If any of these 10 changes happen in your life, it’s time to update your will

If any of these 10 changes happen in your life, it’s time to update your will

Old couple sitting on the couch smiling 

By Sebastian Hill

For your estate plan to be as effective as possible, it needs to be as up to date as possible. Quality estate planning is like having insurance in place for your family. It is insurance which protects the distribution of your assets, and ensures it’s done in the way you want. It also reduces the likelihood of family disputes arising, and unnecessary legal hurdles for your family after you die.

Not every life change needs to be updated in your estate plan, however there are some key changes which will most likely mean it’s time to update your will. Some of these life events include births, deaths, marriages, and changes in assets.

 

 

 

What can happen if you die with an outdated will?

Jean* died with an outdated will whereby the two Executor’s she had listed were unable to act because they had aged and lost capacity. There were also beneficiaries listed who had passed away and could no longer receive their entitlements.

Jean’s niece, our client, was the next person in line to be the Executor. She was required to take responsibility in dealing with the Public Trustee to prove the lack of capacity of the past Executors, and that the beneficiaries had died. The Estate took an additional 6-months to be distributed and cost the family considerable amounts of time and money.

*Names changed for privacy

 

How to know if you should update your will

Look at your current will and assess if the directions reflect your current position of what you’d like to happen when you are no longer here. Here are ten considerations which might prompt an update: 

  1. Change of mind – You might have changed your mind about who you have elected as your Executor, Substitute Decision Maker, Beneficiaries, etc. You may have also changed your mind about how you want to allocate your assets.
  2. Relationship status – Have any of your relationships changed? Such as entering a new relationship, married, re-married, divorced, or separated? If you are separated from a spouse but not divorced, they could still be legally entitled to your assets if your will is not updated.
  3. New family members – Have any children or grandchildren joined the family and need to be accounted for in your will?
  4. Health or disablement – Your medical needs may have changed, and you might need to nominate an enduring power of attorney or substitute decision maker. You might also need to make care provisions if you have dependants. Conversely, someone included in your will might have lost their ability to execute their responsibilities, meaning a new person will need to be elected.
  5. Deaths – We sincerely hope you haven’t had to face this, however if anyone elected in your will as an Executor or beneficiary has since died, this will now need to be updated in your estate plan.
  6. Changes in financial circumstances – If you have new assets in your name, or if you’ve experienced a significant increase or decrease in your estate, an update is required.
  7. Cash donations or gifts – What was once a substantial cash legacy in your will, might no longer be in real terms. With inflation on the rise, you may need to update any fixed sums in your will to a percentage instead.
  8. Gift allocation – Have you bought any artefacts or items which you intend to be inherited by specific beneficiaries?
  9. Ownership structures – If you own a business, entity, or asset whereby the ownership structure has changed, your estate plan should reflect this.
  10. Expressed wishes – Are your funeral instructions (burial/cremation) or other wishes after you die in line with your current wishes?

If any of the above changes have occurred in your life, we highly recommend you consider updating your will. You can provide us your instructions today via our online questionnaire here. If you prefer to speak to us over the phone, give our friendly customer service team a call on 07 8632 2777.

Case Study: Why you shouldn’t make handshake deals when it comes to the family farm

Case Study: Why you shouldn’t make handshake deals when it comes to the family farm

 

By Sebastian Hill  

Handshake deals between family members are a common precursor to many intergenerational farming disputes. As a disputed estates lawyer, I deal with the fall-out of handshake deals every day. Most notably, I was the instructing solicitor for one of South Australia’s largest intergenerational farming disputes in recent times, Roberts v Roberts [2021] SASC 72.  

 

The Facts

The dispute was between a father and son, whereby I acted for the applicant Mr Grant Roberts (Grant), the son of respondent Mr Jack Roberts (Jack). The dispute regarded an alleged oral contract between Grant and Jack, for the purchase of the family station, Pulgamurtie, for $2.6 million. Pulgamurtie is approximately the same size as Singapore and located outside of Broken Hill in remote New South Wales (NSW).

Over the years, and particularly in the four years Grant engaged me to work for him, Pulgamurtie increased significantly in value. By the time of trial, it was more than three times the value of the oral contract. Jack denied any agreement or discussion about the sale of Pulgamurtie to Grant for the originally agreed price of $2.6 million.

Grant had dedicated his life’s work to Pulgamurtie, always with the intention of one day owning the station. Our legal team argued that Grant had improved, maintained, and worked on Pulgamurtie, he also purchased plant and livestock. Grant acted to his detriment in reliance on Jack’s representations and encouragement that he would be the owner.

