Attwood Marshall Lawyers Wills and Estates Partner, Angela Harry, discusses why estate planning applies to everyone. Careful planning of the distribution of your estate involves protecting the assets you have worked so hard to acquire and to ensure your assets end up in the hands of those you want to benefit. It is important to get the right professional advice to plan and structure your estate effectively, both to cover loss of capacity while you are alive and when you die (not if – when).

Attwood Marshall Lawyers · Angela Harry – Estate Planning 101 – Part 1

Attwood Marshall Lawyers · Estate Planning 101 – Part 2
Everybody needs to have a Will and Enduring Power of Attorney
Many people think estate planning is simply writing a Will, but there is so much more involved. Estate planning is about putting in place documentation that directs how you want your affairs looked after if you cannot make decisions for yourself during your lifetime and how you want your assets to be distributed after you die. There are a suite of documents involved in this process which often includes your Will, Enduring Power of Attorney, Advance Health Directive, and superannuation beneficiary nominations, but can also involve a host of other documents, particularly when you have non-estate assets such as companies and family trusts to consider.
It is important that everybody, no matter their age or how modest their estate is, look at their estate plan and ensure they have the appropriate documentation in place. It is also essential that these estate planning documents are regularly reviewed and kept up to date with changing circumstances.
You never know when your number is up. Recent events with natural disasters, man-made catastrophic events and the Covid-19 pandemic are great reminders that life can be tenuous. We should all have our affairs in order so that the loved ones we leave behind can pick up the pieces and continue their lives. There is nothing worse than suffering the shock and grief of losing a loved one and then having to deal with complicated legal and taxation issues. Make sure you avoid this outcome and protect your family by getting these documents prepared.
What are the common myths associated with estate planning?
Myth 1: Estate planning is only for the wealthy
It is amazing how many people form the view that they do not have enough wealth to warrant putting in place the necessary estate planning documents.  Your estate is comprised of everything you own – when you consider the value of superannuation contributions, life insurance policies, the family home, shares, investments, motor vehicles and other personal belongings, people can often have more wealth than they realise. No matter the size of the estate, even a modest estate, it is important to have the documentation in place to determine how your assets are managed and distributed.
Many clients underestimate the value of their estate after they pass away. Quite often your life assurance policy amount in your Superannuation, plus your contributions, make it imperative for you to have your estate planning in place. There may also be substantial payouts to your estate or your dependants if you suffer fatal injuries at work. It is better to have the documents in order, rather than not.
Myth 2: I can just do it myself
With DIY Will kits available at the local Post Office, and access to the internet to download documents such as Enduring Powers of Attorney, many people assume they can complete these types of documents themselves. In reality, many DIY documents end up causing more problems than they solve.
With Will kits the main issue isn’t that the Will is ineffective or invalid but rather you end up with a valid Will that is legally binding but doesn’t achieve what you intended. There are so many errors we see in Will kits, whether it be the Will not being dated, the Will attempting to give assets that the individual does not own (e.g. superannuation or jointly held assets), or the Will being incorrectly witnessed, the list goes on. An incorrectly prepared Will can be disastrous and can result in costs that could have been avoided had it been prepared properly. A properly prepared Will should not only be correctly executed but should also give consideration to asset protection issues and tax considerations. You won’t get this in a DIY Will kit.
Similar problems can arise with Enduring Powers of Attorney prepared without the appropriate advice. Giving someone enduring power means that he/she is able to continue to act for you if you lose capacity to act for yourself. For example, if you develop a medical condition (such Alzheimer’s or dementia), suffer a head injury in a car accident or have a stroke which results in you being left in a vegetative state, you may still live for quite a long time but be completely unable to handle your own affairs or make any decisions. You can nominate different people to take control of financial matters and health related matters. With financial matters, you can also decide whether someone can step into this role immediately or only if you lose capacity. Given the far-reaching effects of the document, it is important to both appoint people you trust as well as tailor the terms of the document to suit your circumstances. The ‘tick and flick’ approach often applied to forms downloaded from the internet and prepared without legal advice can result in serious and often unintended consequences for the principal and attorney.
Changing Enduring Powers of Attorney
If you want to change your Power of Attorney, you need to have the capacity to do so. The process to change who you have nominated as your Enduring Power of Attorney is to:

revoke the existing document
provide a copy of the revocation to the Attorney under the old document
complete a new Enduring Power of Attorney

What happens if you don’t have an Attorney to act for you?
Approximately 50% of people do not have a Will, and the number is far higher for those who do not have an Enduring Power of Attorney. We often get calls from clients wanting to draft an Enduring Power of Attorney for a relative, usually a parent, who has lost capacity (often after being diagnosed with a condition such as Alzheimer’s Disease). Unfortunately, we have to advise them it is too late.
When it comes to financial matters, if you don’t have an Enduring Power of Attorney in place, your family cannot automatically step in and make those important decision on your behalf (e.g. selling property to fund care or accessing your bank accounts to pay bills). This generally require a formal appointment – and to obtain this they need to make an application to the Queensland Civil and Administrative Tribunal (QCAT). The process is fairly involved and there is a lot of paperwork that needs to be put in place. QCAT will look at the circumstance of the person who has lost capacity, they will require medical reports, and they need to look at the person’s assets and liabilities and what the future plan is. A hearing will take place which will determine who should be appointed as financial administrator.
Where there is conflict between family as to who should be appointed or in the instances where no one puts their hand up to take on this role, the reality is it usually ends up in the hands of the Public Trust Office.
It is important to get the right legal advice to ensure these documents are properly prepared giving consideration to the circumstances of the individual and being tailored accordingly. Attwood Marshall Lawyers are trained and experienced to consider these documents and how they should be structured.
Read more: Appointing Guardians and Attorneys – what can happen if you make the wrong choice
Myth 3: I don’t need to plan my estate; I plan to spend it all
Whilst some people may have the attitude that they plan to spend it all, the reality is that this often does not happen.  Although our life expectancy is generally getting longer, life is not nearly as long as you expect it to be. Most people are conservative by nature and don’t want to be left penniless before they die. You cannot spend your Superannuation or your death cover insurance! It is always better to have your Will and binding nominations done.
Myth 4: Estate planning is too expensive
To save money people often choose to create a DIY Will and complete other estate planning documents on their own. Trying to save on the upfront cost of engaging with a professional can be counter-intuitive and ultimately cost more in the long run. The price for putting in place a proper estate plan differs based on individual needs and circumstances. For those who do not have an appropriate Will or estate plan, they may avoid upfront professional fees, but the estate administration process or unintended tax consequences that can arise after death can be significantly higher. It is amazing how much people spend each year on insurance for events that may never happen yet do not wish to invest in a properly prepared estate plan that, if done properly, can save their estate and their intended beneficiaries substantially in the long run.
What information should I take with me, or expect to discuss, at an estate planning appointment?
Many people come to an estate planning appointment unprepared. The information which needs to be discussed includes:

Family situation: We want to know who’s who in the family. Are there children or grandchildren, if so, what are their names, addresses, ages, and occupations. Often people are surprised when we ask about children’s occupations. This information is important to consider because it can help determine if a beneficiary may be at risk. For example, if you have a beneficiary who is a doctor, lawyer or accountant, they may not want assets in their names because they are at risk of being sued in their profession. There are ways to structure documents to protect a beneficiary who is at risk. Asking these sorts of questions helps to identify that risk.
Additional risk factors: This information allows us to identify any additional risks that need to be factored in, such as if a beneficiary has a disability, an addiction or substance abuse issue.
Assets and liabilities: Most people think that everything they own can be distributed by their Will. Assets that are jointly held, in superannuation, or trusts do not automatically form part of the estate to pass in accordance with the Will.  The ownership or control of these assets need to be considered so that the appropriate documentation can be prepared.
Superannuation details are something many people forget to bring to their estate planning appointment. It is not uncommon for an individual to have multiple superannuation accounts and have no idea who is named as beneficiary. Reviewing the superannuation information is important to determine if a beneficiary nomination is required and how that nomination should be structured.

How does superannuation fit in to my estate plan?
A common misconception is that you can leave your superannuation in your Will.  The treatment of superannuation upon your death is not the same as the treatment of other assets.  Technically, you do not own your superannuation balance until it is paid out to you.  In the meantime, it is held by the superannuation fund upon trust for the members.  What happens to your account when you die depends upon the terms of the trust deed governing the superannuation fund, the superannuation law, and the terms of any binding or non-binding nomination you have made to your superannuation fund.  This means that your superannuation entitlements may not be treated in the same way as your directions given in your Will, and you should give consideration to giving directions to your superannuation fund as to how you want your superannuation entitlements paid in the event of your death.  Note that there can be significant tax implications of any nomination you make and you should get appropriate advice from your accountant and financial advisor.  Any binding death benefit nomination will lapse 3 years after the date it was made unless it is a non-lapsing binding death benefit.
What should be considered when nominating an executor?
A Will is designed to distribute the assets that you own to your intended beneficiaries on your death. To ensure the estate passes to those you intend one of the most important considerations is who to appoint as the Executor. The role of the Executor in the will is a crucial one. The role of the Executor is to ensure that the terms and conditions of the Will are carried out, including calling in all assets, paying all expenses, and distributing the estate in accordance with the Will, including the set-up of the Trusts under the Will.
If you have included minors as beneficiaries, then the function of the executor may also extend to holding certain assets on trust until the minors reach the age nominated in the Will.  In holding those assets on trust the role then extends to controlling the day to day operation of the trust including investment of trust assets and distribution of income and capital to the intended beneficiary.
It is common for people to nominate family members or friends to take on this role. It is important that those nominated are going to be both willing and capable to take on that role (often for years to come).
What should be considered when nominating an executor?
A Will is designed to distribute the assets that you own to your intended beneficiaries on your death. To ensure the estate passes to those you intend one of the most important considerations is who to appoint as the Executor. The role of the Executor in the will is a crucial one. The role of the Executor is to ensure that the terms and conditions of the Will are carried out, including calling in all assets, paying all expenses, and distributing the estate in accordance with the Will, including the set-up of the Trusts under the Will
If you have included minors as beneficiaries, then the function of the executor may also extend to holding certain assets on trust until the minors reach the age nominated in the Will.  In holding those assets on trust the role then extends to controlling the day to day operation of the trust including investment of trust assets and distribution of income and capital to the intended beneficiary.
It is common for people to nominate family members or friends to take on this role. It is important that those nominated are going to be both willing and capable to take on that role (often for years to come).
What happens if you do not have a Will?
If you do not have a Will you are said to die intestate. Intestacy may occur not only where a person fails to make a Will but also for other reasons including that the will fails to distribute all of their assets, the Will is invalid, the person did not capacity to make the Will, the Will has been poorly drafted. When our estate falls under the laws of intestacy your assets will be distributed according to a pre-determined statutory formula. This means that certain family members will receive a defined percentage of your estate. Each State and Territory has different legislation which deals with the distribution of an intestate estate with the legislation being slightly different.
In circumstances where there are no relatives alive who fall within the class of beneficiaries on intestacy, the estate can end up in the hands of the State Government.
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers is a leading estate planning firm with one of the largest and most experienced teams in Australia. We have a holistic approach to estate planning. We can help mitigate the risk of someone challenging your estate and will look at what assets there are and how they can be structured to ensure the wealth you have built up goes to who you intend after you die.
Read more: A Binding Death Benefit Nomination can determine how your self-managed superannuation funds are dealt with upon death
Read more: Don’t get complacent about your Will – now’s the time to get it done
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]
The post Estate Planning 101 – what is ‘estate planning’? What you need to do to put a plan in place to protect your estate and your family appeared first on Attwood Marshall.

There’s no question that Australia’s Aged Care sector needs to be overhauled and there is a massive disconnect between what the Australian public expects, and what is being delivered. Attwood Marshall Lawyers Senior Associate and accredited Aged Care Professional, Debbie Sage, reviews the current state of this ever-expanding and often overlooked area of our society.
Australia’s aged care sector, which includes not-for-profit, private, and religious operators, are devising a huge PR campaign to attempt to change the conversation and win-over Australians.
Adam Connolly from Apollo Communications, who was the former Daily Telegraph political reporter and senior media adviser to John Howard, has been given the task of changing the reputation of aged care providers, and in doing so wants to expose the federal government’s shortcomings.
Prior to the COVID-19 outbreak, the aged care industry was already under scrutiny with the Australian Government announcing a Royal Commission into Aged Care on 16 September 2018.
COVID-19 has had a horrific impact on the elderly with a large percentage of fatalities linked to aged care facilities.
The aged care system
In Australia, there are various services available to people as they enter their senior years and look for assistance in order to continue to live independently, or for accommodation to suit their personal and health care needs.
The Aged Care sector is set to expand to meet the needs of the growing older Australian population. This means providing 125 places or packages (in residential care, home care and restorative care) per 1,000 people aged 70 or older in 2021-22. Although most of these places are allocated to the residential care segment, the home care segment is growing rapidly reflecting consumers’ preference to remain at home for as long as possible.
Aged care services available include:

At Home Care (The Commonwealth Home Support Programme and Home Care Packages)
Residential Aged Care (also referred to as nursing homes)
Privately Funded Care (Retirement Villages)

Julie Lockeridge, Principal Adviser and Aged Care Specialist at Lockeridge Financial Advisory, understands the difficulties faced by older people who are changing their living arrangements, and the impact this can also have on adult children and other family members.
“Age is inevitable. It comes to all of us if we are lucky. What distinguishes us is how we plan for it. A key element in the plan is the appropriate aged care. The most important thing to understand is that there is no right or wrong way: it really comes down to what you feel is right for you,” said Ms Lockeridge.
As an experienced accredited financial planner in this complex area, Ms Lockridge highlights the need to obtain advice from qualified practitioners when considering a transition to care. ‘It is imperative families plan ahead and get good advice before making decisions. It can make a huge difference to the financial bottom line of the people going into care.”
The Royal Commission into Aged Care
The Royal Commission into Aged Care Quality and Safety is expected to provide a final report by February 2021. This investigation will oversee a wide range of issues relating to the quality and safety of aged care services, and the future demand for these services throughout Australia.
Up to July 2020, there were 9,301 public submissions and 6,321 phone calls to the information line providing information and evidence to the Royal Commission, with the most common concern reported being staffing issues, isolation and unmet needs of residents.
Submissions on the impact of COVID-19 and in response to the matters to be examined in the hearing on COVID-19 closed on 4 September 2020. These submissions provide valuable insight and lessons to be learnt in order to better respond to future pandemics, infectious disease outbreaks or other emergencies.
Aged Care funding has historically been a contentious issue
Last week, Health Minister Greg Hunt announced the Federal Government will be boosting aged care funding by $563.4 million to expand on support programs for providers in response to COVID-19. This takes government support for aged care to over $1.5 billion since the pandemic began.
A breakdown of how the additional funding will be allocated

$101.2 million for aged care preparedness to:

provide COVID-19 infection control online training
provide emergency response teams, remote locums and a surge workforce, and reimburse expenses incurred due to COVID-19 cases
provide access to telehealth consultations
provide onsite pathology services
fund the Commission to work with providers on improving infection control.

$444.6 million to ensure continuity of the aged care workforce including:

$234.9 million for a quarterly COVID-19 ‘retention bonus’ to be paid to care workers in residential and home care
temporary increases to residential care subsidies; supplements for rural, remote and homeless service providers; and home care package subsidies
$70.2 million in emergency COVID-19 grant funding for Commonwealth Home Support Programme (CHSP) providers to fund services such as shopping and meal delivery for people in self-isolation and
$12.3 million for additional My Aged Care staff to handle COVID-19 enquiries.

a further $50 million for Meals on Wheels and similar CHSP service providers, and a further $9.3 million for My Aged Care, to help older Australians access food and meals
$205 million for a one-off COVID-19 payment for residential aged care providers recognising additional costs incurred during the pandemic.
a one-year extension to the Business Improvement Fund, which gives short-term grants to residential aged care providers at risk of severe financial difficulty.

