Intention an element in Revocation​

Richard Miruzzi died in March 2016, aged 87. Richard was twice married: both marriages ended in divorce. Between April 2011 and 22 December 2015 or thereabouts, Richard instructed his Solicitor on multiple occasions to draft or amend a will for him.

That pattern in the dealings between Richard and his solicitor was that Richard, from time to time, instructed his solicitor to prepare a will, Richard would attend to the execution of the document independently of his solicitor and the executed document was then returned to the solicitor for safekeeping.

In the months before his death, Richard had expressed a wish that he would leave his entire estate to a friend, Leonie Rigney.  However, in November 2015, Richard and Leonie had a falling out leading to Richard “destroying” what was believed to be all previous Wills gifting Leonie his estate; leaving the whole of his estate to

“The Children’s Hospital at Westmead for its general medical purposes”

In February 2016, Richard arranged an appointment to see his solicitor at his accountant’s office. The solicitor believed that it was “to execute the will” leaving his estate to the Children’s Hospital; the accountant, following discussions with Richard, believed he did not intend to sign the 2016 draft Will at the appointment.

Prior to executing the Will Richard was admitted to hospital after a fall, rapidly lost capacity and died.

Three weeks prior to his death, Richard and Leonie reconciled their relationship with Richard telling her that he wanted to make a Will leaving everything to her.

In July 2016, Richard’s solicitor found an original Will dated 17 August 2015 (the 2015 Will) in his office leaving everything to Leonie; who commenced proceedings to have the 2015 Will admitted to probate.

Importantly the Court has held that the document sought to be admitted to probate as an informal will must, itself, be considered in context;

“In appropriate circumstances, an inference may be drawn that the deceased was aware of the formalities required for a will. This may affect the question whether the Court should be satisfied that the deceased intended the informal document to be his or her will or an alteration to his or her will.”

The Children’s Hospital cross-claimed on the basis that the 2016 draft Will was an informal Will pursuant to section 8 of the Succession Act 2006 (NSW) could be admitted to probate.  It also argued the deceased destroyed a copy of the 2015 Will on the mistaken belief he had destroyed the original.

Richard’s former spouse argued that she was his de facto spouse at the date of death and neither document should be admitted to probate, as such she should receive the whole estate on intestacy.

Was the 2016 draft Will was an informal Will?

In order that the 2016 draft Will be admitted to probate,

“the deceased’s testamentary intention must be found not in any initial instructions given to his solicitor but in an intention manifested on or about 16 February 2016”. 

The Court held that the evidence suggested that although Richard requested the draft to be sent to him, he did not have a settled testamentary intention at that time.

Similarly making an appointment to execute the Will wasn’t evidence of Richard’s intention to benefit the Children’s Hospital over Leonie at that time either, as he had not executed the Will and he had reconciled with Leonie.

 “More probably than not, the deceased intended to make no new will unless and until he executed a formal will.  His established pattern was to make formal wills.”

The Court believed that Richard’s experience of attending to the execution of a multitude of wills independently of his solicitor provides a foundation for a finding that he was, at all material times, aware of a need for the execution of a formal will. There is, on the other hand, no foundation for attributing him with knowledge of the potential operation of section 8 of the Succession Act.

Had the 2015 Will been revoked?

The Court concluded that only one original version of the 2015 Will existed therefore, Richard had destroyed a photocopy of the 2015 Will as such it was insufficient for revocation; The legislation requires actual destruction of the will a “symbolic destruction” of a surrogate photocopy of a will is insufficient.

The failure to properly revoke a Will can be just as detrimental to an estate as the failure to properly execute a Will. An effective revocation requires the active destruction of the Will; the destruction of a photocopy of a will in the mistaken belief that it is the original is not an effective revocation.

 “The formalities of revocation of a will are no less important to due administration of an estate than those governing the making of a will.  The intention to make a will and the intention to revoke a will are paramount; but, in practical reality, some formality is required at each stage of estate administration so that the requisite intention can be conveniently verified.”

The Court held that the one certainty, in this case, was that the original 2015 Will found its way into the safekeeping of Richard’s solicitors firm and there survived the deceased unscathed.

The Court held that Richard had died without having revoked the 2015 Will and wasn’t satisfied that he intended the unexecuted draft will to operate as an informal Will, or intended that it operate with immediate effect at any time in advance of his prospective execution of a formal will.





Co-Executors can Lead to Conflict

A recent case is illustrative of the need for will makers taking care in naming the executor of there estate in order to avoid conflict and unnecessary delays and expense.

