Author: heirsandsuccesses

In October 2002 Keith Crane died in Townsville, Queensland of metastatic bowel cancer. He made a will in July 2000 appointing his sons, David and Kevin, as executors and trustees of the will. He left specific items to his sons with the residue of his estate after the payment of expenses going to David and Kevin in equal shares.

David asked the Court for an order that Kevin be passed over as executor of the estate arguing that there is a dispute between the estate and Kevin about the ownership of three significant assets.

Until shortly prior to this death, Keith was the owner of four shops in Mount Barker valued at $410,000. Six days before his death, Keith sold the Mount Barker shops to Kevin for the sum of $100. Similarly, six days before he died Keith sold a caravan to Kevin for the sum of $100. David argues that at the time of these transactions Keith lacked the capacity to enter into this arrangement arguing that it occurred due to the undue influence or unconscionable conduct on the part of Kevin. The third asset in dispute is an alleged debt of $150,000 that Kevin owed Keith following the transfer of a property 3 years before Keith died – Kevin didn’t pay for the property and subsequently sold it for $250,000.

The Court had to decide if it had the power to remove an executor who has been given a grant of probate.

The Court will not readily pass over a named executor, however there are “special circumstances” where an executor may be passed over; where this occurs the Court must take into account the interest of the beneficiaries and proper administration of the estate; Courts have passed over an executor or revoked a grant of probate on various grounds including:

• The executor was of bad character, had been convicted of manslaughter in relation to the death of the will maker and was in prison.
• The executor had neglected his duties.
• The executor had intermeddled in the estate and refused to take a grant.
• The executor was absent overseas.
• The executor was suffering from ill health.
• The executor was of unsound mind.
• The executor was not competent to take probate.
• The executor had disappeared.
• The estate was insolvent.

 David gave evidence that in October 2002 Keith found it increasingly difficult to talk or to maintain a conversation. He was on liquid morphine and when not unconscious was hallucinating. However Kevin submitted a medical report from the Director of Palliative Care at the Townsville Hospital, who expresses the opinion that there was no evidence that Keith’s judgment would have been impaired by medication or his disease in October 2002.

The Court having regard to the due and proper administration of the estate and the interests of the beneficiaries believed that as Kevin continued to maintain that the transactions involving the Mount Barker Shops and the caravan are legally effective and that he owes no money to the estate, If made an executor, the Court believed that Kevin would not consent to the estate asserting rights in relation to the three assets. Therefore litigation in relation to one or more claims is likely and for these reasons, the Court ordered that Kevin be passed over as executor of the estate.

 

James Dean died in September 1955 as a result of a car crash aged 24, although he only starred in Rebel without a Cause, Giant, and East of Eden he remains a cultural icon and his estate earns millions of dollars a year.

James was abandoned by his father as a baby, and raised by his aunt and uncle, as he died intestate, under Californian law his father- who he had no relationship with- inherited his estate and financial legacy worth around $100,000 at the time (after paying taxes).

A foundation was established to maximize the commercial value of James name, likeness, and image. James’ estate generates between $1-3 million annually through the licensing of his likeness on merchandise and in commercials. The foundation has had to defend itself from lawsuits brought by Hollywood studios. Courts have decided that the estate has the sole rights to sell merchandise and otherwise profit from his legacy.

The ability for the estate to continue to control the rights to James’ name, likeness and image was important not just for the foundation but also for the estates of actors who worked in the film industry during that time period.  If the studios had been successful they would be able to exploit these rights commercially instead of the estates of movie stars.

It is arguable that James didn’t want his father to inherit his estate—and control his name, likeness, and image. His father could then direct where the estate would go and who made the decisions, and the millions of dollars earned each year from memorabilia and collectables.

As James didn’t create a Will he had no say in how his estate was directed. The intestacy laws of the state he lived in when he died governed who received and controlled his legacy.

It is important that you take steps to plan for you and your family’s future. Take out life insurance, prepare an advance care directive and a Will as a minimum – remember these documents can be updated as often as you like- but it is better to make them to reduce the stress on your friends and loved ones at an already difficult time.

