FAMILY LAW – STILL OPEN FOR BUSINESS

FAMILY LAW – STILL OPEN FOR BUSINESS
August 6, 2020 /

The Family law Courts have again announced plans to provide continuity of service to families during lockdown.

It’s reassuring to know that whatever happens, the use of technology means parents and separating couples can still access a Court if they need.

If you’re not sure whether you need to go to Court, talk to one of our experienced family lawyers on 5576 9999.

We did it again!

We did it again!
July 30, 2020 /

The 2020 listing of “Leading QLD Wills & Estates Litigation Law Firms” is out and Robbins Watson Solicitors landed in the recommended list once again along with our consultant Accredited Specialist Succession Lawyer Christine Smyth as one of the “Leading QLD Wills & Estates Litigation Lawyers” of 2020.

Doyle’s Guide is an independent and highly respected international ratings agency which exclusively focusses on identifying the best in class Lawyers and  Law Firms across the range of practice areas, in Australia and in 5 other countries whose legal systems are founded on the English system of common law. 

Achieving Doyle’s guide listing is very difficult to do – and this is our 5th straight year of Doyles’ guide recognition.

Our lawyers are experts in Estate law and it shows – in the quality of representation and the quality of outcomes.  Equally importantly, however, is the fact that our team are responsive and genuinely care about our clients and the issues they face.   Our clients never have to face these difficult legal challenges alone.

Whether you are an executor trying to complete his or her obligations under a will, and wish to ensure that your actions are not subject to legal challenge, or if you are a person who is concerned that merely following the terms of the existing will lead to injustice, we have the experience and knowledge to help. Contact us today.

Associate appointed

Associate appointed
July 17, 2020 /

We are delighted to announce the appointment of Sarah Galvin as an Associate of the firm.

Sarah’s appointment is in recognition of her dedication and committment to her clients and fearless advocacy on their behalf.  These qualities are the hallmarks of great lawyers and we are proud to have Sarah as a key member of our professional team.

Congratulations Sarah!

Succession law legislation update

Succession law legislation update
July 14, 2020 /

Here is a summary of COVID-related legislation permitting audio-visual witnessing of wills and enduring documents across Australia:

Queensland

COVID-19 Emergency Response—Documents And Oaths) Regulation 2020 under the COVID-19 Emergency Response Act 2020 (applicable 15 May – 31 December 2020)

See also Supreme Court Practice Direction 10 Of 2020 – Informal Wills/COVID-19 (applicable 1 March – 30 September 2020)

For wills, see Part 2, sections 6-8.

For enduring documents, see Part 3, sections 9-12.

Wills and enduring documents require one of the witnesses to be a special witness (see section 5):

  • Australian legal practitioner
  • Justice of the Peace working in law practice
  • specially approved Justice of the Peace
  • employee of Public Trustee Office.

Wills and enduring documents require a separate special witness certificate (see sections 20-21)

New South Wales

Electronic Transactions Amendment (COVID-19 Witnessing Of Documents) Regulation 2020under the Electronic Transactions Act 2000 (applicable 22 April – 23 October 2020)

For wills and enduring documents, see Part 1, sections 1-4.

No change to witness qualification

Document must have witness special endorsement, see section 2.

Victoria

COVID-19 Omnibus (Emergency Measures) (Electronic Signing And Witnessing) Regulations 2020 (applicable 12 May – 25 October 2020)

(Statutory rule as made – Statutory Rule Number 34/2020)

For wills, see p art 5, sections 39-45.

For enduring documents, see Part 4, Division 3, sections 23-26.

No change to witness qualification.

Requires witness special endorsement:

                For wills, section 4.

                For enduring documents, section 24.

South Australia

COVID-19 Emergency Response (Section 17) Regulations 2020 under the COVID-19 Emergency Response Act 2020 (applicable to gazetted date; if none, six months from date of commencement – 9 April 2020)

No remote witnessing.

Section 17 of the Act does not apply to a requirement that a person be physically present to witness the signing, execution, certification or stamping of a document or to take any oath, affirmation or declaration in relation to a document.

Tasmania

COVID-19 Disease Emergency (Miscellaneous Provisions) Act (No.2) 2020(cessation date by ministerial declaration)

No remote witnessing – not referenced.

