A battle over a stolen Lamborghini has shown that possession really isn’t 9/10th of the law.

It all began when a widow went searching for her late husband’s prized Lamborghini Espada, gifted to her in his will and thought to be stored in a farm shed, only to discover the car had been stolen.

Some time after it was pinched, the car was bought by a collector, who had it in his possession for four months before being contacted by local police who suspected the car might be hot.

Over the next two days, the collector did a search and discovered there was no security interest listed for the Lambo on the Personal Property Securities Register (PPSR).

He then had the car mechanically inspected and registered the car in his own name before surrendering it to police.

The Personal Property Securities Register is a national online register that can provide information to help protect consumers when they are buying personal property such as cars, boats or artworks (not including land or buildings).

If you check the PPSR before you buy, you can find out if the item you are buying has a security interest attached to it. This is important because if you buy property subject to a security interest, it is possible that the person or entity with the security interest will repossess it.

Registering the car on the PPSR in this case might provide some protection for the collector’s investment – assuming the purchase was made in good faith without knowledge of the car’s theft – in the event the party the claiming the car as stolen property couldn’t prove ownership.

But the courts disagreed, including on appeal in the Supreme Court.

The courts found the car’s original owner didn’t have to register a security interest in the vehicle as it was gifted in the will of the rightful legal owner, even though the car was never registered in the beneficiary’s name.

It just goes to show – a legal will is a powerful document, and in this case, it’s helped get a modern classic back in the hands of its rightful owner.

POST SCRIPT:

Of course, the Fast and the Furious movies would be very different if a team of glamorous international car thieves spent their lives battling a bunch of estate lawyers, but excuse us for getting excited about the power of a good will. It’s what we do.

My obsession with wax seals extended to having our business logo turned into a seal.

My fascination with the wax seal started about the same time as my fascination for all things related to Wills and Estates.  In fact, if you were to ask my wife she might suggest that they emerged from the same passion.  A few years ago she purchased me an old Probate document, circa 1880, that she came across on ebay.  The document, relating to the settlement of an estate near Murray Bridge, was meticulously handwritten with pen and ink and came complete with its original red wax seal of Probate.   It is quite special and now framed, hangs on the wall in the Conference Room in our Prospect Office.

An example of an old South Australian seal of Probate circa 1880.

Wax seals have long been associated with important documents and the Law.  In the past it was both popular and fashionable for individuals of note to possess their own unique seal that could provide an impression into wax for the purpose of finalising a contract or as a security measure for sealing a folded letter (long before secrecy envelopes were invented).  In this manner, seals were carried with the owner constantly, fashioned into a piece of jewellery such as a ring or occasionally as a pendant to be worn about the neck.  Various church organisations, institutions and of course royalty, also had seals for endorsing official documents, and these were used in a similar manner.

In Australia, as in many western countries, wax seals were used primarily for legal purposes.  As literacy rates improved, and along with technological developments in printing, the use of seals gradually declined.  Perhaps one of the few places we see an echo of this tradition is in the seals that we find on academic parchments.  Legally, the only place the seal is still used with some regularity is on a ‘Grant of Probate’ document.  In this situation, the red seal is no longer wax, rather a sticker that is cleverly embossed to provide an impressive endorsement for this important document.

Modern example of a red seal used to indicate a Grant of Probate in South Australia. It is used in conjunction with an embossing technique.

As lawyers we are often slow to embrace new technologies.  While I support the move to becoming paperless, it would sadden me immensely to see this part of our legal traditional disappear completely.  What do you think?

