Tara (00:50):
Thank you so much for tuning into the podcast. I've got another really special episode for us today. So we have a guest presenter, Timothy Morton, who is a partner at Glass Goodwin in Canberra and Timothy presented to the Art of Estate Planning Facebook group about Will Disputes 101 and stepped us through some of the key grounds for being able to challenge a will.
(01:21):
Now whether you are just doing planning or if you do planning and litigation and disputes, I think you will get so much out of this session with Timothy. It's completely obvious as we go through how much knowledge he has on this topic and I'm so grateful that he was able to share a little bit of his insights and experience with us through this topic.
(01:49):
Now throughout the episode, Tim mentions a lot of cases, so check out the show notes. I've set out all of the case names and their citations and I've also linked the full YouTube video as well. If you want to actually follow along with the slides, you can watch the full presentation there. I hope you enjoy this as much as I did. Over to you Tim.
Timothy (02:15):
I wanted to first give you a bit of an overview of where I wanted to take it and then move it into informal will disputes sort of following the, if you will, the life cycle of a will, which seems almost like a contradiction in terms but I liked it. Then move to essential validity, move to which sometimes called substantive validity, family provision claims and then administration claims. So wills as I think that life cycle that I've set out previously emphasises they'll face challenges at various stages. Perhaps at the very beginning, perhaps after the administration's soundly complete. Some plaintiffs will commence proceedings on the last day that they're eligible to do so out of bloody spite. It happens all the time. It can happen years after the fact. One that always jumps to mind for me is Dickman and Holly Estate of Simpson where probate was granted years prior, but the grant was ultimately revoked following that application.
(03:18):
That's no surprise to many of us. Grants as probate in common form or administration in common form are inherently revocable, but it serves to emphasise that these issues can pop up at all sorts of stages and that's perhaps part of the fun. This is the point I was going to make at the start and I want to make it now, which is that we often talk about being a planner or a litigator, but I just think the binary is not accurate as they so often aren't. Planners are key allies to litigators. I am both probably fair to say I'm seen more as litigator these days, but I love my planning matters. Estate planning skills are entirely transferable. Good drafting is essential. Legal work is essential lawyering. I think the skill that we hone as planners is anticipating future changes of circumstances, issues that may arise and drafting to try to deal with them as best we can.
(04:14):
That's exactly the skill you deploy when you are preparing a statement of claim or you are preparing an affidavit. It's clear communication and I think that's the skill that many litigation lawyers could benefit from and a lot of the planner could teach. I appreciate though as is so often the case while estate planning skills are transferable and you can probably do it, the litigation, it does require a lot of time. Part of the reason many of you I'm sure do focus on planning is you can structure your life around it. I'm going to take this meeting here, I'm going to book you in for signing appointment there. Your life around that can be managed. The reality is litigation does not allow that again, part of the fund. So I want to deal briefly then with these primary areas of challenge. This is by no means comprehensive.
(05:03):
I've probably left out a lot more. I've certainly left out a lot more than I've put in. You could have entire presentations devoted to even parts of what we discuss here. We'll move on then to informal will disputes. This is an area that I've got quite a passion for. I like informal will disputes, partly because as a baby lawyer it was the first appearance I ever had before a judge then master mossop of the ACT Supreme Court. Now he's a full judge. He was very kind, very, very patient to appear before. I think he identified early that I was a baby lawyer and offered a few answers to questions that I just didn't have. Now not everyone will have the same experience. You'll have other judges who will treat you differently. I was lucky I guess that I had a nice judge to appear before that didn't make it a horrendous experience.
(05:54):
So the first requirement for a will first step in this lifecycle is you want to have a document that's got formal validity. That is to say it's been signed by two adult witnesses by the test data in front of two adult witnesses. The law varies from jurisdiction to jurisdiction as to whether beneficiaries can be witnesses generally don't. The acts expressly removed the witness beneficiary rule. The state of New South Wales still has it. I'm pretty sure Queensland has it. I'm sure someone will jump in and correct me there. I'm focusing here on New South Wales law, so forgive me if anything doesn't map directly on your jurisdiction. They are broadly similar and perhaps comments will address some of the differences from jurisdiction to jurisdiction. So I've just brought up here the wording of section six, which sets out exactly what needs to happen for a valid will.
