The Ademption Factor

The Ademption Factor
July 22, 2019 /

Estate planning is hardly a regular consideration in the context of daily life, and understandably so – no one wants to think about their own mortality.  But with changes in life, it sometimes becomes necessary to turn the mind back to estate planning matters, at least briefly.

Where you have provided a specific gift of property to be given to specific persons under your will, there is a risk of that gift failing if, at time of your death, you do not own that specific item of property.  If you no longer own the property that you have specifically given, then that gift will fail – and this happens even if you have bought a replacement asset.  The gift you give in your will is specific to the property specified in your will. 

There are many reasons why you (or your attorney under an enduring power of attorney) may choose to, or need to, sell specific assets after your will is made – for example, your home may need to be sold to fund your entry into assisted living accommodation.  So if your will makes any specific gifts, and there is any change to your ownership of the property specifically gifted by your will, then you need to review your will to ensure that it still operates fairly.  Unfortunately, this may not be possible, as an attorney may sell the property on your behalf (under an enduring power of attorney), such as if you have lost capacity to manage your own affairs. 

Ultimately, the risk of unfairness is greatest where you have given a specific property with the intention of “balancing up” the entitlements of the beneficiaries in your will.  If the specific property has been sold by the date of your death, then that beneficiary will receive less than you intended, and the gift of residue will have greater value.  There have been instances where this has happened where the person intended to receive the largest inheritance ultimately received very little or nothing.

For this reason, it’s always important to be mindful of any significant life changes, as this can have significant repercussions for estate planning matters – consequences that continue, even after your death.

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

FINDING THE RIGHT DISPUTE RESOLUTION SOLICITOR– Sorting the Wheat from the Chaff

FINDING THE RIGHT DISPUTE RESOLUTION SOLICITOR– Sorting the Wheat from the Chaff
July 19, 2019 /

With over 71 000 solicitors in Australia, finding legal representation can be an overwhelming task. This is particularly the case for dispute matters.  Why? Because dispute resolution is not just a commercial decision, it is personal! Let’s be frank, all lawyers have a law degree, all qualified lawyers are admitted to practice in the court, what makes the difference is the quality of their experience and whether you can trust them.  Trust is personal, and without trust, your ability to achieve the best outcome for you is diminished.  

Whether you are pursuing or responding to a claim, be it for a contested estate, building dispute, failed mortgage investment, debt recovery; breach of contract or trust matters and the like; disputes are plain stressful and demanding. Having the right solicitor for you, the right solicitor with the right experience, guiding you through a complex, overwhelming and at times confusing legal process, is critical. Trust and confidence in the relationship you have with your solicitor is essential for your commercial and personal wellbeing.  

So how do you sift through the cacophony of solicitors claiming to be that person? 

Experience

Does the solicitor have the backing of their governing professional body?  In Queensland, that is the Queensland Law Society (QLS). Not all solicitors can be members of the QLS. Is your solicitor a member of the QLS? If not, then alarm bells should ring and questions ought to be raised about suitability.  Have they had their license to practice law suspended, revoked or refused?  To find out more, click this link: https://www.qls.com.au/For_the_community/Find_a_solicitor 

If they are a member of the QLS, is that solicitor on a QLS referral list?  QLS vets their suitability for you.  If QLS confidently recommends them, then you can be confident of their expertise and experience.  To find out more, click this link:  

https://www.qls.com.au/For_the_profession/Practice_support/Schemes_services/QLS_referral_service 

Does the solicitor or the law firm they work for have the support and recognition of other professional organizations? If so then you know their colleagues and the commercial world respects their skills.  Are they sought after for their expertise by industry bodies, such as legal education providers? Do they present at industry conferences and seminars?  If so then that is another indicator of industry recognition and respect for their expertise and experience. 

Do their clients and colleagues recommend them?  In a world full of social media, self-promotion and marketing spiel, the ye olde personal endorsement is still one of the best ways to choose your solicitor.  

