Digital Assets You Dont Own

Prue Vines: maybe the music you have on Spotify that you think of as your music, but you don't own it because Spotify owns it, and you can't pass that on by will. If you really want to pass music on, you need to go out and buy a CD or buy a vinyl record or an old cassette so that you have the materiality of it that you can pass on to somebody else.

Prue Vines: Many of these women elders would say to me, "Could you make me a will now?" So they had gone from white fella wills are nothing to do with me to this is a way that I can actually stop having to worry about this. Because most of the communities had had a horrible burial dispute, and many of people in the community weren't speaking to each other or hadn't for several years or something like that.

Prue Vines: so you can have this situation where you can nominate the executor to get it, [00:01:00] in which case it's put into the estate, and it is part of the estate.

Prue Vines: But in most cases where people haven't done that, your superannuation is irrelevant to your estate, and your will doesn't cover 

Prue Vines: it. 

Show Intro And Guest

Speaker 3: Don't Be Caught Dead, the show bringing stories of death back to life. Here's your host, Catherine Ashton 

Catherine Ashton: today I'm speaking with Professor Prue Vines, a leading Australian legal academic at the faculty of law at UNSW Sydney, where she has taught since 1990.

Catherine Ashton: Her research sits right at the intersection of law and death. She is the co-author with Rosalind Croucher of the country's leading succession law textbook called Succession, Families, Property and Death, which is now in its sixth edition. She is the sole author of Law and Justice in Australia, and Prue's work looks [00:02:00] closely at how succession law such as wills, inheritance, and estates actually plays out for the people affected by it, with a particular focus on developing culturally appropriate wills for indigenous Australians.

Catherine Ashton: She also researches apologies and responsibility in civil liability, examining what it means when the law gets involved in acknowledging harm. Prue is a fellow of the Australian Academy of Law, co-director of the Private Law Research and Policy Group at UNSW, and has held a visiting professorship at Strathclyde University Law School in Glasgow.

Catherine Ashton: She has spent decades helping law students and the public understand that sometimes the surprising and sometimes unjust way the legal system handles death, property and family. Thank you so much for being with us today, [00:03:00] Prue. 

Prue Vines: Thank you, Catherine. 

Catherine Ashton: I am fascinated.

Catherine Ashton: Over your years where you've been helping students learn about the law, what has been some of those surprising and unjust ways the legal system handles death, property and family? 

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Why Succession Law Feels Harsh

Prue Vines: Well, I think the legal system in many ways is in a difficult position because they often have to deal with the property.

Prue Vines: They have to deal with the, the hard lines of where property ends and begins, you know, who owns it, who doesn't, things like that. And I think it's, it's also true that quite often the legal system has tried to avoid emotion. And so that means that, sometimes a [00:04:00] legal decision lands very harshly on someone.

Prue Vines: the law of succession, which when you get down to it, is really about making, making the, the fact that somebody has died less of a problem for the people left behind. I mean, really what we are trying to do is have systems in place that allow the people left behind to carry on, to have their property, to manage their lives, and so on.

Prue Vines: But often when somebody dies, the emotion that, that is ripped up by that process sometimes leads to people getting into disputes, which, have to be handled by the legal system. And then the legal system really doesn't have a whole bunch of nuances they can use. So they can only say, "You win," or, "You win," generally.

Prue Vines: And that's, you know, that's a very blunt instrument often. And so it's really a lot better if you can [00:05:00] avoid actually going to court and try and, and use all the, all the possibilities of human reason, including emotion, in solving the, the disputes and the, concerns that people have after somebody dies.

Prue Vines: And this is one of the reasons that I'm interested in wills. 

Wills As Emotional Planning

Catherine Ashton: And so is having a will the most effective way to ensure that you avoid some of those complications? 

Prue Vines: Oh, I think it is. but having a will needs to be thought of as more than just having the document. So it seems to me that it's important to see the will as part of all the things that you do to prepare yourself and your family for death.

Prue Vines: So obviously, as we get older, we know, that death is inevitable. When we're young, we often don't know death is inevitable, but we gradually have to face [00:06:00] that. and I think that as we get older, we also get more concerned about those we leave behind. and so people think of making a will, but they often think of that as only dealing with the property or the money or, or whatever.

Prue Vines: Whereas I think it's actually also a vehicle to assist with emotions. So you need to do things around the will that are going to make it possible for the next generation or whoever it is to use that will, so that things aren't, all the things aren't broken. So planning, planning for death, in the sense in which you accept that death is part of life and it's part of passing things on and so on, I think that's really important.

Prue Vines: And recognizing the emotional baggage that goes along with it is a very important part of that. And as law gets a bit more used to emotion and, and lawyers begin to be [00:07:00] a little bit more comfortable with including that, I think they're starting to say to people, "Well, how is this going to pan out?

Prue Vines: How is that person likely to react to this? Should you talk to those people beforehand?" Those sorts of things become, part of the, of the set of tools that you're trying to do to make sure that the, the, the experience of losing somebody doesn't have to be the disaster that it sometimes is. 

What A Will Actually Does

Catherine Ashton: And can you tell us a little bit about, the, the will, what it actually, what its purpose is, what its role is, a- and just the requirements for that, just if people are unfamiliar and have never done a will previously.

Prue Vines: Sure. So a will is just really a piece of writing on a piece of paper usually. and in your will you can say what you want to happen to your property after your death. So [00:08:00] your property doesn't have to be substantial. It only has to be, you know, your bank account, maybe you've got some jewelry and some household goods.

