Tara (00:57):
Welcome back to the Art of Estate Planning podcast. It is episode 17. It is Happy New Year. Welcome to 2025 and thank you for bearing with us. While we had a few weeks break over Christmas, we still are technically on holidays as you may be as well. So we are doing things a little bit differently and calling on our extensive back catalogue of amazing trainings from the Art of Estate Planning Facebook group. So if you are in that free Facebook group, you probably know that on the second Thursday of the month we have a free live training for everybody and we get some amazing guests who tackle some really fascinating topics related to estate planning.
(01:50):
And what I want to share with you today is a conversation between Carrie, Kate Gruer and Michelle Davis all about documenting test data reasons. So Kate is a estates barrister in Queensland and Michelle and Carrie, as you both know are estate planning lawyers.
(02:12):
So we are looking at this from all angles, bringing in the practical experience from the courtroom as well as thinking about this front in terms of trying to mitigate risks when it comes to documenting estate planning wishes. So the topic of this conversation is about what to do when your client wants to document their reasons. We've all been there, right? Clients will often have a whole slew of reasons justifying why they are giving someone a bigger share of the estate, why they want to exclude someone from benefiting altogether, and really just to have their say and almost speak from the grave. So in this conversation, Michelle and Carrie are going to talk about is this a good idea? How can we manage this as a estate planning practitioners, what has Kate seen in practise when disputes arise and whether these statements are beneficial. They cover things like whether they should be in the will or in a separate document when it is a really insightful and fascinating conversation.
(03:22):
I know that I learned a lot listening to it and Carrie, Kate and Michelle have some really awesome insights. I'll just let you know because this recording is a couple of years old and it's come off a live streaming event. The quality of the audio isn't quite up to the usual standard. That said, we did decide to include this because the quality of the insights and the conversation is next level and of the chart. So we hope you enjoy this. If you do want to watch the video conversation, we've included the YouTube link where you can actually see everybody's beautiful faces and see the insights to the full conversation in the show notes. I hope you enjoy.
Carrie (04:11):
The main question that I wanted to ask. I mean there's two that I wanted to check and certainly that's me being selfish and I know there'll be some people coming through, but the two questions I want to ask can certainly feed into them separately. The first one is does it matter if we write down what the intentions are and then the second is where the best places to actually record them? So those are kind of my two main things I wanted to take out from today and I know certainly that's the two most common questions that come up with a lot of our members in the art of estate planning as well. So if either of you wanted us to give us some guidance around how that works and what you're seeing.
Kate (04:50):
Carrie, I'm happy to jump in there if you like. I think the second one is the easiest one to answer, so I'll do that first. You never put it in the will, never ever put anything about the reasons why somebody's excluding anybody in the will. And the reason for that is really simple is that the will gets admitted to probate becomes a public document that any Tom, Dick or Harry can go in and get a copy of from the relevant Supreme Court. So why would you be airing your dirty family laundry? Usually that's what it is in the will never make any mention of it, even the fact that you are excluding somebody, you just don't make any mention of it whatsoever in a will. If you want to document something, you do it as a separate document. Another reason for that is often such statements can be of themselves quite inflammatory and so you might have an applicant who's been left out who maybe was not going to do anything about it but then sees a copy of the will and there's some statement in there that they always disagree with because they never see the statement and say, oh, that's right, that's why I didn't get anything mom's right.
(05:54):
That never happens. There's always funnily enough, a second side to the story, sometimes a third or a fourth side, and so them seeing what they believe is an inaccurate and wrong description of something that has occurred is just going to inflame the situation and might encourage a claim where there would otherwise not have been one brought. Whereas if it's done as reasons done as a separate document, a stat deck that's signed and kept with the will, the executors can then use their discretion hopefully on legal advice as to if and when to disclose those reasons to a potential applicant.
Carrie (06:33):
That's interesting that you say that. I know exactly what you mean about dirty laundry. I mean when the situation is already difficult, you've lost someone, everybody's mourning, you don't want to add fuel to that fire as you've said. Is that the only reason why you wouldn't do that? Because I think that I certainly know some clients that have no problem airing the dirty laundry so to speak. They have no problem inflaming fires or adding fuel to the fire so to speak. There's no UX of reason why putting it in a stat deck is better than putting it in a will for it to help.
Kate (07:05):
Well, one legal reason could be this, if it's scandalous stuff that goes in there, then that's going to be the sort of thing that might be subject to an application to court to exclude those wills from the admission of that will to probate. So therefore you automatically go. So if it's anything inflammatory at all that might be considered scams, you automatically go from a will that could be admitted to probate in common form and costs a couple of thousand dollars to something that is potentially a contested application in court that might cost $20,000 or more. So there's another really good reason why you don't put anything like that in your...
Michelle (07:42):
And on that topic, if I can just weigh in, one of the things is you've got a dispute on your hands or a potential dispute in hands. That's a last of your worries is get the will admitted to probate, get that done so that you can move toward trying to resolve a dispute. So that's the last thing you want to do is overcomplicate it situation. That doesn't have to be that complicated just at that initial stage.
