QLD Estate Lawyers

Does “fishing gear” gift include deceased’s commercial fishing licence?

Jimmy Sisalio — Mon, 23 Dec 2019 06:14:58 +0000

In his last Will, Alan Davies gifted his fishing gear to son Neville.

Whether or not that included the deceased’s commercial fishing licence was a point of disagreement between the two executors. An application was made to the Court for a determination.

Alan died in September 2014, appointing sons Bevan and Michael as executors under his last Will made in January 2010.

The relevant clause read:

“As to all of the fishing gear owned by me at my death including my 37 foot fishing trawler, for my son Neville Brian Davies provided he shall survive me for his sole use absolutely”.

The deceased still had the trawler, the Ajax, at his death as well as 5 dinghies, a jet boat, and associated gear such as ropes, blocks, tackle and tools and equipment used on the boats.

He had held a fishing licence for many years and still held it at his death. The licence allowed commercial fishing from the Ajax. Although such licences can be separated from the vessel specified this had not occurred here.

The licence extended to various commercial fisheries along most of the Qld coast and allowed among other things:

The Ajax to be used to take fish for trade or commerce
The use of a tender boat to take fish for trade or commerce in two fisheries

A court can only consider “extrinsic” evidence – ie information other than that recorded in the will itself – if the terms are themselves meaningless or ambiguous; or if such evidence is “otherwise admissible”.

The terms of the gift of fishing gear were not meaningless.

Neither were they ambiguous.

But when the question came before Justice Thomas Bradley in the Queensland Supreme Court, he was of the view that extrinsic evidence of Mr Davies’ intentions ought to be considered in relation to his understanding of the “fishing gear” gifted to Neville.

Neville’s siblings Michael and Elaine swore their father’s intention was for Neville to have the boat, but that the licence was to pass to all 4 siblings.

Justice Bradley did not give much weight to their evidence because it did not address the issue of what their father had been thinking at the time he made his will.

On the other hand – the deceased’s friend and commercial fishing partner for 3 decades – Arthur Williamson – swore Alan was intent on keeping his fishing licence current and not selling the Ajax even after he had retired in 2005.

Rather than sell the Ajax – according to Williamson – Davies was intent on retaining it and the licence because Davies “expressed to him the intention that Neville was to ‘have the boat and the licence’”.

Williamson’s testimony – accepted by the court – was that he had several discussions with the deceased on this subject before and after Mr Davies had made his will.

That evidence was corroborated by the deceased’s son Bevan ie that the deceased had told him he was keeping the Ajax so that Neville could resume fishing when he returned.

The Court found on the evidence that it was the deceased’s intention that the gift of “fishing gear” included the fishing licence, as well as the dinghies and the jet boat which were used as “tenders” for the Ajax.

“It is startlingly unlikely that,” ruled his honour “the deceased would have made the specific bequest to Neville of the Ajax and all its associated fishing equipment but have intended to leave him unable to use any of it for commercial fishing, or be beholden to his three siblings to allow him to use the licence…”.

Justice Bradley ordered that the costs of all parties be paid out of the estate. The genuine disagreement between the executors and beneficiaries had properly been bought before the court and the proceedings had been dealt with succinctly by the parties.

Davies v Davies & Anor (No 2) [2019] QSC 294

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Court considers dementia will to stop daughter-in-law gain

Peter Carter — Tue, 30 Apr 2019 06:04:26 +0000

Jim Jones made application to the Supreme Court for the alteration of his wife’s will to prevent their daughter-in-law gaining an interest in her $4.5 million property in Smith Street Mackay in the divorce proceedings against their son.

The application was brought under s 22 of the Succession Act for an order authorising the son’s benefit be held on trust – rather than as an outright gift – by way of a draft codicil presented to the court.

Jenni Jones had Alzheimer’s disease and lacked legal capacity to make a new will herself.

Jim and Jenni had been married for 55 years and he made the application in his capacity as her attorney under an enduring power of attorney dating back to 1992.

Her will was had been written in June 1998.

The “change of circumstance” relied on to support the application was the separation in May 2014 of the son as beneficiary and his wife, the respondent to the application.

The court was urged to alter the will to prevent the asset being treated as property of the marriage to which the estranged wife may lay claim.

The court accepted that the change proposed by the codicil was “an alteration that the testator would have made if she had testamentary capacity”.

This was particularly so given that she had always said that the money she had inherited from her parents that was invested in the property “should remain in the family”.

But evidence from the solicitor who prepared the will was that he had advised her about the availability of a testamentary trust and how it would have protected such asset in the event that was now unfolding.

Regardless, Justice Peter Flanagan was not prepared to make an order that would have such an impact on the property available to be considered in family court proceedings.

His Honour was not satisfied that it may be “appropriate” that such an order be made.

The court ordered that both parties have their legal costs paid from Mrs Jones’ assets. An order was also made supressing the identity of the testatrix to whom we have given the fictional identity of Jenni Jones for this post.

ADT v LRT [2014] QSC 169 Flanagan J 06/08/2014

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Does death become her? Solicitor wins on two week Will delay

Peter Carter — Tue, 30 Apr 2019 05:59:09 +0000

How urgently should a solicitor treat instructions for a new will from a frail but healthy and alert 94-yr-old, living independently with the assistance of a carer?

