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Ancillary issues

Ancillary issues

By Philip Barton

Litigation Maintenance (Family) 


Recent Victorian Testator’s Family Maintenance litigation has highlighted diverse unusual ancillary points. Recent Victorian testator’s family maintenance litigation has highlighted diverse unusual ancillary points including: jurisdiction where there is foreign probate or property; executors’ duties and the consequences of early final distribution in extension applications; stay pending determination of criminal proceedings; settlement without beneficiaries’ consent; and clawing back property into the estate. Testator’s family maintenance law (Part IV of the Administration and Probate Act 1958)1 is in an unusual state in two respects. First, there is the flux created by the change in law applying to claims against estates of persons dying from 1 January 2015, chiefly now requiring claimants to be “eligible persons” (s90(2)).2 Second, there has been a rash of Supreme Court cases on diverse and sometimes even unique points ancillary to Part IV litigation concerning:

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