Questions and Answers

Questions and Answers 2020-07-20T09:13:20+00:00

Frequently Asked Questions

We our extensive knowledge of family law throughout western Australia our specialist solicitors has complied a list of frequently asked questions about, Wills, Estates, probate and general family law proceedings.

When a person dies leaving a Will determining who the ultimate beneficiaries are and the extent of their entitlements is a pretty straight forward process. This is done by reference to the terms of the will and is known as “testate distribution.” By contrast, were a person dies without a will determining who is entitled is more difficult. “Intestate distribution” is governed by the terms of s14 of the Administration 1903 (WA). S14 contains a table of various kinds of family backgrounds. It specifies, depending on who has survived the Deceased, what share each family member is to receive. An extract of the s14(1) table is mentioned below:

1. dies leaving a husband or wife (whether or not other persons mentioned in item 2 or 3 also survive) the surviving husband or wife shall be entitled, absolutely, to all household chattels included in the intestate property;
2. dies leaving a husband or wife and issue (a)         where the net value of the intestate property (other than the household chattels) does not exceed the sum of $50 000 — the surviving husband or wife shall be entitled to the whole of the intestate property;
(b)         where the net value of the intestate property (other than the household chattels) exceeds the sum of $50 000 — the surviving husband or wife shall (in addition to the household chattels) be entitled to the sum of $50 000, absolutely, together with interest on that sum in accordance with subsection (4) and, of the residue, the surviving husband or wife shall be entitled to one third and the issue shall be entitled in accordance with subsection (2b) to the other two-thirds;
3.         dies leaving a husband or wife and one or more of the following, namely, a parent, a brother or sister, or child of a brother or sister, but leaving no issue (a)         where the net value of the intestate property (other than the household chattels) does not exceed the sum of $75 000 — the surviving husband or wife shall be entitled to the whole of the intestate property;
(b)         where the net value of the intestate property (other than the household chattels) exceeds the sum of $75 000 —the surviving husband or wife shall (in addition to the household chattels) be entitled to the sum of $75 000, absolutely, together with interest on that sum in accordance with subsection (4), and, of the residue, the surviving husband or wife shall be entitled to one-half and, as to the other half —(i)         where the intestate is survived by one parent or both parents —

(A)         if the value of that other half does not exceed the sum of $6 000 or if no brother, sister, or child of a brother or sister survives the intestate — the parent or parents shall be entitled (in equal shares where both survive the intestate) to that other half;

                        (B)         in any other case — the parent or parents shall be entitled (in equal shares where both survive the intestate) to the sum of $6 000, absolutely, and of the remainder, the parent or parents shall be entitled (in equal shares where both survive the intestate) to one-half and the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the other half;
                  (ii)         where neither parent survives the intestate — the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the other half;
4.         dies leaving a husband or wife but no issue, parent, brother, sister or child of a brother or sister the surviving husband or wife shall be entitled to the whole of the intestate property;
5.         dies leaving issue but no husband or wife the issue shall be entitled in accordance with subsection (2b) to the whole of the intestate property;
6.         dies leaving a parent or parents and one or more of the following, namely, a brother or sister, or a child of a brother or sister, but leaving no husband or wife and no issue (a)         where the net value of the intestate property does not exceed the sum of $6 000 — the parent or parents shall be entitled (in equal shares where both survive the intestate) to the whole of the intestate property;
(b)         where the net value of the intestate property exceeds the sum of $6 000 — the parent or parents shall be entitled (in equal shares where both survive the intestate) to the sum of $6 000, absolutely, and of the residue, the parent or parents shall be entitled (in equal shares where both survive the intestate) to one half and the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the other half;
7.         dies leaving a parent or parents but leaving no husband or wife and no issue, brother, sister or child of a brother or sister the parent or parents shall be entitled (in equal shares where both survive the intestate) to the whole of the intestate property;
8.         dies leaving one or more of the following, namely a brother or sister, or a child of a brother or sister, but leaving no husband or wife and no issue or parent the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the whole of the intestate property;
9.         dies leaving no husband or wife and no issue, parent, brother, sister or child of a brother or sister but leaving a grandparent or grandparents the grandparent or grandparents shall be entitled (in equal shares where more than one survive the intestate) to the whole of the intestate property;
10.         dies leaving no husband or wife and no issue, parent, brother, sister, child of a brother or sister, or grandparent but leaving an uncle or aunt or a child of an uncle or aunt the uncles and aunts of the intestate and the children of deceased uncles and aunts of the intestate shall be entitled in accordance with subsection (3a) to the whole of the intestate property but in applying that subsection for the purposes of this item a reference in that subsection to a brother or sister, or a child of a brother or sister, of the intestate shall be construed as a reference to an uncle or aunt, or a child of an uncle or aunt, of the intestate, as the case may be;
11.         dies leaving no husband or wife and no issue, parent, brother, sister, child of a brother or sister, grandparent, uncle, aunt or child of an uncle or aunt the whole of the intestate property passes to the Crown by way of escheat

