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Estates

This comprehensive and practical guide assists practitioners to advise and act for clients in all types of estate matters.


An application for probate or letters of administration can be made with ease and confidence. The guide features detailed commentary and all necessary forms and precedents for obtaining a grant, getting in assets and making the distribution. Deeds of release and indemnity and deeds of family arrangement are included.


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MATTER PLAN
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    • “ Duty to keep accounts An executor or administrator has a duty to keep records, or accounts, of how the estate is administered, in accordance with their undertaking to the court to do so at the time of applying for a grant: see r 2.04(2)(c) and r 4.04(2)(c) Supreme Court (Administration and Probate) ... ”
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    • “ See Gifts and bequests – Ademption below. ”
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    • “ ‘Administration’ is defined in s 5 of the Administration and Probate Act 1958 as follows: Administration means with reference to the estate of a deceased person letters of administration whether general special or limited or with the will annexed or otherwise. ”
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    • “ Section 57 of the Administration and Probate Act 1958 provides that the court or the registrar may require a surety against loss as a consequence of a breach by the administrator of their duties to the value of the estate. See Application for a grant of probate or letters of administration below. ”
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    • “ An administrator is defined in s 5(1) of the Administration and Probate Act 1958 as a person to whom administration is granted. In the case of an intestate estate, the persons entitled to a grant of letters of administration are not specifically referred to in the Administration and Probate Act 1958 ”
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    • “ Section 65 of the Administration and Probate Act 1958 allows an executor, administrator or trustee to apply for commission for their ‘pains and trouble’ of administering the estate. The amount must be ‘just and reasonable’ and not exceed ‘Five per centum’. In fact, five per cent is rarely granted. ... ”
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    • “ An administrator or executor is obliged to disclose to the court all assets and liabilities of the deceased. This is done by way of the inventory of assets and liabilities which is annexed to the affidavit in support of the application for a grant of either probate or letters of administration: s 28 ”
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    • “ Any need to apply A grant of either probate where there is a valid will, or letters of administration where there is no will, or there is a will but no appointed executor or where the will does not deal with the whole of the estate, is not always required. There is no legislative requirement to ... ”
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    • “ Revocation of a grant falls within the court’s inherent jurisdiction: Re Gardiner (No 3) [2018] VSC 414, and application is made pursuant to Order 11 of the Supreme Court (Administration and Probate) Rules 2014. Although the only specific provision in the Administration and Probate Act 1958 which ... ”
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    • “ Where there is a will, but no executor is appointed, or where the named executor is unavailable and no substitute is appointed, then an application for letters of administration with the will attached needs to be made. Most commonly in this scenario the applicant will be one of the beneficiaries ... ”
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    • “ Beneficiary in possession of estate property It is the duty of the executor or administrator to get in the estate, including any property held by beneficiaries. If the beneficiary wants to retain the property it can be transferred to them in specie, as part of their entitlement under the will or on ... ”
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    • “ Death of a beneficiary Will ”
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    • “ See Presumption of Death under Death below. ”
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    • “ A bequest is a gift or legacy under a will. See Gifts and bequests – Ademption below. ”
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    • “ It is quite common for a will to include some directions as to how the testator wishes their remains to be disposed of, or even their detailed wishes for the conduct of a funeral service. Such statements are non-binding. At common law a direction in a will about the funeral, burial or cremation is ... ”
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    • “ See also Capacity in the Wills section. In addition to compliance with the factors in s 7 of the Wills Act 1997, or s 9 as applicable, a will requires that the testator had testamentary capacity at the time the will was executed in order to be valid, and arguably also at the time of providing ... ”
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    • “ Section 58 of the Administration and Probate Act 1958 provides that any person may lodge with the registrar a caveat against any application for probate or administration. This must be filed before probate or administration is granted, as the caveat is against the making of the grant. Such a caveat ... ”
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    • “ See Charities as beneficiaries in the Wills section above under Beneficiaries, and Gifts and bequests – Ademption below. ”
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    • “ A codicil is a document that amends, rather than replaces, a previously executed will. The will and codicil will need to be read together to determine if the testator appointed an executor, and if so who are the executors and any substitute executors, and what are the terms of the will. If the ... ”
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    • “ Multiple executors may be allocated specific roles in the will, with one executor to perform specific functions and another to attend to all other matters, for example, a separate literary executor for administration of the copyright and royalty rights of the estate. The ‘default’ position is that ... ”
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    • “ See also Administrator – Commission above and Commission claim by executors below. ”
