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遗嘱与遗产规划

韩国流行歌星具荷拉遗产争夺战提醒人们有效遗嘱的重要性

熟悉韩国流行音乐新闻的人一定听说过韩国女团Kara的前成员,歌手具荷拉去世的消息。在具荷拉去世后,随着她的母亲根据韩国继承法提出分割遗产的主张,她悲伤童年经历逐渐被大众知晓。   据报道,在具荷拉八岁时,她的母亲抛弃了她和她的哥哥,自那之后从未照顾或联系过他们。具荷拉的母亲后在2006年放弃了对具荷拉和她哥哥的有关的法定监护权。具荷拉后来由哥哥和祖父母照顾,而她的父亲大部分时间都在建筑工地工作,为孩子们提供财力支持。   具荷拉去世时年仅 28岁,没有配偶或孩子。根据韩国继承法,如果逝者没有有效的遗嘱,那么逝者的遗产将按以下顺序分割: 1. 子女(或孙子女) 2. 父母(或祖父母) 3. 兄弟姊妹 4. 有第4级血缘关系的亲属   如果有多个亲属属于以上同一级别,那么他们就平等地分割遗产。   自从具荷拉去世后,她的父亲将分给他的具荷拉遗产份额交给了具荷拉的哥哥,他说他总是因长期在外工作感到内疚,没有为孩子们提供情感上的支持,孩子们在他不在的时候相互依赖。   目前,具荷拉的母亲已经指定了一名律师,并根据韩国继承法提起诉讼,要求作为母亲获得她一半的遗产份额。具荷拉哥哥表示,他对给妹妹的生活带来如此多痛苦的人现在将从她的死亡中受益感到难过,并发誓要保护妹妹的遗产。   有人可能会认为,如果韩国司法系统允许具荷拉的母亲分享她遗产,那么法律就导致了一个不公正的结果。但根据韩国现行继承法的规定,除非韩国继承法对“母亲”的定义有不同的方式,将在逝者生前未履行母亲职责的母亲排除在外,否则法院必须将具荷拉遗产的一半份额判给她的母亲。   相似地,在新南威尔士州,当一个人在没有有效遗嘱的情况下去世时,《新南威尔士州继承法2006》(Succession Act 2006 (NSW),下称‘《继承法》’)将决定逝者的遗产如何分配。在新南威尔士州,遗产通常会先分配给逝者尚在世的配偶,如果没有尚在世的配偶,则按以下顺序分割: 1. 子女 2. 父母 3. 兄弟姊妹 4. 祖父母 5. 姑姑、姨母、叔叔、伯伯 6. 堂/表兄弟姊妹   法律在分配遗产时不考虑逝者与家人的个人关系;法庭唯一会考虑的是可能的继承人与逝者在法律上的关系。   在新南威尔士州有很多类似的案例。以近期发生的一起案件为例,为了确保孩子的安全,法庭向一名有虐待和家庭暴力史的父亲发出了限制令(Apprehensive Violence Order, 下称“AVO”),以阻止他接近年幼的儿子。在法院发布AVO后不久,孩子的母亲就与这位父亲离婚,搬到了悉尼。孩子快三十岁的时候,经过努力工作,他已经积累了自己的财富。他与母亲保持着密切的关系,但与父亲没有任何形式的关系。他的父亲从来没有联系过家人,他们过着不同的生活。   后来,这个20多岁的孩子不幸突然死于一场事故。他去世时还没有结婚,也没有孩子。这个孩子从来没有想过要做好遗产规划,因此在他去世时没有有效的遗嘱。这位母亲为了最终确定她儿子的遗产,向法院提交了文件,成为其儿子遗产的管理人和唯一受益人。法院告知这位母亲,如果一个人在没有遗嘱的情况下去世,那么法律将决定谁是遗产的受益人。根据《继承法》,由于逝者没有配偶或子女在世,接受逝者遗产的是逝者的父母。因此,父亲和母亲必须平分已故儿子的遗产。   这位母亲感到悲痛的是,这位虐待儿子的父亲,在她儿子的一生中没有参与抚养他,对于她的儿子来说几乎是个陌生人,但现在将从她儿子的死亡中受益。然而,法律在这件事上是明确的,无遗嘱者的遗产分配必须依法进行,法律规定,如果一个人去世时没有任何配偶或子女在世,那么逝者的父母就是下一个分享遗产的人。《继承法》不探究父母与子女之间的个人关系,其本人是孩子的父母这一事实即是唯一需要的资格。   每个家庭都有不同的故事和不同的关系,这对每个家庭来说都是独一无二的。不过,法律在分配没有有效遗嘱的逝者的遗产时,并不考虑这些因素。一个人能够确定和控制去世后发生的事情的唯一方法就是制定一份有效的遗嘱。   人们会同意并认识到制定有效遗嘱的重要性,但对大多数人来说,这很容易被推到他们的“待办事项”清单的底部。然而,由于我们目前正经历着一段不确定的时期,在这次新冠病毒大流行期间,我们有更多的空闲时间,也许是时候考虑一下遗产规划,以避免给家人带来不确定性和心痛。  


