Wills and succession: introductory notes

General issues and key definitions

  • There are three areas of law related to death:
    • procedural (registration);
    • coronial (involving inquiries); and
    • succession.
  • Succession has two kinds of aspects:
    • litigious aspects involve:
      • contesting the validity of wills;
      • the construction of wills;
      • administrative disputes; and
      • family provision; and
    • non-litigious aspects involve:
      • drafting wills; and
      • administration of estates.
  • Succession is the body of law relating to devolution of property on death, and may be:
    • testamentary, where the deceased leaves a will; _ non-testamentary, where the deceased fails to dispose of their property by will; or _ partially-testamentary, where the deceased disposes of only part of their property by will.
  • A will is a document that:
    • is properly executed by a person with testamentary capacity;
    • contains a person’s post-mortem wishes; and
    • has not been revoked before their death.
  • Historically:
    • a will was once the testamentary disposition of land only; and
    • a testament was once the testamentary disposition of chattels only.
  • A codicil is a will that alters, amends or extends an existing will.
  • A testator or testatrix (archaic female form) is the person who makes a will.
  • Intestacy refers to death without a valid will. Partial intestacy arises where a will fails to dispose of all of the deceased’s property.
  • Probate is a grant by a probate court:
    • certifying the validity of a will; and
    • authorising the named executor to administer the estate (giving legal force to the will).
  • Letters of administration are granted by a court to authorise an administrator to administer the estate in case of intestacy.
  • A Legal personal representative is an executor or administrator of an estate.
  • Testamentary freedom has been the dominant principle in common law jurisdictions since about 1800.
    • This has been modified by family provision legislation.
    • Many civil law jurisdictions have total or partial forced inheritance based on Roman law notions of filial duties.

Historical background

  • Anglo-Saxon England (5th–11th centuries):
    • The cwide is used as a form of will with little or no formalities.
    • All property could be left by will, except that which required royal consent.
  • Norman Conquest (1066):
    • The Normans introduced feudalism and wills for chattels only.
    • Land passed to the heir-at law. The distinction between succession to chattels and succession to land remained until 1837.
  • 1300s:
    • Restrictions on the disposition of chattels (a third by will, a third to the church, and a third to the spouse) begin to disappear.
    • The ‘use’ is recognised in equity as a form of trust to bypass the prohibition of disposition of land by will.
    • Ecclesiastical courts administered testaments and intestacy of chattels under canon law.
  • 1500s:
    • Canon law shifted from the jurisdiction of the papacy to the jurisdiction of the King.
    • Canon law, which included testamentary disposition of chattels, became a branch of English domestic law.
    • Statute of Uses 1535, 27 Hen 8, c 10 abolished ‘uses’ and was unpopular as a result.
    • Statute of Wills 1540, 32 Hen 8, c 1 allowed wills of all land held in socage tenure and two-thirds of land held in military tenure, and required written wills.
  • 1600s:
    • Tenures Abolition Act 1660, 12 Car 2, c 24 abolished military tenures, and allowing all land to be left by will.
    • Statute of Distributions 1670, 22 & 23 Car 2, c 10 provided for distribution of chattels upon intestacy
    • Statute of Frauds 1677, 29 Car 2, c 3 required wills of land to be signed and in writing by the testator, and to have three or four witnesses.
  • 1800s:
    • Inheritance Act 1833, 3 & 4 Will 4, c 106 abolished primogeniture so that land passed on intestacy in the same manner as chattels. It was 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 provided for a common form of will for both chattels and realty. It was adopted in New South Wales by the Imperial Act Adoption Act 1839 (NSW).
    • Probate Act 1857, 20 & 31 Vic, c 77 created a court of probate, removed administration of estates from ecclesiastical courts, and provided that land and personalty were to be administered in the same way. It was adopted in New South Wales by the Probate Act 1890 (NSW).
    • Wills, Probate and Administration Act 1898 (NSW) consolidated the Probate Act 1839 (NSW) and the Probate Act 1890 (NSW).
  • 1900s
    • Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) enabled the court to make provision for spouses and children where a testator failed to do so in their will.
    • Children (Equality of Status) Act 1976 (NSW) provided that all children be treated equally in succession respective of their parents’ marital status at the time of birth.
    • Wills, Probate and Administration (Amendment) Act 1977 created the contemporary rules of intestate succession.
    • Family Provision Act 1982 (NSW) replaced the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) and expanded the categories of persons who could seek provision,
    • Artificial Conception Act 1984 (NSW) introduced presumptions relating to children conceived as a result of various artificial conception procedures.
    • Wills, Probate and Administration (De Facto Relationships) Amendment Act 1984 (NSW) allowed de facto spouses to inherit on intestacy with certain restrictions.
    • Wills, Probate and Administration (Amendment) Act 1989 (NSW) allowed court dispensation of formalities and rectification, abolished the requirement that a will must be signed at the foot of the page, abolished privileged testators, modified the witness beneficiary rule, and permitted revocation on divorce.
    • Property (Relationships) Amendment Act 1999 (NSW) broadened the definition of ‘de factor relationship’ to include same-sex couples.
    • Forfeiture Act 1995 (NSW) allowed a person who unlawfully killed another person in circumstances not amounting to murder to seek modification of the rule prohibiting them from inheriting from the deceased.
    • Status of Children Act 1996 (NSW) consolidated the law relating to ex-nuptial and artificially-conceived children.
  • 2000s:
    • Succession Act 2006 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 the Probate and Administration Act 1898 (NSW).
    • Succession Amendment (Intestacy) Act 2009 (NSW) repealed pt 2 div 2A of the Probate and Administration Act 1898 (NSW) and inserted a new chapter 4 into the Succession Act 2006 (NSW) to deal with intestate succession.
    • Relationships Register Act 2010 (NSW) allowed persons in a registered relationship to be regarded as spouses.
    • Surrogacy Act 2010 (NSW) allowed the court to make parenting orders where there is a surrogacy agreement.

