Attwood Marshall

Attwood Marshall Lawyers estate litigation solicitor, Melissa Tucker, responds to commonly asked questions about how can you contest a Will. In which situations can you contest a Will? People contest a Will for many reasons not related to a challenging the validity or contesting like family provision.  It is an unfortunate reality that disputes arise after the death of a loved one. ‘Disputes’ are often an argument as to what the will meant; how the will is being administered or distributed; whether there are errors in the Will; whether a beneficiary named in the Will is not entitled because of a crime committed; removal of an executor or administrator or other disputes about the use of a ‘power of attorney’ during the deceased lifetime. There are four different types of Will challenges: On the grounds someone didn’t have mental capacity to make a Will Will maker didn’t have knowledge or approve a Will Will was written under the influence of others Will was fraud or forgery When can you contest a Will because the Will maker did not have mental capacity to make a Will? This is a difficult area, and in many instances, family members simply obtain a Medical Certificate from a treating General Practitioner.  This cannot always be relied upon as being conclusive in relation to whether someone has testamentary capacity.  It is quite a complicated process to understand the relevant issues and ensure that the person making the Will has the required testamentary capacity. All adults are presumed to have capacity, unless the contrary is established, in court and is for a judge to determine. No one can stop any person from writing his or own will, with or without cognitive impairment, and it is only after the death of the will maker that a judge will be asked to determine whether or not the will is valid. Solicitors have a duty to ensure the client has the requisite legal capacity before either taking instructions or assisting them to make a will. The legal test for establishing testamentary capacity is well-established with little change since it 1870 inception in Banks v Goodfellow. The test established by Banks v Goodfellow must be brought to bear on ‘existing circumstances in modern life. The adaption of the test to modern life requires that: The testator/testatrix must be aware, and appreciate the significance, of the act in the law upon which he/she is about to embark; The testator/testatrix must be aware, at least in general terms, of the nature, extent and value of the estate over which he/she has a disposing power; The testator/testatrix must be aware of those who may reasonably be thought to have a claim upon his/her testamentary bounty, and the basis for, and nature of, the claims of such persons; and The testator/testatrix must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons. The assessment of testamentary capacity is growing in complexity and increasingly demands an interdisciplinary approach which utilises the skills of legal and medical professionals. Can a person with dementia make a Will? There are many thousands of people in society who would be attempting to write a will either with or without a solicitor’s assistance and many of these will makers may have dementia. Another term used for lack of mental capacity is “cognitive impairment” which greatly increases from the age of 65. Dementia is described as a chronic or persistent disorder of the mental processes caused by brain disease or injury and marked by memory disorders, personality changes, and impaired reasoning, a chronic or persistent disorder of the mental processes caused by brain disease or injury and marked by memory disorders, personality changes, and impaired reasoning. According to the Australian Bureau of Statistics one in 15 people over 65 – increasing to one in four people over 85 – suffer from dementia. It is also estimated that each week in Australia 1600 new cases of dementia are diagnosed, a figure expected to grow to 7400 a week by 2050. Give an example of where a Will was challenged because a Will-maker had dementia or no capacity Let’s take for example, a Will maker in their late 90s with dementia, where a carer, friend or other family member has organised for a Will to be signed (in their favour), when it appears the will maker is not really in a position to understand and approve that will. The Will maker may be paranoid or delusional and making a will that’s influenced by their delusions to the effect he or she did not possess the required mental condition at law to be able to make a will. In this instance Courts would need factual evidence to prove the will maker lacked mental capacity at the time the will was signed. However sometimes there is no factual evidence that exists to prove this. Family members may be absolutely convinced, for example, their mother or father did not have mental capacity at the time the will was signed. But if there is insufficient factual evidence you will not be able to convince a judge. It is for this reason, doctors often give evidence of what they observed many months or even years before the signing of the will but if the patient (will maker) was ‘in and out’ of mental capacity from time to time the doctors evidence may be uncertain and insufficient to prove the will makers lack of knowledge and approval. Can you contest a Will because a will-maker did not have full knowledge of his/her approval? Similar to lack of mental capacity and sometimes they are both conducted in the course of a hearing before a judge at the same time if a will maker did not have the required mental capacity to make a will (also known as lacking testamentary capacity, mental capacity) then clearly that will maker would not have the knowledge nor given his or her approval to the will because they were incapable of doing so at law. However lack of knowledge and approval can apply when a will maker does have testamentary capacity and for example could occur when a will maker of sound mind has signed a will not fully understanding its contents and thereby not giving his or her approval to the will. Take for example where the judge has decided that the will maker did indeed have testamentary capacity but then goes on to look at the evidence as to whether the will maker did not have knowledge of the contents of the will and therefore did not give approval to it. In such a case the judge might decide that the will maker was mentally capable of making a will but at the time of signing the document he or she did not understand the contents. The rules regarding the preparation and signing of a will are very important in society to ensure the correct transfer of the assets to the person or persons intended by the deceased. Can you contest a Will because of elder abuse? As I mentioned earlier, it is possible to contest a Will on the grounds that the will was written at a time when the will maker was being unlawfully influenced by others. HOWEVER: Challenging the validity of a will on the grounds of undue influence (alone) is extremely difficult to win and accordingly very few cases have ever been successful. Sometimes this challenge is alleged together with and at the same time as lack of mental capacity and lack of knowledge and approval because all three allegations are often every closely related and the same evidence is used in relation to each challenge. Over the past 100 years only three cases have been successful; one each in NSW, Victoria and Queensland. The onus of proving undue influence rests upon the person making the allegation and he/she must prove beyond doubt that the deceased will maker at the time of signing the will was actually unlawfully influenced. The two biggest hurdles to overcome is firstly the fact the will maker is no longer available to give evidence and secondly the influence alleged would have to be around the time of the signing of the will. In these cases, common sense does not prevail. You and I may be fully aware that family member/s or a friend or carer has influenced the will maker by continually asking to be left in the will or even making threats about not looking after the will maker in his/her old age unless included in the will. However at law this type of influence is not sufficient to win the case. The influence required is actual duress (force) almost like holding a gun to the head of the will maker. Very surprisingly, badgering the will maker is not regarded as undue influence. Continually harassing the will maker to include you in his/her will even to the extent of taking the will maker to your solicitor is certainly wearing him/her down however is not (in wills law) ‘undue influence’. There is some good news. When all of the evidence is before the court regarding lack of mental capacity, lack of knowledge and approval and undue influence sometimes there is sufficient evidence for a judge to determine the will is invalid for one or more reasons. Can you contest a Will because of forgery? Challenging the validity of contesting a Will on these grounds usually does not involve the will maker. The allegation of course is that the will being challenged is not that of the deceased at all. The onus of proving the fraud or forgery rests upon the person/persons making the allegation. The evidence required is usually from one or more experts in the field of handwriting, pencil, ink, paper, photocopy machines and any other evidence proving a fraud or forgery. Can anyone challenge or contest a Will? The only person/s entitled who can contest a Will on the basis of its validity is either someone named in a previous Will or someone who would be entitled to an inheritance under the rules of intestacy. Although the laws of intestacy differ slightly from state to state, the order of entitlement on intestacy is usually as follows: Your spouse or de facto spouse Your children (and grandchildren if a child has predeceased you); Your parents; Your siblings (including any half siblings); Your Grandparents; Your Aunts & Uncles. How long does it take to contest a Will? Depending upon the complexity of the case, it could possibly take 9 to 12 months for settlements to be approved by the court and possibly 12 months to 2 years or more for a court hearing. Who pays for the costs with contesting a Will? The big issue in these cases is the legal costs involved. Unlike family provision cases, there is very little discretion by a judge (at the end of a case) when considering who should pay the legal fees. There is always a huge risk of losing a will challenge case no matter how much evidence you think you have. The law, with few exceptions, is that the legal fees of both claimant and defendant are to be paid by the loser. One exception to that rule is if the judge considers that proceedings although unsuccessful were really commenced as a result of something the deceased had done that caused those proceedings to be commenced and for the need of a judge to make a determination. As a rough guide there are two extreme scenarios. Firstly, a very simple challenge with all parties agreeing to an application for the judge to approve the cost could be anywhere between $20,000 and $50,000. Secondly, a complicated challenge with lots of witnesses and a five day hearing in court anywhere between $200,000 and $500,000. Thirdly, somewhere in between. How can Attwood Marshall Lawyers help with contesting a Will? If you wish to challenge 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 challenging a will or 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 inquiries regarding Challenging or Contesting Wills on a “No win No Fee Basis”, please contact the Department Manager Donna Tolley, on direct line (07) 5506 8241 or by email on dtolley@attwoodmarshall.com.au. The post How can you contest a Will? – Wills and Estates Law – Podcast appeared first on Attwood Marshall.

