Archive for the ‘Newsletters’ Category

Do you know when to update your Will?

Do you know when to update your Will?

Most people are aware that a valid Will determines how their assets are dealt with after they are gone. Wills generally provide for the appointment of a trusted executor/s and gifts to chosen beneficiaries. They may also appoint guardians for minor children and give direction for specific funeral and burial arrangements.

When to review your Will

Many people make a Will, arrange for it to be safely stored and then forget about it. However, in many situations reviewing your Will is just as important as preparing it, particularly when events occur and your Will no longer reflects your wishes.

Your Will should be reviewed when your personal or financial circumstances change.

The following events might prompt you to review your Will.

Marriage

Generally, the Succession Act 1981 (Qld) revokes a Will upon the marriage of the testator but not provisions of gifts to the testator’s spouse at the time of the testator’s death nor the appointment of that person as executor, trustee or guardian. Similar provisions apply upon the registration of a relationship.

A Will made in contemplation of marriage is not revoked when the marriage takes effect.

If you have married since preparing your Will you should have it reviewed to determine whether it still reflects your wishes. Even if the Will was made in contemplation of marriage to your present spouse, if some time has passed since preparing it, certain other terms of the Will may no longer be desired.

Be aware also that older Wills may fall under previous provisions of legislation and have different effects. As a general rule, Wills older than three years should be reviewed.

Separation

The divorce of a testator revokes a Will to the extent of gifts to the testator’s former spouse, the appointment of the former spouse as executor, trustee or guardian and the grant to the former spouse of a power of appointment. The divorce however does not affect the appointment of a former spouse as trustee of property held for the children of the testator and spouse.

Changes in marital status or relationships should always prompt you to review your Will.

As a divorce will result in some provisions remaining valid and some not, your Will should always be reviewed to take into account your new circumstances.

Note also that many partners are separated for some time before finalising a divorce so your Will should be reviewed once you determine that you and your spouse have separated indefinitely.

Birth of a child

Obviously the birth of a child will warrant revision of your Will to ensure that child is adequately provided for. Your Will can be drafted to distribute assets equally amongst your children, even those born after your Will is made.

Death or ill health of an executor

You may have appointed an executor/trustee of your estate who is no longer alive, aging, mentally or physically unwell, or who has moved away. In these circumstances you might consider appointing a new executor. Your Will can provide for a substitute executor if your appointed executor is unable or unwilling to act. There is no limit to the number of executors you may appoint. Your executors should be capable of administering your estate in accordance with your wishes, which is often carried out under the guidance of a solicitor.

Death of a beneficiary

A gift to a beneficiary who dies before, or within 30 days of the testator, may fail unless a contrary intention is stated in the Will.

If the beneficiary was a child of the deceased then the Succession Act 1981 (Qld) provides that the deceased child’s children will instead take the gift. If the testator has no children and a substitute beneficiary is not nominated the gift falls to the residuary estate. This can have unintended effects.

A Will that nominates a beneficiary who has passed on should be reviewed to ensure that it still has the desired effect.

Disposal of a specific gift

A specific gift is clearly identified and separate to other property of the estate; such as a prestige motor vehicle. If you sell or dispose of such an asset after you make your Will then the gift fails.

The result is that the intended recipient of the gift may receive nothing at all or a much lesser share of the estate than what you intended. This may have a significant effect, particularly if the asset is of substantial value.

Acquisition of interests in a company or partnership

Property owned by a company cannot generally be disposed of by Will however the shares in a company may be gifted. If you acquire an interest in a partnership you should consider what happens to that interest when you die. Most partnership agreements set out what happens when one partner dies and how that partner’s share of the partnership is distributed. New business interests should always prompt reviewing your Will.

Increased wealth, potential challenges to a Will, vulnerable beneficiaries

Your Will may incorporate a testamentary trust to provide for minors, protect beneficiaries under legal incapacity, safeguard beneficiaries’ assets from creditors or family provision claims and provide certain income tax advantages.

If you would like these protective measures incorporated in your estate planning and the value of your assets warrant the administrative and accounting costs of a testamentary trust then it is worthwhile discussing this option with your solicitor.

