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Worrall Moss Martin News

Issue 31,  May 2021

Coronial Deaths - Surviving Partner Denied Access to Deceased's Body  

A coronial investigation is an investigation into the cause of someone’s death.   Coronial investigations are conducted by the Coronial Division of the Magistrates Court of Tasmania, and usually take place where a death is sudden and unexpected, or where the death is not a result of natural causes.

Family members may be required to give evidence as part of the coronial investigation.   Advice and guidance, at an early stage, can help families to navigate what can be a difficult legal process, compounding an already devastating experience.    It is for this reason that it is critical to seek assistance, at the earliest opportunity, from a lawyer who is experienced with the coronial process.

A critical element is to ensure that the
senior next of kin is properly identified, and is able to exercise their rights, and fully participate in the coronial process.   Tasmanians familiar with the plight of Benjamin Jago may be aware of his fight for recognition of his and his partner Nathan Lunson’s relationship, after Nathan died by suicide in 2015.   Because Ben was not recognised as Nathan’s senior next of kin, he was excluded from participating in the coronial investigation into Nathan’s death, compounding his pain and loss.

Why is it important to identify the senior next of kin?   The senior next of kin of a deceased is the person with the priority to exercise certain legal rights afforded to them during the coronial investigation process.   These rights include:   
  • the right to object to an autopsy;
     
  • the right to object to an exhumation;
     
  • the right to be notified about the Coroner’s decision not to hold an inquest; and
     
  • the right to request that a Coroner not hold an inquest into a workplace death.
If a person is not recognised as a deceased’s senior next of kin, they cannot exercise these rights, and have limited opportunity to be involved in the investigation process.

Who is the senior next of kin?   Senior next of kin is defined in the Coroners Act 1995 (Tas), and is determined in the following order of priority:
  • the current spouse (including a person whom was in a significant relationship with the deceased in accordance with the Relationships Act 2003 (Tas)).
     
    • If the deceased was survived by more than one person who would qualify as the deceased person’s spouse – then the last person who would qualify is recognised.
       
    • If the last person who would qualify is not available, then the first spouse may be recognised, provided that they have the approval of the other spouse; or
       
  • a child of the deceased person, if the child has attained the age of 18 years; or
     
  • a person with whom the deceased person had a caring relationship, at the time of their death, which was the subject of a deed of relationship registered under Part 2 of the Relationships Act 2003 (Tas); or
     
  • a parent of the deceased person; or
     
  • a sibling of the deceased person if the sibling has attained the age of 18 years; or
     
  • an executor named in the Will of the deceased person or a person who, immediately before the death, was a personal representative of the deceased person; or
     
  • if the deceased person is an Aboriginal person, a person who, according to the customs and tradition of the community or group to which the person belongs, is an appropriate person.
A person who has priority of standing as the senior next of kin may delegate those responsibilities to another person, if they do not wish to be recognised as the senior next of kin (or do not wish to participate as the key contact person for the coronial investigation).

Unfortunately, in practice, there is often uncertainty around identifying the senior next of kin.   Two people may have equal standing – for example, both parents of the deceased, in which case it is important that there is clarity about who will be exercising the rights as senior next of kin.

Irrespective of the Coroner’s determination about who the senior next of kin is, that person does not automatically have legal rights or special standing in relation to any other legal proceedings, including matters relating to the deceased person’s Will, the administration of their estate, or funeral arrangements.


What if an incorrect person is recognised as the senior next of kin?   Sometimes, during the course of the investigation (or after the investigation is completed), it will become apparent that the person initially recognised is not the senior next of kin.

If a person becomes aware that another person is being identified as the deceased’s senior next of kin, and believes that they have priority over that person, they may apply to be recognised as the senior next of kin.   It is essential that immediate advice is sought, particularly in circumstances where time is of the essence.

The implications of a person not being able to exercise the rights as senior next of kin can be devastating.   In the matter mentioned earlier, after Nathan died, the Coronial Division failed to identify Ben as Nathan’s senior next of kin, despite their five-year relationship, and them owning a home together.   The decision was made on the basis that Ben and Nathan had not taken steps to
register their same sex relationship with the Tasmanian Government, notwithstanding that other key features of their relationship indicated that Ben was indeed Nathan’s senior next of kin.