Keep in mind that simply having a law degree is not enough.  It is illegal to practice law without being licenced.  That process involves passing rigorous tests as to both qualifications and suitability – is the solicitor a fit and proper person to practice law? 

Personality  

Dispute resolution and litigation is tough.  It requires more than a sharp mind and technical skills.  It requires a deft, nibble footed approach whilst remaining sensitive to your needs.  It requires expertise and skill in navigating both the technical issues and the personalities. Does your solicitor have both?  Do they have the ability to take a matter to a trial if needed, whilst aiming at all times to reach a resolution that fits you? Why? Because in Qld we have a legislated process of engaging in alternative dispute resolutions.  ADR is not a soft option, it is an option that takes the decision making out of the hands of the court and puts it back into your hands.  This requires negotiating skills.  Negotiating, is not about chest beating and swagger.  It requires
both technical knowledge and people skills.  Does your solicitor have the respect and trust of their colleagues and opponents?  Can they work with others to achieve an outcome?  

The Firm’s Values

When choosing a solicitor to assist you, it is important to remember that you ultimately retain the services of the law firm, rather than the individual solicitor. Do the values of the law firm fit with your needs?  To answer this question, you might ask these questions:  

  • Does the law firm have a structure that supports their solicitors, thereby supporting you?   
  • Does the Law firm have deep ties to the community – will they be in practice tomorrow?   
  • What is their history?
  • Do you know who the Partners/ Directors are?  
  • Do they have an actual office? 

There is much hype and excitement around “digital disruption”, be careful that hype isn’t a smoke screen for a fly by night operation. We recommend you look for a law firm that combines the best of both worlds – a traditional presence, while utilizing technology to deliver superior, more efficient services to you.  

When confronted with the complex nature of civil litigation and the legal jargon that follows, having the right representation can be the difference in sorting the wheat from the chaff,  in the  crowded field.  Call Robbins Watson Solicitors on (07) 5576 999 to find the right litigation solicitor to suit your needs.  

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

“It’s me or the Public Trustee” – Do I really need an Enduring Power of Attorney?

“It’s me or the Public Trustee” – Do I really need an Enduring Power of Attorney?
July 17, 2019 /

As with all things in the law, the answer isn’t strictly certain and is nearly always fact and circumstance specific. What is certain though, is that leaving your Enduring Power of Attorney down to the wire will cause costly problems for you and your family. Most agree it is better to have someone you know and trust as your Attorney, someone you choose that cares about you, rather than risking the court imposing on you a large, faceless, bureaucratic organisation, to whom you are but one of many thousands, managed from afar, for a fee! 

On several occasions, I’ve heard my clients initially instruct:

“Oh, I don’t need an enduring power of attorney right now, I’ll wait until the time comes.”

The difficulty with this thinking, is that losing your faculties is usually a progressive state – you might not necessarily be aware that it’s occurring to you.  Given the nature of an Enduring Power of Attorney, it carries strict requirements for the Principal to have capacity at the time of giving instructions for, and the execution of the document – at this time, the Principal must understand the nature and effect of the document they are signing.

Tempting fate and leaving your Enduring Power of Attorney to chance can result in a “too little, too late” scenario: by the time your family and friends realise you’ve likely lost capacity and you require assistance with your personal/health and financial matters, it’s almost always too late for you to make an Enduring Power of Attorney. 

In those circumstances, intervention and assistance from QCAT, the Office of the Public Guardian and The Public Trustee of Queensland is required – typically through a court ordered process. What costs more, an Enduring Power of Attorney prepared with knowledgeable legal advice and guidance, controlled by you, or a court ordered process controlled by third parties using your funds? In those circumstances, costs are not confined to money.  What cost is to your health and wellbeing if you don’t prepare in advance?

Generally, where you have lost capacity, institutions, asset holders and organisations require documented authority (i.e. an EPOA or a QCAT Order) to be produced by those people assisting you in order to follow their instructions, particularly if it is relating to your finances and living/care arrangements.

