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Reported locally under the particularly adventurous headline “Premier keeps Dick in the Dark”, the amendments to Queensland’s land tax laws proposed by treasurer Cameron Dick have been shelved, at least for the time being. Those amendments would have seen the value of interstate landholdings included when calculating the overall land holdings of an owner, resulting in an added liability many owners.

A recent decision of the Queensland Supreme Court considered whether Beatrice Lane in Brisbane City is public or private land. While delving into matters concerning rights of way and easements often involves looking into the history of the land, this matter was unusual in that the relevant facts started from when the subject land was first offered for sale in 1851 – before Queensland was a colony in its own right (December 1859), and when it was still part of the colony of New South Wales, no doubt seen by many Queenslanders as Something Of Which We Do Not Speak. That of itself wasn’t of any real significance in the matter, but the decision does have a fascinating (for some) explanation of the various historical dealings with the property and 19th century land law. https://archive.sclqld.org.au/qjudgment/2022/QSC22-190.pdf QBM Lawyers advise in relation to land dealings and interests, including the obtaining and extinguishment of easements and rights of way. For any enquiries about those matters, contact Peter Muller peterm@qbmlaw.com.au

Many prospective employees are given employment contracts which contain restraints against competition with their employer. Given that these are given at the outset of the employment relationship, the employee might not be thinking about what would potentially happen at its end, and not pay a great deal of attention to the restraints. This however can lead to issues at the ending of the employment. Restraints against competition from employees are only valid to the extent to which they are reasonably necessary to protect the legitimate interests of the employer, assessed as at the time that the restraints were agreed to, but potentially having regard to planned expansion. Usually, this will involve protecting business intellectual property, and preserving the client relationship, for example restricting the employee from taking instructions from a client of the business with whom the employee dealt for a sufficient time to allow a replacement employee to form a relationship with the client. Many restraint clauses however go much further than what is reasonably necessary. It is not uncommon for clauses to provide that the employee cannot work in that industry for a period of months to years, even if it is their profession. The clauses then set out different periods of restraint and different areas, with the intention that if one combination fails as it is excessive, then a lesser one might be valid.  Sometimes there will be dozens of potential combinations of time, area, and capacity.  There is also legislation in New South Wales allowing the courts to impose a lesser restraint. The problem with this for employees is that they will not be sure what is or isnt valid until they are tested in court, at a cost of tens of thousands of dollars (money that the employer can afford but the employee might not) and potentially months or years of stress and risk. Unfortunately, the unfair contracts legislation does not apply to employment contracts.  It is possible that if it did, the restraints in many employment contracts would be taken to be grossly excessive and unfair.  There is also nothing in the Fair Work Act to protect the employees against this situation, whether or not deliberately done by the employer. As a result it is critical that any restraints in employment contracts are considered before they are signed, and that nothing is agreed to beyond what is reasonable. For advice on restraints in employment, please contact Peter Muller at peterm@qbmlaw.com.au

Following on from our article regarding mutual wills https://www.qbmlawyers.com.au/estate-lawyers-gold-coast/estate-lawyers-gold-coast-mutual-wills/, the Queensland Supreme Court has recently considered whether Mutual Wills had come into existence without any express statement in the Will that they were mutual.  Relevantly, this was a matter in which a husband and wife had made “mirror wills” (ie giving their estate to each other, and then giving their estates to the same beneficiaries if they both passed).  A few years after the wills were made, the husband made another will under which, if his wife passed, he gave more of his estate to his relatives than to the relatives of the wife.  The husband died a few years after the wife passed, at which time the relatives of the wife (or at least one of them) was unhappy at the change of the will which resulted in the relatives of the wife receiving less of the estate.  He brought an action claiming that the wills were mutual wills and that the husband could not change his will without the consent of the wife, and that once she lost capacity the wills could not be changed at all.  The action failed.  His Honour Justice Kelly in the Queensland Supreme Court made the following observations about previous decisions concerning Mutual Wills: The starting point is that a Will is revokable and may be revoked by making a later will. At the heart of the doctrine of Mutual Wills is the existence of a formal, legally binding agreement, often between husband and wife, not to revoke the effect of the two wills which are made together and essentially on the same terms; What is needed to establish Mutual Wills is proof that the parties made an agreement to execute their wills in reciprocal terms and – expressly or by implication – they contracted not to revoke (change) those wills; Mutual Wills arise when two people agree to make wills in particular terms and agree that those Wills are irrevocable and that they will remain unaltered; Substantially similar or even identical wills are not Mutual Wills unless there is an agreement that they will not be revoked; Making Wills simultaneously and with similar terms is not enough to establish an agreement not to revoke them; Even though a will (and even a Mutual Will) is revocable, if there is a Mutual Will, then an action arises to make the survivor behave in accordance with the Mutual Will; A common reality is that a married couple might make informal agreements about their wills which are not intended to be legally binding.  The couple might trust each other in point of honour to deal fairly and reasonably in light of the circumstances as they might arise during the survivor’s lifetime; Perhaps most husbands and wives make wills by agreement but they do not bind themselves not to revoke their wills and do not intend to undertake or impose any kind of binding nomination. On the facts that were under consideration, there was not sufficient evidence of an agreement to the effect of a Mutual Will.  As we have discussed in our article on Mutual Wills, a lawyer should be extremely cautious about taking instructions to act on behalf of a couple in making Mutual Wills.  The will – in essence – could result in the surviving spouse being unable to effectively make a new will for decades, in circumstances which are changing.  As an example, the Mutual Will might give assets to beneficiaries who later turn on the survivor and make their life a misery but the survivor will have no ability to remove them from their entitlement to benefit.  There could be other circumstances that change such as a remarriage, a beneficiary becoming bankrupt (as a result of which the trustee in bankruptcy could receive the inheritance, a charity being dissolved or any other number of situations which would ordinarily result in an updating to wills.  If it is good practice to review and update wills every three to five years, then it cannot be good practice to have a will which could bind someone for 30 years or longer. For enquiries regarding mirror or mutual wills, please contact Peter Muller at peterm@qbmlaw.com.au or Jessica Murray jessicam@qbmlaw.com.au