Some Reasons to Re-think why you need a Will

Danielle Edwards • Sep 14, 2022

Despite being one of the most commonly known legal documents to the general public, around 50% of Australians don’t have a valid Will.

This statistic is alarming, particularly when you consider how important a Will is as it deals with your life’s hard work and has the ability to significantly impact your loved ones.

 

So today, we are going to have a look at what makes a Will valid and how it can be written to ensure your estate is distributed according to your desires.

 

Benefits of having a Will

 

There are many good reasons to have a Will. Some of these include:


  1. You can be clear about who gets your assets, deciding who gets what and how much;
  2. You can keep your assets out of the hands of people you don’t want to have them (like an estranged child for example);
  3. You can identify who should care for your children;
  4. Your beneficiaries will have a faster and easier time getting access to your assets; and
  5. You can plan to save your estate money on taxes and leave gifts and charitable donations which can help offset any estate taxes.

 

A Will Requires…

 

In order to be considered valid, a Will must be in writing and be witnessed by two independent witnesses. The will-maker must also be of sound mind at the time of writing and signing their Will.

 

The Will should also contain the will-maker’s full name, address and occupation, the date the Will was signed, the name of your executor, how your estate is to be distributed and the signing clause.

 

You may distribute any piece of property, from personal items like books and jewellery to real property. It is not necessary to list every item of property specifically in your Will, the only caveat is that your Will must deal with all of your property in some manner. It is therefore recommended that your Will contains a clause dealing with “all of [your] property” or “all remaining property”.

 

A badly written Will can not only lead to delays and disputes, but it may also be deemed invalid.

 

The Executor

 

So what is the executor?

 

The executor is the person charged with executing the instructions left by you in your Will. Essentially this means gathering all your assets, paying off your debts and distributing the remaining assets in accordance with your Will.

 

The executor often also arranges the funeral and makes initial contact with the beneficiaries.

 

If you have left property or investments, it is the executor’s job to arrange for them to be looked after. If you have distributed assets to persons under age, it is also the executor’s job to set up any required trusts and maintain these for as long as required.

 

The role of the executor can be complex and time consuming so it is important you nominate someone that can appropriately take on this position.

 

Superannuation and Life Insurance

 

Something to keep in mind when you write your Will is that superannuation and life insurance policies are not automatically considered by the law to be a part of your estate. After you pass, these policies are dealt with by the trustee of the fund.

 

However, most funds will give you the option of making a death nomination, which allows you to elect those who will benefit from your policies. When making a death nomination there are a combination of options you can choose from, typically being binding (the trustee will be bound by your nomination) or non-binding (the trustee can use its discretion) and lapsing (it must be renewed every three years or as otherwise directed by the fund) or non-lapsing (it will remain valid until you pass). It is often our recommendation that you elect a binding non-lapsing death nomination, however this will depend on who you wish to leave the benefit of these policies too.

 

This process is similar with self managed superannuation funds, however it is important to note there are additional rules and regulations that govern these types of policies that need to be taken into account when making a death nomination or determining who you want your superannuation to be distributed to.

 

Taxes

 

Lastly, it should be noted that whilst there is generally no tax on inheritance in Australia, there may be tax implications if your executor resides outside Australia (this is because the tax residency of the executor determines the tax residency of your estate) or your beneficiaries reside outside Australia.

 

Further, beneficiaries may have tax obligations for the assets inherited once assets are disposed of (i.e. on the sale of real property capital gains tax may apply) or for income dervied from assets inherited (i.e. income tax may apply for dividends from shares or rent from real property).

 

Conclusion

 

Wills are a great insurance that the fruits of your labor are distributed to the people of your choosing and ensuring your loved ones are provided for after your passing.

 

If you would like assistance with preparing or amending your Will we would be more than glad to help out. Please contact our office on (08) 9321 5451 or office@bailiwicklegal.com.au for more information.

 

The contents of this article does not constitute legal advice, is not intended to be a substitute for legal advice and should not be relied upon as such. It is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. The material may not apply to all jurisdictions. You should seek legal advice or other professional advice in relation to any particular matters you may have.