Our fee structures and deferred fee arrangements

Most people can’t afford big legal bills. You shouldn’t be worried about money when a loved one dies. In most estates we manage, fees are taken entirely from the estate once the assets become available.

The other unique approach or firm takes towards billing is that it does not provide time charged services. We only provide fixed fee quotes which never change. This avoids cost blow outs and over servicing which regrettably does occur within the legal profession

INTRODUCTION                                                          

An executor is a person nominated by a testator to carry out the terms of a will.[1] The administration of the estate must be done in accordance with provisions of the will, as well as the applicable statutory and general law provisions.[2] There is no defined list of an executor’s duties, however the ultimate task is to manage the estate of the testator after their death. Due to the nature of the task, the will-maker will often feel an obligation to appoint a family member as executor without understanding the obligations of the role.[3] Executors have the option of renouncing the role, even after promising the testator to undertake the obligation,[4] as a person is not obligated to do a task they do not assent to.[5]

 DUTIES OF THE EXECUTOR

The below paragraphs set out the most common duties of executors.

Locating the Will

The executor, after the death of the testator, must locate the original will. Copies of the will may be stored at the deceased’s house. The original will may be at the testator’s lawyer’s office. The executor should seek legal advice as to the interpretation of the will’s terms and how to administer the estate accordingly.

The Funeral

It is the executor’s responsibility to attend to funeral arrangements and is usually done in consultation with immediate family members of the deceased. The executor is also entitled to the custody of the deceased’s body and is responsible for its disposal[6] (despite there being no property in the body of the deceased at common law). The executor must take into consideration whether the deceased made any directions regarding the funeral, burial and cremation. The executor should liaise with family regarding these matters as it can lead to dispute.[7]

Location and Protection of Assets

The executor must locate the assets and liabilities of the deceased and contact professionals to determine the nature and extent of the estate.[8]

The executor will then preserve the assets of the deceased person including their home and contents, pets and the assets of any business. In the case of business, the executor must have had powers conferred upon them by the deceased to deal with business assets.[9]

Applying for Probate

A Grant of Probate is a court order that is evidence of an executor’s right to administer the estate. It confirms the validity of the will and the executor’s authority to deal with the assets.[10] To obtain a Grant of Probate, the executor must apply to the a court of competent jurisdiction.[11] Where the deceased held an interest in real property in their sole name, or bank accounts with balances in excess of $50,000 and shareholdings valued at more than $20,000 will usually (but not always) necessitate a Grant of Probate.[12]

Taxation

The executor must ensure that all taxation liabilities relating to the deceased and the estate are paid in full. The executor has the power to sell assets of the estate in order to meet the debts of the estate, including taxation liabilities.[13]

Distribution of the Estate

When the assets are in possession of the executor and all debts have been paid, the executor distributes the assets of the state in accordance with terms of the will. This process requires determination of whether assets are distributed in specie[14] or whether the estate is converted to cash and distributed. If a beneficiary is under the age of 18 or there are specific terms relating to when a beneficiary can take their entitlement in the will, it is the executor’s responsibility to manage the funds until conditions are satisfied.

[1] Ken Mackie, Principles of Australian Succession Law (LexisNexis, 3rd ed, 2017) 319.

[2] Andrew Simpson, Australian Guide to Wills and Estate Planning, (Wiley, 2019) 21.

[3] Andrew Simpson, ‘Appointing the Right Executor’ (2007) Retirement & Estate Planning Bulletin 29.

[4] Craig Birtles and Richard Neal, Hutley’s Australian Wills Precedents (LexisNexis, 9th ed, 2016), 172.

[5] A person ‘cannot have an estate put into him in spite of his teeth’: Thompson v Leach (1690) 86 ER 391, 396.

