As of Monday 20 November 2017 changes to the Graduated Licensing Scheme (the process you go through from learner to fully licensed driver) are being implemented for new licence holders.
These changes only apply to new licence holders, being people applying for a new category of licence after 20 November 2017.
For new licence holders after 20 November 2017, there are 3 major changes:
1. Hazard Perception Test
The Hazard Perception Test (“HPT”) is a computer based test that measures a driver’s ability to recognise potentially dangerous situations and respond appropriately. Currently Provisional P1 (red) licence holders must pass the HPT to progress to a Provisional P2 (green) licence. As of 20 November 2017 Learner Drivers will need to pass the HPT before they are eligible to undertake a driving test.
2. Driver Qualification Test
The Driver Qualification Test (DQT) is a two part computer based test that assess a driver’s knowledge of the road rules and a driver’s ability to recognise and respond to hazards. Currently Provisional P2 licence holders must pass the DQT to progress to a full licence. On 20 November 2017 the DQT will be abolished for new licence holders.
3. Extension of Licensing Period for Suspended Drivers
A driver must hold a Provisional P2 licence for a period of 2 years before they are eligible for a full licence. Under the new scheme, drivers will not have to undergo any further testing at this stage however they will only be eligible for a full licence if they have not committed an offence resulting in suspension. Where a Provisional P2 driver receives a demerit point suspension, or has their licence suspended for unsafe driving, they will remain a provisional driver for an extra 6 months for every suspension they receive.
All existing Licence conditions and restrictions for learner and provisional drivers (eg. speed limits, probation on driving high powered vehicles; peer passenger restriction; zero blood alcohol limit; prohibition on using a mobile phone while driving; and displaying plates on the front and rear of the vehicle) remain in force.
At Everingham Solomons Solicitors we have the knowledge and experience to assist you in all traffic law matters because Helping You is Our Business.
A Grant of Probate is a document issued by the Supreme Court that acknowledges the validity of the deceased’s Will and authorises the Executor/s to administer the Estate.
Whether or not Probate is required depends on the nature and value of the deceased’s assets.
If the deceased held land in their sole name or as a Tenants In Common with another, Probate will be required.
Financial institutions, superannuation funds and share registries may also require Probate for larger investments before they will allow those assets to be dealt with. Generally they will require Probate if the amount held with them is greater than $30,000.
What is involved in obtaining a Grant of Probate?
ascertain assets and liabilities;
file an online Notice of Intention to make an application for Probate;
14 days after the date of publication of the notice of intention send Summons, Grant, Affidavit of Executors, original Death Certificate, Inventory of Property, and original Will to the Supreme Court for filing.
It takes the Supreme Court approximately 6 weeks to issue a Grant of Probate. Once the Grant has been obtained the Executor/s finalise the estate assets and liabilities and distribute to the beneficiaries.
If a person dies without a Will, or with a Will but with no living Executor, the same process applies however grant is called Letters of Administration.
The solicitors at Everingham Solomons have the knowledge and experience to assist you in obtaining grants and estate administration and distribution because Helping You is Our Business.
If your circumstances suddenly changed and you could no longer manage your own affairs, do you have the necessary documentation in place to authorise another person to make financial and legal decisions on your behalf?
If you don’t then you ought to consider making a Power of Attorney.
A Power of Attorney is a document which allows you to appoint someone to manage your financial and legal affairs. For example it empowers your Attorney to manage your assets and operate your bank accounts.
The document may be structured in many different ways so that it is tailored to suit your needs, for example:
You may appoint more than one person.
If you appoint more than one person you can appoint them jointly or independently of each other.
You can make a Power of Attorney for a limited period of time, for example, if you are planning to travel overseas.
You can make an enduring Power of Attorney so it continues to operate even after you lose mental capacity.
You can authorise your Attorney to give reasonable gifts on your behalf.
You can authorise your Attorney to use your money to benefit another person, for example spouse or children.
You can authorise your Attorney to act immediately, or you can require your Attorney to produce evidence of your mental or physical incapacity before they can make decisions on your behalf.
You can impose conditions and limitations on the Attorneys power.
You can give directions regarding management of certain assets.
At Everingham Solomons we have the knowledge and experience to assist you in drafting a Power of Attorney to suit your needs because Helping You is Our Business.
