Blog

Take it from the horse’s mouth https://www.qld.gov.au/health/conditions/health-alerts/coronavirus-covid-19/current-status/public-health-directions/restrictions-impacted-areas

QBM Lawyers continues to operate while observing the restrictions of the current lockdown. We have taken steps to ensure that there is as little impact as possibly upon the delivery of our services. If you are tired of the mixed messages about what is and is not permitted, take it from the horse’s mouth https://www.qld.gov.au/health/conditions/health-alerts/coronavirus-covid-19/current-status/public-health-directions/restrictions-impacted-areas Our best wishes to all affected.

* the comments in this article are specific to Queensland  From time to time, we are asked whether various extended family members can make a claim on a person’s estate.  This might be particularly the case where there is a large estate and no close living relatives.  In those cases, siblings (brothers and sisters) or grandchildren might wish to see whether they have an entitlement.  If the person has died without a Will, and has no spouse or children surviving them: If they had one or more grandchild, then the grandchildren will receive the share that their parent would have received had he or she survived; If there are no grandchildren but the deceased is survived by one or more parents, then the surviving parent or parents are entitled to the estate; If there are no parents, then brothers and sisters are entitled to the estate, and if any died before the deceased but had children, their children (ie the nephews and nieces of the deceased) are entitled; There are further entitlements of more remove next of kin (eg grandparents, uncles and aunts) under section 37 of the Succession Act 1981. So that was the case where the person has died without a Will, but what about if the person died with a Will and left their estate (say) to friends or to a charity? In that case, and assuming that the person had proper mental capacity to make the Will (or the person died without a Will and the claimant is not entitled under the order of distribution above), the claim will generally be made under the “family provision” sections of the Succession Act.  This is addressed elsewhere on this site. Relevantly however, the only people who can make a claim under these provisions are: A spouse; A child; or A dependant. Section 40 defines “Child” as including a child, step child or adopted child of the person.  It goes on to define “Dependant” as meaning a person who “was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by the deceased person at the time of the person’s death being: A parent of that deceased person; or The parent of a surviving child under the age of 18 years of that deceased person; or A person under the age of 18 years” So as you will see, the range of eligible claimants is quite restricted, being restricted to spouses, children, and people who are being maintained or supported by the deceased person.  It is possible that family members such as grandchildren might fall within a class of “dependant” however there would need to be a sufficient degree of maintenance and support before that could occur.  That is similarly the case for brothers and sisters or any other extended family member.  For advice on Wills and Estates, please contact Peter Muller at peterm@qbmlaw.com.au or Jessica Murray at jessicam@qbmlaw.com.au

In a strong property market often we hear stories from clients where they have bought “off the plan” having been told that – given the rising market – they should expect substantial increases in value before the contract is due to settle. Perhaps the strong gains over the past year have been pointed out, and the clients have been told that if they sign a contract today at (say) $1M, then by the time the building is complete in two years the unit should be worth at least 10% more, so in effect they are getting a $1.1M unit for $1M. We have had matters where that sort of thought process has led to clients buying units off the plan, thinking that they will be able to almost 100% finance the purchase price, by the time that settlement comes around. Unfortunately – while there have been strong increases in value for many Gold Coast properties – this sort of rising market does not tend to last forever and high rise units in particular are prone to substantial fluctuations in value. This can translate to banks being more conservative with lending on the product. Further, a challenge arises in “off the plan” contracts because the “subject to finance” condition will usually have to be satisfied within three to four weeks of the contract date when settlement might not occur for over two years. The approvals lapse, and when the time to settle comes around the lending policies might have changed, the market might have fallen (ahem….”corrected”) leading to lower valuation, the buyer might have lost his job or had some other misfortune, any of which could lead to finance being declined. What next? Well generally trouble, as the contract is no longer subject to finance. If settlement does not occur and unless there is a basis to terminate the contract, then the buyer is in breach. It could lose the deposit, have to pay interest on the purchase price, and be responsible for losses. As an example, in 2007 some buyers agreed to buy a unit in Oracle Tower 1 for $1.01M. They paid a $101K deposit. They did not settle when the building was finished in 2010. Damages in favour of the seller were assessed at $428,483.50 on top of the deposit of $101,000 which was lost. So all up, and excluding the seller’s legal costs, the buyers were obliged to pay almost $530,000 – over half of the price of the unit that they did not buy. South Sky Investments Pty Ltd v. Luppi [2012] QSC 27 Caution should be exercised in entering contracts and making long term commitments, unless there is certainty that external events will not turn it into a disaster.