Voluntary Assisted Dying in Victoria

It was reported earlier today that Kerry Robertson was the first person in Victoria to be granted a permit to end her life under the state’s new voluntary assisted dying laws, the 61-year-old was in a nursing home in Bendigo when she died on July 15.

In November 2017 the Victorian parliament passed the Voluntary Assisted Dying Act (‘the Act”) providing a safe legal framework to enable a patient to die. In circumstances where a person wishes to avoid the suffering that cannot be managed in a way they consider tolerable, they may request medication to control the time and location of their death.

A ministerial advisory panel on voluntary assisted dying outlined safeguards concerning eligibility and access, medication management and storage, protections for practitioners, and reporting and oversight of the Act.

Safeguards for members of the community include the required “voluntariness” for accessing voluntary assisted dying; the discussion must be initiated by the person directly and cannot be initiated by a health practitioner; importantly a person requesting voluntary assisted dying must have decision-making capacity at the time of the request. It is not possible to request voluntary assisted dying in an advance care directive.

Safeguards for health practitioners include provisions for conscientious objection; a medical practitioner can refuse to participate in any processes related to voluntary assisted dying, including providing information, assessing eligibility, and prescribing or administering drugs.

Medical practitioners participating in voluntary assisted dying must be registered as relevant to their speciality and must complete training on voluntary assisted dying. To monitor and report on the operation of the Act a Voluntary Assisted Dying Review Board has been established.

The Act prescribes a practice of “self-administration”, enabling a patient to self-administer a prescribed lethal substance without the necessity of a doctor. In the circumstance that a patient is unable to self-administer, the Act provides that a medical practitioner can administer the substance.

To be eligible to access voluntary assisted dying a person must be;

An Australian citizen or permanent resident aged 18 or older who has lived in Victoria for at least one year before requesting voluntary assisted dying, and has the legal capacity (they can understand, retain, and make a judgement and communicate their decision) concerning voluntary assisted dying, and

Diagnosed with an incurable advanced and progressive illness that is predicted to cause death within no more than 6 months (or no more than 12 months for those with a neurodegenerative diagnosis) causing suffering that cannot be relieved in a way considered tolerable by the person.

The legislation outlines a formal procedure for accessing voluntary assisted dying, with specific requirements for a person making a direct request to a doctor; followed by an initial assessment conducted by a “coordinating medical practitioner” to determine eligibility.

A second assessment will be performed by another doctor ( “consulting medical practitioner”) to confirm the person’s eligibility. Following the second assessment, the person will make a further written declaration, signed in the presence of two witnesses and the coordinating medical practitioner.

At least nine days after the first request (unless death is likely to occur before this time has elapsed) the person will make a final request to the coordinating medical practitioner; the coordinating medical practitioner will conduct a final review to certify the request and assessment process. They will then apply for a permit, either for self-administration or practitioner administration. The drug is delivered in powder form that provides a painless, relatively quick and peaceful death.

At any stage of the process, a person who has requested access to voluntary assisted dying may change their mind and decide not to proceed.

 

Renouncing Executor

The plaintiff (“M”) and  Andrew Moffa were appointed executors and trustees in a Will made in November 2016. M sought a grant of probate. A beneficiary of the Will lodged a caveat at the Probate Registry.

A Probate Caveat [Administration and Probate Act 1919 (SA) s 26; Supreme Court Probate Rules 2015 (SA) Rule 52(1)] temporarily prevents an executor or administrator from obtaining a grant of probate or letters of administration; allowing  the person lodging the caveat to raise concerns they may have before probate or letters of administration is granted. It could be due to concerns the testator lacked testamentary capacity, or there is a later Will that revokes the earlier Will- the caveat should not be used as a tool simply to frustrate the estate process.

A probate caveat will expire 6 months after it is lodged unless it is otherwise withdrawn, dealt with, or extended in that time [See Supreme Court Probate Rules 2015 (SA) Rule 52(4)].

In August 2018 the Court appointed M the Administrator pendente lite “administrator pending litigation” to begin probate proceedings` pending the resolution of this dispute.

M liaised with the managing agent, insured and secured the deceased’s real estate, organised the removal and sale of furniture, the payment of rates from rent, reinvested term deposits, and received rent to his trust account; no other  assets of the estate (other than the items of furniture and personal effects) were sold.

The beneficiary sought orders to pass over the 2016 Will and obtain a grant of probate for a will made in 2013. Several issues were pleaded in respect of the 2016 Will. M and his firm were involved in the preparation of the 2016 Will. In the circumstances, M has determined that he should renounce his role as the executor of the 2016 will; however M has intermeddled in the estate; usually, an executor who has intermeddled may not ordinarily renounce the executorship of the will.

The court has the power to accept a renunciation by an executor who has intermeddled in the estate after taking into account the interests of the beneficiaries and the creditors of the estate.

In this matter, the beneficiaries all consent to M renouncing is role as executor. The Court held that it would be appropriate to permit M to renounce without that consent noting that the steps taken in dealing with the estate assets were necessary and appropriate in the circumstances; were protective and for the benefit of all defendants. Importantly there have been no adverse effects caused as a result of M’s actions.

