Succession Law - With Adrian Corbould
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Chris Patterson 00:06:
Hello and welcome to The Law Down Under Podcast with barrister Chris Patterson. We will give you insights into the law in New Zealand and Australia, its application, and the law's future. Each episode features a new guest who will inspire interest in the law and give you a greater understanding of the legal issues that helped shape our justice system here down under. We thank you for tuning in and enjoy the podcast. Joining me on this episode of the podcast is Adrian Corbould. He is a partner and an accredited specialist in contested wills and estates, heading the team at Tom Turnbull Hill Lawyers in New South Wales. Adrian also provides CPD (continuing professional development), seminars for legal practitioners, and was paneled on the Law Society of New South Wales accredited specialist for wills and estates assessment committee. He has extensive experience in wills disputes, contested wills, challenged wills, family provision claims, and hearings in inheritance disputes, equity, and probate divisions of the Supreme Court of New South Wales. Adrian is listed in the Doyle's guide as a leading wills and estate litigation lawyer for New South Wales in the years 2018, 2019, 2020, and 2021. Notably, Adrian had primary carriage for the successful appellant in the landmark New South Wales Court of Appeal contested family provisions case, the wills case of Nicholas and home. This is one of the most frequently cited cases involving adult child claimants and estate disputes.
Adrian Corbould 02:10:
I'm Gen X, pretty much everything about the '80s. I grew up with the kids from the '80s. If that helps give you any. I'm about the same age as Drew Barrymore and those kinds of cohorts.
Chris Patterson 02:27:
What were you listening to in the '80s? Were you a retro fan?
Adrian Corbould 02:35:
Well, I think for my first, I got a cassette. I think you'll have to have some links in the press to explain to people born after the ad what a cassette player is and what a cassette is and things like that.
Chris Patterson 02:51:
But I think, yeah, I'm going to want to get a bus with a single. I did graduate to get blasted, but I started off with a single cassette with a single speaker, and I think I got "1984 Comes Alive." And that had the theme song from Ghostbusters and all the top hits of that year.
Adrian Corbould 03:44:
Yeah, unfortunately, New Zealand lost a few of them, including the formation of Crowded House, which has proudly claimed to be in a smooth band. Every New Zealand or what sights? It's certainly a huge fan. I've got every copy of Footrot Flats that exists, the whole series. So I do love New Zealand culture. But yeah, I'm an '80s child. All that went with that.
Chris Patterson 04:20:
Fantastic. And now look, do you have your own children? Do you have kids?
Adrian Corbould 04:25:
Yes, I do. I've got two teenage children going to high school. So yeah, and they all love it. It's funny how they all love it because we've changed worlds of a lack of tangibility. So everything's iPod. Well, they got rid of the iPod, but everything, they don't release albums like they did. That was in the '80s; it was a big thing when an album was released.
Chris Patterson 05:39:
Yeah, although there was a bit of a renaissance back to buying vinyl. Have you still got your old mixtape and vinyl collection?
Adrian Corbould 05:48:
I think I've got some cassettes up; I bought some Foley, I went even further back. I bought a gramophone with 78. So now I don't; my sister had a vinyl record plan.
Chris Patterson 07:36:
Look, I thoroughly agree, and you've been the recipient of communication where someone says to you, hey, Adrian, what are you ignoring me, you haven't responded to my email, and your response is, you made the email, you seem to be an hour ago.
Adrian Corbould 07:54:
And then getting the call. So I've actually in some instances, I use that delay Send feature. So that email goes out at five o'clock, which is like what we used to do was made with a post, it would go out at the end of the day and the client or the other side or whoever it was would get it maybe the next day, maybe three days later, but just gives them some time to get it, absorb it, actually read it, not just receive it and then pick up the phone one minute later and say what does this say? As I think it develops that Pavlovian response of not digesting things properly. Because as you'd appreciate, we lawyers, we take a lot of time to get things just so all we should do get right the correspondence so it's digestible and understandable. And if you just send that out to whether it's an opposing side or a client, and they get trained as it were to have a knee-jerk reaction to respond and call. And when you compound that over with all the other 1000s of files that you have, are you effectively serving your client properly by not letting them do as was done in previous years, but to a much lesser extent, letting them receive it, absorb it, digest it, think it over, and then call you and discuss it, rather than this seems to be the atmosphere of everything now, everything has to happen now, which would lead to probably read all the time. Burnout, stress of lawyers stress of everyone is, I just think there's just too much condensed too quickly and it's come in a meteoric way in a very small time. When I think back of when I would send a letter, and it would take three days for the letter to get there and then the lawyer would have to read it. They would dictate an advice to their client, send that to their client, the client would get it, read it, digest it, then have a conference lawyer would write a letter, send it back. And it would be a better to be a two-week turnaround, which might sound like a long time. But when you're compounding that with the 50 other quality of God, I think you need. And it's benefit for everyone to just stop and not rush. I love saying Haste makes waste. There's so much waste done and having to fix up problems that are done through haste through just people firing off emails, just haphazardly, not composing them, getting everything in the one email, whether they just fire things off pepper pot. And so throughout your day, you'll be doing something walk away, come back five minutes later, there's another 10 emails. In the end, they could be all from the same person or from the same lawyer. Whereas I think we just need to stop and think, can we contain what we want to communicate in one message? Maybe, if it's not a time-sensitive matter, wait until the end of the day, because as I find every day, I'll send something out at 10 o'clock. And then the other lawyer will write in and say, Oh, by the way, this has changed. We now agree to that. But then you'd rather send another thing at 11. Do that change that 12. If you hold it back to the end of the day, sometimes it can be a benefit to say okay, well, client throughout the day, these developments have happened. You think like a Reader's Digest? Yeah.
Chris Patterson 11:44:
Do you think, Adrian, in some ways, maybe clients would appreciate possibly even getting a letter for the novelty of it all? There they actually there's a letter at your letterbox.
Adrian Corbould 11:58:
I opened it because of yours. I've done my post for 20 years. And it was and I can't. And it's instinctive to open a letterbox when I come home. And of course, invariably, if it's anything, it's a bill, but even then, even then, I don't see them anymore. Everything's emailed. So yeah, to get something tangible, like a letter? Like, I'd be like, really? That'd be like Charlie, opening the chocolate and getting a gold ticket.
Chris Patterson 12:32:
Particularly if that's good news.
Adrian Corbould 12:36:
Yeah, not an invoice not. Here's a bill, that's not much of a goal, a ticket is something which I think that's so even say, marketing, we can't just, I couldn't tell you how many times I'm just constantly unsubscribing to all these. Because he can't buy anything without giving you giving the vendor all your details. And that then immediately you get on their list, and they're constantly sending you surveys, and how did we do and which I understand?
Chris Patterson 13:11:
Yeah, well, look, you've raised some really, really good points. And for those listeners out there that are practitioners, How about how about we have the Adrian cobalt challenge, which is, you know, aim to send at least one actual letter to someone who's important to you once a month just to just to keep the art of letter writing going.
Adrian Corbould 13:35:
It's amazing show.
Chris Patterson 13:38:
That was a challenge.
