In order to improve consistency across all jurisdictions, changes to Enduring Powers of Attorney laws will come into play in Queensland on 30 November 2020. This presents an opportunity for everyone to review their existing documents, or for those who have not made an Enduring Power of Attorney, to understand why these are imperative to make, explains Attwood Marshall Lawyers Senior Associate Hayley Condon.

Attwood Marshall Lawyers · Senior Associate Hayley Condon – Changes to EPOA Forms
Introduction
There have been some major changes to Enduring Power of Attorney and Advanced Health Directive forms, along with amendments to the Powers of Attorney Act 1998 (QLD), brought in by the Guardianship and Administration and Other Legislation Amendment Act 2019 (Qld) (Amendment Act). These changes come into effect on 30 November 2020. For those who have not yet put an Enduring Power of Attorney in place, now is the time. If you are over 18 and have decision-making capacity, you can and should be making an Enduring Power of Attorney.
Reviewing your Enduring Power of Attorney documents may seem like a mundane task you want to put at the bottom of the pile, however it’s important especially with changes to legislation coming into effect. Reviewing these documents gives you an opportunity to ensure you have appointed the most appropriate attorneys to act for you who will look after your best interests.
For anyone without an Enduring Power of Attorney, these changes are a great reminder as to why it is important to make one and ensure your legal affairs are in order in the event something unexpected happens.
What is an Enduring Power of Attorney (EPOA)?
An Enduring Power of Attorney is a document that an adult can put in place while they have mental capacity to appoint people, called their attorneys, to make financial as well as health care/lifestyle decisions for them in the event they lose the mental capacity to be able to make those types of decisions in the future.
The role of an attorney in an Enduring Power of Attorney is often confused with the role of the Executor in a Will. An Enduring Power of Attorney will apply while an adult is still alive but has lost capacity. The attorney will then step into that role and make decisions for them. Whereas with a Will, it will come into effect when an adult has passed away and the role of the Executor is to administer the estate and distribute the assets between the beneficiaries named in the Will.
Your attorney is your decision-maker when you are no longer able to make decisions for yourself and manage your own affairs.
The types of decisions your attorney can make include but are not limited to, buying and selling property, operating bank accounts, dealing with government agencies and other organisations, paying bills, as well as lifestyle and health-related decisions. An attorney appointed by a Power of Attorney has significant responsibilities under the law
Why is it important to have an Enduring Power of Attorney?
An Enduring Power of Attorney allows an adult to legally appoint the person, or people, that they want to make the important decisions in their life if they lose the ability to do that for themself in the future.
If an Enduring Power of Attorney is not in place and an adult loses capacity, at that point it is too late. You cannot put an Enduring Power of Attorney in place because you need to have mental capacity to be able to understand the document to do so.
In that scenario, an appointment would be made by the Queensland Civil and Administrative Tribunal (QCAT). Once an application is made, QCAT will decide who will be appointed. That may be a family member or even The Public Trustee.
The person appointed may not be someone that the adult would prefer to make decisions for them.
A common misconception that exists in the community which we come across quite often is the belief that when a couple are married or in a de facto relationship, that they have the legal ability to make decisions for their spouse, in particular financial decisions, if their spouse loses capacity. That is simply not the case.
If an Enduring Power of Attorney is in place and it appoints a spouse as an attorney, then they can make those decisions.
If an Enduring Power of Attorney is not in place, then a spouse would have to apply to QCAT to be appointed as an administrator for their spouse, which would then grant them the necessary power to make financial decisions.
Another common comment we hear people say quite often is “I won’t ever lose capacity – that won’t happen to me”. No one has a crystal ball, and no one knows what the future holds. People certainly don’t plan to have an accident, injury or illness. There is absolutely no way of knowing what could be around the corner.
There is also this idea that Enduring Powers of Attorney are only relevant to dementia and will take effect if an adult is suffering from dementia. Although this is true, there are other circumstances where Enduring Powers of Attorney are important and will take effect.
For example, you are driving down the highway and you are involved in an accident. You are seriously injured but you survive, however you have been left with a brain injury where you don’t have the ability to manage your affairs. That is a situation where an adult needs an Enduring Power of Attorney in place so their appointed attorneys can take over and make the necessary decisions for them. If it is not in place, it is too late. That is a situation that can happen to anyone, especially on our roads today.
What should people know when deciding who to appoint as their attorney?
You must carefully consider who you appoint as your attorney. It needs to be someone you trust implicitly and believe will make decisions in your best interests.  Remember your attorneys are your advocates and will have a significant amount of decision-making power in your life.
Deciding who are the most suitable people to appoint as your attorneys can often be a difficult decision and each family situation is different.  This is why it is important to obtain legal advice when making an Enduring Power of Attorney. A solicitor can give you advice about appointment of attorneys, in particular appointing a reserve attorney if your primary attorney is not able to fulfill their duties, and whether in your case it is appropriate to appoint more than one attorney to act jointly so the attorneys can keep each other in check.
When an attorney’s power takes effect, the adult will usually be in a very vulnerable position because they have lost capacity. Things can go very wrong if the right people are not appointed.
What are the changes coming into effect to guardianship legislation and Enduring Power of Attorney forms?
As of the 30 November 2020, there will be a new Enduring Power of Attorney form and a new Advance Health Directive form.
If an adult is making an Enduring Power of Attorney before the 30th November, they must still use the current forms.
It is important to note that the new forms should not be used prior to this date as they will not be valid. People need to be aware of these changes as the new forms are circulating and are readily available on the Queensland Government website.
There will be no transition period therefore the new forms must be used from 30 November.
If you have an Enduring Power of Attorney in place or put an Enduring Power of Attorney in place using the current form before 30 November 2020, they will still be valid subject to a few limited exceptions.
With the changes commencing on Monday, it is a good time to get your Enduring Power of Attorney out of the filing cabinet, dust it off, and have a solicitor review it to ensure it reflects your wishes and that it is valid. You don’t want to be left in the situation where you lose capacity, your attorneys know you have an Enduring Power of Attorney in place, they locate the document and unfortunately there are problems with it.
What will be different once the new forms are used?
There are significant changes to the Enduring Power of Attorney forms, which will have an impact on what types of questions the adult who is putting the document in place will need to answer and consequently the responsibilities of the attorneys appointed.
There will be new capacity guidelines addressing how capacity is assessed.
The adult making the Enduring Power of Attorney will also have more opportunity to set out specific views, wishes and preferences they may have regarding their personal, health and financial matters. Although this information is only optional and is not legally binding on the attorneys, it does provide the attorneys with a more comprehensive outline of the intentions of the principal. These details may assist an attorney when making important decisions on their behalf.
Like the current form an adult will still be able to set certain terms and limitations on the powers of their attorneys, however the forms now allow the principal to direct their attorneys to notify another person nominated in the form about certain decisions made by them. This means that another trusted individual of the adult can oversee the decisions being made by the attorneys to ensure the attorneys are making decisions in the best interest of the adult.  While this new power in the form provides a further layer of protection for the adult, you need to be careful when deciding what notification obligations you are imposing on your attorney because if they are too onerous your attorneys may refuse to act or you could put them in a situation where they inadvertently breach their duties which may result in serious consequences for them.  A solicitor will be able to give you advice as to what notification terms you should include in your Enduring Power of Attorney to suit your circumstances. the
Who is an eligible attorney has also changed. From the 30 November you will not be able to appoint a person who has been your paid carer in the 3 years prior to the appointment.
The above changes are not exhaustive of all the changes coming, you can visit the Queensland Government website to find out further details.
Why is it important to seek legal advice when making an Enduring Power of Attorney and not simply download the form online?
An Enduring Power of Attorney is an important legal document. The document may appear fairly simple to complete at first glance, but where solicitors really play their part is not on how to physically complete the form but giving advice regarding the structure of the form, the attorneys to appoint, and what additional terms should be included in the document to assist the attorneys in their role and to make it clear to them what your wishes are while they are undertaking that role.
If you have an electrical problem in your home, who do you call? You call an electrician. If you have a health issue, you go see your doctor because they are qualified to give you that advice. This is no different for an Enduring Power of Attorney. It is a legal document and it is a very powerful document. It is extremely important that you get the document right the first time.
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 how these documents should be structured to suit your individual needs. Our lawyers can clearly explain all the information so that the person making the document can fully understand the obligations and duties of their attorney as well as the consequences their attorney may face if they breach their duties.
Read more: Estate Planning 101
Read more: Appointing Guardians and Attorneys
For a complimentary 20-minute 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]
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Attwood Marshall Lawyers Senior Associate and Family Lawyer, Hayley Condon, discusses the process of a property settlement when you separate from your partner and what can go wrong if you don’t formalise your property settlement in a legally binding way.
 

Attwood Marshall Lawyers · Hayley Condon – Property Settlements
Introduction
Divorce and property settlements are two very different things. Divorce is simply the process of dissolving a marriage. A property settlement is the process where parties divide their assets so that they can move on individually and financially separate into the future.
Separating from a partner is without a doubt an extremely emotional and stressful time. For those coming out of a relationship, it can be difficult to come to terms with how to properly settle financial matters in order to move forward separately. Couples may choose to quickly distribute their assets between themselves in an attempt to cut ties with their former spouse and move on with their lives without fuss. For others, the thought of dividing assets and determining who gets what can trigger a bitter battle over property and finances.
When can a property settlement happen?
For married couples who have separated, they can apply for, or negotiate, a property settlement with their estranged spouse immediately. They do not need to wait for their divorce to be finalised – and prior to divorce they are not restricted by any time limitations.
For parties who have divorced, but have not resolved property matters with their estranged spouse, it is important to be aware that if they intend to seek a property settlement, court proceedings need to be commenced within 12 months of the date of divorce (i.e. the date the divorce order takes effect).
The rights of a de facto couple when it comes to a property settlement are no different to married couples, so long as the relationship qualifies as a ‘de facto relationship’ under the Family Law Act and the couple have been together for a total period of at least 2 years, then parties in de facto relationships can commence Court proceedings for a property settlement from the time they separate until two years after separation.
For de facto couples who were not together for two years, there are still instances where a property claim can be made. These instances include if the couple have a child together, if their relationship was registered, or if one party made a substantial contribution, usually being financial, and the other party would suffer hardship if the Court did not make an Order in their favour.
These are all complex situations, and there are so many different scenarios, which is why it is important to seek legal advice as soon as possible following the break down of a relationship to determine your rights and entitlements and the best way to financially separate from your former partner.
Read more: Understanding your entitlements or obligations when a de facto relationship ends
What can happen when making a property settlement without engaging with a lawyer?
Family Law is a very complex area. People who are not familiar in the law tend to get it wrong. It is recommended to seek advice from an experienced family lawyer when finalising important matters such as property settlements, parenting agreements and divorce.
If you separate from your partner or spouse and simply put an informal agreement in place without obtaining legal advice, the odds are it is not going to be binding under the Family Law Act. This basically means that the agreement is not worth the piece of paper it is written on.
There are two ways to make a property settlement legally binding.
The first is to file an Application for Consent Orders with the Family Court of Australia. Alternatively, the second option is to enter into a Binding Financial Agreement which can only be done with lawyers independently advising both parties.
By formalising a property settlement in a legally binding way, it means that you bring your former partner or spouse’s property settlement rights to an end. You can have peace of mind that your former partner cannot come back in the future seeking further support or assets.
Read more: Binding Financial Agreements
Tax benefits
By formalising a property settlement under the Family Law Act in one of the ways mentioned above, tax benefits can arise for spouses transferring property to each other as part of the division of their asset pool.
Where one spouse transfers their interest in the family home or an investment property to the other pursuant to a Court Order or a Binding Financial Agreement the transfer will not trigger a Capital Gains Tax (CGT) event (i.e. CGT rollover relief will apply) and the transfer will be exempt from any state government stamp duty. If there are no Court Orders or a Binding Financial Agreement in place these tax benefits will not apply.
Some people may assume that given the property was their family home they will be entitled to the ‘main residence’ exemption. That is not always the case. With more and more people operating their own businesses from their home, this can mean the ‘main residence’ exemption will not apply or be limited, which could create a very nasty surprise down the track.
Superannuation and property settlements
Superannuation falls within the definition of ‘property’ under the Family Law Act 1975 (Cth). This means superannuation is also dealt with in the context of a property settlement.
Property settlements include any property or financial resources which are jointly owned or individually owned by the parties.
In some cases, one party may jointly own property with a third party, such as another family member. In these cases the entire property wouldn’t be included in the asset pool, only the share owned by the spouse.
There is a common misconception that when parties bring accrued superannuation into a new relationship, that upon a separation, the superannuation they brought in will be excluded from the asset pool. That is not the case – and all superannuation will be included in the pool. However, the Court will consider the superannuation each spouse brought into the relationship and the other contributions made by both parties when dividing up the asset pool.
Property or assets brought into the relationship
Just like superannuation, many people are under the assumption that what they owned when entering the relationship will be excluded from the asset pool when dividing property. This is not the case. When dividing the asset pool, the Court will take into account the initial contributions each party made, however these assets will not be excluded from a property settlement, except in limited circumstances.
Assets can include real property, money, business assets, shares and cars.
Money earned during separation
If one person receives a substantial amount of money during the separation period, this can become a hot issue when coming to a property settlement agreement.
For example, if somebody wins Gold Lotto, or receives an inheritance after they have separated from their spouse, but before the divorce is finalised, the question will be raised if these assets should also form part of the asset pool being divided.
It comes down to the factual circumstances of the case as to whether the Court is prepared to exclude any assets or money acquired after separation.
Read more: https://attwoodmarshall.com.au/just-friends-de-facto/
How can Attwood Marshall Lawyers help?
When a relationship breaks down, before taking any steps or making rash decisions, or offering grand gestures to try to settle the matter quickly, it’s best to seek legal advice from an experienced family lawyer who can determine your eligibility for a property settlement and potential range of entitlement.
Attwood Marshall Lawyers have a dedicated team who exclusively practice in family law. It is our intent to help families sort through the legal issues after separation so that all parties can move on with their lives. We understand that the stakes couldn’t be higher when it comes to family law matters.
We are of the view that no two cases are the same, no matter how similar or familiar they may seem. We are dedicated to listening to your needs, assessing your personal situation, setting goals and formulating a strategy to best achieve those goals.
We know that going through a relationship breakdown is an extremely sensitive and emotional time. Our team will guide you through the separation process to reduce tension between parties and help you move forward with your life.
To find out more about your rights after separation, please contact Family Law Department Manager, Donna Tolley on direct line 07 5506 8241, email [email protected] or call 1800 621 071.
The post You’ve separated from your partner – so what happens next? Property settlements and determining who gets what! appeared first on Attwood Marshall.

In the court of public opinion, the commandment ‘honour thy mother and father’ can be hard to beat. In a Court of Law, every case bringing a claim against the estate is considered on its own facts and merits. In this article, Attwood Marshall Lawyers Estate Litigation Associate, Martin Mallon, reviews the case of Crawford v Munden, where a son, who was estranged from his mother for 16 years, was left out of her Will. Despite the extended estrangement, the son was eligible to make a claim for further provision. Here’s how the case played out.
 
