QUESTION
PROBATE & ADMINISTRATION
ASSIGNMENT 1: VALIDITY OF WILLS
DUE:
In each of the following situations state whether in your opinion the document which comes into existence would be considered to be a valid will under the Wills Act. Give reasons for your answer.
a) George Ohwell decides to save on lawyers fees by scribbling a will on the back of an envelope. He then asks his friend Ulysses Joyce to witness his signature as he signs the document. On the following day he asks another friend, Ernest Wilde to put his signature to the document as a second witness to the execution of the will.
b) Patrick Whyte, a 17 year old executed his will while he was horribly drunk at his own wedding reception last night. Today he cannot remember signing the document, let alone what was in it.
c) Lotsa Bubbles decided to make her will in the form of a video recording of herself reading from a script in which she had written the terms of her will. Two friends sat beside her as witnesses to the making of her will. Apart from this video will and the script for it there is no other document which could be her will.
d) Jane Austen executed a will in accordance with the Wills Act some years ago and appointed her friend William Holden as executor in that document. William died before Jane, leaving Jane with no executor at the time of her death. Jane’s daughter is now wondering whether this lack of an executor has invalidated her mother’s will.
- State briefly three ways in which a will that has been executed in accordance with the Wills Act may be altered or revoked.
- If you are a law clerk working in a solicitor’s office, how might you go about preparing a will on behalf of a person who suffers from severe dementia in circumstances where you cannot be certain that this person understands the nature of a will
PROBATE AND ADMINISTATION
ASSIGNMENT 2: DISTRIBUTION OF AN ESTATE
- Bertha has lived with Cyril for several years since Cyril’s wife died. Bertha maintained the house and business accounts while Cyril farmed the property where they lived. Bertha put some of her own money into the property several years ago, but the title has always been in Cyril’s name. Cyril died recently and Bertha has discovered that Cyril left a will leaving the property to his 3 children. Bertha needs your advice as to her entitlement if any to Cyril’s property.
- Timothy died recently. After his death it was discovered that he failed to make a will during his lifetime. He is survived by his wife Anna and their 2 children Betty and Bart,
After payment of all debts, expenses and fees the following assets are available for distribution:
Furniture and chattels $40,000
Residuary Estate $260,000
Total assets: $300,000
Advise the Administrator of the estate as to the respective entitlements of the family surviving.
- Explain the following concepts in estate distributions:
a) Taking by representation;
b) Per stirpes (by steps)
ASSIGNMENT 3 Application for a grant of probate of a will.
Sarah Olive Songbird died on 1 July 2011. She was 86 years old and was survived by:
Her husband Ronald Albert Songbird, of 13 Goodluck Street, Williamstown;
Her son Arthur Songbird, of 5 Whistle Crescent, Spotswood, Vic
Her married daughter Emma Cantata of ‘Whispering Willows’, Woodwynd Street, Sealake Vic
Sarah’s assets at the time of her death are:
!2 Harmony Street, East Melbourne valued at $640,000
A bank account with NAB Collins Street with $1,000
Jewellery valued at $10,000
Shares in Mornington Bank, 2000 shares valued at 12.00 each
A sports car, Mercedes, reg SARAR 1 valued at $70,000
A rare stamp collection valued at $100,000.
Sarah leaves liabilities of $12,000 to Mornington Bank for a personal loan.
A will has been found naming her daughter Emma as sole executor. The date of the will is 3rd June 2002.
The witnesses to the will were her husband Ronald and you who are a law clerk for the firm that made the will.
Prepare an Application for a grant of probate of the will.
ASSIGNMENT 4: CONSTRUCTION OF A WILL
The following is George Washington’s Will which he made in 2004.
This is the last will of me GEORGE WASHINGTON of Starstripe Avenue, Bundoora, 3083, Victoria.
- I hereby revoke all former wills and testamentary dispositions made by me.
- I appoint THEO RUDD of President Road Preston, 3072, Victoria to be executor of this my will and trustee of my estate.
- I give everything to my wife WILMA WASHINGTON.
- If Wilma does not survive me then I give it all to my children.
- CHUCK can have the Ford Mustang car that I promised to him.
- SHIRALEE can have my antique clock.
- My trustees shall have all of the powers of trustees under law at the time of my death.
- I want my body to be cremated and the ashes scattered around the cherry tree at home.
In witness whereof I have hereunto set my hand
This 17th day of December 2004.
SIGNED and ACKNOWLEDGED by the said GEORGE WASHINGTON:
………………………………………………………………………
(signed “Billy Washington”)
In our presence:
Witness…………………………………………………………….
Witness…………………………………………………………….