The Roads and Maritime Service (RMS) has the power to suspend driving licences in certain circumstances. If your licence is suspended by the RMS for speeding by more than 30 kilometres per hour, or loss of demerit points if you are a provisional licence holder, you can appeal the suspension to the Local Court.
The Court does not determine guilt or innocence at the appeal. It determines whether the suspension should be upheld or whether the appeal should be allowed. In making this decision the Court will take into consideration the following:
the circumstances of the offence, for example where you were driving from and where you were going, how you came under notice, why you were speeding;
your traffic record, for example how long you have been driving for and if you have committed any prior offences; and
your need for a licence for example if you will lose your job if you lose your licence, or if a sick relative is reliant upon you to drive them to medical appointments, or no availability of public transport.
To support your application we recommend:
obtaining a reference from your employer, or someone who has known you for a lengthy period, attesting your good character; and
attending the Traffic Education Program conducted by the PCYC. This program is designed to increase participants’ awareness of their obligation as road users and the consequences of dangerous driving in the hope that it will reduce the rate of reoffending.
If you need advice and / or representation for a traffic matter, the solicitors at Everingham Solomons can assist you because Helping You is Our Business.
The harsh reality is that if you do not have a Will, you do not have a say.
If you die without a Will – or without an effective Will – your Estate is dealt with under the intestacy provisions in Chapter 4 of the Succession Act 2006.
As an example:
If you have a spouse (somebody to whom you are married, or with whom you were carrying on a domestic partnership, being a relationship in existence for a continuous period of 2 years or resulting in the birth of a child) your spouse will be entitled to the whole of your Estate.
If you and your spouse have children, your spouse is entitled to the whole of your Estate.
If you have children, who are not the children of your spouse, then your spouse is entitled to your personal effects, a statutory legacy and one half of the remainder of your Estate.
There is a simple way to avoid the complexity of intestacy. Make a Will.
The only way to ensure that you have control over deciding how your estate is divided is to have a valid Will.
Once you have made your Will, it is important that you review it every few years and update it as your circumstances change.
At Everingham Solomons we have the knowledge and experience to identify the legal issues relevant to your situation and advise you of the options available so you can make an informed decision that is right for you because Helping You is Our Business.
In 2014 Sally made a Will in which she left her property to her son Peter and the remainder of her estate her to daughter Jane.
In 2015 Sally made a Power of Attorney appointing her daughter Jane as attorney.
In 2016 Sally had a stroke and had to go into care.
Jane needs to sell Sally’s property to pay for the nursing home accommodation bond.
Can Jane sell the property?
Provided it is necessary and appropriate in all the circumstances and in Sally’s best interests, Jane can sell Sally’s property and use the sale proceeds to finance the nursing home accommodation bond, regardless of the fact that the property is bequeathed to Peter in Sally’s Will.
What does that mean for Peter?
For Powers of Attorney made prior to 16 February 2004, the common law of ademption applies, that is if the gift to the beneficiary no long exits the beneficiary misses out.
Luckily for Peter, where a Power of Attorney is made after 16 February 2004, which Sally’s was, the harshness of the common law is ameliorated by section 22(1) of the Power of Attorney Act 2003 which states:
“any person named as a beneficiary under the Will of a deceased who executed an enduring power of attorney has the same interest in any surplus money or other property arising from sale or disposition of any property by the attorney under the power of attorney, as the named beneficiary would have had in the property if no sale or dealing had been made.”
This means that when Sally passed away Peter will be entitled to the refund of the accommodation bond, as it represents the proceeds of sale from the house bequeathed to him.
If you want your wishes to take effect, it is imperative that your documents be up to date and properly drafted. You should be aware that each case has unique facts and these general propositions cannot be applied in every circumstance to achieve the same result. The experienced solicitors at Everingham Solomons can assist you with all of your estate planning needs because Helping You is Our Business.
Contrary to popular belief freedom of speech and freedom of expression does not give you immunity to make unfounded or baseless accusations or allegations, or to vindicate, ridicule or threaten.
The prevalence of social media, its instantaneousness and reach makes it imperative that you consider the impact and effect of what you post online.
