Many people believe writing a Will guarantees their final wishes will be carried out exactly as planned. In accordance with the provisions of the Succession Act (NSW), certain individuals may have the right to challenge a Will if appropriate provision has not been made for them. These claims—commonly known as family provision claims—can significantly impact the distribution of an estate and the wishes of the deceased.

Succession laws exist to ensure people who were dependent on the deceased, such as spouses, children, or other close family members, are not left without reasonable financial support. While the legislative provisions serve an important social function, they can also create uncertainty in estate planning, particularly in families with complex relationships, blended families, or estranged members.

Succession planning is about more than just drafting a Will—it’s about thinking ahead, identifying potential risks, and ensuring that your estate plan is both legally sound and practical. According to Julianne Carroll, Solicitor Director at Commins Hendriks, “A well-drafted Will is only one part of the picture. It’s also important to consider who might challenge your Will and how you can reduce the risks of any future claim.”

Julianne recommends open and early communication with family members, documenting the reasons if there are to be unequal gifts, and seeking professional advice where needed. In some cases, leaving a written statement or a recording with your Will explaining your intentions can help reduce the likelihood of a successful challenge.

Courts consider a range of factors when deciding family provision claims, including the financial needs of the person making the claim, their relationship with the deceased, and the size of the estate. It’s more important than ever to take a thoughtful approach.

If you’re reviewing your Will or helping a loved one with theirs, understanding succession laws can be a key part of safeguarding your wishes. Sound planning today can reduce the risk of disputes tomorrow and ensure your legacy is protected.

Reach out to Commins Hendriks if you need any legal assistance.

Understanding Landholder Duty and when it applies is important to companies and unit trusts that classify as a Landholder. 

1. Landholder Duty is essentially stamp duty that applies to indirect property transfers, such as share transfers in a company or transfers of units in a unit trust that own real estate.
2. Who is a landholder? A landholder can be any of the following who holds land (landholdings) in NSW with an unencumbered land value of $2 million or more:
   • Private unit trust scheme or private company (Private landholder) or
   • Public unit trust scheme or listed company (public landholder)
3. What if the unencumbered value of property is less than $2 million? The threshold for landholder duty is $2 million or more. If the unencumbered value of landholdings owned by a private or public landholder is less than $2 million, landholder duty is not applicable.
4. When does landholder duty apply?  Landholder duty applies when there is an acquisition of a significant interest, through the acquisition of shares or units, in a company or unit trust that has landholdings valued at over $2 million.
5. What is classified as a “significant interest”?  A significant interest means that if all the property is distributed, you are entitled to:
   • For acquisitions made on or after 1 February 2024
     • 50 per cent or more of the property in a ‘private landholder’, or
     • 20 per cent or more of the property in private unit trust schemes, or
     • 90 per cent or more of the property in a ‘public landholder’
   • For acquisitions made prior to 1 February 2024
     • 50 per cent or more of the property in a ‘private landholder, or
     • 90 per cent or more of the property in a ‘public landholder’
   • Acquiring a significant interest does not have to occur in one event. For instance, if you already hold  45 per cent of the shares in a landholder that is a private company and then acquire another five per cent, you may be liable to pay landholder duty.
6. How is landholder duty calculated?  It is calculated at the same rate as transfer duty. It is calculated on the unencumbered value of the landholdings and goods of the landholder at the time a relevant acquisition is made, as well as the number of acquisitions made in a ‘statement period’ (being the period commencing three years before the date of the relevant acquisition and ending on the date of the relevant acquisition).
7. Could I be exempt from landholder duty?  Some examples of possible exemptions, concessions and reduction in duty include:
   • Changes in trustees;
   • When an interest acquired is due to a deceased person’s will;
   • Landholdings consisting of primary production land;
   • Where an interest is acquired as a result of the break-up of marriage and other relationships.
8. When does it have to be paid? Like stamp duty, landholder duty must be paid within three months from the date of making a relevant acquisition. Interest will be applied to any late payments.

Article by Miranda Smith, Solicitor with Commins Hendriks.  Please contact Commins Hendriks to make an appointment for advice specific to your situation. 

The advice provided above is general in nature and is not formal legal advice.

