Abuse Law
Abuse Law in Australia: Seeking Justice and Compensation
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How do I write my own will?Dormers does not recommend anyone writes their own will.
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Why should I have a will?If you don’t have a will, then you have no executor and therefore, no one is authorised to represent your estate once you die. An application for Letters of Administration can also cost thousands of dollars and there is complexity around the process. The other thing to remember is that someone you don’t even like or know could end up being your Administrator. If you leave a will, then you can say who manages your estate when you die.
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But I don’t have any assets, what’s the point in having a will?These days, everyone at least has superannuation so there is some risk that may fall within notional estate, in NSW at least. Most super policies also contain life insurance, which can be substantial. This can become part of your estate in some cases.
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What is testamentary capacity?In order for a will to be valid, the will-maker must have testamentary capacity. This means that the will-maker must: understand the nature of making a will and the effect of making a will understand, at least in general terms, the nature and extent of the property of which they are disposing be aware of those who might be thought to have a claim upon their testamentary bounty have the ability to evaluate and discriminate between the respective strengths of the claims of such persons
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Do I truly have testamentary freedom?You are free to set out your wishes and how you would like your assets to be distributed after death in a will. Such a freedom, however, is not absolute in Australia.
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What are mutual wills?Mutual wills can also be called mutual will contracts. Mutual wills form a legally binding contract between two people. It involves two wills being drafted in terms that both parties agree to, and it prohibits either party from revoking or amending their will unless the other party agrees. As a result, when one person dies, both wills can no longer be amended. See also: The Curious Case of the Mutual Will
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What is the difference between a “normal” will and mutual wills?Usually, normal wills are revocable. That means it can be cancelled and you can make a new one. However, mutual wills can only be revoked while both parties are still alive, have capacity, and when there is agreement between the parties. Therefore, mutual wills contain an express or implied agreement not to revoke the will after the death or incapacity of either party.
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What is an example of a mutual will?An example may be where a couple makes an agreement that when the surviving partner dies their property will go to a specified beneficiary. Another example may only deal with the will of one of the parties. For example, when a housekeeper agrees to work for free on the basis that their employer will leave the house and contents to them.
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When would I be involved in a mutual will?A common scenario is when you wish to gift your estate to your surviving spouse to ensure your wealth passes on to your children when your surviving spouse dies. A mutual will would ensure that when you die, your surviving spouse cannot amend or revoke the will. This means your children will become the “ultimate beneficiaries” of your estate. In another case, you may wish to gift your estate directly to your children without gifting anything to your surviving spouse. In such a case, a mutual will could prevent your surviving spouse from making a family provision claim against your estate.
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Are mutual wills confined to husbands and wives?No. Mutual wills can be made between any two people who wish to bind each other to an estate plan.
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What happens if one party breaches the mutual will?If your surviving spouse breaches the mutual will, you can reply on the mutual wills contract to obtain some type of compensation.
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Can you give me an example of how a mutual will would work?Imagine Clare and John are married. They each have a daughter from a previous marriage. They make wills to agree to leave their assets to each other. In such wills, they agree the estate of the surviving spouse would be equally divided between Clare’s daughter and John’s daughter. John dies a few years later and his estate passes to Clare. At the time of John’s death, Clare’s estate is held on a constructive trust. (Constructive trust is an arrangement where a person holds property as the owner for the benefit of at least one beneficiary). This means that Clare must deal with the assets in the estate in the way that was outlined in the mutual will.
If you or someone you know has been a victim of abuse in Australia, it is crucial to understand your rights and the legal options available to you for seeking justice. At Dormer Stanhope, we specialise in abuse law and are dedicated in providing comprehensive legal services to survivors of abuse. On this page, we will provide you with an overview of abuse law in Australia and highlight information and legal avenues to help you navigate this complex area of law.
Types of Abuse
Abuse can take different forms, and it is important to recognise each type to address them appropriately. The main categories of abuse recognised in Australia include:
Physical Abuse
Any intentional use of force causing physical harm, injury, or pain.
Emotional Abuse
Psychological manipulation, threats, intimidation, humiliation, or any behaviour causing emotional distress.
Sexual Abuse
Non-consensual sexual activity, including assault, rape, or any sexual contact without consent.
Childhood Sexual Abuse
Any sexual activity that involves an adult and a child under the age of 18. It includes acts such as molestation, rape, indecent assault, grooming, and exploitation.
Domestic Violence
Any abusive behaviour within an intimate or familial relationship. It can involve physical violence, sexual abuse, emotional or psychological abuse, financial abuse, or controlling behaviours.
Institutional Abuse
This abuse occurs within institutions and organisations responsible for the care of individuals, such as schools, churches, foster care, residential care and hospitals. Institutional abuse can involve physical, sexual, emotional, or neglectful acts.
Financial Abuse
Exploitation of an individual's financial resources or control over their financial affairs without their consent.
Legal Options and Remedies
Criminal Proceedings
If you have been a victim of abuse, you have the right to report the incident to the police. Criminal charges may be filed against the abuser, and if found guilty, they can face penalties, including imprisonment.
Civil Lawsuits
Survivors of abuse can pursue civil lawsuits to seek compensation for the harm they have suffered. These lawsuits can be filed against individuals, institutions, or organisations responsible for the abuse. Compensation may cover medical expenses, therapy costs, loss of earnings, pain and suffering, and other related damages.
Victim Compensation Schemes
Some states and territories have victim compensation schemes that provide financial assistance to victims of crime, including abuse.
Redress Schemes
Australia has established various redress schemes to provide compensation, support, and acknowledgment to survivors of institutional abuse. These schemes aim to streamline the process of seeking redress and provide an alternative to civil litigation.
Restraining Orders
If you are facing ongoing abuse, you can seek a restraining order (also known as an intervention order or apprehended violence order) to protect yourself from further harm. Restraining orders can prohibit the abuser from contacting or approaching you.
Abuse law in Australia is primarily governed by state and territory legislation, with some federal laws addressing specific forms of abuse, such as child abuse and domestic violence. It is essential to familiarise yourself with the legislation relevant to your situation, as laws can vary between jurisdictions.
Once you have characterised the type of abuse that has occurred, it is important to consider the legal options available to you. Legal remedies may include:
Support Services
Recovering from abuse can be a challenging and emotionally draining process. Accessing support services is essential for your well-being. In Australia, numerous organisations offer counselling, legal advice, and tailored support to abuse survivors, including:
Why Choose Us?
At Dormer Stanhope we understand the sensitive nature of abuse cases and the unique challenges survivors face. We listen to your story, respect your confidentiality, and ensure your voice is heard. Our experienced team of lawyers is committed to seeking justice and compensation for survivors of abuse and ensure our clients receive compassionate support throughout the legal process.
Don't wait to seek justice. Contact Dormer Stanhope to schedule a confidential consultation. Our dedicated legal team will provide you with the guidance you need to navigate the legal process and fight for your rights. Remember, you are not alone, and we are here to help you on your journey towards healing and recovery.