Adrian Corbould 13:40:
I think, I think so we have I have in my team. There's a Lady Mary, who she's an earlier generation from me, and she really appreciates and maintains that she'll give cards during certain events, good or bad. And it's such a difference, of course. And when you receive something tangible from someone, thinking of you or it's so unusual, and so pleasant, and that sparks all the all the endorphins and whenever all the other good chemicals, because it's just so unexpected and rare. So yeah, that's a good mindful thing. One, one hard copy document. a month. Sounds good.
Chris Patterson 14:28:
That sounds like a good chance. Now we're going to do a deep dive into wills and succession and estates in a second. But actually, before I do just cut two quick things. One, as did you pick up on the recent news feed that the French are looking at passing laws, making it unlawful for an employer to send to an employee an email after hours when they're not working? Have you ever picked up on that one?
Adrian Corbould 14:52:
I have I have seen that and that's that is a constant like text messages and things like that. I'm not averse. To people sending anything at any time, as long as there's no expectation that the employee has any expectation to the reading or the open to responding, because if you send me something after hours, it's just gonna sit in my inbox. And till I look at it the next day at eight o'clock. So that's not going to harm me. But I guess it's where the culture is, where there's an expectation of, you know, you keep your notifications on at all times. That's bad, because then you never turn off. You never leave your job. And I think you have to leave, whether it's mentally and physically, particularly, work from home people that's more prevalent,
Chris Patterson 15:48:
Easier said than done. Yeah.
Adrian Corbould 15:55
I mean, that's the benefit of that delay Send feature, which a lot of people don't know about. You just draft your email and use the delay send option until you send it at a civilized hour. So it doesn't look like, because I know, I've sometimes woken up at 2 am, can't sleep, and I think, "I'll send out all these things that are just swirling around in my mind." But then when you think about it, if you get an email from a lawyer at 2:30, you either think, "Well, that's odd," or, you know, "What's going on in their life that they feel they have to send something at 2:30?" So I think if you do that, you might want to adjust the send time so it looks like you're an actual human.
Chris Patterson 16:40
Great advice. Just let's dive a little bit more into your background. Are you a New South Welshman? Is that where you grew up?
Adrian Corbould 17:06
I've got to say, I'm very poorly traveled. If you count the number of days I've been out of New South Wales, it's maybe two. I've been in New South Wales my whole life.
Chris Patterson 17:11
And what was your alma mater? Which law school did you go to?
Adrian Corbould 17:16
I grew up in rural New South Wales on a cattle farm, went to a public school there, and then to the University of New England in Armidale. That was a double degree in accounting and law. After I finished uni, I went and became an accountant for three years and realized very quickly that was not my area. I'm glad those people exist, but it didn't grab me. I'm always refreshed when I meet graduates who have done an arts degree because in the '90s, everyone was pushed towards commerce-law. I think there needs to be more of a return to the humanities and arts.
Chris Patterson 19:08
You raise a good point. In the United States and Europe, law is a postgraduate degree. You have to do an undergrad first. What are your thoughts on that?
Adrian Corbould 19:58
I think starting kindergarten so young influences this. Kids are pushed into school early, and it trickles down to people going to uni at 18. It's especially challenging for fields like medicine where at 17, who really knows they want to be a surgeon?
Chris Patterson 21:05
We grew up watching La Law in the '80s, which shaped our perceptions of law. But in reality, I never once heard a six-minute unit, a billable hour, or discussions with the Office of the Legal Services Commissioner during my time at uni.
Adrian Corbould 21:27
That's because we grew up watching La Law where everything was resolved in 30 minutes. Real law isn't like that.
Chris Patterson 21:48
Let's do a deep dive into the Law of Succession, the body of law governing how a person's property is distributed when they die. Someone has passed away, maybe it's a tragedy or an expected death. From a legal standpoint, as a succession lawyer, what's the first thing that engages?
Adrian Corbould 23:07
From a legal point of view, when someone dies, you need proof of death. So, to even start doing anything, you need a death certificate, which the GP or some medical officer will issue to the next of kin of the deceased. The next of kin is that person who is most closely related. In that order, it's generally spouse, de facto, child, and so on.
Chris Patterson 23:40
It's very... when would this issue of proof of death be at issue? Like when would that pop up? Like, you know, presuming the bar all the time, so in the area, the area, by so even though I do wills and estates I do, my team does exclusively contested estates. So that's where survivors of a deceased person are disputing various aspects, either their will or distribution of their estate and things like that. And what is the common... what the highest point is is locating the deceased last will. Because someone can make multiple wills over their lifetime, or they can make no will at all and die intestate, meaning no will.
Adrian Corbould 24:20
So the survivors of that deceased person, the will, nominate who their executor is. And the executor is the person who administers everything to do with the deceased's death and their assets.
Chris Patterson 24:48
I'm just gonna jump in here for one second because I do want to take you back to this before we leave it behind. So proof of death. Okay, we've got a family member, they're old, they've been expected to pass away for some time. We get the news they've passed away. I think you mentioned that, you know, a GP is gonna certify them as being dead. And that all makes sense. But can you come across a scenario where proof of this for a period of time at least was... wasn't resolved? And that issue hadn't been seen yet?
Adrian Corbould 25:25
Yes, there's issues where people are found. So not everyone gets the nice cozy story of they die in an aged care facility with all their family around them and they pass over. There are instances where people are found dead, often weeks later, either because they don't have any close visiting family members. There's also issues of consequence where I was talking about the executor that is important because the executor has carte blanche to control over the funeral. And, as you'd appreciate, a funeral has to happen quite quickly after someone's death, or generally. There are instances where the executor is disputed, and the poor, deceased testator remains frozen in a mortuary until that issue is finalized. So it can be determined who is the executor and who gets to carry out the general processes. And there was a case only.
Chris Patterson 26:39
Okay, so just, just, just so before we move on from there, let me, let me give you a real-world scenario. Now, many years ago, you might recall some young adventurer, and I really admire that he gave it a go, and it obviously ended tragically. But he decided that he was going to jump on a kayak on his own and kayak from Australia to New Zealand. And from what I understand from the media reports is that he must have got within sight of the southwest coast of South Island because there was a distress signal sent or something, and that they never found his body, but they found the kayak. So in that situation, you know, what happens?
Adrian Corbould 27:29
Yeah, that's a very interesting and very relevant issue of proof of death because there have been instances of people faking their death to start a new life and also for insurance fraud. Generally, whether to issue a death certificate, if there's a body and the body can be identified, no problem. Where there's no body, where there's no human remains, then the executor of that deceased person generally has to get a court order putting to bed all possibilities that the deceased is dead. So in that instance, that instance is different from if, say, he just disappeared if he just went off the face of the earth. If he said, "I am taking a kayak from New Zealand to Australia or vice versa," and people observed him do that, and there was some kind of ongoing footage of that. And then he went missing, it's like a plane trip, like the terrible thing with the Malaysian MX three. So there's one, so no bodies were recovered yet. There had to be a court case to determine they didn't float off onto like I did a video recently on Tom Hanks' Cast Away, yeah, so he was flying from somewhere in the USA to some other country where you had to fly over the Pacific Ocean. The GPS switched off for some reason, the plane crashed, and he was on that island for four years in Fiji. He found some theoretical island there. And then he was found, rescued, came back to America. In his absence, his fiancee had moved on. She had married, had children. My issue was someone would have had to have deemed him dead. They wouldn't have just gone, "Oh, well, maybe he'll even light on. Maybe he'll knock on the door one day." So, since that plane was going from x to y, and that plane was never landed, that wouldn't have been that hard to prove to a court that all souls were lost.
