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.

ACD and the Older Patient

An Advance Care Directive (“ACD”) often referred to as a “Living Will” is a document stating the specific medical treatment that the patient does or does not wish to receive. In order to make an ACD a person must have legal capacity, and the medical treatment that they want to receive must be expressed in a clear and unambiguous way

An ACD enables you to set out the medical care you wish to receive when medical technology might be required to keep you alive. Importantly if you lack the capacity to make decisions about your medical treatment the person or persons you appoint as substitute decision-makers, family members and significant others must be informed with regard to your medical wishes

In the absence of an ACD consent for medical treatment must be considered on a case by case basis and may be given by:

  • the patient if they have legal capacity;
  • the patient’s guardian;
  • the spouse of the patient (if they have capacity),
  • by the patient’s carer;
  • or by a close friend or relative of the patient.

A persons capacity to make health care decisions must be carefully considered as what appears to be valid consent given by a capable adult may be the result of undue influence, or of some other circumstance.

Recently in the United States 393 patients all 65 or older with multiple illnesses, were involved in a study regarding their treatment preferences prior to undergoing risky surgery either planned or as an emergency.

Most surprising was that patients undergoing planned operations were as likely to have documented their wishes as those who had emergency surgeries.

Only about a quarter had advance care directives (ACD) outlining their preference for treatment options including whether they would like to receive life support and who should make medical decisions on their behalf, in the event they are unable to do so.

Patients aged over 85 were more likely to have prepared ACD than people aged 65 to 74. Those who made more frequent trips to the doctor and those diagnosed with mild cognitive impairment were also found to be more likely to have prepared an ACD.

When researchers followed up it was discovered that among those who died within a year after their operations, only 31% had prepared an advance care directive.

When contacted by researchers Doctors claimed that they often found it difficult to discuss an ACD feeling that they lack the training required to have that type of conversation with their patients. Others raised concerns that in discussing complications and death it took away some of the hope that patients had of undergoing a full recovery.

The paper found that there are often disagreements among loved ones who are overwhelmed when asked to make decisions about issues they haven’t discussed before. When patients don’t prepare an ACD their family often lack guidance at a time where they can be surprised and overwhelmed if asked to make decisions that they have not considered before. The study recommends that all older adults with multiple chronic conditions undergoing high-risk surgery would benefit from having advance care directives completed and documented in medical records.


The Executor and Trustee – More than mere words

Miriam Douglass died in May 2016. Miriam’s last will dated 29 September 1999 (the Will) appointed Elizabeth Paulsen and another person as executors and trustees. Elizabeth was left as sole executor and trustee following the renouncement as executor and trustee of the other person. Probate of the Will was granted to Elizabeth in October 2016.

The Will provided for the residue of the deceased’s estate to be held upon trust for “The Norman Anderson and Norman Memorial Trust” (“the Trust”) care of “The Royal North Shore Hospitals, St Leonards”,  “for its research into prostate cancer and breast cancer only”

The Will provided that if at the time of Miriam’s death that the Trust had ceased to exist the Trustees shall in their absolute and unfettered discretion choose a charitable organisation in New South Wales whose purposes are the same as or similar to those [of] the Trust and shall be at liberty to pay such moneys or transfer such securities to the said organisation as though it had been named in my will in lieu of the Trust.

The Trust was established by a person with a history of establishing trusts for the purpose of or related to, cancer research. Therefore the position as to the administration of the Will is not uncomplicated.

Elizabeth sought a declaration that the Trust had “ceased to exist” at the time of Miriam’s death; if the answer to the question is “yes”, can Elizabeth apply the residue of Miriam’s estate to the Garvan Institute of Medical Research (“Garvan Institute”) to be used for breast cancer and prostate cancer research only in the terms expressed by the Garvan Institute.

The Garvan Institute is a registered charity that has indicated to Elizabeth in a letter dated 13 December 2017 its willingness to hold the residue of the estate in an endowment fund named in Miriam’s honour and to ensure that all proceeds are used to fund research into prostate cancer and breast cancer only is a suitable substitute beneficiary.

The Northern Sydney Local Health District, which is responsible for the administration of the Royal North Shore Hospital joined the proceedings. The Attorney-General authorised the commencement of the proceedings but not the filing of a cross-claim by the Northern Sydney Local Health District(though the Attorney-General did not oppose its joinder as a defendant).

