Defending a contested Will can be a complicated and stressful event for Executors. Estate Litigation Associate, April Kennedy, gives valuable insight and her legal tips on this complex area of law to help Executors facing a Will challenge.
 

Attwood Marshall Lawyers · April Kennedy – Defending a Contested Will
Contesting a Will is a controversial topic that often generates polarising opinions. As lawyers, we tend to bear the brunt of other people’s opinions on family provision laws. Generally, people have strong opinions on how the law should operate to allow or prevent certain categories of persons to contest a Will to seek provision (or further provision) from an estate.
Often, when someone is lamenting the unfairness of these laws, it is because:

they do not understand the purpose of the enactment of family provision legislation (enacted to allow for spouses, minor children and financial dependents to seek provision from an estate where the breadwinner gave their assets to other family members or friends); or
they consider that the person contesting the Will is ‘undeserving’ of any entitlement from the estate (perhaps on moral grounds or they are adults who should fend for themselves); or
the person making the Will had good reasons to leave them out, usually based on behavioural issues or estrangement – there’s two sides to every story!; or
they consider that a person should be able to make a Will however they please and that it should be ‘airtight’.

In this context, we often hear throwaway comments such as ‘a Will isn’t worth the paper it’s written on’ or ‘why bother making a Will when it can be contested anyway?’. In reality, if a Will is prepared properly, with the correct advice, and the person making the Will follows that advice, then there are strategies that a person can employ to mitigate the risk of their Will being contested.
However, sometimes it’s too late, and the person left to deal with the aftermath of a Will being contested is the Executor. We often hear or read about cases where the focus is mostly on the conduct and circumstances of the person contesting the Will. There is very little information out there for an Executor who finds themselves dragged into legal proceedings when a Will is contested. Most Executors don’t even know they have been appointed in someone’s Will until after they have died! Imagine their surprise to learn that not only are they an Executor, but they are going to be involved in expensive and stressful Supreme Court litigation. The good news is that they are entitled to engage lawyers to act for them in the administration of the estate and the defence of any claims, with the costs (in most cases) payable from the estate assets. It is very important that Executors engage reputable lawyers who are experienced in this area of law. Obtaining good advice from lawyers who know what they are doing can save you and the estate a lot of money.
When can a Will be contested?
As a starting point, it is important to identify the situations where a Will might be contested. A few common scenarios are:

When someone who the Will maker had a moral obligation to provide for is completely left out of the Will, or is not provided for adequately, under the terms of the Will. For example, a spouse, child or dependent can bring a provision claim against the estate (although this varies from state to state);
When a Will is not prepared and signed properly, or is unclear as to its terms. For example, when the document has not been signed and witnessed or prepared in accordance with the succession laws, or it is not properly drafted so that it is unclear who gets the assets in the estate (DIY or home-made Wills are often set aside because of this);
When the Will maker did not have capacity or was not in the right state of mind to make a Will. For example, if they were suffering from cognitive impairment such as dementia or Alzheimer’s disease.

It is important to remember that a person cannot contest a Will simply because they are not happy with the terms of the document. In a family provision claim, the person contesting the Will must be eligible and they must not have been provided for adequately under the terms of the Will. In other types of Will disputes, the person contesting the Will must have proper standing as a beneficiary under a previous Will or they must have some entitlement under the intestacy laws (when someone dies without leaving a valid Will).
Who is involved when someone does contest a Will?
The most common parties to a claim are:

The applicant – the person bringing the claim;
The executor – the person defending or responding to the claim on behalf of the estate;
The beneficiaries – anyone entitled under the terms of the Will.

What role does the Executor play in defending a claim against the estate?
The executor plays a pivotal role. Their role is to defend the Will and uphold the wishes of the Will maker (to an extent). They essentially step into the shoes of the Will maker and act as their proxy. The role of the Executor can be very demanding, and legal proceedings can take an emotional toll on anyone. This is especially so if the person making the claim is a family member or is known to the Executor.
Once legal proceedings are commenced, the Executor’s role is to answer the claim. This involves meeting with lawyers, going to Court, reading and preparing court documents and affidavits, and setting out the nature and value of the estate. They must also respond to allegations made by the applicant about the person who has passed away (and sometimes about themselves). These allegations can be personal and sensitive, especially if that person is known or related to the Executor, or there are already strained relations between the Executor and the applicant. Quite often the warring parties are siblings which can open a lifetime of contentious issues going back to early childhood.
Defending a contested Will: the legal process
Once a claim is filed, the Executor is required to participate in the court process. The Executor is generally required to participate in alternative dispute resolution methods such as mediation or a settlement conference. The Executor must play an active part in resolving the claim. If the claim cannot be resolved at mediation or settlement conference then the claim will proceed to the relevant Court (District or Supreme Court in Queensland, and Supreme Court in New South Wales) where the case is heard by a Judge.
What should an Executor do when they are defending a contested Will?
When a will is being contested, it is not uncommon for the Executor to adopt one of two approaches:

Fight to the death and try and get rid of the claim at all cost; or
Pay an amount that’s worth more than the claim just to make it ‘go away’.

Neither of these options are optimal.  The Executor needs to consider the merit of the claim before adopting any strategy. They also need to be pragmatic, emotionally resilient and objective. Litigation can be an emotional process where a lot of family history is dug up and dirty laundry is aired in court documents where it is read, discussed and analysed by strangers (i.e. parties to the proceedings, lawyers, Barristers and a Judge).
The Executor also needs to act reasonably and rationally because their costs might not always be paid from the estate.  There are cases where the court has considered that the Executor was acting unreasonably by not providing documents, not abiding by time-frames and being purposefully obstructive. As a result of their conduct, they were ordered to pay a good portion of their own costs from their own pocket as opposed to those costs coming from the estate as they usually do. These costs can be in the tens of thousands of dollars.
Defending a contested Will: what not to do – a classic example
The case of Collett v Knox [2010] QSC 132 should serve as a cautionary tale for Executors. This case involved a claim by a de facto spouse of the deceased who had lived with her for many years and had been granted a life tenancy in relation to the family home.  The Executors (being the children of the deceased) fought the claim all the way to a trial. They took out a mortgage on the estate property and ran up legal costs in the estate with the intention that the family home would have to be sold and the de facto partner would not be able to live out his life tenancy in the property.
The Trial Judge found that the actions of the Executors were unreasonable and had been designed to effectively throw the de facto partner out of the home, arguing it would have to be sold to pay for the legal costs.  The legal costs of the parties were in excess of $100,000 dollars (the Executor’s costs alone were approximately $70,000) and the main asset was the family home which was only worth about $200,000.
The Executors were indemnified for their costs but they were limited to $10,000 which means that they were able to have this amount paid from the estate, but they were ordered to pay the $60,000 balance personally. The case sets out the duties of Executors and the ability of the Courts to intervene and make costs capping orders in order to give effect to the wishes of the deceased. You can read the costs judgment here.
Defending a contested Will: what you should do
As soon as the Executor has been put on notice of a claim, or legal proceedings have been commenced, they should seek legal advice immediately. An Executor should consider the following when choosing their legal representation:

The lawyer or firm is well-versed in the area of Succession Law; and
The lawyer or firm has knowledge and experience in both defending and bringing claims against the estate so they can identify the strengths and weaknesses of each claim.

How Attwood Marshall Lawyers can help
If you are the Executor of an estate and have been threatened with legal proceedings or there is disagreement between the beneficiaries, it is imperative you get quality legal help from an experienced lawyer. A good defence requires not only the solid understanding of the role of the Executor, but also expertise in estate litigation and Succession Law. Many clients come to Attwood Marshall Lawyers after having used their local generalist solicitor or the lawyer who prepared the Will, only to find their time and money has been wasted. Do not risk the estate assets or put yourself at risk of having to pay legal costs out of your own pocket. Seek expert legal help as soon as possible. Many Executors are hesitant to engage lawyers due to the costs involved or fearing they must pay money out of their own funds. In many cases we accept matters on a deferred payment basis where costs are paid from the estate assets at the conclusion of the matter or when they are available to the Executor.
Attwood Marshall Lawyers is a leading estate litigation law firm. Unlike generalist firms, our highly experienced team of lawyers and paralegals are dedicated to the specialist field of estate law and Will contests. We are reputed for our legal expertise, the delivery of exceptional client services, and are proud of our renowned intent to help people.
Read more: Executors behaving badly
Read more: Challenging a Will based on mental capacity
If you need advice on defending a claim on an estate, contact Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email [email protected] or phone 1800 621 071.
The post Defending a Contested Will: Your Role as Executor appeared first on Attwood Marshall.

A Will can provide peace of mind to the Will-maker, knowing their intentions to provide for their family are legally documented. But what happens to those who lack the capacity to write a Will? Litigation Paralegal, Amelia Clout, explains what a Statutory Will is and how it can help minors and those who lack capacity have their intentions fulfilled.
Statutory Wills were first introduced in Australia in 1985. There was a problem identified where a person lacking testamentary capacity was unable to make a valid Will. This included if someone’s Will was out-of-date and since writing their Will, they had developed a condition which affected their capacity. This also included minors who may have suffered significant injury at birth and subsequently received compensation, who then require a Will to ensure the just distribution of their large estate on their death.
To assist with these types of matters, each Australian State and Territory enacted legislation to allow the Supreme Court to make, alter or revoke a Will on behalf of a person who does not have testamentary capacity. Although the legislation varies between states throughout Australia, most of the statutory Will provisions in both Queensland and New South Wales are similar.
For someone to make a Will themselves, it must be satisfied that they have testamentary capacity in accordance with the Banks v Goodfellow test. A Will made by an individual without testamentary capacity is invalid and can cause problems down the track when the testator passes, and family or friends apply to the Court for probate of the Will.
For those who do not have capacity, each state’s respective Succession Act provides the Court with the ability to step into the shoes of the testator and execute a Will that exhibits the intention of the proposed testator, had they had capacity to make the Will themselves.
Read more about challenging a Will based on mental capacity here
Who are Statutory Wills for?
Common circumstances in which a statutory Will is sought includes applications involving:

Minors
Persons who have lost capacity
Persons who have never gained capacity

Statutory Wills have become increasingly common in recent years. One attributing factor to this is the growth of the aging population and the medical conditions that accompany this. The making, altering, or revoking of Wills of someone with dementia or other conditions that affect someone’s capacity, are the most common scenarios in which relief through a statutory Will is granted, however, there are other circumstances in which this order is sought.
Statutory Wills for minors
Testamentary capacity is the legal term used to describe an adult’s legal and mental ability to make a valid Will. Minors are presumed to lack capacity and cannot make a Will.
The Court has found that in some cases it is beneficial to authorise a minor to make a Will so that their estate does not “suffer the consequences which would follow if [they] were to die intestate”, as was the case in Re K.
Intestate simply means someone who dies without a valid Will. When someone dies without a valid Will, their estate is distributed in accordance with a formula set by legislation.
In the case of Re K, the minor was set to inherit a large sum of money awarded through a personal injuries claim. K was estranged from his father and had lived with, and been cared for by, his mother his whole life.
If K were to have died intestate, his estate would pass equally to his mother and father. This was not in line with his wishes.
Granting statutory Wills for minors is slightly different to granting statutory Wills to those who have lost, or never had, capacity. The Court must be satisfied that:

The minor understands the nature and effect of the proposed Will, or the alteration or revocation of the Will;
That the Will accurately reflects the intentions of the minor; and
It is reasonable in all the circumstances that the order should be made.

In all states except Western Australia and South Australia, the Court must also be satisfied that the minor understands the extent of any property disposed of under the proposed Will or alteration.
In Re K, the Court was satisfied that the proposed testator had considered and understood what the Will contained, what people he needed to consider as possible beneficiaries, and the ultimate function of the Will. The Court approved the making of the Will.
Statutory Wills for individuals who lost, or never had, capacity
To have the Will of a person without capacity made, changed or revoked, the applicant/s must follow two steps. These are:

Apply for leave: This is where the court must be satisfied that an application is warranted and that the application is being made in the testator’s best interests.
Make an application: If leave to apply for a Statutory Will is granted, in order to satisfy section 21 of the Succession Act 1981 (Qld), an application must be put forward to the Court which would include all relevant evidence, an estimate of the value of the testator’s estate, a draft of the proposed Will, details of those entitled to the estate and whether it is likely a family provision claim will be made upon the testator’s death. This step contributes to satisfying the ‘core test’.

The Core Test
The ‘core test’ is stated in section 24(d) of the Queensland Act. It requires that, in order to grant a statutory Will, the Court must be satisfied that the proposed Will is one that would reflect the intentions of the testator if they had capacity to make their own Will.
A well-known example of this power being exercised is in the case of ADT v LRT. Here, the proposed testator had dementia and had lost capacity. Her son was getting a divorce, and the proposed testator’s husband applied for a statutory Will to alter the testator’s Will to exclude her son’s soon-to-be ex-wife, the respondent, from benefiting from her estate, as she would have under the current Will.
Regarding section 24(d), after considering the evidence, the Court decided that the testator would have made the decision to make a new Will, excluding the respondent, had she had the capacity to do so herself. The core test was satisfied.
Appropriateness
The final hurdle to overcome is establishing that the order for a statutory Will is appropriate.
This is where ADT v LRT ran into some issues. Although the proposed Will was satisfied to reflect the intentions of the testator, the Court deemed such an order to be inappropriate. The respondent and her husband, the testator’s son, were involved in Family Court proceedings, and the Supreme Court ultimately refused the application for a statutory Will order as it would impact these proceedings, making such an order inappropriate.
Nil Capacity
Nil capacity occurs where an individual has never had capacity. In these cases, it is difficult to establish that the proposed testator would have intended for their Will to reflect the proposed Will had they had testamentary capacity, as they never had.
The same tests apply for making an application for leave to propose a statutory Will and obtaining a grant, however the Courts will likely look to more extrinsic evidence to make this call.
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers are highly experienced in estate litigation and understand this difficult and developing area of law. Should you require advice, contact department manager, Amanda Heather, on 5506 8245 or email [email protected]
The post The court-approved Will for minors and those who lack capacity appeared first on Attwood Marshall.