Robyn Wise died in April 2011 aged 60. Her son Shane Wise, one of her co-executors was granted probate in March 2013, of Robyn’s Will made in September 1998. Stephen Barry was living in a de facto relationship with Robyn at the time of her death and also a co-executor of her estate. Robyn’s Will left half the value of her home to her de facto spouse and the other half to her sons.

Robyn and Stephen had lived together as a couple for about 15 years since about 1996 until her death; in a home unit which was owned by Robyn estimated at $245,000 at her death, it was the major asset of the estate.

Stephen continued to reside at the property. He married in 2016 and his new wife and her children subsequently moved into the house and continued to live there.

The property remained registered in Robyn’s name and could not be sold or otherwise dealt with without both Stephen and Shane reaching an agreement. Protracted negotiations between them as to the sale of the coastal property or its purchase by the de facto spouse had failed.

Shane commenced proceedings in November 2017 seeking an order that Stephen be removed as co-executor claiming Stephen had prevented Robyn’s estate from being finalised; and sought an order that Stephen vacate the property in order that it be sold. Shane argued that by in continuing to reside in the property without an entitlement Stephen had wrongfully interfered with the estate’s property rights.

Stephen filed a cross-claim in the court contesting the will, seeking a family provision order that as Robyn’s defacto partner he should receive the whole of the coastal property because it had become his home over the years.

The court accepted that the due and proper administration of Robyn’s estate had been prevented by Stephen’s actions. As executor, Stephen was obliged to consider the interests of all the beneficiaries and just his own interests.

Importantly the court considered that as the proceedings were commenced and Shane and Stephen were unable to resolve the matter, there was no realistic expectation they would work together to finalise the estate.

In NSW unless the affected parties consent or otherwise without sufficient cause being shown for the delay a family provision claim must be commenced within 12 months after a deceased person’s death.

The court considered that as Stephen made the claim almost seven years after Robyn died and had sought legal advice from a number of solicitors during that period did not show sufficient cause. Similarly, the other beneficiaries would suffer prejudice if the court allowed the claim and the court believed that Stephen’s claim was not likely to succeed.

Although Stephen’s financial circumstances were not as strong as the other beneficiaries the court believed that as he had remained in occupation at the property, rent free, for approximately seven years, it was not satisfied that he was not adequately and properly provided for by Robyn’s will.





MLK Intestacy & Protecting A Legacy

The Reverend Martin Luther King, Jr. was a Baptist minister, activist, humanitarian, and leader in the African-American Civil Rights Movement. Best known for advocating nonviolent civil disobedience based on his Christian beliefs to promote Civil Rights he was assassinated in Memphis on April 4, 1968, at the age of 39. King died without a will.

King’s heirs formed the Estate of Martin Luther King Jr. Inc., a for-profit corporation to allow his family to control his estate. Following the death of King’s Wife, Coretta Scott King in 2006 and his oldest daughter Yolanda in 2007 relations among the remaining siblings began to deteriorate.

King’s son Dexter currently oversees the estate.  King’s children have brought a number of lawsuits against each other over the handling of the estate, citing the withholding of information, mismanagement and misappropriation of assets

The Estate was involved in a long-running dispute with the Martin Luther King Jr. Center for Nonviolent Social Change a non-profit institution founded by King’s widow over 45 years ago to educate and promote King’s Legacy. Ongoing litigation with the estate has placed a financial burden on the Centre.

Dexter’s sister Bernice, is the head of the King Center that has displayed King’s travelling Bible and Nobel Peace Prize medal. Dexter, wants to sell the Bible and medal to a private buyer and claims that by refusing to surrender the Bible and Nobel medal; Bernice is violating a 1995 agreement amongst the heirs that assigned the title and all rights and interests in King’s property to the estate. Bernice disputes the validity of this agreement, arguing the estate has not complied with a 2009 court ruling.

Bernice claims that she inherited the Bible and Medal from her late Mother, and believes that they should never be sold because they are sacred. The case was settled in 2016.

The Estate has been highly litigious in protecting the physical and intellectual property of the estate. Including Martin Luther King’s name and likeness, recordings of his sermons and other memorabilia including with Estate of Martin Luther King, Jr., Inc. v CBS, Inc. the copyright status of the  “I have a dream”speech.

On the afternoon of August 28, 1963, the Southern Christian Leadership Conference (“SCLC”) held the March on Washington (“March”) to promote the growing civil rights movement. The events of the day were seen and heard by some 200,000 people gathered at the March and were broadcast live via radio and television to a nationwide audience of millions of viewers. The highlight of the March was a rousing speech that Dr Martin Luther King, Jr., the SCLC’s founder and president, gave in front of the Lincoln Memorial (“Speech”). The Speech contained the famous phrase; “I have a dream …,” which became symbolic of the civil rights movement.