遗嘱与遗产规划

Conditions of inheritance

Q: Recently, my mother passed away. Her will stated that, in addition to part of the mother's deposit, the house she owned would be handed over to me, but the condition of the inheritance was that I would "be baptised and become a Christian." During her life, my mother was a devout Christian, but I am not interested in any religion, and therefore become embarrassed. Are these bequest conditions legally binding? A: In short, it is likely that such conditions of inheritance will be legally acceptable. In particular, if the will specify how the inheritance will be treated in case that you do not satisfy the conditions, it will be more likely that such conditions are legally binding. Therefore, you need to examine your mother's will in detail. In principle, "freedom of will" is recognised in Australia so that a testator can freely decide who and how its estate will be inherited. Generally, if the conditions of an inheritance are 1) clear, 2) achievable, and 3) not contrary to public policy, the condition of the inheritance is considered valid. There is a case held in 2014 before the NSW Supreme Court in 2014, Carolyn Margaret Hicken v Robyn Patricia Carroll & Ors (No2), where the court discussed the validity of a condition that a heir needs to be baptized by the Catholic Church within three months of the death of his father.  The heir of course claimed that the above conditions were invalid. In particular, he argued that the condition was "inconsistent with public policy" because "it is religious discrimination, which creates discord within the family, and also infringes universal human rights and freedom concepts." In response, the court ruled that "the condition does not force the heir change its religion, and they are not contrary to public policy." In other words, the heir had the choice of converting and receiving an inheritance or keeping their own religion. In addition, it was held that the condition was clear and achievable. One of the major factors that led to such a decision was that the will specified how to inherit if the heir fails to meet the condition. In the current matter, it will be determined that the mother's inheritance conditions do not oblige her child to be converted. However, even if she or he is unable to fulfil the conditions, and thereby the estate is to be inherited to others, it does not mean that the child cannot inherit anything. According to the Family Provision regime stipulated in the Succession Act 2006 (NSW), regardless of the content of the will, children of the deceased can claim inheritance rights for a part of heritage. Further details about the inheritance claim on Family Provision will be explained in the later article.  


遗嘱与遗产规划

Executor's power / Funeral and burial method

Q: Recently, my father passed away. My father's old friend is acting as an executor based on the will. Yesterday, I had a quarrel in relation to what to do with my father's grave. I told him that my father mentioned about a cremation before, but he insisted that it would be best to bury him near the divorced mother's graveyard. The will is silent about funeral and burial method. In this case, do I have any legal right to do? A: In general, the will of the deceased specifies the deceased's funeral and burial methods or requires the bereaved family to determine such methods. However, in rare cases, there are some situations where the bereaved families fail to reach an agreement and result in disputes. If a will exists, the executor, in principle, has the right to decide on funeral and burial. It may seem surprising that the method of burial cannot be determined by words of the deceased, even if the deceased had written instructions in the will. The NSW Supreme Court set out the principles of funeral and burial in the case of the Smith v Tamworth City Council held in 1997. Some of key principles are summarized below. If the executor is designated in the will, the executor has the authority to manage the deceased's funeral and burial. The executor has no legal obligation to follow the instructions given in the will regarding the funeral and burial of the deceased. In the absence of a will, a person in the highest inheritance rank in accordance with the will has the same authority as the executor. If two or more persons have the same authority, the decision will be made in consideration of who can carry out the burial without delay. Anyone who has the authority to manage the burial is expected to consult with other stakeholders (e.g. surviving families and relatives), but has no legal obligation to do so. Either way, it is best to have a funeral that everyone can be convinced. Even if many people may be reluctant to think about life after death, and even if it is not legally binding, it is necessary to convey your wishes to others around you, and to clearly write them in your wills as well.  


遗嘱与遗产规划

Wills and Family Provision

Q: I have three children, and I am going to write a will that leaves my second son with no heritage. However, I heard that there is a Family Provision regime in Australia, similar to the Japanese mortgage system, and it may not be possible to remove the inheritance of a child no matter how the will is drafted. How can I avoid these possibilities?   A: The Family Provision states that "even if the will does not specify the right to inheritance, the deceased’s children and dependents have the right to inherit part of the estate." However, unlike Japanese mortgage system, there is no clear distribution ratio, so it is necessary to determine what distribution is appropriate based on individual situations. In this regard, if the agreement is not reached at the consultation stage, the case would be brought before the court. In determining the Family Provision, the court takes into account various factors such as individual circumstances and common sense. Most of all, the Family Provision claim is likely to be accepted if the distribution of heritage described in the will is determined to be fair and equitable. In this regard, the reason why you do not want to inherit any heritage to the second son will be important. For instance, if you have reasons such as "I gave my second son a lot of money for my business," "I gave you a down payment to buy a house," etc., the right to request the Family Provision of the second son is thought to be weaker. If there is such a reason, it is recommended that the reason be stated in a will or a separate sheet, and that it be preserved securely. In addition, the lower the total estates, the less likely the court will be to recognize Family Provision claims. On the other hand, it is also possible to give the property to other children prematurely. However, it should be noted that non-cash gifts may give rise to a tax issue (including stamp duty). Also, when deciding how to distribute the Family Provision, pre-natal gifts may be taken into account. Life insurance at the time of death is not a legacy and will be passed on to the designated recipient separately from the inheritance process. Also, for the superannuation, if you specify the recipient, the designated person can receive it without becoming part of the heritage. You can take advantage of these, but as with prenatal gifts, they can also be factored into the Family Provision distribution. Ultimately, it is at lease impossible to completely remove heirs who have Family Provision rights without an objectively just and fair reasons.  


