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Succession Semester 1 2016

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SUCCESSION

Semester 1, 2016


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Table of Contents

History and Nature of Succession..………………………………………………………….……… 3

Comparative Succession Law.…………………………….…………………………………………… 5

Relationships of Succession Law...……………………………………………………….………. 10

Death………………………………..…………………………………………………………………………. 19

Intestacy…….…………………………………………..……………………………………………………. 24

Testator’s Mind………..…………………………….……………………………………………………. 34

Wills Formalities……………………………………….…………………….……………………………. 41

Dispensing Power……………………….………………………………………………………………… 47

Revocation…………………………………………………………………………………………………… 52

Mistake and Rectification.……………………………………………………………………………. 58

Construction………………………………………...……………………………………………………… 63

Family Provision…………………………..................................................................... 82

The LPR and Administration…………………………………………………………………………. 93


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Class 1 – Introduction

Administrative Matters:

Lecturer – Prue Vines

Class Participation – 10%

Mid-Session Assignment – 40%. Can either do a research essay (talk to Prue about

topic) or the mid-session assignment

Will-drafting Assignment – 50%. Required to use precedent but also justify it

History and Nature of Succession Law:

Introduction:

Succession law is the area of law that governs the transmission of property rights

from one holder to other persons

o Succession = Movement of the rights to property (on death in NSW)

Wills begin with “this is the last will of” (prior to 1910 they began with “In the name

of God Amen)

Prior to 1540 people were not able to pass land by will

All property in a will becomes equity – The executor will be the trustee of the trust

A will is not valid unless it moves property (can be something very minor however

must be something)

o They become more complex where a family is complex or this is a lot of

complicated property involved

Rights to Property:

John Locke – British settlers were able to justify their occupation of the land by

arguing that the Aboriginal people did not own the land because of their perceived

failure to ‘mix their labour with the soil’

o Accepted inequalities in society – People were not always required to be

treated the same

Immanuel Kant – The quality of one’s (eg: children) right is such that the State could

regulate or extinguish it

o The State could also compel the prosperous to share their wealth with others

o Law is to reflect civil society – The law is to reflect the view of the majority.

Jeremy Bentham – The greatest good for the greatest number

o Utilitarianism – Greatest happiness for the greatest number of people

James Mill – The right to property arose from the right to an individual of whatever

he or she could produce or get for it in a fair market

o Individuals should be free to give whatever bequest they wish, except that

where they left children who would otherwise be a burden the State could

interfere.


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Terminology:

Where deceased left Will Where deceased did not leave will

Testator/trix Intestate

Grantee Executor/trix Administrator (cta - cum

testamento annexo)

Administrator

Grant Probate Letters of administration cta

Letters of administration

Gift of land Giver Verb Recipient

Devise Devisor

Devise/give Devisee

Realty -

Heir-at-law (obsolete), next-of-kin

Gift of personalty Giver Verb Recipient

Bequest/legacy Testator

Bequeath/give Beneficiary/legatee

Personalty Intestate

- Next-of-kin

Testamentary Instruments:

Wills/Testament/codicils

Informal document

Individual

Have existed since the swide of the Anglo-saxons

Succession as a reflection of society’s theories about state, church and courts:

Norman times to 1540 – Impossible to dispose of land by will because most land was

held by feudal tenure on the basis of primogeniture (land descended to the eldest

son)

o The land would be divided between the widow’s part, the bairn’s part

(children) and the dead’s part (the church to pray for the dead)

o The Bishop acted as the executor

1540 onwards – The Statute of Wills provided that anyone who was seised in fee

simple of land held in common socage could devise that land unless they were femes

covert, idiots or insane.

o Statute of Frauds developed to require will be in writing, signed by the

testator and signed in the presence of 3-4 credible witnesses

1787 Charter of Justice in NSW – Ecclesiastical jurisdiction given to civil court then

Supreme Court

o At common law the Civil Court had the power to deal with inheritance of

personalty by will and intestacy (no church involvement)

1823 – Charter of Justice invested the NSW Supreme Court with authority to make

grants of probate and letters of administration with respect to personalty


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Current Developments:

Superannuation – Compulsory and big in Australia

Digital estate – The problem of property (difficult to access password protected

information)

Continuing expansion of concept of family – Recognition of de facto relationships,

registered relationships, gay marriage etc.

