest). As to hotchpot see [395-2075]. (VIC) Administration and Probate Act 1958 s 53(a) (the requirement to bring testamentary gifts into account only applies to issue of the deceased). 4 (NSW) Succession Act 2006 Ch 4. See also ibid s 102 (definition of intestate)
(QLD) Succession Act 1981 s 34(1) (definition of residuary estate) (SA) Administration and Probate Act 1919 s 72B(1) (definition of intestate estate) (TAS) Intestacy Act 2010 Pt 2 (WA) Administration Act 1903 s 14(1). See also [395-2085]-[395-2095]. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4845] Hotchpot In all jurisdictions except New South Wales, Queensland and Western Australia (where the requirement has been abolished),1 gifts made by a wholly intestate deceased2 during his or her lifetime to his or her children by way of advancement 3 are required4 to be brought into account5 in determining the shares or interests to be taken6 by those children in the intestate estate of the deceased. The requirement is commonly called hotchpot.7 Notes 1 As to abolition of hotchpot see [395-2035]. See, however, (QLD) Succession Act 1981 s 39 in relation to testamentary references to the (IMP) Statutes of Distribution (22 & 23 Car II c 10).2 The requirement does not apply to partial intestacies: Maiden v Maxwell (1921) 21 SR (NSW) 16. Compare Re Cornwall (1910) 13 WALR 40 (contrary view expressed).3 As to payments by way of advancement see [395-2060]. The requirement applies even though the payment was made to compensate for the value of past gratuitous services: National Trustees, Executors & Agency Co of Australasia Ltd v Ward (1896) 21 VLR 519; 2 ALR 119 . Loans forgiven at death are considered legacies and thus included in the deceased estate: Commissioner of Stamp Duties (NSW) v Bone (1976) 135 CLR 223; 9 ALR 11; 6 ATR 66; [1977] AC 511 .4 The requirement was originally sourced in the (IMP) Statute of Distributions 1670 (22 & 23 Car II c 10). The Australian provisions applying but modifying the rule are: (ACT) Administration and Probate Act 1929 s 49BA. The rule extends to all persons entitled to share in the intestate estate and their unentitled partners (but not to the deceaseds partner), but only to gifts made within five years prior to deceaseds death and to gifts over $10,000: ibid s 49BA(1). Any valuation required must be made at the date of the deceaseds death: ibid s 49BA(2). The rule extends to partial intestacies: ibid s 44(1) (definition of intestate estate). (NT) Administration and Probate Act 1969 s 68(3) (rule applies only to gifts made within five years prior to deceaseds death and to gifts over $1000, and extends to money or property given on the childs marriage: ibid s 68(3)). Any valuation required must be made at the date of the deceaseds death: ibid s 68(4). The rule extends to partial intestacies: ibid s 70. (SA) Administration and Probate Act 1919 s 72K (rule applies only to gifts made within five years prior to deceaseds death; it applies in the case of partial intestacies: ibid s 72K(1)(b)) (TAS) Intestacy Act 2010 s 41 (distribution not affected by gifts) (VIC) Administration and Probate Act 1958 s 52(1)(f)(i). See also ibid s 56 in relation to testamentary references to the (IMP) Statute of Distributions 1670 (22 & 23 Car II c 10). 5 The effect is to augment the value of the residuary estate for the purpose of calculating
distribution entitlements. In the case of gifts of land, the value to be included is the value of the land at the date of the gift: Stewart v Stewart (1880) 15 Ch D 539 ; Coleman v Lake (1903) 3 SR (NSW) 603; 20 WN (NSW) 191 . The value is to be augmented by the inclusion of notional interest at the rate of four per cent per annum from the date of the deceaseds death: Coleman v Lake (1903) 3 SR (NSW) 603; 20 WN (NSW) 191 .6 A child may elect not to claim his or her distributive share under the intestacy, in which case the requirement to bring advances to account is not invoked: Edwards v Freeman (1727) 2 P Wms 435 at 443 .7 As to the law relating to hotchpot see [395-2030]-[395-2095].
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(6) ASSENTS AND ACKNOWLEDGEMENTS
(A) Personal Estate The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4900] Concept of an assent Upon the death of a person, such property as he or she then possesses passes mediately1 or immediately2 to his or her personal representative. Where the deceased left a valid will, that will is necessary and sufficient to vest in the legatee an inchoate property in the subject matter of the legacy,3 but the trusts of the will cannot become operative, and title cannot pass, until such time as the executor determines that the property is no longer
required for the payment of the debts and legacies of the testator and the liabilities of the estate.4 The process by which the personal representative makes and communicates that decision to the legatee is called an assent. In the absence of statutory provision to the contrary,5 the process6 called assent applies only to personalty7 and chattels real,8 and only to an executor.9 Notes 1 As to devolution or revesting on grant see [395-4005].2 As to devolution upon death see [3954000].3 Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12 at 17-18, 27; [1965] ALR 803; BC6400550 ; Re West; West v Roberts [1909] 2 Ch 180 ; Kemp v Cmrs of Inland Revenue [1905] 1 KB 581 at 585 per Phillimore J .4 George Attenborough & Son v Solomon [1913] AC 76 at 82-3; [1911-13] All ER Rep 155 per Viscount Haldane LC . All property of the deceased is potentially available for the payment of these outgoings see [3954240], [395-4245].5 In some jurisdictions, legislation has extended to realty the principles of the common law of assents: (QLD) Succession Act 1981 s 49(1) (TAS) Administration and Probate Act 1935 s 36 (VIC) Administration and Probate Act 1958 s 41. There are no equivalent provisions in the other jurisdictions. See also Re Campbell (decd) [1968] VR 46 . As to extension of doctrine of assent to realty see [395-4915]. 6 Compare documents in the nature of assents see [395-4915].7 George Attenborough & Son v Solomon [1913] AC 76; [1911-13] All ER Rep 155 .8 Kemp v Cmrs of Inland Revenue [1905] 1 KB 581 ; Bryen v Reus [1961] SR (NSW) 396; (1960) 78 WN (NSW) 373 ; Re Culverhouse; Cook v Culverhouse [1896] 2 Ch 251; (1896) 74 LT 347 ; Wise v Whitburn [1924] 1 Ch 460 . See, however, (NSW) Probate and Administration Act 1898 s 46E and, for that purpose, the definition of real estate in ibid s 3, which excludes certain leases.9 Bryen v Reus [1961] SR (NSW) 396; (1960) 78 WN (NSW) 373 . An executor who has completed executorial duties may, by conduct, assent to himself or herself as trustee; at that point the executor is no longer able to exercise the powers of an executor in relation to that property in respect of which the assent has been made: George Attenborough & Son v Solomon [1913] AC 76; [1911-13] All ER Rep 155 ; Re Hird and Hickeys Contract; Hird v Hickey [1919] VLR 717; (1919) 25 ALR 419; 41 ALT 101 . See, however, (TAS) Administration and Probate Act 1935 s 36(6); (VIC) Administration and Probate Act 1958 s 41(5) (a conveyance by a personal representative to a purchaser for value is not invalidated merely because the purchaser is aware that the estates debts and liabilities have been paid). There are no equivalent provisions in New South Wales or Queensland. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4905] Vesting by means of assent In the case of personalty, assent is all that is necessary to pass title to the legatee,1 subject to any requirements for registration or similar steps.2 At common law, an assent may be express or may be implied from the conduct of the executor,3
but it must be communicated.4 An express assent may be oral or written5 and, if written, may be in the form of either a deed or a less formal writing referred to as an assent and signed by the executor.6 In Tasmania, an assent in favour of a life tenant operates as an assent in favour of the beneficiaries in remainder.7 Notes 1 The passing of title does not ordinarily occur until there has been a valid assent to the passing: Re Campbell (decd) [1968] VR 46 ; Ex parte Kenzler [1983] 2 Qd R 281 . It is the will, not the assent, which creates the legatees rights; in the case of an error as to the identity of the legatee, the assent perfects the gift in favour of the true owner irrespective of the executors understanding as to the legatees identity: Re West; West v Roberts [1909] 2 Ch 180 .2 Re West; West v Roberts [1909] 2 Ch 180 . In relation to personalty, these requirements include essential processes such as the registration of a holder of shares into the companys share register: Ex parte Kenzler [1983] 2 Qd R 281 . See corporations [120-5695], [120-5720]. See also [3954920] (registration required in respect of realty).3 George Attenborough & Son v Solomon [1913] AC 76 at 83; [1911-13] All ER Rep 155 per Viscount Haldane LC; Kemp v Cmrs of Inland Revenue [1905] 1 KB 581 at 585 per Phillimore J ; Re Donkin (decd); Riechelmann v Donkin [1966] Qd R 96 ; Holdway v Arcuri Lawyers (a firm) [2009] 2 Qd R 18; [2008] QCA 218; BC200806892 . See [395-4910]. However, where the executor is also the legatee for life, the acts relied on as constituting assent must be acts inconsistent with the executorial duties: Attorney-General v Potter (1842) 5 Beav 164; 49 ER 539 (term of realty); Richards v Browne (1837) 3 Bing NC 493; 132 ER 500 (furniture). See, however, (TAS) Administration and Probate Act 1935s 36(4); (VIC) Administration and Probate Act 1958 s 41(4) (which require assents to the vesting of any legal estate (in Tasmania, any estate or interest) to be in writing signed by the personal representative and naming the person who is to be the object of the assent). In Victoria, failure to comply with the section invalidates the vesting in the legatee: (VIC) Administration and Probate Act 1958 s 41(4).4 Wise v Whitburn [1924] 1 Ch 460. See also Williams on Executors (11th edition) at 1099 and following.5 Kemp v Cmrs of Inland Revenue [1905] 1 KB 581 at 585, 587 per Phillimore J.6 Kemp v Cmrs of Inland Revenue [1905] 1 KB 581 at 585 per Phillimore J . As to a written assent operating as a conveyance of property generally see the definitions of conveyance in: (SA) Law of Property Act 1936 s 7 (TAS) Administration and Probate Act 1935 s 3 (VIC) Property Law Act 1958 s 18(1); (VIC) Administration and Probate Act 1958 s 5(1) (WA) Property Law Act 1969 s 7. There are no equivalent provisions in the other jurisdictions. See also the following provisions which expressly acknowledge an assent as an available mode of divesting property in favour of a legatee by way of appropriation: (ACT) Trustee Act 1925 s 46(12) (NT) Administration and Probate Act 1969 s 81(8) (NSW) Trustee Act 1925 s 46(11). As to property that devolves see [395-4000]. 7 (TAS) Administration and Probate Act 1935 s 36(5). The paragraph below is current to 28 July 2011
[395-4910] Implied assents Assent in respect of personalty 1 or chattels real2 may be implied from the executors conduct. The filing of probate accounts showing completion of administration duties may be sufficient,3 as may concurrence in completion of accounting and taxation records in favour of the legatee.4 In respect of chattels real, implied assent may be constituted by permitting the legatee to take possession, or to receive the rents and profits, or any other sufficient act in pais of the executor.5 Notes 1 George Attenborough & Son v Solomon [1913] AC 76; [1911-13] All ER Rep 155 . In respect of the legal estate in land, an assent must comply with the legislative requirements which extend the principles of assent to realty: Re Campbell (decd) [1968] VR 46 . See [395-4915], [3954920].2 Kemp v Cmrs of Inland Revenue [1905] 1 KB 581 .3 George Attenborough & Son v Solomon [1913] AC 76 at 83; [1911-13] All ER Rep 155 per Viscount Haldane LC . This implication becomes stronger with the passage of a significant period of time: George Attenborough & Son v Solomon [1913] AC 76 at 83; [1911-13] All ER Rep 155 per Viscount Haldane LC (the implication was also strengthened by the fact that nothing was done by the executors purporting to be an exercise of powers as executors).4 Re Donkin (decd); Riechelmann v Donkin [1966] Qd R 96 at 118-20 per Gibbs J . See also Holdway v Arcuri Lawyers (a firm) [2009] 2 Qd R 18; [2008] QCA 218; BC200806892 per Keane JA.5 Kemp v Cmrs of Inland Revenue [1905] 1 KB 581 at 585 per Phillimore J . Such acts of the executor were relied upon unsuccessfully in Re Campbell (decd) [1968] VR 46 in respect of real estate see note 1 above. See also Burke v Dawes (1938) 59 CLR 1; [1938] ALR 135; (1938) 11 ALJ 524 (mortgagee without notice from the executor was preferred to a devisee who was in possession of the land with the consent of the executor for a period of 17 years after the grant was made, but without an effective assent having been given in the devisees favour).
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(B) Real Estate The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes
Annotations [395-4915] Extension of doctrine of assent to realty The principles relating to assent1 have been extended by statute to include real estate in some jurisdictions.2 The Tasmanian and Victorian legislation: (1) prescribes the form which an assent of realty must take;3 (2) provides that any statement made in such an assent to the effect that the personal representative assents in that capacity, invokes the statutory covenants4 implied in a conveyance made by a personal representative;5 and (3) stipulates that subject to any contrary intention apparent in the instrument the assent vests the subject property in the legatee, from the date of death.6 In New South Wales, an extension has been expressly negated by legislation which specifies the only permissible ways of divesting realty from a personal representative.7 Notes 1 See [395-4640] note 1.2 (QLD) Succession Act 1981 s 49(1). The section applies the common law principles without qualification, by providing that in relation to real estate a personal representative has all the powers which, prior to that time, were exercisable by an executor in relation to personal estate. (TAS) Administration and Probate Act 1935 s 36. The legislation expressly also applies to chattels real: ibid s 3(1) (definition of real estate). (VIC) Administration and Probate Act 1958 s 41. The legislation expressly also applies to chattels real: ibid s 41(1). There are no equivalent provisions in the other jurisdictions. 3 (TAS) Administration and Probate Act 1935 s 36(4) (the assent must be in the prescribed form if it relates to land held under the provisions of the (TAS) Land Titles Act 1980, otherwise, it must be in the form set out in (TAS) Administration and Probate Act 1935 Sch IV) (VIC) Administration and Probate Act 1958 s 41(10). If the assent is given by a personal representative registered as proprietor under the (VIC) Transfer of Land Act 1958 , the assent may be given or made in the form prescribed under that Act: (VIC) Administration and Probate Act 1958 s 41(10). Otherwise, the general form of assent is appropriate: (VIC) Administration and Probate Act 1958 s 41(4) (see [395-4905]). See also Re Campbell (decd) [1968] VR 46 . 4 As to the statutory covenants implied where a person conveys as a personal representative see: (TAS) Conveyancing and Law of Property Act 1884 s 7(1)(f) (VIC) Property Law Act 1958 s 76(1)(f), Sch 4 Pt VI. 5 (TAS) Administration and Probate Act 1935 s 36(3)
(VIC) Administration and Probate Act 1958 s 41(3). 6 (TAS) Administration and Probate Act 1935 s 36(2) (VIC) Administration and Probate Act 1958 s 41(2). 7 (NSW) Probate and Administration Act 1898 s 46E. The permissible methods are by registration under the (NSW) Real Property Act 1900 in respect of interests in land held under that Act, or by common law conveyance or statutory acknowledgement in respect of other interests. As to acknowledgements see [395-4925]. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4920] Registration requirements Except in respect of acknowledgements in the Australian Capital Territory and New South Wales,1 there is no requirement for registration by the personal representative of assents, transfers and conveyances executed for the purpose of divesting real estate from personal representatives in favour of legatees under a will or beneficiaries on an intestacy.2 Registration may, however, be required in order to perfect the legatees title.3 The costs of divesting title to real estate from a personal representative and of vesting it in a legatee are a special administration expense and, therefore, payable by the legatee.4 Notes 1 As to acknowledgements see [395-4925].2 The statutory schemes of assent in relation to real estate applying in Tasmania and Victoria require only that the personal representatives assent be in a specified form: (TAS) Administration and Probate Act 1935 s 36(1) (VIC) Administration and Probate Act 1958 s 41(4), 41(10). 3 As to registration see real property [355-3690]-[355-3730] (deeds generally), [355-8130]-[3558235] (lands and interests under Torrens systems).4 Lloyd v Frape (1922) 23 SR (NSW) 11 . See also [395-4260]. The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4925] Acknowledgements In the Australian Capital Territory and New South Wales, an executor or an administrator with the will annexed may, in respect of lands or interests in lands not held under the Torrens system, divest that realty in favour of a devisee by executing either a conveyance or a statutory acknowledgement.1 Where an acknowledgement is used, it must be in the prescribed form2 and, for the vesting to be effective, the acknowledgement must be registered and, upon registration, it has the same effect as if the personal representative had executed a conveyance of the land or interest.3 In each jurisdiction, the legislation and the prescribed form refer to the vesting in the devisee of
the estate for which the same is devised for him.4 Accordingly, an acknowledgement is not a good root of title.5 Notes 1 (ACT) Administration and Probate Act 1929 s 56 (NSW) Probate and Administration Act 1898 s 83. There are no equivalent provisions in the other jurisdictions. 2 (ACT) Administration and Probate Act 1929 s 56(1). (NSW) Probate and Administration Act 1898 s 83(1); (NSW) Supreme Court Rules Pt 78 r 89. For the prescribed form see (NSW) Supreme Court Rules Sch F Form 117. 3 (ACT) Administration and Probate Act 1929 s 56(2) (NSW) Probate and Administration Act 1898 s 83(2). 4 (ACT) Administration and Probate Act 1929 s 56(1) (NSW) Probate and Administration Act 1898 s 83(1). 5 Rickard & Co Ltd v Sydney Land Bank and Financial Agency Co Ltd (1905) 5 SR (NSW) 529 . See also Re Lemon and Daviess Contract [1919] VLR 481 at 483 per Hood J . See further real property [355-30]-[355-45].
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(C) Effect Of Assent The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes
Annotations [395-4930] Effect of assent on personal representative Except in Tasmania and Victoria, an executor who assents in respect of part of the estate of a deceased person loses the right to exercise the powers of an executor in relation to that part of the property.1 However, in Tasmania and Victoria, except as against the purchaser of an estate or interest, the executor retains the right to recover against the assented property, to enforce his or her right to indemnity from the estate,2 and may attach to the assent conditions as to security for discharge of liabilities of the estate.3 Notes 1 George Attenborough & Son v Solomon [1913] AC 76; [1911-13] All ER Rep 155 ; Re Donkin (decd); Riechelmann v Donkin [1966] Qd R 96 ; Re Hird and Hickeys Contract; Hird v Hickey [1919] VLR 717; (1919) 25 ALR 419; 41 ALT 101 (power to sell for the purposes of administration).2 (TAS) Administration and Probate Act 1935 s 36(7) (VIC) Administration and Probate Act 1958 s 41(6). 3 (TAS) Administration and Probate Act 1935 s 36(8) (VIC) Administration and Probate Act 1958 s 41(7). The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4935] Effect upon legatee Upon an effective assent being communicated, the legatee gains the right to sue for and recover the property the subject of the assent.1 An assent remains effective in Tasmania and Victoria notwithstanding the subsequent revocation or variation of the grant to the executor who makes it.2 Because an effective assent will of itself divest title to the subject matter from the executor,3 the cost of delivery and of any registration or other step necessary to effectively vest the title in the legatee is a special administration expense and, as such, is for the legatees account.4 Notes 1 Sloper v Cottrell (1856) 6 El & Bl 497; 119 ER 950; Harvell v Foster [1954] 2 QB 367; [1954] 2 All ER 736; [1954] 3 WLR 351 , CA.2 (TAS) Administration and Probate Act 1935 ss 3(1) (definition of conveyance), 37(1) (VIC) Administration and Probate Act 1958 ss 5(1) (definition of conveyance), 42(1). 3 As to vesting by means of assent see [395-4905].4 Lloyd v Frape (1922) 23 SR (NSW) 11 The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-4940] Other consequences An assent in relation to a leasehold estate is not a breach of a .
term of the lease prohibiting assignment of the lease without the consent of the lessor.1 An effective statutory assent in Tasmania and Victoria2 relates back to the date of the testators death.3 Notes 1 Bryen v Reus [1961] SR (NSW) 396; (1960) 78 WN (NSW) 373 .2 As to vesting real estate by assent see [395-4905], [395-4915], [395-4920].3 (TAS) Administration and Probate Act 1935 s 36(2) (VIC) Administration and Probate Act 1958 s 41(2).
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(7) APPROPRIATION
The paragraph below is current to 28 July 2011 [395-4995] Nature of power to appropriate A personal representative may, in favour of a beneficiary1 and in certain circumstances,2 apply in specie any asset3 being a part of the estate of a deceased person in satisfaction of that beneficiarys distributive share or interest in the estate or the residue.4 This power, known as the power of appropriation, may be derived from common law, the will5 or statute.6 The burden of proving that an appropriation has already been made lies on the beneficiaries of the remaining fund from which the appropriation is alleged to have been made.7
Notes 1 For the purpose of the power of appropriation, an executor may appropriate in favour of himself or herself in the capacity of beneficiary (In the Estate of Gamble (1915) 32 WN (NSW) 121 ; Re Richardson; Morgan v Richardson [1896] 1 Ch 512 ), even where the asset does not have an exactly definite value: Re Pearce [1936] SASR 137 .2 The circumstances vary, depending on whether the power is sourced in the will, at common law, or in statute see [395-5000], [3955005].3 Asset in this context refers to a particular piece of property, and does not encompass a part interest in a particular piece of property, unless the deceased held no more than that part interest: Wiblen v Feros; Estate of Feros (decd) (1998) 44 NSWLR 158 .4 In the Will of Hinsch (1896) 17 LR (NSW) B & P 21; In the Estate of Gamble (1915) 32 WN (NSW) 121 .5 The power to agree with a legatee for appropriation of a specific portion of the estate exists independently of any power in the will: In the Will of Hinsch (1896) 17 LR (NSW) B & P 21.6 Application of the statutory power to appropriate is subject to any terms of the will: Long v Comptroller of Stamps [1964] VR 796 .7 In the Estate of Tolley (decd) (1972) 5 SASR 466 . The paragraph below is current to 28 July 2011 [395-5000] Power of appropriation at common law The essence of the power is that it is equivalent to a sale of the asset1 by the personal representative to the recipient beneficiary2 at a price equal to its value,3 and made upon terms that the purchase money is to be set off, pro tanto, against the value of the recipients share.4 The power to appropriate at common law can be exercised in respect of personalty5 and in respect of residuary realty devised upon trust for sale and conversion.6 It seems, however, that it may not be exercisable in respect of other realty without the consent of the other beneficiaries who would otherwise be entitled to share in it.7 In the absence of a contrary direction in the will, appropriation may only be undertaken with the consent of the beneficiary to whom the property is appropriated.8 Notes 1 A valid appropriation cannot occur under conditions in which a sale would amount to a breach of trust: Wigley v Crozier (1909) 9 CLR 425 at 444; 15 ALR 571 per OConnor J.2 An asset cannot be applied in satisfaction of multiple legacies: Wiblen v Feros; Estate of Feros (decd) (1998) 44 NSWLR 158 .3 But not at an undervalue: In the Will of Hinsch (1896) 17 LR (NSW) B & P 21.4 Re Pearce [1936] SASR 137 ; In the Estate of Mack (1956) 73 WN (NSW) 218 .5 In the Estate of Gamble (1915) 32 WN (NSW) 121 .6 Re Beverly; Watson v Watson [1901] 1 Ch 681; (1901) 84 LT 296 .7 In the Estate of Gamble (1915) 32 WN (NSW) 121 .8 In the Will of Hinsch (1896) 17 LR (NSW) B & P 21; In the Estate of Mack (1956) 73 WN (NSW) 218 ; Wiblen v Feros; Estate of Feros (decd) (1998) 44 NSWLR 158 . The paragraph below is current to 28 July 2011 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-5005] Statutory power to appropriate All jurisdictions except South Australia have legislated to give power to personal representatives to appropriate estate property in satisfaction of a legacy.1 Executors and administrators may appropriate any part of the estate, including choses in action, in or towards satisfaction of any legacy, interest or share in the estate,2 or to set apart a fund to answer an annuity by way of income,3 as long as the appropriation does not prejudicially affect any specific devise or bequest.4 An appropriation requires the consent of the recipient5 (which may be given on the recipients behalf where the beneficiary is a minor or infant,6 or is a mentally incapacitated person,7 or is a person who cannot be found, or it is
uncertain whether he or she is living or dead,8) but without the need for any other consent or order of the court.9 Appropriately qualified valuations must be obtained where necessary, 10 and appropriations may be perfected by conveyance or assent.11 An appropriation duly made binds the persons affected by it,12 and its validity may be presumed13 by a purchaser for value14 from the recipient. Statutory powers to appropriate are subject to the terms of the will,15 and are in addition to powers available to the personal representative at common law.16 In the Australian Capital Territory, where any part of the estate of a deceased person is appropriated, in conformity with a power in the will, towards satisfaction of a legacy (not being an annuity), the legatee is entitled to the income derived from that property, but not to any other interest on the legacy.17 In South Australia, there is statutory power to set aside a fund to answer an annuity by means of income of the fund. The sum set aside must, at the time of appropriation, be sufficient when invested in Commonwealth government securities, to provide a return which will exceed the annuity by at least 25 per cent. The annuitant thereafter has no recourse either to the estate or against the trustee. The annuitants consent is not required before the appropriation can be made.18 Notes 1 (ACT) Trustee Act 1925 s 46 (NT) Administration and Probate Act 1969 s 81 (NSW) Trustee Act 1925 s 46 (QLD) Trusts Act 1973 s 33 (TAS) Administration and Probate Act 1935 s 40 (VIC) Administration and Probate Act 1958 s 46 (WA) Trustees Act 1962s 30. As to the position in the Australian Capital Territory see note 16 below. 2 (ACT) Trustee Act 1925 s 46(1) (choses in action not specifically mentioned) (NT) Administration and Probate Act 1969 s 81(1) (NSW) Trustee Act 1925 s 46(1) (the sub-section does not specifically mention choses in action) (QLD) Trusts Act 1973 s 33(1)(l) (appropriation may be made towards any legacy or share in the estate) (TAS) Administration and Probate Act 1935 s 40(1) (VIC) Administration and Probate Act 1958 s 46(1) (WA) Trustees Act 1962 s 30(1)(k) (appropriation may be made towards any legacy or share in the estate). 3 (ACT) Trustee Act 1925 s 46(2)(b) (NT) Administration and Probate Act 1969 s 81(14)(c)
(NSW) Trustee Act 1925 s 46(2)(b) (QLD) Trusts Act 1973 s 33(1)(m) (appropriation may be made for any annuity or other periodic payment) (TAS) Administration and Probate Act 1935 s 40(9) (VIC) Administration and Probate Act 1958 s 46(9). See also (VIC) Trustee Act 1958 s 31(2)(b), which also permits the appropriation of a fund to answer an annuity. The consent of the annuitant is required: ibid s 31(6), unless the amount set aside is sufficient when invested in Australian government securities, to provide a return which will exceed the annuity by at least 20 per cent: ibid s 31(9). The annuitant is bound by any appropriation on this account made in conformity with the section: ibid s 31(4). (WA) Trustees Act 1962 s 30(1)(l) (appropriation may be made for any annuity or other periodic payment). 4 (ACT) Trustee Act 1925 s 46(1)(a) (NT) Administration and Probate Act 1969 s 81(2) (NSW) Trustee Act 1925 s 46(1)(a) (QLD) Trusts Act 1973 s 33(1)(l)(i) (TAS) Administration and Probate Act 1935 s 40(1)(a) (VIC) Administration and Probate Act 1958 s 46(1)(a) (WA) Trustees Act 1962 s 30(1)(k)(i). 5 (ACT) Trustee Act 1925 s 46(5) (the consent must be in writing) (NT) Administration and Probate Act 1969 s 81(3)(a) (NSW) Trustee Act 1925s 46(5) (the consent must be in writing) (QLD) Trusts Act 1973 s 33(1)(l)(ii). Notice must be given to the persons affected by the appropriation; consent is not required, but a beneficiary who does not consent may apply to the court to vary the appropriation. However, where the trustee would, in the capacity of beneficiary, be affected by the appropriation, the appropriation must be approved by all beneficiaries or the court: ibid s 33(2). (TAS) Administration and Probate Act 1935 s 40(1)(b)(i) (VIC) Administration and Probate Act 1958 s 46(1)(b)(i) (WA) Trustees Act 1962 s 30(1)(k)(ii). Notice must be given to the persons affected by the appropriation; consent is not required, but a beneficiary who does not consent may apply to the court to vary the appropriation. However, where the trustee would, in the capacity of beneficiary, be affected by the appropriation, the appropriation must be approved by all beneficiaries or the court: ibid s 30(3). Where the appropriation is made in respect of a settled legacy, share or interest the consent must be given by the trustee of the settlement (if any) or the person for the time being entitled to the income: (ACT) Trustee Act 1925 s 46(6)
(NT) Administration and Probate Act 1969 s 81(3)(b), 81(6) (NSW) Trustee Act 1925 s 46(6) (the consent must be in writing) (TAS) Administration and Probate Act 1935 s 40(1)(b)(ii) (VIC) Administration and Probate Act 1958 s 46(1)(b)(ii). There are no equivalent provisions in the other jurisdictions. 6 (ACT) Trustee Act 1925 s 46(7)(a) (child) (NT) Administration and Probate Act 1969 s 81(4)(a), 81(4)(b) (NSW) Trustee Act 1925 s 46(7)(a) (QLD) Trusts Act 1973 s 33(1)(l)(ii) (requires notice to be given to specified other persons) (TAS) Administration and Probate Act 1935s 40(1) (VIC) Administration and Probate Act 1958 s 46(1) (WA) Trustees Act 1962 s 30(1)(k)(ii) (requires notice to be given to specified other persons). 7 (ACT) Trustee Act 1925 s 46(7)(b) (NT) Administration and Probate Act 1969s 81(4)(c) (NSW) Trustee Act 1925 s 46(7)(b), 46(7)(c) (QLD) Trusts Act 1973 s 33(1)(l)(ii) (requires notice to be given to specified other persons) (TAS) Administration and Probate Act 1935 s 40(1) (VIC) Administration and Probate Act 1958 s 46(1) (WA) Trustees Act 1962 s 30(1)(k)(ii) (requires notice to be given to specified other persons). 8 (ACT) Trustee Act 1925 s 46(7)(c).9 (ACT) Trustee Act 1925 s 46(8) (no further consent is required on behalf of a child without parent or guardian, a person with a mental disability without guardian or manager of property or a person who may come into existence after the time of appropriation, or cannot be found or ascertained at that time, or as to whom it is uncertain at that time whether he or she is living or dead) (NT) Administration and Probate Act 1969 s 81(1), 81(5), 81(6) (NSW) Trustee Act 1925 s 46(8). As to investments authorised by law see (NSW) Trustee Act 1925 s 14. (TAS) Administration and Probate Act 1935 s 40(1)(c), 40(1)(d), 40(1)(e) (VIC) Administration and Probate Act 1958 s 46(1)(c), 46(1)(d). See also trusts [430-4140]-[430-4280]. There are no equivalent provisions in the other jurisdictions, however see note 5 above as to the need, in Queensland and Western Australia, to approach the court in certain circumstances. 10 (ACT) Trustee Act 1925 s 46(3)
(NT) Administration and Probate Act 1969 s 81(8) (NSW) Trustee Act 1925 s 46(3) (QLD) Trusts Act 1973 s 33(1)(l) (TAS) Administration and Probate Act 1935 s 40(3) (VIC) Administration and Probate Act 1958 s 46(3) (WA) Trustees Act 1962 s 30(1)(k). 11 (ACT) Trustee Act 1925 s 46(12) (NT) Administration and Probate Act 1969 s 81(8) (NSW) Trustee Act 1925 s 46(11) (QLD) Trusts Act 1973 s 33(1)(n), 33(5) (notice required to be given to the appropriate registering authorities where land is appropriated under this power) (TAS) Administration and Probate Act 1935 s 40(3) (VIC) Administration and Probate Act 1958 s 46(3) (WA) Trustees Act 1962 s 30(1)(m). 12 (ACT) Trustee Act 1925 s 46(4) (NT) Administration and Probate Act 1969 s 81(9) (NSW) Trustee Act 1925 s 46(4) (QLD) Trusts Act 1973 s 33(1)(l)(ii) (TAS) Administration and Probate Act 1935 s 40(4) (VIC) Administration and Probate Act 1958 s 46(4) (WA) Trustees Act 1962 s 30(1)(k)(ii). 13 (ACT) Trustee Act 1925 s 46(13) (NT) Administration and Probate Act 1969 s 81(12) (NSW) Trustee Act 1925 s 46(12) (TAS) Administration and Probate Act 1935 s 40(7) (VIC) Administration and Probate Act 1958 s 46(7). There are no equivalent provisions in the other jurisdictions. 14 (ACT) Trustee Act 1925 s 46(13) (honest purchaser) (NT) Administration and Probate Act 1969 s 81(13) (NSW) Trustee Act 1925 s 46(12) (purchaser in good faith)
(TAS) Administration and Probate Act 1935 s 40(8) (VIC) Administration and Probate Act 1958 s 46(8). There are no equivalent provisions in the other jurisdictions. 15 Long v Comptroller of Stamps [1964] VR 796 . See also: (ACT) Trustee Act 1925 s 46(15), 46(16) (NT) Administration and Probate Act 1969 s 81(11) (NSW) Trustee Act 1925 s 46(16) (TAS) Administration and Probate Act 1935 s 40(6) (VIC) Administration and Probate Act 1958 s 46(6). There are no equivalent provisions in the other jurisdictions. 16 (ACT) Trustee Act 1925 s 46(15), 46(16) (NT) Administration and Probate Act 1969 s 81(11) (NSW) Trustee Act 1925 s 46(15) (TAS) Administration and Probate Act 1935 s 40(6) (VIC) Administration and Probate Act 1958 s 46(6). There are no equivalent provisions in the other jurisdictions. 17 (ACT) Administration and Probate Act 1929 s 55A(2).18 (SA) Trustee Act 1936 s 35A(2).
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(8) LITIGATION BY OR AGAINST PERSONAL REPRESENTATIVES
(A) Role of Personal Representatives in Litigation The paragraph below is current to 29 September 2010 [395-5500] Personal representatives duty to defend will In general, it is the personal representatives duty to support the testators will, so that it becomes unnecessary for the beneficiaries to intervene in litigation involving the estate.1 However, there may be situations where beneficiaries do have to intervene.2 In litigation against the estate, especially where the estate is a small one, it is the duty of the personal representatives either to compromise the claim, or to contest the claim and seek to uphold the provisions of the will.3 If the personal representatives do their duty, it should not be necessary for beneficiaries to intervene and be separately represented.4 However, although the beneficiaries have no legal or equitable estate in assets forming part of the estate before administration, they do have standing. They have an equity a right to a remedy justiciable in a court of equity for example, a right to set aside an agreement on the ground of fraud.5 The principle that the personal representative is supposed to act so as to make it unnecessary for beneficiaries to intervene and be separately represented may create difficulties for the personal representative.6 The exceptions to the principle that it is the executor or trustee who must act to preserve the interests of the beneficiaries, and to pursue claims against alleged debtors of the estate, have been collected under the general term special circumstances.7 Where there are special circumstances and the relief sought is in the equitable jurisdiction of the court, a beneficiary may commence proceedings in his or her own name and the trustee and other beneficiaries may be added as defendants.8 Special circumstances include situations where:9 (1) there is collusion between the trustee and debtor; (2) the trustee is insolvent; (3) executors handed over estate assets hastily, improvidently and in breach of trust; (4) the relationship between the executor and third parties presents a substantial impediment to the prosecution by the executor of the beneficiarys rights; (5) the beneficiary will be prejudiced if the rights are not prosecuted;
(6) the court forms the view that it would be proper in the circumstances to allow the proceedings to commence because it would be impossible, or at least seriously inconvenient, for the representatives to commence proceedings; (7) if the personal representative has refused to sue and if the circumstances of any given case are such that, upon an inquiry directed at whether any and what proceedings should be taken, the court, based upon the materials before it, would come to the conclusion that it was a proper case for proceedings to be commenced, although not necessarily and absolutely certain that the beneficiary would be successful;10 and (8) a trustee commits a breach of trust or is involved in a conflict of interest and duty. In this case a beneficiary may be allowed to sue a third party in the place of the trustee. However, a beneficiary allowed to commence proceedings cannot be in a better position than a trustee carrying out his or her duties in a proper manner.11 Further, it may be proper to have such separate representation in special circumstances where, for example, the executors are themselves beneficiaries under the will or very substantial benefits are conferred on beneficiaries.12 If beneficiaries desire to intervene they must make an application before or at the hearing and it is by no means a matter of course that such an application is granted.13 In order to protect properly the interests of the beneficiaries the executor must put forward the financial needs and claims of the beneficiaries,14 supported by such evidence as the beneficiaries wish to present, even if the executor does not wish to present it.15 Counsel appearing for the executors should be ready to give the court all possible assistance and should place all the relevant evidence before the court relating not only to the case generally, but to any particular circumstances which the court should take into consideration relating to any particular gift in the will.16 If the executors compel beneficiaries to seek separate representation to protect their gifts, the executors run a grave risk of the court holding that they have acted improperly and, in a case where the court considers that only one set of costs should be allowed between the respondents, it may order that set of costs to be applied in the first instance on behalf of the beneficiaries who have been forced to intervene, and only the residue to be applied on behalf of the executors.17 The court may direct that the beneficiaries come in as defendants in lieu of the personal representative where a person who is not a beneficiary is pursuing against the personal representative a claim adverse to the whole or a large part of the estate. In such circumstances, it would be unfair to allow the personal representative to represent the estate and for the personal representatives costs to come out of the estate, since this would mean that, whether the claimant wins or loses, the claimant pays the costs, either as the losing party or ultimately from the estate which always rightfully belonged to the claimant.18 Notes 1 In the Will of Lanfear (decd) (1940) 57 WN (NSW) 181 at 183 per Williams J; Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503; (1973) 92 FLR 67 per Hardie JA. See also Hayim v Citibank NA [1987] 1 AC 730 at 746-7; [1987] 3 WLR 83 per Lord Templeman , PC. Compare Re Young; Hobbs v Christchurch City [1968] NZLR 1178 ; Re Millen (decd) [1975] 2 NZLR 605 . Both Re Young; Hobbs v Christchurch City [1968] NZLR 1178 and Re Millen (decd) [1975] 2 NZLR 605 were applications for probate in solemn form of one of two wills.
On compromise of a probate suit, see In the Estate of Muirhead [1971] P 263 (approved In the Estate of Alcorn (unreported,SC(NSW), Powell J, No 102614 of 1991, 9 August 1991, BC9101691)); In the Estate of Szylowicz (decd) (1978) 19 SASR 263 ; Re Will of McKillop (1983) 65 FLR 392 , SC(ACT); Vandeleur v Franich [1991] Qd R 481; Scallan v Scallan [2001] NSWSC 1129; BC200107926 . 2 Hayim v Citibank NA [1987] 1 AC 730 at 747; [1987] 3 WLR 83 per Lord Templeman , PC; In the Will of Lanfear (decd) (1940) 57 WN (NSW) 181 . See also Chahwan v Euphoric Pty Ltd t/as Clay & Michael (2009) 73 ACSR 252; [2009] NSWSC 805; BC200907321 at [17] per Brereton J (requirement of trustee to sue on a cause of action).3 In the Will of Lanfear (decd) (1940) 57 WN (NSW) 181 at 183 per Williams J. See also Vasiljev v Public Trustee [1974] 2 NSWLR 497; (1973) 92 FLR 67 .4 In the Will of Lanfear (decd) (1940) 57 WN (NSW) 181 at 183 per Williams J; Middleton v ONeill (1943) 43 SR (NSW) 178 at 186; 60 WN (NSW) 101 per Jordan CJ. See also Vasiljev v Public Trustee [1974] 2 NSWLR 497; (1973) 92 FLR 67 . In Ackerly v Palmer [1910] VLR 339; (1910) 16 ALR 326 an administrator transferred assets in breach of trust; in an action by the administrator against the distributees, the beneficiaries were held not to be necessary parties. Compare Re Will of McKillop (1983) 65 FLR 392 , SC(ACT).5 Re Atkinson (decd) [1971] VR 612 at 617-18 per Gillard J. Compare Miller v National Mutual Life Assn of Australasia Ltd [1909] VLR 193; (1909) 15 ALR 1416 (beneficiaries have no standing to enforce payment of insurance policy proceeds even if executors refuse).6 Vasiljev v Public Trustee [1974] 2 NSWLR 497; (1973) 92 FLR 67 ; Re Will of McKillop (1983) 65 FLR 392 , SC(ACT).7 Ramage v Waclaw (1988) 12 NSWLR 84 at 91 per Powell J ; Middleton v ONeill (1943) 43 SR (NSW) 178 at 186; 60 WN (NSW) 101 per Jordan CJ.8 Ramage v Waclaw (1988) 12 NSWLR 84 at 91 per Powell J.9 Ramage v Waclaw (1988) 12 NSWLR 84 at 91-3 per Powell J ( quoting Hilliard v Eiffe (1874) LR 7 HL 39 at 44(n)). Compare Middleton v ONeill (1943) 43 SR (NSW) 178; 60 WN (NSW) 101 (relationship between executor and third party constituted a substantial impediment). An executor who declines to get in a debt owed by himself or herself is in breach of trust: Re Haighs Estate (1890) 11 LR (NSW) Eq 303. See also Carpenter v Pioneer Park Pty Ltd (2008) 71 NSWLR 577; (2008) 66 ACSR 564; (2008) 26 ACLC 484; [2008] NSWSC 551; BC200804125 at [25] per Barrett J .10 Field v Firmenich & Co [1971] 1 All ER 1104; [1971] 1 WLR 555 at 559 per Goff J (approving Yeatman v Yeatman (1877) 7 Ch D 210 at 216 per Hall VC). In Field v Firmenich & Co [1971] 1 All ER 1104; [1971] 1 WLR 555 it was held that there should be special circumstances to justify bringing the action in that form. See also Chahwan v Euphoric Pty Ltd t/as Clay & Michael (2009) 73 ACSR 252; [2009] NSWSC 805; BC200907321 at [17] per Brereton J .11 Hayim v Citibank NA [1987] 1 AC 730 at 747; [1987] 3 WLR 83 per Lord Templeman , PC.12 In the Will of Lanfear (decd) (1940) 57 WN (NSW) 181 at 183 per Williams J. See also Vasiljev v Public Trustee [1974] 2 NSWLR 497; (1973) 92 FLR 67 . Compare Re Will of McKillop (1983) 65 FLR 392 , SC(ACT).13 In the Will of Lanfear (decd) (1940) 57 WN (NSW) 181 at 183 per Williams J. See also Vasiljev v Public Trustee [1974] 2 NSWLR 497; (1973) 92 FLR 67 .14 Vasiljev v Public Trustee [1974] 2 NSWLR 497; (1973) 92 FLR 67 .15 Vasiljev v Public Trustee [1974] 2 NSWLR 497; (1973) 92 FLR 67 ; Re Will of McKillop (1983) 65 FLR 392 , SC(ACT) (contains statements on the Australian Capital Territory practice).16 In the Will of Lanfear (decd) (1940) 57 WN (NSW) 181 at 183 per Williams J. See also Vasiljev v Public Trustee [1974] 2 NSWLR 497; (1973) 92 FLR 67 ; Re Will of McKillop (1983) 65 FLR 392 , SC(ACT).17 In the Will of Lanfear (decd) (1940) 57 WN (NSW) 181 at 183 per Williams J. See also Vasiljev v Public Trustee [1974] 2 NSWLR 497; (1973) 92 FLR 67 .18 Public Trustee v Carew-Reid (unreported, SC(WA), Anderson J, No 1483 of 1993, 13 August 1993, BC9301374) at 12 per Anderson J (making the beneficiaries be the defendants means that they have to decide for themselves whether they want to risk their own resources in costs). The paragraph below is current to 29 September 2010 [395-5505] Litigation by or against strangers Since the executors1 represent the person of their testator, the general principle is that the personal representatives can sue and be sued, as the testator might, to the extent of the estate committed to them.2 The executor represents the
deceased in all his or her contracts3 and personal rights and liabilities.4 The executor is liable at law to discharge every debt of the testator only to the extent the assets of the estate permit. Where there is adequate assets in an estate to discharge all debts and an executor fails to discharge all debts the executor becomes personally liable. The executor who become personally liable for debts also becomes personally liable for the costs of litigation relating to the recovery of debts.5 Notes 1 The authorities for the propositions in this paragraph refer generally to executors, however, it is clear that the principles stated in those authorities also apply, mutatis mutandis, to administrators.2 Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492 at 515; 16 ALR 553; [1910] HCA 44; BC1000033 per Isaacs J.3 Ahmed Angullia Bin Hadjee Mohamed Salleh Angullia v Estate & Trust Agencies (1927) Ltd [1938] AC 624 at 634 per Romer J; [1938] 3 All ER 106 .4 Beckham v Drake (1849) 2 HL Cas 579 at 596; 9 ER 1213 at 1219 per Williams J; Re Ballman; Ex parte Garland (1804) 32 ER 786 .5 Levy v Kum Chah (1936) 56 CLR 159 at 170; [1936] ALR 10; (1936) 10 ALJR 328 per Dixon and Evatt JJ. The paragraph below is current to 29 September 2010 [395-5510] Representatives duty to litigate if necessary It is the personal representatives duty to collect estate assets and to enforce, by action if necessary, any right, title or interest of the testator in particular assets.1 If the personal representative, without application to the court, fails to do so he or she must justify his or her action by showing that any proceedings would have been fruitless.2 However, where there are competing claims and no indemnity is forthcoming from those wanting the personal representative to act, the personal representative is not bound to use his or her own funds to vindicate the testators rights, if any.3 Where the executor has been involved in litigation against the estate, to the extent that the estate assets have been exhausted and the executor now wishes to be allowed to be absolved from the obligation to continue to litigate, the court may make an order which is appropriate to the particular facts.4 Notes 1 Re Atkinson (decd) [1971] VR 612 at 616 per Gillard J; Re Burbidge (No 2) (unreported, SC(NSW), Young J, No 6442 of 1992, 25 June 1993, BC9301765). See also Re Haighs Estate (1890) 11 LR (NSW) Eq 303 (executor himself owed debt to the testator); Re Howlett; Howlett v Cmr of Taxation [1964] Tas SR 63 (executor himself owed debt to the testator). Compare Re Ariell (No 2) [1974] Qd R 293 (debt due by executor to testator forgiven by testator during life). Additional assets discovered after compromise with and release by the testators creditors may be distributable among creditors: In the Estate of Mitchell (decd) [1915] VLR 222; (1915) 21 ALR 157 ; In the Estate of Whitehead (decd) (1986) 44 SASR 402 .2 Re Atkinson (decd) [1971] VR 612 at 616 per Gillard J. See also Re Burbidge (No 2) (unreported, SC(NSW), Young J, No 6442 of 1992, 25 June 1993, BC9301765).3 Re Atkinson (decd) [1971] VR 612 at 616 per Gillard J; Re Burbidge (No 2) (unreported, SC(NSW), Young J, No 6442 of 1992, 25 June 1993, BC9301765).4 Public Trustee v Carew-Reid (unreported, SC(WA), Anderson J, No 1483 of 1993, 13 August 1993, BC9301374) at 13 (approving Re Dallaway (decd) [1982] 3 All ER 118; [1982] 1 WLR 756 ; Evans v Evans [1985] 3 All ER 289 sub nom Re Evans (decd) [1986] 1 WLR 101 at 106 per Nourse LJ. The paragraph below is current to 29 September 2010 [395-5515] Costs If the legal personal representative is uncertain whether the costs of litigation are to come out of the estate, the advice and direction of the court should be sought.1 If personal representatives compel beneficiaries to be joined as parties in a suit, this may have an adverse effect on the personal representatives in relation to costs.2
Notes 1 An order like that in Re Beddoe; Downes v Cottam [1893] 1 Ch 547; (1892) 62 LJ Ch 233; 68 LT 595 should be sought. As to this order see further [395-5940] note 1. See also Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; (2008) 249 ALR 250; [2008] HCA 42; BC200807738 .2 See [395-5500].
Source
(B) Survival of Causes of Action The paragraph below is current to 29 September 2010
To update legislation see ACL Legislation
For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations
[395-5520] Meaning of causes of action The survival of causes of action1 is distinct from survival of actions.2 In all jurisdictions, legislation provides that on the death of any person, all causes of action subsisting against, or vested in him or her will survive against, or for the benefit of, his or her estate.3 Most jurisdictions provide for two exceptions which are of practical significance that is, actions for defamation,4 and, in those jurisdictions where it still exists,5 the action for seduction of a child.6 The scope of the provisions are limited to the survival of causes of action.7 Because the cause of action must be one subsisting against8 the deceased at his or her death, the right or liability must have accrued due at the time of his or her death.9 The courts have been reluctant to extend or widen the meaning of the phrase cause of action into a different area of the law, particularly when that area of the law is the creature of statute.10 A merely procedural right to
approach the court to determine a question does not amount to a cause of action.11 A cause of action which is personal to a particular person, in the sense that assessing and deciding the claim involves consideration of matters wholly personal to the person, is not transmissible and therefore does not survive the death of the holder of that right.12 In Queensland where an action survives against an estate of a deceased person, the action may be brought against any beneficiary to whom any part of the estate has been distributed as well as against the personal representatives.13 Notes 1 Causes of action are rights which may be enforced, or liabilities which may be redressed, by legal proceedings in the courts: Sugden v Sugden [1957] P 120 at 134; [1957] 1 All ER 300 per Denning LJ. See (ACT) Court Procedure Rules 2006 rr 231-233
(NSW) Uniform Civil Procedure Rules 2005 r 6.30
(NT) Supreme Court Rulesrr 9.08, 9.09
(QLD) Uniform Civil Procedure Rules 1999 rr 71-73
(SA) Supreme Court Civil Rules 2006 r 76; (SA) Survival of Causes of Action Act 1940
(TAS) Supreme Court Rules 2000 r 182. Compare ibid r 306.
(VIC) Supreme Court (General Civil Procedure) Rules 2005 rr 9.08, 9.09.10
(WA) Rules of the Supreme Court O 18 rr 7-9.
2 Survival of actions deals with the survival of and the personal representatives right to continue, or liability to have continued against him or her as the party representing the deceased, an action started by or against the deceased during his or her lifetime. 3 (ACT) Civil Law (Wrongs) Act 2002 s 15(1). See also (ACT) Court Procedure Rules 2006 rr 231233. (NT) Law Reform (Miscellaneous Provisions) Act 1956 s 5(1). See also (NT) Supreme Court Rules rr 9.08, 9.09.
(NSW) Law Reform (Miscellaneous Provisions) Act 1944 s 2(1). See also (NSW) Uniform Civil Procedure Rules 2005 r 6.30.
(QLD) Succession Act 1981 s 66(1). See also (QLD) Uniform Civil Procedure Rules 1999 rr 71-73.
(SA) Survival of Causes of Action Act 1940 s 2. See also (SA) Supreme Court Civil Rules 2006 r 76.
(TAS) Administration and Probate Act 1935 s 27(1). See also (TAS) Supreme Court Rules 2000 r 182. Compare ibid r 306.
(VIC) Administration and Probate Act 1958 s 29. See also (VIC) Supreme Court (General Civil Procedure) Rules 2005 rr 9.08-9.10.
(WA) Law Reform (Miscellaneous Provisions) Act 1941 s 4. See also (WA) Rules of the Supreme Court O 18 rr 7-9.
4 (ACT) Civil Law (Wrongs) Act 2002 s 15(2) (NT) Law Reform (Miscellaneous Provisions) Act 1956 s 5(2)
(NSW) Law Reform (Miscellaneous Provisions) Act 1944 s 2(1)
(QLD) Succession Act 1981 s 66(1)
(SA) Survival of Causes of Action Act 1940 s 2
(VIC) Administration and Probate Act 1958 s 29(1)
(WA) Law Reform (Miscellaneous Provisions) Act 1941 s 4(1).
The (TAS) Administration and Probate Act 1935 s 27 does not exclude defamation. A cause of action for defamation therefore survives in Tasmania.
5 See, for example, the action for seduction was abolished in South Australia by the (SA) Civil Liability Act 1936 s 68 and in the Australian Capital Territory by the (ACT) Civil Law (Wrongs) Act
2002 s 210. 6 (NT) Law Reform (Miscellaneous Provisions) Act 1956 s 5(2) (NSW) Law Reform (Miscellaneous Provisions) Act 1944 s 2(1)
The (CTH) Family Law Act 1975 s 120 abolishes the actions for damages for adultery and for enticement which, under the following provisions, do not survive death:
(NT) Law Reform (Miscellaneous Provisions) Act 1956 s 5(2)
(VIC) Administration and Probate Act 1958 s 29(1) (inducing the spouse to leave; adultery is not mentioned)
7 Sugden v Sugden [1957] P 120 at 134; [1957] 1 All ER 300 per Lord Denning LJ. See also Premiership Investments Pty Ltd v White Diamond Pty Ltd (1995) 61 FCR 178; (1995) 133 ALR 64; BC9501552 at 10 per Nicholson J. 8 These words are used in all jurisdictions: (ACT) Civil Law (Wrongs) Act 2002 s 15(1)
(NT) Law Reform (Miscellaneous Provisions) Act 1956 s 5(1)
(TAS) Administration and Probate Act 1935 s 27(1)(a)
9 Sugden v Sugden [1957] P 120 at 135; [1957] 1 All ER 300 per Lord Denning LJ. See also Northern Territory v Public Trustee (2001) 11 NTLR 134; 165 FLR 42; BC200107687 at [10] per Mildren J. 10 McEvoy v Public Trustee (1989) 16 NSWLR 92 at 100 per Powell J. See also King v Condon (2009) 1 ASTLR 621; [2009] 2 Qd R 143; [2009] QSC 067; BC200902341 at [18][19] per de Jersey CJ. 11 Crowder v Jones [1975] Tas SR 143. 12 McEvoy v Public Trustee (1989) 16 NSWLR 92 at 102 per Powell J. See also Coffey v Bennett [1961] VR 264 at 267 per Sholl J. Compare Re Shannon (1935) 35 SR (NSW) 516; 52 WN (NSW) 171; In the Estate of Wardle (decd); Houlgrave v Wardle (1979) 22 SASR 139 at 143-4; 5 Fam LR 385 per Zelling J; Re Hawke (decd); Hawke v Public Trustee [1957] NZLR 152; Read v Nicholls [2004] VSC 66; BC200402114 at [40][41] per Nettle J. 13 (QLD) Succession Act 1981 s 66(6). The paragraph below is current to 29 September 2010
[395-5525] Contractual causes of action The terms of provisions relating to causes of action1 are widely worded to include causes of action arising under contract as well as in tort, and it follows that contractual causes of action survive the death of a person against, or for the benefit of, the persons estate.2
In New South Wales, an employees statutory right of appeal against a decision to dismiss him or her, although appearing to be merely procedural, also creates substantive rights which are transmissible, and may be enforced by the employees executor after the employees death.3
Notes 1 For the meaning of causes of action see [395-5520]. 2 (ACT) Civil Law (Wrongs) Act 2002 s 15(1) (NT) Law Reform (Miscellaneous Provisions) Act 1956 s 5(1)
(TAS) Administration and Probate Act 1935 s 27(1)
Even at common law if one party to a contract died, the right of action survived for the benefit of or against the personal representative of the deceased party, for the maxim actio personalis moritur cum persona applied not to contracts but to torts: Raymond v Fitch (1835) 2 Cr M & R 588 at 597, 598; 150 ER 251 at 254, 255 per Lord Abinger; Ricketts v Weaver (1844) 12 M & W 718; 152 ER 1388; Peebles v Oswaldtwistle Urban District Council [1896] 2 QB 159; Otter v Church, Adams, Tatham & Co [1953] Ch 280; [1953] 1 All ER 168; [1953] 1 WLR 156. Actio personalis moritur cum persona means that a personal right of action dies with the person see Encyclopaedic Australian Legal Dictionary.
A personal representative can sue and be sued on the contracts of the deceased: Beckham v Drake (1849) 2 HL Cas 579 at 596; 9 ER 1213 at 1219 per Williams J; Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492 at 515; 16 ALR 553; [1910] HCA 44; BC1000033 per Isaacs J. In general, since their interests are representative only, personal representatives are liable only to the extent of the assets which have come or which will in future come into their hands: Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492 at 515-16; 16 ALR 553; [1910] HCA 44; BC1000033 per Isaacs J.
3 Managing Director, New South Wales Technical and Further Education Commission v Fines (1993) 32 NSWLR 385; 51 IR 193 (considering (NSW) Government and Related Employees Appeal Tribunal Act 1980 (repealed) s 24). The paragraph below is current to 29 September 2010
[395-5530] Contracts personal to one party Contracts which are in nature personal to one party do not survive the death of either party: they terminate by frustration.1 However, rights which have accrued under the contract during life generally survive the death for example, a contract of personal service is frustrated by and terminates with the death of the servant, but wages due to the servant at the time of death may be claimed by the servants personal representative.2 Notes 1 Stubbs v Holywell Railway Co (1867) LR 2 Ex 311; 16 LT 631 (consultant to be paid by instalments died while two instalments were still due; contract dissolved, but his representative was entitled to the unpaid instalments); Farrow v Wilson (1869) LR 4 CP 744; [1861-73] All ER Rep 846 (contract of personal service); Graves v Cohen (1930) 46 TLR 121 (contract with jockey to ride horses for owner frustrated by death of owner); Lobb v Vasey Housing Auxiliary (War Widows Guild) [1963] VR 239 at 245-6 per Hudson J (contract to create life tenancy discharged by death of life tenant before entry onto the property; dependent on the terms of the contract). 2 Stubbs v Holywell Railway Co (1867) LR 2 Ex 311; 16 LT 631. The paragraph below is current to 29 September 2010
[395-5535] Other causes of action The survival of other causes of action is outlined below. (1) At common law personal representatives could not sue, nor could they be sued, in relation to any tort committed by or against a deceased person during life.1 Legislation has reversed the principle and, except for causes of action for defamation and seduction, causes of action for tort now survive the death of the tortfeasor or the injured party.2 (2) The common law principle that a personal right dies with the person entitled has no application to rights created by statute, and the question whether such rights survive the death is to be decided according to the construction of the statute.3 (3)
The personal representative may sue in respect of a statutory duty owed to the deceased.4 (4) Where an applicant for family provision dies before an award of family provision is made, the question whether the right to claim survives the death depends on the construction of the particular family provision statute.5 At the same time, the principle has been strongly laid down that the right which an eligible person has to claim family provision is personal to the applicant, because assessment of the claim and deciding it involves consideration of matters wholly personal to the applicant.6 (5) A right to apply for a declaration invalidating a notice of extradition given by the Minister is not transmissible after death, and not a cause of action within the meaning of section 29(1) of the (VIC) Administration and Probate Act 1958.7 Notes 1 Raymond v Fitch (1835) 2 Cr M & R 588 at 597; 150 ER 251 at 254 per Lord Abinger; Rose v Ford [1937] AC 826 at 841-2; [1937] 3 All ER 359 per Lord Wright (torts of negligence causing personal injuries did not survive death). See also [395-5525]. See too, for example, Stephenson v Human Rights and Equal Opportunity Commission (1996) 139 ALR 678, Fed C of A; Northern Territory v Public Trustee (NT) (2001) 11 NTLR 134; BC200107687. 2 (ACT) Civil Law (Wrongs) Act 2002 s 15(1)(a) (NT) Law Reform (Miscellaneous Provisions) Act 1956 s 5(1)
(NSW) Law Reform (Miscellaneous Provisions) Act 1944 s 2(1). See also Fitch v Hyde-Cates (1982) 150 CLR 482; 39 ALR 581; 56 ALJR 270 (calculation of damages for tort).
(SA) Survival of Causes of Action Act 1940 s 2. See also Minister of Works v Pinchbeck [1969] SASR 240 ((SA) Survival of Causes of Action Act 1940 s 4, which provides that proceedings are not to be taken more than six months after grant of probate or administration, bound the Crown).
(TAS) Administration and Probate Act 1935 s 27(1)
(VIC) Administration and Probate Act 1958 s 29(1).
3 Dean v Wiesengrund [1955] 2 QB 120; [1955] 2 All ER 432; United Collieries Ltd v Simpson
[1909] AC 383; (1909) 101 LT 129; Stephenson v Human Rights and Equal Opportunity Commission (1996) 139 ALR 678, Fed C of A; Northern Territory v Public Trustee (NT) (2001) 11 NTLR 134; BC200107687; Ansett Australia v Dale [2001] 22 NSWCA 314; BC200105587; Suck v State Government Insurance Commission (2003) 85 SASR 344; (2003) 226 LSJS 405; BC200301488. 4 Peebles v Oswaldtwistle Urban District Council [1896] 2 QB 159; Darlington v Roscoe & Sons [1907] 1 KB 219; (1906) 96 LT 179; United Collieries Ltd v Simpson [1909] AC 383; (1909) 101 LT 129; Suck v State Government Insurance Commission; (2003) 85 SASR 344; (2003) 226 LSJS 405; BC200301488. 5 In the Estate of Wardle (decd); Houlgrave v Wardle (1979) 22 SASR 139 at 143-4; 5 Fam LR 385 per Zelling J; McEvoy v Public Trustee (1989) 16 NSWLR 92 at 100 per Powell J. See also Re Shrimpton (decd); Public Trustee v Willis [1962] NZLR 1000. As to family provision generally see [395-6500]-[395-7210]. 6 McEvoy v Public Trustee (1989) 16 NSWLR 92 at 100, at 102 per Powell J; Coffey v Bennett [1961] VR 264 at 267 per Sholl J; Sugden v Sugden [1957] P 120; [1957] 1 All ER 300. However, there are some circumstances where the right of an applicant to claim family provision survives the death of the applicant: See Read v Nicholls [2004] VSC 66; 52 WN (NSW) 171; BC200402114 (Nettle J cited the reasoning of Long Innes CJ in Eq in Re Shannon (1935) SR (NSW) 516 that the Court ought to make an order despite the claimants death as the effect of such an order would merely increase the estate which would pass under the claimants will) (disapproved in McEvoy v Public Trustee (1989) 16 NSWLR 92 at 99, at 100 per Powell J); In the Estate of Wardle (decd); Houlgrave v Wardle (1979) 22 SASR 139; 5 Fam LR 385 (an order was made in favour of the personal representative of a claimant for family provision who had died after making the application but before the hearing); Re Hawke (decd); Hawke v Public Trustee [1957] NZLR 152 (an order was made in respect of an applicant for family provision who was killed after the hearing but before judgment). Compare Coffey v Bennett [1961] VR 264 at 267-8 per Sholl J. See also Re Shrimpton (decd); Public Trustee v Willis [1962] NZLR 1000. 7 Kalejs v Minister for Justice and Customs (2001) 111 FCR 442; BC200107770. The paragraph below is current to 29 September 2010
[395-5540] Survival of actions At common law, proceedings initiated during the lifetime of the parties abate on the death of a party, but may be revived even where there is no express power given by legislation to do so.1 However, legislation creating a right may allow the court to hold that a proceeding begun during the life of a party survives the partys death, and so makes it unnecessary to begin new proceedings.2 The proceedings may be reconstituted with the proper parties, and the court has an inherent jurisdiction to mould a convenient procedure if necessary.3 Even where the cause of action would not have survived, an executor may carry on an appeal commenced by his or her testator.4 Where a party dies but a cause of action in the proceedings survives, the proceedings do not abate by reason of death.5 The Supreme Court Rules provide a mechanism for reaching finality if there is a failure to proceed within a specified time after the death of a party.6 Notes
1 Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139; Kalejs v Minister for Justice and Customs (2001) 111 FCR 442; BC200107770 (defamation case not transmissible, therefore cannot be revived by the court). 2 Stephenson v Human Rights and Equal Opportunity Commission (1996) 139 ALR 678, Fed C of A, Full Court. 3 Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139. See also Pacific Acceptance Corp Ltd v Forsyth (1969) 89 WN (Pt 1) (NSW) 316. 4 Ryan v Davies Bros Ltd (1921) 29 CLR 527; 28 ALR 178. 5 (ACT) Court Procedure Rules 2006 r 231 (NT) Supreme Court Rules r 9.09
(QLD) Uniform Civil Procedure Rules 1999 rr 71-73
(SA) Supreme Court Civil Rules 2006 r 76
(TAS) Supreme Court Rules 2000 r 182. Compare ibid r 306.
(VIC) Supreme Court (General Civil Procedure) Rules 2005 r 9.09
(WA) Rules of the Supreme Court O 18 r 7.
6 (ACT) Court Procedure Rules 2006 r 233 (NT) Supreme Court Rules r 9.10
(QLD) Uniform Civil Procedure Rules 1999 r 73
(SA) Supreme Court Civil Rules 2006 r 76
(TAS) Supreme Court Rules 2000 r 306
(VIC) Supreme Court (General Civil Procedure) Rules r 9.10
(WA) Rules of the Supreme Court O 18 r 9.
Source [Halsbury's Laws of Australia]
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(9) LIMITATION PERIODS
