Can you dispute a Will?

Do you consider you should have received an inheritance or were treated unfairly in a will?

If so, you may be entitled to make a claim against the estate under the Succession Act 1981 (QLD).

Under the Act, the following categories of “eligible persons” are entitled to challenge a will and seek further provision from the Estate:

  • A Husband or Wife of the deceased person;
  • A de facto spouse of the deceased person provided that person was living together as a couple on a genuine domestic basis for a continuous period of at least 2 years as at the date of the deceased person’s death;
  • A child of the deceased person (including an adopted child or step-child);
  • A former spouse of the deceased person. For instance, a separated spouse who is not yet divorced and was continuing to receive maintenance from the deceased person; or
  • A person who was wholly or substantially maintained by the deceased person, who was a parent of the deceased or a parent of a child under 18 years of the deceased person or a person under 18 years of age.

In Queensland there are time limitations in which an eligible person may challenge a will:

  • An eligible person has an obligation to notify the Executor of their intentions to challenge the will within 6 months from the date of death;
  • If the matter cannot be resolved through negotiations, then the eligible person must file and serve court proceedings on the Executor within 9 months from the date of death;
  • If the eligible person does not comply within those time limits, then they may be prevented from contesting the Estate without first obtaining the Court’s permission to institute legal proceedings, which is very difficult to obtain and only granted in exceptional circumstances.

We are offering a 10% discount on our professional fees for new clients during December 2018. Call us now on (07) 3278 1888 for a FREE no obligation quote and initial advice.

What should I do if my Builder goes into liquidation?

You might find yourself in a situation where you have engaged a builder to carry out work at your home, but before the work has even begun or is completed the builder goes into liquidation.  You have no idea what you should do.

Here are a few simple steps for you to consider………

Seek Legal Advice

To protect your interests, and BEFORE taking any steps you should obtain legal advice as to your options.

Make contact with the Liquidator

The Liquidator may be able to assist you in some cases in advising possible options.

QBCC’s Dispute Resolution Process

For residential construction work you may be able to resolve your complaint via the Queensland Building and Construction Commission resolution process.

Assistance under the Queensland Home Warranty Scheme

If you are not able to satisfactorily resolve your complaint under the QBCC’s resolution process, you may be eligible for assistance under the warranty scheme.

As part of the building process your builder should have arranged insurance for the construction for which you may be able to lodge a claim.

Strict Time Limits

These apply to some claims so make sure you do not delay in seeking advice otherwise your claim may be prejudiced.

Hogan Stanton Lawyers have been successful in obtaining satisfactory outcomes for clients who find themselves in this unfortunate situation.

How should I prepare for my first appointment with my Solicitor to discuss property settlement?

The weeks and months after a separation has occurred can be very stressful and may leave you unsure where to turn. The solicitors at Hogan Stanton Lawyers are here to help you with the crucial next steps.

Once you have decided that you want to speak to us for advice it can be difficult to know how you should prepare for that first meeting so that you get the most out of your initial appointment and we have all of the information available to advise you.

When attending an initial appointment with Hogan Stanton Lawyers the first questions we will ask you are the key dates of the relationship including the date you started living together, the date you were married (if applicable), the date you separated and crucially if you were married and are now divorced, the date the Divorce Order became effective. This is important because we will need to identify the time limit for filing an Application for Consent Orders or an Initiating Application with the Courts.

We will also need to know if there are any children of the relationship and, if so, their full names, date of birth, current age and who they live with / what arrangements have been made for both parents to spend time with the children.