Supreme Court currently hears most matters in Equity Division

Comparative Succession Law:

Succession law in the present day context:

It is important to consider comparative law as practicing succession law in a

multicultural society will require a fundamental understanding of other cultures

Indigenous position:

Aboriginal people have rights to make a claim under their customary law when a

person dies intestate (Succession Act (NSW) 2006 Pt 4.4)

o Different state jurisdictions have different Aboriginal provisions

o Important not to make any assumptions – All Aboriginals are different (not

proper to consider them as traditional vs westernised)

o Can be difficult to specify relations under Indigenous law Blood relations

are not given great importance (must clearly identify persons)

Aboriginal culture does not place the same level of importance on

blood relations as Western society does

o Indigenous people should identify how/where they prefer to be laid to rest

(spiritual life believed to continue after death)

Will can require the executor to consult a particular person

Sunni Muslim Position (Malaysia):

Malaysian position differs from state to state Sharia courts deal with the Muslim

o The amount of money one has in an estate will influence the Court of

jurisdiction

1st claim = Sharers – Widow, parents, grandparents

2nd claim = Residuary – Children (see list of priorities below)

Males are give priority over the females

Only 1/3 can be disposed by will 2/3 is to be divided as per the Koran

Islamic conception of property is different – Does not matter where property comes

from

No primogeniture – All children are deemed equal in the eyes of Islamic law

ALL MUSLIM SCHOOLS OF THE LAW IS DIFFERENT

Islamic position: Property is passed to the spouse, parents and their lineal descendants, the

grandparents, brothers, sisters and their issue, then paternal relatives and so on.


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o Male agnates (descendants from a common male ancestor through male

links) are given preference over all other relatives as heirs.

Descendants, then ascendants then collateral relatives

o Right of a deceased to leave property by will is restricted to no more than

1/3 of the estate.

Under Sharia Law, the widow take 1/8th of the deceased estate… If there are no

children, the widow has an entitlement to 1/4

Adopted children are not recognised as beneficiaries under Sharia Law

Grandparents (if alive) are entitled to a greater benefit than children

Italian position: Civil code decided the amounts of the estate that are to go to certain parties on

intestacy (eg: if deceased dies leaving only 1 child then the spouse is only entitled to

half the estate)

o Significant limits are placed on testamentary freedom

1st beneficiaries (if no will) = Children in equal share, surviving spouse (may be

separated but not divorced) is entitled to 1/3 of the spouse

Partners (de facto) can only be entitled to inherit under a will

If a will is written, the Civil Code provides a statutory minimum (1/4 for spouse, ½ fr

the children) that each relative must get

o Forced heirs = Spouse and children… They must receive something!

The Italian Civil system has a range of different wills that may be enacted

Talmudic (Jewish) position: Main source of Jewish inheritance law = Torah

o Order of beneficiaries = Son, Daughter, Brother, Father’s brother, nearest

relative in his clan (Son is given all property if there is there is a son)

Sons are prioritised in Jewish law First born son is given a double

share

Sons also succeed to their mother’s estate

Sons are obliged to give their deceased father’s daughters part of his

estate as a dowry/present

o The mother’s family is not regarded as kin for the purpose of succession

Husband is the sole heir of the wife (all children are excluded)

o However wife is not an heir to the husband’s estate – Does however have a

right to claim maintenance and lodging from the husband’s estate

The Torah does not permit the giving away of gifts that will only vest after the death

of the testator. Prima facie, daughters are not heirs. The firstborn is entitled to a

double portion of the estate.

