Author Talk - Part 3 -Wills

Wills

A Will is defined as a written declaration providing for division of property by a living person to take effect after his or her death. 
In the State of New South Wales, as in all common law countries (save for binding local precedents), the applicable Acts are: Probate Administration Act 1898, and  Succession Act 2006.
The Probate Division of the Supreme Court of New South Wales deals exclusively with probate issues.  Two crucial questions are often encountered by legal practitoners who practice or claim expertise or specialty in probate.  These are Intestacy and Testamentary Capacity.

Intestate person is defined as one who dies and either does not leave a Will or leaves a Will but does not dispose effectively by the Will of all, or part of, his or her property. 
To make a valid Will one must be:
- over the age of 18,
- of sound mind, memory and understanding and
- must understand at the time of making the Will the nature of the act and its effect, the property being disposed of and appreciate the claim to which effect ought to be given by the Will. 

Often the question is the validity of the Will.  In brief a Will is not valid unless it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and the signature is made or acknowledged by the testator in presence of 2 or more witnesses present at the same time and at least 2 of those witnesses attest and sign the Will in the presence of the testator (not necessary that the 2 witnesses be present at the same time).

My Third Book - 'The Thumbprint Will'
The deceased is a wealthy timber merchant from Brazil, originally from Lebanon, never married and of Islamic faith.  Having retired at the age of 68, he decided to come live in Australia where he has a nephew living with his wife and six children in the western Sydney suburb of Liverpool, some 20 kilometers from Sydney.  The deceased had an elder brother and younger sister each of whom were married with children living in the City of Tripoli ,Lebanon.  A year prior to coming to Australia the deceased sold his timber business for some $30 million plus right of royalties and annual income of some $500,000.  Some six months after arriving in Australia he suffers a stroke and is admitted to Liverpool Hospital.  Three weeks later he is transferred to a nursing home. 
A will giving all the estate to the nephew is executed at the nursing home by the deceased executing the will by a thumbprint in the presence of two witnesses.  The Supreme Court of New South Wales grants probate of the will to the nephew.  The deceased elder brother obtains grant of probate in a Sunni Court in Tripoli under Sharia Law and at the same time challenges the grant of probate in favour of the nephew on the grounds of testamentary capacity. 
At the heart of this challenge is the fine distinction of how a stroke effects the cognitive capacity of the brain.  The medical evidence relied upon by the deceased brother claims that at the time the deceased placed his thumbprint on the will he had 'massive right cerebral haemorrhage and is unable to communicate or manage his financial affair'.  To counter this evidence the nephew relies on expert neurologist report that says 'that the cause of the stroke is blockage of the right cerebral artery not haemorrhage and as such damage to a cerebral hemisphere will not normally cause lasting coma'. 
This is confirmed by daily nursing home notes that showed the deceased often talking and making gestures. 
Interesting legal issues included the applicability of Sharia law and the precedence and applicability of Australian or Lebanese law and as to whether a law travels over space, oceans and time.  As at the time of writing the nephew and the uncle are each appealing to the Tamiez or the highest appellate court in Lebanon.

The Thumbprint Will

The Thumbprint Will is now available click here    
    

Tale from the Neonatal Unit

In the mid 1980's, a Japanese researcher managed to literally insert a microscopic microphone into the uterus of third trimester pregnant woman. He recorded the sounds of the fetus until it become newly born baby.  The researcher, who I suspect is a former or retired paediatrician or obestatrician, made the recording into cassettes and compact discs and tried playing the recording in the nursery of a busy women hospital initally in Japan.
The orchestral cry of some forty odd newly born babies came to almost sudden stop! The nurses, the sisters, the odd matron and all the doctors did not believe their ears.
The miraculous result was almost identically repeated at other busy women hospitals.  The researcher quickly patented the recording and, as you can appreciate, the news spread and orders for the cassettes and compact discs flooded in.

