wills & succession notes

7/23/2019 Wills & Succession notes

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DEATH

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Introduction:

Succession is that body of law relating to the devolution of property on death.

Succession may be either

1. TESTAMENTA!" that is where the deceased leaves a will or#. $NTESTATE S%&&ESS$'N" where the deceased fails dispose some or all of their property by will.

(eath gives rise to ) areas of law* Procedural i.e. egistration.

&oronialSuccession

Succession* +itigious &ontesting validity of wills.&onstruction of wills.Administration disputes.,amily Provision.

Non-+itigious (rafting wills.Administration of estates.

Fundamental Terms:

ill* A document properly e/ecuted by a person having testamentary capacity containing that persons post mortemwishes and which has not been revo0ed. ,ormerly the term referred only to the testamentary disposition of land.

Testament* 'ld term for a will relating only to chattels.

&odicil* A will that alters or adds to an e/isting will.

Testator* A person who ma0es a will. ,ormerly the term referred only to a male person and the term testatri/ was used torefer to a female person.

$ntestacy* (eath without leaving a valid will that disposes of all of the deceaseds property. A partial intestacy arises wherethere is a will but the will fails dispose of all of the deceaseds property.

Probate* A grant made by a court e/ercising a probate 2urisdiction certifying the validity of the will and authorising thee/ecutor to administer the estate" i.e. gives legal force to the will.

+etters of Administration* A grant made by a court e/ercising a probate 2urisdiction authorising the administratorto administer the estate usually of a person dying intestate.

+egal Personal epresentative* An e/ecutor or an administrator.

Testamentary Freedom v Forced Inheritance:

There are two main themes in the law of succession as to how property should be disposed of upon death. (ifferent 2urisdictionshave tended to adopt one or the other depending upon whether their historical roots lay in common law or civil law" although insome 2urisdictions there may be a blend of the two.

1. &'MM'N +A 3 dominant theme in succession law in the last #44 years is testamentary freedom. 5owever the ,amilyProvision legislation has impact here.

#. &$6$+ +A 3 many 2urisdictions have total or partial forced inheritance. These 2urisdictions are based in oman law notionsof filial duties. Note also community property" which is generally not sub2ect to succession.

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Historical Background:

Anglo-Sa/on 7&wide8 3 early form of will. All property e/cept that re9uiring oyal consent could be left by will. Noor little formalities.

14:: Norman con9uest-introduction of feudalism-wills of chattels only. +and passes to the heir-at-law.(istinction in law between succession to chattels and succession to land remains until 1;) 1?) by will" 1?) to the church" 1?) to spouse" begin to disappear. Asland cannot be devised by will" rise of the @%se 3 an early form of trust is recognised in e9uity.Ecclesiastical courts administer testaments and intestacy of chattels under what is 0nown as &anon +aw.

1) #< 5en 6$$$ c14 3 Statute of %ses" abolishes the %se. %npopular.

1)#-1): &anon or Ecclesiastical +aw is ta0en away from ome and placed under the 2urisdiction of the Bing.This law" which included the testamentary disposition of chattels" started to become a branch of Englishdomestic law.

1=4 )# 5en 6$$$ c1 3 Statute of ills" allows wills of all land held in socage tenure and #?) of land held inmilitary tenure. riting re9uired.

1::4 1# &ar c#= 3 Military tenures abolished upon the restoration so all land could be left by will.

1: rectification" s.#DA> abolishes re9uirement that a will must be signed at the foot of the page" s.;

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repealed> abolishes privileged testators" s.14 repealed> modifies witness beneficiary rule" s.1)> permitsrevocation on divorce" s.1A.

1DD: ,orfeiture Act 1DD FNSG provided that a person unlawfully 0illing another in circumstances notamounting to murder may see0 from the court a modification of the rule that prevents such personinheriting from their victim.

1DD; Status of &hildren Act 1DD: FNSG consolidates the law relating to e/ nuptial and artificially conceivedchildren.

#44: Succession Act #44: FNSG F&ommenced 1 March #44;G enacted as part of the %niform SuccessionPro2ect to reform the law relating to wills. This Act repeals the remaining first =4 sections of the ills"Probate and Administration Act 1;D;. The 1;D; Act is renamed the Probate and Administration Act1;D;.

#44; Succession Amendment F,amily ProvisionG Act #44; FNSG F&ommenced 1 March #44DG. This Actrepeals the ,amily Provision Act 1D;# and re-enacts its provisions as part of the Succession Act #44:.

#44D Succession Amendment F$ntestacyG Act #44D FNSG FAssented to D une #44D and commenced 1 March#414G. This Act repeals Part # (ivision #A of the Probate and Administration Act 1;D; FNSG andinserts a new &hapter = in to the Succession Act #44: FNSG dealing with intestate succession.

#414 elationships egister Act #414 FNSG F&ommenced on 1 uly #414G. This Act allows for persons in aregistered relationship to be regarded as spouses.

#414 Surrogacy Act #414 FNSG FAssented to 1: November #414 and commenced 1 March #411G. This Actallows the court to ma0e parenting orders where there is a surrogacy agreement.

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Death Formalities:

A person who dies in NS must have their death registered> s.):" Iirths (eaths and Marriages Act 1DD.

(1) If a person dies in the State, the death must be registeredunder this Act.(2) If a court orders the registration of a death, the death must be registeredunderthis Act.

(3) If a person dies:

(a) in an aircraft during a flight to an airport in the State, or

(b) on a ship during a voage to a port in the State,the death ma be registeredunderthis Act.

(!) If a person "ho is domiciled or ordinaril resident in the State dies outside the #ommon"ealth, or a person dies outside the

#ommon"ealth leaving propert in the State, the death ma be registeredunder this Act.

($) %o"ever, the &egistrar is not obliged to registera death under subsection (3) or (!) if the death is registeredunder acorresponding la".

(') If a child is stillborn, the childs death is not to be registeredunder this art.

(*) +his section is subect tosection 3-.

otes

1. +he po"er to order registration of death ma be e/ercised b courts of this State and also b courts of other States and the

#ommon"ealth (seesection 3*).

2. i.e. the foetal death. A stillbirth is registeredas a birth but not as a death.

A death cannot be registered without a certificate from a medical practitioner under s.)D" or a certificate from the coroner under

s.141 of the &oroners Act #44D> see s.);" Iirths (eaths and Marriages Act 1DD.

A certificate under s.)D cannot be given unless the medical practitioner has seen the deceased within : months of death> otherwisethe death must be reported to the coroner> s.)D of the &oroners Act #44D. All suspicious deaths must be reported to the coroner andare referred to as reportable deaths> s.). Section ) provides*

(1) +his section applies to an person "ho has reasonable grounds to believe that a death or suspected death of another person:

(a) is a reportable death or occurred in circumstances that "ould be e/aminable under 0ivision 2 of art 3.2, and

(b) has not been reported in accordance "ith subsection (2).

(2) A person to "hom this section applies must report the death or suspected death concerned to a police officer, a coroner or an

assistant coroner as soon as possible after becoming a"are of the grounds referred to in subsection (1).

a/imum penalt (subsection (2)): 1 penalt units.