(06:51):
I've excluded a few parts that are not particularly relevant. You just need two witnesses together signing off on the will together with the will maker note in New South Wales. The signatures made or acknowledged by the test data in the presence of two witnesses present at the same time. So that does provide for a scenario where the will maker could have signed it and then acknowledged the signature and then the two witnesses sign off on it. Not all jurisdictions have the same, so the standard approach is always best everyone together, sign, sign, sign, done. The act provides that the witnesses don't need to appreciate that they're signing a will, just that they're signing a document. So it is not a barrier to formal validity that the person, the witnesses didn't realise they were witnessing a will. That shouldn't come up though many other issues do.
(07:39):
You've got plenty of opportunities for deficiencies in formal execution. A few examples off the top of my head, final draughts not being executed, probably the one we agonise about most. As planners, the execution copies being swapped by the spouses seems to happen an awful lot more than we might think. Only the deceased signs the will. It's not witnessed by anybody else or the documents are discovered that contain directions for the distribution of the estate in amongst other documents, giving it a degree of authority perhaps as a testamentary document. It's worth flagging upfront here that necessarily in this space we're dealing with documents that don't have a witness and a lot of these sorts of documents involve discussions of suicide. So just be aware that that is a topic when you're talking about informal wills and that comes up in several of these cases. So when can we dispense with the formalities helpfully?
(08:36):
The jurisdictions are fairly aligned on this point. So hat aura and hat aura prior to an action of the succession act. Justice Powell summarised Section 18 A of the Wealth Probative Administration Act, which is the predecessor provision to say that there needs to be a document. The document needs to contain intentions and that the person has to intend that document to be there will without law. We see that come up a bit. I'm going to come back to without law in a moment, but you can see that test clearly spelled out in the legislation. So first you want a document or a part of a document, then you want it to contain testamentary intentions. Then the court has to be satisfied that the person intended it to form their will or an alteration to the will or a partial revocation of the will, whatever the case might be.
(09:27):
I had one where the deceased wrote over the top of it, the word cancelled what whole will wrote across the whole front cancelled and then made a note that he'd made a new will. He never ultimately finished making that will. He did start drafting it, but he lost capacity before he could execute it. So there are a few interesting issues that throws up. Was that a section eight partial revocation or full revocation or was it conditional on him having made a new will by the time he died? As is so often the case that estate assets didn't justify a full hearing of the matter, but it would've been interesting to work out. So document pretty easy. This one, the definition of documents really broad. I say that the challenge is probably finding something that can't be regarded as a document. It's anything on which there is writing and it marks, figures, symbols, perforations that can be interpreted.
(10:20):
Anything from which sounds images, writings can be reproduced with or without the way aid of anything else. So map, plan, drawing or photograph. So anything realistically could be a will if you can take meaning from it. For example, it could be a Word document, it could be a wall on which there's writing. It could be an unsent document on a phone, it could be a video, it could be a draught that hasn't yet been signed or even perhaps cited by the deceased person. So that out of the way. Let's move to testamentary intentions, which is I'm going to go ahead and say going to be fairly intuitive for most of you it's got to contain testamentary intentions and that has been summarised in a lot of cases case that most judges refer back to as Masters Hill and Plumber. You're looking for a document in which a person says what that person intends to be done with that person's property upon death.
(11:14):
That seems to me to be a document which embodies the testamentary intentions of that person. I go back to Yasbeck and Yasbeck a lot. It's a very useful case that steps out the test in some detail. That was a case where it was a Word document and I'll come back to some of those examples soon so we know what testamentary intentions are. We want to be seeing gifts of property, not expressions of wish we don't want to be seeing. We'd hope they do this. It's dispositive, it's directional, it's appointing. That's the kind of wording we're looking for. This is the hard part. The part that all these wills fall down on or get up on, I say all, almost all of them will the person has to intend that document to be their will or amend their will or a partially in full revoke their will.