The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-5595] Breaches of duty by personal representatives The statutes of limitation lay down periods of limitation for actions with respect to breaches of trust or breaches of duty.1 The limitation periods apply to breaches of duty by a personal representative.2 Notes 1 (ACT) Limitation Act 1985 ss 27-29 (NT) Limitation Act 1981 ss 32-35 (NSW) Limitation Act 1969 ss 47-50 (QLD) Limitation of Actions Act 1974 ss 27, 28 (SA) Limitation of Actions Act 1936 ss 31, 32 (TAS) Limitation Act 1974ss 24, 25 (VIC) Limitation of Actions Act 1958 ss 21, 22 (WA) Limitation Act 2005 ss 13, 27. See limitation of actions [255-25]. 2 (ACT) Limitation Act 1985 Dictionary (definition of trust includes duties incident to office of personal representative) (NT) Limitation Act 1981 s 4(1) (definition of trust includes duties incident to office of personal representative) (NSW) Limitation Act 1969 s 11(1) (definition of trust includes duties incident to office of personal representative) (QLD) Limitation of Actions Act 1974 s 5(1) (incorporates definition of trust from (QLD) Trusts Act 1973 s 5(1), which defines trust to include duties incident to office of personal representative) (SA) Limitation of Actions Act 1936 s 3(1) (definition of person through whom another person claims)
(TAS) Limitation Act 1974 s 2(1) (incorporates definition of trust from (TAS) Trustee Act 1898 s 4, which defines trust to include duties incident to office of the representative of a deceased person) (VIC) Limitation of Actions Act 1958 s 3(1) (incorporates definition of trust from (VIC) Trustee Act 1958 s 3(1), which defines trust to include duties incident to office of personal representative) There are no specific provisions relating to breach of trust or breach of duty in the (WA) Limitation Act 2005. However see (WA) Limitation Act 2005 s 3(1) (incorporates definition of trust from (WA) Trustees Act 1962 s 6(1), which defines 'trust' to include duties incident to office of personal representative). See further Re Diplock; Diplock v Wintle [1948] Ch 465 at 507-16; [1948] 2 All ER 318 per Lord Greene . The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-5600] Causes of action which survive death The legislation does not make general provision for suspension or extension of time where death has occurred,1 and it follows that the ordinary periods of limitation apply. The court has the power to make orders for the addition, removal or re-arrangement of parties and the further conduct of proceedings which are interrupted by the death of a party.2 The court may give leave to amend the pleadings.3 This is so even if a different cause of action is added or substituted and the limitation period for the cause of action which is added or substituted has expired.4 Notes 1 However, the (ACT) Limitation Act 1985 has special provisions in relation to actions against the estate of a deceased person and personal injury actions by the estate of a deceased person: ibid ss 37, 38.2 (ACT) Court Procedure Rules 2006 r 231 (NT) Supreme Court Rules rr 9.06, 9.09 (NSW) Uniform Civil Procedure Rules 2005 r 6.30 (QLD) Uniform Civil Procedure Rules 1999 r 72 (SA) Supreme Court Civil Rules 2006 r 75 (TAS) Supreme Court Rules 2000r 306 (VIC) Supreme Court (General Civil Procedure) Rules r 9.09 (WA) Rules of the Supreme Court O 18 r 7. 3 (ACT) Court Procedure Rules 2006 r 502 (NT) Supreme Court Rules r 36.01 (NSW) Uniform Civil Procedure Rules 2005 r 19.16 (QLD) Uniform Civil Procedure Rules 1999 r 74
(SA) Supreme Court Civil Rules 2006 r 57 (TAS) Supreme Court Rules 2000 r 185 (VIC) Supreme Court (General Civil Procedure) Rules r 36.01 (WA) Rules of the Supreme Court O 21 r 5. 4 (ACT) Court Procedure Rules 2006 r 503 (NT) Supreme Court Rules r 36.01 (QLD) Uniform Civil Procedure Rules 1999 r 376 (TAS) Supreme Court Rules 2000 rr 185, 427 (VIC) Supreme Court (General Civil Procedure) Rules r 36.01(6) (WA) Rules of the Supreme Court O 21 r 5. (NSW) Civil Procedure Act 2005 s 65. See also Greater Lithgow City Council v Wolfenden [2007] NSWCA 180 . See further McGee v Yeomans [1977] 1 NSWLR 273 . As to survival of causes of action generally see [395-5520]-[395-5540]. The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-5605] Litigation between estate and stranger Where litigation between a stranger to the estate and the estate is contemplated and a grant has been made, the action is brought by or against the personal representatives.1 Where no grant has been made, the court can make a general grant or a special grant of administration ad litem (for the purpose of litigation)2 or if there is a dispute as to who will take out a grant, the court can appoint an administrator pendente lite (pending litigation).3 Notes 1 Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492 at 514-16, 520; 16 ALR 553; [1910] HCA 44; BC1000033 per Isaacs J; Greenway v McKay (1911) 12 CLR 310 at 318 per Barton J, at 319 per OConnor J; 17 ALR 350 ; Re Butler [1969] QWN 48 ; Re Aylmore (decd) [1971] VR 375 at 376 per Lush J ; Smith v Mackrill [1978] Qd R 403 ; Marshall v DG Sundin & Co Pty Ltd (1989) 16 NSWLR 463 ; Darrington v Caldbeck (1990) 20 NSWLR 212 . See also Re Smith; Ex parte Callan [1968] 1 NSWR 443 at 448-9; (1968) 87 WN (Pt 1) (NSW) 595 per Isaacs J . See further Blackstone W, Commentaries, 1st ed, 1765-1769 (facsimile ed University of Chicago Press 1979), Vol 2, p 507. As to litigation by or against strangers generally see [395-5505].2 (ACT) Administration and Probate Act 1929 ss 9 (general power to grant probate and administration), 12, 24, 25, 26 (NT) Administration and Probate Act 1969 ss 14 (general power to grant probate and administration), 22, 33, 34 (NSW) Probate and Administration Act 1898 ss 40 (general power to grant probate and administration), 63, 74, 75, 76
(QLD) Succession Act 1981 s 6 (SA) Administration and Probate Act 1919 s 5 (general power to grant probate and administration), 36; (SA) Public Trustee Act 1995 s 9 (TAS) Administration and Probate Act 1935 ss 8, 15 (general power to grant probate and administration) (VIC) Administration and Probate Act 1958 ss 6 (general power to grant probate and administration), 15 (WA) Administration Act 1903 ss 6 (general power to grant probate and administration), 25, 37. As to administration ad litem see [395-3275]. 3 (ACT) Administration and Probate Act 1929 s 23 (NT) Administration and Probate Act 1969 s 32 (NSW) Probate and Administration Act 1898 s 73 (QLD) Succession Act 1981s 6. See also (QLD) Public Trustee Act 1978 s 36. (SA) Administration and Probate Act 1919 s 5; (SA) Probate Rules 2004 R 70; (SA) Public Trustee Act 1995 s 12 (TAS) Administration and Probate Act 1935 s 19 (VIC) Administration and Probate Act 1958 s 22 (WA) Administration Act 1903 s 35. As to administration pendente lite see [395-3255]-[395-3265].
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(10) PARTIES
The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-5660] Need for executor to be joined as party An executor who has not taken out probate is an unnecessary party and is incompetent to represent the estate.1 An executor, administrator or trustee is a necessary party to an administration suit, and if he or she does not consent to be joined as a plaintiff, he or she must be made a defendant.2 Beneficiaries and claimants need not be parties.3 The court may order that proceedings involving a deceased person or an estate who has no personal representative continue in the absence of a personal representative.4 This rule has no application where the estate to be represented is the very estate which is being administered in the suit.5 Notes 1 Dredge v Matheson (1879) 5 VLR (E) 266 ; Watkins v Combes (1921) 29 CLR 317 ; Byers v Overton Investments Pty Ltd (2001) 109 FCR 554; 186 ALR 280; [2001] FCA 760; BC200103223 . See also Hewitt v Gardner [2009] NSWSC 705; BC200906495 at [32][74] per Ward J (discussion of authorities).2 See, for example:(NT) Supreme Court Rules r 54.03 (NSW) Uniform Civil Procedure Rules 2005 r 7.11 (VIC) Supreme Court (General Civil Procedure) Rules r 54.03. See Ninnis v Heales (1885) 11 VLR 355 (where an executor has intermeddled, he or she is a necessary party to an administration suit). See also Nagel v Hough (1927) 27 SR (NSW) 418; 44 WN (NSW) 121 (approved Cash v Nominal Defendant (1969) 90 WN (Pt 1) (NSW) 77 at 79 per Brereton J). 3 (ACT) Court Procedure Rules 2006 r 256 (NT) Supreme Court Rules r 16.02 (NSW) Uniform Civil Procedure Rules 2005 r 7.12 (TAS) Supreme Court Rules 2000 r 305. Compare ibid rr 184, 303. (VIC) Supreme Court (General Civil Procedure) Rules 2005 r 54.03 (WA) Rules of the Supreme Court O 18 r 14. Compare (QLD) Uniform Civil Procedure Rules 1999 r 62 and (SA) Supreme Court Civil Rules 2006 r 83. 4 (ACT) Court Procedure Rules 2006 r 261
(NT) Supreme Court Rules rr 16.01, 16.03 (NSW) Uniform Civil Procedure Rules 2005 r 7.10 (see Government Insurance Office v Johnson [1981] 2 NSWLR 617 at 636-8 per Glass JA) (TAS) Supreme Court Rules 2000 r 184(2)(a) (VIC) Supreme Court (General Civil Procedure) Rules 2005 r 16.03 (WA) Rules of the Supreme Court O 18 rr 13, 15. As to South Australia see (SA) Supreme Court Civil Rules 2006 r 83. 5 Silver v Stein (1852) 1 Drew 295; 61 ER 465 . The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-5665] Joinder of other interested persons It is not usually necessary for all persons with an interest in or a claim against the estate to be joined as parties.1 However, the plaintiff may make persons who are beneficially interested parties.2 The court may order the joinder of a person as a party if this is necessary to determine the dispute effectually and completely.3 The practice is to join beneficiaries whose interests might be adversely affected by the decision.4 The beneficiary should be joined if, because of the nature of the litigation, the personal representative cannot satisfactorily represent the beneficiaries for example, where the personal representatives are being required to account.5 Where proceedings are brought by or against a personal representative, it is not necessary to join interested beneficiaries, and any order made is binding on them6 unless the personal representative could not, or did not, in fact represent the interests of the beneficiaries.7 Notes 1 (ACT) Court Procedure Rules 2006 r 256 (NT) Supreme Court Rules r 16.02 (NSW) Uniform Civil Procedure Rules 2005 rr 7.9, 7.12 (QLD) Uniform Civil Procedure Rules 1999 Ch 3 Pt 1 Div 2 (TAS) Supreme Court Rules 2000 r 305 (VIC) Supreme Court (General Civil Procedure) Rules 2005 rr 16.02, 54.03 (WA) Rules of the Supreme Court O 18 r 14(1). Compare (SA) Supreme Court Civil Rules 2006 r 83. See also Cardigan v Curzon Howe [1901] 2 Ch 479 at 485; (1901) 19 WR 116 per Byrne J . Usually the personal representative sufficiently represents the beneficiaries interests: Vasiljev v Public Trustee [1974] 2 NSWLR 497; (1973) 92 FLR 67 . See also Re Will of McKillop (1983) 65 FLR 392 , SC(ACT). See further [395-5500].
2 (ACT) Court Procedure Rules 2006 rr 210-216 (NT) Supreme Court Rules rr 9.01, 9.02 (NSW) Uniform Civil Procedure Rules 2005 r 7.12 (QLD) Uniform Civil Procedure Rules 1999 rr 62, 633 (SA) Supreme Court Civil Rules 2006 r 74 (TAS) Supreme Court Rules 2000 rr 177, 178, 179. Compare ibid rr 184, 185. (VIC) Supreme Court (General Civil Procedure) Rules 2005 r 9.02 (WA) Rules of the Supreme Court O 18 r 4. 3 (ACT) Court Procedure Rules 2006 rr 210-6, 256 (NT) Supreme Court Rules r 9.06 (NSW) Uniform Civil Procedure Rules 2005 r 6.27 (QLD) Uniform Civil Procedure Rules 1999 r 62(2) (SA) Supreme Court Civil Rules 2006 r 74 (TAS) Supreme Court Rules 2000 rr 184, 185 (VIC) Supreme Court (General Civil Procedure) Rules 2005 rr 9.06, 16.02(2) (WA) Rules of the Supreme Court O 18 rr 6(2), 14(2). 4 James v Gard (1887) 13 VLR 908 at 912; 9 ALT 111 per A'Beckett J .5 May v Newton (1887) 34 Ch D 347; 56 LT 140 . See further [395-5500].6 (ACT) Court Procedure Rules 2006 r 256 (NT) Supreme Court Rules r 16.02(1)(b) (NSW) Uniform Civil Procedure Rules 2005 r 7.9 (TAS) Supreme Court Rules 2000r 305 (VIC) Supreme Court (General Civil Procedure) Rules 2005 rr 9.06, 16.02(1) (WA) Rules of the Supreme Court O 18 r 14. See (QLD) Uniform Civil Procedure Rules 1999 r 62(1). Normally, the personal representative sufficiently represents the interests of the beneficiaries see cases in note 1 above. If not, ibid r 62 enables the beneficiary to be joined as a party. See (QLD) Succession Act 1981 s 6(1) (wide general powers given). Compare (SA) Supreme Court Civil Rules 2006 r 83. 7 (NSW) Uniform Civil Procedure Rules 2005 r 7.9 (QLD) Uniform Civil Procedure Rules 1999 r 62. See also note 6 above. (WA) Rules of the Supreme Court O 18 r 14. The paragraph below is current to 29 September 2010
To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-5670] Person may not be both plaintiff and defendant A person who is a defendant in a personal capacity cannot be a plaintiff, in the same case, in the capacity of personal representative. Rather, the necessary words may be added into his or her description as defendant.1 In some jurisdictions, there are statutory exceptions to this rule under which the trustee may be plaintiff in one capacity and defendant in another.2 Notes 1 Re Bubnich; Marian v Bubnich [1965] WAR 138 at 140 See, for example:(QLD) Trusts Act 1973 s 59 (WA) Trustees Act 1962 s 57. per Wolff CJ, at 141 per Negus J.2
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(11) LIABILITIES OF PERSONAL REPRESENTATIVES
The paragraph below is current to 29 September 2010 [395-5725] Personal representative not obliged to be partner in deceaseds partnership The duty of the personal representatives is to meet the deceaseds obligations and to carry out
the mind, will and intent of their testator.1 The testator or intestate has no power, through the arrangements he or she made during life, to subject his or her personal representatives to the liabilities of partners without their consent.2 Notes 1 Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492 at 515-16; 16 ALR 553; [1910] HCA 44; BC1000033 per Isaacs J.2 Re F [1941] VLR 6; [1941] ALR 20 (this is true even if the terms of the partnership agreement are such that the personal representatives refusal to become a partner amounts to a breach of the partnership agreement). The judgment in Re F [1941] VLR 6; [1941] ALR 20 is complex and it appears that in some circumstances a personal representative who declines to become a partner may create liability in contract or tort. The paragraph below is current to 29 September 2010 [395-5730] Standard of behaviour required Generally, it is the duty of a trustee to conduct the business of the trust with the same care as an ordinary prudent person of business would extend towards his or her own affairs, bearing in mind that the business of the trustee is looking after the property of others for the short and long term benefit of others for whom the trustee felt morally bound to provide.1 The standard to be applied is the standard of the reasonably prudent person of business, and it is immaterial that the trustees are not people of business.2 Supine negligence, even of unqualified trustees, is a breach of trust.3 The trustee may incur a prudent degree of risk, but must avoid all investments which are attended with hazard.4 The executors duty to perform the trust honestly and in good faith for the benefit of the beneficiaries is the minimum necessary to give substance to the trusts and thus no exemption clause can absolve an executor from liability for knowingly participating in a fraudulent breach of trust.5 The executor must also act reasonably.6 The executor is bound by a most direct trust to deal properly with the assets and to apply them in due course of administration of the estate.7 An executor is personally liable in equity for all breaches of the ordinary trusts which are considered in equitable courts to arise from his or her office.8 The personal representative is a type of trustee,9 and hence is a fiduciary, and as a fiduciary will have to account for unauthorised profits10 and make compensation for breach of trust. 11 As a fiduciary, the personal representative may not have a personal interest which conflicts or may possibly conflict with the interest of the estate which the personal representative is bound to protect.12 The court should not be overly concerned about minor breaches of trust, especially where they tend to benefit the trust.13 The standard is not as onerous as it once was.14 The court will not be quick to fix liability upon a trustee who has committed no more than an error of judgment provided he or she is honest and reasonably competent and acts with reasonable care, prudence and circumspection.15 Notes 1 Bartlett v Barclays Bank Trust Co Ltd (No 1) [1980] Ch 515 at 531; [1980] 1 All ER 139; [1980] 2 WLR 430 per Brightman LJ (court considered the basic duties of a trustee); Pateman v Heyen (1993) 33 NSWLR 188 at 197; BC9303950 per Cohen J . See also Austin v Austin (1906) 3 CLR 516 at 525; [1906] VLR 258; (1906) 12 ALR 159 per Griffith CJ ; Longhurst v Waite (1920) SALR 407 at 415 per Poole J; Commonwealth v Cornwell (2007) 229 CLR 519; (2007) 234 ALR 148; BC200702711 .2 Fouche v Superannuation Fund Board (1952) 88 CLR 609 at 641; 25 ALJR 778 per Dixon, McTiernan and Fullagar JJ. See also Austin v Austin (1906) 3 CLR 516 at 525; [1906] VLR 258; (1906) 12 ALR 159 per Griffith CJ .3 Fouche v
Superannuation Fund Board (1952) 88 CLR 609 at 641; 25 ALJR 778 per Dixon, McTiernan and Fullagar JJ.4 Bartlett v Barclays Bank Trust Co Ltd (No 1) [1980] Ch 515 at 531; [1980] 1 All ER 139; [1980] 2 WLR 430 per Brightman J (approving Learoyd v Whiteley (1887) LR 12 App Cas 727 at 733; 58 LT 93 per Watson LJ); Reid v Hubbard [2003] VSC 387; BC200305989 .5 Reid v Hubbard [2003] VSC 387; BC200305989 at [24] and [25] per Nettle J (an instructive judgment on breach of trust by an executor, and on the level of costs to be awarded against an executor who acts in flagrant breach of trust).6 Pateman v Heyen (1993) 33 NSWLR 188 at 199200; BC9303950 per Cohen J; Reid v Hubbard [2003] VSC 387; BC200305989 at [33]-[34] per Nettle J .7 Re Marsden; Bowden v Layland (1884) 26 Ch D 783 at 790 per Kay J . See also Stokes v Churchill; Estate of Fryer (1994) NSW ConvR 55-694; BC9302342 at [12].8 Re Marsden; Bowden v Layland (1884) 26 Ch D 783 at 789 per Kay J. In this respect there is no difference between an executor and a trustee: In the Estate of Fryer; Stokes v Churchill (1994) NSW ConvR 55-694; BC9302342.9 Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] ALR 803; BC6400550 .10 Docker v Somes (1834) 2 My & K 655 at 664; [1824-34] All ER Rep 402; (1834) 3 LJ Ch 200; 39 ER 1095 at 1098 per Lord Brougham ; Scott v Scott (1963) 109 CLR 649; [1964] ALR 946; (1963) 37 ALJR 345 .11 Dalrymple v Melville (1932) 32 SR (NSW) 596; 49 WN (NSW) 206 ; Re Dawson; Union Fidelity Trustee Co Ltd v Perpetual Trustee Co Ltd [1966] 2 NSWR 211 at 214; (1966) 84 WN (Pt 1) (NSW) 399 per Street J; Bartlett v Barclays Bank Trust Co Ltd (No 1) [1980] Ch 515; [1980] 1 All ER 139; [1980] 2 WLR 430 . Compare National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1; [1940] VLR 199; [1940] ALR 86 .12 Re Thomson; Thomson v Allen [1930] 1 Ch 203 at 215; (1930) 99 LJ Ch 156 per Clauson J .13 Nissen v Grunden (1912) 14 CLR 297 at 317; 18 ALR 254; [1912] HCA 35 per Isaacs J (The great use of a trustee is to commit judicious breaches of trust). See also Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; (2008) 249 ALR 250; [2008] HCA 42; BC200807738 .14 Fouche v Superannuation Fund Board (1952) 88 CLR 609 at 641; 25 ALJR 778 per Dixon, McTiernan and Fullagar JJ .15 Bartlett v Barclays Bank Trust Co Ltd (No 1) [1980] Ch 515 at 531-2; [1980] 1 All ER 139; [1980] 2 WLR 430 per Brightman J (approving Re Chapman; Cocks v Chapman [1896] 2 Ch 763 at 778; [1895-99] All ER Rep 1104; (1896) 65 LJ Ch 892; 75 LT 196; 12 TLR 625 per Lopes LJ ). The paragraph below is current to 29 September 2010 [395-5735] Standard of care In the context of unremunerated personal representatives, courts are conscious of two opposing forces the need to protect beneficiaries, and the need to be tender towards personal representatives who undertake an onerous task and who should not be discouraged from doing so.1 Executors are entitled to great indulgence because of the thankless nature of the office, unless neglect is proved against them.2 In earlier cases the courts tested the behaviour of personal representatives by an exclusively objective test.3 The modern standard is reasonable care, prudence and circumspection4 but it seems clear that the standard is not applied evenly to all trustees. Thus, paid personal representatives would be tested against a higher standard a paid trustee is expected to exercise a higher standard of diligence and knowledge than an unpaid trustee.5 An even higher standard is required of those who advertise their services.6 Whether the personal representative is paid or not, or is professional or not, are merely some of the elements in a whole framework of circumstances within which the representative must act reasonably.7 It is not the case that personal representatives are liable for breach of trust only if they are guilty of wilful default.8 The honest personal representative is not to be held responsible for a mere error of judgment provided he or she acts with reasonable care, prudence and circumspection.9 Notes 1 Powell v Evans (1801) 5 Ves 839 at 843; 31 ER 886 at 888 per Arden MR; Tebbs v Carpenter (1816) 1 Madd 290 at 298; 56 ER 107 at 110 per Plumer VC ; Re Chapman; Cocks v
Chapman [1896] 2 Ch 763 at 778; [1895-99] All ER Rep 1104; (1896) 65 LJ Ch 892; 75 LT 196; 12 TLR 625 per Lopes LJ . Compare Re Gunning [1918] 1 IR 221 at 226.2 Powell v Evans (1801) 5 Ves 839 at 843; 31 ER 886 at 888 per Arden MR.3 Re Gunning [1918] 1 IR 221 at 224 (an ignorant, uneducated trustee cannot escape from liability by reason of his or her shortcomings; on the other hand, a highly educated person is not to be held to a stricter accountability by reason of his or her superior training. Each must act up to the courts standard of prudence).4 Bartlett v Barclays Bank Trust Co Ltd (No 1) [1980] Ch 515 at 532; [1980] 1 All ER 139; [1980] 2 WLR 430 per Brightman LJ ; Pateman v Heyen (1993) 33 NSWLR 188 at 197; BC9303950 per Cohen J (a prudent person would normally take out fire insurance).5 Re Watermans Will Trusts; Lloyds Bank Ltd v Sutton [1952] 2 All ER 1054 at 1055; [1952] TLR 877 per Harman J, (dicta).6 Re Watermans Will Trusts; Lloyds Bank Ltd v Sutton [1952] 2 All ER 1054 at 1055; [1952] TLR 877 per Harman J (a bank which advertises itself largely in the public press as taking charge of administrations is under a special duty) approved and expanded in Bartlett v Barclays Bank Trust Co Ltd (No 1) [1980] Ch 515 at 534; [1980] 1 All ER 139; [1980] 2 WLR 430 per Brightman LJ .7 See Elders Trustee & Executor Co Ltd v Higgins (1963) 113 CLR 426 at 452; [1964] ALR 408; (1963) 37 ALJR 132 per Dixon CJ, McTiernan and Windeyer JJ .8 Re Luckings Will Trusts; Renwick v Lucking [1967] 3 All ER 726; [1968] 1 WLR 866 at 874 per Cross J.9 Re Chapman; Cocks v Chapman [1896] 2 Ch 763 at 778; [1895-99] All ER Rep 1104; (1896) 65 LJ Ch 892; 75 LT 196; 12 TLR 625 per Lopes LJ. The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-5740] Liability of co-personal representatives and their agents In principle a personal representative is not liable for a breach of duty committed by his or her co-personal representative.1 However, if a personal representative is at fault in allowing or not taking care to prevent another personal representative from committing a breach of duty, then the personal representative becomes personally liable for the breach, which is in fact his or her own.2 These principles are embodied in statute. Thus trustees, including legal and personal representatives,3 are answerable and accountable only for their own acts, receipts, neglects or defaults and not for those of another trustee or personal representative, banker, broker or person with whom moneys or securities are deposited nor for the deficiency or insufficiency of any securities, unless these occur through the trustees or personal representatives own wilful neglect or default.4 The act of one personal representative in taking possession of an estate asset is the act of the others, for the purpose of entitling the others to a joint interest in possession. However, the act of one personal representative in taking possession of an estate asset does not create in the others a new personal liability. Therefore if one personal representative takes and uses an estate asset, the others are not liable for that act.5 Notes 1 Hargthorpe v Milforth (1594) Cro Eliz 318; 78 ER 568; Re Gasquoine; Gasquoine v Gasquoine [1894] 1 Ch 470; (1894) 70 LT 196 .2 Dalrymple v Melville (1932) 32 SR (NSW) 596; 49 WN (NSW) 206 . See also Bartlett v Barclays Bank Trust Co Ltd (No 1) [1980] Ch 515; [1980] 1 All ER 139; [1980] 2 WLR 430 ; Reid v Hubbard [2003] VSC 387; BC200305989 . See also Commonwealth of Australia v Cornwell (2007) 229 CLR 519; (2007) 234 ALR 148; BC200702711 .3 (ACT) Trustee Act 1925 s 2 and Dictionary (NT) Trustee Act 1893 s 82 (NSW) Trustee Act 1925 s 5. See also (NSW) Succession Act 2006 s 55(2). (QLD) Trusts Act 1973 s 5
(SA) Trustee Act 1936 s 4 (TAS) Trustee Act 1898 s 4 (VIC) Trustee Act 1958 s 3 (WA) Trustees Act 1962s 6. 4 (ACT) Trustee Act 1925 s 59(2) (NT) Trustee Act 1893 s 26 (NSW) Trustee Act 1925 s 59(2) (QLD) Trusts Act 1973 s 71 (wilful not required) (SA) Trustee Act 1936 s 35(1), 35(1a) (wrongful is referred to in addition to wilful) (TAS) Trustee Act 1898 s 27(1) (VIC) Trustee Act 1958 s 36(1) (WA) Trustees Act 1962 s 70. The action for account on the basis of wilful default is discussed in [395-5925]. Though the matter is not settled, wilful default in this context probably means that the person is conscious that in doing the act complained of, or in omitting to do the act that he or she ought to have done, the person is committing a breach of his or her duty, or is recklessly careless whether his or her act or omission is a breach of duty or not: Dalrymple v Melville (1932) 32 SR (NSW) 596 at 602; 49 WN (NSW) 206 per Long Innes J; Re Munton; Munton v West [1927] 1 Ch 262 at 274 per Astbury J ; Re Trusts of Leeds City Brewery; Leeds City Brewery Ltd v Platts [1925] 1 Ch 532n; (1925) 94 LJ Ch 502n; Re City Equitable Fire Insurance Co Ltd [1925] Ch 407; [1924] All ER Rep 485; (1925) 133 LT 520 ; McLauchlan v Prince [2001] WASC 43 at [16]; BC200100391 per Sanderson M ; Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146 at 163 per Giles JA, CA(NSW). See further Stannard J E, Wilful Default (1979) 43 Conveyancer 345 at 359. 5 Nation v Tozer (1834) 1 Cr M & R 172; 149 ER 1041.
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(12) DEVASTAVIT
The paragraph below is current to 29 September 2010 [395-5795] Devastavit or waste Devastavit is a breach of duty or failure by the personal representative of an estate to properly preserve, protect and administer estate assets which causes loss to the estate and renders the personal representative liable for losses to the estate arising from the breach.1 It is a mismanagement of the estate and effects of the deceased, in squandering and misapplying the assets contrary to the duty imposed on them.2 A personal representative is liable by devastavit not only for loss arising by a direct abuse of the assets by spending or consuming them but also for waste by such acts of negligence and wrong administration as will disappoint the claimants on the assets. Liability may include a loss arising to the estate by reason of the estate having to bear charges which it would not have had to bear but for the culpable negligence of the executor.3 Notes 1 For the definition of devastavit see Encyclopaedic Australian Legal Dictionary. 2 Halfhide v Beaven [2003] NSWSC 1207 at [43]; BC200307893 per Barrett J .3 Re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 176-7; (1898) 77 LT 508 per Vaughan Williams LJ. The paragraph below is current to 29 September 2010 [395-5800] Devastavit is an action in tort An action on a devastavit is an action in tort. 1 It is an action on the case.2 Loss or damage must therefore be proved.3 A person who is not a personal representative, but causes a personal representative to commit a devastavit, is liable for the loss caused.4 Notes 1 Re Blow; Governors of St Bartholomews Hospital v Cambden [1914] 1 Ch 233 at 240 per Hardy MR .2 National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1 at 18; [1940] VLR 199; [1940] ALR 86 per Latham CJ. Compare (CLR) at 36 per Dixon J.3 Cases on devastavit are premised on the requirement that the behaviour of the defendant caused loss see, for example, Hayward v Kinsey (1701) 12 Mod Rep 568 at 573; 88 ER 1526 at 1529 per Holt CJ; Re Moore (1842) 2 Mont D & De G 616; Shepherd v Goodey (1866) 5 SCR (NSW) Eq 84; Re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 176-7; (1898) 77 LT 508 per Vaughan Williams LJ (where loss was stated to be a requirement); National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1; [1940] VLR 199; [1940] ALR 86 ; Re Tankard; Tankard v Midland Bank Executor and Trustee Co Ltd [1942] Ch 69 at 73; [1941] 3 All ER 458 per Uthwatt J (where loss was stated to be a requirement).4 See Shepherd v Goodey (1866) 5 SCR (NSW) Eq 84. The paragraph below is current to 29 September 2010
[395-5805] Devastavit depends on wrongfulness There must be a wrong for there to be a devastavit.1 A devastavit would include a claim for damages for negligent administration if the negligence and the damage were proved.2 The violation of the duties of administration by the personal representative is termed a devastavit. This term is applicable not only to a misuse by the representative of the deceaseds effects, as by spending or converting them to his or her own use, but also to acts of maladministration or negligence.3 If there is a breach of duty the court may make a declaration as to the breach and direct an inquiry as to damages.4 Many cases treat conduct which causes loss to the estate and is clearly a devastavit simply as breach of trust.5 Notes 1 Lacons v Warmoll [1907] 2 KB 350 at 360 per Lord Alverstone CJ, at 366 per Buckley LJ; (1907) 97 LT 374 ; Re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 176-177; (1898) 77 LT 508 per Vaughan Williams LJ . See also National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1; [1940] VLR 199; [1940] ALR 86 .2 Re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 177; (1898) 77 LT 508 per Vaughan Williams LJ . See further [395-5795].3 Re Tankard; Tankard v Midland Bank Executor and Trustee Co Ltd [1942] Ch 69 at 73; [1941] 3 All ER 458 per Uthwatt J .4 Taylor v Taylor (1870) LR 10 Eq 477; 23 LT 134; Re Bewley's Estate; Jefferys v Jefferys (1871) 24 LT 177; 19 WR 464 .5 See notes 1-4 above. The paragraph below is current to 29 September 2010 [395-5810] Conduct which amounts to devastavit Executors may be guilty of a devastavit by direct abuse, such as spending or consuming the effects of the deceased, and also by such acts of negligence and wrongful administration as will disappoint creditors of their debts.1 Accordingly, devastavit is, for example, a remedy for improperly paying away assets and the right of a creditor to maintain an action for devastavit against the personal representative is a corollary of the latters duty to avoid acts of mismanagement of the estate which might prejudice the creditors right to be paid.2 Notes 1 Gwillim H, A New Abridgement of the Law, Mathew Bacon, 7th ed, Longman Rees, London, 1832; Re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 176; (1898) 77 LT 508 per Vaughan Williams LJ .2 Standard Insurance Co Ltd (in liq) v Sidey [1967] NZLR 86 at 90 per Woodhouse J. The paragraph below is current to 29 September 2010 [395-5815] Failure to account and failure to take out grant Failure to account is not itself a devastavit. The remedy is to seek an account in the ordinary way.1 A failure to take out a grant is not a devastavit. The proper remedy is to cite the executor (to take out a grant or renounce).2 Notes 1 Re Kidd; Kidd v Kidd (1894) 70 LT 648; 42 WR 571.2 Re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 177; (1898) 77 LT 508 per Vaughan Williams LJ . The paragraph below is current to 29 September 2010 [395-5820] Causing loss or additional expense to estate Liability on a devastavit may include loss arising to the estate by reason of having to bear charges which the estate would not have had to bear but for the culpable negligence of the personal representative.1 The personal representative can be required by action as on a devastavit to account for assets received or which might have been received, or to make good the loss to the estate arising from the personal representatives negligent administration (an equitable development).2 Examples of such losses
or additional expenses are the: (1) failure to call in improper investments, especially debts;3 (2) failure to pay debts, particularly interest bearing debts;4 (3) payment of statute-barred debts;5 (4) debtor who becomes the creditor's executor, and does not pay the debt;6 (5) sale of an estate asset below its value;7 (6) distribution without making provision for future or contingent obligations;8 (7) breach of duty to get in money owing to the estate;9 and (8) conversion of the estate.10 Notes 1 Re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 177; (1898) 77 LT 508 per Vaughan Williams LJ .2 Re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 177; (1898) 77 LT 508 per Vaughan Williams LJ .3 Hayward v Kinsey (1701) 12 Mod Rep 568; 88 ER 1526.4 Hall v Hallett (1784) 1 Cox Eq Cas 134; 29 ER 1096 .5 Shallcross v Wright (1850) 12 Beav 558; 50 ER 1174 ; Midgley v Midgley [1893] 3 Ch 282; (1893) 69 LT 241 , CA; Re Rosenthal (dec'd); Schwarz v Bernstein [1972] 3 All ER 552; [1972] 1 WLR 1273.6 Taylor v Taylor (1870) LR 10 Eq 477; 23 LT 134; Re Bewley's Estate; Jefferys v Jefferys (1871) 24 LT 177; 19 WR 464 ; Bone v Cmr of Stamp Duties (NSW) (1974) 132 CLR 38; 3 ALR 561; 48 ALJR 310 . 7 Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177; [1963] ALR 487; (1962) 36 ALJR 167 .8 Commissioner of Stamps (WA) v West Australian Trustee, Executor and Agency Co Ltd (1926) 38 CLR 63; 32 ALR 238 per Higgins J.9 National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1; [1940] VLR 199; [1940] ALR 86 .10 Shepherd v Goodey (1866) 5 SCR (NSW) Eq 84. The paragraph below is current to 29 September 2010 [395-5825] Who may complain of devastavit Creditors or beneficiaries may complain of a devastavit.1 Where there is a will, the rights of beneficiaries are subject to the provisions of the will and the testator can modify the duties of personal representatives in respect of the beneficiaries but because the provisions of the will are irrelevant as far as the rights of creditors
are concerned, in deciding whether a particular action is a devastavit, the terms of the will must be considered in respect of beneficiaries but not in respect of creditors.2 Notes 1 National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1 at 17; [1940] VLR 199; [1940] ALR 86 per Latham CJ; Re Tankard; Tankard v Midland Bank Executor and Trustee Co Ltd [1942] Ch 69; [1941] 3 All ER 458 .2 Re Tankard; Tankard v Midland Bank Executor and Trustee Co Ltd [1942] Ch 69 at 74; [1941] 3 All ER 458 per Uthwatt J . The paragraph below is current to 29 September 2010 [395-5830] Preventing breach of trust The processes for seeking the advice and direction of the court are available to forestall a breach of trust by a personal representative.1 There are other possible methods of preventing a breach of trust.2 Notes 1 The administration procedure is suitable for resolving problems of the internal administration of the estate; it may be used where a hearing is likely to be required or there is controversy. See [395-5995]. The procedure under the State and Territory trustee legislation is suitable for use by trustees and personal representatives who require advice from the court on how to proceed with the administration, particularly where there is no controversy, and the trustee or personal representative is in a position to disclose all material facts to the court. See [395-6025].2 For further discussion see trusts. The paragraph below is current to 29 September 2010 [395-5835] Remedies of creditors when estate assets have been distributed The principles governing the remedies of creditors when estate assets have been distributed are as follows:1 (1) if a personal representative pays a legatee,2 the personal representative not having notice of the debt, the personal representative may call on the legatee to refund; (2) if the personal representative pays a legatee, the personal representative having notice of the debt, the personal representative may not recover from the legatee; (3) the creditor has no legal right to recover from the legatee, but the creditor has an equitable remedy, to sue the executor for payment of the debt; and (4) if the executor has wrongly parted with the assets, a plea of plene administravit3 will not protect him or her.4 If the court, upon executing judgment, finds that the personal representative no longer has the testators assets in his or her possession, it is assumed that the executor had those assets and wasted them between judgment and execution, and as such, the executor is personally liable as on a devastavit if sued on the original judgment.5 These principles hold even if the executor distributed the assets to himself or herself. Where the transfer is valid, he or she becomes the
owner of the land in law and it ceases to be part of the estate.6 Notes 1 The principles were set out in Brown v Holt [1961] VR 435 at 442-3 per Pape J.2 For the definition of legatee see Encyclopaedic Australian Legal Dictionary.3 For the definition of plene administravit see Encyclopaedic Australian Legal Dictionary.4 Brown v Holt [1961] VR 435 at 442 per Pape J.5 Brown v Holt [1961] VR 435 at 442 per Pape J (in the context of the Victorian procedure).6 Brown v Holt [1961] VR 435 at 443 per Pape J. The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-5840] Liability of personal representative for waste committed by original personal representative In some jurisdictions, where a personal representative by his or her own wrong wastes or converts to his or her own use any part of the estate of a deceased person and dies his or her personal representative shall, to the extent of the available assets of the defaulter, be liable and chargeable in respect of such waste or conversion in the same manner as the defaulter would have been if living.1 Notes 1 See, for example, (ACT) Administration and Probate Act 1929 s 74B (replacing (IMP) 30 Chas II c 7 (1678)) (NSW) Imperial Acts Application Act 1969 s 15 (replacing (IMP) 30 Chas II c 7 (1678)) (QLD) Succession Act 1981 s 52A (TAS) Administration and Probate Act 1935 s 30 (VIC) Administration and Probate Act 1958 s 33(2). The paragraph below is current to 29 September 2010 [395-5845] Liability of solicitor acting for personal representative Where a personal representative appoints a solicitor to act for him or her in the administration of an estate, the solicitor is liable for loss caused by his or her own wilful default, not only to the client of the solicitor, but also to the other persons injured by the default.1 Notes 1 Sorrell v Incorporated Law Institute of New South Wales (1960) SR (NSW) 95; (1959) 76 WN (NSW) 608 . The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-5850] Acquiescence in devastavit A person who, knowing the circumstances, joins with, concurs, or acquiesces in a breach of trust may not complain against the trustee or personal
representative of that breach of trust.1 Similarly, acquiescence is a defence to a claim for devastavit.2 Where a trustee commits a breach of trust at the instigation or request or with the written consent of the beneficiary, the court may impound the beneficiarys interest in the trust estate by way of indemnity to the trustee.3 The legislation enlarges the courts discretion to impound, but the court will have regard to the position of the parties.4 It seems clear that the legislation applies to a devastavit by a personal representative.5 Notes 1 Walker v Symonds (1818) 3 Swan 1 at 64; 36 ER 751 at 774 per Lord Eldon; Burrows v Walls (1855) 5 De GM & G 233; 43 ER 859 ; Swan v Perpetual Executors and Trustees Assn of Australia Ltd (1897) 23 VLR 293 at 309; 3 ALR 188 per Holroyd J ; Holder v Holder [1968] 1 Ch 353 at 393-4 per Harman LJ, at 397-9 per Danckwerts LJ, at 403-5 per Sachs LJ; [1968] 1 All ER 665; [1968] 2 WLR 237 , CA.2 Re Marsden; Bowden v Layland (1884) 26 Ch D 783 at 790 per Kay J.3 (ACT) Trustee Act 1925 s 86(1) (NT) Trustee Act 1893 s 50 (NSW) Trustee Act 1925 s 86 (QLD) Trusts Act 1973 s 77 (SA) Trustee Act 1936 s 57 (TAS) Trustee Act 1898 s 53 (VIC) Trustee Act 1958 s 68 (WA) Trustees Act 1962 s 76. 4 Swan v Perpetual Executors and Trustees Assn of Australia Ltd (1897) 23 VLR 293; 3 ALR 188 .5 The definition of trustee includes a personal representative: (ACT) Trustee Act 1925 s 2 , Dictionary (legal representative) (NT) Trustee Act 1893 s 82 (NSW) Trustee Act 1925 s 5 (legal representative) (QLD) Trusts Act 1973 s 5 (SA) Trustee Act 1936 s 4 (TAS) Trustee Act 1898 s 4 (VIC) Trustee Act 1958 s 3 (WA) Trustees Act 1962 s 6. The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-5855] Power of court to give relief Legislation provides that the court may relieve the trustee (including the personal representative)1 of liability where the trustee has acted honestly
and reasonably, and ought reasonably to be excused.2 To obtain relief it is not enough that the personal representative acted honestly and reasonably. It is also necessary that he or she ought fairly or reasonably to be excused.3 The relief is available to a professional trustee, however it is not applied unless a strong case is made out.4 Where an executor acts honestly, but without seeking court approval for his or her actions, relief may be granted to the executor.5 The court may, in a proper case, retrospectively sanction a breach of trust.6 Notes 1 (ACT) Trustee Act 1925 Dictionary (legal representative) (NT) Trustee Act 1893 s 82 (NSW) Trustee Act 1925 s 5 (legal representative) (QLD) Trusts Act 1973 s 5 (SA) Trustee Act 1936 s 4 (TAS) Trustee Act 1898 s 4 (VIC) Trustee Act 1958 s 3 (WA) Trustees Act 1962 s 6. 2 (ACT) Trustee Act 1925 s 85(2) (NT) Trustee Act 1893 s 49A(b) (NSW) Trustee Act 1925 s 85(2) (QLD) Trusts Act 1973 s 76 (SA) Trustee Act 1936 s 56(b) (TAS) Trustee Act 1898 s 50 (VIC) Trustee Act 1958 s 67 (WA) Trustees Act 1962 s 75. 3 Re Morish [1939] SASR 305 at 319-20 per Murray CJ. See also National Trustees Co of Australasia Ltd v General Finance Co of Australasia Ltd [1905] AC 373; (1905) 11 ALR (CN) 58; 92 LT 736 ; Dalrymple v Melville (1932) 32 SR (NSW) 596 at 605; 49 WN (NSW) 206 per Long Innes J (the personal representative must have acted reasonably as well as honestly); Pateman v Heyen (1993) 33 NSWLR 188 at 199; BC9303950 per Cohen J (personal representative must have acted reasonably and the fact that a personal representative is paid is a factor to take into account); Reid v Hubbard [2003] VSC 387 at [33]; BC200305989 per Nettle J.4 Partridge v Equity Trustees Executors and Agency Co Ltd (1947) 75 CLR 149 at 165; [1947] ALR 552; (1947) 21 ALJR 321 per Williams J; Elders Trustee & Executor Co Ltd v Higgins (1963) 113 CLR 426 at 452; [1964] ALR 408; (1963) 37 ALJR 132 per Dixon CJ, McTiernan and Windeyer JJ.5 Standard Insurance Co Ltd (in liq) v Sidey [1967] NZLR 86 at 92 per Woodhouse J (the approval would have been forthcoming if the executor had applied for it).6 Kerferd v Perpetual Executors and Trustees Assn of Australasia Ltd (1893) 19 VLR 700 ; ONeill v Public Trustee (1915) 34 NZLR 723 ; Re Grant; Trustees Executors & Agency Co Ltd v Grant [1933] VLR 263 . In Queensland, (QLD) Trusts Act 1973 s 6(2) expressly gives such a power to the court.
The paragraph below is current to 29 September 2010 [395-5860] Devastavit and other remedies An administration action and an action alleging a devastavit are not mutually exclusive. An administration action may or may not be an action of devastavit however an action of devastavit is usually, if not always, an administration action.1 Further, a breach of duty by an executor constituting a devastavit is a common basis for an administration action.2 An administration action and an action for account may accompany each other and be combined with an action for breach of trust.3 An action for account can be used to enforce liability on a personal representative in some situations in which a devastavit may be claimed.4 On taking accounts personal representatives may be, and in practice often are, charged with a devastavit arising on the accounts.5 Further, although the accounts do not disclose a wilful default (in the sense that the personal representative has lost assets received, or not received assets which he or she should have received, together with at least one instance of wilful default or neglect), other facts might disclose a devastavit and if so, the court should make the proper declaration against the representative.6 Notes 1 National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1 at 18; [1940] VLR 199; [1940] ALR 86 per Latham CJ. On the administration action see [395-5995]. Compare [395-6025].2 National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1 at 18; [1940] VLR 199; [1940] ALR 86 per Latham CJ.3 Re Morish [1939] SASR 305 at 320 per Murray CJ (there appears to be no reason why an action for account should not equally accompany an action of devastavit and an administration action) . On the action for account see [395-5920].4 Re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 176 per Vaughan Williams LJ, at 172 per Chitty LJ; (1898) 77 LT 508 .5 Re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 172; (1898) 77 LT 508 per Chitty LJ.6 Re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 171-2; (1898) 77 LT 508 per Chitty LJ. The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-5865] Limitation period The limitation period for a claim on a devastavit is that appropriate for tort1 six years from the date on which the cause of action first accrues, 2 except in the Northern Territory where it is three years.3 The limitation legislation provides that the limitation period in respect of a breach of trust is also six years from the date when the action first accrues,4 except in the Northern Territory where it is three years.5 Trust includes the duties incidental to the office of personal representative6 and thus breach of trust applies to a devastavit. The legislation provides a longer period where the action is against a person who was party to or privy to fraud or a fraudulent breach of trust (including a fraudulent devastavit).7 Notes 1 National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1 at 18; [1940] VLR 199; [1940] ALR 86 per Latham CJ. Compare (CLR) at 36 per Dixon J.2 (ACT) Limitation Act 1985 s 11 (NSW) Limitation Act 1969 s 14(1) (QLD) Limitation of Actions Act 1974 s 10(1)
(SA) Limitation of Actions Act 1936 s 35 (TAS) Limitation Act 1974 s 4(1) (VIC) Limitation of Actions Act 1958 s 5(1) (WA) Limitation Act 2005 s 13. 3 (NT) Limitation Act 1981 s 12(1).4 (ACT) Limitation Act 1985 s 11 (general provision) (NSW) Limitation Act 1969 s 48 (QLD) Limitation of Actions Act 1974 s 27(2) (SA) Limitation of Actions Act 1936 ss 31(c), 32, 35 (TAS) Limitation Act 1974 s 24(2) (VIC) Limitation of Actions Act 1958 s 21(2) (WA) Limitation Act 2005 s 13. 5 (NT) Limitation Act 1981 s 33.6 (ACT) Limitation Act 1985 s 2, Dictionary (definition of trust includes duties incident to office of personal representative) (NT) Limitation Act 1981 s 4(1) (definition of trust includes duties incident to office of personal representative) (NSW) Limitation Act 1969 s 11(1) (definition of trust includes duties incident to office of personal representative) (QLD) Limitation of Actions Act 1974 s 5(1) (incorporates definition of trust from (QLD) Trusts Act 1973 s 5(1) which defines trust to include duties incident to office of personal representative) (SA) Limitation of Actions Act 1936 s 3(1) (definition of person through whom another person claims) (TAS) Limitation Act 1974 s 2(1) (incorporates definition of trust from (TAS) Trustee Act 1898 s 4, which defines trust to include duties incident to office representative) (VIC) Limitation of Actions Act 1958 s 3(1) (incorporates definition of trust from (VIC) Trustee Act 1958 s 3(1) which defines trust to include duties incident to office of personal representative) (WA) Limitation Act 2005 s 3(1). See further Re Diplock; Diplock v Wintle [1948] Ch 465 at 507-516; [1948] 2 All ER 318 Lord Greene MR, Wrottesley and Evershed LJJ. 7 (ACT) Limitation Act 1985 s 27(1) (12 years) (NT) Limitation Act 1981 s 32(1) (12 years) (NSW) Limitation Act 1969 s 47(1) (12 years) (QLD) Limitation of Actions Act 1974 s 27(1) (no time limit given) (SA) Limitation of Actions Act 1936 ss 31, 32(1) (no time limit given) (TAS) Limitation Act 1974 s 24(1) (no time limit given) per
(VIC) Limitation of Actions Act 1958 s 21(1) (no time limit given).
Source
(13) DUTY TO ACCOUNT
The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-5920] Duty to account A personal representative is under a duty to keep proper books of account which contain a full and frank financial record of his or her administration of the estate.1 The general duties of the personal representative in relation to accounts are: (1) the essential duty to keep accounts so as to be able to deliver a proper account within a reasonable time showing what the personal representative has received and paid;2 (2) the duty to deliver accounts when the personal representatives expenses (of preparing a copy of the account) have been guaranteed;3 and
(3) the duty to vouch the accounts, which cannot arise until after the accounts have been delivered.4 Under its inherent power, the court may at any stage order the personal representative to provide an inventory and accounts.5 Legislation enacts detailed provision for the rendering of accounts6 as well as for the consequences of neglect to pass accounts.7 The duty to file accounts is modified in some jurisdictions for Public Trustees8 and trustee companies.9 The court has jurisdiction, under equitable principles, to order anyone with even a very small interest to be a party and to be a plaintiff in an action for account.10 It is contempt to fail to comply with an order to account.11 The usual form of account is the account in common form, in which the personal representative is required to account for the assets which have come into his or her possession (or those of his or her agent) and to account for his or her dealings with those assets.12 Notes 1 Freeman v Fairlie (1812) 3 Mer 29 at 41-4; 36 ER 12 at 16-17 per Lord Chancellor; Springett v Dashwood (1860) 2 Giff 521; 66 ER 218 ; Re Craig (1952) 52 SR (NSW) 265 at 267; 69 WN (NSW) 205 per Roper J; In the Estate of Orre (unreported, SC(NSW), Powell J, CA/10673 of 1990, 19 December 1991, BC9101324); In the Estate of Instone (unreported, SC(NSW), Powell J, CA/101312 of 1991, 23 August 1993, BC9303622); Re Whitehouse [1982] Qd R 196 at 200 per Macrossan J (thus trust accounts must be correct in detail and must not include non-trust items). See also the valuable insights into the origins of the equitable action for account provided by Stoljar S J, The Transformations of Account (1964) 80 Law Quarterly Review 203. Professor Stoljar shows that although the action for account originated in the common law, for practical purposes the jurisdiction for account is now equitable.2 Williams v Stephens (unreported, SC(NSW), Young J, No 3120 of 1985, 24 March 1986, BC8601164) at 4 (approving Re Watson (1904) 49 Sol Jo 54 , in which Kekewich J described the threefold duty of the executor in relation to accounts); Re Will of Skaftouros (decd); Skaftouros v Dimos [2002] VSC 198; BC200203873 at [14] per Mandie J (An executor, like a trustee, should provide a prompt and proper response to reasonable inquiries and requests for information by beneficiaries. Even onerous, unreasonable or antagonistic inquiries or requests [by beneficiaries] shouldreceive some appropriate response or acknowledgement).3 Williams v Stephens (unreported, SC(NSW), Young J, No 3120 of 1985, 24 March 1986, BC8601164) at 4. See also Re Craig (1952) 52 SR (NSW) 265 at 267; 69 WN (NSW) 205 per Roper J (the duty of a personal representative to render accounts when properly called upon and to be constantly ready to do so); Re Whitehouse [1982] Qd R 196 at 200 per Macrossan J (critical of trustees who had resisted the demands of beneficiaries for correct and proper accounts).4 Williams v Stephens (unreported, SC(NSW), Young J, No 3120 of 1985, 24 March 1986, BC8601164) at 4.5 Phillips v Bignell (1811) 1 Phillim 239; 161 ER 972; Acaster v Anderson (1848) 1 Rob Eccl 672; 163 ER 1174.6 (ACT) Administration and Probate Act 1929 ss 58, 101 (Public Trustee required to keep records); (ACT) Trustee Act 1925 s 102. See (ACT) Court Procedure Rules 2006 rr 2745-2760. (NT) Administration and Probate Act 1969 ss 89, 90, 91, 92; (NT) Supreme Court Rules O 52, rr 54.02 (NSW) Probate and Administration Act 1898 ss 85, 87; (NSW) Trustee Act 1925 s 102; (NSW) Uniform Civil Procedure Rules 2005 rr 46.1-9, 46.19-28 (equity division), r 54.3 (QLD) Succession Act 1981 s 52(1)(b); (QLD) Trusts Act 1973 s 8(1) (wide power to review acts or decisions of trustees (which includes personal representatives, and to make orders)); (QLD) Uniform Civil Procedure Rules 1999 Ch 15 Pt 10
(SA) Administration and Probate Act 1919 ss 56, 56A, 58, 121A; (SA) Trustee Act 1936 ss 84A84F; (SA) Supreme Court Civil Rules 2006 r 206 (TAS) Trustee Act 1898 s 28; (TAS) Administration and Probate Act 1935 ss 26, 56, 64; (TAS) Supreme Court Rules 2000 Pt 24 (VIC) Administration and Probate Act 1958 s 28; (VIC) Supreme Court (General Civil Procedure) Rules O 52, rr 54.02, 54.06 (WA) Administration Act 1903 ss 43, 44; (WA) Rules of the Supreme Court O 45. 7 (ACT) Administration and Probate Act 1929 ss 58, 61 (NT) Administration and Probate Act 1969 s 91; see also (NT) Supreme Court Rules r 88.85 (NSW) Wills, Probate and Administration Act 1898 s 87 (QLD) Succession Act 1981 s 52(2); (QLD) Uniform Civil Procedure Rules 1999 r 645(3) (SA) Administration and Probate Act 1919 s 58 (TAS) Trustee Act 1898 s 28(2); (TAS) Administration and Probate Act 1935 s 64; (TAS) Supreme Court Rules 2000 r 600 (WA) Administration Act 1903 s 44. 8 See, for example: (ACT) Administration and Probate Act 1929 s 101 (NT) Public Trustee Act 1979 s 19 (Auditor-General to inspect and audit the accounts of the Public Trustee at least once a year) (NSW) NSW Trustee and Guardian Act 2009 s 32 (QLD) Public Trustee Act 1978 s 24 (Minister has access to the Public Trustees books and accounts) (SA) Public Trustee Act 1995 s 26 (Public Trustee must keep accounts which the Auditor-General may audit at any time, and must audit each year) (WA) Public Trustee Act 1941 s 47 (accounts to be kept and inspection/copying of accounts by interested persons allowed). 9 (ACT) Trustee Companies Act 1947 s 19 (trustee company subject to the same duties as an individual personal representative) (NT) Companies (Trustees and Personal Representatives) Act 1981 s 22 (trustee company subject to the same duties as a natural person) (NSW) Trustee Companies Act 1964 s 28 (SA) Trustee Companies Act 1988 ss 4(1) (trustee company has the same powers as a natural person), 22 (trustee company must render accounts when application is made to court for them) (TAS) Trustee Companies Act 1953 s 20 (trustee company must render accounts when application is made to court for them) (VIC) Trustee Companies Act 1984 s 9 (trustee company is subject to the same duties as individual personal representative)
(WA) Trustee Companies Act 1987 ss 5, 9 (trustee company to act as personal representative with the same duties), 25 (trustee company must render accounts when application is made to court for them), 26 (court may order examination of books), 28 (Treasurer may obtain order for account). 10 Smith v Farr (1838) 3 Y & C Ex 328 at 339-40; 160 ER 728 at 732 per Baron LC.11 Phelan v Booth (1941) 43 WALR 60 . See also Patfield F, The Modern Remedy of Account (1987) 11 Adelaide Law Review 1 (the equitable remedy of account of profits).12 See, for example, Re Fryer; Martindale v Picquot (1857) 3 K & J 317; 69 ER 1129; Re Tebbs (decd); Redfern v Tebbs [1976] 2 All ER 858; [1976] 1 WLR 924 ; Re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 1756; (1898) 77 LT 508 per Vaughan Williams LJ. The paragraph below is current to 29 September 2010 [395-5925] Account on the basis of wilful default Exceptionally, the court may order that the personal representative account on the basis of wilful default. The order to account on the basis of wilful default binds the accounting party to account not only for what he or she has actually received but also for what he or she would have received but for his or her neglect or wilful default.1 The court may grant an order in relation to the whole estate or it may grant the order in relation to part of the estate and order an account in common form in relation to the rest of the estate.2 Where the account on the basis of wilful default is in relation to the whole estate, the order opens up an onerous and wide ranging inquiry3 entitling the plaintiff to a roving commission.4 An order to account on the basis of wilful default in relation to the whole estate is rare.5 An account on the basis of wilful default may be ordered when one instance of wilful default has been proved, however, the court has a discretion whether or not to order such an account.6 An account on the basis of wilful default is not ordered unless at least one instance of neglect or wilful default is proved and breach of trust does not necessarily amount to neglect or wilful default.7 An example of wilful default in the sense of a passive breach of trust is an omission by a trustee to do something which, as a prudent trustee, he ought to have done entitling the court to order an account on the basis of wilful default.8 Loss must be shown, either of assets which have been received or of assets which should have been received but were not.9 The plaintiff must prove that through the defendants neglect or wilful default a debt or asset has not been received which might have been received.10 It is not enough to allege generally that there are debts and inquire as to whether the executor has called them in. The plaintiff must fix on a specific debt or debts as the basis of a charge of wilful default.11 On the other hand, it seems that on principle, account on the basis of wilful default cannot be ordered on the basis merely of one or more active breaches of trust.12 Wrongful or misguided persistence of the trustee is sufficient to ground an order to account on the basis of wilful default.13 Conscious wrongdoing is not required for wilful default to be present.14 The words wilful default define a criterion to guide the court, referring to the kind of character which attaches to the trustee or personal representative.15 Continuing uncooperativeness in the trustees has prompted courts to order accounts on the basis of wilful default.16 Usually more than one breach will be required.17 An order for account on the basis of wilful default may be obtained by a beneficiary or a creditor against an executor who has proved the will but not against an executor who has not proved the will. For this reason an executor who has intermeddled is not allowed to renounce unless the court is satisfied that creditors and beneficiaries will not be prejudiced.18 Notes 1 Re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 175; (1898) 77 LT 508 per Vaughan Williams LJ; Re Wood (decd); Ebert v Union Trustee Co of Australia Ltd [1961] Qd R 375 at 378
per Mansfield CJ; Re Tebbs (decd); Redfern v Tebbs [1976] 2 All ER 858; [1976] 1 WLR 924 ; McLauchlan v Prince [2001] WASC 43; BC200100391 . See also Bartlett v Barclays Bank Trust Co Ltd (No 2) [1980] Ch 515 at 546; [1980] 2 All ER 92; [1980] 2 WLR 430 per Brightman LJ; Bauer v Hussey [2010] QSC 269; BC201005327 at [37][39] per Daubney J .2 Re Tebbs (decd); Redfern v Tebbs [1976] 2 All ER 858; [1976] 1 WLR 924 .3 Re Stevens; Cooke v Stevens [1897] 1 Ch 422 at 432-3; (1897) 76 LT 18 per North J; Re Tebbs (decd); Redfern v Tebbs [1976] 2 All ER 858; [1976] 1 WLR 924 ; Bartlett v Barclays Bank Trust Co Ltd (No 2) [1980] Ch 515 at 546; [1980] 2 All ER 92; [1980] 2 WLR 430 per Brightman LJ.4 Re Tebbs (decd); Redfern v Tebbs [1976] 2 All ER 858 at 863; [1976] 1 WLR 924 per Slade J; Bartlett v Barclays Bank Trust Co Ltd (No 2) [1980] Ch 515 at 546; [1980] 2 All ER 92; [1980] 2 WLR 430 per Brightman LJ.5 Re Wood (decd); Ebert v Union Trustee Co of Australia Ltd [1961] Qd R 375 at 379 per Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ (form requested described by the High Court as of a somewhat old fashioned sort).6 Re Tebbs (decd); Redfern v Tebbs [1976] 2 All ER 858; [1976] 1 WLR 924 .7 Re Wood (decd); Ebert v Union Trustee Co of Australia Ltd [1961] Qd R 375 .8 Bartlett v Barclays Bank Trust Co Ltd (No 2) [1980] Ch 515 at 546; [1980] 2 All ER 92; [1980] 2 WLR 430 per Brightman LJ.9 Re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 175; (1898) 77 LT 508 per Vaughan Williams LJ.10 Re Wood (decd); Ebert v Union Trustee Co of Australia Ltd [1961] Qd R 375 ; Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146 (failure in record keeping and other breaches of trust did not amount to wilful default as it did not follow that all assets of the trust had not been received and properly dealt with).11 Re Wood (decd); Ebert v Union Trustee Co of Australia Ltd [1961] Qd R 375 at 377 per Mansfield CJ.12 Re Wrightson; Wrightson v Cooke [1908] 1 Ch 789 at 799-800; [1908-10] All ER Rep Ext 1399; (1908) 98 LT 799 per Warrington J ; Bartlett v Barclays Bank Trust Co Ltd (No 2) [1980] Ch 515 at 546; [1980] 2 All ER 92; [1980] 2 WLR 430 per Brightman J.13 Re Tebbs (decd); Redfern v Tebbs [1976] 2 All ER 858; [1976] 1 WLR 924 .14 Bartlett v Barclays Bank Trust Co Ltd (No 2) [1980] Ch 515 at 546; [1980] 2 All ER 92; [1980] 2 WLR 430 per Brightman LJ (this was in the context of account by one of several paid trustees on the basis of wilful default for breach of trust. Brightman LJ seems to have discounted a suggestion that the position might be different for executors, and it appears that there is no real difference between an executor and a trustee in regard to the criteria for an account on the basis of wilful default).15 Re Wrightson; Wrightson v Cooke [1908] 1 Ch 789 at 799; [1908-10] All ER Rep Ext 1399; (1908) 98 LT 799 per Warrington J. In Re Tebbs (decd); Redfern v Tebbs [1976] 2 All ER 858 at 863; [1976] 1 WLR 924 per Slade J (in a context where one or more breaches of trust had been proved or admitted) it was held that the test should be whether the past conduct of the trustees is such as to give rise to a reasonable prima facie inference that other breaches of trust not yet known to the plaintiff or the court have occurred.16 Re Morish [1939] SASR 305 ; Perpetual Executors, Trustees and Agency Co (WA) Ltd v West Australian Trustee, Executor and Agency Co Ltd (1942) 44 WALR 29 at 48 per Wolff J (see order).17 Re Stevens; Cooke v Stevens [1897] 1 Ch 422 at 432; (1897) 76 LT 18 per North J. Compare Re Tebbs (decd); Redfern v Tebbs [1976] 2 All ER 858; [1976] 1 WLR 924 .18 In the Will of Lyndon (decd) [1960] VR 112 at 115 per Pape J. See also Re Orloff (decd); Terracall v Churkovich [2010] VSC 48; BC201000774 at [12][21] per Robson J . The paragraph below is current to 29 September 2010 [395-5930] Effect of admitting wilful default The fact that the trustee or personal representative has admitted to one or more acts of wilful default does not mean that the court is precluded from ordering an account on the basis of wilful default.1 Where wilful default is alleged and the court is aware that further instances of breach of trust may come to light in due course but nevertheless the court is not at present prepared to order account on the basis of wilful default the court may order that a common account be taken and leave open the claim for account on the basis of wilful default so that the court, on further evidence, may direct that accounts on the basis of wilful default be taken.2 Notes 1 Re Tebbs (decd); Redfern v Tebbs [1976] 2 All ER 858 at 863; [1976] 1 WLR 924 per Slade J
1 Re Tebbs (decd); Redfern v Tebbs [1976] 2 All ER 858 at 863; [1976] 1 WLR 924 per Slade J ; Bartlett v Barclays Bank Trust Co Ltd (No 2) [1980] Ch 515 at 546; [1980] 2 All ER 92; [1980] 2 WLR 430 per Brightman J .2 Re Symons; Luke v Tomkin (1882) 21 Ch D 757; 46 LT 684 ; Re Wood (decd); Ebert v Union Trustee Co of Australia Ltd [1961] Qd R 375 ; Re Tebbs (decd); Redfern v Tebbs [1976] 2 All ER 858 at 864; [1976] 1 WLR 924 per Slade J. The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-5935] Action for account and other relief The action for account is not necessarily linked with an administration action although administration proceedings and an application for the taking of accounts may be combined.1 The action for account may also be combined with a suit for breach of trust.2 Notes 1 Re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 172 per Chitty LJ, at 176 per Vaughan Williams LJ; (1898) 77 LT 508 ; Re Morish [1939] SASR 305 at 320 per Murray CJ. See (ACT) Court Procedure Rules 2006 r 1600 Orders (NT) Supreme Court Rules rr 54.02(1), 54.02(2)(b)(i) (NSW) Uniform Civil Procedure Rules 2005 r 54.3 (SA) Supreme Court Civil Rules 2006 r 206 (TAS) Supreme Court Rules 2000 r 604 (VIC) Supreme Court (General Civil Procedure) Rules r 54.02 (WA) Rules of the Supreme Court 1971 O 58 Div 2. The relief without administration provisions which used to appear in the former (QLD) Rules of the Supreme Court O 4 (repealed) are not carried over to the new (QLD) Uniform Civil Procedure Rules 1999. However, the court retains an inherent jurisdiction and also has very broad, unrestricted powers to give appropriate remedies in succession matters under the (QLD) Succession Act 1981 s 6. Therefore, it seems that remedies that were available under the old rules are still available see further [395-5995]. As to the rules relating to accounts generally see (QLD) Uniform Civil Procedure Rules 1999 Ch 15 Pt 10. 2 Re Morish [1939] SASR 305 at 320 per Murray CJ. The action for devastavit and the administration action can be combined: National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1 at 18; [1940] VLR 199; [1940] ALR 86 per Latham CJ. See [395-5860]. The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-5940] Costs If the personal representative is contemplating litigation in relation to the estate and he or she is not certain that costs are to be ordered out of the estate, the advice and