As last week’s Equestrian Queensland, Equestrian Community Hub Q&A presenter, Commercial Litigation Lawyer, Georgia Taylor, takes a look at our frequently asked questions from the equine community.
 
Insurance
There are a number of important insurance policies that members of the equine community should carefully consider, no matter your involvement either as a professional or enthusiast. However, the following policies are the most vital:

public liability insurance;
loss of income;
permanent disability.

If you’re a member of your equestrian’s governing body (i.e. Equestrian Queensland) you should review the Equestrian Australian national insurance program and see which top-up options may be available through your membership.
Professional Athletes
Riders, coaches or anyone that practices as an athlete within the equine industry, should consider insurance for loss of income and/or permanent disability.
Both insurances can be accessed through superannuation funds or obtained privately through an insurance broker. It’s common for a superannuation fund to attach a loss of income or permanent disability insurance policy to your superannuation fund, however, this does not necessarily extend to a dangerous sport, such as equestrian.
It is important you contact your superannuation fund to determine what your level of cover does provide for. An insurance broker or legal practitioner can review your policies and provide you with adequate advice on if you are appropriately covered. If you’re not, you will be able to obtain advice on what cover you should be looking to take out.
Property Owners
The second type of insurance policy which is important within this field is public liability insurance.
An off-the-shelf home and contents insurance policy will generally not cover any business that is conducted on a property.
Whether you’re a coach who has riders attend your property, you’re running an agistment business, or you’re a professional trainer, your standard home and contents public liability policy isn’t underwritten to assume the liability of running these types of activities on your property.
You may need to consider a policy commonly referred to as farm insurance. Farm insurance is designed to provide cover for a range of risk protection, with peace of mind and financial protection against an array of insured events, including equine and stud stock.
Purchase and Sale Contracts
Purchase and Sale Contracts can frequently lead to litigation if not drafted correctly or done at all. There are three main areas that are either commonly disregarded or frequently litigated over, these include:

Jurisdiction of sale
Disclosure
Risks associated with purchase

Jurisdiction
The jurisdiction of the purchase is often disregarded as when you are purchasing a horse, you don’t necessarily consider what would happen if a dispute ensues. However, if a dispute does occur it is necessary to be able to determine where the purchase (i.e. contract) took place as this will determine the laws that apply to any Court action.
For example, if a Queensland buyer purchases a horse from a Victorian seller, the horse is located in Victoria, the money is transacted in Victoria, therefore it is likely that laws of Victoria will apply.
You can choose to stipulate in your contract which state or territory you want the contract to be bound by.
The main reason to do this is for convenience. If you’re located in Queensland and need to proceed with a dispute in another state or territory, this means you will need to hire a lawyer, and potentially counsel, in that jurisdiction and travel to the location for Court hearings in relation to the matter.
This can be an expensive process which will only add to an otherwise expensive challenge you have in proceeding with litigation of a sale contract.
Disclosure
The most litigated topic in relation to purchase and sale contracts is the non-disclosure of a material fact regarding the horse from a seller.
If you’re a seller, you must disclose all possible information to the buyer about the horse, including all details regarding its temperament and medical history. The more information you can provide, will mitigate the risk of the buyer being able to sue for damages for misrepresentation should something unfortunately go wrong with the sale.
For buyers, the general contractual principal is ‘buyer beware’.  As a buyer you need to do your due diligence and ensure that what the seller has presented the animal to be is true. This can include completing a vet check, flexion testing, blood work and x-rays, should the purchase price allow for these checks to be undertaken.
The buyer must have the consent of the seller to perform any veterinary checks on the horse and the seller (and if possible the buyer) should be present for any examination.
If you’re concerned at all about the horse’s temperament or previous medical history, then it is critical you get this checked prior to entering a purchase and sale contract, especially if you’ve been provided disclosure by the seller as to any issues.
Risk
When the risk passes from the seller to the buyer is often misunderstood or disregarded. Many buyers assume that the risk passes to the buyer when the money hits the sellers bank account, or when the horse is in the buyer’s possession.
Both these scenarios can be correct depending on what the contractual arrangement is.  In general, case law supports that the risk of the horse passes from the seller to the buyer upon payment of the funds. That is the consideration that forms the contract.
This is something that needs to be considered depending on your unique circumstances.
The best way to mitigate this risk and ensure both parties agree on when the risk passes from seller to buyer is to have the term stipulated in a written contract.
Agistment Agreements
Agistment agreements are one of the most common contractual arrangements in the equine industry. For horse owners and owners of agistment facilities, it is important for all parties involved to understand what their obligations are to the horse to ensure a successful collaborative working relationship between property owner and horse owner.
There are three different types of agistment contracts. These include:

Self-care
Part care
Full care

If you’re a professional trainer, then training will either be additional or inclusive based on the agreement made with the owner of the horse.
Self-care and part care arrangements tend to require more clarity within the agreement as to who will be responsible for which duties and how and when will these be performed.
What should be included in an Agistment Agreement?

Date of agreement
Address of property along with agistment business name, contact details and ABN
The property location, size and feed type
Insurance held by both parties
Facilities
Level of care agreed upon
Access rights for the animal owner
Fees
Type, quantity and timing of feed and supplements
Payment schedule and method of payment
Communication procedures
Veterinary call out procedures
Responsibility for losses
Dispute resolution clause
Right of lien
Training schedule (if applicable)

These terms can be negotiated and agreed upon between the agistment property owner and the horse owner so that both parties know that the horse is going to receive the appropriate care.
What happens if a horse owner does not pay their agistment fees?
Without an appropriate Agistment Agreement there is very little that can be done. It may be the case that the agistment owner needs to approach the Court to obtain permission to either sell the horse to recoup costs or pursue the owner for any damages that may have been suffered as a result of the actions or negligence of the horse owner. Which of course, along with the additional costs of faring for the horse during this process, is often unequitable for the owner of the property to pursue.
How can Attwood Marshall Lawyers help?
With an experienced team who understand the equine industry and laws applicable to the equine industry, we can offer a comprehensive service, whether that be drafting buy and sell contracts or agistment agreements, handling compensation claims for injured jockeys or staff, providing taxation advice and ATO Racing Industry Audits, and business structuring for breeders and owners and dispute resolution.
For advice and guidance, contact department manager, Amanda Heather, on direct line 07 5506 8245, email [email protected] or free call 1800 621 071.
 
Watch Georgia’s video here:

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Capacity can be an emotionally charged topic, especially in relation to Dementia or Alzheimer’s and other degenerative conditions. Estate Litigation Associate, April Kennedy, discusses how a Will might be challenged on the basis of mental capacity and why this is such an important issue.

Attwood Marshall Lawyers · April Kennedy – Capacity
What does capacity mean from a legal perspective?
There are different types and tests of capacity, including the capacity to:

make a Will
make a Power of Attorney (POA)
enter into legal proceedings
enter into a marriage

When discussing Wills, we are referring to ‘testamentary capacity’. There’s an old English case which is still good law today called ‘Banks v Goodfellow’ and this sets out what the test for testamentary capacity is. When making a Will, a person must:

understand the nature and effect of a Will – a person must understand the legal document they are preparing, and that it forms their wishes after they pass away.
understand the nature and extent of their property – a person must have a good idea as to what they own, whether that be property, shares, bank accounts. For example, those who own a bank account must know which financial institution they bank with, and the approximate value of those bank accounts.
comprehend and appreciate the claims to which they ought to give effect – a person must be able to understand they have a moral obligation to provide for, and the effect of the gifts they are giving, in their Will. They must be able to appreciate that they have a moral obligation to provide for a dependent person, whether that be a spouse or a child, and they must understand how much they ought to provide them and whether that provision is considered ‘adequate’ for their proper maintenance, support and advancement in life.
not be suffering from any disorder of the mind or insane delusion that would result in an unwanted disposition – this is old terminology but a person must not be suffering from any condition that affects their mind and capacity to make decisions whilst taking into consideration the above factors. This arm of the test refers to conditions such as dementia, Alzheimer’s Disease, etc.

Sometimes it is a difficult exercise to determine whether someone has the requisite testamentary capacity to provide instructions for a Will when they are suffering from dementia or some other injury caused condition or illness (e.g. a head injury or stroke). In the 19th century English House of Lords case of Boyse v Rossborough (1857) 6 HL Cas 1 at 45, Lord Cranworth, who was also the Lord Chancellor, observed the difficulty in relation to this test:
“There is no possibility of mistaking midnight for noon; but at what precise moment twilight becomes darkness is hard to determine.”
This case and this comment were referred to and accepted by the same Court in Banks v Goodfellow, some 13 years later and continue to be applied to this day by our state Supreme Courts and the High Court of Australia.
On what grounds can a Will be challenged based on capacity?
There are many ways a person can challenge a Will based on the capacity of the Will-maker (or lack thereof). It is a heated area of law. Sometimes when a person is unhappy with the contents of a person’s Will and the Will-maker exhibits subtle symptoms that resemble dementia, such as forgetfulness, then they will use that as grounds to challenge the Will. It can be difficult to determine whether there are grounds to challenge a Will on this basis, so it is important to seek advice early on.
The most common types of claims when someone is challenging a Will based on capacity, include conditions such as:

Dementia
Alzheimer’s
Degenerative conditions or diseases, such as Parkinson’s or Motor Neuron Disease
Conditions that can affect your speech and physical capabilities are generally considered when determining capacity in these types of claims.

People may not necessarily lack capacity, but they might display paranoid behaviour where they change their Will after believing things that may not necessarily be true. They may have a certain perspective that is skewed which can impact their decision making.
Are there other ways a Will can be challenged based on someone’s mental state?
Yes. There are grounds to challenge a Will based on emotional or psychological pressure put upon the person writing the Will. For instance, the will-maker might be under duress or being unduly influenced by a third party.
The most common instance of this behaviour is when a family member or carer becomes part of the Will-maker’s life in a big way. That person accompanies the Will-maker to their solicitor to have their Will made during those later stages in their life. This can create a pressure environment where the Will-maker feels obligated to change their Will to include this person and cut out other family members who they may have been close to their entire life. The Will-maker may feel obliged to do this as a way of repaying someone for their companionship or friendship.
This is not a medical disorder, but it is a sense of obligation or pressure that otherwise influences the Will-maker. This is prevalent in the elderly and considered elder abuse.  Especially because elder people can be vulnerable and susceptible to psychological or emotional pressure. For this reason, it is necessary to determine whether the Will was prepared under ‘suspicious circumstances’.
Another challenge may be based on lack of knowledge and approval of the Will. These types of claims usually arise when there’s a DIY Will, or a handmade Will, especially if the person making the Will is either:

deaf
unable to speak
paralyzed or unable to write
blind; or
illiterate

In these cases, they may have had someone else sign the Will on their behalf because they were physically unable to do so themselves. A knowledge or approval claim is essentially someone contesting the Will on the basis that that person did not know what they were signing.
What evidence might be used in a Will contest on the grounds that the Will-maker had impaired capacity?
For these types of claims, the main types of evidence used are:

Medical reports and clinical notes
Specialist reports
Witness statements from people who knew the deceased and knew the history of the relationship between the parties involved
Telephone log history and bills
Bank account statements
Facebook messages
Social media posts and history
Handwritten notes
Photographs to show history of relationships between parties
Digital notes in a person’s mobile or tablet device

It can be very costly to challenge a Will on capacity and evidence is critical to determining if a claim has merit.
What can people do to ensure there are no questions over the Will-maker’s capacity?
It is recommended to have a Will prepared by a solicitor, especially if there are going to be capacity issues or if there are any suspicions someone may make that claim down the track.  Memory loss, early stages of dementia or any physical impairment that may leave a Will-maker open to someone making a capacity claim should be handled with care by an experienced solicitor who can mitigate these risks.
We’ve seen these reasons, and many more, result in Will contests.
Should someone obtain medical reports at the time of making a Will?
Yes – that is the first step we take in these situations, especially if we suspect a capacity issue could arise. Capacity can be a sensitive topic to talk about, especially with the elderly. It is a hard topic to broach and it can be difficult to say to someone that we consider you may not have capacity, or we want to ensure that you do have capacity in order to write a Will. These questions can be demeaning to someone, however at Attwood Marshall Lawyers, we’re trained to handle capacity issues in a professional way. It might not necessarily be the Will-maker’s capacity we are concerned about, it may be regarding a family member or third party who accompanies that person to their appointment and we can see they are making a dramatic change to their Will. In these instances, having a letter from their doctor will serve them down the track.
Another step we take is performing our own test during the course of the interview with a client. We have contemporaneous file notes. This is crucial to these types of claims.
There are several cases that suggest the evidence provided by the solicitor who prepared the Will were preferred to medical reports. The reason for this is that testamentary capacity is a legal test, not a medical test. Unfortunately, when it comes to do-it-yourself Wills, there’s no evidence of this kind if someone was to contest on these grounds. Therefore, those types of documents will often be contested.
What if someone has been diagnosed with early stage dementia?
A diagnosis like this doesn’t necessarily mean you can’t make a Will. There are different stages of dementia, or degenerative conditions, and it doesn’t automatically mean you do not have capacity. There are certain stages even in later stage dementia where a person can have lucid periods. An experienced estate lawyer will be able to help you navigate these issues and concerns, can help you make a Will, making sure appropriate notes are taken and all the evidence is documented.
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 South East Queensland, 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 think you are eligible to contest an estate 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.
 
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AFCA has been inundated with consumer complaints as customers struggle to make financial arrangements with their bank or insurance provider. Many customers are simply having their claims denied leaving them in financial hardship during the COVID-19 pandemic. Attwood Marshall Lawyers Commercial Litigation Lawyer, Georgia Taylor, discusses how customers have once again come off second best.
 
