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Continuing Professional Development Seminars

The New Succession Laws and Their Impact on Estate Planning

Presenter: Ramena Kako

While all reasonable care has been taken by the presenters and authors in presenting this publication, the content, statements and issues raised in this paper are by way of general observation as to the law in a summary form and does not seek to address all legal issues comprehensively and does not constitute advice by the presenters, authors or Continuing Professional Development Seminars Pty Ltd (CPDS) in relation to any particular circumstances which may either directly or indirectly relate to the issues of law addressed in this paper. The views and opinions expressed in this publication are those of the individual presenters and authors, and not those of CPDS. No responsibility or liability is accepted by CPDS for the accuracy of any statement, opinion or issues contained in this publication.

CONTINUING PROFESSIONAL

DEVELOPMENT SEMINARS

Continuing Professional Development Seminars Pty Ltd

42 Byron Street

North Melbourne, 3051

Phone (03) 9328 2688

Fax (03) 9328 4688

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Table of Contents

About the Presenter .............................................................................................................. 4

Seminar Programme ............................................................................................................. 5

1. Statutory Wills Under the Succession Act 2006 (NSW) .................................................. 6

2. Family Provision under the Succession Act 2006 – what has changed? ...................... 32

3. The New Intestacy Laws and Overview of the Succession Amendment (Intestacy) Act

2009 .................................................................................................................................... 51

4. Informal Wills under section 8 of the Succession Act 2006 .............................................. 59

Cases and Examples .......................................................................................................... 64

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About the Presenter

The presenter at this seminar will be Ramena Kako. Ramena is a barrister and member of

13 Wentworth Selborne Chambers. Her main areas of practice are wills, probate &

succession law, equity & trusts and commercial Law. She appeared in the first decision of

the NSW Supreme Court on court authorised wills under the Succession Act 2006 in Re

Fenwick [2009] NSWSC 530 and more recently, in Re Crawley [2010] NSWSC 618. Her

experience ranges from advising executors and beneficiaries in all areas of contested and

non-contested probate applications, testamentary capacity disputes, family provision claims

and breach of trust/ fiduciary duties claims.

Prior to being called to the Bar, Ramena was a solicitor at Teece Hodgson & Ward, Henry

Davis York and Norton Rose (Deacons). She also served as tipstaff to the present Supreme

Court Probate List Judge, Justice Palmer and is a regular speaker in areas of Succession

Law.

Ramena Kako

Barrister-at-Law

13 Wentworth Selborne Chambers

174-180 Phillip Street

Sydney NSW 2000

Ph: 02 9232 7750

E: [email protected]

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Seminar Programme

1.45 pm – 2:00 pm Registration

2.00 pm – 2:10 pm Introduction

2.10 pm – 3.40 pm Session One

3.40 pm – 4.00 pm Afternoon Tea

4:00 pm – 5:15 pm Session Two

5:15 pm – 5:30 pm Concluding comments – Questions and Review

The above programme is flexible and will be subject to change on the day depending on the

requirements of the group who are in attendance. The times used are intended to be

indicative only.

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1. Statutory Wills Under the Succession Act 2006 (NSW)

INTRODUCTION

A new area of the reforms made to succession law in NSW is the granting of jurisdiction to

the NSW Supreme Court to make order approving Wills made for persons lacking

testamentary capacity.

The usual position is that a person who lacks testamentary capacity cannot make a valid will.

The new provisions of the Succession Act 2006 (NSW) (the Act) have changed all of that.

The Supreme Court exercised its powers under the Act for the first time in two decisions: Re

Fenwick and Re Charles, Justice Palmer granted leave to the parties to make the application

and made orders authorising a will/codicil to be made for two people lacking testamentary

capacity.

The applications were heard separately. His Honour set out detailed reasons for his decision

and provided a very useful analysis of the English and Australian legislative provisions and

authorities dealing with statutory wills. The decision warrants a read and provides

practitioners with the guiding principles and procedure for those considering bringing an

application for a court authorised will.

Legislative Overview:

Section 18 of the Act provides:

Court may authorise a will to be made, altered or revoked for a person without

testamentary capacity

(1) The Court may, on application by any person, make an order authorising:

(a) a will to be made or altered, in specific terms approved by the Court, on behalf of

a person who lacks testamentary capacity, or

(b) a will or part of a will to be revoked on behalf of a person who lacks testamentary

capacity.

(2) An order under this section may authorise:

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(a) the making or alteration of a will that deals with the whole or part of the property

of the person who lacks testamentary capacity, or

(b) the alteration of part only of the will of the person.

(3) The Court is not to make an order under this section unless the person in respect of

whom the application is made is alive when the order is made.

(4) The Court may make an order under this section on behalf of a person who is a

minor and who lacks testamentary capacity.

(5) In making an order, the Court may give any necessary related orders or directions.

Note. The power of the Court to make orders includes a power to make orders on

such terms and conditions as the Court thinks fit—see section 86 of the Civil

Procedure Act 2005. The Court also has extensive powers to make directions under

sections 61 and 62 of that Act.

(6) A will that is authorised to be made or altered by an order under this section must be

deposited with the Registrar under Part 2.5.

(7) A failure to comply with subsection (6) does not affect the validity of the will.

Section 19 provides:

Information required in support of application for leave

(1) A person must obtain the leave of the Court to make an application to the Court for

an order under section 18.

(2) In applying for leave, the person must (unless the Court otherwise directs) give the

Court the following information:

(a) a written statement of the general nature of the application and the reasons for

making it,

(b) satisfactory evidence of the lack of testamentary capacity of the person in relation

to whom an order under section 18 is sought,

(c) a reasonable estimate, formed from the evidence available to the applicant, of the

size and character of the estate of the person in relation to whom an order under

section 18 is sought,

http://www.legislation.nsw.gov.au/xref/inforce/?xref=Type%3Dact%20AND%20Year%3D2005%20AND%20no%3D28&nohits=y


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(d) a draft of the proposed will, alteration or revocation for which the applicant is

seeking the Court’s approval,

(e) any evidence available to the applicant of the person’s wishes,

(f) any evidence available to the applicant of the likelihood of the person acquiring or

regaining testamentary capacity,

(g) any evidence available to the applicant of the terms of any will previously made

by the person,

(h) any evidence available to the applicant, or that can be discovered with

reasonable diligence, of any persons who might be entitled to claim on the

intestacy of the person,

(i) any evidence available to the applicant of the likelihood of an application being

made under Chapter 3 of this Act in respect of the property of the person,

(j) any evidence available to the applicant, or that can be discovered with reasonable

diligence, of the circumstances of any person for whom provision might

reasonably be expected to be made by will by the person,

(k) any evidence available to the applicant of a gift for a charitable or other purpose

that the person might reasonably be expected to make by will,

(l) any other facts of which the applicant is aware that are relevant to the application.

20 Hearing of application for leave

(1) On hearing an application for leave the Court may:

(a) give leave and allow the application for leave to proceed as an application for an

order under section 18, and

(b) if satisfied of the matters set out in section 22, make the order.

(2) Without limiting the action the Court may take in hearing an application for leave, the

Court may revise the terms of any draft of the proposed will, alteration or revocation

for which the Court’s approval is sought.

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21 Hearing an application for an order

In considering an application for an order under section 18, the Court:

(a) may have regard to any information given to the Court in support of the application

under section 19, and

(b) may inform itself of any other matter in any manner it sees fit, and

(c) is not bound by the rules of evidence.

22 Court must be satisfied about certain matters

The Court must refuse leave to make an application for an order under section 18 unless

the Court is satisfied that:

(a) there is reason to believe that the person in relation to whom the order is sought is,

or is reasonably likely to be, incapable of making a will, and

(b) the proposed will, alteration or revocation is, or is reasonably likely to be, one that

would have been made by the person if he or she had testamentary capacity, and

(c) it is or may be appropriate for the order to be made, and

(d) the applicant for leave is an appropriate person to make the application, and

(e) adequate steps have been taken to allow representation of all persons with a

legitimate interest in the application, including persons who have reason to expect a

gift or benefit from the estate of the person in relation to whom the order is sought.

23 Execution of will made under order

(1) A will that is made or altered by an order under section 18 is properly executed if:

(a) it is in writing, and

(b) it is signed by the Registrar and sealed with the seal of the Court.

(2) A will may only be signed by the Registrar if the person in relation to whom the order

was made is alive.

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Re Fenwick [2009] NSWSC 530

Facts

The Plaintiff is the older brother of the incapable person (“R”). The Plaintiff sought an order

granting leave under s19(1) of the Act and, at the same time, for a final order for a statutory

codicil under s18 of the Act.

R, aged 60 years, made a will in July 1987. In November 1987 he suffered a severe head

injury, causing severe and permanent cognitive impairment. The Plaintiff was appointed as

R’s financial manager and is his full time carer.

Medical evidence tendered at the hearing of the application demonstrated that R did not

have any understanding of his affairs or of testamentary issues. He was also incapable of

making a will and will never regain testamentary capacity.

R’s estate comprises real estate and cash and was substantial . The terms of his 1987 will

were:

his estate to pass to the Plaintiff;

if the Plaintiff predeceases R, his estate to pass to R’s children;

if R had no children, his estate was to go to his two cousins who survive him, and if

both, equally. (There was no gift over if R’s two cousins predeceased him.)

The evidence disclosed that the Plaintiff and two cousins all have life-threatening medical

conditions and it is quite possible that R will outlive all of them and his estate will go on

intestacy.

There was only one surviving relative who could take R’s estate in an intestacy, namely an

uncle now aged over 80 years. It is possible that the uncle will predecease R and the estate

will vest in the Crown as bona vacantia.

The Plaintiff’s application for a court authorised codicil was made to avoid consequences

resulting from an intestacy. The proposed codicil provided that if the Plaintiff and the two

cousins predecease R, an authorised trustee company will be appointed executor of the will

and there will be a gift over in favour of the children of the two cousins. The uncle was given

notice of the application and did not appear at the hearing .

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R is unmarried and has no children. He was not a member of any household other than that

of his parents. Before his accident, he often associated with his two cousins and their

children. The evidence also showed that R did not have any relationship with any member of

his extended family which could have supported an application for provision out of his estate

under Chapter 3 of the Act. He also did not have a regular association with any charity.

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Re Charles [2009] NSWSC 530

These proceedings concerned a minor given the pseudonym ‘Charles’. The application was

made by the Minister for Community Services. Charles was born in 1997 and has been

under the care of the Minister since 1998 following severe head injuries sustained by him at

the age of 4 months. The Defendants are his parents. His parents, although never criminally

convicted, are suspected of having deliberately inflicted the injuries on Charles which were

consistent with ‘Shaken Baby Syndrome’. The parents deny causing the injury and although

notified of the Minister’s application, did not appear at the hearing nor oppose the proposed

orders. Evidence tendered by the Minister demonstrated that Charles’ parents regularly

visited Charles and during the visits, they are highly attentive and affectionate to him.

In November 2000, the Victims Compensation Tribunal awarded Charles substantial

damages in respect of his injuries. The money is held on trust for him by the Public Trustee

until he reaches 18 years. The evidence demonstrated that Charles’ life expectancy is

diminished because of his medical conditions and that he will never have testamentary

capacity. Unlike R in Fenwick, Charles has never made a will because he is a minor, and will

be unable to make a will as an adult.

If Charles was to die intestate, his estate would go to his parents in equal shares under

s61B(5) of the Probate and Administration Act 1898 (NSW). The Minister’s view was that the

parents should not benefit from Charles’ intestacy and that his whole estate should go to

Charles’ sister. If she predeceased him, the Minister proposed that the estate be divided

equally between two charities which care for disabled children such as Charles. The

evidence showed that but for his parents and sister, Charles does not have any family

member who could have a claim on his testamentary bounty.

Leave under s19 of the Act to bring the application was granted in both case, and the

statutory will and/or codicil were made in the terms propounded by the applicants by the

making of a final order under s18 of the Act.

In Charles’ application His Honour said:

[250] I do not need to found my decision on whether it is reasonably likely that the parents, in

fact, caused Charles’ injuries. All I need to decide – and do decide – consistently with the

meaning of “reasonably likely” as discussed in paragraph [152], is that there is a fairly good

chance that a reasonable person, faced with such evidence as there is as to the cause of

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Charles’ injuries, would decide not to permit Charles’ estate to pass to the parents on

intestacy.

251 The next question is: is there a fairly good chance that a reasonable person, faced with

Charles’ circumstances, would make a will in favour of Charles’ sister, with gifts over to the

charities?

252 The closest person to Charles, apart from his parents, is his sister. His sister, who lives

with the parents, visits him regularly, about every two months and it appears that he enjoys

these visits. Charles has no family member beside his parents and his sister who could have

a claim on his testamentary bounty.

253 There is a carer who has devoted herself full time to looking after Charles for ten years.

As the evidence shows, Charles’ needs are extremely high. If anyone has a claim on

Charles’ testamentary bounty, it is she. A reasonable person would unquestionably

recognise that claim.

254 However, the carer has expressly disavowed any wish to share in Charles’ estate. I

suspect that she does so because she wants to make it clear that her devotion to Charles

has nothing to do with the expectation of financial reward. She is to be admired for her

generosity and devotion. But for her express disavowal, I would have required some

provision to be made for her in Charles’ statutory will.

255 As matters stand, however, I am satisfied that not only is it reasonably likely but it is

highly probable that a reasonable person faced with Charles’ circumstances would give the

whole of the estate to Charles’ sister.

256 If Charles’ sister predeceases him, there is no suggestion that any other person who

might take on intestacy, if his parents are excluded, has any claim on Charles’ estate which

could outweigh those of the two charities. They are both committed to caring for children

suffering from the disabilities which Charles has. Both have been actively involved in

Charles’ care. I conclude that there is a fairly good chance that a reasonable person, faced

with Charles’ circumstances, would choose to provide in his will for a gift over to those

charities.

257 There is no doubt that the Minister is an appropriate person to make this application.

258 There is no opposition to the statutory will proposed for Charles. There is no person

other than the sister, the parents and the carer who could possibly make a family provision

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claim on Charles’ estate. In any event, it would be premature to take such a putative claim

into consideration in a case such as this, for the reasons discussed in paragraph [199]. I am

satisfied that it is appropriate for an order under s 18 to be made.

