5 months jail for possessing $228,815 cash at the airport

5 months jail for possessing $228,815 cash at the airport

In October 2018, our client and his co-accused were found to be in possession of $228,815 cash in their luggage at the Brisbane Domestic Airport.

Our client and his co-accused arrived at the Brisbane Domestic Airport from Melbourne. CCTV had depicted our client and the co-accused arriving in Brisbane and hiring a car. They left the airport and returned later that day.
Staff at the airport became suspicious of our client as he had repeatedly purchased tickets for flights in cash on a weekly basis over a number of months. They notified police who detained our client for questioning.

Police then searched our client’s carry on luggage revealing a Victorian Licence, other bank cards and the hire car receipt in his name and boarding passes and baggage receipts in other names. The joint baggage of our client and the co-accused contained a total of $228,815 in Australian currency.

As a result, our client was charged that by joint agreement, he dealt with money or property reasonably suspected of being proceeds of crime over $100,000.00 contrary to sections 11.2A and 400.9(1) of the Criminal Code Act 1995 (Cth).

The co-accused was sentenced and received a head sentence of 12 months imprisonment and was required to serve 8.5 months actual imprisonment.

Our client’s charges proceeded to sentence before the Brisbane District Court. Alan Phillips of our office appeared instructing Robert Gordon of Counsel. The Presiding Judge sentenced our client to a head sentence of 12 months imprisonment to serve 5 months actual imprisonment.

Our client was very grateful for the result particularly as he was required to serve less time than his co-accused.

If you are interested in our criminal lawyers acting on your behalf, please call Alan Phillips on 3009 8469/0403846238.

The LATEST NEWS about Australia’s new regional visas

New Regional Visa

 

The Australian Government has announced significant changes to the General Skilled Migration and Employer Sponsored visa programs for the 2019/2020 program year. The Department of Home Affairs has re-balanced the program to prioritise migrants willing to move to regional Australia, under the new regional visas.

New regional visas to Australia

This shift in focus will see both the Regional Sponsored Migration Scheme (subclass 187) Visa and the Skilled Regional (Provisional) subclass 489 Visa being replaced by two new regional focused visas, both with pathways to permanent residency after 3 years.

The two new visas are:
1. The Skilled Work Regional (Provisional) (SWR) visa or subclass 491 Visa (491 visa); and
2. The Skilled Employer Sponsored Regional (Provisional) (SESR) visa or subclass 494 Visa (494 visa).

There will be 14,000 places available for the 491 visa, and 9,000 places available for the 494 visa, which will be focused on promoting migration to designated regional areas in Australia.

This will result in a reduction in the number of places available under the current subclass 189 visa and subclass 190 visa.

What does this mean for future onshore and offshore migrants? See our frequently asked questions guide below for more information:

FAQs about the new regional visas to Australia:

 

When will the new regional visas be introduced?

The two new regional visas will be introduced from 16 November 2019.
The new Permanent Residence subclass 191 visa (191 visa) will come into effect from 16 November 2022.

 

Is the Skilled Migration Points Test changing in November 2019?

New points are being added to the General Skilled Migration Points Test from 16 November 2019.

The new points system provides additional benefits to a number of applicants including: regional applicants, applicants with a skilled partner, applicants with an English speaker partner and single applicants. Here are the new points allocations:
Skilled Migration Points Table

What is a designated regional area of Australia?

From November 2019 the definition of Regional will be replaced by a new and simplified definition.
The new definition states that ‘Regional’ includes all areas of Australia except:

• Brisbane and Gold Coast;
• Melbourne;
• Perth; and
• Sydney.

SKILLED REGIONAL VISA

When does the subclass 489 visa end?

The Government has announced that EOI applications for the subclass 489 visa will close on 10 September 2019, which is also the deadline for states to issue any invitations for the visa.

If you are invited to apply for the subclass 489 visa by 10 September 2019, you must lodge your visa application by 16 November 2019.

What is the new regional subclass 491 visa and how is it different to the subclass 489 visa?

The 491 visa, is aimed at encouraging skilled migrants to reside and work in designated regional areas of Australia.
To encourage migrants to settle in regional areas, the Department of Home Affairs has provided a number of incentives to applicants for the new 491 visa, including:

• Access to 15 points for regional nomination, as opposed to 10 points; and
• Access to priority processing.

