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There is often confusion about what happens to (Queensland) estate assets where a couple has died more or less at the same time. Depending on what the wills say, the position is clarified under Queensland’s Succession Act (“the Act”) quite nicely, though as usual the devil is in the detail. By section 65 of the Act, where it cannot be certain who died second, the younger person is taken to have survived the elder for a day for all purposes affecting the title to property. Those words have been underlined for a reason, as this section is limited to matters affecting the title to property. As a result, if (for example) a home is owned by Sid and Nancy as joint tenants. Sid is 3 months older than Nancy. In Sid’s will, he gives his estate to his father, Johnny. In Nancy’s, she gives her estate to her two brothers, Paul and Steve, provided that they survive her. Sid and Nancy die in circumstances where it is unclear who died first. Sid is taken to have died first, meaning that his interest in the home is transferred to Nancy under the joint tenancy. Then Nancy’s brothers – Paul and Steve – will get the house from Nancy’s estate. Sid’s father (Johnny) misses out. So then what happens if one of Nancy’s brothers dies two days after Nancy? Well that is where section 33B steps in. It provides that if Paul or Steve die within 30 days of Nancy, then they are taken to have died before Nancy. So if Paul died within a month after Nancy, then Steve would get the house from Nancy’s estate. If Paul had died 31 days after Nancy, then his estate would receive half of the house. So these things can have fairly devastating consequences, and thought has to be given to them in estate planning. For estate planning matters, please contact Jessica Murray or Peter Muller at our office on 5574 0111.

In the recent decision of Re Dohle [2022] QSC 4 the Queensland Supreme Court considered the question of sufficient capacity to make a will. It is settled law that in order to have sufficient capacity to make a will, a will maker must: (a) understand the nature of the act of making a will and its consequences; (b) understand the extent of property of which they are disposing; (c) understand the claims that potential beneficiaries might have to their estate; and (d) not be affected by delusion or influence which might affect the reasonable assessment of the distribution of their estate. In Dohle a medical practitioner had given a letter to the effect that the deceased had been incapable of making financial decisions. However a full assessment had not been made, and the lawyer who took instructions for the will (an experienced practitioner) was able to give evidence of the will-maker’s apparent understanding of matters. In that case, the Court found that the will maker had the requisite capacity to make a will. One critical aspect to this was the extent of the lawyer’s interview with the will-maker, and the impression that was obtained as to the knowledge of the will-maker. This would not have been the case if (for example) the instructions had been brief or perhaps it had been a “will kit”. Also it is interesting to note while we are speaking of capacity, that under the Queensland Powers of Attorney Act, a person can only revoke an enduring power of attorney if they have sufficient capacity to make a new one. The making of an enduring power of attorney is not necessarily a simple thing, the forms are very lengthy and there are a number of things to consider. As a result, the effect of the legislation is that a person has to have capacity to make decisions as to quite complex matters, to be permitted to make a decision which would not involve a consideration of very complex matters at all, i.e. whether or not to revoke the grant of the attorney because they have lost faith in the attorney.

On 21 December, 2021 a Queensland Adjudicator made orders restraining an owner of a unit from smoking on her balcony, and regulating her when smoking inside her unit. While previously most complaints concerning smoking in bodies corporate have been considered in the context of the law of nuisance, in this case it was considered in the context of the by laws of the Scheme, and also whether it constituted a “hazard” for the purposes of sec 167 of the BCCMA (the relevant Act regulating bodies corporate). Having regard to a number of factors, including the frequency of the conduct, that harm from second hand smoke is widelay accepted, serious, and that there does not appear to be any “safe level”, the Adjudicator found that the smoke drift was a hazard and breached section 167. The Adjudicator also commented concerning whether – in a situation where the conduct was potentially a breach of by-laws as opposed to only being a breach of section 167 – a body corporate should make enquiries before determining whether to issue a breach notice. So, if you are a smoker and you want to live in a unit, you should consider the restrictions. And if you are an owner annoyed by smoke drift – now might be a good time to do something about it. We should mention that it is possible that this decision – or the principles of it – may be changed on appeal or might not be followed by other adjudicators but it is good to be aware of it.

Significant changes are being made to the REIQ Houses & Residential Land (17th Edition) and Residential Lots in a Community Titles Scheme (13th Edition) Contracts, with the new contracts to be released later in January 2022. The changes are intended in part to deal with problems that have arisen due to financiers being unable to settle on time, allowing contracts to be terminated and deposits forfeited with the sellers going on to sell at a higher price in the rising market. Significant changes include (but are not limited to) the following matters – with comments based on our understanding of changes without seeing the final versions of the contracts : Smoke Alarms From 1 January 2022, all dwellings or residential units offered for sale have to have compliant smoke alarms installed. By the proposed contract, if this is not done by settlement, then the contract will provide for the buyer to be entitled to deduct 0.15% of the purchase price before settlement to cover the cost of installation, provided certain requirements are met. As a result, it will be critical for the buyer to inspect before settlement to ensure that the compliant smoke alarms are installed. Deposit by Direct Debit In Queensland Contracts, time is of the essence of various obligations including the payment of deposit. If a deposit is not received on the day that it is due, then the buyer can be in breach and the seller can terminate and take whatever part of the deposit has been paid. An issue arises however, when a deposit is paid by a direct debit (ie., an electronic transfer) and does not show up in the account of the stakeholder by the due date. The changes proposed provide for a mechanism giving a grace period for the money to show before the breach provisions are triggered if certain provisions are met. Pool Compliance Certificate If there is a pool on the property (including on body corporate common property in the case of a unit sale), then under the changes the seller has to hand over a copy of the Pool Compliance Certificate at settlement. If this is not done, and if the seller has not given a Notice of No Pool Safety Certificate before the contract is entered into, then the buyer may have a right to terminate. Right to Extend Settlement Date It is proposed that either the seller or the buyer can – at any time up until 4.00pm on the settlement date – extend the settlement date by giving a Notice nominating a new date which is no later than 5 business days after it was scheduled. Multiple notices can be given, as long as the total time is no more than 5 days. This is a fairly extraordinary new right in Queensland conveyancing terms and could give rise to significant problems – for example if there were back to back contracts and the second contract did not have a similar right. Furthermore, there could be enormous inconvenience with removalists on standby or tenants intending to move into properties leading to further issues. Warranties concerning building matters Further rights will be given to buyers relating to situations where the local council has raised potential issues with the seller but has not yet issued any formal notice. Unregistered Easements and Services A new right will be given to buyers to terminate if there is, going through the land, infrastructure for the delivery of services (eg., gas, electricity, water or sewerage) that are not disclosed or protected by registered easement. This might be the case if – for example – there is a water line servicing an adjoining property travelling through the subject property. With these changes, there is even more reason to engage a lawyer pre-contract to ensure that these matters are dealt with before the parties are bound..