Wills, Intestacies, Estates and Funerals

Contributors: Bonnie Allan and Charles Rowland

Currency of information: February 2009

In Memoriam

LIZ ALLEN

This Chapter on Wills, Intestacies, Estates and Funerals was originally co-written by Liz Allen who died in tragic circumstances on 20 January 2004. The Contributors and the ACT Law Handbook acknowledge Liz's special contribution to the law and legal education in the Territory.

Things to do before Death

There are some things a person can do to reduce the difficulties and expense of administration after death.

The first and most important thing is to have a professionally drafted will. (This is discussed more fully at The Need for a Will and Making a Will.

Second, one could consider putting assets in joint names (see Glossary of Legal Words Used, under "joint tenancy"). Transferring bank accounts into joint names, or, if, say, one party to a marriage has a relatively short expectation of life, into the name of the healthier partner, will save delay and expense, because the contents of the bank account will not have to pass through the estate. Further, the bank account will be frozen if it is in the name of the deceased person, and this can be very inconvenient. The same applies to shares and other investments.

So too, in some jurisdictions, for instance the ACT and New South Wales, real property (such as houses, units and so on) can be transferred from the name of one partner into the joint names of both, and the transaction is subject only to nominal Stamp Duty. This will mean that the dwelling automatically by operation of law becomes the sole property of the survivor on the death of one joint tenant, and does not pass through that joint tenant's estate. This will result in a considerable saving of time, as the administration of the estate can take many months, while the formalities for the passing of joint property to the survivor takes only a few days: see Glossary of Legal Words Used, under "joint tenancy", and also Size of the estate. It also saves expense, as to some extent the cost of administering a deceased estate is proportional to the value of the assets in it, and, as we have noted, property owned by a joint tenant who dies does not form part of or pass through the estate of that person at all. However, in all cases where the ownership arrangements of substantial assets are being changed, the capital gains tax implications may need to be considered.

Third, one should get professional advice on the best way to prepare for the payment and investment of the proceeds of life insurance policies and superannuation. Superannuation and life insurance policies should be checked to make sure that there they contain no long-forgotten or unwanted nominations of beneficiaries, as these nominations will by statute override any will, even a will executed after the nomination was made.

Enduring Powers of Attorney

It is sensible for people of any age to give an enduring power of attorney to a trusted person, such as a partner or child. An enduring power of attorney gives the attorney the power to make decisions on behalf of the person giving the power (the "donor" of the power). We are all familiar with the power of attorney one gives to a trusted person to deal with one's affairs while one is away, perhaps overseas. It gives the attorney the power to get new tenants for the house if necessary, to make necessary repairs to the property (for example replace the water heater) or to pay bills. Enduring powers of attorney are like ordinary powers of attorney, but they are different in one respect: they continue in force after the donor of the power loses capacity.

Enduring powers of attorney are created under statute: the Powers of Attorney Act 2006 (ACT) available from the ACT Government legislation website at www.legislation.act.gov.au/af/2007-52/default.asp.

The enduring power of attorney is designed to enable a person to make sure that a trusted person (the attorney) will be able to act or decide on behalf of the donor if the donor of the power loses the capacity to act or make decisions herself or himself. Under the legislation enduring powers of attorney have three aspects: the power to make property decisions; the power to make personal care decisions and the power to make health care decisions. The property decisions element allows (but does not compel) the donor to give the attorney limited or general power to manage the donor's property. The personal decisions element allows (but does not compel) the donor to give the attorney power to make personal care decisions on behalf of the donor -- decisions such as a move to a nursing home if this level of care becomes necessary. The health care element allows (but does not compel) the donor to give the attorney power to make decisions relating to health care: it allows the donor to say what level or kind of health care and medical treatment is to be given them (or withheld from them). So, for instance, the donor can say whether extreme measures to preserve life are to be maintained, or are to be abandoned at some point.

Enduring powers are valuable between partners as well as spouses, and are very helpful and reassuring to someone caring for a person whose health and capacity are declining drastically, and because they give insights into the wishes and desires of the donor, they are helpful to other close members of the family too.

There are dangers in giving an enduring power of attorney: the attorney is in a position of power which is open to abuse. In Greenland v Baldwin (2006), McMurdo P, Jerrard JA and Helman J, the Court found that a solicitor who had been appointed his client's attorney was in breach of fiduciary obligations to the donor, and had committed professional misconduct by mismanaging the affairs of the donor. See too Ames and Harley, p 34. However, on balance the benefits far outweigh the dangers.

In spite of the fact that added power means added danger, the donor of the enduring power should consider giving the attorney power to act for the benefit other people, including the attorney, as well as the donor. The power to benefit the attorney herself or himself is often needed and reasonable.

The form to be used for an enduring power of attorney is Approved Form AF2007-52 under the Powers of Attorney Act, s 92, available at www.legislation.act.gov.au/af/2007-52/current/pdf/2007-52.pdf. The formal requirements for the enduring power of attorney are strict, and it is suggested that professional advice be sought.

How the Law of Succession May Involve You

You may become affected by the law of succession in various ways:

• when you have your own will prepared for you (you should not draft your own will.);
• when you are winding up an estate for someone who has died;
• as beneficiary in the estate of someone who has died;
• as a creditor of an estate;
• as a person who has been disinherited or left inadequately provided for. (The law provides remedies for a spouse, partner (including same sex partner), domestic partner, child or other close relative left without adequate provision for proper maintenance.) This is provided in the Family Provision Act 1969 (ACT) ('the Family Provision Act'); see Part [33.6].

Is Succession Work Do-It-Yourself?

Some succession work is do-it-yourself; some is not. You should not draft your own will. You should always get professional help with drafting a will. On the other hand the work of administering an estate can be done by a lay person although generally it is wiser to consult a solicitor, the Public Trustee or a trustee company about the administration of the estate, particularly if the estate is large or complex, or there is a possibility of conflict between the beneficiaries: see Public Trustee, Will the Lay Person Administer the Estate Personally, or get Professional Help? and Duties of the Personal Representative.

Glossary of Legal Words used

Administration and Probate Act means the Administration and Probate Act 1929 (ACT).

Administrator -- a person appointed by the court to administer the estate because no executor was appointed by the will, no will was made, or the persons appointed by the will renounce the executorship. Sometimes the general term "personal representative" is used to include executors and administrators.

Attestation clause -- the clause near the end of the will that states that the testator and the witnesses signed the will in the presence of each other. The attestation clause states that the required formalities were complied with.

Beneficiary -- a person who takes a part or a share of the deceased person's estate.

Capital Gains Tax -- Capital Gains Tax is another important part of taxation. It affects estate planning, and it affects the drafting of wills. In particular, a will which provides that property must be sold on the testator's death, or gives to a beneficiary an option to purchase estate assets, is likely to have adverse capital gains tax implications. Professional advice is particularly important where taxation issues arise.

Codicil -- a legally valid document which adds to or alters a will.

Death Duties -- Along with Federal Estate Duty and Gift Duty, State and Territory death duties have been abolished.

De facto spouse -- This definition is not used in ACT legislation--see definitions of "partner" and "eligible partner". In the Australian Capital Territory the de facto spouse is entitled to inherit on intestacy (Administration and Probate Act), or to claim family provision if left without adequate provision for proper maintenance, education and advancement in life (Family Provision Act), but the relationship which could be described as "de facto spouse" is covered by "eligible partner" and "partner".

Domestic partner -- is defined in s 169(1) of the Legislation Act 2001 (ACT): "someone who lives with the person in a domestic partnership, and includes a reference to a spouse of the person". The "domestic partner" is entitled to claim family provision and in certain circumstances is entitled to receive through intestacy.

Domestic partnership -- is defined in s 169(2) of the Legislation Act 2001 (ACT): "the relationship between 2 people, whether of a different or the same sex, living together as a couple on a genuine domestic basis". This section lists indicators that the court may look to in ascertaining the existence of domestic partnership. These include:

• the length of the relationship;
• whether they are living together;
• whether there is a sexual relationship;
• financial dependence and interdependence;
• whether they mutually care for and support children;
• the ownership, use and acquisition of their property; and
• the reputation, and public aspects, of the relationship between them.

This list is not exhaustive.

Eligible partner - under s 44(1) of the Administration and Probate Act the "eligible partner" of an intestate means someone, other than the spouse of the intestate, who --

The eligible partner thus defined is entitled to inherit on intestacy.

Estate -- the assets and liabilities left by a person who has died.

Estate Duty -- Federal Estate Duty has been abolished.

Executor -- a person appointed in a will or codicil to wind up the estate. Sometimes the general term "personal representative" is used to include executors and administrators.

Family Provision Act means the Family Provision Act 1969 (ACT).

Fiduciary -- is, according to The Oxford Companion to Law:

a person in a position of trust, or occupying a position of power and confidence with respect to another, such that he [or she] is obliged by various rules of law to act solely in the interests of the other, whose rights he [or she] has to protect. He [or she] may not make any profit or advantage from the relationship without full disclosure. The category includes trustees, company promoters and directors, guardians, solicitors and clients, and others similarly placed. (Walker, p 469).

Agents, including attorneys and personal representatives are also fiduciaries.

Grant in Common Form -- a grant (of probate or letters of administration) is made in common form when the application for grant is uncontested -- it is not opposed by anyone -- and the Registrar of Probates is able to make the grant on the basis of the papers before him or her. All straightforward grants are in common form, and almost all grants are made in this way -- see too, "grant in solemn form".

Grant in Solemn Form -- a grant (of probate or letters of administration) is made in solemn form when the application for grant is contested, and the two opposing sides have to be heard by a judge. Occasionally the Registrar or the executor will ask for a grant in solemn form if there are serious doubts about the will -- see too, "grant in common form".

Grant of Letters of Administration -- (sometimes called simply "grant of administration") court authority to act as administrator and to administer the estate. A Grant of Letters of administration is needed when there is no executor. As with straightforward grants of probate, the Registrar of Probates makes straightforward grants of letters of administration. The choice of the person to whom the court will grant letters of administration can sometimes be complicated, but the principle is that the court will give the task of administration to the person who is entitled to the largest share of residue. If there are several who share the residue equally, the court will choose one of them rather than make a joint grant to more than one.

Grant of Probate -- court authority to act as executor and to administer the estate. The court gives its authority to the executor named in the will when the executor has satisfied the court -- proved to the court -- that the will is genuine and validly executed, and that the applicant for grant is indeed the person named as executor in the will. "Probate" is the Latin for "proof", and is simply a certificate from the court affirming that the will has been proved. In the ACT, by statute, the Registrar of Probates, who is an officer of the Supreme Court, exercises this function of the Supreme Court, and makes all straightforward grants of probate: Court Procedures Rules 2006 (ACT) ('the Court Procedures Rules') r 6250 and Schedule 5 Part 5.1

Grant of Representation -- the general term covering different forms of grant: grant of probate if the grant is to an executor named in the will, or grant of letters of administration if the court has to choose and appoint someone to administer the estate.

Income Tax -- this is a major form of taxation, and minimisation centres on:

Intestate -- leaving no will. See, too, Testate and Partial Intestacy.

Intestacy Rules -- the statutory rules that lay down to whom the property goes when the deceased has not left a valid will or has not validly indicated to whom her or his estate should pass on the person's death.

Joint Tenancy (see too "tenancy in common") -- a form of co--ownership in which the following principles apply.

• There are no shares -- in theory each joint tenant has the whole of the property. No party has a specific share in the property while the joint tenancy continues. This means that the joint tenants must have equal interests in the property, and are entitled equally to its rents and profits. There can be two or more joint tenants.
• The principle of "survivorship" applies -- on the death of one joint tenant the surviving joint tenant gets the whole property automatically by operation of law, irrespective of any will made by the joint tenant who died, and irrespective of the intestacy rules. This gives considerable protection to a joint tenant.

It follows that property held in joint tenancy does not form part of the estate of a joint tenant who dies. This is important when deciding whether a grant of probate is needed; for example, a grant is required if the estate contains land. However, where land is held in joint tenancy by the deceased and a surviving joint tenant, the property passes automatically, by operation of law, to the survivor without forming part of the estate of the first--dying. A grant of probate is therefore not required for transfer (to the other joint tenant or tenants) of property held by the deceased as a joint tenant.

• Joint tenant's interest cannot be given by will - a joint tenant cannot in his or her will deal with property held in joint tenancy, because the property goes automatically to the other joint tenant on the death of the testator. The only additional matter to note here is that the last surviving joint tenant can bequeath the property in his or her will as there is no joint tenant left.
• The principle apples to all property -- the principle of joint tenancy applies to personal property as well as real property-- it applies to furniture and bank accounts as well as to land.
• When joint tenancy is used -- in many situations, but typically where a couple purchase property together and they want the property to be held equally, and they also want the principle of survivorship to apply they usually have it registered in their names as joint tenants. They would probably wish to do so if there are no children of a previous relationship to consider. On the other hand, it would not usually be appropriate to register a house in joint names where one partner to a relationship (such as marriage) buys the house using only her or his own money or has contributed much more to the house than the other partner.
• It is not usual to give property by will to beneficiaries jointly.

Lay person-- a person who is not professionally trained as a lawyer, or in the law of succession.

Legacy -- a gift of personal property in a will (that is, a gift of property other than land).

Legatee -- a person who receives a legacy.

Letters of administration -- see "grant of letters of administration", above.

Partial intestacy - having left a will which deals with only part of the testator's estate, so that the rest of the estate passes under the intestacy rules.

Partner -- is defined under both the Family Provision Act and the Administration and Probate Act.

Under s 7(9) of the Family Provision Act "partner" of a deceased person means someone who:

The partner thus defined is entitled to claim family provision.

Under s 44(1) of the Administration and Probate Act a partner is either "the spouse of the intestate when the intestate died" or the "eligible partner of the intestate". See also definitions of "domestic partner" and "eligible partner".

Personal Representative -- the global term which includes executors and administrators.

Probate -- see "grant of probate", above.

Probate Registrar -- see Registrar of Probates.

Public Trustee -- a government official whose office specialises in the preparation of wills and the administration of deceased estates. The Public Trustee also acts as trustee in life estates and in trusts generally. The Public Trustee's charges for drawing wills are moderate. The Public Trustee normally requires to be named as executor of wills drawn by the Public Trustee. In many cases, particularly where conflicts within the family are possible, or long-term professional oversight of estate assets will be required, the Public Trustee's impartiality and professionalism will be an advantage. The website is www.publictrustee.act.gov.au. For other contact details see Contacts, Links and Resources.

Registrar of Probates -- The Registrar of Probates is an officer of the Supreme Court -- a public servant -- who is empowered by the Court Procedures Rules r 6250 and Schedule 5 Part 5.1 to make grants of probate or letters of administration on application. If the application is disputed, the Registrar will refuse to make the grant, and the applicant will have to apply to the court for an appropriate order: Court Procedures Rules r 3065 ff.

All documents in Probate proceedings including;

• applications for grants of representation and reseals;
• accounts;
• applications for commission; and so on

are filed at the Registrar's office. Other documents indexed and kept in the Probate Office include:

• deposited wills -- that is, wills deposited by living testators: Wills Act 1968 (ACT) ('the Wills Act') ss 32 and 33;
• applications for grants, and associated documents;
• grants and the relevant wills. After the grant the will is a public document, and so is the grant itself. Both are available for perusal by members of the public (Court Procedures Rules rr 3119, 3120, 2901, 2903).

Reseal -- where a grant of representation is made in another State or Territory, or in another Commonwealth country, the grant cannot be used in the ACT. However, the local court may recognise the foreign grant, and grant a "reseal" of that grant. This gives the personal representative full power to operate in the ACT.

