For many people, a new year signifies a reset button and a chance to put a stronger focus on health, finances, goals, and aspirations for the year ahead. “Getting organised” is reported to be one of the top 10 new year’s resolutions on everyone’s list, especially after the uncertainty caused by COVID-19. Attwood Marshall Lawyers Wills and Estates Partner, Angela Harry, explains how we can help you get your most important legal affairs in order, giving you peace of mind for the year ahead.
No better time of year to get your legal affairs in order
Making sure your future is secure, your loved ones are looked after, and your assets protected can be something you can tick off your new years’ resolution list quickly by engaging an experienced Estate Planning Lawyer who can help you get organised.
There’s no need to kick this task down the road any longer, the process is simple, and you can visit any one of our conveniently located offices to sign your documents once they are ready. Then, that is one more thing you can check off your list!
Whether the new year has seen changes to your relationships, family dynamics, business affairs, investments, or health, ensuring your Will and Enduring Power of Attorney documents reflect your wishes and your current circumstances is imperative. The new year can serve as a timely reminder that you need to regularly review your Will and other legal documents you may have put in place prior to 2021.
To get you started, follow these simple estate planning steps:
Step 1. Dust off your Will
Making a Will isn’t a “set and forget” exercise. It is important to review your Will every year to ensure that it reflects your intentions and everchanging circumstances. This is the time to pull it out of the draw, dust it off, and ensure what is documented is still up to date.
For those who do not have a Will – whether you have been kicking the task down the road or simply feel you don’t need one, here are just a few reasons why you should get organised (there are plenty more in addition to this list!):

Having a Will ensures your assets end up with your intended beneficiaries, rather than passing under a statutory formula;
No matter how big or small your estate may be, you are never too “young” or too “old” to make a Will. It is recommended that everyone over the age of 18 should have a Will;
Contrary to popular belief, your estate does not automatically go to your family after you die if you do not have a Will;
Failing to have an up-to-date Will can be very costly for your loved ones you leave behind, both financially and emotionally. Even if you do not feel it is necessary for yourself, think about the impact it may have on your loved ones after you are gone;
Your grandchildren (if applicable) could miss out. When no beneficiaries have been specified, the law of intestacy provides assets pass to your surviving spouse and children, often leaving out the next generation. Having a Will means you can have your say and allocate your assets to go to your grandchildren if you wish;
If you have minor children, you cannot name a guardian for them if you do not have a Will. Who you want to nominate as your children’s guardian may not be who is chosen after you are gone. If neither parent is alive, the grandparents are the natural guardians of minor children, but it may be up to a court to decide which set of grandparents become your children’s guardian. Who is chosen for your children may not be who you envisaged to be their guardian!
We’re currently offering 50% off a simple Will and Enduring Power of Attorney package! So, if you are still feeling the aftereffects of Christmas shopping, take advantage of these great savings.

Read more: Don’t get complacent about your Will – now’s the time to get it done!
Step 2. Appoint an attorney
Appointing an attorney is one of the most crucial decisions you may ever make in your lifetime. Having an Enduring Power of Attorney ensures that if you lose capacity, whether it be due to an unforeseen accident or injury, or if you suffer from a progressive disease that impairs your memory and cognitive function, such as dementia or Alzheimer’s, then your nominated attorney will have the power to manage your affairs and make decisions for you on your behalf. Your attorney can make financial decisions, which can include preparing a tax return, operating your bank accounts, selling properties you own or taking out a lease, to name a few. An attorney can also make health-related decisions such as granting consent to give or refuse medication, deciding on your living arrangements and helping choose the health services you receive.
In November 2020, changes to Enduring Powers of Attorney laws came into effect in Queensland. What this may mean is that reviewing your Enduring Power of Attorney documents is more important than ever before. It is essential that your documents reflect your wishes and that they are still valid now that changes to legislation have been rolled out.
You do not want to be left in a situation where you have an unforeseen accident or illness, lose capacity, and your attorneys who you have appointed go to step in to make decisions but are turned away because your documents are no longer valid.
It is important to note that the new Enduring Power of Attorney forms impact what types of questions you will need to answer and consequently the responsibilities of the attorneys you appoint.
By reviewing your documents, you will have an opportunity to set out specific views, wishes and preferences, which may have changed since you last drafted these documents. The additional information collected in the new Enduring Power of Attorney forms will provide your attorneys with a more comprehensive outline of your intentions. These important details can assist your attorney when making critical decisions on your behalf.
Read more: Appointing Guardians and Attorneys – what can happen if you make the wrong choice
Step 3. New South Wales residents, it’s time to appoint your Guardian and Attorney (Queenslanders, you can skip this step!)
In New South Wales, there are two documents that can appoint people to manage your affairs, in the same way that Queensland has Enduring Power of Attorney. In NSW, an Enduring Power of Attorney (EPOA) only deals with financial matters, so you will also need to appoint an Enduring Guardian who can then deal with your health and lifestyle matters. These documents work in the same way Queensland’s Enduring Power of Attorney documents do, in that they come into play during your lifetime in the event you lose capacity or are unable to make decisions for yourself. Should the time come you need someone to step in and make decisions on your behalf, you can have peace of mind that you have granted that power to someone that you trust to do what is in your best interests.
You may choose to appoint the same person across both documents to make all your decisions for you, or you can choose to appoint different attorneys to act for health and financial matters.
Once you have your trusted attorney sorted and your documents are up to date, you can have peace of mind in knowing, legally speaking, that someone will always have your back!
Step 4. Consider your superannuation as part of your estate plan
It’s very easy to forget about your superannuation. However, your superannuation may be one of you most valuable assets! Australians hold most of their wealth in their super. It is a common misconception many people have that they can gift their superannuation to a nominated beneficiary in their Will. This is simply not the case, so even though you may have a Will, you may not have dealt with one of your most valuable assets.
To ensure your superannuation contributions and any life insurance (death benefits) go to the beneficiaries you wish to benefit from these assets, you need to complete a Death Benefit Nomination.
A death benefit nomination is a notice that the member gives to the superannuation fund’s trustee regarding the payment of the member’s benefits on death. There are a few different types of death benefit arrangements that can be made. These include:

Automatic reversionary pension – a pension that is established by the still living fund member. It reverts that member’s benefits to an income stream dependent on death. In most instances it is a pension for the spouse.
Binding Death Benefit Nomination – the trustee must pay the death benefit as nominated.
Non-Binding Nomination – the trustee has the discretion to follow the stated wishes of the member or direct the entitlements to another person or the estate.
Non-lapsing binding nomination – a request by you to the trustee to pay a death benefit to the person/s you nominate which has no expiry date.
No nomination – if you don’t make a nomination the trustee will pay your benefit to your estate or use its discretion to determine who is eligible to receive it.

Death benefit nominations can be an important tool in succession planning. As you can see, when it comes to Superannuation, there is a lot to consider. It is important to discuss your unique intentions for your estate with an experienced Estate Planning Lawyer so that your estate plan can be completed to reflect your wishes and reduce any risk of anyone making a claim on your estate after you are gone.
Our team can help you understand what documents to put in place and determine if your circumstances require a Death Benefit Nomination in order to protect your assets.
Get organised and save
We are excited to announce the extension of our 50% OFF Will and Enduring Power of Attorney Package promotion, which will be offered until Monday 1st March 2021. This offer also applies to the NSW equivalent of an EPOA and an Enduring Guardian. We want to give everyone the opportunity to get their most important legal documents updated as the new year kicks off.
As a leading estate planning firm, Attwood Marshall Lawyers take a holistic approach to your estate planning needs. Your documents will be prepared by an experienced lawyer who practices exclusively in the area of Wills and estate planning.

Book your appointment with our friendly team by contacting Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, mobile 0423 772 555 or email [email protected] and be sure to mention the 50% off promotion! Get in quickly – the offer expires on 1st March 2021. You can make an appointment at any of our conveniently located offices at Robina Town Centre, Coolangatta or Kingscliff.
The post Your Estate Planning Checklist to help you get organised in 2021 appeared first on Attwood Marshall.

Attwood Marshall Lawyers Estate Litigation Senior Associate April Kennedy continues her discussion about the common misconceptions people have about contesting Wills and gives you ‘just the facts’ in her recent Law Talks interview on Radio 4CRB.

Attwood Marshall Lawyers · Part 2 – Estate Litigation – Just the facts
Fact 1: Contesting a Will is not immoral – that’s the Law!
For all the reasons that exist which may bring someone to contest a Will, there are equally a number of reasons that deter people from contesting a Will, even if they have a legal right to seek further provision from an estate.
Some people choose not to contest a Will because they feel they will face criticism from friends and family based on the negative connotations that surround this area of law.
As previously discussed in “Part 1: 10 common misconceptions about contesting Wills explained”, there are many reasons why a person might choose to contest a Will. It doesn’t make that person greedy or immoral; they are simply exercising their legal rights. In many cases, financial need is one of the biggest drivers for claims against the estate. This is especially relevant when you have a number of adult children with differing financial circumstances. It cuts both ways – we have seen very wealthy siblings contest a Will out of spite or jealousy because a less fortunate brother or sister has been left a larger percentage of the estate in the Will. Likewise, leaving an estate equally to adult children with differing circumstances can be unfair to a sibling with a disability or illness that has left them struggling financially.
Fact 2: Success rates are usually high for family provision claims
There can be a misconception from many people feeling that their claim is “a long shot”, but in actual fact most family provision claims have a high rate of success (depending on the facts and circumstances of their case, of course).
A person who is eligible under the Succession Act can bring a claim against the estate, and provided their circumstances warrant the making of the claim, they can expect to reach a favourable outcome.
Studies undertaken by the University of Queensland in 2015 found that:

74% of family provision claims by family were successful (by children or partners, including ex-partners).
When a Will is contested, there is a high rate of success, whether through the Court or through mediation.
Will disputes are most commonly driven by both exclusion from the Will and significant disparity in distribution.

Fact 3: Children are the most common claimants in this area of law
Adult children are usually the most common claimants. This can stem from fragile family dynamics over decades and generations. Childhood issues tend to bubble underneath the surface, only to explode as the years go by.
Adult children are followed closely by the surviving spouse (whether that is the wife, husband or de facto). This is especially the case in circumstances where there are blended families or several marriages over that person’s lifetime.
Family provision claims aren’t just limited to children and spouses. There are many persons who fall under the eligibility criteria including:

adopted children;
stepchildren & de facto stepchildren;
foster children;
grandchildren;
ex-spouses; as well as
live-in carers.

Fact 4: Claims against the estate are common in blended families
It may not always be the case; however, it is certainly more common for Will contests to happen within blended families, or ‘Brady Bunch families”, as they are sometimes called.
For example, a husband (who has children of his own to a previous marriage) might make a Will leaving everything to the second wife entrusting her with “doing the right thing” and providing for his children with what she inherits from him. Or, on the other hand, the husband might leave everything to his children trusting they will look after his wife. This this doesn’t always happen, with the surviving spouse changing their Will shortly after the death to exclude the deceased husband’s children. This is when litigation ensues.
Fact 5: The estate is responsible for costs of litigation when someone makes a claim
The person bringing the claim against an estate is not automatically entitled to have their costs paid from the estate. However, a lot of firms take on cases on a ‘no-win no-fee’ basis if the case has good prospects of success. If the claim is successful, then the applicant will have their costs (or part of their costs) paid from the estate.
The general rule of thumb for payment of legal costs is that if the claimant succeeds with their case, they are entitled to payment of their reasonable legal costs from the estate.
However, if the claimant fails in their action, the Courts are more likely to consider ordering that the unsuccessful claimant pay the costs of the estate. This is usually unenforceable as most claimants do not have any assets.
Fact 6: The Executors must act reasonably to ensure their costs are paid from the estate
The Executors (i.e. the person defending the claim) are entitled to have their costs paid out of the estate. However, the Executors have a duty to act reasonably, consider the merit of each claim and attempt to resolve the matter at an early stage. There are cases where the Court has imposed costs capping orders on the Executor’s costs because they have acted unreasonably and gone out of their way to purposefully cause delays and withhold information and documentation from the applicant and their solicitors. A costs capping order means that the Executors are only allowed to pay a certain amount of their costs from the estate, with the balance to be paid by the Executors from their own pocket (which can be tens of thousands of dollars).
Read more: Defending a contested Will: your role as Executor
Fact 7: If someone promises to gift another person something of value in their Will, but their final Will does not reflect the promise made, in some circumstances their estate can be bound to that promise
The ‘deathbed promise: A classic example of this is when a person is terminally ill, perhaps only has days or hours left to live, and they promise items or property of value to family members. Generally, a person cannot rely on a deathbed promise to claim their stake over that property. It needs to be documented or formalised in some way.
Testamentary or promissory estoppel: This is an emerging area of law in estate litigation and is quite different to a deathbed promise. Promises made during your lifetime may very well bind your estate even after you die.  There are certain elements that need to be satisfied for an action like this to be successful.
Read more: Broken promises – making a claim when a promise hasn’t materialised in someone’s Will
These types of cases are more prevalent in generational farming families and cases involving disputes over family farms. Generally, where a child works on their parents’ farm for years for little or no remuneration, in reliance upon promises made by the parents that they will eventually inherit the farm.
Fact 8: Not all estate disputes end up in Court
The idea of a lengthy and expensive court battle is one of the main deterrents for anyone considering challenging an estate. However, it is a common misconception that estate disputes always end up being fought in court.
Only a small percentage of cases end up in court, and it is estimated that approximately 85% of cases are settled at mediation.
Mediation is compulsory in this area of law.
Mediation is a common and very successful method to resolve Will contests. A mediation can be held as soon as the parties and the Mediator agree on a time and place, making it much quicker than going through court proceedings.
Mediation is also confidential, so only the parties involved in the dispute, the mediator and lawyers need to attend.
This often minimises the emotional impact on family and friends, as well as keeping costs low.
Mediations are increasingly popular for a number of reasons, including the fact you have greater control over the proceedings as you maintain ownership of the issues and participate in the resolution, rather than having a judge make that decision for you.
Will disputes put a huge strain on family relations and litigation can add to this bitterness. As mediation saves time and money, it can also sometimes reduce the stress and tension between families, allowing them to move on sooner.
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers have one of the largest and most experienced estate litigation teams in Queensland, with senior lawyers who practice exclusively in this complex area of law.
We are here to help you get what you are fairly and legally entitled to or to uphold the wishes of the deceased if you are an executor in an estate.
Most estate litigation cases are accepted on a ‘no win no fee’ or deferred payment basis. There are no costs required upfront to commence your claim (subject to our determination of you having reasonable prospects of success).
To discuss any disputes over Wills and estates, contact Estate Litigation Department Manager, Amanda Heather, on 1800 621 071, direct line 07 5506 8245 or email [email protected]. You can visit our experienced team at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney or Melbourne.
The post Part 2: Estate Litigation – just the facts Ma’am appeared first on Attwood Marshall.

The temporary insolvency relief measures for businesses implemented by the Federal Government to protect companies, directors and individuals financially impacted by the pandemic, expired on 31 December 2020. With COVID-19 and the economic impact of the pandemic still looming, Attwood Marshall Lawyers Commercial Litigation Senior Associate and Law Society Accredited Specialist in Dispute Resolution, Charles Lethbridge, discusses insolvent trading laws, the up-to-date situation with creditor’s statutory demands and bankruptcy notices, and what business owners need to know in 2021.
 