Prue Vines: that might be all you have, but it's still important to be clear about where it's going to go and who should have it. some people sometimes think, "Oh, there's no need for me to make a will because I just don't have a lot of money." that's a really common misconception, but I think that's, 

Prue Vines: People need to think in terms of when we die, it's a massive dislocation. so doing whatever it is to make that less of a dislocation will be helpful, and the will is part of that. So it can pass your property. Now, one of the tricky things is it only passes your property. So if you don't actually own something, you can't pass it by your will.

Prue Vines: Now, this means maybe the music you have on Spotify that you think of as your music, but you don't own it because Spotify owns it, [00:09:00] and you can't pass that on by will. If you really want to pass music on, you need to go out and buy a CD or buy a vinyl record or an old cassette so that you have the materiality of it that you can pass on to somebody else.

Prue Vines: And as we go into this more digital universe, some of these things become more, become tricky in terms of making a will. But certainly you own your bank account, you own your jewelry, you know, th- things like that. Those things you own. You own the books that are sitting on your shelf. You don't own the books that are within your Kindle.

Prue Vines: so those sorts of things are things you have to sort of work out while you're trying to work out what should be in your will.and but it, the other thing a will does is a will appoints an executor. S

Executors And Burial Control

Prue Vines: o the executor is like appointing somebody to be you when you can't be there. This means this person needs [00:10:00] to be utterly trustworthy, somebody you really can trust.

Prue Vines: And sometimes people appoint professionals because of that, because they feel that that's safer and the professional will know what to do and so on. Others appoint their closest people, their husband or their wife or their child, or their brother-in-law or friend, because they're the person they really trust.

Prue Vines: Now, one of the things about being an executor that people often don't think about it, especially if they're not an Aboriginal person, is that the executor is given the right to deal with the body of the person after they die. So if you can appoint an executor, then you've appointed somebody who can solve the disputes about what to do with your body because they have the right to deal with it.

Prue Vines: And so that's one of the things that many Aboriginal people that I have, talked to have been very interested in. It's been the number one thing [00:11:00] for them in relation to making a will. And they have said, "Well, I want to appoint an executor. That's the main reason for me making a will." And the long hand...

Prue Vines: alongside that they also sort out who's gonna get, you know, the money in the bank account, this particular piece of furniture, you know, those sorts of other things. mo-most non-indigenous people are not r- Don't seem to be quite so concerned about this dis- disposal of the body. And of course, most ordinary people don't think about that really, they just assume there'll be a funeral and, and so on, and people tend to muddle through that bit.

Prue Vines: that is one of the significant things about a will, which means it's quite different to die with a will where you've appointed an executor, and where the executor knows what you want to be done with your body, than if you die without a will and you die intestate. Because if you die [00:12:00] intestate, then we don't know who will have that position of administrator, which is like being an executor, and if we don't know, then you might be one of those people who ends up with a big argument about disposing of the body, and there have been many of those disputes for Indigenous Australians.

Prue Vines: And a very high proportion of people taking burial disputes to court have been Indigenous Australians. and when I say a high proportion, I'm talking about between, you know, probably around sixty percent of those, maybe more of those disputes that go to court involve an Aboriginal person. that is actually

Prue Vines: Reflective of how important sorry business is for, our Aboriginal communities and, and how [00:13:00] important taking account of the cultural concerns of our Aboriginal communities is in relation to the deaths of their loved ones. 

Catherine Ashton: And I'm just trying to work out whether we go here now, or maybe we might just finish off talking a little bit about the role of the will, because I am fascinated, with how you speak about burial rites and the role of an executor and the importance of a will when it comes to sorry business, and I really wanna go into that in some detail- Sure

Catherine Ashton: if that's okay. but at this point in time, .. someone said to me recently that the dead have no rights. 

Prue Vines: Yes. Well, that's very interesting. It's an interesting statement. In some ways it's true, in other ways it's not true. Okay. So one of the things about wills is that wills are used to [00:14:00] envelop your, your wishes, your desires, your things, and a court will enforce those.

Prue Vines: when we think about, about how wills operate, we do actually have systems that can be put into wills, like trusts for example, where somebody can say, "I want this trust to exist and I want it to run in a particular way, and I want it to run so that my great-grandchildren can get access and have to do the various things."

Prue Vines: Now, we do put limits on that. In most states of Australia now we put about an 80, 80-year limit on how long you can reach your dead hand out and control people left behind. because in general- I think that's good public policy. I don't think after you're dead you should really be able to interfere with the lives of the living.[00:15:00] 

Prue Vines: Not too much. I think you need to accept the fact that you will be dead and that's real. but when you are passing on, say money or property, and, or something that's very important to you which might be not necessarily seen very much as significant property by other groups of people, but for you is really important.

Prue Vines: So you know, if you're, maybe you're a Greek Orthodox person and you've got an icon that is incredibly important to you, and you want to pass it on in a way that it will stay in a, in your family. Or you're an Aboriginal person and you have a particular, a particular kind of customary law process that you really want to go on.

Prue Vines: there are ways in which you can protect that by putting it inside a will. and it's not always extremely difficult. 

DIY Wills And Getting Advice

Prue Vines: So of course if you, so somebody who doesn't have m- any legal expertise really shouldn't be [00:16:00] trying to draft a trust for themselves within a will. a will, if you wanna make a simple will, that's actually quite an easy thing to do, but if you wanna make a simple will you need to have a simple family.

Prue Vines: Now, that's pretty rare. but if you live in a family where you know that you have a partner, you know who they are, you know that you have children, you know who those children are, you don't have any hidden, children that you haven't met somewhere, you don't have really complicated multiple partnerships and so on, then yes, you can make a will.

