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Be nice to your parents: or else!

Introduction

The right to leave property on death to the person of your choice is fundamental to most Australians and to succession law in the common law world. Many Australians react with surprise when they learn that their free and voluntary will choices can be contested and displaced after their death by a family provision or 'TFM' action--such is the attachment to 'testamentary freedom' as it is known.

Another well-established exception to the sanctity of the will of the deceased occurs when a beneficiary who kills the deceased is disinherited as a result of the 'forfeiture rule'. Lawyers are familiar with the forfeiture rule (in US parlance 'slayer' or 'unworthy heir' rule), by which a person who directly and intentionally kills another forfeits all rights to the deceased's estate (by will, joint tenancy, intestacy or even family provision right).

This article contends that the policy of the forfeiture rule could be used to support legislation allowing disinheritance upon application to a court, where a beneficiary is proved to a high standard of proof to have abused the deceased. The definition of 'elder abuse' should draw on US criminal statutes which create a specific offence of 'elder abuse' (Australian criminal statutes have no like specific offence) and give the term wide (emotional as well as physical abuse), but specific determination. The closest precedent for such application is a new Illinois probate statute introduced in 2004. This statute draws on criminal statutes creating an offence of financial exploitation, abuse or neglect of an elderly person or disabled person and takes the further step untraversed by common law legislatures to prevent any person convicted of such offence from inheriting by reason of the death of the elderly person. (1) Exploitation, abuse and neglect are defined by reference to the relevant offence in the Illinois Criminal Code in specific terms: for example 'Financial exploitation' occurs when a 'person in a position of trust and confidence' knowingly obtains control over an elderly person's property by means of deception or intimidation (2) and 'Abuse' includes not only overt physical acts, and acts of intimidation and harassment, but acts (including acts of abandonment and omission--as defined) that endanger an elderly person's life or injure his or her health. (3)

The potential applicants would be other interested beneficiaries, personal representatives or relevant government agencies. The aim would be to provide an additional (and potentially powerful) deterrent to combat the serious and widely prevalent problem of family violence, particularly elder abuse, and to encourage through financial incentives (potential disinheritance under a will or intestacy) respectful behaviour towards elderly family members.

Reverse family provision or TFM action?

In fact this proposed action might well be described as a 'reverse family provision or TFM action'. (4) The family provision action allows willed gifts or an intestacy distribution to be set aside, when an estate does not adequately provide for (mostly) needy family members. The proposed action would allow willed gifts or an intestacy distribution to be set aside, when the conduct of the beneficiary towards the deceased falls seriously short of an acceptable standard as defined by law.

Legislative forfeiture of inheritance as a sanction for elder abuse

This extended conception of the forfeiture rule would require legislative implementation because it travels well beyond the scope of the common law rule. It would allow disinheritance to occur in circumstances where abuse was proven, regardless of whether the violence had any direct link with the deceased's death, which is a precursor to engaging the common law rule. Whether community outrage about elder abuse would be sufficient to displace attachment to testamentary freedom is worth testing in the community.

This article contends there are significant benefits to be gained from an extended concept of 'unworthy heir'. The immediate reaction is likely to be that such a sanction is not the province of succession law--criminal law and tort law are the appropriate venues. This article suggests that the existing remedies are inadequate to deal with the magnitude of the problem and inheritance-linked remedies are worth trialling in the community. China has provided a successful model for behaviour-based disinheritance (albeit in a fundamentally different legal and cultural environment). Certain US States have experimented with limited forms of behaviour-linked disinheritance and can provide some models, which might more realistically be applied to a common law legal system.

The forfeiture rule: Contentious application to battered women

The forfeiture rule has been contentious for some time in its application to a battered woman who kills her partner in defence of self in morally blameless circumstances. For a host of reasons she usually ends up pleading guilty to manslaughter, rather than risk a finding of guilty of murder upon the failure of a self defence plea. (5) Such circumstances have led some courts to apply the forfeiture rule flexibly, dependent on the circumstances of the case, though for the most part the rule has been applied quite rigidly. In the UK, NSW and ACT the problem has been addressed by the introduction of Forfeiture Acts, which give the courts discretion in the application of the rule.

The problem of the application of the forfeiture rule to battered women who kill their spouses is that the rule punishes further (beyond criminal law sanctions) victims of spouse abuse. (6) This article contends the principle of forfeiture could be used as a sanction and preventative against perpetrators of elder (including spouse) abuse. This aligns with its morally righteous genesis: to prevent those who act criminally (abuse) towards the deceased from inheriting, albeit the rule itself is directed to those who act criminally directly and intentionally causing the death of the deceased.

Elder abuse as a severe social problem without adequate remedy

The main justification to for extending the 'unworthy heir' doctrine to elder abuse is because existing family violence remedies, particularly in relation to elder abuse, are inadequate.

Elder abuse was recognized as a prevalent social problem in Australia and overseas in the late 1980s. This was later than the recognition of child abuse (1960s) and spouse abuse (1970s). The reason for this is the problem is more hidden, as elderly people are frequently isolated and immobile. Children at least are frequently in settings where they can be observed. It is underreported. US researchers believe five out of six cases of abuse are not reported. (7) Given most US States require mandatory reporting of elder abuse by relevant professionals and Australian States do not, (8) it would be reasonable to think that elder abuse is more severely underreported in Australia.