[6] Williams v Williams (1882) 20 Ch D 659.

[7] Above n 2, 22.

[8] Above n 3.

[9] Above n 2, 23.

[10] Barnaby Grant, ‘Applying for Probate: Answers to Some ‘Not So Stupid’ Questions’ (2018) 40(6) Law Society of Western Australia, 26.

[11] The application will consist of court documents, including an affidavit of the executor and an inventory of assets and liabilities for the estate.

[12] Above n 2, 23.

[13] Pagels v MacDonald 54 CLR 519.

[14] The transfer of an asset in its current form rather than in the equivalent amount of cash.

Family provision legislation enables a court to override a will or intestate[1] distribution in favour of eligible applicants on specified grounds.[2] These matters often arise when a person has not been adequately provided for in the will of a family member. In order for a claim to be successful, the court’s must convinced that the will fails to adequately make provision for the proper maintenance and support of eligible applicants.[3] Western Australia uses a ‘proper maintenance, support, education or advancement in life’[4] approach to determine an applicant’s family provision claim.

Western Australia has statutory time limits for bringing a claim under family provision. An application can be made within 6 months from the date on which the Supreme Court issues a Grant of Probate of the Will.[5]

Certain circumstances justify an extension of time and hence a restriction regarding the final distribution of the deceased’s estate. Seeking an extension is ‘no triviality’,[6] and the Court must be satisfied that there would be injustice if the applicant was not given leave to file out of time.[7]

The principles applicable to applications for extension of time under the Act[8] were established by the Court in Clayton v Aust[9] and are summarised as follows:[10]

  • The discretion of the Court is unrestricted but must be exercised judicially in accordance with what is just.
  • The onus lies on the applicant to establish sufficient grounds for the Court to take the matter out of the general six-month time period and exercise its discretion to extend time.
  • The Court must consider the reason for the delay and how promptly the applicant acted after finding out about the Act. The Court also must consider the nature, extent and reason for the delay.
  • Whether negotiations commenced within the six-month time limit (i.e. is part of the time delay accounted to attempts to settle the matter out of court?).
  • Had the estate been distributed before a claim was made? If so, the beneficiaries are more likely to be prejudiced by the granting of leave.
  • Was the delay the fault of the applicant’s solicitors? If so, leave will not be refused because a claim for damages against solicitors is unlikely to fully compensate the applicant and hence disadvantage the applicant.
  • If leave is refused, will the applicant have redress against anyone else?
  • Does the applicant have an arguable case on the merits?

[1] Where a person dies without having in force a valid will.

[2] Rosalind Croucher and Prue Vines, Succession: Family, Properties and Death: Text and Cases (LexisNexis, 4th ed, 2013) 578.

[3] Above n 2, 585-586.

[4] Family Provision Act 1972 (WA) s 6(1).

[5] Above n 4, s 7(2)(a).

[6] Andre v Perpetual Trustees WA Ltd [2009] WASCA 14, 10 [39].

[7] Above n 4, s 7(2)(b).

[8] Family Provision Act 1972 (WA).

[9] Clayton v Aust (1993) 9 WAR 364.

[10] John Hockley, Wills Probate and Administration WA (LexisNexis, 2019) 610.

Challenges to the validity of the Will

Challenges to the validity of wills are notoriously difficult and have high evidentiary standards. Challenges of validity often fall into one or more sub-categories. These include, lack of testamentary capacity, lack of knowledge and approval, and testamentary undue influence.  Lack of testamentary capacity cases involve situations where the testator did not have the ability to understand or comprehend the process of making a will, for example, they may have advanced dementia or other severe cognitive impairment. Lack of knowledge and approval claims relate to people who sign wills but could not have known or approved of the contents of the document. They may have had testamentary capacity but may be illiterate or blind and could have been mistaken in what they signed. Undue influence cases involve situations where the free will of the testator is overborne to the extent that they could not make a will giving effect to their true testamentary wishes.

Executor’s Duties

The Executor and a trustee stand in a fiduciary relationship to the estate and the beneficiaries.[1] The standard of duty owed by ‘lay personal representatives,’ is that of ‘an ordinary prudent businessperson.’[2] Executors and Trustees must act prudently and properly in the management of the estate as a whole.[3]An executor must not suffer the estate to be injured by their neglect or careless administration or prefer their own interests to those of the estate.

