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Speaker 1: Let's talk the law and if you've got any questions

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Speaker 1: to Tim Downey for Tim Downey and Caitlin Walkington from

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Speaker 1: Johnston Withers Lawyers. When experience matters, Trust Johnston Withers Lawyers

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Speaker 1: over seventy five years legal experience. Johnston Withers dot com

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Speaker 1: dot AU. Good morning to you both. Thank you for

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Speaker 1: coming in overwhelming two lawyers in the studio this week.

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Speaker 2: Thanks for having as matter sight. You've been charged twice.

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Speaker 1: I reckon, how about that? Let's start with you Tim

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Speaker 1: and a story that we had on five double A

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Speaker 1: News about a week ago and I loved this story.

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Speaker 1: I don't know why, but it makes lawyers you know.

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Speaker 1: Tell me you love being a lawyer sometimes well. Self

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Speaker 1: described enthusiastic user of trampolines has been awarded seven hundred

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Speaker 1: and fifty thousand dollars in damages in the Queensland Supreme

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Speaker 1: Court after hurting his foot bouncing on a trampoline. Forty

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Speaker 1: one year old forty one fracturing his foot what are

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Speaker 1: you doing on a trampoline? When he jumped on the

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Speaker 1: new Oval zero Dash ninety two model spring free trampoline

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Speaker 1: at his sister's house in twenty seventeen. He successfully suit

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Speaker 1: the company for their lack of warning. I'm jumping on

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Speaker 1: the cleats near the edge of the mat. What did

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Speaker 1: you think would happen?

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Speaker 2: Well, Matthew, let's face it, trampolines are dangerous. So look,

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Speaker 2: this is a really interesting case for me because we

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Speaker 2: deal with a lot of product liability type claims. So

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Speaker 2: I get calls from people who they may have suffered

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Speaker 2: a burn because the heat pack that they've brought that

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Speaker 2: they plug in hasn't worked, or the gas heater blows,

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Speaker 2: or the toaster burns their toast, you name it. Or

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Speaker 2: they they go to open the coke can and the

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Speaker 2: thing comes off and they can't get the coke out.

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Speaker 1: You know, people sue for that.

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Speaker 2: I've had We've had in our fridge of Mars Bar

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Speaker 2: which had a tiny little rope coil thing in it

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Speaker 2: forever because someone wanted to sue over that. I mean,

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Speaker 2: you do get extraordinary queries about products claims and mechanical stuff.

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Speaker 2: You know, cars that blow up will not yet, cars

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Speaker 2: that have defect all of these things, so they all

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Speaker 2: fall under in the first instance product liability claims. And

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Speaker 2: we have a law in Australia Competition and Consumer Act

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Speaker 2: and that protects every Australian against a faulty product. So

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Speaker 2: a forty one year old trampling enthusiast, in this case,

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Speaker 2: mister Peter Forrestenko, who was at his sister's house, as

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Speaker 2: you say on Christmas Day and as you do on

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Speaker 2: Christmas Day, decides to give her spring free tramp a

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Speaker 2: go because he's never been on one. So he jumps on,

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Speaker 2: bounces once, bounces twice and within about thirty seconds he

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Speaker 2: jumped a bit higher than he thought, lands on a

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Speaker 2: bit of the side and banngo bingo does his fifth

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Speaker 2: metatassal fracture, which is called a dancers fracture. Strangely, so

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Speaker 2: at that point you would say, as you as you're

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Speaker 2: pointing out, I mean, isn't it? Isn't it? User beware?

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Speaker 2: So here we get into the intricacies of product liability.

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Speaker 2: So in this case, this is a trampoline that advertises

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Speaker 2: itself as being totally safe. Right, So basically, if we

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Speaker 2: think about back in the seventies with the trampolines we're on,

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Speaker 2: which were which would have your sent to the Women's

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Speaker 2: and Children's hospital in ten.

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Speaker 1: Minutes, the giant springs of the giants.

