E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW ISSN 1321-8247 Volume 8 Number 1 (March 2001) Copyright E Law and/or authors File: mcleod81.txt ftp://cleo.murdoch.edu.au/pub/elaw/issues/v8n1/mcleod81.txt http://www.murdoch.edu.au/elaw/issues/v8n1/mcleod81.html ________________________________________________________________________ Review of Mackie and Burton, Outline of Succession, Second edition (Sydney: Butterworths, 2000) Neil McLeod Murdoch University School of Law 1. This is a book of some 274 pages of text plus 45 pages of introductory matter and indices. According to the preface, the authors intended to provide "a concise, yet hopefully reasonably comprehensive, coverage of the law of succession in Australia". 2. Academics are often, and with justification, annoyed at the existence of slight books which seek to boil university subjects down into pre-digested dollops suitable for instant ingestion just prior to an examination. On the other hand, there is much value in a well constructed overview of an academic subject, which enables students to grasp the subject's framework before becoming immersed in its details. To be of value, that framework should be derived from, and thus facilitate, an intimate knowledge of the subject matter. The framework should act as a guide to more detailed study, point the way to the interesting complexities in the subject matter, and demonstrate an expert facility in making precise and succinct statements which accurately capture the nuances of the area surveyed. Mackie and Burton's Outline of Succession intends to provide such a framework, and it succeeds on many of the criteria just enumerated. 3. The first chapter introduces students to the history of succession in English law and elsewhere. In particular it focuses on the tensions between the testator's perceived right to freedom of testation and the perceived right of the testator's family to share in the testator's estate. Issues of Aboriginal law and comparative law are introduced, establishing a useful policy emphasis right at the beginning of the book. 4. Chapter 2 deals with 'The General Nature of a Will'. In doing so it usefully introduces students to non-testamentary transactions which also have an effect on the final size, and ultimate disposition, of a person's estate: inter vivos settlements, life assurance policies, pension and superannuation schemes, joint tenancies, joint bank accounts, and gifts in contemplation of death. Then follows a survey of the law on contracts relating to wills and mutual and joint wills. 5. The remaining chapters divide the treatment of wills along 'chronological lines'. We start with capacity and move through the issues arising from the writing of the will, its alteration, and its ultimate construction. This line of approach then breaks off and Chapter 9 deals with intestacy, and chapter 10 with family provision. (Students are, pleasingly, referred back to the discussion in Chapter 1 though perhaps more could have been made of the policy issues that underlie Chapters 9 and 10 themselves.) We then move forward in time again with Chapters 11-13 dealing with executors and administrators. (Chapter 13 opens with a helpful list of 7 duties to be discharged by executors and administrators. I was a little disappointed to find that there was no further discussion of the first two of these duties.) 6. Along the way, students encounter all of the areas of substantive law that normally make up a succession course. Chapter 3 opens with the issue of testamentary capacity. This leads naturally into a discussion of undue influence and then to mistake and rectification of wills. Chapter 4 deals with the formal requirements that must be complied with in order for a will to be legally valid, as well as the modern powers given to judges to dispense with those formalities where that is appropriate. Chapter 5 deals with the revocation and alteration of wills by the testator; Chapter 6 with republication and revival. Chapter 7 discusses the construction of wills and Chapter 8 with the ways in which specific types of gifts may fail. 7. None of the chapters exceeds 32 pages in length, and each is broken into a number of subsections. Within these subsections, good use is made of headings with the result that there is rarely more than a page between each heading. This means that the information in the book is broken down into bite-sized pieces which are designed to be easily digested (as opposed to pre-digested). There is ample reference to case-law and statutory materials in the various Australian jurisdictions. (But why is there no reference to WA legislation in footnote 1 on p 177?) 8. Each chapter concludes with a couple of questions. The purpose of these questions is not explained by the authors. They appear to represent 'sample' essay or tutorial questions on the relevant area of law. 9. The book, then, certainly aims to be the kind of book that students of succession might find useful in working towards a good understanding of the topic. However, it falls down in two important areas. Ironically, the first of these defects is precisely that which often causes problems with wills themselves. The writing is in some places ungrammatical, and in many places confused. It also makes few concessions to 'plain English'. This is particularly true of the earlier chapters. For example, at p 53 we find: The failure of the propounder's wife to give evidence and the failure by the solicitors to say who gave instructions for the will, in all the circumstances of the case, led to the inference that the propounder's wife, more or less contemporaneously with a procuring of the insurance policy and the will, determined that the testator's death should be compassed to the benefit of herself and her husband. 10. However, the later chapters are not entirely free of examples of badly mangled prose. At p 215 we read: Attempts to address the type of factual circumstances arising in In the Estate of Yearwood are fraught with the risk of being void, as the testator must not create a shifting executorship, whilst simultaneously being careful to identify the intended executors with sufficient certainty. 11. The rather uncompromising use of Latin maxims and tags also seems to increase in the second half of the book. For example, at p 247 students are hit with an untranslated reference to 'the principle actio personalis moritur cum persona. 12. In medieval English law, a proportion of the deceased's chattels passed to the deceased's immediate family by operation of law. The rest, 'the dead part', was available for gifts of the deceased's choosing. At page 4 of the book we find the following account of succession to the dead part in medieval English law, "particularly that of the twelfth and thirteenth centuries". It was thus possible for a will to be made disposing of the dead part, although commonly it was given to the church on final confession. These restrictions gradually fell into disuse however, so that, except in certain areas, by the fifteenth century it was possible to dispose of the whole personal estate by will. Intestacy, though not common at this stage, ... At what stage? The "twelfth and thirteenth centuries" or the "fifteenth"? ... was also governed by the same general custom, so that if the deceased failed to dispose of the dead part that part was to be given to the church for pious purposes, such purposes being the purchase of prayers, distribution to the poor and relief of poor relations. Jurisdiction over both testate and intestate succession was assumed by the ecclesiastical courts, most probably because of the church's claim to distribute the dead part in the case of testate succession. 