The Will
Despite his young age, free-spirit and hard partying lifestyle, Morrison, just two years before his death, actually made a Will. It was a very simple Will, but a Will nevertheless.
The Will left the entire estate to Morrison’s long-time companion, Pamela Courson, and, in the event that she failed to survive him by three months, then the estate would pass to his brother and sister.
The Challenges
After Morrison’s death dozens of women came forward with paternity claims (no harm in trying). While none were successful, the claims certainly slowed proceedings.
To make matters worse, Pamela Courson died three years after that of Morrison, also from a heroin overdose and also at the age of 27 years. As Pamela Courson died without a Will the Morrison fortune would then pass to her parents by operation of intestacy – a legislative procedure whereby written law (rather than a written Will) dictates who benefits from an estate in circumstances where there is no valid Will.
This did not sit well with Jim Morrison’s parents, who, at the time alleged that the common-law marriage to Pamela Courson was not legitimate. They argued that the registration of common-law marriage was not signed, nor properly registered in the State where they resided. Rather, the ceremony was one, of fun. They cited a marriage ceremony Morrison had with an earlier girlfriend in which a pagan marriage ritual was undertaken that involved such things as walking over fire and drinking each other’s blood.
That’s true love right there folks!
To the amazement of some, a Court found that the common-law marriage to Pamela Courson was valid.
Jim’s parents were not done yet.
They then claimed that the Will itself was not valid because he was under the influence of drugs at the time of execution. This was a fair argument to make, given that he was likely to be high more often than not.
If the testator (the person making the Will) was not mentally competent (Alzheimer’s or dementia or indeed under the influence of drugs) or, if they are influenced by another person, so much that the Will does not represent the testator’s wishes free from influence; then the Will is invalid and will not stand.
In the Morrison estate if the Will was invalid then the laws of intestacy would most likely provide the estate to his parents.
An out of Court settlement eventually resolved the matter, with Courson’s parents continuing to manage and control the image, music and royalties.

Conclusion
Despite Jim Morrison doing the right thing and having a Will in place, it was a very simple Will. It just goes to show you that a simple Will is usually not enough.
There are too many what-ifs and maybes that need to be considered and documented for a thorough estate plan to be implemented. This is the case for an estate worth $80 million estate, or one far more humble.
Sometimes, an overly simple Will can actually give rise to more damage than it attempts to resolve. Accordingly, it may cost the estate a lot more to rectify especially if it is unclear or ambiguous.
Every adult must have a valid and up to date Will.
There is just too much at stake.
At Welden & Coluccio Lawyers we can assist, advise and guide you through this very important aspect of estate planning, it’s more than just a Will!
Click here to have a closer look at Jim Morrisons Will.

The loss of a loved one is a profound and overwhelming experience. Not only do you need to deal with your personal grief and the roller-coaster of emotions, but you may also be responsible for finalising the financial affairs of the deceased.

The most common question we hear from our clients when they have lost their loved one is, “What do I need to do now?”

Such a question, tinged with sadness, is frequently accompanied by a degree of confusion and a feeling of ‘not knowing where to start’.

The checklist below is only intended to help you to understand what you may need to consider doing when you have lost a love one.

The first stage is to consider and understand the financial affairs of the deceased. Locating the following documents will provide you with an understanding of your loved ones affairs:

• The Last Will;
• Bank books,
• cheque accounts;
• Loan documents;
• Visa/Master card statements;
• Life insurance policies;
• Superannuation policies;
• Pension benefits;
• Refundable bond from a nursing home;
• Certificate of Titles if the deceased owned any property;
• Share documentation;
• Unpaid bills;
• Tax returns;

If the person was running their own business

• Trust documents;
• Company documents;
• Tax returns;

Although locating the above documentation can take some time, they will be critical when the time comes for administration and distribution of the Estate. Depending on the size of the Estate, a Grant of Probate may need to be obtained before any distribution of the deceased’s estate.

Should any of the deceased estate be distributed by you without a grant of Probate, you may be personally liable for any loss and therefore, it is important to know your obligations before you distribute any of the estate.

Welden& Coluccio Lawyers, the Estate Specialists, are happy to alleviate some of the burden during this difficult time and can assist you in determining if a Grant of Probate is required while preparing any applications for Court.

“My Great Aunt Edna just died and it seems she has listed me as her sole executor. I’m feeling quite overwhelmed and don’t know where to start.”

When a family member or close friend dies it is normal to feel a whole range of feelings ranging from grief to confusion. The news that you have been named as an executor may come as a surprise (although hopefully not), and will certainly heighten these emotions during what is already a busy time.