Solicitor -- a legal practitioner who does legal work, dealing directly with the public. A solicitor will draft wills for a fee which varies somewhat from solicitor to solicitor, and will give professional advice on what the will could and should contain. The solicitor will usually be prepared to retain the will in safekeeping after it is drawn. Solicitors are generally unwilling to accept appointment as executor in a will unless the will contains a lucrative charging clause. It is not really satisfactory for a solicitor to draft a will appointing herself or himself executor and benefiting herself or himself with a charging clause.

A solicitor will be prepared to do the legal and practical work of administering estates.

Spouse - see "eligible partner" and "partner".

Stamp Duty -- a tax that will be imposed on transfer of land, shares and so on during your lifetime on a sliding scale up to 2.5 per cent. Transfer on death is exempt from Stamp Duty.

Tenancy in common (see too "joint tenancy") -- a form of co--ownership in which property is held in common with others but the principles contrast starkly from those which apply to "joint tenancy". The following principles apply to a tenancy in common.

• Tenants in common have shares in the property -- tenants in common have fixed undivided shares in the property. Tenants in common can have unequal shares (for example two-thirds to one and one-third to the other).
• There is no principle of "survivorship" for tenants in common -- in contrast with joint tenants the share of a deceased tenant in common passes to her or his beneficiaries under her or his will or intestacy and does not automatically pass to the surviving tenant or tenants in common.

The share belonging to a tenant in common becomes part of the estate of that tenant in common when he or she dies -- that is, a testator who is a tenant in common can leave her or his share by will or, if there is no will, the intestacy rules apply to the share that belonged to the tenant in common. Unlike a joint tenant, a tenant in common can deal with her or his share in the property by will.

• The principle applies to all property -- the principle of tenancy in common applies to personal property as well as real property -- it applies to furniture and bank accounts as well as to land.
• Interest of a tenant in common can be given by will -- each tenant in common can in her or his will leave their share to their own beneficiaries.
• When tenancy in common is used -- where a husband and wife purchase property together and the spouses want the property to be held equally, and they want the principle of survivorship to apply they usually have it registered in their names as joint tenants, particularly if there are no children of a previous relationship to consider.

Where partners contribute unequally to the purchase of a property, or they want to hold it in unequal shares, or they do not want the principle of survivorship to apply, it is common for them to register the property in their names as tenants in common. This is often the case where the partners are not married to each other, or if one or both partners have children from a previous relationship. The fact that they can own unequal shares in the property means that they can fix the proportions of their interests so as to reflect their respective contributions to the property, and they can give those shares by their own wills.Where property is given by will to people as a group (say, to the testator's children) it is usual for the property to be given to the group members as tenants in common rather than as joint tenants.

Testamentary disposition -- a provision in a will or codicil which instructs those who come after on how the property owned by the testator is to be divided.

Testate -- having left a will.

Testator -- a person (whether male or female) who makes or leaves a will.

Trust -- an enforceable obligation resting on a person who is owner of some particular property to deal with that property for the benefit of other persons (one of whom may be the trustee) or charitable objects. Trust beneficiaries are often minors or persons with a handicap. A testator can create a trust by will (to come into operation after the testator's death), or "inter vivos", that is, to come into operation while the person creating the trust is still alive.

Trustee -- a person who holds property on trust for another person or persons.

Trustee company -- Trustee companies are empowered by statute to administer estates and to draw wills. Although they often draw wills for free, they generally insist on being named as executor. Their charges for administering the estate may be high. They may specialise in larger estates.

Will -- a document which has legal force and gives instructions on how the testator's estate is to be distributed after his or her death. A will can appoint executors and testamentary guardians, give instructions on disposal of the body and create trusts.

Wills Act means the Wills Act 1968 (ACT).

Wills

The Need for a Will

Generally wills have to be in writing and properly signed and witnessed in the precise way laid down in the statute in order to be valid. A will is a document in which the testator directs how her or his property is to be divided and whom it is to go to. The testator also directs in the will who is to be her or his executor. A will can appoint a testamentary guardian to care for minor children. A will can be used to create a trust.

Every adult person over the age of 18 should have a will. (The Wills Act s 8A gives the Supreme Court power to enable a minor (a person under the age of 18) to make a will. There are a number of reasons for having a well-drafted up-to-date will:

• to avoid the hardship caused to the family if they have to search for a will, or for distant relatives (next of kin), after the testator's death;
• to appoint the executors of your choice. If no executor is appointed then the court has to decide who will administer the estate. This is an inconvenient process and is more expensive than simply appointing an executor in your will;
• to appoint a guardian of your minor children (that is, those of your children who are under 18 years old at your death);
• to avoid having your estate divided according to the law of intestacy. If you don't have a will then your estate is distributed according to the intestacy law: the law will decide according to a set pattern who will receive your property. The intestacy rules are set out in the Administration and Probate Act Part 3A. The intestacy rules, which differ for each State or Territory, may not accord with your wishes;
• to choose who is to get your property and in what proportions. You cannot make a specific gift to take effect on death without a will. Taxation problems, and uncertainty are reduced to a minimum; and
• to avoid the additional cost and inconvenience of obtaining letters of Administration as opposed to a grant of Probate.

You will have to pay to have a solicitor draft a will for you, but the money you spend you should regard as well spent. It is a gift to your family, and one which will be greatly appreciated. Many families have experienced the misery caused by a testator who has left a badly drawn home made will, or who has perhaps left no will at all. Either can cause great unhappiness to the family.

Making a Will

Any person who is 18 years old or older (or, even if he or she is under 18 years old, if he or she is married or making a will in contemplation of marriage), may make a valid will. With Supreme Court permission, a minor can make a will: Wills Act s 8A.

A married person, or unmarried partner, can make a will without the knowledge of her or his spouse or partner. It is important for a person under pressure from a spouse or partner to know this fact, and for the solicitor drafting the will to ensure that a person making a will is advised that a will can be made without the knowledge of the spouse or partner. This is particularly important if the will is being made in the presence of the testator's spouse or partner. A person can also alter their will without the knowledge or permission of their spouse or partner.

The law requires that a person who wishes to make a will must have the mental capacity to do so. The tests for capacity were laid down in a famous case called Banks v Goodfellow (1870). The tests for capacity established in that case are:

• the testator must understand the nature of the act of making a will;
• the testator must understand the extent of the property he or she is disposing of;
• the testator must understand and appreciate the claims that those close to the testator have on him or her; and
• there must be no disorder of the mind which distorts his or her testamentary gifts.

A person who has suffered a stroke and is unable to speak may still satisfy these tests and be capable of making a will. Such a person should be encouraged to consult a lawyer and to make a will if this is what they want to do; it is cruel to discourage them. But such a person should NOT be pressured to make a will, or put under any pressure at all to include any particular provisions in a will they are making. Like everyone else, they must be completely free to make or not to make their own will. If a major beneficiary is present while instructions are being taken by the solicitor, the finger of suspicion may later point at the beneficiary, who may lose her or his benefit.

Should you make your own will?

IT IS NOT A GOOD IDEA TO MAKE YOUR OWN WILL.

The cheapest way to make a will is to buy a will form from a stationers or to buy a will kit. The trouble with these will forms and kits is that they often cause great unhappiness to the family. It is very difficult to know what the legal meaning of the words used by a lay testator is. Even the simplest words turn out to be ambiguous. It is very expensive to get a will interpreted by the court. Interpreting a will has to be done by the Supreme Court, since magistrates have no jurisdiction to interpret wills. This means that, because of costs, many doubtful wills are never resolved, and resentments remain in the family for generations thereafter. If the parties do get the Supreme Court to resolve the difficulties of interpretation, the expenses will constitute a large and unwelcome deduction, usually from the estate.

Get your will professionally drafted

A professionally drawn will is an essential for a person who cares about her or his family. A home-made will is likely to cause severe and expensive difficulties and delays for the family, and is definitely a false economy.

A professional will drafter is aware of the traps in drafting a will -- for instance, is a bequest of property which happens to be mortgaged to be given subject to, or free of, the mortgage? A professional will drafter will also be able to look at the wider issues generally known as estate planning to advise on whether one's affairs could be organised to better advantage. A professional will drafter is able to avoid Capital Gains Tax pitfalls. If you have a will professionally drafted, the savings in subsequent legal costs for the family are likely to outweigh by far the initial cost.

There are three classes of professional will drafters -- solicitors, the Public Trustee and trustee companies.

A. Drafting by a solicitor

The first possibility is to engage a knowledgeable solicitor to prepare your will. A good solicitor will advise you on the choice of executors and trustees (executors are normally also named in the will as trustees, even if the will does not expressly set up a trust.) If your major beneficiaries are of full age and capacity, it is common practice to appoint some or all of them as your executors. This gives the named executors the opportunity to decide when the time comes whether to administer the estate themselves, or to entrust the administration of the estate to a professional person selected by the lay executors to do the administration of the estate at the time when it has to be done.

If the major beneficiaries are minor children, some close members of the family or friends can be appointed as executors and trustees, but in this case the choice of executors and trustees is difficult and not without risk (the family members or friends may prove not to be up to the task), and it may be better to appoint a professional such as the Public Trustee or a trustee company as executor and trustee. It is not usual to appoint your solicitor as executor or trustee (see Choice of executors and trustees).

Solicitors' charges vary, but a common figure might be around $600.00 for a straightforward will. Two corresponding wills say of husband and wife can be prepared for not much more than the price of one will.

B. Drafting by the Public Trustee

The second alternative is to get the Public Trustee to prepare the will. The Public Trustee will do a well-drawn will at very little cost, but the Public Trustee insists on being named in the will as the executor and trustee. (See Choice of executors and trustees). The work done by the Public Trustee is of high quality, and the services offered are valuable, Consult the website, www.publictrustee.act.gov.au, and for more detail see Choice of executors and trustees at E. Public Trustee as executor and trustee and Contacts and Links.

C. Drafting by a trustee company

The third alternative is to get a trustee company to prepare the will. Some trustee companies will do a will for free. Again trustee companies require to be named as executor and trustee. their charges for performing the duties of executor and of trustee are likely to be substantial.

Revising your will

Bear in mind that your circumstances are likely to change with the passing of time and therefore you should review your will if there are subsequent births or deaths or marriages or divorces in the family, or if you dispose of any property which you have mentioned in your will. In any event a will should be reviewed regularly. You should read the copy of your will which you keep at home every two or three years, or when some major change in your circumstances occurs.

Some wills cannot be drafted to work well far into the future. This is particularly true if the testator is a member of a blended family, and provision has to be made in the will for the testator's children from a previous relationship: such wills can only be drafted for the situation as it now is, and as the situation changes the will goes out of date and must be reconsidered. Such wills must be reviewed at frequent intervals. See also Automatic revocation by marriage; effect of divorce.

Validity of a will

A. Formal requirements

Before signing a will the testator must fully understand all the provisions of the will and be satisfied that it accurately reflects his or her testamentary intentions. In the ACT the formalities are set out in the Wills Act ss 9, 10. The Supreme Court in the ACT has a power to admit to probate a will which does not comply with the formalities if the court is satisfied that the document was intended to be the will of the testator -- Wills Act s 11A.

B. The signing ceremony

(i) witnesses

Note that beneficiaries who sign wills are no longer excluded from inheriting under the will: Wills Act s 15. This alters the old rule.

(ii) signing the will

Section 11A of the Wills Act enables the Supreme Court to hold that a document is a valid will even where it is not executed with the required formalities, if the court is satisfied that the testator intended the document to be his or her will. The process is expensive and time-consuming, and no-one would willingly make an informal will relying on the executors and beneficiaries to apply to the Supreme Court afterwards to uphold it.

Because informal documents may be admitted to proof as wills in the ACT and some of the States, it is important not to create doubtful documents which look as if they might be intended to be wills.

Foreign wills and wills made out of State

Wills made in other States or Territories or overseas will be accepted in the ACT if they are valid according to the law of the jurisdiction where they were made: Wills Act Part 2A.

What you can Put Into your Will

Both spouses dying together

In general where a beneficiary dies before the testator or testatrix, the gift lapses and is of no effect. If the beneficiary survives the testator even by a very short time (even as short as a minute) the beneficiary inherits from the testator in that time. Where it is uncertain who died first there is a statute (Administration and Probate Act s 49P) which deals with the situation and ensures that the gift does not fail completely. It is therefore not necessary to deal with the situation of the two spouses dying simultaneously.

If a gift is made by will to a child or children of the testator and one of those children dies before the testator leaving a child or children who survive the testator by a period of not less than 30 days, the gift to the child who died before the testator does not lapse, but passes to the descendants of the deceased child: Wills Act s 31.

Disposal of the body

If you have strong views about the disposal of your body you should make those views known to your executors and close family members during your lifetime, say, by letter. There is a danger in putting those views in your will because the will may not be found until a week or so after you have died and by then the wrong thing has been done. If you wish to make your body available for medical research you should also consult with the hospital concerned about the best way of making sure that your wishes are carried out. This matter is discussed in more detail at Arranging the Funeral and The Use of the Body or Organs for Scientific or Medical Purposes.

Gifts

Gifts can be of various kinds. The basic principle is to keep the gifts simple, fair and general. For example, "I give my whole estate to be divided equally between those of my children who survive me" is much safer than an unequal division between children; it is also greatly to be preferred to a list of bequests of specific assets. In fact, only a minority of wills contain any specific gifts of particular assets.

Where a testator wants to provide for a person with a disability, or the testator wants to make a gift but wants to protect the subject matter of the gift from the beneficiary (who may be an alcoholic or a bankruptcy risk) the will can contain more complex provisions such as protective or discretionary trusts. A trust or a life estate can also be used to keep property in the family, particularly if the beneficiary is, say, married to a person who will put undue pressure on the beneficiary to hand over the property.

Trusts and life estates usually cause much more trouble than they are worth, and they impose considerable continuing administration expenses on the estate. However, they have their uses, and occasionally they are really needed.

Where long-term provisions are contained in the will the choice of trustees is difficult: see Choice of executors and trustees.

Choice of executors and trustees

A. Executors generally

The choice of executors and trustees is interwoven with the tasks they perform. The persons appointed as executors are almost always also appointed as trustees as well, so that, for example, as trustees they have the long term task of protecting and managing the estate assets for the benefit of the testator's young children until they come of age. In this note when we use the word "executors" we mean "executors and trustees".

It is important to note that no-one who is appointed executor is under any legal obligation to accept the appointment, even if they have told the testator that they would. Appointing as executor a person who does not benefit from the will places a considerable burden on that person, and if you are thinking of appointing as executor someone who is not a beneficiary, you should talk to that person, and see if they really are prepared to, and capable of, taking the responsibility.

No natural person who is appointed executor need actually do the technical or professional work of administering the estate. It is always open to an executor to get a solicitor, trustee company or the Public Trustee (see Glossary of Legal Words Used, under "Public Trustee") to do all or any of the work of administering the estate, and indeed, this is the usual thing to do. Only a minority of lay executors actually do the work of administration themselves. By appointing lay executors you are leaving it open to them -- indeed, inviting them -- to shop around for a professional to do the work of administration, but leaving the final decision-making responsibility -- overseeing the work of administration -- to the appointed executors themselves. For example, it is common to have the solicitors deal with transfer of real property, but the lay executor will often deal with government bodies who need to be advised of the death of the deceased (like Medicare) and divide up the personal effects of the deceased such as jewellery and household goods according to the provisions of the will and the wishes of the family.

Where there are longer term trusts as well as the shorter term task of administering the estate, the appointed executors may decide to do give the work of trustees to a professional trustee, such as the Public Trustee: see Choice of executors and trustees at E. Public Trustee as executor and trustee.

If the executors are to be natural persons, there should always be at least two. Indeed, two is the best number, as it could be disastrous if the sole executor dies before completing the administration. Having more than two executors may prove to be inconvenient.

