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The end of the Re Viertel exception Print E-mail

will_intro.jpgIn the following article Anthony W. Collins analyses Australian caselaw to highlight the uncertainty in estate litigation concerning the application of the Re Viertel exception.

An exception to the rule of ademption identified by Thomas J (as he then was) in Re Viertel (1997) 1Qd.R. 110, (“the Re Viertel exception”) was regarded as good law in Queensland up until 29 June 2012. On that date, Mullins J1 applied the dicta of Campbell JA in RL –v- NSW Trustee and Guardian [2012] NSWCA 39 and declined to follow Re Viertel2 . The New South Wales Court of Appeal rejected Re Viertel and held that a specific gift disposed of by an attorney acting lawfully was adeemed. Campbell JA undertook a detailed and thorough analysis of the law relating to the ademption of specific gifts. His Honour relied upon the development of the law of ademption as it arose out of the law relating to lunatic’s estates.

Campbell JA found that the Re Viertel exception was based upon “an incorrect view of the law”3 and misapprehension of Jenkins v Jones (1866) LR 2 Eq 3234. Mullins J’s application of Campbell JA’s dicta might have been the end of the discussion had Campbell JA properly considered the judgement of Hargrave J in Simpson –v- Cunning [2011] VSC 466 where His Honour recognised the Re Viertel exception as “...a further exception to the ademption principle”.

However, I am nevertheless of the view that a further exception to the ademption principle, to the effect expressed in Re Viertel, constitutes a justified extension of the common law to reflect current circumstances. People are living longer than in the past and their physical health is outlasting their mental capacity. It is commonplace for properties owned by incapacitated persons to be sold under the authority of enduring powers of attorney, to fund accommodation bonds and other necessities and comforts for an ageing population5.

Ann Lyons J had previously adopted Hargrave J’s judgement when she applied the Re Viertel exception on 19 December 2011.6 Despite the controversy as to whether the Re Viertel exception continues to exist, the issue remains as to whether an executor can attempt to satisfy a testator’s intention by tracing the residue of a specific gift, which was lawfully disposed of by an attorney during the life of an incapable testator or whether the gift is adeemed.

In her reasons Mullins J recognised at paragraph [27]: “….it will be a matter for the Parliament in Queensland to address whether there should be any statutory response to the circumstances that resulted in the decision in Re Viertel”.

The purpose of this paper is to identify those circumstances and to examine whether a legislative response is required.

The Rule of Ademption

Ademption concerns the loss of a specific gift between the making of a will and the death of the testator. Professor Paisley of the University of Aberdeen identified the fundamental features of an adeemed gift in the following terms: “Ademption is a doctrine that causes special bequests to fail. …… it depends not on the intention of the testator but on the existence of the thing bequeathed.”7

Where a testator with capacity disposes of a specific gift it is accepted that such disposal was done intentionally with full knowledge of the consequences. It is accepted that the testator has capacity to either execute a fresh will or to provide for the beneficiary in another way.

In Re Blake (deceased) (2009) 25 VR 27 Forrest J set out the process which an executor must go through to ascertain whether ademption has occurred:

To determine whether the principle of ademption has application to the gift, two questions must be answered by the court. First, what is it that has been bequeathed by the specific gift and, secondly, having identified the nature of the gift, does the subject matter of the bequest exist as at the death of the testator.8

Upon the death of a testator all property (save that which the testator held as a trustee [9] ) immediately vests with the executors named in the deceased person’s last will. Devolution of the property is effected whether the executor has or seeks a grant of probate. [10] The property which devolves is that property which the deceased held at the time of death. “A will takes effect, in relation to the property disposed of by will as if it had been executed immediately before the testator’s death”11 Some property is incapable of devolution e.g. an interest in an estate for the deceased’s life or real estate held as a joint tenant.

Where a testamentary gift has ceased to exist or had been disposed of prior to death it is said to have adeemed because it cannot devolve to the executor. Ademption may occur where the subject of the gift has substantially changed, whether such change results in the gift being adeemed is a question of fact. A change in name or form is less likely to result in ademption of the gift.

