LAW301 Assignment - SUCCESSION ESSAY PDF

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SUCCESSION ESSAY...

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LAW301 ASSIGNMENT- RESEARCH ESSAY Word Count: 2444

The argument that will be put forward is that the wishes of a deceased person should not be given primacy by the Court over other factors in determining the application for an order under c 3 of the Succession Act 20061 for provision out of the estate of a deceased person. Instead, the deceased should be free to dispose of their estate in whatever way they wish, but they have a responsibility to provide for dependant and eligible persons (with assessment of the nature and circumstances of their relationship). In agreeance with the statement of White JA in Steinmetz v Shannon, s 59 of the Succession Act does interfere with the freedom of testamentary disposition, and provision must be made for eligible applicants who received a less than adequate provision. 2 However, while the court does interfere with this freedom, they have not intruded too far in the freedom of the testator to choose who should and should not benefit from their estate. If they have not provided for these persons adequately, the court may make provision out of the estate under c 3 of the Succession Act 2006.3 Firstly, the purpose of family provision and the twin tasks undertaken by the courts must be assessed. Then, the claims of the categories of eligible persons must be evaluated. From these assessments, the importance of family provision can be gauged and how in some cases the court should intrude in order to ensure adequate provision has been provided for eligible persons.

I Purpose of Family Provision Arguably, family provision is important in order to ensure that individuals left out of wills receive what they are legally entitled to by the deceased. It is important to note that the legislation does not grant new rights of succession.4 Gleeson CJ in Vigolo v Bostin noted that this legislation preserved freedom of testamentary disposition but ‘subjected that freedom to a new qualification.’ Furthermore, the court is not entitled to redistribute the deceased’s estate in a misguided quest to maintain the unreliable concepts of fairness or morality.5 Instead, they must allow the testator to exercise their right to dispense their estate as they wish and interfere only if

1 Succession Act 2006 c 3 2 Steinmetz v Shannon [2019] NSWCA 114 3 Succession Act 2006 c 3 4 Vigolo v Bostin [2005] HCA 11 5 Steinmetz v Shannon [2019] NSWCA 114

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they have abused that right.6 This idea was also adopted by Pembroke J in Steinmetz v Shannon.7

The purpose of the family provision is not to intrude on the freedom of the testator, but rather to provide adequate provision for applicant’s proper maintenance, education and advancement in life. The court must interfere only to the extent required to apply the law of family provision.8 As specified in Vigolo v Bostin, ‘maintenance’ may imply a continuity of a pre-existing state-ofaffairs or provision over and above sustaining mere livelihood.9 Similarly, in Alexander v Jansson, ‘proper maintenance’ is not limited to a bare sustenance and requires the consideration of the claimants current position in life.10 Advancement, on the other hand, would be provisions beyond this maintenance and this provision would allow the applicant to improve their life in avenues such as further education.11

II Twin Tasks There are ‘twin tasks’ that the courts must consider when an application is made for family provision: a jurisdictional question and a discretionary question.12 Essentially, this is a two stage approach the courts must go through in order to decide whether or not an applicant may receive family provision. The range of eligible persons who can make an application for family provision is outlined in s 57 of the Succession Act.13 This is generally the spouse or de-facto partner, child, ex-spouse, people who were dependant on the deceased at any point in their lifetime, grandchild who lived with the deceased and those who were living with the deceased in a close personal relationship at the time of death.14 Under s 57(2) the child of a deceased includes biological children produced by a sexual relationship, adoptive children, the child of a de facto relationship between two women, and a child for whose long-term welfare both parties have had parental responsibility for.15 This eligibility of family provision and whether provision was left for the applicant is the jurisdictional question of the twin tasks. The eligibility of the 6 Grey v Harrison [1997] 2 VR 359 7 Steinmetz v Shannon [2019] NSWCA 114 8 Ibid 9 Vigolo v Bostin [2005] HCA 11 10 Alexander v Jansson [2010] NSWCA 176 11 Vigolo v Bostin [2005] HCA 11 12 Goodman v Windeyer (1980) 144 CLR 490 13 Succession Act 2006 c 3 s 57 14 Ibid, c 3 s 57 15 Ibid, c 3 s 57(2)

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applicant must be determined before the court will assess whether or not they have been left with adequate provision.

Once the eligibility of the applicant is determined, there must be other considerations made by the court before family provision can be granted. This is the discretionary question. It must not be assumed that the court can intrude so far on the testator’s freedom that any applicant can receive automatic family provision simply because they have been determined to be an eligible person. Instead, the court must consider the applicant’s character and circumstances. The circumstances to be assessed are outlined in s 60(2) of the Succession Act.16 The court has the discretion to not make a provision for an eligible applicant due to their character and conduct, and the assessment of such conduct is a value judgement.17 However, it is difficult to determine what is exactly is considered to be disentitling conduct.18 The applicant’s character and conduct towards the deceased must have affected the deceased to the extent of them not having a moral duty to provide provision for the applicant.19 This conduct may completely disentitle the applicant or at least limit the provision that they would be otherwise entitled to. Furthermore, the court must take on the role of a ‘wise and just testator’ as opposed to a ‘fond and foolish’ one.20 Essentially, the court must place themselves in the shoes of the testator and determine what he should that done.

