Help! I’m concerned that my loved one has a lack of Testamentary Capacity – what can I do? Are you concerned your loved one suffered doesn’t have the capacity to make a valid will? Read on to find out what is necessary to challenge the Will. With dementia and cognitive impairments prevalent in Australia, it is imperative to understand whether your loved one had testamentary capacity at the time of making their Will to ensure that they have not been taken advantage of leading to the estate becoming unnecessarily depleted. WHAT IS...
Missing Beneficiaries and Benjamin Orders Everything you need to know about locating missing beneficiaries and finalising the distribution of the Estate. As an executor your role is three-fold: a) reduce the assets of the Estate into possession; b) pay the debts of the Estate; c) distribute the estate to those beneficially entitled under the Will. This can be straightforward, however, issues may arise where a beneficiary cannot be located and their portion of the estate cannot be distributed. So what do you do? Read on to find out how...
I’ve been left out of the Will – what do I do now? Everything you need to know about making a family provision claim in NSW. Everyone has the testamentary freedom to decide how and to who to leave their estate to upon their death. However, where a person dies and leaves a family member out of their Will or leaves them a smaller portion of the estate, that family member may contest the Will and seek a family provision order from the Supreme Court of NSW. Read on to find out what to do if you have been left out of a Will. What is a...
At times, the responsibility of being an executor can feel like an almost impossible and overwhelming task. It’s hard enough discovering all the assets of the estate to realise them for the benefit of the beneficiaries, but what do you do if there isn’t enough money in the estate to cover the liabilities? Read on to find out the rules governing insolvent estates and then contact Streeterlaw (estates@streeterlaw.com.au) to guide you on your journey. It is helpful to know that as an executor, you have a fiduciary...
Being appointed an Executor of a loved one’s estate is an incredibly important, yet at times, difficult task. This task is made even more complicated where co-executors cannot agree, an executor has renounced probate, or an executor has failed to effectively administer the estate. If co-executors are at a stalemate, what do you do when you can no longer administer the estate? Appointing an independent administrator may be the best course of action. Call Streeterlaw now to discuss your options further. An executor has a legal...
In an increasingly connected world where keeping up to date with the happenings of family and friends is a few clicks away, social media is a necessity in our day to day lives. But what happens to your loved one’s social media accounts when they pass? Read on to find out more. Deceased Estates and Social Media Each person’s social media is unique and individual to them. Following the loss of a loved one, these accounts are understandably unique and sentimental to you. The process required to either preserve or close these accounts will...
5 Things I Hate About Not Having A Will Senior Solicitor at Streeterlaw, Jamal Bakalian, provides an exclusive in-depth step by step guide to 5 specific things that could go wrong if you or a loved one passes away unexpectedly without a Will in place. There are various things that could go wrong if you fail to leave a will clearly identifying the ways in which you would like your Estate distributed. Such a situation is more common than you may realise. Looking at it from different perspectives, here things that can go awfully wrong if a...
Things don’t always go as planned in life. Whether you’re looking for some certainty in the way decisions will be made for you in the future or are just taking some proactive steps to manage your estate, it is important that you are informed about the different estate planning instruments to give effect to your wishes. Solicitor Sara Afaghi has written an article for you that focuses on the Power of Attorney as an estate planning instrument. 1. What type of Power of Attorney do I need? A Power of Attorney instrument is a document that...
Sadly, it is a fact of life that each one of us will experience the loss of a loved one at some point. Solicitor Tamara Stevanovic provides 8 helpful tips to assist and give peace of mind to those of you who have been appointed as an executor of your loved one’s Will. The role of being appointed as an executor can be both complex, time consuming and emotionally draining, however it doesn’t have to be. Streeterlaw Estate experts can assist you through this process and help you navigate your way as you give effect to your loved one’s...
Sadly, it is a fact of life that each one of us will experience the loss of a loved one at some point. Solicitor Tamara Stevanovic provides 8 helpful tips to assist and give peace of mind to those of you who have been appointed as an executor of your loved one’s Will. The role of being appointed as an executor can be both complex, time consuming and emotionally draining, however it doesn’t have to be. Streeterlaw Estate experts can assist you through this process and help you navigate your way as you give effect to your loved one’s...