That question confronted Sydney city centre lawyer Graham Howe who took instructions from Marie Fischer at her home on 25 March 2010 just prior to easter.

With her concurrence he proposed a draft of her new will – her ninth – be sent for consideration by post and he would return to her residence two weeks later, after the public holidays.

French born Madame Fischer died at the beginning of the week he was to return.

Her 72-yr-old son Henry and granddaughter Lilly sued Howe for not working more quickly to secure the greater benefits they would have received under the new will which reduced a bequest of 30% of the residuary estate to her carer and the 10% destined for international aid organisation Medecins San Frontieres.

Lilly settled her claim before trial but Henry was rewarded for pressing on with a judgment in May 2013 for 950k in damages and interest.

The trial judge ruled that the nonagenarian ought to have been accorded the same urgency as “a client who is dying in a hospital bed or about to make an overseas trip” and that it was unacceptable that Howe scheduled his return solely “to suit his own commitments”.

Howe’s retainer was, according to Justice Christine Adamson of the NSW Supreme Court, “to give legal effect to the deceased’s intentions and not merely to prepare a formal will and arrange for its execution”.

The appropriate course, in her honour’s view was to have the testator sign “an informal will” at the conclusion of the March meeting to take into account the risk of her dying or “falling and sustaining a serious injury or having a stroke or other cerebral event”.

She was referring to Section 8 of the NSW Succession Act (the equivalent of Qld Succession Act s 22) allows testamentary instructions signed in a way that fell short of the formal necessities for the making of a formal will, to be validated in some circumstances by the court.

Howe should have been alert to such measure and should have “procured” a signed memorandum recording her intentions on the spot.

Three appeal judges unanimously rejected all of her honour’s rulings.

There was, in their view, simply no justification for categorising the urgency for her will with that of a person on their deathbed in hospital.

While “it is obvious that a person aged 94 has a life expectancy shorter than someone of age 34, 54 or 74, …there was nothing to indicate that Mrs Fischer’s medical condition was such as to indicate impending death”.

But most importantly, the retainer was to prepare a formal will and arrange its subsequent execution. Such course had been followed for each of the eight previous wills the testator had commissioned.

Mme Fischer had accepted the proposal that a draft will would be sent to allow re-consideration of who should be appointed as executor and of the altered bequests themselves. The proposition that the solicitor was commit her to a testamentary intentions – then and there at the time of consultation – was nonsense.

But even if the trial judge’s formulation of the retainer were to be accepted, the most that would have been required of the solicitor – so ruled the court – “was to advise his client of the possibility of immediately signing a memorandum of instructions that might, in the event of a calamity occurring in the next two weeks, be produced for adjudication”.

There could never have been any duty to “procure” the client to do anything in response to that advice.

Howe v Fischer [2014] NSWCA 286 Beazley P Macfarlan JA Barrett JA 26/08/2014

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13 years on a slab; QLD court rejects daughters’ plea to stop mother’s burial

Peter Carter — Tue, 30 Apr 2019 05:56:21 +0000

In what Justice Hugh Fraser labelled a “terribly sad case” even a plea to merely view their mother’s body, was also shut down.

June Woo died at the Princess Alexandra Hospital in November 2002. Her daughters sought an inquest on the grounds that the death was due to the hospital’s negligence.

Woo’s corpse was kept in a Queensland mortuary until 2009 when the coroner concluded against the sister’s allegations.

The trio took to the Supreme Court to have the coroner’s decision reviewed and to injunct any burial. Those applications failed in mid-2010 and their appeal was withdrawn in early 2011.

The siblings then requested the coroner to release the body to Simplicity Funerals to conduct the burial. However they subsequently refused to allow Simplicity to bury the body because – they claimed – the cadaver contains another person’s organs and that those of their mother are missing.

In January 2016 Justice Martin Daubney ordered Simplicity to act upon the direction of the chief executive of the Department of Justice & Attorney-General under Burials Assistance Act s 3 to bury Mrs Woo’s remains under the rites of the Catholic Church pronto.

It was an application for a stay against the burial – pending the appeal against Justice Daubney’s decision – that Justice Fraser had to rule on.

Concluding the statutory burial must proceed because clearly “no suitable arrangements for the disposal of the body have been made,” he rejected concerns about drainage at the burial site and the garments which the sisters believed should clothe the remains.

He also refused Helena Yu’s “passionate plea” for an opportunity for a viewing because – given “the state of the body” – any viewing was “inappropriate”.

Noting the appeal had no prospects of success, he ruled in a judgment published yesterday, that the stay should be refused.

Simplicity will therefore proceed with the interment of Ms Woo’s mortal remains under the department’s directions and the Yu sisters are prevented from having any further say in the matter.

Yu & Anor v Chief Executive, Dept of Justice & Attorney-General [2016] QCA 054 Fraser JA published, 15/03/2016

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8 Important Things to Remember When Making a Will

Peter Carter — Tue, 30 Apr 2019 05:49:34 +0000

Ever wondered what you need to make a will? Today we share the 8 most important things to keep in mind…

Making a Will – 8 Important Things to Remember

1.

