Tara (00:50):
A warm welcome back to the Art of Estate Planning Podcast. It's your host, Tara Lucke here, and today's episode is a special one.
(00:59):
It is a recording of a training that we did in the Art of Estate Planning Power Hour with our special guest, Fadzai Mamvura. And the topic is on the impact of domestic violence and separation on the estate planning process. We are really lucky to be joined by Fadzai. She is so generous in sharing her very practical insights. Fadzai is a domestic and family violence lawyer. She has a lot of practical experience advising and guiding clients through these life events. And she shares her insights with us about how we can customise and adapt our practises in estate planning to make sure that we are ensuring the safety of our clients, identifying when there may be concerns about family and domestic violence, and how we can also just set up our matters in a way so that we are identifying these early on and protecting clients. You'll see that it's quite an interactive session.
(02:13):
We structured this as a fireside chat and we ran a lot of polls for the audience. So we'll be doing our best to read those out so you can follow as you're listening along. If you would like to actually watch us and read the polls on the screen, I've put the YouTube link to the conversation in the show notes so you can go and watch the presentation there. I really hope you get a lot out of our conversation today. I certainly learned so much from Fadsi and have also got some really practical takeaways to add into our out of estate planning precedent process as well. So please enjoy this conversation.
Fadzai (02:56):
Thanks Tara for having me. I think this is an important conversation for us to be having, so I'm grateful for being given the opportunity. And look, my insights come from working in family and domestic violence, but I also have an estate planning background. And in one of my previous roles, I worked alongside a migration lawyer. So having that cruxation of experiences made me realise that the client that we save, they come to us with all different backgrounds and it's our job to be able to meet them where they are and assist them as best as we can.
Tara (03:33):
Can we start at the very beginning, Fadzai? How do we identify family violence?
Fadzai (03:40):
The first thing I would say is probably by not asking the question, are you experiencing domestic violence? Because usually our clients sometimes, most of the time, do not know how to name it. They don't know what they're experiencing is domestic violence. There are some who will know what that means, but most clients don't. So try to ask open-end questions. Try to listen to what the client is saying. From an estate planning background, it might be when you're asking about a bank accounts and the client says, "Oh, I have no clue. My partner is the one who controls everything. They're the one in charge of all our finances. I don't even know what our bank balance is," and things like that. So it is in those little words that they might say that might sound like, "Oh, that's a normal relationship." So try and ask open-end questions, check how autonomous the client is in giving their instructions.
(04:44):
That's one of the indicators. If it's a couple and they're coming in, sometimes if it's the one person doing all the talking, again, just try and check, ask open-ended questions to see if they're agreeing to the same thing, if those are actually the instructions coming from both of them or it's one of them. Look at when they're also talking to you, listen to some of the things that they say about what will happen if someone finds out that those are their instructions or are their wishes. If someone says to you, "Oh, my partner is going to be furious if they find out that I changed my will," or if they say, "My wife does not like making decisions independently, so I decide everything." So listen into those little things specifically because when it comes to financial abuse and coercive control, the clients do not know how to name it.
(05:43):
They can explain to you the behaviours, they can explain to you what has been said, how that control has been exercised, but sometimes they don't have the ways to come and say, "Oh, I'm being financially abused or there's coercive control in my relationship." So listen, listen, listen.
Tara (06:01):
Fadzai, I'm not sure if you can see the comments, but Tamsin has written in that she works in a community legal centre part-time and domestic violence is part of the intake questions and she always has it as part of her protocol to interview the wife first.
Fadzai (06:18):
Yeah, that is a good idea. And I think from an Easter planning perspective, particularly when you're talking about the couple's views, I know I used to do that a lot when I was also in private practise where they would both come in at the same time. I think you need to build into your practise what happens in those scenarios. Build it in to make those conversations less awkward. So it might be that when they call for the intake, you're saying, "Oh look, as part of our practise, we know you're coming in as a couple, but we always have a private conversation with each of you." That way you are not then put in an awkward situation where you're sitting there and the client is telling you things that present as domestic violence, but because the perpetrator and the victim are both at the same table, it makes it difficult.
(07:06):
So if you have those private conversations already as part of your intake process, and it has been said from the beginning that yes, you're coming in as a couple, but we may need to interview separately, that will make the process easier for you and also ensures that you're not exposing the person experiencing domestic violence to more harm.