Introduction
Hailed as an opportunity to scrape up what they have left of their tarnished reputations following the Hayne Royal Commission, it seems that the banks have missed the boat to assist customers suffering financial hardship as a result of the COVID-19 pandemic.
Unfortunately, government restrictions and heavy job losses have pushed many taxpayers onto the ‘Job Seeker’ program which for those prior medium to high income earners, is a fraction of the income they’ve budgeted their livelihood upon. This has left the government to appeal to the financial institutions to give the reprieves necessary to small businesses, homeowners and investors in order to help them get through these difficult times.
In the early days of the pandemic, while the government was still working on their stimulus regimes, it was reported that the banks had already given out up to $700 million in loans, however, it seems some customers were being left out of the loop, even appealing to their local MP’s for assistance.
Why have bank customers come off second-best during the pandemic?
The Australian Financial Complaints Authority (AFCA) who are now the go-to for consumer complaints against banks, insurers and other entities with a registered financial services license, have reported that they’ve been inundated with complaints relating to COVID-19 and these are expected to continue to grow through to the end of 2021. AFCA has received over 3,180 COVID-19 related financial complaints since the Coronavirus (COVID-19) was declared a pandemic in March 2020.
Speaking to members at an online forum recently, Chief Operating Officer Justin Untersteiner revealed the COVID-19 related complaints included 1,430 banking and finance complaints (with 680 of these relating to financial difficulty), 1,070 general insurance complaints and 610 superannuation complaints.
“Many of these complaints result from poor communication, where a consumer has trouble contacting their firm, does not understand their policy, or is confused about the information they receive,” he said.
Vulnerable consumers have been left struggling to repay mortgages and other debts and are frustrated as they are unable to come to an agreement with their bank or financial institution, despite the bank’s public appeals and self-proclamations that they’re doing all they can to assist.
A large proportion of AFCA complaints have been related to:

Denied travel insurance claims
Delays with early release of superannuation
Banking and finance complaints
Disputed transactions
Requests to extend payment terms
Claims made under income protection and business interruption insurance policies

Banking and Finance Complaints
AFCA has urged financial institutions to actively engage with their customers and resolve issues as early as possible.
Mr Untersteiner urged financial firms to provide early, proactive communication with consumers following an increase in complaints relating to COVID-19.
“To support consumers, we encourage financial firms to ensure their contact details and resources are visible and accessible and allow for genuine engagement with customers to resolve issues early on.”
Many financial institutions have been unable to handle the influx of enquiries due to their offshore call centres being closed when COVID-19 restrictions first rolled out and the additional calls being managed by local staff. This has left customers in the dark, unable to discuss their unique situation and struggling to meet their financial commitments.
A large number of complaints were in relation to loan break costs, with many customers looking to discard their fixed rate home loan for a cheaper alternative. AFCA has urged lenders to waive loan break costs in order to help consumers during this unprecedented time.
There is an expectation for these types of disputes to continue to rise as temporary measures, such as mortgage deferral periods and government assistance packages, expire and consumers are once more left to re-evaluate their financial commitments.
My Untersteiner said AFCA anticipates receiving more financial difficulty complaints in the next 18 months.
“We expect to see more complaints from vulnerable consumers or others who struggle to repay mortgages or other debts as Government and sector support initiatives come to an end,” he said.
“This won’t just be an issue for banking and finance, many will turn to their insurance policies to look for help, and in some cases, they will not be covered which will lead to disputes.”
Travel Insurance Complaints
Consumer complaints about travel insurance have almost tripled during COVID-19 with many travellers left with great financial loss. Many customers who took out insurance assuming it would cover them, were left disappointed when insurance companies refused to pay on the basis that the policies no longer covered losses relating to COVID-19 after WHO announced the worldwide pandemic. This is despite the insurance being taken out prior to the pandemic being declared.
Travellers were not necessarily alerted to the change in policy after COVID-19 had escalated to pandemic stage and this lack of communication is what has led many to take their complaints to AFCA.
An analysis of 32 travel insurance policies by Finder.com found that eight did not refer to epidemics or pandemics or were not clear on how claims related to these events would be treated.
The average time to resolve a general insurance complaint by AFCA is 65 days. Consumers not happy with AFCA’s ruling are advised to seek alternative legal action.
Early Release of Superannuation
Many consumers have requested early release of their superannuation to try to cope with financial hardship due to COVID-19, but have been met with either delay or denial of that early release of funds.
Customers have been left waiting for unacceptable periods with superannuation companies challenging the claims. AFCA has indicated that many of these matters lead to denial or delay due to:

The superannuation trustee challenging discrepancies in the complainant’s identification data
The superannuation trustee needing original documents to provide the complainant’s identification
Superannuation trustee delays in coordinating with the ATO in relation to early release applications

Claims made under income protection and business interruption insurance policies
There will be a large number of consumers directly affected by the loss of their usual salary or income associated with their usual occupation.  Although many employees hold income protection policies of insurance, the circumstances under which cover is activated vary from policy to policy. Usually the policies are activated due to someone’s job being interrupted by illness or injury, however there are many policies that cover people who have lost their job for whatever reason.  The issue will be whether the policy holds an exclusion clause involving loss of your job or income as a result of the COVID-19 pandemic. Many insurance policies have an exclusion clause which specifically denies cover in the event of losses suffered due to a pandemic. Many of the policies refer to an outbreak of some form of disease that is based on now redundant former legislation under the repealed Commonwealth Quarantine Act. The Quarantine Act has been repealed and therefore the argument is that this exclusion would not apply given that the legislation contemplated under the exclusion clause no longer exists. No doubt the insurance companies will be arguing that the exclusion does apply.
Similar issues arise in relation to business interruption insurance. There would only be a minimal number of businesses that were not affected by the onset of COVID-19. Even businesses which continued to operate suffered significant losses and a downturn in their turnover, notwithstanding the fact that they were able to continue their operations either through exemptions or staff working from home etc. However, the significant number of businesses who have registered for the JobKeeper scheme would indicate that the losses suffered by these businesses (which would range in percentages exceeding 30% for businesses under an annual turnover of $50 million and 50% for those businesses with a turnover exceeding this amount).
Many of the business interruption policies contain similar exclusion clauses to those of income protection and no doubt there will be a similar legal argument in relation to the definition of whether the COVID-19 pandemic constitutes grounds for the insurance company to deny liability. Given that insurance companies generally take any opportunity to deny claims, it would not be a surprise to see insurance companies fight these issues as hard as they can.
How long does AFCA take to deal with matters?
AFCA generally takes six weeks to review a simple case, and eight to twelve weeks for more complex matters, which includes the case management and adjudication period. AFCA are of course doing what they can with limited resources, but it may be too little too late for some customers already struggling to stay afloat.
Having lawyers experienced in this area acting for you can speed up the negotiation process with the banks and we have had success in many cases involving our clients through an informal mediation process. This only works if the banks are agreeable to do so, but it is usually a quicker and more cost-effective way to deal with the dispute.
How can Attwood Marshall Lawyers help?
If you are experiencing financial hardship due to COVID-19 and have not accepted the decision made by AFCA in an attempt to resolve your complaint, you have a legal right to take your complaint further.  For those who have suffered a large loss due to a financial institution, court action may be your only avenue to seek compensation for your loss. In some cases, we may be able to represent you in an informal mediation process with the banks or the insurance companies. Our experienced Commercial Litigation team can help determine your right to compensation and in many cases accept this on a “no-win-no-fee” basis*.
For more information or to discuss your circumstances, please contact our Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email [email protected] or free call 1800 621 071.

*Only to approved cases where there is genuine financial hardship and claims have a good prospect of success.
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With positive changes rolling out in the industry and restrictions lifting further, there is a buzz being felt in the property market. Licenced Conveyancer, Rachel Godden, takes a closer look at how the real estate industry has changed and what we can expect in the future.

Consumer behaviour and attitude
Interstate buyers are set to spend big on Gold Coast property as restrictions ease.
With Queensland’s borders set to open to all states and territories, except Victoria, on July 10, there’s a buzz being felt by Gold Coast Real Estate Agents as they brace themselves for a sales rush.
The border reopening has provided a light at the end of the tunnel for many buyers and sellers, as eager interstate buyers are already submitting lists of properties they want to see once border restrictions are lifted.
Recent research by Westpac into spending and savings trends during COVID-19 has revealed the changing spending habits and lifestyles of Australians this year. With these changes taking place, more than a third of Queenslanders are determined to save for their first property.
Approximately 60% of survey respondents indicated that they realise they previously spent too much on things they simply did not need and are driven to change the way they manage money into the future. With holiday and travel activities on hold, the reduction in discretionary spending has put more people in a better position to save for a new home.
With workplaces becoming more flexible offering working from home arrangements, people may not feel as restricted to live as close to central business districts. Many people are considering the possibility of a sea change and are looking to move somewhere less populated than the major cities. There’s a real value of homeownership now during a time when most Queenslanders are spending much more time at home.
Realestate.com.au has reported an almost 50 per cent increase in property searches for listings in regional parts of Australia such as the Gold Coast, compared to last year. Those residing outside of Brisbane are especially keen to move closer to the coastline.
There has been a significant increase in enquiries from NSW residents and Victorians eager to buy across the border and seek the lifestyle the Gold Coast has to offer. Their real estate dollars go a lot further than the major cities they currently live.
Interstate buyers have also been purchasing property on the Gold Coast only having done a virtual tour of the premises, with border restrictions keeping them at a distance.
PEXA (e-Conveyancing)
PEXA is digitally transforming the property exchange experience with:

Efficient settlement with real-time lodgement of documents
Fast access to cleared funds
Safe encrypted signing and funds exchanged via the RBA

With over 9,000 members Australia-wide, e-Conveyancing has simplified the property settlement process and brings settlements into the digital age.
As of 1 July 2019, it was made mandatory in New South Wales that all transactions take place on the e-platform. In Queensland, those mandates have not yet been set. However, as COVID-19 hit, there has been a rush of Queensland solicitors registering or starting to transact in PEXA. Clients were wanting some security that their matter could still be settled should we go into a mandatory lockdown. Agents were including conditions in contracts that it was an essential term for settlement to be affected on PEXA and would only refer clients to Solicitors who were able and willing to do this.
Read more: PEXA transactions critical during Covid-19
HomeBuilder Grant
Both NSW and QLD have introduced a HomeBuilder Grant of $25,000 to build a new home or substantially renovate existing homes. First home buyers are also eligible for the grant if they meet the criteria as well as still being eligible for stamp duty concessions.
The grant is only available for contracts entered into between 4 June 2020 to 31 December 2020.
To be eligible for the HomeBuilder Grant you must:

Be a natural person (not a company or trust);
Be 18 years or older on the contract date;
Be an Australian Citizen;
Meet the income caps of either:

$125,000 p/a for an individual on their 18/19 taxable income; or
$200,000 p/a for a couple based on combined income 18/19 taxable income

Enter into a contract from 4 June 2020 to 31 December 2020 to either:

Build a new home as principal place of residence. The value of the house and land must not exceed $750,000; or
Substantially renovate a principal place of residence where the contract is more than $150,000 but not exceed $750,000 and the value of the existing property does not exceed $1.5 million.

The Office of State Revenue is working to make HomeBuilder available for Queenslanders as soon as possible. It is expected that an online application form will be available in early August.
QLD are also providing a regional home building boost grant to those buying or building a new home of less than $750,000. You can check your postcode eligibility here https://www.qld.gov.au/housing/buying-owning-home/financial-help-concessions/regional-home-building-grant
Abolishing Stamp Duty (NSW)
NSW is considering the abolishment of stamp duty to help boost the housing economy. It has been suggested that the introduction of an annual land tax could be the solution which will allow more freedom for people to move and not have to consider a lump sum payment during their transaction. This may encourage seniors to downsize and move which will put more houses on the market for new buyers.
Currently, there are some instances where stamp duty isn’t payable, such as in the event of a breakup of a marriage, and the property is transferred from both parties to the other party or the party that’s remaining in the property, or in the case of transfers between married couples and de-facto partners.
If New South Wales is successful in abolishing stamp duty and reviewing their land tax strategy, the transition could open the door for other states to follow suit.
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers are positioned right on the border and with offices in Robina Town Centre, Coolangatta and Kingscliff, our team can assist buyers with residential homes and investment properties in both states, even prior to the borders opening. Our experienced conveyancing team ensure new home buyers and property investors receive the most professional property law services when making their purchase.
Attwood Marshall Lawyers are a leading Property Law firm. For legal help with a conveyance, contact Property and Commercial Department Manager, Jessica Kimpton on 07 5506 8214 or email [email protected] today.
 
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Many people are unaware of the obligations as an Executor of an estate. Wills & Estates Senior Associate, Lucy McPherson, discusses an Executor’s role, and the removal of an Executor who behaves badly.
 

