Lost Capacity & the Draft Will

There is a growing number of people who have lived for many years following a diagnosis of dementia; others who have an acquired brain injury, in these circumstances they may have no Will or a Will which is out of date.

In recent years there have been significant changes that impact management of assets which are not addressed by a Will made before the loss of capacity.  In some cases, an insurance payout following an accident  (that results in an acquired brain injury) may be distributed through an out of date Will into the injured person’s estate on their death.

Statutory Wills predominantly fall into the following categories “lost capacity” cases – where a person having made a will loses testamentary capacity; “nil capacity” cases – where a person never had testamentary capacity because of mental infirmity from a very young age;”pre-empted capacity” cases – where a person who was still a minor and therefore lacked testamentary capacity was still able to form relationships and express reasonable wishes about property before losing testamentary capacity.

A lost capacity case is one in which the incapacitated person is an adult who has lost capacity as a result of, for example, dementia or a brain injury; they are probably the easiest cases to consider.

The person in this situation is likely to have significant relationships with family and friends, may have discussed their testamentary wishes or had a Will before losing capacity. The previous, outdated will can be used by the court as a yardstick against which to consider the previous testamentary intentions of the person and the proposed will (for example, after the death of a beneficiary).

MP is 90 years old; has long been divorced from her (now deceased) husband with an estate worth an estimated  $100 million. MP had three children by her former husband; one daughter died in tragic circumstances, her son has five children and her daughter has one child.

Throughout her life, MP sought to control her children’s relationship with their father – leading to periods of estrangement. For many years she ostracized her son and his family, although she retained her relationship with her daughter it had some rocky patches. MP favoured her daughter’s son.

On 25 March 2017 MP suffered a fall after which she was admitted to hospital; 6 months later she suffered another fall and was readmitted to hospital. During this time MP had a reconciliation of sorts with her son who became involved with managing her affairs in collaboration with his sister.

In May 2017 MP appointed her daughter as her enduring guardian, after some consideration the daughter accepted the appointment in September 2017. However MP continued to make independent decisions about her financial affairs; in October 2017, she executed a deed by which she pledged to make a gift of $US15 million, by three annual instalments, in favour of Israel’s Tel Aviv University.

Similarly, she engaged several professionals to decide whether (and, if so, in what terms) to make a will; a draft will was produced in May 2017, which MP declined to sign. MP disclaimed the draft in emails she wrote on May 2017, August 2017 and April 2018

In April 2018 MP suffered a stroke which has left her almost totally incapacitated; she lives in a nursing home and has lacked testamentary capacity since the time of her stroke.

MP falls into a more difficult category of lost capacity cases as she did not make a will, despite having testamentary capacity to do so. Therefore the court’s main concern is to ascertain the actual or reasonably likely, subjective intention of the incapacitated person.

MP was a protected person who engaged a professional adviser to prepare a draft will favouring her grandson; this Will was emphatically rejected by her before she was incapacitated by a stroke. The grandson applied for a statutory will for MP in substantially the same terms as the draft will.

The Court noted that MP showed no concern regarding the prospect of dying intestate concluding that in terms of section 22(b) of the Succession Act 2006 it could not properly be satisfied that had MP had testamentary capacity that it is reasonably likely that this or any other proposal for a Will, would have been made.

‘In my opinion, in a lost capacity case in which the incapacitated person has never made a will, the Court ought not to start with a presumed intention against intestacy. The Court must be satisfied by the evidence that is “reasonably likely” – in the sense of “a fairly good chance” – that the person would have made a will at some time or other, had not testamentary incapacity supervened.’.

MP was 90 years old and her estate had an estimated value of $100 million; she had engaged estate planners in order to manage her assets but wasn’t happy with the Will that they drafted.

How would your family be placed if you were to suffer a catastrophic injury?

• Do you have arranged income protection, life insurance or both?

• Do you have and Advance Care Directive or Power of Attorney in place?

• Have you made a Will?

Perhaps it’s time to take steps to do these things today.














Elder Abuse – takes many forms

The World Health Organization believes one in six people suffer from elder abuse worldwide; as the population and number of people with dementia-related illnesses increase as a corollary the number of those lacking capacity, there is a concern that the number of people being abused will escalate.