Kate (07:58):
Remember of course the solicitor's job is to advise the clients about this if they instruct you otherwise. Well, you know...
Michelle (08:08):
If that's the lawful competent instruction that you get from your client, that's the thing. But as you say Kate, you've got to advise them. You've got to explain why it's not preferable that you do that and so they can make a proper informed decision at the end of the day if that's what they want to do. Knowing all of your advice is on board, it makes it a bit of a tough conversation and this is why these sorts of conversations in these platforms are really good because you can kind of flesh out, okay, well if you want to do that, going back to what Kate said at that seminar I went onto one day, these are the couple of reasons you might not want to do that and then go from there.
Carrie (08:40):
Our goal is really as you said, to counsel people into what decisions are going to have effects that they might not think about and obviously we have to draught a will that the client actually is comfortable with. So yeah, you're absolutely right. Give a client still it in there and wants to burn the house down, then sometimes that's something that you can't necessarily stop and all we can do is advise them of the reasons why that might not be appropriate.
Michelle (09:05):
And I think the other thing to remember here on that topic, Carrie, is the fact that there's a lot of emotion attached to these sort of conversations as well. And I think as a practitioner it's really easy to form your own opinion whether you should or not. We're human beings at the end of the day. So sometimes we can feel, oh, maybe that's really not the right way to go, and sometimes that can come through in the way that we give that advice or express that advice and I think we have to be cautious to say, I'm not saying if it's right or wrong, that's not a matter for me from a legal standpoint. I am duty bound to explain these are the reasons why you might not put that stuff in the will. My job is to give you the advice, you make the decision, but you need to know both sides of the equation.
(09:47):
Otherwise I'm not doing my job properly to encourage them to say, I'm not saying that you shouldn't say it, I'm not saying that it's wrong to say it or any of those things because people can feel really judged as well. And this is a personal conversation in a planning environment. This is as bold and broad as you get, but it's just a really uncomfortable conversation for some people. So anything you can help to appease them and not appease them, but just getting that barrier down or that defensiveness that might apply when you are saying you shouldn't put that stuff in the will, just to explain to them why you are cautioning against taking that approach or why you might want to look at it a different way. I think that goes a long way to building having that continual rapport with the client too.
Carrie (10:30):
I think that's really relevant. I've learned a statement when I was much bit younger that seek first to understand then be understood. We can say these things about what the legal position is, but if we get to the root of why the client's doing that or say that sometimes that helps us give more appropriate advice or find a way to communicate the advice in a way that makes sense for them. And as you said, it's particularly emotional so you've got to dread on that area quite delicately.
Michelle (11:00):
And you are having a conversation that's a couple of hours potentially versus the history of the top content of the conversation. So there's lots of baggage attached to that conversation. So the communication skills in this space I think need to be absolutely top-notch to try and navigate those really difficult situations because when it comes to a litigation perspective and Kate weigh in at any moment, that will impact what ultimately gets written down. If it is put in the form of an affidavit or a static or something like that, that it's all, when one big conversation that happens even at playing stage, you might consult with Kate and say, Kate, I've got a planning client, they want to do this. We need your help to craft something appropriate. So if the dispute arises, we've got some insight from a litigious perspective about how best to reflect what we're working with.
Kate (11:55):
I would say to you guys to say to the client who wants to put it into the will because at this stage we're just talking about where to record if you're going to record, we are not talking about the wiseness or otherwise of recording. So assuming you are recording reasons and a client adamantly wants to put it into a will point out to them in Queensland we have section 92 of the evidence act. I'm sure there's equivalence in every other state that says if a person is deceased and there is a written statement by them of otherwise admissible evidence, then that is admissible as evidence of the truth of under section 92 of the evidence act. That statement is admissible as evidence of the truth of it. So if you sell it to them on the basis that if we put it in a separate document called a statutory declaration, that document will be admissible in court as evidence of the things that you say in it that might make them a little bit more persuasive.
(12:48):
Whereas even though technically speaking a statement that they put in the will and then sign themselves is probably also a statement under section 92 of the evidence act or the equivalents, but they don't know that and you could sort of sell it to them as you put it in this statement. And then this particular statement is admissible in evidence and of the truth of what's put into it. My side note is a statement that they write in the will is possibly also a statement under section 92 that may also be admissible. I'm just suggesting that that's something that you can tell the clients as to why it's a good idea, keep it separate, and then that of itself is admissible if you focus on that being admissible to the court as evidence of what they say in it, it might just kind of take their focus away from wanting to try to put in.
Michelle (13:37):
And more uncomplicated way of making it admissible rather than trying to argue the whole two statement business and all that, which is likely to be accurate anyway. But I suppose back to Carrie's point about putting it in the will, I think actually no, it might've been Kate, sorry, your point about putting it in the will, it kind of highlights that, hey, this is why I might make a contest on the will because this is in the will and I want to have my day in court because I want to say how it really went down. They say, and I've seen that happen with wills and when I was doing dispute work, the will would say a statement and the client would come to me, family provision applicant for example, and say, that's so untrue and I want to make sure everyone knows it and that's why they bring a claim and it was all because it was in the will and that's just something that you can avoid and it might push them past the point of just getting to mediation, try and resolve it as cost effectively as possible and time effectively. But no, they want their day in court literally. So it's totally like that...