Forty kilometres offshore from the town of Merimbula, on the south coast of NSW is the only Sea Burials Australia site on the east coast of Australia.

British seafarers and especially the British Navy often found it necessary to perform sea burials. Without refrigeration or any practical way to preserve bodies for a traditional land burial, and with the added superstitions surrounding shipboard corpses and hauntings, there was no alternative.

Sailors believed well into the 19th century that sea birds, such as storm petrels or albatross carried the souls of dead sailors, therefore it was extremely unlucky to harm them. They also believed the dead could be angered by a careless disposal.

A sea burial required the body to be stitched into a shroud by the ship’s sail maker with tradition dictating that the last stitch should pass though the corpse’s nose – an action that was thought to revive the merely comatose. It was believed that with out this precaution the body would not “stay down,” regardless of being weighted with shot, but would shake off the trammels of its sailor shroud, and reappear as a ghost to its former shipmates.

Later the dead sailor’s hammock was often used as a shroud, with the body being weighted down with lead shot to ensure it sank properly and did not find its way ashore.

After a short religious service, the body would be committed to the deep;

We therefore commit this body to the deep to be turned into corruption, looking for the resurrection of the body when the sea shall give up her dead and the life of the world come…

Burial of Human remains at sea is not common in many jurisdictions. In Australia it is regulated primarily by the Environment Protection (Sea Dumping) Act 1981(Cth)

Under the Act the burial of a body in ‘Australian Waters’ with a permit is allowed:

• where the body is dumped from any vessel, aircraft or platform; and
• where the body is dumped from an Australian vessel or Australian aircraft into any part of the sea.

Application for a permit to bury a dead body at sea may be made to the minister. The Minister must either grant or refuse the application within 90 days after the application is made however the process usually takes 3 to 4 working days. Importantly ‘permits are generally only granted to those with a demonstrated connection to the sea, such as long serving navy personnel or fisherman’

Sea burials require the body to be placed in an area where there is no chance the remains will be disturbed, at a depth in excess of 3000 metres; only natural, non-toxic and biodegradable materials must enter the marine environment.

The regulations mean the standard embalming process, and coffin is not allowed. The body is enclosed in a weighted canvas shroud in accordance with the “Ship Captain’s Medical Guide”.

In Australia there are only a handful of burials at sea each year with even the Royal Australian Navy not performing a burial at sea since June 1976.

Frank Swann died in hospital following a long illness. His remains were cremated. His son Graham made the funeral arrangements. Frank was born in Birmingham and immigrated with his wife to Australia in 1967. In Birmingham he had lived near Pipe-Payes Park, and often visited the park with his wife and children; it was his wish that his ashes be taken to England to be scattered over Pipe-Payes Park.

His widow, a daughter Vanessa, Graham, and another son in Birmingham survived Frank; Apart from Graham it was the desire of the family that Frank’s wishes as to the disposal of his ashes should be complied with.

Graham was told by an employee of the crematorium that often where a family had come from England it was a usual practice for half the ashes to remain in Australia and the other half to go back to England. He accepted this idea and was under the belief that his mother agreed to it.

A few weeks after Frank’s death, Graham signed a contract with the crematorium paying $590.00 for Frank’s ashes to be halved, half were to be taken to England and half were to be placed in the rose garden space with a plaque.

His mother made plans to leave for England and take with her the half of the ashes now in the rose garden as well as the half, which she has already collected from the Crematorium to comply with Frank’s wishes. Graham refused to authorise the release of the ashes from the Crematorium for this purpose.

The executor of Frank’s estate commenced proceedings seeking the Crematorium to release the half of the ashes that it held and deliver them to him. If successful the executor would hand them to Frank’s widow so that she may comply with his wishes; Graham opposes this and the Crematorium will comply with any order of the Court.

