Winds of change: law & society management of life, death and estate administration.

• Jurisdiction: Australia
• Date: 01 January 2015
• Author: Lindsay, Geoff
• Published date: 01 January 2015
• Author: Lindsay, Geoff

I INTRODUCTION (1)

Much has changed since the foundations of Australian law were laid in the 19th century. In the eyes of modern law death is now, more than formerly, less an event and more a process that may commence before, and extend beyond, physical death. Incapacity for selfmanagement is no longer, if it ever was, a rarity. Problems associated with management of the person, and property, of those unable to manage themselves or their affairs are now commonly confronted in everyday life. Individuals, living in community, are increasingly called upon to take steps in anticipation of incapacity and death. The historical boundaries between the Court's protective, probate and family provision jurisdictions have been, and are increasingly likely to be, blurred in this environment.

Take three concrete examples. The first two involve a change effected by legislation. The third involves an adaptation of existing law to meet current social challenges.

First, at the epicentre of this change, symbolising the breakdown in historical divisions, is the modern concept of a "statutory will" governed by the Succession Act 2006 (NSW), sections 18-26. It does not fit neatly within any of the three specialist jurisdictional categories under consideration. The Court is empowered, by statute, to "make" a "will" for an individual lacking testamentary capacity. (2) The notional "will-maker" is, by definition, a person in need of protection. His or her "statutory will" is likely, if not bound, to alter disposition of his or her deceased estate, being admitted to probate as if a will regularly made. Whether to authorise the making of a statutory will in the lifetime of an incapacitated person, or to leave interested parties to a family provision application after the person's death, is one of the questions entrusted to judicial discretion. The making of a statutory will provides no guarantee that a family provision application will not be made after the death of the notional will-maker but, in practice, it may have a distinct tendency in that direction, especially if the "will" made is the subject of acquiescence on the part of the will-maker's family and social circle.

Secondly, conceptually not so dramatic but, in practice, probably of more profound significance is our community's embrace of the concept of "an enduring power of attorney" (3) and "an enduring guardian". (4) Subject to the oversight of the Court and the Guardianship Division of the Civil and Administrative Tribunal of NSW ('NCAT'), appointees to the positions of Enduring Attorney or Enduring Guardian exercise, with comparative informality, powers that once would have required an exercise of the Court's "Lunacy jurisdiction". (5) since 1958 more delicately known as part of the Court's "Protective jurisdiction".5 Without the benefit of an empirical study, one can but speculate about the extent to which, notwithstanding judicial or administrative oversight, families engage in, or plan for, the succession of property between generations in the context of management (via an enduring power of attorney) of the affairs of a family member incapable of managing his or her own affairs. With expansion of community resort to protective jurisdiction mechanisms in caring for family members suffering from disabilities, and devolution of protected estate management regimes away from purely government operations, enduring powers of attorney (especially) are likely, increasingly, to become a focal point of legal proceedings, both during and after the lifetime of protected persons. If (as may reasonably be expected) the trend towards widespread use of enduring powers of attorney continues, it may have a systemic effect on the administration of deceased estates and the way probate and family provision cases are prepared.

At present, the investigations necessary, routinely, to be undertaken:

1. in the preparation of a will;

2. in the preparation of an application for a grant of probate or some other form of administration; or

3. upon consideration, as a prospective plaintiff or...