Funding recommendations from The Aged Care Royal Commission
The Aged Care Royal Commission has recommended that a 1.01% tax increase (or 0.89% increase in the Medicare levy) would fit within the amount Australians have indicated they are willing to pay for high-quality care.
A report released on 07 September 2020 stated the funding would go towards a wide range of reforms including:

Mandatory four-staff staffing levels in aged care homes
Mandatory Certificate III training for personal care workers and a national personal care worker register
Uncapping the number of Home Care Packages
Improved access to GPs, psychologists, dentists and rehabilitation

The new system would require 30,000 new full-time jobs to be filled plus another 50,000 workers just to meet growing demand.
To attract staff, the report recommends raising pay rates to be equivalent of hospitals with a 5.5% a year increase for nurses and other skilled jobs in aged care.
Mistakes made at a Federal level
The Aged Care Quality and Safety Commission is the national regulator of Australian Government-funded aged care. The Commission approves providers; assesses and monitors services for compliance with the Aged Care Quality Standards; takes action (such as imposing sanctions) to resolve non-compliance; and handles complaints.
Reports show the aged care homes that were hardest hit in Victoria were given a clean bill of health and near perfect compliance ratings by the federal regulator only months before COVID-19 wreaked havoc.
Fifty homes across Melbourne have recorded deaths during the pandemic. The highest death tolls were at St Basil’s in Fawkner where over one third of the facility’s residents died.
Despite compliance from the regulator being granted for most homes, the coronavirus pandemic has exposed significant holes in infection control measures for many facilities.
However, not all facilities were compliant prior to the pandemic, and an ABC analysis also found that one in three of the Victorian nursing homes with clusters of more than 50 cases were found to be non-compliant with at least one quality standard during their most recent audit by the commission.
The standards that were not met included:

ensuring residents had safe and effective personal and clinical care
demonstrating effective management of risk
minimising infection risks

A need for change
Last December, amendments to the aged care legislation amendment (new commissioner functions) bill 2019 were put forward to:

Improve transparency and accountability around complaints
Staffing levels
Finances

The Coalition voted against all amendments.
If these amendments had gone through, they would have been a game changer for the aged care sector.
It is this information that needs to be carefully considered when people are looking into aged care services and researching facilities. Standard of care should be transparent, with people able to enquire about:

The number of staff working at the facility
Qualifications and training of staff
Historical data on patient incidents including prevalence of pressure sores, weight loss and malnutrition, falls, infection rates and admissions to hospital
Prior complaints made against the facility

Unfortunately, this information is considered “commercial in confidence”. What this means is this type of disclosure identifies information that if disclosed may result in damage to a party’s interests or trade secrets.
What to be aware of when considering aged care services
Putting the reputation of facilities before the wellbeing of residents needs to change. It is imperative to research and speak to an Accredited Aged Care Professional when you, or a loved one, are transitioning into aged care. Glossy brochures and advertising from aged care providers are not going to tell you everything you need to know when making this important decision.
“Aged Care choices are complex, making the wrong decisions can come at a high price both emotionally and financially. Some of the important financial decisions people are faced with are often highly emotional too. In deciding what is the right choice, you need to consider a range of factors that include the ability to access the care you want, whether or not care will be affordable, the impact on pension entitlements, different aged care costs, potential tax consequences and the effect on estate planning”, said Ms Lockeridge.
When considering what options best suit your health and wellbeing now and into the future, you will want to gain insight and information regarding:

The aged care industry
Different choices available in aged care accommodation
Aged Care Assessment Team (ACAT) and home care
Centrelink and Veteran’s Affairs
Residential care fees and what you need to understand when entering a Retirement Village or Aged Care Facility Agreement

It is always recommended to visit facilities you are considering multiple times so that you can see first-hand the type of environment residents are in and the way the staff operate.
Clients and family members should also seek the right advice from experienced professionals in this area when making important decisions about your living arrangements and care requirements prior to signing any agreements. There are complex legal, financial planning, Centrelink, and taxation consequences of the transition to care. Getting the right advice and structuring your affairs properly can make a huge difference to your financial bottom line as well your legal and financial security.
“Getting the right financial advice when planning for a move to aged care can help you understand the cost by identifying the fees and charges that will apply, evaluating the affordability of aged care in the short and long term, calculating your pension entitlement and other benefits. You can be provided with a comprehensive analysis of your options so that you can make informed choices,” said Ms Lockeridge.
Financial arrangements vary widely and need to be considered in light of your own financial circumstances. There is no substitute for quality aged care advice.
To answer some more frequently asked questions about aged care, click here.
Wills and Estates Senior Associate, Debbie Sage, is an Accredited Aged Care Professional having 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 and funding care plans that best meet the needs of clients.
Attwood Marshall Lawyers supports the elderly and pushes for change
Ms Sage is passionate about the aged care sector and experiences these problems with clients and their families on a daily basis. She believes the federal government should accept full responsibility for the sector and provide appropriate legislative and regulatory frameworks to ensure operators of care facilities have adequate training, resources and funding to deliver a high standard of care to residents. No doubt the findings of the Royal Commission will highlight these issues. The issue will be whether the federal government accepts the recommendations and acts accordingly.
Attwood Marshall Lawyers have a dedicated team that practice exclusively in the Aged Care sector. For enquiries concerning any transition to care issues, services and agreements, please contact Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email [email protected] or free call 1800 621 071. In most cases we offer a free initial phone consult to determine if we can help you and your family.
The post The Aged Care Sector – Lawyer says it needs fundamental change and more than a PR spruik! appeared first on Attwood Marshall.

An economic downturn and uncertainty around how businesses can recover from the impact of COVID-19 has created a spike in director and shareholder disputes for many businesses. Disputes can be a major distraction and it is important to forge a plan to resolve disputes quickly and cost-effectively, writes Attwood Marshall Lawyers Commercial Litigation Senior Associate, Charles Lethbridge.

Small businesses under pressure in a climate of uncertainty
In March 2020, things took a dark turn for businesses and their employees as the coronavirus pandemic permeated its way though our economy. Many businesses had to quickly change tack while others simply had to close their doors permanently.
According to the Australian Bureau of Statistics’ most recent survey of COVID-19 business impacts, more than a third of small to medium businesses were pessimistic about making it through the next three months and are finding it difficult to meet their financial commitments, as reported by businesses in August 2020.
It is not surprising that as a result of the COVID-19 pandemic, we are seeing an increase in director and shareholder disputes for many due in part to panic and loss of profits. A slowdown in the economy has left a bitter aftermath as businesses accumulate debt and try to navigate their way through the current economic challenges. Changes to government support packages, such as JobKeeper, combined with leasing and loan deferral periods coming to an end and the QLD/NSW border remaining closed will only apply more pressure to those businesses already struggling in the lead up to Christmas.
There’s a lot at stake for business owners
It is often the case for small businesses that the company directors and shareholders are the same and they each have significant financial interests in the company, with the business being a significant source of income (and in many cases the only source).
Uncertainty about what the future holds, and concern about future consumer demand, are a major focus for business owners. Without a clear path forward, it can be difficult for business partners to agree on whether they want to continue to invest in their business or cut their losses and close their business.
When starting a company, a well drafted Shareholders Agreement can outline dispute resolution processes to be undertaken by shareholders with a view to resolving disputes at an early stage. Unfortunately, many shareholders in companies fail to draft and sign a Shareholders Agreement. When relationships between shareholders sour and conflict arises, unfortunately this means the tools may not be in place to manage and resolve the conflict, as would be the case if a well drafted agreement was in place.
What disputes can arise between directors and shareholders?
Even without the added pressure and restrictions implemented by COVID-19, disputes between directors and/or shareholders invariably arise during the course of business for various reasons.
Situations that can escalate and lead to director/shareholder disputes can include:
A lack of clarity around roles
It is important that each director’s role is clearly defined to avoid blame games.
Arguments over contributions/effort
Underperformance can be a sensitive point of contention between business partners, where one side may feel they have contributed more than the other – shareholders inevitably overvalue their contribution (sweat equity).
Different opinions as to management and the direction of business
Differing opinions can have a significant impact on business partners being able to resolve matters and successfully move forward.
When it comes to disputes among business partners, often common sense is left for dead. In the heat of a dispute, shareholders can find it difficult to focus on a commercially sensible outcome. Parties engage in a blame game and inevitably overvalue their contribution (sweat equity).
Advantages of having a Shareholders Agreement
Although it is impossible to predict and guard against every type of dispute that may arise between business partners or shareholders, a well drafted agreement will usually have a dispute resolution mechanism which includes a ‘buy out’ or ‘sale’ option with an agreed path or method for valuing the business, as well as reciting the agreed initial financial inputs and what is to happen with the intellectual property of the business.
It may also govern succession issues and provide for appropriate insurance so that if a business partner dies or becomes permanently disabled, there are funds to pay out the departing partner’s share with the remaining partner/s able to continue the business.
Although certain businesses have different issues and may need specific clauses dealing with matters exclusive to that area, having an agreement can save a lot of time, emotional energy, money and legal costs.
The best approach to resolve disputes
We have found that by getting parties to communicate openly and honestly about their roles and contributions and by exploring their interests, disputes can be resolved at an early stage. We can assist our clients by generating viable options without having to resort to litigation. Resolving a dispute in this manner will ultimately save you time and money and will give both sides more control over the outcome.
What if shareholder/director disputes are unable to be resolved?
If disputes are unable to be resolved, there are various avenues available to parties through which to seek redress under the Corporations Act. These avenues include seeking a court order that a company be wound up on the “just and equitable grounds”. This is an application usually brought when relationships have irretrievably broken down, when a director is acting in his or her own interests to the detriment of the company, or where there is a deadlock.
Where minority shareholders have been oppressed by majority shareholders, they may bring a ‘derivative action’ or a shareholder oppression action under the Corporations Act.
How can Attwood Marshall Lawyers help?
When seeking to resolve a dispute between business partners, addressing the issue at an early stage is essential. This can reduce interference to business operations, or ultimately allow all parties to move on with their life. Early intervention can also reduce the cost, delay and stress associated with litigation. Getting appropriate advice from an experienced dispute resolution lawyer can assist parties to engage in open and honest discussion which is critical to resolving all matters.
Attwood Marshall Lawyers specialise in advising on breaches of shareholders’ agreements, explaining party’s obligations and assisting with deadlocks, buyouts and separations.
Attwood Marshall Lawyers is an experienced Commercial Litigation law firm, currently working with many businesses impacted by COVID-19. We are ready to help you resolve any business disputes. If you need urgent and quality legal advice and representation, call us today. Commercial Litigation Department Manager, Amanda Heather, can be contacted on her direct line 07 5506 8245, mobile 0425 260 837 and email [email protected]
The post Economic challenges cause a rise in director and shareholder disputes appeared first on Attwood Marshall.

Take caution when making important decisions about who to appoint as your administrator to manage your legal and financial affairs. Attwood Marshall Lawyers Estate Litigation Senior Associate, Lucy McPherson, explains the issues with the Public Trustee Offices and why people should consider the alternative options available.

Attwood Marshall Lawyers · Public Trust Office – Lucy McPherson
 
The QLD Public Trustee and NSW Public Trustee and Guardian
The Public Trustee offices perform certain roles in our community, including acting as executor/administrator of deceased estates and managing the financial affairs of vulnerable individuals who are incapable of managing their affairs on their own. There is a general assumption within the community that the QLD Public Trustee and NSW Public Trustee and Guardian are the most suitable and accessible options. However, these state bodies have a history of problematic dealings and gross mismanagement with many people negatively impacted after putting trust in these organisations.
It’s important for the community to understand the various options available when seeking assistance with drafting a Will, Executor services, financial administration and establishing and managing trusts. The services provided by the Public Trust Offices are not free, despite many people thinking that they are. People are commonly enticed by the offer of a “free Will” but during this process the Trust Office solicit work in relation to the administration of the Will-maker’s estate. We have found a common scenario is where the Public Trust office may encourage a Will-maker to appoint the Trust Office as Executor in the Will. When this occurs, the Trust Office will receive significant remuneration upon administering the Will-maker’s estate. Many people are not aware that they can receive a more personalised service from professionals and Private Trustee Companies.
What situations are the Public Trustee involved in?
Public Trust Offices are a statutory body who were created to provide services to assist those who are more vulnerable in our society. The sort of situations that Public Trust Offices can be involved in range from:

Acting as an Executor of an estate
Being appointed as Financial Manager of someone who may not have capacity to manage their own financial affairs. In New South Wales, this appointment is called Financial Manager, in Queensland this appointment is referred to as an Administrator.
Being appointed as a Trustee – if someone is unable to manage their finances – such as a minor, the Public Trustee can be appointed to manage investments, allocate allowances and manage trust funds.

There may be instances where someone who is caring for another person, such as a social worker, may contact the Public Trustee and express concerns for that individual and their capacity to manage their financial affairs. The Public Trustee can be involved in making an application through Queensland Civil and Administrative Tribunal (QCAT) or NSW Civil and Administrative Tribunal (NCAT) to take over the management of a person’s financial affairs.
Last year there were explosive claims made by clients of the Public Trustee in relation to their financial interests not being protected which caused significant financial loss and distress for those who had put their faith in the Public Trust Office. The allegations of a dysfunctional office culture and corrupt conduct should be a red flag to anyone who blindly accepts the Public Trust Office as the most suitable option to entrust their legal and financial affairs.
Previously in the media:
Brisbane Times – Misconduct Probe
ABC News – Man Sues NSW Public Trustee
Courier Mail – Whistleblower Slams Public Trustees Office
Brisbane Times – Public Trustee Suspended Amid Serious Allegations
SMH – NSW Trustee client dies in squalor
What are the alternatives to having the Public Trust Office appointed as your Financial Manager, Administrator or Trustee?
Many people do not realise that there are several alternatives, including professionals and Private Trustee Companies, who can administer deceased estates and manage protected estates/conduct the role of trustee. A Private Trustee Company endeavours to provide a more personal relationship with their clients and an overall better experience. The level of service that an individual receives through a Private Trustee Company is not comparable to that received through the Public Trust Office. The rates charged by both Public Trust offices and Private Trust Offices are comparable but they do vary between organisations, so it is important that people ask what the charges for services are.
What is the process for having the Public Trust Office removed and/or a Private Trustee appointed?
An application needs to be made to the Court to seek the removal of a Public Trust Office from the role of Financial Manager or Administrator and the appointment of the new Private Trustee.
The reason a Court application is required, as opposed to an application through one of the Tribunals such as NCAT or QCAT, is because when there is remuneration involved, the Court essentially needs to approve it.
The following process will apply when removing the appointment of the Public Trustee:

Make an application to the Court
Provide evidence before the Court in relation to why there has been some difficulties and why the relationship with the Public Trust Office has deteriorated.
Provide evidence of the suitability of the incoming Private Trustee Company.

Who can bring this type of application to the Court?
The individual in question generally doesn’t have legal capacity. Those who have impaired capacity are generally the subject of these types of applications.
Under the legislation it stipulates that any party with an interest can bring these types of applications before the Court.
People with a sufficient interest can include a family member, sibling or parent who may be concerned about the current situation.
What kind of evidence is required?
If the Court hasn’t dealt with the individual in question before – the following evidence will be required:

evidence that the individual does not have capacity, in the form of a medical report/s from a medical practitioner;
evidence from any family member about their opinion of the current situation. The Court wants to know the family is supportive of the application;
evidence in relation to the suitability of the incoming Private Trustee Company – which would usually take the form of evidence from the Private Trustee Company highlighting its experience in these types of situations and providing its consent and willingness to take on the role.

The court will also want to see financial reports in relation to the individual’s financial affairs and the nature of their protected estate.
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers is a leading estate litigation firm with extensive experience in complex Public Trustee matters. We can provide legal services for those experiencing problems with the Public Trustees including assisting with:

matters involving the mismanagement of affairs under financial management orders
matters involving the mismanagement of estates where the Public Trustee has been appointed Executor
negotiating the exorbitant fees charged by the Public Trustees
applications to the Court to seek the Court to appoint alternative Trustees in the place of the Public Trustees

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.
 
Read more:
Families forced to take legal action against public trustees
There’s no such thing as a free Will
Unfair commissions and financial mismanagement – NSW Trustee and Guardian cannot be trusted
Inquiry into NSW Trustee and Guardian backed by politicians
The post Don’t blindly trust the Public Trustee – there are alternative options available appeared first on Attwood Marshall.

Superannuation funds typically offer three types of insurance for their members. Attwood Marshall Lawyers Compensation Law Senior Paralegal, Amy Lewis, explains the different insurance policies and what to look out for to ensure you have access to the right benefits when you need them most.