Listen to our podcast with Legal Practice Director Jeff Garrett  where he discusses the problems associated with doing your Will with the Public Trust Office or the NSW Trustee & Guardian.  It could cost you hundreds of thousands of dollars…or more! It seems everyone is after something for free these days. A recent post on social media where someone asked about getting a Will done cheaply resulted in literally hundreds of people providing backyard advice about where to get a ‘free’ Will. The standout suggestions were to go to the Public Trust Office where they will do your Will for ‘free’ or to do a do it yourself Will-kit. Although there were a couple of people who provided sage advice to obtain proper legal advice and get a valid Will prepared, it seemed that most people were only interested in getting something done for free. A public speaker for the QLD Public Trust Office recently boasted that in the last financial year they prepared over 28,000 ‘free’ wills and the main incentive for members of the public was that it was ‘free’ – they had also administered over 2,500 estates and were acting as administrator in over 9000 matters. That is big business for the QLD Government! We have had a lot of experience with so-called free Wills involving the Public Trust Office (Qld) or the NSW Trustee and Guardian. They are both state Government instrumentalities that look after people who have lost capacity or who cannot manage their own financial affairs. They also look after jail inmates’ affairs. Another function which they promote is to act as executor in the estates of people who make their Wills with them. Executors are the appointed representatives of the deceased who are responsible for obtaining Probate of the will and administering the estate (i.e. calling in the assets and distributing to the beneficiaries) and although they do the Wills free of charge, they have a significantly high set of fees and charges that they take out of the estate after the person dies and they administer the estate assets.Although the charges are on their website, they are very difficult to understand and at least some of the fees are calculated on a percentage basis of the value of the assets. We have experienced many problems with both the Public Trust Office (PTO) in Queensland and the NSW Trustee and Guardian (NSW TAG). Some of the matters that we have directly dealt with on behalf of families of deceased estates include the following:- Theft of assets by Trust Office staff We have acted in matters where there was theft of assets of the deceased by PTO staff either during the management of their affairs while they are alive or after they have died. You may recall the reported stories of Public Trust Office employees rifling through the houses of deceased clients just after they have passed away and taking valuables before the family could get into the house. There were certain employees of the Southport Public Trust Office who were jailed for stealing from deceased estates. We also had matters where beneficiaries sued the PTO to recover damages for valuables that had been ‘misplaced’ or stolen; Delay and inaction by Trust Office staff Beneficiaries and family members have complained that the administration process takes far too long to conclude and that assets of the estate (e.g. the family home) are basically left to go to rack and ruin due to the inaction of the Public Trust Office. Likewise, other assets of the estate, including shares and other investments etc. were basically sold with the cash put into low yielding Government bonds (this is obviously a conflict of interest where they favour Government investment entities). In situations where prompt and decisive action was required to preserve the assets of the estate, the public servants responsible for the management of the estate have often done nothing to rectify situations or have delayed any action for so long that the value of the assets are substantially reduced; Charging exorbitant fees to the estate and failing to properly disclose this to the public The Public Trust Office and the NSW TAG charge their fees on a number of bases but it usually includes a percentage of the value of the assets under management. There are also other specific charges relating to certain steps in the administration based on a scale of fees but it is the percentage of the value of assets under management that usually racks up the most costs. In most cases, the administration of the estate is handled by unqualified public servants, who in many cases, charge an hourly rate that is higher than many lawyers! These fees are not properly disclosed to people having their ‘free’ wills done, nor are the ramifications of appointing them as executor. On the other hand, Lawyers are required to disclose in writing full details of their charges and must also provide a written notice if they are appointed as an executor or co-executor; Poor communication with the family and beneficiaries (and lawyers) One of the biggest complaints from families and beneficiaries is that they do not receive any or enough adequate communication from the Public Trust Office or NSW TAG concerning the affairs of the estate and/or the management of the financial affairs of the deceased prior to their death. We constantly receive complaints from our clients that their phone calls, letters, emails, faxes are unanswered. When they do finally get to speak to someone about it they are treated very rudely and basically are told that they are not entitled to any information and that they will just have to wait until the estate is finalised. If you are a residuary beneficiary in an estate you are entitled to have regular reports from the executors about the progress of the administration of the estate. You are also entitled to a full accounting of the estate and any financial dealings concerning the assets of the estate. Another issue is the high turnover of staff and having to deal with several ‘officers’ during the course of the matter. The inevitable loss of information and further delay are very frustrating to family members. We also experience problems in communication with both entities and their in-house legal arms (especially so for the NSW TAG). There is a high turnover of staff and they constantly say they are under-resourced. This increases legal costs in having to repeatedly follow up unanswered correspondence and phone calls; Failing to proactively resolve disputes Handling of disputes or contentious issues within the estate are ignored or a very passive attitude taken. There seems to be a common theme that where there is a claim brought against the estate or a dispute amongst the beneficiaries concerning the distribution of certain assets, this results in the Public Trust Office or NSW TAG referring the matter in-house to their legal division. The legal division then charge the estate legal fees to “handle the claim”. In many cases there are criticisms of the in-house lawyers for both institutions in that they simply let the matter proceed to trial and charge the maximum fees with respect to the ongoing Court matter. In some cases the beneficiaries or families in the dispute have complained that there is no real wish to resolve the matters in dispute and their preference is then for the matter to proceed to trial (which results in higher fees to the PTO or NSW TAG); Failing to draft proper Wills in order to avoid potential disputes or properly deal with assets Inappropriate “simple Wills” prepared for an unwitting public who do not know what their circumstances require. The majority of the Wills that are done by the Public Trust Office or NSW TAG are quite simple Wills and in many cases do not take into account the assets of the deceased in a proper way. For example, if a person has companies and trusts and is also in a second marriage with children on both sides, a simple Will is obviously not going to properly deal with all of the estate planning issues. Unfortunately, the unqualified public servants who draft the Will are not lawyers working in this area and do not properly understand estate planning. Having said this, there are many lawyers who do not properly understand estate planning as well but it is more than likely that if you obtain a “free Will”, it is only going to scratch the surface when it comes to proper estate planning. These are just some of the issues that we regularly encounter in dealings with the Public Trust Office and NSW TAG. It is by no means exhaustive and we have been involved in many Court cases involving both institutions. We caution people who are considering having a free Will done with either