We will then run through the history of the relationship requesting information which includes but is not limited to:

  1. Both parties assets at the commencement of the relationship;
  2. Both parties employment histories, including periods of unemployment and maternity or parental leave and salaries (if known);
  3. Details of any properties purchased during the relationship including how the deposit and stamp duty was paid and how the balance of the purchase price was paid;
  4. All assets including superannuation, currently owned by the parties either individually / jointly / through businesses and / or trusts. It is important to identify as many of those assets as you can and to try and estimate a value for them or obtain a Valuation;
  5. All liabilities currently owed by the parties individually / jointly / through businesses and / or trusts;
  6. Both parties’ non-financial contributions which includes your individual roles caring for the children, home maintenance and care and homemaker duties;
  7. Whether there have been any windfalls during the relationship including inheritances, redundancies, TPD payouts, personal injury compensation payouts, lotto winnings etc.;
  8. Both party’s current health, living arrangements and employment.

We will then explain to you about how the Court will determine how the asset pool should be divided taking into account the length of the relationship, financial and non-financial contributions and each parties future needs.

We will also explain how the matter can be finalised by either filing an Application for Consent Orders in the Family Court of Australia or an Initiating Application in the Family Court of Australia or Federal Circuit Court of Australia depending upon your individual circumstances and whether or not an agreement has or can be agreed.

It may be possible to provide you with an initial estimate of how the pool could be divided by the Courts, but it is likely that we will need both parties to provide their full and frank financial disclosure before confirming that advice.

Before you attend your appointment with us you should have a think about the answers to the above questions so that you can provide us with the information we will require.

It may also be helpful to write down your answers and also to print out copies of your financial statements etc. so that you have these to hand at your initial appointment. If you own property either on your own / jointly / through businesses and / or trusts you should consider how much you think the property would be valued at and what you owe in relation to each item.

If you are looking for family law advice about financial/property and / or children’s issues please give Hogan Stanton Lawyers a call to schedule an appointment at your earliest convenience.

Executor’s Commission

Acting as an Executor / Personal Representative for a Deceased Estate is frequently involved and time consuming.

A lot of people don’t know that under section 68 of the Succession Act “the Court may authorise the payment of such remuneration or commission to the personal representative for his or her services as personal representative as it thinks fit, and may attach such conditions to the payment thereof as it thinks fit.”

It is possible when preparing a Will to make an allowance for the Executor(s) to be paid commission as a percentage of the capital and income of the Estate. However, in our experience it is not common for an Executor’s commission clause to be included.

This does not mean that you as an Executor of the Estate will not be entitled to Executor’s commission, but it does mean that you either need the consent of any other Executors and the Beneficiaries or to apply to the Supreme Court for the Court to determine if you are entitled to commission and, if so, how much as a percentage of the capital and / or income of the Estate.

The potential amount which you could receive for Executor’s commission is calculated based upon your “pain and trouble”. There have been a number of cases where Executor’s have applied for Executors commission and where it has been found that they are entitled to the commission. The percentage amount has varied from as little as 1.5% on the capital of the Estate to 5% on the income of the Estate.

If an agreement can be reached about the payment of Executor’s commission this can be finalised by a Deed which all Executors and Beneficiaries sign to confirm that they agree to you receiving Executor’s commission from the Estate.

It can be beneficial to the Estate to consider and agree on a proposal for you to be paid Executor’s commission from the income and capital of the Estate because the costs of an application by the Executors to the Supreme Court are significant and are likely to be recoverable from the Estate itself.

Once the Deed has been signed or an Order made by the Supreme Court, the payment of Executor’s commission will be made first before a partial or final distribution of the Estate occurs.

If you are acting as an Executor and wish to apply for Executor’s commission, Hogan Stanton Lawyers will consider the works you have undertaken as an Executor and provide you with advice as to your potential entitlements to commission. We can prepare a letter to the Executors and Beneficiaries setting out a proposal and, if an agreement is reached, prepare a Deed for the parties to sign.

Alternatively, if no agreement can be reached, we can prepare the application to the Supreme Court for an Order that you receive Executor’s commission for your role as an Executor.

Please note the payment of or an entitlement to Executor’s commission is not the same as being reimbursed for your expenses as an Executor, which you are entitled to provided you can produce evidence of payment of those expenses.