Out of Time Family Provision Claims

In New South Wales the Succession Act provides that an eligible person must commence Court proceedings for provision out of the Estate of a deceased person within 12 months from the date of death.

If proceedings are not commenced within this time then the Claimant will be met by a defence that the claim is statute barred and should be dismissed.

Under Section 58(s) of the Act the Court has discretion to extend the time for making an Order. Such extension is granted only upon sufficient cause being shown, often where there is no prejudice to the Estate, and where the delay is explained by the person challenging the Will.

A case that considered extensions of time in the New South Wales jurisdiction is the case of O-Brien v Luscombe. In this case the Supreme Court was asked to consider a claim for provision when the claim was brought 8 years after the time to bring a claim had expired.

In this case the Court considered four general questions to be considered when determining whether to extend the time limit.

1. Is it a strong claim with sufficient merit?

2. Is there any prejudice to any beneficiaries that have already received an interest from a distribution from the Estate (including any real expectations in relation to property)?

3. Is there a reasonable explanation for the delay in bringing the claim?

4. Is there any unconscionable conduct by any other person?

Any attempt to extend the limitation period will be considered on its individual facts. If an out of time Claimant is able to enliven the jurisdiction by extending the time this does not necessarily mean that a claim will succeed. A Court if it is to allow an eligible person to make a claim out of time would then need to satisfy itself of two questions:

1. Has the Applicant, been left with adequate provision for his or her proper maintenance, education and advancement in life? And if not,
2. What provision ought to be made of the Estate of the deceased in favour of the Applicant?

If you require specialised advice in respect of a potential claim involving a Will, Everingham Solomons, has the expertise to assist you with respect of such claims, because Helping You is Our Business.

Business.

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Claims by adult children in contested Wills

As a child of the deceased, a daughter or son of the deceased is deemed to be a person eligible to bring a claim under the Succession Act which allows for eligible people to make an application to vary the Will. In NSW a claim must be made within 12 months of the date of death.

There is an emerging predisposition on the part of Judges of the Supreme Court that adult children bringing a claim for further additional benefits from the Estate, which their claims may be dismissed entirely or otherwise the provision made for them will be made in a paltry amount.

This is particularly true when a Court looks at the conduct of the adult children towards the deceased when assessing what weight to give to the deceased’s intention to deliberately leave adult children out of their will.

The starting point of the Act is that the freedom of the person making the Will is the foundation principle and that consideration and proper respect must therefore be afforded to a capable testator’s judgement. A Court cannot simply “ride roughshod over the testator’s intention.”

There is no rule or principle that the deceased has an obligation to make provision for an adult child. Neither is a testator required to look after a child for the rest of the child’s life into retirement.

In circumstances where there is evidence that the child has been callous, hostile or indifferent towards the deceased the Court will not look favourably on the clear intentions of the deceased in favour of adult children.

In cases of small Estates, where there is a surviving widow, it is sometimes deemed appropriate that no provision be left for the adult children at all.

An adult child cannot presume to have an automatic right to a share of the estate of a parent. Nor does an adult child have an automatic right to parity as between his and her siblings, as was found in the case of Revell v Revell.

At Everingham Solomons, we have the expertise to assist you with respect to such claims, because Helping You is Our Business.

Click here for more information on George Hoddle.

Are you without a Will or does your Will need updating?

In continuing support of a great cause, from 22 to 26 March 2021, Everingham Solomons Solicitors are preparing professionally drafted Will packages* at the heavily discounted rate of $125 per person (or $225 per couple), with 100% of the proceeds being donated to the Westpac Rescue Helicopter Service.

Bookings are essential and can only be made online via www.rescuehelicopter.com.au/willsweek or by calling 1800 155 155 by 26 February 2021.

*applies to simple Wills only and does not apply to more advanced estate planning arrangements at Everingham Solomons’ discretion.

Restraint Of Trade

Employment Contracts can contain Restraint of Trade clauses which affect the post-employment obligations of employees to their former employer.

