This document provides a summary of succession law reforms in New South Wales in 2011. It discusses reforms to wills such as the dispensing power and rectification. It also discusses statutory wills, family provision claims, intestacy rules, and notional estate provisions. The document is intended to inform about recent changes and developments in succession law in New South Wales.

1. Succession Law Reform in New South Wales 2011 Update Professor Rosalind Croucher

2. Wills

4. Does the document embody testamentary intentions?

6. Deceased intended to divide residue into six shares – one to Justin and his wife jointly, not additional one to Justin (7th share) Will rectified – six shares Estate of Davis [2010] NSWSC 989 Rectification

7. Rectification

8. “My home 11 Grevillea St” Rectification = ademption residue ????

9. Instructions? solicitor’s note – “if house sold for retirement unit, then residue to be divided” “name down for Anglicare unit” deceased wanted to benefit daughter more than son Rectification

10. new will prepared after sale: “all of the monies which will be refunded from RSL Lifecare for the residency agreement that I am a party to for Villa 1” she died before signing new will will rectified – gift caught new form Estate of Tait; Vesco v Bannister [2010] NSWSC 1274 Rectification

11. Statutory wills

12. Statutory wills The will is one that the incapable person: would have made; would be reasonably likely to have made Succession Act s 22(b)

13. ?????????????????????????? 12 Statutory wills lost capacity nil capacity

14. Lost capacity: consider the person’s – relationships history personality size of the estate previous wills Re Fenwick [2009] NSWSC 530 Statutory wills

15. What if there is no will? don’t start with a presumption against intestacy but there’s probably some evidence to satisfy the court that person intended, at some stage, to make a will if insufficient evidence then applicant fails Re Fenwick [2009] NSWSC 530 Statutory wills

16. ‘[i]t is a serious matter for the Court to appropriate to itself the will-making power of the citizen’. Re Will of Jane [2011] NSWSC 624, [84]. Statutory wills

18. beneficiaries

19. spouse, children or parents

20. next of kin

21. creditorSuccession Act s 54

22. Family Provision

23. Family Provision

24. (a) the husband or wife (b) de facto child former spouse sometime dependant close personal relationship Succession Act s 57 Eligibility

25. Carers? s 57(f) – ‘close personal relationship? s 3(3) – living together, providing domestic support and personal care s 3(4) – not satisfied if for fee or reward on behalf of an organisation Eligibility

26. Adult children patterns: the dutiful child rewarded under the will, facing a claim by an estranged/undutiful child the needy child rewarded under the will facing a claim by siblings who are not needy Family Provision

28. 40% to Michael

29. residue to Michael and three sisters (not Lynne)Andrew v Andrew [2011] NSWSC 115

30. Evaluating claims Key messages: it is not about re-writing wills it is not about ‘fairness’ from a child’s viewpoint it is not about ‘equity’ between children parents are still able to make judgments about the worthiness of their children

31. Evaluating claims a parent is not expected to provide forever for children a child who is still dependent may have a continuing claim the community may expect a parent to provide a ‘buffer against contingencies’ for a child who falls on hard times – depends on size of estate and competing claims

32. 25 Gut instincts

33. Section 60 factors, include – applicant’s contribution to estate or welfare of the deceased (financial or otherwise) deceased’s contribution to applicant character and conduct of applicant evidence of what testator wanted Evaluating claims

34. What is the reason? Needs of plaintiff, size of estate, other claims? Deceased is entitled to make no provision for a child who treats their parents callously Estrangement

35. Result Estrangement not the fault of the deceased – and over 35 years Good relationship continued with other children Testator entitled to make little provision for child who withholds support and love without justification Conduct and need inter-related

36. Property Notional estate – Part 3.3 entering a prescribed transaction timing deeming

37. Eg – joint tenancy = prescribed transaction – s 76(2)(b) takes effect on death – s 77(3) should it be deemed? – ss 78, 83 Property

38. Avoidance strategy? give cash gifts – but note pension impact give away movables – deed of gift but retain possession as custodian? > 3 years if possible provide reasons – to explain, if needed Property

39. Richard Pratt

40. Richard Pratt

41. Property movables immovables Pratt’s domicile

42. Property movables immovables movables immovables testator’s domicile movables immovables

43. Pratt’s property Did Pratt leave property in NSW? no actual estate notional estate claims over properties held by companies – Pratt a director Fiduciary duty No notional estate

44. Capacity difference from prior wills? explanations for change? inofficious? need to take a cautious approach Probate

45. Intestacy

46. Next of kin

47. Family tree … Gt Grandmother Gt Grandfather Gt-Uncle Grandfather Grandmother First Cousins once removed Mother Father Uncle First Cousins Intestate Sister Brother Second Cousins Children First Cousins once removed Niece Nephew Second Cousins once removed Grandchildren Gt-niece Gt-nephew

48. Per stirpes… Intestate Brother Sister NephewTwo Niece NephewOne Gt-niece Gt-nephew

49. Siblings: two shares Sister predeceased leaving surviving issue Sister’s share: divided into two Niece’s s share divided between her two children Nephew Two gets nothing Per stirpes…

50. Per stirpes… Intestate Brother = 50% Sister’s share = 50% NephewTwo = 0% Niece’s share = 25% NephewOne = 25% Gt-niece= 12.5% Gt-nephew= 12.5%

52. ALRC papers and speeches – www.alrc.gov.au