General issues and key definitions

  • Succession: the body of law relating to devolution of property on death.
    • Succession may be testamentary (where the deceased leaves a will) or testamentary (where the deceased fails to dispose of some or all of their property by will.
  • Three areas of law related to death:
    • procedural (registration),
    • coronial, and
    • succession.
  • Succession:
    • litigious:
      • contesting the validity of wills,
      • construction of wills,
      • administrative disputes, and
      • family provision;
    • non-litigious:
      • drafting wills, and
      • administration of estates.
  • Key terms:
    • ‘Will’ — a document properly executed by a person having testamentary capacity containing that person’s post-mortem wishes, and which has not been revoked. ‘Will’ once referred to testamentary disposition of land only.
    • ‘Testament’ — archaic term for a will relating to chattels only.
    • ‘Codicil’ — a will that alters, amends or extends an existing will.
    • ‘Testator’ — the person who makes a will (archaic female form: testatrix).
    • ‘Intestacy’ — death without a valid will that disposes of all of the deceased’s property. ‘Partial intestacy’ arises where a will fails to dispose of all of the deceased’s property.
    • ‘Probate’ — a grant by a court exercising probate jurisdiction certifying the validity of the will and authorising the executor to administer the state (giving legal force to the will).
    • ‘Letters of administration’ — a grant made by a court, like probate, but authorising an administrator to administer the estate usually in cases of intestacy.
    • ‘Legal personal representative’ — an executor or administrator.
  • Testamentary freedom & forced inheritance
    • The dominant theme in common law jurisdictions since c. 1800 is testamentary freedom, modified by family provision legislation.
    • Many civil law jurisdictions have total or partial forced inheritance that are based on Roman law notions of filial duties. Community property is generally not subject to succession.

Historical background

Anglo-Saxon period. The ‘cwide’, an early form of will with little or no formalities. All property except that which required royal consent could be left by will.

Norman Conquest (1066). Introduction of feudalism and wills of chattel only. Land passed to the heir-at-law. The distinction between succession to chattels and succession to land remained until 1837.

14th Century (1300s). Restrictions on disposition of chattels (a third each by will, to the church, and to spouse) begin to disappear). The ‘use’ is recognised in equity as a form of trust to bypass prohibition of disposition of land by will. Ecclesiastical courts administer testaments and intestacy of chattels under canon law.

Statute of Uses 1535, 27 Hen 8 c 10. Unpopular legislation that abolished the use.

1532–1536. Canon law shifts from the jurisdiction of the papacy to the jurisdiction of the King. This law, which included testamentary disposition of chattels, became a branch of English domestic law.

Statute of Wills 1540, 32 Hen 8 c 1 allows wills of all land held in socage tenure, and two-thirds of land held in military tenure. Written will required.

Tenures Abolition Act 1660, 12 Car 2 c 24 abolishes military tenures upon the Restoration of the Monarchy in 1660: all land could now be left by will.

Statute of Distributions 1670, 22 & 23 Car 2 c 10 provides for distribution of chattels upon intestacy.

Statute of Frauds 1677, 29 Car 2 c 3 requires wills of land to be signed and in writing by the testator, and have three or four witnesses.

Inheritance Act 1833, 3 & 4 Will 4 c 106 abolishes primogeniture so that land passed on intestacy in the same manner as chattels. Adopted in New South Wales by the Real Estate of Intestates Distribution Act 1862 (NSW).

Wills Act 1837, 7 Will 4 & 1 Vic c 26 provides for a common form of will for both chattels and realty. Adopted in New South Wales by the Imperial Act Adoption Act 1839 (NSW) 3 Vic No 5.

Probate Act 1857, 20 & 21 Vic c 77 creates a court of probate and removes administration of estates from ecclesiastical courts. Land and personalty are administered in the same way. Adopted in New South Wales by the Probate Act 1890 (NSW).

Wills, Probate and Administration Act 1898 (NSW) consolidates Probate Act 1839 (NSW) 3 Vic No 5 and Probate Act 1890 (NSW).

Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) enables the court to make provision for spouses and children where a testator failed to do so in their will. Replaced by the Family Provision Act 1982 (NSW), which expanded the categories of person who could seek provision.

Children (Equality of Status) Act 1976 (NSW). All children to be treated equally irrespective of whether the parents were married at the time of birth. Inheritance no longer depended on birth in lawful wedlock.

Wills, Probate and Administration (Amendment) Act 1977 (NSW) introduces the contemporary rules of intestate succession.

Artificial Conception Act 1984 (NSW) introduces presumptions relating to children conceived as a result of various fertilisation procedures.

Wills, Probate and Administration (De Facto Relationships) Amendment Act 1984 (NSW) allows de facto spouses to inherit on intestacy subject to certain restrictions. Definition of de facto relationship broadened in 1999 to include same-sex couples by the Property (Relationships) Amendment Act 1999 (NSW).

Wills, Probate and Administration (Amendment) Act 1989 (NSW) allows dispensation of formalities (s 18A) and rectification (s 29A), abolished requirement that will must be signed at foot of page (repealed s 8) and privileged testators (repealed s 10), modified witness beneficiary rule (s 13), and permitted revocation on divorce (s 15A).

Forfeiture Act 1995 (NSW) provides that a person unlawfully killing another in circumstances that do not amount to murder may seek modification of the rule prohibiting them from inheriting from the deceased.

Status of Children Act 1996 (NSW) consolidates the law relating to ex-nuptial and artificially-conceived children.

Succession Act 2006 (NSW) enacted as part of the Uniform Succession Project to reform the law relating to wills. It repealed the remaining first 40 sections of the Wills, Probate and Administration Act 1898 (NSW), and renamed it to the Probate and Administration Act 1898 (NSW).

Succession Amendment (Intestacy) Act 2009 (NSW) repeals Pt 2 Div 2A of the Probate and Administration Act 1898 (NSW) and inserts a new Ch 4 into the Succession Act 2006 (NSW) to deal with intestate succession.

Relationships Register Act 2010 (NSW) allows for persons in a registered relationship to be regarded as spouses.

Surrogacy Act 2010 (NSW) allows the court to make parenting orders where there is a surrogacy agreement.

