Everyone has a right to dispose of their property and assets to whomever and however they wish and such wishes are generally documented in a will. The law generally upholds that person’s wishes, whether those wishes are fair or not. However, in circumstances where the law considers the will to be grossly unfair with respect to particular persons, it allows those persons aggrieved to challenge the will. The court will only intervene where it is clear that inadequate provision has been made in the will for an eligible family claimant.
The law that governs this area of law is the Succession Act 2006 (NSW) (“the Act”) which outlines the law in relation to family provision orders. Section 57 of Act sets out a list of eligible persons who are entitled to make a claim against your estate as follows:
1.A husband or wife of the deceased person at the time of the deceased person’s death, including a person who was living in a de facto relationship with the deceased;
2.A child of the deceased person, or if the deceased person, was at the time of his or her death, a party to a domestic relationship, a person who is, for the purposes of the Property (Relationships) Act 1984 (NSW), a child of that relationship;
3.A former wife or husband of the deceased person;
4.A person who was, at any particular time, wholly or partly dependent on the deceased person and 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; and
Making a claim against an estate is not as simple as it sounds – a person must have sufficient grounds and capacity in order to do so. Section 60 of the Act sets out the matters which are to be considered by the Court in granting a family provisions order, which may include but are not limited to:
(a)any family or other relationship between the applicant (eligible person) 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 age of the applicant when the application is being considered; and
(e)whether any other person is liable to support the applicant.
An application may be made by an eligible person who has sufficient grounds, provided that the application is made not later than 12 months after the date of death of the deceased person, unless the Court otherwise orders. An application may be made whether or not administration of the estate of the deceased person has been granted.
It is recommended that you regularly review your will to avoid any such applications.
Speak to one of our lawyers today to discuss your current will, obtain advice in respect of your estate planning needs and/or update your will in order to avoid any applications for a family provision order against your estate.
A case study on Making a Claim against an Estate is included in this newsletter.
If you would like to know more about making a claim against an estate, please contact Graham Fullick (Director, Senior Lawyer) or Melissa Hoffmann (Lawyer) on (02) 9283 2566.
Our client was an elderly widower in his late 80’s whose wife passed away approximately two years ago. Hers was a second marriage to our client and she had one child who predeceased her and two grandchildren. These were our client’s step-grandchildren. During the course of the deceased wife’s later years of life she deteriorated with dementia. She made her will which effectively left her estate to her grandchildren without making adequate provision for her husband of 51 years. The granddaughter, in 2004, had been given power of attorney over the deceased’s affairs after the deceased’s daughter’s death.
Proceedings
The elderly widower contacted us after he was not satisfied with the legal services he was being provided by another law firm. He instructed that some of the wife’s estate and shareholdings acquired during her lifetime had been squandered by the step-granddaughter who had power of attorney. Our client instructed that he had not received any dividends from the investment portfolio in the deceased’s name worth hundreds of thousands of dollars. There was no accounting for or disclosure of gifts during the testator’s lifetime to her granddaughter who held the power of attorney.
The proceedings were highly contentious and had the potential to be acrimonious. We uplifted the client’s file from his previous solicitor after an unsuccessful compulsory court mediation. The deceased had also made a fourth will in early 2007 where she gave all her real estate and assets to her husband of 51 years with monetary legacies to her two nieces. The problem with this later will was her mental ability (testamentary capacity) to make her will. It was alleged that she was of unsound mind. The matter was set down for a 3 day hearing. We engaged in intense negotiations at the outset of the hearing. Our Managing Director, a senior lawyer and counsel were involved simultaneously in various aspects of the negotiations.
Result
A settlement was reached where our client obtained freehold title to a property and a $250,000.00 improvement on the unsuccessful mediation. The result was obtained without having to deal with proving the later will where testamentary capacity was an issue. Consent orders were made by the trial judge with the comment “Having read the affidavit evidence of the parties, I am satisfied that the orders made by consent are appropriate and justified”. Our client was very pleased with the result.
If you would like to know more about making a claim on a deceased estate, or if your have received such a claim, please contact Graham Fullick (Director, Senior Lawyer) or Melissa Hoffmann (Lawyer) on (02) 9283 2566.
Everyone has a right to dispose of their property and assets to whomever and however they wish and such wishes are generally documented in a will. The law generally upholds that person’s wishes, whether those wishes are fair or not. However, in circumstances where the law considers the will to be grossly unfair with respect to particular persons, it allows those persons aggrieved to challenge the will. The court will only intervene where it is clear that inadequate provision has been made in the will for an eligible family claimant.