Summary

Life is unpredictable and change inevitable. For better or worse life changes are likely to impact upon your estate planning. For good measure, you could diarise to review your Will each time your tax return is prepared. Remember that your superannuation, binding death benefit nominations, appointments of power of attorney and enduring guardians also form part of effective life and estate planning. These should also be regularly reviewed.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Choosing a Business Structure

There are four (4) main types of business structures for doing business in Australia, each with their own advantages and disadvantages. A person can carry on business as a sole trader, partnership, trust and company.

The choice of business structure is an important decision to make at the start of a business venture, as the structure can impact on tax implications and reporting requirements during the lifetime of the business. When setting up a business structure, consideration should be given to factors such as how many people will be involved in the business, what the business will do, how much income is likely to be earned from the business and the intended growth of the business.

Sole Trader

A person can carry on a business on his or her own behalf, as a sole trader. A sole trader can trade under his or her own name or a registered business name. The income earned as a sole trader is taxed at the same rate as individual tax payers.

This is the simplest form of business structure, with lower establishment costs and with minimal legal and compliance requirements. The main disadvantage to this type of business structure is that a sole trader is personally liable for all obligations incurred in the course of the business.

Partnership

Two or more individuals can carry on business in partnership, where the income from the business is received jointly. Partnerships are relatively inexpensive to form and operate. Most partnerships are established by a partnership agreement which sets out the rights and obligations of the partners. A partnership itself is not taxable, rather each partner pays tax on their share of the net income of the partnership.

The downside to this type of business structure is that partners are severally and jointly liable for the obligations of the partnership. There is also potential for dispute and loss of trust between the partners.

Trust

Under a trust, a trustee owns the property or assets of the trust and carries on the business on behalf of the beneficiaries of the trust. A trustee can be an individual or a company. A formal Deed is required to set up a trust and there are annual tasks for a trustee to undertake. As such, it can be expensive and complicated to set up and administer a trust.

The advantages of a trust are that there is flexibility in income distribution and income can be streamed to low income tax beneficiaries to take advantage of their lower marginal tax rate. Furthermore, assets can be protected through a properly drafted Deed. The disadvantages are that trusts can be costly to set up and there are more compliance and legal requirements.

Company

A company is a separate legal entity capable of holding assets in its own name. The words “Pty Ltd” after a business name show that the business is a registered legal entity trading in its own right. A company is owned by shareholders and directors manage the company’s day to day business and affairs. The shareholders of a company receive any company profits in the form of dividends. Shareholders can limit their personal liability and are not generally liable for the company debts. Instead, the financial liability of the company is limited to the company assets.

Companies are governed by the Corporations Law and there are a number of duties and obligations for company directors. Primarily, directors have an obligation to act in the best interests of the company. Establishment of a company and ongoing administrative and compliance costs associated with the Corporations Law can be high. There is also a requirement to publicly disclose key information.

Conclusion

Each business will vary and no business owner’s circumstances will be the same. It is advisable to talk to an accountant or solicitor about the costs and risks of each business structure to make sure that the business structure used is the right one for the business and its needs going forward.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Immunisation and Family Law

Some Australian parents have recently begun to question whether to immunise their children, expressing concerns about possible side-effects risks associated with childhood vaccinations.  But what happens if parents are separated and can’t agree?

 Background

Childhood vaccines, introduced in 1932, are said to have greatly reduced illness and deaths from diseases such as whooping cough, polio, measles and mumps.  However, in recent years immunisation rates have fallen amid some parents’ fears about the safety of vaccines, whether vaccines have been adequately tested and concerns about vaccines’ links to conditions such as autism, sudden infant death syndrome and multiple sclerosis.

Approximately 92% of Australian 5 year-old are fully immunised; however, in some areas the figure is lower than that.  Some diseases, whooping cough for example, previously thought to be “extinct”, seem to again be on the rise.

The Australian government maintains a register of the vaccinations received by children under 7 years of age.  Parental eligibility for some family payments is now linked to children’s immunisation status, and in some circumstances unimmunised children may not remain at school or daycare if there is an outbreak of a particular disease.  Exemptions can be obtained if there are approved medical reasons why the child is not immunised.

Who gets to decide?

It is hoped that parents would agree on whether or not to vaccinate their children, perhaps after discussing any concerns with their family doctor.  But what if they can’t agree?  Who gets to decide?

