Author: Kerin Cotchett

‘Undue influence’ in Estate Planning

Posted onAuthorKerin Cotchett

Your Will is a crucial element of your overall estate planning. “Estate planning” refers to all those important documents and decisions that you make to govern what happens to your body and your belongings if you lose the capacity to manage for yourself including after your death. Estate planning can also include Power of Attorney and Guardian appointments, business succession agreements and superannuation binding nominations.

When you create a Will it is very important that you exercise free choice. After all, it is your wishes being recorded. Recording your wishes in a Will involves naming who you want to be in charge of your assets (your “executor”) and who you want to receive your assets (your “beneficiaries”) after your death. Having a valid Will is the best way to ensure your final wishes are appropriately carried out.

Your Will can be disputed if an interested party (a relative, close friend or carer for example) suspects that you (the “Will-maker” or “testator”) was under ‘undue influence’ at the time you gave your instructions for the Will to be drafted.

What is ‘undue influence’? 

Undue influence refers to situations where a testator is under pressure to write a document (e.g. a Will or Power of Attorney document) in a way that actually goes against their true wishes.  Manipulative behaviour such as blackmail, threats, lies and flattery may be used to unduly influence a Will-maker.

The primary purpose for someone to use undue influence in relation to Wills is so that they can gain more benefit from the testator’s estate. This is often at the expense of other beneficiaries, which may lead to family provisions claims (link to other elringtons articles re: FPA claims) by those unfairly treated family members of the deceased person.

For example, a deceitful child might make false claims about certain siblings to convince parents to leave their brothers and sisters out of an inheritance or disproportionately favour themselves. In other circumstances a new neighbour may befriend an elderly person and charm them in order to become a beneficiary of their Will in place of relatives in need of provision from the testator’s estate.

If a deceased person has left their whole estate to a single person, particularly if that beneficiary is a new acquaintance or unknown to other friends and family, this might be a sign that undue influence has occurred.

The Courts can determine that a Will is invalid if it is proved that undue influence has occurred.  But how can someone prove that their loved one was coerced to make their Will?

How do you prove undue influence?

It is not an easy task to prove that a person was under pressure to write, sign or give instructions for their Will. Claiming that undue influence occurred is a serious allegation and the job of proving that it occurred is up to the person making the claim.

Witnesses to the production or signing of the Will may be able to provide evidence that the testator was coerced by someone who stood to benefit.

Other important evidence might come from the previous Wills of the deceased person. If the last Will is markedly different to previous Wills or differs greatly from their verbally stated intentions, the previous Wills might be used as evidence of the deceased person’s actual intentions.

There is no guarantee that any one of these factors will sway a judge, so please seek legal advice from a Wills and Estate Planning lawyer and let us help you make your case.

Contact elringtons Lawyers if you believe a friend or family member was under undue influence when making estate-planning decisions.

For more information or to make an appointment contact:  Kerin Cotchett

e: kcotchett@elringtons.com.au | p:  02 6206 1300

Volunteers and Vicarious Liability

Posted onAuthorKerin Cotchett

Are you a volunteer or an organisation that employs volunteers? Are you and/or your volunteers covered by adequate insurance? Have you considered the important exemptions to public liability protection under your relevant insurance policy? Do you need help deciphering what your insurance policy document means and where your organisation might not be covered?

Under the Civil Liability Act 2002 (NSW) (“CLA”) if you have arranged for adequate insurance cover for your volunteers, and your volunteers are acting in the best interests of the organisation and not involved in any wrongdoing, they should be protected against any civil claims arising from acts or omissions by them or others during the course of their volunteer activities. This means that if your volunteer was acting within the bounds of their position description and through their own personal negligence caused a third party to injure themselves, they will most likely be protected from personal liability for the accident as long as the appropriate insurance cover has been arranged.

It is important to note that the protection of volunteers from incurring personal liability for their acts or omissions during the course of their duties does not apply where:

  • The volunteer was not acting in good faith (“good faith” = acting honestly and without fraud);
  • The volunteer knew, or ought reasonably to have known, that he or she was acting outside the scope of the activities organised by the community organisation, or contrary to instructions given by the community organisation (section 64 CLA);
  • The volunteer was engaged in an activity that constitutes a criminal offence (section 65 CLA);
  • The volunteer’s ability to exercise reasonable care and skill when doing the work was significantly impaired by alcohol or drugs voluntarily consumed (whether consumed for medication or not), and volunteer failed to exercise reasonable care and skill when doing the work (section 63 CLA);
  • The volunteer was engaged in defamatory behaviour; or
  • The volunteer incurred liability that would otherwise be covered by third-party insurance under the Motor Accidents Compensation Act 1999 (NSW), that is, a liability for compensation in respect of people who are injured or die as a result of transport accidents

In addition, in certain circumstances (whether a volunteer gains this protection or not) the community organisation may be liable for the volunteer under the legal doctrine of ‘vicarious liability’.