Procedure

In considering the two applications, Palmer J identified the “best interests of an incapacitated

person and of those having a proper claim on his or her testamentary bounty” as the objects

of the jurisdiction which the Court exercises under Pt 2.2 Div 2 of the Act. His Honour

described the jurisdiction as “remedial and protective” and “is, accordingly, not governed by

the rules of adversarial litigation”.1

His Honour observed that “in the screening process for which the leave application is

designed, it is sufficient to demonstrate a reasonable likelihood of testamentary incapacity,

but in order to obtain a final order, a jurisdictional fact must be proved, i.e. that the subject

person actually lacks testamentary capacity.”2 His Honour described the section 19(2)

factors as a “check list” that “is neither exhaustive nor rigid”.3 He stated that the Court could

make an order dispensing with the information required in the check list if the information

“exists, or might exist, but it could have no bearing on the fate of the leave application or on

the application for a final order, so that to require it to be provided would entail needless

expenses and delay.”4

His Honour stated “the dispensing discretion will be exercised in the light of two fundamental

considerations:

- What is in the best interests of the incapacitated person and of those who have a

proper claim to his or her testamentary estate;

- What will facilitate the just, quick and cheap resolution of the real issue in the

proceedings: s56(1) Civil Procedure Act 1006 (NSW).

While the Court has a discretion in a leave application as to what information specified in

s19(2) it will require in the particular circumstances of the case, it has no such discretion in

relation to the information required by s22. All five categories of information specified must

1 At [132].

2 At [121].

3 At [123].

4 Ibid.

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be addressed, although it is clear that within some of those categories what the Court will

require is a matter of discretionary assessment.” 5

Section 22(b) of the Succession Act

After reviewing the English and Victorian authorities on statutory wills, Palmer J stated that in

interpreting and applying s22(b) of the NSW Act, the Court should not attempt to seek

guidance from earlier authority.

His Honour was particularly critical of unprincipled development of English authority, which

His Honour considered should be avoided in considering the NSW legislation. Further due to

differences in wording His Honour found that Victorian cases decided before the 2007

amendments in that State and South Australian legislation were of no real assistance in

construing the NSW legislation.

Rather, in interpreting s22(b) His Honour considered that the “Court should start ‘with a

clean slate; it must interpret the words of the section in the light of the problems and

difficulties which the legislation seeks to remedy, bearing in mind that legislation of this kind

should receive a benevolent construction”.6

In Re Fenwick, Palmer J formed the view that if R now had testamentary capacity, it is

“reasonably likely, in the sense of a fairly good chance, that R would have selected [his

cousin’s] children as the ultimate fall back beneficiaries”.7 His Honour classified R’s case as

a “lost capacity case in which R is unable to indicate whether, if the gifts in his present will

fail, he would prefer his estate to pass on intestacy.”8

In Re Charles, Palmer J found that Charles “never had, and never will have, testamentary

capacity”. His Honour described the case as a “nil capacity case” and decided the

application by a two step process:

(a) whether, and consistently with the meaning of ‘reasonably likely’ [in s22(b) of

the Act]… there is a fairly good chance that a reasonable person, faced with

5 At [124-125].

6 At [148] and cases cited therein.

7 At [215].

8 At [214].

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such evidence as there is to the cause of Charles’ injuries, would decide not

to permit Charles’ estate to pass to the parents on intestacy;9 and

(b) if so, whether there is a fairly good chance that a reasonable person, faced

with Charles’ circumstances, would make a will in favour of Charles’ sister,

with gifts over to the charities?10

Proof of testamentary incapacity

Palmer J affirmed that the test as to the lack of testamentary capacity is that enunciated in

Banks v Goodfellow (1870) LR 5 QB 549 11. In a leave application however, His Honour

stated “the threshold of proof of testamentary capacity, at the lowest, requires merely that

the applicant demonstrate that there is reason to believe that the subject person is

reasonably likely to lack testamentary capacity…the minimum threshold is appropriate only

in applications of real urgency. Absent urgency or some other compelling reason, an

applicant for leave should provide the best evidence available in the circumstances as to

lack of testamentary capacity”.12 His Honour concluded that “if the evidence as to permanent

testamentary capacity available at the second stage of the application still leaves the Court

in doubt, it need not merely refuse the order: it can take matters into its own hands”.13

The meaning of “reasonably likely” in s22(b)

In considering whether the proposed will is, or is reasonably likely to be, one that would have

been made by the person if he or she had testamentary capacity, Palmer J held that

“reasonably likely” for the purposes of s22(b) must be understood in one or other of its

nuances in different applications of s22(b).14 His Honour considered the various meanings

of “reasonably likely” “because those words in s22(b) will have to be applied in widely

different types of case.”15

His Honour identified three types of capacity cases: lost capacity case; nil capacity case and

pre-empted capacity case.

9 At [250].

10 At [251].

11 At [126].

12 Ibid.

13 At [131].

14 At [153].

15 At [150].

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Intention in a ‘lost capacity case’

Palmer J described the ‘lost capacity cases’ as those “where the incapacitated person is

adult, has formed family/other personal relationships, has made a valid will before losing

testamentary capacity, and is now said to have expressed some testamentary intention

regarding the circumstances sufficient to warrant an application for a statutory will or new

codicil”.16

In such cases, His Honour observed that “[T]here are two questions involved in a case of

alleged actual intention under s22(b): has the incapacitated person actually expressed the

intention attributed; would the person have held that intention if possessed of testamentary

capacity?”17 Whether the person has actually expressed the intention attributed is a question

of fact.18

His Honour identified another question: “is the expressed intention the product of the

incapacitated person’s free choice, or has some undue pressure or influence been applied?”

This question is better considered under s22(c).19

The other ‘lost capacity case’ is where an adult with established family/other personal

relationships has made a valid will but, since losing testamentary capacity, has not

expressed, or is incapable of expressing, any testamentary intention to deal with changed

circumstances … under the existing will. ..In such a case the Court may be satisfied as to

what the incapacitated person is “reasonably likely” to have done, in the light of what is

known of his or her relationships, history, personality and the size of the estate…”20

Where the person has never made a will in a lost capacity case, Palmer J indicated that “the

Court ought not to start with a presumed intention against intestacy. The Court must be

satisfied by the evidence that it is “reasonably likely” – in the sense of á fairly good chance” –

that the person would have made a will at some time or other, had not testamentary

incapacity supervened”.21 Further, His Honour said “In such cases there will generally be

evidence which will satisfy the Court that there is a fairly good chance that the incapacitated

16

At [154]. 17

At [158]. 18

At [155]. 19

At [159].

20 At [160 -161].

21 At [166].

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person either intended at some stage to make a will or else intended to die intestate. In the

latter case, the Court will not approve a statutory will. If there is insufficient evidence for the

Court to form any view one way or the other, then the applicant will have failed to discharge

the burden of proof under s22(b) and the application must be dismissed”…and “in a lost

capacity case, the Court’s concern under s22(b) is with the actual, or reasonably likely,

subjective intention of the incapacitated person”.22

Intention in a nil capacity case

Palmer J classified cases where a person has been born with mental infirmity or has lost

testamentary capacity well before ever being able to develop any notion of testamentary

disposition as the ‘nil capacity cases’.23 In such cases, “[t]he Court must start from the

position that, if there are significant assets in the minor’s estate, it should authorise some

kind of statutory will unless it is satisfied that what would occur on intestacy would provide

adequately for all the reasonable claims on the estate”.24 His Honour opined that “[t]he Court

can be satisfied by reference to common experience that if the incapacitated minor had

attained testamentary capacity and had assets of any significant worth, then it is reasonably

likely – in the sense of a fairly good chance – that, in common with most people, he or she

would have chosen to make a will”.25

If the Court is so satisfied, the “next question is: is it reasonably likely that the incapacitated

minor would have made the proposed will?”26 His Honour held that “[w]hether a proposed

will is ‘reasonably likely’ to have been made by a person who never had, and never will

have, the smallest testamentary capacity may only be answered as: ‘is there a fairly good

chance that a reasonable person, faced with the circumstances of the incapacitated minor,

would make such a testamentary provision?’ In a nil capacity case, as opposed to a lost

capacity case, this is the question which the words ‘reasonably likely’ in s22(b) require the

Court to answer. The considerations involved in the question are entirely objective”.27

22

At [169-170]. 23

At [171]. 24

At [172]. 25 At [173].

26 At [174].

27 At [176].

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Intention in a pre-empted capacity case

A pre-empted capacity case was described by Palmer J one in which an “incapacitated

person is still a minor but has lost testamentary capacity at an age which he or she had

formed relationships and had, or could reasonably be expected to have had, a fairly good

understanding of will-making, intestacy and their consequences”.28

His Honour held that in such cases, the Court must first be satisfied, “as a matter of fact, that

the asserted intention is truly that of the incapacitated person”.29

If the Court is satisfied that the asserted intention is truly that of the incapacitated person,

“the next question is whether it is reasonably likely that the person would have expressed

that intention if he or she had attained testamentary capacity... The question posed by

s22(b) is: is there a fairly good chance that the proposed statutory will reflects the

testamentary intention that this particular person, acting reasonably, would express if he or

she were at least 18 years of age? It is a question which contains both subjective and

objective elements”.30

In answering this question, the first question for the Court is: “is it reasonably likely that the

minor would have made any will at all rather than die intestate?”31 His Honour then identified

as the “second, and most substantial question… is it reasonably likely that the person would

have made the will which is now proposed?” This question, His Honour held, involves “both

subjective and objective considerations”.32

His Honour was of the view that in a pre-empted capacity case, “the Court is concerned

under s22(b) with a question which involves both subjective and objective consideration:

given what is known about the person’s relationships and history, is there a fairly good

chance that a reasonable person, weighing up those circumstances, would have made the

proposed statutory will”?33 If the Court is satisfied that the proposed statutory will qualifies

under s 22(b), the application for leave must then pass the s22(c) test (that is, the Court can

make a final order).

28

At [177]. 29

At [179]. 30

At [180]. 31

At [182]. 32

At [185]. 33

At [188].

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Observations on Future Practice and Procedure

Palmer J observed that in relation to future applications for court approved wills, it is

“desirable that they should be dealt with by the Court as expeditiously as possible and with

as little expense to the parties as possible”.34 Accordingly, His Honour suggested that in

straightforward and unopposed cases, such as the present cases, there is no need for the

applications to be heard in open Court or for Counsel to appear and make submissions.

Instead, “such applications can be dealt with on the papers by a Judge in Chambers,

pursuant to s71(d) or s71(f) Civil Procedure Act.”35

His Honour further observed that “if an application is, or may be, opposed it should be listed

and heard in open Court in the usual way. Likewise, if a Judge dealing with the matter in

Chambers has reservations about the quality of the evidence adduced, the matter can be

listed in Court so that the Judge can see and hear the witnesses whose affidavit evidence in

unsatisfactory. However, if the Judge merely has a query about a particular aspect of the

information provided, the query may be addressed by a requisition from the Registrar.”36

Palmer J indicated that there is no need for publication of reasons for a decision made in

Chambers in straightforward uncontested applications for a statutory will, as there “is no

public interest in publishing reasons for judgment in such cases”37 as the issues in such

applications only concern immediate family members.38 When an application is contested

and heard in open Court, then reasons for the decision will be required.39 His Honour also

commented that a practice note will be warranted once the Court receives further

applications for statutory wills.

Only time will tell whether the ‘issues in such applications’ will affect only immediate family

members of the incapacitated person. One must wonder whether charities or extended

family members will fall within the category of affected persons. It is suggested that the

decision is one which must be read by any legal practitioner considering bringing an

application for a statutory will in NSW.

WARNING: Ensure the Will is signed and sealed by the Registrar whilst the testator is alive.

34

At [262]. 35

At [263]. 36

At [264]. 37

At [265]. 38

Ibid. 39

Ibid.

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AB v CB & Ors [2009] NSWSC 680

This was a ‘pre-empted capacity’ case and another decision of Palmer J. The incapacitated

person was given the pseudonym ‘CB’.

CB was severely incapacitated at the age of 16 years. He had always been cared for solely

by his mother, the plaintiff ‘AB’.

CB’s father (FB) had been divorced from her mother for some years. Palmer J found that the

father had been estranged from the family and his daughter for quite some time.

The will proposed that the whole estate be left to the mother. If she did not survive CB, then

the estate was to pass to CB’s brother (SB) and, in default, 2 charities (with whom CB had

had an involvement with before she became incapacitated) were named as beneficiaries.

CB’s father was joined as a defendant to the proceedings and both he and his mother were

served with notice of the application. There was evidence that the father himself was

suffering from illness or infirmity and may not be able to himself respond appropriately to the

application.

Palmer J was satisfied that CB lacked testamentary capacity and would never regain

capacity. His Honour said:

[40] The will makes no provision for FB. As I have said, it is clearly the purpose of this

application to counter what would otherwise occur if CB died intestate: in those

circumstances, both AB and FB would take. The statutory will is designed to exclude FB

from testamentary provision so that the estate goes wholly to AB or wholly to SB or, in the

event they predecease CB, wholly to the two charities.

[41] It seems to me that there is, to quote the words which I have used in Re Fenwick, “a

fairly good chance” that the proposed will, in excluding FB, would represent the actual

intentions of CB if she were now of testamentary capacity and aware of the present

circumstances.

[42] I accept that, for whatever reason, FB has removed himself from responsibility and care

within the family, at least from the time that CB was aged nine. I accept that there has been

no normal relationship of father and daughter, at least in an on-going caring sense between

the two of them since that time.

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[43] It seems to me that there is a fairly good chance that the proposed will reflects what a

reasonable person in CB’s position would do to recognise in her testamentary provision the

fact that AB will have devoted the whole of the remainder of her life to the very onerous task

of caring for CB. A reasonable person in CB’s position would recognise that the

overwhelming moral responsibility which she had in regard to testamentary provision was in

favour of AB.

[44] It seems also to me that there is a fairly good chance, in the sense in which I have used

that phrase in Re Fenwick, that if AB predeceased CB, CB would recognise that her

testamentary obligation was directed towards SB and, if not to him, then to the two charities

with which she was actively involved.

[45] I do not think that one can say, having regard to the absence of FB in the family

involvement for now more than ten years, that there is a fairly good chance that CB would

wish to make any provision for him.

[46] As matters stand, therefore, I am persuaded that the proposed will is one that CB is

reasonably likely to have made.

Elayoubi, application of Wosif [2010] NSWSC 1004

This was an application under s 18 of the Succession Act 2006 (NSW) for a statutory will for

Mr Elayoubi. The application was made in a situation of some considerable urgency. By

reason of the disabilities which Mr Elayoubi suffered from birth, the evidence disclosed that it

was highly likely that he will not live for very much longer. The application was therefore,

both for leave to make the application under s 19 of the Act and, if that application was

granted, contemporaneously an application was made for approval of the will propounded by

the Plaintiff under s 18.

The Plaintiff was the brother of Mr Elayoubi, who was, at the date of the hearing, 25 years of

age. Mr Elayoubi suffered from spastic quadriplegia, severe scoliosis and extremely severe

cerebral palsy due to complications arising during his birth. It wa as a result of those

disabilities that it was quite clear that he lacked testamentary capacity and will never gain

testamentary capacity. He also never had testamentary capacity, so his Honour Palmer J

regarded the case as a “nil capacity” case.