 
How age makes a difference to your superannuation insurance
If you are over 25, most superannuation funds automatically provide Life Cover (also known as Death Benefits) and Total Permanent Disability (TPD) Cover. In addition, some superannuation funds may provide income protection however, this is not a standard inclusion.
It is important to be aware that under superannuation legislation, funds will cancel insurance of any inactive accounts that have not received a contribution in at least 16 months. Individual funds may also have rules around minimum account balances required for insurance policies to remain active. If you have made, or are considering making a COVID-19 early release superannuation withdrawal, it is imperative to understand the effect this may have on your ongoing insurance cover.
As of 1 April 2020, superannuation funds no longer offer insurance automatically to new members if:

The member is under 25 years old
The account balance is less than $6000

For those under 25, insurance will only be automatically included if you work in a dangerous occupation or if you specifically request insurance in writing from your superannuation fund.
What type of cover is available through superannuation?
Life (Death) Cover
Death insurance pays out your insured amount when you die or suffer from a terminal illness.
Death cover can provide you the peace of mind knowing that during a difficult and challenging time, you and your family will have financial resources available.
Trauma Cover is not included under a superannuation life cover policy and can be purchased as a separate policy. Trauma cover provides a lump sum of money to cover immediate medical expenses and other financial needs when a critical illness or injury occurs.
Read more: Terminal Illness Benefits under Superannuation
Total and Permanent Disablement (TPD) Cover
A permanent injury or illness can make it difficult or impossible to return to work. If you are unable to return to work due to an injury or illness, TPD insurance can help cover your ongoing expenses.
TPD claims are usually paid in a lump sum payment however, some new policies (such as the Sunsuper ‘TPD’ Assist policy) provide annual instalments on the basis you continue to be deemed as totally and permanently disabled.
Each insurer has a different definition of what it means to be totally and permanently disabled – it is important to understand your cover and the rules that apply.
Read more: What is a TPD benefit?
Income Protection
If you are temporarily unable to work due to injury or illness, income protection can replace up to 75% of your usual salary once you have served your waiting period.
Waiting periods can vary from 14 days up to several months so it is important you select a waiting period which suits your budget requirements. In addition, you can also choose your benefit period. The benefit period is simply how long you receive payments for (providing you continue to be unable to work). Benefit periods can range from months to years and even up to specific ages such as 65.
Remember that income protection only provides cover if you are injured or ill.  It does not cover you if you for loss of income from reduced hours of job loss.
What to look out for in your superannuation insurance policy
Although insurance through superannuation can be cost effective, it is important your insurance meets your personal needs and expectations.
Here are some tips to consider:
Sum insured

Ensure your insured amount meets your requirements. This is important for all types of insurance products available through superannuation. If you need a higher level of cover, contact your fund to request an increase.

Waiting and benefit periods

When it comes to income protection, be aware of your waiting and benefit periods. The waiting period should suit your needs and budget – can you survive without income for x amount of days?  Also, ensure your benefit period reflects how long you wish to receive income protection payments for (providing you continue to be unable to work).

Cut-off age

Insurance within super usually has an age cut-off compared to life insurance products available directly through insurers. It is important to review this age requirement especially as you get older. Each fund’s policies will differ. Usually TPD insurance and life insurance cover in superannuation will cease at age 70 (some funds may be earlier).

Tax deductions

Depending on your financial position, it may be beneficial to hold income protection outside of super to enable you to claim these premiums as a tax deduction. Insurance premiums paid through super accounts are currently not tax deductible.

Cover ending

Understand your funds’ rules in relation to insurance automatically being switched off. Does your fund have a minimum account balance or contribution requirement to maintain coverage? This is particularly important if you have made a COVID-19 super withdrawal or are considering making a COVID-19 withdrawal.

Minimum working hour requirements / casual employment

It is becoming more common to see stricter requirements for casual employment or those working under the ‘minimum working hour’ requirement.

For example, a standard definition for a TPD claim for an individual who is working full time may look like:
Unlikely to Return to Work
The insured person is unable to follow their usual occupation by reason of illness or injury for three consecutive months and, in our opinion, after consideration of medical or other evidence satisfactory to us, is unlikely to ever to be able to engage in any regular remuneration work for which the Insured Person is reasonably suited, having regard to their education, training or experience up to the time of the assessment of the claim.
A casual or part-time worker who does not work the minimum hours may also be required to have suffered an inability to perform at least two activities of daily living in addition to the above. Activities of daily living means:
(a) bathing and showering;
(b) dressing;
(c) moving from place to place, including in and out of bed and into and out of a chair;
(d) eating or drinking;
(e) using the toilet.
This could mean an individual may well miss out on a TPD claim simply due to their employment status.
Review your cover regularly

It is important to review your cover and insurance requirements regularly. Some funds will provide additional cover when you undergo a life event such as taking out a mortgage, marriage, children or age milestones without the need to undergo medical assessment.

Get the right advice
Before taking out a financial insurance product, you should seek advice from a financial planner to ensure your needs are adequately met.
In the event you need to make a claim against your insurance policy, we are here to help. We strive to get your claim lodged with the insurer as soon as we can. We stay on their case until we get a resolution for you. Many clients have tried to lodge claims themselves or have allowed their financial planner or insurance agent to assist. It is very important that you engage experienced lawyers in this area, as you only have a limited time and one opportunity to claim a policy payment. Sometimes, mistakes are made in the application which can delay or even compromise your payment. Please make sure you get the right advice.
 
It is our renowned intent to help people through rough times. If you would like assistance to help access your entitlements through superannuation, contact Compensation Law Department Manager, Kelli Costin, on 07 5506 8220 or email [email protected] for your free initial appointment.
The post When was the last time you reviewed your superannuation insurance policies? Don’t assume you’re covered! appeared first on Attwood Marshall.

Writing a Will takes careful consideration. A Will should be a true reflection of the Will-maker’s intention and what they want to happen to their assets when they die. Attwood Marshall Lawyers Estate Litigation Senior Associate, Lucy McPherson, explains what undue influence and unconscionable conduct is in the context of writing a Will.
 

Attwood Marshall Lawyers · Undue influence and unconscionable conduct
What is undue influence and unconscionable conduct?
Undue influence is a very serious topic. It is when a person’s free will is overborne by the influence of another person. It means the act they embark on is a result of coercion by another individual.
Unfortunately, people can take advantage of their older relatives and coerce or intimidate a Will-maker in order to have that person alter their Will in a way that does not truly reflect their wishes.
Unconscionable conduct is a broader term used in relation to transactions. To be considered unconscionable, conduct must be more than simply unfair. The conduct must go against conscience as judged against the norms of society. We see unconscionable conduct a lot in elder abuse cases.
Unconscionable conduct is where a benefit is gained through deliberate exploitation of a power imbalance or ‘special disadvantage’. An example of unconscionable conduct is where child persuades an elderly parent with disabilities to transfer their property to the child and that parent may have impaired capacity and may not understand what has taken place.
What is the correct process that should be followed when writing a Will?
By following the correct process when drafting your Will, you can ensure you not only protect your assets, but you consider and appoint the most suitable Executor, assign a guardian to your children, if applicable, and give specific instructions on how your assets will be distributed to your intended beneficiaries.
There are formal requirements set down by legislation in relation to how a Will is to be drawn and executed. These are in place to ensure the correct procedure is followed and the integrity of the document is preserved.
A Will needs to be executed in front of two witnesses who both need to witness the testator’s signature on the Will. The Will needs to be signed on every page of the document to make sure there are no alterations that occur to different pages once the Will has been finalised.
If the integrity of the document comes into question, then those who witnessed the signing of the document can provide evidence to the Court as to exactly what occurred at the time the document was created.
What if someone is being unduly influenced when writing their Will?
We have many enquiries from family members concerning the validity of Wills that have been signed by their parents or grandparents in circumstances where there are suspicious circumstances concerning the provision of instructions and signing of the Will.  One of the most common scenarios that we face is that an elderly parent, after a long history of previous Wills which leaves their assets equally to their children, suddenly and without reason changes their Will shortly prior to their death to leave their entire estate to one particular child, or a friend or carer.
A very succinct statement of the law in relation to this area is as follows:
“To be undue influence in the eye of the law there must be – to sum it up in a word – coercion…..The testator is in such a condition that if he could speak his wishes to the last, he would say, “This is not my wish but I must do it”.
Undue influence is more than just persuading someone to write their will a certain way. Coercion must be applied. Coercion is pressure that overwhelms the testator’s own wishes. The issue of undue influence being used by a family member or beneficiary in  relation to a person making or changing their Will is a very difficult matter to prove in Court.
A common example is where a child of an elderly parent unduly influences their parent to change their will in the child’s favour. If the elderly parent dies soon afterwards, their intended beneficiary must try and demonstrate to a Court the Will is not the person’s true intent and a reflection of their actual testamentary intentions.
If a beneficiary or executor believes their deceased relative has been unduly influenced, they need to act quickly and gather evidence in relation to the circumstances that surrounded the drafting of the Will and the execution of that document. The Court examines those circumstances and can make a determination.
A Court will take into account:

Who gave instructions for the Will (if a third party has given instructions on the Will, and not the Will-maker themselves, this can be a red flag as this could suggest that the Will may not be a product of the Will-maker’s own free will and intent)
Whether the person making the Will is someone at risk of being taken advantage of
The nature of relationship between the parties in question and whether the influencer applied pressure or coerced the Will-maker
If a disposition in the Will drastically differs from the terms of the former Will or a history of will-making patterns.

What is currently in place to protect vulnerable Will-makers from undue influence and unconscionable conduct?
It is important to ensure that a Will-maker sees a suitably qualified lawyer that specialises in this area. An experienced lawyer can help mitigate against these types of situations occurring. Receiving the best advice when the Will is drawn is the best protection you can have if you want to make sure your Will is upheld and your intended beneficiaries protected.
A carefully crafted strategy to avoid claims with the correct legal advice can save you and your family a lot of anxiety and ultimately, legal costs. A small investment now may avoid a much larger expense, both financially and emotionally, to your estate and your family later on.
It is also important to watch for any red flags of elder abuse and if you have concerns, contact a lawyer for advice immediately.
Case studies can be a useful tool
When consulting with clients, it is always helpful to use examples so the client can appreciate and understand what might happen if they give certain instructions. This is a great way for the client to learn about the consequences and ramifications of the decisions they may be making.
We recently encountered a young man who was concerned about his mother. One of his siblings had taken their mother, who was legally blind, to go and see a solicitor to make her Will.
The mother had been legally blind for 30 years and allegedly did not have any idea about the content of the Will she was signing. She had quite a significant estate. There are clearly some elder abuse issues arising from this situation. The mother was vulnerable and was being taken advantage of by one of her children.
How does Attwood Marshall Lawyers minimise risk of undue influence or unconscionable conduct?
Firstly, we always interview our client, the Will-maker, alone. This is best practice and helps make sure that the Will-maker’s instructions are not being overborne by anyone else sitting in the room. This is particularly important if there are suspicious circumstances arising from the family dynamic or personal relationships of the Will-maker.
Some older people can be intimidated by another person’s presence in the room when they are giving instructions in relation to important legal documents. Interviewing the Will-maker alone ensures they feel safe and secure in providing their instructions. It helps us know that those instructions are being provided as a result of their own free will and they are not being coerced by anyone else.
Secondly, we interview our clients to ensure they have the required testamentary capacity to create their Will. We need to determine whether the client understands the nature and effect of the document they are about to sign and whether they appreciate their assets and who may have a claim on their estate.
If the Will-maker does not understand the effect of a Will and the extent of their own assets, it can be a strong indicator that the person does not have the requisite capacity. In those circumstances, we would enlist a doctor to independently assess the person and validate their capacity.
Read more: Challenging a Will based on mental capacity
How can Attwood Marshall Lawyers help?
It is important to seek immediate advice if you have concerns about the validity of a person’s Will. After that person passes away, there is usually a brief window of opportunity to take steps to ensure that the Will was properly made. Challenging the validity of a Will can be daunting, so it is important to seek advice from a lawyer who is knowledgeable and has experience in this complicated area of law.
At Attwood Marshall Lawyers we have one of the largest Wills & Estates departments in Australia, which contains experienced lawyers, graduates and paralegals who practice exclusively in this area. We spend time to educate our lawyers about effectively communicating and connecting with our clients. This ensures we can offer clients the best advice and assistance when coming to terms with the provisions of their Will and estate litigation matters.
If you believe a Will is invalid due to the Will-maker being unduly influenced or unconscionable conduct, and 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 Undue influence and unconscionable conduct in Will-making is elder abuse and is a serious issue appeared first on Attwood Marshall.

Attwood Marshall Lawyers Estate Litigation Senior Associate, Lucy McPherson, explains how an Executor appointed in a Will can apply for Executor’s commission and what’s involved in the application process.
 

Attwood Marshall Lawyers · Lucy McPherson – Executor’s Commissions
What are the obligations placed upon an Executor during the administration of an estate?
The appointment of an Executor is a very important decision for a Will-maker. The duties of the Executor can be quite onerous. The administration of an Estate can take a long time to complete in certain scenarios and the tasks required to be performed can be time-consuming for the Executor appointed to the role.
Those duties can include:

arranging the collection and burial or cremation of the deceased’s body with funeral directors including providing relevant information required to complete the Death Certificate;
arranging the funeral and wake (if applicable);
securing the assets of the deceased and attending to any matters required that were in place at the time of death (including looking after any pets or other urgent matters);
notification of the death to any relevant family members, government departments, banks, service providers and other relevant entities;
locating the original Will and engaging lawyers to act in the estate;
obtaining a grant of probate or letters of administration from the Supreme Court;
calling in the assets of the estate, which can involve extensive investigation in relation to various affairs, including taxation, structuring and acting as trustee of trusts;
tending to the payment of the deceased’s debts, including funeral and administration expenses;
defending any litigation or claims made on the estate;
any other matter that requires a representative’s input on behalf of the estate.

Can an Executor be remunerated for their work administering an estate?
The short answer is yes. The Court can award Executor’s commission. This is where a Court remunerates an Executor for their ‘pains and troubles’ during the administration of the estate, provided they have done the right thing in performing their duties and have not acted in a way that would disentitle them from a claim for commission.
Executors are not automatically entitled to commission. Executor’s commission needs to be ordered by a Court. Alternatively, if all residual beneficiaries in the estate are of majority, that is that they are adults, then they can all agree on an amount of commission to be paid to the Executor to avoid a Court application. Usually, this agreement is in writing and signed by all parties.
If the Executor is a beneficiary under the Will, can they still receive commission?
When a Will-maker is considering who to appoint in the role as Executor, they can also consider if they want to compensate the Executor as a beneficiary for their time given in performing these duties.
If a Will-maker wishes their Executor to be remunerated for their services, it can be a good idea to include them as a beneficiary in the Will and that legacy to be in lieu of any Executor’s commission. This approach can help avoid any doubt, Court application or disagreement at the time of the finalisation of the administration of the estate on the issue of Executor’s commission.
If the Executor is a beneficiary under the Will, this does not mean they cannot also make a claim for commission. The Court will look at how much has been left to the Executor as a beneficiary and will adjust any commission accordingly if the award is granted.
Does Executor’s commission differ between New South Wales and Queensland?
There are some minor differences between States, however, the general theme of the legislation is quite similar.
Queensland legislation is broader in its application for an award of Executor’s commission. In Queensland, the Court can award what it considers “fit” in the circumstances, so it is a discretionary exercise for a Judge.
In New South Wales, the legislation is quite similar however, there are additional requirements on an Executor who seeks an award of commission.
One of the additional requirements is that an Executor must file and pass their accounts for the administration of the estate. This is a requirement set by the Court to make the Executor accountable for their conduct before an award of Executor’s commission is made.
This additional requirement is in existence in New South Wales but not in Queensland.
How does an Executor make a claim for commission?
We generally encourage the Executor to first approach the residual beneficiaries in relation to the proposed claim for commission prior to making an application to a Court.
The reason we do this is to try to avoid the unnecessary expense, if possible, of going through the Court process.
If the consent from the residual beneficiaries is not forthcoming, or if there are beneficiaries in the estate who are minors, then an application would need to be brought before the Court.
An Affidavit needs to be provided to the Court by the Executor, setting out their ‘pains and troubles’. This means outlining the work or attendances they have done during the course of the administration of the estate, which they consider warrants an award of commission.
In an application to the Court for Executor’s commission, generally where the Executor is successful in receiving an award of commission, the costs are payable out of the estate.
Costs are at the absolute discretion of a Judge, who will consider all the circumstances in the application.
An example where Executor’s commission is denied by the Court
Recently, Attwood Marshall Lawyers acted in defending an application for Executor’s commission brought in the Supreme Court of Queensland. We were successful in defending the action and the Court refused to award Executor’s commission.
In that matter, we acted for a residuary beneficiary in that estate where the Executor had not performed his role properly or appropriately.
The Executor:

Had not attended to his duties in a timely fashion
Had preferred his own interests over those interests of the estate and the beneficiaries
There was a conflict in his duty to the estate and his duty to himself in the actions he was undertaking in the course of the administration of the estate

We successfully defended the application for commission. The Court dismissed the application on the basis of the inappropriate conduct by the Executor. Not only was the commission not awarded, the Executor was also made responsible for the costs of the application. (Re Estate of Badstuebner [2020] QSC 144)
Stepping into the role of Executor
An Executor should be advised of their potential entitlements to commission when they undertake the role as Executor in administering an estate.
When an Executor is appointed under a Will, it does not mean they have to accept the role. This is something every potential Executor needs to be mindful of. There is no obligation to take the role and it is important to fully understand how onerous the role can be. They can renounce their role, providing this is done before they have ‘intermeddled’ in the estate.
When we take instructions for clients to make a Will, we recommend that they ask the person they are appointing as Executor if they are willing to take on that role. It is not a role that should be taken lightly, especially if the estate is complex in nature.
We believe you should obtain legal advice as soon as possible after you discover you are an Executor, or after the death of the deceased Will-maker. The reasonable legal costs and any out of pocket expenses incurred by you as an Executor are usually payable from the estate funds or assets. It is very important you obtain legal advice from lawyers who are experienced in this area of law. In many cases the Executor agrees to leave the matter with whoever the lawyers are holding the Will. This may not be a wise choice! You should do your homework and find out whether the lawyers are experienced in this type of work. It may save you a lot of time, stress and money!
How is Executor’s commission calculated?
Executor’s commission is usually awarded on the percentage of the income and capital in the administration of the estate. It’s not a calculation of an hourly rate of the time that has been spent administering the estate. It is more so an exercise of looking at the assets and realisation of the capital and income during the course of the administration.
Those percentage figures can fall anywhere between 0.5% and 5% of the total estate income and capital. Sometimes it is a difficult exercise to work out what is a fair amount of commission to award. There are various factors taken into account, including whether lawyers have been engaged to administer the estate, the size and complexity of the estate assets, the emotional stress of dealing with family members, whether claims are brought against the Estate involving litigation, etc.
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers is a leading estate administration and estate litigation firm. We are very experienced in acting for Executors in estate matters and can provide you with the best advice on dealing with these matters. We can take the stress and burden of acting in the estate off your hands so that you can get on with your life. If you have any enquiries concerning estate administration in your capacity as an Executor, or need estate litigation advice, call our dedicated team today. Please contact Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email [email protected] or free call 1800 621 071.
The post Executor’s Commission – Being an Executor of an estate can be a stressful and time consuming role, but you can be compensated for your ‘pains and troubles’ appeared first on Attwood Marshall.

