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The short answer is no, a person can prepare their own Will, but it is not always a good thing to try to do it yourself.  There are many things which can go wrong if the Will is not properly drawn up, for example, by not satisfying the formal requirements for Wills or leaving partial intestacies (ie where part of the estate is not dealt with).  Another common mistake is to include in Wills things that are not capable of being given by a Will (for example, assets owned by a company or held in a trust).  Some of those things were considered in the recent decision of Re: Jacob Albert Omerod (deceased) [2022] QSC 98.  This matter involved a “home made” Will which was not properly executed and which left a partial intestacy.  As a result, an application was needed to be made to the Supreme Court for orders dispensing with the execution requirements for the Will, under section 18 of the Succession Act 1981.  Briefly, the formal parts for execution of a Will are set out in section 10 of the Succession Act, providing that the Will must be: In writing; Signed by the Will maker or someone else in the presence of and at the direction of the Will maker; Signed in the presence of two or more witnesses present at the same time; Signed by the Will maker with the intention of executing the Will. Commonly with home made Wills, there are deficiencies in some shape or form with the execution of the document.  In the matter referred to, the deficiency was that the Will maker had not signed the Will, even though it had been witnessed.  Section 18 allows the court – if it is satisfied that the person intended it to be their Will (or an alternation) to dispense with one or more of the formal requirements.  In the matter referred to, the court was satisfied that the Will maker intended the Will to take effect as his last Will based on the evidence of its creation and its signing by the witnesses. While it is good that these things can often be cured, the costs involved in rectifying these matters are quite significant.  The evidence to be put before the court can be quite extensive depending on the circumstances, and it is possible that the costs involved would be well in excess of $10,000 in even a relatively simply matter, and potentially many times that amount if it is contested.  As a result, while it is possible for a person to draw and have properly signed their own Will, attempting to do so can lead to serious defects not only in the terms of the Will putting into effect their wishes, but also in respect of its execution. For all enquiries in relation to Wills and estate planning, please contact Peter Muller at peterm@qbmlaw.com.au or Jessica Murray jessicam@qbmlaw.com.au

Often people will see a builder or architect, go through various revisions of plans, then end up with another builder or architect. This can result in claims for compensation for breach of copyright. The Queensland District Court recently considered those matters in claims against a builder and home owner. Worth a read if you are thinking of doing it https://archive.sclqld.org.au/qjudgment/2022/QDC22-116.pdf

It is not uncommon for a loan to be made (eg from a parent to a child, to buy a home or improve it) which is repayable when the borrower sells their home. It is also not uncommon for this loans to come into dispute because the borrower does not sell their home for various reasons. Recently the Queensland District Court considered that kind of arrangement, finding that the loan contract itself was not enforceable given that the repayment was at the discretion of the borrower. The result was that the borrower’s agreement to repay was “illusory”, resulting in the failure of the loan as a binding contract. Given that failure, the loaned amount was immediately repayable in restitution. It is interesting (to some of us with not much going on in our lives) to draw a distinction between this situation – where the repayment date is certain but in the absolute discretion of the borrower – and concepts of uncertainty, where the repayment date cannot be determined because of uncertainty (eg by a formula which does not work). If the repayment date was uncertain, then the loan may be treated as being repayable on demand, and that might have consequential issues with limitation periods. As this issue does pop up frequently, it is worth reading that part of the decision that deals with the legal issues – pages 13 – 17. https://www.sclqld.org.au/caselaw/QDC/2022/110 Please contact our lawyers for advice in relation to debts and loans.

Oddly enough, the ownership of fixtures and fittings is quite often a very hot – and expensive – topic at the end of the lease. The fitout that cost hundreds of thousands to put in can cost plenty to remove, with many landlords wanting premises to be returned to an empty configuration. This can in particular be a problem for tenants who have taken on a lease mid term (and who do not know what condition the premises were in at the outset), and for landlords who bought the premises during the term of the lease. The obligations of the tenant to remove fixtures and fittings and put the premises in a fit state at the end of the lease are generally called “make good” obligations. Many leases contain detailed provisions setting out the tenant’s requirements to make good. Some unfortunately do not. Also, a lot can depend on the difference between a three letter word “may”, and the four letter word “must” as was learned by the parties in a recent Supreme Court decision centering around whether NAB – as tenant – was obliged to remove their fixtures and fittings at the end of a lease, including a strong room. in a nod to the obvious, the Court found that a provision in a lease that said that at the end of the lease the tenant may remove its fixtures and fittings meant just that, not that it had to. The decision also dealt with concepts concerning the ownership of fixtures that have been left behind, and also chattels that have been left behind. These sorts of arguments can be avoided if proper attention is given to the position of the make good obligations, both by landlords and tenants. It is a critical part of the leasing process and one in which care must be taken. For example, some landlords write in their leases that they have the ability to buy fixtures and fittings at a token amount, or that they can keep some things and force the tenant to remove others. Here is a link to the decision. It is only 8 pages, and good reading https://archive.sclqld.org.au/qjudgment/2022/QSC22-073.pdf