Diploma in Law

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Diploma in Law

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LEGAL PROFESSION

ADMISSION BOARD

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LAW EXTENSION COMMITTEE

LAW EXTENSION COMMITTEE SUBJECT GUIDE

13 SUCCESSION

SUMMER SESSION 2017-18

This Guide includes the Law Extension Committee’s course information and teaching program and the Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading “Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the NSW Admission Board Rules 2015.

Course Description and Objectives / 1
Lecturer / 1
Assessment / 1-2
March 2018 Examination / 2
Lecture Program / 2
Weekend Schools 1 and 2 / 3
Texts and Materials / 4
Compulsory Assignment / 5
Assignment Question / 5
Prescribed Topics and Course Outline / 6-10
Statutory Extracts / 11-52

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LAW EXTENSION COMMITTEE

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SUMMER 2017-18

13 SUCCESSION

COURSE DESCRIPTION AND OBJECTIVES

The law of Succession is concerned with the law of wills and the administration of deceased estates. The applicable principles vary depending upon whether the deceased dies with or without a will and in either case the distribution of the estate may be affected by a claim for family provision brought under Chapter 3 of the Succession Act.

The object of the course is to acquaint students with the relevant statutory principles and case authorities to enable them to administer deceased estates and to anticipate and avoid administration and other succession problems by the professional drafting of wills and the provision of professional advice to clients.

LECTURER

Mr J. E. F. Brown, LLB, Masters of Applied Law (Wills and Estates)

Justin is a barrister practising out of 13th Wentworth/Selborne Chambers. Prior to coming to the Bar, Justin practised at a firm specialising in Wills and Estates and completed the Masters of Applied Law (Wills and Estates) through the College of Law. Since then he has delivered numerous papers on the topic of Succession and is a guest lecturer at the College of Law. At the Bar, Justin practises in Wills, Estates, Trusts and Equity.

Justin also offers to students to come along to real cases. Many students have attended his cases and have gained valuable experiences.

ASSESSMENT

To be eligible to sit for the Legal Profession Admission Board’s (LPAB) examinations, all students must complete the Law Extension Committee (LEC) teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled with the LPAB. This gives you access to the full range of learning resources offered by the LEC.

To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow the instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the Course Information Handbook, and on the Webcampus.

Eligibility to Sit for Examinations

In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s performance in a subject in order for the student to be eligible to sit for the examination, conducted by the LPAB. Assignments are used to assess eligibility.

Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for examinations. However, a category of “deemed eligible” has been introduced to offer students whose assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the examination.

Assignments as part of the Board’s Examinations

Assignment results contribute 20% to the final mark in each subject.

The LEC administers the setting and marking of assignments. The LEC engages the LPAB’s examiners to assess or supervise the assessment of assignments.

Submission

Assignments must be received by 11:59pm on the due date unless an extension has been granted. Extensions must be requested by email prior to the due date. Specific supporting evidence must be provided. Assignments that are more than ten days late will not be accepted. Late assignments attract a penalty of one mark out of 20, or 5% of the total marks available, per day.

Assessment

Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in the Guide to the Presentation and Submission of Assignments. Prior to the examination, assignments will be returned to students and results posted on students’ individual results pages of the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their eligibility to sit for the examination.

Review

Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in that subject will be included in the Revising Examiner’s review. The final examination mark is determined in accordance with this review. Assignment marks will not otherwise be reviewed.

MARCH 2018 EXAMINATION

Candidates will be expected to achieve a thorough knowledge and understanding of the basic legal principles of the law of Succession, and to demonstrate an ability to apply these principles to fact situations, referring to relevant cases and statutory provisions as appropriate.

Candidates will be expected to have a detailed knowledge of the prescribed topics:

Intestate succession; Definition and nature of a will; The mental and formal requirements for will making; The rectification of wills; The revocation, alteration, republication and revival of wills; The jurisdiction of the probate court; Grants of representation; Estates pending grants of representation; Some powers and duties of a legal personal representative; Gifts by will; Administration of solvent estates; and family provision.

All enquiries in relation to examinations should be directed to the Legal Profession Admission Board.

The only material which will be allowed in the exam will be the Course Outline.

LECTURE PROGRAM

Lectures in Succession will be held on Wednesdays, from 6 pm to 9 pm, commencing 8 November 2017. Lectures will be held in New Law School Lecture Theatre 024 (New LSLT 024) before the study break and New Law School Seminar Room 020 (New LSSR 020) after the study break.

