Superannuation….. Who gets it when I die?

Posted on January 18th, 2019

Superannuation - who gets it when I die?It comes as a surprise to many people to learn that they do not own their superannuation and therefore cannot include their superannuation as an asset to be disposed of by Will. After the death of a member of a superannuation fund, the superannuation entitlement of the deceased person is paid at the discretion of the trustee of the superannuation fund of which the deceased person was a member unless that deceased person has filed with the trustee a Binding Death Benefit Nomination (BDBN). If the trust deed governing the superannuation fund provides for the filing of a BDBN and if a BDBN has been filed (and assuming it is correctly completed and executed then the trustee of the superannuation fund is bound to abide by that BDBN and pay the superannuation in accordance with it. Effectively the BDBN can be an extension of the Will in that it can bind the trustee to pay the superannuation in accordance with the wishes of the deceased person. It is advisable for a member of a superannuation fund to file a BDBN (if possible) however advice from an accountant should be obtained to ensure that the superannuation is disposed of in the most tax effective way and if not, that the member of the superannuation fund is aware of the consequences of his or her action. Read the rest of this entry »

Exceptions to the rule – Who’s listening?

Posted on January 17th, 2019

Exceptions to the rule - who's listening?S 7(1) of the Surveillance Devices Act 2007 (NSW) sets out a general prohibition to a person using a listening device to record a private conversation to which the person is a party. Section 7(3) of the Surveillance Devices Act sets out exceptions to the operation of s 7(1), so that the general prohibition does not apply on particular conditions.

In a recent case, a mother’s lawyers sought to have a recording admitted as evidence and relied on one of the exceptions.  They argued the mother was a principal party to a conversation and consented to the listening device recording the conversation because it was reasonably necessary for the protection of her lawful interests. The reason for the material was that it was evidence of family violence in circumstances where the father denied such family violence, and where family violence often occurs largely behind closed doors and in this particular instance, on an isolated property. Read the rest of this entry »

What a difference a (leap) year makes

Posted on January 16th, 2019

What a difference a (leap) year makesWe have all heard jokes about people born on 29 February in a leap year, claiming to be younger than they really are because technically they only have a birthday every 4 years. However the ACT Supreme Court has had to grapple with the implications of a leap year birthday in somewhat different circumstances.

The plaintiff in the proceedings was born on 29 February 2000. She was charged with committing criminal offences on 28 February 2018. Depending on whether the plaintiff was an adult or a child on the date of the offences, she would be dealt with either as an adult or in a Children’s Court.

A Magistrate in the Children’s Court had decided the plaintiff was an adult and that the case must be sent to the Magistrate’s Court (the equivalent of the NSW Local Court) where the plaintiff would be dealt with as an adult. The plaintiff appealed that decision to the Supreme Court. Read the rest of this entry »

Charity in Wills – Don’t waste the gift

Posted on January 15th, 2019

What executors need to knowWills are ambulatory. The circumstances existing on the death of the will-maker apply.  This poses difficulties since most people cannot help but write Wills with “today” in mind.

A recent case in the Supreme Court involved legal effort and expense when circumstances changed even in a situation when the will-maker had tried to accommodate the possibility of change. Read the rest of this entry »

My Health Record: Are your children at risk?

Posted on January 14th, 2019

My Health Record: Are your children at risk?

In 2012 the Australian Government commenced a digital health record system known as My Health Record.  In May 2017, the Government announced that the system would transition into an ‘opt-out’ basis, rather than ‘opt-in’ due to a lack of uptake.  This means that unless they opt out by 31 January 2019, every Australian (including children) now has a My Health Record. This includes your health information such as healthcare providers you have seen, treatments you have received, and medicines you have been prescribed. Read the rest of this entry »

Casual or Permanent: Characterising Employees

Posted on December 20th, 2018

Casual or Permanent: Characterising EmployeesThe Full Court of the Federal Court of Australia has recently emphasised the importance of properly characterising a casual employment relationship.

In WorkPac Pty Ltd v Skene [2018] FCAFC 131, Mr Skene was employed by WorkPac Pty Ltd (“WorkPac”) as a fly in fly out truck driver at a mine. Mr Skene’s employment was terminated by WorkPac. Mr Skene argued that he was entitled to payment in lieu of accrued annual leave entitlements in accordance with the Fair Work Act 2009 (“FWC”) and enterprise agreement.  WorkPac argued that Mr Skene was not entitled to payment of annual leave because section 86 of the FWA and the enterprise agreement excludes casual employees from the entitlement to receive annual leave.