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Mr Elayoubi had been unable to communicate all his life. It is impossible to know what likely

dispositions he would have made under his will, but the evidence pointed strongly to what a

person in his position would have done had he had testamentary capacity.

The estate would be in excess of $5 million as a result of damages awarded to Mr Elayoubi

in respect of the injuries arising from the circumstances of his birth. There was no dispute as

to the persons who might have a claim to his testamentary bounty. They comprised his

mother, his father and his brother, the Plaintiff.

Mr Elayoubi’s father has been estranged from the family for many years. He himself suffered

from schizophrenia, and his estate was subject to financial management by the New South

Wales Guardian and Trustee. The father was legally represented at the hearing. The father’s

wishes were taken into account by the Court in understanding the claims that are likely to be

made or would be made on the estate of Mr Elayoubi and to have regard to what a person in

his position would have done or is likely to have done had he had testamentary capacity.

Palmer J found that it seemed that the vastly superior claim to Mr Elayoubi’s testamentary

bounty would be that of his mother, who had looked after him with unfailing love and

attention from his birth and had coped with all of his severe disabilities. However, his Honour

found that the estate was sufficiently large to provide comfortably for his mother in the event

of his death, and something for his father.

The father had remarried and had no connection or little connection with Mr Elayoubi for

many years. His Honour found that the relationship between the father and son was very

possibly due to the father's own mental illness. His circumstances were that he was on a

pension and had another young family to look after.

Palmer J foundthat a person of testamentary capacity in the position of Mr Elayoubi would

likely have made some provision for his father, bearing in mind his father's disabilities and

his situation in life.

The Plaintiff proposed a will which gives $1 million on trust for the father for his life and

thereafter to the mother. The rest of the estate was to pass entirely to the mother. The draft

will provided that out of the $1 million given on trust for the father, capital expenditure was

authorised for the purchase of a home. The father submitted that rather than a life estate in a

lump sum with the benefit of a capital asset being purchased out of the fund, there should be

an outright legacy to the father in the sum of $1 million and that the NSW Trustee and

Guardian should have control of that fund.

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His Honour said at [10] – [12]:

“There is much to be said for that course, however I do not think that it sufficiently

recognises that the claim of the father on the estate is really one to his own maintenance

and care and not for the benefit perhaps of the beneficiaries of his estate. It seems to me

that the provision of a trust fund for life for the benefit of the father amply provides for his

own needs during that time, and indirectly of course for the needs of those who are

dependent upon him, but recognises that the vastly superior claim to Kaled's estate is that of

his mother.

I am satisfied that all of the information required by s 22 of the Act has been furnished to the

Court and that there is no other person who is likely to have any legitimate claim against the

estate other than the mother, the father and the brother. The draft will provides for a gift over

to the brother in circumstances which I think are entirely appropriate.

I therefore think that it is proper to proceed immediately both to grant leave to bring the

application under s 19 and to approve the terms of the will under s 18.”

Crawley, Re the Estate of [2010] NSWSC 618

This was another application for a court authorised will to be made for Ms Crawley. The

applicant was Ms Crawley’s brother-in-law, Mr McCosker.

At the time of the hearing, Ms Crawley was 93 years of age. She had never married nor had

children. She had no living parents, siblings, aunts or uncles. She lived in a nursing home.

Evidence from a psychiatrist showed, without any doubt, that Ms Crawley had severe

dementia. There could be no question that she had irretrievably lost testamentary capacity,

so that the requirement of s 22(a) of the Act was satisfied.

The evidence disclosed that Mr McCosker was married to Ms Crawley’s sister, Ethel, who

predeceased Ms Crawley. Mr McCosker was appointed as Ms Crawley’s attorney under a

General Power of Attorney granted in 1997 and since then he had managed all her financial

affairs.

Ms Crawley had made a will in February 1997. It was prepared by a solicitor and there was

no suggestion in the evidence that Ms Crawley lacked testamentary capacity at that time.

In that will, Ms Crawley appointed her sisters, Ellen and Ethel, as joint executors, gave $500

each to Mr McCosker and a named charity and gave the residue to Ellen and Ethel. There

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was no gift over in case, as it happened, her sisters pre-deceased her. Accordingly, if Ms

Crawley were to die without a statutory will being made, her estate would pass on intestacy

and, there being no next of kin who could take, it would vest in the Crown as bona vacantia.

Palmer J held that this was a “lost capacity” case in which an adult with established family or

other personal relationships had made a valid will but, since losing testamentary capacity,

had not expressed or was incapable of expressing, any testamentary intention to deal with

the changed circumstances: see Re Fenwick [2009] NSWSC 530, at [160].

The proposed will:

– appointed the plaintiff as executor if he survived Ms Crawley for thirty days;

– gave a bequest to the charity named in the 1997 will; and

– gave the residue of the estate to him, provided that he survived Ms Crawley

for thirty days.

His Honour had previously given leave to Mr McCosker pursuant to s 19(1) of the Act, to

make the application. Palmer J had considered the medical evidence as to Ms Crawley’s

testamentary capacity, Mr McCosker’s relationship to Ms Crawley, and to the other evidence

filed in relation to the matters required by s 19. However, he had not then proceed to make a

final order under s 18 because he was not satisfied by the evidence, as it then stood, that

the proposed will was “reasonably likely to be one that would have been made by [Ms

Crawley] if she had testamentary capacity”: s 22(b). In particular, he was not satisfied, as the

evidence then stood, that it was reasonably likely that Ms Crawley would have given the

whole of her estate to Mr McCosker when, in her 1997 will, she had given him a relatively

small bequest equal in amount to that which she gave to the charity.

Further evidence was filed by Mr McCosker. The charity was been served with the

Summons and all affidavits but had declined to appear. In the light of the evidence at the

hearing, his Honour was satisfied that:

Mr McCosker had a close family association with Ms Crawley while her sister, Mrs

McCosker, was alive and Mr McCosker had actively managed Ms Crawley’s affairs

for more than 10 years;

Mr Crawley’s 1997 will showed that she regarded the only persons having a claim on

her testamentary bounty as her sisters and Mr McCosker and that she favoured no

charitable purposes save those of the single named charity;

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it was reasonably likely that Ms Crawley did not make greater provision for Mr

McCosker in her 1997 will because she believed that her sister, Mrs McCosker, who

was considerably younger, would survive her and that Mr McCosker would benefit

from his wife’s inheritance;

it was reasonably likely that Ms Crawley intended to dispose effectively of the whole

of her estate by will and it is reasonably likely that she believed that her 1997 will

would achieve that result, having regard to the fact that she was much older than her

sisters;

it was reasonably likely that if Ms Crawley now had testamentary capacity, she would

not wish her estate to go to the Crown but would wish Mr McCosker, as the only

person with whom she has a surviving close family relationship, to take the major

benefit, with an increased benefit to the charity to reflect the present value of the gift

made by her 1997 will and a gift over of the residue to the charity if Mr McCosker

does not survive her by thirty days.

His Honour made an order approving the proposed will.

Application by Peter Leslie Kelso [2010] NSWSC 357 – Ball J

This was an application for an order authorising a Will to be made on behalf of a person

known as Hua Tippins (Ms Tippins).

Ms Tippins was, at the time of the hearing, in hospital and in a coma. She was on a life

support system which had been turned off. The evidence suggested that she could die at

any time.

Ms Tippins came to Australia in 2000 apparently to marry Mr Greg Tippins. She became an

Australian citizen and she lived with Mr Tippins for a number of years. During that time she

was the subject of domestic violence on a number of occasions. Ultimately, in February

2009, she sought refuge at a woman's refuge following physical violence against her which

caused her substantially to lose the use of her right arm. While there in August 2009, she

approached Mr Peter Kelso to obtain advice on a claim under the Victims Support and

Rehabilitation Act. Two claims were made. One was successful and led to a judgment in her

favour of approximately $9,000. The other claim was the subject of an appeal.

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It appeared that Ms Tippins had not made any Will. The consequence of that was that if she

were to die, Mr Tippins would inherit the whole of her estate on an intestacy. Apart from Mr

Tippins there appeared to be 2 other people or entities in Ms Tippins' life. The first was a

person known only as China Mum, who resided in China. The other was the women's refuge

she had been to. Ms Tippins had formed a close bond with the people working at that

refuge.

Mr Kelso, the solicitor acting for Ms Tippins in relation to her victims compensation claim,

made an application for court authorisation of a will for Ms Tippins.

His Honour was satisfied that Ms Tippins lacked testamentary capacity as she had suffered

severe brain injuries which made it unlikely that she would ever regain consciousness. Even

if she did, the evidence was that she had suffered damage to almost all areas of her brain

including language, memory and other areas of thinking. The likelihood of Ms Tippins

regaining testamentary capacity was low.

There was some suggestion in the material that Ms Tippins had a sister. However, the

evidence was that Ms Tippins never mentioned a sister to anyone at the refuge or to Mr

Kelso. His Honour held that he did not think that Ms Tippins had a sister who was alive.

The only possible applicants for a family provision order were the persons known as China

Mum and Mr Tippins. Ball J was of the view that it was highly unlikely that Mr Tippins would

have a claim under chapter 3 in view of his conduct.

His Honour held that the five matters in s22 were each satisfied. He held that Ms Tippins

was incapable of making a Will; that the proposed Will was, or was reasonably likely to be

one that would have been made by her if she had testamentary capacity; it was appropriate

for the order to be made; the applicant for leave was an appropriate person to make the

application; and adequate steps were taken to allow representation of all persons with any

interest in the application including persons who had reason to expect a gift or benefit from

the estate of the person in relation to whom the order was sought.

His Honour had some difficulty with the latter requirement namely, whether adequate steps

were taken to allow Mr Tippins and China Mum to be represented at the hearing. Ball J

concluded that the requirement was satisfied so far as Mr Tippins was concerned. Notice of

the application was given to him earlier that afternoon. In any event, Ball J found it difficult to

see how it could be said that he had a legitimate interest in the application given his conduct.

As to China Mum, it seemed the question of what adequate steps are was a question that

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needed to be judged in the particular context of the case. In this case, the evidence was that

China Mum was an elderly woman resident in China. The application was required to be

dealt with as a matter of urgency. In those circumstances, Ball J did not think that s 22(e)

required China Mum to be notified of the application before it could be dealt with.

His Honour approved the Will and ordered the solicitor’s costs to be paid out of the estate on

the solicitor/client basis.

Application of Sultana [2010] NSWSC 915

This was another application for leave to apply and approval for a statutory will.

The Plaintiff was the sister of the person for whom the will was sought, Vincent.

Vincent was born with Down's Syndrome and was in his forties. He had always been

incapable of looking after himself. His sister, the plaintiff had been appointed as Vincent's

financial manager. His Honour also had the opportunity to observe Vincent, who was in

Court today and he was satisfied that Vincent had, from birth, lacked testamentary capacity

and that he would never attain testamentary capacity. This was a “nil capacity” case.

Vincent's only asset was the sum of approximately $63,000 which was held in a term deposit

account in the Plaintiff’s name on trust for him. That money was originally provided by

Vincent's mother in order to enable Vincent to be looked after properly.

The uncontested evidence was that Vincent had always lived at home and had always been

looked after by his mother and sister. The family was not in good financial circumstances.

The members of the family who might have some claim to Vincent's estate if he were to die

intestate, in addition to his mother and sister, were Vincent’s father, 2 other sisters and a

younger brother. The evidence was that the father left the family some 20 years ago and had

not been involved with the family since then. The other siblings, likewise, had not been

involved with the family for well over 15 years and had not had any responsibility for looking

after Vincent. The evidence was that Vincent had been looked after solely by his mother and

sister.

Having regard to the size of Vincent's estate and the fact that that whole estate was derived

from a gift from his mother, His Honour did not think it appropriate that the other potential

beneficiaries of Vincent's estate be given notice of the proceedings. His Honour regarded

the case as “a very clear and simple case in which the small amount of this estate should go

to the mother in the first instance, if she survives Vincent, as she is in poor financial

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circumstances. If the mother predeceases Vincent, then the estate should go to the sister

who has looked after him for many years, Lina. I am quite satisfied that, had Vincent had

testamentary capacity, it is reasonably likely that this is the disposition that he would have

made.”40

The court authorised the Will.

Jones v Sherlock [2009] NSWSC 246 - Brereton J – Costs

In these proceedings the plaintiff’s mother sought a order approving a will for her son Mr

Jones.

She, however, sought leave to discontinue the proceedings, but sought an order other than

the usual consequential order that the plaintiff pay the defendant's costs.

The defendant was Mr Jones' natural father. He was served with notice of the application

and applied to be joined as a defendant, which order was made. In the course of the

proceedings he learnt that an adoption order had been made in respect of Mr Jones, which

had the effect of removing his parental rights and authorities and substituting those of the

adoptive father, the plaintiff's present husband.

The application was not unreasonably made by the plaintiff in the first place, and it was not

made in the course of ordinary adversarial litigation. The defendant chose to intervene in the

proceedings without being required to do so, and in that sense it was the defendant's choice

to incur costs by becoming involved and opposing the application.

Two factors were ultimately decisive. First, the Will substantially duplicated what would

transpire on intestacy in any event, so that the need for the application was at best dubious.

Second, and more significantly, the defendant's intervention had been totally vindicated, by

the ultimate decision of the plaintiff to seek leave to discontinue the proceedings. In those

circumstances, Brereton J considered the proper exercise of the discretion of the court was

that the court should not “otherwise order”. He granted leave to the plaintiff to discontinue

the proceedings and ordered that she pay the defendant's costs of the proceedings.

40

At [5].

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Levy Estate - Application of Samuels [2010] NSWSC 1014 - Court Approval of

Revocation of a Will

This is the only case so far on court-revocation of wills under s18 of the Act.

The Plaintiff sought an order revoking a will of Rebecca Levy, dated 4 May 2010, on the

ground that Mrs Levy lacked testamentary capacity at the time she made it.

The effect of the revocation of the 4 May 2010 was to leave, as operative, an earlier will

made at a time when there was no question as her testamentary capacity.

The beneficiary of the 4 May 2010 will was a Mr Ian Wheatley. The evidence showed that Mr

Ian Wheatley became a tenant of Mrs Levy in her home, some three years ago. There was

no relationship otherwise between Mrs Levy and Mr Wheatley; he was not related to her

either by blood or by marriage. They did not know each other, apparently, before he became

her tenant.

At the date of the hearing, the testator was 93 years old. She had been diagnosed as having

dementia and suffering from severe cognitive impairment. A psychiatrist and a clinical neuro-

psychologist had examined. They came to the conclusion that, although she appears at first

impression to be in possession of her faculties, a closer examination reveals a severe

cognitive impairment. Both come to the conclusion that, at the time she made the will in

question, she lacked testamentary capacity.