Chris Patterson 30:17
When you say proof to a court, and in New South Wales, that's the current Supreme Court. There's a court.
Adrian Corbould 30:26
There is a Coroner's Court, but it's in issues of estates. It's the Supreme Court. A Coroner's Court generally wouldn't need a body. I'm not sure, but I don't think, in all the cases I've read, the Coroner's Court doesn't get involved where there are missing persons. And there was a case last year where the person was missing for 20 years. She went to China, told her GP, told everyone, "I'm going to China," never got the... and the fact that when her child had a dispute as to who received what under her estate, but before they could be determined, a judge had to order that she'd actually died. Because what would happen, let's say, let's say I just went for a trip for four years, didn't tell anyone, I came home, and my wife had sold all my assets, moved on the fight, well, hey, I wasn't dead. So that makes it harder for a court to make that determination. Generally, seven years, if someone doesn't come back in seven years, that's the thumb rule time that someone has died, and they can make an order that they've passed away. But it's different where there are, say, ships, planes. For the kayaking from x to y. But all other instances, you've got to go to an insane level of proof to establish that that person has died when there's no body. So that's like tracking passports, interviewing people that they know, and putting that effort or evidence to a judge to make that conclusion.
Chris Patterson 41:52
You know, I had a really sad case many years ago where a young woman came in to see me and she had gone through an absolute tragedy. Cut a long story short, her mother had moved to the UK, married an Englishman that she had met while she was somewhere else in the world. And this guy, unbeknownst to my client, all the authorities, or anyone else, had killed the mother in the house, then chopped her up, dissolved most of the body, kind of tried to dispose of it down the public drain system. Anyway, the police did a fairly detailed forensic analysis of the crime scene, were unable to produce a body, but there was enough evidence in the English Coroner's Court to reach a conclusion that he had killed her and disposed of the body, and she was dead. And then just to add another complexity, and quite relevant to this podcast, as her will was, or the last will was one that she had entered into many years beforehand, and before she married her first husband. And it was the second husband that killed her. And then, of course, we've got this strange law here in New Zealand. And actually, I'll ask you whether or not it's the same position in New South Wales, where if you enter into a will without expressly saying it's in contemplation of marriage, it's deemed presumptively to be invalidated. So it became an intestate situation. Yeah. And he states, situations, and so we had to navigate our way through all of that tragedy, but we got there in the end. But shocking case. Shocking.
Adrian Corbould 43:13
Is it the same, actually? Just jumping on that. I'm jumping way ahead. I've got a couple of things I wanted to ask you further on, but I'll do this now, only because you've raised a couple of concepts here. You've raised estates, wills, and executors. And let's start off with, you know, in a status what what what is actually in an estate?
Chris Patterson 43:30
And the estate generally, and again, I'll always be talking from a New South Wales perspective because that's the jurisdiction I act in, someone's estate is all the assets they own as of the date of death that is within the deceased's control as of the date of death and after death. So generally, bank accounts, real property, houses, apartments, things like that, any items, chattels, personal items, shares. It does not. So that's an estate.
Chris Patterson 43:59
Okay, can we ask, where does it become murky?
Adrian Corbould 44:02
Alright, where it becomes murky is superannuation, which generally does not fall into someone's estate. There's mechanisms within superannuation where the beneficiaries are nominated in documentation directing the trustees of that superannuation fund to pay, which is separate to the will. So superannuation generally, again, the asterisk does not fall into someone's estate. And also jointly-owned property. So most couples, presumably, would own their home that they live together jointly. That the deceased joint owner by shear automatically passes to the surviving joint owner by the mechanism of being held jointly. So the will doesn't come into it. Okay, which is a surprise to a lot of people.
Chris Patterson 44:51
Yeah. Okay. So let me just ask you these questions here. So the underlying statutory instrument that you're dealing with primarily now is that the New South Wales succession act 2006, as am I right on that one?
Adrian Corbould 45:04
Succession act 2006.
Chris Patterson 45:07
Yeah, okay. And does that deal with cross-border jurisdictional issues and defining what an estate can do?
Adrian Corbould 45:15
There's well, they, they codified quite a few acts in 2006 to put it all in the succession act, but there was another act called the Probate and Administration Act 1898. And that handles pretty much everything else.
Chris Patterson 45:29
Did you say 1898?
Adrian Corbould 45:32
I believe that's old, that's not when it's last updated.
Chris Patterson 45:36
But they haven't completely revoked it, repealed it.
Adrian Corbould 45:38
It must be it must be a good... must win, or a good thing. Like there's other acts like a trustee act and other acts, but the main two ones the main, so the succession act broadly covers it, it's divided into five parts. First part is wills, so the mechanics of making a valid will altering a will, revoking the Part Two does cover international cross jurisdictions as well. We'll find a foreign law and international wills and things like that. Part three and four, the area I deal with, which is family provision claims, disputing wills. And Chapter Four is intestacy. So where people die without wills, and five is miscellaneous. So it basically covers preparation and creation of wills and disputing wills. And the Probate Administration Act is basically the minutia getting particular points when administering and probating wills.
Chris Patterson 46:33
Into the two main ones. Okay. Hey, so before we move off estates and into the next court concept being wills. I want to just run a hypothetical past you just because I'm quite interested in the cross-border jurisdictional scenario. So let's hypothetically say we've got Rita and John, they live in a nice home in Surry Hills in Sydney. But they've got an investment apartment here in Auckland where I am. And Rita passes away. What are the issues for John as the surviving spouse? What if Rita's got a will? Let's just say they don't jointly own it. It's a tenancy in common scenario, but she's wanting to give it to John on her death. Are there any foreshocks in that scenario?
Adrian Corbould 47:14
Yes, immediately, I would think of. So jurisdiction is a huge issue when it comes to wills and estates. And so in Australia, it's all state-based. So the recommendation is you should have a will in every jurisdiction in which you hold assets. So theoretically, if you own property in New South Wales, and if you own property in Queensland, you should have a will in each jurisdiction. And that's because probate is because the land title's office or whatever the office is that holds the title of property, they will not transfer the title to anyone else, a beneficiary without a grant of probate. And the grant of probate is the process of proving the last will. And that is issued in each jurisdiction. So to transfer a house in New South Wales, you'd need probate in New South Wales. Transfer a house in Queensland, you'd need probate in Queensland. There is a law that says you can reseal probate. So if you've successfully obtained probate in New South Wales, you can get a reseal of that probate in any other Commonwealth country and state within that. So you could get a reseal in Queensland, and in this instance, New Zealand. But what if Rita or John made a will in New Zealand that dealt exclusively with their New Zealand assets? That was not in concord with the New South Wales will. Then there could be some issues there. So having properties in differing jurisdictions is something that anyone who owns them should be aware of and should get estate planning advice on?