By Danielle Edwards (Senior Associate)

 

20 Feb, 2024
The Human Rights Commission may take action against employers who fail to actively eliminate sexual harassment, discrimination and victimisation in the workplace, as part of a positive duty reform. While the reform itself was introduced under the Sex Discrimination Act in 2022, a change was put in place last December - and every employer, including those in the agricultural sector, is affected. This change has provided the commission with new powers to investigate and enforce compliance with positive duty and investigate organisations or businesses where it "reasonably suspects" non-compliance. What does this mean for shearing contractors, sheep producers and other primary producers? Speaking at the WA Shearing Industry Association (WASIA) general meeting last month, Bailiwick Legal solicitor Matilda Lloyd said the enforcement power involved inquiries and investigations similar to WorkSafe. She said a complaint did not have to be made for an inspector from the commission to visit and look over a workplace, and see if there is any kind of sexual harassment occurring. "The commission looks at policies and procedures, and essentially you need to be able to demonstrate that you're compliant with this positive duty. "When you think about it in the context of a shearing shed, it is the safety checklist you have in place for when people enter the shed. "Those are the things you need to consider with sexual harassment as well." Ms Lloyd said the commissioner never had the power to conduct an investigation before and, as such, practically how it was going to work was an unknown. "We don't know whether they're going to be coming out and doing regular inspections, what those inspections are going to look like in terms of time or how thorough they are going to be, " sh e said. "They need to be thought of the same way as a WorkSafe investigation, whereby it could happen at any point whether a complaint is made or not. "Investigators will expect employers to show that they are actively trying to eliminate this form of unlawful conduct." If an inquiry occurs, what will happen? If an employer wasn't taking the correct measures to stop sexual harassment, discrimination and victimisation from occurring, they could be issued a compliance notice. Ms Lloyd said if the notice wasn't adhered to and an inspector returned, they could apply to the Federal Court to have that positive duty enforced. What is positive duty? Ms Lloyd said a positive duty was a legal obligation on an employer or person conducting a business or undertaking to take reasonable and proportionate measures to eliminate unlawful behaviours in the context of work, workplaces and working relationships. In the case of shearing contractors, sheep producers and other primary producers, she said that obligation was on the employer and applied to all staff, workers, contractors, customers and people entering, for example, a shearing shed. She said the obligation was "very broad" and applied right across the board. "Enforcing positive duty is pretty straightforward in terms of the employer, but when we look at the other parties involved it is extensive, " Ms Lloyd said. "When we are talking about sexual harassment in the workplace we are talking in the shed and in a vehicle on the way to work or another shed. "It is also offsite, so if you are having work drinks at the quarters or wherever afterwards - that's also a workplace within the definitions of the act. "The obligation applies across the board in all of these circumstances. "And also applies to visitors, so if you have farmers and they bring their wives, it is anyone coming into that shed or environment." In the context of positive duty, what do contractors need to do? Firstly, employers need to understand what sexual harassment, sex-based harassment, discrimination and victimisation is. Ms Lloyd said employers were responsible for leading their team, so it was important to understand what the laws were and how they affected not only them, but their employees. "When we talk about sexual harassment we talk about unwelcome conduct that is of a sexual nature or requests for sexual favours, touching, requesting dates and so forth," she said. "Whereas sex-based harassment is harassment that is targeted at a particular sex. "This could be making sexist comments about a woman because she's a woman or making sexist comments about a man because he's a man. "Then victimisation is about targeting someone because they've made a complaint." Ms Lloyd said a conversation then needed to be had to educate employees, whether that be face-to-face, by Whatsapp or having it displayed in the shed. She said there were resources and guidelines available through the Human Rights Commission, which helped with this. "Have that conversation - as an employer understand what sexual harassment is but then talk to your employees and be serious about educating your employees, " Ms Lloyd said. "It is about actually having that conversation and then thinking about what material can be given to them. "The whole point is to make it easy, so people understand. "Then it goes into training and support - is there someone in your team people can talk to?" The seven standards The commission has released guidelines for complying with the positive duty under the Sex Discrimination Act 1984. The guidelines are centred around seven standards - leadership, culture, knowledge, risk management, support, reporting and response, and monitoring, evaluation and transparency. Examples of practical actions that organisations or businesses can take to meet each of the standards are set out in the guidelines. Ms Lloyd said, as each business is different, it depended on how big a team was, what was going to be practical and cost-effective in the workplace. She said the commission would look at the different standards if there was an investigation or inquiry. How often do employers