Succession Flashcards
Re Curtin 2015
presumption of revocation was not rebutted
Rowe v Law 1978
where there was no ambiguity, mistake or contradiction, extrinsic evidence was not admissible
FM v TAM 1972
5 factors for breach of moral duty
1. amount left to spouse or value of LRS
2. number of children and their age and position in life
3. means of the testator
4. age and financial position of applicant
5. has testator already made proper provision
Re ABC, deceased 2003
moral duty
s.78 SA 1965
A will must be in writing and signed by testator in the presence of 2 or more witnesses
s.85 SA 1965
will can be revoked by:
- a subsequent marriage
- a later will
- writing with the intention to revoke
- destruction of the will
s.90 SA 1965
allows extrinsic evidence to clarify ambiguity in will
s.98 SA 1965
where a child of testator dies in the lifetime of the testator, the gift will pass into the deceased child’s estate
s.111SA 1965
Legal Right Share
- spouse and civil partner are entitled to a legal right share
- gets 1/2 w/o kids
- gets 1/3 w/ kids
s.115 SA 1965
Right to Elect
- either share under the will or legal right share
- default election: take under the will & lose LRS
Re Urquhart 1974
- no gift: takes LRS
- a gift in addition to LRS: LRS vests on death
- a gift but not in addition to LRS: elect between the two
- no election: takes under the will
s.117 SA 1965
Order of Further Provision for Child
- where found that the testator failed moral duty to make proper provision for the child.
Re IAC 1990
has there been a positive failure in moral duty
s.63 SA 1965
Hotchpot Doctrine
- any advancement given to the child is added to to what they inherit
Part VI of the SA 1965
Distribution on Intestacy
- spouse/cp
takes everything w/o kids and 2/3 w/ kids
