Wills & Probate

Anthea Shaw joins Williams + Hughes

Williams + Hughes are delighted to announce that Anthea Shaw has joined our commercial team in our Geraldton office.

Anthea has worked in and around legal offices for over 20 years, and is admitted as a legal practitioner in WA and NSW.

Anthea will be heading up the legal team in our Geraldton office.

Welcome Anthea !

Greg Mohen joins Williams + Hughes

Williams + Hughes are delighted to announce that Greg Mohen has joined our commercial law team.

Greg has over 40 years’ expertise in a range of commercial and private client matters.

In his commercial legal practice he has represented a variety of clients including Local Governments, property development, building, mining services, power infrastructure, accountancy, pharmacy, real estate, settlement, and financial advisory businesses.

Greg also has a strong association with the provision of community legal services. For 8 years between 1992 and 2001 he worked with the Law Society of Western Australia to manage the Law Society’s community legal services, including establishing the Law Access pro bono referral service and overseeing the management of other community projects such as the Litigation Assistance Fund, Law Week and the Francis Burt Law Education Centre.

Greg regularly provides probono legal assistance to individuals and organisations including Australian Red Cross, Cancer Council, the Salvation Army and the Francis Burt Law Education Centre.

Greg was formerly a Partner at Kott Gunning and Civic Legal.

Williams + Hughes Earns Recertification in Meritas, the Leading Global Alliance of Independent Business Law Firms

Williams + Hughes is pleased to announce that it has been awarded recertification in Meritas, a global alliance of independent business law firms. Williams + Hughes joined Meritas in 2014 and, as a condition of its membership, is required to successfully complete recertification every three years. 

Meritas is the only law firm alliance with an established and comprehensive means of monitoring the quality of its member firms, a process that saves clients’ time validating law firm credentials and experience. Meritas membership is selective and by invitation only. Firms are regularly assessed and recertified for the breadth of their practice expertise, client satisfaction and high standards of cybersecurity to keep legal information safe. Meritas’ extensive due diligence process ensures that only firms meeting the tenets of Meritas’ unique Quality Assurance Program are allowed to maintain membership. The measurement of the firm’s performance, based on input from clients, is reflected in a Satisfaction Index score, which is available online on the Meritas website.

“Our values of quality service and client satisfaction align with the Meritas mission to provide a safe and responsive global offering to clients,” said Damian Quail, Director. “We’ve successfully collaborated with colleagues in many jurisdictions around the world to solve client issues and help them seize opportunities outside of this market. We look forward to keeping those vital connections through membership in Meritas.”

The recertification process Williams + Hughes completed to maintain its membership status included exacting self-assessment, peer review by other law firms and client feedback.  

“Businesses trust the Meritas alliance of law firms for top-tier quality, convenience, consistency and value,” said Sona Pancholy, president of Meritas. “Williams + Hughes has demonstrated its commitment to world-class legal standards, and therefore has successfully earned its recertification in Meritas.”

For more information about our our membership in Meritas, please see here

About Meritas 

Meritas’ global alliance of independent, market-leading law firms provides borderless legal services to companies looking to effectively capture opportunities and solve issues anywhere in the world. Companies benefit from local knowledge, collective strength and new efficiencies when they work with Meritas law firms. The personal attention and care they experience is part of Meritas’ industry-first commitment to the utmost in quality of service and putting client priorities above all else. Founded in 1990, Meritas has member firms in 259 markets worldwide with more than 7,500 dedicated, collaborative lawyers. To locate a Meritas resource for a specific need or in a certain market, visit Meritas.org or call +1-612-339-8680

Meritas Welcomes DMAW Lawyers, Adelaide, to the Membership

Leading Adelaide commercial Firm, DMAW Lawyers has been selected to be South Australia’s representative firm for Meritas, the premier global alliance of independent law firms.

DMAW Lawyers will become an integral part of the Australia & New Zealand network of firms as well as the worldwide network of 191 law firms located across 96 countries.

This alliance will enhance DMAW Lawyers’ ability to support South Australian business interests both nationally and internationally.