Prue Vines: And the other way that you can do that yourself is if you don't own very complicated property. You don't own six huge corporations that have multiple shareholders and things like that. You basically have fairly straightforward bank accounts, houses, property, [00:17:00] whatever, and you could say something like, "I want to give all my property to so and so," or, "I want all my property to go to my partner if my partner survives me, and if they don't I want it to go to s- those of my children who survive me."

Prue Vines: That kind of will you can make yourself. Yes, of course you can. And you can appoint an executor to do it. You can use a stationer's will to do that. But really, it's not wise to do that if you're doing anything at all complicated and this is one of the reasons that people end up going to solicitors to get their will drafted because they do have something that's a little bit more complicated.

Prue Vines: we tend to think it's only rich people who do this, who need to do this, but actually having a complex family is ... can happen to anyone really. so one of the things to be thinking about in deciding whether you pay somebody to make a will for you is how much will it cost your family if you don't pay someone to do that?[00:18:00] 

Prue Vines: And the reason that I say this is that if you draft a will yourself, there are some quite strong chances that there'll be something wrong with it, and it won't actually be admitted to probate. although we do have something nowadays called the dispensing power, which means that 

Prue Vines: even if it's not properly witnessed and/or signed and so on, the judge might look at it and say, I think this really is the document that this person wanted to operate as their will, and so we won't worry about the formalities here." So we have made it easier in that respect. So that can happen.

Prue Vines: But the other problem is you can actually write something in it that means that the person you wanted to get most gets least, things like that, because you don't know enough about how debts get paid, or how tax has to come out of it and things like that. so this means that it may be worth paying a bit more than you are thinking of, like, to go to somebody [00:19:00] who really does understand, you and, and what would be the best way to put your wishes into practice.

Prue Vines: That, and write it down. while I think I am very much in favor of doing this as, you know, reasonably cheaply, there are... The thing to do is to be prepared before you get there, so that you're not sitting in a solicitor's office where the solicitor is charging you, I don't know, $200, $300 an hour, and you're sitting there and for the first time you're thinking, "Well, do I really want that to go to so and so?"

Prue Vines: If you've really thought it out and, and worked out what you really want, sometimes... And of course, one of the things you often have to think about is what you think should happen when something you really don't want to happen has happened, such as the death of a child.

Prue Vines: that's one of the things people find most [00:20:00] difficult, is to even think about the possibility that their child or partner dies before them.sometimes that's the role that the solicitor has, is to say, "We need to think about this as well." So, I think that being prepared properly before you go is going to make it cheaper for you, and that's worth thinking about.

Prue Vines: And so one of the reasons when I wrote the Aboriginal Wills Handbook, which is a pretty short little book that is available fairly freely, it's certainly available online, Is that I, I wrote it so that the first half of the book is Plan for the person themselves to use to help them work out what they want and who is their fam- in their family, who is important to them and who isn't, all of those things.

Prue Vines: Do they see their dog as part of the family? Those sort of things. and to work out exactly what property they have. And having done that, [00:21:00] to be able to take it then to a solicitor to draft the will, on the basis not only of what they've written, but that writing it all down in that form will allow the solicitor to see a will answer a whole lot of the solicitor's questions that they would otherwise ask.

Prue Vines: And then the second half is for the solicitor, who is not usually all that used to writing culturally appropriate wills for indigenous people to be thinking about, to use that. And there are a number of traps that I've just pointed out, you know, don't do this, don't do that. there are a few things you shouldn't do if you're dealing with an indigenous person in Australia.

Prue Vines: so that the will ends up being what the person needs. but the same thing applies if you're not indigenous. You need to think about it beforehand. You need to work out who's in my family, who do I think of as important, what do I want people to [00:22:00] get, and have worked out what the property is that you're talking about because otherwise the solicitor's gonna have to spend time working it all out, and that's gonna cost money.

Prue Vines: So the preparation is actually key to making it a less expensive operation. But as I said, it may be worth spending that money rather than your, the people who follow you finding they have to go to court, which is an extremely expensive proposition. so it's weighing those two things up rather than weighing up doing it myself or getting the solicitor to do it.

Prue Vines: Weighing it up in the light of what might happen afterwards is, I think, the way you need to think about it. 

Choosing A Trustworthy Executor

Catherine Ashton: And what considerations do we need to be mindful of when we're thinking about who our executors are? 

Prue Vines: Well, the thing about executors is that you have never given anybody as much power as you give an executor, [00:23:00] so maybe that's the way to think about it.

Prue Vines: So the executor is, as I said, is the executor is like you. They have all the powers that you had, pretty well. So they can sell property, they can make loans, they can... They call in the debts. They, do the tax. they might have to carry on the business for you if you are running a business until at least it can be sold.

Prue Vines: they're doing a massive number of things. they would be expected to insure your property, for example, to make sure that it all continues until it can be passed on to the appropriate people. so that person needs to be utterly trustworthy, and I think I've seen lots and lots of cases where people have Known, for example, that one of their children is a bit greedier than the others.

Prue Vines: you know your children. some people have the great advantage of thinking all their children are perfect. I don't have that [00:24:00] advantage . I adore my children, I think they're wonderful, but I know that they're different and I know what the differences are. I have seen some cases where people have given either a power of attorney or made an executor of somebody that they know is fairly greedy.

Prue Vines: I don't think that's sensible.so what I'm getting at is the need to know that person, know who they are. If you choose a professional, you have the advantage that their professional rules control them. So that's the thing about a professional. If you want to choose somebody who is your, a friend or whatever, you need to be really sure that they will carry out the wishes in your will, and that they would even if a court wasn't there to enforce it.

