When Lightning Strikes Twice: Death and Separation
David Gawthorne is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law
Two events that many resist planning for are their death and their separation from their spouse or de facto partner. Even though the probability of death is greater than that of separation, younger people often treat both as mere possibilities. It is therefore common for death and separation to be dealt with only when they loom and this means that both aspects are generally not considered at the same time. Yet, it should come as no surprise that death and separation sometimes strike at around the same time.
Someone negotiating a property settlement with their former partner could die with a last Will that provides for their former partner to receive all of their estate. Perhaps they do not die, but become ill or disabled to the extent of lacking capacity to manage their own financial affairs. An existing enduring power of attorney and appointment of enduring guardian may then result in their former partner having control of their financial affairs and living arrangements etc. Wills, powers of attorney and guardianship appointments therefore need to be looked at, as a priority, at the time of separation. Read the rest of this entry »
Power of Attorney – Should it be registered?
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
A correctly prepared and executed Power of Attorney confers on the Attorney the authority to do on behalf of the grantor (i.e. the person giving the Power of Attorney) anything that the grantor may lawfully authorise an Attorney to do (subject to compliance with any conditions or limitations specified in the Power of Attorney). In respect of an Enduring Power of Attorney, authority to act as the Attorney of the grantor is not conferred until the Attorney accepts the appointment by signing the Power of Attorney. Read the rest of this entry »
Power of Attorney – Two or More Attorneys
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
Often, a person creating a Power of Attorney (“the grantor”) decides to appoint two or more people to be his or her Attorneys. If so, the grantor must decide whether the Attorneys will be appointed jointly, jointly and severally or severally. Read the rest of this entry »
Enduring Power of Attorney
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
A common reason why a person appoints another person to be his or her Attorney is the fear by the grantor (i.e. the person making the Power of Attorney) that he or she may be unable to manage his or her affairs due to illness causing lack of mental capacity (such as dementia). If that is the reason for the creation of the Power of Attorney then it is important the Power of Attorney is an Enduring Power of Attorney. Section 19 of the Powers of Attorney Act 2003 provides that an Enduring Power of Attorney is created if: Read the rest of this entry »
Power of Attorney – Who Can Benefit?
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
Section 12(1) of the Powers of Attorney Act 2003 provides that an Attorney appointed pursuant to a Power of Attorney cannot confer a benefit on himself or herself unless the Power of Attorney expressly allows the Attorney to do so. Read the rest of this entry »
Still Breed them Local after 30 Years
Newcastle law firm introduces newly appointed Associate Directors
Mullane & Lindsay has announced the appointment of two new associate directors, both by internal appointment.
Michael McGrath practices in property and commercial law, with a particular emphasis on commercial leasing and on the tax implications of various transactions. Michael has been with the firm for 10 years.
Kristy Nunn works primarily in the area of civil litigation, and has particular expertise in professional indemnity and insurance claims generally. Read the rest of this entry »
Ademption of Wills – What is it?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
Let’s take a simple Will, in which I leave my house at1 Smith St,Smithtown, to my daughter, and the balance of my estate (which includes, say, a holiday house, some bank accounts, shares and the like) to my grandchildren.
The gift of my residence is a specific bequest or a ‘specific gift’. It only operates after I die. However if I sell my residence before I die, but don’t change my Will, the general legal rule is that the specific gift fails – the specific asset I intend to leave no longer exists, so my daughter would get nothing. This is what is meant by ‘ademption’. It often doesn’t matter that I may have sold my house at Smith St, to buy another one in Jones St. Read the rest of this entry »
Unsigned Wills – Would you take the chance?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The NSW Supreme Court recently considered whether an unsigned Will of a deceased person should be acted on, as representing his final testamentary wishes.
Under the Succession Act 2006 the Supreme Court has specific power to consider whether an unsigned document (or a document that may be partially signed, but without the degree of formality usually required of a Will) should be admitted to probate and implemented as the last wishes of a deceased person. Read the rest of this entry »
SUPERANNUATION – Binding Death Nomination
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
It is prudent for a member of a Superannuation Fund to file a binding death benefit nomination if at all possible. This ensures that his or her Superannuation benefits are paid in accordance with the wishes of the member after death. Before doing so, a member should check with his or her fund to ensure that there is provision in the rules of the Superannuation Fund for the filing of a nomination. The nomination removes the discretion of the trustees, as the trustee must pay the Superannuation in accordance with the nomination. To be effective, the binding death benefit must: Read the rest of this entry »
SUPERANNUATION – Who Gets It?
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
A person’s Superannuation is often substantial and sometimes even a person’s largest asset. However, many people are under the misunderstanding that when they die, their Superannuation will pass under the terms of their Will. This is not correct.
