Author: heirsandsuccesses

In an earlier post we discussed that Wills are not instruments  for the Will maker to control the  lives of future generations. In adopting a perpetuity period of life or lives in being plus 21 years from the date of creation of the interest Courts have been able to limit the control over property into the future.

Monica Farrelly, died in June 2012 aged 98 years, with an estate valued at over $7 million. Monica never married and had no children. Her last will was made in April 2003; probate of the will was granted to Vikki Phillips, an executor named in the will.

Monica’s Mother, Father and only sibling, Mary had died before her. Mary was widowed and died in 1993, she had no children. Monica’s Mother and Father had 17 siblings between them; Many of her Aunts and Uncles had children, therefore her extended family consisted of over 55 people.

As part of her Will Monica left:

“the sum of TWO HUNDRED THOUSAND DOLLARS ($200,000.00) to be invested by my trustees for the purpose of applying both the capital and income at the discretion of my trustees for the up keep and maintenance of the family graves at Pinkerton Plains”

The executor was doubtful that the clause leaving money for the upkeep of the graves was valid; as it may be void as a non-charitable purpose trust.

To be a valid charitable trust, the organisation must demonstrate both a charitable purpose and a public benefit. Applicable charitable purposes include; the relief of poverty,  the promotion of education, importantly the trust’s purposes must benefit the public (or some section of the public), and not simply a group of private individuals.

The clause in the Will was for the provision for “the up keep and maintenance of the family graves at Pinkerton Plains”, rather than broadly for the upkeep of the cemetery as a whole. The Court’s view was that, the clause could not be considered to create a charitable purpose trust, as there is no public benefit.

The upkeep of graves constitutes a perpetual memorial, consequently the gift for the purposes of the erection of graves, and the perpetual care of the ground fails. The court held the gift of $200,000 to Monica’s trustees to be applied for the upkeep and maintenance of her families graves at the trustees discretion is void as it creates a perpetual trust as the clause has no limit.

Bruce Lee grew up in Hong Kong, and moved to the United States to further his education in Seattle. After college, Bruce moved with his wife, Linda, to California, where he became a film star, and one of the most influential martial artists of the 20th century.

In 1971, Bruce, Linda, and their children Brandon and Shannon moved from California to Hong Kong in order for him to film Game of Death. It was in Hong Kong in 1973 that Bruce died unexpectedly aged 32. He died intestate.

Lee’s influence as a martial artist has endured since his death, both in the United States and abroad. Lee developed his own style of martial arts, Jeet Kune Do, and is one of the most recognised martial artists in history.

Bruce’s assets were administered in California and in Hong Kong. The California probate proceedings considered Lee to be a domiciliary of California at the time of his death. The Estate paid inheritance tax in both California, and in Hong Kong.

Under Californian law a celebrity who was domiciled in California at the time of their death has a post-mortem right of publicity (“ROP”) .

In California, “[d]omicile…includes both the act of residence and an intention to remain; a person may only have one domicile at a given time, but he may have more than one physical residence separate from his domicile, and at the same time.”

Although Linda testified that the family were living in Hong Kong temporarily, and never intended for their stay to be indefinite, there is an ambiguity over whether Bruce’s domicile was in California or Hong Kong when he died.

Following Bruce’s death, there was a split between Linda, who controlled his estate, and the Lee family, who argued that Linda took most of the revenue from his movies and ongoing licensing and cut them out. Linda said at the time she needed the money for her family. However Robert Lee, Bruce’s brother has asserted that he owns the intellectual property rights – a state of affairs that may have been avoided if Bruce had left a valid Will.

The estate’s only tangible assets were shares in Bruce’s Hong Kong-based production company, which were sold to his business partner, Raymond Chow, in 1976. Prior to administration being granted the Estate spent time dealing with licensing issues related to Lee’s “name, likeness and/or image,” which resulted in litigation, against third parties using Bruce Lee’s image without prior authorisation.

