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In administering an estate, it is necessary to have the original of the last Will.  This is for a number of reasons, one of which is that there is a presumption that if an original Will cannot be found, then the Will maker destroyed it so as to revoke it. If there is no last Will because it has been revoked, and if that Will (before being revoked) revoked previous Wills, then the Will maker will have died in testate and the Will maker’s estate will be given in accordance with the rules of intestacy.  Occasionally however, circumstances arise where a Will might be lost or destroyed without the intention of it having been revoked.  For example, the Will might be destroyed in a fire or flood, or it might have been lost.  Situations in which photocopies of Wills that had been lost have been admitted to probate have been considered by the Supreme Court.  The NSW Supreme Court, in Cahill v Rhodes [2002] NSW SC 561 found that in order to admit the record of a lost Will to probate, five matters must be established: That test has been approved by the Queensland Supreme Court and relied upon in various matters including in circumstances where it appeared that the original Will had been lost by a hospital, and in circumstances where it appeared that the Will had been stolen from the lawyer’s car. For matters concerning estate planning, Wills, probate and estate litigation, please contact Jessica Murray at jessicam@qbmlaw.com.au or Peter Muller at peterm@qbmlaw.com.au

Yet another person trying to use a will kit to create a will and getting it wrong. There tends to be at least several of these each year in Queensland alone, although that doesn’t seem to cool the passion that some people have for their beloved will kits. This one however was a little different. It seems that the will maker had signed the document, but had not completed important parts of the will before signing it. In particular the parts of the will saying what was to be done with the estate were completed after it had been signed. So ultimately the will had no effect and orders were made to administer the estate as though the will maker had died without a will. The decision can be found here https://www.sclqld.org.au/caselaw/QSC/2022/303 Problems with will kits are frequent. Gifts can fail for various reasons, there can be partial intestacies (where part of the estate isnt dealt with properly, there can be issues with signing, sometimes the will fails entirely. When these problems arise, often court intervention is required costing thousands of dollars in legal fees, with delays associated with the administration. For example, in the matter referred to in the decision, the will maker died in mid 2020, the application was brought in May 2022 and even though uncontested, the orders were not made until January 2023. As a result an estate which most likely could have been administered within 6 months is incomplete after 2 1/2 years. It is prudent to use a lawyer who understands the fundamentals of preparing wills, and who takes the time to understand the will maker’s assets and family relationships – after all personal dealings are complex and there is a lot to consider – see https://qbmlawyers.demo2.website/estate-lawyers-gold-coast/writing-a-will/

The Queensland Supreme Court recently considered a number of issues concerning the use of a statutory demand in pursuing amounts owed to a builder under a building contract. A statutory demand is a process where a creditor issues a demand to the debtor company, requiring payment within 21 days or an application to be filed in the Supreme court to set it aside within that period (setting out all grounds relied on), failing which the debtor company is deemed insolvent and might be wound up. In this case, a builder had commenced an action against a developer for money and damages under its contract. It also had issued a payment claim under the BIFSA for money under the contract, and issued a statutory demand for payment. These matters considered included : (a) whether the application relied on a ground which was additional to the grounds set out in the initial application – see paras 6 – 9; (b) whether there was a genuine dispute as to the debt – paras 36 – 37; (c) whether the failure to lodge a payment schedule to the builders payment claim had the result that the debt could not be disputed – paras 44 – 51; and (d) whether the statutory demand process was an abuse of process given that a claim had already issued for the debt – paras 55 – 58. The decision is interesting and worth ready for its detailed backgrounding of the way in which courts approach these questions https://archive.sclqld.org.au/qjudgment/2022/QSC22-274.pdf Perhaps the most interesting part of the judgment for building matters is the consideration of whether the failure to lodge a payment schedule and dispute a payment claim through the BIFSA processes has the result that a genuine dispute could not be raised in the application to set aside the statutory demand. While His Honour found it unnecessary to decide, he indicated his agreement with decisions to the effect that the only dispute that could be raised in those circumstances would be as to whether the developer was obliged to dispute the payment claim through the BIFSA processes, and that if those processes applied and were not followed, then the existence of the debt is conclusive. For advice in relation to statutory demands and building disputes, please contact Justin Mathews at justinm@qbmlawyers.com.au. Justin has specialist accreditation in commercial litigation, and is a registered adjudicator.

The recent Queensland District Court decision of Pro Wealth Corporation Pty Ltd v Property Investment Advisory Pty Ltd [2022] QDC 257 contains an interesting discussion of the various ways in which an employer can seek competition for a former employee using their materials or breaching the restraint.  The employer in this case characterised claims against their former employees (and in the case of one, his wife) in a number of different ways – The claim was made both under the employment agreement itself (which contained obligations in respect of confidential information and restraints) and equitable obligations of confidence.  Claims for breach of statutory duty under the Corporations Act were not pursued as they cannot be conducted through the District Court. Employers often claim that employees owe to them fiduciary duties (ie duties of good faith).  Employees will owe fiduciary duties in some circumstances, but more often their obligations are the lesser obligations of fidelity and loyalty.  In this case, it was found that the employees had obligations to keep information confidential, and that obligation continued after the ending of their employment.  It was also found that the restraints against competition were effective.  His Honour found that the Defendants had breached their obligations of confidence and had breached restraints, and further, that the former employees had engaged in misleading conduct.  The decision contains a useful discussion of the rights of employers against former employees and can be found here https://www.sclqld.org.au/caselaw/QDC/2022/257 For advice on employment issues, contact Peter Muller peterm@qbmlaw.com.au or Justin Mathews justinm@qbmlaw.com.au