Statutory will applications : a practical guide

✍ Scribed by Sam McCullough; (Barrister) Richard Williams

• Publisher: LexisNexis Butterworths
• Year: 2013
• Tongue: English
• Leaves: 551
• Edition: 1st edition.
• Category: Library

✦ Table of Contents

Full Title
Dedication
Copyright
Foreword
Preface
Table of Cases
Table of Statutes
Table of Contents
CHAPTER 1 Introduction
The Origins of the Jurisdiction in England and Wales
The ‘Substituted Judgment’ Approach
Re L (WJG): ‘brief interval of sanity’
Re D(J): five ‘principles’ or ‘factors’
Difficulties with the Re D(J) approach
Re C (a patient): ‘normal decent person’
G v Official Solicitor
The Change of Direction in England and Wales: Best Interests
Re P
Re D (Statutory Will)
Re JC
The Development of the Australian Legislation
Victoria: 1985 Report
New South Wales: 1989 Discussion Paper and 1992 Report
South Australia: Wills (Miscellaneous) Amendment Bill 1993 (SA)
Victoria: 1994 Report and the draft Wills Act 1994 (Vic)
Queensland: 1994 Issues Paper
National Committee for Uniform Succession Laws: 1997 Report
The Enactment of the Australian Legislation
Case Law in Australia
Boulton v Sanders
Re Fenwick
The Extent of Statutory Will Applications to Date in Australia
Australian Capital Territory
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia
CHAPTER 2 The Statutory Framework
Scope of Jurisdiction
Jurisdiction of the Guardianship and Administration Board in Tasmania
General Statutory Scheme
Key Features
Standing to Apply
Statutory Wills for Minors Lacking Testamentary Capacity
The Two-Stage Approach
Threshold Requirements
Lack of testamentary capacity
The ‘core test’
Appropriate for an order to be made
Appropriate applicant
Representation of persons with legitimate interest
Information to be Provided by the Applicant
Procedural Requirements Concerning the Making of the Application
Hearing of the Leave Application
Hearing of the Substantive Application
Orders that Can be Made on the Substantive Application
Evidence
Revision of Draft Will or Codicil by the Court
Separate Representation of the Proposed Testator
Execution of the Will, Codicil or Instrument of Revocation
Retention of the Will, Codicil or Instrument of Revocation
Privacy
Costs
Effect and Recognition of Statutory Wills
Testator Who Regains Capacity
Possible Statutory Reform: Victoria
CHAPTER 3 When a Statutory Will May be Required
Introduction
Adjusting Beneficial Entitlements Under on Existing Will or On Intestacy
The carer parent versus the absent parent
Expression by testator of changed testamentary intentions
Relationship between proposed testator and beneficiary ended
Positive misconduct by beneficiary
Improvement in poor relationship
Including, or increasing, benefits to worthy recipients
Other changes in circumstances
Resolving Problems With an Existing Will or Intestacy
Lapsed gift
Avoiding property passing as bona vacantia
Adeemed gift
Concern that a previous will was made when testamentary capacity lacking
Previous will missing
Previous will defective
Avoiding potential construction and rectification applications
Avoiding other estate litigation — family provision claims
Estate Planning
Asset protection
Tax planning
Social security and aged care means test planning
Protection of a vulnerable beneficiary
CHAPTER 4 Acting for the Applicant
Overview
Preparing the application
Conducting the application
Identifying the Client and the Appropriate Applicant
Identifying Persons Who Should be Named and Served
Identifying the Orders Sought and Whether Advice Required in Other Jurisdictions
Meeting the Threshold Requirements
Lack of testamentary capacity
The ‘core test’
Appropriate for an order to be made
Appropriate applicant
Representation of persons with legitimate interest
Providing the Listed Information
Evidence of lack of testamentary capacity
Draft of the proposed will, codicil or instrument of revocation
Evidence of the proposed testator’s wishes
Evidence of the terms of any previous will
Evidence of persons who might be entitled to claim on intestacy
Evidence of likelihood of potential family provision claims
Evidence of circumstances of persons for whom the proposed testator might be expected to provide by will
Evidence of gifts that might be expected to be made for charitable or other purposes
Any other relevant facts
