Do you want fries with that?McDonald’s Napkin Holographic Will

Philip Langan believing that he was having a heart attack while eating at McDonald’s in Yorkton Saskatchewan quickly wrote

Ron Langan

Dennis Langan

Sharon Langan

Landry Langan

Philip W. Langan

Marann Langan (Gust)

Dallas Langan

Split my property evenly, Dad Philip Langan”

He later gave the note to his daughter Sharon who wasn’t with him when he wrote it and asked her to take care of it.

Phillip died on December 30, 2015; in February 2016, Sharon and her brother Ronald produced the napkin they say was their father’s will.

Maryann submitted to the Court of Queen’s Bench Saskatchewan that Sharon believed Philip wrote on the napkin sometime after their brother Earl died in 2006, but before their brother, Landry died in August 2015.

Maryann submitted that Philip told her one month before he died that he didn’t plan to leave a will because

“he wanted us, kids, to fight like he had to.”

Maryann was sceptical the napkin was written by Philip because she had no other examples to verify his handwriting.

Ronald submitted that on the day his father, Philip, wrote out his intentions on the napkin he was fully aware of what he was doing including his reason for not to include my brother, Earl Langan, in the will.

“we’re not going to include Earl as he had passed away.”

Philip’s son Philip submitted he was with his father when he gave the handwritten document to Sharon telling her

“This is my will and I want you to keep this in case something happens to me.”

In Saskatchewan, handwritten (holographic) wills and  “formal” wills are both recognized as valid. Section 8 of the Wills Act provides

A holograph will, wholly in the handwriting of and signed by the testator may be made without any further formality or any requirement as to the presence of or attestation or signature by a witness.

In 1948, Cecil Harris scratched the following note on the fender of a tractor as he lay dying, pinned underneath.

“In case I die in this mess I leave all to the wife. Cecil Geo Harris,”

It was found to be a valid will.

However as holograph wills are often so informally drafted the court must ascertain whether the author of the document had the requisite testamentary intent.

 The Court believed there was enough evidence that Philip intended to create a will when he wrote the note. As Philip thought he was having a heart attack — a time when one’s mind would reasonably turn to the question of estate planning, especially “in the absence of an existing will

Philip immediately delivered the document to his daughter, Sharon, asking and that she keep the document in case something happened to him, verified by Sharon and Philip shows a clear testamentary intention.

Although the family has asked the court to determine whether Philips handwritten document is a valid will, they have agreed that regardless of the court’s decision, Earl’s children, just like Landry’s children, will receive a portion of the estate as though Earl had been named in the document; if the document is not a valid will and the estate is distributed as an intestacy, Earl’s children will be entitled to their father’s one-eighth share of the estate since under The Intestate Succession Act,

Retracting a Renunciation of Probate

The Supreme Court of NSW generally prefers to have estates administered by somebody who is present in the jurisdiction, who is able to personally attend to their duties within the jurisdiction and, by reason of their presence in the jurisdiction, is amenable to court orders designed to enforce obligations attending a grant of probate or administration.

Ron Tee Lim died on 1 February 2018 leaving assets in New South Wales, with a gross value of about $1.783 million and a net value of about $1.773 million. Ron’s Will, dated 1 May 1986 left the whole of his estate

“to my … brother and sister in equal shares or to the survivor of them”.

Ron had named his brother Colin executor; Colin predeceased him; his sister Kaye, (an overseas resident) had renounced Probate in March 2019;

”renouncing all rights to probate of the Will to be made or given to me.”

In July 2019 Seema Virinder Singh made an uncontested application for Letters of Administration with the Will of Annexed (”letters of administration cum testamento annexo” or “c.t.a.”.) in the Probate Registry.

On 7 August 2019, an Acting Deputy Registrar in Probate raised a number of requisitions, including that

“[Ms Singh] has no beneficial interest in the estate and the Court will not make a grant to such a person …”

in the absence of special circumstances being shown to exist, the application would be rejected.

Referring to s 72 of the Probate and Administration Act 1898 (NSW) (”the Act”) the Acting Deputy Registrar suggested that the only proper way in which Kaye could withdraw

”[t]he executor/sole beneficiary will have to file an affidavit retracting [her] renunciation”.