(3) A police officer to "hom a death or suspected death is reported under this section is reuired to report the death or suspected death

to a coroner or assistant coroner as soon as possible after the report is made.

(!) An assistant coroner to "hom a death or suspected death is reported under this section is reuired to report the death or suspected

death to a coroner as soon as possible after the report is made.

($) A coroner to "hom a death or suspected death is reported under this section is reuired to inform the State #oroner of the report assoon as practicable after the report is made.

A reportable death is defined in section : as*

(1) 4or the purposes of this Act, a person5s death is a reportable deathif the death occurs in an of the follo"ing circumstances:(a) the person died a violent or unnatural death,

(b) the person died a sudden death the cause of "hich is un6no"n,

(c) the person died under suspicious or unusual circumstances,(d) the person died in circumstances "here the person had not been attended b a medical practitioner during the period of '

months immediatel before the person5s death,

(e) the person died in circumstances "here the person5s death "as not the reasonabl e/pected outcome of a health7related

procedure carried out in relation to the person,(f) the person died "hile in or temporaril absent from a declared mental health facilit "ithin the meaning of theental %ealth

Act 2*and "hile the person "as a resident at the facilit for the purpose of receiving care, treatment or assistance.

(2) A reference to a medical practitioner in subsection (1) includes a reference to a person authorised to practise as a medicalpractitioner under a la" of another State or a +erritor.

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(3) In this section:

health-related proceduremeans a medical, surgical, dental or other health7related procedure (including the administration of ananaesthetic, sedative or other drug), but does not include an procedure of a 6ind prescribed b the regulations as being an

e/cluded procedure.

Pursuant to s.#1 a coroner has 2urisdiction to hold an in9uest if the coroner deems it appropriate>

(1) A coroner has urisdiction to hold an inuest concerning the death or suspected death of a person if it appears to the coroner that:

(a) the person5s death is (or there is reasonable cause to suspect that the person5s death is) a reportable death, or

(b) a medical practitioner has not given (or there is reasonable cause to suspect that a medical practitioner has not given) acertificate as to the cause of death.

(2) +he reference to a medical practitioner in subsection (1) (b) includes, if it appears to the coroner that the death or suspected death

occurred at a place outside the State, a reference to a person entitled under the la" in force in that place to issue a certificate as tothe cause of death.

This 2urisdiction does not depend on whether the death has in fact been reported> s.#4. 5owever pursuant to s.#< of the &oronersAct there are circumstances where an in9uest must be held.

(1) An inuest concerning the death or suspected death of a person is reuired to be held in an of the follo"ing circumstances:

(a) if it appears to the coroner concerned that the person died or might have died as a result of homicide (not including suicide),(b) if the urisdiction to hold the inuest arises under section 23,

(c) if it appears to the coroner concerned that:(i) it has not been sufficientl disclosed "hether the person has died, or

(ii) the person5s identit and the date and place of the person5s death have not been sufficientl disclosed,(c) if it appears to the coroner concerned that the manner and cause of the person5s death have not been sufficientl disclosed

(unless the case is one in "hich an inuest has been suspended or continued under section *-).

(2) An inuest is not reuired to be held under this section if it appears to the coroner concerned that an inuest or other officialinuir concerning the death or suspected death has been held, or is to be held, outside the State.

A body cannot be buried or cremated e/cept in accordance with s.144 of the &oroners Act which provides*

(1) A person must not bur or cremate human remains, or place human remains in a mausoleum or other permanent resting place, or

cause the remains to be so buried, cremated or placed, unless:

(a) the person has been given, or has in his or her possession, an appropriate disposal authorisation for the disposal of theremains, or(b) the disposal of the remains is other"ise authorised b the regulations.

a/imum penalt: $ penalt units.

(2) A person must not deliver or hand over human remains for anatomical or medical research, or remove human remains (other thancremated remains) from the State, or cause such remains to be so delivered, handed over or removed, unless:

(a) an appropriate disposal authorisation for the disposal of the remains has been issued, or

(b) the disposal of the remains is other"ise authorised b the regulations.

a/imum penalt: $ penalt units.

(3) An appropriate disposal authorisationis:

(a) in relation to the disposal of the remains of a deceased person (other than a stillborn child)8an of the follo"ing documents:

(i) a notice given b a medical practitioner for the purpose of section 39 of theirths, 0eaths and arriages &egistrationAct 199$ relating to the deceased person,

(ii) an order made b a coroner under section 11 authorising the disposal of the remains,

(iii) a certificate issued under section $1 of theirths, 0eaths and arriages &egistration Act 199$that relates to thedeceased person, or

(b) in relation to the disposal of the remains of a stillborn child8an of the follo"ing documents:

(i) a certificate or notice given b a medical practitioner for the purpose of section 12 (3) of theirths, 0eaths and

arriages &egistration Act 199$relating to the stillborn child,(ii) an order made b a coroner under section 11 authorising the disposal of the remains.

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Thus in order to bury or cremate the deceased the person arranging the burial must either possess a certificate issued by a medicalpractitioner under s )D of the Iirths" (eaths and Marriages egistration Act or an order of a corner under s.141 of the &oroners Actor a certificate under s 1 of the Iirths" (eaths and Marriages egistration Act.

Death Presumptions:

0efinition: (EAT5 is defined for the purposes of the law of New South ales in s.)) of the 5uman Tissue Act 1D;) as*

33. 4or the purposes of the la" of e" South ;ales, a person has died "hen there has occurred:

(a) irreversible cessation of all function of the persons brain< or

FbG irreversible cessation of circulation of blood in the persons bod.

NI* this definition applies only where there is a body. $t applies for the purposes of all law in New South ales and not 2ust the5uman Tissue Act. &onsider the position of a brain dead person on life supportJ

(eath must at common law be proved as a 9uestion of fact either directly where there is a body or indirectly as a matter ofimplication from 0nown circumstantial evidence.

A person wishing to prove an entitlement founded upon a person having survived another person must" at common law" prove thatfact> ing v AngraveF1;:4G ; 5+ &as 1;)> 11 E )Db?efore alegatee is entitled to share in the estate of a testator he must sho" that he has survived the testator, and so must those "ho claimthrough the legatee@.

AISEN&E*here there is no body death can be presumed. Section =4A of the Probate and Administration Act 1;D; allows probate to begranted upon a presumption of death.

here a person is not heard from for a period of < years by those persons who would be e/pected to have had communication withthat person then a court may presume that person dead> A/on v A/on F1D) e* Matthews K1;D;L P 1< such as the case of an elderly person whodisappears but these are often cases where death may be inferred from surrounding circumstances rather than presumed.

$t does not matter that the person is a fugitive from 2ustice or cuts themselves off from relatives" if the < years has e/pired and noone has heard of the whereabouts of the person then the court can apply the presumption> Hrieve v egistrar Heneral FS&NS" )April 1DD


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Order of Death and urvivorship

At common law the order of death had to be proved by evidence. (ifficulties arose in cases of @simultaneous deaths e.g. planecrash etc.

