Contested Probate and Larke v Nugus
Is it law in Australia?
WITH CHRISTINE SMYTH
Last year I wrote a piece for QLS Proctor magazine on the numerous criminal provisions that apply in Qld when the elderly are abused. This news piece reports on an horrendous circumstance of abuse with the QPS laying criminal charges. I’m sure many will be monitoring this matter as it will likely have significant flow in effects for the many elderly people who are subject to abuse.
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FAKE FRIENDS ARE NOT PAID CARERS: Loophole in power of attorney laws
Once upon a time, way off in a distant land, friendship was forged through shared experiences, trust, loyalty and a bond of genuine affection. It was not something you paid for, unlike other services, that have a more salacious aspect, but I digress. The ordinary Macquarie International English Dictionary defines friend as: “…somebody emotionally close, somebody who trusts and is fond of another.” There is no statutory definition of friend of which I am aware.
Fast-forward to the new millennium, and friendship is now a popular paid service in certain cultures, for example Japan. But, “not here” you say? Yes, it is now here. With the rise of singledom, disconnected families and communities, and in particular an ageing and frail population, friendship has never been more important and increasingly difficult to obtain. This recent news article 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. While such a service may be laudable in many ways, some may argue that the service has the capacity to exploit the vulnerabilities of clients. None more so than in the elder abuse space and the coalescence of appointing an enduring power of attorney. Current power of attorney law recognises the vulnerability of our elder population. However, abuse is on the rise and our government through the passing of the Guardianship and Administration and Other Legislation Amendment Act 2019 (Qld) (“GOLA”) aims to increase protection from exploitation, as is stated through the policy objectives, the new laws are designed to “enhance safe guards for adult with impaired capacity in the guardianship system.”
In line with this objective, certain people cannot be appointed as an enduring attorney, nor be a statutory health attorney. Relevantly here, one of those exceptions is anyone who is a “paid carer” for the principal either before or after the commencement of the appointment. Under the current legislation, there are no time limits to this exception. The new Act (yet to start) attempts to broaden this protection by including a time frame prohibiting a “paid carer” from being an attorney if they held the role “paid carer” within three years of being appointed, or subsequently become a “paid carer” after the appointment.
The objects of this amendment include: “ensur[ing] unsuitable people cannot act as attorney and reduce the risk of abuse or exploitation to an adult by a person appointed under an enduring document.”
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 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 “friend”. As with the commercial world, creativity knows no bounds, nor does exploitation. It is always difficult for our parliament to keep up with the fast-paced entrepreneurial environment. Legislation can only go so far. One way concerned clients can address this gap, is to incorporate a well-crafted provision into their own power of attorney document as to the commencement and cessation of a power of attorney for any and all such service providers.
If you would like to speak to one of our experts about this, you can contact us on (07) 5576 9999.
 Second edition.
 Although there is a definition of friendly society in the Acts Interpretation Act (Qld).
 Explanatory notes, Guardianship and Administration and Other Legislation Amendment Act 2019 (Qld).
 Sched 3, s 3 – 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 the services, other than—
(i) a carer payment or other benefit received from the Commonwealth or a State for providing home care for 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.
 ss29, 59, 63 of the Powers of Attorney Act 1999, as amended by the GOLA 2019 (Qld).
 Explanatory notes, Guardianship and Administration and Other Legislation Amendment Act 2019 (Qld).
 (1977) 139 CLR 161.
From privilege to pains and trouble
“You are not obliged to accept the role of personal representative” 1 is advice I typically give my personal representative (PR) clients.
Often their response is confusion as they seek to reconcile that advice with their own sense of responsibility. On the one hand they consider the appointment a privilege, on the other they know it is a heavy responsibility which will impact their daily life.
Generally, their sense of duty to the deceased, family and friends prevails and they accept the role. Nevertheless, these days most estates carry a level of complexity not experienced by previous generations. That complexity can and does cause significant disruption to the lives of the PR.
From managing complex assets in multiple jurisdictions, to family relationships peppered with bitterness and conflict, to the prospect of litigation at every turn, in many cases actual litigation, the position of a PR is not merely time-consuming, it is a heavy burden, fraught with personal distress and great risk. It is therefore not surprising there is an increase in PRs seeking commission for their pains and trouble in the administration of an estate.
In last month’s Proctor I wrote about Chapter 15, Part 10 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) 2 in the context of estate administration disputes and the passing and filing of accounts. This month I
address the second portion of Part 10 – the law and process of applying for commission.
