Recent Wills and Estates Cases

Case 1: Removing an Executor

The problem

A group of beneficiaries approached us when the executors of a Will had withdrawn substantial amount of money from the estate trust account to pay themselves executor’s commission.

The legal issue

Can an executor or an administrator of an estate take commission? No. Victorian law only enables an executor or administrator to apply for commission from all adult beneficiaries with capacity, in the hope that they agree to the payment. Alternatively, an application can be made to the Court for an award of commission.

The result

Armstrong Lawyers successfully made an application to the Supreme Court to recover the commission taken from the estate, all costs and interest, and to have the executors removed from their duties.

Case 2: Step-children challenging a Will

The problem

A couple, husband and wife, each married for the second time with adult children from the prior marriage. They made identical Wills leaving all of their assets to the other and if the other did not survive, then 50 percent to husband’s children and 50 percent to wife’s children. The wife died and her whole estate went to her husband. The husband made a new Will leaving all his estate to his children only and there was no provision for his stepchildren.

The legal issue

Did the stepfather have a responsibility under Victorian law to make provision for his stepchildren?

The result

Armstrong Lawyers acted for the step-children and issued a claim for provision from the step-father’s estate. As part of the court ordered mediation process, Armstrong Lawyers successfully resolved the matter and the step-children were given provision from the step-father’s estate. Since the matter settled at mediation, the costs of going to a full hearing before a judge were saved.

Case 3: Conditional gifts in a Will

The problem

A woman passed away in early 2009, leaving a Will that included a gift to two institutions subject to each of them promising to carry out certain tasks. One institution agreed to follow her tasks, while the other (the ‘second gift’) said that they believed that they wouldn’t be able to.

The legal issue

The executor was unsure as to what to do with the funds set aside for the second gift. Armstrong Lawyers made an application to a Judge in the Supreme Court and in that application, the Judge was asked to determine how the money set aside for the second gift was to be dealt with.

The result

Armstrong Lawyers successfully obtained a determination from the Judge that the second gift failed as the intended beneficiary could not promise to carry out the deceased’s tasks, and an order that the money set aside for the second gift shall form part of the balance of the estate and to go to the residuary beneficiaries.

Case 4: Setting aside a Will that was made shortly before death

The problem

A man died on 31 July 2006, having made a Will seven days before. He was previously admitted to hospital on 15 July 2006 with a terminal illness and appeared confused.

The legal issue

Did the man have capacity to make a Will on the day of giving instructions to prepare a Will, and at the time of signing the Will?

The result

Armstrong Lawyers lodged a caveat at the Supreme Court Probate Office on behalf of a family member to prevent a grant of probate being issued to the executor under the deceased’s last Will. We obtained statements from people who knew the deceased, and obtained reports from medical practitioners as to his legal capacity at the time of giving instructions and signing the Will. Consequently, we issued a Supreme Court proceeding to have deceased’s last Will set aside by reason of incapacity. After various affidavits were prepared by all relevant parties, at the court ordered mediation, Armstrong Lawyers successfully challenged the validity of the last Will and obtained agreement that the Will would not stand.