Court’s Power to Remove Executor

The court has inherent jurisdiction to remove an executor and trustee and appoint a replacement.[4] The court also has statutory power to remove a trustee under s77 of the Trustees Act 1962 (WA). The jurisdiction to remove an executor or trustee is not simply whether the trustee has committed breaches of trust, but the welfare of the beneficiaries.[5]

As Dixon J stated in Miller v Cameron (1936) 54 CLR 572 at 580 -581:

“The jurisdiction to remove a trustee is exercised with a view to the interests of the beneficiaries, to the security of the trust property and to an efficient and satisfactory execution of the trusts and a faithful and sound exercise of the powers conferred upon the trustee. In deciding to remove a trustee the Court forms a judgment based upon considerations, possibly large in number and varied in character, which combine to show that the welfare of the beneficiaries is opposed to his continued occupation of the office. Such a judgment must be largely discretionary. A trustee is not to be removed unless circumstances exist which afford ground upon which the jurisdiction may be exercised. But in a case where enough appears to authorize the Court to act, the delicate question whether it should act and proceed to remove the trustee is one upon which the decision of a primary Judge is entitled to especial weight.”

[1] Williams v Williams 2004 QSC 269.

[2] Re Speight (1883) 22 Ch D 727 at 739-740; Austin v Austin (1906) 3 CLR 516 at 525 per Griffith CJ.

[3] Re Charteris [1917] 2 Ch 379 at 389.

[4] Monty Financial Services Ltd v Delmo [1996] 1 VR 65, Phelan v Booth (1941) 43 WALR 60; Porteous v Rinehart (1999) 19 WAR 495; See v Hardman [2002] NSWSC 234.

[5] Meyers CJ in Hunter v Hunter [1938] NZLR 520 at 530.

Challenges under Family Provision (Testator’s Family Maintenance) legislation

Testator’s family maintenance legislation introduces a threshold jurisdictional question as to whether or not the deceased’s Will, or the statutory intestacy provisions,[1]have made “adequate provision for the proper maintenance, support, education or advancement in life”[2]of the claimant.  The above question is one of fact and relevant to the claimant’s station in life as at the date of the deceased’s death[3]The court measures the terms “proper” and “adequate” against the claimant’s station in life and the nature of the relationship that they had with deceased[4]. The court does not consider the terms “proper” and “adequate” as fixed concepts but rather as flexible or relative. The court uses “a multi-faceted evaluative judgement,[5]which weighs up the competing needs of the parties[6]. The court has regard to the current and future needs of the claimant. The court looks through the lens of a “just and wise testator and not one who is fond or foolish,”[7]and one who is placed in a position of knowing all of the facts. A non-exhaustive list of examples of the factors have been set out in s60(2) of the Succession Act 2006 (NSW).

Call us today if you would like advice on your personal situation.

[1]See ss6(1) and 7 FPA.

[2]See s6(1) FPA, Coats v National Trustees Executors & Agency Co Ltd(1956) 95 CLR 491; Singer v Berghouse(No 2)(1994) 181 CLR 201 and Bondlemonte v Blackensee[1989] WAR 305.

[3]Blore v Lang (1960) 104 CLR 124.

[4]Vigolo v Bostin(2005) 221 CLR 191.

[5]Basten JA, in Foley v Ellis[2008] NSWCA 288, at [3]; Pontifical Society for the Propagation of the Faith v Scales[1962] HCA 19 and Deveraux –Warnes v Hall[2007] WASCA 235.

[6]Re Allen, Allen Manchester [1922] NZLR 218.

[7]Bosch v Perpetual Trustee Co Ltd [1938] AC 463.

An Enduring Power of Attorney (‘EPOA’) is a deed or instrument that enables you to appoint a trusted person to make financial, legal and property related decisions on your behalf.

An EPA is an agreement that is made by choice, and can be executed by anyone over the age of 18 who has full legal capacity. “Full legal capacity” means that the person must be able to understand the nature and effect of the document they are completing.

An EPA can be operational while you still have legal capacity. Alternatively, it may become active only if you are physically unable to attend to financial matters. With an enduring power of attorney, if you happen to lose your legal capacity, the EPA will continue to operate.

An EPA does not permit your elected attorney to make personal and lifestyle decisions, including decisions about treatment.