There is no objection to appointing as executor of a will a person who is also a beneficiary under it. Indeed, in most cases, particularly in the case of corresponding wills between domestic partners such as a husband and wife, this is the usual thing to do. Each gives the whole estate to the other, and appoints the other as executor. Again, where the estate is given to the testator's children, it is usual to appoint the children, or say two of the children, as the executors (assuming that the children are adults). For long term trusts it may be appropriate to appoint family members as executors and other, independent, trustees because of the possibility of conflict of interest between the trustee and the beneficiaries of the trust -- the Public Trustee could be a good choice, at least as a co-trustee to work with the individual trustee or trustees if family members are chosen for this task. The Public Trustee is a salaried public servant who is impartial, professional and experienced, and the Public Trustee's office has a high reputation in the community. Trustee companies can also be considered at this point: see Choice of executors and trustees at E. Public Trustee as executor and trustee.

If there is no suitable family member for executor, or if it is likely that the only available family members are likely to disagree, then you should consider appointing the Public Trustee as your executor.

Even if your beneficiaries are adults you should probably not appoint them as your executors if they are likely to disagree seriously, or if the nature of the estate or the demands imposed by the will are likely to cause the executors undue responsibility or stress. In this case too you might consider appointing the Public Trustee as executor. If you are considering having your will made by the Public Trustee, discuss your wishes and anxieties with her or him at the time, and get reassurance that as your executor the Public Trustee will carry out your wishes sensitively and appropriately. If there is a house in the estate, will it be sold, or will it be preserved and let for the children to have when they grow up?

Where there is a need for a long term provisions such as life estates or trusts, or where there are no suitable close family members to act as executors, it may be useful to appoint a professional such as the Public Trustee, or in certain cases, a trustee company as executor or trustee. The question of cost to the estate, as well as the advantages and disadvantages to the estate, should be discussed with the Public Trustee or the trustee company as the case may be.

There is always a risk in appointing lay trustees (such as family members without legal training), for instance where property has to be held for minors, as laypeople often do not keep proper accounts, and the family environment makes it impossible or embarrassing for the beneficiaries to challenge the actions of the lay trustee (who is perhaps their uncle or aunt) later. Some lay executors even refuse (quite improperly) to show the will to members of the family who ask to see it. There is a considerable risk in appointing as a trustee a person whose interests will conflict with those of the trust beneficiary, for instance, it would be unwise to appoint the beneficiary of the residue as trustee of a trust for another family member, and then provide that on the termination of the trust the remaining trust funds are to fall into residue -- the trustee's interest in preserving the trust fund for his or her own eventual benefit would conflict with his or her duty to apply the trust funds for the benefit of the trust beneficiary.

Being executor is onerous and thankless, so you should not be keen to appoint a family friend who will take no benefit under the will. In this case a legacy to the family friend to compensate him or her for time or trouble would be in order. While appointing lay executors (whether they are beneficiaries or not) gives them the power to choose an appropriate professional person to do the work of administration and of trustee when the time comes, the risks are that the lay executors may decide to do the work themselves and do it very inefficiently, or they may get into disagreements with other interested persons. On the other hand, many a lay executor does a competent job of administering a deceased estate; usually, but not always, with professional help.

It is not usually a good idea to appoint your solicitor as your executor. He or she may leave the firm, move interstate or retire from practice -- or the firm may amalgamate or divide.

An executor who lives outside the ACT may obtain a grant of probate in the ACT if certain conditions are met.

B. Executors where there are minor children

If the children are young then the choice of executor is sensitive and difficult (an executor cannot act as executor until reaching the age of 18 years.) If there is an obvious family member who can look after the money safely and effectively for the children, (or can supervise a solicitor or some other professional person such as the Public Trustee who is managing the money) then that family member can be one of the executors. The other executor would probably be another family member, the assumption being that the two family members will get on well with each other and cooperate well. It is not generally a good idea to appoint a husband and wife as joint executors (or, for that matter, as joint guardians), as the marriage might break down, and then cooperation between the two is likely to be at an end.

One of the two family members you choose as executors might well be suitable to be appointed as the guardian of the minor children (it is not generally appropriate to appoint joint guardians). It is common for the children to be under the care and control of the person appointed as guardian, though this is not legally necessary, as it is perfectly possible for guardianship and care and control to be separated.

C. Executor's powers and minor children

Particularly where there is a possibility that minor beneficiaries will survive the testator, the executor's powers should include adequate powers to administer the estate and to invest it as well as powers to maintain, educate, benefit and advance the children until they reach 18 when they will be old enough to come into their inheritance.

D. Long term administration: trusts, life estates, minor beneficiaries, large estates

The position of the life tenant of an estate consisting of fixed interest investments may not be pleasant. However, it may be preferable to that of the life tenant of or minor ben­eficiary entitled to share in an estate invested in shares or debentures of companies which have provided the more spectacular crashes of the last few decades. Unless the testator is able to appoint executors of financial knowledge and discretion, the expansion of the investment powers creates a risk.

Where a life interest, trust or conditional gift is created, or where minor beneficiaries have to be cared for, it may be important to choose a disinterested, impartial trustee. The choice can be very difficult. Where a continuing trust is created, the choice of trustees will depend particularly on the type and purpose of the trust, the length of time for which it is to endure, as well as the complexity and nature of the portfolio of assets.

An institutional trustee with appropriate experience and expertise such as the Public Trustee or a trustee company may be a solution. The Public Trustee and trustee companies have experience and expertise, and will often be a better choice than an individual trustee, or, worse still, an inexperienced lay trustee.

Consult with the Public Trustee or trustee company before making the appointment in the will, and, with the consent of the testator, discuss the will as drafted with the institutional executor.

E. Public Trustee as executor and trustee

The Public Trustee for the ACT comments that effective trust administration is a complex area demanding specialist knowledge, vigilance, diligence, prudence, openness, independence, longevity, accessibility, expertise across several disciplines, compliance with regulations and accurate record keeping. The Public Trustee has expertise in management of funds, protection of capital and the creation of wealth. The Public Trustee employs lawyers, accountants, financial planners, tax agents and experienced trust officers with appropriate tools and resources. The fees are not disproportionate, especially when tax savings and good asset management are taken into account. The Public Trustee's primary concern is always to protect and further the interests of trust beneficiaries, especially vulnerable persons.

Power of appointment

There is something to be said for giving beneficiaries a "power of appointment" (that is, a power to appoint and remove the trustee). If this power is not given and the trustee becomes expensive, intransigent, difficult to work with or obstructive, the beneficiaries may want a different trustee appointed. But unless a power of appointment is given, the testator's appointment of trustee (institutional or individual) is in practice irrevocable once the testator has died: it is expensive and indeed virtually impossible for a beneficiary to get a trustee appointed by will removed except in extreme situations. See generally Geddes, Rowland and Studdert, paras [40D.13]ff; Porteous v Rinehart (1998) at 518 per White J: "It is rare for a court to remove an executor or trustee, save in exceptional circumstances"; Pope v Pope (2001) (Doyle CJ, Duggan and Bleby JJ); Weir v Matthews (2001) (Young CJ); Greenland v Baldwin (2006) (McMurdo P, Jerrard JA and Helman J) (a solicitor trustee).

If the appointment turns out expensive, frustrating or burdensome, the beneficiaries will just have to learn to live with it -- so the quality of the initial appointment is crucial. Giving to the beneficiary or beneficiaries a power of appointment is a strong and valuable protection, but it is not always available or appropriate.

General principle

Where the main beneficiaries (the beneficiaries of the residue) are adults and are entitled absolutely -- that is, where the will imposes no conditions or long-term obligations which affect the residuary beneficiaries -- the principle is still to appoint as executors the main beneficiaries, for they are motivated to complete the administration, and they are always free to obtain expert professional help.

Appointment of guardian for minor children

A surviving parent will continue to be the guardian of the minor child of the testator. As a result it is not usually necessary to deal with the guardianship of children where the other parent is expected to continue alive. However, corresponding wills of a husband and wife usually deal with two situations: the other spouse survives the testator by 30 days, and the other spouse does not survive the testator by 30 days. The testator usually wishes to provide for someone to be the guardian of the young children if the other spouse does not survive the testator. It is not usually necessary to appoint a guardian for children who have reached teenage years, indeed, the appointment of a guardian may inhibit the family when it tries to find a home for the orphaned children.

A step-parent does not automatically become the guardian of the children on the deceased's death. The law of testamentary guardianship in the ACT is governed by the Testamentary Guardianship Act 1984 (ACT) ('the Testamentary Guardianship Act'). It is therefore usual to appoint a testamentary guardian for the case where the children are orphaned, but not for the case where one parent survives.

The powers of a testamentary guardian (appointed under the Testamentary Guardianship Act) are set out in s 7 of that Act.

Section 7 (1) provides:

A testamentary guardian of a child has responsibility for the long term welfare of the child and has, in relation to that child, all the powers, rights and duties that are vested by law or custom in the guardian of a child, other than--

Section 7 (2) provides that the guardian may take into her or his custody, and may manage, the real and personal property of the child (not being property held by a trustee under a trust) until he or she ceases to be the guardian of the child. Other powers of the testamentary guardian are set out in s 7. Under s 7 the guardian is responsible for accounting to the child, when the child attains the age of 18 years, for the guardian's custody and management of that property.

Though the powers of a testamentary guardian (appointed under the Testamentary Guardianship Act) are not fully defined, it appears that having a guardian is valuable to the child in that without the consent of a guardian the child may have difficulty performing certain activities. These would include making decisions concerning the education, religion and medical treatment of the child. The guardian would also be able to consent to the child's marriage and the issue of a passport, and litigate on behalf of the child.

Make financial provision for guardians and carers

If you are considering making provision for the possibility that your minor children might be orphaned and will have to be cared for by some family member or friend, you should discuss with the person drafting your will the need to ensure that the guardian or carer does not suffer financial hardship by reason of taking on the care of the children.

Although the law allows guardians and carers to recover their expenses from the estate, they may tend to stint themselves, and suffer financially as a result of caring for the children. Also, it may be very difficult for the person caring for the children to identify clearly which of their expenses are strictly for the benefit of the children, and which are for their own benefit -- for example, if the guardian or the person caring for the children has to buy a larger car or a larger house to accommodate the children. The will should make some specific provision about this.

Gifts to charities

A. Perpetuities

Gifts to charities are not bound by the rule against perpetuities (the rule which prevents trusts and other long term arrangements lasting more that 80 years from the death of the testator). It follows that testators can be encouraged to create charitable funds and foundations which will endure indefinitely. There are many important foundations which have endured for a very long time, and have been of immense benefit. The Rhodes Scholarship, the Nobel Prize and the Archibald Prize are examples. This encouragement is strengthened by changes to the tax law which have made bequests to charities more attractive.

B. Philanthropy, community foundations and Prescribed Private Funds

Philanthropy Australia, according to its website www.philanthropy.org.au is:

the national peak body for philanthropy and is a not-for-profit membership organisation. Our Members are trusts and foundations, families and individuals who want to make a difference through their own philanthropy and to encourage others to become philanthropists.

There are regional foundations, such as the Capital Region Community Foundation "Greatergood" (for the ACT region). Its website is www.greatergood.org.au. These community foundations provide average Australians with the capacity to have their own perpetual funds. Many people and families have taken advantage of these opportunities, and in doing so have given lasting benefit to the community.

The gateway to these community foundations is the Community Foundations Gateway. According to its website communityfoundations.philanthropy.org.au, the foundation is

a comprehensive source of information for those involved in, researching, or interested in becoming involved in community foundations in Australia.

The Community Foundations Gateway is managed by Philanthropy Australia.

The Foundation for Rural & Regional Renewal encourages the development of regional community foundations, and uses seed funding and challenge grants for regional development projects.

Government is keen to encourage private foundations to foster involvement of the private sector in funding of charitable and community causes. Prescribed Private Funds are one form of government encouragement. According to the Australian Tax Office website www.ato.gov.au/nonprofit/content.aspx?doc=/content/20926.htm:

[a] prescribed private fund is a trust to which businesses, families and individuals can make tax deductible donations. It is prescribed by law. The fund may make distributions only to other deductible gift recipients that have been either endorsed by the ATO or are listed by name in the income tax law.

To be prescribed the fund must comply with the government's requirements. Gifts made to a prescribed private fund on or after 1 July 1999 can be allowable tax deductions.

Difficult Wills Problems

Blended families

A blended family is one in which one (or both) of the partners has a child or children from a previous relationship. Blended families create very difficult wills problems, and an estate plan should be worked out. A testator who has a spouse or partner and children from a previous relationship really needs to have a professionally drafted will. If the testator leaves her or his whole estate to the surviving spouse or partner who is not the parent of the testator's children, and later dies, the surviving spouse or partner will take the estate. The surviving spouse or partner might then remarry, and, under the influence of new loyalties, make a will leaving her or his whole estate (including what he or she inherited from the testator) to the new spouse and the offspring of the new relationship. The testator's children from the previous relationship will be forgotten and get nothing. The situation must be dealt with carefully and sensitively by an individually crafted will. In sum, it is not good enough to give the whole estate to the new partner, in the hope that the new partner will "take care of" the testator's children from a previous relationship.

It might be mentioned that the intestacy rules will not deal satisfactorily with the situation on the death of the testator either. If a person who has a spouse or partner and children from a previous relationship dies intestate (that is, without leaving a will), the surviving spouse or partner will take the great bulk of the estate and the same problem arises.

Superannuation must be taken into account in doing an estate plan for a testator in a blended family. Superannuation is often the largest asset, and it usually cannot be dealt with by will.

Again, professional advice is essential where a testator has good reason for excluding some person from the inheritance (such as a former partner or spouse, or a child or stepchild or grandchild who has been a dependant of the testator): see Family Provision.

Testator providing for child with disability

Difficult problems arise when a person has a child who is disabled or unreliable with money or married to a person whom the testator does not trust. Again, professional advice is extremely important here.

Superannuation and life insurance

In giving instructions to a solicitor to draft your will, you should discuss the effect of superannuation and life insurance on the distribution of the totality of your assets after your death. Superannuation can have a very large and sometimes unexpected impact. Professional advice is needed.

Reasonable access to the will, refusal to give

Sometimes a person who is holding the will is unnecessarily restrictive about allowing interested persons access to the will or to documents which may be testamentary. The Court Procedures Rules r 3111, and see r 3115(1)(c);empower the court to order any person in possession of a testamentary document to produce the document to the court. An interested person who is being refused reasonable access to the will can use this provision to gain such access.

Helping a Testator Draft a Will in your own Favour

You should not help another person draft a will in your own favour, or, worse still, draft a will for another person in your own favour, as the court will regard these facts as suspicious circumstances, and may require you to satisfy the court that the transaction was righteous. This may be a difficult and embarrassing task, and if you fail you will get nothing under the will -- see Wintle v Nye (1959). Even encouraging a sick or elderly parent to make a will which benefits you may be risky: not only may the court in due course consider that you have crossed over into the area of suspicion, but you may suddenly arouse the suspicions of, and alienate, your parent, who may then cut you out of the will altogether.

Sample Will

Because drafting a will is a job for a professional lawyer we do not offer a sample will in this publication.

General caution relating to making or altering your will

Get professional advice.

It is most unwise to make, alter or revoke your will without professional advice. The misery caused to the testator's family by litigation, long delays, huge expenses, bitterness and uncertainty is terrible and very long lasting, and it happens regularly with homemade wills, wills altered at home, and wills apparently revoked at home.