Richard Elliott lived with his father Ken in a bungalow in the suburbs of Cardiff; their relationship was not always amicable. Shortly before Ken died he called a solicitor to his hospital bedside to change his will leaving the £212,000 property to his friend of over 30 years Graeme Prance. Ken was being treated for kidney failure and arranged a meeting with Graeme; during the course of this hospital visit, Ken gave Graeme a copy of his new Will, asking him to keep it secret.

On the day Ken died Graeme told Richard ‘ you realise your dad left me the bungalow?’ assuring Richard he wouldn’t be evicted and could keep living there rent-free. Richard began the equivalent of a family provision claim challenging his father’s will; believing that Ken left the bungalow to him in his Will as Richard’s mother left it to Ken to be passed on to Richard.

Graeme was concurrently charged with fraudulently appropriating over £60,000 of Ken’s savings after being appointed by Ken as Lasting Power of Attorney (LPA). Appointing an attorney gives your attorney the legal authority to manage your financial affairs.

Although Ken gave Graeme £15,000 to buy a Van and pay for an overseas holiday; over £50,000 of unauthorised transactions occurred following Graeme’s appointment. A Power of Attorney must act in the best interests of the donor. Graeme claimed that all the expenditure was authorised by Ken; however, once the Power of Attorney had been granted the pattern of spending changed dramatically.

Under the Will Richard expected to inherit the £60,000, as Graeme had spent the majority of the savings in Ken Elliott’s accounts, Richard would inherit very little.

Graeme was convicted of four counts of fraud and following repayment of the money given a two year suspended sentence, and ordered to carry out 200 hours of community work.







Family Provision & Emigration

Norman Yee emigrated from Hong Kong to Australia in 1941; from the 1950s to the 1980s Norman and his wife Doreen assisted other family members to emigrate from Hong Kong and Southern China to Australia. Norman died in May 2013 at the age of 89 having made his last Will in June 2012. Norman appointed his son Robert, and his brother Phillip, as his executors.

Norman made seven wills in his life, however, although he made provision for his two adopted children, his second wife and her daughter Norman made no provision for any of the extended family members he had helped to emigrate to Australia.

Norman assisted his nephew William to emigrate to Australia; William lived with Norman from the age of nine for ten years. Norman’s last will dated June 2012 made no provision for William. William made a family provision claim from Norman’s estate.

The estate concedes that William is an “eligible person”  under the Succession Act and is able to make a claim for provision. But argues there are no “factors warranting” the making of any order for provision in William’s favour, and submits that no order should be made; and in the alternative, if one were to be made, that it should only be modest.

William argued that the relationship he had with Norman was more like father and son; providing him with financial assistance, accommodation and employment well into my adult life. William argued that he and Norman shared a close bond and when his uncle was diagnosed with leukemia he visited him and kept in touch with him by phone.

Robert disagreed that William and Norman were like father and son. William called him “uncle”, not “dad”. He contended that the bond between Norman and William was in not as close as the bond Norman had with his children and Robert and his sister never regarded William as our sibling.

Robert argued that Norman was very generous and that he took responsibility for the many relatives he assisted to emigrate to Australia.  William was merely one recipient of Williams’s generosity.

Robert submitted that Norman believed William  “had a bad habit of losing the money he cannot afford to lose”, “spends too much money on fancy clothes”, “gambles too much and never goes to work” and is a “good for nothing”. Further, William did not share a close relationship with Norman during the last years and months of Norman’s life; when he was diagnosed with leukemia William was not told, an analysis of my William”s phone records would show that he never rang Norman

William conceded he had debts and had been impecunious but “a just father’s moral duty is to assist the lame ducks amongst his offspring”. therefore the court should allocate a share of my uncle’s estate to me.

Robert submitted that Norman made seven wills during his life and did not provide for William in any of them; therefore the court should reject my cousin’s family provision application.

The court found that while William had lived with his uncle Norman for a significant period and had been supported by him, both while growing up and into his adult life, it was not because Norman considered William to be like a son.

While it was conceded that William lived with his uncle for longer than most of the other relatives from China, this did not negate the fact that he was living with him as a member of his extended family, not as his son.

The court rejected William’s assertion that he had had a father-son relationship with Norman, although William was financially dependent on Norman to a large extent when he was younger, this could not be said with respect to his adult life.