The California Courts distributed Bruce’s ROP to his heirs, with a 50% share passing to Linda and 25% shares passing to their children, Brandon and Shannon. In 2008, Linda assigned her interest in the Lee ROP to Shannon who created Bruce Lee Enterprises, (“BLE”) which is wholly owned by Shannon. BLE claims to be the current rights-holder in Bruce Lee’s ROP, as well as other various trademarks and copyrights around the world. Licensing Bruce’s immage generate around $10 million per year for BLE.

Third parties such as the creators of the “Gung Fu Scratch” T-shirt depicting Bruce Lee behind a turntable must obtain licenses before using Bruce’s likeness on products from either the film rights holder, BLE or both.

The rights to Bruce’s films were originally held by his production company, and upon Bruce’s death passed to his business partner, Raymond Chow. Fortune Star Entertainment, a Chinese company, holds the rights for most films, with Warner Brothers Entertainment holding the rights to arguably his most well known film Enter the Dragon.

If Bruce had made a Will he could have transferred his ROP and given clarity to his loved ones and family by stipulating how he would like his estate including his name, likeness, and image to be exploited.

Early this week we posted about the Court interpretation of an iPhone Will. An earlier post discussed a document saved on a USB drive that was admitted into probate. However there must be directions about a significant part of the estate otherwise a Court will not admit the document to probate.

Dennis Warlum died in June 2011 aged 82. Two children, a number of grandchildren, as well as his de facto spouse Eunice Tristram survive him.

After Dennis’s death two documents were found saved on his computer with the description “willcalcs.xls” last modified in May 2008, and “will.doc.” last modified in June 2008. Dennis did not mention to Eunice that he had made a will.

Eunice sought determination from the Court as to whether Dennis died intestate, or if the documents found on his computer after his death should be declared to be a document or documents that the deceased intended to form his will.

In order for probate to be granted the court must be satisfied that the deceased intended that an informal document should operate as their will. A draft document is not acceptable as it lacks the required intention.

It could be argued that the documents on Dennis’s hard drive  appear to reflect his then thoughts as to how the assets might be divided. However the Court believed that there are words that clearly demonstrate that Dennis did not consider that he had completed the task of making a will or that fully stated his testamentary intentions. In some instances it appears Dennis was unclear as to the distribution of his estate particularly what would occur if any of the potential beneficiaries did not survive him.

Dennis did not tell his son, Barry, that he had made a will. However he had a conversation with his daughter, Carol, at the beginning of 2011 where he stated

‘I just want you to know what my wishes are. I have changed my will.’

Dennis did not say where his will was and did not mention who he wished to be executor of his estate. Carol believes that if her father had made a valid will he would have told her where it was.

The Court did not accept that Dennis’s statement “I have changed my will.” was strong enough to show that he intended either of the two documents to be his Will; Particularly as neither of the documents had been modified since 2008.

The Court believed that considering the evidence as a whole, Dennis was advising his daughter of changes to his thinking as to how he intended to leave his estate.

It was submitted to the Court that in 2006 the deceased had consulted a financial adviser in relation to estate planning. The adviser made notes that indicated that at the time no formal Will existed.

The Court was not satisfied that either document formed the last will of the deceased, and declared that Dennis died intestate. Costs were paid out of the estate.

 

 

 

 

 

In March 2014 Danica Weeks drove her husband Paul to Perth International Airport where he boarded a flight to Kuala Lumpur. They were married in November 2007 and had two sons. Paul was an engineer who was travelling to a new job in Mongolia.

Paul boarded the flight to Kuala Lumpur. He had a ticket for onward legs to Beijing on Malaysia Airlines MH370 and thence to Ulaanbaatar by Mongolian Airlines. Paul sent an email to Danica from Kuala Lumpur confirming the onward trip.

Paul Boarded Malaysia Airlines flight MH370 to Beijing, the flight disappeared, and there has been no trace of any person on board that aircraft since.