As a result, Ben was refused access to Nathan’s body.   Although permission was subsequently granted by Nathan’s mother, the Coronial Division released Nathan’s body (without notifying Ben), denying Ben the opportunity to say his final farewell.   Ben was also initially barred from attending Nathan’s funeral, and despite numerous attempts, was unsuccessful in obtaining Nathan’s cause of death report from the Coronial Division.

Ben later sought legal representation, and a year after Nathan’s death, he received a letter from the Coronial Division acknowledging that he and Nathan were in a
significant relationship at the time of Nathan’s death which, had that determination been made during the coronial investigation, would have ensured Ben was able to exercise his rights as Nathan’s senior next of kin.   Nevertheless, Ben has been unsuccessful in seeking redress from the Tasmanian justice system (first through the Anti-Discrimination Tribunal, and subsequently the Supreme Court of Tasmania) for the damage caused to him by the premature determination that he was not Nathan’s senior next of kin.

Who is an
interested person?   An interested person may be a family member or friend of the deceased.   Although the senior next of kin is considered to be the primary contact, correspondence may be provided to an interested person who requests information from the Coronial Division.   In order to be recognised as an interested person, that person must take appropriate steps to register with the Coronial Division.

An interested person is not able to exercise the rights of a senior next of kin, but acting to register an interest in the proceedings ensures that a person will be notified of any important actions taken in relation to the investigation.

Will there be an autopsy?   An autopsy – a post mortem examination completed by a pathologist or a specialist medical practitioner – may be completed at the request of the Coroner.   The person conducting the autopsy provides a report to the Coroner about the nature and results of the investigation, and provides an opinion on the cause of death.

As a senior next of kin is entitled to object to an autopsy being performed, and if this is their wish, it is essential to seek immediate advice in order to exercise that right at the earliest opportunity.

Inquests and Public Findings:   An inquest is a public hearing of a coronial investigation, in which there is a detailed inquiry into the death of a person.   Not all deaths which are subject to investigation by the Coroner ultimately result in an inquest being conducted.

There are some circumstances where a Coroner is obliged to hold an inquest, for example, if the Coroner suspects homicide, or the death was not due to natural causes and was somehow linked to the deceased’s employment.   A person with sufficient interest in the death may also request that an inquest be held.

Where an inquest has been held, the Coroner’s findings will be published on the Magistrates Court of Tasmania website, unless the Coroner makes an order that the inquest not be published.

How long will the coronial investigation process take?   The time it will take the Coroner to complete an investigation varies considerably.   Where the death was due to natural causes, and where no inquest is required, the Coroner may issue a determination within a short period of time.

For matters involving more complex deaths, including death by suicide, a more detailed investigation will be completed by the Coroner.   The Coroner may wish to obtain affidavit material from acquaintances of the deceased, and may require medical, legal or financial records to be produced to assist with the investigation.  Where this arises, seeking legal assistance can ensure that all relevant material is put before the Coroner to enable them to make their decision, so that the process can be completed as promptly as possible.

What happens after a coronial investigation?   In many instances, the outcome of the coronial investigation process is a determination about the cause and circumstances of the deceased’s death.   The Coroner may make recommendations in any matter, including matters of public health or safety, and the administration of justice.

For example, if a determination indicates the commission of a crime caused or contributed to a deceased’s death, the Coroner may make recommendations in their decision to the Attorney-General, which could result in criminal proceedings being brought against the allegedly responsible person/s.
  
How can we help?    Worrall Moss Martin Lawyers has specialist skills and experience in estate administration and estate litigation, including deaths subject to coronial investigation or inquest.   If you need assistance after a person has died, please contact our estate administration and dispute lawyers, Kate Moss, Robert Meredith, Eve Hickey or Megan Bird.
Just when you thought the superannuation contributions scheme couldn't become any more complicated...
In 2017, the complexity in navigating the Australian superannuation landscape increased dramatically, and is about to do so again.

Recap:   Disheartened (perhaps) by the criticism levied in 2015 by the Grattan Institute, who described the superannuation system as being dominated by “tax breaks … for … rich”, the then federal government tightened limits on contributions, and introduced new superannuation contribution caps, decreasing the opportunities to use the superannuation system as a tax-free (or tax-advantageous) wealth accrual mechanism in the guise of retirement planning.

From 1 July 2017, a $1.6M transfer balance cap (TBC) was introduced.   The TBC system was described by commentators as “mind numbingly complex”.   The TBC limited the total amount that self-funded retirees could use to start a ‘retirement phase income stream’, and was designed to reinforce the role of superannuation as being for the provision of retirement income, and not as a tax advantageous place to store intergenerational wealth.