Death: formalities

  • Registration of death — Births, Deaths and Marriages Registration Act 1995 (NSW) s 36:
    • s 36(1) — if a person dies in NSW the death must be registered,
    • s 36(2) — if a court orders registration of death, it must be registered,
    • s 36(3) — discretionary registration if death occurs on inbound flight or voyage,
    • s 36(4) - discretionary registration if death overseas of a NSW resident,
    • s 36(5) - sub-ss (3)–(4) not necessary if registered under a corresponding law,
    • s 36(6) — stillborn children not to be registered, and
    • s 36(7) — s 36 subject to s 38.
  • A medical practitioner who has seen the deceased within six months of death may issue a death certificate: Births, Deaths and Marriages Registration Act 1995 (NSW) s 39.
    • If longer than six months, the death must be reported to the coroner: Coroners Act 2009 (NSW) s 38.
    • All suspicious deaths must be reported to the coroner and are ‘reportable deaths’ — Coroners Act 2009 (NSW) s 35:
      • s 35(1) the section applies to people who have reasonable grounds to believe that a death or suspected death is an unreported reportable death.
      • s 35(2) deaths or suspected deaths must be reported to a police officer, coroner or assistant coroner as soon as possible.
      • s 35(3)–(5) are concerned with the reporting duties of police and coroners.
    • Definition of a ‘reportable death’ — Coroners Act 2009 (NSW) s 6(1):
      • s 6(1)(a) — violent or unnatural deaths,
      • s 6(1)(b) — sudden deaths with unknown cause,
      • s 6(1)(c) — deaths in suspicious or unusual circumstances,
      • s 6(1)(d) — deaths without attendance by a medical practitioner during the six months before death,
      • s 6(1)(e) — deaths that were not the reasonably expected outcome of a health-related procedure carried out in relation to the person, and
      • s 6(1)(f) — deaths while in or temporarily absent from a declared mental health facility while the person was resident at the facility for the purposes of receiving care, treatment or assistance.
      • s 6(2) — medical practitioners include interstate practitioners.
      • s 6 — ‘health-related procedure’ includes medical, surgical, dental and other health-related procedure (including the administration of an anaesthetic, sedative or other drug), excluding anything prescribed in the regulations as being as ‘extended procedure’.
    • Coroners may hold an inquest if it appears to them that the death is, or could reasonably be, a reportable death, or a medical practitioner has not given a certificate as to the cause of death: Coroners Act 2009 (NSW) s 21(1)–(2).
  • Requirement to hold inquests into death — Coroners Act 2009 (NSW) s 27:
    • s 27(1)(a) — if suspected homicide (excluding suicide),
    • s 27(1)(b) — if jurisdiction arises under s 23,
    • s 27(1)(c) — if death, identity, date or place of death, have been insufficiently disclosed, or
    • s 27(1)(d) — if manner and cause of death have been insufficiently disclosed.
  • Inquests are not required if it appears to the coroner that an inquest or other official inquiry concerning the death or suspected death has been held, or is to be held, outside the state: Coroners Act 2009 (NSW) s 21(2).
  • Burial or cremation of a body — Coroners Act 2009 (NSW) s 100:
    • s 100(1) — burial or cremation only if an appropriate disposal authorisation has been given or the disposal of the remains is otherwise authorised by the regulations.
    • s 100(2) — disposal authorisation or authorisation under the regulations must be given to deliver human remains for anatomical or medical research, or to remove non-cremated human remains from the state.
    • s 100(3) — appropriate disposal authorisations for deaths other than stillborn children include a notice given by a medical practitioner under s 39 of the Births, Deaths and Marriages Registration Act 1995 (NSW), an order by the coroner under s 101 of the Coroners Act 2009 (NSW), or a certificate issued under s 51 of the Births, Deaths and Marriages Registration Act 1995 (NSW). For stillborn children, a certificate given by a medical practitioner under s 12(3) of the Births, Deaths and Marriages Act 1995 (NSW) or an order by a coroner under s 101 of the Coroners Act 2009 (NSW).

Death: presumptions

  • Definition of death — Human Tissue Act 1983 (NSW) s 33:
    • s 33(a) — irreversible cessation of all function of the brain, or
    • s 33(b) — irreversible cessation of circulation of blood.
    • It applies ‘for the purposes of the law of New South Wales’.
    • Definition only applies where there is a body.
  • Death must at common law be proved as a question of fact, either:
    • directly, where there is a body, or
    • indirectly as a matter of implication from known circumstantial evidence.
  • A person wishing to prove an entitlement based on their having survived another person must at common law prove that fact: Wing v Angrave (1860) 11 ER 397.
    • ‘Before legatee is entitled to share in the estate of a testator he must show that he has survived the testator, and so must those who claim through the legatee’ — Re Dolling [1956] VLR 535, 537.
  • Probate may be granted upon a presumption of death: Probate and Administration Act 1898 (NSW) s 40A.
  • If a person is not heard from for a period of seven years by those persons who would be expected to have had communication with them, a court may presume that person is dead: Axon v Axon (1937) 59 CLR 295, 404–405 (Dixon J).
    • Circumstances may reduce this period: Re Matthews [1898] P 17.
    • Regardless of the circumstances, if no one has heard of the whereabouts of the person, the court can apply the presumption: Grieve v Registrar General (Unreported, Supreme Court of New South Wales, Young J, 3 April 1997).
    • If the person appears after the presumption is made probate/administration must be revoked: Probate and Administration Act 1898 (NSW) s 40C; Ex parte Keegan (1907) 7 SR (NSW) 565.
  • It is important to distinguish between cases involving a presumption of death and cases where death can be inferred from the circumstances: Re Smith (1975) 6 ALR 123.

