Carers making claims on clients’ wills prompts call for scrutiny of estate law

wills-estates-dementiaSOME carers are ripping off the very people they are supposed to look after by demanding money be left to them in wills, an estate lawyer has revealed.

One of Queensland’s leading estate lawyers, John de Groot, urged debate about whether existing laws were good enough to protect the ageing population.

Mr de Groot said he had seen several cases where carers argued they had been a de facto of the deceased – to the surprise of families – and should receive some of their estate.

“It’s become more of a prevalent issue because of the ageing population,” Mr de Groot told The Sunday Mail.

“What we are finding is that there are some cases where carers say they were in relationships with the deceased.

“Wills are getting challenged in favour of the carer by the testator, who are completely wiping family either in full or by a generous amount.”

He said some carers had also blackmailed their elderly or disabled clients, who did not want to leave their houses and go to nursing homes.

“They basically say, ‘you better leave me something to make it worth my while (to stay)’,” he said.

Mr de Groot said the community needed to become extra vigilant to protect its most vulnerable.

“As a community we have to look at it and ask, ‘does the existing law suit?’ ”

The Courier-Mail yesterday revealed more family members were making claims on estates, and were willing to air the family’s private business and secrets to bolster their chances in court.

However, there also have been cases where carers were bequeathed a large piece of an estate.

Barrister and accredited specialist in estate law Caite Brewer said there were various ways to challenge the validity of a will.

The most common was to argue that the testator lacked the capacity at the time they made the will because they had advanced dementia or due to the effect of medication, Ms Brewer said.

It can also be argued that a testator was unduly influenced by someone else to make their will, or they did not know and approve the will’s contents.

In Queensland, a spouse, de facto, child, adult, step children and some financial dependents have a right to make a claim for family provision on an estate.

In 2004, the Law Reform Commission recommended the laws be changed to limit the eligibility of adult children who made claims on their parents’ estate. Children and dependent adult children would still be eligible under the recommendation.

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Estates Lost as Adult Children Fight over Inheritances

CLAIMS RISE: Supreme Court Justice and Queensland Law Reform Commission chair Roslyn Atkinson

Supreme Court Justice Roslyn Atkinson

ADULT children are demanding a greater share of their parents’ estates and are eating into assets to fight for more money.

Siblings and other family members are squabbling among themselves for more cash and property, airing secrets and other private information to bolster their chances in court.

Current and former judges believe succession laws could work better and point to a Law Reform Commission recommendation that would limit family provision claims made by non-dependent adult children.

The Public Trustee, the judiciary and lawyers say the number of family members asking for a bigger slice of the family estate is increasing.

More blended families, the “it’s not fair” factor and greater assets, such as property and superannuation, are contributing to claims.

Charities, caught in the middle of family wars and often losing money bequested to them, are now fighting back.

But the cost of mediation is eating into estates.

Barrister and accredited specialist in estate law Caite Brewer said some people were mortgaging their homes to help pay for claims.

Supreme Court Justice and Queensland Law Reform Commission’s chairwoman Roslyn Atkinson said the 2004 Law Reform Recommendation would limit the circumstances in which adult children could apply for family provision in Queensland.

ADULT children are flouting their parents’ final wishes, chewing up inheritances in legal fees as they fight for more money, and legal experts say it’s time to change the rules.

“I think it’s undesirable if people are making claims on people’s estates where they have no need and anecdotally from my colleagues and from people at the bar the number of claims does seem to be increasing,” Justice Atkinson toldThe Courier-Mail.

The booming area of estate law has also identified conflicts of interest in the system, with some solicitors appointed executors of estates, then appointing themselves as the lawyer for the executor and racking up hours of work that can be unnecessary.

Queensland Legal Services Commissioner John Briton said the issue was concerning.

Lawyers, who did not want to be named, said some firms were acting unscrupulously, and taking on no-win-no-fee clients, wrongly believing they would be paid from the estate whether they win or lose.

A spokeswoman for Attorney-General Jarrod Bleijie said he was “open to considering suggestions for improvement to the law in this area if it is considered to be operating unfairly” but it was not a priority.

In Queensland, a spouse, de facto, child, adult child, step children and some financial dependents have a right to apply for provision. Courts also consider the need of any application.

Justice Atkinson said statistics on the number of people who made successful claims for family provision were not known because the majority of cases settled after mediation.

“The wills that tend to be the subject of these claims are the ones where the estate is not left to the children equally or nothing is left to the children at all or, in blended families, something is left to one set of children but not the other set.”

One of Queensland’s best known estate lawyers, John de Groot, said there were circumstances of mean-spirited parents who left their adult children meagre offerings, even if they cared for their parents until death or worked for little on family farms for decades.

