Family law is an area which touches many individuals and families. Many of us know someone who has separated or may have difficulties navigating with their former spouse on property and children matters. Often, we hear of bits of advice on family law from friends and family members. Sometimes, the information is confusing and overwhelming.
In this article, we tackle some of the common misconceptions in family law so that there is clarity on these issues.
1. Misconception – We need to divide our finances 50/50 when we separate
A 50/50 split is not automatically the case! As lawyers, we often hear this when we first meet our clients. The law does not automatically say that a couple’s property and finances are to be divided equally. There are many factors that need to be considered such as financial and other contributions made by each party to the acquisition of the parties’ assets, the care of the household and the children, the length of the relationship, health issues or needs of each party, the future earning capacity of each party and the needs of children under the age of 18 years old. All these factors impact on the final overall percentage in the division of the parties’ assets.
2. Misconception – Children need to live in an equal shared, or 50/50 care arrangement
This is another misconception we hear all the time! A 50/50 care arrangement for the children is not automatic when parties separate. In children’s matters, the focus is not on the parents but on the best interests of the child. There are two matters to consider:-
Parental Responsibility
Whether both parents or only one parent should make decisions regarding major issues affecting their child such as schooling, health and religious upbringing; and
Live with and spend time
Whether the child is to live with one, or both parents and if so, the arrangements for this to occur and how much time the child is to spend with each parent.
Over the years, Robertson Hayles Lawyers has encountered many complex deceased estates. This involved tracing of the rightful beneficiaries of the estate in multiple jurisdictions and taking appropriate court action to deal with the estate in a timely and cost-efficient manner.
This involvement has been satisfying as we have assisted many beneficiaries from Australia and overseas in complex deceased estates to reach a resolution after years of the estate being in limbo.
Recently, Robertson Hayles Lawyers had the privilege to resolve a historical deceased estate where the deceased died nearly a century ago. In this case, the original executors of the deceased’s last will had obtained probate and distributed the deceased’s estate to his wife and children in the 1920s. However, the original executors overlooked a sliver of land which the deceased owned in Perth. The deceased’s ownership of the land remained unnoticed for nearly 100 years to around 2018 when a developer requiring an adjoining land for development discovered that this land belonged to a deceased who passed away in 1922. The developer managed to contact a descendant of the deceased. We were then instructed to act for the estate. This required us to trace the descendants of the deceased over a 100-year period to determine the descendants with legal standing to apply for probate and the rightful beneficiaries and their respective share of the estate. Hours were spent on researching records at the birth, deaths and marriage registry, court probate records, electoral roll records, historical records held by the State Records Office, family trees on various websites and interviewing the living descendants of the deceased. Finally, 24 descendants of the deceased were identified as beneficiaries of the estate. It was satisfying to resolve the estate and distribute the balance of the estate to the deceased’s rightful beneficiaries.
From time to time, families, local councils, property owners or developers, accountants and financial advisors may need assistance to deal with an unresolved historical deceased estate when land or other assets held by the deceased come to light. Often these assets must be dealt with quickly. For example, land required for development or when the assets have to be sold to preserve its value.
When children are not returned to a parent after the Christmas holidays or on any other occasion, it usually results in frantic phone calls and text messages to the other parent to locate the children and to find out what is happening. Prolonged separation from one parent may be traumatic for the children. If you are a parent who has to face this situation, it brings on anxiety about the children’s well-being and fear that you may not see them again. If this occurs, what are your rights as a parent and what steps should you take?
In some cases, the children’s location is known, and the other parent simply refuses to return the children. In a more extreme situation, one parent has abducted the children or is in hiding with the children and the children’s whereabouts are unknown.
The first thing to do would be to immediately try and locate the whereabouts of your children and to contact your spouse to negotiate for their return. At the same time, try and negotiate with your spouse for a video or telephone call with the children. However, if there is risk to you or the child’s safety in approaching the parent or person who is holding the child, you should seek urgent legal advice before contacting the party who is keeping the child or children.
If you are separating from your spouse, you may experience significant financial impact. Instead of two parties sharing the same household costs, you and your spouse will now have to pay for separate accommodation and will have to fund separate households. Two households will mean more expenses for you.
Besides funds for the additional household costs, you may need the services of a lawyer to represent you to secure a fair share of the assets in the property division or to obtain court orders protecting your child’s interest in parenting disputes.
How can you then minimise your legal costs?
Be calm
Being calm and making rational decisions are easier said than done as it is only normal to be affected emotionally when a dispute arises with the person you have shared your life with. When dealing with separation, it is time to take a deep breath, attend counselling if required for support, and attempt to discuss the property split and children related matters in a calm manner with your former spouse. Rather than jumping straight into the family court, consider alternative dispute resolution as a means to resolve the dispute. This includes seeking the assistance of a mediator to act as an independent third party between you and your spouse. A skilled mediator can help parties focus on the issues at hand to reach a resolution. If you and your spouse can communicate and work through the issues impacting on the separation, you will be able to enter into consent court orders to record the terms of the property split and the parenting arrangements. This will save you loads of money in legal costs in having the dispute litigated in the family court. It is however important to seek legal advice before you enter into negotiations with your former spouse so that you understand your rights and entitlements under the family law.
