News

News

Did you get caught on the road?

December 3rd, 2019

It is a privilege to hold a drivers’ licence, not a right.

In Queensland, there are laws that you must obey when issued with a driver’s licence. These laws have been implemented to ensure your safety and others on the road and include road rules. If you do not comply with these laws and are “caught in the act” by law enforcement, you may be charged with a traffic offence.

There may be serious consequences when charged with a traffic offence, even if it is a minor offence.  Penalties can range from monetary fines, loss of demerit points, disqualification of licence, a probation order or at worst, a jail sentence. If you are convicted, this can also affect your chances of obtaining a job, travelling overseas and your ability to obtain a visa.

The penalty imposed depends on the type of offence you have been charged with, your traffic history, your age, character and intellectual capacity, and other mitigating factors such as whether you have pleaded guilty and cooperated with law enforcement agencies.

Generally, there is a maximum penalty for most traffic offences. However, it is within the discretion of the court which decides what penalty to impose, and if a lesser penalty should apply.

At Miller Harris Lawyers, we can help you with a range of traffic related offences, including:

• drink and drug driving
• speeding offences
• unlicensed driving
• driving without due care and attention
• dangerous operation of a vehicle
• dangerous driving causing grievous bodily harm and death
• work licence applications
• special hardship orders
• other traffic related offences

Do yourself a favour and get the right legal advice today. Contact our Mareeba criminal and traffic offence lawyers on 4092 3555.

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A gift for consumers in time for Christmas

November 5th, 2019

With the holiday season quickly approaching, legislation extending the expiry period on gift cards to a minimum of three years provides a welcome gift for consumers across Australia.

The changes will come into effect on 1 November 2019, and as a result, new obligations will be imposed on businesses that supply gift cards (see below implications for businesses).

The key changes are that:

  1. the expiry date must be a minimum of three years;
  2. the expiry date must be clearly displayed on the gift card; and
  3. a majority of ‘post purchase fees’ are banned including activation and account keeping fees.

The expiry date must be displayed as a full date or as a period of time with the date of supply e.g. ‘this card expires 5 years after supply, supply date 01/11/2019” or “valid for 3 years from 11/19″.

These changes will come in force on 1 November 2019 and if the terms and conditions of a gift card purchased on that date do not comply with the new requirements, the terms and conditions will be voided and the new requirements automatically imposed by law.

Cards and vouchers sold before 1 November 2019 will continue to have the same expiry period and applicable fees as stated at the time of purchase.

The three year expiry period does not apply to a number of gift cards or vouchers that are:

  • able to be reloaded or topped up;
  • for goods or services available for a limited time (e.g. for a temporary pop up art exhibition);
  • supplied as part of a temporary marketing promotion (e.g. a voucher valid for one month supplied as a free bonus with a purchase);
  • donated free of charge for promotional purposes (e.g. a voucher supplied on the opening day of a store to be spent on that day);
  • sold for a particular good or service at a genuine discount (e.g. a $50.00 voucher for a service worth $100.00);
  • part of an employee reward scheme;
  • part of a customer loyalty program; or
  • second-hand gift cards.

Implications for businesses

To ensure that businesses comply with these new gift card laws, the Australian Consumer Law Commission recommends that businesses should:

  • update gift card terms and conditions on the cards themselves, any promotional material and websites;
  • update internal systems, training, manuals and policies;
  • place signage on gift card displays and at the counter; and
  • note the changes on the receipt issued with the purchase of a gift card.

Penalties

There are substantial fines for non-compliance of up to $6,000.00 for individuals and $30,000.00 for businesses and companies.

If you have any doubt about your compliance obligations, or whether these new laws will apply to you, please do not hesitate to contact our experienced team on 07 4036 9700.

Happy holiday shopping!

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Drug Testing in Family Law Matters

October 15th, 2019

Drug and alcohol use is a rising social issue both in Australia and worldwide.  The National Drug Strategy Household Survey[1], conducted in 2016, produced the following alarming statistics:

  1. 1 million Australians, aged 14 years and older, had used illicit drugs in the 12 months prior to the survey, which equates to roughly 16 per cent of the population at the time;
  2. 1 in 5 Australians who reported meth/amphetamine use, also reported using the drug at least weekly;
  3. 4 out of 10 Australians either smoked daily, drank alcohol in risky quantities or used an illicit drug in the 12 months prior to the survey;
  4. 10 per cent of drinkers drove while under the influence of alcohol in 2016;
  5. 1 in 20 had misused pharmaceuticals in the 12 months prior to the survey; and
  6. 1 in 10 Australians aged 14 years and older had been a victim of an illicit drug-related incident in the previous 12 months.

