Estate planning is more than just preparing a Will. You should also consider who will make decisions during your lifetime should you be unable to make those decisions for yourself. These decisions include your legal and financial affairs, and your health and lifestyle. For this you will need to appoint a Power of Attorney and an Enduring Guardian.
A Power of Attorney is a legal document which deals with legal and financial decision making. An Appointment of Enduring Guardian is a further legal document which deals with health, medical and lifestyle decision making. These documents enable you to appoint trusted family members and/or friends to make decisions for you in the event you lose capacity to make those decisions for yourself in the future.
To prepare both of these documents you must have capacity. It is therefore important you prepare the documents whilst you can understand the nature and effect of the documents.
If you lose capacity and do not have a Power of Attorney and/or Appointment of Enduring Guardian, the Guardianship Division of the NSW Civil and Administrative Tribunal has the authority to determine applications for substitute decision makers. They can issue orders to appoint a financial manager and/or guardian on your behalf. Whilst this may result in added stress for your loved ones, it may also result in someone being appointed who you may not have ordinarily appointed yourself.
In determining who you should consider appointing, it is important they are trustworthy and will act in your best interests. In terms of a Power of Attorney, they should be responsible enough to manage your finances. You can appoint more than one person and by doing so you can elect for them to be appointed jointly, or jointly and severally. Jointly means they are only able to make decisions if they all agree about the decision. Jointly and severally means they can make decisions together but can also make decisions independently of each other.
At Everingham Solomons we have the expertise and experience to assist you with all your estate planning needs, because Helping You is Our Business.
Click here for more information on Jessica Wadwell
I am a recent addition to the Everingham Solomons business and property team.
I grew up in the New England on beef cattle farming properties around Glen Innes. Growing up I loved the rural lifestyle and campdrafting.
Tamworth offers a great country lifestyle and my fiancé and I moved here in 2021.
I started my Law degree at Bond University before finishing at the University of New England.
After graduating in 2020, I moved to Brisbane where I worked in a leading Agribusiness and Property Law team at a well-known Queensland law firm. I gained experience across a range of property sales and acquisitions from large cattle station aggregations to commercial properties.
When I’m not in the office I enjoy spending time on the family farms, catching up with friends at horse events or a day out on the water attempting to ski.
At Everingham Solomons, I work with Clint Coles in the Business Law team where I focus on property sales and purchases from residential conveyancing to rural and commercial transactions. We also specialise in business sales and purchases, leasing and succession planning.
As a lawyer, I enjoy helping people with transactions to make the process as simple as possible while protecting their interests. I look forward to doing this for the local community as part of the Everingham Solomons team, where Helping You is Our Business.
Anyone who has spent time on the road would have noticed speed cameras deployed as a tool to prevent excessive speed. Sometimes people who receive speed camera tickets question the accuracy of the camera.
If a request for review of the fine by Revenue NSW is unsuccessful, the only option if the fine is still disputed, is to take the matter to Court.
Whilst it is possible to challenge the accuracy of speed cameras, it is difficult. The legislation is drafted in a way that the speed camera is presumed to be accurate. Sections 137 – 140 of the Road Transport Act 2013 NSW (“RTA”) stipulate that as long as the prosecutor provides a certificate that the speed camera was an “approved traffic enforcement device” that was “approved for speed measurement”, the reading/photographs generated by the camera is taken as prima facie evidence that the speed camera was accurate and reliable.
Under section 141 of the RTA, it is possible to rebut the presumption that the speed camera is accurate and reliable. This presumption can only be rebutted if the evidence rebutting the speed camera’s accuracy/reliability is “adduced from a person who has relevant specialised knowledge”. In plain English, the speed camera is presumed accurate unless this presumption is rebutted and to rebut it there must be an expert report/evidence supporting challenging or contradicting the accuracy of the camera.
I recently became aware of a self-represented bus driver, who was challenging a speed camera fine in the Local Court. His bus was fitted with cameras and GPS tracking which allowed him to determine the speed he was travelling at the exact time the alleged speeding offence took place. The GPS print out showed the bus was travelling below the speed limit when it was alleged he was speeding. The self-represented litigant, no doubt, turned up at Court that morning confident that he would be successful when defending the matter, after all he had a GPS print out.
