Archive for July, 2016

The perils of not making a Will

What do Michael Jackson, Abraham Lincoln, Picasso, Jimi Hendrix, Stieg Larsson and Robert Homes a Court all have in common? You would be forgiven for thinking, not much. But in fact they do—all six died intestate which means, they died without leaving a Will.

Even the rich and famous can fail to plan ahead when it comes to their estate.

What happens if someone dies without leaving a Will?

According to New South Wales law, if you don’t have a legal Will you have died intestate and your estate will be divided according to the rules of intestacy which is set in legislation.

This means that even if a friend or relative is appointed to obtain administration of your estate, the law decides who your beneficiaries are and how your estate is divided.

According to some statistics up to two-thirds of adults do not have a valid Will, potentially their leaving families with serious problems if they die. In all likelihood many more would make a valid Will if they knew what would happen if they died intestate.

Under New South Wales law, if a person dies without a Will and has a spouse who survives them by at least 30 days (including a de facto relationship as set out in the law) the estate is automatically given to the surviving spouse. This is the case even if there are children of the relationship.

After this, seemingly straight forward application of the law, the legislation provides a specific order of distribution of an intestate estate’s assets, depending on the particular situation.

Common scenarios in which an intestate’s assets are distributed include:

Spouse and Children

Where all the children are children of the relationship between the intestate and the spouse, the spouse takes the whole estate.

Children and No Spouse

The children are entitled to the whole estate. If there is more than one child then the estate is distributed in equal shares between the children. Where a child has died before the interstate any grandchildren will take in equal shares the share the deceased child would have taken

No Children and No Spouse

The whole estate passes to the intestate’s parents in equal shares.

No Children, No Spouse and No Parents

Brothers and sisters will take in equal shares the estate provided they survive the intestate by at least 30 days. If a brother or sister does not survive the intestate but leaves children, then that share passes to the children of the deceased brother or sister.

These are just some common examples of how an estate will be divided according to the rules of intestacy which is set in legislation. There are other situations that might arise and your lawyer can advise you about the law depending on your personal circumstances.

Famous People who died without a Will

Famous or not, everyone should have a valid Will. It’s simple to do and it saves your family a lot of money and headaches as illustrated below:

Abraham Lincoln

Probably the most famous person not to leave a Will was Abraham Lincoln, the 16th president of the United States; even though he was assassinated and died unexpectedly in 1865, he was a lawyer.

Jimi Hendrix

In 1970 Jimi Hendrix the famous musician died intestate and left a massive fortune to no nominated beneficiaries. The battle to control his millions took place over 30 years. His estate had the added complication of generating huge income after his death through record sales.


 

Stieg Larsson

More recently in 2004 the Swedish author Stieg Larsson who wrote The Girl with the Dragon Tattoo died without leaving a Will. As a consequence Swedish law dictated that Larsson’s estate was to be divided up between his father and his brother. Sadly his lifelong partner of 32 years, Eva Gabrielsson, received nothing, although the family did grant her ownership of the couple’s apartment.

Robert Holmes a Court

In Australia Robert Holmes a Court, Australia’s richest man before the October 1987 stock market crash, left no Will when he died of a heart attack. At the time his property and shareholdings were worth almost $460 million, while Heytesbury Holdings, the family’s private company, had estimated cash reserves of more than $154 million.

Interestingly, he had carried an unsigned Will with him for 18 months before his death.

Pablo Picasso

Pablo Picasso died in 1973 at the age of 91. He was one of the most famous artists of the 20th century and left behind a fortune in assets that included artwork, homes, cash, gold and bonds.  It took 6 years and $30 million to sort out his estate with his assets eventually being divided up among six heirs.

Michael Jackson

Although a Will was later discovered, immediately following Michael Jackson’s death in July 2009, his mother filed court papers claiming that Jackson died intestate. Like Hendrix, Jackson’s estate continues to generate money. In the years since his death, his estate generated over $242 million.

Summary

As illustrated by the stories above, you’re never too young, or too smart or too powerful, not to need a Will.

To ensure that your estate and your desired beneficiaries are protected into the future and to avoid these avoidable dramas talk to an experienced wills and estates lawyer.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6372 3388 or email richard@richardwisesolicitor.com.au.

Marijuana and the Law

You may well have heard someone say “Marijuana is legal now – it is legal in Canberra, it has been decriminalised in New South Wales. You just aren’t allowed to sell it.” Is this true?

Well, in simplistic terms – no! Marijuana (or ‘cannabis’ as it known in law enforcement circles) is illegal everywhere in Australia. The penalties that one can incur for having, selling or growing marijuana varies a lot from state to state.

We have set out below the state by state position so that the bigger picture of laws relating to cannabis in Australia can be shown.

 

New South Wales

  • Any cannabis offence is a criminal offence and therefore can carry a criminal record.
  • Cautions may be given at police discretion to persons found with up to 15 grams of cannabis, on up to two occasions.
  • Cautions are accompanied by information regarding cannabis usage and a number for an advice line.

Victoria

  • Cannabis offences are criminal offences, but are tried in a specialised drug court rather than a regular criminal court.
  • It is at the discretion of the arresting officer whether to charge a person found with less than 50 grams cannabis or refer them to a ‘diversion’ program for help and education, this discretion by the police is only given on two occasions.

Queensland

  • Possession and use of cannabis is a criminal offence in Queensland.
  • A person found to have less than 50 grams of cannabis must be offered a drug diversion program on their first offence.

Western Australia

  • Cannabis offences are criminal offences in Western Australia and Western Australia has some of the toughest laws in Australia regarding cannabis use.
  • A person found to have less than 10 grams of cannabis or a used smoking instrument (such as a pipe or water pipe) must attend a Cannabis Intervention session within 28 days or they will receive a criminal conviction.