direction of the court may or should be sought.1 Where the executors are under a duty to litigate, the court may give an indemnity as to costs of litigation, whether or not the litigation by the executors is ultimately successful.2 Where legislation protects the applicant respecting costs3 it is wasteful and unnecessary to seek this type of order.4 Where the executors are not sure whether to litigate in relation to the estate or not, they should seek the advice of the court under the State and Territory trustee legislation.5 Notes 1 Re Beddoe; Downes v Cottam [1893] 1 Ch 547; (1892) 62 LJ Ch 233; 68 LT 595 . The application is referred to as a Re Beddoe application: Evans v Evans [1985] 3 All ER 289 sub nom Re Evans (decd) [1986] 1 WLR 101 . The order entitles the personal representative to be indemnified out of the estate against costs of and incidental to pursuing or defending the action. See also Re Atkinson (decd) [1971] VR 612 at 615 per Gillard J; Evans v Evans [1985] 3 All ER 289 sub nom Re Evans (decd) [1986] 1 WLR 101 ; Public Trustee v Carew-Reid (unreported, SC(WA), Anderson J, No 1483 of 1993, 13 August 1993, BC9301374) .2 Re Dallaway (decd) [1982] 3 All ER 118; [1982] 1 WLR 756 ; Metropolitan Local Aboriginal Land Council v Metropolitan Aboriginal Assn Inc [2003] NSWSC 104; BC200300572 . See also Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; 249 ALR 250; 82 ALJR 1425; [2008] HCA 42; BC200807738 .3 As to protection of the personal representative or trustee who approaches the court for advice or direction see (ACT) Court Procedure Rules 2006 r 1732 (NT) Supreme Court Rules rr 63.01 (definition of trustee), 63.23 (NSW) Uniform Civil Procedure Rules 2005 r 42.25 (QLD) Uniform Civil Procedure Rules 1999 r 704 (SA) Supreme Court Civil Rules r 267 (does not specifically refer to personal representative or trustee) (TAS) Supreme Court Rules 2000 r 57 (VIC) Supreme Court (General Civil Procedure) Rules r 63.26 (WA) Rules of the Supreme Court O 66 r 9(2). 4 Re Kirkegaard (decd) [1950] St R Qd 144 at 146 per Philip J.5 See [395-6025].
Source
(14) PROCEEDINGS RELATING TO THE INTERNAL ADMINISTRATION OF THE ESTATE
(A) Administration Proceedings The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-5995] General The duty of the personal representative is to administer the estate according to law and if the personal representative cannot or will not do so, or does not do so properly, or is unsure of how to proceed and wants the guidance or direction of the court, administration proceedings are available to beneficiaries, creditors or the personal representative. The court has an inherent equitable jurisdiction to oversee and even undertake the administration of the estate.1 The right of interested persons to approach the court by way of administration proceedings is legislatively recognised.2 In addition, trustees and personal representatives3 may approach the court for advice or direction in trustee legislation.4 In some jurisdictions, a personal representative who acts in accordance with an administration order is in principle protected. For example, an order to distribute (pursuant to administration proceedings) will, in principle, absolve a personal representative from liability for unpaid debts at the time of distribution.5 Trustees are entitled to take the opinion of the court but if they do and then appeal unsuccessfully they may in certain circumstances be ordered to pay costs.6 It is a contempt not to comply with an administration order.7 Notes 1 Re Morish [1939] SASR 305 at 320 per Murray CJ; National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1 at 18; [1940] VLR 199; [1940] ALR 86 per Latham CJ (who noted that an action for devastavit is often the starting point for a request for administration); Dawson v Perpetual Trustee Co Ltd (1953) 89 CLR 138 ; Re Bradley (decd); Bradley v Barclays Bank Ltd [1956] Ch 615; [1956] 3 All ER 113 (the administration action may be commenced by a personal representative as well as by a beneficiary or creditor); Re Wood (decd); Ebert v Union Trustee Co of Australia Ltd [1961] Qd R 375 ; Re Atkinson (decd) [1971] VR 612 at 615 per Gillard J . See also Langdell C C, A Brief Survey of Equity Jurisdiction, 2nd ed, Cambridge-Harvard Law Review Association, 1908, p 154; Holdsworth, W S, A History of English Law, 2nd ed, Methuen, London, 1937.2 (ACT) Administration and Probate Act 1929 ss 51(real estate), 97, 97A, 98 (relating specifically to the Public Trustee)
(NT) Administration and Probate Act 1969 s 82 (real estate); (NT) Supreme Court Rules O 54 (NSW) Wills, Probate and Administration Act 1898 s 57 (real estate). See (NSW) Uniform Civil Procedure Rules 2005 Pt 54. (QLD) Succession Act 1981 s 6 (SA) Administration and Probate Act 1919 s 69; (SA) Trustee Act 1936 ss 90, 91. See (SA) Supreme Court Civil Rules 2006 r 206. (TAS) Administration and Probate Act 1935 s 64; (TAS) Supreme Court Rules 2000 rr 604, 605 (VIC) Supreme Court (General Civil Procedure) Rules O 54 (WA) Administration Act 1903 s 45; (WA) Rules of the Supreme Court O 58 rr 2-8. See [395-6010] (administration proceedings limited to particular matters). 3 (ACT) Trustee Act 1925 Dictionary (includes legal representative and trustee) (NT) Trustee Act 1893 s 82 (includes representative and trustee) (NSW) Trustee Act 1925 s 5 (includes legal representative (means executor or administrator), NSW Trustee and a trustee company) (QLD) Trusts Act 1973 s 5 (includes personal representative and trustee) (SA) Trustee Act 1936 s 4 (includes representative) (TAS) Trustee Act 1898 s 4 (includes representative and trustee) (VIC) Trustee Act 1958 s 3 (includes personal representative) (WA) Trustees Act 1962 s 6 (includes personal representative). 4 See [395-6025]-[395-6035].5 David v Frowd (1833) 1 My & K 200 at 209; 39 ER 657 at 660 per Leach MR ; Deputy Commissioner of Taxation (NSW) v Brown (1958) 100 CLR 32 at 53; [1958] ALR 285; (1958) 31 ALJR 939 per Kitto J (dissenting). See, for example: (ACT) Trustee Act 1925 s 63 (NSW) Trustee Act 1925 s 63 (QLD) Trusts Act 1973s 97 (SA) Administration and Probate Act 1919 s 69 (WA) Trustees Act 1962 s 95. See also (SA) Administration and Probate Act 1919 s 69. 6 Re Bubnich; Marian v Bubnich [1965] WAR 138 at 140 Phelan v Booth (1941) 43 WALR 60 . The paragraph below is current to 29 September 2010 [395-6000] Purpose of administration suit Fundamentally, the purpose of the administration per Wolff CJ, at 142-3 per Negus J.7
suit is to give assistance and protection to the personal representatives, as well as protecting those interested in the estate as creditors or beneficiaries.1 Personal representatives,2 beneficiaries3 and creditors4 are entitled to initiate administration proceedings. Administration proceedings are useful for the personal representative as self protection in an action when there is no question of any fault on the part of the personal representative.5 Administration proceedings are designed to deal with problems arising within the administration of the estate and are not to be used in actions between the estate and persons (other than creditors) claiming adversely to the estate.6 An administration suit (administration proceedings) may be a general administration suit,7 in which the court is asked to take over the general administration of the estate or it may be limited to particular matters.8 Notes 1 David v Frowd (1833) 1 My & K 200 at 208; 39 ER 657 at 660 per Leach MR; Gonzales v Claridades (2003) 58 NSWLR 211; [2003] NSWCA 227; BC200304834 .2 See, for example, Dawson v Perpetual Trustee Co Ltd (1953) 89 CLR 138 ; Re Royle; Royle v Hayes (1889) 43 Ch D 18; 61 LT 542 ; Re Burton [1901] WN 202 .3 See, for example, Bond v Graham (1842) 1 Hare 482; 66 ER 1121; Evans v Evans (1910) 10 SR (NSW) 594; 27 WN (NSW) 1636 .4 See, for example, Re Powers; Lindsell v Phillips (1885) 30 Ch D 291; [1881-85] All ER Rep 971 . As to the origin of this entitlement see Langdell C C, A Brief Survey of Equity Jurisdiction, 2nd ed, Cambridge-Harvard Law Review Association, 1908. 5 See, for example, Dawson v Perpetual Trustee Co Ltd (1953) 89 CLR 138 ; Re Bubnich; Marian v Bubnich [1965] WAR 138 .6 Evans v Evans (1910) 10 SR (NSW) 594; 27 WN (NSW) 1636 ; Hudson v Gray (1927) 39 CLR 473 at 502; 1 ALJR 126 per Higgins J.7 See [395-6005].8 See [395-6010] (administration proceedings limited to particular matters). The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6005] General administration suit An order for general administration is granted when the court is satisfied that the order is necessary to resolve the problems between the parties.1 It appears that a general administration order is made only in cases where: (1) the trustees cannot work together; (2) the circumstances of the case give rise to ever recurring difficulties requiring frequent direction of the court;2 or (3) a prima facie doubt is shown on the bona fides or the discretion of one or more of the trustees.3 An order for general administration may be granted at the instance of a co-personal representative where the actions of another co-personal representative are prejudicial to the administration.4 Even when foreign assets are involved, the physical presence of the executors in the jurisdiction gives the court jurisdiction to order an administration, since the court has available to it remedies in personam to protect the trust property if necessary.5 An order for general
administration brings to a halt the whole administration of the trust until the court has given it leave to proceed.6 Nevertheless, a suit for the general administration of the estate has been described by the High Court of Australia as somewhat old-fashioned.7 The reason why it seems so is that it is seldom necessary, now that by using the administration proceedings limited to particular matters the advice and direction of the court can be obtained without the inconvenience of a general administration order.8 A general administration order and an order that the trustees account on the basis of breach of trust, that is, on the basis of wilful default, may be combined.9 Notes 1 (NT) Supreme Court Rules r 54.06(1) (NSW) Uniform Civil Procedure Rules rr 54.6, 54.7 (QLD) Succession Act 1981 s 6 (SA) Supreme Court Civil Rules 2006 r 206 (TAS) Supreme Court Rules 2000 r 606. Compare (TAS) Administration and Probate Act 1935 s 64. (VIC) Supreme Court (General Civil Procedure) Rules r 54.06(1) (WA) Rules of the Supreme Court O 58 r 5. See also(ACT) Court Procedure Rules 2006 r 3115. See also Re Blake; Jones v Blake (1885) 29 Ch D 913; 53 LT 302 ; Heydon v Gell (1900) 21 LR (NSW) Eq 265; 17 WN (NSW) 181 ; Hyman v Permanent Trustee Co of New South Wales Ltd (1914) 14 SR (NSW) 348; 31 WN (NSW) 126 ; In the Estate of Just (decd) (No 1) (1973) 7 SASR 508 at 514 per Jacobs J; McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 at 634-8; 9 ACLR 926 per Young J (contains a history of the administration suit, as does Murdocca v Murdocca (No 2) [2002] NSWSC 505; BC200203390 ). 2 See, for example, Hyman v Permanent Trustee Co of New South Wales Ltd (1914) 14 SR (NSW) 348; 31 WN (NSW) 126 .3 McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 at 635; 9 ACLR 926 per Young J. See also Re Flavelle (decd); Moore v Flavelle [1969] 1 NSWR 361 (many breaches of trust over a long period); Hyman v Permanent Trustee Co of New South Wales Ltd (1914) 14 SR (NSW) 348; 31 WN (NSW) 126 (persistent difficulties with valuation for partition at a time of outbreak of war).4 Dawson v Perpetual Trustee Co Ltd (1953) 89 CLR 138 (institutional representative sought and obtained a general administration order against a co-representative who was committing breaches of trust. The Master was authorised to inquire whether or not steps should be taken to get in assets in foreign jurisdictions where the corepresentative (who was bankrupt) was resisting bringing in those assets).5 Dawson v Perpetual Trustee Co Ltd (1953) 89 CLR 138 .6 McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 at 633; 9 ACLR 926 per Young J.7 Re Wood (decd); Ebert v Union Trustee Co of Australia Ltd [1961] Qd R 375 at 379 per Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ .8 For an instructive survey of the history and function of the general administration suit, and the developments that have made it rare, see Barton G P, The ascertainment of missing beneficiaries: the New Zealand experience (1960-1962) 5 University of Western Australia Law Review 257. See also David v Frowd (1833) 1 My & K 200; 39 ER 657 , where the general administration is described.9 Re Morish [1939] SASR 305 (the order was made when the beneficiaries proved substantial and persistent breaches of trust, the trustees had carried on a business, clearly in breach of trust, during the depression and were losing money and being evasive); Re Flavelle (decd); Moore v Flavelle [1969] 1 NSWR 361 (many breaches of trust over a long period).
The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6010] Administration proceedings limited to particular matters Previously the court of chancery could regulate the administration of estates only by making a general administration order under which the court took over the administration of the whole estate. This involved unnecessary expense when an answer was sought to questions which could be given simple answers without the need for a general administration order by the court.1 During the nineteenth century a practice was developed for dealing with such problems. The plaintiff would start an action for general administration, raise the specific questions or issues on the pleadings and when the inquiry or direction sought had been obtained the plaintiff would stay further proceedings in the suit.2 The (UK) Chancery Procedure Act 1852 gave the modern procedure a sound statutory foundation3 which has become the basis of the modern procedure, under which it is possible to seek relief in relation to the particular matters of concern to the parties without requesting that the court take over the administration of all or part of the estate.4 The general administration suit remains available.5 The court, it seems, encourages application to it for advice or direction6 and does not readily deprive those who do so of their costs. 7 Notes 1 Re Wilson; Alexander v Calder (1885) 28 Ch D 457 at 460; 54 LJ Ch 487 per Pearson J; Re Blake; Jones v Blake (1885) 29 Ch D 913; 53 LT 302 ; Re Davies; Davies v Davies (1888) 38 Ch D 210; 58 LT 312 ; Hyman v Permanent Trustee Co of New South Wales Ltd (1914) 14 SR (NSW) 348; 31 WN (NSW) 126 ; McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 at 633-5; 9 ACLR 926 per Young J; Murdocca v Murdocca (No 2) [2002] NSWSC 505; BC200203390 . The old practice was a scandal (see Re Wilson; Alexander v Calder (1885) 28 Ch D 457; 54 LJ Ch 487 ; Re Davies; Davies v Davies (1888) 38 Ch D 210; 58 LT 312 ) and the delays and abuses which the system caused formed the legal basis of the fictitious case of Jarndyce v Jarndyce in Charles Dickens novel Bleak House. See MacFarlane v Brown [1919] NZLR 218 at 234-5 per Stout CJ; McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 at 634; 9 ACLR 926 per Young J; Irvine v Public Trustee [1989] 1 NZLR 67 at 71 (in each of which Jarndyce v Jarndyce is cited).2 Re Medland; Eland v Medland (1889) 41 Ch D 476 at 492; 60 LT 851 per Fry LJ.3 Re Medland; Eland v Medland (1889) 41 Ch D 476 at 491; 60 LT 851 per Fry LJ . See also Holdsworth W S, A History of English Law, 7th ed, Methuen, London, 1956, Vol 15, pp 118-119.4 (ACT) Administration and Probate Act 1929 ss 51 (real estate), 97, 97A, 98 (relating specifically to the Public Trustee); (ACT) Court Procedure Rules 2006 r 1600 (NSW) Uniform Civil Procedure Rules 2005 rr 54.3, 54.6 (NT) Administration and Probate Act 1969 s 82 (real estate); (NT) Supreme Court Rules O 54 (QLD) Succession Act 1981 s 6 (SA) Administration and Probate Act 1919 s 69; (SA) Supreme Court Civil Rules 2006 r 206 (TAS) Administration and Probate Act 1935 s 64; (TAS) Supreme Court Rules 2000 r 604 (VIC) Supreme Court (General Civil Procedure) RulesO 54. See also Re Atkinson (decd) [1971] VR 612 at 615 per Gillard J. (WA) Administration Act 1903 s 45; (WA) Rules of the Supreme Court O 58 r 2. 5 As to the general administration suit see [395-6005].6 Re Partington; Partington v Allen (1887)
57 LT 654 at 660; 3 TLR 828 per Stirling J.7 Re Buckton; Buckton v Buckton [1907] 2 Ch 406 at 414-5; (1907) 97 LT 332 per Kekewich J; Re Kirkegaard (decd) [1950] St R Qd 144 . Compare Pohlner v Pfeiffer (1964) 112 CLR 52 at 67 per Taylor J, at 71 per Menzies J, at 84 per Windeyer J; 37 ALJR 461 sub nom Pohlner v Elders Trustee & Executors [1964] ALR 1100 ; In the matter of Australian Investment Corp Ltd (in liq); Wallace-Smith v Boland (unreported, FCA, Northrop J, 8 August 1996, BC9603549); Re Mulcahy (decd) [1969] VR 545 at 555 per Pape J (as a general rule if the proceedings are rendered necessary by the nature of the testators will, the costs of all parties are thrown upon the general estate). If the proceedings are really adversary litigation between beneficiaries, the unsuccessful party may be ordered to bear the costs: Re Halston; Ewen v Halston [1912] 1 Ch 435; [1911-13] All ER Rep 667 ; Re Cunningham; Sproule v Quested (1914) 31 WN (NSW) 44 ; OBrien v Ritchie (1931) 48 WN (NSW) 85 ; Elders Trustee & Executor Co Ltd v Eastoe [1963] WAR 36 . See also: (NT) Supreme Court Rules rr 63.01(definition of trustee), 63.23 (SA) Supreme Court Rules R 101.01(2) (TAS) Supreme Court Rules 2000 r 57 (VIC) Supreme Court (General Civil Procedure) Rules r 63.26 (WA) Rules of the Supreme Court O 66 r 9(2). The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6015] Matters for which administration proceedings limited to particular questions may be used The court may, without having to proceed by way of a request for a full administration order, properly be asked for advice and direction, and to settle a wide variety of questions, or to make a variety of orders, for example, on matters relating to the administration of the estate and questions between executors and legatees, between beneficiaries themselves, and between beneficiaries or some of them, and the representative of the estate.1 The legislative provisions are couched in very general terms which give the courts powers to consider and resolve a very wide range of matters.2 Examples of matters which are appropriate for consideration in an administration action limited to the particular question or questions are:3 (1) whether a legacy had failed; (2) whether or not a will should be construed as making a gift to survivors as a class; (3) whether the proceeds of a sale of an estate asset should be treated as income or capital; or (4)
any isolated question of a kind the decision of which would set at rest the differences between the parties taking under the will. Further, the court may give directions where a beneficiary complains that in a particular matter the personal representative is not behaving even-handedly.4 The court may authorise early distribution of the assets on the basis that the life tenant will have no further children.5 The procedure may be used to answer hypothetical questions.6 Thus, the court is prepared to answer a question whether a proposed action is an improper exercise of a trustees power however, the court does not answer questions as to whether it is a wise or unwise exercise of the power.7 The court may consider and answer a question of how executors who are shareholders in a company and who are in a situation of conflict of interest should vote at a shareholders meeting.8 Administration proceedings may be used to get the court to construe a will and questions of construction may be answered by the court in the course of administration proceedings.9 The use of administration proceedings is proper where the construction of the will involves matters of basic controversy between the parties or a matter of breach of trust is involved.10 The court may order the executor to carry out the trusts of the will11 and may order that accounts be taken.12 The commencement of an administration suit by a creditor does not suspend or control the personal representatives power to dispose of and make good title to estate assets, the personal representatives power continues until judgment is given.13 Notes 1 Evans v Evans (1910) 10 SR (NSW) 594 at 597; 27 WN (NSW) 163b per Simpson CJ. See also, for example, Re Jolley (1984) 36 SASR 204 .2 (ACT) Administration and Probate Act 1929 ss 51 (real estate), 97, 97A, 98 (relating specifically to the Public Trustee); (ACT) Court Procedure Rules (2006) r 1600 (NT) Administration and Probate Act 1969 s 82 (real estate); (NT) Supreme Court Rules rr 54.0154.06 (NSW) Uniform Civil Procedure Rules 2005 r 54.3, r 54.6 (SA) Administration and Probate Act 1919 s 69; (SA) Supreme Court Civil Rules 2006 r 206 (TAS) Administration and Probate Act 1935 s 64; (TAS) Supreme Court Rules 2000 r 604 (VIC) Supreme Court (General Civil Procedure) RulesO 54.02. See also Re Atkinson (decd) [1971] VR 612 at 615 per Gillard J . (WA) Administration Act 1903 s 45; (WA) Rules of the Supreme Court O 58 r 2. As to Queensland see (QLD) Succession Act 1981 s 6, which, appears to give the court all necessary and convenient powers in this regard. 3 These examples were given in Re Wilson; Alexander v Calder (1885) 28 Ch D 457 at 461; 54 LJ Ch 487 per Pearson J.4 See, for example, Hyman v Permanent Trustee Co of New South Wales Ltd (1914) 14 SR (NSW) 348; 31 WN (NSW) 126 .5 Bullas v Public Trustee [1981] 1 NSWLR 641 per Kearney J.6 Re Syme (decd) [1980] VR 109 ; Re Hartigan [1989] 2 Qd R 401 ; Collins v Equity Trustees Executors & Agency Company Ltd [1997] 2 VR 166; BC9601882 .7 Re Green (decd) [1972] VR 848 . See also IOOF Australia Trustees Ltd and The Trustee Act 1936 (1999) 205 LSJS 98; [1999] SASC 461; BC9907227 ; McKinnon v Samuels [2000] VSC 393; BC200005745 .8 Re Zimpel (decd); Morrison v Perpetual
Executors Trustees and Agency Co [1963] WAR 171 .9 Re Kirkegaard (decd) [1950] St R Qd 144 .10 Anderson v Neale (1902) 2 SR (NSW) Eq 20; (1902) 19 WN (NSW) 32 (an administration suit limited to particular matters); Harrison v Mills [1976] 1 NSWLR 42 . See also Re Anderson (1953) 53 SR (NSW) 520; 70 WN (NSW) 153 ; Bullas v Public Trustee [1981] 1 NSWLR 641 per Kearney J.11 Phelan v Booth (1941) 43 WALR 60 .12 See [395-5920] (duty to account).13 Neeves v Burrage (1849) 14 QB 504; 117 ER 196 . The paragraph below is current to 29 September 2010 [395-6020] Administration suit and devastavit Where executors fail in their duty, causing loss to the estate, they commit a devastavit.1 Although the action based on devastavit is a common law action and the administration suit is an equitable proceeding, the two are not mutually exclusive, and indeed they may be combined. An administration action may or may not be an action of devastavit however, an action of devastavit is usually, if not always, an administration action.2 A breach of duty by an executor constituting a devastavit is a common basis for an administration action.3 Notes 1 Re Stevens; Cooke v Stevens [1898] 1 Ch 162 at 176-177; (1898) 77 LT 508 per Williams LJ. See [395-5795] on devastavit.2 National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1 at 18; [1940] VLR 199; [1940] ALR 86; (1940) 14 ALJR 40; BC4000001 per Latham CJ.3 National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1 at 18; [1940] VLR 199; [1940] ALR 86; (1940) 14 ALJR 40; BC4000001 per Latham CJ (provides an example of a situation where administration proceedings and action as on a devastavit would be combined. Because a personal representative who commits a devastavit is likely not to be administering the estate properly, it is convenient to combine the devastavit and administration actions). National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1 at 17-18; [1940] VLR 199; [1940] ALR 86; (1940) 14 ALJR 40; BC4000001 per Latham CJ; provides an example of a situation where administration proceedings and action as on a devastavit would be combined. See too [3955860]. The paragraph below is current to 29 September 2010 [395-6021] Costs of an administration suit Costs of an administration suit are testamentary expenses, incurred to enable the proper administration of the estate to take place, even if some of those costs are likely to be incurred by parties to the litigation other than the executor or administrator.1 Where the need to use the procedure arises from the testators use of unclear language, it is appropriate that the costs of all necessary parties to the application be treated as testamentary expenses and paid from the residue of the estate.2 The court retains an overall discretion as to who should bear the burden of costs.3 The court encourages application to it for advice or direction, and does not readily deprive those who do so of their costs.4 However where a beneficiary makes a claim adverse to other beneficiaries and uses the convenience of the administration procedure where the matter is really a contested suit, then the normal rule should be applied the unsuccessful party should normally bear the costs.5 Trustees (and personal representatives) are entitled to take the opinion of the court, but if they do and then appeal unsuccessfully they may in certain circumstances be ordered to pay costs.6 Notes 1 Murdocca v Murdocca (No 2) [2002] NSWSC 505; BC200203390 at [71] per Campbell J.2 Murdocca v Murdocca (No 2) [2002] NSWSC 505; BC200203390. 3 Murdocca v Murdocca (No 2) [2002] NSWSC 505; BC200203390 .4 See [395-6010].5 Murdocca v Murdocca (No 2)
[2002] NSWSC 505; BC200203390 ; Crawford v McIntosh [2004] NSWSC 180; BC200401193 . Compare Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508; BC200302934 .6 See [395-5515]; [395-5995].
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(B) Seeking Advice under Trustee Legislation The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6025] Overview Personal representatives and trustees who are uncertain whether to take or defend legal proceedings or are facing difficulties of administration or are considering premature distribution or are contemplating a course of action which may be a breach of trust may get the advice and direction of the court. Either by way of an administration suit1 or as provided by legislation2 which gives to trustees including personal representatives3 the right to apply to the court for an opinion, advice or direction regarding the management or administration of the trust property or regarding the interpretation of the trust instrument.4 A trustee who is in genuine doubt about the propriety of any contemplated course of action in the exercise of his or her fiduciary duties and discretions is always entitled to seek proper professional advice and, if so advised, to protect his or her position by seeking the guidance of the court.5 The essential purpose of the provisions in the trustee legislation is to empower the court to advise trustees as to whether they would be justified in taking a course of action which they have indicated they intend to take after they have duly considered the matter.6 The court may, when asked to do so, take over and exercise a discretion of the trustee.7 However, where the trustees must exercise their discretion from time to time over a period, in changing circumstances, the court will not make a direction which allows the trustees to surrender that discretion so as to relieve the trustees of the duty to apply their minds to the questions from time to time. The trustees should apply their minds to the problems as they arise from time to time and if they cannot
themselves arrive at a satisfactory answer, they should inform the court of the relevant circumstances, and seek the courts direction from time to time.8 Although the court will give directions in relation to any particular subject matter, it cannot accept the surrender of the trustees discretion in a way that will absolve the trustee from exercising a judgment about it in the future. The court gives guidance to the trustee in the exercise of his or her discretion however the court ought not to give a general direction that absolves the trustee from an exercise of it.9 A trustee who seeks the approval of the court to an exercise of his or her discretion surrenders his or her discretion to the court.10 The jurisdiction is intended essentially for private advice from the court to the trustee.11 The courts advice to the trustee is normally based on information provided by the trustee.12 The court is prepared to hear submissions and objections raised by beneficiaries however, these submissions and objections are not permitted to obscure the real questions at issue. Which are, what directions ought to be given in the interests of the beneficiaries and whether the court has before it all the material appropriate to enable it to give those directions.13 The court is concerned solely to determine what ought to be done in the best interests of the estate and not to determine the rights of adversarial parties.14 Proceedings under the trustee legislation are appropriate where the matter is one arising in the administration of trusts which could not well be determined in a suit in which adverse interests would be represented.15 Proceedings under the trustee legislation are appropriate where the trustee is in doubt about the extent of his or her powers under the trust instrument or how to exercise those powers.16 Proceedings under the trustee legislation are appropriate and even mandatory where the trustee wishes to distribute the estate in advance of the proper time, in order to terminate the trust.17 If a personal representative is considering undertaking or defending legal proceedings but is not sure whether to or not, the representative should seek the advice of the court. Failure to do so leaves the representative open to claims by beneficiaries or creditors asserting that the representatives action or inaction was incorrect.18 Notes 1 See [395-6010] (administration proceedings limited to particular matters).2 (ACT) Trustee Act 1925 s 63 (NT) Administration and Probate Act 1969 s 82 (real estate); (NT) Supreme Court Rules O 54 (NSW) Trustee Act 1925 s 63 (QLD) Trusts Act 1973 ss 96, 97 (protects the trustee or personal representative when acting under direction or advice of the court) (SA) Administration and Probate Act 1919 s 69; (SA) Trustee Act 1936 s 91 (VIC) Supreme Court (General Civil Procedure) Rules O 54. See also Re Atkinson (decd) [1971] VR 612 at 615 per Gillard J. (WA) Trustees Act 1962 s 92. Compare (WA) Administration Act 1903 s 45. Tasmania has no equivalent statutory provision, see Application of Perpetual Trustee Company Ltd [2003] NSWSC 1185; BC200307631 . Compare (TAS) Administration and Probate Act 1935 s 64. 3 (ACT) Trustee Act 1925 Dictionary (refers to `legal representative' which includes executor and administrator)
(NT) Trustee Act 1893 s 82 (refers to representative) (NSW) Trustee Act 1925 s 5 (includes legal representative (means executor or administrator), NSW Trustee and a trustee company) (QLD) Trusts Act 1973 s 5 (SA) Trustee Act 1936 s 4 (refers to `representative') (TAS) Trustee Act 1898 s 4 (VIC) Trustee Act 1958 s 3 (WA) Trustees Act 1962 s 6. 4 Re Morish [1939] SASR 305 at 313-14, 319 per Murray CJ ; Re Atkinson (decd) [1971] VR 612 at 615 per Gillard J ; Re Cassidy (decd) [1979] VR 369 at 373 per Lush J ; Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver , PC; Application of Perpetual Trustee Company Ltd [2003] NSWSC 1185; BC200307631 (a useful overview and discussion by Young CJ in Eq). Compare Re Pettifors Will Trusts; Roberts v Roberts [1966] Ch 257 at 260; [1966] 1 All ER 913; [1966] 2 WLR 778 per Pennycuick J . For further discussion see Frederick J, Supplement to Chapters on Equity in New South Wales: Administration of the Estates of Deceased Persons, 3rd ed, University of Sydney Law School, 1948. See also [395-6030]. 5 Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver, PC.6 Re Burbidge (No 2) (unreported, SC(NSW), Young J, No 6442 of 1992, 25 June 1993, BC9301765).7 Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 , PC.8 Re Allen-Meyricks Will Trusts; Mangnall v Allen-Meyrick [1966] 1 All ER 740 at 743; [1966] 1 WLR 499 per Buckley J .9 Public Trustee v Carew-Reid (unreported, SC(WA), Anderson J, No 1483, 13 August 1993, BC9301374) at 14 (where there were a number of actions on foot against the estate, and the trustee wished to be absolved from the duty of prosecuting any of them, the court preferred to consider the actions one by one rather than globally); IOOF Australia Trustees Ltd and The Trustee Act 1936 (1999) 205 LSJS 98; [1999] SASC 461; BC9907227 (it is for the court to say only whether certain courses of action are legal, and not whether the Trustee should take such action).10 Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver, PC.11 Re Mitchell (decd) (1913) 30 WN (NSW) 137 ; Harrison v Mills [1976] 1 NSWLR 42 . Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver shows that the court is always concerned with what ought to be done in the best interests of the estate and is not concerned to determine the rights of adversarial parties. Consistent with this, the court normally bases its advice on information provided by the trustee alone. Since the matter is not litigated before the judge, the advice is given personally to the trustee (Re Mitchell (decd) (1913) 30 WN (NSW) 137 ) and because the advice is private the court will not decide matters of basic controversy between the parties: Harrison v Mills [1976] 1 NSWLR 42 at 45 . Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; (2008) 249 ALR 250; [2008] HCA 42; BC200807738 .12 Alcock v Public Trustee (1936) 53 WN (NSW) 192 ; Re Grose (decd) [1949] SASR 55 at 60 per Mayo J ; Harrison v Mills [1976] 1 NSWLR 42 at 45 per Needham J ; Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver , PC.13 Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver , PC. See also Re Grose (decd) [1949] SASR 55 at 60 per Mayo J .14 Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver, PC. See also Re Ezekiels Settlement Trusts; National Provincial Bank Ltd v Hyam [1942] Ch 230 at 234; [1942] 2 All ER 224 per Lord Greene MR .
See also Re Mitchell (decd) (1913) 30 WN (NSW) 137 .15 Re Trusts of Campbell (1883) 9 VLR (E) 138 .16 Re Trusts of Campbell (1883) 9 VLR (E) 138 ; Harrison, Jones & Devlin Ltd v Union Bank of Australia Ltd (1909) 10 SR (NSW) 266; 27 WN (NSW) 39 ; Re Mitchell (decd) (1913) 30 WN (NSW) 137 ; Re Union Trustee Co of Australia Ltd; McColm and Earl of Suffolk [1936] QWN 6 ; Re Allen-Meyricks Will Trusts; Mangnall v Allen-Meyrick [1966] 1 All ER 740 at 744; [1966] 1 WLR 499 per Buckley J; Re Havill (decd) [1968] NZLR 1116 at 1128 per North P, at 1133 per Turner J.17 Re Cassidy (decd) [1979] VR 369 at 373 per Lush J . Compare Bullas v Public Trustee [1981] 1 NSWLR 641 .18 Fitzgerald v Smith (1889) 15 VLR 467 at 473 per A'Beckett J ; Re Atkinson (decd) [1971] VR 612 at 615-16 per Gillard J . However, this does not mean that an administration suit must be preceded by a proceeding under the trustee legislation seeking advice or direction on the question whether or not to litigate: Re Kirkegaard (decd) [1950] St R Qd 144 . The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6030] When procedure not appropriate The court does not, in proceedings under the trustee legislation, entertain a dispute between trustees, nor a question of interpretation of the document if it involves a question of breach of trust because in such proceedings the basic facts upon which the court acts are not proved or tested.1 The trustee legislation procedure is not appropriate for the construction of a will where there is controversy between the parties as to their entitlements under the will2 or in relation to other matters of controversy.3 In such cases proceedings for the administration of the estate or trust should be used rather than the trustee legislation procedure.4 Similarly, the trustee legislation procedure is not appropriate for seeking the conferral on trustees of powers which they would not otherwise have.5 The court may confer powers on trustees under other provisions.6 The trustee legislation is not appropriate if the question asked is hypothetical or regards a controversy that may never arise.7 Notes 1 Harrison v Mills [1976] 1 NSWLR 42 at 45 per Needham J . See also Re Atkinson (decd) [1971] VR 612 at 615-16 per Gillard J ; Re Donaldson; Perpetual Trustee Co v Donaldson (1912) 12 SR (NSW) 148; 29 WN (NSW) 28 ; Perpetual Trustee Co v Watson (No 1) (1927) 28 SR (NSW) 39 at 42; 45 WN (NSW) 1 per Harvey CJ ; Auspac Corporate Managers Pty Ltd v J Noble Pty Ltd [2003] NSWSC 548; BC200303239 . As to the trustee legislation see [395-6025] note 2. 2 Re Petersen (decd); Petersen v Petersen [1920] St R Qd 42 ; Re Kirkegaard (decd) [1950] St R Qd 144 ; Re Mitchell (decd) (1913) 30 WN (NSW) 137 ; Harrison v Mills [1976] 1 NSWLR 42 .3 Re Barry [1936] QWN 12 ; Wilcox v Poole [1974] 2 NSWLR 693 at 698 per Mahoney J .4 Re Petersen (decd); Petersen v Petersen [1920] St R Qd 42 ; Perpetual Trustee Co v Watson (No 1) (1927) 28 SR (NSW) 39 at 42; 45 WN (NSW) 1 per Harvey CJ ; Re Barry [1936] QWN 12 ; Pettifors Will Trusts, Re; Roberts v Roberts [1966] Ch 257 at 260; [1966] 1 All ER 913 per Pennycuick J; [1966] 2 WLR 778 ; Wilcox v Poole [1974] 2 NSWLR 693 at 698 per Mahoney J ; Harrison v Mills [1976] 1 NSWLR 42 (in administration proceedings the beneficiaries may be joined as parties and declarations made as to the interpretation of the instrument and to the respective rights of the parties and beneficiaries). See also Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver , PC. Compare Re Giles; Real and Personal Advance Co v Mitchell (1890) 43 Ch D
391 .5 Harrison, Jones & Devlin Ltd v Union Bank of Australia Ltd (1909) 10 SR (NSW) 266 at 279-80; 27 WN (NSW) 39 per Simpson CJ (reversed on other grounds Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492; 16 ALR 553; 11 SR (NSW) 283; [1910] HCA 44; BC1000033 ).6 (ACT) Trustee Act 1925 ss 81-84 (NT) Trustee Act 1893 ss 18(2), 50A (NSW) Trustee Act 1925 ss 81-84 (QLD) Trusts Act 1973 ss 6, 94, 95 (SA) Trustee Act 1936 ss 25B, 59B, 59C (TAS) Trustee Act 1898 ss 47, 55 (VIC) Trustee Act 1958 ss 63, 63A (WA) Trustees Act 1962 ss 89, 90. 7 Auspac Corporate Managers Pty Ltd v J Noble Pty Ltd [2003] NSWSC 548; BC200303239 . Contrast the administration procedure, which may be used for hypothetical questions see [3956015] note 6. The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6035] Effects and protections If the personal representative follows the advice of the court he or she is protected from any claim by a beneficiary or creditor arising from action or inaction observed in accordance with the courts direction.1 In order to secure the protection of the trustee legislation provisions, the trustee must disclose to the court all material and relevant facts and the true facts must be substantially as disclosed.2 It is of the highest importance that the court is put in possession of all the material necessary to enable the discretion to be exercised, because a trustee who seeks the approval of the court to an exercise of his or her discretion surrenders that discretion to the court.3 If all material facts are not disclosed, the trustee may lose the protection of the legislation.4 A person who administers without seeking the advice of court is not protected merely because he or she is relying on legal advice.5 The advice does not generally give rise to a binding decision.6 Parties represented on the application are bound by the judicial advice or directions given7 and in some jurisdictions the legislation provides that any person on whom notice is served is bound by the opinion, advice, direction or order as if the opinion, advice, direction or order had been given or made in proceedings to which he or she was a party.8 Executors and administrators9 are in general entitled to be indemnified out of the estate, as to the costs of administration.10 In particular, an executor or trustee who approaches the court for advice is to be protected in costs.11 The court will protect, in respect of costs, trustees who act on the advice of the court.12 Costs generally are ordered out of the estate on a solicitor and client basis.13 When an approach is made to the court for advice, the costs of parties other than the executor or trustee are normally ordered to be paid out of the estate.14 However, a personal representative may lose costs if he or she proceeds vexatiously, capriciously or where the matter could have been settled between the parties without seeking an
order.15 A trustee who wrongly tries to use the procedure under the trustee legislation where it is not appropriate may not get an order for costs.16 Notes 1 Re Atkinson (decd) [1971] VR 612 at 615 per Gillard J (advice on whether or not to litigate); Alcock v Public Trustee (1936) 53 WN (NSW) 192 at 193 per Maughan J . The trustee legislation gives express protection to persons who act in accordance with the courts opinion, advice or direction. Provided all the material facts are disclosed, the trustee is deemed to have discharged his or her duty as trustee in the subject matter of the application: (ACT) Trustee Act 1925 s 63(2) (NSW) Trustee Act 1925 s 63(2) See (NT) Trustee Act 1893 s 49A (QLD) Trusts Act 1973 s 97 (SA) Administration and Probate Act 1919 s 69(5); (SA) Trustee Act 1936 s 91 (extension of trustees) See (TAS) Trustee Act 1898 s 65 (WA) Trustees Act 1962 s 95. 2 Re Grose (decd) [1949] SASR 55 at 60 per Mayo J ( the judgment contains a useful discussion of the South Australian provision). See also In the Estate of Martin [1958] SASR 365 at 380 per Piper AJ .3 Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver , PC.4 Re Grose (decd) [1949] SASR 55 at 60 per Mayo J .5 Re Knights Trusts (1859) 27 Beav 45 at 49; 28 LJ Ch 625; 54 ER 18 at 20 per Romilly MR; Partington, Re; Partington v Allen (1887) 57 LT 654 at 660; 3 TLR 828 per Sterling J ; Re Beddoe; Downes v Cottam [1893] 1 Ch 547 at 557; (1892) 62 LJ Ch 233; 68 LT 595 per Lindley LJ ; Application of Perpetual Trustee Company Ltd [2003] NSWSC 1185; BC200307631 .6 Re Mitchell (decd) (1913) 30 WN (NSW) 137 ; Re Union Trustee Co of Australia Ltd; McColm and Earl of Suffolk [1936] QWN 6 ; Re Grose (decd) [1949] SASR 55 at 60 per Mayo J .7 Re Grose (decd) [1949] SASR 55 at 60 per Mayo J ; Re Union Trustee Co of Australia Ltd; McColm and Earl of Suffolk [1936] QWN 6 .8 (ACT) Trustee Act 1925 s 63(8) (NSW) Trustee Act 1925 s 63(11) (QLD) Trusts Act 1973 s 99 (SA) Trustee Act 1936 ss 90, 91; (SA) Administration and Probate Act 1919 s 69. There are no equivalent provisions in the other jurisdictions. 9 See generally (ACT) Administration and Probate Act 1929 s 13 (NSW) Imperial Acts Application Act 1969 s 14 (QLD) Succession Act 1981 s 50 (TAS) Administration and Probate Act 1935 s 24 (VIC) Administration and Probate Act 1958 s 27.
There are no equivalent provisions in the other jurisdictions. Apart from legislation, there is a long standing principle that the rights, powers and duties of administrators are assimilated to those of executors, except to the extent that the will directs the executor and the administrator cum testamento annexo. See Toller S, Law of Executors and Administrators, 5th ed, Butterworths, London, 1822, p 369 (an administrators powers and duties, so far as they concern the collecting of the effects, the making of an inventory, and the payment of debts, are altogether the same as that of an executor, although there is necessarily a parting of the ways at the subsequent disposition of the property, because there is no will to direct the administrator). 10 OBrien v Tracy (1907) 24 WN (NSW) 44 ; Barnett v Rogers (1914) SALR 138; National Trustees, Executors & Agency Co of Australasia Ltd v Barnes (1941) 64 CLR 268; [1941] ALR 58; [1941] VLR 133 ; Murdocca v Murdocca (No 2) [2002] NSWSC 505; BC200203390 (useful discussion of what is included in costs).11 See (ACT) Court Procedure Rules 2006 R1732 (Costs Trustee) (for generally position of trustees with regard to costs) See (SA) Supreme Court Civil Rules 2006 r 267 (TAS) Supreme Court Rules 2000r 57 (VIC) Supreme Court (General Civil Procedure) Rules r 63.26 (Trustee Mortgagee) (WA) Rules of the Supreme Court 1971 O 66, r 9(2) (costs generally) There are no equivalent provisions in other jurisdictions. 12 Fitzgerald v Smith (1889) 15 VLR 467 at 473 per A'Beckett J . In Alcock v Public Trustee (1936) 53 WN (NSW) 192 at 193 per Maughan AJ (alternatives in relation to costs where a claim on the estate would leave insufficient residue to cover the trustees costs).13 Re Buckton; Buckton v Buckton [1907] 2 Ch 406 at 414-15; (1907) 97 LT 332 per Kekewich J ; Gleeson v Fitzpatrick (1920) 29 CLR 29 at 35 per Knox CJ. Compare Sharp v Lush (1879) 10 Ch D 468; 48 LJ Ch 231 ; West v Public Trustee [1942] SASR 109 at 123 per Mayo J ; Elders Trustee & Executor Co Ltd v Eastoe [1963] WAR 36 at 40 per Hale J .14 Sharp v Lush (1879) 10 Ch D 468; 48 LJ Ch 231 .15 Re Cabburn; Gage v Rutland (1882) 46 LT 848; Re Blake; Jones v Blake (1885) 29 Ch D 913 at 917; 53 LT 302 per Cotton LJ ; Re Hodgkinson; Hodgkinson v Hodgkinson [1895] 2 Ch 190; [1895-9] All ER Rep Ext 2136; (1895) 64 LJ Ch 663 . Compare Re Buckton; Buckton v Buckton [1907] 2 Ch 406 at 414-15; (1907) 97 LT 332 per Kekewich J (these are administration suit cases, but it seems that the principle is a general one).16 See Harrison v Mills [1976] 1 NSWLR 42 at 46-7 per Needham J ; Auspac Corporate Managers Pty Ltd v J Noble Pty Ltd [2003] NSWSC 548; BC200303239 .
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(B) Seeking Advice under Trustee Legislation The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6025] Overview Personal representatives and trustees who are uncertain whether to take or defend legal proceedings or are facing difficulties of administration or are considering premature distribution or are contemplating a course of action which may be a breach of trust may get the advice and direction of the court. Either by way of an administration suit1 or as provided by legislation2 which gives to trustees including personal representatives3 the right to apply to the court for an opinion, advice or direction regarding the management or administration of the trust property or regarding the interpretation of the trust instrument.4 A trustee who is in genuine doubt about the propriety of any contemplated course of action in the exercise of his or her fiduciary duties and discretions is always entitled to seek proper professional advice and, if so advised, to protect his or her position by seeking the guidance of the court.5 The essential purpose of the provisions in the trustee legislation is to empower the court to advise trustees as to whether they would be justified in taking a course of action which they have indicated they intend to take after they have duly considered the matter.6 The court may, when asked to do so, take over and exercise a discretion of the trustee.7 However, where the trustees must exercise their discretion from time to time over a period, in changing circumstances, the court will not make a direction which allows the trustees to surrender that discretion so as to relieve the trustees of the duty to apply their minds to the questions from time to time. The trustees should apply their minds to the problems as they arise from time to time and if they cannot themselves arrive at a satisfactory answer, they should inform the court of the relevant circumstances, and seek the courts direction from time to time.8 Although the court will give directions in relation to any particular subject matter, it cannot accept the surrender of the trustees discretion in a way that will absolve the trustee from exercising a judgment about it in the future. The court gives guidance to the trustee in the exercise of his or her discretion however the court ought not to give a general direction that absolves the trustee from an exercise of it.9 A trustee who seeks the approval of the court to an exercise of his or her discretion surrenders his or her discretion to the court.10 The jurisdiction is intended essentially for private advice from the court to the trustee.11 The courts advice to the trustee is normally based on information provided by the trustee.12 The court is prepared to hear submissions and objections raised by beneficiaries however, these submissions and objections are not permitted to obscure the real questions at issue. Which are, what directions ought to be given in the interests of the beneficiaries and whether the court has before it all the material appropriate to enable it to give those directions.13 The court is concerned solely to determine what ought to be done in the best interests of the estate and not to determine the rights of adversarial parties.14
Proceedings under the trustee legislation are appropriate where the matter is one arising in the administration of trusts which could not well be determined in a suit in which adverse interests would be represented.15 Proceedings under the trustee legislation are appropriate where the trustee is in doubt about the extent of his or her powers under the trust instrument or how to exercise those powers.16 Proceedings under the trustee legislation are appropriate and even mandatory where the trustee wishes to distribute the estate in advance of the proper time, in order to terminate the trust.17 If a personal representative is considering undertaking or defending legal proceedings but is not sure whether to or not, the representative should seek the advice of the court. Failure to do so leaves the representative open to claims by beneficiaries or creditors asserting that the representatives action or inaction was incorrect.18 Notes 1 See [395-6010] (administration proceedings limited to particular matters).2 (ACT) Trustee Act 1925 s 63 (NT) Administration and Probate Act 1969 s 82 (real estate); (NT) Supreme Court Rules O 54 (NSW) Trustee Act 1925 s 63 (QLD) Trusts Act 1973 ss 96, 97 (protects the trustee or personal representative when acting under direction or advice of the court) (SA) Administration and Probate Act 1919 s 69; (SA) Trustee Act 1936 s 91 (VIC) Supreme Court (General Civil Procedure) Rules O 54. See also Re Atkinson (decd) [1971] VR 612 at 615 per Gillard J. (WA) Trustees Act 1962 s 92. Compare (WA) Administration Act 1903 s 45. Tasmania has no equivalent statutory provision, see Application of Perpetual Trustee Company Ltd [2003] NSWSC 1185; BC200307631 . Compare (TAS) Administration and Probate Act 1935 s 64. 3 (ACT) Trustee Act 1925 Dictionary (refers to `legal representative' which includes executor and administrator) (NT) Trustee Act 1893 s 82 (refers to representative) (NSW) Trustee Act 1925 s 5 (includes legal representative (means executor or administrator), NSW Trustee and a trustee company) (QLD) Trusts Act 1973 s 5 (SA) Trustee Act 1936 s 4 (refers to `representative') (TAS) Trustee Act 1898 s 4 (VIC) Trustee Act 1958 s 3 (WA) Trustees Act 1962 s 6. 4 Re Morish [1939] SASR 305 at 313-14, 319 per Murray CJ ; Re Atkinson (decd) [1971] VR 612 at 615 per Gillard J ; Re Cassidy (decd) [1979] VR 369 at 373 per Lush J ; Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver , PC; Application of Perpetual Trustee Company Ltd [2003] NSWSC 1185; BC200307631 (a useful overview and discussion by Young CJ in Eq). Compare Re Pettifors Will Trusts; Roberts v Roberts [1966] Ch 257 at 260; [1966] 1 All ER 913; [1966] 2 WLR 778 per Pennycuick J . For
further discussion see Frederick J, Supplement to Chapters on Equity in New South Wales: Administration of the Estates of Deceased Persons, 3rd ed, University of Sydney Law School, 1948. See also [395-6030]. 5 Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver, PC.6 Re Burbidge (No 2) (unreported, SC(NSW), Young J, No 6442 of 1992, 25 June 1993, BC9301765).7 Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 , PC.8 Re Allen-Meyricks Will Trusts; Mangnall v Allen-Meyrick [1966] 1 All ER 740 at 743; [1966] 1 WLR 499 per Buckley J .9 Public Trustee v Carew-Reid (unreported, SC(WA), Anderson J, No 1483, 13 August 1993, BC9301374) at 14 (where there were a number of actions on foot against the estate, and the trustee wished to be absolved from the duty of prosecuting any of them, the court preferred to consider the actions one by one rather than globally); IOOF Australia Trustees Ltd and The Trustee Act 1936 (1999) 205 LSJS 98; [1999] SASC 461; BC9907227 (it is for the court to say only whether certain courses of action are legal, and not whether the Trustee should take such action).10 Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver, PC.11 Re Mitchell (decd) (1913) 30 WN (NSW) 137 ; Harrison v Mills [1976] 1 NSWLR 42 . Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver shows that the court is always concerned with what ought to be done in the best interests of the estate and is not concerned to determine the rights of adversarial parties. Consistent with this, the court normally bases its advice on information provided by the trustee alone. Since the matter is not litigated before the judge, the advice is given personally to the trustee (Re Mitchell (decd) (1913) 30 WN (NSW) 137 ) and because the advice is private the court will not decide matters of basic controversy between the parties: Harrison v Mills [1976] 1 NSWLR 42 at 45 . Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; (2008) 249 ALR 250; [2008] HCA 42; BC200807738 .12 Alcock v Public Trustee (1936) 53 WN (NSW) 192 ; Re Grose (decd) [1949] SASR 55 at 60 per Mayo J ; Harrison v Mills [1976] 1 NSWLR 42 at 45 per Needham J ; Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver , PC.13 Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver , PC. See also Re Grose (decd) [1949] SASR 55 at 60 per Mayo J .14 Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver, PC. See also Re Ezekiels Settlement Trusts; National Provincial Bank Ltd v Hyam [1942] Ch 230 at 234; [1942] 2 All ER 224 per Lord Greene MR . See also Re Mitchell (decd) (1913) 30 WN (NSW) 137 .15 Re Trusts of Campbell (1883) 9 VLR (E) 138 .16 Re Trusts of Campbell (1883) 9 VLR (E) 138 ; Harrison, Jones & Devlin Ltd v Union Bank of Australia Ltd (1909) 10 SR (NSW) 266; 27 WN (NSW) 39 ; Re Mitchell (decd) (1913) 30 WN (NSW) 137 ; Re Union Trustee Co of Australia Ltd; McColm and Earl of Suffolk [1936] QWN 6 ; Re Allen-Meyricks Will Trusts; Mangnall v Allen-Meyrick [1966] 1 All ER 740 at 744; [1966] 1 WLR 499 per Buckley J; Re Havill (decd) [1968] NZLR 1116 at 1128 per North P, at 1133 per Turner J.17 Re Cassidy (decd) [1979] VR 369 at 373 per Lush J . Compare Bullas v Public Trustee [1981] 1 NSWLR 641 .18 Fitzgerald v Smith (1889) 15 VLR 467 at 473 per A'Beckett J ; Re Atkinson (decd) [1971] VR 612 at 615-16 per Gillard J . However, this does not mean that an administration suit must be preceded by a proceeding under the trustee legislation seeking advice or direction on the question whether or not to litigate: Re Kirkegaard (decd) [1950] St R Qd 144 . The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6030] When procedure not appropriate The court does not, in proceedings under the
trustee legislation, entertain a dispute between trustees, nor a question of interpretation of the document if it involves a question of breach of trust because in such proceedings the basic facts upon which the court acts are not proved or tested.1 The trustee legislation procedure is not appropriate for the construction of a will where there is controversy between the parties as to their entitlements under the will2 or in relation to other matters of controversy.3 In such cases proceedings for the administration of the estate or trust should be used rather than the trustee legislation procedure.4 Similarly, the trustee legislation procedure is not appropriate for seeking the conferral on trustees of powers which they would not otherwise have.5 The court may confer powers on trustees under other provisions.6 The trustee legislation is not appropriate if the question asked is hypothetical or regards a controversy that may never arise.7 Notes 1 Harrison v Mills [1976] 1 NSWLR 42 at 45 per Needham J . See also Re Atkinson (decd) [1971] VR 612 at 615-16 per Gillard J ; Re Donaldson; Perpetual Trustee Co v Donaldson (1912) 12 SR (NSW) 148; 29 WN (NSW) 28 ; Perpetual Trustee Co v Watson (No 1) (1927) 28 SR (NSW) 39 at 42; 45 WN (NSW) 1 per Harvey CJ ; Auspac Corporate Managers Pty Ltd v J Noble Pty Ltd [2003] NSWSC 548; BC200303239 . As to the trustee legislation see [395-6025] note 2. 2 Re Petersen (decd); Petersen v Petersen [1920] St R Qd 42 ; Re Kirkegaard (decd) [1950] St R Qd 144 ; Re Mitchell (decd) (1913) 30 WN (NSW) 137 ; Harrison v Mills [1976] 1 NSWLR 42 .3 Re Barry [1936] QWN 12 ; Wilcox v Poole [1974] 2 NSWLR 693 at 698 per Mahoney J .4 Re Petersen (decd); Petersen v Petersen [1920] St R Qd 42 ; Perpetual Trustee Co v Watson (No 1) (1927) 28 SR (NSW) 39 at 42; 45 WN (NSW) 1 per Harvey CJ ; Re Barry [1936] QWN 12 ; Pettifors Will Trusts, Re; Roberts v Roberts [1966] Ch 257 at 260; [1966] 1 All ER 913 per Pennycuick J; [1966] 2 WLR 778 ; Wilcox v Poole [1974] 2 NSWLR 693 at 698 per Mahoney J ; Harrison v Mills [1976] 1 NSWLR 42 (in administration proceedings the beneficiaries may be joined as parties and declarations made as to the interpretation of the instrument and to the respective rights of the parties and beneficiaries). See also Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver , PC. Compare Re Giles; Real and Personal Advance Co v Mitchell (1890) 43 Ch D 391 .5 Harrison, Jones & Devlin Ltd v Union Bank of Australia Ltd (1909) 10 SR (NSW) 266 at 279-80; 27 WN (NSW) 39 per Simpson CJ (reversed on other grounds Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492; 16 ALR 553; 11 SR (NSW) 283; [1910] HCA 44; BC1000033 ).6 (ACT) Trustee Act 1925 ss 81-84 (NT) Trustee Act 1893 ss 18(2), 50A (NSW) Trustee Act 1925 ss 81-84 (QLD) Trusts Act 1973 ss 6, 94, 95 (SA) Trustee Act 1936 ss 25B, 59B, 59C (TAS) Trustee Act 1898 ss 47, 55 (VIC) Trustee Act 1958 ss 63, 63A (WA) Trustees Act 1962 ss 89, 90. 7 Auspac Corporate Managers Pty Ltd v J Noble Pty Ltd [2003] NSWSC 548; BC200303239 . Contrast the administration procedure, which may be used for hypothetical questions see [3956015] note 6.
The paragraph below is current to 29 September 2010 To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6035] Effects and protections If the personal representative follows the advice of the court he or she is protected from any claim by a beneficiary or creditor arising from action or inaction observed in accordance with the courts direction.1 In order to secure the protection of the trustee legislation provisions, the trustee must disclose to the court all material and relevant facts and the true facts must be substantially as disclosed.2 It is of the highest importance that the court is put in possession of all the material necessary to enable the discretion to be exercised, because a trustee who seeks the approval of the court to an exercise of his or her discretion surrenders that discretion to the court.3 If all material facts are not disclosed, the trustee may lose the protection of the legislation.4 A person who administers without seeking the advice of court is not protected merely because he or she is relying on legal advice.5 The advice does not generally give rise to a binding decision.6 Parties represented on the application are bound by the judicial advice or directions given7 and in some jurisdictions the legislation provides that any person on whom notice is served is bound by the opinion, advice, direction or order as if the opinion, advice, direction or order had been given or made in proceedings to which he or she was a party.8 Executors and administrators9 are in general entitled to be indemnified out of the estate, as to the costs of administration.10 In particular, an executor or trustee who approaches the court for advice is to be protected in costs.11 The court will protect, in respect of costs, trustees who act on the advice of the court.12 Costs generally are ordered out of the estate on a solicitor and client basis.13 When an approach is made to the court for advice, the costs of parties other than the executor or trustee are normally ordered to be paid out of the estate.14 However, a personal representative may lose costs if he or she proceeds vexatiously, capriciously or where the matter could have been settled between the parties without seeking an order.15 A trustee who wrongly tries to use the procedure under the trustee legislation where it is not appropriate may not get an order for costs.16 Notes 1 Re Atkinson (decd) [1971] VR 612 at 615 per Gillard J (advice on whether or not to litigate); Alcock v Public Trustee (1936) 53 WN (NSW) 192 at 193 per Maughan J . The trustee legislation gives express protection to persons who act in accordance with the courts opinion, advice or direction. Provided all the material facts are disclosed, the trustee is deemed to have discharged his or her duty as trustee in the subject matter of the application: (ACT) Trustee Act 1925 s 63(2) (NSW) Trustee Act 1925 s 63(2) See (NT) Trustee Act 1893 s 49A (QLD) Trusts Act 1973 s 97 (SA) Administration and Probate Act 1919 s 69(5); (SA) Trustee Act 1936 s 91 (extension of trustees)
See (TAS) Trustee Act 1898 s 65 (WA) Trustees Act 1962 s 95. 2 Re Grose (decd) [1949] SASR 55 at 60 per Mayo J ( the judgment contains a useful discussion of the South Australian provision). See also In the Estate of Martin [1958] SASR 365 at 380 per Piper AJ .3 Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 per Lord Oliver , PC.4 Re Grose (decd) [1949] SASR 55 at 60 per Mayo J .5 Re Knights Trusts (1859) 27 Beav 45 at 49; 28 LJ Ch 625; 54 ER 18 at 20 per Romilly MR; Partington, Re; Partington v Allen (1887) 57 LT 654 at 660; 3 TLR 828 per Sterling J ; Re Beddoe; Downes v Cottam [1893] 1 Ch 547 at 557; (1892) 62 LJ Ch 233; 68 LT 595 per Lindley LJ ; Application of Perpetual Trustee Company Ltd [2003] NSWSC 1185; BC200307631 .6 Re Mitchell (decd) (1913) 30 WN (NSW) 137 ; Re Union Trustee Co of Australia Ltd; McColm and Earl of Suffolk [1936] QWN 6 ; Re Grose (decd) [1949] SASR 55 at 60 per Mayo J .7 Re Grose (decd) [1949] SASR 55 at 60 per Mayo J ; Re Union Trustee Co of Australia Ltd; McColm and Earl of Suffolk [1936] QWN 6 .8 (ACT) Trustee Act 1925 s 63(8) (NSW) Trustee Act 1925 s 63(11) (QLD) Trusts Act 1973 s 99 (SA) Trustee Act 1936 ss 90, 91; (SA) Administration and Probate Act 1919 s 69. There are no equivalent provisions in the other jurisdictions. 9 See generally (ACT) Administration and Probate Act 1929 s 13 (NSW) Imperial Acts Application Act 1969 s 14 (QLD) Succession Act 1981 s 50 (TAS) Administration and Probate Act 1935 s 24 (VIC) Administration and Probate Act 1958 s 27. There are no equivalent provisions in the other jurisdictions. Apart from legislation, there is a long standing principle that the rights, powers and duties of administrators are assimilated to those of executors, except to the extent that the will directs the executor and the administrator cum testamento annexo. See Toller S, Law of Executors and Administrators, 5th ed, Butterworths, London, 1822, p 369 (an administrators powers and duties, so far as they concern the collecting of the effects, the making of an inventory, and the payment of debts, are altogether the same as that of an executor, although there is necessarily a parting of the ways at the subsequent disposition of the property, because there is no will to direct the administrator). 10 OBrien v Tracy (1907) 24 WN (NSW) 44 ; Barnett v Rogers (1914) SALR 138; National Trustees, Executors & Agency Co of Australasia Ltd v Barnes (1941) 64 CLR 268; [1941] ALR 58; [1941] VLR 133 ; Murdocca v Murdocca (No 2) [2002] NSWSC 505; BC200203390 (useful discussion of what is included in costs).11 See (ACT) Court Procedure Rules 2006 R1732 (Costs Trustee) (for generally position of trustees with regard to costs) See (SA) Supreme Court Civil Rules 2006 r 267 (TAS) Supreme Court Rules 2000r 57 (VIC) Supreme Court (General Civil Procedure) Rules r 63.26 (Trustee Mortgagee)
(WA) Rules of the Supreme Court 1971 O 66, r 9(2) (costs generally) There are no equivalent provisions in other jurisdictions. 12 Fitzgerald v Smith (1889) 15 VLR 467 at 473 per A'Beckett J . In Alcock v Public Trustee (1936) 53 WN (NSW) 192 at 193 per Maughan AJ (alternatives in relation to costs where a claim on the estate would leave insufficient residue to cover the trustees costs).13 Re Buckton; Buckton v Buckton [1907] 2 Ch 406 at 414-15; (1907) 97 LT 332 per Kekewich J ; Gleeson v Fitzpatrick (1920) 29 CLR 29 at 35 per Knox CJ. Compare Sharp v Lush (1879) 10 Ch D 468; 48 LJ Ch 231 ; West v Public Trustee [1942] SASR 109 at 123 per Mayo J ; Elders Trustee & Executor Co Ltd v Eastoe [1963] WAR 36 at 40 per Hale J .14 Sharp v Lush (1879) 10 Ch D 468; 48 LJ Ch 231 .15 Re Cabburn; Gage v Rutland (1882) 46 LT 848; Re Blake; Jones v Blake (1885) 29 Ch D 913 at 917; 53 LT 302 per Cotton LJ ; Re Hodgkinson; Hodgkinson v Hodgkinson [1895] 2 Ch 190; [1895-9] All ER Rep Ext 2136; (1895) 64 LJ Ch 663 . Compare Re Buckton; Buckton v Buckton [1907] 2 Ch 406 at 414-15; (1907) 97 LT 332 per Kekewich J (these are administration suit cases, but it seems that the principle is a general one).16 See Harrison v Mills [1976] 1 NSWLR 42 at 46-7 per Needham J ; Auspac Corporate Managers Pty Ltd v J Noble Pty Ltd [2003] NSWSC 548; BC200303239 .
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V FAMILY PROVISION (1) INTRODUCTION
This chapter was updated by Bonnie Allan BA LLB(ANU), Grad Dip Legal Practice(ANU) Casual Lecturer/Tutor, Australian National University
The paragraph below is current to 16 May 2012
