26/08/2009

Since the death of Michael Jackson, there has been much public speculation as to how the estate will be distributed, who will be appointed guardian of the children and where Michael will be buried, to name just a few of the topics.  Here, we discuss each of those points from the NSW legal perspective.

 

The Scene

 

Michael was survived by his three children, Prince Michael Junior, Paris Michael Katherine and Prince Michael II.  Having divorced wives Lisa Marie Presley and Debbie Rowe, he was not married nor believed to be in a relationship at the time of his death. 

 

Michael’s Will provided that all assets were to be left to the trustees of the Michael Jackson Family Trust.  The terms of this trust have not been published but it is understood his children, his mother Katherine and a number of charities are beneficiaries.

 

Michael’s children were all under 18 years at the time of his death.  In his Will, Michael appointed his mother as their guardian, with friend Diana Ross as a backup.

 

What would happen in New South Wales?

 

Let’s assume Michael hailed from NSW and that all of his assets, including the famous “Neverland”, were in NSW.

 

The Estate

 

The distribution of Michael’s assets would firstly depend on whether his Will was valid.  If invalid, or only partly valid, his assets would have to be distributed as per the NSW intestacy legislation.  Given Michael was not married or in a de facto relationship when he died, his assets would be divided equally between his children.

 

Even if a valid Will exists, certain “eligible persons” would be entitled to seek an order for a share of his assets if they are not adequately provided for under the Will or the intestacy legislation. This is called a “family provision order”.

 

The following people are entitled to seek an order:

 

-       Current spouses (including de facto spouses)

-       Former spouses

-       Children

-       A person who was financially dependant on Michael  and also either a grandchild or a member of the household;

-       A person who lived in a close personal relationship with Michael

 

A close personal relationship exists where two adults live together, with one adult providing unpaid domestic support and personal care to the other. Paid staff (trainers, doctors) living with Michael cannot make a family provision claim within this category.

 

Debbie and Lisa Marie, as former wives could make a claim.  However, in assessing the claim, the Court may look into factors such as (amongst others) Michael’s intentions in the Will (he specifically did not provide for Debbie), their contribution to the estate and their conduct in determining whether an order is appropriate.

 

Michael’s parents and siblings are not eligible unless they were either financially dependant on Michael and living with him.  We understand this is not the case.

 

The Children’s Guardian 

 

A person can nominate a guardian for his or her minor children in a Will, however the nomination is not binding.  The Court can ignore the nomination and appoint an alternate guardian. Still, it is important a Willmaker sets out their wishes and discusses them with the proposed guardian and their executor/s.

 

Burial at Neverland

 

Under the Public Health (Disposal of Bodies) Regulations, a person cannot be buried on private land in NSW unless the land is 5 hectares or more in size and the burial is approved by the local council.  Also a person cannot be cremated in NSW if that person has given a written direction against cremation or written direction to dispose of their body by other means (eg burial).    

 

Clearly, having a valid well-drafted Will in place is the key to giving effect to a person’s wishes and to minimising any potential issues after death.  Even if a family provision claim is made in respect of the Will, the fact that the Willmaker had recorded the reasons behind excluding somebody will be considered by a Court when assessing the claim.  

If you have any questions or would like further advice regarding Wills or Estate Planning, please contact TOWNSENDS BUSINESS & CORPORATE LAWYERS on (02) 8296 6222.