Elder abuse can occur in institutional settings or where an abuser (often a family member) cares for the elder, but recent studies show that in many cases the abuser is dependent on the elder. (9) Australian and international research shows that the majority of elder abuse victims are women, (10) probably partly because women generally live longer than men. (11) Studies of female victims of elder abuse are equivocal as to whether the typical abuser is a partner or adult child. (12)

The 'catch 22' for an elderly person caught in a cycle of abuse is more harmful than for other forms of abuse for a number of reasons. A younger abused spouse can with appropriate support forge a new life free of abuse, particularly if she can through employment become financially independent. An elder spouse rarely has such an option. The age factor is a prevalent issue, as the median age for victims of elder abuse is 77.9. (13) If the abuse is spouse abuse, often the only real alternative is living in an institutional setting. Where the abuser cares for the elder, who becomes the carer if the abuser is removed? Living with the abuse may in many cases be more palatable than institutionalisation. Where the abuser is dependent on the elder (particularly a child abuser), there may be concern as to how the abuser fares in the outside world. How does the abusing child fend for him/herself? Does the elder really want an abusing adult child to go to jail?

Traditional Remedies

Most Australian States are experimenting with improving remedies to curb the problem of elder abuse, which fall broadly speaking into the following categories:

* Criminal laws which outlaw mistreatment and provide punishment for it;

* Domestic violence statutes, which enable protection orders to be taken out against offenders in all kinds of domestic settings; and

* Private legal remedies, such as tort actions for negligence, assault or nervous shock or remedies related to financial abuse, such as undue influence or unconscionable conduct.

All of these remedies require the willingness of victims to seek help in engaging the law's protective mechanisms. For many reasons including those outlined above, victims are frequently unprepared to notify authorities and/or assert legal rights. Many elder persons have been raised with the belief that family violence is private and should not be discussed with outsiders. (14) Where the abuser is a child, there may be refusal to report because of the shame and stigma of having raised an abusive child. (15) There is a natural reluctance to instigate proceedings against family members. The stress and length of court proceedings make legal action particularly unsuited to action by elders. Many elderly victims display symptoms, such as memory loss, speech difficulties and diminished capacity, which may tell against their being believed in a courtroom, but are actually manifestations of abuse. (16) In summary, 'abused elders almost never seek protection. Instead they react with denial, resignation, psychological acquiescence, and passive acceptance.' (17)

The unlikelihood and ineffectiveness of asserting legal rights is reinforced by lack of compulsory reporting standards for health professionals for suspected cases of elder abuse in Australia. In Australia various government enquiries and working groups have recommended caution in relation to mandatory reporting. (18) This caution appears to stem from insufficient evidence of effectiveness from overseas studies of mandatory reporting systems to justify such an intrusive response which requires substantial resourcing. (19) There are also practical concerns that mandatory reporting is likely to deter abused persons voluntarily seeking assistance from professionals and ethical concerns where the victim is a competent adult. (20) In Australia mandatory reporting and investigation of child abuse is justified because children are in most cases incompetent to deal with the abuse. (21) This is not necessarily the case for adults and respect for individual autonomy underlies the lack of reporting requirements for elder abuse in Australia. (22)

New US Remedies

The United States has moved much further into the realm of new remedies than Australia, resulting from legal mandates in most US States that require professionals to report reasonably suspected instances of abuse, thus triggering action by state protective agencies. Many US State laws make failure to report suspected elder mistreatment a criminal offence, but there have been very few reported cases of prosecutions. (23) The mandatory reporting requirement has also paved the way for tort actions against professionals, who fail to diagnose and report elder mistreatment. (24) A few States have even created explicit causes of action for negligent or intentional failure to report elder abuse. (25) Seymour Moskovitz (26) has argued that such malpractice remedies against professionals are likely to be more effective in identifying and thus deterring elder abuse than the traditional remedies set out above, although to date they have only been tested in the courts in relation to failure to report child abuse. They certainly create a powerful incentive for professionals to be vigilant about detection and reporting and provide a potential avenue for compensation for victims.

Inheritance-based strategies to counter elder abuse

Given that so many instances of elder abuse go unreported, a system that promotes healthier relationships and reporting of elder abuse (without mandating it) is worth considering. In this respect the Chinese experience has much to offer.

Frances Foster (27) introduced the world to a bold and successful Chinese experience with court sanctions and rewards in the context of inheritance based on behaviour towards elderly family members. This model was introduced in a fundamentally different legal and cultural environment to our own. Respect for the aged is a well-entrenched social norm in China. However as a result of legal, social and economic reforms over the past decade, China is moving closer to a western legal system. Thus their experience and adaptations with this system may make their model of relevance to common law systems. The positive philosophy of the system and its perceived fairness by the Chinese people makes it worthy of consideration.

In Australia the only directly behaviour-based disinheritance provisions are found in the forfeiture rule or Forfeiture Acts themselves and in the concept of disentitling conduct in family provision law. In all States the court can refuse to make an order in favour of an otherwise entitled and eligible applicant for family provision (who contests a will or intestacy on the basis it does not adequately provide for him) because of character or conduct towards the deceased. (28) However, I have been unable to find a case where the applicant was disinherited for abusive behaviour towards the deceased (within the definition of elder abuse envisaged in this article), although there have been cases which have considered whether the cessation of contact between the applicant and deceased amounted to disentitling conduct. (29)

At an implicit level the relationship between the deceased and the applicant is relevant to entitlement to and the sum of a family provision award. There have been many cases where the court has noted that a spouse or children have acted dutifully towards the deceased and this is one of the relevant circumstances of a case. (30) The High Court recently made clear that 'moral duty' or 'moral considerations' are still relevant to a family provision determination, but a 'moral claim' based on having assisted the deceased will rarely succeed where the applicant can well provide for himself. (31)

Some US States have introduced limited versions of behaviour-based inheritance, seemingly based on an awareness of the Chinese model.