What were the temporary insolvency relief measures?
The temporary insolvency relief measures which were introduced in March 2020 increased the monetary threshold that people or businesses owed money  could issue a creditor’s statutory demand on a company (from 2k to 20k) and the time companies had to respond to statutory demands they received (21 days to 6 months). The monetary threshold that creditors could issue a bankruptcy notice (5k to 20k) and the time individuals had to respond to a bankruptcy notice (21 days to 6 months) were also implemented.
Additional measures to provide temporary relief from company directors personal liability for a company trading while insolvent were also activated.
Were the temporary insolvency relief measures for businesses shielding the inevitable?
ASIC data on insolvency statistics showed the number of companies going into administration during the pandemic hit record lows when compared to the previous year, despite lockdown directives.
With an understanding that the temporary measures would only assist businesses for so long, experts expected that insolvencies would skyrocket in 2021 once the financial relief concluded. However, some experts now believe that the number of insolvencies may not be as dramatic as first predicted. Despite the change in prediction, it is expected that 2021 will still bring plenty of hardship and heartbreak for many businesses as COVID-19 continues to deliver financial uncertainty.
Directors Protection from Insolvent Trading in 2021
Company directors take note; if you continue to trade past the 31 December 2020 deadline, you will no longer have protection against insolvent trading nor will you have any retrospective protection.
To be clear, directors trading an insolvent company past 31 December 2020 will be exposed to the Federal Insolvent Trading Laws including throughout any period the company was insolvent during March 2020 to December 2020, if the company later ends up in liquidation.
Directors will only be afforded protection if they appointed an external administrator to the company prior to 31 December 2020.
Changes to Bankruptcy Notices and Statutory Demand Procedures from 1 January 2021
The time frame to respond to bankruptcy notices has returned to 21 days (which was previously set to 6 months under the temporary relief provisions).
The threshold amount to issue a bankruptcy notice has reduced from the temporary $20,000 to $10,000, whereas prior to the temporary relief measures, it was $5,000.
It appears the new $10,000 threshold will remain permanently. That means that a creditor can only issue a bankruptcy notice in respect of a judgment debt if it is equal to or exceeds $10,000. This has afforded ongoing protection for debtors.
In relation to creditor’s statutory demands, the time frame to respond has returned to 21 days (which was previously set to 6 months under the temporary relief provisions). The threshold amount to issue a creditor’s statutory demand has reduced from $20,000 to $2000.
Are you concerned about your business?
The temporary relief measures in 2020 successfully stopped creditors in their tracks from issuing statutory demands and bankruptcy notices to struggling businesses. This was mainly due to the prohibitions which the relief measures imposed on creditors. With those burdens now removed, our team have received a record number of enquiries in the new year.  Creditors are taking full advantage of the ‘return to normal’ and pursuing debts. Our experienced Commercial Litigation team are geared up to help you on either side of the equation now that the restrictions have been lifted.
We take a tactical approach to assist businesses faced with these difficult matters. With a history spanning more than 7 decades assisting individuals and small to medium sized businesses since World War II, we have a deep understanding of the processes and ramifications associated with creditor’s statutory demands and bankruptcy notices.
Conversely, in conjunction with insolvency practitioners who operate in line with our core values, our lawyers assist clients on the verge of liquidation or bankruptcy. Our Commercial Litigation team are driven to make the process as stress-free, affordable and as liberating as possible. If you have received a creditor’s statutory demand or a bankruptcy notice you should seek legal advice immediately.
Read more: How businesses can recover debts during COVID-19
Read more: Are you facing bankruptcy or liquidation? It doesn’t need to be a stressful process
At Attwood Marshall Lawyers, we specialise in eliminating stress from peoples’ lives, in fact that is our primary goal – we want to help take the weight off your shoulders. If you need an experienced team on your side to help navigate business and commercial matters, we can guide you and your business towards a successful outcome. Contact Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, mobile 0425 260 837 or email [email protected]
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Attwood Marshall Lawyers Estate Litigation Senior Associate, April Kennedy discusses some of the issues involving contesting a Will, Wills and estate disputes generally, and how complex this area of law can be with Steve Stuttle on Radio 4CRB.

Attwood Marshall Lawyers · Law Talks April Kennedy – Part 1 – Estate Litigation Myths
Introduction – Understanding estate disputes – Part 1
For the most part, many estate disputes can be avoided if you have proper estate planning legal advice with a qualified and experienced lawyer or law firm in this area of law.
This is where so many people get it wrong – by choosing not to make a Will or simply drafting a Will themselves without obtaining the right legal advice. Your estate can be left wide open to challenges down the track if you do not obtain assistance from an experienced estate planning lawyer. It is very important you do your homework and consult a law firm that is truly experienced in this area of law – don’t think that every lawyer can draft a proper Will and give proper advice! Getting a simple Will done cheaply with a lawyer does not ensure your estate will be free of disputes. This is a very complex and contentious area of law and there are plenty of widespread myths when it comes to estate litigation.
Misconception 1: Making a Will is expensive; I can just make one myself
Most people think that making a Will is expensive, so they’d rather do it themselves, or go to the post office and buy a Will Kit (DIY Will). In reality, a properly made Will by a qualified and experienced lawyer will cost less than most people realise and can ensure your estate is properly protected.
DIY Wills are very rarely made properly. They can cost tens of thousands of dollars to rectify and it is the grieving family who bears the emotional and financial brunt of this poor decision making.
The costs of a Will are determined by your individual circumstances and how complicated (or simple) your family dynamics are. For example, a couple who are on their second marriage and both have children from their first marriage will need far more detail in their Wills with possible life tenancies and trusts. Whatever the case, the relative cost of obtaining proper advice from lawyers experienced in this area is very modest in comparison to the usual insurance premiums we pay without question.
Read more: Estate Planning 101
Misconception 2: Anyone is entitled to see a deceased person’s Will
Unlike what you see in US TV shows, in Australia there is no legal requirement or customary practice to hold a ‘reading of the Will’. Our laws set out categories of people who are legally entitled to a copy of the Will.
Those entitled are:

any person named in the Will;
any person referred to or named in an earlier Will as a beneficiary;
the spouse or domestic partner of the deceased at the time of their death;
a parent, guardian or child of the deceased; or
any person who would be entitled to a share of the estate if the deceased died intestate (without a Will).

If you fall into one of these categories, you can request a copy of the most recent Will or previous Wills of the deceased from the person in possession of the Will.
Read more: How to obtain a copy of the Will
Misconception 3: An Executor has the right to decide how the assets are distributed
An Executor does not have the power to change the way your estate is distributed in your Will.
The Executor’s role is to properly administer the deceased’s estate in accordance with the terms of the Will and in line with the deceased’s wishes. An Executor cannot interfere with the assets to the detriment of the beneficiaries, otherwise the Executor would be faced with very serious charges.
Read more: Executors behaving badly
Misconception 4: If my parents disinherit me, I have no rights to claim on their estate
One of the common things we hear children say is;
“I have no relationship with my parents, so I assume I am not entitled to any of their estate.”
Under the respective state and territory Succession Law in Australia, all children of the deceased are entitled to make a family provision claim on their parents’ estate. This includes biological, adopted and stepchildren in most states. Estrangement is always considered; however, it does not automatically preclude a person from claiming on their parents’ estate.
Read more: Estrangement: Are parents obliged to provide for an estranged child in their Will?
Misconception 5: Adopted children can claim on their biological parents’ estate
This is an interesting issue and something not many people are aware of. A child that was given up for adoption at birth, or shortly after, can claim on their adoptive parent’s estate, but they cannot claim on their biological parent’s estate. This is because their legal relationship with their biological parent was severed upon adoption.
In many cases, an adopted child and the biological parent reconnect later in life and commence a parent/child relationship. However, despite that renewed relationship, under the Succession Laws, that child is not formally acknowledged as a ‘child’ and therefore is not considered an eligible person.
However, in certain states an adopted child may be eligible to claim on the estate under another broader category in very limited circumstances.
That child’s right to inherit from a biological parent may continue if:

the adoption occurred years after the child’s birth;
after adoption, the child re-established a relationship with the biological parent and became financially dependent on him or her.

If you are an adopted child, or the parent, guardian or representative of an adopted child and are concerned about inheritance rights, it is important to discuss your matter with an experienced wills and estates lawyer as soon as possible.
Misconception 6: There are simple ways to disinherit a child I do not wish to leave provision for
If a parent or grandparent does not have a good relationship with a child and want to disinherit them, they often make some common mistakes to avoid providing for that child in their Will.
Some of the common mistakes often made include:

A parent giving instructions to their remaining family members not to inform the disinherited child when they have died, hoping that the time limit to make a claim on the estate will expire;
Giving away large sums of money to family before they die in an effort to reduce the size of their estate so there is nothing, or very little, to claim on;
Transferring properties into their intended beneficiary’s name or into joint names, to remove it from their estate.

In some states, there are claw back provisions. This means that if assets have been removed from the estate with the purpose of reducing its value to avoid a claim by a disinherited child or person, then the Court can claw back those assets for family provision proceedings after death. This effectively reinstates the estate’s true value.
Misconception 7: If I leave a small sum of money to a child, it will be enough to stop them from contesting my Will
This is most certainly a myth. The classic:
“If I leave $1 to my son/daughter, then they can’t make a claim on my estate”.
Leaving a nominal amount to a person who is entitled to make a claim on your estate can do the opposite of what you expect. It can cause an inflammatory response and it is often the catalyst for that person to go ahead and take legal action. It is important to seek advice from an experienced estate planning lawyer to discuss the proper strategy to mitigate the risk of future claims.
Misconception 8: A parent must leave their estate evenly between all children
There is no set rule that children must inherit an estate in even shares. As a parent, it may seem like the right thing to do but it is not always so straightforward. It really depends upon the circumstances of each of the children and the relationships formed between parent and child.
Everyone’s situation is different. A parent may choose to divide an estate unevenly for several reasons, including:

if one child is more financially stable than another;
if one child has secure employment and another is unemployed;
if one child has displayed poor financial judgement;
if one child has had several bad marriages or relationships and the parent is concerned about protecting family assets;
if one child suffers from a disability or chronic disease;
if money has already been loaned to one child during their lifetime.

If the estate is divided equally then, it may not be fair to all children.  A child who is disadvantaged may have grounds to seek further provision from the estate. Consideration needs to be given as to what is ‘adequate’ provision for all of the children in light of their circumstances. This can be difficult because people’s circumstances can change rapidly.
Misconception 9: I don’t need a Will; my family knows what I want and can sort everything out after I die
Unfortunately, this is a very common misconception. People without a Will often leave a mess for their family to clean up after they pass away. Without a Will, your family members will be unable to deal with third parties including banks, Centrelink, ATO, superannuation companies, government institutions or pay for debts from the estate. If a person does not have a Will; it is incredibly difficult and costly for the family to administer the estate.
Also, when a person dies without making a valid Will, then their estate is distributed in accordance with the rules of intestacy.
The rules of intestacy are a statutory formula which is set out in each State and Territory’s Succession Laws. This formula essentially predetermines the categories of persons who will inherit from your estate and what share or percentage they will receive.
Misconception 10: The only people that contest a Will are those who are trying to ‘rort’ the system
The general public attitude towards anyone contesting a Will is usually negative. A person who intends to contest a Will is often treated like they are ‘rorting’ the system, and they should just get what they’re given or accept that they have been given less or nothing at all.
However, the laws are designed to assist people who have not been adequately provided for.
There are many reasons why a person might contest a Will. These include:

The Will may not have been updated to reflect current relationships and circumstances. For example: the Will maker may have had a falling out with someone many years ago, removed them from their Will and then reconnected years later. They may have forgotten to update their Will to reflect that;
With respect to estrangement – the person who made the Will (usually the parent) may have been the cause of the estrangement. Family dynamics can be tenuous, and issues from childhood may resurface in adulthood. It is important to consider the type and quality of relationship the person had with the deceased which is why the Court will look at the history of the relationship from childhood up to death;
The person is in dire financial circumstances, and the estate is large enough to warrant provision or further provision to be made. For example: the person may have had a rough life and they are living week to week, in housing commission, on a Centrelink pension and scraping the barrel to get by;
There may be suspicious circumstances around the validity of the Will and how it was executed. We find this to be very common with DIY or post office Wills. For example: there might have been a third party (a friend, acquaintance, neighbour or even a family member) who has involved themselves in the Will maker’s life and was instrumental in making a Will that (surprise, surprise!) leaves most of the estate to them;
The deceased did not have full knowledge or approval of the contents of the Will. The Will maker might have been blind or illiterate, or English may have been their second language;
The deceased did not have the necessary mental capacity to make a Will, for example they might have been suffering from dementia or Alzheimer’s.

This list is not exhaustive but gives you an idea of some of the many reasons why Wills can be challenged.
Read more: Undue influence and unconscionable conduct in Will-making
Read more: Challenging a Will based on mental capacity
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers have one of the largest and most experienced estate litigation teams in Queensland, with senior lawyers who practice exclusively in this complex area of law.
We are here to help you get what you are fairly and legally entitled to or to uphold the wishes of the deceased if you are an executor in an estate.
Most estate litigation cases are accepted on a ‘no win no fee’ or deferred payment basis. There are no costs required upfront to commence your claim (subject to our determination of you having reasonable prospects of success).
To discuss any disputes over Wills and Estates, contact our Estate Litigation Department Manager, Amanda Heather, on 1800 621 071, direct line 07 5506 8245 or email [email protected]. You can visit our experienced team at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney or Melbourne.
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Nightmares, depression, anxiety, insomnia, an unnerving sense of danger: these are just some of the symptoms experienced by people who suffer from post-traumatic stress disorder. Being involved in a traumatic situation at work can make us feel scared, helpless and embarrassed. Not having the acknowledgement and support needed from your employer (or their WorkCover insurer) in order to move forward and tackle these symptoms is completely unjust, explains Attwood Marshall Lawyers Compensation Law Senior Associate, Lisa Robertson.
Introduction – what is PTSD?
Although the term Post Traumatic Stress Disorder would seem to be relatively self-explanatory, the condition has had a checkered history in terms of the formal diagnostic criteria and symptoms that need to be evidenced before a formal diagnosis of the condition was made by treating psychologists and/or psychiatrists.  However, the diagnostic criteria and symptoms are set out in the 5th Edition of the Diagnostic & Statistical Manual of Mental Disorders (“DSM-5”).  The following are the formal diagnostic criteria that need to be met in order to be diagnosed with PTSD:-
CRITERION A
You were exposed to one or more event(s) that involved death or threatened death, actual or threatened serious injury, or threatened sexual violation. In addition, these events were experienced in one or more of the following ways:

Directly experiencing the event;
Witnessing the event as it occurred to someone else;
You learned about an event where a close relative or friend experienced an actual or threatened violent or accidental death;
Experiencing repeated exposure to distressing details of an event, such as a police officer repeatedly hearing details about child sexual abuse.

The relevant symptoms that you need to experience or are associated with the traumatic event are contained in Criterion B:
You experience at least one of the following intrusive symptoms associated with the traumatic event:

Unexpected or expected reoccurring, involuntary, and intrusive upsetting memories of the traumatic event;
Repeated upsetting dreams where the content of the dreams is related to the traumatic event;
The experience of some type of dissociation (for example, flashbacks) where you feel as though the traumatic event is happening again;
Strong and persistent distress upon exposure to cues that are either inside or outside of your body that is connected to your traumatic event;
Strong bodily reactions (for example, increased heart rate) upon exposure to a reminder of the traumatic event.

There are further criteria relating to frequent avoidance of reminders in Criterion C as well as additional criteria such as:

Negative changes in thoughts (Criterion D);
Changes in arousal (Criterion E);
Symptoms lasting for more than a month (Criterion F);
Symptoms bringing about considerable distress and/or interfering greatly with a number of different areas of your life (Criterion G); and
Symptoms not due to a medical condition or some form of substance abuse (Criterion H).

The formal diagnosis for PTSD under DSM-5 requires you need to meet the following:-

Criterion A;
One symptom or more from Criterion B;
One symptom or more from Criterion C;
Two symptoms or more from Criterion D;
Two symptoms or more from Criterion E;
Criterion F through H.

