NEWS

LOST & FOUND FEBRUARY 2017

TOP 5 TIPS: HOW NOT TO LOSE YOUR CLIENT’S BENEFICIARIES

Australia is now home to over 24 million people. In the last 30 years our population has grown by 30%. Finding people is an increasingly difficult proposition…

You will never get another moment than when you are taking instructions to prepare a will with a lucid client in front of you. Capitalise on that moment with these simple tips so that estate administrators are not faced with unidentified or missing beneficiaries.

  1. OBTAIN AND INCLUDE MIDDLE NAMES
    A middle name can be key, especially in cases where the first and/or surname is common. Consider a search for “Peter Johnson” versus a search for “Peter Maxwell Johnson”. The two scenarios present very different prospects in a missing beneficiary search.
  2.  INCLUDE THE CURRENT ADDRESS FOR THE BENEFICIARY
    This is incredibly useful. It may seem unnecessary and cumbersome but knowledge of an address at the date of the will is usually the most critical piece of information for tracing beneficiaries at a future time.
  3. INCLUDE THE MAIDEN NAME FOR MARRIED FEMALES
    Marital status is not apparent in a name. If however, instead of Mary Hamilton, you draft the clause for a legacy to Mary Hamilton (nee Schultz), that makes a significant difference to later tracing her. Immediately we know this beneficiary was married at the time of the will with the maiden name Schultz, two vital leads.
  4. INDICATE WHAT RELATIONSHIP THE BENEFICIARY HAS WITH THE TESTATOR
    This provides a vital clue when mapping the deceased’s life and how the beneficiary fits into it. Is the beneficiary a friend, a niece or a cousin? Knowing this can provide a key indicator of an age range among other things. A niece will have a different age range from a brother for example. When we understand how they fit in, we formulate the appropriate strategy for finding them.
  5. ALWAYS CHECK AND DOUBLE CHECK SPELLING
    One testator wanted to leave $20,000 to Grace Shephard. But Grace Shephard is not the same person as Grace Shepherd. Our search found an extraordinary number of people with this name or a variation of it. Beware of typographical errors to avoid a wild goose chase.

The value of adopting these measures increases with time. As the testator ages and eventually dies, so too do the beneficiaries. The prospects of establishing whether they were or were not the intended beneficiary are generally poor.

Every piece of unique information recorded in the will that differentiates your client’s beneficiary from the rest of the population increases your chances of ensuring you give full effect to the testator’s wishes.

Putting these tips into practice:

 

 

 

 

Did you know that we can help properly identify and locate beneficiaries as part of drafting a will? If your client does not know where or even who they wish to leave their estate to, then you can help them find out. We recently identified all first cousins for a solicitor drafting a will. We established who they were, whether they were living and if they were living, where they were residing. It was a worthwhile investment in the future administration of the estate.

 

 

 

LOST & FOUND JULY 2015

The following article written by Charlotte Schaefer appeared in the Law Society Journal, July 2015.

SEARCHING FOR BENEFICIARIES: HOW FAR DOES A PRACTITIONER’S DUTY EXTEND?

Does a practitioner owe a duty to an actual or potential beneficiary? The recent cases of…

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LOST & FOUND FEBRUARY 2015

DID YOU SAY 1,675 BENEFICIARIES?

When recently researching for a presentation, I came upon the case of West v Weston (1998) 44 NSWLR 657.  The case, which came before Justice Young in the Equity Division of the NSW Supreme Court, centred on a clause in a will. The clause provided that the residue of the estate be divided per capita between such of the issue of the deceased’s four grandparents who were living at the date of death. Incredibly, by the time the case came to trial, a total of 1,675 beneficiaries had been identified by the genealogist!

The general rule in a fixed trust is that the beneficiaries must be sufficiently identifiable so the court can draw up a complete list of the beneficiaries at the time their beneficial interests comes into effect : Re Gulbenkian's Settlements [1970] AC 508; Lempens v Reid [2009] SASC 179; Prosper v Wojtowicz [2005] QSC 177.