The Chinese experience (32)

Since 1985 when China introduced its first inheritance law, China has used a behaviour-based legislative model, which determines inheritance rights in accordance with the conduct of heirs and claimants towards the deceased. The court can consider both positive and negative acts, punish 'bad' behaviour and reward 'good' behaviour.

A much broader range of misconduct (other than killing) can disqualify a person as an 'unworthy heir'. Abandoning or maltreating the deceased in serious circumstances or tampering with a will in serious circumstances can give rise to forfeiture of inheritance under a will or intestacy. (33) It is a flexible system, which allows for limited forms of disqualification for less severe forms of misconduct, such as failing to support family members, which includes not only failing to provide personal care but also failing to provide 'spiritual comfort'. (34) In this instance, the court can declare a will partially or entirely void or reduce a wrong-doer's share of an estate. The courts and scholars have made clear that 'ordinary mistreatment', such as 'treating the decedent with insufficient respect', 'not being attentive to the decedent's care' or 'occasionally quarrelling with the decedent over trivial matters of daily life' will not warrant forfeiture, but may involve lesser forms of punishment, such as a reduction of family share. (35)

The court carefully weighs the merits in assessing if the conduct warrants penalty. For example in assessing whether forfeiture for abandonment was warranted, the court considers the deceased's financial and physical condition at the time of the alleged abandonment, as well as the status and circumstances of the claimant. (36) The court will also consider mitigating factors, such as justifiable reasons for failure to support or if the deceased explicitly declined an offer of support. (37) Considerable weight is also given to a wrong-doer's reform and repentance and to the deceased's forgiveness of the wrong-doer during her lifetime. (38)

In this flexible system, not only is bad behaviour punished, but exemplary conduct can be rewarded. (39) Even non-relatives can be recognized above any claim of relative, when they show exemplary conduct to the deceased. (40)

Frances Foster notes that the law has been a success story for Chinese society and has impacted positively:

* by creating private sources of support for the elderly and disabled;

* by assisting the government to inculcate new norms of behaviour, particularly gender equality--these norms have helped reduce family conflict; and

* in creating an inheritance system, which the Chinese people see as fair. (41)

As China has increasingly adopted western-style social, legal and economic reforms, its inheritance system has come under challenge. Alongside the introduction of the ability to own certain types of private property has come freedom of testation, as people want to pass on what they own. Today only the most serious misconduct will displace a willed gift, although the system described above remains important to intestate succession, where no will has been left. (42) Economic reforms are demanding a system with more predictability, certainty and consistency in judicial decision-making. (43) This challenges an inheritance system based on individualised justice with time-consuming demands for fact-finding about family dynamics.

The Chinese model was conceived in a social, cultural and legal context too far removed from our own to translate 'holus-bolus' to a common law legal system. However, the philosophy of the Chinese model could be used to legislate for an extended 'unworthy heir' doctrine, that permits courts to forfeit or reduce an inheritance where severe neglect or abuse is proven.

The US experience

Certain US States have begun to experiment with limited forms of behaviour-based inheritance sanctions. It is likely their genesis can be traced to the Chinese model, which Frances Foster introduced the world to in 1998. Her seminal article (44) has been referred to in many subsequent US articles.

California (45)

A 1999 amendment to the California Probate Code created excitement. (46) New section 259 was said to represent the first US enactment of a behaviour-based disinheritance provision. (47) It is explicitly an extension to the 'unworthy heir' (slayer) statute, and passed with the intention of helping combat elder abuse. The statute provides that a person guilty of elder abuse may not inherit from the elder's estate any property, damages or costs that are awarded to the deceased's estate from the abuser as a result of liability for the abuse. As such, it is very limited in its scope, because it merely prevents the inheritance of money which came into the estate as a direct result of liability for the abuse. Despite representing a very limited form of disinheritance, it is significant because it is the first real behaviour-based disinheritance provision.

Other US examples of extended conceptions of 'unworthy heir'

There are other US examples of extended conceptions of an unworthy heir doctrine, but they are based on a different philosophy. A number of US States bar parents who abandon or fail to support to children during minority as 'unworthy heirs' and some States bar spouses on similar grounds. (48) These exceptions are based on forced heirship philosophy. (49) Because children can't make a will and disinherit bad parents, the courts are able to step in and forfeit inheritance in certain circumstances. Likewise because in some States spouses are entitled to a fixed share of a spouse's estate (regardless of the terms of the will), the courts can also step in to forfeit inheritance on very limited grounds. (50)

Illinois (51)

A new Illinois probate statute entitled 'Financial Exploitation, Abuse, or Neglect of an Elderly Person or Person with a Disability', which came into effect on January 1, 2004, took a much bigger step towards behaviour-based disinheritance than California's section 259. The new law prohibits any person convicted of financial exploitation, abuse, or neglect of an elderly person from receiving any property, benefit or interest by reason of the death of that elderly person whether as heir, beneficiary, legatee. The section breaks new ground by requiring general disinheritance from the victim/deceased's estate, as a result of having abused the deceased. There is no requirement of a causal link between the abuse and the deceased's death. As such the law extends well beyond the forfeiture rule, unworthy heir or slayer doctrine.

