May 2008

Wills & Estates Law Update - new succession legislation & family's rights regarding autopsies

Succession Amendment (Family Provision) Bill 2008 - important proposed amendment to NSW Family Provision Law

Family provision law in New South Wales will soon change as part of the overall push for consistent succession laws throughout Australia. The NSW Family Provision Act 1982 was used as a basis for the recently released Succession Amendment (Family Provision) Bill 2008.

The stated objects of the Bill are to:

  • amend the NSW Succession Act 2006 to include the law relating to family provision in the Act;
  • provide for regulations to be made to promote the use of mechanisms to encourage settlement of family provision disputes;
  • provide for regulations to be made to control legal costs in family provision matters;
  • provide for regulations to be made to control advertising by legal practitioners in relation to family provision claims;
  • repeal the NSW Family Provision Act 1982;
  • make provisions to deal with the transition from the old law to the new law; and
  • to make consequential amendments to other legislation when the Bill becomes law.

There are some aspects of the Bill that are still being discussed and may change, especially the proposed mechanisms to encourage settlement. Important matters to note from the Bill at this stage include:

  • The preservation of the class of "eligible persons" under current NSW law who may apply to the Court for a family provision order in respect of a deceased person. Proposed section 57 specifies the persons who may apply.
  • The time limit for making a family provision claim will be reduced to 12 months from the death of the deceased person, unless the Court otherwise orders (proposed section 59). At present, NSW law allows for a period of 18 months from the death of the deceased person.
  • The preservation of the notional estate concept under current NSW law. Proposed sections 75 to 91 deal with notional estate orders. The main purpose of the notional estate provisions is to ensure assets are brought back into the estate that may have been distributed either before or after the death of the deceased with the intention of defeating family provision claims. The notional estate provisions ensure those assets are available to meet family provision orders made by the Court.
  • There are special provisions for eligible persons who lack capacity to apply to the Court for a family provision order. Proposed section 58 sets out the persons who may apply to the Court on behalf of an incapable person. The section also allows for Court advice or directions to be obtained as to whether an incapable person ought to make a claim.
  • Proposed section 100 gives the Court power to order costs in family provision proceedings in such manner as it thinks fit. The section also enables regulations to be made to cap legal costs (see the discussion in the Bartier Wills and Estates Bulletin of September 2007).

Bartier Perry will continue to monitor and report on the progress of this important proposed change to NSW family provision law.

Family Object to Autopsy

Bartier Perry recently acted for a family who lost their elderly mother in tragic circumstances. The elderly mother was sweeping the stairs of her unit when she slipped, fell and hit her head. She died several days later as a result of the injuries from the fall.

The Coroners Office wanted to order a post mortem examination (autopsy) pursuant to the Coroners Act 1980 (NSW). The children of the deceased strongly objected to an autopsy as there were no suspicious circumstances and they wanted their mother buried without the intrusion of an autopsy.

The family of the deceased by written notice pursuant to section 48A of the Coroners Act requested that the Coroner not conduct a post mortem examination of their mother. If the Coroner, despite the written notice, decided to proceed with the post mortem examination,the family were prepared to apply to the Supreme Court to prevent the autopsy. Fortunately for the family, the Coroner agreed not to proceed with a post mortem examination of the deceased.

In circumstances where there may be disputes over an autopsy or a right of burial, if action is taken quickly the legal position can be protected and the wishes of the deceased and family members followed.