Section )" &onveyancing Act 1D1D * !ounger deemed to survive the elder.

In all cases "here t"o or more persons have died under circumstances rendering it uncertain "hich of them survived, the

deaths shall for all purposes affecting the title to an propert be presumed to have ta6en place in order of seniorit (position),

and the ounger be deemed to have survived the elder.

5EN $T APP+$ES*This section applies if the order of death cannot be established by evidence. $t must be uncertain on the evidence as to in whichorder # or more persons died> e Plaister> Perpetual Trustee &o v &rawshawF1D)=G )= S FNSG = e (ollingK1D:L 6+ ). See Heddes p.)1=.

#. Section ) turns on =under circumstances rendering it uncertain "hich of them survived.B Thus the circumstances of death

must be 0nown but these circumstances must render it uncertain which order the persons died. hereas if the < yearpresumption applied then the circumstances of death are un0nown. Therefore s.) and the < year rule cannot be used togetherto determine if a legatee has survived the testator.

). There is no re9uirement in section ) that the circumstances of each death must be the same. All that is re9uired is that thecircumstances of each death be 0nown and that these circumstances render it uncertain which order the persons died> 5ic0manv PeaceyK1D=L A& )4= at )1=-)1.

S%6$6'S5$P

The Succession Act #44: in section ) ma0es special provision with respect to beneficiaries of a will who die within )4 days of thedeath of the testator. $n such a case the beneficiary" unless a contrary intention is shown in the will" is presumed to have diedimmediately before the testator. Section ) applies only where the deceased dies leaving a will made after 1 March #44;.

,urther section 14< of the Succession Act re9uires a person to survive the deceased by 30 daysin order to be able to inherit wherethe deceased dies intestate. This section applies only where the deceased dies intestate on or after 1 March #414.

The Act does not alter the operation of section ) of the &onveyancing Act 1D1D but in some situations it removes in a practicalsense the conse9uences of determining the precise order of death.

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Death Disposal of the Body:

O!E"#H$%&A corpse cannot own property> 5aynes &aseF1:1=G 1# &o ep 11)>


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O"+A! DO!AT$O!&

EHENEAT$6E T$SS%E Fissue that" after in2ury or removal" is replaced in the body of a living person by natural processes of

growth or repair.s=G may only be removed from an adult person with that persons consent and then only for the purposes oftransplantation or for other therapeutic" medical or scientific purposes> section < of the 5uman Tissue Act 1D;).

N'N-EHENEAT$6E T$SS%E may only be removed from an adult person with that persons consent and then only for the

purposes of transplantation> section ; of the 5uman Tissue Act 1D;).

Tissue and includes blood" ova and semen" and foetal tissue> section = F#AG of the 5uman Tissue Act 1D;).

&'NSENT* A person over 1: years may consent in writing to the removal of blood from their body for a therapeutic purpose or

for the transfusion in to a person other than themselves> section 1D of the 5uman Tissue Act 1D;).

Nothing in the 5uman Tissue Act authorises the removal of semen for the purposes of the artificial insemination of a woman

from a comatose person where that person has not previously consented or authorised another to consent on his behalf> MA vestern Sydney Area 5ealth ServiceF#444G =D NS+ #)1 at #==. Iut where a person is deceased then this may be possibleprovided the re9uirements of section #)F)G of the 5uman Tissue Act as amended by 5uman Tissue and Anatomy +egislationAmendment Act #44) are satisfied as set out below.

The court cannot use theparens patriae2urisdiction that it has over disabled persons to authorise the removal of semen for the

purposes of the artificial insemination of a woman even of the spouse of the disabled person as this will not preserve the life of"safeguard" secure or promote" or prevent the duration in the physical or mental health of the disabled person> MA v esternSydney Area 5ealth ServiceF#444G =D NS+ #)1 at #=#.

T$SS%E &AN IE EM'6E(* here the body of the deceased person is at hospital and that person has during their lifetime

consented to the removal of tissue from their body after death for the purposes of transplantation to the body of a living personor for other therapeutic medical or scientific purposes and the consent has not been revo0ed then the tissue may be removed>section #) F1G. here there is no consent the ne/t of 0in may consent if the deceased has not during their lifetime e/pressedob2ection> section #) F)G.

where the body is not at a hospital section #= of the 5uman Tissue Act 1D;).

F1G $f the body of a deceased person Fother than a deceased childG is at a place other than a hospital"the removal oftissuefromthe body of the deceased person for the purpose of its transplantation to the body of a living person" or its use for othertherapeutic purposes or for medical purposes or scientific purposes" is authorised if*

FaG the deceased person had" during the persons lifetime" given his or her consent in writing to the removal oftissuefrom thepersons body for that purpose" and

FbG the consent had not been revo0ed

Transplantation includes the artificial insemination of semen> section = F)G and artificial insemination refers to fertiliation

outside of the womb for the purpose of implanting in the woman or another woman> section = F1G. This includes $6, treatmentsand surrogacy.

Section #) of the 5uman Tissue Act allows a designated officer of a hospital to permit the removal of tissue from the body of a

deceased person at the hospital if satisfied that the deceased consented in writing during his or her lifetime> s.#)F1G. Evenwhere there is no evidence of the written consent of the deceased if the designated officer is satisfied from en9uiries that thedeceased had not in their lifetime e/pressed ob2ection and the ne/t of 0in consent in writing then the tissue may be removed>s.#)F)G.

EM'6A+ ', T$SS%E pursuant s.#) is only for the purpose of transplantation to the body of a living person or for some

therapeutic" medical or scientific purpose. emoval of semen for possible later use may be regarded as a medical purpose>Edwards> e Estate of EdwardsF#411G ;1 NS+ 1D; at K)#L. Also ! v Austin 5ealth F#44G 1) 6 ):) at K)DL.

The absolute proposition that there can be no property in a corpse has been confined in recent times to corpses awaiting burial.

$t has been accepted that where any form of dissection or preservation has been applied to a tissue sample then it is capable ofbeing regarded as property> AI v +eeds Teaching 5ospital N5S TrustK#44=L E5& :==. (oodeward v Spence has not beenfollowed by the English &ourt of Appeal in !earwood v North Iristol N5S Trust K#414L OI 1 at least in respect to semen thesub2ect of an action in negligence.

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Edwards> e Estate of EdwardsF#411G ;1 NS+ 1D; at K;:L-KD1L A 5ulme held that the ETA&T$'N ', SEMEN I!

ME($&A+ PA&T$T$'NES AT T5E EO%EST ', T5E $(' constituted the performance of wor0 or s0ill upon a partof the body such that it was capable of forming property that enabled the widow to assert a right to possession. 5owever inOueensland a different view has prevailed that there is nothing in the common law that would authorise a court ma0ing an orderof this 0ind* $n the matter of HrayK#441L # Od ) and Ia0er v State of OueenslandK#44)L OS& #> c.f. e (enman K#44=L #Od D.