We plan for our death by preparing our wills, but we rarely plan for our slow demise by making our Enduring Power of Attorney.  We are all living longer, but not always well.  Now more than ever, we need to plan for our decline that naturally comes with age.  If you want to age the way YOU CHOOSE – safely surrounded and supported by those who care about you, then we recommend you speak to us about establishing a suitable plan for your twilight years. You don’t need us, if all you want is a boiler plate Enduring Power of Attorney document, downloaded from a government portal.  But if you want to craft your own Enduring Power of Attorney, customised to your needs, your circumstances, your family and your financial affairs, then call us to discuss the numerous options available to you. If you would like to discuss this further – then we invite you to call us (07) 5576 9999, to make an appointment to discuss.

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

This can’t be in the best interest of a child, can it? Safety and loving the less than perfect parent

This can’t be in the best interest of a child, can it? Safety and loving the less than perfect parent
July 16, 2019 /

When it comes to making Orders about children, the Family Law Act requires that the Judge decide what is in the best interest of the child. Concerns that one parent has harmed or is harmful to the child are common. Many parents take the view that any “risk” should be avoided altogether and this means the child spends no time with one of their parents.

The Court’s role in this circumstance is to balance the promotion of the child’s relationship with both parents, but in a way which protects the child and manages any harm or risk of harm to the child.

Why? How is that ok?

Risk takes a variety of forms

The law contemplates that harm can be physical or psychological harm and includes being subjected to, or exposed to, abuse, neglect or family violence. There are various levels of human decency out there, ranging from basic human fallibility to downright appalling, even criminal, conduct and everything in between. Most parents fall into the human fallibility category. There are however, a few who fall between the range of appalling to criminal. 

In those circumstances the Court is required by the law to identify where on that sliding scale the risk to the child falls and what can be done to reduce or manage that risk. Sometimes the answer is simple and protective measures can be put in place to safeguard the child, sometimes the Court decides that one parent is so harmful or frightening to the child and there is no safe way the child could spend time with that parent. 

Kids still love a less than perfect parent.

A child may still feel loss at not seeing their parent, even if that parent was not perfect. A child typically spends all of their lives being taught to love and revere their parents and they have relied on their parents to meet their needs. Even when parents makes a mistake (and let’s face it everyone does – there is no such thing as a perfect parent) that love doesn’t simply disappear.

The parent / child bond is one of society’s most primal relationships. The law recognises the inherent value of that relationship and so there must be compelling reasons to interfere with it, and only do so as far as the Court thinks it is necessary for the child. 

So how does the Court deal with this situation?

At the early stages of Court proceedings, the Judge doesn’t have all of the evidence – yet. The Judge must be mindful that some of the evidence may be in dispute and it is not fully tested until the trial.

So what will the Judge have regard to when making Orders in these circumstances? The law still requires the Judge to consider the list of primary and secondary considerations set out in the Act when deciding what is in the best interest of the child. The Judge also has the power to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

If you are concerned about your child or the other parent then contact us on 07 5576 9999 to discuss your matter with an experienced family lawyer who can support and advise you to navigate this complex area.   

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

The Unreasonable Will

The Unreasonable Will
July 10, 2019 /

Although introduced in 2006, the regime concerning court authorised wills under sections 21-28 of the Succession Act 1981 was little-used for the first 5 years of its life.  There were a very small number of decisions by the Supreme Court of Queensland, authorising wills on behalf of persons who lacked testamentary capacity until approximately 2011.  Those first cases, approached tentatively by the Supreme Court, as well as litigants, ultimately paved the way for more complex applications for court approved wills for persons lacking capacity, evident by the increase in reported judgements concerning the issue from 2013 onwards.  Some of the more comprehensive decisions have effectively established a helpful precedent for how the Supreme Court would approach those matters.

In 2019, the Court of Appeal in its decision of Spink v Russell [2019] QCA 107 was required to determine whether the considerations affecting the authorisation of making a will on behalf of a person lacking capacity, and specifically, whether a will could be authorised in what may be seen as unreasonable terms.  It ultimately decided that a court-authorised will, can be made in unreasonable terms.

