When dealing with the administration of a deceased estate it seems obvious that you need an actual deceased person!

The ordinary course of events would run as follows;

1. Make a will naming an executor;
2. Die;
3. Executor obtains a Grant of Probate;
4. Executor administers deceased estate.

Simple right?

As a lawyer, experienced in a great variety of Estate matters (many straightforward and quite a few complicated) I can certainly vouch for the fact that this is a predictable pattern which is rarely deviated from.

However, a 2015 change to the Probate Rules, now requires that a ‘Death Certificate’ is filed with an application when seeking a Grant of Probate.   Under normal circumstances this is not an issue; in fact, it is a routine part of the general administration that follows any death.   What many people fail to appreciate is that in order to issue a Death Certificate you need an actual dead body.  Of course you don’t need a great imagination to conjure up a range of situations where providing a corpse may be a challenge.

What happens then, if you don’t have one?

Clearly, the failure or inability to present a ‘Death Certificate’ will present roadblocks when it comes to obtaining a ‘Grant of Probate’.  This grant, declared ceremoniously with a rather attractive red seal, allows for the administration of the estate and a failure to have this seal may significantly delay the sale or transfer of real estate property?

Major headache?  Absolutely. . . although I would liken it more to a migraine.

A recent Western Australian Supreme Court case of Re Paul Allan Weeks dealt with an application by the wife of someone who went missing after boarding Malaysia Airlines flight MH370, to obtain an order from the Court that he had died thereby allowing her to deal with and administer his deceased estate.

It is fundamental to any application for probate to show that the person whose estate would be the subject of the proposed grant is in fact dead. That requirement is most commonly satisfied by the production of a certificate of death. A Certificate of Death, issued by the Registrar of Births, Deaths and Marriages in this State is evidence of the facts stated in it.  Without discovery of the body, a Death Certificate cannot issue unless a Court makes a presumption of death.

A similar situation like this arose a few years ago in South Australia when abalone diver, Peter Clarkson, went missing while diving. Mr Clarkson’s business partner, who had remained on the boat from which Mr Clarkson was diving, reported seeing Mr Clarkson attacked by a shark, but no part of his body was subsequently located.

There are legal differences between an order of a Court declaring death or a presumption of death, sometimes referred to as the 7 year rule (having not seen someone alive for 7 years can lead to an order of presumption of death).  The scope and nature of an application for leave to swear to death is summarised by some old texts as follows;

Where the applicant for a grant cannot swear in his oath to the death of the deceased, and there is no direct evidence of his being dead, but only evidence from which his death may be presumed to have taken place, application must be made for an order giving him leave to swear to the death. Such a presumption may arise: (1) from the disappearance of the presumed deceased at or after a given time, and from the circumstances attending such disappearance, or from his not having been heard of for a prolonged period by those with whom he might reasonably have been expected to communicate; or (2) from his having been on board a ship, which, from its non-arrival in port within a reasonable time, from the absence of tidings of any of those on board, and from other circumstances, is supposed to have been lost at sea; and similarly in the case of a missing or totally destroyed aeroplane.

As you can see, while Probate may be granted in the absence of a Death Certificate it is not achievable without delays and a certain rigmarole.  One does not need to think too hard to appreciate the numerous, similar applications occurring in different countries around the world as a result of the Malaysia Airlines disaster.

Recently I wrote in relation to impending changes announced to Probate fees. These fees are as as described in the article “… so exorbitant there can be no other way to classify it other than the reintroduction of a death tax.”  You can read the article here.

On 4th March 2016, The Law Society of South Australia passed a motion to the Members of the Legislative Council condemning these fees.  The grounds for this are outlined below in the following memo:

The following is provided as background information for your consideration in relation to the Legislative Council’s vote as to the disallowance of the Supreme Court (Probate Fees) Variation Regulations 2016.

1. Probate filing fees have increased steadily (and at times, rapidly) each year by regulation.
2. In 2004, the fee was $565.
3. Over the next four years, the fee increases ranged from 3% to 4.14%.
4. In 2008, the fee was $651.
5. In 2009, it rose to $814, an increase of 25.04%.
6. In 2010, the increase was a modest 3.32%.
7. In 2011 it increased to $995, an increase of 18.31% over the previous year.
8. From 2012-2015, the fee increase each year has varied between 2.39% to 3.32%.
9. The graph below shows the annual probate fee increase since 2004 compared with the CPI increase over the same period.

