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

QLS Gold Coast Symposium

Fake friends find a flaw

Fake friends find a flaw
July 1, 2019 /

New power of attorney laws may offer a loophole

What makes a ‘real friend’? The ordinary Macquarie International English Dictionary 1  defines friend
as “…somebody emotionally close, somebody who trusts and is fond of another”.2

But we are in the new millennium, and the term ‘friend’ takes on many forms, 3  to such an extent that being a ‘friend’ is now a popular paid service in certain cultures,  for example Japan. 4

Currently 27% of people aged over 65 live alone. 5  With the rise of an ageing and frail population, friendship has never been more important and increasingly difficult to obtain. Recent statistics identify around one in seven people in Australia is aged over 65, 6 with predictions that rate will rise to one in four by 2056. 7

Without support structures close by, older people have a significant need to rely on paid services for all manner of day-to-day tasks, and now it seems paid friendship may be one of them. A recent news article 8 reports on the arrival of a paid friendship service to the Gold Coast. It is not a unique service, as there are currently several services online providing access to paid friends throughout Australia.9

Australian households aged over 55 hold 53% of our nation’s wealth at an estimated worth of $2.8 trillion. 10 These demographic features drive the ever-growing need for members of our aged population to have an attorney to assist them to manage their affairs as their capacity to do so diminishes. While there is no registry or central data collection
system 11  to know how many people have an enduring power of attorney, a recent report provides that around 30% of those surveyed had one in place. 12  It is not unreasonable to expect this figure to rise.

Current power of attorney law recognises the vulnerability of our elder population to exploitation. Noting that elder abuse is on the rise, our Government has seen a need to review and amend power of attorney laws through the passing of the Guardianship and Administration and Other Legislation Amendment Act 2019 (Qld) (GOLA). The
GOLA aims to increase protection from exploitation, with the new laws designed to “enhance safeguards for adults with impaired capacity in the guardianship system”. 13

In line with this policy objective, certain people are prohibited from being appointed as an enduring attorney, nor can they be a statutory health attorney. Relevantly here, one of those exceptions is anyone who is a ‘paid carer’ 14 
 for the principal, either before or after the commencement of the appointment. 15

Under the current legislation, there are no time limits to this exception. The new Act 16 attempts to broaden this  protection by including a timeframe prohibiting a ‘paid carer’ from being an attorney if they held  the role of ‘paid carer’ within three years of being appointed, or subsequently become  a ‘paid carer’ after the appointment. 

The intent of this amendment is to “ensure unsuitable people cannot act as attorneys and to reduce the risk of abuse or exploitation to an adult by a person appointed under an enduring document”. 17

The definition of ‘paid carer’ is, in effect, someone who performs services for the principal and gets paid for those services. The question that therefore arises is, what is the scope and extent of those services? The definition of ‘paid carer’ assists us by referring us to the Griffiths v Kerkemeyer 18  principle.

In short, it includes anyone who provides paid domestic or nursing services to the principal. So that would obviously include cleaners,  gardeners, drivers and nursing assistants.  But under this definition, both under the old and new legislation, it does not include being a ‘paid friend’. Who hasn’t helped a friend take the laundry off the line, mowed their lawn, cooked them a meal, or driven them to the doctor when they are unwell? These are all services that fit within the definition of ‘paid carer’. Accordingly, there is scope within ‘friendship services’, for the objects of the legislation to be circumvented by individuals claiming to be a ‘paid friend’ not a ‘paid carer’ in an attempt to avoid
application of the legislation.

In seeking to protect the vulnerable, our legal crystal balls can only forecast so much, because the commercial world tends to move at a far greater pace than legal developments. For the moment, at best, we can be aware of this issue and raise it with the client, should it be at all relevant to their instructions at the time of making the enduring attorney.

Sometimes friends in need can be targeted by ‘friends’ in finance, indeed.