To see the complete list of DSM-5 Diagnostic Criteria for PTSD, click here.
As you can see from the above, the area is a very complex and the formal diagnosis criteria for the condition needs to be confirmed by medical practitioners.  Getting to the bottom of these issues can often be a very difficult process for the worker who has been exposed to some traumatic event and then must deal with the process of a formal diagnosis confirmed by their treating doctors prior to being entitled to compensation.
The trouble with claiming workers’ compensation for any psychological injury or mental illness is that it is difficult to prove what you cannot see.  Mental illness is often insidious. It is not as obvious as a physical injury, but it can have an equally devastating effect on the health and work capacity of those suffering from it. PTSD is a particularly difficult and controversial injury to diagnose, with even the people who suffer from it being unaware that they suffer from this condition.
The condition is often exacerbated by employers who are sceptical that the injury is genuine or has been caused by a work-related incident, coupled with a lack of experience in dealing with this type of condition. When you add the further layer of dealing with an equally sceptical and often insensitive WorkCover or insurance company claims officer, or an in-house workers compensation officer, all the ingredients are there for an explosive outcome.
Increase in WorkCover psychological injury claims
Studies have shown that not only has there been a marked overall increase in general psychological conditions suffered by Australians, there has also been a corresponding increase in work related psychological injury claims.  These types of claims have also been exacerbated by the onset of COVID-19 and the resultant problems this has caused in many workplaces. However, the focus of this article is relating to injured workers who suffer from PTSD.  We have certainly noticed an increase in these types of claims and part of the reason for this is that people are more willing to acknowledge they are suffering from the symptoms and seek help from their treating general practitioner.
In many cases the injured worker suffering from PTSD has no awareness of the impact that it is having on their life and the lives of their family members. Quite often it is not until co-workers, friends or family members notice the change in behaviour and insist that the injured worker obtain treatment.  There is also a higher public awareness of mental illness generally, whereas historically many people were too embarrassed or thought that what they were suffering from would correct itself in a short period of time.  Many injured workers also “soldiered on” and exhibited the traditional Australian quality of stoicism.  This conduct usually delays the inevitable and in many cases exacerbates the underlying psychological condition.
Many people are unaware that apart from any potential worker’s compensation claim associated with a work psychological injury, you are entitled to a mental health plan which is covered by Medicare.
Any worker who suffers a traumatic incident at work or travelling to or from work should ensure that they consult their general practitioner and obtain treatment as soon as possible. There are many different kinds of incidents which can cause people to suffer from PTSD.  It could involve some form of bullying or harassment, physical assault or witnessing some form of traumatic or distressing event.  As long as the triggering condition is related to your work, you are entitled to lodge a worker’s compensation claim which will cover you for any reasonable treatment costs that you incur and pay a percentage of your usual wages in the event that you are unable to work as a result of your injury.  There may also be an entitlement to a lump sum payment if your condition is permanent.  You may also be entitled to bring a common law claim in negligence against your employer.
We strongly recommend you obtain medical treatment as soon as possible and legal advice about whether you have a workers’ compensation claim. There are strict time limits that apply to these claims, so you need to act as soon as possible. 
Read more: Policewoman wins eight-year insurance battle for TPD claim after suffering PTSD
Read more: Manus Island Detention Centre social worker wins compensation after sexual assault
Read more: WorkCover Death Benefits and Common Law Negligence Claims
Read more: Legal action for mining worker who suffered severe psychiatric injury
Read more: What is a TPD Benefit?
Workers most at risk of suffering psychological injuries in the line of work
Emergency services personnel are particularly vulnerable to psychiatric injury. These include firefighters, police officers and paramedics. Emergency services personnel are regularly exposed to traumatic and life-threatening situations in the line of duty.
These frontline workers or ‘first responders’ often suffer from Post-Traumatic Stress Disorder (PTSD), a mental health condition causing the sufferer to re-experience their trauma through symptoms such as distressing nightmares, flashbacks, and intrusive thoughts or recollections of events. The condition can cause a plethora of other mental, physical and social symptoms which affect a worker’s ability to function generally, let alone perform the day-to-day tasks of their employment.
A report published in 2018 by Beyond Blue titled Answering the Call revealed survey results indicating that first responders suffer a higher rate of mental health conditions when compared to the general population.  The survey also indicated that claims for work-related psychological injuries were 10 times higher in first responders than for those of the general workforce.
However, despite the prevalence of first responder PTSD in the workforce, sufferers have traditionally encountered problems proving that their injury was caused by their employment.
It can take years of traumatic exposure before the condition onsets. With delayed onset, it can make it very difficult to establish causation for the purposes of recovering workers’ compensation benefits and improve treatment outcomes.
What legislation is in place to support workers who suffer from PTSD?
States and Territories such as Tasmania, the Northern Territory and Queensland have either enacted, or are aiming to enact, presumptive legislation providing a reversal of the onus of proof for first responders and other eligible workers. What this means is there is now a rebuttable presumption that a worker’s employment substantially contributed to their PTSD.  It is for the employer to prove otherwise.
Tasmania blazed the trail with the enactment of the Workers’ Rehabilitation and Compensation Amendment (Presumption as to Cause of Disease) Act 2019 which inserted section 28A into the Workers’ Rehabilitation and Compensation Act 1988.  Section 28A(2) provides that:
“… where a relevant worker suffers an injury that consists of post-traumatic stress disorder, the worker’s employment is, in the absence of evidence to the contrary, taken to have contributed to a substantial degree to that injury.”
More recently, the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2020 was re-introduced to the Queensland Legislative Assembly in November 2020 after an identical Bill of the same name lapsed.  The Bill’s purpose is to improve the workers’ compensation experience and mental health outcomes for first responders and other eligible employees or relevant volunteers, who are diagnosed with PTSD.
The Bill is intended to redress the difficulties employees encounter with proving their injury and facilitate access to the workers’ compensation scheme.
At the date of writing, the Bill has been referred to the Education, Employment and Small Business Committee (‘the Committee’) of the Queensland Parliament for a public hearing.
The Queensland Law Society has provided some feedback regarding the Bill to the Committee. The Law Society’s concerns included uneasiness about the reversal of the onus of proof as a cornerstone of legal principle, the lack of evidence justifying the need for the breadth of the Bill and the broad range of workers covered, and the viability of the Queensland workers’ compensation scheme if the ‘floodgates’ are opened.
What about workers from other industries?
The legislation may prove unfair for those classes of workers who suffer work-related PTSD and are not protected under the prospective Act because they are not first responders or eligible employees or volunteers.
For those workers, the onus will remain on them to prove that their employment was the substantive cause of their PTSD. They are often required to identify and endlessly recount their traumas to claims officers and WorkCover panel doctors in order to prove a work-place injury. This can have the effect of retraumatising them.
A poignant example would be workers such as the Dreamworld electrician and maintenance technician who suffered PTSD  due to the Thunder River Rapids ride tragedy in 2016.  The worker jumped into the water to help the victims, remove them from the water and cover them from public view.
Long after the incident, he continued to experience flashbacks and nightmares from the horrific event which took place.  It is unlikely that he would have the benefit of presumptive legislation as he was an employee of a company and would not come under the umbrella of the prospective Queensland Act.
Although this worker’s trauma can be pinpointed to one horrific event and causation is easier to establish, he may well be re-traumatised by the continuous need to recount his experience to insurers in order to establish causation and prove the reasonable necessity of treatment.
PTSD is a terrible affliction that affects swathes of workers, irrespective of whether they are emergency services personnel or not.
While presumptive legislation may benefit certain classes of workers who have a specific type of psychiatric injury, there are many who will be left out in the cold and retraumatised by the hurdles of establishing a work injury in an adverse system.
We need to see further changes to legislation so that these considerations can extend to all workers, no matter the industry they work, who may experience exposure to similar traumas and develop significant psychiatric conditions.
How can Attwood Marshall Lawyers help?
Each state and territory have different schemes in relation to workers’ compensation, which means the claims process is slightly different depending on the situation and your location.
Attwood Marshall Lawyers are here to support you through the entire process. With extensive experience in both Queensland and New South Wales Workers’ Compensation Schemes, we understand the magnitude of making a claim in this area and how confronting it can be.
No matter the industry someone works in, we believe anyone who suffers PTSD or other psychological conditions as a result of a traumatic event that took place within the work environment should be entitled to the compensation and treatment they deserve in order to try to piece their life back together.
Read more: New laws to support first responders battling PTSD
If you have been impacted by traumatic events performing your duties at work, you may be able to make a claim for compensation. Contact our Compensation Legal Department on 1800 621 071 or you can discuss your matter directly with Department Manager Kelli Costin by phoning 07 5506 8220 or email [email protected]
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With over half the population without a valid Will, and even more people without an Enduring Power of Attorney (EPOA) in place, it’s important to discuss exactly why these documents are so important and what you need to consider when appointing an Attorney, explains Attwood Marshall Lawyers Wills and Estates Lawyer, Natalie Comerford.

Attwood Marshall Lawyers · Natalie Comerford – Law Talks – EPOA
What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document that gives another person permission to act and make decisions on your behalf.  Those decisions can be of a financial nature such as preparing a tax return, operating your bank accounts, selling your home, taking out a lease or voting at meetings – just to name a few.
An Enduring Power of Attorney can also make decisions related to health and personal matters if you lack the capacity to make those decisions for yourself.
The type of health decisions that may be made under an Enduring Power of Attorney include:

Consent to give medication;
Refusal of medication;
Decide where you live;
Decide what other types of health services you receive.

Many people struggle to understand what these documents achieve and why they are needed in the first place. It can be helpful to think of an Enduring Power of Attorney like a driver’s license.  A driver’s license is essentially a document (or card) that gives you permission to drive on roads.  Without the licence you would not be permitted to drive. If you do not have a licence and are caught driving, you can get yourself in quite a bit of trouble.  The Enduring Power of Attorney is similar in the sense that it is a document that shows others that you have permission to act on behalf of another person and make their decisions for them when they are not present or capable of making their own decisions.
If you do not have an Enduring Power of Attorney, can your family members still step in and take over? 
This is a problem that we face quite often.  In order to put an Enduring Power of Attorney in place you need to be over 18 years old, have the capacity to understand the nature and the effect of the power that you are giving another person and execute the document freely and voluntarily.
It is a common misconception that your family are able to just step in and take over automatically in the event that you lose capacity or cannot make decisions for yourself.  If you missed the opportunity to put an EPOA in place, then your family will need to make an application to the State Administrative Tribunal, in Queensland that would be the Queensland Civil and Administrative Tribunal (QCAT) and in New South Wales it is NSW Civil and Administrative Tribunal (NCAT).  This process takes time and can be very costly.
Do not try to create an Enduring Power of Attorney without legal assistance
An Enduring Power of Attorney is one of the most crucial and powerful documents you can create in your lifetime.
An experienced lawyer can help you understand possible outcomes that can occur when you give someone power over your financial, personal and health decisions.
A Wills and Estates Lawyer can word these documents in a way that determines how decisions are made and put any checks and balances in place that would be beneficial to ensure that the person you appoint as your attorney will make decisions in line with your best interests.
Just like do-it-yourself Will Kits, Enduring Power of Attorney documents are available online, however if you choose to execute these documents yourself, you need to understand the significant risks involved.
We are often approached by clients who have found themselves in a bit of a pickle after trying to create a DIY Enduring Power of Attorney document. A common scenario we see is where a person has been advised by doctors to put an Enduring Power of Attorney in place for their elderly parent. They jump onto the Government’s website, download the form and fill it out, feeling satisfied that all their legal affairs are in order.
As the story goes, the time comes when their parent loses capacity and requires a higher level of care. Their parent’s house needs to be sold and the parent cannot do it for themselves having lost capacity.  The client goes to use the Enduring Power of Attorney only to discover it has been incorrectly executed and is not valid.
At this stage, the opportunity has been lost and the attorney must face the application process to be appointed by QCAT, if they are in Queensland, or NCAT in New South Wales, to the role.  At the end of the day this will mean a significant delay and unexpected expense before anyone can move forward.
What happens if you change your mind after appointing an Enduring Power of Attorney?
If you have capacity, you can revoke your appointment and put a new Enduring Power of Attorney in place at any time.  We see this often where someone has appointed a good friend many years ago, their circumstances change, and they no longer want to give that person the same level of power.
When revoking an Enduring Power of Attorney, you will need to inform the original attorney and all other relevant people and agencies.
If you want to revoke your Enduring Power of Attorney appointment, it is imperative that you seek legal advice as soon as possible to ensure your current documents always reflect your wishes.
What happens if you appoint the wrong person?
If you appoint the wrong person the list is almost endless as to what could go wrong.
You are giving someone complete control over your finances, medical decisions, property and living arrangements. You need to ensure who you give this power to is someone who will make the same decisions you would make for yourself. An EPOA is all about protecting your best interests and ensuring your unique values and wishes are considered and granted by your attorney.
If you separate or divorce from your partner who you have appointed as your attorney, it is important to remember that separation and divorce will not affect the validity of an Enduring Power of Attorney and you will need to revoke these appointments and create a new EPOA to ensure they reflect your wishes.
Not everyone has family or close friends they can entrust this power to. For some people, they choose to appoint a professional, such as their solicitor, to act either jointly or separately as their attorney.
We want you to have peace of mind
Attwood Marshall Lawyers understands exactly what is required to execute Enduring Power of Attorney documents so that they are valid and properly witnessed and signed. It’s imperative to ensure there is no ambiguity within these documents to reduce the risk of family disputes or arguments come the time the document comes into effect.
As a leading estate planning firm, Attwood Marshall Lawyers take a holistic approach to your estate planning needs. Your documents will be prepared by an experienced lawyer who practices exclusively in the area of Wills and Estate Planning.
Read more: Estate Planning 101
Read more: Enduring Power of Attorney – be aware of changes coming
Read more: Don’t blindly trust the Public Trustee – there are alternative options available
For a complimentary 20-minute estate planning review please call anytime on 1800 621 071. You can also contact Wills and Estates Department Manager, Donna Tolley, directly on 07 5506 8241, mobile 0423 772 555 or email [email protected]
You can visit our experienced team at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney or Melbourne.
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A Sydney couple were promised their elderly neighbour’s multimillion-dollar estate in exchange for lifetime care and a change of renovation plans to preserve her waterfront views. However, their neighbour did not honour her promise and changed her Will shortly prior to her death, leaving them $25,000. After challenging the estate and enduring a long court battle, the couple inherited two waterfront properties worth $9 million. Attwood Marshall Lawyers Estate Litigation Senior Associate, April Kennedy, discusses the case.
The promise
In 1999, Mr Moore and Ms Andreasen purchased a property next door to Ms Murphy (the deceased) which they referred to as “the worst house in the best street”. They bought their property with the intention of renovating and selling it for a profit.
Ms Murphy had been living alone at her property in the upstairs unit for many years. She had no immediate family nearby. The couple developed a close relationship with Ms Murphy. When Ms Murphy learnt about the couple’s intention to renovate their home, she indicated to them that she would be devastated to lose her waterfront views.
In 2005, Ms Murphy made a promise to Mr Moore and Ms Andreasen to gift her multi-million-dollar Sydney estate to them under the following conditions:

That they cared for her for the remainder of her life so Ms Murphy could avoid moving into an aged care facility;
Mr Moore and Ms Andreasen would change their renovation plans to allow Ms Murphy to keep her waterfront views.

In exchange, Ms Murphy promised the couple that she would prepare a Will leaving them her $12 million estate which consisted of the two waterfront properties as well as other assets.
The couple agreed and they performed their side of the agreement. They said that they treated Ms Murphy as part of their own family for approximately 10 years and altered their renovation plans to preserve the waterfront views enjoyed by Ms Murphy.
There was no written agreement put in place.
 The Will and Court proceedings
In 2014, Ms Murphy changed her Will unexpectedly. Her new Will left her entire estate equally between her brother and sister. Her neighbours, Mr Moore and Ms Andreasen were left a cash legacy of $25,000.
In January 2015, Ms Murphy died at home. Mr Moore and Ms Andreasen only became aware of the changes Ms Murphy had made to her Will after she passed away. Following Ms Murphy’s death, they tried to reach an agreement with the deceased’s brother and sister which ultimately failed.
On 24 September 2015, the couple filed an estoppel claim in the NSW Supreme Court arguing that the deceased’s two waterfront properties should be transferred to them based on the promise made by Ms Murphy. Many family members and friends of both Ms Murphy and the couple gave evidence that they were told of the promise.
After a lengthy hearing held over nine days, Chief Judge Ward ruled in favour of the couple, stating that she was satisfied that there was “a sufficiently clear representation by the deceased to the effect that, if the plaintiffs (the couple) looked after her (in the way in which Ms Andreasen had been looking after her own mother), so that the deceased could stay in her own home for as long as possible, then the deceased would leave the Louisa Rd properties to them.”
There was enough evidence to establish that the couple relied on Ms Murphy’s testamentary promise at their own financial and personal expense. On this basis, the Court ordered that the two properties be transferred to the couple.
What is equitable estoppel?
This type of claim, referred to as “equitable proprietary estoppel” or “promissory estoppel”, is a growing area in estate litigation. In layman’s terms, it is an action to enforce a promise made by the deceased to another person, where that person has acted to their detriment relying on that promise and suffered loss as a result.
It is fairly common in cases involving disputes over family farms, where a child works on their parents’ farm for years for little or no remuneration, in reliance upon promises made by the parents that that child would eventually inherit the farm. It is also becoming prevalent in circumstances where the person making the claim is not eligible under family provision legislation i.e. siblings, neighbours or friends.
This area of law has a long history in the development of principles to alleviate the harsh consequences of where there is no written contract in place, but the parties involved conduct themselves and say things that support a contract being inferred or an existing written contract being varied. In the famous 1947 English Kings Bench Division of the High Court case of Central London Property Trust Ltd v High Trees House Ltd, Judge Denning (as he then was) created the modern doctrine of promissory estoppel by extending its operation to a lease of flats in Clapham, London where the rent had been reduced by 50% during the second World War. Previously, the harsh application of contract law prevented any such variations unless they were in writing and by Deed. Judge Denning went on to become Lord Denning and Master of the Rolls in the Court of Appeal and was renowned as a huge agent for change in the law in England during a distinguished and, at times, controversial career.
What needs to be proven to establish an equitable estoppel?