Equal parental responsibility

In the absence of a Court order, both parents, whether separated or not, have equal parental responsibility for their children.  In addition, except in unusual situations, the Court normally orders that both separated parents have equal shared parental responsibility.

What is equal shared parental responsibility?

Equal shared parental responsibility means that the parents both have the right to consult with each other, hopefully agree on and then implement decisions about their children’s long-term care, welfare and development.  Those long-term issues include decisions such as a child’s name and religion, schooling and major health decisions.  Major health decisions are things like an operation, treating a broken bone, commencing certain medication such as Ritalin, or arranging for a child to see a psychologist.  Whether or not to vaccinate a child probably also constitutes a major health decision.

In other words, where parents have equal shared parental responsibility, they share the right to be consulted about and hopefully agree on whether or not to vaccinate their children.  Neither parent has the right to make that decision without consulting with and obtaining the other parent’s consent.

What if we can’t agree?

For some parents, the immunisation debate can become emotionally charged, as they may approach the decision from different lifestyle, wellness and health care philosophies.  One parent may also be concerned not to lose government benefits if the children are not fully vaccinated.

In such circumstances, no matter how much the parents consult with one another, they may never be able to reach agreement.  In addition, the immunisation debate is quite “black and white” – it would not be easy to reach a compromise or middle ground. The parent who opposes vaccination is not likely to agree for the children to receive half their vaccinations, for example; just as the other parent would probably equally strongly believe that the children should get all, not half, their necessary jabs.

Can we go to Court?

If parents cannot agree about how to exercise their equal shared parental responsibility, they may have to ask the Court to decide for them.  Before going to Court, they must first try to resolve their issue through mediation with a family dispute resolution practitioner.

If the parents still can’t agree, going to Court and asking a Judge to decide may be the only option.  The Court generally prefers not to make these sorts of decisions for parents, but if the parents really cannot reach an agreement, then a Judge would ultimately impose his or her decision about whether or not the children should be vaccinated.

Summary

Although childhood vaccines against a range of diseases have been in use for many decades, in some parts of Australia today there is strenuous debate about the need for and safety of immunisation programs.  This debate could be a source of conflict for separated parents.

In most situations, parents have equal shared parental responsibility, meaning that parents share the right to consult with one another and hopefully agree on issues relating to their children’s long-term welfare, which would include decisions about vaccinating their children.  However, if they cannot agree, the Court can be asked to decide for them.

To find out more about your rights regarding the immunisation of your children, call us on 07 3281 6644 or email mail@powerlegal.com.au.

Can your ex-de facto inherit under your Will?

Once upon a time you were happily living together with your de facto partner. Roses were bought, dinners were cooked, finances were shared and Wills were signed leaving all your assets to the other partner in the event of what you then thought of as the far away time of your tragic passing. Thoughts of either of you dying were such a melancholy distraction from the happiness of your lives together, that you put your Wills away in a bottom drawer and never looked at them again.

Unfortunately, however, there wasn’t a fairytale happily ever after ending to this story. You and your partner decided to take your lives in different directions. Joint bank accounts were closed, furniture and other assets were divided; but all the while, your Wills stayed in the bottom drawer, unread and forgotten. Until one of you died.

What happens now?

Your ex-de facto wants his or her share; your other family members think “They were never married. Why should she/ he be entitled to anything?”. It looks like this might get messy.

Are your other family members right?

Many people think that, because they weren’t married, their ex-de facto has no future financial claim on them or their estate. Some people might also think that if they and their ex-partner have divided up their assets, neither one could have a further financial claim on the other. Unfortunately, those assumptions aren’t always correct.

The laws relating to division of assets after a couple separates are completely distinct from those dealing with Wills and inheritances. A Will is not affected by a family law property settlement, which, of itself, cannot prevent someone receiving a gift left to them in their ex-partner’s Will.

So, can your ex-de facto inherit?

According to a recent Western Australian case, the answer might depend on exactly how you referred to your ex-de facto in your Will.

In Blyth v Wilken the Court considered a situation where, in his Will, the deceased left his assets to his now ex-de facto partner, with the parties having separated some three years before the deceased’s death. Eleven years before his death, and at a time when the couple were living together, the deceased made a Will leaving the bulk of his estate to “my de facto wife Kathrine”. The Will had not been changed after the parties separated.

