THE BLOG

20
Aug

“What about me?”: Wills, fairness and family provisions claims

Just a couple of months after Bob Hawke’s death, he was back in the news. This time, it was his will making headlines. Reports suggesting a “legal brawl brewing” between his daughter and widow fuelled water cooler talk all over Australia.

Was it fair that the former PM was leaving his children and step-child a measly $750,000 payout while second wife Blanche d’Alpuget was left $15 million plus? Would his reputedly disgruntled daughter really resort to contesting the will? Does fairness even matter when it comes to contesting a will?

 

Contesting a will in NSW

Contesting a will because you feel you haven’t been treated fairly involves making a family provision claim.

In NSW, a family provision claim is made by applying to the Supreme Court of New South Wales for a share, or a larger share, from the estate of a person who has died.

A report on will making and contestation in Australia noted that contestation “arises from need, greed or entitlement” with evidence revealing there is a “cohort of financially independent adult children who successfully contest estate distributions.”

The report also revealed that while most wills provide for equal shares for children, family complexity, cultural considerations and complex assets can lead to an unequal allocation of assets.

If you’ve been left out of a will entirely or did not receive what you expected you should receive, you can make a family provision claim – provided you are an “eligible person”.

So, who is an eligible person? The definition includes:

  • the wife or husband of the deceased person
  • a person who was living in a de facto relationship with the deceased person
  • a child of the deceased person (including an adopted child)
  • a former wife or husband of the deceased person
  • a person who was, at any particular time, entirely or partly dependent on the deceased, and who is a grandchild of the deceased person or was at that particular time a member of the same household as the deceased
  • a person who was living in a close personal relationship with the ceased person at the time of their death.

 

How do courts decide these cases? Is it all about “fairness”?

Rather than deciding what’s “fair”, courts are looking at these matters from a slightly different angle. The courts can only make a family provision order where there has not been “adequate provision for the proper maintenance, education or advancement in life” of the person making the claim.

If you make a claim, the legislation contains a long list of factors which the court may consider in determining whether to make an order. These are extensive, and include:

  • the nature and duration of your relationship with the deceased person
  • the nature and extent of any obligations or responsibilities owed by the deceased person to you, to any other person who’s made an application and to any beneficiary of the deceased person’s estate
  • the nature and extent of the deceased person’s estate and any liabilities
  • your financial resources and those of the beneficiaries and any other person making a claim
  • the financial circumstances of any person you are cohabiting with
  • whether you (or any other applicant or beneficiaries) have a physical, intellectual or mental disability
  • your age
  • any contribution you made to the deceased person’s estate, their welfare or their family’s welfare
  • any evidence of statements made by the deceased person,
  • your character and conduct (and any other person’s) before and after the date of the death of the deceased person.

The onus of establishing that there has not been adequate provision for the proper maintenance, education or advancement in life rests with the person making the claim.

The court’s power to make an order is discretionary, and although the legislation and a long line of cases gives guidance, ultimately each case is judged on its own individual facts and circumstances, which are diverse and change from case to case.

 

Making a claim: is it worth it?

The articles circulating about Mr. Hawke’s will aired all the dirty laundry, recounting past and ongoing scandals, from drug addictions to divorce and even an embarrassing fracas at Brisbane Airport. The scenario is often repeated on a smaller scale, with researchers confirming will contests to be “problematic with economic, social and relationship costs.”

The incentives to make a claim, though, are also powerful. For most people, financial need can outweigh any potential downsides. There’s also the fact that contestation has a high rate of success – whether that’s through mediation or the courts.

If you do intend to make a claim, it’s important you get legal advice as soon as possible after the death of the person whose will you wish to contest. A family provision claim must be filed with the court within 12 months of the date of death.

The next chapter in the Hawke saga – the will – highlights common difficulties in modern Australian families, such as step-families. Just what is fair when it comes to dividing up assets? And is it worth resorting to the courts if you feel your share of an estate is inadequate?  Only time will answer these questions for Mr. Hawke’s family.

