Succession Law Reformin New South Wales
2011 Update
Professor Rosalind Croucher
Wills
Dispensing power
• Is there a document?• Does the document
embody testamentary intentions?
• Did the deceased intend the document, without more, to be the will?
RectificationRectify to carry out intentions where• there’s a clerical error• the will does not give effect to
‘instructions’
Succession Act s 27
• Deceased intended to divide residue into six shares – one to Justin and his wife jointly, not additional one to Justin (7th share)
• Will rectified – six shares
Estate of Davis [2010] NSWSC 989
Rectification
Justin & Mrs Justin
Justin
E
D
C
B
A
Rectification
Justin & Mrs
Justin
E
DC
B
A
“My home 11 Grevillea St”
Rectification
= ademption residue ????
Instructions?• solicitor’s note – “if house sold for
retirement unit, then residue to be divided”• “name down for Anglicare unit”• deceased wanted to benefit daughter
more than son
Rectification
• new will prepared after sale:
“all of the monies which will be refunded from RSL Lifecare for the residency agreement that I am a party to for Villa 1”
• she died before signing new will• will rectified – gift caught new form
Estate of Tait; Vesco v Bannister [2010] NSWSC 1274
Rectification
Statutory wills
The will is one that the incapable person:• would have made;• would be reasonably likely to have made
Succession Act s 22(b)
Statutory wills
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??????????????????????????
Statutory wills
nil capacity
lost capacity
Lost capacity: consider the person’s –• relationships• history• personality• size of the estate• previous wills
Re Fenwick [2009] NSWSC 530
Statutory wills
What if there is no will?• don’t start with a presumption against
intestacy• but there’s probably some evidence to
satisfy the court that person intended, at some stage, to make a will
• if insufficient evidence then applicant fails
Re Fenwick [2009] NSWSC 530
Statutory wills
‘[i]t is a serious matter for the Court to appropriate to itself the will-making power of the citizen’.
Re Will of Jane [2011] NSWSC 624, [84].
Statutory wills
Right to inspectIncludes:• anyone named in the will• beneficiaries• spouse, children or parents• next of kin• creditor
Succession Act s 54
Family Provision
Family Provision
(a) the husband or wife
(b) de facto
(c) child
(d) former spouse
(e) sometime dependant
(f) close personal relationship
Succession Act s 57
Eligibility
Carers?• s 57(f) – ‘close personal relationship?• s 3(3) – living together, providing domestic
support and personal care• s 3(4) – not satisfied if
– for fee or reward– on behalf of an organisation
Eligibility
Adult children patterns:• the dutiful child rewarded under the will,
facing a claim by an estranged/undutiful child
• the needy child rewarded under the will facing a claim by siblings who are not needy
Family Provision
Family Provision
• $10,000 to Lynne• 40% to Michael• residue to Michael
and three sisters (not Lynne)
Rita’s
Andrew v Andrew [2011] NSWSC 115
Evaluating claimsKey messages:• it is not about re-writing wills• it is not about ‘fairness’ from a child’s
viewpoint• it is not about ‘equity’ between children• parents are still able to make judgments
about the worthiness of their children
Evaluating claims• a parent is not expected to provide
forever for children• a child who is still dependent may
have a continuing claim• the community may expect a parent to
provide a ‘buffer against contingencies’ for a child who falls on hard times – depends on size of estate and competing claims
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Gut instincts
Section 60 factors, include – • applicant’s contribution to estate or welfare
of the deceased (financial or otherwise)• deceased’s contribution to applicant• character and conduct of applicant• evidence of what testator wanted
Evaluating claims
• What is the reason?• Needs of plaintiff, size of estate, other
claims?• Deceased is entitled to make no provision
for a child who treats their parents callously
Estrangement
Result• Estrangement not the fault of the
deceased – and over 35 years• Good relationship continued with other
children• Testator entitled to make little provision for
child who withholds support and love without justification
• Conduct and need inter-related
PropertyNotional estate – Part 3.3• entering a prescribed transaction• timing• deeming
Eg – joint tenancy• = prescribed transaction – s 76(2)(b)• takes effect on death – s 77(3)• should it be deemed? – ss 78, 83
Property
Avoidance strategy?• give cash gifts – but note pension
impact • give away movables – deed of gift but
retain possession as custodian?• > 3 years if possible• provide reasons – to explain, if
needed
Property
Richard Pratt
Richard Pratt
Property
Pratt’s domicile
movablesimmovables
Property
movablesimmovables
movablesimmovables
movablesimmovables
testator’s domicile
Pratt’s propertyDid Pratt leave property in NSW?• no actual estate• notional estate claims over properties held
by companies – Pratt a director
Fiduciary duty
No notional estate
Capacity• difference from prior wills?• explanations for change?• inofficious?• need to take a cautious approach
Probate
Intestacy
Next of kinspouse
issue
parents
siblings
grandparents
aunts and uncles
Family tree …
Intestate BrotherSister
Mother Father Uncle
Grandfather Grandmother
Niece NephewChildren
FirstCousins
Gt-niece
First Cousinsonce removed
Gt-nephewGrandchildren
Gt Grandfather
Gt-Uncle
First Cousinsonce removed
Second Cousins
Gt Grandmother
Second Cousinsonce removed
Per stirpes…
IntestateBrotherSister
NieceNephew
Two
Gt-niece Gt-nephew
NephewOne
• Siblings: two shares• Sister predeceased leaving surviving issue• Sister’s share: divided into two• Niece’s s share divided between her two
children• Nephew Two gets nothing
Per stirpes…
Per stirpes…
IntestateBrother = 50%Sister’s share = 50%
Niece’s share = 25%
NephewTwo = 0%
Gt-niece= 12.5%
Gt-nephew= 12.5%
NephewOne = 25%
For further information on the Uniform Succession Laws
project• QLRC website –
www.qlrc.qld.gov.au • NSWLRC website –
www.lawlink.nsw.gov.au/lrc • ALRC papers and speeches –
www.alrc.gov.au
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