of these entities and we strongly suggest that you do not under any circumstances appoint them as executor in your estate. If an estate is contested or court applications are required to remedy problems with the will, this could cost the estate and the family members hundreds of thousands of dollars in legal costs. In most cases, these costs are paid from the estate assets. There are many other options in relation to appointment of executors to administer your estate. If you are concerned about having someone who is independent, another option is to appoint a lawyer as a co-executor with one or two of your family members to ensure that the administration of your estate or the handling of your affairs as attorneys is carried out in a proper fashion. Many people mistakenly believe that appointing a lawyer will cost a huge amount of money for them to conduct that role but this is not true. In many cases people take the administration of the estate to the lawyers who drafted the Will in any event and pay them fees to obtain Probate and assist them with the administration of the estate. Although the Probate costs in NSW are based on the value of the assets in the estate, most other work is carried out at the usual hourly rate charges. Lawyers are required to provide fee estimates and a Cost Agreement before commencing the work. If you have a lawyer as a co-executor, more often than not they do not charge any commission and simply charge for the usual work that they would have done had you engaged them as your lawyers anyway. In this respect you technically get a “free lawyer” as a co-executor on the basis that the lawyer would have performed that work anyway had you engaged them. Another advantage of having a lawyer as an executor or co-executor is that they hold compulsory indemnity insurance and are covered by fidelity insurance with respect to their trust account. This means that if they make a mistake or are negligent, there is insurance to cover any losses to the estate. In the unlikely event they take off overseas with the trust account money, this is also covered by the fidelity insurance. This would not be available if it was a relative who was not a professional. Obtaining Probate and administering the estate of deceased persons is becoming a very complex area with taxation issues for both the estate and the beneficiaries, including possible capital gains issues if there are properties involved. If the estate involves other entities such as companies, trusts and self-managed superannuation funds, it can become extremely complex to properly unwind all of the assets and ensure that they are paid to the proper beneficiaries. In many cases the lawyers need to consult experienced accountants in this area to ensure that the outcome of the distribution of the estate assets is done in the most tax effective manner possible. Another area of concern is in relation to insurance policies held by the deceased. Despite the fact that binding nominations may have been made by the deceased in relation to payment of the proceeds of insurance policies, there can be disputes concerning the validity of these nominations which can end up with the matter being determined in the Superannuation Complaints Tribunal (SCT). Proceedings in this Tribunal are notoriously unpredictable and can cost the parties hundreds of thousands of dollars in legal costs. In many cases, legal costs are not recovered, even if you win the case. New complaints must be made to the Australian Financial Complaints Authority (AFCA). You can learn more about AFCA at www.afca.org.au. So, if you are interested in getting a “free Will” with the Public Trust Office or the NSW TAG, you should think very seriously about having the Will done with them and certainly not appoint them as executor of your estate. We regularly assist people who are dealing with the Public Trust Office and NSW TAG and have issues with them concerning family members or loved ones. The best way to avoid these problems is to have your Will done properly with an experienced estate planning lawyer. Attwood Marshall Lawyers have practised in this area for over 70 years and can assist you with a legally valid last Will and Testament. With proper advice you can avoid many of these issues. You are welcome to contact our office with any enquiries concerning estate planning advice.  Please contact our Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 to book your free 30 minutes estate planning review appointment with one of our dedicated Estate Planning lawyers. We have a dedicated Wills and Estates team that practices exclusively in this complicated area. Please click here to access our team brochure with details of our professional staff. The post There’s No Such Thing as a Free Will – Beware of the Public Trust Office! appeared first on Attwood Marshall.

The consequences of DIY Wills. You would be surprised by how many wealthy people die without a Will or don’t update their Will to suit a change in their circumstances. Senior Associate Melissa Tucker discusses the consequences of not having your legal affairs up to date. Of the great sporting arenas around the world, few stand more illustrious than the Goliath that is Mount Panorama. Situated in the humble township of Bathurst in New South Wales, the 6.2 kilometre tourist road across Mount Panorama doubles as one of Australia’s premier racing circuits and host of the legendary 1000 kilometre touring car race. Apart from the infinite glory of the Bathurst 1000 that a driver receives through claiming victory after 1000 gruelling kilometres, the prize for winning Australia’s great race is the Peter Brock Trophy which was introduced in 2006 following his tragic death. The trophy immortalises the nine-time Bathurst champion as well as adds each winner to the races rich history. His sudden death in September, 2006 is a poignant reminder of the legal wrangles which can be left to the beneficiaries of an estate when a person dies without completing a will which properly sets out their wishes. Following Brock’s death, it emerged that he had signed a DIY will kit but had not completed the required detail, creating a legal battle between his estranged spouse Beverley, and his partner Julie Bamford and children. While the celebrity estate extends into the millions and involves intellectual property rights, royalties and who gets the Ferrari, the everyday Australian can still learn a valuable lesson from the Wills of the rich and famous because: Almost every Australian has an estate which must be distributed after they die; and A lack of planning will most certainly create unnecessary difficulties for the beneficiaries. A famous Australian legend who left things too late to advise his family of his true intentions is Peter Brock. He died in 2006 and simply never got around to finalising his will. There was a costly legal battle over which Will was actually Brock’s last Will. Peter Brock was in a marital relationship with Bev for over 25 years. They had two children and Bev had a child from a previous relationship whom Brock raised as his own. In 1984 Brock made a Will in which, apart from some monetary gifts, Bev was to live in the family home until marriage, death or the youngest child turned 18, with income paid to Bev and the children until the youngest turned 25, at which time the children would receive the remainder of the estate. In 2003, Brock (who was by then involved in a relationship with Julie Bamford) started to complete a “do-it-yourself” Will kit at Bev’s insistence. He filled in the details as to executor and his funeral wishes. He told Bev to fill in the rest and signed it in Bev’s and his personal assistant’s presence. His PA signed as a witness but Bev did not. No details as to the disposal of his estate were ever completed. In 2006, Brock brought another Will kit into his office and asked his new personal assistant to write it up as he dictated it. She expressed concern that his Will was complicated and he should see a solicitor. This Will was never signed. In October 2007 the Victorian Supreme Court handed down it decision. The Court held the 2006 Will was not valid. It was not convinced that Brock intended the Will as dictated, be his final and complete Will, especially as he had made previous Wills so he would have been aware of the requirement for Wills to be signed and witnessed. A link to the actual case can be found here: Estate of Peter Geoffrey Brock; Chambers v Dowker & Anor; Dowker & Anor v Chambers & Ors [2007] VSC 415 (24 October 2007). The Court held the 2003 Will as valid therefore revoking the 1984 will. However, because the Will only appointed an executor and gave no directions about his estate, the court ruled that Brock’s estate would have to be distributed under the intestacy rules. This meant that his two natural children, Robert and Alexandra would share the estate. They advised the Court that they were prepared to include James, who would otherwise be left out. Brock’s partner, Julie Bamford went on to contest the estate under family provision legislation and the estate settled her claim out of court. Had Brock taken the time to ensure his wishes were validly recorded, he would have saved his family additional pain and suffering. This case serves to highlight the dangers of ‘do it yourself’ will kits and the importance of ensuring your estate is in order. It is a timely reminder in order to avoid costly litigation to ensure your Will is up to date and your intentions are clear.  