After Making your Will

Where to keep your will

It is important that you keep your will in a safe place, but it is just as important that those who come after and need to find it can do so. One of the cruellest things you can do to your family is to leave them saying that "I think Dad had a will, but I don't know where it is". The court is most cautious about allowing an estate to be administered if there is doubt about whether there is a will because of the difficulty and unpleasantness involved in trying to claw back assets already distributed to what later turn out to be the wrong beneficiaries. In such a case the distribution of the estate could be held up for years.

Your solicitor will advise you about the best place to keep a will. Many solicitors keep wills in their firm's safes, but some nowadays refuse to, because of a High Court decision -- Hawkins v Clayton (1988) -- in which a solicitor who retained the will was held liable in negligence to the executor (who was the principal beneficiary) for not finding him after the testatrix had died. The suggestion is made in the report of the case that the solicitor may be under a duty to find out whether the testator has died -- an impossible task. Many Canberra firms have staff whose job it is to read the Canberra Times' death and funeral notices each day to check to see if they hold the will of a person who has died. Incidentally, Hawkins v Clayton also shows the disaster which can follow if a testator decides to make or change a will, and then puts off doing so until too late.

Another place to keep a will is in the branch of the bank you normally bank at. The Registrar of Probates in the ACT also keeps wills. The Public Trustee keeps original wills, and also deeds to property and other important documents, in safekeeping for a fee. However, this service is only for people who are clients of the Public Trustee.

Do not keep your original will at home, because, if there is a fire, the original and the copy are both lost. Also, some disappointed would-be beneficiary might go through your papers when you are very ill, or after your death, find the will and the copy and decide to destroy both. This is a crime, but it might not be detected.

Making sure the will is found after death

There is no safe mechanism for making sure the will is found after death. So the onus is on the testator to make absolutely certain that the will is found promptly after death. If you keep a copy of the will at home with your private papers, you should leave a note on the envelope containing the copy of the will saying where the original is to be found (including the bank safety deposit box number, if that is where the will is). It is dreadful for a bereaved family to have to search for a missing will. The administration of the estate can be held up for many years.

List of assets

Place a list of your assets in the envelope with the copy of your will. Assets may be hard to find. You should list bank, credit union savings accounts, superannuation, property, insurance policies, share holdings, trusts and so on to make the task of the executor much easier.

Make a note on the list of assets saying that the list is NOT part of the will, and that you do NOT want it to have testamentary effect. This is important, otherwise a question might arise whether the list (even though it is not executed with the formalities for a will) should be included as part of the will under the Wills Act s 11A, which is described at A. Formal requirements.

Codicil to a will

A codicil is a separate addition to an earlier will. You usually use it to correct an error in it or to make some small change. It is not usually a good idea to make a codicil because there is room for serious mistakes. A codicil has to be made with the same formalities as a will.

Changing a will before or after signing it

If you draft your own will, you may make a mistake in drafting and wish to correct it before the will is signed and witnessed. On the other hand you may, after signing the will and having it witnessed, wish to make a change to it.

Both may be done but special formalities must be complied with.

It is essential that every alteration in a will be signed near the alteration by the testator and by two witnesses (who need not be the same two witnesses who signed the will). The signatures must be made in exactly the same sequence and manner as if they were being made to execute the will itself. If the alterations are not properly signed and witnessed they will generally not have any effect and the will must usually be read as if the alteration had never been made. The Wills Act s 11A gives the Supreme Court power to admit to probate alterations that have not been formally executed.

Generally, it is better to execute a clean will rather than one containing alterations. So, redraft the will to eliminate corrections. If corrections or alterations have to be made after execution, redraft the will and execute it anew.

If you decide that some change needs to be made to your will, you should not attempt to alter the will yourself. You should consult a solicitor. The law reports are bespattered with cases where testators have written on their own, properly executed, wills, and the results are often drastically unsatisfactory.

Revising the will

Read the copy of the will every couple of years, or whenever a major event takes place in your family or there is an important change in the taxation laws. If the will makes sense, well and good. If it is out of date, get it fixed professionally. Notice that marriage usually revokes a will, and divorce revokes gifts to and appointments of the divorced spouse: see Automatic revocation by marriage; effect of divorce.

Revoking a Will

Automatic revocation by marriage; effect of divorce

A will is automatically revoked by marriage unless it is expressed to be made in contemplation of that marriage: Wills Act s 20. To remain valid after marriage, a will made before marriage should clearly state that it is made "in contemplation of my intended marriage to ... and is/is not conditional upon the marriage taking place".

If a will made before the testator's marriage is terminated by divorce, gifts to the testator's spouse become void when the marriage is terminated, and so does an appointment of the divorced spouse as executor. (Some other appointments of the divorced spouse also become void.) The rest of the will remains valid.

There is an exception. If the will is expressed to be made in contemplation of dissolution of the marriage, then gifts to and appointments of the divorced spouse remain valid after the divorce: Wills Act s 20A.

Revocation by action of the testator directed towards revocation

There are several ways in which a testator can revoke his or her will: see Wills Act s 21. The most common are the following:

• by specifically saying in a later will that all previous wills are revoked. It is normal to include a revocation clause in a will, as it prevents worry about whether an old will might be lurking in the background. A revocation clause could take this form: "I revoke all previous testamentary acts"; or
• by destroying the original of the earlier will with the intention of revoking it.

Reviving a Will

When a testator revokes a will by destroying it the testator then has no will at all. If the testator intended by destroying his or her will to revive an earlier will her or his intention will be frustrated because a will cannot be revived in this way. An earlier will can become valid only if the testator re-executes the old will once again with the full formalities, or, if the testator executes a codicil which shows an intention to revive the old, revoked, will. The Wills Act s 22 deals with revival of wills.

It is possible that the Supreme Court might exercise its power under the Wills Act s 11A to give effect to a will which has been revoked, but which the testator now intends to be his or her will.

Contesting a Will

There are several ways in which a will may be contested. In each case you will need to consult a solicitor.

Is the will valid?

A court may declare that a will is invalid on several grounds:

• the will was not properly signed and witnessed (bearing in mind the Supreme Court's power to grant probate to a will which lacks formalities: Wills Act s 11A;
• the will was superseded by a later will made by the testator;
• the testator did not have the mental capacity to make a will;
• if material in the will has been obliterated by the testator after it was signed partial invalidity may result;
• the will has been revoked by the testator; and
• there are suspicious circumstances surrounding the making of the will -- that is, a person who benefited under the will drafted it, or the testator was unduly influenced, or the victim of fraud, in drawing up the will.

The last--mentioned ground for declaring a will invalid (suspicious circumstances) needs further comment: where a person who has helped in the preparation of a will is also a beneficiary under that will, that person may have to satisfy the court that there was nothing improper in drawing up the will or helping the testator to draw up the will. It is therefore very unwise for a person to help a family member to draw up a will, particularly if the family member is old or weak.

Interpreting wills -- what does the will mean?

Wills, particularly home made wills, are liable to present difficulties of interpretation. The executor or any other person who may be affected by the meaning of the will may ask the court to decide what the will means. Sometimes apparently very simple words create severe problems.

For example, a testator writes in his or her will "I give my piano to my son's wife Ann". this seems clear enough at first glance. say, however, the testator, after making the will, sells the piano and buys another. Does the gift in the will cover the new piano? This is a question which is very difficult to decide. Again, say the testator's son and his wife Ann get divorced after the will is made. Does Ann, the testator's son's ex-wife, take the piano? This is another very difficult question.

The court has very limited power to go behind the will in deciding what the testator actually meant. Further, only the Supreme Court has jurisdiction to interpret wills, so interpretation of a will by the court is very expensive. Two things follow from this:

• wills should be professionally drafted; and
• where a will is difficult to interpret, those involved would usually be well advised to negotiate a compromise if possible.

Family member not adequately provided for

A close family member or person with a moral claim on the deceased can ask the court to order that provision for them be made out of the estate if the provision made for them is inadequate. This ground for challenging the will is called Family Provision. It is very important, and is dealt with in the next Part Family Provision.

Family Provision

The principles relating to family provision are laid down in the Family Provision Act 1969 (ACT) ('the Family Provision Act').

While it is true that a testator is free to leave her or his property to whoever he or she wishes, there is a statutory provision in the ACT and in all other jurisdictions in Australia, which provides that an "eligible person" who has been left "without adequate provision for proper maintenance" may apply to the court for an order making adequate provision for proper maintenance for the eligible person out of the testator's estate. In the ACT an eligible person means the deceased's "spouse", "eligible partner", "domestic partner", child, grandchild, former wife or former husband, stepchild or parent. The definitions of some of these relationships are given in Glossary of Legal Words Used. The deceased's former husband or former wife, or stepchild, are entitled to claim only if he or she was maintained by the deceased immediately before the deceased person's death. Special limitations also apply to parents and grandchildren of the deceased. Ex-nuptial children may claim.

If the Supreme Court is satisfied that the deceased person had a moral duty to make such provision for the applicant, and that the will (or the intestacy laws, if the deceased left no will) does not do so, the court can in effect make a codicil to the will (or modify the operation of the intestacy laws) to ensure that adequate provision for proper maintenance is made for the applicant out of the deceased person's estate. The court's order does not cancel the will, it operates as a codicil to the will and leaves the will operating to the extent that it is unaffected by the court's order. So, for example, a court may order that the testator's estate provide the family home to the surviving spouse where the testator, for reasons of her or his own, left the family home to some other person. The rest of the will would continue to operate as the testator intended. Nevertheless, when the court does make an order, particularly if the estate is not large, the effect is more or less to make shipwreck of the testator's intentions.

If a testator has strong reasons for leaving some close relative out of the will the testator should discuss the matter with the professional will drafter. If there are good reasons for disinheriting a close member of the family, there are steps which can be taken to ensure that that person is in fact excluded from the estate, but the question is a delicate one, and professional advice is needed.

You must make any claims for family provision within 12 months after the grant of probate or letters of administration, unless the court is prepared to grant you an extension. If you feel that you have been unfairly treated by a will of a family member and that you may be an "eligible person" in the sense described above, you should consult a solicitor urgently.

Whether or not an order is made depends on all the circumstances of the case, and even adult children who are able to support themselves frequently secure orders.

Intestacy: The Statutory Order of Inheritance

The Rules

the basic principle is that when a person dies without a will, or leaving a will which disposes of only part of her or his estate, the estate, or that part of it which is undisposed of by any will, is distributed to the next of kin according to rules laid down by statute: Administration and Probate Act ss 44-49N. If there is no next of kin the estate passes to the Territory.

The ACT statutory order follows. Note that the order must be read subject to the comments in Commentary on the Intestacy Rules.

First: spouse and no children

If the deceased leaves a spouse and no children, the spouse is entitled to the whole of the intestate estate. Section 45A provides that where an intestate is survived by both a legal spouse and an eligible partner, the spousal share of the estate is divided according to the length of time the eligible partner lived with the deceased before his or her death. If the eligible partner lived with the deceased continuously for less than five years (immediately before her or his death) the eligible partner will be entitled to share the estate equally with the legal spouse. If the eligible partner lived with the deceased continuously for five years or more (immediately before her or his death) he or she will be entitled to the full estate.

Second: spouse and children

If the deceased leaves a spouse and children, the spouse is entitled:

If the value of the intestate estate exceeds $150,000 the children of the deceased are entitled to share equally the balance of the intestate estate remaining after the spouse has been paid his or her share. Again s 45A will mean the spousal share may be split between legal spouse and eligible partner

Third: children (and further descendants)

If the deceased leaves children but no spouse, the children are entitled to share equally the whole of the estate. (Descendants of predeceased children share in what their parent would have taken).

Fourth: parents

If the deceased leaves no spouse or children or further descendants, but leaves parents, the parents are entitled to share equally the whole of the estate.

Fifth: brothers and sisters (and their children)

If the deceased leaves no spouse, children or parents, but leaves brothers and/or sisters (or descendants of predeceased brothers or sisters), the brothers and/or sisters are entitled to share equally the whole of the estate (descendants of predeceased brothers or sisters take what their parent would have taken).

Sixth: grandparents

If the deceased leaves no spouse, children, parents, brothers and sisters, but leaves grandparents, the grandparents are entitled to share equally the whole of the estate.

Seventh: uncles and aunts

If the deceased leaves no spouse, children, parents, brothers, sisters or grandparents, but leaves uncles and/or aunts (or descendants of predeceased uncles or aunts), they are entitled to share equally the whole of the estate (descendants of predeceased uncles or aunts take what their parent would have taken).

Eighth: Territory may benefit

If no-one satisfies this order of distribution, the estate passes to the Territory.

Commentary on the Intestacy Rules

Definition of terms

"Children", "brothers and sisters", "uncles and aunts", "stepchildren", "foster children" and "adopted children"

The word "children" as used above is given a wide sense. where a child of the deceased has died before the deceased, leaving children, those children take equally the share which the predeceased child would have taken had he or she survived the deceased. In addition the children of a predeceased grandchild who would have shared in the estate had he or she survived the deceased are entitled to that share equally. This process continues ad infinitum. In the ACT this principle applies to children and more remote direct descendants of both brothers and sisters and uncles and aunts of the deceased. "Children" also includes adopted children. However, the word "children" does not include stepchildren or foster children. Stepchildren and foster children, therefore, do not share in an intestate estate of their step parent or foster parent.

"Eligible partner" (defined in s 44 of the Administration and Probate Act) means:

someone, other than the spouse of the intestate, who--

Domestic partner -- is defined in s 169(1) of the Legislation Act 2001 (ACT): "someone who lives with the person in a domestic partnership, and includes a reference to a spouse of the person". The "domestic partner" is entitled to claim family provision and in certain circumstances is entitled on intestacy.

Domestic partnership -- is defined in s 169(2) of the Legislation Act 2001 (ACT): "the relationship between 2 people, whether of a different or the same sex, living together as a couple on a genuine domestic basis".

Value -- "Value" of the estate means net value (after payment of debts) and, where the deceased leaves a spouse, does not include personal chattels, which go to the spouse. Also, the estate does not include property held in joint tenancy. This property passes automatically to the surviving joint tenants.

Relationship of the whole and the half blood

In contrast to the position in New South Wales, in the ACT it is immaterial whether a relationship is of the whole blood or the half blood.

Advancement

In some circumstances a gift by the deceased to any of his or her children within the period of five years immediately before his or her death must be brought into account in ascertaining the entitlement of the children or their direct descendants.

Partial intestacy

The rules governing distribution of the property of a person who dies partially intestate are similar to those laid down for total intestacy.

Ex-nuptial children

The order of distribution applies equally to ex-nuptial children: the position of ex-nuptial children generally is the same as that for children born within marriage: Parentage Act 2004 (ACT) ss 38, 39.

Matrimonial home -- special provisions

The surviving partner is entitled to the intestate's interest in the matrimonial home: Administration and Probate Act ss 49F--49N. In the ACT, if the interest in the matrimonial home is worth more than the partner's interest in the interest according to the normal calculation, the partner is permitted to elect to take the partner's interest in the dwelling house, and does not have to account for the difference: see s 49G(1) "in or towards satisfaction".

If the dwelling house forms part of other assets of the deceased, for example a farm or shop building, the right of the partner to elect to take the deceased's interest in it is exercisable only with the permission of the court.

Examples of how an Intestate Estate will be Divided

Here are some examples of the application of the ACt statutory order: Bear in mind, though, that a successful application under the Family Provision Act (see Family Provision) means the court can vary this order.

First example: An estate of less than $200,000, which does not include any interest in a dwelling house. Total value of the estate is $90,000.