Kate (14:39):
They can potentially avoid it because a lot of these cases there's just going to be claims fraud anyway, so it's probably not going to make too much difference.
Michelle (14:48):
I'm an optimist, Kate, you know this. I completely agree with you, but earn to sit was putting it out there as an option and people, it doesn't always work, but you never know until you try. I suppose.
Carrie (15:00):
My new statement for myself, Michelle, is I have a pessimistic mind of a lawyer, but I have a very optimistic heart.
Michelle (15:06):
Yeah, well I think you trained to be a pessimist as a lawyer. I'm pretty sure that was the underlying undergrad. Some studies PEs, yeah, but at the same time it's a conflicting situation, isn't it? You're an optimist at heart but then you're a lawyer so you naturally have to be a pessimist because you always risk assessing where can it all go wrong.
Carrie (15:25):
Kate, can I throw a question at both of you and feel free to say, I'd have to look at that a little bit closer because I know this might be something that you haven't looked at recently, but when you said that the section 92 of the evidence act and you can add something like a stat deck into evidence for that sort of application, is that something that an executor is required to give up or a lawyer is required to give up or can they give it up at their discretion only?
Kate (15:54):
So can I divide that into pre proceedings having been commenced and just so no proceedings on foot and it's just post debt so completely at the executive's discretion, they don't have to provide it any proceedings being on foot and they can choose to or not. And a sensible executor may choose to withhold something that is just clearly going to be inflammatory and has clearly got misapprehensions of facts in them and all of that sort of thing. My experience generally tends to be that the deceased person chooses an executor who's going to share their views usually in that way. So often you're not going to have a nonsensical test data with a very sensible test executor doesn't usually happen, but the executor could or the executor might be somebody who will listen to advice from their lawyers a bit better and might choose not to share that.
(16:49):
Alternatively, it might be that the statement could be of some use, but it can be determined later on. Secondly, if proceedings are on foot, then it is an executor's duty to put everything before the court that is relevant to the determination of the claim. And so at that point, depending upon what is said in this statement and the truth and veracity of it, et cetera, it might be that the executor is obliged to disclose that and put it before the court at the post proceeding stage. But that would depend upon the nature of what was said in it, what those reasons are, whether they're clearly made up and not based in fact et cetera. And that would have to be taken on a case by case basis. But probably in theory, once the proceedings are commenced, it might be something that could be compelled and an executor is obliged to give to the other parties in the court.
(17:48):
Someone says these cases do my head in as an old fashioned lawyer, the fact that my client's file can be demanded from the court just does my head in. Why can't they have an honest discussion with the lawyer and get full and frank advice. So I guess my question is, is there another area of law that does this where you can apparently fairly easily demand a lawyer's file? Is there a corollary that I can draw here to another area all to look at and think through this point and then we've got a part of a word, so I think we're not seeing the whole question or something.
Michelle (18:18):
Yeah, that's what I'm saying.
Kate (18:19):
But I think we've got the gist of it. So first of all, it's not easy really to get it. I wouldn't say it's easy to get. It's not particularly easy to get. If you want to force it, you might need to bring an application to court and a lot of people are reluctant to do that, so it's not really that easy to do. But why can't they have an honest discussion with their lawyer and get full and frank advice? Well can you don't have to document everything that they say to you. You could have a discussion with them about whether or not you should document what is being discussed because you might say to them, look, what we're discussing here now is something that could potentially end up before a court. Do you want me to keep a proper record of what we're talking about or should we have, would you like to have an off the record discussion so you don't don't honey? Yeah, that's hard though Kate, all of that. Well, because you are going to be safe from the perspective of risk management for a solicitor, that would be a really bad idea to not document that. But why would the solicitor not just make a note that says along the lines of discussed family provision risk and particularly with respect to applicant A, B, C client did not want advice recorded. Something like that.
Michelle (19:39):
Somebody does comes does my head in the concept is my brain's going to explode.
Kate (19:43):
What could ever come back against the solicitor? Well, the thing you could ever come back against the solicitor, if that was the case.
Michelle (19:50):
The content of the conversation might be relevant. And the thing is, the hard thing is you won't know. You won't know, the solicitor might not recall the detail. It might time have passed passage time, all that kind of jazz. But one thing I can't help but think of when you were talking and reading that particular question out as well and then talking about the record keeping is that whole question of whether you are required to hand it over at all in the first place. Is it a document that is owned by the client? Did they pay for the content of the file note, all those sorts of conversations in your brain as well. If it's something that, and maybe that's the thing you have to look at, is it a document that you produced on the client time and the client paid for it, therefore it's the client's document.