A grant of Probate is an order of the Court which authorises an executor to act. On receiving the grant the Executor is entitled to call in and convert the assets of the estate, discharge liabilities, and distribute the estate assets according to the terms of the Will. In most cases, obtaining a grant of probate is a non-contentious administrative process. Family members underestimate the time and effort involved preparing the application. There are strict rules which you must follow. Improperly completed applications require further clarification from the court this results in delay in finalising the estate.

In some cases, the Will itself is defective. This complicates the application process. For example, the Will may not have been properly executed. The Will may contain marks, staple holes, or other damage, which raises a presumption that something was attached to it. The deceased may have suffered dementia prior to the date of their death. This raises the court’s curiosity as to whether, or not, the deceased had capacity to understand the will on the date it was signed. These kinds of applications require specialised affidavits.

What is a trust?

In most wills, after a person dies, the executor will hold the assets of your estate “on trust” for your beneficiaries. In other words, the executor acts as the “legal owner” of the assets for a short time until the benefit is transferred to them. During the transition, the beneficiaries are not the legal owners of the estate’s assets. They are known as the “beneficial owners.”  This is a trust relationship.

Once an estate is administered (all the bills are paid) the trustee “vests” or transfers legal ownership of the assets to the beneficiaries. At that point, the beneficiary becomes both the legal owner and beneficial owner. Vesting of an asset to a beneficiary makes them the “absolute owner,” of it. Once an absolute owner, the trust relationship is at an end.

An analogy used to explain the difference between legal and beneficial ownership is motor vehicle registration; A car can be registered in A’s name but actually belong to B.

Superannuation funds are another common example. The legal ownership of the fund is held by the trustee appointed by the superannuation company. They hold your investment “on trust,” for you but you are not responsible for making investments.

Discretionary v’s Non-Discretionary

There are two commonly used trusts created in wills. The first being a “discretionary trust” and the second being “Non-discretionary trust”.

A non-discretionary trust is commonly known as a “bare trust.” In a bare trust, a beneficiary can demand that the trustee vest the asset in their name. An example of a bare trust in a Will could be “I give the whole of my estate to my children A and B equally.”

In a discretionary trust, a beneficiary cannot demand anything from the trustee. The distributions of income and capital are made at the discretion of the trustee. The discretionary nature of trusts is the mechanism used to protect assets from marital disputes and creditor claims.

Testamentary trusts are commonly used in estate planning. A separate testamentary discretionary trust can be set up for each beneficiary. For example, for A and B, to be used for the benefit of each of their respective families. In families with adult children A will often be the Trustee for A’s trust and B the trustee for B’s trust. In families with infant children, C (an independent person, friend or relative) may act the Trustee of both A’s and B’s trusts until they attain a specified age defined in the trust (“the preservation age”).

Testamentary discretionary trusts last for a period of eighty (80) years from the date of a person’s death. This means that the trust is capable of distributing income across multiple generations.

 Family/Domestic Partner / Asset Protection

According to a report commissioned by the Australian Department of Social Services:

“Divorce continues to be a pervasive feature of Australian social life: 32 per cent of current marriages are expected to end in divorce and it has been predicted that this may increase to 45 per cent over the next few decades if current trends in recent marriage cohorts continue…”[1]

A testamentary discretionary trust may be used (in limited circumstances) to prevent a person’s inheritance forming part of the “asset pool,” for the purposes of matrimonial property disputes. The rules of the trust temporarily excluded your child from acting as the trustee during the dispute. A new trustee would be appointed by them. Whilst an excluded trustee, they cannot demand that the new trustee make distributions to them. Once the property proceedings are resolved, the child can be re-appointed. If the family court treated the trust as “an asset of the marriage,” it would adversely affect the rights of other family members who have an interest in the trust and there is a reluctance on their part to interfere.

Notwithstanding, the Family Court of Australia is an extremely powerful court. If A is no longer a trustee but continues to receive regular distributions from the trust, this will be seen as “de-facto control.” In that scenario the protection may not be effective. If a testamentary trust was set up with the objective of avoiding the jurisdiction of the Family Court (in circumstances where there was suspicion of an impending dispute) the protection may not be afforded. The lesson here is that will-makers ought to create testamentary trusts well in advance of their children’s relationship problems. Doing so strengthens the argument that the trust was set up with a legitimate purpose.