The Speech was reported in daily newspapers across the country, was broadcast live on radio and television, and was extensively covered on television and radio subsequent to the live broadcast. About a month after the delivery of the Speech, Dr King took steps to secure federal copyright protection for the Speech under the Copyright Act of 1909, and a certificate of registration of his claim to copyright was issued by the Copyright Office on October 1963

For the next twenty years, Dr King and the Estate enjoyed copyright protection in the Speech and licensed it for a variety of uses, and renewed the copyright when necessary.

In 1994, a documentary series entitled “The 20th Century with Mike Wallace” devoted a segment to “Martin Luther King, Jr. and The March on Washington” was made by CBS. It contained extensive footage filmed by CBS of the Speech (amounting to about 60% of its total content). CBS, however, did not seek the Estate’s permission to use the Speech in this manner and refused to pay royalties to the Estate.

The speech is not in the public domain but is private property, owned by the King family, and anybody who wants to use it is supposed to pay for that right. For that matter, family members own all of King’s papers and speeches, some of which also operate the licensing operation through which those who want to use them must go.

While some use of the speech or parts of it can be lawful without approval — individual teachers, for example, are not challenged when they use the speech in violation of the copyright — the makers of the 2014 film “Selma” were never given permission to use King’s words or life story because they couldn’t get a license, which had been sold to two companies for a movie about King’s life that Steven Spielberg is supposedly going to make.

On summary judgment, the district court framed the issue as

“whether the public delivery of Dr King’s speech … constituted a general publication of the speech so as to place it in the public domain.”

After discussing the relevant case law, the district court held that Dr King’s

“performance coupled with such wide and unlimited reproduction and dissemination as occurred concomitant to Dr King’s speech during the March on Washington can be seen only as a general publication which thrust the speech into the public domain.”

Thus, the district court granted CBS’s motion for summary judgment.

On appeal, the Court held that a performance, no matter how broad the audience, is not a publication; to hold otherwise would be to upset a long line of precedent. This conclusion is not altered by the fact that the Speech was broadcast live to a broad radio and television audience and was the subject of extensive contemporaneous news coverage.

In the Estate of Martin Luther King Jr. Inc. v Howard Nelson Ballou the Estate sought possession of historic documents relating to Dr King, including handwritten letters from King, transcripts of his speeches, and his writings concerning the 1950′s civil rights movement.

The documents were given to Howard Ballous’ mother Maude when she worked for King she has given evidence that she believes the documents were gifts to her and remained as personal belongings to her family ever since.  Unfortunately, it is not known whether Dr King wanted her to hold onto them as an employee, or keep them as gifts?  As Dr King never made a Will no one really knows what his intention was.

Last April an audiobook The Radical King was published to coincide with the 50th anniversary of Dr King’s assassination. It was the first time the MLK Estate has allowed a dramatic interpretation of Dr King’s words — Academy Award Best Picture Nominee Selma paraphrased Dr King’s speeches because the estate had already licensed the rights for another film.

If Dr King had left a Will it could have stopped many of these expensive lawsuits. Where a Will isn’t made it leads to fights over personal property.  A Will is an easy way to prevent ongoing court disputes. Possession


A “ Purported Will” isn’t necessarily an informal Will

In a recent matter, the Supreme Court of Queensland had to decide upon a question of costs in a situation where a deceased person’s family member requested a copy of a document held by a Solicitor that the family member argued was a Will for the purposes of s33Z of the Succession Act 1981 (Qld).

Alan Spottiswood, died in May 2018 leaving a will made in 1988 naming his wife as executor. Alan had two children, Hayley and Matthew.

In July 2017, Alan met with his lawyers who were conducting a property settlement on his behalf and discussed and completed several documents as part of an “Estate Kit” including; Will instructions, enduring power of attorney instructions, and a “No Immediate Will Acknowledgement”.

During the discussion, Alan indicated that he wished to name his daughter Hayley as executor and leave everything to her or her children. He did not sign the will instruction sheet however he gave instructions in relation to his funeral arrangements and as to organ donations. Importantly he signed a No Immediate Will Acknowledgement.

Hayley applied for a certified copy of Alan’s will under s 33Z of the Succession Act 1981 (Qld) (the Act). Alan’s lawyers refused as they considered that the documents did not consist of a will as he had signed the No Immediate Will Acknowledgment.

Additionally, Alan’s Lawyers argued that the will instructions checklist were subject to legal professional privilege and that Alan or the executors (Legal Personal Representatives (“LPR”) of Allan’s estate had not waived such privilege.

