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.  
Defending a contested 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 for the enactment of family provision legislation (enacted to allow for spouses, minor children and 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; or
the person making the will had good reasons to leave them out (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 little information out there for an executor who finds themselves dragged into legal proceedings when a will is contested.
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 (although this varies from state to state);
When a will is not prepared properly. For example, when the document has not been signed or prepared in accordance with the laws;
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;
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 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.
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 timeframes 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.
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.
What should you do if you are an executor of a will that is being contested?
If you are an executor defending a contested will, as soon as you have put on notice that a claim or legal proceedings been commenced you must seek legal advice. 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 an executor defending a contested will and have been threatened with legal proceedings, it is imperative you get quality legal help for 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. Seek expert legal help early.
Established in 1946, Attwood Marshall Lawyers is the 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. Our offices are in every capital city and we can provide you with a complimentary initial consultation today.
Please contact Estate Litigation Senior Paralegal, Amanda Heather, on direct line: 07 5506 8245, email: [email protected] or Freecall: 1800 621 071
The post PODCAST: Defending a Contested Will – Your Role as Executor appeared first on Attwood Marshall.

Contesting a Will is, without a doubt, a controversial topic and the subject often creates polarising opinions. As lawyers, we tend to bear the brunt of other people’s opinions on family provision laws, writes Wills & Estates Associate April Kennedy.
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 for the enactment of the family provision legislation (initially enacted to allow for spouses, minor children and dependents to seek provision from the estate of the breadwinner when they gifted 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; or
the person making the will had good reasons to leave them out (there’s two sides to every story!); or
they consider that a person should be able to make a will and 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?’. 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 little information out there for an Executor who finds themselves dragged into legal proceedings when a Will is contested.

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 (i.e. usually a spouse, child or dependent, although this varies from state to state)
When a Will is not prepared properly EG. When the document has not been signed or prepared in accordance with the laws;
When the Will maker did not have capacity or was not in the right state of mind to make a Will EG. 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. The person contesting the will must be eligible or have standing to contest the 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;
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 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.
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 claim?
The Executor needs to be pragmatic, they need to be emotionally resilient and objective. It 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 timeframes 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.
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’.

How can Attwood Marshall Lawyers help
If you have been left out of a Will or feel that you have not been adequately provided for in someone’s Will, please contact us to arrange an obligation-free appointment for preliminary advice.  Our experienced lawyers will be able to provide you with an assessment of your prospects of bringing a claim and outline the terms upon which we are prepared to accept your instructions.
In many cases, we agree to act for you on a No Win, No Fee basis.  This means that we do not charge you anything for costs and disbursements until the end of the case and we only charge you if we win!
For any enquiries regarding contesting a Will, please contact the Department Manager Donna Tolley, on direct line (07) 5506 8241 or by email on [email protected].
The post What’s involved in contesting a Will? appeared first on Attwood Marshall.

Commercial litigation solicitor Charles Lethbridge explains how sweeping law reforms could strengthen protections for homeowners making a claim for building defects in NSW.
The building industry is set for a significant overhaul as legislative reforms giving stronger protections to homeowners move through the New South Wales Parliament. The Professional Engineers Registration Bill and Design and Building Practitioners Bill were introduced in October, following emergency evacuations of Opal Towers (pictured) and Mascot Towers, and the NSW Government’s response to a Federal Building Confidence Report.
The Confidence Report confirmed the experience of too many homeowners in NSW, finding that there is a “prevalence of serious compliance failures in recently constructed buildings”. It recommended a comprehensive plan to address these issues, alongside legislative reforms, which the NSW Government has promised to move closer to finalisation in 2020.
The proposed laws could mean homeowners have more avenues available when seeking compensation for a building defect in NSW.
Currently, building contracts in NSW usually contain terms in relation to defect liability periods in respect of building works which is typically between 12 months and 24 months from the practical completion of the building works. However, contractual defects liability periods cannot remove or limit statutory warranties.
Mascot Tower Evacuation. Photo: AAP.
Current critical time periods for making a claim
Currently, successors in title are unable to bring a claim relating a defects liability period – only a party to a building contractor can bring such claim. The following time periods apply in respect of commencing statutory warranty claims for building contracts entered into on or after 1 February 2012:

For major defects – 6 years (with a six-month extension if a building defect becomes apparent during the last 6 months of the statutory warranty period); and
For defects which are not major defects – 2 years (with a six-month extension if a building defect becomes apparent during the last 6 months of the statutory warranty period).

A major defect is one which concerns the structural integrity/stability of the building, a fire safety system, waterproofing or another element as prescribed by the regulations of the Home Building Act. In essence, a major defect may be defined as a serious problem which impacts upon habitability and the use of the building and goes to its potential destruction or collapse.
Current restrictions on NSW homeowners
Currently, there is a very high threshold to satisfy in any claim for negligence against a builder or developer. There is a 6 year limitation period for pursuing a claim in negligence from the date that a defect becomes known.
Homeowners may also have a claim for misleading and deceptive conduct against a builder or developer and the time limit for commencing such an action is 6 years from the date that the cause of action accrues.
Proposed Reforms for NSW Building Industry
In light of recent evacuations of buildings in NSW the standard of quality in the building industry has been the subject of significant media attention and the Government has issued a report making recommendations to improve building practice standards. The Government has announced it intends introducing a robust regulatory framework for the construction of buildings NSW. Those reforms include:

Building practitioners will owe a common law duty to owners corporations and subsequent residential homeowners;
Building designers such as architects and engineers are to declare that building plans comply with regulations;
A building commissioner is to be appointed to act as the consolidated regulator;
A register of engineers and certifiers is to be created.

Significantly, current High Court authorities dictate that a duty of care cannot be imposed unless it can be demonstrated that homeowners were vulnerable and unable to protect themselves from the builder’s lack of care/negligence.
In circumstances where a building contract contains detailed provisions in relation to the liability for defects, it was unlikely that parties were vulnerable. Further, the High Court has held that such a duty of care is unlikely to apply to subsequent owners who are sophisticated commercial parties.
Accordingly, government reforms aim to insure that property owners have more avenues available when seeking compensation for defective building works.
How Attwood Marshall Lawyers Can Help with a building defect in NSW
Attwood Marshall Lawyers has recently acted for both homeowners and building practitioners in significant class actions in respect of major building defects. One case concerned the waterproofing of a building, the other concerns a fire which broke out at Cathedral Place in Brisbane in 2013. In both matters, as well as in numerous other smaller building disputes, Attwood Marshall Lawyers has achieved successful outcomes on behalf of both builders/developers and homeowners.
In our experience, defects (minor or major) to building works are an inevitable part of the building process and they are not necessarily attributable to a builder’s poor workmanship. As occurred in the above case concerning a building’s waterproofing, the fault lay with a poor quality walling system which had been imported from Asia.
If you are involved in disputes which have arisen as a result of poor workmanship and/or building defects in NSW, please contact our department manager, Amanda Heather, on (07) 5506 8245 or email: [email protected] or free call 1800 621 071.
The post New laws to change how homeowners make a claim for building defects in NSW appeared first on Attwood Marshall.

Bad financial planner advice was rife in the banking sector before financial planners extended their barbs into smaller firms – but how do you know if you got bad financial advice, and how do you recoup your losses? Commercial litigation solicitor Georgia Taylor explains.
During the course of the Royal Commission Inquiry into Misconduct in the Banking, Superannuation and Financial Services Industry, many findings have undermined consumer trust in our financial institutions. From the banks to mortgage and insurance brokers, and financial planners, executives in the witness box have revealed the abhorrent abuse of customer trust rife in the banking industry, leading many consumers to crippling financial losses.
Most commonly, financial planners have received commissions for signing consumers up to financial products while providing their planning services under the guise of independent, impartial and unbiased advice. Storm Financial is the poster boy for the rort. Storm clients lost an estimated $3 billion at the hands of advisers who were just salesmen, motivated by high commissions to flog as much product as they could. These conflicted payments are at the heart of the culture of “greed” as identified by Commissioner Kenneth Hayne at his conclusions.
The banking sector a large number of financial planners quit in droves or trickled from the banks into smaller and independent firms. All investors must stay vigilant. Financial kickbacks aren’t the only cause of bad financial planner advice. Incorrect or negligent financial planning advice is also common. Some financial advisers overestimate their ability to service their clientele, and instead of referring their clients to a lawyer, provide quasi-legal advice without the qualifications or the skills to do so.
Bad financial planner advice: Warning signs you are the victim of bad financial planning advice
Often, it can be difficult to identify when you have received bad financial advice before the losses are incurred. The damages flowing from financial advice can often not quantify for 12 months (for example and a financial year). Through our experience, we have identified the following ways to identify bad financial advice:
WARNING SIGN 1: Sudden loss in your investment: No doubt the most obvious way to identify bad financial advice is when you suddenly incur financial losses. As an outcome of the Banking Royal Commission, financial advisers employed by a banking institution have become redundant after the discovery of the shoddy financial advice they were providing to consumers. It was discovered that the financial planners were not complying with their duty of care to the customers and were often investing their hard-earned funds of into investments which weren’t contusive to the client’s financial objectives. The result of this was that the clients lost large portions of their life savings, retirement funds or other investments.
WARNING SIGN 2: Unexpected bills: if your financial planner has provided you with bad advice regarding your income, superannuation, tax or investments, the most likely time the losses would be realised is at the end of the financial year when the tax office issues its notices for the year. If not implemented correctly, many tax-saving strategies can cost clients tens of thousands to sometimes hundreds of thousands of dollars.
WARNING SIGN 3: Your financial planner provided you legal advice: While financial planners have a general knowledge of the effect legislation has on your investments, estate planning and/or company arrangements and they are required to identify potential issues with their clients, they are not qualified to provide you with legal advice. The following legal advice should never be provided by a financial planner, and if you have been given this advice it is a red flag that your investment is at risk.
Superannuation Death Nominations
Any advice provided to a consumer about the proceeds of their superannuation and benefits once they are deceased moves into the capacity of the consumer’s estate planner their lawyer. This is because any advice given is pursuant to the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) is deemed legal advice, not financial advice.
Bad financial planner advice – taking legal action

KEEP A RECORD: It is vital that you seek and keep record of all documents, correspondence and written advice from your financial planner and have all of the documents prepared in order to provide same to your chosen profession.
GET A SECOND OPINION: We then recommend that you go and seek a second opinion on the financial advice you have received. It is important to be able to determine if your advice was appropriate for your needs at the time you instructed your financial adviser. Unfortunately, bad investments are a factor of the industry and they cannot always be the fault of bad financial advice. If you are concerned that your advice was not appropriate for your needs, another financial planner should be able to identify this for you.
GET LEGAL HELP: If you have incurred a loss as a result of financial planning advice and would like to assess if you may have a claim against your financial planner, Attwood Marshall Lawyers can assist.