The Court found that by using the words “my de facto wife Kathrine”, the deceased didn’t merely intend to benefit Kathrine; he intended to benefit Kathrine because she was his de facto wife. Accordingly, the Court found that, notwithstanding what the Will said, the deceased would not have wanted Kathrine to benefit from his estate as she was no longer his de facto wife at the time of his death. The gift to Kathrine, therefore, failed and other family members benefitted from the deceased’s estate.

Would different words have made a difference?

The decision in this case depended on the use of the words “my de facto wife Kathrine” in the deceased’s Will. If the Will had merely referred to Kathrine by name, without also describing her as “my de facto wife”, the outcome could well have been very different. That is, despite separating from the deceased almost three years before he died, Kathrine could have received the bulk of her former de facto partner’s estate.

A word of caution

The case of Blyth v Wilken is only one decision of a single Master (not a Judge). The decision is not binding on the West Australian Supreme Court, nor other Courts, which could come to a different decision on similar facts.

Just because your Will refers to “my de facto partner such and such” that is not necessarily a guarantee that that person will not be able to benefit from your estate in the event that you die after ending your relationship with him or her.

Conclusion

In most Australian States and Territories (NSW, Victoria, South Australia, Western Australia and the Northern Territory), separating from your de facto partner will not change your Will.

Any gift in your Will to your ex-de facto could still be valid, despite the fact that you have separated and divided up your assets. It is possible that, based on the decision in Blyth v Wilken, the Court could overturn a gift in your Will to your former de facto, depending on how that gift was worded.

In the ACT, Tasmania and Queensland, termination of a registered de facto relationship will revoke any gift in your Will to your ex-de facto partner. However, this only applies to registered relationships and registered terminations of them; and in the ACT it only applies to registered same sex relationships.

Regardless of where in Australia you live, the safest course of action is to review, and if necessary change, the terms of your Will as soon as possible after the ending of any relationship, even a friendship.

If, for example, your Will leaves your jewellery to “my friend so and so”, would you still want “so and so” to receive that jewellery if you’ve de-friended each other by the time of your death?

Blyth v Wilken suggests that the jewellery may not end up in your former friend’s hands, but would you want to leave that to chance and to the question of whether a Court would follow the Blyth v Wilken decision?

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Being an executor of a deceased estate

After a person dies someone has to look after the assets of that person and pay the person’s debt. Although the person is no longer here, his or her affairs must be finalised and the person to finalise the affairs is appointed by the Will of the deceased.

Where a person is appointed by a Will, that person is called “an executor”.

An executor is chosen by the person making the will to carry out their wishes in managing their estate, and is responsible for the administration and distribution of assets to beneficiaries according to those wishes. An executor may be a friend, a relative, or a professional.

Most people are unaware of the complexities and time involved in administering an estate and may find the role to be a burden.

 

What are the legal steps that are taken after someone dies?

The executor of a Will may need to make an application to the Supreme Court for Probate. This is usually done with the help of a lawyer. Probate is a Court order declaring a deceased’s Will valid and that the person named in the Will as the executor can finalise the deceased’s affairs.It is not always necessary to get a Grant of Probate. The need for a Grant by the Courts has been relaxed over the years, although an application for a Grant is still necessary in many cases.

 When do I need to apply for Probate?

The requirement to apply for a Grant of Probate will depend upon the nature of the assets of the estate. To determine whether a Grant is needed, the person appointed executor in the will must contact the organisations with which the deceased held assets to determine the requirements of those organisations for transfer of those assets to the executor or the beneficiaries. This is best done through your lawyer.

Where a dispute does or is likely to arise over the estate, a person appointed as executor would be wise to apply for a Grant of Probate. Where a person does not have the right to deal with an estate, the person can become personally liable to the beneficiaries.

How to apply for Probate

 Anyone appointed an executor under a Will must firstly determine the deceased’s assets and debts. Once that is known the executor can then determine how the assets can be transferred to the beneficiaries.