As we have posted before there is no property in a dead body, however after death the custody and possession of the body belongs to the executors until it is buried. . It may be that after burial a corpse forms part of the land in which it is buried and the right of possession to it goes with the land. In such a case the right of the executor would be lost.

The Court concluded that where cremation of the body has occurred an executor has a right to possession of the ashes of the deceased particularly where the executor intends to act in accordance with the wishes of the deceased.

In this case the ashes have been retained by the crematorium based on a contract entered into between them and Graham. The Court had to decide whether the executors right to decide how the ashes shall be disposed of is secondary to the contractual right.

There is an inconsistency between Graham and his mother as to the arrangement entered into with the Crematorium. The Court accepted the widow’s evidence that she was not consulted beforehand and that Graham presented her with the arrangements made as a fait accompli and she did not protest. Importantly the Court took into account that Graham had a strained relationship with Frank and had not seen him for two years before his death, and that all the other members of the family wish the ashes to be taken by their mother to England.

The Court found that the executor was entitled to the ashes and as Graham resisted the wishes of the other members of his family to have the ashes taken back to England by the widow he should pay the costs of the proceeding, including the Crematorium’s costs.

Australia’s organ donation rates are relatively low compared to other developed nations, ranking 22^nd in the World. Sadly there are not enough donated organs to meet demand.

Currently Australia has 16.9 donors per million population with the Government aiming to increase that number to 25 by 2018.

Australia’s national reform programme aims to implement a world’s best practice approach to organ and tissue donation for transplantation. The twin objectives of the national reform programme are to:

• Increase the capability and capacity within the health system to maximise donation rates; and
• Raise community awareness and stakeholder engagement across Australia to promote organ and tissue donation.

In 2015, 435 organ donors enabled 1,241 Australians a new chance in life.

The national reform programme was implemented in 2009 and improved Australia’s organ and tissue donation rates, but it has been argued that intensive care procedures aimed at identifying more potential donors have not been followed properly.

Around 1,500 people are on Australian organ transplant waiting lists at any time.

Depending upon where you live in the world there are different systems for organ and tissue donation. Some have an opt-out system, where everyone is a donor unless they or their family state otherwise. Others, such as Australia, prefer the opt-in system; no one is a donor unless a next of kin chooses otherwise.

Some of us will have ticked the donor box on our driver licence but despite this, at the time of our death, the decision to donate our organs will lie with our family; start the conversation with your family, loved ones and friends about whether you wish to be an organ and tissue donor.

Importantly an online Australian Organ Donor Register has replaced the state based driver’s licence system (except in South Australia).

In the event that you are involved in a fatal accident the hospital staff will discuss with your family which organs and tissues may be possible to donate. This will depend on the person’s age, medical history, and the circumstances of their death. The family will be asked to confirm which organs and tissues they agree to be donated.

Organs that can be transplanted include the heart, lungs, liver, kidneys, intestine and pancreas.

Tissues that can be transplanted include heart valves and other heart tissue, bone, tendons, ligaments, skin and parts of the eye, – such as the cornea and sclera.

Organ and tissue donation does not affect funeral arrangements.

An adult deceased donor liver can benefit two recipients – it can be split so that one larger section can be transplanted into an adult and the smaller segment given to a child.

In this blog we discuss the need to make plans for your future, that could be superannuation, insurance, advance care directives, powers of attorney, and Wills. Importantly if you believe (as the overwhelming number of Australians do) in donating your organs and tissues discuss this with your loved ones and register.

 

 

Peter Lorre died of a stroke aged 59 in March 1964, without a Will. Born László Löwenstein in Hungary, Lorre moved to Vienna to begin his acting career. Moving to Germany he became a successful stage and screen actor – causing an international sensation playing a serial killer in the 1931 Fritz Lang film M.

As a Jew he left Germany when the Nazi’s came to power in 1933 and came to prominence after being cast by Alfred Hitchcock in the 1934 version of The man who knew too much. He immigrated to the United States in 1934, settling in Hollywood and being contracted to Columbia Pictures.