How Attwood Marshall lawyers can help
Under the ASIC Act and the Corporations Act, financial advisers must not engage in unconscionable conduct or misleading and deceptive conduct. Financial planners must not make false or misleading statements. They must provide their services with “due care and skill”. And they must also provide their services efficiently, fairly and honestly while giving a reasonable basis for their advice.
However, during the Banking Royal Commission, Dante De Gori from the Financial Planning Association conceded many financial planner advisers do not understand their obligations under the law as well as under the code of ethics. Neither the FPA nor the smaller Association of Financial Advisers have much interest or impact when it comes to disciplining their members for improper advice, let alone warning the public about them.
Attwood Marshall Lawyers have a dedicated commercial litigation department which has extensive experience in claims of professional negligence against financial planners, accountants and lawyers. If you believe you may have been subject to losses as a result of bad financial advice, please call our commercial litigation Department manager Amanda Heather on xx
The post Bad financial planner advice – WARNING signs you are a victim – How to take legal action appeared first on Attwood Marshall.

New laws kick into gear from December 1, 2019, affecting all off-the-plan property purchases in NSW, writes Licenced Conveyancer, Rachel Godden.
 
Changes have been made to legislation Conveyancing Legislation (Amendment) Act 2018 and Conveyancing (Sale of Land) Amendment Regulation 2019. From December 1, 2019, Vendors will have extra disclosure obligations to give purchasers stronger protection when buying property off-the-plan. If you are buying a property in NSW, it is critical you seek the help of an experienced and licenced conveyancer to ensure the Vendor adheres to their new legal obligations.
In summary, new laws for off-the-plan purchasing will require:

New disclosure requirements: Disclosure Statement and draft documents to be attached to the contract
Vendors to notify changes to ‘material particulars’
Purchasers can rescind or claim compensation for some changes to material particulars
10-Business-Day cooling-off period for off-the-plan contracts
Purchaser to be given registered plans 21 days before settlement
Deposit to be held in trust

Disclosure statement
Vendors will be required to attach a Disclosure Statement to the contract that provides

Key information including sunset dates and conditions
A copy of the draft plan prepared by a registered surveyor including proposed lot numbering, area, parking and storage area
Proposed easements, restrictions or positive covenants 88B instruments; draft by-laws affecting the property

If the Disclosure Statement and statutory documents are not attached to the contract. the purchaser has 14 days from the date of contract to rescind.
Vendors to notify changes to ‘material particulars
A Vendor must notify a purchaser of any changes made that will adversely affect the use or enjoyment of the lot including changes to:

The draft plan
By-laws
Schedule of finishes
Easements or covenants
A strata management statement or building management statement
A management statement for a community, precinct or neighbourhood scheme
A development contract or strata development contract.

RELATED: Buying or Selling Property – Don’t Risk Your Biggest Investment
RELATED: Off the Plan Property – What You Need to Check Before You Buy
Purchasers can rescind or claim compensation for some changes to material particulars
A purchaser must show that they would not have entered into the proposed contract and that they are materially prejudiced by the changes to be able to rescind the contract. Rather than rescinding the contract, the purchaser may claim compensation (up to 2% of the purchase price) for the change. A purchaser must within 14 days of being notified of the change of material particular, exercise their rights to either rescind or claim compensation.
10-Business-Day cooling-off period for off-the-plan contracts
The cooling off period for an off the plan contract will be extended from 5 to 10 business days.
Purchaser to be given registered plans 21 days before settlement
A purchaser has 21 days to settle once they have been provided with the final registered plan and associated documents. A purchaser does not have to settle within the 21 days period.
Deposit to be held in trust
Any money paid under the contract from 1 December 2019 must be held in the stakeholder’s trust account and is not to be released to the Vendor. This is to protect the purchaser’s payment in the developer become insolvent.
Stronger sunset clause protections
The sunset clause definition will also include events such as the issuing of an occupation certificate and not just the registration of the plan. The buyer is able to rescind the contract should these events not occur by a certain date.
How Attwood Marshall Lawyers Can help
Some cheap conveyancers will invariably not be aware of the legislative changes. Get someone who is a professional and knows what they are doing to act for you, safe in the knowledge they have the experience to protect your investment. Use the Attwood Marshall Lawyers Fress Conveyancing Planner APP to plan your transaction.
Attwood Marshall Lawyers experienced team can help you to protect your investment with professional conveyancing and property law services. Contact Property and Commercial Department Manager Jessica Kimpton on 07 5506 8214 or email [email protected] today.
The post New laws for off-the-plan property contracts from 1 December 2019 – Property & Commercial Law appeared first on Attwood Marshall.

Attwood Marshall Lawyers has an experienced Thoroughbred Racing Law department led by solicitors passionate about horses. Commercial Litigation solicitor Georgia Taylor – an experienced dressage rider and horse owner – recently led a successful defence of a civil matter in the Magistrate’s Court of Queensland (Southport) and discusses the case here.
Our clients were the First and Second Defendant. The First Defendant was the owner of the horse and the Second Defendant was the agent engaged to ride the horse and sell it on the First Defendant’s behalf.

The Second Defendant advertised the horse for sale and engaged with the Plaintiff, the Plaintiff was the first one to see the horse.
The Second Defendant on the vet check disclosed that the horse had no prior accidents or injuries in the seller disclosure. The vet had described ailments on the horse that was typical of a horse of 15 years of age. The buyer had declined to perform x-ray scans on the horse.
The Plaintiff did not read the vet check before purchasing the horse and relied on the veterinarian’s oral representations by telephone on the day of the examination. The written vet check was only delivered after the sale/purchase had been affected and the Plaintiff had taken possession of the horse.
The Plaintiff alleged in the proceedings that the horse was intermittently lame before the paddock accident, however, the horse was being heavily trained, and no veterinarian was ever called to assess the lameness. During the period from the purchase of the horse to the paddock accident, the defendants had only ever received one message from the Plaintiff stating that the horse was going very well. The assertion that the horse was lame was, therefore, was refuted by the Plaintiff’s evidence.
The Plaintiff also said that the Second Defendant mislead her into buying the horse as the Second Defendant said that the horse was “quiet” and “suitable for a beginner rider”. It was alleged that the horse was not as described by the Second Defendant.
Tragic paddock accident
The horse had a tragic paddock accident 6 months after purchase which rendered it unrideable. The horse had torn tendons off its left foreleg and was permanently lame even after rehabilitation. The scans at the point of injury showed that the horse also had advanced ringbone in its left fore but less extensive in its right fore. Ringbone is a degenerative bone disease which is found in the pastern or coffin joint of a horse. The Plaintiff then did some ‘investigating’ into the horse’s background and found that 6 years prior the horse had a puncture wound to its right fore which caused cellulitis, a soft tissue infection near its fetlock whilst it was out on lease. The First Defendant knew of this injury but the Second Defendant was unaware. The lessee of the horse at the time said in evidence that the horse was lame for a few days but was treated instantly and recovered after a week. The puncture wound and the cellulitis had not ever caused the horse problems. Cellulitis is a common infection for horses and is superficial when treated correctly.
The Plaintiff’s basis of the case was, that should she had known of the puncture wound 6 years prior she would not have purchased the horse. Further, that the cellulitis would have caused and/or been connected to the growth of the ringbone along with the allegation that the First Defendant ought to have known of the ringbone as at the time of sale because the horses right fore was x-rayed at the time of being infected with cellulitis.
The Plaintiff, therefore, sued our clients for the costs of the horse, agistment of the horse, farrier bills and vet treatment to the time the pleadings were served, where she claimed our clients fraudulently misrepresented her into purchasing the horse.
Our client’s defence
Our client’s defence was:
– The alleged injury was insignificant;
– The Second Defendant did not know of the injury;
– The First Defendant did not disclose it as it was not an injury it was only cosmetic by that stage and at the time, was superficial at worst;
– The degenerative bone disease was not known by either party;
– The Plaintiff refused scans at the vet check (buyer beware);
– The disease or the injury had caused no loss to the plaintiff it was the paddock accident that had caused the loss;
– The bone degeneration was not caused by the alleged injury as pleaded;
– The Plaintiff was aware of other ailments to the horse that were common of the age (15) which were found in the vet check and that it could not be said that she would not have purchased the horse because of the cellulitis;
– The Plaintiff provided no proof that the horse was not as described by the Second Defendant.
The Plaintiff during the trial specifically objected to evidence by a veterinarian called by Attwood Marshall Lawyers to be questioned as to a causal link the pre-existing condition to the injury.
The decision
Judgment was awarded in favour of the defendants (our client) on the basis of the following:

It was proved that the Defendants collectively did not know about the degeneration as the horse was rideable and that the plaintiff would have known if the vet check scans were undertaken.
The Defendants did not fraudulently mislead the Plaintiff into purchasing the horse, all evidence adduced by the Plaintiff at trial was inconsistent with the Plaintiffs documented evidence after the sale of the horse;
It was not accepted that should the Plaintiff had known about the cellulitis, she would not have purchased the horse.

