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By Pamela Wardle, Legal Practitioner Director
Are you contemplating leaving one of your children out of your Will? Have you finalised your divorce? Is someone financially or otherwise dependent on you? Under the Succession Act 1981, where adequate provision is not made from your estate for the proper maintenance and support of a child, spouse or dependent, the court may make an order for adequate provision to be made. This means that very careful consideration must be given to who you include as beneficiaries under your Will and who you exclude. The mere fact of estrangement or separation from a child or spouse, or drug or alcohol dependency may be an insufficient reason for them to be excluded from your Will. Likewise, leaving a nominal benefit in your Will (say $500) may be insufficient to protect your estate against a claim. There are many and varied factors which may be considered in determining if someone may be successful in a claim for further provision from your estate, including:
Contact us to discuss your options if you are considering excluding someone from your will.
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By Pamela Wardle, Legal Practitioner Director
You may have heard the term “easement” when purchasing or selling land. Easements may burden your land (allow someone else to use your land) or benefit your land (allow you to use someone else’s land). There are many different reasons an easement may be registered over land, such as to provide access, convey water, electricity, gas, telecommunications etc. Easements may be registered for government purposes (such as for Powerlink or local authorities) or between private landowners. The terms of easements are as many and varied as blocks of land. If an easement burdens your land, generally, you may be required maintain the easement area (such as mowing) and keep it free from debris. Easements also often restrict the types of structures the owner of burdened land can build in the easement area. You may also have obligations if an easement benefits your land. You may be jointly responsible for maintaining the easement area, particularly if the easement is for access purposes. You may be required to keep it free from debris, maintain any tracks or repair any works in laying or excavating conduits or pipes. It is important to investigate the area and terms of an easement before purchasing or leasing any land so you are clear as to what are your obligations and so you may avoid disputes with any neighbours. Contact our office to discuss any concerns you may have in relation to easements on your land or on land you intend to purchase or lease. By Pamela Wardle, Legal Practitioner Director
Under an enduring power of attorney, you may authorize your attorney to make two general types of decisions on your behalf. The first type has two branches: personal matters and health matters. Personal matters concern you and your personal wellbeing, such as where you live and with whom and who takes care of you on a day-to-day basis. Health matters are matters in which a health practitioner will usually request a decision, such as whether or not you are resuscitated, artificially hydrated or continue with life support. Your attorney cannot make decisions in personal and health matters unless you are unable to make those decisions for yourself. The second type includes financial matters, which means your attorney may deal with your bank accounts, shares, real property, government departments etc. It is important to remember that your enduring power of attorney does not automatically authorize your attorney to step into your role as a director or trustee. Your attorney can make decisions in financial matters from a time of your choosing (usually governed by your personal circumstances) and this power “endures” when you lose capacity to make decisions for yourself. You do not need to give your attorney the power to make all types of decisions nor do you need to appoint the same person for both types of decisions. Who to appoint as your enduring attorney under an enduring power of attorney can be a very complex decision. Make an appointment to see us to discuss the multitude of factors which may affect who you appoint and the decisions you allow them to make. By Pamela Wardle, Legal Practitioner Director
When purchasing a property, it is vital to ensure you have access to enough funds to complete the transaction when required (ie on the settlement date). Some common pitfalls in obtaining funds for a purchase are:
It can be incredibly risky to sign a contract which is not conditional upon finance or obtaining funds from other sources. Call us to assist you in making sure you have your funds when you need to have your funds. By Pamela Wardle, Legal Practitioner Director
There appears to be a misconception in general that if a person cannot pay their debts that they will simply declare bankruptcy so they will not have to worry about the bills anymore. Unfortunately, this is far from reality. The first thing to consider is where a bankruptcy is recorded. A permanent notation of bankruptcy will be entered on the National Personal Insolvency Index and there is also a notation with credit reporting agencies for a period of time. These records can have significant effects on any future credit contracts such as applying for a home loan or even rental contracts for electronic goods. Next, consider the effect on non-cash assets and future income. During the bankruptcy period (usually three years but may be five or eight years) a trustee will be appointed to manage assets and debts and the trustee may, among other things: 1. sell assets to pay debts; 2. recover income earned over a specified limit; 3. recover property transferred to someone else; or 4. deal with property acquired during a bankruptcy (eg from the death of a loved one). Also, a bankrupt person cannot keep tools or equity in a motor vehicle with a value over a specified limit. Finally, consider the effect of bankruptcy on careers and personal obligations. A bankrupt person may not be able to practice in some professions at all or may be restricted from holding a trust account in other professions. A bankrupt person cannot be a director of a company, a trustee of a trust, an attorney or an executor under a Will. If you are having difficulties paying your debts, we can refer you to the relevant people who may guide you through your options and obligations. By Pamela Wardle, Legal Practitioner Director
In our last article we discussed the Seller’s role on the Settlement Date. If you are purchasing a residential property, your role on the Settlement Date is different in some ways to the Seller’s role. Similarly to if you are selling, your solicitor usually takes care of the administrative details of ensuring the correct parties, cheques and documents are available at a time and place agreed with other solicitors and banks. Again, is absolutely vital to make sure you are available at all times in case your solicitor or financier needs further information or to sort any last minute issues that arise and to advise when settlement has been effected. It is strongly recommended that you undertake a pre-settlement inspection on the Settlement Date before the time arranged for settlement. Advise your solicitor what time you intend to undertake your inspection so the settlement time can be set to occur after your inspection. When you do your pre-settlement inspection be careful to note any issues, such as damage to windows, walls or floors or if fixtures (other than Excluded Fixtures) or Included Chattels have been removed etc. You should immediately notify your solicitor of any issues so you can discuss the rights that you may have before settlement occurs. If you do not contact your solicitor, you solicitor may assume that you agree to proceed. If you will be moving into the property, the Seller should have removed all of their possessions. Unless otherwise agreed, any of the Seller’s possessions which remain on the property after settlement may become your property. Be sure to check with your solicitor to ensure there are no exceptions which may apply. You should also ensure any insurance, which you should have arranged at the beginning of the Contract, are in place and that you have contacted your power supplier. Similarly to if you are selling, you do not need to transfer the water/sewerage account or rates as these are transferred when the Transfer has been registered with the Department of Natural Resources and Mines and notice has been given by that department to the relevant entities. If you are purchasing a property, contact us to discuss any other requirements which may be relevant to your circumstances. By Pamela Wardle, Legal Practitioner Director