(20:27):
To what extent that information can be redacted in any subpoena to provide that information. And that may be a question that you can probably talk to, but I think also I'm very cognizant in my experience that every solicitor is different in terms of how they record and the detail that they record in a file note. I think that it might be sufficient and it's always, hindsight's going to be perfect in this regard, but it might be sufficient to say what you're suggesting and say talked about family provision, address the issues of the applicant, the conduct, although sort of more generic conversations, at least our pinpointed but not the detail. And maybe that's something you advise that the detail goes into another statement or something if it's relevant for the conduct issue that might get brought up in later in the litigation. So I think it depends. I think it would take a fair amount and appropriately fair amount of brainpower to consider exactly what you should record to ensure that you do discharge your obligations correctly. You have the relevant information in your file note, so you are covering your butt pretty much.
Kate (21:34):
Can I make a distinction here between, because I know you talked about the concept of whether the file note belongs to this as solicitor or the client. In my view, that is irrelevant to when a file has to be produced for either a solemn form proceeding, which is we see that there is a seeing being produced much more in solemn form proceedings than family provision applications. It's pretty rare to see a solicitor's file note ever disclosed in family provision application. I've seen it two or three times maybe in hundreds. It's interesting.
Michelle (22:08):
Because a lot of people think that they are pretty open about it and you see it come into family provision one way or another. So the faith that you see you don't see it very often is quite different to I think from my perspective what estate planning solicitors tend to see.
Kate (22:22):
They are in all the time though in solem form proceedings. So where you've got a family provision risk, you've also got a solem form proceeding risk in a lot of those cases anyway. So I'm saying the risk is much higher that the solicitors file notes will end up before the court in a solemn form proceeding then a family provision application. But it can also be relevant in a family provision application. But what I was going to say about the distinction between whether you own the file note or the client that's relevant for when a client comes to you and says, please can I have my file? You take out anything that's your document, you give them their documents and then there can be dispute about whether a solicitor's file note is the client's document or yours. When a solicitor's file is relevant to a court proceeding, the whole file is disclosable. It doesn't matter whether a file note belongs to the solicitor or the client, the entire file, the whole lot including the cover, including any notes that are made on it, including your time recording records, everything is relevant and disclosable when a file becomes disclosed in a corporate proceeding. So it doesn't matter whether it's your file note or their documentary belongs to the client.
Carrie (23:30):
And someone said something about that here, Kate as well, saying that they've personally experienced having the court demand their file. So yeah, that's practise.
Kate (23:39):
Is there another area of law where this happened? Well, because my practise has been focused, specialised for a long time, my specialty outside of this area isn't that great anymore, but somewhere where solicitors files get produced commonly is equitable actions to overturn transactions that are made. The first thing you need in that is the solicitors file because the defence usually is that a person did this on estate planning advice and for the purposes of blah blah, blah, blah, the solicitors file is always relevant and disclosable in those circumstances. So that's another area of law, although kind of related to this area of law. So possibly not the kind of answer that the person who asked that question was after.
Michelle (24:25):
Well maybe negligence might be another area potentially like a professional negligence claim or something like that. Might be another area that happen.
Kate (24:33):
Ethical issues and complaints.
Carrie (24:36):
The comments as well so...
Kate (24:37):
Oh, there you go. Yeah, and I think there's a solicitor, you have got to assume that at some point and everything you are writing down might end up before a court. I always say to junior solicitors, whenever you write correspondence, assume that a judge is going to be reading it.
Michelle (24:54):
Yeah, absolutely. I've said that from day doctor. Yeah...
Carrie (24:58):
Yeah. Well what to go into a court, someone's actually said something here which related back to something you said before, Kate. They said as an officer of the court, can you promise that something is actually off the record because they feel like the answer is no.
Kate (25:11):
So I think the answer to that is no. I don't think the answer is no. The answer to that is no. If a solicitor on the other side says to you, can we have an off the record conversation, you can't agree to that because your obligation is to the client. And so if something comes to your knowledge through that other solicitor, there is no such thing as off the record between practitioners. There can be without prejudice conversations.
(25:36):
That's completely different to off the record. So if somebody says to you, can we have an off the record conversation, you should say, well, hang on, can I clarify what you mean? Do you mean without prejudice? Which means this conversation can't be admitted to court and it can't be relied upon because we're going to potentially be talking on a basis where there might be some admissions made, et cetera and talking about settlement. But off the record, I can't make it off the record because if you tell me something that's relevant for me to tell my client, I have to tell my client that's my obligation.
Carrie (26:05):
What about if it's the client saying, like you said before, Kate, that if you say to the client, we can turn the record off for what you want to tell me about the background here, is that something you can do or I think that's what the person is asking. It's not so much between practitioners but between you and your client.
Kate (26:20):
Okay, so I see. So I'm rereading that question now with that in mind as an officer of the court, can I promise that something is off the record? I feel like the answer is not. Oh. So can you say to the client, if the client says this off the record, don't write that down, I won't make a note of it, but if I'm compelled to give evidence in court and asked about it, then I have to answer truthfully about it. So that is correct that the answer is no, but you don't have to make a written record of it. And frankly who's going to remember that in a year's time? I was just going to say I think it might be
Michelle (26:57):
Threading my memory skills in that conversation. That'd be intensely. I mean I know what you memorise things I said to the clients yesterday in conference, so I don't remember what I had for breakfast. And I think on that topic, if I can weigh in from a planning practitioner's perspective, I think what's really important here is the way that you explain to the client and just help them understand what records you do keep in the conversation that you're having and the fact that it is confidential, it's privilege, most of it is professionally privileged information too. It's not something that you're going to go and fly around the back after you leave the consult room and talk about it with everyone. It's not that kind of content for a particular purpose. It's a confidential conversation. And I think in that whole, can we have this off the record conversation or those questions, where are they coming from?