Section 72 of the Act provides that the executor of the estate or any spouse or next of kin of the deceased applying for a grant of probate or letters of administration who lives overseas may appoint an attorney within the jurisdiction pursuant to a Power of Attorney and authorise the attorney to act on behalf of the executor or administrator who is not resident of Australia to apply for a grant of probate or letter of administration.

However, an application by way of an Attorney must be on such terms and conditions as the Court consider fit. 

The Court granted Kaye’s notice of motion seeking leave to retract the renunciation so that as executrix, or some other person within the jurisdiction, appointed under her power of attorney to act for her, and if so that administration may be granted to such attorney, on behalf of Kaye on such terms and conditions as the Court thinks fit.

Testamentary Capacity & Freedom

Milan Zlatevski died in May 2015 aged 85 leaving a will made on 15 October 2013 (“the 2013 Will”) appointed his daughter Nada Geroksa executor and sole beneficiary of his estate.

Milan’s estate consisted of a home in Rockdale (“the Rockdale property”) worth approximately $1.2 million, and cash in a Commonwealth Bank account in the amount of $23,146.55; no liabilities we’re disclosed in Nada’s executor affidavit, therefore the total gross value of the estate was $1,223,146.55.

Nada sought probate of the 2013 Will. Milan’s son, Tony (Tode) Zlatevski, challenged the Will claiming that Milan lacked testamentary capacity at the time the 2013 will was made.

Tony also claimed that the 2013 will was vitiated by a false representation made by Nada that Milan had bought a house for Tony.

The Court had to determine whether Milan had testamentary capacity at the time he made the 2013 will; and whether the 2013 will was vitiated by a false representation made by Nada and relied on by Milan.

As Milan had not made another will if the 2013 document is found not to be valid, he will have died intestate. In that event, Tony sought an order that he be granted letters of administration.

The Court was satisfied that Milan had testamentary capacity at the time he made the 2013 Will; he had knowledge of the nature and extent of the estate (its only substantial asset was the Rockdale property); and was able to comprehend, appreciate and weigh up the competing claims bearing in mind the importance of a testator’s power to freely dispose of their assets and of respecting their choices.

“a testator (who) has disinherited a child for reasons that may be unfair or shock ordinary members of the community, does not make a will invalid.”

Tony submitted that the 2013 will was vitiated by a misrepresentation made by Nada that Milan had provided Tony with a house; this representation was false and was relied on by Milan when executing the 2013 will.

The making of a false representation to a testator which has a direct effect on the making of a will, such as by inducing a testator to make their will in a particular way, maybe equivalent to positive fraud and may render the 2013 will invalid.

The Court was satisfied that Nada’s representation

”he bought the Kogarah house for Tony”

was based on Milan’s own longstanding and repeated belief, and there was no basis for the Court to infer that it was made by Nada with a design to raise a prejudice in Milan’s mind against Tony for her benefit.

The Court ordered that Tony pay Nada’s costs of the proceedings – although exceptions to the general rule that costs follow the event have been recognised in probate litigation, no submissions were made to the Court that this was a case in which the exceptions apply.

Grundy Estate Settlement

Reg Grundy died in Bermuda (his place of domicile) on 6 May 2016, aged 93 years, leaving a will dated 21 January 2011 and sufficient property in NSW to admit the will into probate.

In 2015, Reg’s wealth was estimated as being $809 million, a figure largely stemming from the $320 million sale of Grundy’s company to Pearson Television in 1995.

Joy Chambers-Grundy is Reg’s widow, executor and, having survived him by 30 days, takes “the remainder” (the residue) of his estate after the provision of a lifetime annuity of $US250000 granted in favour of his daughter Viola La Valette (she changed her name from Robyn by deed poll in 2000), and payment of his just debts, funeral and testamentary expenses.

Viola was estranged from Reg which he referred to in his autobiography

“The loss of my daughter is the greatest heartbreak in my life. I have lost a daughter and gained a wife who is the light of my life. If only the three of us could have lived happily ever after.”