Many things constitute elder abuse including physical, financial and emotional abuse. With COVID-19 isolating the elderly, elder abuse cases are on the rise. The current pandemic has caused significant financial hardship for many Australians with some looking to relieve their financial stress by taking advantage of those most vulnerable.

Attwood Marshall Lawyers · Jeff Garret – Elder Abuse
Social Isolation
Longstanding research confirms that social isolation is one of the main risk factors for elder abuse. With social distancing measures in place to try to control the spread of COVID-19, this has created a new degree of isolation which can limit opportunities to detect abuse.
The Australian Institute of Family Studies conducted a research survey focussing on life during COVID-19. The survey ran from May 1 to June 9, 2020 and had 7,306 participants from around Australia. What the survey showed was that older people struggled more with staying in touch with others, with just 23% of people over the age of 70 reporting daily contact with their family – almost half that of people under the age of 40 (40%).
Many respondents shared that they were struggling with video calls and new online technologies, with older Australians dependent on face-to-face visits for contact and support.
Financial crisis a major risk factor
In April alone, 129,000 Queenslanders lost their jobs as the COVID-19 pandemic took hold, and nationally almost 600,000 jobs were lost.
Financial pressures are a major risk for elder abuse leading to more people exploiting those closest to them. In 2018-2019, the Elder Abuse Prevention Unit (QLD) reported that most common perpetrators were sons and daughters (including in-laws), representing 72.3% of cases reported.
An increasing number of older Australians have access to substantial wealth in the form of superannuation, bank accounts, investments and property, and are being targeting or pressured to relinquish their assets. Or, they are simply having these stolen from underneath them.
The six key risk factors that are considered financial elder abuse, include:

A family member who has a strong sense of entitlement to an older person’s property or possessions. This can often be due to financial pressures being experienced in their own life.
An older person having diminished capacity
An older person being dependent on a family member or carer
A family member having a drug or alcohol problem
An older person feeling frightened by a family member or carer
An older person lacking awareness of his or her own rights and entitlements

The warning signs of financial abuse
Financial exploitation warning signs can include:

Significant withdrawals from an older person’s bank accounts
Sudden changes in the elder’s financial condition
Items or cash missing from the older person’s household
Suspicious changes being made to legal documents such as Wills, Power of Attorney, and Titles
Financial activity the senior couldn’t have undertaken, such as ATM withdrawals
Unnecessary services, goods or subscriptions being purchased using the older person’s bank account

A nationwide investigation into elder abuse in Australia
Prior to the COVID-19 pandemic, The Australian Institute of Family Studies announced in 2019 they will be conducting the first large-scale study into the prevalence of elder abuse, with the aim of assessing the nature of abuse and how widespread it is in Australia.
The study is part of the National Plan to Respond to the Abuse of Older Australians 2019-2023, which is a government initiative to combat elder abuse through research, education, prevention and the strengthening of support services and safeguards.
This national plan provides a framework for coordinated action across federal, state and territory governments. In the 2018-2019 Federal Budget, it was announced that $18 million would be provided over four years for national trials of three types of services designed to support the elderly who fall victim to abuse.
On 16 September 2018, the Australian Government announced a Royal Commission into the aged care sector. The Royal Commission is looking at the quality and safety of residential and in-home aged care and will provide a final report by 26 February 2021. The Royal Commission has already received evidence of shocking physical and mental abuse by care workers and some family members and has also revealed disgraceful failures by aged care facility staff and management to properly care for residents prior to the COVID-19 outbreak. The evidence given before the Commission shows systemic failures at both state and federal levels of government and the aged care sector generally.
The more recent outbreak of COVID-19 cases in Victoria predominantly consists of elderly aged care residents. Victorian aged care facilities have seen an appalling increase in the mortality rates for residents and the horrendous impact this has had on the elderly and their families. Grief-stricken family members are unable to be with their dying relatives to comfort them due to lock down restrictions, and subsequently not being able to attend a normal funeral service.
Significantly, there is no action for “wrongful death” as there is in other western countries. This means that any actions for damages by the residents themselves, or on behalf of their estates, are very limited and in most cases the only actions available to families impacted by their family member’s death would be for diagnosable psychiatric conditions arising from the treatment and/or death of their elderly parent or grandparent. These actions are problematic in the sense that they can be expensive and cause a further layer of distress on family members already suffering significant psychological sequela arising from the circumstances of their relative’s death.
How to protect yourself, or a loved one
These types of offences have always been hidden and under-reported, but with COVID-19 restrictions further isolating the elderly, urgent action is needed to protect their rights. It is important for the community to look out for their older neighbours and loved ones and to look for the tell-tale signs of abuse.
Physical abuse is a police matter and should be reported to the police immediately.
Helplines have reported that calls have gone up dramatically with an estimated 40% increase in the first half of this year, compared to last year.
The elder abuse helpline is available to access at any time to discuss your situation by phoning 1800 ELDERHelp (1800 353 374).
If you are not happy with the care you are receiving, whether that be in your own home or in a care facility, or are experiencing financial abuse, be sure to speak to someone and ask for help. Tell at least one person, be that your doctor, your lawyer, a friend, or a family member in which you trust.
Ensuring your legal documents are in order
Elder people should ensure their financial and legal affairs are in order. An experienced solicitor can help prepare or update all the documents you need.
The Electronic Transactions Amendment (COVID-19) Witnessing of Documents Regulation 2020 (The Regulations) and the Justice Legislation (COVID-19 Emergency Response – Documents and Oaths) Regulations 2020, was introduced this year to allow people to have their Will, Power of Attorney and Appointment of Enduring Guardian documents signed and witnessed by video in the event they are unable to attend the office of their solicitor. This means these are still legally valid documents and can be signed via Zoom, FaceTime, or a similar application in both Queensland and New South Wales.
A Power of Attorney can be one of the most important legal documents you will ever sign. It appoints people to manage your medical and financial affairs in the event you lose capacity. The sad thing is many elderly clients trust their adult children to manage their affairs, and one or a combination of those children can use that Power of Attorney to financially abuse their parent or grandparent.
If you are unhappy with who you have appointed as your Power of Attorney, it is imperative you contact your solicitor to revoke the Power of Attorney as soon as possible.
How can Attwood Marshall Lawyers help?
We believe that lawyers must play a leading role in protecting the interests of the elderly in our community. Attwood Marshall Lawyers has a large client base of elderly clients who reside in the Northern New South Wales and Gold Coast/Brisbane corridor. We are experienced in this area of law and have acted for thousands of clients over many years in these types of disputes. It is certainly an area that is unfortunately growing in the number clients who are affected by this type of abuse. Sometimes it is very difficult for clients to admit that a family member is abusing them either physically and/or financially. Most of our clients feel much better after contacting us and confiding in us that a family member is doing the wrong thing. We can take steps to ensure that you are protected and that your physical and financial safety are looked after.
In many cases, we are required to urgently assist clients in revoking existing enduring powers of attorney and enduring guardian documents. We are often appointed as the client’s attorney in order to assist them in taking control of their own affairs, or alternatively seeking other family members or close friends who might be able to assist in this regard. By contacting our office, we can step in and help. In many cases an application to the Queensland Civil and Administrative Tribunal (QCAT) or NSW Civil and Administrative Tribunal (NCAT) may be required in order to revoke existing powers of attorney and have independent financial managers, or attorneys, appointed.
We caution clients that in many cases the end result of these types of applications are that your financial management could be handed over to the QLD Public Trust Office or NSW Trustee and Guardian. In some cases, this can result in a worse situation than what you previously had, given the well-documented issues that elderly people and their families suffer as a result of dealing with government instrumentality.
We are often called to attend nursing homes, hospitals and the homes of clients wishing to provide instructions and sign their documents. Luckily, we have one of the largest Wills and Estates departments in Australia and always have available lawyers to urgently attend to these matters. In many cases we can defer our fees or come to a reasonable repayment arrangement to fit in with our client’s budget. If there are recovery proceedings available, we often accept these cases on a ‘no win, no fee’ basis. We offer free initial advice to assess your situation, so please reach out at any time.
We have implemented an approved COVID Safe Plan to ensure our staff and clients wellbeing are a top priority. We continue to offer phone, Skype or FaceTime appointments as an initial form of communication. Subsequent meetings requiring document signing can be conducted following all health protocols in our spacious meeting rooms which are meticulously cleaned and sanitised after every meeting.
Our convenient office locations either side of the QLD/NSW border in Coolangatta and Kingscliff allows our clients to visit whichever office they prefer without having to cross the border. We also have offices at Robina Town Centre and Brisbane City.
Although the current COVID-19 amendments to the laws about signing electronic documents allows this to be done by video, at Attwood Marshall Lawyers we prefer to witness documents face-to-face where possible, as it is important to be in the presence of the person to check their capacity and make sure the document they are signing correctly reflects our client’s instructions. If your preferred method to sign legal documents is to do so electronically by video, we are certainly able to do this.
If you would like to speak to our team today, call any time on 1800 621 071 or email [email protected]
Read more: Appointing Guardians and Power of Attorneys
Read more: Buzz Aldrin sues his children for elder abuse
The post COVID-19 causes increase in elder abuse cases as social distancing creates a new degree of isolation appeared first on Attwood Marshall.

Many people assume they have appropriate cover in their insurance policies. However, it is important to be aware of the varying processes and policies between superannuation funds to ensure your rights to benefits are not compromised. Attwood Marshall Lawyers Senior Paralegal, Amy Lewis, explains how terminal illness claims can be made through a superannuation policy.
 
Insurance benefits that may be attached to superannuation policies
Death Benefits (Life Insurance)
While most people are aware they hold life insurance cover (also known as death benefits) attached to their superannuation fund, many do not realise this cover can be paid out early should they be suffering from a terminal illness.
Generally, death cover is only paid out upon the death of an individual. The funds are usually paid to the deceased’s dependents or their estate depending upon the deceased’s prior instructions. You also have the option of signing a ‘binding death benefit nomination’ which can bypass your estate and leave the benefit to a specified beneficiary.
If someone is diagnosed with a terminal illness, this insurance benefit can be paid out immediately along with any superannuation account balance. Policies differ amongst the superannuation funds and insurers, but usually you can get access to these funds provided you have medical evidence confirming you suffer from a terminal illness and prognosis is that you will die within the next 12-24 months.
Getting access to these funds provided by terminal illness – or death benefits (as well as the account balance for your contributions), can allow a person to provide for their family and live the rest of their life the way they wish. The funds give the person suffering from a terminal illness options for the remainder of their life, including the ability to fund expensive treatment options.
A person can use terminal illness insurance payouts to go towards:

paying for private medical treatment
trying new therapies
paying for accommodation close to specialist and medical facilities
the cost of palliative care
replacing the income of a family member who takes time off work to assist you
taking a holiday or enjoying time with family
securing a home or property for children or dependant spouses

If someone has multiple superannuation accounts, it is possible you have multiple terminal illness claims should you have active insurance cover for each account. You can do a quick check on the ATO website to see what superannuation policies you hold by clicking here. Many people do not realise how many superannuation accounts they have and quite often there may be death and TPD cover still current.
What is a Terminal Illness Claim?
A terminal illness claim is a request from you to your superannuation provider to be paid your account balance and death insurance benefits. The time frames for your prognosis and the terminal conditions can differ from policy to policy, but this is a standard pre-requisite for cover.
To make a claim:

Check your policies and gather your paperwork as soon as you are able after your diagnosis and contact our office for a free initial appointment.
We will need to confirm you hold the relevant insurance through your superannuation fund and that it is current.
You will be asked to sign a simple authority allowing us to contact the superannuation fund and obtain your account details.
Two of your treating medical practitioners (usually your GP and specialist) must certify you are suffering from a terminal illness and will likely pass away within a determined period of time. This period varies between 12 – 24 months depending upon the fund.
Sometimes there may be issues with the type of illness and whether your policy covers the condition. Quite often there are issues with whether the policy is active or complex arguments about when the condition was acquired, especially if the cover ceases at a certain age.
We take on your matter on a completely ‘no win, no fee’ basis and attend to payment of any costs of medical reports needed so you are not out of pocket. If we don’t succeed in getting your payment, we don’t charge you. It is as simple as that.
We are upfront with our fees and give you an agreed fixed fee amount, so you know where you stand. No unpleasant surprises at the end of the case. You have enough to worry about!

Attwood Marshall Lawyers aims to take the stress out of making a superannuation claim and once we obtain the details of your superannuation fund/s and treating doctors, we take care of the rest for you.
Superannuation funds slow in processing claims or denying lump sum payouts
There have been reports of people waiting excessive times when trying to make a claim for early release of super or life insurance benefits.
The Life Insurance Code of Practice, which is mandatory for all members of the Financial Services Council, allows insurers up to six months to pay claims. If you are terminally ill, six months is a completely unacceptable amount of time to wait.
Nick Kirwan, Senior Policy Officer at the Financial Services Council says 92% of claims are paid within the code’s six-month timeframe. This includes claims for total and permanent disability, trauma and death as well as terminal illness. The council does not have data showing how long its life insurance members take to pay out terminal illness claims.
Some superannuation providers have also gained attention for introducing confusing policies where they deny lump sum payouts to terminally ill members.
A report in December 2019 described a stonemason worker’s distress when he was denied a lump sum payout of his total permanent disability (TPD) insurance by his superannuation fund, Sunsuper.
Mr Garry Moratti was diagnosed with silicosis, a lethal lung disease, as a result of his stone-masonry work, and was given a life expectancy of four to five years. He assumed he would be eligible to claim for benefits for his terminal illness under his TPD insurance. In most instances TPD claims are a lump sum payout awarded to a member who has been permanently disabled and is unable to ever work again.
Earlier in 2019, Sunsuper changed their policy around TPD insurance providing eligible members drip-fed payments in instalments over six years. Sunsuper requires claimants accessing these benefits to be continuously assessed in order to receive the benefits. In Mr Moratti’s case, this was an unsuitable scenario as he was terminally ill and was not expected to live the six years it would take to receive his full benefits.
Mr Moratti was devastated by the situation as the lump sum payment would have helped him enjoy what time he had left and support his family, without the added stress of having to deal with the insurance provider regularly and being given restricted access to vital funds.
The difference between TPD benefits and Terminal Illness benefits are not widely understood and it is important to investigate what insurance policies are available to you under your superannuation account and how benefits may be paid out.
Get the right advice before you claim!
We do our best to get your claim lodged with the insurer as soon as we can and stay on their case until we get a resolution for you. Most insurers are pretty good dealing with these claims, but we find that having experienced lawyers in this area acting for you certainly helps to keep them honest. Many clients have tried to lodge the claims themselves or have allowed their financial planner or insurance agent to assist. It is very important that you engage experienced lawyers in this area, as you only have a limited time and ‘one crack’ at the policy payment. Sometimes, mistakes are made in the application which can delay or even compromise your payment. Please make sure you get the right advice.
Read more: Different types of life insurance cover
Read more: What is a Total and Permanent Disablement benefit?
We strive to resolve your matter as quickly as possible because we understand that your time is critically important. It is our renowned intent to help people through rough times. If you have been diagnosed with a terminal illness and would like assistance to help access your entitlements through superannuation, contact Compensation Law Department Manager, Kelli Costin, on 07 5506 8220 or email [email protected] for your free initial appointment with our friendly staff.
The post Superannuation insurance benefits can be paid early if you are terminally ill to help you live the rest of your life the way you wish and support your family appeared first on Attwood Marshall.