NOTE:

The Study Break will be from Saturday 16 December 2017- Sunday 7 January 2018.

WEEKEND SCHOOLS 1 AND 2

There are two weekend schools primarily for external students. Evening lecture students may attend the weekend schools on the understanding that it is not possible to cover the entire course at the weekend schools and that the weekend school classes are primarily for the assistance of external students.

These programs are a general guide and may be varied according to need.

First Weekend School

Saturday 25 November 2017 (8am-noon) (in Abercrombie Case Study Lecture Theatre 2090)

Sunday 26 November 2017 (noon-4pm) (in Abercrombie Case Study Lecture Theatre 2140)

Topics to be covered:

1.  Terminology and general framework

2.  Intestate succession

3.  Testate succession

a.  The mental element

b.  Formal requirements

c.  The rectification power

d.  Revocation of wills

e.  Obliterations, interlineations and alterations

f.  Republication and revival of wills

Second Weekend School

Saturday 3 February 2018 (8am-noon) (in New Law School Lecture Theatre 028)

Sunday 4 February 2018 (noon-4pm) (in New Law School Lecture Theatre 028)

Topics to be covered:

1.  Family provision

2.  Administration of estates

a.  Types of gifts by will

b.  The statutory order of application of assets

c.  Locke King’s Act

d.  Protected assets

TEXTS AND MATERIALS

Course Materials

·  Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)

Prescribed Materials

·  Text: Certoma, The Law of Succession in New South Wales, 4th ed. Thomson Reuters, 2010. The material covered in ch 1, 2, and paras 11.210-11.230, 11.270-11.380, 11.430-11.610 and 11.750-11.830 of ch 11 is not examinable.

·  Casebook: Certoma, Succession: Commentary and Materials, 6th ed. Thomson Reuters, 2011. The material which appears under the heading "Insolvent Estates" in ch 16 is not examinable.

Prescribed Statutes

·  Probate and Administration Act 1898 (NSW)

·  Succession Act 2006 (NSW)

Reference Materials

·  Certoma, Wills in Practice: NSW Handbook, CCH Australia (Loose leaf service)

·  Handler, Succession Law and Practice NSW, LexisNexis (Loose leaf service)

·  Rowland, Hutley’s Australian Wills Precedents, LexisNexis, 9th ed, 2016

LEC Webcampus

Once you have registered online with the LEC, you will have full access to the facilities on the Webcampus including links to relevant cases and legislation in the Course Materials section.

compulsory ASSIGNMENT

In Succession, there is only ONE ASSIGNMENT. This assignment is compulsory and must be submitted by all students. Students must submit the assignment by the due date. A pass mark is 50%. The assignment question will be posted on the LEC Webcampus in the second week of classes. Refer to the Guide to the Presentation and Submission of Assignments for the assignment grading and assessment criteria.

The maximum word limit for the assignment is NO MORE THAN 1500 words (inclusive of all footnotes but not bibliography). YOU MUST STATE the exact word count on page one of your assignment. WORDS IN EXCESS OF 1500 MAY NOT BE READ BY THE LECTURER.

The rules regarding the presentation of assignments and instructions on how to submit an assignment are set out in the LEC Guide to the Presentation and Submission of Assignments which can be accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting an assignment.

The completed assignment should be lodged through the LEC Webcampus, arriving by 11:59pm on the following date:

Compulsory Assignment / Monday 15 January 2018 / (Week 8)

ASSIGNMENT QUESTION

To obtain the Succession Assignment for the Summer Session 2017-18, please follow the instructions below:

1.  Register online with the LEC (see page 24 of the Course Information Handbook for detailed instructions). Once you have registered, you will have access to all the facilities on the LEC Webcampus.

2.  Then go into the Webcampus, select the Course Materials section and click on the link to the assignment questions or problems for this subject.

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PRESCRIBED TOPICS AND COURSE OUTLINE

This outline represents the basic structure of the course. You should regard the outline not as confining or delimiting your study of this subject, but rather as an outline of the main principles which make up the law of Succession. In preparation for your study of this subject, you should revise your study of Equity, especially in relation to the topics of testamentary contracts, mutual wills, secret trusts, powers and duties of trustees and trust powers.

Note: Paragraph numbers next to the cases listed refer to the Casebook.