Haley applied to the Supreme Court of Queensland for a finding whether that document constitutes a will (as defined) for the purpose of s 33Z of the Act.

In the intervening period Hayley applied for a limited grant of letters of administration making her the LPR for the estate; therefore was able to seek copies of those documents in her capacity as LPR.

The Courts Decision

The Court held that s 33Z did not apply to a document which, as although it arguably sets out testamentary intentions, it is accompanied by a document completed at the same time stating that

“ I do not wish the Will Instructions Checklist to be my will.”

Therefore in those circumstances, the document does not purport to be a will nor is it one that can be described as a doubtful testamentary instrument.

In the circumstances, Hayley would not have been successful in the application. The court ordered that Hayley should pay the costs of the application and that they should not be paid out of the estate.

Importantly if there had not been a signed “No Immediate Will Acknowledgment” form. It could have been argued that Alan’s instructions were an informal Will and the outcome of this matter may have been quite different.




Written Consent depends on the Jurisdiction

Joel and Yoshiko Chapman met in 2014 and lived together from early 2016; during this time they expressed to each other their wish to have children together. They married in late 2017.

Prior to their marriage, they took out private health insurance as a couple in order to be covered for pregnancy and childbirth. Following their marriage, they sought medical advice about Yoshiko’s ability to fall pregnant and attempted to start a family.

On 23 March 2018 Mr Chapman underwent a surgical procedure. On 29 March 2018 Joel suffered a massive stroke following surgery, he was pronounced dead at 10:00 am; at 4:00 pm, following the urgent application for a Court order by Yoshiko samples of Joel’s sperm, were extracted and cryopreserved at the Royal Hospital for Women (“RHW”) in Randwick.

Notwithstanding the common law provision regarding treating patients without permission, the Human Tissue Act 1983 (NSW) (“the Act”) prohibits subject to certain exceptions, the removal of sperm from an unconscious patient without consent or court order.

Yoshiko sought a declaration that she is entitled to possession of the sperm. She also asks that interlocutory orders of the Court, by which removal of the sperm from storage and use of it were restrained be discharged:

“so that I can safely store it until a time that I may decide to use it”.

The Assisted Reproductive Technology Act 2007 (NSW) (‘ART”) prohibits storage, export, possession and usage of sperm without the sperm donors written consent.

Joel had not provided any such written consent prior to his operation on 23 March 2018 because there was no occasion for it. Following the operation, he was unable to give written consent.

The South Eastern Sydney Local Health District (“SESLHD”) administers RHW and is a registered provider of assisted reproductive technology services as defined in ART. Importantly without Joel’s consent, SESLHD can only continue to store the material under the original Court orders and the sperm cannot be used for IVF in New South Wales.

In discussing the Court’s parens patriae jurisdiction (power of the Court to act as the parent of any individual who is in need of protection.) It was found that the surgical extraction of sperm from an unconscious and moribund patient was not for their benefit, welfare or protection.

The Firmly established principles are against the Court authorising an invasive procedure for the sole purpose of benefiting another. In the present circumstances where the patient is beyond being benefited in any sense by the extraction of his sperm; it could only be for the benefit of another party, the surviving spouse.

The Court affirmed that the steps taken to preserve and store the sperm after removal from the body following a valid court order sufficient work and skill had been lawfully applied to constitute it the property of the widow at whose behest the work and skill had been applied. Therefore she is entitled to possession of the sperm.

However given the lack of written consent Yoshiko must arrange transportation of the sperm to a storage facility in a jurisdiction where written consent is not a mandatory requirement; either Tasmania, the Australian Capital Territory or the Northern Territory.















Post Separation Inheritance – Is your ex entitled to part of it?

The Holland’s lived together from 1990 until their separation in July 2007 and divorced in January 2012. They had two children.

In August 2000, the Holland’s purchased a home for $160,000.00. Mr Holland’s grandparents advanced them $31,000.00, which was repaid within three years; when they separated the mortgage on the former matrimonial home was $132,332.09.

Mr Holland commenced his own business around 1992; in 1997 the business was restructured as a partnership, called Holland Trade with the Husband and Wife as joint partners. A joint bank account was opened. The husband undertook the work and the Wife engaged in administration/book work for the business. Following their separation, the Husband re-established his business as a sole trader.

During the relationship the Wife was the primary carer for their children; following their separation in July 2007, the Wife remained in the family home with the children until in or around 2009 with the Husband paying the mortgage repayments.

