heirs & successes

On the weekend I was asked if the Courts have made orders about the presumption of death for people who have disappeared that were not as infamous as Lord Lucan. The common law recognises that a period of time (usually at least seven years in most jurisdictions) must pass following a person’s disappearance before they are presumed to be dead. However, it is not always necessary to wait for that period for a person to be held to be deceased, even where that person’s body has not been found.

Over the years Courts have had to make rulings regarding the death of a professional diver who went missing during a dive and was presumed to have died. Similarly where people have been aboard ships that are wrecked; a pilot who has not reached their destination; and where a man had been washed from rocks while fishing and had not resurfaced.

In many jurisdictions it may be difficult to obtain a death certificate to conclusive prove that a person has died. In these cases where there is evidence before the Court in which a safe inference could be drawn that a person had died it can disregard the usual requirement of seven years. In these instances the Court can grant probate or letters of administration.

In August 2014, Peter Maynard travelled by himself to Bali on a surfing holiday. He arrived in Bali and checked into his accommodation, but never checked out and was not seen again after he went surfing. A local dive master recovered a fragment of his surfboard, but despite an extensive search, Peter’s body was never recovered.

Peter was married and had three children, but did not leave a Will. The Supreme Court of Queensland held that Peter died in Indonesia without his body being found and no death certificate was issued. The Court held that due to his connection to Queensland it was appropriate for the case to be heard and determined in Queensland.

Due to the close relationship Peter had to his wife and children; that the time he disappeared is known, that he went surfing in what were apparently quite difficult seas; the remnants of his surfboard have been found and suggest a severe impact with a coral reef; that extensive searches were carried out without success; and that he has not contacted his wife, any other member of his family or his friends, or operated any of his bank accounts, since August 2014, the Court ordered that his wife could swear to his death and be granted letters of administration upon intestacy in those circumstances.

 

In November 1974 Richard Bingham, 7th Earl of Lucan commonly known as Lord Lucan, vanished after his children’s nanny Sandra Rivett, was found bludgeoned to death, and his ex-wife was severely beaten with a lead pipe. Lord Lucan’s car was later found abandoned and bloodstained in Newhaven, East Sussex. An inquest found that Lord Lucan killed Sandra after mistaking her for his wife.

Aristocracy is an archaic institution. As a peer of the realm Lord Lucan inherited his title from a direct ancestor. Peers date back to feudal times where originally they swore an oath of loyalty to the monarch in exchange for protection, land, money, or a combination of these things. A Peers fortunes rose and fell according to the stability and their favour with the Monarch. Peers were periodically summoned to Parliament, forming the origins of the House of Lords.

Usually the title can only be inherited by legitimate male heirs therefore the 8th Earl of Lucan, can only inherit on the death of the 7^th Earl. The absence of a body, and lack of a death certificate, complicates things, as the earldom cannot pass to his son George Bingham until he is granted a death certificate for his father.

Lord Lucan liked to gamble, and although he was successful as a young man was Bankrupt when he disappeared. A report to creditors in August 1975 stated his unsecured debts of £45,000 and liabilities of £1,326. His assets were estimated at £22,632. In order to discharge his debts the family silver was sold and the balance was repaid from proceeds from the Lucan family trust.

Some people might not want to take a title that is as infamous, however, the Bingham family has form on that front. The 3rd Lord Lucan, is known, among other things, for being  one of three men responsible for giving the order for the Charge of the Light Brigade during the Battle of Balaclava in October 1854 – made famous by Alfred Lord Tennyson.

English law generally assumes that if there has been no evidence a person is still alive, and after inquiries have been made into their whereabouts the people most likely to hear from them have had no contact after seven years they are considered to be dead. The Lucan family was granted probate in 1999 however no death certificate was issued and his son was refused permission to claim both the title and his seat in the House of Lords.

The Presumption of Death Act 2013 was passed allowing an application to the High Court to declare that a person is presumed dead. Death is taken to occur on

(a) the last day that they could have been alive (if the court is satisfied that they are dead),or

(b) the day seven years after the date they were last seen (if death is presumed by the elapse of time).

As the 7th Earl of Lucan was last seen alive in 1974 (notwithstanding numerous alleged sightings since that time) the Court issued a death certificate.

George Bingham can now assume the family title as the 8th Earl of Lucan but cannot sit in the House of Lords, as the title was one of those excluded when membership of the upper house was reformed in 1999. He is however eligible to join the ranks of peers who can be elected to replace those who have died or retired.