The law – entitlement to claim
Section 68 Succession Act 1981 (Qld) gives power to the Supreme Court to authorise the payment of commission. Although s68 is couched in discretionary terms, there is clear case authority that PRs are entitled
to the payment of commission when they have discharged their obligations and responsibilities in the administration of an estate and/or trust. 3
The award of commission is usually made with reference to the size of the estate and the ‘pains and trouble’ incurred in the estate administration by the executors; ‘pains’ applying to the responsibility and consequent worry undertaken, and ‘trouble’ covering the work done. 4
Application for commission
An application to the court for an order that commission be assessed and paid is complex and expensive. For this reason, the court recognises and encourages agreements between PRs and beneficiaries to save the costs and time of making such an application. An application can be avoided if all beneficiaries are of full age and provide their consent to the amount paid.
Where no agreement can be reached, or the beneficiaries are unable to consent because they are minors, or they lack capacity and their attorney does not consent, it may be necessary to make an application to the
court under Part 10. The mechanics of the application process are set out in rules 657C to 657F UCPR.
Rule 657C identifies the right of a trustee 5 of an estate to make an application for commission. It itemises the information that must be deposed to in an affidavit and filed in support of the application.
Rule 657E outlines the matters that the court may take into account, which includes any estate account assessment.
Many practitioners would be aware that it is customary for the courts to allow commission as a percentage of entries in the estate accounts. However, application of a percentage rate does not govern the performance of the task when assessing the quantum of executors’ commission – it simply provides guidance. On this point, the New South Wales Supreme Court recently said: 6
“To focus unduly on the application ofpercentage rates that might be perceived to be those that have been, or should be, ‘ordinarily’ or ‘usually’ applied is an invitation to error. They can be a useful guide to decision making, and their utility is not to be discounted because of a need to adapt them to the facts of the particular case, but they are no more than a guide…
“…If and to the extent that reference is made to ‘ordinary’ or ‘usual’ rates, as a compendious way of referring to
accumulated experience, care needs to be taken to place that reference in the context of a determination of what is ‘just and equitable’ for the executor’s ‘pains and trouble’. Whatever intermediate calculations are made by reference to the categories, an assessment of remuneration that is ‘just and reasonable’ requires the ultimate, resultant dollar amount to be weighed in the balance…
“…The concept of a ‘just and reasonable allowance’ likewise counsels caution against an application of standards of reasonableness that might be applied in other areas of law, such as on a quantum meruit claim (a claim of right) at common law. In the application of the court’s probate and equitable jurisdiction, discretionary in character, regard must be had to a range of factors (including the summary nature of the jurisdiction, the size and nature of the deceased’s estate, the terms of any will and the rights of beneficiaries) rather than taking refuge in standard rates of remuneration that may guide a common law claim in contract or restitution.”
The task remains one of assessment of an allowance for the “pains and trouble” taken by a PR who applies for commission. Essentially, the court will place a value on the pains and trouble of the PR by considering the facts of each particular case, the work done by the PR, and what is a reasonable allowance for that work with reference to the estate accounts.
For these reasons, quantification of an allowance for commission is notoriously difficult. Accordingly, while not necessary a court may under r657D require the applicant to pass and file estate accounts 7 before determining commission.
There is an old adage: Those who fail to plan, plan to fail. To that end, if commission is granted, either by the court or by agreement, it is important to advise PRs from the outset to seek independent financial advice about
the prospect of receiving commission, as it is typically treated as taxable income in the hands of the PR.8
If the PR is in receipt of a government benefit, the benefit may be affected. Alternatively, if the PR is a high-income individual, the award of commission may affect their taxation rate. Note also that s114 of the Trusts Act 1973 (Qld) provides that executor’s commission is deemed to be a testamentary expense.
For these reasons, but more particularly for ensuring evidence gathering to support r657E factors, practitioners are recommended to advise their PR clients about commission at the outset. That way their client may properly plan whether they will seek commission. Conversely, if you are acting for beneficiaries, advising them of the
prospect of commission can equally prepare and forearm them for the process.
1 ‘Personal representative’ is defined in Acts Interpretation Act 1954 – Schedule 1: “[P]ersonal representative of a deceased individual means the executor (whether original or by representation) or administrator of the individual’s estate.” See also s5 Succession Act 1981 (Qld) where it is defined to mean “the executor, original or by representation, or administrator of a deceased person”.