Scenario		Intestacy rules result
(i)	The deceased left a widow and no children	The widow gets the whole estate.
(ii)	The deceased left a widow and three children	The widow gets the whole estate.
(iii)	The deceased, a widower, left three children.	Each child will get a third, i.e., $30,000 each.
(iv)	The deceased, a widower, had three children of whom two are living at his death and one has predeceased him leaving no children.	Each surviving child will get half, i.e. $45,000 each.
(v)	The deceased, a widower, had three children of whom two are living at his death and one has predeceased him. The dead child had two children who survived the deceased.	Each surviving child will get a third, i.e. $30,000 each, and each surviving grandchild will get a sixth, i.e. $15,000.
(vi)	The deceased left a widow and a second eligible partner with whom the deceased had been living for four years immediately before death, and no children.	Both eligible partners share the estate equally.
(vii)	The deceased left a widow and an eligible partner with whom the deceased had been living for six years immediately before death, and no children.	The eligible partner takes the whole estate.

Second example: An estate of more than $200,000, which does not include any interest in a matrimonial home. Total value of the estate is $380,000 including personal chattels valued at $20,000.

Scenario		Intestacy rules result
(i)	The deceased left an eligible partner and no children.	The eligible partner gets the whole estate.
(ii)	The deceased left an eligible partner and one child.	The eligible partner gets: the personal chattels, (i.e. $20,000) + $200,000 (+ interest thereon) + half of the balance, i.e. $80,000 (ignoring the interest). In sum, therefore (ignoring interest) the eligible partner gets $300,000 and the child gets $80,000.

Administration of Estates

Insolvent Estates

If the deceased had more debts than assets (in other words, the estate is insolvent), the estate is usually made bankrupt (in much the same way as is done in the case of a living person who is insolvent) and is administered by a trustee in bankruptcy. If the estate is administered by a trustee in bankruptcy the executor named in the will or the administrator if there is no executor, plays no part in the administration of the estate.

The proceeds of life insurance policies are protected by statute from the insolvency and normally do not form part of the insolvent estate: Life Insurance Act 1995 (Cth) s 205(1).

Solvent Estates -- How Much will Administering an Estate Cost?

Size of the estate

To some extent the cost of getting a grant and administration is proportional to the gross value of the estate (that is, the value of the assets, not counting the debts). Some assets held by the deceased do not form part of the deceased's estate. In particular, the interest held by a joint tenant held does not become part of the estate but automatically on the death of the first dying becomes the sole property of the survivor or survivors: see Glossary of Legal Words Used, under "joint tenancy".

Solicitors

Solicitors' fees are payable out of the estate.

For work done in obtaining a grant of representation and for administering the estate after grant, a solicitor is entitled to charge in the normal way. The solicitor may choose to charge a lump sum amount, or at an hourly rate.

It is unusual for a solicitor be appointed executor in a will. A solicitor who is appointed executor in a will is normally entitled to payment out of the estate in accordance with a specific provision called a charging clause which he or she will usually require to be inserted into the will. This charging clause will entitle the solicitor to substantially greater payments than the solicitor would be entitled to if he or she were merely doing the legal work of administration and carrying out the instructions of a lay executor appointed by the testator. For this and other reasons, it is not usually advisable to appoint a solicitor as your executor.

Public Trustee

The Administration and Probate Act empowers the Public Trustee to wind up deceased estates: see, too, the Public Trustee Act 1985 (ACT).

The Public Trustee's charges are competitive, and may well end up lower than those a solicitor would charge.

If, as is usual, the testator appoints beneficiaries as executors, they then have the choice whether to go to the Public Trustee or a solicitor to have the legal work done, or appoint the Public Trustee. The Public Trustee is experienced and impartial, and this is important if the estate is complex or conflicts between beneficiaries are likely. The Public Trustee in the ACT has a high reputation.

Trustee companies

Trustee companies are permitted by statute to administer estates. Like the Public Trustee their charges are calculated as a percentage of the estate -- usually, somewhere between 4.25 per cent and 5 per cent of gross assets -- that is, before deduction of debts. A trustee company may charge more for the administration of an estate than the Public Trustee or a solicitor would.

Procedure for Administration of Estates

The notes which follow are sufficiently detailed to enable a lay person to administer a simple estate, particularly if he or she is sole beneficiary, without having to hand over the work to a legal professional. (An executor who is one of several beneficiaries, or not a beneficiary at all, should hesitate before undertaking the administration unassisted, as conflicts and criticisms can arise in the course of the administration.)

Introduction to the Task of Administration

The legislative basis for the administration of estates in the Territory is the Administration and Probate Act, the Wills Act, the Trustee Act 1925 (ACT) ('the Trustee Act') and the Court Procedures Rules 2006 (ACT) ('the Court Procedures Rules') Part 3.1 rr 3000 - 3120. Mason and Handler and Geddes, Rowland and Studdert are used by the Supreme Court in the ACT to fill in gaps in the local practice. There is no book which deals specifically with ACT practice.

The orderly devolution of property on death is an important feature of civilised society. There are many possible methods by which this orderly devolution can be secured. The approach adopted in Australia is basically as follows: estates of deceased persons are usually administered by private individuals, normally with the assistance of a solicitor or the Public Trustee. There is a minimum of official interference in the process of administration, but in most cases the person administering the estate (the executor or administrator -- the "personal representative") requires the official authority of the Supreme Court in order to perform the task of administration. This official formal authority is the grant of representation (grant of probate if the grant is to an executor named in the will, or grant of letters of administration if the court has to choose and appoint someone to administer the estate, as the case may be -- see the descriptions of various forms of grant at Glossary of Legal Terms Used).

Simple estates can be administered by a lay person (particularly if he or she is the sole beneficiary), and a person named as executor in the will need not hand the administration over to a solicitor, the Public Trustee or a trustee company if he or she does not want to do so. However, the usual and generally the most sensible thing to do (particularly if there are a number of beneficiaries to whom the executor is answerable, and who will be looking critically at what the executor is doing) is to get a professional person such a solicitor or the Public Trustee to do the administration. The executor named in the will (or the next of kin) can consult a solicitor, the Registrar of Probates in the Supreme Court Building or the Public Trustee soon after the death to get advice and direction about how to proceed. A solicitor or the Public Trustee will usually do the work of administering the estate perfectly efficiently and more cheaply than a trustee company.

If you have been appointed executor and you are looking for someone to do the work of administration for you, you should not be afraid to ask solicitors or the Public Trustee to give you an idea of what they will charge, and to shop around a little. Choosing a good solicitor is as difficult as choosing a good doctor or dentist, and the best way to find out who is good is to ask an independent person who has knowledge or experience.

The Person Responsible for the Administration: the Personal Representative

See "personal representative" at Glossary of Legal Terms Used.

The term "personal representative" includes "executors" and "administrators". It is important to distinguish clearly between the two. An executor is a person appointed in a will to administer the estate of the deceased person; an administrator is a person appointed by the court to administer the estate -- usually because there is no will, or because no person appointed by the will is able or willing to undertake the executorship.

Why are they called "personal representatives"? Because they represent the person of the deceased -- they carry on the deceased's court actions after his or her death; they can be sued by the deceased's creditors.

The office, powers and duties of the personal representative after grant is discussed below at The Task of Administration. Personal representatives have a very particular function: to administer the estate; and their obligations flow in part from this fact. Personal representatives are a particular kind of fiduciary (see Glossary of Legal Terms Used , under "fiduciary"), and some of their obligations flow from this fact too.

Passing over the named executor

In special circumstances the court will pass over the executor named in the will. However, this is only done in most unusual circumstances, as the court will make strenuous efforts not to interfere with the testator's choice. Thus, the Court in O'Connell v Shortland (1989) regarded the named executor as not being trustworthy or upright in his dealings with trust property, and had no doubt that the named executor, a friend of the testator, would conflict with a beneficiary under the will (the testator's wife). The Court did not actually refuse to grant probate to the named executor; instead it granted probate to the named executor "on the strength of his undertaking that he will join in an application after the grant has been formally made, for the substitution of another executor and trustee" (at p 355).

Outline of the Task of Administration

In outline, the executor or administrator should:

(a) deal with funeral arrangements in consultation with the family;

(b) decide whether or not the will has to be formally proved -- that is, whether it will be necessary to apply for a grant of probate of the will. This depends on the size of the estate and the assets in it. If the estate contains land, substantial bank accounts, substantial insurance policies or substantial blocks of shares it will be necessary for the will to be formally proved. (Property, which includes both land and personal property such as bank accounts and chattels such as cars and furniture, held by the testator as a joint tenant does not form part of the estate, but goes automatically by survivorship to the other joint tenant: see Glossary of Legal Terms Used , under "joint tenancy";

(c) advertise his or her intention to apply for a grant of probate of the will (if this is required). The advertisement will ask creditors to notify the executor of claims against the estate;

(d) ascertain the assets and liabilities of the estate;

(e) make an inventory and keep detailed accounts;

(f) gather in the assets and protect them;

(g) pay the debts of the estate; and

(h) distribute the net assets according to the will or the intestacy rules as the case may be.

The executor may apply for executor's commission of up to 5 per cent of the value of estate. Commission (usually granted at a rate much lower than 5 per cent) will only be granted if the estate accounts are presented to the court, and are accepted as being in order. Usually lay executors do not seek commission.

The Task of Administration

A named executor who has not intermeddled in the estate has no duties in relation to the estate and cannot be compelled to act. The named executor can renounce; or reserve the right to come in and prove the will later; or, if another executor is appointed with them, allow that executor to take on the task of administration; or the executor can hand over the task of administration to a professional executor (such as the Public Trustee). Ultimately, the executor can simply do nothing and wait for others to take control, though this course is unhelpful and is not advisable.

The situation is different if an executor has intermeddled in the estate. Intermeddling means acting in such a way as to show that the person has taken on the role of executor. Selling estate assets would normally be intermeddling. Even after intermeddling, the named executor cannot be compelled to act in the administration as a whole, but can be required to account for the property in relation to which he or she has intermeddled. The limitation placed by the law on the intermeddling executor is that he or she is prevented by the intermeddling from renouncing the executorship except with the consent of the Supreme Court. Note that any person who intermeddles in an estate is bound to keep detailed accounts of what he or she has done.

The personal representative has the task of administering the estate after the deceased's death. The main elements in this task are (after getting a grant of probate or letters of administration if necessary) to carry out the following duties (compare the Succession Act 1981 (Qld) s 52)).

To arrange the funeral

The executor named in the will is the proper person to arrange the funeral. This should be done in consultation with close relatives, and any decision should be governed, as far as possible, by the known wishes of the deceased. In appropriate circumstances a close relative or even a stranger is entitled, even before grant, to arrange for the disposal of the deceased's body: see Arranging the Funeral.

To protect the assets

The named executor (or the person who will become the administrator) should take steps to protect estate assets urgently should this become necessary. However, as a person who intermeddles in the estate may lose the right to renounce, caution should be exercised -- see The Task of Administration and Administering an Estate without a Grant.

To get a grant if necessary

If a grant is going to be needed, the person who will be applying for it should get ready to do so: on the need for a grant, see Administration of Estates with or without a Grant, and on getting a grant see Getting a Grant -- Practical Procedures.

To get control of the assets (sometimes called "reducing the estate into possession")

This means to make an inventory and to be prepared to exhibit it to the court, and to take care of and to get control of the assets -- for example, to recover (by legal action if necessary) debts due to the deceased. The personal representative is under a duty to open an estate account and put money paid to the estate into this account, and not into the personal representative's own personal account. This reflects the fact that the personal representative is a fiduciary.

To pay the duties, administration expenses and debts

See Duty to discharge estate liabilities: solvent estates.

To distribute the net estate

The personal representative then has to distribute the net estate (after making provision for the administration expenses and debts) to beneficiaries under the will or intestacy laws or to trustees to be administered for minors or according to the terms of the will, together with any interest payable. See [33.10.2.3] Duty to distribute net assets.

To account for the administration

See Duty to account.

To deliver up (hand back to the court) the grant of probate or letters of administration if required by the court to do so.

This will not happen unless the court revokes the grant for some special reason.

Will the Lay Person Administer the Estate Personally, or get Professional Help?

The personal representative normally applies to a professional person, such as a solicitor, trustee company or the Public Trustee for help in winding up an estate. Any such person will in all probability have to take control of the administration of the estate. A lay person may decide to do the administration without the assistance of a professional person. The notes which follow are written for the professional person, say a solicitor, who has to administer an estate, but the points and suggestions made apply equally to a lay person who decides to administer the estate without professional help. Often nowadays, the solicitor and lay person may agree that the solicitor will do most of the tasks but the lay person may undertake some tasks in order to save costs and time.

If the lay person named as executor, or entitled to a grant of letters of administration, decides to consult a solicitor, the solicitor will determine whether a grant is required or not. Then the solicitor will, through the personal representative, apply for a grant (if necessary), collect, protect and take into possession the estate assets (see To get control of the assets (sometimes called "reducing the estate into possession"), discharge liabilities and distribute the balance. It is proposed at this stage to outline the practical procedures used by a solicitor who is asked to act. Note that the Registrar and the Public Trustee are prepared to give practical advice to solicitors (as well as to lay people) who are administering estates. The Registrar's readiness to give advice, however, relates to procedure only, and not to legal advice on matters such as the interpretation of the will.

Administration of Estates with or without a Grant

Simple estates can often be administered without a grant, although a grant is usually necessary.

Need for a grant

The person who will wind up the estate will have to decide at an early stage whether it is necessary to apply for a grant of probate or letters of administration.

A person without a grant can effectively administer certain estate assets, and if the estate consists only of such assets, a grant is not legally required. Assets which can be administered without a grant include goods (such as motor vehicles, household goods, jewellery, paintings and so on), modest bank accounts and the proceeds of small insurance policies. There are simple procedures for transferring shareholdings: Corporations Act 2001 (Cth) ss 1071A, 1071B, 1072A (replaceable rule) and 1072E.

Assets in the estate which will require a grant include real property (land) (except where the deceased was a joint tenant), substantial bank accounts, insurance policies, most shareholdings and other interests in corporations. Inquire from the institution concerned.

Other factors which would make it advisable not to proceed without a grant are doubt about the whereabouts of a will, the validity of the will or its meaning, doubt about the right of the executor or the administrator to administer, the possibility of litigation by or against the estate, or disharmony between the beneficiaries. Litigation normally also requires a grant. In the ACT, the executor should get a grant if there is a possibility of a family provision claim, because the time within which the application must be made (12 months after grant) does not start to run until the grant is made: Family Provision Act s 9. The advice of a professional should be obtained. A lay person who is administering an estate should get professional advice in these situations.

Whether a grant is required or not is therefore a practical question. Most small estates are administered without a grant, and this is the correct and usual procedure. However, the advice of the Registrar or the Public Trustee or a solicitor is normally obtained, so that major pitfalls are avoided by the lay person administering an estate.

Administering an Estate without a Grant

Certain risks and liabilities are involved

Some of the statutory protections available to the personal representative who has taken out a grant are not available to the person acting without a grant, and the person acts at her or his own risk in administering the estate without a grant. If he or she causes any loss to the estate, he or she is personally liable and has no right to indemnity, except to the extent that he or she is protected by advertising her or his intention to distribute: Administration and Probate Act ss 64, 65. This is not a problem if there is no risk of liability, for instance if the estate is solvent and the person acting without grant is the sole beneficiary.

Keeping the administration moving

If the named executor is slow about taking out a grant, he or she can be cited to take out a grant or to renounce the executorship: Administration and Probate Act s 25; Court Procedures Rules r 3114, and see r 3115. The named executor can be cited even if a person without a grant has started administering the estate. If the person acting without a grant is the rightful executor he or she cannot renounce without the consent of the court -- Will of Lyndon (1960). There are further mechanisms to keep the administration moving. Some are appropriate where no grant has been issued; some are appropriate where a grant has been issued -- see Administration and Probate Act ss 24, 26, 32 and 61. See too Duties of the Personal Representative.