 

We touched on Cryopreservation yesterday and the fact that if a person is cooled below -5C the water inside their cells freezes and creates ice crystals, which essentially destroy the cell membranes.

To help arrest this process cryonic preservation facilities replace some of the body’s water with cryoprotectant agents, in an attempt to reduce the amount of ice crystal formation in a process known as vitrification. Cryobiologists have no proof that human organs can be successfully vitrified. As the bodies are stored in liquid nitrogen there is no way to know if their organs have been damaged irreparably during the vitrification process.

Similarly even if the cryopreservation of organs was possible, in order to be preserved different organs need to be cooled at a different rate and with a different mixture and concentration of cryoprotectant. The preservation of the brain is even more complex.

With these problems to overcome some people are hoping to upload their mind—encompassing their memories, skills and personality—to a computer programmed to emulate the processes of a human with the effect of being “immortal”.

As with cryonic preservation it relies upon the presumption, that the human mind in all of its beautiful intricacies is contained within the anatomical structure of the brain.

It has been estimated that the human brain, has about 86 billion neurons and 100 trillion synapses. The Human connectome project is currently attempting to map the neural pathways that underlie human brain function. This kind of mapping has been done on simpler life forms. A connectome for the nervous system of a roundworm called C. elegans containing 300 neurons and 7,000 synapses took a little over a decade to produce.

Ray Kurzweil has adopted the term “technological singularity” (first coined by Vernor Vinge in the early 1990’s) and believes that the technology required for uploading a specific brain with every mental process intact will be available by 2040, at this point “human life will be irreversibly transformed”.

However the definition of death in most jurisdictions is, the irreversible cessation of all function of the person’s brain or the irreversible cessation of circulation of blood in the person’s body.

Therefore at this point of technological singularity, if the definition of death does not change the uploaded brain of an individual may become immortal but their estate will be distributed according to their Will or the laws of intestacy if the upload occurs before they make a WIll.

Similarly what happens if the medical nanotechnology becomes available that can repair the damage inflicted by the destructive effects of cryopreservation enabling some one who is legally dead to be revived?

Perhaps the law will need to change to reflect the fact that a person who is legally dead has returned in an altered state. Are they considered a person for tax purposes? Should they be able to inherit part of an estate if it was left to the person that they once were? Should there be a change to succession law allowing for these “Zombie Wills”? Changing technologies require that legal frameworks are able to adapt to meet the new outcomes. Regardless the need to plan for your future remain the same.

 

In what may be an apocryphal story, Benjamin Franklin when visiting London opened a bottle of fortified wine he had brought from Virginia.  Three flies had been trapped in the alcohol when it was bottled, and when the bottle was opened two of the flies revived after a few hours and flew away.

Observing this event Franklin wondered if he could be preserved in a wine barrel in order to be revived

“to see and observe the state of America a hundred years hence.”

Franklin’s ideas have continued to fascinate people today. Over the past 50 years people have thought that they could preserve their bodies through Cryopreservation with a hope that a far future societies medical advances will someday allow them to be revived.

There are a variety of legal and ethical issues concerning cryonic preservation of a body. A person must be legally dead prior to the process beginning. A cryonics facility removes the blood and replaces it with organ preservation solution. The body is injected with a cryoprotectant solution to try to stop ice crystal formation in the organs and tissues and the corpse is cooled to -130C. The body is then stored in a container in a tank of liquid nitrogen, kept at -196C.

Legally, preserved individuals are dead,although the Cryonic facilities describe them as patients. Importantly under common law there is no property in a dead body. Where people have been charged with entering a graveyard and removing a corpse for the purpose of dissection it is considered a criminal conviction, for trespass, not for theft .

However Courts have found  that the preserved body of a two-headed baby could be regarded as property because it had been preserved with care and skill. This approach suggests that if a body is preserved with care and skill by an embalmer it then belongs to the embalmer, or perhaps, to the person who paid the embalmer. This has been applied where preserved body parts taken from the Royal College of Surgeons were considered to be the property of the College and the person who took them could be charged with theft.

In many countries the Cryonic preservation of bodies is illegal so those people who wish to be preserved in this way must travel to the US where it is permitted in several states. The costs of preservation are covered through purchasing a life insurance policy with the beneficiary being the cryogenic company.

