CONTESTING WILLS

There are three ways to contest a Will:-

1.             The Will was not executed properly.  Recently, Parliament has lowered the bar on what constitutes an enforceable Will.  Previously, there was a very rigid process and very strict requirements for how a Will was to appear, who could sign it, who could witness it, and how these signatures were to be attached.  Now, this is somewhat more relaxed and a document merely needs to show “testamentary intention”, that is, the document needs to show that the person who signed it (the testator) intended it to be a set of rules for distributing assets upon death.  If this is the case, the Court will often overlook non-compliance with format and execution.  Recently, the Queensland Supreme Court approved a suicide note as a Will, despite that fact that it had no witness signatures, and was not in any recognised format.  The Court ruled that the suicide note showed testamentary intention, and could be considered a set of directions for distributing assets.

2.             Lack of testamentary capacity or, simply, the testator did not have enough “marbles” to understand what he or she was doing when the document was signed.  These days, with strong medication and medical treatment prolonging the life (but not necessarily the quality of life) for people, Wills are being signed in circumstances where the mental capacity of the testator can be challenged.  Illness, medication and other variables, can all rob someone of the capacity to make rational decisions.  The question of whether this impairment is sufficient to prevent someone from understanding the nature and effect of a Will is a difficult and medically based question.  Expert evidence from the treating doctor, or other experts, will be required to show that it is likely that the person who signed the Will did not understand its nature and effect.

3.              Application for a provision (previously called testator’s family maintenance).  This, far more complex process will be covered in another blog.

CAR ACCIDENT – WHAT TO DO/ SAY AT THE SIDE OF THE ROAD?

1.          Move the vehicle out of the traffic.

2.         Slow down, take your time, secure the handbrake and put the car in gear.

3.         Safely get out of the car.

4.         Make an assessment of the attitude of the other driver.  If that attitude is aggressive,  retreat. 

5.        Do not, even if the accident is completely your fault, admit liability.  In some cases this can void your insurance. 

6.        Record details of the other driver and any passengers or witnesses – name, address, phone number, registration, make, model, driver’s licence number, name of insurer and motor vehicle owner.

7.         Make a note of any statements made, particularly statements referring to liability for the accident.  A contemporaneous note made at the roadside or shortly after, is very powerful if there is a dispute later.

8.          Report to a doctor if you have even the slightest symptoms of injury or illness.

9.          As soon as practicable, sit down and write a summary of what happened.

These actions, taken in a timely manner, can make all the difference to any claim made by or against you.

WHAT TO LOOK FOR IN A SOLICITOR

Costs

Costs of conveyancing vary wildly from firm to firm.  Be assured that you get what you pay for. 

Ask questions about seniority of the people who will be acting on your file and what searches will be done. 

Ask whether you will get a copy of the searches and an explanation of the search results. 

Ask whether perusal of your mortgage documents from your bank is included in the conveyancing price. 

Ask whether unqualified staff or junior staff will be acting on your conveyance. 

Ask about the systems and procedures in place to ensure that nothing is missed on your file.

At Bennett Carroll Solicitors, you get more than you pay for.  Senior people, search results explained in an all inclusive price.  No junior staff, no unqualified staff, and a complete management system to ensure nothing is missed on your file.

Accessibility

Over 70% of complaints to the professional body governing Lawyers relate to inability to get a Lawyer on the phone or to get that Lawyer to return telephone calls. 

Ask whether the firm has a policy on accessibility and returning telephone calls when you have a question you want answered quickly.

At Bennett Carroll, we answer your questions and your calls.

Provision of information

Ensure that you are happy that you are going to receive up to date information as your matter progresses. 

Ask if there is a policy regarding copies of correspondence in and out being sent to you. 

At Bennett Carroll Solicitors, providing you with information and copies of correspondence is automatic.  You do not have to chase us for information.

The comfort factor

Make an assessment when speaking to each law firm of whether they have an approach which makes you comfortable.  Are you going to be able to work with these people?

At Bennett Carroll Solicitors, we are intent on taking away the stress and working closely with you to ensure complete satisfaction.

A language you can understand

Look at the style of communication used in these initial telephone calls.  Do they respond to your questions using your kind of language or is it “Legal Ease”?

At Bennett Carroll Solicitors, we talk commonsense no frills English that you can understand.

BELLIGERENCE VERSUS CO-OPERATION

Ask about their approach to resolving disputes over your matter.  Some firms will automatically take a belligerent, aggressive and obstructive attitude.  Others, whilst protecting your rights, will work in a co-operative manner to try and ensure that your Contract settles. 

At Bennett Carroll Solicitors, we protect your rights and work in a co-operative manner to ensure settlement at all times.



Bennett Carroll History

Bennett Carroll has been serving the community of Brisbane since 1974.

The firm was started by Joan Bennett in the Upper Mt Gravatt area, and she was joined by Frank Carroll in 1977.

The present CEO Guy Gibbons joined as an articled clerk (apprentice), in 1986, and became a partner in 1988. 

Guy was appointed the managing partner in 1992.

The firm began its journey into becoming a wireless, paperless file management in 1994, and over the next 10 years perfected the wireless, paperless file system, allowing us to send lawyers with laptops out to clients, enabling them to work anywhere, seeing every file live 24 hours 7 days a week. 

The present evolution of the system was installed in January 2004.

In May 2004, with the installation of a video conferencing system, Bennett Carroll commenced to grow and now has 4 offices in south east Queensland, and affiliate offices in Sydney, Melbourne, Adelaide and Perth all working simultaneously on the Bennett Carroll system.