In Turner (Gordon’s executor) –v- Turner [2012] CSOH 41 Lord Tyre of the Scottish Outer House Court of Session described the history and development of the doctrine

“The doctrine of ademption has its origins in Roman law, but in one important respect Scots law has followed English law in departing from Roman law principles. In contrast to the doctrine of conversion, the intention of the testator is not regarded as relevant to ademption.”12

The authorities relied upon by Campbell JA in RL –v- NSW Trustee and Guardian, are predicated upon the notion that testamentary intent is irrelevant, because the attorney stands in the shoes of the principal. By contrast, Thomas J recognised the importance of testamentary intent in determining whether the product of the sale of a specific gift should be traced:

“It seems to me that when a testator’s asset is altered by a third party, the question whether the testator had notice or knowledge of the facts is a relevant factor on the question of ademption. This was the view of Neuberger QC in Re Dorman deceased [1994] 1 W.L.R 282 288 the reason mentioned by the learned Deputy judge being ”presumably because in the absence of such knowledge the testator would not have had an opportunity of altering his will”.13

In Mulhill –v- Kelly [2006] VSC 407, Kaye J recognised that “the rejection of inquiry into intention” had moderated and that “In recent times courts of first instance have recognised a wider exception to the rule than that expressed by Cozens-Hardy MR”(in Re Slater)” . Those view were supported by Hargraves J in Simpson –v- Cutting at paragraph [39].

It was contended for the defendant that an exception which depends on the Court’s assessment of a testator’s mental capacity and likely intent would involve the Court and the parties in wide-ranging factual enquiries on incomplete evidence. It was submitted that an identity based approach based on a strict application of the ademption principle was preferable, as it would lead to a certain result which would reduce costs to the estate and avoid the use of Court resources. I do not accept these submissions. As stated above, the exceptions for fraudulent, tortuous or unauthorised dispositions of the relevant property already require the Court to consider the likely wishes of the testator at relevant times. Further, the Court is routinely called upon to examine testamentary capacity in determining disputes about wills.

Exceptions to the rule of ademption

In Power v Power [2011] NSWSC 288 Gzell J indentified exceptions to the rule of ademption including:

  1. Where the gift has been removed by fraud or by a tortuous act unknown to the testator as recognised in Earl of Shaftsbury –v- Countess of Shaftsbury [1716] 23 ER 1089.
  2. Where an agent disposed of the gift the subject of the bequest outside of the terms of the agency and without the knowledge of the testator as in Basan –v- Brandon [1836] 59 ER 68
  3. Where the gift is still in the estate in substance although changed in name and form as in Oakes –v-Oakes [1852] 68 ER 680

The factual background to Re Viertel

In Re Viertel  the Public Trustee brought a summons under section 134 of the Public Trustee Act 1978 seeking answers to questions concerning the administration of Mrs Viertel’s estate. The question centred upon whether Mrs Viertel’s gift of her house to Mr and Mrs McCallum (‘the McCallums”) had been adeemed. In Mrs Viertel’s last will14 the Public Trustee was named as executor and trustee. In 1987 Mrs Viertel was admitted to a care facility. On 19 April 1991 Mrs Viertel appointed the McCallums her attorneys “pursuant to an enduring power of attorney”. In June 1993 Mrs Viertel suffered a stroke and lost testamentary capacity.

sold_house.jpgAfter Mrs Viertel lost capacity the McCallums acting pursuant to the power of attorney sold the house.15 They invested the proceeds in debentures in Mrs Viertel’s name. Pertinently, Thomas J found:

“Prior to selling the property Mrs McCallum wrote to the Public Trustee seeking advice as to what should be done with the property. She was told that the Public Trustee was not at liberty to disclose the contents of the will and that the McCallums would have to decide for themselves whether or not they sold the residence”.16

The McCallums were unaware that they were the beneficiaries of the specific gift under the will. The sale was a lawful exercise of the power of attorney. It was done for the benefit of the deceased although as Thomas J observed she would probably have disapproved of the sale.

