Executing your Will during COVID-19

One impact of the COVID-19 pandemic is that many people have prioritised making or reviewing their current Will. Formalising your wishes in a Will can understandably put anxious minds at ease and it’s no surprise that there has been a recent surge in this area.

There are some hard and fast legal rules surrounding the making of a Will. We cover off on the execution requirements for Wills and your options during COVID-19.

Your Will must be executed in the presence of two independent witnesses

With social distancing, this might be a big ask but it is a requirement for a Will to be considered formal.  Failure to execute your Will formally may mean your Executor has to apply to the Supreme Court to have your Will declared valid. It is always recommended that you prepare your Will in the correct way.

 What if I am in quarantine?

If you are under self-imposed or government mandated quarantine and cannot access two independent witnesses, there are new rules for executing your Will applying between 1 March 2020 and 30 September 2020. You may be able to execute your Will in the presence of two independent witnesses by way of video conference, provided you fulfil a range of other requirements. Many legal professionals are already offering flexible solutions for the execution of documents and these new rules will enable them to provide services as a last resort, where physical attendance is not possible.

Preparing your Will in the correct way with the help of an experienced legal professional can save time, money and headaches for your loved ones down the track. If you’d like to get in contact with us to make or amend your Will or ask us a question about executing your Will during COVID-19, contact our friendly Wills and Estates team or you can start the process online.

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon

Verification of identity during COVID-19

This week in Keeping it Legal, we want to discuss formal identification (ID) requirements in the time of COVID-19. 

For many legal processes, such as writing your Will or purchasing a property, there is a verification of identity process that must be followed, usually requiring your lawyer to physically view two forms of your photo identification. Your ability to provide ID may be impacted if you are under self-imposed or government mandated quarantine and there are ways that the legal profession is adapting, including the use of drive-through verification of identity stations and digital technology. Be prepared to supply your ID in new ways during this time.

We’ve had to adapt in other ways to provide the service and support you expect from us: 

  • We’re offering all services from both Springfield and Ipswich offices so that we are as accessible as possible.
  • We are limiting face-to-face contact and are conducting appointments via digital methods where we can.
  • We’ve taken our services mobile and can travel to you to deliver services such as the execution of documents.

Contact our friendly team to find out more. We want to assure our community that we are open and ready to help you during COVID-19.

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon

Documented gifts and loans can save family disputes

THERE have always been loans and gifts between family members, often between a parent and a child or children.

These payments are rarely documented and the intention of each party is often not clear. This can lead to significant family concern and dispute, both before a person dies and with their Will.

For example, a parent may think of it as a loan and the child, a gift. It is important that whatever the payment is it should be documented and clear and understood by both parties.

If it is a loan, what are the terms of repayment and is there any interest and in what circumstances? Is the loan forgiven on death or is it to be paid from that child’s share of the parent’s estate? Are there enough assets or the correct type of assets to allow the loan to be offset?

These gifts and loans have always been common family arrangements but they are becoming more important because the amounts involved are greater and there is a higher tendency for family members to dispute Wills.

The law in relation to loans and gifts is complicated and it will sometimes be assumed that a payment from a parent to a child is a gift unless there is some evidence to the contrary. If it is a loan or a gift, what happens with other children or family members? Are there similar loans or gifts to them? Is there any adjustment in the Will?

It is important that whatever the payment is, it is correctly documented and signed by both parties to include any terms of payment or interest. The Will of the person paying the money should also be updated to make it clear if any such loan is forgiven on death or is it to be offset against that child’s share of the estate and against what assets.

A level of family disputes and distress can be greatly reduced by these simple measures.

Until next week – Keep it Legal!

Gerard Pender
gpender@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon

Deliberately lit fires: Arson is a criminal offence

LATELY, Queensland has been subjected to a number of bush fires which has put all our firefighters under substantial strain.

While some of these bushfires have started from natural causes, some of these fires have been deliberately lit.

Under section 461 of the Criminal Code, arson is when any person wilfully or unlawfully sets fire to any building, structure, motor vehicle, train, cultivated vegetable produce, mine etc. and will be liable to imprisonment for life.

Further, there are charges relating to endangering a particular property by fire or setting fire to crops, both of which have a maximum penalty of 14 years’ imprisonment.

It is clear charges are not to be taken lightly.

The court could determine that the cost of requiring the fire brigade, an investigation and potential threat to life are aggravating features of the crime. Along with the potential for imprisonment, a person may find that they are also subject to restitution amounts for damage to any property.

The State of Queensland provides daily reports on fire threat levels along with fire bans and we should all be vigilant in following the bans.

These can also have penalties imposed should a person ignore the ban.

We need to be fully aware of the devastation bush fires cause and the danger they put our firefighters and volunteers in. Be vigilant and do not light, maintain or use a fire in the open air so we all ensure the safety of our community, property and the environment but especially those who are involved in preventing the spread of fires.

Check the RFS website at www.ruralfire.qld.gov.au for up to date information.

Until next week – Keep it Legal!

Matthew Fairclough
mfairclough@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

Overseas assets and travel highlight the need for an Enduring power of attorney

EVERY adult should have a current enduring power of attorney.

Most do not and while older people are now making powers of attorney, we are obviously all prone to accidents, illness or injury regardless of our age.