Problems arise when the list of possible beneficiaries is so long that the job of precisely identifying them cannot be completed with absolute certainty. As a consequence, the respective residual entitlements of the beneficiaries also cannot be properly quantified at the time the trust comes into effect. So when can the search for beneficiaries be considered exhausted? Will the trust fail for lack of certainty?

In the United Kingdom, executors can avail themselves of Missing Beneficiaries Indemnity Insurance Cover. This protects them if unidentified beneficiaries later emerge and make claims on the estate. Our UK affiliate tells us that insurers won’t insure unless they are sure a claim is unlikely. They will look to be satisfied that a sufficient level of skilled research has been undertaken.

In Australia, we are not aware of such insurance being available. What we do know from West v Weston, as to the application of the rule of certainty for beneficiaries in Australia, is that:

The rule will be satisfied if, within a reasonable time after the gift comes into effect, the court can be satisfied on the balance of probabilities that the substantial majority of the beneficiaries have been ascertained and that no reasonable inquiries could be made which would improve the situation.

The ruling allowed the trust to stand and authorised the executor to make the distributions to the beneficiaries that had been ascertained since they had reached the point that no further reasonable inquiries could be made.

Going forward, executors will satisfy this rule if they can demonstrate they have made sufficient efforts to identify and find entitled beneficiaries. My view is, as was done in this case, that engaging the services of a professional probate genealogist who provides exhaustive, high quality research services that results in a forensic record of searches and findings that is user-friendly to the executor and the Court would certainly satisfy this requirement.

Although the executor utilised the services of a genealogist in West v Weston, the form of the report tendered was not user-friendly to the Court. Justice Young commented on the genealogists work as follows:

I must turn to the genealogist’s affidavit. It is not quite clear from her evidence as to whether she approached the matter by taking the children begotten by each of the four propositi and then going through the stocks…A pedigree or family tree would have assisted considerably in following what she has done

As experienced probate genealogists, we always work with family trees to consider and analyse our work.  It is our preference and practise that all collated, genealogical data and reports are provided to our clients with an accompanying family tree in digital and hard copy form. There is nothing quite like a visual reference which gives context and ease to navigating a family tree, especially a complex one to compliment and support the formal report on the research and findings.

Charlotte Schaefer, is Worthington Clark’s Research Team Manager and a Professional Probate Genealogist. She undertakes forensic probate genealogy work for the legal profession, private and public trustees. This includes expert probate genealogy research for intestacy cases and identifying and tracing missing beneficiaries and executors. If you need this kind of expert assistance, call Charlotte on 02 9460 3922 or email help@worthingtonclark.com

 

LOST & FOUND SEPTEMBER 2014

 

WHEN BENEFICIARIES GO AWOL

In this article, Worthington Clark’s Genealogy Lawyer, Charlotte Schaefer offers her knowledge and experience on Probate Genealogy – a forensic investigation tool for legal purposes.

When beneficiaries go AWOL – An Executor’s dilemma.

A quick and efficient administration of the estate is the ideal scenario for all families grieving a loved one. It is not uncommon to have a large number of beneficiaries in an estate and most of the time it proceeds without difficulty as the family remain in contact with one another.

Problems can arise when families have grown apart and lost track of each other. Executors can find themselves in quite a predicament when expectant beneficiaries remain unsatisfied because other beneficiaries cannot be found and the estate cannot be distributed.  The process can drag out and end up in the too hard basket with identified beneficiaries becoming increasingly frustrated.

The source of the anxiety for the Executor is the question of what happens if the estate is administered without regard to the missing beneficiaries and then a missing beneficiary emerges to claim their share. In such circumstances, it remains open for that beneficiary to seek compensation from the Executor to the value of what they would have received had the Executor made the distribution as directed under the will.

While efforts of the Executor to locate missing beneficiaries may assist them later to defend their actions, what constitutes enough “effort” to support a defence that the Executor did everything in their power to locate the beneficiary?

In a recent case, a Sydney lawyer had located 12 of the 15 nieces and nephews of the deceased named in the will. Three brothers, sons of the brother of the deceased, could not be found and other family members had no idea where they were. Despite engaging the services of a private investigator the brothers remained elusive. As well as acting in the estate, the lawyer was one of the executors. The question for him was, had he done enough?