Interestingly the result obtained in women hospitals in Western European countries, the USA, Canada and Australia was close (within expected statistical devitations) to that obtained in Japan. 
What, if anything, can we conclude from this amazing research?
Regardless of our ethnicity, as neonates we hear the same uteric music.
As newly born in a hospital nursery we react universily to that uteric music and our diverse love for different type of music in later life is purely environmental.

My next blog is Part 3 of the Author Talk      

Author Talk PART 2 - Campsie Library 31 August 2011

The Least Used Part of the NSW Crimes Act 1900

Part 13A (formerly section 458) of the Crimes Act is headed 'Review of Convictions and Sentences'.

Prior to its repeal in 2006 this section allowed a prisoner to have his conviction and sentence or his sentence reviewed by a Justice of the Supreme Court.  Application for such a review effectively provided a further venue, a de-facto appeal if you will, after the prisoner had his appeal against conviction and sentence heard by the Court of Criminal Appeal.

A well prepared application would provide:

• Background summary of the prosecution evidence and any alleged errors as to the admissibility of that evidence before jury.  
• Any objections that may have been made by defense counsel on the questions of admissibility and the Presiding Judge or Justice rulings on the objections. 
• The relevant section of the Evidence Act and any decided cases in particular what the  High Court of Australia or the Court of Criminal Appeal had to say on the question.  
• The prosecutor opening address to the jury, summing up, paying special attention to comments made by the Judge or Justice.  

It is not infrequent to have prisoners who were represented by Legal Aid to complain that witnesses that they wanted called were not called and evidence they considered important to their defence was not brought before the jury or argued.  Explanations often given is that defence counsel did not consider the evidence to be relevant.  Despite that explanation, regardless of the seniority or experience of counsel giving it, most, if not all prisoners still wanted the jury and the judge to hear that piece of evidence or objection.
In cases where the prosecution places heavy reliance on warrants whether they be search warrants, surveillance, or listening devices special attention should be given to ensure that the evidence obtained and relied upon at the trial is obtained in strict compliance with the terms of the warrants.  One wouldn't be surprised to find evidence obtained by police, and for that matter highly prejudicial evidence, finding its way to the jury that was obtained illegally.  Illegally in that it was obtained outside the hours or the dates specified in the warrant.
Such evidence is inadmissible.
Applications for review making allegations of illegally obtained evidence will often result in a reviewing Justice recommending re-trial.
If the review is restricted to the question of severity of sentence, the reviewing Justice can refer the matter to the Court of Criminal Appeal with appropriate recommendations.

Let's examine the case of El Hani, a visitor to Australia on holiday, who found himself entangled in ecstasy importation syndicate, in which his host was involved knee deep.

Arrested with number of others, when police raided the premises, they charged him with two of the most serious breaches of the Customs Act.  Breaches that carry sentences to 25 years or life imprisonment.  After spending three years in goal, El Hani was advised by an inmate to enter guilty plea to the two charges.  The inmate alleged reason for the advice was that being a tourist and having served three years a Judge will send him back to his country.  El Hani's French wife and children wanted the best of the best counsel to represent him and tell the court about the great injustice committed against their loving husband and father.  They were given the name of a specialist criminal law lawyer who they instructed to find the best of the best counsel.  After retaining the best of the best to represent El Hani for a two days listed sentence hearing the worst possible and unforgivable legal error and misrepresentation that could happen in a guilty plea sentence hearing did happen.  

Murphy's Law had a field day - everything that could possibly go wrong went wrong.  

The best of the best senior counsel failed to have conference with El Hani and relied on what his instructing solicitor who had seen El Hani once for less than one hour told him. 

Instead of making simple plea and lead evidence from El Hani's wife and daughter he decided to call El Hani into the witness box.  

Having maintained his innocence of not having anything to do with the importation of the ecstacy shipment the Judge asked him that if what he is saying was correct why would he plead guilty to the most serious charges that could see him spend the rest of his life behind bars.  The best of the best senior counsel having decided to lead oral evidence from El Hani gave the legal right to the prosecution to cross examine El Hani.  