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    • “ Section 65 of the Administration and Probate Act 1958 allows an executor, administrator or trustee to apply for commission for their ‘pain and trouble’ of administering the estate. The amount must be ‘just and reasonable’ and ‘not exceeding Five per centum’. In fact, 5% is rarely granted. An ... ”
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    • “ Part 4 of the Wills Act 1997 deals with the construction of wills and particular provisions in wills, and Divisions 6 and 7 in Part 2 deal with wills made under foreign law and international wills. The Supreme Court may be requested to rule on the construction of a will and, when doing so, may ... ”
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    • “ Ability of executor to intermeddle In some circumstances it may be advantageous for the estate if a contract is entered into before the formal grant of representation is obtained, generally expressed to be subject to the obtaining of a grant. An executor may elect to do so, which would constitute ... ”
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    • “ The Supreme Court has jurisdiction, both by virtue of the legislation and as part of its inherent jurisdiction, over wills and estates. For small estates, s 71 of the Administration and Probate Act 1958 provides that an executor or administrator may apply for assistance from a court officer at the ... ”
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    • “ See below under Family provision. ”
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    • “ Causes of action survive death The general rule is that death does not affect the legal rights and obligations of the deceased. Section 29 of the Administration and Probate Act 1958 provides that, subject to the various provisions in the section, on the death of any person all causes of action ... ”
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    • “ If one executor dies before a grant is made then, unless the will says otherwise, the surviving executors can and should proceed. An executor, once appointed as legal personal representative, will undertake executorial duties in the first instance and then, if the will creates a trust, will be a ... ”
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    • “ Where the testator has made no provision in the will for an alternate or substitute executor and the executor named in the will dies, then the deceased executor’s legal personal representative becomes the executor of the testator’s will: s 17 Administration and Probate Act 1958. ”
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    • “ An executor may delegate administrative functions relating to the administration of an estate but cannot delegate executorial duties, other than in respect to limited application in the recognition of foreign grants under Part III of the Administration and Probate Act 1958. The executor may appoint ... ”
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    • “ Early distribution An estate can be distributed earlier than six months, but the executor or administrator will lose the protections included in the Act and risk being held personally liable for any claims against the estate. Practically, where there is no realistic chance of a claim, an executor ... ”
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    • “ Application for probate An executor named in a will is entitled as of right to a grant of probate. ”
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    • “ The term ‘ademption’ refers to the situation where a specific gift to a named beneficiary in a will is defeated – adeemed – because the property which is the subject of the gift no longer exists. This might apply where a testator makes a specific gift of a property to a beneficiary, but then after ... ”
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    • “ There are three main types of grant of representation: grant of probate – will; ”
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    • “ A hotchpot or adjustment clause is used to take account of inter vivos gifts or loans, usually, to the deceased’s children, so that when combined with the gifts to those children under the will, they all end up with the same benefit. In Re Tennant Mortlock v Hawker [1942] HCA 3 Dixon J said: ”
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    • “ The court can grant administration of an informal will. Section 9 of the Wills Act 1997 provides that the court may dispense with the usual requirements for the making of a will, altering a will, or revoking a will, if the court is satisfied that the document purports to state the testamentary ... ”
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    • “ A dissatisfied beneficiary or claimant upon an estate may seek an injunction from the Supreme Court to restrain the legal personal representative from dealing with estate property and particularly from selling real property. A caveat may be filed in respect to distribution under a grant made on ... ”
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    • “ Section 39 of the Administration and Probate Act 1958 provides for administration and the payment of debts if the estate is insufficient to pay its debts and liabilities in full, and is not being administered under the Bankruptcy Act 1966 (Cth). See Morris v Smoel [2014] VSC 31 for an application ... ”
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    • “ Intermeddling means a named executor dealing with the estate’s assets before a formal grant is made. There is nothing inherently wrong with this. It is not provided for in legislation – it is a common law concept, long recognised. See also Contracts entered into or completed before probate or ... ”
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    • “ An intestate includes a person who leaves a will but dies intestate as to some beneficial interest in that person’s real or personal estate: s 3 Administration and Probate Act 1958. Disclaiming rights on intestacy ”
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    • “ Although upon the death of a joint proprietor the proprietary interest is lost to the surviving joint tenants, together with the obligation to contribute to the mortgage, the estate may remain liable under any personal covenants of a mortgage. ”
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    • “ See also Joint ownership of assets under Assets of the estate above. Two or more co-owners of land may own as either joint tenants or as tenants in common. ”
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    • “ Administration and Probate Act 1958 Supreme Court (Administration and Probate) Rules 2014 ”
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    • “ See Applications for a grant of probate or letters of administration above See also Administrator, Distribution and Grants above. ”
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    • “ See Gifts and bequests – Ademption above and Life tenancy below. ”