The Costs Position
Preparing the Originating Process
Meeting Procedural Requirements
Filing and Serving the Material
Consultation, Negotiation and Mediation
Preparing the Material for Court
Leave Application, Substantive Application and Directions
Responding to Adjournment Requests
Revising the Draft Will, Codicil or Instrument of Revocation
Oral Evidence and Cross-Examination
Maintaining the Proposed Testator’s Privacy
Submissions as to Costs
Arranging Execution of the Will, Codicil or Instrument of Revocation
Does the Statutory Will Require Review and Update?
Steps to be Taken Where Testator Regains or Acquires Capacity
CHAPTER 5 Acting for Other Interested Persons
Introduction
Separate Representation for the Proposed Testator
New South Wales and the Australian Capital Territory
South Australia
Other jurisdictions
Separate Representation for Other Persons
The Position of an Administrator or Attorney for the Proposed Testator
Direct Instructions from the Proposed Testator
Other Categories of Interested Persons
South Australia: Public Advocate
Different Methods of Participation
No involvement
Providing practical assistance
Participating in negotiation or mediation
Passive participation
Active participation
Potential Grounds for Opposition
CHAPTER 6 Family Provision
Introduction
Approach by the Courts Deciding Statutory Will Applications
Family Provision Claims Against Estates Where a Statutory Will has been Made
New South Wales
Release of rights
Notional estate
CHAPTER 7 Costs
General Principles
Successful applications
Unsuccessful applications
Discontinued applications
Examples of Costs Orders
Would Specific Statutory Costs Provisions be Desirable?
CHAPTER 8 Review of Case Law
Australian Capital Territory
Re DH; Application by JE and SM
New South Wales
Re Fenwick; Application of J R Fenwick & Re Charles
AB v CB
Application by Peter Leslie Kelso
Re Estate of Crawley
Application of Sultana
Application of Wosif Elayoubi
Re Levy Estate — Application of Samuels
Re Will of Jane
Hausfeld v Hausfeld
Re Estate of S
Scott v Scott
Burns v The Estate of Troy Mitchell Burns, a Protected Person
Northern Territory
Queensland
Re Winstanley
Re Joachim
Deecke v Deecke
Re Weick
Bielby v Denny
Payne v Smyth as Litigation Guardian for Welk
Bock v Bock
Re Keane; Mace v Malone
Hickson v Humphrey
McKay v McKay
Wickham v Smith
Re Matsis; Charalambous v Charalambous
Sadler v Eggmolesse
Re Kann
Lawrie v Hwang
Doughan v Straguszi
South Australia
Public Trustee v Phillips No SCCIV-03-800
Bryant v Blake
Hoffman v Waters
Jeavons v Chapman (No 2)
Re Rak
Griffin v Boardman
Re Grace Geraldine Brown
Re Martina Pieternella de Jager
Re Manley
Tasmania
CMPA (Statutory Will)
EKI (Statutory Will)
Victoria
Monger v Taylor
Hill v Hill
Re Fletcher; Ex parte Papaleo
State Trustees Limited v Hayden
Re Palmer
Boulton v Sanders
De Gois v Korp
Plowright v Burge
State Trustees Limited v Do and Nguyen
Saunders v Pedemont
Western Australia
In the Will of Doris May Frances Davies
CHAPTER 9 Extracts from Legislation and Procedural Rules
Australian Capital Territory
Wills Act 1968 (ACT) Part 3A
New South Wales
Succession Act 2006 (NSW) Chapter 2, Part 2.2
Northern Territory
Wills Act (NT) Part 3
Supreme Court Rules (NT) regs 88.05B and 88.05D
Queensland
Succession Act 1981 (Qld) Part 2, Division 4, Subdivision 3
South Australia
Wills Act 1936 (SA) Part 2, Division 2
Probate Rules 2004 (SA) r 98
Tasmania
Wills Act 2008 (Tas) Part 3, Divisions 2 and 3
Supreme Court Rules 2000 (Tas) r 803
Victoria
Wills Act 1997 (Vic) Part 3, Division 2
Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) Order 17
Western Australia
Wills Act 1970 (WA) Part XI, Division 1
Supreme Court Consolidated Practice Directions 2009 (WA)
England and Wales
Mental Health Act 1959 ss 101, 102(1) and 103(1)
Mental Capacity Act 2005 ss 1 and 4
CHAPTER 10 Precedents
Checklist for Taking Initial Instructions
Correspondence
With applicant client
With medical practitioner
With interested persons, giving notice of proceedings
Form of Orders
Sample Execution Clause
CHAPTER 11 Case Studies
Introduction
Case Study 1: ‘Nil Capacity’ Case
Facts
Analysis
Case Study 2: Changing Gifts in an Existing Will, in Contested Circumstances
Facts
Analysis
Case Study 3: Statutory Will for Tax and Asset Protection Planning
Facts
Analysis
Catchword Index
Index