The court found that while William had demonstrated need, that need was largely self-inflicted. Given the circumstances of William and Norman’s relationship, there were no grounds for the estate to carry the burden of William’s poor financial decisions.



Accessory after the Fact & the Forfeiture Rule

The forfeiture rule prevents a person from benefiting from their wrongful conduct, as it would be unconscionable to allow a killer to take a financial benefit from their unjust action.

Courts permit no dilution of the rule, therefore, being convicted of murder or manslaughter regardless of the facts of the case means that no benefit can be obtained. Some jurisdictions have passed legislation amending the rule to enable the Court to take account of the variety of circumstances in which a homicide may occur.

A woman’s body was found dumped in a suitcase in Perth’s Swan River in 2016; her identity remained a mystery for two months until Tiffany Wan reported that her mother Annabelle Chen was missing.

Annabelle’s ex-husband, Ah Ping Ban, was found guilty of murder and jailed for a minimum of 20 years last year. He has appealed the sentence.

Tiffany was acquitted for murder but found guilty of being an accessory after the fact and jailed for four years and 10 months; she was found to have helped her father cover up the crime, by among other things removing Ban’s footprints from her mother’s home.

Annabelle did not have a will when she died in 2016. But she did have a trust fund which held real estate and land believed to be worth several millions of dollars.

Steven Hill was found not guilty of the murder of his defacto partner Michel Carroll by reason of mental illness. Michel died intestate leaving two children: the older son, by a previous marriage; the younger son by Steven Hill; under NSW Intestacy law Hill would be entitled to the deceased’s personal effects, a prescribed legacy, and one half of the remainder (if any) of the deceased’s intestate estate.

Carroll’s children asked the Court that the forfeiture rule apply with respect to Hill as if he had been found guilty of the murder of Carroll. The Court ruled that Hill was not entitled to any interest in Carroll’s estate or its administration and that the estate should be distributed as if the deceased died leaving two children, and no spouse.

Similarly, Brent Donald Mack, 27, was convicted of murdering his mother Ah Bee Mack (also known as Pauline), automatically prohibiting him from benefiting from his mother’s estate; in 2014 Brent’s brother Adrian died intestate. In October 2016 a grant of letters of administration to the Public Trustee (“the Administrator”) of Adrian’s intestate estate was made. Brent and Adrian’s half brother Gary (who is not a child of Ah Bee Mack) were entitled to be beneficiaries of the estate under the Administration Act.

The Administrator sought the Supreme Court of Western Australia’s direction as to the distribution of that part of Adrian’s estate incorporating Ah Bee’s estate. The Court held the logical extension of the forfeiture rule that a convicted murderer could not benefit directly or indirectly as a consequence of his crime should apply. Although Brent was not responsible for Adrian’s death, his estate, would not have acquired any interest in Ah Bee’s estate but for her death. Furthermore, Adrian would not have had an entitlement to the whole of Ah Bee’s estate but for the forfeiture, rule applying owing to her death at Brent’s hand.

Wendy Robinson and Scott Settree are the only children of Donald and Margaret Settree. In December 2014 Scott shot his parents However, the Court determined that Scott was not guilty of murder by reason of mental illness. Donald and Margaret left reciprocal Wills (often called mirror Wills) providing that the whole of each estate passes to their children in equal shares as tenants in common; if either were to predecease their parents leaving children (that is, grandchildren of the deceased parents), then the grandchildren would, in equal shares, take the share which would have passed to their parent. Wendy has two adult sons, Scott had no children.

Wendy applied under section 11 of the Forfeiture Act 1995 NSW, for orders that the “forfeiture rule” apply to her brother, in the administration of the deceased estates of their parents; the Court was satisfied that justice requires that the forfeiture rule, in some form, be applied to Scott as if he had been found guilty of the murder of his parents.

Owing to Scott’s experience of mental illness, and the absence of criminal responsibility for the deaths of his parents, the Court ordered provision for Scott’s maintenance, education and advancement in life in the sum of $50,000 out of the estate of each of his parents (a total of $100,000) to be held on trust and, that the forfeiture rule apply to the balance of the estate as if he had been found guilty of the murders of Margaret and Donald.

The Court might be in a position to decide if Tiffany’s involvement was significant enough to disentitle her from inheriting Annabelle’s estate.

