THE LATEST PROBATE PERTH NEWS IN PERTH

Stay up to date on the latest family law and probate news for the Perth area with Biddulph & Turley. Check out the news stories below to learn about current cases and changes to the law.

You have possibly come to this page because you have received a requisition from the Probate Office at the Supreme Court of Western Australia. You should start (if you haven’t already done so) by reading the frequently asked questions of the Supreme Court webpage: https://www.supremecourt.wa.gov.au/R/requisitions.aspx

Note that you usually need to provide any response in the form of an affidavit. A precedent affidavit is available from the Court’s website at the same page: https://www.supremecourt.wa.gov.au/R/requisitions.aspx.

Examples of common requisitions (and how to answer them) are set out below:

This might occur, for example, where the will says: “If my (wife) survives me by 30 days I appoint her as the Executor of my will but if she does not so survive me I appoint my son John Smith”.

The affidavit in response should say:

“By the said will, the Deceased appointed his wife (Name of wife) as the Executor if she survived him by thirty days. The said (name of wife) died on the ___ day of ____.”

In the event of the said (name of wife) not surviving the Deceased by 30 days, he appointed myself, the deponent as the executor.”

This can arise in a variety of circumstances, for example:

This seems like an obvious question and usually has an obvious answer: in the State where the Deceased person lived and had assets.

However, a couple of recent cases across my desk show that it is not always that simple. What happens when a Deceased person has properties in two (or more) different States? What happens when the Deceased person has a property in one State and bank accounts in other States or overseas? What about the situation when a Deceased person had property in one State but was living in another State perhaps (even renting) and has no assets in the State he or she was living in?

A critical question is where was the Deceased person domiciled? That is to say, where did he or she usually live? If he or she lived in, say Western Australia, then that is the place of domicile and that is where any claim should be lodged.

Possibly 99% of the time there is no difficulty in determining where a person was domiciled. A person going on holiday is still domiciled in the State where they usually live. The short question might be “where does the person call home”? However, if might be a more difficult question to answer if the person was in the process of moving from one State to another. They might still own a property in the State they are leaving with the intention of buying a property in another State.

A statement of the law can be found in the case of Blackett v Darcy [2015] NSWSC 65: 

“12. The test is quite simple to state. A person retains their domicile of origin unless they adopt a domicile of choice which adoption requires both animus to acquire a new domicile and the factum of being present in the country of the new domicile. As is put in Nygh on Conflict of Laws in Australia 7th edition (Lexis Nexis, Australia, 2002) [13.18]: 

See Hyland v Hyland (1971) 18 FLR 461 (NSWCA) and the Domicile Act 1982 (Cth) s 10. 

13 The question is a question of fact. A person who has left the State for the purpose of work with family remaining in the State is in one plight. The Court would need to consider whether that person intended to stay in the new State indefinitely. However, where one has a case of a person selling up his residence in New South Wales and buying a new residence in Queensland indicating that he intends living in Queensland, then even though he was only in Queensland as a permanent resident for two weeks, there is sufficient evidence to find that on the balance of probabilities he had acquired a domicile of choice in Queensland as at the date of his death and I so find.”

A good summary of the overall position can be found in Taylor v Farrugia [2009] NSWSC 801 at [26] where his Honour said in relation to a testator who died in Malta leaving real and personal property both in Malta and New South Wales: 

"Both Salvatore and Emanuela died domiciled in Malta, leaving real and personal property both in Malta and in New South Wales. In those circumstances the relevant law is, as stated by Scholl J in Re Paulin [1950] VLR 462 at 465, that in connection with the application of testator's family maintenance legislation, first , the Courts of the domicile alone can exercise jurisdiction under the testator's family maintenance legislation of the domicile in respect of movable and immovable property in the place of domicile; secondly , the Court's of the domicile alone can exercise such jurisdiction in respect of movable property of the deceased outside the place domicile; but thirdly , Courts of the situs alone can exercise such jurisdiction in respect of immovable property of the deceased out of the place of domicile, and Courts of the place of domicile cannot exercise such jurisdiction [see also Pain v Holt (1919) 19 SR (NSW) 105; Re Sellar (1925) 25 SR (NSW) 540; Re Donnelly (1927) 28 SR (NSW) 34; Re Osborne [1928] St R Qd 129; Re Butchart [1932] NZLR 125, 131; Ostrander v Houston (1915) 8 WWR 367; Heuston v Barber (1990) 19 NSWLR 354; Balajan v Nikitin (1994) 35 NSWLR 51]”

Summarising that into a practical chart the position is:

These comments are, of course, of a general nature only and you should seek professional legal advice with respect to your particular situation.