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Speaker 2: Springs that would crash you land half in, half out. Yeah,

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Speaker 2: So these of course don't have that, and they're advertised

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Speaker 2: as being very very safe. But when you get into it,

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Speaker 2: as the judge has to and looks at it very closely,

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Speaker 2: there are cleats that are around the outside of the trampoline,

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Speaker 2: which is obvious because you've got to have some way

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Speaker 2: of connecting. Yeah, of course, and the cleats they sit

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Speaker 2: up like something like effectively a centimeter, all right, But

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Speaker 2: the experts in this gave evidence that, to be honest,

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Speaker 2: that's enough that centimeter or so that if you land

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Speaker 2: with your foot slightly inverted, that's a cause of injury.

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Speaker 2: That could cause an injury. So in a sense she's found, okay,

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Speaker 2: well there is this danger there. So therefore that in

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Speaker 2: itself isn't an effective product. But it must come with

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Speaker 2: a warning. If you don't come. If it doesn't come

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Speaker 2: with a warning, then it becomes a defective product. Right. So,

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Speaker 2: and we see defective you know. We every time we

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Speaker 2: open anything, okay, we get this long list of things

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Speaker 2: that this could do, this and that, and all most

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Speaker 2: of us chuck it out. We don't read it, and

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Speaker 2: the trampoline producer did say that, you know, well, there's

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Speaker 2: all sorts of warnings in the thing, but the judge felt, no,

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Speaker 2: this needed to be elevated and there should be a

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Speaker 2: warning on the netting to say, if you jump on

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Speaker 2: the cleats on the side, you could cause this could

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Speaker 2: cause injury. And that was her finding. So he got

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Speaker 2: the three elements. You know, the manufactured you know, was

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Speaker 2: it manufactured by the by the person who's suing, yes,

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Speaker 2: was it an effective product? Yes? And did it cause

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Speaker 2: the injury? And yes, it caused the injury. Now, the

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Speaker 2: injury itself was quite it was actually quite nasty, and

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Speaker 2: in the end he had to have surgery to have

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Speaker 2: the foot pinned.

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Speaker 3: Well.

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Speaker 2: Then as night follows day, he sustained an adjustment disorder,

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Speaker 2: so depressed mood, and being a physiotherapist, he's got a

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Speaker 2: stand all day. So it affected his business and so forth.

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Speaker 2: So to be honest, he claimed three point nine million.

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Speaker 2: The judge was not interested in that figure, felt that,

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Speaker 2: you know, he wasn't a little bit of exaggeration, and

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Speaker 2: so forth going on in her findings, and she brought

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Speaker 2: it back to seven hundred and forty, which was about

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Speaker 2: three hundred and eighty thousand for his past losses over

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Speaker 2: the previous six years. So when you look at it

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Speaker 2: like that, you know, she say eighty odd thousand a

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Speaker 2: year lost, and then she awarded him two hundred and

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Speaker 2: twenty thousand for future losses because for the rest of

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Speaker 2: his working life as a physio. Right, So it's not

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Speaker 2: a crazy judgment when you really cut these things down.

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Speaker 2: I suspect it might be.

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Speaker 1: Appealed by who the Peter wanting more money or the

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Speaker 1: well that happens the trampoline people want.

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Speaker 2: That does happen, and it could, but more likely by

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Speaker 2: the trampoline people potentially. I think it's kind of a yeah,

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Speaker 2: it's a difficult one. Look, I get the bottom line

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Speaker 2: is it is advertised as a really safe product. So

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Speaker 2: that's that. Look, we look at product liability claims all

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Speaker 2: the time. They're not that easy. But you know, this

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Speaker 2: is one that was successful the at the end of

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Speaker 2: the day, if he had not succeeded on that, there

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Speaker 2: was also the question of negligence and was it a

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Speaker 2: negligent product. I don't think they would have exceeded on that.

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Speaker 2: And we're smoking about this before. There's it's this with footballers.

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Speaker 2: There's this inherent danger thing. As an adult you know that.

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Speaker 2: You know there's an inherent danger if you are going

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Speaker 2: to jump on a trampoline or do whatever. Yes, but

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Speaker 2: our courts say, yeah, well there's that. But also if

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Speaker 2: there's warning, if there's risks your you that aren't apparent,

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Speaker 2: you should be told about them.