For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6500] Introduction Family provision legislation enables the court to vary a will1 or the distribution of an estate2 in favour of certain defined eligible persons or applicants on specified grounds.3 The family provision legislation applies to intestate4 as well as testate estates and vests in the court a power to make provision out of the estate of a deceased person, and in some jurisdictions out of certain other property, where the deceased did not make proper provision for such applicants.5 The adequacy of provision is assessed having regard to criteria such as the provision necessary for proper maintenance, support, education and advancement in the life of the applicant.6 Notes 1 As to wills generally see [395-1], [395-5].2 As to distribution of estates generally see [3954000]-[395-6035].3 (ACT) Family Provision Act 1969 (NT) Family Provision Act 1970 (NSW) Succession Act 2006 Ch 3 (applies to estates of persons who died on or after 1 March 2009; estates of persons who died before this date are still covered by the (NSW) Family Provision Act 1982 (Repealed): (NSW) Succession Act 2006 s 144, Sch 1 Pt 3; (NSW) Succession Amendment (Family Provision) Act 2008 (Repealed) s 2) (QLD) Succession Act 1981 (SA) Inheritance (Family Provision) Act 1972 (TAS) Testators Family Maintenance Act 1912 (VIC) Administration and Probate Act 1958 Pt IV (WA) Inheritance (Family and Dependants Provision) Act 1972. The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into force until the day set by proclamation, and a day had not been set at the time of publication. When in force, the amending Act renames the principal Act the (WA) Family Provision Act 1972. In Victoria, the legislation does not categorise particular persons who are eligible to apply for family provision, however, the court must consider various matters submitted by an applicant before making any order: see [395-6556]. As to eligible persons in the other jurisdictions see [395-6555] and [395-6560]-[395-6600]. 4 As to intestacy generally see [395-1500]-[395-2095].5 See [395-6555].6 See [395-6675]-[3956810].
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(2) PERSONS ELIGIBLE TO APPLY
(A) Grounds of Eligibility (I) Introduction The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6555] Introduction In all jurisdictions except Victoria,1 the family provision legislation includes some or all of the following categories of eligible applicants who may apply for provision under the applicable legislation:2 (1) spouses;3 (2) former spouses;4 (3) de facto spouses;5 (4)
children, step-children and grandchildren;6 (5) dependants;7 and (6) parents.8 Notes 1 As to the position in Victoria see [395-6556].2 See generally: (ACT) Family Provision Act 1969 s 7 (persons entitled to apply) (NT) Family Provision Act 1970 s 7 (persons entitled to apply) (NSW) Succession Act 2006 ss 3(1), 57 (definition of eligible person) (QLD) Succession Act 1981 s 41 (spouse, child or dependant) (SA) Inheritance (Family Provision) Act 1972 s 6 (persons entitled to apply) (TAS) Testators Family Maintenance Act 1912 s 3A (persons entitled to claim) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7 (persons entitled to claim). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into force until the day set by proclamation, and a day had not been set at the time of publication. When in force, the amending Act renames the principal Act the (WA) Family Provision Act 1972. 3 See [395-6560].4 See [395-6565].5 See [395-6570], [395-6575].6 See [395-6580]-[3956590].7 See [395-6595].8 See [395-6600]. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6556] Victoria In Victoria, a person may apply for an order to make provision out of the estate of the deceased person for proper maintenance and support.1 The court may make an order for adequate provision where the deceased had a responsibility to make provision for the applicant.2 The court must consider the following matters in making its determination:3 (1) whether the deceased had a responsibility to make provision for the person; (2) whether the distribution of the estate makes adequate provision4 for proper maintenance and support of the person;
(3) the amount of provision that the court may order; (4) any family or other relationship between the deceased person and the applicant, including the nature and length of that relationship; (5) the deceaseds obligations or responsibilities to the applicant, any other applicant and the beneficiaries of the estate; (6) the size and nature of the deceased estate including any liabilities; (7) the financial resources (including earning capacity) and financial needs of the applicant, any other applicant or the beneficiaries of the estate at the time of the hearing and the foreseeable future; (8) any physical, mental or intellectual disability of the applicant, any other applicant or the beneficiaries of the estate; (9) the age of the applicant; (10) any contribution (not for adequate compensation) by the applicant to building up the estate or to the welfare of the deceased or the deceaseds family; (11) any benefits previously given by the deceased to the applicant, any other applicant or the beneficiaries of the estate; (12) whether the applicant was being wholly or partly maintained by the deceased person and, where the court considers it relevant, the extent to which and the basis upon which the deceased assumed that responsibility; (13) the liability of any other person to maintain the applicant; (14) the character and conduct of the applicant or any other person; and (15)
any other matter that the court considers relevant. Notes 1 (VIC) Administration and Probate Act 1958 s 91(1), 91(2). Notice of an application must be served on the personal representative of the deceased, and on any other person the court orders: ibid s 93.2 Ibid s 91(1), 91(3).3 Ibid s 91(4).4 Ibid s 91(4)(b) (as effected by the deceaseds will or the operation of ibid Pt I Div 6 or both).
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(II) Spouses The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6560] Surviving spouse A surviving spouse of the deceased 1 is an eligible applicant under the family provision legislation, either as the spouse, partner, wife or husband, or person who was married to the deceased.2 The term spouse includes a person who has obtained a divorce order but whose spouse dies before the divorce is granted.3 Previously, the term widow or widower was used, and was construed as applying to the person who satisfies the description as at the date of death of the deceased, despite a later marriage of such person after the testators death.4 The burden of proof that a person is the spouse of the deceased is on the applicant5 and will normally be discharged by production of the certificate of marriage. 6 Where a person has been married outside Australia such person will be the spouse of the deceased for family provision purposes where the marriage is recognised as valid for the purposes of Australian law.7 A person whose marriage has been dissolved outside Australia will not be considered the spouse of the deceased for family provision purposes if the dissolution of marriage is recognised for the purposes of Australian law.8
The category of spouse has been ruled to include a person bigamously married to the deceased.9 However, some cases have held that the category of spouse or wife or husband in particular legislation may extend to a person who is in a polygamous marriage entered into in a county in which polygamous marriages are valid.10 In some jurisdictions the category is given a broader definition. In Queensland, a former spouse, de facto spouse and civil partner all fall within the definition of the term spouse.11 In Tasmania, spouse includes a person with whom the deceased was in a significant relationship within the meaning of the (TAS) Relationships Act 2003.12 In the Northern Territory, a traditional marriage between Aboriginal Australians may be recognised as a marriage for the purposes of eligibility to apply for family provision.13 Where a person is unable to prove that he or she is the spouse of the deceased, that person may still be eligible for family provision on another basis, such as being a de facto spouse or a dependant of the deceased.14 Notes 1 The term spouse is used here to refer to the husband or wife of the deceased.2 (ACT) Family Provision Act 1969 s 7(1)(a), 7(9) (partner includes spouse) (NT) Family Provision Act 1970 s 7(1)(a) (spouse) (NSW) Succession Act 2006 s 57(1)(a) (wife or husband) (QLD) Succession Act 1981 ss 5AA, 41 (spouse) (SA) Inheritance (Family Provision) Act 1972 ss 4, 6(a) (spouse) (TAS) Testators Family Maintenance Act 1912 s 3A(a) (spouse) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(a) (person who was married to). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into force until the day set by proclamation, and a day had not been set at the time of publication. When in force, the amending Act renames the principal Act the (WA) Family Provision Act 1972. The term spouse will be used going forward to refer to all such applicants. As to recognition of traditional Aboriginal marriages generally see aboriginals and torres strait islanders [5-3945]-[5-3955]. In Victoria, the legislation does not categorise particular persons who are eligible to apply for family provision, however, the court must consider various matters submitted by an applicant before making any order: see [395-6556]. 3 Groth v Perpetual Trustee Co Ltd (unreported, SC(NSW), Powell J, No 3162/76, 16 October 1978); Re Mayo (decd) and the Testators Family Maintenance Act [1968] 2 NSWR 709 . See also Re Seaford (decd); Seaford v Seifert [1968] P 53; [1968] 1 All ER 482 (applicant held to be the wife of the deceased where deceased died in the early hours of morning of same day on which application for divorce order lodged). See further family law [205-980].4 Shannon v Baker (1993) 9 WAR 325 (following Re Claverie (decd) [1970] 2 NSWR 380; (1970) 91 WN (NSW) 858 ); Bailey v Public Trustee [1960] NZLR 741 ; Re Taylor [1989] 1 Qd R 205 (not following Re De Feu [1964] VR 420 ). Compare Re De Feu [1964] VR 420 ; Newman v Newman [1927] NZLR 418 (applicants status determined at date of application).5 Re Peete [1952] 2 All ER 599; [1952] 2 TLR 383 ; Re Watkins; Watkins v Watkins [1953] 2 All ER 1113; [1953] 1 WLR 1323 . The presumption of the validity of the marriage arising from the certificate of marriage may be displaced if there is some evidence which leads the court to doubt the validity of the
marriage. The burden lies on the party who denies the validity of the marriage to produce reasonable evidence to overcome the presumption: Axon v Axon (1937) 59 CLR 395 at 404-5; [1938] ALR 89; (1937) 11 ALJ 342 per Dixon J; Solomon v Hatti (unreported, CA(NSW), Kirby P, Hope and McHugh JJA, No 386 of 1985, 10 February 1987, BC8701598). See also Public Trustee v Public Trustee (unreported, SC(WA), Rowland J, No 2815/1989, 29 March 1990, BC9001408).6 Tweney v Tweney [1946] P 180; [1946] 1 All ER 564; (1946) 174 LT 335 ; Solomon v Hatti (unreported, CA(NSW), Kirby P, Hope and McHugh JJA, No 386 of 1985, 10 February 1987, BC8701598).7 Such questions are now governed by (CTH) Marriage Act 1961 Pt VA. As to recognition of foreign marriages see conflict of laws [85-525]-[85-555].8 This question is governed by (CTH) Family Law Act 1975 s 104. As to recognition of overseas dissolutions of marriage see conflict of laws [85-710]-[85-775].9 Re Milanovic [1973] Qd R 205 . Such marriages are void: see family law [205-465].10 Imam Din v National Assistance Board [1967] 2 QB 213; [1967] 1 All ER 750; [1967] 2 WLR 257 (wife held to include a woman who had entered into a polygamous marriage in Pakistan which was valid according to Moslem law); Re Sehota (decd); Kaur v Kaur [1978] 3 All ER 385; [1978] 1 WLR 1506 (applicant wife of a polygamous marriage entered into in India and valid according to Indian law held to be a wife for the purposes of the English family provision legislation).11 (QLD) Succession Act 1981 ss 5AA, 41(1), (QLD) Civil Partnerships Act 2011. As to former spouses see [395-6565]. As de facto spouses see [395-6570], [395-6575]. 12 (TAS) Testators Family Maintenance Act 1912 s 3A(a).13 (NT) Interpretation Act 1978 s 19A(1). There are no equivalent provisions in the other jurisdictions. 14 As to de facto spouses see [395-6570], [395-6575]. As to dependants see [395-6595]. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6565] Former spouse A former spouse of the deceased may be an eligible applicant for provision under the family provision legislation.1 In the Australian Capital Territory, New South Wales and South Australia, a former wife or husband of the deceased is eligible to apply without having to meet any further criteria of eligibility.2 In Tasmania, a former wife or husband of the deceased is eligible to apply if maintenance criteria are met.3 In Queensland, in order to be an eligible applicant the former spouse must not have remarried at the date of the deceaseds death.4 All jurisdictions except the Australian Capital Territory, New South Wales, South Australia and Victoria include a maintenance requirement, the most common formulation of which is that the former spouse was receiving or entitled to receive maintenance from the deceased at the time of the deceaseds death.5 In Victoria, a court must have regard to any obligations or responsibilities of the deceased person to the applicant and to whether the applicant was being maintained by the deceased before that persons death.6 Receiving maintenance has been interpreted as including both the voluntary payment of maintenance by the deceased as well as payments made pursuant to some obligation or agreement.7 The provision of accommodation to the applicant
may be regarded as the provision of maintenance.8 Entitled to receive maintenance has been interpreted as meaning only an actual crystallised right or legal entitlement to specified payments of maintenance, such as a right under an existing order or agreement.9 In all jurisdictions except the Australian Capital Territory and the Northern Territory,10 a right to receive maintenance is not made out if the applicant simply has a right to make an application for an order for maintenance.11 Where a maintenance order has been obtained against the deceased but is discharged prior to death, the former spouse retains his or her eligibility so long as any arrears of maintenance remain unpaid as at the date of death.12 Notes 1 (ACT) Family Provision Act 1969 s 7(1)(a), 7(9) (definition of partner) (NT) Family Provision Act 1970 s 7(1)(b), 7(2) (NSW) Succession Act 2006 ss 57(1)(d) (definition of eligible person), 59(1). (QLD) Succession Act 1981 ss 5AA(2)(c) (definition of spouse), 41 (SA) Inheritance (Family Provision) Act 1972 s 6(b) (TAS) Testators Family Maintenance Act 1912 s 3A(d) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(b). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into force until the day set by proclamation, and a day had not been set at the time of publication. When in force, the amending Act renames the principal Act the (WA) Family Provision Act 1972. In Victoria, the legislation does not categorise particular persons who are eligible to apply for family provision, however, the court must consider various matters submitted by an applicant before making any order: see [395-6556]. As to eligible applicants under the family provision legislation generally see [395-6555]. As to the family provision legislation generally see [395-6500]. 2 (ACT) Family Provision Act 1969 s 7(1)(a), 7(9) (definition of partner) (NSW) Succession Act 2006 s 57(1)(d). A former wife or husband in New South Wales must also satisfy ibid s 59(1)(b), requiring that there be factors which warrant the making of the application. (SA) Inheritance (Family Provision) Act 1972 s 6(b). 3 (TAS) Testators Family Maintenance Act 1912 s 3A(d).4 (QLD) Succession Act 1981 s 5AA (definition of spouse).5 (NT) Family Provision Act 1970 s 7(1)(b), 7(2) (former spouse is eligible applicant if deceased maintained former spouse immediately before his or her death), 7(7), (former spouse regarded as maintained if there was a court order to pay maintenance in force, the deceased was maintaining the former spouse or making a contribution to the former spouses maintenance other than a nominal contribution or, if the deceased was still living, the court could make order for maintenance) (QLD) Succession Act 1981 ss 5AA, 41(1), 41(1A) (a dependant former husband or wife or civil partner who has been divorced, not remarried or entered into a civil partnership and is entitled to or receiving maintenance) (TAS) Testators Family Maintenance Act 1912 s 3A(d) (person whose marriage to the deceased was dissolved or annulled is an eligible applicant, provided that, at the time of death of the
deceased, he or she is receiving or entitled to receive maintenance from the deceased, whether pursuant to a court order, agreement or otherwise) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(b) (a person who at the date of the death of the deceased was receiving or entitled to receive maintenance from the deceased, as a former spouse of the deceased, whether pursuant to a court order, an agreement or otherwise). See also Sarich v Erceg [1984] WAR 11 (interpreting former wording of (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(b)). As to spousal maintenance see family law [205-4010]-[205-4160]. 6 (VIC) Administration and Probate Act 1958 s 91(4)(f), 91(4)(m).7 Re Prakash [1981] Qd R 189 .8 Corcoran v Bizannes (unreported, SC(NSW), Needham J, No 2076/84, 4 June 1985, BC8500783); Re Fulop (decd); Fulop v Public Trustee (1987) 8 NSWLR 679 at 682 per McLelland J; Puie v Public Trustee of Queensland (1986) Q ConvR 54-215; Ashdown v Public Trustee (unreported, SC(WA), Ipp J, No 1269/86, 27 September 1989, BC8900913); Wright v Hamill (unreported, SC(NSW), Needham J, No 1404/89, 18 July 1989, BC8901948). Compare Worth v Morton (unreported, SC(WA), Staples M, No 2222/86, 16 March 1988) (applicants occupation of premises as tenant in common with deceased not provision of maintenance to him by deceased); Clinch v Swift (unreported, SC(NSW), Young J, No 3008/85, 13 October 1986, BC8600634) (accommodation provided by deceased to her son and daughter-in-law; daughterin-law not dependent on mother-in-law); Shaw v Lambert (unreported, SC(NSW), Young J, No 4126/1986, 9 October 1987, BC8701079).9 Dobell v Van Damme [1982] VR 425 at 427 per McGarvie J; Re Lack [1981] Qd R 112 at 114 per Dunn J; Krause v Sinclair [1983] 1 VR 73 at 75-7; (1983) FLC 78-171 per Tadgell J.10 (ACT) Family Provision Act 1969 s 7(7)(c) (NT) Family Provision Act 1970 s 7(7)(c) (in both Acts being maintained by deceased expressly extends to situation where a court would, if deceased person still living, have power to make order requiring deceased person to pay maintenance to or for benefit of the applicant). 11 Fox v Burvill (1955) 92 CLR 334; [1955] ALR 849; (1955) 29 ALJ 414 ; Sarich v Erceg [1984] WAR 11 at 12 per Wickham SPJ ; Re Prakash [1981] Qd R 189 at 195 per Lee M ; Worth v Morton (unreported, SC(WA), Staples M, No 2222/86, 16 March 1988).12 Re Blood [1983] 1 Qd R 104 (six days of maintenance payments outstanding at date of death sufficient to amount to entitlement to receive maintenance).
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(III) De facto Spouses The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6570] General A de facto spouse 1 may make an application to the court for family provision from the estate of the deceased.2 A former de facto spouse may also be an eligible applicant. 3 In the Australian Capital Territory, a person is an eligible applicant if that person: (1) was the deceased persons domestic partner at any time and either (a) was the deceased persons civil partner at any time, (b) was the deceased persons domestic partner continuously for two years or more at any time, or (c) is the parent of a child of the deceased person;4 or (2) was in a domestic relationship with the deceased for two or more years continuously at any time.5 In the Northern Territory, a de facto partner or former de facto partner of the deceased is an eligible applicant.6 In New South Wales, a person with whom the deceased person was living in a close personal relationship at the time of the deceased persons death is an eligible applicant.7 In Queensland, a spouse is an eligible applicant and the term spouse is defined to include a de facto partner.8 In South Australia, a de facto spouse can apply as a domestic partner of the deceased.9 In Tasmania, a spouse is an eligible applicant and the term spouse is defined to include a person with whom the deceased person was in a significant relationship.10 In Western Australia, a de facto partner is an eligible applicant if that person was living with the deceased immediately before the death of the deceased.11 A person who at the date of the death of the deceased was receiving or entitled to receive maintenance from the deceased as a former de facto partner of the deceased (either pursuant to an order of any court, or to an
agreement or otherwise) is also an eligible applicant.12 A person who does not qualify as the de facto partner of the deceased may still be eligible to apply in some jurisdictions on another basis such as dependency.13 Notes 1 The term de facto spouse is used loosely to mean a person who although not legally married to the deceased was to some degree in a marriage-like relationship with the deceased and irrespective of whether that person and the deceased person are of different sexes or of the same sex.2 (ACT) Family Provision Act 1969 s 7(1)(a), 7(1)(b), 7(9). (NT) Family Provision Act 1970 s 7(1)(a); (NT) De Facto Relationships Act 1991 s 3A (NSW) Succession Act 2006 s 57(1)(b). For the definition of de facto relationship see (NSW) Interpretation Act 1987 s 21C. (QLD) Succession Act 1981 ss 5AA(1) (definition of spouse includes a de facto partner), 41(1) (SA) Inheritance (Family Provision) Act 1972 ss 4 (definition of domestic partner), 6(ba) (TAS) Testators Family Maintenance Act 1912 ss 2(1) (definition of spouse), 3A(a) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(a); (WA) Interpretation Act 1984 s 13A. The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into force until the day set by proclamation, and a day had not been set at the time of publication. When in force, the amending Act renames the principal Act the (WA) Family Provision Act 1972. In Victoria, the legislation does not categorise particular persons who are eligible to apply for family provision, however the court must consider various matters submitted by an applicant before making any order: see [395-6556]. 3 (ACT) Family Provision Act 1969 ss 7(1)(a), 7(1)(b), 7(9) (NT) Family Provision Act 1970 s 7(1)(b), 7(9) (QLD) Succession Act 1981 s 5AA(2)(c)(i) (SA) Inheritance (Family Provision) Act 1972 ss 4 (definition of domestic partner), 6(ba) (TAS) Testators Family Maintenance Act 1912 s 3A(e) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(b) (a maintenance requirement applies). In relation to additional requirements for former de factos in these jurisdictions see [395-6565]. In New South Wales, a former de facto may apply as a dependant. As to dependants see [3956595] In Victoria, the legislation does not categorise particular persons who are eligible to apply for family provision, however, the court must consider various matters submitted by an applicant before making any order: see [395-6556]. 4 (ACT) Family Provision Act 1969 s 7(1)(a), 7(1)(f), 7(9) (included within definition of partner). Domestic partner has the meaning given to that term in (ACT) Legislation Act 2001 s 169: (ACT) Family Provision Act 1969 s 7(9). A reference to a persons domestic partner is a
reference to someone who lives with the person in a domestic partnership, and includes a reference to a spouse or civil partner of the person: (ACT) Legislation Act 2001 s 169(1). A domestic partnership is the relationship between two people, whether of a different or the same sex, living together as a couple on a genuine domestic basis: ibid s 169(2). A reference to a domestic partnership includes a reference to a marriage and a civil partnership: ibid s 169(3). A civil partnership means a civil partnership under the (ACT) Civil Partnerships Act 2008: (ACT) Legislation Act 2001 Dictionary. A civil partner is someone who is in a civil partnership with someone else: ibid Dictionary.5 (ACT) Family Provision Act 1969 s 7(1)(b), 7(9). Domestic relationship has the same meaning as in the (ACT) Domestic Relationships Act 1994 s 3: (ACT) Family Provision Act 1969 s 7(9).6 (NT) Family Provision Act 1970 s 7(1)(a), 7(2)(a). De facto partner has the same meaning as in the (NT) De Facto Relationships Act 1991 s 3(1): (NT) Interpretation Act 1978 s 19A(3).7 (NSW) Succession Act 2006 s 57(1)(f). A close personal relationship is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care: (NSW) Succession Act 2006 s 3(3). For these purposes, a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care for fee and reward, or on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation): ibid s 3(4). A person in a close personal relationship with the deceased must also satisfy ibid s 59(1)(b), requiring that there be factors which warrant the making of the application.8 (QLD) Succession Act 1981 ss 5AA(1)(b), 41(1). De facto partner has the same meaning as in the (QLD) Acts Interpretation Act 1954 s 32DA: (QLD) Succession Act 1981 s 5AA(1)(b).9 (SA) Inheritance (Family Provision) Act 1972 ss 4 (definition of domestic partner), 6(ba). A domestic partner in relation to a deceased person means a person declared under the (SA) Family Relationships Act 1975 to have been the domestic partner of the deceased as at the date of his or her death, or at some earlier date: (SA) Inheritance (Family Provision) Act 1972 s 4.10 (TAS) Testators Family Maintenance Act 1912 ss 2(1), 3A. Significant relationship has the same meaning as in the (TAS) Relationships Act 2003: (TAS) Testators Family Maintenance Act 1912 s 2(1).11 (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(a). De facto partner is defined in (WA) Interpretation Act 1984 s 13A.12 (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(b).13 See [395-6595]. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6575] Marriage-like relationships The legislative definitions of the relationship that qualify a person as a de facto spouse have aspects in common, principally the requirement of a marriage-like relationship.1 The concept of a person having lived with the deceased person as his or her spouse on a bona fide domestic basis is a single concept and is not to be viewed as having discrete elements.2 The following list of relevant factors has received judicial support: 3 (1) duration of the relationship; (2) nature and extent of the common residence; (3)
whether or not a sexual relationship existed; (4) degree of financial interdependence, and any arrangements for support, between or by the parties; (5) ownership, use and acquisition of property; (6) procreation of children; (7) care and support of children; (8) performance of household duties; (9) degree of mutual commitment and support; and (10) reputation and public aspects of the relationship. Some of these elements are included as specific requirements in some jurisdictions.4 In the Australian Capital Territory and Western Australia, legislation lists examples or indicators of whether the necessary relationship exists.5 In some cases in the Northern Territory, New South Wales, Queensland and Tasmania, legislation requires that a court consider all the circumstances of a relationship including any of a list of factors specified in the legislation which are relevant in a particular case.6 A common residence may be of critical importance in the characterisation of the relationship, and while it is not essential that the applicant and the deceased lived under the one roof, the existence or non-existence of a common household may be significant in deciding whether or not a de facto relationship exists.7 A separation shortly before the death of one partner in a de facto relationship may not disqualify the surviving partner where the separation was not permanent and was not accompanied by any intention to terminate the relationship.8 The receipt of pensions as single persons living under the one roof does not necessarily preclude a finding that the applicant and the deceased were de facto spouses for the purposes of family provision.9 Usually the procreation, care and support of children raises a presumption that the parties are in a de facto relationship, but other factors may weigh against it.10 A statement by the applicant that the applicant lived in a de facto relationship with the deceased is a matter of fact and admissible in evidence.11 Statements by the deceased to the same effect may be admissible, depending on the legislation in the particular jurisdiction, or admissibility on
general principles.12 The holding out of a heterosexual couple as married is a strong indicator of a de facto relationship, particularly if the woman adopts the mans surname, because this is usually considered to be a statement to the world of the existence of a husband and wife relationship.13 Notes 1 (ACT) Legislation Act 2001 s 169(2) (domestic partnership) (NT) De Facto Relationships Act 1991 s 3A(2) (de facto relationship) (NSW) Property (Relationships) Act 1984 ss 4(2) (de facto relationship), 5 (domestic relationship), 5A (QLD) Acts Interpretation Act 1954 s 32DA (de facto partner) (SA) Family Relationships Act 1975 s 11A (domestic partner) (TAS) Relationships Act 2003 s 4(3) (significant relationship) (WA) Interpretation Act 1984 s 13A(2) (de facto partner). Consider Re Harding (decd); Thornton v Perpetual Trustees WA Ltd [1983] WAR 266 (interpreting former wording de facto widow or widow; person who is the survivor of a relationship which to all outward appearance was that of man and wife). In Victoria, the legislation does not categorise particular persons who are eligible to apply for family provision, however, the court must consider various matters submitted by an applicant before making any order: see [395-6555]. 2 Roy v Sturgeon (1986) 11 NSWLR 454 at 457-8; 11 Fam LR 271 per Powell J (criticising Weston v Public Trustee (1986) 4 NSWLR 407 ; approved Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 ; Moby v Schulter (2010) FLC 93-447; [2010] FamCA 748; BC201050841 ).3 Roy v Sturgeon (1986) 11 NSWLR 454 at 458-9; 11 Fam LR 271 per Powell J; approved Estate of Williams, Re; Ratcliffe v Cleary (2004) 13 Tas R 309; [2004] TASSC 154; BC200408728 per Blow J .4 For example, in South Australia the relationship must be of a specific duration: (SA) Family Relationships Act 1975 s 11A. 5 (ACT) Legislation Act 2001 s 169(2) (example of indicators of a domestic partnership) (WA) Interpretation Act 1984 s 13A(2) (factors indicating a de facto partner). 6 (NT) De Facto Relationships Act 1991 s 3A(2) (de facto relationship) (NSW) Property (Relationships) Act 1984 s 4(2) (de facto relationship) (QLD) Acts Interpretation Act 1954 s 32DA (a couple on a genuine domestic basis) (TAS) Relationships Act 2003 s 4(3) (significant relationship). 7 Re Fagan (decd) (1980) 23 SASR 454; 5 Fam LR 813 . The maintenance of separate residences by the deceased and the applicant may operate against the conclusion that the applicant was the de facto spouse of the deceased, even where they regularly spent part of the week together: Roy v Sturgeon (1986) 11 NSWLR 454 at 458; 11 Fam LR 271 per Powell J; Hamilton v Scarf (unreported, SC(NSW), McLelland J, No 1117/87, 3 November 1988, BC8801365). Both of these cases criticised Weston v Public Trustee (1986) 4 NSWLR 407 on this point. Compare Ward v Anderson (unreported, SC(NSW), Waddell CJ in Eq, No 3213/88, 6
June 1989, BC8902087) (applicant maintained own residence because close to where she worked and stayed there regularly; lived with deceased rest of time; held to be de facto).8 McLaughlin v Saillard (1990) DFC 95-082 (separation due to illness shortly before death; test was whether there was an intention by the deceased to terminate the de facto relationship). See also George v Hibberson (1987) DFC 95-064. See also Nelligan v Crouch [2007] NSWSC 840; BC200706313 .9 Sagovac v Public Trustee (unreported, SC(SA), White J, No 2060 of 1983, 20 November 1986); Marks v Minett (unreported, SC(NSW), Powell J, No 4606/85, 12 May 1988, BC8801959).10 Cooke v Cooke (1986) DFC 95-039 (woman became pregnant after brief relationship; mother adopted fathers surname but they did not live together at any time; held no de facto relationship); Simonis v Perpetual Trustee Co Ltd (1990) 21 NSWLR 677 at 685 per Kearney J.11 Ashdown v Public Trustee (unreported, SC(WA), Ipp J, No 1269/86, 27 September 1989, BC8900913). However, in South Australia, if the applicant is seeking a declaration that he or she is the putative spouse of a deceased person, (SA) Family Relationships Act 1975 s 11(5) requires that the claim must be supported by corroborative evidence: see [395-6570].12 See evidence [195-95]-[195-135], [195-1290]-[195-1400].13 Re RC and Director-General of Social Services (1981) 3 ALD 334; 7 Fam LR 396; 4 SSR 36 . See also Weston v Public Trustee (1986) 4 NSWLR 407 at 409 per Young J . It is not essential that there be a holding out of the applicant as the spouse of the other person: Re Fagan (decd) (1980) 23 SASR 454 at 465; 5 Fam LR 813 per Jacobs J. The opinions of neighbours, workmates, family and friends of the applicant and the deceased are relevant considerations: Ward v Anderson (unreported, SC(NSW), Waddell CJ in Eq, No 3213/88, 6 June 1989, BC8902087).
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(IV) Children The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6580] Children Children of a deceased person are eligible applicants for family provision. 1 The term child includes adult children and children who have not reached the age of majority.2
The term child includes adult children and children who have not reached the age of majority. Ex-nuptial children are eligible applicants since the introduction of status of children legislation.3 Adopted children are eligible applicants pursuant to adoption of children legislation.4 Artificially conceived children have been included in some circumstances as children of the deceased by virtue of specific legislation.5 In Queensland and Tasmania, and shortly Western Australia, the definition of child extends to a stepchild of the deceased.6 In some jurisdictions, a posthumous child (a child born after the death of the person in relation to whose estate an application is made) is included either by definition in the legislation7 or by construction of the word child. 8 Notes 1 (ACT) Family Provision Act 1969 s 7(1)(c) (NT) Family Provision Act 1970 s 7(1)(c) (NSW) Succession Act 2006 s 57(1)(c) (QLD) Succession Act 1981 s 41(1), 41(7) (SA) Inheritance (Family Provision) Act 1972 s 6(c) (TAS) Testators Family Maintenance Act 1912 s 3A(b) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(c). This Act is to be renamed the (WA) Family Provision Act 1972: see further note 6 below. In Victoria, the legislation does not categorise particular persons who are eligible to apply for family provision, however, the court must consider various matters submitted by an applicant before making any order: see [395-6555]. As to eligible applicants under the family provision legislation generally see [395-6556]. As to the family provision legislation generally see [395-6500]. As to adult children see [395-6795] (adult sons), [395-6800] (adult daughters). As to stepchildren see [395-6585], [395-6810]. As to adopted children see [395-6805]. As to grandchildren see [395-6590]. 2 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; 23 ALR 321; 53 ALJR 249 ; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] ALR 775; (1962) 36 ALJR 1 ; McCosker v McCosker (1957) 97 CLR 566; 31 ALJ 779 . See further family law [205-1390].3 (ACT) Parentage Act 2004 s 38(2) (NT) Status of Children Act 1978 s 4 (NSW) Status of Children Act 1996 s 5(1). See also (NSW) Succession Act 2006 s 57(2). (QLD) Status of Children Act 1978 s 3(1) (SA) Family Relationships Act 1975 s 6(1) (TAS) Status of Children Act 1974 s 3(1); (TAS) Testators Family Maintenance Act 1912 s 2(2) (child includes a child born out of wedlock) (VIC) Status of Children Act 1974 s 3(1) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 4(1) (child includes illegitimate child). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 , which
amends the (WA) Inheritance (Family and Dependants Provision) Act 1972, was passed on 25 October 2011, but substantive provisions do not come into effect until the day set by proclamation, and no day had been set at the time of publication. As to the scope of the status of children legislation see Gorey v Griffin [1978] 1 NSWLR 739 ; Hogan v Hogan (1983) 2 NSWLR 561; 58 ALJR 22. See further family law [205-1435]-[2051535]. In Tasmania and Victoria, an applicant is only regarded as the child of the deceased if, the deceased being a man, admitted paternity or paternity was established against him during his lifetime: (TAS) Status of Children Act 1974 s 7 (in the alternative it is sufficient that the father and the mother of the child were married to each other at the time of the childs conception or at some subsequent time) (VIC) Status of Children Act 1974 s 7 (in the alternative it is sufficient that the father and the mother of the child were married to each other at the time of the childs conception or at some subsequent time) In Western Australia an applicant is only regarded as the child of the deceased if parentage was admitted or established during the lifetime of the deceased or is established by the (WA) Artificial Conception Act 1985: (WA) Inheritance (Family and Dependants Provision) Act 1972 s 4(4), 4(4a). In the Australian Capital Territory, the Northern Territory, New South Wales, Queensland and South Australia, a declaration can be made notwithstanding that the alleged father is dead: (ACT) Parentage Act 2004 s 19(2) (NT) Status of Children Act 1978 ss 9B, 11 (NSW) Status of Children Act 1996 s 21(3)(a) (QLD) Status of Children Act 1978 s 7(1)(c) (SA) Family Relationships Act 1975 s 9(2). 4 (ACT) Adoption Act 1993 s 43 (NSW) Adoption Act 2000 ss 95-100 (QLD) Adoption Act 2009 s 214 (SA) Adoption Act 1988 s 9 (TAS) Adoption Act 1988 s 50 (VIC) Adoption Act 1984 s 53 (WA) Adoption Act 1994 s 75(1)(a). In Queensland and Tasmania, the family provision legislation expressly includes adopted children as eligible applicants: (QLD) Succession Act 1981 s 40 (TAS) Testators Family Maintenance Act 1912 s 2(1).
A child of the deceased who is subsequently adopted may lose the status of child for the purposes of family provision: Re Nielsen (decd) [1968] Qd R 221 ; Dehnert v Perpetual Executors and Trustees Assn of Australia Ltd (1954) 91 CLR 177; [1954] ALR 837; (1954) 28 ALJ 355 ; Re Collins (decd) [1990] 2 All ER 47; [1990] 2 WLR 161. Children adopted outside the forum hearing the family provision application may still qualify as children or adopted children of the deceased in accordance with statutory formulae for the recognition of adoptions: see conflict of laws [85-1080]-[85-1130]. As to adoption of children generally see family law [205-2210]-[205-2525]. 5 All jurisdictions include provisions both as to paternity and maternity: (ACT) Parentage Act 2004 ss 7-11 (NT) Status of Children Act 1978 Pts II, IIIA (NSW) Status of Children Act 1996 Pt 3 (QLD) Status of Children Act 1978 Pt 3 (SA) Family Relationships Act 1975 Pt 2A. See also ibid Pt 2B (surrogacy). (TAS) Status of Children Act 1974 Pt III (VIC) Status of Children Act 1974 Pt II (WA) Artificial Conception Act 1985 ss 5, 6, 7. A frozen embryo has been held to be a child for the purposes of intestate distribution if subsequently born alive: In the Estate of K; Ex parte Public Trustee (1996) 5 Tas R 365; 131 FLR 374 . See further family law [205-1630]-[205-1640] and medicine [280-5000]-[280-5160]. 6 (QLD) Succession Act 1981 s 40 (TAS) Testators Family Maintenance Act 1912 s 2(1). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011, which amends the (WA) Inheritance (Family and Dependants Provision) Act 1972, was passed on 25 October 2011, but substantive provisions do not come into effect until the day set by proclamation, and no day had been set at the time of publication. When in force, the amending Act renames the principal Act the (WA) Family Provision Act 1972, and amends it to include step child as an eligible applicant in particular circumstances: (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 ss 4, 9. See further [395-6585]. 7 (ACT) Family Provision Act 1969 s 7(8) (child to be regarded as having been born before death of deceased) (NT) Family Provision Act 1970 s 7(8) (child to be regarded as having been born before death of deceased) (QLD) Succession Act 1981 s 5A (VIC) Administration and Probate Act 1958 s 5(2) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(c). There are no equivalent provisions in the other jurisdictions. 8 V v G [1980] 2 NSWLR 366 ; Re Lawrence [1973] Qd R 201 . See also In the Estate of K;
Ex parte Public Trustee (1996) 5 Tas R 365; 131 FLR 374 . The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6585] Stepchildren In some jurisdictions, a stepchild may be an eligible applicant for provision from the deceaseds estate.1 Stepchildren are specifically identified as eligible applicants for family provision in the Australian Capital Territory, the Northern Territory and South Australia,2 and within the definition of children in Queensland and Tasmania. 3 Stepchildren may be eligible in New South Wales as dependants of the deceased.4 In Western Australia, stepchildren are not yet eligible applicants, but will be once amendments to the legislation come into force.5 In Queensland, and Tasmania, it has been held that the status of stepchild is lost on the death or divorce of the natural parent before the death of the deceased.6 Notes 1 As to eligible applicants under the family provision legislation generally see [395-6555]. As to the family provision legislation generally see [395-6500].2 (ACT) Family Provision Act 1969 s 7(1)(d) (NT) Family Provision Act 1970 s 7(1)(d) (SA) Inheritance (Family Provision) Act 1972 s 6(g). The eligibility of a stepchild is expressly subject to proof of an entitlement to maintenance from the deceased: (ACT) Family Provision Act 1969 s 7(2) (NT) Family Provision Act 1970 s 7(2) (SA) Inheritance (Family Provision) Act 1972 s 6(g). In Victoria, the legislation does not categorise particular persons who are eligible to apply for family provision, however, the court must consider various matters submitted by an applicant before making any order: see [395-6556]. 3 (QLD) Succession Act 1981 ss 40, 40A (TAS) Testators Family Maintenance Act 1912 s 2 (definition of child). 4 (NSW) Succession Act 2006 s 57(1)(e). See further [395-6595].5 In Western Australia, the definition of child does not include stepchildren: (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1). However, the (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set at the time of publication. When in force, the amending Act renames the principal Act the (WA) Family Provision Act 1972, and amends it to include step child as an eligible applicant in particular circumstances: (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 ss 4, 9.6 Re Burt [1988] 1 Qd R 23 ; Basterfield v Gay (1994) 3 Tas R 293; BC9405627 .
In Queensland, a person is a stepchild if he or she is the child of a spouse of the deceased person providing the deceased did not divorce the stepchilds natural parent: (QLD) Succession Act 1981 s 40A. Note that the definition of stepchild in (TAS) Testators Family Maintenance Act 1912 s 2 has been amended post Basterfield v Gay (1994) 3 Tas R 293; BC9405627 . The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6590] Grandchildren In most jurisdictions grandchildren are eligible applicants for family provision.1 In the Australian Capital Territory and the Northern Territory, a grandchild is not entitled to make an application unless the grandchilds parent (being a child of the deceased person) died before the deceased person died2 or one or both of the parents of the grandchild was alive at the date of the death of the deceased person, but the grandchild was not maintained by that parent or either of those parents immediately before the death of the deceased person.3 In Western Australia, a grandchild may only apply if the applicant was being wholly or partly maintained by the deceased at the date of death, or if a parent of the child, being a child of the deceased, died before the deceased and the grandchild was living at the date of death of the deceased or was born within 10 months after that date.4 Grandchildren may be eligible in New South Wales and Queensland as dependants;5 in New South Wales, if wholly or partly dependent upon the deceased at any time;6 in Queensland, if under 18 years of age and wholly or substantially maintained or supported (otherwise than for full valuable consideration) by the deceased at the time of death.7 Notes 1 (ACT) Family Provision Act 1969 s 7(1)(e) (a grandchild) (NT) Family Provision Act 1970 s 7(1)(e) (a grandchild) (SA) Inheritance (Family Provision) Act 1972 s 6(h) (as child of the child of the deceased person ) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(d) (a grandchild). The Act is to be renamed the (WA) Family Provision Act 1972: see further note 4 below. As to the position in New South Wales and Queensland see notes 6, 7 below. As to eligible applicants under family provision legislation generally see [395-6555]. In Victoria, the legislation does not categorise particular persons who are eligible to apply for family provision, however, the court must consider various matters submitted by an applicant before making any order: see [395-6556]. 2 (ACT) Family Provision Act 1969 s 7(3)(a) (NT) Family Provision Act 1970 s 7(3)(a). 3 (ACT) Family Provision Act 1969 s 7(3)(b)
(NT) Family Provision Act 1970 s 7(3)(b). 4 (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(d), as amended by (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 s 9. Note that the amending Act was passed on 25 October 2011, but the substantive provisions do not come into effect until the day set by proclamation, and no day had been set at the time of publication. When the amending Act comes into force, the principal Act will be renamed the (WA) Family Provision Act 1972: (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 s 4. Prior to amendment, instead of the alternative born within ten months requirement, the child must be in the mothers womb (en ventre sa mere) at the time of the deceaseds death.5 As to dependants see [395-6595].6 (NSW) Succession Act 2006 s 57(1)(e) (definition of eligible person). See also [395-6595].7 (QLD) Succession Act 1981 s 40(c) (definition of dependant). See also [3956595].
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(V) Dependants The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6595] Dependants Dependants are eligible applicants for family provision as a separate category of applicant in New South Wales and Queensland.1 In New South Wales, an application may be made by a person who was at any particular time wholly or partly dependent on the deceased and who, at that particular time or at any other time, was a member of a household of which the deceased was a member.2 In Queensland, dependants may apply only if they fall within the following defined groups:3 (1)
a parent of the deceased; (2) the parent of a surviving child under the age of 18 years of the deceased; or (3) a person under the age of 18 years. Other jurisdictions include a requirement of dependence upon, or maintenance by, the deceased as an aspect of eligibility under other categories of applicant.4 In the Australian Capital Territory and the Northern Territory, stepchildren, grandchildren and parents must satisfy some element of dependence before being able to apply.5 In South Australia, a stepchild who was being maintained wholly or partly by the deceased at the time of death may apply.6 In Western Australia, grandchildren must show dependence.7 In the Northern Territory, a de facto spouse must satisfy a maintenance requirement in order to be an eligible applicant.8 A maintenance requirement is also an aspect of eligibility of former spouses in all jurisdictions except in the Australian Capital Territory, New South Wales and South Australia.9 In Victoria, whether an applicant is eligible for provision out of the estate of a deceased person is to be assessed partly on the basis of whether the applicant was being maintained by the deceased before that persons death, as well as the extent to which and the basis upon which the deceased had assumed that responsibility.10 Dependence is assessed on the basis of the actual fact of dependence or reliance on the earnings of another for support.11 The standard of support is set by the parties themselves, so the fact that the applicant may have been able to support himself or herself from his or her own resources does not determine the question of dependence.12 The applicant and the deceased may be partially dependent on each other.13 There may be a relationship of mutual financial dependence.14 Where the applicant was supporting the deceased by way of provision for day-today living expenses, but the deceased was accumulating savings for the purposes of the purchase of a home for both of them, each may be considered as contributing to the support of the other.15 The provision of accommodation for the applicant by the deceased may satisfy the requirement of dependence or maintenance, especially in cases where the deceased was in loco parentis (in the place of a parent) to the applicant16 or where the applicant and the deceased were involved in a de facto relationship.17 The mere fact that a person is lodging in anothers dwelling house without rent does not necessarily make that person a dependant.18 Dependence is not limited to financial or material dependence.19 However, dependency cannot be established solely by the existence of an emotional relationship.20 The existence of a sexual relationship between the deceased and the applicant may be relevant in assessing the question of dependency, insofar as the court must consider how far the sexual relationship between the persons brought about a financial dependency in the sense of an obligation being owed by the deceased to provide financially for the applicant.21 In Queensland, the absence of full valuable consideration is a specific aspect of the maintenance element for eligibility as a dependant: the applicant must have been wholly or substantially maintained or supported (otherwise than for full valuable consideration) by the deceased person at the time of death.22 Difficulties arise in cases of mutual dependency and especially in relation to evaluating consideration in kind as against the provision of rent-free accommodation.23
In New South Wales, membership of a household of which the deceased was a member is a requirement for eligibility as a dependant.24 There are no hard and fast rules as to what amounts to a household.25 The question as to when a living arrangement becomes a household is one of degree.26 There is a difference between cooperative sharing of resources, including sharing a residence, and the forming of a household.27 A person may be a member of more than one household at the same time.28 A quasi-family unit must exist before there can be a household.29 The existence of a sexual relationship between the applicant and the deceased is relevant for the purpose of determining whether they were members of the same household where the sexual relationship is not the basis of eligibility on another ground.30 As a general rule, there must be some element of residence of the applicant and the deceased in the same house before they can be said to be members of the same household.31 Notes 1 (NSW) Succession Act 2006 s 57(1)(e) (QLD) Succession Act 1981 s 41(1). 2 (NSW) Succession Act 2006 s 57(1)(e), which also refers to grandchildren: see [395-6590].3 (QLD) Succession Act 1981 s 40 (definition of dependant).4 As to eligibility generally see [3956555].5 (ACT) Family Provision Act 1969 s 7(2)-(4) (NT) Family Provision Act 1970 s 7(2)-(4). 6 (SA) Inheritance (Family Provision) Act 1972 s 6(g). See also [395-6585].7 (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(d). See also [395-6590] (grandchildren). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into force until the day set by proclamation, and a day had not been set at the time of publication. When in force, the amending Act renames the principal Act the (WA) Family Provision Act 1972.8 (NT) Family Provision Act 1970 s 7(2)(a). As to de facto spouses see [395-6570], [395-6575]. 9 As to former spouses see [395-6565].10 (VIC) Administration and Probate Act 1958 s 91(4)(m).11 Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189; [1972-73] ALR 1266; (1973) 47 ALJR 184 per Gibbs J (followed Ball v Newey (1988) 13 NSWLR 489; BC8701304 , CA(NSW)). See also Moloney v Goodwin (unreported, SC(NSW), Needham J, No 5179/1988, 1 August 1989, BC8901894); Benney v Jones (1991) 23 NSWLR 559 ; Malbunka v Territory Insurance Office Board (2004) 14 NTLR 126; (2004) 41 MVR 126; [2004] NTSC 30; BC200403755 .12 Ball v Newey (1988) 13 NSWLR 489 at 492; BC8701304 per Samuels JA , CA(NSW); Moloney v Goodwin (unreported, SC(NSW), Needham J, No 5179/1988, 1 August 1989, BC8901894); Re Cobb [1989] 1 Qd R 522 . See also Nelligan v Crouch [2007] NSWSC 840; BC200706313 .13 Corcoran v Bizannes (unreported, SC(NSW), Needham J, No 2076/1984, 4 June 1985, BC8500783). Note that the definition in Queensland requires substantial dependence: (QLD) Succession Act 1981 s 40.14 Ball v Newey (1988) 13 NSWLR 489 at 491; BC8701304 per Samuels JA . See also Blackley v Proctor [2001] NSWSC 537; BC200103491 per Berecry AM .15 Re Cobb [1989] 1 Qd R 522 .16 Corcoran v Bizannes (unreported, SC(NSW), Needham J, No 2076/1984, 4 June 1985, BC8500783); Re Fulop (decd); Fulop v Public Trustee (1987) 8 NSWLR 679 at 682 per McLelland J .17 Puie v Public Trustee of Queensland (1986) Q ConvR 54-215; Ashdown v Public Trustee (unreported, SC(WA), Ipp J, No 1269/1986, 27 September 1989, BC8900913); Wright v Hamill (unreported, SC(NSW), Needham J, No 1404/1989, 18 July 1989, BC8901948). If the accommodation is not provided directly to the applicant; rather, the applicant merely gains the benefit of accommodation
provided to another (for example, the applicants spouse or parent), the simple fact of living in the deceaseds house may not satisfy the requirement of dependence: Clinch v Swift (unreported, SC(NSW), Young J, No 3008/1985, 13 October 1986, BC8600634) (son and daughter-in-law of deceased lived with her; daughter-in-law not dependent on mother-in-law); Shaw v Lambert (unreported, SC(NSW), Young J, No 4126 of 1986, 9 October 1987, BC8701079) (granddaughter lived with mother in grandfathers house, not dependent on her grandfather) but see Hornby v Cavenagh [2001] NSWSC 689; BC200105103 (niece found to be dependent upon her aunt in whose house she was sometimes a resident). In New South Wales, a former de facto relationship may be relevant as dependency can be established other than at the date of death: Wright v Hamill (unreported, SC(NSW), Needham J, No 1404/1989, 18 July 1989, BC8901948).18 Benney v Jones (1991) 23 NSWLR 559 .19 Petrohilos v Hunter (1991) 25 NSWLR 343 .20 Benney v Jones (1991) 23 NSWLR 559 .21 Ball v Newey (1988) 13 NSWLR 489; BC8701304 ; Benney v Jones (1991) 23 NSWLR 559 . Both of these cases involved alleged homosexual relationships between the applicant and the deceased. In the former case the relationship was accepted as having existed; in the latter, it was not. Evidence of friendship and familiarity does not necessarily indicate a sexual relationship, although it is open to the court to draw the inference of such a relationship if it considers the evidence to be strong enough: Benney v Jones (1991) 23 NSWLR 559 .22 (QLD) Succession Act 1981 s 40 (definition of dependant). A similar element is included in New South Wales in relation to the property which may be made the subject of an order: (NSW) Succession Act 2006 s 75(1). As to the notional estate see [395-7205]. Cases which have considered the (UK) Inheritance (Provision for Family and Dependants) Act 1975 s 1(1)(e), 1(3) offer some guidance as to the manner of interpreting such provisions in Australia, as the wording is similar to the Queensland section. See, for example, Re Wilkinson (decd); Neale v Newell [1978] Fam 22; [1978] 1 All ER 221; [1977] 3 WLR 514 ; Re Beaumont (decd); Martin v Midland Bank Trust Co Ltd [1980] Ch 444; [1980] 1 All ER 266; [1979] 3 WLR 818 ; Jelley v Iliffe [1981] Fam 128; [1981] 2 All ER 29; [1981] 2 WLR 801 , CA.23 Re Cobb [1989] 1 Qd R 522 . A beneficial construction of the requirement has been taken. See, for example, Re Wilkinson (decd); Neale v Newell [1978] Fam 22; [1978] 1 All ER 221; [1977] 3 WLR 514 ; Jelley v Iliffe [1981] Fam 128; [1981] 2 All ER 29; [1981] 2 WLR 801 .24 (NSW) Succession Act 2006 s 57(1)(e). Grandchildren must also demonstrate dependence at some time on the deceased: see [395-6590].25 Moloney v Goodwin (unreported, SC(NSW), Needham J, No 5179/1988, 1 August 1989, BC8901894); Marning v Staniforth (unreported, SC(NSW), Hodgson J, No 3151/1985, 25 March 1987, BC8701486).26 Moloney v Goodwin (unreported, SC(NSW), Needham J, No 5179/1988, 1 August 1989, BC8901894).27 Ball v Newey (1988) 13 NSWLR 489 at 492; BC8701304 per Samuels JA (using as an example students sharing accommodation). Guidance has been derived from Canadian and North American cases which have dealt with exceptions in insurance policies whereby damage to members of the insureds household were not covered: Benney v Jones (unreported, SC(NSW), Young J, No 1951/1989, 13 February 1990, BC9002739) (citing, for example, Muir v Royal Insurance Co (1981) 125 DLR (3d) 172 ; Wawanesa Mutual Insurance Co v Bell (1957) 8 DLR (2d) 577 ).28 Marning v Staniforth (unreported, SC(NSW), Hodgson J, No 3151/1985, 25 March 1987, BC8701486).29 Benney v Jones (1991) 23 NSWLR 559 , SC(NSW), Full Court (affirming Benney v Jones (unreported, SC(NSW), Young J, No 1951/1989, 13 February 1990, BC9002739)).30 Benney v Jones (1991) 23 NSWLR 559 , SC(NSW), Full Court (affirming Benney v Jones (unreported, SC(NSW), Young J, No 1951/1989, 13 February 1990, BC9002739)) (alleged homosexual relationship; only ground of eligibility possible was as a dependant).31 Marning v Staniforth (unreported, SC(NSW), Hodgson J, Eq 3150/1985, Eq 3151/1985, 25 March 1987, BC8701486). There is a difference between visiting someone regularly and forming a household with that person: Munro v Lake (unreported, SC(NSW), McLelland J, No 1748/1988, 8 February 1991, BC9102380) (applicant and mother spent weekends at deceaseds house prior to mothers marriage to deceased; insufficient to amount to household); Kingsland v McIndoe [1989] VR 273 sub nom Kingsland v Magistrates Court, Melbourne (1988) 12 Fam LR 460 ; Venables v Public Trustee (unreported, SC(NSW), McLelland J, No 3470/1989, 31 January 1990, BC9002784).
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(VI) Parents The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6600] Parents Parents1 are eligible applicants for family provision in certain circumstances.2 The specific criteria of eligibility differ between jurisdictions. 3 In the Australian Capital Territory and the Northern Territory, if the deceased was not survived in the Australian Capital Territory by a partner or any children or in the Northern Territory by a spouse or de facto, a parent may apply without having to meet any further criteria.4 If the deceased is survived by a partner, spouse, de facto and/or children (as applicable), the parent is only eligible if the parent was maintained5 by the deceased immediately before his or her death.6 In New South Wales and Queensland, a parent may apply as a dependant.7 In New South Wales, a parent must have been wholly or partly dependent upon the deceased at some time and have been, at that time or any other time, a member of a household of which the deceased person was a member.8 In Queensland, a parent must have been wholly or substantially maintained or supported (otherwise than for full valuable consideration) by the deceased at the time of death.9 In South Australia, a parent may apply on the basis that the parent cared for or contributed to the maintenance of the deceased.10 The parents standing to make an application depends on more than simply showing that the parent exercised rights of guardianship or custody in respect of the deceased.11 In Tasmania, the parents of the deceased may only apply if the deceased did not leave a spouse or children.12 In Western Australia, a parent may only apply if the parental relationship has been admitted by the deceased, being of full age, or established in the deceaseds lifetime.13
Notes 1 The term parent includes a parent of an ex-nuptial child: (ACT) Parentage Act 2004 s 38(2) (NT) Status of Children Act 1978 s 4(1) (NSW) Status of Children Act 1996 s 5 (QLD) Status of Children Act 1978 s 3(1) (SA) Family Relationships Act 1975 s 6(1) (TAS) Status of Children Act 1974 s 3(1) (VIC) Status of Children Act 1974 s 3(1). See also (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(e). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into force until the day set by proclamation, and a day had not been set at the time of publication. When in force, the amending Act renames the principal Act the (WA) Family Provision Act 1972. As to the equality of status legislation generally see family law [205-1490], [205-1495]. Parent also includes an adoptive parent: see further family law [205-2210]-[205-2525]. 2 (ACT) Family Provision Act 1969 s 7(1), 7(4) (NT) Family Provision Act 1970 s 7(1), 7(4) (NSW) Succession Act 2006 ss 57(1)(e), 60 (QLD) Succession Act 1981 s 40 (definition of dependant) (SA) Inheritance (Family Provision) Act 1972 s 6(i) (TAS) Testators Family Maintenance Act 1912 s 3A(c) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(e). In Victoria, the legislation does not categorise particular persons who are eligible to apply for family provision, however, the court must consider various matters submitted by an applicant before making any order: see [395-6556]. 3 As to eligible applicants for family provision generally see [395-6555].4 (ACT) Family Provision Act 1969 s 7(4)(b) (NT) Family Provision Act 1970 s 7(4)(b). 5 See [395-6595].6 (ACT) Family Provision Act 1969 s 7(4)(a) (NT) Family Provision Act 1970 s 7(4)(a). As to the meaning of maintained by the deceased person see: (ACT) Family Provision Act 1969 s 7(7) (NT) Family Provision Act 1970 s 7(7).
7 As to dependants see [395-6595].8 (NSW) Succession Act 2006 ss 57(1)(e), 60. See also Valenta v Valenta (unreported, SC(NSW), Young J, No 1279 of 1990, 19 June 1991, BC9101879). See further [395-6595]. Whereas in Queensland the dependence must exist at the date of death, in New South Wales the dependence may have existed at any time during the deceaseds life, see: (NSW) Succession Act 2006 s 57(1)(e) (QLD) Succession Act 1981 s 40. 9 (QLD) Succession Act 1981 s 40 (definition of dependant para (a)). In certain circumstances a parent and ex-nuptial child relationship must be admitted, acknowledged or declared before the parent is eligible: see [395-6580]. See further Re Cobb [1989] 1 Qd R 522 at 523 per Kneipp J (maintained and supported means mutual maintenance and support between applicant and deceased); Jelley v Iliffe [1981] Fam 128; [1981] 2 All ER 29; [1981] 2 WLR 801 .10 (SA) Inheritance (Family Provision) Act 1972 s 6(i). The maintenance/dependence question is the reverse of that in the Australian Capital Territory, the Northern Territory, New South Wales and Queensland (see notes 4-9 above), as the deceased must have been maintained to some extent by the parent, rather than the parent by the deceased.11 In the Estate of Terry (decd); Terry v Public Trustee (1981) 25 SASR 500 at 507 per Walters J (parent should have had possession and control of the child, either alone or jointly with the other parent and assumed responsibility for the preservation of the childs health, physical and moral needs, upbringing, accommodation and schooling).12 (TAS) Testators Family Maintenance Act 1912 s 3A(c). It would seem therefore that where the deceased was a woman, her parents would not be precluded from applying if she were survived by her husband, so long as she left no surviving children.13 (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(1)(e).
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(B) Loss of Eligibility The paragraph below is current to 16 May 2012 For new cases see ACL Reporter
To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6605] Survival of eligibility after death of applicant There have been diverging views as to whether an action for family provision survives the applicants death so as to allow the deceased applicants executor to be substituted as applicant under the legislation. In South Australia, the applicants cause of action has been held to survive the death of the applicant.1 In New South Wales, the contrary conclusion was reached in relation to applications under the former (NSW) Family Provision Act 1982.2 However, more recently the South Australian approach has been applied in New South Wales and approved in Victoria3 and Queensland.4 The decision of the court in each instance, particularly in Queensland and New South Wales, turns very much on circumstances of the individual applicant. The courts have recognised that the death of the applicant radically alters the relevant circumstances.5 Notes 1 In the Estate of Wardle (decd); Houlgrave v Wardle (1979) 22 SASR 139; 5 Fam LR 385 .2 McEvoy v Public Trustee (1989) 16 NSWLR 92 ; McMenemy v Public Trustee (unreported, SC(NSW), Bryson J, No 3698 of 1987, 10 December 1987, BC8700864). See also Charles v Charles (unreported, SC(NSW), Young J, No 3301 of 1986, No 3302 of 1986, 25 March 1988, BC8802091) (dicta that an order could be made in relation to the period between the date of the deceaseds death and the applicants death). The (NSW) Family Provision Act 1982 has been repealed, with family provision now dealt with in the (NSW) Succession Act 2006.3 Skyllas v Public Trustee [2006] NSWSC 606; BC200604524 ; Mckenzie v Lucas [2010] NSWSC 1083; BC201007143 ; Read v Nicholls [2004] VSC 66; BC200402114 .4 Affoo v Public Trustee of Queensland [2011] QSC 309; BC201108181 , applying Re Shannon (1935) 35 SR (NSW) 516; 52 WN (NSW) 171 (the application was not successful in this instance as the husband of the deceased was found to have managed well financially between the date of the deceaseds death and his own. He did have to sell some assets but had not run into debt).5 Affoo v Public Trustee of Queensland [2011] QSC 309; BC201108181 at [31] per Dalton J , referring to Mckenzie v Lucas [2010] NSWSC 1083; BC201007143 . The paragraph below is current to 16 May 2012 For new cases see ACL Reporter [395-6610] Persons causing death of the deceased A person who causes the death of the deceased may not be entitled to bring an application for family provision, notwithstanding that such person has satisfied the criteria for eligibility.1 The ground for denying eligibility in such circumstances may be that the reason that the applicant has been left without proper provision is not through any action of the deceased or the operation of the intestacy laws,2 or both, but rather the operation of the rule of public policy in relation to persons convicted of murder or manslaughter which denies them the right to benefit from the death of their victims.3 If the rule is held not to prevent an applicant from bringing an application, the circumstances leading to the death of the deceased would nevertheless be relevant in relation to questions of disentitling conduct4 or the character and conduct of the applicant. 5 Notes 1 Re Royse; Royse v Royse [1985] Ch 22; [1984] 3 All ER 339; [1984] 3 WLR 784 . As to eligible applicants generally see [395-6555]-[395-6600].2 As to intestacy rules see [395-1565][395-1665].3 Cleaver v Mutual Reserve Fund Life Assn [1892] 1 QB 147; [1891-94] All ER Rep 335; (1891) 66 LT 220 ; In the Estate of Crippen (decd) [1911] P 108; [1911-13] All ER Rep 207 . This reasoning has been applied in Re Royse; Royse v Royse [1985] Ch 22; [1984] 3 All
