Archive for the ‘Newsletters’ Category

Being Arrested or Questioned by Police

The law dealing with arrest and interrogation in Queensland is complicated. It is designed to strike a proper balance between individual rights on the one hand, and the community’s need for effective law enforcement on the other.

Situations where a person’s rights are not observed are common, and it is difficult to do anything about this. The best way to make sure your rights are observed is to know what they are and to speak out if a problem arises. Remember, many people are convicted because of admissions they have made to police. Anything you say to the police may be used by them, even if you are not formally interviewed.

Your rights and obligations when dealing with the police

When dealing with the police you do not have to:

  • answer any questions or make any statements.
  • go to a police station unless you have been arrested (taken into custody) and have been told what you will be charged with;
  • participate in an identification line-up;
  • undergo a forensic procedure unless a court orders you to do so.

You have the right to make a telephone call to a friend and a lawyer from the police station. The police have the power to take your fingerprints if they believe you have committed a serious offence and you are aged 15 or over. If you are aged from 10 to 14, the police need a court order. You must give your name and address if the police ask you. The police must tell you their reason for asking, and give their name, rank and place of work if you ask for it.

Arrest without warrant

The powers of arrest are set out in the Police Powers and Responsibilities Act. You can be arrested and taken to a police station to be questioned if the police think that you have committed a crime. A person should only be arrested if it is necessary to:

  • ensure the appearance of the offender in court;
  • to preserve public order;
  • to prevent the continuation or repetition of the offence; or
  • for the safety or welfare of the public or the offender.

The police do not have to arrest a person found committing an offence, if they believe the case can be dealt with by a Notice to Appear. A Notice to Appear is a notice, issued by the Police, telling a person that they must go to court on a specified date.

If you identify as an Aboriginal or Torres Strait Islander, then under their operating procedures, the police must notify, or attempt to notify a representative from a legal aid organisation. This ensures that you have access to support and legal representation.

Arrest by warrant

Arrests by warrant are the exception rather than the rule. The warrant names the person to be arrested and should be read and shown to that person at the time of arrest. It does not have to be handed to the person. A warrant is normally used in situations where a person on bail or summons has failed to attend court as required, there is a hunt for an offender, or in the case of an escapee from prison.

How long can I be detained?

There is no specified amount of time the police can detain you. The law says you must be either released on bail or brought before a judge within a reasonable time. What a “reasonable time” is will depend on the facts of each particular case. A number of factors determine how long this may be including the time needed to bring you to the court; the number of offences and how complicated they are; time you spend talking to a lawyer, friend, relative or an independent third person; and time spent while you receive medical attention.

Being searched

Police can only search you or your car if they have reasonable grounds to suspect they will find illegal drugs, weapons or stolen goods OR to preserve evidence. For any other purpose they will need a search warrant.

Police can search a house without a warrant if they believe they will find someone who has committed a serious indictable crime or who has escaped custody. If police come to your house to search, ask to see the warrant.

17 years and Under

In Queensland, 17 year olds are treated as adults by the criminal justice system. See juvenile offences for information relating to offenders under the age of 17 years.

People with a disability

The legal system often has difficulty in dealing with people who have disabilities, particularly where those disabilities involve some form of mental impairment. If a person with a mental illness or intellectual disability has been charged with a crime, specific laws and procedures may be available from the time of the police interview to sentencing. Police are required to have an Independent Third Person present when interviewing a suspect who has a psychiatric or intellectual disability. If you have questions about how someone with a disability has been treated, you should speak to one of our lawyers.

Making a complaint about police behaviour

Ask one of our lawyers to help you if you want to make a complaint against the police. Write down everything that happened as soon as possible, including the names of police, the time and date. If you have been hurt see a doctor as soon as possible and make sure you take photographs of your injuries.

If you have any questions or would like to speak with one of our solicitors, please contact us.

Including Cryptocurrency in Your Will or Estate Plan

Cryptocurrency has emerged as a disruptive force in the financial world, offering a new frontier for investment and wealth accumulation. As both businesses and private interests increasingly diversify their portfolios with digital assets, it becomes crucial to consider the incorporation of cryptocurrency into estate planning. This article explores the complexities and considerations surrounding this innovative asset class, addressing what cryptocurrency is, the challenges in estate planning, storage and accessibility, as well as tax implications.

What is Cryptocurrency?

Cryptocurrency is a digital (or virtual) form of currency. It relies on cryptographic techniques to secure transactions and control the creation of new units. The most well-known cryptocurrency is Bitcoin, but there are thousands of other digital currencies with distinct features and purposes.

Unlike traditional currencies issued by governments and central banks, cryptocurrencies are decentralised, operating on blockchain technology. This means that no single entity, like a central bank, controls the currency, making it both a revolutionary investment opportunity and a unique challenge for estate planning.

Cryptocurrency – Challenges in Estate Planning

While once a novelty, in recent years it has become more common for deceased estates to include some form of cryptocurrency. Despite this increasing popularity, incorporating this asset class into an estate plan still requires careful consideration and proactive measures due to the number of inherent challenges.