Notes
1  Second edition.
2  There is no statutory definition of ‘friend’ of which I am aware, although there is a definition of friendly society in the Acts Interpretation Act (Qld). 
3  See social networking services such as Facebook, MySpace, WhatsApp and so on. There are currently at least 60 different social networking sites that rely on the concept of friending to build networks see: makeawebsitehub.com/social-media-sites.
4 theatlantic.com/family/archive/2017/11/paying-forfake-friends-and-family/545060.
5 aihw.gov.au/getmedia/d18a1d2b-692c-42bf-81e247cd54c51e8d/aihw-australias-welfare-2017chapter5-1.pdf.aspx.
6 aihw.gov.au/reports/older-people/older-australia-at-aglance/contents/social-and-economic-engagement/
employment-and-economic-participation.
7 ABS Media Release of 4.9.2008 – one in four Australianswill be 65 or older by 2056 – up from one in 10 in 2007.
8 goldcoastbulletin.com.au/subscribe/ news/1/? sourceCode=GCWEB_ WRE170_a&dest=https://www.goldcoastbulletin.com.au/lifestyle/a-gold-coast-woman-is-starting-a-businesscharging-people-to-be-her-friend/news- story/a82b9347af1c5a94991c24f99614e358&memtype=anonymous&mode=premium&is_silent_authentication=true&error=login_required
9 rentafriend.com.
10 mccrindle.com.au/insights/blog/australiasgenerations-wealth-income.
11 Except in Tasmania, where registration of an EPOA is required for validity Powers of Attorney Act 2000
(Tas.), s16; and see s7 Powers of Attorney Act (NT),s25 Powers of Attorney Act (Qld) et al – under which
powers of attorney may be registered, and arerequired to be registered before dealing with land.
12 Having the Last Word: Will making and contestation in Australia, Key Findings, ARC Linkage Project, March
2015; Cheryl Tilse, Jill Wilson, Ben White, LindaRosenman and Rachel Feeney.
13 Explanatory notes, GOLA.
14 Sched 3, s3 – dictionary: paid carer, for a principal, means someone who— (a) performs services for the principal’s care; and(b) receives remuneration from any source for theservices, other than—(i) a carer payment or other benefit received from the Commonwealth or a State for providing home carefor the principal; or (ii) remuneration attributable to the principle that damages may be awarded by a court for voluntary services performed for the principal’s care.Note— This principle was established in Griffiths v Kerkemeyer (1977) 139 CLR 161—see Queensland Law Reform Commission Report No. 45, ‘The assessment of damages in personal injury and wrongful death litigation, Griffiths v Kerkemeyer,Section 15C Common Law Practice Act 1867, October 1993.
15 ss29, 59, 63 of the Powers of Attorney Act 1999, as amended by the GOLA.
16  Not commenced at the time of writing (20 May, 2019).
17  Explanatory notes, GOLA.
18  (1977) 139 CLR 161.

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Can't we all just get along – Break-ups, Real Estate and Representatives

Can't we all just get along – Break-ups, Real Estate and Representatives
June 27, 2019 /

Although there can be many unpleasant aspects of a break-up, selling a jointly owned matrimonial home can be a difficult task. It can also be troublesome for practitioners. In the recent disciplinary proceeding of Legal Services Commissioner v Sheehy [2019] 1 Qd R 541, Sheehy was reprimanded and fined for unsatisfactory professional conduct by failing to acknowledge the significance of joint instructions. 

A former husband and wife had obtained orders from the Family Court of Australia for jointly-owned land to be sold. A contract of sale was signed.  Sheehy acted for the wife, while another solicitor “Welsh” acted for the Husband. Due to complications, the settlement date was extended multiple times.  

On the rescheduled settlement date, another extension was sought. The Husband denied the request and terminated the contract. In spite of this, Sheehy advised the Buyer’s solicitor that the wife was able to settle. Settlement proceeded and the money was paid to Sheehy’s trust account. The Buyer’s solicitor attempted lodging the transfer document but was prevented from doing so by a caveat lodged by the Husband. Ultimately, the money was returned to the Buyer and the property was re-sold. The court provided Sheehy with some handy tips:

  • – Where sellers hold the property as joint tenants, neither party can perform the contract without the other;
  • – As settlement could not occur on the specified date, there was an actual fundamental breach by the buyer, and the Husband was autonomously entitled to terminate; 
  • – A reasonably competent legal practitioner would have known or ascertained that the wife was not entitled to take steps to complete the contract over the objection of the former husband.