The person enforcing the promise needs to prove the following:

The deceased made a promise to them during their lifetime;
They relied on the promise;
They suffered loss or detriment as a consequence of relying on the promise, and that the loss they suffered was reasonable in the circumstances; and

Based on their reliance on the promise, it would be unconscionable if the deceased’s estate was not bound by the promise.
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers have one of the largest and most experienced estate litigation teams in Queensland, with senior lawyers who practice exclusively in this complex area of law.
It is our renowned intent to help people; we are here to help you get what you are fairly entitled to.
Most estate litigation cases are accepted on a ‘no win, no fee’ or deferred payment basis. There are no costs required upfront to commence your claim (subject to our determination of you having reasonable prospects of success).
To arrange a free initial consultation please contact Estate Litigation Department Manager, Amanda Heather, on 1800 621 071, direct line 07 5506 8245 or email [email protected]
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Last month saw Channel Nine’s biggest Australian Reality hit show, The Block, reward their contestants with record-breaking sales. Winners Jimmy and Tan were set to take home more than $1 million. However, one month after the final call was celebrated, the buyers have not settled and devastation surrounds the winners. The property may be back on the market. Attwood Marshall Lawyers Law Graduate and Licenced Conveyancer, Rachel Godden, discusses what people need to understand when bidding at an auction.
What went wrong?
The woman who placed the winning bid on the home of Jimmy and Tan failed to come through with the money, with settlement scheduled to take place last week.
Emese Fajk, the eccentric 28-year old who got the nation’s attention when she placed her winning bid on auction day, seems to have left a trail of destruction by presenting receipts of bank transfers that in reality do not exist.
“Settlement was yesterday and there’s been no positive outcome from it… it’s something no one ever saw coming,” Jimmy told A Current Affair.
“We’ve pretty much been conned.”
As per the rules of The Block, despite the disappointment of the bidder not coming through with the cash, Jimmy and Tan will remain the winners of The Block 2020.
What people need to understand when bidding at an auction
Auctions are a very popular way to buy and sell property in Australia. The auction process is governed by general rules that apply Australia-wide, and additional regulations vary by State and Territory.
Auction sales are ‘unconditional’ and there is no cooling off period, nor is the contract subject to finance or a satisfactory building and pest inspection. For anyone bidding at an auction, they need to be ready to pay the 10% deposit and sign the contract of sale immediately upon the fall of the auctioneer’s hammer should they be the highest bidder on the day. The sale contract is usually a 30-day settlement and you take the property ‘as is’.
Victoria is one of the few states where there’s no requirement for homebuyers to register to bid on a property with the real estate agent selling it.
In New South Wales, Queensland, South Australia, Tasmania and the ACT, anyone who wishes to bid at an auction will need to register before the auction begins and provide suitable ID.
By registering as a bidder, you are bound to the laws which govern auctions – which obligates you to exchange contracts and complete the sale if you place the winning bid.
Auction conditions and the draft sale contract are set by law and are on display before an auction takes place so everyone can read them.
What happens if the winning bidder doesn’t pay?
Real Estate Institute of Victoria president Leah Calnan said if a buyer didn’t proceed with a purchase after paying a deposit in full, the vendor was entitled to the full deposit.
In the event the property has to be resold, if there is any shortfall from what the original contract was to what the second contract is, the vendor can sue the purchaser for the difference.
In this case, the deposit wasn’t even paid, which is an automatic breach that would entitle the sellers to terminate the contract.
The seller can also seek orders of the Court that they complete the contract (known as orders for specific performance), although if the buyer has no money, this relief can be of little use.
Dummy bids
A dummy bid is either a false bid made up by the auctioneer or a bid accepted by the auctioneer from a non-genuine bidder in the crowd, usually to influence the sale price.
‘Dummy bids’ are illegal. Therefore, if you place a bid knowing full well you cannot complete the sale, this is an offence.
In New South Wales, if someone makes a dummy bid for the seller, they could be prosecuted and fined up to $55,000. The property seller who may have asked that person to bid can also be fined up to $55,000, as can the agent and the auctioneer if they were involved in any way.
Property price indication
In Queensland, it is illegal for the vendor of a property, or their agent, to provide buyers with a price guide prior to bidding.
It is always recommended that if bidding on a property, you have sound knowledge of the market and have conducted your own valuation of the property prior to auction.
New South Wales and Victoria have established clear underquoting laws. NSW’s laws were introduced in 2016 and Victoria’s in 2017. Underquoting laws differ in other states, but all states sit under the Australian Consumer Law, where a breach of the law can attract the greater of:

$10 million, OR
three times the value of the benefit received, OR
where the benefit cannot be calculated, 10 per cent of annual turnover in the preceding 12 months.

Getting your ducks in a row before auction day
Before you bid at an auction for your dream home, there are four key tasks you should ensure you do.

Obtain unconditional approval for finance and confirm with your lender the maximum amount you can borrow. In fact, if you are relying on finance, it is not a good idea to buy at auction. The contract is strict and if you can’t get your bank loan organised in time for settlement, you risk losing your deposit and getting sued for any price shortfall in the resale. Sometimes, you can negotiate a longer settlement time (60 days) and a 5% deposit, but this must be agreed to in writing BEFORE the auction.
Ensure you have enough money available to give a cheque or payment by EFT for the deposit on the day of the auction. This is usually 10% of the purchase price.
Thoroughly inspect the property and know the property’s condition prior to auction day. This includes obtaining a professional pest and building inspection and reviewing any strata reports if relevant.
Review the contract of sale with an experienced property lawyer or licensed conveyancer to ensure you are comfortable and aware of all the terms.

How can Attwood Marshall Lawyers help?
For those in a position to buy, there are opportunities to purchase property at reasonable prices and take advantage of some of the latest promotions being offered by lenders.
Should buyers require any assistance with loan documents and sales contracts, the experienced Property Lawyers at Attwood Marshall Lawyers can provide expert legal advice to ensure a smooth transaction for all parties. It’s better to be safe than sorry. Don’t sign ANYTHING until you get proper legal advice!
Read more: House hunters receiving JobKeeper – pros, cons and considerations
Read more: COVID-19 changes Australian’s home ownership goals
Attwood Marshall Lawyers are a leading Property Law firm. For legal help with a conveyance, contact Property and Commercial Department Manager, Jessica Kimpton on 07 5506 8214 or email [email protected] today.
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With the festive season upon us, it is important to remind ourselves about road safety. This time of year generally means there are more people on the road. People are out doing last minute Christmas shopping, attending festive functions or heading off on that much needed holiday to visit friends and family. Attwood Marshall Lawyers Compensation Law Paralegal, Sally Marshall gives her top ten tips to stay safe on the roads this Summer.
Introduction
The Tourism and Transport Forum (TTF), the peak industry group for the Tourism, Transport and Aviation sectors, conducted a national survey which showed that road trips emerged as the most popular option for travel over flights and other modes of transport this Christmas season.
With the Queensland borders opening on 1 December 2020, there is expected to be an influx of drivers heading into Queensland with people driving from interstate to see their family and friends who they haven’t seen since at least March this year. The recent closure of borders to Sydney residents will no doubt impact on the travel plans of many, but it is still expected to be a busier than usual time for traffic on our roads this festive season with international travel banned and domestic flights struggling to cope with demand.
With more people and cars on the road, there is a higher chance of traffic accidents. Not only are there more people on the road but summer is also our storm season which increases the odds of a traffic accident occurring due to wet roads, poor visibility, and flooding.
Road Safety Statistics
Over the 12-day Christmas/New Year period in 2018-2019 there were 42 fatalities on Australian roads. 13 of these occurred in Queensland which was 7 more than the prior five-year average. Additionally, 182 people were hospitalised from accidents in Queensland during the same period.
To reduce the risk of a traffic accident you should avoid the five fatal offences as identified by the Queensland Police:

Speeding (speeding accounted for 20.4% of road fatalities in 2018);
Driving under the influence of drugs, alcohol or medication (driving under the influence accounted for 48.2% of the road toll in 2018);
Not wearing a seatbelt;
Driving while fatigued (13.1% of fatalities in 2018);
Driving while distracted (11.4% of fatalities in 2018).

The above statistics are for Queensland only.
Top tips for staying safe on the road this Summer
1) Maintain your vehicle – check that your tyres, lights, breaks and windscreen wipers are in good working order before getting on the road. RACQ provides a handy car checklist to help you make sure your car is safe before you head off on your next adventure. Click here to see the checklist. If you are not sure about the condition of your car, book in with your local mechanic for a service before hitting the road.
2) Plan ahead and don’t rush –give yourself plenty of time to arrive at your destination. Make sure to account for heavy traffic and rest stops. Check the weather, if a severe storm is predicted, try to delay your journey until the storm has passed. Always drive to the weather conditions, if it’s raining slow down and turn your lights on. It is better to arrive late, rather than never!
3) Rest – fatigue is one of the leading causes of traffic accidents. If you are going on a long road trip, make sure to have a good night’s sleep and take regular breaks along the way. Where possible travel with another driver and take turns in driving to reduce the risk of fatigue. If you feel yourself getting drowsy, pull over where it is safe to do so. The Queensland government has developed a map which covers all driver reviver locations, you can check it out by clicking here.
4) Take caution – If you must pull over in an emergency, make sure it’s safe to do so. Put your hazard lights on immediately and stay off the road.
5) Keep left unless overtaking – this will help prevent road rage, tailgating and decrease your chances of being rear-ended.
6) Don’t drink and drive – Christmas is a great excuse to overindulge in food and drink. Always plan ahead when going to an event where alcohol will be served. There is no excuse for drink driving when ride-share services such as Uber and Taxi Services are only one click away. Download the app of your choice before you leave home so it’s easy for you to access when you are ready to leave your event.
7) Avoid distractions –Don’t use your phone to text, change music or set up your navigation system. If you cannot resist the temptation to check your phone while driving, put it in your glovebox or boot.
8) Obey the law – Do not partake in risky behaviour such as speeding, tailgating, or being discourteous to other drivers. Road rules are made for your protection. Wear your seatbelt, follow the speed limit and stop and give way as signed.
9) Secure your load – Loose items cause serious and deadly accidents every year. Take a few extra minutes to make sure everything is secured before setting off. Drivers who fail to secure their load are usually found liable in negligence for the injuries or death caused to others. Traffic infringements and criminal penalties can also apply.
10) Be aware of other drivers – although you may be doing the right thing and driving safely, that doesn’t mean everyone else is. If you see another car swerving, tailgating, not using their indicators, etc. avoid them as best you can.
By keeping safety front of mind and following these tips, you can reduce your risk of being in a car accident. The 2020 road toll in Queensland has already been high. Please take care on the roads and enjoy your holidays so that everyone can stay safe and enjoy the festive season.
Attwood Marshall Lawyers are Compensation Law experts that help people when accidents happen. If you have been involved in an accident and require legal assistance, we’ll be here to support you through the tough times. We are open over the Christmas break and you can contact us 24/7 on our freecall number 1800 621 071. Contact Compensation Law Department Manager, Kelli Costin on 07 5506 8220 or email [email protected] for a free, no-obligation initial consultation. We can discuss any of your personal injury matters by telephone, video conference, or in person at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Sydney or Melbourne.
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The Christmas party season is here! Work Christmas functions provide a great opportunity to mix with your colleagues, reflect on the year’s events and celebrate your achievements together. It is important to remember that both employers and employees have certain rights and responsibilities. These continue to apply outside of the work environment, explains Compensation Law Graduate Henry Garrett.
Introduction
After a tough year on the tools, having faced the uncertainty and restrictions that came with the COVID-19 pandemic, and overcoming some of the most difficult times of our lives, it’s time to reflect and enjoy the Christmas season.
For many businesses, the end of year Christmas party has never been more deserving. With staff being disconnected working from home or even on reduced hours or stand down, an end of year celebration is a great way for businesses to bring everyone back together and reward their staff for their hard-earned effort throughout the past 12 months.
However, with festivities, comes additional risk. There are the obvious risks associated with hosting a Christmas event and the duty of care to employees the employer needs to consider.
The question of who is liable if an employee decides to overindulge in eggnog or become a drunken disaster can be misunderstood. It’s important to think about the work Christmas party as an extension of the work environment, and therefore the same standards of behaviour apply.
Employer’s liability – when are you covered as an employee?

Traveling to and from the Christmas Party

Any event that is considered ‘in the course of employment’ must be covered by workers’ compensation. If someone is injured whilst travelling to or from a work, including work functions, they will be entitled to lodge a ‘journey claim’. In Queensland, WorkCover is the insurer of the majority of employers, although some of the larger companies are ‘self-insurers’.
The right to claim covers from the boundary of a staff member’s residence to the boundary of the premises in which the function is being held. This can get complicated at times. There are a number of things to consider if you intend to make a journey claim, and your individual situation would be looked at to determine your eligibility.
Journey claims are not a negligence claim, they are a ‘no fault’ scheme. This means an eligible claimant will receive weekly benefits and payment for any reasonable medical treatment without having to prove who was at fault (or negligent). Once the employee is back at work, or their injuries have been rehabilitated, the employer has no further involvement or obligations.
If the employee’s injuries were caused by someone else’s negligence and are severe enough to make a claim for compensation, there will be a separate insurance company (i.e. the CTP insurer in a motor vehicle accident or a public liability insurer for a slip and fall injury) who would step in to answer a claim for negligence. If there is a related compensation claim, any payments received from WorkCover in the journey claim must be refunded.

At the Christmas Party

Your employer has the same responsibility to keep you safe while you are enjoying the Christmas party with your colleagues as they need to keep you safe at the office, or on the work site. Compensation claims are often accepted for people who take a tumble while dancing, slipping over on spilt drinks, or are involved in altercations with other partygoers that results in injury.
The foolish acts that people do when letting their hair down at the end of year Christmas party never ceases to amaze lawyers. However, Courts often favour the injured person in circumstances where they can prove that the employer significantly contributed to the injury. This usually involves the irresponsible service of alcohol or the employer not taking enough action to keep people safe and reduce the risk of incidents happening in the first place.
When a Christmas party takes a turn for the worse, poor management or misbehaviour could potentially lead to:

Physical injuries– a physical injury that could be sustained at a work function could be slipping, tripping or falling, physical fights, cuts and lacerations, burns and abrasions, and even broken bones.
Psychological injuries– psychological injuries can include depression, post-traumatic stress disorder (PTSD) and anxiety as a result of an incident happening at the party.
Discrimination claims– State and Federal anti-discrimination laws provide that employers can be held legally responsible for acts of discrimination or harassment that occur in connection with a person’s employment; which extends to the work Christmas party. Discrimination may be a result of bullying, harassment or even not setting clear expectations as to what acceptable behaviour is and then dismissing an employee for something relating to an incident. However, take note, there have been many cases where a judge has upheld the dismissal of an employee as valid due to the employee’s behaviour being completely unacceptable – so tread carefully.
Sexual harassment – alcohol fuelled events can run the risk of lines being crossed. In no instances is sexual harassment acceptable and should you feel you have been sexually harassed at a work-related event; you would have the same rights as if it happened within the office or work site environment.

DISCLAIMER: Don’t be foolish – don’t put a dampener on the festivities

It is not all doom and gloom for the employer, staff also have an obligation to make sure they are doing the right thing and keeping themselves out of harm’s way. A person’s claim for compensation can be significantly reduced or can fail completely if they are found to have acted recklessly and have injured themselves in the process.
If you are intending on ‘letting your hair down’ at this year’s Christmas party, drink responsibly, look after your colleagues and don’t behave foolishly!
Wishing you a Merry Christmas and safe and happy new year. Should you need us, we’re here to help and are available throughout the holiday season. Contact our Compensation Law Department on 1800 621 071 for free, no obligation legal advice about claiming benefits, compensation and our No Win, No Fee service.
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Summer is here and excitement is buzzing for those getting set to travel and visit family and friends. The last thing you are probably thinking about when you are enjoying your downtime is whether or not your insurance policies are up to scratch. Attwood Marshall Lawyers Compensation Law Senior Paralegal, Amy Lewis, discusses the importance of reviewing your life insurance as frequently as you do your car and home insurance, particularly when you are getting ready to set off on your next adventure.
Introduction
Most people have insurance for their home, contents, car, and even take out travel insurance. However, they often forget to review their life insurance policies. You wouldn’t drive a car uninsured, so why would you risk your financial security in case of the unfortunate and unexpected happening?
With the holiday season here, this is a great time to ensure your life insurance requirements are adequately met.
During this time, there’s generally a significant increase in accidents and visits to hospital emergency rooms. This increase is not just the result of more people being involved in car accidents, but also injuries from water and leisure activities, intoxication and even incidents involving ladders and home decorating/maintenance tasks which have gone terribly wrong.
When you injure yourself at work, there is a certain level of protection provided by workers’ compensation schemes, however if you were to injure yourself over the holiday period, you need to ensure you protect your financial security and have the appropriate insurance cover.
Read more: When was the last time you reviewed your superannuation insurance policies?
Life insurance can be broken down into four main categories
Income Protection (also known as salary continuance)
If you are injured or suffering from illness and unable to work temporarily, income protection usually covers your income up to 75% of your pre-injury salary.  Unlike workers’ compensation insurance, your injury or illness which prevents you from working does not need to be sustained during your employment.
Income protection insurance can be held through your superannuation fund or directly through an insurer. If you do opt to hold insurance directly with an insurer and pay premiums from your salary, these premiums can be claimed as a tax deduction.
Things to look out for when reviewing your income protection policy:

Waiting period: Are you able to survive without an income for the length of your waiting period?  The waiting period varies on each policy and you can choose a waiting period anywhere from 14 days up to three months. The longer the waiting period, the cheaper the premium.
Benefit period: This is the length of time you will receive income protection benefits providing you continue to remain unable to work.  Benefit periods range from six months all the way up to the age of 65.
Monthly insured amount: Does the monthly insured amount accurately represent your salary and requirements?