As a practicing Wills and Estate Specialist, it is not uncommon for me to receive telephone calls from next of kin on the very day that their beloved has died. At this time I like to reassure them that the important thing to do at this point is to spend time with family and friends, make funeral arrangements and (above all) celebrate the life of their loved one. Once the dust has settled, usually a few weeks down the track, is generally the best time to make an appointment to meet with a solicitor experienced in the management of Wills and Estates to discuss what needs to be done.

When a person dies they usually leave behind a Will that specifies what is to happen to their assets upon their death and who are executors – the person (or people) whose role it is to secure and distribute assets of the deceased and ensure the terms of the Will are carried out lawfully.

“What is my job as executor?”

An executor has many important duties when acting on behalf of the estate of the deceased person. They include notifying banks and other organisations identifying who the beneficiaries of the estate are and determining what their entitlements are, paying the liabilities of the deceased and any estate claims (from the value of assets held by the estate) and most importantly obtaining the grant of Probate from the Supreme Court of South Australia (or in another State).

“I’ve heard of Probate but I don’t really know what this is or what it entails on my behalf.”

A grant is the official recognition by the Supreme Court of what document or documents constitute the last Will and the right of the personal representative named to administer the estate of a deceased person.

There are two types of grants: Grants of Probate and Grants of Letters of Administration.

Grants of Letters of Administration are needed where there is no Will or the executor who has been appointed is not able to act for some reason.

All applications for grants must be in accordance with the Rules of Court which govern who is entitled to a grant and the manner in which the application must be made.

“When will I need to do this?”

Whether a grant is needed will depend on the assets of the estate. For example, a bank holding money belonging to the deceased will need to know who that money should be paid and the grant is proof that the person named (executor or administrator) is the person entitled to collect the money on behalf of the estate.

If the deceased owned a substantial number of shares in a company, the company will usually insist on seeing the grant before it will transfer them.

A grant will be required if the deceased owned a house in his or her own nameor held an interest with another party as tenant in common. The Lands Titles Registration Office will not transfer land to another person without a grant. However, real estate owned by the deceased as a joint tenant with another person cannot and will not form the subject of a grant or part of the deceased estate as the surviving joint tenant(s) are automatically entitled to the property.

On the other hand if the deceased had very minimal assets it may not be necessary for the executor or administrator to apply for Probate.

“Wow, now I’m really feeling overwhelmed. What else do I need to know about this process?”

Yes, the process for apply to the Probate Registry seeking a grant of probate or Administration is very complicated and difficult for most lay people. The application may become even more difficult if;

• the validity of the last Will is in question,
• there is uncertainty as to what constitutes the last Will
• the intended last Will has been completed incorrectly (undated or signed wrong).

The list is endless. These problems may create significant delays in dealing with estate assets and finalising the role of the executor. For these reasons, it is always recommended that you speak to a solicitor concerning the Will of a deceased especially if you are named as an executor. Of course the good news is, that in the hands of a Wills and Estate Specialist, this process should seem relatively straightforward from where you stand.

The legal world has an obsession with these lovely little words that, while sounding really special and important to those outside the profession, they really mean something which is actually quite mundane.

Take the word ‘caveat’ for instance.  The word, originating from 16^th Century Latin, translates directly to mean ‘let a person beware’.  In other words, or to put it more colloquially, it simply means to give someone ‘a heads up’.  Exciting? Mysterious? Not really.  In fact, a lot of Law is really just old words dressed up to mean very ordinary things.

Legally speaking, caveats can be put in place to give notice to the fact that an individual has an ‘interest’ in a piece of property.  In the broadest sense of the term a caveat might be used to express an interest in another form of asset (a business, shares or a car) although within the State of South Australia (at least) caveats are used for land, and any interest outside of this that you wish to seek protection for, needs to be expressed via an application to the Court.  Having said this, there is one other kind of caveat used in South Australia, that being a caveat against a Grant of Probate or, Letters of Administration; documents enacted when a person dies.