Introduction
The New South Wales Supreme Court decision of Crawford v Munden; In the Estate of Angel [2020] NSWSC 1463, highlights the matters considered by the Court in determining a claim for further provision by an adult child of the deceased involving estrangement. In this case, the Court awarded an adult child who had been estranged from his mother for 16 years the sum of $150,000.
Ms Angel passed away on 7 June 2018 from pancreatic cancer. She was survived by her 58-year-old son, Glenn Crawford. The net distributable estate at trial was $435,942.50.
Ms Angel left a Will leaving her entire estate to her niece Lisa Munden, to the exclusion of her only surviving child.
On 15 May 2019, Ms Angel’s son made a claim on the estate pursuant to family provision legislation. For anyone contesting a Will, eligibility must be proven. As a child of Ms Angel, Glenn was eligible to apply for a family provision order.
What were the issues in this case?
The key issues in this case was Glenn’s credibility and his 16-year estrangement with his mother. It is noted before the estrangement Glenn and Ms Angel had a close and loving relationship for 40 years.
In summary, the estrangement between Glenn and Ms Angel stemmed from an incident in 2002 at Glenn’s 40th birthday. There was conflicting evidence about what happened at the incident, but the Court was satisfied that Glenn’s behaviour in deciding not to invite his mother to his birthday celebration was the cause of the estrangement. This estrangement continued for 16 years.
The Court rejected Glenn’s submission that there was an equal amount of stubbornness from both sides.
From 2002, Glenn did not attempt to reconcile with his mother. He only reconnected with her shortly before her death when he was informed of her terminal cancer, despite her objection.
Ms Angel attempted to reconcile with Glenn, but she was rebuffed. The Court was of the view that Glenn’s behaviour was the cause of the ongoing estrangement.
The Court held that Glenn was an unsatisfactory witness and was unreliable.
What other matters needed to be considered?
Although the Court held that Glenn had legitimate future financial needs, his current situation was comfortable and stable. He and his wife owned their own house outright and had savings in the bank.
Lisa, Ms Angel’s niece, did not disclose her financial circumstances. A Court will usually draw inferences that a party who fails to disclose their financial position do not have need.
Ms Angel had a close relationship with Lisa who was her primary carer following her diagnosis with cancer.
The Law
If a child contests a Will, a Court will weigh up the child’s need for provision from the estate by determining what moral duty the parent had to provide for their child.
The Court will examine all relevant circumstances, including but not limited to:

the relationship between the applicant and the deceased person;
any obligations or responsibilities owed by the deceased person to the applicant;
the value and location of the deceased person’s estate;
the financial circumstances of the applicant, now and in the future;
whether the applicant is financially supported by another person;
whether the applicant has any physical, intellectual or mental disabilities;
the applicant’s age;
any contribution made by the applicant to increase the value of the estate;
whether the deceased person has already provided for the applicant during their lifetime or from the estate;
whether the deceased person provided maintenance, support or assistance to the applicant;
whether any other person is responsible to support the applicant;
the applicant’s character and conduct;
any other claims on the estate; and
any other matter that the Court determines is relevant.

General principals to be considered with respect to estrangement
His Honour Hallen J in Nielsen v Kongspark [2019] NSWSC 1821 recently set out the general principles to be considered with respect to estrangement between the deceased and an application for further provision. In the Crawford v Munden case, His Honour adopted Hallen J’s reasonings:
“(a) The word “estrangement” does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33].
It has been established law that estrangement between a parent and child, does not automatically disentitle a child from bringing a claim for further provision from the estate (Palmer v Dolman [2005] NSWCA 361). The Court will review all the circumstances and facts of the matter.
The Decision
The Judge in this case took the following into account in arriving at an amount for provision (in no particular order of importance):

For most of their life together, Glenn and Ms Angel enjoyed a close loving mother-son relationship;
Lisa (Ms Angel’s niece) had a strong moral claim to benefit from the estate despite her electing to not put her financial position forward;
The net distributable estate at trial was small/modest;
Glenn’s current and personal circumstances were relatively good although he has limited earning capacity and will likely retire in a few years;
Ms Angel’s intention was to remove her son and grandchildren from her Will in favour of her niece and had a strong rational for doing so.

Taking the above matters into account and setting aside the issue of estrangement, His Honour concluded that a wise and just testator would have recognised that she had an obligation for two people; her only biological son and Lisa.
His Honour formed the view that this is a case where an equal division of the estate would result in the provision that ought to be made to Glenn. This would equate to $218,000. However, in exercising the Court’s discretion with respect to the estrangement and Glenn’s responsibility for it, a reduction of slightly less than one third of what he might have received was ordered.
The Court ordered further provision for Glenn’s maintenance in the sum of $150,000.
The parties were to be heard with respect to the issues of costs.
Conclusion
This case serves as a reminder that estrangement between a child and parent does not exclude them from obtaining an order from the Court for further provision from an estate. Each case is decided on its own facts and there is no ‘one size fits all’ approach when it comes to family provision claims.
Have you been left out of a Will?
If you have been left out of a Will, or feel you have been inadequately provided for, you can take these simple steps to make a claim:
Step 1: Contact Attwood Marshall Lawyers Estate Litigation team for a free 30-minute consultation to discuss your matter. From this conversation our lawyers can ascertain your prospects of success and a preliminary view on your likely range of award.
Step 2: We will send you the relevant retainer and costs disclosure documents and explain what the process is moving forward.
Step3: Your lawyer will gather evidence and attempt to resolve your matter with the Executor or Administrator at an early stage. This includes placing the Executor on notice of your intention to bring a claim for further provision from the estate to protect your interests.
Step 4: If we are unable to resolve the matter with the Executor or Administrator, we will file formal Court proceedings. In most instances, the matter will be resolved at mediation, usually before trial.
We want to help you get what you’re entitled to
Attwood Marshall Lawyers have one of the largest and most experienced estate litigation teams in Queensland, with senior lawyers who practice exclusively in this area. With offices located in Brisbane, Robina Town Centre, Coolangatta, Kingscliff, Sydney and Melbourne, you can make an appointment at a location most convenient to you.
Will disputes and Succession Law can be extremely complex. The law differs between states and territories. Having an expert Estate Litigation and Will dispute lawyer who has industry leading knowledge and local experience on your side, can help you achieve a positive outcome in the most cost-effective way.
Most 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).
Please contact Estate Litigation Department Manager, Amanda Heather on 1800 621 071, direct line 07 5506 8245 or email [email protected] to arrange a free consultation.
The post Is blood thicker than water in the eyes of the law? A case of estrangement and succession law appeared first on Attwood Marshall.

Debt recovery is still possible despite government measures protecting debtors amid COVID-19, explains Attwood Marshall Lawyers Commercial Litigation Senior Associate, Charles Lethbridge.
Insolvency predicted to rise
These are precarious times for many businesses. Since the effective moratorium on bankruptcies was put in place to shield businesses from insolvency, the number of companies entering external administration has been unusually low compared to previous years. There is expected to be a tsunami of insolvencies awaiting the expiration of the moratorium at the start of next year. Only some businesses have been fortunate enough to continue trading under the lockdown restrictions with minimal impact to their business.
In March, the Morrison government placed a moratorium on insolvent trading laws including temporarily increasing the threshold at which creditors can issue a demand on a company and/or initiate bankruptcy proceedings. It gave relief for directors from personal liability when the company is trading while insolvent. The threshold at which a creditor can issue statutory demand from as low as $2000 increased to $20,000, while the threshold for the minimum amount of debt required for a creditor to initiate bankruptcy proceedings increased from $5000 to $20,000. These changes were set to expire on 25 September 2020, however as a result of industry bodies lobbying to extend the moratorium on insolvency trading laws, the Federal Government will extend these until 21 December 2020.
In addition to the temporary insolvency and bankruptcy protection put in place, new reforms to Australia’s insolvency framework will roll out on 1 January, 2021. The reforms will be the most significant changes to be made to Australia’s insolvency laws in almost 30 years.
Debt recovery and ensuring your debtors’ ledger is in shape
Even with businesses remaining afloat, there is a good chance the customers or clients of those businesses have not had the same success. This may translate to a high debtor’s ledger and in turn, a hit to the cash flow of the business.
It is imperative for businesses to forward plan to make sure they ‘weather the storm’ and ‘come out the other side’. One way to do this is to ensure that a business’ debtors ledger is accurate and kept up to date – converting invoices into cash. A business’ debtors often make up a substantial portion of a business’ assets.
While the COVID-19 safe harbour protections from insolvent trading and the moratorium on creditors being able to wind up companies and bankrupt individuals is in place, there are still steps that can be taken to recover debts to ensure a business’s health is maintained.
It is important to note that company director’s personal liabilities remain in place including:

personal liability for personal guarantees
director penalty notices from the ATO; and
director’s breaches.

Steps to effectively recover debts amid the COVID-19 pandemic
There are various steps a business can take in order to maintain financial stability, including:

Aged debtors – a well-known accounting principle is that a six-month old debtor may as well be written off as unrecoverable. Take immediate action and don’t automatically extend credit terms and consider obtaining security and personal guarantees;
Ensure your customers understand that you don’t stand for late payments. Don’t automatically extend credit terms. Follow up all customers with outstanding payments;
Give your customers options, for example a payment plan;
Commence debt recovery proceedings promptly – you will have to pay a fee but chances of recovery are much greater. Litigation is often successful in recovering debts simply because of the pressure it applies.

The protections in place to protect debtors do not prevent recovery proceedings and judgments being delivered against debtors. The moratoriums delay those judgment debtors being wound up or made bankrupt, however, it is a fact that 97% of all litigated matters are settled prior to trial (judgment).
Sure, creditors may need to compromise what they are owed, but they are likely to receive money in the tin which is better than having to write a debt.
Concerns as to potential preferential payment claims being made by liquidators or bankruptcy trustees down the track should be kept in mind. It is better to have money in the bank now and deal with any claim if it indeed ever comes.
How can Attwood Marshall Lawyers help you recover debt?
If you need help with recovery of debts owed to you or you suspect your business is in financial difficulty, it is important to get professional legal advice as soon as possible.
Watch out for the warning signs which can include poor cash flow, incomplete financial records or disorganised internal accounting procedures, problems collecting debts, overdraft limits reached, overdue taxes and superannuation liabilities.
With specialised experience in all aspects of business and commercial law, our team can help guide you and your business towards a successful outcome and help ease the stress in your life.
For more information 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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The concept of being “just friends” can put people in a false sense of security when it comes to what happens after a relationship breaks down. Married couples are not the only ones who are entitled to seek a property settlement in the event they separate, de facto couples are also able to make a claim. Simply taking the stance “we were just friends” may not hold up in court, explains Attwood Marshall Lawyers Family Law Senior Associate Hayley Condon.

Attwood Marshall Lawyers · Can you be ‘Just Friends’? Legal questions about de factos, affairs and pre-nups
Informal relationships can lead to legal troubles
The term “just friends” is being raised more and more often. It tends to arise when a relationship has broken down, a de facto property settlement claim has been made and one party to that relationship is defending the claim on the basis that “we were just friends, we weren’t in a relationship, and therefore you have no entitlement”.
Determining when a de facto relationship does exist is not as straightforward as it may seem. It comes down to the factual circumstances of each relationship. There are certain criteria that a court will look at when considering whether they believe a de facto relationship exists in order to determine if a party is eligible to make a claim for a property settlement.
That criteria includes:

the length of the relationship;
whether a sexual relationship existed;
the ownership of property and how it was used by the parties and acquired;
financial dependence or independence of the parties – if one party is supporting the other;
the care of children;
the mutual commitment to a shared life;
the public aspects of the relationship, were the parties presenting to the public and family members as a couple;
have the parties listed each other as next of kin on medical or government forms;
was one party sending the other party cards or mementos of an intimate nature.

One important point to raise is just because you have told Centrelink you are not in a de facto relationship doesn’t mean that is the case.
De facto relationships where two people live separately
People often assume if two people live together in a home, but maintain separate bedrooms, that because they have got that physical distance they are not in a de facto relationship. Just because you maintain separate bedrooms doesn’t mean you are not in a relationship.
To take that one step further, the same also applies for couples who maintain separate residences. Even if couples claim they only reside at each other’s residence on occasion, such as during the week or over weekends, it does not exclude them from being in a de facto relationship in the eyes of the law.
For the most part when people move in together and start sharing the burden of maintaining a household, this is generally when a de facto relationship will commence. However, every case is different. There can be reasons why people maintain separate residences but in all other aspects are operating as a committed couple.
Despite your living arrangements, the court is going to look at the extent to which two people have merged their lives together as a couple.
Property settlement claims and de facto relationships
Being in a de facto relationship with someone does not automatically entitle you to make a claim for a property settlement if that relationship breaks down.
In order to be eligible to make a claim for a property settlement, you need to have been in that committed relationship for at least two years. That doesn’t necessarily mean two consecutive years, it can be the total period of the relationship.
If the total period of your relationship is less than two years, there are still certain circumstances where you can make a claim. These include:

if your relationship is registered;
if you have a child together; or
if one party has made a significant contribution to the relationship, normally financial, and the other party would suffer financial hardship if the court didn’t make a property settlement order in their favour.

After separation, parties have a period of two years within which to make a property settlement claim otherwise they will be out of time.
For those who wish to make a claim after the time period has lapsed, there will be extra criteria and hurdles that will need to be jumped over in order to get the court’s leave.
It’s always best that after you go through a relationship separation, you speak to an experienced lawyer immediately so you can get the appropriate advice on whether you are entitled to a settlement, what the timeframe is for commencing proceedings, as well as what the range of your entitlement might be.
Other legal documents to turn your mind to after a separation
By obtaining legal advice as to your rights after separation, this also gives you the opportunity to review or change any legal documents you have in place that no longer truly reflect your wishes due to the change in your relationship status.
Documents you will need to consider include your Will, Enduring Powers of Attorney and the most forgotten document of all, life insurance policies nominated beneficiaries and superannuation fund nominated beneficiaries.
Legal consequences for infidelity
For those who are married and enter into a relationship on the side – there can be significant consequences as the second relationship is considered a de facto relationship. This could present whichever spouse is conducting this relationship with a big problem – a very sticky situation.
Case study: A married man was in a de facto relationship with another person while he was married. He ended the relationship with his de facto partner. The de facto partner made a claim for a property settlement. In this case, the claim would pull in the assets of the man, being the spouse having the affair. The married man’s wife then found out about the affair due to the litigation proceedings. As a result, the wife separated from her husband and bought her own property settlement claim upon separation.
The result – the man was faced with litigation for two partners seeking property settlements.
The takeaway: People should be careful of the relationships they conduct and the level of commitment that they want to show each other. The extent to which they involve each other in their finances and financial decisions can mean there may be legal merit for one partner to make a property settlement claim if that relationship goes pear-shaped.
Advice for “friends” taking their relationship to the next level
For people moving forward into a new relationship – the best advice would be don’t rush in to intermingling your financial affairs with each other.
In order to be eligible to make a property settlement claim, parties need to have been in a de facto relationship for two years. There is a bit of time there in terms of enjoying each other’s company to see in what direction things go.
You have options in terms of protecting yourself if you want to take the relationship that step further. Considering entering into a Binding Financial Agreement can be a great way to have an open and honest conversation with your partner and address any issues around how matters will be settled in the event the relationship comes to an end in the future.  People traditionally call them prenups. It is a document that you can enter into before commencing a de facto relationship, or during a de facto relationship. This can save a lot of heartache, stress and expense down the track, and also eliminate some of the fear of the unknown by discussing financial matters upfront.
Read more: Prenuptial Agreements, Relationship Agreements, Financial Agreements – what’s the different and do we need one?
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers have a dedicated team who exclusively practice in family law. It is our intent to help families sort through the legal issues after separation so that all parties can move on with their lives. We understand that the stakes couldn’t be higher when it comes to family law matters.
Our expert team can provide you with the advice you need when moving forward in a relationship, ensuring you protect your assets.  Before taking your relationship to the next level, it’s important to understand when a property settlement claim can be made, how courts make orders and what steps you can take to try and guard against a claim in the future.
We are of the view that no two cases are the same, no matter how similar or familiar they may seem. We are dedicated to listening to your needs, assessing your personal situation, setting goals and formulating a strategy to best achieve those goals.
For advice you can depend on and to find out more about your rights after separation, please contact Family Law Department Manager, Donna Tolley on direct line 07 5506 8241, email [email protected] or call 1800 621 071.
The post Are we more than “just friends” in the eyes of the law? Understanding your entitlements or obligations when a de facto relationship ends appeared first on Attwood Marshall.