Mr Skene’s employment contract stated that he was engaged as a “casual employee”, however the Full Court held that the term “casual employee” has a legal meaning and is to be determined according to objective factors. Read the rest of this entry »

Contested Wills… the Court procedure

Posted on December 4th, 2018

 When a person intends to contest a Will, after establishing eligibility, he or she must commence proceedings in the Supreme Court. The District Court has jurisdiction however the Supreme Court is the preferred venue. The FPA list (as it is called) in the Supreme Court is managed by His Honour Justice Hallen. When the Summons commencing proceedings is filed, it is necessary for the applicant to file an Affidavit in support of the claim. A  Court practice note sets out those matters which must be addressed in the Affidavit in support of the claim. Read the rest of this entry »

What executors need to know

Posted on November 20th, 2018

What executors need to knowBeing appointed as an executor can be a daunting experience. It is an important job which needs to be carried out at a difficult and emotional time.

Here are the basics of what you first need to do when someone has died and you are the executor appointed under the will:

  1. Make the funeral arrangements.
  2. Contact Centrelink or the Department of Veterans Affairs if they were in receipt of a pension.
  3. Ensure all items of dollar and sentimental value are adequately secured, including considering whether locks to buildings need to be changed if there is a risk to the security of those items.
  4. Ensure that insurance is maintained/taken out over property such as buildings and cars.
  5. Contact a solicitor to arrange an appointment to obtain advice in relation to the estate. You should note that there is not a “reading of the will” like is seen in movies. It may not be appropriate to have beneficiaries accompany you to the appointment and this should be discussed with the solicitor by phone prior to the appointment if you are considering it.
  6. Collect the following, as best you can, in anticipation of your appointment with a solicitor:
    • Details of the deceased’s assets, liabilities and superannuation membership.
    • Details of any beneficiaries of the estate.
    • Details of the deceased’s accountant or financial planner.
    • Details of any insurance policies relating to the deceased’s assets.
    • Details of any managing agent for investment properties.

Read the rest of this entry »

Issues with Expert Evidence

Posted on November 9th, 2018

Issues with Expert EvidenceMany cases before the courts involve expert reports – such as medical evidence in personal injury cases; accounting evidence in loss of profit cases; and valuation evidence in property cases. However as a 2016 Supreme Court case shows, unless the report demonstrates that the expert has relevant expertise; and expresses the opinion in a way that allows a court to understand how the opinion was reached, it may be rejected as evidence.

The particular case was a complex fire/arson dispute relating to a fire at a property at Mosman in Sydney. At the time of the fire, significant extensions/renovations were underway. The insurer declined the claim on the basis that the property owner had set, or colluded in setting, the fire and had made misrepresentations in relation to his insurance claim. Read the rest of this entry »

Loans to Children – Don’t be Vague

Posted on October 25th, 2018

Loans to Children – Don't be VagueWhen making loans to children, you will probably be nagged by conflicting emotions and truisms.  Should I document the loan for clarity? But they look so happy together and can use it more now than after I die. I worked hard to earn that money; what if there’s another GFC and I need to be repaid?   It’s all peace now, but should I prepare for war? Will a stitch in time save 9?

I cannot over emphasise the need for clarity and documentation when making loans to children.  If it is a loan, it needs to be documented and shown that there is an intention to create legal relations.  The loan document should record the amount(s) being advanced; the interest rate, if any; the term of the loan; and when it must be repaid. If it is a large enough amount and you want security, then you should insist on a registered mortgage.  Speak about the “elephant in the room” with your child’s partner/spouse, as awkward and difficult as that might be.  It is a loan to your child and it will need to be repaid. Read the rest of this entry »

Contested Will… when a claim can be made

Posted on October 15th, 2018

Contested Will… when a claim can be madeSection 58 of the Succession Act 2006 provides that an application to contest the Will of a deceased person must be made no later than 12 months after the date of death of a deceased person. However, the Court can on sufficient cause being shown order that an application be permitted to proceed notwithstanding that it is made more than 12 months after the date of death of the deceased person. There must be a very real reason why the application was not brought within time. Read the rest of this entry »

Can an employer discriminate based on criminal record?

Posted on October 10th, 2018

Can an employer discriminate based on criminal record?A recent case in the Australian Human Rights Commission (“AHRC”), BE v Suncorp Group Ltd [2018] AusHRC 121, has looked at the issue of discrimination against a prospective employee due to their criminal record.

The definition of ‘discrimination’ in section 3(1) of the Australian Human Rights Commission Act 1986 provides that discrimination “does not include any distinction, exclusion or preference in respect of a particular job that is based on the inherent requirements of the job”. Therefore, employers can choose not to employ a person because they have a criminal record if the criminal record is relevant to the inherent requirements of the job.In Qantas Airways v Christie [1998] HCA 18, Brennan J stated that “the question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs”. This means that after committing some offences, there may be some jobs that a person will not be eligible to perform by reason of their criminal record. For example, it would not be considered discrimination if an employer did not employ a person with a criminal record involving dishonesty offences if the employment involved tasks requiring honesty such as dealing with sensitive and confidential information; or dealing with money. Read the rest of this entry »

What Is the Value of a Lost Opportunity?

Posted on October 5th, 2018

What Is the Value of a Lost Opportunity?When is a ‘lost opportunity‘ really lost? And, when it is, what’s it worth?
These were the questions considered by the NSW Court of Appeal in the recent decision Mal Owen Consulting Pty Ltd v Ashcroft [2018] NSWCA 135.