Chris Patterson 42:07
Yeah, and this isn't an uncommon scenario. I mean, I think I read somewhere that something like over 250 million people live in a country that they weren't born in, you know, it's just part of migration and human race. You know, and then, of course, you know, a lot of people, at some point, will go and work overseas, maybe for many years. And by, by us mainly and movable property that causes a lot of the problems. Just, I mean, one thing, we won't get into a lot of detail, but I know that the New Zealand Law Commission here because there is a move to modernize and repeal. So the raft of legislation on the side of the Tasman, they have addressed abolishing what's known as the Mocha MBQ role, which comes out of households' decision back in the 19th. Back in the 19th century, which had just been short see, you know, provided that if you've got foreign immovable property, you know, it can't be dealt with and well in your own country. So, yeah. Anyway, let's move on to the concept of what a what a Willis. So Adrian, what's a will?
Adrian Corbould 43:31
A will is a document. And that is, that's, that's a key term, a document doesn't have to be a piece of paper. A will must be in writing. So it must, it must have words on it that express who you want to be the person to administer your estate because I hope it won't just magically your assets won't magically distribute themselves to your beneficiaries. There needs to be a human being to conduct all this.
Chris Patterson 44:06
What's that person? What's that person called? I mean, we'll probably dive a little bit deeper into that in the moment when the executor
Adrian Corbould 44:12
called an executor, the executor. Their role is to get probate and administer the wills. So file that document in the Supreme Court, get probate back, and probate has huge power that then gives them legal stamp proper legal standing to represent the deceased. And the way I explain it in layman's terms is imagine the executor is deceased. So they've been reincarnated. This executor has virtually all the power of the deceased heads, they can close bank accounts, move money around, and have huge responsibility because they could. And it's a huge position of trust because they could theoretically cash in all the assets, book a one-way ticket to a country that has no extradition treaties, take the cash and disappear. So you only nominate someone you trust explicitly with being your executor. And then if they have to hold assets for a period of time because there's minor children or disability trust or something like that, then they have the title of trustee. So they are trusted, but it's a huge position of trust. Generally, it's recommended you nominate the person who has the most benefit because they will see they will have a personal interest that the probate gets done. So if I, if I was someone's neighbor and I have been left nothing in the will, and I get nominated to be the executor. What's in it for me?
Chris Patterson 46:04
But that could cause some issues, though, like, I'll just give you a hypothetical. And I'll take it, you what you're saying isn't an absolute. There's always exceptions. But a hypothetical, nothing
Adrian Corbould 46:19
can be absolutely certain any, any. And everything I say has about 20 asterisks attached to it.
Chris Patterson 46:27
Absolute. So like one example would be that say the daughter from the first marriage has got the most benefit. But look, these children from the second marriage who still have quite a bit to benefit, but not the most. They're not appointed as the executor and trustee. You know, that's not an uncommon situation. Oh, yeah,
Adrian Corbould 46:48
absolutely. Cause a lot of problems. Yes, it does. Yeah. Then, because then there's often an attitude as to oh, I, I now find out that not only is the executor but she was the power of attorney before death, and power of attorney you have pretty much carte blanche, access to someone's bank accounts. And often suspicions are raised as to oh, that bank account family got $5,000. In it, he told me he had a million dollars in it. What was what happened to the cache. And so then it becomes an issue of the executor. The executor's role is to be responsible to make sure that the deceased assets are how they should be, and even look backward in time to make sure that a power of attorney was acting correctly and didn't bid on any funds. So in those instances where there are different standings, so where beneficiaries have similar standings as to relationship, per se children. And one of them nominated, not all of them, they can be a problem. And it can even be a problem if you nominate all of them because it can be like herding cats, because the administration only moves as fast as everyone signing off on it. So if there are four executors and three, yep, we're good to go and one is inactive, probate won't move. So then applications have to be made to remove executors. The appointment of an executor can be very difficult. You can appoint independent parties like the public trustee that can fix the problem. But there are also issues there as to they can charge more than what an end date. They can charge the estate for doing the job whereas a family member generally wouldn't charge if they're a beneficiary. So the appointment of an executor can be a lot of trouble. And if it's not done
Chris Patterson 49:02
correctly, okay. And look, of course, the deceased once they're dead, they're gone. They're not going to be worrying about these things. But those that are left behind, and the appointment isn't an issue and it's in there and it creates a fight within, for example, the family. I mean, are these things resolved quickly and cheaply? Or can they turn into long-running years, keeping Senior Counsel very well off?
Adrian Corbould 49:30
Yeah. Well, as I tell everyone, consent makes the law legal in this area. So if everyone agrees, and everyone can agree at day one, everyone can agree on anything as long as all the people who have affected interests can agree.
Chris Patterson 50:06
Sorry, can I just stop you there? Again, you know, I'm not familiar with the New South Wales succession act. But I know that the Law Commission here in New Zealand is looking at drafting up a new, you know, the proposing that the be drafted up a new piece of legislation. And the idea behind that will not the idea, but one of the one of the recommendations that they've made, is, is pointing to the fact that often an estate litigation matters are resolved. And it's, it's after the event, after after death, by way of, of what you've referred to as a deed of family arrangement. But are you saying that prior to death? Yeah, someone could, you know, get the kids together and say, Look, you know, I want the oldest to be the executor, and administrator, and I want the rest of you to sign a deed agreeing to that, because I don't want to pass away and and have a fight over that appointment. Is that what you're, you're saying?
Adrian Corbould 51:14
I do see there are lawyers who advocate having discussions by all affected parties, including the future, before death, to come to these arrangements.
Chris Patterson 51:31
Are they enforceable under legislation?
Adrian Corbould 51:35
Yes, that, yes, they're there in New South Wales. There's a thing called the section 95 release, and of the succession act. And what that says is, if such a relief is given by the court, and the court has, it's not, it's not something that the parties can just consent to send it to the court and it gets a rubber stamp. It's something that a judge that that a Supreme Court judge, so it's a big deal. Supreme Court judge has to consider and make orders on that's basically determining if it's in the best interest of the person giving the release that they won't challenge a wheel that, that this will be the case. So yes, it is it is theoretically possible for children for that mum or dad to have a family meeting and say, okay, look, there's four of you. One of us an investment banker, who lives in Double Bay, the other one is down these luck hasn't got anything. And the other two are just like middle income earners. Number Number One son who's been investment banker with the I'm not leaving you anything. child who's down on your luck? Well, I'm not gonna leave you anything, either. Because you've got a drug habit, or any money you get you gamble. I'm leaving it to the number two and three children who have looked after me, they can imagine how well such a discussion is going to go. The child who the children who lose out may not take that well. And they would likely not sign off on the to that effect, particularly the one that's down and out. The richer one, if they get legal advice might realize, oh, well, these family provision claims their needs based and I don't need the money. That Who's to say they didn't make all their money in Bitcoin. And next week, Bitcoin tanks, lose all their money, lose everything, and dad died a year later. And then they do have a need.
Chris Patterson 53:51
Yeah. So I think. Yes, I'm not saying that in practice. Okay, so it sounds to me that you're raising the two competing objectives of succession law, which is, on one hand, testamentary freedom, you know, the person who's got the property, wants the freedom to be able to say, This is my property, and I and this is what ever happened to her. This is the other objective, and that is to make sure that, you know, when they die, that they actually meet the obligations that they have to the family members and anyone else that they are obligations to an asset that that competition that's going on and striking that right balance. But it sounds to me that theoretically, you could get a family enter into a deed a family arrangement and then get it signed off by a Supreme Court judge.