The limited provision made for his daughter in his will may be due to his disappointment with Viola’s treatment of him and his belief that she was unreliable in her handling of property and in need of protection.

In April 2017 Viola applied for a grant of family provision relief in respect of the estate, or notional estate, of the deceased.

A Family Provision Claim is usually made in a jurisdiction where the deceased lived at the date of their death, owned assets in that jurisdiction or both.

In most Jurisdictions, legislation governs who can bring a claim against a persons estate, generally speaking, this is

• The deceased’s spouse,

• a person living in a de facto relationship with the deceased at the time of death,

• a person living in a close personal relationship (such as a volunteer carer) with the deceased when the deceased died;

• The deceased’s child;

• The deceased’s former spouse;

A person who was:

• Dependent (wholly or partly) on the deceased at a particular time (this may include a former de-facto spouse, parent, sibling, or step-child; and

• A grandchild of the deceased, or

• a member of the household of the deceased;

who believe they have been left without adequate provision for the proper maintenance, education or advancement in life.

Adequate provision is unique and therefore difficult to define, the Court takes a number of factors into account:

• the applicant’s financial position,

• relationship with the deceased,

• the size of the estate and

• the deceased’s relationship with other persons who are eligible to make a claim.

Joy was reticent to provide Viola with a copy of her father’s will claiming that Reg had died without assets. Correspondence from the estates’ solicitors stated:

” Dr Grundy died without any assets in his sole name so that his estate owned no assets upon death. Therefore, Dr Grundy‘s Last Will will not be submitted for probate in the Supreme Court of Bermuda.”

Further correspondence in reply to a request from Viola’s solicitor stated:

a) Dr Grundy died domiciled in Bermuda and left no estate whether in Bermuda or elsewhere;

b) the law of New South Wales is irrelevant and the Courts of New South Wales have no jurisdiction;

c) we do not now have, and nor will we be seeking, any instructions to accept service of any misconceived proceedings that your client should care to issue in New South Wales.

Viola’s solicitor noted the Bermuda lawyers’ statement and invited them to address the question of a notional estate, both generally and by specific reference to particular items of property located in New South Wales, which they contend constitutes the notional estate.

A family provision claimant usually makes a claim for provision out of the actual estate of the deceased: this includes all property held solely in the name of the deceased when they died. The notional estate of the deceased includes property which is not directly owned by the deceased at the time of their death or has already been distributed- once designated as part of a notional estate, the property is dealt with for practical purposes as if it were property in the actual estate.

Notional estate orders are issued by the Court with the intention to make available for family provision orders assets that are no longer part of the estate of a deceased person as they have been distributed either before or after the deceased’s death (either with or without the intention of defeating applications for family provision).

Notional estate provisions brought to the forefront the distinction of ‘estate versus notional estate’ that had been implicit in the decisions using the legislation prior to the introduction of the Family Provision Act 1982(NSW).

Joy submitted that if the case were hashed out in open court, it would cause embarrassment, resentment and prurient media attention, which her husband never wanted and specifically avoided. Similarly, the exact size of the estate shouldn’t be of relevance to the case.

However, the court disagreed and gave Viola leave to determine the wealth of her father included granting access to her father’s will and NSW properties for the purposes of valuing them.

The court also ordered the news organisation that published a rich list estimating Reg’s wealth at $809 million to release the documents that the calculation was based on to Viola. Joy disputes this figure claiming the estate had a net value of “not less than about $214 million”

It was reported that Joy and Viola reached a confidential settlement over the funds, bringing an end to the matter in the New South Wales Supreme Court

Aretha Franklin’s estate has a new Administrator

Aretha Franklin described as The Queen of Soul, won 18 Grammy Awards and had more than 100 singles on the Billboard charts; at the time of her death, it was reported that Aretha had not left a will or established a trust. Aretha’s estate could be worth millions of dollars; as it contains not just her music catalogue but also clothing, memorabilia and rights to her likeness.