By spending the time now planning how your estate will be distributed will save your beneficiaries the expense of litigation, if in the future they are forced to contest an out-of-date Will. Some of the following events in your life are an important reminder that you should review your Will: Death of a beneficiary Birth or adoption of a child or even grandchild Transfer of a significant assets Acquisition of a new significant assets Change in company structures ie director, trustee or shareholder Marriage Divorce Separation De facto relationships with children from other relationships Superannuation fund changes Employment changes Moving to another state So, no matter the size of your estate don’t leave it to the Courts to decide the fate your assets. Please contact our Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 to book your free 30 minutes estate planning review appointment with one of our dedicated Estate Planning lawyers. We have a dedicated Wills and Estates team that practices exclusively in this complicated area. Please click here to access our team brochure with details of our professional staff. The post Bathurst 1000 Legend Peter Brock`s Will Disaster appeared first on Attwood Marshall.

Attwood Marshall Lawyers recently acted for the successful respondent in the Queensland Supreme Court decision of Perry v Nicholson [2017] QSC 163 . This decision contains a number of important lessons for advisors and clients alike in self managed super fund (SMSF) succession planning and how critical it is to have the paperwork done properly. Wills & Estates Partner Angela Harry discusses this important case. Facts: The deceased, Colin Maurice established a SMSF in 2009. The SMSF was funded from an inheritance the deceased received from the estate of his second wife who predeceased him some years earlier. The original trustees of the fund were the deceased and his adult daughter, Ms Perry (who notably was not a daughter of the relationship of the deceased’s late wife whose inheritance funded the SMSF). The deceased commenced a de-facto relationship with Ms Nicholson in 2010. In April 2015 the deceased arranged for the SMSF accountant to prepare various documents so as to remove his daughter as trustee of the SMSF and replace her with his de-facto spouse. These documents included minutes signed by all parties as well as a confirmation of resignation of trustee signed by his daughter. After the preparation of this documentation the deceased and his de-facto spouse operated the SMSF as trustees and his daughter had nothing to do with the fund from this time. All SMSF assets were held in the name of the deceased and his de-facto as trustees of the fund and all records with the ATO confirmed the appointment. The deceased fell ill in late 2016 and, after consulting his lawyer regarding his estate planning, decided to update his will and prepare a binding death benefit nomination (BDBN) for his SMSF. The deceased was concerned that his children would challenge his will and, on advice from his solicitor, prepared a BDBN in January 2017 100% favour of his de-facto spouse. The purpose of this nomination was to pass the SMSF death benefits directly to his de-facto and avoid any claim which his children may make had the death benefits been passed into his estate. The deceased passed away in March 2017. Dispute: In this case the daughter of the deceased challenged the validity of the change in trustee which removed her as a trustee and replaced her with the deceased’s de-facto spouse. Ms Perry submitted that, despite the fact she signed documentation which resulted in her removal as trustee of the SMSF and had nothing to do with the operation of the fund since 2015, the documentation was invalid as it did not strictly comply with the terms of the trust deed and that she remained the trustee of the SMSF. Ms Perry further submitted that the BDBN purporting to distribute 100% of SMSF death benefits to the deceased’s de-facto was invalid on the basis that the BDBN had not been provided to the true trustee of the SMSF. It was a requirement of the SMSF deed that any BDBN comply with regulation 6.17A of the Superannuation Industry (Supervision) Regulations which require notice of the BDBN to be given to the fund trustees. The deceased’s de-facto responded that the trustees had, in fact, complied with the requirements of the trust deed pursuant to clause 183 and Ms Perry was validity removed because:- The appointment and resignation of trustee was made in writing; The trustees were immediately advised of the appointment and removal, with each of the parties signing the Minutes to acknowledge the changes. Accordingly, the de-facto submitted that the BDBN was valid. Decision: The decision handed down by Justice Boddice dealt with the validity of the documents which involved the appointment and removal of a trustee of the SMSF which, had the decision been made in Ms Perry’s favour, would have seen the BDBN prepared by the deceased in favour of his de-facto spouse declared invalid as a result of some technical deficiencies in the change of trustee documentation prepared by accountants some two years before the BDBN was signed. His Honour’s reasons included mention of the distinction, at law, between the removal and retirement of a trustee. Whilst in this case the bar set for the requirements to change a trustee were set relatively low by the terms of the trust deed, there is no guarantee that such a decision would be repeated. Had the Court taken a stricter approach the change of trustee may well have been invalid which would, in turn, have unravelled the deceased’s estate planning intentions. This decision should serve as a salient warning to accountants and other advisors who regularly prepare documents in this area to properly consider the complex legal issues that can arise. Whilst this was arguably an opportunistic application by the deceased’s daughter to take control of the SMSF it clearly puts the spotlight on the documentation prepared by the deceased’s accountants. The confusion caused by the flawed documentation prepared by the accountant (which it was argued failed to comply with the terms of the trust deed) led to costly and time consuming litigation in the Queensland Supreme Court. Fortunately in this case (both for the deceased’s de-facto partner and the accountant who prepared the documentation), the court upheld the change in trustee documentation although it did not strictly comply with the requirements of the trust deed. Had the decision been reversed and the de-facto partner missed out on superannuation fund being paid to her then there was scope to argue that an action in damages for negligence would lie against the accountants. No doubt there may have also been an issue of the accountant performing work of a legal nature which may have been in breach of their professional indemnity insurance. This case stresses the importance of ensuring that all variations to SMSF trust deeds as well as BDBNs are properly documented in accordance with the terms of the Deed and to ensure clients and their advisors seek proper legal advice from legal practitioners experienced in this area of law. You are welcome to contact our office with any enquiries concerning estate planning advice. Please contact our Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 to book your free 30 minutes estate planning review appointment with one of our dedicated Estate Planning lawyers. We have a dedicated Wills and Estates team that practices exclusively in this complicated area. Please click here to access our team brochure with details of our professional staff. The post Binding Death Benefit Nominations and Self Managed Super Funds – Life and Death Paperwork! appeared first on Attwood Marshall.