Peter was often cast in sinister or malevolent roles with the Hollywood reporter stating

“There is perhaps no one who can be so repulsive and so utterly wicked. No one who can smile so disarmingly and still sneer. His face is his fortune.”

Peter appeared in a series of B movies in the late 1930’s before being cast by John Huston in the 1941 film noir The Maltese Falcon, the following year he played the pivotal albeit minor role of Ugarte in Casablanca. However following the war his Hollywood career diminished, he believed in part to his “gray listing” by Jack L Warner for his sympathetic attitude to the short-lived Committee for the First Amendment during the McCarthy era, and filed for bankruptcy.

Married three times, with one daughter Catharine, Peter suffered from chronic gallbladder troubles for which doctors prescribed morphine to which he became addicted. He was awarded a star on the Hollywood walk of fame in 1960.

Curiously in late 1963, Peter Lorre found himself involved in a strange legal case involving a young German immigrant Eugene Weingand who applied to change his name legally to “Peter Lorie, Jr.”, claiming (1) everyone called him “Peter Lorie” and (2) his own name was too hard to pronounce.

Peter Lorre objected to this attempt to trade on his name, as did American International Pictures, which had Lorre under contract, the Courts agreed.

Months after Peter’s death Eugene Weingand reapplied and was permitted to change his name legally to “Peter Lorre, Jr”. He was a minor actor who had roles in television series and made for TV movies often letting people believe that his father was the real Peter Lorre.

Peter’s persona has been appropriated multiple times by actors performing as animated characters, (Renn & Stimpy, the Genie in Aladdin, Warner Brother’s cartoons) and famously to sell Boo Berry breakfast cereal – a cartoon ghost  looked and sounded like him – his estate objected arguing that he wouldn’t have wanted to be remembered that way. It has been reported that his estate was worth $40million in 2016.

Gordon and Beverley Priestly were farmers who had 3 children. Their farming properties were owned by the GW Priestley Family Trust. Their son, Duncan, was the only child that worked on the farm. In 1986, Gordon assured Duncan that

“one day all of this will be yours”

Not long after Duncan resigned from his job as an engineer and started to work full time on the farm in the belief that he would inherit Salt Glen and the neighbouring property Caramba and a share of the other properties.

In 1996 Duncan complained to his father that:

“I am sick of doing all the work and everyone else getting the benefit. Unless I know for certain what I am going to end up with I can’t continue.”

Gordon told him that “You, your brother and sister will all end up with an equal share”.

Duncan said “That’s hopeless. You will have to run the place without me then.” he left the property, and started work as an engineering surveyor. Where he was paid more in a day than he was paid in a week working on the farm.

In 2001 Gordon purchased a property in Duncan’s name; Duncan and his wife moved onto the property in February 2001.

Gordon and Beverly’s relationship broke down in the late 1990’s and they divorced. The family entered into a settlement deed. Clause 1(a) of the settlement deed provided for various titles of land already in the sole names of Gordon and Duncan to remain with them and for Gordon and Duncan to agree between themselves whether to designate those properties differently.

Duncan believed that the settlement deed was made, with the intention that he would help his father maintain and run the farm and in recognition, Gordon would leave the farm to Duncan.

In 2007 Gordon made a will leaving his estate to Beverly and his 3 children equally. Less than two weeks before he died on February 2012 he revoked his earlier will and left his estate to Beverly only.

In addition to having a Will, many farmers incorporate testamentary contracts into their estate plans. These contracts aim to provide certainty for children who farm on land owned by their parents that the land will one day pass to them.

In order to form a legally binding testamentary contract there must be:

• an offer and acceptance
• intention to create a legally binding agreement
• consideration (not necessarily money)
• a legal capacity to enter a contract; and
• proper understanding and consent of what is involved.

The Court held clause 1(a) of the deed did not amount to a testamentary contract there was no agreement that Gordon would make a will in favour of Duncan or revoke a will without Duncan’s consent; Similarly there was no agreement that Duncan would receive the farming property held in Gordon’s name upon Gordon’s death in exchange for working on the farming property.

