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Trusts B Topic 7
Administration of Deceased Estates
38
Law
Undergraduate 3
11/04/2013

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Term
What court has jurisdiction in respect of all matters concerning the estates of deceased persons?
Definition
SC (SA s6)
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
s45
Term
What are the relevant provisions for authority of executors in the Succession Act?
Definition
s45
s46
s49
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
Def: Devise
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
Def: General legacies
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
Def: Pecuniary legacy
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
s33E SA.
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
s35 SA
Term
Section that establishes the grounds for making an application for people who have not been provided for?
Definition
SA s 41(1)
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
Time limit for TFM?
Definition
s 41(8) SA - within 9 months of death.
Term
What is TFM?
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.
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