Your client is Theo who is concerned that the terms of the will are not entirely clear. Probate has already been obtained by your firm on Theo’s behalf as executor of the will.
Theo instructs you that:
George was born in the United States and was known as “Billy” when young but has always been known as George in Australia.
George and his Australian wife have 2 children, Sarahlee, aged 10 and Chuck aged 12.
George had told his son Chuck that he could have the Ford Mustang which he owned at the time of making the will but would not be allowed to drive it until he turned 18. George had since bought another Mustang in not nearly as good condition and owned both vehicles at the time of his death.
Theo also instructs that George had another son, Gerry, from a previous relationship but George’s wife Wilma did not know about him. Gerry lives in the United States and is 23. At the time of his death George was paying maintenance to his former wife Shirahlee Washington.
Wilma, George’s wife, was in very bad health and died 2 weeks after George.
Questions
- What are the possible ambiguities in George’s will?
- How might you resolve the ambiguities if you were the Court?
- How would the estate then be divided?
SOLUTION
Assignment 1
1. a.) As we see in the present case the matter would be regulated by Section 7 of the Wills Act 1997. It specifically says about the execution of will. It specifically says that a will must be executed by the testator in the presence of two witnesses. It also specifies that the will would be valid if it sis signed by two witness who may sign in the presence of each other but it is not compulsory but the presence of the testator is compulsory.[Section, 7, Wills Act, 1997]. Thus as per the statute there is no such requirement given as to what would be ideal format of the will thus the only criteria by which a will is to be executed is given in Section 7 and as per the section any document fulfilling the criteria under the section may be considered as a valid will. It would just be necessary to have witness signature and anybody can be a witness unless prohibited by the act [Section 10, Wills Act, 1997]. Thus under the act the present document in the case would always be considered as a valid will as it fulfills the criteria under the statute.
b.) We see generally it is presumed that the will is executed by the testator when he is fully in his senses but as per the statute it is mandated that the testator must have an intention to execute the will as we in the instant case there is no such intention as the testator was not in his actual senses while executing the will thus the will is not a valid will.
c.) As per the statute the will must be in the written form and it is mandated to be signed by the testator. Thus as we see there is no such written document present in the instant matter thus the will would be considered invalid.
d.) No the will is not invalidated under the act as there is a provision in the hands of the testator to allow the personal representative of the testator to execute the will who may even be spouse of the testator.[Section, 39, Wills Act, 1997].
2. The revocation of the will is specifically inserted in the act and is governed by the Section 12 of the Act. As the section is very specific in nature it says that the will may be revoked by:
• Testator or by some other person in the presence of testator by burning, tearing or destroying the will document with an intention to revoke it.
• Testator or some other person in the presence of the testator by writing on the will or dealing with the will in such manner that the court is satisfied from the state of the will that there is an intention to revoke the will.
• By a later will which replace the present will.
3. The situation given the present case is also dealt under the act. As we see the act specifies the situation of persons who does not have a testamentary capacity [Section, 21, Wills Act 1997]. The section certifies that the person who does not have a testamentary capacity can make a will subject to:
o The order of the court authorizing a will to be made on specific terms or revoked on behalf of a person who does not have a testamentary capacity.
o Any person may make an application for an order under this section if the person has first obtained leave of the Court to make the application.
Assignment 2
1. If we see the estate laws it is allowed that a de facto partner would definitely get a share in the estate of the deceased. The things which Bertha needs to prove in the court of law would be:
• She is the domestic partner of the deceased at the time of his death.
• She has lived with the deceased for more than 2 years.
Now we see that the law specifically says that the domestic partner is entitled to the share in the estate if these two things are proved. Moreover if the spouse has died already then the domestic partner would be entitled for the share of the spouse in the estate of the deceased [Probate Office, Deceased Estate FAQs].
Moreover it is also specified by the statute that the partner has a right to obtain his share in the shared home of the deceased [Section 37 A, Administration and Probate Act, 1958]. Only it is to be proved that the partner was living with the deceased in that home at the time of the death of the deceased.
The process is very simple as the statute has specifically makes it mandatory that a time of 3 months is given to the partner to get aware of her rights and claims and the personal representative is entitled to entertain the claim of the partner.
Also we see in the statute the distribution is also explained very specifically in the statute [Section 51, Administration and Probate Act, 1958]. The statute certifies that residuary estate would go to the issue but the partner is entitled for her share in the estate.
Thus by these provisions Berths will have the remedy to receive her share in the estate as it is very clear that there would be no difficulty for Bertha to prove her de facto partnership with the deceased.
2. Death without making a will is called ‘Intestacy’ thus normally if we see it is very difficult to distribute estate without a will but as we see the law has made specific provisions for the distribution of the property in cases of intestacy.