遗嘱与遗产规划

Spouse passing away whilst separated – Inheritance and family provision

Q: I separated from my husband of 25 years. Between my husband and myself, we have a son, now an adult, who is currently working. My husband and I thought it would be a temporary separation and did not divide our assets. The apartment I currently live in and an apartment that is a investment property in Tokyo is under my husband’s name. My husband passed away last week. He did not leave a will. When my ex-husband passed away, he was living with his girlfriend who has a child. In this case, what happens to the distribution of marital assets and the right to inheritance?   A: If the deceased and his new girl are legally recognised as De factor Partners, the girlfriend has the right to inherit to deceased’s estate. According to the laws of NSW, if they have been living like a couple for more than two years, the relationship will be legally recognised as a De facto relationship. A person who claims the question of ‘have they lived together like a couple’ that has the duty to prove it. For example, each person has a dwelling, and if they only spend 2,3 days together, they cannot be considered to be a marriage relationship. In this case, assuming the girlfriend was in a marital relationship with the deceased, even if the cohabitation period was short, she has a right to inherit half of the deceased’s estate as mentioned under the Succession Act. The remaining inheritance will go to you. And subsequently in this case, your son does not have any inheritance rights. You may feel that it is unfair that the girlfriend has a right to half the deceased’s estate when she has only lived with the deceased for a period of up to 3 years compared to your 25 years of marriage. If you disapprove of this result, you claim a right under the Family Provision.  Family Provision refers to the right of succession of the deceased’s dependent family, not only the spouse but individuals that had a marriage-like relationship and those who have no kinship with the deceased (Dependent). This right cannot be revoked by a will. Therefore, your son can also claim this right. Additionally, if the step-child is dependent on the deceased, this right can be asserted. If the parties do not agree on the asset distribution, the court will ultimately decide to whom and to what extent the Family Provision will be granted by taking into account all relevant circumstances.  Subsequently, you do not have the right to distribute marital assets as the procedure of distribution was not completed before the deceased’s passing. Japanese laws apply to the inheritance of apartments that are in the name of the deceased in Japan. From what I understand, as Japan is family-oriented, no inheritance rights are available to those who are not family members and those who are not recognised. Therefore, under Japanese law, with regards to property in Japan, you and your son have 50% inheritance rights.


遗嘱与遗产规划

Remarriage of father and inheritance

Q: I have a father that will be turning 60 years old this year. My mother passed away 10 years ago. My father recently became close with a woman living in our neighbourhood and yesterday he asked me “I am thinking of remarrying to this woman, what do you think?”. With regards to my father remarrying, how would this effect inheritance? A: As inheritance laws vary in each state, this column will focus on NSW inheritance laws.Generally, when you marry or remarry, the will that your father previously had is invalid. In other words, once your father remarries, and a new will is not drafted and he passes away, inheritance of any estate will be determined under inheritance laws. In this case, the person he remarries to is entitled to more than half of the estate. However, even if the father refuses to marry this woman, if the two had been in an ‘internal relationship’ for a period of more than two years or the relationship was registered with the Relationship Register, even though they are no married, she has a right to inherit as a spouse. If the father for example states in the will “I leave 100% of my estate to my daughter”, if the internal relationship is accepted as stated above, the woman reserves a right to claim some of the inheritance under the Family Provision (similar to Japanese inheritance law). In other words, depending on the will, the deceased may not be able to freely distribute the inheritance. Furthermore, if the father marries the woman or a close relationship is established, you cannot avoid the consequences of the inheritance.   If a child is born between your father and the woman, your inheritance success rate will be even lower. For your information, if the woman has a child that has no blood relation with the father, lives with your father and is dependent on the family then the child also considered to be applicable under the Family Provision to claim inheritance. Additionally, when your father passes away, anyone that has a “Close Personal Relationship” with him, has a claim under the Family Provision. However, it is ultimately up to the court to decide whether or not the claim is to be granted and to what extent.  Another important note is that after your father has married the woman, and for example ends up with a condition such as dementia, loses his ability to judge or ends up in an accident (unless a Power of Attorney has been prepared), any medical decisions made by the remarried partner will take precedence over the children. In order to avoid any disputes, why not advise your father to create a power of attorney?