The Re Viertel exception

The question posed in Re Viertel was whether the Public Trustee could transfer the debentures to the McCallums or whether they should form part of the residuary estate. Those facts did not readily lend themselves to any of the recognised exceptions to the rule of ademption. Thomas J identified the issue in the following terms:

“…. whether or not an ademption is effected when a sale is lawfully made by an attorney who is ignorant of the terms of the will when the testatrix is likewise ignorant of the action of the attorney, and when the intention of the testatrix to benefit the devisee never alters.”

Thomas J relied upon what he regarded as a further and different exception to the rule of ademption recognised in Jenkins v Jones (1866) LR 2 Eq 323.

The testator in that case was a farmer who held a yearly tenancy. In his last will he appointed his wife and son as executors and left to his son“....the whole of my farming stock animate and inanimate including the whole of my implements of husbandry, which shall be in my possession at my decease’. Two years prior to his death the testator lost capacity. Consequently, his wife and son gave up possession of the farm and sold all his farming stock and implements. They deposited the proceeds into a bank account. The residual beneficiaries brought a motion for an account of those funds. Sir J Stuart V-C, held:

“I think that it was no act of the testator that the chattels were converted, for he never intended any conversion, but intended that the specific legatee should have his farming stock, I ought to refuse the motion to vary the certificate”.17

Jenkins–v-Jones does not sit comfortably with the established exceptions to the rule of ademption18, which is reflected in the note of caution, which Thomas J expressed in Re Viertel19:

“It would be preferable that a point of this importance be determined by a court of greater authority. That seems unlikely in the present case, as no adverse party is opposing the relief which Mr and Mrs McCallum seek. With some hesitation I express the view that the rule recognised by Stuart VC in Jenkins v. Jones above is an historical exception to the consequence of ademption and that the present circumstances fall within that exception .”

Young CJ in Eq discussed the difficulty with this interpretation of Jenkins v Jones in Johnston v Maclaren [2001] NSWSC 932 at [18-19] where he said :

[18] In Jenkins v Jones (1866) LR 2 Eq 323, 328 , Stuart VC considered that there was an exception to the ademption rule where the annihilation had taken place without the testator’s knowledge, even if it had occurred with implied authority. He based himself on Shaftsbury v Shaftsbury (1716) 2 Vern 747; 23 ER 1089 ...

[19] Although, it is a tad difficult to reconcile these cases with principle, see In re Slater [1907] 1 Ch 665, 671, they remain good law. This was the conclusion reached by Thomas J in Re Viertel [1997] 1 Qd R 110 after reviewing all the authorities including American and Canadian cases and texts .

Young CJ in Eq’s acceptance that Jenkins –v- Jones “remain good law”20, was recognised by Kaye J in Mulhall –v- Kelly [2006] VSC 407 who followed and applied Re Viertel. Mulhall –v- Kelly involved the sale of real estate, for the purpose of maintaining the testatrix after she had lost testamentary capacity. The plaintiff acting as attorney had sold the testatrix’s home unit (which had been specifically gifted to her under the will) in order to pay a bond of $327,000.00 to a nursing home. The balance of the sale proceeds were exhausted in the care of the testatrix and the plaintiff had “commenced to meet the deceased’s living costs out of her own resources”.21 When the testatrix died the nursing home bond was repaid to the executors. Kaye J expressed similar reservations as Thomas J, but applied the Re Viertel exception.22

Re Viertel was not followed by Judge Rich QC in Banks v National Westminster Bank [2005] EWHC 3479 (Ch), but the point was not the subject of vigorous argument before the judge23.

A more rigorous assessment of Re Viertel was undertaken by McMurdo J24 in Ensor v Frisby [2010] 1 Qd R. 146.

[3] In factual circumstances indistinguishable from the present, Thomas J (as he then was) held in Re Viertel that there was no ademption. That judgment has been followed in the Supreme Court of Western Australia in Re Hartigan; Ex Parte The Public Trustee and the Supreme Court of Victoria in Mulhall v Kelly. In the Supreme Court of New South Wales, there is a contrary decision of Nicholas J in Orr v Slender; Estate of Godfrey Raymond Orr, in which Re Viertel and Re Hartigan were cited in argument but not in the judgment. However, for the view of Thomas J in Re Viertel there is some support in the judgment of Young CJ in Eq in Johnston v Maclarn.