Creating a Will is essential for ensuring your estate is managed according to your wishes after death. Many people turn to homemade Wills, Will kits, or online Will creation services to save time and money. While these do-it-yourself (DIY) solutions may seem appealing, they carry significant risks that can lead to unintended consequences. This article explores the potential pitfalls of creating a Will without professional legal guidance.

Legal Validity – One major concern with DIY Wills, is whether they meet the legal requirements for validity. A valid Will must comply with specific requirements that vary by jurisdiction. For example, many jurisdictions require the Will to be signed in the presence of two witnesses who are not beneficiaries. If these formalities are not followed, the Will can be invalid. If deemed invalid, it can create difficulties and additional expense to be rectified, or at worst your estate may be distributed according to intestacy laws, potentially disregarding your wishes entirely.

Unclear Language – There is a significant risk of using vague or unclear language in DIY Wills. Legal language must be precise, and small errors in wording can lead to confusion. Without the expertise of a lawyer, a DIY Will might create more problems than it solves. Courts could struggle to interpret your intentions, leading to delays, disputes, additional expense and potentially litigation among your family members or beneficiaries.

Incomplete Asset Consideration – DIY Wills may not account for the full range of your assets. People often overlook joint property, digital assets, or items including life insurance policies and superannuation accounts that have designated beneficiaries. DIY solutions can overlook the effect of jointly held assets or designated beneficiaries and the inclusion of provisions to deal with such assets.  As a result, certain assets might not be distributed as intended, or parts of your estate may be left unaccounted for. Without professional guidance, it is easy to miss important details, leading to confusion and unintended outcomes.

Lack of Flexibility – DIY Wills often offer limited customisation and may not account for changes in your personal circumstances. Life changes, such as marriage, divorce, the birth of a child, or acquiring new assets, often require updates to your Will. A DIY Will may not adapt to these changes, leaving outdated or irrelevant instructions. Additionally, often DIY Wills do not handle special circumstances like trusts for special needs, charitable donations, or even provision to care for pets.

Moreover, tax laws and estate planning rules change over time and an understanding of these laws is required when formulating a Will. A Will created using a kit or online service might not account for tax implications, potentially resulting in unnecessary taxes on your estate or unintended tax burdens for beneficiaries. 

Family Disputes – One significant pitfall of DIY Wills is the potential for family conflict. Close relatives, such as spouses or children, may have legal rights challenge your Will. DIY solutions often overlook these legal considerations and perhaps increasing the likelihood of disputes and challenges.

Conclusion – While DIY Wills seem like a cost-effective solution, the risks usually outweigh the cost savings. To ensure your Will is legally sound and reflects your wishes, it is advisable to consult with a legal professional. Commins Hendriks is happy to assist, offering peace of mind to safeguard your assets and protect your loved ones from unnecessary legal complexities.

Tammy Holzheimer – Director. This advice is general in nature and should not be taken as formal legal advice.

The High Court of Australia handed down a landmark decision this month in the case of Bird v DP (a pseudonym) [2024] HCA 41, which will significantly impact the liability of institutions and organisations who engage volunteers and independent contractors in relation to claims of historical abuse.

The Case

The case dealt with the abuse inflicted by a Priest who was appointed by the Roman Catholic Diocese of Ballarat, in 1971 in Port Fairy, Victoria. The Plaintiff, DP, was sexually abused by the Priest during pastoral visits to DP’s family home on two separate occasions. While it was found that the Diocese had significant authority over the Priest and his work, and the Priest’s role was “integrally interconnected with the fundamental work and function of the diocese”, he was not employed by the Diocese when he abused DP.

The main issue dealt with by the High Court was whether the Diocese could be found to be vicariously liable for the abuse of the Priest, or in other words – could the liability of the Priest be attributed to the Diocese despite the absence of a relationship of employment?

The Court’s Decision

The Court unanimously sided with the Diocese, finding that they were not liable for the Priest’s actions. The Majority decided that a relationship of employment is a necessary element of vicarious liability, and that this will not extend to relationships “akin to employment”. In doing so they diverged from a number of other Common Law jurisdictions such as Canada and England.