The section is limited in requiring a conviction for elder abuse before engaging the operation of the law in forfeiture. Given the difficulties for elders in harnessing the legal process (described above), particularly criminal process, this provision may in reality have no teeth. There are no reported cases to date on the new law. However it is a clear step towards legislation generally requiring disinheritance, where there are proven instances of elder abuse.

Possible application of the Illinois model in Australia?

It is suggested that the Illinois model could be utilised in Australia as a first step to trialling inheritance-based strategies to counter elder abuse. The Illinois model is very limited in form (in requiring a conviction for elder abuse), and so avoids many of the objections to its introduction. The main arguments (apart from issues of testamentary freedom) against extending the unworthy heir doctrine to circumstances of proven elder abuse are:

* The court's discretion in forfeiture would be too wide;

* Fact-finding about family dynamics, particularly after death, is particularly difficult and time-consuming, and therefore costly in terms of court resources.

These problems would not exist if forfeiture was required only following a conviction for elder abuse within the terms of a relevant statute. There would be less subjectivity about forfeiture in these circumstances than when the court applies the forfeiture rule to direct and intentional killings.

Application of a wider model in Australia?

Given the prevalence of family abuse and the secrecy that surrounds it, requiring a criminal conviction for abuse (as in Illinois) seems to high a threshold for forfeiture to have any real impact as a deterrent to elder abuse. Criminal convictions for elder abuse are highly unlikely because elder Australians are not in a position to assert legal rights, particularly to use criminal process, against abusers (mostly family members). It is also likely to be rare for government agencies to utilise criminal process to secure criminal convictions for elder abuse, given there is no mandatory reporting of elder abuse in Australia.

To be effective in combating the problem, it is suggested the court needs to examine a wide range of evidence, for example not just criminal convictions or civil records for abuse, but medical reports, reports of government agencies and statements of witnesses. (52) Given the deceased cannot give evidence, in the absence of a conviction, a higher burden of proof is required. The standard of proof would need to clearly adopt the higher evidentiary standard required by the Briginshaw test. In Briginshaw (53) the High Court held that where a civil case involves serious allegations which may lead to findings likely to produce grave consequences for the defendant the evidence should be clear and compelling. Although this test focuses on the standard of the evidence, it has become known as the 'Briginshaw standard of proof'. (54) Thomas Shepherd's proposed US statute against family violence adopts this standard, requiring proof by 'clear and convincing' evidence. (55)

Thomas Shepherd also proposes that limits would also need to be set about the nature of the evidence submitted. The statute would need to define relevant abuse widely, but specifically. He submits that a 'pattern' (56) of abuse needs to be proven--isolated incidents should not be relevant. I believe if the relevant abuse were sufficiently serious, a one-off incident should suffice. Shepherd's proposal requires that the incidents of abuse need to have occurred within a specified period, for example, five years prior to the deceased's death and should only relate to incidents of abuse committed by adults. (57) Clearly the statute should be limited to incidents of abuse committed by adults, but a more extended time period may be acceptable.

This model would appear to impose more costly burdens on the court, because the courts would be involved in more litigation involving fact-finding about family abuse after death. Paula Monopoli (58) argues that this would not be necessarily so, because where perceived unfairness arises in estate distribution, US courts frequently 'invent' ways to allow litigation to prevent injustice occurring. (59) For example, the courts may 'strain' doctrines of undue influence, unconscionability, incapacity or principles of family provision to alleviate perceived unfairness. In any event, Australian courts have plenty of experience with discretion and fact-finding about family dynamics, because this is the business of family provision applications. American courts have far less experience with family provision-type applications, as protection for family members in the main occurs through fixed-share legislation.

Applicability of model to intestate succession only?

This scheme would certainly be more palatable in the context of intestate succession. It will be easier for the courts to disturb an entitlement which is not the product of a will. This is because the will may be the product of considered testamentary intent and theoretically a competent person can always disinherit a person who abuses them. Likewise it is possible a will-maker may consider the wrongdoing and despite it intend to treat all children (or the relevant abuser) equally on division of property despite wrongdoing. It may even be thought that such gift may help the abuser to reform or it may be that the deceased wanted to provide for grandchildren through the gift to the abuser parent. Where there is clear evidence that the gift is the product of considered testamentary intent in spite of the wrongdoing, that desire should be respected. But it is also possible that a gift to an abuser may not reflect true intent, but dependency on the abuser to an extent that it is realistically impossible to disinherit the abuser. Many studies, particularly in the context of spouse abuse, make clear that the risk of increasing violence as well as the psychological effect created by abuse (near annihilation of self-confidence and self-esteem) make it realistically impossible for a victim to end the relationship. (60) If the impact of spouse battering is such that it is practically impossible to end a relationship which is physically and emotionally injurious, it would seem to follow that it be realistically unlikely that a victim assert herself in the very positive act of disinheriting an abuser by will, albeit this is an act which can be done in secret.

Thus where there is a will, the courts would have the difficult additional task of sorting out whether the gift reflects true intent in spite of the abuse or dependency to the extent it is impossible to disinherit the abuser. That the task of discerning true intent is difficult does not mean it should not be embarked on. It is a task probate courts tackle constantly in estate cases when applying established doctrines to wills, despite the inherent difficulty that the deceased is not able to give evidence.