Formalities of death

Births, Deaths and Marriages Registration Act 1995 (NSW)

  • If a person dies in NSW it must be registered: s 36(1).
  • If a court orders registration of a death, it must be registered: s 36(2).
  • Registration is discretionary if a death occurs on an inbound flight or voyage: s 36(3).
  • Registration is discretionary if a NSW resident dies overseas: s 36(4).
  • Discretionary registration is not necessary if the death is registered under a corresponding foreign law: s 36(5).
  • Stillborn children are not to be registered: s 36(6).
  • A doctor who was responsible for the deceased’s medical care immediately before death, or who examines the body after death, must issue a notice of the death to the Registry: s 39.
    • This does not apply if the death is reportable or suspicious: Coroners Act 2009 (NSW) s 39.

Coroners Act 2009 (NSW)

  • All suspicious deaths are ‘reportable deaths’: s 35.
    • This applies to people who have reasonable grounds to believe that a death or suspected death is reportable, but has not been reported: s 35(1).
    • Deaths or suspected deaths must be reported to a police officer, coroner or assistant coroner as soon as possible: s 35(2).
  • ‘Reportable deaths include:
    • Violent or unnatural deaths: s 6(1)(a).
    • Sudden deaths with unknown causes: s 6(1)(b).
    • Deaths in suspicious or unusual circumstances: s 6(1)(c).
    • Deaths without attendance by a medical practitioner during the six months before death: s 6(1)(d).
      • This includes interstate medical practitioners: s 6(2).
    • Deaths that were not the reasonably-expected outcome of a health-related procedure: s 6(1)(e).
      • This includes medical, surgical, dental or other health-related procedure (including administration of anaesthetic, sedative or other drugs), excluding ‘extended procedures’ prescribed in the regulations: s 6.
    • Deaths while in or temporarily absent from a declared mental health facility where the person was resident for the purposes of receiving care, treatment or assistance: s 6(1)(f).
  • Coroners may hold an inquest if it appears that the death is or could reasonably be a reportable death, or if a medical practitioner has no given a death certificate: s 21(1)–(2).
  • Coroners must hold an inquest for:
    • Suspected homicides: s 27(1)(a).
    • Deaths in custody or resulting from police operations: ss 23, 27(1)(b).
    • Deaths with insufficient disclosure of death, identity or date or place of death: s 27(1)(c).
    • Deaths where the manner and cause of death have been insufficiently disclosed: s 27(1)(d).
  • Inquests are not required if it appears to the coroner that an inquest or other official inquiry has been or will be held outside the state: s 21(2).
  • To bury or cremate a body:
    • An appropriate disposal authorisation must be given or the disposal must be authorised by the regulations: s 100(1).
    • A disposal authorisation or authorisation by the regulations must be given to deliver human remains for anatomical or medical research, or to remove non-cremated remains from the state: s 100(2).
    • Under s 100(3), appropriate 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).
    • Under s 100(3), appropriate disposal authorisations for stillborn children include:
      • a notice 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).