 

The Outcome

It was a privilege to act for Grant and direct a team of seven staff over four years through numerous applications, conferences, trial, and appeal court proceedings. My team was successful in arguing that Grant had established the elements of a cause of action in proprietary estoppel.

It was ordered that Grant be transferred title to Pulgamurtie for $3.8 million; based on the agreed purchase price adjusted for a change in value over nine and a half years since the first agreement. 

 

How to avoid handshake deals

The situation above arose from a simple handshake deal that was never properly dealt with. Handshake deals are usually a verbal promise in conversation that is never settled in a legal agreement and can be common among family members. If the promises aren’t kept, disputes can arise, and families end up in court.  In Grant’s case, his parents and his brother and sister all gave evidence at trial. 

The only way to avoid future disputes is to have an agreement prepared that expressly states everyone’s intentions. Now, that is much easier said than done. Often there is a very delicate balance of power between family members which should be carefully navigated to avoid raising any red flags.

Getting advice early is the number one way to avoid disputes, and your lawyer will be able to help you find ways to raise this in a sensible manner with your family members.

Sebastian Hill is the Managing Partner at Boylan Lawyers and specializes in disputed estates, intergenerational farm disputes and transfers, family law, and other practice areas. In 2022, Sebastian was named a finalist in the Partner of the Year Awards Wills and Estates category for his work on Roberts v Roberts.

Contact us today to organise a free 30-minute consultation with Sebastian Hill by calling 08 8632 2777 or email hello@boylanlawyers.com.au.

How to navigate Christmas arrangements as separated parents

How to navigate Christmas arrangements as separated parents

By Sebastian Hill, Managing Partner at Boylan Lawyers

 

Navigating the Christmas period as a separated family can be stressful. Separated parents need to plan how they’ll share time with their children on the dates of importance (i.e., Christmas, New Year’s Eve, etc.) and what travel arrangements are appropriate during COVID19.

We provide general advice on the commonly asked questions received from separated parents who are trying to navigate the festive season.

What Christmas arrangements are available for separated families?

Plenty of options are available for separated families to share time with their children throughout the holiday period. Examples of Christmas arrangements might include:

  • Children with one parent on Christmas eve and Christmas morning, and with the other for Christmas afternoon and boxing day.
  • Children with one parent for all of Christmas, but with the other parent for a couple of hours during the day.
  • Children spend all the Christmas holidays with one parent, which then changes the next year.
  • Continue with your usual arrangement if Christmas is not a significant holiday for your family.

Most importantly, both sides need to be happy with the arrangement that is chosen and commit to it. Be polite and civil during negotiations. Nothing makes a matter worse than conflict and threats.

 

What happens if my ex is being difficult and/or threatening to not go ahead with our plan?

Whether you are newly separated or have been separated for a while, it is important to understand your rights.

If you do not have a court order in place, care arrangements for children are not enforceable. The option to have a judge decide how you and your children spend Christmas is also not an option in December due to the court’s cut-off date.

At the forefront of your actions should be what is in the best interests for the child. They have a right to see both parents and share in the joys of the holidays. Either parent is entitled to make decisions about their children. However, parents need to think about the potential consequences of their actions such as litigation, difficulties with future negotiations or arrangements, and disruption to their children’s life.

Parents should talk to each other and see what arrangements they can make. Parents should also meet with their lawyer to work out an arrangement that is fairer and more concrete in the new year.

 

My ex wants to travel interstate with our children, and I am worried about COVID19, what can I do?

Generally, it is difficult to get an urgent court listing, and much will come down to the respective COVID laws in place at the time. Questions that would be considered include ‘Are the borders closed for re-entry?’, ‘What state are they going to?’, ‘What are the quarantine obligations on return?’. These are no simple questions, and each case will turn on its own circumstances.

If there is a court order, there might be a “reasonable excuse” for non-compliance with any existing order with respect to allowing travel or not. A primary carer probably faces less adverse legal consequences than a contact parent for travelling or not allowing the other to travel.

An urgent legal letter from your lawyer putting another party on notice may prevent or ensure an outcome. This might also become useful in the future.

With regards to how much the police can help, they prefer to not get involved with family matters. Police will do welfare checks (to a point) and keep the peace. They will not take your children away because the other parent has told you they will. If your children are in danger, the police will step in.

