Uniform Succession Laws - Essay Example

Name Tutor Course Date Uniform Succession Laws Introduction In Victoria, the Administration and Probate Act 1958 (Vic) plays an integral role in redistribution of the properties of the deceased. Part IV of the Act is applicable in determining the people who are eligible for the redistribution of the properties of the deceased. The use of the Act in Victoria is different from the other jurisdictions in Australia. In Victoria, anyone who feels that the deceased had a responsibility to provide for them and did not do so has a right to apply for a court order to enable the estate to be redistributed in their favor1. This has greatly contributed to the non-genuine claims that impacts negatively on the redistribution process. The opportunistic people in some instances end up benefiting from the properties of the deceased due to the provisions in the Victorian legislation. Most members of public are not comfortable with the legislation due to the non genuine claims. The Victorian Law Reform Commission recommends that Victoria should use the approach that has been taken by New South Wales. The approach taken by New South Wales ensures that the non-genuine claims are eliminated. The paper thus discusses why the Commission recommends that Victoria should take the approach used in New South Wales in terms of Uniform succession. Discussion The commission recommends the approach taken by New South Wales because some people feel that they are not free to dispose their will as undeserving people may end up challenging it in court for their own benefits using the current legislation in Victoria. Although the number of opportunistic claims is not high, it increases the costs involved during the process and it also prolongs the time before the redistribution can take place. This is an indication that the Administration and Probate Act 1958 (Vic) is not efficient and it has negative impact on the process. The legislation is also costly which impacts negatively on the executioners. The high legal expenses usually force the executioners to settle the matter out of court and hence leading to the exploitation of the executioners. In Victoria, if the court is satisfied that the applicant is eligible for the redistribution of the properties of the deceased then they are considered. The cases are usually decided by the courts based on their merits. In the case of Whitehead v State Trustees, the court awarded provision for the close personal friend and sex partner of the deceased together with his son2. High cost of settlement is at times incurred during the process and hence the inconvenience of the family provisions. The weaknesses in the legislation have thus contributed to the recommendations of the commission that the jurisdiction should embrace the legislation that has been put in place in New South Wales. The family laws in accordance with the Administration and Probate Act 1953 (Vic) creates a discrepancies between the law and the expectations of the community and hence the recommendations by the Commission that the approach taken by New South Wales should be embraced. The commission noted that the public in Victoria feel that the decision of the judges amounts to ruling out the wishes of the deceased in case one is awarded the rights for redistributed of the properties of the diseased. The wishes of the deceased are also not respected as the intended properties to the executioners will have to reduce. Other member of the community feels that the decision of the judge to award the rights of redistribution to the plaintiffs amounts to changing the will of the deceased. Most community members do not support the changes to their will as they feel that there is no need of paying for the will to be made only to be changed after it has been challenged3. The members of the community do not prefer their will to be changed after their death and hence reason for writing the will. The commission therefore recommends that four aspects of the legislation should be changed in order to eliminate the discrepancies between the law and the community expectations. Reforms should be made on the jurisdiction of the courts so as to enable it ensure that the expectations of the community are not interfered with. The eligibility for the claims should also be changed so as to prevent the non-genuine claims. Other reforms that should be made include the cost rules and procedure. In Victoria, the jurisdiction of the county courts and Supreme Court is unlimited and hence the recommendation by the commission that the approach taken by New South Wales should be adopted. Some of the cases that could be heard and determined at the county court are usually referred to the Supreme Court and hence increasing the legal expenses. Adopting the approach taken by New South Wales as recommended by the commission will ensure that some of the cases are heard and determined at the county courts and hence reducing the legal costs. Eligibility is not considered by the courts in Victoria. This has greatly contributed to non-genuine claims as the court is usually interested in the facts that the individuals presents in relation to the situation. This is unlike New South Wales where eligibility is usually considered4. The recommendations by the commission are thus important for the purpose of ensuring that the eligibility of the applicants is determined which will ensure that the non-genuine claims are eliminated. In New South Wales, the list of eligible applicants is flexible for the purposes of ensuring that issues of the applicants are dealt with. The flexibility will therefore play an important role in Victoria in ensuring that the applicants are considered depending on their eligibility. The threshold for the requirements of the dependants has not been set in Victoria. This has a negative impact on the amount that is usually allocated to the executioners. The presence of a threshold will play an important role in ensuring that the financial needs are considered before a decision is made by the court. According to section 91 of the Administration and Probable Act 1958 (Vic), the courts have the powers to make maintenance orders. However, the commission recommends that the courts should consider the relationship between the applicant and the deceased before making a ruling. This is opposed to the current criteria where facts are and circumstances are used to make decision of any applicant. The recommendation will therefore play an essential role in eliminating the non-genuine claims. The cost rules in the current legislation are quite high as compared to other cases. This is because the cost rules differ from the other civil cases. The executioners may thus end up spending more incase an applicant wins the case and is considered in the redistribution of the properties of the deceased. According to section 97 of the Administration and probate Act 1958 (Vic), the courts has the powers of determining the costs that should be paid. In the case of Bentley v Brennan, the court noted that the legislation empowered rather than direct the plaintiffs to pay for the costs5. The court noted that the plaintiff should not be directed to pay the legal costs just because they have lost the case. This has contributed to the increase in the costs and many executioners have decided to solve their matters out of court. This is because they fear that the applicant may win the case and they will be forced to pay for the legal costs. The recommendations will therefore play an important role in terms of ensuring that the legal costs reduced in the family cases. The reduction in costs