The Plaintiffs claim was dismissed on the basis that the cause of action was not made out.
If you have an equine dispute and require advice, please contact Amanda Heather, Attwood Marshall Lawyers Thoroughbred Breeding and Racing Department Manager & Senior Paralegal on 1800 621 071 or Email: [email protected].
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Gold Coast First Home Buyers are the big winners of the new Federal Home Loan Deposit Scheme, writes Senior Conveyancing Paralegal Jessica Kimpton.
Details of the Federal Home Loan Deposit Scheme – a Federal Government initiative to allow first home buyers to purchase a property with a deposit as little as 5 per cent – have this week been announced much to the anticipation of First Home Buyers hoping to get their foot in the door.

While it can take 10 years for the average first home buyer to save a 20% deposit, the federal government’s scheme will help First Home Buyers on low and middle incomes to purchase a home with a deposit of as little as a 5% deposit.

The scheme will be administered through the National Housing Finance and Investment Corporation (NHFIC) in partnership with some lenders and will support 10,000 first home buyers each financial year. The scheme will also prioritise smaller lenders to boost competition.

How the Federal Home Loan Deposit Scheme works

• If you’ve saved 5% of the purchase price of your property the government will guarantee the remaining 15% of the deposit
• You will still need to borrow 95%, but you can avoid LMI
• Eligible first home buyers can’t be earning more than $125,000 a year ($200,000 for couples)
• Access to the scheme is limited to 10,000 borrowers
• The value of eligible homes under the scheme will vary by region
• The scheme starts on 1 January 2020 and is limited to 10,000 borrowers per year
Fine print on the Federal Home Loan Deposit Scheme

There are around 110,000 first home buyers in the market each year: 11 times the places available. The grants will begin 1 January 2020 on a “first come, first served” basis, preferencing those who have a deal ready to go and are skilled in form-filling.
You must earn less than $125,000 a year for singles, or $200,000 a year for couples. Only about one in 10 people in Australia earn more than that, so it’s not exactly targeted at poorer people.
You still have to pay back the loan as normal, but it’s bigger. The scheme could see you put down a deposit of $35,000 for a $700,000 property in Sydney. This means your mortgage would be for 95 per cent of the purchase price, or $665,000.
The price ‘caps’ for properties you can buy under the scheme don’t go near the median house prices in the major capital cities, where most people live and work.

Why is the scheme capped?
Limiting the scheme to just 10,000 applications means it won’t make a detrimental impact on already highly competitive market prices in the bottom end of the market of new homes.
First Home Buyers’ Guide: Which is best, QLD or NSW? – Grants Concessions, Exemptions, Stamp Duty – Property & Commercial Law

The Winners: Gold Coast First Home Buyers
The Federal Home Loan Deposit Scheme is designed for people struggling to scrape together the large deposit needed to enter the market, however, with its price caps it restricts where and what type of property you can buy.
You’d be hard-pressed getting in on the scheme in Sydney and Melbourne, where the median house price is over a $1m and $855,428, respectively, and under the scheme, no property in Sydney over $700,000 will qualify and nothing in Melbourne over $600,000 fits either.
If you want to live in Brisbane, the Gold Coast or the Sunshine Coast a $475,000 limit applies, which leave a good opportunity for First Home Buyers who want to buy a unit.
On the Gold Coast, the median apartment price is $425,000.
Hurry – Gold Coast Property prices tipped to soar
If you live on the Gold Coast, you better in quick. Although it has been a rough start to the year for the Gold Coast property market the future is looking bright, according to QBE Insurance data.
QBE’s Australian Housing Outlook 2019-2022 report has predicted the city’s median house ($625,000) and apartment ($425,000) prices would increase in the next three years. The report attributed population growth, a steady supply of infrastructure projects and a strong tourism industry to the expected rises.
Buying your first home? Attwood Marshall Lawyers offer free pre-signing contract advice. Don’t risk your most important investment with a cheap conveyancer, call Property and Commercial Department Manager Jessica Kimpton on 07 5506 8214 or email [email protected] today! Office locations: Robina Town Centre, Coolangatta and Kingscliff, NSW.

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Living near the QLD-NSW border and wondering which state has the best perks for First Home Buyers? Our guide for stamp duty, exemptions and concessions, as applicable for both states can help you make the best purchasing decision, writes Senior Conveyancing Paralegal, Jessica Kimpton.
Attwood Marshall Lawyers Property & Commercial Department has conveyancers, experienced paralegals and property lawyers in QLD and NSW – with well-resourced offices in Kingscliff, NSW, Coolangatta and Robina Town Centre. Being positioned uniquely on the border gives us an expert understanding of the home market in both states. Knowing the difference in stamp duty, exemptions, and concessions in both states can make all difference in determining which state is best for you to buy your first home in.
First home buyers grants in NSW
The grant currently gives eligible first home owners $10,000 to purchase a new home of up to $600,000 or to build a new home up to $750,000. The current grant applies to contracts dated after 1 January 2016. For contracts dated between 1 October 2012 and 31 December 2015, a higher grant of $15,000 applies. If you’re an owner builder, the contract date is the date when the building work commenced.
To be eligible for the grant:

All applicants must be over 18 and a person (not a company or trust);
At least one applicant needs to be a permanent resident or Australian citizen;
No applicant can have previously received a first home owner grant in any State or Territory unless they subsequently repaid it;
You or your spouse (including a de facto spouse) must not have ever held an interest in any residential property in Australia before 1 July 2000. If you bought after 1 July 2000, you may still be eligible if you did not reside in that property for a continuous period of at least six months;
Importantly, you need to live in the home for a continuous period of at least six months (there are exceptions if you are part of the Australian Defence Force and all applicants are on the New South Wales electoral roll) within a year of taking ownership.

The value of the grant depends on your contract date:

Contract date must be on or after 1 January 2016;
The home must be brand new;
The property must be valued at, or below, the First Home Owner Grant cap of $600,000 for buyers purchasing a new home and $750,000 for buyers building a new property.

First home buyers grants in QLD
Depending on the date of your contract, you’ll get $15,000 or $20,000 towards buying or building your new house, unit or townhouse (valued at less than $750,000). The grant is paid per new home and not to each of the applicants for the same home.
You can buy off the plan or choose to build yourself.
To be eligible for the grant:

You must be at least 18 years of age.
You must be an Australian citizen or permanent resident (or applying with someone who is).
You or your spouse must not have previously owned property in Australia that you lived in.
You must be buying or building a brand new home.
The value of the home including the land is less than $750,000.
You must move into the new home as your principal place of residence within 1 year of the completed transaction and live there continuously for 6 months.

The value of the grant depends on your contract date:

$15,000 for contracts dated

October 2012 to 30 June 2016
1 July 2018 or later

$20,000 for contracts dated from 1 July 2016 to 30 June 2018.

Stamp duty for First Home Buyers in QLD
QLD Stamp duty for first home-buyers In Queensland you must pay stamp duty within 30 days after the liability arises to pay transfer duty on the transaction. As a first home buyer you don’t pay stamp duty for the property up to $500k (due to First Home Concession Rate). Then you get a discount for properties valued between $505,000 and $550,000. If property worth more than that you pay full stamp duty rates.
Purchase price- First Home – New Home Duty
$650,000-$0
$680,000-$6,290
$700,000-$10,490
$750,000-$20,990
$770,000-$25,190
$800,000-No discount
 
NSW Stamp duty for first home-buyers Stamp duty becomes payable within three months from the date when the sale or transfer took place. The First Home Buyers Assistance scheme provides first home buyers with exemptions from transfer duty on new homes valued at less than $650,000 and concessions for new homes valued between $650,000 and $800,000. No duty is payable by eligible purchasers buying a vacant block of residential land valued at up to $350,000, while concessions are available for vacant land purchased for between $350,000 and $450,000.
 
Deposits for first home-buyers
5% in Qld
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Life insurance is a topic which can cause mixed emotions.  As humans, we usually avoid discussing worse case scenarios or “what ifs”.  When it comes to ensuring your future financial security and that of your family, life insurance is extremely important, writes Total and Permanent Disablement (TPD) Cover expert, Amy Lewis.
Types of Life Insurance
There are various types of life insurance which fall under the life insurance branch.  It is generally broken down into the following:

Death Insurance

Death insurance pays out your insured amount when you pass away. The money will go to your beneficiaries or your Estate depending on how you have set the insurance up.  Most superannuation funds now include default death cover however you may also own this directly with an insurance company.

Total and Permanent Disablement (TPD) Cover

If you are injured or suffering an illness that results in you being unable to return to work, TPD insurance can help cover your ongoing costs.
TPD claims are usually paid in a lump sum however there are new policies emerging which pay annual instalments provided you continue to be disabled.  It is important to understand what type of policy you have and ensure it meets your personal needs.
TPD policies can be further broken down into ‘any’ or ‘own’ occupation policies. It is important to know which definition your policy includes so you understand what you are covered for in the unfortunate event you need to make a claim.
Like death cover, TPD insurance comes as a default with many superannuation accounts these days. You may also own TPD insurance directly through an insurance company.
Total and Permanent Disablement (‘TPD’) – What is a TPD benefit? How do I make a TPD claim? – Compensation Law

Income Protection

If you are unable to work due to injury or illness, income protection can replace your income up to 75% of your usual salary once you have served your waiting period. Waiting periods can vary from 14 days right up to several months so it is important you select a waiting period which suits your budget requirements.
As with death and TPD cover, income protection can be arranged through your super fund or directly with an insurer.