The subject will was prepared by a solicitor, but the solicitor did not give evidence as to her

own investigation of Mrs Levy's testamentary capacity. Palmer J formed the view that it was

possible that the solicitor, who had not met Mrs Levy previously, was deceived by the first

impression which apparently Mrs Levy gave of being in possession of her faculties, and did

not appreciate Mrs Levy’s true situation.

Mr Wheatley was served with notice of the court proceedings but did not appear. The

evidence of the Plaintiff's solicitor demonstrated that Mr Wheatley was fully aware of the

proceedings and had unequivocally declined to participate, saying that he wished to have

nothing to do with the subject will of Mrs Levy. Therefore, the only person who had an

interest in the subject will had disclaimed any such interest.

Palmer J was satisfied that it is appropriate to grant leave to make the application and

appropriate also to deal immediately with the substance of the application. He found that the

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requirement that Mrs Levy lacked testamentary capacity was amply satisfied by the medical

evidence and his order made orders revoking the subject will.

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2. Family Provision under the Succession Act 2006 – what has changed?

The Succession Amendment (Family Provision) Act 2008 commenced on 1 March 2009

(and was repealed the following day). The Amending Act is incorporated into the Succession

Act 2006 as Chapter 3, replacing the Family Provision Act 1982 (“the 1982 Act”). The

provisions of the 1982 Act continue to apply to applications in estates where the deceased

died before 1 March 2009.

Chapter 3 (the new provisions) apply in relations to estates of persons dying on or after 1

March 2009.

1. Six Categories of Eligibility

Under the 1982 Act there were four categories of eligible persons who could make a claim

against the estate of a deceased for further provision. Chapter 3 has introduced two new

categories, making a total of six categories of eligible persons.

Section 57 of the Succession Act sets out the categories of eligible persons:

(a) a person who was the wife or husband of the deceased person at the time of the

deceased person’s death,

(b) a person with whom the deceased person was living in a de facto relationship at the

time of the deceased person’s death,

(c) a child of the deceased person,

(d) a former wife or husband of the deceased person,

(e) a person:

(i) who was, at any particular time, wholly or partly dependent on the deceased

person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at

any other time, a member of the household of which the deceased person was a

member,

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(f) a person with whom the deceased person was living in a close personal relationship

at the time of the deceased person’s death.

Note. “De facto relationship” is defined in section 21C of the Interpretation Act 1987

(NSW).The change was brought about by the Relationships Register Act 2010 (NSW), which

now allows couples to register their relationship.

“Close personal relationship” is defined in s3(3) of the Act (and is in the same terms as

s5(1)(b) of the Property Relationships Act 1984.That is, a close personal relationship is

(other than a marriage or a de facto relationship) between two adult persons, whether or not

related by family, who are living together, one or each of whom provides the other with

domestic support and personal care.

A close personal relationship does not exist between two persons where one of them

provides the other with domestic support and personal care:

(a) for fee and reward, or

(b) on behalf of another person or an organisation (including a government or

government agency, a body corporate or a charitable or benevolent organisation):

s3(4) of the Act.

There is a clear requirement of co-residence to qualify for a “close personal relationship”.

The applicant must be living with the deceased as at the date of death. The relationship

must include the element of domestic support and personal care. These elements are not

defined in the legislation and reference will need to be made to the case law.

A person claiming to be in a close personal relationship must, in addition to proving eligibility

under section 57, satisfy the Court that there are factors warranting the bringing of the claim.

This position is to be contrasted with the earlier Act.

Chapter 3 recognises that a person in a de facto relationship will, in most cases, have a

stronger moral claim upon the deceased than a person in a close personal relationship.

Who is a child of the deceased?

Subsection 57(2) provides who is a child of a deceased person to include children born to a

deceased who was in a de facto relationship, or a domestic relationship within the meaning


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of the Property (Relationships) Act 1984, at the time of death, as a result of sexual relations

between the parties to the relationship, and includes:

(a) a child adopted by both parties,

(b) in the case of a de facto relationship between a man and a woman, a child of the

woman of whom the man is the father or of whom the man is presumed, by virtue of

the Status of Children Act 1996, to be the father (except where the presumption is

rebutted),

(c) in the case of a de facto relationship between 2 women, a child of whom both of

those women are presumed to be parents by virtue of the Status of Children Act

1996,

(d) a child for whose long-term welfare both parties have parental responsibility (within

the meaning of the Children and Young Persons (Care and Protection) Act 1998):

s57(2) of the Act.

What is a domestic relationship?

A “domestic relationship” is still as defined in s5 of the Property Relationships Act. It is:

(a) a de facto relationship, or

(b) a close personal relationship (other than a marriage or a de facto relationship)

between two adult persons, whether or not related by family, who are living together,

one or each of whom provides the other with domestic support and personal care.

A reference in this Act to a child of the parties to a domestic relationship is a reference to

any of the following:

(a) a child born as a result of sexual relations between the parties,

(b) a child adopted by both parties,

(c) where the domestic relationship is a de facto relationship between a man and a

woman, a child of the woman:

(i) of whom the man is the father, or

(ii) of whom the man is presumed, by virtue of the Status of Children Act

1996 , to be the father, except where such a presumption is rebutted,






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(c1) where the domestic relationship is a de facto relationship between two

women, a child of whom both of those women are presumed to be parents by

virtue of the Status of Children Act 1996 ,

(d) a child for whose long-term welfare both parties have parental responsibility

(within the meaning of the Children and Young Persons (Care and Protection)

Act 1998 ): s5(3).

Chapter 3 of the Succession Act provides separate categories for persons in a de facto

relationship with the deceased at the time of death and persons living with the deceased in a

“close personal relationship” at the time of death.

Family provision claims made under the Act in respect of an ‘eligible person’ who was living

in a de facto relationship with the deceased now use the definition of ‘defacto relationship’ as

defined in s21C(2) of the Interpretation Act 1987, which is:

(2) Meaning of “de facto relationship”

For the purposes of any Act or instrument, a person is in a de facto relationship with

another person if:

(a) they have a relationship as a couple living together, and

(b) they are not married to one another or related by family.

A de facto relationship can exist even if one of the persons is legally married to someone

else or in a registered relationship or interstate registered relationship with someone else.

(3) Determination of “relationship as a couple”

In determining whether 2 persons have a relationship as a couple for the purposes of

subsection (2), all the circumstances of the relationship are to be taken into account,

including any of the following matters that are relevant in a particular case:

(a) the duration of the relationship,

(b) the nature and extent of their common residence,

(c) whether a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for

financial support, between them,

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(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.

It is interesting to note that the Succession Amendment (Intestacy) Act 2009 (NSW), which I

will discuss later, introduces a concept of a “domestic partnership”, and a new definition of

“spouse” to mean a person who:

“(a) was married to the intestate immediately before the intestate’s death, or

(b) who was a party to a domestic partnership with the intestate immediately before

the intestate’s death”.

A “domestic partnership” is defined as a de facto relationship that has been in existence for a

continuous period of at least 2 years, or has resulted in the birth of a child: s105 of the Act.

This means that where a person leaves both a spouse and a de facto partner the intestacy

rules provide that the entitlement of the de facto partner will depend on the length of the de

Time Limits for Bringing Claims for Family Provision

The time for bringing a family provision claim is now 12 months from date of death: section

58(2) of the Act. Previously, it was 18 months. The Court still has power to extend the time if

it is satisfied that sufficient cause is shown. There is no longer a provision as appeared in the

1982 Act to allow extension of time by consent between the parties or for the Court to

shorten the time to bring an application.

An application for a family provision order may now be made whether or not there is a grant

of administration of the estate: s58(1). The option for an applicant to apply for a section 41A

grant is retained: s91.

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Factors the Court May Consider

Section 59 provides that the Court may make a family provision order if it is satisfied that:

(a) the person in whose favour the order is to be made is an eligible person, and

(b) in the case of a person who is an eligible person by reason only of paragraph (d), (e)

or (f) of the definition of eligible person in section 57—having regard to all the

circumstances of the case (whether past or present) there are factors which warrant

the making of the application, and

(c) at the time when the Court is considering the application, adequate provision for the

proper maintenance, education or advancement in life of the person in whose favour

the order is to be made has not been made by the will of the deceased person, or by

the operation of the intestacy rules in relation to the estate of the deceased person,

or both.

The Court may make a family provision order in favour of an eligible person in whose favour

a family provision order has previously been made in relation to the same estate only if:

(a) the Court is satisfied that there has been a substantial detrimental change in the

eligible person’s circumstances since a family provision order was last made in

favour of the person, or

(b) at the time that a family provision order was last made in favour of the eligible

person:

(i) the evidence about the nature and extent of the deceased person’s estate

(including any property that was, or could have been, designated as notional estate

of the deceased person) did not reveal the existence of certain property (the

undisclosed property), and

(ii) the Court would have considered the deceased person’s estate (including any

property that was, or could have been, designated as notional estate of the deceased

person) to be substantially greater in value if the evidence had revealed the

existence of the undisclosed property, and

(iii) the Court would not have made the previous family provision order if the

evidence had revealed the existence of the undisclosed property: 59(3).

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The ground for further provision have been enlarged by the amendments and may pose a

problem for the executor/administrator seeking a s95 release (formerly a s31 FPA release).

Applicants who have their claim refused may, in relation to the same estate, apply for

additional provision if, at the time of the refusal, there existed all the circumstances regarding

undisclosed property: s59(4).

The existence of this additional category is likely to cause some applications for additional

provision and defeat the purpose of the amendments of seeking to avoid an increase of

costs in family provision proceedings.

Matters to be considered by the Court

The new provisions set out in more detail the matters to be considered by the Court as to

whether a person is eligible and what, if any, order ought to be made.

Under s9 of the FPA, the Court was required to consider the following factors:

(a) contributions to the extent of property of the deceased and to the welfare of the

deceased;

(b) character and conduct of the plaintiff in relation to the deceased;

(c) circumstances existing before and after the death of the deceased; and

(d) other relevant factors.

“Other relevant factors” have been held to include:

(a) the nature and size of the estate;

(b) what provision (if any) was given under the will;

(c) the financial circumstances of the plaintiff;

(d) the ‘needs’ of the plaintiff for maintenance and advancement in life;

(e) the extent of the relationship between the plaintiff and the deceased;

(f) the extent to which the plaintiff has contributed to the deceased’s welfare;

(g) the extent to which the plaintiff has contributed to the acquisition, maintenance or

improvement of the deceased’s property, and

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(h) the extent of the claims of other persons on the estate: Singer v Berghouse (No. 2)

(1994) 181 CLR 201 at 208-211.

Section 60(2) sets out a list of matters under 16 sub-sections that the Court may consider.

Most of the matters listed are the type of matters the Court presently considers however,

there are some additional matters, such as any relevant Aboriginal or Torres Strait Islander

customary law.

(a) any family or other relationship between the applicant and the deceased

person, including the nature and duration of the relationship,

(b) the nature and extent of any obligations or responsibilities owed by the

deceased person to the applicant, to any other person in respect of whom an

application has been made for a family provision order or to any beneficiary of

the deceased person’s estate,

(c) the nature and extent of the deceased person’s estate (including any property

that is, or could be, designated as notional estate of the deceased person)

and of any liabilities or charges to which the estate is subject, as in existence

when the application is being considered,

(d) the financial resources (including earning capacity) and financial needs, both

present and future, of the applicant, of any other person in respect of whom

an application has been made for a family provision order or of any

beneficiary of the deceased person’s estate,

(e) if the applicant is cohabiting with another person—the financial circumstances

of the other person,

(f) any physical, intellectual or mental disability of the applicant, any other person

in respect of whom an application has been made for a family provision order

or any beneficiary of the deceased person’s estate that is in existence when

the application is being considered or that may reasonably be anticipated,

(g) the age of the applicant when the application is being considered,

(h) any contribution (whether financial or otherwise) by the applicant to the

acquisition, conservation and improvement of the estate of the deceased

person or to the welfare of the deceased person or the deceased person’s

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family, whether made before or after the deceased person’s death, for which

adequate consideration (not including any pension or other benefit) was not

received, by the applicant,

(i) any provision made for the applicant by the deceased person, either during

the deceased person’s lifetime or made from the deceased person’s estate,

(j) any evidence of the testamentary intentions of the deceased person,

including evidence of statements made by the deceased person,

(k) whether the applicant was being maintained, either wholly or partly, by the

deceased person before the deceased person’s death and, if the Court

considers it relevant, the extent to which and the basis on which the

deceased person did so,

(l) whether any other person is liable to support the applicant,

(m) the character and conduct of the applicant before and after the date of the

death of the deceased person,

(n) the conduct of any other person before and after the date of the death of the

deceased person,

(o) any relevant Aboriginal or Torres Strait Islander customary law,

(p) any other matter the Court considers relevant, including matters in existence

at the time of the deceased person’s death or at the time the application is

being considered.

The long list of matters has the potential to see longer affidavits in support and with an

increase in legal fees. However, the introduction of an approved form of family provision

affidavit and the comments of Palmer J in Carey v Robson & Anor; Nicholls v Robson and

Anor (No 2) [2009] NSWSC 1199, that is unlikely to be a problem. Those comments

concerned the conduct of family provision proceedings in light of the reforms.

The new form of the affidavit emphasises the economy in which evidence is to be given.

There is a focus on the plaintiff’s present circumstances and financial material. Strict

economy in giving evidence as to “moral obligation” is expected. Thus, whilst the affidavit

includes a paragraph where the Plaintiff can elaborate on relationship material, this should

be carefully considered when the affidavit is drafted and settled.

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Palmer J indicated in Carey that the evidence of a defendant in family provision cases

should display similar focus and economy and if what used to be called ‘;conduct

disentitleling” is to be raised against an applicant, the evidence should be direct, admissible

and free from gratuitous insult: at [34].

The Court will scrutinise the affidavit evidence and, if there is a recounting of events in the

family history which are of no real significance and throw no light on the resolution of the

issues in the case, the Court has power to address this in costs: [30].

In particular, if any affidavits include irrelevant material, the Court may order that the party

responsible for that affidavit pay:

(a) his/her own costs of preparing the affidavit and any time spent dealing with the affidavit in

Court; and

(b) the indemnity costs of other parties in responding to the affidavit: [35] and PNote [23].

Interim Orders for Provision

Section 62 provides that the Court may make an interim family provision order before it has

fully considered an application if it is of the opinion that no less provision than that proposed

in the interim order would be made in favour of the eligible person concerned in the final

order.

Once an interim family provision order is made, the section specifies that the Court must

proceed to finally determine the application for a family provision order by confirming,

revoking or varying the interim order. This means that the interim order must be finalised in

some way. If the proceedings resolve, the terms of the final orders, should include an

applicable order in respect of the interim order.