Attwood Marshall Lawyers · Lucy McPherson – Executors Behaving Badly

What does the role of an Executor entail?
When preparing a Will, one of the most important decisions a person can make is who to appoint as the Executor of their estate. An Executor’s duties are far reaching. They essentially stand in the shoes of the deceased person after their death to administer and distribute their estate in accordance with the law and any terms of the Will.
The Executor will also need to respond to any litigation that arises in relation to the estate. It can be quite an onerous role.
The person appointed as Executor needs to be aware of what is involved and the time it is going to take in their lives to fulfil the role. They need to understand what is going to be expected of them. It is not to be taken lightly.
The duties of an Executor can include:

Arranging disposal of the deceased’s body
Arranging the funeral
Obtaining a grant of probate
Collecting the assets
Selling assets (where appropriate)
Making sure assets are adequately insured
Attending to the payment of debts and liabilities
Administering Trusts
Keeping accounts
Responding to litigation (which can be one of the most onerous jobs for an Executor)
Settling any claims that can be bought on an estate
Distributing the estate pursuant to the terms of the Will

If you have been appointed Executor of someone’s estate, what do you need to do?
The first thing you need to be aware of is that you don’t have to accept the appointment. Many people are under the assumption because they have been appointed as an Executor, that they need to accept the appointment and move on with the role. This is not the case. Executors can renounce their appointment.
If you choose to renounce your position, this needs to be done immediately. You can’t renounce once you have begun intermeddling in the estate. This can be an understandable position to take given what can be involved fulfilling the role of Executor, particularly when dealing with contentious estates. It’s not for everyone. It can take up a lot of time and energy and you can be responsible to third parties for your actions. If you make a mistake during the course of the administration, or don’t act reasonably having regard to your duties, you can be putting your personal assets at risk. Most people are not aware of this risk.
Usually Executors are indemnified for liabilities against the estate assets, but that’s not always the case. You can potentially be opening yourself up to personal liability.
What kind of obligations does an Executor have to the beneficiaries of an estate?
The Executor has a fiduciary obligation to the beneficiaries of the estate to act in their best interests. Fiduciary simply means a relationship of trust.
Unfortunately, not all Executors act appropriately, and beneficiaries are required to seek removal of an Executor from office in this instance.
Some examples where a beneficiary may choose to do this could be if an Executor is:

not administering the estate properly
not administering the estate fast enough (causing considerable and unexplained delays)
acting in his/her own best interests and placing those interests before the beneficiaries of the estate

Proceedings for the removal of an Executor can be taken by any party who has sufficient interest in the estate. This would usually be a beneficiary. The courts aren’t generally in the fashion of removing an Executor for light reasons. Their conduct needs to be sufficiently grave to warrant their removal.
Here are some examples of actions that may warrant an Executor being removed from office:

An estate has not been administered and it is five years past the date of death
Where the Executor has placed their interest in front of those of the beneficiaries by moving into the estate property and living in it rent free whilst the other beneficiaries are waiting for the property to be sold and for the proceeds of sale to be distributed according to the Will

What happens if an estate is contested?
If you are an Executor of a Will but also a family member, you could be thrown into the hot-seat if a claim is made against the estate or if there is a dispute concerning the validity of the Will.
We find that many Executors can also be a residuary beneficiary of the Will and sometimes their entitlements as a beneficiary can conflict with their duties as the personal representative or Executor of the estate. Although the primary duty of the Executor is to uphold the terms of the Will, the Court commonly reminds us that an Executor must not vigorously defend a claim. An Executor must consider the merit of all claims and if there is merit, in order to avoid the significant costs that can be incurred in litigation, there is case law that clearly stipulates that an Executor should attempt to settle those claims in order to avoid incurring significant legal costs.
This can be difficult for an Executor who may have an emotional attachment to the deceased and want to uphold the integrity of the Will and do their best to follow through with the deceased’s wishes.
Despite this, the legal interests of a claimant need to be considered, alongside the commercial reality of litigation. Litigation is expensive and if an Executor can avoid that expense for the estate, they should, when a claim has merit.
How can conducting yourself unreasonably as an Executor open you up for personal liability?
Courts are not shy to make adverse findings against Executors who have acted unreasonably and conducted themselves in a manner which is inconsistent with their duties to act in the best interest of the beneficiaries.
These duties include the duty to preserve or maximise the estate assets. This is particularly relevant when the Executor is also a beneficiary in the estate. By opposing a claim made, they are benefiting themselves by defending any claim made against the estate at all cost. Sometimes, those in the role of Executor might think they have the financial resources and assets in the estate available to defend this action, so they fight the claim at whatever cost. The courts may not allow the Executor to take that approach, particularly when they have an interest in the estate themselves.
What we find in those scenarios is that the applicant in the litigation is usually financially strapped which plays a significant role in the court’s findings.
A way a court could penalise the parties is by making a cost order against a litigate on either side of the litigation. So, in a circumstance where an Executor is a party to the litigation and it can be shown that they haven’t acted reasonably and conducted themselves in an appropriate manner, during the course of the litigation, the court can make an adverse cost order against an Executor personally.
What that means, the Executor can’t turn around demand the legal costs come out of the estate assets. They will have to reach into their own pocket to foot that bill.
It can be risky and quite frightening to think you are taking on these matters in a representative capacity but you can also open yourself up to personal liability in doing so.
Advice for anyone appointed as an Executor of a Will
We find that emotional pressures can be applied by family members for you to act in the role as an Executor. Acceptance of this role can come with significant burden. There is value in appointing a professional to act in the role in those circumstances. In an estate that can become quite contentious, I would recommend having an independent professional appointed as the Executor. This removes the emotional pressure that can sometimes be applied to family members who may not want to take on that role.
If you have been appointed as an Executor, you should be aware of the role and what is expected of you. Seek legal advice as soon as possible from a specialised lawyer who acts in this area of law and find out what’s involved. If you don’t think you are up for it, then you can renounce and if you decide to take that course, you should consider doing so immediately.
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers is a leading estate litigation firm. If you have any enquiries concerning estate planning or need estate litigation advice, call our dedicated team today. Please contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email [email protected] or free call 1800 621 071.
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Getting your Will done has never been easier, notwithstanding the restrictions imposed by COVID-19, says Attwood Marshall Lawyers Wills & Estates Partner, Angela Harry.

Why do people put off doing their Will?
At the start of the COVID-19 outbreak, Attwood Marshall Lawyers were inundated with enquiries from existing clients and members of the public all wanting to urgently change their Will or write their Will. The easing of restrictions has seen those levels of enquiry return to normal, but the fact remains that over 50% of the population either do not have a Will at all, or have not updated their Will for many years. While it was pleasing to see people getting their Wills done, or updating them, because of the onset of the COVID-19 pandemic, it is also unfortunate that it took a global pandemic to spur people into action to prioritise getting their Wills in order. Many people feel that they are somehow tempting fate by drafting their Will. The reality is everyone should have a Will no matter what their age, circumstance or health status is. It is something that many people put off doing, particularly if their family circumstances are complicated or there are difficult family issues that may come up during the Will-making process.
How Attwood Marshall Lawyers can help
At Attwood Marshall Lawyers we have one of the largest Wills & Estates departments in South East Queensland, 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 that we can offer clients the best advice and assistance when coming to terms with the provisions of their Will and their overall estate planning strategy. Many clients are apprehensive about seeing a lawyer to do their Will and discuss estate planning for their families. We can confirm that all clients are very relieved and surprised at how relatively easy it is to have these complex and difficult issues dealt with.
Our goal is to guide you to help protect your assets and make sure that they end up with the people that you want them to. We can also help you plan your estate so that claims against the estate down the track are prevented, or minimised.
Beat the border-crossing nightmare
Although the Queensland and New South Wales border is about to re-open on July 10, the reality is that the closure of the Victorian border has made the crossing between NSW and QLD worse. This is due to border checkpoints carefully checking all vehicles to see if there are any people who have a Victorian connection. This has resulted in long waiting times and queues at checkpoints.
Our offices are conveniently located either side of the border at Kingscliff in northern New South Wales, at Coolangatta and Robina Town Centre in Queensland (as well as a Brisbane office). We have experienced staff at all offices ready to consult with clients concerning their Wills and estate planning needs. This enables any NSW residents to easily visit our Kingscliff office, and likewise for our QLD clients and customers to attend either our Coolangatta, Robina Town Centre or Brisbane offices. Most initial consultations are still carried out by telephone or video conferencing, but it is very important when dealing with these types of matters to see the clients face-to-face and provide appropriate advice in relation to their estate planning.
We can travel to you or have a video conference
In the event that people are unable to travel from their homes, nursing home or other venue due to health related or other reasons, an important change to the signing and witnessing of Wills has been brought in by both states to deal with current restrictions. The legislation provides that Wills can be signed and witnessed using video conferencing technology. We do not believe this is the best way to provide advice and have Wills and other important documents signed, but it is an available option should the circumstances require this. Our experienced staff regularly attend people’s homes, nursing homes and hospitals in order to sign important and urgent documents, such as Wills and Enduring Powers of Attorney.
Never a better time to get your Will and Enduring Power of Attorney documents done
The upside of all of these changes and the convenient location of our offices means that there has never been a better time for you to “bite the bullet” and have your Will done or updated. Another very important and often overlooked document is an Enduring Power of Attorney. In some ways an Enduring Power of Attorney is more relevant than a Will because we are much more likely to contract an illness or suffer an injury which renders us incapable of physically signing documents, or we may lose our mental capacity either temporarily or permanently. It is very important that you have trusted attorneys appointed for you to step into your shoes in the event that you suffer some form of injury or illness which renders you mentally incapacitated.
For a complimentary 30-minute estate planning review with one of our dedicated Estate Planning lawyers, book your appointment by contacting Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email [email protected] or phone 1800 621 071.
 
Read more of our latest blogs from the Wills & Estates team:
Appointing Guardians & Attorneys – by Emily Edmonds
Coronavirus fears drive people to get their Wills and Power of Attorneys done – by Angela Harry
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With each state and territory taking a different approach to introducing the new Commercial Leasing Code of Conduct in the wake of COVID-19, Commercial Litigation Lawyer, Georgia Taylor, discusses Queensland’s approach to the regulations.
 
On 28 May 2020, the Queensland Government passed regulations which legislate the principles of the National Cabinet Mandatory Code of Conduct (Code) announced by the Federal Government on 6 April 2020. The Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (QLD Regulation) has been enacted pursuant to the powers of the COVID-19 Emergency Response Act 2020 (Act).
The Regulation has taken the Queensland Government over five weeks to put into place since passing the COVID-19 Emergency Response Bill 2020 on 22 April 2020. Unfortunately for most Queenslanders, this code is too little too late. Struggling tenants and landlords were left with an ambiguous code, and little knowledge of when (and how) any dispute resolution procedure would come into play. While the moratorium on evictions has assisted tenants and provided some surety, it hasn’t stopped the bills piling up and leaving affected parties in angst. Queensland was the second last of the states and territories to legislate these regulations.
Purpose of the Regulation
The purpose of the QLD regulation is to mitigate the financial effects of the COVID-19 pandemic on tenants and landlords under ‘affected leases’ by giving effect to the good faith leasing principles set out in the Code and to establish a process for any disputes.
What is an ‘Affected Lease’ covered by the QLD Regulation?
The QLD Regulation applies to leases covered by the Code, with some exceptions. The covered leases are retail and commercial leases to tenants with a turnover of less than $50 million and who qualify for the JobKeeper subsidy. The excluded leases are some farming businesses and certain leases under the Land Act 1994 (QLD) from a government entity within the meaning of the Land Regulation 2009 (Qld).
What is the ‘Response Period’?
Response Period means the period:
(a) starting at the beginning of the day on 29 March 2020; and
(b) ending at the end of the day on 30 September 2020.
Obligations for Negotiating Outcomes
The QLD Regulation prescribes obligations and places restrictions on both tenants and landlords, referred to as a Prescribed Actions:
QLD have defined a prescribed action as:

recovery of possession
termination of a lease during the Response Period for non-payment of rent and outgoings (confirming the moratorium).

The process for commencing negotiations between the tenant and landlord can be summarised as follows:

One party gives a notice to start negotiations (the initiator);
Both parties must as soon as practicable make full and frank disclosure of relevant information;
The landlord has thirty days to make an offer to the tenant. The thirty days starts from when both parties have provided the full and frank disclosure of relevant information; and
The parties must negotiate in good faith.

The disclosure that a tenant is required to make to the landlord is not burdensome, however, it does include financial statements about the turnover of the tenants business, evidence of eligibility for Job Keeper payments, and also steps the tenant has taken to mitigate the effect of COVID-19 on its business, to name a few.
The landlord must:

offer a rent reduction which waives at least fifty percent of the portion of the rent that has been reduced;
consider all circumstances of the lease including the reduction in turnover for the premises; and importantly
consider the capacity of both parties to be able to financially manage the effects of the COVID-19 emergency.

A reduction in rent and any conditions to the reduction, may be given effect by a variation to the lease or another agreement that gives effect to the matters agreed upon.
Dispute Resolution Process
The QLD Regulation provides a dispute resolution process (which was referred to in the Code) if the parties fail to reach an agreement. The first step in the dispute resolution process is a mediation. A party to the affected lease must give a Dispute Notice to the small business commissioner. It is important to note that the commissioner may dismiss the dispute if the parties have not acted in good faith or the commissioner considers the dispute to be frivolous or vexatious.
Once the small business commissioner has confirmed the party’s eligibility to participate in a mediation, a mediator will be appointed and a notice including the details of the mediator, time and date of the mediation will be conducted. It will be held no less than 7 days after the issuance of the dispute notice.
If the parties are unable to resolve the dispute through mediation, the matter can be taken to the Queensland Civil and Administrative Tribunal (QCAT) for resolution. QCAT have the necessary powers to make orders to give effect to the expectations set out in the Code. It is important for parties to note the time limitations imposed by QCAT to make an application as well as the effect of the binding nature of any orders made. You should seek independent legal advice in relation to the strict time limitations.
Your next steps
No matter your current position, if you qualify for relief under the QLD regulation, it is important that you are proactive and take the necessary steps explained to commence negotiations with your landlord or tenant.
The legislators have made allowances for those parties who can’t agree and who will need a third party to enforce their respective rights. With likely thousands of eligible applicants, many of those under financial strain, we expect a high volume of cases to be referred to the dispute resolution process. Likely to have some growing pains, the QLD dispute resolution process will be stretched, so it’s important to start your negotiations as soon as possible.
To be ready for your negotiations, you should have available (where applicable):

A copy of the lease;
Job Keeper acceptance;
Proof of turnover;
Financial records proving downturn in turnover (monthly would be appropriate);
Proof of government and financial institution concessions (e.g. mortgage stops and land tax deductions);
Proof of payments made from the date of the pandemic.