In this podcast, Estate Planning expert, Angela Harry discusses the inherent risks of not taking your estate planning seriously, in particular one very big oversight. Dan: You’ve got to feel for the devastated children of deceased airman, Daniel Leverton, the 40-year-old who died tragically while serving with mates on the Mid-North Coast of New South Wales, who have just been told by a tribunal that they will receive less than a quarter of his estate. The rest going to a woman who shared a comparatively new relationship with the former soldier.   Well, today I’m with Angela Harry, an Estate Planning and Litigation expert from Atwood Marshall Lawyers. Angela, how does this happen?   Angela: This happens Dan because superannuation is dealt with very differently than the assets that people hold in their individual name, which pass in accordance with their will. There is a common misconception that every asset that a person owns automatically comes into their will, to be distributed in accordance with those directions.   What actually happens though, is when a person passes away, the assets that they own are known as estate assets and non-estate assets. So in this instance, superannuation is a non-estate asset. So it’s not an asset that automatically goes with a person’s will.   What actually happens is, with superannuation, it is distributed in accordance with the superannuation trust deed and is also determinative on whether there is any beneficiary nominations in place.   Dan: This is obviously a very forgotten area of estate planning.   Angela: Yes, so part of estate planning is not just doing your will. Estate planning should be a holistic approach to all of your assets. So with superannuation, most people will have on their beneficiary nominations, either the name of a family member, or the option of appointing their legal personal representatives.   Most people don’t realise that you can actually nominate a beneficiary on your superannuation fund and that that beneficiary nomination can either be binding or non-binding. Whether or not you have a binding or non-binding nomination is really going to impact where your superannuation goes when you pass away.   Dan: So, what happens if family members of the deceased are not happy with the nomination? Can they appeal?   Angela: Yes. So what happens is, if there is a binding nomination, as long as that binding nomination is correctly completed and nominates a dependent for superannuation purposes, so generally a spouse, child or someone who they are in an independent relationship with, then that superannuation payment is going to be paid to that beneficiary without issue.   When there is a non-binding nomination or no nomination in place, that is where the trustee of the superannuation fund has discretion where to pay the superannuation to. So normally what happens in those circumstances is, any people who fall within the category of depends for super purposes.   So in this case, it would have been the spouse and the children, who have the ability to apply to the superannuation fund, to receive a portion of the benefit. The superannuation fund trustee will then make a determination on where to pay that superannuation.   If the beneficiary who intended to receive more is unhappy with that decision, or if they didn’t receive anything at all, they can appeal to the trustee. If the trustee still doesn’t make the decision in their favour, then the next step is making an application to the Superannuation Complaints Tribunal, who then can make a determination on the matter.   Dan: It really does underline the importance of getting your estate planning done correctly, doesn’t it? Because I’m assuming that people toddle off down to the local newsagent, or go online and search for a “free will kit” and they rarely actually associate estate planning with superannuation.   Angela: Yes, that’s correct. So, a lot of people work under the mistaken assumption that the superannuation will automatically go in their will. I often see wills that people have drafted themselves where they actually gift their superannuation member balances, but you can’t do that. Because at the end of the day, with superannuation, your superannuation member balance is to be distributed in accordance with that superannuation fund’s trust deed. So where there is no binding nomination in place, the discretion goes to the trustee of that super fund.   So ultimately, a person that you don’t know is going to make a determination based on the applications that they receive from potential dependents, where that superannuation is going to go. And those payments can be quite high, because not only is there the member balance, there’s also a component of life insurance that’s normally attached to it.   Dan: Yes, it’s funny isn’t it? Because, in the context of family law matters, we often talk about a person’s superannuation as sometimes being one of the biggest assets in the property pool.   Angela: Yes, and when we do estate planning with people, people say, “Oh look, I don’t have that much.” And we look at their superannuation member accounts, and they may not have a large component in the member balance, but they may have a very large insurance policy attached to it. And a lot of people overlook that.   So, you may only have 20,000 or 30,000 in a member balance, but you can have hundreds of thousands of dollars in insurance attached to it.   Dan: So, for people listening to this podcast, there’s really two things isn’t there? If you are considering estate planning, then get the job done right. Go and see a lawyer like yourself and the team at Atwood Marshall, who take a holistic look at everything involved. But secondly, for those people who have had their estate plan done, maybe it’s also a good reminder that they should go back and see their legal representative, and ask them what the status is of their super?   Angela: Yes, that’s very important, because even if a person has done a binding nomination on their superannuation account, some funds only allow a three-year nomination, which means after three years, the binding nomination lapses and becomes non-binding. Some funds don’t even allow binding nominations. They have trustee discretion as the only way of payment of the superannuation member balance.   There are some funds that allow non-lapsing binding nomination, but all funds are different. So, I think the message is, when you are doing your estate planning, it needs to be a holistic approach and your lawyer and financial advisor need to be on the same page with where that superannuation is to go and to ensure that the beneficiary nominations are completed appropriately.     The post Estate Planning – Is This a Ticking Time-Bomb in Your Super Policy? appeared first on Attwood Marshall.