13. In the case of testate succession? The preceding (56 word!) sentence discusses the church's right to control the distribution of intestate personalty only. The novice will, at the least, find this confusing. Nor can they rely on a strict grammatical analysis of what is written. This passage closes inelegantly with the sentence: "Similar powers and duties were given to administrators as those vested in executors." This is quite ungrammatical. In English things are 'similar to', not 'similar as'. The immediate cause of the grammatical breakdown is the intrusion of so much material between 'similar' and its preposition. (Cf 'The powers and duties given to administrators were similar to those vested in executors.') 14. The next paragraph concludes with the sentence: "The statute abolished the dead part so that the estate was to be distributed to the next of kin, and a complicated formula was established to determine these issues." No "issues" have, however, been referred to either in this sentence or the paragraph to which it belongs. Presumably the author means 'to govern that distribution'. There are numerous other lapses. ("This was ironical" p 6, "proportional on the value of that estate" p 8, "Tyrannical parents should not be overlooked in respect of systems that do not have such rigid division." p 10, "that which may appear at first sight as a testamentary disposition may not be such at all" p16, "Sarah will directly be sole owner" p 19, and so on.) 15. The writing abounds in passive verbs and nouns doing the work of active verbs. Many of the sentences are far too long - undoing much of the good work done in breaking the chapters into manageable sections. Much of the time the poor writing just makes the book an effort to follow - a serious enough handicap for the novice reader looking for a clear introductory overview. At other times the confusion and ambiguity goes to the heart of what is being communicated. Consider the following treatment of the Mabo decision (at p 12 of the book). In Mabo v Queensland (No 2), the common law assumption of terra nullius in respect of the settlement of Australia by the English was rejected by the High Court of Australia. The assumption was that there was no existing law in place at that time. A reader who was unfamiliar with this material might assume that the High Court had made the assumption referred to in the second sentence. This might be a logical inference from the fact that both the act of the High Court in the first sentence and the assumption in the second seem to coexist (in the imperfect tense: 'was'; cf 'The assumption had been ...'). The reader might have been saved from error had the author used a demonstrative. (For "the assumption" read 'that assumption'.) But in its absence, the reader is led astray by the fact that the reference to the "High Court" is interposed between the reference to "terra nullius" and the explanation of what terra nullius means. This would not have happened if the author had used an active verb instead of a passive one. (Cf 'In Mabo v Queensland (No 2), the High Court rejected the common law assumption of terra nullius in respect of the settlement of Australia by the English. The assumption had been that there was no existing law in place at that time.') 16. The second defect in the book is that the tables and indices, which are meant to help a student locate material within it, are defective. The cursory use I made of the Table of Statutes suggested that it would prove more of a frustration than a tool for readers. For example, according to the Table of Statutes, s 66 of the NSW Wills Probate and Administration Act 1898 is discussed at paragraph 13.40. It isn't (but try 13.42). S 20 of the WA Administration Act 1903 is supposedly discussed at paragraph 13.47. Again the correct reference is 13.42. The discussion at paragraph 11.26 is not noted at all. S 44 of the WA Act is supposedly discussed at paragraph 13.30. It isn't. There is a reference to s 44 in note 82 to paragraph 13.27. That reference is not noted in the Table of Statutes, and in any event a more appropriate reference might have been to s 43(1)(b). 17. In an attempt at a slightly more scientific evaluation of the Table of Statutes, I then checked all 25 of the entries under the Administration Act 1903 (WA). 36% of them were wrong. In addition, I noticed 2 further references to provisions of this act which are not noted in the Table of Statutes. (It may be that WA students are peculiarly ill-served by the Table of Statutes. I checked 40 of the entries for the Wills, Probate and Administration Act 1908 (NSW). 'Only' 12.5% of these were erroneous.) 18. At p 180, footnote 19 refers to the Wills Act 1903 (WA). Students attempting to follow that lead will quickly come to a dead end, there being no such act. (Read 'Administration Act 1903'. By p 230 it has become the equally non-existent Administration Act 1963.) In the Index, at p 278, the reference for "probate, solemn form" should read 12.16 not 12.6. 19. The latter chapters of the book are heavily larded with Latin tags, almost none of which are directly translated. While general paraphrases of these tags are usually given, they are not expressly labelled as paraphrases. The reader is left wondering whether there is something important concealed in the Latin. Few of the Latin phrases are mentioned in the Index, making it even harder for students to come to grips with them. For example, at p 211 and again at pp 216 and 217 the novice reader is assumed to know, or not care, what the phrase 'a grant of administration cum testamento annexo' means. (At p 220 this phrase is suddenly dropped in favour of the English version 'a grant of administration with the will annexed'.) The more interested students might seek an answer in the Index. They will not find the Latin version there. Both the Latin and English phrases are finally connected, and briefly explained at p 225. (In fact, there is also a brief explanation on p 2. But students might be forgiven for having forgotten that one - nor is it referred to in the Index.) 20. On the other hand, students with a smattering of Latin might be perplexed by the apparent translation in the reference at p 232 to "the grant of administration de bonis non (of the unadministered estate)". Mightn't the fuller form de bonis non administratis have been preferable here (cf p 227)? 21. Succession is an excellent subject in which to give students an impression of the importance of plain English drafting. This book gives no emphasis at all to that aspect of the subject. Indeed, the flaws to which I have adverted suggest that its authors have spent rather too long immersed in their primary sources!