These statistics will shock many.  As a family lawyer it is not uncommon for parents to raise concerns regarding the other parent’s use of illicit substances, alcohol intake or dependence on pharmaceuticals.

In parenting disputes, the paramount consideration is “what is in the child’s best interests”.  In determining what is in the child’s best interests, there are two primary considerations:

  1. “the benefit to the child of having a meaningful relationship with both of the child’s parents; and
  2. “the need to protect the child from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence.”

Substance use is directly relevant to the court’s responsibility to protect a child from harm.  Substance use will typically have a significant impact on the parenting orders that a court will make.

Where allegations are raised, it is common for the parent who is the subject of the allegation to undergo drug testing.  If the parent wishes to defend the allegation, they may submit to drug testing willingly.  If the parent does agree to undertake drug testing, then the court has the power to require that parent to undergo testing.

When making orders for drug testing, the court must consider, among other things, the type of testing, the frequency and process for requesting a test, the timeframe in which a test is to be undertaken, chain of custody issues, the process for obtaining a sample and the consequences of a negative test result.  As a result, the drafting of drug testing orders has become very technical.

The different types of drug tests

When an allegation of illicit substance use, misuse of prescription medication or pharmaceuticals or alcohol dependency is raised, consideration needs to be given as to what type of testing is appropriate and will most likely capture use.  Different tests will be more suitable depending on the frequency, duration, quantity and timing of usage.

The most common types of testing include the following:

  1. Urine analysis: which can detect prescription and illegal drugs as well as alcohol. This testing, is limited in that it can usually only detect use a few days prior to the test and the accuracy of detection depends on the individual being tested and level of usage;
  2. CDT testing: (for alcohol) which can detect high alcohol usage for a period of up to two weeks. The reliability of detection will vary depending on the individual and the quantity and frequency of use during the detection period;
  3. EtG testing: is a type of hair follicle testing which can test alcohol use for up to three months; and
  4. Hair follicle testing: which can detect a variety of illegal and prescription drug use for up to three to six months depending on the length of the hair sample.

Which test, or combination of tests is appropriate, will depend on the alleged substance used, the timing of the use and the pattern of consumption.

If you require assistance with your family law parenting matter, or have concerns regarding your children or the other parent that you wish to discuss, please do not hesitate to contact one of our Cairns and Mareeba family lawyers today on 07 4036 9700.

[1] https://www.aihw.gov.au/reports-data/behaviours-risk-factors/illicit-use-of-drugs/overview

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Should You Formalise The Parenting Arrangements For Your Children?

September 5th, 2019

Formalising the parenting arrangements for children after separation has many benefits for both the parents and children.  A formalised agreement provides a predictable and stable routine, reduces the chances of conflict, and reduces stress and the likelihood of the other parent acting contrary to the agreed arrangement.

There is no one better placed to make decisions about what parenting arrangements are in the “best interests” of children, than their parents.  However, an experienced family law practitioner can provide very useful, and sometimes critical advice, to assist parents to agree on, and formalise, all necessary parenting issues for their children.

Issues we commonly advise separated parents about include:

  1. the various parenting arrangements parents might consider such as week-about, a shared week arrangement, and alternate weekend routines, including arrangements for special occasions such as birthdays, Christmas, Mother’s and Father’s Day;
  2. how to “make legal” the agreed parenting arrangement to reduce the risk of the other parent absconding with, or holding over the children, or making threats to do so;
  3. whether to enter into a parenting order – which is legally binding, or a parenting plan – which is not legally binding, but which has other benefits, including flexibility;
  4. how to ensure the parenting arrangements still maintain a degree of flexibility where needed. This can be critical where one parent works on a fly-in, fly-out (FIFO) arrangement, does shift-work, or lives in another city;
  5. other parenting issues such as domestic and international travel with the children, passport arrangements, choice of schools and medical providers;
  6. concerns relating to who will care for the children when they spend time with the other parent;
  7. what to do when a child is refusing to spend time with the other parent;
  8. how parents can keep in touch with their children when they are living with the other parent;
  9. concerns regarding alcohol, illicit substances and family or domestic violence; and
  10. how to communicate with the other parent regarding a parenting issue about which they do not agree.