The estate is currently in negotiations for a TV series and movie about Aretha’s life. The Internal Revenue Service is currently auditing Aretha’s tax returns after claiming more than $6 million in taxes Detroit renamed a city-owned outdoor music amphitheatre after Aretha. At the unveiling the Mayor claimed “This daughter of Detroit has a permanent memorial,

Under Michigan law, the assets of an unmarried person who dies without a will are divided equally among their children. Aretha had been married and divorced twice.

Following her death, her four sons filed a document listing themselves as interested parties in her estate stating that Aretha “…died intestate and after exercising reasonable diligence, I am unaware of any unrevoked testamentary instrument relating to property located in this state as defined.” Aretha’s niece Sabrina Owens asked the court to appoint her, (and Aretha’s Sons agreed, that Sabrina should act) as personal representative of the estate.

Earlier this week Judge Jennifer Callaghan of the Oakland County Probate Court chose Reginald M. Turner, president-elect of the American Bar Association, as temporary caretaker of Aretha Franklin’s disputed estate

Turner responsibilities will include completing negotiations for a television series starting in May and a motion picture in October.

Turner a longtime friend of Aretha replaces Sabrina Owens, who resigned as executor, citing the disagreements among the family members. Mr. Turner was recommended by lawyers for Kecalf Franklin, 49, the singer’s youngest son.

Sabrina had a close relationship with Aretha, particularly toward the end of her life — she accompanied Aretha to doctor’s appointments and, helped arrange her memorial service.

Sabrina accepted the role of executor “under two important conditions”: that “no fractured relationships” develop in the family, and that disagreements did not end up in court — “both of which,” she wrote, “have occurred.”

Sabrina discovered two handwritten wills from 2010; one states that a previous will from decades earlier is “no good” the other is 11 pages long and is signed by a notary.

Sabrina discovered a further will, dated March 2014, located in a notebook found under living room cushions; although difficult to read the document sets aside various assets for family members, including her sons and grandchildren, in this document, Aretha states she wants her son Kecalf Franklin, to serve as personal representative of the estate.

However, the wills appeared to be disorganized and look more like rough drafts; words are crossed out and the documents contain notes in the margins and arrows.

David Bennett, who was Aretha’s lawyer for more than 40 years, sought clarification that the Wills were legal under Michigan law. A statement from the estate said two sons object to the wills. Michigan law gives great weight to the wishes if they are a clear and convincing expression of the deceased’s wishes.

Arethas sons are still in continuing Court action over who controls the rights to her image and music and how her assets should be distributed.

It is not uncommon for people to die intestate, as I have posted Prince, Billie Holliday, and Kurt Cobain died intestate, however, given Aretha’s legacy, business acumen, and long illness it is surprising that she didn’t make better arrangements for the control of her legacy.

Beneficiaries CGT main residence exemption has been modified

Capital Gains Tax (CGT) applies to the capital gain made on the disposal of any asset, with a number of specific exemptions, the most significant one being the family home. If you leave a property to family or friends, and you’re entitled to the main residence exemption, it will still apply. However, if you’re not entitled to the main residence exemption – or you’re entitled to only a partial exemption – CGT will apply.

The CGT main residence exemption means that if you are the beneficiary of a residential property under a Will (depending on the use of the property by both you and the deceased) you may not have to pay CGT on any capital gain made after you sell or dispose of the inherited property.

As the beneficiary of Australian residential property from a foreign resident of six years or less at the time of their death, the main residence exemption is available to the beneficiary; except where it is inherited by a foreign resident (any CGT was accounted for in the deceased’s “date of death” tax return); or tax-advantaged entity such as a church or charity, the trustee of a complying super fund, approved deposit fund or pooled super trust.

The main residence exemption on CGT for foreign residents for tax purposes has recently been amended; from the deceased’s date of death Australian residents will continue to be able to accrue an entitlement to a concession, foreign residents will be unable to do so.

 The CGT main residence exemption can only be claimed by Foreign residents for tax purposes who held property prior to 7:30pm (AEST) on 9 May 2017 for disposals that meet the following requirements:

  • you, your spouse, or your child under 18, had a terminal medical condition
  • your spouse, or your child under 18, died
  • the CGT event involved the distribution of assets between you and your spouse as a result of your divorce, separation or similar maintenance agreements.

and occur prior to 30 June 2020.