(12:03):
I've referred to this without more tests from. It's not a test comment from has Taurus hath Taurus. Really what you are looking for though is a document in final form, a document that the deceased wants to apply as their will From that point, there's no requirement that the person form this intention When the document is created for the first time, it can come up at any stage. There are examples in the case law of people having created documents and there being no evidence, positive evidence at all that they intended it to be their will until some late stage. They hand it to a friend and say, can you look after this? That act of handing it to the friend is an indication that they intended that document to have some kind of effect. From that point on, it was some sort of final form equally in yazbek that I'll come back to soon, a lot of the evidence focused on computer evidence, the deceased accessed the will on this occasion, on this occasion, on this occasion.
(13:06):
There was an interesting discussion about whether he had printed it and whether having printed it and destroyed it, did that have effect to revoke the will or destroy the will, the attention of revoking it. The old lost will cases that didn't come up as an issue ultimately, but there was a lot of evidence that he accessed it, he'd modified it, he'd accessed it without modifying it. So the character of his storage of the document and the fact that he ultimately didn't change it was held ultimate to the evidence that he intended that document to be a final form. Estate Angus we talks about but without more tests, Helen will come up a lot in all of this discussion. His view in anus is that it doesn't add anything. It just requires you to focus on the wording of the test. That is do they intend that document to be their will?
(14:01):
There's nothing more required of it, it's just a gloss on statute. So many things get relevant to a search for finality and for some sort of conclusion that they intend that document to be their will where it's been stored. Circumstances of creation, which is a perhaps euphemistic way of saying they were writing it when they were actively contemplating their death, the character of the custody of the document, the presence or otherwise of a signature. The example there of handing a document to a trusted friend. These are not any by any means exhaustive. These are just examples that you can see from the case law where these sorts of wills have been found to be valid and formal wills, so I've given a range of examples here. Word documents yazbek. He ultimately did take his own life in this particular matter but it wasn't a suicide note by any means.
(14:51):
It was a deliberative document he worked on for a long time and then he finally told everyone where it was before he did die. I've given white Montgomery there from the Victoria Supreme Court again a discussion about a Microsoft Word document being the will, the famous estate of living ski, the South Australian Supreme Court case where there's writing on the wall and that writing ends up being admitted to probate as the will even if you can't get the wall into the probate file, the unsent documents you've got nickel, that famous Queensland case with the unsent text message. Again, the tragic circumstances, there were obvious reasons he didn't send the text messages but he left it there for them for it to be found later the same. Ultimately that turned into a construction case as well because the wording and the will said I give my cash to particular people and there was an issue about, well does cash mean long service leave?
(15:50):
Does it mean superannuation death benefits? So informal will's expensive documents a video Sanko wife Van Chan certainly Chan, it was admitted to probate. I can't remember sanko outcome off top of my head right now, but suffice to say videos are fine to be admitted to probate query whether if someone were to sign that USB or that VHS tape with two witnesses, whether that would be sufficient attestation that it's a valid will or if it still would require informal admission as an informal document. An unsigned final draught in Mitchell and Mitchell, the WA Supreme Court approved unsigned final draught in circumstances where the deceased finalised their instructions, went off and had a shower and died, had a heart attack in the shower under those circumstances because the form of the will was finalised, the court was happy to admit it to probate. Those cases have a bit of discussion about this whole without more element in whether it's something that's of any utility.