Attwood Marshall Lawyers are proud to participate in the Salvation Army Wills Day on Tuesday 10th November 2020, marking 15 years’ supporting this well-deserving charity. The Community Wills Day will take place at The Salvation Army Gold Coast Temple at 157 Wardoo Street, Southport.
 
This event will celebrate the 15th anniversary of the Salvation Army Wills Days in which Attwood Marshall Lawyers have supported the well-deserving charity.  Attwood Marshall Lawyers Legal Practice Director Jeff Garrett said that many things have changed since the first, very modest, Wills Day, which was held in Coolangatta in October 2005.
“The first Wills Day we did for the Salvos involved me, Paralegal Debbie Sage and graduate Angela Harry.  From memory, there were only 10-15 people who came along. Fast forward to 2020 and we have 5 lawyers attending the Wills Day with over 70 participants at Southport on Tuesday 10th November.  We have already conducted Wills Days at our Kingscliff, Coolangatta and Robina Town Centre offices this year, with over 75 people provided with Wills.  Many people also opt to have Enduring Powers of Attorney documents drafted on their behalf.  These numbers have also been severely impacted by COVID-19 and would have dramatically increased had it not been for the restrictions.”
Mr Garrett stated that he and the firm were very proud to be associated with such a respected and long-standing charity.
“It has been a real privilege for the lawyers in our firm to help this very worthy charity.  It is a great opportunity to promote the importance of people having a properly drafted and current Will and at the same time help generate much needed income for such an important arm of the Salvation Army in the Still Waters women’s support and accommodation service.  In this time of escalating domestic violence, we are very proud to assist in this most critical area of care.”
Mr Garrett said that it was not only the fee charged for the preparation of the Will, which was donated to the Salvos, the process also encouraged people to make a bequest in their Wills to the Salvos.
“The act of providing for a charity in your Will is often overlooked by people.  However, it performs a very important function in providing critical financial assistance to charities.  We actively encourage people to consider donating to a worthy charity and placing this as a bequest in their Will.”
Mr Garrett said that the statistics show that a majority of people either do not have a Will or have not updated their Will to ensure that their affairs are in order in the event that they unexpectedly pass away.
“It continues to surprise us that such a high percentage of people either don’t have a Will or have not updated their Will for a very long time.  The Salvos Wills Days provides a great opportunity for people to have their Will done professionally at a very modest cost.  The great thing about the scheme is that the cost of having your Will done with the Salvos ($75.00) is donated to the charity and you have your Will done professionally by Attwood Marshall Lawyers for the cost of that donation.  We recommend that people get in touch with the Salvos and book themselves in to have their Wills done under this fantastic scheme.”
With 5 experienced and dedicated Wills & Estates Lawyers in attendance, the Attwood Marshall Lawyers team will be providing their services free of charge to prepare simple Wills for people who registered for the program.
All proceeds from the program will go to Still Waters Refuge so that they can continue their tireless work helping women and children in crisis.
Read more about the charities and clubs Attwood Marshall Lawyers supports. 
Still Waters Refuge
Still Waters is The Salvation Army’s Gold Coast Supported Accommodation service providing immediate temporary support accommodation for women, and women with accompanying children who are faced with crisis and in need of safe and secure accommodation.
The Salvation Army is the largest provider of homelessness services in Australia. As the Gold Coast has one of the highest rates of homelessness, supporting accommodation services is more imperative than ever before.
Pictured: Salvation Army Bequests Manager Tony Welsh, Attwood Marshall Lawyers Donna Tolley, Natalie Comerford, Rhiannon Garrett, Romy Garrett and Zoe Penman with Salvation Army representative Ron Southall at the Gold Coast Salvation Army Temple, Southport for Community Wills Day.
 
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Separation, divorce and property settlements – these can be some of the most trying times in our lives. For couples who were already experiencing relationship problems prior to the COVID-19 outbreak, the pandemic may only have intensified negative relationships by enforcing lengthy periods of close contact. Attwood Marshall Lawyers Family Law Senior Associate Hayley Condon, discusses divorce and what couples can expect if they make the decision to go their separate ways.

Attwood Marshall Lawyers · Hayley Condon – Family Law Matters & Divorce De – Mystified
Introduction
We are nearing what is referred to as “divorce month”. During the festive season, couples tend to put their relationship under the microscope. They are spending more time at home, reflecting on the year that has passed – and in the case of 2020, it has had significant challenges for everyone.
Stressors impact relationships – and the current pandemic has only amplified the dissatisfaction many couples have in their relationship. If you add financial hardship, loss of employment and self-isolation to pre-existing simmering problems, separation may be imminent. Many couples try to battle through Christmas for the sake of their children, only to make the decision to go their separate ways in January.
Attwood Marshall Lawyers historically observes a significant spike in the rate of marriage separations as the new year rolls in. In this article we look at what you can expect when going through the separation process.
What is a divorce?
A divorce is simply the process of dissolving a marriage. It is a separate matter to property settlement. To apply for divorce, spouses need to be separated for 12 months.
For spouses who have been living separately in the same home for 12 months, they are still able to apply for a divorce, however as part of the divorce process they will need to put evidence before the Court to satisfy the Court that during that 12-month period they were not living together as a couple in the home.
What’s the difference between divorce and property settlement?
Property settlement is the division of assets after a separation, whereas a divorce is dissolving the marriage. They involve two separate processes.
You do not have to wait until you are divorced before you can apply for a property settlement; you can seek a property settlement straight after separation which can help you move on with your life without having to wait for a divorce to be finalised.
What does a property settlement achieve?
A property settlement achieves financial separation. It involves spouses dividing up their assets so they can move on with their lives individually. In terms of the process for a property settlement, it really comes down to the parties in each case. If the parties separate and remain amicable, they could reach their own agreement, or through solicitors negotiate an agreement which is formalised in a legally binding way to protect them. If, however, there is a lot of acrimony between the parties after the breakdown of their marriage, the matter may need to be resolved by way of litigation.
READ MORE: 7 Mistakes separating couples make when they don’t get a lawyer
Even if it’s amicable, do you still need an agreement in place?
It is important that parties formalise any settlement they reach in a legally binding way under the Family Law Act. If this is not done, what can happen is your spouse could pursue you again down the track, before the statutory limitation period expires, for a further settlement (so another bite of the cherry).
By formalising the settlement, you are protecting yourself against this risk and you will also receive tax advantages such as the benefit of stamp duty exemptions where property is being transferred between spouses as part of the terms of the settlement.
Compromise can be key to settling matters quickly
If parties want to resolve property settlement matters without engaging in costly, lengthy and stressful litigation then it requires compromise on both sides.
It may be the case that one party may be prepared to compromise more than the other in order to achieve a settlement. There are a variety of reasons for this, such as when children are involved and the parties want to try and maintain a workable co-parenting relationship for the future. Occasionally one party may be more inclined to compromise as they have the hope of a reconciliation in the future, which sadly is often misguided.
Don’t ‘Do-It-Yourself’ when it comes to property settlements and divorce
Just like a Will, couples can go online and download an Application for Consent Orders form from the Family Court website and can also find Binding Financial Agreement precedents online. However, it is not recommended that anyone try and formalise property settlement agreements on their own.
Family law can be a very complicated area when formalising agreements especially when it comes to the drafting of the settlement provisions when you are dealing with the transfer of property or tax issues.  If you get it wrong, you could end up spending more money trying to fix the problems that arise compared to what you would have spent in the first place, having a lawyer prepare the documentation for you correctly.
Settlement agreements under the Family Law Act can be formalised by way of an Application for Consent Orders filed with the Family Court or a Binding Financial Agreement which does not involve the Court.
What assets does a property settlement include?
Settlement agreements reached between separating spouses are specific to each case based upon the property that makes up their asset pool.
The property that forms part of an asset pool includes:

assets and financial resources jointly owned by the spouses;
any assets or financial resources owned by the spouses individually;
if a spouse owns an asset with a third party, such as a parent or other family member, then the spouse’s interest in that asset would form part of the asset pool.

How do you determine who keeps items of sentimental value? 
Sentimental items can be very difficult to deal with in separations, especially where one party is aware that it is important to the other spouse and the item does not have a great monetary value.
Such items can be used as a tool of negotiation in property settlements.  As the value of the item is generally not significant, it is not financially viable for a party to pursue the issue by protracted negotiation or litigation. If you are going through a separation which is acrimonious or looks like it will end up that way, you should strongly consider removing sentimental items from the home, if you are vacating the home, otherwise they may disappear.
READ MORE: Separating from your spouse or partner? Ten legal tips 
How does superannuation get factored into property settlements?
Superannuation is included as part of the asset pool in a property settlement. There is a common misconception with superannuation that if a party brings an amount of superannuation into the relationship that this amount will be excluded from the pool if the parties separate in the future. This is not correct. The full value of the party’s superannuation will be included in the asset pool. However, when a Court considers how the property, and in particular how the superannuation is to be divided, the value of the pre-relationship superannuation brought in by the relevant party will be taken into account.
How do courts decide who gets what in property settlements?
Judges have a wide discretion when making property settlement orders.  Firstly, the Court must be satisfied that it is just and equitable to make an Order. If it is not, then the Court does not have to make an Order. After this the Court applies a 4-step approach when determining what property orders to make. These steps include:

Step 1 – Identifying the asset pool and its value;
Step 2 – Considering the contributions made by the parties over the length of the relationship and post separation (including financial contributions, homemaking and parenting contributions and non-financial contributions) and ascribing a percentage value to those contributions;
Step 3 – Considering the future needs of the spouses and whether a percentage adjustment should be made in favour of one party (i.e. due to one spouse having a greater income earning capacity or a spouse being the primary carer of young children);
Step 4 – Consider whether the percentage division reached under the preceding 3 steps is just and equitable or whether any further adjustment should be made in favour of a party. A further adjustment at this step is rare.

Once the Court decides how the asset pool will be divided between the parties in terms of a percentage division, it then has the power to make Orders detailing what specific assets each party is to retain as part of their property settlement.
READ MORE: What happens to jointly held Life Insurance after separation? 
What other legal documents should be considered when going through a divorce?
After a separation, parties should turn their mind to any other legal documents that they have in place such as their Will, Powers of Attorney, Appointments of Enduring Guardian or Binding Death Benefit Nominations for superannuation accounts.
It is not unusual when parties are married or in a de facto relationship that they put these documents in place while they are together. Couples commonly appoint each other in the roles of Executor and Attorney and nominate each other to receive the benefit of superannuation entitlements upon death.
It is therefore important that after a separation parties update these documents to remove their spouse. If this does not happen and a party passes away, their estranged spouse could end up with their estate under their Will and/or their superannuation death benefits.
This risk also applies to Powers of Attorney/Appointments of Enduring Guardian. If you do not change your documents after a separation your estranged spouse will still have power under those documents to make decisions for you.
These outcomes ordinarily do not reflect the wishes of separating spouses but is often a step which is forgotten after a separation as the focus is on the breakdown of the relationship.
How can Attwood Marshall Lawyers help?
At Attwood Marshall Lawyers in the first meeting we discuss the issues that need to be resolved arising from the breakdown of your relationship including property settlement, parenting matters and divorce. We will also deal with your estate planning issues so that you can take steps to prevent the undesirable outcomes from happening.
If you need legal help with any Family Law matter, please contact Family Law Department Manager, Donna Tolley on direct line 07 5506 8241, email [email protected] or call 1800 621 071.
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Attwood Marshall Lawyers Family Law Special Counsel, Michael Twohill, discusses the different types of financial agreements available to couples to provide peace of mind in the event of a relationship breakdown. Family law property disputes can be extremely costly, so if you can establish an understanding early on, it may save you stress and money in the long run.

Attwood Marshall Lawyers · Michael Twohill Relationship Agreements – Part 1

Attwood Marshall Lawyers · Michael Twohill Relationship Agreements – Part 2
Prenuptial Agreements and Binding Financial Agreements
Prenuptial Agreements, otherwise known as prenups, are often in the spotlight when celebrity couples break up and create plenty of fodder for gossip blogs and magazines. However, Prenuptial Agreements aren’t just for the rich and famous, despite the stigma attached.
A Prenuptial Agreement is a written contract entered into by a couple prior to marriage or a civil union. It generally clarifies how matters will be settled in the event of a relationship breakdown.
The process of drafting a prenuptial agreement promotes transparency and can give partners a chance to disclose and address issues like debt so that they won’t come as a surprise later. In addition to deepening communication, prenuptial agreements can help eliminate some of the fear of the unknown, which allows couples to better focus on building their lives together.
Unlike Prenuptial Agreements, which are entered into before marriage, Binding Financial Agreements can be made either before or during a marriage. Like many legal documents, a Financial Agreement should be reviewed and updated as your situation changes throughout the relationship.
Melania Trump understood the importance of updating her prenuptial agreement she had implemented prior to marrying Donald Trump. During her marriage to Donald, she believed significant change had occurred since the time the initial prenuptial agreement was drafted and therefore the document needed updating. She wanted the prenuptial agreement to protect her son’s inheritance. With suspicion and gossip on Donald’s infidelities, the first lady took the opportunity to amend her financial agreement, and chose to delay her move to Washington after Donald became president to gain leverage in renegotiating the prenup.
Binding Financial Agreements can also be a tool used by those who are married but separated and don’t want to wait for a long period of time for the divorce to go through. There is no reason why people can’t move on without it costing them a lot of money.
Relationship Agreements
Relationship Agreements are becoming more popular. They are the way of the future in being able to maintain a good relationship while putting in a safeguard so that both parties understand what will happen if the relationship breaks down. Having a Relationship Agreement will mean you won’t find yourself in a situation where you have to start from scratch in a family law matter.
Relationship Agreements are entered into by couples who do not intend to get married but intend to commence living in a de facto relationship. They can be an extremely useful tool for people that have been married previously and have children and assets from previous relationships.
At the time someone commences a relationship with their new partner, having a Relationship Agreement allows both parties to talk about what they each have upon entering the relationship and what may happen if they separate in the future.
For those who have a Relationship Agreement and then go on to get married, the Relationship Agreement would need to be terminated and the couples would then enter into a Binding Financial Agreement for the document to hold up.
What’s the process to have a financial agreement drafted?
A financial agreement should never be entered into under duress or as a result of unconscionable conduct. Couples should never feel rushed to implement a prenuptial agreement at the last minute, or compelled to sign a document that they are not comfortable with or don’t understand properly. Sometimes the bargaining position of a person is exploited by the other (e.g. where one has much more assets and money than the other and uses this to force the other to sign). It is for these reasons that many prenuptial agreements do not hold up in court.
The first step is to contact an experienced Family Lawyer to have a discussion about the type of agreement that will be most suitable. The needs of both parties will be outlined and what each of them would like to put into the agreement.
Both parties will be advised that they should have their own counsel to ensure that their respective interests are represented throughout the process and that the final agreement is fair to each.
From this point, to avoid conflict of interest, our lawyers would only commence further discussions with the person we are representing – the other party would need to step outside.
We would then determine the position of our client and run through the list of assets and liabilities that need to be included in the agreement. We would determine what each party would like to do with their assets and liabilities.
Once we have drafted up the agreement and intentions of our party, the document would be presented to the other party who would need to take it to their own lawyer to review.
Once both parties are happy with what has been set out in the document and are ready to sign, the other party would get their lawyer to sign in their presence and return the agreement to us, where we sign off.
Each party keeps a copy of the agreement. Attwood Marshall Lawyers can offer to keep the original in our free and secure safe custody strongroom.
Does a Prenuptial Agreement override an existing Will
It is best practice to update your Will and Enduring Power of Attorney at the same time as establishing a prenuptial, binding financial or relationship agreement. Each party would require their separate lawyer to assist with updating their Will which would then reference the Financial Agreement or Relationship Agreement.
If the financial agreement is mentioned in the Will it will be regarded as a relevant factor.
Prenuptial or financial agreements are done under the Family Law Act, which is a Federal Act.
Wills and powers of attorney are covered by the respective State legislation. Generally, the Federal Act will override the State in the event of a conflict, however, if your Will and estate planning documents are updated at the time of any agreement, this should not be an issue.
It is an argument that can be extremely costly if both parties Wills are not consistent with what is outlined in a prenuptial or financial agreement.
How can Attwood Marshall Lawyers help?
It is best to seek professional advice to discuss your unique circumstances and why you’re considering entering into a prenuptial, financial or relationship agreement. An experienced solicitor can provide guidance on what should be included in the document.
Attwood Marshall Lawyers is a highly trusted leading law firm with a department dedicated to the specialised legal practice of Family Law. Our intent is to help families maintain their relationships. We are proud to provide exceptional client service, legal expertise, and secure remote and over-the-phone appointments. We have stringent social distancing protocols in place for face-to-face appointments in line with our COVID-Safe Plan.
If you need legal help with any Family Law matter, please contact Family Law Department Manager, Donna Tolley on direct line 07 5506 8241, email [email protected] or call 1800 621 071.
 