The meaning of death

  • ‘Death’ is defined in the Human Tissue Act 1983 (NSW) as the:
    • irreversible cessation of all function of the brain: s 33(a); or
    • irreversible cessation of the circulation of blood: s 33(b).
  • The definition of death in the Human Tissue Act 1983 (NSW) applies:
    • for the purposes of the law of New South Wales; and
    • only where there is a body.
  • At common law, death must be proved as a question of fact either:
    • directly by the production of a corpse; 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 [a] 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 persons who would be expected to have communication with them, a court may presume that the person is dead: Axon v Axon (1937) 59 CLR 295, 404–5.
    • Circumstances may reduce this period: Re Matthews [1989] P 17.
    • If no one has heard of the whereabouts of a person, the court can apply the presumption: Grieve v Registrar General (Unreported, Supreme Court of New South Wales, Young J, 3 April 1997).
    • If a person appears after the presumption has been made, probate or administration must be revoked: Probate and Administration Act 1898 (NSW) s 40C; Ex parte Keegan (1907) SR (NSW) 565.
  • There is a distinction between cases involving a presumption of death (seven years has elapsed) and cases where death can be inferred from the circumstances (circumstantial evidence exists): Re Smith (1975) 6 ALR 123.

Disposal of a 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].
        • This is not the legal position in Queensland: Re Gray [2001] 2 Qd R 35; Baker v 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 rejected by the English Court of Appeal in Yearwood v North Bristol NHS Trust [2010] QB 1 in respect to semen the subject of an action in negligence.
    • The prohibition on property in all or part of a corpse 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 Public Health Regulation 2012 (NSW) reg 69.
    • Organ donation is authorised by Human Tissue Act 1983 (NSW) ss 23–24.
    • Medical research is authorised by Anatomy Act 1977 (NSW) ss 8–8A.
    • Human Tissue Act 1983 (NSW):
      • Regenerative tissue may be removed from an adult person with their consent for the purposes of transplantation or other therapeutic, medical or scientific purpose: s 7.
      • Non-regenerative tissue may be removed from an adult person with their consent for the purposes of transplantation only.
      • ‘Tissue’ includes blood, ova, semen and foetal tissue: s 4(2A).
      • A person of 16 may consent in writing to the removal of blood for therapeutic purposes or for transfusion to another person: s 19.
      • Semen may not be removed from a comatose person without their prior consent: MAW v Western Sydney Area Health Service (2009) 49 NSWLR 231.
        • It may be possible if the person is deceased if the requirements of s 23(3) are satisfied.
        • A 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 or promote, or reduce the duration of the physical or mental health of the person.
  • The executor of a will has the right to custody and possession of the deceased’s body for burial: Williams v Williams (1882) 20 Ch D 659, 665.
    • An action will lie to recover the body, but only for the purpose of burial.
    • See also: Dobson v North Tyneside Health Authority [1997] 1 WLR 596, 600.
  • The 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.
  • Burials in certain areas are prohibited: Public Health Regulation 2012 (NSW) reg 66.
  • Where there is no executor, the next of kin (the person who has the highest right to administer the estate) has the right to bury the deceased: Jones v Dodd (1999) 73 SASR 328 [46].
    • This rule may be departed from where cultural, religious or spiritual considerations apply: [46], [50]–[51].
      • Deviation will only occur in extremely rare cases: Burrows v Cramley [2002] WASC 47 [27].
    • If there is no next of kin, the person in whose house the deceased dies has the right to buy the deceased.
  • A person who expends money on the burial has restitutionary rights to recover expenses from the estate: Smith v Tamworth City Council (1997) 41 NSWLR 680, 693–4; Zannetides v Spence [2013] NSWSC 2032.
  • The right to bur 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 bury the deceased than other relatives: 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, but if the marriage has been short and the deceased had greater long-term connections to the place where their children wish them to be buried, those wishes may prevail: Laing v Laing [2014] QSC 194.
  • If two or more persons have an equal right to buy, the practicalities of an urgent burial prevail.
    • In the case of a child where both parents have an equal right to bury, the court may favour the parent with the closest bond: AB v CD [2007] NSWSC 1474; Joseph v Dunn [2007] WASC 238.
  • 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.
    • This will be repealed upon commencement of the Cemeteries and Crematoria Act 2013 (NSW) and be replaced with new regulations under s 106 of that Act.
    • Subject to those by-laws, the holder of the right to buy has power to decide the appearance and headstone of the grave.
      • The right to bury and attached rights relating to headstones and similar matters are not forfeited if the holder authorises another person to arrange the funeral: Escott v Brikha [2000] NSWSC 458.
      • The reasonable cost of a headstone is recoverable from the deceased’s estate: Zannetides v Spence [2013] NSWSC 3032.
  • The holder of the right to buy cannot exclude friends and relatives of the deceased from expressing affection in an appropriate manner (such as by placing flowers).
    • This is subject to regulations of the cemetery authority: Crown Lands (General Reserves) By-Law 2006 (NSW) cl 26.
      • This will be repealed upon commencement of the Cemeteries and Crematoria Act 2013 (NSW) and be 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 the right to bury.
  • The right to bury is distinguished from the right to bury a person in a particular plot, the latter being 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.
      • This will be repealed upon commencement of the Cemeteries and Crematoria Act 2013 (NSW) and be replaced with new regulations under s 106 of that Act.