The feedback we commonly get from our clients is that formalising the parenting arrangements:

  1. reduces stress for the children by providing a stable routine;
  2. reduces anxiety and conflict for the parents by removing the need to communicate on a weekly basis with the other parent about what time the children will spend with each of them;
  3. enables parents to plan their time with their children, including holidays and special occasions such as birthday and Christmas celebrations;
  4. reduces their level of fear that the other parent may abscond with their child, refuse to return their child or otherwise act contrary to the formal parenting arrangements; and
  5. reduces their level of fear that the other parent may make a court application seeking for the children to live with them or to move away.

It is strongly recommended that, in the initial stages of a separation, parents obtain legal advice from experienced family law practitioners about:

  1. the law surrounding parenting issues and arrangements under the Family Law Act 1975(Cth) as relevant to the particular family;
  2. the various parenting options, arrangements and issues they should consider;
  3. whether a parenting arrangement should be formalised through a parenting plan or court orders;
  4. the services available (some of which are free), to assist parents to discuss and agree on parenting arrangements; and
  5. how they can make the agreed parenting arrangements “legal”.

At Miller Harris Lawyers, our experienced Cairns and Mareeba family lawyers are available to provide you with advice on general parenting matters and the application of the Family Law Act 1975 to your family situation, and specific parenting issues, to assist you to amicably resolve the arrangements for your children.

If you would like more information about how we can assist you to amicably resolve the parenting arrangements for your children, please feel free to contact our Cairns and Mareeba Family Lawyers on 4036 9700.

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BIG LIFE CHANGES: The effect of marriage, divorce and separation on your will

August 22nd, 2019

There seems to be a misunderstanding about divorce and the appropriate time to update your will or do a new will.   You should always have a current and up to date will in place.  Waiting for your divorce to be finalised is never a good reason to delay your estate planning.

What’s the effect of divorce on a will?

In Queensland when a person makes a will (“the willmaker”) and then later divorces, any provision appointing the willmaker’s former spouse as executor, trustee and/or guardian will be revoked and taken to have been omitted from the will.  Further, any gifts made in favour of the former spouse are automatically revoked upon divorce.  All other provisions in a will not relating to the former spouse, generally will remain valid and effective.

As divorce only revokes the provisions to your former spouse in your will and not your whole will,  you do not need to wait for your divorce to be finalised to prepare a new will (and I do not recommend that you wait). Whist this example may seem reasonable to many of you, it is important to bear in mind that only upon a formal divorce will those provisions to a former spouse be revoked.

What happens if I am separated but not divorced?

For married couples, separation alone will not revoke a will. In Australia married couples must be separated for a minimum period of twelve (12) months before making an application for a divorce.  During the period of separation (which is sometimes many years) if you have an old, outdated will in place gifting everything to your former spouse, he/she may get just that, everything.

What if I don’t have a will?

It is just as bad, if not worse, if you don’t have a will in place and you are recently separated but not divorced.  If you do not have a will in place and are legally married at the time of your passing, then under the rules of intestacy your former spouse will get a large portion, if not all, of your estate.

When should I do a new will or update my existing will?

A lot of clients prefer to hold off preparing a new will or reviewing their existing will until their divorce and/or property settlement has been finalised.  I do not recommend this.  Whist you might feel like you have 101 things to do and your life is chaotic, a new or revised estate plan should be at the top of your “To Do” list.

What other life changing events will affect my will?

The ending of a de facto relationship or civil partnership will also revoke the provisions to a former spouse in a will.  So even if you are not married, you should bear this in mind.

Marriage will automatically revoke a will*, unless the will is made “in contemplation of marriage”.    I often find, especially for younger clients, that they still wish to make provisions for their siblings or parents even if they are getting married.  Usually if their parents have gifted them a sum of money or have provided a guarantee to assist them in buying their first home.  If they prepare a will making these provisions for family members and then later get married, and their will has not been made in contemplation of marriage, then these special gifts to family members will be revoked.

*It is important to note that marriage will not revoke the following provisions in a will pre-dating marriage:

  1. a gift to the person to whom the willmaker is married to at the time of the willmaker’s death;
  2. an appointment as executor, trustee, advisory trustee or guardian of the person to whom the willmaker is married at the time of the willmaker’s death;
  3. a will, to the extent it exercises a power of appointment, if the property in relation to which the appointment is exercised would not pass to an executor under any other will of the willmaker or to an administrator of any estate of the willmaker if the power of appointment were not exercised.