2 Referred to in this article as Part 10.
3 RS Geddes, CJ Rowland and P Studdert, Will, Probate and Administration Law in New South Wales (1996) [86.02]; see also Re Lack  2 Qd R 613, 614 (McPherson J); and Section 101 of the Trusts Act 1973 (Qld), which provides that the court may authorise a person to charge remuneration for their personal services in carrying out their trustee’s duties.
4 In Re Allan McLean (Deceased)  31 NZLR 139 at 144; Luck v Fogaerty (Unreported, Supreme Court of Tasmania, Zeeman J, 22 March, 1996) 2; Re Gowing: Application for Executor’s Commission  NSWSC 247 at para 77.
5 See r644, which sets out certain definitions particular to this part. There, ‘trustee’ includes a personal representative of a deceased individual.
6 Re Estate Gowing; Application for Executor’s Commission  NSWSC 247 at paragraphs 54, 61 and 62.
7 Refer to the April 2019 edition of Proctor (pp38-39) for guidance on the process of filing and passing estate accounts.
8 See Australian Taxation Office interpretive decision 2014/44.
Christine Smyth is a former President of Queensland Law Society, a QLS Accredited Specialist (succession
law) – Qld, 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, member of the QLS Specialist Accreditation Board, Proctor Editorial Committee, QLS Succession Law Committee and STEP, and an Associate Member of the Tax Institute.
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The decision of Legal Services Commissioner v Ronald Aubrey Lawson (LCR v Lawson) is sad, because it involves a practitioner of decades standing with no prior disciplinary matters who is now at the end of his career with a blemished record. Clients frequently ask why legal advice is so expensive, and why do lawyers have so many processes and procedures for an apparently simple matter? It is because we have duties and responsibilities that are so comprehensive, we are not permitted to cut corners. If we do cut corners, then the consequences are devastating both to our clients, their families and ourselves.
In the decision of LCR v Lawson, the solicitor took instructions for a will from the son of the testator, who had an interest in the will. The solicitor did not personally attend on the testator. Taking instructions directly from a testator is required, and standard practice, especially where the intermediary giving the will instructions takes a benefit. It is surprising the number of people who are offended by this requirement in day to day practice. Here however, the testator could not attend the solicitor’s office because of his age and frailty and the solicitor himself could not attend on the testator at his nursing home because the solicitor suffered physical incapacity from a recent injury. The solicitor drew the will on the instructions of the testator’s son, then sent his two staff members to the facility where the testator was residing for execution of the will. The staff members read the will to the testator. The testator himself appeared to read the will. The testator noted some typos. Then, the testator signed the will.
Legal Services Commissioner v Ronald Aubrey Lawson at -:
“In the view of the Tribunal, the conduct of the practitioner in this case, in drafting and presenting for execution a will on which instructions had been provided only by an intermediary and without verifying those instructions with the testator, was conduct which fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.
That is highlighted in this case by the fact that the intermediary giving these instructions was a person who not only had an interest under the will, but that the instructions that he gave were instructions which would have operated both to increase the share of his take as a beneficiary under the will, and also exclude another beneficiary completely from benefit under the will. Those circumstances alone should have been sufficient to ring the alarm bells for the respondent as to the need to obtain verification of those instructions from the testator. As already noted, that could have been done with a phone call.”
A link to the full case can be found here: https://archive.sclqld.org.au/qjudgment/2019/QCAT19-100.pdf
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 Legal Services Commissioner v Ronald Aubrey Lawson  QCAT 100
I AM CURIOUS – Why is it still the case some sectors of our community see elder abuse in the same terms we once saw domestic violence as a “family matter”. Queensland has criminal laws for this type of wrong doing:- In R v Naidu  QCA 130 financial abuse was prosecuted as fraud. In that case, the appellant was convicted at trial of two counts of fraud for receiving over $370,000 by way of gifts from the victim who was aged in his late 70s and suffered from dementia. An appeal against the conviction was dismissed. #Fraud – It is an offence for someone to use another person’s property by dishonestly applying it to their own benefit. Section 408C of the Criminal Code 1899 (Qld). In Queensland, the penalty for breach of this provision is five – 20 years imprisonment depending on the value. #Stealing – Theft applies in the circumstances of elder abuse. Section 398 of the Criminal Code 1899 (Qld). A basic definition of theft is: “A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it”. #elderabuse #crime #powerofattorney #robbinswatson #advice
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Griffith Uni Women in Law Equity Breakfast Robbins Watson is proud of our Christine Smyth who had the pleasure and privilege to present with other talented and accomplished female lawyers this morning, at the annual Griffith Uni Women in Law Equity Breakfast.