Prue Vines: Because in most cases, the executor will take it on, will do the job, will go through the processes, and will not need to go to, near a court except to do the [00:25:00] actual process of getting probate. And which in lots of cases, if everybody's done their job well, the getting of probate, which is the grant that says that the executor or the administrator can then deal with everything, that's done, that c- is done just by an administrative process because the witnesses have been, it's been done properly, everything looks fine, there's no question of the capacity of the testator or anything, and it's a matter of a turnaround in a matter of couple of weeks.

Prue Vines: but of course, if it looks dodgy, then it has to go to court, And that can happen even if there is no dispute. And that's what you're trying to avoid. Do not get yourself into court. 

Catherine Ashton: And you mentioned earlier the fact that the role of the executor is also to pay debts, tax, I'm assuming funeral costs.

Prue Vines: Yes [00:26:00] All of those things. Now, the executor doesn't pay for the funeral costs out of their own money, though they might initially, and they'll get it back from the estate. So the executor, basically the estate indemnifies the executor from all of these costs that it... But the executor, of course, has to make sure that the estate is capable of any debts that he incurs for the estate.

Prue Vines: all of these things are part of making sure the executor is doing the right thing by the testator and by the estate. the first thing the executor has to work out is whether the estate's solvent. Is there anything to give anyone? The first thing we have to do is pay all the debts, pay the tax, and if there's leftover, then we can start paying the beneficiaries and giving them what they want.

Prue Vines: but if the estate is taken up in debt, obviously that can't happen. 

Probate Timeline And Intestacy

Catherine Ashton: And if you can give me an [00:27:00] indication of the timeline, Pru, and just those chronological steps for people that are unfamiliar, that would be great. 

Prue Vines: Okay. So let's say somebody ... A person dies. What generally happens soon after that is they, there's a, a funeral arranged.

Prue Vines: if they have notified the executor or the executor knew the person closely, they may do that themselves because they know what is to happen, and so on. Sometimes executors don't, especially in non-Indigenous estates, sometimes the executor doesn't know immediately. so then what happens is that the person who's been named as the executor, has to work out where everything is.

Prue Vines: So they have to apply to the court for the right to act as executor, and that can take a little bit of time. if you think about it, you have to, find out where all the ... Where's the money that people, that the testator [00:28:00] owned? does the testator own ... Which property does the testator own?

Prue Vines: You know, where, where, where is it?if they have, for example, if say they had a flat that they were renting out, is the rent being paid, et cetera, et cetera. They have to work all that out. They have to be able to put together an inventory of property. and all that stuff has to go to the court, along with a copy of the will and, and, often affidavits from witnesses saying, "Yes, I'm the witness, I saw this.

Prue Vines: I witnessed this will," et cetera, et cetera. And that might take three to six months. It varies.for the executor, what happens is that when the court grants probate, the executor's right to act as an executor is then, related back to the date of death So we pretend that right from the moment of death the executive ha- the executor had that right.

Prue Vines: And what we do is make [00:29:00] correct everything the executor did up to that point. So that means that officially there is no ha- no gap there. Whereas in actual fact there was a sort of a gap until the testator did that. If somebody dies intestate, you will have to do a similar thing in writing, in, applying to the court for letters of administration and then those, that is the right to act as the administrator will be given by the court.

Prue Vines: It's a little bit more difficult because we don't necessarily know who the administrator will be until the court decides. 'Cause the administrator might be... There's a list, an order of people who become administrator from, partners, children, and so on. But, you know, if you, if it comes down to children, for example, there might be three possible children or five possible children.

Prue Vines: the court probably will decide on one or two of them to [00:30:00] actually be the administrator. If an estate is in, in debt, they might appoint a creditor to be the es- the administrator. So it's up to the court. The court can decide that. But the court normally won't interfere with an appointment by the testator of an executor.

Prue Vines: So that's why the executor has those earlier rights because the testator has named them. and that means that it makes sense for them to be able to do those things. So that naming by the testator is really important for giving the the executor the right to act. so that's the difference between the two things.

Prue Vines: Occasionally, somebody makes a will, and they don't name an executor. In that case, you also have to apply for letters of administrator, administration, and the administrator then is appointed and given a different kind of grant, which is called, a will with letters of administration annexed. 

When Probate Is Not Needed

Catherine Ashton: And is there circumstances [00:31:00] when, I know with our, friend when he died, I rang the probate office and asked whether we needed probate, and they said, "Well, we can't tell you that."

Catherine Ashton: I went, "Okay, well, that's not helpful." but what they did say to me at the time was it is dependent on what is required by all the suppliers and the different organizations that he had accounts with. Yes. So it sounds like there's no hard and fast rules there, Prue. 

Prue Vines: There are some ways of owning property, which means it's no one else's business what happens. So one of those ways is to own, for example, a house in joint tenancy. Because if you are joint tenants of a house, then there's an automatic system where if one of you dies, the other one inherits the whole property Don't need probate for that.

Prue Vines: That's just dead. All you need is a death certificate [00:32:00] and the whole thing rolls. and strictly speaking, bank joint accounts are supposed to be like that, but sometimes banks get sticky and won't allow the rollover of the joint account unless they have seen a grant of probate or letters of administration.

Prue Vines: Strictly speaking, I don't think they need that. But if you're the client of the bank, you have to do what the bank wants. So basically, and if, if an estate is very small, so for example, if somebody is really poor and they die with basically, you know, nothing in the bank, no ownership of any real property, maybe just some clothes and some jewelry, and there is somebody close who will just take it, then basically nobody will go near the probate office.