It is a common misunderstanding that caveats are used whenever money is owed.  The most important thing to be aware of is that a caveat can only be used when there exist a very real relationship with a piece of land.  Typical scenarios might include, where a person claims to have contributed to the purchase or maintenance of land (most commonly after a relationship breakdown), where a second mortgage is undertaken, in the case of unregistered leases, by government authorities (to recoup unpaid taxes or rates), or in the situation where a child may inherit land and a parent will require substantial (and ongoing) assistance and financial support.

In a nutshell, a caveat has the capacity to prevent future dealings from taking place.  For example, it can prevent the sale or transfer of land and the grant of Probate cannot be made.  Accordingly, and in order for a caveat to operate effectively (and offer you any protection) it must be applied in a timely manner.  Caveats are not something you want to put off.  Any delay could result in the very thing you are hoping to avoid occurring.

Assuming that the shoe is on the other foot; what happens if someone has placed a caveat on YOUR property?  There is always the possibility that you can warn the caveat (seek to have it removed) or, you can make an application to the Court seeking the forcible removal of the caveat.  Once again, timing is everything; seek advice promptly with a skilled legal practitioner.

Still confused?  Where caveats are concerned it is always prudent to seek the advice of a solicitor who has experience in the fine nuances of this aspect of law.

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.

A close friend approached me last week concerned that she had been nominated executor in her grandmother’s Will, she was uncertain exactly as to what this would entail.

It is a familiar scenario.  Every day executors are nominated in Wills.  Usually the nominated person is aware of this, sometimes they are not (in which case they are not alerted to this fact until the estate is enacted).  Either way, too often the nominated person is unsure of what the role entails and what Law requires of them.

What is an executor?

An executor is a person that the Will maker has nominated to be in charge of the administration of the estate following their death.

Who can be named as an executor?

The executor usually will be a family member, or alternatively, a trusted advisor such as a solicitor. The latter is always a good option if you know that there might be conflicts within the family since they can act independently.

While it is courteous to appoint an executor having advised the person of your intention, it is not something which the law mandates must occur. This accounts for the reason why many people are only aware of this appointment after a death.

What do I need to do as an executor one the love one has died?

Locating the Will is your first and most important task.  If you are aware that you are the executor from the outset then this is often straightforward.  However, this is not always an easy task and may involve quite a bit of document sorting and sifting to locate the papers.

Most people will store these alongside other important documents.  Often you will be able to locate a copy of the Will and from here you will be directed to a lawyer’s office or a trustee company for the original.   In this case it is the role of the executor to make contact with the holder of the Will, advising of the deceased’s death and requesting confirmation that they do indeed hold the original document.

At this stage it is prudent to leave the original wherever it is for the time being and ask that a couple of “certified” copies of the Will to be sent to you as the executor.

In the event that the deceased or the executor already has possession of the original Will it is imperative that the condition of the document is not altered in any way.

Did you know?  It is critical that a Will is kept in its original condition.  Do not alter the Will in any way.  This includes removing staples (even for the purposes of photocopying), adding paperclips or other fastening devices to the document, or making any written changes or erasures.  Doing any of these things will result in additional time, trouble and expense in administering the estate once an application has to be made to Court for a Grant of Probate.

As soon as possible the executor should take steps to identify and safeguard the assets.  For example a house should be made secure, insurance arrangements should be checked to see that they are adequate, Banks should be advised of the death so they can freeze the accounts, advise Centrelink and re-direct mail.

The executor is responsible for compiling a list of the various assets, including:

• Details of bank accounts;
• Other investments with banks, managed funds or financial institutions;
• Shares;
• Personal effects;
• Cars;
• House property, you will need copies of the council rates;
• Any debts that are owing to the deceased;
• Any debts that the deceased owes to other people.

Once you have gathered this this information it is time to meet with a lawyer to prepare the documentation for a Grant of Probate.  This document is legally required to allow the release any assets belonging to the estate to the nominated beneficiaries.  It is vital that you seek support from a solicitor skilled in this field of law. Too often we hear of difficulties encountered at this stage because the solicitor employed was unfamiliar with the nuances of this area of the Law.

As industry leaders in the field of Wills and Estates Welden & Coluccio Lawyers can assist you to obtain this grant within a realistic time frame so that you can relax and get on with living.

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.