In 2006, a solicitor, Ashcroft, was retained to recover a debt. Court proceedings were started but not actively pursued (the First Proceedings). This was accepted by Ashcroft as a breach of professional duty.

In 2010, new solicitors were appointed and fresh proceedings commenced which resulted in a judgment debt of $200,808.00 being awarded (the Second Proceedings). The subsequent appeal was unsuccessful and on 18 December 2013 the debtor entered bankruptcy. The plaintiff was not paid a dividend from the bankruptcy. Read the rest of this entry »

Unregistered Lease interest and the sale of a property

Posted on September 27th, 2018

Unregistered Lease interest and the sale of propertyWhen an owner sells a property that is subject to existing tenancies, it is always preferable to have the relevant leases to the tenants registered on title. This ensures that the lease automatically, by virtue of the Real Property Act (NSW) transfers to the purchaser on settlement and the tenant’s leasehold interest is preserved in the subject property.

However, it is not uncommon for a lease not to be registered on title. Usually, this arises in circumstances when the term of the lease (and any option to renew) does not exceed three (3) years. Read the rest of this entry »

Controversial changes in the air – Restructure of Federal Circuit Court and Family Court

Posted on September 21st, 2018

Controversial changes in the air – Restructure of Federal Circuit Court and Family Court In the week that Australia was changing prime ministers, significant changes were being introduced for consideration in relation to the proposed restructure of the Family Court of Australia (FCA) and the Federal Circuit Court of Australia (FCCA) –  the courts that resolve family and relationships disputes.

On 23 August 2018 the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 were introduced to the House of Representatives. Read the rest of this entry »

Insurance non-disclosure – The Importance of what an Insurer knows

Posted on September 12th, 2018

In 2017, the Supreme Court considered a dispute about whether an insurer had to pay out a claim in circumstances where it alleged its insured had failed to disclose relevant matters in its proposal.

The (very brief) facts were that the insured was a company that operated a petrol station. Its insurance policy did not cover any liability arising from gradual pollution. In June 2013, a sewer near the petrol station exploded and it was ultimately determined the explosion was caused by a sudden petrol leak. The company carried out both repairs and preventative work; and then claimed on its policy. The insurer declined cover. Read the rest of this entry »

Your Guide to Family and Domestic Violence Leave

Posted on August 30th, 2018

Your Guide to Family and Domestic Violence LeaveThe Fair Work Commission (“FWC”) has recently recognised the impact of family and domestic violence (“FDV”) on employees and employers in the work place. The FWC noted in its Four Yearly Review of Modern Awards (“the Review”) that employees who experience FDV often also experience disruption to workplace participation which can in turn cause financial difficulties.

As a result of the Review, changes came into effect on 1 August 2018 which apply to all modern awards and allow employees experiencing FDV to five days unpaid leave per annum (“FDV Leave”). Read the rest of this entry »

Things to tell your Family Law lawyer in the first consultation

Posted on August 29th, 2018

Top 8 things to tell your Family Law lawyer in the first consultationI understand that no one likes to air their dirty laundry to a lawyer they have just met. But, in the context of Family Law there are three important things to bear in mind:

  • You cannot change your past. It is important to be honest about the past if it is relevant to the outcome;
  • If I am going to provide you with sound legal advice, it is vitally important that I know about all the skeletons hidden away in your closet. This is especially true in Family Law, when every seemingly forgotten fact from your past could be important in determining the matter – or in a bad case, could be used by the other side to build a case against you; and
  • I take the duty of confidentiality that I owe you very seriously. Without your express consent I cannot reveal the information you to tell me.

Read the rest of this entry »

Charity does not always begin at home

Posted on August 24th, 2018

Charity does not always begin at homeLever v Attorney General of NSW [2018] NSWSC 838

A Will-maker left a gift of approximately $4.5m to her nephew and his wife to create a trust to “benefit women and children in the United Kingdom“.  The Will-maker was in the process of divorce at the time the Will was made and did not want her estate to go to her ex-husband or his children.  A Trust known as the “Ellie Trust” was established in an effort to comply with the Will and the purpose of the trust was to “preserve and protect the mental and physical health of women and children who have suffered domestic violence through the provision of refuges and safe accommodation in Liverpool”. Read the rest of this entry »

Can my step child contest my Will?

Posted on August 10th, 2018


Can my step child contest my will?When people talk about contesting a will, they are talking about family provision claims. Under the Succession Act, only certain classes of people are eligible to make a family provision claim. These are:

  1. a spouse;
  2. a de facto spouse;
  3. a child;
  4. a former spouse;
  5. a person who was
    1. wholly or partially dependant on the deceased at any particular time; and
    2. either a grandchild or a member of the same household as the deceased at any particular time; or
  6. a person in a close personal relationship with the deceased.

Read the rest of this entry »