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Where There’s a Will, There’s a Way: International Wills There are many Australians – or people living in Australia – who have assets or business interests overseas. What may appear to be a relatively simple move from the United Kingdom to Australia, or even a nonchalant purchase of vehicles or real estate in France could very well have longstanding impacts on your estate planning and potential estate administration. To ensure that you have a valid will in place that effectively deals with your international assets, we recommend the creation of either an international will or concurrent wills. International Wills In 2015, Australia became a signatory to the UNIDROIT Convention Providing a Uniform Law on the Form of an International Will 1973 (the Convention). Ultimately, the Convention is a mechanism which provides a standard format whereby participating countries may accept the validity of the will based on its compliance with the formalities set out in the document. The following are signatories to the Convention: Australia, Belgium, Bosnia-Herzegovina, Canada, Croatia, Cyprus, Ecuador, France, Holy See, Iran, Italy, Laos, Libya, Niger, Portugal, Russia, Sierra Leone, Slovenia, United Kingdom and United States of America. Under the Convention, an international will is determined to be valid if it complies with the following (among other administrative matters): The will addresses the wishes of only one person. The will is in writing. The testator declares that this document is their will, and they understand the contents thereof in the presence of two witnesses and a person authorised to deal with international wills (e.g. Australian legal practitioner). The testator signs the will before the witnesses and authorised person attest to the will by signing in the presence of the testator. The authorised person completes a form in the appropriate format certifying that the document was completed in accordance with the Convention. Queensland provides for such documents to be validly made under Part 2 Division 6A of the Succession Act 1981 (Qld). Accordingly, section 33YE of the Succession Act provides for the application of international wills in the Queensland jurisdiction. If you currently own assets in any of the above signatory states, and need to either update or create an international will, please do not hesitate to contact Jessica Murray (07 5574 0623) or Peter Muller (07 5574 0111) of our office. Concurrent Will A concurrent will is used where the testator owns assets in various countries which all govern under different succession laws. Typically, concurrent wills are utilised if the country where the asset is located is not a signatory to the Convention. In this regard, each individual will addresses the legislation of each country and disposes of the assets validly in that jurisdiction. When making a decision as to whether you will draft a concurrent will, it is vital that consideration be given to both tax and trust implications as well as legal requirements. In this regard, it is crucial that your concurrent wills clearly stipulate that the intention of each concurrent will is not to revoke the former one. If you need advice about the relevance of concurrent wills to you, or alternatively if you require the drafting of your concurrent will which addresses your Australian assets, do not hesitate to contact either Peter Muller (07 5574 0111) or Jessica Murray (07 5574 0623) of our office. 

What if I die with no Will? Well, practically speaking, you won’t be around to worry about it, however if you die without a Will it can leave problems for those left behind.  In Queensland, the distribution of estates where there is no Will (called “intestacy”) is dealt with under the Succession Act and depends upon a number of factors, including what kind of assets are in the estate.  Of course, as we have discussed here https://qbmlawyers.demo2.website/estate-lawyers-gold-coast/writing-a-will/, not all of things that people believe are their assets actually form part of their estate.  As an example, superannuation proceeds can be dealt with independently of the estate, as can life insurance proceeds, or property that is held in discretionary or other trusts.  As a consequence, some very wealthy individuals might – strictly speaking – have virtually no estate at all.  Usually however, a person will have at least a bank account in their name, and possibly some property, and there is always the possibility that superannuation proceeds will be paid to their “legal personal representative” who is the executor of their Will or administrator of their estate if they die with no Will or if the appointed executor does not want to act. Which brings us back to the concept of intestacy.  Where there is no Will, certain persons can apply to the Supreme Court for an order that they are appointed as the administrator of the estate.  It is then their role to gather in the estate and distribute it in accordance with the laws of intestacy.  The descending order of the right of persons to apply for letters of administration in intestacy is actually set out in rule 610 of the Uniform Civil Procedure Rules.  The priority is: The surviving spouse; The children; The grandchildren or great grandchildren; The parent or parents; The brothers and sisters; The children of any deceased brothers and sisters; The grandparent or grandparents; Aunts and uncles; First cousins; Anyone else the court may appoint. Of course, it may be appropriate for someone else entirely to be appointed.  The distribution of the estate itself is then dealt with by specific rules in the Succession Act.  Those rules are at sections 35 to 39 of the Succession Act (Queensland) and Schedule 2 of that Act, with some further provisions allowing for the spouse to buy a shared home if there is one. Because of these matters, dealing with estates where a person has died without a Will can be complicated and it can result in unintended consequences.  As a result, it is always advisable to make a Will and to consider every few years at least whether it needs to be updated – see for example https://qbmlawyers.demo2.website/estate-lawyers-gold-coast/should-i-update-my-will/. If you have any questions regarding making Wills or administering estates, please contact our Wills and Estates lawyers, Peter Muller at peterm@qbmlaw.com.au or Jessica Murray at jessicam@qbmlaw.com.au

The forms for both enduring powers of attorney and advance health directives change effective 30 November 2020. Until that date the forms current as at 30 September 2020 should continue to be used. Powers of attorney correctly made before 30 November 2020 will continue to be valid on and after that date. Advanced Health directives which are validly made as at 29 November 2020 will continue to be valid except to the extent of any appointment of a service provider for a residential service in which the appointor is resident. The legislation also provides for other changes, including quite significant changes concerning transactions in which the attorney has a conflict of interests with the principal. These conflicts can arise frequently, and innocently, and thought should be given to those matters when preparing the enduring powers of attorney.

Amendments to the Building Industry Fairness (Security of Payment) Act 2017 (“BIF Act”) came into effect on 1 October 2020. The amendments relate to the making of a payment claim, consequences for not paying the certified amount by the due date, and the introduction of the concept of payment withholding requests if an amount has not been paid pursuant to an adjudication decision. These amendments affect all contractors in the contractual chain in the building and construction industry and are designed to improve the flow of cash throughout the industry. Contractors should ensure that they are aware of the new amendments. The amendments include a significant change to the documentation required when submitting a payment claim – the commencement of the security of payment process.  A contractor who has one or more subcontractors below it, when lodging a payment claim, must include with the payment claim a declaration that all subcontractors have been paid all amounts they are owed.  If a subcontractor has not been paid, the supporting statement will need to specify the amounts that remain unpaid. The second significant amendment concerns the making of payments pursuant to a payment schedule.  A party who fails to make payment pursuant to an amount certified for payment pursuant to a payment schedule, is now exposed to being fined an amount equivalent to 100 penalty units. The third significant change relates to paying adjudicated amounts.  A respondent is now required to pay the adjudicated amount within 5 business days after receiving the adjudicator’s decision.  If a respondent fails to do so, it is now liable to a fine of 200 penalty units. In order to assist claimants to obtain payment pursuant to an adjudicated decision, the new amendments entitle a contractor to serve a “payment withholding request” on a party above it in the contractual chain to secure payment of the adjudicated amount.  Once the principal is served with the notice, it is obliged to retain the amount. Justin Mathews – who is a partner of our firm specialising in building and construction – is now a registered Adjudicator under the Security of Payment legislation both in Queensland and the Northern Territory.  He can assist you in all aspects of adjudication pursuant to the Security of Payment legislation. Please do not hesitate to contact Justin, a Queensland Law Society Accredited Specialist in Commercial Litigation, on (07) 5574 0111 or email justinm@qbmlaw.com.au.