ER 339; [1984] 3 WLR 784 . See further criminal law. See generally Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508; BC200302934, affirmed (2003) 58 NSWLR 211; [2003] NSWCA 227; BC200304834 .4 As to disentitling conduct see [395-6895].5 For the meaning of character or conduct disentitling see [395-6910], [395-6915]. As to the forfeiture rule see [395-1195], [395-1200]. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6615] Contracting out of eligibility An agreement to contract out of eligibility is an agreement by a potential applicant not to make an application under the applicable family provision legislation in relation to the estate of another person upon that other persons death.1 Such agreements are usually made in the context of: (1) divorce settlements; (2) pre-nuptial agreements;2 (3) agreements between child and parent;3 and (4) agreements between personal representative and child.4 Only in New South Wales may an agreement not to apply for provision be approved under the legislation.5 In the other jurisdictions, and in New South Wales where no approval under the legislation is obtained, such agreements do not preclude the making of an application after the death of one of the parties to the agreement.6 To the extent that such agreements seek to prevent such an application being made they are void as against public policy.7 However, the court will nevertheless take into consideration the terms and conditions of such agreements in determining whether the deceased made inadequate provision for the applicant.8 In New South Wales, a release of rights is subject to court approval, and before the court will approve a release it has to consider specific matters.9 The court may only revoke an approval of release, in circumstances of fraud or undue influence, or with the consent of all sufficiently affected persons.10 It has been held that there is no inconsistency between the (CTH) Family Law Act 1975, under which a person may agree to forgo rights to future maintenance, and the family provision legislation in this respect.11 Notes 1 Lieberman v Morris (1944) 69 CLR 69; [1944] ALR 150; 18 ALJR 67; BC4400033 , HC of A, Full Court.2 Lieberman v Morris (1944) 69 CLR 69; [1944] ALR 150; 18 ALJR 67; BC4400033 ,
HC of A, Full Court; Parish v Parish [1924] NZLR 307 , SC(NZ), Full Court.3 Re Willert [1937] QWN 35 .4 Re Hatte [1943] St R Qd 1 .5 (NSW) Succession Act 2006 s 95.6 Lieberman v Morris (1944) 69 CLR 69; [1944] ALR 150; 18 ALJR 67; BC4400033 , HC of A, Full Court.7 Lieberman v Morris (1944) 69 CLR 69; [1944] ALR 150; 18 ALJR 67; BC4400033 , HC of A, Full Court.8 Singer v Berghouse (No 2) (1994) 181 CLR 201; 123 ALR 481 at 485; 68 ALJR 653; BC9404642 per Mason CJ, Deane and McHugh JJ.9 (NSW) Succession Act 2006 s 95(1), 95(4).10 Ibid s 96.11 Smith v Smith (1986) 161 CLR 217; 66 ALR 1; 10 Fam LR 769; FLC 91732 . The paragraph below is current to 16 May 2012 For new cases see ACL Reporter [395-6620] Forfeiture clauses A provision in a will stating that a person may not challenge the distribution by will, thereby purporting to preclude the making of a family provision application, is ineffective.1 A clause which is regarded as in terrorem (a threat to induce compliance with the condition) will be struck down.2 While valid if there is a gift over 3 to another beneficiary in the event of non-compliance with the condition,4 such a clause will not prevent an application under the family provision legislation,5 nor will it prevent the bringing of proceedings that may ordinarily be made in the administration of an estate.6 Notes 1 In the Will of Gaynor (decd) [1960] VR 640 .2 In the Will of Gaynor (decd) [1960] VR 640 .3 As to gifts generally see [395-1080]-[395-1125].4 Leong v Lim Beng Chye [1955] AC 648; [1955] 2 All ER 903; [1955] 3 WLR 303 ; In the Will of Gaynor (decd) [1960] VR 640 at 641-2 per OBryan J (dicta) (clause contained condition with no gift over on forfeiture).5 In the Will of Gaynor (decd) [1960] VR 640 ; Lieberman v Morris (1944) 69 CLR 69; [1944] ALR 150; 18 ALJR 67; BC4400033 ; Re Chester (decd) (1978) 19 SASR 247 ; Shah v Perpetual Trustee Co (1981) 7 Fam LR 97 .6 Permanent Trustee Co v Dougall (1931) 34 SR (NSW) 83 .
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(3) JURISDICTION TO MAKE AN ORDER
(A) Jurisdictional Tasks The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6675] The jurisdictional task In assessing applications under family provision legislation, the courts have distinguished two stages in the hearing of applications: the jurisdictional stage and the discretionary stage.1 The jurisdictional stage determines whether the applicant has been left without the specified level of provision.2 The discretionary stage determines whether the court will in fact make an order for provision in the particular circumstances and, if so, precisely what that order should be.3 These two stages have been described as the twin tasks under the family provision legislation.4 The principal jurisdictional task in all jurisdictions is the determination of whether the applicant has been left without proper provision. The propriety of provision is assessed on a similar basis in each jurisdiction, although there is some difference in wording.5 However, it appears that the differences in wording should not lead to differences in application of the legislation.6 Notes 1 Goodman v Windeyer (1980) 144 CLR 490 at 502; 31 ALR 23; 54 ALJR 470; BC8000095 per Gibbs J.2 Goodman v Windeyer (1980) 144 CLR 490 at 502; 31 ALR 23; 54 ALJR 470; BC8000095 per Gibbs J.3 White v Barron (1980) 144 CLR 431 at 443; 30 ALR 51; 54 ALJR 333; BC8000077 per Mason J.4 Goodman v Windeyer (1980) 144 CLR 490 at 502; 31 ALR 23; 54 ALJR 470; BC8000095 per Gibbs J; White v Barron (1980) 144 CLR 431 at 443; 30 ALR 51; 54 ALJR 333; BC8000077 per Mason J. The division between them has been recognised as artificial, but it is conventionally followed in the case law: Goodman v Windeyer (1980) 144 CLR 490 at 502 per Gibbs J, at 509 per Aickin J; 31 ALR 23; 54 ALJR 470; BC8000095 ; White v Barron (1980) 144 CLR 431 at 443; 30 ALR 51; 54 ALJR 333; BC8000077 per Mason J.5 (ACT) Family Provision Act 1969 s 8(2) (proper maintenance, education or advancement in life) (NT) Family Provision Act 1970 s 8(1) (proper maintenance, education and advancement in life) (NSW) Succession Act 2006 s 59 (proper maintenance, education and or advancement in life) (QLD) Succession Act 1981 s 41(1) (proper maintenance and support) (SA) Inheritance (Family Provision) Act 1972 s 7(1) (proper maintenance, education or advancement in life) (TAS) Testators Family Maintenance Act 1912 s 3(1) (proper maintenance and support)
(VIC) Administration and Probate Act 1958 s 91 (proper maintenance and support) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 6(1) (proper maintenance, support, education or advancement in life). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into force until the day set by proclamation, and a day had not been set at the time of publication. When in force, the amending Act renames the principal Act the (WA) Family Provision Act 1972. 6 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 507; [1956] ALR 739; (1956) 30 ALJ 231 per Dixon CJ. See also Anderson v Teboneras [1990] VR 527 at 537 per Ormiston J (rejecting a suggestion by Holland J in Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 543; (1980) 8 Fam LR 392 that maintenance and support might be narrower than maintenance, education and advancement in life). The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6680] Additional jurisdictional tasks Some jurisdictions include extra jurisdictional requirements according to the category of eligible applicant, or whether the application is for an initial order or an additional one.1 In New South Wales, a former spouse, a dependant or a person living in a close personal relationship with the deceased2 must satisfy the court that, having regard to all the circumstances of the case (whether past or present), there are factors warranting the making of the application.3 In Queensland, a dependant must satisfy the court that it is proper that some provision be made for the dependant, having regard to certain listed criteria, namely the extent to which the dependant was being maintained or supported by the deceased person before his or her death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case.4 In the Australian Capital Territory, where a previous order for provision has been made by way of periodical payments or the benefit of the investment of a lump sum, the court must be satisfied that the order is not adequate for the proper maintenance, education or advancement in life of the person having regard to all the circumstances of the case, before the court can exercise its jurisdiction to make additional provision.5 In New South Wales, an applicant in whose favour an order for provision has previously been made must satisfy the court that since an order for provision was last made, there has been a substantial detrimental change in the circumstances of the applicant, or that there was undisclosed property at the time the order was made and this would have resulted in a different order by the court.6 An applicant whose application for a family provision order in relation to the same estate was previously refused may receive a favourable order from the court only if there was undisclosed property in the estate, which substantially increases the value of the estate and the court would not have refused the application at the time if it was aware of the undisclosed property.7 In Western Australia, the applicant must demonstrate that since the date of the previous order circumstances have changed so that undue hardship will be caused if increased provision is not made, and that it would not be inequitable to grant relief having regard to all possible implications
in respect of other persons.8 The Tasmanian legislation also includes a power to make an order for additional provision, but imposes no extra jurisdictional hurdle in relation to such an application.9 Notes 1 The power to make orders for additional provision applies in: (ACT) Family Provision Act 1969 s 9A(3) (NSW) Succession Act 2006 s 59 (QLD) Succession Act 1981 ss 41, 42 (TAS) Testators Family Maintenance Act 1912 s 9(5)(b). The court cannot alter an order that disturbs a lawful distribution of the estate which occurred before the making of the application for alteration: ibid s 9(5A) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 16. The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and a day had not been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972. There are no equivalent provisions in the other jurisdictions. 2 (NSW) Succession Act 2006 ss 57(1)(d)-(f), 59(1)(b).3 Ibid s 9(1).4 (QLD) Succession Act 1981 s 41(1A). This requirement is broadly similar to the requirement, which applies in New South Wales in regard to applications by both dependants and former spouses, that the court be satisfied that there are factors warranting the making of the application.5 (ACT) Family Provision Act 1969 s 9A(3).6 (NSW) Succession Act 2006 s 59(3). There are also restrictions in relation to the property available for the making of orders in such circumstances.7 (NSW) Succession Act 2006 s 59(3)(b), 59(4).8 (WA) Inheritance (Family and Dependants Provision) Act 1972 s 16. The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and a day had not been set at the time of publication. The amending Act, which renames the principal Act the (WA) Family Provision Act 1972, adds a new subs (5) to ibid s 6. The new subsection provides that if an order for provision has been made or could have been made in favour of a person (the eligible person), the court may, on application by an eligible person, make an order in favour of the eligible person in relation to the estate only if, when the previous order was made or could have been made, the evidence about the nature and extent of the estate did not reveal the existence of undisclosed property, and the value of the undisclosed property would have materially affected the provision that the court ordered, or could have ordered, be made out of the estate in favour of the eligible person.9 (TAS) Testators Family Maintenance Act 1912 s 9(5)(b).
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(B) General Principles The paragraph below is current to 16 May 2012
For new cases see ACL Reporter
[395-6685] Introduction To assess the adequacy of provision for proper maintenance and support, the court must place itself in the position of the testator, treating the testator as a wise and just, rather than a fond and foolish, husband and father.1 The wisdom and justice of the spouse and parent is to be judged on the basis of the moral duty of such person to make provision for his or her spouse and children.2 This approach had been described as a gloss on the legislation.3 However, use of the approach has been recently reaffirmed by the High Court.4 Notes 1 Bosch v Perpetual Trustee Co Ltd (1938) 38 SR (NSW) 176; [1938] AC 463 at 478; [1938] 2 All ER 14 per Lord Romer. 2 See, for example, Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 526-7; [1956] ALR 739; (1956) 30 ALJ 231 per Kitto J; Worladge v Doddridge (1957) 97 CLR 1; [1957] ALR 691; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] ALR 775; (1962) 36 ALJR 1; Goodman v Windeyer (1980) 144 CLR 490; 31 ALR 23; 54 ALJR 470; BC8000095; White v Barron (1980) 144 CLR 431; 30 ALR 51; 54 ALJR 333; BC8000077. See also Goodman v Windeyer (1980) 144 CLR 490; 31 ALR 23; 54 ALJR 470; BC8000095. 3 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 512; [1956] ALR 739; (1956) 30 ALJ 231 per Williams J; Re McNamara (decd) (1938) 55 WN (NSW) 180 at 181, SC(NSW), Full Court; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 158; 23 ALR 321; 53 ALJR 249 per Murphy J; Goodman v Windeyer (1980) 144 CLR 490 at 504; 31 ALR 23; 54 ALJR 470; BC8000095 per Murphy J; Singer v Berghouse
(No 2) (1994) 181 CLR 201; 123 ALR 481 at 487; 68 ALJR 653; BC9404642 per Mason CJ, Deane J and McHugh J. There is some uncertainty as to whether this will change the manner of assessment of applications, as opposed to merely the language of judgments: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 31 per Kirby P (Masters references to moral duty in his decision taken as a shorthand phrase for ought in the former (NSW) Family Provision Act 1982 s 7 and inadequate and proper in ibid s 9(2); however, the moral duty of the deceased should not be used when applying the legislation (dicta)). In New South Wales the former (NSW) Family Provision Act 1982 s 23(b)(ii) expressly included the expression moral obligation. The (NSW) Family Provision Act 1982 has been repealed, with family provision now dealt with under the (NSW) Succession Act 2006. See ibid s 80(2)(b), where the phrase moral obligation has been retained. 4 Vigolo v Bostin (2005) 221 CLR 191; (2005) 213 ALR 692; [2005] HCA 11; BC200500902. See also Drioli v Rover (2005) 242 LSJS 301; [2005] SASC 395; BC200507742 (which questioned but followed the decision in Vilogo); Serle v Walsh [2006] QSC 377; BC200610379. The paragraph below is current to 16 May 2012
[395-6690] Intestacy The approach taken in cases of intestacy is to treat an application in the same way as it would have been treated if the deceased had left a will.1 The facts are considered as if the deceased left a will leaving the estate to the persons specified and in the proportions laid down by the applicable scheme of distribution on intestacy.2 In all jurisdictions, the legislation treats orders for relief from intestate estates in a similar fashion to those from testate estates.3
Notes 1 See [395-1500]-[395-1510]. 2 Re Wren (decd) [1970] VR 449; Re Russell [1970] QWN 22; In the Estate of Bridges (decd) (1975) 12 SASR 1 at 5 per Bray CJ, SC(SA), Full Court. 3 (ACT) Family Provision Act 1969 s 8 (NT) Family Provision Act 1970 s 8
(NSW) Succession Act 2006 s 59(1)(c)
(QLD) Succession Act 1981 s 41
(SA) Inheritance (Family Provision) Act 1972 s 7
(TAS) Testators Family Maintenance Act 1912 s 3
(VIC) Administration and Probate Act 1958 s 91
(WA) Inheritance (Family and Dependants Provision) Act 1972 s 6. The court is not bound to assume that the law relating to intestacy makes adequate provision in all cases: ibid s 6(2). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972.
[395-6695] Time for assessing the propriety of provision In all jurisdictions except New South Wales,1 the time for assessing the propriety of provision is the date of death.2 The question of what a wise and just spouse or parent would have done in each case is determined from the point of view of the date of death of the deceased, the intervening events between the date of death and the date of the hearing only being taken into account to the extent to which they are reasonably foreseeable.3 If the court decides that it has jurisdiction in a given case, events occurring after the deceaseds death will be taken into account in relation to the exercise of the second of the twin tasks, the exercise of the courts discretion.4 However, if the court decides that the deceased has not failed to make proper provision for the applicant, determined upon the circumstances existing at the date of the deceaseds death, including circumstances which could reasonably be foreseen at that time, then no subsequent alteration in those circumstances confers jurisdiction to make an order under the legislation.5
Reasonably foreseeable events are changes in health and economic conditions6 and the eroding effect of inflation on an annuity in a will.7
Notes 1 (NSW) Succession Act 2006 s 59(2) (assessment is the time of making the order). 2 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494; [1956] ALR 739; (1956) 30 ALJ 231 (overturning the former approach in New South Wales and South Australia to assess matters as at the date of the hearing: Re Forsaith (decd) (1926) 26 SR (NSW) 613; 33 WN (NSW) 171; Re Wheare [1950] SASR 61). 3 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 508; [1956] ALR 739; (1956) 30 ALJ 231 per Dixon CJ. As to the twin tasks see [395-6675]. 4 White v Barron (1980) 144 CLR 431 at 441; 30 ALR 51; 54 ALJR 333 at 337 per Mason J; BC8000077; Re De Poli (decd) [1964] NSWR 424 at 425 per Myers J, SC(NSW); Dun v Dun (1959) 100 CLR 361 at 366; [1959] AC 272 at 285; (1959) 33 ALJR 42 per Cohen LJ, PC; Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 509; [1956] ALR 739; (1956) 30 ALJ 231 per Dixon CJ; Re Hodgson (decd) [1955] VLR 481 at 489; [1956] ALR 108 per Shell J, SC(VIC), Full Court. 5 Re Brown (decd) [1952] St R Qd 47 at 51 per Townley J; Re Bodman [1972] Qd R 281 at 285 per Hoare J. 6 Re Bodman [1972] Qd R 281 at 286 per Hoare J; Estate of Lehfeldt (unreported, SC(QLD), Weld M, No 454/1985, 20 March 1986) (declining health of a son who had suffered a heart attack before the testator made his will was reasonably foreseeable). 7 White v Barron (1980) 144 CLR 431 at 441; 30 ALR 51; 54 ALJR 333; BC8000077 per Mason J; Re Bodman [1972] Qd R 281 at 286 per Hoare J (broad approach taken by court). The paragraph below is current to 16 May 2012
[395-6700] Current community standards Current community standards are relevant to the assessment of adequacy of provision for the applicant1. The wise and just spouse and parent is that fair and reasonable man in the community, the spokesman of which is and must be the court itself.2 Community feelings are considered, amongst other things, to view in disfavour a restriction upon remarriage in an annuity provision for a widow;3 and to regard a moral obligation to a daughter as continuing, despite the daughter marrying and becoming financially comfortable.4 The community standards are not defined by a sub-group within the community.5 While the particular religious or ethnic background of the deceased may explain the provision or lack of provision made for an applicant, the action of the wise and just spouse or parent is not to be assessed in that light. The community standards against which the propriety of provision is to be judged are broader than the standards of the particular group within the community from which the deceased originates.6 Notes 1 Vigolo v Bostin (2005) 221 CLR 191; (2005) 213 ALR 692 at 700; [2005] HCA 11; BC200500902 per Gleeson CJ; Singer v Berghouse (No 2) (1994) 181 CLR 201 at 502; 123 ALR
481; 68 ALJR 653; BC9404642 per Mason CJ. 2 Kearns v Ellis (unreported, CA(NSW), Mahoney, Glass, McHugh JJA, CA363 of 1983, 5 December 1984, BC8400149) at [8] per Mahoney J; McCallum v McCallum (unreported, SC(NSW), Young J, Eq 4601 of 1983, 2 May 1986, BC8601061). See also White v Barron (1980) 144 CLR 431 at 440 per Stephen J, at 445 per Mason J; 30 ALR 51; 54 ALJR 333; BC8000077; Re Leonard [1985] 2 NZLR 88 at 91 per Woodhouse P, CA(NZ). Whether the courts judgment as to the standards of the community is the opinion of the trial judge, or that of the ultimate appellate court has not been finally settled: Goodman v Windeyer (1980) 144 CLR 490 at 501; 31 ALR 23; 54 ALJR 470; BC8000095 per Gibbs J; Kearns v Ellis (unreported, CA(NSW), Mahoney, Glass, McHugh JJA, CA363 of 1983, 5 December 1984, BC8400149). 3 White v Barron (1980) 144 CLR 431 at 440; 30 ALR 51; 54 ALJR 333; BC8000077 per Stephen J. 4 See, for example, Re Leonard [1985] 2 NZLR 88 at 91 per Woodhouse P, CA(NZ). 5 Wenn v Howard [1967] VR 91 (Roman Catholic testator disapproving of conduct of children). 6 Wenn v Howard [1967] VR 91; Vitagliana v Vitagliana (unreported, SC(NSW), Kearney J, No 2908/1985, 27 July 1989, BC8901910) at 4 (Italian testator with high...expectations as to the role and functions of an Italian wife); Chan v Tsui [2005] NSWSC 82; BC200501012 (the son of the deceased had received the deceaseds estate, in accordance with Chinese custom, and the court found that the custom did not give rise to a reasonable expectation to the son that he would inherit, and made a family provision order in favour of the deceaseds other children). The paragraph below is current to 16 May 2012
[395-6705] Needs of applicant In assessing the adequacy of provision the court considers the needs of the applicant and balances those needs against the propriety of provision in each case.1 The needs of the applicant are measured by considering the ability of the applicant to meet his or her financial responsibilities. The criteria of need must be looked at in a relative sense.2 Need is not simply to be measured by what is necessary for maintenance or survival, but must also be measured against such things as the size of the estate and any other competing claims upon the testator.3 The standard of living (or station in life) of the applicant during the deceaseds lifetime is relevant to the assessment of the moral obligation.4 However, the standard of living during the deceaseds lifetime may not limit the assessment of the propriety of provision for the applicant out of the deceaseds estate.5 Where the estate of the deceased is large, the fact that the applicant enjoyed a modest or humble standard of living during the deceaseds lifetime is not an argument for limiting the assessment on the deceaseds death.6 A meagre lifestyle during the deceaseds lifetime might be one of the means by which the deceased accumulated the estate out of which provision is sought. Conversely, a lavish lifestyle enjoyed during the deceaseds lifetime may not set the standard to be provided by the court on a family provision application.7 Where the estate is large, the range of matters that might be considered appropriate to the applicants proper provision is broad.8 Notes 1 Re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 970; 12 GLR 753 per Stout CJ, CA(NZ) (approved Allardice v Allardice [1911] AC 730 at 734 per Lord Robson, PC); Bosch v Perpetual Trustee Co Ltd (1938) 38 SR (NSW) 176; [1938] AC 463 at 477-8; [1938] 2 All ER 14 per Lord Romer. See also Vigolo v Bostin (2005) 221 CLR 191 at 231; (2005) 213 ALR 692; [2005] HCA
11; BC200500902 per Callinan and Heydon JJ. 2 Re Young (decd); Young v Young [1965] NZLR 294 at 299 per North P and Turner J, CA(NZ); Re Harrison (decd); Thomson v Harrison [1962] NZLR 6 at 13 per Gresson P, CA(NZ). 3 Vigolo v Bostin (2005) 221 CLR 191; (2005) 213 ALR 692 at 697 per Gleeson CJ, at 721 per Callinan and Heydon JJ; [2005] HCA 11; BC200500902; Bosch v Perpetual Trustee Co Ltd (1938) 38 SR (NSW) 176; [1938] AC 463 at 478; [1938] 2 All ER 14 per Lord Romer; Re Leonard [1985] 2 NZLR 88 at 92 per Richardson J, CA(NZ) (indicates the importance of size of estate in monetary terms and competing claims). 4 Vigolo v Bostin (2005) 221 CLR 191; (2005) 213 ALR 692; [2005] HCA 11; BC200500902; Re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 970; 12 GLR 753 per Stout CJ, CA(NZ) (approved Allardice v Allardice [1911] AC 730 at 734 per Lord Robson, PC); Bosch v Perpetual Trustee Co Ltd (1938) 38 SR (NSW) 176; [1938] AC 463 at 476; [1938] 2 All ER 14 per Lord Romer; White v Barron (1980) 144 CLR 431 at 457; 30 ALR 51; 54 ALJR 333; BC8000077 per Wilson J; Re Adams [1967] VR 881 (son received an amount sufficient to complete his university course). 5 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 509; [1956] ALR 739; (1956) 30 ALJ 231 per Dixon CJ; Re Saxon (decd); Saxon v Elders Trustee and Executor Co Ltd (1975) 12 SASR 110 at 114-15 per Hogarth J; Re Richardson (decd) (1920) SALR 24 at 46 per Poole J; Re Hokin [1959] VR 711 at 712; [1959] ALR 1291 per OBryan J; Re Borthwick (decd); Borthwick v Beauvais [1949] Ch 395 at 400; [1949] 1 All ER 472 per Harman J; Pogorelic v Banovich [2007] WASC 45; BC200701009. 6 Welsh v Mulcock [1924] NZLR 673 at 686; [1924] GLR 169 per Salmond J; Re Buckland (decd) [1966] VR 404 at 413 per Adam J; Re Mercer (decd) [1977] 1 NZLR 469 at 474 per White J (affirmed on appeal Re Mercer (decd) [1978] 2 NZLR 514); Worladge v Doddridge (1957) 97 CLR 1 at 21; [1957] ALR 691 per Kitto J; Re Saxon (decd); Saxon v Elders Trustee and Executor Co Ltd (1975) 12 SASR 110 at 114-115 per Hogarth J; Re Hokin [1959] VR 711 at 712; [1959] ALR 1291 per OBryan J; Re Richardson (decd) (1920) SALR 24 at 45 per Poole J; Langtry v Campbell (unreported, SC(NSW), Powell J, No 3252/1988, 7 March 1991, BC9102264); Re Norris [1953] Tas SR 32 (need is not limited to immediate need). 7 Horne v Horne (unreported, SC(NSW), Kearney J, No 1672 of 1983, 21 December 1988, BC8801183). 8 Bosch v Perpetual Trustee Co Ltd (1938) 38 SR (NSW) 176; [1938] AC 463; [1938] 2 All ER 14; Wentworth v Wentworth (unreported, SC(NSW), Bryson J, No 3748/1989, 14 June 1991, BC9101896) at 23-4 (reversed on another point Wentworth v Wentworth (unreported, CA(NSW), Samuels AP, Priestley JA, Handley JA, No 40370 of 1991, 3 March 1992, BC9202033)); Hawkins v Prestage [1989] 1 WAR 37 at 45-7 per Nicholson J; Green v Ryterski (1981) 7 Fam LR 834, SC(NSW); Re Bowcock (decd) [1968] 2 NSWR 700; Re Buckland (decd) [1966] VR 404. The paragraph below is current to 16 May 2012
[395-6710] Needs and dependence on others Both dependence on others and dependence on the State are considered relevant as aspects of the means of the applicant, but neither will preclude the jurisdiction of the court to make a family provision order in appropriate circumstances.1 An applicants dependence on the State through entitlement to social security benefits may arise
both at the jurisdictional stage of assessing the adequacy of proper provision for the applicant,2 and at the discretionary stage of framing an order. An entitlement to social security must not be regarded as a substitute for the obligation of the deceased as considered under the family provision legislation.3 The court is concerned to assess whether the applicant has received proper provision in his or her own right in the light of all the circumstances of the case.4 Dependence on others may arise where an applicant child is dependent on his or her spouse,5 and where the spouse of the deceased (or former spouse, where eligible under the relevant legislation)6 has remarried, or entered into a de facto relationship by the time of the application for provision.7 The court also takes into account changing community standards,8 which includes recognition of the independence of women, both as daughters and as widows. It is necessary for a married applicant to adduce evidence of his or her spouses financial position.9 However, the extent to which the independent needs can be satisfied in the light of proper provision for the applicant will depend largely on the size of the estate and any competing claims upon the estate.10
Notes 1 Re Bodman [1972] Qd R 281 at 284 per Hoare J; Re Harrison (decd); Thomson v Harrison [1962] NZLR 6 at 16 per North J. As to dependants see also [395-6595]. 2 At least where the receipt of such benefits is reasonably foreseeable by the deceased: Re Beard [1963] Qd R 90. In New South Wales, reasonable foreseeability is no longer a relevant criterion in the application of the jurisdictional question: see [395-6695]. 3 Re Pope (decd); Pope v Public Trustee (1975) 11 SASR 571 at 574 per Bray CJ; Re Hunter [1940] GLR 100; Shah v Perpetual Trustee Co (1981) 7 Fam LR 97; Parker v Public Trustee (unreported, SC(NSW), Young J, No 4567/87, 31 May 1988, BC8801885); Re Lawford [1954] NZLR 1142. However, see Hackett v Public Trustee for the Australian Capital Territory (1997) 138 FLR 323; BC9701642 (pension should not be seen as a substitute for the obligation on the deceased to maintain the applicant, though it is a fact to be taken into account). 4 See, for example, Singer v Berghouse (No 2) (1994) 181 CLR 201 at 208; 123 ALR 481; 68 ALJR 653; BC9404642; Birrell v Birrell [2000] ACTSC 9; BC200000352. 5 Re Harrison (decd); Thomson v Harrison [1962] NZLR 6. 6 See [395-6760]-[395-6780]. 7 Re Z (decd) [1979] 2 NZLR 495. 8 See [395-6700]. 9 Kelehear v Smith (unreported, CA(NSW), Kirby P, Handley, Meagher JJA, No 497/1988, 4 October 1990, BC9001925) at 16 per Handley JA (failure of the applicant daughter to adduce such evidence criticised, referring to Blore v Lang (1960) 104 CLR 124 at 129 per Dixon CJ, at 135 per Fullagar and Menzies JJ). 10 See [395-6705], [395-6755]. The paragraph below is current to 16 May 2012
[395-6715] Needs and support of others The assumption of responsibility for others may be relevant as an aspect of the applicants own needs in relation to the question of assessment of the propriety of provision for the applicant.1 For example, the fact that the applicant has dependent children is relevant to the assessment of whether the applicant has been left without proper provision.2 The cost of private school fees for dependent children may be considered an aspect of the applicants needs, especially where the deceased would have regarded such expenditure as reasonable and proper in the light of the educational background of the applicant or encouragement provided by the deceased.3 Reasonable expenditure on school fees is viewed as an aspect of the standard of living of the applicants family.4 Where the applicant has a dependent spouse this is also relevant as an aspect of the applicants needs.5 In some cases the courts have been prepared to consider the dependency of others on the applicant where the burden was not a legal one.6 The size of the estate is relevant to the question of whether such expenditure is a need that can properly be considered.7 Notes 1 Bondelmonte v Blanckensee [1989] WAR 305 at 311 per Malcolm CJ, at 318 per Wallace J, at 320 per Nicholson J (applicant supporting mother). 2 Goodman v Windeyer (1980) 144 CLR 490 at 498; 31 ALR 23; 54 ALJR 470; BC8000095 per Gibbs J; Cooper v Dungan (1976) 9 ALR 93; 50 ALJR 539 at 540 per Gibbs J; Re Worms (decd); Worms v Campbell [1953] NZLR 924 at 941-2 per Stanton and Hay JJ; Re McCaffrey (decd); Hay v Elders Trustee and Executor Co Ltd (1982) 29 SASR 582 at 587 per Cox J; Re McNamara (decd) (1938) 55 WN (NSW) 180 at 181 per Jordan CJ; Re Hatte [1943] St R Qd 1 at 23 per EA Douglas J; Bondelmonte v Blanckensee [1989] WAR 305 at 311 per Malcolm CJ, at 317-8 per Wallace J, at 319 per Nicholson J. 3 Cooper v Dungan (1976) 9 ALR 93; 50 ALJR 539; Re McCaffrey (decd); Hay v Elders Trustee and Executor Co Ltd (1982) 29 SASR 582; Bowyer v Wood (2007) 99 SASR 190; 250 LSJS 433; [2007] SASC 327; BC200707701. 4 Re McCaffrey (decd); Hay v Elders Trustee and Executor Co Ltd (1982) 29 SASR 582; Howarth v Reed (unreported, SC(NSW), Powell J, 4431 of 1988, No 4432 of 1988, 15 April 1991, BC9102110). 5 See, for example, Estate of Lehfeldt (unreported, SC(QLD), Weld M, No 454 of 1985, 20 March 1986) (applicants wife dependent on applicant). 6 Kleinig v Neal (No 2) [1981] 2 NSWLR 532; (1980) 8 Fam LR 392 (applicant son had assumed responsibility for caring for his mother, the former wife of the deceased); Bondelmonte v Blanckensee [1989] WAR 305 at 311 per Malcolm CJ, at 318 per Wallace J, at 320 per Nicholson J (applicant supporting mother). Compare Re Buckland (decd) [1966] VR 404 at 411-12 per Adam J (applicant daughter assumed responsibility for supporting the former wife of the deceased, the applicants mother). 7 As to the relevance of the size of the estate see [395-6705]. The paragraph below is current to 16 May 2012
[395-6720] Applicants conduct The manner in which the applicant has conducted himself or herself in relation to the testator is relevant in the assessment of the propriety of provision.1 A broad approach to a consideration of conduct is warranted, both at the jurisdictional and the discretionary stage, while the focus of the legislation is upon the moral obligations of the deceased.2 Meritorious conduct is to be distinguished from disentitling conduct, which is a specific basis for refusing to make an order in favour of an applicant in all jurisdictions except New South Wales.3 In New South Wales, this is an aspect of the discretionary task.4 However, it has been consistently recognised that the extent of the moral claim of an applicant may be affected by conduct which falls short of disentitling conduct.5
In New South Wales, the court is expressly authorised, when exercising its discretion to give an order under the legislation, to take into account contributions made by the eligible person whether of a financial nature or not.6
The conduct of the applicant may comprise assisting in the building up of the assets of the estate and performing personal services to the deceased.7 Assistance in building up the assets of the estate may involve assistance in the parents business at the encouragement of the parent and in the promise or expectation of inheriting on the parents death.8 Personal services to the deceased may involve looking after the testator. The court is disinclined to take such services into account.9 Although for a time courts showed a much greater willingness to acknowledge the relevance of good conduct towards the deceased in relation to the moral duty of the deceased, even where there has been no direct reflection of this in the assets of the estate,10 a recent series of New South Wales decisions has reversed this trend.11
Notes 1 Goodman v Windeyer (1980) 144 CLR 490 at 497; 31 ALR 23; 54 ALJR 470; BC8000095 per Gibbs J; Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 510; [1956] ALR 739; (1956) 30 ALJ 231 per Dixon CJ; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; 23 ALR 321; 53 ALJR 249 at 254 per Gibbs J; Blore v Lang (1960) 104 CLR 124 at 129 per Dixon CJ; E v E (1915) 34 NZLR 785 (discussed in Re Worms (decd); Worms v Campbell [1953] NZLR 924 at 935 per Fair J); Re McElroy [1940] VLR 445; [1940] ALR 356 at 447 per Lowe J; Re Bongers [1969] 2 NSWR 93 at 95 per Jacobs JA, CA(NSW). 2 See [395-6685]. 3 (ACT) Family Provision Act 1969 s 8(3) (NT) Family Provision Act 1970 s 8(3)
(QLD) Succession Act 1981 s 41(2)(c)
(SA) Inheritance (Family Provision) Act 1972 s 7(3)
(TAS) Testators Family Maintenance Act 1912 s 8(1)
(WA) Inheritance (Family and Dependants Provision) Act 1972 s 6(3). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972. See [395-6910], [395-6915] (disentitling conduct).
4 (NSW) Succession Act 2006 s 60(2)(m). 5 Re Sinnott (decd) [1948] VLR 279 at 281; [1948] 2 ALR 309 per Fullager J; Re Cooper (decd); Cooper v Cooper [1970] 2 NSWR 182 at 186 per Jacobs JA; Re Mercer (decd) [1977] 1 NZLR 469 at 472 per White J. The jurisdiction under family provision legislation also extends to assisting the lame ducks amongst children: Re Hatte [1943] St R Qd 1 at 26 per Philp J; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 139; 23 ALR 321; 53 ALJR 249 per Barwick CJ. 6 (NSW) Succession Act 2006 s 60(2)(h) (discretion). 7 For disentitling conduct see [395-6910], [395-6915]. 8 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 510 per Dixon CJ, at 523 per Fullagar J; [1956] ALR 739; (1956) 30 ALJ 231; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; (1980) 8 Fam LR 392; In the Estate of Brooks (decd); Brooks v Public Trustee (1979) 22 SASR 398 at 402; 5 Fam LR 528 per Jacobs J; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; 23 ALR 321; 53 ALJR 249. There are many such examples in relation to farming estates, where one or more of the deceaseds children have worked on the farm for all or most of their lives. See In the Will of Hughes [1930] St R Qd 329; Re Hokin [1959] VR 711; [1959] ALR 1291; Re Bodman [1972] Qd R 281 at 286 per Hoare J. See also [395-6725]. 9 Blore v Lang (1960) 104 CLR 124 at 134 per Fullagar and Menzies JJ; Re Young (decd); Young v Young [1965] NZLR 294 at 299 per North P and Turner J. 10 Goodman v Windeyer (1980) 144 CLR 490 at 498; 31 ALR 23; 54 ALJR 470; BC8000095 per Gibbs J. 11 Clark v Public Trustee [2006] NSWSC 817; BC200606367; Skyllas v Public Trustee [2006] NSWSC 606; BC200604524; Whitmore v Poole [2006] NSWSC 85; BC200600772. The paragraph below is current to 16 May 2012
[395-6725] Expectations of the applicant In assessing the propriety of provision, the expectation of an applicant to inherit property from the deceased is relevant only in the sense that if certain expectations have been induced by the testator, the assessment of the adequacy of provision for the applicant may be affected by that inducement, particularly where the applicant responded to that inducement by his or her own conduct.1 Notes 1 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 523; [1956] ALR 739; (1956) 30 ALJ 231 per Fullagar J; Mudford v Mudford [1947] NZLR 837 at 840 per Smith J, CA; In the Will of Hughes [1930] St R Qd 329; Anasson v Phillips (unreported, SC(NSW), Young J, No 2900 of 1985, 4 March 1988); McCallum v McCallum (unreported, SC(NSW), Young J, Eq 4601 of 1983, 2 May 1986, BC8601061). In some cases there may be an argument made of proprietary estoppel: see estoppel [190-295], [190-300]. The paragraph below is current to 16 May 2012
[395-6730] The deceaseds assessment The issue for the court is what the wise and just spouse or parent would have done in all the circumstances of the case, not what the deceased assessed would be a proper provision.1 The issue of the admissibility and relevance of the deceaseds statements as to the provision that has or has not been made for an applicant may arise both at the jurisdictional stage and the discretionary stage. At the jurisdictional stage the issue involves the question of the testators moral obligation; at the discretionary stage the issue arises with regard to allegations of disentitling conduct.2 Where the testator has intended to make greater provision for an applicant but through oversight or death has not been able to do so, the court may consider the testators wishes.3 Where the deceaseds statements concern matters of exclusion from benefit, those statements may be considered to some extent.4 The deceaseds statements about a particular matter may be relevant to explaining the deceaseds actions but not as evidence of the fact that certain things occurred.5 If certain allegations are proved against an applicant this may both affect the moral obligation to the applicant and be relevant as possible disentitling conduct.6
Whether the deceaseds statements are admissible on both grounds and, if so, the weight to be given to them depends on both general law and statute. As a matter of general law, evidence of the deceaseds reasons for not providing for, or only leaving limited provision for an applicant, including allegations as to his or her conduct and character, will be admitted but may only be used for limited purposes.7 There are express statutory provisions which permit the receipt of the deceaseds statements in the Australian Capital Territory, the Northern Territory, New South Wales and
Tasmania.8 The general evidence legislation in each jurisdiction may also permit the admission of statements in certain circumstances in addition to specific provision in family provision legislation for the admission of statements by the deceased.9 The legislation which permits statements to be admitted also includes provisions as to the weight to be given to them. In the Australian Capital Territory, the Northern Territory and New South Wales, legislation provides that in determining what weight, if any, ought to be attached to the statement, the court must have regard to all the circumstances from which any inference may reasonably be drawn concerning the accuracy of the matters referred to in the statement.10
Notes 1 Bosch v Perpetual Trustee Co Ltd (1938) 38 SR (NSW) 176; [1938] AC 463; [1938] 2 All ER 14. 2 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; 23 ALR 321; 53 ALJR 249. See [395-6910], [395-6915]. 3 Bosch v Perpetual Trustee Co Ltd (1938) 38 SR (NSW) 176; [1938] AC 463; [1938] 2 All ER 14. 4 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; 23 ALR 321; 53 ALJR 249. See also Powell v Monteath [2006] 2 Qd R 473; [2006] QSC 024; BC200600783. 5 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; 23 ALR 321; 53 ALJR 249. See also Re Estate of Smith [2004] NTSC 15; BC200401578. 6 See [395-6910], [395-6915]. 7 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; 23 ALR 321; 53 ALJR 249 (testators statements admissible only to provide some evidence of the reason why the testator has disposed of her estate in a particular way; not admissible to prove that what the testator said or believed was true); Re Jones (1921) 21 SR (NSW) 693 at 695 per Harvey J; Re Smith [1928] SASR 30 at 34 per Richards J; In the Will of Jolliffe [1929] St R Qd 189 at 193 per Harvey CJ, Henchman and Gresson JJ; Re Hall (decd) (1930) 30 SR (NSW) 165; Re Green (decd); Zukerman v Public Trustee [1951] NZLR 135 at 140-1; [1951] GLR 50; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 24; [1962] ALR 775; (1962) 36 ALJR 1 per Taylor J. 8 (ACT) Family Provision Act 1969 s 22 (NT) Family Provision Act 1970 s 22
(NSW) Succession Act 2006 s 100
(TAS) Testators Family Maintenance Act 1912 s 8A.
In New South Wales, it has been specifically considered and decided that the relevant statutory provision only extends to statements of the deceased whose estate is the one in question, not statements by any deceased person: Purnell v Moon (1991) 22 NSWLR 499. See also Elwin v Dunston (unreported, SC(NSW), Hodgson J, No 2531 of 1985, 14 November 1986, BC8600540) (concerning (NSW) Family Provision Act 1982 (repealed) s 32(5) as then in force. See now (NSW)
Succession Act 2006 s 100).
9 As to the admission of statements to evidence see evidence [195-95]-[195-135], [195-1290][195-1400]. 10 (ACT) Family Provision Act 1969 s 22(3) (NT) Family Provision Act 1970 s 22(3)
(NSW) Succession Act 2006 s 100(8) (a court shall have regard to all the circumstances from which any inference may reasonably be drawn concerning the accuracy of the matters referred to in the statement including how recent or otherwise, at the time when the deceased person made the statement, was any relevant matter dealt with in the statement and the presence or absence of any incentive for the deceased person to conceal or misrepresent any relevant matter in the statement).
[395-6735] Extent of contact with the deceased The fact that there was limited contact between the applicant and the deceased is relevant in assessing whether the deceased owed a moral duty to provide for the applicant.1 The court must place the lack of contact in the context of all the circumstances of the case.2 The extent of contact between the parties is an aspect of their conduct in relation to each other, for example, the absence or loss of contact may be because: (1) the deceased avoided contact with the applicant3 or completely excluded the applicant from being a part of the life of the deceased;4 (2) contact was discontinued by the applicant because of the difficult personality of the deceased;5 (3) the applicant as an infant was removed from the same household as the deceased on the breakdown of the relationship between his or her parents;6 (4) the applicant deeply resented his or her parents remarriage or subsequent relationship;7 or (5) there were religious differences between the deceased and the applicant.8 The question is whether, in all the circumstances, the absence of contact is to be regarded as a failure of filial duty,9 and this is assessed in the light of competing claims and the size of the
estate.10
The significance of the extent of contact between the deceased and the applicant must also be considered in the context of the particular category of applicant. For example, the significance of the degree of contact in relation to the assessment of the moral obligation of the deceased to his or her grandchildren may be considered differently from an assessment of the moral obligation to his or her children.11
It is also the case that the more exiguous and distant the familial relationship between the deceased and a claimant, the greater must be the need of the claimant for maintenance or support if it is to give rise to the obligation.12
Notes 1 Reid v Austin (unreported, CA(NSW), Hope, Samuels and Priestly JJA, CA 274 of 1984, 2 September 1985, BC8500563). 2 Reid v Austin (unreported, CA(NSW), Hope, Samuels and Priestly JJA, CA 274 of 1984, 2 September 1985, BC8500563); Hoadley v Hoadley (unreported, SC(NSW), Young J, Eq 2222 of 1985, 17 February 1987, BC8701583); Howarth v Reed (unreported, SC(NSW), Powell J, No 4431 of 1988, No 4432 of 1988, 15 April 1991, BC9102110); Stott v Cook (1960) 33 ALJR 447; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; 23 ALR 321; 53 ALJR 249; Gorton v Parks (1989) 17 NSWLR 1. 3 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] ALR 775; (1962) 36 ALJR 1 (applicant son disregarded the father and the father disregarded the son, even denying his paternity); Gorton v Parks (1989) 17 NSWLR 1. 4 Farquharson v Grace [2005] NSWSC 87; BC200500376. 5 Gorton v Parks (1989) 17 NSWLR 1. 6 Re Gear (decd) [1964] Qd R 528; Re Buffalora (decd); Buffalora v Public Trustee [1956] NZLR 1017. 7 Howarth v Reed (unreported, SC(NSW), Powell J, No 4431 of 1988, No 4432 of 1988, 15 April 1991, BC9102110); Re Frigo (unreported, SC(QLD), Dowsett J, No 481 of 1985, 5 February 1988) (attempt to supplant adoptive mothers position (on her death) by an outsider). 8 Estate of Pridgeon (unreported, SC(VIC), Crockett J, No 806 of 1985, 23 May 1986). 9 Gorton v Parks (1989) 17 NSWLR 1 at 5 per Bryson J. 10 Hoadley v Hoadley (unreported, SC(NSW), Young J, 2222 of 1985, 17 February 1987, BC8701583). 11 Estate of Puckridge (decd) (1978) 20 SASR 72 (applicant grandchildren had little contact with their deceased grandfather because of a breakdown in relations between the deceased and his daughter). 12 Freeman v Jaques [2006] 1 Qd R 318; [2005] QCA 423; BC200509863 (claims by adult stepchild against the estate of the deceased stepmother).
[395-6740] Benefits or support received from deceased The testator cannot reduce his or her standard of testamentary obligations and duties to his or her own family upon death, simply by failing to provide adequately for them during his or her lifetime.1 In deciding what is an adequate provision for the applicant, the court will take into consideration any support or benefits received by the applicant from the deceased during his or her lifetime,2 or benefits which were conferred indirectly.3 Support, property or benefits received by the applicant from a source totally independent of and unconnected with the deceased are also taken into consideration by the court when considering an order for relief.4 When the court apportions a relief order amongst the beneficiaries it will consider the economic means of the beneficiaries in the light of any benefits given to them by the deceased during his or her lifetime.5 In New South Wales, the legislation specifies that provisions made in favour of the applicant by the deceased during his or her lifetime may be taken into account by the court for the purpose of determining whether to make a family provision order and the nature of any such order.6
Notes 1 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 509; [1956] ALR 739; (1956) 30 ALJ 231 per Dixon CJ; Re Saxon (decd); Saxon v Elders Trustee and Executor Co Ltd (1975) 12 SASR 110 at 114-15 per Hogarth J; Re Richardson (decd) (1920) SALR 24 at 46 per Poole J; Re Hokin [1959] VR 711 at 712; [1959] ALR 1291 per OBryan J; Re Borthwick (decd); Borthwick v Beauvais [1949] Ch 395 at 400; [1949] 1 All ER 472 per Harman J. 2 In the Estate of Guthrie (decd); Guthrie v Crane & Elders Trustee & Executor Co Ltd (1983) 32 SASR 86 at 96 per Bollen J; Re Harris (1918) 18 SR (NSW) 303; 35 WN (NSW) 122; Re Bunning (decd); Bunning v Salmon [1984] 1 Ch 480; [1984] 3 All ER 1; [1984] 3 WLR 265; Kay v Archbold [2008] NSWSC 254; BC200802045. 3 Re Baker (decd); Baker v Public Trustee [1962] NZLR 758 (indirect gift was a benefit to the children of the applicant). 4 Re Wright [1966] Tas SR (NC 1) 287; Re Short (decd); Short v Guardian Trust and Executors Co of New Zealand Ltd [1954] NZLR 1149. 5 Re Paulin [1950] VLR 462; [1950] ALR 503. 6 (NSW) Succession Act 2006 s 60(2)(i). The paragraph below is current to 16 May 2012
[395-6745] Effect of pension on claim A widow or widowers pension entitlement, whether or not existing at the time of the application, must be taken into account when making an order for relief.1 Notes 1 Re Barrot [1953] VLR 308 at 313; [1953] ALR 634 per Sholl J; Re Pope (decd); Pope v Public Trustee (1975) 11 SASR 571 at 574 per Bray CJ; Chapman v Elders Trustee & Executor Co Ltd [1971] SASR 63; Re Beard [1963] Qd R 90. The paragraph below is current to 16 May 2012
[395-6750] Rules of construction A potential beneficiary who considers that the executor1 or administrator2 of the will has incorrectly interpreted the will may pursue a family provision application.3 The court may: (1) construe a will and at the same time consider a family provision application;4 or (2) simply consider the construction of the will without making a decision.5 All parties must consent to the court construing the will and hearing the family provision application in the same proceedings.6 Notes 1 As to executors see [395-4000]-[395-5740]. 2 As to administrators see [395-5995]-[395-6021]. 3 Re Gilpin (decd) (No 2) [1946] VLR 417; [1946] ALR 487. 4 Re Gilpin (decd) (No 2) [1946] VLR 417; [1946] ALR 487. 5 Re Godwin [1948] QWN 1. 6 In the Estate of Langley (decd); Langley v Langley [1974] 1 NSWLR 46. Compare Re Davis (decd); Davis v McEachern [1952] VLR 517; [1952] ALR 987 (construction question should be dealt with in separate proceedings). As to avoidance of multiplicity of proceedings see practice and procedure [325-1420]. The paragraph below is current to 16 May 2012
[395-6755] Competing claims The court will examine the competing claims of those persons who are not, under the legislation, eligible to apply,1 and take into consideration the moral duty owed by the testator to individuals other than the applicants who are eligible to apply.2 Where the estate is of an insignificant size, the court will attempt to divide justly what little there is between the various bona fide claimants.3 If the estate is left to total strangers or to charities of dubious worth, the court will not necessarily interfere with the bequest and in fact the applicant may: (1) receive nothing;4 (2) receive only a small share of the estate;5 (3) receive one half;6 or (4) be granted an order for the entire estate.7 Notes 1 As to persons eligible to apply see [395-6555]. 2 Re Sutton [1980] 2 NZLR 50; Re E (decd); E v E [1966] 2 All ER 44; [1966] 1 WLR 709; Re Joslin; Joslin v Murch [1941] Ch 200; [1941] 1 All ER 302; Worthington v Ongley (1910) 29 NZLR 1167. 3 Re Allen (decd); Allen v Manchester [1922] NZLR 218; [1921] GLR 613 at 614 per Salmond J. 4 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] ALR 775; (1962) 36 ALJR 1. Compare Gorton v Parks (1989) 17 NSWLR 1. 5 Parente v Parente (1982) 29 SASR 310; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; (1980) 8 Fam LR 392; Re Buckland (decd) (No 2) [1967] VR 3; Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494; [1956] ALR 739; (1956) 30 ALJ 231; Re Barron [1955] QWN 82. 6 Bondelmonte v Blanckensee [1989] WAR 305; Re Rowe [1964] QWN 46. 7 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; 23 ALR 321; 53 ALJR 249.
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(C) Particular Applicants (I) Spouses The paragraph below is current to 16 May 2012 For new cases see ACL Reporter [395-6760] General approach As a general proposition, 1 it has been suggested that widows have the highest moral claim, or the paramount claim, in relation to the assessment of the propriety of provision under family provision legislation,2 and that widowhood itself raises a moral claim.3 However, such a proposition is subject to the general principle regarding changing community attitudes.4 Specific factors which have been taken into account by the court include: (1) the length of the relationship;5 (2)
the raising of children;6 (3) the ability of the spouse to support himself or herself from his or her own resources;7 and (4) the presence of competing claims.8 The principles applicable to widowers are the same as for widows in the legislation.9 Statements that the claim of a widow is higher than that of a widower10 should be regarded as a conclusion on the facts, not as a statement of principle.11 The claims of widows and widowers have been given priority over the claims of adult children.12 The principles applicable to widows and widowers apply also to de facto widows and widowers.13 Notes 1 Re Crowe (decd) (1935) 35 SR (NSW) 547 at 549; 52 WN (NSW) 187 per Long Innes CJ (Eq); Lorimer v Lorimer (unreported, SC(NSW), Powell J, No 2367 of 1988, 23 June 1989, BC8902028).2 Re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 964; 12 GLR 753 per Chapman J (affirmed Allardice v Allardice [1911] AC 730 ); Luciano v Rosenblum (1985) 2 NSWLR 65 ; Howarth v Reed (unreported, SC(NSW), Powell J, No 4431 of 1988, No 4432 of 1988, 15 April, 1991, BC9102110); Easterbrook v Young (1977) 136 CLR 308; 13 ALR 351; 51 ALJR 456 at 462 per Barwick CJ, Mason and Murphy JJ; Re Crowe (decd) (1935) 35 SR (NSW) 547 at 549; 52 WN (NSW) 187 per Long Innes CJ; Re Newell (decd) (1932) 49 WN (NSW) 181 at 182 per Long Innes J.3 Re Ruxton; Ruxton v Trustees Executors and Agency Co Ltd [1946] VLR 334 at 336 per Fullager J; Re Jennings (decd); Jennings v Kerr [1940] GLR 546 at 547 per Fair J; Re Scott; Scott v Union Trustee Co of Australia Ltd [1950] VLR 102 at 105; [1950] ALR 183 per Herring CJ; Re Clissold (decd) and the Testators Family Maintenance Act [1970] 2 NSWR 619 .4 Samsley v Barnes (unreported, CA(NSW), Kirby P, Samuels and Meagher JJA, CA 40170 of 1989, 7 December 1990, BC9001675). See, for example, Serle v Walsh [2006] QSC 377; BC200610379 ; Bladwell v Davis [2004] NSWCA 170; BC200403444 . As to current community standards see [395-6700].5 Churton v Christian (1988) 13 NSWLR 241; 12 Fam LR 386 , CA(NSW); Re Cutts (decd) [1969] VR 254 ; Re Adams [1967] VR 881 ; Neich v Bowd (1981) 7 Fam LR 102 at 104 per Wootten J. For marriages of short duration see Re Johnstone; Johnstone v Perpetual Trustees Executors and Agency Co of Tasmania Ltd [1962] Tas SR 356 (20 days); Delacour v Waddington (1953) 89 CLR 117; [1953] ALR 913; (1953) 27 ALJ 485 (two years); Re Jennings (decd); Jennings v Kerr [1940] GLR 546 (13 months, with four months separation); Borthwick v Perpetual Trustee Co Ltd (1958) SR (NSW) 151; 76 WN (NSW) 694 (five months); Re Blood [1983] 1 Qd R 104 at 106 per Williams J.6 Goodman v Windeyer (1980) 144 CLR 490; 31 ALR 23; 54 ALJR 470; BC8000095 .7 Re Cutts (decd) [1969] VR 254 at 258 per McInerney J; Shah v Perpetual Trustee Co (1981) 7 Fam LR 97 at 99 per Rath J.8 Re Gear (decd) [1964] Qd R 528 (widows claim compared with the claim of the sole beneficiary of the estate, the deceaseds de facto wife of many years); Re Joslin; Joslin v Murch [1941] Ch 200; [1941] 1 All ER 302 ; Re Raybould (decd); Raybould v Bale [1963] Qd R 188; [1961] QWN 61 ; Re Crowe (decd) (1935) 35 SR (NSW) 547 at 549; 52 WN (NSW) 187 per Long Innes CJ (Eq) (widows claim compared with childrens claim); In the Will of Gilbert (decd) (1946) 46 SR (NSW) 318 at 322; 63 WN (NSW) 176 per Jordan CJ, SC(NSW), Full Court; Re Traeger (decd) [1949] SASR 180 at 184 per Mayo J (widows claim compared with childrens claim); Re Bevan (decd); Wehipeihana v Guardian Trust and Executors Co of New Zealand Ltd [1954] NZLR 1108 (widows claim compared with claims of illegitimate children).9 For examples of claims by widowers see Re Schroeder [1972] QWN 10 ; Re Brown (decd) [1972] VR 36 ; Colquhoun v Public Trustee (1912) 31 NZLR 1139; 14 GLR 432 ; McGrath v Queensland Trustees Ltd [1919] St R Qd 169; [1919] QWN 34 ; Bailey v Public Trustee [1960] NZLR 741 ; Re Wheare [1950]
SASR 61 .10 Re McElroy [1940] VLR 445 at 447; [1940] ALR 356 per Lowe J; Re Williams (decd); Williams v Cotton [1953] NZLR 151 at 153 per Cooke J.11 Re Brown (decd) [1972] VR 36 at 42 per Norris AJ.12 OLoughlin v Low [2002] NSWSC 222; BC200201121 .13 As to eligibility as a de facto spouse see [395-6570], [395-6575]. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter [395-6765] Second or subsequent spouse There is no difference in the application of general principles between the claim of a first or second spouse.1 The court must consider the deceaseds moral obligation to provide for the second spouse in the light of all of the surrounding circumstances of the particular case.2 As the duration of the marriage may be relevant where the second or subsequent marriage is of short duration the moral claim of that spouse may not be as strong as in the case of a marriage of long duration.3 The competing claim of children of an earlier marriage may be significant.4 In relation to an application of a second or subsequent spouse, the courts will take into account the provision of personal services to the deceased5 and any assistance in the building up or conservation of the assets of the estate.6 Notes 1 Re Bradbury [1947] St R Qd 171 at 173 per Stanley J. The position of a second spouse of the deceased was at one time thought to be weaker than that of a first spouse: Cunningham v Cunningham [1936] GLR 419 . As to the position of a former spouse when making a claim see [395-6565].2 Re Bradbury [1947] St R Qd 171 at 173 per Stanley J.3 See, for example, Cunningham v Cunningham [1936] GLR 419 at 420 per Fair J; Howarth v Reed (unreported, SC(NSW), Powell J, No 4431 of 1988, No 4432 of 1988, 15 April 1991, BC9102110) (second marriage of long duration); Lorimer v Lorimer (unreported, SC(NSW), Powell J, No 2367 of 1988, 23 June 1989, BC8902028) (third marriage of eight years, with numerous periods of separation).4 Goodman v Windeyer (1980) 144 CLR 490; 31 ALR 23; 54 ALJR 470; BC8000095 ; White v Barron (1980) 144 CLR 431; 30 ALR 51; 54 ALJR 333; BC8000077 ; Re Bradbury [1947] St R Qd 171 ; In the Will of Gilbert (decd) (1946) 46 SR (NSW) 318 at 322; 63 WN (NSW) 176 per Jordan CJ; Ahearn v Ahearn [1917] St R Qd 167; [1917] QWN 24 ; Dillon v Public Trustee of New Zealand [1941] AC 294; [1941] 2 All ER 284; (1941) 165 LT 357 , PC.5 Goodman v Windeyer (1980) 144 CLR 490 at 497-8; 31 ALR 23; 54 ALJR 470; BC8000095 per Gibbs J; Shah v Perpetual Trustee Co (1981) 7 Fam LR 97 at 99 per Rath J; Re Calder (decd); Calder v Public Trustee [1950] GLR 465 . See also [395-6720].6 Ahearn v Ahearn [1917] St R Qd 167; [1917] QWN 24 ; Goodman v Windeyer (1980) 144 CLR 490 at 497-8; 31 ALR 23; 54 ALJR 470; BC8000095 per Gibbs J; Shah v Perpetual Trustee Co (1981) 7 Fam LR 97 at 99 per Rath J. See also [395-6720]. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter [395-6770] Income provisions Two aspects of income provisions for spouses have been identified as relevant in the assessment of propriety of provision: (1) the failure to take into account the effect of inflation; and (2) the termination of income provisions on remarriage. The failure of the testator to take into account the effect of inflation in relation to an annuity may be
considered inadequate provision for the proper maintenance of a surviving spouse.1 The surviving spouse should not be expected to use his or her own capital resources to meet this inadequacy, at least where the size of the estate is large enough and competing claims can be adequately accommodated without the spouse having to do so.2 The termination of income provisions on remarriage may now also be considered inadequate provision for the proper maintenance of a surviving spouse.3 Notes 1 Goodman v Windeyer (1980) 144 CLR 490 at 499; 31 ALR 23; 54 ALJR 470; BC8000095 per Gibbs J; Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 508 per Dixon CJ; [1956] ALR 739; (1956) 30 ALJ 231 ; Re Buckland (decd) [1966] VR 404 at 415-16 per Adam J; White v Barron (1980) 144 CLR 431 at 441 per Mason J, at 457-8 per Wilson J, at 438 per Stephen J concurring; 30 ALR 51; 54 ALJR 333; BC8000077 .2 White v Barron (1980) 144 CLR 431 at 457; 30 ALR 51; 54 ALJR 333; BC8000077 per Wilson J; Goodman v Windeyer (1980) 144 CLR 490 at 500; 31 ALR 23; 54 ALJR 470; BC8000095 per Gibbs J. As to competing claims see [395-6755].3 White v Barron (1980) 144 CLR 431 at 440441 per Stephen J, at 452-3 per Aickin J, at 444 per Mason J; 30 ALR 51; 54 ALJR 333; BC8000077 . Compare Worladge v Doddridge (1957) 97 CLR 1 at 10 per Williams and Fullagar JJ, at 20 per Kitto J; [1957] ALR 691 . The paragraph below is current to 16 May 2012 For new cases see ACL Reporter [395-6775] Life estates The provision of a life estate 1 in a particular property may be considered inadequate provision for the proper maintenance of a surviving spouse.2 Notes 1 Parker v Public Trustee (unreported, SC(NSW), Young J, No 4567 of 1977, 31 May 1988, BC8801885).2 Banks v Hourigan (unreported, SC(NSW), Waddell CJ in Eq, No 4892 of 1989, 2 March 1989, BC8902470). See also Robb v Hunter [2003] NSWSC 946; BC200306268 ; Milillo v Konnecke [2009] NSWCA 109; BC200903916 .
Source
(III) Children The paragraph below is current to 16 May 2012 For new cases see ACL Reporter [395-6785] Introduction Particular questions have arisen for consideration in this category in addition to the general matters relevant to the assessment of the claim of an applicant. For example: (1) whether there is any different treatment of applicant children if they are adults, rather than minors;1 (2) if they are daughters rather than sons;2 (3) if daughters3 should be treated differently depending upon whether they are married or unmarried; and (4) whether adult able-bodied sons should be considered as being in a special, and less preferential category.4 Notes 1 As to minors see [395-6790].2 As to adult sons see [395-6795].3 As to adult daughters see [395-6800].4 As to adult sons see [395-6795]. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter [395-6790] Minors Minors have a prima facie claim to be maintained and supported from the estate of the deceased parent.1 In assessing the needs of infant children in a case where the estate is large, a wide range of contingencies can be considered, including the wishes of the surviving parent in respect of education,2 and the possibility of a financial downturn affecting the children.3 Notes 1 In the Estate of Bridges (decd) (1974) 8 SASR 268 ; Re Wren (decd) [1970] VR 449 ; Cope v Keene (1968) 118 CLR 1 sub nom Re Keene (decd); Cope v Keene [1969] ALR 57; (1968) 42 ALJR 169 ; Re Liston (decd) [1957] VR 50 at 52 per Lowe J ; Re H (decd) [1952] QWN 8 ; Re Sinnott (decd) [1948] VLR 279 at 280; [1948] 2 ALR 309 per Fullager J; Bosch v Perpetual Trustee Co Ltd (1938) 38 SR (NSW) 176; [1938] AC 463; [1938] 2 All ER 14 ; In the Will of Spence [1929] QWN 15 ; Collins v Public Trustee [1927] GLR 390 .2 Bosch v Perpetual Trustee Co Ltd (1938) 38 SR (NSW) 176 at 190; [1938] AC 463 at 481-2; [1938] 2 All ER 14 per Lord Romer (mothers wishes that her infant sons be able to attend Oxford or Cambridge University considered relevant to the assessment of the propriety of provision for the children of the deceased).3 Bosch v Perpetual Trustee Co Ltd (1938) 38 SR (NSW) 176 at 190; [1938] AC 463 at 481-2; [1938] 2 All ER 14 per Lord Romer.
