Welcome to the digital age of will making

Katie WorsnopHead of Estate Litigation and Senior Associate

 

Follow the link below to read the article.

CASE NOTE: Lemon v Mead

Heir tight. Issue 1 2018/19

Same-sex marriage – wills and estate planning

The recent amendment to the definition of marriage, which legalises same-sex marriage, has consequences for the validity of wills and for estate planning.

Contributing to better lawyering: In conversation with Margot de Groot

It’s been said that lawyers are much like firefighters – called to help on what might be the worst days of a client’s life. Once the fires’ doused and business and/or personal crises return to normality, there is little ongoing need for a lawyer in one’s day-to-day life beyond the provision of good counsel and preventative advice.
For lawyers, regardless of their area of practice, this may mean that their work life assumes a surreal state of constant crisis by proxy, which can bear detrimental impacts upon their health and mental wellbeing. Insights spoke to Margot de Groot, Director of de Groots wills and estates lawyers, on the initiatives, ranging from a wellness room to rest and recuperate to genuinely flexible work practices that promote a happy, productive and egalitarian workplace, and in turn delivers better outcomes for clients.

“The philosophies which underpin our firm’s culture are driven by our values,” said Margot. “First and foremost, we aim to see everything through our clients’ eyes, work as a team and pursue excellence in all we do.”

This approach has seen de Groots quietly pioneer many workplace practices. When fitting out their offices in 2004, the firm worked closely with architects to create an open plan office at a time when this design style was in its infancy.

“We wanted to achieve a ‘one firm / one team’ approach rather than a ‘them and us’ approach,” explained Margot. “We wanted every member of the firm to enjoy the same style of accommodation and access to light and views. By congregating everyone together, we were also able to take advantage of the ease of access to each other to collaborate more easily in the work we do.  We have sought to have a collegiate approach.”

Flexible work arrangements were also embraced early on by the firm, including remote access IT and in 2011, cloud computing.

“Some of our staff are raising young children, some are studying and some live long distances from our office. Whatever the reason, flexible work arrangements have meant staff can work from home for part of the week, or work less days in the week. Our main focus is on achieving work outcomes, but not at the cost of good health and excessive time away from family and friends,” said Margot.

“We also converted one of our offices to a ‘wellness room’ to provide staff with a space to take time out to relax during the day or do some stretching and yoga. It’s available for everyone to use as they wish. We have mindfulness sessions each morning which are attended by about a third of our staff.”

The firm also encourages staff to adopt the Alexander Technique to assist with good posture and provides a standing computer station for typing.

“It’s our responsibility to provide a healthy work environment to support staff to work effectively and maintain their physical and mental wellbeing,” said Margot. “We’ve had a low turnover of staff over the years and most speak well of the various health and wellbeing initiatives we’ve adopted at the firm.  We are a signatory to the Psychological Wellbeing: Best Practice Guidelines for the Legal Profession developed by the Tristan Jepson Memorial Foundation. Those guidelines seek to promote mental health in the legal workplace.”

While a proactive, positive approach to promoting lawyer wellbeing has paid off for the firm, Margot noted that finding the best initiatives to adopt could, at times, be challenging.

“There is no one size fits all. Each business has its unique features and distinct culture. I find that attending conferences on business management and reading about what is happening in other industries is very helpful. For example, Richard Susskind’s ‘Tomorrow’s Lawyers’ and ‘The Future of the Professions’ has pushed us to re-think how we do everything, particularly in view of the disruptors affecting the legal profession.”

However, Margot noted, the best ideas often come from within the business.

“It’s important to understand the DNA of your business and how to preserve and enrich it.

“If the fundamentals of the business are sound and clients and staff are valued, then there should be momentum for constant improvement, with a consequent uplift in performance,” said Margot.

This article was originally published by the College of Law, 05 July, 2017.

The old ones are the best ones.

This article was originally published in the STEP Journal Volume 25/Issue 2.

I was recently asked to address a group of students at a university college on the approaches that have sustained me over the 30-plus years I have been practising law, which have largely been spent in wills and estates.

I observed that it has been a period of great and rapid change, highlighting the fact that Google has been part of our landscape for only the past 18 years. When I commenced practice, I had a secretary who used a manual typewriter, and now our firm utilises cloud-based computing and outsources much of the document preparation required.