How can Attwood Marshall Lawyers help?
The QLD and NSW Regulations brings some much-needed certainty for tenants and landlords. The Regulation provides a pathway for parties to negotiate in good faith and move forward in uncertain times. However, our experience is that both landlords and tenants are struggling to properly understand the legislation and there are many grey areas in how all issues are to be resolved. It is important that both sides understand the impact COVID-19 has on all concerned and do their best to achieve an outcome that everyone can live with. All businesses and tenancies are different, as are the leases involved, and many will have their own unique issues. There is no “one size fits all” solution.
Want to know what is happening across the border? See our blog on the NSW legislation here.
Whilst there are restrictions on legal representation during the formal processes, it is imperative for parties to obtain their own legal advice and guidance. Our experienced Commercial Litigation lawyers can provide you with expert independent legal advice about your specific circumstances as a tenant or landlord. Attwood Marshall Lawyers can review your lease, negotiate on your behalf, settle disputes or take legal actions if your rights are compromised.
For more information or to discuss your circumstances, please contact our Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email [email protected] or free call 1800 621 071.
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The Commercial Leasing Code of Conduct was introduced to help balance the interests of landlords and tenants and provide relief to those suffering financial stress as a direct result of the COVID-19 pandemic. Commercial Litigation Lawyer, Georgia Taylor, discusses the approach NSW has taken.
 
Each state and territory have taken a different approach to introducing the new legislation which may have caused landlords and tenants some confusion. Here’s what you need to know about the Regulations for the COVID-19 Commercial Leasing Code of Conduct for New South Wales.
NSW legislated the National Cabinet Mandatory Code of Conduct (the code) on 24 April 2020 (soon after the Prime Minister’s announcement) as the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW Regulation). The NSW Regulation was one of the first to pass through the State and Territory parliaments, a welcomed surety for those affected by the COVID-19 pandemic.
Who qualifies for relief?
The NSW government defined a lessee as an “Impacted lessee” for the purposes of the NSW Regulation, if a lessee qualifies for the Job Keeper Scheme and had a turnover of less than $50 million in the 2018/2019 financial year, keeping in line with the Code.
Importantly, the NSW Regulation defines a “commercial lease” as:

a retail shop lease (excluding any lease entered into after the commencement of the NSW Regulation);
a lease under the Agricultural Tenancies Act 1990; or
a commercial lease within the meaning of Schedule 5 to the Conveyancing (General) Regulation 2018.

If your lease falls within any of these categories, your lease may be protected by the NSW Regulation.
What is the ‘prescribed period’?
The prescribed period means the period ending six months after the NSW regulation commences. The NSW Regulation commenced on 24 April 2020; therefore, the prescribed period will end on 24 October 2020.
What restrictions apply?
A landlord must not take any prescribed action against a lessee for:

Failure to pay rent;
Failure to pay outgoings; or
Not opening the business during the hours specified in the lease.

The NSW Regulation also prescribes, pursuant to the Code, that:

Rent under a prescribed lease must not be increased;
A landlord must not, during or after the prescribed period, take any prescribed action regarding an increase in rent;
if the lessee is to pay a fixed rate for land tax or other statutory charge (i.e. council rates), and that amount is reduced by way of a concession to the landlord, the lessee is exempt from that fixed rate to the extent of the reduction provided to the landlord.

What is a ‘prescribed action’?
It’s important to understand what a prescribed action is so that an affected lessee knows what a landlord can and cannot do during the prescribed period. NSW have defined a prescribed action as:

eviction of the lessee from premises or land the subject of the commercial lease,
exercising a right of re-entry to premises or land the subject of the commercial lease;
recovery of the premises or land,
distraint of goods,
forfeiture,
damages,
requiring a payment of interest on, or a fee or charge related to, unpaid rent otherwise payable by a lessee;
recovery of the whole or part of a security bond under the commercial lease,
performance of obligations by the lessee or any other person pursuant to a guarantee under the commercial lease,
possession,
termination of the lease, or
any other remedy otherwise available to a lessor against a lessee at common law or under the law of this State.

Obligations to renegotiate rent and terms of commercial lease
An impacted lessee may request the other parties to that lease renegotiate the rent payable and any other terms of the commercial lease. The other parties and the impacted lessee must renegotiate a lease in good faith.
Whilst the NSW regulation does not specifically legislate the requirements of the Code, it notes that parties must reference leasing principle numbers 3-5, 7-10 and 12 during negotiations. These parts of the Code specify that:

Rent is to be reduced on a case-by-case basis, based on the reduction of the lessee’s trade during the prescribed period;
A landlord must offer a reduction in rent in the form of waivers and deferrals of up to 100% of the amount payable under the lease;
Rental waivers must be no less than 50% of the reduction received by the lessee;
Payment of rental deferrals by the lessee must be amortised over the balance of the lease and/or for a minimum period of 24 months, whichever is greater.

Dispute resolution
NSW has extended the provisions of Part 8 of the Retail Leases Act 1994 (Retail Leases Act), (dispute resolution provisions) to include disputes under the NSW regulation. Queensland has taken a different approach by developing a new system to deal with disputes under the QLD regulation.
The Retail Leases Act administers a mediation process before a mediator of a retail tenancy dispute. This process must be undertaken before proceeding to any Court that is able to hear a dispute of its nature.
If you cannot come to an agreement with your lessee or landlord regarding a reduction in rent under the new NSW Regulation, you can make an application to the registrar of retail tenancy disputes for the purposes of undertaking a mediation with the NSW Government Small Business Commissioner’s office.
Your next steps
No matter your current position, if you qualify for relief under the NSW regulation it is important that you are proactive and take the necessary steps to commence negotiations with your landlord or tenant.
The legislators have made allowances for those parties who can’t agree and who will need a third party to enforce their respective rights. With likely thousands of eligible applicants, many of those undoubtedly under financial strain, we expect a high volume of cases to be referred to the dispute resolution process. To ensure your matter is dealt with quickly, it is vital you initiate the steps as soon as possible.
To be ready for your negotiations, you should have available (where applicable):

A copy of the lease;
Job Keeper acceptance;
Proof of turnover;
Financial records proving downturn in turnover (monthly would be appropriate);
Proof of government and financial institution concessions (e.g. mortgage stops and land tax deductions);
Proof of payments made from the date of the pandemic.

How can Attwood Marshall Lawyers help?
The QLD and NSW Regulations brings much-needed certainty for tenants and landlords. The Regulation provides a pathway for parties to negotiate in good faith and move forward in uncertain times. However, our experience is that both landlords and tenants are struggling to properly understand the legislation and there are many grey areas in how all issues are to be resolved. It is important that both sides understand the impact of COVID-19 on all concerned, and do their best to achieve an outcome that everyone can live with. All businesses and tenancies are different, as are the leases involved, and many will have their own unique issues. There is no “one size fits all” solution.
Want to know what is happening across the border? See our blog on the QLD legislation here.
Whilst there are restrictions on legal representation during the formal processes, it is still imperative for parties to obtain their own legal advice and guidance. Our experienced property and commercial lawyers can provide you with expert independent legal advice about your specific circumstances as a tenant or landlord. Attwood Marshall Lawyers can review your lease, negotiate on your behalf, settle disputes or take legal actions if your rights are compromised.
For more information or to discuss your circumstances, please contact our Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email [email protected] or free call 1800 621 071.
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Many people are unaware that divorce has the effect of revoking parts of a Will. Wills & Estates Senior Associate, Lucy McPherson, discusses how changes in your relationship can affect your Will and how to avoid estate litigation from arising.
 

Attwood Marshall Lawyers · Lucy McPherson – Divorce And Recoupling
How does divorce affect your Will?
How a divorce affects your Will depends on which state or territory you reside. In some states, divorce will automatically render your Will invalid, and revoke particular parts of it.
The parts of your Will that can be revoked if you divorced, include:

A gift to your former spouse made by a Will in existence at the time of the divorce
Any appointment of your former spouse as Executor or Trustee of your estate, or Guardian of your minor children

This can be mitigated against if you provide specific contrary intentions that are clear in your Will.
If you divorce and then recouple, your new spouse has certain rights in relation to your estate, and this may not be something that you intended. It’s always best to seek specialist legal advice after a divorce in relation to your Will and how these changes may affect your situation. Your lawyer will be able to review your Will and see where any changes are necessary.
What happens if a separating couple become estranged, but do not formalise their divorce?
This is something that we see far too often. Unlike divorce, marriage separation does not have an effect on your Will. This means any assets that are gifted to your former partner in your Will would still be distributed to them if you die.
Understandably, this situation is not desirable for most couples who have recently split up and are estranged. It’s advisable to update your Will as soon as possible after separating from a spouse. Particularly when you consider the time that can lapse between separation and obtaining a formal divorce order. The period of separation that occurs prior to the divorce order and after the separation is one of the most important times to make sure your Will reflects your change in circumstance.
If you fail to update your Will after separation, and you pass away, your estranged spouse may inherit your property that you previously left to them.
One reason why we see this happen so often is because upon initial separation, there is often one spouse holding onto hope that they will reconcile the relationship. Because they are not ready to accept that the separation is final and that they are heading to divorce, they hesitate taking the step to update their Will. They may simply not be ready to acknowledge their change in circumstance.
After a separation, there is a great deal of emotion, among many other things, going through a person’s mind which tends to take priority over updating their Will. However, it is important to be cognisant of these issues because the end result could be catastrophic.
When it comes to recoupling, and there is a blended family situation, what happens then?
Depending on which state you reside in, as the law differs between New South Wales and Queensland, if your new spouse has children, those step-children may be eligible to bring a claim on your estate in the event that you die.
In QLD, under the legislation, step-children are eligible to bring a claim on an estate.
This is not strictly the case in NSW, however, there is a certain category that step-children often fall under if they are able to demonstrate they were a member of the same household as the deceased person and that they were dependent on the deceased person at a particular time during their life.
Blended family situations become quite complex because of these issues, including the right step-children have for making a claim on an estate. A Will drafter needs to be aware of these issues and the fact that those types of claims may be bought on the estate if they’re not adequately provided for.
Can a child from a previous relationship challenge the estate?
A child of a deceased person is eligible to contest a Will in both NSW and QLD, regardless of whether that child is from the first, second, or third marriage, whatever it may be. As long as the child can prove they have not adequately been provided for and they are able to demonstrate they have a significant level of financial need and that they should have been recognised under a Will, those claims tend to be successful.
This needs to be kept front of mind when drafting your Will. If you don’t provide for a child from a previous marriage, that child may bring a claim on the estate at a later time.
What are other reasons may an estate be challenged?
There are many different reasons to contest a Will. We find that the two main types of Will contests are:

Family provision claims (as mentioned above, in the example where a child from a previous marriage may have been left out of a Will)
A challenge to the validity of the Will itself, potentially on the grounds of undue influence, lack of testamentary capacity, or forgery and fraud. These challenges arise in situations where there is some sort of circumstance that calls into question the validity of the document and how that document came into place.

How can Attwood Marshall Lawyers help prevent estate litigation?
A highly skilled estate planning lawyer looks at your overall circumstances and can employ tactics in order to mitigate against litigation occurring in relation to your estate. At Attwood Marshall Lawyers, we take into account your specific personal circumstances, such as those around having a blended family, or how your estates may be structured, any significant funds held in a superannuation, or properties that may be jointly held. By considering all of these circumstances, we can do our best to make sure the end result is as you wish it and try to avoid litigation arising.
Attwood Marshall Lawyers have a dedicated team that practice exclusively in this area. For enquiries concerning Wills & Estates, contact Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email [email protected] or free call 1800 621 071.
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Attwood Marshall Lawyers, Wills & Estates Lawyer, Emily Edmonds, discusses the role Guardians and Attorneys play if you lose capacity.
 