Tara (07:28):
Okay. Yeah, that's a really helpful tip in terms of... Because it's interesting, Fasi, I would never in the normal course, and just full disclosure, I've got no family law experience whatsoever, just very in the sort of estate planning. So I'm not at all an informed practitioner on this, so I'm learning a lot today. Yeah, I would never think to set it up so that we meet separately unless I identified something. But I guess you could even at some point just have breakaways at that first meeting and just say, "Look, it's good to chat separately."
Fadzai (08:10):
Yeah. My view, Tara, and this again comes from practising in estate planning before and them having this domestic violence experience, and I look at how previously we would do it as they're a couple, they're coming in together, they've been married for 35 years. So the easy assumption to make there is that there's no domestic violence if they've been together for that long. So if you don't build it into your intake process that there might come a point where we have to have this private conversation, you have that initial appointment in that one hour, there are all these things that I raised that say to you as a practitioner, there are indicators of domestic violence there. If you have not said to them at the beginning that we might need to have private conversation, how do you then bring it up after the first initial consultation?
(09:02):
So if it's something that your receptionist or whoever sets up the appointments say, "Oh, we know you're coming in as a couple, but just to let you know, our lawyer, there might come a point that she needs to speak to you separately. It's just part of our process." You are not alerting them to what could be happening or what might happen.
Tara (09:22):
Yeah, I love that. And as you're speaking, I'm actually thinking we should add that to our meeting agenda templates because we have wording where we say that we've got to make sure that your interests are aligned and if we feel like you're giving us different instructions, we may have to bow out as a conflict of interest. So it's very easily to just add on to that groundwork and we may need to have separate conversations at some juncture as well. Yeah.
Fadzai (09:51):
A question from Rebecca about how do you quickly build trust if the clients don't know you? That's a difficult one, but my view is that if they've come to you, if they've made the appointment and they're turning up, there is some level of trust there, them just picking you as their lawyer and turning up. So for them to open up to you, it might not happen in that first appointment, to be honest with you. It might happen two, three appointments down the line. And it's all about how you then explain to them what you think about what they have disclosed. You're not making assumptions or making conclusions. And I sometimes say to my clients after they've described to me how they've been living with their partner, because of course in this role they're coming to me after they're separated and they describe all these things to me and I say to them, "Look, we've talked for about an hour or we've been talking for a week or a month.
(10:52):
What you have described to me indicates to me that there might be or might have been domestic violence in your relationship in these various forms." And when you say that to them, you then have to think about what next because you can't just drop that on them and walk away.
Tara (11:13):
We are getting into my next question anyway with the comments coming through, so that's perfect. So yeah, Fatsy, can we talk a little bit more about you identify or you have a suspicion that there might be some domestic violence, so what you might do. And then Angela's also asked about what happens if you raise it with them and they deny that there is any or don't want any help. So do you have any comments on that?
Fadzai (11:39):
I think the first thing to do is don't panic because sometimes clients make religious soldiers that are distressing and it might be distressing to you as the practitioner, but also they've come to you because there's some level of trust. So when a client discloses what to you sounds like domestic violence, remember our job is not to investigate. We need to help them. So if you have identified that there's domestic violence and they've come to you for estate planning assistance, you're not a family law or domestic violence solicitor, I would say the first thing is they've come to you for the estate planning process. Identify what you can help them with in terms of the estate planning process, but also know when you need to collaborate and refer. So you can say to them, "Oh look, we've discussed these things. You've been married for 35 years.
(12:33):
From what you said to me, I think there's domestic violence in your relationship. Would you like me to refer you to someone that can assist you with this?" And I think the other thing that I also need to say is that it is not always people who are in domestic violence relationship. Not everyone wants to leave that relationship. Some people will say, "Look, it's okay. This how it's always been. I don't want to leave this relationship." That is okay, but their safety is the most important thing. So to Angela's question, if a client is denying it and saying, "Oh, I don't know," they might just not be ready to process it or they might say, "I've lived like this for the past 35 years. This is just how it is." Your job in that instance is to just facilitate referrals and say, "Look, you might want to talk to these services to either get support for you to continue living in that relationship, but be safe.
(13:32):
Or if you want support living, these services might also be able to help." And I always say to clients, if you want to continue in that relationship, but we don't think it is safe, get safety planning from a domestic violence service and the safety planning can be done for you to continue living in that relationship. But how do you keep yourself safe? Because unfortunately, domestic violence escalates and sometimes it takes just one thing for things to go wrong. If the client is not at all open to hearing that there's domestic violence, it might just be a question of time that they need to process what has happened or what is happening and we can't force the help on them. The only time you would need to make disclosures about what they've told them is if they're at immediate risk of harm. So if you suspect that someone is going to harm them, if they say to you, "Oh, he says he's going to do this to me," then that needs to be reported.