Power to delegate; powers of the public trustee to administer

The person named in the will as executor, or the person entitled to administration of the estate when there is no named executor, may delegate to the Public Trustee or a trustee company and so avoid taking out a grant or otherwise becoming involved in the administration of the estate. The Public Trustee has power to administer or take over the administration of estates. See generally Glossary of Legal Words Used, Choice of executors and trustees, and Public Trustee.

Administering an Estate with a Grant of Representation

The personal representative

The task of the personal representative is to administer the estate according to law. Before grant the personal representative has no duties or privileges, though, as described in Administering an Estate without a Grant, can effectively administer certain estates. If the executor named in the will fails to take out a grant he or she may be cited to take out a grant or to renounce: see Keeping the administration moving.

Effect of a grant

The grant constitutes recognition by the court of the personal representative's right to administer the deceased's estate. The grant also vests the estate assets in the personal representative.

After grant the personal representative has full authority to act in relation to the estate, and with the grant the personal representative will be able to deal effectively with all estate assets. After grant, the personal representative has valuable statutory and common law protection: see Certain risks and liabilities are involved in Duty to distribute net assets.

Getting a Grant -- Practical Procedures

Small estates

Simplified procedures for taking out a grant exist for estates under $150,000: Administration and Probate Act ss 87C ff.

Forms and precedents -- obtaining and lodging

The Registrar will issue a set of precedents on application. The precedents are useful where a simple grant is being sought, but they do not deal with more complex applications such as applications for limited grants, or applications where a sole executor has renounced, or has predeceased the testator. Some legal stationers in the ACT will provide and even lodge documents -- see "Legal Stationery" or "Title Searchers" in the Yellow Pages.

The will; and searching for the will

A. Lost will

If you believe that the testator may have made a will, but you are not sure, or if you know there was a will but you can't find it, you should consult a professional person such as a solicitor or the Public Trustee. When searching for a will, inquiries should be made with the deceased's bank, solicitor and insurance company. The Public Trustee and the Registrar of Probates should also be checked. If no will is found, inquiries should be made in places in which the deceased previously lived.

B. Existing wills

If you are going to administer the estate yourself, and you have the testator's last will in your possession, should examine the will to determine whether:

(a) a beneficiary or the spouse of a beneficiary is a witness to the will;

(b) it is duly executed by the testator and two witnesses;

(c) beneficiaries and executors are accurately described and identified, and if it is generally clear;

(d) an executor has been named in the will;

(e) the executor is identified and willing to act. If so, he or she will be required to sign the application for probate and other documents; and

(f) its provisions create no legal problems.

If your examination of the will reveals any problems, you should consult a professional person.

C. Informal wills (documents which may have been intended to be wills, but which are not properly executed)

Since the Supreme Court has the power to admit to probate documents which do not comply with the formal requirements for wills, persons applying for a grant are required to produce to the Registrar informal documents which may have been intended by the deceased to be testamentary. Such documents may include draft wills, letters and instructions for wills: Wills Act s 11A.

D. Particulars of death

The person applying for the grant will have to get the death certificate. The death certificate is not available until after the funeral and will be issued even where there is a coronial inquest pending. Usually a doctor who attended the deceased at death, or, if necessary, a member of the family will be in a position to make an affidavit of death.

E. Did the deceased die intestate?

The person administering the estate will have to identify next of kin, and search for:

• any will (including informal testamentary documents);
• marriage certificates; and
• birth certificates.

Application for a grant

Once it is decided that a grant is necessary, the major effort is directed at getting that grant. However, proper steps must be taken to protect assets as necessary even before grant.

A. Grant of probate

Documents required

When 14 days have elapsed after publication of notice of the intended application (Court Procedures Rules r 3006 and approved form 3.7), the documents you must file in support of the application are:

Document			Court Procedures Rules Part 3.1	Form(s)
1	Application for Probate		r 3005	Form 3.1
2	Affidavit of Applicant for Probate with supporting documents:		r 3010	Form 3.11
		Death Certificate;
		Informal will of which probate is not being sought;
		Tear Sheet (evidence of Notice of Intended Application);	rr 3006, 3010	Form 3.7
		Summary of responses to Notice of Intended Application;	r 3010	Form 3.11
		Certificate evidence (Birth, Marriage); and
		Statement of Assets.	r 3010(6)(c), 3021(3)	Annexure C to Form 3.11
3	Affidavit of Search		r 3011	Form 3.14
4	Affidavit of Attesting Witness, if necessary		rr 3013 & 3030-3035
5	Original Will of deceased
6	Probate (in duplicate)		r 3005	Form 3.4
7	Affidavit of Delay -- if applying more than six months after death		r 3010(1)(e)

The Statement of Assets (that is, the inventory) (required by Court Procedures Rules r 3010(6)(c)) is normally annexed (and deposed to) with the affidavit of the applicant. Note that the inventory contains a statement of assets but not of liabilities. The court is interested only in the gross value of the estate -- the total value of the assets -- and not the net value.

Preparation of the documents required for a grant of probate

For a grant of probate or letters of administration, the applicant must collect and prepare the documents needed for an application (listed above).

(a) Application for Probate Form 3.1. This must be signed by the applicant or the applicant's solicitor. You do not need to serve the Application.

(b) Affidavit of the Applicant for Probate: see r 3005(2)(b) and Form 3.11.

In the Affidavit of the Applicant the applicant identifies the will (normally the applicant identifies the signature and handwriting of the testator), asserts that the applicant is the person named in the will, that the applicant is over 18 years old and other matters detailed in the ACT Court Procedures Rules rr 3005, 3010(3)(b). The rules provide that the applicant for probate must include an affidavit setting forth, if that is the case, that "the applicant is unaware of the existence of any document, or part of a document, (other than the will the subject of the application) purporting to embody testamentary intentions of the testator". This is necessary because the dispensing provision in the Wills Act s 11A allows the court to admit to probate documents which embody the testamentary intentions of the testator even though that document does not comply with the proper formalities.

The original certificate of death must be lodged with the court for sighting by the Registrar, but a certified copy of the certificate may be annexed to the affidavit. The Registrar will return the original once sighted. This also applies to any other certificates which may need to be annexed to the Applicant's affidavit.

If there are problems with the validity or the text of the will, other affidavits will certainly be required.

(i) Pinholes or paperclip marks: if there are pinholes or paperclip marks or traces of sealing wax an affidavit will be required to explain what was attached (the possibility is that another testamentary document was, for example a codicil, or a document incorporated by reference).

(ii) Will signed in different inks: if different inks have been used by the testator and witnesses, it suggests that there may have been a breach of the formal requirements -- a signature may have been added later, perhaps. Affidavits from attesting witnesses will be required.

(iii) Informal wills: Informal documents which may contain testamentary intentions of the testator must be brought before the court (because they may be admitted to probate under the, Wills Act s 11A, and those affected by such documents must be notified: see Court Procedures Rules rr 3005, 3010.

(c) Tear Sheet (evidence of notice of intended application). Court Procedures Rules r 3006 requires the applicant to publish notice of intention to apply for a grant. Form 3.7 is used. You must be careful to deal accurately in the Notice with matters such as the different spellings of the testator's name, or other names he or she is known by, place of residence, occupation and the naming the executors in the will, because there must be no discrepancies between the Notice and the applicant's affidavit.

(d) Statement of Assets: Form 3.11 includes an annexure of Inventory of Assets. The inventory of assets should set out the gross assets of the estate. The practice is to lodge this inventory with the Application. The Inventory should include details of ACT assets only. You do not include jointly owned assets or life/superannuation policies that will be paid directly to a nominated beneficiary and not to the executor, and you do not include liabilities.

(e) Affidavit of Search: the affidavit of search must be prepared: r 3011 and Form 3.14. "Search" is for prior grants, for caveats against grants and for a will or later will, as the case may be. Make sure the search is after the expiry of 14 clear days from the publication of the Notice of Intended Application. The search should be done on the day of filing the application. The Registrar will require much wider advertising where the applicant is relying on the legal presumption of death where someone has been absent for seven years, and has not communicated with those people he or she would be likely to have contacted.

(f) Affidavit of Attesting Witnesses: if the will contains an inadequate attestation clause or no attestation clause, you must file affidavits from attesting witnesses. An inadequate attestation clause means one that does not correctly state the required formalities for a will, and state that those formalities were complied with: Wills Act s 9; Court Procedures Rules rr 3030, 3031.

(g) Original Will of the deceased: to comply with rr 3013 and 3030-3035, and conform with the first paragraph of the Applicant's affidavit, you must have the applicant and witness to the applicant's affidavit sign the original will in the margin. You lodge the will as a separate document.

(h) Probate: you must prepare Form 3.4 and lodge it in duplicate; and you must annex a copy of the will to Form 3.4: r 3005.

(i) Affidavit of Delay: you must file an affidavit explaining the reasons for delay if you are lodging the application more than six months from date of testator's death: r 3010(1)(e).

B. Grant of Letters of Administration on Intestacy

Documents required

Order 72 Rule 14 of the Supreme Court of the ACT requires affidavits in accordance with Forms 3G and 3H when applying for letters of administration. In an uncontested grant for letters of administration on intestacy, the following documents are usually prepared and lodged:

Document			Court Procedures Rules Part 3.1	Form(s)
1	Application for Letters of Administration		r 3005	Form 3.3
2	Affidavit of Applicant for Letters of Administration with supporting documents:		r 3005	Form 3.13
		Death Certificate;
		Informal will of which probate is not being sought;
		Tear Sheet (evidence of Notice of Intended Application);	rr 3006, 3010	Form 3.9
		Summary of responses to Notice of Intended Application;	r 3010	Form 3.13
		Certificate evidence (Birth, Marriage); and
		Statement of Assets.	r 3010, 3021(3)	Annexure C to Form 3.13
3	Consent to Administration		r 3011	Form 3.10
4	Administration Bond (if required by Registrar)		r 3045	Form 3.21
5	Affidavit of Search		r 3011	Form 3.14
6	Letters of Administration (called "engrossment") in duplicate		r 3005	Form 3.6
7	Affidavit of Delay -- if applying more than six months after death		r 3010(1)(e)

In an application for letters of administration, the applicant will have to prove that he or she has the largest interest (basically, the largest share of residue) -- so, original marriage and birth certificates necessary to prove relationship with the deceased will be required.

Bear in mind that not all grants of letters of administration are made pursuant to an intestacy. A grant of letters of administration will be made in any case where there is no executor able and willing to take a grant -- for instance, letters of administration with the will annexed (cum testamento annexo (abbreviated to cta)) may be made if there is a will, but no executor able and willing to take the grant. Note that we have not provided a list of documents required for a grant of administration with the will annexed: you will be able to work them out from the lists for grants of probate and of administration.

Letters of administration while the executor remains a minor may be granted if the executor named in the will is a minor.

Getting a grant of administration is rather more complicated and more drawn out than obtaining a grant of probate. For this reason (and because an administrator may have to provide an administration bond if there are minor beneficiaries: rr 3045-3053. The bond may be dispensed with by the Registrar: r 3046. Executors never have to provide a bond) letters of administration incur higher administration costs, it is not kind to those who come after you to die intestate and without appointing two executors (more can be a nuisance, and one is enough if the executor is the Public Trustee or a trustee company).

Preparation of the documents required for a grant of letters of administration

For a grant of probate or letters of administration, the applicant must collect and prepare the documents needed for an application (listed at [33.9.9.4] B. Grant of Letters of Administration on Intestacy - Documents required).

The table above lists the documents required for a grant of letters of administration on intestacy. It is very similar to obtaining a grant of probate.

Procedure for a grant

When an application is lodged with the Registrar it is examined in the Registrar's office to see whether it complies with the requirements of the Administration and Probate Act and the Court Procedures Rules. If the application is satisfactory, it is sealed and dated. If not, then further information is "requisitioned", and finally, when all is correct, it is stamped and dated. (A grant thus made by the Registrar is called a grant "in common form".) The Registrar may refuse to make the grant requested, giving reasons in writing, and the applicant then makes the application to the Supreme Court -- Court Procedures Rules r 3113. (A grant made after oral evidence before the Supreme Court is called a grant "in solemn form".)

The grant of probate or administration is then made and numbered and the seal of the court is affixed.

Procedure for Winding Up the Estate

Powers of the Personal Representative who Obtains a Grant

After a grant the personal representative has all the powers necessary to carry out his or her duties and to enable the estate to be administered according to law. The powers given by law, and any powers given by the will, may, if required, be extended by the court: ss 81-84 of the Trustee Act.

Only four powers will be referred to here. Others are implicit in the personal representative's duties.

• Power to Delegate: a personal representative who has taken out a grant may appoint the Public Trustee, a trustee company or a solicitor to discharge all or part of her or his duties as personal representative.
• Power to Sell: the personal representative has the power to sell real and personal property in the estate for the purposes of administration. The power of sale is discussed more fully at [33.10.2.2] B. Payment of debts due by the estate, at "Sale of estate assets and administration of assets for the payment of debts: solvent estates".
• Power to Lease and Mortgage: the power to lease or mortgage is dealt with in the Administration and Probate Act ss 50 and 51.

Duties of the Personal Representative

The duty of the executor is, in principle, to protect the estate and to carry out the terms of the will in accordance with law. The duty of the administrator is to protect the estate and to administer the estate in accordance with law, and to divide the net estate in accordance with the intestacy law (or in accordance with the will if there is one). Sometimes the testator chooses as executor a person whose own interests conflict with his or her duties as executor. This would occur, for instance, where the executor, given very little under the will, is a claimant for family provision. Such an executor should seek professional advice, and, if the conflict cannot be resolved by negotiation, the advice and direction of the court should be sought: see Court Procedures Rules r 2701, or Trustee Act s 63.

In more detail, the duties of the personal representative are to:

(a) collect and get control of the assets:Collecting and taking control of the estate assets ;

(b) discharge the estate liabilities: Duty to discharge estate liabilities: solvent estates

(c) distribute the net assets: Duty to distribute net assets;

(d) account for his or her administration: Duty to account; and

(e) deliver up the grant if and when required by the court to do so.

The first four of these will be dealt with in order.

Collecting and taking control of the estate assets

A. Protecting estate assets; urgency

Urgent steps may be taken by any interested person, whether named in the will as executor or not, to protect estate assets, but professional advice should be sought. In an emergency, the best step is to telephone the Public Trustee. It may be advisable to seek an emergency grant for the purpose of collecting and protecting the assets(ad colligenda bona) where court authority is needed urgently. The personal representative should not allow relatives to swoop on the deceased's assets and carry them off, and wasting assets must be dealt with promptly. An executor (or close relative or even a stranger) is entitled, even before grant, to care for her or his animals and sell perishables.

B. Inventory and protection of assets

Making an inventory of all the deceased's assets and liabilities is an essential step in taking control of the estate. (The inventory of assets has already been prepared for the Application for Grant.)

Duty to discharge estate liabilities: solvent estates

We are concerned here with solvent estates: if the estate is insolvent it should be administered under the Bankruptcy Act 1966 (Cth). Professional advice should be sought, and the work of administration is done by the trustee in bankruptcy rather than the executors. Proceeds of life insurance policies are generally protected against creditors of an insolvent deceased estate.

A. Funeral accounts

Banks will, before grant, apply funds held by them to funeral accounts on production of the account, a copy of the will and a death certificate.

B. Payment of debts due by the estate

The personal representative is obliged to pay the deceased's debts as well as debts which the personal representative incurs during administration.