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Coast mum given six years’ jail for $2m Centrelink fraud

Judy Lorbek outside a Brisbane court at her last appearance.

Judy Lorbek outside a Brisbane court

A $2 million spending budget fell into a Sunshine Coast mum’s lap because a child support worker typed the date into the payment field on her computer.

Judy Lorbek phoned the Human Services Department last year to request an emergency $2900 child support payment.

The Child Support Agency staff member on the other end of the phone entered the date 02-02-2012 in the wrong field which resulted in $2,022,012 ending up in the 47-year-old’s bank account.

The cash-strapped mother of three paid off the mortgage on her Nambour home, booked in home renovations and took a contract out on a property in NSW.

Crown prosecutor Aimee Aisthorpe told Brisbane District Court on Friday that Lorbek then went on a spending spree – shouting her and her children on expensive holidays to the Gold Coast and Sydney.

She said Lorbek made 280 transactions as she lived a “profligate” lifestyle – spending money on travel, entertainment, beauty treatments, cinema trips, clothes and fashion accessories.

Lorbek had also gambled a chunk of the money away in Sydney and on the Gold and Sunshine coasts, losing $10,000 in one go at an RSL club.

She withdrew $130,000 through eftpos and $120,000 in cash in the month before authorities realised their mistake.

Lorbek withdrew the mistakenly transferred money immediately and had opened a trust account and eight other bank accounts.

Just more than $1.5 million has been recovered with $432,118 outstanding.

Ms Aisthorpe said the Commonwealth expected to recover between $350,000 and $400,000 selling Lorbek’s Nambour home.

Lorbek pleaded guilty to fraud when her case was transferred to this higher court.

The Crown has asked for her to serve two years of a six-year jail term.

Lorbek’s defence has asked for five years jail and to serve less than a third of the sentence.

Despite searching more than 300 cases, neither party were able to find comparable circumstances.

Defence barrister Michael McMillan said his client had always been “truly sorry” for stealing the money.

He said Lorbek did not oppose any confiscation of assets associated with her crime, including her Nambour home where she had raised her family since 2001.

Mr McMillan said a psychologist found his client was unlikely to reoffend in this way again.

He said Lorbek had received social security benefits since 1996 but only “plucked up courage” to complain about child support payments in 2009.

Judge Gary Long sentenced Lorbek to six years’ jail with a non-parole period of 18 months. She was ordered to pay the Commonwealth back $432,000.

Lorbek served 45 days in custody before she was released on bail.

Shock pre-nup court decision

pre-nup-non-bindingA FATHER of two from Balgowlah has been awarded up to $800,000 in damages after he successfully sued his lawyers for negligence claiming a pre-nup they created was useless in shielding his assets from a divorce.

In a Supreme Court decision handed down today, Daniel Schacht, won the case against his former lawyers Bruce Lockhart Thompson and Dennis Michael Staunton, trading as Staunton & Thompson Lawyers.

The pre-nup was drawn up by Andrew Corish, who worked for the firm in January 2002. Mr Corish was consulted a second time about the pre-nup in March 2004 after Mr Schacht and his wife Claudia Dieziger bought the Balgowlah home, the court heard.

The pre-nup was altered, to allow Mr Schacht to give his wife a 15 per cent interest in the property.

When Mr Schacht divorced Ms Dieziger five years later he found out the pre-nup was worthless.

The pre-nup was drafted to give Ms Dieziger a cash payment for each child she had. She had two children during the marriage.

As part of their divorce a Federal Magistrate found the pre-nup was “not binding” since it didn’t comply with the Family Law Act 1975.

Mr Schacht ended up having to pay his wife $496,000 more in a property settlement following his divorce than he had originally agreed to pay in the pre-nup.

He sued his former lawyers, Staunton & Thompson, claiming they should pay him damages for the loss and damage caused by the worthless pre-nup.

Together with interest and the legal costs from a Family Court divorce case, Mr Schacht claims he is owed $800,000.

Mr Schacht’s lawyer in the successful damages suit, James Riley, principal at Riley Gray-Spencer Lawyers said the decision was an important one for couples considering marriage.

“They need to go to a family law specialist and ensure that the specialist drafts an agreement in accordance with the Act,” Mr Riley said.

Family law experts say pre-nups are fraught with danger for solicitors who draft them as the legislation demands lawyers meticulously follow a set of precise steps.

Supreme Court judge Peter Johnson found that the alterations to the pre-nup in 2004 had meant it was not binding.

He accepted the evidence given by Family Law expert Duncan Holmes who told the court that a “prudent” Family Law solicitor would have not just amended the pre-nup in 2004 but would have scrapped the 2002 version and started again.