(16:54):
You've got Somerville Walsh, I've give it as an example, mostly cited as a solicitor liability case but had the provisions existed or been available in form that we have them now in this jurisprudence that we now have query whether the final draught of the will that was presented would've been admitted to probate in that particular matter. The deceased court was badly burned in hospital. He called a mate who was a solicitor, wanted him to update his will mate updates the will turns up to the hospital, realises the deceased is unable to hold a pen or sign or do anything like that and so they ultimately don't sign it. He ends up getting sued by the intended beneficiary of that will and part of the criticism there was, well the solicitor should have known you could have signed it in the presence and at the direction of, so reading your act is 101 lawyering.
(17:50):
Nevertheless, we had a final form of a document that arguably could have been admitted to of the dispensing provisions in the estate of optic is a fun one. I actually appeared in that one as counsel and the reason that was ultimately admitted was that it was held in a folder which in Estonian on the front had been written wills and it was all the documents that you would need to administer this guy's estate together with this handwritten document that disposed of his estate. There was evidence that he intended to take it to a lawyer and formalise it, but ultimately it was traced back to this folder. It was unsigned, it was handwritten but admitted to probate without any signature on it and on that point, for anyone that wants to try appearances for this sort of stuff, it's probably one of the safer areas to appear because the test is fairly narrow if you do your homework.
(18:42):
The judge was actually against me at the start. She said, Mr. Morton, haven't you read my decision from last week? I require at least a signature. I said, well your Honour, I'm going to take you to this, take you to that. Ultimately she changed her mind because of the chain of custody, the way at which it was held at the property. So do the homework, don't be persuaded or dissuaded by judges who ask those sorts of questions because it doesn't mean you're going to fail, it just means you've got to explain it to them and then we've got final versions having been swapped the state of Blakely and a state of daily. The state of daily is useful because prior judges had looked at the rectification power as an approach to fix a will in circumstances where couples have switched the wills and signed their spouses rather than their own.
(19:27):
So the rectification provisions have been used in the past to eliminate the other person's name and replace it with their name and do all the appropriate other changes throughout the document. In daily, the court expressed a preference for the dispensing power because it fits far more neatly. You've got a document that is a final form it's going to get signed. They signed their other one, the other document that was their spouses. They intended this document to be their will, so just admit it. All the circumstances fit perfectly so rectification not to be used in the Supreme Court based on that. Well at least for these sorts of matters, use it for lots of other matters procedurally, if you're going to seek a grant of an informal will, you're going to have to serve notice on anyone who might be adversely affected by the grant issuing.
(20:17):
That same issue applies if you are seeking to not obtain a grant of the informal will. I've got one at the minute where that's exactly what we're doing. We've said, yeah, look, this will exist. We've actually tried to get a grant to probate in relation to it. The registry isn't having it, so we've taken a step back reevaluated and applying for probated, the penultimate will, but we've had to give notice to an organisation that is a beneficiary under that will under that amended informal will and they are taking an active role. They've got things to say, which is fine, we're working with them, but you've got to give notice. You can't just run off and get a grant and pretend that no one's going to care because the court's going to care, the registry's going to care. An affected party can simply file an appearance in those probate proceedings and then they'll become a party as a contested probate matter.
(21:13):
That's obviously a little bit risky. Then they're exposed to costs as well, but nevertheless that's procedurally what they need to do. So that's informal will disputes, lots of content, lots of examples there and certainly an area that anyone that wants to try their handed appearances I would say is fairly safe. Essential validity clients, substantive validity as it's sometimes called. What we're looking for here is for the will to be the last will of a free and capable test data. I like to grab that as a broad statement of what the court's looking for here because you can see a few elements there, right? You've got, is it their last will? Are they free? Are they feeling free and doing that? Are they capable to do that? And a lot of the causes of action in this jurisdiction come from the word free or from that word hot capable.
(22:06):
I've listed a few of them there. You've got testamentary capacity, which is what I think most of us focus on. I'll skip undue influences for a moment. Move straight to knowledge and approval, which is sometimes charitably referred to as poor man's capacity. It's a different test, it's a different framework, but it's ultimately going for the same outcome. Undue influence and fraud are two sides of the same coin. Undue influence. You're looking at overbearing. Somebody's will such that they're not able to say no, they're not able to exercise their free will in relation to the terms of their will. Fraud operates instead on their perception of circumstances, so they're still free to do it, it's just that they wouldn't do it had they been appraised of the true facts. Fraud doesn't come up a lot. I see testamentary capacity, undue influence knowledge approval discussed a lot.
