ByLawyers News and Updates

Excluded beneficiary – NSW

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A recent Supreme Court case regarding an excluded beneficiary will be of interest to wills and estates practitioners. The court considered the effect of statements under s 100 of the Succession Act 2006 (NSW).

Nikolaos Tsiokanis died in 2019, aged 86. His will appointed two of his children as the executors of his estate. He made only $100  provision for his other daughter. The deceased made a lengthy statement in the will as to his reasons for effectively excluding his daughter.

The daughter brought a family provision claim. The estate was not a large one.

The court held that the relationship the deceased had with the executors was a stable one and they played an important role in caring for the deceased. The court said the deceased was entitled to, and did, take the plaintiff’s behaviour into account and was satisfied that it justified the reduction of the plaintiff’s share in the estate to nominal provision.

The court also held that the deceased was entitled, when considering any claim by an excluded beneficiary, to consider the nature and value of his estate and to consider, and give priority to, the competing claim of each of the executors with whom he had a close, loving, and supportive relationship.

The court noted that statements made by the deceased are admissible pursuant to s 100(2) of the Succession Act, however the court is not required to accept, unquestioningly, the truth, or accuracy, of the statements. This is particularly so if the content is denied by the applicant, or where there is other evidence that casts doubt upon their accuracy. The court needs to consider that the deceased may have made untrue, or inaccurate, statements, either deliberately, or unintentionally, or it may be that their view is misconceived.

Where evidence of a statement of a deceased is admitted under s 100(9), for the purpose of destroying, or supporting, the credibility of the deceased, s 100(10) permits evidence to be given for the purpose of showing that the deceased’s statement is inconsistent with another statement made, at any time, by the deceased.

Georgopoulos v Tsiokanis & Anor [2022] NSWSC 563 (11 May 2022) will be added to the By Lawyers 101 Succession Answers publication.

Domestic and family violence – QLD

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Some temporary procedural arrangements for initiating and hearing domestic and family violence applications in the Magistrates Court of Queensland have become permanent from 30 April 2022.

These arrangements were originally put in place as a response to the COVID-19 pandemic, but the resulting efficiencies have seen the parliament entrench arrangements that allow parties and practitioners to interact with the court remotely.

Amendments under the Justice and Other Legislation Amendment Act 2021 impact various Acts and procedures. Those relating to domestic and family violence matters include:

Audio visual link

A new section 142A of the Domestic and Family Violence Protection Act 2012 provides that the Magistrates Court may conduct all or part of the proceeding by the use of audio visual links, or audio links. This includes:

  • appearances;
  • giving evidence;
  • making submissions;
  • taking an oath or affirmation.

Electronic filing

A private application for a Temporary Protection Order (TPO), or an application to vary a TPO, can be filed electronically in any Queensland Magistrates Court if the court is closed on a normal business day, or if the applicant is required to isolate under a public health order.

Listing before verification

In circumstances of urgency, where a private applicant is unable to verify their application for a Temporary Protection Order before a Justice of the Peace or solicitor, they can obtain a hearing date, and then serve the application on the respondent, without verification. The application can be subsequently verified in front of the magistrate who hears the matter.

The commentary in the By Lawyers Protection orders guide has been updated accordingly. An alert has been added to draw practitioners’ attention to the likelihood that proceedings will involve audio visual appearances and evidence.

Removal of an executor – VIC

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New precedents for the removal of an executor have been added to the Probate and Letters of Administration matter plans.

In Victoria, an application can be made to the Supreme Court for the removal of an executor under s 34(1)(c) of the Administration and Probate Act 1958.

The court can remove the executor if, following an examination of the facts including a significant weighting to the testator’s intention to appoint the executor, the court is satisfied there is:

  • undue delay in the administration of the estate; or
  • a conflict of interest; or
  • an unworkable relationship between co-executors;

that would lead to significant mischief or harm to the beneficiaries’ interests.

In Connock v Connock (in His Capacity as Executor of the Estate of Connock) [2021] VSC 64 the plaintiff was the widow of the deceased. Both had previously been married and had children from these marriages. The plaintiff’s interest in the estate was limited to the assets of the deceased’s superannuation fund and proceeds from various bank accounts. The deceased’s will made no provision for the widow to take an interest in the residue of the estate.

