Below is a list of things that we are passionate about or are projects that we are actively involved in. In our view, the below need significant and urgent reform.
Online probate action and application lodgment SCWA
Businesses across various industries are evolving to paperless systems. The Probate registry of the Supreme Court of Western Australia seems to be the exception (other states of Australia have online probate lodgment and have had those systems for some time). The lodgment of probate-related applications should not rely on providing physical documents to the court. We advocate for a fully integrated online court management system that has various benefits, including but not limited to: Saving money through a quicker and more efficient process, saving time from physically delivering and posting forms or applications. Saving space from the storage of paper files, documents, applications and other records.
Our world has undergone a technological revolution in recent decades and our lives are increasingly simplified by technology. For example, we can talk to friends and family without being in each other’s physical presence (as opposed to digital presence), on any side of the globe. As lawyers, we can send letters via email in a matter of seconds instead of relying on post, which historically would take days. In light of the above, it remains unclear why wills have not followed suit and embraced the benefits of technology? Why are digital wills not accepted?
Digital wills are wills that are created, signed and stored online or electronically as opposed to printed and signed in hard copy. Not only would digital wills make it easier for them to be drafted and executed from the comfort of your own home, but wills can also be stored electronically, the will is accessible to your friends and family, after your passing. The days of “we weren’t sure if she/he had a will” or “we don’t know where the will is” will be long gone. Administering your loved one’s estate will be quick, efficient and cost-effective. We embrace the future and believe digital wills should be the status quo.
Online swearing of affidavits and other court documents
Traditional, ‘old school’ court processes require ‘in-person meetings’ to fulfil the requirements of execution of affidavit’s and court documents. This requirement is outdated. Instead, we need to embrace the practicalities of the new world and new technology. If we communicate online and court hearings are held online, we should be able to swear affidavits online using video conferencing. During COVID-19 there were some temporary amendments to the legislation and rules of execution. Regrettably, the regressive culture of the legal profession meant that the temporary measures were not made permanent.
The death of wet ink signatures and certified hardcopies.
Wet ink is the signing of a document by using a pen. The need for documents to be signed by ‘wet ink’ only makes the administration process more onerous. We believe the courts, banks, government agencies and superannuation funds, should accept alternate ways for documents to be accepted, without wet ink. There are many great digital signing software providers. Digital signing is arguably more secure, as there is only one person with the relevant credentials to log into your email systems or digital signing certificates. If Landgate (the land titles office) accept digital signatures through PEXA why can’t banks and other institutions. Ironically many simply sight the wet ink forms, then scan them and shred them! It would also save the need for these entities to digitize the documents themselves.
National will register
We see many, many cases of families who cannot locate the deceased’s original will. In some cases law firms loose originals! (A scary thought… we keep your originals very secure!). In order to prevent lost will cases and/or lost will applications we advocate for a national will registration system as a prerequisite for a will’s validity (similar to that which which exists in a number of Scandinavian and European countries). This proposed system would work well with reforms over digital wills and digital signing and could work in a similar way to PEXA’s online settlement platform.
Uniform succession law
Each state or territory has different succession laws, different state courts and different civil procedure. This unnecessarily complicates the experiences of families and friends where the deceased died with assets across various jurisdictions. There is complexity in determining which state law to rely on when it comes to the deceased’s estate. We advocate for one succession law that governs all the states and territories.
Uniform civil procedure for Western Australia
In Western Australia we want to be different… We want to be special… We want to think we do things better than everyone else… The reality is that, Western Australian Civil procedure is unnecessarily over complicated. In Western Australia, lawyers are often faced with questions of whether to commence an application by Writ, Originating Summons, Chamber Summons, Motion, Originating Motion etc. (Luckily we are not family lawyers who also have to deal with State and Commonwealth Jurisdictional; problems). Not to mention meeting the formal requirements of each of the relevant documents to be filed. We must also consider whether it is to be listed before a judge a master or a registrar? These kinds of complications could be easily avoided by simplified civil procedure which simply asks the question: What orders do you want and what legislation empowers the court to make those orders? The Court could then list the matter before the relevant person or persons. The implementation of the online e-court portal has relieved some of these issues but in our respectful view, Western Australia is 20 years behind every other state.
Anti-avoidance of Family Provision (Notional property)
A family provision order occurs when an eligible person (claimant) challenges the extent of provision left for them in a will or intestacy because the person who passed away did not leave any, or enough monies to the claimant who was dependent on them. The court can order that ‘greater provision be made’ or an increase in funds be provided to the claimant because they were not adequately provided for.
In Western Australia, the testator (the will maker) can bypass a potential future family provision claim by transferring or structuring their assets before they die so that the asset or monies do not form part of the estate. If the asset or monies does not form part of the estate, a family provision claim will not touch the asset that was transferred before the will maker’s death.
In New South Wales, Part 3.3 of the Succession Act 2006 (NSW) accounts for this. Saying that any property the will-maker transferred (or omitted to transfer) from their estate within three years before their passing, and where the recipient receives it for no valuable consideration, the property is deemed to be ‘notional property’. The Supreme Court of New South Wales will consider notional property as part of the deceased’s estate. This will enable family provision claims to be paid from the notional property despite it not forming part of the will maker’s actual estate.
We advocate for similar legislation in Western Australia to prevent the ease by which the Family Provision Act 1972 (WA) can be avoided.
Statutory priority in applications for Letters of Administration
When a person dies without a will one or more Family members (and in some rare cases lawyers, debtors and trustee companies) are able to apply for a grant of Letters of Administration from the Supreme Court of WA. The problem is that arguments can arise over who is the most suitable person to be appointed. Some specialist succession lawyers may know to follow the statutory priority order set out under English legislation but even that is a guide. A fixed order (which exists in other Australian states and territories) would reduce the number of arguments in this area.
Succession law specialist accreditation scheme (Western Australia)
Finding a succession lawyer you trust wholeheartedly and who can uncomplicate the rigorous process of administering your loved one’s estate is essential. In Western Australia, there is not currently an accreditation to affirm the competence of specialist succession lawyers. This makes it more difficult for the deceased’s family to find a specialist succession lawyer they can trust, and a lawyer who can competently deal with the estate’s assets.
We believe that the Law Society of Western Australia should implement a specialist accreditation scheme (as they do in Queensland and New South Wales) to give you greater clarity that your chosen lawyer can do what you need.
Plain English writing
Hereinbefore, hereinafter mentioned, henceforth,…. Stupid…. Firstly, writing like this is not only pompous and old fashioned but it also makes letters and emails more difficult to read. Secondly, more words equals more time and money wasted for client’s. Why say ‘in the event of’ when you could just say ‘if!’