These three components can affect your insurance premium. To ensure your financial needs are adequately met and suit your budget, it is recommended you seek the assistance of an experienced and reputable financial advisor when selecting a policy to suit your individual needs.
Total and Permanent Disablement (TPD)
If you are injured or suffering from an illness and it is unlikely you will ever be able to return to the workforce, TPD insurance can provide a lump sum benefit to assist with ongoing expenses and the loss of income.  The injury or illness that has impacted your ability to work does not need to be workplace related.
When taking out a TPD policy, it is important you understand the definition within your policy and that your insured amount meets your needs.  Some policies include clauses relating to employment status (casual, part-time or full-time) and have minimum working hours required.
It is very important to ensure your policy suits your situation. If you hold a policy that requires you to be employed full-time and you only work casually, this could mean you are ineligible to make a claim in the event you need these benefits.
Once again, you should obtain the advice of an experienced and reputable Financial Planner or insurance broker in this area to ensure the policy you take out is a match with your circumstances.
Read more: Watch out for TPD definitions

Trauma
Trauma insurance provides protection when you suffer from a particular illness.  For example, if you suffer a stroke, heart attack or develop cancer, a trauma policy will pay out a specified lump sum amount depending upon the illness. Trauma works slightly differently from income protection and TPD insurance whereby you do not have to be off work in order to make a claim.  Trauma cover simply pays you a benefit if you suffer from an insured event which is usually based upon the type of illness or injury suffered.
Trauma cover is not available through superannuation and must be taken out directly with an insurer.
Again, there are definitions of the illnesses or injuries suffered which you must satisfy to qualify for a payment as well as certain exclusions. It is best to get advice on any cover taken out so you clearly understand what you are covered for (and more importantly, what you are not covered for!).
Life
With some superannuation funds, life insurance (also known as life assurance or death insurance) can be paid out early under “terminal illness” conditions.  That is, if you are diagnosed with a terminal illness and your prognosis is that you will live for less than 24 months, most insurers will pay out your full lump sum life insurance early. These funds can help you seek alternative treatment or simply can be used to enjoy the rest of your days with your loved ones.
Life insurance can be held through superannuation or with an insurer directly. Again, it is always important that your insured amount meets your personal needs.
Life insurance provides you peace of mind if you were to pass away unexpectedly and would provide ongoing support for your spouse and children or other dependant family members.
Read more: Superannuation insurance benefits can be paid early if you are terminally ill
How can Attwood Marshall Lawyers help?
Take the time these holidays to make sure you are protected with appropriate insurance cover.
In the unfortunate event you have an injury or illness and need to make a claim, it is always best to seek the right advice.  Many of our clients have tried to lodge superannuation and insurance claims themselves or have allowed their financial planner or insurance agent to assist. It is very important that you engage experienced lawyers in this area, as you only have a limited time and ‘one crack’ at the policy payment. Sometimes, mistakes are made in the application which can delay or even compromise your payment. Please make sure you get the right advice – we’re here to help. The last thing you need at such a stressful time in your life is to be worrying about legal technicalities and paperwork required by insurance companies!
We offer a free initial assessment of your policies and your prospects of bringing a claim or claims. We accept most cases on a no-win no-fee basis and our costs are payable only if your claim succeeds.
It is our intent to help people suffering serious illness or injury through these stressful times and give you and your family peace of mind. If you would like assistance to help access your entitlements through superannuation, contact Compensation Law Department Manager, Kelli Costin, on 07 5506 8220 or email [email protected] for your free initial appointment.
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Most people think lawyers are taking it easy over the Christmas break, however, this is one of the busiest times of the year for many law firms, with a spike in serious accidents, insurance disputes, family law separations, domestic violence breaches, and deaths. Attwood Marshall Lawyers Legal Practice Director, Jeff Garrett discusses what Christmas time is like for lawyers with Steve Stuttle on Radio 4CRB.

Attwood Marshall Lawyers · Jeff Garrett – Christmas Time For Lawyers 2020
Traffic accidents over the Christmas holiday period
When the announcement came for the QLD-NSW borders to be reopened to NSW and Victoria on December 1, many people took the opportunity to start planning their road trips in time for Christmas.
Each year traffic volumes and congestion spike during the holiday season. With many people determined to hit the road after being locked down during the pandemic, road travel is expected to be a primary choice for anyone heading off on their next holiday adventure. The predicted increase in wet weather and potential cyclones will also contribute to the expected additional congestion on our roads over the break.
Unfortunately, increased traffic volumes tend to transfer to a significant spike in the national road toll and serious accidents. This can be credited to weather and road conditions, people driving fatigued, under the influence of drugs or alcohol or simply being distracted while driving.
For anyone involved in an accident who has been severely injured, they spend the Christmas break coming to terms with their injuries and recovering in hospital. There can be a lot of uncertainty in these situations as people’s lives have just been turned upside down. It is extremely stressful, and particularly when people are grappling with the notion that they are supposed to return to work in the new year. For anyone injured in a significant car accident, their injuries may impact their ability to work and challenge their earning capacity to financially support themselves and their family in the new year.
We understand that for anyone in this scenario, having access to a personal injury lawyer to be able to discuss the matter and what their options are can help them deal with the situation they have found themselves in. It is for this reason we are available 24/7 for any urgent advice needed.
A spike in deaths
As the Christmas season takes over, we are surrounded by Christmas songs on the radio and in our local shopping centres and are delighted by the Christmas spectacle around us. It can be easy to forget that this time of year represents a grim time in terms of health statistics. Several studies show you have a greater chance of dying on Christmas Day, Boxing Day or New Year’s Day than any other day of the year. This is true for people who die of natural causes, which accounts for 93% of all deaths.
It’s quite a bizarre trend, however for many elderly people, particularly those who are very ill, they tend to hold out for Christmas, only to pass away peacefully soon after.
Although it is comforting for families who get to spend one last Christmas with their parent or grandparent, it can also come at the most inconvenient time (not that there is ever a convenient time for death!). This can put additional stress on anyone dealing with the death of a loved one. For the people left to make funeral arrangements and begin the administration of the deceased’s estate, it can be quite challenging, and usually there will be significant delays. Most law firms are closed so you can’t even get a copy of the Will as a starting point.
This is one of the main reasons Attwood Marshall Lawyers remains open during the Christmas period, excluding public holidays. With one of the largest Wills and Estates teams in Australia, we make sure we have experienced lawyers available so that people can get assistance with these types of matters and are able to move forward with their lives.
Unfortunately, there are also many deaths caused through different types of accidents and misadventure over the holiday period which all contribute to a very busy time for our estate administration team. We have found that our grieving clients are so relieved to be able to speak to one of our experienced staff members during the holiday period and not have to wait until the new year.
Work related accidents and injuries
With many businesses closing over the festive season or reducing staff, there can be an increased risk in work related injuries or even “burn out” for those managing business affairs with only skeleton staff on call to support.
Delivery services are one of the main areas finding it hard – if not impossible – to cope with the current increased demand. For most of 2020 there has been a dramatic increase in online shopping driven by the COVID-19 pandemic, which has only accelerated even more in the lead up to Christmas.
Compared to this time last year, online shopping is up more than 75%. While postal services have hired additional workers to try to cope with the extra load, there are only so many sorting facilities and delivery vehicles available, not to mention hours in the day.
Being overworked and burnout is a risk as couriers work an average of 12 hours a day to try to deliver as many parcels as possible. Not to mention the increased risk of being involved in a traffic accident by being on the road during peak times and potentially driving fatigued.
We have noticed a marked spike in psychological WorkCover claims since the onset of COVID-19 and expect this to continue as the workplace adjusts to life returning to some form of normality.
Family law matters and domestic violence
The frayed tensions in families often unravel over Christmas because everyone comes together. There might be some financial pressures that have been bubbling away, tensions in relationships which have not been dealt with, or parenting disputes over children. Enquiries about divorce or separation tends to spike following Christmas.
The number of domestic violence related cases also surges during the Christmas-New Year period due to a mix of alcohol, stress and more family gatherings taking place.
This converts to more domestic violence orders, and violence related matters where people are charged with assaults and other offences.  These types of matters generally need to be dealt with immediately and people require legal advice to be able to move forward and try to resolve their matter.
Criminal behaviour
For our in-house Criminal Law Special Counsel, Richard Smith, this is one of his busiest times of year. There is an increase in drink driving offences, as well as assault charges for people who tend to have a bit too much to drink only to get into scuffles in the street or on private properties.
If you have committed an offence and have to go to court, you simply cannot wait to obtain legal advice and representation, you should seek advice as soon as possible.
Elderly issues
The elderly can be particularly vulnerable during Christmas time.  After what has been an extremely challenging year for seniors, dealing with COVID-19 restrictions, isolation, and in some cases an increase in elder abuse – more legal issues relating to seniors can arise over the holidays.
There are quite a few cases seen where families use Christmas time as an opportunity to put their elderly parents or grandparents into respite care. This is so they can go away on holiday and don’t have to look after mum or dad, or grandma or granddad, over that period.  There is a horrible term used for this which is referred to as “granny dumping”.
At this time of year, you can see a lot of unhappy elderly people being put into care against their wishes. For many, they would rather be at home enjoying Christmas with their families.
Unfortunately, there is not a lot you can do if you don’t have family members who are willing to take care of you. These are the very issues that need to be considered when you are completing your estate plan and documenting your wishes in your Will and Enduring Power of Attorney or Advanced Healthcare Directives.
Wills, Enduring Power of Attorney and Advance Healthcare Directives
These documents are something everyone should be ensuring are up to date, whether it’s Christmas or not. We all face the prospect of dying or losing capacity and going into care.  It’s integral to have these most important legal documents done in preparation for the unexpected.
Having these documents up to date will ensure your wishes are known and clear instructions are set out for your attorneys to honour if you become incapacitated or need to be admitted to hospital with a serious illness.
Read more: Five reasons you need to have a Will and Enduring Power of Attorney
Transitioning to Aged Care
When families come together at this time of year, it can also be the turning point where people realise their elderly parents or grandparents need that additional care or support that they may not have been getting. The transition to aged care can be a difficult issue to navigate.
It’s important to be able to identify exactly how much care someone needs, what options are available, and their financial position to be able to afford the transition into care.
Christmas time can present an opportunity to talk about these issues openly and start reviewing the options available.
Property transactions
Despite the COVID-19 pandemic contributing to our largest economic downturn since the 1930’s, CoreLogic revealed that Australia’s $7.2 trillion residential real estate market proved remarkably resilient. The real estate market has been running hot with houses being snatched up within 24 hours of being put on the market.
With record low interest rates combined with Government grants and incentives currently being offered, we expect to continue to see a surge in property transactions over the Christmas period and into the new year.
Our experienced property law team ensure first home buyers, investors and sellers receive the most professional property law services so they can make informed decisions and move quickly to take advantage of the current property market.
How can Attwood Marshall Lawyers help?
If there is something urgent that you need assistance with, Attwood Marshall Lawyers will be open over the Christmas period. We have a 24/7 phone line that you can call, leave a message, or you can email us and if your matter is urgent, someone will get back to you, even on a public holiday.
There aren’t many law firms on the Gold Coast or in Brisbane that offer that service, but we understand that sometimes things happen urgently and expectantly.
Our Robina Town Centre office is also open Thursday nights and Saturday mornings for your convenience. You can make an appointment with one of our experienced lawyers any time by calling 1800 621 071. If you are faced with any of these issues unexpectedly, know that there is still someone there to help.
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The nature and extent of child abuse and neglect is one of Australia’s most significant social problems. Institutional child sexual abuse has been occurring for generations. Despite greater awareness and legislative changes to better protect victims of abuse, sexual abuse in the school environment is still shockingly rampant, explains Attwood Marshall Lawyers Compensation Law Senior Paralegal Sue Davidson.

Introduction
This week marks the 3 year anniversary of when the Royal Commission presented their final report to the Governor-General, detailing the completion of a five-year inquiry into institutional responses to child sexual abuse and related matters.
The report found that almost one in three of all sexual abuse survivors (2,186 survivors or 31.8 per cent) were sexually abused in a school setting as a child.
Of these survivors:

three-quarters (75.9 per cent) said they were abused in non-government schools, of which 73.8 per cent identified a Catholic school and 26.4 per cent identified an Independent school
one-quarter (24.9 per cent) said they were abused in government schools
almost three-quarters (71.8 per cent) said they were abused in a religious school, while 4.1 per cent said they were abused in a secular non-government school
one in three (30.4 per cent) said they were abused in a boarding school setting, of which 96.8 per cent told us it was a non-government boarding school and 3.2 per cent identified a government boarding school. Of the non-government boarding schools, 57 per cent identified a Catholic school and 43.2 per cent identified an Independent school.

Survivors told of the abuse occurring in 1,069 schools, of which 55.8 per cent were non-government schools and 44.2 per cent were government schools. There were many instances of abuse ‘clusters’ in non-government schools, where a perpetrator would abuse multiple students over time.
Of the survivors of school-based abuse who provided information about the perpetrator’s age, 88 per cent advised they were sexually abused by an adult, and the vast majority (96.2 per cent) of these survivors advised that the abuser was male.
The Royal Commission into Institutional Responses to Child Sexual Abuse found that many victims did not disclose abuse for many years. Often the lack of evidence to substantiate the crime and the experience put on the victim in making disclosures of abuse deters a victim to report their mistreatment.
Over 16,000 individuals contacted the Royal Commission with more than 8,000 personal stories being heard in private sessions. Over 1,000 survivors provided a written account of their experience.
Many parents, spouses and siblings also provided evidence on behalf of their relatives, many of whom had died, some by suicide.
Child abuse – a significant and ongoing social problem
It can be extremely difficult and painful for many survivors to talk about past events and revisit traumatic experiences which have seriously impacted their lives and livelihoods. For many victims, sexual abuse is a trauma that affects every aspect of their life.
The world we live in is constantly changing, however some of the deep-seated issues remain. Most parents believe that when they send their children to school each day in the care of teachers and role models, that they are in a safe, positive environment, free from harm. After all, this is what schools promote – safety, wellbeing, the development of social and life skills, cultural and religious values. Given all the education and awareness about historical abuse and abuse of powers in institutions, too many children are still falling victim to predators.
Recently, an elite school on the Gold Coast has had two teachers stood down and an external investigation established after students were asked to remove their trousers during an adventure training session whilst a teacher supervised the activity wearing night vision goggles.
The same elite school has also admitted to paying compensation to 11 child sex abuse survivors, with at least an additional 18 former students still awaiting compensation.
What is child abuse?
Child abuse is any action towards a person under 18 years of age, that harms or puts at risk a child’s physical, psychological or emotional wellbeing. It can be a one-off act or continue over a long period of time.
Recognising inappropriate and predatory behaviour
Close bonds between children and educators are not uncommon and typically not a cause for concern. However, for parents and students it is extremely important to recognise when an educator uses their position of power to groom and exert authority over students only to later take advantage of their position of power and that trust.
Perpetrators who groom a child for future sexual abuse will deceitfully:

Manipulate the child to cooperate with them, which reduces the likelihood that the child will disclose this behaviour and increases the likelihood of repeated abuse;
Reduce the chances of abuse being detected; and
Reduce the chances of a child being believed if disclosure occurs.

It is imperative to have heightened awareness around the relationships children form with their peers and educators. This will enable you to recognise when boundaries are being crossed. This is the key to stopping abuse before it occurs.
Some of the warning signs to be aware of can include:

When an educator or person of authority gives frequent compliments to a student;
Unauthorised alone time with a student;
Likeability – Abusers work hard to be likeable and often spend a lot of time around groups of students, talking to them, going to places they go etc;
Unusual behaviour from the student – nightmares, loss of appetite, mood swings, not wanting to be hugged or touched.