We are all familiar with the archetypal stereotype of the beautiful young woman who beguiles a rich elderly man and marries him in his twilight years. There have been notorious “black widows” whose husbands have met an unexpectedly quick death after their marriage and the increasing incidence of online overseas brides who marry much older husbands and quite often seek a divorce after their Australian residency has been confirmed. It is not confined to elderly men marrying younger woman. There is also the case of elderly woman being befriended by much younger men and marrying at a late stage in life. There are examples of famous elderly women marrying much younger men such as Joan Collins and Elizabeth Taylor but these ladies certainly had their wits about them and knew what they were doing. It is a different matter when the elderly partner has capacity issues as a result of dementia and/or ill health. We have all experienced or know of cases involving ‘suspicious’ marriages that occur with wealthy elderly people and much younger partners. Most families have a story of an elderly parent or grandparent who is befriended in their later years by a much younger person and in many cases where that person is or becomes the carer for the elderly person. As the elderly person becomes physically frail and in need of an increasing amount of help and assistance in general day to day living activities, the closer the carer becomes to the elderly person. Family members are often surprised to learn their elderly relation is about to get married, or in many cases, they only find out afterwards! WARNING! MARRIAGE REVOKES YOUR EXISTING WILL! Most people do not realise the impact of a marriage upon someone’s overall legal affairs. Unless a Will is expressed to be in contemplation of marriage, if the person who has made the Will gets married, the Will is revoked and the Will maker dies intestate if they do not make a new Will. If the Will maker does not have any children, the surviving spouse inherits “the whole of the estate of the deceased”. Although there are different thresholds and legislation applying in Qld and NSW, if the deceased has children, the surviving spouse receives a designated monetary amount ($150,000 in Qld and $350,000 in NSW) plus differing shares of the balance of the estate with the surviving children of the deceased. This outcome can be in many cases the exact opposite of what the deceased person had in their previous Will before the marriage. There have also been cases where there is a huge question mark over whether the elderly person actually has the mental capacity to fully understand the legal consequences of a marriage. Where an elderly person is suffering from dementia and/or has a debilitating medical condition, it is sometimes difficult to make an accurate assessment as to whether the elderly person truly understands the impact of the marriage and how this will affect their families. There have not been very many legal cases concerning a challenge to someone getting married but in cases that have been determined by Courts, it appears that providing the person to be married has an appreciation of the general effect of the marriage ceremony, they will be deemed to have sufficient capacity to get married. That does not necessarily mean that they need to fully understand all of the legal ramifications that the marriage may cause (such as the marriage revoking their Will). It is accepted that the test for appropriate mental capacity at law to get married is substantially less than that required to make a valid Will. Making a Will has a slightly lower standard that is required than making an Enduring Power of Attorney. It is conceivable that someone could have the capacity to get married and yet not have the capacity to make a Will or an Enduring Power of Attorney. Likewise a person could have sufficient capacity to make a Will and yet not sufficient to make an Enduring Power of Attorney. It all depends upon the circumstances of each case. MARRIAGE CAN REVOKE YOUR ENDURING POWER OF ATTORNEY AND ENDURING GUARDIAN! A marriage not only revokes a Will but can also revoke an Enduring Power of Attorney or Enduring Guardian. Again the laws are different between Qld and NSW but, generally speaking, a marriage revokes Wills, Enduring Powers of Attorney and Enduring Guardians (in NSW an Enduring Power of Attorney survives a marriage). The most prudent thing to do when you marry is to obtain legal advice and make a fresh Will as well as a new Enduring Power of Attorney (and an Enduring Guardian in NSW). If an elderly person marries, and there are mental capacity issues due to illness and/or infirmity, making a new Will can be problematic. Sometimes an experienced estate planning lawyer will need to carefully take all of these issues into consideration when providing legal advice to the elderly person and getting them to fully understand the legal implications of the marriage. Even though an elderly person is suffering from some form of dementia and is also frail due to a medical condition, it may still be that they have sufficient capacity to make minor changes to their existing Will or alternatively, a simple amendment to make the Will valid in contemplation of marriage. There are various avenues open to ensure that the elderly person’s wishes are properly taken into account and that both the new spouse and family of the elderly person are catered for. There is no easy answer to making sure that all parties will be happy with the outcome in these circumstances but the most important consideration is for the elderly person and their family to ensure that they receive proper legal advice from an experienced legal practitioner in estate planning. Unless a solicitor regularly practices in this area, it could be that they do not have sufficient knowledge and experience to provide advice in this crucial area. In many cases, if the correct legal advice is not provided, the matters more often than not end up being dealt with in the Supreme Court which can cost the estate hundreds of thousands of dollars. In a recent case involving an elderly man who made a fresh Will leaving his entire estate to his de facto partner, the Court held that he did not have the requisite mental capacity to make the Will even though this was done by a solicitor. The Judge used the case as an opportunity to provide a warning to the legal profession to ensure that they were experienced in this area and carefully investigated the mental capacity of elderly clients. A link to the case is here Ryan v Dalton [2017] NSWSC 1007. You are welcome to contact our office with any enquiries concerning estate planning advice.  Please contact our Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 to book your free 30 minutes estate planning review appointment with one of our dedicated Estate Planning lawyers. We have a dedicated Wills and Estates team that practices exclusively in this complicated area. Please click here to access our team brochure with details of our professional staff. The post Marrying Into The Money – Can this be Financial Elder Abuse? appeared first on Attwood Marshall.

Last week, a joint Fairfax Media investigation with the ABC put the spotlight on the retirement village industry, particularly one of the biggest providers Aveo. The investigation allegedly uncovered a litany of business practices by Aveo including fee gouging, safety issues and misleading marketing promises, made to many people at a time in their life that they were most vulnerable. So, if you’re considering one of these retirement villages for either yourself or for your family members or loved ones, what do you do to ensure you’re not taken up the garden path. In this podcast, Attwood Marshall Partner, Angela Harry gives great information on what you can do to minimise the risks of not getting caught. The post How To Minimise the Risks of Not Getting Caught by Unethical Retirement Villages appeared first on Attwood Marshall.

Elderly Should Obtain Proper Legal and Financial Planning Advice Before Signing Retirement Village Contracts The recent exposé of AVEO by the Four Corners program and the Fairfax Media has highlighted the importance for retirement age people to obtain proper legal and financial advice before entering into retirement village or nursing home contracts.  Wills and Estates partner Angela Harry discusses some of these issues. The issues identified in the Four Corners program concerning AVEO Retirement Villages are nothing new.  Despite the introduction of specific legislation in both Queensland and New South Wales in order to protect elderly couples and singles when they enter into contracts with companies running retirement villages, this has not prevented the apparent exploitation of retirement village residents by introducing onerous terms and conditions in their agreements.  Quite often these agreements contain the following:- “Exit Fees” of between 25-40% of the initial purchase price (known as the “ingoing contribution””) for the retirement village unit from the date of entering into the agreement until it is sold; Payment to the village of 50% of any capital gain (however the resident is usually responsible for 100% of any capital loss); “Refurbishment Fees” are charged to the resident which effectively passes on the cost of a complete refurbishment of the unit (sometimes this can be as high as $40,000.00); Legal Fees incurred by the retirement village operator which can amount to thousands of dollars; Having a virtual monopoly with respect to the sale of any unit in the complex by banning external real estate agents. In this way they regulate to whom and for how much exiting residents can sell the unit. There is also a sales fee (usually a further % on the value of the property). Unfortunately the % figures in the agreements are often complex and difficult to understand. In most instances the resident who has purchased the retirement village unit will live there until they pass away and it is only when the family members sell the unit that the actual cost is realised. We have had a number of estates of late where the exit fees have been in excess of $100,000 for residents who have lived in the unit for only 2 or 3 years! These are just the highlighted terms and conditions that are included in many of the agreements that residents enter into when they agree to move to a retirement village or similar nursing home complex.  In many cases the agreements are leasehold and not freehold.  This means that the resident only has a lease of the unit (usually whilst they are alive) and the transfer of the lease is subject to the consent of the retirement village operator.  There can be issues when the company that is the retirement village operator goes into liquidation or is insolvent.  Although the legislation protects the interests of the residents if this occurs, there is still a lot of red tape associated with selling or transferring the leasehold interest to a new owner.  If the retirement village operator does go into liquidation or enters into some form of financial administration, this is a clear disincentive for any “new buyers” of the units. The transition from owning your own home or unit to moving into a retirement village is a very complex one.  Not only are there lengthy agreements and legal notices that you need to sign in relation to the retirement village, there are also potential issues with selling your home and how this affects your Centrelink benefits.  This is particularly relevant if the value of your family home exceeds the bond or leasehold amount that you are paying for your retirement village unit.  