The Majority also held that for the Diocese to be liable for the Priest’s actions as a ‘true agent’ of the religious institution, the acts committed must have been expressly or implicitly authorised by the Diocese, which was not satisfied in this case.

Implications of this Decision for Historical Abuse Claims

The Court’s decision is significant as it affects the capacity for survivors of abuse to attribute liability to the institutions and organisations that their abusers were engaged under, when that engagement does not satisfy a relationship of employment. This could allow these institutions to defend claims for the significant harm which occurred under their watch.

The decision, however, does not impact the direct liability of these institutions for the harm occurred as a result of historical abuse. When an institution or organisation owes a duty of care to individuals in their care, it may be found to be negligent in failing to prevent harm from occurring, and therefore liable for the harm caused. This type of liability exists even if the harm is inflicted by someone who is not employed by, or a ‘true agent’ of the institution/organisation.

We recommend that survivors of abuse take the important step to seek legal advice, now more than ever, and we stress the importance of being informed about your legal options in relation to an historical abuse claim. Whilst this decision is a disappointing setback from the High Court, we will continue to advocate for our clients in seeking justice for the abuse they have suffered and will take the important step of supporting the case for necessary regulatory reform.

The ‘Right to Disconnect’, a new workplace right, has been implemented through the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. This took effect on 26 August 2024 for non-small businesses and will come into force on 26 August 2025 for small businesses (those with fewer than 15 employees). To ensure compliance and maintain clear boundaries between work and personal time, businesses need to adapt accordingly. Below are just three action items for businesses to keep in mind:

1. Review Employment Contracts 

It’s important to review existing employment contracts to clarify expectations regarding after-hours availability and ensure compliance with the applicable employment awards. Specify when employees are required to be contactable, if at all, outside regular working hours. Any updates to contracts should ensure they reflect these new legal requirements while aligning with operational needs.

2. Develop a Clear Disconnect Policy 

Establish a policy that outlines when after-hours contact is appropriate and which roles may require it. The policy should also specify renumeration for those expected to respond after hours. It should also provide employees with a procedure to follow or who to contact if they have any concerns with contact outside their working hours. A well-defined policy will help manage expectations and provide consistency across the business.

3. Engage in Staff Consultation 

Consulting with staff helps identify current after-hours practices and determine what is necessary going forward. These discussions can help shape policies that balance business requirements with the right to disconnect.

For assistance with reviewing contracts, developing policies, or consulting with staff, our Employment team is available to help you implement changes smoothly.

If you are an employee with any queries or concerns surrounding your workplaces’ policies or your employment rights with respect to this new ‘Right to Disconnect’, our Employment team is available to assist.

Eden Weeks – Solicitor

This advice provided is general in nature and should not be taken as formal legal advice.

In 2018 a former teacher from Junee High School, Mr Carl William Doherty, was convicted of 22 historical child offences which occurred between 1965 and 1981.

Doherty admitted to the sexual assaults on seven different students during this time, which occurred in various settings such on camping trips, in showers, at Doherty’s parents’ home and in his car. In the sentencing decision, the Judge noted that Doherty used his position as a trusted teacher to gain access to and groom children, and then significantly breached that trust, causing substantial and long term affects on the survivors.

While the conviction involved abuse against seven complainants who were all students at Junee High School, the full extent of his abuse is not known and there are likely other survivors affected.

Commins Hendriks is calling for witnesses who have information regarding Carl William Doherty, or events at Junee High School during this time. Any information may result in assistance being provided to you and/or others affected.

Witnesses and survivors of abuse play an essential role in holding perpetrators accountable. Even if years have passed since the incidents occurred, your evidence can help build a stronger case, shed light on systemic failures, and protect others from experiencing similar harm. No matter how long ago the abuse may have taken place, it’s never too late to come forward. All enquiries will be treated on a strictly confidential basis.

At Commins Hendriks, we believe in making a difference beyond the courtroom, and this October, our team is proud to participate in the 57km Walk for Breast Cancer, supporting the Cancer Council’s efforts to raise awareness and funds for breast cancer research.