Technology has become a critical component for every practitioner, an issue referred to by American scholar Tyler Cowen in his 2013 work Average is Over. Cowen suggests that a new social compact is emerging in which partnerships between people and computers will define success, or at least determine those who will be capable of rising to the top.

Approaches that have sustained me

While my remarks were directed to students about to commence their professional careers, for me, they have an element of timelessness, and I hope that some of them, at least, will resonate with readers of the STEP Journal. They are:

  1. ‘Keep calm and carry on’

This is on a poster prominently displayed in our office. To me, it says that there will always be a solution to every problem, although it may not be a perfect one. The important thing is to maintain a sense of calm and put energy into finding that solution. The other side of the coin is having the courage to make hard decisions, such as giving up other good-quality work to follow a specialist path.

  1. Maintain a disciplined approach

There are many distractions in professional life and life generally. Keep focusing on what needs to be done, whether it is dictating a file note immediately after a telephone conversation with a client, or making time to actively participate in professional bodies, such as your law society and STEP.

  1. Have good mentors in your life

You are fortunate if you can engage the support and influence of people whose judgment and skills you can rely on to guide and encourage you.

  1. Be a student for life

Develop knowledge and skills with the evolving needs of your career. For me, this has involved studying at Harvard Business School, international study tours and attending specialist conferences. There is a buoyancy and excitement in continuing education and skills development.

However, although the acquisition of technical skills is vital, the way you deliver those skills is every bit as important.

A recent edition of Australian publication Lawyers Weekly featured an article about a national law firm that has established a committee of young lawyers to identify the issues they struggle with, such as talking about fees and communicating effectively with clients. They then advised the firm’s senior management of the training they need to develop those skills, rather than senior management simply imposing what they thought was needed.

  1. Care about what you do

The extent to which you care about your clients and colleagues, and how you interact with them, significantly impacts your career.

A study undertaken in the US many years ago sought to identify what distinguishes a highly competent medical student from an average or poor one. High school graduation results, grades achieved at medical school, years in practice, age, gender and the medical school attended were all factors looked at, but no statistically significant correlation was found. The researchers were disappointed, but, when their work was reviewed, one feature of highly competent medical students suddenly stood out: they cared to be good at what they did. So, at the base of great competence, the researchers found great care. This aligns with the observation that great knowledge normally arises from great love of the subject.

I commend the approaches I’ve outlined above. To the degree to which I have applied them, they have worked for me. That said, a famous writer has observed that ‘We are all capable of more than we do.’ So, of course, I’m still developing in following these approaches.

Margot de Groot, Director.

 

The STEP Journal is the official magazine of the Society of Trust and Estate Practitioners. The Journal provides news, reviews, opinion and technical analysis on trends and issues facing trust and estate practitioners internationally. Each issue is planned by a panel of industry experts. For more information, visit the STEP website.

Pre-nups popularity picks up

As you may be aware, Family Law legislation was amended in December 2000 to allow parties to a marriage or anticipated marriage to enter into binding financial agreements. These agreements determine how property will be distributed between the parties in the event of a marriage break up.

The legislation is most particular on the formalities and content of these agreements but if they are prepared in strict compliance with the legislation, they provide peace of mind – knowing that potentially acrimonious, expensive and time consuming fights over property will be avoided.

Although initial enquiries about these agreements were fewer than we had expected, we are now finding an upsurge in their popularity. They have become standard for many people embarking on a second marriage – especially those who have experienced property settlement litigation in the Family Court.

Where parents have significant estates, there is a growing expectation that children will agree to enter into these agreements to ensure that assets they inherit from their parents will not be the subject of a claim by their spouse.

Property rights also arise out of de facto relationships of at least 2 years duration, including same sex relationships. Here also, it has been possible to enter into a binding agreement (known as a ‘recognised agreement’) with the same benefits as a binding financial agreement under the Family Law legislation.

Again, these ‘recognised agreements’ are becoming popular as more de facto couples are litigating over property matters after the break up of their relationships.

These documents can be an important part of your estate planning and very cost effective for the peace of mind and protection they may provide.

Dr John de Groot
Special Counsel

Protecting Important Documents When A Crisis Hits

The bushfires in Victoria and the floods in Queensland and New South Wales have resulted in a terrible loss of life and property – raising the issue of losing and replacing important documents.

Reports have emerged of the difficulties some of the victims of the disasters have experienced when seeking emergency benefits. They have no documents to establish their identity as many had to flee with nothing more than the clothes they wore.