[4] The applicants and the executors say that I should follow Re Viertel. The respondent Ms O’Loughlin argues that I should not, because the general law is said to be now affected by s 107 of the Powers of Attorney Act 1998,

The Powers of Attorney Act 1998 (Qld) was enacted after Thomas J delivered his judgement in Re Viertel and Section 107 of that Act pertinently provided:

107 Power to apply to court for compensation for loss of benefit in estate

(1) This section applies if a person's benefit in a principal's estate under the principal's will, on intestacy, or by another disposition taking effect on the principal's death, is lost because of a sale or other dealing with the principal's property by an attorney of the principal.

(1A) This section applies even if the person whose benefit is lost is the attorney by whose dealing the benefit is lost.

(2) The person, or the person's personal representative, may apply to the Supreme Court for compensation out of the principal's estate.

(3) The court may order that the person, or the person's estate, be compensated out of the principal's estate as the court considers appropriate but the compensation must not exceed the value of the lost benefit.

In Ensor –v- Frisby the respondent did not pursue an argument that Re Viertel was decided wrongly but rather that it was supplanted by the enactment of section 107. McMurdo J followed Re Viertel after an analysis of the authorities.

[19] The main difficulty in all of this is in seeing any justification for ignoring the words used in the will. If they are incapable of meaning anything other than a gift of specific property and not also of its proceeds of sale, then as Young CJ in Eq has said, it is “a tad difficult” to reconcile any exception with the principle. But once an exception is recognised for an unauthorised act of which the testatrix was unaware, it is a relatively smaller step to recognise, as Thomas J did, an exception where the act was done under the authority of an enduring power of attorney. Ultimately I am persuaded to follow Re Viertel, followed as it has been in two other Australian jurisdictions.

McMurdo J held that section 107 could apply consistently with the Re Viertel exception, where the testator had capacity at the time of the disposition or where the proceeds were fully expended or could not be traced. However, Section 107 does not contemplate tracing the benefit. As any compensation must come out of the estate it is possible that other beneficiaries may suffer a reduction in their entitlements.

The law had recognised that where a gift had been adeemed there was no point in seeking to trace the gift unless a situation arose as recognised by Cozens-Hardy MR in Re Slater [1907] 1 Ch.665 at 672:

“…..you have to ask yourself , ‘Where is the thing that is given?’ If you cannot find it at the testator’s death, it is no use trying to trace it unless you can trace it in the sense, that you find something which has been changed in name and form only, but which is essentially the same thing"

Where a specific gift such as a house is sold for the purpose of providing a nursing home bond, and the bond is refundable on the testator’s death a tracing exercise is straight forward. Yet the traditional exemptions to ademption did not contemplate a conversion of an asset into a refundable fund.

The extension of the Re Viertel exception

In September 2010 in Moylan –v- Rickard [2010] QSC 327 Peter Lyons J applied and extended the Re Viertel exception in circumstances where there was no specific gift and the exceptions to the rules of ademption did not apply. His Honour considered that an analogy “may be made with the approach taken in Re Viertel to avoid the failure of the gift intended by the deceased in favour of her husband.”25 Peter Lyons J held “The principle that an act taken during the testator’s incapacity does not affect a disposition of property is not, it would seem, limited to cases to which the doctrine of ademption applies”.26

In Public Trustee of Qld as Administrator of the Estate of Ellen Olwen Richardson, deceased v Lee & Ors [2011] QSC 409 Ann Lyons J identified the prerequisites to the Re Viertel exception27. However, in that case the attorney knew of contents of the will and therefore the previously accepted prerequisites could not be satisfied. Her Honour held at paragraph [31]:

I can see no valid reason why ignorance of the contents of the will should be an essential component before the exception to the rule can be invoked particularly when one of the duties of an attorney would always be to make decisions in the best interest of the principal. Furthermore the cases relied on by Thomas J in Re Viertel are not cases which made ignorance by the person disposing of the property an essential element .