Isaac Stern, an American was one of the world’s greatest violinists of the 20th century. When Stern died aged 81 years in 2001, the executor appointed under his Will auctioned off his legacy intended for his children including autographed photographs, violins and his music collection allegedly to pay off estate debts. Stern’s children sued the executor alleging that the executor had wrongly excluded their father’s apartment from the estate and paid himself thousands of dollars leaving the estate unable to pay off the musician’s debts. The Probate Court in the USA found that the selling of Stern’s legacy caused his children to suffer “incalculable personal loss”. The Court also ruled that the executor had to pay back to the estate $313,000 which the executor had paid to himself stating that this payment from the estate was “outrageous, improper and unjustified”.
The example of the estate of Isaac Stern above highlights the importance of the proper management of a deceased estate. Serious financial and emotional ramifications may be caused to the family members of the deceased if the estate is not managed properly and in accordance with the law. This may result in the executor or administrator of the estate facing personal liability.
The Law
A person may pass away with a Will or without a Will.
When a person dies with a Will, the “executor” is the person appointed under the Will to administer the estate. The executor applies to the Court for a “grant of probate”. When the grant is issued, the executor has the authority to deal with the estate of the deceased.
At Robertson Hayles Lawyers, we frequently act for international clients with commercial operations in Western Australia.
As a reality of doing business, international firms must inevitably hire, fire, and manage their staff, and are often faced with the unenviable task of navigating employment laws across multiple jurisdictions throughout Asia and globally.
Generally, employment laws in Western Australia are vastly different from elsewhere in Asia and other parts of the world – getting things wrong could result in claims being filed in the courts and/or reputational damage to an international brand.
Some common Western Australian employment laws which are often overlooked by international clients are as follows:
Redundancy and Consultation.
The Fair Work Act 2009 prescribes that an employer must take certain steps before making an employee redundant. While a genuine need to restructure the business will be required, in most cases, employers must take the extra step of consulting with an employee before any decision is made. The consultation must not be perfunctory in nature and must offer the employee a genuine chance to influence the decision.
Presumption of “Equal Shared Parental Responsibility” Removed: Child’s Best Interest is Paramount
The Family Law Amendment Bill 2023 is a significant change in family law, particularly in relation to child custody and parenting arrangements. If you have a child custody dispute, you will need to understand these changes as they may impact the outcome of your matter in court. It may also impact the terms you may wish to propose in negotiations with the other party on parenting arrangements.
These changes come about following an Australian Law Reform Commission report in 2019.
On 19 October 2023, the Australian federal parliament passed two pieces of legislation to amend the Family Law Act 1975 (‘FLA’). Some of the changes include:
Removing the presumption of “equal shared parental responsibility.” Previously, with this presumption in place, it meant that in negotiations and court hearings, the starting point was a presumption that each parent had an equal right to make major decisions about their children, such as schooling, medical, and religious issues. Following on with this presumption, under the previous legislation, the Family Court must then consider whether it is in the child’s best interests for the child to spend equal time or substantial and significant time with each parent. The Australian Law Reform Commission found that with this presumption in place, many parents misinterpreted it to mean that both parents should have an equal amount of time with the child. This presumption is now abolished. The starting point is no longer the parent’s right to equal parental responsibility. The focus is now clear: the one or only factor that prevails is the child’s best interest.
What factors the court is required to consider in determining the child’s best interests has been reduced from 15 factors under the previous legislation to 7 under the amendments legislated. The aim is to simply matter and put the focus on a child’s best interest. The seven factors include a child’s safety, their views, the benefit of having relationships with both parents, and the child’s developmental, psychological, emotional, and cultural needs.
If the Family Court makes an order for the parents to have joint decision-making responsibility on a matter affecting the child, for example, schooling or medical issues, a new provision has been legislated where the parties are now required to consult with each other and make a genuine effort to come to a joint decision on such matters (only if it is safe to do so). In cases where there is family violence, this may not apply.
The amendments also provide that when a child is spending time with one parent, that parent is not required to consult with the other parent on matters that are not major long-term issues.
There is a requirement for the Independent Children’s Lawyers (ICL) to meet with the child in certain circumstances.
Putting the principles of Rice v Asplund (1979) FLC 90 in legislation This case relates to when the Family Court can reopen a matter after final parenting orders have been made. Decided in 1979, this case stated that if any party wishes to vary or set aside a final parenting order, that party must show that there has been a “significant change in circumstances”. This principle is now captured by the amendments to the Family Law Act. Therefore, it is now legislated that to change a final parenting order, the party seeking the change must show that there has been a significant change in the circumstances relating to the child and that it would be in the best interest of the child for the final parenting order to be changed.
If you have any questions about your family law matter, please contact our principal family lawyer and Associate Director, Alexandra Naoum at enquiries@robertsonhayles.com or at our contact number, +61 (8) 9325 1700.
Note
The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive, nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting on or relying on any of the above content.
Is a document typed out on a mobile phone a will? The validity of unsigned wills.
A last Will typed out by the deceased in the notes section of an iPhone was recognised by the Queensland Supreme Court as a valid Will. Here, the deceased sadly took his own life. Shortly before he died, he created a series of documents on his iPhone, most of them final farewells. One was expressed to be his last Will. The Supreme Court found that the document in the iPhone embodied the testamentary intentions of the deceased and was made in contemplation of the deceased’s imminent death. In the circumstances, the Supreme Court was satisfied that the deceased intended the document created on his iPhone to form his Will.
In another case, where the deceased also committed suicide, the New South Wales Supreme Court held that a Microsoft Word document labelled “Will.doc” completed by the deceased and found in his laptop after his death formed the last will of the deceased and was admitted to probate.