If the policy of the law is to protect all who are abused, then this extended concept of unworthy heir should equally be applicable to those who make wills as to those who do not, even though where there is a will the courts would have the additional burden noted above. On the other hand it is possible that intestacy may be as much a desired outcome as a will. Intestacy rules mandate a particular distributive outcome, which a person may be happy to accept. If this is the case the threshold burden of divining whether willed gifts or an intestacy distribution is the product of free and voluntary intent to benefit an abuser despite the wrongdoing is the same in both cases.

Intersection of proposed statute with existing legal doctrines

There is no doubt that existing doctrines of undue influence and unconscionable bargains and even principles of family provision (particularly disentitling conduct) would intersect with the proposed law. Interpretation of the proposed law would draw to a degree on existing doctrine. For example, in the Illinois model referred to a disinheriting event is 'financial exploitation', which occurs when a 'person in a position of trust and confidence' knowingly obtains control over a deceased's person's property by means of deception and intimidation. The court might look to a case like Smith v Glegg (61) to determine if a person is in a 'position of trust and confidence'. In Smith v Glegg an 85 year old widow made an enduring power of attorney in favour of one daughter and a will leaving her house (her only substantial asset) to the same daughter on whom she had become wholly reliant for domestic assistance, company, transport to shops and medical appointments and the management of her financial and personal affairs. She also had become estranged from her two other daughters. The following year she transferred the same house to the favoured daughter's son without consideration. The court was asked to set aside the transfer in equity and under the Powers of Attorney Act. (62) The court held there was a presumption of undue influence due to the relationship of total reliance on the favoured daughter and due to the relationship with her daughter as her attorney under the Powers of Attorney Act--likewise a 'relationship of trust and confidence'. To rebut the presumption the daughter had to show "the gift was the independent and well-understood act of a (woman) in a position to exercise a free judgment based on information as full as that of the donee." (63) There being no independent legal advice, the daughter could not rebut the presumption and the transaction was voidable.

The facts of this case provide a good illustration of a situation ripe for disinheritance under the proposed statute and provide an example of a situation where such a statute may be helpful, the general law not otherwise providing a remedy. It will be a rare case where an 88 year old (as was the case in Smith v Glegg) successfully asserts legal rights--the factor predicating court action in Smith v Glegg seems to have been the reconciliation with her two other daughters, who no doubt were instrumental in persuading their mother to instigate the relevant legal action. If the matter came before the court as an undue influence case after the widow's death in relation to the making of the will in favour of the preferred daughter, it is unlikely the court would set aside the gift, as in probate cases undue influence must be strictly provided. (64) In Smith v Glegg the widow had the benefit of a presumption of undue influence due to a special relationship between the parties, which is only available when seeking to set aside inter vivos transactions. It is submitted that making the will in favour of the daughter was an act of 'obtaining control of the deceased person's property' and a good illustration of a situation where disinheritance should occur, but is unlikely to be available under the existing doctrine of undue influence in probate cases.

One means of extending existing remedies would be to allow equitable doctrines to be raised in probate cases, so as to make available the more relaxed rules in relation to burden of proof, eg the presumption of undue influence in certain relationships or where certain facts exist. (65) The traditional rationale for differing rules is because deceased is not available to give evidence in probate cases. However, there are cases where the court after the relevant party's death is asked to set aside in equity a transaction entered into during the deceased's lifetime. Here the court must necessarily rely on evidence from those other than the deceased. The classic case is Bridgewater v Leahy, (66) where the High Court set aside an elderly grazier's sale of a property at a gross undervalue to his nephew some 18 months before his death as an unconscionable bargain consequent on action commenced after his death. The problems of proof in such a case where the deceased is unavailable to give evidence are no greater than in probate cases generally when the deceased is never available to give evidence.

Where the proposed statute would principally provide remedy or consequences in an area that existing law does not is in the area of generalised 'elder abuse', adopting for illustrative purposes the definition adopted by the Illinois Probate Act, as overt acts, acts of abandonment, and omissions of acts that endanger the elderly person's life or injure his or her health. (67) Unless the abuse in connected with a transaction, gift or will, and then is of such nature as to amount to undue influence or to taint the transaction or gift as an unconscionable bargain, there is no remedy in succession or equitable doctrines. This article argues that financial incentives (such as disinheritance of will or intestacy entitlement) should be used an additional deterrent to prevent and educate the public against elder abuse. That a conviction was not sought or obtained under existing domestic or family violence criminal statutes (or criminal statutes that create a specific offence of 'elder abuse') or that action in tort or equity was not instituted during the deceased's life is irrelevant. This article has discussed how elder persons face disabilities in accessing and utilising legal remedies or having these accessed on their behalf, which may mean that wrongdoing goes unpunished or without remedy during their lifetime. The possibility of disinheritance action for serious, specified abuse of an elderly person would be a powerful additional deterrent and educative tool. Its chief blessing is it does not require the elderly person to assert the right or to be involved in court action, at a time in life when this is inappropriate due to age and/or disabilities.

Conclusion

US scholar John Langbein has said that we should be thankful for foreign legal systems that act as laboratories to test and perfect reforms of inheritance law. (68) He made this comment about a minor Australian inheritance reform (the substantial compliance doctrine)--Queensland and South Australia led the world with a groundbreaking reform. It was judicial experience with two slightly different versions (in Qld and SA), that showed the world the SA model was the way to go!

