Where there’s a will….

24.09.10 25By Michael Callow

A Will must be in writing, signed by the person making the Will (or someone else in the presence of the Will maker and at their direction), with the signature to be made (or acknowledged) in the presence of two witnesses who must then sign the Will in the Will maker’s presence.

The Queensland Supreme Court recently was called on to decide whether a document which did not satisfy those conditions could still be a valid document determining the distribution of the assets of an Estate.

The deceased had made a Will in November 2000, which the Court described as a “complicated Will” naming a number of different beneficiaries including various friends, a hospital foundation, the Red Cross, together with various associations or foundations supporting vision impairment (as the deceased was vision impaired).

In the later years of the deceased’s life she apparently became “increasingly difficult to get along with” with the Court observing that “many of her friends and acquaintances distanced themselves from her as a result”.  However three of the deceased’s friends continued to maintain contact with the deceased, both by visiting her and maintaining telephone contact.

While cleaning the deceased’s house after she had passed away a piece of paper was found, dated 10 October 2009 which stated “because I can’t get to my solicitor I want to change my Will to leave my house to Barbara Castiglione and my shares to Robert and Val Klauke” (being the friends who had maintained contact with the deceased).  The document was signed with the deceased’s name. The Court was obliged to determine whether that informal document was a valid addition to the deceased’s earlier Will.

The Court has power, under the Succession Act to dispense with the formal requirements in relation to a Will if it is satisfied that the document was intended to form the Will, or part of the Will (or alteration of the Will), taking into account the evidence as to how it was signed, and of the person’s testamentary intentions (i.e. how the person proposed disposing of their assets).  The Court was satisfied that the document identified changes that the deceased wished to make to her Will, it being clear that she wished to leave her property to her friends.  The people identified in the document were those friends who had maintained contact with her, with the Court being satisfied that the document was “consistent with what might be anticipated to be her testamentary intentions”.

The Court was also satisfied that the wording of the document constituted a Will, rather than simply being a “note of instructions or a draft Will or a trial run”.  The Court was satisfied that the document represented the deceased’s testamentary intention and ordered that the disposition of those assets proceed in accordance with that document.  I expect the Court was somewhat swayed by medical evidence that the deceased retained capacity to make her own decisions at all times and the Court was therefore prepared to recognize the document as her intentions to provide a gift to those people who had continued to provide support to her in her later years.

Smoke free living?

By Travis Schultz

Against a background of strong epidemiological evidence of the dangers of passive smoking, most Australian smokers have readily accepted the regulations which prohibit them from smoking in the workplace, shopping centres and restaurants but the recent push to prohibit smoking on unit balconies seems destined to stretch the friendship between smokers and their non-smoking neighbours.

In Queensland, smokers are entitled to smoke within their own unit but the body corporate is able to pass a bylaw which prohibits smoking on balconies within the apartment complex or any part of the common property.  The rationale for bylaws of that type is that unit balconies can be in very close proximity to each other and as a result, cigarette smoke can easily drift and insult the nasal senses of an adjoining owner.

As a non-smoker I certainly understand the discomfort that swirling cigarette smoke at the dinner table can cause, but I can’t help but feel for smokers who choose to live in units and who are very quickly becoming outcasts in their own home.  After all, for the sake of other family members, you’d think that smokers who live in unit complexes would do the right thing by co-inhabitants and go outside to smoke.  But if body corporate bylaws prevent them from doing that or smoking on any part of the common property, where do smokers succumb to their nicotine habit?

I’m not sure I have a solution to the problem but it certainly sounds like a recipe for heated debate during body corporate meetings!

Devil’s Lair Cabernet Sauvignon 2010

devils lairby Travis Schultz

It must be tough being a winemaker.  After all, not only is your livelihood subjected to the vagaries of climate, weather and regional nuances, but your economic survival depends on you producing a range of popular wines at all price points on the consumption spectrum, yet your reputation relies on you consistently producing flagship wines of excellence!

In some regions, the challenge seems insurmountable, while others, like the Margaret River region in Western Australia, have a distinct advantage.

And there’s no better example than Devil’s Lair – a well known winery established in 1982.  In their red range, the Hidden Cave” Cabernet Shiraz 2011 at $20-$23 is delightfully drinkable and ably hits the mid range price point.  There are abundant savoury plum characters at the front with a mocha and olive skin edge through the middle while later, an oak propelled grippiness grabs the back of the throat.

At the next level, the estate range Cabernet Sauvignon (2010) is a worthy ambassador for the brand as it is the epitomy of balance.  The current vintage is once again elegant but shows lively fruit that lifts as it crosses the palate, has refined tannins for support and displays finesse that is rarely seen at its $45-$50 price point. Gee, they’ve put good fruit in this!