Prue Vines: They will informally just deal with that stuff. [00:33:00] And this has been something of a problem where there's poverty, partly because the poverty is quite variable. but we do have provisions in our system for properties, for estates that are worth less than twenty thousand dollars. So for example, you can, get probate much more cheaply.

Prue Vines: The public trustee, for example, may be able to do that, very cheaply, without even organizing for probate because they use the-- they are given a legislative ability to deal with it. and again, when, estates are worth, I think it's less than a hundred thousand dollars, there are some cheaper mechanisms that can be used to deal with to get probate and so on.

Prue Vines: So there are ways of making it, easier. and the other thing is what we sometimes see is people own a house in joint tenancy. [00:34:00] They own a joint bank account, and they have superannuation where from which they have a binding nomination of the death benefit. When that happens, the binding nomination of the death benefit, unless the testator has said, I give that to my executor," which means it's then been put into the estate, it's strictly speaking not part of the estate at all.

Prue Vines: So it is not a thing you need probate for. So it is possible in the current environment for people to have, just have their assets arranged in a situation where there is actually no need for probate.

Catherine Ashton: it's interesting 'cause in that example you've just given then, it clearly shows that you must do that audit process first because it's so dependent on how much money, who you're dealing with, what their policies are- I might get you just to explain a little bit that binding, nomination-

Catherine Ashton: when it comes to superannuation. 

Superannuation Binding Nominations

Catherine Ashton: I have a pub quiz, and that's the thing that [00:35:00] shocks people every time. Every year I have it as a question. And so if you can explain that, that would be great. 

Prue Vines: Okay. Well, when you have superannuation, in most cases you have, your superannuation includes a kind of life insurance, which, and under that superannuation usually you can mention the people that you would like to get that death benefit if you die.

Prue Vines: There are a range of ways in which you can make that nomination. So you can just do an ordinary nomination, which means I want this to go to my three children in equal shares. and if that nomination is not binding, then it doesn't really matter that you've done that. The trustees of the superannuation fund can decide what they're gonna do with that death benefit.

Prue Vines: But it's become more and more common in the last twenty years or so for people to have a binding nomination, including an enduring [00:36:00] binding nomination. So there's, binding nominations which last for three years and which you need to renew every three years, where you have to say, "This is a binding nomination, it will last for the next three years."

Prue Vines: That's written in the document, and then you just say who you are nominating. So I want my three children to have my death benefit. You can also do an enduring binding nomination. and some superannuation funds have this because it's really simpler than having people constantly lapsing binding nominations.

Prue Vines: you'd just do it once and then that will last, And if you die during that period, then that binding nomination will actually bind the trustees and they will have to, give effect to it, within the bounds of the law, which basically says you need to be giving it to a dependent of some kind.

Prue Vines: But as I said, if you do a binding nomination and you do not nominate your own estate or your executor, then [00:37:00] that superannuation binding, death benefit and all the stuff in the superannuation is regarded as an inter vivos transaction because you signed everything and you made the superannuation start happening while you were alive.

Prue Vines: So it's not regarded as a will even though it's a death benefit nomination that you are doing. So there's a lot of very intricate case law, establishing the difference here.so you can have this situation where you can nominate the executor to get it, in which case it's put into the estate, and it is part of the estate.

Prue Vines: But in most cases where people haven't done that, your superannuation is irrelevant to your estate, and your will doesn't cover it. 

Catherine Ashton: And in your experience, how many times have you seen that happen where people are unaware of that claim funds [00:38:00] in 

Prue Vines: superannuation? Oh, quite often. Quite often, yeah. Normally the trustees, as soon as they get a death, notice, will be trying to find the nominees.

Prue Vines: So they will, they will do the work of finding the people and saying, "You are entitled to," et cetera, et cetera. so people are often, I guess, a bit surprised to find that they're entitled to some part of superannuation. and what... And if, if people make wills the way I think they ought to be making them, they won't be surprised that they're going to be a beneficiary under a will.

Catherine Ashton: And that is something that you mentioned also that life insurance is generally forms part of that superannuation. Yes ... so it is something that, I know that I was guilty of it, that I didn't really pay much attention to what my superannuation fund was and I didn't really look at it, until- 

Catherine Ashton: I had to look at the fine print of the, total and permanent disability clause- Yeah ... in there. and that was- Yes ... very handy. Yes ... so yes, that's a good [00:39:00] recommendation for people to have a look at their superannuation policies. 

Prue Vines: Yeah, yeah. It's, you know, we are always up against this this, this natural human disinclination to think about death.

Prue Vines: but if you can bring yourself to do it, then you can have a far more streamlined process for your loved ones when you die. 

Culturally Appropriate Indigenous Wills

Catherine Ashton: In your experience, what are the considerations when it comes to making a culturally appropriate will for Indigenous Australians? 

Prue Vines: There are a number of culturally significant things. The first one, and the most important I think, is that under our, under our normal law of will, the word child, for example, how kinship is determined is determined under Western ideas of kinship, so that, I have three children, they are the child of my body.

Prue Vines: In many, Aboriginal communities, I would also think that my [00:40:00] sister's children were my children as well. So we- it's quite common to have the same-sex siblings' children be regarded as children. And what we need to think about here is the fact that kinship dictates obligation. We don't think about it very much in Western society 'cause we're used to how we do things.

Prue Vines: so we think, well, mothers are the major contact point for children. They are responsible for ensuring the children grow up okay and all of that, and we really put that quite strongly on mothers in terms of day-to-day activity. but in general Western society, an aunt is not expected to do that. An aunt is regarded as somebody who is separate from the children, who sees them occasionally, might give them the odd present, is not necessarily intimately and integrally attached to the child.