The major differences between the new 491 visa and the old 489 visa include:
• The visa grant period will be 5 years, with an opportunity to apply for permanent residency under the new 191 visa after three years. This is a change from the original two years required under the 489 visa;
• The obligation to reside in a regional area now extends to all members of the family unit included in the application. The applicant and all family members need to live, work and study in a designated regional area.
• The applicants may be called for an interview to provide evidence to show they have been living, working or studying in a regional area for the full three-year period.

How can I apply for the new regional 491 visa?

If you meet the eligibility criteria for the 491 visa, you can then follow these steps:

Step 1: Lodge an Expression of Interest (EOI) through SkillSelect
Step 2: Apply for State or Territory Nomination, or be sponsored by an eligible family member living in a designated regional area in Australia
Step 3: Wait for State/Territory approval (if applying under this stream), and then wait for a visa invitation
Step 4: Apply for the 491 visa within 60 days of receiving your visa invitation. Rostron Carlyle Rojas Lawyers can assist you in determining your eligibility for the new 491 visa.

 

REGIONAL EMPLOYER SPONSORED VISA

When does the Regional Sponsored Migration Scheme (RSMS) (subclass 187) Visa end?

The RSMS Visa (subclass 187) Direct Entry stream will end on 15 November 2019.
The RSMS Visa (subclass 187) Temporary Residence Transition stream will continue to remain open for:

• Subclass 457 visa holders, who held or applied for their 457 visa on or before 18 April 2017; and
• Subclass 482 TSS visa holders, who held or applied for their TSS visa on or before 20 March 2019.

What is the new regional subclass 494 visa?

The new 494 visa, is aimed at encouraging migrants to commit to working and residing in designated regional areas in Australia.

The 494 visa is a regional employer sponsored visa that will involve three stages including: 1) Sponsorship; 2) Nomination; and 3) Visa application. Current Standard Business Sponsors under the TSS visa program will be given the opportunity to nominate 494 visa applicants right away and will not need to undertake the Sponsorship process.

Nominators should be aware that they must make a contribution to the Skilling Australians Fund (SAF Levy) of either $3,000 for a small business or $5,000 for larger businesses.

How can I apply for the new subclass 494 visa?

If you meet the eligibility criteria for the 494 visa, you can then follow these steps:

Step 1 – Sponsorship:
The regional business will need to apply to be a Standard Business Sponsor before nominating applicants under the new 494 visa.

Step 2 -Nomination
If you are considering nominating an applicant for the 494 visa, you must meet the following nomination requirements:
• The position must be located in a designated regional area of Australia;
• The occupation must be on the relevant occupation list or the Labour Agreement;
• The position must be genuine;
• You must undertake Labour Market Testing (no International Trade Obligation exemptions are available);
• You must meet the Annual Market Salary Rate requirements;
• The position must be full-time;
• You will require approval from the Regional Certifying Body (RCB) regarding the market salary of the position; and
• The employment conditions must not be less favourable than those of an Australian worker.

Step 3 -Visa application:
As for 494 visa applicants, you must:
• Be under 45 years of age at time of application;
• Hold a substantive visa or Bridging Visa A, B or C at time of application if applying onshore;
• Hold a successful skills assessment at time of application;
• Have a genuine intention to perform the occupation;
• Have at least three years full-time relevant work experience in the nominated occupation or a related field at the same level of skill;
• Have Competent English skills at the time of application; and
• Meet the health and character requirements of the visa.

How is the subclass 494 visa different to the subclass 187 Visa?

The major differences between the new 494 visa and the old RSMS (subclass 187) visa are:
• There is now a sponsorship process which will need to be undertaken prior to nomination;
• The RSMS visa was a permanent visa, while the new 494 visa is a provisional 5-year visa leading to permanent residency;
• Visa applicants will need to hold a successful skills assessment in their nominated occupation;
• If you wish to change employers during the 5-year period, you will need to be re-nominated by your new employer. If your position changes, you will need to obtain a new skills assessment.

 

PERMANENT RESIDENCY VISA

What is the Permanent Residence (Skilled Regional) subclass 191 visa and how can I apply for it?

The 191 visa has been established for subclass 491 and 494 visa holders as a pathway to permanent residency.
The visa will come in effect on 16 November 2022.
At time of application, eligible visa holders will need to prove the following:

• The primary applicant has held a regional provisional visa for at least 3 years;
• The primary applicant must have earned a minimum taxable income for the relevant three-year period (this income level is yet to be determined by the Department of Home Affairs);
• The applicants must have complied with the conditions of the regional provisional visa, particularly the requirement to live, work and study in a designated regional area of Australia.

