Suicide note a will?
In Costa v The Public Trustee of NSW [2008] NSWCA 223, the Court of Appeal considered whether the deceased intended a suicide note to constitute his will. The Court of Appeal concluded that the deceased did intend the suicide note to be his will. Hodgson JA gave weight to the making of the document on a solemn unique occasion, that the document was a last message to his parents and that the intended recipients of the document were apparently close to the deceased: at [27]: Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594 Slattery J at 99.
A beneficiary’s silence in a contested will claim
[W]hat inference, if any, should be drawn from the beneficiary’s silence? … The answer is, in those circumstances, that the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 at 535, per Ormiston J … Hallen AsJ in Harkness v Harkness (No 2) [2012] NSWSC 35 at 106 & 108.
The purpose of a costs order
The purpose of a costs order is to compensate, or indemnify, the person in whose favour it is made, not to punish the person against whom it is made: Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ.
No age limit on family provision claims
The Act [Succession Act 2006 (NSW)] does not confine the power to make a family provision order for the benefit of a child under the age of 18. There is no age limit placed on a child making an application or an order being made in her, or his, favour: Fallow v Mullins [2012] NSWSC 406 Hallen AsJ at 31.
Freedom of testation
The court’s discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation … Freedom of testamentary disposition remains a prominent feature of the Australian legal system: Lajcarova & Anor v Todorov [2011] NSWSC 522 Hallen AsJ at 91.
Succession Act 2006 (NSW) section 8: When may the Court dispense with the requirements for execution, alteration or revocation of wills?
In order to satisfy s 8, it is necessary that three matters be demonstrated. First, there must be a document. Second, that the document must purport to embody the testamentary intention of the deceased. Third, there must be evidence to satisfy the Court that the deceased intended that the document, without more, would operate as part of his or her will: per Powell JA in Hatsatouris v Hatsatouis [2001] NSWCA 408 at [56]: Brown v Hill [2012] NSWSC 464 Stevenson J at 26.
Competing contested will claims: spouse verses adult child
[T]here is no sound basis to lay down any general rule or presumption as to how the competing claims of a widow or widower and an adult child should be resolved. What is necessary is the application of the statutory requirements, as explained in Singer v Berghouse: Brown v Hill [2012] NSWSC 464 Stevenson J at 140.
Construction of a will
The Golden Rule of construction of wills stipulates that a court should adopt a interpretation which will not lead to an intestacy or partial intestacy … The rationale behind the rule is simple. Where a person executes a will in solemn form, it must be assumed that he or she did not intend to die intestate … A court ‘never inclines towards intestacy, it is a dernier ressort in the construction of wills’: David Haines QC in Construction of Wills in Australia, (2007) at 3.3.
The Singer v Berghouse test
In applications under the Family Provision Act 1982 the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that a Court must take. These comments are equally applicable to claims under the Succession Act 2006: Hatton v Hatton [2012] NSWSC 182 Associate Justice Macready at 48.
Rejection of a reasonable offer of settlement
The rejection of a reasonable offer of settlement is now more commonly seen as a basis for either denying a successful applicant some part of his or her costs or indeed, ordering payment to the estate of part of its costs: Underwood v Underwood [2009] QSC 107 Jones J at 34.
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