Release of rights in NSW contested wills cases
The court may release a person’s contested will claim under section 95 of the Succession Act 2006 (NSW) but only after it has considered all the circumstances of the case, including whether:
1. It was to the financial advantage of the releasing party to make the release;
2. It was prudent for the release to be made;
3. The release was fair and reasonable; and
4. The party making the release had taken independent advice.
Contested wills, small estates and excessive costs
Cohen J said in Jackson v Riley (24 February 1989, unreported) “In my opinion the legal profession in both branches has an obligation to reduce the costs of litigation as much as possible when the amounts in dispute are so small”.
Examples of domestic support in contested wills cases
These include providing meals and accommodation, and attending to household chores such as cleaning, washing, and shopping: Barlevy v Nadolski; Nadolski v Barlevy [2011] NSWSC 129 Slattery J at 25.
The purpose of cost capping orders in contested wills cases
Cost capping orders “were designed to put into the Court’s hands a brake on intemperate and disproportionately expensive conduct of proceedings … the Court itself may exercise the power on its own motion whenever it sees the need. This is because the policy of the law, enshrined in Civil Procedure Act 2005 section 56(1) is to facilitate the just, quick and cheap resolution of the real issues in proceedings”: Palmer J in Sherborne Estate (No 2): Vanvalen & Anor v Neaves & Anor; Gilroy v Neaves & Anor [2005] NSWSC 1003 at 29.
An applicant’s spending habits a relevant consideration in making a contested will court order
Bryson AJ said in Hampson v Hampson [2010] NSWCA 359 at 102 if there is “a tendency of an applicant to spend excessive amounts of money unwisely (whether through an addiction to alcohol, drugs or gambling, or simply through habitual spendthrift characteristics)” this is a relevant consideration for the second stage of the process identified in Singer v Berghouse (No 2) (what provision should be awarded).
The court may determine the death of death of the deceased
Under section 97 of the Succession Act 2006 (NSW) the Court may, if the date or time of death of a person is uncertain, determine a date or time of death that the Court thinks is reasonable for the purposes of the Act.
Revoking an earlier Will
Tadgell J said in Re Barker (1995) 2 VR 439 at 445: “It has been recognised for 150 years and more that a general revocation clause in a will is not sufficient to revoke a prior will if a court of probate is satisfied that the testator did not intend by the later will to revoke the earlier.”
Common law duty to bury a dead body and the right to recover funeral expenses
In Rees v Hughes [1946] KB 517 Scott LJ said, at 523-524: “There is an obligation at common law, in the nature of a public duty, which rests on certain persons in whose possession a dead body may be — a husband being one — to bury it … [W]here a man dies possessed of personal property, the duty of burying his body falls primarily on his personal representatives … and this duty entitles the personal representative to absolute priority of reimbursement out of the estate.”
Time limits in contested will cases
New South Wales and Queensland are the only states in which the time limit for making a contested will claim is determined by the date of death of the deceased. In all the other states the time limit is determined by the date on which probate is granted.
The court’s discretion to revoke a grant of probate
In Mavrideros v Mack (1998) 45 NSWLR 80 the Court of Appeal held that the Court has a discretion to revoke a grant of probate where the executor has been guilty of inexcusable delay and inefficiency so that the Court can see that the executor is impeding the due administration of the estate.
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