If you are selling a residential property you have probably heard the word “settlement” repeatedly. A contract and subsequent residential conveyancing process is focussed toward the Settlement Date when the Seller hands over possession of, and the keys to, the property in exchange for the buyer handing over the Purchase Price (adjusted as required). Your solicitor usually takes care of the administrative details of ensuring the correct parties, cheques and documents are available at a time and place agreed with other solicitors and banks. Accordingly, is absolutely vital to make sure you are available at all times in case your solicitor or mortgagee needs further information or to sort any last minute issues that arise. Your solicitor will also need to contact you to advise when settlement has been effected. But what are your other responsibilities as seller? Unless it has been agreed otherwise, you will need to remove all of your possessions from the property before settlement, including any Excluded Fixtures listed in the Contract. You will also need to ensure any Included Chattels listed in the Contract and all fixtures (eg including curtains/blinds) remain. Usually, the buyer will undertake a pre-settlement inspection on the Settlement Date. If this is the case, it is customary for a seller to remove all possessions before the pre-settlement inspection so the Agent can lock the property and ensure no damage may occur between the pre-settlement inspection and settlement. You should also ensure power or gas accounts are cancelled or transferred and any insurances are cancelled (however, it is best to wait to cancel any insurances until you hear from your solicitor that settlement has been effected). You do not need to cancel your water/sewerage account or rates as these are transferred when the Transfer has been registered with the Department of Natural Resources and Mines and notice has been given by that department to the relevant entities. If you are selling a property, contact us to discuss any other requirements which may be relevant to your circumstances. By Pamela Wardle, Legal Practitioner Director
A Grant of Probate is a process where a deceased’s Will is submitted to the Supreme Court of Queensland to be proven as the last Will of that person and that the Executors are the correct people to administer the Estate. In Queensland, to obtain a Grant of Probate from the Court, the Executors must advertise in the Queensland Law Reporter and a local newspaper that they will be taking such action and serve a copy of that advertisement on the Public Trustee of Queensland. This advertising has a dual purpose: 1. it affords creditors an opportunity to notify the executors that the deceased owed money and for the debt to be repaid from the Estate before any funds are distributed to beneficiaries; and 2. it affords others an opportunity to put the executors on notice that: a. the Will advertised is not the latest Will; or b. the Will is deficient in another way, eg the executor did not have capacity or was influenced when the Will was made. A Grant of Probate will be required when a party notifies the executors that he or she intends to make a claim against the Estate or the Will is “attacked” in another way. However, a Grant of Probate may be required as part of the usual administration of the Estate where there are significant funds (eg often around $50,000.00) in the Estate in bank accounts, shares etc. Obtaining a Grant of Probate in an Estate can be a complex and confusing process. Please contact our office for further information in relation to Estates and the process of obtaining a Grant of Probate. By Pamela Wardle, Legal Practitioner Director
Negotiating a lease often represents a new business or venture and can be a very exciting time. At this stage, the parties often focus on issues which will apply immediately such as the rent payable, how it is payable and whether or not the rent includes GST, which charges are covered in outgoings and what proportion is payable by the Lessee and what is the term of the lease. When negotiating the lease it is equally important to consider the terms which relate to the end of the lease, for example: 1. In what condition are the premises to be left when the Lessee leaves? For example, is the Lessee to remove all fixtures and make good any repair, essentially leaving an empty shell? If not, what is to remain and in what condition? What types of costs must the Lessee pay if he or she does not comply with the terms of the Lease and how can the Lessor recover these costs? 2. What are the Lessor’s rights if the Lessee owes money at the end of the Lease? Can the Lessor recover those costs as a liquidated debt or are there specific steps the Lessor must follow before recouping those costs? 3. Who pays any legal costs associated with ending the lease? For example, if the lease is registered does the Lessee pay the costs of surrendering the Lease from the title? It is important to consider these issues and others which may arise at the end of a lease to assist all parties to end the lease on good terms. By Pamela Wardle, Legal Practitioner Director
If you are considering making a Will or an Enduring Power of Attorney and need to appoint an executor or attorney, respectively, there are certain criteria that your executor or attorney must satisfy. Some of these are well known, such as your trustee must be over the age of 18. Others are less considered. A person cannot be your executor or attorney if: 1. they are incapable understanding the nature of the power you have given them or the nature of the decisions you will need them to make after your death or during your incapacity; 2. they are bankrupt or insolvent; or 3. they have died. This may seem obvious, but it may be relevant if you consider appointing someone who is elderly, very ill or in a high-risk situation. It is also important to ensure your executor or attorney is someone you can trust to carry out your wishes and look after your best interest. This not only means that your executor or attorney must be someone who will respect and honour your beliefs and desires as you state them in your Will or Enduring Power of Attorney (and have the stamina to fight for them) but your trustee or executor must be physically able to carry out your wishes (ie in a reasonable location or physically able to sign documents and attend to administrative matters). It is important to consider who to appoint as your executor or attorney very carefully because appointing an inappropriate person may be unexpectedly disappointing for you or those you love. |
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