The destruction of family homes and businesses will mean that many people have lost original documents including wills, powers of attorney, birth and marriage certificates, driving licences and passports.

Whilst most of the documents may able to be replaced, it will take time and expense. It is a frustration which people who have experienced such devastating loss could well do without.

And, often the loss of the document is not realised until it is too late. The missing passport only comes to mind when packing for the overseas holiday or, more tragically, the destroyed will is only found to be missing after the death of the will maker. By then, it may be too late!

When a person dies and no will can be found, the law presumes that they have died “intestate” (died without a will). In that case, laws in each State determine who gets to share in the estate assets and in what proportions.

Often, the State laws can have unintended consequences. A former spouse who has separated from but remained married to the deceased person may be entitled, at law, to a share of the deceased spouse’s estate – even if they separated many years ago.

Also, the laws in each State are not the same and if someone dies intestate, the people who will share in the estate and the proportions they will get vary from State to State. Fro example, many people mistakenly believe that the surviving spouse will inherit the whole of the estate if there is no will. If the deceased person died leaving behind a spouse and children, then in Victoria, the surviving spouse is entitled to the household furnishings, $100,000.00 and one third of the rest of the estate. The children share the rest. In New South Wales, the spouse will receive the household items, $200,000 and half the rest of the estate.

These laws may lead to different people sharing in different assets in different proportions, depending on where the deceased person lived and where the assets are located.

Not only do these State to State variations cause confusion, if someone dies without a will, the appointment of a person to administer the estate and work out the entitlements of who gets to share in the estate assets leads to increased costs, delays and loss. In a will, the will maker appoints an executor to administer the estate – to protect, preserve and gather in the assets, pay the debts and other expenses and then distribute the estate assets to the beneficiaries named in the will.

But, if a business owner dies without a will, determining who can step in to run the business may take days, weeks or months to resolve especially if there is a dispute amongst the family members. By the time it is sorted out, often after court action, it may be too late – what was a valuable business is now worthless as no one had the immediate power to step in and take control.

If someone dies and the original cannot be found, there may be a copy of a will in a solicitor’s file or held by an accountant or financial advisor. In some circumstances, a copy of a will may be regarded as a valid will. However, before a court will accept a copy as a valid will, extensive evidence must be gathered to establish where the original will was stored, who had access to it and what actually happened to it prior to the will maker’s death. A court must be satisfied that the original will was inadvertently lost or destroyed and not intentionally destroyed by the will maker who wanted to cancel it.

There have been many occasions where an original will has been located in the strangest places – under floorboards, in the chook pen, in a secret concealed passage. Whilst the will maker may thought the will was safely stored, there is the risk it will never be located or destroyed. Even if the original document fortuitously is found, its authenticity may be questioned because of the way and where it is “found”. Costly court disputes usually follow to determine if it is a valid will.

For all of these reasons, it is important to think carefully as to where important original documents should be stored. Rather than keeping the original will at home (tucked away safely where no one may find it or where it may get destroyed in a flood or fire), it is much safer to keep wills in safe custody with your solicitor or in a bank vault. In some States, registers of wills are held by courts. However, most people prefer to keep the contents of their documents private and keep them with their lawyers.

Wherever the document is stored, there should be some way to trace where the documents are located. It is important that family members or the executor knows where the original will is located so it can be accessed at the appropriate time and by the appropriate people.

“Proper thoughtful planning now gives you peace of mind and ensures that your loved ones will not have to pay, financially and emotionally, later.”

Phillip McGowan
Partner

What is fair in the context of an inheritance?

Donal Griffin, a director in our Sydney office, says that people, in the context of inheritances, seem to expect to be treated “fairly”. “Fairly” is not defined anywhere but a common view is that it means equally with their family equivalent (i.e. a child equally with another child and a cousin equally with another cousin). He points out that Australian succession legislation does not offer people redress for unfair treatment. Rather, it offers people an opportunity to ventilate a claim that they have not been properly or adequately provided for.  The meaning of these words varies State by State.

The legalistic way to avoid a dispute is to have a properly executed legal agreement with appropriate independent advice and the blessing of the Court. For most families this will be too hard to agree and too expensive to make binding. Effective estate planning, in which de Groots specialises, is usually the most appropriate way to manage potential costly and damaging disputes.

Donal was quoted in the Brisbane Times recently as well as the Sydney Morning Herald article Making that windfall last