III Claims of Children Children of a deceased are able to apply for family provision under s 57(1)(c). 21 It must not be assumed that a child would be granted family provision automatically upon making an application due to the simple fact of being the biological or adoptive child of the deceased. Of course, a minor would be considered to be a dependant and family provision must be provided as testators must make provision for those who are dependant upon them at the time of death. 22 However, the court does not intrude too far into the freedom of the testator so as to grant provision to any and all adult children who apply. An example of this is a child who has treated their parent callously during their lifetime and withheld their love and support (without 16 Succession Act 2006 c 3 s 60(2) 17 Vigolo v Bostin [2005] HCA 11 18 Ford v Simes [2009] NSWCA 351 19 Re Gilbert (1946) 46 SR (NSW) 20 Bosch v Perpetual Trustee Co (Ltd) (1938) 38 SR (NSW) 21 Succession Act 2006 c 3 s 57(1)(c) 22 Alexander v Jansson [2010] NSWCA 176

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justification).23 Therefore, the court protects the testator’s rights to not give provision to a child who has estranged themselves from them without justification. An example is in Ford v Simes, in which the applicant was denied provision due to abandoning his father for 14 years (until his father’s death).24 This is also seen in Underwood v Gaudron, in which the applicant was denied provision due to the abandonment of the deceased with no justification for many years. 25 Obviously, the courts do not allow an applicant to cease contact with their parent with no justification or act callously and then receive financial gain from their death. In the case of an applicant with a criminal history, a child is not automatically barred from making an application for family provision based on the fact that they have a criminal record. 26 There must be other factors before family provision can be denied, including a long and serious criminal history and shame brought upon the deceased by society due to these actions.27 In the denial of family provision in such circumstances, the court protects the testator’s last wishes.

On the other hand, the court also protects children who have been unfairly left out of their parent’s will for engaging in conduct that the parent disagreed with. An example of how this has been played out is in Keep v Bourke, in which the applicant was granted provision despite their estrangement as she was disinherited for marrying somebody her parents did not approve of. 28 Obviously, marrying a person against parental approval is not morally reprehensible according to community standards. It would be fundamentally unfair for a child of a testator to receive no provision due to an estrangement based on a parent’s lack of approval for their child’s lifestyle. Therefore, it can be said that the court has not intruded too far on the freedom of the testator to choose who benefits from their estate. Rather, the court corrects the wrong that has been made and only that wrong.

IV Claims of Spouses and De-Facto Partners Spouses and de-facto partners of a testator are considered to be eligible persons to make applications for family provisions if they have been inadequately provided for in a will. The legislation for this is covered in s 57(1)(a)-(b) for spouses and de-facto partner’s respectively. It must be noted that a separated spouse is considered to be a current spouse for the purpose of 23 Ford v Simes [2009] NSWCA 351 24 Ibid 25 Underwood v Gaudron [2014] NSWSC 1055 26 Wilson v Public Trustee [2009] NSWCA 464 27 Hastings v Hastings [2008] NSWSC 1310 28 Keep v Bourke [2012] NSWCA 64

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family provision. Generally, a testator does not need to treat their adult children as generously as their widow.29 However, the age of the widow and their capability of making an income is important in the consideration of how much family provision they should receive.30 In Harris v Harris, the courts refused an application for family provision for the son of the testator due to the provision already provided for the widow in the deceased’s will. 31 In this case, a son’s claim for family provision was trumped by the needs of the deceased widow due to her age and extensive health issues as compared to those of the son.32 Due to the often advanced age of the deceased (and their widow respectively) in cases of family provision, they receive a more generous consideration as the majority of adult children have the capacity to gain an adequate income. The factor of being the spouse of the deceased should be given primacy over the testator’s will. A widow has lived with a testator for many years with mutual love and affection and make a home together and in many situations have raised children together. If inadequate provision has been provided for the spouse (or de-facto partner) of a deceased, the court can understandably step in and provide provision.

The definition of a de-facto partner is covered in s 21C of the Interpretation Act 1987 (NSW).33 This covers the requirements a relationship must meet before it can be considered de-facto. Once these requirements have been met, they have the same rights of family provision as a spouse.

V Claims of Former Spouses Former spouses of a testator are also eligible to apply for family provision under s 57(1)(d). 34 Certain factors need to be assessed before a family provision may be granted to a former spouse of the testator. Merely being the former spouse of the deceased is not enough to be granted family provision: other factors must be assessed by the court. Under Milewski v Holben, the factors to be assessed are the length of marriage and fault of the divorce, the existence of a property settlement and the fairness of that settlement and the nature of the relationship after the divorce.35 In cases of serious abuse (to the extent of causing disability) by the testator towards 29 Odgen v Green [2003] NSWCA 352 30 Milillo v Konnecke [2009] NSWCA 109 31 Harris v Harris [2018] NSWSC 552 32 Ibid 33 Interpretation Act 1987 (NSW) 34 Succession Act 2006 c 3 s 57(1)(d). 35 Milewski v Holben [2014] NSWSC 388

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the applicant in the duration of their relationship, family provision will be dispensed. 36 In situations of this kind of abuse occasioning disability towards the applicant, it is only fair that family provision be granted due to the morally reprehensible acts the deceased has conducted towards the applicant.