The law that governs this area of law is the Succession Act 2006 (NSW) (“the Act”) which outlines the law in relation to family provision orders. Section 57 of Act sets out a list of eligible persons who are entitled to make a claim against your estate as follows:
1.A husband or wife of the deceased person at the time of the deceased person’s death, including a person who was living in a de facto relationship with the deceased;
2.A child of the deceased person, or if the deceased person, was at the time of his or her death, a party to a domestic relationship, a person who is, for the purposes of the Property (Relationships) Act 1984 (NSW), a child of that relationship;
3.A former wife or husband of the deceased person;
4.A person who was, at any particular time, wholly or partly dependent on the deceased person and 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; and
Making a claim against an estate is not as simple as it sounds – a person must have sufficient grounds and capacity in order to do so. Section 60 of the Act sets out the matters which are to be considered by the Court in granting a family provisions order, which may include but are not limited to:
(a)any family or other relationship between the applicant (eligible person) 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 age of the applicant when the application is being considered; and
(e)whether any other person is liable to support the applicant.
An application may be made by an eligible person who has sufficient grounds, provided that the application is made not later than 12 months after the date of death of the deceased person, unless the Court otherwise orders. An application may be made whether or not administration of the estate of the deceased person has been granted.
It is recommended that you regularly review your will to avoid any such applications.
Speak to one of our lawyers today to discuss your current will, obtain advice in respect of your estate planning needs and/or update your will in order to avoid any applications for a family provision order against your estate.
A case study on Making a Claim against an Estate is included in this newsletter.
If you would like to know more about making a claim against an estate, please contact Graham Fullick (Director, Senior Lawyer) or Melissa Hoffmann (Lawyer) on (02) 9283 2566.
Advance Care Directives and the right to refuse medical treatment
A study of 2 recent cases in relation to an individual’s right to determine their own fate.
An Advance Care Directive (ACD) is a document allowing a person to specify medical treatment that they wish to receive or do not wish to receive in situations where they are unable to provide their consent due to mental incapacity. If the ACD is made by a mentally capable adult and is clear and unambiguous, it must be respected. ACDs have not as yet been given legislative standing in NSW.
This is the same for situations where you suffer sudden injury or illness. If you or a relative is in palliative care or disability care, such a direction gives peace of mind to you and next of kin about what are the correct decisions for your medical treatment.
An ACD should be seen as part of preparation for good treatment or a peaceful death- whatever eventuates. It is not morbid. Our clients in these situations use legal means such as a will and power of attorney in conjunction with such a Directive. As one client said “It is part of getting ready to meet my maker with love.”
These legal measures are only adjuncts to palliative and residential care services such as pain relief, occupational therapy, diversion therapy, respite care, chaplaincy, counselling, visitation, physical care, massage and other measures. Australia leads the world in this type of systematic and compassionate care.
Where there is doubt as to a patient’s intention, it is always resolved in favour of preservation of life.
Unwanted Dialysis
The recent decision of Hunter and New England Area Health Service v A [2009] NSWSC 761handed down in August 2009 reaffirmed that a direction to refuse medical treatment (by a patient with capacity) did not have to be “sensible”, “rational” or well considered to some minds in the community. Unless the presumption of capacity at the time of making the ACD is rebutted, the individual’s right must be respected. Just because people disagreed with Mr A’s choice did not mean he was irrational or lacked mental capacity.
In this case a Jehovah’s Witness, Mr A, was admitted to hospital unconscious with renal failure and was kept alive by mechanical ventilation and kidney dialysis. An ACD prepared earlier clearly expressed a refusal of dialysis. Jehovah’s Witnesses do not believe in receiving blood transfusions and blood products. The court held that the ACD was valid even though refusal of dialysis would result in the death of the patient. The court clarified that this was not a case concerned with a ‘right to die’ or euthanasia. It was rather the recognition of his right to refuse medical treatment.
It follows that any treatment provided to Mr A, contrary to his ACD would create a claim under a tort such as battery (assault causing him bodily harm). The health professionals would be liable for their unauthorised conduct. Connecting him to dialysis would be a trespass to his body.
Starving to Death: Forced Surgical Tube Feeding
In the case of Brightwater Care Group (Inc) v Rossiter [2009] WASC 229, the patient (as distinguished from Mr A) was conscious and capable of giving consent and instructions at the time of administering the treatment, though suffering from spastic quadriplegia. By refusing the treatment, Rossiter would starve to death whilst in hospital. The court held that Rossiter was entitled to refuse specific treatment even if it would result in his death, as he was provided with adequate information as to the consequences of his refusal. His directive did not need to have been made on what we might call a “rational” basis. Mr. Rossiter had suffered progressive severe physical injuries over 20 years. It is probably the high point of case law in this area.