Section 92A of the Probate and Administration Act 1898 is also relevant in family provision

claims. This sections gives power to the legal personal representative to make maintenance

distributions to beneficiaries even though the LPR is on notice of an application seeking a

family provision order or intended application, where:

The person survives the deceased;

The person was wholly or substantially dependent upon the deceased at the time of

the deceased’s death; and

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Is a beneficiary under the Will and has survived for a period of 30 days or other

period for survival appearing in the Will.

Distributions and Protection of Administrator

A legal personal representative may now distribute the property in an estate if a period of at

least 3 months has expired after the deceased’s death, as well as having published the

notice of intention to distribute: s93(1) SA.

Section 93 provides some protection to executors and administrators who make distributions

before family provision claims are made or finalised, if the following procedure is followed:

Protection is afforded to a legal personal representative in respect of any applicant for a

family provision order where the LPR did not have notice and if:

(a) the distribution was made in accordance with section 93; and

(b) the distribution was properly made by the LPR.

The requirement that the distribution be “properly made” is new and there is no specification

as to when a distribution is “properly made”.

The amendments seem to change the existing position by restricting what constitutes

“notice” of an application. Notice of an application or intention to apply must be in writing

signed in accordance with the rule for signing of documents by a party in proceedings under

the Uniform Civil Procedure Rules 2005.

The amendments also carve out a further new exception regarding distribution by providing

that a LPR who distributes property for the purposes of providing those things immediately

necessary for the maintenance or education of an eligible person who was wholly or

substantially dependent on the deceased immediately before his/her death is not liable for

any such distribution that is properly made (s94(1)), irrespective whether or not the LPR had

notice at the time of the distribution of any application or intended application for a family

provision order.

Further, the amendments afford protection to a LPR regarding any applications of which s/he

did not have earlier notice in relation to distributions made not earlier than 12 months after

the deceased’s death.

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Rules of Court and Informal Proof

Section 102 provides dispensation with the rules of evidence for proving any matter provided

that the matter is not bona fide in dispute or in respect of a matter where formal proof would

give rise to expense or delay. Specific reference is made to allowing informal evidence to be

given in respect of property valuations or medical conditions of either the deceased or any

other person concerned with the proceedings.

Also under this section, power is given for the rules of Court to deal with matters relating to

the payment of costs in respect of proceedings and also the circumstances in which family

provision proceedings in respect of small estates may be dealt with in the absence of the

parties. In other words, the matter can be determined on the papers by an Associate Justice

in chambers.

Impact of Practice Note Supreme Court Equity 7

The Supreme Court introduced a practice note which commenced on 1 June 2009. The aim

of the practice note is to reduce the time taken for family provision proceedings to reach

hearing and reduce legal costs. The practice note applies to applications under the 1982 Act

and the Succession Act.

The Practice Note covers:

1. compulsory mediation in all family provision proceedings:s98.

2. online case management;

3. a standard form of affidavit is prescribed for plaintiffs.

The Practice Note requires the plaintiff to serve with the Summons the supporting affidavit

and proposed consent orders.

If the time for bringing proceedings is about to expire and proceedings are brought to

preserve the plaintiff’s rights, then the supporting affidavit does not need to be filed with the

Summons. The Plaintiff must however serve an affidavit setting out the reasons why the

service of the evidence should be deferred.

Annexure 1 of the practice note prescribes the form of the plaintiff’s affidavit.

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Strict proof of certain matters is no longer required. This is a clear attempt by the Court to

minimise costs. Evidence of the value of real estate can be adduced by way of a real estate

agent’s market appraisal, newspaper advertisements and website information.

Plaintiffs and beneficiaries can, in their affidavits, give an estimate of the cost of

refurbishments and renovations to property, and the cost of items they wish to acquires,

such a vehicles or whitegoods. They can also give evidence of any medical condition they

are suffering and an estimate of the future costs to them of the treatment and medication.

Details of the matters that the defendant’s affidavit must contain are also included in the

practice note.

Consent Orders and On Line Hearings

The Plaintiff is required to serve a draft copy of proposed Consent Orders on the Defendant

at the time of serving the Summons and Affidavit. The Summons will give a return date for

directions before the Court. The consent orders should provide a timetable for the service of

the defendant’s evidence, plaintiff’s evidence in reply, and referral of the matter to mediation.

Where parties are legally represented, the Practice Note allows for online hearings after the

first directions hearing. The first directions hearing may also be conducted online if the

parties agree and send an email not less than 7 days before the date of the directions

hearing.

Users need to register in order to use the on-line ECM system.

Notional Estate

Notional estate orders allow the Court, when making an order for provision, to access

property which, on the death of the deceased, ceases to be the property of the deceased

because of an act done by the deceased within certain time limits or by reason of a change

of ownership of the property upon the death of the deceased.

Notional estate provisions in effect, claw back property of the deceased to make it available

to meet a family provision order and commonly applies to property which is no longer in the

name of the deceased and either no, or less than full, consideration was given.

In considering whether property is to be designated as notional estate, the Court considers

the following:

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1. has a relevant property transaction occurred? (section 75)

2. has the relevant property transaction taken plane within, on or after the death of the

deceased? (section 80)

3. should an order be made (consider sections 83, 87, 88 and 89 of the Act).

The phrase “relevant property transaction” is newly introduced into the Act and replaces the

concept of a “prescribed transaction”.

“Property”, for the purposes of notional estate, is defined as “any valuable benefit”. Hence it

is not limited to real property, which is what people commonly tend to think notional estate

refers to.

The transaction does not have to necessarily result in a change in ownership of property. It

is enough that valuable benefit becomes held by a person other than the deceased.

Section 75 provides that a ‘relevant property transaction’ is one where a person does or

omits to do an act as a result of which property is deemed to be held by another person or

subject to a trust.

Section 76(2) sets out examples of such transactions:

(a) if a person is entitled to exercise a power to appoint, or dispose of, property that is

not in the person’s estate and does not exercise that power before ceasing (because

of death or the occurrence of any other event) to be entitled to do so, with the result

that the property becomes held by another person (whether or not as trustee) or

subject to a trust or another person (immediately or at some later time) becomes, or

continues to be, entitled to exercise the power,

(b) if a person holds an interest in property as a joint tenant and the person does not

sever that interest before ceasing (because of death or the occurrence of any other

event) to be entitled to do so, with the result that, on the person’s death, the property

becomes, by operation of the right of survivorship, held by another person (whether

or not as trustee) or subject to a trust,

(c) if a person holds an interest in property in which another interest is held by another

person (whether or not as trustee) or is subject to a trust, and the person is entitled to

exercise a power to extinguish the other interest in the property and the power is not

exercised before the person ceases (because of death or the occurrence of any other

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event) to be so entitled with the result that the other interest in the property continues

to be so held or subject to the trust,

(d) if a person is entitled, in relation to a life assurance policy on the person’s life under

which money is payable on the person’s death or if some other event occurs to a

person other than the legal representative of the person’s estate, to exercise a

power:

(i) to substitute a person or a trust for the person to whom, or trust subject to

which, money is payable under the policy, or

(ii) to surrender or otherwise deal with the policy, and the person does not

exercise that power before ceasing (because of death or the occurrence of

any other event) to be entitled to do so,

(e) if a person who is a member of, or a participant in, a body (corporate or

unincorporate), association, scheme, fund or plan, dies and property (immediately or

at some later time) becomes held by another person (whether or not as trustee) or

subject to a trust because of the person’s membership or participation and the

person’s death or the occurrence of any other event,

(f) if a person enters into a contract disposing of property out of the person’s estate,

whether or not the disposition is to take effect before, on or after the person’s death

or under the person’s will or otherwise.

Section 77 provides that where the relevant property transaction involves a contract and

valuable consideration in money’s worth is not given for the deceased becoming a party to

the contract, the transaction will be deemed to be entered into and take effect at the time the

contract is entered into.

Section 79 provides that distributed estate can be designated as notional estate. It is usual

to join the holder of the distributed estate as a defendant to the proceedings.

Section 80 provides that the Court may, on the application of an applicant or by its own

motion, make an order designating property as notional estate where the property is the

subject of a relevant property transaction and took effect within 3 years before death and

was entered into with the intention of limiting provision for the applicant out of the estate; or

which took effect within one year before death at the time the deceased had a moral

obligation towards an eligible person.

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Section 81 deals with “subsequent relevant property transactions”. It applies, for example, to

cases where the deceased gives away real estate, the recipient then sells the property and

gives the sale proceeds to a third party. The section allows the Court to order the proceeds

of sale held by the third party to be designated as notional estate.

Section 82 allows the Court to designate as notional estate property that has been

transferred into the hands of a person who has subsequently died where the property has

come into the hands of the person’s legal personal representative or hs been distributed

from their estate. The explanatory note suggests that the section is intended to overcome

the decision in Prince v Argue [2002] NSWSC 1217 (Macready AsJ, 20 December 2002);

which the Court appears to accept (see comments of Ward J in Stern v Sekers; Sekers v

Sekers [2010] NSWSC 59 at [179].

Prince v Argue was the hearing of 5 proceedings involving various claims on the estates of 2

deceased persons who were husband and wife. Two of the proceedings were family

provision claims on the wife’s estate (who died after her husband). One case was a claim by

the child of the husband.

The husband and wife owned a property in which they lived and upon the husband’s death,

the house passed by survivorship to the wife. At the time of hearing, there was no evidence

indicating that there were any assets in the husband’s estate.

It was submitted that there was a prescribed transaction as a result of the failure of the

husband to sever the joint tenancy. However, the “disponee” in relation to that transaction

was the wife who had died before the commencement of the proceedings.

Macready AsJ dismissed the claim because the FPA only allows the Court to make an order

designating as notional estate of the deceased property which is held by, or on trust for, the

disponee. Given the wife was dead, there no relevant “disponee”.

It can be seen that s82(2) overcomes that problem.

Section 83 restricts the Court from making an order designating property as notional estate

unless the prescribed transaction involves the estate being disadvantaged or where it

involves the power of appointment not exercised, that the omission would have benefited the

estate or eligible person if exercised or involves an omission to exercise a right which if

exercised would benefit the estate or eligible person.

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Section 84 provides that the effect of an order designating property as notional estate is to

extinguish the rights of the person holding that property so that any order may be enforced

against the holder of the distributed estate.

Section 87 provides that the Court must not make a notional estate order unless it has

considered:

(a) the importance of not interfering with reasonable expectations in realtion to the estate;

(b) the substantial injustice and merits in making or refusing to make an order; and

(c) any other matter considered relevant.

Section 88 provides that the Court must not make a notional estate order unless the Court is

satisfied that the actual estate of the deceased is insufficient to allow the making of an order

or thet other circumstances of other eligible persons are such that provision should not be

made out of the actual estate.

A notional estate order will not be made in excess of what is required to satisfy the making of

provision.

Section 89 sets out the matters the Court must have regard to when determining what

property should be designated as notional estate:

(a) the value and nature of the property;

(b) the value and nature of any consideration given in a relevant property transaction;

(c) any changes in value of property of the same nature;

(d) income that could have been derived on property of the same nature;

(e) any other matter it considers relevant in the circumstances.

Injunctions

The amendments include a power to make an order restraining the final or partial distribution

of the estate (other than a distribution under section 94(1) of the SA or s92A of the Probate

& Administration Act 1898, pending its determination of a family provision application:

s62(3).

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This provision makes explicit a Court’s power that the Court has ordinarily exercised under

the general law, where appropriate (see for example Packo v Packo (1989) 17 NSWLR 316).

Nature of Orders

The amendments introduce some formality to the process of making family provision orders

by specifying the matters that an order must include: s65(1) SA.

(1) A family provision order must specify:

(a) the person or persons for whom provision is to be made, and

(b) the amount and nature of the provision, and

(c) the manner in which the provision is to be provided and the part or parts of the

estate out of which it is to be provided, and

(d) any conditions, restrictions or limitations imposed by the Court.

(2) A family provision order may require the provision to be made in one or more of the

following ways:

(a) lump sum of money,

(b) by periodic payments of money,

(c) by application of specified existing or future property,

(d) by way of an absolute interest, or a limited interest only, in property,

(e) by way of property set aside as a class fund for the benefit of 2 or more persons,

(f) in any other manner the Court thinks fit.

(3) If provision is to be made by payment of an amount of money, the family provision order

may specify whether interest is payable on the whole or any part of the amount payable for

the period, and, if so, the period during which interest is payable and the rate of the interest.

Small Estates

Another way of addressing concerns about disproportionate costs is by introducing a

concept of a “small estate”, that is, an estate the value of which is less than $750,000 or as

prescribed by the Regulations: s142(4) SA.

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Section 142 specifies that rules of court may be made in relation to matters such as:

(a) the costs payable out of small estates; and

(b) the circumstances in which family provision proceedings in respect of small estates may

be dealt with in the absence of parties.

Practice Note SC Eq 1 already identifies the prospect of cost capping orders in small

estates.

Recent developments in Court procedure for the approval of releases of rights to

bring family provision claims

Applications for approval of either an inter vivos release or a release in relation to the estate

of a deceased person, are now dealt with in s95 SA (formerly s31A FPA).

With the recent appointment of Associate Justice Hallen, his Honour has introduced a new

procedure for applications seeking court approval of a release.

Family provision releases are now governed by s95 of the Act. The evidence in support of

the application must be filed before the proceedings are referred to the Associate Justice for

hearing. A form of checklist has been introduced, both for inter vivos and non-inter vivos

release. The relevant checklist should be completed by the parties and handed up to the

family provision Registrar at the time of seeking a referral.

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3. The New Intestacy Laws and

Overview of the Succession Amendment

(Intestacy) Act 2009

INTRODUCTION

The Succession Amendment (Intestacy) Act 2009 commenced on 1 March 2010. It repealed

Division 2A of the Probate and Administration Act 1898.

The new provisions are s101 – 140 of the Succession Act 2006.

The sections apply in relation to the estates of all persons dying on or after 1 March 2010.

A useful way of understand the operation of the amendments is to consider the following

examples (which are sourced from a table prepared by the NSW Public Trustee & Guardian

in a publication of the Law Society of SNW entitled “The Succession Amendment (Intestacy)

Act 2009”).

Entitlement on intestacy

(a) The intestate is survived by a spouse but no issue

Section 104 defines “spouse” as a person who is married to the intestate immediately before

the intestate’s death or who was a party to a domestic relationship with the intestate

immediately before the intestate’s death.

A “domestic partnership” is defined as a relationship (other than marriage) between the

intestate and another person that is a de facto relationship and has been in existence for a

continuous period of at least 2 years or has resulted in the birth of a child: s105.

Section 107 defines “Survivorship” as imposing a requirement that the relevant person

survives the intestate by at least 30 days or, if the person is born after the intestate’s death,

after a period of gestation in the uterus that commenced before the intestate’s death and the

person survives the intestate for at least 30 days after birth.

