We are pleased to invite you to read our August 2022 edition of HWL Ebsworth’s Melbourne Wills and Estate Planning newsletter. Our newsletter is back, with case notes on relevant decisions on topics of interest to those who deal with Wills and Estate Planning, as well as articles considering various facets of this area of law.
Executors behaving badly – How to deal with difficult Executors and their solicitors
Some of the most common complaints of disgruntled beneficiaries are targeted at executors. This article considers the:
- basic duties of an executor;
- basic duties of a solicitor acting for an executor;
- typical difficulties with executors and solicitors; and
- options for beneficiaries to manage and resolve those difficulties with executors.
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Written by Simon Crawford, Partner, Angela Liaskos, Senior Associate and Jayden Vermeulen, Law Graduate.
Pye v Pye [2021] NSWSC 686
This decision serves as a warning to executors who fail to take appropriate action to progress the administration of an estate. In this case, two of the three executors successfully sought orders (with costs) to revoke the grant of administration and remove the third executor from his office, by persuading the Court that as a result of the third executor’s conduct, the administration of the estate was not being carried out properly, to the detriment of the beneficiaries’ welfare.
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Written by Simon Crawford, Partner, Angela Liaskos, Senior Associate and Jinny Guo, Law Graduate.
Heffernan v Innes & Anor [2021] NSWSC 1033
This case considered the validity of a suicide note as an informal will, and the effect of intoxication on the deceased’s capacity to form testamentary intentions.
In relation to the first question, the Court accepted that the suicide note was intended as a will, and should be upheld as such, for reasons which include the historical acceptance by Courts that suicide notes by their very nature are not incapable of being admitted as testamentary documents.
In relation to the second question, the Court decided that the deceased had the requisite testamentary capacity, and remarked that alcohol consumption alone was not sufficient to show that it detrimentally affected cognition or judgment, nor that it was a bar to establishing testamentary capacity.
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Written by Simon Crawford, Partner, Angela Liaskos, Senior Associate and Isabelle McMahon, Law Graduate.
Re Logan [2021] VSC 131
This is another case involving an informal will, this time in circumstances where the deceased had made handwritten amendments to a will that he had previously executed. The Court accepted that the deceased had intended that, by making those amendments, the revised document would be his last will and that it would be binding upon his death.
Interestingly and topically, the Court also gave consideration to the fact that the deceased created the informal will during the COVID-19 lockdown measures, which it accepted meant that the deceased was not able to see or consult with his solicitors to formally make the amendments, nor would he have been able to comply with the formal requirements for witnessing of the document in any event.
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Written by Simon Crawford, Partner, Angela Liaskos, Senior Associate and Matthew Deetlefs, Law Graduate.
Gerovich v Gerovich [2021] WASC 77
The key issue in this case was whether the deceased could be deemed to have ‘knowledge and approval’ of the contents of her will, in circumstances where she suffered from various physical and even cognitive infirmities, which included deficits in language and visual and hearing impairments.
Ultimately, the Court was persuaded by medical evidence that:
- the deceased had ‘good executive mental function at the time’ that she executed the will;
- she knew and approved of its contents; and
- her mental and physical conditions did not impede her capacity to know, understand and approve of its contents.
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Written by Simon Crawford, Partner, Angela Liaskos, Senior Associate and Jinny Guo, Law Graduate.
Final thought: The rise of the ‘prenup’ in the context of estate litigation
This final thought piece ponders the rising trend of prenuptial agreements and the potential role that they can play in expressing and assessing testamentary intention in contested estates.
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Written by Simon Crawford, Partner and Angela Liaskos, Senior Associate.