The above two cases highlight the importance of giving due consideration to documents left behind by a deceased that may not conform to the traditional format of a Will, namely a document that is printed or in handwriting and which is signed by the deceased before 2 witnesses. Under Part 1X of the Wills Act (WA) 1970, the Court has the power to dispense with the formal requirements for a Will and instead recognise a document made by the deceased as a valid Will.
The Law on Informal Wills
Under section 32 of the Wills Act (WA) 1970, an informal Will is recognised as a valid Will if the following criteria are met:-
there is a “document”;
which purports to embody the testamentary intentions of a deceased person even though it has not been executed in the manner required under the act; and
the Court is satisfied that the person intended the document to constitute the person’s will.
In the Wills Act (WA) 1970, a “document” is defined as “any record of information” including —
anything on which there is writing; or
anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
a map, plan, drawing or photograph.
The wide definition of a “document” means that all manner of information which records the deceased’s testamentary intentions including handwritten notes, typewritten documents, video recordings, photographs, drawings and documents created on a phone, tablet, laptop or desktop are relevant in considering whether the deceased left behind an operative will.
Having regard to the wide definition of a document, does this mean that any document left behind by the deceased would constitute a valid will? How about drafts which a deceased may have prepared on his or her computer? What about handwritten notes detailing the distribution of assets in the event of death? Such documents may have been “dry runs”, preparatory notes or mere thoughts which the deceased may have made before finalising his or her testamentary intentions.
Under section 32 of the Wills Act (WA) 1970, the focus in proving an informal Will is whether the document embodies the testamentary intentions of the deceased, namely the distribution of the deceased’s assets upon death and whether the deceased intended the document to constitute his or her last Will. In forming its view, the Court may have regard to the document itself and to any evidence relating to the manner of execution or testamentary intentions of the person, including statements made by the person.
A document which embodies the deceased’s testamentary intentions is by itself not sufficient. There must be evidence which satisfies the Court that either at the time the document was brought into being or at some later time, the deceased, by some act or words, demonstrated that it was his or her intention that the document should operate as his or her will.
If you are the executor named in the last will or an intended administrator of an intestate estate or simply a family member of a recently deceased person, it is imperative that you preserve the personal papers and effects of the deceased. A document may be found among the deceased’s personal papers and effects which contains the deceased’s testamentary intentions or the alteration or revocation of an existing will or the revival of a previously revoked will. In today’s technological world, this will include all electronic devices capable of creating and storing information such mobile phones, tablets, laptops, desktop computers and video recording devices.
Notwithstanding that the Court has power to admit an informal will to probate, the most prudent path is to make a formal will. An informal Will leads to great uncertainty as the Court may not be satisfied that the deceased intended the document to constitute the deceased‘s last Will. Besides the uncertainty, proving an informal may be a costly and emotional affair for the beneficiaries.
Over the years, Robertson Hayles Lawyers has had to assist beneficiaries to seek the admission of unsigned documents to probate, sometimes in sad circumstances where a deceased left a message on the distribution of assets before committing suicide.
If you require advice in relation to informal wills created by a deceased, please contact Robertson Hayles Lawyers at 9325 1700 or by email at enquries@robertsonhayles.com
Note
The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive, nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.
In property settlement disputes between separating couples, a major concern is the complexity of court proceedings and the amount of legal costs they will be paying to work through the process in the Family Court. These concerns are intensified when there is only a small asset pool in dispute.
There is now some relief for separating couples with only a small asset pool for property division. The Family Court of Western Australia is instituting a new pathway from 1 October 2023 called “Priority Property Pool under $500,000” or “PPP500” in short, where there is now a quicker and more cost-effective pathway to resolve property settlement disputes for couples with a net asset pool under $500,000 (excluding superannuation). This is for both married and de facto couples going through a family law property settlement matter.
The aim of the PPP500 pathway is to achieve a just, efficient and timely resolution where the costs to the parties is reasonable and proportionate in the circumstances of their case.
Benefits of the PPP500 pathway
A case that falls under the “PPP500” pathway will have the following benefits: –
Simplified court documentation to be prepared and filed by the separating couple.
Simpler court procedures for the parties: –
To obtain procedural orders such as the exchange financial disclosure, valuation of assets and other procedural orders, within days of filing the court application.
To attend a Conciliation Conference before a Registrar of the Family Court where the Registrar will assist the parties to attempt a resolution of the dispute by agreement. (A Conciliation Conference is a form of a court led mediation which provides the parties with the opportunity to make a genuine effort to settle their dispute by agreement.)
To proceed to trial before a Magistrate of the Family Court where the Magistrate will determine the outcome of the dispute between the parties if no resolution by agreement can be reached. (A trial is the final hearing of the dispute before a judge where parties produce evidence of their case with the judge making a final determination of the matter.)
Shorter time frames for court procedures. For example, the first listing of the case will be held within approximately 6 weeks from the time the case is filed and a Conciliation Conference is to be held within 90 days thereafter. This means that there is a chance for parties to attend a Conciliation Conference and attempt a resolution by agreement within 6 months from the date where the matter is first filed in the Family Court.
Intensive monitoring of the parties’ compliance with orders and reminder correspondence from the court when orders have not been complied.
Some years ago, there was a news report of a married couple in Cambodia who, when separating after 40 years of marriage, agreed to divide their home and its contents by sawing the house in half. This must be the most literal interpretation of a property split.
The wife kept the half of the house that was standing, while the husband carried off the other half of the home and installed it in a nearby field.
The news report went on to state that the couple took the drastic action to see their house in half as they felt that court proceedings to determine their property split would be too expensive.
