NOVEMBER 2017 LEGAL UPDATE: 457 VISA CHANGES
This month, we’re looking at the recent 457 visa changes and what they could mean for you.
Check out our latest Legal Update on our YouTube channel here:
OCTOBER 2017 LEGAL UPDATE: CAN A TEXT MESSAGE BE AS GOOD AS A WILL?
Tayla Gorman and Alexandria Tu
Last month, the Supreme Court of Queensland handed down a novel decision on the matter of wills, ruling that an unsent text message can be an effective will. This decision is notable as it stands in contrast to the formal requirements for a valid and enforceable will in Queensland under s 18 of the Succession Act 1981 (Qld).
1. WHAT ARE THE GENERAL REQUIREMENTS FOR A VALID WILL?
Generally, for a will to be valid and enforceable in Queensland, it must be in writing and signed by the testator in front of two witnesses, both of whom must be over the ages of 18 and must not be beneficiaries under the will.
2. “INFORMAL WILLS”
However, under s 18 of the Succession Act 1981 (Qld), an informal document can be held to be valid in very limited circumstances where:
- the document purports to state the testamentary intentions of the deceased person (s 18(1)(a) of the Act); and
- the court is satisfied that the author intended the document to form their will, or a part of their will (s18(2) of the Act).
Under s 18(3), in determining whether the court is satisfied that the author intended the document to form their will, the court may have regard to:
- any evidence relating to the way in which the document was executed; and
- any evidence of the person’s testamentary intentions, including evidence of statements by the person.
3. RECENT DEVELOPMENTS
In the recent case of Re Nichol; Nichol v Nichol  QSC 220, the Supreme Court of Queensland considered the issue of whether an unsent text message by a deceased shortly before his death could be considered a valid will. The facts of the case were as follows:
- Mark Nichol (the deceased) drafted a text message to his brother, David Nichol, which purported to leave all his assets to his brother and nephew.
- The text message also specified that his marriage had recently ended, and his ex-wife was to only take her own belongings as the deceased did not wish for any of his assets to be left to her. The deceased passed away shortly after composing the text message but did not actually send the text message.
- The unusual circumstances in this case led to two competing applications in the late Mr Nichol’s estate.
- The deceased’s ex-wife applied to the court for a grant of letters of administration on intestacy, arguing that Mr Nichol had passed away without a valid will and therefore the intestacy rules in Schedule 2 of the Succession Act should apply. By contrast, Mr Nichol’s brother and nephew applied to the court for a grant of probate, arguing that Mr Nichol’s unsent text message clearly expressed his testamentary wishes.
- In the circumstances, the Court held that the text message was a valid will.
Justice Brown delivered the judgment for the case, stating that she was satisfied that Mr Nichol had testamentary capacity at the time of composing the text message and that the deceased did intend the text message to form his will.
Her Honour considered the following factors in her judgment:
- The fact that the text message was created on or about the time that the deceased was contemplating death such that he even indicated where he wanted his ashes to be placed;
- That the deceased’s mobile phone was with him in the shed where he died;
- That the deceased addressed how he wished to dispose of his assets and expressly provided that he did not wish to leave the applicant (his ex-wife) anything;
- The level of detail in the message including the direction as to where there was cash to be found, that there was money in the bank and his bank card PIN, as well as the deceased’s initials with his date of birth and ending the document with the words “my will”; and
- He had not expressed any contrary wishes or intentions in relation to his estate and his disposition from that contained in the text message.
Justice Brown stated that “the surrounding circumstances also support the terms of the text as representing his testamentary intentions and that he intended it to be operative as his will, without more on his part”.
4. WHAT CAN WE TAKE AWAY FROM THIS CASE?
The validity of the creation of an informal document is highly dependent on its surrounding circumstances, therefore a case by case approach is taken by the courts. For example, in a similar case in 2011, an electronic document saved on the deceased’s computer was not held to be a valid will because the court was not satisfied that the deceased had intended the document to be a will.