If you die without a will, you are said to die ‘intestate’. In Western Australia, your estate will then be divided according to Section 14 of the Administration Act. This currently provides that, where you died leaving a spouse (including a de facto spouse) and children, the spouse gets the first $50,000 and 1/3rd of the remainder of your estate and the children get the remaining 2/3rds divided equally between them. If there are no children, then the spouse (including a de facto spouse) receives the first $75,000.00.

The figure of $50,000 was set in 1976 and no provision was put in place for that figure to be updated from time to time.

In 1976 the median price of a house in Perth was $33,000.00. Effectively, the first $50,000.00 that the spouse received therefore included the house and more.

It has taken nearly 50 years, but the rules are about to be amended (see: Administration Act Amendment Bill 2018) so that the spouse (including a de facto spouse) will now receive the first $470,000 (where there are children) and 1/3rd of the remainder and more than $700,000 where there are no children. In addition, the legislation will have a built-in formula to increase the amount automatically from time to time.

The Median Price of house in Perth in 2021 is now (September 2021) around $596,000.00.

So, the amendments basically seek to reinstate the position as it was in the 1970’s.

The application of the intestacy provisions are not without their difficulties, particularly where the deceased person has separated or divorced from their first partner, entered into another relationship and has children from the first relationship. A ‘de facto’ must have been in a relationship for two or more years before the death of their ‘partner’ and be living with them immediately before their death. There is a lot of uncertainty as to whether a relationship that has existed for two or more years constitutes a ‘de facto’ relationship. Parties often “Live together Apart” and it is often a matter of subjective opinion whether parties are ‘just friends’ or ‘living in a marriage like relationship’.

Disputes often arise between the adult children of the Deceased and the alleged ‘de facto’, particularly where the ‘de facto’ will almost certainly taken any superannuation death benefit.

Much of the heartache and expense of a dispute could be avoided by the simple expedient of making a will and not relying on the intestacy rules at all.

Generally speaking, if a person who is left money or a share of the will maker’s estate dies before the will maker, then the gift fails and the share is divided amongst the other residuary beneficiaries named in the will.

To cover this, most wills have clause in them that provide for a ‘substitutional gift’, setting out what is to happen if a beneficiary has already died before the will maker. An example clause is ‘if a child of mine dies before me leaving children who attain the age of eighteen years then those children shall upon attaining the age of eighteen years take the share that their parent would otherwise have taken.’

In Western Australia, Section 27 of the Wills Act provides that if a child of the Deceased dies before the Deceased leaving children then those children take the share that their parent would otherwise have taken. Importantly, this ‘statutory substitution’ provision only applies unless the will expresses a contrary intention. An example of a clause expressing a contrary intention is: “to divide my estate equally between those of my children who survive me. Adding those three words makes it clear that you only intend the children who survive you to benefit from your estate.

On the other hand, if your will simply said “to divide my estate between my children” and one or more of your children died before you, then Section 27 would operate each of those children’s children would take the share that their parent would have taken.

It should also be born in mind that ‘children’ does not include step children. So a provision that said “to divide my estate between by partner’ s children” would not be covered by Section 27 and if one of your partner’s children died before you then their share would go to the surviving children and not any children of the deceased child.

If you wanted someone else to take the share or gift intended for a person who dies before you (for example their spouse), then the clause in your will should be drafted accordingly. For example: “If a (name of child) dies before me then I give the share he/she would have taken to (name of spouse).”

Care should be taken here. A clause which reads “If a child of mine dies before me leaving a spouse who survives me, then that spouse shall take the share that the child would otherwise have taken” might cause difficulty if, for example, the child and the spouse separate or divorce before you die (and putting aside the difficulty of whether a ‘spouse’ includes a de facto relationship).