The above story is a dramatic example, but it does capture the effect of a property split very well – upon separation, each party will walk away with a certain portion of the couple’s total asset pool.
How should married and de facto couples split their property on separation?
Under family law in Australia, there is no presumption of a 50-50 split of the couple’s total asset pool, even if parties have been married for a very long time. Instead, the Family Court will only make an order for a property split when satisfied that “in all the circumstances, it is just and equitable to make the order”.
The key is that the proportion and manner of the property split must be “just and equitable”. In simple terms, this means what is right and fair.
The Family Court has wide discretion to determine what is “just and equitable”. Generally, the court will go through a 4-step process to determine the proportion and the manner of the property split. This is applicable to both married and de facto couples. This process is only a guide, and the Family Court’s powers is not confined by any “step” or “stage” in exercising its discretion and reaching a decision that is just and equitable.
The four steps are as follows: –
Step 1
Identify and value all current assets and liabilities of the relationship. This includes: –
assets to which the parties, or either of them, are entitled. This would encompass assets held in one party’s name or in joint names or held by both or one of the parties jointly with third parties;
assets in Australia or overseas;
assets that were acquired by each party before the relationship started, during the relationship and after the relationship ended;
assets used by both parties or used solely by only one party;
assets for business or personal use;
assets held in any type of trust controlled by one or both of the parties.
Hence, all types and forms of assets must be identified and valued, including real estate, cash in the bank, stocks and shares, superannuation, business assets, cars, jewellery, companies, family trust interest and home contents.
Besides assets, all liabilities must also be identified and valued, including mortgages, personal loans, car financing, credit card debts and outstanding or expected tax liabilities.
If there is no agreement on the value, a valuation would be required.
Step 2
The next step is to consider what each person has contributed to the relationship: –
financial contributions made by each party to the relationship – this would include financial contributions for assets acquired before, during and after the relationship ended. This could be in the form of savings used to pay for the deposit for the home, earnings during the relationship to pay for the mortgage instalments and living expenses, each party’s inheritances and gifts received and other types of financial contributions.
non-financial contributions made by each party to the relationship such as the care of the children, household duties and the maintenance of the parties’ assets.
When considering the respective contributions of the parties, the court must consider all contributions holistically over the whole period from the commencement of the relationship to trial. There is no strict mathematical approach to determine each party’s contribution. This holistic approach to the assessment of contributions accommodates the wide range of factual scenarios to be dealt with by the Court.
Step 3
Consider the future needs of the parties, including:
the age and health of the parties
each party’s future income and financial resources (such as a family trust, or expected inheritance or compensation)
each parties’ capacity for employment
whether each party has care of a child
whether each party has responsibility for looking after other people
any other facts or circumstances which should be considered.
Step 4
The final step is to take a broad or helicopter view to make sure that the proportion and manner of the property split is “just and equitable” in all circumstances of the case.
When considering the property split, the Family Court has broad discretion to alter the interests of the parties. The Family Law Act provides that in property settlement proceedings, the court may make such order as it considers “appropriate”. This means that each case turns entirely on the view taken by the Family Court of the facts and merits of that case.
Property splitting upon the breakdown of a relationship can be a simple or complex process depending on the asset and liability pool and the factual scenario of each case. It is best that before parties embark on negotiations or make proposals to the other party that legal advice of your rights and entitlements is sought.
Contact us
For all enquiries, please get in touch with the family lawyers at Robertson Hayles Lawyers at (08) 9325 1700 or by email at enquiries@robertsonhayles.com or via our contact form, and we will be happy to assist you with your property settlement arising from your family law matter. We also assist with de facto property settlement.
In WA, there are two types of Powers of Attorney which an individual may enter into:
General Power of Attorney
Enduring Power of Attorney
Rationale for Making A Power of Attorney
Many are under the impression that we are only required to make a power of attorney if we are in business, have investment assets or are reaching old age. This is far from the truth.
Almost all of us hold some form of assets such as real estate, money in a bank account, vehicle, shares or a business. At some point or other, we travel for work or holidays during which time, an issue relating to our financial affairs may crop up. Young or old, we are not invincible. We may suffer the misfortune of losing mental capacity, temporarily or permanently, as a result of an accident or illness. During these times, it is vital that a person has been appointed as our attorney so that financial affairs can be dealt with quickly to meet our medical, personal or our family’s needs.
Power of Attorney Lawyers
There are therefore good reasons for you to consider making either a General Power of Attorney or an Enduring Power of Attorney. Robertson Hayles Lawyers have many years of experience as Power of Attorney Lawyers. Being experienced Power of Attorney Lawyers, we are able to provide you with advice and prepare the necessary power of attorney to suit your needs.
Many parents with child dispute matter Google searches on the internet on “How to win child custody”. All parents want the best for their children and want to succeed in their child custody dispute. However, “winning” in child custody cases is about reaching an agreement or obtaining court orders where the child’s best interest wins.
First, let us clarify what “child custody” is all about. It is important to know that the common term used is ‘child custody’ but in legal terms, the word “custody” is no longer used. Parenting agreements and court orders talk about with whom the child “lives with” and “spends time with”.
Child custody relates primarily to two issues: –
Parental Responsibility Whether both parents or only one parent should make decisions regarding major issues affecting their child such as schooling, health and religious upbringing; and
Live with and spend time Whether the child is to live with one, or both parents on an alternate basis and how much time the child is to spend with each parent.
