76517 Succession
Warning: The information on this page is indicative. The subject outline for a
particular session, location and mode of offering is the authoritative source
of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.
Subject handbook information prior to 2017 is available in the Archives.
Credit points: 6 cp
Result type: Grade and marks
Requisite(s): 70517 Equity and Trusts
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.
Description
Succession concerns the legal transfer of rights and obligations upon death. As an area of legal practice, succession regulates a deceased person's transfer of property, their directions upon death and the administration of their estate. Wills form a significant component of succession law, including the drafting, interpreting and challenging of wills as well as what happens at law when a person dies without a will.
This subject takes a theoretical and practical approach to the study of the law of wills in New South Wales with references to other laws where appropriate. Students consider the interpretation and application of relevant case law and the Succession Act 2006 (NSW) and investigate the legal requirements of a valid will, including the requirement of testamentary capacity and the circumstances courts use to determine whether a will is valid. Legislation and case law concerning informal testamentary documents are examined and, through a series of fact scenarios, students consider how the law may determine succession and the disposition of property.
Family arrangements are a changing phenomenon in society and connected issues of succession are also considered. A focus on the themes of testamentary freedom, forced succession and familial responsibility invites students to consider what 'family' actually means, including blended families and the status of adopted, IVF and surrogate children in the scheme of succession to property upon death in NSW.
Students apply their legal knowledge and develop their skills in drafting valid wills. They also practise critically analysing client problems regarding a succession issue and drafting an appropriate advice. Written communication is an important component of the work of lawyers and other professionals, particularly in succession cases involving people's emotions. In this subject students have ongoing opportunities to build their capacity to write succinctly and clearly.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Apply key concepts of the common law of succession and legislation to identify the requirements for a valid formal will and the circumstances in which the court gives recognition to informal testamentary documents. |
|---|---|
| 2. | Identify, analyse and evaluate legal issues when accepting a client???s instructions in order to draft a valid will that complies with statutory and common law requirements. |
| 3. | Critically analyse and evaluate fact scenarios that consider the construction and validity of wills, the provisions for intestacy, administration of estates and claims on estates. |
| 4. | Recognise current and future trends in succession law and effectively communicate in writing their impact on property and relationships. |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes:
- Legal Knowledge
A coherent understanding of fundamental areas of legal knowledge including the Australian legal system, social justice, cultural and international contexts and the principles and values of ethical practice. (1.0) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively including an ability to identify and articulate legal issues, apply reasoning and research, engage in critical analysis and make reasoned choices. (3.0) - Communication and Collaboration
Effective and appropriate communication skills including highly effective use of the English language, an ability to inform, analyse, report and persuade using an appropriate medium and message and an ability to respond appropriately. (5.0)
Teaching and learning strategies
Strategy 1. Students’ Preparation for Learning: Students prepare for weekly seminars prior to class through prescribed reading of cases, legislation, articles and online resources. The prescribed reading and proposed timetable for classes is included in the Program (below). This pre-reading enables students to develop knowledge that forms the basis of their class participation, including whole class and small group collaborative discussions. Preparation also enables students to test their knowledge and understanding through the online discussion. UTSOnline is where students access material for self-directed learning and engage in student-led discussion on key topics. Students share their questions and ideas on the open discussion forum (UTSOnline), with guidance and feedback from the lecturer. The discussion forum enables students to share their ideas in plain language and to apply appropriate written communication skills, including responses to peer and lecturer comments in a professional manner.
Strategy 2. Lecture and Seminar with Student Participation: Lectures are integrated with seminar discussions and are a key learning base for this subject. Lectures introduce students to succession legal principles and issues. The lecturer introduces topics at the beginning of each lecture and takes students through the relevant legislative provisions and case extracts from the prescribed text. Students are encouraged to ask questions, challenge ideas and test their understanding during lectures. Hypothetical will scenarios and estate disputes form the basis for class and small group problem solving.
