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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.

A number of retailers have moved away from traditional shops to online retailing.  This move has accelerated due to COVID-19 issues, however it has been a trend for a number of years and shows no sign of reversing. We have recently come across this situation where an online retailer intended to take premises in a commercial/industrial centre from which to operate their business.  The entirety of the business would be operated from that premises, but it was not intended for customers to visit those premises as all transacting is done online.  It became necessary to determine whether the premises were a “retail shop”.  Quite apart from anything else, if the lease is for a “retail shop” as defined by the Retail Shop Leases Act (Queensland), then there are a number of safeguards for the tenant including prohibitions upon the recovery of certain costs and outgoings, including land tax. The Retail Shop Leases Act merely provides that a lease is a retail shop lease if it is a lease of a retail shop (section 5A).  The section goes on to identify certain circumstances in which case what would otherwise be a lease of a retail shop is not defined as such. Section 5B of the Act defines a retail shop as premises that are either situated in a retail shopping centre, or used wholly or predominantly for the carrying on of a retail shop business.  In other words, subject to certain exclusions, all premises in a retail shopping centre (which has its own definition) are retail shop leases, but individual premises are also retail shops if there are wholly or predominantly used for carrying on a retail business.  Section 5C of the Act goes on to identify that a retail business is a business prescribed by regulation as a retail business.  The Retail Shop Lease Regulation identifies at section 8 that a business is a retail business if it is a business mentioned in the schedule, or its whole or predominant activity is the sale, hirer or supply of goods or services mentioned in the schedule.  It clarifies that the wholesale sale of goods is not a retail business.  The schedule to the Retail Shop Lease Regulation then identifies a number of activities individually said to be retail businesses.  There are around 200 individual activities identified under general categories of: antique and use goods retailing; bread and cake retailing; clothing retailing; dine in retailing; domestic appliance retailing; domestic hardware and household goods retailing; fabric and other soft goods retailing; floor covering retailing; flower retailing; footwear and footwear repair retailing; fresh meat, fish and poultry retailing; fruit and vegetable retailing; furniture retailing; household appliance installation and repair services – electrical; liquor retailing, for off-premises construction; miscellaneous retailing; music and video hire and retailing (obviously done prior to streaming); newspaper, book, stationary, arts and crafts retailing; pharmaceutical, cosmetic and toiletry retailing; photographic equipment retailing; specialised food retailing; sport and camping equipment retailing; supermarket and grocery stores retailing; takeaway food (ready for immediate consumption) retailing; toy and game retailing; watch and jewellery retailing. There is no requirement in either the Act or the Regulations for the business to be involved in the operation of a “shop” as such – ie there is no requirement that the premises are used for direct contact between the customer and the business at which money is exchhanged for goods or services.  This is different to the definition  in some other states which would suggest that transactions with customers are an element. As a consequence, it is at least arguable that in Queensland, a premises from which a wholly online retail business is operated is a retail shop lease and entitled to the protections and disclosures under the Retail Shop Leases Act. For enquiries relating leasing, including Retail Shop Leases, please contact Kayla Davison at kaylad@qbmlaw.com.au or Peter Muller at peterm@qbmlaw.com.au