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    • “ A life estate is a proprietary interest in real property, capable of being registered on title. Such a right entitles the proprietor to lease the estate to a tenant and retain any rent. A ‘right of occupancy’ or similar is a conditional personal right, not capable of being registered and requires ... ”
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    • “ A life tenancy, or life estate, is a proprietary interest in real property, capable of being registered on title. In the context of a trust creating a life tenancy, the party who holds the property is known as the trustee and the beneficiary is known as the life tenant. In addition to these two ... ”
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    • “ One of the duties of an executor or administrator of an estate is to manage and, if possible, compromise any claims against the estate. That can be an onerous duty, involving a difficult balancing exercise between the merits and likelihood of success of the claim on the one hand and the necessity ... ”
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    • “ It is possible – and not entirely uncommon – to obtain a grant for administration based only upon a copy of a missing will: see In the Will of Valerie Eve Robson (deceased) [2020] QSC 52 and Williamson v Pay [2020] QSC 66. There are no specific guidance notes on the Supreme Court’s website, but ... ”
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    • “ For a case where an executor unsuccessfully disputed that they be passed over in favour of a court appointed administrator, see Re Coffey; O’Halloran v Coffey [2020] VSC 649. See also Re Abat [2020] VSC 560 in Intermeddling above. ”
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    • “ Once an executor or administrator has a grant, assuming one is required, then they may distribute in accordance with the provisions of the will or in accordance with the intestacy provisions in the Administration and Probate Act 1958. This is of course subject to any claims brought against the ... ”
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    • “ See Assets of the estate above. ”
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    • “ Section 31 of the Wills Act 1997 provides the court may make an order to rectify a will if the court is satisfied that the will does not carry out the testator’s intentions either due to a clerical error, or because the will does not give effect to the testator’s instructions. Applications for an ... ”
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    • “ There is no compulsion upon someone to accept the role as executor. The named executor, or one of multiple named executors, may renounce their office before any application for a grant is made. If, however, the executor has intermeddled with the estate then they may lose their right to renounce. ... ”
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    • “ An application may be made for the removal or discharge of an executor or administrator, and substituted appointment of a trustee company or other person as administrator: s 34 Administration and Probate Act 1958. This section can also be used by one executor to seek the removal of a co-executor. ”
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    • “ An executor cannot resign once probate has been granted but may apply to the court for discharge or removal: s 34 Administration and Probate Act 1958. See Replacement or removal of executor above. If the executor has intermeddled with the estate, removal may not be permitted, although there are ... ”
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    • “ See Application to revoke a grant of probate or letters of administration above. ”
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    • “ Application for a grant in a small estate may be made in the usual way. Alternatively, s 71 of the Administration and Probate Act 1958 provides that an executor or administrator may apply for assistance from a court officer at the Probate Office, or a registrar of the Magistrates’ Court if the ... ”
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    • “ The starting point for making wills is the idea of freedom of testamentary intention, that is, the idea that a person should be able to leave their estate to whomever they choose, and to exclude as a beneficiary whomever they choose. In Banks v Goodfellow (1870) LR 5 QB 549, at 564, Cockburn CJ ... ”
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    • “ Pursuant to Part IV of the Administration and Probate Act 1958 an order can only be made if the court is satisfied that the applicant is an ‘eligible person’ as defined, the deceased had a moral duty to provide for that person’s proper maintenance and support, and that the distribution of the ... ”
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    • “ Claims by adult children against an estate are perhaps the most common type of claim under Part IV. Where there is a surviving spouse of the testator, see Spouse below, any claim by adult children will face a greater hurdle, especially where the size of the estate is insufficient to provide ... ”
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    • “ Evidence in family provision cases is by affidavit. Care should be taken to ensure that information included complies with the Practice Note SC CL 7 – Testators Family Maintenance List (First Revision). In Estate of Joan Esme Little and the Succession Act 2006 [2015] NSWSC 1913 the court emphasised ... ”
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    • “ Time for making an application for family provision runs from the date of the grant, so the first step is to ascertain if a grant has been made. This is of course searchable: see Searching Records Held at the Probate Office on the Supreme Court website. If a grant is not obtained within six weeks ... ”
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    • “ Documents to commence claim Notice of an application under s 91 of the Administration and Probate Act 1958 must be served on the legal personal representative of the estate, or on such other persons as the court decides: s 93. ”
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    • “ Often an executor will seek to compromise a claim in the interests of avoiding court proceedings, and possibly preserving relationships within the family. However, there are a number of ‘relevant issues’ the executor needs to consider, which were discussed by the court in Re Finnie; Petrovska v ... ”
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    • “ There is no longer a general rule that an unsuccessful applicant will have their costs paid from the estate. Rather, it is assumed that the usual costs orders for an unsuccessful party in civil litigation will apply, with the likely result that an unsuccessful applicant will not receive their costs ... ”