Order of death

  • At common law the order of death had be proved by evidence.
    • Difficulty arose in near-simultaneous deaths (eg plane crashes).
  • Order of death under the Conveyancing Act 1919 (NSW) s 35: if the order of death is uncertain it is presumed the persons died in order of seniority, the youngest dying last.
    • Applies to ‘all purposes affecting the title to any property’.
    • It must be uncertain on the evidence as to the order: Re Plaister; Perpetual Trustee Co v Crawshaw (1934) 34 SR (NSW) 547.
  • Halbert v Mynar [1981] 2 NSWLR 659 (prepare case note).
  • The seven year rule is incompatible with the Conveyancing Act 1919 (NSW) s 35:
    • The seven year rule presumes that death occurred during the previous seven years, but does not presume a specific time.
      • The actual time of death must be proved to show that a legatee survived a testator: Re Dolling [1956] VLR 535.
    • Conveyancing Act 1919 (NSW) s 35 requires uncertainty of the order of death: the circumstances of death must be known.
  • The circumstances of each death does not need to be the same to satisfy s 35 of the Conveyancing Act 1919 (NSW): Hickman v Peacey [1945] AC 304, 314–315.

Survivorship

  • Succession Act 2006 (NSW) s 35: a beneficiary of a will who dies within 30 days of the death of the testator is presumed to have died immediately before the testator, unless contrary intention is shown in the will.
    • Applies only where a will has been made after 1 March 2008.
  • Succession Act 2006 (NSW) s 107: a person must survive the deceased by 30 days in order to inherit where the deceased diest intestate.
    • Applies only where the deceased died intestate after 1 March 2010.
  • Succession Act 2006 (NSW) does not alter the operation of s 35 of the Conveyancing Act 1919 (NSW), but does remove the consequences of determining the precise order of death.