In January this year Danica sought leave to swear to the death of Paul so that she can apply for letters of administration. It has been reported that Paul died Intestate.

In these circumstances there is no direct evidence of Paul’s death therefore Danica cannot swear an oath to the death of the deceased. However Paul’s death may be presumed to have taken place. This presumption may arise:

“….from his having been on board a ship, which, from its non-arrival in port within a reasonable time, from the absence of tidings of any of those on board, and from other circumstances, is supposed to have been lost at sea; and similarly in the case of a missing or totally destroyed aeroplane.”

The Court will only grant leave to swear to Paul’s death if, it is satisfied that he has died.

Danica swore an affidavit deposing that she and Paul were married, showing that she is entitled to apply for letters of administration. The email that Paul sent from Kuala Lumpur confirming his onward flight was attached. It further deposed that she had identified a photo of Paul shown to her by the Australian Federal Police taken from CCTV footage at the Kuala Lumpur International Airport screening point adjacent to the boarding lounge for MH370.

The affidavit also contained attachments from Malaysia Airlines, the Malaysian Government, and the Australian Government, all to the general effect that (bar one aircraft component found months later on La Réunion) nothing has since been found of the aircraft or its occupants.

The Court was satisfied that Paul boarded MH370 at Kuala Lumpur International Airport around midnight on 7-8 March 2014.

Although on strict analysis much of the material in the affidavit might be considered to be hearsay the disappearance of MH370 is so notorious the Court believes it has disappeared and there is now no hope of survivors. All those aboard must be presumed to be dead.

The Court found that Danica can swear to the death of Paul as of 8 March 2014.

Although there has been a folk tradition of vampires the modern charismatic & sophisticated vampire is based upon Lord Ruthven in The Vampyre by John Polidori published in 1819; Polidori was with Lord Byron, Mary and Percy Bysshe Shelly when he wrote the story at the same time Mary Shelley wrote the Modern Prometheus better known as Frankenstein.

Bram Stoker’s novel Dracula published in 1897 has provided the basis of the modern vampire legend. The popularity of the vampire, in books, films, and television shows has only increased over time with the vampire becoming a dominant figure in the horror genre.

Interestingly under the broad definition given in a previous post vampires could qualify as a type of zombie. However there is a great difference in the genesis of Vampires and Zombies.

As a reminder in Australia the legal definition of death, is defined as:

a) Irreversible cessation of all function of the brain of the person; or

b) Irreversible cessation of circulation of blood in the body of the person.

As with zombies, there is some question regarding how you become a vampire. In some traditions if an animal jumps over a corpse, the dead body transitions into a vampire, in others the transition occurs where evil spirits control a corpse (similar to Haitian Zombification). Clearly these vampires have died therefore the executor when applying for a grant of probate can meet their obligation of swearing an affidavit as to the death of the Will maker and attaching a copy of the death certificate.

However where transition is a multi step process; for instance a vampire bites their victim who then transitions after drinking a vampire’s blood, it is not certain that a person meets the definition of death. In True Blood vampires must spend some time underground as part of transitioning, but again it’s not certain if they are dead and buried or just buried. Further complicating this scenario is the fact that they can suffer “True Death” if dispatched for example by a stake through the heart. In Twilight transition involves vampires’ hearts stopping, but brain function continuing (this might explain the terrible acting).

Although a vampire can be dispatched with a stake through their heart, in some narratives vampires hearts have ceased to function, in others they are in stasis waiting to beat again, whilst in others they have normal heart function. Therefore a vampire in any of these states with a fully functioning brain may or may not be alive under the definition in the Act.

Paradoxically for the undead in the Twilight saga and Blade trilogy vampires father children. Importantly in the Twilight saga vampires are considered to be ‘frozen in time’ which is why they do not age and do not die; however sperm produced by male vampires is viable.

Count Dracula owned a large castle and vast hoards of gold; Edward Cullen was independently wealthy due to his birth parents businesses; similarly his adoptive father was wealthy after centuries of medical practice. Vampires would require different estate planning than the living, as only when they are dispatched would their estate need to be distributed to their heirs.