Western Australia, Northern Territory, Australian Capital Territory – not applicable.

NOTE: None of the COVID-related legislation makes any change to witnessing requirements for Superannuation Binding Death Benefit forms as set out in Superannuation Industry (Supervision) Regulations 1994 (Cth) regulation 6.17A. Note that the trust deed for the fund governs the witnessing requirements.

On 21 May 2020, in response to the parliamentary Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee tabling its report number 34 on voluntary assisted dying, the Queensland Government referred the report to the Queensland Law Reform Commission to make further recommendations and prepare draft legislation. The commission must table its report by 1 March 2021. See the Terms Of Reference or Make A Submission.

On 19 March 2020, the Law Council of Australia provided A Submission to the Attorney-General’s Department relating to the use of enduring power of attorneys.

By a Media Release dated 15 June, the Attorney General’s Department confirmed that a national Powers of Attorney Register will be progressed at the upcoming Council of Attorneys-General meeting on 27 July.

Christine Smyth is a former President of Queensland Law Society, a QLS Accredited Specialist (succession law) – Qld, a QLS Senior Counsellor and Consultant at Robbins Watson Solicitors. She is an executive committee member of the Law Council Australia – Legal Practice Section, Court Appointed Estate Account Assessor, and member of the Proctor Editorial Committee, STEP and Deputy Chair of the STEP Mental Capacity SIG Committee.

Should you wish to download a copy of this article please click HERE.

QLD Government’s Regulatory Support for Commercial Tenants Affected by COVID-19

QLD Government’s Regulatory Support for Commercial Tenants Affected by COVID-19
June 2, 2020 /

By Adam Smith

In response to the Federal Government’s release of a Code of Conduct regulating commercial leases, the Queensland Government has introduced regulations under the COVID-19 Emergency Response Act 2020 to mitigate the effects of COVID-19 on affected lessors and lessees. To be eligible for protection under the act, your lease must be deemed an affected lease under the act.

What is an affected lease?

  1. Under the regulation, a lease is considered an affected lease if it meets all the following criteria:
  2. It is a retail shop lease or a lease for carrying on the business of the tenant;
  3. It was current when the regulations commenced (28 May 2020);
  4. It is a lease of a premises where the tenant carries on business or is a non-profit body in the current financial year;
  5. The tenant’s turnover was less than $50 million for the 2018-19 financial year or is likely to be under $50 million for the 2019-20 financial year;
  6. The tenant is eligible for, but not necessarily enrolled in, the JobKeeper Payment scheme.

Relief for affected Lessee:

  1. During the response period defined under the regulation (29 March to 30 September 2020), if your lease is an affected lease:
  2. You may not be evicted or have your lease terminated for non-payment of rent or outgoings;
  3. Your rent must be reduced in proportion to your lost turnover (at least 50% of the rent reduction offered must be in the form of a waiver leaving the rest to be deferred);
  4. Your rent may not be increased;
  5. You may not be penalised for reducing trading hours or not opening;
  6. Your landlord may not make a claim on a bank guarantee or security deposit for unpaid rent or outgoings.

All Prohibited Prescribed Actions of the Lessors:

  1. The full list of prescribed actions that a landlord is prohibited from taking includes:
  2. Recovery of possession;
  3. Termination of the lease;
  4. Eviction of the lessee
  5. Exercising a right of re-entry to premises;
  6. Seizure of any property, including for the purpose of securing payment of rent.
  7. Forfeiture;
  8. Damages;
  9. The payment of interest on, or a fee or charge relating to, unpaid rent or outgoings;
  10. The performance of an obligation by the lessee or another person under a guarantee under the lease;
  11. Exercising or enforcing another right by the lessor under the lease or other agreement relating to the leased premises.

Negotiation:

It is important to inform your landlord that your turnover has been affected by COVID-19 so they can apply for support. If your landlord is not aware of this, they will be unable to assist you. In order to commence negotiations with your landlord you may want to seek independent advice from either a business advisor or a legal professional (Being well established in the area of Leasing, Robbins Watson Solicitors are available to provide such advice).