need to talk to their team about this? Ms Lloyd said it should be looked at similarly to safety or work related issues, whether that be a toolbox or regular meeting once a week or every couple of days. She said if a contractor was starting a new job or visiting a place they hadn't been to before, it was about having that conversation upon arrival. "When everyone's preparing for their first break, sit down and have a chat about general safety as well, " Ms Lloyd said. "That's the first step, and then follow it up a month later when you start a new shed. "It is about consistently and actively taking measures to create a safe space. "It seems obvious that once you've gone through your checklist you then talk to the people coming into that environment, who are your workers, and alert them to what you have found. "Similarly, with positive duty, a checklist is proof that you are doing the right thing if you are audited." Does insurance cover sexual discrimination cases? Having insurance does not diminish positive duty, it just safeguards employers against potential damage and loss against their business if they are sued. Ms Lloyd said sexual discrimination cases, which travelled through the Federal Court, were not cheap and often have adverse outcomes from an award of damages perspective. "If we talk about Work Health and Safety, as you know, that is a serious issue you have to take onboard and consider, " she said, "And that's the way I think employers need to frame their conduct when talking about and implementing measures to prevent sexual harassment, discrimination and victimisation." Is an employer covered if they have put everything in place, but those rules are still broken? Ms Lloyd said an employer would be protected if they have been able to eliminate as much as they can with the resources available to them. She said it was important to remember sexual harassment and discrimination is unlawful conduct. "In terms of positive duty, by taking all reasonable steps and measures given the resources available to you, you will be able to mount a solid defence against any claim. "If you've done your duty positively and it can be demonstrated that you've exercised your role in appropriate fashion, then that will be solid defence." For more information on the positive duty reform and seven standards, go to humanrights.gov.au
By Jessica Brunner 11 Sep, 2023
Farm Weekly - Advice to avoid contract dramas
By Matilda Lloyd 11 Aug, 2023
On 1 July 2023 the Aboriginal Cultural Heritage Act 2021 (2021 Act) came into effect following five years of alleged stakeholder consultation and drafting. The new Act replaced the Aboriginal Heritage Act 1972 (1972 Act), which was deemed to be completely inadequate at providing recognition and protection for cultural heritage by the Joint Standing Committee on Northern Australia in A Way Forward, the Final report into the destruction of Indigenous heritage sites. To improve these deficiencies the section 18 consent process under the 1972 Act was replaced with a four-tier management system for Aboriginal cultural heritage which required proponents to undertake a due diligence assessment prior to undertaking activities, including where ground was to be disturbed, for the purpose of determining whether there was any Aboriginal cultural heritage or risk of harm being caused to Aboriginal cultural heritage by those activities. The four-tier system was also accompanied by a new definition of Aboriginal cultural heritage, a new Directory of information related to Aboriginal cultural heritage as well as harsher fines, stop activity orders, prohibition orders and remediation orders which were introduced as new compliance measures to prevent and remedy harm. The objects of the 2021 Act were to recognise, protect, conserve, and preserve Aboriginal cultural heritage and to manage activities that may harm Aboriginal cultural heritage in a manner that provides clarity, confidence and certainty. However, in the weeks up to and then following 1 July 2023, substantial concerns and uncertainty were raised about the 2021 Act (and Regulations) together with a good dose of misinformation and in particular the impact that the new regime would have on freehold landowners and proponents who wanted to undertake their usual and normal (farming) activities on blocks of land greater than 1100m2. During this period Matilda Lloyd and Phil Brunner attended many seminars, in conjunction with WAFarmers, to explain to the agricultural industry and the broader community the new laws. We attended at WAFarmers Zone meetings and grower organised information sessions in Karridale, Busselton, Esperance, Katanning and Perth. Information was also provided in online workshops and information sessions for grower groups and agricultural consultants. On 8 August 2023 the Premier, Roger Cook, announced that the 2021 Act (and Regulations) would be repealed and that the 1972 Act would be reintroduced with simple and effective amendments. The announcement is welcome news however the Government’s rhetoric is that even the 1972 Act applies to freehold farmland. There is more work to be done to exclude freehold (improved) farmland from the operation of the 1972 Act. Currently the 2021 Act remains in force and will be repealed once the Bill for the amended 1972 Act is passed by both houses of Parliament. Bailiwick Legal extends its thanks to WAFarmers and the PGA for their efforts over the last two months. We will continue to work with WAFarmers and farmers to navigate the amended 1972 Act and press for further changes to the Aboriginal cultural heritage laws in WA. If you would like more information about Aboriginal cultural heritage or how these changes may affect you and your business, please contact Bailiwick Legal on (08) 9321 5451 or by email at office@bailiwicklegal.com.au . By Matilda Lloyd (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
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