The Northern Sydney Local Health District submitted that the Norman Anderson and Norman Second [M]emorial Trust has not “ceased to exist”, it has simply been altered and now operates under the name of and in accordance with the provisions of the Norman Anderson and Norman Cancer Prevention Trust. In those circumstances, the proviso set out in the Will is not triggered; and the Royal North Shore Hospital can accommodate and comply with the restriction that the gift be “for its research into prostate cancer and breast cancer only”.

The Court ordered that as the Will itself contemplated the possibility that the named Trust would have ceased to exist at the time of death and made provision for what was to happen in that event. Hence there would be no question of the gift of the residue lapsing if the correct conclusion is that the First Trust has ceased to exist.

The Court decision allows Elizabeth to apply the estate’s residue to The Garvan Institute for the purpose of funding research into breast and prostate cancer only in the terms expressed in the letter from The Garvan Institute to her.





Australian Intestacy Harmonisation thanks to WA Legislation

If you die without a Will or leave a Will deemed by the courts to be ineffective as it:

  • Fails to properly dispose of all your assets,
  • Does not meet the legal formalities of being correctly signed and witnessed, or was made by someone who lacks legal capacity.
  • Where part of the Will is valid but part is invalid a person is considered to die partly intestate resulting in greater difficulty than administering a fully intestate estate.

There is a belief that if you wish only for your spouse and children to receive your estate the Laws of intestacy may be suitable; however, under intestacy, the way your estate must be divided is directed in specifically fixed proportions depending upon the family, or domestic relationship between you and your family members.

If a person dies intestate their relatives will have to apply to the Court for an administrator to be appointed. An administrator arranges the funeral, collects assets, pay any debts and taxes the estate owes then distribute any funds remaining. As your assets will be distributed according to legislation the administrator must establish the next of kin. Courts have a broad discretion to appoint an administrator, in most cases whoever has the largest share in the estate is considered the most suitable.

In many cases, a person who can prove that they are the de facto partner may be considered to be the spouse of an intestate partner and in some cases will displace the entitlements of a spouse. In certain circumstances “Children” include illegitimate children

If the next of kin is a child or an incapable person the Court may require the administrator to obtain an administration bond (usually equal to the value of the estate being administered) to guarantee any loss suffered as a result of the appointed administrator failing to properly administer the estate

Importantly the assets of the intestate must be sold in order for the estate to be distributed under administration. You cannot rely on the laws of intestacy to provide specific gifts for friends, charities or to leave provision for pets.

In Western Australia each year, roughly one in four estates administered rely on the intestacy laws set out in the Administration Act 1903 (WA) (“the Act”).

As I have posted earlier Australia’s first Billionaire Robert Holmes à Court, died following a heart attack in 1990 aged 53. His estate was estimated to be worth over $800 million; however, following his death, extensive searches were undertaken but no executed Will was found.

Holmes à Court, a lawyer who planned his business affairs so carefully failed to manage his affairs leaving his estate to be dispensed under the legislative formula of intestacy.

Section 14 of the Act directs the distribution of a person’s estate if they die without a valid will:

  1. A surviving spouse or de facto partner is entitled to the household chattels, the first $50,000 of the estate and one-third of the balance of the estate and any children will equally share the remaining two-thirds of the estate;
  2. If a person dies without leaving children, a surviving partner will be entitled to the first $75,000 of the estate and one half of the balance, with the remaining half of the estate distributed amongst the parents and siblings of the deceased.

In June a bill was introduced into Western Australian Parliament to reform the intestacy laws set out in the Act because the current provisions do not adequately provide for a surviving spouse or partner. Additionally, they Harmonise Western Australia’s legislation with Australia’s other states and territories.

The Amendment Bill provides:

  1. A surviving partner is entitled to the household chattels, the first $435,000 of the estate and one-third of the balance of the estate and any children will share equally the remaining two-thirds of the estate;
  2. If a person dies without leaving children; a surviving partner will be entitled to the first $650,000 of the estate and one half of the balance, with the remaining half of the estate distributed amongst the parents and siblings of the deceased.

Even with these changes, it is important that you draft a Will that reflects your intentions and will distribute your estate upon your death — in the manner that you want, instead of in the way that is dictated by statutory provisions setting out the distribution of your estate.