Managing a deceased estate that includes cryptocurrency is more complex than administering an estate with only traditional assets. One of the challenges is that it is more difficult to prove ownership of cryptocurrency than it is traditional asset classes such as cash, shares, and real estate. In fact, identifying the existence and ownership of a cryptocurrency asset is often the greatest challenge for executors of estates involving cryptocurrency.

To help address this challenge, owners of cryptocurrency need to maintain detailed records of their holdings, wallet addresses, and private keys. Of course, this must be done in such a way that the information is kept secure during a person’s lifetime but can be easily accessed after their death. Ideally, legal documentation, such as a will or trust, should explicitly describe the nature of all cryptocurrency holdings to ensure that these invisible assets are not overlooked during the management of the deceased estate.

As part of your estate planning, you should also explain any process you have put in place for backup and recovery of cryptocurrency accounts. If something happens to you, your executor should be able to retrieve the assets without obstacle.

To help reduce complexity, your estate plan can also include information about how valuation of the cryptocurrency asset will be carried out to ensure equitable distribution among beneficiaries.

Cryptocurrency Storage

Estate planning with cryptocurrency necessitates the establishment of secure storage solutions and clear instructions for executors. Many cryptocurrency investors use offline hardware wallets to store their assets securely. If you choose this approach, you should ensure that your executor knows the location of your hardware wallet, its PIN, and recovery seed.

Other investors prefer offline paper wallets for added security – old school paper based records containing details of cryptocurrency storage and transactions. If that is your preference, you should instruct your executor on how to access and use these paper wallets.

For online wallets or exchange accounts, your estate documents should include clear guidance on how to access these assets, including login credentials, two-factor authentication details, and any other necessary information.

Tax Implications

Cryptocurrency’s tax implications are complex and can significantly impact your estate plan. Given the evolving nature of cryptocurrency regulations, we recommend consulting with tax experts and legal professionals who specialise in cryptocurrency to ensure compliance with tax laws.

Broadly speaking, in Australia cryptocurrency transactions are subject to capital gains tax, and beneficiaries who inherit cryptocurrency may incur tax liabilities when they eventually dispose of the assets. To help minimise these liabilities, adequate guidance on tax planning should be sought as part of the estate planning process.

Conclusion

If you own cryptocurrency, it is important to think about how to incorporate this asset into your estate planning. Cryptocurrency’s decentralised nature and its potential for growth make it a valuable asset class, but it also introduces unique challenges in estate planning.

To address these challenges effectively, it is imperative to educate your chosen executor on cryptocurrency, establish secure storage and accessibility procedures, and understand the tax implications associated with digital assets. Seeking guidance from experts in the field, including financial advisors, cryptocurrency tax specialists, and legal professionals, is key to creating a robust estate plan that accommodates this revolutionary asset class.

This is general information only and you should obtain professional advice relevant to your circumstances. 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.

How Mediation Can Help Resolve Your Family Law Matter

Mediation is a valuable and widely utilised method for resolving legal matters. This alternative form of dispute resolution is particularly valuable when it is desirable to maintain a relationship with the other party after the dispute, as is often the case in family law matters. Mediation offers a collaborative and less adversarial approach to addressing family law issues related to separation, divorce, parenting, property division, and more. This article explores how mediation works, when it can be used, the benefits it offers, what to do when it does not work or may not be appropriate, and how to prepare for family law mediation.

How Does Mediation Work?

Mediation is a structured process in which an impartial third party, known as a mediator, assists parties in reaching agreements on various legal issues. Typically, there are several different stages of mediation.

The first stage is the initial meeting between the parties and the mediator. The mediator will explain their role in facilitating communication and negotiation and describe the mediation process. The mediator may also use this opportunity to ask each party to outline their understanding of the issues in dispute.

The next stage of the mediation is information sharing. The mediator will prompt the parties to share relevant information, documents, and concerns about the issues. Transparency and open communication are crucial for effective mediation. For this reason, mediation is often undertaken on a “no prejudice” basis, meaning that the parties can freely share information to try and reach a solution, without this information being used against them in any later court action.

After the key information has been shared by both parties, the negotiation stage will begin. The mediator will guide discussions and help the parties to explore possible solutions. Skilled mediators use various techniques to foster communication and encourage compromise. This stage is usually the longest in duration and may take several hours or an entire day to try and reach a solution.

Of course, the final stage of the process – the agreement – does not occur in every case. However, if the parties do manage to reach an agreement on one or more issues, the mediator will assist in documenting the agreement.

Parties who were not represented by a lawyer during the mediation will often seek independent legal advice at this stage to review the agreement before finalising it. Once the agreement is reviewed and accepted, it may be presented to the court for formalisation as a legally enforceable agreement.

When Can Mediation Be Used in a Family Law Matter?

Mediation can be used for a range of family law matters but is mostly used to negotiate parenting and property disputes.  Even if mediation does not result in a complete resolution for these matters, it often helps narrow down the issues in dispute, making court proceedings more focused and efficient.

Mediation is not only useful when there is a conflict, it can also be a good environment for separated co-parents to create parenting plans, make decisions about parenting, and agree on how to parent their children. Even parents with otherwise good co-parenting relationships may find mediation useful when dealing with some issues. For instance, co-parents who struggle to agree on one or two matters where each feel strongly (such as whether or not to raise their child in a particular faith) may benefit from the presence of a neutral third party guiding them to a compromise that works for both.