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The NSW Court of Appeal has ruled in favour of Angus the Schnauzer, as apartment buildings can no longer create by-laws prohibiting animals, explains Property and Commercial Lawyer, Andrea McGarry.
The positives of pet ownership
Australia has one of the highest rates of pet ownership in the world, and it may be about to get even higher. Research shows that pet ownership can have a number of physical and psychological health benefits. People have reported to have lower blood pressure, lower cholesterol, increased physical activity, a strengthened immune system as well as decreased feelings of depression and loneliness. Studies have also shown that people who have pets display the ability to deal with stress better when compared to non-pet owners.
For residents of apartments or properties under strata title, having a pet may have been previously off the table. However, in a recent decision in the NSW Court of Appeal, those restrictions will no longer apply.
Pets and apartment living
The recent decision in Cooper v the Owners Strata Plan No 58068 [2020] NSWCA 25, means apartment buildings can no longer create by-laws prohibiting animals.
The Court of Appeal has found that by-laws placing a blanket ban on pets breaches section 139 (1) of the Strata Schemes Management Act 2015 (NSW), which states that a by-law must not be “harsh, unconscionable or oppressive”. This landmark decision is fantastic news for pet lovers and is thanks to the tenacious owners of Angus, the Schnauzer.
Joanna and Leo Cooper are lot owners of an apartment building in Darlinghurst, known as The Horizon. The Horizon had a by-law which stated that an apartment owner must not keep or permit any animal to be in an apartment or on the common property. The Cooper’s originally had success in the NSW Civil and Administrative Tribunal (NCAT). NCAT found the blanket ban on animals to be invalid. This decision was overturned by the Appeal Panel of the Tribunal where it was found that a blanket ban on animals was valid as the owner was taken to have assumed the responsibilities and obligations of the by-laws upon purchasing the apartment. This decision was ultimately overturned by the Court of Appeal.
Justice Fagan said the prohibition provided no material benefit to other occupiers of the building in their use or enjoyment of their own apartments or of the common property.
“In an apartment building such as The Horizon, an animal could be kept within a lot without creating the least interference with other lot owners,” he said.
“The by-law is oppressive because it prohibits the keeping of animals across the board, without qualification or exception for animals that would create no hazard, nuisance or material annoyance to others.”
What about tenants?
Whilst this decision is a win for animal loving unit owners, the same cannot be said for tenants. As tenants would be aware, pet friendly rentals are few and far between and are particularly limited in unit complexes.
There is no term in the Residential Tenancies Act 2010 (NSW) prohibiting a renter from keeping a pet, or requiring they ask for their landlord’s consent, however, many landlords include a clause in their tenancy agreement restricting pets.
We hope that the recent decision to allow unit owners to bring pets into their home is a step in the right direction for renters and landlords alike. We want to continue to see changes in the future which prevents landlords from placing blanket bans on tenants keeping pets – one could argue this is “harsh, unconscionable and oppressive”.
Owner’s corporations should review their by-laws
It would be prudent for owner’s corporations to review their by-laws and consider making amendments in relation to the keeping of animals. The Court of Appeal provided guidance on what may be considered as a valid by-law relating to pets.
These were:

A by-law permitting an owner to keep an animal subject to it remaining on the owner’s lot and under supervision at all times; or
A by-law permitting an animal to be kept within a lot or common property subject to the consent of the owner’s corporation.

As for Angus the Schnauzer, we are sure he’s looking forward to living out the rest of his days legally, and in peace, enjoying his Harbour views at The Horizon.
How can Attwood Marshall Lawyers help?
Our experienced team of property and commercial lawyers can assist you in drafting and amending by-laws. With this recent decision shining a light on pet ownership in apartments, now is the opportune time to consider amending by-laws and ensuring your by-laws clearly outline the rules that owners, tenants and visitors must follow.
Attwood Marshall Lawyers is an experienced Property and Commercial Law firm. Get professional legal advice by contacting our 24/7 line on 1800 621 071 or Property and Commercial Department Manager, Jess Kimpton, on her direct line 07 5506 8214 or email [email protected]
 
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To be entitled to commission on the sale of a property, Real Estate Agents must show they are the effective cause of sale, explains Property and Commercial Lawyer, Raphaelle Worrall. Disputes often arise where agents who have introduced a property to the buyer believe the sale is theirs to claim. However, introducing the buyer to the property does not necessarily demonstrate an effective cause.

Proving effective cause of sale
To establish that an agent was the effective cause of sale, it is necessary for the agent to prove that there was a causal connection between the agents’ efforts and the completion of the transaction. In LJ Hooker Ltd v WJ Adams Estates Pty Ltd,  Jacobs J said:
“Effective cause” means more than simply “cause”. The inquiry is whether the actions of the agent really brought about the relation of buyer and seller and it is seldom conclusive that there were other events which could each be described as a cause of the ensuing sale. The factual inquiry is whether a sale is really brought about by the act of the agent.”
Case Study 1
In the recent case of Outerbridge trading as Century 21 Plateau Lifestyle Real Estate v Hall [2020] NSWCA, an agent (first agent) entered into a non-exclusive agency agreement that conferred a right to be paid commission where the agent is found be “the effective cause of the sale” and if a buyer “has been effectively introduced” by them. Another agent (second agent) had also entered into a non-exclusive agency agreement for the sale of the property with the sellers.
The eventual buyer was introduced to the property by the first agent.
Their initial offer was rejected, and a further offer was made and accepted by the sellers. After the offer was accepted the sellers withdrew their acceptance as they believed the offer was too low. The buyer made further attempts to arrange a meeting with the sellers through the agent to renegotiate the purchase price. The buyer’s efforts were futile after being informed the agent went overseas and would return in a few weeks’ time.
The buyer contacted the second agent who was able to secure an offer of just over $400,000 more than the price agreement had previously reached. The sellers accepted the offer and the sale was completed.
The first agent sought recovery of the commission arguing that they were the effective cause of the sale. The claim was dismissed – and the first agent appealed the decision. The issue for the appeal court was determining if the first agent was the effective cause of the sale of the property.
The court found that mere introduction of the buyer to the property is insufficient to amount to an effective cause of sale.
The issues on appeal were:

Whether the primary judge wrongly considered that the appellants’ contention was an effective cause of the sale was necessarily inconsistent with the second agent being an effective cause of the sale.

It was held while the actions of more than one agent can answer the description of an “effective cause” of the sale of a property, a consideration of whether the first agent’s conduct was the effective cause of the sale required a consideration of factors external to him that brought about the sale, including the conduct of the second agent.

Whether the primary judge erred in equating the importance of procuring finance with the task of providing the clarification on price desired by the buyer.

The appeal judge held that the primary judge did not treat the conduct of the second agent in securing the sale of the property as akin to the task of arranging finance. The task of providing clarification to the buyer was referred to as part of the explanation of how a transaction was effectively over after the first agent departed on holiday.

Whether the primary judge erred in failing to consider whether the task of negotiating a sale could have been undertaken by the first agent.

It was held the primary judge did not fail to give consideration to whether the task of negotiating the sale could have been undertaken by the first agent in circumstances where he was not capable of providing the buyer with any clarification of the respondents’ price expectations because he was overseas and effectively uncontactable.

Whether the primary judge’s finding that the appellants were not the effective cause of the sale of the property was contrary to the weight of the evidence.

A determination of effective cause requires a consideration and evaluation of all the circumstances surrounding a sale. The mere introduction of a buyer that creates their interest in a property is usually, or at least sometimes, insufficient to be an effective cause. In this case the potential for a sale was effectively extinguished when the first agent departed overseas and became uncontactable. It was the second agent who revived and completed the sale.
Case Study 2
In the case of Urban Property Agents Pty Ltd v Vann & Anor [2020] QDC 226, it was found the agent was not the effective cause of sale of the property after commencing proceedings against the sellers for commission alleged to be owing pursuant to an agency agreement.
The agent had introduced the buyers to the property by conducting an open home and then going on to arrange a second private inspection. The agent prepared a contract of sale and had it delivered to the buyers, however it was held by the magistrate that those actions did not flow through to the actual sale of the property.
The agent and sellers reached a critical impasse when the sellers refused to enter a contract subject to the sale of the buyer’s property.
The agent confirmed that they did not attempt to make the sale of the property unconditional by seeking buyers for the buyer’s sale property. It appears that when the agent informed the sellers of the potential contract as a result of his discussions with the buyers, and the respondents openly refused a contract on the terms proposed, this event effectively broke the causal connection between the efforts of agent and the eventual sale.
The agent was held not to have been the effective cause of the sale of the property and commission was not payable.
Furthermore, evidence established that a second agent was the effective cause of sale of the property. The magistrate found that the second agent intervened at the impasse between the first agent and the sellers, realising that a buyer had to be found for the buyer’s property before the respondents would be willing to accept a contract for sale. The second agent obtained an agency agreement with the buyers to sell their property and within days had found and secured a buyer for the buyer’s property. The second agent then negotiated with the buyers and the sellers to an agreeable settlement date and purchase price. The intervening actions and subsequent efforts of the second agent resulted in the actual sale and was found to be the effective cause of sale.
Conclusion
Introducing a buyer to the seller, which results in a subsequent contract of sale, is not enough to prove effective cause of the sale.  It must be established that the agent was ‘an effective cause of the sale’ and the agent bears the onus of proving they were ‘the’, or, ‘an’ effective cause of the transaction.
Determining you are the effective cause of sale will always involve the terms of the agency agreement and the actual events of introduction, negotiations, offers and acceptance. Whilst the court can draw inferences from certain facts, ultimately the agent must prove their case and have enough evidence to show they were the effective cause of the sale.
How can Attwood Marshall Lawyers help?
If you feel you have unfairly missed out on commission, Attwood Marshall Lawyers can assist you in determining your rights. Speak to an experienced solicitor to obtain legal advice before forsaking any claim for commission.
Attwood Marshall Lawyers are positioned right on the border, with offices at Robina Town Centre, Coolangatta, Brisbane and Kingscliff. Our team can assist agents, buyers and sellers with residential homes and investment properties in both Queensland and New South Wales.
Attwood Marshall Lawyers are a leading Property Law firm. For legal help with a conveyance or property matter, contact Property and Commercial Department Manager, Jess Kimpton on 07 5506 8214 or email [email protected] today.
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PEXA owns the monopoly in the electronic property transaction market, but all that will change with new rules set to enforce competition on a national scale, explains Attwood Marshall Lawyers Licenced Conveyancer, Rachel Godden.

Introduction
The conveyancing industry has undergone a significant transformation over the past few years and as COVID-19 and social distancing impacted our day-to-day lives, the ability to exchange property electronically became more integral to the industry. It is expected that by the year 2022, the conveyancing industry would have moved to 100% e-conveyancing.
PEXA and e-conveyancing
In 2008, the Council of Australian Governments (COAG) committed to creating a single, national e-conveyancing solution to the Australian property industry. In 2010, Property Exchange Australia (PEXA), was formed. PEXA offers its electronic platform in New South Wales, Victoria, Queensland, Western Australia and South Australia.
Information is easily shared between all participants and land registry verification of documents provides greater certainty of successful, on-time settlement. Paperwork is significantly reduced and funds are transferred electronically meaning fast access to cleared funds. There’s no longer a need to physically attend settlement. These are some of the many benefits of e-conveyancing.
PEXA are currently generating fees of approximately $170 million as they manage almost all transfers, mortgages and discharging of mortgages across five states. This could increase to an estimated $240 million once all jurisdictions are transacting on the digital platform.
Who are the current electronic conveyancing players in the market?
There are three e-conveyancing platforms currently available, or planning to be available to the market soon. These include:

Property Exchange Australia (PEXA) – available in NSW, VIC, QLD, WA and SA
Sympli Australia (Sympli) – available in NSW, VIC, QLD and SA
Purcell Partners – currently in the process of gaining approvals from each state registrar

Healthy competition
PEXA is the most widely used settlement platform, however they are set to lose their monopoly over the electronic property transaction market from next year onwards.
State governments have made a decision to allow lawyers, conveyancers and financial institutions to transact with customers on different platforms and not be restricted to any particular one. The new rules are intended to enforce competition.
The ACCC together with state governments of NSW, QLD, SA and ACT had been opposed by WA and VIC state governments until last month when WA conceded and agreed to the national standards. By mid-2021, all states are to enact legislation and the system by year-end that will allow parties to transact with others on different platforms and not be restricted.
“The ordinary mums and dads of Australia that are buying their property or selling their property – they are the ultimate winners,” NSW Minister for Customer Service Victor Dominello told The Australian Financial Review.
Mr Dominello said the agreement came after the states agreed the benefits of implementing an interoperable system would outweigh the costs. The conveyancing, legal and banking industries backed it, he said.
What does this mean for real estate agents?
The key to improving the competition will be interoperability, which means that PEXA and their primary competitor, Sympli, are to integrate with each other. Sympli is expecting to have five documents available by the start of the 2021 calendar, which is 80 percent of all registrations, mortgage registrations, transfers, discharges, caveat registrations and withdrawals. These documents are expected to be available in five states.
During COVID-19, PEXA and Land Registry Services NSW went so far as to allow documents which would normally be registered over the counter, i.e. Powers of Attorneys, to be registered through their electronic system as residual documents. E-conveyancing platforms are not a phase, this is the future.
With healthy competition in the industry, we may see an increase of activity for e-conveyancing, especially in states which have been reluctant to commit to the platform previously.
Real estate agents need to ensure that their clients are engaging lawyers who are registered PEXA or Sympli users that can settle transactions electronically in their relevant state.
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers is an experienced electronic conveyancing firm. We are positioned right on the border and with offices at Robina Town Centre, Coolangatta, Brisbane and Kingscliff, our team can assist buyers with residential homes and investment properties in both states, even prior to the borders opening. Our experienced conveyancing team ensure new 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 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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Attwood Marshall Lawyers have seen a significant increase in new family matters during the COVID-19 pandemic. In times of disaster, domestic violence rates tend to rise. When you combine financial insecurity, health issues and emotional stress with isolation, it’s a tragedy waiting to happen, explains Attwood Marshall Lawyers Family Law Special Counsel, Michael Twohill. We are here to help assist anyone affected by domestic and family violence.