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Speaker 1: There, we are all right, Caitlin. Before we come to

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Speaker 1: you on our next topic, we've got a couple of

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Speaker 1: people waiting on the line and they're both WILL related questions.

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Speaker 1: So this is right in your wheelhouse. See what I

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Speaker 1: did there? Huey at Port Adelaide, Hello, Hueye.

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Speaker 4: Your guests there, Yeah, hello, listen with Will's We've had

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Speaker 4: to answer about twenty odd years now. And the person

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Speaker 4: who's been doing at WILL is about to retire because

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Speaker 4: he works with conjunction of another lawyer firm, so two

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Speaker 4: working together. I don't know what happens that WILL, if

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Speaker 4: it's left there or that's signed over by our current

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Speaker 4: lawyer or to the new firm that he works with,

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Speaker 4: because stand hands him dies at the meantime, or retires completely.

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Speaker 4: He's in the process now of retiring. We've got to

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Speaker 4: restruct our will because we've got changing service sciences e g.

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Speaker 4: Grandkids at the moment, So everything's happening in the past

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Speaker 4: two decades, So what's the best thing to do there? Well,

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Speaker 4: what's the certain stands as having that changed though? Does

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Speaker 4: he have this, say to handle over to the other

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Speaker 4: lawyer firm, or do I designate and use some discretion

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Speaker 4: to say yes, I have that, or do I change

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Speaker 4: it to another law firm.

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Speaker 3: It's a good question, Hurey. You should make sure that

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Speaker 3: you know where your original will is at all times.

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Speaker 3: It's quite a common thing to leave it with a

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Speaker 3: solicitor in their ded safe so that you know it's secure,

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Speaker 3: but you know you need to know where the original

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Speaker 3: is in the event that you've got a copy and

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Speaker 3: you can't find that original. A copy is not going

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Speaker 3: to satisfy the probate registry. So when you do a

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Speaker 3: will with a law firm, usually the will retains in

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Speaker 3: the possession of the law firm, even if the solicitor

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Speaker 3: were to retire or to move on. So I would

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Speaker 3: expect in your circumstances that it remains at the law firm.

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Speaker 3: But you should ask that question, and then if you

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Speaker 3: do have updates, you need to make sure that those happen,

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Speaker 3: and then you make the judgment calls to whether or

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Speaker 3: not you would like to leave that will with the

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Speaker 3: law firm or you would like to take that home

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Speaker 3: with you. The Law Society now offers a service where

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Speaker 3: you can have wheel tracking. It's a will registry through

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Speaker 3: the Law Society of South Australia where you can give

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Speaker 3: details about that you've done a will on this date

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Speaker 3: and whether original is held to help you know, love

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Speaker 3: ones and family members be able to find that after

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Speaker 3: you pass. So I recommend that to all our clients

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Speaker 3: at Johnston with Us that they register their will.

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Speaker 1: With the Law Society Will Registry. Yes, it is free.

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Speaker 2: Good idea.

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Speaker 1: Good on you. A good question, Thank you, Thank you.

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Speaker 1: Graham at Craigmore morning, Graham, Yeah.

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Speaker 4: Good one.

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Speaker 5: Guys have a slight issue with a retaining wall in

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Speaker 5: a sense in that about two years ago I said

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Speaker 5: to my neighbor, we should really put a retaining wall

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Speaker 5: along there, because your property is about five hundred bill

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Speaker 5: higher than what mine is and it's going to flood

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Speaker 5: if it rains, and which it has done in the

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Speaker 5: couple of years past. But anyway, I totally fort all

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Speaker 5: about it's been trying to build another house down south

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Speaker 5: and have got flooded as anyway with this one, I said, yet,

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Speaker 5: no problems, will do that, and I forgot all about it.

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Speaker 5: Then all of a sudden I realized what the person

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Speaker 5: has actually gone to put somewhat of a retainer all

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Speaker 5: on their side, but it hasn't got any posts in

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Speaker 5: the ground to actually support the retaining wall, and it's

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Speaker 5: all been put up against a good neighbor. So when

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Speaker 5: it rains, it's still going to come down onto my side.