Notwithstanding that in the United States around 150 people have had their whole body stored in liquid nitrogen and a further 80 have had just their heads or brains preserved. The reality is that the ability to revive a frozen body “isn’t really on the horizon.”

Without going into the nuances of neuroscience or Cartesian Dualism, how would the Will of a person who wishes to be cryonically preserved be drafted to account for their estate?

A Court can find that where a Will is lost the party seeking to argue revocation must prove it.

In the month of February L made a Will leaving it with her solicitors. In late May she prepared document “A” in the form of a will, and signed it in the presence of one witness. On the same day she wrote to her solicitors asking them to send her Will as she wanted to

“look it over and make some alterations.”

In early June a second person signed the document “A” as a witness. On the same day L’s lawyer posted the will as requested. L’s Will arrived at her address a week later L looked it over and returned document “A” to her lawyer, with a letter stating:

“I enclose a new will which I wish kept unopened.”

She died a week later.

Document “A” was not properly executed as a will, and could not be admitted to probate. After searching her papers the February will could not be found. Application for probate of the draft of the February Will was made but this was opposed by L’s Husband, who argued that she died intestate, as Document “A” being informal and the will of February having been revoked.

L’s Husband had to prove revocation. He argued the will of February had been in the possession of L in early June but was not among her effects after her death, therefore it must be presumed L had destroyed the will with the intention of revoking it

The Court took another view being that L was under the impression, that document “A” was a valid Will, and believed that by the execution of that document her previous will had been revoked. Therefore L destroyed that will, not for the purpose of revoking it but in the belief that she had, already revoked it and that the earlier will was then of no effect whatever. As destruction without intention to revoke is not in itself an effective revocation of a will probate ought to be granted to the February Will.

Similarly where evidence supports that a person has made it known that if they died intestate a share of his estate would go to a person who would waste the amount inherited, and has expressed the intention of making a will in favour of a specific person or group.

If evidence is provided that a Will was made in the terms discussed, and this can be corroborated, and that the deceased had a tendency to lose documents. A Court can conclude that there is a higher degree of probability that the will was lost rather than being destroyed by the deceased with the intention of revoking it.

We have discussed the need for planning for your future but once a Will has been created where will you store it? If a Solicitor has prepared a Will they often provide to store your Will, or you can take your Will home and keep it with your important documents. However what happens if your Will is lost or misplaced?

Allen James “Jim” North died in June 2011 aged 83. He never married, had no children, his parents pre-deceased him and his only sibling died unmarried and childless in 1978. His estate was valued at $5 million dollars when he died.

He had a red folder, which was marked AJN’s Will containing a series of wills made by Jim over the last six years of his life. Jim had also completed the following note which he stored in the folder stating that if he died failing to make a valid Will he would be described as dying “Intestate” this note ended:

“the formal making of a detailed Will is imperative, and has, with guidance from Christopher Bone, (his cousin and Lawyer) been commenced.”

One of these 2008 drafts was executed as a Will with William and Suzanne Lawrence as witnesses. This document is in the file but it is torn in half, which normally indicates that it had been revoked. This Will contains some typing errors. Jim used an electronic typewriter with a golf ball so that he would produce a clear original typed script and the copies would be carbon copies. It was argued that Jim was meticulous and detailed by nature and on the balance of probabilities he would not have wanted to die intestate.

Jim had no close relations when he died. If he died without a Will the rules of intestacy dictate that several more remote relations would inherit his estate. Some of them came to Court alleging that Jim died intestate.

Jim carried a leather satchel with him wherever he went, which was thought to contain his most important papers. After he died his relatives searched his house and safe deposit box but couldn’t find the satchel. It is possible that an original will was in the satchel and the satchel has been lost.

The Court was told of a conversation that Jim had two weeks before he died. Where he discussed his assets and how he intended to leave his estate. This conversation ended with Jim stating

“Yes, I have prepared [a Will] and it is all done.”

Five matters must be established when probate of a lost will is sought.

(1) That there actually was a will;

(2) That that will revoked all previous wills;

(3) That the presumption that when a will is not produced it has been destroyed is overcome;

(4) Evidence of the terms of the will; and

(5) Evidence of due execution.

The Court was satisfied in the absence of any contrary evidence that Jim had created a Will that was in the same terms as the 2009 Will witnessed by William & Suzanne Lawrence. That Will was subsequently lost so the Court granted probate on the 2009 Will.