There has been a trend of agents bringing forward auction dates across New South Wales over fears of a second wave or coronavirus. Licenced Conveyancer, Rachel Godden, takes a closer look at the NSW property market and what agents are experiencing.
 
A trend has been prevalent following the spread of COVID-19 across Victoria and new restrictions being put in place in New South Wales. With outbreak clusters being reported, auctions that were planned ahead of time are being bought forward one to two weeks to finalise sales prior to any further outbreaks taking place.
“We’ve been hearing agents in general are bringing forward dates claiming ‘lots of interest’ and wanting to finalise deals for their clients sooner than later,” said Buyer’s Agent and Good Deeds Property Director, Veronica Morgan.
“In many cases it’s more a reaction to the possible threat of a second coronavirus wave.”
The co-host of The Lifestyle Channel show “Location Location Location” said the hastily rescheduled auctions meant buyers needed to be on the ball with due diligence.
“Buyers really need to be super organised, have their finances ready, do building and pest inspections early, do strata searches and have contracts reviewed early,” she said.
“We’re now in a period where agents may change the direction of a sale at any given time.”
“As we’ve already had a lockdown period where agents had to do things online, they may ramp up things even more. Some will look to sell prior to auction and will move quickly if they get a good offer, so buyers need to be prepared.”
In the first week of August, Core Logic recorded that there were 692 Sydney homes set to go under the hammer, an increase of over 20% on the previous week’s volumes (566) and almost double the number of auctions held over the same week last year (367).
On realestate.com.au, the latest auction results and property sales for the first week in August, 2020, showed 74% of houses sold at auction and 1,365 private sales also occurred during this week.
Based on this data, New South Wales recorded the highest sales results compared to any other state or territory.
Winter is typically the quietest time for auction volumes, however with eager sellers to move property during the spread of COVID-19, this has contributed to a recent surge in sales. Many properties which were pulled from the market during the hard lockdown in April, have put their properties back on the market.
Tim Lawless, Core Logic’s Head of Research, said the market has remained resilient with prices only falling 2.1 per cent since the peak in April.
“Record low interest rates, government support and loan repayment holidays for distressed borrowers have helped to insulate the housing market from a more significant downturn,” he said.
It is expected that interest rates will remain at a record low for some time to help keep the economy stimulated.
What else is trending in New South Wales Property?
Increase in demand for First Home Buyers:
As of 1 August 2020, the NSW government has made changes to their thresholds for eligible first home buyers. For new homes a full exemption is available if the home is valued at less than $800,000 and a concessional transfer duty rate will apply for houses between $800,000 to $1 million. Existing homes provide a full exemption value at less than $650,000 and a concessional transfer duty rate between $650,000 to $800,000 and vacant land less than $400,000 is exempt and a concessional rate is available from $400,000 – $500,000
This exemption is providing first home buyers some relief when hunting for houses in a lower price point.
Price Clustering:
It is expected that buyers won’t be the only ones who respond to the stamp duty concession incentive, but sellers may be inclined to position their sales price just under the cut-off point to appeal to buyers in this bracket. Core Logic sales volume data across NSW shows that there was a bunching of sales between the $640,000 and $650,000 price point between July 2017 and June 2020. We may start to see price clustering move up to the $800,000 mark with the introduction of the new stamp duty exemptions.
Low interest rates and strong competition
The Board of the Reserve Bank of Australia has been very clear that interest rates will remain at their current settings so long as unemployment is elevated, and inflation remains below target.
Currently home loan rates are at their lowest they have ever been. Lenders are doing everything they can to attract borrowers. In addition to low rates, there appears to be a trend with several lenders offering cashback deals (one-off sums usually between $1,000 – $4,000 paid out to customers). Cashback deals can be put towards a borrower’s mortgage or used for any other purpose.
Other lenders are offering deductions on Lenders Mortgage Insurance to entice borrowers and stand out from the competition.
Terms, conditions and exclusions apply so it is important to understand the product you are committing to in addition to the promotional offer.
How can Attwood Marshall Lawyers help?
For those in a position to buy, there are opportunities to purchase property at reasonable prices and take advantage of some of the latest promotions being offered by lenders.
Should buyers require any assistance with loan documents after their loan has been approved, Attwood Marshall Lawyers can peruse all documents, including guarantor documents, and provide expert legal advice to ensure a smooth transaction for all parties.
Read more: House hunters receiving JobKeeper – pros, cons and considerations
Read more: COVID-19 changes Australian’s home ownership goals
Attwood Marshall Lawyers are a leading Property Law firm. For legal help with a conveyance, contact Property and Commercial Department Manager, Jessica Kimpton on 07 5506 8214 or email [email protected] today.
The post NSW house hunters encouraged to get ready – auctions brought forward over fear of second wave of COVID-19 appeared first on Attwood Marshall.

A Binding Death Benefit Nomination is a relatively new tool used in the context of succession planning. Wills and Estates Partner, Angela Harry, explains how superannuation benefits are dealt with upon death and how people can ensure their superannuation ends up with their intended beneficiaries.
 

Attwood Marshall Lawyers · Angela Harry – SMSF Binding Death Benefit Nominations

How are self-managed superannuation funds dealt with upon death?
A significant proportion of the wealth of people today is held in the superannuation environment. It’s not uncommon for superannuation to be an individual’s most valuable asset.
Not only is the value of wealth in superannuation continuing to grow, but so is the number of self-managed superannuation funds.
The purpose of self-managed superannuation funds is to build up wealth for retirement. The attitude of many is that they will utilise these benefits for retirement and simply spend all that is in the account when the time comes. The reality is, when people die there is usually substantial value remaining in the fund.
According to ATO statistics over 1.1 million Australians are members of self-managed superannuation funds with those funds holding over $747 billion in assets.
There is a significant lack of planning and understanding by many members in relation to what happens to their superannuation on death. What many people do not realise is that superannuation benefits are not covered by their Will. The payment of these benefits are left to the superannuation trustee’s discretion if there is no Binding Death Benefit Nomination in place (subject to the terms of the fund’s trust deed).
If superannuation nominations are not done properly, the benefits may not end up in the hands of those intended and the costs of having the argument over where those benefits are to be paid can be significant.
What Succession Law issues can arise around self-managed superannuation funds?
Superannuation assets are treated differently upon death compared to the distribution of other assets. Technically, you do not own your superannuation balance until it is paid out to you. In the meantime, it is held by the fund on trust for the member.
When someone dies, what happens to the superannuation funds will be determined by:

the terms of the trust deed governing the superannuation fund;
superannuation law; and
the terms of any binding or non-binding nominations that the member has put in place.

It is important for people to consider giving directions to the superannuation fund’s trustee about how they want their benefits to be paid on death. Nominations need to be done properly for self-managed superannuation funds because if they are not, there’s a risk that any nominations put in place can be set aside.
What happens to member benefits on death?
The member’s superannuation benefits include:

The contributions; and
Any insurance held within the fund.

A death benefit nomination is a notice that the member gives to the fund’s trustee regarding the payment of the member’s benefits on death. There are a few different types of death benefit arrangements that can be made. These include:

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

Different circumstances may require different types of nominations
Whether a Binding Death Benefit Nomination is appropriate will depend on the circumstances of the member, as well as which type of arrangement may suit their intentions.
This is something that needs to be looked at in the context of a person’s estate planning goals. If you have a member who wants flexibility on how their benefits will be paid and in what form, for example lump sum payment or pension, then it may not be appropriate to do a nomination.
For those who want control and want to ensure the benefits end up with a particular person, or they have concerns that there may be people who will challenge the decision of the trustee, then it may be appropriate for a binding death benefit nomination to be put in place.
Examples of situations where it may be appropriate to make a Binding Death Benefit Nomination:
Example 1: A member has three adult children. One child has a problem with drug addiction, another is going through a marital breakdown, and the third is facing the prospect of bankruptcy. If the superannuation funds were to be paid to the member’s children, there is a risk it may be lost to certain predators or creditors. In this circumstance a member could complete a Binding Death Benefit Nomination to pay their superannuation benefits to their estate upon their death and set up a Testamentary Trust in their Will. This would quarantine and protect the benefits intended to go to those children.
Example 2: The member has remarried. They want to ensure that their new spouse receives their superannuation benefits, rather than children from a previous relationship. By preparing a Binding Death Benefit Nomination this would avoid the benefits going into the estate which could potentially be open to a challenge by the children.
Self-managed superannuation funds with multiple members
A self-managed superannuation fund can have between one and four members. Each of those members must be represented at trustee level. In practice, most funds either have two members, usually a husband and wife or de facto couple, or are a single member fund.
Technically you can have a self-managed superannuation fund with other members, which may include mum, dad and two children, or siblings, with the goal being that the fund continues to operate at a generational level.
There can be problems with the practicality of having a fund with several members. Each member may have different investment goals and operating an inter-generational fund with different goals can be difficult. Payment of superannuation benefits to elderly members can also be problematic if the portfolio is dominated by a single high-value asset, such as real property.
If there is any conflict between the members it can trigger a division of the fund assets or a forced sale. The reality of this type of arrangement is that if there is conflict within the family then the fund may need to be wound up which can have cost implications.
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers have one of the largest Wills and Estates team of lawyers in Australia who practice exclusively in this specialised area of law.
Binding Death Benefit Nominations can be an important tool in succession planning, however if these documents are not properly prepared, they can cause serious problems. If practitioners don’t have experience and a comprehensive understanding in this evolving area of law, it can be very messy. The biggest danger is over-simplification of these documents, and not giving them the attention they deserve. Our team can help you understand what documents to put in place and determine if your circumstances require a Binding Death Benefit Nomination in order to protect your assets.
Read more: Why Estate Planning is essential to ensure your retirement savings are passed on to your loved ones
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]
The post A Binding Death Benefit Nomination can determine how your self-managed superannuation funds are dealt with upon death appeared first on Attwood Marshall.

Industrial Relations Minister Grace Grace presented a Bill to Parliament amending the Workers’ Compensation and Rehabilitation Act 2003 to make it easier for first responders who develop post-traumatic stress disorder (PTSD) access the support and medical care they need.

 
What is post-traumatic stress disorder (PTSD)?
Post-traumatic stress disorder is a debilitating and often chronic mental health condition associated with the exposure to a single or multiple traumatic events. First responders have a high risk of developing PTSD as they work in potentially traumatic environments every day.
In the initial weeks after someone is exposed to trauma, most people meet criteria for PTSD. Over the first three months 50% recover and this recovery continues over time, with about 10–15% developing PTSD in the longer term.
Knowledge about the diagnosis and treatment of PTSD in emergency service workers is now strongly evidence-based and well delineated. Australian guidelines for the treatment of PTSD were published in 2015, with an aim to utilise a combination of expert opinion and the best available research evidence to produce succinct, focused guidance on the diagnosis and treatment of emergency workers with PTSD.
First responders – a move to better support those who help our community
In Australia, there are over 80,000 full time emergency workers.
First responders across police and emergency services deal with vulnerable people in urgent need who may be injured, in a state of heightened anxiety, shock, or distress, in danger or deceased.
Safe Work Australia reports that the most common cause of serious workers’ compensation claims made by first responders since 2003 were:

Mental stress 13%
Lifting/carrying people 7%
Assault 5%
Falls on level ground 5%

The serious claims rate is four times higher for first responders than for all occupations, at 37.9 claims per 1000 employees.
In order to help support first responders, Beyond Blue completed a national survey of the mental health and wellbeing of personnel in the police and emergency services. The survey was called “Answering the call”. It was conducted between October 2017 and March 2018, with the results released in November 2018.
The survey helped provide a detailed picture of the issues affecting the mental health and wellbeing of employees, former employees and volunteers who work in emergency services.
The national survey included 21,014 contributors who shared their insights and provided evidence.
The survey showed that:

more than half of all emergency services employees indicated that they had experienced a traumatic event that had deeply affected them, during the course of their work
employees who had worked more than 10 years were almost twice as likely to experience psychological distress and were six times more likely to experience symptoms of PTSD
three in four employees found the current workers’ compensation process to be detrimental to their recovery
one in four surveyed former employees experience probable PTSD (compared to one in 10 current employees), and one in five experience very high psychological distress.

The results of the study highlighted the failures of the existing Workers’ Compensation Scheme and the impact of the shortcomings on those who tried to make a claim.
61% of emergency service employees reported a negative impact on their recovery. 69% reported that they received limited to no support during the claims process.
The survey made it clear that changes were critical to help first responders through one of the most vulnerable times in their lives.
Beyond Blue’s survey, along with a Commonwealth Senate inquiry and an independent review of Queensland’s Workers’ Compensation process were the driving forces behind the legislative changes.
“Each and every day, our first responders are exposed to traumatic incidents that most of us could never imagine,” Ms Grace said.
“Attending these types of incidents, whether it be one catastrophic event or a gradual build up over many years, can take a toll on our first responders’ mental health.”
“We acknowledge the vital work performed by our first responders and the impact exposure to trauma can have on their wellbeing and their families.”
The new laws
Under the new laws, first responders, other workers and volunteers who are struggling to cope with PTSD will not have to prove their injury is work-related, it will automatically be presumed.
This is a welcome change as previously first responders would have significant delays and be put through unnecessary investigations in order to prove their PTSD was work-related.
The new law will apply to police, ambulance, paramedics, firefighters, child safety officers, correctional officers, emergency nurses and medical practitioners. Other workers in first responder agencies whose role involves experiencing repeated and extreme exposure to traumatic events will also be covered.
This latest amendment follows new rules which commenced July 1, 2020. The new rules stated:

Self-insured employers are required to report injuries and any payments made to workers to their insurer
Workers’ compensation coverage will be extended to unpaid interns and employers will be required to provide the details of their rehabilitation and return to work co-coordinators to their insurer.

It has been historically difficult for a worker to make a psychological or psychiatric injury claim. Unfortunately many insurance companies deny liability on genuine claims when a claimant presents with a psychiatric condition. The insurers know full well that by doing this they are exacerbating the psychological injury of the claimant by denying the claim and prolonging the claim process.
The changes to Queensland legislation is a step in the right direction, however we need to see these go further and be extended to all workers, no matter the industry they work, to ensure PTSD and other psychological conditions are acknowledged and people who suffer psychological workplace injuries can receive the compensation and treatment they are entitled to.
Read more: Policewoman wins eight-year insurance battle for TPD claim after suffering PTSD
If you have been impacted by traumatic events performing your duties at work, you may be able to make a claim for compensation and should seek legal advice as soon as possible. Attwood Marshall Lawyers can help you every step of the way. 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 Attwood Marshall Lawyers welcomes new legislation to support first responders battling PTSD under QLD WorkCover appeared first on Attwood Marshall.

Estate planning is more than simply writing your Will. It often involves a suite of documents, including Wills, Enduring Powers of Attorney, Health Directives and superannuation nominations. Proper estate planning takes into consideration your family situation, asset structure and not only how best to pass on your wealth on death, but how to protect and manage your affairs in the event of incapacity. Wills & Estates Partner, Angela Harry, discusses why it is important to enlist a professional to ensure your estate planning is done correctly.
 

Attwood Marshall Lawyers · Angela Harry – Estate Planning SMSF
 
What is estate planning and who should be involved to help with the process?
Estate planning is the process of arranging the management, and disposal of, a person’s estate during their life and upon their death. It ensures the individual’s assets are looked after in the event they lose capacity, or upon their death, and that the person’s estate will end up with their intended beneficiaries.
Estate planning is often looked at in the context of asset protection and tax planning. There is a lot more involved than simply writing a Will, including:

Enduring Powers of Attorneys;
Superannuation nominations
Reviewing trusts and company structures.

