Can A Will Legally Be Changed After Death?

Contrary to popular belief, a will may be effectively changed after a person’s death.

Entering a deed of family arrangement (DFA), also called a deed of variation, is a way to vary the terms of a will. This agreement can be established provided that all interested parties come to a consensus on a particular outcome.

A DFA is a viable option in certain circumstances where a consensus can avoid the costly and time-consuming litigation process in courts.

Doubts About The Meaning Of The Will

There is no guarantee that the deceased person was in a sound state of mind when drafting the will or had received legal assistance. Using a DFA, interested parties can amend any uncertainties in a way that is most favourable to them rather than judgements from courts.

Redistributing The Estate

Beneficiaries may wish to redistribute the estate amongst themselves or may need to change the allocation of assets if new parties are added to the will. Although the specifics of succession law differ amongst the states, an interested party with a close personal relationship with the will-maker can apply to contest the will if they are left out.

Deliberate exclusions written into the will and long estrangements may not be enough to prevent a claim from succeeding. The court will weigh up financial circumstances, disabilities, age and the nature of the relationship to reach a decision. If the claim by the interested party is likely to succeed, a DFA will amend the will with greater resource efficiency than the courts.

Block A Challenge To The Will 

If an interested party not listed as a beneficiary seeks to challenge the will, a DFA may come in handy. The deed can be used to compromise a claim against the estate agent where there is a challenge to the will. However, this rule differs in states like Queensland and Victoria, where parties cannot contract out of their rights to bring a family provision claim.

Create An Estate Proceeds Trust

An estate proceeds trust (EPT) allows the movement of assets between beneficiaries to occur in the most tax-effective way. Remember that under current tax legislation, a person receiving property via a will from a deceased individual has three years from the death of the deceased to transfer the property to the EPT.

Eligibility And Document Checklist:

Legal advice would be helpful to obtain before drafting a DFA. Follow this checklist once the decision is made to ensure your document is binding and complies with taxation legislation.

  • All interested parties, beneficiaries and the executor should sign the deed to demonstrate the mutual consent of all involved.
  • In certain states, the court may approve the document, providing certainty.
  • No adverse Capital Gains Tax consequences will be incurred if requirements of section 128-20(1)(d)(i) of the Income Tax Assessment Act 1997 are met.
  • Applying for eligible concessions minimises any Stamp Duty (if eligible) triggered by the agreement.

Warning Employees Could Prevent Unfair Dismissal Claims – Here’s How

Warnings are an essential workplace tool in helping to ensure that employees understand their employer’s expectations. They also serve as evidence of a fair performance management process and provide supporting evidence should the employee be terminated.

Warnings can play a crucial role in defending unfair dismissal claims as it provides evidence that the employee was aware that they were displaying unsatisfactory workplace performance and conduct.

A workplace warning is defined as a communication, be it verbal or written, to an employee about their performance or conduct at work. Warnings are a tool used to communicate an identified area where an employee needs improvement or where their conduct does not meet the required standard.

The aim of delivering a workplace warning is to give the employee an opportunity to improve their workplace performance or conduct. Verbal warnings are usually administered before a written one as they are less informal and are generally of a less serious nature. That is, they do not warrant summary dismissal.

Once a warning has been issued, the employee’s performance or conduct is usually monitored for a set period.

A written warning should be issued after a warning meeting has taken place. After the meeting, the employee is advised that they will be receiving a written warning in the following couple of days.

Generally, most written warnings will comprise of the following:

  • record who was present at the warning meeting
  • record the fact that the employee was invited to have a support person present
  • outline the conduct or performance which is the reason for the warning
  • where appropriate refer to a relevant policy or the employment contract
  • refer to previous warnings that were issued
  • record the employee’s responses to the matters in issue
  • clearly state that the employee needs to improve, including an explanation of the consequences for failure to improve
  • where relevant, provide support for the employee to improve such as training
  • preferably be countersigned by the employee as evidence of their understanding of the warning

There is no legal requirement regarding how many warnings must be given before termination. The unspoken rule is to use between one to three written warnings to ensure the employee is given enough notice and time to improve their performance or conduct.

Flexible Working Arrangements In The New Financial Year

Changes to flexible working arrangements have been in place since 6 June 2023. If you haven’t done so already, now is the time to get acquainted with the new legislation (The Secure Jobs, Better Pay Act 2022 (Act)).

The legislation has updated the laws governing requests for flexible working arrangements and introduced new provisions that enable the Fair Work Commission to settle disputes related to such requests.

The Act enhances the existing rights to request flexible work arrangements as outlined in section 65(1A) of the Fair Work Act 2009 (Cth) by broadening the situations in which an employee can seek flexible arrangements.