The executor, the deceased’s child of the first marriage, commenced estoppel proceedings seeking a declaration that the plaintiff held the estate assets for her benefit and maintenance during her lifetime, but, on her death, for the benefit equally of the deceased’s children – one of whom was the executor.

The plaintiff claimed and the court accepted that the executor had a conflict of interest between the executor’s duties and his personal interest in the outcome of the estoppel proceeding, but that this conflict did not warrant the removal of the executor. The court held that, although the executor is in a position of conflict, in the circumstances the welfare of the beneficiaries of the estate did not warrant his removal.

The new form content precedents added to the Probate and Letters of Administration publications are:

  • Originating motion to remove and replace executor;
  • Originating motion to remove and replace trustee;
  • Originating motion to remove and replace executor and trustee.

Remote witnessing – QLD

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From 30 April, 2022 certain temporary remote witnessing measures under the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020 (QLD) which allowed parties to make and sign legal documents remotely using digital technology will become permanent. This continues a trend that has seen many COVID-related changes being permanently retained.

The Oaths Act 1867, Powers of Attorney Act 1998, and Property Law Act 1974 have been amended to allow remote witnessing of

  • affidavits,
  • statutory declarations,
  • general powers of attorney for businesses,
  • deeds, and
  • mortgages over an electronic lodgement network.

These documents can all be made remotely, via an audio-visual link, and signed and witnessed electronically.

Nurse practitioners, in addition to doctors, can continue to certify that a person has the capacity to make an advance health directive.

These changes do not limit the ability to make, sign and witness these documents on paper and in person, with respect to which the usual legislative requirements continue to apply.

All relevant By Lawyers guides and precedents have been updated where necessary to reflect these newly permanent arrangements.

However, not all temporary COVID arrangements for remote witnessing have been entrenched permanently.  The temporary laws allowing wills, enduring powers of attorney, and advance health directives to be witnessed over video conference expired on 1 July 2021. This means that these instruments must again be signed and witnessed in person. Similarly, unless given by an individual as part of a commercial transaction, a general power of attorney for an individual must be a physical document that is signed in the presence of a witness.

Amendment of the PIC rules – NSW

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Recent amendment of the PIC rules impacts procedure for motor accident claims and workers compensation claims in the Personal Injury Commission.

The Personal Injury Commission Rules 2021 govern proceedings in both of the Commission’s divisions. The rules have received their first review since the PIC commenced operations. The review has resulted in a number of relatively minor tweaks and additions, and one substantial change.

The minor amendments include:

  • provision for consistency across the divisions as to the material that is lodged in applications;
  • provision for compliance with notices for production across divisions;
  • procedure for lodgment and admission of surveillance recordings;
  • provision for SIRA to intervene in Merit Review Panel proceedings;
  • clarification that an application to refer a medical dispute for assessment can be may be made at any time.

Amendment to time limits for appeals

The substantial amendment relates to time limits. An anomaly in the legislation that established the PIC meant that there has until now been no discretion for the Commission to extend the time for an application or appeal beyond the 28-day period provided in the Act. The legislation has now amended to alleviate that situation, and a new Rule 133A is included in this amendment of the PIC rules to enable the time for applications and appeals to be extended where necessary.

The criteria for extension of time under the new rule is that, for the applicant to lose the right to lodge would result in demonstrable and substantial injustice.

The commentaries in By Lawyers Motor Accident Claims – from 1 December 2017 and Workers Compensation publications have been amended accordingly.

Work health and safety – WA

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Work, health and safety laws in WA have changed. The Occupational Health and Safety Act 1984 (WA) has been repealed from 31 March, 2022.

The repealed Act has been replaced with the Work Health and Safety Act 2020. The provisions of the old Act have been consolidated and recast in the new Act, which is substantially based on the national model Work Health and Safety Bill.

The national model Bill was developed under the Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety to underpin a harmonised WHS framework in Australia.

This means WA has now harmonised its legislation with the majority of other Australian jurisdictions.

The key elements of the new Act include:

  • a primary duty of care requiring persons conducting a business or undertaking to ensure the health and safety of workers and others who may be affected by their activities;
  • duties of care for persons who influence the way work is carried out, as well as the integrity of products used for work and persons who conduct training in workplaces;
  • a requirement that officers exercise due diligence to ensure compliance;
  • a framework to establish a general scheme for authorisations such as licences, permits and registrations;
  • protection against discrimination for those who exercise or perform or seek to exercise or perform powers, functions or rights under the Act;
  • continuation of Western Australia’s peak consultative bodies, re-established as the Work Health and Safety Commission (WHSC) and the Mining and Petroleum Advisory Committee (MAPAC).

