Category Archives: Succession

Palmer v Bank of New South Wales [1975] HCA 51 | 29 October 1975

ON 29 OCTOBER 1975, the High Court of Australia delivered Palmer v Bank of New South Wales [1975] HCA 51; (1975) 133 CLR 150 (29 October 1975).

http://www.austlii.edu.au/au/cases/cth/high_ct/133clr150.html

A promise to leave one’s estate to another upon their death is not a promise to preserve the property of the estate until death. An express contract is necessary to curtail how a testator uses his or her property in their lifetime.

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Singer v Berghouse [1994] HCA 40 | 14 September 1994

ON 14 SEPTEMBER 1994, the High Court of Australia delivered Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201; (1994) 123 ALR 481; (1994) 68 ALJR 653 (14 September 1994).

The High Court ruled that the determination of family provision disputes involves a two stage process: per Mason CJ, Deane and McHugh JJ (at [18]).

The first stage requires an assessment as to whether the provision for maintenance under the deceased’s will was appropriate having regard to mattes including “the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty”. The question for consideration is whether or not the applicant has been left without adequate provision for proper maintenance as well as education and advancement in life?

If it is found that the applicant has been left without adequate provision for proper maintenance, the second stage requires an assessment of what is a proper level of maintenance and adequate provision to make an order in favour of the applicant. The court must be “mindful” that in some circumstances “a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance”, such as where there are no assets and making an order would affect the testator’s arrangements with creditors.

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Russell v Scott [1936] HCA 34 | 12 August 1936

ON 12 AUGUST 1936, the High Court of Australia delivered Russell v Scott [1936] HCA 34; (1936) 55 CLR 440 (12 August 1936).

http://www.austlii.edu.au/au/cases/cth/high_ct/55clr440.html

Percy Russell and his elderly aunt opened a joint bank account containing funds to be managed by Russell for the benefit of the aunt. Russell made no contributions.

After the death of the aunt, proceedings were instituted by Scott (a beneficiary under the aunt’s will) seeking a declaration that the balance of the account and some funds withdrawn before the aunt’s death belonged to the estate. The trial judge ruled that the balance of the account did not pass to Russell as the benefit was testamentary in nature and had not been made in accordance with the Wills, Probate and Administration Act 1898 (NSW).

Russell appealed the trial judge’s decision.

The High Court found an intention by the aunt to confer upon her death, through survivorship, legal and beneficial ownership of the funds to Russell.  The court therefore allowed the appeal, dismissing Scott’s action on the grounds that that the funds in question did not form part of the estate.

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Underwood v Gaudron [2014] NSWSC 1055

ON 7 AUGUST 2014, the Supreme Court of NSW delivered Underwood v Gaudron [2014] NSWSC 1055 (7 August 2014).

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1055.html

The plaintiff Helen Underwood brought proceedings seeking a family provision order under the Succession Act 2006 (NSW) with respect to the estate or notional estate of her late mother. Named as defendants were her sisters, Mary Genevieve Gaudron (the former High Court justice) and Kathryn Teresa Gaudron.

The plaintiff had no contact with the deceased for 20 years, the estate was relatively small and had already been distributed. The proceedings were commenced more than 3 years after the deceased’s death.

Justice Hallen dismissed the summons with the intention of making no orders made as to costs.

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Probate Administration Act 1898 | NSW | 27 July 1898

ON 27 JULY 1898, the NSW Wills Probate and Administration Act 1898 was enacted. The Act was renamed the Probate Administration Act 1898 in 2008, with part of the Act becoming the Succession Act 2006.

http://www.austlii.edu.au/au/legis/nsw/consol_act/paaa1898259

http://www.austlii.edu.au/au/legis/nsw/consol_act/sa2006138

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Bayssari v Bazouni [2014] NSWSC 910

ON 9 JULY 2014, the Supreme Court of NSW delivered Bayssari v Bazouni [2014] NSWSC 910 (9 July 2014).

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/910.html

The plaintiff made an application under s59 of the Succession Act 2006 seeking provision to be made out of the estate of his maternal uncle’s late wife.

On the facts, the court found that whilst the plaintiff was a member of the deceased’s household, he was not wholly or partly dependant on the deceased nor did he have a close personal relationship with her. His claim was dismissed and he was ordered to pay costs.

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Curnow v Curnow [2014] NSWSC 896

ON 7 JULY 2014, the Supreme Court of NSW delivered Curnow v Curnow [2014] NSWSC 896 (7 July 2014).

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/896.html

The plaintiffs brought an application for a family provision order under the NSW Succession Act 2006. The deceased died intestate with two children of his own (the second and third plaintiffs), a widow (the defendant) and the widow’s daughter/his stepdaughter (the first plaintiff).

The first plaintiff applied on the basis that she was a member of the deceased’s household and was dependent on him; the second and third plaintiffs applied on the basis that they were the deceased’s children.

The plaintiffs were eligible persons entitled to orders for education, maintenance or advancement in life. The court determined that capital lump sums of differing amounts be paid to each of the plaintiffs to enable them to pay off immediate debts as well as an order for their costs.

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Scott v Scott [2012] NSWSC 1541

Scott v Scott [2012] NSWSC 1541 (13 December 2012)

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Sydney & Sydney [2012] NSWSC 350

Sydney & Sydney [2012] NSWSC 350 (12 April 2012)

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RL v NSW Trustee and Guardian [2012] NSWCA 39

RL v NSW Trustee and Guardian [2012] NSWCA 39 (19 March 2012)

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