In an earlier post we discussed the making of a Will on an iPhone by Karter Yu in September 2011. The Supreme Court of Queensland granted probate of Karter’s Will  to his brother, Jason. Although the Court found that the will satisfied the conditions necessary under the Succession Act. Jason required the assistance of the Court to determine the true construction of Karter’s Will.

Karter’s Will stated that after all debts have been paid:

 “ I would like the remainder of my cash equally apportioned between five parties: Jason Yu, Kinson Yu, Steffen Aufsatz and Dominic Clarke.”

The Court was asked to consider what Karter had intended the term “cash” to include. At the date of his death Karter had over $368,000 in assets that included bank accounts, superannuation, life insurance policies, and employment entitlements.

Owing to the nature of the construction of the Will the Court had to determine whether the superannuation, life insurance policy and employment entitlements should be included as “cash”, which would then be divided between the beneficiaries that Karter named.

The Court was not satisfied that Karter intended his superannuation, life insurance, or employment benefits to be included in the term “cash”. The Court was of the belief that as a young man in his twenties Karter was unlikely to have been aware that when he died there could be an insurance payout of $259,000 paid to his estate as a death benefit. If Kater was aware of these assets he would have referred to them specifically in his Will.

The Court’s decision limited the asset pool to be distributed to the named beneficiaries to around $62,000 the amount held in Karter’s bank accounts.The Court ordered that Jason’s costs for the application as executor of the Will be paid out of the estate.

It is uncommon that Courts admit electronic informal Wills to Probate. However it is not uncommon that informal Wills are admitted to probate, but these can cause delay and increased legal costs for the estate.

Additional costs can be avoided by preparing a Will that clearly demonstrates the Will maker’s intention. This doesn’t necessarily require instructing a solicitor to prepare a document however the language of the document must be clear. Importantly it is better to have a document that clearly outlines your intentions to provide some comfort to your loved ones at a difficult time in their lives.

John Elroy Sanford, an American comedian and actor known by his stage name Redd Foxx died in October 1991 aged 68. Redd died intestate owing $3.6 million in taxes

Redd left home around the age of 13 to become a performer. After struggling for many years Redd found fame as a stand up comedian who honed his act in black nightclubs during the 1940s and 1950s.

In the mid-1950s, he began recording his routines. He became known as “King of the party records” selling more than 20 million albums. In the 1960s, he was a top Las Vegas nightclub act making his first television appearance in 1964.

In the 1970’s the British television show Steptoe & Son was remade in the United States as Sanford & Son. Redd played Fred Sanford a grumpy junk dealer in Watts California.Not only was the show successful with television audiences being one of the top ten highest-rated series on American television Sandford and Son was groundbreaking as it featured an African American family. After the show was cancelled Redd enjoyed a less successful television career while still headlining Las Vegas nightclubs.

When he died Redd lived in Las Vegas, as he died without a Will Foxx’s daughter, Debraca Foxx, was appointed as the administrator of his estate. Redd had been married four times and his fourth wife and widow, Ka Ho Foxx, accused Debraca of failing to provide accounts of revenue received in royalties, residuals and licensing deals since her father’s death. Ka Ho believed that Debracca had been taking money for herself that should have gone toward paying down the estates tax debt.

Due to this family infighting, in 2006 the Nevada probate court appointed the public administrator to administer the estate. The administrator stated that his goal was to

“settle Redd’s estate pay all taxes owed and get money for his heirs”

Interestingly the estates major asset, are the rights to Redd’s life story. Nevada allows for the marketing of someone’s “right of publicity,” defined in the law as the ability to use a “name, voice, signature, photograph or likeness” of anyone for commercial purposes.

However, while the estate owns the right to profit from Foxx’s name, image and likeness, it may not own the rights for a “life story”.  It has also been reported that Ka Ho objects to the marketing of Redd’s life story to anyone but her and plans to go to court to stop this from happening.

