Book Review: Law of Succession

The recently published decision of the Supreme Court, in Ruskey-Fleming v Cook [2013] QSC 142 is a timely reminder of how complicated succession law can be both in relation to finding the facts and also in applying the law.

At almost the same time that I was considering this judgment, I received the latest offering from Professor Dal Pont and Mr. Mackie on the law of succession.

Australia has been sadly lacking in an up to date single textbook on this subject since the publication, almost a quarter of a century ago, of the second edition of Ford: Wills and Intestacy Law in Australia and New Zealand.

Thus, this book, immediately, has large footsteps in which to follow. But it does so, admirably.

As one has come to expect, when Professor Dal Pont turns his mind to a subject, he and his colleagues research it to the utmost extent. By way of illustration, by page 49 of Law of Succession , there are 118 very detailed footnotes.

Law of Succession is divided into four main parts, namely, Wills and Intestacy, Personal Representatives, Family Provision and Miscellaneous Matters. This final Part is composed of A Statutory History of Wills in England and Australia, Conflict of Laws in Succession, Costs in matters involving deceased estates and Lawyers’ Responsibility and Liability.

I think that the headings of the other parts are self-explanatory.

It comes as a matter of personal sadness whenever one sees a family torn apart by some issue surrounding the will of a deceased person. This is made worse when those in dispute assume that their costs will automatically be paid out of the estate or take the view that they will fight until the estate has been consumed by legal fees.

We can now say that the Courts are no longer agreeable to this point of view. Indeed, since 2010, the Court of Appeal in New South Wales advised that “family proceedings should always be run by the parties and their legal practitioners with a keen eye to the minimisation of costs at all stages”.¹

Para 23.22 and following should be compulsory reading for everyone involved in the practice of succession law. The authors spell out the judicially expressed need to retain a due sense of proportionality, particularly, in relation to small estates. They discuss the discretionary nature of a costs order (for example, when the litigation has been driven by deep seated emotions) and cite our UCPR, rule 681(1) as the possible exception permitting Courts to order otherwise than to follow the event.

I applaud the comment made at page 740, namely:

“The increasing recognition that unsuccessful applicants receive no ‘free pass’ as to costs, may indeed be ordered to pay costs, may have positive side effects in motivating settlement”.

My review cannot do Law of Succession justice. I hope, however, to alert readers that we now have a contemporary, detailed and analytical successor to Ford. This newly published book is highly recommended. I believe that it will become one of those, whose title will be long remembered. You will best do justice to this book, by examining it for yourself.

Brian Morgan

7^th Floor, Inns of Court, Brisbane

11^th June 2013.

Footnotes

1. Tchadovitch v Tchadovitch [2010] NSWCA 316