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Speaker 5: So I just want to know what I can actually

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Speaker 5: do about it.

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Speaker 6: I spoke to them, but they don't want to know.

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Speaker 3: Yeah. Under Inside Australia, John, there's a fencing app which

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Speaker 3: sets out all the requirements with neighboring properties and whose

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Speaker 3: responsibility is to do what In the event that there

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Speaker 3: is going to be damage to your property or nuisance

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Speaker 3: caused by virtue of a retaining wall that hasn't been

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Speaker 3: constructed properly, then you potentially do have a claim with

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Speaker 3: your neighbor. So we obviously want to avoid that because

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Speaker 3: we don't want to We don't like to have disputes

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Speaker 3: with our neighbors. But in the first instance, I think

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Speaker 3: it's reasonable to raise that with him, and if not,

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Speaker 3: speak to a solicitor about preparing a letter to him

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Speaker 3: know about those issues and his responsibilities. It might be necessary.

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Speaker 3: In cases like this, we see often that a report

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Speaker 3: might need to be done by a builder to make

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Speaker 3: sure that that retaining wall is compliant, and if it's

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Speaker 3: not compliant, what needs to be remedied to make sure

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Speaker 3: that both properties are protected.

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Speaker 2: Yeah.

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Speaker 5: I've actually built lots of retaining walls in the past

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Speaker 5: years and done them properly, you know, with the soakish

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Speaker 5: pipe and all the rest of the bits and pieces

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Speaker 5: that go with them. But this hasn't got any of

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Speaker 5: that there, so there's no safety mechanisms to stop water

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Speaker 5: coming across to my property.

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Speaker 3: Yeah, well, we hope we can get that fixed. But

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Speaker 3: if you do need help, you can give us a

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Speaker 3: call at Johnston Withers and we can talk about it

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Speaker 3: with you further.

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Speaker 1: Thank you, Graham. Good luck with John at Port Adelaide.

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Speaker 6: Morning, John, Good morning, how are your people?

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Speaker 1: We're good?

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Speaker 6: Just a query. I've found it extremely interesting, just the process.

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Speaker 6: My mother's seventy nine lives by herself and called us

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Speaker 6: one night and she'd bought a packet from say, one

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Speaker 6: of the big major store of a salad the diabetics,

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Speaker 6: so she really enjoys the salad. No glass product or anything.

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Speaker 6: All utensils were used. She rang this one night, or

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Speaker 6: rang me and basically said, look, I've just bitten down

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Speaker 6: on something and I've found this shard of glass and

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Speaker 6: it was a salad packaging but it was slipped straight

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Speaker 6: into the bar, as she said, a normal process which

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Speaker 6: I was seen to do. And she bit down and

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Speaker 6: has about her send amet along and quite sharp and

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Speaker 6: shipped both her front teeth. Now she doesn't have the

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Speaker 6: facilities to all the access to internet or following this up.

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Speaker 6: So I contacted the major store and basically said, well,

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Speaker 6: this is what's occurred as far as we believed. They said,

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Speaker 6: can you bring it in to the store that's purchased,

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Speaker 6: will send it over there. Now my mother doesn't even

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Speaker 6: smile now, and the process has been that she will

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Speaker 6: like because she's a proud lady and she is a pensioner.

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Speaker 6: And this by myself lost my father many years ago.

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Speaker 6: But the process I took up and following it with

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Speaker 6: the email pictures whatever they wanted A seventy nine year

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Speaker 6: old mother drove for half an hour to take the

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Speaker 6: shad glass back. Is basically, our team are onto it,

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Speaker 6: and we're doing this, and then we provided all the information.

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Speaker 6: Oh well, we had X rays of our product and

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Speaker 6: nothing was found. So and all through it is Shoot,

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Speaker 6: your mother wanted dental work, you know, she can go

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Speaker 6: ahead or pay for it. And I've been intimatetally away

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Speaker 6: through work and pay for it and then we'll assess

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Speaker 6: whether we'll make payment for the damages. And it's just

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Speaker 6: such a process. And I'm just saying I understand if

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Speaker 6: there's an incident or whatever, but you know, my immediate

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Speaker 6: thought for the public was, Okay, before you've investigated this,

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Speaker 6: is anyone doing it? About if someone else bought that

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Speaker 6: same product?