Further details are yet to be released about the November 2019 changes to the Migration Program. The changes are very new and complex and applicants may require professional assistance to navigate them. Rostron Carlyle Rojas Lawyers Migration team is here to assist you to navigate these new visa changes.

Shanalee Johal, Lawyer, MARN: 1910236
To set up an initial consultation with us, please contact Shanalee Johal (MARN 1910236) at [email protected] or 07 3009 8412.

$136,000 Fraud Dropped as a Result of Successful Basha Hearing

criminal law

In late 2017 our client was charged with the offence Fraud to the value of $30,000.00 or more pursuant to section 408C(1)(b)(2)(d) of the Criminal Code 1899 (Qld). The Crown alleged that our client created a scheme with an associate, involving the associate’s wife making a life insurance claim, pretending she had multiple sclerosis (MS).
Our client’s ex-wife had previously suffered from multiple sclerosis and had received an insurance payout in 1998 of between $110,000 and 120,000.

Our client’s associate’s wife took out a life insurance policy in 2000, her financial adviser had assisted her in taking out the policy with the insurance company. It was alleged that the associate’s wife had attended upon a number of doctors making false complaints of symptoms consistent with multiple sclerosis. Further the associate’s wife and our client’s ex-wife were said to have attended an MRI appointment where our client’s ex-wife posed as the associate’s wife resulting in the test results coming back indicating a diagnosis of MS.

The associate’s wife then proceeded to make a false trauma claim through her financial adviser which was lodged with the complainant insurance company. As a result of the claim, the associate’s wife received a pay out of $300,258.00. The Crown alleged that our client received $136,000.00 from the associate for his role in the scheme.
In 2012, the associate of our client sent an email to his wife’s financial adviser telling him that his wife had made a false insurance claim. The following day, the associate committed suicide. The complainant insurance company was notified by the financial adviser and an investigation was commenced by police.

Our client’s ex-wife participated in a record of interview in 2015 making full admissions to her involvement, she was ultimately criminally charged and convicted of fraud. The associate’s wife was also charged. She contested her matter and was convicted by a jury after a two-week trial.

Our client was previously represented by another law firm. Upon being recommended to Alan Phillips, our office took over carriage of his matter.

Our client was provided advice that the main witnesses in the matter could be cross examined in a Basha hearing, in order to test their evidence. Alan Phillips of our office appeared before the Ipswich District Court instructing Scott Lynch of Counsel in the hearing. Two witnesses gave evidence and were cross examined.

Both witnesses performed poorly. As a result of the hearing, the charge against our client was discontinued.

Out of 3 people charged with this offence, only our client was not convicted.

Our client was grateful for the outcome achieved by Mr Phillips and Mr Lynch.

If you are interested in our criminal lawyers acting on your behalf, please call Alan Phillips on 3009 8469.

Visa cancellations can make you unlawful in Australia, but what happens when you already had a pending visa application?

visa cancellations

Immigration law can be complex, confusing and intimidating for visa applicants and visa holders, particularly the regulations surrounding visa cancellations.

There are many circumstances in which a visa can be cancelled, some of which may feel as if they are outside of the visa holders’ control. Once your visa has been cancelled, stabilizing your legal status in Australia can be difficult.

I breached my visa conditions… now what?

In some situations, visa holders may be aware of an impending visa cancellation before it occurs. This may be the case when visa holders have voluntarily breached the conditions of their visa for circumstances outside of their control, such as leaving your employer whilst on an employer sponsored visa due to mistreatment and unfair working conditions.

In such circumstances, many visa holders attempt to counteract the visa cancellation issue by applying for another visa whilst onshore. The strategy behind this approach is that once you have applied for another substantive visa whilst in Australia, you will be granted a Bridging Visa A (BVA) allowing you to reside in Australia pending a decision on your new visa application.

The general assumption is that in this circumstance your current visa will be cancelled and your BVA will come into effect, allowing you to await your visa decision in Australia.

 

Will a visa cancellation impact the Bridging Visa I was granted before the cancellation happened?

Many are not aware of the negative ramifications a visa cancellation can have.

A visa cancellation will infect a visa holder’s legal status in Australia, their future plans in Australia and any Bridging Visas that may have been granted when the visa facing cancellation comes into effect.

If your substantive visa is cancelled, any associated Bridging Visa you hold will automatically also be cancelled.

Therefore, the visa holder will effectively become unlawful upon cancellation of their substantive visa.