As we see there is a provision in these cases for the appointment of administrator. Generally as the distribution is a matter of family thus appointment through court is preferred as administrator would be unbais while doing his work. Thus after that it is the duty of the administrator to distribute as per the act [Rose Lawyers, Intestacy in Victoria]. Now in the instant case the property shall be distributed as per Section 52 of the act.
As we see the manner of distribution as per the section would require that the children would inherit one third of the portion of the property left and will be distributed among them equally. The rest of the property would be inherited by the wife of the deceased. There would be no difference in the share of both the children because as per the act they are treated equally having no differentiation between a male or female issue of the deceased.
3. Both the concept deals in the estate distribution and per stripes means taking by representation or by class. In estate distribution it means after the death of the holder the closet persons would take the equal share and if any closet person had already predeceased the deceased living the issues the issues will have the right to taking by representation but only to the extent that their parent were entitled to get[Julie Garber, What’s the Difference Between Per Stripes and Per Capita Distributions]. This process is most commonly used in the estate planning as it covers a typical family situation where there is no future liability and chances of disputes are even less.
In the Australian context if we see the distribution is basically based upon this method as it is less complicated. But in Victoria nephew and nieces of the deceased is not regulated by this method they are entitled through per capita or per head count method. This method aims to remove ambiguities and makes the distribution simple as it does not take into account the future issues and only the direct kin is involved. Thus it is also a very convenient method as it allows the personal representatives to reserve the share of missing relatives. Moreover it is been severely criticized for being an un equal method as it treats the relatives of a same plain unequally. For ex : Deceased’s grandchild will get a bigger share if he is the only child while a grandchild from another son will get a lesser share if he has surviving siblings under this method.
Thus even after having its pros and cons it is been accepted as a valid method here because it is very simple and convenient thus making the chances of disputes very less.
Assignment 3
To,
The Officer Concerned
Supreme Court of Victoria
Subject: Application for the Grant of Probate
Dear Sir,
I Emma, daughter of deceased Sarah Olive Songbird is making this application to the Hon’ble chair for the grant for probate of my deceased mother. As I was named the sole executor in the will that has been prepared. In the present application the applicant intends to describe the intention and details of the property of the deceased including the assets and liabilities.
The applicant is the daughter of the deceased and sole executor in this will. The other survivors and beneficiaries of the will include:
• Her husband Ronald Albert Songbird, of 13 Goodluck Street, Williamstown;
• Her son Arthur Songbird, of 5 Whistle Crescent, Spotswood, Vic.
This application puts forward the assets of the deceased which include:
• !2 Harmony Street, East Melbourne valued at $640,000
• A bank account with NAB Collins Street with $1,000
• Jewellery valued at $10,000
• Shares in Mornington Bank, 2000 shares valued at 12.00 each
• A sports car, Mercedes, reg SARAR 1 valued at $70,000
• A rare stamp collection valued at $100,000.
Liabilities of the deceased include:
• $12,000 to Mornington Bank for a personal loan.
The distribution of the property would be as according to the intention of the deceased which has been expressed in the will. The will has been prepared in the manner and style as engrafted under the Wills Act 1997, for the State of Victoria and it is ensured that all the procedures and legalities are followed as per the act. The deceased had all the authority and power as granted by the statute to make a valid will and it has been made with the consent of the deceased and in full senses of the deceased while taking each and every factor into account.
The method of distribution is with the manner and style as intended by the deceased and it was prepared by taking into account all the procedures and legalities as suggested by the Administration and Probate Act, 1958. Wherein every person has been distributed the share in the estate as allowed by the statute of Victoria.
It is pertinent to mention that the deceased is survived by her husband, her son and me the daughter and sole executor of the present will. The will has been prepared in consonance with the Wills Act 1997 and in the presence of witnesses as allowed by the act. The witnesses to the will are the husband of the deceased and the law clerk of the law firm which has prepared the will. The will states to eliminate all the disputes regarding the properties of the deceased as the details of the property and the distribution of the property is clearly specified in the manner and style in the will. The deceased estate holder intention is clearly expressed in the will and she has taken all reasonable care and precaution in making the will. The per stripes method of distribution is followed under the will as allowed by the State of Victoria.
Pertinent factors are well taken care of and will is made with absolute application of mind and in the manner and style as decided by the estate holder with the extensive discussion with the lawyers taking into account what is allowed by the statute and the public policy. The manner to dispose of the liability is also specified in the will and as desired by the deceased.