Cemeteries and Crematoria Act 2013 (NSW)

  • The Act regulates the interment industry (cemetery operators, funeral directors and funeral funds), and regulates and controls rights with respect to graves.
  • There are two types of exclusive rights to interment, a perpetual right and a renewable right: s 47.
  • Renewable interment rights are granted in respect of remains for an initial term not exceeding 99 years (cremated remains) and 25 years (non-cremated remains), but cemetery operators may grant shorter periods: s 53.
  • Rights may be renewed for periods not exceeding five years upon payment of a prescribed fee, provided the initial period and renewal period does not exceed 99 years total: s 54(3).
  • Cemetery operators may reuse (re-grant) the site and remove memorials (subject to heritage requirements) after two years from the expiry of a renewable right: s 55.
    • The site may not be reused if human remains have been buried in the site for less than 25 years: s 55(6).
  • No interment right is required to scatter cremated remains: s 62.
  • Interment rights may be left by will: s 49.
  • Interment rights may pass on intestacy: s 50.
  • Interment rights may be held jointly and pass to the survivor: s 51.
  • Interment rights may be transferred, but transfer may be refused if a cemetery operator believes it would tend to create a monopoly or encouraged dealing in interment rights: s 60.
  • Perpetual interment rights may be revoked by the cemetery operator if unexercised within 50 years of being granted: s 52.

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

  • The executor, a person entitled to administration, or a third party who orders the funeral is entitled to reimbursement of reasonable funeral costs from the estate.
    • What is 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.
    • Only a reasonable amount can be recovered even if the funeral is extravagant.
  • A trust in the will for the maintenance of the testator’s grave will not be valid as a private trust if established 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.

Order of death

  • At common law the order of death had to be proved by evidence.
    • Difficulty arose in near-simultaneous deaths such as in the case of aeroplane crashes.
  • If the order of death is uncertain, it is presumed that the persons died in order of seniority with the youngest dying last: Conveyancing Act 1919 (NSW) s 35.
    • This applies for ‘all purposes affecting the title to any [real] property’.
    • To apply, it must be uncertain on the evidence as to the order of death: Re Plaister; Perpetual Trustee Co v Crawshaw (1934) 34 SR (NSW) 547.
  • The seven year rule is incompatible with the Conveyancing Act 1919 (NSW) because it 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.
    • The Conveyancing Act 1919 (NSW) requires uncertainty of the order of death, but the circumstances of death must be known.
      • The circumstances of each death does not need to be the same: Hickman v Peacey [1945] AC 304, 314–5.

Survivorship

Succession Act 2006 (NSW)

  • 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: s 35.
    • This applies only where the will has been made after 1 March 2008.
  • A person must survive the deceased by 30 days in order to inherit where the deceased dies intestate: s 107.
    • This applies only where the deceased died intestate after 1 March 2010.
  • The Act does not alter the operation of Conveyancing Act 1919 (NSW) s 35, but does remove the consequences of determining the precise order of death.