(23:08):
Fraud doesn't get discussed a lot. It won't be discussed a lot here, but be aware that it's out there. Fundamentally, probate litigation is interest based. This applies equally to informal wills disputes. You need to have some kind of interest in the estate if you're going to be a party to proceedings in relation to that estate. If you don't, you're going to get booted out pretty quickly with costs. If you do have a sufficient interest then you can file a caveat. I mean you can put it in sharp focus if anyone could file a caveat, right? I could file a caveat on the Bob Hawker estate back in the day. If I did so though I would be exposed to costs because I don't have an interest in the estate. I'll get booted out pretty quickly. So the court would give that sort of application. Short shrift, you've got to file the caveat yet for the grant issues.
(23:57):
Don't go filing it after probate's been granted. Got an example on the slide coming up where someone did exactly that. I don't know what they were thinking but we'll explore it a little bit. You've got three broad types of caveat. You've got a general caveat under the Supreme Court rules part 78, rule 66. That is a caveat that says don't issue a grant without notice to me. Make sure I'm aware before you go ahead and issue a grant to anyone in relation to this deceased person. You can file a caveat around an informal document concerning an informal document saying that there's something else out there that should be had regard to or you can file a caveat requiring a grant in solemn form. A caveat doesn't prevent a grant. It might delay it a little bit. It just requires notice. So once you've got that notice and you're aware that someone's applying for probate, it's on you to either take the next steps or that caveat will indu course lapse and probate will be granted.
(24:56):
So you've got notice your chance to act if you want to. The caveat has to fully state the basis of the caveat and it's got to at least put you in a position where you can produce a primer Phasey case. You can't be speculative, you can't certainly say, I've got a family provision claim, therefore I'm filing a caveat. That's not a proper basis to file a caveat. Such caveats are going to be removed with costs re estate. Kaplan is a great case to have a look through if you want to have an overview from the court's perspective of the law in relation to caveats, it explores it in some detail and classic Helen clarity, sorry, I think it's Helen, perhaps it's another judge. In any event, it's a useful decision to refer to. I had one matter years ago where someone filed a caveat, there was just no evidence, there was nothing.
(25:46):
It was completely baseless. We put on a notice of motion to have it ceased to have effect and they withdrew the caveat before the hearing didn't work. There were still proceedings on, they still had to turn up. They still got a cost sort so I would be cautious about filing caveats but I'd be aggressive about having them flicked if there's no basis to them. Copeland and Ellison Hall is the case that I wanted to refer to about caveats being filed post-grant in this matter. Probate had been granted and someone then came in sometime down the track and filed a caveat requiring proofing solemn form. They provided some really rudimentary argument as to why there was an issue about capacity and I think the strategy was, well once we've given sufficient evidence that puts an obligation on the executor to get to prove will in solemn form and they won't be able to do that and so we then win by default.
(26:48):
It was clever but probably not in the good way because in this instance there was no basis for the caveat it was removed and costs were ordered against the caveat at all. I'm fairly sure they were judgement proof though. So cold comfort given the kind of effort you have to go to deal with these kinds of matters. I've spoken there about how you remove a caveat, you can remove it by summons if probate has not yet been applied for or notice of motion if you have already applied for probate and the basic reasoning for that is if a caveat's been filed then and there's no case number yet, you need to create a case number in order to get it in front of the court. So the summons is how you create the case number. If there's already a case number because you've filed your summons and someone subsequently files a caveat, then you can file a notice of motion instead and that notice of motion operates within as an interlocutory proceeding within the probate matter number.