Liability limited by a scheme approved under Professional Standards Legislation. This post provides a general overview and should not to be relied upon as legal advice or as a substitute for legal advice or as giving rise to a solicitor / client relationship. If you want advice specific to your circumstances, please contact us to arrange an appointment.

 

If you feel you’ve been unfairly treated in a will, make an appointment to see one of our experienced estate lawyers today.

20
Aug

What is marriage separation vs divorce ?

(and every other question we have ever been asked by clients seeking a separation)

No one enters into a marriage expecting or planning for divorce. However, the reality is approximately one third of marriages do end in divorce. The average length of a marriage in Australia is 12 years.

Lawpoint has helped many couples with marriage separation NSW wide. We’ve heard countless different marriage separation stories however, in our initial meetings with clients, we are often asked the same questions. That is because the issues that people find the most stressful following separation tend to be universal.

We’ve decided to collate the most common questions we get asked by those who come to us for their first marriage separation divorce consultation. These are the questions that are playing on the minds of those who have had their fair share of marital problems, have attempted a trial separation or just know that they’re ready to apply for a divorce.

The full list of questions and answers is available for download here. It also offers a general overview of the family law system following separation from a spouse or partner. It should give you a better understanding of the processes involved and the issues which you might have to deal with. It is suitable for those who are going through a marriage separation with children and those who are in a de facto relationship. It should not be relied upon as legal advice or as a substitute for legal advice. If you want advice specific to your circumstances, please contact us to arrange an appointment.

The top three questions asked by those deciding to separate marriage:

Question: Can I get “full child custody”

The term “custody” is no longer used in the family law system. Instead, the issue is who the child “lives with” and how much time they will “spend with” and “communicate with” the other parent.

The most important factor that the court must consider when deciding who a child lives with is what is in the best interests of the child.

Every child has a right to know both their parents and the right to be protected from harm. Unless there are issues with violence or abuse, the law expects that each parent with have equal parental responsibility. This doesn’t mean that each parent gets to spend equal time with the child. Instead, it refers to parents having an equal role in the long term important decisions affecting a child, such as where they go to school, or what medical treatment they receive. Day to day decisions, such as what will the child eat or can the child go to the park to play with friends are decisions left up to the parent with whom the child is spending time on a day to day basis.

If the child spending equal time with each of parent is reasonably practicable, and in the best interests of the child, then then the court will seek to make orders that give effect to that ideal.

However, in reality, often equal time is not practical, especially with a child who is younger, because constant changeovers and the instability of having to move from one residence to another on a constant basis causes disruption to the child. If this is something you are considering by agreement, then you should consider an arrangement that results in your child spending blocks of time with each parent (such as one week with you and one week with the other parent) as that is likely to be less disruptive than 2 or 3 days at a time which results in many more changeovers. There are many other considerations that affect whether equal time is practicable such as how far apart will each a parent live, does one parent have work commitments which make equal time impractical, how well do the parents get along and communicate with one another,

If it is not reasonably practicable for a child to spend equal time with each parent, the next question to decide is whether it is practical for the child to spend substantial and significant time with the other parent. Again, this must be in the best interests of the child.

What this means is that whilst you child may live with you, he or she may spend time with the other parent on a mix of weekends and regular days and nights (for example, one night per week from after school until the start of school the next day, plus each second weekend) and also holidays (for example half of each school holiday period).

Another factor that needs to be considered is who has been the primary carer of the child up to the date of separation? This is an important question because it may impact upon whether each parent has the necessary parenting skills for the child to live with them for extended periods of time, but also because it may also cause the child anxiety or distress if his or her routine with the primary caregiver is suddenly significantly changed.

 

It wasn’t my fault we broke up. Does that help me?

It can be emotionally devastating for a person if the breakdown of the marriage is caused by the fault of the other person, such as infidelity.