Edwards> e Estate of EdwardsF#411

Possession of her late husbands sperm $t gets granted for her to ta0e possession but she cant use it for reproduction reasons and cant ta0e outside of NS

AI v +eeds Teaching 5ospital N5S Trust K#44=L

claims for psychiatric in2ury brought by parents of children who had died. Iody parts had been ta0en during post mortems and

not returned.

The plaintiffs relied upon their duty to bury as conferring a right to possess the body" including all its parts" for the purpose of

burial. The defendants claimed that there was at least a right of the hospitals and pathologists to possess organs on which wor0and s0ill had been carried out.

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,"$A. / EETO"&FwillG

The e/ecutor has the right to the custody and possession of the body for the purpose of burial> illiams v illiams F1;;#G #4 &h (:D at :: per Bay +. Thus an action will lie at the suit of the e/ecutor to recover the body but only for this purpose. See also(obson v North Tyneside 5ealth AuthorityK1DD see eg


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,"$A. / !O EETO"&Fno willG

The Ne/t of Bin has the right to bury and if none the person whose house the deceased dies in. A person who e/pends money on theburial of another has a restitutionary right to recover that e/penditure from the estate of the deceased> Smith v Tamworth &ity&ouncil F1DD arner v +evitt FS&NS" #) August1DD=" Irownie " unreportedG.

A (E ,A&T' SP'%SE has a higher right to burial than other relatives of the deceased> Iurnes v ichards FS&NS" : 'ctober1DD)" &ohen " unreportedG and Irown v Tulloch FS&NS" 1; 'ctober 1DD#" addell & in E9" unreportedG.

NI* see !oung s 1 points in Smith v Tamworth &ity &ouncilF1DD ones v (oddF1DDDG at K4-1L. 5owever the common or usual approach will only be departed from in an e/tremelyrare case> Iurrows v &ramleyK#44#L AS& =< at K# +aing v +aingK#41=L OS& 1D=.

:. $f two or more persons have an e9ual right to bury then the practicalities of an urgent burial prevail FwinG. This will particularlybe the case where the deceased is an infant child and there is no prospect of administration being applied for> AI v &( K#44 Michael Rannetides v Tracey Spence K#41)L NSS& #4)#.14. A right of burial is not an easement but an irrevocable licence over the body in the ground.11. A cemetery authority can ma0e reasonable by-laws for the maintenance and appearance of a headstone> &rown +ands FHeneral

eservesG Iy +aw #44: FNSG" clause #. NI* This clause will be repealed upon the commencement of the &emeteries and&rematoria Act #41) and replaced by regulations to be made under s.14:.

1#. Sub2ect to the by-laws the holder of the right to bury has power to decide the appearance and headstone of the grave. The rightto bury and the rights attached to it relating to headstones etc. are not lost merely because the holder of the right to bury hasauthorised another to arrange the funeral> Escott v Iri0ha K#444L NSS& =;. $n this case the court declared a person to be theholder of the right to bury thus allowing them to alter the wording on the headstone.

1). The reasonable cost of a reasonable headstone is recoverable from the deceaseds estate> Michael Rannetides v TraceySpence K#41)L NSS& #4)#.

1=. The holder of the right to bury cannot e/clude friends and relatives from e/pressing their affection for the deceased in anappropriate manner such as placing flowers on the grave etc. NI a cemetery authority has the power to regulate this aspect interms of vases etc. that can be placed near graves> &rown +ands FHeneral eservesG Iy +aw #44: FNSG clause #:. NI* Thisclause will be repealed upon the commencement of the &emeteries and &rematoria Act #41) and replaced by regulations to be

made under s.14:.1. After the death of the e/ecutor or administrator" the right to control the grave passes to the legal personal representative of the

deceased and not the legal personal representative of the holder of the right to bury.

anted grave rights transferred to them. Made no mention of natural parents who aid for burial of (avid. (id natural parents

have rightsJ

Ieard v Iaul0ham 5ills Shire &ouncil F1D;:G < NS+ #


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&alma v Sesar*

Martin in the Supreme &ourt of the ( Northern Territory had to consider a dispute between the plaintiff mother and the

defendant father of an adult son. The deceased died in a (arwin hospital. The mother was living in Alice Springs and the fatherin Port 5edland" estern Australia. $t could be seen that each of the claimants had e9ual rights as ne/t of-0in. Martin said Fat=#G that* The body of the deceased was in (arwin and proper arrangements had been made for burial here. There was no goodreason in law why that should not be done and no good reason in law why the removal of the body from the Territory and burialin estern Australia was to be preferred.8

Irown v Tulloc0 F1DD#G < IP 1141.

That was a dispute between a de facto wife and a brother of the deceased. The coroner indicated that he intended to release the

body to the de facto wife. She intended to bury the body at +ittle 5artley. The brother wished to inter the body at +ithgow withthe rest of his family. The site at +ithgow had actually been purchased by the deceased for his own interment. The de facto wifesaid that before his death the deceased told her he wanted to be buried at +ittle 5artley.

5E+(* The 2udge found that as the de facto wife was li0ely to be the sole beneficiary and must be granted administration" she

had the right to choose. The mere fact that the plaintiff might become administrator appears to be irrelevant. 5owever" as the defacto wife she would be given priority over the deceaseds brother

Iurnes v ichards F1DD)G < IP 114=

Plaintiffs were the daughter and sister of the deceased" the first defendant was the person who claimed to have been the

deceaseds de facto husband for the last seventeen years. 5is claim was disputed. The plaintiffs wanted to bury the body inHriffith in the family grave" the defendant wished to have the funeral in a village near &ondobolin. The hospital intended tohand the body to the Aboriginal ,uneral Service on behalf of the plaintiffs" but" by mista0e" handed it to a funeral directorretained by the defendant.

arner v +evitt F1DD=G < IP 1114. Kright to burryL

The decision does seem to adopt two propositions which are 9uestionable*

FaG that the right of possession of a dead ( body runs with the duty to dispose of it> andFbG that if an e/ecutor has to pay for the burial" he or she has the right to choose the burial place. Nonetheless" the decision is in

accordance with the principles $ have abstracted earlier.

Adopt'e pare(ts hae the r')ht !OT (atural pare(ts Fdoesnt matter that they paidG. Adopt'o( 's d'ere(t to oster" it

cancels the right of naural parents legal rights in relation to law.

$t can be seen from the cases that where a person has named an e/ecutor" that named e/ecutor has the primary privilege of

burying the deceaseds body. here there is no e/ecutor named" and the deceased leaves an estate" the perso( e(t'tled toad'('strat'o( 's usually the perso( ho 's respo(s'ble or the bur'al o the body a(d or the paye(t o the u(eral

epe(ses. That person may recoup such e/penses out of the estate. As the burial usually ta0es place before there is a grant ofadministration" one loo0s to see the person who is most li0ely to get the grant of administration. As the grant follows interest" $n

the Estate of Slattery F1D4DG D S FNSG


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"$+HT# $TH "E#%ET TO +"AE#

A right to bury must be distinguished from the right to bury a person in a particular plot by reason of the ac9uisition of that rightfrom the trustee controlling a cemetery and is capable of being regarded as a species of property> utherford v allace K1DDDLNS&A #DD.