Tasmania

  • Possession of cannabis carries a criminal charge in Tasmania.
  • A person found with up to 50 grams of cannabis can be cautioned, at the police officer’s discretion, up to three times in ten years.
  • The nature of each caution differs, growing in severity from the person being given information in the first instance to the possibility of being sent for treatment for drug use in the third instance.

South Australia

  • Minor cannabis offences have been decriminalised in South Australia. This does not mean it is ‘legal’.
  • Persons who are found to have up to 100 grams of cannabis, 20 grams of hash resin, one non-hydroponic plant (which means it is grown in soil) or smoking equipment are issued with a fine of up to $150 and given 60 days to pay the fine.

Northern Territory

  • Cannabis has been decriminalised in the Northern Territory, however it is still illegal.
  • Persons found in possession of up to 50 grams of cannabis or 1 gram of hash or cannabis seeds or two non-hydroponic plants can face fines of up to $200 and 28 days to pay the fine to avoid a charge.

Australian Capital Territory

  • Cannabis has been decriminalised in the Australian Capital Territory but is still not legal.
  • Persons found with less than 25 grams of cannabis or up to two non-hydroponic cannabis plants are offered the choice to pay a fine or attend a treatment program.

 

Cannabis or Marijuana is not legal in any state or territory of Australia.

Contrary to what seems to be a reasonably popular belief, there is no part of Australia where marijuana and its products are legal to grow, possess or sell. When examined on a state-by-state basis, it is clear that while in some states and territories the personal use of marijuana has been decriminalised, users and possessors still face repercussions if they decide to use or possess any cannabis or cannabis related products.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6372 3388 or email richard@richardwisesolicitor.com.au.

Immunisation and Family Law

 

Some Australian parents have recently begun to question whether to immunise their children, expressing concerns about possible side-effects risks associated with childhood vaccinations.  But what happens if parents are separated and can’t agree?

 

Background

Childhood vaccines, introduced in 1932, are said to have greatly reduced illness and deaths from diseases such as whooping cough, polio, measles and mumps.  However, in recent years immunisation rates have fallen amid some parents’ fears about the safety of vaccines, whether vaccines have been adequately tested and concerns about vaccines’ links to conditions such as autism, sudden infant death syndrome and multiple sclerosis.

 

Approximately 92% of Australian 5 year olds are fully immunised; however, in some areas the figure is lower than that.  Some diseases, whooping cough for example, previously thought to be “extinct”, seem to again be on the rise.

 

The Australian government maintains a register of the vaccinations received by children under 7 years of age.  Parental eligibility for some family payments is now linked to children’s immunisation status, and in some circumstances unimmunised children may not remain at school or daycare if there is an outbreak of a particular disease.  Exemptions can be obtained if there are approved medical reasons why the child is not immunised.

 

Who gets to decide?

It is hoped that parents would agree on whether or not to vaccinate their children, perhaps after discussing any concerns with their family doctor.  But what if they can’t agree?  Who gets to decide?

 

Equal parental responsibility

In the absence of a Court order, both parents, whether separated or not, have equal parental responsibility for their children.  In addition, except in unusual situations, the Court normally orders that both separated parents have equal shared parental responsibility.

 


 

What is equal shared parental responsibility?

Equal shared parental responsibility means that the parents both have the right to consult with each other, hopefully agree on and then implement decisions about their children’s long-term care, welfare and development.  Those long-term issues include decisions such as a child’s name and religion, schooling and major health decisions.  Major health decisions are things like an operation, treating a broken bone, commencing certain medication such as Ritalin, or arranging for a child to see a psychologist.  Whether or not to vaccinate a child probably also constitutes a major health decision.

 

In other words, where parents have equal shared parental responsibility, they share the right to be consulted about and hopefully agree on whether or not to vaccinate their children.  Neither parent has the right to make that decision without consulting with and obtaining the other parent’s consent.

 

What if we cant agree?

For some parents, the immunisation debate can become emotionally charged, as they may approach the decision from different lifestyle, wellness and health care philosophies.  One parent may also be concerned not to lose government benefits if the children are not fully vaccinated.

 

In such circumstances, no matter how much the parents consult with one another, they may never be able to reach agreement.  In addition, the immunisation debate is quite “black and white” – it would not be easy to reach a compromise or middle ground. The parent who opposes vaccination is not likely to agree for the children to receive half their vaccinations, for example; just as the other parent would probably equally strongly believe that the children should get all, not half, their necessary jabs.

 

Can we go to Court?

If parents cannot agree about how to exercise their equal shared parental responsibility, they may have to ask the Court to decide for them.  Before going to Court, they must first try to resolve their issue through mediation with a family dispute resolution practitioner.

 

If the parents still can’t agree, going to Court and asking a Judge to decide may be the only option.  The Court generally prefers not to make these sorts of decisions for parents, but if the parents really cannot reach an agreement, then a Judge would ultimately impose his or her decision about whether or not the children should be vaccinated.

 

Summary

Although childhood vaccines against a range of diseases have been in use for many decades, in some parts of Australia today there is strenuous debate about the need for and safety of immunisation programs.  This debate could be a source of conflict for separated parents.

 

In most situations, parents have equal shared parental responsibility, meaning that parents share the right to consult with one another and hopefully agree on issues relating to their children’s long-term welfare, which would include decisions about vaccinating their children.  However, if they cannot agree, the Court can be asked to decide for them.

 

To find out more about your rights regarding the immunisation of your children, call us on 02 6372 3388 or email richard@richardwisesolicitor.com.au.