(27:49):
Why? And trying to understand whether it is truly something they need, they don't want any written record of for some reason, or if it's just that they think that they have this misunderstanding of confidentiality or something like that and just appreciating the differences between those things. And I think again, it comes back to what kind of practitioner are you? A very comprehensive file. That's me because that's just me. And there's lots of different ways you can approach it, but I also look at it from a perspective of if I'm going to be called to give evidence on this matter lately later, what information do I need to have recorded in there just to be able to bring myself to remember that particular consultation too? What other aspects are relevant? I in a questionable capacity type of matter, you're going to document things that are slightly different potentially to that of one that's a conduct issue in a family provision risk conversation. So I think it doesn't have to be...
Kate (28:46):
Exactly, because we are, that's right. We're having this conversation in the context of the latter, what Michelle just said, the conduct in a family provision application. So if we're talking about having the conversation with the test data about why they're cutting out a child, for example, and you sort of having a listen without writing everything down there for the purposes of deciding whether or not you document this or and the how and if so, et cetera. It's very different to you documenting your investigations that you are making and the questions that you are asking to determine whether or not somebody has capacity to make a will. That is not your determination to make. Your determination is can I get coherent instructions here to make a will? And it's the court's job to determine later if the person had capacity, your job is to record everything that you possibly can so that determination can be made later because you're not possibly in a position to know whether or not what they're telling you is truthful. So you are not making an assessment of capacity, you are taking down the evidence for the future determination of capacity.
Michelle (29:51):
And on the conduct aspect, the kinds of things you're recording might be the kinds of questions you ask because as we all know with emotive situations, they can be coloured in certain ways. And as you have that conversation with your client and you might be testing what they're telling you to be able to really understand whether there's not, you're not saying you don't believe them, but you're just trying to really test what information you are gathering from them because you might uncover that perhaps that's not quite exactly the way they described earlier, but that may then impact the advice that you give. And that's where those questions may be really relevant. If they're going to falter in front of you about the story that they're telling about conduct, what are the chances of that happening later in a litigation matter? And that might then give you cause to adjust the way that you present your advice to them about the amount of information that they're going to need to give. If this ends up in a courtroom and that's the value as a practitioner, that's the value that you add. Yes, it's an uncomfortable conversation, but it's absolutely necessary to make them, but put them in a position where they're making a fully informed decision about what they're doing, not only in their will but potentially what other statement they might then put in place to accompany that situation if that dispute rose. Does that make sense?
Kate (31:10):
Yeah. Yep. And there's another comment that's been made by somebody that says yes, I've seen a few times largely where a party has often stupidly thrown away their client's solicitor confidentiality with a previous solicitor usually have seen it out of time. Family law, property matters. You are talking about waiver of privilege there because people will swear an affidavit because it happens in out of time FPA applications, but because they say, I went and saw a solicitor on such and such, but they told me that I didn't have a claim. Okay, well thank you very much. That file is now disposable because you've just waived privilege over it because the client is using the advice given by the solicitor and asserting that as part of their case and the reason why they did or didn't do something. So that amounts to them waiving privilege over the file. But that is a little, and so that's relatively common too, but that's kind of the client's conduct that brings that about. But it's another example where commonly files end up before courts and often then that is actually disputed and you've got to get a court order to get that file disclosed. But I think that's quite different to the sort of situation that we were talking about earlier in whether a solicitor's file will or does become relevant in a family provision location.
Carrie (32:28):
I wanted to maybe switch the conversation now to that first question I sort of said at the start of the meeting. So we've talked a lot about the second question about how you document and certainly...
Kate (32:37):
Well the one that I said was that one's a simple answer,
Carrie (32:41):
I'm ready for it because I tell you what, there might be some people that say no, I'm certainly ready for the comments. What are the reasons you do or don't document the reasons and to what extent do you document them as well? Do you go into the full history of the family? What things does a court want to see to make sure that the person has obviously considered these other people and the reason they're not doing things or doing certain things?
Kate (33:08):
Michelle, did you want to touch on why you might do it?
Michelle (33:11):
I was actually thinking, oh, you and I, Sarah, sometimes I was thinking exactly that. Yeah, happy to. So the reason you would want to document it is because a client really bloody wants to. That might be one thing. Now that doesn't mean that you throw everything to the wall and see what sticks kind of situation, but that's another conversation. But yeah, if the client really, really wants to, at the end of the day, lawful competent instructions, that's what they want to do with all the advice given et cetera, then that's what we do. My 2 cents in terms of what you do document, I think that goes, it needs to reflect the reasons why the document's necessary in the first place. Why are we disinheriting or reducing provision or whatever it might be, what's the heart of the situation there and what is the court going to need to understand about that situation or situations or decades, et cetera, whatever might be the situation we're dealing with, what information is going to be, what's relevant to that reason? What are the reasons, how many reasons are there? And then the detail is more of a litigation question, which I'm going to let Kate talk about. I think from here.
