Too Bad To Stay, Too Good To Leave

The media has been reporting that couples have found the Covid-19 impact hard on their relationships.  Others might have found that there has been an improvement in some ways, because they have endured unexpected challenges together.   In Western Australia at least, we seem to be coming out the other side.

Pandemic or no pandemic, you might be unsure about whether your relationship is “good enough”. 

As family lawyers, we often see clients who did not see separation coming.  When that happens without any warning, that can be most devastating.

Other clients come for legal advice before they have separated, when they are still living “under the same roof”. In those circumstances we can help at the front end and give advice that can potentially benefit everyone involved, while our first duty is to our client.

Separating does not increase what you have to share between you.  In fact, assets can be depleted because costs which were previously shared such as mortgage payments or rent and utility bills, are now payable for two residences. However, if you can reach an “amicable” settlement you will spend the money that has to be spent to sort things out and no more.

Only you can decide if you should stay in a relationship.  Despite what is said sometimes in the media about people not regarding their marriage vows with the seriousness that they were taken in the past, our experience is that none of our clients have come to consider ending their relationship lightly. 

Usually by the time a client decides to see a lawyer they have spent time beforehand deciding that this is what they must do. 

A useful book that is readily available that a person unsure about their relationship might find useful to read (and there are others) is Too Good to Leave Too Bad to Stay by Mira Kirstenbaum.  It was published some years ago and is a little dated but many people say they have found the approach that it provides to be useful.  Reading a “self-help” book can be invaluable, but it is not a substitute for professional help about relationships.

If you are ready to take the step but still unsure, getting professional advice, concerning your relationship and also legal advice, is likely to be very much in your interests.   

At Bowen Buchbinder Vilensky a first appointment without any obligation to proceed further costs $440 including GST. 

PLEASE CONTACT

If you would like advice in this area please contact Rhonda Griffiths at [email protected] 

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Separation Under One Roof

Thanks in large part to the COVID-19 pandemic, the Western Australian economy is expected to experience a recession in the 2021 financial year.

With increased unemployment rates, and house prices falling over the last 5 years,[1] there will likely be an increasing number of newly separated couples who will have little choice financially but to remain “separated under one roof”, at least for a time.

 

Why Does the Date of Separation Matter?

The date of separation between a couple can be relevant for several reasons. 

For de facto couples, it can be the difference between the Family Court of Western Australia having, or not having, jurisdiction to make orders for property adjustment and maintenance.  For the Court to have such jurisdiction, it is generally a requirement that the de facto relationship has existed for 2 years.[2] 

It is also relevant to the limitation period for de facto couples, who generally must commence proceedings in the Family Court within 2 years after their relationship ends.[3]

For married couples, a divorce can only be granted where the marriage has irretrievably broken down.  To show that the marriage has irretrievably broken down, the parties must have separated and lived separately and apart for a continuous period of at least 12 months, immediately before filing the application for divorce.[4]

 

Separation Under One Roof

Section 49 of the Family Law Act 1975 (Cth), which applies to married couples, provides as follows:

  • The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of only one of the parties.
  • The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

 

Are We Separated?

Whether there has been a separation under one roof will be a question of fact which is decided on the facts of each case.  As with many areas of law, it is not black and white, and the circumstances of each individual relationship will be considered.

For separation to occur between a married couple, one or both spouses must form an intention to sever and not resume the marital relationship, and act on that intention.[5]

The body of case law involving separation under one roof indicates that a comparison of the state of the relationship before and after the alleged separation may be required.[6]  The following factors may be relevant (to both married and de facto couples) in such an analysis:

  1. Whether one or both of the parties communicated to each other that they considered themselves to be separated.
  2. Whether the parties have continued to share a bedroom, and the extent to which any sexual relationship has been maintained.
  3. Any change in the financial relationship between the parties, for example the closure of joint bank accounts.
  4. How and when the separation was communicated to friends and family of the parties, and whether the parties have continued to hold themselves out to be a couple.
  5. A reduction in shared activities.
  6. The extent to which the parties have continued to perform domestic chores for the benefit of the other, such as cooking, cleaning, and laundry.
  7. The reason why the parties have remained residing under the same roof (e.g. financial pressures).
  8. Whether any government departments, such as Centrelink, have been informed about the separation.

 

What Next

If you consider yourself to be separated under one roof and require legal advice as to divorce, property settlement or parenting matters, please contact Bowen Buchbinder Vilensky for an initial consultation.