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    • “ In Thompson v Thompson [2015] VSC 706, the effect of a Crisp order was described as: … an order of the kind made by Holland J in Crisp v Burns Philp Trustee Company Ltd (NSWSC, 18 December 1979, unreported). Generally speaking such an order gives a plaintiff an interest for life in real property or ... ”
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    • “ See also Adult stepchild above. As noted above, a number of ‘eligible person’ categories must prove dependency upon the deceased. ”
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    • “ These are specific terms, as referred to in the definition of ‘eligible person’ in s 90 of the Administration and Probate Act 1958, and are included in s 3(1): domestic partner of a person who dies means a registered domestic partner or an unregistered domestic partner of that person. ”
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    • “ See s 90 of the Administration and Probate Act. ”
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    • “ See also Adult children and Adequate provision above, particularly Freeman v Payne & Anor [2017] VCC 1941 and Brimelow v Alampi [2016] VSC 135. Towson v Francis [2017] NSWSC 1034 dealt with estrangement between an adult child and a deceased parent. His Honour Hallen J in that case referred to his ... ”
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    • “ Section 99(1) of the Administration and Probate Act 1958 provides that an application to the court for a family provision order must be made within six months after the date of the grant of probate of the will or of letters of administration. Section 99(2) provides that the court may extend the ... ”
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    • “ Regarding the interplay between family provision claims and previous family law property orders, see for example Dark v Dark [2016] NSWSC 1223. This case dealt with a claim by a widow who was separated from the deceased at the time of his death, where a financial agreement made under s 90C of the ... ”
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    • “ Although a grandchild is included in the definition of ‘eligible person’ in the Administration and Probate Act 1958 Act, one of the requirements in that category is consideration of the degree to which they were wholly or partly dependent on the deceased at the time of the deceased’s death. In ... ”
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    • “ Part IV of the Administration and Probate Act 1958 Act deals with family provision claims in respect to a will and intestacy: s 91(2)(d). Hallen J dealt with such an estate in Curnow v Curnow [2014] NSWSC 896. ”
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    • “ Administration and Probate Act 1958 Supreme Court (Administration and Probate) Rules 2014 ”
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    • “ See also Adequate provision above. In Re Dodson; Dodson v Dodson [2019] VSC 833 McMillan J referred to the relevant provisions of the Administration and Probate Act 1958 and provided a detailed exposition of the matters which the court must, and may, consider in family provision claims: ”
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    • “ Dunn v Perpetual Trustee Company Ltd [2020] VSC 611 includes an analysis of the meaning of ‘member of the same household’ and ‘dependency’ in the context of sections 90(k) and 91(4)(d) of the Administration and Probate Act 1958. ”
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    • “ Notional estate is a term used in other jurisdictions which although not part of the estate of a deceased person, or which has been distributed, may still be designated as ‘notional estate’ for the purposes of making a family provision order. Although not referred to in the Administration and ... ”
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    • “ Court to be satisfied before making family provision orders The court may only make orders for provision out of an estate if the court is satisfied that the claimant is an eligible person for whom inadequate provision has been made in the will, or on intestacy, and there are factors warranting the ... ”
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    • “ The Act does not specifically provide for a person to grant a release of their family provision rights or seek approval of the court in doing so. However, by way of analogy with other jurisdictions, this may fall within the inherent jurisdiction of the court. Such releases are often included in ... ”
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    • “ See also Domestic partner, registered and unregistered, and Registered caring partner above. The Administration and Probate Act 1958 includes a number of relevant definitions: ”
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    • “ Section 97(5) of the Administration and Probate Act 1958 provides that the court may at any time, on the application of the executor or administrator or any person beneficially entitled to or interested in any part of the estate, rescind or alter any family provision order, with notice of the ... ”
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    • “ General non-enduring power of attorney A general non-enduring power of attorney allows the attorney to deal with financial and legal matters and ceases to have effect if the principal loses capacity. ”
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    • “ The attorney is any person or persons to whom the power is given. There can be more than one and they can act jointly or severally, depending which is specified in the document. A power of attorney is a potent document – it potentially allows an attorney to buy and sell property on the principal’s ... ”
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    • “ The principal must have capacity to validly grant a power of attorney. Although the appointer’s treating doctors and perhaps even expert medical practitioners can, and often should, be consulted, the question of capacity is not strictly a medical question. The lawyer witnessing and certifying the ... ”
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    • “ The Powers of Attorney Act 2014 applies to natural persons, not corporations. A corporation may expressly or impliedly authorise an agent to enter into a contract on its behalf and the corporation has all the powers of a legal person, such as the power to grant a power of attorney recognised by ... ”
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    • “ Of principal The death of the principal immediately revokes the Power of Attorney and it cannot be used: see s 51. This is not well understood and it is surprising how often clients who are also the nominated executor of a will, for example, for their parent, think they can use a power of attorney ... ”