An adopted child does not inherit from his adoptive parents

o Can give an inter vivos gift to a person excluded from the will whilst one is

still alive. May be done via a kinyany (acquisition ceremony) whilst still alive,


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by a person who is ‘ill and confined to bed’ (EXACT OPPOSITE TO ISLAMIC LAW)

or if a person is contemplating death

Possible for a Talmudic person to create a debt to the daughter in order to give

them some inheritance (notional contract which shows that a debt is owed to the

daughter – As debts come first they are entitled to 1st preference over the estate)

Civil law systems – On marriage all property is jointly owned therefore property is

administered jointly.

Conflict of laws – The domicile of a person at the date of death will normally

determine the applicable law in relation to moveable property.

o Where a deceased has died intestate the law of the domicile will normally be

applied (Pipon v Pipon (1744) Amb 25)

Case study:

Susilo who is visiting from Malaysia. He is Muslim (Sunni) and wishes to know how his estate

will be dealt with in Australia. He is still young so he needs to have it explained to him

broadly.

Textbook:

Islamic inheritance law is characterised by a rigid insistence on dividing the inheritance

according to particular blood relationships to the deceased. Under Sunni Islamic law

preference is given to male agnates (descendants from a common male ancestor through

male links) over all other relatives as heirs.

Upon death, preference of a Sunni Muslim’s estate is given to descendants, than ascendants

and the collateral relatives. The right of the deceased to leave property by will is restricted

to no more than 1/3 of the estate

Faird S Shuaib – The Islamic System in Malaysia:

According to the Malaysian constitution, each state is free to enact its own version of

Islamic law, and is free to establish its own state Islamic courts to adjudicate disputes

arising under the state’s Islamic laws.

Ullah – The Muslim law of Inheritance:

The Muslim Law makes no distinction between the succession of real and personal

property, nor is there any difference as found under Hindu Law between ancestral

and self-acquired property

Under the Islamic Law all sons are inherit equally

The law takes into account the fact that the property of the deceased should be

applied primarily to the support of persons who were entitled to be first supported

by the deceased in his lifetime, and who have greatly suffered by his death


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o Muslim law requires that at least 2/3 shall be left for the near relations of the

deceased The testator cannot dispose of more than 1/3 by way of legacies

o Elderly parents (if they survive their children) are given a right to property as

they are old and decrepit and therefore in need of assistance

The Muslim law does not recognise adoption at all

As a general rule, the male sharer takes double the portion of a female sharer of the

same degree

o Males sharers (in order) = Husband, Father, True grandfather, half-brother by

mother

o Female sharers (in order) = Wife, Mother, true grandmother, daughter, son’s

daughter, full sister, half-sister by father, half-sister by mother

SEE TABLE P. 9 OF ULLAH ARTICLE (SAVED) FOR TABLE OF SHARERS

Primary heirs – (1) The parents (father and mother), (2) the child (sons and daughters)

(3) the heir by marriage (husband and wife)

The Right of Inheritance:

After incurring funeral expenses have been paid, all legacies must be paid out of a third

of what remains, and finally the whole of the reside is distributed amongst the heirs

by right of inheritance

The rule of primogeniture is not recognised All sons inherit equally along with the

eldest son

The portion fixed by the Koran are 6. The entitlements are as follows:

o 1/2 - Husband, daughter, son’s daughter, full sister, half-sister by father

o 1/4 - Husband, wife

o 1/8 – Wife or wives

o 2/3 – Daughters, son’s daughter, full or half-sister by father

o 1/3 – Mother, half-brother or sister by mother

o 1/6 – Father, true grandfather, mother, grand-mothers, one or more son’s

daughter’s, one of more half-sister by father, half-brother or sister by mother SEE P. 12-14 OF ULLAH ARTICLE (SAVED) FOR TABLE OF SHARERS UNDER