Unfortunately for him, he was unaware of the expert evidence requirement imposed by section 141 of RTA to overturn the presumption that the speed camera was correct. As he had no expert report, his GPS print outs, on their own, would be insufficient to overturn the presumption that the speed camera was accurate. This is set out in Roads & Maritime Services v Noble-Hiblen [2019] NSWSC 1230.
Luckily for this bus driver, he received some pro bono advice on the day of hearing advising him of this evidentiary requirement and he was able to adjourn the matter to obtain the required expert report.
As the above example demonstrates, traffic law is often quite complex. For efficient and expert advice in traffic matters contact Everingham Solomons where Helping You is Our Business.
For many people, this time of year means connecting with loved ones from near and far. Coming together in this way provides the opportunity to discuss the lifesaving decision to become an organ donor and to communicate your wishes to those nearest and dearest to you. It is not uncommon for a person to want to record their wish to become an organ donor in their Will. However, because a Will does not operate until a person’s death and is often not read for some time after death, there are better options for people to record their wishes to donate their organs.
The Australian Organ Donor Register (the Donor Register) is the only national register for people aged 16 years or older to record their decision about becoming an organ and tissue donor. There are a number of ways you can register to be an organ donor including, but not limited to, the following:-
Even if you have previously registered your decision elsewhere (for example on your driver’s licence), it is important to register your donation decision on the Donor Register. This is because in NSW, you can no longer register a donation decision via your driver’s licence.
Secondly, people can record their wish for organ and tissue donation in their Appointment of Enduring Guardian. This is not a substitute for registering as an organ donor. An Appointment of Enduring Guardian is a legal document that gives a person the power to say who they want to have authority to make medical and lifestyle decisions for them if through accident, illness or misadventure a person loses the ability to make decisions for themselves.
Finally, it is important that you discuss your wishes with your family as they will have the final say. Family are more likely to follow your wishes if they already know about them. If over time your views or goals change, it is important that you let your family and enduring guardian(s) know.
Presently there are some 1,750 Australians on the waitlist for an organ transplant and a further 12,000 having kidney dialysis who would benefit from a transplant. Only 1 in 3 Australians have joined the Donor Register, even though statistics reveal the majority of Australians would like to donate their organs after they die. This reinforces why it is important to register, and equally important for donors to make your loved ones aware of registration. Taking the time to have these conversations could help save the lives of people currently spending their Christmas waiting for a transplant.
If you need assistance in any estate planning matter, please contact Everingham Solomons, because Helping You is Our Business.
Click here for more information on Lesley McDonnell
It was announced that as at 28 November 2022, the Land and Environment Court of NSW will be revoking its COVID 19 policies resulting in hearings and Court attendances back to being conducted in person.
During the COVID 19 pandemic NSW Courts switched to Audio Visual Link (AVL) methods to conduct trials and court attendances to limit contact, however they have slowly been transitioning back toward usual pre-pandemic practice.
Most branches of the Local, District, Supreme and Federal Courts have already repealed their COVID policies and have made the transition back to in person attendances and the remaining NSW Courts are sure to follow soon.
In accordance with pre-pandemic procedures, a party can request to attend Court by AVL, however this needs to be approved by the Registrar of that Court.
There does appear to be some beneficial changes that were driven by the pandemic, which will overall make the Court systems easier to navigate with less attendances being required including submission of Orders being conducted online.
If you need to appear in Court, contact Everingham Solomons to see one of our Litigation team because Helping You is Our Business.
When you are dealing with land and a deceased Estate, your conveyancer/solicitor will use terminology you are not familiar with.
The first step is ascertaining if the deceased left a Will. If the deceased left a Will, the executor will need to apply for a Grant of Probate from Supreme Court of NSW. A Grant of Probate is a document issued by the Supreme Court of NSW acknowledging the validity of the deceased’s Will and authorizing the executor to administer the Estate.
If there is no Will, the next of kin of the deceased will need to apply for Letters of Administration. This is a document issued by the Supreme Court of NSW authorizing the next of kin (known as the “Administrator”) to administer the Estate according to intestacy rules.
Once Probate or Letters of Administration are obtained by the executor/administrator, the land is then able to be dealt with.
Land in NSW can be held by a person three ways. Firstly, as an individual, secondly, jointly with another person, and thirdly, as tenants in common with one or more persons. All these holdings are dealt with separately on death.
Holding land as an individual or as tenants in common with another person
If the deceased did not leave the land to a beneficiary by way of his/her Will, the land will need to be transmitted to the executor by way of a Transmission Application to Executor and registered with Land Registry Services with fees payable via the PEXA platform. The Transmission Application to Executor will enable the executor to sell the land and once sold, the funds of the Estate will then be distributed to the beneficiaries.