It could well be that by doing this you would impact your entitlement to Centrelink benefits either totally or partially.  It is very important that you obtain legal advice and financial planning advice from professionals who specialise in this particular area so that you can ensure that your interests are properly protected both from a legal stand point and financially.  We have advised many clients who have entered into agreements with retirement villages and have paid significant amounts by way of a bond or leasehold lump sum without obtaining any legal advice as to the agreements that they have signed or obtaining any financial planning advice with respect to their ongoing taxation and Centrelink benefits. On many occasions the Retirement Villages urged the clients to sign agreements without appropriate legal advice indicating the documents simply require a lawyer to ‘witness’! It is very important that all people who are looking to move into a retirement village “shop around” and compare the various retirement villages and other care facilities that are available in the market.  Once again, having an experienced legal practitioner, accountant and/or financial planner who deals in this area regularly will assist you in investigating which is the best option for you both from a physical care perspective and ensuring that this is also the best financial solution for you. The exit fees and other amounts payable are triggered after certain time periods and only after you leave or pass away. It is very important that you properly understand these critical issues before entering into these agreements. Many clients do not understand the difference between freehold title and leasehold. Most people have owned their properties as freehold land with a title deed. The majority of retirement villages are leasehold arrangements. Fortunately, there has been a marked increase in the number of different retirement villages and care facilities that are available on the open market which has led to greater competition in the industry with lower exit fees and more generous terms and conditions.  The market on the Gold Coast and Northern New South Wales area is particularly competitive and the opening of new facilities with surplus rooms has further led to a reduction in these terms and conditions. Like most things, people need to undertake appropriate enquiries and due diligence with respect to the retirement village that they wish to reside in, quite often for the rest of their lives.  This is a very important decision and equally important that residents take the time to carefully weigh up their options and obtain the correct advice.  We reiterate that people considering the transition to care should obtain proper legal and financial planning advice from professionals who have experience in this complicated area before they sign or agree to any terms and conditions.  Attwood Marshall has a long history of acting for retirement clients and advising them in relation to these issues.  We also have accounting and financial planning professionals who specialise in this area and can assist with all relevant issues involving a transition to care. On the 7th July 2017, the Queensland Government announced it will be introducing legislation to further regulate retirement villages in that state. Premier Anastacia Palaszczuk issued a statement that a bill will be introduced into Parliament ‘soon’ to give clear and stringent protection to seniors living in retirement villages and aged care complexes in Queensland. My government consulted widely over the past 18 months and it’s very clear that the rights of people who live in retirement villages just aren’t in line with the expectations of the community,” Premier Palaszczuk says. We intend to put in place a new staged pre-contractual disclosure process, limits on rent increases and minimum behavioural standards for park owners, staff and home owners,” she says. This gives some hope to Queensland residents that there will be some relief in sight. It remains to be seen if NSW takes the same approach. Contact Details You are welcome to contact our office with any enquiries concerning Retirement Village Agreements, transition to care arrangements and estate planning advice. Please contact our Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 to book your free 30 minutes estate planning review appointment with one of our dedicated Estate Planning lawyers. We have a dedicated Wills and Estates team that practices exclusively in this complicated area. Please click here to access our team brochure with details of our professional staff. The post Investigation of Aveo Highlights Transition to Care Issues appeared first on Attwood Marshall.

What happens to the law of inheritance when a husband murders his wife? Senior Wills & Estates paralegal, April Kennedy, discusses these issues in this high profile case. The late Allison Baden-Clay’s father, Geoff Dickie, recently filed a formal application to the Queensland Supreme Court seeking a declaration his son-in-law Gerard Baden-Clay not be entitled to receive any financial benefit from her death. In April 2012 the disappearance of Allison Baden-Clay rocked the sleepy Brisbane suburb of Brookfield in Queensland. Allison’s body was found on a creek bank under Kholo Bridge Crossing at Anstead in Brisbane’s west, 10 days after she disappeared. She was reported missing by her husband and the police investigation followed. Gerard Baden-Clay was the prime suspect in her disappearance and was subsequently charged with her murder in June 2012. In July 2014, Gerard Baden-Clay was found guilty of murdering his wife and given a life sentence for his crime in the Queensland Supreme Court after a defended jury trial. In December 2015, Baden-Clay’s lawyers successfully argued that he unintentionally killed his wife during an argument and the murder conviction was downgraded to manslaughter by the Queensland Court of Appeal, much to the dismay of the wife’s family, and the nation. The Queensland Director of Public Prosecutions (DPP) appealed against the decision of the Court of Appeal to the High Court and the murder conviction was ultimately reinstated by the High Court in August last year, giving the family a sense of finality to their protracted suffering. Justice appeared to have been done. Prior to the murder, Mr and Mrs Baden-Clay prepared wills early on in their relationship appointing each other as sole executor and beneficiary. Baden-Clay was appointed the sole executor and beneficiary of his late wife’s 1997 will. After Baden-Clay’s murder charge the Supreme Court gave Allison’s father temporary control of her estate which included her life insurance policies. If Baden-Clay was acquitted of her murder then he would resume his role as executor of her estate. His conviction means her parents can seek a permanent order granting them control of her estate. Allison’s estate is said to consist of two life insurance policies amounting to almost $800,000, which was ordered to be held in trust by the court pending the outcome of Baden-Clay’s trial. There is a further superannuation account amounting to approximately $236,000. Allison’s father was successful in his application to remove his son-in-law as executor of his daughter’s will as a result of Baden-Clay’s murder conviction. Mr Dickie was made the sole administrator of his late daughter’s estate by the Supreme Court of Queensland in Brisbane on Thursday 23 February 2017. The grant was issued after Allison’s father filed an uncontested application for administration of her estate, including her life insurance and superannuation policies, in early February. The decision by the High Court confirming the murder conviction essentially disqualifies Baden-Clay from acting as the executor of his late wife’s will, as well as receiving any financial payment from her estate as a beneficiary. This is what is referred to as the ‘forfeiture rule’. It is an established principle of law in Australia that any “person who is criminally responsible for the death of another forfeits their right to take property to which they would otherwise be entitled upon the death of another person for whose death they are responsible”. In essence, if a person is convicted of the murder (or manslaughter) of another person then they cannot legally inherit from that person’s estate. The rule of law being that no man can benefit from his own crime. The act of doing so is considered ‘disentitling conduct’, being conduct that permanently disqualifies a person from benefiting from the estate of another. The person is also excluded from benefiting from assets which don’t necessarily form part of the estate i.e. as a result of joint tenancy and payment of life insurance or superannuation proceeds. Queensland does not have specific legislation dealing with this and follows the common law which is in line with the above statement. New South Wales has legislation covering this issue which is designed to give the Supreme Court discretion to allow some offenders access to the estate in certain circumstances (Forfeiture Act 1995). For example where a victim of long term domestic violence snaps and kills a person, they may be able to apply for forfeiture modification orders within 12 months of the death (or later with leave). Recent amendments also allow people who are acquitted on the grounds of mental illness to apply. Another form of disentitling conduct which relates to, but is distinguishable from, the above is assistance in a suicide. The concept of assisted suicide, or euthanasia, is controversial at best. Take for example a daughter assisting her father in ending his life after a painfully drawn out illness. Such an act might attract a conviction of manslaughter, or perhaps murder, essentially disqualifying her from inheriting under her father’s will. This might be viewed as unfair given the circumstances however the Court in Queensland does not consider the moral culpability of the person assisting in a death under the forfeiture rule. In past decisions, the motive and intention of the person who contributes to the death has been deemed irrelevant. In the Baden-Clay case, the forfeiture rule applies to the husband and would have applied even if his murder conviction was downgraded to manslaughter. There was argument that the motive behind Allison’s murder was the financial benefit Baden-Clay would receive from her estate. This was ultimately rejected by the Court and would, in any case, be deemed irrelevant by the Court under the forfeiture rule. Mr Baden-Clay has been disqualified from receiving any benefit from his wife’s superannuation and life insurance policies, as well as inheriting from her estate under the will. Allison’s father has been appointed by the Supreme Court as the administrator of his late daughter’s $1 million dollar estate, which is set to be inherited by her three daughters. It appears justice has prevailed. We welcome any enquiries or comments in relation to these issues and look forward to assisting with these important issues.  You are welcome to contact our office with any enquiries concerning estate planning advice.  Please contact our  Wills and Estates Department Manager, Donna Tolley on direct line 07 55068241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071.  We have a dedicated specialist Wills and Estates team that practices exclusively in this complicated area. Please click here to access our team brochure with details of our professional staff. The post Convicted Murderer Gerard Baden – Clay to Forfeit Rights to Wife`s Estate appeared first on Attwood Marshall.