MUSLIM LAW

Classes of Residuaries: SEE P. 15 ULLAH (SAVED) FOR FULL LIST OF RESIDUARIES

(1) The offspring of the deceased - His son’s and son’s sons, daughters and son’s

daughters when not sharers

o Male member takes double share (daughter gets ½ of each son’s share)

(2) The root of the deceased – His father and true grandfather

(3) The offspring of the father – Brothers and their sons, sisters when not sharers

(4) The offspring of the true grandfather – Paternal uncles and great uncles and their

male descendants in the male line

The husband, wife, father, mother and daughter are not liable to be excluded (other

may be excluded)

o May also partially excluded one by reducing the share they are entitled to


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The Fundamental Rules:

A person related to the deceased through any person shall not inherit while that

person is alive

There is no representation

The strength of consanguinity/blood-relationship determine preference

The degree of relationship is equal then as a general rule a male sharer takes double

the portion of a female sharer of the same degree

Under the Hanafi system the order is descendants, ascendants and collaterals

The doctrine of increase – When it is found out that the sum total of the fractions to

which several sharers are entitled exceeds unity, then they must all abate rateably

The doctrine of return – When after assigning shares to all sharers, there is a surplus,

and there being no residuary the residue reverts to the sharers in proportion to their

respective shares

o Mother, true grandmother, daughter, son’s daughter, full sister, half-sister

and half-brother on mother side are entitle to return

A child in the womb of its mother, will be entitled to inherit, if born alive

Under the Sunni Hanafi Law an illegitimate child does not inherit from the father, it

inherits from the mother and they inherit from him.


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Class 2 – Relationships of Succession; Boundaries of Succession

The Relationships of Succession:

What is family?

Family in succession – Group of relationships included in the applicable scheme for

succession purposes

o Broadly speaking, there is a shift away from formal definition of family and

greater recognition of marriage-like relationships (and adoption etc)

Often need a will as the legal and personal perception of who is part of your family

can often be very different

How English law defined family for succession purposes:

Occasions for definition:

Family was historically defined by defining the ordinary meaning of terms such as

‘children’ and by recognising those who are the heir to real estate and the next of kin

The heir-at-law, Next-of-kin:

Heir-at-law was the person who took the land

The heir at law in English History was determined according to a parentelic calculus –

All living persons who traced their blood to the deceased

o Distinction was made between lineal (direct descent) and collateral (not

direct such as brother and sisters) relatives

Relatives of half-blood were not included as heirs at law

Males were preferred to males

Next-of kin is based on the degrees of distance that an individual has from the

person deceased (see table p. 43)

o The furthest Australian succession law goes in Australia is the 4th degree

(Everything up to first cousins)

Children:

Legitimacy - The principle question in English history was whether the child was

legitimate or not (enormous stigma in English history)

o The legitimate child was within the definition of family whereas the

illegitimate child was not

o Legitimacy as defined by reference to marriage Born inside or outside of a

marriage? (Differentiation remained until Status of Children Act in 1996)

Common law permitted a child to be legitimised by subsequent

marriage of the parents

o Illegitimate children were unable to inherit from their father

o Mantle Children – Illegitimate children became legitimate upon the parent’s

later marrying (church would throw its ‘mantle of protection over the child)

Construction of instruments – The courts would take the approach that a just and

proper construction and interpretation of the words used in a will are to be applied


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o Child was presumed as meaning legitimate… To include illegitimate children

the intention had to be plainly expressed

o Pigg v Clarke (1876) reiterated the long-standing rule that family is

interpreted as children

o The ordinary meaning of child does not include a step-child (Popple v Rowe)

The posthumous child (child born after male dies) – At common law, the child was

considered the child of the dead husband if it were born within 40 weeks, or close to

it, of his death.