If you are running any kind of volunteer organisation, it is important to outline very clearly to your volunteers their roles and responsibilities in instruction manuals and training guides. A written job description and/or volunteer policy document may also state what behaviours or actions are prohibited (for example, the giving of medical advice).  These documents may help to define what kind of work or actions are authorised or instructed by the organisation and what volunteer actions might be considered to be outside the scope of their authority or contrary to instructions.

Please contact one of our friendly solicitors if you have any questions in relation to your organisation’s insurance policy, legal structure, or if you require advice in relation to a claim against you or your organisation.

For more information please contact:

e: info@elringtons.com.au | p: +61 2 6206 1300

Elder Abuse: Together making change

Posted onAuthorKerin Cotchett

There are a number of reasons why the subject of elder abuse is gaining more traction with politicians and getting more coverage in the media at the moment. No doubt two of the main reasons Australians are beginning to take notice of this growing problem are: (a) Australia’s ageing population means that more and more old people (with more and more wealth) are at risk of abuse; and (b) the legal and social policy gaps in targeting this growing issue are becoming more and more obvious and difficult to ignore.

When I was given the opportunity to attend the ‘National Elder Abuse Conference 2018: Together Making Change’ I was thrilled for the opportunity, given that the majority of my clients are over the age of 65.

A few of the key legal issues in recognising and addressing elder abuse in a solicitor’s day-to-day legal practice include:

  1. Assessing Capacity
  2. Considering Undue Influence
  3. Ruling out Conflict of Interest

Any one or all of these potential issues (and more) might arise when faced with taking instructions from clients, often presented by their children, wanting to make Wills or Enduring documents (Power of Attorney and Appointment of Enduring Guardianship).

Estate planning lawyers are obligated to ensure our clients have the mental capacity to give instructions to make a Will or Enduring documents (“testamentary capacity”). [1] In addition, we are encouraged to consider undue influence (even if just to dismiss it).[2]  Finally, it is important for us, as it is with any lawyer, to always assess “Who do I represent?” in order to avoid acting in conflict with our client’s best interests.[3]

The National Elder Abuse Conference 2018 was comprised predominantly of short presentations and panel discussions about current issues and was geared largely towards social and economic policy development.  The main legal focus of the conference was on those legislative reforms needed to reduce the occurrence of elder abuse and to better address and punish instances of it when it occurs.  Two areas of legislative reform of particular relevance and interest to practising solicitors are:

  1. Establishing a National register of Enduring documents; and
  2. Criminal law responses to financial and other types of elder abuse.

National Register of Enduring Documents

The idea of a national register for Enduring Documents is one that has been around for some time,[4] and is finally gaining momentum in the legal context.  For example, in June 2017 the Australian Law Reform Commission recommended that there should be a three-step process, whereby the enduring appointments made by residents of all Australian states and territories become unified under the following:

  1. An agreement on nationally consistent laws governing personally appointed substitute decision makers;
  2. A consistent national model of enduring documents; and
  3. A national online register of enduring documents, and court and tribunal appointments of guardians and financial administrators.[5]

In recent times there has been a strong push from the banking sector, academics and elder rights groups for the establishment of a nation-wide electronic database recording all existing Power of Attorney documents.[6] While  it is possible that the changes, once implemented, may mean an increase in administrative tasks for staff in the banking industry, health-care workers and private practitioners, there is no doubt that all Australians would benefit from more effective regulation and policing of the use and abuse of power of attorney documents.

Policing Financial and other Forms of Elder Abuse

During the 2018 Conference The ‘Elder Abuse and Policing: What is Best Practice?’ Panel invited high-status members of the NSW and Victorian Police force and key community groups to discuss their current practices and limitations in their responses when faced with situations where they suspect abuse of an elderly person.[7] The panel gave a number of examples of elder abuse including situations of neglect, instances of children or carers misusing power of attorney appointments, and other behaviours that fall within a broader definition of abuse than that currently prohibited or protected against under the current criminal law.

