Deed of Disclaimer or Renunciation of Benefits on Intestacy in Australia

Key Terms used in the Grant of Probate or Letters of Administration in Australia

Administrator

➲ A person appointed by the Supreme Court to administer a deceased estate when the deceased has not left a Will, or if they have for some reason the nominated executor is unable to or does not wish to act.

Administrator cta

➲ When "cta" is appended to Administrator, an abbreviation of the Latin phrase cum testamento annexo is being added which translates to mean that the Grant of Administration / Letters of Administration is being made "with the Will annexed".  

This is an unusual situation as generally it is assumed that when an Administrator is appointed there is no Will.

For this to occur, the Will needs to be incomplete, such as is the case where:

❌ No Executor is named; or

❌ The appointed executor has since become incapacitated, or does not wish to act as executor.

When either of the above occur, an application may be made to the Probate Court to appoint someone else.

If the Probate Court approves the application, it grants what is called "Letters of Administration with the will annexed", sometimes written as "Letters of Administration cta’".

Affidavit

➲ An Affidavit is a sworn or affirmed written statement, that is made on oath by a person setting out the facts relevant to their case.

The person making the Affidavit (called a deponent) must swear or affirm that everything said in it is true before a person authorised by law to administer oaths. 

Making a false statement in an Affidavit may subject the deponent to perjury charges.

Affidavit in Support

➲ When an Affidavit is used to support an application to the Court.    

Affinity, Relationship of

➲ Related by marriage.

Annex, Annexe

➲ To attach, add or append.

Commorientes

➲ Latin term referring to when people die together at the same time, and it is uncertain as to who died first.

Consanguinity

➲ Latin term meaning all of the following: "shared blood" or a blood relationship, people who have descended from a common ancestor, the same blood line.  

Can be distinguished from a Relationship of affinity, which is being related to someone by marriage.

Deceased Estate

➲ All the property (both real estate + personal property) a person owns in their sole name when they die.  

The estate of a deceased person is what the deceased has left, whether by their Will or under the statutory rules on Intestacy (applied when there is no Will).

Deed of Family Arrangement

➲ An agreement (usually made in the form of a Deed) which sets out how property in the family is to be distributed.

Devolves, Devolution

➲ The passing of rights, property from one person to another on the occurrence of an event, for example death.

Dispensing Power

➲ The Probate Court has the power to dispense with the traditional formalities required by law to make a valid Will.  

This allows the Probate Court to exercise their discretion to Grant Probate for a document which supposedly expresses the deceased person’s testamentary intentions, but which for some reason they hadn’t signed, and/or witnessed, according to the traditional formalities required by law.

Executor de son tort

➲ Meaning a person who acted "as if" they were the legally appointed Executor/Administrator, when they were not.

The Latin term "de son tort" means "of his/her own wrong".

The person who does this is liable to account to the beneficiaries and creditors of the deceased estate for any losses caused by their actions.

Financial Statements

➲ Records of all financial transactions during the period of administering the deceased’s estate must be kept by the Executor/s.  

When the administration has been completed the Executor/s then provide each beneficiary with a copy of the financial statements.

Grant of Probate

➲ See Probate.

Originating Process

➲ Documents which are used to commence legal proceedings in a court.

Partial Intestacy

➲ When a Will does not effectively dispose of all of the deceased’s property, or the Will is ambiguously worded such that part of the estate is not capable of being dealt with effectively.

Probate

➲ A process by which the Will or a document alleged to be the Will of a deceased person is proven to be valid according to law.  

A Grant of Probate is an official document certified and issued by the Probate Court as evidence that the Court has recognised and confirmed the authority of the person/s named as Executor/s to go ahead and deal with the deceased estate according to the deceased’s Will, and distribute their assets and property, both real and personal.

Grant of Probate must normally occur before the Executor/s can obtain title to the property forming the deceased estate, that is before “calling in ” the deceased’s assets.

If there is no Will the deceased has died Intestate and in such circumstances an Administrator is appointed and instead of a Grant of Probate they are granted Letters of Administration / Administration.

Probate Court

➲ The Probate Court is a specialist division of the Supreme Court, in each state and territory.

Representation

➲ A term more commonly used to refer collectively to Grants of Probate or Administration.

Reseal of Probate

➲ If a deceased had assets in different states of Australia or in certain countries, namely Commonwealth countries where the Queen is the head of state, then it is generally possible to have a Grant of Probate issued by a Court in one jurisdiction recognised in another state or country.

This process of recognising the grant made in the other state or country is called resealing the grant.

NSW Reseal of Probate example:

Not all Grants from other countries can be resealed by the Supreme Court of NSW.

The Probate Court will only reseal Grants made in countries of the "Commonwealth Realm" where the Queen is, or was at the time of the grant, Head of State.

Such countries include the United Kingdom (England, Scotland, Wales and Northern Ireland), New Zealand, Papua New Guinea and Solomon Islands.

Recent grants from the following countries cannot be resealed: Malta, South Africa, Pakistan, India, Sri Lanka, Fiji, Hong Kong or The Republic of Ireland.

If a grant cannot be resealed then it may be necessary to apply for a new Grant of Probate in NSW.

Solemn Form

➲ Sometimes a Grant of Probate cannot be made because there is some issue or dispute about the Will.

Once the issue / dispute has been resolved by the Probate Court it may then issue a Grant of Probate in solemn form.  

‍The words "solemn form" indicate that Court proceedings have taken place and the dispute is now resolved.

Charitable Gifts fail for many reasons

For many reasons, especially given the potentially infinite life-span of a Charitable Trusts, it may well find itself with insufficient funds to achieve it's stated charitable purposes, in other words the Charitable Gift fails!

If the Charitable Trust has been set up by an experienced lawyer, the trustee of the Charitable Trust will have an express power of amendment to alter the terms such that it's objectives match it's restated charitable purposes.

What is a Charitable Trust?

A Charitable Trust can be defined as:

“A purpose trust that is directed to exclusively charitable purposes [1] and that exhibits public benefit [2]"

Charitable Trusts need not have any vesting date, and may exist in perpetuity

A trust is a Charitable Trust when it is established for charitable purposes (objects), which can be quite general (for example for the relief of poverty) or highly specific (for example the construction of a hospital to treat + conduct cancer research).

The Court may use its discretion to grant Cy Pres Orders

If this is not the case, the trustee of a Charitable Trust is under an obligation to apply to the Court for an Order to enable property to be applied Cy Pres, or be at risk of personal liability by acting in breach of trust.

In much the same way, the Executor of a Will may find themselves in a similar situation, where the estate is not sufficient to give effect to the Willmaker's charitable gift, or simply because the nominated charity no longer exists, or there is more than one charity to select from because the Will has not been specific enough when naming the charity [3].

‍Cy Pres (pronounced “Sigh Pray”) is a phrase adopted from the French meaning, “as near as possible” to the original intention.

Under the Cy Pres Doctrine the Court will take account of all the facts and circumstances, and if they can determine that the gift was made with a general charitable intent, they may exercise their discretion to make appropriate Cy Pres orders.

Footnotes:

[1] Leahy v A-G (NSW) (1959) 101 CLR 611.

[2] Attorney-General (NSW) v Perpetual Trustee Co Ltd (1940) 63 CLR 209).” (Encyclopaedic Australian Legal Dictionary, Lexis Advance).

[3] Estate of Polykarpou; Re a Charity [2016] NSWSC 409

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.