Tiffany and her father were both tried for the murder of Annabelle; both denied the murder and blamed each other for the killing. Following four days of deliberation, the Jury found Ban guilty of murder, acquitted Tiffany of murder but found her guilty of being an accessory after the fact.

At trial, it was found that Tiffany had significant knowledge of her father’s actions, and her ”assistance was prolonged and sustained,” washed his clothes, removing footprints from her mother’s home and sent text messages to her mother, and persistently lied to the police even though she knew her mother was dead.

Revocation by Destruction – animo revocandi

Peter Demediuk died in February 2013 aged 93; his wife, Taisa pre-deceased him. Peter was survived by four adult children, Barbara, Peter, Nicholas and Sandra.

Peter made a number Wills during his lifetime: July 1956 in handwriting on proforma Will stationery; July 2010, November 2010, February 2012 (‘the February Will’), and June 2012 (‘the June Will’) consisting of three pages printed after being drafted using a word processing program on a home computer.

Following Peter’s death, the only version of the June Will available was a four-page document consisting of two original pages, numbered ‘one of three’ and ‘two of three’ respectively, and two further photocopied pages both numbered ‘three of three’. That third page contained the date and signature of the deceased and the two attesting witnesses.

Barbara made application for probate of the June Will. In her affidavit in support of that application, she submitted that Peter told her he had made a new Will and he wanted her to have it. Barbara did not open or read the Will before Peter’s death; when she noticed that the document comprised original pages 1 and 2, and two photocopies of page 3.

Nicholas in his affidavit opposing the grant of probate deposed that shortly after Peter’s death he found the original February Will in a filing cabinet in Peter’s home; the original page 3 of the June Will has not been found.

If the location of the original Will at the time of the death of the testator is unknown, it is assumed that the Will was last in the possession of the deceased and that he or she destroyed it with the intention of revoking it. This is called the presumption of destruction animo revocandi and the applicant needs to file affidavit evidence rebutting the presumption.

The affidavit evidence rebutting the presumption should depose to such things as the relationship between the deceased and those who benefit under the Will, any changes in the relationship, any statements made by the deceased and the extent to which the deceased’s conduct towards them remained consistent with them being beneficiaries.

The witnesses to the June Will were Peter’s carer Mafutaga Tomuli, and Kate Rogers a neighbour who agreed that in about June 2012, Peter visited Kate’s home with Mafutaga and the Will. Peter requested that Kate witness the document, by signing page 3, and initialling it at the foot of pages 1 and 2. Mafutaga signed the document while they were all seated at the same table; after signing and witnessing the Will was complete, Peter left Kate’s house taking the Will with him.

At common law, circumstances existing before or at the time of the execution of a missing Will may well bear on an assessment of the probabilities of the question whether, after executing that Will, it was intentionally revoked by the testator by its destruction. Importantly, what is to be taken into account are the circumstances ‘relevant to’ the intentions of the deceased between the time of the making of the Will and the time of the testator’s death.

Circumstances which pre-dated or were contemporaneous with the making of the Will may well reflect on, and be relevant to, the deceased’s testamentary intentions subsequent to the time of the making of the Will.

‘it might be permissible to take into account the fact that a Will was prepared and executed urgently before the testator underwent an important medical procedure’

As we have discussed in an earlier post, in determining whether the presumption of revocation has been rebutted in the case of a missing Will, the Courts have taken into account circumstances existing at and before the time of the execution of the missing Will; there are reasons why such an inquiry would be relevant to the question whether, after the Will was executed, it was subsequently destroyed or disposed of by the testator with the intention of revoking it.

The Court accepted that it was Peter’s practice to revoke earlier Wills by making a new Will. In taking into account all relevant circumstances, including circumstances that existed before and at the time of the making of the Will that is missing.

Application to Pass over an Executor

John Thornton died in April 2017, his Will made in March 2002 (“the Will”), appointed his son John as sole executor of his estate (“the Estate”). In the event that John predeceased or did not survive him for 28 days, his son Andrew was appointed substitute executor. The estate was given to both his children, equally. The estate consisted of at least six parcels of real estate. John and Andrew were specified beneficiaries of two discretionary trusts with John as the appointor. (The Appointor is the person or persons with the power to remove and appoint the Trustee.)