How Australian law defines family for succession:

Context for definition:

As the family are the successor where there is no will, defining family membership is

a keystone in understanding the operation of rules in relation to inheritance

o Main trend in family is the recognition given to relationships outside formal

marriage and blood relationships

Definition (as per ASB 2006) – “2 or more persons, one of whom is at least 15 years

of age, who are related by blood, marriage (registered or de facto), adoption, step

or fostering, who live in the same household”

Status of children:

Eligibility of children is important as they are the first people who are able to make a

claim under the Family Provision Act

Illegitimacy - s 6(4) Status of Children Act 1996 (NSW) abolished the status of illegitimacy

All children are now regarded as equal

o NOTE: The legislation is not retrospective (pre 1 July 1977 wills may still be

interpreted as giving a differential meaning to illegitimate children)

Adoption – An adoption order will allow an adopted child to be considered the same

as a natural born child (s 95 Adoption Act 2000 (NSW))

o An adoptive relationship replaces for all purposes the natural relationship

o An adoption order severs all old relationships and creates new relationships

with the adoption parents

Exceptions (when the order is ignored) – Incest matter (former

relatives), where there is a contingent interest in the adopted child

(eg: a child is entitled to a gift under a will however adoption order

severs the relationships Child will be able to claim this gift)

Also special circumstances for ATSI children

o An adoption after the date of a will (eg: a grandchild become adopted

however is not named in the will) does not allow one to benefit

Assisted reproduction – The women is conclusively presumed to be the mother and

her de facto partner the father thus a child born via assisted reproduction has the

same rights as a natural born child

o Estate of K (1996) 5 Tas R 365 – Frozen embryos used after a husband’s death =

Child of the husband


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o s 36, 38 Assisted Reproduction Technology Act NSW (2007) – Donor’s of sperm

are no longer able to remain secret Breach of their confidentiality?

Step-children – Relationship of affinity not blood

o They are not included in the legislative meaning of a ‘child’ (Popple v Rowe)

o No regraded as the child under Family Provision or Intestacy rules

May be overcome by adoption by the step-parent

Spouses and marriage-like relationships:

Spouses – A person is a spouse when married… If a marriage dissolves that person is

no longer a spouse (NOTE: State and territory laws may allow de facto’s or same-sex

couple to be regarded as spouses)

o Recent shift has been to extend the definition of a spouse beyond the

marriage

Civil partners – Civil partners are not married but the consequences under state and

territory law may give rights equivalent to marriage.

De facto/domestic partners

o s 21C Interpretation Act 1987 – ‘De facto’ = Person living in a relationship as a

couple and are not married or related by family

Range of factors are considered (see p. 59)

o s 104 Succession Act 2006 – Spouse = Person married or a person a party to a

domestic relationship (at the date of death)

s 105 Succession Act 2006 – Domestic partnership = A de facto

relationship that has been in existence for a continuous period of 2

years (before death of intestate) or has resulted in the birth of a child

o s 57 Succession Act 2006 – Eligible person = Wife or husband, person living in a

de facto relationship, a person living in a close personal relationship

o s 3(3) Succession Act 2006 – Close personal relationship = Living together, one

of each of who provides the other with domestic support and personal care

Former spouses, de facto or domestic partners – A former spouse may be eligible to

apply for family provision in all jurisdictions

o May be on the grounds of a maintenance requirement where the person is

entitled to receive maintenance from the deceased at his/her time of death

Succession Act 2006 s 57(1)(e) – A former de facto spouse may qualify to

inherit not as a de facto spouse but on the basis of being dependant

o Parties not living together is generally an indication that they are not in a de

facto relationship

Conversely, just because two people live together does not make

them a de facto relationship

Mutual commitment to a shared life is the best indicator Question

of fact considering the relationship as a whole!

Divorce – A married couple going through a divorce are still entitled to intestacy until

the final decree absolute is given (30 days after a 12 month period of separation)

o Judge may always exercise a discretion to deny a person in long-term

separation of entitlement to property

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