Attwood Marshall Lawyers · Micheal Twohill – Domestic and Family Violence

Freedom from domestic violence is everyone’s human right
Domestic violence can be in the form of physical, verbal, emotional, sexual or financial abuse and can involve a spouse, intimate partner, children, parents or the elderly. It is one of the most underreported crimes in Australia.
During the pandemic, there have been increased calls to helplines and reports of domestic violence, including an 11% increase in calls to 1800RESPECT and a 26% increase in calls to Mensline. Google reported a 75% increase in internet searches relating to support for domestic violence. It is likely that these increased calls and searches are only the tip of the iceberg.
Identifying domestic violence in long-term relationships
It is important for everyone to know the signs of abuse and be able to identify an act of domestic violence. Many people do not identify themselves as abusers or victims of domestic violence.
In most cases, where violence has been occurring within the relationship for quite some time, the perpetrator doesn’t understand what they are doing is an act of domestic violence. Victims may excuse the behaviour of their partner and simply dismiss violent acts as a “one-off” or rare event. A victim may accept that the behaviour of the perpetrator is normal in all relationships as the victim may not know any different.
Whilst the aggrieved person needs to be given support, the perpetrator also needs help in order to address his/her behaviour. There are various organisations that can help both victims and those inflicting violence on another.
Cycles of abuse can form in long-term relationships. Disputes can happen during which tensions rise and a violent act is committed, followed by a period of reconciliation or peace. Over time the violent acts begin to happen more frequently and become more serious. Victims may feel trapped in violent situations and not seek the urgent help they need.
If you identify your partner’s behaviour as an act of intimidation, harassment or physical violence, you don’t have to tolerate it and you need to act to protect yourself. It can be common for victims to stay in an abusive relationship because of fear of the unknown or fear that they cannot survive independently.
In many cases, children can be involved and may witness violent behaviour. It is imperative to protect children who can suffer from psychological damage as a result of what is going on in their household.
Domestic violence can also be in the form of coercive controlling behaviour and/or financial abuse. This type of domestic violence quite often develops over a long period of time during the relationship. The perpetrator may not appreciate the effects and consequences of such behaviour and maybe acting in a way that they observed or experienced in their own family or upbringing.
Steps to take if you are experiencing domestic violence
If you are experiencing physical violence, the most important step to take is to contact the police as soon as possible. If the police are of the view that the act of domestic violence is severe, they have the power to act immediately.
Police can issue a protection order on the spot which has the same effect as a Court order. A Police Protection Order can relieve the victim’s stress and allow people to be protected at the time of incident.
If issued with an order, the perpetrator must be on good behaviour and keep the peace towards the other person and cease any act of violence. There may be additional conditions the police include in a protection order based on what requirements they believe are necessary to protect the victim.
In serious incidents, the perpetrator will be removed from the premises and will have to appear in Court, usually within one week of the event. The perpetrator is given this time to obtain legal advice.
It is very important that you take the first step and discuss what is going on with someone experienced in this area. Help is there – you just need to have the courage to take that first step!
A private application for a Domestic Violence Order
A person can apply for a domestic violence order themselves, or have a lawyer, friend or family member apply on their behalf.
Attwood Marshall Lawyers are involved in many private applications for domestic violence orders. We act quickly for clients who need protection. For people involved in serious domestic violence situations, our team can file applications by e-filing and have the application listed before the court without the parties having to go to court. In urgent cases the court will hear the application by telephone and on an ex parte basis (without the other party being present for the hearing).
Responding to a domestic violence order
When issued with a protection order, the respondent must appear in court and will be given the opportunity to agree to the order without admission.
If the respondent is not prepared to agree to an order in the first occasion, the magistrate will usually make a temporary order. The magistrate will then make orders for documents to be relied upon by each party to support their case to be prepared and filed in court and list a hearing date where the matter will be heard and all parties can have their say.
If a respondent feels the domestic abuse allegations are false or misleading, he/she will be able to argue their case when the matter is heard in court.
We are involved in many matters before the court where we act on behalf of the Respondent. In many cases we are able to negotiate a good outcome for the respondent for the benefit of both parties as well as for the benefit of the children if the parties have children.
How can Attwood Marshall Lawyers help someone looking to get out of a violent relationship?
If you are experiencing domestic or family violence, our team will invite you for an initial consultation to discuss your circumstances. From this discussion, we can then determine what type of protection orders may be needed.
For urgent matters where physical violence has taken place, we direct the client to contact the police or we can prepare and file a private application for an urgent protection order, e-file it, and seek to have it listed for urgent hearing before a magistrate. We assist our clients through the entire process.
Our team arrange for communication with the partner at a time that is appropriate so that the matter can be resolved either in court or as early as possible. We handle all negotiations to resolve the issues between the parties.
In most cases, it is not just the domestic violence matter that needs to be resolved. There may be jointly held assets to be regarded, as well as arrangements for children. We can obtain Domestic Violence Protection Orders which will include the children as protected persons but we can also then assist the parties to negotiate terms in the order that will allow the children to have contact with, and spend time with, the parent who has the order made against them.
It is our goal to resolve matters between parties in a way that does not cause conflict. As lawyers, we are meant to be the utility used by the parties to reach an agreement, not the cause of the inflammation of the conflict between them. If you are in a situation where you are not comfortable and feel you are being physically, emotionally or financially abused, there is help out there.
Any act of violent behaviour, emotional abuse or financial abuse, is not okay. Anyone suffering from abuse should reach out when it is safe to do so and break the cycle.
If you are a Respondent
If you are the respondent named in a domestic violence application, don’t despair. We can explain the legislation to you in simple English, become involved and assist you to negotiate the matter with as little conflict as possible.
Our experienced family law team is ready to help parties seeking legal advice and fast legal action. Contact Family Law Department Manager, Donna Tolley, on direct line 07 5506 8241, email [email protected] or phone 1800 621 071 any time. In many cases we offer a free initial phone consultation to discuss your matter.
 
Support Services
There are various organisations who provide support to those in domestic violence situations:

1800RESPECT is a confidential information, counselling and support service, open 24 hours to support people impacted by sexual assault, domestic or family violence and abuse. Call 1800 737 732.
National No to Violence Mens Referral Line – Men seeking help for their behaviour can live chat 7 days a week at ntv.org.au/get-help/ or find out more information about support services. Call 1300 766 491.
MensLine Australia – A telephone and online counselling service offering support for Australian men, whether they be using violence or experiencing violence. The service is available any time, from anywhere. MensLine Australia is funded by the Australian Government Department of Social Services. Call 1300 789 978.
Lifeline – Access to 24-hour crisis support and suicide prevention services. Call 13 11 14.
The Family Relationship Advice Line – A national telephone service that helps families affected by relationship or separation issues. Call 1800 050 321 Monday to Friday 9am to 8pm, Saturday 10am to 4pm (local time).
DVConnect Womensline – DVConnect Womensline is Queensland’s only 24 hour, 7 days a week, 365 days a year crisis response telephone helpline. The service helps respond to the immediate safety needs of women experiencing domestic violence. Call 1800 811 811.
DVConnect Mensline – DVConnect Mensline is a confidential telephone counselling, referral, information and support service for Queenslanders identifying as male who may be experiencing or using domestic and family violence. The service is available 9am until midnight, 7 days a week. Call 1800 600 636.

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Quad bikes (otherwise known as an all-terrain vehicle or ATV) are a major cause of death and serious injury in rural workplaces across Australia. They are often purchased for use in the agriculture and forestry industries as work vehicles. They are also frequently used in the tourism industry. Attwood Marshall Lawyers Compensation Law Paralegal, Sue Davidson, explains how the new safety measures introduced by the Australian Government intend to help save lives and protect workers.
 
Significant rise in quad bike fatalities
Since 2011, there have been 128 fatalities due to quad bike accidents, with 16 fatalities so far this year. The number of deaths this year has doubled compared to 2019, with just over half of all quad bike fatalities caused by a ‘rollover’. This is where the quad bike flips or rolls over, usually crushing the rider underneath.
The risk of rollover increases when travelling at high speeds, carrying a load or travelling through unfamiliar and rough terrain. The design limitations of quad bikes mean many people – including the most experienced operators, are getting seriously injured or killed despite operating them in line with the manufacturer’s guidelines.
You only need to take a glance over recent news headlines to see the horrific reports of quad bike accidents and fatalities around Australia:

Last month, two deaths, a grazier and a businessman from North of Toowoomba, died in quad bike rollover accidents;
Last week a woman was charged for dangerous driving of a quad bike occasioning death. A man fell from the vehicle she was driving and suffered severe head injuries. He was taken to hospital in a critical condition, where he died soon after;
This week, a body of a missing farm worker was found in Western Australia. The Wongan Hills man had been seen riding a Yamaha quad bike “erratically” on the day he went missing. His body was recovered a kilometre south-west of the quad bike crash site.

Mandatory safety standards
The new safety standard will ensure quad bikes are fitted with Operator Protection Devices (OPDs). The standard does not apply to second-hand quad bikes other than those imported into Australia. An OPD (also referred to as a crush protection device (CPD)) is an engineered attachment that is fitted to a quad bike and designed to help protect riders from crush related injuries in the event of a rollover. The issue has caught the attention of the peak consumer protection body, the Australian Competition & Consumer Commission.
“Quad bikes are an important part of rural life, but the ongoing fatalities and serious injuries are incredibly concerning. They highlight the importance of this new safety standard,” ACCC Deputy Chair Mick Keogh said.
“For many years, manufacturers have been claiming rider behaviour is the major reason for the number of deaths and injuries. Their aim has been to shift the focus away from the unsafe design of quad bikes.”
“The truth of the matter is the inherent instability of quad bikes causes them to frequently roll over. It has been reported that at least eight of the fatalities so far this year involved rollovers, with four of them resulting in crush injuries,” Mr Keogh said.
The key requirements for quad bikes from October 2020 will include:

Meeting the specified requirements of the US standard for quad bikes, ANSI/SVIA 1-2017, or the European standard for quad bikes, EN 15997:2011
Having a rollover warning label affixed so that when the quad bike is used, it will be clearly visible and legible
Providing information in the owner’s manual or information handbook on the risk of rollover
Testing for lateral static stability and displaying the angle at which the quad bike tips on to two wheels on a warning label at the point of sale.
Having a spark arrestor that conforms to the Australian Standard AS 1019-2000 or the US Standard 5100-1d.

From 11 October 2020, if a quad bike supplier does not comply with the above safety standards, the supplier may be in breach of the Australian Consumer Law, which can result in fines and penalties.
Inquiries into quad bike safety
The National Farmers’ Federation, rural doctors, surgeons and union groups have all been lobbying for several years to try to get mandatory rollover protection, and as of this month, the new safety standard will be implemented.
In 2015, after an inquest into quad bike related deaths in Queensland was held by the Deputy State Coroner, John Lock, the Coroner stated ‘the evidence gathered during this multiple inquests raises many issues about the safety of quad bikes, including the importance of active riding; good mechanical maintenance; use of correct tyre pressure; use of helmets; disallowing children to ride adult sized quad bikes; understanding the limitations of the vehicle; and that tragic incidents can occur in quite benign conditions’.
That same year, an inquest into nine quad bike related deaths in NSW was held by the Deputy State Coroner, Sharon Freund with the State Coroner’s Court of NSW releasing the findings of the inquest and making recommendations in the areas of a quad bike safety rating system, Australian Standards for quad bikes, training and licensing, helmet use and standards, crush protection devices, seatbelts use for side-by side vehicles, personal locator beacons, children and quad bikes, advertising and educational campaigns and police investigations.
In 2019, the Australian Competition and Consumer Commission (ACCC) provided a report with recommendations of a mandatory safety standard for all new quad bikes sold in Australia.
This resulted in the Federal Government introducing the Consumer Goods (Quad Bikes) Safety Standard 2019. The new safety standard has three elements including improved information for purchasers, enhanced quad bike stability and rollover protection to reduce injuries and deaths.
Manufacturers withdraw from Australian market
For years manufacturers have been claiming rider behaviour is the main reason for death and injury on a quad bike.
The facts are that quad bikes are unstable and frequently rollover.
Following the announcement of the new safety standards to be introduced, manufacturers Polaris, Yamaha and Honda have pulled out of the quad bike Australian market, with an official announcement anticipated from Suzuki.
While many manufacturers are pulling out of the quad bike market in response to new rollover safety rules, new Australian manufacturers have released models complying with the all new safety standards.
Common causes for injuries and deaths from quad bikes
The most common causes for injuries from quad bikes include:

Rollovers;
Collisions;
Crushing accidents;
‘Coathanger” accidents;
Falls and dislodgements;
Tipping accidents (e.g. too much weight on one side).