As a corollary, disposals that happen from 1 July 2020 are no longer entitled to the CGT main residence exemption unless they occur within a continuous period of six years of the individual becoming a foreign resident for tax purposes

Similarly, for property acquired following 7:29pm (AEST) 9 May 2017 the CGT main residence exemption no longer applies to disposals from that date unless the listed life events occur within a continuous period of six years of the individual becoming a foreign resident for tax purposes.

Therefore when the foreign resident beneficiary disposes of the property, they may receive a partial concession on CGT based on the testator’s cost base up until the date of their death, however, no concession applies from the testator’s date of death.

Where a foreign resident is a beneficiary under a foreign resident’s Will; the beneficiary and trustee of the estate will not be entitled to the main residence exemption accrued by the deceased.

Any beneficiary who is not entitled to the exemption will be taxed on the full CGT amount; the cost base is calculated from the date of purchase in determining CGT for a property purchased by the deceased after 20 September 1985.

If a beneficiary inherits a dwelling and later sells it they may be exempt from CGT depending on the date the deceased acquired the property, when they died, if the property has been used to produce income (such as rent) and whether the deceased was an Australian resident at the time of death.

If a beneficiary is not exempt, or only partly exempt,  the cost base of the dwelling must be calculated to work out the capital gain. The cost base may be the value of the dwelling when the deceased acquired it or the value when they died, depending on where the beneficiary lives. The same exemptions apply if a CGT event happens to the trustee of a deceased estate.

If you inherit an Australian residential property from a deceased person who had been a foreign resident for more than six years at the time of their death, any main residence exemption that the deceased person may have accrued for that dwelling is not available to you as the beneficiary. This means you may have to pay CGT when you sell or dispose of the property.

If you inherit an Australian residential property and you have been a foreign resident for more than six years when you sell or dispose of the property, you can’t claim the main residence exemption for your ownership period.

What does this mean?

Foreign residents who acquired their main residence before 9 May 2017 and do not satisfy the new criteria for an exemption,have until 30 June 2020 to dispose of their main residence and apply the full main residence exemption will be liable for the full amount of CGT for any capital gain made.

Succession to Property – Conflict of Laws

Distribution of property of an intestate estate at common law depends upon whether that property is classified as a movable or an immovable asset. Succession to movable property is determined by where the deceased lived (lex domicilii); succession to immovable property is determined by its location (lex situs) – the transfer of title to the property is dependent upon and varies with the location of the property, where there is a conflict of laws.

The enactment of the Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions, (adopted in New South Wales in 1986) altered the old common law choice of law rule concerning the validity of a will. But it did not affect the more general rule that succession to immovable property is determined by the lex situs.

A recent matter is unusual as the deceased died more than a century ago and all of his descendants were, and are, foreign residents. These proceedings concern proceeds from the sale of the share of a property acquired between 1865 and 1874 in New South Wales owned by the deceased and others as tenants in common that was sold in 2011.

John Meyerfeld was born in 1839 in Treysa, in the Electorate of Hesse then a member state of the German Confederation. John emigrated to the then Colony of New South Wales in 1865; becoming naturalised in 1874.

John married Jenny Lippmann in 1886; they had a son, Kurt and two daughters, Alice and Edith. Around 1882 he returned to Europe and died in Berlin in 1907.

In 1889 John made a will, (”the Will”) leaving provision for his wife and children. The Will was modified by two codicils made in October and November 1896. John named his wife, his brother Julius, and Hermann Bamberg of Berlin executors.

The Will and codicils complied with German law. However, in 1907, New South Wales law required that a formally valid Will had to be witnessed by two witnesses, the will did not meet this requirement it was therefore not valid under New South Wales law.

In New South Wales the Succession Act expressly provides that where succession takes place according to New South Wales law, the applicable law is that which prevailed as at the date of the decedent’s death.

The Succession Act 2006 (”the Act”) empowers the New South Wales Supreme Court to grant probate of a document created following the commencement of the Act that reflects the testamentary intentions of its maker but not the formal requirements. However under New South Wales law in 1907, on intestacy his widow, Jenny received one-third of the estate with the remaining two-thirds being divided among his surviving three children in equal shares.