DMAW’s Lawyer’s Managing Director, Mr Leo Walsh said “One of most attractive benefits of belonging to this network was the opportunity for our lawyers to participate in national and global conversations on business and legal issues. Not only does this expand our thinking, and add to our technical skills, but it help our lawyers build trusted, reliable relationships with lawyers in the regions that matter to our clients. Already we’ve participated in meetings with Insolvency experts across the country and with Senior Partners in Shanghai and Tokyo.”

Mr Mike Worsnop, Partner with Martelli McKegg in New Zealand and Co-Chair of Meritas ANZ: “We are delighted to have DMAW Lawyers join our group. Not only was their quality apparent but they’ve been very easy and responsive to deal with during our discussions.  They clearly demonstrated the type of service clients look for when using a firm in a different market.”

“DMAW Lawyers had to meet the rigorous requirements to become members of Meritas, the only law firm alliance with a Quality Assurance Program that ensures clients receive the same high-quality legal work and service from every Meritas firm.”

Meritas membership is extended by invitation only, and firms are regularly assessed for the breadth of their practice expertise and client satisfaction.

Ms Sona Pancholy, Meritas CEO: “In today’s environment having a commitment to a reliable network is more important than ever. Independent law firms, Corporate Counsel, Business Owners and their Commercial Advisors, all choose their portfolio of trusted legal relationships to match the issues and the markets they want to navigate. For 30 years, Meritas has cultivated a group of the best firms for this purpose.”

About DMAW Lawyers

DMAW Lawyers was established in Adelaide in 2002. The firm has ten Principals and a team of 50 staff. DMAW Lawyers focus on three areas of specialization being Corporate, Transactions, and Disputes for Business Clients.

Website: DMAW Lawyers

About Meritas

Founded in 1990, Meritas is the premier global alliance of independent law firms. As an invitation-only alliance, Meritas firms must adhere to uncompromising service standards to retain membership status. With 192 top-ranking law firms spanning 96 countries, Meritas delivers exceptional legal knowledge, personal attention and proven value to clients worldwide.  

Website:  Meritas 

In Australia and New Zealand, Meritas is represented by leading independent commercial law firms in each of these six major capital cities:

In Australia

Adelaide DMAW Lawyers

Brisbane Bennett & Philp

Melbourne Madgwicks Lawyers

Perth Williams+Hughes

Sydney Swaab  

In New Zealand

Auckland Martelli McKegg

Need a new will ? Witnessing wills during Covid-19 in Western Australia

In Western Australia for a Will to be valid:

• the Will must be in writing
• the person making the Will must have "testamentary capacity"
• the Will must be signed by at least two witnesses in the presence of the person making the Will.

The last requirement may be difficult to satisfy during the Covid-19 emergency period, particularly in places where there are prohibitions on people leaving their homes i.e. lockdowns.

In some jurisdictions, emergency Regulations have been quickly introduced by Governments to get around the difficulty in achieving face to face witnessing. For more details of the approaches taken in New South Wales, Queensland and New Zealand, our associate firms Swaab, Bennett & Philp and Martelli McKegg have written interesting articles on the subject. Click on their names for more details.

There are no new emergency laws in Western Australia dealing with witnessing of Wills - yet- and so the third requirement still applies. Execution of a Will in Western Australia cannot be witnessed remotely e.g. via videoconference. Similarly, digital signing of a Will is unlikely to be legally effective, and is certainly not advisable.

However, the WA Attorney General the Hon John Quigley MLA has acknowledged the important work of the legal profession, saying in correspondence to the Law Society of Western Australia “I have no doubt that Law Society members are providing essential services to the community during this difficult time.” (more details are here). Further, the West Australian Government’s Prohibition on Regional Travel Directions provides that people performing an "essential service" includes those with specialist skills “required for industry or business continuity and maintenance of competitive operation, where the service is time-critical”.