This leaves applicants with two options to consider:

1.       Leave Australia and wait the decision on the yet undecided visa application offshore (if possible – some onshore applications may not permit it); or

2.       Apply for a Bridging Visa E (BVE) to keep the visa applicant lawful.

For many, the option of leaving Australia is unrealistic, given their ties to Australia or the fact that the visa can only be granted onshore for certain onshore visas.  Therefore, they must look to make an application for a Bridging Visa E to remain lawful in Australia.

What is a Bridging Visa E and what rights do I have on this visa?

The BVE option allows migrants to stabilize their unlawful status and remain in Australia pending a decision on their new visa application.

Unlike other bridging visas, which can allow applicants to work, study, and apply for travel facilities, the BVE will only assist applicants in stabilizing their legal status in Australia. The BVE does not provide study or travel rights to applicants and will only provide them the opportunity to await a visa decision onshore.

The Department of Home Affairs decision maker will also make a decision on whether to allow a BVE holder the right to work. Whether these work rights are granted will depend on the applicant’s individual circumstances.

This is obviously an extremely difficult position for many applicants, who may not have sufficient funds to support themselves in Australia and who may need to travel home to see family whilst awaiting a decision on their visa application.

This can mean lengthy periods of time away from family, an inability to attend major family events/functions offshore and if you are not granted work rights, extremely difficult living circumstances.

The limited options available to migrants in this situation reflect the strict migration laws which apply to visa cancellations, even when the cancellation was created by circumstances outside of the applicant’s control.

The inflexible criteria can create difficult and often painful living circumstances for migrants.

If you are facing a visa cancellation, it is important that you seek urgent advice as to your options.

If your visa has already been cancelled, it is important that you seek to stabilize your status is Australia as soon as possible, and minimize any unlawful periods.

Rostron Carlyle Rojas Lawyers migration team has experience in dealing with complex impending visa cancellations and visa cancellation decisions.

Contact us for a consultation today:

Shanalee Johal, Rostron Carlyle Rojas Lawyers

Lawyer and Registered Migration Agent – MARN 1910236

[email protected]

(07) 3009 8444

You might also like: The LATEST NEWS about Australia’s new regional visas

Police Prosecutions Offer No Evidence to Burglary Charge and Weapons Charges

In November of 2018, our client was charged with a string of serious offences including:
• Burglary and commit indictable offence
• Unlawful possession of weapons Category D/H/R weapon
o Smith and Wesson M66 pistol
o Beretta 92fs silver 9mm pistol
• Unlawful possession of weapons Category A, B or M
o 22 Calibre Mossberg 802 with scope rimfire rifle
o Remington 700 233 with scope centre fire rifle
o Mosin Nagant 9130 with bayonet centre fire rifle
o BSA Centre fire rifle
o John Wayne Winchester Centre fire rifle
o Winchester Model AN1873 centre fire rifle
• Unlawful use of motor vehicle
• Possessing dangerous drugs (methamphetamine)
• Authority required to possess explosives

Following a review of the QP9 material, a submission was sent to Brisbane Police Prosecutions given that the evidence for the burglary and weapon offences was merely circumstantial. As a result of the submission sent by our office, Police Prosecutions offered no evidence to the burglary charge and two charges of unlawfully possessing weapons. Following the successful negotiations, our client’s remaining charges were listed for a plea of guilty.

Our client had a lengthy criminal history of 10 pages and had battled with substance abuse throughout his life. A bed in a residential rehabilitation facility was organised for our client to assist him with his rehabilitation in the future.
Samantha O’Connor of our office appeared before the Brisbane Magistrates Court on behalf of our client for the purpose of a sentence for the remaining charges.

Submissions were made on behalf of our client and our client was sentenced to a head sentence of 12 months imprisonment with immediate parole, the 135 days pre-sentence custody our client had spent in custody prior to his sentence was declared as time served under the sentence imposed. Our client was grateful for the excellent result, which allowed him to return to the community to continue with his rehabilitation at a residential rehabilitation facility.

If you are interested in our criminal lawyers acting on your behalf, please call Samantha O’Connor on 3009 8452 or Nick Crawford on 3009 8467.

Contesting a Will – What to do if you have been left out?

Annuity

With the ever changing social dynamics around us, it is becoming more apparent in the average Australian family space that people are contesting Wills.

So what does this mean for you?

As you are aware, people are able to decide who will inherit their estate by writing a Will. Unfortunately, people make decisions in respect to their Will that fail to take into consideration their spouse, de facto partner, child or someone who is dependent on them. Nevertheless, the law provides protection to people who have been left out or receive an unfair or disproportionate provision from a deceased estate.

