Inheritance disputes ' 5 more important lessons from recent case law

• Published date: 17 November 2022
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Bartier Perry
• Author: Mr Gerard Basha

The interpretation of wills and the management of inheritance disputes is relevant to so many people in our community. We highlight here the key lessons arising from recent decisions. As always, our team is available to assist in how these cases apply to individual situations.

1. Legal impact of adoption on inheritance disputes

A recent Court of Appeal decision, Daley v Donaldson [2022] NSWCA 96, looks at the legal impact of adoption on an inheritance dispute.

The case involved a family provision claim on the deceased father's estate by Mr Glenn Daley, the biological son of the deceased. The defendant executrix was Ms Dawn Donaldson, the biological daughter of the deceased.

The claim was settled at a Court ordered mediation. However, the executrix refused to sign off on the settlement because she claimed she was under a misapprehension. The primary judge refused to make orders giving effect to the settlement. As a result, the deceased's son sought the leave of the Court to appeal on a number of grounds.

The main problem in proceeding with the settlement was that at the time the settlement was agreed, the executrix did not know that Mr Daley had been formally adopted many years ago by another person. This raised the legal issue of whether Mr Daley's proper adoption meant he was no longer an 'eligible person' and so entitled to make a family provision claim on his deceased biological father's estate.

In a clear judgment, Justice of Appeal Leeming referred to sections 95 and 97 of the Adoption Act 2000 (NSW) and section 109 of the Succession Act 2006 (NSW). After acknowledging a textual error in section 95(3) and previous case law reading the intended operation, the appeal of Mr Daley was dismissed.

The prior adoption of Mr Daley had the legal result that he no longer came within the definition of 'eligible person' in section 57(1)(c) of the Succession Act. Therefore, Mr Daley was not entitled to make a family provision claim on his deceased biological father's estate.

2. COVID remote Will execution procedure incorrectly followed

The COVID-19 crisis resulted in the government introducing remote witnessing regulations to ensure people in isolation could still sign important documents such as Wills and Powers of Attorney, via audio visual link (AVL).

Many documents were signed and witnessed pursuant to the regulations.

The pandemic began to ease but there was significant community support for remote witnessing via AVL to continue with appropriate safeguards. The remote witnessing option would be available in addition to the traditional in person meeting to have documents signed and witnessed.

In NSW, the Electronic Transactions Amendment (Remote Witnessing) Act 2021 amended the Electronic...