The “best interest” of the child is paramount
Child custody laws in Australia are governed by the Family Law Act 1975, which is a federal law that applies throughout Australia. It states in clear and unambiguous terms that, “in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” This standard is often called the ‘paramountcy principle’.
In a previous case, the Family Court has said that “the paramountcy principle” means that the child’s interest is the focus and not the parents’ interest, preference or wishes. The wants, needs and well-being of the children override those of the parents.
A divorce is a court order that dissolves a marriage.
What is the divorce process in Western Australia?
Divorce only applies to a married couple. Divorce occurs when all legal requirements to end a marriage are completed. It starts with the married couple separating for 12 months and then filing a divorce application with the Family Court of Western Australia. The Family Court then hears the divorce application, and the marriage is legally ended when the Family Court makes a Divorce Order.
If you are in a de facto relationship, there is no requirement to undergo a divorce in court. In a de facto relationship, the relationship ends when you separate and inform your partner of the separation.
A divorce application can be filed as a joint or sole divorce application. If you have children under the age of 18 years, a court hearing may be required at the Family Court of Western Australia so the court is satisfied with the parenting and custody arrangements of the children. Otherwise, if a court hearing is unnecessary, the divorce application is heard without the parties.
A checklist for the Intended Executor and Administrator of a Deceased Estate
When a person dies with a Will, the executor named in the Will is expected to apply to the Supreme Court for a grant of probate so that the executor has the authority to deal with the assets of the deceased. Similarly, when a person dies without a will, a beneficiary of the estate would be expected to apply for letters of administration and be appointed the administrator of the estate and thus have the authority to deal with the assets of the estate. While this is usually required, there may be situations where there is no requirement to apply for a grant of probate or letters of administration.
Whether a grant is needed depends on the composition of the estate. An executor or the intended administrator should seek legal advice before making an application to the Supreme Court for a grant; in certain circumstances, the estate may not need a grant so you can avoid incurring the cost of the application. In Robertson Hayles Lawyers, we offer an initial consultation at a fixed fee. You will be able to obtain advice from an experienced lawyer about whether a grant is required and what the next steps to take in distributing the assets to the beneficiaries.
When making an appointment with a lawyer, the first thing to do is make a list of the estate’s assets so that the lawyer can review the estate’s composition and determine whether a grant is required. Here is a checklist to consider when making the list: –
Grandparents play an essential role in caring for children, particularly after separation.
Do grandparents have the right to see their grandchildren in Perth?
The simple answer is Yes!
Generally, the Family Court of Western Australia will consider that grandparents have a right to have a relationship with their grandchildren after the parents separate. The family court in Perth will make orders for families and children that live in the Perth metropolitan area and regional Western Australia.
What custody rights do grandparents have?
Grandparents have a right to be involved in their grandchildren’s lives, which includes spending time with them, having video calls or telephone communication and watching them at school events, assemblies and extra-curricular activities.
The Family Court also believes that grandparents can step in to care for their grandchild or grandchildren and have custody. Sometimes, a child welfare authority, like the Police or the Department of Child Protection, can make recommendations for a grandparent to care for a child when their parents separate or when there is a significant risk issue affecting the parent’s ability to care for a child, such as drug use or family violence.
A grandparent can apply for child custody in the Family Court of Western Australia. They can also ask the Court to make orders to enrol the child in school, seek medical treatment, or travel within or outside Australia with the child. The Family Court of Western Australia also hears court applications made by grandparents for a recovery order and relocation application.
We live in an international world where many cross borders for work, study, retirement, and leisure.
Many Australians hold real estate, shares, bank deposits and business interests in a foreign country. Similarly, many foreigners residing overseas hold assets in Australia.
Some people have assets not only in Australia and other countries but in multiple jurisdictions. Increasingly, lawyers have to deal with deceased estates with international probate issues.
Deceased estates with cross-border assets create challenges for executors, beneficiaries, and their lawyers. They have to deal with the administration of a deceased estate in a foreign environment without the knowledge of the law and procedures in multiple jurisdictions. In this scenario, executors and their lawyers will have to ask the following questions when dealing with international probate: –
Often, when dealing with estate disputes, we hear family members commenting on the deceased’s mental capacity and querying the validity of the Will made.
In estate disputes, the will-maker or testator’s lack of mental capacity to make a Will may form the basis for challenging the Will. Such cases have increased over the years.
This is unsurprising as dementia is a leading cause of death in Australia. Dementia is a term used to describe a group of conditions that affect the brain’s normal function. These conditions may affect memory, thinking, speech, mobility and personality. Dementia Australia, the peak body representing people who have dementia and their caregivers estimate that in 2020, 459,000 Australians are living with dementia and that without a medical breakthrough, this is expected to increase to 590,000 by 2028 and 1,076,000 by 2058.
The courts have consistently held that in determining whether the testator had the “soundness of mind” to make a Will, the test is whether the testator was sufficiently clear in his or her understanding of the following:-
The nature of the document, namely that the testator was making a Will.
The nature and extent of the testator’s assets including real estate, cash, superannuation, shares and other investments.
The persons the testator was nominating as beneficiaries under the Will and in relation to such nomination, the persons who could make a claim against the testator’s estate if they were left out or were not adequately provided for under the Will and the moral obligations that the testator owed to such persons.
On 1 January 2023, a union’s right to enter a Local Government workplace became governed by the Industrial Relations Act 1979 (WA) (the Act). Under the Act, unions enjoy a much broader right to enter into a Local Government to hold discussions than they did under the Fair Work Act 2009 (Cth).
