Author: Sharon Knight

Have you made a Binding Nomination with your Superannuation Fund?

Posted on , updated on by Sharon Knight

Check your last superannuation statement to see if you have made a nomination as to who is going to benefit from your superannuation entitlements after you die.

There are 2 types of nominations one may make: A binding nomination and a non-binding nomination.

 

What is a Non-Binding Nomination?

A non-binding nomination may be made online and does not expire. However, the trustee of your superannuation fund is not bound to distribute your superannuation to your nominated beneficiary upon your death. The trustee may take your nomination into account, however, if it determines that you have dependants who need the funds and who are not your nominated beneficiaries, it has the power and discretion to allocate some or all of the funds to those dependants.

What is a Binding Nomination?

A binding nomination binds the Trustee of the superannuation fund to distribute your superannuation, upon death, to your nominated beneficiaries.

A binding nomination must be made in the form of a Statutory Declaration.

Binding nominations generally expire every 3 years – some superannuation funds allow for “non-lapsing binding nominations” which do not expire.

Alternatively, you may give your Attorney [in your Enduring Power of Attorney], the power to make a binding nomination on your behalf.

If you and your spouse/partner have separated, you may wish to change your nominated beneficiaries from your spouse/partner to your children.

You should speak to your superannuation fund about these options or alternatively contact us to find out more.

 

This article provides information that is general in nature and is not a substitute for legal advice.

New cost provisions and you!

Posted on , updated on by Sharon Knight

New legislation, known as the “Legal Profession Uniform Law 2014” (LPUL) will help ensure all clients make informed choices about the legal services they access and the costs involved.

In our experience, clients want to know three things:

  1. How much will it cost?
  2. What are they going to get for their money?
  3. The possible outcomes: This can only be based on our instructions and the documents produced to us in support of their case.

Assessing proper expectations enables a realistic assessment of possible costs.  As at June 2016, you should expect to spend:

  • A minimum of $3,000 preparing for any day in court;
  • Up to $7,000 for each day spent in court or a tribunal. This figure may include some or all of the $3,000 spent in preparation.

The new Legal Profession Uniform Law 2014 is discussed in the article “The Empowered Client” featured in the August 2015 edition of the “Law Institute Journal of Victoria” (LIJV) by Naomi Murray and Les Harris.

“Fair, reasonable and proportionate costs”

The article explains that a practitioner can only charge costs that are “no more than fair and reasonable in all the circumstances.”

Legal costs must be:

  • Proportionate and reasonably incurred; and
  • Proportionately and reasonable in amount.

Providing cost estimates

The response that clients may get to asking how much legal costs would be is, “How long is a piece of string?” The LPUL now requires lawyers to provide an estimate of total legal costs. However, in many instances this approach is unrealistic, and arguably unhelpful for a client.

At the outset of litigation, it can be very difficult to assess the likely costs, as they will depend on factors such as the strength of the client’s case, the negotiating position adopted by the other side, and even the strategic approach adopted by an opposing lawyer or a self-represented litigant.

Given that an estimate is to be provided to a client at or arguably prior to the time of a formal retainer, and this is often before the practitioner has obtained full instructions and documentation and may need to research and discuss possible options with the client, the ability to give a single estimate is very difficult, and requires assumptions to be made regarding the likely conduct of the matter without much information at all.

One option may be to provide a range of estimates as part of the discussion with the client about the proposed course of action (which is likely to include an exploration of the alternatives), the likely costs of each alternative, with the estimate of total costs being detailed as the estimate of costs for the agreed course of conduct.

We are finalising further information on this issue and it will be uploaded to our website for future reference.

 

Some material reference from: The Empowered Client, Naomi Murray & Liz Harris. Law Institute Journal, August 2015.

This article provides information that is general in nature and is not a substitute for legal advice.

Is it a gift or a loan? How gifts and loans are treated in family law matters

Posted on , updated on by Sharon Knight

It is not uncommon for parents of a child to give their child a gift of money to purchase a property with their spouse/de facto partner, only to have their children separate after the purchase of the property.

How does the Family Court/Federal Circuit Court treat gifts and loans in family law matters when the parties have separated?

Generally, it depends on a number of factors such as:

  1. Was the gift made to both parties or to one person? If it was made to one person then it is likely that the gift would be considered a contribution on the part of that person to the relationship;
  2. How long ago was the gift given? The older the gift, the less weight is attributed to it in assessing contributions of the parties to the asset pool;
  3. Is there evidence of an intention for what the gift is for? It is recommended that along with the gift there is a letter or a note in writing stating what the gift should be used for. Keep a copy of it for your records;Is it a loan instead of a gift?
  4. If it is a loan which is repayable from the child to the parent, it is advisable to have a loan agreement or a financial agreement between the parents, the child and their spouse/de facto partner, stating the terms of what the repayments would be, when the final payment should be etc.

Some spouses/de facto partners have claimed that monies provided to them by their parents are a loan and therefore it is a liability instead of an asset. Generally these “loans” are repayable “on call”, but in reality, the parents would not expect repayment of these “loans” from their children.

The Court may not accept that a “loan” is a genuine loan unless it is properly documented and there is some evidence of repayment and security for the loan.

Speak with one of our lawyers today to enquire about your options on how to protect your gifts to your children!

This article provides information that is general in nature and is not a substitute for legal advice.