The Court believed that it is appropriate that M be permitted to renounce.

 

Divorce, Survivorship & the Notional Estate

Richard Squire died unexpectedly in April 2015; his second wife Corrine was named executrix in his Will made in March 2007, leaving his entire estate to her and if she did not survive him by 30 days to be divided equally between his three children and two children by Corrine’s first marriage. Three weeks before his death Richard and Corrine separated and made arrangements to divide their assets. Richard told his children that he was preparing a new Will to reflect his changed circumstances.

The principal asset of the marriage was a home unit, which Richard & Corrine held as joint tenants (joint tenants have equal ownership and interest in the property; and a right of survivorship meaning regardless of any contrary intention in the Will that if one of the joint tenants dies, the property will automatically pass to the surviving joint tenant.) The home unit was sold in March 2015 with settlement occurring shortly after Richard’s death; with Corrine entitled by survivorship to the whole of the sale proceeds.

Two of Richard’s adult children Claire and Paul made a family provision claim for $85,000 each under the Succession Act 2006 (NSW). The value of Richard’s estate was minimal (roughly $10,000 at most) but Claire and Paul asked that the proceeds from the sale of the home unit be designated as the notional estate. A deceased’s personal Actual Estate is often only one slice of the bigger “pie” of assets that the Deceased would have been entitled to enjoy if they had not died.

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

The concept of a person’s Notional Estate becomes very significant in the area of family provision claims. If an eligible claimant for family provision (within the Succession Act 2006 (NSW)) believes they have not been adequately provided for, their claim is no longer limited to the Deceased’s Actual Estate – it also takes into account the Deceased’s Notional Estate – if the Actual Estate is insufficient to provide for the successful claimant

At first instance the Court was not satisfied that Claire and Paul had been left without adequate provision for their proper maintenance, education or advancement in life. The Court of appeal disagreed ordering the amount representing the share of the proceeds of sale of the property be designated as notional estate of Richard Squire, providing payments of $85,000 be made for each of Claire and Paul; observing however that the costs incurred by the parties in bringing the claim exceeded the value of the provision ordered.

Life Support, Medical Ethics & Capacity

A three-year-old was struck by a motor vehicle in September 2018 sustaining multiple injuries, including a traumatic brain injury, spinal cord injury and suffered a cardiorespiratory arrest along with other serious injuries.

The Court was asked to make orders regarding the discontinuation of all life-sustaining treatment and medical support, and the replacement of that treatment by palliative measures. Proceedings were commenced in April 2019; to preserve the anonymity of all concerned, the plaintiff has been given the name the Hospital, the child has been referred to as S, and his parents are to be called the Mother and the Father.

The Hospital and treating medical professionals have provided various forms of medical treatment to S since the date of his accident and reached the conclusion that S has no conscious awareness at all; it is most unlikely S will ever achieve any awareness; his injuries are terminal without artificial, mechanical life-sustaining treatment; and that all further treatment will be futile.

Furthermore, there is a medical consensus that the prolongation of S’s life is inconsistent with his dignity, and that the further continuation of the life-sustaining treatment that is being given to S would be medically unethical. However, the Mother and the Father have hoped for a miracle, so that they have remained unwilling to give their parental consent to the discontinuation of all life-sustaining treatment for S, and its replacement by palliative measures, which will quickly lead to  S’s death.

As S is a minor, the  Mother and Father are responsible for giving consent to medical procedures; they have been unwilling to give consent to the course proposed by the Hospital. The Hospital has made the application, to ensure that, if it withdraws all life-sustaining treatment for S, replacing it with palliative measures, neither the Hospital nor participating medical practitioners will be guilty of unlawful conduct in respect of the treatment of the child.

The medical consensus is that the prolongation of S’s life is inconsistent with his dignity and that the further continuation of the life-sustaining treatment that was being given to S would be medically unethical.

Fundamental to the determination of what is in the best interests of an unconscious patient is that they receive ordinary reasonable and appropriate medical treatment, sustenance and support, however, this is not equivalent to a right to the perpetuation of life irrespective of the circumstances; it may not be in the best interests of the patient to be given medical treatment that is excessively burdensome, intrusive or futile.

When a Court order is sought the Court must consider that medical treatment is proper in the circumstances and is in the patient’s best interests;  medical evidence, in this case, justified the conclusion that it was in S’s best interests that the treatment to be discontinued

 “It is reasonable also that account should be taken of the invasiveness of the treatment and of the indignity to which, as the present case shows, a person has to be subjected if his life is prolonged by artificial means…”

the dignity of a person is a real and significant factor which the Court should protect in that person’s best interests.

The Court declared the Hospital may lawfully discontinue all life-sustaining treatment and medical support measures, (including withdrawal of mechanical positive pressure ventilation) designed to keep alive in his current state; that, once this has taken place, medical services to be provided by the Hospital to the S be limited to palliative measures specifically aimed toward comfort, pain relief and relief of anxiety or torment; and the Hospital may lawfully direct a “no cardiopulmonary resuscitation order” in respect of S.

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.