This now includes cases where an employee, or someone from their immediate family or household, encounters “family and domestic violence”, as outlined in section 106B(2) of the Act.

Additionally, the Act incorporates a new section, 65A, mandating that an employer who receives a request for flexible work arrangements must:

  • meet with the employee to discuss their request for flexible work; and
  • if the employer plans to decline the flexible work request, either reach a mutual agreement on alternative changes to the employee’s working arrangements and record the agreed-upon changes in the employer’s written response; or
  • should the employer still intend to refuse the request, specify the reasonable business grounds for the refusal and address the following:
    • possible adjustments to the employee’s working conditions that could accommodate (to a certain extent) the employee’s situation and that the employer is willing to make; or
    • that the employer is unable to implement such adjustments to accommodate the employee’s circumstances.

The Act introduces a dispute resolution mechanism for situations where an employer has:

  • denied a flexible work request; or
  • failed to provide a written response to a flexible request within 21 days; and
  • the parties cannot resolve the dispute through discussions at the workplace level.

Employers should ensure they are in compliance with the new conditions by:

  • updating their approach to assessing and responding to employees’ flexible work requests to incorporate the requirements to:
    • meet with the employee and discuss their request; and
    • inform the employee of any changes to working arrangements the employer is willing to consider to accommodate their situation.
  • assessing any barriers to their ability to provide flexible working arrangements to employees (considering the nature of the business) and the potential evidence needed to demonstrate these barriers.

A Case For Workplace Policies

Workplace policies are not reserved for big corporations; small businesses are increasingly subject to unfair dismissal and adverse action claims that could be minimised by implementing workplace policies.

Now is an excellent time for employers to set or review workplace policies. Workplace policies set the framework for expected employee behaviour and performance; and the consequences of not complying with their responsibilities.

Well-enforced policies can provide employers with a basis for defending potential liabilities if a legal dispute arises between an employee and employer. A workplace policy clarifies functions and employee responsibilities and ensures uniformity and consistency across all operational procedures.

Although not all workplace issues require a policy, employers should have policies for fundamental problems, such as antidiscrimination and equal opportunity, code of conduct, anti-bullying, sexual harassment, privacy, drug and alcohol use, and workplace health and safety.

For a workplace policy to be effective, it must be publicised and provided to both new and existing staff members. A policy should set out the aim of the policy, why it was developed and who it applies to.

It should clearly outline acceptable and prohibited behaviour and disciplinary action for breaching the policy.  Employers must include a date for when the policy was developed and be sure to regularly review and update policies where necessary.

Any changes to employment law and/or your industry’s award or agreement may require a review of your policies and procedures.

Policies must be explained in full and employees should sign off on documents to acknowledge their awareness and understanding of policies. For policies to work effectively, a breach of policy should be implemented and objectively followed by all levels of management, according to the procedures set out in the policy.

Separating? Here’s Your List Of What Needs To Happen

Seek Legal Advice

Seek legal advice concerning access to children, marital property and financial matters.

Suppose you are unsure of your legal position or want to look after your own divorce. In that case, a solicitor can assess your situation and advise you concerning your legal rights before you start negotiating with your ex-spouse.

Sever Joint Tenancies 

Joint tenancy means that if one of the joint owners dies, the deceased’s share is automatically passed on to the other joint tenant. This means that if you die, your interest may be automatically inherited by your spouse or partner. Severing the joint tenancy will ensure that your share is dealt with in accordance with your wishes.

Update Your Will

Before divorce, any gifts to your ex-partner in your Will remain valid. If you die suddenly during the separation process and before your divorce is finalised, your ex-partner may inherit your property.

Seek Financial Advice

You should seek financial advice before making any legal decisions. Seeking financial advice will enable you to make an informed decision about your future.

Know Your Legal  Limitation Periods

A Divorce Order cannot be applied before a period of 12 months of living separately and apart from your partner. Once the divorce order becomes final, a property application must be made within 12 months of divorce if a property settlement has not already been finalised.

Update Your Superannuation Death Benefit Nomination

A superannuation ‘death benefit’ includes the money in the deceased’s super account at the time of death plus any life insurance cover through the super fund. If your ex-partner is listed as your beneficiary, your death benefit may be paid to your ex-partner. You should review this situation.

Review Your Bank Accounts

It is important that you set up your own finances and restrict your spouse or partner’s access. If you open a new account in your name make sure than your pay is going into this account. You may need to talk to your bank to cancel any access you ex-partner may have to accounts in your name, and close off joint bank accounts. It may also be necessary to change joint loans and mortgages to require joint signatories to withdraw any funds and limit or cancel any redraw facilities.