John’s son Kurt died unmarried with no children in 1912 at the age of 29; it appears he died intestate. In December 1912 Hermann obtained probate of the Will and two codicils in England. Under New South Wales law in 1912, Kurts share of his father’s estate passed on intestacy to his mother, Jenny. Leaving her with five-ninths of the deceased’s share; Alice and Edith, holding the other four-ninths.

Jenny died in 1925 in Berlin. Her last will was made in compliance with German law but didn’t meet the formal requirements under New South Wales law. Accordingly, under the then New South Wales intestacy provisions, Jenny’s interest in John’s share of the property passed to Alice and Edith.

Edith Meyerfeld was born in March 1894, had two daughters, Ellen and Alice Mosenthal. She married Albert Julius Mosenthal in Germany. Edith died in February 1973 her last will, made in 1967 in England where the rules would have complied with the law of New South Wales leaving:

”….all residue of my estate whatsoever and wheresoever” to Ellen and Alice.

Alice married and had four children. Alice died intestate in November 2001 her estate passed to her four children in equal shares under New South Wales law.

Ellen died in London in June 2013. In January 2014 probate was granted on her will in England to her children Oliver and Clare as executors of the Will. The Supreme Court of NSW accepted that as probate was granted to Ellen’s Will it complied with English formal requirements, as a corollary it would also have complied with New South Wales formal requirements.
In September 2014 the New South Wales Trustee & Guardian( “the Trustee”) obtained a grant of letters of administration of John’s unadministered estate in New South Wales and published a notice of its intention to distribute the estate. Following genealogical searches, the Trustee was in contact with some of the Johns descendants and sought the Court’s direction to distribute the fund to those entitled to it.

The application before the Court is a Re Benjamin application; deriving its name from the case of Re: Benjamin; Neville v Benjamin and is an order made by the court for the distribution of assets on death when it is uncertain whether a beneficiary is alive.

John, Jenny, Ellen and Alice and two of their three children had died before the property was sold. At the time of each of those deaths the property was a share in a piece of land, it’s sale, the effect of which was to convert the property into a sum of money held by the trustees for the benefit of the owner or owners.

Based on this evidence, the Trustee sought the Court’s direction authorising it to distribute the proceeds of the New South Wales property as follows:

(a) a one-half share to the executors of the estate of the son of Alice Meyerfeld ;
(b) a one-quarter share to the executors of the estate of the older daughter of Edith Meyerfeld;
(c) a one-sixteenth share to each the heirs of the younger daughter of Edith Meyerfeld.

Money substituted for an immovable by the lex situs is subject to the same rights as the immovable, but, when an immovable is sold under a disposition made by the owner or in consequence of a dealing with it by the owner, the rights to which it was subject as an immovable do not affect its proceeds unless kept alive against them by the will of parties or by the lex situs.

Applying this principle following the sale of the property, the Court held the sale was pursuant to Section 66G(1) of the Conveyancing Act 1919 (NSW) and the proceeds of the sale met the description of “monies substituted for an immovable by the lex situs” and should be treated as immovable and succession to those proceeds is governed by the law of New South Wales.

Bona Vacantia, Benevolence and the Duchy of Cornwall

Prince Charles as Duke of Cornwall is the largest private landowner in England. The Duchy of Cornwall, run as a private estate consists of 135,000 acres, spread across 23 counties; the land and its assets ( which include The Oval cricket ground in London) were worth over £1billion in the last financial year. The Duchy is not a corporation and therefore not subject to Corporation tax

The Duchy of Cornwall was created in 1337 by Edward III, as a personal endowment for his eldest son and presumptive heir Edward of Woodstock (often referred to as the Black Prince). In the ensuing seven centuries, its lands and revenues have belonged to the male heir to the throne.

The Duke of Cornwall is the beneficiary of a number of the Duchy’s ancient provisions; he

• owns 60% of the Cornish foreshore and the bed (”fundus”) of navigable rivers.

• has the right of wreck to ships wrecked in Cornish waters that remain unclaimed at the end of one year.