Prue Vines: So this means that if you are from a [00:41:00] Western family, you wouldn't expect a person to give the same amount of money or whatever in their will to their niece and nephew as to their child. But of course, if you're in an Aboriginal family and you think of your sister's children as your children, then they are owed the same responsibilities.

Prue Vines: The responsibility of mother covers these two people, not just one. Now, There's a whole lot of different ... As there are many different Aboriginal nations, there are also many, you know, quite a few different kinship ideas in Aboriginal communities. They are not all the same by any means, and so it is really important, when you're making a will for somebody, who's, who's indigenous, to work out exactly who they think has those responsibilities.

Prue Vines: So when they say my [00:42:00] children, to know whether they mean what Western society thinks of as my nieces and my children, or whether they only mean the child of their body. similarly in lots of Aboriginal communities, the term for husband or wife might be held by, different generations of people. So you might be able to see this one person has a husband in their generation and then they've got another husband in another generation.

Prue Vines: So how does that work? Well, there are a number of obligations that that person owes to husbands generally, including the one in the other generation. But normally the hu- the on- there's only ... The sleeping with obligation only applies to the husband in your generation. But it does mean that there are some other obligations to the other husband that need to be taken into account.

Prue Vines: So we can't have a set of rules that's for every Aboriginal person [00:43:00] because the kinship structures are different in various different groups. So we have to have something that allows the drafter of the will to say to the person Who is in your family? Can you draw it for me perhaps so that they can see and say, "And is this one the child of your body or is this the child of somebody else?

Prue Vines: You've got a sibling who's the same sex here. Are all your- do you all have the same responsibility to all of those children?" If a solicitor knows those kinds of things, they can make a culturally appropriate will. If they don't know it, they will make a fundamental error in terms of who should be bearing this responsibility, and that can cause terrible problems in that family.

Prue Vines: Okay, so that's the kinship issue. there are also some other things. one is that, Aboriginal people, some Aboriginal communities really don't like the name of the [00:44:00] deceased being used after death. Or their photograph or things like that. other communities don't have that rule.

Prue Vines: So knowing, the extent to which that name can be used is useful in relation to making a will. Actually having a provision in the will that directs people not to use the name or not to use the photograph or something like that will be helpful for everybody to be able to see that that's what should happen here and what's appropriate in this situation.

Prue Vines: So those are sort of some basic kind of ideas. The other thing, which is in many ways isn't, is a sort of a backup rather than necessarily always gonna be used in a will, is that in many Aboriginal communities, maybe all, many obligations are kept secret until a person is regarded as educated enough to know about them.

Prue Vines: So it's a bit like if you're [00:45:00] not, not an Aboriginal person and you're not familiar with this, it's a bit like as if you were in, year six at school, but you weren't told that high school existed because you weren't yet ready to know. and all the high school stuff was secret. And it's only when people say, "Well, you know enough about this," that they said, "All right, well now you're ready, ready to know that, you know, in a year's time or two years' time you will be expected to go to high school."

Prue Vines: The Western society that we have in Australia doesn't have secrecy attached to many things in the same way. So that's one form of secrecy. Sometimes, mostly those secrets are disclosed to the person who understands during life by people who, who know what it is that should be passed on and so on.

Prue Vines: But sometimes I have talked to Aboriginal people who've been [00:46:00] concerned that because of breakdown of certain patterns or, or relationships, that they might not be able to pass on something that should be passed on that is supposed to be kept secret, and that should be passed on into vivos during their life, but they're worried that it won't happen, and they want a backup, and they want to put it in their will.

Prue Vines: So now one of the problems we have here is that a will, once it's granted probate, is regarded as a public document. So it is not sensible to put in a will that secret because it'll become public. But, but there are a number of ways in which we can keep secrets in wills. One of them, the simplest one, is to say, "I have made a disposition to somebody on terms, that are kept in an envelope which is being held by the solicitor who drafted the will."

Prue Vines: Okay? So that's a fairly easy way to do it, and the solicitor [00:47:00] has instructions that when so-and-so comes along and says whatever they're supposed to say or whatever, they can hand it over. It's also possible to use what we call a secret trust or a half secret trust. So we do have ways in our wills of, giving a gift to somebody that looks as if it is going entirely to them, but which they have agreed will be given to somebody else.

Prue Vines: That's a, that's a fully secret trust. Now, people will tell you this was only for the purpose of men hiding their mistresses or their other family from their wives. and maybe that was part of the reason that we have these, but not always and not only for that. But it is a way of having a secret, having some ability to enforce because it is written, because that there is a secret is written in the will.

Prue Vines: Though it isn't [00:48:00] always. so that a court can say, can actually enforce it in a way to say, "You're the person who's supposed to be passing on this secret. Have you passed it on?" 

Catherine Ashton: Wow. 

Prue Vines: So those- That's fascinating ... things, yeah. So I, well, I think it's really fascinating.it does, it means careful drafting, using the secret trust or the half secret trust.

Prue Vines: I'm generally in favor of the half secret trust rather than the secret trust because I prefer for there to be a sign in the will that there is a secret because I think then you're more likely to get it passed on, than for there to be no sign at all. But it's entirely up to the testator, whether they want to do something like that.

Prue Vines: So it may be that there's some kind of customary law business that people, that somebody is supposed to do. They are very frail at the moment. They're a bit concerned they may not manage to do it. In that situation you might be able to keep the secret, you know, without disclosing it to the whole world [00:49:00] and have them feel that it's adequately protected.

