December 2007

Wills & Estates Law Update - High Court litigation, family provision issues & new intestacy laws

High Court has Final Say About Disputed Will

In July 2007, the Bartier Wills & Estates Bulletin reported on the NSW Court of Appeal decision in Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor [2007] NSWCA 136. It was the case that dealt with alleged suspicious circumstances surrounding the last Will of an elderly spinster.

There were two relevant Wills. The first made with the Public Trustee on 23 January 2002 left the estate to The Royal Flying Doctor Service and The Salvation Army (the Charities).

The second dated 21 February 2002 was the one alleged to have been signed in suspicious circumstances (the Disputed Will). The Disputed Will left the deceased's home to Sandra Abel. The balance of the deceased's estate was left in equal shares to the executor, Ms Abel and the Charities.

The Charities argued, amongst other things, that the Disputed Will was the result of fraud and undue influence by Ms Abel. The Court of Appeal rejected those arguments and dismissed the appeal of the Charities.

The Charities sought leave to appeal the High Court of Austraila in Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor [2007] HCATrans 699. The application for special leave was heard by Justices Hayne and Crennan on 16 November 2007.

It took 12 minutes for the High Court to reject the application and make costs orders against the Charities. Justice Hayne stated:

"The conclusions reached in the courts below turn entirely upon the particular findings of fact made on the evidence adduced. No contested point of principle would fall for consideration if special leave to appeal were to be granted. It is not in the interests of justice generally or in the particular circumstances of this case that there should be a grant of special leave to appeal. Special leave is accordingly refused."

Court of Appeal Allows Family Provision Appeal

The NSW Court of Appeal in Nicholls v Hall & ors [2007] NSWCA 356 allowed an appeal against the decision by Chief Justice Young in Equity. The Chief Justice dismissed the original family provision claim on the basis that the plaintiff Mr David Nicholls had established very little more than the fact of paternity.

The facts established that Mr Nicholls was the child of a brief relationship between his mother and Barton Kelly (the deceased). The relationship ended before Mr Nicholls was born. Mr Nicholls was born in 1959 but did not meet his father until 1995. There had been 11 telephone calls between Mr Nicholls and his father from 1995 until the death of his father on 25 November 2004.

The deceased had three adult daughters from a later relationship. He left his estate to his three daughters equally, and made no provision for Mr Nicholls the appellant. The estate had a value of about $1.3million.

The Court of Appeal in allowing the appeal held that a relationship consisting of nothing more than bare paternity does not necessarily preclude a family provision claim (but this did not include claims against a mere sperm donor).

In this case the appellant had made an effort to find his father and had established a limited relationship with him. The appellant had needs and the estate was of sufficient size to make provision for the appellant and the deceased's three daughters. The Court ordered that the three daughters each receive two-sevenths of the estate and the appellant Mr Nicholls receive one-seventh of the estate.

Commencement of Operation of Succession Act 2006

The Succession Act 2006 has not yet commenced operation. Recent amending legislation will make some significant changes to the Act. The Act is now expected to commence operation in the first quarter of 2008. A special Bartier Bulletin will be produced in 2008 to summarise the changes to be introduced by the Act (including the changes made by the recent amending legislation).

Proposed Changes to NSW Intestacy Law

The NSW Law Reform Commission has released Report 116 (2007) - Uniform Succession Laws: Intestacy. The Report makes recommendations which propose to significantly alter intestacy law in NSW. The Report contains a draft Intestacy Bill 2007. It is anticipated that, in the future, the Succession Act 2006 will incorporate most of the provisions of the draft Bill.

The Bill defines an intestate as a person who dies and either does not leave a Will or leaves a Will which does not effectively dispose of his or her property. A major change proposed by the Bill is to allow the estate of an indigenous intestate to be distributed in accordance with a Court order that recognises indigenous laws and customs and not have that estate distributed in accordance with NSW intestacy law.

These further proposed changes to NSW succession law are part of the National Uniform Succession Law Project.

In 2008 a special Barter Bulletin will look in detail at the proposed changes to the NSW intestacy law.

Author: Gerard Basha