As a lawyer, do you feel like you would like to be “plain” chocolate or vanilla ice-cream, focusing or specialising in one area of law or do you feel you need to be diverse and multidimensional with your legal knowledge base and career, akin to the ranges of flavour in choc & vanilla ripple or lime and coconut or raspberry swirl ice-cream? You may “specialise” in one area of law, for example, succession or family law, but does that mean you only need to know the Succession Act 2006 (NSW) (“SA“) and/or the Family Law Act 1975 (Cth) (“FLA“)? Even if you specialise in one area of law, does that preclude the necessity for even basic knowledge in other areas of law? Of course, we can’t know all areas of law thoroughly, its just not practical, however, is it good “lawyering” to have knowledge in a variety of areas of law or extensive knowledge in one and be considered a “specialist“?
I have come from a diverse life and employment background and understand the advantages of possessing a wide variety of knowledge, gained through life and employment experiences outside of law, and how such diverse knowledge and experience adds real value to the practice of law i.e. employed in medicine for 15 years prior to law has given me deep knowledge and experience in medicine, which assists me greatly in PI and Med Neg cases. Now working in law, is diversity the key or specialisation, or do both have their advantages and disadvantages?
Lets consider the question posed above; What do intestacy, surrogacy and divorce have in common? If you are a family lawyer do you know the answer? If you are a succession lawyer is that a ‘no brainer‘ and you’ve got it? Lets take a closer look….
Surrogacy pursuant to the FLA is complex and an evolving area of law, with some “interesting outcomes” as a result of the current laws in the FLA. However, what are the rights of a child born as a result of a surrogacy arrangement in relation to intestacy of the legal “parents“?
s109A SA provides that a child who was born as a result of a surrogacy arrangement and for whom a “parentage order” has been made pursuant to the meaning found in the Surrogacy Act 2010 (NSW) are regarded for the purposes of intestacy as a child of the parents named in the parentage order. The biological family relationships, which are not consistent with the relationship created by parentage orders are to be ignored. Therefore, the child born through surrogacy arrangements may inherit from the parents named in the parentage order. Are clients advised of the importance of seeking parentage orders under the SA (if altruistic surrogacy occurred) and “will and/or intestacy” implications? To do so, knowledge is required of both areas of law.
s13 SA provides for the effects of a divorce on a will, which states that subject to any contrary intention in the will, the divorce revokes in the existing will:
- a disposition to the testator’s former spouse s13(1)(a)
- an appointment of the former spouse as executor, trustee, advisory trustee or guardian except as provided by s13(3)(a) and
- any grant of a power or appointment exercisable by, or in favour of, the former spouse, except as provided by s 13(3)(b)
Upon divorce under s 13 SA the will takes effect as if the former spouse predeceased the testator s13(4) which means the divorce does not revoke the whole will but only that part of the will that operates in favour of the former spouse, which may result in partial or full intestacy. When applying for administration of an intestate who had been divorced, proof of that divorce will be required by the Supreme Court, which can be obtained from the Family Court of Australia and annexed. This raises the question: what about parties who do not formalise the divorce and informally divide up their property and continue on their lives separately? This allows the ex to make a claim on the will or intestate estate. Are you able to advise your clients about the ramifications of divorce (or lack of) on the operation of a will under the SA? Are you able to advise your client as to when a divorce takes effect under the FLA?
In my opinion, diversity of legal knowledge is imperative in the practice of law to advise and run matters effectively, whether we ‘specialise’ or are “generalists”. For example, if I run a family law matter, I may be required to know about property law, trusts/equity, succession law and state laws surrounding parentage to name a few. If I run a succession case, I need to know about the FLA, SA, Status of Children Act 2010 (NSW), Forfeiture Act 1996, Property Relationships Act 1999 and more. If I am involved in a common law case, I would need to have an understanding of the Civil Liability Act 2002, Limitations Act 1999 and more, including cases. Therefore, we may specialise in one area of law exclusively, however, to be a lawyer that represents and advises proficiently, we are obliged to have at least a basic understanding of other areas of law that impact upon our “specialisation“. “Specialisation” requires diversity as does representing clients in a wide variety of legal areas, if we desire to advise and run matters efficiently and professionally.
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