Here seems to be a perfect opportunity for Australia to be grateful to China and the US, but to take reform further. Australia should consider the successful Chinese philosophy, examine the limited US forms of behaviour-based disinheritance and trial our own version. Like the substantial compliance doctrine, there is a chance to set a path for world-wide reform--and with the current progress towards Uniform Wills Acts in the Australian States with reform of succession legislation high on the political agenda, now seems the perfect time to run a trial!

An extended concept of unworthy heir would interfere with testamentary freedom. However the principle of testamentary freedom is not inviolable and significant inroads have been made on the principle through the ability to make family provision applications, which are increasing in frequency today. Increasing family violence with an aging population (69) could be a sufficient justification for the extension. It should be part of law's role to teach (70) and reward good behaviour and if this occurs through relying on financial incentives to monitor behaviour (one's own and that of others), then so be it. If society's well-being can be improved though financial disinheritance when behaviour falls seriously short of an acceptable standard, then change is worthwhile. In summary, an extended legislated concept of unworthy heir could be positive in the following ways:

* In encouraging respect towards the elderly;

* In shifting the burden from elderly victims of the need to assert legal rights, when they are at an age and have disabilities, that make this inappropriate;

* In creating a financial incentive for family members to monitor their own and other family members' behaviour towards elderly family members;

* In creating private systems of support and notification by encouraging reporting of elder abuse and assistance of those abused. (It will be hard for one beneficiary to argue for the disqualification of another beneficiary due to abuse of the deceased, if the person seeking the disqualification gave no assistance and/or reported the abuse during the deceased's lifetime); and

* In reducing reliance on State solutions, such as criminal sanctions, or the need for institutionalisation to prevent abuse occurring.

Last, but not least, the fact that family abuse occurs and is often without remedy during the deceased's lifetime does not mean it is acceptable. Behaviour-based disinheritance could be particularly powerful in preventing the silencing of family abuse in the secrecy of the home, by allowing it to be uncovered after death in the public forum of the courts. (71)

BIBLIOGRAPHY

1 Articles/Books/Reports

Bonnie Brandl and Tess Meuer, 'Domestic Abuse in Later Life' (2000) 8 Elder Law Journal 297.

Fiona Burns, 'The Equitable Doctrine of Unconscionable Dealing and the Elderly in Australia' (2003) 29 Monash University Law Review 336.

Tina Cockburn, 'Elder Financial Abuse by Attorneys: Relief under statute and in equity' (2005) June Proctor 22.

Loretta De Plevitz, 'The Briginshaw 'Standard of Proof' in Anti-Discrimination Law: 'Pointing with a Wavering Finger' (2003) 27 Melbourne University Law Review 308.

Frances Foster, 'The Family Paradigm of Inheritance Law' (2001) 80 North Carolina Law Review 199.

Frances Foster, 'Linking Support and Inheritance: A New Model from China' (1999) Winconsin Law Review 1199.

Frances Foster, 'Towards a Behavior-Based Model of Inheritance? The Chinese Experiment (1998) UC Davis Law Review 77.

Barbara Hamilton and Elizabeth Sheehy, 'Thrice Punished: Battered Women, Criminal Law and Disinheritance' (2004) 8 Southern Cross University Law Review 96.

Owen Ames and John Harley, 'Elder Abuse: Being Part of the Solution, Not Part of the Problem' (2001) 23(3) Law Society Bulletin (SA) 34.

Lisae Jordan, 'Elder Abuse and Domestic Violence: Overlapping Issues and Legal Remedies' (2001) 15 American Journal of Family Law 147.

Katheryn Katz, 'Elder Abuse' (1980) 18 Journal of Family Law 695.

Pamela Kinnear and Adam Graycar, 'Abuse of Older People: Crime or Family Dynamics?' (1999) May (No 113) Trends and Issues in Crime and Criminal Justice, Australian Institute of Criminology 1.

Kymberleigh Korpus, 'Extinguishing Inheritance Rights: California Breaks New Ground in the Fight Against Elder Abuse But Fails to Build an Effective Foundation' (2001) 52 Hastings Law Journal 537.

John Langbein, Excusing Harmless Errors in the Execution of Wills: a Report on Australia's Tranquil Revolution in Probate Law (1987) 87 Columbia Law Review 1.

Paula Monopoli, '"Deadbeat Dads": Should Support and Inheritance be linked?' (1994) 49 University of Miami Law Review 257.

Seymour Moskovitz, 'New Remedies for Elder Abuse and Neglect' (1998) 12 Probate and Property 52

Seymour Moskovitz, 'Saving Granny from the Wolf: Elder Abuse and Neglect--the Legal Framework' (1998) 31 Connecticut Law Review 77.

Seymour Moskovitz, 'Adult Children and Indigent Parents: Intergenerational Responsibilities in International Perspective' (2002) 86 Marquette Law Review 401.

Office of Status of Women, 'Two Lives--Two Worlds: Older People and Domestic Violence' (2000) Volume 2, 3.

Robin Preble, 'Family Violence and Family Property: A Proposal for Reform (1995) 13 Law and Inequality Journal 401.

Anne-Marie Rhodes, 'Abandoning Parents under Intestacy: Where We Are, Where We Need to Go' (1994) 27 Indiana Law Review 518.

Nina Santo, 'Breaking the Silence: Strategies for Combating Elder Abuse in California' (2000) 31 McGeorge Law Review 801.