Kate (34:19):
I'll start off with saying I have never been involved in a case where the reasons left by a test data have ever helped the defence of a claim. And every single time I've had reasons in a case given they have helped the applicant without exception. I'm waiting on a judgement at the moment where I was for the estate, for the executor of the estate and there's two statutory declarations signed great detail by the mother that deceased as to why she was disinheriting the daughter after a lengthy trial. It's quite obvious that mom didn't even write the stat decks. The other daughter was clearly the author of these statutory declarations and not mom and the judge will that'll be found as a fact by a judge. And when that judgement comes down, that's going to be a very, very, very good example of exactly what I just said. That those reasons never help the defence of a case and they always help an applicant.
Michelle (35:20):
On that topic. I'm just going to go for it. Sorry. When it comes to those statements, I do not think you should stop making them not withstanding what Kate's just said, and I think this is the typical litigator planner conversation here, and Kate, we've had this conversation so many times and look, all of us have, because there's obviously skills of thought depending on what you've seen and been exposed truth. And I think yes, they always help the applicant, but I think context is everything. It gives a voice to someone who's not able to have a voice. Yes, it can be a shopping list of what tick off and disprove, et cetera. I fully appreciate that, but this is the optimist in me. I'm also keen to see how the Lord develops in this space. And the more cases we have, sadly that's obviously how it develops, but there could be a change in attitude as the years go on about how those reasons get considered.
(36:13):
But if the reasons don't exist because we're afraid that they'll be helped for the applicant will get the help out of it, then we're not going to see that kind of thing. So that's probably bigger picture thought process, but it's just something that sits in the back of my mind that in my experience of planning, I've had elderly folks, particularly elderly folks, sadly, that have been subject to abuse and their perpetrator is their family member who is entitled to bring an application, an eligible applicant. And they'll say to me, Michelle, I want to leave them out, but I know that it's just going to argue it's going to be an absolute shit fight. What do I do? And of course, you give all the advice, all the options, et cetera. And it might be all they can do is to leave a statement that gives them some semblance of comfort that they've had their say in what's ultimately happened.
(36:57):
And it might be the only thing they can do because it might be through a threat of not seeing the grandchildren that they leave or they deal with the abuse in their lifetimes, the way that they leave their will might be the only way they can respond to the abuse that's been perpetrated against them. And so these sorts of things always play in my mind as conduct issues. And that statement might be all that they will ever be as their way to defend themselves against the conduct that they've had to experience during their lifetime. So yes, they helped the applicant, but I'd hazard against people not using them just because of that fear, if that makes sense.
Kate (37:39):
No, I agree with you and I'm not saying don't do it, don't document them. Oh no, I know. I just, what I'm saying help saying is I've never seen it be helpful, but I've also, and I've said this in the podcast that Michelle and I did about a year ago on this topic, it's very, very rare to ever see such reasons done in a way that has clearly been settled by somebody who knows what the rules of evidence are so that they're actually going to be admissible and able to be relied upon for any basis. I think I've maybe seen that once or twice. A lot of the times solicitors say, yeah, sure, if you want to document your reason to document, write it all down on a piece of paper and we'll keep. And so then you get the ramblings of often somebody who's not particularly articulate as Yeah, or just clearly their sense of reality is a little bit different and...
Michelle (38:34):
Well, it's always biassed, it's always someone's story as you said right at the beginning, Kate, there's always another side and you're never going to know as a planning practitioner, you will never know the other side. So you are just empowering your client to do what they can, reflecting their wishes to document something in fact.
Kate (38:53):
And if they are crazy and it comes across as they're crazy, well then the judge will find that they're crazy. So that might just be the facts. So that's always going to be the situation.
Michelle (39:04):
And I think as a planning practitioner, we've got to remind ourselves that these difficulties, these challenges that people are coming to you with, they existed before they came to you. So you do what you can to help them address it in the context of the advice they're getting from you don't get dragged into it, but just they existed beforehand. It's just trying to help them document it for the purposes of what they're engaging you for as well. And I think that's important to remember because some really heavy stuff that gets talked about in those conversations.
Kate (39:30):
Yeah, because back to the very beginning of this part of the question, it was why would you do it? The reason that you would do it is because it's a relevant factor for the court to take into account on a family provision application what the test data's reasons were. So the test set out in the legislation. Yep. Character and conduct of the applicant. Exactly.
(39:49):
So the test data's reasons for doing something are a relevant factor for the court taking account. It's more about how those reasons are documented and to what use they will ever be able to be in litigation depending upon how they are documented at the time. And telling a client to just go and document them themselves is really I think the worst possible thing that a solicitor could do. If it's that important to a client, they really want their views to be heard, tell them that they should be getting that settled by at least a litigation solicitor who knows the rules of evidence, if not counsel.
Michelle (40:27):
And that's another thing...