Employees who are contemplating new employment in a similar area either for a competitor or related industry should first review the status of their post-employment obligations.

Often new employers require that an incoming employee warrant that they are not bound by any restraints.

When reviewing whether or not a restraint is valid the starting point is Section 4(1) of the Restraint of Trade Act 1976 which provides:

“A restraint of trade is valid to the extent to which it is not against public policy, whether it is several terms or not”.

A basic interpretation of this section is that a person has the right to pursue their chosen profession in the area in which they live.

This is reflected in the Court’s interpretation of restraint as articulated in the judgment of Vanderall Products Ltd v McLeod [1956] RPC185:

“An employer is not entitled to be protected against mere competition, a legitimate interest in the employer which may be subject of protection by covenant are in the nature of proprietary interest”.

An employer is entitled to protect their property. Such property includes client lists, intellectual property and trade secrets.

A restraint however can still be valid in circumstances where the parties have agreed to the restraint in writing and it is reasonable given the seniority and public perception or “face of the business” that the employee held whilst employed.

This position was articulated in the judgment of Cactus Imaging Pty Ltd v Glen Peter [2006] NSW SC717:

“It is plain that employer’s customer connection is an interest which can support a reasonable restraint of trade. Such a restraint is legitimate if the employee has become vis-à-vis, the “human face” of the business, namely the person who represents the business to the customer.”

In these circumstances it is merely a matter of interpretation as to restraint, time and geographic area as to what is reasonable.

Everingham Solomons has the specialist knowledge to assist in the interpretation of reasonable enforceable restraints for either a potential exiting employee or drafting the necessary Employment Contracts for a prudent employer.

If you require assistance, please contact Everingham Solomons because Helping You is Our Business.

Click here for more information on George Hoddle.

Domestic Violence Leave for Workers – Employers Take Note – George Hoddle

GRHRecently the Fair Work Commission during its four-yearly review of Modern Awards has ruled on Domestic Violence Leave.

In response to the submissions of Unions and the demands of the general public on the issue, the Fair Work Commission has sought to protect workers, noting “family and domestic violence is a community issue and requires a community response.”

The Fair Work Commission has released the final domestic violence leave model which will be inserted into all modern awards which will see Domestic Violence Leave being made available to workers from 1 August 2018.

The key elements of the incoming domestic violence leave are as follows;

  • The Leave will be unpaid;
  • The entitlement is up to 5 days leave annually;
  • It will apply to all employees including full time casuals and part-time employees;
  • The leave will not accumulate from year to year but will be available in full at beginning of each 12 month period;

The new provision will protect employees from any adverse action an employer may take against an employee for taking time off in accordance with the Domestic Violence Leave regime.

The change to the modern awards is significant and will require employers to review and update their policies and procedures.

Everingham Solomons has the specialist skills to be able to assist in the implementation of new or the updating of existing policies in respect to Domestic Violence Leave and other workplace policies because at Everingham Solomons, Helping You is Our Business.

Click here for more information on George Hoddle.

The Christmas Break – George Hoddle

GRHThe heat has arrived in the North West and the countdown to Christmas is here. This is an opportunity for employers to review how their business deals with one of the biggest liabilities that sits on their books. It is of course annual leave.

The January period in the region for many industries and sectors is often the quietest month which in turn may or may not require a fully staffed workplace.

Under the National Employment Standards (NES) workers in full time employment are guaranteed a minimum four weeks annual leave per year or for some shift workers 5 weeks. If those minimum weeks of annual leave are not taken during the calendar year the residual leave not taken accumulates. If this is multiplied over a number of years a significant liability owed to employees can leave a business exposed.

A practical way to reduce this liability is to direct or require employees to take their annual leave over the Christmas/New Year shutdown. Approximately 28% of Australian workers are ‘forced’ to take annual leave each year.

Whether or not an employer can require an employee to take annual leave depends on the terms of applicable modern award (noting that there are 83 modern awards) and or the terms of their employment contract.