The situation becomes more complicated if people have assets in different countries or live or spend significant time in more than one country. Sometimes it is advisable to have a power of attorney in each country which you spend significant time or have significant assets in.

As our society lives longer with more assets and more complex families, the importance of powers of attorney has become far greater. Many of us are remarrying or are re-partnering in older age which complicates whom we appoint to make decisions for us and when.

Our attorneys can make most decisions we could make for ourselves but not all.

Many of us are travelling extensively and living for longer periods away from home. Do you want your attorney to be able to make financial decisions for you from the date of the document, including decisions if we are absent or uncontactable? If so, then this can make your power of attorney more flexible.

As we age, it can also be an advantage that your attorney can make financial decisions from the date of the documents to assist us if we become more frail and if decision making becomes more difficult for us.

Many clients are now including additional powers in the powers of attorney allowing their attorneys to make “conflict of interest decisions”, decisions in relation to extending superannuation nominations, and many other matters. What other provisions should be in your power of attorney? Is your power of attorney up to date?

Until next week – Keep it Legal!

Gerard Pender
gpender@walkerpender.com.au

*The legal information in this article if of a general nature only and not intended to be legal advice to rely upon

Consider overseas assets when making a Will

PEOPLE usually understand the importance of having a Will although statistics say that most Australians don’t have one.

If you don’t have a Will then the finalisation of your estate and affairs will inevitably be more expensive, complicated and uncertain. The issue becomes even greater when people have overseas assets.

There is an increasing number of Australians who have family, investments or property overseas. Different countries have very different laws in relation to Wills and inheritance which reflect their histories and culture. Many European countries, for instance, have laws which automatically determine how some property is divided on death and a Will can play a lesser part in someone’s affairs.

It’s important to establish where a person lived or was “domiciled” at the time of their death as this may determine in part the laws of which country apply. In addition, what are called “immovables’’e.g. real property is often governed by the law of where the property was located whereas “movables” e.g. bank accounts are governed by the law in the country or state where the person lived or was domiciled.

It is also necessary to determine whether a person should have one Will covering assets in all countries or multiple Wills in multiple countries and this can only be determined by looking at the nature of the assets held by that person, where they live or are domiciled, and the laws of each country.

Sometimes it is easier when you are administering an estate, to have a separate Will in each country where the assets are located. Costs and administration complications can be less.

Anyone with assets or inheritances in more than one country needs to think about their Will and its provisions. They should also consider an EPOA.

Until next week – Keep it Legal

Gerard Pender
gpender@walkerpender.com.au

*The legal information in this article if of a general nature only and not intended to be legal advice to rely upon.

Posting revenge images on social media is an offence

THE Criminal Code (Non-consensual Sharing of Intimate Images) Amendment Act 2019 makes it an offence for a person to “distribute, or threaten to distribute, an intimate image or prohibited visual recording”. Intimate image has a wide definition and is set out in s207A of the above Act. An “intimate image also includes an image that has been altered or photo-shopped to make the person appear to be in a state of undress. These terms are not the subject of any clear definition.

The prosecution obviously bears the onus of proving the images are indeed of the person alleged. A prohibited visual recording is also defined and includes circumstances where a recording is made of an individual “in a private place or engaging in a private act, made in circumstances where a reasonable adult would expect to be afforded privacy”. Obviously this includes circumstances where someone is showering, bathing or using a toilet.

The Legislation defines the term “distribute” broadly which includes communication of the material, exhibition of the material or sending/supplying it to another person.

Obviously it is not an offence if consent has been given for the distribution of the material and consent is defined as meaning consent that has been freely and voluntarily given by a person with cognitive capacity to give consent. A person under the age of 16 years is taken not to have consented.

There is a defence under Section 223 (4) of the Act, if the conduct constituting the offence is for a genuine artistic, educational, legal, medical, scientific or public benefit purpose and the conduct of the person was in the circumstances reasonable for that purpose

The maximum penalty, if convicted of an offence under the Section, is three years.

Until next week – Keep it Legal!

Matthew Fairclough
mfairclough@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

Obtaining approval before allowing children to travel

LAST week, we mentioned that where parents cannot agree, a judge will give consideration to allowing or preventing children to travel overseas.

Upon considering any application seeking an order preventing or allowing children to travel, the judge will give consideration to the purpose for the children travelling overseas.

If the travel is for a relatively short period and for the purposes of a holiday, the judge may consider this to be in the best interest of the children but may set conditions regarding that travel which may include the parent travelling with the children to provide to the other parent;

  • A detailed itinerary of the overseas travel;
  • Contact details for the children whilst overseas including accommodation details;
  • Flight details, departure and return dates, flight numbers and copies of the relevant airline tickets including the return ticket;

A judge may also order that the parents are prohibited from taking the children to a country that is not a signatory to the Hague Child Abduction Convention.

If the judge considers the risk of flight of a parent with children to be too great, and/ or that the intended country of travel is not a signatory to the Hague Child Abduction Convention, and/or if the financial circumstances of the parties are such that security cannot be provided by the parent intended to travel overseas, the judge may order that the children may not be removed from Australia and that the children’s names be placed on the watch list at all airports throughout Australia.

Until next week – Keep it Legal!

Kevin Murray
kmurray@walkerpender.com.au

* The legal information in this article is of a general nature only and not intended to be legal advice to rely upon