A blog by Hal Curwen-Walker for people concerned about the protocols, laws, quirks, humour, behaviours and anything interesting which relates to wills, contested estates, dying and death with an additional focus on the fraudulent use of powers of attorney, straight out forgery, duress and coercion.
Amendments to the legislation governing Powers of Attorney came into force last year. Amongst other things these amendments provide for compensation to be payable to someone whose attorney abuses their authority.
Compensation is payable even if the attorney is convicted of a criminal offence. Compensation is payable even if the principal (donor) has died and also even if the Power of Attorney document has been revoked or is invalid.
An application for compensation must be brought by the Principal, an attorney Administrator or Executor of the Principal or any other person that VCAT is satisfied has a special interest in the affairs of the Principal.
All well and good of course if the attorney has pumped all of the funds through gambling machines.
In Rogers v Rogers Young [2016] WASC 208, Master Sanderson considered the proper construction of a ‘homemade’ will. The judgment commences:
“On numerous occasions when dealing with so-called homemade wills, I have observed they are a curse. Homemade wills which utilise what is sometimes known as a ‘will kit’ are not much better. This case proves the point. The disposition effected by the will is not complicated and no doubt the testator had clearly in mind what she intended to achieve. But the way the will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.”
The case is accessible here: http://decisions.justice.wa.gov.au/Supreme/supdcsn.nsf/PDFJudgments-WebVw/2016WASC0208/$FILE/2016WASC0208.pdf
For some commentary, and mention of Re Crocombe [1949] SASC 302, see here: http://rdwilliams.com.au/the-curse-of-the-homemade-will-rogers-v-rogers-young-2016-wasc-208/
Home made wills, even with the assistance of a so called "Will Kit", cause more litigation and grief than just about anything else. Steer away from them.
Wills are not as expensive as you might think if done through your local solicitor and you have the added peace of mind of knowing it's valid.
A Canberra court has awarded costs to a woman who disputed her mother's will on grounds it left her sons twice as much money as her daughters under Muslim rules of inheritance.
Fatma Omari successfully overturned the will of her late mother in 2012 after launching a bitter and protracted legal battle against her brothers, Mohammed and Mustapha Omari, in the ACT Supreme Court. Islamic law says sons should inherit twice as much as daughters. Photo: AP
As one of five daughters, Fatma Omari initially received just a half share of the estate according to the will, while her three brothers received a full share each.
She argued the will had been invalid as their Turkish-born mother, Mariem Omari, had been suffering dementia and hadn't understood what she had been doing when she signed the document in the presence of her two sons in January 2002.
Earlier that year, the brothers had been appointed their mother's guardians, citing medical reports that showed Mrs Omari had "severe cognitive impairment".
Mariem Omari, who was illiterate, signed the will with a thumb print after it was explained to her in her second language of Arabic.
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Her daughter took the matter to court after her mother's death, aged 81, in 2009.
In a decision handed down in 2012, then Master David Harper said he believed the brothers arranged for their mother to execute the will knowing she didn't understand what she was doing or what the effect of the will would be.
He accepted the brothers generally believed it was their mother's duty, under Islamic inheritance law, to leave one full share to her sons for every half share left to her daughters and that she would have made her will in line with those principles if she had drawn it up earlier.
Master Harper believed the brothers thought they were doing the right thing in arranging for their mother to sign the will and said he didn't think either acted out of greed.
The court ruled Mrs Omari died intestate, saying the document was void because the brothers knew their mother didn't know what she was doing and was in no mental condition to sign it.
Her will was handed to the ACT Public Trustee to execute.
The case returned to the ACT Court of Appeal this month after the brothers appealed Master Harper's decision to refuse an application for their court costs in the matter to be paid out of their mother's estate.
The pair argued they honestly believed their mother understood the nature of the will she signed, and that, as a devout Muslim, she would have ensured any will she had drawn up followed Islamic principles.
In a decision published on Monday, the full bench of the ACT Court of Appeal upheld the Master's finding that the brothers court costs shouldn't be paid out of the estate.
"The belief of the [brothers] that they were implementing their mother's wishes as a Muslim consistent with Muslim rules of inheritance did not alter the fact of the appellants' awareness of their mother's dementia and consequential lack of testamentary capacity," it said.
It found the brothers' arguments that the will should be distributed in line with Islamic law, and the fact their sister should comply with the will because she took part in Islamic burial rites for her mother, were irrelevant.
That was because the court's previous decision had been solely about their mother's capacity to make a will, the decision said.
The court dismissed the appeal, ordering the brothers pay Ms Omari's court costs. It said a $701 filing fee should be paid from the estate.
Recently the Supreme Court handed down a decision in relation to a claim against an estate with assets and liabilities at $4,564,220.36, which was comprised primarily of 3 properties. Under the deceased's Will, the 3 properties were to be provided to the deceased's 2nd wife (being the Executor and Trustee appointed under the Will), 1st daughter from his previous marriage and 2nd daughter from his previous marriage.
The deceased's 3rd daughter from his previous marriage was to receive a lump sum of $500,000 or such lesser amount as remained once the estate expenses had been paid. If the sum remaining exceeded $500,000, such additional amount was to be divided equally between the Trustee and the deceased's 3 daughters.