Relief for Landlords:

  1. Landlords on the other hand, may also be eligible for relief:
  2. Land Tax relief for landlords – if received, must be passed on to lessee in the form of rent relief;
  3. Banking relief for landlords – may be eligible to have their loan repayments deferred by their bank. A condition of the deferral is that they cannot terminate the lease or evict the tenant for rent arrears as a result of COVID-19.

The aim of this new legislation is to work side by side with the Federal Government’s Code of Conduct for commercial leases and ensure that landlords and tenants are provided with appropriate assistance during these difficult times.

If you have any queries or concerns regarding a commercial lease, feel free to book a consultation with one of our lawyers.

Should you wish to download a copy of this article please click HERE.

COVID, capacity challenges, and costs

COVID, capacity challenges, and costs
June 2, 2020 /

Home detention gives us much to contemplate about COVID-19, nothing more so than our mortality in the face of a life­ threatening pandemic.

With that, it seems there has been a rush by the general community to make wills.2 However, the combination of section 10(3) Succession Act 1981, the uncertainty around what constitutes presence, 3 COVID-19 social distancing laws,4 and lack of available witnesses5 have conjured up circumstances in which a cauldron of conspiracies can thrive.

None more so than those around the validity of wills undertaken during this pandemic, particularly where they do not comply with the strict execution provisions. This is despite attempted innovations, such as law firm carparks becoming the site for drive-by executions6 and the Queensland Government finally passing laws to provide a limited form of witnessing by audio-visual means. 7

Unlike the general law,8 wills do not carry a presumption of mental capacity. In any probate application, the propounder of the will carries the onus of proof.9 However, where a will is rational on its face10 and duly executed,11 the presumption of capacity is in favour of the propounder.12 Where it is not duly executed, then the onus shifts back. And it is at that point we might expect the cauldron to bubble over.

However, before your client(s) toil over their troubles and rush to litigate, they might pause and reflect on the decision of The Estate of Milan Zlatevski; Geroska v Zlatevski (No.2) (2020] NSWSC 388. That matter addresses the issue of costs arising from the substantive contested probate application. 13

In the substantive matter, her Honour Henry J found the testator had testamentary capacity, granted probate of the will in solemn form and dismissed the cross claim by the deceased’s son (the defendant)14 ordering that he pay the costs of the proceedings. 15 The son, not dissuaded by his loss, then made an application to vary the costs order on the basis that his challenge to testamentary capacity was as a result of “the deceased’s conduct and it was reasonable for him to have investigated the deceased’s will”. 16

“Fair is foul, and foul is fair.”
The witches’ philosophy of life.1

The son contended that it was reasonable for him to raise the substantive challenge because of his father’s conduct. First he contended that statements made by the testator to his solicitor about various transactions were based on delusions. 17 The court rejected that contention, distinguishing between delusion and mistaken belief. 18 Second, the son contended the deceased’s action of excluding “his only son, from his estate and with whom the deceased lived with for 25 years”19 was sufficient to justify the application.

Her Honour rejected both propositions20 and dismissed his application for costs. In doing so she set out the following analysis of the law in relation to costs in probate litigation:

  1. “The general rules applicable to the award of costs apply to probate litigation, as they do to other contested litigation. This means that the Court has a broad discretion to award costs and, ordinarily, orders for costs should ‘follow the event’, with the consequence that the unsuccessful party is ordered to pay the successful party’s costs: Civil Procedure Act 2005 (NSW), s98; Uniform Civil Procedure Rules 2005 (NSW), r 42.1; Walker v Harwood (2017] NSWCA 228 at (52] per Macfarlan JA.”21
  2. “Two exceptions to the general rule that costs follow the event have been recognised to apply in probate litigation, being:  (a) where the testator has, or those interested in the residue have, been the cause of litigation, the costs of the party who unsuccessfully challenged the will may be paid out of the estate; and (b) if the circumstances reasonably called for an investigation of the will, the costs may be left to be borne by those who incurred them. See: Re the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 709; Perpetual Trustee Co Ltd v Baker (1999] NSWCA 244 at (13]-(14]; Shorten v Shorten (No.2) (2003] NSWCA 60 at (14]-(15].”22
  3. “A case does not fall within the first exceptional category merely because a party raises a triable issue as to a deceased’s testamentary capacity: Shorten v Shorten (No.2) (2003] NSWCA 60 at [27]. “23 Relevantly, “[i]n cases where a challenge is made to testamentary capacity, more than mental frailty or the incapacity of the deceased is required to say that the testator caused the litigation and that the case falls within the first exception: King v Hudson (No.2) (2009] NSWSC 1500 at [12].”24

