Calculating the amount of interest payable on a Legacy in accordance with a Will
Section 84A(1) of the Probate and Administration Act 1898 (NSW) provides “where interest is payable on any legacy or on any arrears of an annuity in accordance with the will or instrument pursuant to which the legacy or annuity is payable …that interest shall, unless the will or instrument otherwise provides, or the Court otherwise orders, be payable at the relevant rate”.
Subsection 3 provides the “relevant rate” of interest means the rate that lies 2% above the cash rate last published by the Reserve Bank of Australia before 1 January in the calendar year in which interest begins to accrue (go to www.rba.gov.au for the current cash rate).
Contracts and family provision orders
The final disposition of a family provision application calls for the exercise of the Court’s discretion, it cannot be achieved by agreement or deed: Lieberman v Morris (1944) 69 CLR 69; Smith v Smith (1986) 161 CLR 217, 235 and 249. The rule has its origins in the policy that a person cannot by contract exclude the jurisdiction of the Court to make a family provision order: Re Hatte [1943] St. R. Qd. 1, 13-14.
Criminal records and contesting wills
A criminal record is not as such a bar to a claim under the Act. A good example is Hoadley v Hoadley (17 February 1987, Young J, unreported). There, Young J (as his Honour then was) made an order for provision in favour of an adult child who had spent 20 years in prison, where his Honour considered there would be good prospects of rehabilitation which an order for provision would promote: Hastings v Hastings [2008] NSWSC 1310 (9 December 2008) White J said at 40.
The importance of statutory time limits in contested wills cases
White J observed in Bird v Bird [2002] QSC 202 at [22]: “time limits in statutes are for good reason. The fundamental policy of the law and the reason for the statutory time limit is that there be prompt administration of the estate and the preservation of the certainty and integrity of an executorial administration regularly completed: Baker v Williams & Brunner [2007] QSC 226 at [30] per de Jersey CJ; and see Hills v Chalk (supra) at [78]-[81] per Muir JA.”
The meaning of ”dependency” in contested wills cases
“In McKenzie v Baddeley (NSWSC unreported, 3 December 1991), Meagher J … discussed dependency and described it as “financial, economic or material dependency, not a mere emotional dependency.” Associate Justice MacReady in Nelligan v Crouch [2007] NSWSC 840 at 51.
General rule regarding costs in contested wills cases
The general rule is that “there is no power in the court to make a successful defendant pay the costs of an unsuccessful plaintiff. The reason is obvious: it is the plaintiff who brings the defendant into court.” McCusker v Rutter [2010] NSWCA 318 Young JA at 29.
A de facto relationship can exist between two people of the same sex
In Ye v Fung (2006) NSWSC 243 Gzell J said at 56: “The new definition of a de facto relationship in the Property (Relationships) Act 1984, section 4 clearly encompasses homosexual partners … A de facto relationship is redefined as being a relationship between two adult persons who live together as a couple and who are not married to one another or related by family. This redefinition … is designed to be clearly inclusive of those living together as homosexual couples.”
The definition of ‘provision’ in contested wills cases
In Diver v Neal [2009] NSWCA 54 at 34 it was said the term “covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person’s lifetime.”
The meaning of proprietary estoppel in the context of contesting a will
Proprietary estoppel is a reliance or expectation created or encouraged by a property owner towards another to alter his or her position to their detriment in the expectation of obtaining a proprietary interest: Handley JA in Delaforce v Simpson-Cook [2010] NSWCA 84 at 21. An example would be a promise of property upon death by one person to another (i.e. husband to wife) on the performance of certain duties or the forfeiture of a debt.
The onus rests with the plaintiff in a contested will case
In Edgar v Public Trustee for the Northern Territory & Anor [2011] NTSC 5 at 46 the court said:
There is no onus on the widow as residuary beneficiary under the will to show that she is entitled to be treated as such – or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will.
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