Information contained in this article is of a general nature only and is applicable to the current law in Queensland.  It is not intended to address the circumstances of any particular individual or entity.  Please note that the law in each state and territory may differ.  We recommend that you contact one of our experienced wills and estates solicitors to obtain advice about your individual circumstances.

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Lost trust deeds – a forgotten saviour?

August 20th, 2019

Lost, destroyed or missing trust deeds can sometimes lead to tears, misery and heart attacks.  But is the situation as dire as it seems if a document, crucial to organising your financial affairs, disappears?

Maybe it is the advent of trusts as a useful financial planning structure, or the rise of the self‑managed super fund (“SMSF”) (read our previous article on self-managed super funds here), but in recent times, well recent for the law, there have been a number of cases which are resurrecting a seemingly forgotten principle of law, the presumption of regularity.

The presumption of regularity is that deeds and other documents will be presumed to have been validly executed and made, unless there is some contrary evidence.  The cases below illustrate the point, and highlight that the presumption is only applied in very limited circumstances, often where there is a substantial lack of evidence.

Sutherland v Woods[1]

In Sutherland v Woods there was a question as to whether a SMSF had been validly established.  The trust deed could not be located, and because there was no deed, Woods claimed that it was not a valid SMSF.

Sutherland sought to rely upon the presumption of regularity and contended that despite the absence of the deed, the fund was valid.  The subsequent conduct of the parties, including their bank and the ATO, led to the conclusion that the SMSF must have been correctly established, even if the deed was now missing.

Importantly, the parties did all they could to locate a signed copy of the original deed, contacting Westpac, the ATO and titles office to see if any of those entities held a signed copy.  These enquiries were unsuccessful, and the parties were forced to rely upon an unsigned copy of the alleged deed.

The court ultimately agreed with Sutherland, and held that although a true signed copy of the deed was unavailable, that did not prevent the inference that the trust had been validly created.

The missing deed would have been conclusive evidence that the SMSF was established correctly.  In absence of the deed, Sutherland was instead required to prove the validity of the SMSF through other means, such as subsequent dealings.

It was apparent that through the actions of the parties, and third parties, relying upon the existence of the deed, the trust had always been intended as a superannuation fund and had been validly created as such.

The absence of the missing document did not invalidate the fund, and indeed the evidence in the circumstances led to the presumption that the establishing deed must have existed at some point.

Re Thomson[2]

In Re Thomson, the deed establishing the trust was not an issue.  Instead, there were two subsequent amending deeds, one was missing and the other unsigned.

The first deed, which was missing entirely, purported to remove two of the original trustees.  The second deed, which was unsigned, referred to the first deed and amended the trust so that if both of the remaining trustees were to pass away, the trust would vest in the estate of whomever survived the longest.

The dispute arose around the validity of the two amending deeds. If they were not valid, then the two trustees who were allegedly removed would be entitled to the property of the trust.  If both were valid, then the trust would vest in the estate of Thomson.

Such matters around the validity of documents when it comes to the administration of an estate are not uncommon, and is the context in which the presumption is commonly applied.

In determining the validity of the irregular deeds, the court again looked at similar factors as in Sutherland.

In particular, the court relied on the fact that since the removal of the trustees, only the two remaining trustees had been signing off on the trust’s financial reports, indicating that the deed existed, and the parties had been acting as if it were the true state of affairs.

The court found that the two irregular deeds could be presumed to be regular because the evidence indicated that was probably the correct and true situation.  The executor was therefore entitled to include the trust property in the deceased’s estate.

So what is the presumption?

So now that we have reviewed a couple of examples of the presumption, when should you be considering relying upon it?

The presumption will only apply in limited circumstances, it should not be considered a cure-all for any trust problems you have.

The courts have held that before applying the presumption:

  1. a considerable amount of time must have passed since the event happened;
  2. there is no other way to prove the existence or validity of the missing deed;
  3. there is some other extrinsic evidence indicating the deed, or missing instrument was valid and people have since acted as if it were valid; and
  4. the presumption must only be applied to a procedural or formal detail.

Point 3 above is clearly identified in the two cases.  The evidence from the bank, the ATO, and financial reports all indicated the legitimacy of the actions being undertaken, even where the deed was not located.

The presumption should not be thought of as applying in all situations, indeed, its limited application throughout the last 50 years suggests it should only be thought of as a last resort.

In many circumstances, simply claiming the deed is lost, without exhausting all possibilities will not be enough.

Before relying on the presumption, consideration should be given to some of the following alternatives:

  1. preparing a deed of rectification;
  2. relying on the trustee powers in the Trusts Act;
  3. for a SMSF, where practicable, rolling the assets over to another SMSF which does not have any issues with documentation; and
  4. last but certainly not least, no effort should be spared in locating the original deed.

