Term
| What court has jurisdiction in respect of all matters concerning the estates of deceased persons? |
|
Definition
|
|
Term
| What is a grant of probate? |
|
Definition
| A certification by the SC that a person or particular persons are authorized to carry out the administration of the deceased estate; relying on a valid will; person is an executor. |
|
|
Term
| How can an executor be appointed? |
|
Definition
| The will may appoint an executor, it may be implied through the will, or the testator may nominate a person to appoint an executor |
|
|
Term
| When the administrator is dealing with the bank, what may they sometimes require? |
|
Definition
| They may require the production of the grant of probate to prove it is safe to deal with the administrator. Also, company may require production of the grant before registering the personal rep as shareholders in place of the deceased. |
|
|
Term
| What's the process of applying for a grant of probate? |
|
Definition
| You have to advertise your intention to apply for a grant; apply to the SC w/ an affidavit of the supporting facts; others may oppose the grant |
|
|
Term
| When does the Public Trustee get involved? |
|
Definition
| When noone else is willing. |
|
|
Term
| When would you need to provide letters of administration? |
|
Definition
| Where there is no valid will, someone is willing to act will apply to the SC for letters of administration; functional equivalent to a grant of probate |
|
|
Term
| When will you not need a grant of probate? |
|
Definition
In instances where there is a valid will appointing executors (sometimes not necessary to apply for probate)
When dealing with land (s 111 LTA) - Three provisions re how to deal with a will when passed through land. Checkemout. |
|
|
Term
| From where does an executor get title to deceased person's property? |
|
Definition
|
|
Term
| What are the relevant provisions for authority of executors in the Succession Act? |
|
Definition
|
|
Term
| Does a protection exist for people acting informally (executor de son tort)? |
|
Definition
| Yes, where a person has no authority to act as a personal rep, but performs the acts of a personal rep, is considered to be duly appointed and held liable accordingly- see s 54(1) SA |
|
|
Term
| What was the case that established when the court may refuse to grant probate? |
|
Definition
Re Jensen:
Exclusive Brethren, tried to exclude one brother from administering the estate by arguing that they lacked confidence in his ability to administer. Justice held this was religiously motivated and gave the excluded son probate alone. Was evidence father wanted excluded son and one other son to administer. Important point: Need to ask- what was the intention of the settlor as to the administration of the estate? |
|
|
Term
| Case for removing an executor? |
|
Definition
Williams v Williams
Executor who was father of deceased. Executor had engaged in unauth withdrawals of estate funds. Can remove executor based on s 6(4) SA which gives the ct the same jurisdiction as it has with respect to trustees under the Trusts Act (consider esp s 80- power to remove trustees). |
|
|
Term
| Where are the Duties of Personal Representatives contained in the SA? |
|
Definition
| s52(1) but not an exhaustive list, also use general law for trustees |
|
|
Term
|
Definition
| gift of real property; specific or residuary; cannot be general |
|
|
Term
| Def: Legacy/bequest (I bequeath…) |
|
Definition
| gift of anything other than land; personalty; can be specific, general, pecuniary, demonstrative and residuary |
|
|
Term
| Def: Specific legacy or devise |
|
Definition
| an identifiable asset; can be distinguished or severed from the testator’s estate. Ineffective if it no longer exists (ademption). |
|
|
Term
|
Definition
| Do not identify any particular property as the subject matter of the gift. Eg 1000 shares in ABC ltd. These general legacies are never the subject of ademption. |
|
|
Term
| What obligations do executors have in terms of general legacies? |
|
Definition
| It would be the executors obligation to acquire property of that description, or give the beneficiary sufficient money from the estate so that the beneficiary could acquire the bequeathed property. Only time when a general disposition is ineffective is where such property cannot be purchased with money, or does not exist. |
|
|
Term
|
Definition
| monetary legacy. Usually a general disposition. |
|
|
Term
| Def: Demonstrative legacy |
|
Definition
| A gift that is charged on a specific fund or piece of property. Eg. $1000 from a particular bank account. If the property does not exist, it is not adeemed, and the executor is still required to pay the legacy out of the trust estate. |
|
|
Term
| Def: Residuary legacies and devises |
|
Definition
| consists of property that is not specifically devised or bequeathed in the will. |
|
|
Term
| What happens if there is no residuary disposition, or it is invalid (as happened in Diplock for lack of charitable purpose)? |
|
Definition
| Then the residual property is dealt with under the intestacy rules- it will be divided among the testator’s next of kin (s 35 SA). There is a partial intestacy. |
|
|
Term
| SA 1981 (Qld) includes provisions to reduce the incidents of residuary dispositions failing. What section is this? |
|
Definition
| S 33O- Disposition of real estate or personal estate may include both in particular case |
|
|
Term
| What is intermediate income (in terms of rights of beneficiaries to income)? |
|
Definition
| Income earned between the date of the testator’s death and the date of distribution. Eg rent, share dividends, or interest. |
|
|
Term
| Who has the right to the benefit of specific legacy or devise? |
|
Definition
the income goes to the beneficiary who receives the specific legacy or devise.
RE Rooke |
|
|
Term
| Are you entitled to a right to intermediate income if there is a general legacy? |
|
Definition
| No, but s52(1)(e) Personal representative of deceased person under a duty to pay interest upon any general legacy. |
|
|
Term
| When does ademption occur? |
|
Definition
| Occurs where the asset has ceased to exist or is no longer owned by the testator at the date of the testator’s death, and so there is nothing for the legacy or devise to operate upon |
|
|
Term
| When does a will take effect? |
|
Definition
|
|
Term
| Will of Smith case? Please explain... |
|
Definition
| At the date of making the will, the testator owned no. 44 X st, but at the date of death the testator owned no. 46 X st. Reading the will at the date of the testator’s death, the will is capable of referring to either house, so it referred to no 46. |
|
|
Term
| What happens if the intended beneficiary predeceases the testator? Relevant SA provisions? |
|
Definition
Disposition in a will may fail due to lapse.
S 33B SA- Beneficiaries must survive testator for 30 days;
S 33P SA- Disposition of fractional part in particular case;
S 33N SA- Disposition not to fail because issue have died before testator; |
|
|
Term
| Where is the intestacy definition found? |
|
Definition
| S 5 definitions SA: a person who dies and does not leave a will or leaves a will and does not dispose effectively by will a whole or party of the property |
|
|
Term
| Which section stipulates the distribution of residuary estate on intestacy? |
|
Definition
|
|
Term
| Section that establishes the grounds for making an application for people who have not been provided for? |
|
Definition
|
|
Term
| What happened in the case of Re Cobb? |
|
Definition
Involved an application by a female person who had been living with deceased up until the date of his death. Not clear from evidence whether they were a genuine de facto relationship or not.
Q for proving dependency: was the applicant being wholly or substantially maintained or supported?
Judge acknowledged that they were contributing to each other’s support, and the applicant was being substantially supported. |
|
|
Term
|
Definition
| s 41(8) SA - within 9 months of death. |
|
|
Term
|
Definition
| Testator’s Family Maintenance; The term for dealings when a family member feels they have not been adequately provided for by the will. |
|
|
Term
| Who has jurisdiction to hear these matters? |
|
Definition
S 68(1)(b)(x) District Court of Queensland Act 1967- QDC has jurisdiction to hear matters for family provision pursuant to the Succession Act 1981, sections 40 to 43, provided the amount is < $750,000
S 6 SA: QSC has jurisdiction to hear and determine all testamentary matters. |
|
|