 

Disclaimer:  This article is intended to provide general information only and does not constitute legal advice. The article is in summary form and we recommend you seek legal advice or other professional advice as to whether and or how the information is applicable to your circumstances.

[1] https://reiwa.com.au/uploadedfiles/public/content/the_wa_market/house-prices-2013-web.pdf

[2] Family Court Act 1997 s 205Z(1)(a)

[3] Family Court Act 1997 s 205ZB(1)

[4] Family Law Act 1975 s 48(2). See also s 50(1).

[5] Pavey & Pavey (1976) FLC ¶90-051, citing Todd & Todd (1976) FLC ¶90-008.

[6] Todd & Todd (1976) FLC ¶90-008

PLEASE CONTACT

If you would like advice in this area please contact Kori O’Meehan at [email protected] 

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My property and income have been affected by COVID-19, will this impact my Family Law matter?

Disclaimer:  This series of articles is intended to provide general information only and does not constitute legal advice. The article is in summary form and we recommend you seek legal advice or other professional advice as to whether and or how the information in applicable to your circumstances. The information in this article was current at the time of publication, however it may no longer be applicable.

 

Family Law COVID-19 FAQ’s: Part Three

 

Many industries, investments, and businesses have been negatively affected by COVID.

If your financial circumstances have significantly changed this will impact your matter.

When reaching a financial property settlement, the law requires consideration of each parties’ future needs and earning capacity.

If you are temporarily unable to work or your business is not as profitable as it once was due to COVID this may not necessarily affect your earning capacity in the future. However, it may affect your future needs if your investments, assets, or savings have been depleted as a result and will in any event impact your financial property settlement.

Can I access support and maintenance in light of COVID-19?

Other than receiving increased support through changes to your anticipated property settlement you may also have relief available to you by way of spousal maintenance or child support orders.

If you were not previously receiving any spousal maintenance or child support, but now have reduced income as a result of COVID, where your partner does not have reduced income you may be able to seek support. If you were receiving maintenance or support but it is no longer enough due to your reduced income, it may be possible to vary your maintenance or support terms, depending on the circumstances of the other party.

In the alternative, if you were already paying spousal maintenance or child support but your own income has now been reduced, you will likely be able to vary the terms of the agreement to reflect your current circumstances.

If you cannot vary terms or seek support by agreement you may need to make an application to the Court.

Family law is a complex area which requires consideration of relevant time limits, needs, and financial circumstances of each party and therefore it is always recommended that you obtain legal advice before making an application to the Court.

Please contact us at [email protected] if you have any queries in relation to the above answers or if you wish to discuss the impact of COVID-19 on your family law matter further.

Disclaimer:  This article is intended to provide general information only and does not constitute legal advice. The article is in summary form and we recommend you seek legal advice or other professional advice as to whether and or how the information in applicable to your circumstances. The information in this article was current at the time of publication, however it may no longer be applicable.

Is my child in breach of social distancing requirements at the other parent’s home?

Disclaimer:  This series of articles is intended to provide general information only and does not constitute legal advice. The article is in summary form and we recommend you seek legal advice or other professional advice as to whether and or how the information in applicable to your circumstances. The information in this article was current at the time of publication, however it may no longer be applicable.

 

Family Law COVID-19 FAQ’s: Part Two

 

Many parents have parenting plans, orders, or arrangements in place which require their child to move between their house and their partner’s house. Children moving between their respective households will not be in breach of the COVID directions.

Some parents have expressed concerns that when their child is at the other parent’s house there are more than the allowed number of people at the premises.

In relation to such gatherings the current Emergency Management Act 2005 (WA) Section 71 And 72a Closure And Restriction (Limit The Spread) Directions (No 3) defines as prohibited  a gathering of more than twenty (20) persons in a single undivided indoor space or a single undivided outdoor space that is a public place at the same time.

However, the Directions go on to list a number of exceptions which include a gathering in an indoor space or an outdoor space where everyone in the gathering is a member of the same household.

A household is further defined as two or more persons who usually reside at the same place, irrespective of whether those persons are related to each other and includes by way of the specific example that a child who usually moves between the child’s father’s home and the child’s mother’s home on a week-about basis is part of the father’s household when the child is living with the father and is part of the mother’s household when the child is living with the mother.