Creditor Protection

Your children may run businesses, or be otherwise exposed to claims by creditors. If you die leaving a “bare trust,” in your Will, your children’s creditors may gain access to the gifts. For example, a trustee in bankruptcy may apply the inheritance to discharge debts. In a discretionary trust that will not happen.

Once again under the rules of the trust your child would “temporarily,” be excluded from acting as the trustee. Once any bankruptcy is discharged they are able to re-appoint themselves as trustee.

Tax Concessions and Savings

Inheritance under a will is treated differently to income received from other sources. Infant children under a testamentary trusts are allowed to claim the tax free threshold of an adult taxpayer ($18,200.00) rather than the nominal threshold normally applicable to children. Marginal tax rates apply to “excepted trust income.” This is compared to the maximum rates charged on distributions made to children from “non-excepted income.” The following examples show the tax effective nature of testamentary wills structures:

Scenario 1 Scenario 2 Scenario 3
Absolute Gift to A who then personally owns $1M Trust owns $1M Trust owns $1M
$1M gift earns 5% income per annum or $50,000.00 $1M gift earns 5% income per annum or $50,000.00 $1M gift earns 5% income per annum or $50,000.00
Income of $50,000.00Apportioned to A’s annual income Trust distributes $50,000.00 income to A’s 3 infant children Trust distributes $50,000.00 income to A’s 2 infant children
A pays income tax at a rate of 45c in the $1.00 Infant children treated as adult taxpayers and claim tax free threshold of $18,200.00 allowed for excepted trust income Infant children treated as adult taxpayers and claim income tax free threshold of $18,200.00 for excepted trust income. Remaining income of $13,600 treated as excepted trust income and taxed at marginal rate of 47%
Tax Payable $22,500.00 Tax Payable $0 Tax Payable $6,392.00
Tax saving $0 Tax Saving $22,500.00 Tax Saving$16,108.00

Deferred Capital Gains Tax

 A trust’s ownership of an asset attracts similar capital gains tax (“CGT”) concessions which apply to individuals (not including the principle residence exemption). Given that a trust can own assets for a period of eighty (80) years, the sale of trust assets in two or three generations time, means the first and second generations may not have to pay CGT during their lifetimes.

Protection for infants, spendthrifts, gamblers, alcoholics and mildly disabled persons

 Testamentary discretionary trusts allow you to take the investment and income distribution control out of the hands of vulnerable beneficiaries. People are often concerned that their children will spend their inheritance on a sports car rather than a roof over their head. Testamentary trusts allow vulnerable people to be appointment as their own Trustee in the future should their life circumstances improve.

 Non-Retrospective Nature.

A testamentary discretionary trust gives beneficiaries great flexibility. If your beneficiaries do not wish to participate in the trust structure they can easily wind it up, taking their inheritance absolutely. It is important to note that a testamentary discretionary trust cannot be made retrospectively (after death). If the structure is not set up in advance, then none of the asset protection or tax effective structures can be utilised.

[1] Marriage breakdown in Australia: social correlates, gender and initiator status (Australian Department of Social Services)(Social Research Policy Paper No 35) Dr Belinda Hewitt 2008 (Cth).

A will is a legal document that describes your wishes and how your estate should be managed in the event of your death.

Having a clear, valid and up to date will is one of the best ways to ensure that your assets are protected and distributed according to your wishes. A will allows you to appoint an Executor, who is the person entrusted with the responsibility of making sure your wishes are met.

There are a variety of different types of wills that can be tailored to your personal circumstances. Wills can deal with funeral instructions, burial, cremation, guardianship of infants, specific gifts, the creation of trusts and many other testamentary considerations.

The team at Gregson and Associates specialises in helping you to put in place the right protection for your intended beneficiaries.

An Advance Health Directive (‘AHD’) is a legal document that enables you to make decisions now about future treatment. These treatments can include medical, surgical, dental treatment and/or other health care.

One of the benefits of having an AHD is that if you happen to become very sick, injured or were incapable of communicating your wishes your enduring guardian will not have to make the difficult decisions and face the guilt associated with doing so.

If you do not have an AHD, the treatment decision will be made by your appointed enduring guardian, if you have not appointed an enduring guardian then a person responsible for you will make the decision (such as your spouse, parent, child, or sibling).

An Enduring Power of Guardianship (‘EPOG’) is a legal document that enables you to appoint a trusted person, or people, to make important personal, lifestyle and medical treatment decisions on your behalf should you ever become incapable of making such decisions yourself.