Thomas Shepherd, 'It's the 21st century ... Time for Probate Codes to address Family Violence: A Proposal that deals with the realities of the problem' (2001) 20 St Louis University Public Law Review 449.

Nancee Biviano, 'Abuse of the non-institutionalised aged: Dilemmas of policy and practice' (1999) 49 Australian Social Work 41.

Kadi Weck, 'The Illinois Probate Act: New Weapon in the Fight Against Elder Abuse' Journal of Du Page County Bar Association (2004) February http://www.dcba.org/brief/febissue/2004/northern0204.htm at March 2005.

2 Legislation

California Probate Code

Illinois Probate Act 1975

Illinois Criminal Code 1961

Forfeiture Act 1982 (UK)

Forfeiture Act 1991 (ACT)

Forfeiture Act 1995 (NSW)

People's Republic of China Inheritance Law 1985

Powers of Attorney Act 1998 (Qld)

3 Case Law

Bowcock v Bowcock; Re Bowcock and TFM Act [1969] 2 NSWLR 700.

Bridgewater v Leahy (1998) 194 CLR 457.

Goodman v Windeyer (1980) 144 CLR 490

Johnson v Buttress (1936) 56 CLR 113.

Gordon v Parks (1989) 17 NSWLR 1.

Howarth v Reed Unreported, SC(NSW), 15 April, 1991.

Smith v Glegg [2005] 1 Qd R 561.

Vigolo v Bostin (2005) 79 ALJR 731.

Winter v Crichton (1991) 23 NSWLR 116.

(1) 755 ILL.COMP. STAT. 5/2-6.2 (2004)

(2) 720 ILL.COMP. STAT. 5/16-1.3 (2004)

(3) 720 ILL.COMP.STAT. 5/12-19 (2004)

(4) Thanks to Tina Cockburn of QUT Faculty of Law for suggesting this analogy.

(5) Barbara Hamilton and Elizabeth Sheehy, 'Thrice Punished: Battered Women, Criminal Law and Disinheritance' (2004) 8 Southern Cross University Law Review 96, 98 n6.

(6) This is argued in the above article.

(7) Lisae Jordan, 'Elder Abuse and Domestic Violence: Overlapping Issues and Legal Remedies' (2001) 15 American Journal of Family Law 147, 148 n7.

(8) Nancee Biviano, 'Abuse of the non-institutionalised aged: Dilemmas of policy and practice' (1999) 49 Australian Social Work 41, 45.

(9) Bonnie Brandl and Tess Meuer, 'Domestic Abuse in Later Life' (2000) 8 Elder Law Journal 297, 303 n35.

(10) Office of Status of Women, 'Two Lives--Two Worlds: Older People and Domestic Violence' (2000) Volume 2, p 3. See also note 11 below at 806.

(11) Nina Santo, 'Breaking the Silence: Strategies for Combating Elder Abuse in California' (2000) 31 McGeorge Law Review 801, 806.

(12) Lisae Jordan, 'Elder Abuse and Domestic Violence: Overlapping Issues and Legal Remedies' (2001) 15 American Journal of Family Law 147, 148, notes 8 and 9.

(13) Ibid n10.

(14) Lisae Jordan, 'Elder Abuse and Domestic Violence: Overlapping Issues and Legal Remedies' (2001)

(15) American Journal of Family Law 147, 149.

(15) See Owen Ames and John Harley, 'Elder Abuse: Being Part of the Solution, Not Part of the Problem' (2001) 23(3) Law Society Bulletin (SA) 34.

(16) Bonnie Brandl and Tess Meuer 'Domestic Abuse in Later Life' (2000) 8 Elder Law Journal 297, 303 n67.

(17) Katheryn Katz, 'Elder Abuse' (1980) 18 Journal of Family Law 695, 711.

(18) Pamela Kinnear and Adam Graycar, 'Abuse of Older People: Crime or Family Dynamics?' (1999) May (No 113) Trends and Issues in Crime and Criminal Justice, Australian Institute of Criminology 1, 4; Nancee Biviano, 'Abuse of the non-institutionalised aged: Dilemmas of policy and practice' (1999) 49 Australian Social Work 41, 45-46.

(19) Ibid.

(20) Nancee Biviano, 'Abuse of the non-institutionalised aged: Dilemmas of policy and practice' (1999) 49 Australian Social Work 41, 45-46.

(21) Ibid at 45.

(22) Ibid.

(23) Seymour Moskovitz, 'New Remedies for Elder Abuse and Neglect' (1998) Probate and Property 52, 54.

(24) Ibid.

(25) Ibid at 55.

(26) Seymour Moskovitz, 'Saving Granny from the Wolf: Elder Abuse and Neglect--the Legal Framework' (1998) 31 Connecticut Law Review 77, 78.

(27) Frances Foster, 'Towards a Behavior-Based Model of Inheritance? The Chinese Experiment (1998) UC Davis Law Review 77.

(28) Qld s 41(2)(c); Vic s 96(1); SA s 7(3); WA s 6(3); Tas s 8(1); ACT s 8(3); NT s 8(3). In NSW, s 9(3) of the Family Provision Act 1992 provides that character or conduct of the applicant is a factor to be taken into account in deciding what provision, if any, should be made for the applicant. It is not a disentitling factor, but a specific factor to be taken into account the amount or type of provision to be made.

(29) Gordon v Parks (1989) 17 NSWLR 1; Howarth v Reed Unreported, SC(NSW), 15 April, 1991.