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Speaker 2: Yeah, and John, thanks for calling in. I'm very sorry

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Speaker 2: to hear that happened to your mum. And it is

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Speaker 2: not that infrequent, to be honest, and we do see

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Speaker 2: cases and it comes up in the media from time

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Speaker 2: to time. People find all sorts of things that absolutely

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Speaker 2: should not be in those products. Unfortunately, the process that

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Speaker 2: you've explained is about as good as you are going

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Speaker 2: to get in terms of the shops and you know,

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Speaker 2: let's be honest, we're talking about two major retailers. I

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Speaker 2: suspect we're talking about one of them. The shops won't

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Speaker 2: give over any money unless they've had the opportunity to

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Speaker 2: properly examine it all. I will say this though, if

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Speaker 2: you do pay for that dental work, in my experience

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Speaker 2: that the shops, and if we're talking about the two

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Speaker 2: major ones, they are pretty good in terms of wanting

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Speaker 2: to do a sensible arrangement. So let's say that dental

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Speaker 2: work costs five thousand dollars and you provide them with

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Speaker 2: the receipt, then they would normally be pretty good at saying, okay,

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Speaker 2: well we'll give you that money if you sign this

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Speaker 2: deed and then that would be the matter done. But

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Speaker 2: they certainly won't pay for medical treatment and then assess

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Speaker 2: the claim later on. You would have to pay for

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Speaker 2: that and then they would recover it.

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Speaker 1: Yeah, and that deed, tim that would be so you

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Speaker 1: can't come back at them for damages in the future,

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Speaker 1: presumably correct.

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Speaker 2: Yeah, And I always tell people just be really really

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Speaker 2: careful with that because people can sometimes jump at those

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Speaker 2: deeds because wow, five thousand dollars, you know this is good.

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Speaker 2: They've done that. I'm just going to sign it. But

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Speaker 2: to be honest, if they're prepared to offer that, it

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Speaker 2: could be circumstances where the claim itself might be worth

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Speaker 2: a bit more than that, because there's some not insignificant

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Speaker 2: pain and suffering that John's mum would go through it

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Speaker 2: by having that treatment. And quite honestly, if they're paying for,

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Speaker 2: you know, for ex treatment, they should be paying a

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Speaker 2: little bit more for the hassle that she's gone to.

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Speaker 1: John. Thank you. We'll have to leave it there. Jill

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Speaker 1: at Brighton, Hello, Jill, Hello, how can we look Jill?

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Speaker 7: Yeah, I just like to ask the team regarding taking

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Speaker 7: affairs out of the hands of public trustee. Just a

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Speaker 7: quick background on the scenario. The father's affairs went to

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Speaker 7: say Kat as a result of a family dispute, Sakat

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Speaker 7: placed his financial affairs in the hands of public trustee.

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Speaker 7: They've now done an initial assessment and report on his

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Speaker 7: affairs and so family members who do have financial skills

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Speaker 7: that's their job, would now like to take over the

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Speaker 7: daily running of his affairs. So I guess what's involved

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Speaker 7: and is it even you know, is there a chance

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Speaker 7: that we can get things out of the hands of trustees.

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Speaker 7: And one of the main reasons that we want to

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Speaker 7: do that is just their ongoing costs for basically nothing.

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Speaker 3: Yeah, Julie had a chat last week about people losing

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Speaker 3: capacity and the process of going through SAYKAT. Ultimately, SEKAT

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Speaker 3: step in when someone's lost capacity and there's either a

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Speaker 3: dispute about who should be managing their affairs or that

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Speaker 3: they've lost capacity without the necessary documents being a power

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Speaker 3: of attorney or advanced care directive prepared. When they appoint

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Speaker 3: someone in the circumstances they've appointed SAYKAT. That is usually

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Speaker 3: reviewed every six to twelve months, but it can actually

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Speaker 3: be reviewed on application by family member at any time.