Clause 1(a) prevented Gordon and Duncan from disposing of land without the consent of the other during Gordon’s lifetime. However it did not prevent Gordon leaving the farming property in his Will.

Regardless of other mutual promises between Gordon and Duncan, Gordon was not under any obligation to not revoke his will, which is illustrated by his conduct in making later wills. If a testamentary contract existed, this would have prevailed even though probate had been granted over Gordon’s will.

 

Frances Ponikvar died in South Australia in June 2010 aged 86 years. She had never married and had no children. Her estate was valued at $436,870.

Frances had seven brothers and sisters, all of whom predeceased her, and 12 nieces and nephews who survived her. Of those 12 nieces and nephews, four of them were Australian residents.

The deceased had made two wills in May 1993 (“the 1993 will”) that was held by the Public Trustee and February 2007 (“the 2007 will”).

The original of the 2007 will could not be found. However the deceased’s solicitor who drafted and witnessed its execution by Frances had a copy of that will. It was Frances solicitor’s usual practice to give her clients the original will, together with a letter, advising that a will is an important document and should be kept in a safe and secure place and suggested telling a person the client trusted of its whereabouts.

A series of searches of Frances’ home have not discovered the original 2007 will. Similarly there have been no responses following the publishing of notices in the local metropolitan newspaper and the Law Society journal seeking it’s whereabouts.

The 2007 will revokes the 1993 will and was made following the death of the executor of the 1993 will, Frances niece Sandra Novak, was a beneficiary under the 1993 Will but was left out of the 2007 Will and opposes the application.

The issue that the court must determine is whether the presumption of revocation has been rebutted.

Where a the court is asked to grant probate on a missing Will it must take into consideration

• that the original will existed;
• that the original will was duly executed; or, if the original will does not fulfill the formalities required by legislation, that it satisfies the legislative requirements allowing it, as an informal will, to be admitted to probate;
• that there is evidence of the terms of the original will;
• that the copy will is an accurate and complete copy of the original will;
• that thorough searches have been conducted to find the original will, including publishing advertisements regarding the missing original will;
• that the original will revoked all pre-existing wills;
• the circumstances surrounding the absence of the original will;
• that all persons prejudiced by the application, if it is granted, have the capacity to consent to the application; and that the presumption of revocation does not arise or has been rebutted.

The Court formed the view that there were three possibilities: that Frances destroyed her will; lost her will; or had concealed her will in a place that has not been located.

The Court was satisfied that if the deceased had deliberately destroyed the will it would have been only natural for her to have told a close friend or relative. All of the evidence suggested that Frances did not tell anyone that she had changed her testamentary intentions or had realised the will did not accurately reflect those intentions, and that as a result she had destroyed the will. Although the original of the 2007 will cannot be found, it is more likely than not that the reason for it being missing is something other than that the deceased destroyed it with the intention of revoking it and granted probate of the 2007 Will.

Graham and Teresa Dawson were involved in a head on collision with a semi-trailer in August 2015; both died at the scene of the accident.

Graham and Teresa left identical wills leaving their estate to the other and, if the other did not survive them for 30 days, the estate was to go to the same beneficiaries. Of particular relevance to the issue to be determined is clause 2 in each of the wills, which is in the following terms:

Survivorship

Where the order of deaths of any persons named in this Will is uncertain, this Will is to be interpreted as if the deaths have taken place in order from the oldest first to the youngest last.

There is no evidence as to whether Graham or Teresa died first; Teresa was younger than her husband. The executor sought a declaration from the court that a presumption arises that Teresa survived her husband; and in that event have the home transferred to the executor.

Graham and Teresa owned a house as joint tenants at 574A Portrush Road Glen Osmond, the right of survivorship means that, on the death of a joint tenant, the interest of that joint tenant passes by the right of survivorship to any remaining joint tenant or tenants. In this case, if one of the deceased died before the other, then the whole of that person’s interest in the property passes to that other and falls to be dealt with in the estate of the person who survived the longest.

