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When the courts will intervene to rewrite a will

When the courts will intervene to rewrite a will

Where there’s a will it won’t always decide the way.

The reality of wills is, in many instances, the courts will intervene to reallocate the assets of a person who has passed-away.

While this has drawn criticism in some quarters – with media commentators taking issue with the court’s powers to overrule a person’s wishes – it also means relatives of the deceased are not treated unfairly.

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For example, in 2012 the New South Wales courts reinterpreted a mother’s will after she chose to leave her home to two of her children and disinherit a third. In the case in question two of those children lived with their mother while the third child had been estranged from her for 38 years.

The estranged daughter was eventually given $175,000 from an estate worth just over $600,000.

Key to the court’s decision was the sense that the estranged daughter was unemployed and in need of financial help.

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In a contrasting case, in 2017, the Supreme Court of Queensland upheld that a man’s unsent text message disinheriting his wife – in favour of his brother and nephew – was a valid will.

In the unusual case the man in question had committed suicide, however, the court found this was insufficient evidence to find he was mentally incapacitated when he drafted the text.

The court placed a heavy amount of weight on the specific nature of the text – it referred to the man’s house and superannuation and had been labelled as a will.

“It’s important to note the courts won’t just jump in and reinterpret any will – people looking to challenge one have to successfully file a family provision application to show cause that a court should reinterpret the will,” Steve Hodgson from Strategic Lawyers said.

“And if there’s a take-away message from the caselaw it is that it’s always worth getting real legal help.

“There are ways to ensure that your will can be strengthened against a potential family provision application, if you believe that a disgruntled relative may challenge it.”

This would mean your wishes are followed after you pass-away.

“The legislation provides a mechanism that allows any interested party – a spouse, child, or a dependent – to challenge a will if proper provision was not made to them by the will-maker,” Mr Hodgson said.

“However, a legal challenge of that nature does require expert legal advice to ensure it is made properly or defended properly as the case may be.”

Are speed cameras really accurate? When police lose in court

Are speed cameras really accurate? When police lose in court

Speeding fines are one of those things that are, on face value, very hard to argue with – a police officer uses either a radar or a camera to check how fast you were going and if you’re over the limit – you’re toast.

But one Brisbane man who appealed his fine through the courts showed it is possible to beat the system.

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Police used a photographic device – a speed camera – and claimed they pinged the man driving at 73km/h in a 60km/h zone.

The relevant Queensland law states that when police use photographic devices to measure how fast you’re going then they need to have a certificate which shows the camera had been tested within the past year and was accurate.

Click the links below to read the other links on our blog:

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>> Your rights if police stop you for a random drug search

>The 11 things you should know before getting a divorce

In the case in question the man initially lost in the Magistrate’s Court but then appealed up to the Queensland District Court with the Judge there finding: “the certificates do not state that the device had been calibrated within the prescribed 12 months.”

And because the certificates which showed the device was accurate weren’t current the Judge said the: “learned magistrate could not have been satisfied beyond reasonable doubt the device being relied upon by the prosecution in this case was producing accurate results.”

It is important to note the law is different for all types of devices and radar and some stationary speed checking equipment are subject to different standards.

Of course, with any speeding fine cost is a factor and a lot of people who insist they were not over the limit let the issue go because appealing can be more expensive than just paying.

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Ironically, incorrectly calibrated equipment is plausibly more likely to impact those who are only just over the speed-limit meaning innocent people caught by this area of law, often plead guilty.

The fine for exceeding the speed-limit by less than 13km/h presently sits at $175, the Queensland Police Service charge $47.90 for you get a hold of a copy of the calibration certificate and check if it is more than 12 months out of date.

So, while that may be excellent value for money for a person who was allegedly exceeding the speed limit by more than 40km/h – which attracts a $1,219 fine – it is less so for a person facing a smaller penalty.