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September 2017

Monthly Archives

Is it time to review your will?

By Sarah Camm

It is suggested that you review your will every 12 months to ensure it is still appropriate and reflects your current wishes. This may seem excessive, but the circumstances which can affect the validity of your Will can be life changing, momentous, stressful, exciting, devastating times. Alternatively, the change might be something you consider incredibly minor, with no impact on anyone but yourself. In either case a redraft of a dusty old document that’s out of sight in a safe somewhere is often the furthest thing from your mind.

 

Below is a list of events that almost everyone experiences in their lifetime. Read on to see which will mean a redraft, and which you can celebrate without calling a lawyer.

 

  1. Moving house

Most Wills begin by stating your name, address and occupation, but a change in any of these does not necessarily mean you need a re-draft. If you die and your most recent address is different to that in your Will, your executor may need to add an extra sentence to documents that they need to fill out, however this is unlikely to cause delay or increased costs in administering your estate.

 

  1. Buying/selling

If you have moved because you bought or sold a house you should consider:

  • whether you have given the house specifically to a particular person in your Will: if you no longer own a gift you specifically left someone in your will then this gift will fail, and the person you gave it to may not receive anything!
  • whether this creates a disproportionate distribution: if you leave all your houses to Jill and all your cash to Jeff, but then you use all your cash to buy more houses, Jill may receive more and Jeff less than you intended.
  • whether you have given permissions or rights regarding the property: you may wish to allow the guardian of your children to raise your children in the “family home”, and in doing so may have requested your executors not sell a specific property. You should ensure that, if the “family home” changes, your Will reflects this.

 

  1. Name changes

Ideally your Will should state your full, proper and current name as well as the full, proper and current name of your executors, trustees and beneficiaries. Similar to changes in address however, name changes may be explained by the executor in an affidavit or statutory declaration.

 

  1. Marriage

If you get married, your existing Will is automatically revoked except for dispositions made to your new spouse. Any gifts you left to any other person will fail. Unless you execute a new Will following your marriage then your estate will be dealt with in accordance with the intestacy provisions, which may mean your wishes are not followed. The only exception is where your Will was made “in contemplation of marriage”.

 

  1. Entering a civil partnership

This has the same effect as marriage.

 

  1. Entering a de facto relationship

Moving in with your significant other has no effect on your existing Will. If you have not provided for your spouse in your Will they will not receive a part of your estate, and if you have been living together for 2 years, they can contest your Will if you die.

 

  1. Divorce / ending a civil partnership

A divorce will void certain provisions of your Will, but will not void the Will altogether. The same is true where a civil partnership is terminated or found to be void. This could create some strange outcomes, and possibly lead to litigation.

 

  1. Separation

Unlike divorce, separation from a spouse (whether you are married or not) will not usually cause your Will or any of its provisions to automatically be revoked. A disposition of your entire estate to your partner could be enforced even though you separated years ago. This may have significant negative implications, particularly where you have children (from a new or previous relationship), a new spouse or partner or other family members you intended to receive your estate.

 

  1. Death of a beneficiary

Most Wills allow for “substitution”, so that if a person who was to receive a share of your estate dies before you or before attaining their interest, the gift passes to someone else instead. If you know a beneficiary has died, you should review your Will. Check whether your substitution clause makes sense, and that the chain of events you once thought unlikely does not have a strange, unwanted effect on your estate.

If a gift to a beneficiary fails and there are no substituted beneficiaries, then that specific gift will be passed with the residue of your estate (i.e. what is left after you have made specific gifts). If you do not have a residuary clause, or if the gift that fails is the gift of residue, then part of your estate may be distributed in accordance with the intestacy rules, which may not be in accordance with your wishes.

 

  1. Birth of a child

You may not need to redraft your Will after having a(nother) child, but you should definitely check it. If you left gifts to your children by naming them specifically rather than leaving your estate to “any child of mine alive at the time of my death”,a child who is not named may need to apply to the Court in order to receive an inheritance.

 

  1. Death of a testamentary guardian

You named a person who is important to you and who you infinitely trust to be guardian of your children should you die. If this person dies, it is important that you review your Will. Have you appointed a substitute guardian? Many people list a sibling as their first-choice guardian and often will list that sibling’s spouse as the substitute. Are they in a position to care for their children as well as yours, potentially as a single parent? Or you might have listed a parent of yours as the substitute guardian. Does their health, financial situation and living environment mean they are able to care for your children, potentially for a number of years? This is one of the most important decisions you have to make in your Will, and if the clause fails a difficult time in your family members’ lives could become even more terrible. You should discuss it with your family and determine who would be best placed to care for your children given a number of potential eventualities.

 

The above list is not exhaustive, and there are many events big and small which may have an effect on your Will and the administration of your estate following your death. You must never change your Will by simply writing on it. You should consult a solicitor to determine how best to incorporate your change in circumstances and current wishes.