Trauma Cover

Trauma cover or ‘critical illness cover’ isn’t particularly well known just yet.  This type of cover pays out in the event you suffer a certain illness. For example, stroke, heart attack or cancer.  These funds may assist with treatment costs and ongoing expenses.  At this stage, trauma cover is not available through your super fund and is purchased directly through insurers.
You may occasionally come across ‘accidental death or injury’ policies.  These policies pay a set benefit if you are seriously injured or pass away as a result of an injury.  Unfortunately, these accidental policies can include a long list of exclusions and prove to be difficult to claim against. It is worth being aware what you are covered for before purchasing this type of policy.
How to purchase life insurance?
Insurance can be available through your superannuation fund and/or held directly with insurance companies depending on the type of insurance.  Both options have benefits depending upon your financial situation.
For example, holding income protection through your super (where your superannuation account covers the cost), can be a good option if you are on a low budget. However, income protection premiums paid by superannuation accounts are not usually tax deductible.  Whereas, if you pay income protection premiums from your own funds, you can include these premiums as a tax deduction on your tax return.
As life insurance depends on your personal circumstances, it is extremely important you discuss your needs with an experienced financial planner to ensure you have the right coverage to meet your needs.
Making a Claim for Life Insurance
We have many clients who contact our firm after their claim has been declined.  To ensure your claim has the best opportunity to be accepted, we highly recommend you seek legal assistance from the beginning.
We see many clients lodge their own claims missing documents or important information which means their claims are rejected.  By seeking professional assistance, we ensure your claim is lodged with all the appropriate documentation from the start to ensure the best success.
For a complimentary assessment of your life insurance claim, please contact Personal Injuries Department Manager Kelli Costin on 07 5506 8220 for a consultation.
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Robin William’s contested estate raises important issues about disputes over personal items, writes Estate Litigation Senior Associate, Melissa Tucker.

The death of comic genius Robin Williams in 2015 from an apparent suicide sent shock waves throughout the entertainment world.
He was survived by his third wife, Susan Schneider, to whom he was married for three years, and three adult children from his previous two marriages, whose ages ranged from 22 to 31. Williams had commented he had to change his lifestyle because of how much he lost in his two divorces (reportedly $30 million). He had said he returned to TV because of “bills to pay”.
HOW MUCH DID WILLIAMS LEAVE BEHIND?
He was reportedly worth around $130 million two years ago, however that figure seems well off since Williams later said that he was close to bankruptcy. Recent estimated have him pegged with net worth of around $50 million.
Soon after his death Williams widow, Susan Schneider, and his children went to court in a fight over the late comedian’s estate. In what was filed in the Court Schneider accused the comedian’s children from his two previous marriages of taking items without her permission and had asked the Court to exclude the contents of the home shared with Williams from the jewellery, memorabilia and other items he said the children should have.
The children then counter-claimed that Schneider is adding insult to a terrible injury by trying to change the trust agreement and rob them of the late actor’s clothing and other personal items.
The Williams children were heartbroken that proceedings by, Mr Williams’s wife of less than three years, has acted against his wishes by challenging the plans he so carefully made for his estate.
The attorney for Schneider, said that his client was only seeking guidance from the court about the meaning of certain terms in the trust.
WHAT DID THE TRUST PROVIDE THAT WILLIAMS HAD SET UP IN HIS WILL?
Williams trust granted the children his memorabilia and awards in the entertainment industry and some other specific personal items, according to Court documents. Schneider says that because he wanted her to continue to live at the home the shared in California it makes sense that he intended only for his children to have the specific personal items delineated that were kept at another home he owned in Napa. Any other interpretation would lead to Schneider’s home being stripped whilst she still lived there.
This interpretation was disputed by William’s children saying there were no specific limits on the items.
The two sides also disagreed over items in storage, watches Williams owned and his memorabilia.
Schneider agreed that the rainbow suspenders he wore on the television comedy Mork and Mindy should go to his children from previous marriages but she did want the tuxedo the comedian wore at their wedding. Simple, it might seem but not in the complicated world of blended families.
WHAT DID THE COURT LOOK AT IN TRYING TO RESOLVE THIS DISPUTE?
The probate court in California had to look first at both Williams’ will and the documents that established the trusts for the children.
The court had to seek to determine if those documents delineate who gets exactly what.
If neither document contains either an inventory of each item of personal property with instructions as to who shall receive it or a broader instruction perhaps suggesting “all other property contained at the Tiburon residence or the Napa residence,” then the court would have to engage in a more difficult analysis to determine what Williams’ wishes were when he set up the trusts and executed his will.
WHAT WAS THE OUTCOME OF THE COURT PROCEEDINGS?
Robin Williams’ widow and his three children from previous marriages thankfully were able to reach a settlement in their legal fight over the late actor’s estate, ending a public dispute following the beloved comedian’s suicide some 12 months after his death.
Exact terms of the out-of-court settlement were not disclosed. But representatives for Schneider said she would remain in the San Francisco Bay Area home she had shared with Williams and receive living expenses to maintain the home for the rest of her life.
She also received a watch Robin Williams often wore, a bike bought on their honeymoon, and their wedding gifts. She also got to enforce Robin’s wishes in that she got to stay in the house as Robin wanted, with the trust being created to pay the expenses.
WHAT LESSONS CAN WE LEARN FROM THE WILLIAMS ESTATE?
The Robin Williams’ estate underscores the need to specify exactly which personal items you are giving to family members by trust or will so there is no ambiguity once you pass.
It’s this ambiguity that causes family in-fighting and costs excessive amounts of time, money and energy, even (and maybe even especially) when the estate is of small value.
Especially in a blended family situation, like with Robin Williams family, it’s important to be exceedingly clear about whether children from a prior marriage should receive any money or other assets at the time of your death or if they should wait for all inheritance until the death of your spouse.
This is one of the situations that is most likely to result in strife and complication after death, and it’s so straightforward and easy to deal with ahead of time.
WHAT TO DO IF YOU NEED ADVICE SURROUNDING THEIR ESTATE PLAN AND IN PARTICULAR PERSONAL ITEMS?
For most families, a desire for personal effects — a father’s watch, a necklace, a set of earrings a mother wore — is less about what they are worth and more about their sentimental value. In the case of Mr. Williams, some of those personal items — like an Oscar for his role in the film “Good Will Hunting” or those suspenders — have real monetary value to collectors.
In this case stripped of its Hollywood glamour, is of no difference from the many cases I see of children from previous marriages battling their parent’s last spouse over the smallest things.
The loss of a loved one is often an unbearably sad and stressful time. Between making funeral arrangements and dealing with the distribution of the estate, the weeks and months that follow can feel overwhelming.
The grieving period is only made worse when family members fight over the deceased’s assets. Thankfully, you can help avoid family disputes by making arrangements for the distribution of your assets while you’re still alive. It’s particularly important to address the items that are the most common sources of infighting.
While every estate is different and there’s no guaranteed way to avoid disputes, providing for the distribution of these specific types of assets will go a long way toward mitigating future disagreements among your family members.
While family heirlooms may range widely in financial value, they are often considered some of the most precious assets in an estate by close family members. It’s natural for people to want to be connected to family history, and heirlooms are a tangible way to do that. Moreover, deaths understandably stir up a lot of emotions and family nostalgia, so even people who didn’t previously have an interest in family genealogy often find themselves suddenly wanting their own piece of family history. For items that have been passed down from generation to generation, fights are sure to erupt if you haven’t clearly specified who the item is to pass to next.
Some of the most cherished sentimental assets in a person’s estate which have absolutely no financial value or historical significance whatsoever also cause disputes. These items that are closely associated with the deceased and take on personal value purely through that sentimental connection. Something as simple as a $5 necklace or a hand-knit scarf can spark more heated disagreements than precious jewels if emotional ties are involved.
The best way to avoid fights among your loved ones after you’re gone is to adopt a clear estate plan while you’re still here. Whether you opt to gift items while you’re still alive or transfer items through a will, clearly designating who is to inherit what is the only way to minimize disputes and ensure that your property is distributed according to your wishes.
The best way to learn about protecting your family assets and your intention to leave specific assets to a certain beneficiary is to talk with us about Estate Planning circumstances, where we can identify the best strategies for you to provide for and protect the financial security of your loved ones.
Attwood Marshall Lawyers offer a complimentary estate planning review at our Robina Town Centre, Coolangatta and Kingscliff offices. Phone 1800 621 071 to book today.
The post Contest over Robin Williams Estate – a Sad Lesson on Disputes Over Personal Items appeared first on Attwood Marshall.

The Attwood Marshall Lawyers Caulfield Cup Raceday at the Gold Coast Turf Club on October 19 was a great success, with money being raised for the National Jockeys Trust.
Over 110 guests celebrated the annual day in The Boardroom alongside special guests – Australia’s first female jockey Pam O’Neil OAM and National Jockeys Trust Chief Executive Paul Inness.
The full race track results can be found here, social photos by the Gold Coast Bulletin from the day are here and photos of the winning connections are below.

ATTWOOD MARSHALL LAWYERS Maiden Plate
Race 1 Winner-The Dark

ATTWOOD MARSHALL LAWYERS Maiden Plate Race 1 Winner-The Dark

ATTWOOD MARSHALL LAWYERS Maiden Plate Race 1 Winner-The Dark

ATTWOOD MARSHALL LAWYERS QTIS ThreeYearsOld Maiden Handicap
Race 2 Winner-Luana

ATTWOOD MARSHALL LAWYERS QTIS ThreeYearsOld Maiden HandicapRace 2 Winner-Luana

REVELSTONE STUD Maiden Plate Race 3 – Gold Coast, 19/10/2019, Winner-Arabella Ekcels

ATTWOOD MARSHALL LAWYERS Class 4 Plate Race 4 Winner-Lyrical Prince

ATTWOOD MARSHALL LAWYERS Class 4 Plate Race 4 Winner-Lyrical Prince

RACINGLAW.COM.AU BENCHMARK 70 Handicap Race 5 Winner-TIVOLI STREET

RACINGLAW.COM.AU BENCHMARK 70 Handicap Race 5 Winner-TIVOLI STREET

ATTWOOD MARSHALL LAWYERS Class 1 Handicap Race 6 Winner-Starlighter

ATTWOOD MARSHALL LAWYERS Class 1 Handicap Race 6 Winner-Starlighter

ATTWOOD MARSHALL LAWYERS Class 1 Handicap Race 6 Winner-Starlighter

ATTWOOD MARSHALL LAWYERS Class 2 Plate Race 7 Winner-Elixir

ATTWOOD MARSHALL LAWYERS Class 2 Plate Race 7 Winner-Elixir

ATTWOOD MARSHALL LAWYERS Class 2 Plate Race 7 Winner-Elixir

The post Photo Gallery: Attwood Marshall Lawyers Caulfield Cup Raceday, October 19, 2019 appeared first on Attwood Marshall.