(14:35):
Or if their children were also going to be at immediate risk of harm. So look at that in terms of your professional obligations about when and how you make those disclosures. But otherwise, if the client doesn't want you to do anything about it, then unfortunately we have to respect their wishes.
Tara (14:52):
And Fadzi, what type of protocols or process changes should we adopt to our normal carriage of the matter so that we are not making things worse or putting our client at risk?
Fadzai (15:09):
So I would say you need to make the client's journey from start to finish and you need to adopt some of these changes, not after you've identified that one of your clients could be a victim. Because if we do that, we might miss some clients. So it has to be, for me, it starts with the intake process. How are your receptionist or admin people when they're doing the first intake call, what questions are they asking to the client? Are they asking the client what their safe communication method is? For example, if the client calls and says, "Oh, I want to make this appointment to change my will, but please don't leave voicemails because my husband checks my phone." So those are things that your admin people should know. If a client says that, "How do we escalate this? What do we need to do?" And the client might not have separated, but she doesn't want to know their spouse to know that they're changing their will.
(16:09):
So it comes from even from the conflict check all the way through to making the entire client's journey, starting from the intake. But also all of your staff should be trained to know what to do if a client is presenting, they're separated and there was domestic violence. It cannot fall on the one admin person or the one lawyer who has the experience on this. And I think the Queensland Law Society, I know we might have people from other states, but I'm sitting in Queensland. The Queensland Law Society has training on domestic violence. So you might not be a domestic violence practitioner, but you can have this training that will alert you to some of the things that clients might say that then determines what happens next. And it should be built into your processes, not wait for a client to present who's experiencing domestic violence.
Tara (17:03):
Fadzai, we've got a couple of poll questions for the people tuning in today. Do you think that's a good juncture to bring them up now? Because I know some of those actually do pose some different practical strategies and I think we can use them as a bit of a way to test that a bit further. So let me just jump through. Do you want to just position the purpose of the polls while I'm getting it set up?
Fadzai (17:30):
I think the polls really, their purpose is just to test us as practitioners to say what do we look for or what are our processes? How do we follow up the instructions? Because the risk is there from start to finish. It doesn't end at intake. It ends even until follow-up stages or storage of the wills and whatever estate planning documents are there. So the polls are really just to test us and to, I would say, make us alert of some of our blind spot. All
Tara (18:03):
Right, so we're dealing with couples. So our scenario is a client attends with her husband to update her will. Before the conference begins, he says she becomes anxious. I usually help her explain things. He says it's okay. And she says, it's okay, he can stay, it's fine. So which initial response best protects the client's autonomy without making an unsupported assumption about family violence? So A, proceed with the husband present because the client has expressly consented. B, we tell the husband to leave because his behaviour establishes coercive control. C, explain the practise routinely meets with each client privately for part of the conference. Then you can assess understanding, voluntariness and communication needs, or D, decline to act unless the client re-books and attends alone. Well, I think everyone's been listening because they've gone with option C, which I understand is the best answer. So I think this really reiterates what we were speaking about earlier.
(19:07):
Yeah.
Fadzai (19:07):
And it goes back to my first point, Tara, that if a private conference is something that's already part of your standard process, when those issues then come up, now separating them doesn't look like you're doing something. It's not an accusation. It's just saying, look, this is part of our standard process. Like we said at the initial intake, there might be times that we need to sleep with you privately and this is where we are now.
Tara (19:33):
So our next one is about financial control and asset pathways. So a client says, "I don't know what we own. I don't know how our assets are held or where our records are kept. My husband always manages the finances. I want everything to go to my children." So what would be the most appropriate next step before advising on testamentary dispositions?
Fadzai (19:55):
The first answer option there is draught the will on the basis that all the assets form part of the estate. B, map the asset control pathways, including ownership, super, trust, companies, debts, authorities, and access to records while exploring whether financial control affect the client's ability to instruct. C, treat the statement as conclusive evidence of financial abuse and suspend the matter. Or D, advise that the issue is outside the scope of estate planning and refer the client elsewhere.
Tara (20:28):
Okay. All right. We've got nearly everyone voting on answer B, which is what you would recommend as the best pathway to FADC.