The commentary in the By Lawyers Employment Law publication has been updated accordingly.

Family provision cases – VIC

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Changes have been made to the way family provision cases are managed in the Supreme Court of Victoria.

The latest version of Practice Note SC CL 7 (Second revision) provides guidance on how proceedings in the Testators Family Maintenance List are managed by the court.

Family provision claims made under Part IV of the Administration and Probate Act 1958 are commenced in the Testator’s Family Maintenance List, in accordance with Order 16 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018.

The main procedural changes for management of family provision cases from the previous version of the practice note are:

  • an increase in the threshold above which a provision statement, rather than an affidavit, is required to be filed – this will now apply to estates with a valuation of less than $1,00,000 rather than $750,000;
  • introduction of a requirement for the parties to attend at the first directions hearing unless they are otherwise advised by the court;
  • in some circumstances, where position statements or affidavits result in the judge hearing oral evidence, the costs of preparing and responding to position statements and affidavits may be ordered separately to the costs of the overall proceedings;
  • an increase in the threshold below which the court may refer the proceeding to mediation before a judge or a Specified Court Officer, from estates under $750,000 to estates under $1,000,000;
  • communication about proceedings in the list can now be made to the Testator’s Family Maintenance Coordinator via email: tfm@supcourt.vic.gov.au.

Links in the commentary in the By Lawyers Family Provision Claims (VIC) publication have been updated to the new version of the practice note.

Franchise disclosure – FED

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New franchise disclosure requirements apply from 1 April 2022.

A free online franchise disclosure register has been established. The new Part 5A to the Franchising Code of Conduct requires franchisors to upload key franchise systems data. This is intended to allow prospective franchisees to make more informed decisions.

Franchisors have until 14 November 2022 to supply the information. The particulars the franchisor is required to disclose include:

The obligation for franchise disclosure is ongoing. Franchisors must annually publish updated disclosure documents within four months of the end of their financial year.

Franchise disclosure data must be uploaded for at least 14 days before a franchisor can enter into a franchise agreement. Fines of up to 600 penalty units apply for non-compliance.

The By Lawyers commentary on Franchises has been updated. This useful resource can found in the Reference materials folder on the matter plans for both the Sale and Purchase of Business. This includes updated links to the new regulation clauses.

Enforcement – NSW

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The By Lawyers Enforcement (NSW) publication has been extensively reviewed and expanded.

Part of the individual civil litigation publications for each court, the Enforcement guide deals with enforcing judgments and orders in civil matters in the Local Court, the District Court and the Supreme Court. It is a stand-alone publication, designed to assist practitioners who are advising and representing clients that seek to recover or resist a judgment debt or other order, whether or not the practitioner acted for the client in the substantive matter.

The commentaries have been substantially enhanced. New precedents provided on the matter plan include:

  • File cover sheet
  • Retainer instructions
  • Costs agreement and disclosure document
  • Initial letter to client
  • Letter of demand
  • To do list

The commentaries and precedents cover all manner of enforcement procedures, for all levels of courts, from examination and attachment to various warrants and writs.

Related By Lawyers guides include Insolvency and 101 Subpoena Answers.

Strata schemes – NSW

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Amendments to the Strata Schemes Management Act 2015 have commenced. They make permanent the previous COVID-related changes which permit procedural and service requirements to be met electronically.

Section 263 as amended allows owners corporations and strata managers to serve documents on owners and occupiers in strata schemes via electronic transmission.

The seal of an owners corporation can be kept and affixed electronically. The regulations can prescribe the requirements for storing the seal in electronic form, affixing the seal, and record keeping.

Owners corporations and strata committees are able to meet and vote in ways other than by physical attendance. The amendments enable the regulations to govern how voting is conducted, voting procedures and reasonable steps taken to allow participation and voting at meetings.

The amending Act provides for these arrangements to be reviewed after 18 months to assess whether the amendments assist strata schemes to operate effectively and efficiently.

The By Lawyers 1001 Conveyancing Answers publication been amended to reflect these changes, with updated links to the new legislative sections.

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