Wills & Estates case law and regulatory update – November 2019

11 November 2019

Welcome to the first edition of the HWL Ebsworth Wills & Estates Team Case Law and Regulatory Update.

You are receiving this Update as we believe that this area may be of interest to you and your organisation. The purpose of the Update is to let you know about Wills & Estates matters recently decided in Australian Courts as well as changes to the law that may affect this area of practice.

The HWL Ebsworth Wills & Estates team includes lawyers with vast experience in planning, administering and litigating estates. Our practice includes Accredited Specialists in Wills & Estates and is represented in every Australian state and territory.

Please feel welcome to forward this Update to any friends or colleagues who you think might be interested. You may unsubscribe below if you no longer wish to receive the Update.

If you would like any more information about any of the content in the Update, or if you have any queries related to any Wills, Estates or Trusts matters, please contact a member of our team.

Yours faithfully,

HWL Ebsworth Wills & Estates Team

Case law update

Re Haynes [2018] VSC 778

This case concerns an executor who was found to have concealed a will from a beneficiary and was ordered, at the suit of a beneficiary to pay an unpaid legacy to that beneficiary together with interest and costs. An added layer of complexity is that the executor, in defiance of the beneficiary’s claim, attempted to have probate of the will containing the legacy revoked and probate of an alleged later informal will granted in its place.

The significance of the case is that it demonstrates the extent to which executors will be found to be personally liable in circumstances where a will is concealed or a legacy unpaid (or both).

To read more, please click here.

Attwell v Morgan [2019] WASC 182

The principle issue in this case was whether or not the deceased had testamentary capacity when signing his last Will and its associated codicil. There was no associated issue (such, as for example, whether any undue influence had been exercised).

This case is significant because the Judge found that evidence given by various expert witnesses retained by the parties as to the deceased’s testamentary capacity was of little value and that the experts themselves had:

  • Not been properly instructed;
  • Proceeded on the basis of the wrong test or the incorrect application of the test for testamentary capacity; and
  • Drawn conclusions which could not be relied upon (given they were based on the incorrect test or an incorrect application of the test).

To read more, please click here.

Re Simcocks [2019] VSC 62

This is a case where the Court refused to approve terms of settlement on behalf of a person under a disability. It demonstrates that parties should not assume the Court will approve a compromise on behalf of a person under a disability ‘as a matter of course’ and that applications for approval should be thoroughly prepared. In particular, the Court will always assess and determine whether a proposed compromise is in fact in the best interests of that person so affected and will not approve a compromise without sufficient information to form that view.

To find out more, please click here.

Wengdal v Rawnsley [2019] NSWSC 926

This is a case where a claim for added provision out of a small estate was rejected and the unsuccessful claimant was ordered to pay the estate’s costs. It demonstrates that the financial position of parties is a key consideration in determining if a family provision order should be granted out of a modest estate and shows the Court’s willingness to depart, in these circumstances, from any expectation that costs be paid out of the estate.

In this case, two sisters were pitted against each other in respect of the estate of their deceased mother. Taking into consideration all of the estates assets and liabilities, the highest value of the estate available to the Court was $297,796.00.

To read more, please click here.

Lodin v Lodin [2017] NSWCA 327

On appeal, this case appears to have settled the issue of whether an ex-spouse, with whom a deceased had a binding Family Court property settlement, can claim from the deceased’s estate for greater provision on the deceased’s death. In this case at first instance the ex-spouse was awarded a legacy of $750,000 in an estate in excess of $5million. An appeal by the deceased’s daughter was successful – the Court held the deceased had no continuing obligation to provide for his ex-spouse following the making of Family Court orders.

To read more, please click here.

Executors’ Commission – A nationwide snapshot

This article gives a summary overview of the statutory provisions across the States and Territories pursuant to which an executor is entitled to apply for an award of executor’s commission. An executor (or administrator) may make such an application where no commission is awarded pursuant to the deceased’s Will.

To read more, please click here.

ATO: Main Residence Practical Compliance Guide 2019/5 – Deceased estates – ATO

The Australian Taxation Office (ATO) recently issued Practical Compliance Guideline 2019/5 (PCG 2019/5) relating to the sale of a deceased’s main residence (the Property), and when a capital gain arising from the sale may or may not be tax-free.

To read more, please click here.

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