Start by making a list of your assets such as cash, investments, family companies, family trusts, shares, vehicles, art, jewellery and other personal possessions of value.

2.

If you have infants, consider who you’d like to look after them if something happens to you and appoint them as guardian.

3.

Appoint someone responsible and trustworthy to be your executor, as they’ll be responsible for seeing that your wishes are granted, and that your body is disposed in the manner you wish.

4.

Make a list of your major debts, and keep in mind that these must be paid first before your beneficiaries receive anything.

5.

Take time when deciding who will inherit your property, and consider alternative executors and beneficiaries.

6.

Remember to meet with your estate lawyer every few years to review your will, as succession laws and family situations change.

7.

Keep in mind that some assets, like superannuation funds and life insurance may not be distributed in a will. Ensure that your nominated beneficiaries for other policies are up to date.

8.

Store your will in a safe place, such as via LawSpace, and give written instructions of its whereabouts to your executor.

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Online Will Kits – Are They Worth It?

Peter Carter — Tue, 30 Apr 2019 05:31:37 +0000

It seems like we are doing everything online these days, from buying the groceries to doing the banking, and now with the readily available convenience of the world wide web, making an online will is just another thing you can tick off the list.

Online will kits and forms online are becoming increasingly popular and can be beneficial as a research tool, especially for less complicated cases. Say if you have instructions that are more straightforward and just want to leave everything to your significant other or children, then an online will kit can be handy. However if you have many assets or a complicated financial situation, and aren’t married or even have step-children, then that’s when an online tool may fall short.
People who are unfamiliar with the technicalities of wills, and prepare one online, can sometimes create ambiguous instructions which are easily misinterpreted. This can not only cause your wishes to be challenged but may invalidate your will. The wording of your will and the terms you use are very important (all that legal jargon isn’t for nothing!), but is something that can be very easily over looked if you’re not careful.

A report commissioned by the State Trustees in Victoria, found that with an ageing population and the rise of dementia, as well as the baby boomer’s growing wealth, it is becoming more common for the transfer of wealth to be mishandled. With around half of Australians not having a valid will it is important to always get professional advice even if it may be cheaper to just do it online only.

It’s especially important to get advice if you are leaving a family member out of a will, have a debt such as a mortgage on a property, have property abroad or have any complex instructions. If you have any questions or would like some advice then feel free to call us on 07 3210 3444.

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Should You Put Your Digital Assets in Your Will?

Peter Carter — Tue, 30 Apr 2019 05:21:22 +0000

When many people think about their will they tend to focus on all the physical assets such as property or money however with the rapid growth of technology, it’s important we start to consider what happens to our digital assets when we die.

Applications like Dropbox and The Cloud have made it easier than ever to store pretty much everything online these days from, photos, music, movies and even money. A digital asset is something that you have a right over that exists online or in another digital technology. It can have either sentimental value or monetary value depending on what the asset may be. Some examples of a digital asset include:

Email account such as Gmail, Hotmail, Yahoo, Outlook
Social Networking accounts like Facebook, Twitter, LinkedIn, Instagram
Blogs
Online banking
ITunes, Spotify, Sound cloud
Online businesses through Etsy, eBay, Amazon, Gumtree

With many people moving away from paper to a more environmentally friendly way to store their important documents, such as bank statements and invoices online, obtaining this information becomes a much more difficult process for executors. That’s why it is important to be specific about your accounts and provide usernames and passwords to access your digital assets. Your wishes should be clear in your will, whether you want to completely wipe accounts or ensure that people close to you have access to them should be documented.

If you need further information or have any questions contact us on 1300 580 413 and we would be happy to have a chat.

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5 Things to Consider When Appointing an Executor

Peter Carter — Mon, 29 Apr 2019 05:55:31 +0000

Appointing an executor is an important decision – so what should you consider?

Do they know and respect your wishes?
Your executor will be responsible for distributing your assets once you die, so it is important they understand your wishes.
Are they honest and trustworthy?
Once appointed, you should provide your executor with the information they need to fulfil their role. This may include; internet passwords, medical and financial information and insurance policies, so it is important that your executor is someone whom you trust. Never someone whose honesty is in doubt.
Are they a good communicator?
Your executor will be required to liaise with a number of people in their role, so it is crucial they are an effective communicator. This will ensure beneficiaries remain informed during proceedings, hence minimising conflict.
Will they remain neutral in their dealings?
It is important your executor is neutral, to avoid conflict between beneficiaries and ensure your will is distributed as you intended. As a disputed will can result in lengthy court proceedings, you may opt to appoint someone who is not a beneficiary or a third party, such as a solicitor or an accountant.
Are they likely to outlive you?
Given that the executor will be dealing with your estate in your absence, it is important they are someone who is likely to outlive you. To ensure your affairs are appropriately managed in the event that your executor dies, it is recommended you appoint a successor to your executor.

If you need further information or have any questions please contact us on 1300 580 413 and we would be happy to have a chat.

For more information, go to: Estate Administration

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