In 2018 Andrew made an application (“the probate action”) that John be passed over as the executor of the Estate and for him to be appointed administrator with will annexed. Andrew submitted that John purported to renounce his role as executor in December 2017. Andrew believes that John has failed to properly administer the Estate, wasted the Estate, and has engaged in misconduct in relation to the Estate prior to, and since, renunciation; that on 27 March 2018, John sent him the following text message

“Call me if you want executer of dad’s will”

Andrew submitted that John had a serious drug problem, often behaved erratically, threatened him, assaulted his mother, has failed to comply with, and has spent time in custody for breach of bail. Andrew believed that John had appropriated money belonging to the Estate; had obtained rent from properties forming part of the Estate and failed to account for this money.

Additionally John failed to insure or properly manage any of the properties, failed to pay rates or make arrangements with rating authorities, failed to liaise with mortgagees with respect to the properties,, due to the default position across the six properties with banks, there is a real risk that of foreclosure which needs to be addressed urgently.

The Court accepted that John’s conduct led to waste, loss, and unnecessarily burdened the Estate by failing to: collect the assets of the estate; determine whether the assets fell into the trusts or the estate; liaise with the creditors of the estate; satisfy the creditors of the estate; manage the estate properties; maintain the estate properties; pay rates or apply to have statutory debts put into abeyance; insure estate properties; and make efforts to call in, administer, or distribute the estate Additionally as he lived in one of the Estate properties this negated the ability for the Estate to benefit from rental income.

In March 2018 John’s former solicitors Genders and Partners, wrote to the Registrar of Probates outlining the difficulties encountered in the four months they had acted for John from May to September 2017; the reason that they ceased acting for John was that they lost confidence in their ability to instruct him in a timely manner in the administration of the Estate, that no funds were paid into trust and the solicitor was subsequently informed by John after ceasing to act for him that he had been in and out of prison during the time they were acting for him. Subsequently the solicitor was told that John had criminal charges pending and that he may serve additional time in prison.

The Court applied the two general principles governing passing over a person named as executor by a testator and entitled to a grant of probate; that the due and proper administration of the Estate has been put in jeopardy, or prevented, by the acts or omissions of the person named in his capacity as executor.

The Court accepted the evidence that John’s conduct led to waste, loss, and unnecessary burden to the Estate providing for the need to pass over John as he has wholly failed to administer the Estate and has caused loss to it. If he is not passed over, both the trust and estate properties are in danger of further loss; Pursuant to rule 33 of the Probate Rules 2015 (SA), if John is passed over, the Court is of the view that as John is passed over Andrew should be granted letters of administration with the Will annexed.

Reg Grundy & Paternity DNA

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 to probate in that jurisdiction. 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.

An earlier post discussed the April 2017 claim for family provision relief in respect of the estate, or notional estate, by Reg’s child from his first marriage; who changed her name by deed poll in 2000, from Robyn Grundy to her present name, Viola La Valette.

Reg and Viola were estranged for some time before his death; a lifetime annuity of $US250000 was provided to Viola (who is disputing the adequacy of that amount). Joy Chambers-Grundy, Reg’s widow, executor and, having survived him by 30 days, takes “the remainder” (the residue) of his estate.

Joy’s request for a suppression order over parts of Reg’s Will was dismissed by the Supreme Court in February last year. The Court believed that an “impediment” to making such an order was Joy’s

“active deployment of the media, in these proceedings, as part of her adversarial contest”

The Court was concerned that Joy’s courting of media attention renders her application to have her affairs shielded from public scrutiny that ordinarily attends proceeding in the court illustrating that an example of this behaviour was an “exclusive” interview Joy gave a Sydney Newspaper in October 2017 in which she was critical of Viola

“deliberately cultivated public fascination with the celebrity status of the deceased and herself, and with family drama attending [Viola’s] … application for family provision relief”

“Her courting of media attention renders more difficult her application to have her affairs shielded from public scrutiny that ordinarily attends proceedings in the court.”

Earlier this year a Melbourne man Simon Russell came forward claiming to be Reg’s son; seeking family provision from the estate. DNA samples from both Reg and Simon held at a lab were tested revealing the men are not related.

Simon sought and the Court granted leave to discontinue the proceedings.In a statement on Friday, a spokeswoman for Joy said:

“Mrs Joy Chambers-Grundy was always positive of the outcome, nevertheless wishes Mr Russell well in his search to find his real father.”