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    • “ Section 7(2) provides: A general non-enduring power of attorney that is in or to the effect of the form in the Schedule does not have the effect— ”
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    • “ There is prescribed wording which must be included in a Power of Attorney document, as set out in the prescribed form in Schedule 1 of the Powers of Attorney Regulations 2015. However, there is no prescribed wording for, nor restriction upon, the directions that may be given in the document, for ... ”
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    • “ Although most company constitutions permit the appointment of an alternate director, it is very unusual that they would permit the appointment of an attorney by a director to perform the director’s duties. A general power of attorney by a director, that is an appointment under the Act, does not ... ”
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    • “ Extensive duties of attorneys are set out in the enduring power of attorney section of the Powers of Attorney Act 2014: see s 63 to s 70. There are certain principles that attorneys must abide by when acting as attorney while the principal does not have decision making capacity for one or more ... ”
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    • “ This is distinct from a general power of attorney. An enduring power of attorney must be in the prescribed form: s 32; and see s 53 of the Interpretation of Legislation Act 1984 for the effect of a form in or to the like effect of the prescribed form. It is a prescribed power of attorney in, or to ... ”
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    • “ For an enduring power of attorney the principal’s signature must be witnessed by two persons, one of whom must be authorised to witness affidavits: see s 19 Oaths and Affirmations Act 2018, or a medical practitioner. See s 11 for execution of a non-enduring power of attorney. ”
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    • “ The executor or administrator of an estate cannot delegate the functions of their office and therefore cannot appoint an attorney. However, where the sole executor, or the person entitled to a grant of administration, is resident outside of Victoria, administration may be granted to an attorney. ... ”
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    • “ A general power of attorney that is in, or to the effect of, the form in the Schedule to the Act creates a general non-enduring power of attorney for the purpose of the Act: s 7. A general power of attorney is the simplest type of power, but it ceases to be enforceable if the donor loses mental ... ”
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    • “ Essentially this term relates to the situation where a person cannot communicate in relation to their property or their affairs. It may also be because the person cannot be contacted or located; however in Cox v Goldcrest Developments (NSW) Pty Ltd [2000] NSWSC 763 the court held that being on the ... ”
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    • “ Of principal As a general rule, the appointment of an attorney by an insolvent principal will be ineffective, as the insolvent person has lost the legal ability to control their affairs. Equally, a power of attorney given by a principal who subsequently becomes insolvent will cease to be effective. ... ”
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    • “ Section 138 of the Act provides that an enduring power of attorney made in another state or territory is recognised in Victoria. Of course, the interstate power of attorney must be valid under the laws of the state or territory in which it was made, but it cannot operate to confer power on an ... ”
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    • “ There is no provision in the prescribed forms to make an appointment irrevocable and it is not possible to do so by simply completing and executing the form. The exception being powers of attorney for security: s 17. The critical factor for an irrevocable power of attorney is that it can only be ... ”
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    • “ With a general non-enduring power of attorney, multiple attorneys can be appointed, acting jointly or jointly and severally. Section 8 of the Act provides that they act jointly if unspecified. Certain differences apply in respect to an enduring power of attorney: see s 30. ”
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    • “ The Victorian Civil and Administrative Tribunal (VCAT) has jurisdiction in relation to the Powers of Attorney Act 2014 and the Guardianship and Administration Act 2019, although orders may also be sought from the Supreme Court in certain instances. ”
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    • “ Powers of Attorney Act 2014 Powers of Attorney Regulations 2015 ”
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    • “ There is no prescribed wording for, nor restriction upon, the limitations that may be placed in a power of attorney document. ”
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    • “ A liquidator may appoint an attorney to act on behalf of the liquidator in the administration of the company: Australian Guarantee Corporation Ltd v Registrar of Titles (1992) VicSC 208. ”
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    • “ Certain preconditions for appointment under an enduring power of attorney are set out in s 28. The appointee must be: of or over 18; ”
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    • “ Revocation of a general non-enduring power of attorney A general non-enduring power: ”
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    • “ Until September 2015 voluntary appointments of enduring guardianship, allowing a person (appointor) to appoint another person (guardian) to make lifestyle decisions and certain medical decisions for them should they become incapable of doing so themselves, were made under the Guardianship and ... ”
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    • “ The Guardianship and Administration Act 2019 provides for various types of orders for which application may be made to the Victorian Civil and Administrative Tribunal (VCAT). These are: Guardianship order under s 22, which relates to personal matters such as where and with whom the principal lives, ... ”
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    • “ The Victorian Civil and Administrative Tribunal (VCAT) has jurisdiction in relation to the Powers of Attorney Act 2014 and the Guardianship and Administration Act 2019, although orders may also be sought from the Supreme Court in certain instances. ”