Strategy 3. Self-directed Learning and Seminar Discussions: In weekly seminars, students engage in discussions and deliver oral presentations (including reflective statements) on various aspects of succession through case scenarios. In-class exercises are designed to assist students to understand the principles of will drafting, to collaboratively practise and to receive immediate in-class feedback on their drafts.
Strategy 4. Collaborative Problem-Solving and Seminar Presentations: All students collaborate in problem-solving exercises and work together on oral presentations on aspects of testamentary disposition and family provision litigation. They explore negotiated resolution options through examination of case scenarios. Students also develop their research and academic and professional writing skills through analysis of issues, evaluation of options to resolve these issues and preparation of written responses through class practices and assessments.
Strategy 5. Ongoing Feedback: Structured verbal feedback from the lecturer and class members is provided individually and to each seminar group on weekly seminar activities (starting in Week 2), including self-assessment tasks and oral presentations. Weekly in-class feedback responds to students’ problem-solving strategies and will drafting skills. There are also ongoing opportunities to receive immediate in-class feedback, particularly responding to students’ understanding of how the Supreme Court of New South Wales Probate Rules and Practice Notes relate to family provision claims. Students receive detailed guidance regarding the assessment criteria and formal feedback on Assessments tasks 1 and 2.
Subject Delivery
This subject is taught over 12 weeks: Week 1 is online preparation (not face-to-face) followed by 11 seminars delivered in a 3-hour combined lecture and seminar format.
Content (topics)
- Death and its aftermath: Why a will? What is Family?
- Taking Instructions for a will
- Will formalities
- Dispensing with formalities
- The testator’s state of mind: mental capacity to make a will; undue influence; fraud; burden of proof
- Republication and Revival; testator changes mind: revocation & alteration of wills
- Establishing the text: Mistake, Rectification and the Probate Court
- Construction of wills
- Failure of Gifts and Intestacy
- Legal Personal Representatives of Estates
- Administration of estates by the legal personal representative
- Family Provision or 'forced succession'
- Supreme Court Practice and Procedure in relation to family provision claims and contested applications for grants of probate
Assessment
Assessment task 1: Seminar Preparation, Participation and Presentations
| Intent: | The integrated lecture and seminar model provides students with an opportunity to reflect on their learning from prior experiences, discuss current succession topics and explore ways to resolve clients’ problems and issues. |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0 and 5.0 |
| Weight: | 25% |
| Length: | 1,000 words equivalent. |
| Criteria: |
|
Assessment task 2: Succession Research Synthesis
| Intent: | Students investigate issues that align with their interests in the law of succession and receive feedback to enable them to develop their skills of written communication (Option A) or oral and written communication (Option B). |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0 and 5.0 |
| Weight: | 35% |
| Length: | Option A: Essay of 2,000 words OR Option B: Presentation (20 mins) and Summary (1,000 words) |
| Criteria: | Essay
Oral Presentation and Written Summary
|
Assessment task 3: Will Drafting and Advice
| Intent: | This assessment task provides students with the opportunity to practise their critical analysis and evaluation skills and apply their learning in succession law to produce a written explanation of legal issues in the form of an advice and drafted will. |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0 and 5.0 |
| Weight: | 40% |
| Length: | 2,000 words (total) |
| Criteria: |
|
Required texts
Rosalind Croucher & Prue Vines, Succession Law - Families, Property and Death, (Butterworths, 4th ed, 2013). [In this Subject Outline, referred to as “C & V”]
Keith Mason and Leslie G Handler, Succession Law & Practice NSW, (LexisNexis, 2008) (loose- leaf service - available online)[In this Subject Outline, referred to as “M & H”]
Succession Act (NSW) 2006 [In this Subject Outline, referred to as “SA”]
Probate and Administration Act (NSW) 1898 [In this Subject Outline, referred to as “PAA”]
Property (Relationships) Act (NSW) 1984 [In this Subject Outline, referred to as “PRA”]
Recommended texts
The most up-to-date and useful resource for students, as for practitioners who practice in the area of succession law, is “Succession Law and Practice, NSW” which is a loose-leaf and online service published by LexisNexis Butterworths. This is because the nature and extent of legislative changes affecting this area of the law has been in a state of flux over the last three to four years. Accordingly students should, at the earliest opportunity, familiarise themselves with this service.