Separated parties can also use mediation to negotiate the division of assets and liabilities, including the family home, finances, investments, and superannuation. Mediation can be particularly helpful when a property settlement involves complex issues. For instance, if a main asset in the property pool is a family business that must continue to operate to retain its value, dividing this asset may require complex negotiation to enable a fair and equitable outcome. Mediation can also allow discussion of issues such as spousal support, especially when this forms part of a broader agreement about the division of the property pool.

The Benefits of Mediation

Mediation offers numerous benefits. Perhaps most importantly, parties in a mediation have greater control over the outcome compared to other options such as applying to the courts for a decision about their family dispute. This control can give the parties a sense of empowerment and ownership of the solution, as they have actively participated in crafting an agreement that works for their unique situation.

The collaborative nature of mediation can also help to reduce animosity and improve post-separation relationships. This is particularly important for co-parents, who will potentially need to continue to work cooperatively for many years. Because mediation prioritises the best interests of the children and promotes child-focused solutions, it is consistent with the approach of the courts to parenting disputes. Of course, even in family cases where no children are involved, most parties will benefit from participating in a system which is less adversarial and inflammatory than traditional litigation.

Mediation often leads to a quicker resolution compared to lengthy court processes, which can take months or even years. As a result, mediation is generally more cost-effective than litigating in court, as it typically requires fewer legal fees and court-related expenses. Mediation is also more flexible than litigation, as it allows the parties to decide which issues are important and need to be explored.

Finally, as mediation sessions are confidential, they generally foster open and honest communication between parties. For some parties, the confidential nature of this process is of the utmost importance, as the issues included in a court case are a matter of public record.

When Mediation Doesn’t Work or May Not Be Appropriate

While mediation is effective in many family law cases, it may not always be appropriate or successful in every situation. For instance, if there is a significant power imbalance between the parties, mediation may not provide a fair forum for negotiation. In particular, mediation is often not safe in situations involving domestic violence, intimidation, or threats. Similarly, in cases where urgent decisions are needed, such as child safety concerns, immediate court action may be necessary. In such cases, seeking legal protection should be the priority.

In addition, mediation requires both parties to be committed to the process and willing to compromise. If one or both parties are unwilling to negotiate in good faith, mediation may not be productive. Finally, in some highly complex financial or legal matters, mediation may not be the most suitable vehicle for resolution. Such cases may require the expertise of a family lawyer and, potentially, court intervention.

Preparing for Your Family Law Mediation

It is advisable for all parties to seek legal advice prior to mediation. Even in cases when lawyers will not be at the mediation, it is still wise for each party to consult with a family lawyer before mediation to understand their rights, responsibilities, and the potential legal outcomes.

Both parties should ensure that they collect all relevant documents, financial records, and information about the issues to be discussed. A solution is much more likely to be reached on the day if exact figures and facts can be provided.

There is also emotional and mental preparation required prior to a mediation. A successful mediation is more likely when the parties have prepared emotionally for the process, understanding that mediation may involve difficult discussions and compromises. Each party should identify their goals and priorities for mediation, including what outcomes they hope to achieve (the “best case” scenario) and the outcome that they can accept (the “worst case” scenario).

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.

Bad credit rating? What can you do?

A credit rating (also known as a credit score) can play a vital role in a person’s financial life. A good credit rating indicates responsible borrowing and timely repayments, while a bad credit rating suggests a history of late payments or loan defaults. The lower the credit score, the less favourable the terms and conditions for future loans and credit cards. However, it is important to know that there are actions that can be taken to increase a low score. In this article, we will explore what a credit rating is, the factors that impact it, the effect of bad credit, and the steps that can be taken to increase a low credit rating.

Credit Reporting Agencies

In Australia, credit reporting agencies collect and store credit information and assign each individual a score between 0 and 1,200 based on their credit history. The three credit reporting agencies are Equifax, Experian, and Illion. Regularly monitoring your credit report via one or more of these agencies will identify any negative entries so you can address them promptly.

Legal Protections

In Australia, the Privacy Act 1988 regulates credit reporting, and the National Consumer Credit Protection Act 2009 governs consumer credit. Under these laws, consumers have the right to access their credit reports for free once a year and dispute any incorrect or outdated information. Credit reporting agencies are required to investigate and correct any disputed entries within a specified timeframe.

Activities That Affect Credit Rating

A range of different activities can impact your credit rating. Late or missed payments, defaults, bankruptcies, court judgments, and multiple credit inquiries within a short period can all have adverse effects on a credit score. On the other hand, a history of responsible borrowing, timely repayments, and low credit utilisation can have a positive impact on a credit rating.

Effect of Bad Credit Rating

Having a bad credit rating can significantly affect a person’s financial options. It may lead to higher interest rates on loans and credit cards, limited access to credit, and difficulty in securing rental agreements. A poor redit rating can even affect job opportunities in certain industries where credit checks are standard practice.