If Redd had prepared a Will he may have avoided this problem. He could have appointed an executor, (this might have stopped the infighting between his only heirs) and provided instructions regarding his life story including assigning it’s rights.

Remember a Will is a planning document that allows you to decide how your assets will be distributed, you may not want to make one but if you don’t it is your family, friends and loved ones that will be making these decisions with little in the way of guidance from you.

We have discussed the problems that can be faced by people who use a DIY approach to draft a Will believing that it is a cheap and easy solution, compared to the price that you pay when getting a lawyer to draft a Will. In a recent case the beneficiaries of a Will drafted by a professional in the 1930’s sought the guidance of the Court regarding the construction of a term.

John Morrissey died in July 1948. John’s grand children Nola and John are the trustees under his last will of October 1938. Nola and John’s father Thomas had another child, Imelda, who died in October 1987.

John’s will gave Thomas a life interest in his real estate; after his death it was to be divided among Thomas’s “issue children” or grand children in equal shares as Tenants in Common.

Nola aged 77, and John, aged 85 had a difference of opinion as the meaning of the words “issue children”. Is the gift shared equally by Nola & John or is it divided in three and shared by them and the children of Imelda equally.

Issue with relation to a Will refers to a person’s children or other lineal descendants who are part of the direct bloodline of the Will maker – such as grandchildren and great-grandchildren. In this instance the Court had to determine whether John meant issue to include descendants beyond his  immediate children. While a child or children are alive, issue refers only to them, but if they are deceased then it will apply to the next generation unless there is language in the document that shows it specifically does not apply to them.

When construing the meaning of a Will the Court must look at the plain meaning of the words and sentences as part of the whole document, in order to give effect, if possible, to the intention of the Will maker.

The Court believed that the words “issue children” used in relation to Thomas exhibits an intention to narrow the usual meaning of the term “issue”, to his children only. The Court was unable to conclude that the Will was sufficiently clear that the words “or grand-children” were mistakenly omitted from parts of the Will. It may be that the reference was included as part of an attempt to benefit  Thomas’s grandchildren in certain circumstances but any attempt to do this was undermined by inadequate drafting.

As a result John’s real estate is to be shared equally by  Nola and John as tenants in common. Costs of the dispute were paid out of the Estate.

Administration of your estate may become a complicated process if your Will is poorly drafted. It is a false economy to believe that a Will kit is suitable in every situation as any saving that you might believe you are making may be multiplied many hundreds of times if your executor or beneficiaries are unsure of your intentions.

 

People applying for income protection or life insurance usually answer a short series of questions that provide a basic medical history. Questions usually seek information about smoking status, alcohol consumption and frequency of exercise. Insurance premiums increase depending upon the risk factors that are calculated based upon actuarial tables.

If you are a healthy 50-year-old man you have a 16% chance of developing type-2 diabetes in the next 20 years. If you are obese & smoke this figure rises to 23%.

Modelling suggests that “healthy” diabetics between the ages of 50-70 years would expect to live about six years less than non-diabetics. Obese smoking diabetics are expected to live ten years less than non-diabetics.

In many cases the information provided is fairly general in nature and lacks the depth of a full medical history. With the advent of wearable technology insurance companies have the ability to access a greater variety of information to assist in the pricing of insurance cover, by more effectively calculating liabilities and accurately managing risk.

Apps are available that take into account blood pressure, sleep patterns, number of steps walked, as well as age, gender and height to calculate a countdown clock, showing the number of years, months and days they have left to live. The countdown clock is supposed to “motivate yourself to be healthier.”Whilst technology that adopts predictive analysis to anticipate the effect of pre-existing conditions on an individual to calculate mortality patterns is currently available.

This technology allows insurers  to incorporate the impact of diabetes, heart disease, cancer, stroke, respiratory, digestive/renal and neurological disorders into their existing tables in order to calculate average life expectancy.