If the deceased left the land to a beneficiary under his/her Will, the property will be transmitted to the beneficiary by way of a Transmission Application to Beneficiary. Upon the payment of a $50.00 stamp duty fee and registration fees of the Transmission Application to Beneficiary with the Land Registry Services via the PEXA platform, the land will be transmitted into the beneficiary’s name.
Holding the land jointly with another person
If the deceased holds the land jointly with another person, the survivor of the land will become the registered proprietor of the land. To enable the land to be transferred to the surviving joint tenant, a Notice of Death form with evidence of the Death Certificate of the deceased needs to be registered with the Land Registry Services with fees payable via the PEXA platform.
At Everingham Solomons, we have the expertise to assist you with all legal matters regarding your land, because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
Sang Hall and Oates in their 1984 hit. Being out of touch (with the legislation) and out of time does not necessarily prevent you from commencing family law property proceedings.
Section 44 of the Family Law Act establishes time limits on commencing family law proceedings with regards to property settlements or spousal maintenance.
Under Section 44(3), in matrimonial matters (those which deal with parties to a marriage), an Application for property proceedings must be commenced within one year from the date of divorce being granted.
Under Section 44(5), in de facto relationships, an Application for property proceedings must be commenced within 2 years from the date of the end of the relationship.
Despite this, it is not uncommon that parties to a marriage or de facto relationship may not have undertaken an application for property settlement within the time limits imposed under Section 44. Sometimes this can be to the severe detriment of one of the parties in particular.
Fortunately, our adversarial legal system grants discretion to the Federal Circuit and Family Court of Australia (“the Court”) as to whether parties can still undertake a property settlement.
Under Section 44 of the Family Law Act, the Court will consider whether denying the Application will cause “hardship” to either party, or any child or children of the relationship.
The term “hardship” is not defined in the Family Law Act, leaving it up to the discretion of the Court as to whether they will allow proceedings to be commenced.
Over the years, case law has assisted to develop how the Court will use its discretion. The case of Jacenko & Jacenko [1986] FamCA 25 established the following elements to be considered by the Court:
Is there a prima facie case? That is whether at face value the applying party (“Applicant”) would have a property settlement to pursue but for the time limit passing.
Would either party or any children suffer hardship? That is whether granting or denying the application would cause the Applicant or the Respondent to be unfairly prejudiced or suffer an injustice. The Court may consider such facts as the history of the relationship, the conduct of the parties and the possible consequences for the parties.
Is there a ‘reasonable’ explanation for the delay? The Court will consider whether the Applicant has adequately explained the reasons the delay in making the Application.
A more recent case of Slocomb & Hedgewood [2015] FamCAFC 219, an Application for property settlement was granted in favour of the wife despite being 18 years out of time.
The short facts of this matter, the parties were married in 1989, and divorced in 1995. The wife and the three children moved from the matrimonial home where the husband remained after remarrying. The primary judge found it would cause unjust hardship on the husband to enter a property settlement that required the sale of the former matrimonial home, where he resided with his second wife and their children.
The wife appealed to the Full Family Court who, in applying the principles of Jacenko, found that although the wife’s explanation for the delay, being she was self-represented in the divorce and was unaware of Section 44, was inadequate, the hardship faced by the wife outweighed that of the husband. Accordingly, leave to commence proceedings was granted to the wife thereafter.
At Everingham Solomons, we have the expertise and experience to assist you with all matters relating to family law, because Helping You is Our Business.
Some of the changes to legislation brought on by the COVID-19 pandemic are developments in “electronic witnessing” of signatures through audio visual links.
In 2020 the Electronic Transactions Act2000 (NSW) was amended to allow signatures to be formally witnessed through any platform or program that allows visual communication between two or more people such as Zoom, Skype or FaceTime. Through such audio visual links a witness can attest to another person’s signature on a document, the swearing of an affidavit and verify the identity of the person signing.
Importantly, even though the witness is not in the same room as the person signing the document, a lot of the formal requirements remain the same. The witness must still observe the person signing the document over the audio visual link. This requires the witness to ensure they can confirm the identity of the person signing and can clearly see them write their signature in every instance.