A lawyer, accountant and financial planner will usually be involved in the process.
When is a good time to start estate planning with a lawyer?
Everyone over the age of 18 should be looking at their estate planning. A survey conducted by finder.com.au revealed approximately 10 million Australians have not prepared the vital legal documents they should have.
There are mixed attitudes as to whether people feel they need to worry about planning their estate. Many people feel they don’t own enough assets to justify going through the process, others simply do not want to worry about these matters in the first place or feel by doing so they are ‘tempting fate’.
There are a multitude of reasons why it is important to look at completing your estate planning documents. These include:

Having a Will to ensure your assets end up with your intended beneficiaries, rather than passing under a statutory formula
Having an Enduring Power of Attorney to ensure if you lose capacity you decide who manages your affairs and potentially avoiding the risk of a government body stepping in and making those decisions on your behalf
Identifying who you want to benefit from your superannuation and completing nominations, so the right people receive your member benefits and you avoid costly disputes.

Estate planning is often something that is considered only for those in the later years of life, however the reality is that no one can predict what the future holds and it is important for people of all ages to have the appropriate documentation in place.
For instance, having an Enduring Power of Attorney can be particularly important for younger people. People of all ages can have unexpected accidents and injuries and they may not be prepared for someone to act on their behalf. Ensuring you nominate the right person for this role is critical as they will essentially be stepping into your shoes and have complete control of your life. The attorney can make financial and health decisions which are far-reaching, including accessing your bank accounts, buying and selling property and deciding where you live.
Read more: Appointing Guardians and Attorneys – what can happen if you make the wrong choice
Superannuation nominations are also frequently overlooked, particularly by the younger generation, with this being an area growing in disputes.
Many young people make comments that they don’t have enough in their member balance to worry. However, often overlooked is the substantial life insurance policies that may be attached to the member’s account.
We are seeing more and more disputes between parents of a younger person and a person who is claiming to be that person’s defacto partner over who is entitled to claim on the deceased’s superannuation benefits. It is critical for everyone, despite their age, to have these documents in place and have their wishes clearly outlined.
What are some other areas looked at in estate planning?
One of the key considerations when formulating an estate plan is the person’s family situation. It is important to identify if there is a blended family, if there are any protective issues, such as a child involved in a relationship breakdown, if there is a child with an addiction, or if a child has a special need or disability to consider. There are ways you can structure your estate planning documents to ensure you pass your wealth to those that you intend via the most effective structure.
Another key consideration is the assets and liabilities of the person, including who owns what, and how. In the estate planning process, a solicitor will review what you own, whether assets are wholly owned or in joint names, and what non-estate assets exist. Non-estate assets can include superannuation, joint assets and trusts.
Can a simple Will deal with superannuation and trusts?
There really is no such thing as a “simple” Will, and therefore no – a simple Will cannot gift superannuation and trusts. Part of dealing with non-estate assets is looking at who controls those assets and what mechanism can be put in place to pass the control of that asset to another person.
For example, you cannot give trust assets in your Will. What you can do is give the shares in the trustee company that controls the trust and pass on the powers of the appointor (assuming the terms of the trust deed allow this).
What a solicitor will do through this process is review the trust deed, look at the company constitution, directorship and shareholdings to see who owns and controls what.
A solicitor can then determine if this is something that should be put in the Will or if other documents, like Deeds of Succession, should be put in place.
Superannuation is also something which cannot be left to someone in a Will. Superannuation needs to be dealt with by completing a nomination with the super fund identifying who you want to benefit.
All these factors need to be considered and structured correctly.
How should superannuation be dealt with in your estate planning?
The first thing to look at and identify is who can receive superannuation benefits. Most people don’t realise that there are restrictions on who can benefit from your superannuation.
In order to be named as a beneficiary on a superannuation nomination, under the superannuation law the person(s) mentioned in the nomination must either be:

The legal personal representative – in this context is defined to mean the Executor of the Will or administrator of the estate of a deceased person
A spouse – spouse is given a wide definition that includes de factor and same sex relationships, registered or otherwise
A child – child is also given a wide definition and includes an adopted child, a stepchild or an ex-nuptial child of the person, a child of the person’s spouse, and someone who is a child of the person within the meaning of the Family Law Act 1975
Any person with whom the person has an interdependency relationship – this is defined as a close personal relationship of people who live together, where one or each of them provides the other financial support and one or each of them provides the other with domestic support and personal care.

If a nomination is to a person who does not satisfy the legislative definition it will be deemed invalid and it will be up to the trustee of the superannuation fund to determine where to pay the benefits.
Factors to consider when nominating someone to receive superannuation death benefits
Once it is determined who can receive the superannuation benefits, the next step is to determine who “should” receive the benefits.
There are several factors to consider, with tax usually being the biggest factor to consider when determining where the benefit should be paid. Most people don’t realise that there can be quite a big tax bill built into superannuation if it is paid to a non-tax dependent.
What should be done in superannuation planning is to try to look at who the person wants to give the benefit, and if appropriate, sometimes filtering more of the superannuation to a tax dependent and have other non-super assets, such as money in a bank account or property, go to a non-tax dependant.
It is important to identify who is going to be taxed. This can help make the decision of which assets go to the beneficiaries a little easier. As part of this process, it is essential that the lawyer, accountant and financial advisor work together so that the appropriate succession planning and tax advice can be provided.
In addition to tax, there are other factors to consider when nominating someone to receive your superannuation benefits.
These are:

If a person is concerned about a Will being challenged, they may want to avoid their superannuation going into the estate. Therefore, they may nominate beneficiaries directly on their superannuation member account (although this strategy may not work in NSW as a result of the notional estate provisions)
If there are concerns about a beneficiary who is going to inherit, facing bankruptcy, it may be directed to the estate so a trust can be set up

Through proper estate planning, a member can tailor their nomination to suit their individual circumstances.
It is essential that accountants, financial planners and lawyers communicate with one another as part of the estate planning process, to make sure that everyone is on the same page with what the client wants and what they are trying to achieve.
What can go wrong if estate planning is not carried out properly?
Lots of things can go wrong if you do not have your estate planning completed by a professional.
Some of the more common mistakes are:

Home-made Wills: People attempt to give assets, such as superannuation, as gifts in their Will. If that person hasn’t dealt with superannuation nominations correctly, this will not be valid.
Enduring Powers of Attorney: If these documents are not done correctly, it can have disastrous consequences and you may not end up having who you intended in control of your affairs.
Gifts: These may not be drafted correctly, and gifts may not end up where you intended them to.
Disputes: Arguments over the estate can be costly and may cause the estate to not be distributed as the deceased wished.

Read more: Binding Death Benefit Nominations and Self-Managed Super Funds
How can Attwood Marshall Lawyers help?
Accountants, financial planners and other professionals must exercise due diligence when tasked with the service of providing estate planning. They should work together to ensure the client’s wishes are correctly planned for. Attwood Marshall Lawyers is a leading Estate Planning law firm, with one of the largest and most experienced teams in South East Queensland.
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]
The post Estate planning is essential to ensure your retirement savings are passed on to your loved ones appeared first on Attwood Marshall.

Many people are unaware of the expenses involved when you are the Executor in an estate and are required to administer and/or defend an estate against a claim contesting the Will. The costs and usual expenses of an estate extend further than arranging the funeral, and in most cases need to be paid upfront by the Executor. Estate Litigation Associate, April Kennedy, breaks down some of the costs an Executor may be confronted with.

Attwood Marshall Lawyers · The Costs Involved In Administering An Estate – April Kennedy
What costs are involved when administering an Estate?

Bills of the Deceased (Rates, utilities, insurance, internet, phone etc.)

The first out-of-pocket expense, which can also be the most stressful for an Executor, is the deceased’s bills. These can include council and water rates, electricity and phone bills, body corporate or strata fees and insurance. There’s generally no grace period with the institutions who require payment, and they are still required to be paid on time. The deceased’s bank accounts are usually frozen, so the Executor must find a solution to pay all bills.

Funeral Costs

A funeral can cost anywhere between $5,000 to $15,000 which has to be arranged immediately after the person has died. This expense is usually paid by the estate from the bank account of the deceased; however, the Executor still needs to approach the bank and ensure there is enough money available to cover these costs. There may also be the cost of a wake for friends and relatives.

Legal Fees

If there is a Will, engaging lawyers and obtaining a grant of probate comes at a cost. Administering the estate involves dealing with the assets, closing accounts, distributing assets to beneficiaries, obtaining a grant of probate or administration which includes court filing fees ranging from $600 to $2,000. All these tasks can accumulate legal fees, which in most cases come out of the estate, but funds aren’t usually available until after probate has been granted (which can take up to three months after someone has died). The Executor must consider how legal fees will be paid. A solicitor can defer these fees until the funds become available and can be paid out of the estate, but many law firms don’t agree to carrying this cost. In these circumstances, the Executor is required to pay these fees up front and get reimbursed later.

Ongoing Costs and Fees

Other fees that may need to be dealt with include property fees, such as ongoing property maintenance and repairs, or cleaning costs to ensure a property is appropriately prepared for sale or rent, depending on what will happen to this asset.
If the Executor is working, they will likely need to take time off from their usual work to complete their duties, which may mean taking annual leave, personal leave or even unpaid leave. It can be very time-consuming organising the funeral, clearing out or maintaining someone’s property, or cleaning up the deceased’s personal and financial affairs.
Transit costs may also have to be factored in if the Executor lives elsewhere and needs to commute in order to fulfil their duties. This may involve airfares, the need for public transport or car and petrol expenses. COVID-19 restrictions may also complicate matters.
Other costs to consider may be if there is a property that is going to be sold, fees for conveyancing, contract preparation, agent’s commissions and marketing costs.

Tax and the ATO

The Executor is required to finalise the deceased’s tax affairs. This means that they will need to liaise with the ATO and usually engage an accountant to prepare and lodge tax returns for both the deceased and the estate. An Executor can become personally liable for any outstanding tax debts or unidentified tax liabilities if they have distributed all the assets of the estate to the beneficiaries without completing their tax obligations.
What costs are involved if a Will is contested?
If a Will is contested and there are no funds in the estate, it is the Executor’s responsibility to meet this financial commitment. Will contests can be a costly process. If the deceased’s estate allows for it, these funds may be paid from the estate, but there are many cases where there is no available cash, and in some cases the Executor has to pay these expenses out of their own pocket when defending a claim against an estate.
Executors may need to consider what options are available to cover these costs, including:

Sell estate assets
Liquidate shares
Call in investments
Sell property
Obtain a loan themselves

The Executor is usually indemnified for their costs, which means they will be paid from the estate one way or another.
The Duties of an Executor
The level of work performed by an Executor will vary for each case. An Executor may need to sort through the deceased’s paperwork, or they may physically clean out the deceased’s house and maintain their property, or setup trust accounts, and liaise with solicitors and other professional service providers in order to administer an estate.
Are there legal mechanisms in place to assist Executors?
In each state, the Succession Laws prioritise the payment of debts. This may include any of the deceased’s liabilities such as their mortgage or credit card, the funeral and legal costs. These expenses will be paid from the estate before the beneficiaries receive any entitlements.
Executors are entitled to charge a reasonable commission, which means they are essentially charging for the work they perform in administering the assets of the deceased’s estate. Many people are not aware that an Executor can charge commission. This scheme is in place to remunerate the Executor for the work that they have completed; but it must be authorised by the Supreme Court.
An Executor’s Commission will depend on the size of the estate. There are guidelines in case law which sets out percentages, as oppose to a lump sum payment. These are based on different types of assets. For assets that are transferred to beneficiaries, it can be anywhere from 0.25% to 1.25% of those assets. For income, there’s a percentage range based on these types of assets, and a percentage range on capital realisations which may include calling in a bank account or investment. It’s based on a category of assets.
Other factors that weigh on how much commission an Executor can charge depends on the size of the estate, and how diligently they carry out their duties. For a larger estate, the percentage may be a bit lower. An estate that may only consist of a house and a bank account would be treated differently to an estate with a large share portfolio or multiple properties, investments and superannuation. It also depends on if the deceased had companies and trusts or if there are testamentary trusts in their Will.
It is necessary to obtain legal advice as to whether a claim for Executor’s commission is appropriate in the circumstances.
How does an Executor make a claim for commission?
A claim for commission can be a costly affair. Many Executors avoid claiming commission because the application process is not straightforward. To apply for commission, an Executor needs to make an application to the Supreme Court. This means all the beneficiaries need to be put on notice, they must go before the Court and a Judge.
The Executor will need to:

compile a schedule of everything they have done in administering the estate;
provide all estate asset information;
provide information on the income and interest derived on the assets.

Alternatively, an Executive can also come to an agreement with the beneficiaries regarding the amount the Executor will receive for their commission. This option tends to be more favoured, less expensive, and will appeal to all parties as the beneficiaries can agree on an amount they are comfortable with the Executor receiving.
How can someone making a Will reduce the burden for their nominated Executor?
Estate planning is key to ensuring you have enough assets or cash in your estate to be able to cover expenses once you have died. A pre-paid funeral plan, or funeral insurance, may be another option to reduce the impact and costs for the Executor, or family members, who will be organising your funeral and wrapping up your affairs.
Having your Will drafted by someone who has expertise in this area of law can minimise the risk of a claim against your estate later on and ensure you are distributing your estate so that there is money available to pay ongoing expenses.
What’s the difference between a pre-paid funeral and funeral insurance?
A pre-paid funeral involves you meeting with a funeral director and essentially organising your funeral before you die. You choose your preferred casket, whether you wish to be cremated or buried, and any extra details surrounding your funeral. The cost will vary depending on your inclusions, and once paid in full there is no more to pay. You have the choice to pay in one lump sum upfront or pay in instalments. Organising a pre-paid funeral is a relatively simply process which does not require extensive paperwork or health checks.
Funeral insurance is where you will pay monthly or fortnightly premiums (ongoing payments) for a fixed amount of cover. You can choose which level of cover you wish to be paid to your family when you die. You are not paying for your exact funeral costs with funeral insurance. You are simply buying a policy to meet those expected costs come the time it is needed. It is important to understand any exclusions that may apply to funeral insurance and obtain independent advice on any policy you may be considering.
How can Attwood Marshall Lawyers help?
If you have been appointed as an Executor, you should be aware of the role, the costs and what is expected of you. It is recommended that you seek legal advice as soon as possible from lawyers who specialise in this area. Many Executors make the mistake of using whatever law firm holds the Will. Quite often these firms have little or no experience in Estate Litigation or giving proper advice to Executors in the administration of estates. This could cost you and the estate a lot of money! Attwood Marshall Lawyers have one of the largest Wills and Estates team of lawyers in Australia who specialise exclusively in this area of law and can help you understand your duties and perform your role. We provide a free initial consultation in approved matters.
Read more: Defending a contested Will: your role as Executor
Read more: How should an Executor conduct themselves
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 Executors beware! You may be personally liable for the expenses of administering an estate or legal costs of defending a Will appeared first on Attwood Marshall.

Attwood Marshall Lawyers · Jeff Garrett – QLD-NSW Border Restrictions
New rules are in place and are frequently changing as COVID-19 spreads from state to state. On Friday 31 July, 2020, Legal Practice Director, Jeff Garrett, spoke to Steve Stuttle on Radio 4CRB and discussed the current QLD-NSW border restrictions and the penalties that can be imposed if you provide a false declaration.
QLD-NSW Border Restrictions
Even though the QLD-NSW border was officially ‘opened’ on 10th July 2020, the developments in Victoria, and more recently in New South Wales, have caused significant delays at checkpoints with additional information needing to be declared when crossing the border. Accordingly, although the borders are open, police are checking all vehicles for a current border pass and photo ID to establish your residential address, which has caused further delay. The border pass is only effective for 7 days and has been updated or changed by the latest health directives, which has also caught people unawares resulting in problems at the checkpoints.
The latest QLD health directive, which came into effect on 27 July 2020, now declares Greater Sydney as a ‘hot spot’, in addition to the already classified cities of Liverpool, Fairfield and Campbelltown, along with all of Victoria. The spread of COVID-19 from Victoria into New South Wales has vindicated any decision to carefully check anyone who may be entering Queensland from hot spots.
For Queensland residents coming back from any of these locations, or returning from overseas, they must go into government regulated quarantine for fourteen days, at their own expense.
Non-Queensland residents who have been in any of the hot spots in the past fourteen days will be turned back at the border and unable to enter the state.
There are exemptions, which include:

A person who is entering in order to comply with an order to attend a Court or Tribunal or to give effect to orders of a Court or Tribunal; or
Fulfilling a legal obligation relating to shared parenting or child access; or
If the person arrives by air to an airport in Queensland and transfers directly to another flight without leaving the confines of the airport;
If a person quarantines until the time of their flight to leave Queensland; or
If the person arrived in the COVID-19 hot spot and used private transport to travel directly from their point of arrival to an airport in the COVID-19 hot spot without stopping, to depart the hot spot by air;
If the person travelled by road using private transport and taking the most practicable direct route through the COVID-19 hot spot without exiting the vehicle.

