49 - December 2010
Advice to Bill Gates
Recently, I was asked to appear on Channel 7’s “Sunrise” breakfast show to talk about Bill Gates who had decided not to leave most of his $56B to his three children. Could they challenge the will?
Here is what I wanted to say:
In Australia and most of the rest of the world, there are three ways that such children would be advised to challenge the will:
Allegations of frequent loss of car keys, forgetting names and having no idea of where a car is parked are dismissed by most judges as normal behaviour. However, I suspect that trying to convince any judge that someone who gives away as much money as Bill Gates is entirely rational would be an uphill struggle, especially if he tried to maintain that his wife encouraged him to do so. I sometimes feel like a walking financial provision application myself.
Claims against rich people alive or dead have always been fairly common as long as I can remember and like Tiger Woods you never know what is coming out of the rough.
What is adequate provision? Well, $56B would do it but anything less may be the subject of a challenge.
I suspect Mr Gate’s children would prefer the whole inheritance neatly divided three ways as most of us do.
Rather than leave my own children locked in expensive and divisive litigation I have decided to take the advice I normally give to my own clients and spend it before I go. I shall leave a note explaining that it was for their own good.
Click here for what I managed to say:
(c) Paul Brennan 2010. All rights reserved.
Contracts don't sweat the small stuff
Up to about $500 most people can manage to accept that they entered into a bad deal. With the addition of every zero this becomes more difficult. I am not saying that people deliberately lie but it just seems that the parties to a contract dispute will divide like two football teams depending on which side their bread is buttered. Respective families and friends act as crazed supporters. The other side is demonized as Nazis.
Where there is no written contract the goal posts shift so that the dispute takes on a “yes it is, no it isn’t” feel with the alleged facts aligning behind both sides to support their respective arguments. This is nothing new and judges decided early on that frequent disputes were “doing their head in” and insisted that some contracts needed to be in writing to try to provide some certainty for instance, guarantees and contracts for the sale of land.
So if the contract wording is clear and unambiguous, it stands unless it is absurd or you have been misled even if you intended something else and the judge knows it. Judges are not allowed to look at the surrounding circumstances which show how wrong it is and must take a blinkered approach. So lawyers normally put a small preamble in the contract to try and explain what the parties intended to do, just in case they mess it up. Also, lawyers put in an "entire contract" clause to ensure that no one says that the written document is only part of the contract.
Some modern judges will desperately and irritatingly (depending on which side you are on) seek ambiguity rather than apply a just and certain, albeit unfair ruling.
It is best to have your lawyer draw up important contracts as at least you can blame him (or to be politically correct – her) if it turns sour.
© Paul Brennan 2010. All rights reserved.
Paul Brennan is a business and property lawyer on the Sunshine Coast, Queensland. Both "Deals and disputes".
Accountants have sense of humour – shock….lawyers make them laugh
After years, of receiving polite applause or even stunned silence to mark the end of my legal presentations, I was surprised to receive the following testimonial:
“From our members feedback - Interactive, informative, interesting, dynamic, entertaining, enthusiastic, started at 1350AD and kept moving, no slides, kept us awake and felt dizzy - it makes it difficult to believe that this was a presentation on Intellectual Property law”
Institute of Chartered Accountants
If I had to put this positive feedback down to any one thing I would say it was - free grog. As in the early days of the Navy, accountants are press ganged into attending continuing legal education and given free alcohol to make it bearable. On the evening of my legal presentation, no one fell out of the rigging but such was the joyous atmosphere, I think that they are making a big mistake conducting their accountancy practices sober.
The biggest laugh of the evening was when I showed them my cash flow forecast.
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The content of the Law & Disorder eZine is to give you legal basics and in some instances included unashamedly to try and make you laugh. In law it is sometimes difficult to work out what is serious and what is just for fun. Therefore, if you plan to do anything legal, rely on your own lawyer’s advice or instruct me to look at the particular facts of your case. Not only will I deny responsibility for the legal content but also for some of the jokes.