The paragraph below is current to 16 May 2012 For new cases see ACL Reporter [395-6795] Adult sons In approaching the claims of adult able-bodied sons there has been a divergence of approach.1 In New South Wales,2 Queensland,3 and Western Australia, 4 adult sons do not need to establish a special claim in order to establish inadequacy of provision by the deceased. However, in Victoria, there are suggestions that adult sons may need to establish a special claim.5 The latter view reflects the early case law in which sons were expected to be selfreliant.6 Although there are no rigid rules as to what amounts to a special claim,7 circumstances which suggest a special claim include: (1) educational needs;8 (2) physical or mental infirmity;9 (3) inability to obtain employment;10 (4) dependants requiring support;11 (5) financial misfortune;12 and (6) contributions to the testators estate.13 The divergence of views may be more apparent than real as the notion of a special claim will be interpreted broadly and in all cases the claim by an able-bodied self-supporting adult son or daughter must be weighed against the claims of others and the size of the estate.14 It may be that the conclusion in a particular case is that the claim of other applicants is to be rated higher than that of an adult able-bodied son, but not necessarily for this reason but rather simply that this is the conclusion on the facts.15 Notes 1 The source of the diverging views is Re Sinnott (decd) [1948] VLR 279 at 280; [1948] 2 ALR 309 per Fullager J and the consideration of that case in Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; 23 ALR 321; 53 ALJR 249 ; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19-20; [1962] ALR 775; (1962) 36 ALJR 1 per Dixon CJ; Re Fuller (1917) 17 SR (NSW) 348; 34 WN (NSW) 136 ; Re Sherrard (1938) 55 WN (NSW) 38 ; McCosker v McCosker (1957) 97 CLR 566; 31 ALJ 779 ; Re Cooper (decd); Cooper v Cooper [1970] 2 NSWR 182 ; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 139; 23 ALR 321; 53 ALJR 249 per Barwick CJ (dissenting).2 Hunter v Hunter (1987) 8 NSWLR 573 at 578-80 per
Kirby P; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; (1980) 8 Fam LR 392 ; Gorton v Parks (1989) 17 NSWLR 1 at 7 per Bryson J; Samsley v Barnes (unreported, CA(NSW), Kirby P, Samuels and Meagher JJA, CA40170 of 1989, 7 December 1990, BC9001675) at 10 per Kirby P; Goodsell v Wellington [2011] NSWSC 1232; BC201109674 at [111] per Hallen AsJ.3 Re Elwell [1977] Qd R 141 (moral claim).4 Bondelmonte v Blanckensee [1989] WAR 305 at 309 per Malcolm CJ; Hawkins v Prestage [1989] 1 WAR 37 at 45 per Nicholson J. See also Young v Young (unreported, SC(WA), Wallace, Pidgeon & Walsh JJ, No 64 of 1989, 3 April 1990, BC9001397) (rejection of gender of applicant as determinative factor); Triplett v Triplett (unreported, SC(WA), Ipp J, No 2359 of 1987, 16 March 1990, BC9001437).5 Anderson v Teboneras [1990] VR 527 at 538 per Ormiston J; Chellew v National Mutual Trustees Ltd (unreported, SC(VIC), Ormiston J, No 3090 of 1988, 28 June 1989, BC8900622) (both decisions critical of Hunter v Hunter (1987) 8 NSWLR 573 ). Compare McArthur v McArthur (unreported, SC(VIC), McGarvie J, No 1951 of 1985, 5 December 1986, BC8600099). Support for the special claim approach can be seen in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 per Dixon CJ, at 24 per Taylor J; [1962] ALR 775; (1962) 36 ALJR 1 ; Re Fuller (1917) 17 SR (NSW) 348; 34 WN (NSW) 136 ; Re Sherrard (1938) 55 WN (NSW) 38 ; McCosker v McCosker (1957) 97 CLR 566; 31 ALJ 779 ; Re Cooper (decd); Cooper v Cooper [1970] 2 NSWR 182 ; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 139; 23 ALR 321; 53 ALJR 249 per Barwick CJ (dissenting).6 Re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 971; 12 GLR 753 per Stout CJ (affirmed Allardice v Allardice [1911] AC 730 ); Plimmer v Plimmer (1906) 9 GLR 10 ; Edwards; Munt v Findlay (1905) 25 NZLR 488; 8 GLR 197 ; Re Sinnott (decd) [1948] VLR 279 at 280; [1948] 2 ALR 309 per Fullager J.7 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 147; 23 ALR 321 at 333; 53 ALJR 249 at 253 per Gibbs J.8 For example, a university degree: Re Adams [1967] VR 881 at 886-7 per Lush J.9 Re Anderson (1975) 11 SASR 276 ; Re McNamara (decd) (1938) 55 WN (NSW) 180 . See also Nenke v Nunn [1967] WAR 79 (substantial relief given to physically disabled daughter). Compare Mudford v Mudford [1947] NZLR 837 .10 Lean v Tipping (No 2) [1917] GLR 355. See also Hunter v Hunter (1987) 8 NSWLR 573 (although proof of special claim not necessary, applicants prognosis for future work not promising).11 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; 23 ALR 321; 53 ALJR 249 ; Re Hokin [1959] VR 711; [1959] ALR 1291 ; In the Will of Jolliffe [1929] St R Qd 189 ; Bondelmonte v Blanckensee [1989] WAR 305 at 310 per Malcolm CJ; Goodman v Windeyer (1980) 144 CLR 490; 31 ALR 23; 54 ALJR 470 at 474; BC8000095 per Gibbs J.12 Anderson v Teboneras [1990] VR 527 (although proof of special claim not necessary, inexperience in business and financial vulnerability due to recent marriage); Cooper v Dungan (1976) 9 ALR 93; 50 ALJR 539 at 543 per Stephen J (reduction of earning power of spouse due to ill health); Re Bodman [1972] Qd R 281 at 284 per Hoare J (reduction of earning power of spouse due to ill health); Blore v Lang (1960) 104 CLR 124 (economic disaster); Re Salathiel [1971] QWN 18 (future economic misfortune as well as immediate economic needs taken into account).13 Goodman v Windeyer (1980) 144 CLR 490; 31 ALR 23; 54 ALJR 470 at 473; BC8000095 per Gibbs J; McCosker v McCosker (1957) 97 CLR 566; 31 ALJ 779 ; Anderson v Teboneras [1990] VR 527 ; Hawkins v Prestage [1989] 1 WAR 37 at 44 per Nicholson J; Crook v Elders Trustee (1986) 132 LSJS 121; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 542-5; (1980) 8 Fam LR 392 at 410-12 per Holland J; Re Cooper (decd); Cooper v Cooper [1970] 2 NSWR 182 , CA(NSW); Re Rowe [1964] QWN 46 ; Re Hokin [1959] VR 711; [1959] ALR 1291 . An expectancy to receive a share of the testators estate and actions based on it will be a circumstance the court will take into account, where that expectation was encouraged by the testator: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 148; 23 ALR 321; 53 ALJR 249 at 254 per Gibbs J.14 As to competing claims see [395-6755].15 See, for example, McArthur v McArthur (unreported, SC(VIC), McGarvie J, No 1951 of 1985, 5 December 1986, BC8600099). The paragraph below is current to 16 May 2012 For new cases see ACL Reporter
[395-6800] Adult daughters In the early case law, unmarried daughters were regarded as generally having a stronger claim than sons.1 This extended to a divorced daughter who was not receiving any support or maintenance from her former husband.2 Acknowledging changing community standards3 and the role of women, there has been a reassessment of statements of general principle which have favoured unmarried women.4 The early case law also treated married daughters differently from unmarried daughters, unless their husbands were unable to support them.5 Changing community standards have led to an abandonment of a principle of different treatment of applications so that the fact that a married daughter is being adequately supported by her husband does not necessarily preclude her from being granted relief from the deceased estate.6 Notes 1 Re Sinnott (decd) [1948] VLR 279; [1948] 2 ALR 309 .2 Re Taylor [1968] Qd R 385 .3 As to current community standards see [395-6700].4 Samsley v Barnes (unreported, CA(NSW), Kirby P, Samuels and Meagher JJA, CA 40170 of 1989, 7 December 1990, BC9001675); Hunter v Hunter (1987) 8 NSWLR 573 at 579 per Kirby P, CA(NSW); Re Anderson (1975) 11 SASR 276 at 285 per Zelling J; Estate of Vitch (1988) 147 LSJS 143 ; Cortez v Vitch (unreported, SC(SA), Lunn AJ, No 1695 of 1987, 19 October 1988); Re Bodman [1972] Qd R 281 at 284 per Hoare J.5 Re Crowe (decd) (1935) 35 SR (NSW) 547 at 551; 52 WN (NSW) 187 , Long Innes CJ in Eq; Bakranich v Public Trustee (unreported, SC(WA), Franklyn J, No 1617/89, 28 March, 1991, BC9101196); Re F [1940] St R Qd 290 , SC(QLD); Re McCaffrey (decd); Hay v Elders Trustee and Executor Co Ltd (1982) 29 SASR 582 , SC(SA); Cooper v Dungan (1976) 9 ALR 93; 50 ALJR 539 ; Re Anderson (1975) 11 SASR 276 ; Re Wilson [1957] St R Qd 577 , SC(QLD); Re Hatte [1943] St R Qd 1 ; Re Osborne [1928] St R Qd 129 , SC(QLD).6 Blore v Lang (1960) 104 CLR 124 at 135 per Fullagar and Menzies JJ; Gorton v Parks (1989) 17 NSWLR 1 ; Cooper v Dungan (1976) 9 ALR 93; 50 ALJR 539 at 543 per Stephen J; Re Bodman [1972] Qd R 281 at 284 per Hoare J; Re Salathiel [1971] QWN 18 , SC(QLD). The paragraph below is current to 16 May 2012 For new cases see ACL Reporter [395-6805] Adopted children The fact the applicant is an adopted child1 of the deceased may be relevant to the assessment of the moral duty of the deceased to the applicant. The adopted child is usually regarded on the same basis as a natural child of the deceased.2 The fact of adoption is regarded as a voluntary assumption by the deceased of the status of parent, and, accordingly, the obligation to make proper provision as a parent.3 The age of adoption and the period of adoption may be relevant in determining the nature and extent of the claim of the applicant.4 Notes 1 As to adoption generally see family law [205-2210]-[205-2525].2 Re Theaker (decd) [1955] QWN 51 ; Heuston v Barber (1990) 19 NSWLR 354 at 358 per Windeyer M .3 Re Ward (decd); Drysdale v Ward [1964] NZLR 929 ; Re Buffalora (decd); Buffalora v Public Trustee [1956] NZLR 1017 at 1020 per North J ; Hudson v Grace (unreported, SC(NSW), Holland J, No 3523 of 1981, No 3837 of 1981, 5 May 1982).4 Re S (decd); H v T [1975] VR 47 at 55 per Menhennit J ; Re Lawson [1987] 1 NZLR 486 at 491 per Jeffries J ; Re Yarrell (decd); Dickinson v Yarrell [1956] NZLR 739 at 745-6 per Gresson J . The paragraph below is current to 16 May 2012 For new cases see ACL Reporter
[395-6810] Stepchildren When assessing the claim of a stepchild the court considers: 1 (1) the degree of the deceaseds responsibility for advancement and maintenance of the stepchild; (2) the actual dependence of the stepchild; and (3) the age of the stepchild when the relationship commenced with the deceased. Notes 1 Hinchen v Public Trustee [1978] Tas SR (NC 11) 221; Re Lockwood [1960] Tas SR 46 . Often there is no special consideration given to the fact that the applicant is a stepchild and he or she is treated by the court as any other child applicant: Re Fulop (decd); Fulop v Public Trustee (1987) 8 NSWLR 679 . As to the basis of liability of step-parents see family law [205-4385].
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(4) EXERCISE OF COURTS DISCRETION
(A) General Principles
The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6875] Introduction If the court concludes that it has jurisdiction in a given case and that an applicant has been left without adequate provision for proper maintenance, education or advancement in life,1 the court has a wide power to make such orders for provision as it thinks fit in all the circumstances of the case.2 The court may also refuse to make an order in certain circumstances.3 Where the jurisdictional question is assessed as at the date of death, 4 the discretionary question is assessed as at the date of the hearing.5 In New South Wales, the legislation specifies matters which may be considered in exercising the discretionary powers under the legislation together with any other matters which the court considers relevant.6 In the Australian Capital Territory and Victoria, the legislation indicates that certain matters must be taken into account.7 In exercising its discretion under the legislation the court is not entitled simply to make a new will for the testator, or a will for an intestate.8 The court can only exercise its discretion within the limits of the legislation.9 In all jurisdictions, the family provision legislation expressly allows the court to make an order in the form of a lump sum, periodical payment or other payment.10 The court has a wide discretion in respect of the terms of an order for periodical payment.11 Such payments may be indexed,12 and automatically cease upon the death of the person benefiting from the payments.13 In New South Wales, the court may make provision through: (1) specified existing or future property;14 (2) an absolute or limited interest in property;15 or (3) any other manner which the court thinks fit.16 In Tasmania, the court may make an order for provision by way of a life interest or lesser interest in a dwelling-house, including a house purchased by order of the court from assets of the estate.17 In Western Australia, the court may make an order for family provision under the (WA) Trustees Act 1962 18 rather than the (WA) Inheritance (Family and Dependants Provision) Act 1972, if the deceaseds estate has been wholly or partly distributed to beneficiaries.19 In all jurisdictions, the family provision legislation allows the court to impose any conditions on an order which it thinks fit.20 However, the conditions must not breach common law rules, unless legislation expressly provides otherwise.21 The court may require the applicant to waive his or her existing rights.22
In the Australian Capital Territory, the Northern Territory and New South Wales, a condition may be attached to an order made in relation to the estate of a person who is presumed to be dead, that if the person is subsequently found to be alive, restitution or restoration of the property must be made by the applicant.23 In Tasmania and Victoria, the court may impose conditions to prevent, restrict or defeat an alienation of, or charge on, the benefit of any provision made under the order.24 Notes 1 As to the needs of an applicant see [395-6705], [395-6710].2 (ACT) Family Provision Act 1969 s 8(1) (NT) Family Provision Act 1970 s 8(1) (NSW) Succession Act 2006 s 59 (QLD) Succession Act 1981 s 41 (SA) Inheritance (Family Provision) Act 1972 s 7(1) (TAS) Testators Family Maintenance Act 1912 s 3(1), 3(2) (a lump sum payment or life estate or lesser interest only) (VIC) Administration and Probate Act 1958 s 91 (WA) Inheritance (Family and Dependants Provision) Act 1972 s 6(1). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972. 3 As to disentitling conduct see [395-6910], [395-6915].4 In New South Wales the circumstances are assessed as at the date of the hearing: (NSW) Succession Act 2006 s 59(1)(c).5 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494; [1956] ALR 739; (1956) 30 ALJ 231 . See also Churton v Christian (1988) 13 NSWLR 241; 12 Fam LR 386 , CA(NSW).6 (NSW) Succession Act 2006 s 60.7 (ACT) Family Provision Act 1969 s 8(2), 8(3) (VIC) Administration and Probate Act 1958 s 91(4) and see [395-6556]. 8 Bosch v Perpetual Trustee Co Ltd (1938) 38 SR (NSW) 176; [1938] AC 463 at 477-8; [1938] 2 All ER 14 , PC; Worladge v Doddridge (1957) 97 CLR 1 at 12; [1957] ALR 691 per Williams and Fullagar JJ; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19; [1962] ALR 775; (1962) 36 ALJR 1 per Dixon CJ; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146; 23 ALR 321; 53 ALJR 249 per Gibbs J; Hunter v Hunter (1987) 8 NSWLR 573 at 576 per Kirby P, CA(NSW); Re Allardice; Allardice v Allardice (1910) 29 NZLR 959; 12 GLR 753 (affirmed Allardice v Allardice [1911] AC 730 ).9 Re Allardice; Allardice v Allardice (1910) 29 NZLR 959; 12 GLR 753 (affirmed Allardice v Allardice [1911] AC 730 ); Cooper v Dungan (1976) 9 ALR 93; 50 ALJR 539 .10 (ACT) Family Provision Act 1969 s 15(1) (NT) Family Provision Act 1970 s 15(1) (NSW) Succession Act 2006 s 65(2)(a), 65(2)(b), 65(2)(f) (QLD) Succession Act 1981 s 41(2)(b)
(SA) Inheritance (Family Provision) Act 1972 s 7(6) (TAS) Testators Family Maintenance Act 1912 s 3(2)(a) (a lump sum payment only) (VIC) Administration and Probate Act 1958 s 96(3) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 6(4). See also Worladge v Doddridge (1957) 97 CLR 1 at 18, 19; [1957] ALR 691 per Kitto J.
11 For example, the commencement date of payments may vary. See Re ONeill (1917) 34 WN (NSW) 72 at 73 per Simpson CJ; Borthwick v Perpetual Trustee Co Ltd (1958) SR (NSW) 151; 76 WN (NSW) 694 at 700 ; Srhoj v Marian [1965] WAR 61 at 64 per Hale J; In the Estate of Bridges (decd) (1975) 12 SASR 1 at 4-5 per Bray CJ (payment from date of instituting proceedings or from date order made); Re Liston (decd) [1957] VR 50 at 52-3 per Lowe J (payment to commence 15 months after order made).12 White v Barron (1980) 144 CLR 431 at 452; 30 ALR 51; 54 ALJR 333; BC8000077 per Aickin J; Goodman v Windeyer (1980) 144 CLR 490 at 503-4 per Gibbs J, at 511-12 per Aickin J; 31 ALR 23; 54 ALJR 470; BC8000095 .13 Re Shannon (1935) 35 SR (NSW) 516; 52 WN (NSW) 171 .14 (NSW) Succession Act 2006 s 65(2)(c).15 Ibid s 65(2)(d). See, for example, Pata v Vambuca [2002] NSWSC 167; BC200200799 (order for a legacy and life estate in house to nephew; executor directed to expend $240,000 to renovate the house).16 (NSW) Succession Act 2006 s 65(2)(f). There are no equivalent provisions in the other jurisdictions. 17 (TAS) Testators Family Maintenance Act 1912 s 3(2)(b), 3(2)(c), 3(3). There are no equivalent provisions in the other jurisdictions. 18 (WA) Trustees Act 1962 s 65.19 (WA) Inheritance (Family and Dependants Provision) Act 1972 s 8(1). There are no equivalent provisions in the other jurisdictions. 20 (ACT) Family Provision Act 1969 s 11 (NT) Family Provision Act 1970 s 11 (NSW) Succession Act 2006 s 65(1)(d) (QLD) Succession Act 1981 s 41(2)(a) (SA) Inheritance (Family Provision) Act 1972 s 7(4) (TAS) Testators Family Maintenance Act 1912 s 9(1)(d) (VIC) Administration and Probate Act 1958 s 96(2) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 6(3). See, for example, Re Fletcher (decd); Fletcher v Usher [1921] NZLR 649; [1921] GLR 429 (abstention from the consumption of intoxicating liquor); Re Green (decd) (1911) 13 GLR 477 (condition that applicant obtain medical treatment). 21 In the Estate of Leahy (decd); Earl v Moses [1975] 1 NSWLR 246 at 251 per Bowen CJ.22 McGrath v Queensland Trustees Ltd [1919] St R Qd 169; [1919] QWN 34 (waiving rights against spouses estate); Re Wright [1966] Tas SR (NC 1) 287 (surrendering part of a superannuation payment to the estate).23 (ACT) Family Provision Act 1969 s 14
(NT) Family Provision Act 1970 s 14 (NSW) Succession Act 2006 s 67. There are no equivalent provisions in the other jurisdictions. 24 (TAS) Testators Family Maintenance Act 1912 s 8(2) (VIC) Administration and Probate Act 1958 s 96(2). There are no equivalent provisions in the other jurisdictions. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation [395-6880] Spouses The particular issues that have arisen in relation to the making of orders in favour of spouses include: (1) whether or not a claimant has been a dutiful and devoted spouse;1 (2) whether or not a spouse can provide for himself or herself financially;2 and (3) the length and character of the relationship between the applicant and the deceased.3 The court will look at the level of provision necessary for the surviving spouse to achieve independence,4 which includes:5 (1) security in the spouses home;6 (2) income sufficient to permit the spouse to live in the style to which he or she is accustomed;7 and (3) a fund to enable the spouse to meet any unforeseen contingencies.8 Notes 1 Goodman v Windeyer (1980) 144 CLR 490; 31 ALR 23; 54 ALJR 470; BC8000095 .2 Parsons v Lake [2001] NSWSC 572; BC200103678 .3 Ellis v Ellis [2001] NSWSC 289; BC200102001 ; Carruthers v Marshall [2001] NSWSC 665; BC200105196 ; Marshall v Carruthers [2002] NSWCA 47; BC200200589 .4 Langtry v Campbell (unreported, SC(NSW), Powell J, No 3252/88, 7 March 1991, BC9102264).5 Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70 per Powell J; Worladge v Doddridge (1957) 97 CLR 1 at 12; [1957] ALR 691 per Williams and Fullagar JJ; Re Harris [1936] SASR 497 at 501 per Cleland J.6 Ng v Taylor
(unreported, SC(NSW), Powell J, No 2426/86, 13 June 1989, BC8902070) (de facto wife); Langtry v Campbell (unreported, SC(NSW), Powell J, No 3252/88, 7 March 1991, BC9102264); White v Barron (1980) 144 CLR 431; 30 ALR 51; 54 ALJR 333; BC8000077 ; Luciano v Rosenblum (1985) 2 NSWLR 65 ; Murray v Parsons (unreported, SC(NSW), McClelland J, No 4145/86, 3 March 1989, BC8902463). In making a flexible order the court must take into account both retirement village and nursing home accommodation: Court v Hunt (unreported, SC(NSW), Young J, No 1996/87, 14 September 1987, BC8701155).7 Protecting an income from the effects of inflation has been achieved either by indexing the annuity or providing a lump sum, the choice falling within the discretion of the court: White v Barron (1980) 144 CLR 431; 30 ALR 51; 54 ALJR 333; BC8000077 ; Goodman v Windeyer (1980) 144 CLR 490; 31 ALR 23; 54 ALJR 470; BC8000095 ; Re Saxon (decd); Saxon v Elders Trustee and Executor Co Ltd (1975) 12 SASR 110 . Income provisions are no longer necessarily tied to widowhood: White v Barron (1980) 144 CLR 431 at 444; 30 ALR 51; 54 ALJR 333; BC8000077 per Mason J. See also (TAS) Testators Family Maintenance Act 1912 s 9(4). A lump sum may be preferred to an income provision due to the delay on the distribution of the estate: Re Anderson (1975) 11 SASR 276 at 285 per Zelling J. An income provision may be appropriate in the case of an elderly person or a spouse of uncertain life expectancy: Re Traeger (decd) [1949] SASR 180 at 187 per Mayo J. 8 In considering whether to include such provision, and if so, the size of such provision, the court may only go so far as to remedy the lack of proper provision in the will: White v Barron (1980) 144 CLR 431 at 458; 30 ALR 51; 54 ALJR 333; BC8000077 per Wilson J. The age of the spouse is relevant: Pengilley v Public Trustee (unreported, SC(NSW), Young J, No 3824/84, 9 October 1985, BC8500486). The claims of children are also significant: Worladge v Doddridge (1957) 97 CLR 1; [1957] ALR 691 ; White v Barron (1980) 144 CLR 431; 30 ALR 51; 54 ALJR 333; BC8000077 . The paragraph below is current to 16 May 2012 For new cases see ACL Reporter [395-6885] Children The court is not at liberty to provide for an equal division amongst the children of the deceased, unless this is the conclusion reached as a matter of discretion in all the circumstances of the case.1 In making orders for minors, the court must take into account a wide range of contingencies.2 Where the estate is large, a wider range of needs and contingencies may be taken into account.3 Where an applicant has shown a propensity for being a spendthrift, but otherwise the court considers that there is jurisdiction to make an order in the applicants favour, the court may take this into account in the manner of framing an order.4 Notes 1 Re Hodgson (decd) [1955] VLR 481 at 485; [1956] ALR 108 per Herring CJ, SC(VIC), Full Court; Blore v Lang (1960) 104 CLR 124 at 134-6 per Fullagar and Menzies JJ; Re Clift [1963] NSWR 1313 at 1322-3 per Richardson J; Re Taylor [1968] Qd R 385 at 392 per Lucas J; Cooper v Dungan (1976) 9 ALR 93; 50 ALJR 539 at 540 per Gibbs J, at 542 per Stephen J; Gorton v Parks (1989) 17 NSWLR 1 at 6 per Bryson J; Re Liston (decd) [1957] VR 50 at 52 per Lowe J.2 Bosch v Perpetual Trustee Co Ltd (1938) 38 SR (NSW) 176; [1938] AC 463 at 478, 483; [1938] 2 All ER 14 , PC; Re Butler [1948] VLR 434; [1948] 2 ALR 593 .3 Bosch v Perpetual Trustee Co Ltd (1938) 38 SR (NSW) 176; [1938] AC 463; [1938] 2 All ER 14 ; Blore v Lang (1960) 104 CLR 124 at 135 per Fullagar and Menzies JJ; Gorton v Parks (1989) 17 NSWLR 1 at 8-9 per Bryson J; Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494; [1956] ALR 739; (1956) 30 ALJ 231 ; Wentworth v Wentworth (unreported, SC(NSW), Bryson J, No 3748/89, 14 June 1991, BC9101896) (reversed on another point Wentworth v Wentworth (unreported, CA(NSW), Samuels AP, Priestley and Handley JJA, No
40370/1991, 3 March 1992, BC9202033)).4 Kearns v Ellis (unreported, CA(NSW), Glass, Mahoney and McHugh JJA, CA363 of 1983, 5 December 1984, BC8400149); Bondy v Vavros (unreported, SC(NSW), Young J, No 3983/86, 29 August 1988, BC8802429). The paragraph below is current to 16 May 2012 For new cases see ACL Reporter [395-6890] Discretion and social security benefits Two issues arise in relation to social security benefits: (1) the relevance of social security entitlements to an applicants claim; and (2) the relevance of the provision of care by the state, for example, where an applicant is confined to an institution such as a mental hospital.1 The court may not make an order simply to relieve the state of payments that would otherwise be made.2 Entitlement to pensions or other social security payments is to be taken into account but should not be regarded as a substitute for the obligation of the deceased under the family provision legislation.3 The preservation of a pension entitlement may be significant in the exercise of the discretion to make an order in favour of an eligible applicant where the estate is small, for in such a case the assets of the estate might be preserved better for others who also have a claim on the bounty of the deceased.4 If the applicant does not directly receive any benefit and the only effect of an order for relief would be to enrich the States public revenue, then the order should not be made.5 However, in some cases provision has been allowed by the court for relief for the disabled applicant6 in order to meet contingencies such as being permanently or temporarily discharged from the hospital or institution or being allowed time away from it as well as provision for extra comforts, clothing and outings of a recreational nature.7 However, if the disabled patient does not obtain any direct benefit whatsoever from a relief order, the order will be refused by the court.8 Notes 1 As to mental health services generally see mental health and intellectual disability [285-110].2 Lieberman v Morris (1944) 69 CLR 69; [1944] ALR 150; 18 ALJR 67; BC4400033 .3 Re Pope (decd); Pope v Public Trustee (1975) 11 SASR 571 at 574 per Bray CJ; Shah v Perpetual Trustee Co (1981) 7 Fam LR 97 at 100 per Rath J.4 Parker v Public Trustee (unreported, SC(NSW), Young J, No 4567/87, 31 May 1988, BC8801885); Shah v Perpetual Trustee Co (1981) 7 Fam LR 97 at 100 per Rath J; Bondelmonte v Blanckensee [1989] WAR 305 at 312 per Malcolm J, at 320-1 per Nicholson J; Triplett v Triplett (unreported, SC(WA), Ipp J, No 2359/87, 16 March 1990, BC9001437).5 Re Duff (1948) 48 SR (NSW) 510 at 512, 513; 65 WN (NSW) 282 per Sugerman J; Re E (decd); E v E [1966] 2 All ER 44 at 48; [1966] 1 WLR 709 per Stamp J.6 Re McNamara (decd) (1938) 55 WN (NSW) 180 ; Re Williams [1933] SASR 107 .7 Re WTN (1959) 33 ALJ 240n; Re Pringle (1956) CLY 9248; Penty v Mott (1984) 6 DLR (4th) 444; Re Wood [1982] LS Gaz R 774.8 Re Duff (1948) 48 SR (NSW) 510; 65 WN (NSW) 282 .
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(B) Grounds for Refusal to Make an Order The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6895] Disentitling conduct In all jurisdictions, except New South Wales, the legislation provides that if the character and conduct of the applicant is such that it disentitles that person to relief, the court may refuse to grant an order.1 In New South Wales, the character and conduct of the person is a factor to be taken into account and to be considered by the court in ascertaining whether any relief order should be made.2 Although the disentitling conduct provisions only permit a refusal to make an order, some decisions have used disentitling conduct as a basis for reducing provision for an applicant.3 The character or conduct of the applicant may be taken into account in reducing the quantum of any relief order granted by the court.4 In determining whether conduct is sufficient to disentitle the applicant from relief, the court must base its decision not only on the nature of the conduct itself, but also on the applicants need to seek provision from the estate.5 The stronger the applicants case for relief, the more reprehensible the conduct must have been before it is considered to be disentitling.6 Character or conduct disentitling has been held to mean misconduct towards the testator, or that the character or conduct shows that the applicants need is a result of his or her own default.7 Only New South Wales expressly includes character and conduct which occurs after death as relevant to the discretionary question.8 In other jurisdictions the matter remains one of interpretation of the legislation on general principles.9 Conduct after the deceaseds death may affect the way in which any order is made.10 Notes 1 (ACT) Family Provision Act 1969 s 8(3) (NT) Family Provision Act 1970 s 8(3)
(QLD) Succession Act 1981 s 41(2)(c) (SA) Inheritance (Family Provision) Act 1972 s 7(3) (TAS) Testators Family Maintenance Act 1912 s 8(1) (VIC) Administration and Probate Act 1958 s 91(4) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 6(3). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972. As to the position in New South Wales see note 2 below. For the meaning of character or conduct disentitling see [395-6910]. 2 (NSW) Succession Act 2006 s 60(2)(m). See also Wentworth v Wentworth (unreported, CA(NSW), Samuels AP, Priestley and Handley JJA, No 40370/1991, 3 March 1992, BC9202033).3 See, for example, Re Paulin [1950] VLR 462 at 473; [1950] ALR 503 per Sholl J; Re Johnstone; Johnstone v Perpetual Trustees Executors and Agency Co of Tasmania Ltd [1962] Tas SR 356 at 364 per Cox J. The extent of the moral claim may be affected by the conduct of the applicant: Re Sinnott (decd) [1948] VLR 279 at 281; [1948] 2 ALR 309 per Fullager J; Re Cooper (decd); Cooper v Cooper [1970] 2 NSWR 182 at 186 per Jacobs JA.4 Re S (decd); H v T [1975] VR 47 at 56 per Menhennitt J; In the Will of Gilbert (decd) (1946) 46 SR (NSW) 318; 63 WN (NSW) 176 , SC(NSW), Full Court; McGrath v Queensland Trustees Ltd [1919] St R Qd 169; [1919] QWN 34 .5 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 156; 23 ALR 321; 53 ALJR 249 per Gibbs J.6 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 156; 23 ALR 321; 53 ALJR 249 per Gibbs J.7 In the Will of Gilbert (decd) (1946) 46 SR (NSW) 318 at 321; 63 WN (NSW) 176 per Jordan CJ, SC(NSW), Full Court (applicants perjury committed in the evidence given by her in support of her application); Re De Poli (decd) [1964] NSWR 424 ; Ray v Moncrieff [1917] NZLR 234; [1917] GLR 72 (son of testator a chronic drunkard); Pengilley v Public Trustee (unreported, SC(NSW), Young J, No 3824/1989, 9 October 1985, BC8500486). For the meaning of character or conduct disentitling see further [3956910].8 (NSW) Succession Act 2006 s 60(2)(m).9 See, for example, Re Hardgraves [1955] St R Qd 601 at 610 per Stanley J (Townley J agreeing) (legislation construed as referring to conduct in the present tense). (NT) Family Provision Act 1970 s 8(3) explicitly refers to conduct both in the present tense and in the past tense.10 McGrath v Queensland Trustees Ltd [1919] St R Qd 169; [1919] QWN 34 (theft of estate assets by husband; periodical payment granted rather than a lump sum). The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6900] Other express grounds Other grounds for refusal to make an order apart from disentitling conduct1 are provided in Queensland, South Australia and Western Australia. In Queensland, the court may refuse to make an order where the circumstances of the applicant are such as to make the refusal reasonable.2 In South Australia and Western Australia, the court may refuse to make an order for any other reason that the court thinks sufficient.3
Notes 1 As to disentitling conduct see [395-6895]. For the meaning of character or conduct disentitling see further [395-6910].2 (QLD) Succession Act 1981 s 41(2)(c).3 (SA) Inheritance (Family Provision) Act 1972 s 7(3) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 6(3). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6905] Onus of proof The onus of proof lies on those who resist the application by alleging disentitling conduct.1 Where an allegation of disentitling conduct is made the court considers whether, on the balance of probabilities, it has been proven.2 If the court considers that there is sufficient proof, it will then consider whether the conduct is sufficient to disentitle an applicant.3 Notes 1 Re K [1921] St R Qd 172; [1921] QWN 36 ; Re Osborne [1928] St R Qd 129 at 131 per Woolcock J; Re Ruxton; Ruxton v Trustees Executors and Agency Co Ltd [1946] VLR 334 at 335 per Fullager J; Re Scott; Scott v Union Trustee Co of Australia Ltd [1950] VLR 102 at 105; [1950] ALR 183 per Herring CJ; Re Paulin [1950] VLR 462 at 473; [1950] ALR 503 per Sholl J; Re Johnstone; Johnstone v Perpetual Trustees Executors and Agency Co of Tasmania Ltd [1962] Tas SR 356 at 359 per Cox J. As to disentitling conduct see [395-6895]. For the meaning of character or conduct disentitling see [395-6910].2 Re Hardgraves [1955] St R Qd 601 ; Re Hardgraves (No 2) [1956] St R Qd 153 ; Re Scott; Scott v Union Trustee Co of Australia Ltd [1950] VLR 102 at 105; [1950] ALR 183 per Herring CJ; Re Ward (decd); Drysdale v Ward [1964] NZLR 929 at 933 per Tompkins J; Re Green (decd); Zukerman v Public Trustee [1951] NZLR 135 at 141; [1951] GLR 50 at 52 per Greeson J.3 (ACT) Family Provision Act 1969 s 8(3)(a) (NT) Family Provision Act 1970 s 8(3) (QLD) Succession Act 1981 s 41(2)(c) (SA) Inheritance (Family Provision) Act 1972 s 7(3) (TAS) Testators Family Maintenance Act 1912 s 8(1) (VIC) Administration and Probate Act 1958 s 91(4) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 6(3). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972.
There are no equivalent provisions in New South Wales: see [395-6895].
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(C) Meaning of Character or Conduct Disentitling The paragraph below is current to 16 May 2012 For new cases see ACL Reporter [395-6910] Disentitling conduct and spouses The type of conduct of a spouse that will disentitle the applicant needs to be considered in the light of the prevailing community standards at the time.1 Adultery or desertion followed by adultery may amount to disentitling conduct. 2 Where adultery has been considered to be disentitling conduct, strict proof has not been required for the court to make a finding of disentitling conduct; it is sufficient that one spouse has good grounds for believing that the other was guilty of adultery.3 The court will always give the applicant the benefit of the doubt if the adultery is not proved but merely alleged.4 If the deceased condoned the act of adultery then the applicant may still be eligible for relief,5 especially where the deceased also participated in adultery.6 Desertion of the deceased by the applicant may amount to disentitling conduct.7 Separation or living apart does not necessarily disentitle an applicant.8 The fact of separation is taken into account along with the causes of it in the light of all the circumstances of the case.9 If the reason for the separation was the conduct of the deceased, the separation itself is not so significant.10 Renunciation of the obligations of marriage has been considered to be disentitling conduct.11 Notes 1 As to community standards see [395-6700].2 See, for example, Re TM [1929] QWN 2 ; Re Woollard (decd) [1953] SASR 173 ; Re De Feu [1964] VR 420 at 427 per Sholl J; In the Will of Roberts (decd) [1919] VLR 125; (1919) 25 ALR 64; 40 ALT 149 ; Re McGoun [1910] VLR 153; (1910) 16 ALR 141; 31 ALT 193 . Compare Coates v Thomas [1947] NZLR 779 ; Birch v Reeves (unreported, SC(NSW), McLelland J, No 5350 of 1986, 21 July 1988, BC8801716).3 Re McGoun [1910] VLR 153; (1910) 16 ALR 141; 31 ALT 193 .4 Re Scott; Scott v Union Trustee Co of Australia Ltd [1950] VLR 102; [1950] ALR 183 .5 Coates v Thomas [1947] NZLR 779 .6
Re Ruxton; Ruxton v Trustees Executors and Agency Co Ltd [1946] VLR 334 .7 Re Gregory (decd); Gregory v Goodenough [1971] 1 All ER 497; [1970] 1 WLR 1455 ; Re Parr (decd) (1929) 30 SR (NSW) 10; 46 WN (NSW) 207 ; Re Kennedy (decd) [1920] VLR 513 at 515; (1920) 26 ALR 231; 42 ALT 49 per Mann J. Compare Delacour v Waddington (1953) 89 CLR 117; [1953] ALR 913; (1953) 27 ALJ 485 (parties agreed to live separately and apart); Re Johnstone; Johnstone v Perpetual Trustees Executors and Agency Co of Tasmania Ltd [1962] Tas SR 356 (constructive desertion); Re Jackson (decd); Jackson v Public Trustee [1954] NZLR 175 (violence).8 Re Johnstone; Johnstone v Perpetual Trustees Executors and Agency Co of Tasmania Ltd [1962] Tas SR 356 ; Re Scott; Scott v Union Trustee Co of Australia Ltd [1950] VLR 102 at 107; [1950] ALR 183 per Herring CJ; Re Bradbury [1947] St R Qd 171 ; Re Knight (decd); Knight v Ongley [1939] GLR 673 at 677 per Johnston J; Re Dingle (1921) 21 SR (NSW) 723 at 726; 38 WN (NSW) 207 per Street CJ; Re Clissold (decd) and the Testators Family Maintenance Act [1970] 2 NSWR 619 .9 Re Johnstone; Johnstone v Perpetual Trustees Executors and Agency Co of Tasmania Ltd [1962] Tas SR 356 ; Delacour v Waddington (1953) 89 CLR 117; [1953] ALR 913; (1953) 27 ALJ 485 .10 Re Scott; Scott v Union Trustee Co of Australia Ltd [1950] VLR 102 at 107; [1950] ALR 183 per Herring CJ.11 Re Kennedy (decd) [1920] VLR 513; (1920) 26 ALR 231; 42 ALT 49 ; In the Will of Roberts (decd) [1919] VLR 125; (1919) 25 ALR 64; 40 ALT 149 . The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6915] Disentitling conduct and children The alleged disentitling conduct must be considered in the light of all the circumstances of the case and in the context of prevailing community standards.1 For example, where lack of contact is suggested as disentitling conduct, the absence of contact may be for a variety of different reasons and those reasons are relevant to the assessment of the claim of the child.2 Criminal activity of a child may amount to disentitling conduct.3 In New South Wales, the court may consider criminal activity as part of the character and conduct of the applicant.4 In common law, such conduct may be considered on the basis that it showed that the applicants need was due to his or her own default.5 In Queensland, South Australia and Western Australia, the court may also consider such activity under the extended grounds for refusal.6 Conduct which goes against the wishes of the parent may or may not amount to disentitling conduct depending on the prevailing community standards and all the circumstances of the case, such as leaving home against the parents wishes,7 marrying without the parents consent,8 maintaining a lifestyle of which the parent did not approve9 and maintaining different religious practices.10 Notes 1 As to community standards see [395-6700].2 As to disentitling conduct see [395-6895].3 Price v Roberts (unreported, SC(NSW), Windeyer M, No 1128/90, 15 November 1990). Compare Hoadley v Hoadley (unreported, SC(NSW), Young J, Eq 2222 of 85, 17 February 1987, BC8701583) (applicant son had been in prison for 14 of the 20 years prior to the hearing); In the Will of Gilbert (decd) (1946) 46 SR (NSW) 318 at 326; 63 WN (NSW) 176 per Jordan CJ.4 (NSW) Succession Act 2006 s 60(2)(m).5 See, for example, In the Will of Gilbert (decd) (1946) 46 SR (NSW) 318 at 326; 63 WN (NSW) 176 per Jordan CJ.6 See [395-6900].7 Re Hallahan (1918) 18 SR (NSW) 138 (order refused as applicant had severed all claims upon her father
through her actions).8 Re Harris (1918) 18 SR (NSW) 303; 35 WN (NSW) 122 .9 Williams v Williams (unreported, SC(NSW), Cohen J, No 4183/86, 28 April 1989, BC8902237) (deceased mother greatly disapproved of her daughters living with men to whom she was not married and having children in such circumstances); Prosser v Twiss [1970] VR 225 ; Re S (decd); H v T [1975] VR 47 (deceased greatly disapproved of the fact that the applicants adopted daughter had given birth to an illegitimate child).10 Wenn v Howard [1967] VR 91 (faith was closely adhered to by parents).
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(D) Variation of Orders The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6920] Interim orders An order made under the relevant family provision legislation is a final order made once and for all, except in the circumstances provided for in that legislation.1 In New South Wales, the court may make an interim order where it is of the opinion that no less provision than that proposed to be made by the interim order would be made in favour of the eligible person after full consideration of the application.2 On an interim application the court has to examine the evidentiary material placed before it and to assess on that material the probable outcome of the proceedings; if the probable outcome is that the court will have jurisdiction to make an order, an interim order may be made.3 Although the court may make any interim order it considers appropriate, the likely order would be to provide the applicant only such provision as would deal with real needs pending the hearing, and on the condition that the moneys will be recovered if the applicant is unsuccessful.4 In most jurisdictions there are protections for personal representatives who provide interim maintenance to various classes of dependants of the deceased.5 Notes
1 Re Butler [1948] VLR 434; [1948] 2 ALR 593 ; Re Porteous (decd) [1949] VLR 383; [1950] ALR 89 ; Re Molloy (decd) (1928) 28 SR (NSW) 546 ; Re Yates (1955) 72 WN (NSW) 497 ; Re Piper (decd) and the Testators Family Maintenance and Guardianship of Infants Act, 19161954 (1960) SR (NSW) 328 . Compare Re Blakemore (decd) and the Testators Family Maintenance Act [1967] 1 NSWR 10 (interim order made where value of estate uncertain).2 (NSW) Succession Act 2006 s 62. See [395-7095] note 1. There are no equivalent provisions in the other jurisdictions. 3 Young v Salkeld (1985) 4 NSWLR 375 .4 Young v Salkeld (1985) 4 NSWLR 375 at 381-2 per Young J. See also Qua v Qua (unreported, SC(NSW), Waddell CJ in Eq, No 3711/87, 10 August 1988, BC8801629).5 (ACT) Family Provision Act 1969 s 20(2) (includes education support) (NT) Family Provision Act 1970 s 20(2) (includes education support) (QLD) Succession Act 1981 s 44(1), 44(2) (maintenance and support to the spouse or children of the deceased only not including education support) (VIC) Administration and Probate Act 1958 s 99A(1) (maintenance and support to the spouse or children of the deceased only not including education support) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 11 (limits the support and maintenance to those things immediately necessary for the maintenance of dependants). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and a day had not been set as of the time of publication. The amending Act, which renames the principal Act the (WA) Family Provision Act 1972, adds a new s 7A, allowing the court to make interim orders if it is of the opinion that it is necessary to provide for things immediately necessary for maintenance, support or education of any person who is totally or partially dependent on the deceased immediately prior to death. There are no equivalent provisions in the other jurisdictions. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6925] Power to vary orders There is no general power to increase provision unless specifically provided by legislation and legislation which only includes a power to vary an order has been held not to extend to an order for increased provision.1 An increase in provision is permitted in the Australian Capital Territory, New South Wales, Queensland, Tasmania and Western Australia.2 All jurisdictions have the power to vary by reducing an existing order. 3 The power to increase or reduce the amount of the provision must be exercised with great caution and only when its exercise is clearly called for by the altered circumstances of the case.4 Notes 1 Preston v Public Trustee [1933] GLR 868; [1933] NZLR 1237 ; Re Edwards [1960] Tas SR 146 . See also (NT) Family Provision Act 1970 s 17(3) (expressly excludes a power to increase from the power to vary contained in the section).2 (ACT) Family Provision Act 1969 s 9A(3) (where the court has directed provision by way of periodical payments or the benefit of the
investment of a lump sum) (NSW) Succession Act 2006 s 59(3) (power to make an order for additional provision where there has been a substantial detrimental change in the circumstances of the eligible person or there was undisclosed property at the time of original order. See also ibid s 59(4) (power to make an order for an applicant whose application for family provision from the same estate has been refused in the past). The power conferred by (NSW) Family Provision Act 1982 (repealed) s 8 (now replaced by (NSW) Succession Act 2006 s 59(3)) to increase a former provision was held to only apply when the former order was for continuing maintenance and the income was inadequate to provide for the maintenance, education or advancement in life of the eligible person: Wentworth v Wentworth (1995) 37 NSWLR 703; BC9505254 . (QLD) Succession Act 1981 s 42(1) (general power to vary; power to award increased provision is confined to cases where the initial order was a periodical payment or investment of a lump sum) (TAS) Testators Family Maintenance Act 1912 s 9(5)(b) (court may increase an order in such manner as it thinks proper provided that it will not disturb a distribution of any part of the estate that was lawfully made before the making of the application for the alteration) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 16(1) (since original order circumstances have so changed that undue hardship will be caused if increased provision is not made). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972. 3 (ACT) Family Provision Act 1969 s 9A(2) (QLD) Succession Act 1981 s 42(1) (VIC) Administration and Probate Act 1958 s 97(5) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 15(1). See also: (NT) Family Provision Act 1970 s 17(1)-(3) (general power to vary) (NSW) Succession Act 2006 ss 70, 71 (general power to vary) (SA) Inheritance (Family Provision) Act 1972 s 12 (general power to vary) (TAS) Testators Family Maintenance Act 1912 s 9(5) (general power to vary). 4 Wentworth v Wentworth (1995) 37 NSWLR 703; BC9505254 . See further [395-7120].
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(D) Variation of Orders The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6920] Interim orders An order made under the relevant family provision legislation is a final order made once and for all, except in the circumstances provided for in that legislation.1 In New South Wales, the court may make an interim order where it is of the opinion that no less provision than that proposed to be made by the interim order would be made in favour of the eligible person after full consideration of the application.2 On an interim application the court has to examine the evidentiary material placed before it and to assess on that material the probable outcome of the proceedings; if the probable outcome is that the court will have jurisdiction to make an order, an interim order may be made.3 Although the court may make any interim order it considers appropriate, the likely order would be to provide the applicant only such provision as would deal with real needs pending the hearing, and on the condition that the moneys will be recovered if the applicant is unsuccessful.4 In most jurisdictions there are protections for personal representatives who provide interim maintenance to various classes of dependants of the deceased.5 Notes 1 Re Butler [1948] VLR 434; [1948] 2 ALR 593 ; Re Porteous (decd) [1949] VLR 383; [1950] ALR 89 ; Re Molloy (decd) (1928) 28 SR (NSW) 546 ; Re Yates (1955) 72 WN (NSW) 497 ; Re Piper (decd) and the Testators Family Maintenance and Guardianship of Infants Act, 19161954 (1960) SR (NSW) 328 . Compare Re Blakemore (decd) and the Testators Family Maintenance Act [1967] 1 NSWR 10 (interim order made where value of estate uncertain).2 (NSW) Succession Act 2006 s 62. See [395-7095] note 1. There are no equivalent provisions in the other jurisdictions. 3 Young v Salkeld (1985) 4 NSWLR 375 .4 Young v Salkeld (1985) 4 NSWLR 375 at 381-2 per Young J. See also Qua v Qua (unreported, SC(NSW), Waddell CJ in Eq, No 3711/87, 10 August 1988, BC8801629).5 (ACT) Family Provision Act 1969 s 20(2) (includes education support) (NT) Family Provision Act 1970 s 20(2) (includes education support) (QLD) Succession Act 1981 s 44(1), 44(2) (maintenance and support to the spouse or children of the deceased only not including education support)
(VIC) Administration and Probate Act 1958 s 99A(1) (maintenance and support to the spouse or children of the deceased only not including education support) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 11 (limits the support and maintenance to those things immediately necessary for the maintenance of dependants). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and a day had not been set as of the time of publication. The amending Act, which renames the principal Act the (WA) Family Provision Act 1972, adds a new s 7A, allowing the court to make interim orders if it is of the opinion that it is necessary to provide for things immediately necessary for maintenance, support or education of any person who is totally or partially dependent on the deceased immediately prior to death. There are no equivalent provisions in the other jurisdictions. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6925] Power to vary orders There is no general power to increase provision unless specifically provided by legislation and legislation which only includes a power to vary an order has been held not to extend to an order for increased provision.1 An increase in provision is permitted in the Australian Capital Territory, New South Wales, Queensland, Tasmania and Western Australia.2 All jurisdictions have the power to vary by reducing an existing order. 3 The power to increase or reduce the amount of the provision must be exercised with great caution and only when its exercise is clearly called for by the altered circumstances of the case.4 Notes 1 Preston v Public Trustee [1933] GLR 868; [1933] NZLR 1237 ; Re Edwards [1960] Tas SR 146 . See also (NT) Family Provision Act 1970 s 17(3) (expressly excludes a power to increase from the power to vary contained in the section).2 (ACT) Family Provision Act 1969 s 9A(3) (where the court has directed provision by way of periodical payments or the benefit of the investment of a lump sum) (NSW) Succession Act 2006 s 59(3) (power to make an order for additional provision where there has been a substantial detrimental change in the circumstances of the eligible person or there was undisclosed property at the time of original order. See also ibid s 59(4) (power to make an order for an applicant whose application for family provision from the same estate has been refused in the past). The power conferred by (NSW) Family Provision Act 1982 (repealed) s 8 (now replaced by (NSW) Succession Act 2006 s 59(3)) to increase a former provision was held to only apply when the former order was for continuing maintenance and the income was inadequate to provide for the maintenance, education or advancement in life of the eligible person: Wentworth v Wentworth (1995) 37 NSWLR 703; BC9505254 . (QLD) Succession Act 1981 s 42(1) (general power to vary; power to award increased provision is confined to cases where the initial order was a periodical payment or investment of a lump sum) (TAS) Testators Family Maintenance Act 1912 s 9(5)(b) (court may increase an order in such manner as it thinks proper provided that it will not disturb a distribution of any part of the estate that was lawfully made before the making of the application for the alteration)
(WA) Inheritance (Family and Dependants Provision) Act 1972 s 16(1) (since original order circumstances have so changed that undue hardship will be caused if increased provision is not made). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972. 3 (ACT) Family Provision Act 1969 s 9A(2) (QLD) Succession Act 1981 s 42(1) (VIC) Administration and Probate Act 1958 s 97(5) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 15(1). See also: (NT) Family Provision Act 1970 s 17(1)-(3) (general power to vary) (NSW) Succession Act 2006 ss 70, 71 (general power to vary) (SA) Inheritance (Family Provision) Act 1972 s 12 (general power to vary) (TAS) Testators Family Maintenance Act 1912 s 9(5) (general power to vary). 4 Wentworth v Wentworth (1995) 37 NSWLR 703; BC9505254 . See further [395-7120].
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(E) Impact of an Order The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes
Annotations [395-6930] Effect of order In all jurisdictions except Queensland, an order takes effect as if it were a codicil executed by a testator immediately before his or her death.1 In New South Wales, an order takes effect as if the provision had been made in a codicil in the deceased persons will.2 However, the rule that the order takes effect as a codicil does not apply to an order for provision out of the notional estate.3 In Queensland, the order takes effect simply as a court order and does not modify the will itself 4 and the estate is held to be subject to the order.5 In all jurisdictions except New South Wales, Queensland and South Australia, if the deceased was intestate, the order takes effect as a modification of the rules of intestate succession.6 In New South Wales and South Australia, if the deceased was intestate, the order takes effect as if the provision had been made in the will of the deceased person.7 In Queensland, the order does not modify the rule of intestacy, but takes effect simply as a court order.8 The order for provision is usually deemed to be effective from the date of the testators death.9 However, an order may be postponed by the court in order that it may take effect in the future.10 In all jurisdictions, provision may be ordered out of any part of the deceaseds estate, including the distributed estate.11 If the order does not take effect as if it were a codicil, then it superimposes upon the personal representative further duties over and above his or her usual administrative duties.12 Notes 1 (ACT) Family Provision Act 1969 s 16(1) (NT) Family Provision Act 1970 s 16(1) (SA) Inheritance (Family Provision) Act 1972 s 10(a) (TAS) Testators Family Maintenance Act 1912 s 9(3)(a) (VIC) Administration and Probate Act 1958 s 97(4)(a) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 10. The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972. As to the position in New South Wales see note 2 below. 2 (NSW) Succession Act 2006 s 72(1)(a). 3 Heuston v Barber (1990) 19 NSWLR 354 at 361-2 per Windeyer M . As to the notional estate in New South Wales see [395-7205].4 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 315; 96 ALR 327; 64 ALJR 651; BC9002922 .5 (QLD) Succession Act 1981 s 41(10).6 (ACT) Family Provision Act 1969 s 16(2) (NT) Family Provision Act 1970 s 16(2)
(NT) Family Provision Act 1970 s 16(2) (TAS) Testators Family Maintenance Act 1912 s 9(3)(b) (VIC) Administration and Probate Act 1958 s 97(4)(b) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 10. 7 (NSW) Succession Act 2006 s 72(1)(b) (SA) Inheritance (Family Provision) Act 1972 s 10(b). 8 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 315; 96 ALR 327; 64 ALJR 651; BC9002922 .9 Easterbrook v Young (1977) 136 CLR 308 at 315; 13 ALR 351; 51 ALJR 456 . See also Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 315; 96 ALR 327; 64 ALJR 651; BC9002922 .10 For example, the date being the death of a life tenant: Re Sinnott (decd) [1948] VLR 279; [1948] 2 ALR 309 .11 Easterbrook v Young (1977) 136 CLR 308 at 315; 13 ALR 351; 51 ALJR 456 . As to orders out of the distributed estate see [3957195]. As to the notional estate in New South Wales see [395-7205].12 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 315; 96 ALR 327; 64 ALJR 651; BC9002922 .
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(5) PROCEDURAL MATTERS
(A) Time Limits The paragraph below is current to 16 May 2012
For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6985] General principles The time limits for making applications for relief under the family provision legislation differ from jurisdiction to jurisdiction.1 In all jurisdictions except New South Wales and Queensland, the time period runs from the date of grant of probate.2 In New South Wales and Queensland, time begins to run at the date of the death of the testator.3 Proceedings may be instituted prior to the obtaining of a grant, provided that the grant has been obtained by the time an application is heard.4 In New South Wales, the court may make a grant of probate or administration for the purposes of dealing with an application for family provision.5 In some jurisdictions, an application under the legislation is considered as being made on the date on which the originating process is filed.6 In some jurisdictions, certain applications may be tacked on to other applications which have been made within the applicable time limit.7 Notes 1 (ACT) Family Provision Act 1969 s 9(1) (12 months after grant of probate) (NT) Family Provision Act 1970 s 9(1) (12 months after grant of probate) (NSW) Succession Act 2006 s 58(2) (12 months after the date of death of the testator) (QLD) Succession Act 1981 s 41(8) (nine months after date of death of the testator) (SA) Inheritance (Family Provision) Act 1972 s 8(1) (six months after grant of probate) (TAS) Testators Family Maintenance Act 1912 s 11 (three months after grant of probate) (VIC) Administration and Probate Act 1958 s 99 (six months after grant of probate) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(2) (six months after grant of probate). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972. 2 Re Brien [1953] VLR 585 . If a grant in common form is revoked and then a second grant is issued by the court, time begins to run from the second grant: Re Park (1972) 66 QJPR 25; Re Bidie (decd); Bidie v General Accident Fire and Life Assurance Corp Ltd [1949] 1 Ch 121; [1948] 2 All ER 995; (1948) 65 TLR 25 , CA. As to revocation of a grant of representation see [395-2695].3 (NSW) Succession Act 2006 s 58(2) (within 12 months after the death of the deceased) (QLD) Succession Act 1981 s 41(8) (within nine months after the death of the deceased). 4 Burns v Elders Trustee and Executor Co Ltd [1968] SASR 297 ; Leue v Reynolds (1986) 4 NSWLR 590 ; Re Purnell (decd) [1961] QWN 34 . Compare Re Jenner (decd); Nuffer v Jenner [1960] Qd R 349 , SC(QLD), Full Court. In New South Wales, the court has no power to make an order until there has been a grant: Underwood v Underwood (unreported, SC(NSW), McClelland J, No 1110/1990, 2 March 1990, BC9002678); Witek v Witek (unreported,
SC(NSW), Young J, No 1256/1995, 7 April 1995, BC9504478) (interim order). In Queensland, Re Purnell (decd) [1961] QWN 34 may no longer represent the law: (QLD) Succession Act 1981 s 41(8).5 (NSW) Succession Act 2006 s 91.6 (ACT) Family Provision Act 1969 s 9(5) (NT) Family Provision Act 1970 s 9(5). See Brown v Holt [1961] VR 435 at 438 per Pape J; Re Jones; Noonan v Jones [1978] VR 272 at 273 per McInerney J; Leue v Reynolds (1986) 4 NSWLR 590 at 597 per Hodgson J. However, in South Australia, the application is deemed to be made on the day when the originating summons is served on the administrator of the estate: (SA) Inheritance (Family Provision) Act 1972 s 8(6). 7 In Queensland and Tasmania, an application on behalf of a minor or a mentally incompetent person may be treated as having been made within the time limit if the directions from the court as to whether to make an application have been sought within the time limit: (QLD) Succession Act 1981 s 41(7) (TAS) Testators Family Maintenance Act 1912 s 3(5). In Queensland, an application may be treated as an application on behalf of all persons who might apply: (QLD) Succession Act 1981 s 41(6). In South Australia, where an application has been made in time the court may permit the joinder of further applicants at any time prior to the final determination of the proceedings, if satisfied that it is just and expedient to do so: (SA) Inheritance (Family Provision) Act 1972 s 8(7). In Western Australia, an application may be similarly treated and for the purpose of limitation is treated as an application on behalf of all persons on whom notice of an application is served and all persons whom the court directed must be represented by persons or on whom the notice of application is served: (WA) Inheritance (Family and Dependants Provision) Act 1972 s 12(2). The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-6990] Extensions of time limits In all jurisdictions, the court has the power to extend the time limit for making an application.1 Each case for an extension of time must be considered by the court on its own merits.2 The onus of proof lies on the applicant. 3 In several jurisdictions there is no power to extend the time for the making of the application after the estate has reached a point of distribution.4 Where no injustice or hardship is done to the beneficiaries of the estate, then the court will usually grant an extension of time in which to make an application.5 Factors to be taken into account by the court in considering whether to grant an extension of time include: (1) the strength of the claim by the applicant for relief;6 (2) the time duration of the delay;7
(3) the amount of the estate which remains undistributed at the time the application for an extension is made;8 (4) the degree to which the ignorance of the right to apply is excusable;9 (5) the motives of the applicant in applying for an extension of time;10 and (6) whether a refusal to extend the time would leave the plaintiff without redress against anybody.11 Notes 1 (ACT) Family Provision Act 1969 s 9(2) (NT) Family Provision Act 1970 s 9(2) (NSW) Succession Act 2006 s 58(2) (QLD) Succession Act 1981 s 41(8) (SA) Inheritance (Family Provision) Act 1972 s 8(2) (TAS) Testators Family Maintenance Act 1912 s 11(2) (VIC) Administration and Probate Act 1958 s 99 (WA) Inheritance (Family and Dependants Provision) Act 1972 s 7(2)(b). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972. 2 Re Guskett (decd) [1947] VLR 212 at 214; [1947] ALR 263 per Herring CJ; Re Dun (decd) (1956) 56 SR (NSW) 181 at 182; 73 WN (NSW) 99 per Myers J; Re Barry (decd); Circosta v Executor Trustee & Agency Co of South Australia Ltd (1974) 9 SASR 439 at 445 per Zelling J; Re Wherrett [1963] Tas SR 178 at 180 per Crisp J; Re Nassim (decd) [1984] VR 51 at 55 per Nicholson J.3 Coffey v Bennett [1961] VR 264 at 265 per Sholl J; Re Cuskett [1947] VLR 212 at 214 per Herring CJ; Re Marland [1957] VR 338 .4 In South Australia, Tasmania and Victoria, an application for an extension of time must be made before the final distribution of the estate: (SA) Inheritance (Family Provision) Act 1972 s 8(4) (TAS) Testators Family Maintenance Act 1912 s 11(4) (VIC) Administration and Probate Act 1958 s 99. In the Australian Capital Territory and the Northern Territory, the application must be made before the estate has been lawfully and fully distributed:
(ACT) Family Provision Act 1969 s 9(4) (NT) Family Provision Act 1970 s 9(4). In Queensland, the order may only be made out of assets remaining: Re Lowe (decd) [1964] QWN 80. In New South Wales and Western Australia, there is no similar restriction: see [395-7195] (distributed estates) and (WA) Inheritance (Family and Dependants Provision) Act 1972 ss 7(3), 8, 9; (WA) Trustees Act 1962 s 65(8). 5 Re Ruttie (decd); Ruttiev Saul [1969] 3 All ER 1633; [1970] 1 WLR 89 . The court may grant an extension where: (1) the applicant was unaware of his or her rights to apply (Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 505; [1956] ALR 739; (1956) 30 ALJ 231 per Dixon CJ; Re Barrot [1953] VLR 308; [1953] ALR 634 ; In the Will of OConnor [1931] QWN 39 ; Re Barry (decd); Circosta v Executor Trustee & Agency Co of South Australia Ltd (1974) 9 SASR 439 ; Re Claverie (decd) [1970] 2 NSWR 380; (1970) 91 WN (NSW) 858 ; Re Nelson [1961] QWN 7 ; Re Lawrence [1973] Qd R 201 at 202 per Williams J (the parents knowledge of a right to apply is not imputed to the child)); (2) the applicant is aware of his or her rights but can not afford to pursue them (Coffey v Bennett [1961] VR 264 ); (3) the parties exceeded the limitation period because of negotiations (Re Salmon (decd); Coard v National Westminster Bank Ltd [1981] Ch 167; [1980] 3 All ER 532 at 537; [1980] 3 WLR 748 per Megarry VC; Amos v Amos [1966] VR 442 ); (4) the estate is substantially undistributed and the delay is short and excusable (Re Wherrett [1963] Tas SR 178 at 180 per Crisp J); or (5) the applicant was under a disability (Re Walker (decd) [1967] VR 890 at 891 J; Re Lawrence [1973] Qd R 201 ). per Lush
However, consider Tester v Tester [2006] WASC 134; BC200605181 at [53] per Newnes M (it is not the case that the question of delay is irrelevant unless someone can demonstrate that they would be prejudiced if time were extended). See also (NSW) Succession Act 2006 s 58(2) (sufficient cause for the delay must be shown). 6 Re Terlier [1959] QWN 5 ; Re Nassim (decd) [1984] VR 51 . This is not enough of itself to justify an extension: Re Guskett (decd) [1947] VLR 212; [1947] ALR 263 . See also Ashhurst v Moss (2006) 14 VR 291; [2006] VSC 287; BC200605895 . Justice was the paramount consideration and to deny a person an extension of time in the face of a strong substantive claim could amount to an injustice: Groser v Equity Trustees Ltd (2007) 16 VR 101; [2007] VSC 27; BC200700824 at [38] per Gillard J.7 Shannon v Public Trustee [1970] VR 876 ; Re Traeger (decd) [1948] SASR 248 . If negotiations were commenced within time and ran out while
