What is a Resulting Trust in will contests?
A resulting trust is one arising where an express trust fails in whole or in part; where an express trust is fully performed without exhausting the trust property; or where the purchaser of property directs the vendor to convey the property to another person.
Mandatory mediation in nearly all will contest cases
In NSW, unless special reasons exist, the court must order mediation: section 98 Succession Act 2006 (NSW).
Discretionary trusts and contesting a will
A discretionary trust is one in which the trustee has a discretion as to when any payment from the trust fund will be made, who, in a definite class of beneficiaries, will receive it and the amount of such payment.
Member of more than one household is sometimes permissible when contesting a will
It is possible to be the member of one or more household.
No need to satisfy additional requirements in some will contest cases
A wife, husband or de facto partner at the time of death is able to bring an application for provision without the need to satisfy the additional requirement of establishing “factors which warrant the making of the application” under s59(1)(b) of the Succession Act 2006 (NSW).
Release of rights to contest a will
In NSW section 95 of the Succession Act states that a person may release any rights he or she may have to bring an application under the relevant legislation.
Solicitor’s failure in not filing a claim in time in a will contest case
Where a solicitor has been retained during the period prescribed by the Act, and the claim has not been commenced within the prescribed period, the question that arises is whether the solicitor’s failure in not filing the claim provides sufficient reason to extend the time.
Degree of friction not a decisive factor when contesting a will
Ball J has said ‘the fact that the parent and child saw one another infrequently or that there existed a degree of friction between them is not decisive….It is just one of the matters that needs to be considered in considering what order, if any, should be made’.
Death of an applicant contesting a will
The right to commerce a claim for family provision is a personal right vested in the applicant and does not survive death.
Contesting a will and appointment of a litigation guardian or tutor
When persons bringing a family provision claim under legal disability, the rules of the court in all jurisdictions provide for the appointment of a substitute decision maker called a litigation guardian, tutor or next friend.
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