There are steps you can take to prevent quad bike injuries which can include making sure a quad bike is the right vehicle for the job, ensuring the rider is physically capable of operating the vehicle, and reviewing the terrain to ensure it is not rocky, steep, uneven or sandy which would otherwise present a risky environment to operate a quad bike.
More information, including tips and links to guides on quad bike safety is available on the Safe Work Australia website .
Injured at work?
Quad bike riders who are injured at work in the course of their duties may be entitled to compensation, depending on the cause of the accident and who was at fault. If you are injured while in the course of your usual work duties or travelling to or from work, you will normally be covered for your wages and medical expenses by WorkCover, regardless of who is at fault. In cases involving the death of a spouse or parent, the surviving dependants usually have a lump sum compensation payment available to them for the loss of financial support.
Most quad bike riders would be owed a very high duty of care by their employers and they will have a common law claim for damages in many cases. This may also apply to visitors to the property who may be injured while riding a quad bike without proper training or supervision.
Unfortunately, most accidents involving quad bikes result in serious injuries or death which usually translates to a large compensation claim with significant damages payable.
It is imperative to understand that time limits do apply for making a compensation claim.
Claims must be made within 3 years of the accident (or for minors, within 3 years of their 18th birthday) or the claim will be statute-barred (extinguished).
There are earlier procedural time limits to comply with depending on the type of claim.
If you have been injured in a quad bike accident, we strongly recommend that you obtain legal advice as soon as possible so as to comply with strict time limits.
How can Attwood Marshall Lawyers help?
It is our renowned intent to help people through rough times. If you have been injured, you may be able to claim for compensation. Attwood Marshall Lawyers can help you every step of the way. Contact Compensation Law Department Manager, Kelli Costin, on 07 5506 8220 or email [email protected] for your free, no-obligation initial appointment and to find out about our ‘No Win, No Fee‘ service.
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The QLD and NSW governments have announced extensions and amendments to the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation (QLD) and Retail and Other Commercial Leases (COVID-19) Regulation (NSW).  Property and Commercial Lawyer, Andrea McGarry, explains what has changed during the extension period for eligible small and medium-sized businesses.
Queensland
The COVID-19 Emergency Response Act 2020 (the Act) and the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (the Regulation) sets out Queensland’s arrangements for small and medium-sized enterprise (SME entity) commercial leases affected by the COVID-19 emergency.
The Queensland Government has made amendments and extended the existing Regulation for a further 3 months, until 31 December 2020.
The Amendments regulate those leases where the tenant is still impacted by COVID-19 and requires rent relief and protections.
With the Amendments, there are heightened eligibility requirements, which means for many the relief may be something they are no longer entitled to.
The key differences that apply during the initial response period (concluding 30 September 2020) and the further extension period (commencing 1 October 2020 and expiring 31 December 2020) include:

Entitlement to claim relief for the extension period is based on SME tenants showing at least a 30% turnover drop in July/August/September 2020, compared to the same period last year;
There is no requirement for a landlord’s offer, in relation to the extension period, to include a rent waiver (previously, at least 50% of an offer was to be by way of waiver);
Offers in relation to the extension period can include any rent reduction already offered or given in the initial response period; and
1/24th instalments of agreed deferred rents for the initial response period to 30 September 2020 can start to be collected from 1 October 2020.

Landlords are still unable to take a prescribed action until 1 January 2021. Whilst tenants and landlords can still negotiate on their own terms in good faith, if the lease is caught by the Regulation, they cannot agree to implement rent increases until 1 January 2021.
A prescribed action under a lease, or the starting of a proceeding in a court or tribunal, can include any of the following:

recovery of possession;
termination of the lease;
eviction of the lessee;
exercising a right of re-entry to premises;
seizure of any property, including for the purpose of securing payment of rent;
forfeiture;
damages;
the payment of interest on, or a fee or charge relating to, unpaid rent or outgoings;
a claim on a bank guarantee, indemnity or security deposit for unpaid rent or outgoings;
the performance of an obligation by the lessee or another person under a guarantee under the lease;
exercising or enforcing another right by the lessor under the lease or other agreement relating to the leased premises.

Read more: For more information about the Regulation
Read more: Additional guidance for negotiating rent relief
New South Wales
On 23 September 2020, the NSW government announced that the COVID-19 Regulation will be extended until 31 December 2020. The Regulation was previously set to end on 25 October 2020.
Tenants who were previously afforded rent relief under the Regulation can seek further relief for the period 25 October 2020 to 31 December 2020, however they will be required to re-establish their eligibility.
Landlords will be entitled to receive up to 25 percent land tax concession where they provide additional rent relief to tenants. The land tax concession is in addition to the concession previously provided to landlords who reduced rent between April and September this year.
A bill with further details on the changes is expected in the coming weeks.
Read more: The Regulation and land tax concession here
Read more: The NSW government’s extension media release
Attwood Marshall Lawyers is an experienced Property and Commercial Law firm. Get professional legal advice by contacting our 24/7 phone line on 1800 621 071 or contact Property and Commercial Department Manager, Jess Kimpton, on direct line: 07 5506 8214 or email [email protected] 
In many cases, we offer a free initial phone consultation.
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The question of what is appropriate provision in someone’s Will can be complicated. Attwood Marshall Lawyers Estate Litigation Associate, Martin Mallon, discusses the issues that can arise from parents ‘disinheriting’ their children and not providing for an estranged child.

Attwood Marshall Lawyers · Martin Mallon – Estrangement and Disinheriting Children
Introduction
Not all families live harmoniously and remain close throughout their lifetime. Conflict among families is common and relationships between adult children and their parents can break down for many reasons.
It is estimated that as many as one in 12 families have been impacted by estrangement, with around one in 25 Australians reporting an issue between family members.
One of the most common reasons for estrangement is family disagreement, including disputes over inheritance, parenting style, divorce or choice of partner.
Some people become estranged from their family because of emotional, physical or sexual abuse during childhood or beyond.
The question of what is appropriate provision under a Will for an adult child is complicated and quite emotive with polarised views, particularly when relationships between adult children and parents have deteriorated. Many parents (and grandparents) believe they should be able to leave their assets to whomever they please. Naturally, these choices will be influenced by the relationships they have with their children or family members. Should the ‘black sheep’ of the family receive anything when they behave badly and treat their parents or grandparents poorly? Quite often, these ‘black sheep’ have sound claims against the estate, much to the surprise and chagrin of their siblings and other family members.
The fact that an adult child has had little contact with their parents and/or has behaved badly so that the relationship has totally broken down may not necessarily exclude them from bringing a claim against the estate when their parents die. As with most legal issues, each case is decided on its own facts and it is difficult to provide a ‘one size fits all’ answer to this question.
Family Provision Applications brought by an estranged child
For those who die without a valid Will, their intentions may not be passed on and their estate will be distributed under the laws of intestacy. Each jurisdiction in Australia has different rules on who a person’s next of kin are and what portion of the estate they will inherit.
Depending on the circumstances, this could mean that the assets of the estate will be distributed to the estranged children or parents, even if there has been no relationship between the parties for many years.
If a parent is wanting to exclude a child from their Will, it is recommended they seek specialist legal advice to develop an estate plan that can mitigate the risk of the Will being challenged after they pass way.
It is important to be aware that if you choose to leave a child out of your Will, that child is an eligible person to contest the Will and seek further provision from the estate.
Time limitations to bring a claim against an estate
There are strict time limitations that apply to family provision applications. Each jurisdiction has different timeframes and processes and it is important to act quickly.
In Queensland, a claimant (including an estranged child) has 6 months from the date of death to provide written notice to the Executor or administrator of the estate of his/her intention to bring an application for further provision against the estate. If you don’t give formal notice within the required time limit, the assets of the estate may be distributed, and your rights may be severely impacted and prejudiced (see S.44(3)).
An applicant must then file formal Court proceedings within 9 months from the date of death. If you do not lodge formal Court proceedings within this timeframe, your right of action may be lost forever.
In New South Wales, the time limits vary to Queensland. A claimant must file formal proceedings within 12 months from the date of death.
There are limited circumstances when a person can bring a claim outside these timeframes. In these cases they will need to seek leave of the Court.
Entitlement to a copy of the Will
When a person is estranged from a family member, they may not be given a copy of the deceased’s person’s Will. Further, the estranged child may not know when the estranged family member passed away. This is important because, the time limitations commence from the date of death.
Section 33Z of the Succession Act 1981 (Qld) outlines who is entitled to a copy of a deceased person’s Will. A person who has possession or control of a Will of a deceased person must, if asked, do either or both of the following:

Allow an entitled person (which includes an estranged child) to inspect the Will; and
Give the entitled person a certified copy of the Will on payment of the person’s reasonable expenses by giving the certified copy

It is recommended to write to the Executor of the estate to request a copy of the Will if you have not been given one. You must act quickly if you feel you have been left without adequate provision from the estate.
General considerations in Family Provision Applications
If a child contests a Will, a Court will weigh up the child’s need for provision from the estate by determining what moral duty the parent had to provide for their child. The Court will also review what the parent’s wishes were as instructed in their Will.
The Court will examine all relevant circumstances including but not limited to:

the relationship between the applicant and the deceased person;
any obligations or responsibilities owed by the deceased person to the applicant;
the value and location of the deceased person’s estate;
the financial circumstances of the applicant, now and in the future;
whether the applicant is financially supported by another person;
whether the applicant has any physical, intellectual or mental disabilities;
the applicant’s age;
any contribution made by the applicant to increase the value of the estate;
whether the deceased person has already provided for the applicant during their lifetime or from the estate;
whether the deceased person provided maintenance, support or assistance to the applicant;
whether any other person is responsible to support the applicant;
the applicant’s character;
any other claims on the estate;
any other matter that the Court determines is relevant.

How does the Court view estrangement when considering a claim against an estate?
The mere fact of estrangement between a parent and child, does not automatically disentitle a child from bringing a claim for further provision from the estate (Palmer v Dolman [2005] NSWCA 361). The Court will review all the circumstances and facts of the matter.
Estrangement may be caused by one, or both, parties. If the estrangement is a fault of both parties, the Court may look more favourably on the application from the estranged child.
If an application for further provision is made by an estranged child, the provision awarded by the Court may be less than if it was made by a child who had a close relationship with the parent.
In Queensland, section 41(2)(c) states that the Court may refuse to make an order in favour of any person whose character and conduct is such as, in the opinion of the Court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable.
There have been cases where the estrangement has been considered so serious that the claim was dismissed (see Underwood v Gaudron [2014] NSWSC 1055).
Each case is different and will be reviewed based on its own unique merits. It is recommended that a person seeks independent legal advice from someone who practices in estate litigation to provide advice on your prospects of success.
Resisting an application from an estranged child
Where a Will has been drafted correctly, there will likely be reasons outlined within the document as to why family members may be left out of the Will or left with substantially less than others.
A Court will review all this information, as well as any other evidence that is gathered from other children that may be able to provide insight as to why the parent did not wish to include a child in the Will.
Steps to take to make a claim for further provision from an estate
In order to seek further provision from an estate, the following are the simple steps to take to make a claim:
Step 1: Contact Attwood Marshall Lawyers Estate Litigation team for a free 30-minute consultation to discuss your matter. From this conversation our lawyers can ascertain your prospect of success and a preliminary view on your likely range of award.
Step 2: We will send you the relevant documents and indicate what the process is moving forward.
Step3: Your lawyer will gather evidence and attempt to resolve the matter with the Executor or Administrator at an early stage. This includes placing the Executor on notice of your intention to bring a claim for further provision from the estate to protect your interests.
Step 4: If we are unable to resolve the matter with the Executor or Administrator, we will file formal Court proceedings. In most instances, the matter will be resolved at mediation, usually before trial.
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 area.
With offices located in Brisbane, Robina Town Centre, Coolangatta, Kingscliff, Sydney and Melbourne, you can make an appointment at a location most convenient to you.
Will disputes and Succession Law can be extremely complex. The law differs between states and territories. An expert Estate Litigation and Will dispute lawyer who has industry leading knowledge and local experience can help you achieve a positive outcome in the most cost-effective way.
Most cases are accepted on a ‘no win, no fee’ or deferred payment basis. There are no costs required up front to commence your claim (subject to our determination of you having reasonable prospects of success).
Please contact Estate Litigation Department Manager, Amanda Heather on free call 1800 621 071, direct line 07 5506 8245 or email [email protected] in order to arrange a free initial consultation.
The post Estrangement: Are parents obliged to provide for an estranged child in their Will? appeared first on Attwood Marshall.

Attwood Marshall Lawyers welcomes the decision of the QLD Labor Government and the LNP to REJECT the “appalling and self-serving” calls of RACQ and Suncorp to supposedly “overhaul” Queensland’s CTP compensation scheme.
 
Major insurers, RACQ and Suncorp, have made repeated attempts to convince the QLD government to ‘overhaul’ the most efficient CTP scheme in Australia to the extreme detriment of injured Queenslanders and their families. We all pay an insurance premium with our vehicle registration which covers people injured by another driver’s negligence. There are already significant caps on the amounts of compensation payable for injured claimants and this has led to QLD having the most financially viable scheme in the country. The insurance companies have been lobbying for a change to a ‘no fault’ system which would seriously affect the compensation to injured Queenslanders through no fault of their own. The only winners under this arrangement would be the insurance companies!
Fortunately, Labor and the LNP have just knocked their cruel and shameful efforts on the head!  Well done to the Australian Lawyers Alliance (ALA) and the Save OUR CTP Coalition!
In recent months, RACQ and Suncorp have made shocking attempts to convince QLD to change its exceptional CTP scheme to the much maligned “no-fault” CTP scheme of NSW – despite being fully aware that NSW’s CTP scheme is almost certainly the worst in the country.
Unlike most law firms, Attwood Marshall Lawyers works on both sides of the QLD-NSW border, with specialist compensation lawyers who are experts in both QLD and NSW law.  We are all too familiar with the many differences between the CTP schemes in QLD and NSW because we see it every day with clients injured on the road in both States.
Like our injured clients, our lawyers often bemoan the poor, miserly and inefficient NSW CTP compensation scheme. Every few years when the NSW government brings in new changes to the NSW scheme (regardless of which party is in power), it only gets worse and worse for every day citizens and their families. Insurers, however, see record profits.
In our opinion, the current NSW CTP scheme is the worst it has ever been.
To be clear:

Those injured in NSW car or motor vehicle accidents are far worse off than those in QLD.
Injured people in NSW usually receive much less in compensation than their QLD counterparts – and this is after being forced through a slow, frustrating, costly and inept NSW compensation system. By way of contrast, QLD has the best scheme in Australia – for injured people and motorists alike.
Despite receiving much less in insurance claims, NSW motorists are forced to pay more for their CTP premiums. It makes no sense.
Compared to the efficient QLD scheme, the NSW scheme is slow, obstructionist, protracted, miserly, costly and inefficient. The NSW scheme is fraught with severe restrictions, onerous thresholds, and unreasonable barriers for injured people to access justice, benefits or compensation. It truly is appalling.
Attwood Marshall Lawyers has hundreds of clients who have been injured in motor accidents on either side of the border. We know that injured people who go through the NSW CTP system complain bitterly about the difficult, miserly scheme compared to their QLD counterparts.
The obvious purpose behind RACQ and Suncorp’s disgraceful calls for QLD to overhaul the most efficient scheme in Australia and replace it with the problematic, stingy NSW scheme is simple – to make super-profitable insurers like RACQ and Suncorp even more profitable!
The current QLD CTP scheme should be revered for what it is: the fairest, most successful motor vehicle compensation scheme – and not one to be abused or tinkered with at the behest of CTP insurers for the purpose of increasing insurer profits.