Fadzai (20:38):
Yeah, definitely. And as always, I think one of the answers there was it's outside the scope of estate planning, so refuse to act and refer them somewhere else. I think as practitioners, this is where collaboration comes in because you might feel like, oh, this is not an estate planning issue. This is financial abuse. They need to go and speak to a domestic violence lawyer. But you don't have to suspend their estate planning. Those things can be done concurrently if we are collaborating and referring the clients to the necessary people to help them and services as well.
Tara (21:16):
Okay. And our next poll is about the monitored phone. So when asked how the practise should communicate, the client says, "Please don't leave voicemails. My husband checks my phone." So what should we do before the practise sends any further communication or records the contact details in the ordinary way? So A, add a no voicemail to the file and otherwise use the practice's standard communication settings. B, contact the husband to clarify whether he accesses the phone. C, agree a safe communication and identity verification protocol with the client, record only what staff need to know, test any proposed channel and flag the matter for controlled handling, or D, tell the client to obtain a new device before the practise can act. All right, everyone is going for C, which again is what you recommend. So you touched on this a little bit earlier, Fadsi, do you want to add anything else?
Fadzai (22:18):
I think when we are reading the poll, again, it goes back to me to the first point of contact. Are we making assumptions about the safe way to communicate with client? Because they've called you and they've given you this number, let's not make assumptions that that's the best way to contact them. Ask them, would you prefer a phone call or an email? And if they say to you in this scenario, no, don't call me or leave voicemails because my husband checks my phone, then that needs to be recorded and make sure that it's not only the admin person who knows. There needs to be something on their file that is obvious to everyone that should not happen because it takes one small thing to put a client at risk, one small misstep and their safety is at risk. So let's just make sure that we are doing that.
(23:14):
And if for any reason a mistake happens and that communication that's not safe happens, we then need to have in our practises ways of how then we make sure that the client is safe if that happens. How do we escalate if something that puts the client at risk happens? How can we help them?
Tara (23:34):
Okay. I think we've got a few more questions. So thank you everyone for participating in the polls and we've got a few more discussion points that we might go back to. So this is also about family separation in the context of domestic violence. So Fadsi, when we know that a client is leaving a domestic violence relationship and in the process of that separation and they are updating their estate plan, could you talk a little bit more about that particular scenario?
Fadzai (24:06):
Yeah. So if they've separated or are separating and they're coming from a relationship that had domestic violence, in my experience, and I think all the data that we have on this shows that separation for that client is the most dangerous time. And that's simply because they're taking one step to claim their power back as a victim survivor. So when they come to us as practitioners, either as estate planning lawyers or family and domestic violence lawyers, we need to be able to assist them, but also make sure that their safety continues to be safeguarded. And separation, although it might be an event, it is a process. So what do we have to immediately look at if they come to you as an estate planning lawyer and say, "Look, I'm separating. There's a domestic violence protection order in place. I just need to change my will." What else are we looking at in terms of the things that are in place?
(25:07):
If they're separating and there's domestic violence, there should be other questions that we are asking. Who still has control of the finances? Who still has access to their emails? We have iCloud storage and all those other storage spaces where things go on the internet. Who still has control of that? Because if they're coming from a relationship where there's been domestic violence, although they might have separated, the person who has been using violence might still have access to all of those things. So we need to think about that. And separation coming from a relationship where there's been domestic violence adds another layer of complexity because the client might be navigating having to set up new housing, what are the parenting arrangements? They might be going through a property settlement and they'll come to me as a family lawyer and they say, "Oh look, you need to immediately revise your estate planning documents." And I send them off to another estate planning lawyer.
(26:07):
Again, the client is not experiencing their life in segments. They're not saying, "Oh, this is the family lawyer side of my life. This is the domestic violence side. This is the estate planning side." They're experiencing all of those things all at once. So our role as practitioners is to try as much as possible to help them navigate through that process. And I'll again go back to collaboration, referrals, but also not then dropping that client or I'm referring them to Fadzai. I'm a family law and domestic violence solicitor. You are the estate planning solicitor. Get authorities if we need to, to have those conversations because the client having to retell their story to me and then retell it to you and someone else and someone else, that's traumatic for them. So if we have the necessary authorities for us to help them and not have them retell their story at every single point, that might assist.