The son relied on the quality of the instructions given to the testator’s solicitor to evidence actions by the testator as justifying his cause to investigate. 25 He focused his submissions on the fact that the solicitor did not have a recollection of the instructions, independent of his notes, and that those notes did not record the solicitor administering a Banks v Goodfellow test, nor did the notes identify the solicitor adhering to ‘best practice’ in taking the instructions.26

On these points the court observed that there was no medical nor lay evidence of lack of capacity, no prior competing will, nor issues raising doubt as to the testator’s capacity.27 In fact, the court found that the solicitor’s will notes were integral to assisting the court in coming to a view that the testator had capacity. 28 The detail in the notes and the cogency of the explanations recorded “demonstrated the deceased’s testamentary capacity, rather than providing a reason for investigation of the will on that basis”.29 Ultimately, the son’s challenge to the will was founded in the fairness or otherwise of the terms of the will”‘ and he paid the costs for that exercise.

Christine Smyth is a former President of Queensland Law Society, a QLS Accredited Specialist (succession law)- Old, a QLS Senior Counsellor and Consultant at Robbins Watson Solicitors. She is an executive committee member of the Law Council Australia – Legal Practice Section, Court Appointed Estate Account Assessor, and member of the Proctor Editorial Committee, STEP and Deputy Chair of the STEP Mental Capacity SIG Committee.

Notes

  1. William Shakespeare. Macbeth.
  2. abc.net.au/ne,.ys/2020-04-18/coronavirus-wills­finances/12155576.
  3. Refer to my article in the May edition of Proctor, page 44.
  4. health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert/how-to-protect-yourself-and­others-from-coronavirus-covid-19/social-distancing­-for-coronavirus-covid-19.
  5. qld.gov.au/law/legal-mediation-and-Iustice-of-the­peace/about-justice-of-the-peace/search-for-your­nearest-jp-or-cdec.
  6. ctpost.com/local/article/Attorneys-offer-drive-up-legal­-servicce-for-15180636.php.
  7. parliament.qld.gov.au/documents/tableOffice/TabledPapers/2020/5620T636.pdf. see section 9 and legislation.qld.gov.au/view/html/asmade/sl-2020-0072.
  8. Gibbons v Wright [1954] HCA 17: 919540 91 CLR 423
  9. Bailey v Bailey [1924] HCA 21. (1924) 34 CLR 558, 570-572. Re Hodges; Shorter v Rogers (1988) 14 NSWLR 698. 704-707: Worth v Clashom [1952] HCA 67: (1952) 86 CLR 439. 453.
  10. Gomall v Masen (1887) 12 PD 142; Bailey v Bailey [1924] HCA 21. (1924) 34 CLR 558; Bull v Fulton [1942] HCA 13: Fisher v Kay (2010) WASC 160, (83): Tobin v Ezekiel (2012) NSWCA 285: (2012) 83 NSWLR 757, [44]-[45]: Veall v Veall (2015) WSCA 60. (168); Power v Smart [2018] WASC 168, (6041 The Public Trustee v Nezmeskal (2018) WASC 393. (44).
  11. Wheatley v Edgar (2003) WASC 118; Wade v Frost (2014) SASC 162: Tsagouris v Bellairs (2010) SASC 147
  12. Shorten v Shorten [2002] NSWSCA 73. [54].
  13. The Estate of Milan Zlatevski; Geroska v Zlatevski (2020) NSWSC 250.
  14. At [2].
  15. At [3].
  16. At [4].
  17. At [11].
  18. See The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250 at [17], [35], [81] ,[83], [112]-[148]. 19 At[12].
  19. At[13).
  20. At [7]; for Queensland, the applicable rule IS 681(1) of the Uniform Civil Procedure Rules 1999.
  21. At [8].
  22. At [9].
  23. At [9].
  24. At [11].
  25. At [20]-[22].
  26. At [20]-[28].
  27. At [16]-[18] also at [28]-[29].
  28. At [28].
  29. At [32].