Still ruminating on his dilemma, he came upon and quickly engaged the probate genealogy division of Worthington Clark whose specialty expert genealogy services includes tracing missing beneficiaries. Within two weeks the men were found and in contact with the Sydney lawyer who, to his and the other beneficiaries great relief, could proceed to distribute the estate to all beneficiaries named under the will.

Charlotte Schaefer, Genealogy Lawyer from Worthington Clark who solved this case explains how the forensics of tracing families can be complicated and requires analytical, lateral and strategic thinking. Typically locating women is more challenging because they often marry, but there are infinite scenarios of the diaspora of families that lead to situations where beneficiaries cannot be found regardless of gender. In this case, the brother of the deceased had died 40 years prior, the family had grown apart and the mother remarried. Two of the three brothers had taken their stepfather’s surname.

While there is no guarantee of the desired outcome, engaging an expert in this specialised area is arguably the best way to demonstrate due diligence as an Executor searching for missing beneficiaries.

Charlotte Schaefer, Worthington Clark’s in-house Genealogy Lawyer, undertakes forensic probate genealogy work for the legal profession as well as public and private trustees. This includes expert probate genealogy research and evidence to trace and prove the legitimate kinship of heirs in intestacy cases and tracing missing beneficiaries and executors. If you need this kind of expert assistance, call Charlotte on 02 9460 3922 or email help@worthingtonclark.com

 

 

LOST & FOUND AUGUST 2014

 

THE SOLUTION TO PARTIAL INTESTACIES

In this article, Worthington Clark’s Genealogy Lawyer, Charlotte Schaefer offers her knowledge and experience on Probate Genealogy – a forensic investigation tool for legal purposes.

Court requires affidavit of genealogy to grant probate for partial intestacy.

When a Sydney Lawyer recently discovered he had a partial intestacy problem, he was stumped. The NSW probate registry had requisitioned him about the $200,000 component of the estate that was effectively intestate. The beneficiary named to receive the gift under the will had died and there was no contingency, so the gift lapsed.

For a few months, he put the estate in the too hard basket. Complicating matters was the fact that the lawyer was also the Executor. Other beneficiaries were in touch with him and keen for the estate to be administered but there was no way around the fact that the requisition needed answering, but how? The deceased, his former client for whom he had drawn up the will, was an elderly lady with no spouse, no issue and no living siblings. The bulk of the estate had been left to charitable organisations.

Eventually he was referred to Charlotte Schaefer, Genealogy Lawyer at Worthington Clark. Charlotte describes ‘this was a case requiring a forensic genealogical research exercise within the statutory order provided by the Succession Act 2006 (NSW). The scale of this exercise was significant. The maternal grandfather had married twice and fathered sixteen children! This converted to 42 first cousins on that side of the family. While the paternal grandparents had only had nine children, this converted into 21 first cousins, a grand total of 63 first cousins!’

In cases of partial intestacy, where a specific gift lapses or where the testators instructions cannot otherwise be carried out, the interest must be distributed in accordance with the statutory order provided by the intestacy rules in the relevant jurisdiction. In New South Wales, the Succession Amendment (Intestacy) Act 2009 introduced a strict order on distribution of intestate or partially intestate estates. Under current law in Victoria, the ultimate outcome of distribution of a partial intestacy can be affected by testamentary benefits received by the deceased’s children and other issue. Regardless other factors that may be taken into account depending on the laws of the jurisdiction, demonstrating compliance with the statutory order of intestacy can be time consuming and complex, especially where there is no spouse, no issue and no siblings and the deceased is elderly. Such cases tend to involve tracing the movement of people and families, identifying and proving relationships and kinship over long periods of time and can lead to all parts of the world. Retaining an expert is a cost effective, proven solution for the legal profession.

Charlotte drafted an extensive affidavit of genealogy based on her research and findings. The affidavit proved the kinship of all potential heirs. Evidence of birth, marriage and death events was annexed in support of the expert testimony. Ultimately there were seven first cousins who were proven to have outlived the deceased and were named as the heirs of the remaining intestate portion of the estate.