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What to be aware of before entering a Pre-nup

PrenupAgainst all odds you have found each other, you are in love and know without a shadow of a doubt that you want to spend the rest of your lives together.

The proposal was perfect, the ring made all your friends “oooh and ahhh” and all you can think about is planning the big day –  until you are asked the other question … “Honey, will you sign my pre-nup?”

Today, about one in 10 Australian couples opt for a pre-nuptial agreement before saying “I do”.

Maybe that’s not surprising considering 30 per cent of all first marriages end in divorce according to the Australian Bureau of Statistics.

So what should you do and what you should know if your partner asks you to sign a pre-nup? What are your legal rights and what does it mean for your future?

In Australia a pre-nup is simply a binding financial agreement that sits under the Family Law Act.  It’s a legal contract that can be entered into by married couples, same-sex couples and those in de facto relationships.

It is an agreement between both parties that requires full disclosure of their financial position and assets at the time, and is designed to provide certainty to both parties before entering into marriage or a long-term relationship.

Paul Hunt from e.law Legal Services lists the top five things you should be aware of before entering into one.

1. There must not be any coercion or pressure from the asking party or their families. It is illegal to force any individual into a pre-nup under duress.  A pre-nup must be entered into willingly by both parties.

2. Each party must seek independent legal representation and advice. A pre-nup cannot be created for a couple by the same legal practitioner.

3. A pre-nup must be drafted by an Australian lawyer. Any agreements designed by legal professionals who are not registered practitioners in Australia will be inadmissible under the Australian Family Law Act.

4. A pre-nup must be fair and reasonable for both parties and both should feel as though they can specify certain clauses, such as future children, pre-nup validity after a certain number of years of marriage or being together and what each party contributes during the marriage or relationship.

5. If at any stage the process doesn’t feel right, don’t do it!

It’s going to be easier if both parties have communicated in-depth about what they feel is fair and reasonable.

A trip to the lawyer can be an expensive exercise. If the party being asked to sign the pre-nup is not in a financial position to pay for these negotiations, they have every right to ask the other party to cover their costs.

Honest discussions should take place about the emotional impact of signing an agreement like this. For many people, the idea of being asked to sign a pre-nup raises questions of loyalty and trust.

You have every reason to ask why, and deserve to be provided with a valid answer that eradicates all doubt.

Hunt adds: “Before seeing a lawyer both parties should agree on what they are and aren’t comfortable with, which ultimately will keep down the costs if both have agreed on what they think is fair as opposed to the lawyers arguing it out.”

This raises a valid issue … communication, which is the key to any long and happy relationship or marriage.

After all, if you can’t openly communicate before agreeing to a long-term commitment or marriage, then it isn’t really going to work.

Apart from the emotional and financial implications of setting them up, there are questions surrounding the validity of pre-nups.

Says  Hunt: “While a pre-nup is a binding agreement that is enforceable, it can be undone. While that can be a costly exercise, a pre-nup is really a planned process of dealing with financial issues and assets if there is a breakdown, in the hope of avoiding costly court battles in the future.”

Is a pre-nup just a necessity of modern life or a passion killer?

Does it undermine the romantic notion that love will conquer all or is it just a reality that is required in a life where there is so much uncertainty?

If we fail to plan, are we planning to fail?

Gay adoption laws pass Lower House

baby-handTasmania’s Lower House has passed laws making it easier for same sex couples to adopt.

The amendment to the Adoption Act allows gay men and women to adopt a child who is not a relative.

The change passed with the support of 18 members, including Liberal MP’s Peter Gutwein, Jeremy Rockliff, Matthew Groom and Adam Brooks.

The Greens Leader Nick McKim told Parliament it raises questions about why the Opposition did not allow a conscience vote on gay marriage last year.

“What we have here is a double standard which exposes the Liberal Party’s position on marriage equality as being driven by politics, not doing what is right,” he said.

Liberal MP Rene Hidding says the Opposition applied the same party room process to both bills.

“Precisely the same took place on this debate in the party room as took place on the previous, on the marriage one and to stand up here, to whinge and whine and to reflect on a previous vote on legislation that’s not before this house today just shows who’s really being political about this,” he said.

Gay rights activists have welcomed the bill, which will now go to the Upper House.

Cost of raising a child

Cost-of-Raising-a-ChildHOBART has been ranked as Australia’s fourth most affordable city in which to raise children.

The cost of raising a first child to the age of 18 in Hobart is just over a quarter of a million dollars, or $268,629, according to the only state-by-state breakdown of the cost of kids in Australia.

This was below the national average of $276,445.

Childcare is by far the biggest cost for parents.

Full-time working parents in Hobart will shell out $85,795 for childcare, even taking into account subsidies.