10. Probate filing fees historically have applied to all estates, regardless of the size of the estate.
11. The Law Society does not object to annual review of fees.
12. The Law Society sees the advantage in lower fees for minor estates. However, fees valued at less than $200,000 represent a minor number of applications for probate.
13. The current increase in fees, however, represents an increase of between just under 35% and nearly 170% for the vast majority of applications for probate.
14. The fees are also now based on a gross rather than net valuation of the estate. That is unjust because it is a false valuation of the estate.
15. If a house has a gross value of $800,000 but is 80 per cent mortgaged, the real value of the estate to beneficiaries under the Will is $160,000. But they will now be charged a fee that ignores the mortgage.
16. In addition, the tiered system accompanying the gross estate valuation under the new regulations will result in even longer delays than are currently experienced in obtaining probate.
17. The new tiered system of fees will require staff of the Probate Registry to check each sub-addition and addition in each statement of assets and liabilities. This undoes previous efforts by the Probate Registry to avoid checking such statements and to shorten delays.
18. Historically, fee increases for grants of probate have not been used to upgrade the facilities at the Probate Registry – which remain very much dated and inefficient – nor have increased fees been put towards employment of additional probate staff to assist with processing and the reduction of delay.
19. Filing fees in SA are already well above the national average.
20. In WA, a flat fee of $304 applies.
21. In Victoria, the fee is $306.
22. In Queensland, the fee is $637.40.
23. In Tasmania, the fee is $400 for grants of an estate worth less $250k; over $250k the fee is $750.
24. NSW has a tiered system, much the same as that proposed in SA, but the SA fees are even greater than those of NSW.
25. In SA, the fee for an estate valued between $200-$500K is $1,500 whereas in NSW the fee for the same tier is $953. For estates valued between $500K-$1M, the new fee in SA is $2,000; in NSW, the fee is $1,460. For estates valued at more than $1M, the fee in SA is $3,000; in NSW, the fee is $3,243. NSW has yet another tier for estates worth more than $5M.
26. The Society commends the disallowance Motion to the House and submits the Motion is in the interests of removing a burdensome and unfair method for the charging of probate application fees.

Most people are probably somewhat familiar with the role of Enduring Powers of Guardianship, Medical Powers of Attorney and, to a lesser extent, Anticipatory Directions.  These various documents are the means by which an individual can express his or her medical wishes, future health care and other personal matters.  There are subtle differences between each of the documents and determining which documents were required usually only occurred in consultation with a lawyer.

I speak in the past tense because this is all about to change, in what is the most extensive overhaul of legislation related to this area of estate planning in more than 20 years.  The Advanced Care Directives Act will commence operation on 1^st July 2014.  In a nutshell an Advanced Care Directive (“ACD”) will replace the Enduring Powers of Guardianship, Medical Powers of Attorney and Anticipatory Directions.  It is a single legal document which enables competent adults to appoint one or more Substitute Decision-Makers to make medical decisions on their behalf after they lose mental capacity, to write down their wishes and preferences for future health care, residential, accommodation and personal matters.

Previously there was a large crossover between the appointment and authority/obligations on guardians and medical attorneys who may or may not have to also comply with any specific written directions contained within an anticipatory direction made separately.   Now, all health care, residential, accommodation and personal decisions are contained within one single document.

From 1^st July 2014 only an ACD is a lawful and valid way of appointing Substitute Decision-Makers and making statements about your health-care wishes and personal values.

When preparing an ACD you may choose to include statements about your wishes and values however, they should be clear, precise and well thought out.  For example, you may wish for your Substitute Decision-Maker to consult with a specific friend when making decisions about your welfare. Perhaps because of your religious beliefs, you do not wish to receive a blood transfusion, even if it is judged medically necessary to save your life.  Alternately, in the event you require supported accommodation, you would prefer to live close to a specific family member.  It is vital to remember when preparing these documents that ambiguous statements are unlikely to assist health professionals or Substitute Decision-Makers.

If you have written a refusal of health care, it must be followed if relevant to the circumstances at the time.  This means your health practitioner will not be able to give health care treatment that you have refused.  All other information written in your ACD is advisory and should be used as a guide to decision-making by your Substitute Decision-Maker, your health practitioners and anyone else making decisions on your behalf.    For instance, this may be observed in a statement about the refusal to receive life sustaining measures by artificial means or devices, if you are in the terminal phase of a terminal illness, and unlikely to return to a reasonable quality of life.

While this is a massive change for lawyers, this requires very little from the average Australian who already has documents for either Medical Powers of Attorney, Enduring Powers of Guardianship or Anticipatory Directions (assuming they were prepared and finalised before 30^th June 2014).  The old documents are still functional.  However, as experienced solicitors in this field, we always recommend careful review of all testamentary documents on a regular basis.

Who you should appoint as your Substitute Decision-Makers, in what capacity they should be chosen and what conditions, limitations or directions you should give to them is still something a lawyer is best equipped to discuss, advise and provide guidance.  Lawyers are uniquely equipped to manage expectations, provide a plethora of alternative solutions and suggestions and prepare an ACD which is uniquely suited to you, your individual needs and concerns, with a view to avoid confusion, conflict and ambiguity in the future.

For more information related to Advanced Care Directives, or for an appointment to discuss your individual needs, please contact Greg Welden or Jason Coluccio on 7225 8703