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(b) The intestate is survived by a domestic partner but no issue

The domestic partner takes the whole estate.

(c) The intestate is survived by a spouse and a domestic partner but no issue

The estate is shared between the spouse and domestic partner. The estate is divided

equally if the personal representative has given the spouse and the domestic partner a

notice stating that the personal representative may distribute the property equally unless

within 3 months after the date of the notice the spouse and domestic partner enter into a

distribution agreement and submit it to the personal representative or, at least one of them

applies to the Supreme Court for a “Distribution Order”: s125(1)(c) & s125(2).

A distribution agreement is a written agreement between the spouses: s125(1)(a).

A “Distribution Order” is an order made by the Court.

If an application for a distribution order is made to the Court, the Court may order the estate

to be distributed in any way that it considers just and equitable: s126(1). This means the

Court may order the entire estate to be distributed to one spouse to the exclusion of all

others.

(d) The intestate is survived by a spouse and more than one domestic partner but no

issue

The situation is the same: the estate will be divided equally between the spouse and

domestic partners if the notice under s125(2) is given and there is no distribution agreement

or application for a Distribution Order.

(e) The intestate is survived by a spouse and issue of the intestate and the spouse

The spouse receives the whole estate: s112.

(f) The intestate is survived by a domestic partner and the issue of the intestate and the

domestic partner

The domestic partner receives the entire estate: s112.

(g) The intestate is survived by a spouse and one or more domestic partners and issue

of the spouse and the intestate

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The spouse and domestic partner will share the whole of the estate equally or pursuant to a

distribution agreement/order: s123.

(h) The intestate is survived by a spouse and 1 or more domestic partners and issue of

the domestic partner and the intestate

The spouse and domestic partner/s will share the estate equally or as per a distribution

agreement/order: s123.

(i) The intestate is survived by a spouse and 1 or more domestic partners and issue of

the spouse and the intestate, and the issue of the domestic partner and the intestate

The spouse and domestic partner/s will share the entire estate equally or as per a

distribution agreement or order: s123.

(j) The intestate is survived by a spouse and 1 or more domestic partners and issue of

the intestate and another relationship, not being that of the spouse or the domestic

partner

The spouse and domestic partners share the statutory legacy of $350,000, CPI adjusted

from December 2005 with interest on such part of the legacy as is outstanding one year after

death of the intestate, personal effects and one half of residue: “spousal entitlement”.

The spouse and domestic partners share this equally if the relevant notices are given and

there is no distribution agreement or distribution Order to the contrary. The remaining half

share of residue in the estate is divided equally between all issue irrespective of whether

they are issue produced by the relationship between the intestate and a spouse, the

intestate and a domestic partner or some other relationship. If a child has predeceased the

intestate leaving issue who survive the intestate that issue takes the deceased child’s share.

Hence, if a child predeceased the intestate leaving 2 grandchildren of the intestate, each of

whom has survived the intestate, they take their parents’ share equally.

“Personal effects” has replaced the old definition of “household chattels”. The new definition

is wider and incorporates all of the deceased’s personal tangible property subject to specific

exclusions including, for example, business property, cash and gold bullion.

The new definition includes categories which were previously excluded under the old rules,

such as the deceased’s motor vehicle, jewellery and original paintings.

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(k) The intestate is survived by a spouse and 1 or more domestic partners and issue of

the spouse and the intestate and issue of the domestic partner and the intestate, and

issue of the intestate and another relationship

The estate is distributed as above.

(l) The intestate is not survived by a spouse or domestic partner but is survived by issue

The estate is divided equally between the issue. If any of the issue predeceased the

intestate leaving issue that issue takes their parents’ share provided that the relevant issue

survived the deceased.

(m) The intestate is not survived by a spouse or domestic partner but is survived by issue

of the domestic partner

The estate is distributed between the issue in the same manner set out above.

(n) The intestate is not survived by a spouse or domestic partner but by the issue of

another relationship not being that of the spouse or domestic partner

The issue take as above.

(o) The intestate is not survived by a spouse or domestic partner but is survived by 1

child of a spouse and 1 child in utero of a domestic partner

If the child of the spouse survives the intestate by 30 days in accordance with the normal

provisions about survivorship, that child will take half of the estate. If the child in utero

survives 30 days after birth he or she will receive the other half of the estate. If the child does

not so survive, his/her half will go to the child of the spouse.

(p) The intestate is not survived by spouse, domestic partner but is survived by 1 child of

a spouse and later by 1 child conceived by IVF after the death of the intestate

The child takes the entire estate. A child must be in utero before the death of the intestate to

take.

(q) The intestate is not survived by spouse or domestic partner or issue but by parents

The estate is equally divided between the parents.

(r) The intestate is not survived by a spouse, domestic partner or issue but leaves

brothers and sisters

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The brothers and sisters take the estate in equal shares. If a brother or sister predeceased

the intestate, then his/her share will be taken by such of their children or other issue who

survive the intestate by 30 days.

(s) The intestate is not survived by a spouse, domestic partner, issue, parent, brother or

sister or issue of a brother and sister but leaves grandparents

The estate is shared equally between the surviving grandparents.

(t) The intestate is not survived by a spouse, domestic partner, issues, parents, brothers

or sisters, issue of brothers and sisters, grandparents but is survived by aunts and

uncles

The aunts and uncles who survive the intestate share the estate equally. If an uncle or aunt

does not survive the intestate and leaves children, then that child or children are substituted

in the shoes of the deceased parents. There is the chance that first cousins may take on

intestacy.

Major differences from existing legislation

Reduction in provision for children

The legislation has the effect that children do not take on intestacy unless there is issue of a

non-surviving spouse, eg a divorced spouse. In this case, all issue take. This is to be

contrasted to the previous legislation where, if the intestate leaves a spouse and issue, the

spouse receives the household chattels, the prescribed amount and one half of the estate

with the residue passing to issue.

The rights of spouses to the principal residence – the changes

Section 61B of the Probate & Administration Act 1898 permitted a surviving spouse to

require the Administrator to hold a dwelling house which at the time of the intestate’s death

was the principal place of residence of the intestate and the spouse. The right applied

irrespective of whether the value of the dwelling house exceeded the value of the spouses’

entitlement on intestacy.

Right of spouse to acquire property from the intestate’s estate

If an intestate is only survived by one spouse (S114) that spouse may elect to acquire

property from the intestate’s estate at its market values as determined by a registered

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valuer. The price is satisfied first from money to which the spouse is entitled from the

intestate’s estate. If a spouse’s entitlement is insufficient the balance must be paid at or

before the time of the transfer.

Introduction of a requirement of a 2 year relationship or the existence of a child of that

relationship before a person in a domestic partnership is equated to a spouse

Under section 32G of the Probate & Administration Act 1898, the de facto spouse at the date

of the intestate’s death was equated to a spouse unless the context of the legislation

otherwise required.

Section 104 now requires a de facto spouse to have been in a de facto relationship for a

continuous period of 2 years or alternatively, for there to be a child born to the relationship,

before a de facto partner is equated to the status of a spouse. If the de facto relationship is

less than 2 years duration, or there is no child of the relationship, the domestic partner must

rely upon their family provision rights.

Abolition of distinction between brothers and sisters of the half and whole blood

Section 1010 defines a brother or sister as a person who has one or both parents in

common.

Thus, the difference between brothers and sisters of the half and full blood are abolished.

Previously, s61D(6) of the Probate & Administration Act 1898 gave priority to brothers and

sisters of the whole blood of the intestate.

Bona Vacantia

If there is no person entitled to the estate, it passes to the State: s136.

Section 137 confers upon the State a discretion to make provision out of property to which it

becomes entitled. The discretion may be exercised in favour of a dependant of the intestate,

any persons who have, in the Minister’s opinion, a just or moral claim on the intestate, or any

organisation or person for whom the intestate might reasonably be expected to have made

provision. This would appear to encompass charities with whom the intestate had an

association.

Application for a waiver of the State’s rights to an intestate estate is made in writing to the

Crown Solicitor. The provision appears to be wider than s61(8) of the Probate &

Administration Act 1898 which gave the Crown, without prejudice to any other powers, a

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power to provide out of property devolving on it as bona vacantia for dependants of the

intestate and any other persons for whom the intestate might reasonably have been

expected to make provision for.

Estates of indigenous persons and other important changes

Section 101 defines an indigenous person as a person who is of Aboriginal or Torres Strait

Islander descent, and identifies and Aboriginal person or Torres Straight Islander and is

accepted as an Aboriginal person by an aboriginal community or a a Torres Straight Islander

by a Torres Straight Island community.

Section 133 empowers the Court to order that the intestate estate of indigenous persons

shall be distributed in accordance with that order. Such an order operates to the exclusion of

the provisions of the Act governing intestate estates.

In formulating a distribution order the court must have regard to any scheme submitted by

the applicant, the laws, customs, traditions and practice of indigenous communities or

groups to which the intestate belonged.

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Multiple

spouses with

no surviving

children

Multiple

spouses with

surviving

children from

current

relationships

Multiple

spouses with

surviving

children from

prior

relationships

Multiple

spouses with

surviving

children from

current and

prior

relationships

Spouses The entire

estate is divided

between the

spouses in

accordance with

Div. 3 of the Act

The entire estate

is divided

between the

spouses in

accordance with

Div. 3

Personal effects;

The Statutory

Legacy; and

A half-share in

the balance of

the intestate

estate are

divided between

the spouses in

accordance with

Div. 3

Personal effects;

The Statutory

Legacy; and

A half-share in

the balance of

the intestate

estate are

divided between

the spouses in

accordance with

Div. 3

Children N/A Nothing A half-share in

the balance of

the intestate

estate

A half-share in

the balance of

the intestate

estate is divided

between ALL the

deceased’s

children

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4. Informal Wills under section 8 of the Succession Act 2006

INTRODUCTION

The phrase ‘informal wills’ is used to refer to wills which do not satisfy the formal

requirements of a will. They are usually documents upon which the testamentary intentions

of the deceased appear and there is evidence that shows that it was more probable than not,

that the deceased intended the document to constitute his/her will.

LEGISLATIVE PROVISIONS

Section 8 of the Succession Act 2006 provides:

“Dispensing with requirements for execution, alteration or revocation of a will

8 When may the Court dispense with the requirements for execution, alteration or

revocation of wills?

(1) This section applies to a document, or part of a document, that:

(a) purports to state the testamentary intentions of a deceased person, and

(b) has not been executed in accordance with this Part.

(2) The document, or part of the document, forms:

(a) the deceased person’s will—if the Court is satisfied that the person

intended it to form his or her will, or

(b) an alteration to the deceased person’s will—if the Court is satisfied that

the person intended it to form an alteration to his or her will, or

(c) a full or partial revocation of the deceased person’s will—if the Court is

satisfied that the person intended it to be a full or partial revocation of his or

her will.

(3) In making a decision under subsection (2), the Court may, in addition to the

document or part, have regard to:

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(a) any evidence relating to the manner in which the document or part was

executed, and

(b) any evidence of the testamentary intentions of the deceased person,

including evidence of statements made by the deceased person.

(4) Subsection (3) does not limit the matters that the Court may have regard to in

making a decision under subsection (2).

(5) This section applies to a document whether it came into existence within or

outside the State.

Section 8 deals with the court’s dispensing power in relation to will formalities regarding

execution, alteration or revocation if the court is satisfied that the deceased intended the

document, or part of the document, to:

Constitute his/her will;

Amend his/her will;

Revoke, partially or fully, his/her will.

What are the ‘will formalities’?

Section 6 of the Act deals with the way in which a will should be validly executed. It provides:

(1) A will is not valid unless:

(a) it is in writing and signed by the testator or by some other person in the presence of

and at the direction of the testator, and

(b) the signature is made or acknowledged by the testator in the presence of 2 or more

witnesses present at the same time, and

(c) at least 2 of those witnesses attest and sign the will in the presence of the testator

(but not necessarily in the presence of each other).

…

(6) This section does not apply to a will made by an order under section 18 (Court may

authorise a will to be made, altered or revoked for a person without testamentary

capacity).

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Section 6 applies to wills made on or after 1 March 2008. The section repeals sections 7 and

9 of the WPAA. Those sections still apply to wills made before 1 March 2008, whether the

testator dies before, on or after that date.

Section 18A of the Wills, Probate & Administration Act 1898 (WPAA)

The former provision dealing with informal wills, and which would be familiar to most people,

is s18A (1), which states:

“A document purporting to embody the testamentary intentions of a deceased person, even

though it has not been executed in accordance with the formal requirements of this Act,

constitutes a will of the deceased person, an amendment of such a will or the revocation of

such a will if the Court is satisfied that the deceased person intended the document to

constitute the person’s will, an amendment of the person’s will or the revocation of the

person’s will.

S18(2) In forming its view, the Court may have regard (in addition to the document) to any

other evidence relating to the manner of execution or testamentary intentions of the

deceased person, including evidence (whether admissible before the commencement of this

section or otherwise) of statements made by the deceased person.”

Section 8 of the Succession Act applies to wills whether made before, on or after 1 March

2008, if the testator dies on or after 1 March 2008. Where the testator dies on or after 1

November 1989 and before 1 March 2008, s18A of the WPAA continues to apply. (Section

18A was repealed by the Succession Act 2006.)

Background

Section 18A of the WPAA came into effect on 1 November 1989 following the

recommendations of the NSW Law Reform Commission in its Report Wills – Execution and

Revocation (LRC 47, 1986) in Ch 6.

The purpose behind s18A was for Parliament to acknowledge the injustices which the strict

application of the law as to will formalities had caused in particular cases. Parliament

accepted, by inference, the Law Reform Commission’s rebuke that “the rule of literal

compliance can produce results so harsh that sympathetic courts are inclined to squirm”.

Section 18A was remodelled on s12(2) of the Wills Act 1936 (SA).There were some

differences however between the 2 provisions. In particular, the SA provision requires a

criminal onus of proof namely, that the Court must be satisfied that there can be no

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reasonable doubt that the deceased intended the document to constitute a will. The NSW

provision only requires a civil standard of proof. Namely, that on balance, it was more

probable than not that the deceased intended the document to constitute a will.

Regardless of the differences, South Australian case law has been referred to, and applied,

in NSW s18A cases. Of course, the cases on s18A will be relevant to cases on s8 of the SA.

Tests & procedure for admitting informal wills

A document (or part of a document) that purports to state testamentary intentions;

and

Which forms the deceased’s will (provided the Court is satisfied the deceased

intended it to form his will).

What is a document?

In comparison with s18A of the WPAA, s8 expands the court’s dispensing power to parts of

a document (s8(1)) and documents which came into existence outside NSW (s8(5)).