Her Honour also specifically adopted the reasons of Hargrave J in Simpson –v- Canning28 in accepting that knowledge of the contents of the will did not exclude the Re Viertel exception.

RL –v- NSW Trustee and Guardian [2012] NSWCA 39

Two features of RL –v- NSW Trustee and Guardian are worth noting; the special gift in the subject will was a life interest in a shed and Campbell JA recognised that Re Viertel had no application in New South Wales because Section 22 Power of Attorney Act (NSW) 200329, “covers the type of situation with which Re Viertel was concerned”. Campbell JA undertook a comprehensive and thorough examination of the cases and opined that “Re Viertel has come to an incorrect view of the Law”30 Campbell JA held that Thomas J erred in failing to recognise that Jenkins –v- Jones was a case involving an unauthorised dealing in the estate prior to the testator’s death31.

[152] Jenkins v Jones, on which the decision in Re Viertal (sic) purported to be based, was a case where a farmer had made a will that appointed his wife and son as executors. The will gave a specific bequest to his son of certain of his farming stock. The farmer became incapable, following which his wife and son sold the farming stock. However, they did not have any authority to deal with his estate at that time. That lack of authority would have amply justified the court's conclusion that the legacy had not been adeemed. By contrast, in Re Viertel the attorneys had full legal authority to sell the house.

In Re Viertel Thomas J accepted that the sale by the attorneys was lawful and that the executors were bound by the attorneys’ action. What concerned him was not whether the principal was bound by an attorney’s act but rather because of a lack of capacity the principal was incapable of making a provision for the beneficiary of the specific gift which had been adeemed.

Campbell JA's views are set out at paragraph [183]:

Absent matters such as dishonest dealings, a principal is bound by the acts of his attorney within the scope of the authority conferred, even if the principal has no intention to carry out the specific act that the attorney has carried out. This is no different to the way in which an incapable person is bound by acts, performed with proper legal authority, of whoever is administering his or her affairs, whether that administration is occurring under a court or Guardianship Tribunal management order or an enduring power of attorney.

A defect in Campbell JA’s reasoning was his failure to properly recognise the development of the Re Viertel exception and the fact that at the time of his judgement the exception was no longer an extension of Jones –v Jenkins but was in fact a discrete exception to the rules of ademption.

Campbell JA addressed Simpson –v- Cunning, at paragraph [187] but His Honour did not address Hargrave J’s analysis of the authorities including the following:

“In my opinion, the statements in Jenkins v Jones were not intended to create a new exception to the ademption principle. Rather, as held in Banks v National Westminister Bank,32 Jenkins v Jones was an application of the existing exception for unauthorised dispositions of the relevant asset without the knowledge or consent of the testator.”

Nor did Campbell JA address Hargrave J’s recognition, that Re Viertel represented a discrete exception to the rules of ademption or Hargrave J’s dicta on testamentary intent:

In support of the third submission, that the further exception was inconsistent with the testator’s testamentary intent, counsel contended that the exception would require the Court to compare the testator’s asset position at the date of the will, the date of the disposition and the date of death; and to consider the testator’s likely wishes if competent to decide what course to follow at these times. I do not accept those submissions. The further exception requires the Court to give effect to the testator’s presumed wishes in circumstances where he or she no longer has the capacity to decide what should be done. That does not involve supplanting the testator’s wishes with those of the attorney or the Court. Rather, it involves the Court in an assessment of the testator’s likely wishes if given the choice, when mentally competent, to alter his or her will in circumstances where the relevant property must be sold to further his or her interests33.

These are important matters which were not resolved by the judgement of the New South Wales Court of Appeal in RL –v- NSW Trustee and Guardian.