• has the right to ”royal fish” deemed ”uniquely suited for the monarch’s use” including whale, sturgeon and porpoises.

Similarly, when a resident of the Duchy dies intestate with no surviving relatives the intestate estate passes bona vacantia to the Duchy of Cornwall. Bona vacantia is the Crown’s statutory right to the property of an intestate. If the legislated order for relatives has been exhausted then the State is entitled to the estate of the intestate.

Prince Charles himself does not keep the money, instead after retaining some in reserve in case of any future claims the balance is donated to the Duke of Cornwall’s Benevolent Fund, which has donated in excess of £850,000 over the past seven years for the benefit of local communities in the South West of England.

The Crown is legally exempt from taxes; the Queen does not pay income taxes, and certain portions of the Prince of Wales’s income (including that from the Duchy of Cornwall) is also exempt. However, the Queen and the Prince of Wales make voluntary payments in lieu of tax (plus income tax on the Duchy’s surplus).

In modern society, the reduction in the size of the average family and the higher incidence of single-child families the possibility of an intestate estate passing to the state or territory is now more likely than it once was.

In most Australian jurisdictions there is a provision that where no statutory relatives are entitled, the Crown may, out of a bona vacantia estate, provide for dependents, whether kindred or not, of the intestate and any other persons for whom the intestate might reasonably have been expected to make provision.

In NSW, for example, the State is entitled to the whole of the intestate estate where the intestate dies leaving no person entitled to the estate. However, a written application can be made to the Crown Solicitor for the waiver of the State’s rights to an intestate estate.

Radiant Child Jean-Michel Basquiat

Jean-Michel Basquiat arguably the most celebrated American painter of the Neo-Expressionist art movement; best known for his primitive style and collaboration with Andy Warhol was born in Brooklyn, in December 1960; the second of four children of Matilde a Puerto Rican and Gérard a Haitian-American. His brother Max died before Jean-Michel was born, his two sisters: Lisane, and Jeaine, were born in 1964 and 1967.

Jean-Michel began drawing at an early age on sheets of paper Gérard brought home from the office. Matilde strongly encouraged to pursue artistic talents taking him to art museums in New York City.

At age 8, Jean-Michel was hit by a car, suffering various internal injuries, along with a broken arm. While hospitalised Jean-Michel received a copy of Gray’s Anatomy from Matilde making a lasting impression and influencing his later work.

His parents eventually separated, and he and his sisters lived with their father in Puerto Rico between 1974 to 1976. Matilde was institutionalised when Jean-Michel was 13 and was frequently hospitalized for the rest of her life.

As a teenager due to his mother’s illness and turbulence at home Jean-Michel ran away. After sleeping rough he was arrested and returned to Gérard’s care within a week.

”l had very few friends. There was nobody I could trust. I left home when I was fifteen. I lived in Washington Square Park.”

At 17 Jean-Michel dropped out of High School to attend an alternative high school in Manhattan; furious Gérard kicked him out of home. Jean-Michel stayed with friends in Brooklyn supporting himself selling T-shirts and homemade postcards. He first attracted attention for his graffiti under the name “SAMO” (for “same old shit”) in New York City.

Lacking formal training, Jean-Michel created highly expressionistic work that mixed graffiti with Abstract Expressionism; addressing his personal angst through stylised self-portraits alluding to African American cultural icons.

Around 1980 a group of artists including Keith Haring and Kenny Scharf held the Times Square Show in an abandoned massage parlour. A wall covered with the spray paint and brushwork of SAMO received favourable notices in the press and Jean-Michels started selling his paintings out of his apartment.

In 1981, Artforum published an article “The Radiant Child” by critic René Ricard cementing his breakthrough as an artist, along with his participation in the exhibition “New York / New Wave” in the P.S.1. 

He collaborated with David Bowie and Andy Warhol resulting in a combined show of their work in the mid-’80s. Jean-Michel died intestate aged 27 of a heroin overdose in August 1988 in New York City.