Steps to Repair Bad Credit

Repairing a bad credit rating requires consistent effort and responsible financial behavior. Here are some steps that can be taken to improve a credit score:

Step 1: Obtain Credit Report

Every person, even those with no history of borrowing, should request a copy of their credit report every year. It is free to obtain a copy of a credit report every year from each of the three credit reporting agencies. You should review the report for any inaccuracies or outdated information. In particular, pay attention to any unexpected accounts or loans that might be evidence of identity theft.

Step 2: Dispute Inaccurate Information

Any errors or invalid inquiries on the credit report should be disputed with the relevant credit reporting agency. It may be necessary to provide supporting documentation, such as evidence to substantiate a claim that payments were made on time.

Step 3: Pay Off Outstanding Debts

A credit rating can be improved by reducing the number of outstanding debts a person has and bringing payments up to date. If minimum payments cannot be made on all debts, it can be helpful to contact the creditor and try to negotiate a payment plan. It is important to be patient, as improving a credit rating takes time and consistent effort.

Step 4: Limit Credit Applications

Avoid making multiple credit applications within a short period, as each application can generate a credit inquiry, potentially lowering a credit score.

Step 5: Build Positive Credit History

While too many credit enquiries can lower a rating, having too little credit history can also keep the credit score low. People aiming to increase their credit rating may wish to obtain a secured credit card or a small personal loan and make regular repayments to demonstrate responsible borrowing behaviour. However, it is equally important to keep the credit card balances low and try to use no more than 30% of the available credit limit, as high credit utilisation can negatively impact a credit rating.

Conclusion

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.

What Happens to a Family Business after a Couple Separates

Divorce is almost always a difficult and disruptive life event. For couples who own a family business, the stakes are particularly high, as the fate of the business often becomes a central point of contention during divorce proceedings.

In Australia, a family business is considered part of the asset pool of the relationship, regardless of whether it was established before or during the relationship. Navigating the complexities of separating business and personal interests after separation requires careful planning and help from the right professionals.

Death of a Business

It is realistic to acknowledge that not all family businesses survive the upheaval of divorce. Some businesses may struggle to weather the financial strain and operational disruptions caused by the separation, leading to their eventual closure or liquidation.

Others may be irreparably damaged by acrimony and conflict between the spouses, making it impossible to continue operating in any meaningful capacity. In such cases, the spouses may be forced to sell off the business assets and divide the proceeds as part of the property settlement.

When this happens, the realised value of the liquidated business (if there is any) is simply added to the spreadsheet that tracks the total property pool of the relationship. The separating parties then need to agree on what percentage split each person is going to receive from the property pool. If they cannot agree then the Federal Circuit and Family Court of Australia will decide for them. In making this decision, the Court will consider things such as the length of the relationship, the contributions of each party to acquiring and keeping the assets of the relationship, and each person’s future needs.

Dividing a Living Business

If the business is to continue to operate, then the first step is to determine its value as a going concern. This can be a complex process, especially for businesses with significant assets, intellectual property, or goodwill. Valuation methods vary depending on the nature of the business and may involve assessing factors such as revenue, profits, market trends, and industry benchmarks. In some cases, forensic accountants or business valuation experts may be enlisted to provide impartial assessments of the business’s worth.

Once the value of the business has been determined, the next step is to decide how it will be divided between the parties. This can be particularly challenging when both spouses are actively involved in the business or have made significant contributions to its success.

The Court has broad discretion to make orders for the division of property. For instance, one spouse may be ordered to buy out the other’s interest in the business, either through a lump-sum payment or a series of instalments over time. This option allows one spouse to retain ownership and control of the business while compensating the other for their share of its value.

Alternatively, it may order the sale of the business and the equitable distribution of the proceeds between the spouses taking into account the distribution of other assets of the relationship (such as the family home or superannuation accounts).

While selling the business may not be in the financial best interests of either party or the business itself, the Court will make this order if it is the only equitable way to ensure that the property pool is divided between the parties.

In most cases, the Court prefers there to be a clean and final separation of all marital assets after the breakdown of a relationship. However, in some cases, the best option is for the spouses to continue operating the business together post-separation, either as joint owners or through a partnership or corporate structure. While this arrangement can be fraught with challenges, particularly if the spouses have a contentious relationship, it may be the best option for preserving the value of the business and ensuring its ongoing viability.

In such cases, it is essential to establish clear guidelines and protocols for decision-making, conflict resolution, and the division of responsibilities to minimise friction and maximise cooperation.

Conclusion

Ultimately, the fate of a family business after a couple separates in Australia depends on a variety of factors, including the value of the business, the contributions of each spouse, and the willingness of the parties to cooperate and compromise. While the process can be fraught with challenges and uncertainties, seeking the guidance of experienced legal and financial professionals can help couples navigate the complexities of dividing assets and planning for the future.

By approaching the situation with pragmatism, transparency, and a commitment to fairness, couples can mitigate the impact of divorce on their business and lay the groundwork for a successful transition to the next chapter of their lives.

This is general information only and you should obtain professional advice relevant to your circumstances. 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.

Transferring Property Between Family Members – Key Considerations

Transferring property between family members is a common practice, often driven by a desire to facilitate inheritance, support loved ones, or streamline estate planning. While the intention behind such transfers is usually rooted in familial bonds, navigating the legal and financial aspects of the process requires a practical and pragmatic approach. This article explores key considerations when transferring property within families, and flags the legal, tax, and financial implications involved. The information is general only and we recommend obtaining advice from experienced professionals that is tailored to your needs and circumstances.