Kate (40:29):
Statement that's in admissible format.
Michelle (40:30):
Exactly. There's no reason you cannot engage counsel to support the efficacy of that document for the future. Absolutely no reason because that's exactly right. The evidence issue, I mean how many I've seen of these statements that are written by Joe Blow got all the stuff in there and in fact there's a comment in the comment section at the moment, always make my client write it. I get them to send it to me and I make some comments. It's in their writing, their handwriting, which requires and make it short. That kind of thing. I think there's real value, not just from a practitioner's perspective, but also from the client's perspective to be able to get that out, get that out of that their system so to speak. Because yes, it's for that purpose, but there can be some really good valuable just human stuff to get out of that too, because this is a personal conversation that you're having with your client. So sometimes I need to get it out and that might be enough for them to get it out. It might not be completely at all relevant to what you need from them, but they've got it out, which means you can move to the next part of what you've got to do that's relevant for the documenting side of things. And I just think that's a lot of value in that.
Carrie (41:37):
I wonder if a lawyer hourly rate is cheaper than therapy guys because sometimes I'm so bright that sometimes just doing that spew on paper of all the emotions is actually is very cathartic for a lot of people having called in a few situations where there's been very cases of very much entitling conduct for Shell and as you said, sometimes just it's not necessarily about how it will play out in court, it's the client's opportunity to just get it off their chest.
Michelle (42:08):
And can, I'll say on that topic, I encourage clients to talk about the elephant in the room and actually try to talk through these sorts of wishes that they have. At the end of the day, it's a matter for them, but the wishes that they have with their family to explain if they need to or just give them the insight that they might need to understand the way that they've made their will for X, y and Z reasons. I like to think maybe it's the optimist, maybe I'm just naive, I don't know, but I like to think that may deal proactively with the risk of litigation because they've had the opportunity to have that conversation and the applicant that might be left smaller amount than their siblings or something like that knows it's coming. Okay, yes, it might fuel them, I don't know. But that's a risk that you take and these are the conversations you might have with your client.
(42:56):
Mind you, that's a risk that you take, but it might also open up a conversation that should have been had 10 years ago and that could very well overcome things, stop them before they even start that. It's just you can't know until you try. Really. I was just going to say, because you don't know how relevant that conversation might be for the evidentiary aspect of their family provision later they understood this is all that sort of stuff. I don't know. Again, that's an evidence question, but nonetheless, I just think these conversations can't just fall on deaf ears. You know what I mean in that context.
Kate (43:28):
But what you said, so not so much in the context of reasons for excluding people, et cetera, but just what you said there about the encouraging people to go and have conversations with their family members about what they're doing with their estate. I am a big believer in, I think half of a state litigation would go away if everybody discussed what they had done or what they were doing with their family members at the time they do it or the whole time they do it and have just, I'm about to, I've just bought a house with a partner, we've both got children from previous marriages, so we're about to move Inspective plan, I'm done. Start the section five AA countdown of the two years defacto. Although arguably it's already started when we signed the contract to the house or even earlier, I've always been a big believer in it that if you've discussed, I have already done, and you will, Michelle, you'll be happy to know I've already done it and I've already told both my children and my partner, well my partner's got a copy of it and my children, I've told them what's in it because I don't want there to be any surprises.
(44:34):
And a lot of the time acting show advocates, it's the shock factor and it's the hurt factor of not, well, why didn't they tell me if that's what they wanted to do? And I see it in particular where you're favouring one child over another or in second marriages. Second marriages children or first or prior relationships. As my children tell me all the time, apparently that's the norm is to not discuss it. Most people don't discuss wills and those sorts of just dinner tables.
Michelle (45:04):
Yeah, that's so right. It's a shock factor that I have found and family provision, applicants initial consultation, they're just like, I'm so surprised this is not what we thought. We always understood this. And you know what? It's that hurt. You can see it. If you can read people, you can see the hurt behind and all they want is a answer to their question why? And they don't have the option of having that answered because they're gone. Their parent, their loved one, they're gone. They cannot ever get that question answered. I just think, yeah, I'm a big believer in talking about it. I always encourage my clients to talk about it. I appreciate a lot of private, I get that too. I respect that. But I just think particularly for the ones that have a risky situation that could very well end up in a dispute. Absolutely talk about it. Yes, it's awful. It's uncomfortable. It's the most horrible conversation you'll have, but believe me, it's better than the alternative.
Carrie (45:59):
Really. I always say that, and this is particularly when it comes to even just writing other wishes in your letter of wishes, that it's significantly easier to have a conversation while you're alive than when you're dead.
Michelle (46:10):
And writing reasons isn't necessarily enough because it's one way. You need that two way conversation to not only explain those reasons, but they might be a whole bunch of misunderstandings that have the opportunity to be clarified or fixed. And I just think that there's value in that. At the very least. It might put Kate out of the job one day, but I have a feeling it might not. At the same time.