It is important that you create a valid Will in order that your wishes regarding your estate are met. Equally your Will must be easy to find when you die so your wishes can be followed.

Amy Winehouse died in July 2011 from alcohol poisoning aged 27 without a will. Her estate was valued at around $7 million.

Newspapers and magazines reported that her estate would be worth as much as $20 million. Similarly that she had made a Will following her divorce from ex-husband, Blake Fielder-Civil. Sadly neither of these was true.

In the United Kingdom (like most jurisdictions) when an unmarried adult without children dies without a will, their estate is distributed to their surviving parent(s). If no parent is alive, the estate will then be distributed to the decedent’s living siblings in equal shares.

Amy died unmarried and without children, both of her parents are still alive, therefore Amy’s estate passes to her parents Mitch and Janis. According to Court documents Mitch applied for letters of administration.

Amy was still close to her ex-husband, but intestacy rules mean he was not left anything. If Amy had made a Will he could have been left something from the estate. Similarly Amy may have wanted to leave something to her brother Alex but without a Will this is not possible.

Amy supported a wide range of charities including Adopt-A-Minefield, Anti-Slavery International, Breast Cancer Campaign, CARE, Children’s Medical Research Institute, , Greenpeace, the Red Cross, Lifeline Oxfam, UNHCR, and UNICEF. Amy couldn’t give any of these organisations bequests from her estate as she died without a Will.

It is important to note that her family established the Amy Winehouse Foundation to prevent the effects of drug and alcohol misuse on young people. It has developed a Resilience Programme for Schools across the UK to provide education around drugs, alcohol and to assist young people dealing with emotional issues.

Unfortunately, as Amy didn’t leave a Will she couldn’t control the distribution of her assets following her death. It may sound like I’m banging the same drum but planning for your future by taking out adequate insurance, ensuring that you have powers of attorney, and advance care directives in place, taking the time to understand and manage your superannuation, and importantly making a Will and keeping it up to date is the best thing that you can do so that when your family and friends are going through a stressful time they don’t have to guess your intentions.

In a discussion that I had recently, a friend of mine asked if a formal Will is really necessary, as legislation in most jurisdictions provides that  a Court can deduce the testamentary intention of the deceased by taking extrinsic evidence into account. Whilst that is true it is much easier, and less expensive to make a formal Will.

Roger Currie died in July 2012 aged 52. He had a long history of heart problems and died following surgery to his heart valves. Roger had never married.

Following his death no formal Will was found. If there is no Will the rules of intestacy apply, so his brother David sought letters of administration in respect of Roger’s estate. Roger had created a Computer Document that set out his intentions, therefore several of his friends began Court proceedings seeking orders that probate be granted in respect of a document found on Roger’s computer after his death (the Computer Document).

Roger had discussed the need for a Will for many years before his death. He had asked a friend:

“with my heart problems, would you be my executor if something goes wrong?”

The friend said that he was willing to be the Rogers’s executor.

In April 2012 Roger had a party at his home, he discussed his heart problem and the fact that he felt that although he was reticent to have  surgery he felt he had no other option.

Roger made a gesture over his shoulder while telling one of his friends

“If anything happens to me I have made a will. It’s encrypted.”

He told her the pass code but the friend couldn’t recall the number. Roger had made a Will about ten years before he died and told his friend at that time that it was located in

“the antique wooden accountant’s box with the secret compartment”.

After Roger died two USB sticks were found in his house, the password was bypassed, and the Computer Document discovered. A forensic analysis established that the Computer Document was last modified in April 2009, and last accessed in May 2012.

The Court held that the language used in the Computer Document is clearly language of testamentary intention. Roger had:

appointed as sole executor and trustee of his estate the friend he asked many years before his death.

• identified with precision those items that he had decided to “leave” to the named persons in the Computer Document.
• He was careful to deal with the residuary of his estate and to provide a choice of items to the named beneficiaries
• provided reasons why his siblings and his nephew were not named as beneficiaries in the document.
• provided that the document was “signed” by him – the last paragraph of the Computer document read – Signed by the writer Roger Christopher Currie on this day Wednesday, 1 April 2009.

The Court was satisfied that in the circumstances Roger intended the Computer Document to operate as his will.

If Roger had created a formal Will, his friends wouldn’t have had to go to the expense of hiring computer experts, and litigation lawyers, to seek the Courts opinion  to make sure that his testamentary intentions were met.