Australia may be the lucky country, but with its abundance of quality Cabernet Grapes, and ideal growing climate, Margaret River has won viticultural lotto!

Jardim Do Bomfim 2009 Pinot Noir

Jardim Do Bomfim Pinot NoirI’ve often said that there’s no such thing as a good cheap Pinot Noir, but having tried the Jardim Do Bomfim 2009 Pinot Noir, I suspect that I might have to accept that I could have been wrong!

The unusual name “Jardim Do Bomfim” means “Garden of Good End” and the name is fitting for this wine given the strength of its finale.  You’d have to say that it’s only a medium bodied wine, but it is mouth filling and some warmth at the back gives the erroneous impression of a higher than average level of alcohol.

In the glass, the Jardim Do Bomfim is slightly cloudy, but as the flavours develop across the palate, the ripe but sweet cheery undertones embolden, and a spicy edge develops to carry the fruit into a cedar lined finish.

There are none of the dominant (and sometimes astringent) oak characters that often spoil the lower cost Pinots, although it’s probably true that in the Jardim Do Bomfim, there is very little by way of tannic backbone for support.

It might not be the best Pinot Noir going around but at the pricepoint, it’s pretty good value and more than a worthwhile quaffer.

Travis Schultz, is Managing Partner of Schultz Toomey O’Brien Lawyers and lover of fine food and wine.

Make sure you use an Accredited Family Law Specialist

Leisa Toomeyby Leisa Toomey
As Grant Hackett tries to sue his lawyers for failing to ensure a Binding Financial Agreement (pre nuptial agreement) was prepared correctly it is a timely reminder that these documents must be carefully written, prepared and executed – this also means that the other party must also receive advice to ensure they understand the implications of the agreement they are signing.  The ageing couple in the story below also found themselves in a situation where the husband organized …his separation and divorce with the ex wife compelled to accept the agreement he had his lawyers draw up – that was until 26 years later when she sought ownership of the house he had promised to put in her name.  He didn’t keep the house and she ended up with $1.2million.
The bottom line is you should seek the expertise of an Accredited Family Law Specialist who has been trained in this highly complex area of Family Law as it is something you simply cannot afford to get wrong.  At Schultz Toomey O’Brien Lawyers we have accredited family law specialists that can help you get it right the first time, please contact us for an initial free consult.


Ratings agencies finding themselves in the line of fire

Travis Schultzby Travis Schultz, Managing Partner


Ratings agencies around the globe will be trembling in their corporate boots following the decision of the Federal Court on 5 October 2012, which found that global agency Standard & Poor’s had failed in its duty of care to investors and resulted in 13 local Councils losing about $16 million.

Prior to the global financial crisis hitting in 2007, a number of local Councils had invested in financial products known as “Constant Proportion Debt Obligations” (CPDOs).  Standard & Poor’s had given these investments a AAA rating.  These particular products had been created by investment firm ABN Amro and the product had been “sold” to the Councils by investment advisor firm Local Government Financial Services (LGFS).  In her Judgment, Justice Jayne Jagort found that all three Defendants were equally liable and ordered them to pay about $30 million in damages to the investors.

The decision is an important one because it will have a very wide application to a large range of business who, in the course of their profession, provide opinions that are available to consumers.  Standard & Poor’s expressly disclaimed any liability in applying ratings to products as they said it was no more than their “opinion” yet that disclaimer wasn’t sufficient to enable them to avoid liability when they knew that their opinion would be relied upon by potential investors.

Given that many investors have lost hundreds of millions of dollars in the wake of the GFC, there may be a lot more bad news coming for ratings agencies around the world in view of this decision.


Eldridge Estate Pinot Noir 2009

Good Pinot is rarely cheap, and cheap Pinot is seldom worth drinking, but at less than $50 a bottle, the Eldridge Estate 2009 Pinot Noir is a relatively inexpensive, but equally satisfying experience as any found in Burgundy in Central France, the world’s most renowned Pinot district.

The winemakers, David and Wendy Lloyd, have carved a niche for themselves in the Mornington Peninsula Pinot viticultural scene where their vineyard has become one of, if not the leading producer of quality Pinot Noir in the Pinot focused region.

In the glass the 2009 version is bright, vibrant and lively.  And these youthful characters dominate the front of the palate before perfumed cherries and vanilla weigh in and some fine grained oak navigate the flavours across the back.  The power of the wine is surprising and there’s none of the leaf litter or earthy undertones that are often seen in Australian Pinot.

It’s dry, but with a lingering strawberry sweetness that belies the herbaceous nose, soft tannins and French oak that makes it so viticulturally sound.

I guess it’s not surprising that James Halliday rates Eldridge as a 5 star winery!