Attwood Marshall Lawyers · Attwood Marshall Lawyers – Solicitor Emily Edmonds – Appointing Guardians And Attorneys
Appointment of Enduring Guardian and Enduring Power of Attorney documents
In New South Wales, there are two documents that can appoint people to manage your affairs in the event you lose capacity – an Enduring Power of Attorney which deals with financial matters, and an Appointment of Enduring Guardian which deals with health and lifestyle issues.
If you lose capacity, a Guardian is the person who makes decisions about where you will live, including which nursing home you will live in if necessary, and what personal services and health care you will receive. They can also consent to and refuse medical treatment on your behalf. A Guardian will be able to access your confidential medical information such as medical records and test results.
An Attorney is the person who manages your assets and finances. They will have the power to access your bank accounts, sign contracts to sell property, and deal with government departments such as Centrelink on your behalf.
In Queensland, there’s a single document used to appoint people to this role which is the Enduring Power of Attorney. The people you appoint are referred to as your Attorneys. This document deals with both medical and financial issues.
With both NSW and QLD documents, you can appoint the same person or people to act for both medical and financial matters or you can appoint different people to undertake each of the roles.
If you live on the border, how do you decide which State to register your documents?
Attwood Marshall Lawyers are experienced in preparing both NSW and QLD documents. Your lawyer will look at where you live and where the majority of your assets are held. From there it can be decided which documents will be most suited.
At what stage of life should someone consider appointing a Guardian and an Attorney?
People often make the mistake of leaving it until it is too late to appoint a Guardian or Attorney. An accident can happen to anyone at any time. For this reason, it is recommended that everyone should have these documents in place. For those with children, or a property, these elements alone are enough to encourage anyone to ensure their legal affairs are in order.
Appointing a Guardian and/or an Attorney can be organised at the same time as writing a Will.
What needs to be considered when choosing a Guardian and an Attorney?
Deciding who you want to appoint can be a very difficult task. Normally, if you are married or in a de facto relationship, you will appoint your spouse to act solely. But for people who are single or are in a relationship with someone who doesn’t have the ability to act as an Attorney or Guardian, it can be quite tricky.
The main thing you need to consider is who do you trust. It’s not simply a matter of thinking someone will do an “alright” job, because if these documents come into effect, this person, or these people, are going to have complete control of your life. You need to make sure you’re choosing someone who you trust implicitly and who you know will absolutely act in your best interests.
Another issue is should you appoint one person or two? Generally speaking, it is safer to appoint two attorneys to act jointly so that they can keep an eye on each other and make sure nothing is done illegally. You need to be careful the two people you appoint are not likely to act in concert to possibly misappropriate funds for their own use. Sometimes, it may be appropriate to appoint an independent co-attorney who is a professional (e.g. an accountant or lawyer).
Another very important, but often overlooked issue is whether the appointment should be immediate or only after you have lost legal or mental capacity. Sometimes the issue of whether you have lost mental capacity can be very complex and disputed. Most couples appoint each other on the basis that the appointment is ‘immediate’.
Can you appoint multiple adult children for this role?
Whether it is appropriate or not to appoint all children depends on the situation and the family dynamics. For example, if you have three children that get along well, all live in close proximity, and you’re confident they would be able to act harmoniously together, then having all three appointed might not be a problem. You must keep in mind that if you have appointed all three children to act jointly, then they would all need to be readily available to make important decisions or sign documents.
If however you had three children, and one child didn’t get along with the others, then it would be unwise to appoint all three to act together. In this scenario, it’s likely that instead of being able to make important decisions quickly on your behalf – your family members would be more occupied with fighting amongst themselves. This is not a situation you want to be in when you’re lying in a hospital bed needing someone to act quickly for you.
In this scenario, you may be better to consider an independent attorney or co-attorney to act with one of your adult children.
How does Attwood Marshall Lawyers help clients choose who to appoint?
We see many clients who come in and they’re absolutely torn about who they should appoint to be their Guardian or Attorney. It is a tough decision, but we try to remind our clients that they need to make themselves the priority; it is not about trying to keep everyone else happy. We work through the emotional issues first, try to put them aside, and look at the matter objectively. We discuss examples of real-life scenarios to help our clients better understand the function of each role and the power that their Guardian or Attorney would have. For example, we identify who they would be comfortable with accessing their bank accounts. By the end of the process we usually have a very good idea of who the best person is to appoint as Guardian or Attorney.
In a worst-case scenario – what would it look like if you chose the wrong person?
Guardians and Attorneys come into power when you have suffered loss of capacity. If you decide to appoint someone who you know probably isn’t the best choice, you can end up in all sorts of trouble.
A worst-case scenario could be if you’ve been involved in an accident, you’ve suffered a brain injury, and you no longer have capacity to manage your own affairs. If you have appointed someone who does not have your best interests at heart, they can access you bank accounts, sell your property and put you into a nursing home – and they can do all of these things without your approval.
What can you do if you want to change your Guardian or Attorney?
If you have documents in place and you want to change who you have appointed, then this needs to be done properly. We see a lot of clients who think that they can simply rip up their Enduring Power of Attorney or Appointment of Enduring Guardian documents and that’s the end of it, but it’s not.
For someone to be removed as an attorney or guardian, a formal Revocation needs to be prepared and signed. This then needs to be sent to the person who you no longer want as your Attorney or Guardian. If you don’t serve this Revocation on them, then they can still use the documents if they have copies, even if you don’t want them to be able to.
How can Attwood Marshall Lawyers help?
The most important thing to remember is that in most cases, Guardians and Attorneys come into power when you have lost capacity. There are also Enduring Powers of Attorney where the appointment is ‘immediate’. This means that the attorney is authorised to act and sign for you from the moment it is signed. These people must be reliable and trustworthy as he/she or they can do whatever you can do legally on your behalf (including walking into your bank and withdrawing all of your money).
Attwood Marshall Lawyers are trained and experienced in working with clients to determine who is best for this role.
It is possible to change your Attorney or Guardian if you are not comfortable with who you have chosen. If you wish to revise any documents you currently have in place, you should urgently seek legal advice on how to do so. Alternatively, you can organise these documents at the same time as completing your Will.
Read more: Increase in requests for Wills and Enduring Power of Attorney
Read more: Major changes to Enduring Power of Attorney, Enduring Guardian and Advanced Health Care Directive laws
Attwood Marshall Lawyers have a dedicated team that practice exclusively in this area. For enquiries concerning Wills & Estates, contact Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email [email protected] or free call 1800 621 071.
 
 
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A NSW Police officer has had to fight for eight years for her right to a Total Permanent and Disability (TPD) payment after suffering significant psychological trauma, known as “post-traumatic stress disorder” (PTSD). The case shows the legal technicalities in making such claims, writes TPD Senior Paralegal, Amy Lewis.
 
A former policewoman who suffered PTSD as a result of being exposed to a range of confronting and horrific circumstances while on the job, has been awarded a $750,000 payout under a Total and Permanent Disability (TPD) claim.
Rebecca Sandstrom took her Super fund, First State Super and their insurer, Metlife, to the NSW Supreme Court after her TPD claim was denied five years ago.
Ms Sandstrom, who was stationed in Sydney’s west in Bankstown, developed chronic post-traumatic stress disorder following several horrific cases she worked on over the span of three years.
Earlier this year, in a Supreme Court decision of His Honour Justice Slattery, Ms Sandstrom received a judgment in her favour for TPD benefits, with the claim taking over eight years to be finalised.
Background of Events
Ms Sandstrom was a young recruit when she joined the NSW Police Force in 2005 at the age of 22. In the following years of service, Ms Sandstrom was exposed to a range of confronting situations including attending at the scenes of dead and dismembered bodies as well as assisting persons who had received grievous personal injury.
In 2009, she was part of a team sent to a crime scene in Pheasants Nest, where a woman’s dismembered body had been discovered.
There were also other incidents where she had attended confronting crime scenes involving self-harm.
In 2010, she witnessed one of her colleagues being fatally shot. It was at this stage Ms Sandstrom began to experience symptoms of post-traumatic stress disorder (PTSD) which resulted in her being placed on sick leave. Ms Sandstrom has not returned to employment since 8 September 2010.
On 7 July 2011, Ms Sandstrom was formally discharged from the Police force on medical reasons.
The claim process and legal proceedings
On 1 August 2011, Ms Sandstrom initiated a TPD claim through her super fund, First State Super on the basis of PTSD and related psychological conditions. The claim was lodged with Metlife, being First State Super’s insurer at the relevant time. After four years, Metlife rejected the claim in mid-2015.
Ms Sandstrom commenced proceedings in the Supreme Court on 7 October 2015 noting that both First State Super and Metlife breached their duty of utmost good faith dealing with her claim and failed to act reasonably to form an opinion as to whether not she met the definition of TPD.
Metlife maintained that they declined the claim as the medical evidence did not support that Ms Sandtrom was “unlikely ever” to engage in work in any occupation she was qualified for by way of education, training and experience.
Metlife argued that given Ms Sandstrom’s young age, it could not conclude she would be incapable of returning to work until her likely retirement age.
The proceedings were conducted over nine days before the Supreme Court.  This involved Ms Sandstrom’s legal representatives arguing nine grounds on why Ms Sandstrom’s claim should be successful. Interestingly, when the Defendant cross-examined Ms Sandstrom, many of the questions concerned Facebook content which Ms Sandstrom had posted.
READ MORE: TPD: Can insurers use your social media posts as evidence? 
Result
After hearing the matter, His Honour Justice Slattery ordered that Ms Sandstrom is, and was, totally and permanently disabled within the meaning of the insurance policy. His Honour ordered First State Super to pay the relevant insurance amount (over $750,000) with the issue of costs and interest to be heard on a later date.
This is not the first case involving Police Officers who have been rejected for TPD benefits. Most notably, First State Super (who is the predominate super fund for NSW Police Officers) and Metlife have been involved in several court cases with Police Officers being claimants – Shuetrim v FSS Trustee Corporation; Hellessey v MetLife Insurance Ltd and Gavan v FSS Trustee & Metlife.
The case is a great win for police officers generally and recognises the difficult work-related stressors that first responders experience on a daily basis. Unfortunately, many Super funds and insurance companies deny liability on genuine claims which forces the injured person to engage lawyers and go through the court process to obtain justice.
The Super Funds and 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.
Hopefully, this case will be a salient lesson to the Super funds and insurers that this conduct will not be tolerated
How can Attwood Marshall Lawyers help with a TPD claim?
Attwood Marshall Lawyers are highly experienced in TPD claims for our frontline emergency workers. If you are considering making a claim for TPD benefits, it is recommended you seek legal advice to ensure the best possible outcome. Each insurance policy is different and TPD definitions can be a complex area of law when making a TPD claim.
Read more by Amy Lewis:
TPD claims – watch out for definitions!
What is a TPD benefit? How do I make a TPD claim?
Types of life insurance and compensation claims
Why accountants must never give advice on TPD claims
For any enquiries on making a TPD claim for compensation, contact Compensation Law Department Manager Kelli Costin on 07 5506 8220, email [email protected] or free call 1800 621 071.
 
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If a client has suffered injury or ill health, their first port of call will often be to ask for advice about making a Total and Permanent Disability (TPD) claim. A TPD insurance product may be attached to your client’s Superannuation policy or be owned directly by your client from an insurance company. Your client may ask you to make a TPD claim on their behalf.
There are many legal pitfalls for you to consider before making a claim. This blog will look at the complex legal area of TPD ‘definitions’. An experienced legal team will be able to strategically pre-empt any legal issues surrounding TPD definitions, for your and your client’s best chance at a successful claim.
RELATED: Why Accountants and Insurance Brokers Must Never Give Advice on TPD Claims
What are TPD definitions?
TPD is insurance that pays out a lump sum to a client if that client is defined as having become total and permanently disabled or is unable to work again. This status is ‘qualified’ by the client’s insurer, who has their own ‘definition’ of TPD. How TPD is defined in you client’s policy will directly affect their chance of receiving a benefit. If a claim incorrectly identifies a definition, the claim will be rejected.
TPD ‘definitions’ include:

Any Occupation

This pays a lump sum if your client is permanently disabled and unable to work in their own occupation or any occupation to which they are suited by education, training or experience.

Own Occupation

This pays a lump sum if your client has become permanently disabled and is unable to work in their own occupation. This is the most expensive form of TPD insurance because the terms are very specific, and a payout is more likely.

Activities of Daily Living

If your client has been unemployed in the lead up to their disablement; has been employed casually or has reached maximum age, in addition to not being able to return to work, the insurer may also impose the “activities of daily living” definition. If an ADL definition applies, these types of claims can be extremely difficult.
‘Activities of Daily Living’ can mean:
(i) bathing – bathing and showering;
(ii) dressing – dressing and undressing;
(iii) feeding – eating and drinking;
(iv) mobility – mobility, to the extent of being able to get in and out of bed or a chair, and move from place to place without using a wheelchair;
(v) toileting – the ability to use a toilet.
Legal advice is highly advised for this definition as it is the hardest form of TPD insurance to claim on.
How is TPD defined inside a super policy?
Superannuation policies use an ‘any occupation’ definition of TPD, in accordance with the Superannuation Industry Supervision Act. A claim will only be paid if a client suffers a health issue which prevents them from engaging in employment which they’re qualified for by education, training or experience. Some super funds will have other conditions specified for their TPD claim which only an experienced TPD expert can assist with.
Why is it important to understand TPD definitions?
Varied definitions between insurers are the number one reason for claim disputes. The definition may look simple however hidden elsewhere in the policy may be a minimum working hour requirement or age limitation.
TPD Definitions: Case on point
FACTS: Attwood Marshall Lawyers recently assisted a TPD claimant with a policy where our client was 59 at the original date of injury, returned to light duties and then fully ceased employment after he turned 60.
POLICY DEFINITION: The definition in our client’s policy stipulated that upon reaching 60 years of age their definition changed to an ‘Activities of Daily Living’ definition, and they must be able to prove they are totally and irreversibly unable to perform, without the assistance of another adult person or suitable aids, at least two of the Activities of Daily Living to claim TPD benefits.
LEGAL ACTION: Proving this definition was extremely difficult. Attwood Marshall Lawyers experienced legal team will argue that the definition at the time of the injury (when the client was 59) is applicable.
How can Attwood Marshall Lawyers help?
TPD definitions is but one complex area of law relevant to when making a TPD claim. Some TPD policies will require your client to receive ongoing advice of a specialist, or rehabilitation. Other policies will have special exclusions for pre-existing medical conditions. Insurance companies and superannuation trustees can sometimes be difficult to deal with if you are not familiar with the process.
The myriad of other legal issues to be considered when making a TPD claim can be tended to by an experienced compensation law team with links to experienced TPD medical professionals. Attwood Marshall Lawyers have a dedicated TPD team who work purely on superannuation and disability insurance claims. We are ready to help you and your client make a TPD claim today.
Got a legal question? Contact Amy Lewis on her direct line: 07 5506 8252 or Mobile: 0400 440 309.
More articles by Amy:

Types of life insurance and how to make a claim for life insurance
What is a TPD benefit? How do I make a TPD claim?
TPD claim: Can insurers use your social media posts as evidence?

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A significant proportion of the wealth of people today is held in the superannuation environment and it is not uncommon for superannuation to be an individual’s most valuable asset. Whilst there is clearly a substantial amount of wealth in the superannuation environment there is, unfortunately, a significant lack of planning and understanding by many members (and some advisors) in relation to what happens to superannuation upon death and who can be nominated as a beneficiary.
Beneficiary nominations for superannuation are relatively new in the context of succession planning and the law in this area continues to evolve. There are many things that can go wrong which may potentially invalidate a beneficiary nomination, with one of the most common being the nomination of a beneficiary who cannot benefit under superannuation law.
READ MORE: Binding Death Nominations – life and death paperwork!
We are currently dealing with a matter that involves a financial planner who is facing legal action after giving incorrect advice to a member on the completion of a binding death nomination for the member’s superannuation death benefits.  The result of the incorrectly completed nomination is that the deceased member’s intended beneficiary has missed out on the superannuation payment and is now facing an expensive legal action to recover the funds that were intended for them, and the financial planner is facing a negligence suit.
Unfortunately, the incorrect completion of beneficiary nominations is all too common, often with devastating financial impact, but it is one that can be avoided with the appropriate legal advice.
How is Superannuation distributed upon the death of a member?
Superannuation is no longer a new concept to many Australians, however, there are still misconceptions about what happens to your superannuation after death. The most common misunderstandings we see is the assumption that:-

Superannuation is automatically included in the Will;
You can nominate any beneficiary directly with your superannuation fund to receive your benefits.