Prue Vines: but as I say, that's, you know, because my, my knowledge, which is not massive of customary law, of course, is that secrecy can be very important. but that most of these secrets are supposed to be passed on during life. I see it very much as a backup system rather than, And a, and a system that probably wouldn't be needed if you were living an entirely traditional life.

Prue Vines: But that since Aboriginal people in Australia mostly live a mixed going backwards and forwards from country life, being middle class in the city, doing their customary law requirements on the weekend or on holidays and things like that, and maybe their neighbors have no idea about it.

Prue Vines: it just allows that extra possibility, if that is helpful. 

Burial Disputes And Country

Catherine Ashton: And also about burial rights, because [00:50:00] as you said that sometimes people do live in two different worlds and they may not live on country- 

Prue Vines: Yeah ... 

Catherine Ashton: all the time, and also given our history with colonization- they may not actually have that connection to country.

Catherine Ashton: Can you talk us a little bit about those, scenarios that you've seen unfold as well? 

Prue Vines: I think that, we have a lot of burial disputes that involve our indigenous people, and particularly our Aboriginal people. the reason I mentioned Aboriginal people because they do have a particular class of, concerns.

Prue Vines: They are certainly not all the same, but they are distinct from, say, Torres Strait Islanders, who have another set of cultural dispositions. so I, I don't want to be saying things that don't apply. in lots of cases these things do apply to both, but, but for this one, for Aboriginal people, having their body disposed of on country was clearly traditional.

Prue Vines: there were a whole different lot of ways in, in which [00:51:00] that was done. Various different groups did different things with the bodies of their deceased, relatives and loved ones. and now we have some complex situations mostly caused by dispossession. So Aboriginal people now, many Aboriginal people in Australia are not living on the country that is their country.

Prue Vines: They may well be living in a city, and many of them would prefer either themselves or, or their, their relatives would prefer that they were buried or, or whatever was done with their body however it was disposed of was done on country and in a particular way that was part of the customary law. so that the appropriate things were done in the dealings with this body.

Prue Vines: Aboriginal people have had reasonably low levels of will-making over time and that's quite reasonable. [00:52:00] When I was doing the research and going round Aboriginal communities to ask them what they were concerned about, about death, what would happen was I would hire a hall, and the people would come in for the meeting and there would be a period when the young men spent a lot of time pointing out to me what I already knew, which was that white fella law had done an awful lot of damage to, Aboriginal people.

Prue Vines: and that is of course absolutely true.But when they discovered that a will, and this was usually the women elders that I would be talking to by this stage, when they discovered that Appointing an executor meant you were appointing somebody who had the right to deal with your body and decide what was to happen to your body.

Prue Vines: Many of these women elders would say to me, "Could you make me a will now?" [00:53:00] So they had gone from white fella wills are nothing to do with me to this is one of the way, this is a way that I can actually stop having to worry about this. Because most of the communities had had a horrible burial dispute, and many of people in the community weren't speaking to each other or hadn't for several years or something like that.

Prue Vines: so the other problem is, of course, that,it can be difficult to find burial spaces that are on country where you're allowed to put people because we have law all a- across Australia that says people can be buried here, but they can't be buried there. we do have Aboriginal burial grounds in very, in some places, which have been traditional.

Prue Vines: Like some of them are thousands of years old. We know they've been there. We have other places where what was an Aboriginal burial ground has been taken over by non-Indigenous people. The, the burial [00:54:00] grounds in Sydney, the Aboriginal burial ground was under Town Hall in Sydney, and it was taken over by the colonists.

Prue Vines: we've got many things like that. So, and we also have places, some of the towns on the coast have become sort of diaspora towns for in, Aboriginal people. and I know of at least one town where their traditions now for dealing with, with burials is to smoke the body under these certain systems and to actually bring, bring a handful of earth from country and bury that with the person in that town.

Prue Vines: So, you know, people choose different ways to deal with these, these issues. 

Prue Vines: Given that Aboriginal people are only now beginning to recognize that a will can be helpful in this way, wills have-- making wills has become more common, is increasing, and the rate of will making is increasing. There's been a lot of work done about this [00:55:00] by law societies. Law firms have done lots of pro bono work in various communities, trying to increase this rate.

Prue Vines: So this has been-- there's been quite a drive to do this over, I would say, the last twenty years, and it is gradually bearing fruit. but it's important because it means that if somebody makes a will and they appoint somebody as their executor, and they have talked with their executor about where they wanna be buried, being buried on country or being buried with a handful of country in their grave or whatever other thing, then we're less likely to be having the kinds of horrible funeral disputes that we have often seen in court over the last twenty years

Prue Vines: I think that what's, I guess, most [00:56:00] noticeable about the burial disputes that I've looked at is that there is often a dispute between, say... Let's say a man dies, he dies intestate because he's relatively young and he doesn't...

Prue Vines: He's not thinking about death as a possibility for him. when he dies, he has a partner who wants him to be buried near where... She is not indigenous, and she wants him to be buried where she can visit the grave, which might be in the town they live in. His family and community wants him to be buried on country.

Prue Vines: These are common kinds of disputes. If that person had died making a will and had appointed someone as executor and told them what they wanted, there could be no dispute. The executor would decide. Now, whether this is a good way to go is an interesting question. [00:57:00] The extent to which a person who is Aboriginal should be able to decide for themselves whether they're buried traditionally on country or non-traditionally where their spouse will visit their grave, that's a question that Aboriginal communities are going to have to decide for themselves if it's not gonna be taken out of their hands by the way the law works.

Prue Vines: I think there are now, most of the people who are really concerned about being buried on country, meeting those requirements, they are the ones who are most interested in appointing executors. Sometimes they are putting the direction in their will. Now, directions about your burial in your will are just regarded as a wish.