Of course, these options are not always available, some may rely on the original trustees still being available, or simply be inapplicable in the circumstances.

Lost or irregular trust documents often have circumstances unique to each case.  For that reason, when irregularities are detected, efforts should immediately be made to correct them.

In most cases involving the presumption, it is not raised until there is a crisis, for example the breakdown of a marriage or the administration of a deceased estate.  By taking proactive steps, most of these situations, and possibly expensive litigation, can be avoided.

The experienced team at Miller Harris can help you, or your clients in dealing with lost or irregular deeds.  Many situations will require a bespoke solution, and our experience across many areas of the law enable us to come up with the right solution to your problem.

Should you have any questions or enquiries, please do not hesitate to contact Ashley Jan on 07 4036 9700, or ashleyjan@millerharris.com.au.

[1] Sutherland v Woods [2011] NSWSC 13 ( http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2011/13.html ).

[2] Re Thomson [2015] VSC 370. ( http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2015/370.html )

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When do children get to decide which parent they will live with?

July 4th, 2019

One common misconception that parents often have following separation is that their child will get to decide who they live with and how much time they spend with the other parent.

The living arrangements for children after separation is a decision to be made by both parents, not the children.  If parents cannot agree to the living arrangements for their children, they are required to attempt mediation to see if they can agree with the assistance of an independent third party.  If there is still not agreement after mediation, then ultimately either parent may need to commence court proceedings asking the court to decide on the arrangements for the children.

The next obvious question is—If children do not get to decide who they will live with, do they get a say in the decision at all?  The answer to this question will depend on the circumstances of the particular family.

For example, we are commonly now seeing that parents who agree to attend a mediation to discuss and try to reach an agreement on the arrangements for their children are adopting one of the two following practices to ensure their children also have a voice in the decision:

  1. Attend a child inclusive mediation.

Unlike the suggestion of the name, the children do not actually attend at the mediation with their parents.  Whilst mediations are run differently by different mediators, generally the mediator will spend time with the children prior to the mediation.  The mediator is trained to create a comfortable and safe environment for the children to share their views on the issues to be discussed at mediation.  Those views can then be brought into the mediation through the mediator.

  1. Obtain a family report prior to mediation

A family report is written by a family report writer, who is usually a social worker or psychologist.  The purpose of the report is to provide recommendations on what parenting arrangements are in the best interests of the children.  In making recommendations, the report writer gathers information through interviewing both parents and significant others, the children (if they are old enough) or observing the children with their parents (if they are not old enough to be interviewed).

A family report is often ordered by a court in parenting proceedings to assist the court in gathering evidence as to what arrangements are in the best interests of the children.  Increasingly however, parents are choosing to obtain a family report privately to assist them in making decisions for their children outside of the court process.

A family report is another way in which children can have their views heard by both parents and is an asset in a mediation. However, ultimately it is the parents or court who have the final say in the children’s care arrangements.

It should be noted that how much weight is given to the views of children will depend on the individual circumstances of the case, and in particular, the age of the children and their maturity.  Whilst children do not get to decide their own care arrangements, the more mature and older they are, the more weight that will usually be given to their views.

The recent High Court decision of Bondelmonte confirms that even children who are mature and approaching the age of 18 are not able to decide their care arrangements.  In that case, the children who were 15 and 17 at the time, were ordered by the court to live with their mother, despite both children expressing that they wanted to live with their father.

If you are going through a separation and would like to discuss your parenting matter, contact one of our family lawyers today on 4036 9700 to find out about our fixed fee initial consultations offered in both our Mareeba and Cairns offices.

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How to separate your property and finances following separation

June 12th, 2019

One of the first questions that we are often asked by clients going through a separation is, how do we separate our property and finances and protect ourselves?

It is important for separating couples to understand that there are only two ways in which you can finalise your financial relationship, so that it is binding and recognised by the courts, namely:

1. by court order; or

2. by entering into a binding financial agreement.

Separating couples are able to obtain a court order to record any agreement they reach by consent, by submitting an application for consent orders. This is a relatively inexpensive way to formally end your financial relationship. Consent orders will only be made if the judge considers that they are just to both parties. A court order may also be made during court proceedings, if one party commences proceedings because the parties are unable to reach an agreement. The majority of our matters are resolved through negotiation or mediation and then finalised through the consent order process.