You and the person you appoint at your enduring guardian must be 18 years of age or older, and have full legal capacity. You have the option to appoint more than one enduring guardian as joint enduring guardians (this means that they have to act jointly and must reach agreement on any decisions they make on your behalf), or appoint substitute enduring guardians (in the event that the primary enduring guardians was unable to continue in the role).

The scope of the authority given to your enduring guardian is determined by you when you make your EPOG.

An enduring guardian cannot be authorised to make property or financial matters on your behalf.

An executor’s duty is to preserve, protect and administer the estate of the deceased. A devastavit is a breach of the duty to preserve the assets of the estate and to administer the estate properly. Its is a duty owed to both creditors and to beneficiaries.[1] The mismanagement of an estate of the deceased amounts to a tort at common law.[2] A breach of trust will be amounted to where an estate has suffered from deliberate or negligent acts of the executor. For a breach of this duty, the representative must make good any loss to the estate.[3]

Common examples of executors in breach of trust include:

  • Conflict of interest: where the position of the beneficiary conflicts with the personal interests of the executor. This conflict will affect the efficient and satisfactory administration of the estate.[4]
  • Unreasonable delay: either deliberate delay or a lethargic approach to administration. This also includes a failure or refusal to provide information.[5]
  • Improper use of funds: using funds from the estate for unauthorised purposes.[6]
  • Personal hostility: where hostility grows between the executor and the beneficiary to the extend that it interferes with administration of the estate.[7]
  • Use of beneficiaries’ entitlements to bargain: for example, an executor seeking a release from a beneficiary before paying out their entitlements under the will.[8]

Not every breach of trust will lead to the removal of the executor; there needs to be some threat to the estate;[9] “You must find something which induces the Court to think either that the trust property will not be safe, or that the trust will not be properly executed in the interests of the beneficiaries.”[10]

In order to remove an executor, an application to the Court can be submitted by any person interested in the estate. The Court may revoke the appointment and effectively remove the executor of the estate.[11]

Where poor administration has resulted in loss to the estate, the equitable jurisdiction allows an order of accounts to be taken to claim in equity.[12] There are two types of account. Firstly, the account in the common form in which the executor must account for the money that they have received. Secondly, the less-used account on the basis of wilful default where the account must include both the money received and the money that would have been received if not for the executor’s wilful default. For the latter, it is appropriate where the executive has acted, and continues to act, in an uncooperative matter.[13]


[1] Re Tankard [1942] 1 Ch 69, 72.

[2] Tort law is an act or omission by a defendant constituting an infringement of a legally recognisable interest of the plaintiff that gives rise to legal remedy. A tortious claim acts to put the plaintiff back in the position or as close as possible to that position before the harm.

[3] Rosalind Croucher and Prue Vines, Succession: Family, Properties and Death: Text and Cases (LexisNexis, 4th ed, 2013) 780.

[4] Manocchio v Wilson [2012] VSC 76, 38.

[5] Carolyn Sparke, ‘Removing Executors and Trustees’ (2014) 20(10), Trusts & Trustees 1023, 1028.

[6] Ibid.

[7] Schavieren v Jones [2007] NSWSC 1429, 103.

[8] Above n 5, 1029.

[9] For example, assets need to be at risk.

[10] Warrington J in Re Wrightson [1908] 1 Ch 789, 803.

[11] Administration Act 1903 (WA) 29(1).

[12] A Court of Equity may offer alternative remedies.

[13] Above n 3, 782-3.

Letters of administration:

Where nobody has been appointed to be the legal personal representative by a Will, a family member (or other person) may apply to the court to be appointed. These applications are commonly non-contentious. However, there is a long list of criteria which must be met before the court approves the application. The consent of every person eligible to apply for grant must be sought. If the Deceased left an infant child surviving them the application becomes significantly more complex. There are no “pro-forma” application forms for these kinds of applications. It is strongly recommended that you consider advising a specialist to assist you in making intestate applications to the Court.