The wide definition of document in s21 of the Interpretation Act 1987 applies to s8 and a

document is not restricted to “any paper or material on which there is writing”: s3(1). The s21

Interpretation Act definition of ‘document’ is:

‘document means any record of information, and includes:

(a) anything on which there is writing, or

(b) anything on which there are marks, figures, symbols or perforations having a meaning

for persons qualified to interpret them, or

(c) anything from which sounds, images or writings can be reproduced with or without the

aid of anything else, or

(d) a map, plan, drawing or photograph.’

In Treacey v Edwards (2000) 49 NSWLR 739 Austin J considered the application of s21 of

the Interpretation Act definition to the WPAA. His Honour in that case held that an audio tape

was capable of being incorporated by reference into a formally executed will or alternatively

treated as a testamentary document in accordance with s 18A of the WPAA. The same

reasoning would apply to an audio tape, CD or DVD.

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Evidence and standard of proof

The Court must be satisfied, on the balance of probabilities, that the deceased intended the

document to form a will. Evidence of intention can be inferred by the Court.

The Court is not limited by s8(3) in relation to the evidence it may consider in making its

decision under s (2). Section 18A did not have a corresponding provision. Extrinsic evidence

can be adduced to establish the deceased’s testamentary intentions. For example, words

that were said by the deceased to persons either at the time of making the document or

after. Other relevant evidence includes: where the document was found and whether it was

found with other important documents; whether the testator ever referred to the document;

the habits of the testator, was s/he a person who would normally approach a solicitor for

things like this or was s/he a person who would tend to do things on his/her own bat or with

the advice of a relative? And of course, the text of the document itself.

The standard of proof is a civil standard. That is, the Court must be satisfied that it is more

likely than not that the deceased intended the document to constitute his/her will. The

question of intention is a question of fact.

Procedurally, a Summons is usually filed seeking a declaration under s8 of the Succession

Act that a document constitutes the last Will of the deceased. All persons who could have an

interest in the deceased's estate should be served with citations to see the proceedings.

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Cases and Examples

Smith, Estate of A.N.H. - Application of P.A. Smith [2009] NSWSC 907

The Plaintiff sought a declaration under s 8 of the Succession Act 2006 (NSW) that a

document dated 14 January 2008 constituted the last Will of the late Arthur Norman Henry

Smith.

The document was dated 14 January 2008 and was wholly in the handwriting of the

deceased. It was a stationer's form of Will. It had been fully filled in by the deceased who

had appointed the Plaintiff as Executor and had then made dispositions of the whole of his

estate.

The document was, on the back, filled in with the name of the deceased (his initials and

surname), his address and the date of the document. The document was not, however,

formally executed and witnessed as required. In fact, the space provided for the signature of

the testator and the signature of witnesses had been left blank entirely, although above it the

deceased had written the date of the document, “14 January 2008”.

In that case, Palmer J found that there was a very obvious inference that the testator

intended that the document represent his last Will. His Honour said [at 4] “The absence of

his duly witnessed signature may possibly be explained by the fact that he lived alone on a

farm property with no convenient neighbours. Perhaps he could not immediately find anyone

to witness his signature and contented himself with filling in the details on the back of the

document, regarding that as an indication that the Will was final and immediately effective.

[5] I am satisfied by the evidence adduced in support of the application that, after he had

completed the document dated 14 January 2008, the deceased made statements to third

parties confirming that he had made an effective will in terms of the document. In other

words, I am satisfied that the deceased did not regard the document as a draft.” Palmer J

was satisfied that the deceased intended the document to operate as his last Will and made

the declaration.

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Quartermain Estate - Steggall v Quartermain [2009] NSWSC 553

This was an application in solemn form that there be admitted to probate a will, formally and

duly executed, together with a handwritten document, not executed by the deceased, but

said to be a codicil to the formal will. The Plaintiff sought a declaration, pursuant to s 8 of the

Succession Act 2006 (NSW), that the informal codicil constitutes a valid codicil to the formal

will. All beneficiaries under the formal will and the informal codicil, being six of deceased’s

eight children, were given notice of the proceedings and only one appeared to oppose the

declaration as to the validity of the informal codicil.

The Plaintiff was the executor appointed by the deceased in a will dated 21 June 2005. That

will was prepared by the Plaintiff, who was the deceased’s solicitor for many years. The will

was duly executed and witnessed. There was no issue as to its validity.

The deceased was admitted to hospital on 25 April 2008 and died there on 22 May 2008.

After his death, there was found on the dining room table in the deceased’s home a spiral

bound notebook, about A5 in size, in which the deceased had written in his own handwriting.

The writing, which occupied two and a half pages, was not dated but Sackville J inferred

from the evidence of the deceased’s daughter and his ex-wife that it was written by the

deceased between 24 March and 25 April 2008.

There was no one else living in the deceased’s home at that time. There are no words in the

document which expressly stated that the deceased intended it to operate as a will or codicil.

This was the ‘informal codicil’.

In October 2007 the deceased said to a solicitor in the Plaintiff’s office that he intended to

change the formal will. He did not say what changes he wished to make. He never asked the

solicitor, with whom he had dealt for many years, to take instructions for a new will or a

codicil.

One of the deceased’s daughters, Kanisa (also known as Alicia and, familiarly, as PeeWee)

received nothing under the formal will. The evidence was that over the years she was “in and

out of favour” with the deceased. However, the evidence suggested that there was a

reconciliation between the deceased and this daughter before the deceased’s death.

Sackville AJ accept that the deceased expressed an intention to include her in his will.

The deceased was a successful company director and was obviously well acquainted with

business affairs. Sackville AJ inferred that the deceased would have appreciated that it was

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highly advisable to have a solicitor assist him to change his will. Because of the size of his

estate and his long term dealings with the Plaintiff and his firm, I infer that the deceased

would have had no difficulty, in ordinary circumstances, in contacting the Plaintiff or his firm

between October 2007 and April 2008 if he had wished to give instructions for a new will or a

codicil.

The informal codicil commenced without preamble or explanation as follows:

“Lyn & Mark NIL

Bernice, her painting, also paintings of Paul, Adrian and Raquel to be sent to each.”

There then followed a list of personal items of relatively little value. At the conclusion of the

list are the words “Bernice also receives A$250,000”. (Under the formal will Bernice received

UK₤250,000 and a fifth of residue).

On the next line of the document appears “Paul”, followed by a list of personal items

amongst which appear the words “A$500,000 + family coat of arms” and then more personal

items. Under the formal will Paul received UK₤250,000 and a fifth of residue.

On the next line appears “Adrian As above” and a list of personal items amongst which are

the words “A$250,000”. Under the formal will Adrian received UK₤250,000 and a fifth of

residue.

There was a space of one line and then the words: “Raquel to received Leather products

same as Bernice plus her portrait. In addition she is to receive A$400,000 + 10 paintings

from my home”. Under the formal will Raquel received UK₤25,000 and a fifth of residue.

Then follows: “Jomphol (who is a son of the deceased) you have received so much but

never enough I bequeath you A$500,000. You liked my leather jackets, black & red (2).

There may be other clothes that Paul cannot use. You are welcome after Paul has helped

himself.”

Then follow the words: “PeeWee (Kanisa) Well kid, last but not least. I leave you A$500,000

and [undecipherable] furniture, fixtures, fittings + 3 4 paintings”.

On the next page appears: “Gold. To be put into 6 piles. Gems to be valued and divied as

evenly as possible between all. My watch collection to be divided between the three sons on

a value basis. The ladies gold watch to go to Bernice.”

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On a new line appears: “The balance of value above what has been bequeathed after costs

to be shared on an equal basis between Bernice Paul Adrian, Raquel, Kim and Alicia (6)”.

There was nothing further written in the notebook.

The informal codicil gave expression to the deceased’s stated intention of including Kanisa

(“PeeWee”).

His Honour said [at 20]: “The question is purely one of fact: am I satisfied that the deceased

intended the informal codicil, though not executed as a will, to form an immediately effective

alteration to the formal will: In the estate of Masters (dec’d); Hill v Plummer (1994) 33

NSWLR 446, at 449 per Kirby P and at 466 per Priestley JA.

[21] There are two possibilities. The first, for which Bernice contends, is that the deceased

wrote the document merely as an aide memoire, or draft, of instructions which he might have

wished to give his solicitors for the alteration of the formal will. If this is so, then it may be

assumed that the deceased had no intention that any alteration of the formal will should be

effective until embodied in a formally executed codicil. The second possibility, for which

Kanisa contends, is that the deceased intended that the informal codicil be given

testamentary effect even though he must have realised that it had not been executed

formally.

[22] I am satisfied that the second possibility is correct. It is true that the deceased had the

opportunity to instruct his solicitors to prepare a formal codicil. It is true also that the

deceased did not write anything at the commencement of the document to show that he

intended it to have immediate testamentary effect. The document in part reads like an aide

memoire in that it lists minor personal items that the testator would like the relevant

beneficiary to have although it does not always make a gift of those items in so many words.

If the document had contained no more than such lists I could not have concluded that it was

anything more than a draft or an aide memoire. However, when the deceased came to deal

with Jomphol and Alicia (Kanisa) it is very clear that he was addressing each of them

directly. He intended Jomphol to read the document because he admonished Jomphol about

his past conduct. Then, despite the admonition, the testator immediately made an effective

disposition in the language of will-making: “I bequeath you A$500,000”.

[23] Likewise, the deceased clearly intended Kanisa to read and understand what he had

written to her. As with Jomphol, he expressed himself in words of immediate gift in the

language of will-making: “I leave you A$500,000”, etc.

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[24] In the final paragraph, the deceased again uses the formal language of will-making,

i.e. “bequeath” to refer to the specific dispositions which, he suggests, have been made

earlier in the document. He then directs that the “balance of value” is to be divided equally

between six of his children, including Kanisa.

[25] I consider it to be of significance that the notebook containing the informal codicil was

left by the deceased on the dining table, where it would doubtless be seen immediately,

rather than left amongst other papers in some less visible or accessible place. As I have

noted, in the weeks before he was taken to hospital the deceased was living alone in his

home. There was nobody to whom he could easily give the informal codicil for safe keeping.

It is highly possible, if not probable, that the deceased, realising that he would have to go to

hospital very soon and that he might not have the opportunity of instructing his solicitors to

draw a formal codicil, decided to write down his testamentary intentions in his notebook and

leave it where it would easily be seen so that it could be given effect.

[26] The informal codicil certainly contains vague terms as to the identity of various personal

items to be given to various beneficiaries. This vagueness may give rise to problems of

construction. However, there is nothing in the document as a whole to suggest that it is

merely a rough draft or notes of instructions to be given to a solicitor. The document is

written fluently and without multiple crossings out or insertions. Indeed, the deceased seems

to have made an effort to control shaky handwriting and to write legibly.

[27] For these reasons, I am satisfied that the deceased intended that the informal codicil

form an alteration to the formal will. Both the formal will and the informal codicil will be

admitted to probate.”

Bannister v Perpetual Trustee Co Ltd; Estate of Mascot Zita Blake deceased [2008]

NSWSC 1283 Young CJ in Eq

These were proceedings for the plaintiff to obtain a grant of probate in solemn form of the

will of the deceased testatrix which was made on 24 December 2002.

Young CJ in Eq said at [2] “Were it not for a document of 15 February 2005, which the

defendants say should be held to constitute Mrs Blake's last will pursuant to s 18A of

the Wills, Probate and Administration Act 1898, there would be no doubt that probate should

be granted of the 2002 will. However, the document of February 2005 at least purported to

revoke the 2002 will.”

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The document of 15 February 2005 as presented to the court had two separate pieces of

paper. On the larger piece of paper, a double sheet, the first page was numbered 1 on the

obverse side and on the reverse side the page was numbered 2. It appeared to have been

torn from an A4 size exercise book. Pages 3 and 4 were blank, however, there was on page

3, that is the blank page, the impression of page 1 which showed that page 3 was directly

under page 1 when the document was written. The separate and smaller sheet did not bear

any impression of the writing on pages 1 or 2 and was a single sheet of paper which

appeared as if it may well have been taken from the same exercise book, but it was not

written resting on the double sheet.

The document reads as follows:

“ 1

TUESDAY 15th FEBRUARY 2005 THIS DOCUMENT IS MY LAST WILL AND

TESTAMENT. I HAVE ONE SON, PAUL JONATHAN BLAKE AND ONE GRANDSON

DUSTIN BLAKE. I OWN MY HOME WHERE I HAVE RESIDED SINCE 1970 WITH MY SON

PAUL JONATHAN BLAKE. MY GRANDSON, DUSTIN BLAKE RESIDES AT

THE HOME OF HIS MOTHER ESTELLA CAMPBELL IN GOSFORD AND HIS

STEPFATHER SCOTTIE CAMPBELL. I WISH TO REVOKE ALL PREVIOUS WILLS

WHICH WERE DEPOSITED WITH MR PETER KENNEDY LAWYER OF SYDNEY N.S.W.

AND MR LEON DAVIES LAWYER OF SYDNEY N.S.W. AT THIS TIME I HAVE SPOKEN

WITH MR BRUCE HOCKING LAWYER OF SYDNEY N.S.W.

2

MAINLY ABOUT ESTABLISHING A DRAMA S IN MY SONS NAME PAUL JONATHAN

BLAKE. BUT THIS IS STILL BEING NEGOTIATED I WISH MY SON TO BE CARED FOR

IN MY HOME AT CASTLECRAG UNTIL HIS DEATH. PERPETUAL TRUSTEES WHO

MANAGE MY SONS ESTATE WILL APPLY TO THE COURT FOR DISTRIBUTION OF

FUNDS HELD BY THEM, AT THE TIME OF PAULS DEATH. IT IS MY UNDERSTANDING

THAT IF PAUL PREDEC ME [deleted] HIS MOTHER, THEN HIS NEXT OF KIN IS DUSTIN

BLAKE TO WHOM CONSIDERATION MUST BE GIVEN REGARDING [deleted] CAREFUL

MANAGEMENT OF HIS INHERITENCE.

5

VALUE OF MY HOME IN CASTLECRAG MONIES IN WESTPAC BANK (NORTHBRIDGE

BRANCH AT THE TIME OF MY DEATH RENOVATIONS AND ADDITIONS TO MY HOME

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IN CASTLECRAG, UNDER MR DENNIS LEACH (ARCHITECT) OF LEACH &

ASSOCIATES MR JOHN HERBERT BANNISTER [line deleted] [line deleted]

IN THE EVENT OF MY DEATH IS TO BE CONSIDERED FINANCIALLY FOR HAVING

FAITHFULLY SERVED PAUL, MYSELF AND THE STAFF IN CASTLECRAG, [deleted] IN

ADDITION TO WHICH HE LIASED WITH THE ARCHITECT (LEACH) AND SIMPLIFIED

THE COMPLEXITIES OF MY UNDERSTANDING [deleted] PLANS ETC.”