Unfortunately, both assumptions are incorrect and can lead to costly errors.
The treatment of superannuation upon a member’s 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 a member’s account when they die will depend upon the terms of the trust deed governing the superannuation fund, the superannuation law, and the terms of any binding or non-binding beneficiary nomination that has been made with the superannuation fund.
This means that a member’s superannuation entitlements may not be treated in the same way as directions given in their Will, and they should consider giving directions to the superannuation fund as to how they want their superannuation entitlements paid in the event of death.
Who can be a beneficiary of the superannuation death benefits?
For a beneficiary nomination to be valid one of the requirements under the superannuation law is that the person(s) mentioned in the nomination must either be:

The member’s ‘legal personal representative’– Legal personal representative in this context is defined to mean the executor of the Will or administrator of the estate of a deceased person. Where the legal personal representative is nominated the superannuation benefits would be under the terms of the member’s Will; or

The member’s ‘dependant’ – Dependant in this context is defined to mean:-

the spouse of the person: Spouse is given a wide definition that includes de facto and same sex relationships, registered or otherwise.
any child of the person: 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: Interdependency relationship 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.

Clearly the superannuation definition of dependant has restrictions on who can benefit. 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 member’s benefits.
Do you need legal advice for a Superannuation Beneficiary Nomination?
It is important to seek legal advice from a qualified solicitor suitably experienced in estate planning, to provide guidance on the making of a beneficiary nomination.  It is also important that the solicitor is in contact with the member’s financial advisor and accountant so that the member is provided with the necessary advice to make an informed decision on the structure of the nomination.
Not only is it important to obtain advice on who can receive the member’s benefits, but also advise regarding who should receive the benefits.
Choosing the appropriate beneficiaries is important. An ill-considered choice can give rise to potentially avoidable problems. Beneficiary nominations are often made as part of the framework of the member’s estate planning needs and are usually considered in the circumstances of:-

A desire to ensure the most tax effective structure for succession;
Protection of the superannuation proceeds for the intended beneficiaries;
The potential for a claim to be made on the member’s estate
A way to make provision for beneficiaries who are not ‘dependants’ under superannuation law.

If legal advice is overlooked there may be a devastating financial impact resulting in the superannuation death benefits not ending up with the intended beneficiary.
Can a financial planner or accountant be sued for incorrectly advising on a nomination?
There is an argument that the preparation of a beneficiary nomination (usually in the form of a binding nomination) involves the provision of legal services. While advisors may claim that they are not providing legal services (a moot point considering the legal nature of the nomination), ultimately the adviser faces the risk of a damages claim by the client if a legal challenge arises. We are seeing an increase in such disputes arising, particularly in relation to beneficiary nominations and death benefit disputes.
Recently, a client attended our firm having been the nominated beneficiary under a ‘non-lapsing binding’ death nomination as an ‘interdependent’. This nomination was completed by the deceased’s financial planner who provided the deceased advice on the nomination. Unfortunately for the deceased and the intended beneficiary,  that beneficiary did not qualify with the legislative  definition of ‘interdependent’. It was very clear on the facts of this case that at no time was the proposed beneficiary ever a person who would fall into the category of ‘interdependent’. The nomination was declared invalid and the death benefits paid elsewhere. This meant our client did not receive the benefit, as the deceased intended, and will now be pursuing an action in negligence.
How can Attwood Marshall Lawyers help?
Accountants, financial planners and other professionals must exercise due diligence when tasked with the service of providing advice on superannuation beneficiary nominations. Professionals must ensure they do not provide quasi-legal advice without the qualifications and experience to do so. A qualified legal professional can provide sound and reliable legal advice to the clients of financial planners and accountants, ensuring members receive an all-round exceptional service. 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 directly to Wills & Estates Department Manager Donna Tolley on: 07 5506 8241, mobile: 0423 772 555 or email: [email protected]
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Attwood Marshall Lawyers, Commercial Litigation Lawyer, Georgia Taylor, discusses how customers affected by banking scandals continue to come off second best with “remediation programs” implemented by the banks experiencing ongoing delays.
 
Attwood Marshall Lawyers have been heavily involved in cases against NAB and other lending institutions for matters including unfair conduct, negligent and fraudulent financial planning advice, irresponsible lending, and the famous fee-for-no-service ‘scams’.
The Hayne Royal Commission was a shakeup for the industry which has been a great outcome for those affected by decades of financiers behaving poorly. However, it has brought forward new challenges to the ever-changing sector.
In 2015, NAB rolled out wealth remediation programs in order to work through the case files of customers who should now be entitled to compensation after being charged for services they never received, or being given negligent financial advice that did not align with their risk (usually involving advice to invest in NAB owned entities).
In order to handle the estimated tens of thousands of claims, NAB handed the bulk of these customer problems to Deloitte to assess and ultimately determine the outcome for each customer.
Taking on the high volumes of customer claims from the likes of the big banks drove Deloitte to set up a low-cost delivery arm to assist with processing claims. Deloitte rolled out these programs as Project Hunt and Project Zeus. These projects were aimed at compensating customers for the ‘fee-for-no-service’ scandal and dodgy financial advice. NAB expects Project Hunt to be finished in October, 2020.
ASIC alleged that NAB had broken the law more than 12,000 times and NAB has made provisions for upward of $2 billion dollars for customer compensation which will be paid out under these schemes.
The reports say that poor administration is to blame for the ever-growing delays in customer compensation. This delay in the compensation process is a further insult to bank customers who have suffered losses at the hands of the banks and now have to battle them to get their redress.
Who is Deloitte?
Deloitte is a multinational professional services network and one of the biggest accounting organisations and audit firms in the world. The firm operates in over 150 countries and offer four main services – audit and enterprise risk services, consulting, tax and financial advisory.
Deloitte is not new to controversies with previous litigation surrounding some of their audits. They also received media attention in 2017 when they fell victim to a major cyber-attack which breached client confidentiality.
What is the remediation operation Deloitte is running for NAB?
In the wake of the Hayne Royal Commission report handed down on 1 February 2019, there was an increase in industry demand for experts in risk and compliance. The focus was on the banks to work with experts and to assist in implementing change through the sectors. More importantly, these experts were tasked with picking up the pieces of the banks injured reputations. The role of the assessors was (and is) to understand the regulations for providing financial advice, and to be able to review customer files to determine what, if any, compensation was owed to the customer.
Made up of inexperienced junior graduates, the externally housed sector of Deloitte is reported to have experienced a high turnover of staff which caused a significant slowdown of the processing of customer claims within these projects. It is reported that staff expressed their dissatisfaction when working for the programs, stating the low income, poor work environment and demand on churning through files quickly was unmanageable. Staff were allegedly quick to jump ship to work for boutique firms where they were enticed with larger salaries and better working environments.
Why isn’t it working?
As a result of being understaffed and experiencing high staff turnover, Deloitte have had issues whereby claims are excessively delayed and there are many cases where compensation is incalculable. This is due to bank employees and ex-financial advisers disposing of client documents for risk of their deplorable behaviour being exposed which could result in a loss of the respective employee’s financial services license. The lack of documentation and transparency from banks during these transactions in question, have left advisors and consumers in the dark. This has only added to the workload and stress for all involved.
Again, it seems as though the banks are being pushed to provide consumers with the outcome they deserve because of historical misconduct. Thankfully, the regulatory body ASIC has told institutions to be generous in their payment of compensation. The banks notionally have said they’ll settle for a fair and reasonable payout in circumstances where documentation is scarce or non-existent. However, our experience is that the banks continue to ‘dodge’ claims wherever possible and make it a difficult process with lodging claims. Some of the tactics have been:

Requesting the same documents numerous times despite them being submitted by post, email and online;
Delays in responding to emails, correspondence and phone calls;
Delays in processing the claims and providing a decision with respect to the claim;
Making a decision concerning the claim which denies any wrongdoing or loss of the clients, despite clear evidence to the contrary;
Refusing to cooperate and provide copies of documentation in their possession;
Raising limitation period defences in circumstances where the banks have caused and/or contributed to the long delays in bringing a claim;
Denying the existence of financial advice and/or assessing the financial advice pursuant to the bank’s own assessment, rather than that of the customers losses or external experts.

What can you do if you have been impacted?
Attwood Marshall Lawyers have experienced similar difficulties with deciphering customers claims as a result of the conduct displayed by banks, dating back to the 1990’s. We can’t express the importance of customer’s holding onto all documentation from banking matters in order to assist in getting a fair outcome.
Haynes recent report has highlighted how ineffective the big banks were, the little control they had over their staff and of course how this misconduct is still impacting consumers today. It has been noted by ASIC that many past and current programs developed to assist with compensation for customers have failed to reach a good standard of consumer outcomes.
How can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers have developed a stream-lined system that not only assists consumers with their claims, but also provides the necessary information to the bank’s advisors in the driver’s seat who are determining a claim for compensation. We use reputable forensic accountants to assess the conduct of the bank and calculate the losses suffered as a result of this conduct. Our Commercial Litigation Lawyers are experienced in dealing with lending institution matters and are highly specialised in all areas of business and commercial law with a key focus on dispute resolution. The team have the local knowledge and industry experience to advise and guide you through the ever changing and complex commercial litigation and dispute resolution law system, in order to obtain a positive outcome.
Have you suffered financial loss as a result of bad or incorrect financial advice? You may be entitled to claim damages. Contact our Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email [email protected] or free call 1800 621 071.
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Attwood Marshall Lawyers, Wills & Estates Lawyer, Emily Edmonds, discusses Retirement Village Agreements and the importance of having a lawyer look over the contract before you sign the dotted line.
 

Attwood Marshall Lawyers · Understanding Retirement Village Agreements
 
It can be tempting to enter into a Nursing Home or Retirement Village Agreement without having a lawyer review and advise on the content beforehand. People often think this advice is unnecessary or decide against getting advice in order to save time or money. However, not seeking legal advice before entering into one of these agreements can result in spending a lot more money than what you would have paid to get the right advice in the first place. Retirement Village Agreements are usually quite complex and many people find them to be confusing. Without getting help from a solicitor experienced in these agreements, you will be vulnerable to hidden costs and rules you may not fully understand.
What is the difference between nursing homes and retirement villages?
There are a few different types of facilities that someone can move into when living at home no longer suits them. There can be a number of different names used to refer to the same type of facility, but the two main ones are nursing homes and retirement villages.
Generally, a nursing home is a facility that provides a higher level of care for someone once they reach a certain stage in their life where they need assistance with looking after themselves. This can include help with feeding and personal care. When entering these facilities, a bond may be payable, which is usually fully refundable.
How is a retirement village different to a nursing home?
A retirement village is an assisted living community for seniors. These villages provide different levels of care. The types of care available to residents can include:

Low care: which is independent living, and you have just your meals and laundry services provided;
Mid to high levels of care: where additional services are provided such as medication management and personal care.

Retirement villages usually offer social and recreational activities to their residents.
Attwood Marshall Lawyers mostly deal with Retirement Village Agreements and have many clients who love living in these villages. Before choosing the most suitable facility and living arrangement, it is important to make the appropriate enquiries with both types of facilities.
What should you do if you would like to move into a retirement village?
If someone is interested in moving into a retirement village, they need to inspect the property multiple times. It’s a good idea to have a look at all the available facilities in your area so that you can compare them and work out what you like and what you don’t like.
Once you have decided which facility you want to move into, you can communicate your interest to the facility manager. It’s at this time that you should be provided with some preliminary documents such as a Disclosure Statement and facility information brochures about the village and what your life there could be like.
From there, contact should be made with a lawyer so that you can discuss the process and understand what to expect moving forward.
What is the process after choosing a retirement village?

Step 1: The facility will have their solicitor provide you with a village contract or agreement.
Step 2: It’s at this stage you should have your lawyer take over the matter on your behalf.
Step 3: Your lawyer will thoroughly review the agreement, looking at fees payable upon entry, exit fees, and the main rules – including those regarding pets.
Step 4: Your lawyer will then write a letter of advice based on the agreement.
Step 5: Sit down with your lawyer to run through the agreement and discuss anything you are unsure of, and if required, re-negotiate any terms of the agreement as needed, before signing.

With the help of your solicitor, you can ensure that you are making an informed decision about the facility of your choice prior to signing the agreement.
How detailed can Retirement Village Agreements be?
These agreements can be a very detailed contract which is why it is important for a lawyer to review them. They can be quite overwhelming as they’re usually over one hundred pages long and they set out everything from the costs involved, to your entry and exit of the facility. They also cover the village rules that you must abide by during your time living there.
What are some examples of rules which may be outlined in the agreement?
Most retirement villages have a list of rules that all residents need to follow. These cover things like whether you’re allowed to have pets and if so, what kind. Other rules may include the sorts of things you can add to your room, such as hanging paintings on the walls, or expectations in relation to any visitors you may have when living in the village and time-frames around visiting hours.
It’s important to be familiar with these rules because if you are not, you can find yourself in a position where you’ve broken rules without even realising it. For serious breaches of the rules, your agreement may be terminated, and you could be asked to leave the village.
What can happen if you don’t have a lawyer check the fine print of an agreement?
If you don’t receive legal advice on a Retirement Village Agreement, you risk missing vital information which could lead to a situation where you’re legally bound by an agreement that you’re not happy with. That can cause a lot of emotional and financial stress.
An example of a resident being unhappy with their Retirement Agreement:
We recently had a retirement village resident come to us who wanted to move out of a village after she’d been living there for approximately 18 months. When the resident told the retirement village of her intention to leave, she ended up with an exit fee of around $150,000.00 that she was obligated to pay. This was on top of the weekly fees she had already paid during her stay.
If the resident had have received legal advice before signing the agreement and moving into the village, this fee wouldn’t have come as a surprise. The stress and anxiety that she experienced as a result of this shock bill could have been avoided.
What happens once the agreement is signed?
Once the agreement has been signed, it is then sent back to the solicitor acting on behalf of the village. The agreement will then be checked and if everything is in order, arrangements are made to settle the matter – which is much like the settlement of a conveyancing matter. This usually involves liaising with the solicitor acting for the village, and most people will have a sale of their current property that needs to be coordinated as well.
Juggling these matters may sound like a lot of work, but it’s something that lawyers are experienced in, and are able to take care of to ensure a smooth transition to retirement living.
Does a Retirement Village Agreement affect other elements of general estate planning, such as a Will?
The agreement won’t affect your Will as such, but entering into a Retirement Village Agreement can definitely affect your estate. This is because when you enter into a Retirement Village, you usually sell your home to fund your entry fee and then if you decide to move out of the village or you pass away, the village will take an exit fee. This can be around 35% of what you paid to enter the village, plus any other refurbishment and administration costs on top of that.
This is a really significant amount. The result is that the value of your estate can be greatly diminished – that’s why it’s so important that you and your family understand the Retirement Village Agreement properly before signing it.
How can Attwood Marshall Lawyers help?
As an essential business unaffected by the lock-down directives, we remain open for business. We continue to provide our legal services to the same exceptional standards. Our offices are located at Kingscliff, Coolangatta, Robina Town Centre and Brisbane. Our 24/7 phoneline is 1800 621 071.
Attwood Marshall Lawyers have a dedicated team that practice exclusively in this area. For enquiries concerning Wills & Estates, 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 Why you must get legal advice before signing Retirement Village Agreements appeared first on Attwood Marshall.