A Wills & Estates solicitor can assist you to work through a number of best – and worst- case scenarios, and ensure that your Will is as certain as possible, and reflects your wishes. At Just Us Lawyers we have experience in drafting Wills for clients with a wide range of circumstances. Contact Just Us Lawyers at Kelvin Grove today to enquire about drafting a new Will that reflects your wishes today.


Employment Law: Strict time limits enforced for filing applications late

By Tara Holland

In recent Just Us News, Ted Besley, Special Counsel at Just Us Lawyers has successfully argued against an application for General Protections as the application was filled outside of the required 21 days.[1]  The case highlighted the importance of filing unlawful dismissal applications on time, and most importantly, the circumstances where an exception to the strict time limits might be granted.

In order to file a General Protections Application (“an application”) under Part 3 of the Fair Work Act 2009 (Cth), an employee who believes they have been unlawfully dismissed must lodge an application 21 days after the dismissal took place, not the day the dismissal took place.[2]

In Amani Rogers v Tursa Employment and Training Limited (“Rogers v Tursa”), Mr Ted Besley argued that filing an application one day late amounted to a breach of the time limits for filing an application.  It was noted, that the Commission does allow for a further period for an applicant if there are ‘exceptional circumstances’.[3]

The Applicant argued there were exceptional circumstances for her delay in filing the application, however, she could not provide a ‘credible reason’ for the whole of the period that the application was delayed. The Applicant claimed part of the reason she was delayed was she had been looking for work.  The Commission found that looking for work did not hinder her completing and lodging her application on time.[4]

It is well settled case law and restated in Rogers v Tursa that exceptional circumstances must be “out of the ordinary course, unusual, special or uncommon.[5]

There are five criteria for exceptional circumstances:

  • the reason for the delay;
  • any action taken by the person to the dispute the dismissal;
  • prejudice to the employer (including prejudice by the delay); and
  • the merits of the application: and;
  • fairness as between the person and the other person in a like position[6].

The Case for this test is Cheyne Leanne Nulty v Blue Star Pty Ltd[7] in which the full bench summerised the expression ‘exceptional circumstances’ as, ‘out of the ordinary course, or unusual, or special, or uncommon… Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered.’

What circumstances are ‘exceptional’:

  • a legal representative error;[8]
  • mental health (must provide relevant evidence) which directly affects capacity to make application;[9]
  • representative unable to access office computers during flooding in Brisbane from Cyclone Debbie.[10]

What are not ‘exceptional’ circumstances:

  • moving house and seeking advice on matter;[11]
  • applicant submitted lack of legal knowledge;[12]
  • unsure of dismissal date.[13]
  • Looking for work[14]

Please be advised that this article provides general information regarding General Protections and is not meant to be relied upon as advice, everyone’s case is different. If you require help with a legal matter please do not hesitate to contact Just Us Lawyers.

Further information regarding General Protections can be found at the Fair Work Commission

Just Us Lawyers act for employers and employees. If you find yourself involved in an employment dispute our team of employment experts will get you through the system, whatever side you are on.

[1]Amani Rogers v Tursa Employment and TrainingLimited [2017] FWC 4314

[2] S366(1)(a) of the Fair Work Act 2009 (Cth)- lodgment does not include the day and accordingly the Acts Interpretation Act 1901(Cth) state times is expressed as to begin after the specified day, meaning the day after the dismissal.

[3] Fair Work Act 2009 (Cth)s366 (2), Cheyne Leanne Nulty v Blue Star Pty Ltd [2010] FWA 6989.

[4]Amani Rogers v Tursa Employment and TrainingLimited [2017] FWC 4314[22].

[5]Amani Rogers v Tursa Employment and TrainingLimited [2017]FWC 4314, 34.

[6] Ibid in Cheyne Leanne Nulty v Blue Star Pty Ltd [2010] FWA 6989.

[7] [2010] FWA 6989 [13].

[8]Edwards v Tiger Airways Australia P/L t/a Tigerair [2017] FWC 4021 (9 August 2017);Kemp v Real Pet Food Company t/a VIP Petfoods (Aust.) P/L [2017] FWC 3898 (26 July 2017)

[9]Appeal by Shellum against decision of Ryan C of 4 May 2017 [[2017] FWC 2429] Re: Grill’d P/L t/a Grill’d Healthy Burgers

[10]Hanson v Blueprint Global P/L [2017] FWC 2660 (15 May 2017)

[11]Appeal by Ibrahim against decision of Roe C of 31 January 2017 [[2017] FWC 611] Re: I Sec Security t/a ISEC [2017] FWCFB 1379 (9 March 2017)

[12]Turner v Metropolitan Fire and Emergency Services Board [2016] FWC 8036 (30 November 2016)

[13]Solanki v M-Power Community Services Inc [2016] FWC 8126 (11 November 2016)

[14]Amani Rogers v Tursa Employment and TrainingLimited [2017] FWC 4314