Issues to canvass

Issues to canvass with your client

To support your client properly you need to ensure that you have taken comprehensive instructions and discussed arrangements fully.

  • Have all family members likely to be affected by the agreement been involved (not only members party to the intended agreement)?
  • Are you aware of unequal bargaining positions or any conflict of interest that could lead to unfair or unjust transactions that could be voidable for unconscionability? (See Commercial Bank of Australia v Amadio (1983) 151 CLR 447 and Equity.)
  • Is there potential for misunderstanding due to your client’s cultural views on inheritance and caring roles and their family’s expectations? (Inheritance rights and caring obligations may be determined by family structure, see Radermacher et al. 2009; while caring for parents may be seen as a cultural duty versus a contractual obligation, see discussion in Herd 2002, p. 73.
  • What is your client giving up and getting? Agreements may fail because roles and responsibilities and the details of day-to-day living arrangements were not worked through and agreed on.
  • Does your client need to make a new will? They may need to if they have more than one child and enter into a family agreement.
    If a family agreement has set up a loan to a particular child and the loan is repaid to the estate on the older person’s death, the will can enable the amount of the loan to be distributed to the children equally, reducing the possibility of disputes in relation to the estate.
    A wills agreement can also provide for an advance on an inheritance to care for a parent.