Orders in favour of non-applicants in contested will cases
Where an order for provision is made in favour of an eligible person out of the estate of a deceased person, the court may make an order in favour of any non-applicant in relation to property or notional estate of the deceased in such manner and to such extent as the Court thinks necessary to adjust all the interests concerned and to do justice in all the circumstances: section 10 Family Provision Act 1982 (NSW).
This section was relied on in Large v Higham (No. 2) [2010] NSWSC 560 at 55-56, to order a legacy in substitution of the remainder interest in the will for a grandchild beneficiary who was not an eligible person.
What is a class fund?
A sum of money or real property disposed of under a testamentary instrument or trust which is to be distributed to a specific class or group of people according to the terms of the will or trust instrument. In NSW the court may order provision by way of a class fund for the benefit of two or more persons: s 65(2)(e) Succession Act 2006 (NSW).
The nature of a specific legacy
When a person dies and, by their will, leaves a specific item of property to a particular beneficiary, then, if that gift takes effect, and the will does not provide otherwise, that beneficiary is entitled to the income that is generated by that particular asset, from the date of the deceased’s death: O’Brien v McCormick [2005] NSWSC 619 at [38]-[39].
Testamentary capacity
Where there is doubt as to the testamentary capacity of the testator, the plaintiff bears the onus of proving that the testator had the necessary capacity at the relevant point in time: Re Estate of Griffith (Deceased); Easter v Griffith & Ors (1995) 217 ALR 284 at 289.
The meaning of super visum corporis
The term means “upon the view of the body’. It is not necessary for the coroner to view the body personally, although the corner may choose to view the body: Butterworths Concise Legal Dictionary (3rd ed, 2004) 418.
Passing of estate accounts
This is a process where the executor’s or administrator’s spending and distribution of assets in relation to the estate is examined and passed by the court.
Forced heirship
Forced heirship is a civil law concept, applicable in most European countries, where restriction is placed on the testator to distribute his or her assets freely. In Australia no such restriction exists.
Electronic documents & wills
In Mahlo v Hehir [2011] QSC 243 the applicant sought to prove an electronic document found on the deceased’s home computer as the deceased’s will. There was no record of the electronic document having been printed; however, there was evidence that indicated that the electronic document was printed and that the deceased signed the paper copy. But no paper copy of the electronic document was found. McMurdo J was not satisfied that the deceased intended that the electronic document form her will: at [41]. That decision turned on the facts: Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594 Slattery J at 96.
Beneficiary tax offset
The Australian Taxation Office provides that ‘The beneficiary tax offset is available to taxpayers who receive certain Centrelink benefits and Commonwealth education allowances’.
Limited interference by the court
“A Court will not lightly interfere with a testator’s appointment of executors and trustees. Its ultimate concern must be with the due administration of the estate in the interests of creditors and beneficiaries.” Williams v Williams [2005] 1 Qd R 105, 115 at [45].
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