However, fault is not a factor in whether a divorce is granted. The only question that the law requires the court to be satisfied of is whether the marriage has broken down irretrievably. In other words, if the court is satisfied that there is no chance that the marriage will reconcile and the parties have been separated for 12 months, the divorce will be granted.

There are some other steps that the court will require such as ensuring that proper arrangements for the care of children aged under 18 years have been made before the divorce will be granted. Also, couples whose marriage has broken down within 2 years of the marriage are required to attend marriage counselling to discuss or attempt reconciliation before the divorce will be granted.

Fault is also generally not something the law considers when determining a property settlement or parenting issues. You will not get more of the asset pool simply because your spouse cheated on you.

However, in some cases, the “fault” can be relevant to what orders the court makes. For example, if separation has been caused by domestic violence, that will certainly be a relevant factor in determining what is in the best interests of the children when making parenting orders.

 

Everything is in his / her name. What do I do?

Assets acquired by during a marriage are considered to be joint marital assets, regardless of whose name the asset is held in. There are many reasons why couples may place a property in only one party’s name.

Regardless of whose name that asset is held in, the law gives the court the power to adjust ownership of property to ensure that the party who is not the registered owner of that asset gets a just and equitable share of that asset.

In addition, it is not just assets that are acquired during the marriage which form part of the asset pool. Depending on the length of the relationship, assets owned before the marriage can also be treated as joint marital assets and be subject to a property adjustment in the same way. This includes the superannuation interests held in each of the party’s names.

These are all factors that are taken into consideration as a separation agreement is being negotiated.

Marriage, Separation, Divorce eBook

If you are experiencing marriage difficulties and are considering a separation Download the document: I’m separating, what now?! for more frequently asked questions. Or contact our experienced  team at Lawpoint.

 

Liability limited by a scheme approved under Professional Standards Legislation. This post provides a general overview and should not to be relied upon as legal advice or as a substitute for legal advice or as giving rise to a solicitor / client relationship. If you want advice specific to your circumstances, please contact us to arrange an appointment.

20
Aug

Electronic conveyancing is here, and it’s mandatory.

You may have heard that the legal process of buying and selling property is now electronic, but do you know what that means?

PEXA (property Exchange Australia) is an online property exchange where most property transactions are now undertaken. It is a platform that allows lawyers, conveyancers, lenders and other parties to complete transactions and lodge documents to complete the sale and purchase of property or financial settlements relating to mortgages over property.

It does away with paper settlements for most transactions, although there are still some transactions that can be completely lodged manually.

 

The many benefits of electronic conveyancing

Electronic conveyancing allows transactions to be completed quicker and also allows real time lodgement of documents with Land Registry Services.

The old paper settlements meant that sometimes banks could retain documents for days or weeks before lodgement. With electronic conveyancing, these documents are lodged instantly so that buyers can have confidence that their interest in the property is registered immediately to protect their new asset.

Lawyers are no longer required to have to draw bank or collect bank cheques at settlement. Clients are no longer burdened by the need to attend a bank and wait in a long queue to draw bank cheques for settlement of their purchase.

Another benefit of electronic conveyancing is where there is a hiccup at settlement. Ordinarily, we’d have to rebook the settlement to another day and make numerous phone calls to ensure all parties can attend the new settlement date, location and time. With PEXA, new settlement bookings are easily and quickly arranged online with little fuss.

The electronic system also checks and matches information, detecting errors prior to settlement. If an error is detected, the system notifies the relevant parties, reducing the risk of settlement failure due to a data entry error or something that may have been inadvertently missed.

Once everyone is satisfied that the documents are accurate and all is in order, the parties electronically sign the documents to verify the transaction is ready to settle.

After settlement, clients can access their funds quickly, with settlement proceeds usually being deposited into vendor bank accounts within 24 hours. No more collecting bank cheques and having to bank them and wait 3 days for funds to clear.

 

Is PEXA safe?

You may have heard of some cases of fraud through the PEXA systems including the case of Masterchef contestant Dani Venn. Most of these cases were actually related to emails (either the client’s emails or the lawyer/conveyancer) being hacked. Not with the PEXA platform itself.

