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What can happen if you die with an outdated will?

Jean* died with an outdated will whereby the two Executor’s she had listed were unable to act because they had aged and lost capacity.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.

Advice from a family lawyer: 5 steps of divorce

Advice from a family lawyer: 5 steps of divorce

By Rianie Huggins, Associate Boylan Lawyers

 

A new year brings a fresh start for many. In the world of family law, this means I am approached by couples looking to divorce after the stresses of the Christmas season. Many couples stay together and ‘bunker-down’ through the Christmas period, often for their children. However, when the new year arrives, they decide they can’t go on. 

Deciding to divorce is a tough decision, but also a decision that takes bravery to believe you are making the right choices for your future. As a family lawyer it is my job to support couples through the next steps. Here are five steps typically involved in the divorce process. 

1. Get advice: First and foremost, it is important you receive quality advice from a family lawyer. They will help you create a plan that is specific to your personal needs and situation. Your lawyer may also direct you to speak with an accountant or financial planner.  

2. Property settlement: Find out what assets, debts and financial resources are up for negotiation regardless of who brought them into the relationship. Your lawyer will likely organise valuations and reports required to settle your property or distribute assets.  

3. Parenting Arrangements: Work with your family lawyer how much time each parent receives with the children.  

4. Wills and estate planning: Divorce automatically revokes a will. Before you settle, make sure you protect your assets, and your future wishes with a fresh will and estate planning. Not updating your will as a divorced person can lead to disputed estates in the future.   

5. Conveyancing and asset transfer: If you decide to sell the assets you own or purchase new assets, you will need help from a conveyancer that can guide you through the process.  

The success of negotiations will determine whether you and your ex settle or go to court. The court process is extensive and can be time consuming. Once negotiations or court matters are settled, you can organise conveyancing of the matrimonial home and other assets. You can also settle payments for financial distributions. Once this is complete, the process is now over, and you can take a breath.  

The above process is stressful, which is why it’s important to have the right team behind you. Boylan Lawyers can support you through every step of your separation plan. Our family law team has a combined 86 years’ experience. Get a free 30-minute consultation by calling (08) 8632 2777 or email admin@boylanlawyers.com.au 

 

Rianie Huggins, Associate Boylan Lawyers

Rianie Huggins is an Associate at Boylan Lawyers who specialises in family law, estate planning, probate, trusts and more. Rianie has extensive international and local experience in law. She loves being part of the Strathalbyn community and enjoys seeing the unique offerings from talented Artisans throughout the Adelaide Hills and surrounds.  

COVID19 and Workers Compensation Claims

COVID19 and Workers Compensation Claims

Injured Worker | Boylan Lawyers
From 23 November 2021, South Australia’s borders will be open to fully vaccinated people from all Australian states and territories, with some exceptions (SA Gov). The expected rise in COVID-19 transmission means everyone should be aware of their rights and responsibilities when it comes to safety at work and workers compensation.
 

Workplace Responsibilities

Any person conducting a business has a responsibility to ensure, so far as is reasonably practicable, the health and safety of workers in their workplace. This likely includes minimising, if not wholly eliminating, the risk of exposure to COVID-19. Consequently, workplaces are expected to continue with physical distancing, mask wearing, good hygiene, regular cleaning and maintenance, and encouraging vaccination. 

Employers should keep up to date with cleaning requirements for the various workplaces (SA Health).

Workers have responsibilities to take reasonable care for their own safety too. Workers should ensure their acts or omissions don’t adversely affect the health and safety of others. Workers must also comply with reasonable instructions and co-operate any reasonable policy or procedure relating to health or safety at the workplace. 

Employers are encouraged to read the SafeWork Australia guides and understand how to best provide a safe working environment. Read the SafeWork guides here to check if your workplace is complying with the recommendations.  

What Happens if my Workplace is Deemed an Exposure Site? 

If your workplace is exposed to COVID-19, the following guidelines for assessing and managing risk have been implemented by SA Health: 

  • General Businesses and Venues: hospitality, community sport, places of worship, retail services, entertainment facilities, higher level education, beauty and other services, information and educational facilities, major recreation facilities.  
  • Critical services and infrastructure: defence, essential infrastructure work (i.e. energy services, water services, food manufacturing), emergency services, veterinary services, and agriculture.   
  • Primary and community health care settings: medical settings, paramedics, pharmacies, pathology services, non-residential disability care. 

What Financial Support Exists if I am Directed to Quarantine or Isolate?  

The South Australian Government has outlined a pandemic leave support payment and cluster isolation payment for individuals. More information can be found here 

Alternatively, sick/personal leave, annual leave, income protection (where a policy allows), or other applicable insurance may be available to you. If you are unsure of your entitlements, you should speak to a lawyer. 

Can I Claim Workers Compensation if I Catch COVID-19 at work? 

If you catch COVID-19 and believe you caught it from work, then you can make a workers compensation claim, this is even if your employer took all reasonable steps to minimise the risk. Whether you succeed will depend on your unique circumstances. You will have to prove on balance that the infection came from the workplace, rather than another source such as exposure in the community outside of work. It is highly recommended that you speak to a lawyer if you think you caught COVID-19 at work. 

Boylan Lawyers puts the rights of South Australian workers first. If you want more information about your rights as a worker, contact our team of employment and workers compensation experts on (08) 8632 2777.  

Elias Angeletti is Senior Associate at Boylan Lawyers, specialising in employment and workers compensation law. Elias was admitted in 2014 and has since been involved in workers compensation legal proceedings before the South Australian Employment Tribunal, Administrative Appeals Tribunal, the Supreme Court of South Australia, and the High Court of Australia.  

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.