Of the below suggested references, Certoma’s The Law of Succession in New South Wales (4th ed.) (though a little out of date) has the advantage of its local concentration. This text is concise and should therefore be a useful adjunct to the denser core text. However, if students wish to acquire a text in addition to the core text (C&V) then they should consider Principles of Australian Succession Law, 2nd Edition, LexisNexis, Butterworths, 2013 by Mackie. It has an excellent and detailed contents page with topics listed in a way that will resonate with the cases and materials in C&V.
Geddes et al is essentially an annotated version of the Wills, Probate & Administration Act 1898 (NSW) (now partly repealed). Its authors have extensive experience from within the Supreme Court Probate Registry that gives their commentary considerable authority.
Hutley’s contains a comprehensive selection of useful precedents for the drafting of clauses of a will together with commentary and is relatively current.
As indicated above all students should exercise caution when referring to secondary texts in the area of Succession law because of the extensive legislative repeals, changes, amendments and enactments in this area since 1 March 2008.
Although the Family Provision Act 1982 (NSW) was repealed on 1 March 2009 it still applies to the estates of persons who died before that date and it will still be a relevant piece of legislation for students.
- Dal Pont and Mackie, Law of Succession, LexisNexis Butterworths, 2013;
- JK de Groot & BW Nickel, Family Provision in Australia, 4th edition, LexisNexis Butterworths, 2012;
- L Englefield, Australian Family Provision Law, LBC, 2011;
- GL Certoma, The Law of Succession in New South Wales, 4th ed., LBC, 2010;
- Birtles and Neal, Hutley’s Australian Wills Precedents, 8th edition, Butterworths, 2013 (the earlier edition will also be adequate)
- R Geddes et al., Wills, Probate and Administration Law in New South Wales, LBC, 1996;
- Ken Mackie, Principles of Australian Succession Law, 2nd Edition, LexisNexis, Butterworths, 2013;
- P Vines, Butterworths’ Student Companions – Succession, Butterworths, 1996. This text is rather out-of-date and therefore of limited utility, particularly in relation to legislative references. However it does have concise statements of general principles that may be of assistance.
References
Reports, Journals and General References
1. Queensland Law Reform Commission (“QLRC”) Miscellaneous paper 28: Report to the Standing Committee of Attorneys General on Family Provision, December 1997: http://www.qlrc.qld.gov.au/__data/assets/pdf_file/0009/372087/mp28.pdf Approximately 264 pages long;
2. QLRC Report 52. The law of wills, December 1997: http://www.qlrc.qld.gov.au/__data/assets/pdf_file/0019/372520/r52.pdf Approximately 174 pages long;
3. NSW Law Reform Commission Report 85, Uniform Succession Laws: the Law of Wills, April 1998;
4. NSW Law Reform Commission Report 110, Uniform Succession Laws : Family Provision, May 2005;
5. QLRC Report 58. Family Provision: Supplementary report to the Standing Committee of Attorneys General, July 2004: http://www.qlrc.qld.gov.au/__data/assets/pdf_file/0010/372529/r58.pdf Approximately 141 pages long;
6. NSW Law Reform Commission Report 116, Uniform Succession Laws : Intestacy, April, 2007;
7. Australian Succession and Trusts Law Reports, Haines, Croucher & Wright, Lawbook Co;
8. Construction of Wills in Australia, Haines, D LexisNexis 2007;
9. Vines, 'Bleak House Revisited, Disproportionality in Family Provision Estate Litigation in NSW and Victoria', (Australian Institute of Judicial Administration 2011) 34;
10. Garb and Wood, International Succession, 3rd edition, Oxford University Press, 2010.
Other resources
Useful Websites
1. Australasian Legal Information Institute (www.austlii.edu.au)
2. Parliamentary Counsel’s Office New South Wales (www.legislation.nsw.gov.au).
3. LexisNexis. (www.lexisnexis.com.au )
