Do you have a valid will?

A Will is a document that states how you would like your assets to be distributed when you die. It also identifies people or organisations you would like to be responsible for carrying out your wishes.

It is a legal document, and to be valid, there are a number of processes that must be followed.

According to Section 7 of the Wills Act 1997 (Vic), a Will is not valid unless:

  • It is in writing and signed by the Testator (Will-maker) or by some other person in the presence of and at the direction of the Testator; and
  • The signature is made with the Testator’s intention of executing a Will, whether or not the signature appears at the foot of the Will; and
  • The signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the same time; and
  • At least two of the witnesses attest and sign the Will in the presence of the Testator but not necessarily in the presence of each other.

You must also appoint an Executor. An Executor is someone who is going to manage your estate – i.e. collect your assets, pay your liabilities and distribute your estate to your beneficiaries in accordance with your Will.

 

Why use a lawyer to draw a Will instead of a Will Kit you can buy from the Post Office?

To save money, many people choose to write their own Will. This may do more harm to your beneficiaries than help.

Here’s why you should spend the money:

  1. You may be sure that your Will is valid;
  2. You may minimise the risk of litigation if a person makes a claim against your estate;
  3. You may be asked to put measures in place for scenarios which you have not thought of before but which your lawyer has picked up;
  4. You may be advised how to make your bequests in a way that helps a beneficiary, not harms them.

Don’t forget: It is a part of Hassall’s Litigation Services to minimise the risk of litigation!

 

Case Study

A client wanted to leave her property to her son who was living in it with her. However, her son was receiving Centrelink benefits. If he inherited the house, he would not be entitled to receive those benefits.

If the son did not inherit the property outright upon his mother’s death and instead received a life interest for him to occupy the property i.e. he had the right to live in the property without owning it, he would still be entitled to receive his benefits. This enabled him to maintain his Centrelink benefits and live rent-free in the property.

In this scenario, the Executor would manage the household expenses such as bills which are paid by the Estate. The house remains in the name of the Estate.

 

Excluding people

If you want to exclude a person from benefiting from your Estate, you must state this in your Will and include the reason(s) why. This helps with showing that you intended to exclude a person from your Will and it was not merely an oversight.

 

Final check

Are you sure your Will is created such that your beneficiaries will be taken care of and only the people you want to benefit from your Estate will? We can remove the doubt – speak to us.

 

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

New law. You could go to jail for building without a building permit.

Prior to 24 May 2017, if you build or make renovations to a property without the required building permits, you could be fined or asked to replace/demolish the building/addition, or both.

From 24 May 2017, section 16B of the Building Act (1993) has been amended to include new penalties.

Now, anyone who is in the business of building [including architects, landowners and builders] connected to a project the value of which exceeds the prescribed amount and that has no building permit, can face up to 5 years of jail, or fines of up to $93,000.

A company associated with an illegal renovation [including demolition] can be fined up to $466,000.

This amendment applies to any type of construction or alteration that requires a building permit to be obtained – which generally includes any major structural alteration, or a range of small jobs including adding a window, moving a wall, adding a pergola etc.

Implications for Landowners

A landowner is specifically prohibited from permitting building work to be done on their land without a building permit and/or in breach of the Act, the Regulations or the permit.

It is a defence for the land owner if a building practitioner or architect has been engaged to carry out the building work.

The penalties of this amendment of this law will not apply to projects completed before 24 May 2017 – but you could still be subject to prosecution. If you need assistance in this area, we can help you.

Implications for Builders and other professionals

Building practitioners and architects are specifically prohibited from carrying out building work without a building permit and/or in breach of the Act, the Regulations or the permit.

When engaged to carry out building work, building practitioners and architects must ensure that a building permit has been issued and is in force for that building work, and that the work complies with the Act, the regulations and the permit.

For more details – contact us, or click here for a fact sheet.

New cost provisions and you!

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.

Have you made a Binding Nomination with your Superannuation Fund?

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.

Statutory Demands: Another way to collect your debts!

Not many people are aware of what a Statutory Demand is and how it can help them.

If your debtor is a company and you have supplied goods to them, you can issue the debtor with a Statutory Demand.

Instead of issuing proceedings in Court, you can serve a Statutory Demand on the debtor if:

The debt is OVER AUD$2,000; and
There is NO dispute over the amount owing and the supply of goods or services.
If you do serve a Statutory Demand, the debtor has 21 days to pay the debt. If the debtor disputes the Statutory Demand, it then can to apply to the Supreme Court to have the Statutory Demand set aside within that 21 day period.

If they do neither of the above – then there is a presumption that the company is insolvent – which places you into a position to wind them up (or put them into liquidation).

If the debtor wants to stay in business and there is no basis upon which it can apply to the Supreme Court to have the Statutory Demand set aside, this process is significantly cheaper than issuing a proceeding in Court.

How can we help?

After being provided with copies of the invoices, we can draft a Statutory Demand for you. You will have to swear on an affidavit to say the goods and the invoice(s) have been delivered and the money is still outstanding and there is no dispute as to the amount owed.

The first step is easy, call us on 9555-7233 or email us and we will begin the process for you.

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