(27:06):
And I would also say for a client living a domestic violence relationship, the process, the separation, not everyone, I'm not saying all of our clients will be like this, but we also need to understand they are reluctant to give instructions or they're not picking up the phone, they're not responding to emails. I sent them those draught documents weeks ago. What's taking so long? The reason being, there's a lot that they're doing. They might be in the family court, domestic violence matters are in the magistrate's court. If they have a visa situation, they might be dealing with the Department of Former Affairs. So there are a lot of intersecting things that happen at that time of separation. So maybe as a practitioner, check in with them and say, "Oh look, I've sent you those documents. I know there's a lot going on, but it is also really important that we finalise your estate planning documents.
(28:00):
What is it that I can do to support you through that?"
Tara (28:03):
And Fadzai, you just touched on it there in terms of the visa requirements as well. And with your background working in a migration law practise, you have come across lots of clients with different backgrounds. So do you want to touch on where we do have clients of diverse backgrounds? Any other particular considerations we should factor in or even just general changes or things we should have in our process to accommodate different backgrounds?
Fadzai (28:35):
Yeah. Look, I'll start by saying let's not put treating people from culturally and linguistically diverse backgrounds as a checklist to say, oh yes, Fadzai is from that. There are a lot of things that happen and culture is dynamic and cultures are different. I want to give two examples. One example, in my practise working across family law, domestic violence and in conjunction with this migration lawyer, we had clients who would present. One of them came to us, she had separated and she said, "Oh look, we have separated. The police have applied for a domestic violence order on my behalf, so I mean the magistrate's court for that. We have young kids. We have to talk about the parenting proceedings and the property." And then as part of that, when I was taking instructions, I then asked her about her estate planning and then she said to me, "Oh yes, I have a will." And I asked for a copy of the will and she also had a copy of her husband's will.
(29:34):
So she gave me both. I read the wills. They did not make sense in the sense that her husband was giving everything to his children from a previous relationship and nothing to her and her children. And in her will, she was giving everything to him and his children from a previous relationship and nothing to her own children. So I asked her and I said, Do you understand what the will says? Was this explained to you? Because I was talking to her through an interpreter. There was nothing on the estate planning documents that said those documents had been interpreted to her. So I said to her, "Do you understand what is in these documents?" Also, being aware of my limitations is in that role as a family and domestic violence solicitor. And she said to me, "No, he did all the speaking because he speaks English.
(30:27):
The lawyer came to our house and just said, Sign this document. This is what has happened. So as you can see, the estate planning in that scenario also becomes urgent because if something happens to this client and we have a will that's clearly not according to wishes, then that poses the problem. So I would say again, we are professionals. We know what our professional obligations are. If a client is presenting and their English, the way they speak English is not fluent or you have doubts about whether they understand what you're saying, get an interpreter. Clients come in with support. Again, we go back to the couple's wills because this was a typical couple and they've been married for 25 plus years. So again, it goes back to are we checking the instructions? They might bring a support person, but is that support person an actual support person or are they also using their influence over them?
(31:27):
And I know, and I don't want to say every person from a diverse background will do this, but sometimes we have the elderly people coming with their children as their support person and those children are doing the translation and interpretation of whatever documents are being worked on. Let's not assume that that support, it's either control or coercion or it's gaining support. We need to have protocols in place to be able to test that those instructions are actually the client's instructions as well and they're not just being put in this position. I'll speak from my own cultural background because I don't speak for all cultures. The way we are socialised is to be afraid of authority, is to listen when we are told to do something. So if you're taking instructions from someone from a culturally and linguistically diverse background, you need to actually test that they're understanding and it's their instructions.
(32:26):
For example, if you are talking to me in my culture and I'm nodding, that doesn't always mean yet. It means I hear what you're saying, but I don't agree with it, but I hear you. I'm nodding to acknowledge that I hear you, but I'm not saying yet. So let's not make assumptions about what people from different backgrounds are saying. Let's also understand their interactions with people. If they're coming to a lawyer's office, usually it's because they think they're in trouble. So let's try to make sure that our practises make it comfortable for them to show up and actually give us the instructions that we need to assist them with their matters.
Tara (33:08):
And Fadzai, as you're speaking, I'm just realising how much I am nodding. I can't nod along. But yeah, that's fascinating because I would assume that nodding means I hear you and I agree. So yeah, it's really important not to make those assumptions. And I've always sort of said, especially in estate planning, when we are dealing with the lay person and not in a corporate setting, even what you said about just trying to reduce that intimidation factor of people having to work with a lawyer and even ditch the suit, think about how your meeting environment is set up. And yeah, I think a lot of the time we don't have to do things to set up our authority. We actually have to do things to build rapport and get people comfortable.
