heirs & successes

The office that I work out of is small and often filled with convivial discussion and the interplay of ideas. The topics discussed range from epistemology to the banalities of gossip magazines. Last week one of my work colleagues raised the issue of Islamic succession. As I had discussed various types of indigenous succession, which lead to a discussion regarding Will making under various belief systems – which I will discuss briefly in my next few posts.

There are two main forms of Muslim belief Sunni and Shi’a. The three main sources of Islamic law are the Qur’an, the customary practices of the pre-Islamic period (with an emphasis on the tribal group descending through the male line of the family) and the Hadith (the descriptions of the practices and decisions of Mohammed)

A major source of inheritance law is the Qur’an. As is similar to many jurisdictions following a persons death the Qur’an places an obligation that when a Muslim dies the following duties must be performed. They are:

• Pay funeral and burial expenses.
• Paying debts of the deceased.
• Distribution of gifts under the Will.
• Distribute the remainder of estate and property to the relatives of the deceased accordingly.

Property passes as follows

• The Spouse
• Parents and their descendants
• Grandparents
• Brothers, Sisters, and their children
• Then Paternal relatives

The customary laws that applied to inheritance in the Arabic peninsula prior to the Qur’an are reflected in Islamic law where the son takes priority over the father who in turn takes priority over the brothers who in turn take priority over the paternal uncles.

Unlike customary law the Qur’an gives daughters a specific share of an estate. If there is only a single daughter or granddaughter (the daughter of a son who has pre deceased his father) her share is one-half, if there are two or more daughters or granddaughters then their share is two-thirds. As a son inherits a share equivalent to that of two daughters, therefore if there are two or more daughters any granddaughters would not inherit from the estate. If there is one daughter and granddaughters, the daughter inherits one-half share and the granddaughters inherit the remaining one-sixth, making a total of two-thirds.

If there are any sons the share of the daughter(s) is no longer fixed because the share of the daughter is determined by the principle that a son inherits twice as much as a daughter.

Therefore, when creating a Will it is necessary to determine the relatives of the Will maker who are entitled to inherit, and their shares. These factors take greater prominence in Islam because of the restriction placed on the Will maker as to the amount and to who they can bequeath to under the Will.

Importantly Islamic laws of inheritance necessitate making a valid Will as the rules regarding intestacy in most jurisdictions do not meet the requirements for Islamic succession.

 

 

Seven people sit down to dinner only six leave. Until a series of anonymous letters were received by her Husband, George, it was thought that Rosemary had committed suicide by drinking champagne laced with cyanide.

A year later George invites the same five guests to dinner at the same restaurant, and like Rosemary dies, poisoned by cyanide in his champagne. George had shared the contents of the anonymous letters with his friend Colonel Race.

Agatha Christie is known for her murder mystery stories however Sparkling Cyanide cannot be relied upon as an example of the operation of the laws of intestacy.

George was not the intended victim of the poisoning. Rosemary had inherited a fortune from her Uncle, however under the terms of his Will if Rosemary died childless her fortune would pass to her younger sister Iris. If Iris dies unmarried the money would pass to her Aunt Lucilla.

Colonel Race has discovered that Ruth, George’s secretary, was in a relationship with Lucilla’s son Victor (a scheming narcissist). Ruth and Victor plotted to murder the sisters in order that Aunt Lucilla, who is easily manipulated by her son Victor,  gets the inheritance as Iris’ next of Kin. Due to a mix up at the dinner George drank the champagne meant for Iris.

When this plot fails, Ruth attempts to run Iris over with a car and when that fails, tries to knock her unconscious in her bedroom, and leave the gas running. Both plots are foiled by Colonel Race.

Rosemary made a will leaving everything to Iris, however Iris had made no will. The novel states that the need for Victor to act quickly was due to the fact that Probate had not been granted on Rosemary’s Will. However probate had been granted on the Uncle’s Will as Rosemary had left the Uncles estate to her sister.

If Ruth and Victors’ plot had succeeded the operation of Rosemary’s Will would mean that Iris’ intestate estate under English Intestacy Law would be gifted as follows, firstly:

 

Spouse or civil partner, (if there are none) then;

Children, grandchildren or great-grandchildren, (if there are none) then;

Parents(if there are none) then;

Brothers or Sisters-including half-brothers or half-sisters(if there are none) then;

Grandparents(if there are none) then;

Aunts or uncles -including half aunts or half uncles(if there are none) then;

the government.

Therefore if the plot to murder Iris had succeeded Aunt Lucilla would inherit the intestate estate because she was the sole blood relative, not due to the operation of the Uncles Will or because she was the next of Kin.

Agatha Christie is not an intestacy expert but it is important that you have an up to date Will.