Voluntary assisted dying (VAD) has a number of names including, but not limited to: voluntary euthanasia, assisted death and assisted suicide. Ultimately it is a voluntary action by a person with capacity and will to end their life with assistance of a medical practitioner.[1] The act involves either a patient taking lethal drugs that are intentionally prescribed by a physician, or the intentional administration of a lethal injection by a physician at the patient’s request.[2] Requirements for application for VAD are that the applicant is aged 18 of over, an Australian citizen or permanent resident whom has resided in Western Australia for at least 12 months, be acting voluntarily and without coercion, have capacity to make healthcare decisions, have a life-limiting illness and be experiencing suffering that cannot be adequately relieved.[3]  Often the purpose of VAD will be preservation of dignity of a person and to remove some of the struggle for that person and those close to them. It has become an important contemporary debate in law, medicine and ethics.[4]

In December 2019, the Western Australian Parliament’s Voluntary Assisted Dying Act[5] was enacted by Royal Assent and there is an 18-month implementation period in progress led by the Department of Health to give health and other service providers time to prepare. To access voluntary assisted dying, a person must:

  • Be eligible[6] (see first paragraph for eligibility criteria);
  • Have been independently assessed as eligible by two trained medical practitioners;
  • Make three separate requests for voluntary assisted dying: a first request, a written declaration (witnessed by two people who meet specific requirements) and a final request; and
  • Determine (with advice from a medical practitioner) whether to administer the voluntary assisted dying substance[7] by self-administration or practitioner administration.

At any stage of the process, the person can withdraw or revoke their involvement.[8]

The 18-month implementation period means voluntary assisted dying will be available in Western Australia from around May of 2021.


[1] Nichloas Cowdery, ‘A Dignified Ending’ (2017) 33 Law Society of NSW Journal 28, 28.

[2] John Keown, ‘“Voluntary Assisted Dying” in Australia: The Victorian Parliamentary Committee’s Tenuous Case for Legalisation’ (2018) 26(2) Issues in Law and Medicine 55, 56.

[3] Tara Nipe, ‘What Australian Nurses Need To Know About Voluntary Assisted Dying’ (2019) 26(7) Australian Nursing and Midwifery Journal 28, 28.

[4] Above n 2, 55.

[5] Voluntary Assisted Dying Act 2019 (WA).

[6] Voluntary Assisted Dying Act 2019 (WA) s 16(1).

[7] Voluntary Assisted Dying Act 2019 (WA) s 7(2).

[8] Voluntary Assisted Dying Act 2019 (WA) s 57(1)(b).

Typically, the executor of the deceased’s will has the responsibility to decide on funeral arrangements. The executor should consider the wishes of the deceased if practicable, however, at common law, the directions in a will as to the funeral, cremation or burial are regarded as merely declaratory.[1] Where there is no executor, the right to possession of the deceased’s body must be determined by a court, likely to be the next of kin.

The executor should consult relations of the deceased when attending to funeral arrangements and discuss specifications regarding the funeral and burial of the body to avoid dispute.[2] Ultimately, it is the executor’s role to arrange the funeral and so the family’s wishes are advisory and not binding.

In Smith v Tamworth City Council[3] regarding disputes about the disposal of the body, Young CJ concluded:

  • If the executor is willing and able to arrange for the burial of the deceased’s body, they have a right to do so.
  • A person with the privilege of choosing how to bury the body is expected to consult with relations of the deceased but is not legally bound to do so.
  • Where no executor is named, the person with the highest right to take out administration will have the same privilege as the executor in proposition 1 (typically the surviving spouse or de facto spouse, then the children).
  • Cremation is today equivalent to burial.
  • A person who expends funds in burying a body has restitutionary action to recover their reasonable costs.

Reasonable funeral expenses are payable out of the deceased’s estate. The deceased may have already paid for their funeral in advance or have cover from insurance funds to help with paying funeral expenses. Extra financial help for funerals and other death-related expenses is available from the Department of Communities’ Bereavement Assistance Program where the deceased does not have enough money to cover the cost of the funeral and the family cannot afford to pay.[4]


[1] Rosalind Croucher and Prue Vines, Succession: Family, Properties and Death: Text and Cases (LexisNexis, 4th ed, 2013) 170.

[2] Andrew Simpson, Australian Guide to Wills and Estate Planning, (Wiley, 2019), 22.

[3] Smith v Tamworth City Council [1997] NSWSC 197, 694.

[4] ‘Bereavement Assistance Program’, Government of Western Australia Department of Communities, Child Protection and Family Support (Web Page, 23 August 2018) <http://www.dcp.wa.gov.au/SupportingIndividualsAndFamilies/Pages/BereavementAssistanceProgram.aspx>.

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