VI Claims of Other Applicants There are other applicants that may apply for family provision. These eligible persons are covered in s 57(e)-(f).37 Under s 57(e)(ii) a grandchild of the testator is eligible to apply for family provision if they were a member of the grandparent’s household at any point of their lifetime.38 In usual circumstances a grandparent has no responsibility to provide their grandchild with provision.39 However, if the relationship between the grandparent and grandchild extends further than a normal relationship of that nature in regards to care and affection, they are eligible to receive family provision.40 This often occurs in situations in which the applicant’s parents were deceased or otherwise unable to care for the applicant during childhood, and thus the grandparent took on a more parental role.41 In cases where a grandchild in this kind of situation was left without adequate provision, it would be unfair for provision to be left for the deceased’s own children without provision being left for the grandchild who was raised as their own child at one point of their life. In situations like these, the court should have the ability to right the wrong that has been committed and step in to provide adequate provision to the applicant.

Stepchildren are also eligible to apply for family provision under certain conditions. Not all stepchildren are eligible, of course. They are only allowed to apply for family provision if they were part of the testator’s household and also dependant on them.42 However, that isn’t enough to warrant the allowance of an application for family provision. The relationship between the testator and their stepchild must also have essentially been the equivalent of a parent and child.43 This requirement ensures that stepchildren with no close personal relationship with their stepparent can’t benefit financially from their death. On the other hand, this also allows

36 Lodin v Lodin [2017] NSWCA 327 37 Succession Act 2006 c 3 s 57(e)(i) 38 Succession Act 2006 c 3 s 57(e)(ii) 39 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 40 Chapple v Wilcox [2014] NSWCA 392 41 Estate of Kallidis; Kallidis v Kallidis [2012] NSWSC 1485 42 Petrohilos v Hunter (1991) 25 NSWLR 343 43 Diver v Neal [2009] NSWCA 54

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stepchildren who were raised like children of a testator to be treated as such by the court and receive the adequate provision that they deserve.

Under s 57(f) a person who had lived with the deceased in a close personal relationship at the time of death is eligible to apply for family provision.44 However, they are subject to the assessment of factors before they are able to make an application.45 In some cases an eligible applicant is entitled to more money than that of the deceased’s own family. 46 Of course, the court does not go so far as to allow family provision for individuals who provided domestic care for the deceased in return for monetary compensation.47 This ensures that those who were engaged in a business relationship with a testator are unable to gain financial benefit from their death. The allowance of family provision for those in a close personal relationship with a testator ensures that those who do not fit into the categories of family or romantic relationship are still able to receive adequate provision.

To summarise, from the assessment of the purpose of family provision and the eligible persons it is evident that the wishes of the testator should be met so long as eligible persons are provided for adequately. While the court does intrude in freedom of the testator in some cases, it is only to correct a wrong that has been committed.

BIBLIOGRAPHY A Cases Alexander v Jansson [2010] NSWCA 176 44 Succession Act 2006 c 3 s 57(f) 45 Ibid, c 3 59(1)(b) 46 Fung v Ye [2007] NSWCA 115. 47 Skarica v Toska [2014] NSWSC 34

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Bosch v Perpetual Trustee Co (Ltd) (1938) 38 SR (NSW)

Bowditch v NSW Trustee and Guardian [2012] NSWSC 275

Chapple v Wilcox [2014] NSWCA 392 Diver v Neal [2009] NSWCA 5

Estate of Kallidis; Kallidis v Kallidis [2012] NSWSC 1485

Ford v Simes [2009] NSWCA 351

Fung v Ye [2007] NSWCA 115 Goodman v Windeyer (1980) 144 CLR 490 Grey v Harrison [1997] 2 VR 359 Harris v Harris [2018] NSWSC 552 Hastings v Hastings [2008] NSWSC 1310

Keep v Bourke [2012] NSWCA 64

Lodin v Lodin [2017] NSWCA 327

Milewski v Holben [2014] NSWSC 388

Milillo v Konnecke [2009] NSWCA 109

Odgen v Green [2003] NSWCA 352

Petrohilos v Hunter (1991) 25 NSWLR 343 Underwood v Gaudron [2014] NSWSC 1055 Re Gilbert (1946) 46 SR (NSW)

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Skarica v Toska [2014] NSWSC 34

Steinmetz v Shannon [2019] NSWCA 114 Vigolo v Bostin [2005] HCA 11 Wilson v Public Trustee [2009] NSWCA 464

B Legislation Interpretation Act 1987 (NSW) Succession Act 2006...