There is a helpful summary regarding these border restrictions on the QLD Health website here
Declaring Accurate Information on Border Declarations
Anyone entering the state will be required to complete a border declaration. The declaration asks:

Are you currently a confirmed case of COVID-19?
In the last 14 days have you been in a COVID-19 hot spot?
In the last 14 days have you been overseas, had contact with a person who has COVID-19, or had symptoms consistent with COVID-19?

A recent, well publicised, case where two teenagers returned to the state via Sydney after being in Melbourne has received huge media coverage. They completed their border declaration incorrectly, or falsely, and did not disclose the fact they had come from a classified hot spot, being Melbourne.
It is concerning that more was not done upon arrival at the airport in order to further enquire about the traveller’s origin and mitigate the risk of spreading COVID-19 from other states.
The women have been charged by police, issued infringement notices and are currently under police guard in the Prince Albert Hospital in Brisbane. They are due in Brisbane Magistrates Court on September 28.
For breaching current regulations, the consequences are:

an on-the-spot fine which is $1,334; or
if a penalty is imposed by a Court, the fine is $13,345, and/or 6 months imprisonment

There is also an offence of providing a false declaration which incurs an:

on-the-spot fine of $4,004; or
if a penalty is imposed by a Court, the fine is $13,345, and/or 6 months imprisonment.

The possible outcome of the above matter in relation to the community could be catastrophic, as we have already seen happen in Victoria, and the spread of COVID-19 into New South Wales.
An online petition to Premier Annastacia Palaszuk is currently circulating with the public demanding these women receive jail time. The petition has received over one hundred thousand signatures, with more being added by the minute.
High Court Challenges
Earlier this year, the border closures were a source of contention among state leaders. The challenge by Pauline Hanson in relation to the Queensland border closure, which was also backed by Clive Palmer, was discontinued on 17 July, after the Queensland borders reopened on 10 July 2020. Therefore, the Queensland border challenge is finished, for the time being. The issue would have been whether the government had reasonable grounds to close the borders based on health advice about the risk of the spread of COVID-19.
The challenge to Western Australia’s closure of its borders by Clive Palmer continues, although the Federal Government has withdrawn its support of this challenge, presumably because it believes doing so is now electorally unpopular. The outbreaks in Victoria and NSW would presumably give the WA government reasonable health grounds to close its borders. At the time of the challenges being filed, the outbreaks had not yet been discovered in Victoria. One would think that the latest developments would give any state adequate grounds to close its borders based on health considerations.
COVID-19 and Aged Care Facilities
Attwood Marshall Lawyers have received enquiries from frustrated family members from southern states who are unable to enter facilities to see their grandparents, parents or elderly relatives due to lock-down directives. Communication with aged care facilities in these locations has been disgraceful, leaving family members distressed and unable to obtain information about their loved ones.
It is important for those impacted by current restrictions to stay in contact with aged care facilities, their management teams, and make sure you have access to information about your family member and their wellbeing.
Businesses Affected by Border Restrictions
Technically, there are no restrictions for any Tweed Shire or Northern NSW residents to cross the border into QLD. You are permitted to travel into QLD at any time, provided you have the required current declaration. Likewise, for anyone from QLD travelling into NSW, you have the right to return provided you have the required declaration and do not come into contact with any hot spots or someone suffering from COVID-19, etc. With declarations required to be renewed every seven days, many people are simply forgetting to do so, which is resulting in Police having to run through the declaration requirements every time. This contributes to the long delays being experienced at check points. For people who live on one side of the border and work on the other, this has become a big problem due to the build-up of traffic queues at checkpoints particularly at peak hour times.
Attwood Marshall Lawyers are lucky in that we have offices located in Coolangatta and Kingscliff, which means our staff continue to offer the same exceptional service and accessibility to our clients. Our staff and clients can attend the office which is most convenient to their residence location, without having to run the border gauntlet.
Signing of Legal Documents
For anyone unable to attend one of our offices, The Electronic Transactions Amendment (COVID-19) Witnessing of Documents Regulation 2020 (The Regulations) and the Justice Legislation (COVID-19 Emergency Response – Documents and Oaths) Regulations 2020, allows clients to have their Will, Power of Attorney and Appointment of Enduring Guardian documents signed and witnessed by video, which means these are still legally valid documents and can be signed via Zoom, FaceTime, or a similar application in either State.
We still prefer to witness documents face-to-face where possible, as it is important to be in the presence of the person to check their capacity and make sure the document they are signing correctly reflects the client’s instructions.
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers have implemented an approved COVID Safe Plan to ensure our staff and clients wellbeing are a top priority. We continue to offer phone, Skype or FaceTime appointments to clients as an initial form of communication. Subsequent meetings requiring document signing are conducted following all health protocols in our spacious meeting rooms which are meticulously cleaned and sanitised after every meeting.
Our convenient office locations either side of the QLD/NSW border in Coolangatta and Kingscliff allows you to visit whichever office you prefer and not have to run the border checkpoint gauntlet! We also have offices at Robina Town Centre and Brisbane City in QLD.
If you would like to speak to our team today, call any time on 1800 621 071 or email [email protected]
Read our COVID-19 statement here
The post New rules for crossing the QLD border as COVID-19 continues to spread appeared first on Attwood Marshall.

Attwood Marshall Lawyers welcomes the joint investigation by The Age, The Sydney Morning Herald and ABC TV’s Four Corners which uncovered mismanagement of the state government-run Workers’ Compensation schemes in New South Wales and unethical conduct in the Victorian Scheme.
 
The report notes what we already know – problems in these schemes are “leading to delays and to denials of medical treatment, making some workers sicker and delaying their return to their jobs”.
One email from the NSW Treasury notes that the regulator is “increasingly concerned about the financial viability of the workers’ insurance scheme” and that “the fund’s solvency is at risk”.
The stories from injured workers noted in The Sydney Morning Herald article are of no surprise to Attwood Marshall Lawyers. We see similar events occurring on a daily basis to our clients. It is very distressing to our clients to have to deal with these issues on top of the serious interruption to their lives brought about by workplace injuries. This also makes it difficult to act for injured clients as they cop a ‘double whammy’ with the injury itself and battling the insurance system.
The NSW Workers’ Compensation Scheme
The State Insurance Regulatory Authority (SIRA) is the government agency responsible for overseeing the NSW workers’ compensation scheme There are three workers’ compensation insurers in NSW – icare, self-insurers and specialised insurers. icare provides workers’ compensation for an estimated 3.5 million NSW employees.
icare is meant to support the long-term needs of those injured in the workplace to improve quality of life, and help people return to work.
The chief executive of workers’ compensation regulator State Insurance Regulatory Authority, Carmel Donnelly, told the joint media investigation she had “grave concerns” about icare and was deeply disappointed in its performance. Carmel Donnelly, along with CEO of icare, John Nagle, will appear before a NSW upper house inquiry on Monday 3rd August, to give evidence to the committee.
The troubled workers’ compensation scheme is facing an annual loss of at least $850 million and the NSW Treasury calls for news laws to deal with the sharp rise in medical fees paid by injured workers. The significant loss is expected to worsen as a result of COVID-19.
Concerns about the insurance scheme include ongoing losses, problems with icare’s policy system, and service charges which the regulator says are high relative to other jurisdictions. Despite all the issues with the compensation scheme, icare’s executive team continue to have soaring remuneration. They are likely to be the highest paid executives in the NSW government sector. They have also been queried about conflicts of interest, mismanagement, and collusion with employers to deny claims.
A spokesperson for the Australian Lawyers Alliance (ALA), Mr Shane Butcher, will also tell the inquiry that elements of the Scheme are inherently unfair.
“A person who is injured at work should be entitled to have the costs of their medical expenses covered as long as it is reasonably necessary.”
“Unfortunately, the way the current system operates locks injured workers out of benefits for arbitrary and capricious reasons,” said Mr Butcher.
A System That Does Not Work
In 2018, icare implemented a new claims model which was intended to make claims management more efficient through automation. The new system cost hundreds of millions of dollars. It failed to achieve any level of efficiency as workers struggled to get treatment. This led to a decline in return to work rates, which is a crucial indicator of just how well a workers’ compensation scheme is performing.
Since the new claims model started, there are now estimated to be 20,000 more people off work long-term than before the new claims model was introduced two years ago.
NSW Treasury documents reveal icare has underpaid tens of thousands of sick and injured workers up to a total of $80 million in claims benefits. icare delayed informing regulators of the underpayment scandal for three months and failed to tell the NSW Treasury at all.
icare have refuted the claim that they have underpaid workers up to a total of $80 million, and revised this estimate as closer to $10 million, with 5000 to 10,000 workers being underpaid.
Employers and Insurance Providers Caught Colluding
Insurance giant QBE manages the workers’ compensation claims for corrective services staff, on behalf of icare, in New South Wales.
In a recent report by The Sydney Morning Herald, three prison guards employed by NSW Corrective Services had workers’ compensation claims for bullying and harassment declined by QBE.
A report obtained during the investigation gave a glimpse into strategies used by the insurance company to knock back claims, including doctor-shopping, which is a practice where the insurer or employer use doctors who have a track record of toeing the line. The report also referred to the altering of statements.
This investigation shows just how far insurance companies are willing to go to deny claims of workers who have been significantly impacted or injured at work.
The report cites a disturbing conversation between the employer (NSW Correctional Services) and QBE who were colluding on the best way to decline the claim so that the employee had no choice but to return to work without compensation or treatment.
The Corrective Services employee, who is still on the payroll, tells QBE: “Sometimes it’s cruel to be kind and hit them in the pocket. And when he’s not getting any money and he’s married with kids and most probably his own home, he’s most probably got to think well f— sake I’ve got to do this.”
QBE replies: “Yeah … I think he’s close to that now.”
How does Queensland’s Compensation Scheme Compare?
Attwood Marshall Lawyers is in the unique position of straddling the QLD-NSW border. Our expert lawyers act for those injured at work in both states. We regularly encounter the many disparities between each state’s compensation schemes and frequently call out the self-serving pleas by insurers for QLD to change its compensation schemes to that of NSW’s.
Read more: QLD’s CTP motor vehicle compensation scheme
As one of the only law firms to practice both NSW and QLD workers compensation claims, we are well placed to analyse the primary differences between the two schemes. The information contained below comprises opinion formed over many years working on behalf of the injured worker (and not insurers):
 

 Issue
 QLD
 NSW

Workers Compensation Statutory Benefits
QLD workers almost immediately access weekly benefits, medical treatment and return to work assistance.
Workers are occasionally denied reasonable treatment or cut short on their claims but claims generally run smoothly. Problems are usually rectified efficiently.
NSW insurers usually fight tooth and nail to prevent workers accessing benefits, deny workers access to required treatment and weekly payments for inordinate periods, and/or cut workers off benefits far too early. Rectifying the insurer’s decision then takes considerable time, during which injured workers are often left without support or benefits in place.

Attitude to Workers Compensation Benefits
QLD workers’ compensation insurers generally allow injured workers to go through treatment programs as recommended by their treatment providers.
The QLD system is more collaborative between insurer and injured worker to ensure optimum outcomes. Appeals of incorrect decisions by workers’ compensation insurers are usually addressed readily.
Return to work numbers are higher.
NSW workers’ compensation insurers often contact a worker’s treatment provider to talk them out of recommending treatment, reduce the amount of treatment required, or to certify a worker as fit for work or suitable duties when the treater has already certified that worker is unfit for work.
Despite what NSW insurers say, the system is more adversarial between insurer and injured worker. Appeals of incorrect decisions by workers’ compensation insurers usually take unreasonably protracted lengths of time.

Access to statutory benefit lump sums
QLD workers who have an impairment of 1% or more (i.e. any permanent injury) will receive access to a lump sum commensurate with its severity.
NSW workers will not receive a lump sum unless they have an impairment of 10% or more (which precludes many claims).

Access to Common Law Compensation for Negligence
 
QLD workers injured at work due to the employer’s negligence are entitled to make a common law compensation claim for negligence – without an impairment threshold.
Access to a common law claim is readily available.

In NSW, you need at least 15% whole person impairment to claim compensation for negligence (which precludes all but the most seriously injured workers from even claiming compensation). The threshold is disastrously high and grossly unfair.
E.g. A 45-year-old labourer injures his back at work due to dangerous/faulty machinery, suffers a 12% impairment, has surgery, and can never work in manual employment again. In NSW, he is not entitled to claim common law compensation (lump sum for past and future losses for his injuries) despite the injuries being caused by someone else’s negligence. After receiving a temporary period of statutory benefits, he simply must put up with his impairment for life.

Is the Compensation Awarded fair?
In QLD, common law compensation for negligence includes a lump sum payment for damages for each of the following:
1.    General Damages (pain and suffering);
2.    Past and future treatment and rehabilitation costs;
3.    Past and future paid care costs (e.g. cleaners, gardeners, taxis etc);
4.    Past and future income loss (including interest and super); and
5.    Other/lesser types of compensation.

In NSW, most workers are precluded from making a compensation claim for their losses in the first place.
For those few that breach the 15% threshold to claim, their claims are then heavily restricted.
Injured workers can claim for the following types of compensation:
1.    Income loss.
That’s it.
E.g. if an injured worker in QLD was entitled to $220,000.00 ($50k pain and suffering, $50k paid care, $40k treatment costs, and $80k income loss), the same worker in NSW would only receive $80k for income loss.

Cost of Workers’ Compensation Insurance for employers
Workers’ compensation insurance in QLD not only provides injured workers with far better benefits and compensation, but the scheme is CHEAPER for employers.
E.g. An Electrical Company which pays an estimated $750,000 in wages each year will expect to pay an approximate annual premium of $10,496*.
See how to calculate your QLD premium here

NSW workers’ compensation premiums are higher than in QLD – meaning NSW employers pay more for their insurance despite their employees receiving less in benefits and compensation.
E.g. An Electrical Company which pays an estimated $750,000 in wages each year will expect to pay an approximate annual premium of $13,411*.
See how to calculate your NSW premium here

Which is the most efficient scheme?
QLD has the most sustainable and efficient scheme in Australia. QLD workers compensation fairly balances the interests of all parties – workers, insurers, employers. Outcomes are typically reached in an average of 1-3 years.
NSW’s workers’ compensation system is more expensive, protracted, difficult, and poorly run. Outcomes are not typically reached in 1-3 years. In fact, claims can go on for as long as a decade or more. The system is not efficient.

What do injured workers think?
In QLD, injured workers who resolve their claims tend to be far better off financially and happier with the outcome than their NSW counterparts.
Their claims are resolved sooner, with less frustration of the process.
In NSW, injured workers are rarely happy with the outcome of their claim. It is far more common for injured workers to complain about inordinate delays, protracted pain and frustration, poor access to treatment/benefits, psychological torment, and ultimately poor outcomes due to the nature of the scheme.

*Estimate calculated using $750,000 in annual wages, deducting allowance for 2 apprentices receiving $40,000 in wages. Both policies taken out treated as a new policy holder for an electrical services provider.
Conclusion
The QLD workers compensation is a far better scheme than that of NSW. Anyone injured in both states knows first-hand how miserable NSW workers compensation is compared to QLD (or just about anywhere else for that matter). We don’t wish to be too effusive in praising WorkCover QLD. They have their issues with how they handle claims as well and we have commented on these issues previously. However, it is clear that based on a comparison with other states, QLD WorkCover are by far the best of a bad bunch.
The problem is that insurers frequently lobby members of the government to make changes to the scheme that positively affect insurers and negatively affect injured Australians and their families. This is usually by imposing unfair thresholds, reducing access to compensation, and decimating the entitlements of injured people. Insurers and politicians often bring in legislative amendments to the detriment of workers whilst pushing out stories to the media about allegedly frivolous or fraudulent claims, or excessive legal fees being the true cost to workers –both of which are demonstrably untrue.
Recently, NSW changed its CTP scheme to be more like NSW’s terrible workers’ compensation scheme. This means that those injured on the roads in NSW are now far worse off and have less access to common law compensation for their injuries. Meanwhile, NSW industry participants (excluding those injured!) bend over backwards trying to convince you that the NSW schemes are great.
Even now, super profitable insurance companies routinely lobby the QLD government to change its workers’ compensation and CTP motor vehicle schemes to those of NSW – where insurers win, and injured workers lose out.
If NSW is to have a sustainable, fair, workable, long-term workers compensation scheme, then the government needs to do what they consider unthinkable – COPY THE QUEENSLAND SCHEME! What is the harm? Insurers and employers in QLD are far better off (not just the injured claimants) and the scheme is more profitable, efficient and sustainable.
 