This means that your child will be considered part of both their parents’ households and will be exempt to the twenty (20) people gathering limit while at either parents’ house.  That is, the usual occupants of that family member’s household.  Although in theory twenty people might be gathered, most Western Australian households’ have many less than 20. 

What can I do if my usual drop off or pick up location is closed?

We understand that there are many different directions and restrictions in place which make it difficult to strictly comply with parenting plans, orders, or arrangements in the current situation.

A common example of this is when the agreed pickup and drop off location, or the location where time is to be spent, is closed.

We recommend, if it is possible, communicating with the other parent in the simplest manner, by text or email and attempting to find a solution which keeps in view the best interests of the child.

If any agreement is reached, even if it is temporary, ensure that it is in writing.

This is a very difficult time for everyone, and it is important to understand that people will have different experiences, concerns, and responses with respect to COVID. Even when acting sensibly or in the best interests of a child an agreement may not be reached, where this occurs further guidance or legal advice should be sought.

 

Travel Bans

Originally WA had in place a strict regional travel ban which meant that people were generally not able to enter a regional area from another regional area or move between regions.

From 18 May 2020 the regional travel restrictions have been eased to provide for travel within the following expanded regions:

  • Perth, Peel Region, the South West, and the Great Southern region;
  • the Mid West region, Gascoyne, and Pilbara;
  • the gold fields and Esperance region; and
  • the Kimberly.

Persons still must not move between the expanded regions, only within them.

The regional travel bans have always provided a variety of exemptions for travel between regions. The exemptions include traveling between regions if it is necessary for the person to do so for the purpose of fulfilling their obligations under a parenting plan, parenting order of a court or other parenting arrangements.

This means that where your parenting plan, order, or arrangements requires travel between regions it should continue as normal.

We recommend you keep a copy of your parenting plan, order, or arrangements with you when traveling between regions or alternatively apply for a G2G PASS. The G2G PASS is an app which allows you to apply for approval to travel regionals for your approved purpose in advance.

The WA state border remains closed and travel is not permitted into WA unless an exemption is granted.

If your parenting plan, order, or arrangements require travel interstate and this is no longer possible due to the impact of COVID (such as travel restrictions, or no availability of flights, or directions put into place by other States or Territories) you must still attempt to comply as much as reasonably possible.

We recommend having a conversation with your child’s other parent and attempting to reach an agreement, if possible. This could include increased video calls in lieu of time spent or make up time to be arranged once the restrictions have eased.

You should be careful to use your best efforts and not use COVID-19 as justification for reducing your child’s time with the other parent.

If your relationship with the other parent is strained, we recommend you obtain the assistance of lawyers to assist you in reaching an agreement and ensuring parenting plans, orders, or arrangements are complied with as much as reasonably possible

Family Law COVID-19 FAQ’s: Part One

Disclaimer:  This series of articles is intended to provide general information only and does not constitute legal advice. The article is in summary form and we recommend you seek legal advice or other professional advice as to whether and or how the information in applicable to your circumstances. The information in this article was current at the time of publication, however it may no longer be applicable.

The World Health Organization declared COVID-19 a pandemic on 11 March 2020.

On 15 March 2020, the Minister for Emergency Services declared a state of emergency in respect of the pandemic caused by COVID-19 pursuant to section 56 of the Emergency Management Act 2005 (WA).

On 23 March 2020, the Minister for Health declared a public health state of emergency in respect of COVID-19 pursuant to section 167 of the Public Health Act 2016 (WA).

Since a state of emergency has applied in WA there have been a variety of directions put into place by the government to prevent, control or abate the serious public health risk presented by COVID-19.

This is resulted in significant queries arising among Family Law clients. We have aimed to address some of these frequently asked questions here.

Will my Family Law matter still progress?

Most family law matters are able to progress as they usually would due to the fact that the Court and most law firms are continuing to operate as normal, subject to appropriate social distancing guidelines and government regulations.

Bowen Buchbinder Vilensky is open for business and our employees are fully accessible via email and telephone. We remain available to assist our clients and can arrange meetings via phone or digital meeting technology. If necessary, our offices can also be made available at the current time for critical face to face meetings.

Is the Family Court of Western Australia Still Open?

The Family Court of Western Australia remains open and continues to perform its duties.

While the Court is open, it is encouraged that only the necessary legal practitioners, parties, and support people attend Court. Further, anyone who has flu-like symptoms or has travelled overseas in the last 14 days must not enter the Court premises.