It is a truth universally acknowledged that buying and selling property is one of the life’s most stressful transactions. Everyone’s goal is to finalise the transaction with as little difficulty as possible – but what do you do when things go wrong? Senior Solicitor Jamal Bakalian talks us through 5 key warning signs that your conveyance is not progressing as it should, and what measures your Solicitor can put in place to bring those issues to a crashing halt and secure your property. Read on to find out more. Your mortgagee is...
Stories of feuding trustees, beneficiaries and appointors are all too common and sadly, may prevent beneficiaries from receiving the benefit of the Trust. Although such a loss would understandably be the cause of much anxiety for beneficiaries, the good news is that this need not be the case. Helpfully, the decision in Re Bowmil Nominees Pty Ltd [2004] NSWSC 161 (“Bowmil Nominees”) offers beneficiaries a clear path to ensure that the benefits of a Trust can be received even in circumstances where there is conflict. In the case of Bowmil...
When we think of family provisions claims that are made against a deceased person’s estate, we often think of the sister who was left out of the will, or the estranged but now returned prodigal son…we rarely consider friends who are not blood-relations. However, the case of Rakovich v Marszalek [2020] NSWSC 589 is an important precedent where it was recently decided that a friend who was cared for by the deceased like family, was successfully granted a provision from the deceased’s estate. Background Turning back time for a moment, the...
Are you concerned that your assets will be drained by bickering family members during the administration of your estate? Are you currently trying to administer an estate but are being held back by an uncooperative coexecutor? If so, you may wish to consider appointing an independent executor to ensure the job gets done, before litigation costs eat away the assets of the estate. Typically, when making a will, an executor will be a spouse, child, or other family member. The choice of a loved one may make sense, given that you can be...
A recent decision of the Supreme Court of New South Wales released on 23 April 2020, Deligiannidou v Sundarjee [2020] NSW SC437, provides us all with a timely reminder that more than ever, we need to be hypervigilant about the clauses in our Contracts when buying or selling property. Due to the increased use of technology amid the COVID-19 pandemic, purchasers are at their most vulnerable when buying property. Read on to find out how one purchaser was royally duped during the conveyancing process earlier this year. The Facts of the...
It is often said that “time is of the essence”. In the case of Choras v Farmakidis [2020] NSWSC 367, Mr Choras learnt just how true that expression is in the Family Provision jurisdiction of the Supreme Court of New South Wales' In New South Wales, a Family Provision claim must be made within 12 months of the death of a testator (will maker). While this time can occasionally be extended, granting this extension is a matter for the Court’s discretion and the Plaintiff (the person bringing the claim) must have exceptional reasons as...
Santa’s not the only thing coming to town this December… From 1 December 2019, major changes to conveyancing legislation[1] will affect all parties involved in the purchase of off-the-plan properties. Back in 2015 the Australian government introduced some safeguards to the buying and building of off-the-plan properties in response to concerns from the community about the protection of purchasers who were buying these properties. By November 2018, the government approved the Conveyancing Legislation (Amendment) Act 2019 to make way...
Appointing an Attorney under a Power of Attorney or Enduring Power of Attorney, may be among one of the most important decisions of your life. It is important to remember that the person you choose has to agree to take on the role of your Attorney. A Power of Attorney is also commonly referred to as a POA, and an Enduring Power of Attorney is often referred to as an EPOA. At Streeterlaw, we can provide you with the following helpful tips on how to carefully choose the right person for this incredibly important job. Now, take this...
The Guardianship Division of NSW Civil and Administrative Tribunal (NCAT) serves an important role. These 11 points will help prepare you. There are things you need to DO and other things you should NOT do. 1. Read the hearing notice The Tribunal sits most often at 2a Rowntree Street, Balmain. However, the Guardianship Tribunal may also travel and hold temporary sitting rooms in hotels or conference rooms around New South Wales depending on the needs and location of the person who is the subject of the Application. 2. Do not forget...
The Guardianship Division of NSW Civil and Administrative Tribunal (NCAT) is a specialised dispute resolution forum with jurisdiction narrowly defined by legislation. While its jurisdiction may be limited, the orders it makes can be far reaching and have significant impact. The Guardianship Division exercises concurrent jurisdiction with the protective division of the Supreme Court in respect of applications concerning: Review, operation and effect of Powers of Attorney (under Power of Attorneys Act 2003). Applications for...