In some jurisdictions common law principles still determine the general approach to the problem of proof of death. This matter was heard in South Australia where in cases of commorientes (where two or more persons dying at about the same time, usually in the same event, but in circumstances in which it is impossible to determine the order of death) it is to be decided upon the circumstances of each particular case having regard to all probabilities. Therefore, the burden of proof lies on the person asserting survivorship.

Many jurisdictions legislated to provide a presumption to be applied when the evidence about the order of death is inadequate that the younger person shall be presumed to have survived the older. As a consequence of this statutory presumption the common law has not developed in a century.

The court found that clause 2 of the will is an aid to the interpretation of the operation of the will and does not seek to usurp the common law in respect of survivorship.

The Court could not find a presumption to assist in this matter, and dismissed the application.

Keith Moon, drummer for the English rock band the Who died in September 1978 aged 32 after overdosing on prescription medication. Acknowledged for his unique drumming style and eccentric, often self-destructive behaviour. Keith influenced  countless drummers including Ginger Baker, Mitch Mitchell and John Bonham. Animal, the drummer from Dr Teeth and The Electric Mayhem (the house band from the Muppet Show) is reportedly based on him.

If the road of excess leads to the palace of wisdom then Keith could be considered the lord of the wise. Dubbed “Moon the loon” Keith took copious quantities of alcohol and drugs,  trashed hotel rooms including nailing all the furniture of a hotel room to the ceiling; blowing up toilet bowls with fireworks; driving his car into a swimming pool; and visiting London pubs dressed in full Nazi uniform.

Keith’s repeated practice of blowing up toilets with explosives led him to a life ban from several hotel chains worldwide, including all Holiday Inn, Sheraton, and Hilton hotels.

The Who’s early stage act relying on smashing instruments, and owing to Moon’s enthusiasm for damaging hotels, left the group in debt for much of the 1960s; Even when the band became relatively financially stable, Keith’s recklessness with money continued with his profit from the group’s 1975 UK tour reported to be £47.35.

During the 1970s Keith’s typical breakfast included sausages & eggs, a bottle of Champagne, a half a bottle of Corvoisier, and two Dexedrine tablets. Alice Cooper was astonished at Keith’s stamina recalling “he never got tired, and it wasn’t because of drugs necessarily, he was just one of those guys who never got tired. You’d be passing out and going ‘enough’ and he’d be going ‘let’s go out!”

In 1977 his intake of drugs and alcohol increased to a point that he overdosed a couple of times, however weeks of inpatient treatment failed to remedy his addiction.

Keith wanted to get sober but had a fear of psychiatric hospitals so chose to do it at home. A Doctor who was unaware of Keith’s lifestyle prescribed a bottle of 100 clomethiazole pills, which prevent symptoms of acute alcohol withdrawal, instructing him to take one pill when he felt a craving for alcohol but not more than three pills per day.  Chlomethiazole is particularly toxic and alcohol multiplies this effect meaning an overdose and can be potentially fatal.

On the night before he died Keith and his girlfriend returned to their flat after socialising with friends. Keith watched a film and feeling hungry asked his girlfriend, to cook him steak and eggs; she refused, Keith is reported to have replied “If you don’t like it, you can fuck off!” – his last words.

Keith then took 32 clomethiazole tablets. When his girlfriend checked on him the following day, Keith was dead. In an interesting coincidence Keith was renting Harry Nilsson’s flat in Mayfair where Cass Elliot had died four years earlier.

Keith was divorced from the mother of his only child; he was living with his girlfriend of 3 years when he died. In the United Kingdom in 1978 when someone died intestate leaving a spouse and children the spouse would take the first £250,000 and personal belongings and is entitled to use the property of the estate or to receive its income until their own death at which point the property passes to the deceased’s children who take the other half of the balance upon the death of the intestate.

Keith’s estate is worth $70million and is managed by Artists Legacy Group. If Keith had created a Will it would have made a difficult time for his loved ones somewhat easier.