(27:50):
So the order that a caveat ceased to have effect cease to be enforced, I should say will be made if the caveat to cannot establish an interest or there is no doubt and there is no doubt that probate should be granted. You're looking for a genuine argument. You're not looking for a speculative maybe claim. You are looking for as Halen summarises in cat that there are circumstances that warrant investigation as reasonably require the matter to proceed as a fully contested suit before the court, before the short court should consider making a grant of probate in respect to the will. So you're looking for a real dispute. You're not looking for leverage, someone that's trying to use that as leverage to get a better outcome for themselves. You are looking for something that justifies a fully contested suit. Now I've got a matter by way of example where we're pretty comfortable, there's no basis.
(28:52):
We've got a report from the deceased happened to be seeing a geriatrician but not in her capacity as a geriatrician. So we've got a rather helpful report that says she couldn't conclude that she didn't have capacity. There's just nothing that no evidence to justify that in her opinion as a specialist. And we've got an affidavit from the solicitor that prepared it that says here's the process I went through, I had no issue about or no questions about her capacity. So it's an entirely speculative claim and we're in that range of, we don't think that this justifies a fully contested suit, we just don't. But what they want to do is they want to say, we'll give us some money so we'll go away. They've asked for an absurd amount and I'm waiting this week I think for replies to whether they're going to accept our very reasonable and generous offer.
(29:39):
Otherwise I get to go down this path so it's all relevant to what I'm doing now as to whether someone has an interest, a person will have a sufficient interest if he or she has a right which would be affected by the grant. It's a helpful high court commentary, albeit very brief. So it's a pretty low bar. You should be able to flop over it but you've got to flop over it still. You've got to have evidence that justifies a fully contested suit. It doesn't need to justify victory, it doesn't need to say that you're going to win. It needs, however to say it should be heard by a court before a court thinks it's safe to grant probate. And I shouldn't say that, that statement in lineage has been referred to by other judges with approval previously they referred to as a party and now they're referring more to cat lineage.
(30:26):
Alright, for us kv. It's done testamentary capacity. There's not an awful lot of content that we can say about capacity beyond the test and a few things you might look at the old wording from banks and goodfellow is there. You need to understand the nature of the act and its effects that is making a will understand the extent the property of which they're disposing. They should be able to comprehend and appreciate the claims to which they ought to give effect and that no disorder of the mine poisons, his affections, et cetera, et cetera. So old language helpfully restated in current hoison where you've got the three affirmative elements and one negative element. So first the deceased must be able to understand the act of making the will and understand its nature, have to understand the extent of their property that's going to be subject to the will and must be able to comprehend moral claims of potential beneficiaries and you can't have any condition that's affecting their testamentary decision making and that affecting element is critical.
(31:25):
So you've got that nexus. You can see, I like to use these two cases as an example here, timber and coffee. The deceased was an alcoholic. He had alcohol induced dementia, believed his wife was cheating on him and so made a will on the hood of his car while he was on holiday. It's weird how some of these little details stick with you and ultimately that was held to be a delusion that vitiated the will. So he went back to the previous will because she wasn't, she was fine, he was just troubled. That doesn't mean though that being troubled means you can't make a will. So in a state cockle and paisley, you had a person who believed that they were a relative of the queen of Denmark. They were quite florid, but the solicitor was careful, took instructions, cook rational instructions, actionable instructions, and those delusions ultimately didn't affect the testamentary decision making.
(32:17):
So the will got up. It's a good example of exactly what follows here, which is dementia diagnoses or old age don't give rise to any sort of presumption against capacity. In fact, solicitors, if you can extract rational actionable instructions, you should make the world. It's only in circumstances where you are absolutely dead certain that the will, they don't have capacity, that you shouldn't do that. That's extreme. It's going to be rarely the case that someone's coming to talk to you and you're going to say clearly absolutely zero capacity. It might have happened but it's rare. So make the will but potentially consider making a statutory will as well potentially consider making very detailed notes because ultimately your obligations to the court and the administration of justice before the client, it's for the court to determine whether someone has capacity, not us necessarily not as a final statement Anyway on the notes issue and on the detailed instructions, remember that our records as solicitors is going to be regularly relied upon by a court and often in preference to that of an expert that hasn't met the deceased.