The affidavit of genealogy was filed in answer to the requisition. Charlotte’s expert evidence satisfied the Court and probate was granted. Not only were the beneficiaries happy that the Executor could finalise the estate, they also received the extensive family tree charts Charlotte provided as a result of her research!

Charlotte Schaefer, Worthington Clark’s in-house Genealogy Lawyer, undertakes forensic probate genealogy work for the legal profession as well as public and private trustees. This includes expert probate genealogy research and evidence to trace and prove the legitimate kinship of heirs in intestacy cases and tracing missing beneficiaries and executors. If you need this kind of expert assistance, call Charlotte on 02 9460 3922 or email help@worthingtonclark.com

 

 

LOST & FOUND JULY 2014

 

FAMILIES ARE COMPLICATED

In this article, Worthington Clark’s Genealogy Lawyer, Charlotte Schaefer offers her knowledge and experience on Probate Genealogy – a forensic investigation tool for legal purposes.

Families are complicated. Unexpected things happen. People grow apart.

Every few years there is an extraordinary story of someone who died at home whose body wasn’t discovered until years later. Typically these take place in densely populated metropolitan areas making it all the more incomprehensible that the person was not missed by neighbours or family. Sometimes relatives emerge after the eventual discovery of the body and stake claim on these estates which attracts some criticism given their presumed absence during the person's living years and a failure to notice them missing. Yet, the fact is that families become estranged and grow apart, but this does not mean they are not entitled to an intestate estate. For intestate estates, the extent to which an heir rang the deceased on a Sunday or dropped by for a cup of tea or visited them in hospital when they were ill is essentially irrelevant. In some cases, they have never even met.

The whole analogy between families and trees has endured because it reflects the journey of family divergence. It provides the ultimate visual analogy of how families and individuals branch out and move in different directions across the generations. Sometimes this is gradual and happens without families even realising it. Other times families fracture suddenly, parting ways as a result of some unforgivable circumstance from which the relationships cannot recover or because of catastrophes like war. Consider the impact of World War Two on millions of families. One way or another, family members proliferate and disseminate. The creeping wall of time shifts this inevitability forward, until one day they need to be found by reason of their kinship.

It may seem inconceivable that people have no idea where their cousins are for the purposes of administering an intestate estate or there is an estate where beneficiaries are not known to those connected to its administration. They may know of the beneficiaries but have absolutely no idea where they are or even whether they are still alive. That’s quite normal and happens more often than we realise.

The process of tracing families is a forensic exercise. It is not the domain of the private investigator or the amateur genealogist. It is a specialised field in its own right requiring a high level of genealogical skill in proving and tracing kin as well as legal and drafting expertise to articulate research findings with reference to the evidence and the law applying in each case. Probate genealogy, a type of forensic genealogy, is as the name suggests, genealogy for deceased estate matters. The forensics of tracing families can be complicated and requires analytical, lateral and strategic thinking. It is often complex, not just in terms of the research but in terms of the construction of the documents that need to be fit for their purpose. Affidavits of Genealogy for intestate cases for example need to align with and respond to the relevant legal provisions to achieve their objectives of proof and determine ultimate entitlement. Forensic genealogy is also relevant in the medical context where clinical genetics laboratories investigate inherited conditions using a combination of DNA testing and forensic genealogy.

Expert genealogical evidence for legal purposes must meet the legal standard of proof such that it withstands the scrutiny of the court.  The Court, Legal Practitioners, Executors and medical experts should be positioned to rely upon it with confidence to make decisions and to carry out legal and medical processes.

Charlotte Schaefer, Worthington Clark’s in-house Genealogy Lawyer, undertakes forensic probate genealogy work for the legal profession as well as public and private trustees. This includes expert probate genealogy research and evidence to trace and prove the legitimate kinship of heirs in intestacy cases and tracing missing beneficiaries and executors. If you need this kind of expert assistance, call Charlotte on 02 9460 3922 or email help@worthingtonclark.com

 

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