Update Your Power Of Attorney

It is crucial that you revoke any Power of Attorney your partner or spouse may have. While they still have Power of Attorney, they may deal with your property or financial affairs after separation without your knowledge.

Provide Copies Of Financial Records To Your Solicitor

If you are separating from your spouse or partner, you may wonder how property and financial assets will be divided. When you meet with your solicitor about settling property and financial matters, you will be asked several questions about your circumstances, including joint and individual assets and liabilities, bank accounts, credit cards, shares, superannuation entitlements, and any business or company interests.

It is essential to have as much detail as possible, and it will help if you can bring copies of financial records, including statements and pay slips, with you.

Review Your Budget

Review your budget. You may need to speak to a solicitor about seeking interim property or spousal maintenance orders.

Buyer Beware – Why Pre-Purchase Inspections Are Important

Purchasing a new home is often one of the most significant financial decisions you will ever make.

With this in mind, purchasers must ensure they are not buying a problem that may cost thousands to repair down the track. What are pre-purchase inspections, and why are they important?

The “buyer beware” rule applies to the property’s condition and state of repair. A vendor is only required to disclose defects that affect the title of the property and the vendor’s warranties may not cover all the matters you may wish to consider before going ahead with the purchase. Pre-purchase property inspections should uncover any problems.

With this information, you can reflect on whether you wish to proceed with the purchase or walk away with your finances intact. Although things may look good on the surface, the buildings on the property may have hidden faults that are not obvious to the naked eye.

Problems may be masked by home improvements or a ‘quick makeover’ and are difficult to spot without knowing what to look for.

A pre-purchase building inspection is a written report outlining the condition of the property. The report will specifically check the structural integrity of the property and inform you about any problems.

A building inspection will not include information about the existing presence of termites or other pests. The presence of termites often goes on undetected for months or even years.

If the damage has already occurred, you may face substantial repair costs to rectify the problem. Therefore, we recommend that purchasers obtain a pest and building report prior to exchanging Contracts.

However, these reports should not be seen as all-encompassing. It is necessary to customise your enquiries according to the unique aspects of the property. Swimming pools, air-conditioning and electrical wiring, are examples of issues that may require further inspection.

In addition to giving you peace of mind, the outcome of these reports can be an important bargaining tool when discussing price with agents and vendors.

When you consider the huge financial investment you are about to make, the cost of obtaining these reports is relatively low in comparison.

Time To Check Payroll – Employee Underpayment

Employee underpayment, whether a failure to pay penalty rates or unauthorised wage deductions, is a breach of the Fair Work Act and consequently can result in hefty employer penalties.

Employers are responsible for paying staff members the minimum monetary amounts, including allowances, prescribed under an award or agreement. When an employer fails to do so, the employee can claim for underpayment of wages within six years of the money becoming due.

Underpayment can result in various ways; here are three common risk areas for employers:

Incorrect Classification

Generally, classifications are based on the nature of the role and the employee’s qualifications and experience.

Employers must first ensure they use the relevant award or agreement for the employee and then match the classification to the corresponding hourly pay rate.

Failure To Pay Entitlements

Incorrect payment of entitlements, such as penalty rates, overtime, leave and allowances, is considered underpayment. Any allowances, loadings or penalties set out in an award or agreement must be applied to employees.

Special care must be taken when applying for annual leave; employers must check the pay rate and if an annual leave loading applies as per the annual leave clause in the award or agreement. Employers must also ensure they remain up-to-date with any changes to modern awards, such as annual award increases and increases in rates of pay.

Unauthorised Deductions From Wages

An employer must only make reasonable deductions from wages, such as a salary-sacrificing agreement. A deduction must be authorised in writing and work following a modern award or agreement. Any deductions that directly or indirectly benefit the employer are considered unauthorised deductions. Employers risk breaching the Fair Work Act if they deduct costs such as tools and equipment, uniform and breakages from an employee’s wages.

Security Documents, Loans & Your Business

Are you looking at taking out a loan? Make sure you understand the paperwork involved beforehand.

One security document that almost all lenders require a business to sign prior to a loan being provided is a general security agreement.

This is because a lender is looking for a guarantee that your business will be able to pay back the principal amount and the interest in full.  To provide this, lenders will usually require:

  • thorough investigations on your business and its cash flow;
  • you to make specific representations which must remain true during the term of the loan;
  • your business to provide undertakings that it must perform; and
  • you and your business to sign security documents that grant the lender rights over your assets.