(30) For some examples see Bowcock v Bowcock; Re Bowcock and TFM Act [1969] 2 NSWLR 700, 702; Goodman v Windeyer (1980) 144 CLR 490, per Gibbs J at 498.

(31) Vigolo v Bostin (2005) 79 ALJR 731. Gleeson CJ, Callinan and Heydon J (a majority of the Court) held that the concepts and terminology of 'moral claim' or 'moral considerations' were still useful currency in determining a family provision claim.

(32) This account of the Chinese Inheritance Law is drawn from: Frances Foster 'Towards a Behavior-Based Model of Inheritance? The Chinese Experiment (1998) UC Davis Law Review 77. It is a definitive account, which draws on Chinese sources, otherwise not available to Western commentators.

(33) Ibid at 87.

(34) Ibid at 100-101.

(35) Ibid at 99.

(36) Ibid at 96-97.

(37) Ibid at 100-101.

(38) Ibid at 101-102.

(39) Ibid at 102-105.

(40) Ibid at 109-114.

(41) Ibid at 117-118.

(42) Ibid at 118-119.

(43) Ibid at 121.

(44) Ibid.

(45) This account is drawn from Kymberleigh Korpus, 'Extinguishing Inheritance Rights: California Breaks New Ground in the Fight Against Elder Abuse But Fails to Build an Effective Foundation' (2001) 52 Hastings Law Journal 537.

(46) Ibid at 571.

(47) Ibid at 571.

(48) See Paula Monopoli, '"Deadbeat Dads": Should Support and Inheritance be Linked?' (1994) 49 U Miami Law Review 257 (which sets out and reviews statutes and case decisions barring parents and spouses from inheritance in cases of abandonment, desertion or failure to support)

(49) Korpus, above n45 at 561-562.

(50) See Paula Monopoli, '"Deadbeat Dads": Should Support and Inheritance be Linked?' (1994) 49 U Miami Law Review 257, 259 n8.

(51) This account is drawn from Kadi Weck, 'The Illinois Probate Act: New Weapon in the Fight Against Elder Abuse' Journal of Du Page County Bar Association (2004) February http://wwwdcba.org/brief/febissue/2004/northern0204.htm at 15 March 2005.

(52) Thomas Shepherd, 'It's the 21st century ... Time for Probate Codes to address Family Violence: A Proposal that deals with the realities of the problem' (2001) 20 St Louis University Public Law Review 449, 453.

(53) Briginshaw v Briginshaw (1938) 60 CLR 336.

(54) Loretta De Plevitz, 'The Briginshaw 'Standard of Proof' in Anti-Discrimination Law: 'Pointing with a Wavering Finger' (2003) 27 Melbourne University Law Review 308, 309.

(55) Thomas Shepherd, 'It's the 21st century ... Time for Probate Codes to address Family Violence: A Proposal that deals with the realities of the problem' (2001) 20 St Louis University Public Law Review 449, 464.

(56) Ibid at 467.

(57) Ibid.

(58) Paula Monopoli, '"Deadbeat Dads": Should Support and Inheritance be linked?' (1994) 49 University of Miami Law Review 257, 280-281.

(59) Ibid. John Langbein also makes this comment in arguing for a more flexible will formalities doctrine, Langbein, below n68 at 28.

(60) The psychological consequences of wife battering are well understood today and have permeated case law, the seminal decision being the Canadian case of R v Lavallee [1990] 1 SCR 852.

(61) [2005] 1 Qd R 561 (hereafter Smith v Glegg); see article by Tina Cockburn on Smith v Glegg, Tina Cockburn, 'Elder Financial Abuse by Attorneys: Relief under statute and in equity' (2005) June Proctor 22-24.

(62) Powers of Attorney Act 1998 (Qld)

(63) Johnson v Buttress (1936) 56 CLR 113 at 134-135; cited by McMurdo J at [2005] 1 Qd R 561 at [43].

(64) Winter v Crichton (1991) 23 NSWLR 116.

(65) Thanks to Professor Cope of QUT Faculty of Law for this suggestion.

(66) (1998) 194 CLR 457.

(67) See definition as set out in first paragraph under heading 'Introduction'.

(68) John Langbein, Excusing Harmless Errors in the Execution of Wills: a Report on Australia's Tranquil Revolution in Probate Law (1987) 87 Columbia Law Review 1, 54. Frances Foster notes this comment in her seminal article, above n27 at 19.

(69) It is estimated that the population of Australia aged 65 and over will increase from 12% in 2000 to 26% by the middle of the 21st century. In the same period the proportion aged 80 and over will increase from 3% to 9%, Australian Bureau of Statistics, 2000.

(70) Kymberleigh Korpus, 'Extinguishing Inheritance Rights: California Breaks New Ground in Fights against Elder Abuse But Fails to Build an Effective Foundation' (2001) 52 Hastings Law Journal 537, 574.

(71) Thanks to Professor Elizabeth Sheehy of the University of Ottawa for this idea communicated during discussion, when an earlier version of this paper was presented to the Feminist Legal Academics Conference, Adelaide, 2003.

Barbara Hamilton, Lecturer, QUT Faculty of Law. Thanks to members of QUT Faculty of Law and the anonymous reviewer who provided insightful comments on drafts of this article. An earlier version of this paper was presented to the Feminist Legal Academics Conference 2003, Adelaide. The law is current as at the time the article was accepted for publication, November 2005.
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