Sale of estate assets and administration of assets for the payment of debts: solvent estates

The personal representative has an overriding power to sell any or all assets for the payment of debts or for the administration generally. The personal representative would not usually, and should not, exercise his or her powers of sale without consulting beneficiaries. The decision remains with the personal representative, however. The net estate of the person who has died has to be distributed among his or her beneficiaries according to the will. The will gives certain classes of beneficiaries a claim to estate assets which takes precedence over the claims of other classes of beneficiaries. The testator is free to dictate the order in which assets are to be applied for the payment of debts, but if he or she does not, then the law lays down a statutory order of application of assets for the payment of debts: Administration and Probate Act 1929 s 41C and 4th Schedule Part 1.

Duty to distribute net assets

Once provision has been made for debts, or they have been paid, the personal representative is under a duty to distribute the net assets to the beneficiaries or to trustees as the case may be. The personal representative will be personally liable for an incorrect distribution, and, if he or she pays improperly, he or she will not be indemnified unless he or she has acted strictly within the terms of the Administration and Probate Act ss 63, 64, 65, 66 and 67, the Family Provision Act s 21 (if appropriate) and the Trustee Act s 60. These sections require that the personal representative advertise her or his intention to distribute.

The personal representative may distribute property mentioned in the will as specific gifts, and even proportions of residue before payment of debts, if it is clear that creditors will not be prejudiced and the personal representative has sufficient assets in hand to cover all claims. It follows that there will often be more than one distribution to beneficiaries. However, since the personal representative will have to be careful not to distribute assets which might be needed for the payment of debts, the procedure adopted is not to distribute assets or funds until the personal representative is quite sure that:

(a) the asset(s) will not be needed for the payment of debts;

(b) the distribution is in accordance with the terms of the will or the intestacy law as the case may be;

(c) the asset(s) will not be needed to satisfy a claim for family provision; and

(d) the required notice of the personal representative's intention to distribute has been published in good time in advance.

The personal representative does this at her or his own risk, however, and if it turns out that the personal representative paid a beneficiary (or creditor) too much the personal representative will be personally liable for the resulting shortfall. So, the personal representative who intends to distribute before all debts are paid should, in addition to advertising her or his intention to distribute, require an indemnity from the prematurely paid beneficiary.

Duty to account

Any person interested in the estate can require the personal representative to provide an itemised account of the administration so far. Thus, it was held in Spellson v George(1987) that even a potential object of the exercise of a discretionary power has the right to have the trustee account for his or her management of the trust -- that is, to seek and obtain from the trustee information concerning the trustee's management of the trust fund. The exercise of that right is not dependent upon an allegation of fraud or other breach of trust.

The personal representative does not have to submit accounts to the Registrar unless required to do so, or he or she is applying for commission.

Departing from the Terms of the Will

In principle, the duty of the executor is to carry out the terms of the will, and it is generally a breach of trust to do otherwise. This is true even if the terms of the will are onerous and inconvenient. There are, however, a few situations in which the terms of the will may properly be departed from:

(a) where the condition or provision in the will is legally void or unenforceable;

(b) where the terms of the will express no more than a wish;

(c) where the court authorises a departure from the terms of the will. This may happen when the executor requires powers of administration which are not given by the will;

(d) where all the beneficiaries are of full age and capacity and consent to a distribution different from that provided for in the will. This agreement is called a "Deed of Family Arrangement". Precedents for Deeds of Family Arrangement will be found, with discussion, in the Australian Encyclopaedia of Forms and Precedents, Vol 6 under the heading "Compromises and Releases".

In all these situations professional advice should be obtained.

Commission

The Supreme Court is empowered to allow a commission or percentage to executors, administrators and trustees for their pains and trouble. Applications for commission are heard by the Registrar (on notice of motion), who will award commission at her or his discretion up to a maximum of 5 per cent (normally 2½--3 per cent is allowed) of the gross assets (that is, the value of the assets before deducting debts): see Administration and Probate Act s 70. Section 70 as read with Court Procedures Rules r 2748 makes it clear that commission will not (without a special order of court) be awarded until the applicant has had the estate accounts passed by the Registrar. Having the accounts passed can be a long and arduous process.

Funerals, Burial and Cremation in the Act

Sources of the Law Governing Funerals, Burial and Cremation in the ACT

The main pieces of legislation governing funerals, burial and cremation are the following:

• The Coroners Act 1997 (ACT) (Coroners Act);
• the Births, Deaths and Marriages Registration Act 1997 (ACT)(BDMA);
• the Births, Deaths and Marriages Registration Regulation 1998 (ACT) ( BDMReg);
• the Transplantation and Anatomy Act 1978 (ACT);
• the Cemeteries and Crematoria Act 2003 (ACT) (CCA);
• the Cemeteries and Crematoria Regulation 2003 (ACT) (CCreg);
• the Administration and Probate Act 1929 (ACT) ('the Administration and Probate Act'); and
• the Public Health Notifiable Conditions Determination 2005 and the Public Health (Reporting of Notifiable Conditions) Code of Practice 2006 (No 1) made under the Public Health Act 1997 (ACT).

It is worth noting that the CCA replaced and repealed the Cremation Act 1966 (ACT) and the Cemeteries Act 1933 (ACT) and the regulations made under those Acts.

Procedure before the Funeral

Medical Practitioner's Duty to Give a Medical Certificate

A. Stillborn child

If a child is stillborn, the doctor responsible for the care of the mother must give the Chief Executive Officer (CEO) of the hospital where the mother was admitted a medical certificate certifying the cause of foetal death: BDMA s 5(4). The CEO then forwards this to the Registrar-General of Births, Deaths and Marriages (the Registrar) together with the notification of birth.

A stillborn child means a child of at least 20 weeks gestation or, if it cannot be established reliably whether the period of gestation is more or less than 20 weeks, with a body mass of no less than 400 grams at birth, who exhibits no sign of respiration or heart beat, or other sign of life, immediately after birth: BDMA Dictionary.

If the mother has not been admitted to hospital within 24 hours after the birth, the doctor or midwife caring for her must forward this medical certificate directly to the Registrar: BDMA s 5(1).

B. Death other than stillborn child

When a person dies, the medical practitioner who attended during the dead person's last illness, or who viewed the body must give the Registrar notice of the death and cause of death within 48 hours after the death: BDMA s 35. BDMReg Regulation 4 sets out the requirements for the notice.

C. Death by infectious disease

The Public Health Act 1997 (ACT) s 102A(2) provides that a doctor must notify the chief health officer of certain deaths:

(2) A doctor commits an offence if--

(a) the doctor has reasonable grounds to believe that a dead person had, or may have had, a notifiable condition at the time of death; and

(b) the person was a patient of the doctor immediately before death, or was examined by the doctor after death; and

(c) the doctor fails to notify the chief health officer, in accordance with the applicable code of practice, about the person's notifiable condition as soon as practicable.

Maximum penalty: 5 penalty units.

General duty to report death

The Coroners Act s 77(1) imposes a duty to report death to the coroner or a police officer:

(1) A person commits an offence if the person--

(a) knows that a death has happened; and

(b) has reasonable grounds to believe that--

(i) a coroner would have jurisdiction to hold an inquest in relation to the death; and

(ii) the death has not been reported to a coroner or a police officer; and

(c) does not report the death to a coroner or a police officer as soon as practicable after becoming aware of it and having the reasonable grounds mentioned in paragraph (b).

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

The police in turn have a duty to inform the coroner: Coroners Act s 77.

Inquest by the coroner

The Coroners Act s 13 provides that an inquest must be held if a person:

• is killed;
• is found drowned;
• dies, or is suspected to have died, a sudden death the cause of which is unknown;
• dies under suspicious circumstances;
• dies during or within 72 hours after, or as a result of- (i) an operation of a medical, surgical, dental or like nature; or (ii) an invasive medical or diagnostic procedure; other than an operation or procedure that is specified in the regulations to be an operation or procedure to which this paragraph does not apply;
• dies and a doctor has not given a certificate about the cause of death;
• dies not having been attended by a medical practitioner at any time within the period commencing three months before the death;
• dies after an accident where the cause of death appears to be directly attributable to the accident;
• dies, or is suspected to have died, in circumstances that, in the opinion of the Attorney-General, should be better ascertained; or
• dies in custody.

In most cases the coroner has a discretion to dispense with the holding of a full inquest if he or she thinks it unnecessary after making preliminary inquiries, but the coroner cannot make that decision if the death occurred in custody or within 72 hours of an operation: Coroners Act ss 13, 14. A post mortem examination may be ordered: Coroners Act ss 20-33.

The previous Coroner's Act 1956 (ACT) conferred a right on the family of the deceased person to request an inquest. The present Act confers no such right. However, the immediate family of the deceased can make certain requests of the coroner. They can ask to see the body, inspect the scene, have their medical practitioner present at any post-mortem. If the coroner refuses any of these requests, the family can ask the Chief Coroner to reconsider the decision.

If an inquest is held, witnesses or relatives often wish to have legal representation at it. The coroner may give leave to any witness or person who has sufficient interest to appear and cross-examine either in person or by a legal representative: Coroners Act s 42.

In the ACT the coroner sits alone: Coroners Act s 4(2). The object of the inquest is to determine the identity of the dead person, when and where death occurred, the manner and cause of death; and to determine if there is a prima facie case against any person for an indictable offence: Coroners Act ss 52 and 53. An inquest is not a trial, however, and the coronial inquiry is not bound by the rules of evidence: Coroners Act s 47.

Once the inquest is completed, members of the immediate family of a deceased for whom an inquest (other than an inquest into a death in custody) has been held may request a copy of the coroner's findings. Contact the Coroner's Court Registry on (02) 6217 4231 or write to: The Registrar, Coroner's Court, GPO Box 370 Canberra ACT 2601.

In coroner's cases the body is taken to the morgue in Kingston. A relative may be asked to identify the body there, and the usual procedure is that they are shown into a room with a curtained window, the curtain is drawn back and the body is seen through the window. (In theory there is no reason why the relative could not see the body directly).

Certificate under the Coroners Act: burial does not have to await the inquest but may take place as soon as the coroner issues an authorisation stating that there is no reason why the body should not be buried or cremated or taken out of the Territory: Coroners Act s 16.

Arranging the Funeral

Who organises the funeral?

If there is a will which names an executor, then he or she is normally entitled to custody of the body and has ultimate control of its disposal. As to disputes over possession of the body for disposal, see Reid v Love And North Western Adelaide Health (2003) SASC 214; Burrows v Cramley (2002) WASC 47; Smith v Tamworth City Council (1997) 41 NSWLR 680. The next of kin are not obliged to arrange a funeral. If there is no executor or relative interested, then a friend may organise the funeral without necessarily becoming obliged to administer all the dead person's affairs. See, however, Who pays for the funeral?. In the absence of any interested person the hospital usually refers the death to the Office of the Public Trustee for the ACT, which can arrange the funeral. Sometimes the police or hospitals refer deaths to the Welfare Branch, ACT Administration, which can also arrange the funeral.

Most ACT funeral directors produce helpful free publications about organising funerals.

Directions from the deceased as to the means of disposing of his or her body have no binding legal effect except in one instance. If the dead person directed before he or she died that his or her body not be cremated then any application for cremation must be refused: CCreg 8(1)(c). As to the use of the body or organs for scientific or medical purposes: see The Use of the Body or Organs for Scientific or Medical Purposes.

Who pays for the funeral?

A. Generally

The funeral directors will regard the person who authorises the funeral and enters into the contract with the funeral director as the person who undertakes the legal and financial obligation.

One of the major difficulties is the ACT practice where many funeral directors require payment of the total cost before the funeral takes place. In these cases, a family member will usually agree to become personally liable and settle the account with the funeral director. This can cause distress for family members who may not have access to the considerable sum required in a short time. Of course, individual funeral directors make individual arrangements depending on the circumstances. If the executor is arranging the funeral, the funeral directors often prepare a tax invoice and give that together with a copy of the medical certificate to the Bank who will often agree to release to the executor the amount of money from the deceased's bank account to pay the bill.

B. Pre-paid funerals

Pre-paid funeral arrangements with funeral directors are becoming more common. There is no industry standard contract in these circumstances. Many funeral directors are party to a plan honoured by funeral directors Australia-wide. If that is not the case, and the deceased has moved before death, that person may be able to have the funeral director transfer the arrangements to another funeral director near where they now live. If you have a pre-paid funeral plan, ensure you contact the funeral director when you move so that your plan can be honoured in the new location. A pre-paid plan certainly removes a financial burden on the family at a time of grief, and the family can also be sure that the funeral and burial arrangements are those the deceased wanted.

It is vital to make sure that your relatives know about your pre-paid funeral plan if you have one. There is no central registry of funeral plan payments, and your relative may be morally sure that you paid for a funeral plan, but may be unable to find and pin down a funeral director who will admit to having entered into the plan. If this happens, your relative will end up having to pay again in full for the funeral!

C. Get quotations

The person who arranges the funeral should obtain quotations as to the costs and be aware of exactly what the quote covers and whether there are other costs not covered. For example, most ACT funeral directors organise the death and funeral notices in the newspapers, and any cemetery fees and add them to the final account.

D. Deceased has few assets; Deaths referred to the Public Trustee

When a death is referred to the Public Trustee, he or she assesses whether the estate is sufficient to pay for a funeral. If it is, then the Public Trustee organises a funeral and recovers the cost from the estate.

If a death is referred to the Public Trustee and it is thought that the estate is insufficient, the matter is referred to the Welfare Branch of the Office of Children, Youth and Family Support, which is part of the ACT Department of Housing and Community Services (for contact details see Contacts and Links). The Welfare Branch makes the funeral arrangements with a local undertaker and pays the cost of the funeral. If any money is obtained from the estate the Public Trustee reimburses the Welfare Branch. In most cases deaths of destitute persons are referred directly to the Welfare Branch by the police or the hospital welfare workers or by relatives who are unable to pay. In the ACT, the contract to provide these funerals is sent out to tender every three years. The disbursements in each case are met by the government, and the undertaker receives a fixed contract price for each funeral. Like other funerals, there will be a service usually at the crematorium or cemetery, and the grave will have a plaque placed on it, in consultation with any family members.

E. Funeral benefits

Some possible sources of funeral benefits are:

(i) life insurance;

(ii) health funds;

(iii) Workers' Compensation;

(iv) Veterans' Benefits (available to survivor of a veteran or to veterans in charge of a funeral);

(v) The Department of Families, Housing, Community Services and Indigenous Affairs (through Centrelink) now contributes an additional pension payment as a contribution to funeral benefits.

(vi) social clubs;

(vii) trade unions; and

(viii) superannuation.

(See also Who pays for the funeral? and Type of costs).

Is it necessary to employ an undertaker?

Nothing in the law requires the employment of an undertaker. However, due to the nature of the task, the legislative requirements regarding certification, and the short time frame between death and burial, we have not discussed it further in this publication. The vast majority of people employ a funeral director.

Is it necessary to have a coffin?

For burials and cremations, an application for burial or cremation under CCA s 20, and CCreg 7, 8 and 9 (see also Procedure for burial) asks for the dimensions of the coffin. The Regulations now require that the human remains must be in a coffin, casket or other container approved by the chief health officer under the CCreg. The operator of the cemetery does not object to having a body brought to the cemetery in a coffin and then removed from the coffin and wrapped in a cloth, for example for Islamic burial.

If the body is going to be interred in the new Woden mausoleum, the body must be embalmed. If you are using an in-ground vault burial, or the crypt style burial at the mausoleum, the body must be embalmed and enclosed in a sealed corrosion resistant metal lined coffin: CCreg 10.

Health regulations require this procedure also if there is a delay of more than ten days between death and burial, or the body is being transported overseas for burial.

Arranging Burial or Cremation

A. Procedure for burial

The usual procedure is for the funeral director to approach the Cemetery Office to make a booking. If the intention is to have a headstone this must be made clear at the time of booking as large headstones are permitted in some sections of the cemetery only. The lawn cemetery now provides two sorts of small plaques. The first is the traditional brass flat plate that sits flush with the lawn. The second is a concrete headstone about 15 cm in length which sits about 10 cm high, with the brass plaque attached. Family members choose the wording to go onto the plaques in either case.