In making an application to the Supreme Court, the executor must:

  • advertise the application
  • lodge a formal application with the Court with an affidavit (a sworn statement) containing:
    • proof of the advertisement
    • details about the Will
    • certain details about the deceased person; and
    • the original Will
  • do a search of the Registry records to indicate a previous Grant has not been made; and
  • provide a certified copy of the death certificate.

Paying any debts and distributing the assets

Any debts of the estate must be paid before the estate is distributed. Then the executor distributes the estate in accordance with the will.

After the Grant of Probate from the Supreme Court Registry has been made, evidence of the Grant must be sent to the various places where the deceased’s assets were held (ie. the deceased’s banks or share registries). Those institutions then transfer the assets as directed by the executor or the executor’s lawyer.

Any land in the sole name of the deceased can be transferred to the executor or the beneficiary by lodging the Grant of Probate with the Land Titles Office, together with an application to transfer the land.

Where the deceased owned land in more than one jurisdiction, it may be necessary to apply to the Supreme Court of each jurisdiction for a reseal of the Grant of Probate, before the land can be transferred under the Will.

If you need to know any more about administering an estate, check our section Wills and Estates or please call us on 07 3281 6644 or email mail@powerlegal.com.au.

 

Buying a Rural Property

 Buying a Rural Property

The process of buying a rural property or farm is a little different to buying a residential house in town.

A prudent purchaser should conduct the usual pre-contract inspections on the home and buildings on the rural land. This should include a timber pest inspection and a building inspection to discover any defects that are not usual “wear and tear”. Any issues of concern in these reports should be followed up with licensed tradesmen where required.

In addition, as with “town land” the buyer must beware and will risk financial loss if the proper investigations are not done before entering into a contract.

One of the major considerations when buying rural property is whether the purpose you are buying the property for fits the use allowed by the local council and other state government departments. It is a costly mistake to buy a property say for aquaculture in an area that does not permit that type of agricultural pursuit, or the area may have chemical residue which will destroy your organic farming intentions.

By commissioning searches and enquiries before you enter into a Contract for Sale you can minimize the risk of hidden “surprises” on your rural property.

Chemical Residues, Livestock & Plant Diseases, Noxious Weeds & Animals

If you intend growing crops on your land for sale or raising livestock for market, the presence of chemical residue in the soil can destroy your business. Organochlorines such as DDT were used extensively on farms (and all property) to control pests and the residue can remain for decades in the ground and attach to plants and animals.

Some diseases can stay on the land long after the animals are gone even for long periods of time after de-stocking. Protection zones often prohibit certain activities on farms if affected and may stop you from keeping certain types of animals or stock at all if a significant risk exists. A Local Land Services (LLS) search will disclose some information regarding this.

Specific types of crops can be affected by specific pests for example fruit fly and nematodes. If you intend cropping a thorough investigation by an experienced horticulturalist is recommended and Local Councils often have officers who can assist. You may also want to get a soil test to establish firmly that there are no chemical residue in the soil. P a g e | 2

Noxious weeds and pests can also be a problem on rural land. A search sent to the LLS (previously the Rural Lands Protection Board), can show any notifications or orders on the property for these issues.

Survey

A survey shows the dimensions and boundaries of the property and is particularly important when buying a rural property.

Existing fencing may not be accurate and can give an incorrect picture of the actual land you are buying. If a water source appears to be within the property and in fact it isn’t, a survey will show this error and you can negotiate for purchase of the property with this knowledge. If this is the only water source on the land, the result of not getting a survey might be devastating to you.

Land Use

Aspects of rural land use including development, agricultural use, irrigation and clearing are governed by the local council and state government agencies such as the EPA (Environmental Protection Authority). There are rules on what you can and cannot do on the land and these rules should be checked thoroughly before you buy a property, especially if it is for a specific purpose.

Infrastructure for your farm including building of roads and bridges should be investigated and environmental considerations for your intended use of the land checked to make sure they comply with land use rules.

Access

A right of legal access must be confirmed before you buy a rural property.

Sometimes what looks like access may just be an easement or a stock route that can be changed and leave you unable to access your land. This should be checked particularly around Crown Land areas where they may be “enclosed roads” that look like normal roads but are actually owned by the government and can be closed at any time, possibly denying you access to your property.

