Succession

Re-Cap

• Characteristics of a Will

• Statutory Wills

Challenging the Will

• Testamentary Capacity

• Knowledge and Approval

• Fraud and Undue Influence- Dickman v Holley; Estate of Simpson [2013]

NSWSC 18 - Petrovski v Nasev; The Estate of Janakievska

[2011] NSWSC 1275• Testamentary Intention

Question 1T and his wife Wilma had three children (A, B and C) and two grandchildren (B1 and B2, who are children of B). Wilma had a child, D, from a former relationship. T and Wilma separated in 2000, and in 2010 they divorced. B died on 1 December 2012 and C died on 20 February 2013.

In August 2011 T entered into a relationship with Debra, with whom he had a child, E. T died on 2 February 2013.

(b) Explain who is entitled to T’s estate and how the estate should be distributed if T died without leaving a will and left the following assets and liabilities:House, which was occupied by T and Debra, who claims to be entitled to the house $500,000

Antique desk in the home study, which was used occasionally by T to see clients in his work as a financial broker $50,000

Furniture (other than the antique desk) $20,000

Shares $500,000, Bank account $100,000Motor vehicle $30,000 Charge against the car used to finance its purchase $20,000

Mortgage on the house $300,000Debts, funeral and testamentary expenses $50,000

You may assume that the statutory legacy at T’s death is $425,000.

T, who was 89 years of age and suffering from minor ailments, including decreased hearing and impairment of vision, made a will a month before his death leaving $10,000 to his local club and the rest of his estate to a neighbour, Aileen. The will appointed Aileen as executor and stated that T did not want to leave his estate to his family as they had not bothered to contact or visit him for the last 30 years. Aileen had frequently visited T and assisted with domestic chores without payment.

T’s earlier will had given the whole of his estate to his local club.

Aileen, in her application for a grant of probate of the last will of T, described the circumstances surrounding the execution of the will as follows. The deceased asked her to arrange for two of his friends to visit him. One of the friends typed out the will, which was read to him by one of them, and T stated that he approved of its terms and signed it. The two witnesses then signed the will. It now transpires that Aileen was not present when the will was executed by T and the witnesses, and that neither witness to the will can be found to give evidence. Aileen stated that one witness had gone overseas and her whereabouts was unknown and that she had lost contact with the other witness.

T’s siblings and the club require that the executor prove the will, and they challenge thewill on the grounds of incapacity and undue influence.

• Explain who has the burden of proof, what they must show in order to succeed, and• whether on the facts they have a strong case.

Formal Requirements

Form And Manner• Section 6,7 and 9• Cases– In the Goods of Adas– Re Male– Sweetland v Sweetland– Wilgoss v Ward

Gifts to Interested Witnesses

• Section 10• Re Bunting

The Judicial Dispensing Power

• Re Application of Brown; Estate of Springfield• In the Estate of Masters

Incorporation by Reference

• Allen v Maddock

Rectification Power

• Section 26 and 27– Clerical– Does not give effect to testators intention

• Mortenson v State of New South Wales• Estate of Gillespie