The front counter services at the Court have been temporarily suspended, however registry services are still offered. Documents can be lodged remotely via the Court Portal, post, email, or alternatively in person at the Court’s secure drop box.

All listed hearings and conferences will continue if practicable and will be conducted by telephone.

As there are a number of practical issues in running a Trial via telephone or video-link and in light of other COVID restrictions the a number of  listed Trials are being vacated. The Court does have capacity to conduct some trials electronically where suitable. Relevant factors to consider include the number of parties and witnesses, the location of the parties and witnesses, the ability of parties and witnesses to attend personally or by way of video or telephone, anticipated evidence, urgency of the matters to be determined at Trial, and whether the Trial will remain procedurally fair and adequate to enable a proper determination of the matters in issue.

Coronavirus – A note from the Directors

Given the spread of the coronavirus (“Covid-19” ) and the public health emergency that it has
created, like many other organisations, Bowen Buchbinder Vilensky (BBV) is taking active steps to
help ensure the safety, health and wellbeing of our people and clients.

To support the health and wellbeing of our people, clients and the community around us, our
professional and support staff are currently working remotely from home.

While we are working remotely, to the fullest extent possible it will be business as usual in terms of
our professional services and our client service. We are still ready, willing and able to take on new
clients. While we cannot meet you in person, we are still able to conduct consultations with video
conferencing technology. Our current platform of choice is Zoom.

We have taken steps to ensure we have the training, technology, and support in place to assist our
staff working from home for an extended period.

Our office at Level 14, 251 Adelaide Terrace, Perth is currently closed. However, please continue to
call us on (08) 9325 9644 and you will be directed to whichever member of our team you wish to
speak to in the usual way.

These are indeed challenging and uncertain times but for us at BBV it is business as usual, and we
will be doing our best to continue to provide our range of legal services.

Is your Estate Plan COVID Proof?

As the COVID-19 virus continues to spread throughout the world, people can no longer avoid considering their estate plan. The spread of this virus has completely changed the world and the way in which we live here in Australia in an unprecedented way within a matter of weeks. 

With a significant amount of uncertainty ahead of us, it is more important than ever that you ensure that your estate planning documents are up to date. 

If you already have a Will, you should review this to ensure that it reflects your current wishes. In doing so, you should also take into account any recent changes in the value of your assets. 

If you do not already have a Will, it is advisable that you put one in place to ensure that your estate is left to who you wish, rather than being distributed pursuant to the intestacy provisions of the Administration Act 1903 (WA). 

The COVID-19 virus also highlights the importance that an Enduring Power of Attorney, Enduring Power of Guardianship and Advance Health Directive plays in your overall estate plan, particularly if you are classified as a person at increased risk of serious illness should you contract the virus. 

Unlike a Will which takes effect upon your death, these documents operate during your lifetime and allow you to appoint a trusted family member, friend or advisor to make important decisions regarding your finances, health and treatment decisions, at a time where you are unable to do so yourself. 

These are incredibly challenging and unprecedented times that we are experiencing and we encourage you to take the time to ensure that your affairs are in order and to offer peace of mind knowing that if the worst were to happen, your wishes will be carried out and your loved ones looked after. 

As tempting as it may be during these times to complete a DIY Will Kit online or from the local post office, these can be fraught with danger for many reasons, one of which being that they may fail to satisfy the requirements of the Wills Act 1970 (WA) for a valid Will. At BBV we are making it easier than ever to have your estate planning documents prepared. Contact Alana Shaddick by telephone (08 9325 9644) or email ([email protected]) today to get started and schedule a virtual meeting, following which you can leave the rest to us.

Which marriage counts when you want a divorce?

A void marriage is of no effect in law.  It is not a marriage at all, whether or not the decree declaring it void has been pronounced.[1]

It is not uncommon for a couple to have two marriage-like ceremonies, especially where one spouse has family interstate or overseas.

So, which one counts when you want a divorce?

Section 113 of the Marriage Act 1961 (Cth) (the Marriage Act) creates a general prohibition on persons who are already legally married to each other, marrying each other again.  There are some exceptions, for example where there is doubt about the validity of the first marriage. 

While section 113 creates a prohibition against marrying someone you are already married to, it does not expressly say anything about the validity (or otherwise) of a marriage conducted in contravention of the section, or what the consequences are for those who breach the section. 