Still, PEXA since introduced stronger online protections to prevent fraud and has introduced a Residential Buyers Guarantee in cases of fraud.

There are a few steps that you (and we) can take to minimise risks which include:

  • Make sure your email is fully secure.
  • Regularly change your email password.
  • Initiation multi factor authorisation so that you are notified if someone tried to access your email account.
  • Bank account details should always be confirmed verbally and not just sent via email.

With these safety checks in mind, the use of electronic conveyancing offers benefits to all involved in what has traditionally been a cumbersome and protracted process.

For a good conveyancer Newtown to Nelson that can take care of the purchase or sale of your real estate, please contact your trusted team at Lawpoint.

19
Aug

5 things you need to know about Single Touch Payroll

It’s been described as the biggest thing since the GST, however many business owners are still unsure of single touch payroll (STP). Indeed, it was recently reported that 70% of micro-business owners say they don’t know what it is and 55% have “little knowledge” about becoming compliant.

However, ignorance is not bliss when it comes to workplace compliance, as celebrity chef George Calombaris discovered the hard way. He’s been forced to pay a $200,000 “contrition payment” and speak on the importance of workplace compliance at industry events after his restaurant empire underpaid workers to the tune of $7.8 million. He’s also had a taste of the scandal and reputational damage that can flow from such an event.

So, let’s not stick our heads in the sand. Here are five things you need to know about the STP changes.

 

1. The basics: what is Single Touch Payroll?

STP is a new way for employers to report tax and superannuation information to the ATO. Each time you pay your employees, you also report payroll information, including salaries and wages, pay as you go (PAYG) withholding and super information.

 

2. What is changing?

For the first time, you’ll report super liability information – through STP. Super funds will report to the ATO so it will know when you make payments to your employees’ super fund.

This change is intended to help businesses streamline their payroll reporting processes and should save time when it comes to reporting requirements. It will benefit employees by providing greater transparency around super entitlements and payments.

 

3. When do the changes start?

Large employers, those with 20 or more employees, should already be reporting through STP.

If you’re a smaller business, with 19 or less employees, you need to start reporting through STP any time before 30 September 2019.

If you’re an extra small business, with less than four employees, you may be able to access other options, such as quarterly reporting through your registered tax or BAS agent.

 

4. What do I need to do right now?

Check that your payroll, accounting and business management software provides for STP – most do.

If you have four or less employees but do not currently have STP-ready software, investigate these no-cost and low-cost STP solutions that cost less than $10 per month.

When you start reporting, you run your payroll, pay your employees, and give them a payslip as per normal. There’s no need to make any changes to your pay cycle.

Your STP-enabled payroll software then sends the ATO a report which includes the information required by the ATO, including super information. You can read more about the payments that must be reported through STP on the ATO’s website.

Depending on the type of software you use, the next step may involve:

  • the STP information being sent directly to the ATO from your software
  • the STP information being sent through a third party sending service provider (SSP) which is integrated into your software
  • the STP information being sent through a third party sending service provider (SSP) outside your software

At the end of the financial year, things will look a little different too. You’ll no longer have to give your employees a payment summary for the information you’ve already reported and finalised through STP. Instead, once you finalise your STP data, employees will be able to lodge their income tax return using STP information available in ATO online services.

You’ll also no longer need to provide the ATO with a payment summary annual report at the end of the financial year.

 

5. Where can I find out more about STP?

For more information and resources to help you comply with the new STP requirements:

 

Making a little effort now to understand your compliance obligations and implement any changes can save a huge headache down the track. Just ask George.

Liability limited by a scheme approved under Professional Standards Legislation. This post provides a general overview and should not to be relied upon as legal advice or as a substitute for legal advice or as giving rise to a solicitor / client relationship. If you want advice specific to your circumstances, please contact us to arrange an appointment.

 

If you need help managing your business reporting obligations, contact our experienced business lawyers at Lawpoint.