The matter concerned the estate planning for a lady with a substantial estate, valued up to approximately $99,000,000.  She and her late husband had decided in their wills made in 2014 to leave their estates to one another in the first instance, and then upon their respective passing, the leave their estates to their children and step-children, among others, in unequal shares.  Three children would each receive $5,000,000 and the last child would only receive $1,000,000.

After the husband died, a change in family circumstances occurred so that a gift of $5,000,000 to one child was no longer appropriate.  The testator had lost capacity to make a will, and so a court-authorised will was sought to amend her will to a more appropriate circumstance.  Ultimately, the court made the will, but it increased the gift to the last child from $1,000,000 up to $4,000,000.  This was ostensibly to reduce the likelihood of a further provision claim by the last child.

What the Court of Appeal determined, however, is that the court must be satisfied that the will proposed is or may be one that the testator would make.  The testator in this instance had always intended to provide a smaller benefit to one child, and the court was not convinced that the will making increased provision of $4,000,000 to that child is one that the testator would or might have made – even if a proposed will appears unreasonable to an impartial bystander, it does not grant the authority to make that will unless the court is satisfied that the will proposed is or may be one that the testator would make.  On this basis,  the Court of Appeal concluded there was no evidence that the testator would have made increased provision for the last child, even when advised about issues of further provision, and so there was no basis to make the will approved in the first instance.

Loss of testamentary capacity is a serious issue, and can have significant implications for all facets of estate planning.  This just reiterates the importance of trusted estate planning advice, including resort to court proceedings in appropriate circumstances to ensure that a testator’s testamentary intentions are upheld and fulfilled.

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

The Role of a Real Estate Agent

The Role of a Real Estate Agent
July 9, 2019 /

Often in conveyancing we see the blurred lines being tiptoed by real estate agents.

The purpose of engaging a real estate agent is to assist sellers in selling their properties in accordance with the market and the sellers’ goals. Thus, when dealing with potential buyers they are to advocate for sellers’ interests when negotiating.

In some circumstances we have received dated contracts (where we act for the seller), where there are special conditions which are very vague or onerous on the sellers. It often results in a conversation where the seller explains that the real estate agent had promised the buyer something and that’s why the special condition exists.

There are also often crucial errors or omissions in the contract, which can lead to substantial problems for the seller.

It is in this circumstance that we raise the issue of who does the real estate agent work for? Who is paying their commission? This is a conflict that is clear in the legal profession, yet not clear in the real estate agent profession.

Sometimes sellers feel as though they are backed into a corner with the real estate agent’s promises, encouragement or advice. We at Robbins Watson recommend all parties whether selling or buying have a solicitor review the contract to ensure your interests and goals are legally provided for in the contract prior to signing.

If you are looking at selling or buying, please contact our office on 07 55769999 if you would like the contract reviewed prior to signing.

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

Organ donation – opt in or opt out?

Organ donation – opt in or opt out?
July 9, 2019 /

In Australia, you can become an organ donor by registering your wishes with the Australian Organ Donor Register (“opt in”). Even if you have registered, this in itself is not sufficient: family members will be asked, following your death, if you continued to hold your views up to your death and whether they consent to you donating your organs. If they do not consent, then your organs will not be donated.

Although many people agree that organ donation is to be applauded, most do not register. As a result, there are long waiting lists, and unfortunately, some have passed away before receiving their life-saving organ donation.

Several countries, such as Wales, England, Iceland, France and the Netherlands, have changed or are changing their legislation to essentially have an “opt out” system. There, you are presumed to have given your consent to be a donor unless you have opted out. This can also be described as a tacit consent (silent consent).

There are still differences between these countries as there are soft opt-out systems and hard opt-out systems. Some do not even have a register. So, do the next of kin still have a say in what happens with their loved one’s organs? If the system is a “soft opt-out” system, they do. If the system is a “hard opt-out” system, they do not.  For example, France has a “hard opt-out” system where a doctor only has to inform the relatives which organs are to be donated, without actually asking their permission. Spain, on the other hand, has a “soft opt-out” system and ranks highest in organ donations (although it is said that this is not as a result of their legislation, rather than the Spanish being more suitable candidates for organ donation).