Family Provision is not a “Suplementary System of Social Welfare”

Robert Kohari brought a family provision claim against Paul Kohari’s estate (valued at 1,040,000) alleging he was Paul’s son despite Paul’s adamance that Robert was the product of his wife Julia Clark’s extra-marital affair. Similarly the executors of Paul’s estate disputed Robert’s claim and DNA testing was proposed. Against the wishes of Robert and Julia the Court ordered that DNA testing take place establishing that Robert was in fact Paul’s son.

At the time he brought the claim Robert was 38 years old, had no qualifications, had been unemployed for 17 years, was obese, reliant on social security, and supported a wife and four children in rented premises. He had no assets and debts of $25,000.

Paul had no contact with Robert since separating from his wife Julia when Robert was eighteen months old. Paul separated from Julia because he believed she had been unfaithful and that Robert was not his son. There was an older child of this marriage Joseph and a step child. Paul continued to have contact with Joseph who subsequently came to live with him.

Robert made two attempts to contact Paul and establish a relationship but Paul refused to respond to these written communications. Paul told his relatives that Robert was not his son; preventing Robert from having a close relationship with his grandparents or receiving a legacy from his grandmother’s estate – estimated to be around $90,000.

Paul started a relationship with Julia Santa some years after separating from Julia Clark; living in a de facto relationship until his death. Paul was extremely ill in the last nine years of his life and his de facto partner was his primary care giver.

Paul’s de facto partner Julia was the only named beneficiary in his will; she was 69, receiving a pension of $405 per week, had $12,500 in cash and anticipated she would receive $300 per week from the renting of her investment property which was worth $250,000. She had diabetes and other health issues. Julia wished to purchase a home in the Central Coast which was estimated to cost $630,000. The Court considered that Julia had a very strong competing claim on estate and that the relationship that she had with Paul “should be treated as a marriage”.

Robert’s elder brother Joseph was also excluded from the will. Ironically Paul had made a Family provision claim against his mother’s estate which left everything to the grandchildren for the following reason

“We want to give the grandchildren a start in life. Our children have had enough from us. They have their own houses. They are okay. They can look after themselves.”

The Court was highly critical of Paul believing that his selfishness toward his children compelled it to disregard his testamentary wishes and implement a distribution in line with community expectations. When considering the appropriate level of provision, although Paul’s rejection was condemned, the Court did not consider that it was reasonable for Robert to expect to receive a home but considered that it would be reasonable to give him a deposit to assist him to purchase a home.

Additionally the Court took Robert’s actions throughout his lifetime into account, declining to use the claim as a ‘supplementary system of social welfare’ as the Court was of the belief that Robert had failed to take responsibility for his own lifestyle subsequently awarding him $100,000 largely calculated on the basis of the wrongful exclusion from his grandparents’ wills.

Burial Rights & Indigenous Intestacy

Patrick Fisher died intestate in February 2018 aged 32; his father was Ross (Rossi), a Wakka Wakka man who came to Redfern from Cherbourg in about 1967. Patrick’s mother, Candice Williams, also grew up in Cherbourg although her family was from Woorabinda 500 kilometres from Cherbourg.

Patrick was raised in the Redfern/Waterloo area of Sydney, attended Redfern Public School and Cleveland Street High school; following his parents separation he was supported by members of the Redfern Aboriginal Community. When Patrick was about 14 Rossi died; according to his wishes, Rossi was buried in Cherbourg.

Patrick met Carly White, an Aboriginal woman from Sydney when they were both aged 16 and began a relationship shortly after. In February 2003, they moved into Carly’s mothers home in Waterloo. They had two children Ross and Tyrell.

Patrick suffered with addiction, spent periods of time in jail, and was involved with many women apart from Carly. Patrick fathered a child with another woman in 2010 and moved to Western Australia with another woman for about 18 months around 2011.

Candice as senior next of kin had the coroner release Patrick’s body to be buried on country at Cherbourg in Queensland. Carly sought urgent orders that she be appointed the administrator of Patrick’s estate and that the burial take place at the La Perouse/Botany Cemetery, Sydney. Candice opposed the application stating that she wished for Patrick to be buried on country in Cherbourg.