discussions were taking place, this might encourage an extension of time being granted. If negotiations were initiated after the time had expired without the time limit point being taken, this too may aid the plaintiff: Beattie v Beattie [2005] WASC 85; BC200503190 at [3] per Sanderson M.8 Re Wherrett [1963] Tas SR 178 at 180 per Crisp J.9 Re Prakash [1981] Qd R 189 ; Brown v Holt [1961] VR 435 ; Re Traeger (decd) [1948] SASR 248 .10 Re Magson [1983] NZLR 592 at 598 per Cooke J, CA(NZ). If the delay in making the application is due to a solicitors oversight, this does not necessarily warrant an extension of time: Charles v Charles (unreported, SC(NSW), Young J, No 3302/1986, 25 March 1988, BC8802091) (extension of time should not be granted merely because of the inattention or incompetence of the solicitor). However, see Farrell v Allum [2007] WASC 265; BC200709662 at [7] per McKechnie J (time between the end of the limitation period and the application was not excessive, it was clear that at all times the plaintiff wished to pursue an action and the failure to bring it within time was due to her solicitor. It would not be fair to visit the results of the solicitor's inaction on the plaintiff.)11 Beattie v Beattie [2005] WASC 85; BC200503190 at [6] per Sanderson M. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter [395-6995] Grounds for refusal to extend time The refusal by the court in its discretion to extend the time for making an application is distinguished from the statutory limit to the discretion itself.1 An extension of time is unlikely to be granted if: (1) the success of the application for relief is improbable or will be sure to fail on its merits;2 (2) it would be prejudicial to the other beneficiaries;3 (3) the value of the estate has increased since the death of the deceased and the applicant argues that his or her financial position has deteriorated;4 (4) the applicant is aware of his or her rights but fails to take action for a substantial period of time due to neglect;5 (5) there are few or no assets left in the estate or the estate has been completely distributed making an extension of time pointless;6 or (6) there is unconscionable conduct by the applicant.7 There is no limit to the length of the extension which the court may grant in the appropriate circumstances.8 Notes 1 As to the statutory limit to extension of time see [395-7000].2 Ball v Newey (1988) 13 NSWLR 489 at 493; BC8701304 per Samuels JA, CA(NSW); Re Walker (decd) [1967] VR 890 ; Re
Terlier [1959] QWN 5 ; Re Dun (decd) (1956) 56 SR (NSW) 181; 73 WN (NSW) 99.3 Re Newton (1959) 76 WN (NSW) 479 .4 Re Lauer [1984] VR 180 .5 Re Guskett (decd) [1947] VLR 212; [1947] ALR 263 ; Re Dun (decd) (1955) 56 SR (NSW) 181 at 183; 73 WN (NSW) 99 per Myers J.6 Re Walker (decd) [1967] VR 890 ; Re Donkin (decd); Riechelmann v Donkin [1966] Qd R 96 , SC(QLD), Full Court; Re Terlier [1959] QWN 5 ; Re Michel [1939] QWN 49 .7 Re Dun (decd) (1955) 56 SR (NSW) 181 at 183; 73 WN (NSW) 99 per Myers J.8 Easterbrook v Young (1977) 136 CLR 308; 13 ALR 351; 51 ALJR 456 (14 years); Re Claverie (decd) [1970] 2 NSWR 380; (1970) 91 WN (NSW) 858 (16 years). The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7000] Statutory limit to extension of time In the Australian Capital Territory, the Northern Territory, South Australia, Tasmania and Victoria, the court has no discretion to extend the time limit for the making of applications once the estate is finally or fully distributed.1 There is a divergence of views as to when an estate is finally distributed. With the exception of Queensland,2 the normal rule as to the termination of executorship and commencement of trusteeship in relation to assets in the hands of the personal representative3 has been held not to apply to family provision proceedings. Notes 1 (ACT) Family Provision Act 1969 s 9(4) (lawfully and fully distributed) (NT) Family Provision Act 1970 s 9(4) (lawfully and fully distributed) (SA) Inheritance (Family Provision) Act 1972 s 8(4) (final distribution) (TAS) Testators Family Maintenance Act 1912 s 11(4) (final distribution) (VIC) Administration and Probate Act 1958 s 99 (final distribution). 2 Re McPherson [1987] 2 Qd R 394 .3 Easterbrook v Young (1977) 136 CLR 308; 13 ALR 351; 51 ALJR 456 . For New South Wales this is provided by statute: (NSW) Succession Act 2006 s 63(4).
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(B) Personal Representatives The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7005] Assets The personal representative1 is under a duty not to make a partial or total distribution of the deceased estate within the relevant time limit for the making of applications2 if the personal representative has notice of a pending family provision claim.3 While the representative is able to discharge the debts and other liabilities of the estate,4 the representative must preserve the net estate pending the hearing of the application.5 An injunction may lie to preserve the estate.6 The personal representative may be personally liable for any loss suffered by the applicant if the personal representative makes a distribution while a family provision application is on foot.7 In New South Wales, personal representatives and executers who distribute an estate are protected from liability if they give notice before doing so,8 and in other circumstances, such as where a distribution is made to satisfy the immediate needs of a person who is partially or wholly dependent on the deceased.9 Notes 1 As to trusts and powers and personal representatives see [395-4450]-[395-4560].2 As to time limits see [395-6985]-[395-7000].3 Re Jones; Noonan v Jones [1978] VR 272 ; Re Simson (decd); Simson v National Provincial Bank Ltd [1950] Ch 38 at 43; [1949] 2 All ER 826 per Vaisey J. For statutory exceptions in the case of New South Wales, see notes 8 and 9 below.4 Re Simson (decd); Simson v National Provincial Bank Ltd [1950] Ch 38 at 43; [1949] 2 All ER 826 per Vaisey J; In the Estate of Gough (decd); Gough v Fletcher (1973) 5 SASR 559 at 566 per Zelling J.5 Re Crowley [1949] St R Qd 189 at 192; (1949) 15 ABC 19 per Stanley J. However, the personal representative should not delay in the distribution of the estate, if he or she merely has a suspicion that a family provision claim will arise unexpectedly, especially where the time limit for such an application has already expired. Compare Packo v Packo (1989) 17 NSWLR 316 (injunction to preserve the estate).6 In the Estate of Gough (decd); Gough v Fletcher (1973) 5 SASR 559 ; Packo v Packo (1989) 17 NSWLR 316 . In New South Wales this is provided by statute: (NSW) Succession Act 2006 s 62(3).7 Re Winwood [1959] NZLR 246 ; Re Simson (decd); Simson v National Provincial Bank Ltd [1950] Ch 38; [1949] 2 All ER 826 ; Guardian Trust and Executors Co of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115 at 127; [1942] 1 All ER 598 per Lord Romer; Re Singer (unreported, SC(QLD), Carter J, OS No 1079/1987, 17 June 1988, BC8802419).8 See (NSW) Succession Act 2006 s 93. This is the case even where written notice of an application has been received, if the distribution was made in compliance with ibid s 93(1) by the legal representative 12 months or later after the date of death, unless the legal representative receives written notice that the application has been commenced in the court or is served with a copy of the application before making the distribution: ibid s 94(4), 94(5).9 Ibid s 94(1). Further, a person is prohibited from bringing action against a
legal personal representative where the person has either consented to the distribution or advised in writing that he or she will not make an application for family provision that would affect the proposed distribution: ibid s 94(3). The paragraph below is current to 16 May 2012 For new cases see ACL Reporter [395-7010] Position with respect to proceedings The representatives duty is to defend the estate and to uphold the will or the distribution on intestacy.1 The personal representative should either oppose or compromise the claim.2 Separate representation for the beneficiaries is not encouraged.3 As the representatives duty is to assist the court4 and to place all relevant evidence before the court,5 separate representation should be unnecessary.6 The court must be fully informed by the personal representative even if this means providing information that would support the applicants case.7 Affidavits must be filed by the personal representative for those beneficiaries who are not separately represented,8 and the personal representative must do what the beneficiaries require him or her to do in opposing the application for family provision.9 Costs may be forfeited by a beneficiary who insists on being separately represented when no special circumstances exist.10 Notes 1 Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639 at 654; 92 FLR 67; 12 Fam LR 367 per Kirby P, CA(NSW); Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503; (1973) 92 FLR 67 per Hardie JA, CA(NSW) (personal representative is the defender of the will); Re Klease [1972] QWN 44 ; Re Burton (decd) [1958] QWN 27 ; Shannon v Shannon (unreported, CA(NSW), Kirby P, Samuels and Meagher JJA, No 40674/1989, 31 May 1991, BC9101939).2 Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503; (1973) 92 FLR 67 per Hardie JA, CA(NSW); In the Will of Lanfear (decd) (1940) 57 WN (NSW) 181 . The opposition by the personal representative must be real: Re Klease [1972] QWN 44 ; Re Newell (decd) (1932) 49 WN (NSW) 181 (not sufficient merely to submit to the order of the court while giving details of the estates assets and liabilities).3 In the Will of Lanfear (decd) (1940) 57 WN (NSW) 181 at 183 per Williams J.4 Re Pope (decd); Pope v Public Trustee (1975) 11 SASR 571 ; Re Newell (decd) (1932) 49 WN (NSW) 181 .5 Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503; (1973) 92 FLR 67 per Hardie JA, CA(NSW); Re Hall (decd) (1959) SR (NSW) 219 at 226; 76 WN (NSW) 288 per Owen J, SC(NSW), Full Court. Information may include: (1) the testators reasons for providing or not providing for relief for a specific person (Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503; (1973) 92 FLR 67 per Hardie JA, CA(NSW)); (2) the financial needs of a beneficiary (Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503; (1973) 92 FLR 67 per Hardie JA, CA(NSW)); (3) the circumstances relating to any specific gift in the will (In the Will of Lanfear (decd) (1940) 57 WN (NSW) 181 at 183 per Williams J); and (4)
details of the applicants conduct towards the testator which resulted in the exclusion or limitation of any relief or benefit for him or her (see [395-6910]). 6 In the Will of Lanfear (decd) (1940) 57 WN (NSW) 181 at 183 per Williams J; Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503; (1973) 92 FLR 67 per Hardie JA, CA(NSW). The circumstances in which separate representation may be appropriate include: (1) large bequests are to be conferred upon the beneficiaries (Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503; (1973) 92 FLR 67 per Hardie JA, CA(NSW); Re Bowcock (decd) [1968] 2 NSWR 700 at 704 per Else-Mitchell J; In the Will of Lanfear (decd) (1940) 57 WN (NSW) 181 at 183 per Williams J); (2) the executors are themselves beneficiaries and they wish to apply for family provision (Re Burton (decd) [1958] QWN 27 ; In the Will of Lanfear (decd) (1940) 57 WN (NSW) 181 at 183 per Williams J); or (3) where there is a conflict of interest between the beneficiaries (Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503; (1973) 92 FLR 67 per Hardie JA, CA(NSW)). 7 Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639 at 654; 92 FLR 67; 12 Fam LR 367 per Kirby P, CA(NSW) (information to be provided even where personal representative opposes applicants claim).8 Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639 at 654; 92 FLR 67; 12 Fam LR 367 per Kirby P, CA(NSW); Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503; (1973) 92 FLR 67 per Hardie JA, CA(NSW).9 Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 504; (1973) 92 FLR 67 per Hardie JA, CA(NSW).10 Re Burton (decd) [1958] QWN 27 ; Fox v Burvill (1955) 92 CLR 334; [1955] ALR 849; (1955) 29 ALJ 414 ; In the Will of Lanfear (decd) (1940) 57 WN (NSW) 181 . Compare Re Sharp [1923] St R Qd 102 at 106; [1923] QWN 18 per MacNaughton J (all affected parties to the family provision application should be given the opportunity of being heard).
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(C) Procedure The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7020] Evidence of the deceased Statements by a testator as to the conduct of a beneficiary is hearsay and is not admissible to prove the facts stated.1 However, such statements are admissible to prove the state of mind of the testator as original evidence of why he or she disposed of his or her estate in a particular manner.2 In certain situations inadmissible evidence, having been admitted, may be treated as evidence.3 In New South Wales and Tasmania, the family provision legislation provides for the admissibility of a statement made by a deceased person as evidence of any fact stated, of which direct oral evidence by the deceased person would, if he or she were able to give evidence, be admissible.4 In the Australian Capital Territory and the Northern Territory, the court may have regard to the testators reasons, so far as they are ascertainable, and the court will admit as evidence a statement signed by the testator that includes the reasons for making or not making provision for certain persons.5 In Victoria, a court may accept any evidence of the deceased persons reasons for making the dispositions in his or her will and for not making proper provision for the applicant, whether or not the evidence is in writing.6 Notes 1 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; 23 ALR 321 at 334-5; 53 ALJR 249 per Gibbs J.2 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; 23 ALR 321 at 334-6; 53 ALJR 249 per Gibbs J (disapproving statements in Re Ruxton; Ruxton v Trustees Executors and Agency Co Ltd [1946] VLR 334 at 335-6 per Fullager J; Re Paulin [1950] VLR 462 at 473; [1950] ALR 503 ; Re Buckland (decd) (No 2) [1967] VR 3 at 5-6) .3 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; 23 ALR 321 at 337; 53 ALJR 249 per Gibbs J (for example, where one party by his or her conduct at the trial has led the other to believe that evidence, although hearsay, may be treated as evidence of the facts stated, and the other in reliance on that belief has refrained from adducing proper evidence, the former party is precluded from objecting to the use of the evidence to prove the facts stated). See also Tausz v Elton [1974] 2 NSWLR 163 at 171 per Mahoney J (function to be served by admitting deceaseds statement; once before the court it should be accepted as probative of the facts stated). The circumstances in which hearsay evidence, once admitted, is evidence of the facts stated has not been definitively determined: Walker v Walker (1937) 57 CLR 630; 18 ALR 313; 11 ALJ 201 ; McLennan v Taylor [1966] 2 NSWR 685; (1966) 85 WN (Pt 1) (NSW) 525 .4 (NSW) Succession Act 2006 ss 60(2)(j), 100. In Purnell v Moon (1991) 22 NSWLR 499 it was held that (NSW) Family Provision Act 1982 (repealed) s 32 (now replaced by (NSW) Succession Act 2006 s 100) applied only to a hearsay statement of the deceased person whose estate is in question. (TAS) Testators Family Maintenance Act 1912 s 8A. The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act, which renames the principal Act the (WA) Family Provision Act 1972, inserts ibid s 21A, which provides similarly to New South Wales and Tasmania concerning admissibility of statements by a
deceased person. There are no equivalent provisions in the other jurisdictions. 5 (ACT) Family Provision Act 1969 s 22 (NT) Family Provision Act 1970 s 22. There are no equivalent provisions in the other jurisdictions. 6 (VIC) Administration and Probate Act 1958 s 94(c). There are no equivalent provisions in the other jurisdictions. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7025] Provision awarded to persons declared bankrupt The right to bring proceedings for family provision is a personal right and does not vest in the Official Trustee in Bankruptcy.1 However, if a person who is an undischarged bankrupt is awarded property or money under a family provision order, the Official Trustee may claim upon it.2 If such a person is awarded property or money under a family provision order after his or her bankruptcy is discharged, the Official Trustee cannot claim upon it.3 Notes 1 Coffey v Bennett [1961] VR 264 at 266-7 per Sholl J.2 Coffey v Bennett [1961] VR 264 at 266-7 per Sholl J. See also (CTH) Bankruptcy Act 1966 s 58(1). As to bankruptcy generally see bankruptcy.3 McLeod v Johns [1981] 1 NSWLR 347 .
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(D) Costs The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7030] General principles Costs lie within the discretion of the court. 1 Where an application is successful, the court will usually order that the parties costs are paid on a solicitor and client basis from the deceaseds estate.2 The court will not usually order costs where an application is unsuccessful.3 However, the personal representatives costs will usually be paid out of the estate.4 In some jurisdictions, costs may be paid out of the estate even if the application is unsuccessful.5 Where the court considers that the application should not have been brought, the applicant will pay the respondents costs.6 The court will not usually order costs where the unsuccessful application involves the interpretation of legislation.7 In some instances the question whether an unsuccessful applicant will be liable for costs will depend on the reasonableness of the application.8 In New South Wales, orders may be made to cap costs in circumstances including, but not limited to, cases where the value of the estate is less than $500,000.9 On an appeal the unsuccessful party may be ordered to pay costs.10 The court is prohibited from making an order that all or part of the applicants costs be paid out of the notional estate of the deceased person unless the court makes a family provision order in favour of the applicant.11 Notes 1 The following legislation includes cost provisions: (NSW) Succession Act 2006 s 99(1) (SA) Inheritance (Family Provision) Act 1972 s 9(8) (TAS) Testators Family Maintenance Act 1912 s 3(1) (VIC) Administration and Probate Act 1958 s 97(6) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 14(6). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972. There are no equivalent provisions in the other jurisdictions. 2 In the Will of Mailes [1908] VLR 269; (1908) 14 ALR 181; 29 ALT 263 ; Ellis v Leeder (1951) 82 CLR 645 at 656; [1951] ALR 708; (1951) 25 ALJ 414 per Dixon, Williams and Kitto JJ (reversed on other grounds Leeder v Ellis (1952) 86 CLR 64; [1952] ALR 1198; (1953) 26 ALJR 482; BC5200270 , PC); Re Bowcock (decd); Bowcock v Bowcock [1969] 2 NSWR 755; (1969) 90 WN (Pt 1) (NSW) 721 at 730 , CA(NSW); Hughes v National Trustees, Executors and
Agency Co of Australasia Ltd (1979) 143 CLR 134; 23 ALR 321; 53 ALJR 249 ; Re McCaffrey (decd); Hay v Elders Trustee and Executor Co Ltd (1982) 29 SASR 582 ; Re Cobb [1989] 1 Qd R 522 . See also In the Will of Lanfear (decd) (1940) 57 WN (NSW) 181 (applicants costs from a legacy on a party and party basis). As to costs generally see practice and procedure [325-9400]-[325-9730]. See further Re Fulop (decd); Fulop v Public Trustee (1987) 8 NSWLR 679 ; Luciano v Rosenblum (1985) 2 NSWLR 65 .3 Re Lago (decd) [1984] VR 706 ; Re Milanovic [1973] Qd R 205 ; Re Richardson (decd) (1920) SALR 24.4 Krause v Sinclair [1983] 1 VR 73; (1983) FLC 78-171 ; Re Nielsen (decd) [1968] Qd R 221 . As to personal representatives see [395-7005]-[395-7010].5 Re Lack [1981] Qd R 112 ; Re Bodman [1972] Qd R 281 ; Re Shannon (1935) 35 SR (NSW) 516; 52 WN (NSW) 171 .6 Johnston v Johnston (1987) 11 NSWLR 38 ; Re Burke [1940] QWN 33 (applicant provided misleading information); McEvoy v Public Trustee (1989) 16 NSWLR 92 (no right to apply due to a technicality); Re McPherson [1987] 2 Qd R 394 (technicality).7 Re Prakash [1981] Qd R 189 ; Re De Feu [1964] VR 420 . Compare Re Lack [1981] Qd R 112 (costs allowed from estate); McEvoy v Public Trustee (1989) 16 NSWLR 92 (applicant ordered to pay respondents costs); Re McPherson [1987] 2 Qd R 394 (applicant paid respondents costs).8 Bowyer v Wood (2007) 99 SASR 190; 250 LSJS 433; [2007] SASC 327; BC200707701 at [67] per Debelle J.9 (NSW) Succession Act 2006 s 99; (NSW) Practice Note, SQ Eq 7 (Family Provision).10 Re McIntyre [1993] 2 Qd R 383 ; Solomon v Hatti (unreported, CA(NSW), Kirby P, Hope and McHugh JJA, No 386 of 1985, 10 February 1987, BC8701598). See also Black v McIntyre (unreported, SC(QLD), Full Court, OS No 958/90, 13 September 1991) (party and party basis); Dun v Dun (1959) 100 CLR 361; [1959] AC 272; (1959) 33 ALJR 42 (solicitor and client basis); Barrett v Thurling [1984] 2 NSWLR 683 , CA(NSW); Boyce v Humphreys (1974) 48 ALJR 229 .11 (NSW) Succession Act 2006 s 78(2). See [395-7205].
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(E) Appeals The paragraph below is current to 16 May 2012 For new cases see ACL Reporter [395-7035] General principles The appeal court is not at liberty to substitute its own discretion for that of the court of first instance.1 For an appeal to be successful, the court at first instance must have been in error as to the facts or the law.2 The appeal court must consider whether the
magnitude and nature of the provision reflected an erroneous standard of what is proper provision in the circumstances of the case.3 The court must show restraint before disturbing the exercise of discretion of the first instance decision maker.4 Time limits as to appeal are provided for in every jurisdiction.5 The personal representative6 must appear, regardless of whether the other party requests the non-appearance of the personal representative.7 Notes 1 Re Hatte [1943] St R Qd 1 ; Charles Osenton and Co v Johnston [1942] AC 130 at 138; [1941] 2 All ER 245; [1942] WN 75 per Viscount Simon LC.2 See practice and procedure [32511015] note 1. The presumption that the finding of the trial judge was correct on the facts must be rebutted by the appellant: Williams v Johnson (decd) [1937] 4 All ER 34 at 36 per Sanderson J, PC. In New South Wales, an appeal as of right lies from the decision of a Master to the Court of Appeal: McKenzie v Baddeley (unreported, CA(NSW), Kirby P, Mahoney and Priestly JJA, No 40299 of 1991, 1 July 1991, BC9101389).3 As to grounds for appeal or a new trial generally see practice and procedure [325-11215]-[325-11430]. See also Cooper v Dungan (1976) 9 ALR 93; 50 ALJR 539 ; Sampson v Sampson (1945) 70 CLR 576 at 586; 19 ALJ 244 ; House v R (1936) 55 CLR 499 at 504-5; 10 ALJ 202 per Starke J (appellant needs a strong and cogent case) (applied in Carroll v R (2009) 254 ALR 379; (2009) 83 ALJR 579; [2009] HCA 13; BC200902879 ); Worladge v Doddridge (1957) 97 CLR 1 at 11; [1957] ALR 691 per Williams J; Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 511; [1956] ALR 739; (1956) 30 ALJ 231 per Dixon CJ (appellant must prove trial judges exercise of discretion was erroneous); Re Gear (decd) [1964] Qd R 528 at 532, 533 per Stable J; Lovell v Lovell (1950) 81 CLR 513 at 526; [1950] ALR 944; (1950) 24 ALJ 426 per McTiernan J; In the Will of Gilbert (decd) (1946) 46 SR (NSW) 318 at 323; 63 WN (NSW) 176 per Jordan CJ (inferences drawn from facts by trial judge in exercise of discretion must be clearly incorrect); Malouf v Prince [2009] NSWCA 159; BC200905420 ; Watkins v Christian [2009] QCA 101; BC200903114 ; Hutchinson v Elders Trustee and Executor Co Ltd (1982) 8 Fam LR 267 at 269 per Walters J, SC(SA); McCosker v McCosker (1957) 97 CLR 566 at 576; 31 ALJ 779 per Dixon CJ (miscarriage of justice); White v Barron (1980) 144 CLR 431; 30 ALR 51; 54 ALJR 333; BC8000077 ; Hunter v Hunter (1987) 8 NSWLR 573 ; Golosky v Golosky (unreported, CA(NSW), Kirby P, Handley and Cripps JJA, No 40012/91, 5 October 1993, BC9302134). As to the nature of appeal see practice and procedure [325-11105]-[325-11165].4 Golosky v Golosky (unreported,CA(NSW), Kirby P, Handley and Cripps JJA, No 40012/91, 5 October 1993, BC9302134); Singer v Berghouse (No 2) (1994) 181 CLR 201; 123 ALR 481; 68 ALJR 653; BC9404642 .5 As to the time for appeal and commencement of appeal see generally practice and procedure [325-11735], [325-11740]. See also Jess v Scott (1986) 12 FCR 187; 70 ALR 185; 14 IR 341 ; Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 , CA(NZ) (inefficiency of legal practitioner may provide grounds for an extension in which to lodge an appeal). As to legal practitioners generally see legal practitioners [250-1].6 As to personal representatives see [395-7005], [395-7010].7 Re Raybould (decd); Raybould v Bale [1963] Qd R 188; [1961] QWN 61 .
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(6) ORDERS
The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7090] General In all jurisdictions except New South Wales, the court has a wide power to make an order under the family provision legislation for such provision as it thinks fit.1 In New South Wales, the court has the power to make any such provision as ought to be made.2 In all jurisdictions, the family provision legislation expressly allows the court to make an order in the form of a lump sum, periodical payment or other payment.3 The court has a wide discretion in respect of the terms of an order for periodical payment.4 Such payments may be indexed,5 and automatically cease upon the death of the person benefiting from the payments.6 In New South Wales, the court may also make provision through: (1) specified existing or future property;7 (2) an absolute or limited interest in property;8 (3) setting aside property as a class fund for the benefit of more than one person;9 or (4) any other manner which the court thinks fit.10
In Tasmania, the court may make an order for provision by way of a life interest or lesser interest in a dwelling-house, including a house purchased by order of the court from assets of the estate.11 In Western Australia, the court may make an order for family provision under the (WA) Trustees Act 1962,12 rather than the (WA) Inheritance (Family and Dependants Provision) Act 1972, if the deceaseds estate has been wholly or partly distributed to beneficiaries.13 Notes 1 (ACT) Family Provision Act 1969 s 8(1) (NT) Family Provision Act 1970 s 8(1) (QLD) Succession Act 1981 s 41(1) (SA) Inheritance (Family Provision) Act 1972 s 7(1) (TAS) Testators Family Maintenance Act 1912 s 3(1) (power to make an order as the court thinks proper) (VIC) Administration and Probate Act 1958 s 91 (WA) Inheritance (Family and Dependants Provision) Act 1972 s 6(1). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972. 2 (NSW) Succession Act 2006 s 59(2).3 (ACT) Family Provision Act 1969 s 15(2) (NT) Family Provision Act 1970 s 15(1) (NSW) Succession Act 2006 s 65(2)(a), 65(2)(b), 65(2)(f) (QLD) Succession Act 1981 s 41(2)(b) (SA) Inheritance (Family Provision) Act 1972 s 7(6) (TAS) Testators Family Maintenance Act 1912 s 3(2)(a) (lump sum payment only) (VIC) Administration and Probate Act 1958 s 96(3) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 6(4). See also Worladge v Doddridge (1957) 97 CLR 1 at 18, 19; [1957] ALR 691 per Kitto J.
4 For example, the commencement date of payments may vary. See Re ONeill (1917) 34 WN (NSW) 72 at 73 per Simpson CJ; Borthwick v Perpetual Trustee Co Ltd (1958) SR (NSW) 151; 76 WN (NSW) 694 at 700 ; Srhoj v Marian [1965] WAR 61 at 64 per Hale J; In the Estate of Bridges (decd) (1975) 12 SASR 1 at 4-5 per Bray CJ (payment from date of instituting proceedings or from date order made); Re Liston (decd) [1957] VR 50 at 52-3 per Lowe J (payment to commence 15 months after order made).5 White v Barron (1980) 144 CLR 431 at 452; 30 ALR 51; 54 ALJR 333; BC8000077 per Aickin J; Goodman v Windeyer (1980) 144 CLR 490 at 503-4 per Gibbs J, 511-12 per Aickin J; 31 ALR 23; 54 ALJR 470; BC8000095 .6 Re Shannon (1935) 35 SR (NSW) 516; 52 WN (NSW) 171 .7 (NSW) Succession Act 2006 s 65(2)(c).8 Ibid s 65(2)(d). See, for example, Pata v Vambuca [2002] NSWSC 167; BC200200799 (order for a legacy and life estate in house to nephew; executor directed to
expend $240,000 to renovate the house).9 (NSW) Succession Act 2006 s 65(2)(e).10 Ibid s 65(2)(f). There are no equivalent provisions in the other jurisdictions. 11 (TAS) Testators Family Maintenance Act 1912 s 3(2)(b), 3(2)(c), 3(3). There are no equivalent provisions in the other jurisdictions. 12 (WA) Trustees Act 1962 s 65.13 (WA) Inheritance (Family and Dependants Provision) Act 1972 s 8(1). There are no equivalent provisions in the other jurisdictions. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7095] Interim orders In all jurisdictions except New South Wales, interim orders1 for relief cannot be made by the court under the family provision legislation, as orders made pursuant to such legislation are usually final orders determining the applicants right to family provision.2 However, interim orders have been granted where: (1) there is a substantial asset in the estate of the deceased which has not been precisely valued;3 or (2) there is consent from all parties to the making of an interim order.4 In New South Wales, legislation expressly permits the making of interim orders by the court in specified circumstances.5 Such orders display the desire of the court to go as far as it can in providing for an applicant who is suffering hardship while the proceedings are on foot or to make provision while some outstanding factors come to the courts attention before a final order is made.6 Notes 1 Interim orders are not orders which make a complete and final provision for an applicant, but they allow the court to increase, decrease or vary the provision which has already been made to the applicant when the final application is determined: Re Piper (decd) and the Testators Family Maintenance and Guardianship of Infants Act, 1916-1954 (1960) SR (NSW) 328 at 329 per Myers J.2 Re Piper (decd) and the Testators Family Maintenance and Guardianship of Infants Act, 1916-1954 (1960) SR (NSW) 328 at 330 per Myers J (allowing extra time for applicant to determine assets value); Re Yates (1955) 72 WN (NSW) 497 ; Re Porteous (decd) [1949] VLR 383 at 387; [1950] ALR 89 , SC(VIC), Full Court; Re Breen (decd) [1933] VLR 455; [1933] ALR 500 . See also Re Butler [1948] VLR 434 at 435; [1948] 2 ALR 593 per Lowe J (court prefers to make final order). Compare Re Blakemore (decd) and the Testators Family Maintenance Act [1967] 1 NSWR 10 ; In the Will of Jolliffe [1929] St R Qd 189 at 197 per Henchman J; Re White [1965] NSWR 1035 at 1038 per McLelland CJ.3 Re Blakemore (decd) and the
Testators Family Maintenance Act [1967] 1 NSWR 10 at 11 per McLelland CJ.4 Re Shelley (decd); Shelley v Public Trustee [1937] NZLR 342; [1937] GLR 200 , SC(NZ), Full Court.5 (NSW) Succession Act 2006 s 62 (the court must be of the opinion that the final order will be equal or greater than the provision made in the interim order). As to the classes of possible interim orders see Young v Salkeld (1985) 4 NSWLR 375 at 377 per Young J.6 Young v Salkeld (1985) 4 NSWLR 375 at 379 per Young J. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7100] Interim maintenance In most jurisdictions, the personal representative1 may provide interim maintenance to various classes of dependants of the deceased.2 In Queensland, Victoria and Western Australia, a distribution may be made where the potential applicant consents to it in writing.3 Notes 1 As to the personal representative see [395-7005], [395-7010].2 (ACT) Family Provision Act 1969 s 20(2) (includes education support) (NSW) Succession Act 2006 s 94 (to an eligible person, wholly or substantially dependent on the deceased, to provide what is immediately necessary for maintenance or education) (NT) Family Provision Act 1970 s 20(2) (includes education support) (QLD) Succession Act 1981 ss 44(1), 44(2) (maintenance and support to the spouse or children of the deceased only, not including education support), 49A (maintenance, support or education to a dependent beneficiary) (VIC) Administration and Probate Act 1958 s 99A(1) (maintenance and support to the spouse or children of the deceased only, not including education support) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 11 (limits the support and maintenance to those things immediately necessary for the maintenance of dependants). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972. There are no equivalent provisions in the other jurisdictions. 3 (QLD) Succession Act 1981 s 44(2)(a) (VIC) Administration and Probate Act 1958 s 99A(2)(a) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 20(4)(a). There are no equivalent provisions in the other jurisdictions. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter
To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7105] Consent orders Consent orders1 are usually not granted as the courts jurisdiction is to decide whether it considers that adequate provision has been made for the applicant and not to approve an agreement for provision reached by the parties.2 However, where the parties submit a consent order to the court, the court must look into the facts and circumstances of the parties to ascertain whether the consent order is appropriate and fair in all circumstances.3 In New South Wales, the court is expressly empowered to make a family provision order in terms of a consent order if it is presented to the court following mediation or on the advice of a lawyer.4 Notes 1 As to consent orders generally see practice and procedure [325-6720]-[325-6735].2 Re Archibald (decd) [1950] QWN 3 . Compare Re Pentland [1972] Tas SR (NC 27) 278.3 McMahon v McMahon (unreported, SC(NSW), Young J, 4328 of 1985, 2 August 1985, BC8500637).4 (NSW) Succession Act 2006 s 98. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7110] Conditional orders In all jurisdictions, the family provision legislation allows the court to impose any conditions it thinks fit on an order.1 However, the conditions must not breach common law rules, unless legislation expressly provides otherwise.2 The court may require the applicant to waive his or her existing rights.3 In the Australian Capital Territory, the Northern Territory and New South Wales, a condition may be attached to an order made in relation to the estate of a person who is presumed to be dead that if the person is subsequently found to be alive, restitution or restoration of the property must be made by the applicant.4 In Tasmania and Victoria, the court may impose conditions to prevent, restrict or defeat an alienation of, or charge on, the benefit of any provision made under the order.5 Notes 1 (ACT) Family Provision Act 1969 s 11 (NT) Family Provision Act 1970 s 11 (NSW) Succession Act 2006 s 65(1)(d) (QLD) Succession Act 1981 s 41(2)(a) (SA) Inheritance (Family Provision) Act 1972 s 7(4) (TAS) Testators Family Maintenance Act 1912 s 9(1)(d) (VIC) Administration and Probate Act 1958 s 96(2)
(WA) Inheritance (Family and Dependants Provision) Act 1972 s 6(3). The Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act renames the principal Act the Family Provision Act 1972. See, for example, Re Fletcher (decd); Fletcher v Usher [1921] NZLR 649; [1921] GLR 429 (abstention from the consumption of intoxicating liquor); Re Green (decd) (1911) 13 GLR 477 (condition that applicant obtain medical treatment). 2 In the Estate of Leahy (decd); Earl v Moses [1975] 1 NSWLR 246 at 251 per Bowen CJ.3 McGrath v Queensland Trustees Ltd [1919] St R Qd 169; [1919] QWN 34 (waiving rights against spouses estate); Re Wright [1966] Tas SR (NC 1) 287 (surrendering part of a superannuation payment to the estate).4 (ACT) Family Provision Act 1969 s 14 (NT) Family Provision Act 1970 s 14 (NSW) Succession Act 2006 s 67 There are no equivalent provisions in the other jurisdictions. 5 (TAS) Testators Family Maintenance Act 1912 s 8(2) (VIC) Administration and Probate Act 1958 s 96(2). There are no equivalent provisions in the other jurisdictions. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7115] Burden of orders In all jurisdictions except New South Wales, the burden of an order for family provision legislation falls on either the estate or the persons entitled to the estate in proportion to the value of their respective shares, unless the court otherwise indicates.1 In appropriate circumstances, the court may excuse or exonerate any persons share of the estate from the burden of a family provision order.2 In New South Wales, the burden of the order is to be determined at the discretion of the court,3 which usually means that it will fall upon the residue, or if insufficient, upon legacies rateably.4 Unless the court otherwise directs, an order for provision takes effect as if the provision was made by a codicil to the will or, where the deceased person died intestate, in the will of the deceased person.5 The burden of an order for family provision may be carried by the major beneficiary of the will who receives the bulk of the estate6 or it may fall upon a smaller beneficiary of the estate, 7 especially when this smaller beneficiary is a charity or a stranger who has enjoyed a close relationship with the testator and the beneficiary of the larger share of the estate is a widow or a widower.8 The court may consider gifts bestowed upon a beneficiary during the lifetime of the deceased when deciding the incidence of the order.9 The court has a discretion to order that the burden of relief fall upon those beneficiaries who have not yet had their shares distributed.10
Notes 1 (ACT) Family Provision Act 1969 s 11(2) (NT) Family Provision Act 1970 s 11(2) (QLD) Succession Act 1981 s 41(3) (SA) Inheritance (Family Provision) Act 1972 s 9(2) (TAS) Testators Family Maintenance Act 1912 s 10A(1) (VIC) Administration and Probate Act 1958 s 97(2) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 14(2). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and no day had been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972. There are no equivalent provisions in New South Wales. 2 (ACT) Family Provision Act 1969 s 11(2) (NT) Family Provision Act 1970 s 11(2) (NSW) Succession Act 2006 s 68 (QLD) Succession Act 1981 s 41(3) (SA) Inheritance (Family Provision) Act 1972 s 9(2) (TAS) Testators Family Maintenance Act 1912 s 10A(2) (VIC) Administration and Probate Act 1958 s 97(2) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 14(2). 3 (NSW) Succession Act 2006 s 65(1)(c).4 See, for example, Ahearn v Ahearn [1917] St R Qd 167; [1917] QWN 24 . If the value of the estate decreases, the applicants benefit may abate: Re Jennery (decd); Jennery v Jennery [1967] Ch 280; [1967] 1 All ER 691; [1967] 2 WLR 201 . Compare Union-Fidelity Trustee Co of Australia Ltd v Montgomery [1976] 1 NSWLR 134 (annuity awarded to applicant widow took priority over other legacies and did not abate).5 (NSW) Succession Act 2006 s 72.6 Shah v Perpetual Trustee Co (1981) 7 Fam LR 97 , SC(NSW); Re Theaker (decd) [1955] QWN 51 ; Re Norris [1953] Tas SR 32 ; Re Else; Trustees Executors and Agency Co Ltd v Else [1948] VLR 468; [1948] 1 ALR 133 ; Re Hood; Hood v Hood [1942] VLR 144; [1942] ALR 244 ; Dillon v Public Trustee of New Zealand [1941] AC 294 at 306, 307; [1941] 2 All ER 284; (1941) 165 LT 357 per Simon LC, PC; Re McNamara (decd) (1938) 55 WN (NSW) 180 ; In the Will of Jolliffe [1929] St R Qd 189 ; Ahearn v Ahearn [1917] St R Qd 167; [1917] QWN 24 .7 Re Johnston [1947] QWN 29 .8 Re Seery and the Testators Family Maintenance Act [1969] 2 NSWR 290; (1969) 90 WN (Pt 1) (NSW) 400 (reversed on another point Schaefer v Schuhmann [1972] AC 572; [1972-73] ALR 501; (1972) 46 ALJR 82; [1972] 1 All ER 621 , PC).9 Re Paulin [1950] VLR 462; [1950] ALR 503 .10 In the Will of OConnor [1931] QWN 39 . The paragraph below is current to 16 May 2012 For new cases see ACL Reporter
To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7120] Variation of orders In all jurisdictions, family provision legislation empowers the court to discharge, vary or suspend an order or make such other order as the court thinks fit.1 However, in the Northern Territory, the court does not have the power to increase provision.2 Also legislation which only includes a power to vary an order has been held not to extend to an order for increased provision.3 An increase in provision is expressly permitted in the Australian Capital Territory, New South Wales, Queensland, Tasmania and Western Australia.4 The power to vary an order must be exercised cautiously5 and an increase or reduction in the amount of the provision must only be made where this is clearly called for by the altered circumstances of the case.6 The main reason why the courts vary an order is that there have been substantial changes in the circumstances of the person who is affected by the family provision order or substantial changes to the deceased estate.7 In all jurisdictions except New South Wales, the court may not develop an entirely new order.8 The power to vary an order must be exercised cautiously, and it does not enable a court to review the dismissal of an application for relief.9 In New South Wales, the court may make a new order for an applicant whose application for family provision has been refused in the past.10 This may occur only if at the time of refusal there was undisclosed property in the estate, that would have increased the estate of the deceased person substantially and the court would not have refused the application at that time.11 Notes 1 (ACT) Family Provision Act 1969 s 9A(1)-(3). An administrator or any person beneficially entitled to, or interested in, any part may apply: ibid s 9A(2). (NT) Family Provision Act 1970 s 17. An administrator or any person beneficially entitled to, or interested in, any part may apply: ibid s 17(1), 17(2). Notice of an application for variation must be served on all persons who have taken a benefit under the order: ibid s 17(4). (NSW) Succession Act 2006 s 70(1). The court may revoke or alter an order for provision to be made in respect of the same property for the benefit of another eligible person: ibid ss 70, 71. The court must not alter or revoke an order for provision in favour of an eligible person to allow the making of a further order for provision in favour of another eligible person, unless the other eligible person shows sufficient cause for not having applied for provision in his or her favour before the first mentioned order was made: ibid s 70(3). The court may make an order for additional provision (to an eligible person who has already been granted provision) out of the deceaseds estate or notional estate where the eligible person shows that there has been a substantial detrimental change in his or her circumstances since the order was made: ibid s 59(3)(a). The court may also make an order for additional provision where there was undisclosed property at the time of the previous order, which would have made the estate substantially greater in value: ibid s 59(3)(b), 59(4). For matters to which the court may have regard in making such a determination see ibid s 60. See also Re De Kantzow (decd) and the Testators Family Maintenance Act [1968] 3 NSWR 217; (1968) 88 WN (Pt 1) (NSW) 437 per Street J. (QLD) Succession Act 1981 s 42. Where the court has ordered a periodic payment or has ordered any part of the estate or lump sum to be invested for the benefit of a person, the court may increase or reduce the provision; discharge, vary or suspend the order; or make such other orders as are just in the circumstances: ibid s 42(1). The court may alter an order upon the application of any person and enquire whether any party deriving benefit from the order is still living or whether the provision remains adequate: ibid s 42(1). The court must not increase the
provision unless either the income from the estate or the invested capital is sufficient to meet the proposed increase in the provision and all other lawful payments: ibid s 42(1), 42(2). (SA) Inheritance (Family Provision) Act 1972 ss 9(5), 12. On the application of the administrator or any person beneficially entitled, the court has a general power and may rescind or alter any order: ibid s 9(5). Where the court has ordered periodic payments or a lump sum to be invested for the benefit of any person and that persons financial situation has improved, the court may discharge, vary or suspend periodical payments or make such other orders as are just in the circumstances: ibid s 12. (TAS) Testators Family Maintenance Act 1912 s 9(5). Upon the application of the executor, administrator or entitled or interested person, the court may rescind or alter any order by increasing or reducing the amount of any provision (including periodic payments or benefit from lump sum investment) or by varying any order as the court thinks fit: ibid s 9(5). Notice of an application to rescind or alter an order must be served on any persons taking any benefit from the existing order: ibid s 9(6). (VIC) Administration and Probate Act 1958 s 97(5). On application of the executor, administrator or any person beneficially interested in the deceaseds estate, the court may rescind or alter any order. A notice of motion must be served on all persons taking any benefit from the existing order: ibid s 97(5). See also Re Bishop (decd) [1953] VLR 543 at 548; [1952] ALR 1022 per Herring CJ (rescission of an order is a complete cancellation). (WA) Inheritance (Family and Dependants Provision) Act 1972 s 15. The Act is to be renamed: see further note 4 below. On application of the executor, administrator or any person beneficially interested in the deceaseds estate, the court may rescind or suspend any order or reduce or increase provision made under it: ibid ss 15(1), 16(1). In reducing the order, the court must have regard to any hardship that would be caused to any person taking under the existing provision: ibid s 15(1). The court may increase the provision only where it would not be inequitable to grant relief, having regard to all possible implications in respect of other persons, and where the applicant demonstrates that since the date of the existing order circumstances have so changed that undue hardship would be caused if the increase is not granted: ibid s 16. An application for increase may only be brought by a person who was granted provision when the original grant was ordered: ibid s 16(1). Notice of an application to rescind, suspend or reduce provision must be served on all persons taking benefit under the existing order: ibid s 15(2). Notice of any application to increase the provision must be served on the administrator of the estate or other persons as the court directs: ibid s 16(2). 2 (NT) Family Provision Act 1970 s 17(3).3 Preston v Public Trustee [1933] GLR 868; [1933] NZLR 1237 ; Re Edwards [1960] Tas SR 146 .4 (ACT) Family Provision Act 1969 s 9A(3) (where the court has directed provision by way of periodical payments or the benefit of the investment of a lump sum) (NSW) Succession Act 2006 s 59(3) (power to make an order for additional provision where there has been a substantial detrimental change in the circumstances of the eligible person, or undisclosed property. The power conferred by (NSW) Family Provision Act 1982 (repealed) s 8 (now replaced by (NSW) Succession Act 2006 s 59(3)) to increase a former provision was held to only apply when the former order was for continuing maintenance and the income was inadequate to provide for the maintenance, education or advancement in life of the eligible person: Wentworth v Wentworth (1995) 37 NSWLR 703; BC9505254 . (QLD) Succession Act 1981 s 42(1) (general power to vary; however, power to award increased provision is confined to cases where the initial order was a periodical payment or investment of a lump sum) (TAS) Testators Family Maintenance Act 1912 s 9(5)(b) (court may increase an order in such manner as it thinks proper provided that it will not disturb a distribution of any part of the estate
that was lawfully made before the making of the application for the alteration). See also ibid s 9(5A) (WA) Inheritance (Family and Dependants Provision) Act 1972 s 16(1) (since original order circumstances have so changed that undue hardship will be caused if increased provision is not made). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and a day had not been set as of the time of publication. The amending Act, which renames the principal Act the (WA) Family Provision Act 1972, amends ibid s 6, allowing the court to make a further family provision order when an order has already been made if there is undisclosed property and if the value of that undisclosed property would have materially affected the orders made by the court. 5 Re Edwards [1960] Tas SR 146 at 147 per Gibson J .6 Wentworth v Wentworth (1995) 37 NSWLR 703; BC9505254 at [32] per Powell JA.7 Re Edwards [1960] Tas SR 146 at 147 per Gibson J .8 Re Edgar [1962] Tas SR 145 at 147 per Gibson J ; Re Porteous (decd) [1949] VLR 383 at 385; [1950] ALR 89 per Herring CJ , SC(VIC), Full Court.9 Leeder v Ellis (1952) 86 CLR 64 at 65; [1952] ALR 1198; (1953) 26 ALJR 482; BC5200270 per Lord Cohen, PC . As to the persons eligible to apply for relief see [395-6555]-[395-6600]. As to jurisdiction to make an order see [395-6675]-[395-6755]. 10 (NSW) Succession Act 2006 s 59(4). Note that the (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011, the substantive provisions of which had not yet come into force at the time of publication, renames the principal Act the (WA) Family Provision Act 1972 and amends ibid s 6, allowing the court to make a family provision order when an application for an order has already been refused if there is undisclosed property the value of which would have materially affected the orders made by the court.11 (NSW) Succession Act 2006 s 59(3)(b), 59(4). The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7130] Settlement considerations In all jurisdictions except Queensland, the family provision legislation provides that any settlement agreement operates either as a codicil to the will, or, if the deceased was intestate, as an amendment to the intestacy rules or as if it had been made in the will of the deceased person.1 There is no duty payable on instruments executed in accordance with a court order such as a settlement agreement.2 A settlement agreement executed in the form of a deed 3 is liable to duty at ad valorem rates.4 If the deed amounts to a resettlement of the entire estate, ad valorem duty is to be paid on the gross value of the estate.5 The court must be satisfied that the settlement is appropriate.6 The courts sanction is necessary to any agreement, even if a next friend is appointed as security for the applicants rights.7 Notes 1 As to the effect of the order see [395-6930]. As to intestacy generally see [395-1500]-[3952095]. Prior to any settlement agreement being entered into, an applicant should ensure any such agreement is based on a current valuation of the estate. As to valuation of the estate see [395-
4000]-[395-6035]. Factors such as the disability of one of the parties and any relevant tax implications, as well as conveyancing or transfer costs, should be taken into account when entering into a settlement agreement. As to tax implications of family provision see [395-7135].2 Brown v Brown (1921) 22 SR (NSW) 106 at 110; 38 WN (NSW) 255 per Street CJ; Atkinson v Collector of Imposts [1919] VLR 105 . See also (NSW) Succession Act 2006 s 66(3) (instrument relating to property in notional estate of deceased person is not liable to duty under the (NSW) Duties Act 1997). 3 Davies v Collector of Imposts [1908] VLR 272; (1908) 14 ALR 149 . As to deeds generally see deeds and other instruments [140-1].4 Ad valorem literally means according to the value: see Encyclopaedic Australian Legal Dictionary.5 Scott v Comptroller of Stamps [1967] VR 122 .6 Re Hatte [1943] St R Qd 1 at 26 per Philp J (court did not approve settlement agreement where applicant entered into agreement without the knowledge or assistance of solicitor).7 Katundi v Hay [1940] St R Qd 39 at 42 per Philp J; Glassford v Murphy (1878) 4 VLR (L) 123 . The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7135] Tax implications Federal and State taxes and duties may be payable upon the transmission, conveyance or disposal of assets.1 Notes 1 In particular, capital gains tax. See generally (CTH) Income Tax Assessment Act 1997 Pt 33 Div 128 and specifically ibid ss 12815, 12825. See also taxation and revenue [405-7001][405-7650]. As to relevant State duties see taxation and revenue [405-36000]-[405-39575].
Source
(7) PROPERTY OUT OF WHICH ORDER MAY BE MADE
The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7190] General principles In all jurisdictions except New South Wales,1 an order for relief is restricted to the deceaseds estate.2 The estate consists of all the property which passes to the personal representative on the death of the testator, or by grant of probate or letters of administration.3 Unless there is provision to the contrary, the court may only make an order out of property which has not yet been distributed.4 In Queensland, a donatio mortis causa made by the deceased is treated as part of the estate.5 Notes 1 The (NSW) Succession Act 2006 allows a court to make an order over the deceaseds notional estate: see [395-7205].2 (ACT) Family Provision Act 1969 s 8(1) (NT) Family Provision Act 1970 s 8(1) (QLD) Succession Act 1981 s 41(1) (SA) Inheritance (Family Provision) Act 1972 s 7(1) (TAS) Testators Family Maintenance Act 1912 s 3(1) (VIC) Administration and Probate Act 1958 s 91 (WA) Inheritance (Family and Dependants Provision) Act 1972 s 6(1). The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and a day had not been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972. 3 Easterbrook v Young (1977) 136 CLR 308 at 316; 13 ALR 351; 51 ALJR 456 . The estate is the net estate and not the gross estate: Leeder v Ellis (1952) 86 CLR 64; [1952] ALR 1198; (1953) 26 ALJR 482; BC5200270 , PC. The estate includes both real and personal property: Re Hardgraves [1955] St R Qd 601 at 606 per Stanley J, SC(QLD), Full Court. If a testator contracts to leave property to a third person by will, such property cannot become the subject of a testators family maintenance order: Schaefer v Schuhmann [1972] AC 572 at 596; [1972-73] ALR 501; (1972) 46 ALJR 82; [1972] 1 All ER 621 , PC. Compare Dillon v Public Trustee of New Zealand [1941] AC 294; [1941] 2 All ER 284; (1941) 165 LT 357 , PC. As to contracts relating to wills see [395-100]-[395-120]. As to the personal representative see [395-7005], [395-
7010]. As to what constitutes the deceaseds estate generally see [395-4000]-[395-6035].4 White v Barron (1980) 144 CLR 431 at 437 per Barwick CJ, at 446-7, 449 per Aickin J; 30 ALR 51; 54 ALJR 333; BC8000077 ; Re McPhail (decd) [1971] VR 534 . As to the distributed estate see [395-7195].5 (QLD) Succession Act 1981 s 41(12). For an explanation of a donatio mortis causa see [395-30]-[395-45]. See also equity [185-465]. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7195] Distributed estate In some jurisdictions, an order for provision may be made over assets which have been distributed within defined limits.1 In the Australian Capital Territory, an order may be made over a distributed estate unless the distribution was made more than 12 months after date when administration of the estate was granted and before the executor received notice of the application or notice of an application for an extension of time to make an application.2 In the Northern Territory, a court may make an order over distributed estate where the executor or administrator has distributed assets within 12 months from the date of the grant of probate or administration.3 In both the Australian Capital Territory and the Northern Territory, an order cannot be made over property which has been distributed for the maintenance, education or advancement in life of a person who was wholly or partially dependent on the deceased before the deceaseds death.4 In South Australia, Tasmania and Victoria, where an application is made pursuant to leave to apply out of time, an order cannot be made over any part of the estate that was distributed before the application.5 In Western Australia, a court may make an order under the (WA) Trustees Act 1962 in lieu of an order for family provision.6 An order cannot be made over property that has been distributed for the maintenance, support or education of a person who was either wholly or partially dependent on the deceased at the deceaseds time of death.7 Notes 1 (ACT) Family Provision Act 1969 s 20 (NT) Family Provision Act 1970 s 20 (WA) Inheritance (Family and Dependants Provision) Act 1972 s 8. The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and a day had not been set as of the time of publication. The amending Act renames the principal Act the (WA) Family Provision Act 1972. There are no equivalent provisions in the other jurisdictions. In New South Wales, distributed estate is considered together with notional estate: see [3957205]. As to when the estate is distributed see [395-4000]-[395-6035]. 2 (ACT) Family Provision Act 1969 s 20(2)(b).3 (NT) Family Provision Act 1970 s 20(1).4 (ACT) Family Provision Act 1969 s 20(2)(a)
(NT) Family Provision Act 1970 s 20(2). 5 (SA) Inheritance (Family Provision) Act 1972 s 8(5) (TAS) Testators Family Maintenance Act 1912 s 11(4) (VIC) Administration and Probate Act 1958 s 99. As to extension of time see [395-6990]-[395-7000]. 6 (WA) Inheritance (Family and Dependants Provision) Act 1972 s 8(1).7 Ibid s 11. The (WA) Inheritance (Family and Dependants Provision) Amendment Act 2011 was passed on 25 October 2011. The substantive provisions do not come into effect until the day set by proclamation, and a day had not been set as of the time of publication. The amending Act, which renames the principal Act the (WA) Family Provision Act 1972, amends ibid s 11 to refer to dependence on the deceased immediately before the deceaseds death instead of at the time of death. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7200] Property subject to a power of appointment Property over which a deceased had a power of appointment does not form part of the estate.1 A power of appointment allows the donee of the power to dispose of property which belongs to another person;2 the property which is the subject of the power does not belong to the donee.3 In the Australian Capital Territory and the Northern Territory, a court may make an order over property which is subject to a power of appointment where:4 (1) the deceased was able to exercise the power in his or her own favour immediately prior to death; (2) the power was exercised by will; and (3) the court is satisfied that adequate provision for the applicant cannot be made from the estate, or there are special circumstances for an order. In Queensland and Victoria, the court may make an order over property which is subject to a power of appointment.5 In New South Wales, Tasmania and Victoria, where property has been appointed by will in the exercise of a general power of appointment, the property vests in the testators personal representative as if the testator had been entitled to it at the time of his or her death.6 This property may be subjected to an order for family provision.7 Notes
1 Tatham v Huxtable (1950) 81 CLR 639 at 653-4; [1951] ALR 1; (1950) 24 ALJ 416 per Kitto J; Nosworthy v Nosworthy (1906) 26 NZLR 285; 9 GLR 303 . Compare Re Carter (decd) (1944) 44 SR (NSW) 285 (property may form part of estate); MacKenzie v MacKenzie (1851) 3 Mac & G 559; 42 ER 376 (testator appoints property to his or her executor and the property becomes part of the estate); Brickenden v Williams (1869) LR 7 Eq 310 (testator appoints property to his or her executor and the property blends with the testators; there is a presumption that he or she intended the property to become part of his or her estate); Re Kensington (decd); Kensington v Kensington [1949] NZLR 382 (property becomes part of the estate where the testator treats the property as part of his or her estate).2 Freme v Clement (1881) 18 Ch D 499 at 504; 50 LJ Ch 801; 44 LT 399 per Jessel MR.3 Easum v Appleford (1840) 5 My & Cr 56 at 60; 41 ER 292 at 294 per Lord Cottenham LC; Nosworthy v Nosworthy (1906) 26 NZLR 285; 9 GLR 303 .4 (ACT) Family Provision Act 1969 s 13(1) (NT) Family Provision Act 1970 s 13(1). 5 (QLD) Succession Act 1981 s 5B (estate of deceased includes property over which the deceased exercised, or was entitled to exercise, a power of appointment by will) (VIC) Administration and Probate Act 1958 s 5(3) (includes property over which the deceased exercises a general power of appointment (including the statutory power to dispose of entailed interests) by his or her will). 6 (NSW) Probate and Administration Act 1898 s 46B(1). See also (NSW) Succession Act 2006 s 55(4). (TAS) Administration and Probate Act 1935 ss 4(1), 6(2) (realty only) (VIC) Administration and Probate Act 1958 s 13(2)(a) (realty only). 7 Re Carter (decd) (1944) 44 SR (NSW) 285 at 289 The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7205] Notional estate in New South Wales In New South Wales, the court may make an order out of property which no longer forms a part of the deceaseds estate because it has been distributed or has ceased to form part of the deceaseds estate.1 The court must take into account the importance of not interfering with reasonable expectations in relation to property, the substantial justice and merits involved in making or refusing to make an order, and any other relevant matters.2 The court must not make such an order unless it is satisfied that the deceased left no estate, or the estate is insufficient to make the family provision order or costs order, or that provision should not be made solely out of the deceaseds estate because there are other potential applicants or special circumstances.3 The court may not make a costs order from the notional estate for an unsuccessful family provision applicant.4 The applicant seeking relief may apply to the court for an order designating that certain property is the notional estate of the deceased testator and, if the applicant is successful, an order may be made out of that property.5 The court may designate as notional estate any property which is held by, or on trust for, a person who has received property by way of a relevant property transaction.6 A relevant property transaction includes a transaction by which property becomes held by another person or subject to a trust and in which there is an absence of full consideration.7 per Roper J.
Property may also be deemed as notional estate if it is held by the legal representative, or beneficiary, of the estate of a person who received the property through a relevant property transaction and has subsequently died.8 Only certain transactions affecting the deceased's estate may give rise to a designating order.9 There are a number of restrictions on the power of the court in designating property as the notional estate.10 Orders for relief in favour of the applicant may be made by the court out of the designated notional estate and the original holders rights are extinguished to the extent of the order.11 Legal representatives and executors who distribute property in an estate prior to a declaration by the court are protected in certain circumstances.12 Notes 1 (NSW) Succession Act 2006 Pt 3.3.2 Ibid s 87.3 Ibid s 88. See, for example, Ford v Simes [2009] NSWCA 351; BC200909980 (character of applicant and relationship with deceased can be adduced as evidence to argue no special circumstances).4 (NSW) Succession Act 2006 s 78(2).5 Ibid Pt 3.3 Divs 2, 3.6 Ibid ss 80, 81. For the meaning of relevant property transaction see ibid ss 75-77.7 Ibid s 75. Ibid s 76 sets out specific transactions which are deemed to satisfy ibid s 75: (1) a contract for the disposition of property out of the deceaseds estate; (2) failure to nominate a person as a beneficiary under a life assurance policy or to deal with entitlements under a superannuation fund; (3) failure to exercise a power to extinguish a trust or interest held by another over property; (4) failure to prevent property passing by survivorship and failure to sever a joint tenancy; and (5) failure to exercise a power of appointment. See, for example, Wade v Harding (1987) 11 NSWLR 551 (property passing on survivorship); Cetojevic v Cetojevic [2007] NSWCA 33; BC200701029 (failure to sever a joint tenancy); Pope v Christie (1998) 144 FLR 380; BC9801327 (failure to nominate a person as a beneficiary under a superannuation scheme).8 (NSW) Succession Act 2006 s 82 (this person is known as the deceased transferee). This provision overcomes the problem that arose in Prince v Argue [2002] NSWSC 1217; BC200208083 .9 (NSW) Succession Act 2006 s 80, which sets out a number of requirements such as: (1) the transaction must have taken effect within three years of the deceaseds death and have been executed for the purpose of defeating a claim; (2) the transaction must have taken effect within one year of the deceaseds death and have been entered into when the deceased had a moral obligation to make adequate provision
for an eligible person and that obligation was substantially greater than any moral obligation of the deceased person to enter into the relevant property transaction; or (3) the relevant property transaction took effect or is to take effect on or after the death of the deceased. If the donee of the relevant property transaction has disposed of the original property, the court may make an order designating other property belonging to the donee as the notional estate: ibid s 80(3).10 Ibid ss 83, 87, 89 (general restrictions under ibid s 87 include not interfering with expectations in relation to property, the substantial justice or merits involved in making or refusing the order and any other relevant circumstances the court deems fit to consider).11 Ibid s 84 (order).12 Ibid ss 93, 94. The paragraph below is current to 16 May 2012 For new cases see ACL Reporter To update legislation see ACL Legislation For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations [395-7210] Cross jurisdictional property issues Generally the court of the forum has jurisdiction to make orders concerning movable property of a deceased person domiciled in the forum, but does not have jurisdiction with respect to immovable property outside the forum.1 In New South Wales and South Australia, orders may be made with respect to movable property located in the jurisdiction, regardless of the deceaseds domicile.2 In New South Wales, the court may also make an order with respect to immovable property outside the jurisdiction,3 but this may not extend to immovable property which is outside the jurisdiction and belongs to persons not domiciled within the jurisdiction.4 Notes 1 Re Paulin [1950] VLR 462; [1950] ALR 503 ; Re Donnelly (1927) 28 SR (NSW) 34; 45 WN (NSW) 5 ; Heuston v Barber (1990) 19 NSWLR 354 at 360 per Windeyer M.2 (SA) Inheritance (Family Provision) Act 1972 s 7(1)(a) (NSW) Succession Act 2006 s 64. There are no equivalent provisions in the other jurisdictions. 3 (NSW) Succession Act 2006 s 64.4 Balajan v Nikitin (1994) 35 NSWLR 51 , applied in Hitchcock v Pratt [2010] NSWSC 1508; BC201010236 .
Source
FURTHER REFERENCES Atherton, R and Vines, P Australian Succession Law Commentary and Materials, Butterworths, Sydney, 1996. Mason, K and Handler, L J, Wills Probate and Administration Service New South Wales, Butterworths, Sydney, 1985 to current (looseleaf), Vol 1.
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(3) TRUSTS AND POWERS OF THE PERSONAL REPRESENTATIVE