On 13 November 2012 Ann Lyons J delivered her judgement in Public Trustee of Queensland (as litigation guardian of Erhel May Brigg also known as Lucy Brigg) v Stibbe as executor of the Will of the late Winifred Deidre & Anor [2012] QSC 357 declined to follow Re Viertel:

I am also satisfied that I should not follow the decision of Re Viertel, which was for over a decade accepted as authority for the proposition that a specific gift was not adeemed if the property was disposed of by a third party without the knowledge of the deceased. In the recent decision of RL v New South Wales Trustee and Guardian, the New South Wales Court of Appeal held that Re Viertel was wrongly decided. The Court held that the sale during the deceased‘s lifetime of a ‘lock up garage', which was specifically gifted under a will, resulted in an ademption of a specific gift of that asset even though it was sold in accordance with a court order after the testatrix lost capacity. The Court held that the real question is ―whether the testator possessed the property in the specific gift at the time of his death. If he did not, the legacy is adeemed by annihilation of the subject.

The vice which Re Viertel addressed was the situation where a specific gift was disposed by a third party acting lawfully for the benefit of the testator prior to the testator’s death in circumstances where the testator lacked the testamentary capacity to make a fresh arrangement for the beneficiary.

Conclusion

Thomas J recognised that although it was desirable that a court of higher authority should determine the issue before him, that was unlikely as: “ ... as no adverse party is opposing the relief which Mr and Mrs McCallum seek.” Hargrave J also recognised that one of the difficulties in analysing the authorities was the lack of vigorous argument in opposition. Hargrave J recognised that at the core of the problem lay a fundamental injustice. The example he gave was telling:

Moreover, as rightly acknowledged by counsel for the defendant, there are many circumstances where the strict application of the ademption principle will lead to an unjust result which is obviously against the testator’s wishes. For example, a husband and wife have three children, a daughter and two sons. They jointly own three properties of approximately equal value – the family home and two investment properties. They make mutual wills providing that the surviving spouse leaves the family home to the daughter and one investment property to each son; with the residuary estate being left to a favourite niece. In circumstances such as the present, an attorney sells the family home to pay an accommodation bond. The daughter survives the parents. If the ademption principle is strictly applied, the niece receives the balance of the sale proceeds as part of the residuary estate; leaving the daughter to make a claim for further provision out of the estate under testator’s family maintenance provisions of applicable legislation if there are grounds to do so. Such a result is clearly unjust, and not in accordance with the parents’ obvious intent34.

The decisions in Re Viertel and Simpson –v- Cunning are well reasoned and just and delivered in States where there was no legislative equivalent of Section 22 Power Of Attorney Act (NSW) 2003. Lord Tyre in Turner (Gordon’s executor) –v- Turner35 analysed the approach of Judge Rich QC in Banks v National Westminster Bank PLC and the Australian authorities decided prior to RL –v- NSW Trustee and Guardian and commented.

[31] In re Viertel has been followed by judges in a number of other Australian states; the various decisions are summarised in the judgment of Gzell J in Power v Power [2011] NSWSC 288. For present purposes I wish only to refer to an observation by Hargrave J in the Supreme Court of Victoria in the case of Simpson v Cunning [2011] VSC 466 at paragraph 45 that Re Viertel "...constitutes a justified extension of the common law to reflect current circumstances". My impression of the Australian case law is that at least some of the judges who have addressed the issue have been inclined to regard ademption as an unjust result, and have accordingly focused upon awareness of the testator, rather than authorisation, as the basis of the Jenkins v Jones exception to ademption. Power v Power also provides an interesting illustration of a sale by an attorney that was held not to be ademptive because it did not fall within the scope of the attorney's authority.

[32] In the end, however, a choice between the English and Australian approaches is not before me, as Scots law has adopted neither authority nor awareness as the criterion for determining whether the act of a representative such as an attorney has ademptive effect. It is, though, of some reassurance that the approach which I consider that I am bound to adopt on the basis of the Scottish jurisprudence produces a result which has generally been regarded in the Australian cases as a reasonable one and not the result which was regarded as unfortunate in Banks v National Westminster Bank plc.  

Young JA conceded in his judgement in RL –v- NSW Trustee and Guardian “the line of cases of Queensland” were “well reasoned decisions.”36

But Section 22 Power of Attorney Act (NSW) 2003, is the legislative equivalent of the Re Viertel exception. There is uncertainty as to whether the Re Viertel exception can be maintained. Hargrave J and Mullins J in their judgements both suggested that legislative intervention was required to “resolve doubt”. The alternative is an argument in the High Court, would seem unlikely as few estates could bear the costs of the litigation.