$f a person buys a plots for their burial it doesnt mean that the e/ecutor needs to bury them there

5owever this species of property even if granted in perpetuity can in certain circumstances be reac9uired. Thus an unused burialplot can be reac9uired by a cemetery authority after 4 years> &rown +ands FHeneral eservesG Iy +aw #44: FNSG clauses )= and). NI* These clauses will be repealed upon the commencement of the &emeteries and &rematoria Act #41) and replaced by Part=.

The &emeteries and &rematoria Act #41) received oyal Assent on #< November #41). The Act commenced on #= 'ctober #41=e/cept as to Part = which is not yet in force but will upon commencement ma0e significant changes to rights with respect togravesites.

The &emeteries and &rematoria Act has two main purposes> F1G to regulate the internment industry Fcemetery operators" funeraldirectors and funeral fundsG and F#G to regulate and control rights with respect to graves.

Section =< creates two types of e/clusive rights to internment in a burial site*1. a perpetual interment right#. a renewable interment right

A renewable internment right is defined s.= as a right that may be granted in respect of cremated remains for an initial term note/ceeding DD years and in respect of human remains that have not been cremated for an initial term not e/ceeding # years from thedate the right is granted. Note that the date the right is granted is not the same date as the date of burial.

A cemetery operator need not grant a right for the ma/imum period of DD years or # years respectively and may grant the initialterm for a much shorter period. The right may be renewed pursuant to s.=F)G for periods not e/ceeding years upon the paymentof the prescribed fee provided the initial period and any period of renewal does not e/ceed DD years.

A cemetery operator may reuse Fre-grantG the site and remove any memorial Fsub2ect to heritage re9uirementsG after # years from thee/piry of a renewable internment right> s.. 5owever the site may not be reused if human remains have been buried in the site fornot less than # years> s.F:G.

No internment right is re9uired for the scattering of cremated remains> s.:#.

$nternment rights may be left by will> s.=D or may pass on intestacy> s.4. The right may be held by two persons 2ointly and willpass to the survivor on the death of one of those persons> s.1. The right may be transferred from one person to another but acemetery operator may refuse transfer if it appears that transfer would tend to create a monopoly or encourage dealing in intermentrights> s.:4.

A perpetual internment right may be revo0ed by the cemetery operator if it is not e/ercised within 4 years after it is granted> s.#.

Allied to this area is the 9uestion of who is liable for funeral e/penses and what is the status of gifts in wills for the erection and

maintenance of graves.

The e/ecutor or the person entitled to administration who orders the funeral of the deceased is entitled to be reimbursed the

reasonable costs of the funeral. hat is reasonable is determined according to the degree and 9uality" ran0 andcircumstances of the deceased> see Mullic0 v Mullic0 F1;#DG 1 Bnapp #=> 1# E )1# where a court will pay regard to culturalfactors.

$f a third person ordered the funeral then that person is entitled to be reimbursed from the e/ecutor or administrator providing

that person is holding assets of the deceased.

A person who orders and e/travagant funeral is personally liable to the underta0er and can only recover what are regarded as

reasonable costs of the funeral.

Page 15of 34


16/34


17/34

$!TE#TATE#E##$O!

Page 17of 34


18/34

%pplica$le &a#: tatute

Post 41?4)?#414 - Succession Act #44: FNSG

Probate and Administration Act 1;D; ss :1A to s :1, include persons dying on or after 41?41?1D


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urvivorship: 30 DA ".E

There can be no distribution to person unless they survive the intestate> s14;F1G Succession Act #44:. s14< Succession Act #44: Survive is defined as*

s.14 or>

s14 Fe/cludes froen embryoG

Section 14< Succession Act #44: removes problems associated with 7simultaneous death8 situations that are sometimes

associated with accidents or disasters.

here a ne/t of 0in dies close in time to the intestate it is first necessary to determine the order of death either by fact or

under the statutory rule in s.) of the &onveyancing Act1D1Dand second if the ne/t of 0in is found to have lived longer than the intestate to then determine if they have lived for at leastthe )4 day period.

S14


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'ntitlements: pouse

HO $# A #%O#E9 P%P'SES ,' EAM* +iving together de facto and if they arent then theyre not a de facto.

s14= Succession Act* SP'%SE - of the for the purpose of the intestacy rules a spouse is defined as*

A person married to the intestate or>

A party to a domestic partnership with the intestate immediately before death

s14 A domestic partnership* is a relationship between the intestate and another person that is a registered relationship" or

interstate registered relationship" within the meaning of the elationships egister Act #414 " or a de facto relationship that*FaG has been in e/istence for a continuous period of # years" orFbG has resulted in the birth of a child.

,or the relationship to be in e/istence for a continuous period of at least # years" the period relates to a continuous period of

# years or more that occurs immediately prior to the death of the intestate> Sadi9 v NS Trustee C Huardian K#41LNSS&


21/34

As to the limitations of the definition of de facto relationship in section #1&" 5allen in Sadi9 v NS Trustee C HuardianK#41LNSS& FcG s11) 5alf of the remainder of the estate Fif anyG>.Fsee belowG

EH* if the deceased was unfaithful and had a fling with another person who has a child and who is born and survives )4

days" then the property will be divided between the spouses children and the flings child?children.

hat ends a spousal relationship is divorce Fnot separatedG" so your former spouse who has children and his de-facto spouse

has children" this will arguably be divided between all of the children.

Ne/t step is to wor0 out who will get what Fma0e note of blended families for e/amG

FaG s141 PES'NA+ E,,E&TS Personal property thats tangible?personal property of intestate e/cept

Property used e/clusively for business. E.g. plumbers car

&oins and notes unless part of a private collection> Property held as security>

Iullion etc. held for investment that is not also held for household or personal use or decoration.

+and.

Shares

Superannuation

Ian0 account

E.g.$f they die leaving money somewhere e.g. bac0 of pillow they dont belong to the spouse so they go into the estate as a

whole. This is unless its for a hobby such as coin collection

Page 21of 34


22/34

E.g.Artwor0 collection and it is held in a vault it wont be personal effects but if it is instead hanging in the house it wil be

personal as its hanging up for en2oyment and household

hether an item was of a personal nature depended on the purpose for which it was owned. Anti9ue cloc0s were probably part

of household furniture> e &rispins ill Trusts K1D e* eynolds ill TrustsK1D::L 1+ 1D.

Much depended on whether an ob2ective or sub2ective FpersonalG view was ta0en.

FbG s14: STAT%T'! +EHA&!*

S14:. &P$ ad2usted legacy V interest FIA cash rate Fas at the previous 1 anuaryG V #W" if not paid within 1 year of deathG>

A / & U ( XX Fe.g. )4.444 / & 14


23/34

here death occurred before 1 March #414 then under the previous law if the value of the estate Fless household chattelsG is

less than the prescribed amount then the spouse ta0es the whole estate> s:)IF)G.