Factually, the two cases are different in that one patient lacked mental capacity and the other didn’t. Both cases recognise “a competent adult is generally entitled to reject specific treatment, even if the decision may result in serious risks such as death or appear mistaken in the eyes of the medical profession and the community”. Informed individual autonomy is the key criterion the courts use in these cases.
Natural Death distinguished from Euthanasia
The patients were merely choosing a natural death without unnecessary or burdensome medical intervention, even where their lives could have been saved or lengthened. This is very different to current talk of Euthanasia which is a choice deliberately to take one’s own life (killing oneself or hastening death) by medical intervention eg administration of lethal poison in assisted suicide.
Summary
If properly drafted, an Advance care directive reflects the individual’s settled intention in an emergency in relation to their treatment. It acts as a very persuasive tool to support the individual’s right to refuse certain medical treatment even and especially if the refusal is based on religious, social or moral convictions.
The Estate Planning team at Consolidated Lawyers can assist you in drafting an Advance Care Directive that can give clear and unambiguous expression of your intentions and preserve your right to decide your own treatment and the extent of medical intervention.
For further information or to make an appointment, please contact Lara Wentworth, (Associate, Senior Lawyer) Head of our Wills and Probate Division on (02) 9762 0400.
The new Succession Amendment (Intestacy) Act 2009 assented to on 9 June 2009 makes some significant changes to the current law in relation to inheritance of estates of people who die without leaving a will or leaving a will which does not adequately divest all or some of his/her property. A person who dies in these circumstances is known to die “intestate”.
Some of significant categories of changes that the new Act introduces are the following:
(1)Distribution of the estate between a spouse or partner and any children of an intestate
Currently, where an intestate dies leaving children and a spouse or partner, the spouse or partner is entitled to a statutory legacy, the deceased's personal effects, and half the residue of the estate. The intestate's child or children are entitled to the remainder unless it is required to secure an interest in the shared home for the spouse or partner.
The new Act provides that where an intestate dies leaving a spouse or partner and children of that relationship, the entire estate goes to the spouse or partner.
The Act provides for different arrangements where the intestate dies leaving a spouse or partner and children from another relationship. This recognises the fact that such children may not stand to inherit from the intestate's spouse or partner. In these circumstances, the estate is shared between the spouse or partner and the intestate's children. The spouse or partner will receive a legacy, the intestate's personal effects and half of the residue of the estate. All of the intestate's children share in what remains. This can also have the effect of denying the children of the relationship if any an inheritance in the event that their mother/ father who was the spouse of the intestate inherits along with the children from the previous relationship.
(2)Rights of the spouse where the intestate dies leaving children from another relationship
Where the intestate dies leaving a spouse or partner and children of another relationship, the surviving spouse will not, as is currently the case, be automatically entitled to the house at the expense of the intestate's children. Instead, the spouse or partner will have a special right to elect to take any part of the estate in satisfaction of their entitlement. If the selected part of the estate is worth more than the entitlement, the surviving spouse or partner will be required to make up the difference from their own resources. This will protect the interests of the intestate's children in such a situation.
(3)Statutory Legacy
The new Act increases the statutory legacy entitlement for a spouse or partner (where they are not entitled to the whole estate) from $200,000 to $350,000. There is an automatic indexing mechanism in the Act for increasing the legacy in accordance with changes in CPI from 2006 when the Committee settled on the figure of $350,000—and the date of
death of the intestate.
(4)Categories of Provision
The intestacy rules provide for an order of distribution among the family of a person who dies intestate. Currently, in New South Wales, the basic order of distribution is: first, spouse and children, second, parents, third, siblings, fourth, grandparents, and fifth, aunts and uncles of the intestate. If these categories are exhausted, the estate is bona vacentia and is paid to the Crown. The Act extends the categories to take in the cousins of the intestate. This is a compromise position across all Australian jurisdictions, and will mean a broadening of entitlements in New South Wales.
So while the new Act aims to address the changing trends and attitudes of society, intestacy remains the default method of distributing someone’s estate. Who inherits you will depend entirely on the circumstances which are current as of the date of death and not your individual intentions. To give effect to your testamentary intention it is vital to have a valid will in place.