To read more about the differences between the NSW and QLD CTP schemes, and Attwood Marshall’s efforts to preserve QLD’s CTP Scheme, click here. 
Attwood Marshall Lawyers’ work with Australian Lawyers Alliance to protect Queenslanders
Working with the Australian Lawyers Alliance (ALA), Attwood Marshall Lawyers strongly opposed any departure by QLD from its current CTP system so that we can protect anyone injured on our roads. Cyclists, motorcyclists, drivers, road users, unions, allied health professionals, community groups, lawyers, and other industry participants joined together to launch a state-wide campaign to save Queensland’s CTP scheme.
The ALA has undertaken sterling work in its “Save OUR CTP campaign”.
We are pleased to announce that the Save Our CTP campaign was a huge success and has resulted in both the Labor and LNP parties rejecting the appalling calls by Suncorp and RACQ to dismantle the Scheme.  The ALA and the Save Our CTP Coalition secured commitments from both parties to protect QLD’s scheme.
As Suncorp and RACQ are well aware, Queensland has the best CTP scheme in Australia and all Queenslanders should be concerned about the recent attempts by RACQ and Suncorp to overhaul the scheme.
For now, Queenslanders and their families remain protected.
To read the media statement released by The Save Our CTP Coalition, click here.
QLD’s CTP Scheme
All motor vehicles must have CTP insurance cover before driving on Queensland roads. As long as your vehicle is registered, CTP insurance will cover you for any injuries caused to other road users if you are at fault in a motor vehicle accident.
Queensland operates a common law ‘fault’ based Compulsory Third Party (CTP) scheme. The scheme provides motor vehicle owners, drivers, passengers and other insured persons with an insurance policy that covers their unlimited liability for personal injury caused by, through or in connection with the use of the insured motor vehicle in incidents to which the Motor Accident Insurance Act 1994 (MAI Act) applies.
For the injured third party, it provides access to common law rights, where they can seek compensation from the person ‘at fault’ for the personal injury and other related losses.
As a fault based scheme it requires proof of liability, meaning the injured party must be able to establish negligence against an owner or driver of a motor vehicle.
The Queensland scheme is governed by the MAI Act and underwritten by private licensed insurers who accept applications for insurance and manage claims on behalf of their policyholders.
The Motor Accident Insurance Commission (MAIC) regulates and monitors the scheme. The Nominal Defendant determines liability for and manages claims by injured persons where the ‘at fault’ vehicle is uninsured or unidentified.
 
If you have been injured because of the actions or negligence of someone else, you may be able to make a claim for compensation. Contact our Compensation Legal Department on 1800 621 071 for free, no obligation legal advice about claiming benefits, compensation and our No Win, No Fee service.
The post Queensland Government rejects RACQ and Suncorp’s request to overhaul QLD’s CTP scheme appeared first on Attwood Marshall.

Estate Litigation Associate, Martin Mallon, assists Executors and beneficiaries in dealing with issues that arise from DIY Will kits and homemade Wills. Problems can arise interpreting DIY Wills or when a Will has not been executed correctly. This was the case for Peter Brock’s estate when he died in 2006.
Introduction
Of the great sporting arenas around the world, few stands more illustrious than the Goliath that is Mount Panorama. Situated in the township of Bathurst in New South Wales, the 6.2-kilometre tourist road across Mount Panorama doubles as one of Australia’s premier racing circuits and host of the legendary 1000-kilometre touring car race.
Apart from the glory a driver receives through claiming victory of the gruelling 1000-kilometre race, the prize for winning Australia’s great race is the Peter Brock Trophy which was introduced in 2006 following his tragic death. The trophy immortalises the nine-time Bathurst champion as well as adds each winner to the race’s rich history.
DIY Will Kits can leave your estate at risk
Peter Brock’s sudden death in September 2006 was a heartbreaking reminder of the legal wrangles which can be left to the beneficiaries of an estate when a person dies without completing a valid Will, failing to set out who they wish to benefit from their estate.
Following Peter’s death, it emerged that he had signed a DIY Will kit but had not completed the required details correctly.
DIY Will kits promise to make writing a Will simple and stress-free. Although this may be a tempting option to get your affairs in order, you should not assume that a DIY Will kit can protect you and your estate in the same way a professionally prepared Will and proper estate planning can.
Having an invalid Will created a legal battle between Peter’s estranged spouse Beverley Brock, and his partner Julie Bamford and children.
While the celebrity estate extended into the millions and involved intellectual property rights, royalties and a Ferrari, the everyday Australian can still learn a valuable lesson from the Wills of the rich and famous, or battles that ensue due to lack of completing a proper estate plan.
Almost every Australian has an estate which must be distributed after they die. A lack of planning will most certainly create unnecessary difficulties for the beneficiaries. One would have thought that Peter Brock would have been careful about his legal affairs, being involved in such a dangerous sport for his living and having the financial means to pay for good advice. It just goes to show how any of us can be caught in this position and how important it is to properly plan for our loved ones and families.
Peter Brock and the battle of his beneficiaries
Peter died in 2006 and never got around to finalising his Will. There was a costly legal battle over which Will was Peter’s last Will and testament.
Peter was in a marital relationship with Beverley for over 25 years. They had two children and Beverley had a child from a previous relationship whom Peter raised as his own. In 1984 Peter made a Will in which, apart from some monetary gifts, Beverley was to live in the family home until marriage, death or the youngest child turned 18, with income paid to Beverley and the children until the youngest turned 25, at which time the children would receive the remainder of the estate.
In 2003, Peter (who was then involved in a relationship with Julie Bamford) started to complete a “do-it-yourself” Will kit at Beverley’s insistence. He filled in the details as to who he wished to appoint Executor. He also outlined his funeral wishes. He told Beverley to fill in the rest and signed it in Beverley’s and his personal assistant’s presence. His personal assistant signed as a witness; however, Beverley did not sign the document. No details as to the disposal of his estate were ever completed.
In 2006, Peter brought another Will kit into his office and asked his new personal assistant to write it up as he dictated it. She expressed concern that his Will was complicated, and recommended that he should see a solicitor. This Will was never signed.
In October 2007, the Victorian Supreme Court handed down its decision. The Court held the 2006 Will was not valid. It was not convinced that Peter intended the Will as he had dictated, be his final and complete Will, especially as he had made previous Wills so he would have been aware of the requirement for Wills to be signed and witnessed correctly.
A link to the case can be found here: Estate of Peter Geoffrey Brock; Chambers v Dowker & Anor; Dowker & Anor v Chambers & Ors [2007] VSC 415 (24 October 2007).
The Court held the 2003 Will as valid therefore revoking the 1984 Will. However, because the Will only appointed an Executor and gave no directions about his estate, the court ruled that Peter’s estate would have to be distributed under the rules of intestacy.
This meant that his two natural children, Robert and Alexandra would share the estate. They advised the Court that they were prepared to include James, who would otherwise be left out.
Peter’s partner, Julie Bamford went on to contest the estate under family provision legislation and the estate settled her claim out of Court.
Had Peter taken the time to ensure his wishes were validly recorded, he would have saved his family additional pain and suffering.
This case serves to highlight the dangers of ‘do it yourself’ will kits and the importance of ensuring your estate is in order.
What are the risks and potential problems that can arise from a DIY Will or homemade Will?
There are several risks and potential problems that can arise when using DIY Will kits or making homemade Wills, including but not limited to the following:
Poorly drafted terms in DIY Wills:
Instructions in DIY Will kits can be very confusing to a person who is not legally trained. This can result in terms in the Will being poorly drafted or difficult to understand. By having poorly drafted terms in a Will, disputes between beneficiaries and Executors can arise when trying to interpret the document. If a term in a Will is unclear and/or ambiguous, Executors or beneficiaries are often required to make an application to the Supreme Court to seek interpretation of the document.
Legal requirements:
A Will must be executed and witnessed in a particular way to ensure it complies with section 10 of the Succession Act 1981 (Qld) (“the Act”). People who do not seek legal advice often do not understand what is required to ensure the Will complies with the Act.
The signature of the testator (“will-maker”) should be witnessed by two people on all pages. Both witnesses must be present together at the time of signing by the will-maker. If there is any concern about the integrity of the document, the witnesses may be required to provide evidence to the Court as to what occurred at the time the document was executed.
A person must elect a suitable Executor to deal with administration of the estate upon their death. If a Will does not meet the requirements under the Act, it may be held that the document is invalid. If a Court declares the Will invalid, the beneficiaries will need to rely on the deceased’s previous Will, if there was one. Where there is no previous Will, the rules of intestacy will apply which could have significant ramifications. Intestacy rules are different in each jurisdiction. Looking after intestate matters can be complicated and a suitable Administrator will be appointed by the Court and assets will be distributed according to a pre-determined formula.
Not all assets can be gifted in a Will:
Many people are unaware that superannuation does not form part of a deceased person’s estate. You cannot gift your superannuation contributions in your Will. Superannuation assets can hold significant wealth. To nominate a beneficiary to receive your superannuation benefits upon death, a Binding Death Benefit Nomination (BDBN) is recommended.
Read more: Binding Death Benefit Nominations
Joint assets:
There can be confusion around jointly owned assets and what happens to your share when you die. Many people may not be aware that assets owned as “joint tenants” cannot be gifted in a Will. Assets owned as “joints tenants” will automatically pass to the other owner upon death. This is different to assets owned as “tenants in common”.
Legal disputes over DIY Will Kits
Eligible people can challenge a Will on the basis that they have not been left with adequate provision for their proper maintenance and support. When drafting a Will, it is recommended that consideration be given to the individual’s family situation. Blended families can be a complex issue to navigate. On most occasions, a person using a DIY Will kit or a homemade Will, have not sought legal advice in considering family provision claims and how to protect their estate and mitigate the risk of someone contesting the Will.
A Will can also be challenged on the basis that the will-maker lacked testamentary capacity, there is a claim of undue influence or he/she did not approve of the contents of the Will.
Testamentary Capacity
The test for establishing whether a will-maker has mental capacity to write and sign a Will was set down in the case of Banks v Goodfellow (1870). Under the Banks v Goodfellow test, the will-maker must:

understand the nature of the Will and its effect;
understand the extent of the property of which they are disposing by the Will;
comprehend and appreciate the people with an interest in their estate and who may be entitled to make a claim against their estate when they die;
not be suffering from any disorder of the mind or insane delusion that would result in an unwanted disposition.

Often DIY Will kits are not witnessed by people who can assess whether a will-maker has the requisite capacity to enter into a Will. Even if the DIY Will Kit ticks the boxes raised above, if the will-maker did not have testamentary capacity, the Will can be challenged by an interested party. A lawyer who specialises in estate planning can assess capacity and/or obtain necessary supporting documentation to minimise your Will being challenged on the basis that the deceased person did not have testamentary capacity at the time the Will was signed.
How can Attwood Marshall Lawyers help?
With the Bathurst 1000 ready to roar this week and eager fans watching the supercars take speed, it is a timely reminder that each of us, including supercar royalty, should ensure our most basic legal affairs are in order.
If you are thinking about using a DIY Will kit, you must be aware of the associated risks that can arise. It is always recommended to seek legal advice from a competent lawyer who specialises in this area to ensure your intentions are clear and your Will can be upheld after your death.
Attwood Marshall Lawyers have a team who specialise in estate planning and estate litigation. Our team can assist you with drafting all the legal documents you require to protect yourself and your assets. Important documents, such as a Will, Enduring Powers of Attorney, Advanced Health Directives and superannuation nominations should always be kept up to date. Proper estate planning takes into consideration your family situation, asset structure and how to manage your affairs in the event of incapacity.
It is for all these reasons that a DIY Will kit is not comparable to seeking professional legal advice.
If you are a beneficiary or an Executor of an estate and have concerns about a Will’s integrity or feel you have been left without adequate provision for your proper maintenance and support, it is critical you seek legal advice immediately.
For all enquiries or if you would like further advice, please contact Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email [email protected] or phone 1800 621 071.
The post The battle over Bathurst 1000 Legend’s Legacy – Peter Brock`s invalid DIY Will appeared first on Attwood Marshall.

Queensland Mental Health Week is an annual awareness initiative linked to World Mental Health Day, which is held annually on 10 October. During a time when the world has significantly changed in the wake of the COVID-19 pandemic, Queensland Mental Health Week encourages us to think about our mental health and wellbeing and understand the importance of the role mental health plays in our lives. Compensation Law Graduate, Henry Garrett, discusses the psychological impact COVID-19 has had on certain occupations.
 
Introduction
Queensland Mental Health Week – held between 10-18 October 2020, is designed to promote community wellbeing and provide support for those who are struggling to cope with the demands of everyday life. There will be several events hosted across Queensland this week, which will act as a support network for any affected people in our community. This support couldn’t have come at a better time, as we start to see the affects that COVID-19 has had on our society – which is still ongoing.
We all know that some jobs are more dangerous than others. Law enforcement, military and construction workers usually fit the bill for those who voluntarily put themselves at risk at work each day.
Things have changed, we are now at war with a virus. COVID-19’s spread has posed risks to people working in all industries on an unprecedented scale. Yes, like all wars, COVID-19 will eventually end. But, a large portion of our workforce may be left to reckon with the psychological trauma of the pandemic.
Our personal injury department has seen a significant spike in the number of mental health related enquiries since March this year. A trend is developing made up of healthcare workers, police and emergency service personnel and fellow lawyers amongst those who have been hit the hardest.
Here’s why:
Healthcare workers
Medical professionals have arguably been dealt the worst hand. In addition to their usual duties, they have been forced to the front-line to fight against the virus and treat those affected. Not only are they at risk of infection themselves, many have been forced to separate from their families to reduce the risk of spread in order to be able to continue doing their important work. Despite being medically trained and educated to manage these challenging situations, it doesn’t mean doctors, nurses, hospital staff and other medical professionals are immune from an unhealthy stress response.
Measures like social distancing and isolation may be helping to stop the spread, however, health care workers are under extreme pressure from the increased demand placed on the health system.
Long, irregular hours combined with heavy workloads can increase stress and put workers at risk of mental health issues, including being “burnt out”.
Legal Practitioners
The recent death of Federal Circuit Court Judge Guy Andrew is a reminder of the stress facing Australia’s overworked judiciary and this tragedy has prompted legal figures to call for greater awareness of the extraordinary pressures placed on the legal profession and associated mental health impacts.
Judge Guy Andrew was found dead in Brisbane bushland on Thursday 08 October 2020 after he had been missing for five days.
Federal Circuit Court of Australia Chief Judge William Alstergren said Judge Andrew would be “dearly missed”.
“His Honour will be remembered as a fine, highly respected barrister and a diligent and determined judge who lived a life of service to others and to the law,” Justice Alstergren said.
“His tragic passing is a timely reminder of the extraordinary pressure on all who practice in the often highly emotive family law jurisdiction,” he said.
Former Queensland Law Society president and Brisbane lawyer Bill Potts said Judge Andrew’s death was tragic and “Being a legal professional is an extraordinarily difficult job, there are significant numbers of people in the legal profession who suffer from mental health issues.”
“Judges work at an enormous pace … in the glare of publicity. It’s not, unfortunately, a good thing … but it is a very understandable thing that our judges more often than not need support, help and understanding in their most difficult of jobs.”
Mr Potts said while there was a strong awareness of mental health issues in the justice system, there was more to be done.
People turn to the legal system to resolve some of the most difficult and personal problems in their lives. COVID-19 upped the stakes with many people’s livelihoods hit hard when the Government pressed pause on the economy.
Courts were impacted by the lockdown restrictions with urgent applications to the Family Court surging by almost 40 per cent since the pandemic hit.
With increased financial insecurity, employment and housing insecurity, and families spending sustained periods of time together during lockdown, family violence matters significantly increased.
Legal Practitioners have been faced with unprecedented pressures and demands and courts and law firms have had to find new ways to ensure they can provide important services to the community; at a time they are most vulnerable. The pressure is mounting on the industry to keep up with the critical workload and to resolve matters and disputes quickly and effectively so that people are able to move on with their lives.
Law Enforcement
Police, SES and our military have had the relentless chore of policing our border closures. It is estimated that as many as 1,500 people were required each day to manage the work of inspecting border passes and restricting vehicle access to Queensland at the QLD-NSW border checkpoint.
With a significant rise in domestic violence and disputes as a result of the lockdown, combined with law enforcement’s general duties, police and military personnel were stretched beyond their means.
Police have had two roles to play in response to the public health emergency in addition to their regular duties. These included:

Exercising increased powers: In an attempt to slow the spread of COVID-19, Governments expanded the role of police to not only uphold existing laws, but to enforce new public health directions.
Reducing the flow of people into the criminal legal system: Police play a significant role in reducing the flow of persons into the criminal legal system. With courts closing across the country and many trials suspended, prisons were at capacity. The consequences of a COVID-19 outbreak to people in custody could be devastating for those locked up and for police members alike.