This initiative holds special significance for our staff as they come together to walk in solidarity with those affected by breast cancer, a disease that touches the lives of many Australians every year. Through this event, our team is doing more than just walking—they are helping drive a conversation about the importance of breast cancer awareness and fundraising for crucial research.

Why We’re Walking

Breast cancer remains one of the most common cancers affecting women in Australia, and its impact extends far beyond those directly diagnosed. It affects families, friends, and communities. By taking part in the 57km walk, Commins Hendriks is not only raising funds for research but also standing in solidarity with everyone who has been affected by this disease.

Our staff members, many of whom have close connections to people impacted by breast cancer, are stepping up to make a difference. This walk is about supporting each other, raising awareness, and helping fund life-saving research so that future generations can benefit from improved treatment options and early detection methods.

Our Team’s Commitment

The team at Commins Hendriks is passionate about giving back to the community, and this event allows us to do so in a meaningful way. Whether it’s walking solo or as part of a group, our staff members are collectively taking on the challenge of completing 57 kilometres in support of the cause.

It’s not just about clocking up the kilometres—it’s about raising awareness for a disease that affects so many Australians. Our involvement in the walk is a reminder that, by working together, we can create real change and support those who need it most.

How You Can Support

As we lace up our shoes and hit the pavement for this important cause, we invite our community to join us in supporting the Cancer Council’s breast cancer research. You can help make a difference by visiting our fundraising page and contributing to our efforts to fund research and support services for those affected by breast cancer.

Together, we can continue to raise awareness, encourage early detection, and fund research that will help reduce the impact of breast cancer on individuals, families, and communities across Australia.

You can learn more about our fundraising initiative and support the cause by visiting our official page: Commins Hendriks Pink Ribbon Fundraiser.

Keeping the Conversation Going

As we continue our walk for breast cancer awareness, we encourage everyone to keep the conversation going. Breast cancer is a topic that deserves attention not only during Breast Cancer Awareness Month but throughout the year. We hope our efforts inspire others to take action, whether it’s through donations, participating in awareness activities, or simply supporting loved ones who are navigating this journey.

At Commins Hendriks, we’re proud to do our part in supporting breast cancer research, and we’re committed to walking alongside our community every step of the way.

The experienced compensation team at Commins Hendriks offers support for clients in the Riverina region who have undergone medical treatment in Canberra and believe they may have a medical negligence claim. With an office in Canberra, the firm is well-equipped to assist clients seeking justice for inadequate medical care received in the ACT.

Stacy Moses, CEO of Commins Hendriks, highlighted the growing need for legal representation among Riverina residents who receive medical treatment in the Canberra region.

“We found that a lot of clients in the Riverina travel to Canberra for specialist treatment and unfortunately, when things go wrong, as they sometimes do, they need representation for Canberra-based claims,” Moses said. “Our Canberra office was established approximately 10 years ago and supports our clients who need lawyers with knowledge and experience in running claims based in Canberra.”

The firm’s Canberra office is strategically positioned to provide clients in both the ACT and surrounding NSW regions with specialised legal services for medical negligence claims. Typical medical negligence claims can include a range of issues, from surgical errors and misdiagnosis to birth-related injuries and delays in treatment.

No-Win, No-Fee – No Upfront Costs

Understanding the financial pressures clients may face, Commins Hendriks offers a no-win, no-fee arrangement. This means that clients won’t have to worry about any legal fees unless their case is successful. Additionally, the firm covers all disbursements during the course of the claim, so there are no upfront costs for clients to manage.

“Our no-win, no-fee arrangement, combined with covering all disbursements along the way, ensures that our clients can focus on their recovery without the stress of financial burdens,” Moses added.

A Decade of Service in Canberra

Commins Hendriks’ Canberra office has been operational for nearly a decade, providing a valuable resource for clients who need representation in the ACT. The office enables the firm to offer comprehensive legal support, including in-person consultations, for those who have suffered due to medical negligence.

The firm encourages anyone who has received treatment in the Canberra region and is concerned about the quality of their care to seek legal advice.

A Free Consultation Awaits

Commins Hendriks offers free, no-obligation consultations for anyone who believes they may have grounds for a medical negligence claim. With a deep commitment to their clients and a passion for justice, the firm continues to stand up for those in need of experienced legal representation.