(33:24):
I've given Peacock and Knox as an example there where a lay opinion was favoured the view of a medical expert. You could also look at in the ACT, the estate of Walker, Walker and Walker where I didn't get the will turned over. I thought I would, but I didn't. But in that case, the solicitor unfortunately didn't keep very good notes and so there was just nothing that the court could point to in that regard. But it's that reaching for the solicitor's notes that you should have regard to take notes and keep them safe for extended period, preferably forever. The other thing to consider is should you record will making exercises. I understand the reluctance, I don't like the sound of my own voice, but it's a record the court might find extremely useful. If you look for example at past the past case and the past and ti and the ACT, that was an example where the will making process was recorded and that was of use to the court ultimately resulted in the will.
(34:29):
Getting up undue influence is rare. You are looking for a complete overbearing of the will of a person such that they cannot voluntarily do otherwise. Summarised here in the trust Salvation Army and Becca undue influence in a probate context is constituted by conduct that overbears the will of the will maker such that they make the will without intending and desiring the disposition made thereby so it completely overrides their volition in respect of making a will that they want to make. You are not looking for pressure, you are not looking for mere persuasion or cajoling. Those are fine in a probate context. It is the overbearing of the will such that they could do no other Petrovsky v Nasev was I think the first case where it was found in Australia for over a hundred years as an instructive point to start from, I would never, and in fact as a matter of course, I do not plead undue influence when I'm acting in probate proceedings unless it's very apparent from all the documents in front of me because it's too hard.
(35:35):
Knowledge and approval is exactly what you think you're looking for. The will maker knowing what they're signing and approving of the contents usually sufficient to rely on the fact that they signed it. That does give rise to presumptions from due execution. You're looking for it being a reasonable disposition that's nothing outrageous on its face and it's duly executed. That gives rises to presumption in favour of capacity, capacity, add knowledge of approval I should say. The existence of suspicious circumstances, however, will reverse an onus of proof. That burden's going to vary significantly with the circumstances. You can look at pastrello and saeedi the ACT Supreme Court case and you can look at Wintle v Nye, Wintle v Nye is a great example. It's a case where a solicitor inserted a charging clause in their will. There was evidence that the deceased didn't know about it and the beneficiary actually was a niece of the deceased, didn't have fight in her, didn't want to go to court, so she assigned her interest in the estate to her cousin.
(36:38):
I think it was a corporal that just come back from the war and he was ready for a bit of Biff, so he ran. The argument was successful fraud, like undue influence, difficult to prove if it's going to invalidate a will, you're looking for misleading and deceptive conduct that overbears their testamentary decision-making by causing them to make a will that they wouldn't otherwise had they not been fraudulently misrepresented of certain facts. There were a range of interesting, weird and wonderful scenarios there as well. By way of example, one that didn't get over the line was where a person introduced family stepchildren as their own children and that ultimately resulted in a benefit passing to the children thinking that they were actual children and that was something that was important to the will maker, but there was no intention to deceive there. So that didn't get over the line, but that's the kind of thing that's the flavour of what you're looking for.
(37:32):
Now I'm going to shoot through family provision because I think it's fairly well covered elsewhere, but you're looking for circumstance. The language is consistent largely across jurisdictions in Australia. You're looking for someone who hasn't been adequately provided for by the will. The succession act is looking for provision in circumstances where adequate provision for the proper maintenance education and advancement in life has not been made and those words adequate and proper that are important. So adequate refers to a degree and proper adequate is more objective. Proper is more about subjective circumstances, so don't discount those that terminology have regard to what it means for your client. The two stage test continues to be referred to and used, but really it's just, it's an encouragement to sort of procedural thinking here. First, you're looking for whether the court's got jurisdiction to make the order and then you're looking at how much is adequate for that person's proper maintenance education and advancement in life.