Under section 49H:
A union official with an entry permit may enter, during working hours, any premises where relevant employees work, for the purpose of holding discussions at the premises with any of the relevant employees who wish to participate in those discussions.
the union official must give at least 24 hours’ written notice.
Section 49J(5) states that a union official’s right of entry permit may be suspended or revoked if they have:
Acted in an improper manner; or
Intentionally and unduly hindered an employer or employees.
In addition, union right of entry may be limited or restricted if the union’s visit would raise genuine safety concerns.
When a person dies, what must be done before the assets can be distributed to the beneficiaries?
If the deceased left a will, the executor named in the will must make an application to the Supreme Court for a grant of probate. When probate is issued, the executor has the power to collect the assets of the estate. Thereafter, the executor pays the liabilities of the estate including any tax payable. The net assets are then distributed to the beneficiaries named in the will.
If the deceased did not leave a will, the deceased is said to have died “intestate” and the beneficiaries are determined by law. A beneficiary then makes an application for letters of administration where the beneficiary is appointed the administrator of the estate. Once issued, the administrator has the power to collect the assets of the estate. The liabilities are then paid, and the net assets distributed to the beneficiaries.
If the deceased left a will, must all wills go through probate in Australia? What if the deceased did not leave a will, must all deceased estates without a will obtain letters of administration?
The short answer is that it depends on the nature of the assets left behind by the deceased.
The grant of probate or letters of administration must be obtained if the deceased’s estate has assets to be collected for distribution to the beneficiaries. For example: –
When a person passes away, leaving a will and assets in the estate, the executor named in the will must apply to the Supreme Court for probate. The grant of probate issued by the court gives the executor the authority to act on behalf of the deceased. When applying for a grant of probate, the executor should take the following steps:-
Locate the will and keep it in a safe place. The physical appearance of the will should not be altered in any way. Keep the will in the same condition as you found it. The deceased may have made more than one will in his or her lifetime. The will found may not be the latest will. A later will usually supersedes the earlier will. Therefore, =enquiries with the deceased’s financial planner, solicitor or accountants to find out if a later will exists. A document which does not have the formality of a will but sets out the deceased’s intentions with respect to the distribution of the deceased’s assets may be recognised by the Court as an informal will. In this case, the assets will be distributed in accordance with the terms of the informal will.
Obtain the original death certificate or a certified extract from the death registry or seek the assistance of the funeral director to obtain the death certificate.
In Australia, there are no inheritance taxes payable. There are no capital gains tax payable on a transfer of assets from the deceased to the estate and finally to the beneficiaries. However, as the Australian Taxation Office points out on its website, “There may be some tax obligations for beneficiaries, depending on the nature of any distribution they may receive.”
Receiving Assets from the Estate
Beneficiaries often receive money held by the deceased in a bank account. A beneficiary does not pay any tax on such money received. The deceased or the estate in the final tax return will pay tax on the taxable amount of the interest earned in relation to these monies.
Beneficiaries who receive real estate, or a share of the real estate from the estate are not taxed at the time when the title is transferred to them. Instead, they inherit the “cost base” namely the costs incurred by the deceased at the time when the real estate was acquired by the deceased so that when the real estate is disposed by the beneficiary, capital gains tax can be calculated to determine if any gain is made. Capital gains tax is payable by the beneficiary on any gain made.
This position is similar to company shares held by the deceased. Company shares transferred to the beneficiary are received tax free. Capital gains tax is payable when the shares are disposed of by the beneficiary and income tax is payable on income derived from the shares as dividends.
Receiving Money from Sale of Assets by the Estate
If the assets of the estate such as real estate or company shares are sold by the executor or administrator of the estate, they are required to pay any tax payable by the estate. The executor or administrator applies to the Australian Taxation Office for a tax file number and files an estate tax return. For a period of two years, the estate receives the benefit of paying tax at the progressive tax rate, same as an adult taxpayer. After that, the estate is taxed as a trust at the maximum tax rate if paid by the trustee, or if allocated to beneficiaries who are presently entitled then tax is paid by the beneficiary at their personal marginal rate of tax.
Recent studies show that about 60% of all Australians have a will with the number rising to over 93% for those aged 70 years and above. Most people who have wills do so as they believe it is important that they provide for their loved ones, primarily their children and their spouse or partner.
There is however no data as to the number of these wills being challenged when the will maker dies. Based on newspaper reports and our experience as legal practitioners, there is an increasing number of wills that are challenged by family members who were left out of the will or who felt that their inheritance was inadequate.
We often read in the newspapers of high-profile claims against a deceased estate. A recent example is the estate of the former Australian Prime Minister Bob Hawke who died in 2019. In his will, he left the bulk of his $18 million estate including his home in Sydney worth about $15 million to his second wife, Blanche d’Alpuget. He gave $750,000 to each of his children from his first marriage. One of Bob’s children sued his estate for an additional $4.2 million claiming that her father’s gift of $750,000 did not meet her needs. She stated in her affidavit that she had mental health issues, was reliant on welfare and needed more money from the estate to buy a house, pay for dental implants and other expenses. This claim went to mediation and recently settled for an undisclosed sum.
It is not only large estates that experience challenges to the will. We see increasing challenges to wills in smaller estates with assets of less than $500,000. The impact of such challenges means the asset pool available for distribution is reduced as a result of the legal fees payable by the estate in defending the claim. Challenges also mean that the distribution of the estate is delayed, impacting on beneficiaries who have an urgent need for funds. Often, challenges to wills result in close family members being estranged from each other.