Adrian Corbould 54:48
That is, yes. Okay. Could happen. A judge but very rarely done. I've not been involved in one I've had clients talk to me about it and say, can it be done? I said, Well, you know, if you want No, we get we can we can have that discussion, but it never pulled off. But I'm not saying it doesn't happen. It there is certainly, like there's a lawyer named Vinter. Harris, who does. She advocates collaborative practice of having such discussions before death. And the mobs of Ovation she has been running it very well for for many years. So it must happen. It's just something I've never observed. And I've done. I've been doing this for nearly 20 years, and it's nothing that is commonplace.
Chris Patterson 55:36
Now. Well, I wonder if we're onto something here, because the Law Commission in New Zealand has saying look, kind of following the same concept of two individuals who are entering into a into a relationship. And you know, and you know, sometimes the second time around, and they want to contract out of the, of the matrimonial property relationship provision, you know, they go to the lawyers, the lawyer lawyers work together, they draft up a document that reflects both parties, interests of what happens if there's a separation, and provided that there's certain procedural requirements followed, you know, for example, that they've got to both be independently advised, and the lawyers have to explain the effect, and then the lawyers certify the agreement, then that theoretically, is as binding should now what the Law Society is saying, Well, why can't we follow something similar, but in a succession scenario, to is a way of hopefully avoiding what become and and look, you've been dealing with us for years. So you, this will be a very familiar story to Adrian. And that is these long running, very corrosive, and also extremely expensive family disputes after the event. And that is, why not get the family together beforehand and say, This is what my intentions are. If you don't agree to this, then I've got other options, like I'm gonna start gifting my property away. Or I'll set up trusts or I'll do whatever else, but I don't want to pass away with the knowledge that it's likely that my children are going to spend the next 10 years fighting with each other. And a large chunk of that's going to go off to the legal profession and Sydney. I mean, seems to me that that would be better to do that in a way that meant it was enforceable, and you didn't need to go and get a judge to sign it off. If there was some sort of procedural mechanism. I mean, it just seems to make sense to me. What's your thoughts?
Adrian Corbould 57:45
Oh, there are a few leans on that. So you are correct. In that section, the 95 relief that I mentioned, the most common, Heifetz used it is when couples divorce and are separated, and they don't want any possibility of their ex-partner making a claim on their estate because of the family provision rules. The persons who can compare include ex-spouses. So that's people who have been divorced, which I think you know, that would sound alien, and like, why on earth would they do that? But I've run several matters that have succeeded. And because they did have merit, ex-spouses succeeding on their former spouse's estate. And why they did is because they, the couple did not have property settlements before they died, did not get these releases from the court. So if someone was to get divorced, and I had significant assets, I would recommend they get such relief, and the court would be more inclined to make such an order because when you divorce, they want a clean break. As in, look, there's no expectation you will ever have to provide for me ever again. We've had the property settlement. We've had the divorce, we're done. We can now both move on with our lives. That's different for children. You can't really divorce your child or your parent. Not only that, exactly, yes, there are movies about, and yes, it can happen. But for the main part, that relationship is ongoing. And where I see the problem is any fantastical idea of getting kids together, working it out is that people's lives change and change so dramatically. In short times, as the years progress, as in someone says, you get your kids around, they're all in their 40s and 50s. And say, okay, at the moment, my assets are a million dollars. And I'm dividing it 10% 10% 80% for these reasons, and everyone might say, yep, that's absolutely fantastic. Dad might live another 20 years, and that asset might go up dramatically. Might have bought shares in Google when they were one cent. And now it's worth a billion dollars, or let's make it realistic, that 1 million is now 5 million. He bought a house in Sydney 20 years ago, and it's gone up five times. And the children may have had differing fortunes. One of them might get divorced and get wiped out. And the other one who was left a lot might turn their fortunes around and become very wealthy. So then, because these claims are assessed, not just at the deceased death, but at the time of assessment of the claim. And what is relevant in these claims are the financial circumstances of the claimants and the beneficiaries. So the problem I see with that is unless you do it every year, unless you review these decisions every year or some very regular period, which is not really practical, I can't see people wanting to commit themselves to say, Yes, I'm going to sign on to this. If it's to their detriment, if it's even Stevens, you know, kids, I've got three kids, I'm dividing it three ways. No matter what the state is, most judges are going to say, Yeah, well, what can you do better than divided equally? It's where it's disparate gifts and percentages. I don't think the person who's on the low end is going to be too conducive to say, Yeah, I'll sign up with that. Because you couldn't give me another 10 or 20 years until the parents pass, and everyone's fortunes can change.
Chris Patterson 1:02:10
Yeah. Yeah. And of course, there's, you know, everything's fixed Pacific, but you know, you can have the scenario where, you know, Rita says to her, you know, two adult kids, look, you, James, you, we paid for you to go through medical school, and now you're this high-flying surgeon in 2 million a year. But we funded you through all of that for all that time. Okay. And that cost us, there cost us lots of money. Whereas where's your sister? We didn't give her anything. Okay. And she struggles. Okay, so you've already had a large chunk of our property, and it's only fair that it isn't equal. Okay. And that kind of makes sense. And, you know, of course, these are some of the arguments that the Supreme Court and certainly would hear every now and again, that no, it was, you know, equal during the lifetime. But look, let's move on a little bit. And deal with the issue of public education on succession, wills, estates, etc. You've been writing is not existed. Yeah, yeah, exactly. And this is an issue.
Adrian Corbould 1:03:32
Sorry, I thought you meant school, school, public education,
Chris Patterson 1:03:38
or even the state or life? Yeah, or even the state government. You know, putting some resources and I guess, putting information out there.
Adrian Corbould 1:03:49
That's nonexistent to me, I would say it's only lawyers. Because I've got to say, I wish I went to uni five years did an accounting law degree, became a lawyer. I had no idea of half of the practical about making personal injury claims. I grew up thinking, Oh, well, if you get injured, too bad, you just if Medicare can fix you, upgrade, if not, I didn't know anything about the pedigree of motor accident claims and public liability and victims of crime and WorkCover and things like that. And as for a state, I didn't have the foggiest idea. You could contest the will didn't even actually know much about will or succession at all you just do at uni. I think you do just in that, well, depending on the student. You do just enough to get through the course. Because it'd be rare for someone to think, as I'm definitely going to be a corporate lawyer or yes, I'm going to be a wilderness state's lawyer or a criminal lawyer. I'm sure they exist, but I think they would be in the minority. So I think the education that's out there about most laws is minimal. Right, that's issued by the public. That's issued by the government.
Chris Patterson 1:05:09
Yeah. Okay. But I mean, to be fair on, you know, there are some areas of law that don't really affect most people are just I'm not going to disparage that the pattern of patent lawyers out there, but you know, their area of expertise, and the laws relating to them don't really affect most people. But, but here's the thing, everyone is going to die that as a citizen.
Adrian Corbould 1:05:33
Other than the vampire, I don't think anyone has escaped it yet.