Understanding the Motivation

Successful property transfers within families require effective communication and an understanding of family dynamics. It is important to clearly express the intentions behind the property transfer and address any concerns or questions that may arise.

Before delving into the intricacies of property transfers, it is also important to understand the motivations driving such decisions. By identifying the primary motivation, individuals can tailor their approach to the specific needs and goals of the family.

Legal Implications

One of the first considerations when transferring property between family members is the legal aspect. The method of transfer – whether through a sale, inheritance, will or gift – impacts the legal obligations and documentation required for the transfer. Each option carries its own set of rules and regulations that must be adhered to for a seamless and legally valid transfer.

Sales

Selling property within the family involves a formal transaction, and the terms should be clearly outlined in a legal contract, including the purchase price for the property. A sale within the family is often for a lower than market price. In such cases, consideration needs to be given to the impact on stamp duty and other obligations, as taxes are usually required to be paid on the full market rate. It is often necessary to have the property appraised to determine its value in current market conditions.

When selling property, capital gains tax (CGT) may apply on the profit earned. However, exemptions or reduced rates may apply. Understanding these tax breaks and planning accordingly can result in substantial savings.

Inheritance

If the property transfer is part of an inheritance plan, the most essential step is to establish a clear and legally binding will. The absence of a will often leads to complications and disputes among heirs, with the outcome that property may not be transferred as the deceased would have wished. Working with a qualified estate lawyer can help ensure that the transfer aligns with the legal requirements and the intentions of the deceased.

Some taxes may apply when receiving property through a will. Consulting with a tax professional can help optimise the transfer to minimise tax burdens.

Gifts

Transferring property as a gift involves giving ownership without expecting anything in return. While this can be a generous gesture, it is critical that the giver is aware of any tax implications. In addition to considering transfer duty, the donor should consider any CGT liability. Consulting with a tax professional can help optimise the transfer to minimise tax burdens.

In addition, a gift of property may not always be sensible if the recipient cannot afford the holding costs. Before transferring property, assess the financial stability and responsibility of the recipient. If the transfer is intended to support a family member in need, consider whether they can handle associated costs such as rates, maintenance, and other ongoing expenses.

Documentation and Title Transfer

Proper documentation is essential for a smooth property transfer, even when the transfer is amongst family members. To ensure that the title is transferred correctly and that all legal requirements are met, it is recommended to work with a lawyer or conveyancer. The correct legal documents in the prescribed format will be required for the transfer and registration of the property to the new owners. These need to be lodged with the relevant state titling authority. A property professional can also advise on transfer duty, investigate whether any concessions apply, and complete the relevant paperwork.

Professional Guidance

Seeking professional guidance from lawyers, conveyancers, tax advisors, and financial planners, as relevant, can help you navigate complex legal and financial landscapes. Their expertise can ensure that the property transfer aligns with both familial and legal aspects, promoting a smooth transition.

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.

Top 7 Questions about Family Provision Claims in Queensland

When someone passes away, questions often arise about inheritance. In cases where a person believes that they have not been adequately provided for by a deceased family member (whether or not a Will was left), certain laws may enable them to make a family provision claim to help make the situation fairer.

This article discusses common questions people may have about contesting a Will in Queensland. The information is general only and we recommend obtaining legal advice tailored to your circumstances.

  1. Am I Eligible to Make a Family Provision Claim?

In Queensland, the Succession Act 1981 gives the court discretion to order provision from the estate of a deceased person on the application of an eligible spouse, child or dependant, if adequate provision has not been made from the estate for the person’s proper maintenance and support.

A spouse includes married, de facto and civil partners and a child includes biological children, adopted children and stepchildren. A dependant includes someone who was wholly or substantially maintained or supported by the deceased person at the time of their death and was a parent of the deceased, the parent of a surviving minor child of the deceased, or a person under the age of 18 years.

An experienced estate lawyer can assess your relationship with the deceased and the surrounding circumstances to help determine your eligibility to make a family provision claim.

  1. Are There Time Limits to Make a Family Provision Claim?

Yes, strict time limits apply. An applicant must give notice of their intention to make a family provision claim to the estate’s legal representative within six months of the deceased’s death, and the application must be made within nine months of the date of death.

It is essential to act promptly and seek legal guidance to ensure this deadline is met. Only in limited circumstances, might the court grant an extension of time, and an out-of-time application is at the court’s discretion and is not guaranteed.

  1. Can I Make a Family Provision Claim if there is no Will?

Yes. If someone dies without a valid Will in Australia, they are said to die intestate and the law in the relevant jurisdiction sets out how their assets will be distributed. Whether or not a family member will receive an inheritance under these laws depends on their relationship with the deceased, and the specific circumstances.

If a person dies intestate, an eligible person may be able to make a family provision claim if the proposed distribution under the intestacy laws does not adequately provide for their proper maintenance and support.