An employee should be given eight weeks written notice but no more than 12 months’ notice of forced leave. In circumstances where leave is required the leave must be at least one week. Employees cannot use personal leave as annual leave as these are two separate entitlements and under the NES cannot be traded off.

Another option to reduce liabilities is for employees to “cash out” their annual leave. An employer can’t pressure employees to do so and if agreed the agreement must be in writing. Any payment must be made at the same rate as if the employee was taking leave.

The potential exposure of accumulated annual leave highlights the need for correctly drafted employment contracts. At Everingham Solomons we have the expertise to advise you on the terms of modern awards and the drafting of employment contracts.

The team at Everingham Solomons wishes everyone a safe and Merry Christmas and we look forward to helping you in 2018 because, Helping You is Our Business.

Click here for more information on George Hoddle.

Claims by adult children in contested Wills – George Hoddle

GRHAs a child of the deceased, a daughter or son of the deceased is deemed to be a person eligible to bring a claim under the Succession Act which allows for eligible people to make an application to vary the Will. In NSW a claim must be made within 12 months of the date of death.

There is an emerging predisposition on the part of Judges of the Supreme Court that adult children bringing a claim for further additional benefits from the Estate, which their claims may be dismissed entirely or otherwise the provision made for them will be made in a paltry amount.

This is particularly true when a Court looks at the conduct of the adult children towards the deceased when assessing what weight to give to the deceased’s intention to deliberately leave adult children out of their will.

The starting point of the Act is that the freedom of the person making the Will is the foundation principle and that consideration and proper respect must therefore be afforded to a capable testator’s judgement. A Court cannot simply “ride roughshod over the testator’s intention.”

There is no rule or principle that the deceased has an obligation to make provision for an adult child. Neither is a testator required to look after a child for the rest of the child’s life into retirement.

In circumstances where there is evidence that the child has been callous, hostile or indifferent towards the deceased the Court will not look favourably on the clear intentions of the deceased in favour of adult children.

In cases of small Estates, where there is a surviving widow, it is sometimes deemed appropriate that no provision be left for the adult children at all.

An adult child cannot presume to have an automatic right to a share of the estate of a parent. Nor does an adult child have an automatic right to parity as between his and her siblings, as was found in the recent case of Revell v Revell.

At Everingham Solomons, we have the expertise to assist you with respect to such claims, because Helping You is Our Business.

Click here for more information on George Hoddle.

Pro Rata Long Service – George Hoddle

GRHUpon the continuous service of 10 years a worker in most circumstances is able to qualify for long service leave. It is worth noting however, that in certain situations an employee may be able to qualify for long service leave on a pro rata basis before the expiry of obtaining 10 years continued service.

The Long Service Leave Act provides that an employer must pay an employee (with more than five years but less than 10 years’ service) their pro rata long service leave entitlements where the employee resigns from their employment “on account of illness, incapacity or domestic or other pressing necessity, or by reason of the death of the worker.”

To be able to satisfy a claim for pro rata long service leave a worker must be able to satisfy the following;

  1. Was the reason claimed for termination one which fell within the section?
  2. Was the reason generally held by the worker not simply colourable or a rationalisation?
  3. Although the reason claimed may not be the sole ground which led the worker in his decision to terminate, was it the real and motivating reason?
  4. Was the reason such that a reasonable person in the circumstances in which the worker found himself/herself placed might have felt compelled to terminate his employment?

When considering whether or not an employee is entitled to a pro rata long service leave after five years will be fact-specific. For example the Supreme Court has recognised that uncertainty regarding the future of one’s employment and the need for security of employment both for an employee’s professional reasons, and to support their family, is a circumstance which can be taken into account when determining whether or not an employee resigned on account of “pressing necessity”.

Whilst less than 10 years, pro rata long service leave entitlements can be significant. Whether you’re an employee or an employer it is worth considering whether or not the circumstances give rise to a payment or claim for pro rata long service leave. At Everingham Solomon’s we can provide you that advice, because Helping You is Our Business.

Click here for more information on George Hoddle.