Domenico Taverniti was a man who cared deeply for his family. He had some strong views about marriage and culture also, and so, for a while he was estranged from his son Enzo, because Enzo had married an Australian girl called Leonie. For this reason, Enzo was considered to be the black sheep of the family. However, the drama continued when, in January 2003, Enzo separated from his Australian wife, Leonie as he had left her to be with another woman. Domenico was beside himself and told Enzo that if he did not return to his wife, he would...
One big question that needs to be asked before buying a property with another person is how you’ll be recorded on the title. There are two different types of ownership and both have different effects on your rights and entitlement. The two different ways in which you can own property are joint tenancy or tenants in common. Both types of ownership have quite different effects on the rights and entitlements of each of the owners, commonly referred to as the registered proprietors of the property in question. Tenants in Common Parties...
A “blended family” is a family where one or both of the parties to the relationship have children from a prior marriage or relationship. Unlike a Will for a family in which the children are children of both parties, in a blended family, one spouse leaving all the assets to the other spouse after their passing may mean that the surviving spouse can change their will to exclude the children of the predeceased spouse at a later time. There are a number of estate planning tools or considerations you could implement to protect your...
Don’t assume statutory warranties will automatically result in recovering money for Building Defect rectification Public confidence in Strata Development in Australia, is on a slippery slope and at an all-time low. Streeterlaw warns Lot Owners, Strata Committees and Strata Managing Agents that recovering money for Building Defects is not at all straight forward as it requires strategic planning, complimented with an understanding of competing priorities as well as an understanding of dispute resolution options. A common Strata Horror...
Have you entered into a loan agreement that is not being fulfilled? Do you have invoices that remain unpaid by your clients? Have you paid for services you haven’t received? Do you own property that has not been returned? If you’ve answered yes to any of the above, you may wish to commence proceedings to recover your money in the Local Court of NSW. Commencing proceedings can be daunting, so it is helpful to understand what sort of matters you can commence in the Local Court, and what you can expect will occur in the proceedings. What...
The sale and purchase of any property often represents a milestone in a person’s life. As such, we know how important it is to make sure all of the finer details in a conveyancing contract are correct and agreed upon by both parties. Occasionally, a contract’s wording can be at odds with the intention of the buyer and seller and this may require rectification by an experienced contract lawyer. Rectification is a legal remedy that can correct a written contract to reflect the terms that the parties originally intended to be bound by. The...
A new rate of Capital Gains Tax, introduced on 1 July, is having a major impact on most Sydney-based real estate vendors. Prior to 1 July 2017, a vendor who was an Australian resident and selling real estate valued at over $2 million, was required to obtain a Clearance Certificate from the Australian Taxation Office to avoid the purchaser withholding 10 per cent of the purchase price (the Capital Gains Withholding Tax). If the vendor was a foreign resident, or did not provide a Clearance Certificate, the purchaser had to pay the amount...
The division of a couple’s assets by the Family Court is not simply a case of making a mathematical assessment of their relative financial contributions. The Court’s objective is to try and deliver an outcome that is just and equitable to both parties, so this is not necessarily a 50 per cent split. While each case is decided on its own circumstances, there is a common approach applied by the Court in working out who gets what. The Court’s approach is broken down into the following steps: Defining the “property pool” The...
The NSW Land Property Information (LPI) now requires lawyers conducting conveyancing to verify the identity of the individuals or companies they represent, to ensure they have the authority to buy or sell land. (The new LPI standard appears in the new Conveyancing Rules, which are contained in section 12E of the Real Property Act 1900.) The new rules have been initiated to stamp out the potential fraud of purchasers who live outside Australia, where previously, a Skype interview (and the sighting of identity documents that were flashed in...
The issue of estate planning and Family Law are closely connected and it is imperative that people receive advice regarding their rights and obligations to their spouses before writing out their will (entering into succession planning arrangements). There is a risk that certain transactions may be overturned in court if it can be proved they were designed to defeat an existing or anticipated order in Family Law proceedings. Case Study: Tabussi (As Executor of the Estate of the late Mr Tabussi Senior (Deceased) & Ors [2015] FCWA 108 (8...
