Succession

Justin Brown 13th Wentworth Selborne Chambers

Contact

• justinbrown@selbornechambers.com.au

• Please leave return number in the email

Assignment

• Worth 20% of final mark– 1500 words– Compulsory– Released Week 2 – Expected 50%– Deemed 40-49% can sit exam– Less than 40% not eligible– Due 16 July 2014

Introduction To Succession

• Topics to be covered– Intestate Succession – Definition and Nature of Will– The Mental Element• Testamentary Capacity• Knowledge and Approval • Fraud and Undue Influence • Lack of Testamentary Intention

Introduction to Succession

• Formal Requirements– Form and manner of execution of wills– Gifts to interested witness– The judicial dispensing power– Incorporation by reference

Introduction to Succession

• The rectification power • Revocation– Involuntary (marriage)– Voluntary Revocation • Another will• By writing • By destruction

Introduction to Succession

• Alterations• Republication and Revival • Jurisdiction of Probate Court• Estate Pending grants of Representation– NSWTAG– Executor de son tort

Introduction to Succession

• Some Powers and duties of a Legal Personal Representative– Disposal of the body– Commencement and termination of the authority

of a legal personal representative– Executors Commission– Special Pleas and Immunities

Introduction to Succession

• Administration of Solvent Estates• Family Provision

Introduction to Succession

• Why is this area of law so important– Growing– Ageing population– Asset rich– Blended Families– Huge area of practice

Intestacy

• Chapter 4, Succession Act (NSW) 2006

IntestacyDefinition:“An intestate is a person who dies and either does not leave a will or leaves a will but does not dispose effectively by will of all or part of his or her property”.

Examples:• Suzie dies never having made a will• John dies having made a will which he revoked• Samantha dies with a will that leaves a specific gift of her house to

her mother. • Ben dies having made a will but he did not have capacity to make a

will

Must Survive

• Survivorship– The person is born before the intestate’s death

and survives the intestate by at least 30 days– Gestation commenced before death of deceased

and survives– Exception if estate to the crown

• Must survive to inherit

What is a Spouse- Married- Domestic Partnership

• Registered relationship, • De facto relationship,

» 2 years» Has resulted in the birth of a child.

Interpretation Act 1987 (NSW) s21C: “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”.

Intestacy

• Examples– Suzie is married to Jim– John is married to Elizabeth but has lived with

Maria for 10 years– Ben is in a registered relationship with Mark but

lives with Amy

Spouse’s Legacy

– The CPI adjusted legacy is to be determined in accordance with the following formula:

R= A (C/D)R represents the CPI adjusted legacy.A is $350,000.C represents the Consumer Price Index number for the last quarter for which such a number was published before the date on which the intestate diedD represents the Consumer Price Index number for the December 2005 quarter.

– As at December 2014, $437,708.83

Spouse Entitlements

• No issue, whole estate• Issue, issue to spouse, whole estate• Issue, but not issue to spouse:

• Personal Effects• Spouse’s Legacy• Half Residue

Spouse Examples

• Ben dies, Mary was his spouse, no children• Ben dies, Mary and Ben had 3 children

together• Ben dies, Mary and Ben had 3 children, Ben

has a love child

Children

• Adopted Child– Is child of adopted parents– Biological parent lose rights – Rights to adopted parents not biological rights

• Surrogacy Child– Parenting order– Surrogate child rights under order– No rights to biological parent

Issue’s Entitlement

• Spouse, all issue off spouse• No spouse, Issue• Spouse, Issue, not issue of spouse:– All issue receive half residue

• Issue have died, leaving issue– Issue’s issue take their share

Example of Issue’s Entitlement

• Ben dies, Mary and Ben had 3 children, Ben has a love child

• James, his wife Mary predeceased him and they leave four children, one child Sam has also died leaving 3 children

Who Else

• No spouse, issue = parents• No spouse, Issue, parent = Brothers

and Sisters–If a brother or sister predeceased

leaving children they take their share

Who Else

• No spouse, issue, parent, brothers or sisters = grandparents• No spouse, issue, parent, brothers or

sister, grandparents = Aunts and Uncles–If an Uncle/Aunt predeceases then

their children take their share (cousins)

May Take In Separate Capacity

• maternal aunt and paternal uncle had a child in common. The child of the union between the maternal aunt and the paternal uncle would be entitled to participate in the estate both as representative of the maternal aunt and as representative of the paternal uncle.

Indigenous Estate

• May apply for separate determination not in accordance with normal intestacy

• Laws, customs, traditions and practices to which the intestate belonged.

• Unless satisfied that the terms of the order are, in all the circumstances, just and equitable.

Absence of Persons

• State• State has discretion:

(a) dependants of the intestate, (b) any persons who have, in the Minister’s

opinion, a just or moral claim on the intestate, (c) any organisation or person for whom the intestate might reasonably be expected to have made provision,

(d) the trustees for any person or organisation mentioned above