will also ensure that that non-genuine applicant do not benefit from the court process. In the case of Webb v Ryan, the judge found that the claims of the applicant had no prospects of success6. The applicants had also rejected an offer to compromise. They were thus ordered to reimburse the estate for the personal representative cost on the solicitor to client basis. Unsuccessful plaintiffs in some of the cases have had their legal costs paid by the estate. This has a negative impact on the executioners as they will not receive the actual amount that they are supposed to receive in accordance to the will. In Victoria, the affidavits usually take a long time due to the issues related to jurisdiction. This is because the contents of the affidavit are at times not specified. The procedure therefore increases the amount of time taken during and hence inconveniencing the executioners7. This is unlike New South Wales where the contents of the affidavit are usually specified. The procedure for producing the evidence during case also contributes to the increased costs and time taken. According to the commission, it is important for the court to use the oral evidence as applicable in New South Wales. This plays an important role in saving time and costs and hence eliminating the inconveniences. The time limit that has been set for application to be made is too short. Six months is the time limit and this is too short as it impacts negatively on the applicants. The commission recommended that the time limit should be twelve moths. The twelve months period gives the executioners and the applicants, adequate time to prepare for the case. In New South Wales, the time limit for making an application is twelve months and it gives enough time for all the applicants to make their applications. Section 99 of the Administration and Probate Act 1958 (Vic) outlines the timeline about when an application should be made. However, section 99 still refers to part V which is no longer applicable. The recommendations of the commission will therefore play an important role in ensuring that the procedures for family cases are efficient in terms of time and costs. The size of the estate is important when dealing with a family case. The position statement is usually used in New South Wales when dealing with the small estates. However, in Victoria, a profoma affidavit has to be filled which increases the time taken for the cases to be completed. The commission recommends that it is important for a position statement to be used in Victoria when dealing with the small estates. This will save the executioners both time and costs which is important in ensuring that the case is settled within a short time. At the point of mediation, the legal cost usually increases since the courts do not have any control over it. The commission recommended that the courts should have more control of the costs for the purpose of ensuring that the executioners do not incur high legal costs. The use of the affidavits and the mediation also complicates the procedure and hence inconveniencing the executioners and the applicants. Capping the costs is an important measure that should be put in place by the courts. The courts currently do not have the powers to cap costs and hence ensuring that the costs in the family cases are reduced8. The commission recommended that the legal costs of the applicants should not be met by the money from the estates. This is especially when the applicant is unsuccessful and it will ensure that the executioners do not incur much cost. It is also important to note that the executioners usually prefer settling the matter out of court due to the high costs that are involved. Intestacy usually occurs when a person dies without leaving a will or their will is not valid. According to the Administration and Probate Act 1958 (Vic), a statutory scheme should be put in place for the purpose of distributing the properties of the deceased. The legislation does not set any limit in terms of the kinship. Section 52 of the Administration and Probate Act sets the guidelines for the distribution of properties in intestacy. However, there is no limit for the kins who should receive the properties of the deceased. This opens up an opportunity for non-genuine claims from the opportunists. Any distance relative can apply for the distribution of the properties of the deceased incase of intestacy as they only need to show that the deceased had a responsibility to provide for them. The commission therefore recommends that the approach taken by New South Wales should be embraced in Victoria. This is because the approach taken in New South Wales limits the number of kins and hence ensuring that the non-genuine people are not eligible to apply for redistribution of the properties of the deceased in their favor9. The recommendations by the commission is thus for the purpose if enabling the properties of the deceased to be redistributed to the deserving members of the kin. The time taken to make the applications by the members who believe that they are eligible also leads to the delays in the distribution process. Although the legislature in place is important, the recommendations of the commission will ensure that only the deserving member are distributed with the properties of the deceased within a short time. Conclusion In conclusion, it is evident that the Administration and Probate Act 1958 has some disadvantages when dealing with the family issues. Although it meets the legal requirements that has been set by the National Committee for Uniform Succession laws it still has some weaknesses. The weaknesses in the legislation give room for non-genuine claims which affects the will of the deceased. The Victorian Law Reform Commission has proposed some changes to the legislation for the purpose of ensuring that the family cases are dealt with effectively. The family provision in New South Wales is more effective as the legislation is not the same as compared to Victoria. It is evident that the current legislation in Victoria does not meet the expectations of the community. This is because some of the court decisions amounts to changing the will of the deceased. On the other hand the legal costs are also increased due to the legislature. The procedure that is involved in the family provision is also costly and it impacts negatively on the executioners. It is also evident that the legislation in Victoria is not effective in terms of the time allocated for the applicants to apply for their cases in court. However, unlike the New South Wales, the eligibility of the applicants is not limited and hence leading to the non-genuine claims. It is also recommended that the legislation should ensure that the eligibility of the applicants is set in order to eliminate the non-genuine claims. References Administration and Probate Act 1958 (Vic). Whitehead v State Trustees Ltd [2011] VSC 424 (2 September 2011) [326]. Re Bull; Bentley v Brennan (No 2) [2006] VSC 226 (30 June 2006) [7]. Webb v Ryan (Costs) [2012] VSC 431 (20 September 2012) [33]. Victorian Law Reform Commission, Succession laws. Report. 2013. Cashmore, Judy, et al. "Shared care parenting arrangements since the 2006 family law reforms: Report for: Australian Government, Attorney-General's Department." (2010). Bradbrook, Adrian John, et al. Australian Real Property Law. Lawbook, 2011. Gleeson, Kate. "A Voice for the injured: Bettina Arndt and Australian family law| Macquarie University ResearchOnline." (2013). Graycar, Reg. "Family law reform in Australia, or frozen chooks revisited again." Theoretical Inquiries in Law 13.1 (2012): 241-70. Read More