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 is now available click here
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.
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.
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