Family Provision Claims – Keeping the Farm Together – George Hoddle

GRHRecent decisions in the Supreme Court have reinforced the Courts preference for keeping family operated farms together in certain situations in circumstances where a Will is contested.

A recent case involving a grazing property near Wagga Wagga upheld the deceased’s wishes to keep together a farming operation that had been left to the son at the exclusion of a claim made by a city-based daughter of the deceased. Whilst the daughter had been able to establish need she was ultimately unsuccessful.

When determining need “the court also considers the nature, extent and character of the estate.” The character of the estate in an example of a rural estate with its major asset a working farm is a significant factor that a court will consider.

When considering Provision Claims the Court will assess the needs both present and future of a person of whom makes an application for Family Provision. In the context of rural estates the term “Need” is very much an ambulatory concept.

A deceased testamentary intention to keep a farm together as an integrated economic unit, managed and run by a beneficiary of their choosing is something that a court gives significant weighting to.

Arguments about fairness between children of the deceased can be overtaken by a clearly expressed intention of the deceased. The position of the Supreme Court is that it has no mandate to simply “ride roughshod over the testator’s intentions”

When considering breaking up a rural estate a Court will look to whether or not the viability of the farm is dependent upon it operating as an integrated whole and if the deceased’s intention to keep the farm together was made clear.

The recent decisions of the Supreme Court only stand to emphasise the need to have a clearly defined succession plan in place. At Everingham Solomons we can assist with such planning because Helping You is Our Business.

Click here for more information on George Hoddle.

Twas the night before the Christmas Party… – George Hoddle

GRHThe Mercury has risen, Paul Kelly is making gravy, Christmas is just around the corner and the Christmas parties are now in full swing.

Christmas parties for employers and employees provide a welcome relief from the day-to-day stress of being in business. It is an opportunity for employers to show their appreciation for the year’s hard work to their employees.

Both employers and employees should be wary however, that a Christmas party even if it is outside of office hours and at a different venue than the normal workplace is still defined as “in the course of employment”.

A recent decision in the Fair Work Commission saw an employee whilst behaving in an otherwise inappropriate and offensive way, did not constitute grounds for dismissal. The Member in that decision noted several reasons, the most notably being that the employer allowed unlimited alcohol consumption. In this case it was found that it was “entirely predictable that some individuals will consume an excessive amount and behave inappropriately”. One of the basis of this decision was it was contradictory for an employer to supply endless alcohol and then dismiss an employee as a result of behaviour affected by the endless supply of alcohol.

Employers can be liable for actions of their employees at work related events these include Christmas parties.

It is however, important to remember that Christmas parties are a time to enjoy your colleagues’ company in a more relaxed environment. In the spirit of the season Everingham Solomons provides a Do’s and Don’ts for both Employees and Employers for the Office Christmas Party Season;

Do’s

  • Turn up! Get to know your colleagues outside the office environment.
  • Choose your karaoke song wisely;
  • As alcohol will normally be served at office events, employers should organise travel arrangements, such as a taxi or courtesy bus to ensure their employees get home safely.
  • Ensure your staff are reminded that a Christmas party is a workplace event and the expectation is that behaviour will reflect this. A timely reminder to staff of any existing office policies and procedures, particularly in relation to sexual harassment and bullying would also be relevant.
  • Monitor your own behaviour this includes alcohol consumption
  • Enjoy yourself!

Don’ts

  • For employers if you receive a complaint post the Christmas party, take it seriously and investigate it as you would any other office incident.
  • Do not do something you know you would not be allowed to do in the office. Remember policies of your workplace apply.
  • Remember, the Christmas party is not the time to campaign for a pay rise!
  • Employees and employers should refrain from posting photos of the Christmas party and social media to avoid embarrassing pictures of themselves and colleagues entering the Twittersphere

The simple message for all is to enjoy yourselves in a responsible manner. Everingham Solomons wishes everyone a safe and Merry Christmas please don’t drink and drive. Helping You is Our Business.

Click here for more information on George Hoddle.