Reporting incidents of child abuse
Anyone who suspects that a child is being abused and/or neglected, or is at risk of being abused, can make a report to child protection authorities.
Child Protection Authorities
Nationally in 2015-2016, members of the police force, followed by school personnel, medical professionals and family members were the most common sources to make a report to child protection authorities which lead to investigations.
Unfortunately, the current data available on child protection statistics only tells us how many children come into contact with child protection services. This data excludes cases where the abuse or neglect was not perpetrated by the parent, as these cases are considered police matters rather than child protection matters.
Many incidents of abuse go undetected and unreported due to the private nature of the crime, which means the number of victims would be significantly higher than what is reported.
The Australian Bureau of Statistics Personal Safety Survey
The Australian Bureau of Statistics undertakes the ‘Personal Safety Survey’ every 4 years, with the survey due to be completed this year. The data available from this survey tell us that sexual abuse is widespread.
In the 2016 Survey, it was recorded that over one in ten Australians aged 18 years or over (13% or 2.5million) have experienced abuse before the age of 15. This includes an estimated 1.6 million people who experienced physical abuse and 1.4 million who experienced sexual abuse.
Around one in six women, and just over one in ten men, experienced abuse before the age of 15.
There are still known gaps in the statistics with a significant number of cases going un-reported.
Queensland Statistics:

In 2018, children and young people between 0 and 24 years made up 71.5% of reported sexual assaults in Queensland (86% of these were female).
48% of reported male victims of sexual assaults in 2018 were boys aged under 15 years.
4 million people who are now adults experienced childhood sexual abuse.

Few instances are reported or prosecuted:

87% of women who experienced sexual assault by a male since the age of 15 did not report their most recent incident to police.

There needs to be a whole-of-government approach to supporting abuse victims.
The National Redress Scheme
In response to the Royal Commission into Institutional Responses to Child Sexual Abuse, the National Redress Scheme started on 1 July 2018 to provide support to victims who experienced institutional child sexual abuse.
The scheme is intended to run for 10 years and:

Acknowledges that many children were sexually abused in Australian institutions;
Holds institutions accountable for this abuse; and
Helps people who have experienced institutional child sexual abuse gain access to counselling, a direct personal response, and a Redress payment.

Unfortunately, not all institutions have joined the Scheme and sometimes it is not the best avenue for compensation and recognition. We often deal with the responsible institution directly and obtain a better result for our clients.
How can Attwood Marshall Lawyers help?
Everyone has the right to be safe from all types of abuse and neglect, and for children that includes being safe at home, at school and in the community.
There are no longer time limitations for child abuse victims to bring a claim and sue those responsible for the crime committed against them. This allows survivors of historical abuse the time they may need to come to terms with their experience and seek support and retribution when they are ready.
Each state and territory have differing laws in relation to abuse, which means the claims process is slightly different depending on the situation and your location.
Attwood Marshall Lawyers are here to support you through the entire process. We understand the magnitude of making a claim in this area and how confronting it can be to have to discuss your matter.
Our trained lawyers are here to listen to your story. We can help you understand your rights and will make the process of making a claim as stress free as possible.
We act on a “no win, no fee” basis, which means there will be no out of pocket expenses during the claims process, and if your claim isn’t successful you won’t have to pay our fees.
If you want an experienced and empathetic abuse claims Compensation Lawyer on your side, contact our team for a confidential and complimentary initial appointment. Call Compensation Law Department Manager, Kelli Costin, on 07 5506 8220 or email [email protected]
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While Australia slowly recovers from the hit of a worldwide pandemic and the worst recession in almost a century, first home buyers have been flocking to the Brisbane property market and open homes each weekend in the largest numbers the market has seen since the Global Financial Crisis (GFC) in 2007, explains Attwood Marshall Lawyers Property Lawyer, Raphaelle Worrall.
Home loan activity
According to the Reserve Bank Governor Philip Lowe, now is the time for first home buyers to jump on the property ladder as “interest rates are low and they’re going to stay low”.
The Australian Bureau of Statistics has reported a surge of first home buyer loans which were approved across the nation in October 2020. This was more than 30 percent higher than any month since March 2009, when home loan grants were tripled temporarily as part of the Australian Government’s response to the Global Financial Crisis.
Out of the 13,481 first-home buyer loans approved in October 2020, 3,310 were approved in Queensland alone.
First Home Buyer Loan Commitments in Queensland

Source: Australian Bureau of Statistics
Appetite for Brisbane Real Estate
Real estate agents around the Brisbane area have expressed views of never having seen the property market this competitive among first home buyers before. However, driven by ultra-low interest rates, evidently first home buyers have been given quite a bit of incentive to lunge into the property market.
BIS Oxford Economics Residential Property Prospects 2018-2021 report predicts that the Brisbane market will continue to grow modestly and the value of Brisbane properties will go up over the next two years. This is partly due to internal migration of people moving north from Sydney and Melbourne as well as general expected population growth.
Brisbane properties had already grown an average of 0.6 per cent in November 2020 and by 1.5 per cent over the past three months.
Top suburbs attracting first home buyers
Lending is up 39 per cent for first home buyers looking to secure their first property in Queensland. This is the strongest growth compared to any other State or Territory.
So, which areas are showing the strongest first home buyer lending activity in South-East Queensland?

Logan City, including Browns Plains – 4118 loans (+106% in lending)
Gold Coast, including Coomera – 4209 loans (+94% in lending)
Greater Springfield (Ipswich) 4300 loans (+67% = most lending)
Central Ipswich – 4305 loans (+93% in lending)
Ipswich, including Karrabin – 4306 loans (+58% in lending)
Brisbane, including North Lakes – 4509 loans (+99% in lending)

Prices tipped to rise in 2023
First home buyers are being encouraged to take advantage of property prices and interest rates within the next two years before expected price hikes hit. An independent report examined five-year projections for housing supply and demand in Australia and found there was limited time for first home buyers to capitalise on the softened housing market.
“From 2023 onwards a projected rapid recovery in demand coupled with a delayed supply will drive market under supply,” the report said.
The National Housing Finance and Investment Corporation (NHFIC) Chief Executive Officer Nathan Dal Bon said the excess housing supply forecast for 2021 and 2022 begins to reverse in 2023 and beyond, with new demand expected to exceed supply by over 100,000 between 2023 and 2025.
Government grants and incentives currently offered
Brisbane City Council: A 50 per cent rates rebate for eligible first home owners of up to $1000 or a 100 per cent rebate for those who build or buy a brand new home.
Queensland Government: A $15,000 grant to put towards buying or building a new house, unit or townhouse (valued at less than $750,000). The government also offers stamp duty concessions to some first buyers if the home is valued under $550,000.
Commonwealth: Scheme for eligible first home buyers to purchase or build a new home with a deposit of as little as 5 per cent as well as the ability to make contributions into your super fund to save for your first home.
HomeBuilder Grant: For building contracts signed between 1 January 2021 to 31 March 2021, a $15,000 grant is available to certain individuals who build a new home, buy an off the plan home, or substantially renovate an existing home. The grant cannot be used to buy an existing house and is limited to Australian citizens earning less than $125,000 or couples earning less than $200,000.
The value of new builds is capped at $950,000 for NSW, $850,000 for VIC and $750,000 for all other States and Territories. For renovations, the home must be worth less than $1.5 million before the renovation, and projects must cost between $150,000 and $750,000.
Key dates: The building contract must be signed between 1 January 2021 and 31 March 2021, and work must commence within six months of the contract date. Applications must be submitted by 14 April 2021.
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers is an experienced electronic conveyancing firm. We have an office in the Brisbane CBD, as well as offices at Robina Town Centre, Coolangatta, Sydney and Kingscliff. Our team can assist buyers with residential homes and investment properties in both Queensland and New South Wales.
Our experienced property team ensure first home buyers and property investors receive the most professional property law services when making their purchase.
To avoid risk or unnecessary delays, get the right legal advice by contacting our 24/7 phoneline on 1800 621 071 or contact Jess Kimpton, Property and Commercial Department Manager, on direct line 07 5506 8214, mobile 0403 452 459 or email [email protected]
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It’s that time of year when people start considering their New Year’s resolutions – and one that should be on everyone’s list is to get their Will and Enduring Power of Attorney done or updated. In fact, you should be getting this done BEFORE Christmas if you can! Wills and Estates Lawyer, Natalie Comerford, discusses why estate planning is so important and the top five reasons everyone should have a Will (and an Enduring Power of Attorney).
Introduction
In today’s economic environment it would be considered risky business if you chose not to insure your valuable assets, such as your home, your car, and even your life in some cases. It is even riskier not to have an estate plan in place to deal with the assets you have worked so hard to acquire throughout your life and to ensure these are left to your loved ones. You would think given the importance of properly looking after your assets and your family, that EVERYONE would have a Will. The truth is, well over 52% of people either don’t have a Will or haven’t updated it in a long time. No matter how big or small your estate may be, everyone over the age of 18 should have a Will.
Contrary to popular belief, your estate does not automatically go to your family after you die if you don’t have a Will. Failing to have an estate plan or a valid up to date Will in place can be very costly for your loved ones you leave behind, both financially and emotionally.
Enduring Powers of Attorney are often overlooked by many people when considering having their Will done or updated.  There is also an assumption that making a Will and appointing an Executor doubles as appointing someone as your attorney.  This is not right, and you must complete and sign a separate document in order to appoint someone, or a number of persons, to be your attorney.  Enduring Powers of Attorney usually come into operation when you lose capacity due to an injury or illness (e.g. if you have a stroke and do not have the mental capacity to look after your affairs).  If you lose mental capacity due to injury or illness and cannot look after your affairs, if you have not appointed someone as your attorney, your surviving spouse or family members may have to apply to QCAT or NCAT to be appointed. These Tribunals have been set up by the State Governments to make these decisions.  Unfortunately, there is no guarantee that your family members will be appointed and in many cases the Tribunals appoint the State Public Trust Office to act as your financial administrator and attorney.  This can cause many problems for your family.
Read more: Don’t blindly trust the Public Trustee – there are alternative options available
Read more: Families forced to take legal action against Public Trustees
Read more: Attwood Marshall Lawyers’ call for inquiry into NSW Trustee & Guardian backed by politicians
Here are the top 5 reasons you need to have a Will and an Enduring Power of Attorney.
Reason 1: Have your say – let everyone know what your wishes are
You get to have your say about who will inherit from you rather than the law taking over and making that decision for you.
Having a Will is the best way you can make sure that your family and children, or loved ones or charities, are taken care of after you pass away. If you die without a Will, the intestacy laws of the State or Territory where you live applies to your estate which is determined in a certain ‘running order’ depending on the relationship. For example, if you are married or in a de facto relationship, your surviving spouse and children are usually the main beneficiaries, but this is not always so. The law may not distribute your assets in the way you would like them to be distributed.
We live in an age that blended family structures are very common. When considering the intestacy rules in relation to blended families, many people prefer to tailor their Will to express their wishes reflecting their personal circumstances, rather than accept the “one-size fits all” option provided by the law. The other problem is when you are separated from your spouse but not yet divorced. If you die without being divorced, most of your assets will pass to your estranged spouse!
These days, most people have numerous assets with Superannuation, Life Assurance and employment entitlements often not considered. It’s important to plan carefully to ensure these assets are dealt with in the safest and most tax effective way. Getting proper estate planning advice from a lawyer who specialises in this area can also limit the prospect of someone claiming against your estate which again helps ensure your wishes are upheld.
Similar issues apply to who you want to appoint as your attorney in an Enduring Power of Attorney.  By completing the document and appointing the people who you want to be your attorneys and how you want them to handle your affairs ensures that everyone in your family knows your wishes in the event that you have lost capacity.  This can help avoid arguments between adult children and your spouse about what is to happen with your financial affairs and medical treatment.
Reason 2: Be in control as to who will look after your affairs after you are gone or if you lose mental capacity
You get to name an Executor and Trustee to administer your estate as opposed to having one appointed for you. An Executor is a term used to describe the person that you appoint in your Will to be entrusted with administering your estate. Your Executor has the task of managing and distributing your estate in accordance with your wishes outlined in your Will. This is a position of power and it is very important that you consider your options carefully when appointing the right person for this role.
When considering who to appoint as your Executor, you should ask yourself:

Is the person you have chosen willing to act in the role?
Are they trustworthy and have the skill set to be able to manage your estate effectively?
Do they have a good relationship with beneficiaries so as to minimise disputes between parties?
Will they obey the law and carry out the duties required of them in a timely manner?

If you do not have a Will the Court will appoint an administrator. An administrator has the same responsibilities as an Executor, however the key difference is that the Court will choose who manages and distributes your estate, instead of you making that decision for yourself. The best person for the job who you may wish to do this may not be who the Court chooses. Not to mention the delay and cost associated with processes that must be undertaken for an administrator to be appointed by the Court.
Being an Executor for someone’s estate can be a very complex and stressful role, especially if there is conflict within the family. An Executor can also have personal liability for certain debts of the Estate (e.g. tax to the ATO) if they are not careful. Sometimes, it may be better to consider appointing a professional to be your Executor or as a co-executor with a trusted family member to ensure your Estate is looked after properly. Attwood Marshall Lawyers are often appointed to act as Executor in estates for this purpose.
Appointing a professional to act as an Executor means that your estate will pay the reasonable costs of that person to act in that capacity.  However, most surviving family members engage lawyers to act on their behalf to obtain a Grant of Probate and complete the administration of the estate.  Accordingly, the appointment of a lawyer as an Executor or co-Executor does not necessarily increase the cost to the estate very much and ensures that your wishes are protected.
Once again, making a Will ensures who you have appointed carries out this very important function.
The same issues apply to your Enduring Power of Attorney.  You need to very carefully consider who you appoint as your attorney, or attorneys, when you complete your document. Your attorneys will step into your shoes in the event that you lose capacity to handle your own affairs both in relation to financial issues, where you live, and your medical treatment options.  For example, if you need to go into an aged care facility, your attorneys will need to handle this for you and make decisions about selling your house and obtaining proper financial planning advice and legal advice.
Many people only appoint one person to do this.  It is our experience that it is better to appoint a minimum of 2 people to handle your affairs.  This ensures that they “keep an eye on one another” and that the prospect of mismanagement or embezzlement is reduced.  You also have the option of appointing a professional to be an attorney or co-attorney with a trusted family member.  The downside of this is that it will cost for this person to act in that capacity, but the upside is that your assets and wishes are protected.
Reason 3: Protecting your children – appointing guardians for infant children  
For those of you who have infant children or children suffering from a disability, it is very important that you appoint trusted family or friends to take over the role of guardians of your surviving children.
All families are different and have complicated issues, but the appointment of guardians in your Will (and in your Enduring Power of Attorney) can help resolve disputes amongst your surviving family members as to who will have the care and control of your children after you die.
There are never any easy solutions in relation to this aspect of your Will. In many cases the parents of the children disagree over who they would like to look after their children in the event that something unexpected happens to one or both parents.  Having an updated Will that clearly sets out who you would prefer to be the guardians of your children can resolve any disputes within the family. It is a great opportunity for you to set out how you would like your children to be looked after.  This includes issues such as the school that they are to attend, the house that they are to live in and general details concerning their upbringing and financial support during their lifetime.
Likewise, the same issues apply to where you lose your mental capacity as a result of injury or illness.  You are still alive and life goes on for your children – therefore your attorneys need to be able to step in to handle your affairs if you are unable to do so.  The appointment of guardians in your Enduring Power of Attorney will also resolve any disagreements amongst your family as to who is going to look after the children and your financial affairs generally.  It will also help prevent a Tribunal referring the handling of your affairs to a State Government Public Trust Office.
Reason 4: Save your family from legal costs and emotional turmoil
Having your estate planning and legal documents in order can potentially save huge amounts of money wasted on legal costs and the inevitable emotional turmoil that goes with resolving disputes through the courts or through lawyers. There are many cases involving people who die without a Will or leave a badly drafted do it yourself Will kit.  In either of these cases, your surviving family members will need to apply to the court as an administrator of the estate or alternatively, apply to the court for Orders concerning a do it yourself Will.  Court applications can be very expensive for the legal costs incurred by the estate and if there are disputes between the beneficiaries, this can potentially lead to hundreds of thousands of dollars being spent by the estate to sort out these issues.
The same issues apply to having a current and valid Enduring Power of Attorney.  This ensures that your wishes are upheld in relation to who you would like to handle your financial and medical affairs in the event that you lose capacity.  Disputes concerning who should be appointed as your attorney and/or the administrators in an estate can often lead to Tribunals referring the handling of your affairs to the Public Trust Office.  Your family members would certainly rue the day that the Government Public Trust Office was appointed for your estate or for your ongoing financial management in the capacity as an attorney.
Reason 5: Make things easier for your surviving family or loved ones
It is one of the most stressful things to lose your spouse, parent or grandparent unexpectedly.  Imagine if your loved one dies without a Will and you then have to deal with the various Government agencies, banks, service providers and the multitude of other issues which arise after someone dies.
You may have already experienced this when you attempt to change details for a telephone account, Foxtel, Centrelink, Medicare or other agencies and providers that we deal with on a day to day basis.  If someone has passed away or has lost capacity, these agencies refuse to deal with you based on “privacy concerns” or unless you can demonstrate to them that you have the legal basis for operating on that person’s behalf.
You can imagine your surviving family member or loved one attempting to deal with these providers and Government agencies hot on the heels of the emotional distress of your death. They will experience similar issues in the event that you unexpectedly lose capacity to handle your financial and medical affairs.  Your surviving loved ones will face the same issues dealing with your treating doctors, dentists and hospitals.  If you require urgent medical treatment or an operation, the doctors and hospitals will often not proceed with the treatment unless the paperwork has been signed by your duly appointed attorneys.  Likewise, in the event of your death, Government agencies and providers will not deal with anyone other than your duly appointed Executor.  If there is no Will or Enduring Power of Attorney, this causes huge difficulties for your surviving loved ones as they cannot do anything until someone is appointed as your attorney if you lose capacity and similar issues arise if there is no Will.
All Government agencies and treatment providers will require a certified copy of the Will and your Death Certificate before they will even engage in any dealings with your family. It is therefore very important that even if you do not wish to make a Will and Enduring Power of Attorney for your own purposes, consider what your surviving loved ones will go through if you do not spend the time to have these documents prepared.
Read more: Estate Planning 101
Read more: Enduring Power of Attorney – be aware of changes coming
Read more: Don’t blindly trust the Public Trustee – there are alternative options available
We want you to have peace of mind this Christmas
During the month of December, Attwood Marshall Lawyers are offering 50% OFF their simple Will and Enduring Power of Attorney Package! Start the new year with peace of mind that your most important legal affairs are in order.
As a leading estate planning firm, Attwood Marshall Lawyers take a holistic approach to your estate planning needs. Your documents will be prepared by an experienced lawyer who practices exclusively in the area of Wills and Estate Planning.