If this sounds like you, you are able to contest a Will and bring a family provision claim against the deceased’s estate in order to receive an adequate provision from the estate.

To bring a family provision claim, you must be an eligible person e.g spouse, de-facto, child or a dependent of the deceased. A grandchild is not an eligible person unless they were a dependent of the deceased.

You also have only 12 months to make a claim from the date of the deceased person’s death, so it is critical to obtain legal advice as soon as possible.

Contesting a will: what the court considers

Should you be an eligible person, the Court will then consider the following matters;

1. Your relationship with the deceased;
2. Your financial resources and needs together with the financial resources and
needs of other beneficiaries;
3. The size of the estate;
4. Any contributions made by you to the deceased during their lifetime;
5. Any gifts received by you from the deceased during their lifetime;
6. The financial circumstances of your partner (if you have one);
7. Your dependency on the deceased
8. Your age and health;
9. Your character and conduct towards the deceased;
10, Any other matter the Court considers relevant.

If you believe that you are an eligible person and have been left out of a Will or have not received an adequate provision, you may be able to contest the will and obtain more than you think.

Equally, if you are an Executor and you are required to defend a family provision claim, we can assess your claim and provide you with expert advice with an aim to settle your matter swiftly in order to minimise the costs incurred by the estate.

Our team has extensive experience in estate litigation and whether you believe you are eligible to make a claim or require advice in defending an estate, we can assist you.

If such is the case or if you require further information in relation to the above, please contact Ian Agamalis or James Hatzopoulos at Rostron Carlyle Lawyers on (02) 9307 8900 or by email to [email protected] or [email protected].

Assault occasioning bodily harm – Successful trial sees client acquitted

On 24 April, 2018, our client—a twenty-seven (27) year old male—was charged with one (1) count of Assault Occasioning Bodily Harm. The maximum penalty for this charge is seven (7) years imprisonment.

In March, 2018, our client was involved in a fight with an acquaintance, both of whom had recently exchanged heated words over text. An associate of our client had been walking her sister to the train station when she heard the two parties arguing behind her. She witnessed the exchange that followed and confirmed that the fight had in fact been consensual.

Our client contested the allegations that the fight was a one-sided attack and instructed Tyronne Thomas to of our office to list for trial. On 4 and 5 February, 2019, Mr Thomas appeared in the Brisbane District Court instructing Josh Fenton of Counsel on behalf of our client.

At the conclusion of the trial, the Jury returned a not guilty verdict and our client was acquitted of the charge. No conviction was recorded, proving a successful trial for both our client and Mr Thomas.

More information:
If you are interested in our criminal solicitors acting on your behalf, please call either Tyrone Thomas on 3009 8481/0408 760 860 or Nick Crawford on 3009 8467/0410 413 107.

Operation Lima Avanti and Operation Mike Apex

In April 2013, the Moreton Police District commenced Operation Lima Avanti targeting trafficking in the dangerous drug methylamphetamine. Telecommunication interceptions were utilised to identify persons supplying methylamphetamine to customers. Also, in April 2013, Operation Mike Apex was commenced investigating trafficking activities of Outlaw Motorcycle Gangs targeting trafficking in methylamphetamine and other drugs both interstate and throughout Queensland. These operations were combined in April 2014 given that suppliers identified in the separate operations were linked.

Our client was alleged to have been a member of the Lone Wolves and Nomads, criminal organisations declared by regulation. Our client was detected through telephone intercept mechanisms and in December 2015 was charged with the serious offence of Trafficking in a dangerous drug as a vicious lawless associate. Trafficking in dangerous drugs carries a maximum penalty of 25 years imprisonment. Further under the Vicious Lawless Association Disestablishment Act 2013 if our client was convicted as a vicious lawless associate, he would in addition face a further sentence of 15 years imprisonment wholly served in a correctional services facility.

The Crown alleged that our client engaged in carrying on the business of unlawfully trafficking in the Schedule 1 drug methylamphetamine for a 15-month period, selling up to an ounce of methylamphetamine a week.
Following extensive negotiations, the allegation that our client was a Vicious Lawless associate was removed by the DPP.

The primary evidence against our client of the offence of trafficking was based on the statement of a co-offender. We applied for a Basha hearing of the witness. He came to Court and while subject to cross examination by Tracy Thorp of counsel, retracted his evidence of the majority of our client’s involvement.

