KM Splatt and Associates - Solicitors frequently asked questions

Frequently Asked Questions

Wills & Estate FAQ's

or simply scroll down to read all listed FAQ's

Personal Injury FAQ's

Who can claim accident compensation?

Anybody who has sustained a physical injury through the manifestation of negligence by another, is entitled to recover compensation, for his or her injuries and any economic loss they incur. In certain instances we offer representation to minors who are able to claim through representation through their legal K.M. Splatt & Associates also handle dependency claims, as well as loss of consortium claims. K.M. Splatt & Associates are also able to help with psychiatric injury claims, if they are the result of a physical injury.

What type of claims do we handle?

K.M. Splatt & Associates handle the following compensation claims.

Motor vehicle accidents
Work accidents.
Public liability.
Serious medical negligence claims.
Occupier accidents.
Military compensation.
Road accidents for drivers, passengers, pedestrians and cyclists.
Product liability.
Criminal compensation.
Aircraft claims, and
Q.Comp claims.

Why is an accredited specialist important?

In addition to having extensive experience, an accredited specialist has completed an advanced study program in a particular area of law. Accredited specialists are those solicitors who have proven their expertise by undertaking a series of assessments and an examination about their area of knowledge.

There are many lawyers who are experienced practitioners in a range of legal matters, and who provide their clients with the benefit of their experience and practical knowledge. However accredited specialists, are those solicitors who have participated in additional assessment to define their expertise. Accredited specialists have an ongoing commitment to their specialisation and are part of an accreditation program, which is updated on an annual basis.

Time limits and work related claims.

In Queensland you must issue proceedings for a work-related injury within 3 years. Furthermore, to protect your rights, you must apply for compensation from WorkCover within 6 months of the date of the accident. Should your application be rejected, you have 28 days to appeal the decision.

Time limits and road accident claims

In Queensland you only have three years from the date of an accident within which to issue proceedings. Minors have until their 21st Birthday. Should you not notify, settle, or issue within this time, then you could lose your rights forever and be prevented from claiming;

Written initial notification must be given to the insurer liable for the accident within one months of the accident, however extensions of time can be granted under certain circumstances.

A notice of claim must be completed and lodged with the insurer liable for the accident within 9 months from the accident date, failing which, your claim may be dismissed by the insurer.

Should the defendant’s vehicle be uninsured, or unidentified, then notice must be given to the nominal defendant within 3 months. Notice of claim must be given within 3 months of the motor vehicle accident in the case of an unidentified/uninsured vehicle.

How long will a compensation claim take?

It is impossible to gauge how long a compensation claim will take. It is possible for a claim to be totally resolved in 9 months, however it is also possible that a claim will run for over 2 years. This is dependent upon;

Seriousness of injuries
Stabilisation of injuries
Denial or Admissions of Liability
Number of defendants
Involvement of minors
Settlement at conferences or progression to trial.

K.M. Splatt and Associates settle approximately of 95% of the claims without incurring the cost and delays of progressing to trial. At all times we strive to resolve your claim as quickly as is professionally possible.

What does the K.M. Splatt & Associates “no-win no-fee” basis mean?

The firm acknowledges that most injured persons become financially distressed as a result of an accident, and may not be able to afford the outlays involved in launching a personal injuries claim. If we feel that your claim has strong prospects of success, we may act for you on a no-win no-fee basis or speculative basis.

Under this speculative basis, we undertake not to render an account for our professional costs unless and until the matter is successfully concluded. We will pay all the necessary outlays via an agreement with our bank.

If a client loses the case, he/she can be ordered to pay the costs of the other side. Registered assets (such as a house) could be sold to pay the costs. THIS IS RARE, and is usually the result of false or fraudulent claims. In all litigation matters we proceed cautiously and if we anticipate that there are significant problems with a case then we will advise the client of the problems and any dangers as they arise.

Do you have to attend our offices?

No, through the virtue of modern technology, phone, e-mail and facsimile we are able to conduct a claim on your behalf without the need for you to attend our offices. We have agents throughout the state whose offices you can attend should you require consultation. Our solicitors regularly travel up north to consult with clients and attend settlement conferences.