Chris Patterson 1:05:38
Exactly. So FME. Yeah. And look, you know, and a large number of people are going to die will have, for example, children, and they may have some property. So this Law, the Law of Succession is just one of those areas that affects most people at some point in their lives. So why wouldn't we provide a bit of education about it and there so my so my kind of a little segue into that, as the end to ask you about the Battle of the worlds video series, which is on your firm's YouTube channel, your firm, Bing Turnbull Hill, great YouTube channel, recommend anyone who's a you know, watch his YouTube, get in there and follow the channel. But I think you've got how many episodes a year up to Adrian
Adrian Corbould 1:06:32
to be close to 30. I think I've had a bit of a lull, there was a bit of a lull, right when COVID, struck in 2020 and couldn't come into the office, but there are absolute plans to get it. revitalized. Okay.
Chris Patterson 1:06:51
I'm just going on to YouTube. Now. I think you'll find that a number is actually 43.
Adrian Corbould 1:06:57
Oh, there you go.
Chris Patterson 1:06:58
Yeah, no, that's, that's Look, that's fantastic.
Adrian Corbould 1:07:00
Oh, my God, you're probably looking back at the data.
Chris Patterson 1:07:04
And I'm looking at playlists there, and there are 14, some early years stuff.
Adrian Corbould 1:07:10
There's some earliest stuff that I've asked my digital marketing manager to expand from the internet. But I think it keeps cropping up further back when I was doing DIY with an iPhone turned backward, perched on a cardboard box with no microphone, doing it myself in my office. Yeah. That might have been quite a bit. It has evolved. It has evolved, I hope. Yeah, for
Chris Patterson 1:07:44
the better. Well, look, from my perspective, I think it's a fantastic resource and tool. I mean, they're not long videos, you know, three, four minutes
Adrian Corbould 1:07:53
to three minutes. I think the key? Yeah, yeah.
Chris Patterson 1:07:56
And they provide in real laypersons' terms. A really good insight into, you know, the main themes and issues that confront people with wills, estates, succession, litigation, primarily, but you know, how to avoid some of these things. And I think that's great to add to public education out there. Because, you know, the state isn't really promoting it. I know, in New Zealand, it's been a concern, as you know, that the public access to information around wills is really lacking. It's just a real problem area.
Adrian Corbould 1:08:38
Chris Patterson 1:08:41
Yeah, yeah. Well, hopefully, this podcast might help a little bit as well, you know,
Adrian Corbould 1:08:46
that you never know. I think the more it gets discussed, people pick up. They say you've got to see something seven times before you take an interest in it. So, you know, the hero podcast is here, your podcast may see something else for No, pennies drop.
Chris Patterson 1:09:01
Okay, Adrian, I just wanted to run past another concept that relates to succession law, and that is where you've got a deceased, but prior to them dying. They made a bunch of promises to someone. Maybe it might have been along the lines, I'll just use this hypothetical example. Hey, if you pay my mortgage, paint my house, maintain it all. I'll make sure that there's provision in the will that you get half the value or the house, and then lo and behold, they pass away and the will doesn't provide for that. So the person that the promise was made to, do they have any rights, or can they bring a claim?
Adrian Corbould 1:09:44
Yes, absolutely. So in New South Wales, that's referred to as promissory estoppel. So that's where someone makes a promise to another person that they will leave them something in their will. The other person relies on that promise and acts on it to their detriment. So, by detriment, meaning they lose funds, spend the funds, lose income to assist that person. And then they find the person dies and they don't get that gift. Whereas had they not? Had they not relied upon that, they could have lived their life another way, gotten a job, or moved, done something else. So that's called a promissory estoppel claim and not irregular, they're in the courts, I'd say every few months.
Chris Patterson 1:10:41
Okay, so look at this as something that happens, and I take it the Supreme Court can make an order that part of the estate be paid to that person?
Adrian Corbould 1:10:53
Yes. Okay. Generally, the courts prefer to hear all the state problem issues at once. So if there are other disputes, generally they all get run simultaneously. So if someone's got a family provision claim, and someone else has a promissory estoppel claim, there are notices sent out to all persons who have an interest, basically saying this person has made this kind of claim. If you want to avoid if you want to edit something, now's the time because if a decision is made, it may be to your detriment. So, yeah, but that's, they, I would say easily, several years. promissory estoppel, okay.
Chris Patterson 1:11:39
You've raised a good point. Yeah, yeah, you're right. It's a good point. And that's something else that the Law Commission New Zealand is looking at. And that is the obligations on the executor. And the law commissioner is suggesting that that person be called. There'd be a terminology change in calling that person the personal representative. But that the personal representative, or the moment the executor, the LPR, they, I think that's a legal personal representative. Yeah, legal personal representative, is to have some obligations to provide information and, in particular, to let beneficiaries know that they're a beneficiary and that there's actually a will, and to get on with that reasonably quickly so that people know, you know, that they may have a claim and could bring one. There are, are there actually any obligations in New South Wales, you know, in terms of the executor providing that information?
Adrian Corbould 1:12:37
Not really. The only obligation an executor has to a beneficiary is to the new administration of the estate. So basically, what that means is when it's time for me, if I'm the executor, and, Chris, you're a beneficiary, the first you might ever know of that you're the beneficiary of Auntie Dolly's estate is when you get a letter in the post with a check, saying, "Here's your check for $10,000, you're a beneficiary." There's no real obligation, certainly no obligation for the reading of the will. That's a completely made-up movie thing. The executor has to publish online what's known as a notice of intent to file probate. So that's accessible from anyone who has an internet connection, basically saying, "Adrian is going to apply as the executor of Dolly's will dated one January 2020. She died on one May 2022. Anyone who has claims or creditors, contact this lawyer." That's all they have to do, and the probate registry will not let the application proceed without that. That used to be done in a newspaper. How anyone would ever know that was printed, I don't know. But that's, that's all I have to do. And then it's an option to publish what's known as a notice to distribute. Why an executor does that is if it gives them legal protections. If they distribute after certain periods of time, six months from death, and after, and there are no claims brought, no notifications of claims brought on the estate, if the executor distributes and, let's say, Westpac calls them and says, "By the way, that deceased has $50,000. Where is it?" The executor can rely on a particular section of the Act that says they are absolved of personal liability if they have done these things, if they've published these two notices. But again, that second one's an option. So there is no obligation. If there are no claims on the estate, for an executor to proactively contact beneficiaries in the early stages and say, "Hey, by the way, Chris, you're getting $10,000. We'll get back to you after probate is granted, and when it's part of the distribution."