With law enforcement officers expected to coordinate local shutdowns, monitor social distancing and enforce stay-at-home directives, all while completing their general duties, the pressure is mounting for those on the front line.
Policing can be one of the most mentally taxing occupations contending with long and often rotating shifts, threats of violence and lack of public support. With additional responsibilities and society frustrated with the extra restrictions imposed on them, in general, law enforcement officers are more likely than the general population to suffer from depression and experience mental health issues.
Beyond Blue undertook a National Mental Health and Wellbeing Study of Police and Emergency Services between October 2017 and March 2018, with the results released in November 2018. The study was called ‘Answering the call’ and was the first national survey of the mental health and wellbeing of personnel in the police and emergency services.
Some key findings from the report:

One in three employees experience high or very high psychological distress; much higher than just over one in eight among all adults in Australia (Australian Bureau of Statistics 2015);
More than one in 2.5 employees and one in three volunteers report having been diagnosed with a mental health condition in their life compared to one in five of all adults in Australia (Australian Bureau of Statistics 2015);
Employees and volunteers report having suicidal thoughts over two times higher than adults in the general population (Australian Bureau of Statistics 2016) and are more than three times more likely to have a suicide plan;
More than half of all employees indicated that they had experienced a traumatic event that had deeply affected them during the course of their work;
Poor workplace practices and culture were found to be as damaging to mental health as occupational trauma;
One in four surveyed former employees experience probable PTSD (compared to one in 10 current employees)

These results are alarming, and keep in mind, the results were based on a survey prior to the COVID-19 pandemic.
Beyond Blue’s ‘Answering the call’ survey, along with a Commonwealth Senate inquiry and an independent review of Queensland’s Workers’ Compensation process were driving forces behind legislative changes, which commenced July 1, 2020, to support first responders. It was welcome news when Industrial Relations Minister Grace Grace presented a Bill to Parliament amending the Workers’ Compensation and Rehabilitation Act 2003. The amendment intended to make it easier for first responders who develop post-traumatic stress disorder (PTSD) access support and medical care they need.
Read more: Attwood Marshall Lawyers welcomes new legislation to support first responders battling PTSD under WorkCover
What is Attwood Marshall Lawyers doing to help?
Attwood Marshall Lawyers are ready for the increased demand to help those in need of legal services.
Whether it be psychological WorkCover claims, employment issues, family law matters, domestic violence incidents, claims for accidents and injuries, commercial lease disputes, our team have acted quickly and effectively to support those in need.
We have implemented a COVID Safe Plan at all our offices. Our staff have access to flexible work arrangements when needed so they can continue to work safely and be there to support their own families where children may be impacted by school closures and other events.
Our staff are offered access to psychological support services if they feel it is required. Our teams catch up regularly to ensure everyone is coping with workloads, as well as coping with what is happening outside of work.
Attwood Marshall Lawyers are proud of our corporate culture and more importantly like to ensure our team feel supported and can reach out to each other if they need help.
We encourage our business partners and clients to do the same. It is our intent to help people and change their lives for the better. If there is an opportunity to go above and beyond, our team will certainly do so.
Queensland Mental Health Week presents an opportunity to ensure we keep mental wellness as a top priority and open the discussion for strategies and interventions to help promote, protect and restore mental health throughout all communities.
For more information on Queensland Mental Health Week, click here.
If you have been impacted by a traumatic event, or require legal assistance, our friendly and experienced team can help any time. Contact us 24/7 on 1800 621 071. Your initial appointment is free and approved compensation cases are accepted on a ‘no win, no fee’ basis.

If you or anyone you know needs help:

Lifeline on 13 11 14
Kids Helpline on 1800 551 800
MensLine Australia on 1300 789 978
Suicide Call Back Service on 1300 659 467
Beyond Blue on 1300 224 636
Headspace on 1800 650 890
ReachOut at reachout.com
Care Leavers Australasia Network (CLAN)on 1800 008 774

The post Take time for mental health – Queensland Mental Health Week 10-18 October 2020 appeared first on Attwood Marshall.

Attwood Marshall Lawyers Wills and Estates Senior Associate, and Accredited Aged Care Professional, Debbie Sage, has partnered with Feros Care to present ‘Ask a Lawyer’ seminars delivered through a Virtual Social Centre.

An innovative platform helping older people stay connected
Feros Care has been smashing stereotypes since 1990. With their ‘Virtual Social Centre’ (VSC) they are bringing together the growing older community and those living with a disability.
During a time where everyone is more isolated than ever before, particularly the elderly, finding new ways to connect and socialise is imperative to your health and wellbeing. Through innovation and creativity, Feros Care are providing a platform to keep people better connected.
Feros Care believes in helping people live bolder lives by being healthier and socially active.  They provide many different services including assistance with residential aged care, home care, home maintenance, veteran’s services, community care, or simply helping those who are getting back on their feet after a hospital stay.
The online world can be daunting place for the elderly. However, Feros Care have made it safe and easy, providing all the training necessary for people to join the digital community.
The Virtual Social Centre allows members to:

Meet new people;
Discover and learn new things;
Share knowledge with others; and
Experience activities from the comfort of their own home.

There is something of interest for every member from book clubs, support groups, guest speakers and lots of surprise events.
For those looking to add a little more physical activity to their day, there’s plenty of choice with seated yoga, tai chi and movement to music and dance sessions.
For the creative at heart, art and craft workshops are regularly hosted and will challenge and stimulate the mind.
The online platform has received an overwhelmingly positive reception and many members have provided feedback about their experience using the Virtual Social Centre, describing it as easy to use and enjoyable.
“The VSC makes me feel valued. It means I can have a social life, make friends, learn new skills all from home. I cannot imagine my life without it,” said Elizabeth, a Feros Care member.
Depending on your circumstances, you may be eligible to include this program in your Home Care Package or within your Commonwealth Home Support Service. If you would like to find out more about Feros Care’s Virtual Social Centre, click here
Attwood Marshall Lawyers Joins ‘The Virtual Social Centre’
Attwood Marshall Lawyers are excited to partner with Feros Care to present on a variety of legal topics and engage with members in Q&A sessions to help deliver educational and relevant content.
Wills and Estates Senior Associate, Debbie Sage, will kick off the first ‘Ask a Lawyer’ session this week on Thursday 15 October.  The session will be an open discussion about Wills. Debbie will discuss what different types of Wills there are, what people need to consider when creating a Will, what happens when people have blended families, and the process involved in drafting a Will.
Each month members will be invited to register for the “Ask a Lawyer” session where they can join the conversation and speak directly to legal experts.
“I’m excited to start the ‘Ask a Lawyer’ sessions. It’s great to see how eager everyone is to participate in the program. I look forward to building connections through the centre and being able to provide insightful and valuable information to Feros Care members,” said Ms Sage.
“The fact members can join a virtual session from the comfort of their home and have access to these types of resources and activities is such a wonderful thing to see.”
“Registrations for the first session booked out fast! Residents are eager to learn more about Wills and Estate Planning and are inquisitive about legal matters relevant to their unique situations”, she said.
The ‘Ask a Lawyer’ sessions on The Virtual Social Centre will be scheduled to run once a month and each month will have a different topic of discussion.
“2020 has been a year like no other. Australia’s Aged Care sector has been hardest hit by COVID-19. It inspires me to help the elderly learn more about their legal rights and what they can do to protect themselves and their estates. As an Accredited Aged Care Professional, I am driven to help educate people about their options in relation to Wills and Estate Planning as well as about their care and living arrangements. The transition to care path can be quite complex and it is imperative people and their families in this position obtain proper advice from experienced professionals in this area,” said Ms Sage.
A little more about Senior Associate and Accredited Aged Care Professional, Debbie Sage
Debbie is one of a small number of lawyers in Queensland and Northern New South Wales to have completed the Accredited Aged Care Professional Program through Aged Care Steps. The program provides a platform to develop the skills and confidence needed to create solutions for accessing funding and care plans that best meet the needs of older Australians.
Debbie helps her clients navigate the complex aged care industry so they can access the most suitable services available. Debbie also forms part of the Wills and Estates team at Attwood Marshall Lawyers as a Senior Associate, having been with the firm for over 15 years.
She has extensive experience and skills to assist in the preparation and drafting of Wills, Enduring Power of Attorneys, Enduring Guardians and Advance Health Directives. Debbie has predominantly worked in the administration of Deceased Estates, and practices exclusively in Wills & Estates in Queensland, New South Wales and Victoria.
Attwood Marshall Lawyers have a dedicated team that practice exclusively in Aged Care, Wills and Estates. For enquiries concerning any transition to care matters, services and agreements, or estate planning advice, please contact Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email [email protected] or free call 1800 621 071. We provide a free initial telephone consultation. Call our office today!
 
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Attwood Marshall Lawyers Estate Litigation Associate, Martin Mallon, explains the devastation many people are faced with when discovering they have been unfairly left out of a Will when their loved one passes away. Challenging a Will is always a hot source of contention with polarised views. Martin discusses what the Court considers when determining if someone is eligible to bring a Family Provision Application in Queensland.

Attwood Marshall Lawyers · Associate Martin Mallon – Family Provision Applications in Queensland
Introduction
While no one wants to think about their own mortality, living through the current pandemic has prompted many to do so. The pandemic has encouraged a lot more people to ‘bite the bullet’ and review their estate plan, which includes having your Will prepared and signed. However, for many people, losing a loved one can also bring on the devastating reality that they have been left out of a Will or not adequately provided for.
Everchanging family dynamics, blended families and estrangement, combined with the elderly accumulating more wealth, has led to an increase in disputes between family members when it comes to dividing an estate amongst surviving beneficiaries.
Family disputes over estates are all too common and in some circumstances estate litigation matters are inevitable. It is important to have a lawyer who practises exclusively in this complex area of law on your side, to help you move on with your life and assist you in handling these stressful and highly emotional situations.
Contesting a Will in Queensland by a Family Provision Application
Each state and territory in Australia have different processes and timeframes applicable when bringing a Family Provision Application. When someone dies, if you are left out of the Will, receive substantially less or feel aggrieved, you may be eligible to bring a Family Provision Application seeking an order from the Court for further provision from the estate. Although people often think the Will is being ‘contested’, technically, it is not the validity of the Will itself that is being challenged. It is the lack of provision made for the beneficiary in the Will that is being contested – i.e. the person making the Will did not leave them enough of their assets.
The foundation for bringing a claim in QLD is contained in Part 4 of the Succession Act 1981. Section 41 of the Act sets out the relevant provisions.
Who is eligible to contest a Will in Queensland?
In Queensland, in order to contest a Will (or if there is no Will under the rules of intestacy), you must be an eligible person. An eligible person is someone who falls within one of the following categories as per S40 of the Act:

The deceased’s spouse (husband, wife, de-facto partner, civil partner and dependent former husband, wife or civil partner
The deceased’s child (natural, step and adopted)
The deceased’s dependent includes a person who was wholly or substantially maintained or supported by that deceased person at the time of the person’s death who was either:
(a) a parent of that deceased person; or
(b) the parent of a surviving child under the age of 18 years of that deceased person; or
(c) a person under the age of 18 years.

What time limits apply to bring a Family Provision Application?
There are strict time limits applicable to claims brought against an estate.  In Queensland, a claimant has 6 months from the date of death to provide written notice to the executor or administrator of the estate of his/her intention to bring an application for further provision against the estate. If you don’t give formal notice within the required time limit, the assets of the estate may be distributed, and your rights may be severely impacted and prejudiced (see S.44(3)).
An applicant must then file formal Court proceedings within 9 months from the date of death. If you do not lodge formal Court proceedings within this timeframe, your right of action may be lost forever.
There are limited circumstances when a person can bring a claim outside these timeframes because they need to seek leave of the Court.
If you are seeking provision from an estate, it is imperative to act quickly and seek legal advice to ensure your rights are protected.
What does a court consider in a Family Provision Application?
Once you are able to prove to the Court that you are an eligible person to bring a family provision claim, the Court looks at these matters in a two-phase process.
Phase one – jurisdictional question: The Court will determine whether you have been left without adequate provision from the estate for your proper maintenance and support.
Phase two – if the first question is answered in the affirmative, the Court will look at what provision ought to be made from the estate.
There is no mathematical formula used to determine the second question and each case is determined on its own merits. A common misunderstanding is that adult children who survive their parents should inherit equally. Nothing could be further from the truth! The Court will examine all the circumstances in the matter. In Queensland, there are general matters the Court will consider, including but not limited to:

The applicant’s financial position, now and into the future;
The applicant’s physical and mental health;
Competing claims;
Size of the estate;
Any contributions the applicant has made to the deceased’s estate;
The relationship between the applicant and the deceased;
Any other matter that the Court determines is relevant.

Determining if someone has a claim and likely range of award
By taking detailed instructions and looking at a client’s position and the size of the estate, our experienced team at Attwood Marshall Lawyers can make an assessment to determine a client’s prospects of success.
Based on previous cases, we can indicate a likely range of award they may be entitled to.
Costs involved in Family Provision Applications
All costs involved in bringing a family provision application are at the discretion of the Court.
Generally, if someone brings an application for further provision and they are successful, some of the costs will be paid from the estate.
If a person brings a family provision application and they are not successful and the Court determines that the claim did not have merits, it is possible that the Court will order costs against that person and they will have to pay for the other parties costs.
Costs are an important consideration in all legal proceedings and particularly estate litigation matters where claimants may have modest means. It is important to seek legal advice in relation to your prospects for success. You do not want to bring an application if it does not have merits – you may risk having an adverse cost order against you.
When contesting a Will, do you have to go to trial?
In Queensland, the Court requires both parties to attend a mediation before the matter can proceed to a trial. In our experience, 99% of family provision applications are negotiated and settled at or before the mediation stage.
If the parties are unable to reach a resolution at mediation, it is possible an application will go to trial. These cases are rare, and it depends on the facts of the matter, the evidence and the number of parties involved. Going to trial can incur high legal fees which can have a substantial drain on the estate. For this reason, Attwood Marshall Lawyers always try to resolve matters by mediation as quickly as possible.
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 area. We have offices in Brisbane, Robina Town Centre, Coolangatta, Kingscliff, Sydney and Melbourne for the convenience of clients.
Will disputes and Succession Law can be extremely complex and differs between states and territories. An expert Estate Litigation and Will dispute lawyer who has industry leading knowledge and local experience can help you achieve a positive outcome in the most cost-effective way.
The team at Attwood Marshall Lawyers handle these sensitive matters with respect, professionalism and an in-depth understanding to help you determine your prospects of success.
Most cases are accepted on a ‘no win, no fee’ or deferred payment basis with no costs required up front to commence your claim, but are subject to our determination of you having reasonable prospects of success. We offer a free, no-obligation initial phone or video appointment with one of our lawyers provided your matter has basic prospects of a claim.
Please contact Estate Litigation Department Manager, Amanda Heather on free call 1800 621 071, direct line 07 5506 8245 or email [email protected] in order to arrange a free initial consultation.
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