The Māori are the indigenous Polynesian people of New Zealand who are descended from settlers from eastern Polynesia, who arrived in New Zealand in several waves at some time between 1250 and 1300. Over several centuries, the Polynesian settlers developed a unique culture that became known as the “Māori”, with their own language, a rich mythology, distinctive crafts and performing arts.

When a person dies intestate in New Zealand the Administration Act sets out general principles as to the division, priority, and in what proportion an estate is distributed.

Distribution of the estate is made per stirpes meaning that if the deceased had four children, and one of these children died before them leaving children, these grandchildren will share equally in one-fourth of their grandfather’s estate. The three living children  of the deceased also receiving one-fourth of the estate each.

Essentially the order of priority is:

• spouse, de facto partner, then
• children
• parents
• brothers and sisters
• grandparents
• uncles and aunts.

Aside from Maori freehold land, when a Maori dies intestate all other property devolves according to the general scheme of distribution on Intestacy

When a Māori land owner dies intestate the Te Ture Whenua Māori Act (“the Act”) provides that, a surviving spouse or de facto partner is entitled to a life interest in the land , unless that person remarries (or enters into a de facto relationship) or gives up the interest in writing.

The Act provides a priority order for succession to the Māori land interests:

• Children of the deceased in equal shares;
• Where there are no children then the deceased’s brothers and sisters in equal shares.  If the brothers and sisters are deceased then the interests pass to their children;
• Where the deceased has no children or brothers and sisters then the persons entitled are those most closely related to the deceased from the side of the extended family (whānau) from which the land derives, who have children living at the date of death of the deceased; and
• When no person falls into the above categories, the Maori Land Court can determine who is entitled based on customary law principles (tikanga Māori).

 

On Monday I revisited ideas that had been previously discussed about Indigenous Australians and their intestate estates. It provided some pause to consider the treatment of Indigenous populations in Commonwealth settler societies (countries colonised by the English). In Canada both Provincial law and the Federal Indian Act ( “the Act”)govern Indigenous Estates.

The Act provides that where the deceased is an Indian “ordinarily resident” on reserve or Crown land the Minister o of Aboriginal Affairs and Northern Development Canada (“the Minister”) has authority to act as the administrator of last resort and make decisions regarding the deceased’s estate.

If the deceased has made a Will the Minister must approve the will. If there is no will, or the Minister cannot approve the will, or the will has been challenged and declared void, then the estate will be distributed according to the Act.

A valid will names an executor and that is the person usually appointed by the Minister. If there is no will the Act determines who the heirs are and the Department of Aboriginal Affairs and Northern Development Canada (“the Department”) tries to find an heir who wants to administer the estate. Once an administrator or executor is appointed the Department is not involved in the day-to-day administration of the estate.

The process prescribed in the Act is usually quicker than the court process, however there are some procedural drawbacks.

It is unclear whether the Federal jurisdiction over Indians testamentary matters operates to the exclusion all provincial law. For instance Provincial laws dealing with the formalities of execution need not be followed for an Indian’s will to be valid.

The Minister has a limited power to change a deceased’s will if it would cause hardship on persons for whom the testator had a responsibility to provide.

The first step is to find out if the deceased wrote a will. The will most likely names a person as executor. The executor is the person named in the will who will be responsible for administering (settling) the estate.

Once the Department appoints the executor, the executor has the authority to:

• pay debts,
• call in money owed to the deceased,
• transfer the deceased’s reserve land to their beneficiaries, and
• distribute other assets of the estate.

If there is no will, the Act sets out rules for intestate succession. If the estate is less than $75,000, the whole estate goes to the spouse or de facto. If the estate is greater than $75,000, the spouse or de facto gets the first $75,000 and the remainder is shared between the deceased’s children and/or other relatives.

I thought that as it is Australia day tomorrow I would revisit the difficulty with Aboriginal Australians and Intestacy. The Majority of Indigenous Australians die without making a Will.

If an Indigenous Australian dies without making a Wil it can lead to burial disputes, property disputes, guardianship problems regarding young children and issues regarding customary law.

States with the higher Indigenous populations have specific inheritance regimes however only the NT can be considered successful in dealing with customary law inheritance issues.

Intestacy rules as outlined by succession legislation fail to recognise different kinship patterns, their impact in inheritance law and to recognise the importance of custodial property.

There are three main problems with intestacy for Aboriginal people. First, kinship ideas in the intestacy legislation may mean the wrong person could inherit. Second, it can make it more difficult to settle burial disputes. Third, it cannot deal with complicated customary law issues.

Unfortunately a very common problem with Aboriginal intestacy has been the development of disputes, about where the body is to be buried or otherwise disposed of. If a Will had been made the executor could decide this issue without the need for protracted court action.

