Foreign wills
Colonies or the UK who grant probate or letters of administration, by virtue of section 107 of the Probate and Administration Act 1898 (NSW) will be of like force if granted in NSW on being resealed.
Inheritance tax
An inheritance or estate tax is a tax on money or property inherited by a person under a will. Australia abolished the federal estate tax in 1979.
Power to remove and appoint a new trustee in Queensland
Section 80(1) of the Trustee Act 1973 (QLD) provides:
The court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult or impracticable to do so without the assistance of the court, make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.
The meaning of Codicil
A document supplementary to a will made earlier which is executed by a testator with the intention of adding to, alternating, revoking, explaining or confirming a will, provision or part of a will. As a subsidiary testamentary document, a codicil must be executed with the same formalities as a will and when so executed, becomes part of the will and must be proved with the will: Butterworths Concise Legal Dictionary (3rd ed, 2004) 71.
Where the testator has not prescribed a period in the will for a condition to be fulfilled
In Fraser v Fraser [2001] QSC 490 Philippides J said at 12 “where the testator has not prescribed a period within which a condition must be performed, and persons other than the donee are benefited ….. the period allowed is, as a rule, a reasonable period: Williams on Wills, 4th Ed at 291; Halsbury’s Laws of England, 4th Ed Vol 50 at para 387. See also Jarman on Wills, 8th Ed at 1466; Theobald on Wills, 15th ed, at 314. The principle has recently been applied in Miller v Miller (1995) 16 ACSR 73 at 79 and in Watson v Watson [1999] NSWSC 325 at [18], both decisions of the Supreme Court of New South Wales.”
Cy près scheme
A cy près scheme is one which allows the testator’s general charitable intention can be fulfilled. There is no legal impediment to the payment of the fund to a government institution so long as it is capable of fulfilling that intention.
Variation, suspension or discharge of will contest orders by the court
In all Australian jurisdictions, a power to make subsequent orders varying, suspending or rescinding an order for family provision is contained in the relevant legislation.
Contesting a will and the time of inadequacy of provision
This question, relevantly, falls to be decided having regard to facts as they exist at the time of the hearing, not at the time of the death (Nicholls v Hall [2007] NSWCA 356 at [40]). Other states differ.
Rebuttable presumption in the transfer of gifts
There is a rebuttable presumption that moneys paid from a parent to a child are advanced by way of gift: Nelson v Nelson (1995) 184 CLR 538.
Contesting a will while in prison
Pursuant to section 4 of the Felons (Civil Proceedings) Act 1981, a person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.
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