Section 23B(1) of the Marriage Act provides a list of circumstances in which a marriage will be void, paraphrased below:

  • either of the parties is, at the time of the marriage, lawfully married to some other person;
  • the parties are within a prohibited relationship (familial relationships);
  • by reason of section 48 (formal requirements for marriages solemnised in Australia) the marriage is not a valid marriage;
  • the consent of either of the parties is not a real consent because:
  • it was obtained by duress or fraud;
  • that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
  • that party did not understand the nature and effect of the marriage ceremony; or
  • either of the parties is not of marriageable age;

and not otherwise.

The grounds listed in section 23B of the Marriage Act purport to be exhaustive, and they do not include a marriage to someone who is already your spouse.  

Fortunately, this does not mean that parties who have engaged in 2 marriage ceremonies need to be granted 2 divorce orders. As a general rule, if the first marriage is valid, then the second marriage is not.

In Kapadia and Kapadia,[2] Kay J relied on the power under section 113(1) of the Family Law Act 1975 (Cth) (Family Law Act) to declare a second marriage (to the same person) invalid.[3]  In the more recent decision of Nelson & Nelson,[4] Hannam J found that on the basis of “common sense and logic”, any such marriage between spouses must be void, notwithstanding the apparently exclusive nature of the words at the conclusion of section 23B(1) of the Marriage Act.[5]

Interestingly, there does appear to be a distinction (largely without a difference) between a void marriage and an invalid marriage.  A decree of nullity may be granted by the Family Court of Australia in the case of a void marriage only.[6]  The Family Court also has a separate power to make a declaration that a marriage is invalid.[7]

The cases cited above involved second marriage ceremonies conducted in Australia.  The validity of a second marriage may depend on whether one (or both) of the marriage ceremonies were conducted overseas.

Part VA of the Marriage Act operates to recognise, in Australia, marriages solemnised overseas (which are recognised as valid marriages under the local law).  There are some exceptions, such as when either party to the marriage was married to some other person at the time of marriage, or when either party was not of marriageable age in Australia.  Already being married to the person you are marrying, is not included as one of those exceptions.

In the case of Lieu & Antcliff,[8] the bride and groom were already lawfully married to each other (having been married in a registry office in Melbourne some years prior) when they renewed their vows and engaged in a marriage ceremony in Fiji (Fijian marriage).   

The couple separated shortly after the Fijian marriage.  They were granted a divorce order in respect of their first marriage in Melbourne without difficulty.  However, they were initially not granted a divorce order in respect of the Fijian marriage because of concerns as to its validity.

The Wife subsequently applied to the Family Court of Australia seeking orders for, in the alternative:

  • a decree of nullity in respect of the Fijian marriage;
  • a declaration of invalidity in respect of the Fijian marriage; or
  • if the Fijian marriage was valid, a divorce order in respect of the Fijian marriage.

The Wife filed evidence from a Fijian lawyer who deposed that it was not an offence under Fijian law to marry a spouse. The lawyer further deposed that the Fijian marriage was valid under Fijian law, notwithstanding that the parties were already married to each other.

It followed then, under Part VA of the Marriage Act, that the Fijian marriage was recognised in Australia, notwithstanding that it was a marriage between two people who were already spouses.

If you have been through two marriage ceremonies with your spouse, and want a divorce, then you should carefully consider the circumstances of each ceremony, and seek legal advice before applying for a divorce.

The contents of this article are for reference and discussion purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.  

[1] Zua v Huang [2015] FamCA 873 at [15].

[2] (1991) FLC 92-245.

[3] See also Anouihl & Temke [2017] FamCA 325.

[4] [2016] FamCA 516.

[5] See also Zau & Huang [2015] FamCA 873.

[6] Family Law Act 1975 (Cth), s 51.

[7] Family Law Act 1975 (Cth), s 113(1).

[8] [2016] FamCA 942.

PLEASE CONTACT

If you would like advice in this area please contact Kori O’Meehan at [email protected] 

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What are the Duties of a Company Director?

Directors are responsible for the management and control of a Company.  They are the controlling minds of the Company.

Under common law principles the fiduciary duties of a director can be summarised as follows:

  • To act in good faith and for a proper purpose;
  • To exercise care, skill and diligence;
  • To exercise the powers for the purpose for which they were conferred; and
  • Avoid conflicts of interest.