Disposal of the body

  • A corpse cannot own property: Haynes’ Case (1614) 77 ER 1389.
  • There is no property in all or part of a corpse — Doodeward v Spence (1908) 6 CLR 406:
    • Stealing a corpse is trespass to the land in which it is buried.
    • A corpse becomes part of the land in which it is buried.
    • Some proprietary rights may exist where a person performs work or skill on a corpse.
      • Extraction of semen by a medical practitioner at the request of the widow can constitute performance of work or skill capable of forming property and thus give the widow a right to possession: Edwards; Re Estate of Edwards (2011) 81 NSWLR 198 [86]–[91] (Hulme J).
        • This is not the position in Queensland: In the matter of Gray [2001] 2 Qd R 35; Baker v State of Queensland [2003] QSC 2; cf Re Denman [2004] 2 QD R 595.
    • Possession of a corpse is only lawful for the purpose of immediate burial.
    • Doodeward v Spence was not followed by the English Court of Appeal in Yearwood v North Bristol NHS Trust [2010] QB 1 at least in respect to semen the subject of an action in negligence.
    • This prohibition may be lifted if any form of dissection or preservation has been applied to a tissue sample: AB v Leeds Teaching Hospital NHS Trust [2005] EWHC 644.
  • Interference with a corpse is an offence at common law: R v Lynn (1788) 100 ER 394.
    • See also reg 69 of the Public Health Regulation 2012 (NSW).
    • Organ donation is authorised by ss 23–24 of the Human Tissue Act 1983 (NSW).
    • Medical research is authorised by ss 8–8A of the Anatomy Act 1977 (NSW).
  • Human Tissue Act 1983 (NSW) s 7 allows the removal of regenerative tissue:
    • only from an adult person with their consent, and
    • only for transplantation or other therapeutic, medical or scientific purposes.
  • Human Tissue Act 1983 (NSW) s 8 allows the removal of non-regenerative tissue:
    • only from an adult person with their consent, and
    • only for the purposes of transplantation.
  • ‘Tissue’ includes blood, ova, semen and foetal tissue: Human Tissue Act 1983 (NSW) s 4(2A).
  • A person over 16 may consent in writing to removal of blood for therapeutic purposes or for transfusion to another person: Human Tissue Act 1983 (NSW) s 19.
  • The Human Tissue Act 1983 (NSW) does not authorise the removal of semen from a comatose person where that person has not previous consented: MAW v Western Sydney Area Health Service (2009) 49 NSWLR 231, 244.
    • It may be possible if the person is deceased, if the requirements of s 23(3) are satisfied.
    • The court cannot exercise its parens patriae jurisdiction over disabled persons to authorise removal of semen for artificial insemination because it will not preserve the life of, safeguard, secure or promote, or prevent the duration in the physical or mental health of the disabled person: MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231, 242.
  • Where the body of the deceased is at hospital and the person, during their lifetime, consented (without revocation) to the removal of tissue after death for transplantation to a living person, the tissue may be removed: Human Tissue Act 1983 (NSW) s 23(1).
    • Human Tissue Act 1983 (NSW) s 24 applies where the body is not at a hospital.
    • Transplantation includes artificial insemination: s 4(3).
      • Artificial insemination refers to fertilisation outside of the womb for the purpose of implanting in the woman or another woman: s 4(1).
    • A designated officer of a hospital may permit the removal of tissue from the body of a deceased person at the hospital if satisfied the deceased consented in writing: Human Tissue Act 1983 (NSW) s 23(1).
      • They do not need evidence of written consent if they are satisfied from enquiries that they had not expressed objection and the next of kin consents in writing: Human Tissue Act 1983 (NSW) s 23(3).
    • Removal of tissue under s 23 is only for transplantation to the body of a living person or for some therapeutic, medical or scientific purpose.
      • Removal of semen for possible later use may be regarded as a medical purpose: Edwards; Re Estate of Edwards (2011) 81 NSWLR 198 [32]; see also Y v Austin Health (2005) 13 VR 363 [39].
  • Executor has the right to custody and possession of the body for burial: Williams v Williams (1882) 20 Ch D 659, 665 (Kay LJ).
    • An action will lie to recover the body but only for this purpose.
    • See also: Dobson v North Tyneside Health Authority [1997] 1 WLR 596, 600.
  • Testator’s funeral wishes are not binding on the executor at common law, but written instructions against cremation are binding: Public Health Regulation 2012 (NSW) reg 77.
  • Public Health Regulation 2012 (NSW) reg 66: burials in certain areas prohibited.
    • Sets out the requirements for where a body may be placed for burial.
  • Where there is no executor, the next of kin (who has the highest right to administration of the estate) has the right to bury: Jones v Dodd (1999) 73 SASR 328 [46].
    • This rule may be departed from where cultural, religious or spiritual considerations apply: Jones v Dodd (1999)73 SASR 328 at [46], [50]-[51].
      • Deviation will only occur in an extremely rare case: Burrows v Cramley [2002] WASC 47 [27].
      • See also: Roma v Ketchup [2009] QSC 442.
    • If there is no next of kin, the person in whose house the deceased dies.
  • A person who expends money on the burial of another has restitutionary rights to recover expenses from the estate: Smith v Tamworth City Council (1997) 41 NSWLR 680, 693–694; Zannetides v Spence [2013] NSWSC 2032.