  1. Will I Have to go to Court for a Family Provision Claim?

Some family provision claims end up in court, however, many are resolved through negotiation or mediation. Mediation usually offers a less formal and more cost-effective way to reach an agreement. The executor of the Will has the power to negotiate and settle claims, however, in doing so, should be guided by a lawyer experienced in family provision claims.

If an agreement cannot be reached, court proceedings may be necessary.

  1. What Does a Court Consider When Determining a Family Provision Claim?

When deciding a family provision claim, the court considers a range of factors to determine whether adequate provision has been made for the applicant’s proper maintenance and support and whether they should be provided for, or further provided for, from the estate.

Each case is different and must be assessed on its specific circumstances. Typical factors that may be considered include:

  • The applicant’s circumstances – age, health and financial needs
  • The applicant’s character and relationship with the deceased
  • The size of the estate
  • The financial needs and resources of other beneficiaries or the strength of any competing claims
  • Any contributions the applicant made to the deceased’s welfare

The court aims to achieve a fair and equitable outcome for all parties involved.

  1. How Much Will It Cost to Make a Family Provision Claim?

The costs of making a family provision claim can vary depending on the circumstances, the complexity of the case and whether the matter proceeds to court. It is important to discuss fees and potential costs upfront with your lawyer. If the matter proceeds to litigation, the court has discretion regarding how costs will be awarded.

  1. How Long Will a Family Provision Claim Take?

The timeframe for resolving a claim can vary significantly. Many claims are resolved within a few months, especially if settled through negotiation or mediation. However, if court proceedings are required, the process can take longer. Seeking professional advice early from an experienced estate lawyer can help ensure the best possible outcome and potentially expedite the process.

Conclusion

This is general information only and you should obtain professional advice relevant to your circumstances. Family provision claims can be complex, and the families involved are usually also dealing with emotional and other challenges. Whether you are making or defending a family provision claim, it is important to consult an experienced lawyer specialising in estate law to discuss your specific circumstances and receive personalised advice.

If you or someone you know wants more information or needs help or advice, please call 07 32816644 or email mail@powerlegal.com.au.

First steps after separation – some practical considerations

The breakdown of a relationship, whether by choice or circumstance, can be complex and challenging. In Australia, the Family Law Act 1975 sets out the legal framework for divorce, the division of property and parenting arrangements after a relationship breaks down. An experienced family lawyer can provide valuable legal advice and guidance when it comes to navigating these laws.

Family law matters are not just legal problems, in addition to navigating the law and the emotional aftermath, addressing the practical side of separation can be equally important to transition into your new phase of life. There are a host of considerations, many of which will need immediate attention. Following are some typical practical matters that may need to be dealt with.

Living Arrangements

  • Accommodation and housing will naturally be a concern. You’ll need to decide who stays and who leaves the family home which might be influenced by employment needs, children’s schooling, and nearby family support.
  • If you are renting, decide who will stay in the current home, notify your landlord and have the rental agreement updated. If you have a mortgage, inform your bank of your separation and any decisions made regarding mortgage responsibilities.
  • If you are moving out, you will need to explore housing options that fit your budget and lifestyle, which can be particularly difficult in the current market. Ask friends and family for referrals and support.
  • If you are relocating, make sure you change your address with various organisations, and for added security, you may want to consider renting a post office box.

Children and Schooling

  • For families with children, their well-being and continuity in learning and development are paramount. Keep your children’s best interests in mind – try to put differences aside to work out arrangements that will cause them the least disruption and, where possible, foster a meaningful relationship with both parents.
  • If you can, establish a temporary agreement as a starting point, which can lead to a more formal arrangement later. Maintaining consistency is likely desirable in most cases. If possible, stick to your children’s current schooling and childcare arrangements to maintain stability in their lives.
  • Meet with school and childcare administrators to inform them about the separation and keep them notified of any changes so they are aware of the situation and can help. Schools often offer support and resources to help children cope with the change.
  • Coordinate with your ex-partner to work out a plan for childcare/school pickups, extracurricular activities, and parent-teacher meetings. Consistency and cooperation in these areas can significantly reduce stress for children.

Banking and Accounts

  • Contact your bank to discuss your mortgage, joint loans, savings accounts, credit cards, and every other aspect of your banking. You will likely want to open a separate savings account and close or put a hold on credit card facilities, lines of credit, etc. Major banks generally have online resources and checklists to help those who have separated to work through their banking needs.
  • Protect and help safeguard your privacy by updating passwords and login details for online banking accounts, email, social media platforms, etc.

Property and Record Keeping

  • Secure your personal documents and items. Ensure you have all necessary identification, financial records, and personal valuables in a safe place. Obtain originals or copies of important documents like passports, marriage certificates, birth certificates and insurance policies.
  • Ensure that your property (your home, other real estate, motor vehicles, boats, etc.) remains insured. Failing to retain insurance, should the unforeseen happen, can have devastating financial effects. Work out with your ex-partner who is paying for what and keep accurate records.
  • Prepare a list of assets and liabilities (and account balances as of the date of separation). Property, shares, investments, bank accounts, superannuation, mortgages, loans, and credit card accounts will all be relevant when it comes to finalising your property.
  • Document your agreed date of separation and keep a journal to record other significant events and timelines. This is important information when it comes to applying for a divorce and determining deadlines for filing court proceedings, if this becomes necessary later.