Thus after these specifications I have been given the powers as conferred by the will to be the sole executor of the present will by the deceased who has desired to execute the will. It has been affirmed by the other witnesses as would be evident from the reading of the will. Thus it would also be pertinent to mention that the deceased desired no family quarrels and clear specifications to be accepted by the officer concerned.
It is most humbly requested by the applicant that if the officer concerned is satisfied by the contents and manner of distribution as desired by the will then after testing its authenticity it is most humbly requested to grant of probate to the executor thus making it simple for her to carry out the will in the manner and style provided. The applicant would be very obliged to receive the allowance of the application.
Dated: April 20, 2012.
Thanking you
Your’s Sincerely
Emma Cantata
‘Whispering Willows’, Woodwynd Street, Sealake Vic
Assignment 4
1. As we see there are many possible ambiguities in the present will it would be very pertinent to mention:
• The name of the testator is not clear and it is to be clarified as per law as what is the original name from the records of his birth and death which would be official.
• There are two ford Mustang cars it is to be certified that which would be given to Chuck as per the will. So there must be an alteration to that effect.
• As per the statute of Victoria all the issues and surviving partners of the deceased are eligible to get their share as per the statute and it is to be seen that the other son form the different wife also get the share in George’s estate.
2. The statute specifically states the process in these types of cases and very comprehensively the ambiguities can be removed by the help of the statute. As we see the intention of legislature is very clear in these types of matters and it seeks to implement whatever was the intention of the testator so that no person close to testator should suffer because of the errors which are not the fault of the beneficiaries of the will.
The statute makes very specific and clear demarcation in the text itself for these types of cases. As we see the Wills Act of 1997 we clearly figure out that under Division 3 of the act the court authorized rectification is allowed as per the act. Division 3 comprehensively discusses the process under Section 31 and 32 of the said act.
We see Section 31 gives the powers to the court to order rectification to be carried out in the will the process as per the section is:
• It is to be proved to the satisfaction of the court that will is not according to the testators intentions and there are many ambiguities and clerical errors which disturbs the exact intention of the deceased and jeopardize the interest of the beneficiaries.
• Theo should make the application within 6 months from the grant of probate to rectify the will as per the statute and it is to be seen that he is making the application for genuine cause as it is in the present case.
• The court has powers to extend the period of making the application if it is satisfied that it is necessary for the protection of interest of the party and it is upon the discretion of the court to make the order of extension of time.
• The executor or personal representative of the testator would not be liable under the act if the property has been already distributed to the spouse in good faith and he was not aware of any rectification application as per the act.
• As per section32 any order of rectification by the court would be attached along with the will and the court has the powers to retain the probate and letters of administration of the will.
Moreover the statute of Distribution and Probate Act, 1958 also in division 4 discusses about the problem in general makes rules for distribution of the properties in these types of cases. Thus these processes would need to be followed while distribution of the property of the deceased in my opinion.
3. As per the Distribution and Probate Act, 1958 the property of the deceased would be distributed. We see the act clearly certifies that:
• As per the act all the issues of the deceased would be getting the share of the properties including the son from the previous wife of the deceased.
• Wilma will get her share as at the time of the death she was alive and but the share would be divided as per the act between her and the other partner as the deceased died leaving more than one partner.
• Along with the rectification it would be pertinent for the court to add provisions in will discussing the right and share of the other spouse and the son of the deceased.
• It would be pertinent for the court to regulate the manner of distribution as envisaged by Section 51 and 51 A of the Act, such that no interest is jeopardized.
• Wilma’s share would not be taken away by Sarah even after her death as she was alive at the time to George’s death and she was the one who would be called the spouse or the domestic partner legally after the death of George.
Thus these would be manner that would regulate the disputes to be resolved in the present case as it would reduce the complexities and reduce the risk of disputes. Thus by these processes it is very clear that the property would be just and equitably distributed.
References:
1. Wills Act, 1997, viewed on 19th April 2012, <http://corrigan.austlii.edu.au/au/legis/vic/consol_act/wa199791/>
2. Probate Office, Deceased Estate FAQs viewed on 19th April 2012 <http://www.supremecourt.vic.gov.au/home/practice+and+procedure/probate+office/deceased+estates/supreme+-+deceased+estates+faqs>.
3. Administration and Probate Act, 1958 viewed on 19th April 2012 <http://corrigan.austlii.edu.au/au/legis/vic/consol_act/aapa1958259/>
4. Rose Lawyers, Intestacy in Victoria viewed on 19th April 2012 <http://www.roselaw.com.au/intestacy_victoria.asp>.
5. Julie Garber, What’s the Difference Between Per Stripes and Per Capita Distributions viewed on 19th April 2012 <http://wills.about.com/od/estateplanning101/a/perstripvpercap.htm>.
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