Fadzai (34:00):
Yeah. Look, again, I speak for my own culture and background when I say this, but whenever I speak to clients from a cultural lending diverse community and I say to them, "It is really important that you have a will. It's really important that there's a binding death nomination and all of this, and I need to refer you on." Some of the responses are no, because when I'm talking to the lawyer, they don't understand why I want to do particular things, particular dispositions. They assume that this is what should happen without actually listening to what I am saying and what I'm proposing as part of my estate plan. So for me, I think as estate planning practitioners, we need to do more about making sure that our services are accessible from people from diverse backgrounds. We have a lot of people unfortunately passing away or becoming incapacitated without these documents because our services to an extent are not meeting them where they are and they remain available to certain people and not to others.
(35:08):
So that's my challenge to you.
Tara (35:10):
Yeah. And I mean, I think we can all recognise the accessibility of, well, the whole legal justice system, but estate planning as well, making it high quality but also affordable is our ongoing forever challenge in this space. You mentioned in the scenario that you stepped us through before about where the client had the will that really didn't reflect her instructions or her wishes because she actually didn't know what it said and the importance of making a new will. So can you elaborate a little bit more on these stop gap wills for people who are going through a relationship breakdown, including if they're in the messy middle where they don't have things finalised and how you would navigate the overwhelm and the uncertainty?
Fadzai (36:06):
Yeah. So look, this client, I keep reflecting on her experience because she was really navigating involved. I don't know if when I spoke about her the first time, I also mentioned about her uncertain visa status. So she was also navigating that because she thought her partner visa application had been applied for. That's what she had been told only upon separation to find out that the Department of Form Affairs had already been notified that was not happening. And she had a very short space of time to respond to that. So with me saying to her, "Yo, you need to review your estate planning, that's agent." She's also dealing with the Department of Former Affairs, the magistrates court, the family court, because the family court in that instance becomes agent because if there is a chance that she has to depart Australia, we needed to have initiated proceedings before she left.
(37:01):
So she's navigating four different areas of law without a good command of the English language. I would say to me, one of the most important things that I learned in that role was the importance of everyone who is coming together to assist that client being on the same page, having the relevant authorities to talk to each other and to help this client and to share information to say, "This is where this is up to." Because when you're talking about agent stop get wills, I prefer to call them interim estate planning. Family law matters can take anything between six to 24 months or beyond to resolve. So if a client is separated and we put updating their estate planning on the side and say, "Oh, this is not agent, we'll get to it. Let's deal with the family law matters." And then it takes us six to 24 months to go through that process.
(37:59):
What happens if something unfortunately happens to the client in that time? What do we do? So we need to set up, there's so much overwhelm, there's so much going on with them. And it might be, I think I remember Tara, in one of your precedents, one of your instruction sheets can work as a temporary entered will. That's one of the things that you could do because with that client, you might only get them to sign that and nothing else because it would take them six months to come around and sign their will. So that could be one of the things that you do to make sure that at least there is something in place whilst their family law matter is ongoing. And also as part of our practises, if you then come across a client like that who comes to you and say, "Oh, Fadzai has just said to me, I need to come and see you because I've just separated.
(38:54):
This is what my will and EPOA says. She thinks I need to update them." Do that, but also have something in your system that reminds you to follow up with that client and see if their family law matter has actually been resolved because it has, then their estate planning documents need to be updated. So those are some of the things that I think we need to also put in place.
Tara (39:20):
Yeah. And we always want to sort of tie everything up with a bow and have it all finished, but I do think that personally when someone is in the middle of a separation, we can go for some easy wins. Updating the BDBN is a pretty easy but powerful thing. Having the right attorney and even just a first executor and the beneficiaries, even if it's not, we don't have all the contingency plans and the perfect estate plan in place. Those easy things for the most likely scenarios mean we can at least get something that's better than the current. And then when things have moved on a bit, we'll look at filling the gaps. Tamsen has raised a really good point about domestic violence migrant clients that she comes across in the legal centre. Often they won't have someone they trust to put in the executor role and nearly everyone else is overseas, which it's not ideal to have a person who's not an Australian tax resident as the executor because then the whole estate loses Australian tax residency.
(40:34):
Look, I have to say it is really challenging there. Usually just need one Australian resident. So you can have a combination of overseas people and someone on the ground. Fadzi, I don't want to handle this to you, but do you have anything that you would normally suggest?