When a person dies without a Will, the deceased is said to have died “intestacy”. As the deceased did not make a will and choose the beneficiaries of the estate, the beneficiaries are determined by law. A beneficiary of the estate is entitled to apply to the Supreme Court for a “grant of letters of administration” and to be appointed the administrator of the estate.
When the letters of administration are issued, the assets of the deceased are vested in the administrator. This gives the administrator the authority to collect the assets of the deceased for distribution to the beneficiaries.
Section 14 of the Administration Act 1903 (WA) sets out the entitlements of family members in intestate estates.
When applying for a grant of letters of administration, the intended administrator should take the following steps:-
Search for a Will of the deceased as the Court will not issue a grant of letters of administration unless the intended administrator shows that a thorough search had been carried out but no Will had been found. Make enquiries with family members and with the deceased’s financial planner, solicitor or accountant to find out if a Will exists.
The executor appointed is not acting in the best interests of the beneficiaries – can I remove the executor of the estate?
Beneficiaries often raise concerns about the competence or honesty of the executor appointed under a grant of probate. These concerns escalate when they do not receive their inheritance after a period of time has passed following the death of the deceased. In certain cases, the beneficiaries may be worried that their inheritance may be compromised as a result of a conflict between the executor’s personal interest and that of the beneficiaries. In these situations, when a tipping point is reached, the beneficiaries want to replace the executor.
The replacement of an executor is not a simple case of the beneficiaries acting unanimously and replacing the executor. The removal of an executor can only be achieved by a beneficiary or creditor of the estate making an application to the court for the grant of the probate issued to that executor to be revoked and for a new grant to be issued to a beneficiary or creditor of the estate or a professional trustee company or the Public Trustee to administer the deceased estate. An executor is usually a family member or a close family friend. Hence, the removal of an executor is not only a complex and costly exercise but can also be emotionally draining.
In Western Australia, under the court’s inherent powers and pursuant to section 18 of the Supreme Court Act 1935 (WA), the Supreme Court has the power to revoke the grant of probate issued in relation to a deceased estate within Western Australia. The court in all other states and territories in Australia have similar powers. In what circumstances will the court exercise its powers and remove the executor by revoking the grant of probate issued? Case law indicates the court may act when it is shown that the executor: –
He was not my mum’s de facto partner; he slept on the couch! Indicators to determine whether parties are in a de facto relationship in estate disputes.
More middle-aged and older Australians re-partner in later life, setting up increasing disputes between the children of an earlier relationship and the de facto partner as each battle for a share of the deceased partner’s estate.
In a deceased estate matter in the Supreme Court of Western Australia, the children of the deceased and the de facto partner were locked in dispute. The de facto partner alleged he was in a de facto relationship with the deceased and entitled to make a claim against the deceased estate. The children disputed this claim. During the hearing, the claimant alleged he shared a bedroom with the deceased while a witness alleged that he had slept on the couch. The Supreme Court rejected the witness’s evidence stating that the claimant would not have slept on a couch in the deceased’s home for 13 years when he had his own property. Sleeping and living arrangements form one but not the sole determinative factor in determining whether the parties were in a de facto relationship.
De Facto Partners and Claims to a Deceased Estate
We will explore the criteria to determine a de facto relationship but first, note that whether parties were in a de facto relationship is important for 2 reasons: –
I have been waiting ages for my share of the estate. How long does an executor have to settle an estate in Australia?
The law does not fix a determinate time by which an executor of a deceased estate must distribute the estate to the beneficiaries, failing which the executor will be in breach of his or her duty and face damages or penalties.
There is however a general principle under the common law that the executor ought to complete the administration of the estate within a year of the deceased’s death. This is referred to as the “executor’s year”. It is not a hard and fast rule. If the executor has taken more than a year to distribute the estate, the question is whether the executor has unreasonably delayed the administration of the estate. To determine this, all the circumstances of the case must be considered.
The executor’s year is a guide with the overriding principle being that the executor must not have caused unwarranted delay in the administration of the deceased’s estate.
Before an estate can be distributed, there are many steps for the executor to take which will impact on the time required to complete the administration of the estate, including the following: –
Issuance of the death certificate;
Obtaining the original will of deceased.
Determining the nature and value of the assets and liabilities of the deceased.
Applying to the Supreme Court for the Grant of Probate to be issued.
Once probate has been issued, the executor has the power to collect the assets of the deceased such as bank deposits, the refundable accommodation deposit (if the deceased was in aged care) )and investments. The executor also has the power to sell property, stocks and shares and any other asset of the deceased.
When the deceased’s assets have been collected, the executor must pay the creditors of the estate such as funeral expenses, outstanding loans, and other debts of the deceased.
Tax returns must be prepared and filed with the Australian Taxation Office relating to the deceased and the estate and such taxes, if any must be paid.
It may also be prudent to place a notice in the newspapers advising of the death of the deceased and calling for creditors to lodge their claims with the executor within 28 days. This time period must be completed to determine whether there are any debts to be paid.
The executor is then in a position to commence distribution of the estate to the beneficiaries.
A snapshot of family provision claims and the court’s power to alter the will made by the deceased
We sometimes read or hear of court cases where the court has allowed a claim made by a family member who has been left out of the last will made by the deceased. What does this mean? How is it possible that the court can interfere with the wishes of the deceased and alter the terms of the will? Who can challenge the will and make a claim for a share of the estate?