Irrespective of what your views are on what the best system is, if you wish to be an organ donor, be sure to discuss it with your family, and your estate planning lawyer, who can ensure that your wish is reflected in your Will.

Australian Organ Donor Register: https://donatelife.gov.au/register-donor-today

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

Adverse Possession? Squatter’s Rights? And More?

Adverse Possession? Squatter’s Rights? And More?
July 7, 2019 /

Is possession really nine-tenths of the law…  Or rather an avoidable issue altogether?

Since the decision of McFarland v Gertos [2018] NSWSC 1629 delivered October 2018, there’s been renewed interest in adverse possession rights, sometimes known as “squatter’s rights”.  But it also serves as a timely reminder that estates ought to be administered promptly, to ensure that the property of a deceased person is transferred to the beneficiaries properly entitled to it under a will or intestacy.

The NSW decision received rather substantial news coverage, especially in comparison to a Queensland decision delivered a month later, in Re: Browne [2018] QSC 297 which again reiterates the importance of promptly administering a deceased person’s estate, rather than putting ones head in the sand in hopes that the matter will never have to be dealt with.  Re: Browne instead dealt with a farming property held by Mr Michael Browne who was born in 1868 and disappearing without any trace in about 1899.  From the time of his disappearance, his property continued to be worked by his descendants who simply treated the property as their own, paying rates and the like.  Despite this, the property remained registered to Michael Browne for the next 119 years.  Sadly, had the estate administration issues been dealt with in a more timely manner (say, 100 years ago!), then the 2018 court application would never have been required.

The Supreme Court of Queensland was asked to issue an order registering the property to Michael Browne’s great-nephew, Francis, as adverse possessor of the property.  Whilst the possibility of adverse possession was considered – and may well could have been applied in this instance – the court elected to bypass the adverse possession issues by reliance on the beneficial interests created by the intestacies and wills of Francis’ predecessors.  This took form in utilising an rarely-used provision of the Land Titles Act, being section 114, which enables the Supreme Court to order the removal and registration of persons from the registered title – so entirely avoiding the issue of adverse possession in this matter. 

So it would appear there’s more than meets the eye when it comes to squatter’s rights, especially where dealing with a long-standing family property.  But still gives credence to the old saying, that possession is nine-tenths of the law…

Saying that, it’s always important for estates to be properly administered.  Had the succession of the property been dealt with in the years after Michael’s disappearance – as opposed to more than 100 years later – then the legal saga above likely could have been avoided and the property dealt with by ordinary inheritance procedures.  The applicant was very lucky in that it was possible to trace the chain of beneficial entitlements in his relatives’ estates, to establish his interest, and that he was able to marshal the evidence in support of his claim to the property.  If he hadn’t been able to do so, the applicant may have been put to proof of his claim for adverse possession – and so incurred greater costs in establishing that claim.

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

Gold Coast Central Chamber of Commerce luncheon at Cucina Vivo, The Star Gold Coast

Gold Coast Central Chamber of Commerce luncheon at Cucina Vivo, The Star Gold Coast
July 4, 2019 /

On 4 July 2019 our Partner Marcus Woodfield and Property Solicitor Brittney-Anne Battelley attended the Gold Coast Central Chamber of Commerce luncheon at Cucina Vivo, The Star Gold Coast. Brittney even made an appearance on the Gold Coast Bulletin website enjoying the day.

QLS Gold Coast Symposium

QLS Gold Coast Symposium
July 2, 2019 /

On Friday 7 June 2019 our Consultant and Accredited Specialist Christine Smyth and Family Law Solicitors, Linda Miller and Sarah Galvin, attended the QLS Gold Coast Symposium. Our Linda Miller was lucky enough to make an appearance in this months QLS members magazine Proctor attending the event!