Sometimes we can’t all get along, but practitioners should do their best to try. 

Further Reading: Legal Services Commissioner v RB Sheehy [2017] QCAT 276 (Original decision); Lion White Lead Ltd v Rogers (1918) 25 CLR 533, 551; Carringville Pty Ltd v The Gatto Group Pty Ltd (2003) 11 BPR 98031

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

Do your homework before picking Bob the Builder!

Do your homework before picking Bob the Builder!
June 21, 2019 /

Often people sign building contracts without getting any legal advice or doing their due diligence. (I know my husband would have if I wasn’t a lawyer when we recently built our first home last year) Everyone assumes it is a standard contract regulated by the Queensland Building and Construction Commission (QBCC), but what about the 300 page off-the-plan contracts for land and build packages??? Answer – they often do not use the standard contract.

As recently seen in multiple reports in Sydney, newly built high-rise apartments (off-the-plan) often have more structural issues and risks than a 20-year-old home or apartment.  For example, Sydney’s Opal Tower and Mascot Apartments are only 2 of many new developments that have left owners with uninhabitable properties in the middle of a booming CBD. In the Opal Tower situation, it was recently after the statutory warranty expired that the building began to crumble, conveniently the builder and developer had gone AWOL leaving the insurer with a $3million claim for defects.

To avoid dodgy builders or developers, you can do the following: –

– Do a free QBCC license search (this will show any claims/disputes/disciplinary records) http://www.onlineservices.qbcc.qld.gov.au/OnlineLicenceSearch/VisualElements/SearchBSALicenseeContent.aspx

– Get independent pre-contractual legal advice;

                   * Do court searches on company and directors

                  * Order a full body corporate/strata disclosure (this will show all minutes of meetings,                              raised defects and financial records)

– Ensure you have seen a completed project, so you know the quality of the workmanship.

– Have an independent building inspection completed prior to handover/last progress payment or settlement.

If you are looking at building your first home or buying into an off the plan development, please call our office 07 5576 9999.

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

Sunny Side Up and a Taste of Testamentary Freedom

Sunny Side Up and a Taste of Testamentary Freedom
June 20, 2019 /

Often people sign building contracts without getting any legal advice or doing their due diligence. (I know my husband would have if I wasn’t a lawyer when we recently built our first home last year) Everyone assumes it is a standard contract regulated by the Queensland Building and Construction Commission (QBCC), but what about the 300 page off-the-plan contracts for land and build packages??? Answer – they often do not use the standard contract.

As recently seen in multiple reports in Sydney, newly built high-rise apartments (off-the-plan) often have more structural issues and risks than a 20-year-old home or apartment.  For example, Sydney’s Opal Tower and Mascot Apartments are only 2 of many new developments that have left owners with uninhabitable properties in the middle of a booming CBD. In the Opal Tower situation, it was recently after the statutory warranty expired that the building began to crumble, conveniently the builder and developer had gone AWOL leaving the insurer with a $3million claim for defects.

To avoid dodgy builders or developers, you can do the following: –

– Do a free QBCC license search (this will show any claims/disputes/disciplinary records) http://www.onlineservices.qbcc.qld.gov.au/OnlineLicenceSearch/VisualElements/SearchBSALicenseeContent.aspx

– Get independent pre-contractual legal advice;

                   * Do court searches on company and directors

                  * Order a full body corporate/strata disclosure (this will show all minutes of meetings,                              raised defects and financial records)

– Ensure you have seen a completed project, so you know the quality of the workmanship.

– Have an independent building inspection completed prior to handover/last progress payment or settlement.

If you are looking at building your first home or buying into an off the plan development, please call our office 07 5576 9999.

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