Kate (46:37):
I'm all for it. I'm all for it. I still get surprised at how appalled I can get on a weekly basis of the way that people behave to people who are supposed to be their loved ones. So gosh, even if it did me out of a job, I would be happy about that. I much prefer to see people doing the right thing. I'm pretty confident I'm not going to be out of a job because most of those people who won't have those conversations will never have those conversations. They haven't had them for the last 60, 70 years with family members. They're not going to start now. I think I'm pretty safe. But you know what? I think even if a couple of people listening to this podcast change the conversation that they have with their clients in these situations, and one or two people a year have those extra conversations with people and so a claim's not brought, then I'd be happy.
Carrie (47:30):
In terms of you have that conversation, Michelle and Kate, do you think there's a structured way that you can do that? Do you engage as facilitator or is it just you need to go sit down and talk to your child? Or is there a way that you have found in your practise, in your experience that works best or...
Michelle (47:47):
I might weigh in first if that's all right? Everyone's different and I think you need to be flexible to address the kind of client that you have in front of you. Some of them are very private and don't talk that openly and easily about that sort of conversation. I think that's something you need to be aware of right from the beginning and adjust accordingly. When you see someone shutting down about that conversation, you need to adjust the language that you might use. But I think in terms of structures, I think what I tend to find works best is one absolutely critical. You have to build that rapport with the client before you have those really tough conversations about what they need to talk about. So because they're just not going to take it on, they're not going to take on board something that's very personal to them and some lawyers telling them how to talk about it.
(48:33):
That can't go down well. But if it's someone that you've built that rapport and they appreciate that you are actually trying to help them do what you are doing in the most effective way, and that's not always the document you end up producing, that might be the entire experience with that lawyer. And I'll just say this, I know that a lot of this conversation, they take time and that therefore means billable hours and it means cost, et cetera. I get that. And yes, some people, and this is that whole value versus the value pricing kind of thing, you are offering value that not everyone can offer. If you are going to sit there and spend the time to build a rapport and have those difficult conversations, that's the experience the client's walking away with in the back of their mind. And that will reflect in the costing. Yes, it costs more time, but I'm hoping that if you've built that relationship well enough with the client that there won't be an issue as much as if you were just documenting something and off you go kind of thing. I think I might've digressed a little bit there. What was the question again?
Kate (49:33):
I don't have a lot to add there Carrie, because I don't do that front end work really, but I see a little bit and I think the people who work a lot in the collaborative space, certainly yes, I going to suggest collaborative, encouraging that kind of collaborative approach where you have, for example, somebody and I think in rural succession, it's a pretty big thing to.
Michelle (49:55):
I mean for those that dunno, I'm in Emerald Central Queensland. It is not easy to shift assets out and sell them in a dispute.
Carrie (50:05):
We had a really good live on farming families and estate planning for them with a lot of these different topics, which don encourage anybody that's seen and is giving advice to farming families to go back and watch that because you're absolutely right. There are so many moving parts and they usually are families and there's lots of different things going on that you need everybody involved.
Michelle (50:25):
Even gimpy gimpy had a matter as dispute matter, a defacto dispute years ago, and that it took two years to get to mediation and it was a property in Gimpy that was the really difficult sticking point. There was not a lot of liquid assets at all. It was a property and you just couldn't shift it. And so that conversation is even more important in situations like that where there is just difficult assets, there's family inheritance, like the multi-generational aspect, whether it's rural or otherwise, they're such important things. Collaborative practise, big fan of that. I'm collaboratively trained myself and you can do very much the pre-death and post death collaborative practise and the pre-death is exactly what you mentioned before, carryback facilitator to talk about the issues getting to the heart of the issues so people have a safe environment to work through the reasons that they want to leave a will certain way, but having the two way conversation, another conversation just in the comments below about anyone using recordings to explain their position to potential beneficiaries. I get that. However, the only issue I would see with that kind of approach would be that it's one way still needs to be two ways to have it valuable for anyone in my opinion.
Carrie (51:43):
Yeah, no, I agree with that. Yeah. Yeah. I think it's because it is a story of two sides and I always say with
Michelle (51:50):
All three or four.
Carrie (51:52):
Well true, but in terms of between the person that got the issue and the person that is the centre of the issue so to speak, is that the truth is always somewhere between the two stories. And we don't really know on that spectrum where the actual truth is. It could be all the way up here. It could be all the way down there. Exactly. And then without being having that other person involved, it's very difficult and having that knowledge. So I'm just conscious of time ladies. So I just wanted to say thank you so much for joining us today and for sharing certainly Kate, I'm going to go and have a heart attack about what you said about it only ever feeding the applicant rather the defence. But as Michelle say...
Michelle (52:28):
On that topic though, Carrie, we did mention that on the airwaves podcast that we did on that topic and that was that two and fro for that very reason.
Kate (52:37):
And it's also, that's not the solicitor's fault. It's not anybody's fault that happens. It's just what the facts are.
Michelle (52:45):
Circumstances are. Remembering they had the issue when they walked into your office, okay, that existed before.
Carrie (52:52):
I think that, as you said, it doesn't necessarily change the fact that the client might want to document their intentions or their wishes or just do that brains beyond paper, so to speak. But it's certainly given us a lot of thought to how to document, why to document, and particularly around things like where you keep the records.