The other option is a binding financial agreement, which must be drafted and executed in accordance with the family law legislation and regulations.

If you do not formalise your property settlement using one of the methods mentioned above, then the Family Courts will not recognise your agreement and it will not be binding. This is true even if the agreement has been recorded in a deed or statutory declaration or other alternative legal form. For this reason it is important that you have an experienced family lawyer assist you in formalising your property settlement agreement. There are other benefits for couples in finalising their property matters, including receiving an exemption on paying transfer duty on the transfer of any property between spouses.

If you are going through a separation and require assistance in separating your finances and property, contact our expert Cairns and Mareeba family lawyers today on 07 4036 9700 or 07 4092 3555 to book in for an initial consultation where we will discuss how to finalise your property matters and the four step approach used by courts when determining the overall division of your assets and liabilities.

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A home buyer’s nightmare – property inspections failing to find fault

February 15th, 2019

A buyer is awarded only $500.00 for a building inspection report that missed extensive termite damage.

Building and pest inspection conditions are incredibly common in property contracts these days.  When purchasing a house or unit, it is always recommended that you engage a qualified inspector to look over the property for problems.  Building and pest inspection conditions generally allow a buyer to terminate the contract if significant problems are discovered with the buildings or improvements.

But what happens when major issues are not picked up in the building and pest inspection?

A recent decision of the Victorian Civil and Administrative Tribunal (“VCAT”) highlights the importance of reading the ‘fine print’ in building and pest inspection reports if you are purchasing a property.

Garrett v Elim House Pty Ltd [2018] VCAT 1862

The Garretts purchased a 100 year old timber house in 2014, for $172,000.00.  As part of the conveyancing process they engaged Elim House Pty Ltd (“Elim”) to conduct a pre-purchase inspection of the property.

After receiving the report, they decided to go ahead with the purchase.  Shortly after the sale was finalised, the Garretts discovered that there were significant structural issues with the house, including extensive termite damage.  Following the discovery of these issues, it was suggested by their builder that the house was beyond repair and should just be demolished and they should start fresh with the building.

The Garretts commenced proceedings in VCAT against Elim, claiming (among other things) that:

  1. the representations on Elim’s website, which they relied on when selecting Elim to inspect the property, were misleading and deceptive; and
  2. the inspector failed to inspect the property with due care and skill as required by the Australian Consumer Law.

Elim’s website marketed their services as thorough and technologically advanced as well as gave the impression that hidden problems would be found.  However, the report that was produced by Elim limited the scope of the inspection to a visual inspection only.  A visual inspection is standard for pre-purchase building inspections completed as part of the conveyancing process.

The report also specifically excluded some areas of the property from inspection because they could not be accessed.  This included the sub-floor where the majority of the damage was later found.  The property was tenanted at the time of the inspection and furniture obstructed some of the view of the property, particularly areas of the internal perimeter wall.  Termite damage was also later found to have been present in these areas.

Elim had noted in its report that it was ‘reasonable’ to discern that there was termite activity in some parts of the property that were not able to be inspected.  Elim also had advised the Garretts of the problems with the floors of the property, advising them that parts of the floor were ‘soft underfoot’ and would need attention in any renovation work.

Decision

VCAT found that:

  1. some of the representations made on Elim’s website were misleading, including the representation that Elim’s inspections were especially thorough and utilised high-level technology; and
  2. Elim conducted the inspection of the property with due care and skill, as the reason the termites were not identified was because of the stated restrictions to the inspection noted in the report and the structural issues were appropriately identified.

The tribunal ordered that the Garretts be refunded the $500.00 they paid Elim for the property inspection because of the misleading representations on Elim’s website.

However, the Garretts were not successful in their claim of $344,528.00 to cover the cost to them of demolishing the house and building a new home on the land.

What does this mean for buyers?

This decision highlights the importance of reviewing a pre-purchase inspection report thoroughly and, properly considering the limitations contained in the report.  It is very common for areas of a property to be excluded from building and pest inspection reports due to inaccessibility.  It is also important for purchasers to realise that a visual inspection (which is the type of inspection that is done as part of the building and pest inspection conditions in Queensland conveyancing contracts) may not identify all issues with the property.

Some problems, such as termite damage can only be identified through an invasive inspection.  This type of inspection is unlikely to be allowed by a seller as it may, by its nature, cause damage to the property.

Prospective buyers should carefully consider the contents of a pre-purchase inspection report and the weight of any recommendations made by the inspector, along with factors such as the age and relative condition of the house.  A great way to get more information is to attend the inspection with the building inspector or speak to them following the inspection to ask them questions.

