A Loved One’s Died and You Can’t Find Their Will

The Succession Acts 1981 provides for the formalities of a will and Section 18 can provide a relief when those formalities have not been followed but you have the will. What happens when you know there’s a will, but you can’t find it. There is a presumption if a will cannot be found that the Testator has destroyed it as early as 1836 the Courts have said, “The Rule of Law of evidence of this subject has established by a course of decisions in the Ecclesiastical Court, is this: that if a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself and that presumption must have effect, unless there is sufficient evidence to repel it. Courts have accepted whole evidence on the point if a copy has been found, it can be admitted to probate providing the following can be shown:

(a)    That there was a will;

(b)    That the document revoked all previous wills;

(c)     That the presumption that when a will has not been produced it has been destroyed and thus revoked must be overcome;

(d)    The terms of the will;

(e)    The will was duly executed.

If you have a copy of the will, it is a matter of giving evidence as to its execution and the circumstances around the original going missing. For instance, the deceased may have shifted house and documents went missing during the removal. In one case, where a copy of the will was admitted to probate it would have shown that the original will was last in possession of some solicitors and could not be found.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 16 May 18

Problems With Your Body Corporate?

When you are wanting something done in your building, for instance the refurbishment of the foyer and the committee of the Body Corporate does not want to do that, you still have a remedy. Whilst there are a number of ways of calling an Extraordinary General Meeting, from a lot owners point of view, the only way to do it is by a written request signed by at least 25% of lot owners or the representatives.

The notice requesting the Extraordinary General Meeting must be given to the Body Corporate Secretary or in the Secretary’s absence the Chairperson. There is a deeming provision that the Secretary is absent if there is no response within seven days. Either the Secretary or the Chairperson, depending upon who received the request, must call an Extraordinary General Meeting within 14 days and the meeting itself must be held within six weeks of receipt of the notice.

Each lot owner must be given written notice of the Extraordinary General Meeting at least 21 days before the meeting. That notice must include the time and place of the meeting, the agenda, a proxy form and a company nominee form if the owner is a company promoting paper for all motions not to be decided by secret ballot. Information’s to be decided by the secret ballot, a secret voting paper, an envelope marked with secret voting paper and a separate particulars tab or envelope.

To have your particular matter dealt with, you need a suitably worded motion to be put to the meeting, for instance “That the quote by XYZ Pty Ltd dated Wednesday 2nd May 2018 for the refurbishment of the foyer of the building be accepted.” The motion needs a majority of votes to pass but given to call an Extraordinary General Meeting you need 25% of lot owners, one would have thought there would be reasonable prospects of getting the motion through.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 09 May 18

So, You’ve Been Left Out of the Will?

The person who is disappointed because they are not being made a beneficiary under a will or did not receive a sufficient share of the estate under the will, can have a remedy because of Chapter 13 Family Provisions of the Succession Act 1981.

The Court can decide whether or not proper maintenance and support has been left to the disappointed beneficiary under the will. The classes of people who can bring the application are limited by the Succession Act to a spouse, a child or a dependant. A spouse or a child can bring the claim whether or not they were dependent on the deceased, but a dependant must show dependency.

Defactos come within the legislative scheme.

The most used statement for the test of proper maintenance and support come from the Privy Council in Bosch v Perpetual Trustee Co (Ltd) ([1938)] AC 463 at 478. “The act is designed to enforce the moral obligation of the testator to use his testamentary powers for the purpose of making an adequate provision after his death for the support of his wife and children (nowadays that includes defactos and dependants) and in regard to his means, to the means and deserts of the several claimants, and the relative urgency of the various moral claims upon his bounty. The provision which the court may make in default of testamentary on vision, is that which a just and wise father would have thought it his moral duty to make the interest of his widow and children had he has been fully aware of all the relevant circumstances. The amount to be provided is not to be mentioned solely by the need of maintenance. It would be so if the court were concerned merely with the adequacy. But the court has to consider what is proper maintenance, and therefore, property left by the testator has to be taken into consideration. Where, therefore, the estate is a large one, the court will be justified in such a case in making provision to meet contingencies that might have to be disregarded where the estate is small.”

The application of the court must be made within nine months of the date of the death and in Queensland the rights given by the Succession Act 1981 cannot be contracted out of.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 11 April 18

Road Rules

With the Commonwealth Games about to start and an increased police presence, it’s time to brush up on your road rules. A useful summary of the rules is found at www.qld.gov.au/transport/safety/rules/road/left. On the website, keeping left and overtaking is dealt with this way: -

Keeping left

On single-lane roads, you must stay as close as practical to the left side of the road.

On multi-lane roads, if the posted speed limit is 90km/h or more, or if the road has a ‘keep left unless overtaking’ sign, you must not drive in the right-hand lane unless you are:

overtaking
turning right
making a U-turn
avoiding an obstruction
driving in congested traffic
using a special purpose lane that you are allowed to be in.

Drivers are allowed to overtake on the left on all multi-lane roads.

There is a video showing an example.

Importantly, if you are driving on the M1 other than on the left-hand lane and there is no vehicle beside you, if it is safe to do you are obliged to move to the left. Failing to do so, driving in a right-hand lane on a multi-lane road with a signposted speed limit of more than 80km/h attracts a $75.00 fine and two demerit points. Also, failing to drive left after passing a keep left sign attracts $176.00 and three demerit points.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 28 March 18

The Obligation to Pay Child Support

Parties to a marriage or de facto relationship have an obligation to support the children of that relationship. Generally speaking, the amount of child support to be paid is covered by a statutory formula which involves the income of each parent and the time spent with each parent. Child support is a debt to the Commonwealth not to the other party and the child support agency enforces that debt if necessary by litigation.

There are times when the Act does not apply, for instance for a child under the age of 18. If the child is adopted and becomes a child of the marriage of other parties or if the child marries because the obligation is to support ceases to that point. Or if the child leaves home, obtains employment and is able to support his or herself.

The obligation to provide child support as a general rule applies until the child turns 18.

There are however, two exceptions to that rule. One is if the child is in a course of study for instance attending University or Tafe. However, in those circumstances the earning capacity of the child will be taken into account or if the child has a mental or physical disability which impacts on his or her ability to obtain gainful employment.

It should be noted that the Family Law Act allows that the following may apply for a Child Maintenance Order:

1.       Either or both of the child’s parents;

2.       The child;

3.       A grandparent of the child;

4.       Any other person concerned with the care, welfare or development of the child.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 21 March 18