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(3) TRUSTS AND POWERS OF THE PERSONAL REPRESENTATIVE

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(4) DISTRIBUTION OF ASSETS

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(C) Payment The paragraph below is current to 28 July 2011

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(5) RESIDUARY ESTATE

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(6) ASSENTS AND ACKNOWLEDGEMENTS

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(8) LITIGATION BY OR AGAINST PERSONAL REPRESENTATIVES

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To update legislation see ACL Legislation

(NSW) Uniform Civil Procedure Rules 2005 r 6.30

(NT) Supreme Court Rulesrr 9.08, 9.09

(QLD) Uniform Civil Procedure Rules 1999 rr 71-73

(TAS) Supreme Court Rules 2000 r 182. Compare ibid r 306.

(WA) Rules of the Supreme Court O 18 rr 7-9.

(NSW) Law Reform (Miscellaneous Provisions) Act 1944 s 2(1)

(QLD) Succession Act 1981 s 66(1)

(SA) Survival of Causes of Action Act 1940 s 2

(VIC) Administration and Probate Act 1958 s 29(1)

(WA) Law Reform (Miscellaneous Provisions) Act 1941 s 4(1).

(QLD) Succession Act 1981 s 66(1)

(VIC) Administration and Probate Act 1958 s 29(1)

(WA) Law Reform (Miscellaneous Provisions) Act 1941 s 4(1).

(NT) Law Reform (Miscellaneous Provisions) Act 1956 s 5(2)

(NSW) Law Reform (Miscellaneous Provisions) Act 1944 s 2(1)

(QLD) Succession Act 1981 s 66(1)

(WA) Law Reform (Miscellaneous Provisions) Act 1941 s 4(1).

(NT) Law Reform (Miscellaneous Provisions) Act 1956 s 5(1)

(NSW) Law Reform (Miscellaneous Provisions) Act 1944 s 2(1)

(QLD) Succession Act 1981 s 66(1)

(SA) Survival of Causes of Action Act 1940 s 2

(TAS) Administration and Probate Act 1935 s 27(1)(a)

(VIC) Administration and Probate Act 1958 s 29(1)