Easements

The current plan of the land should be carefully considered for any “proposed” or “intended” easements or rights of way. Easements not on the land at the time of inspection but noted on a plan as approved may impact on your farming in the future. P a g e | 3

Water Entitlements

Rural land without water is not as valuable. To protect your investment you should check whether the water resources are registered as required by local government and state law. Irrigation licences, water access from rivers and water bores all need the appropriate approvals and details should be included in the contract for sale. Dams should also be checked for compliance if required in the area in which you are buying.

Native Title

A search can be obtained to show whether there is a current native title claim on the property and the extent of which this may affect your farming endeavours.

Taxation issues

If you are buying rural land on which to run a business you should discuss your purchase of the land and the type of business you wish to have with a competent accountant experienced in rural taxation who can advise you on GST and CGT implications and tax issues.

Conclusion

Every rural property is different and it is important that you get the right advice and assistance before and after you enter into a contract to buy a property.

Legal professionals who are experienced in rural conveyancing can assist you in properly investigating rural land for any risks to protect your financial investment.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Why it’s a bad idea to write your own Will

Why it’s a bad idea to write your own Will

It is relatively easy to find a free Will template on the internet and fairly cheap to buy a Will “kit” from a newsagent or online. There are also websites that have “data collectors” that take your information and create a Will for you seemingly without any legal expertise required.

So, is it really a good idea to write your own Will?

 Why you need a valid Will

The sole purpose of writing a Will is that you can direct where your assets go when you pass away.

If you have a valid Will your executor applies through the probate process and distributes your estate in accordance with what you have written in your Will. If you hold joint property with your spouse probate is not usually required unless substantial assets are held in your own name.

There are many common situations however where a valid Will is required to properly distribute your estate and look after your family and loved ones.

If you have a Will that is deemed not valid by the probate court then your estate will most likely be exposed to delay in distributing your estate, increased legal and court costs and perhaps resulting in financial hardship and emotional anguish for your family.

Most people think that their situation is simple and that a DIY Will is enough but consider the following situations and whether they may apply to you or someone you know.

 Your home-made Will is lost or cannot be found

When a lawyer prepares a Will for you they usually hold the Will after signing in their safe custody and provide you with copies.

Even if you take the original Will the lawyer will keep properly certified copies of the original Will. If you subsequently lose the original Will your family can ask the court to look at the copy of the Will and allow the wishes in that Will to stand.

If there are no copies the family is put to the expensive task of applying to the probate court for a grant of administration which is a more lengthy and costly method of dealing with an estate than the usual grant of probate.

Your hand-written Will is not signed correctly

There are very strict requirements for the signing and witnessing of Wills, if your Will is not signed correctly or is not witnessed properly it may be invalid.

If your Will does not deal with all of the assets and liabilities that you leave when you die your Will may be ineffective in dealing with those assets.

Once your Will is made even writing on it later or making any changes will invalidate that Will and may render it ineffective, either partly or fully, in dealing with your assets.

You own a business

It is likely that the business will continue to run after you die. You will need a validly appointed executor to run the business until it is either sold or dissolved. You can achieve this in a valid Will.

Consider that the business may have ongoing expenses such as rent and staff costs that still have to be paid and may cause the family hardship until the business can be liquidated if there is no one validly appointed to run the business.

You and your partner are not married

When you purchased the property together it was bought in equal (or unequal) shares as you both have children from a previous relationship.

Again the property may not get transferred to either your de facto partner or your children as a matter of course. If you do not have a valid Will your property cannot be dealt with in a simple and cost-effective way.

Previously made Wills are not automatically revoked when you make a new Will

If you have a Will that you made when you were younger, perhaps leaving all of your estate to your parents, and then move residence and commence a relationship and have children.

If your new Will is invalid your estate may go to your parents not to your new family as you intended and if it does it will be a costly and longer process.

You are married but hold property solely in your name

You may have bought the property when you were single or owned the property from a previous marriage or inherited it from your parents.

If you have no valid Will and no executor to put into effect what you have written in your Will, the property cannot be transferred until the Court appoints an administrator after delay and costs have been incurred.

 If you leave your superannuation in your DIY Will

Superannuation may form part of your estate and be dealt with in accordance with the terms of your Will, but in most cases superannuation will be paid directly to a beneficiary nominated in your superannuation policy without any reference to the terms of your Will.