If and when the time comes that you are unable to communicate or manage your own affairs, there are many decisions to be made by those who care for you. To make things easier for them and to ensure your wishes are known, you can put in place ahead of time a legal instrument, which sets out how you want your financial affairs, daily needs and health care decisions managed. There are several choices of legal instrument available, each with a different purpose. These include an Enduring Power of Attorney, the appointment of an Enduring...
The Supreme Court of NSW delivered a significant decision in April 2015 regarding the ability of financial managers of protected estates to obtain remuneration out of the estate, in addition to the costs involved in applying for the remuneration. The case (Application of Martin Fowler [2015] NSWSC 466) appears to be the first to follow the decision in Ability One Financial Management Pty Ltd v. JB by his tutor [2014] NSWSC 245 and the subsequent guidelines of the NSW Trustee and Guardian that require private managers to apply to the...
I’d like to share some information and insights I have garnered from a book I recently read called Being Mortal – Illness, medicine and what matters in the end. Written by American surgeon and public health researcher Professor Atul Gawande, it provides an overview of what it is like to age in today’s western society. It really is a “must-read” self-help book as most of us will face the challenges and questions dealt with by the professor. I loved Professor Gawande’s previous book A Checklist Manifesto, which is the story of his...
BOOK REVIEW The book, Being Mortal – illness, medicine and what matters in the end, has some insightful answers to planning for the best possible outcome when your health declines. Written by Professor Atul Gawande, an American surgeon, author and public health researcher based at Harvard University, this excellent book is an overview of the modern experience of mortality and what it is like to age in today’s society. Historically, Professor Gawande observes that a person’s journey from health to death is very short but nowadays,...
On 1 January 2014, the Consumer, Trader and Tenancy Tribunal (CTTT) amalgamated with around 22 tribunals to form the often described “super” tribunal called the NSW Civil and Administrative Tribunal (NCAT). NCAT deals with a broad range of matters, from tenancy issues and building works, to decisions on guardianship and the administrative review of government decisions. NCAT aims to have proceedings that lack the formality of a court and its technicalities and legal forms. The Acting Attorney General and Justice Minister, the Hon....
Beneficiaries of wills and estates, where probate already has been ordered, are sometimes faced with a conundrum of how to deal with an Executor who is not doing the job properly. In such circumstances it may be possible for the beneficiaries (as plaintiffs) to legally seek the removal of the Executor (as defendant) by motion/summons if the circumstances warrant it. Any application to the Court to remove an executor will need to consider the “welfare of the beneficiaries and of the estate”. The Court appears to have a large amount of...
Homemade documents, such as do-it-yourself will kits or handwritten notes, are often inadequate in clearly stipulating what you wish to happen to your assets after you die. A properly laid out and executed will can avoid unintended consequences, including legal delays, disputes and costs. To ensure that your will is legally valid, it’s important that the following factors are included: it is in writing; it is signed by the person making the will (‘the Testator’); the signature is made by the Testator in the presence of at...
There are a few things you should keep in mind when you are looking to buy your first home or when you are planning to invest in a new property or even when you intend to move house. Here are the top 10 tips that Streeterlaw believes will assist you to make wise purchasing decisions: Establish a budget. Prior to deciding upon which property to purchase, it is essential that you determine your budget. This means carefully assessing your income and expenditure in order to establish just how much you can afford to put toward your new...
A case involving a farmer and his daughter and son-in-law (Milling v Hardie [26 May 2014] NSWCA 163) is a reminder of the need to put property living arrangements, even between family members, in writing. Mr Milling is a farmer who lives in one of several rural properties he owns in central west NSW. In 1992, Mr Milling invited his daughter Mrs Hardie and her husband to move into a homestead on one of the nearby properties. Over the following years, the Hardies carried out various improvements to the homestead and its grounds. They...
Are you going through a property settlement with your former partner? If you or your partner has a Testamentary Trust, you may be keen to know how the Family Court will treat your interests in this kind of trust. (A Testamentary Trust is one that is created under a will, which gives trustees greater control over the distribution of assets to beneficiaries). While the tendency of the Court is to view a Testamentary Trust as a financial resource, the Court can consider a Testamentary Trust to be part of the couple’s combined assets, as...
