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 A DIY Will may not adapt to these changes, leaving outdated or irrelevant instructions.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.

The Royal Commission has reviewed the nature and extent of child sexual abuse in schools, with alarming findings. Almost one in three of all survivors heard during the Commission’s private sessions were abused in a school setting as a child, with three-quarters of those (75.9 per cent) abused in non-government schools, including Catholic and Independent schools.

Waverley College has faced a number of claims from former students alleging they were abused during their time at school.

Commins Hendriks acts on behalf of survivors of sexual abuse which occurred at Waverley College between the years of 1976 and 1978.

If you attended Waverley College or the Remedial Support Centre in George Street, which was run by Waverley College during this period, we urge you to contact us at 1800 643 779 or email a.mcnamara@chlaw.com.au.

Any information may result in assistance being provided to you and/or others affected. All enquiries will be treated on a strictly confidential basis.

Creating a Will represents an important legal responsibility in a person’s lifetime, appointing an Executor to oversee affairs after death and setting out who is entitled to the Will maker’s assets. Dying without a Will, known as dying “intestate,” means an Estate is distributed in accordance with a set formula, potentially conflicting with personal wishes and incurring higher costs. Intestate estates may even default to government coffers in the absence of close relatives.

Many mistakenly believe that creating a Will is a task reserved for the elderly or those with significant assets. This is not the case.  Every adult, regardless of age or wealth, can benefit from having a Will. Even young adults should consider drafting a Will to ensure their wishes are carried out if their life is cut short.  From appointing guardians for minor children to outlining how an estate is to be distributed, creating a Will offers peace of mind at any stage of life.

Aside from appointing Executors and beneficiaries, a Will can address crucial matters like guardianship for minors, management of assets until children reach adulthood, burial wishes, and specific asset distribution instructions. Regular Will reviews, especially after significant life events like marriage, divorce, property transactions, or changes in relationships, ensure a Will reflects current circumstances.

A comprehensive Will must cover all assets, including land, shares, bank accounts, investments, life insurance policies, and personal effects.  Assets such as business interests held in companies, trusts and partnerships need special consideration to ensure a Will maker’s wishes are achieved.  Other assets, like superannuation and certain insurance policies, may fall outside the scope of Will altogether and require implementation of separate arrangements.

While homemade Will kits exist, a Will professionally drafted by a Solicitor minimizes errors and ensures it complies with all legal requirements.  Errors in the drafting or the form of a Will may lead to prolonged estate administration and legal battles; the costs of which far outweigh the initial cost of professional assistance.  Thoughtful planning and professional guidance can help navigate the complexities of drafting a Will, ensuring it accurately reflects a Will maker’s intentions while safeguarding their assets for the future. 

Our team at Commins Hendriks understands the importance of crafting a Will that accurately reflects your wishes and safeguards your assets. We offer professional assistance in navigating the complexities of Will preparation, ensuring your document complies with legal requirements and addresses your unique needs. Whether you’re considering your first Will or updating an existing one, our experienced solicitors are committed to guiding you through the process with care and expertise.

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

Commencing May 6, 2024, the legal landscape surrounding family matters undergoes a profound shift with the enactment of the Family Law Amendment Act 2023.

Solicitor Director Tara Freeburn heads Commins Hendriks’ family law team and knows the changes coming into play will have an impact on both parents and children. 

“The considerations the Court must have in determining a parenting matter have been quite structured for many years.  However, the landscape is changing with the new reforms, and at least for the foreseeable future, there will be some uncertainty regarding the outcome of contested parenting disputes. We will be reviewing the decisions of the Court with a great deal of interest”.

A notable departure from the prior legal framework, the Family Law Amendment Act 2023 abolishes the presumption of shared responsibility in parenting arrangements. This pivotal change acknowledges the necessity for a more tailored and flexible approach, recognising the distinct circumstances of each family. By discarding the presumption of shared responsibility, there is a focus on the unique dynamics present in individual cases, ensuring that parenting arrangements are devised with a primary focus on the best interests of the child. Without the presumption of equal/shared responsibility, courts are left with a blank canvas to determine what is in the child’s best interest.  This may offer increased protection for victims of family violence as it may be easier to obtain sole parental responsibility orders where family violence has occurred.

There will be a more child-centric approach, with the aim for outcomes that prioritise a child’s safety and well-being. This recognition of the uniqueness of each child underscores the necessity of a personalised approach to parenting arrangements. 

A significant addition, the Family Law Amendment Act 2023 introduces Harmful Proceedings Orders as a mechanism to shield families from detrimental litigation tactics. These orders empower the courts to intervene when one party engages in behaviours that jeopardise the well-being of the child or the fair resolution of the case.

The commencement of the Family Law Amendment Act 2023 on May 6, 2024, signifies a turning point in family law.   The role of a family lawyer is paramount, ensuring parents receive the necessary assistance to navigate these changes and secure the best outcomes for their unique circumstances.   As parents work within these reforms, the guidance of experienced family lawyers becomes increasingly crucial. Tara Freeburn and her team at Commins Hendriks can provide assistance, support, and advocacy, helping parents comprehend the implications of the new reforms and navigate the evolving legal landscape.

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

Rising house prices and interest rates are seeing more parents assisting their children with purchasing their first home. This article outlines the fundamental considerations of advancing funds to your children for this important purchase.

Begin by deciding whether the funds will be a gift or a loan. While a formal document may not be necessary for a gift, it is still beneficial to have a document acknowledging the funds as a gift rather than a loan, and acknowledgement of your child’s receipt of the gift.

With a loan, consider issues such as the presumption of advancement between parent and child, and the statute of limitations that can see loans become unenforceable unless the loan is acknowledged every six years. A Deed of Loan is a useful document that can outline the expectations of the loan and help reduce your risk as lender. Commins Hendriks can provide you with legal advice and assist with drafting a Deed of Loan that addresses these issues and more.

Parents are often concerned monies advanced to their child will be later subject to a family law property settlement in the event the child separates from their partner. The child may wish to consider entering into a Binding Financial Agreement with their partner prior to or during their relationship to quarantine the advance of monies from a property settlement.

It is also important that parents have regard to how the advance of monies will impact their own estate planning – and further – how the loan might be called on to be repaid in the event the parent experiences financial hardship. There are mechanisms such as a loan security over property, a quistclose trust clause in a Deed of Loan, or a Co-Ownership Agreement.

You may opt to charge interest on the loan. If so, your Deed of Loan should be clear about the terms of interest and repayment. Noting that interest will be assessable income.

If you’ve already loaned money to your child, you can still draft a Deed of Loan and a Co-Ownership Agreement after the fact, with your child’s agreement.

When incorporating gifts or loans into your estate planning, consider equalising clauses in your will and explore options like testamentary trusts or forgiving the loan under the terms of your will. Our Estate Planning team are available to further advise you.

Acting as “the bank of mum and dad” requires thought and consideration. We recommend speaking to one of our solicitors to provide specific advice and help draft up these important legal documents. We also recommend discussing the loan or gift with your financial advisor.

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

Article by Rebecca Hartshorne, Solicitor with Commins Hendriks.