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Speaker 3: So a family member can bring an application to say

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Speaker 3: there's a change of circumstances. We consider that this situation

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Speaker 3: is no longer appropriate and in our loved one's best interest,

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Speaker 3: So can you please alter the orders and appoint this person. Now,

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Speaker 3: that's not to say necessarily say CAT will. They'll need

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Speaker 3: to assess, you know, the circumstances, and their job is

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Speaker 3: to appoint the person who's going to be, you know,

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Speaker 3: the best to look after this person who's lost capacity's affairs.

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Speaker 3: So is a balancing Act for Sayka, but there's certainly

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Speaker 3: mirror in bringing that application. Appointing public trustees usually done

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Speaker 3: as a last resort.

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Speaker 1: All right, Jill, thank you, hope that helps. I want

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Speaker 1: to move on before we finish run out of time.

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Speaker 1: The case of Peter Dancy, who is the man who

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Speaker 1: was convicted of killing his wife drowning her in the

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Speaker 1: South park Lands some years ago. It turns out he

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Speaker 1: has rearranged his will at some point recently relatively to

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Speaker 1: not leave it to his son, which is where it

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Speaker 1: was originally heading, but to thirteen different people.

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Speaker 2: Yeah.

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Speaker 3: This has a very very sad and long industry ever

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Speaker 3: since twenty seventeen when she passed away. So not only

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Speaker 3: has his family had to deal with the criminal trial

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Speaker 3: and two appeals, but one of which went all the

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Speaker 3: way to the High Court. But in addition to that,

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Speaker 3: they've gone through this process of a dispute about Helen's

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Speaker 3: assets whilst Peter was alive. That was the first issue

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Speaker 3: that they've had to deal with outside the criminal matter

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Speaker 3: that's still not resolved. So the issue with that is

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Speaker 3: that Peter and Helen, who was murdered, had three properties.

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Speaker 3: Their principal place of residents and two rural properties in

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Speaker 3: the southeast, and they held those properties as joint tenants. Now,

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Speaker 3: what we've talked about a few times is people can

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Speaker 3: recall joint tenants is when you hold the property jointly

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Speaker 3: with another personal people, and when you pass away, your

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00:20:44,720 --> 00:20:47,840
Speaker 3: interest in that property passes to the remaining or the

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00:20:47,880 --> 00:20:51,960
Speaker 3: survivor proprietors on that title. So in that situation, what's

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00:20:52,000 --> 00:20:55,440
Speaker 3: actually occurred is by a virtue of Helen's death, Peter

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Speaker 3: has been able and actually did go to the land

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Speaker 3: Title's office and lodge what we call a transmission application

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Speaker 3: where it notes to the land Title's office that she's

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Speaker 3: passed and that the property should be put solely in

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Speaker 3: his name. So that did happen, and then the police

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Speaker 3: prosecutor brought an application to the Supreme Court to get

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Speaker 3: an order from the court to say no further dealings

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Speaker 3: can happen on this property because otherwise it was going

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Speaker 3: to pass to him in its entirety. So that was

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Speaker 3: the first issue that you know that's been dealt with

377
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Speaker 3: at the court, and now it's come out because he's

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Speaker 3: passed away really recently, is that he's left a will

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Speaker 3: and he's left it to thirteen people, one of which

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00:21:35,480 --> 00:21:39,840
Speaker 3: is not his only son. Now, obviously his son was

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Speaker 3: involved in the criminal matter where he gave evidence on

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Speaker 3: behalf of police, and that might be you know, Peter's

383
00:21:46,119 --> 00:21:49,360
Speaker 3: reasons for excluding his son from the will. But we're

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Speaker 3: left with this question now of well, what can be

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Speaker 3: done about that will? Can it be challenged? We've talked

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Speaker 3: about on other occasions that a will can be challenged,

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Speaker 3: usually on two basis. One is to say that someone

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00:22:01,320 --> 00:22:04,760
Speaker 3: didn't you know, have capacity or wasn't preparing a proper will.