In many cases, it may be difficult to satisfy the court that the deceased intended their informal document to form their will, which can result in costly litigation. All in all, this case confirms that the best way to protect your assets and ensure that your wishes are carried out is to make a formal will.
SEPTEMBER 2017 LEGAL UPDATE: ELDER LAW
1. TAIWAN CARE PRESENTATION
On the 28th September 2017, Goodman Lawyers had the pleasure of delivering a presentation to Taiwan Care at the Acacia Ridge Communities and Districts Community Centre. Three different topics were explained and discussed in the presentation, slides of which are available below:
2. POWERS OF ATTORNEY AND ADVANCE HEALTH DIRECTIVES
We always recommend to our clients as part of their Estate planning that they think about not only what will go in their Will, but also who they want to make decisions for them if they become unable to do so. This is the purpose of a Power of Attorney – to appoint a person you trust to make financial or medical decisions for you if you lose capacity to do so. The Advance Health Directive also allows you to express specific health care instructions.
This is a tricky area of law, as the people most affected by it are those who are vulnerable and have lost capacity to make their own decisions. The State Government is currently reviewing the law around Powers of Attorney and Advance Health directives, and on 5 September 2017, introduced new laws into Parliament to protect the elderly in Queensland.
Proposed changes under the new law:
- If a person has acted as your paid carer within the last 3 years, they cannot be your Attorney
- You need to have capacity to execute an Advance Health Directive or Enduring Power of Attorney. This requires that you are capable of executing the document freely and must understand the nature and effect of the document. All adults are presumed to have capacity unless proven otherwise.
- If you lose capacity to execute an Advance Health Directive or Enduring Power of Attorney, QCAT will be able to appoint a Guardian or Administrator to make these decisions for you. However, QCAT must seek the wishes and preferences of the adult and their support network when making a decision in these matters.
- QCAT will also have the power to appoint an Administrator for missing persons.
3. RETIREMENT VILLAGES AND THE AGED CARE SYSTEM
The Australian Government is currently conducting major reforms of the Aged Care system to improve service availability, reduce red tape, increase consumer choice, and ensure consistent quality of services.
Key changes since the beginning of the reform have included:
- Introduction of the My Aged Care website
- More options for Government subsidies available to care recipients
- Government funding for home care is now assigned directly to the care recipient (instead of the provider)
- Care recipients can now change between providers more easily (without affecting their subsidy)
The Queensland Government has also introduced major proposed amendments to the Retirement Villages Act into Parliament on 10 August 2017. If passed, the amendments will:
- Insert a new Section 84 requiring a 21 day pre-contractual disclosure period
- Also by the new Section 84, increase the amount of information required to be provided to prospective residents by Retirement Village operators before the Contract is signed – i.e. Residence Contract, Village Comparison Document, Prospective Costs Document, By-Laws for the Village.
- Introduce a new Section 63 imposing a statutory cap on the payment of residents exit entitlements. Previously, village operators only had to make payment to residents “on the day that it must be paid under (their) residence contract”. Now, village operators will be required to make payment within 18 months after the exit.
New changes to the Succession Act 1981 (Qld) came into effect on 5 June 2017. Some of the key changes are:
- Under s 15 of the Succession Act 1981 (Qld), if a person’s marriage ends after they make their Will, any disposition to their former spouse in the Will is automatically revoked.
- The new Section 15B of the Succession Act 1981 (Qld) now impacts de facto relationships – i.e. if a person’s de facto relationship ends after they make their Will, any disposition to their former de facto partner in the Will is automatically revoked.
- The new Section 40A of the Succession Act 1981 (Qld) also limits the entitlements of step-children to family provision.
- Under the old Act, step-children of a marriage were entitled to family provision, even if the marriage was ended before the time of death. Since the changes to the Act, family provision is now only available for step-children of a marriage at the time of death (i.e. if the parents are divorced, the step-children are not entitled to family provision).