Intestacy laws in every State places a strict order in which the assets are required to be distributed (spouse and de facto partners first, then children, parents, brothers and sisters, grandparents, aunts and uncles) it is usually not in accordance with the Aboriginal views as to it may not properly account for Aboriginal kinships structures.

There is a concern about the loss of secret knowledge and the possible use of secret and half-secret trusts as a means of saving the knowledge from extinction. However, this should be seen as a backup only, to be used where all ordinary ways of passing on the customary knowledge or objects had been exhausted.

 

On the 25th of January many people across the world will celebrate Burns Night. It is essentially a second national day of Scotland and is celebrated on Robert Burns Birthday.

Robert Burns was born in 1759 the son of tenant farmers in rural Scotland, his parents made sure he received a relatively good education. As an adolescent the hard physical labour on the family farm focused Burns on poetry. As a young man his first published collection of verse made him famous across the country. In fact in 2009 he was voted the Greatest Scot in History.

As well as original poems, Burns collected folk songs from across Scotland, often revising or adapting them. His poem (and song) “Auld Lang Syne” is often sung at Hogmanay (the last day of the year), and his poem “Scots Wha Hae” was viewed by many as an unofficial Scottish national anthem.

During the 1780’s he continued to publish poems and songs.  He died in 1796 at the age of 37 without a Will.  Robert Burns had a total of twelve children by four women, including nine by his wife Jean Armour. Seven of his children were illegitimate, including the first four by Jean before they were married in 1788.

His widow, Jean, applied to the Court for administration of his affairs.  There were debts owing to Burns’ estate and so Jean had to apply to the court to be recognized as the estates legal personal representative to collect them. Additionally a plan was devised to support his Mother, Widow, and 12 children by publishing a four-volume edition of his complete works and a biography

The daughter he fathered with his mothers maid appears to have only received a year of “room, board, and washing” from his estate.

Perhaps it was due to his early age or the fact he had children from four different women that he did not create a Will. Whatever the reason he left his family in a more difficult position than they should have been in when he died.

If you are celebrating Burns Night next week give some thought to creating or updating your will as the haggis is piped in.

 

In the preface to Fever Pitch its author Nick Hornby apologises to his loved ones for the countless times he has equated life to the actions Arsenal Football Club – the team he has supported all his life. There are similarities between life and sport but games are just that, games. Life is a little more important. – Although I have been guilty of raising sport to a near ridiculous importance.

I was reminded of that this week when I saw a woman in tears because the Spanish tennis player Rafael Nadal lost in the first round of the Australian Open. I know that it can be upsetting when a team you support loses an important game but there is always next week/season/year.

The main thing that is common to both sport and life is that they both end. A good athlete has a game plan that they try to execute and we should plan our lives in a similar way. Often plan A doesn’t work so we adopt a different strategy – Plan B if you will.

I was reminded again of the failure to adequately plan for you and your family’s future by a story about a Canadian families effort to obtain their dead Husband and Fathers account details from Apple. David & Peggy owned an iPad and an Apple computer. When David died, Peggy knew the iPad’s login code, but didn’t know the Apple ID password.

Governments can be quite slow in providing the regulations regarding new technologies. In most cases although you own a photograph posted online it is the service provider who owns the access and sets the rules as to who may access their service and how it may be done.

I have discussed the need for people to take out life and income protection insurances, superannuation and importantly make a Will and keep it up to date.

Until governments provide clear guidelines that executors are able to log into accounts in order to access the digital assets of a Will maker it might be wise to include a clause in your Will giving that power to your executor – and then writing down your passwords and storing them separately in a safe place.

Daniel John Cahill, a soldier in the Australian Army, died in a motorbike accident in on April 2001, aged 24 years. In August 1997, he had made a Will leaving his whole estate to Lee-Anne Rhodes who at that time he was intending to marry. This relationship broke down around 1999.

Daniel’s mother, Robyn argued that Daniel executed a Will in August 1999, which made her the sole beneficiary of the estate, but that that Will has been lost. Robyn went to court seeking probate of this lost Will, or alternatively a grant of administration of the estate of the Deceased if he had died intestate. Lee-Anne sought probate of the Will made in August 1997.

The question for decision in this case is whether the 1997 Will was ever replaced by another Will, and, if so, whether that replacement Will was unrevoked until Daniel’s death.

The following must be established when seeking probate of a lost Will:

1. there actually was a Will
2. the document revoked all previous Wills,
3. the presumption that when a Will is not produced it has been destroyed must be overcome
4. evidence of its terms, and
5. evidence of proper execution or that the deceased intended the document to constitute their Will.