Estate Litigation Senior Associate Melissa Tucker discusses the perils of a simple Wills using the example of Jim Morrisons contested estate.
Whilst holidays are a fun time for families to sit around talk about that six again call in the NRL grand final last weekend or how their grand-daughter Katie is doing in dance class it is also a great time to have the important – yet often difficult conversations about estate planning. What happens when Dad dies? Does anyone know where Mum kept her Will? Is Dad leaving the estate to my step Mum? Who is getting Mum’s jewellery? Many families don’t ask these tough questions especially when dynamics are strained, like in many second marriages or when siblings don’t get along.
It certainly isn’t easy to blurt out after passing the gravy, “Hey Dad, does your Will put me or your new wife in charge of your Estate? But these conversations are important. Because ultimately it’s the family members left behind who pay the price often with ugly, expensive and bitter estate court battles. So to make that conversation easier talking about celebrity estates is a good way to start talking about estate planning. Often we can learn from the mistakes they make and ensure that it doesn’t happen to us.
What is a simplistic Will and how can they affect your estate after your passing?
Like many ordinary individuals, celebrities often have outdated and non-existent estate plans in place. Even when you have careful estate planning and have well-drafted documents changes in family circumstances, your assets and tax laws can create unexpected results.
Overly simplistic Wills
Overly simplistic Wills often fail to consider what happens when the primary beneficiary subsequently dies. Take for example Jim Morrison, the lead singer of the rock group the Doors who died at the young age of just 27 years of age. Despite his young age, hard-partying lifestyle and free spirit, Jim Morrison at least took steps to protect his estate or sort of. It was a simplistic and a poorly drafted two (2) page Will.
At the time of Morrison’s death, his financial assets were relatively modest, but he owned a 25% interest in the Doors. So what did his Will provide?
Morrison’s Will declared that he was unmarried and had no children, and he bequeathed his entire estate outright to his Common Law wife Pamela Courson, if she survived him, or if not, in equal shares to his brother and sister. He was estranged from his parents so they were not mentioned.
However after Jim Morrison died, his estate was tied up in litigation in probate court. As was the typical for rock stars of the day, Morrison and his bandmater were reckless in relationships dozens of woman came forward with paternity claims. Unfortunately, this was long before DNA tests could prove paternity, so it was up to the Court to decide if the claims were credible or not. To make it worse, Morrisons former Doors band mates also sued, claiming a bigger share of the Door royalties.
Courson received a modest stipend to live on during probate proceeding, but wasn’t enough to support her lifestyle or even pay for Morrison’s funeral. She was a reported heroin addict and some suggest she turned to prostitution to support her drug habit.
In 1974 three years after Morrison died, the Court finally rejected the other claims and did finally recognise Courson as the heir to his estate. Ironically, only a few weeks later, Courson herself died of a heroin overdose.
So whilst Morrison’s girlfriend (or Common Law wife) inherited his entire estate when she passed away she died intestate without a Will so her estate including what she had just inherited from Morrison passed outright to her own parents which was now worth millions. Did anyone contest this?
Contest of Jim Morrison’s estate
Morrison’s parents made a claim against their son’s estate arguing that Morrison was incompetent to make a Will and that the common-law marriage to Courson was illegitimate. Had Morrison’s parents been successful in those claims his estate would have passed to them on intestacy and his parents would have been the beneficiaries? However, the Court found that they were in a Common Law marriage so even if the Will was invalid she would have inherited the entire estate in any event. Although they were estranged from their son at the time of his death and were not named in his will, they believed that they had as much right to their son’s legacy and estate as the parents of his common-law wife. The dispute between the parents lasted for several more years. By 1980, the litigation between the two families was settled out of court with an agreement that each would split the royalties of Morrison’s share of the Doors music catalogue 50-50. Because Morrison and The Doors became much more popular in the years following, the value of that royalty stream is reported to have been more than $80 million.
What are some lessons to be learnt from the contest of Jim Morrison estate
Instead of making an outright bequest to Courson, Morrison could have left all his assets on Trust and provided that upon her subsequent death, any remaining assets would pass to his siblings. If Morrison had included a testamentary trust in his Will, he could have extended his control over his assets. Doing so would have ensured that his desired beneficiaries ultimately inherited his estate.
The lessons from all these types of cases are clear. Having an estate plan and creating a will with clear-cut intention helps avoid future potential problems.
It’s worth noting that if Jim Morrison and the Doors had faded into obscurity, and the value of their intellectual property had gone to zero, it’s safe to say that no one would have cared. But when millions of dollars were suddenly at stake, litigation almost became inevitable.
The question then is not if you die but when you die and the fact that we all need a Will even if you’re not rich.
How should I best protect my testamentary wishes?
Chances are many readers have spent plenty of time pondering how much money they will available for retirement. But what have you done to plan your estate? The sad truth is that most of us – some 50% of adult Australians have neglected to write a Will.
Some think their assets are too small to worry about, other worry that the costs of writing a Will are too high. Whilst other’s just don’t get around to it.
But wills aren’t just vehicles for the wealthy or the morbid. If you’ve got a family and a home – not to mention a savings account you should definitely have one.
Cost is no excuse. We pay thousands of dollars to insurance companies every month or year for insurance that we may never claim on yet the cost to prepare a Will for the event of your death that will happen if far more important.
Forget about your assets for a moment for most people, the first time in your life a Will becomes imperative is when you have children. In the terrible event you and your spouse die at the same time without a Will, it will be a Court deciding who is the guardian of your minor children not a pleasant prospect is it?
Before you decide that your Estate Plan is simple just because you want to get out of it cheaply consider the complications and disputes you could leave behind which will tens of thousands of dollars your estate will lose trying to fix up what could have easily been prepared prior to your death. Going to the trouble to protect your heirs with a Testamentary Trust can be more beneficial than you think helping your beneficiaries by turning your carefully built nest egg into chicken feed and protecting themselves as well to put it kindly if the beneficiary is not very financially astute.
Once your Will is in place you then just need to review it regularly and amend it whenever there is a big change in your family circumstances such as a birth, a death, a marriage.
It might seem like a hassle now, but that’s noting compared to the hassles your heirs will experience if you die without one or one that does match your current circumstances. So contact us today for a free review of your Estate Plan to ensure your estate is protected.
Attwood Marshall Lawyers offer a complimentary estate planning review at our Robina Town Centre, Coolangatta and Kingscliff offices. Phone 1800 621 071 to book today.
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SEVEN years ago, jockey Daniel Griffin was in a hospital bed and clinging to life after a near-death three-horse fall during a race at the Gold Coast Turf Club.
The King of the Coast made a comeback two years later but then broke his neck when he was sent into a barrier at the Gold Coast in May 2018.
Despite his horror run of injuries, the 38-year-old has victoriously returned back to racing, winning last years’ Gold Coast Premiership.
With nine Premierships now under his belt, Griffin is chasing his career dream of a tenth Premiership at the Attwood Marshall Lawyers Caulfield Cup Raceday on October 19.

“Two years before I won my first Premiership I decided I was going to make my name that I would be the best rider on the Gold Coast,” Griffin said.
”I would feel complete if I win the tenth Premiership because it’s what I set out to achieve from the start of my career.”
Griffin attributed his medical and professional recovery to the support of the National Jockeys Trust –  proudly supported by the Attwood Marshall Lawyers Caulfield Cup Raceday.
“When WorkCover dried up, National Jockeys Trust helped me with bills, my mortgage, and medical expenses – I couldn’t have done it without their support,” Griffin said.

Australia’s first licenced female jockey – Pam O’Neill OAM – is the Qld Ambassador of the National Jockeys Trust, Secretary and Treasurer of the Qld Jockeys Association, and Director of the Australian Jockeys Association.
O’Neill facilitates the process for Qld jockeys to receive National Jockeys Trust grants.
“The National Jockeys Trust is here to support jockeys like Daniel in their time of need and also their families,” O’Neill said.
“Sadly, 890 Australian jockeys have been killed in race falls since 1847, including two tragic fatalities on the race track this year.
“The National Jockeys Trust has helped to pay for many funerals and always step in to help to take the pressure away from the families in their hour of need.”
Legal Practice Director Jeffrey Garrett said a commemorative navy ribbon for racegoers, sponsored by Attwood Marshall Lawyers, will raise funds for the National Jockeys Trust.
“Jockeys are at the heart of the racing industry and it is a privilege to be able to give back to then at the Attwood Marshall Lawyers Caulfield Cup Raceday,” Mr Garrett said.
National Jockeys Trust CEO Paul Innes OAM, said donations are distributed directly to registered jockeys, who can apply for a financial grant in their time of need.
“Any jockey who has suffered a fall on the racetrack or in training can apply for a financial grant from the Trust to go directly to purchases such as wheelchairs and home aids,” Mr Innes said.
“The demand in the trust is surging, with five Qld jockey applicants since January, so we are grateful to have the support of the Attwood Marshall Lawyers Caulfield Cup to help.”
Attwood Marshall Lawyers is Gold Coast largest and longest-serving firm, with a legal arm dedicated to Thoroughbred Racing Law.
Attwood Marshall Lawyers sponsorship of the Caulfield Cup Rceday has been secured to 2021. The 2019 event will be attended by Pam O’Neil and Paul Innes OAM to raise awareness for the National Jockeys Trust.