Fadzai (40:54):
I'll say this. As a migrant myself, we tend to also build our little villages here. So it might be a matter of asking the client if she has any other people within your community or even outside of her community that she might trust to do this role with someone from overseas, for example. But I'll say this, in doing that, also make sure that doesn't expose the client to further domestic violence because not all those connections are safe connections. It needs to be someone that they trust and that they think would be able to do the right thing for them. I remember during COVID particularly, this came up a lot when it came to guardians of minor children and all the relatives are overseas. So you become creative, you talk to the clients and say, look, is there someone that you can trust to do this whilst your sister or your brother or your mother or whoever is overseas is coming to Australia to come and step into your shoes if anything were to pass away?
(42:00):
And it might be they'll agree to that person knowing it's not long term, but we need someone in the meantime whilst visa applications are happening and things like that to allow them to get into the country.
Tara (42:14):
We've got a few more polls, which just to sort of test and let us think practically about the different scenarios. So we've got an amicable separation where a separated client says, "It's amicable. My former partner can still be my attorney. They're still recorded on several financial and personal arrangements. He understands our fit." So which response best reflects a separation sensitive review for estate planning? So option A, leave all arrangements unchanged. The separation is amicable, everything's fine. B, change the will only. The other arrangements operate independently anyway. C, do a review of the full control architecture, so attorney appointments, beneficiary norms, ownership, account and platform access, information, permissions, original documents, and any arrangements affected by separation or current proceedings. Or D, reach out to the former partner to confirm the existing arrangements remain suitable. Everyone is going for C, which that's what my vote is as well.
(43:24):
So do you want to just comment a little bit, Fancy, on when people say things are amicable and okey-dokey?
Fadzai (43:31):
Yeah, we hear that as well as family lawyers. And look, it being amicable does not, like it says does not remove the need for an informed review. Let's not gloss over these issues with the clients. We need to understand what they mean by amicable. It might be amicable because she has experienced domestic violence for so long she just wants out and she wants everything to end quickly if possible in terms of their connection. Or if this person is still their attorney, they might be amicable today, but in six months time when they get a new partner, what's going to happen? So we need also to be able to test those things with the client. And even if there's no family violence that has been disclosed, we look at what access that this person still have and will have ongoing and what if they stop being amicable, what then happens in that instance?
Tara (44:28):
So our next one, I'll just set that up as well. So a client attends with her adult son. He answers most of the questions and when asked about who she wants to be the intended beneficiary, she looks to him for responding and he explains that family decision-making is important in their culture. So what process best respects that context while allowing the solicitor to assess the client's understanding, voluntariness, and independent instructions? So A, proceed entirely through the son because family involvement is culturally appropriate. B, exclude the son immediately and treat his involvement as undue influence. C, explain the solicitor's need to hear from the client directly, offer a culturally appropriate and independent interpreter if required, meet privately for part of the conference and ask the client what role she wants to play, or D, conclude the client lacks capacity because she looks to her son before answering.
(45:32):
So everyone's chosen the correct answer, which is perfect. I can see you're all listening. And I think Betsy, do you want to add anything else? You did touch a fair bit on this earlier.
Fadzai (45:43):
Yeah, I think we can be responsive to different cultures, but also making sure that we are getting independent instructions from our clients. And if a client has chosen someone to be their support, let's make sure that they're their support and they're not making the decisions on behalf of the client or influencing the client somehow. I think we have an ageing population, particularly when it comes to migrants at the moment. So I feel like this issue is going to keep coming up where we have those elderly clients coming in with their children or someone else as a support. So let's just be conscious of that, not make assumptions, be culturally responsive and make sure that we're getting independent instructions.
Tara (46:28):
So number six, the recently separated client says her former partner sponsored her visa, keeps her passport and identity documents and has warned her that seeking legal help will affect her ability to remain in Australia. She wants to change her will but is reluctant to provide a residential address. So which response best integrates estate planning, safe service delivery and timely referral without the estate planning lawyer attempting to give migration advice? So A, require the residential address and original passport before opening the matter. B, advise the client that the former partner can't affect her visa status. C, establish safe contact and identity verification arrangements, clarify what information is legally and operationally necessary, obtain independent instructions and offer a prompt referral to a suitably qualified migration and family lawyer or service or D, just defer the estate planning work until the migration issue is resolved. So Fatsy, do you want to add a little bit more to the best answer C?