The theme being Balance For Better in the Legal Profession encouraged much debate and discussion, with the delegates being the beneficiaries of the collective wisdom of a diverse and talented group of female lawyers.
#balanceforbetter #GriffithUni #Womeninlaw
The breakdown of a relationship is always difficult and stressful even in the most amicable of separations. When family and domestic violence is present, leaving the relationship is the time when those abused are most at risk of harm. Frequently the abusive behaviours carry on long after the parties have left the relationship, particularly when children are involved, which require a parent to have an ongoing connection with their abuser for years to come.
Although individual state and territory courts have addressed the impact and safety of family and domestic violence victims with increasingly stringent protection orders, the issue has not been given the same the attention by the Commonwealth Courts in family law proceedings until now. The release of the Court’s new Family Violence Plan is a welcome step in the right direction by acknowledging the close connection between family breakdowns, violence, and the continuing impact it has on both adults and children alike.
With violence against women costing an estimated $22 billion a year to the Australian economy, increased action is essential as this figure will only continue to rise exponentially if not addressed. The emphasis of the Family Violence Plan is to ensure a practical, effective and achievable priority in the Courts’ protection of children and their families from family violence and its associated harms, both in and out of court.
Separation is seldom the end of abuse. Perpetrators often use court proceedings as a way to further control and harass their victims throughout the progression of their matter in the Federal Circuit Court and Family Court. By engaging in a multifaceted approach, the Court hopes to effectively address and better understand the cause, dynamics and effects of family and domestic violence in family law proceedings.
The Plan builds on and updates the Family Violence Plan 2014-16 by providing a restructured continuing commitment to addressing family violence in all areas of the court’s operation. The Plan sets out three priority areas: family violence; safety at court; and information and communication. Each area has a number of defined goals, identified actions and require regular or ongoing activity.
Within the Court itself, the attention of protection from family violence starts with a review and update of the Family Violence Best Practice Principles, a document designed to assist judges, legal practitioners and litigants to better understand legal requirements in matters which family violence is alleged. The Principles are to be used in all areas of the operational and administrative processes.
Ongoing training and development of staff is to be facilitated to enhance awareness and capability in addressing family violence issues including an understanding of issues unique to particular communities. Inter-agency cooperation, collaboration and information sharing is emphasised between the Court, and outside resources including state and territory courts, police and child protection agencies about existing family law orders.
Every aspect of the Court is to be evaluated and monitored. The internal workings, processes and practices of Courts, even the physical layout of each court building, is to be addressed to ensure that the Court is a safe space for all users.
Those users who are at risk of experiencing family violence will have ready access to information about how the courts can assist and effective referrals where they can seek help and counselling. Intergenerational education on what qualifies as abusive behaviour is critical. Victims often are exposed to abuse throughout their lives and this is their normal. Learning to recognised what is acceptable behaviour in the home and what a respectful relationship should look like may assist in breaking the cycle of abuse.
The Court realises that although all stakeholders may have a common goal, in the past the approach has not been a coordinated one. Without collaboration, gaping holes will continue to remain in the system leaving those most at risk, especially children, to fall through the cracks.
To their credit, the Courts commitment has not only recognised those faults but has established achievable goals to promote overall safety by considering the issues and effects of family and domestic violence in family law proceedings. If successful, this shift in focus will be reflected in the family law orders being made by the Court and eventuate in the long-term safety of children and their families.
If you or someone you know is affected by Family and Domestic Violence please call our Family and Domestic Violence expert Linda Miller for a confidential consultation on (07) 5576 9999.
If you want to download a copy of this article, please click here!
 (Source:- KPMG. (2016). The cost of violence against women and their children in Australia. Canberra: Department of Social Services. Retrieved from: https://bit.ly/2wzVWxC)
Do you have questions about wills, inheritance, or enduring powers of attorney?
Then tune in next Tuesday for our podcast with ABC Radio Southern Queensland where our expert Christine Smyth discusses enduring powers of attorney, the pros and cons of Will-Kits, post-it-note Wills, as well as estate challenges and administration matters.