The more accurately insurers can predict when you are likely to die enables them to compensate for potential risk. In layman’s terms insurance companies can increase premiums or not insure people who pose a greater risk whilst continuing to insure those with lower risks of disease and death.

Without being too morbid the chances that you will die are 100%. The unknown quality is the time that you are going to die. In September 2015, a supercomputer installed at Boston’s Beth Israel Deaconess Medical Center claimed to predict the likelihood of a patient’s death with more than 96% accuracy.

In The Seventh Seal a Knight returning from the crusades plays chess with Death, the Knight creates a distraction by knocking the pieces from the board allowing a family to slip away, Death states:

“Nothing escapes me. No one escapes me.”

Death places the pieces back on the board; wins the game on the next move announcing:

“When next we meet, the hour will strike for you and your friends”

In making plans for your future you should have contingencies in place for illness and death so that your loved ones have less things to worry about during these difficult times. Life & Income protection insurance, an Advance Care Directive, Power of Attorney, and a Will helps you plan for you and your family’s future. Once you have them in place revisit them regularly to ensure they reflect your wishes. Most importantly take the time to discuss your plans with your loved ones.

We have discussed Mutual Wills in an earlier post. It is where two or more people make Wills and agree that they are not to be revoked by either without notice to the other – the Will is the evidence of the agreement.

Mike & Charmaine had been married for over 25 years, had no children, but shared a love of animals owning dogs, cats, geese, and 120 sheep. In 2011, Mike instructed his lawyer to draft a will leaving $50,000 to ensure the animals were cared for after his death.

It was a provision of this Will that none of the animals are to be put down or slaughtered; his dogs were not to be separated, and the geese were to be donated to a wildlife reserve.

The balance of the estate was to be distributed to the World Wildlife Fund, Red Cross, World Vision and Salvation Army.

Mike Smith was diagnosed with cancer at the end of 2012 and given a year to live. His wife Charmaine suffered from a debilitating lung condition most of her life.

Tricia Phillips, met Mike and Charmaine in 2001, they developed a close friendship and she would house-sit the couples Ashburton property while they travelled overseas, taking time off work to care for the animals. In 2013 due to their declining health the couple bought a property near Christchurch to be closer to medical treatment.

Tricia was asked by Mike and Charmaine to move into a separate flat on their Ashburton property, to care for the animals and the couple as their health deteriorated. Charmaine died in May 2014.

Shortly after Charmaine’s death Mike met Corrine Hanna. In February 2015 Mike bought a property, which Corrine’s parents moved into. The following month Mike and Corrine were married.

Tricia claimed that Mike promised to leave her the Ashburton property and its contents as a home for her, and the pets.

In April, 2015 Mike met with his lawyer and had a new Will drafted, his new Will named Corrine as the sole beneficiary; family and friends would inherit his estate if Corrine predeceased him and It made no mention of animals or charities. Six weeks after signing the new will Mike died, aged 53.

After Mike’s funeral Corrine told Tricia that under the terms of the will, the Ashburton property would only have gone to her if Corrine had died first. Corrine and Mike’s father Ross were appointed as executors .The estate was valued at $2.33m

Tricia claims the executors, organised for the sheep and other animals to be sent to various new homes. The Ashburton property was being leased and it’s contents cleared.The estate does not accept that there was any testamentary promises made to Tricia,  evicted her from the Christchurch property and put it up for Sale.

Tricia has instructed lawyers to see if she has grounds to contest the will. Tricia isn’t motivated by monetary gain she is motivated by Charmaine’s memory. Tricia claims Charmaine told her that their fortune was to go to charity and animal organisations,

“She trusted Mike to do what they had decided. She would be absolutely horrified and devastated.”

Charmaine & Mike could have made Mutual Wills, in this way Charmaine’s wishes could be met. However there is no evidence that Mike did not have the capacity to make his final Will and he had every right to leave his estate the way that he chose. It’s important to not only make a Will but to discuss your testamentary wishes with loved ones so that they can be carried out.