Attwood Marshall Lawyers, Wills & Estate Lawyer, Larisa Kapur, discusses funerals and the importance of including your final wishes in your Will.
 

Attwood Marshall Lawyers · Outlining Funeral Wishes in Your Will, Law Talks, 4CRB Community Radio
There’s a number of reasons why it is important for your funeral wishes to be recorded in your Will. These can include whether you want to be buried, cremated, or if you have a specific location you wish your final resting place to be.
For those with a Will, the Executor has the right to take possession of your body and follow through with what has been specified in the Will.
Where there is no Will, the person with the highest priority to get Probate or Letters of Administration, such as a spouse, would be left with the right to the deceased’s body and the right to follow through with any wishes that have been left. If specific wishes have not been indicated in the Will but have been discussed with family, these can also be considered.
Who is in charge of the organisation of the Funeral?
The Executor or personal representative that is awarded that power will be able to organise the funeral. In saying that, a lot of people appoint a professional to be the Executor. This helps keep things simple for the family. The deceased may still have intended for family to have their input, and the Executor has the ability to seek assistance from the family in relation to organising the funeral, burial or cremation.
Who pays for the funeral?
The Executor or personal representative is responsible for making the payment to the funeral home. However, if the person who has passed away has money in a bank account, although their accounts are frozen, the Executor or personal representative is able to present the funeral home invoice for the burial or cremation and the bank can release these funds.
If there’s no money in the estate, then the Executor or personal representative can apply to the government to have a government funded funeral. This means the government would pay for a dignified burial or cremation.
What are the different types of funerals and how can these affect how a funeral is planned?
Specifying different types of funerals can be a very relevant wish that people include in their Will. For example, a Will may state a wish to be cremated with ashes scattered at a specific location. This gives the Executor somewhere to go to determine what your wishes are.
Sometimes people have organised a pre-paid funeral plan through a funeral home with their wishes formally documented. These documents can then be stored with your Will, so the Executor is able to reference these when the time comes.
Are there situations where permission must be obtained to fulfil someone’s wishes?
This is not something I have experienced; however, there have been scenarios where people have snuck ashes into public places to be scattered in order to fulfil the wishes of their loved ones. For example, onto a roller-coaster at Disneyland to scatter ashes during the ride.
There are a lot of complications around these types of scenarios. People generally don’t ask for permission, and usually when you intend to go to a public place, you should seek such permission.
Conflict between family members on funeral arrangements
The Executor has right above all others to arrange the funeral. Sometimes if there is no Executor, these matters can get very messy and even end up in court.
How do funerals get arranged when there’s no Will?
The person who has the highest ranking to become your legal representative, such as a spouse or child, would have the ability to get possession of, and dispose of, your body.
If a Will is being disputed in court, does this effect the Funeral process?
Funerals need to be organised relatively quickly once a person has died. Generally, when a Will is being disputed it is usually because someone has not received enough provision.
These types of disputes should not affect funerals from going ahead, unless it is a direct issue relating to the disposal of the body. In this case an urgent court application would be bought to stop the person being buried or cremated. Other than these circumstances, there should not be any effect on the Executor arranging the funeral in accordance with the deceased’s wishes.
How can a Will ensure that you have the funeral of your wishes?
If you put specific wishes in your Will, in terms of being buried or cremated, or have included a document which needs to be read with your Will outlining specific funeral wishes, so long as the request is reasonable, the Executor is obligated to follow through with these.
If you want to be disposed of in a way that is considered unethical or illegal, or is simply not possible, then that’s a scenario where the Executor would not be able to follow through with the deceased’s wishes. For example, taxidermy is unlawful, and these types of wishes would not be granted.
Why is it important to write a Will?
Some of the questions asked during the Will writing process are things people may not have necessarily thought about.
People may say they don’t care what happens to them once they are deceased, but they may not think about the closure and grief that their family and loved ones left behind go through. It is important to have a little bit of view in that planning. If you specify your wishes, this can provide some closure to your loved ones in knowing that you have chosen a place you are comfortable and happy with.
Do you need a Lawyer to make a Will, or can you write it yourself?
It is always recommended to have a lawyer complete your Will so that you know the Will is done correctly. If you go ahead and attempt to do the Will yourself, often it does not meet legal requirements.
A Will is not something you can simply write on a piece of paper, and ask to be given to a certain person. There are rules you must adhere to and if you don’t, your Will can be rendered invalid. This can mean instead of having a decent plan in place, you may have caused conflict for your family.  In our experience, we see where people have attempted to complete their Will themselves and it has been quite ugly, messy and expensive.
How can Attwood Marshall Lawyers help?
As an essential business unaffected by the lock-down directives, we remain open for business. We continue to provide our legal services to the same exceptional standards. Our offices are located at Kingscliff, Coolangatta, Robina Town Centre and Brisbane. Our 24/7 phoneline is: 1800 621 071.
Attwood Marshall Lawyers have a dedicated Wills and Estates team that practices exclusively in this area.
For enquiries concerning Wills & Estates, contact Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email [email protected] or free call 1800 621 071.
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The first sentence has been handed down by a Judge, with an auto wrecking yard ordered to pay a $3 million fine and a suspended jail sentence for the directors under tough new industrial manslaughter laws, writes Compensation Law Accredited Specialist, and firm Partner, Jeremy Roche.
 
Attwood Marshall Lawyers welcomes the decision of Judge Rafter with respect to the industrial manslaughter of Barry James Willis. Mr Willis was crushed by a reversing forklift whilst working at Brisbane Auto Recycling on 17 May 2019.
Industrial Manslaughter Provisions
Industrial manslaughter provisions that impose penalties on both companies and its senior officers were first introduced to Queensland legislation in 2017. These laws were aimed at protecting Queensland workers. Despite being introduced in 2017, the Industrial Manslaughter provisions remained untested until Brisbane Auto Recycling and its directors were prosecuted in Queensland’s first industrial manslaughter case.
The Conviction
The court fined Brisbane Auto Recycling $3 million and convicted the company and its directors, sentencing both directors Asadullah Hussaini and Mohammad Ali Jan Karimi to 10 months imprisonment (suspended for 20 months).
The company directors were particularly culpable in circumstances where they:

Lied to Mr Willis’ family and investigators as to how Mr Willis’ workplace death occurred. They blamed Mr Willis, lied about who was driving the forklift (which happened to be an unlicensed forklift driver), and deflected responsibility;
Initially failed to disclose the CCTV footage of the incident to investigators;
Failed to take out mandatory workers compensation insurance to cover Brisbane Auto Recycling employees in the event of injury or death;
Failed to ensure that the company implemented safe systems of work to minimise the risk of injury or death to its workers.

In this case, both the directors knew the risk to the safety of their workers but made a conscious decision to disregard that risk, according to the decision handed down. The directors are extremely fortunate to have avoided a significant custodial sentence with those circumstances of aggravation involved.
A Wake-up Call
Queensland’s first industrial manslaughter sentence slams home a decree to all company directors that have cavalier or reckless attitudes towards worker safety. The penalty imposed in this case shows that it will not be tolerated. In addition to penalties to the company, significant personal ramifications can also apply to the directors themselves (including criminal convictions and jail time). Although the directors escaped actual jail time in this instance with a suspended sentence, all employers will be on notice that workplace health and safety is a serious issue which cannot be taken lightly. Any workplace fatality has a devastating impact on the worker’s family with many dependant spouses and children involved. Although certain dependant family members have entitlements to compensation through WorkCover, this is manifestly inadequate for the loss of a loved one. Sadly, only dependant spouses and children usually qualify for a death benefit.
In this instance, Mr Willis leaves behind four children and six grandchildren.
Workplace Deaths in Australia
Despite an increasing awareness of workplace safety laws, industry safety regulation and modernisation of safe work procedures, there remains far too many workplace deaths in Australia in recent years.
As reported by Safe Work Australia, as at 4th June 2020, there have been 78 Australian workers killed at work this year. In 2019, 178 Australian workers were fatally injured while working, compared with 144 workers in 2018, of which 31% of those worker fatalities during 2018 were due to a vehicle collision.
The Brisbane Auto Recycling decision will likely force a number of company directors to re-evaluate their safety procedures now that the personal culpability of directors has been sheeted home.

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 Queensland’s first jail sentence for new industrial manslaughter laws appeared first on Attwood Marshall.

Once the terms of a contract have been agreed upon and all parties are ready to proceed, it’s critical an experienced conveyancer checks and enters the correct Buyer’s entity, writes Property Lawyer, Andrea McGarry.
One of the most common and problematic mistakes we see is when a cheap conveyancer has not checked that the correct entity is listed under the ‘Buyer’ field on the contract, and a Buyer has signed the contract in the belief that they can confirm and amend the contract to reflect whatever the correct entity is, later on.
The reality of the situation is much more troublesome for all parties involved as well as the real estate agent. Where the contract reflects the incorrect entity, the termination of the existing contract is best practice and entry into a new contract is required with the correct entity. This ensures the Buyer does not pay Stamp Duty twice.
Incorrect entity a problem for real estate agents
If a Buyer’s entity is incorrect, the sale of the property can stall and the real estate agent may be forced to compensate everyone for the error. This is because in order to terminate an existing contract, it must be terminated by Deed of Rescission. In order to enter into a new contract, the Seller must consent to the termination of the existing one. In Queensland, there is no provision to terminate the standard REIQ contract due to the wrong entity being entered. In New South Wales, the situation is the same.
If the Seller does not consent to the termination, the Buyer may be stuck with the contract as is. If the Seller does consent, the process can be costly as it will require a brand-new conveyance and the Seller will likely require the real estate agent to pay their costs for preparation of a new contract, Deed of Rescission and any associated legal advice.
As a real estate agent, referring your Buyer to an experienced conveyancer or Property Lawyer will help you avoid these problems. Attwood Marshall Lawyers can assist your Sellers and Buyers to ensure the correct entity is entered. A range of entities can be used to purchase property, and strategically speaking a Buyer must seek legal advice on which is the best and correct entity to choose. Below we identify various buying entities:
Individuals
One of the most common ownership structures is to buy a property in the name of an individual or jointly with others. Individuals can benefit from negative gearing, eligibility for a full CGT discount and as an individual entity it can be more cost-effective to set up and maintain. However, this can limit the individual’s asset protection capabilities, particularly if they own a business.
Company 
It is commonplace that when buying property, the Buyer will often be a company or a company acting as Trustee (often in connection with a superannuation fund). Buying investment properties within companies has become less common over the years because companies are not eligible for the 50% CGT discount that individuals receive if they hold a property for more than 12 months.
Trustee
There are two main types of trusts you can purchase property within; unit trusts (sometimes referred to as fixed trusts) and discretionary trusts (sometimes referred to as family trusts). When the buying entity is a Trustee on behalf of a trust, the Trust Deed must have been entered into before the date of the contract and the Trustee must have powers within the deed to be able to enter into a contract. Again, if the trust is left off the contract, it is not a simple fix to hand-write the trust after the contract has been dated.
Executor of an Estate
A Seller may be selling a property on behalf of an estate. If the property is still registered in the name of the deceased, the contract will require special conditions to ensure the Executor is registered on the title prior to settlement. An experienced Property Lawyer must assist with this to ensure that Probate has been granted in order for the property sale to go ahead.
What about ‘or nominee’?
Some agents believe including the phrase ‘or nominee’ is a way to allow the Buyer to enter into a contract now and finalise their entity at a later date. This is simply not the case. If the Buyer wishes to appoint a nominee and avoid double Stamp Duty implications, there must be specific nominee documents which predate the contract.
What about the Seller? 
Completing a title search is the best way to ensure the Seller has been correctly described in the contract. The description of the Seller should mirror the registered proprietor on the title.
What’s wrong with handwritten amendments to the Buyer’s entity? 
The most prevalent issue that can arise from changes to the Buying entity after the contract has been dated is potential double Stamp Duty implications. An incorrectly described entity on a contract can potentially result in additional transfer duty for the Buyer – and a headache for the Seller. You should always ensure you give Buyers the opportunity to seek independent legal advice prior to signing a contract. An experienced Property Lawyer will always ensure the Buyer uses the correct entity.
Attwood Marshall Lawyers is an experienced Property Law and conveyancing firm, certified for PEXA electronic transactions. To avoid risk or unnecessary delays to your contract, get professional legal advice by contacting our 24/7 line on 1800 621 071 or Jess Kimpton, Property and Commercial Department Manager, on her direct line: 07 5506 8214 or Mobile: 0403 452 459 or Email: [email protected]
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