Young CJ in Eq said “However, it is impossible to set out exactly how it appears in the

handwritten original. For instance, where on page 5 two lines are crossed out, in the original

before the crossing out they read: "MR JOHN HERBERT BANNISTER, DR DESERVES

AND IS ENTITLED TO A FEE FOR HAVING FOR FAITHFULLY." In relation to s18A His

Honour said at [10] “the section has been construed by courts on a number of occasions

though there is little conflict in the various decisions. One of the early decisions is Re

Masters (1994) 33 NSWLR 446 where the Court of Appeal made it clear that s 18A should

be given a beneficial application. In Permanent Trustee Co Ltd v Milton (1995) 39 NSWLR

330 at 334, Hodgson J said that where a section 18A document operates as a will, then

once the testator has evidenced the intention that that document operate as a will, "it is clear

that it is not sufficient to deprive the document of effect that the testator forgets about the

document or loses testamentary capacity."

[11] So that once a testator evinces the intention, either at the time the testator makes the

document or subsequently, that it is to operate as a will or revocation or an amendment

under s 18A, then the document is not deprived of that effect by the testator afterwards

forgetting about it. However, the fact that the testator does forget about it or acts

inconsistently with it may assist the court to find that it was never intended to be a will in the

first place.”

…

…

[13] The court must under s 18A be satisfied of certain things and that is that the document

was intended by the deceased to constitute either a will or, in the present case, revocation.

[14] Courts look at various guidelines when working out that matter. One guideline is where

the document was found. In the instant case, it appears that the 2005 document was found

with other important documents. Secondly, whether the testatrix ever referred to the

document. I will revert to that. Thirdly, the habits of the testatrix, was she a person who

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would normally approach a solicitor for things like this or was she a person who would tend

to do things on her own bat or with the advice of a relative. And, fourthly, the text of the

document itself. Of course, there will be other cases where other factors will also impinge on

it.

His Honour said, in relation to testatrix's acknowledgement of the document [at 16] “the

strongest the evidence appears to me to go is in paragraph 19 of the affidavit of Ms Marshall

where she says that the testatrix phoned her on about 28 April 2007, that was about ten

days before she died, and said that she had done a deal with the devil and that she thought

that she was being overheard whenever she discussed things on the phone. She said: "I

have done the wrong thing with a really important document, I was stupid doing it but I had

to. I've written more paperwork and I've fixed it." Ms Marshall said: "Do you mean your will?"

to which the testatrix replied: "It is not a safe line. We will talk when you come over next."

However, there was no such occasion because the testatrix died.

…

[18] The document itself says that it is the last will and testament of the deceased, however,

it hardly qualifies as a will because it neither appoints an executor, nor does it make any

disposition of property. It also contains wishes such as, "I wish my son to be cared for",

rather than setting out any firm arrangement. If the one page document is part of the whole

document then it also shows that the testatrix was thinking about what property she had and

what she should do with it.

[19] In my view, it is more likely than not that the odd page is part of the document. It

is written, it would seem to me, in the same pen and on paper from the same exercise

book. Furthermore, the text on page 2 shows that the testatrix was still thinking about

establishing a drama studio or such in her son's name, but she acknowledged that

this had not yet come to fruition. It was still being negotiated and, indeed, other

evidence shows that this thought had come to her from time to time from at least

2002, but had never come to fruition. Accordingly, it seems to me that the whole

document was one where the testatrix was setting down her thoughts about what she

would do rather than something which was to operate as a testamentary instrument.

[20] It is clear from the authorities that ordinarily drafts or instructions to solicitors to

prepare a will are not within s 18A because they are not intended by the testatrix to

have immediate effect, but, as Hodgson J said in Milton's case, it does not disqualify

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if it is intended to be an interim testamentary document to take effect until a solicitor

prepares a better one.

[21] Speaking of solicitors, it is clear in this case that previous wills were made by the

testatrix with the aid of a solicitor and this was acknowledged by her on the first page, which

indicates that her previous wills were with two named solicitors and that further, she had

spoken with a third solicitor about establishing a trust. It is, accordingly, unlikely that she

would want her own writing to constitute a will.

[22] Accordingly, in my view, the document cannot operate as a will and that there is

not the intention there that the document constitute the deceased's will.

[23] The next matter is whether it can operate to revoke. Certainly she says, "I wish to

revoke all previous wills". Now, one could be semantically precise and say that that was not

a statement of revocation, it is only a wish of what she wants to do and, indeed, that would fit

in with the general intention that the thing was to operate as a recording of her thoughts.

However, if one put that thought aside and said: “Well, here we have the words, ‘revoke all

previous wills’ ", surely that should be enough.

[24] However, revocation involves two elements, namely (1) a physical doing of something to

satisfy s17 or s 18A; and (2) an intention. When one looks at the whole document one can

see that primarily the testatrix was thinking that if this document was to operate, it was to

operate as her last will and testament and that the revocation bit was only part of a whole.

This marries in with the doctrine of dependent relative revocation, which is to the effect that if

a testator revokes a will with the intention of setting up a new will, and the new will fails for

some reason or other, then the revocation clause lapses or does not take effect.

[25] It seems to me that either there is insufficient evidence to show that this was merely an

indication that when the new will was set up the old will would be revoked or, alternatively, if

technically it does operate as a revocation, the doctrine of dependent relative revocation

applies. It follows then that I cannot give this document, which is DXO1, testamentary effect,

either as a will or as an instrument of revocation, and thus the plaintiff is entitled to a grant of

probate in solemn form of the will of 24 December 2002.”

In relation to costs, His Honour said:

[29] The question then is whether the first defendant is entitled to any costs. The rule is that

in adversary proceedings, the person who is successful gets his costs and the person who is

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unsuccessful pays the costs. However, an exception, which is relevant in this sort of case, is

that where the problem has been caused by the testator it is fair that the estate should bear

all the costs of undoing the problem the testator caused.

[30] It would seem from a surface look at the authorities that in s 18A cases if the testator

has written the document which causes the problem, as is clear that the testatrix did in the

instant case, and that the case is one which at least should not be struck out, that ordinarily

the costs are paid out of the estate on the party and party basis. I think the instant case

comes within that exception. Accordingly, the first defendant's costs should be paid out of

the estate on the party and party basis and I suppose it follows that the second defendant's

costs on a submitting basis should also come out of the estate.

Handwriting Experts and Informal Documents - Kwon v Tran [2010] NSWSC 1092

The relevant issue in the substantive proceedings was whether a statutory declaration

apparently made by the deceased on 10 September 2005 and apparently before William

Tricker JP ought be admitted as an informal will pursuant to s 8 of the Act. The defendant in

the probate proceedings (2008/299069), who is the deceased’s widower, applied for leave to

obtain and adduce the evidence of an expert handwriting witness as to the authenticity of the

signature which appeared as that of the deceased on the statutory declaration.

Mr Tricker had sworn an affidavit in the proceedings, deposing that the statutory declaration

was made and signed by the deceased in his presence on 10 September 2005. He also

deposed that he had on a previous occasion witnessed a guarantee signed by the

deceased.

Two specimen signatures of the deceased, one on a passport and one on a bank authority,

were in evidence. There were some minor differences between each of those specimen

signatures and the signature that appeared on the statutory declaration, however His Honour

said that they could not be said to be outside the normal range of variation for an individual’s

signature. He also found there were significant consistencies between the two specimens

and the questioned signature. However, the specimens were photocopies, and the

observations of an untrained and uneducated eye of a judge are not of a handwriting expert.

His Honour ultimately concluded that the plaintiff was likely to be prejudiced greater than the

defendant in any decision refusing leave to adduce expert evidence. He ordered that an

expert be engaged jointly by the plaintiff and the defendant in respect of the question arising

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in the proceedings whether the signature purporting to be that of the deceased Thi Nam

Kwon on the statutory declaration of 10 September 2005 is authentic.

Estate of Johnston [2010] NSWSC 382

This was another case under section 8.

Ronald George Johnston created an informal testamentary document on 14 April 2005. He

died on 28 January 2009.

The informal document was not witnessed in compliance with the formal requirements of s

6(1)(c) Succession Act 2006 (NSW) in that only one of the two required witnesses executed

part of the document. The principal issue for determination in the case was whether the

informal document was intended to form the testator’s will. If the Court found that the

informal document was so intended, the Court can dispense with the usual requirements for

the execution of a valid will: s 8 (2) of the Succession Act.

Did the testator intend the informal document to be his will

The matter for determination was whether the testator intended the informal document “to

form” his will. The authorities on s 18A Probate and Administration Act 1898 identify the

three questions that must be asked upon such a determination, as Powell JA explained

in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56] :

(a) Is there a document?

(b) Does the document embody the deceased’s testamentary intention?

(c) Did the deceased intend the document, without more, to operate as a will

or codicil?

In the present case the informal document was a document which may be the subject of a s

8 Succession Act order. The issues in this case related to the second and third of Powell

JA’s questions. In this case His Honour found that the same evidence tends to establish that

the informal document both embodies the testamentary intentions of the testator and that the

informal document was intended without more to operate as a will.

His Honour also commented that s 8 “should not be applied with too stringent a requirement

of proof that a propounded document otherwise clearly embodying the testamentary

intentions of the deceased does constitute his will: Re Estate of Masters; Hill v

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Plummer (1994) 33 NSWLR 446 at 452V per Kirby P. It would be a mistake to regard the

third element of Powell JA’s elements as requiring evidence that the deceased consciously

set his or her mind to the legal formalities for will making”.

The informal document that the testator created consisted of three parts. The first part

described itself as “the Last Will and Testament of Mr Ronald George Johnston of RMB 106

Nelson Bay Road, Fullerton Cove in the State of New South Wales, Company Director”. This

first part appointed an Executrix and Trustee “of this my will” and then gave the whole of his

estate to her absolutely. The first part also provides that should a Ms Johnston not survive

the testator then two friends of the testator, Messrs Taggart and Jackson are appointed as

executors and trustees, upon the trusts then provided for in detail.

In summary the trusts created dispose of the whole of the testator’s interests in various

classes of shares in a family company. Throughout the document the words “this my will”

were used. This first part of the informal document ended with an attestation clause. Were it

executed in conformity with Succession Act s 6 it would on its own operate as a complete

will of the testator.

The second part of the informal document was headed “Schedule 1” and set out a list of

powers that the trustees “in the execution of their office as trustees of the trusts created

under this will may exercise in their discretion.” These powers included “any powers given to

[the trustees] by law” and any powers and rights as if the trustee “was the absolute owner of

the Trust Fund”. The second part then extensively list a series of additional powers, said to

be “without limitation” as to the previous broader description of the trustees powers earlier in

the second part of the informal document headed “Schedule 1”.

The third part of the informal document is entitled “Memorandum of Wishes” and declared

itself to be a memorandum made “to indicate to the Executors and Trustees of my Estate the

manner in which they should deal with the assets and affairs of the Johnston Family Trust

inter vivos effectively controlled by me during my lifetime”. The “Memorandum of Wishes”

then gave directions as to how the testator would wish for the assets of the Johnston Family

Trust to be administered. However the third part of the informal document declared that it

“…is signed in the knowledge that my Executors and Trustees will not be bound by the terms

of this Memorandum.”

The testator and other persons present executed the informal document defectively. The last

page of part one, was signed by the Testator next to a usual form of attestation clause that

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describes the steps for attestation in conformity with s 6 Succession Act. No other page of

part one was signed or witnessed. Part two of the informal document “The Schedule” was

neither signed nor witnessed by the testator. Part three of the informal document the

“Memorandum of Wishes” was signed by the testator and witnessed by Mr Langsford whose

full name and address were also recorded. No other handwritten markings appeared on the

informal document. The manner of execution tended to indicate that the testator regarded

the informal document as one whole document rather than three separate documents.

There were no signatures complying with s6 in the informal document. The testator’s

daughter identified her father’s signature at the foot of part one of the informal document.

She also attests to the fact that her father did not re-marry after the informal document was

made.

His Honour said at [16]:

“When making the s 8 Succession Act decision in this case all the evidentiary sources in s 8

(3) are useful including s 3(a) “evidence relating to the manner in which the document or part

was executed” and s 3(b) “evidence of the testamentary intentions of the deceased person,

including evidence of statements made by the deceased person”. All these categories of

evidence in this case base an inference that the document reflected the testamentary

intentions of the testator.”

The Court considered the following as relevant factors:

(a) the testator spoke and gave instructions to his financial advisers to create the

document. The testator’s accountant attested to taking detailed instructions in

2005 from the testator and Ms Johnston to prepare their wills. He had a

discussion with and invited one Mr Taggart to consent to being an executor of

the estates of the testator and Ms Johnston.

(b) the instructions to Mr Jackson required him to consult solicitors to prepare

wills for Mr and Mrs Johnston, and arrange for the wills to be checked and

executed.

(c) once the solicitors had prepared the informal document and upon his

checking with the testator and Mrs Johnston, Mr Jackson received their

instructions that their prepared wills accurately reflected their testamentary

wishes and that they wished to sign them. On the day of execution Mr

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Langsford, a financial planner conducting his practice in the same building as

Taggart Partners, was called into a meeting with Mr Jackson and the

Johnstons to witness the testator and Mrs Johnston signing their wills. Mr

Langsford and Mr Jackson observed that Mr and Mrs Johnston signed what

was described as their “wills”. Mr Langsford did sign his name at the end of

the document entitled ‘Memorandum of Wishes’. All of this indicates an

intention that the informal document was to be a will.

Further, the detail of the will and the care with which it has been drafted to dispose of his “A”

class shares in the family company to his daughter and his grandson and then the giving of

various portions of his “B” class shares to a range of named family members in various

proportions was found to be by his honour as strongly indicative of a well developed

intention on his part to treat the informal document as his will. The time and trouble that was

invested in its drafting and the conspicuous care with which it has been physically set out, for

the testator’s approval all pointed to the testator intending the informal document to be his

will.

Additionally, it was with only very minor adjustments that the will was in terms almost

identical to the testator’s 14 June 2001 will which was executed in conformity with s 7 of

the Wills Probate and Administration Act 1898 (NSW). The two documents showed such

similarity of detailed intentions that it could be inferred that the latter document was intended

to have an equivalent testamentary effect to the earlier document.

The testator and his wife executed complementary informal documents in the same fashion

at the same time. The two documents were both defective as wills by reason of the same

omissions of witnesses’ signatures.

Mrs Johnston’s participation in a joint execution ceremony with an instrument in the

complementary form assisted the inference that the testator intended to create a will on this

occasion. It was difficult to explain such formality involving both of them other than as to

make their wills.

His Honour was satisfactory that the testator intended the informal document to form a will

and made the declaration.