Normally, the court will not alter the gifts or terms of the will by the deceased. However, in all Australian states and territories, pursuant to legislation passed by parliament, the court has the power to alter the terms of the will and award a share of the estate to a family member who has been left out of the will. The court can also increase the share made to a family member under the will. The court’s power to alter the terms of the will is however limited to claims made by only certain family members and only to circumstances where the deceased had failed to make provision for that family member’s future well-being. This type of claim is often referred to as a family provision claim.
The first step is an objective criterion. Does the claimant fall within the category of person entitled to make a family provision claim? In Western Australia, under section 7 of the Family Provision Act 1972 (WA), only the following persons are entitled to make this claim: –
In an era of skyrocketing property prices, many parents are eager to help their children realise their dream of home ownership by providing them with funds.
Often, it’s unclear whether this financial contribution is a gift, a loan or an offer with strings attached. This lack of clarity may lead to disputes and is when the dream turns into a nightmare.
Your child’s separating spouse may be making a claim against the home or the child may be facing insolvency or your child’s relationship with their parent sours. In this case, the parent usually wishes to claw back the money they have contributed.
The matter
Recently, Robertson Hayles Lawyers was instructed to act urgently on behalf of a parent seeking to claim an interest in a property registered in the child’s sole name. It was on the basis that the parent had contributed substantial funds towards the purchase of the property. It was a matter of urgency as the child had moved quickly, already placing the property on the market and had applied to the land office to remove the parent’s caveat previously registered on the title.
When dealing with deceased estates, there is often a need to obtain the Grant of Probate or Letters of Administration as quickly as possible so that the assets can be distributed to the beneficiaries.
How long does Probate and Letters of Administration take?
This depends on the facts of each case. If the matter is complex, it may take some time to gather the relevant information to prepare the application for lodgement with the Supreme Court of Western Australia.
Probate – Deceased left a Will
We will be able to assist the executor named in the will and prepare the application for the Grant of Probate at the appointment at our office if: –
The original will is available.
The will is in order.
The death certificate has been issued.
All required information relating to the deceased are available including a list of the deceased’s assets and liabilities and their respective values.
What cheek! My brother has not spoken to our mum for 15 years and he now wants a share of her estate. Estrangement and the law on family provision.
It is a cultural tradition that parents leave their assets to their children upon their passing. At the same time, there is a strong community expectation that parents should retain the right not to leave their assets to children who are estranged from them.
The law seeks to resolve these countervailing expectations in a fair and just manner in relation to claims made by children who were estranged from their deceased parent and have been left out of the will.
“Estrangement” describes the condition where two parties are no longer in a friendly or affectionate relationship as a result of the attitudes or conduct of one or both parties.
There is no rule of law that a child is not entitled to make a claim for provision if he, or she, has been estranged from the deceased parent. However, under Section 6(3) of the Family Provision Act 1972, the Court may refuse to make an order for provision out of a deceased estate in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order, or on any other ground which the Court thinks sufficient.
Hence, the question is whether the applicant’s character or conduct leading to and during the estrangement is such that it disentitles the applicant to the benefit of a court order for provision out of the estate. Each case must be assessed on its own facts with the primary consideration being the nature of the estrangement and the underlying reason for it. The following cases illustrate this principle: –
A checklist for the Intended Executor and Administrator of a Deceased Estate
When a person dies with a Will, the executor named in the Will is expected to apply to the Supreme Court for a grant of probate so that the executor has the authority to deal with the assets of the deceased. Similarly, when a person dies without a Will, a beneficiary of the estate would be expected to apply for letters of administration and be appointed the administrator of the estate and thus have the authority to deal with the assets of the estate. While this is usually required, there may in fact be situations where there is no requirement to apply for a grant of probate or letters of administration.
Whether a grant is needed depends on the composition of the estate. An executor or the intended administrator should seek legal advice before making an application to the Supreme Court for a grant, in certain circumstances, the estate may not need a grant so you can avoid incurring the cost of the application.
Robertson Hayles Lawyers offers an initial consultation at a fixed fee. You will be able to obtain advice from an experienced lawyer about whether a grant is required and what the next steps are to take with distributing the assets to the beneficiaries.
Tribunal dismisses International Soccer Star’s allegations of ‘Indirect Discrimination’
A Tribunal has found that the Football Federation of Australia (the Football Federation) did not discriminate against an elite member of the Australian women’s soccer team (the Matildas) after she was required to pay childcare costs associated with a Matildas tour to the USA. The women’s soccer star was paid approximately $2,440 for the tour and her childcare costs were estimated at double that amount.
The soccer star argued that the Football Federation’s decision to not reimburse the child care costs amounted to ‘indirect discrimination’. However, the Tribunal found that although the Football Federation was ‘mean spirited’ and ‘inflexible’, its conduct was not a technical breach of ‘indirect discrimination’ provisions under the NSW Anti-Discrimination Act 1977 (which are generally mirrored in the WA Equal Opportunities Act 1984).
How ‘Indirect Discrimination’ Works
Under anti-discrimination legislation, a perpetrator engages in ‘indirect discrimination’ against an aggrieved person if, on the grounds of the aggrieved person’s responsibilities as a carer, the perpetrator requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply.
We offer a fixed-fee initial consultation so you can book in to discuss your matter without the worry of committing to a legal retainer. To book in for your initial appointment, please complete the appointment form or call (08) 9325 1700.
The news report went on to state that the couple took the drastic action to see their house in half as they felt that court proceedings to determine their property split would be too expensive.