In addition to the fiduciary duties owed by directors at common law as outlined above, the Corporations Act imposes extra statutory duties which to a large extent restate and reinforce the common law duties imposed on directors.  What is not widely known is the existence in our law of the so-called “business judgment rule” which is contained in section 180(2) of the Corporations Act.  The business judgment rule states, as a general rule, that if a director acts with care and diligence which is reasonably expected of a person with their knowledge and experience and if they act in good faith and for the benefit of the Company, then they will be exercising their duties and obligations to the Company correctly.

More to the point, a director of a Company will have met the requirements under the business judgment rule if they:

  • Make the particular business judgment in good faith and for a proper purpose;
  • Do not have a material personal interest in the subject matter of that judgment;
  • Inform themselves about the subject matter of the judgment to extent they reasonably believe to be appropriate; and
  • Rationally believe that the judgment is in the best interest of the Company.

While the purpose of the business judgment rule is to provide directors with an indemnity from personal liability for breaches of their statutory and general law duties of care and diligence, this defence will only apply if the decision making process is not flawed.  However, if a director departs from the principles of the business judgement rule, he or she will not have the protection afforded by the legislation and could be exposed to personal liability via litigation where it is alleged there has been a failure in the decision making process and the Company has suffered loss or damage as a result.

The potential ramifications that result from a director not meeting their obligations to their Company can be dire.  If the Company enters into a business transaction which sours or fails and the director did not conduct a proper and careful due diligence, that director may be held liable for damages sustained by the Company due to the imprudence of that director.

Caution should therefore always be exercised by a director of a Company before exercising their business judgment or embarking on a transaction which may affect the Company.

PLEASE CONTACT

If you would like advice in this area please contact David Vilensky at [email protected] or Alana Stallard  at [email protected] of our corporate advisory team.

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Do You Have Capacity For A Will?

Preparing a Will requires careful thought on the part of the person or persons for whom the Will is being prepared but it also demands great care and skill by the lawyer who is preparing the Will.

With people generally now living much longer and being prone to deteriorating mental health careful consideration must be given to whether or not the person for whom the Will is being prepared has the required level of mental capacity to make a legally valid Will (referred to as testamentary capacity). This is not only an increasingly important issue for lawyers, but it is also an equally important issue for accountants, financial planners, family doctors and other advisors.   

One must appreciate that the assessment of a person’s testamentary capacity is a legal test rather than a medical test. The opinion of a treating or reviewing medical practitioner is certainly relevant, but it is not determinative of itself.  An assessment of a person’s testamentary capacity may include obtaining an appropriate doctor’s opinion, but it very likely will also require evidence from other sources including people who know or have known the person concerned and who can inform the Court (if necessary) about  the day to day activities and responses of the person concerned.

Not infrequently, testamentary capacity can be a borderline issue. This may leave the person for whom a Will is being prepared or has been prepared vulnerable to those who may seek to exert influence over the Will maker and what they put into their Will.  Where the Court is called upon to determine a person’s testamentary capacity it will try and look at the full picture (sometimes with the benefit of hindsight) which often involves hearing from a wide range of witnesses.

For family members, as well as financial, medical or other advisors, this means making sure that at the time that the Will is executed there are comprehensive written records of the Will maker’s testamentary capacity – the Will maker should be engaged in conversation and if possible detailed written notes kept of responses to questions and the reactions to events that are happening around them at the time. It may also be valuable to take video of the person concerned at or about the time that they execute their Will to support the conclusion that they then have the necessary testamentary capacity.

These simple precautions can assist to prevent a Will later being declared invalid by the Court because the Court is not positively satisfied that the person making the Will had the required level of testamentary capacity.

The consequence of a Will being declared invalid by the Court can be significant and expensive. This may be especially so where there is a sizable Estate at hand and/or where there are potential vulnerable beneficiaries who may miss out on receiving a benefit from the Estate of the deceased.  The intended testamentary wishes of the person making the Will may be lost and their Estate distribute in a manner which is far less satisfactory and possibly even contrary to their expressed testamentary wishes.

Therefore, anyone who provides professional advice to others must carefully consider the mental capacity of the person being advised to properly understand the advice provided, appreciate the consequences of following that advice and be capable of providing coherent and reliable instructions to the advisor. In the case of a person who is making a Will, it is the required level of testamentary capacity of that person that is crucial. It is, of course, equally  important to ensure that the Will together with all other estate planning documents are regularly reviewed and updated so as to ensure that the person’s Estate will be distributed in accordance with their current testamentary wishes.

PLEASE CONTACT

For more information or to discuss any particular concerns contact Les Buchbinder at [email protected].

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