Law Reform: Less Australia/New Zealand legal divide

Published by Law Society of New South Wales

The Australian and New Zealand governments have signed an agreement to make it easier to enforce certain judgments and sanctions between the two countries. It is also intended to streamline the process for resolving civil proceedings that cross the Tasman.

The direct result of this reform will be that parties in Australia or New Zealand with decisions not involving money that are captured by the trans-Tasman law reform will have more options for enforcement and a higher likelihood of success in enforcing when the defendant is in the other country or has property there.

The majority of civil proceedings will be able to be served in the other country without separately seeking permission from a local court, excluding such civil proceedings as dissolution of marriage, enforcement of maintenance obligations and enforcement of child support.

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Contesting Wills – The Time has Changed

Laws changes relating to contesting Wills.

Chapter 3 of the Succession Act came into effect on 1 March 2009 and replaces the Family Provisions Act. It has introduced changes in respect of Court proceedings involving a contesting Wills. Previously an eligible person, being a person who could contest the Will of a deceased person had a period of 18 months from the date of death in which to commence proceedings seeking orders for provision out of the Will of the deceased. However, in respect of the estates of persons dying on or after 1 March 2009, a claim by an eligible person must be made within 12 months of the date of death.

Who can contest a Will?

Section 57 of the Succession Act details the category of persons who can contest a Will and has added a category being “a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death”.

For example, an unpaid live-in carer may now be a person eligible to make a claim in the estate of a deceased person if adequate provision has not been made for the carer, in the Will. Of course, the fact a person is an “eligible person”: under the legislation does not mean they will automatically succeed in proceedings to contest the Will.

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Removal of same sex discrimation federally

The Federal Attorney General has announced that legislation to remove same-sex discrimination from a wide range of Commonwealth laws will be introduced in the Winter Sittings of Parliament. This reform follows the report of HREOC, Same-Sex: Same Entitlements, which focused on financial and work-related legislation.

Areas where discrimination will be removed include:

• Tax
• Superannuation
• Social security
• Health
• Aged care
• Veterans’ entitlements
• Workers’ compensation
• Employment entitlements
• Other areas of Commonwealth administration

The Government has begun introducing legislation in the Winter Sittings of Parliament. In areas such as social security, tax and veterans’ affairs, the reforms are expected to be phased in - to allow time for couples to adjust their finances, and for administrative arrangements to be implemented.

All of the changes are expected to be implemented by mid-2009.

If you have any queries relating to Family or Relationships law please do not hesitate to contact any of our Family and Relationships Law Team at Mullane and Lindsay: Mark Sullivan, Vivien Carty, Kristy Davis and Ashleigh John. Kristy Davis is present at our Tea Gardens office on Wednesday afternoons by appointment. (Tel: 4928 7300).

Fixtures from sale of a property

Source: Law Society of New South Wales 

What can I take from home? 

All ‘fixtures’ are included in the sale of a property without having to be mentioned specifically.

A fixture is something attached to the land or building that cannot be either simply lifted up and taken away, or unscrewed and taken away without doing any damage. For example, most electric stoves are wired in, so they are fixtures, but most refrigerators are plugged in, so they are not fixtures. 

For both buyer and seller, the safest course is to ask your solicitor to specifically include or exclude in the contract any items about which there can be room for doubt.

COMPULSORILY ACQUIRED LAND Claiming loss of profits

Claims for compensation are often made not only by landowners but also by businesses which operate on acquired land.

Many state authorities have the power to compulsorily acquire land for public purposes. The law ensures that compensation is paid for the market value of the acquired land and for ‘disturbance’ to the dispossessed owner.

An ‘owner’, for the purposes of the law, means any person who has an “interest in the land“, which would include, in most cases, any business operating from the land with a lease or similar arrangement. Some public works may also have a short-term impact on a business’s profits.

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How to leave a legacy for your pet

Trouble was the name of a cat which had its legacy of US$12 million cut back to US$2 million after a court case by unhappy human dependants. Your pet may not benefit by as much, but to ensure its future wellbeing, carefully prepare the legal groundwork.

Pets cannot inherit from a will directly, since they are classified legally as property and have no capacity to hold money or property themselves.

There are several options. A simple clause in a will leaving your pet and a sufficient gift of money to a carer you nominate, while not binding, will enable the carer to use the legacy to care for your pet. Talk to the person first to see if they are willing.

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The Problem with Homemade Wills

Sourced: Law Society of New South Wales

When the judge decides

A recent case was a clear example of a will prepared without legal advice failing to express the deceased’s intentions.

The courts had to interpret a homemade will for an estate with a gross value of about $3.6 million. The deceased had died in 2006, aged 83. He had seven children, then aged between 34 and 57.

He had made at least 13 wills between 1987 and 2004, the last three in 1999, 2002 and 2004. The will of 2004 was  typed by a business centre which offered word processing, typing and secretarial services. The document was signed in the presence of people employed in the business centre, who also witnessed it.

In February 2006, the man had again attended the business centre to have some handwritten changes he had made to the 2004 will incorporated into a new document. This new will, typed in February 2006, was said to be his last will and testament. Read the rest of this entry »