In 2007, Bennett Carroll moved its Brisbane’s south office into Hughesville Homestead, the historic and iconic 1870s homestead at Eight Mile Plains on the southern outskirts of Brisbane.

Although not the largest office in the Bennett Carroll group, it is certainly the best known, and continues to attract visitors as a tourist destination in its own right, something a little unusual for a law firm office. 

Conveyancing – Cooling off period

In 2000 the government attempted to bring in a new regime for managing the contract process in Queensland.  It was called the Property Agents and Motor Dealers Act (PAMDA).  The theory was, among other things, to provide an opportunity for buyers to walk away from contracts in the first few days, if they got cold feet.  This is called the cooling off period. 

Unfortunately the first few evolutions of this legislation were so badly drafted that the cooling off period was meaningless.  The original process for executing the contract was so tortuous that it was very difficult to know when a contract cooling off period started.  This has now been rectified.

The PAMDA process allows a buyer to terminate a contract without reason within 5 working days of the contract becoming fully signed, but the buyer loses part of the deposit.  Even now, with some care and thought, a buyer can have considerably longer (14 or 21 days even) to terminate a contract under building, pest, electrical or finance clauses, and lose none of the deposit.  This is obviously ridiculous.  The upshot of all of this process is that it is essential that, if you do want to terminate a contract, you immediately seek advice as to the best option, which may well preserve your deposit in full. 

Client File Access

Since 2009 Bennett Carroll clients have been able to securely dial in at any time of the day or night, and see the progress of this file, checking on the status of matters such as whether correspondence has been sent or received, documents filed, or whether a deadline (building pest or finance in a conveyance for example) has been complied with.  This saves clients having to ring or enquire on important milestones for the file.  It also allows commercial clients with multiple files, to monitor the progress on an ongoing basis.

Conveyancing – REIQ Contract –a Sellers Contract?

Over the years, the REIQ (Real Estate Institute of Queensland), the “union” for real estate agents, has produced a contract which has become and remains the standard when signing contracts to transfer residential property.  There are others, but the vast majority of contracts are signed in this format. 

The original contract (going back into the 1970s) was drawn specifically to be a balance of the rights of buyer and seller.  This changed in the 1990s. 

Contracts up until that stage allow the buyer to make a full range of enquiries on the history and condition of the property, and allow the buyer to walk away and recover the deposit, if any one of a large number of circumstances existed. 

One of the most obvious and sensible of these related to building work done on the property which did not have council approval (originally clause 21(1)(b)). 

Unfortunately, in the 1990s, a lot of contracts were terminated pursuant to this and other clauses in the contract.  This cost a lot of real estate agents their commission as the contracts were not being completed.

Subsequently, and for reasons we can only speculate upon, these clauses were dropped from the REIQ standard form.  At that stage, the Queensland Law Society which had co-published this contract, stopped endorsing it. 

Presently, there are very few clauses allowing a buyer to terminate a contract.  If your property floods, has unauthorised building work, has possible but not finalised  road widening, resumption, electricity, rail or local authority plans which might effect detrimentally affect your property and that information is publically available, searching those public records will no longer do you any good (unless you can use it to terminate under the finance clause).  In fact it may be a disservice, because you will then have this knowledge, which may hamper you from selling the property at a later stage. 

Consequently the “don’t ask don’t tell” regime has been in place.

As a result, council records are not updated because unauthorised building work is not being found, and the contracts are no longer a balance of the rights of buyer and seller. 

One option to restore the balance is to write on the contract, a proper due diligence clause, allowing the buyer a reasonable time to make full enquiries, and terminate the contract, if any of those enquiries are unsatisfactory.

Another solution, which has been adopted in the Northern Territory, has been for the state government to legislate a base line residential contract, and take the conflict out of the hands of the REIQ which can then properly represent the rights of real estate agents, without having to pretend to balance the rights of other parties under the contract process.

Bennett Carroll – Truly National

Since the mid 80s Bennett Carroll have had sister firms operating in most locations in Australia and New Zealand and as far as field as North America and Western Europe.

Now, we are proud to say that the Bennett Carroll system has spread throughout Australia with firms in every capital city operating on the Bennett Carroll system.  Bennett Carroll firms work seamlessly in each capital city, entering data and maintaining their files on the Bennett Carroll servers.  This allows clients to use their secure password process, to monitor the progress of the file all around Australia, regardless of which Court or which state is applicable.  A client with business in Queensland, New South Wales or Victoria for example, can now instruct Bennett Carroll and have the work done using local knowledge, while still staying within the Bennett Carroll group and watching the file directly, electronically, on an ongoing basis.  This is enabling the Bennett Carroll Group to capture work all over Australia, ignoring the increasingly irrelevant state borders. 

     

Conveyancing - Why do searches

The conveyancing process is the partly transfer of a property, and partly a due diligence process.

It is very difficult for a buyer to know everything about a property at the offer stage.  If the property is brought at auction, there may in fact be very little that you know about that property when you did.  It is expensive to do a full due diligence on any property when you might not have your offer accepted.

As a result, you will need to find out about the property before it becomes unconditional.  Standard “subject to” clauses include – finance, building, pest, and pest.  These are written into the standard REIQ contract.  If any of these items are found to be unsatisfactory during this time, then, provided you are acting reasonably, you can terminate contract without loss, and recover your deposit.  Be aware that you may be asked to provide a copy of the documentation upon which you are relying, to terminate that contract.  You may also be asked to justify the reasonableness of your action.