Whilst you can provide in your Will that your estate be given to whoever you would like there is only a small eligible group of beneficiaries who can directly receive superannuation benefits on your death.

Superannuation funds have particular rules for releasing funds to an estate and an invalid Will makes this process more difficult to navigate.

Again the release of funds is not automatic to your family and your loved ones may suffer hardship if the release of funds is delayed.

 Lawyers are trained to write valid Wills

Your lawyer will always do these two things when drafting your Will:

  • they take into account the strict law requirements for a Will to be considered valid by the state probate court; and
  • they also consider your particular situation and the specific individualised elements you need included in your Will.

Your lawyer will also consider whether you need a guardian for your children, a trustee to run your business, whether an elderly relative needs to remain in your home after you are gone and a myriad of life circumstances that are particular to you.

If you or someone you know wants more information or needs help or advice in preparing a valid Will please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

What to do after Separation

What to do after a family separation and pending divorce

Do you have a friend or relative who has just separated?  If so, the information below  should help.

What is meant by  separation?

Separation in Family Law is defined as the bringing to an end of a marriage or de facto  relationship (which also includes same sex couples). There is no need or ability to  register a separation under Australian Family Law. Separation is a fact which must be  proven if it is disputed by the other party at a later time.

In the case of a divorce, the date of separation is recorded on the Application for Divorce  and is sworn or affirmed to be true and correct by the Applicant. If you cannot prove you  had separated from your spouse at least 12 months before you file your Application for  Divorce, the Court will not grant your divorce.
Therefore, it is a good idea to confirm the separation in writing, even if this is via text
message that can be saved, at or shortly after the time of separation. Often divorce  cases and cases for property settlement in de facto relationships can turn upon whether  or not a party can prove that separation occurred on a particular date.

What about de facto relationships?

In the case of a de facto relationship, particularly where the relationship ends on or  about the two year anniversary, whether or not a property settlement is available can  depend on whether the separation took place before or after the two year anniversary. If the de facto relationship was less than two years long the Court may have no jurisdiction  under the Family Court Act to provide a property settlement. There may be alternate  remedies available or another basis other than the two year requirement to show that a de facto relationship existed.

In addition, there is also a two year limitation period in which to commence the  Application, from the time of separation. In such cases, again, the date of separation can  be significant.

What about if you still live together?

Separation can take place even though the parties live under the one roof and it can  also be a gradual process. In these cases, the Court will need to examine a number of  factors to determine when and if a separation has taken place.

Those factors can include whether the parties:

  • Slept in separate rooms or together after the alleged date of separation;
  • Performed domestic duties such as cooking and washing for each other after the alleged date of separation;
  • Separated their financial affairs to any extent after the date of separation;
  • Lodged or signed any documents informing government agencies of the separation, such as Applications for Centrelink or ATO documents as a single
    person, as opposed to a person in a relationship;
  • Continued to be intimate after the date of alleged separation; and
  • Made it publicly known (such as by telling friends and family), that they had separated.

Ten things to consider if a person has just separated:

  1. Contact your bank or financial institution in writing (by fax or email with your signature appearing) to stop joint funds being removed or liabilities increased.
  2. If you have a Power of Attorney, ensure it is revoked, and have a new one drafted.
  3. Consider whether your nominated death beneficiary for your superannuation entitlements is appropriate.
  4. Photocopy all of your and your ex’s financial documents and put them in a secure location (this should not be your home or motor vehicle).
  5. Look at your Will and consider if it is still what is appropriate and if you do not have a Will have one drafted.
  6. If you have children, contact the Child Support Agency and find out how much is to be paid or is payable.
  7. Do title searches on your properties. If your home is not in your name or is in joint names ensure you place caveats over the properties. If your property is held as a joint tenant, ensure you sever the joint tenancy.
  8. If there has been family violence in the relationship you may need to seek a Restraining Order.
  9. Start a diary which keeps track of time your partner has with the children and any adverse behaviour he/she displays.
  10. Seek advice from an experienced Family Lawyer.

If you need more information, check our section Family Law or if someone you know needs help, get them to call us to speak to one of our solicitors on a no obligation basis on
(07) 3281 6644 or email mail@powerlegal.com.au