The High Court held that the testators actions in opening the account and

The high court held that the testators actions in

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The High Court held that the testator's actions in opening the account and paying monies into it were not breaches of his promise not to revoke his will and the fact that he contributed to the account with the intention or desire of depleting the estate which might pass under his will did not nullify the transaction”
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That would not be any particular form of property or amount of money> therefore not breaches of agreement Para 46 - necessary to emphasise that the promise was no more than a promise to leave the appellants what property he had at death> not a promise not to part with any particular property in his lifetime Hussey v Bauer [2011] QCA 91 Walter Bauer and Thelma Bauer were married in 1967, a second marriage for each. The plaintiffs are Walter's children from his first marriage and the defendants are the children of Thelma's first marriage. During the currency of this marriage there were only 2 assets of any value, land, at Buderim, owned by Thelma and a unit at Mooloolabah, owned by Walter. Walter died first, in 1992; Thelma first changed her will in 1995, basically an administrative change, when she changed executors, then in 1996, she gave the Buderim property to her daughters (consideration was natural love & affection), then in 1997 she made another will under which she gave the Mooloolabah property to Walter’s children and the residue of the estate to her children Amended the will so her daughters got what she brought & his children got what he brought> this was contrary to the will W's children sued on the basis that they made mutual wills and agreed not to revoke and the daughtrs held the property of CT for all of the childen in equal shares of TiC> this was upheld Held (32): “The transfer by Thelma of the Buderim property to the defendants was an inter vivos transaction, the effect of which was clearly to defeat the intention of the agreement between Thelma and Walter . Evidence was given by the defendants that Thelma continued to live in the house and pay rates and outgoings after the transfer. Transactions of this kind, intended to defeat the agreement of the testators, are not able to be made by a surviving party to a mutual wills agreement. 16 Fazari v Cosentino [2010] WASC 40 The plaintiff is the daughter of the marriage – she is the executrix of the estate of her father. After his death, the mother transferred a valuable property into a discretionary trust of which she and the son of the marriage are the trustees. The named beneficiaries of the trust are the mother, son and grandson (son of the son) and it was found on the evidence that the gift to the discretionary trust was made with the intention that the property would be appointed to the son.
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  • Law, Equity, Trust, Wills and trusts, Trust law, Constructive Trust, CONSTRUCTIVE TRUSTS

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