Each Superannuation Fund has a trustee and the trustee of the Fund determines who receives the Superannuation after the owner of the Superannuation dies. The trustee is bound to take into consideration, the terms of the Superannuation Trust Deed and the relevant legislation. However, the trustee is not bound to take notice of the deceased’s Will. You may well ask the question “How do I ensure my Superannuation goes to the person (or persons) of my choosing?”. Read the rest of this entry »
SUPERANNUATION – Who Should Benefit On Death?
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
If a member of a Superannuation Fund chooses to file a binding death benefit nomination then the member can only nominate one or more dependents (as defined in the legislation) or the member’s legal personal representative. A dependent includes a spouse of the member, any child of the member and any person with whom the member has an interdependency relationship. An interdependency relationship between 2 persons exists if: Read the rest of this entry »
Bequests of Real Estate in Wills
By Sally Davies
Sally Davies is a Solicitor at Mullane & Lindsay in Newcastle and specialises in our Commercial, Property & Estates Law Team
Care should be exercised when including a specific gift of real estate in a Will, with particular attention paid to what should happen to the bequest in the event that the property is sold and the proceeds of sale used to fund alternative accommodation. Read the rest of this entry »
Abolition of Torrens Assurance Levy
By Sally Davies
Sally Davies is a Solicitor at Mullane & Lindsay in Newcastle and specialises in our Commercial, Property & Estates Law Team
The NSW Government has abolished the controversial Torrens Assurance Levy from 1 July 2011.
This levy was introduced by the previous government on 1 July 2010, and was imposed on all property transactions over $500,000. The amount payable was determined on a sliding scale according to the purchase price, and was up to 0.25% of the value of the property being transferred. Read the rest of this entry »
Regional Relocation Scheme
By Sally Davies
Sally Davies is a Solicitor at Mullane & Lindsay in Newcastle and specialises in our Commercial, Property & Estates Law Team
The NSW Government’s Regional Relocation Scheme commenced on 1 July 2011 and will operate for 4 years.
Under this scheme, purchasers can receive a one-off payment of $7,000 for relocating from their metropolitan home to a regional home. The grant can only be received once, and does not apply to the purchase of vacant land. Read the rest of this entry »
Senior’s Principal Place of Residence Exemption
By Sally Davies
Sally Davies is a Solicitor at Mullane & Lindsay in Newcastle and specialises in our Commercial, Property & Estates Law Team
On 1 July 2011, the NSW Government extended the Seniors Principal Place of Residence Duty Exemption to persons aged 55 years or older (previously 65 years or older).
Seniors who purchase a new home, or who make an off the plan purchase when construction has commenced, may be entitled to a full stamp duty exemption of under the Seniors Principal Place of Residence Duty Exemption under section 87A of the Duties Act 1987. Read the rest of this entry »
Making a Power of Attorney – Part 2
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
The Powers of Attorney Act provides that an Attorney is not entitled to benefit himself or herself unless the Principal (the person appointing the attorney) specifically empowers the Attorney to do so in the Power of Attorney. It is commonplace for a spouse to appoint his or her spouse as Attorney. Often a substitute Attorney is not appointed in the event that the spouse dies or is unable to act as the Attorney. Section 12 (2) of the Powers of Attorney Act allows a clause to be added to the Power of Attorney whereby the Principal authorises the Attorney to confer benefits on the Attorney to meet his or her reasonable living and medical expenses.
Making a Power of Attorney – Part 1
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
A Power of Attorney is a document which enables a person (the Principal) to appoint another person to be his or her Attorney. Subject to the terms of the Power of Attorney, the Attorney is free to make business decisions for the Principal. The Power of Attorney can become effective immediately or at some future time. When the Power of Attorney becomes effective it does not mean that the Principal loses the ability to make his own business decisions. It simply means that there is a second person who can also make business decisions for the Principal. The Powers of Attorney Act 2003 sets down the rules relating to Powers of Attorney.
If a Principal appoints two or more Attorneys then they can be appointed either jointly, or jointly and severally. If the Attorneys are appointed jointly then all decisions by them must be joint. If they are appointed jointly and severally then the Attorneys can make independent decisions. Read the rest of this entry »
Self Managed Super Funds & Enduring Powers of Attorney
By Mark Sullivan, Director/Accredited Specialist, Mullane & Lindsay, Newcastle Office
Enduring Powers of Attorney are an important part of any succession plan, especially if you are a member of a self-managed superannuation fund (SMSF).
An Enduring Power of Attorney appoints someone to make decisions on your behalf, particularly if you are incapacitated from trauma, stroke, dementia or if you are unable to communicate for any reason.
If you are a member of a SMSF, you must generally also be a trustee or a director of its trustee company. If you lose capacity, you can no longer be a trustee or a director of the company which may mean you cannot continue as a member of the SMSF and your member balance may have to be rolled to a retail super fund. This can have significant transaction costs (such as CGT and duty), and can also lead to many practical issues. For example, the trustee may need to sell assets to make the fund liquid so it can transfer benefits to a retail fund. Read the rest of this entry »