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1. Intestate succession

Casebook, ch 1

Text, ch 3

Adoption Act, ss 95-97

Interpretation Act, s 21C

Status of Children Act, ss 5-8

Succession Act, ch 4

Thornton v Brunsden (1956) 56 SR (NSW) 265 (para. 1.35)

Re Plaister (1934) 34 SR (NSW) 547 (para. 1.45)

Halbert v Mynar [1981] NSWLR 659 (para. 1.55)

2. Definition and nature of a will

Casebook, ch 2

Text, ch 4, paras. 4.10-4.110, 4.160-4.370

Succession Act, s 6

3. The mental element

Casebook, ch 3

Text, ch 5

(1) Testamentary Capacity

(a) Age

Succession Act, ss 5, 16, 17 (cf former Wills Probate and Administration Act, ss 6, 6A, 6B)

(b) Sound mind, memory and understanding

Succession Act, ss 18-26

Banks v Goodfellow (1870) LR 5 QB 549 (para. 3.15)

Tobin v Ezekiel [2012] NSWCA 285

Timbury v Coffee (1941) 66 CLR 277 (para. 3.25)

Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

Bull v Fulton (1942) 66 CLR 295 (para. 3.20)

In the Estate of Bohrman [1938] 1 All ER 271 (para. 3.35)

Woodhead v Perpetual Trustee Co (1987) 11 NSWLR 267 (para. 3.30)

Re Fenwick & Re Charles [2009] NSWSC 530 (para. 3.55)

(2) Knowledge and approval

Astridge v Pepper [1970] 1 NSWLR 542 (para. 3.40)

(3) Fraud and undue influence

Fulton v Andrew (1875) LR 7 HL 448 (para. 3.65)

Wingrove v Wingrove (1886) 11 P and D 81 (para. 3.90)

Hall v Hall (1868) 1 P and D 481 (para. 3.85)

Hindson v Weatherill (1854) 43 ER 886 (para. 3.75)

Wintle v Nye [1959] 1 All ER 552 (para. 3.80)

(4) Lack of testamentary intention

In the Estate of Knibbs [1962] 2 All ER 829 (para. 3.95)

King's Proctor v Daines (1830) 162 ER 1136 (para. 3.100)

Nichols v Nichols (1814) 161 ER 1113 (para. 3.105)

In the Estate of Meyer [1908] P 353 (para. 3.110)

4. Formal requirements

Casebook, ch 4

Text, ch 6

(1) Form and manner of execution of wills

Succession Act, ss 6, 7, 9 (cf former Wills Probate and Administration Act, ss 7, 12)

In the Goods of Adams (1872) 2 P and D 367 (para. 4.25)

Re Male [1934] VLR 318 (para. 4.30)

Sweetland v Sweetland (1865) 164 ER 1416 (para. 4.35)

Willgoss v Ward (1921) 22 SR (NSW) 61 (para. 4.55)

(2) Gifts to interested witnesses

Succession Act, s 10 (cf former Wills, Probate and Administration Act, s 13)

Re Bunting [1974] 2 NZLR 219 (para. 4.60)

(3) The judicial dispensing power

Succession Act, s 8 (cf former Wills Probate and Administration Act, s 18A)

Re Application of Brown: Estate of Springfield (1991) 23 NSWLR 535 (para. 4.75)

In the Estate of Masters (1994) 33 NSWLR 446 (para. 4.80)

(4) Incorporation by reference

Allen v Maddock (1858) 14 ER 757 (para. 4.70)

5. The rectification power

Casebook, ch 3, paras. 3.115-3.135

Text, ch 5, paras. 5.80-5.100; ch 10, paras. 10.10, 10.140-10.180

Succession Act, ss 27-28 (cf former Wills Probate and Administration Act, s 29A), 32

Mortenson v State of New South Wales (NSWCA, unrep, 12.12.1991) (para. 3.130)

Estate of Gillespie (NSWSC, unrep, 25.10.91) (para. 3.135)

6. Revocation

Casebook, ch 5

Text, ch 7

(1) Involuntary revocation

(a) Marriage

Succession Act, s 12 (cf former Wills Probate and Administration Act, s 15)

In the Goods of Russell (1890) 15 PD 111 (para. 5.35)

Layer v Burns Philp Trustee Co (1986) 6 NSWLR 60 (para. 5.60)

Re Natush [1963] NZLR 173 (para. 5.70)

(b) Termination of marriage

Succession Act, s 13 (cf former Wills Probate and Administration Act, s 15A)