Prue Vines: They don't confine the executor, and it's really important to know that, which is another reason why it is so important to know whether the executor is willing to do what you ask. So, you know, and it might... And this is another [00:58:00] reason why some people are trying to work out whether it is best for people to have a register of where, where they want to be buried or something like that, or to use the executor rule, or to use the adminis- to try and get the administrator rule to cover the field, or do what currently happens in these disputes when they go to court, where the judge looks at a whole bunch of factors, which include what did the testator, what things did the testators say?

Prue Vines: Unfortunately, often the testator said different things to different people, so it's not always helpful. what are the cultural issues here, and where would the culture say this person would be buried or have their body disposed of? Things and, other factors such as who would be appointed as administrator in this situation.

Prue Vines: the earlier rule [00:59:00] was the administrator would be the one who was given the power, more or less. The administrator would be treated like the executor, and so what they wanted would go. But that is a disappearing rule. We can see it fading. It is still sometimes there, but very often the court tries to look at the cultural factors and all the factors and eventually come to some kind of decision that all the factors seem to them to point to.

Prue Vines: It's a very difficult task. Being a judge, you can see when you read these judgments, the judges are taking it very, very seriously. They are trying to do their best to do the best possible thing for the community, the deceased, the deceased's close family, the deceased's relatives. It's all of the above, and they're often trying to do it relatively fast [01:00:00] because they want to be able to have funeral, disposition of the body and all of those things not pushed too far down the track in time, and so on.

Prue Vines: I would hate to be trying to decide that myself. It's really a horrible decision to have to make. and so the executor rule is very helpful at the moment, and it means that this puts the onus on the testator to make sure that the executor really is going to do what the testator wants 

Catherine Ashton: I love the fact that you mentioned , that the wishes, even if they're written in the will, 

Catherine Ashton: It is really dependent on the executor to follow through on those wishes. Yes. Thank you so much for- Very, very important. Thank you so much for mentioning that, Pru. 

End Of Life Planning Beyond Wills

Catherine Ashton: And, and what are the some of the other things, You know, we've talked on about the fact that the superannuation does not form part of the estate.

Catherine Ashton: We haven't even gone about [01:01:00] who has power of attorney and before death, because that is all before someone dies. Yes. And that is a, a whole different field as well, and just as complicated.

Prue Vines: Yes. Well, and incredibly important- Yeah ... because, 

Catherine Ashton: again, 

Prue Vines: when you're preparing to die, you might need to think about the fact that you might lose capacity before you die, and that therefore you do need to have an enduring power of attorney or enduring guardianship or ... Unfortunately, all the states have different names for these things.

Prue Vines: But, you know, the power to deal with you and how you live while you have, when you don't have capacity, and the power to deal with all your financial and legal issues when you don't have capacity. Whatever the name of it is, you need both of those things in place as well as a will when you're thinking about what you should do about your transition from a competent, totally functioning human being to one who may be a bit less competent and then [01:02:00] one who has died.

Catherine Ashton: And I think that that's a good point that you raised there in relation to, you know, we know that dementia has been now recognized as the number one killer moving forward of our population in Australia. 

Catherine Ashton: is the fact that we need to bring forward our consideration of end of life planning and having these documents in place.

Prue Vines: Yes. I think that's right. apart from anything else, you might get hit by a bus. 

Catherine Ashton: Mm. 

Prue Vines: We, we all have these delusions of immortality. And, the gap between life and death is pretty small. as a former psychologist who was also very interested in grief and how we handle death, I think that we should really talk about it a lot more often.

Prue Vines: So I'm glad you're doing these. I think it's really valuable. because it is part of life. It is something we all face, and if we ignore it, we're likely to create a total nightmare at the [01:03:00] end.

Catherine Ashton: I couldn't agree with you more, Prue. 

Prue Vines: 

Are Will Challenges Increasing

Prue Vines: In recent days, I've been contacted by a lot of journalists who want to talk about the increasing number of people who are challenging wills I do not believe that we have an increasing rate.

Prue Vines: I believe that we have a bigger population, and that means that we're having more people going to solicitors and dealing with this. But we actually have a very good rate of wills just going through normally. I don't like it that people keep being told that there's gonna be a dispute, and they get the impression that a will is really not worth doing because there'll always be a fight about it.

Prue Vines: The fact is, we're only talking about something like maybe 7% of deaths maybe, where there's any kind of dispute at all. [01:04:00] So the vast majority of these things do go through. the effort people put into thinking about it and getting, and planning it properly does work. So I am distressed by this kind of, sort of groundswell of opinion that, that this is a disaster.

Prue Vines: We've got this rolling disaster, and it's getting worse and worse all the time. given that we have such an increase in population in the last few years, it's like something ... In New South Wales alone, no, Australia, 500,000 more people in the last three or four years. Well, some of them are probably challenging wills.

Prue Vines: So, you know, I just don't wanna run away with the idea that making a will is really useless because there'll just be a fight anyway. I really don't think it is true in the vast majority of cases.[01:05:00] 

Catherine Ashton: I love the fact that you've put that in. I think that's a really valid point to make 

Catherine Ashton: 

Closing Thoughts And Thanks

Catherine Ashton: I can't thank you enough for coming and speaking with us today, and giving us insight into the unique considerations that we need to take in, when we're thinking about what is culturally appropriate for Aboriginal, people. and also what we need to consider ourselves when we're writing our own wills, and that role of the executor, and what it includes and what it doesn't include.

Prue Vines: Yes, it was a great pleasure.