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    • “ Guardianship and Administration Act 2019 Guardianship and Administration (Fees) Regulations 2019 ”
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    • “ McKenzie friends assist an unrepresented person in court. They can sometimes be a lawyer, but usually not – and they are not intended to be a substitute for a lawyer. Even if they do happen to be a lawyer, they may not address the court; they can take notes, organise papers, whisper quietly to and ... ”
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    • “ Any person, including a child, can give an advance care directive provided the prerequisites in Part 2 of the Medical Treatment Planning and Decisions Act 2016 are met, including capacity and understanding in relation to each statement in the directive: s 13. However, only an adult may appoint a ... ”
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    • “ Forms An advance care directive constitutes the principal’s binding instructions or preferences and values in relation to the medical treatment of that person in the event that the person does not have decision-making capacity for that medical treatment: s 12. Informal advance care instructions ... ”
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    • “ The Medical Treatment Planning and Decisions Act 2016 gives statutory recognition to advance care directives and simplifies and contemporises laws relating to medical treatment decision making for people without decision making capacity. A legally binding advance care directive allows for a ... ”
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    • “ Forms An appointment of medical treatment decision maker is used to deal with matters of a medical nature, although certain procedures will require consent from VCAT. This type of power survives the principal's incapacity, and is often given by spouses to each other, or by older parents to adult ... ”
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    • “ It is assumed that an adult person has decision-making capacity: s 4(2) Medical Treatment Planning and Decisions Act 2016. ‘Decision-making capacity’ is defined in s 4(1), with further explanations and guidance in s 4(3)-(5). If in doubt, an application can be made to VCAT for an order to determine ... ”
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    • “ Appointment of medical treatment decision makers, advance care directives and support person appointments can be uploaded by the person onto the State Government’s ‘MyHealth Record’ portal. If the principal does not wish to do this, they should provide a certified copy to their appointees in case ... ”
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    • “ Forms Any person with decision-making capacity, including a child, can appoint one other person, including a child, as their support person. Only one support person can be appointed at a time: s 31. ”
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    • “ Granting someone the power to act as an attorney means that they step into the shoes of the grantor (principal) and can do on behalf of the principal anything that the principal can legally do, provided that they only act bona fide in the principal’s interests. It is common for a person to want or ... ”
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    • “ Powers of Attorney Act 2014 The Powers of Attorney Act 2014 provides for: ”
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    • “ There is currently no registration facility for general non-enduring powers of attorney and enduring powers of attorney. Medical treatment powers, advance care directives and support person appointments can be uploaded onto the State Government’s ‘My Health Record’ portal. ”
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    • “ A ‘supported decision’ means a decision about a matter that, under a supportive attorney appointment, the supportive attorney is authorised to support the principal in making: s 84 Powers of Attorney Act 2014. A principal can appoint an eligible person as a supportive attorney to support the ... ”
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    • “ A supportive attorney must be eligible for appointment. They cannot be an insolvent under administration, and where they are to be appointed for financial matters, not have been convicted or found guilty of a dishonesty offence, unless this has been disclosed and recorded in the supportive attorney ... ”
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    • “ ‘Decision making capacity’ is defined in s 4. Section 86 sets out the matters which the principal must understand in relation to making a supportive attorney appointment for the purpose of s 4(1)(a). Again, when making a supportive attorney appointment a person is presumed to have decision making ... ”
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    • “ A supportive attorney appointment is revoked on the death of the principal, and if a supportive attorney dies then the appointment is revoked so far as it gives power to that supportive attorney: s 109. ”
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    • “ Section 90 sets out the duties and obligations incumbent on a supportive attorney. There are three main powers for which a supportive attorney can be appointed, bearing in mind that the role of the supportive attorney is to support the principal to make their own decision and not substitute the ... ”
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    • “ By the principal The requirements are set out in ss 95-98. The principal must sign, or another person in their presence and at their direction, the prescribed form 5 in the presence of two witnesses: ”
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    • “ An appointment must be made by using the prescribed form: s 94. The prescribed form 5 is included in Schedule 1 to the Powers of Attorney Regulations 2015. ”
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    • “ The prescribed revocation and resignation forms are included in the Schedule to the Powers of Attorney Regulations 2015: forms 6 and 7. These can be used in respect to both supportive attorneys and alternative supportive attorneys. Section 104 specifies the prescribed form which must be signed by ... ”
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    • “ The creation and construction of wills in Victoria are covered by the provisions of the Wills Act 1997. Formal requirements are prescribed for a will to be valid, namely that it must be in writing, signed by a testator who has capacity and also signed by at least two witnesses, both of whom must ... ”
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    • “ The case of Dunn v Perpetual Trustee Company Ltd [2020] VSC 611 demonstrates the unintended consequences which may arise where a devised property has been sold by an attorney, all other real estate is the subject of specific devises, and the remaining assets are minimal. ”