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Attwood Marshall Lawyers Property & Commercial Partner Barry van Heerden discusses the legislation governing Self-Managed Super Funds in Part 1 of the Self-Managed Super Fund series. In Part 2, we learn about borrowing by Self-Managed Super Funds.
In recent times we have noted a substantial increase in parties buying property in their self-managed super funds (“SMSF”).
SMSF’s are strictly regulated and non-compliance with the rules may have disastrous consequences.  The Commissioner has a range of options available where there is non-compliance, some of which are the following:-

Making the fund a non-complying fund;
Disqualifying individual trustees and prohibiting them from acting as trustee of a super fund;
Suspending or removing the trustees;
As part of an investigation, freezing the assets of the fund;
Seeking civil and/or criminal penalties through the courts.

In this part 1 of a 2 part series we will attempt to highlight some important restrictions relating to SMSF’s and specifically investments in and by the SMSF.  In part 2 we will provide more details relevant to the purchase of properties in the name of a SMSF and the borrowing of funds to do that.
The Superannuation Industry (Supervision) Act 1993 (“SIS Act”) contains a number of restrictions:-

A restriction against lending money to members of the fund or relatives of members or giving other financial assistance using the resources of the fund to members or relatives; (section 65)
A restriction against acquisition of assets from a related party; (section 66)
A restriction against borrowing except for limited purposes; (section 67)
A restriction against investing in or holding in-house assets above prescribed percentages

(Please note the above is not an exhaustive list).
The phrase “related party” is defined in the Act as meaning any of the following:-
(a)        a member of the fund;
(b)        a standard employer sponsor of the fund;
(c)        an associate of the persons referred to in (a) and (b) above.
As mentioned above, Section 65 of the SIS Act contains a restriction against lending money to members of the fund or relatives of members of the fund or giving other financial assistance using the resources of the fund to members or relatives.
The definition of “relative” is:-
(a)        a parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of the individual or of his or her spouse;
(b)        a spouse of the individual of any other individual referred to in paragraph (a) above.
A “loan” includes the provision of credit or any other form of financial accommodation and “financial assistance” will apply if the SMSF give any financial assistance using the resources of the fund to a member or relative of a member.
There has been some debate regarding the meaning of the word “assistance”.  The courts have considered the meaning of this word with the phrase “financial assistance” and has stated:-
“Financial assistance must be something wanted or needed by a person”.
Another important restriction is the restriction against acquisition of assets from a related party which are dealt with in Section 66 of the SIS Act.  The section states basically that a trustee of a SMSF must not intentionally acquire an asset from a related party of the fund.
There are some exceptions to this restriction, mainly relating to acquisitions of business real property, listed securities and certain in-house assets.  The meaning of in-house asset is set out in Section 71 of the Act, is very wide but also excludes a range of particular assets.
Section 67 of the SIS Act contains a provision against borrowing except for very limited purposes.  Again, there are exceptions available and Section 67A refers to “limited recourse borrowing arrangements”.  This exception basically states the money borrowed has been applied for the acquisition of a single acquirable asset, the acquirable asset is held on trust, the SMSF has a right to acquire legal ownership at some point of time and the rights of the lender against the SMSF trustee are limited to rights relating to the acquirable asset.
Section 67 as very broadly outlined above is the section under which parties buy property in their SMSF.
We discuss the details of these borrowings and the way a contract must be drafted in part 2.
Should you require any further detail in relation to any issue raised above please do not hesitate to contact our Property & Commerical department manager, Jessica Kimpton.
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Attwood Marshall Lawyers Property & Commercial Partner Barry van Heerden discusses the types of borrowing by Self-Managed Super Funds and their benefits in Part 2 of the series on SMSFs. In Part 1, we reviewed the legislation governing borrowing by self-managed super funds.
TYPE OF BORROWING
Firstly, a few comments relating to the type of borrowing by self-managed super funds.  The terminology used is “limited recourse borrowing” meaning the lender’s only security is the property purchased.  In other words, the rights of the lender against a self-managed super fund for default on the borrowing is limited only to the property purchased.
This is a significant issue for banks.  Traditionally banks required recourse over all of the borrower’s assets.  This is not allowed under self-managed super fund borrowings.
It is also usually bank practice to require related parties to give personal guarantees for borrowings.  In fact, many banks have been asking members of self-managed super funds to give personal guarantees.
The ATO has however flagged related party guarantees as a cause for concern.  The ATO has stated related party guarantees “may result in recourse being made to the assets of the self-managed super funds other than the asset required” and this will be contrary to the intent that the borrowing only applies to limited recourse borrowings.
CONTRACT
If the self-managed super fund has successfully negotiated a loan from a bank, it is necessary to consider the description of the Buyer in the contract.
The most common way and acceptable by the ATO is the purchase of the property in name of a bare trust acting for the self-managed super fund.
The bare trust holds legal title to the property on trust for the self-managed super fund.  The self-managed super fund has a beneficial interest in the property and a right to call for a transfer of legal title when the loan is repaid and the mortgage is discharged.
The bare trust must hold no other assets or business interest and its sole function must be to hold the property on trust for the self-managed super fund.  We note the ATO has indicated that a unit trust cannot hold an asset “on trust” for a self-managed super fund.
As mentioned the Buyer in a contract under these circumstances should be the Trustee of the Bare trust. In addition, we insist a special condition in the Contract stating the parties acknowledge the buyer is buying the property solely in its capacity as Bare trustee for the self-managed super fund.
The purpose of this special condition is to avoid any stamp duty implications in the future when the bare trustee transfer the property to the super fund. If the contract does not contain the special condition further investigations are required to provide evidence to OSR to confirm the intention of the bare trust was only to hold the property on trust for the super fund otherwise stamp duty may be payable again
DECLARATION OF TRUST
We highly recommend the parties to enter into a Declaration of Trust between the self-managed super fund and the bare trustee to avoid any doubt the bare trustee is acting solely as bare trustee for the self-managed super fund.
RELATED ISSUES
It is important for parties wish to buy property in their super fund to also consider the following and obtain financial advice:

The purpose of the purchase -residential or commercial;
If the property is going to be rent out. There are strict guidelines if the lessee is a related party and should preferably be avoided;
the return on the investment for the super fund. The return should be at least market related;
tax consequences of buying and renting property