Food is the second-biggest expense.A healthy diet, including some takeaway food but no restaurant meals adds up to $57,956.

Housing costs are also a big item, costing $49,608 extra to move to a house with one more bedroom.

The research, by associate professor Paul Henman of the School of Social Work and Human Services at the University of Queensland, uses a “budget standards” approach.

Dr Henman’s work has been used by the Federal Government to set child support payments.

Rather than tracking what parents actually spend on their children, it measures the changing cost of providing a “modest but adequate” upbringing for a child representing “middle Australia”.

“There is no fixed or absolute cost of a child,” Dr Henman told the Sunday Tasmanian.

“Costs of children estimates using this approach measure what is needed to be spent to meet community standards, rather than what can be afforded.”

Generally, second and third children cost less, Dr Henman said.

“The cost of the first child is often greater than that for each subsequent child. This is due to economies of scale resulting from hand-me-downs and shared infrastructure.”

The survey does not include spending on private school fees, private health insurance, the lost income of parents from not working, or costs incurred after age 18, like university or paying for weddings.

Tasmanian mum Amanda Crane said $260,000 to raise a child was not a shock.

“I’m not surprised it’s more than a quarter of a million dollars I’d easily believe that. I would have actually expected the cost be even more,” the hospitality worker said yesterday.

Her partner, David Goodfellow, is a fly-in-fly-out shipmaster and said the cost of basic everyday items like clothing and food also kept costs up.

They agreed education will be the biggest cost in raising children with the increased reliance on technology.

“Whether you like it or not, your child needs to have access to a computer. And it doesn’t stop there, kids expect more and more to have gadgets like iPods and iPads too,” Ms Crane said.

“We would like to send them to private schools, and they will need to board, which is extra cost too.”

Dr Henman says in reality, parents are spending more on their kids because they can.

“The cost of raising a child increases with household income. Higher-income households have greater living standards, which children share.”

Even so, the basic costs add up.

In their first 18 years, raising a child in Hobart will cost $6739 in trips to the dentist and pharmaceutical drugs.

Toys, books and a one-week domestic holiday each year will cost $15,355.

Even personal-care items such as shampoo, toothbrushes and haircuts add up to $6447.

Having a child adds an extra $7404 to electricity and gas bills.

Petrol costs and having to upgrade to a bigger car can also add up to $3939.

Female binge drinking leading to court hangover

Heather-McKinnon

Heather McKinnon

A growing trend of alcohol abuse by Australian women is behind an increase in divorces and other family disputes before the courts, the head of Slater & Gordon’s family law practice has claimed.

Heather McKinnon told Lawyers Weekly that she has witnessed a shift in the drinking habits of women in Australia, which she believes is responsible for a growing number of child custody and divorce cases in the Family Court.

Research released in February by the National Drug and Alcohol Research Centre (NDARC) at the University of NSW revealed that women are drinking earlier and more are developing symptoms of alcohol abuse. The study found that the number of Australian women aged 20 to 29 with symptoms of alcohol abuse has increased by 27,000 in 10 years, and males and females now typically have their first drink at the same age (just over 14), compared to female baby boomers who had their first drink at 17.

McKinnon said a rise in binge drinking by young women is particularly worrying, as it often continues into marriages and motherhood and “rears its head regularly in the family court”.

“More women go from high school binge drinking and then enter relationships and start having kids but have normalised a high level of alcohol abuse,” she said, adding that she currently has four cases on the go that involve mothers who are alcohol dependent.

McKinnon said there were “a lot of home truths” in comments made by her English counterpart, Amanda McAlister, who told the Daily Mail this week that the number of divorces blamed on women’s drinking habits has risen by 70 per cent in five years.

“One of the biggest things we’ve seen [in Australia] over the past five years is the number of women who are alcohol dependent,” ­said McKinnon.

“Traditionally, the only time you saw mums lose kids because of alcohol was really serious cases where the child welfare authority intervened … but now it is increasingly common in the family court for dad’s to apply for children to live with them because mum is alcohol dependent.”

Domestic violence shelter offered for pets

safe-beds-for-petsTasmania’s RSPCA has started looking after the pets of families affected by domestic violence.

The animal welfare body has adopted a program allowing organisations which help domestic violence victims to arrange temporary accommodation.

They will arrange shelter for up to two weeks or longer.

The RSPCA’s Lorraine Hamilton says it is common for pets to be abused when they are left behind in a violent home.

She says the service will offer some peace of mind to owners.

“We know of cases where animals have been used almost as a pawn in the middle, if you like, where one partner might threaten to harm the animal really just to get at the other partner,” she said.

“They certainly can’t fend for themselves so we need to offer that help to them.”

The state’s three shelters have adopted the New South Wales program called Safe Beds for Pets.