 

Family and domestic violence services are available

If you are experiencing violence or abuse, family and domestic violence services are still open over Christmas. Don’t think that it is too hard to leave or do something because everyone is closed. If you are not sure what or where to ask – talk to the police. If the police cannot help you themselves, they can direct you to those services who can. Help will be available if you need it.

The Boylan Lawyer’s family law team has a combined 86 years’ experience working in family law, wills and estates, and probate. We are committed to protecting the rights of individuals and families. Clients are now supported from offices in Adelaide CBD, Port Pirie, Strathalbyn, Victor Harbor, Port Augusta, and Whyalla.

 

Book a free family law consultation today by clicking here.

 

Sebastian Hill, Managing Partner

Sebastian Hill is the managing partner at Boylan Lawyers. Sebastian oversees all practice areas and has a specialist interest in family law, estate disputes and intergeneration farm transfer. Sebastian provides clients with clear, considered, and practical advice.

Sebastian is a passionate contributor to the legal profession in South Australia having served as a member on several Law Society of South Australia Councils and Committees and as a board member of Westside Community Lawyers.

Contravening Parenting Orders During COVID-19 Lockdown

Contravening Parenting Orders During COVID-19 Lockdown

Co-parenting COVID-19 | Boylan Lawyers

COVID-19 has caused a great wave of issues throughout our community. One of those issues has been the significant increase in disputes regarding the care of children in separated families. Some parents have elected to depart from the usual care arrangements without consultation with their counterpart. This has resulted in a variety of disputes concerning the contravention of an order whereby a parent has intentionally failed to comply with an order.  It has also aggravated issues that would have otherwise remained dormant. 

The increased of the rising disputes is evident by the need by the Family Court to create a special Court list for parent related disputes that arise due to the coronavirus. [See: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/news/jpd032020]

The general comments by the Family Court have been that parties need to use common sense as a result of their response to the challenges created by the pandemic.

Unfortunately, such common sense is not always possible among parents because there is a level of animosity which makes it very difficult for reasonable discussions to take place. 

What is in the interest of the child remains the paramount consideration.  Family Law Act 1975 (Cth) sub-div. F div. 13A pt. V11, s. 43(1)

Kardos & Harmon [2020] FamCA 328 (7 May 2020) is a recent judgement in the family Court which highlights the need for parents to be pragmatic when dealing with the COVID-19 pandemic.

In that matter, the father lived in Brisbane and made an application that final orders had been contravened by the mother who resides in Adelaide. The mother contended that the circumstances of the COVID-19 pandemic provided a reasonable excuse for her not to travel to Brisbane to deliver the child.  The court found that the mother had not contravened the final orders and had established that she had a reasonable excuse for non-compliance with them. The Court went on to vary the final orders to facilitate the father spending time with the child. The net effect of the court’s orders were that the father would need to travel to Adelaide, and be subject to quarantine requirements, should he wish to see the child however in the event that he did not travel to Adelaide then the child would have make up time with him at a later date.

Kardos & Harmon provides some guidance to parents in different states or territories, but it becomes more difficult for those within the same state.  In those cases, whether there is a reasonable excuse is a far more difficult question to answer.  Those parents who tie themselves to the public health notifications (such as https://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/conditions/infectious+diseases/covid+2019/coronavirus+disease+2019+covid-19), which are considered by the Court, will most probably find it difficult as the restrictions ease.   Not long ago most state governments were considering whether schools would be open or not and parents choosing to keep children at home for their safety. Things have changed dramatically since then and now what was once a reasonable step would now be seen as unreasonable.  This should cause great alarm for those parents who have acted unilaterally to contravene orders under the guise of a reasonable step in response to COVID-19.  In hindsight, their actions will not be viewed positively.

Different judges will have different interpretations of when a party is acting from a health and well-being approach as opposed to capitalising or taking advantage of the crisis. It would depend on the context and history of the particular matter and the nature of the contravention.  The result is that parents must seek legal advice to understand their position in light of their specific circumstances. Those who are opportunistically taking advantage of some of the restrictions should be immediately cautioned and asked to reconsider their position. 

In addition to getting specific legal advice about parents breaching orders because of COVID-19 restrictions, there are also resources that can help guide parents with the difficulties of managing parenting during the pandemic. One of those resources has been produced by the Law Council of Australia and can be found below. It provides practical steps that can assist parent’s with coping. 

The time taken to traverse the Family Court system is increasing exponentially with these matters.  There is always an opportunity to privately mediate the issues in order to reach a pragmatic compromise however if that is not possible then matters must be advanced as a priority rather than being delayed as each day goes by.