If there are items in the report that you do not understand the nature of or the consequences attaching to, seek advice.  As learnt from this decision, building and pest inspection reports are not infallible and the limitations contained in these reports reduce the scope and liability of an inspector.

An experienced lawyer or conveyancer can help you to limit the risks involved in purchasing a property and deal with issues that arise from a pre-purchase inspection.

Miller Harris Lawyers would be happy to assist you with the purchase of your next property, please feel free to contact our conveyancing team on 07 0436 9700.

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Yours, mine, and ours – The effect of marriage on a will and competing interests in a blended family

January 22nd, 2019

Being a member of a blended family can create some unique challenges.  There are very few families who conform to the “Brady Bunch” dynamic, where six children happily share two bedrooms and one bathroom and every problem is magically resolved within 30 minutes.

With sibling rivalry, competing needs for love and attention, and conflicting emotions being common themes in blended families, it is no surprise that these challenges often escalate when a spouse/parent (natural or step) passes away.  In the succession world, without a proper estate plan in place, the transition of wealth in a blended family environment can cause a myriad of problems.  The case Re Estate Grant, deceased [2018] NSWSC 1031 is a prime example of this.

Re Estate Grant, deceased 

The deceased, David William Grant (“Mr Grant”) died in December 2015, aged 55 years.

Mr Grant had been married twice at the time of his passing.  He was married to his first wife, Lisa, from October 1989 to November 2013.  Lisa had two children from an earlier relationship, Siegfried and Maximilian whom, for the most part, Mr Grant treated as his own, However, at the time of his passing, he was estranged from Siegfried.  Mr Grant and Lisa also had twin sons of their own, Jackson and Lewis.

Mr Grant’s second marriage to Katerina grew out of an extra marital affair which commenced in 2006 and continued until he and his wife Lisa separated in April 2012.  Mr Grant and Katerina commenced a de facto relationship in 2012.  He proposed to Katerina in June 2015 and they were married shortly after in September 2015.

Less than three months after they married, Mr Grant passed away from brain cancer.  Mr Grant and Katerina had no children of their own.

The will

Mr Grant made a will on or about 3 January 2014.  The will appointed Mr Grant’s brother Michael to be the executor of his estate and gifted the residue of his estate equally between Maximilian, Jackson and Lewis.

Mr Grant’s main reason for wanting to update his will, was to disinherit Siegfried and Lisa, and he wanted to reinforce their disinheritance with an express repudiation in the will.

The effect of marriage on a will

Section 12 of the Succession Act 2006 (NSW), similarly to section 14 of the Succession Act 1981 (Qld), provides that marriage of a testator (will maker) will revoke the testator’s will unless it is made in contemplation of marriage.

In the event that Mr Grant’s 2014 will was revoked by his marriage to Katerina in 2015, he would be considered to have died intestate (that is without a will) and the beneficiaries of his estate under the rules of intestacy would be:

  1. his wife, Katerina, who would be entitled to the deceased’s personal effects, a statutory legacy, and one-half of the remainder of the deceased’s estate; and
  2. Mr Grant’s twin sons Jackson and Lewis, who would be entitled to the other half of the remainder of the estate.

Maximilian would not benefit under the rules of intestacy because he is not a biological child.

Mr Grant’s estate was worth an estimated net value of approximately $4.4 million (not including personal effects) and a superannuation fund with an estimated value of $858,000.00.  Under the rules of intestacy set out above, Katerina’s share would be estimated to be approximately, $2.4 million and Jackson and Lewis’ shares were estimated to be approximately $990,000.00 each.

Competing claims

There were two competing claims brought before the court:

  1. Katerina claimed that the 2014 will was not made in contemplation of marriage and therefore their marriage in 2015 revoked the will and the rules of intestacy applied. Katerina also made a family provision claim to be considered in the event that the court determined that the 2014 will was in fact valid.
  2. Jackson, Lewis and Maximilian claimed that the will was made in contemplation of marriage, and requested that the court uphold the will as valid, so that they would receive their equal shares in the estate. Maximilian also made a family provision claim to be considered in the event that the court determined that the will was invalid.

Was the will made in contemplation of marriage?

The primary issue for the court to determine was whether the 2014 will was made in contemplation of marriage.