Should you require any further detail in relation to any issue raised above please do not hesitate to contact our Property & Commerical department manager, Jessica Kimpton.
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When a workplace fatality occurs, often the family affected is not aware of WorkCover death benefits and other compensation they are entitled to, writes Compensation Law Accredited Specialist Jeremy Roche.
Despite the proliferation of occupational health and safety (OHS) laws and industry regulation, Australia has incurred an alarming spate of workplace deaths across the country.
According to Safework Australia, approximately 425 Australian workers have lost their lives in workplace accidents between 2017 and mid-2019.  The majority of these workers were male, employed in industries such as construction, agriculture, warehouse, mining, and transport.
The fatalities have been caused by catastrophic accidents such as agricultural machinery accidents, mining equipment accidents, construction/machinery accidents, forklift accidents, power tool accidents, falling from heights (eg. at a construction site), being crushed to death (eg. by a scaffolding tower that collapsed), electrocution or fatal wounding by moving objects.
Australians expect that with advances in OHS, safety regulation and technology, our workplaces should be safer than ever before – but too many Australians are being killed in workplace accidents, leaving behind devastated spouses and families.
Work fatalities in 2019 – every statistic a tragedy
Only recently, a 38-year-old father died after falling seven storeys at a Sydney construction site. Christopher Cassaniti, 18, was crushed to death when a 15-metre scaffolding tower collapsed on top of him, in April. Excavator operator David Routledge died at Middlemount Coal Mine after a wall collapsed onto his machine, in June. And in July, a 46-year-old father was killed in a machine at Australia’s largest goat abattoir.
These tragic cases are but a handful. A high number of workplace fatalities (approx. 150-200 per year) might indicate that some employers (and industries) are too lax in their safety procedures and their duty of care to their own employee safety and welfare. In a recent survey of the Australian Council of Trade Unions, 80% of the 26,000 respondents indicated that they do not think that Australian workplaces take safety seriously enough.
Australians killed at work leave behind families who suffer insurmountable grief and in many cases, psychological injuries of their own.  Compounding their anguish, the families usually also suffer enormous (often lifelong) losses from their dependence on that deceased worker to provide income and services to their family.
In Australia, there is no compensation claim available specifically for the fatality itself. The spouse and family (ie. “dependants”) can make a Statutory Benefits Claim (WorkCover death benefits) and potentially a Common Law Negligence Claims with respect to their losses suffered as a result of workplace deaths.
It is our experience that claimants are not fully aware of their legal rights when it comes to claiming WorkCover death benefits or Common Law Negligence Claims.
WorkCover death benefits – Statutory Benefits Claims
In the case of a workplace fatality, the family members (“dependants”) of the deceased can make a claim for reasonable funeral expenses, a lump sum death benefit, and/or periodic payments to each child of the deceased worker up to the age of 16 (or to ages 16-25 if the child is undergoing full time education and not working).
These benefits are payable on a ‘no-fault’ basis (ie. regardless as to whether the fatality was caused by negligence). Due to stringent workplace safety laws, most fatal work accidents are caused by negligence on behalf of the employer or another party and a common law claim is available.
Common Law Negligence Claims
The dependants are also entitled to make a common law damages claim for compensation in circumstances where the death was caused by negligence (eg. an unsafe system of work).
Common law dependency claims are claims made by the dependants in the one legal action and the damages are split between the dependants in accordance with their individual level of dependency on the deceased.
The settlement of any common law dependency claim involving compensation awarded to minors (ie under age of 18) will require the sanction of the court or public trustee to ensure that the settlement if fair and reasonable to each minor. Those funds will thereafter be held on trust until the minor reaches adulthood.
WorkCover death benefits – what to do
Workplace deaths are devastating and it is important to grieve and ensure that you are surrounded with support – whether it be through family members, psychological assistance, or other means.
To lodge a claim with Workcover, you will need the death certificate, birth certificates of each dependant, marriage certificate (or other proof for a de facto) for the spouse, funeral expense documents, and tax or income documents demonstrating the income of the deceased.
Workplace death and dependency claims are complicated with respect to both the statutory benefits claim and the common law claim – the earlier you speak with a specialist lawyer the better.
It may be easier to have a family member or friend be the first point of contact to obtain some initial advice on your behalf. Phone us on 1800 621 071 if you need help with WorkCover death benefits.
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Euthanasia in Queensland and NSW are a sensitive topic. Legal Practice Director Jeffrey Garrett recently spoke to 4CRB community radio about this emerging area of law and how you can best plan your end-of-life journey.
What is euthanasia, or ‘voluntary assisted’ dying?
Voluntary assisted dying is administering medication for the purpose of causing death in accordance with the steps and process set out in law. Voluntary assisted dying must be voluntary and initiated by the person themselves.  It is considered to be only for those who face an inevitable, imminent death as a result of an incurable disease, illness or medical condition.
Legal euthanasia – Victoria and Western Australia
Victoria is the first state in Australia to pass voluntary assisted dying laws. The Voluntary Assisted Dying Act (2017) provides a safe legal framework for people who are suffering and dying to choose the manner and timing of their death. With comprehensive safeguards and rigorous protections, the process for accessing voluntary assisted dying in Victoria is considered to be the most conservative in the world, according to the Labor-led Victorian Government.
As at August 28, 2019, 11 terminally-ill Victorians have received approval to end their lives using government-endorsed medication through Australia’s only voluntary euthanasia schemewhich  came into effect on June 19. Similar laws look increasingly likely to pass through Western Australia’s Labor-led Parliament. The Western Australian bill is based on the Victorian model, passed in 2017, and if passed would make WA the second state in Australia to legalise the practice.
What is the criteria for euthanasia under proposed and actual laws in Victoria and Western Australia
– Under the proposed laws for WA, a person would have to be 18 or over to qualify for voluntary euthanasia
– They would have to be terminally ill with a condition that is causing intolerable suffering and is likely to cause death within six months or 12 months for a neurodegenerative condition
– The person would also have to be an Australian citizen or permanent resident and have been a WA resident for at least 12 months
– The person has to make two verbal requests and one written request
– Those requests would have to be signed off by two doctors independent of each other
– There would be a minimum of nine days between the initial request and final approval
– The choice of lethal medication would be a clinical decision from an approved list of drugs
– Self-administration would be the preferred method
– In a departure from the Victorian regime, a patient could choose for a medical practitioner to administer the drug
– In Victoria, a doctor can only administer the drug if a patient is physically incapable
What do doctors think about euthanasia laws?
The Australian Medical Association (AMA) of WA is opposed to voluntary assisted dying laws in WA,  accusing the Government of rushing the process. “Currently in WA it can be difficult to get out of an ambulance into a hospital because of ambulance ramping, it can be difficult to get can cancer surgery in less than 30 days,” AMA WA president Andrew Miller told media. “And now what they’re proposing is you can be dead within 10 days of seeing a euthanasia doctor and getting only one other opinion.”
Voluntary assisted dying laws in Queensland
In the other states, including Qld and NSW, euthanasia is being considered but it not legalised. In November 2018, Queensland Labor Premier launched a 12-month inquiry into the legalisation of voluntary euthanasia as part of a parliamentary inquiry into the delivery of aged care, end of life and palliative care in Queensland across the health and ageing service sector. The inquiry will canvass the Queensland community and health practitioners’ views on the desirability of supporting voluntary assisted dying, including changing the law to legalise euthanasia, and safeguards to protect vulnerable people. Submissions made to the Royal Commission into Aged Care will also be considered.
Voluntary assisted dying laws in NSW
In August 2019, media reported that the NSW Liberal-led Government would, from the fall out from the abortion debate- would “steer clear” of debates around voluntary assisted dying. In 2017, the upper house debated a bill to make it legal for terminally ill NSW residents aged 25 or over and expected to die within 12 months to end their own life with medical assistance. The Bill was narrowly defeated and the NSW Premier said she did not think community attitudes towards voluntary assisted dying had changed since.

Contentious issues around voluntary Euthanasia
There are people who are violently opposed to it on religious grounds, and people who oppose it purely on their choice. There are also people who are very strongly in favour of it, particularly those who have had family members who have suffered a debilitating and prolonged illness and have had to deal with that firsthand. Andrew Denton is a very prominent high profile personality who is very passionate about voluntary euthanasia because of what he went through with his father.
Just about everyone has a story of a family member being affected by these issues and its easy to understand why you get such a polar difference in people’s views. Anyone who has gone through a close family relative suffering with an incurable illness will usually fall in favour of this legislation provided its got the appropriate safety net around it to ensure that you are not going to have things happening that result in someone dying unnecessarily.
I’m in favour of it. I’ve been through this with my own family and acted for people over the years and been involved with families where this has happened. I just think that if the legislation is carefully thought through, covers all the bases in relation to making sure that no one does this irrationally or without careful thought, where it’s a definite case of that the medical condition is going to catch up with them, I don’t see any problem with it.
Legal issues around voluntary euthanasia
Insofar as the legal issues are concerned, there may be some issues in relation to anything that is done wrongfully but by definition, the legislation changes that because it pretty much gives the stamp of approval legally to someone doing it. There could be issues in relation to inheritance law. Sometimes if you are involved in the deliberate death of someone it can come against you in
terms of inheriting from that person who you have had something to do with their death. But overall I don’t see that there are any great legal issues that deal with it and if there are it’s usually dealt with in the legislation.
What is an Advance Health Directive?
An Advanced Health Directive is a document that states your wishes or directions regarding your future health care for various medical conditions and it comes into effect only if you are unable to make your own decisions. You may wish your directive to apply at any time when you are unable to decide for yourself, or you may want it to apply only if you are terminally ill.
A good example of this is where someone does not wish to have certain treatment due to strong opinion on the subject or religious beliefs (certain religions forbid blood transfusions).  You can specify whether or not you are to be resuscitated in certain circumstances and also give instructions to your family regarding life support and other issue.
What do I need to consider before making an Advance Health Directive? 
You should think clearly about what you would want your medical treatment to achieve if you become ill.  For example:

If treatment could prolong your life, what level of quality of life would be acceptable to you?
How important is it to you to be able to communicate with family and friends?
How will you know what technology is available for use in certain conditions?

If you wish to complete an Advance Health Directive, you will need to consult with a doctor in relation to the document.
Can I request Euthanasia?
The purpose of an Advance Health Directive is to give you confidence that your wishes regarding health care will be carried out if you cannot speak for yourself.  However, a request for euthanasia would not be followed, as this would be in breach of the law.  Under the Queensland Criminal Code, it is a criminal offence to accelerate the death of a person by an act or omission.  It is also an offence to assist another person to commit suicide.
What do I do with my completed Advance Health Directive? 
You should keep it in a safe place, and you should give a copy to your own doctor, to your attorney for personal/health matters if you have appointed one, to a family member or friend and, if you wish, to your solicitor. If you are admitted to hospital, make sure the hospital staff know that you have an Advance Health Directive and where a copy can be obtained. You may also wish to carry a card in your purse or wallet stating that you have made a directive, and where it can be found.
How often should I update my Advance Health Directive?
It is strongly recommended that you review the document every two years, or if/ when there is a major change in your health status (e.g. if you are diagnosed with a serious illness). For all enquiries regarding an Advanced Health Directive, phone 1800 621 071.
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Newly released data which shows a spike in motorbike fatalities on Queensland’s roads is a tragic reminder for drivers to increase their vigilance around motorcyclists.
An Australian Road Deaths Database report released on August 19, shows that in July there were 20 road deaths in Queensland, and eight of those fatalities were motorcyclists or pillion riders.
In June, there was one motorcyclist death, and in May there were five. Every statistic is devastating and should serve as a critical reminder for motorists to exercise caution.
Compensation Law for motorbike injuries
At Attwood Marshall Lawyers, the most frequent motorbike crash compensation claims we handle are for broken bones, torn ligaments, head and spine injuries.
When a rider does die, compensation to the family, to the widow or dependent children is possible for nervous shock.
Sadly, it’s always a tough legal fight against the insurers to get this compensation.
READ MORE: Frequently Asked Questions about a motorcycle crash claim in Qld
Peter Watkin’s crash in 2015 – a car crossed two lanes and smashed into him.
Lucky to be alive – Peter Watkin’s story
By his own account, Gold Coast man Peter Watkins was “split in two” in a motorcycle crash at Nerang on January 3 in 2015, when he was coming home from Mount Tamborine.
A driver veered across two lanes and smashed into Peter, 58, while his 26-year-old son watched the carnage from a few hundred metres behind.
The driver of the other vehicle failed to give way and did not see Peter when he was turning.
On impact, the father-of-two sustained horrific injuries, including a pelvis which was broken in two.
He suffered two cardiac arrests in the ambulance, had six weeks in a coma, a year in and out of the hospital and had to walk again.
The first time Peter Watkins was able to stand.
The crash has had a devasting impact on Mr Watkin’s life. He has not been able to return to work as a cabinet maker or to riding – a hobby he was passionate about for many years.
Since the accident, Mr Watkins has encouraged drivers to wear high vis clothing and high vis helmets to be more visible on the roads.
A high vis helmet Peter Watkins suggests for motorbike riders.
He said drivers should check their blindspots, indicate, and younger and inexperienced riders should take particular precautions.
Motorbike crash and fatality statistics
• Australian road fatality data shows that in the 12-months to July, 208 motorcyclists were killed, 14 more than previous period last year
• In the first 7 months of the year, there have been 27 motorcyclist deaths in Qld
• For month of July 2019, there were 20 road deaths in Qld, 8 of those were motorcyclists or motorcyclist pillion passengers (40%). Their ages ranged from 28 to 52 years.
• In June there was one motorcycle death, in May there were five motorcycle deaths
• Crashes in July occurred mostly in major cities and inner regional areas
Source: Australian Road Deaths Database
the date of access 22 August 2019. The data is sourced from the Queensland Department of Transport and Main Roads.
Disclaimer: Road deaths from recent months are preliminary and the series is subject to revision.
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Experienced estate litigation solicitor, and Attwood Marshall Lawyers Senior Associate, Lucy McPherson, discusses the Will contest over Bob Hawke’s estate.
Two months after the death of Bob Hawke in May of this year, his daughter Rosslyn Dillon is preparing to take legal action against his second wife over his Will.
Mr Hawke reportedly gave $750,000 to each of his three children, including Ms Dillon, but left the rest of his estate, including the proceeds of the sale of his $15 million home on the water in the Sydney suburb of Northbridge to his widow.
Ms Dillon claims she has been left without adequate provision from her father’s estate. Ms Dillion has engaged lawyers to bring a family provision claim against Mr Hawke’s widow in relation to his multi-million-dollar estate.
What is a family provision claim?
In simple terms, a family provision claim is where an eligible person makes an application to the Court for a portion or larger portion of a deceased person’s estate in circumstances where they have not been adequately provided for under the terms of the Will.
Family provision law is very established law. It has been around for over a century in both New South Wales and Queensland.
Family provision Law is heavily grounded in the notion that we have a moral duty or obligation to make provision for certain people in our lives when we die.
In the case of Bob Hawke, Ms Dillon is claiming that the amount of $750,000 is not adequate provision for her in the circumstances.
Who can bring a family provision claim?
Not just anyone can bring a family provision application. Only certain categories of people defined under the legislation are eligible to apply to the Court for a family provision order.
In New South Wales, the following are “eligible persons” who may apply to the Court for a family provision order:

a) a wife or husband of the deceased person;
b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death;
c) a child of the deceased person (including an adopted child but not including a stepchild. For a stepchild to be eligible they must also demonstrate dependency on the deceased person – see discussion below);
d) a former wife or husband of the deceased person;
e) a person:
who was at any particular time wholly or partly dependent on the deceased person; and
ii. who is a grandchild’s of the deceased person or was, at any particular time, a member of the household of the deceased person;
f) a person with whom the deceased was living in a close personal relationship.

A “close personal relationship” is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, who are living together, one or each of whom provides the other with domestic support and personal care.
As a child of Mr Hawke, Ms Dillon is eligible under the New South Wales legislation.
What about in Queensland? Who is eligible to apply for a family provision order in Queensland?
In Queensland, the following are “eligible persons” who may apply to the Court for a family provision order:

a) a spouse (including a husband/wife, de facto partner, civil partner or dependent former husband or wife or civil partner);
b) a child of the deceased person (including a stepchild or adopted child); and
c) a dependent of the deceased person.

A “dependent” of the deceased person means:

a) a parent of the deceased person; or
b) the parent of a surviving child of the deceased person under the age of 18 years; or
c) a person under the age of 18 years;
who was being wholly or substantially maintained or supported by the deceased person at the time of the deceased person’s death.

Some of the legislative definitions in this area of law are complicated so it is important to seek specialised advice.
What will the Court take into account when deciding whether or not to make an order for family provision?
Once eligibility is established, the legal test applied in family provision applications is, in summary, as follows:

whether there is inadequate provision for the applicant’s proper maintenance, education and advancement in life under the Will of the deceased or the intestacy rules (this is a question of fact although it necessarily involves some value judgment); and
if so, what if any, provision ought to be made out of the estate in favour of the applicant (this is a discretionary exercise).

The Court will examine all relevant circumstances. In particular the following matters are relevant for the Court’s determination of the two-stage test as set out above:

the nature and quality of the relationship between an applicant and a deceased;
the nature of the moral obligations or responsibilities owed by the deceased person to the applicant or a competing claimant (a beneficiary of the estate);
the size and nature of the estate of a deceased;
the nature and extent of the applicant’s present and reasonably anticipated future needs, including financial and health-related needs;
the nature and strength of the claims to testamentary recognition by a deceased of those taking benefit under a deceased’s Will;
any contribution, financial or otherwise, direct or indirect, by an applicant to the property or welfare of the deceased person;
the character and conduct of the applicant;
any provision made for the applicant by the deceased person (either during the deceased person’s life or after);
evidence of testamentary intentions of the deceased person; and
whether the applicant was being maintained by the deceased person.

This discretionary exercise, in which the Court considers all of the facts and circumstances, is undertaken to evaluate what provision community standards would require a person in the position of the deceased person to make for the applicant.
If you think you are eligible to contest an Estate and would like further advice please contact our Department Manager Donna Tolley, on direct line (07) 5506 8241 or by email on [email protected] to arrange an appointment.

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Commercial Litigation solicitor, Georgia Taylor explain what legal steps you can take if you’ve have been affected by the Ralan Group collapse.
On 31 July 2019, one of the largest development companies in Australia, Ralan Group Pty Ltd’ (Ralan Group) and its more than 50 subsidiary companies were advertised as being in voluntary administration.
It was known at the outset of the administration that the businesses run by Ralan Group would be conducted “business as usual”, giving a glimmer of hope for the some 1800+ off the plan contract holders. But with that said, how is it with the newly built ‘Ruby Apartments’ and more than 50% of off the plan apartments already sold, did Ralan Group get into so much strife?
Ralan Groups inevitable demise is now suspected to be from promising off the plan purchasers’ ‘interest’ on their deposits at an estimated rate of 15% which the group was likely unable to meet along with skyrocketing overheads.
In a letter published by the Ralan Group liquidators, Philip Campbell Wilson, Graham Killer and Said Jahani of Grant Thorton Australia Limited dated 31 July 2019, most off the plan contracts were made with subsidiary companies, Ralan Capital Investments Pty Ltd (Administrators Appointed) or Ralan Arncliffe Pty Limited. This letter has identified that some purchasers chose to release their deposits to these companies as an ‘unsecured loan’ whilst others, chose to keep their funds in a ‘trust account’ administered by the group.
This puts the prospective purchasers into two groups, one being those whose deposits are now unsecured loans and others whose funds are held ‘in trust’. Whilst this is well and good, a voluntary administration is by no means a speedy process.
Rubi and Sapphire apartments – voluntary administration
Typical steps taken in a voluntary administration we explain below.
As a director of a company, you have a duty under the Corporations Act 2001 (Cth) to ensure that at all times, your company is trading solvently. In simpler terms, the company must be able to pay its debts.
If the company is in financial strife a process you can undertake as a director(s) is to (by resolution at a meeting of directors in writing) decide to appoint a voluntary administrator. A voluntary administrator is a person suitably qualified and accredited by ASIC, to administer affairs of a company that is possibly insolvent.
From the date of administration, a voluntary administrator must:

Hold a first meeting of the creditors within 8 days of being appointed (relevant exceptions apply);
Investigate the company’s affairs and report to creditors;
Hold a second meeting of the creditors within 25 business days of being appointed (relevant exceptions apply) of which the creditors can decide, upon receiving advice from the administrators to:

Return the company to control of directors: This is a resolution made and recommended by an administrator when a company can be returned to the directors’ solvent;
Accept a deed of company arrangement (DOCA): This is an agreement made to creditors to accept ‘cents on the dollar’ for the monies owed to them, to allow the company to be returned to the directors’ solvent and operational;
Put the company into liquidation: If the company cannot be returned to solvency and a deed of company arrangement is not passed or feasible, the company will be placed into liquidation with a view to be wound-up.

Unfortunately, the process isn’t as easy as it seems. As an administrator you must within the time of the two meetings for creditors, conduct a thorough investigation into the company’s affairs, manage, if possible, the continuation of the business that company conducts and form a report to creditors with a recommendation of how the company should proceed (3a-c above). This leaves administrators with a taxing job along with the additional obligations to manage the concerns and questions of anxious creditors.
Rubi and Sapphire apartments – what should buyers do now?
Locate and review your contract
It is important as a creditor to conduct your own enquiries and seek legal advice about your rights so you may be informed as to your likely financial position in each possible resolution likely to be passed at the second creditors meeting.
As a purchaser of an apartment under the Ralan Group, you must first review your contract. Your ‘off the plan’ contract will (or should) have clauses relevant to the developer’s administration or insolvency event. This clause or section of your contract will hopefully identify for you what your rights are in these circumstances. As identified, this will be different for the two groups of purchasers being those with their funds in ‘trust’ and those with their funds released to the respective company.
Contact the administrator
As a purchaser with your funds in trust, the terms of your contract will be particularly important because administrators will be looking to the agreements to know how to appropriately deal with the funds. In the letter from Grant Thorton, the administrators will deal with each deposit held in trust on a case by case basis. In this instance, you should contact the administrators immediately and ask what they require to prove your claim. The documents will likely include your contract and a proof of payment to the respective ‘trust’ account.
Unfortunately, if you are a purchaser who has released their funds, you will likely be deemed an ‘unsecured creditor’. Whilst each creditor will be dealt with case by case and pursuant to their respective contract, it has already been revealed that most monies released to the group have been spent. As an unsecured creditor, you will be the last to receive a ‘dividend’ of any monies leftover in a worst-case scenario.
Seek legal advice for the best outcome
It is early days of the Ralan Group administration and recent reports show that prospects for creditors are dim, however, it’s not over yet. Should you wish to seek legal advice about your prospects and position under the Ralan Group administration, please contact Amanda Heather, Attwood Marshall Lawyers Commercial Litigation Department Manager &Senior Paralegal on Direct line: 07 5506 8245, Mobile:  0425 260 837 or Email: [email protected].
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