The Court held that Daniel made a new Will in about August 1999. The Court accepted the oral testimony of several witnesses and it was consistent with the probabilities that when he was deployed overseas in the year 2000 his relationship had broken down and as it was a requirement of the Army that soldiers being deployed overseas have an up-to-date Will he would have had a new will made.

The Court was satisfied that the Will created in 1999 contained a revocation of prior Will and that adequate searches were made for the Daniels’s 1999 Will, and that it has not been found.

However the Court was not satisfied that the presumption that the 1999 Will had been destroyed by the testator with the intention of revoking it has been rebutted. The evidence submitted to the court showed that Daniel was the only person with access to the Will and had by the time of his death resumed, to a significant though not complete extent, his relationship with Lee Anne which casts serious doubt on whether he would have seen the Will which he made immediately before being deployed overseas still being appropriate.

As the Court was not satisfied that the presumption of revocation by destruction has been rebutted, it was not necessary for it to consider what might have been the precise terms of the Will.

As Daniel had revoked his 1997 Will and the presumption that the lost 1999 will was revoked by destruction was not rebutted The Court found that Daniel died intestate, and granted Robyn administration of the intestate estate.

Yesterday we revisited revocation of wills. The nature of revocation by destruction is interesting as it involves two distinct elements that must both be present:

• the actual destruction of the will and
• an intention to revoke the will.

The actual destruction must be by burning, tearing or otherwise destroying the will.  ‘

A Will maker took a pen and drew lines through the operative clauses, his signature and then wrote on the back of the will  ‘All these are revoked’.  He then threw the will in a pile of waste paper in the corner of the room. His housekeeper retrieved the Will from the pile of papers and kept it in a kitchen drawer until the Will maker’s death eight years later.  The Court held that although he had intended to revoke the Will what he did had not amounted to “otherwise destroying” and it was considered valid.

Interestingly Courts have held that where

• a Will maker’s signature was completely scratched out it was considered otherwise destroying.

• parts of a Will were heavily scored through with a ballpoint pen those parts were held to have been actually destroyed.

• a Will maker cut off part of his it was held that the parts cut off were revoked but that the rest of the will remained intact.

Essentially if the destroyed part impinges on the whole will, the whole will is revoked, however If the parts destroyed are less important, only those parts will be revoked.

Importantly the Will must be destroyed by the Will maker or at the direction and in the presence of the Will maker. For example on her deathbed a Will maker directed that part of her Will was to be revoked. The person directed to destroy the Will burnt it in another room. It was held that there was no actual destruction.

However, if the Will maker instructed that their Will is to be destroyed in writing and the Will maker and two witnesses sign the document the destruction (although not in the presence of the Will maker) would effectively revoke the will.

The Will maker must have the same capacity to revoke as is necessary to execute a valid Will. The Court held that an old and confused Will maker who tore her Will into forty pieces lacked the mental capacity to revoke and the will was therefore still valid.

Similarly if a testator is under some mistaken belief a destruction of the will in the circumstances would not lead to revocation, it will not be revoked, as there is no intention to revoke.

If a Will is lost, or found torn or mutilated after the Will maker’s death the will is presumed that the Will maker destroyed the Will with the intention of revoking it.

When you revoke a will it is no longer valid. At the time of the Will maker’s death their most recent valid Will determines how their estate will be distributed.  If their Will has been revoked, and a new Will hasn’t been made they will die intestate.

Importantly a Will may be revoked either voluntarily or by marriage and (in some jurisdictions) divorce.

A will may be revoked by:

• The creation of another valid will or codicil;
• a valid declaration in writing of an intention to revoke a will; or
• the destruction of the will.

Revocation by another will or codicil

Most wills have a clause revoking prior wills, such as “I revoke all former testamentary dispositions”.

Revocation by declaration in writing

Any writing declaring an intention to revoke a will is sufficient, provided that the declaration is signed by the Will maker and witnessed in the same manner as a Will

Revocation by destruction

If a Will is intentionally destroyed by the Will maker it is considered to be revoked by destruction. A will destroyed by accident or mistake is not revoked (as the testator did not have the necessary intention to revoke that will).

Where a testator’s last will cannot be found, there is a presumption that it has been destroyed. However, if it can be proved:

• that there was a will;
• that it revoked all previous wills;
• that it has not been destroyed;
• the terms of the will; and
• that it was correctly executed.

A court may decide that it is a valid Will and can be relied upon

In all of these instances the Will maker must have both the legal capacity, and intention to revoke the Will.

However revocation by marriage or divorce does not require an intention to revoke.

Revocation by marriage

Unless a Will is drafted clearly stating that it is on the contemplation of marriage it is revoked by the later marriage of the Will maker. If a new will is not made after marriage, the person will die intestate. 

Revocation by divorce

In some jurisdictions a Will is revoked by Divorce.