The cross examination developed into argument in which El Hani expressed his mind and frustrations with the Australian legal system.  

The Judge reached the conclusion that El Hani was the head of the ecstasy importation syndicate. 

He sentenced  El Hani to 20 years on one change and 25 years for the other charge.  

Both charges to be served concurrently. 

El Hani's wife and daughter paid the equivalent of $140,000 for this 'two day' turned into four days sentence hearing!

Application for review of El Hani sentence under Part 13A was made.

My book 'Customised Down Under' tells this tale. 

In Excerpt from Author Talk - Part 3 I will discuss wills, intestacy and the issue of testamentary capacity which is the subject matter of a real life story dealing with estate of some $30 million.  Two different legal systems, appeals, doctor reports and expert opinion.  
Compelling reading - The subject matter of my book - 'The Thumbprint Will'.       

Author Talk PART 1 - Campsie Library 31/08/11

Courts 

In all of Australia's six states the heirachy of courts are Magistrate Court, District Court (County Court in some States) and Supreme Court.
The civil appellate procedure from Magistrate court is by way of a stated case to one Justice of the Supreme Court. Currently the jurisdictional limit is $60,000. 
From the District Court, one appeals to the Court of Appeal (three Justices of the Supreme Court). Current jurisdictional limit $1million. 
From a single justice of the Supreme court one appeals to three Justices (Court of Appeal).  Unhappy litigants can only try their luck by seeking Leave to Appeal to the High Court of Australia.   As any experienced legal practitioner will tell you, the success rate of Leave to Appeal are extremely low (5%).

In criminal matters the Magistrate Court is critically important.  Before I come to this critical importance I will mention the appellate procedure.  But for a committal hearing, an unhappy traffic offender faced with a loss of his or her drivers licence or a summarily decided misdemeanor can appeal a Magistrate (now called Judge) decision to a single Judge of the District Court.  Otherwise, criminal matters are tried (heard) before Judge and Jury.  Those criminal matters are referred to as indictable matters that would have been committed for trial by Magistrate.  Thus the importance of committal hearing in the Magistrate Court.  The District Court could sentence a convicted accused to life imprisonment.  The limit a Magistrate Court could sentence a convicted accused is two years.  A convicted accused can appeal from the Magistrate Court to a single Judge of the District Court.  Unhappy with the decision of a single Judge the convicted accused can appeal to the Court of Criminal Appeal on the question of sentence.  

Like a Judge of the District Court, a Justice of the Supreme Court can sit on trials with  jury.  However trials before Justice and jury are limited to murder charges and matters of State or Federal security.  A Judge of the District Court, like Justice of the Supreme Court can sentence accused to life.

Costs

If you seek the advice or service of a Queens Counsel or what is now known as Senior Counsel you can expect to pay $8,000 plus GST per day, or $800 plus GST per hour.
Senior Junior Counsel with anything between ten plus years experience $4,000 - $5,000 plus GST per day or $600 - $700 per hour plus GST.
Of course a barrister can only appear for you or proffer advice only if he is briefed by a solicitor.  Depending upon seniority and experience solicitors hourly rates are anywhere between $300 to $750 per hour.
On top of all that you need to pay money upfront before any ear is given to your story or your version of events.

If one does believe he or she had a case and wants justice what chance does he or she has of retaining experienced legal practitioner? Nil or perhaps Legal Aid or no win no pay?
If one meets the income test and criminally charged perhaps Legal Aid can allocate you one of their lawyers.

In civil matters forget it.

What chance does a young wife with two children who lost her husband as a result of botched treatment and psychiatric assessment has of obtaining justice particularly when that justice also involves cornonial inquest and her opponent is a determined multinational insurer?  
This is precisely what the young wife faced in my book 'Observation Status'.

In Part 2,  I will talk about a forgotton section of the Crimes Act that was repealed in 2006