If you have been injured because of the actions or negligence of someone else, you may be able to make a claim for compensation. Attwood Marshall Lawyers can help you every step of the way. 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 Workers’ Compensation schemes investigated as unethical practices exposed – WorkCover QLD the best scheme in Australia! appeared first on Attwood Marshall.

Complaints are flowing in as small businesses battle insurance providers who are denying cover or simply inflating premiums to levels beyond affordable. Property & Commercial Lawyer, Andrea McGarry, discusses the evidence being reviewed by the Australian Small Business and Family Enterprise Ombudsman.
The Inquiry
This week, the Australian Small Business and Family Enterprise Ombudsman announced it will launch an inquiry into Australian insurers’ treatment of small businesses as they have received an increasing number of complaints of “poor behaviour” from customers. The ombudsmen advised it has evidence insurers are ratcheting up premiums or refusing to cover small businesses.
“Small businesses that have held insurance policies for over a decade without a single claim have been refused renewal. Others have discovered their renewal cost has more than doubled,” Kate Carnell said in a statement. “We know of cases where small businesses with current policies have been subjected to major changes that have reduced their coverage without consent, and with no refund of premiums.”
The inquiry will examine the following:

The availability and coverage of insurance policies offered to small businesses;
The affordability of insurance policies;
The role insurance brokers play in the industry;
Contract changes which haven’t been agreed to and whether they’re unfair;
Timeliness of insurance payouts and how effective dispute resolution systems are across the industry; and
The effectiveness of existing legislation and relevant codes of conduct, including existing penalties for wrongdoing.

The Importance of Small Business Insurance
The most common used asset to secure a small business loan is property. Often this property is the family home, which means for many small business owners, protecting the business is the same as protecting their family and their home.
When the risks become too high, small businesses have no choice but to close their doors. Insurance is the primary way for small businesses to mitigate risk to protect themselves, their families, their customers and their employees. Without appropriate insurance, outcomes beyond the control of business owners can bring severe financial distress and loss of assets.
Small business insurance is intended to help protect businesses from unplanned costs when things go wrong. The Australian Small Business and Family Enterprise Ombudsman says the need for insurance has never been greater for small businesses, with natural disasters and the COVID-19 pandemic rocking markets across the country.
At a time where Australia’s economic recovery is a top priority, the implications on small businesses not being able to obtain basic insurance cover poses a serious risk.
The inquiry will commence this month and a final report is expected to be released by December 2020.
Have your say!
If you wish to participate in the inquiry, click here to complete the Australian Small Business Insurance Inquiry Survey.
 
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 Jess Kimpton, Property and Commercial Department Manager, on direct line: 07 5506 8214 or email [email protected]
The post Small Business Ombudsman launches Inquiry into insurance company premium hikes and refusing cover appeared first on Attwood Marshall.

Ensuring Property Contracts are overseen by an experienced solicitor is imperative for property transactions. Poorly written or vague special conditions can lead to contract termination and a loss of an agent’s commission, writes QLD Property Lawyer Raphaelle Worrall.
There are important factors to consider when drafting special conditions and it is critical that these be prepared by an experienced solicitor. In the recent case of Latimore Pty Ltd v Lloyd [2020] QSC 136, the Supreme Court of Queensland provided a judgment and orders for specific performance after a Buyer purported to prematurely terminate a residential contract on the basis that the Seller had failed to comply with an essential term and was in breach of the contract.
Background
A contract was entered into for the sale by auction of a residential property with a 60-day settlement, which the parties agreed was 22 April 2020. In addition to the standard terms of the REIQ Contract, a special condition was added stating:
3.1 Notwithstanding anything else in this contract, the Seller agrees to provide a Pool Safety Certificate to the Buyer 7 days prior to Settlement. The parties agree that this is an essential term of the contract.
It was agreed that “7 days prior to settlement date” was 15 April 2020. At 5.03 pm on the 15 April 2020, the Buyer sought to terminate the contract. This was on the basis the seller had breached the special condition by not providing the buyer with the certificate by 5pm on the due date. The seller provided the certificate at 6:31pm on the same day.
The buyer relied upon the operation of clause 10.4, together with special condition 3, on the basis that the Pool Safety Certificate is a “notice” required to be given “under this contract” or “by law” and therefore since the Certificate was provided after 5pm on the relevant day, it was to be treated as provided at 9am on the following day, in breach of the special condition.
The seller emphasised that special condition 3 does not specify a time by which the Certificate is to be provided. It only specified that the Certificate be provided “7 days prior to Settlement”. The seller relied upon the principle that, where a term of a contract specifies a date by which something is to occur, satisfaction of the obligation can occur at any time on that day, effectively up until midnight.
Decision
The court accepted the seller’s submission and found that clause 10.4(5) did not have the effect that special condition 3 had to be complied with by 5pm on 15 April 2020. It was determined that the seller had until the end of that day to comply with its obligation to provide the Pool Safety Certificate. As the Certificate was provided at 6.31pm on that day, the obligation was complied with in accordance with the terms of the special condition. Accordingly, it was not open to the buyer to terminate the contract at 5.03pm.
Therefore, the court declared that the seller satisfied Special Condition 3 of the contract for the purchase of land within the time permitted by the Contract. The buyer’s termination notice was invalid and of no effect.
Outcome
The court ordered the buyer to specifically perform the contract by paying the Balance Purchase Price of $1,853,807.71, together with any adjustments pursuant to clause 2.6 of the Contract to the seller and pay interest on the sum of $1,853,807.71 between 22 April 2020 and the date of completion of the purchase at the rate of 8.96% p.a., being the contract default rate published by the Queensland Law Society. Upon settlement, the respondents were to do all things necessary, including signing any documentation required by the Deposit Holder, to facilitate the release of the Deposit by the Deposit Holder to the applicant. The respondents were also ordered to pay the seller’s costs of the proceeding on the indemnity basis pursuant to clause 9.7 of the Contract.
How to avoid this happening to you
In Queensland, real estate agents are not qualified or permitted to give legal advice on the contract and any special conditions, or draft special conditions, in any way.
Under section 24 (3B) of the Legal Professions Act 2007, a real estate agent cannot:
(a) provide legal advice in relation to a property contract or other documents; or
(b) provide, prepare or complete a document prescribed under a regulation.
If a real estate agent engages in legal practice in QLD by providing legal advice or drafting special conditions, they will have committed an offence against the Property Occupations Act 2014, section 219. The maximum penalty for breach is 200 penalty units or 1 year’s imprisonment.
Under section 3E(b)(a) of the Legal Professional Act 2007 a real estate agent can only insert a term into, or alter a term of the property contract or special condition if:

the insertion or alteration is authorised by a party to the proposed property contract or other document as an insertion or alteration; or
the insertion is given in writing to the licensee or employee by a party to the proposed property contract or other document as an insertion or alteration; or
it was previously prepared by an Australian legal practitioner, whether or not in connection with the property contract or other document, this provision allows the use of a precedent.

Including all the relevant elements
When drafting a special condition, our property solicitors always consider the other obligations being imposed on a party. This includes the time and/or date by which the obligation is to be complied with, and how the obligation is to be satisfied, needs to be clearly outlined in the special condition. Further, we understand the importance in determining whether the right to terminate the contract is given to the seller, buyer or both parties and how the right of termination may be exercised.  Upon review of the contract and drafting the special conditions, our expert property team ensure all relevant elements have been included.
Clear language
The team at Attwood Marshall Lawyers understand the importance of using clear and unambiguous language when drafting special conditions so parties can accurately determine their rights and obligations under the contract.  We understand that ambiguous wording of a special condition, or not correctly describing the performance of obligation, can cause a party to interpret the clause incorrectly. This can cause a party to not perform the special condition properly. We recognise the issues that can arise from this including providing a party right to terminate, request specific performance or sue for damages.
Review
If you are unsure if a special condition has been drafted correctly to reflect your client’s rights and obligations under the contract, we highly recommend contacting one of our qualified property solicitors to peruse the contract and special conditions to ensure they are accurate before having your client sign the dotted line. This can avoid the possibility of becoming liable for your client’s breach or not receiving your commission due to the contract being terminated.
New South Wales’ position on drafting special conditions
In NSW, the seller’s solicitor drafts the contract and provides this to the buyer’s solicitor for review before contracts are exchanged.  Therefore, special conditions are more likely to be drafted correctly and advice on the special conditions are more likely to be given to the client prior to exchange. This means there is less risk involved.
How can Attwood Marshall Lawyers help?
Our experienced team of property lawyers can ensure special conditions are drafted correctly and will not leave your clients vulnerable to disputes or give rights to a party to terminate, sue for damages or claim compensation. We take the utmost care in reviewing contracts and encourage that this be done prior to anyone signing. This gives clients access to quality advice when they need it most.
Attwood Marshall Lawyers are a leading Property Law firm. For legal help with a conveyance or pre-signing advice, contact Property and Commercial Department Manager Jessica Kimpton on 07 5506 8214 or email [email protected] today.
The post Special conditions in property contracts – the stakes are high if you get them wrong appeared first on Attwood Marshall.

The process of applying for a home loan can be daunting at the best of times. For the estimated 6 million Australians who are currently receiving JobKeeper payments, the financial uncertainty may jeopardise their chances to enter the property market. Property & Commercial Partner, Barry van Heerden, looks at what house hunters may need to consider amidst COVID-19.

JobKeeper Extension
On 21 July, the Government announced the extension of the JobKeeper Payment Scheme, which will continue to be offered to eligible recipients up until 28 March 2021.
From 28 September 2020, businesses and not-for-profits claiming JobKeeper payments will be required to reassess their eligibility with reference to their turnover in the June to September quarter. Businesses will need to demonstrate that they have met the relevant continuing decline in turnover.
A further reassessment will need to be made in January 2021 for the period from 4 January to 28 March 2021.
The payment rate is also being reduced and will be paid at two different rates. From 28 September 2020 to 3 January 2021 the payment rate will be $1,200 per fortnight for those eligible and working for 20 hours or more a week on average. For those working less than 20 hours a week on average will receive $750 per fortnight.
From 4 January to 28 March 2021, the payment rate will be further reduced to $1,000 per fortnight for those working 20 hours per week or more. Those working less than 20 hours a week will receive a reduced payment of $650 per fortnight.
Changes to lending policies
Banks and non-bank lenders have tightened their lending policies around unstable income, with major banks indicating they will not consider an application for a loan if the application is only based on income received from JobKeeper payments. Other lenders have indicated they will treat each application on a case by case basis and may consider income received under the JobKeeper program.
We asked Troy McLachlan, Director of 8 Collective Finance, about what lenders appetite has been during COVID-19.
“From our experience, most lenders have continued to operate reasonably well during this unprecedented time. The main issue we have experienced has been more around lender’s service being affected by changes to their working environments, both on and offshore,” he said.
“Applications are continuing to be assessed based on the individual merits of the applicants. In some instances, there may be some extra questions asked and/or a deeper review of the information provided, with regards to things such as specific industry types. However, if the deal “makes sense” and the borrower can service the loan now and into the future with no foreseeable decline in income, lenders are providing approvals as they were prior to COVID19.”
“Some lenders have released policies around assessing applications for applicants who are currently on JobKeeper. However, one main change is that most lenders are assessing loans by taking the applicant’s income prior to JobKeeper, and the income whilst on JobKeeper, and using the lower of the two figures. Additional declarations may be required by the applicants, however keeping in mind this is no different to the current Responsible Lending requirements in place to ensure that the loan is “not unsuitable” and that the applicants will not have any financial difficulties in meeting the repayments of the new loan”, advised Troy.
Troy explained that some additional work by the Mortgage Broker upfront, with regards to reasonable enquiries and detailed file notes, can help ensure loans are progressing without delays or issues.
Questions borrowers may be asked
The below questions are what may be asked by a lender to determine a borrower’s financial situation when considering the adverse economic effect of coronavirus:

Tell me about your job and the impact of COVID-19?
Has your employer given you any indication that COVID-19 may result in reduced hours or income?
Have you reduced your rental income amount on any of investment properties (if applicable)?
How has COVID-19 impacted your business?
Discuss any future changes you are aware of that may impact your financial situation
Do you believe that you will be able to return to normal employment conditions after the COVID-19 pandemic?

For JobKeeper to be an acceptable form of income, the following criteria must also be met:

A current payslip with evidence of JobKeeper payment and a prior payslip showing previous income
A letter from the borrower’s employer confirming their work status, and any change in income
Evidence of salary being received into a bank account
Evidence of any security that can be provided to better the chances of a successful application. Security may include mortgages on other properties or guarantors from family members.

Pre-approved pre-COVID – What now?
A lender is under no legal obligation to fund a home loan, so even on the day of settlement, the lender can withdraw the approval if they feel it is not in their customer’s best interest to take out the loan. Brokers and lenders will review pre-approved mortgages where borrowers’ financial situations have changed due to job loss or reduced hours.
COVID-19 and Contract of Sale Clauses
For those in a position to buy, it is recommended to include a COVID-19 clause so that you have the ability to rescind the contract in the event of unforeseen circumstances. This information applies to NSW properties only.
The contract must be amended before the buyer and seller sign the dotted line. Attwood Marshall Lawyers can provide your clients with expert legal advice and draft special conditions in order to mitigate any issues that may arise as a result of the current pandemic.
Top tip for house hunters wanting to buy now
The best advice would be to talk to an experienced mortgage broker as early as possible to determine the best lender to approach and compare suitability of home loan products.  Applicants should always ensure that any repayments for existing loans are paid on time, that they have a handle and understanding on their current budget, or living expenses, and can stick to a regular savings plan if they are looking to buy a property or obtain any finance.
How can Attwood Marshall Lawyers help?
The property market on the Gold Coast is currently holding its own and there are opportunities available for buyers to purchase property at reasonable prices.
Should buyers require any assistance with loan documents after their loan has been approved, Attwood Marshall Lawyers can peruse all documents, including any guarantor documents, and provide expert legal advice to ensure a smooth transaction for all parties.
Attwood Marshall Lawyers are a leading Property Law firm. For legal help with a conveyance, contact Property and Commercial Department Manager, Jessica Kimpton on 07 5506 8214 or email [email protected] today.
The post House hunters receiving JobKeeper – pros, cons and considerations appeared first on Attwood Marshall.

Commercial Litigation Lawyer, Georgia Taylor, follows-up on the ongoing behaviour of banks and their remediation programs with ASIC slamming them for continuing to drag their feet.
 
Following from the revelation that banks were still behaving badly in the years preceding the Banking Royal Commission, and during the COVID-19 pandemic (based on data from the Australian Financial Complaints Authority (AFCA)), it seems that consumers aren’t the only ones on the lookout for banking misconduct.
ASIC frustrated as it tries to accelerate compensation
Frustration for customers and The Australian Securities and Investments Commission (ASIC) continues to worsen as the banks and wealth managers spend more money on using unproductive consultants for remediation programs. They are doing whatever they can to reduce the risk of potentially over-compensating their customers.
Documents obtained by The Australian Financial Review revealed the bank’s intention to ignore the regulator’s preferred approach to expedite refunds to customers.
“Many months have been spent in the past arguing with the institutions regarding remediation methodology,” notes the internal briefing paper for top ASIC commissioners in November last year.
“The institutions have often taken a legalistic approach in an effort to reduce the scope of remediation required and the value of repayment to customers,” it said.
Westpac and ANZ spokespeople have said they are doing everything they can to complete remediation programs as quickly as possible. However, the proof is in the pudding with more than 2 million people still waiting for compensation.
How can Attwood Marshall Lawyers help?
The financial services industry continues to suffer a significant trust deficit in the eyes of the community, and for good reason. Banks act in their best interests, and not that of their customers.
If you have suffered financial loss as a result of bad or incorrect financial advice, you may be entitled to compensation. Our Commercial Litigation lawyers are experienced in dealing with lending institution matters and use reputable forensic accountants to assess the conduct of the banks and calculate the losses suffered as a result.
To discuss a banking matter, contact Commercial Litigation Department Manager, Amanda Heather,
on direct line 07 5506 8245,
email [email protected]
or free call 1800 621 071.
The post ASIC slams banks for inaction and spending more money on consultants than to its customers appeared first on Attwood Marshall.