The 2017 reforms also substantially reduced the amounts of periodic before and after-tax contributions that a person could make to their superannuation.   The limit on ‘concessional’ (from pre-tax earnings, for example by way of a salary sacrifice) contributions dropped from $30,000.00 (or $35,000.00 for persons 50 years and older) to $25,000.00.  But the biggest reduction was to the cap on ‘non-concessional’ (after-tax) contributions.   Previously limited to $180,000.00 per year (or $540,000.00 over a rolling three-year period), non-concessional contributions were capped at $100,000.00 per year (or $300,000.00 over three years), and became subject to the TBC.

Exceeding the new and/or improved superannuation caps could result in a roll back of amounts in ‘pension phase’ to ‘accumulation phase’ superannuation, or force the withdrawal of amounts from the superannuation system, with a risk of tax penalties.

In our view, the initial assessment of the superannuation changes as “mind-numbingly complex” was reasonably correct.

The Future Plans:   Although set at a flat rate of $1.6M, the legislation introducing the 2017 superannuation reforms provided for the TBC to be indexed by reference to the consumer price index, in increments of $100,000.00.   As a result of the CPI increases over the past four years, from 1 July 2021 the TBC will increase to $1.7M.

Although the concessional contributions cap is also indexed (with planned incremental increases of $2,500.00), the indexation provisions are tied to increases in the average weekly ordinary times earnings (AWOTE) rather than CPI.   As yet, there have not been sufficient increases in the AWOTE to attract an increase of the concessional contributions cap.  

The Update:   Happily for everyone involved, as a result of the indexed increase to the TBC, it is being said that, “superannuation is going to get more complex from 1 July.

There will not be an “across the board” increase to each person’s TBC.   In practice, each superannuation contributor will have a personal TBC between $1.6M and $1.7M, depending on how their superannuation has been treated prior to 1 July 2021.

If, come 1 July 2021, a person has not received superannuation payments by way of an ‘income stream’, or pension (including payment of another person’s superannuation death benefit by way of an income stream, rather than as a lump sum), then that person will be entitled to the full $1.7M TBC.

Where a person does not meet the above requirements (and in most instances this will be because all or part of their superannuation is in ‘pension phase’), calculating that person’s new personal TBC becomes… complicated.

When a person (let’s call him Trevor) commences a pension for the first time, a transfer balance account is created to track their progress against their TBC.   The transfer balance account operates on a system of credits (being the amounts transferred into a retirement pension) and debits (being the amounts withdrawn from pension phase if the pension is stopped).

If Trevor’s transfer balance account ever equalled (or exceeded) $1.6M between 1 July 2017 and 30 June 2021, then Trevor’s TBC will remain unchanged at $1.6M.   Trevor is not entitled to claim any of the indexed increase.

If Trevor had commenced a pension, but had not utilised the full $1.6M in his transfer balance account prior to 30 June 2021, Trevor can now proportionally index his TBC, based on the highest ever balance of their transfer balance account.   The proportional indexation is based on the percentage of the TBC that has been ‘unused’.

For example, if at 30 June 2021 Trevor’s transfer balance account balance is at $800,000.00 (and that is its highest ever balance), then Trevor has an “unused” TBC of $800,000.00, or 50% of the $1.6M cap.   Trevor is entitled to a proportionate TBC indexation of 50% of the $100,000.00 increase, being $50,000.00.   Accordingly, Trevor’s TBC is proportionally indexed to $1.65M.

If the current transfer balance account is not its highest ever value (for example, where a pension has been wholly or partly ‘commuted’ – returned to ‘accumulation phase’), then there is a significant potential for errors in calculation in preparing to take advantage of the indexed TBC.

 
How Can We Help?   For people who have commenced (or inherited) an income stream from superannuation, it is vital that their transfer balance account and TBC are properly reviewed before any decisions are made about increasing or commuting their pensions.   Failure to accurately ascertain the proportionate indexation of the TBC may lead to excess transfers of superannuation into retirement phase, and a subsequent tax liability.

Worrall Moss Martin Lawyers has specialist skills and experience in assisting you to navigate superannuation, including both public funds and self-managed superannuation, in light of the complex 2021 changes.   Please contact our estate planning lawyers, Kimberley Martin, Casey Goodman or Ashleigh Furminger, who can help you to develop a strategy to maximise your retirement savings.
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