Chris Patterson 1:15:37
Can I give you this scenario, rather than saying that I was on a plane that crashed, and I ended up on a beach with a volleyball called Wilson and Fiji, something a bit more realistic, that we've got that, for example, I've, you know, I've decided I'm going to move into the Blue Mountains and run a small cafe up there and lead a simple life. I don't really have access to the internet, or when I do, I'm certainly not checking for public notices. And, you know, time goes by, I then find out through the grapevine, let's say, two years later, that my estranged parent has passed away, and learn that they didn't leave anything for me in my will, and the estate has been fully distributed. Sounds to me, I might be a bit out
Adrian Corbould 1:16:35
of luck. Yeah. Not not an uncommon occurrence, I'd get a call like that, probably few times every month. To which I say, in New South Wales, the time limit to bring a family provision claim is 12 months from the date of death. And this differs between state to state. So Queensland has got a thing, it's six months from the date of probate, Victoria has got a similar thing. For each state is absolutely different. In New South Wales, it's 12 months from the date, you can try to bring what's known as an out-of-time claim or a claim brought after those 12 months. But there are a few factors, criteria you need to meet. The first one is a reasonable excuse. So why are you bringing this claim out of time? Your excuse might be, well, I had an estrangement that was caused by the deceased. And I live in the Blue Mountains. I don't have internet, TV news, anything. I only found out because the post told me two years later. That's not a great excuse, but it is still an excuse. The second one is, will there be any prejudice to the beneficiaries if you bring this claim? Now, you mentioned an absolutely important key point, the estate has been fully distributed. And I would say yes, there'll be a huge prejudice to the beneficiaries. Because let's say I was a beneficiary. And I was given $100,000. And I went and blew that on a new car, which I then wrapped around a telegraph pole. I didn't insure it. But I survived. And then I get a summons, including me as a defendant saying, Oh, I'm making a claim on my father's estate, you received $100,000 from it. And I'll be seeking an order that you return that to the estate or that an order that if awards are made in my favor, you chip in? And I say well, hey, I'm not the one who gave me the money. And I got it, and I spent it. So now you're asking me to dip into my own funds. I don't think a court would support a claimant who did that, where they were, I think they will entertain it is where the estate hasn't been distributed. So let's say there was real estate that was just sitting and wasn't sold or bank accounts. So that wasn't distributed. I think you've got more of a chance there. But once it's all gone, very, very hard, very risky. And the claimant could well suffer what's known as a personal costs order, where they have to pay the costs of the defendants if they lose, so the situation is given because of those factors. I wouldn't like your chances.
Chris Patterson 1:19:30
No, okay, look, and but of course, there are other scenarios where, you know, people do front other scenarios, saying, hey, look, I mean, I did get notice, but I've been quite stressed out by the situation. And there's been a lot of conflict. I just
Adrian Corbould 1:19:45
deal with this injury or something here,
Chris Patterson 1:19:48
or don't even know they don't even know that they
Adrian Corbould 1:19:51
exactly, exactly. There's so many people who say I didn't know personally and then one of the questions I asked inquirers is, Have you obtained advice about this? So I've already talked to a lawyer eight months ago, and the lawyer said, you have rights. And now they've just waited. And the lawyer said, well, look, you're past 12 months, that's going to be a key issue, that they knew about their rights. As you know, one of the outcomes of one of the Maxims of equity is equity will not aid someone who sleeps on their rights. So if you're aware of it, they're not gonna know good. But often people just don't know. They say, Well, I didn't even know you could contest the will until my brother or cousin told me about you or look into it. Yeah, that can be an excuse,
Chris Patterson 1:20:47
or until I ran out of time, or until they listen to this. Listen to this podcast. I doubt look, last area I just wanted to cover off. Again, because I understand this is statutorily provided for in New South Wales, it's not part of New Zealand law. But our Law Commission as part of recommending a new act called the Inheritance Claims Against the Estates Act, proposing that this be addressed as some anti and anti-avoidance provisions. And this is where someone in the lead up to passing away, maybe they got cancer, and they know that they've, you know, the doctor said, Look, you're not going to see Christmas, suddenly goes, Hey, I'm gonna start getting rid of all my stuff. So that that avoids any anyone else having a crack at my estate? So can you tell me about the anti-avoidance rules in New South Wales?
Adrian Corbould 1:21:44
So this applies only in New South Wales, none of the other states have anything like what is effectively says is in the 12 months, prior to death, if they had the ability to transact with their assets, and did so that train that in certain circumstances, generally, where there's not enough assets in the main estate. So say the estate's all gone. Or it's low, and six months prior to death, dad shifted $500,000 to one of his kids' accounts. And so when he dies, he actually owns nothing. If it's 12 months before death, an applicant can elect or can ask the court to deem that transaction as what's known as a notional estate, a prescribed transaction under the succession act, but that asset be notionally deemed part of the deceased estate solely for the purpose of a family provision claim. And the key to the 12 months is they don't have to prove intent, you don't have to prove why the deceased did that you've only got to prove that they did it. It goes back further. If it happened more than 12 months, but less than three years. Same situation, same situation, that transaction can be deemed to be a proscribed transaction, which is notional estate brought back into the estate, if you can prove that the deceased did it with the intent to evade making provision for persons who could make a claim. So it can go back three years. And they must have done some actuarial studies on that. Because as you indicated before that having the family meeting that doesn't go well. And dad or mom says, Well, look, I'm giving it all away. So there's nothing left. Might the governor must have done some study that three years is the time that people will do that if they're aware of terminal illness? Perhaps? I don't know. But that's 12 months now, and then more than 12, less than three is you have to show intent and only in New South Wales. Wow.
Chris Patterson 1:24:17
Look, I mean, that's fascinating. And makes perfect sense. I mean, do you, do you do just as a side issue, have you had any experience with corporate insolvency work?
Adrian Corbould 1:24:27
Corporate insolvency, not a lot.
Chris Patterson 1:24:32
Okay, because that would Yeah, I mean, you're probably aware that like a liquidator can claw back transactions, you know, we've got a bunch of directors go look, this you know, this company's thinking it's terminal. It's gonna be dead in six months time. Let's all start paying money that we owe to our friends. Of course,
Adrian Corbould 1:24:55
not in a similar in where it comes into play a lot is joint assets and super. So they're, they're the main ones. As I've mentioned earlier, superannuation does not form part of an estate, and it's deemed with, because you can sever. And so as I said before, anything the deceased had the power to control up to the seconds before their death can be deemed national estate. So a joint asset, you could unilaterally sever that joint ownership prior to death. So you own a distinct percentage of it. Superannuation you could elect to pay it into your estate or change who the beneficiaries are. So those are the two main ones, I've only seen that I've only seen property transfer successfully work where mum transferred her house to her daughter 10 years before her death. And I had someone ring me up and say, I know mum definitely at the top, I just got this house at Dubbo. And I did a property search and it said, well, sorry to tell you that mom transferred that to your sister 10 years ago. And since that's more than three years, she successfully evade and she did it purely for the intent that her son wouldn't see, that worked for her. Again, that is not estate planning advice, I would not advise anyone to give all their assets away to evade a claim. Reason so is 97% I couldn't give stats about 97% of wills are not contested. So it's only a very small percentage of the mark and tested. So may as well make a will because there's a huge chance it won't be challenged and the the practical terms, I use it. If anyone's ever played roulette, the green square, there's a 3% chance that that green square will come up. That's how the house wins. So if you bet on red or black, if there was no green square, you could successfully keep doubling up, though, you could just bet on levels out read read read read that that little green square is why the casinos win because they've ultimately got more money than you so they can back their losses. And all they need is that one 3%. But most of the time you can walk into a roulette wheel, put it on read 5050 That's like 49.5 49.5.