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Speaker 3: But quite commonly a will would get challenged under the

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00:22:08,320 --> 00:22:12,119
Speaker 3: Inheritance Family Provision Act and that option would be available

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Speaker 3: to the son who's been provided with no provision. So

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Speaker 3: we think about the who, what, when and where's for

393
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Speaker 3: all of that. In South Australia, there is going to

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Speaker 3: be legislative reform in this area, so I only talk

395
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Speaker 3: about what the law is currently now. But someone can

396
00:22:27,960 --> 00:22:31,440
Speaker 3: bring a claim on someone's estate if they fall within

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00:22:31,480 --> 00:22:35,480
Speaker 3: a particular family group. So that family group includes a

398
00:22:35,560 --> 00:22:38,600
Speaker 3: spouse or someone who has been a spouse, so it

399
00:22:38,640 --> 00:22:41,200
Speaker 3: doesn't have to be legally married, but a domestic partner.

400
00:22:42,200 --> 00:22:46,399
Speaker 3: It can be a former domestic partner as well or

401
00:22:46,440 --> 00:22:50,399
Speaker 3: a former spouse. A child can do it. A step

402
00:22:50,600 --> 00:22:54,360
Speaker 3: child can, but only in very very specific circumstances where

403
00:22:54,400 --> 00:22:57,760
Speaker 3: they were entitled to be wholly or partly maintained by

404
00:22:57,800 --> 00:23:00,439
Speaker 3: the deceased before they died. So that is that's going

405
00:23:00,480 --> 00:23:04,239
Speaker 3: to be changed under the Succession Law Act when that

406
00:23:04,359 --> 00:23:07,919
Speaker 3: does come into force, I think importantly so with blended

407
00:23:07,960 --> 00:23:14,120
Speaker 3: families in today's era, but currently a stepchild very limited circumstances,

408
00:23:14,680 --> 00:23:19,000
Speaker 3: and in some circumstances a grandchild can make a claim

409
00:23:19,119 --> 00:23:22,720
Speaker 3: as well. A parent can, and a brother and sister

410
00:23:23,080 --> 00:23:25,480
Speaker 3: parent brother and sister a very difficult claims to be

411
00:23:25,480 --> 00:23:27,800
Speaker 3: able to maintain. Yes, they need to have a more

412
00:23:28,520 --> 00:23:32,679
Speaker 3: outside of an ordinary relationship that you would expect. So

413
00:23:32,760 --> 00:23:35,240
Speaker 3: those people can make a claim on your estate when

414
00:23:35,240 --> 00:23:37,560
Speaker 3: you pass away if they've been left with no or

415
00:23:37,640 --> 00:23:42,120
Speaker 3: little provision, And I guess the big thing is when

416
00:23:42,119 --> 00:23:45,240
Speaker 3: do they do that. This is probably the strictest time

417
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Speaker 3: limitation that we have because in South Australia you have

418
00:23:48,320 --> 00:23:52,280
Speaker 3: to file and serve court proceedings on the executor within

419
00:23:52,400 --> 00:23:55,879
Speaker 3: six months from the date probate is granted. If you

420
00:23:55,920 --> 00:23:58,280
Speaker 3: do it outside of that time period, you have to

421
00:23:58,280 --> 00:24:01,600
Speaker 3: get an extension, which the court not always grant. But

422
00:24:01,720 --> 00:24:05,080
Speaker 3: if the estate has been distributed, yep, too bad, your

423
00:24:05,119 --> 00:24:05,720
Speaker 3: case is over.

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Speaker 1: Because I think we would to ask Helen Dancy what

425
00:24:08,640 --> 00:24:11,400
Speaker 1: her thoughts would be. It would be that everything goes

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00:24:11,440 --> 00:24:14,199
Speaker 1: to the sun, surely, and would that be taken into account?

427
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Speaker 1: I mean, would a judge look at that and say,

428
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Speaker 1: what would the likelihood of the victim in this case be,

429
00:24:20,200 --> 00:24:21,240
Speaker 1: what would her wishes be?