Book your appointment with our friendly team by contacting Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, mobile 0423 772 555 or email [email protected] and be sure to mention the 50% off promotion.
The post Five Reasons you need to have a Will and Enduring Power of Attorney appeared first on Attwood Marshall.

Most people will be familiar with the term “no win no fee” and that it relates to lawyers acting on someone’s behalf without charging them. As with most legal terms, many people are mistaken as to how this type of retainer actually works and the issue of how legal costs are calculated. Attwood Marshall Lawyers Legal Practice Director Jeff Garrett explains the “no win, no fee” agreement in his latest interview with Steve Stuttle on Radio 4CRB.

Attwood Marshall Lawyers · Law Talks – Jeff Garrett – No Win No Fee
What is “No Win No Fee”?
While there are various versions of “no win no fee” agreements, the most common arrangement is where you engage a lawyer to act on your behalf where the lawyer will only get paid the fees that you have agreed to pay the lawyer if you “win” your case. If you lose your case, the lawyer won’t charge you for the work that has been done or the expenses that have been paid on your behalf (if this is what you have agreed to with your lawyer – sometimes you have to pay the expenses or disbursements).  You would think that such an arrangement is relatively straightforward, however, nothing could be further from the truth!
The most common case where a lawyer acts on behalf of a client on a “no win no fee” basis is in a personal injuries claim. For example, if you are involved in a car accident and suffer injuries, you can usually engage a lawyer to act on your behalf on a “no win no fee” basis.
In most cases, the lawyer will act on your behalf in relation to the claim including spending any money that is necessary to obtain medical and expert reports which might be required to prove your case.
Most motor vehicle accidents are straightforward, and it is fairly easy to work out who was at fault. To succeed in a case involving an accident, you need to establish that the accident was caused due to the negligence of the other driver or the driver of the vehicle in which you are a passenger. Pedestrians can also claim against a driver at fault and it is rare that pedestrians are held to be liable.
Prior to a lawyer taking on your case, they are bound by law to provide you with a disclosure document and costs agreement.  This agreement sets out the basis upon which the lawyer will calculate their fees that they are going to charge you.  Lawyers are not allowed to charge a percentage of claims as is the case in the USA.  There are various ways that a lawyer charges, including hourly rates, lump sum fee agreements, and item charges based on the relevant court scale (or a combination of these options).  In many cases lawyers who accept cases on a “no win no fee” basis impose a contingency fee or “uplift fee” which is capped at no more than 25% of the total of the professional costs charged (not including the disbursements).
Disbursements and Outlays
While some firms agree to pay all of the report fees, court filing fees and expert report fees on behalf of their client, many lawyers (including the larger firms) take out a “litigation loan” from a financier to effectively borrow money at commercial rates to pay for these expenses.
Quite often the interest rates are very high and matters can take quite some time to settle which means that the interest bill will be charged on top of the usual fees. It is also important to be very clear about if you lose the case who is going to pay for these disbursements.  In many cases the agreement provides that the client is to pay for these expenses in the event that the case does not succeed, or you receive an amount which is less than what you expected.
NB: Attwood Marshall Lawyers don’t take out loans and normally cover all the disbursements and outlays on cases accepted on a ‘no win no fee’ basis.
What is the definition of “win” and what happens if you don’t receive enough for your claim to cover all the costs?
Normally the definition of a “win” is that you obtain an award of damages or you settle your case for an agreed amount of money.  In cases where liability is not in dispute, the injuries are severe and the impact on the client’s life is significant, there is usually no question about the amount of damages being recovered being enough to provide compensation to the client as well as cover the legal costs and disbursements to the lawyer.
In cases where liability is contested or where the damages awarded are not as high as is expected (perhaps due to pre-existing conditions etc.), the law in Queensland protects clients by applying the “50/50 rule”.  This basically states that the lawyer cannot charge you any more than 50% of the damages that you recover in the case (but only if the agreed costs exceed 50% of your damages award).  Many people confuse this law by thinking that lawyers are entitled to automatically charge 50% of your damages award in Queensland.  This is not the case. The 50/50 rule only applies in the cases where the legal costs exceed 50% of your settlement amount or your damages award. This can happen due to a number of reasons, but most cases don’t attract the operation of this rule.
One of the main problems is that clients do not properly understand the costs agreement that they are entering into. It is very important that they understand the method of charging and  the estimate of costs that is provided to them by their lawyer.  Usually the costs will be higher if the matter is complex and involves a significant amount of time and effort being spent on the case. If the matter does not settle at mediation and goes to court, the costs can reach hundreds of thousands of dollars.  Thankfully, the vast majority of cases settle at mediation in most personal injury cases and only a very small percentage make their way into court.
Should I enter into a “no win no fee” agreement?
For many people they have no choice except to engage a lawyer who provides a “no win no fee” service.  The legal costs of pursuing a claim and being represented by a lawyer are usually very high and many people simply cannot afford to pay these costs up front or to pay for the disbursements required for medical report fees and expert’s reports.
The lawyers who act on a “no win no fee” basis perform a very important function of allowing everyone the right to access justice in our Court systems.  Many people do not qualify for Legal Aid and the types of claims that are covered by the scheme are very limited.  Accordingly, “no win no fee” lawyers perform an extremely important function in our society, although they are often attacked by governments and insurance companies for providing this service.  It is little wonder that the government and insurance companies are the ones who have to payout these claims where “no win no fee” lawyers act and therefore seek to make things as difficult as possible for the injured claimants and their lawyers.  If it were not for the lawyers being prepared to do this, many people would be unable to obtain justice for their claims.
Types of cases where “no win no fee” arrangements apply
Personal injury matters
Most personal injury claims are accepted on a “no win no fee” basis.  This is because the injured person is entitled to compensation and quite often some component of the legal costs are recovered as part of their process.  The lawyer takes on the case on the basis that they will be paid when the claim has been successfully concluded and paid for by the government department or insurance company responsible.
Insurance Companies and Government agencies
There are other types of compensation claims generally against insurance companies and governments that can be taken on a “no win no fee” basis.  For example, if a person’s house burns down and the claim is denied by the insurance company (which often happens), you may need the assistance of a “no win no fee” lawyer to force the insurance company to payout on the policy. Similarly, there are many policies where insurance companies refuse to indemnify the customer and quite often legal proceedings are needed to extract the money for the claim out of the insurance company.
Another increasing area is the mismanagement and negligence by the State Government Public Trustees around Australia.  Although these government instrumentalities are responsible for looking after minors who are not old enough to conduct their own affairs, people who have a disability or lack mental capacity to conduct their own affairs, and elderly people who have lost capacity due to dementia, they are regularly involved in the gross negligence and/or mismanagement of the financial affairs for these people.
Most government instrumentalities deny any liability and the families of the affected people are forced to take proceedings against them for compensation and to have them removed as the financial managers.  Although this is a more specialised area of law and only some firms agree to take these matters on a “no win no fee” basis (such as our firm), it is becoming an ever increasing area of litigation and most families do not have the financial resources to pay lawyers to act on their behalf.
Commercial litigation matters – Banks, Financial Planners & Professionals
The types of commercial litigation that lawyers will accept on a “no win no fee” basis are fairly limited. Usually commercial litigation is far riskier than running a compensation case for a personal injuries claim. In commercial litigation matters there is no guarantee that you are going to receive the damages claimed or that the person or company you are suing will have the money to pay the judgment even if you are successful.
However, there are certain cases that we regularly accept instructions on a “no win no fee” basis against banks, financial planners, accountants and other professionals.  Once again, these cases need to be looked at very carefully in terms of whether they have prospects of success, but usually if the client’s financial circumstances means they are unable to afford paying for a lawyer to take these proceedings on their behalf, we will always look carefully at these cases and, where appropriate, take them on a “no win no fee” basis.
Cases against the banks and their inhouse financial planners for negligent advice are far more prevalent after the Banking Royal Commission and we regularly accept instructions in these cases on a ‘no win no fee basis’. Likewise, actions for losses suffered as a result of professional negligence by financial planners, accountants, lawyers, and other professionals are regularly accepted on the same basis, subject to the usual preconditions of the client having reasonable prospects of success in their claim, including payment. In most of these cases there is a professional indemnity insurer who can pay even if the professional ceases operating or dies.
Contesting Wills
There are many lawyers who accept instructions to contest the validity of Wills and/or to bring a provision claim against the estate in circumstances where someone has been left out of or not properly provided for in a Will.  This is a very specialised area that only certain lawyers accept (we are one of them) and, once again, the usual pre-condition is that the client has reasonable prospects of succeeding in a claim against the estate. There also needs to be sufficient assets in the estate to pay any claim that may be awarded (including legal costs).
Difference between “no win no fee” and pro bono
Many people confuse the terms “no win no fee” and pro bono.  While “no win no fee” is taking on a case subject to being successful and obtaining damages or a payment as the pre-condition to charging, if a lawyer takes a matter on a pro bono basis they usually do not charge anything to act on the matter.
While some of the larger firms do a certain percentage of pro bono cases, it is becoming increasingly difficult for lawyers to act on a pro bono basis.  Lawyers are the same as other business owners and have expenses to pay.  If they are taking on “no win no fee” cases which can take years to result in a judgment and costs to be paid, it is very difficult for some lawyers to fit in doing true pro bono work as well as the “no win no fee” cases.
There are many community and government funded legal centres that take on pro bono cases. There are many lawyers who take on pro bono cases on a selective basis and sometimes it is worth asking whether the matter can be done on this basis if a “no win no fee” arrangement is not available.
When is “no win no fee” available?
If there is a case for damages against an insurance company, bank, a professional with indemnity insurance or the State or Federal governments, lawyers will normally take these cases on a “no win no fee” basis.  Criminal cases would not be eligible (even if you “win” and get acquitted, it is very difficult to obtain legal costs from the Crown).  Normal conveyancing matters, property transfers, Wills and other run of the mill legal work cannot be taken on a “no win no fee” basis as there is no compensation payable down the track.
How can Attwood Marshall Lawyers help?
We are committed to providing you with affordable solutions in order to resolve your matter as quickly as possible. Our team communicate clearly and effectively so that you know where you stand up front. We want to support you in your journey for justice and will advocate and fight for your rights and ensure you have the legal representation you deserve.
Whether you are making a workers’ compensation claim, claiming compensation for someone’s professional negligence, or contesting a Will and trying to bring a provision claim against an estate, we are one of the specialised law firms who can take eligible cases on a “no win no fee” basis*. Our “no win, no fee” guarantee will ensure you don’t need to put your hand in your pocket to get your claim underway.
For trusted legal advice, contact 1800 621 071. We can arrange an initial appointment by telephone, video conference, or in person at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Sydney or Melbourne.
 
*To view our No Win, No Fee terms and conditions, click here.
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It is important to understand how changes made by the New South Wales Parliament to foreign land tax and duty surcharges will impact Trust Deeds. Attwood Marshall Lawyers Property and Commercial Partner, Barry van Heerden, explains why you must urgently review your Trust Deeds prior to 31 December 2020 to avoid paying unnecessary surcharges in the new year.
Buying property in a Trust
Trusts are commonly used for investment and business purposes. Most Trusts are drafted to provide for a wide range of beneficiaries, some of whom may be foreigners as defined in the Foreign Acquisitions & Takeovers Act 1975 (Cth). There can be many benefits of buying property in a Trust including:

Asset protection: If the property is owned by a Trust, not an individual, there can be a benefit for people in certain businesses, professions or occupations who have a high risk of being sued. Buying property through a Trust can also protect this asset in the event you face bankruptcy, although this depends upon the provisions of the trust deed and who has effective control.
Estate planning: A Trust can be a simple way to hand down properties to children without the need for capital gains tax or stamp duty, although sometimes the better way may be to create testamentary trusts in your Will;
Tax advantages: The trustee can distribute or split the trust’s income between the trust beneficiaries in the most tax-effective way.

It is this last benefit that we need to highlight as the ATO’s deadline looms. A single foreign beneficiary is enough to cause an entire trust to be considered foreign and in turn be burdened with the full surcharges applicable. For many Australian trusts, the beneficiaries or people who set up the trusts may not be aware that they may be subject to significant tax and duty surcharge liabilities as a result of beneficiaries being deemed to be ‘foreigners’ and not specifically excluding foreign persons from the trust.
Amendments to Legislation
The State Revenue Legislation Further Amendment Bill 2020 was brought in to address anomalies in revenue legislation, close tax loopholes and align the technicality of certain New South Wales revenue legislation with the laws of other jurisdictions.
The ATO decided to increase the duty payable in purchasing of a property by a Trust, and land tax payable on property in the name of a Trust, where the Trust can be deemed a ‘foreign Trust’ due to the possibility that any of the beneficiaries may be a foreigner.
This decision came after the NSW Parliament passed the State Revenue Legislation.
From 21 June 2016, foreign persons became liable to pay a surcharge purchaser duty (currently 8% of the market value of the property) on the acquisition of residential property in NSW. In addition, a surcharge land tax (currently 2% of the unimproved value of the land) for any residential property is also applicable.
New South Wales
In New South Wales, the Trust will be deemed a foreign Trust unless the Trust Deed contains specific clauses to exclude all beneficiaries which may be classified as foreigners.
It is therefore advisable to amend any Trust Deed where the trust owns property in New South Wales. The amendment should exclude foreign beneficiaries from any distributions from the Trust and prevent any amendment to the exclusion of foreign persons as beneficiaries, so that the exclusion is permanent or irrevocable.
The ATO has put a deadline of 31 December 2020 in place for parties to amend their Trust Deeds accordingly.
If you do not review and update your Trust Deed and it is deemed a foreign trust, a surcharge duty of 8% along with surcharge land tax of 2% will be payable on any residential land in New South Wales acquired or owned by the trust.
Queensland
In Queensland, a Trust is not necessarily deemed a foreign Trust only because one of its beneficiaries may be a foreign person.
The Commissioner of State Revenue will consider each Trust and specifically the following:

The likelihood of distribution to a foreign person; and
The terms of the Trust Deed which concern any priority or proportion for sharing between default beneficiaries.