Chris Patterson 1:27:36
All right, so it won't be challenged. Okay. Yeah. And look, last last question before we rap. You mentioned throughout this podcast, the various points the issue of probate. Now there's two forms of probate. Is that right?
Adrian Corbould 1:27:54
Yes, there's two forms of grant. There's a common form grant and a felon form grant.
Chris Patterson 1:28:01
Okay. And what's the difference between the two grants?
Adrian Corbould 1:28:06
Common form grant is where that's the that's the standard. Go through the checkout. At the shop, you know, you do all the right things, you send the form off to the registry with all the right details. And a registrar stamp looks at it. Yep, there's an original will. It's signed. It's not got any doesn't look dodgy. There's all the signatures, the the applications filled in. All right. Very good. They've, they've published a notice saying they're going to apply for it. There's no caveats on probate, which means locks on probate, they stamp it, they send it back. And that gives the executor the power to go and administer the estate. That would be 99.9% of wills. Sovereign form grant is a grant of probate that is approved by a judge. That's a big deal. And executor of the Will I did one last year took two years to get it done because there was a dispute about the validity of a will. So we got a solemn formal grant, for a judge to say this is the last will any earlier wills were revoked and the deceased was at San Juan when they made it. We had to notify every person who could possibly have a claim on this estate so that everyone named in the will of the beneficiary or not everyone named in all earlier wills. That was about three of them. Anyone who would benefit under intestacy, we had to send a notice saying was about 30. Notice that since we had to send out to all these people that say we are getting we are applying for solemn form grant and this will if you've got something to say now's the time because once the grant is made aid. The it can't be revoked, it can't be overturned unless there's fraud or a later will appear. So it's a big deal takes a long time. But a common form grant can be overturned, if someone can get a common form grant. And then a disgruntled beneficiary could say, a year or two on Hey, I found this medical report that says that, at the time Jane was offered the Pixies, she didn't know what she was signing, I now file a statement of claim against the executor seeking to overturn that, well, you can't do that if you get a solemn form grant, because everyone who possibly has a revenue has been given the option to contest it. So they're the big main ones.
Chris Patterson 1:30:53
Okay. So, look, one of the things that you did touch on as argument being off was the Pixies or great band, by the way. Just
Adrian Corbould 1:31:06
that is certainly not a legal expression. But
Chris Patterson 1:31:08
I think you're referring to testamentary capacity. Now is one way around issue. Yeah, huge issue is one way around that is to get a suitably qualified medical practitioner to provide some serious occasion after a such refusal to provide certification as to capacity as then as,
Adrian Corbould 1:31:30
again, I wouldn't, I wouldn't say that. Again, as I said before, everything I say has asterisks on it. And So to say that is a way around it, that helps to all of these I call club analogies, because I think it just helps people understand what it's about. So there is no claim proof will any any lawyer who says I can make your bulletproof Well, guess what? Might be bulletproof, but it might not be rocket launcher proof. So the more armor you can put on something, you might better defeat claims. So yes, but say, The judge gave a judgment two years ago, he said anyone over 70 I don't care if the sharpest attack. Anyone ever said unto him, he makes a will should do these following things. The person who's making the will make very copious notes about everything, who brought them to the appointment? Who made the appointment? Who did you see? What did you ask them? Huge details. Get get medical reports from the GP. From a geriatrician, if you can have someone who has seen them regularly. Ask them questions about, you know, what current events? Because these are the questions that will be asked if these things aren't done, that lawyer had made that will be sitting in a dock in a booth, we'll be sitting in a witness chair for that day being peppered questions by silk, saying, so you didn't ask them what year it was. He didn't ask them who's the Prime Minister, or you didn't think that when her daughter brought her along to the appointment that wasn't relevant to write that down or see them separate all these things? You didn't think it was relevant to get a medical report so that we could end up having a law cover claim by the executive that will saying well, you should have done all these things. So these wills, you see that says $100 Will that a lawyer makes you know, they might, you know, they will do the job. But if if it's contentious, then the 44-gallon drum of worms, but getting that report is helpful, but it does not does not make it claim-proof because the claimant might say, Oh, the report was done a month before, or that's a GP at mum's clinic but it's not the GPS either regularly or it's not by a geriatrician and the GP is not trained to know sufficiently about what capacity means. All good seems to minimize claims. Absolutely, but not not claim-proof.
Chris Patterson 1:34:20
Okay, right. Now, I think I said the last question a few times. But you did. Exactly. You did. Right. You did say something before that sparked my interest, and I think it may spark some listeners' interest, and that is, you mentioned the concept of a caveat against probate. What is that?
Adrian Corbould 1:34:43
Caveat. So caveat is from the Latin meaning. The way cited like Caveat emptor made the buyer beware. Caveat Kanem the way of a dog so caveat in this instance. So until probate is granted, to probate again, that's, that's, that's one of the absolute key things. Probate is the issuing of a formal document to an executor by the Supreme Court, saying that is the last will. And that's the executor. That person is responsible up until that time. It's not certain.
Chris Patterson 1:35:25
It's a timing issue, you know, someone's passed away. And then an executor then applies for probate estate in general form. Now that could be, it could be what, you know, a couple of months between the two events, a
Adrian Corbould 1:35:38
couple of months in, because and particularly. So it could be two or three months or more until probate is granted. So a caveat is like a red flag. What it does is the caveat, all plants are red flags at the probate registry, saying no probate is to be granted on this estate until I'm heard on the matter, or at least until I'm notified. And so the probate registry, we're just down tools on that file and go, okay. We're not doing anything further until that probate is either withdrawn voluntarily, either cavia tool or a court order that to be removed. So where it's used, and I'd have to file them quite regularly for people, is someone will die, and one of the children will say my sister's had mom living in her house for the past year. She won't answer the phone because she won't let me visit. A will has been a wheel was made a month before mom's death, leaving everything to my sister. Here's a copy of it; mom's signature looks like a cat scratched it. I don't believe mom had the capacity to make this will. A caveat is a simple document that gets filed on probate saying don't grant probate to any will until I get an opportunity to be heard on the matter. So in that time, the COVID, because then the case generally, the onus of proof falls on the person trying to prove. So if the wheel on the face of it looks valid, the court in most instances will say well looks valid, I have no evidence to the contrary to make me believe otherwise. I'm gonna grant probate if a caveat at all can say hey, here's evidence. Here's his mom's death certificate said the cause of death, heart attack, dementia for the past five years; that shifts the onus to say, Well, okay, person trying to prove this Will, you now have to prove that the deceased didn't have testamentary incapacity? And then, if that issue is not resolved amicably between the parties, and generally to a court case, or at least legal proceedings being commenced against one party, to get to the issue, to aid the court to get to the issue to determine did the deceased have the capacity to make that document or any earlier document?
Chris Patterson 1:38:36
Look, Adrian Corbould, this has been the most fascinating discussion that I've had on the topic of other states, and succession, wills, and generally death itself. Thank you very much for coming on the lowdown under podcast, and I greatly appreciate your time. Thank you, Adrian. Thank you for tuning in and listening to this episode of The Law Down Under Podcast. You're welcome to join in on the discussion via my podcast page which you can access at patterson.co.nz. That's at patterson.co.nz. Thanks for supporting the podcast, and tune in again for more on the law, its application, and the future of the law here down under.