Author: | Neil McLeod B Ec (Hons), LLM, PhD Professor of Law, Murdoch University School of Law |
Subjects: | Book Reviews Law Inheritance and Succession - Australia Wills - Australia |
Issue: | Volume 8, Number 1 (March 2001) |
Category: | Current Developments |
The failure of the propounder's wife to give evidence and the failure by the solicitors to say who gave instructions for the will, in all the circumstances of the case, led to the inference that the propounder's wife, more or less contemporaneously with a procuring of the insurance policy and the will, determined that the testator's death should be compassed to the benefit of herself and her husband.
Attempts to address the type of factual circumstances arising in In the Estate of Yearwood are fraught with the risk of being void, as the testator must not create a shifting executorship, whilst simultaneously being careful to identify the intended executors with sufficient certainty.
It was thus possible for a will to be made disposing of the dead part, although commonly it was given to the church on final confession. These restrictions gradually fell into disuse however, so that, except in certain areas, by the fifteenth century it was possible to dispose of the whole personal estate by will. Intestacy, though not common at this stage, ...At what stage? The "twelfth and thirteenth centuries" or the "fifteenth"?
... was also governed by the same general custom, so that if the deceased failed to dispose of the dead part that part was to be given to the church for pious purposes, such purposes being the purchase of prayers, distribution to the poor and relief of poor relations.
Jurisdiction over both testate and intestate succession was assumed by the ecclesiastical courts, most probably because of the church's claim to distribute the dead part in the case of testate succession.
In Mabo v Queensland (No 2), the common law assumption of terra nullius in respect of the settlement of Australia by the English was rejected by the High Court of Australia. The assumption was that there was no existing law in place at that time.A reader who was unfamiliar with this material might assume that the High Court had made the assumption referred to in the second sentence. This might be a logical inference from the fact that both the act of the High Court in the first sentence and the assumption in the second seem to coexist (in the imperfect tense: 'was'; cf 'The assumption had been ...'). The reader might have been saved from error had the author used a demonstrative. (For "the assumption" read 'that assumption'.) But in its absence, the reader is led astray by the fact that the reference to the "High Court" is interposed between the reference to "terra nullius" and the explanation of what terra nullius means. This would not have happened if the author had used an active verb instead of a passive one. (Cf 'In Mabo v Queensland (No 2), the High Court rejected the common law assumption of terra nullius in respect of the settlement of Australia by the English. The assumption had been that there was no existing law in place at that time.')