In his memoir “An almost forgotten world” when speaking of his early career as a Barrister James Thomas wrote of a comment by his colleague Octavius Joseph North:

“I often took my problems to him (O.J. North) and received quick and relevant replies. Among his pearls of wisdom were words along the following lines.

‘You can’t find a common law principle to cover your case? Well, ask yourself what the law ought to be on it. You will nearly always find that this is what the law is. And if there really is no law or case exists on the point, it will be the law if you get the message across to the Judge. And if you think about what the law ought to be instead of what you want it to be, you will usually come up with the right catchword. Then when you have another look at the textbooks and digests, you may actually find there is a relevant principle after all.”37

The re Viertel exception is what the law ought to be. The New South Wales legislation recognises its virtue. To not legislate may very well result in what Lord Tyre identified as “unfortunate” outcomes for the victims of an unintended ademption. Section 107 Powers of Attorney Act 1998 is inadequate to properly address the situation where a property is sold to fund a nursing home bond and the bond is refunded. The Parliament of Queensland should amend the legislation to include a provision akin to Section 22 of the New South Wales Power of Attorney Act.

Anthony W. Collins

Footnotes

  1.  Trust Company Limited –v- Gibson & Anor [2012] QSC 183
  2. Para [27]
  3. Paragraph [151] Campbell JA opined that Thomas J had “accepted the sort of argument rejected in Re Freer (1882) 22 Ch D 622
  4. Paragraph [152-157] Ibid
  5. Simpson –v- Cunning [2011] VSC 466 paragraph [45]
  6. Public Trustee of Qld as Administrator of the Estate of Ellen Olwyn Richardson, deceased –v- Lee & Ors [2011] QSC 409
  7. Roderick Paisley “Ademption and Powers of Attorney “The Journal of the Law Society of Scotland” 12 April 2012
  8. Paragraph [45]
  9. Section 45(4) Succession Act (Qld) 1981
  10. Section 45 (1) and (2) Succession Act (Qld) 1981
  11. Section 33E Succession Act (Qld) 1981
  12. Paragraph 20
  13. Re Viertel (1997) 1Qd.R.110
  14. made on 2 November 1982
  15. Date of sale 25 July 1994
  16. At line 11-15 page 111
  17. Jenkins v Jones (1866) LR 2 Eq 323 at 329
  18. As is set out below Campbell JA took the view that the gift was not adeemed because the executors were not authorised to dispose of the assets .
  19. Thomas J Re Viertel (1997) 1Qd.R.110 at page 116
  20. Prior to Johnson v Maclaren; Re Viertel was adopted by the Western Australia Suprme Court in In the Matter of the affairs of Hartigan;Ex Parte The Public Trustee (unreported Western Australia Supreme Court CIV 2283 of 1997) ;
  21.  Mulhall –v- Kelly [2006] VSC 407 Paragraph 2
  22. It should be noted that there was no serious opposition to the orders proposed and any further legal action would see the estate diminished .
  23. See Hargrave J Simpson v Cunning paragraph [32]
  24. Judgement delivered 07 September 2009
  25. Paragraph [58] ibid
  26. Paragraph [55] ibid
  27. Paragraph [22] Public Trustee of Qld as Administrator of the Estate of Ellen Olwyn Richardson, deceased –v- Lee & Ors [2011] QSC 409
  28. Paragraphs [33]
  29. Para[149] RL –v- NSW Trustee and Guardian [2012] NSWCA 39
  30. Para [151] ibid
  31. Para [152] RL –v- NSW Trustee and Guardian [2012] NSWCA 39
  32. [2005] EWHC 3479 (Ch), [28].
  33. Paragraph[37] Simpson –v- Cunning [2011] VSC 466
  34. Para [40] Ibid
  35. Turner (Gordon’s executor) –v- Turner [2012] CSOH 41
  36. Para [190] RL –v- NSW Trustee and Guardian [2012] NSWCA 39
  37. James Thomas “An Almost Forgotten World” SCQ Library 2011

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