However, you are free at any stage to call and arrange an appointment to attend and talk face-to-face with our staff, should you be in Brisbane for any reason. However, the fact that you do not live in Brisbane, and are not able to attend our offices, is no inhibiter upon your claim.

Wills & Estates FAQ's

What is a Will?

A Will is a special written legal document that attracts a special format in order to remove any ambiguity and ensure that your wishes are carried out after death. Essentially it facilitates control over who will receive your assets and belongings after you die as well as who will supervise the distribution and management of your estate. It also allows you to stipulate a guardian for your children.

Who should have a Will?

Anyone over 18 years of age should have a Will. It is the only way you can ensure that your dependants are taken care of and that your assets are passed on to those who you nominate. Even if you do not have many assets a Will is important.

When should a Will be changed?

It would be unreasonable to assume that circumstances in your life will never change; as such as your life changes it may be necessary for your will to change. You made need to change your Will if you divorce, your financial position changes or a beneficiary dies, or circumstances change that will impact on your life.

There are two ways to change a Will. First, you may simply prepare a new Will, which automatically cancels your previous Will. Second, you may prepare a codicil to your current will, which is an addition to your current Will. The rules governing codicils are complicated and K.M. Splatt & Associates are able to assist you in preparing them.

Your Will may be cancelled if you marry or re-marry, you destroy the original, make a new Will or make it clear in writing, either on, or in addition to the Will, demonstrating profoundly that you wish to cancel the will.

If you divorce, your Will, will not be entirely cancelled, only those provisions bequeathing items to your former Wife / Husband will be voided

What can happen if there is no Will?

If there is no Will, your estate will be divided up according to the intestacy rules. Failure to have a Will may also leave your estate vulnerable to creditors and taxes, as well as denying the fulfilment of your wishes after your death.

Can a Will be challenged?

It is possible, despite having your Will carefully drafted by a solicitor, that your Will may be challenged. A Will can be challenged for many reasons, some include: Lack of mental capacity at the time of making the Will; the Will was made under duress, or most commonly, somebody who asserts that you owed them a moral responsibility to provide for feels that you have not left them a fair share.

The Succession Act 1981 provides the guidelines within which a challenge must be mounted. To be able to make claim, they need to provide notice to the Executor of court proceedings within 6 months of the deceased’s death. The only people who can bring a claim are a spouse of the person, a divorced partner who has not remarried, a child of the person, or a dependant as defined under the act.

In an application the court will usually look at the size of the estate along with the particular dynamics of the circumstances, which of course, vary from instance to instance.

The best way to ensure that your Will is NOT challenged is to have your Will prepared by a solicitor.

Who can prepare a Will?

Anybody can prepare a Will, so long as it complies with the provisions provided by the law.

Why should a solicitor prepare a Will?

Wills do not have to be written by a solicitor. You are able to write your will yourself, or use a readily available Will kit. However, the problem with this is that you may not meet the various formalities required by law which may lead to your wishes not being followed, disputes between beneficiaries, or even your Will being declared invalid. If this were to be the case your beneficiaries may be forced to outlay thousands of dollars in legal costs to fund such a dispute. These costs will be deducted from the estate before it is divided up therefore any legal battle can reduce the value of the estate significantly.

If you do make a mistake the Succession Act (1981) will stipulate the action to be taken by the courts, however failure to comply with a regulation does not necessarily mean that your Will will be declared invalid. The courts, pursuant to the Succession Act, may verify a Will as long as it can be demonstrated that the Will complies with the act for the most part.

It is a good idea to use a solicitor for your Will if you fall into any of the following categories:

You have children
You have joint assets, joint bank accounts or other similar arrangements
You are self-employed.
You have assets that are overseas or in another state.
You wish to stipulate special requirements that you wish to have carried out after you die.
You would like to protect your estate in cases whereby a beneficiary divorces or marries.
You have a family company or trust operating
Your have a self managed superannuation fund and;
Seek peace of mind that your assets will be distributed as you wish.

