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Hot on the heels of the criminalisation of wage theft in Queensland which we mentioned a few months ago, the Federal Government has (in December 2020) introduced a bill to amend the Fair Work Act so as to criminalise wage theft at a Commonwealth level. At the time of posting (17 December) the bill has not passed. The bill requires that the wage theft is dishonest and systematic, and sets out indicia for those terms which makes for an easier assessment than the Queensland legislation which requires a fraudulent act. Interestingly the Commonwealth legislation also clarifies that “an individual involved in the contravention” is liable to be prosecuted, which would include the officers of corporations where they have engaged in the conduct, and potentially other persons even if they are not officers. Maximum penalties are very significant – imprisonment for 4 years and fines exceeding $1M for individuals, fines exceeding $5M for corporations. All the more reason to be careful with wages and entitlement, and also to ensure that if it is a delegated task, it is reviewed externally to make sure it is being done correctly.

Plenty of people try to save some money by making their own will, sometimes through the use of a will kit from a newsagent. I suppose that I am of two minds about this. On the one hand, we lose the fee (usually under $1,000) that we would have made had we been instructed to prepare a perfectly good, enforceable will that can easily be used in administering the estate at a minimum of cost. But then on the other, we stand to gain the fees (usually over $10,000) associated with sorting out the mess of the home made will. Common problems with home made wills (and I am not going to tell you all of them, otherwise why would you need me?) include not having the document signed and witnessed correctly (and this is a bit more complicated than people think), referring to specific assets that are later sold or substituted, not providing alternatives in the event of the death of a beneficiary, partial intestacies, attempting to leave superannuation benefits or trust or company interests in a fashion that cannot be achieved at law, or giving a gift then trying to impose a subsequent condition on it (eg “I give my house to my wife and when she dies to my son”). Another major issue is people not appreciating their own financial affairs, a common issue being loans to or from companies or trusts which can be an asset or liability of the estate. Other problems come with people making alterations to wills after they are signed and witnessed, or leaving paperclip, clamp, or staple marks on the will. Each one of those issues translates to more fees for the lawyer acting in the estate (see, there is a silver lining after all) but then it can have a significant adverse impact on what the will maker really wanted. The take home point is that the lawyers are going to get paid one way or another, it is just that by making the will yourself not only do you risk very unhappy outcomes but it could be that the lawyers will be paid a lot more – and we wouldn’t want that, would we?

There has been consumer protection from unfair contract terms in relation to standard terms contracts for around a decade, and similar protection for small businesses for around 4 years.  The Federal Government has now announced that it intends to make changes to the laws concerning unfair contract terms to beef up their operation in a number of important areas: Instead of simply having the effect that the unfair term is void, courts will be able to impose penalties for breaches of the law; There will be a wider application of the laws to small business, with the ability for some very substantial businesses to have access to remedies; There will be some evidentiary improvements, with guidance for the definition of a standard form contract; The courts will have the ability to be flexible in giving remedies rather than simply declaring the term to be void. While there is no timing set for these changes, it is always prudent to have business standard forms of agreements reviewed to ensure that there are no unfair terms.  Generally speaking, an unfair contract term is one which: Causes a significant imbalance in the parties rights and obligations (usually with the party who prepares the contract having the greater rights); The term is not reasonably necessary to protect the legitimate interests of the party advantaged by it; and It causes financial or other harm (such as delay) if it was relied upon. While there are different drafting styles for business agreements, there is much to be said for agreements that are as brief as is reasonable given the subject matter and are clear and easily understood. For advice in relation to business contracts, please contact Peter Muller at peterm@qbmlaw.com.au or Kayla Davison at kaylad@qbmlaw.com.au

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.