Our view is that preparing and witnessing Wills is an essential, time critical service, particularly for those concerned about Covid-19. This means that you are able to meet with a solicitor in-person for the purposes of executing a Will. Moreover, in Western Australia strict lockdowns have not been implemented, and so attending your solicitor's office is generally not prohibited. 

Our Perth and Geraldton offices are open for business. Some of our staff are working remotely, and the remainder are working in our offices as usual.

We generally prefer videoconference meetings, for the moment, to take Will instructions. We can organise Skype, Zoom, Blue Jeans, Microsoft Teams, Facetime, Webex or other online meetings as needed. Please note that we cannot take instructions to prepare a Will from a person who is not the person making the Will (the testator), so we must be able to speak with them directly, and preferably alone. We must be able to satisfy ourselves that they are speaking without any pressure or undue influence from someone else. We must also satisfy ourselves that they have sufficient mental capacity to give us Will instructions.

For witnessing Wills, we will work with our clients to satisfy the legal requirement to witness signing of a Will. In this regard, we are complying with the Department of Health's recommended measures to reduce the risk of Covid-19 transmission. These guidelines are being regularly updated as the circumstances evolve, and include practising good hygiene and social distancing.

In some cases, these guidelines will prevent us from being able to witness execution of Wills. In other cases, we can arrange in person witnessing. It is not legally necessary that all signatories use the same pen. It is also not legally necessary that all signatories be physically close to each other - witnessing is valid provided all signatories can see each other sign.  

Of course, anyone required to socially isolate - including those diagnosed with COVID-19, awaiting test results for COVID-19, who have been in close contact with a confirmed case of COVID-19, or who have arrived in Australia after midnight on 15 March 2020 - will not be able to attend our office.

At the time of witnessing a Will, we always need to ensure that a person signing the Will understands what they are signing and are signing of their own free will. This is a legal requirement. 

If a Will cannot be witnessed in compliance with the above legal requirements, it may still be possible to establish the validity of the Will via a Court process.

For further information or to arrange a new Will please contact Michelle Hankey or Cassandra Bailey in our office.

This article is general information only, at the date it is posted.  It is not, and should not be relied upon as, legal advice.  This article might not be updated over time and therefore may not reflect changes to the law.  Please feel free to contact us for legal advice that is specific to your situation.

Clarifying the ability of trustees to expand their powers: the decision in Re Application of Country Road Services Pty Ltd

In this article (published in the December 2019 edition of the Law Society Brief magazine) Jonathan Haeusler, Special Counsel, and Michelle Hankey, Solicitor, discuss the court’s decision in Re Application of Country Road Services Pty Ltd [2019] NSWSC 779 regarding a trustee’s role and their ability to expand their powers as trustee. 

The trust instrument that created a trust is the primary source of the trustee’s duties, obligations and powers.  A trustee’s primary duty is to administer the trust in accordance with the terms of the trust instrument.  If a trustee acts outside the terms of the trust instrument, the trustee’s acts will be "ultra vires" i.e. invalid.  In certain circumstances, a trustee may apply to the court for, among other things, an order conferring additional powers on the trustee where it would be “expedient in the management and administration” of the trust property to do so.

However, a trustee cannot seek additional and new powers so that it might administer the trust in a different way from that contemplated in the trust instrument. The trustee should not seek to question the terms of the trust or seek to improve them.

The court’s decision in Re Application of Country Road Services Pty Ltd serves to remind us of the trustee’s function in making applications to the court for orders conferring additional powers on trustees.  In particular, the court’s observations remind us that the trustee’s role is to administer the trust in accordance with the terms of the trust instrument, not to seek to change the trust instrument.  Further, that the usual role of a trustee should be one of neutrality.  

The key take-aways from the court’s decision are set out in Jonathan’s article, which is available here.  

If you have any queries regarding trust administration, please contact Jonathan Haeusler or Michelle Hankey of our office. 

This article is general information only, at the date it is posted.  It is not, and should not be relied upon as, legal advice.  This article might not be updated over time and therefore may not reflect changes to the law.  Please feel free to contact us for legal advice that is specific to your situation.