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In this context, it is not so much that the Will itself is being challenged, but rather applicants make application for provision to be made for them out of an estate where they believe that they are entitled to a share, or a bigger share than the Will provides. If successful, the share of some or all of the named beneficiaries would be reduced. Currently, these applications (called Family Provision applications) are made by spouses, children (including stepchildren even if their parent has already passed) or dependants who are disappointed by what is given to them through a Will, or where there is no Will, and they believe that they should have a greater share than what they might receive under the rules of intestacy. The family provision claims are quite undesirable in estate administration because they lead to the estate being put to significant uncertainty, cost and delay. Furthermore, where (say) one of the Will maker’s children is left out, the litigation involved in the family provision claim will generally pit the other children against the claimant, leading to the fracturing of any relationship between them. Family provision claims can also be made by step children, and will sometimes be made by children against the interest of their surviving parent, as an example, by a child where their mother was the named beneficiary in the Will. The proposed changes (relevantly) include requiring the executor of the estate to notice all people who might be eligible to make a family provision application (eg children, step children, or dependants of any kind including potentially mistresses or…errr…misters) that they might be eligible to make a family provision application against the estate, giving a copy of the Will (if there is one) and a current statement of assets and liabilities including a reasonable estimate of the value of each asset and liability. Where this is likely to result in further claims being made is that currently, there is no obligation to give any such notice to the various parties. Provided that no notice of any potential claim is made, then (currently) the executor has a degree of protection if it distributes the estate in accordance with the terms of the Will after certain time periods have elapsed (currently, six months from the date of death is the minimum time period). With notices going out to potential claimants – which many people would be likely to interpret as them having a legitimate right to claim – and including details of the wealth available in the estate, then it would be fair to consider it likely that people such as estranged children or step children might be excited into making claims that they otherwise might not have – in other words, the letter might be taken as an invitation to make a claim that otherwise wouldn’t be made. Anecdotally, insurers complained when personal injury claim numbers increased after lawyers were allowed to advertise, and one might expect that a similar situation arises here, and perhaps more targeted advertising by lawyers for family provision claims. For will makers, this would bring about risks in particular in respect of estranged children or stepchildren, who might not have even known that their parent had passed away until well after the time periods had elapsed, or who might not have been inclined to claim. These proposed changes make estate planning and proper structuring even more important, in particular where there are disputes within the family, or blended families. QBM Lawyers provide comprehensive estate planning and administration services, if you would like to discuss your situation, please contact Peter Muller at peterm@qbmlaw.com.au

If a person is bankrupted, many of their assets are available to the trustee in bankruptcy to be realised and applied for the benefit of the trustee’s fees and creditors.  But does this include amounts in a superannuation fund? The answer is generally no, however as is typical, there are exceptions.  While each matter depends upon its own particular circumstances, generally: For advice in respect of these matters and dealing with superannuation funds generally, please contact Peter Muller at peterm@qbmlaw.com.au

FIRB Update – Fee changes aimed at Australia’s current housing crisis On 10 December 2023, the Federal Government announced that 2024 would see the introduction of new legislation, tripling FIRB application fees for foreign residents purchasing established dwellings and a reduction in FIRB application fees for build-to-rent projects. The changes are aimed at ‘improving housing and affordability and supply” within Australia. Further in a bid to encourage foreign owners of established dwellings to make their properties available for rent if not occupied as a residence, the legislation will see the annual ‘vacancy fee’ doubled to equal that of the application fee paid to purchase the property. It is not clear yet if the changes to FIRB residential land fee rules will apply to developers who purchase land for the purpose of redeveloping it into projects such as new housing, aged care facilities, student accommodation or disability accommodation. It is no surprise that the Government also intends to enhance the ATO compliance regime to ensure foreign investors comply with the rules. Whilst no specifics have been released, it is likely that such changes will see an increase in infringement notices being issued and court applications by the Government for criminal and civil penalties.   The introduction of new legislation will not affect fees for the purchase of new dwellings and vacant residential land.  For advice on FIRB requirements and how the above changes may affect you, please contact Jessica Murray at jessicam@qbmlaw.com.au or Megan Saroff at meganh@qbmlaw.com.au.

What happens if your Enduring Power of Attorney loses capacity? An Enduring Power of Attorney (EPOA) is a legal document that allows someone (the principal) to appoint another person (the attorney) to make decisions on their behalf, particularly in financial and legal matters, even if the principal loses mental capacity. However, if the appointed attorney also loses capacity, there are typically provisions in the EPOA or relevant laws that address this situation. The specific procedures and consequences can vary depending on the jurisdiction and the language used in the EPOA document, so it’s important to consult local laws or seek legal advice for precise information. In many cases, there may be alternative attorneys named in the document, and they may step in if the primary attorney becomes incapacitated. If there are no alternate attorneys designated, the court may need to get involved in appointing a replacement attorney or take other appropriate actions. Specifically in Queensland, section 22 of the Powers of Attorney Act 1998 provides that if an attorney becomes a person who has impaired capacity, the power of attorney is revoked to the extent it gives power to the attorney. It’s crucial to carefully draft an Enduring Power of Attorney with the assistance of legal professionals to ensure that potential scenarios, including the incapacity of the attorney, are adequately addressed in the document. Additionally, regular reviews and updates of the document may be necessary to reflect any changes in circumstances or preferences. For advice in relation to powers of attorney, contact Jessica Murray at jessicam@qbmlaw.com.au