A general security agreement or GSA is a security document that gives a lender rights over all your business’s present and future assets (including tangible and intangible property). This does not however include assets such as land or statutory licenses. If your business defaults on the loan, the lender will be entitled to take enforcement action against you, including

  • Appointing a receiver over your business and
  • Selling the secured assets

Before signing a GSA, you should consider the following:

Is The GSA Required? 

It is essential to question why the lender requires the additional security and, if possible, negotiate with the lender to remove the requirement to provide a GSA. It is in your interest to limit the security you provide to the lender to secure the loan, as otherwise, the security may not be proportionate to the loan amount.

Are The Terms Of The GSA In Line With The Industry Standard?

A GSA is a standard security document required by lenders, so the terms of a GSA should follow standardised expectations across the financial sector. Consult with your lawyer to ensure that the terms are within expectations, or to negotiate for the GSA to be drafted to be in line with the industry standard. 

What Are Your Other Obligations Under A GSA?

Your legal obligations under a GSA will generally include:

  • effecting and maintaining adequate insurance policies over the business assets with a reputable insurer;
  • providing the secured party sufficient information about the business assets to allow it to protect its interest over the assets; and
  • not dealing with business assets without the secured party’s consent unless it is in the ordinary course of your business.

What Are The Restrictions On Dealing With Your Business Assets

A standard GSA places significant restrictions on your ability to deal with your business assets, without the lender’s consent. Under a GSA, there may be restrictions on the business’s ability to:

  • sell or transfer the business assets. If any assets are sold, the proceeds may need to be applied to the debt unless the secured party agrees otherwise;
  • permit others to have an interest over the assets;
  • transfer the control of the assets to others, and
  • alter the nature of the assets.

Is A Power Of Attorney A Requirement Or A Recommendation?

Why do you need a Power of Attorney? It’s one of the most critical safeguards you can have in place to protect your ability to make decisions. That’s why it’s highly recommended that you put into place a Power of Attorney as a part of your overall estate planning.

What Is A Power of Attorney?

A Power of Attorney is a legal document through which you appoint someone you trust to act on your behalf in regards to your property and financial affairs. The document states what the attorney is authorised to do on your behalf. This can be quite narrow and specific or as general as you wish.

Why Should I Have a Power of Attorney?

A Power of Attorney is not only valuable for the situation you lose your ability to make decisions. You may travel overseas and want to give your attorney access to your bank accounts to pay your bills or manage your finances. Alternatively, if you become unwell or lose the ability to manage your financial affairs, having a Power of Attorney allows your attorney to make decisions on your behalf.

What Happens If I Lose Capacity & Are Without a Power Of Attorney?

If you lose capacity and haven’t made a Power of Attorney, there will be no one with legal authority to manage or make decisions about your property or finances. Your family may have difficulty accessing your bank accounts to pay your bills. If you need to move into residential aged care and your home needs to be sold, only someone appointed as your attorney can do this.

A relative or another person may need to apply to the Guardianship Tribunal or Supreme Court to have a financial manager appointed for you. This may not be the person you have chosen and could cause your family significant time and cost to apply to the Guardianship Tribunal.

Your Employee Gets Jury Duty – What Do You Have To Do?

Employers must comply with the legal responsibilities outlined when dealing with an employee summoned for jury duty, or they could face penalties of up to $50,000.

When an employee gets summoned for jury duty, it can stress the workplace as other staff take on extra work.

As an employer, you’ll likely want to avoid the inconvenience of releasing an employee for jury duty; however, this may be difficult.

Can You Refuse To Release An Employee For Jury Duty? 

As an employer, you must release any employee for jury duty if they have been summoned. It is an offence to act prejudicial to an employee if they have been summoned for jury duty, including threatening their employment or wages.

If your business faces significant hardship with an employee at jury service, you may be able to request that the employee be excused. This will require an explanation of jury service’s impact on your business.

A request must be communicated before empanelment (when the jurors have been selected), and making a request does not guarantee that your employee will be excused.

What Are The Employee’s Rights?

When your employee is away on jury duty, this cannot be counted as any other leave other than jury duty leave. An employee’s annual leave and sick leave will be unaffected.

Employers also cannot dismiss their employees for attending jury duty. Most Australian states restrict employers from terminating an employee or detrimentally changing or threatening employment terms because an employee is on jury duty.

Employers also cannot ask an employee to work on a day they serve as a juror in court or to work additional hours to make up for the time they missed whilst on jury duty.

When an employee is serving jury duty, employers generally must pay permanent employees their usual wages for the first 10 days of service or pay what is often called ‘make-up pay’. This is the difference between the jury service payment and the employee’s base rate for the ordinary hours they would have worked.