  • The right to bury a child prefers biological parents to foster parents or carers: Warner v Levitt (Unreported, Supreme Court of New South Wales, Brownie J, 23 August 1994).
  • A de facto spouse has a higher right to burial than other relatives of the deceased: Burnes v Richards (Unreported, Supreme Court of New South Wales, Cohen J, 6 October 1993); Brown v Tulloch (Unreported, Supreme Court of New South Wales, Waddell CJ in Eq, 18 October 1992).
    • Other relatives include children; however if the marriage has been short and the deceased had greater long-term connection to the place where their children wish to bury, those wishes may prevail: Laing v Laing [2014] QSC 194.
  • If two or more persons have an equal right to bury, the practicalities of an urgent burial prevail.
    • In the case of a child where to parents have an equal right to bury but are in dispute, the court may favour the parent with the closest bond: AB v CD [2007] NSWSC 1474; Joseph v Dunn [2007] WASC 238.
  • A right of burial is an irrevocable licence over the body in the ground.
  • A cemetery authority is empowered to make reasonable by-laws for the maintenance and appearance of a headstone: Crown Lands (General Reserves) By Law 2006 (NSW) cl 25.
    • Will be repealed upon commencement of the Cemeteries and Crematoria Act 2013 and replaced with new regulations under s 106 of that act.
    • Subject to those by-laws, the holder of the right to bury has power to decide the appearance and headstone of the grave.
      • The right to bury and attached rights relating to headstones, etc, are not forfeited if the holder authorises another person to arrange the funeral: Escott v Brikha [2000] NSWSC 458.
      • Reasonable cost of a reasonable headstone is recoverable from the deceased’s estate: Zannetides v Spence [2013] NSWSC 2032.
  • The holder of the right to bury cannot exclude friends and relatives from expressing affection for the deceased in an appropriate manner (placing flowers, etc).
    • This may be subject to regulations of the cemetery authority: Crown Lands (General Reserves) By Law 2006 (NSW) cl 26.
      • Will be repealed upon commencement of the Cemeteries and Crematoria Act 2013 and replaced with new regulations under s 106 of that act.
  • After the death of the executor or administrator, the right to control the grave passes to the legal personal representative of the deceased, not the holder of right to bury.
  • The right to bury is distinguished from the right to bury a person in a particular plot: the right to use the plot is a property right: Rutherford v Wallace [1999] NSWCA 299.
    • An unused burial plot can be reacquired by a cemetery authority after 50 years: Crown Lands (General Reserves) By Law 2006 (NSW) cls 34–35.
      • Will be repealed upon commencement of the Cemeteries and Crematoria Act 2013 and replaced with new regulations under s 106 of that act.
  • Cemeteries and Crematoria Act 2013 (NSW):
    • regulates interment industry (cemetery operators, funeral directors and funeral funds), and
    • regulates and controls rights with respect to graves.
    • s 47 — creates two types of exclusive rights to interment:
      • a perpetual interment right, and
      • a renewable interment right.
    • s 54 — renewable interment rights are granted in respect of remains for an initial term not exceeding:
      • 99 years for cremated remains, and
      • 25 years for non-cremated remains.
      • Cemetery operators may grant much shorter periods.
    • s 54(3) — rights may be renewed for periods not exceeding 5 years upon payment of prescribed fee, provided the initial period and renewal period does not exceed 99 years.
    • s 55 — Cemetery operators may reuse (re-grant) the site and remove memorials (subject to heritage requirements) after 2 years from the expiry of a renewable right.
      • s 55(6) — The site may not be reused if human remains have been buried in the site for less than 25 years.
    • s 62 — no interment right is required for scattering cremated remains.
    • s 49 — interment rights may be left by will.
    • s 50 — interment rights may pass on intestacy.
    • s 51 — interment rights may be held jointly and pass to the survivor.
    • s 60 — interment rights may be transferred, but transfer may be refused if a cemetery operator believes it would tend to create a monopoly or encourage dealing in interment rights.
    • s 52 — perpetual interment rights may be revoked by the cemetery operator if unexercised within 50 years of being granted.

Funeral expenses and gifts in wills for the erection and maintenance of graves

  • The executor or person entitled to administration who orders the funeral is entitled to reimbursement of reasonable funeral costs.
    • “Reasonable” is determined according to the “degree and quality” and “rank and circumstances” of the deceased, and relevant cultural factors: Mullick v Mullick (1829) 12 ER 312.
  • If a third party ordered the funeral, then they are entitled to reimbursement.
  • A person who orders an extravagant funeral can only recover what is reasonable.
  • A trust in the will for the maintenance of the testator’s grave will not be valid as a private trust if in perpetuity, with the exception of charitable trusts: Pedulla v Nasti (1990) 20 NSWLR 720.
    • There are some anomalous cases that permit trusts for the maintenance of graves if they can be limited to 21 years: Pedulla v Nasti (1990) NSWLR 720.