(38:33):
The reason there's a question mark about its relevance in New South Wales is the succession act came in after Singer v Berghouse was decided, and Section 60 sets out a range of things that have to be considered and that similar is true across other jurisdictions. The caution to grow and apropo, if the two stage approach is adopted, it's erroneous to treat the first stage as being confined to an assessment of whether adequate provision has been made for the applicant's material needs. You're looking for more than that. You're looking for, you've got to look at the act still. You've got to have regard to what the act requires you to show. The idea of a two stage test is useful in forming the way you approach the court in these matters, but don't slavishly adhere to it or fail to have regard to the legislation eligible persons.
(39:24):
You're looking for a range of relationships, but don't forget your factors warranting grandchildren, member of the household, former spouse, close personal relationship, all require factors warranting, and these are factors that elevate the person to a natural object of testamentary affection. Most often demonstrated by the fact that they were a beneficiary in a will but isn't enough, but you may have to fight harder for it. It's a highly streamlined area if you are involved in one look at practise note SCQ 07 and follow that process to a T, the courts expect these things to run efficiently and costs are increasingly over concern. We have got cost capping orders coming in. There's a new protocol about cost capping, which is being adhered to. Some judges more generous than others in terms of how they cap the costs merely having need is not going to be enough.
(40:17):
Madigan v Love is an example of where needy, objectively needy plaintiffs were dismissed with costs and the judge KY specifically said, I expect you're going to get inheritances from your parents in the future. So I'm making the cost order so that the costs can be paid. When you do get that inheritance, it's pretty heavy, but good reading, if you want to look at needy plaintiffs being dismissed with costs, you're looking at post grant, no family provision, but still an issue. Maybe there's a question about what the will says, and so we need to get the court to construe the words. Maybe we need to file and pass accounts because the beneficiaries cranky. Maybe there's an application for commission, but that has to follow the filing and passing of accounts. So there's not going to be any order for commission if an executor hasn't filed and passed their accounts. You can ask but you don't necessarily get, and then you've got the option for general administration applications under part 54 of the UCPs, the Uniform Civil Procedure Rules in New South Wales, which is a useful administrative process where you just need the court to make some kind of order about the administration of an estate or a trust. So I deliberately didn't go into much details, much detail on that last part because you could go anywhere with it.
Tara (41:36):
Tim, thank you so much. It's really clear to us how much depth of knowledge you have just living in your brain, and thank you for distilling it into an overview and an hour to give us a bit of an insight into some of the issues. This is just a 101 session and I think your comment at the very beginning about we could spend an hour on each of those, sort of the subtopics within the subtopics. It is very detailed, so thank you so much. The feedback coming through is really excellent. I have a feeling people will be interested in getting some of those citations. Are you willing to share your slides? If you could share them with me, I can then put them in the group. No pressure, of course, but I think you've done an incredible job at summarising a lot of the relevant cases for people who want to go off and explore further and do a little bit of homework. So I think that having those citations there will be really helpful.
Timothy (42:35):
Happy to.
Tara (42:37):
Tim, thank you so much for coming back. That was an incredible session. Thank you for covering so much in a short amount of time. I feel like I probably should have booked you for the half day, but everyone's got your details now. So you practise in the ACT and New South Wales, is that right? Or just?
Timothy (42:57):
Yeah, yeah, yeah. The thing about acting or being based in the ACT is you kind of have to practise in New South Wales, right? I've got something in the magistrates court in Queensland at the minute for whatever bloody reason. Okay.
Tara (43:07):
Yeah. Great. Well, so good to know that you are a resource in the group for people who need to refer on, especially because we do have a contingent of lawyers who don't necessarily do the litigation side of things as well. And if you are a financial planner or accountant listening and you need a good estate planning lawyer to help your clients. Well, I think Tim, you've really demonstrated your breadth of knowledge and experience there, so I'll wrap it up now. Thank you so much. Thanks everyone for tuning in and take care.