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    • “ Section 5(1) of the Administration and Probate Act 1958 notes that administration means, with reference to the estate of a deceased person, letters of administration whether general special or limited or with the will annexed or otherwise. Both an executor, by a grant of probate, and an ... ”
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    • “ An administrator is defined in s 5 of the Administration and Probate Act 1958 as a person to whom administration is granted. Between the date of death and the date of a grant of letters of administration, the estate of an intestate deceased vests in State Trustees: s 19. ”
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    • “ Alterations to a will are permitted by s 15 of the Wills Act 1997. Alterations are only effective if they are executed in the same way that a will is required to be executed under s 7 of the Wills Act 1997, although the same provisions for informal wills in s 9 apply to non-conforming alterations. ... ”
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    • “ Age qualification for beneficiaries A testator may seek to postpone a beneficiary’s right to the bequest until the beneficiary attains a certain age, traditionally 21 years but theoretically any age, by providing in the will that the beneficiary’s share is to be held on trust. This is often ... ”
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    • “ An executor has a common law right to possession of the body of the deceased. An administrator does not have the same right. This is consistent with the executor’s burden of burying the deceased, which an administrator does not have. As a practical matter, the distinction probably developed because ... ”
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    • “ The requirements for testamentary capacity are laid down in Banks v Goodfellow (1870) LR 5 QB 549. A case referring to the tests in Banks v Goodfellow is Re Williams; Duryea v Drew [2019] VSC 314 at [29]. If a will is rational on its face and is proved to have been executed and attested in the ... ”
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    • “ See Beneficiaries above. ”
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    • “ Part 4 of the Wills Act 1997 deals with general rules about construction of wills and also the construction of particular provisions in wills. These all apply provided there is no contrary intention expressed in the will. In proceedings to construe a will, evidence, including evidence of the ... ”
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    • “ People are free to enter contracts to leave property by will. What makes wills ‘mutual’, rather than merely ‘reciprocal’, is the inclusion of a term in the agreement that a will shall not be revoked. See the precedent Contract to Make Mutual Wills on the Wills matter plan. The deed should be ... ”
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    • “ The Supreme Court has the power on the application of any person, to make, or to alter or revoke, a will on behalf of persons lacking testamentary capacity, including a minor: ss 20-21 Wills Act 1997. Such wills are often known as statutory wills. See Re Ballan [2019] VSC 144 (unsuccessful ... ”
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    • “ Section 9 of the Wills Act 1997 provides that the court may dispense with the usual requirements for the making of a will, altering a will, or revoking a will, if the court is satisfied that the document purports to state the testamentary intentions of the deceased and that the deceased intended ... ”
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    • “ Disposition of land A general disposition of land in a will includes leasehold land, whether or not the testator also owns freehold land, but this does not apply if a contrary intention appears, whether in the will or elsewhere: s 40 Wills Act 1997. ”
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    • “ If the testator, having made a will while married, then divorces or has the marriage annulled, any appointment of the former spouse as an executor, trustee, or a power of appointment exercisable by or in favour of the spouse, in the will is revoked. However, the appointment of the spouse as a ... ”
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    • “ See Multiple wills below. ”
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    • “ Section 7 of the Wills Act 1997 provides for how a will is to be executed, namely that it must be in writing, signed by a testator who has capacity and the intention to execute their will, or by another person at the direction and in the presence of the testator, and also signed by at least two ... ”
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    • “ Appointment of executor There is no restriction as to whom a testator may appoint as their executor. It is however important that the testator carefully considers the choice and only appoints someone that they trust and who can do the job properly. ”
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    • “ In proceedings to construe a will, evidence, including evidence of the testator’s intention, is admissible to assist in the interpretation of the language used in the will if the language makes the will, or any part of it, meaningless or ambiguous on the face of the will: s 36 Wills Act 1997. This ... ”
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    • “ See International wills below. ”
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    • “ The Supreme Court of NSW considered a homemade will in Jones v Robinson & Ors [2019] NSWSC 932 and particularly the question of its appropriate interpretation where ambiguity existed. The Court particularly affirmed the ‘well accepted’ principles from Justice Isaacs in Fell v Fell [1922] HCA 55 on ... ”
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    • “ A will is revoked by marriage: s 13(1) Wills Act 1997, unless it is made in contemplation of marriage: s 13(3). There are also ‘savings’ in s 13(2) in relation to dispositions to, or appointments of, the person to whom the testator is married at the time of death. The question then arises, and ... ”
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    • “ Section 9 of the Wills Act 1997 provides that the court may dispense with the usual requirements for the making of a will, altering a will, or revoking a will, if the court is satisfied that the document purports to state the testamentary intentions of the deceased, and that the deceased intended ... ”
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    • “ Howe v Fischer [2014] NSWCA 286 was a successful appeal from Fischer v Howe [2013] NSWSC 462, in which a solicitor was found negligent for not, inter alia, having ensured the elderly will maker executed an informal will pending finalisation of the execution of her formal will. Damages were awarded ... ”