If you go to the trouble of creating a document that sets out your testamentary intentions – go that extra step and formalise it.

After her husband died a Woman found that he had been married in Serbia at the same time as being married to her. Notwithstanding the unwitting nature of this bigamous union the Court held that the nature of this second marriage meant that,

“[s]he is thus not the widow of the testator, and not in the class of persons who may make application for provision out of the testator’s estate”.

She was therefore not entitled to make an application for family maintenance.

Legislation has been amended to provide that where the deceased is married and also has a de facto,  a bigamist’s second or subsequent partners may be entitled to a share of an intestate estate if they meet the definition of a de facto spouse.

A deceased’s personal effects could cause difficulties in a situation where two spouses are claiming ownership over the deceased’s assets. South Australian law provides that, where a person dies intestate in a similar situation as above both the wife and the de facto would be entitled to equal shares in the property (including personal property). If a dispute arises between the two regarding the division of personal property, the administrator of the intestate estate may sell them and distribute the proceeds of the sale.

In a similar situation in the Northern Territory the de facto partner of the intestate is entitled to all the personal effects if they:

• were the continuous de facto partner for more than two years immediately preceding the intestate’s death, and
• the intestate did not at any time during that period live with the person to whom they were married

Queensland provides for the distribution of the intestate’s personal effects to be negotiated or imposed by the Court. Similarly alternative dispute resolution procedures are generally used in Tasmania where there is both a surviving spouse and defacto.

However if there was a limit placed upon on the number of de facto partners that may claim under an intestate estate it could lead to the parents of some children of the intestate not being provided for. Where there is more than one spouse or partner each spouse or partner of the intestate should share equally in the estate (including statutory legacies). If there are insufficient funds for a full statutory legacy for each spouse, the amount that is available should be shared rateably. Each child of the intestate should also be entitled to an equal share .

 

Last Thursday we discussed a situation where children that were being carried by their mothers at the time a person died are able to be beneficiaries under a Will.

Artificial reproductive technology means that these provisions may be inadequate when dealing with all situations resulting from a child of the deceased being born after their parent’s death.

Warren Bazley was diagnosed with cancer of the liver in July 2009. He and his then partner Kate had one child and wanted to have more, however their Oncologists advised them that they would be “unable to have children” for 12 months after chemotherapy ceased, and treatment may leave Warren infertile.

Warren provided a semen sample to an IVF clinic in late July 2009, received intensive chemotherapy until December 2009- unfortunately the cancer had spread and Warren died in January 2010.

In December 2009 Warren and Kate married. Warren prepared and executed a Will appointing Kate, as one of the executors and trustees of his will. Kate was the principal beneficiary of Warren’s estate and provided for his children, and a stepchild.

Warren made no directive about the posthumous use of his sperm.

The IVF clinic stated that the ethical guidelines covering assisted reproduction state that unless there is a clear written directive consenting to the use of the sperm they could not allow it to be used to assist Kate to become pregnant.

The Court was equivocal on the matter.

There have been cases where insemination has already taken place with the resulting embryo being frozen and only placed in the uterus after death.

One such case involved a couple that entered an IVF program in 1993. The usual clinical practice for IVF programs is to create multiple embryos for transplantation. A son was born in 1994 as a result of an implanted embryo, however the Husband and Father died intestate in 1995. He was survived by his wife and four children (three of them from a previous marriage)and had further frozen embryos in storage.

The Court held that the embryos were not actually living at the date of the deceased’s death. As the intestacy rules are contingent upon an unborn embryo being born alive they could not inherit as part of the current legislation. However if an embryo was born alive it would become a child of the deceased therefore the same legal principals should apply as between frozen embryos and children en ventre sa mere.

Law Reform Commissions that have considered the question have come to different conclusions as to whether frozen embryos should be considered as en ventre sa mere for intestate succession although agree that as children of the deceased should be entitled to make an application for family provision

Some artificial reproductive techniques may delay birth leading to delays and complexity in the administration of a deceased estate, therefore, it is probably best to disregard for the purposes of intestate succession any child born by means of artificial reproductive technologies where the child was not en ventre sa mere at the death of the intestate.

Several Jurisdictions have subsequently amended succession legislation to clarify this situation, limiting unborn claimants of intestate estates only to those children en ventre sa mere.