In its recent report on elder abuse the Australian Law Reform Commission stated:

In all Australian jurisdictions, there are offences that broadly relate to fraud, deceptive conduct, stealing and other property related offences. In certain circumstances, some of these may be applicable to cases of financial abuse of older people, including in respect of abuse of powers of attorney. In Victoria and Queensland there are a range of offences specifically relating to powers of attorney. The ALRC is unaware of any prosecutions under these provisions. [8]

At the end of the ‘Policing: Best Practice’ discussion the floor was opened for questions and Queensland Principal Solicitor Brian Heard asked: “Do you think the current level of data and the current legislation does enough to criminalise and target and address the problem of financial elder abuse?” NSW Detective Superintendent Robert Critchlow provided a very eloquent and honest answer (to paraphrase: “No and no”) and pointed to the work of one Rodney Lewis, Solicitor.[9] Lewis has had a significant impact in the area of elder law, stating:

Even allowing for the ALRC recommendations there will remain gaps into which victims of elder abuse will continue to fall. We need a coherent statute adopted by States and Territories in a cooperative legislation scheme, to provide a focal point for the victim, their family, community and government support. It will include remedial and restorative justice measures which are affordable and mandatory when necessary for the perpetrator. Until we criminalise elder abuse in many of its forms, to address the just claims of our vulnerable elders, we cannot without significant legal risk and expense restore financial loss, let alone resolve the residual anguish, especially within the family.[10]

Practising in this area when those well-needed legislative and policy changes come through will be exciting. While it may still be some years away, hopefully following the 2018 conference we will see some positive progress from politicians and eventually the legislature. Elringtons will be at the forefront of addressing those changes when they finally come through.

For more information please contact:

Our Wills and Estate Planning planning team:

p: +61 2 62061300 | e: info@elringtons.com.au

[1] Regarding the traditional test for determining testamentary capacity, see Banks v Goodfellow (1870) LR 5 QB 549; For comments that legal professionals need to be aware of circumstances which give rise to issues of capacity assessment see Legal Services Commissioner v Ford, [2008] QLPT 12, Unreported, Fryberg J, 22 August 2008
[2] Ryan v Dalton; estate of Ryan [2017] NSWSC 1007 at 107 per Kunc J

[3] Reilly v Reilly [2017] NSWSC 1419

[4] Parliament of Australia, House of Representatives, ‘Standing Committee on Legal and Constitutional Affairs Report Older people and the law’, 2007, ISBN 978-0-642-79014-9 (HTML version) and Keast, Jackie, ‘Lack of National Register Leaving Banks Unclear on Power of Attorney’, Australian Ageing Agenda, July 24, 2015

https://www.australianageingagenda.com.au/2015/07/24/lack-of-national-register-leaving-banks-unclear-on-power-of-attorney/

[5] Recommendation 5-3, Chapter 5 ‘Enduring appointments’, Australian Law Reform Commission, ‘Elder Abuse, A National Legal Response, June 2017

[6] University of Western Sydney, Cognitive Decline Partnership Centre, Council on the Ageing (COTA) NSW, “NHMRC Partnership Centre On Dealing With Cognitive And Related Functional Decline In Older People (Cdpc) Final Report: The Policies And Practices Of Financial Institutions Around Substitute Decision Making”, Annual Report 2014, https://sydney.edu.au/medicine/cdpc/documents/contact/2014-annual-report-summary.pdf

[7] Video available online at http://togethermakingchange.org.au/videos/ “Elder abuse and policing: what is best practice” (Brian’s question is at 44mins)

[8] ‘Criminal Justice Responses’, ALRC Elder Abusereport 2017, p. 365

[9] Video available online at http://togethermakingchange.org.au/videos/ “Elder abuse and policing: what is best practice” (Brian’s question is at approximately 44 mins)

[10] Lewis, R “Fill the gap in elder abuse responses with an Elder Justice Law”, National Elder Abuse Conference 2018: Together Making Change, and “Elder Law in Australia”, Launch, Parliament House, Sydney, NSW, 4 April 2012  http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/Pre-2015%20Speeches/Bergin/bergin_20120404.pdf

Minor Wills – Do you have to be over 18 to make a will?

Posted onAuthorKerin Cotchett

As well as being “of sound mind” or having testamentary capacity to make a Will, a will-maker (also known as a “testator”) must also be an adult. That means your teenager’s threat of disinheritance scribbled on a napkin will not be legally binding – phew! But what if you do want to make a Will for a young person?

In special circumstances, a person under the age of eighteen years may be permitted to make a legally enforceable Will. For example, the child may have inherited a large sum of money from a relative, or, the child may have received a personal injury payment.