The several occasions in which the District Court has awarded damages for defamatory social media posts appears to have raised awareness of the civil remedies however, the criminal penalties and potential impact on ongoing court proceedings continue to be overlooked by a significant number of social media users. Making threatening or intimidating posts on social media does not protect you from prosecution simply because it was not done face to face. A comment that is threatening or intimidating in nature and incites fear in the person to whom it was directed, can result in charges, regardless of the method by which it was made.
People who are engaged in court proceedings often feel the need to post detrimental material or vent their frustrations. Whilst the recommended course of action is to refrain from doing so, if you must post, it is essential that you consider the impact that the post could have on your case should it be relied upon as evidence.
There can be serious ramifications so be astute in all forms of communication and think before you post, send or speak.
The Solicitors at Everingham Solomons have the knowledge and expertise to assist you with all court related matters because Helping You is Our Business.
Appointing someone as your guardian does not mean handing over your decision making power.
By creating an enduring guardianship you are protecting your interests, not purchasing a one way ticket to a nursing home.
An Appointment of Enduring Guardian only comes into effect if you reach a point where you are unable to make health and lifestyle related decisions for yourself. While ever you have capacity, you decide where you live and what medical treatment you receive. Your guardian only starts making health and lifestyle decisions on your behalf in the event you lose mental capacity that is, you are not of sound mind or understanding to make those decisions for yourself.
If you have any doubts whatsoever that your family members will act contrary to your best interest, then you need an Appointment of Enduring Guardian that appoints someone who will respect your wishes and do only what is best for you in the circumstances.
If you have specific wishes about where you live or what services you receive in the unfortunate event that you lose mental capacity, you need an Appointment of Enduring Guardian.
If you are opposed to undergoing a certain medical procedure for example blood transfusions, or receiving certain medical treatment, for example, being administered morphine, you need an Appointment of Enduring Guardian.
The friendly solicitors at Everingham Solomons have the knowledge and experience to assist you in appointing a guardian because Helping You is Our Business
I know it’s hard to accept but if you think “I’m young and healthy, I’ll worry about estate planning when I’m old and sick”, you are WRONG!
You drive a car, travel overseas, and you are not permanently encased in balls of cotton wool which means it is not just granny that needs to be thinking about protecting her interests.
If you want a say in how your assets are divided after your death, you need a Will. If you don’t have one, the succession legislation will make that decision for you.
If you want to nominate the person/s who will manage your financial and legal affairs should you get stranded overseas or otherwise require assistance, you need a Power of Attorney.
If you want to nominate the person/s who will make health and lifestyle decisions, such as where you live and what medical treatment you receive, in the event that you cannot make those decisions for yourself, you need an Appointment of Enduring Guardian.
If you are mentally incapacitated, for example, suffering from paranoid delusions, or in a coma, and you don’t have a Power of Attorney or Appointment of Enduring Guardian, the Tribunal will appoint someone to assume that role.
You can only make a Will, Power of Attorney and Appointment of Enduring Guardian while you have capacity to understand the nature and effect of the document, so the time is now. Don’t wait until it is too late.
The friendly solicitors at Everingham Solomons have the knowledge and experience to assist you with all of your estate planning needs because Helping You is Our Business.
How do you go about leaving unequal provision of your children in your Will?
Most people either don’t make a Will because they think their wishes won’t take effect or they execute a poorly drafted document which can burden their Executor with having to defend a Family Provision claim with no evidence of why they did what they did.
A Family Provision claim is an application made by an eligible person (spouse, child, dependent etc.) to the Supreme Court seeking that they receive a greater share of your estate to adequately provide for their proper education, maintenance and advancement in life.
You cannot prevent an eligible person from bringing a Family Provision claim. What you can do is attempt to insulate your estate by executing a Statutory Declaration to accompany your Will.
A Statutory Declaration setting out your reasons for distributing your estate in the manner outlined in your Will can:
Reduce the likelihood of a claim being made because it explains your reasoning; and
If a claim is made, reduce the likelihood of it succeeding because it provides the Court with insight into your wishes, information which is not otherwise available and is of invaluable assistance in determining the outcome of proceedings.
The friendly and experienced Solicitors at Everingham Solomons can assist you with all of your Estate Planning needs because Helping You is Our Business.
As of Monday 20 November 2017 changes to the Graduated Licensing Scheme (the process you go through from learner to fully licensed driver) are being implemented for new licence holders.