Maximilian, with the support of Jackson and Lewis, relied upon the following facts (and various others) in support of his contention that the 2014 will was made “in contemplation of marriage” to Katerina:

  1. Mr Grant and Katerina began their relationship as early as 2006, several years before the deceased gave instructions for the preparation of his will.
  2. When Mr Grant and Lisa first discussed separation in about 2010, Mr Grant started to discuss “long term plans” with Katerina, during which discussions on many occasions he told Katerina that he was going to marry her “one day”.
  3. When Mr Grant made such statements to Katerina in or about 2010, Katerina responded to the effect that she was willing to discuss marriage with him if and when he was in a position to marry her; meaning, that he first had to separate from Lisa, divorce Lisa and then ask Katerina to accept a marriage proposal.
  4. Via an exchange of text messages on 2 January 2011, Mr Grant sent Katerina a message to the effect “marry me”, to which she replied to the effect, “I will when you ask me properly one day”.
  5. In April 2012 Mr Grant and Lisa formally, and finally, separated, and Mr Grant and Katerina commenced their de facto relationship.
  6. At that time Mr Grant had a will that left his estate to Lisa and, if she predeceased him, favoured their four children (including Siegfried).
  7. In early 2013, on his own initiative, Mr Grant consulted a fertility clinic about reversal of a vasectomy procedure to which he had previously submitted.
  8. At about the same time, at the instigation of Mr Grant, Katerina also attended the fertility clinic to ascertain whether, if Mr Grant’s vasectomy were to be reversed, there was a prospect that she might conceive a child.
  9. On 26 October 2013, Mr Grant and Katerina attended the auction at which a property at McMahon’s Point was purchased in Mr Grant’s name (with a financial contribution by Katerina), an experience which she described in her evidence as a shared moment that signified the solidification of their future together.
  10. On 5 November 2013 the marriage between Mr Grant and Lisa ended in a divorce, preceded by a property settlement.
  11. In 2013 and 2014 (including on occasions before the McMahon’s Point property was purchased) discussions of marriage between the Mr Grant and Katerina took the form of “when we marry”, not “if we marry”.

Katerina argued that:

  1. The deceased did not make a formal proposal of marriage to Katerina until 6 June 2015.
  2. At no time before then, and particularly at no time in the early discussions of 2010, did Katerina commit herself to marriage in advance of a proposal capable of acceptance.
  3. In the 2010 discussions, Katerina said no more than that she was prepared to discuss marriage with Mr Grant if and when he was able to make, and he did make, a proposal of marriage capable of acceptance.
  4. At the time he executed his will on 3 January 2014, Mr Grant did not have in contemplation marriage to Katerina, only freeing himself from his marriage to Lisa.
  5. The will was prepared in haste and, after procrastination on the part of Mr Grant, executed in haste as a “stop gap” will to be reviewed at leisure later at an unspecified time.

The decision

The court concluded that at the time Mr Grant made his will he was living a compartmentalised life, a life in transition. When the will was drafted, he was in the process of divorcing his first wife.  By the time he executed it, he had divorced her. He had made no commitment to marry Katerina and Katerina had made no commitment to marry him, if ever he were to propose. Both were free agents, free to marry somebody else, or not to marry at all.

The court noted that although Mr Grant and Katerina had an on-again/off-again relationship over an eight year period, including a period of cohabitation in 2011, they were not cohabiting full time. Their relationship was a work-in-progress. Although marriage was from time to time discussed it remained a matter of speculation until such time as Mr Grant might bring himself to propose marriage, at which time Katerina (however hopeful she might have been) reserved a right of refusal.

Mr Grant was focused upon extricating himself from a spent marriage (severing all connection with his wife, but maintaining relationships with favoured children of that marriage), unconcerned with any prospective marriage or family obligations arising from such marriage.

The court concluded that Mr Grant’s will was not made in contemplation of his marriage to Katerina and accordingly it was revoked by and upon his marriage to Katerina being solemised.  Therefore Mr Grant was declared to have died intestate with his estate to be administered pursuant to the rules of intestacy subject to any family provision order made in favour of Maximilian.  

Conclusion

This case highlights the complexities of blended families in the context of estate planning.  Estate planning is more than just drafting a will.  The preparation of an estate plan involves a review of the state of your personal, family and business affairs with a view to determining how you want your assets to be dealt with after you pass away. Further, an estate plan should be reviewed regularly or, at the very least, in the event of any significant life changes, like marriage or divorce.  Seeking advice from an experienced wills and estate lawyer from the outset and reviewing your estate plan regularly is crucial to ensuring that your wishes are carried out and your family is not left in disarray.

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