Following the grant of probate, the 2nd daughter made a Part IV claim seeking further provision. The Trustee notified the 3rd daughter of this and invited her to attend the mediation. However, the 3rd daughter simply requested that, if her share of the estate should fall below $500,000, she would require all document that affected that amount.
As a result of the mediation (which was not attended by the 3rd daughter), terms of settlement of were agreed where the 2nd daughter would be paid a further $250,000 (inclusive of legal costs and interest). The terms did not specify which part of the estate the sum would be paid from. The Trustee informed the 3rd daughter of the settlement and, several weeks later, paid a total of $250,000 from the estate to the 2nd daughter.
The 3rd daughter objected to the terms of settlement and the payment of the $250,000 to the 2nd daughter.
Having considered the authorities and circumstances of the case, the Court held that:
A trustee may settle a Part IV claim, however, the trustee must then either seek consent from any affected beneficiaries, or otherwise seek orders from the Court to give effect to that settlement;
The 2nd daughter was not liable to repay to the estate the amount of $250,000 that she received because she could not have known and did not know of the 3rd daughter's position on the settlement at the time of mediation. Further she was not an overpaid beneficiary or a volunteer, rather, she received that sum in her capacity as a third party claimant.
It would not exercise its discretion to excuse the liability of the Trustee. Although the Trustee acted honestly in her decision to compromise the Part IV claim, she did not act in good faith. The Trustee acted in a position of conflict, and without properly considering the 3rd daughter's interests as a beneficiary of the trust.
The Court ordered that the Trustee was personally liable to reimburse the estate the amount of $250,000.
Whilst alive an increasing number of people establish and develop comprehensive identities in online venues such as Facebook, LinkedIn, Google, Instagram and the like. Huge quantities of material pertaining to the deceased might also be located in "cloud based" storages not duplicated on any hardware owned by the deceased person. Sometimes these identities include numerous photographs of the deceased and family which are not stored elsewhere. They can also comprise a very interesting and useful chronology of certain years of the life and times of a deceased person.
Sometimes the need is felt to close these pages down after someone has passed away. The problem that is often occurring is that no one in the family can work out what online material the deceased person established and maintained and, even if they know of it, they can't access it because they don't know the required passwords, without which Facebook and the like can be extremely unhelpful, not to mention altogether inaccessible. Similar problems can be experienced when certain bank or other accounts or share trading sites can only be accessed with accurate client identification numbers and passwords.
Sometimes no one can even obtain access the deceased persons personal computer, Ipad, Iphone or other device which might contain billions of valuable Bytes relating to the deceased's life and family. One client of mine recently solved the problem by simply immersing the computer in the dam at the rear of the property for a couple of days. Whilst this, for practical purposes, certainly may have worked in relation to the material actually stored on the computer itself, it took a good deal of explanation before the client could understand that huge volumes of material probably remained undisturbed online. I also thought it was a shame that valuable material regarding the deceased might have thus been lost forever.
More and more wills, or other collateral arrangements, will have to deal specifically with these issues. Putting actual passwords in a will document can be problematic because it is normally recommended practice to alter passwords regularly. Putting a list with the will might work if that list is actually replaced when the passwords are altered. A direction in or with the will directing an Executor to the location of various passwords might work as long as the direction is adhered to and the list is kept current. Giving someone else a comprehensive list of all of your passwords is not normally recommended for obvious reasons.
More often than not the solution will depend upon the individuals personal circumstances. It is certainly worth knowing that this problem is becoming quite widespread and more common each year. Give some thought to what would happen to all of your digital material in the event of your death and to what might be done to alleviate the situation.
In a recent decision at VCAT, the Tribunal referred to a decision of the Western Australian State Administrative Tribunal in finding that VCAT does in fact have the power to make an order in relation to various acts by the holder of a power of attorney after the death of the protected person / giver of the power of attorney.
The attorney, no doubt seeking to avoid an examination of his conduct of the deceaseds affairs whilst the deceased was still alive, contested the application saying that VCAT's powers ceased when the giver of a Power of Attorney died.
Two children of the deceased who had been deliberately kept in the dark by their Brother applied to VCAT for an order that all account statements and accounting be produced by the attorney up until the date of death.
VCAT found that it had power to make such an order for the period up until the date of death of the protected person / donor of the power of attorney, and it did so.
In a recent decision at VCAT, the Tribunal referred to a decision of the Western Australian State Administrative Tribunal in finding that VCAT does in fact have the power to make an order in relation to various acts by the holder of a power of attorney after the death of the protected person / giver of the power of attorney.
The attorney, no doubt seeking to avoid an examination of his conduct of the deceaseds affairs whilst the deceased was still alive, contested the application saying that VCAT's powers ceased when the giver of a Power of Attorney died.
Two children of the deceased who had been deliberately kept in the dark by their Brother applied to VCAT for an order that all account statements and accounting be produced by the attorney up until the date of death.
VCAT found that it had power to make such an order for the period up until the date of death of the protected person / donor of the power of attorney, and it did so.