The prescribed amount is Y#44"444 from 1 September #44). See s:1AF#G Probate and Administration Act 1;D; .

here the deceased died before 1 September #44) but after 1 September 1DD) the amount was Y14"444.

$f the value of the estate Fless household chattelsG is greater than the prescribed amount then the spouse receives*

1. 5ousehold &hattels.

#. Prescribed Amount.). Z of the estate Fless household chattels and prescribed amountG.

The residue FremainderG of the estate is held in statutory trust for the issue of the deceased. Note the distinction in s:1I

between @trust and @statutory trust> see s.:1&.

H$.D"E! A!D !O #%O#E&

The children ta0e the whole estate> s1# s.1# s141.

The 7presumptive share8 is distributed by way of a per stirpes distribution. This means that the share of a deceased child is

divided e9ually between those of the childs children who survive the intestate Ftheir grandparentG. This process continues untilthe issue of the intestate are e/hausted> s.1# s.1#;F#G.

Iut if only one parent surviving then wholly to that parent> s.1#;F1G. .

!O $##E: !O #%O#E A!D !O %A"E!T#& ,rother;#'sters $n this situation Irothers and Sisters Fno distinction is made between whole and half-bloodG ta0e in e9ual shares if they survive

the intestate> s.1#DF1G.

%nder the previous law brothers and sisters of the full blood too0 precedence over brothers and sisters of the half blood.

$f a brother or sister does not survive the intestate but leaves children For if applicable more remoterG issue who do then a

presumptive share passes to the children of the deceased brother or sister and so on until the share is e/hausted> s.1#DF)G.

!O $##E: !O #%O#E: !O %A"E!T# A!D !O ,"OTHE"# O" #$#TE"# O" $##E O< A!

DEEA#ED ,"OTHE" O" #$#TE"& +ra(dpare(ts Hrandparents in e9ual shares if more than one surviving otherwise the surviving grandparent> s.1)4. .

!O $##E: !O #%O#E: !O %A"E!T#: !O ,"OTHE"# O" #$#TE"# O" $##E O< A!

DEEA#ED ,"OTHE" O" #$#TE" A!D !O +"A!D%A"E!T#& Au(ts;u(cles Aunts and %ncles Fno distinction is made between whole and half-bloodG in e9ual shares if more than one surviving> s.1)1.

$f an Aunt or %ncle fails to survive the intestate leaving a child who survives the intestate that child Fi.e. a first cousinG may ta0e

their deceased parents presumptive share. This does not apply to more remote issue of the Aunt or %ncle> s.1)1F)G.

Page 23of 34


24/34

%nder the previous law an %ncle or Aunt of the full blood too0 precedence over an %ncle or Aunt of the half blood. ,urther the

child of an %ncle or Aunt" i.e. a cousin of the intestate could not ta0e under the previous law.

,irstt cousins can but second cousins Fcousins 0idG cannot ta0e your intestacy

!OTE* $, A++ ', T5E AI'6E AE (E&EASE( T5E &'N TABES T5E 5'+E ', T5EESTATES 1):I'NA 6A&ANT$A Floo0 belowG

Bona (acantia:

(efinition* Means vacant goods and is the name given to ownerless property" which by law passes to the &rown.

$n default of all of the above the &rown Freferred to as the StateG ta0es the whole of the estate" s.1):.

This appears to be a statutory right to ta0e the property and any rights attached to it rather than a bona vacantia> Irown v New

South ales Trustee and Huardian K#41#L NS&A =)1 at K11#L.

ona vacantiareferred to the property vesting in the &rown because it became 7ownerless8> (y0e v alfordF1;=:G Moore

P& =)=> 1) E s.1)


25/34

[

)ultiple pouses:

%nder the previous law relating to intestate succession where a deceased left a lawful spouse and a de facto spouse then a

determination had to be made as to who was to be entitled to the spouses share.

The ills Probate and Administration F(e ,acto elationshipsG Amendment Act1D;= inserted subsections )A and )I into

s.:1I. These applied to the estates of persons dying after 1 uly 1D; and before 1 March #414.

SP'%SE AN( (E ,A&T' SP'%SE F)AG1. $f de facto relationship e/isted for # continuous years prior to death> and#. $ntestate did not live with legal spouse during any part of that period> then). (e facto spouse ta0es share legal spouse would have ta0en.

(E ,A&T' SP'%SE AN( $SS%E I%T N' +EHA+ SP'%SE F)IG1. $f de facto relationship e/isted for # continuous years prior to death then the de facto spouse ta0es spouses share.#. $f de facto relationship e/isted for less than # years prior to death" then>

here the only children are children of the relationship then the de facto spouse ta0es spouses share.

here the only issue are grandchildren or remoter issue then the de facto spouse ta0es spouses share.

here the children are not children of the de facto relationship then the de facto spouse cannot ta0e.

$n all other cases a reference to a spouse included a reference to a de facto spouse> s.)#HF#G.

,rom 1 March #414 where the deceased dies leaving more than one spouse - Part =.# (ivision ) of the Succession Act applies

where the intestate leaves a person with whom they are married and a person with whom they are in a de facto relationship.

here there are no issue or the only issue are issue of a spouse then the whole estate is to be shared between the spouses as set

out in ss.1## and 1#) succession act.

here there are issue who are not issue of a surviving spouse then the personal effects" statutory legacy and half remainder

must be shared as set out in s.1#=.

The share of each spouse is to be determined as follows*

The spouses agree and enter a distribution agreement> or

A spouse or the legal personal representative applies to the &ourt for a distribution order> or

$f ) months elapse after service of a notice by the legal personal representative the spouses have done nothing then there is

an e9ual sharing> s.1#.

($ST$I%T$'N '(ES* s1#:succession act

Page 25of 34


26/34

The &ourt may order that the property be distributed between the spouses in any way it considers 2ust and e9uitable>

s.1#:F)G>

The &ourt may allocate the whole of the property to one of the spouses to the e/clusion of the other or others> s.1#:F=G>

A distribution order may include conditions> s.1#:FG.

5ow should the distribution be madeJ

&ontributionsJ

+ength and nature of the relationshipJ

(ependantsJ

Needs of either spouseJ

idowers be treated differently from idowsJ ust and e9uitable between spouses 3 The claims of others upon the intestates bountyJ

'b2ective or sub2ective testJ

THE #%O#E=# "$+HT TO A>$"E %"O%E"T& #uccess'o( Act The spouse is given the right to ac9uire any property from the estate in lieu of receiving in whole or part a cash distribution.

This right can be contrasted to that under previous law where the spouse only had a right to elect to receive the deceasedinterested in a home shared with the spouse. This was not a right to receive the home in specie only the value of that share.

The right applies where intestate leaves one spouse only> s.11=.

$s an election to ac9uire property in specie> s.11.

e9uires court approval if*

Property forms part of a larger aggregate such as a farmhouse or an anti9ue that is part of a collection and>

Election would diminish value of remainder or ma0e administration substantially more difficult such as ma0ing a

sale of the remainder more difficult.