Support and Assistance

  • Contact the Department of Human Services to learn about child support and whether you are entitled to financial assistance.
  • Create a trusted support network and enlist help from friends and family as well as professional counselling or therapy, if needed. Family Relationships online – https://www.familyrelationships.gov.au/ provides various resources and information to help families and relationships.
  • Lean on your support network. Friends, family, support groups, and professional counselling can provide the emotional support needed during this challenging time. Remember, it’s okay to ask for help, and reaching out for professional guidance is a prudent way to navigate the complexities of separation.

Moving Forward

Don’t put off getting quality legal and financial advice from qualified professionals.

Consider making or updating your Will and other documents such as a power of attorney. You should also review your superannuation and life insurance policy, as relevant, as you may wish to make changes to the beneficiaries. Your lawyer can provide guidance and advice in these important estate planning areas.

Separation demands both emotional and practical resilience and working out some of the preliminary steps to take after a relationship breaks down can be difficult when you are emotionally charged. Fortunately, there are resources available to help you navigate these difficult times. We understand the sensitivity and intricacies inherent in family law matters – the legal and the practical issues – and our goal is to provide comprehensive support and guidance to all our clients.

This is general information only and you should obtain professional advice relevant to your circumstances. 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.

Australian Immigration – Understanding Bridging Visas

A bridging visa is a temporary visa that the Department of Home Affairs (DHA) might grant in certain circumstances to allow a non-Australian citizen to remain in Australia for a certain period of time. Understanding when and how to apply for bridging visas is essential, and seeking professional assistance can make the process smoother and more manageable. With the right guidance and adherence to visa regulations, navigating the complex Australian immigration landscape becomes a more achievable endeavour.

Why Apply for a Bridging Visa?

There are a number of different scenarios where you may need to apply for a bridging visa. For instance, you may need a bridging visa if your current substantive visa is about to expire, but you need to remain in the country for various reasons.

A bridging visa may also be granted if your circumstances change, and you need a temporary visa to maintain your lawful status while you address the changes. For instance, if you are on a student visa but wish to remain in Australia on a partner visa, you may need to apply for a bridging visa for the period of time between leaving your course and waiting to hear about the outcome of your application for a partner visa.

How to Apply for a Bridging Visa

Obtaining a bridging visa in Australia involves a specific application process. First, you must determine your eligibility for a bridging visa, and identify which bridging visa is right for your circumstances. This is typically done by consulting with the Department of Home Affairs or an immigration expert.

In most cases, you will also need to lodge a substantive visa application, which is the visa you want to hold once the bridging visa is granted. It is important that you complete your substantive application and attach all necessary documents, which may require you to obtain expert assistance. Once your substantive visa application is lodged, the department will assess it. If your current visa is due to expire, a bridging visa may be automatically granted to you, ensuring the continuity of your lawful status while the substantive visa application is processed.

Types of Bridging Visas

There are several types of bridging visas for different circumstances. The three most common bridging visas are A, B and C:

If your current visa is expiring and you are applying for a new type of visa, you may choose to apply for a Bridging Visa A (BVA). This will allow you to stay in Australia lawfully after your visa ceases and while your substantive visa application is being processed or finally determined. In addition, if your visa application is refused, you may have a right of appeal or review of the decision. If so, a BVA can allow you to remain in Australia until the appeal process is finalised.

In some circumstances, a BVA would have the same conditions attached to it as the visa held at the time of application. Therefore, a BVA may or may not have work rights.

You may choose to apply for a Bridging Visa B (BVB) if you are applying for a substantive visa but have a good reason to need to leave and return to Australia while waiting for your application to be processed. If you depart Australia with another type of bridging visa in effect, then that visa will cease, and you may not be able to re-enter Australia if and until the Department grants you a substantive visa.

A BVB has a defined travel period. You can leave Australia and re-enter on a BVB within this defined travel period. If you are in Australia when the travel period ends and you need to travel outside Australia again, you can apply for another BVB.

You may choose to apply for a Bridging Visa C (BVC) if you are in Australia and do not currently hold a substantive visa. This could occur if you lodged an application while holding a bridging visa, or you were unlawfully in Australia after your substantive visa expired. The BVC would allow you to remain in Australia lawfully while applying for a substantive visa to be assessed.

If you hold a BVC, you cannot travel outside of Australia and generally, this visa comes without work rights.

There are four additional bridging visas that are used in specific circumstances:

A Bridging Visa E (BVE) lets people stay lawfully in Australia while they make arrangements to leave the country, finalise their immigration matter or wait for an immigration decision. A BVE comes with very strict conditions, including reporting conditions. This visa also usually comes with no authorisation to work or study.

A Bridging Visa D (BVD) is granted when someone tried but was unable to apply for a substantive visa. For example, they did not pay the correct fee or filled out the wrong visa application form or an authorised officer is not available to interview them, but they will be able to do so within the next five working days.

A Bridging Visa R (BVR) is for people who are in immigration detention but their removal from Australia is not reasonably practicable. This allows them to be released from detention pending their removal.

A Bridging Visa F (BVF) is used exclusively for suspected victims of trafficking or slavery who do not hold a substantive visa.