Legally, the only way to make a Will for a person under the age of eighteen years is to make an application to the Supreme Court under the Succession Act 2006 (NSW).[1]  The requirements for making an application to the Supreme Court for a minor Will include:-

  1. The will-maker must be under 18 years of age and represented by a legal guardian;
  2. The minor will-maker must understand the nature and effect of the proposed Will;
  3. There must be reasonable circumstances that would permit the Court to make an order allowing the minor to make a Will, such as:

(a)    It would not be appropriate, if the minor was to die without a Will, for their estate to be distributed to those entitled under the usual intestacy laws (e.g. where there is no Will the estate will go to the spouse or children of the deceased first, then to the parents, then siblings, then grandparents, then other relatives); or

(b)    There are no living relatives.

  1. Those parties affected by the application must be served with notice of the application (i.e. anyone excluded in the minor will-maker’s proposed Will who would be entitled to the minor’s estate under the intestacy rules must be made aware of the application)

It is also possible for the ACT and NSW Supreme Courts to permit a Will to be made for a minor who does not have testamentary capacity.[2]

If you believe you or a young person under your care requires a Will, elringtons, with its team of dedicated lawyers, is here to assist. Please contact one of our friendly solicitors on 02 6206 1300 or info@elringtons.com.au to discuss at your convenience.

[1] Section 16 Succession Act 2006 (NSW)

[2] Section 16A Wills Act 1968 (ACT) and Section 18 Succession Act 2006 (NSW)

Elder Abuse – A Confluence of Rights and Responsibilities

Posted onAuthorKerin Cotchett

In July 2017, the Australian Law Reform Commission released a report into the prevalence of “elder abuse” in Australian society. Elder abuse is defined by the World Health Organisation as ‘a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person’.

The increase in instances of elder abuse in Australia is understood to result from overlapping socio-economic factors including a crisis in housing affordability, rising costs-of-living and increased longevity. In the ACT, approximately 6% of persons surveyed had suffered elder abuse (ACT Elder Abuse Prevention Program Policy June 2012) and according to research presented by the Australian National University this figure has not dropped in the past five years.[i]

The Law Commission’s report makes a number of recommendations to address the problem of elder abuse, such as:

  • Establishing new laws and modifying existing legislation (e.g. the Aged Care Act 1997 Cth and Crimes Act 1900 NSW) and to allow provision for new serious incident response scheme and new adult safeguarding laws for ‘at risk adults’ in each state and territory
  • Implementing stronger safeguards against the misapplication of Appointments of Power of Attorney and Enduring Guardianships
  • Establishing an online register of Power of Attorney and Enduring Guardianships documents that is accessible Australia-wide

It is very important to ensure that your Power of Attorney and Enduring Guardianship documentation is reviewed regularly and updated if necessary to ensure that it is in line with your most recent wishes and that it accords with any changes to the law.

Here at elringtons we can assist people in addressing some of the problems associated with elder abuse at an individual and community level.  By providing legal advice and assistance in understanding yours and your loved one’s rights and responsibilities in relation to estate planning, nursing home accommodation and the role of the law in family relationships and agreements, together we are becoming part of the solution.

If you have questions about Estate Planning matters (your Will and Superannuation, your Appointment of Power of Attorney and Enduring Guardianships), yours or your family member’s nursing-home accommodation, or other matters relating to the care and wellbeing of elders, please contact one of our experienced practitioners today.

e: info@elringtons.com.au | p: +61 6206 1300

Further Information:

If you need further information about elder abuse call the NSW Elder Abuse Hotline and Resource Unit on 1800 628 221 (free call) or visit the NSW Website now:

In the ACT please call the Older Persons Abuse Prevention Referral Line 6205 3535 or go to the ACT Community Services website

For more information about see the ACT Elder Abuse Program Policy.

References:

World Health Organisation Elder Abuse,

ACT Elder Abuse Prevention Program Policy, (June 2012),

Aged Care Act 1997 (Cth)

Australian Law Reform Commission report on Elder Abuse  (3 July 2017)

Families being torn apart with Gen Y relying on inheritance cash to buy a home (20 August 2017)

Financial abuse of elderly parents on the rise as housing becomes more unaffordable (27 August 2017)

https://www.domain.com.au/news/financial-abuse-of-elderly-parents-on-the-rise-as-housing-becomes-more-unaffordable-20170827-gy33zq/ (27 August 2017)

[i] The signs of elder abuse you could be missing