In early 2009 the husband formed the belief that the Wife had re-partnered and the new partner was spending a significant amount of time in the former matrimonial home.

Since that time, the Wife has been responsible for the mortgage repayments on the home; she renovated the house and let it. The rental income, allowed the Wife to pay the mortgage and other expenses; the Wife is employed casually as a Community Worker.

Additionally, from early 2009 until October 2011, the husband made no child support payments due to his belief that the wife’s then partner was residing in the former matrimonial home.

In October 2011, following assessment by the Child Support Agency the husband has met his child support obligations and had made further payments beyond those required of him to meet additional expenses of the children.]

Some three and a half years after their separation the Husbands brother died leaving a Will; the Husband inherited property with a mortgage of $83,000.00. The Husband’s parents received the Husband’s brother’s superannuation benefits under the Will and paid out the mortgage. Leaving the Husband as sole proprietor of the property.

At the time of trial, the Property had an agreed value of $715,000

The Family Court considered the property to be a financial resource ( an amount of money that a person would have access to post-separation, but not an asset of the relationship). It was therefore excluded from the asset pool, as it had been received post-separation. The asset pool, not including the inheritance, was only $370,000.

The wife appealed, saying that the inherited property should have been included as an asset, and not as a financial resource.

The Full Court of the Family Court allowed the appeal on the basis :

“.. it is wrong as a matter of principle to refer to any existing legal or equitable interests in property of the parties or either of them as ‘excluded’ from, or ‘immune’ from, consideration in applications for orders pursuant to s 79 [of the Family Law Act 1975 (Cth) (‘The Act’)]”.

Essentially, it becomes a question of what contribution the other party may have made to that asset. It is not correct to assume that it will be excluded and, consequently, that the ex-partner will receive no money as a result of that asset being inherited.

in any event, it is the real impact in money terms which is ultimately the critical issue”

In allowing the appeal the Full Court agreed the Court erred in the approach taken to the assessment of contributions which, in turn, derives in part from an erroneous finding that property owned by the husband was a “financial resource” and not as an asset in the property pool; and that it should be excluded from the property as the basis for an assessment of contributions.

Arguably had the property settlement occurred earlier perhaps the above situation might not have arisen.





Avicii & Swedish Intestacy Law

Swedish DJ Tim Bergling (known professionally as Avicii)was found dead reportedly following his suicide in Muscat, Oman in April this year. He was buried in June in Stockholm.

Tim died intestate therefore as he was not married, nor had any children, according to Swedish law, whatever remains of his financial estate after national and international tax debts would go to his parents. The estate is worth upwards of $25 million.

A musician, DJ, remixer, and record producer Tim started remixing at an early age posting his own remixes on online forums under the name Avicii – a version of avīci, a Buddhist term for hell.

Tim is credited as one of the DJs to introduce electronic dance music (EDM) into Top 40 radio in the early 2010s.

His single “Levels” released in 2011 and debut studio album, True (2013), which peaked in the top ten in more than fifteen countries; “Wake Me Up”, the lead single topped most European charts and reached number four in the United States.

In 2014, Avicii was the third-highest-paid DJ in the world and collaborated with Madonna, Lenny Kravitz, Zac Brown and Coldplay. He also became a brand name, selling items like Avicii condoms at his own pop-up store in Miami.

Tim used his success to promote and bankroll various charities that fed the poor in both Europe and the United States as well as helping to raise awareness, fight the spread of, and increase the care options for those living with HIV and AIDS

In 2012, he was hospitalized for more than a week in New York for acute pancreatitis, partly the result of heavy drinking, which the DJ said was to calm his nerves in social situations. In March 2014, a year after doctors suggested he have his gallbladder removed he finally had the surgery.

Stories, Avicii’s second album was released in 2015 followed by an EP Avīci (01) in 2017. He was nominated for a Grammy Award for his work on “Sunshine” with David Guetta in 2012 and “Levels” in 2013.

In 2016 having suffered stress and poor mental health for several years Avicii retired from touring.

Since his death, Tim’s parents have re-organised his website as a memorial board, and donated his Steinway piano to a Stockholm museum. As they now control Tim’s estate they reportedly are in discussions with Tim’s label as it has been reported an Album of unreleased material was being produced with Nile Rodgers before Tim died. Rodgers revealed in September that he had recorded ten or more tracks with Tim as an Avicii project.

The only way that you can direct your assets after you die is if you create a valid will. Intestacy law directs your estate but not necessarily in a way that would reflect your wishes. You shouldn’t leave your family to deal with managing your intestate estate – that could include protracted legal disputes. Making a will is an important part of planning for your future giving you and your loved ones peace of mind.