A Guardianship case in the Supreme Court last October found that a financial manager could be replaced for reasons other than incompetence or impropriety if it was in the best interests of the protected person. In M v M [2013] 1495, the Supreme Court decision saw the NSW Trustee being replaced as financial manager by the sister of the protected person’s family. Another case in 1993 (Holt v the Protective Commissioner) found that a financial manager can be replaced due to incompetence or impropriety. It also indicated that the financial...
Has a family member recently passed away without leaving anything from their estate for you? If so, you may be entitled to make a family provision claim under the Succession Act. A family provision claim is an application for an order for provision to be made out of an estate for a person’s maintenance, education or advancement in life. If you want to bring such a claim, there are some important factors that you must be aware of. Firstly, you must bring the claim within 12 months of the person passing away. Secondly, you must...
In the unfortunate event that you lose the ability to manage your own financial affairs, it is common for a trusted relative, friend or solicitor to take over the management of your affairs. But it is important that you elect a Power of Attorney while you still have the mental capacity to understand what you are signing. Following a review of the Powers of Attorney Act in September 2013, two new forms have been created to replace the single form that was previously used to create both General and Enduring Powers of Attorney. So we thought it...
In a very interesting case before the Supreme Court of NSW on 13 September 2013, His Honour Justice White considered an application to “suspend” the decision-making powers of a Guardian appointed under a Deed of Enduring Guardianship. The case concerned an application for an injunction made initially without the presence of the other party by the estranged husband of the subject person. Both the husband (plaintiff) and the wife were quite elderly. The husband sought to prevent (injunct) the guardian (a friend of the wife)...
While preparing a will is seen as essential for anyone who owns property or possessions and has dependents, details and security of a person’s online accounts and profiles is often overlooked. Although the Internet is a relatively recent phenomenon, it is already an integral part of the lives of a large percentage of Australians. Most people have an email account and there are an increasing number of Australians with social media accounts and online identities. This presence can take the form of: Email accounts Online banking ...
Property Final Inspection before Settlement If you have ever purchased a property, you would have faced that nervous day three days prior to settlement, where you were invited to inspect the property. But what is it that you looked for when you did your inspection? And did you have any regrets days or weeks later, realising that you could have resolved a problem you are facing with the property if you’d been more thorough in that final inspection? Under the provisions of the standard contract for the sale of property, the purchaser is...
When someone you care about dies, the circumstances of their death and the ensuing funeral arrangements can be too much to bear for some. And while this is a somewhat unsavoury topic, it is something everyone should know a little about, so that when these circumstances arise, you know what to do if you are the next of kin. After a person dies, a doctor must issue a medical certificate detailing the cause of death. If the person dies at home, an ambulance should be called. The ambulance crew can decide if the police need to be...
A recent case in the NSW Supreme Court has helped define who can undertake the role of financial manager of a person’s assets when a person is incapacitated. It also helped define what constitutes a conflict of interest in the circumstances and what type of remuneration is deemed acceptable in the court’s eyes. The case involved a young child – EKR – who was in a serious road accident on 27 March 1999. She sued for compensation and damages for injuries that she suffered and was awarded a sum in excess of $2 million. The...
Do you have a friend or relative that suffers from a physical or mental disability and currently has a matter in the Family Court? Are they having difficulty understanding and communicating? If so, then they may lack the capacity to manage their own affairs and may need a case guardian to assist them in the Family Court. The general legal test for capacity is described by Justice Powell in PY v RJS & Others [1982] NSWLR 700 as follows: “A person is not shown to be incapable of managing his or her own affairs unless, at the least,...
In October 2011, major changes were made to the Home Building Act 1989, which has adversely impacted new residential homeowners. Instead of having a blanket seven years to claim against home owners’ warranty insurance for building defects, home owners are now limited to just two years to discover non-structural defects and six years to uncover structural defects. Also, claims have to be made within six months of the problem being discovered. From February 1, 2012, strata schemes were also affected by the NSW Government’s amendments...