If the family require a crypt burial in the mausoleum at Woden, the funeral director can arrange that.

The funeral director then submits to the ACT Public Cemeteries Board on behalf of the person responsible for arranging the funeral, an application for burial: CCreg 6,7. The application must also contain the notice of death issued under s 35 BDMA, the Certificate (referred to at Inquest by the coroner) from the coroner if applicable: Coroners Act s 16). The operator of the cemetery needs to be satisfied that the body of the deceased is in a coffin, casket or other container approved by the chief health officer: CCreg 7(1)(d). The cemetery burial fees are paid at this stage by the funeral director on behalf of the responsible person and a receipt given. These fees are fixed by notice in the ACT Government Gazette (see www.gazettes.act.gov.au).

B. Where can burials take place?

The ACT Public Cemeteries Board now administers the Woden, Gungahlin and Hall General Cemeteries. Other than the public cemeteries, there are cemeteries at Tharwa and St John's Church. The Cemeteries Trust, funeral directors, or in some cases ministers of religion know how to contact the trustees of these other cemeteries.

Burial elsewhere than in a public cemetery or private burial ground requires the written consent of the Minister for Urban Services: CCAct s 7. No guidelines have yet been established as to when such consent will be given, but it would seem advisable to approach the minister with a specific proposal before death. Section 45 of the CCAct gives a right of appeal to the Administrative Appeals Tribunal if the minister refuses consent.

C. Procedure for cremation

Any cremation must occur within the ACT in premises licensed as a crematorium: s 25 CCAct. You cannot apply to the Minister for Urban Services to conduct a cremation elsewhere. The only Crematorium in Canberra is privately run - see Contacts and Links for contact details.

The funeral director submits to the operator of the Crematorium on behalf of the person responsible for arranging the cremation, an application for cremation: CCreg 6, 8. The application must also contain the notice of death issued under s 35 BDMA, the Certificate (referred to at Inquest by the coroner) from the coroner if applicable :Coroners Act s 16. For cremation, the additional requirements to burial are a certificate from a doctor designated as a medical referee under the CCAct stating there is no medical reason why the body should not be cremated. The operator of the cemetery needs to be satisfied that the body of the deceased is in a coffin, casket or other container approved by the chief health officer: CCReg 8(1)(d). The fees are paid at this stage by the funeral director on behalf of the responsible person and a receipt given. These fees are fixed by notice in the Gazette

In the case of cremation for a still-born child, the requirements differ slightly CCReg 9.

If the deceased directed that he or she not be cremated then the Crematorium must reject the application for cremation: CCreg (1)(c). In practice, any dispute within the family has to be resolved before the funeral director pursues arrangements for cremation any further.

D. Notice of cremation and time of cremation

The law does not require that any definite period of notice be given to the Crematorium. The Crematorium's facilities, however, are not unlimited and only a certain number of cremations a day are possible. The Crematorium operates Monday to Friday.

Possession of the Body and Moving the Body

Obtaining possession of the body

When a person dies in a hospital or nursing home, the family may contact the funeral directors of their choice. In turn, the funeral director contacts the hospital or nursing home administration, and collects from them the doctor's certificate regarding the cause of death, and an order to the mortuary attendant to release the body from the hospital mortuary into their care. When a person dies at home, the ambulance takes the body to the hospital, and the procedure outlined above is followed. The mortuaries of the public hospitals do not charge for storing a body. In a case involving the coroner the body will have been taken to the morgue in Kingston. The funeral cannot proceed until authorised by the coroner. The coroner has to issue a Schedule 2 Certificate (referred to at Inquest by the coroner) for this purpose: Coroners Act s 16.

Taking the body out of the ACT

The ACT Coroner has power to remove a deceased's body outside the ACT if requested to do so by an interstate coroner conducting an inquest into the deceased's death in that State: Coroners Act s 31.

Where a death has been reported to the coroner, a person wishing to remove the deceased's body out of the ACT must obtain a certificate from the coroner under the Coroners Act s 16 outlining the cause of death, and stating that there is no reason why the body should not be taken outside the ACT.

If the coroner is not involved, the funeral director or person responsible for organising the funeral has 28 days from the date of death to advise the Registrar in writing of the location and type of burial, the name and residential address of the deceased, a statement as to whether the death was reported to the coroner, the place and manner of disposal, as well as other matters required by the Regulations: s 37 BDMA. The law of the place to which the body is moved governs cremation and burial at that place, but the person organising it must still comply with these requirements.

The practice is for ACT funeral directors to complete a "removal from Territory" form, notifying the Registrar that the body has been removed from the Territory, and who the responsible funeral directors now are. The Registrar will then look to the newly nominated funeral directors to complete the matters required by s 37 BDMA.

Bringing the body into the ACT

The law of the place where the death occurred must be complied with when taking the body from that place. There is provision for using certificates under the law of the place where the death occurred instead of certificates under ACT law: CCreg 6(1)(d).

Religious Services

There is provision for dividing public cemeteries into different portions. The Canberra public cemeteries are divided into sections for General Cemetery, Returned Soldiers and different religious denominations. Religious Services can be conducted in accordance with the rites of different religious traditions at the cemetery.

The Use of the Body or Organs for Scientific or Medical Purposes

The law in the ACT is governed by the Transplantation and Anatomy Act 1978 (ACT) ('the Transplantation and Anatomy Act'). References are to section numbers in that Act. See also the Health Law Chapter at Organ Donation by Brain-Dead Persons, and Autopsies.

Transplants

A. Body in hospital

Where deceased wished organs to be used: if a person who dies in hospital, or whose dead body has been brought into hospital, has expressed in her or his lifetime the wish for, or consented, to the removal after her or his death of an organ or tissue for medical or scientific purposes, a medical practitioner in the hospital who has been designated for the purpose may authorise in writing the removal of the organ or tissue from the body: Transplantation and Anatomy Act s 27(1).

Such an authorisation can also be given, so long as the deceased was not known to have objected during life to such removal and the "senior available next of kin" (s 37) does not object to the removal: Transplantation and Anatomy Act s 27(2). "Senior available next of kin" is defined in the Dictionary. If there is no senior available next of kin, the authorisation can be given so long as the deceased was not known to have objected to such removal: Transplantation and Anatomy Act s 27(3). An objection by anyone defined as "senior available next of kin" will preclude the authorisation being made: Transplantation and Anatomy Act s 27(5).

The objection of a next of kin cannot however override the positively expressed wish of the deceased during her or his lifetime that organs or tissue be removed. The next of kin can object only under s 27(2) of the Transplantation and Anatomy Act and not under s 27(1) which means that the deceased's wishes will prevail over that of her or his next of kin.

B. Body not in hospital

If a person dies and the body is not in a hospital, a senior available next of kin may authorise the removal of an organ or tissue so long as no other next of kin objects and so long as the deceased had not expressed an objection to the removal: Transplantation and Anatomy Act ss 28(1) and (2).

Again, if the deceased had expressed a positive wish that her or his organs or tissue be removed, this will override any objection by a next of kin: Transplantation and Anatomy Act s 28(3).

If the deceased died in circumstances such that the coroner has become involved (see Inquest by the coroner), the coroner's consent to removal of an organ or tissue is required unless the coroner has specifically dispensed with the need for consent: Transplantation and Anatomy Act s 29.

Donation of body to medical schools

The position as described above in relation to organs and tissues is the same in relation to donation of the whole body to a medical school, a distinction again being made between authorization by a medical practitioner in a hospital: Transplantation and Anatomy Act s 37, and authorisation by a senior next of kin if the body is not in a hospital: Transplantation and Anatomy Act s 38.

Similarly, if the deceased expressed a positive wish during life (and did not change her or his mind) that her or his body be donated to a medical school, this will override any objection by a next of kin: Transplantation and Anatomy Act s 39.

If the coroner is involved he or she must consent to such use of the body: Transplantation and Anatomy Act s 40.

It is the responsibility of the medical school to dispose properly of a body which has been donated to it for training of medical students. This will save the family the costs of burial.

Donation of organs -- arrangements before death

Any person who wishes to have her or his body or organs used for medical or scientific purposes on death will expedite matters if he or she makes arrangements during life. (As mentioned above, an express statement during life that the person wishes her or his body or organs to be used for scientific or medical purposes will override any contrary wishes of surviving next of kin.)

A person can now register on line for the Australian Organ Donor Register ("the Register") This is accessible at www.medicareaustralia.gov.au/public/services/aodr/index.jsp. For further contact details see Contacts and Links. Alternatively, you can collect a form from any Medicare office and lodge it there.

The Register has been in operation since 2000 and is a joint initiative of the Commonwealth and State Governments. People who had already registered for organ donation in their State before that date were automatically transferred over to the Register. Unfortunately this is not the case for the ACT, so ACT residents must register again with the Register to be assured that their wishes will be granted. People who registered with the Health Insurance Commission should reregister, as the Register is now under the control of Medicare.

As well as registering, it is important for the person to make a written statement of their wishes and discuss it with their family.

Can you sell your body or organs?

The Transplantation and Anatomy Act s 44 prohibits a person from selling her or his body or organs. Criminal penalties apply to both parties in any such transaction, and the contract is void.

After the Funeral, Cremation or Burial

Notice of burial or cremation

After the final interment of the remains, the person in charge of the burial or cremation (normally the undertaker) will give to the Registrar of Births, Deaths and Marriages a notice in writing: BDMA s 37. That notice informs the Registrar of the name and last residential address of the deceased, whether the death was reported to a coroner and the place and manner of the disposal of the body. The Regulations set out the detailed requirements: BDMReg 9, 10.

What happens to the ashes after cremation?

The operator of the Crematorium may deliver the ashes to the person who arranged the cremation or to any other person with the consent in writing of the person who arranged the cremation: CCReg 11.

The person who obtains the ashes can arrange for them to be interred in a cemetery, or can dispose of them herself or himself as he or she wishes. It is becoming more common for family members to choose to have some portion of the ashes interred at the Crematorium, and some interred or scattered at a private location.

Alternatively, the operator of the Crematorium may give notice to the person who arranged the cremation asking what is to be done with the ashes. The Crematorium will inter the ashes at the request of that person (for example in a special wall, or under a rose bush) or, if they do not receive a reply within one year, they can inter them at the Crematorium, or deliver them to an adult family member of the deceased: CCReg 11.

Information for the Registrar of Births, Deaths and Marriages

The Registrar gets the necessary details (relating to the deceased's place of birth, age, marriages, children, parents, and so on) from a notice in writing which is lodged by the funeral director after the funeral: BDMA s 37.

Death Certificate

After the funeral the next of kin will in all probability need to procure a "Death Certificate" to prove the death. The Death Certificate is necessary in order to administer the estate of the deceased, and for other reasons, such as obtaining funeral benefits. The "Death Certificate" referred to here is the one issued by the Registrar of Births, Deaths and Marriages, not the Medical Certificate given to the Registrar by the medical practitioner. You can apply for a death certificate online at https://www.rgoonline.act.gov.au if you are next of kin as well as by mail or in person. The cost is $36.00. An additional $5.00 is charged if you require the certificate to be mailed to you.

Type of costs

The following list is a guide to the type of costs incurred:

• fees for the two doctors;
• coffin;
• cemetery plot;
• grave digging;
• plaque;
• crematorium -- plus a fee for collection of remains;
• newspaper notice: variable;
• application for death certificate ; and
• cost of the funeral: varies with the style of service required and the cemetery or crematorium selected.

It is very difficult to give an estimate of a basic, average cost. You should inquire from two or three funeral directors. This of course can significantly increase depending on the type of coffin chosen, and plaque and other expenses. See Who pays for the funeral? Under "A. Generally" for potential sources of funds. It is an expense borne by the estate of the deceased.

Many of these costs are avoided if the body is donated to a medical school: see Donation of body to medical schools.

Contacts, Links and Resources

Contacts

Commonwealth Government

ATOlaw: the ATO Legal Data Base law.ato.gov.au/atolaw

Australian Organ Donor Register www.medicareaustralia.gov.au/organ

Australian Taxation Office:

1. Home Page www.ato.gov.au;
2. Information on Prescribed Private Funds www.ato.gov.au/nonprofit/content.aspx?doc=/content/20926.htm

Department of Veterans' Affairs (DVA) www.dva.gov.au

Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) National Office www.fahcsia.gov.au

Insolvency and Trustee Service Australia www.itsa.gov.au

Superannuation Complaints Tribunal www.sct.gov.au

ACT Government

ACT Coroners Court www.courts.act.gov.au/magistrates/courts/coroners_court

Public Trustee Office for the ACT www.publictrustee.act.gov.au

Registrar of Births, Deaths and Marriages www.ors.act.gov.au/community/births_deaths_and_marriages (online death certificate).

Registrar of Probates www.courts.act.gov.au

Registrar of Land Titles www.nt.gov.au/justice/bdm/land_title_office

Welfare Branch of the Office of Children, Youth and Family Support (part of the ACT Department of Housing and Community Services) www.dhcs.act.gov.au/ocyfs

Cemeteries and Funerals

ACT Department of Territory and Municipal Services www.tams.act.gov.au/live/cemeteries (information on cemeteries)

Canberra Public Cemeteries Board www.canberracemeteries.com.au

Funeral Directors The Yellow Pages of the ACT Telephone Directory list firms of Funeral Directors in Canberra, Queanbeyan, Yass and the local district.

Gungahlin Cemetery Bellenden Street, Mitchell ACT 2911

Hall Cemetery Telephone: (02) 6241 6086

Norwood Park Crematorium www.norwoodpark.com.au

Woden Cemetery (including Christ the Redeemer Mausoleum) Justinian Drive, off Yamba Drive, Woden ACT 2606

Other Contacts

Capital Region Community Foundation "Greatergood" (for the ACT region) www.greatergood.org.au

Community Foundations Gateway communityfoundations.philanthropy.org.au

Foundation for Rural & Regional Renewal www.frrr.org.au

Philanthropy Australia www.philanthropy.org.au

Finding Statutes on the Web

It is easy to find legislation on the web. ACT statutes are available at: www.legislation.act.gov.au. Legislation in other jurisdictions is on State and Territory legislation websites, which are conveniently listed on the ComLaw site www.comlaw.gov.au, and on Austlii: www.austlii.edu.au.

Some reference texts are available online for a fee (noted in the list at Books and Statutes below).

Books and Statutes

HAJ Ford and WA Lee, Principles of the Law of Trusts, LBC Information Services, Sydney (available online).

Halsbury's Laws of Australia, loose-leaf, LexisNexis, Sydney Vol 24.

J Kessler and M Flynn, Drafting Trusts and Will Trusts in Australia, Lawbook Co, Sydney, 2008.

K Mason and LG Handler, Wills, Probate and Administration Service (NSW), loose-leaf, LexisNexis /Butterworths, Sydney (available online).

RS Geddes, CJ Rowland and Paul Studdert, Wills, Probate and Administration Law in New South Wales, LBC Information Services, Sydney 1996.

M Perkins and R Monaghan, Estate Planning: A Practical Guide for Estate and Financial Service Professionals, LexisNexis Butterworths Australia 2005.

CJ Rowland, Hutley's Australian Wills Precedents, 6th edn, LexisNexis, 2004 (7^th edn due 2009.

J de Groot and B Nicol, Family Provision in Australia, 3^rd edn, Butterworths LexisNexis Australia 2007.

AA Preece, Lee's Manual of Queensland Succession Law, 6th edn, Lawbook Co, Sydney, 2007.

All legislation referred to in this Chapter is ACT legislation unless otherwise indicated.