Even though it is therefore not necessary to amend your Trust Deed in Queensland, we would strongly recommend you attend to these amendments to avoid any disputes with the Commissioner.
How can Attwood Marshall Lawyers help?
Our expert Property and Commercial lawyers can help you review your Trust Deed to satisfy the foreign person exclusion requirements to ensure you meet the ATO’s deadline. It is important you contact our team as soon as possible as there is only a small window of opportunity remaining to make these changes.
Please contact our Property & Commercial Department Manager, Jess Kimpton, on email [email protected] or direct line 07 5506 8214 should you require any assistance. We can discuss any of your property or commercial matters by telephone, video conference, or in person at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Sydney or Melbourne.
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The New South Wales Court of Appeal has ruled in favour of insurance policy holders who were denied cover by Suncorp, IAG and QBE after their businesses had experienced significant interruption due to COVID-19. Attwood Marshall Lawyers Commercial Litigation Lawyer, Georgia Taylor, discusses how reading the fine print in insurance policies can pay off.
A win for small business
In another stand out case for dodgy insurance, Suncorp, Insurance Australia Group (IAG) and QBE Insurance are being defeated by their own insurance policies in a win for small business.
We’ve all heard the ‘old ‘wives’ tale’ that you must “always read the fine print” however, for lawyers this has always been fact and not fiction. The stories are far from few, where an ordinary consumer has taken on a goliath and won because of a misspelt, poorly drafted contractual clause, or in the case for IAG, QBE Insurance and Suncorp, an outdated policy.
There is no question that 2020 has been a tough year for small business. Unfortunately, for the consumers who held insurance policies with Suncorp, IAG and QBE Insurance, their losses were exacerbated by finding out that their business disruption claims were denied.
A recent survey by CGU Insurance found that 1 in 4 small businesses would not survive if they had to close their doors for three months and further, more than a quarter of small business would need to close their doors for good because of a natural disaster. This survey highlighted the importance of business interruption insurance which is why it is commonly included and should be always recommended when setting up your business. Unfortunately, 2020 has highlighted the need more than ever before for this specific coverage.
Business interruption insurance is self-explanatory, if your business is interrupted it often guarantees the continuity of income to help you stay solvent. Common areas of this insurance include, paying key staff, paying ongoing expenses such as rent, suppliers, or loan repayments and the purchase of new equipment if the claimable event allows for it.  Of course, in a global pandemic no insurance could be more valuable, and this is where the fine print steps in.
A case of outdated insurance policies
For those insured with Suncorp, IAG and QBE Insurance, the denial of their insurance claim was based on an outdated exclusion that says that the insurer will not cover claims arising from a ‘quarantinable disease’ under the Quarantine Act 1908 “and subsequent amendments”. Fortunately for consumers, the Quarantine Act 1908 is now repealed, which means that it is no longer in effect. It was however replaced by the Biosecurity Act 2015. An astute insurer would have made a slight amendment to its policy to include the new Act. Instead, Suncorp, IAG and QBE Insurance relied on the existing wording “and subsequent amendments” to deny all business interruption claims and argued to the Court that the wording should be “construed” to reference a listed human disease under the Biosecurity Act 2015.
The full bench (five judges) presiding over the New South Wales Court of Appeal unanimously decided in favour of the policy holders and ruled against the insurers by reading the clause literally and ruled that “COVID-19 is not a disease declared to be a quarantinable under the Quarantine Act 1908 (Cth)” and therefore the exclusion did not apply.
It is now estimated that Suncorp, IAG and QBE Insurance will need to pay over $500 million for business interruption to its policy holders.
This test case lost by HDI Global Specialty will set an interpretation precedent for insurance policies alike highlighting again, that you should always read the fine print.
How can Attwood Marshall Lawyers help?
We want to help you resolve your disputes and take away the stress in your life, no matter who you are coming up against. If your business has been impacted by COVID-19 and you are battling your insurance provider, who should be assisting you through this difficult time, you have a legal right to take your complaint further.  For those who have suffered a large loss due to a financial institution, court action may be your only avenue to seek compensation for your loss. In some cases, we may be able to represent you in an informal mediation process with insurance companies. Our experienced Commercial Litigation team can help determine your right to compensation and in many cases represent you on a “no-win-no-fee” basis*.
For more information or to discuss your circumstances, please contact our Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email [email protected] or free call 1800 621 071.
*Only to approved cases where there is genuine financial hardship and claims have a good prospect of success over a financial threshold. Terms and conditions apply. 
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Liquidators have reputations for being aggressive, money-hungry and heartless. Attwood Marshall Lawyers Commercial Litigation Senior Associate and Law Society Accredited Specialist in Dispute Resolution, Charles Lethbridge, gives his insight into how business owners can navigate looming insolvency – and how to formulate a recovery plan with less-stress.
 
COVID-19 support packages for businesses coming to an end
In the early stages of the COVID-19 pandemic, the Morrison government implemented a number of laws to protect companies and individuals who had been, or who may be, impacted financially by the pandemic. These included, but are not limited to, relief for commercial tenants whereby a temporary hold on evictions and a mandatory code of conduct for commercial tenancies was rolled out. For businesses eligible to access JobKeeper, these payments allowed businesses to continue paying their employees or themselves as a sole trader. Temporary increases to the threshold at which creditors could issue a statutory demand on a company and the time companies had to respond to statutory demands they received were implemented. Measures to provide temporary relief from director’s personal liability for trading while insolvent were also activated.
The government’s temporary relief packages are about to end. As a law firm consisting of experienced insolvency lawyers, with a history spanning more than 7 decades assisting individuals and small to medium sized businesses since World War II, we understand better than anyone in Australia the ramifications of liquidation and bankruptcy and the impact it has on people’s lives and their families lives.
For many businesses, insolvency is looming
For most people, insolvency (not being able to pay debts as and when they fall due) can be a terrifying experience. The unknowns associated with liquidation and bankruptcy can be equally terrifying.
Liquidators and bankruptcy trustees have reputations for being aggressive, money hungry bad guys, and unfortunately there is a lot of truth to that notion. However, at Attwood Marshall Lawyers, in keeping with our primary goal which is to help people, we don’t work with liquidators or bankruptcy trustees who are like that. Believe it or not, there are liquidators and bankruptcy trustees who care about people and who want to help them through what is often the most difficult period of their lives.
We have extremely close relationships with a number of insolvency practitioners who operate in line with our core values and together we guide individuals and companies through insolvency, whether that means assisting businesses to develop resilience and strategies with a view to staving off liquidation and bankruptcy, or working with liquidators and bankruptcy trustees to assist people through the insolvency process. We work through these processes without the aggression and enormous costs liquidators and trustees are renowned for.
Avoiding liquidation or bankruptcy – alternative solutions
There are various informal solutions which can be implemented with your creditors with a view to avoid liquidation or bankruptcy. These include:

Informal arrangements and settlements with creditors;
ATO payment arrangements;
Debt restructuring;
Business turnaround strategies.

Via skilled negotiation, Attwood Marshall Lawyers regularly assist clients to generate viable options for settling with creditors on terms that all parties ultimately benefit from. Many people don’t appreciate that when a company goes into liquidation, or if a person becomes bankrupt, those businesses can no longer operate and therefore they can’t make money to pay creditors! Often liquidation and bankruptcy benefits no one.
In addition to an informal option, there are more formal solutions also available to businesses, including:
Safe Harbour:
In 2017, the Federal government passed legislation to provide support and assurance for company directors in circumstances where a genuine opportunity to turn around a business exists, but in circumstances where directors are concerned that while assessing the business’ options they are exposed to personal liability for insolvent trading. The ‘safe harbour’ regime’s purpose is to give company directors an opportunity to seek proper advice, to develop and implement an action plan to achieve a better outcome for the company and its creditors; as opposed to simply shutting down the company and appointing an administrator or liquidator.
A range of criteria must be met to be able to take advantage of the safe harbour regimes protections.
Voluntary Administration:
The voluntary administration process is designed to assist an insolvent company satisfy its debts by ensuring that it can either come to a formal arrangement with its creditors to pay those debts through a Deed of Company Arrangement (DOCA) or by being placed into liquidation, quickly and inexpensively. This process maximises the chances of a company continuing to exist by giving it an opportunity to do a deal with its creditors.
Other formal solutions include:

Liquidation; and
A members voluntary winding up.

Liquidation is a process to formally wind up a company’s affairs. That can be done voluntarily by the company’s members with a view to liquidating company assets to satisfy outstanding debts, or a company can be ordered into liquidation by a Court at the petition of a creditor. Unfortunately, sometimes liquidation and bankruptcy are the only option.
How can Attwood Marshall Lawyers help?
In conjunction with insolvency practitioners, our lawyers can assist clients to mitigate the risks associated with insolvent trading, director’s liabilities and director penalty notices.
Critically, placing a company into liquidation (or for an individual, entering into bankruptcy) gives people the fresh start they need. All of your debts are wiped! This has the effect of eliminating stress and no longer having to live with the negative and unhealthy emotional burdens associated with a stressed or failing business.
Liquidation and bankruptcy doesn’t have to be the horrifying experience that governments and media make it out to be. With assistance from professionals who care about people and what they are going through, liquidation and bankruptcy can be a stress-free, affordable and liberating experience.
At Attwood Marshall Lawyers, we specialise in eliminating stress from peoples’ lives, in fact that is our primary goal – we want to help take the weight off your shoulders. If you need an experienced team on your side to help navigate business and commercial matters, we can guide you and your business towards a successful outcome. Contact Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, mobile 0425 260 837 or email [email protected]
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Feedback provided to the Voluntary Assisted Dying Review Board over the past six months has highlighted the compassion and relief Victoria’s voluntary assisted dying scheme is providing to terminally ill people and their loved ones. Queensland looks to be next to introduce euthanasia laws with Premier Annastacia Palaszcuk’s election campaign promise putting a bill before Parliament as early as February 2021. Legal Practice Director Jeff Garrett discusses this contentious area of law and how individuals and families can be empowered to consider all the options available to them.
 

Attwood Marshall Lawyers · Legal Practice Director, Jeff Garrett, discussing Euthanasia – December 2020
Introduction
Voluntary assisted dying, or euthanasia, involves a process to access medication to enable a person to legally choose the manner and timing of their death. This process forms part of a commitment to end your own life and is only currently available to eligible terminally ill patients in Victoria.
Western Australia has passed legislation which enables voluntary assisted dying to become a choice and is expected to come into effect 1 July 2021.
More than 5000 public submissions were made, and 41 public meetings held across Queensland in 2019 as the state considered the legislation of euthanasia. Now, with a 15-month parliamentary committee report prepared, voluntary assisted dying will be addressed by the new Parliament in the new year as part of the Queensland Labor Government’s re-election promise to legalize euthanasia. The right to die is also on the agenda in Liberal-governed South Australia and Tasmania
Many people have strong views on the topic, whether it be opposing euthanasia on the grounds of personal or religious beliefs, or strongly supporting it for the sake of compassion. Any family who has gone through the process of having a parent or grandparent who has a terminal illness and has suffered terribly, would be the first to put their hand up to say if voluntary euthanasia was available to them, they would have opted for it.
Eligibility for Euthanasia in Victoria
Medical Practitioners, the Secretary of DHHS and the Voluntary Assisted Dying Review Board all play important roles and have responsibilities defined within Victoria’s Voluntary Assisted Dying Act (2017). It’s a strict process and it can take time.
In Victoria the criteria for eligibility for euthanasia is as follows:

You need to have a terminal illness;
There must be no argument that you are going to die as a result of that illness or condition within 6 months, or 12 months for a neurodegenerative condition;
You need to have certification from at least two of your treating doctors;
You need to have a psychological assessment to confirm that you understand the issues and that you are intent on going ahead;
An application needs to be made to the Victorian Assisted Dying Review Board and you need to say “yes” to the application at least twice; and then
The Victorian Assisted Dying Review Board needs to approve the application.

By law, the Board is required to report to Parliament every six months for the first two years this legislation has been enacted. The next report will be tabled by February 2021 and will cover the reporting period 1 July 2020 to 31 December 2020.
There have been a few complaints made relating to the time it can take to process these types of applications. There are a number of cases where it has taken so long that the person requesting euthanasia loses capacity by the time the approval comes through. One of the conditions is that whatever medication you take to end your life you must take yourself. You cannot have anyone else administer the medication. You can imagine there have been some cases where people have deteriorated from the date of their application and for whatever reason can’t administer their own medication to end their life, and this has caused significant stress to all impacted.
In a  report to the Victorian State Parliament earlier this year, the Voluntary Assisted Dying Review Board  found there were no cases where someone had died incorrectly, changed their mind, or anyone was found to have been unduly influenced. So far, the Victorian experience has been a success and certainly paves the way for other states to follow in their footsteps.
Legal issues
There are legal issues which stem from making the decisions to end your life. People have insurance policies, including superannuation with a Total and Permanent Disablement (TPD) or Death component attached to their policy. There are some policies which exclude suicide as a cause of death and in these cases the fund would not payout any entitlements to their member or member’s nominated beneficiaries. As euthanasia is voluntary assisted dying, this is a grey area with little distinction for superannuation and insurance providers to differentiate euthanasia from suicide.
The government needs to enact legislation to make voluntary assisted dying, for those who are eligible, legal. In doing so, these issues will not arise and there will be a clear distinction between suicide and euthanasia. This raises a potential constitutional clash between the states and the Commonwealth, with the current federal coalition government unlikely to enact legislation approving euthanasia. Indeed, the federal government overturned euthanasia laws in the ACT and Northern Territory. Inevitably, the issue of politics will continue to intervene in this very polarised area, and it will most likely take a change of government for these laws to be uniform across Australia.
Planning your end of life care
For Victorians suffering from a terminal illness, with less than six months to live, The Voluntary Assisted Dying Act (2017) provides a safe legal framework to choose the manner and timing of their death.
For citizens in any other state or territory, the closest you will get to planning your end of life care is by making an Advance Health Directive, an Enduring Power of Attorney, and of course ensuring you have an up-to-date Will so your estate and assets can be passed on as you wish when that time comes. These documents also exist to regulate the withholding or withdrawing of medical treatment.
It is impossible to know what will happen in the future concerning your health. You might have firm ideas about how you want to live the rest of your life and what measures you want taken as you approach your end of life care, and it is important to document these properly.
Advance Health Directive (AHD) in Queensland
The purpose of an Advance Health Directive is to give you confidence that your wishes regarding health care will be carried out if you cannot speak for yourself.
You cannot request euthanasia in an Advanced Health Directive – this would be in breach of the law. Under the Queensland Criminal Code, it is a criminal offence to accelerate the death of a person by an act or omission.  It is also an offence to assist another person to commit suicide.
In an Advance Health Directive, you can make choices in relation to:

Not wanting to be resuscitated;
Not wanting life to be prolonged by using medication other than for your comfort (each state and territory has enacted laws to regulate the act of withholding or withdrawing medical treatment with the effect of hastening death);
Instructions for your family regarding life support;
Personal choices about aged care facility placement or living arrangements as your health deteriorates;
Religious or cultural beliefs regarding certain treatment options;
Choices regarding if you would like your body to be donated to science.

To be able to make an Advance Health Directive you must be over 18 years of age and have decision-making capacity.
An Advance Health Directive will clearly inform your appointed decision-maker of your wishes and values that need to be considered before medical treatment decisions are made on your behalf.
You may wish your Advance Health Directive to apply at any time when you are unable to make decisions for yourself, or you may choose for it to only apply if you are terminally ill.
Each state and territory have slightly different legislation and documents in place which serve to plan your advanced care. In New South Wales, the document you would need to make is called an Advance Care Directive. An Advance Care Directive is often also referred to as a Living Will.
It is recommended that you review these document every two years, or if/when there is a major change in your health status (e.g. if you are diagnosed with a serious illness).
Appointing an Enduring Guardian
Guardians appointed through Enduring Guardian (EG) and Enduring Power of Attorney documents (EPOA), or Administrators appointed by Queensland Civil and Administrative Tribunal (QCAT), can make personal, health, medical and financial decisions on the behalf of a person who has lost capacity.
A person of any age can lose capacity with a mental illness, brain injury, dementia or other condition. A Guardian can make health and welfare decisions for a person, including consenting to medical treatment on your behalf, but only if are unable to make those decisions for yourself.
There have been some significant changes rolled out in Queensland as of 30 November 2020 to guardianship laws and forms. To find out more about the changes, click here.
How can Attwood Marshall Lawyers help?
We’re here to help you achieve peace of mind that if anything suddenly changes with your health or personal circumstances, you have your legal affairs in order and your best interests will be taken care of. Attwood Marshall Lawyers have a team of lawyers who practice exclusively in this area. They can consider what legal documents you should put in place and how those documents should be structured to suit your individual needs.
Read more: Estate Planning 101
Read more: Appointing Guardians and Attorneys
For a free 20-minute initial estate planning review please call anytime on 1800 621 071. Contact Wills and Estates Department Manager, Donna Tolley, directly on 07 5506 8241, mobile 0423 772 555 or email [email protected]
We can arrange this review by telephone, video conference, or in person at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Sydney or Melbourne.
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