Owners of strata apartments or other strata property need to be aware that strata schemes and owners’ corporations are not automatically responsible for rectifying defects to common property. It is important for property owners and investors to investigate the detail of their strata plan to find out who will have to pay for damage to common property, as The Strata Schemes Management Act 1996 does not clearly identify the responsibilities of the Owners Corporation. Deciding who is responsible for fixing the defects depends on a number...
A proposed new Super Tribunal will take over the role of the current Guardianship Tribunal, along with 23 other NSW tribunals in 14 months time. From January 1, 2014, the Guardianship Tribunal, the Consumer Trader & Tenancy Tribunal and the Administrative Decisions Tribunal will all become part of a new “Super Tribunal” called the NSW Civil & Administrative Tribunal (NCAT). It is expected that the current members of these tribunals will be “carried over” into the new jurisdiction. The NSW Government is aiming...
When couples with children separate it can mean additional complexity over custody and shared parental responsibilities. Yet what if the child dies? Who decides who can arrange the funeral. A NSW Supreme Court judgment resolved a very difficult situation in which the parents of a deceased 14-month-old baby were arguing about the organisation of the funeral and the burial site for their little child. Sadly, each year the Family Law Courts see a number of very serious disputes about the care of children. In this case, the child died as the...
A Power of Attorney is a legal document enabling someone to act on another person’s behalf. It can be very useful but it is essential that the person who grants this ‘power’ have the ‘capacity’ to do so. In July 2010, a case in the Supreme Court of NSW highlighted that a Power of Attorney can be considered void - even if they have been used over several years. The case of Szozda v Szozda [2010] NSWSC 804 was decided by Justice Barrett. It has widely been reported as a significant “clarification” to the test of whether or not...
After 30 years of marriage what would you expect from your husband's estate? When your husband has a $15 million estate probably quite a bit. In this fascinating case a widow turned to the courts for help in receiving a greater share of the estate. The case was reported in the Sydney Morning Herald on Monday 29 November 2010. This followed a decision of Associate Justice Macready on 25 November 2010 in determining a Family Provisions claim by the Wife against her late Husband's Estate. (Hoolahan v Scali [2010] NSWSC 1349) It is helpful to...
Can a strata Body Corporate recover all of the legal costs it incurs when chasing outstanding strata levies? It is quite common for civil legal action to leave successful plaintiffs out-of-pocket in respect to their legal expenses, even if they obtain an order for the defendant to pay their legal costs. An order for costs does not ordinarily cover the full cost of providing the legal service to the plaintiff in the proceedings. The usual costs order is on a “party/party” basis, which translates into approximately 60-70 per cent of...
Does a Deed of Enduring Guardianship allow a hospital to stop medical treatment even if it is keeping a patient alive? The case of Hunter and New England Area Health Service v A [2009] NSWSC 761 in 2009 raised this very important question. A Deed of Enduring Guardianship is often seen as a Living Will. It is similar in many ways to the more common Enduring Power of Attorney. A Deed of Enduring Guardianship, Living Will and Enduring Power of Attorney are legal documents with the intention of making clear your intentions in situations where...
Grandmother's bank accounts being raided “I am concerned my grandmother is being taken advantage of! My cousin has moved into her house and is accessing her bank accounts what can I do?” Comment from Mark Streeter - Sydney Family Law Lawyer The elderly are one section of our society that have a particular vulnerability to financial exploitation. An elderly person can put into place legal documents such as an Enduring Power of Attorney and a Deed of Enduring Guardianship that will provide for the formal appointment of trusted...
Two court cases follow breakdown of a business relationship The first court decision over who was responsible and who was to pay costs was overwritten by the second court decision. Facts behind BATTERHAM v MAKEIG [2010] NSWCA86 (22 April 2010) Makeig, a property development consultant, entered into an agreement with Mr Batterham to provide project management and consultancy advice to assist with rezoning of real estate in the village of Kitchener near Cessnock. The intention was to prepare the land for development and sell it on to a...
High Court asked to rule if a contract existed and was binding Masters versus Cameron [1954] HCA 72 is a classic legal case that is still the leading authority on whether there is a binding contract or not. Even though this law case is over 50 years old the legal precedent it set is still used in Australian court cases today. The facts This legal dispute arose in respect of a sale of land from the plaintiff (in the original trial) to the defendant. On 6 December 1951 Mr & Mrs Masters (the defendants and proposed...
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