A solicitor will also help to avoid assets being exposed to creditors as well as gearing your estate to gain tax advantages.

So although a solicitor is not necessary it is highly recommended that you consult a solicitor when preparing your Will, or even if you construct your own Will, it would be in your best interests to at least let a solicitor read your Will and advise of any foreseeable problems. Moreover a Will prepared by a solicitor will ensure that your assets will be distributed as you wish and protect you and your family’s interests.

What is estate planning?

Estate planning essentially attempts to avoid a beneficiary suffering financially, reducing the risk of challenges and intra Will disputes. Estate planning reduces taxes and creditor access to assets.

K.M. Splatt & Associates will be able to tailor an estate plan for your requirements. Things to look for however when planning an estate is to ensure such things as;

An administratively cheap and simple plan
A balance between assets for the provision of things necessary for life as well as enjoyment
A strategy that ensures all of your dependants as defined under the Succession Act 1981 are provided for
A strategy that ensures monies and assets are distributed in an effective manner, for example, the establishment of trusts for persons under 18 years of age.

Where do I store my Will?

K.M. Splatt & Associates do not provide a Will storage facility, we will retain a copy of your Will on our file, however suggest that you take your Will with you and store in a safe place.

Can a Husband and Wife make a joint Will?

No, each person needs their own separate individual Will.

Can I make a copy or copies of my Will to store at different locations?

Yes, however it is important that you leave a note with each copy, advising as to where the original document is held.

What if I am an Australian Citizen and live outside of Australia?

Your Will attracts more complex issues. It is impossible to provide definitive advice Online, and we suggest you seek legal advice. You can do so by clicking here.

What if I am an Australian Permanent Resident, but am a citizen of another Country?

As above, your will attracts more complex issues rendering it impossible to provide advice Online. Seek legal advice if you fall in this category. Click here to do so.

How do I go about choosing an Executor? Who can be my executor? Can I have more than one?

Appointing an Executor is arguably the most important part of making a Will. The executor essentially oversees the distribution of your assets after you die. When choosing an executor things that you should keep in mind include:

• They can be independent, and act impartially.
• They are familiar with your wishes, and that you discuss your wishes with them.
• They will ordinarily live longer than you would, and
• The person is trustworthy, and is able to act in a confidential and impartial manner.

Before appointing the executor, you should discuss at length with the would be executor as to what your wishes are, and also to ensure that they are happy to perform the tasks after you pass away. It is always a good idea to stipulate a second executor in your will so that in an event whereby the first executor is unavailable there will be someone there to oversee the distribution of your assets. You can also appoint your solicitor as the executor of your will if you wish to have your estate managed by an independent party.

The tasks that the executor will be required to carry out include:

• In the event where it is necessary, obtaining probate over the will.
• Collecting any debts or other income, and conversely, settling any outstanding debts.
• Making arrangements to claim life insurance should you have a life insurance policy.
• Assuring that your assets are maintained insured and protected before they are distributed.
• Arranging for assets to be sold if so required.
• The final distribution of the assets.

In light of the above it is of utmost importance that you choose an appropriate executor. Although you may feel obliged to appoint a family member, if they are not able to manage money well, it might be in your best interest to appoint somebody who can manage money well along with being able to remain independent. K.M. Splatt & Associates are able to discuss possible executors with you and help you in making your choice.

How long does a Will remain valid?

A Will remains valid until it has been formally revoked by the testator, or has your circumstances have significantly changed (namely divorce etc). To be sure, you should seek legal advice, you can do so by clicking here.

What happens if I lose my will?

As a general rule, you should make a new will, formally revoking all other wills. However copies of Wills held by nominated people can impact upon this. You should seek legal advice immediately.

If I move to Queensland from another state is my will still valid?

This depends upon whether you become domiciled in the other state. The law of succession is governed by domicile, and you should seek legal advice immediately. Click here to do so.

What if I own property in another state but live in Queensland?

Directions regarding you wishes in relating to these matters can be incorporated in your Will by a solicitor, regardless of what state you Will is made in.