October 2003

To inherit or not to inherit: Informal testamentary documents, Division of inheritance and the Forfeiture Rule

Review of Registrar's Section 18A Declarations

Bartier Perry was recently asked to act for a person who was not satsified with declarations made by the Deputy Registrar of the Supreme Court under section 18A of the NSW Probate Act. Section 18A provides for the Court's recognition of informal testamentary documents where the formalities for making wills have not been complied with. We did not act on the initial application.

The matter involved a person who wrote two letters to his family just prior to him committing suicide. The son of the deceased claimed the two letters were informal testamentary documents and should be admitted to probate under section 18A. The Deputy Registrar declared that the Court was not satisfied that the deceased intended either of the letters to constitute his will.

After a careful review of the facts a notice of motion was filed to review the section 18A declarations made by the Deputy Registrar. The application to review is not an appeal. It is a rare application and the Court will not readily substitute its views for those of the Deputy Registrar. Notice of the application for review has to be given to any person who may be adversely affected by any review by the Court. The Deputy Registrar published the reasons for his decision.

It was permissible to file further affidavit evidence and this was done to give the Court the complete factual picture. After hearing our submissions and reviewing the further affidavit evidence, Justice Windeyer admitted the two handwritten letters to probate under section 18A. A grant of letters of administration with the letters annexed was made to the son.

The matter highlights the importance of ensuring all relevant factual matters surrounding the creation of informal testamentary documents is put before the Court. This was not done correctly at first instance in this matter and resulted in further expense for the estate. It is only with all relevant evidence before it that the Court can properly undertake the important task of ascertaining the testamentary intentions of the deceased person.

Division of inheritances under the Property (Relationships) Act 1984

Is it appropriate at the end of a domestic relationship, (which includes a defacto relationship) that part of an inheritance recently received be subject to an order made under section 20(1) of the Property (Relationships) Act 1984? This question was reconsidered in the case of Powell v Supresencia [2003] NSWSC 280.

In this case, Mr Powell, a party to a de facto relationship received a $4 million inheritance from his mother three years before the relationship of 20 years with Ms Supresencia ended.

In an earlier case under the Act of Wallace v Stanford (1995) 37 NSWLR 1 under the Act, the Court of Appeal -

  • said that a party to a de facto relationship was not usually entitled to any property inherited by the other party because the other party had made no contribution to the acquisition of the inheritance, but
  • determined that the Court could order part of the inheritance be the subject of an order if it was just and equitable to do so.

In Wallace v Stanford the Court said that the critical question is to be derived from section 20(1) of the Act, that is - "... whether having regard to -

  • the financial contributions made by or on behalf of the parties to the acquisition, conservation or improvement of any property of the parties or to the financial resources of the parties, and
  • the contributions made in the capacity of homemakers or parents to the welfare of the family constituted by the parties, their interests with respect to their property should be adjusted taking account of the justice and equity of the matter."

On this basis the Court in Powell v Supresencia ordered the payment of $616,000 to Ms Supresencia. The Court found that this was a just and equitable amount in consideration of her contribution to the relationship.

Sef Gonzales - Forfeiture Rule

Sef Gonzales has been charged with the murder of his parents and sister and has entered a plea of not guilty. Under the joint Will of his parents, he is the sole beneficiary of their estate.

Sef Gonzalez asked the executor of his father's estate to pay him sufficient money from the estate to fund his defence in the committal proceedings. The executor, after receiving legal advice, refused the request. The matter came before Justice Campbell who refused to make the order sought by Sef Gonzales who then appealed to the NSW Court of Appeal - Gonzalez v Claridades [2003] NSWCA 227.

The Court of Appeal dismissed the appeal with costs. If Sef Gonzales is convicted of murdering his parents and sister, he will not be entitled to any of his father's estate by application of the Forfeiture Rule, which prevents a murderer from taking advantage of the homicide and inheriting the victim's estate. The possible application of the Forfeiture Rule meant the administration of the estate is incomplete and Sef Gonzales has no present right, in law or equity, to the assets of the estate. The Court also rejected other submissions put for Sef Gonzales including the application of Part 68 of the Supreme Court Rules and Section 44 of the NSW Trustee Act.