An Attwood Marshall client who was injured in circumstances where she was sexually assaulted on Manus Island by a detainee, has successfully challenged her employer’s decision to dispute liability for her claim. We look at the case and the issues concerning claims involving psychological injury. Ms Wills was working on a ‘fly in fly out’ basis on Manus Island as a case manager with Broadspectrum (Australia) Pty Ltd (formerly Transfield). The sexual assault was reported immediately to the employer and the worker suffered a significant psychological injury. The employer initially accepted liability for Ms Wills’ claim and commenced payment of weekly benefits and medical expenses. For a period of almost 2 years the employer acting as self-insurer met payments of weekly payments of worker’s compensation for wages, GP’s expenses, psychiatrist’s expenses and travel expenses. The employer then sent Ms Wills to a medical assessor and after receiving a medical report, denied liability in January 2016, almost 2 years after the event. Liability was disputed on the basis that the employment was not the “main contributing factor” to Ms Wills’ psychological injury and that her employment was not a “substantial contributing factor to the injury” under Section 9A of the Workers Compensation Act 1987 (NSW). Ms Wills challenged the decision of the insurer at the NSW Workers Compensation Commission. Ms Wills had suffered severe psychiatric symptoms as a result of the sexual assault culminating in frequent visits to a psychologist and psychiatrist.  She received Electroconvulsive Therapy and was prescribed anti-depressant medication. Her treating psychiatrist and qualified psychiatrist all supported the diagnosis of post traumatic stress disorder (PTSD) arising out of the course of the employment from the sexual assault. The insurer submitted at the arbitration hearing that the sexual assault was merely an aggravation of a pre-existing condition of PTSD and referred to previous traumatic events in Ms Wills’ life. Essentially the defendant employer attempted to “blame the victim” by saying she had a pre-existing vulnerability to PTSD and that Ms Wills was suffering from it for many years and this was merely the latest manifestation of that pre-existing condition. The employer submitted that the plaintiff suffered from a major depressive disorder caused by the pre-injury history and downplayed the significance of the sexual assault on Manus Island, notwithstanding that that assault was terribly traumatic for Ms Wills. The employer somewhat insensitively submitted that the sexual assault would not have precipitated such a reaction in anyone else. Ultimately the Commission rejected all of the respondent’s arguments and found that a genuine psychiatric injury was sustained by Ms Wills on Manus Island. The Commission found that employers must take their employees as they find them. This is sometimes referred to as the ‘Eggshell Skull Rule’.  The Commission did not find that the sexual assault on Manus Island was the manifestation of symptoms of an underlying psychological condition but rather a specific incident causing the incapacity.  The Commission found that Ms Wills did have a significant psychiatric history with a possible diagnosis of PTSD and depressive disorder but that that condition was in remission when she commenced work on Manus Island and remained in remission until she was sexually assaulted during the course of employment in 2014. Through legislative change in mid 2012 the State Liberal Government added an additionally difficult test for claimants to prove in disease cases. In disease cases from the 19th June 2012 for the majority of workers, it is necessary to prove that the employment was the main contributing factor to the contraction or aggravation, acceleration, exacerbation of a disease. Based on the factual circumstances the Commission was prepared to find that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease injury.  It was also found that the employment was the substantial contributing factor within the meaning of Section 9A of the 1987 Act.  Accordingly, the liability decision made by the insurer was reversed and the applicant now remains entitled to weekly payments of worker’s compensation and payment of medical expenses. The case is a lesson in the prosecution of psychiatric injury claims. With persistence and diligence an applicant can be successful against an employer even when their medical history is used against them. You can read the judgement here. Whilst it is arduous and traumatic for workers to litigate psychiatric injury claims, the case is an example that they can be successful if the case is pushed through to finality. Ms Wills is now evaluating her rights to further compensation under the Act including a claim for a lump sum and possibly a negligence claim against the employer.  She was recently assessed as having a 19% impairment and will in all probability pursue a common law claim for damages. It seems to be a common tactic by employers and their insurance companies (including WorkCover Queensland) to deny liability for legitimate worker’s compensation claims based on a psychological or psychiatric condition. The actual process of having the claim denied, going through medical examinations and the claims process itself can often exacerbate the psychological condition to the point where it subsumes the original injury. In Queensland, S.32(5) of the WorkCover Act provides that for a WorkCover claim to be accepted, the employment must be a major significant factor in causing the psychological injury, as opposed to a ‘significant factor’ in the case of a physical injury. These provisions would appear to discriminate against psychological injuries and make it more difficult for workers to qualify for compensation. There has been a dramatic increase in psychological claims brought in the workplace in recent years with far more recognition of this type of condition and awareness of symptoms. It is a difficult and complex area of personal injuries law which requires experienced legal representation, with the lawyers requiring empathy and a steely determination. If you require any further information about workers compensation claims in QLD or NSW, please do not hesitate to contact Department Manager Casey Reedyk on Freecall 1800 621 071 or email:  creedyk@attwoodmarshall.com.au for a free initial consultation and discuss our ‘no win no fee’ terms. We have a dedicated team of lawyers who specialise in this area of law and practice exclusively in personal injury claims.     The post Manus Island Worker Wins Compensation After Sexual Assault appeared first on Attwood Marshall.