Some examples of property capable of passing by donatio mortis causa
Bonds, mortgage of land, insurance policies, bank deposit book of pass book, cheque or promissory note and bankers deposit note.
What does Donotio moris causa mean?
Donotio moris causa is a legal term that means a gift of personal property in anticipation of death. To be valid it must be made in contemplation of the donor’s death. It must consist of anything capable of transfer by delivery. That is chattels and choses in action transferable by delivery. Choses means things or items of personal property. This can be relevant to contesting a will.
What does “last will” mean?
It means no more than a “will”. If there is an argument as to the last will only a court can decide which will is the last “legal will”.
Is a will always revocable?
Yes, a will is always revocable even if there is a binding Contract not to revoke the will. However such a revocation may give rise to damages or equitable remedies. In other words a person left out of the last will but included in the will that was not to be revoked my claim against the estate for the wrongful revocation. However he or she cannot stop probate being granted of the last will.
A will is a declaration of intention
Its an intention on the death of the testator and the testator is therefore free to make any inter vivos (life time) dispositions prior to death and free to change the will at any time.
What is meant by the ambulatory nature of a will?
It is said to be ambulatory because it has no effect until the testator dies. Unlike settlements inter vivos (during the life of the person). A will is capable of dealing with property acquired after the date of the will and after death.
Disclaiming a gift
The Succession Act NSW now provides that where there is a disclaimer of an interest or a disqualification such as a Forfeiture Act 1995 decision the person forfeiting or disclaiming is to be taken as having predeceased the intestate for the purpose of distribution. There is a statutory effect that the interest passes to the disclaiming next of kin and not to the government.
Definition of de facto relationship
De facto relationships are defined in both the Property Relationships Act 1984 and also the Section 21 C(2) of the Interpretation Act 1987. A de facto may be a person of the same or opposite sex who immediately before the intestates death was in a relationship with the intestate that was either registered under the Relationships Registered Act 2010 or was in a de facto relationship. The alleged de facto must have a relationship of a continuous period of two years or resulted in the birth of a child. Section 105 Succession Act (NSW).
Sale of property by the Legal Personal Representative
A purchaser is not bound to enquire as to the rightful owner. Where there is no will and one spouse the sale is subject to his or her election to acquire the property unless the house is needed for payment of admin expenses, debts and other liabilities. This rule is also subject to any claims by multiple spouses for a share in the event of intestacy.
Payment of estate debts and liabilities
Section 103 of the succession Act NSW provides for all funeral administrative expenses, debts and other liabilities to be paid out of the estate before distribution. Note however that the Conveyancing Act attaches the liability on property to the property itself.
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