No election if ac9uisition would re9uire compliance with specified mandatory provisions relating to the subdivision of land

or strata lots unless the spouse pays the costs of compliance. No election where the property has been ac9uired by a bona fide purchaser for value.

Personal epresentative must give notice to spouse of right to elect within 1 month of grant> s.11:F1G. Notice must state*

5ow the election is to made>

Election may be sub2ect to court approval and in what circumstances>

Election must be made within ) months of notice.

Notice not re9uire if spouse is the For aG personal representative> s.11:F#G.

The election must be made within ) months from date of notice> s.11 s.11 s.11 s.11;F1G.

Notice must be given to*

Personal epresentativeFsG and>

All persons entitled to share in the estate.

The election may be revo0ed by giving notice in writing any time before the property is transferred to the spouse.

The spouse ac9uires the property by payment of the e/ercise price*

'ut of money they are entitled to from the estate" then if insufficient>

,rom their own funds before or on the date of transfer> s.1#4.

Page 26of 34


27/34

The e/ercise price mar0et value of the property> s.11DF1G.

$f the spouse agrees to ta0e over a mortgage then mar0et value is reduced by the mortgage liability but the spouse ta0es

sub2ect to the mortgage.

Property must be valued by a registered valuer if there is an election or if spouse re9uests so as to consider ma0ing an

election.

6aluation report must be given to the spouse and all persons entitled to share in the estate.

6aluation may be waived with the consent of all persons entitled to share in the estate.

Personal epresentative must not dispose of property unless*

They are the spouse entitled to elect>

No election occurs and time has passed>

&ourt refuses to authorise the election>

Spouse advises in writing of no election>

Property is re9uired to pay debts etc.>

Perishable property> s.1#1.

A transaction contrary to s.1#1 is valid.

here the intestate died before 1 March #414 then s.:1( of the Probate and Administration Act 1;D; allowed the spouse to

elect to retain the shared home. Iut to do so the*aG $ntestate must die leaving a spouse and issue.bG 6alue of estate Fe/cluding household chattelsG must e/ceed the prescribed amount.cG $ntestate at death must have held an interest in a dwelling house in NS.dG (welling house must be occupied at time of death by the intestate and spouse as their only or principal residence.

The right to elect was sub2ect to the ,ourth Schedule" which was deemed to form part of s.:1(.

The election*aG Must be e/ercised in writing> cl #F1G.bG &annot be revo0ed e/cept with the consent of the Supreme &ourt> cl #F#G.cG Spouse can re9uire valuation of the home> cl #F)G. See s.:1E.

dG Must be e/ercised within 1# months of +etters of Administration> cl ).eG (ebts etc. have priority> cl ).fG No right of spouse to the home against a bona fide purchaser for value from the Administrator> cl


28/34

$f the value is less than the spouses share then the share is deemed satisfied only to the e/tent of that value> s.:1IF1)GFbG.

The share that the spouse would have received without ma0ing an election is for the purposes of s.:1IF1)G the prescribed amountplus the half share referred to in s.:1IF)GFcG. $n other words the share the spouse would get without ma0ing an election less thevalue of the household chattels.

Issue:

(efinition* $ssue means natural offspring of the deceased i.e. children" grandchildren and their issue.

E N%PT$A+ At common law a reference to issue was to legitimate issue> e* Pritchard F1D=4G =4 S FNSG ==). An e/ nuptial child was

filius nullius.

Section of the Status of &hildren Act re9uires the relationship between a parent and his?her child to be determined irrespective

of whether the parents are married. This includes where the relationship to another person is to be determined through thechilds parents.

F1G ,or the purposes of any law of the State by or under which the relationship between any person and the persons father andmother For either of themG arises" that relationship and any other relationship Fwhether of consanguinity or affinityG between theperson and another person is to be determined regardless of whether the persons parents are or have been marriedto each other.

F#G This section is sub2ect to sections :and Horey v HriffinK1D


29/34

FaG the words legitimate or lawful when used with reference to the child or children of a person or persons related toanother person in some other way"

FbG the words married" husband or wife when used with reference to the parent or parents of a person.

F=G ithout limiting any other provision of this Act"any rule of law that a disposition in favour of an e/nuptial child not conceivedor born when the disposition ta0es effect is void as being contrary to public policy is abolished in respect of any disposition to whichthis section applies.

(ispositions before this date are determined by common law> s. s.D1.

A('PT$'N Section 14D of the Succession Act #44: ma0es a child for the purposes of the intestacy rules a child of the adopted parents and

provides that biological relationships inconsistent with the adoption order are to be disregarded.

Iy s.D of the Adoption Act#444 an adoption order*

Ma0es the child the child of the adoptive parents as if the child had been born to them in lawful wedloc0. The child ceases to be the child of its natural parents.

Section D provides* F1-) you cant challenge and arent irrevocable" includes $6,G(1) An adoption order made by the &ourt gives sole parental responsibility for a child to the person or persons named in the

order Fthe adopt'e pare(t or adopt'e pare(tsG.F#G ,or the purposes of the law of New South ales" if an adoption order is made*

FaG the adopted child has the same rights in relation to the adoptive parent" or adoptive parents" as a child born to theadoptive parent or adoptive parents"

FbG the adoptive parent or adoptive parents have the same parental responsibility as the parent or parents of a child born tothe adoptive parent or adoptive parents"

FcG the adopted child is regarded in law as the child of the adoptive parent or adoptive parents and the adoptive parent oradoptive parents are regarded in law as the parents of the adopted child"

FdG the adopted child ceases to be regarded in law as the child of the birth parents and the birth parents cease to be regardedin law as the parents of the adopted child.

F)G (espite subsection F1G" an adopted child does not cease to be regarded in law as the child of a birth parent or adoptiveparent" and the birth parent or adoptive parent does not cease to be regarded in law as the parent of the child" if an adoptionorder is made in relation to a step parent with whom the birth parent or adoptive parent is living.

F=G ,or the purposes of any law of New South ales relating to a se/ual offence Fbeing a law for which the relationshipbetween persons is relevantG" any relationship that would have e/isted if an adoption order or discharge order had not beenmade continues to e/ist for the purposes of that law in addition to any relationship that e/ists under this section by virtue ofthe order.

Thus an adopted child cannot inherit on intestacy from his?her natural parents. Iut nothing prevents a testator from

distinguishing between natural and adopted children in the ma0ing of his or her will> s.D;F=G.

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$f any woman becomes pregnant as a result of a fertilisation procedure using sperm from a man not her husband then that

man is presumed not be the father" and this presumption is irrebuttable>D

$f any woman becomes pregnant as a result of a fertilisation procedure using ovum from another woman then that woman

is presumed not be the mother" and this presumption is irrebuttable.14

Thus s.1= provides*

14 Presumptions of parentage arising out of use of fertilisation procedures

F1G hen a married woman has undergone a fertilisation procedure as a result of which she becomes pregnant*FaG her husband is presumed to be the father of any child born as a result of the pregnancy even if he did not provide any orall of the sperm used in the procedure" but only if he consented to the procedure" and

FbG the woman is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide theovum used in the procedure.