Fadzai (47:39):
Yeah. Look, I think migration status is something that is used a lot to continue perpetrating domestic violence. And I saw this in my previous role. It's difficult and it's challenging because of the power imbalance as well because of a party's migration status. So as practitioners, we just need again to be aware of our limitations in terms of what advice we can give. From this scenario, I think everyone agrees that what the threats, they can't do that. It's only the Department of Home Affairs who can cancel someone's visa, but we might not have the qualifications to give that advice. So it's always good to know when to refer, but don't forget about the estate planning for this client. That also needs to be taken into account once they're dealing with the migration issue. Also make sure that to some extent you help assist them with their estate planning.
(48:38):
I just have a question that I want to throw back to you, Tara and others. In this scenario, the client said she cannot provide the address for the will. She's afraid to do that. How would you handle that? How would you manage that as part of the estate planning process?
Tara (48:59):
Look, in terms of the address that just goes into the estate planning documents, my take on that is it's really just there for an identification process in the sense of James Smith of here. It's actually not that important. Plenty of people move and keep their old or prior addresses in there. So I think if you can put a previous address or something, that's fine. Probably the verification of identity issues is I feel where people might get a bit more stuck on just your law society and institute requirements on verifying your client's identity. I think if it's just a will and not a designated service so we don't have to comply with the money laundering tranche requirements, I think that helps and we can just try and look at... Getting the hundred points of ID is probably more of a challenge for me than actually worrying about which address we put in the will.
(50:04):
I know others might take a different view on that, but I wouldn't think it would really have a drastic impact on probate or necessarily even relying on the powers of attorney. And Tamsin saying, did you just do the date of birth instead of the address? Yeah. I wouldn't stress over the address if it were me. I think we can find a workaround that doesn't compromise the will. Yeah. We might do one more, Paul. Is number seven the best one to wrap up with? While you're checking that, Tamsin, we do have an interpreter clause in the TT Precedents Club clause library. I think if you type in and search interpreter or translator, you'll see a clause in there. And there's also a good resource from the Queensland Law Society about, I can't remember now if it's a checklist or something to go on your file about that the interpreter can fill in, but yeah, check that out.
(51:07):
And if you've got any suggestions or improvements, happy to hear that so we can feed it back into the clause library. So when a recently separated client says, "I need a new will," which question most changes the quality and safety of your advice? So A, who do you want to benefit? B, "What is the legal effect of your current relationship status on the existing will? C, what is happening in your life right now? Could it affect your freedom, safety, or the practical effectiveness of this estate planning process? D, what assets do you presently own? Or E, do you have a family lawyer?" So Fadzai, do you want to comment on this?
Fadzai (51:47):
Yeah, and I'm glad everyone got that right. Again, I will say this. Our clients do not experience their lives in segments. They experience their life, it is a whole thing, so we need to understand what is happening in their life and how it could affect their freedom, safety, and the legal effectiveness of anything that we do, either it's family lawyers or as part of the estate planning process. So the question there is we need to tailor our processes to each client and not ask the questions that we always ask all the time. So if a client is going through that separation, let's ask them what is happening in their life. And it could be what led to the separation and they might then disclose that there was domestic violence and you adapt everything. But if they just say, "Oh, I've separated and I need a new will," and you immediately say, "Oh, okay, so in Wusnam is the house registered bank accounts and things like that without investigating the backstory, then we might miss the safety issues that are hidden in there.
Tara (52:56):
Fadzai, I really feel like we could spend at least two hours on this topic. There's a lot to go over and lots of different areas where we could go deep. Thank you so much for sharing your insights and experience with us today. I know we've probably just left everyone with more questions than answers, but I do hope we've got people thinking about processes and procedures and maybe just sort of putting something in the back of our minds so we can be a little bit more alert. I know for me personally, where I don't really have any practical experience in this area that it can be easy to maybe overlook and not have our mind turned to it. So I've definitely taken a lot out of today in terms of just trying to have more awareness in the way that I practise. Thank you so much to everyone who's tuned in and for your questions today.
(53:54):
And yeah, Fadzai, again, thank you so much. It's been really insightful and I'm just so grateful for your generosity. We're going to wrap it up now, but thank you so much everybody. If you miss the beginning or anything like that, you'll get the replay. If you want to share it with anybody as well, please feel free to do that. And yeah, I think there's always a lot that we can keep learning and getting better on in terms of having a practise that's informed about these issues.
Fadzai (54:22):
Thanks, Tara.