The Court made interim orders that the body be released to Carly for burial at La Perouse/Botany Cemetery. The subsequent proceedings concerned the question of what final orders should be made for the burial; as Patrick had already been buried Carly sought a declaration that she is entitled to bury the body in Sydney.

The Court was of the opinion that there is no inflexible rule that priority to apply for administration necessarily determines the question of the release of the remains and that the relevance of a de facto relationship was minimised to some extent by Part 4.4 of the Succession Act 2006 (dealing with indigenous intestacy); the fact that the deceased had no assets meant it was unlikely that an application for a grant of administration would be made.

The Court sought expert evidence with regard to the importance of the desire by many indigenous people to be buried ‘on country’ (that is on ancestral lands). However there are occasions where practical considerations have made this ‘ideal’ unattainable; further, there are particular cultural and spiritual practices raised in this case, including the importance of visiting and tending to the grave.

The Court must ultimately make an evaluative judgement, that includes the interests of the deceased’s children who should be accorded greater weight than the interests of the extended family due to the nature and closeness of the respective relationships (children as against extended family). After taking into account all the relevant factors, including any cultural and spiritual matters, and the specific factual circumstances of the case the Court concluded that Carly and her children were

‘the persons best able to deal with the Deceased’s remains consistent with his background..’

some of his wishes and the importance of the urban Aboriginal culture he was so deeply absorbed by.

Benjamin Orders & the Missing Daughter

Ian Roderick Douglas died in February 2013 aged 72. Ian was unmarried, with an estate valued at $ 1,250,000. In a Will (“the Will”) made in May 2010, he appointed David Cummins and Barry Miller as his executors (“the executors”) probate of the Will was granted to them in May 2013.

Following payment of debts and other pecuniary legacies the Will distributed one half of the residue to his daughter Darcel Wu; the other half of the residue was left to a daughter he had yet to find, whose name and whereabouts were unknown to Ian at the time he made the Will but who he believed lived in Victoria (“Victorian daughter’).

“If it can be established that the Victorian daughter died before me leaving children then her children shall take the share which their mother would otherwise have taken. If my Victorian daughter cannot be found or is proved not to have survived me and to have died without children then the share she would have taken shall pass to Darcel.

Darcel was born in 1964, and until she was 17 believed that her mother’s husband was her father, she met Ian about 1990, following which they met infrequently. In 2012 Ian told Darcel that he had been made aware that he had fathered a daughter who lived in Victoria who he wanted Darcel to meet once his Victorian Daughter had been located.

Neither the executors nor the persons who were given pecuniary legacies by the will had any knowledge of Ian having another daughter. Ian told Darcel that he did not know the name of his daughter or anything about her, only that she might exist.

Establishing the identity or whereabouts of the Victorian Daughter to whom part of Ian’s estate should be distributed and the inability, despite adducing all available evidence, of ruling out the possibility that she exists or had descendants who might still be alive adds considerable difficulty to the executors’ duties. Unless after considering the available evidence the Court orders that the executors may distribute the estate, administration of the estate cannot be finalised.

The executors were unable to identify or locate the “Victorian daughter” and applied to the Court seeking a “Benjamin order” allowing them to distribute the whole of the estate to Darcel without prejudice against the rights of the Victorian daughter (or her children) to claims to a half share of the residuary estate.

A “Benjamin order” is named after Re: Benjamin; Neville v Benjamin 1902] 1 Ch 723. Where a beneficiary was presumed dead having not been heard of for seven years. The Will maker died less than a year after the beneficiary was last heard of. A “Benjamin order” relieves the executor from liability if the estate or part of it was distributed to the wrong person.

An example of orders usually sought are:

1. a declaration that the beneficiary predeceased the deceased;

2. in the alternative, an order that the plaintiff be at liberty to distribute the estate;

3. in the alternative, the plaintiff seek the opinion and advice and direction of the Court in respect of the facts set out in the plaintiff’s affidavit; and

4. an order that the plaintiff’s costs be paid out of the estate on an indemnity basis.

The plaintiff is required to carry out all necessary and proper investigations to determine the persons who are or may be entitled on intestacy to the estate.

The Court was satisfied that all reasonable attempts had been made by the executors to locate the beneficiary, and ordered that they were free to distribute the estate to Darcel without personal risk. The Court further held that no conditions (such as a grant of security by Darcel ) should be placed on the order.