Trusts/Wills: EXTRA Flashcards
Do witnesses of a will have to sign in each others presence
no, just the testators
When is the court is likely to find that revocation was conditional on the substitute wording taking effect?
Where the testatrix adds substitute wording
If a testator uses ‘my’ to describe an object of a gift in a will, what can the court do?
court could interpret this as meaning the gift is of the prop which the testator owned at the date of the will
When can reconstruction of a destroyed will be effective?
if it was destroyed by mistake/accident
Elements of common intention constructive trust
- Common intention
a. Express
b. Inferred (Direct contrib to purchase OR significant contribution to mortgage payments
OR Indirect payments of household expenses enabling mortgage to be paid) - Detrimental reliance
a. Express
b. Inferred: conduct will show detriment
For a common intention constructive trust: what counts as detrimental reliance?
EXPRESS: paying mortgage, improvements, domestic if substantial
IMPLIED: conduct will show (if FINANCIAL only)
Difference in courts approach to quantifying beneficial interest under resulting, common intention constructive and proprietary estoppel?
- RESULTING: proportionate to financial contribution
- CICT: what was intended OR if cant be ascertained, what would be fair having regard to the whole course of dealing
- PE: reasonable in all the circumstances, considering assurances made, nature of detriment sustained from reliance on those assurances.
Issue to consider when investing trust fund in bonds?
Many bonds viewed primarily as income- producing investments, with little capital growth so may favour life tenant if JUST invest in bonds
What is accessory liability?
A breach of trust, which the defendant assisted, the defendant acting dishonestly (the test for dishonesty being objective).
What is included in the ‘probate value’ of the estate
Only property vested in the PRs LESS debts/funeral expenses
Meaning of ‘adeems’
Asset no longer available
Meaning of ‘lapse’
Beneficiary no longer avaliable
When does the will ‘speak from’?
General rule: Date of death
If use “My” and asset is capable of being added to/subtracted from=speaks from death
If use “My” and asset is a singular asset=speaks from date of execution of will
what does s33 WA provide?
Unless a contrary intention is shown, where a will contains a gift to the testator’s child and that beneficiary dies before the testator, leaving issue of their own who survive the testator, the gift does not lapse but passes instead to the beneficiary’s issue
Effect of a codicil
Republishes the will at the date of the codicil
What statutory powers do PRs have in relation to appropriating assets
Can appropriate any assets in estate in/towards satisfaction of any legacy or interest in residue provided it doesn’t prejudice any beneficiary of a specific legacy
Must get consent of legatee to who assets are appropriated
What are the rules regarding PRs and self dealing?
Fiduciary duty
Avoid conflict between duties as PR and personal self interest
Eg. CANT buy property from the estate