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    • “ Part 2 Division 6 of the Wills Act 1997 concerns the recognition of wills in respect to which foreign laws apply. There are various requirements, but generally a will made in a foreign country is valid in Victoria if it is executed in accordance with the requirements of the law of that other ... ”
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    • “ Wills Act 1997 Administration and Probate Act 1958 ”
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    • “ A ‘living will’ is not a term recognised by Australian law. In Victoria, the equivalent documents are an appointment of medical treatment decision maker, and any advance care directive, which allows a person to appoint someone else to make medical decisions for them if they become incapable, and ... ”
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    • “ A will is not valid unless it is in writing and duly witnessed. See Witnesses below and s 7 of the Wills Act 1997. However, these provisions are overridden if a will is made pursuant to s 21, which provides that a will can be made for a person without testamentary capacity at the direction of the ... ”
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    • “ A will is revoked by marriage: s 13(1) Wills Act 1997, unless it is made in contemplation of marriage: s 13(3). There are also ‘savings’ in s 13(2) in relation to dispositions to or appointments of the person to whom the testator is married at the time of death. See In contemplation of marriage ... ”
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    • “ Pursuant to s 5 of the Wills Act 1997 a will made by a minor, a person under 18 years of age, is not valid. However, there are several exceptions to this rule, namely: A minor may make a will in contemplation of marriage, and may alter or revoke it, but the will is of no effect if the marriage ... ”
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    • “ Theoretically, it is permissible to have more than one will. This may be the case where the testator has assets in two or more different jurisdictions, typically Australia and another country. In fact, if the assets are substantial, or consist of real property, then consideration will need to be ... ”
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    • “ What makes wills ‘mutual’, rather than merely ‘reciprocal’, is the inclusion of a term in the agreement that a will may not be revoked. In Birmingham v Renfrew [1937] HCA 52 a husband and wife made such an agreement in circumstances where she had inherited money from an uncle and wanted it to go to ... ”
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    • “ Badenach v Calvert [2016] HCA 18: In the circumstances of this case the High Court held that the solicitor did not owe a duty of care to the beneficiary in the will. ”
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    • “ A testator may be bound to honour a promise to make someone a beneficiary in their will, or to leave certain property to a certain beneficiary, if the promisee has relied on that promise. See Delaforce v Simpson-Cook [2010] NSWCA 84 and Contracts to make or not to change wills or mutual wills above. ”
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    • “ Any property personally owned by the testator in Victoria can be disposed of in a will made in Victoria. That extends to property to which the testator’s legal personal representative – executor or administrator – becomes entitled in the capacity of legal personal representative, after the date of ... ”
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    • “ Section 31 of the Wills Act 1997 provides the court may make an order to rectify a will if the court is satisfied that the will does not carry out the testator’s intentions either due to a clerical error, or because the will does not give effect to the testator’s instructions. Applications for an ... ”
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    • “ Sections 12-14 of the Wills Act 1997 deal with revocation of a will. A will is revoked by: ”
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    • “ See Homemade wills above. ”
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    • “ See also Capacity and Negligence – Solicitor’s duty of care to intended and disappointed beneficiaries above, and Witnesses below. Appointment of particular firm clause ”
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    • “ See Court made wills above. ”
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    • “ Are superannuation proceeds dealt with under a will Superannuation is not the personal property of the testator, it is held on their behalf by the trustees of their superannuation fund and cannot be disposed of in a will, unless the trustees of the superannuation fund have previously been directed, ... ”
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    • “ Most wills are drafted to require that a beneficiary must survive the testator by 30 days. There are several reasons for this. The main one is that s 39 of the Wills Act 1997 states that beneficiaries to whom a disposition of property is made in a will must survive the testator by 30 days, ... ”
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    • “ See Capacity above. ”
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    • “ The term ‘testator’ is not defined in either the Wills Act 1997 or the Administration and Probate Act 1958. Both Acts do, however, use the term consistently to describe the person making a will and it is the usual and preferred term in the literature and the cases on wills and probate. ”
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    • “ Although Part IV of the Administration and Probate Act 1958 now refers to ‘Family provision’, the Supreme Court of Victoria still places such cases in the Testators Family Maintenance List. It refers to the obligation the modern law places on testators to provide for their family out of their ... ”
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    • “ Section 50 of the Wills Act 1997 lists the people who are entitled to see the will, including a revoked will or a purported will, after the testator has died. These are: (a)any person named or referred to in the will, whether as beneficiary or not; ”
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    • “ All witnesses and testator present together – evidence of signing In practical terms it is best practice to ensure that all three, or more, signatures occur at the same time and while all parties are together. Frequently it is suggested that the witnesses and the testator should all use the same ... ”
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