Conclusion

Australian immigration laws provide for certain bridging visas to allow temporary stay extensions or appeals. The circumstances that may lead to the need to apply for a bridging visa can be complex and it is important to ensure the right type of bridging visa is sought. Seeking professional guidance from an experienced immigration lawyer can help visa applicants successfully navigate the regulations and process.

This information is general in nature only and you should obtain professional advice relevant to your circumstances. 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.

How do I Protect my Estate from a Family Provision Claim?

Estate disputes are surprisingly common in Australia. Laws across different jurisdictions allow eligible individuals to challenge a deceased’s Will if they believe they have not been adequately provided for. In such cases, a successful claim might result in the terms of your Will being adjusted in favour of the claimant. However, there are steps you can take to help protect your estate from a family provision claim so that your final wishes are respected.

What is a Family Provision Claim and Who Can Make One?

A family provision claim (or testator’s family maintenance claim) is a legal application made by an eligible person seeking a share, or larger share, of a deceased person’s estate. Essentially, the claimant argues that the deceased failed to make adequate provision in the Will for their proper maintenance and support.

The eligibility criteria to make a family provision claim varies across Australia, so it is important to consider the legislation relevant to your jurisdiction. Generally, those eligible to make a claim are close family members such as a spouse, de facto partner and biological or adopted children. Other individuals such as stepchildren, former spouses, and certain family members who were financially dependent on the deceased (in specified circumstances), may also be eligible to claim in some jurisdictions.

Reasons Estate Disputes Arise

To minimise potential claims against your estate, it is helpful to consider why some disputes arise in the first place.

Family dynamics play out in different ways, particularly when a loved one dies, and the emotional burden of the loss can complicate already difficult relationships. Conflict between family members, especially in blended families or when there is an estranged relationship, can lead to challenges and disputes over the deceased’s intentions.

Family provision claims can arise when individuals believe that the distribution of assets is fundamentally unfair. For example, a child may have provided significant care during a parent’s final years while other siblings conducted their lives with little interruption. The ‘carer’ may have incurred personal and financial expenses or missed opportunities due to these commitments, and the Will may not take account of this.

Some Wills are out of date and do not reflect changes in the deceased’s circumstances, such as marriage, divorce, or new family members. This can create confusion and disputes regarding the deceased’s wishes. Similarly, vague or ambiguous terms in a Will can cause disagreement or uncertainty among beneficiaries.

Steps to Help Minimise Family Provision Claims

Prepare an Effective Will

Possibly the most important safeguard against a family provision claim is to prepare an effective Will. A Will that clearly outlines your intentions for the distribution of your assets leaves little room for misinterpretation of your testamentary wishes. Your Will should be carefully drafted, taking account of your financial and personal circumstances, family dynamics and any potential sources of conflict.

Consider Potential Claimants

While you are technically free to distribute your assets as you wish, it is wise to acknowledge the potential claims of eligible individuals. Providing some level of provision, even if it is less than they might expect, could demonstrate that you considered their needs and could potentially deter them from making a claim.

Review your Will Regularly

As your life circumstances change, it is important to review and update your Will to reflect this. When you experience significant life events such as marriage, divorce, the birth of a child, or the acquisition of substantial assets, it is a good time to review your Will.

Check your Superannuation

Benefits held in your superannuation fund generally do not form part of your estate for distribution under your Will. Rather, the trustee of your super fund decides how to direct the funds, unless you have a current binding death benefit nomination in place. You should regularly check your superannuation details to ensure you have nominated your desired beneficiaries and completed a binding death benefit nomination. Getting financial advice on the tax implications for your proposed beneficiaries is also a good idea.

Check Property Ownership

How co-owners hold their respective interests in property is an important consideration in asset protection and estate planning. Holding property as joint tenants means the interests are held as a whole and cannot be separately apportioned. Joint tenancy is subject to the rules of survivorship, meaning that if a co-owner dies, the surviving co-owner/s is automatically entitled to the deceased’s share in the property. Conversely, property held as tenants in common can specify the individual shares held between each owner which need not be equal. Unlike a joint tenant, a tenant in common may transfer, sell or leave their share in the property to a beneficiary in a Will.

Trusts

A trust is a separate legal structure that holds your assets. There are different types of trusts used to achieve different outcomes and trusts can offer benefits such as preserving/protecting assets, providing for minor children or vulnerable individuals and tax planning. Because of the complicated legal, financial and tax implications of trusts, it is important to seek professional advice when setting one up.

Communicate with your Family

Open and honest communication with your family about your estate plan, where appropriate, can help manage expectations and potentially reduce the likelihood of future disputes. Explaining your decisions and reasoning can help your loved ones understand and accept your wishes.

Conclusion

Failing to address a potential family provision claim can leave your estate vulnerable to costly and time-consuming legal disputes. It may be impossible to guarantee that a family provision claim will not be made against your estate, but there are proactive steps you can take to minimise potential claims. Seeking professional advice tailored to your circumstances can help safeguard your legacy and ensure your final wishes are honoured.

This information is general only and we strongly recommend seeking assistance from a qualified professional when preparing your Will and planning your estate. 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.