Our office continued negotiations with the DPP which ultimately resulted in the charge of trafficking being discontinued in lieu of one count of supplying a dangerous drug (1 ounce of methylamphetamine) and one count of being a party to supplying a dangerous drug (498.8 grams of methylamphetamine). Following the charges and the factual basis being agreed upon, the matter was then listed for sentence before the Brisbane Supreme Court.

Alan Phillips of our office appeared instructing Tracy Thorp of Counsel for our client’s sentence before the Brisbane Supreme Court. Our client was sentenced to a head sentence of 6 years imprisonment with a parole eligibility date fixed after serving 18 months imprisonment. Our client was appreciative for the excellent outcome, as he was initially facing decades of imprisonment.

Wills and Estates: An annuity may not be adequate provision for proper maintenance and advancement for a widow

annuity

What does it take to make adequate provision for proper maintenance and advancement in a will?

Is it a matter of moral duty or community standards?

The answer to those questions depend upon a range of factors.

In Steinmetz v Shannon [2019] NSWCA 114, the appellant was the second wife of the deceased, who left an estate of approximately $6.8 million. The estate consisted of real estate, a superannuation policy, a real estate business and a liquor outlet business.

By his will, the deceased left the appellant an indexed annuity of $52,000 for the remainder of her lifetime. The remainder of the estate was left to the respondents, who were the independent adult children of the deceased’s first marriage.

The will contained the following provision:

“IT IS MY EXPRESS WISH that my Estate remains a whole for my children and grandchildren. I have drafted my Last Will and Testament in the above manner as I believe that it enables my wife to live comfortably for the rest of her life without having to dispose of the assets that I have worked my whole life for.”

The will was made hurriedly in circumstances where the deceased was about to undergo surgery which he feared he might not survive. Instructions were in fact given to the deceased son in law who was a solicitor.

The trial judge dismissed the appellant’s family provision claim. The widow appealed.

The principal issue on appeal was whether the annuity was adequate provision for the appellant’s proper maintenance and advancement in life.

The members of the Court of Appeal all approached the issues slightly differently, but unanimously held, allowing the appeal:

Adequate provision for a proper annuity is not limited to the provision of financial necessities.

Section 59 of the Succession Act (NSW) is to be applied according to its terms, and not confined by notions of reluctance to interfere with freedom of testation.

Insofar as it is necessary to resort to concepts of “moral duty” or “community standards” as a measure of proper provision, the former is preferable.

To leave a 65 year old widow, who is well capable of managing her own affairs, reliant for the rest of her life on quarterly payments by the children of her deceased husband’s first marriage, with one of whom there have been historical tensions, rather than placing her in control of her own resources, is not an appropriate form of provision.

The appellant widow was awarded an amount of $1.75M in lieu of the annuity provided under the will.

In the context of the relationship and marriage, taking into account the sustained and substantial contributions the appellant had made to the welfare of the deceased; the size of the estate; that there was no-one else responsible for the maintenance of the appellant; the appellant’s reasonable wish to relocate; and the absence of competing claims; the annuity provided to the widow under the will was not adequate provision for the proper maintenance and advancement of the appellant.

In relation to the express provision in the terms of the will, Brereton JA said,

“A wish to preserve “the assets that I have worked my whole life for” for the benefit of his children and grandchildren does not reflect a careful balancing of competing claims. The testator allowed this wish to preserve his estate intact to so dominate his decision-making as to fail to have sufficient regard to his obligations to his dutiful wife of 28 years.”

In finding the annuity inadequate, Brereton JA said,

“to leave a 65 year old widow reliant for the rest of her life on quarterly payments by the children of her deceased husband’s first marriage, rather than placing her in control of her own resources, is in this day and age not an appropriate form of provision for a widow who is well and truly capable of managing her own affairs and when there have historically been tensions between her and at least the first respondent. However reliable the respondents might be, this form of provision effectively obliges her to have an ongoing relationship with them, and to trust them to perform the obligation, and does not afford her the independence and self-reliance which, according to today’s community standards, a widow should have. It is not only rigid and paternalistic, but demeaning and controlling.”

The decision highlights the broad approach a court will take in such matters. What may at first glance be adequate and proper provision, may on careful analysis of all of the facts, be quite inadequate and altered.

In ideal circumstances, wills should be made after careful consideration of all of the relevant facts, with sound advice and guidance.

Contact us for any assistance in making a will or in getting advice on whether a will makes proper and adequate provision.