May 2007

Wills & Estates Law Update - settlements for minors, forensic examination & new succession legislation

Court Settlements Involving Minors

Two recent cases are a reminder that care needs to be taken in relation to Court settlements involving minors.

In Coomber v Stott, Associate Justice Macready gave his judgment on 23 May 2007. The case involved, amongst other things, determining whether there was a settlement involving a minor (Katherine Coomber) who was born on 29 February 1994. Katherine was the plaintiff making a family provision claim against the estate of her late father Bruce Thomas. Katherine's claim was made by her mother Veronica on her behalf.

Associate Justice Macready noted that whilst section 76 of the Civil Procedure Act 2005 gives the Supreme Court the unfettered discretion to approve a settlement involving a minor (being a person under a legal incapacity), the Court would only approve a settlement of a family provision claim if it were in the minor's best interests.

In Permanent Trustee v Mills, Justice Hammerschlag gave his judgment on 19 April 2007. Permanent Trustee was the sole executor under the last Will of Lucille Virginia Muir who died on 7 November 1952. It brought proceedings to determine the proper construction of the deceased's last Will dated 22 July 1949. Defendants in the proceedings included three potential beneficiaries under the Will who were minors, who had been each assisted in the proceedings by a tutor.

Justice Hammerschlag reviewed the provisions of sections 75 and 76 of the Civil Procedure Act. The sections enable the Court to approve the compromise or settlement of claims and proceedings respectively where persons under a legal incapacity are involved. A minor, that is a child under 18 years of age, is a person under a legal incapacity by virtue of section 3(1) of the Act. Whilst it was noted there were some drafting deficiencies surrounding sections 75 and 76, the general principle was clear - for the Court to approve a compromise to be entered into by a minor it must form the view that the compromise is beneficial to the minor's interests.

The tutor for the minor should consent to the compromise and the tutor's legal advisers need to express the opinion that the compromise is in the best interests of the minor.

In settlements involving minors, evidence needs to be presented about the general position and needs of the minor. Submissions also need to show that the proposed settlement or compromise is in the best interests of the minor in the circumstances of the particular matter.

Forensic Document Examiners - Agree on Specimen Signatures!

Forensic document examiners are often used to assist in disputes in deceased estates. They are able to test documents using such equipment as binocular stereomicroscopes, Video Spectral Comparators and Electrostatic Detection Apparatus to determine the manner in which a document was prepared, by whom a document was signed and if changes have been made to the document after it was prepared.

The most common services provided in the context of deceased estates include:

  • the identification of handwriting and signatures
  • distinguishing forged signatures from genuine signatures
  • the detection of additions or substitutions to a document and
  • the restoration or analysis of erased and obliterated written material on a document.

In one recent case, Bartier Perry was instructed by a person who claimed one of her mother's signatures on a Will was a forgery. The claim was disputed by our client's brother. The parties agreed to have the Will and signatures examined by a forensic document examiner.

When asked to distinguish forged signatures from genuine signatures, forensic document examiners usually call for specimen signatures. It was agreed that both parties to the dispute would provide specimen signatures of the deceased. On reviewing the specimen signatures provided by her brother, our client claimed that those specimen signatures were not genuine. Apparently in internal family business affairs, there was a practice in this particular family to have documents signed for family members by other family members where it was convenient to do so.

It is important that if specimen signatures are provided to forensic document examiners, it is agreed beforehand that those signatures are in fact genuine specimen signatures. The best specimen signatures are those that in the past have been provided to independent third parties such as banks and financial institutions, the Roads and Traffic Authority and the relevant passport issuing authority.

Succession Act 2006

The expected commencement date of this important new Act is September 2007.

Bartier Perry partner Gerard Basha has been involved in presenting seminars to the profession on behalf of the Law Society. Feedback from the profession so far has included:

  • Rural legal practitioners have been critical of the new provisions about who is entitled to see a Will on the death of the willmaker. They feel the list of people entitled to a copy of the Will is so wide that they have privacy concerns for people in small country towns.
  • Some practitioners feel the new powers of the Supreme Court (to make orders authorising the making, alteration and revocation of Wills for people who lack testamentary capacity) go too far and are not necessary.
  • The transitional provisions are complex and difficult to follow. It is a difficult and time consuming process to work out whether the new Act applies or whether the provisions of the Wills Probate and Administration Act 1898 apply in certain situations.

Author: Gerard Basha

 

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