F1AG hen a woman who is in a de facto relationship with another woman has undergone a fertilisation procedure as a result ofwhich she becomes pregnant*

FaG the other woman is presumed to be a parent of any child born as a result of the pregnancy" but only if the other womanconsented to the procedure" and

FbG the woman who has become pregnant is presumed to be the mother of any child born as a result of the pregnancy evenif she did not provide the ovum used in the procedure.

F#G $f a woman Fwhether married or unmarriedG becomes pregnant by means of a fertilisation procedure using any sperm obtainedfrom a man who is not her husband" that man is presumed not to be the father of any child born as a result of the pregnancy.

F)G $f a woman Fwhether married or unmarriedG becomes pregnant by means of a fertilisation procedure using an ovum obtainedfrom another woman" that other woman is presumed not to be the mother of any child born as a result of the pregnancy. Thissubsection does not affect the presumption arising under subsection F1AG FaG.

F=G Any presumption arising under subsections F1G3F)G is irrebuttable.

FG $n any proceedings in which the operation of subsection F1G is relevant" a husbands consent to the carrying out of thefertilisation procedure is presumed.

FAG $n any proceedings in which the operation of subsection F1AG is relevant" the consent of a woman to the carrying out of afertilisation procedure that results in the pregnancy of her de facto partner is presumed.

F:G $n this section*FaG a reference to a married woman includes a reference to a woman who is in a de facto relationship with a man" andFbG a reference Fhowever e/pressedG to the husband or wife of a person*

FiG is" in a case where the person is in a de facto relationship with a person of the opposite se/" a reference to that otherperson" and

FiiG does not" in that case" include a reference to the spouse Fif anyG to whom the person is actually married.

The effect of s.1= is to e/clude the donor from being regarded as the parent of the child.

$n the case of surrogate parents this means that the birth mother and her husband are regarded as the childs parents and not the

donor mother and her husband. This in effect at law nullifies the surrogacy agreement. $n order to overcome this in one caseThe Adoption of &hildren Act 1D: Fsee now the Adoption Act #444G was used to give effect to such an agreement by ma0ingan adoption order in favour of the donor parents> Application of A and IK#444L NSS& :=4 F< uly #444G.

$n order to recognise non-commercial surrogacy arrangements the Surrogacy Act #414 was enacted. The Act commences on 1

March #411. Part ) enables the Supreme &ourt to ma0e a parentage order in favour of the persons intended to be parents underthe surrogacy agreement where certain preconditions are met.

A parentage order operates so as to ma0e the intended parents the parents of the child for the purpose of the law and cancels any

property rights of the child to the birth parents> ss. )D-=4.

D Section 1=F#G of the Status of #hildren Act 199'FNSG.14 Section 1=F)G of the Status of #hildren Act 199'FNSG.

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'n < ,ebruary #411 the %niform ules &ommittee approved amendments to the %&P" which insert a new Part :A into the

rules. The new Part includes rules that specify how an application for a parentage order is made" how it is dealt with" whatevidence is re9uired and other ancillary matters" consistent with the Surrogacy Act. ,or consistency" the rules in this part havebeen modelled on Part :" which deals with matters under the Adoption Act.

Section 14DA of the Succession Act #44: ma0es a child for the purposes of the intestacy rules a child of the intended parents

under a surrogacy agreement and provides that biological relationships inconsistent with the parentage order are to bedisregarded.

Indigenous Persons:

The &ourt may approve a scheme of distribution that is in accordance with the laws" customs" traditions and practices of the

community or group to which the intestate belonged> s.1)).

Such a scheme may displace the intestacy rules in whole or in part> s.1).

An application for a distribution order can be made by the personal representative or a person who would benefit under suchscheme.

The &ourt must have regard to the proposed scheme and laws" customs" traditions and practices of the community or group to whichthe intestate belonged.

$t must be 2ust and e9uitable to ma0e the order.

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Forfeiture *ule:

(E,$N$T$'N*A person who is otherwise a beneficiary under a will or a ne/t of 0in on intestacy may be prevented frominheriting from the deceased if they have unlawfully 0illed the deceased. This principle has been e/pressed in the case law as =...aman shall not sla his benefactor and thereb ta6e his bount...@> $n the Estate of 5all> 5all v Bnight and Ia/terK1D1=L P 1 at < per5amilton +.

O%'TE* The rule applies in cases of inheritance under a will> Tro2a v Tro2a F1DD=G )) NS+ #:D and on intestacy> e aneTuc0er Fdecd G F1D#4G #1 S FNSG 1 Tro2a v Tro2aF1DD=G and on intestacy> e ane Tuc0er FdecdGF1D#4G.

$t also applies where a person would succeed to property by reason of survivorship where one 2oint tenant unlawfully 0ills

another> e Thorp and the eal Property ActF1D:1G ;4 N FNSG :1 and asmanis v urewitsch F1D


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The forfeiture rule applies not only to 0illings that are murder> Estate of &rippen K1D11L P 14; but also manslaughter> Tro2a

v Tro2a F1DD=G )) NS+ #:D and those cases where the 0illing amounts to a lesser crime such as dangerous drivingcausing death.

Assisted Suicide

The rule applies to cases of assisted suicide> The Public Trustee of Oueensland v The Public Trustee of Oueensland C 'rs

K#41=L OS& = Honales v &laridades F#44)G or was

committed out of a desire to alleviate the suffering of the deceased without any motive to benefit> $n re (ellows illTrusts> +loyds Ian0 +td v $nstitute of &ancer esearchK1D:=L

Ialance of Probabilities

Proof of the unlawful 0illing is on the civil standard of the balance of probabilities not the criminal standard> 5elton v

Allen F1D=4G.The court will however be conscious of the gravity of the allegation and re9uire clear and satisfactory proof of the facts > $nthe Estate of Arthur Aitchison Thomson K#41L

$nsanity

The forfeiture rule will not be applied where the unlawful 0illing was committed in circumstances amounting to insanity> $n

re Plaister> Perpetual Trustee &o v &rawshawF1D)=G

but will be applied in cases of manslaughter by diminished responsibility> Tro2a v Tro2aF1DD=G

The forfeiture rule applies to all those who must claim through the 0iller Ieresford v oyal $nsurance &o +tdK1D);L A& ;:.

A%%.$AT$O! O< THE ".E&

,orfeiture rule is a stubborn rule to all cases where a right to benefit arises from an unlawful 0illing has resulted in the ruleproducing harsh results in some cases particularly where it was thought that the 0illing was not morally culpable.

As a result" the ,orfeiture Act 1DD FNSG gives power to the Supreme &ourt to e/ercise a discretion to modify the forfeiture rulein any case where it might apply> section .

5owever" the rule cannot be modified where the unlawful 0illing would amount to murder section =.

The rule has been modified under this legislation in some cases> see +eneghan-Iritton v TaylorF1DD;G and Iatey v PottsF#44=G

wills & succession notes

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