Should you wish to download a copy of this article please click HERE.

pleasant surprise from a grateful client

pleasant surprise from a grateful client
May 21, 2020 /

A pleasant surprise from a grateful client for a job well done by Sean Powell, one of our specialist estate lawyers.

We’re always focused on our clients and appreciate our skilled and dedicated team.

#lawyer #litigation #wills #estate #burleigh #goldcoast #clients

COVID-19 and Interaction with Testamentary and Enduring Documents

COVID-19 and Interaction with Testamentary and Enduring Documents
May 15, 2020 /

The Queensland Government has responded to the complexities surrounding Wills and Enduring documents resulting from the current COVID-19 pandemic with passing the Justice Legislation (COVID-Emergency Response-Wills and Enduring Documents) Regulation 2020.  Being welcomed by Queensland legal practitioners who have been navigating imposed social distancing and isolation measures, Solicitors will now be able to provide additional services to those vulnerable clients who may be limited in obtaining advice and services relating to Wills and Enduring documents (i.e. Enduring Powers of Attorney and Advance Health Directives).

This freshly passed legislation now permits Wills and Enduring documents to be executed by way of audio visual links – something that was not considered as part of the formal requirements for Wills under s 10 of the Succession Act (Qld) 1981.  It is important to note however, that this legislation is due to expire on 31 December 2020 and is a temporary measure during the current climate.

At Robbins Watson Solicitors, we pride ourselves in utilising the advancement of technology and the adoption of progressive laws for the benefit of our clients – being a paperless firm with technical capabilities to continue to provide seamless services to our clients, we are pleased to now offer the ability to arrange for the making of, execution and witnessing of Wills and or Enduring documents by way of audio visual link.  This will be particularly helpful for those clients with health concerns who cannot attend the Firm, residents in aged care facilities, and those required to practice social distancing and isolation.

If you would like to find out more on how this legislation may relate to yours or a family member’s circumstances, please do not hesitate to contact our office, and speak with one of our staff who will be happy to assist.

Client Care and Attention

Client Care and Attention
May 15, 2020 /

At Robbins Watson we are committed to ensuring the service we offer our clients is of the highest standard.

Our dedicated family law team are dedicated to ensuring our clients are treated as individuals. We appreciate how stressful it can be and we ensure our clients receive the upmost care and attention as well as good quality legal advice and representation.

If you have any family law issues please don’t hesitate to contact our specialist family law team on 5576 9999.

It’s about a child’s future, not just the past

It’s about a child’s future, not just the past
May 12, 2020 /

in determining the appropriate relationship which a child should prospectively have with a parent, family law proceedings tend to look to the future, rather than allowing the historical relationship which a parent has had with a child to be determinative.”

This brief line from a recent judgment of the Family Court of Australia encapsulates a key aspect of parenting Orders.

Family law judges are tasked by law with making Orders which are in the best interest of the child. There are two primary considerations which tend to be summarised as being the benefit to the child of having a meaningful relationship with both parents, and assessing the risk of harm to the child in doing so.

In this particular case, the court was considering the benefits of a meaningful relationship between the child and a father. The mother had undoubtedly been the child’s primary carer and attachment, however the Court was asked to consider orders which both stopped any relationship between the child and the father, or alternatively Orders which allowed for the development of a greater relationship between the child and his father than had been the case in the past.  There were also allegations of harm, which were denied. The Court made Orders extending the child’s time with the father and these were appealed.

The appeal Judge considering the matter made this comment;

“… Ultimately it was quintessentially a matter for the primary judge as to what weight she gave to that matter. It is plain that she gave it some, but not determinative weight. That is unsurprising, since in determining the appropriate relationship which a child should prospectively have with a parent, family law proceedings tend to look to the future, rather than allowing the historical relationship which a parent has had with a child to be determinative.”

In considering what is in the best interest of the child, this can take into account not only what this child’s life has been like and is like now, but also look to the future and the relationship that the child should have.

It’s about what’s in their best interest.

For the full reference: Shaw & Shaw [2020] FamCAFC 80 (9 April 2020).

Should you wish to download a copy of this article please click HERE.