Gérard was named administrator of the estate; as Jean-Michel had no will, his parents split the estate. Matilde died in 2009 although she and Gérard were separated for more than 30 years, they never got a divorce. After her death, Gérard became the executor of her estate, which predominantly consisted of Jean-Michel’s artwork. Matilda’s estate was initially valued at $5 million, but was later appraised by Sotheby’s at $37 million.

After his son’s death, Gérard resolved Jean Michel’s tax issues and promoted his legacy. Exercising tight control ofbhis son’s copyrights, and stewarding an authentication committee that reviewed art purported to be by Jean- Michel.

Jean-Michel’s friend and fellow artist Kenny Scharf said that Jean-Michel felt that a big part of his unhappiness had to do with his father. Gérard didn’t approve of his lifestyle in SoHo, and shunned the artist’s friends. Ironically Gérard’s posthumous management of the estate is very different from his role as an absentee father who had little to do with Jean-Michel’s career as an artist.

Gerard Basquiat passed away in 2013 with an estate estimated at $45 million largely composed of Jean-Michel’s art. Gérard named Jean-Michel’s sisters administrators of his esreat leaving Lisane a painting of Jean-Michel by Andy Warhol. Gérard left his other daughter Jeanine a portrait of himself that Warhol also painted.

UK High Court & a Testators wishes

Maudlin Bascoe died in August 2015, a few days before her 97th birthday. She had emigrated to the United Kingdom from Jamaica in the 1960s and worked as a seamstress in London. Maudlin had four children and eight grandchildren. Her son Gresford Williams died in October 2004, her daughter Beverley Smith, died in March 2017. Her surviving children are her son Bradford Barnaby and daughter, Patricia Johnson.

In 1988 Maudlin instructed a solicitor Alphonso Wynter to make a new Will replacing a previous one made with another firm of solicitors; this was updated in 1992 with Maudlin leaving pecuniary legacies to members of her family, including £10,000 to Patricia.

In January 2002 Maudlin transferred a share in her home to her son Gresford. In July 2003 Maudlin instructed Alphonso to redraft her will, leaving Gresford £109,000, Bradford £75,000 and Beverley and Patricia, £4,000; later increased to £10,000 each. This will wasn’t executed.

However, it included the following EXPLANATORY NOTE:

“…Beverley and Patricia, have shown very little care and concern for me in my later years and in particular, they have both been rude, unpleasant and in some instances physically violent and abusive towards me and have verbally expressed their lack of care and concern with such statements as ‘you should be placed in a home and dead in there’. I, therefore, have no desire that they should benefit from my estate over and beyond the legacies I have made in this will.”

In April 2005 Alphonso wrote to Maudlin regarding her instructions for a new Will concerned that her “instructions are far from clear and if you require, I will again attempt to take clear instructions from you with a view to updating your will so that it accords with your wishes”.

The differences compared to the draft 2003 will include Bradford replacing Gresford as executor, some alterations in the amounts of and individuals who were to receive pecuniary legacies and the reduction in Patricia’s legacy to £100, Beverley’s to £500, with all of Maudlin’s assets bequeathed to Bradford.

Maudlin’s surviving son Bradford Barnaby is the First Claimant, co-executor and residuary beneficiary of her estate.

Alphonso Wynter, the Second Claimant was Maudlin’s solicitor for nearly 20 years before she died. He is the co-executor and draftsman of her wills from 1988-2005.

Maudlin’s surviving daughter, Patricia Johnson, is the Defendant.

Bradford and Alphonso sought probate of the 2005 Will with the acknowledgment that Maudlin had changed her mind several times in the period before the Will was executed.

Patricia claimed that her mother lacked testamentary capacity, knowledge, and approval of the will’s terms; and that Bradford had improperly caused the 2005 will to be made through undue influence and forgery.

The High Court held that there were strong presumptions in favour of the Wills validity. It was rational and was read to Maudlin who had testamentary capacity at the time. It was properly executed and the evidence of the witnesses could not be impugned.

Similarly, the Court dismissed Patricia’s claim of forgery in the will’s execution as it would have required the collusion of all three independent witnesses.

In upholding the 2005 Will the Court concluded that Patricia’s evidence was contradictory, self-serving and deliberately misleading and had come “nowhere near” establishing a basis for any proper challenge.