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Speaker 3: Yeah, with inheritance, family provision claims, there's such a range

431
00:24:24,480 --> 00:24:27,000
Speaker 3: of things that the court takes into account. They will

432
00:24:27,000 --> 00:24:30,679
Speaker 3: take into account how the assets were accumulated, so the

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00:24:30,680 --> 00:24:33,719
Speaker 3: fact that they have come from Helen, and then they

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00:24:33,720 --> 00:24:37,480
Speaker 3: will also have in regard to the fact that what

435
00:24:37,520 --> 00:24:40,760
Speaker 3: their relationship with the deceased and the sun was now

436
00:24:40,800 --> 00:24:43,320
Speaker 3: in that circumstances, I don't think that there will be

437
00:24:43,359 --> 00:24:47,000
Speaker 3: any judge that can criticize the son for his relationship

438
00:24:47,040 --> 00:24:50,199
Speaker 3: with his father and those circumstances. So it's not a

439
00:24:50,240 --> 00:24:53,879
Speaker 3: situation where a child has chosen to have an estrangement

440
00:24:54,040 --> 00:24:56,679
Speaker 3: or not want anything to do with their parent. In

441
00:24:56,720 --> 00:25:00,520
Speaker 3: that case, you know circumstances, So that will be something

442
00:25:00,560 --> 00:25:03,119
Speaker 3: that the court will take into an account, but it

443
00:25:03,160 --> 00:25:07,520
Speaker 3: will also consider Peter's relationship with the other thirteen people

444
00:25:07,600 --> 00:25:10,000
Speaker 3: that he put in the will. So it's a two

445
00:25:10,040 --> 00:25:13,840
Speaker 3: stage test with what the court considers. First, they consider, well,

446
00:25:14,200 --> 00:25:17,399
Speaker 3: did the decease have a moral duty to provide for you?

447
00:25:18,359 --> 00:25:21,000
Speaker 3: I think you know, the strongest moral duty obviously exists

448
00:25:21,000 --> 00:25:25,320
Speaker 3: between spouses and then the deceased with their children. You

449
00:25:25,400 --> 00:25:28,320
Speaker 3: can understand that a moral obligation is a bit stretch

450
00:25:28,400 --> 00:25:31,560
Speaker 3: when we get to grandchildren or brothers and sisters, So

451
00:25:31,920 --> 00:25:34,600
Speaker 3: that would easily be satisfied in this case. Yes, the

452
00:25:34,640 --> 00:25:36,800
Speaker 3: deceased had a moral duty to provide for his only

453
00:25:36,840 --> 00:25:39,320
Speaker 3: son and he hasn't done that. And then this second

454
00:25:39,320 --> 00:25:41,719
Speaker 3: element that the court will consider will say, all right,

455
00:25:41,760 --> 00:25:43,760
Speaker 3: well he hasn't provided for them, so what in the

456
00:25:43,800 --> 00:25:47,720
Speaker 3: circumstances is reasonable to provide for him, to consider his

457
00:25:48,000 --> 00:25:49,960
Speaker 3: advancement and education in life.

458
00:25:50,080 --> 00:25:52,119
Speaker 1: All right, we'll see what it all ends up. Big

459
00:25:52,240 --> 00:25:54,720
Speaker 1: court process to come obviously, and all of that. Thank

460
00:25:54,760 --> 00:25:56,840
Speaker 1: you both for coming in. Really appreciate your time this

461
00:25:56,880 --> 00:25:58,399
Speaker 1: morning and taking so many calls too.

462
00:25:58,800 --> 00:25:59,119
Speaker 6: Pleasure.

463
00:25:59,359 --> 00:26:02,080
Speaker 2: That's a pleasure. And I note that mister Bands from

464
00:26:02,600 --> 00:26:06,000
Speaker 2: the Greens going to sue mister drayfuses, so we might

465
00:26:06,040 --> 00:26:07,440
Speaker 2: talk about defamation next.

466
00:26:07,480 --> 00:26:10,880
Speaker 1: Okay, excellent, all right, Tim Downey and Caitlin Walkington from

467
00:26:10,960 --> 00:26:13,840
Speaker 1: Johnston Withers Lawyers here next Thursday morning. Thank you,