The witness must then sign their own copy of the document being executed as a counterpart, or have the signatory scan a copy to the witness or post the original to the witness to sign as soon as possible. If the documents are signed by the signatory and witness in counterparts, both of the separate copies are considered parts of the original document.
One important difference with electronic witnessing is that the document being signed must include a statement clearly identifying that the document was witnessed electronically in accordance with section 14G of the Electronic Transactions Act 2000.
Although COVID restrictions have now eased, it appears that this legislative change is here to stay as it was extended indefinitely in 2021. This has been a widely welcomed and useful progression to legal witnessing requirements and is a practical way to witness signatures on many different types of documents including Wills, affidavits and contracts.
If you have any questions regarding electronic witnessing, contact a solicitor at Everingham Solomons because Helping You is Our Business.
It’s the age-old question, who do you get to act for you in a property transaction?
Can you use a Conveyancer or do you need a Solicitor?
If you are dealing with a simple transaction, then the short answer is you can use either.
Licensed Conveyancers are professionals who are registered with NSW Fair Trading and have a formal qualification relevant to this area of practice.
Solicitors are professionals who must have formal qualifications (minimum of a Law Degree and Graduate Diploma) and hold a current practicing certificate with the NSW Law Society. They must also hold significant professional indemnity insurance.
Can they both do the job for you? Absolutely.
However, there are many benefits of engaging a firm to act for you who has access to both Conveyancers and Solicitors.
Simply put, if you retain a legal firm, you will get an all-in-one service. If the matter goes wrong or you need to take legal action, you won’t have to take your matter to a legal firm. This will save you from having to go through the additional cost and process of instructing another person, this time a Solicitor, and providing all of the details of your case.
Solicitors will know your legal rights as well as the Court process, have the skills to negotiate (with a view to settling a dispute) and they can represent you if the matter proceeds to Court.
Solicitors will also be able to assist with many other things that usually go hand in hand with property transactions like providing advice on the purchasing entity. Should I use a company or trust? Is the transaction subject to GST or is there an exemption? Is capital gains tax payable and are there any concessions? They can also provide advice on loan and mortgage documents, tax implications, leasing issues and estate planning. Do you need to change your Will and/or power of attorney in light of your property transaction? Unfortunately, Conveyancers are very limited in what advice and services that they can give to you.
Everingham Solomons has both Licensed Conveyancers and Solicitors on our team, so you get the best of best worlds, because Helping You is Our Business.
The deceased died in 2018 and was survived by his second wife Nejme and 9 adult children from his first marriage. The deceased died leaving a will made in 2015 whereby the deceased gave Nejme a right of residence for 2 years in the home shared by the deceased and Nejme for the duration of their 17-year marriage (the home), $200,000 to one child, and the rest of the proceeds of sale of the home equally to Nejme and his children. Nejme made an application to the Court for further provision from the deceased’s estate.
Nejme was an eligible person as the deceased’s spouse at the time of his death to make an application to the Court for further provision from the deceased’s estate. The issue the Court had to determine was whether: “…adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made (i.e. Nejme) has not been made by the will of the deceased person …”. In the event the will failed to make adequate provision for Nejme, then the Court was empowered by legislation to make an order for provision “as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”.
The Court noted that, whilst “there was no special rule for widows”, “there is a basic minimum which the community regards as necessary for testators to provide for their spouses where their marriage has been of medium to long duration. Those basic necessities include a secure roof over the remaining spouse’s head and at least a small capital sum”. In this case, the Court held “I think it is plain that now, in 2021, adequate provision for the proper maintenance, education or advancement in life has not been made by the will”. “In short, her marriage of 17 years places Nejme in the position of any other widow. She is entitled to a reasonable measure of security of living quarters and means for the rest of her days”.
When considering what additional provision ought to be made from the deceased’s estate in favour of Nejme, the Court considered a range of orders. Taking into consideration the tensions and opposing interests that existed between Nejme on the one hand and the deceased’s children on the other, the Court favoured an outcome that would permit Nejme and the deceased’s children to go their separate ways. The Court ordered further provision out of the deceased’s estate in favour of Nejme of $500,000.
At Everingham Solomons we have the expertise to assist you with all matters relating to family provision claims, because Helping You is Our Business.
Click here for more information on Lesley McDonnell
Estate planning is more than just preparing a Will. You should also consider who will make decisions during your lifetime should you be unable to make those decisions for yourself. These decisions include your legal and financial affairs, and your health and lifestyle. For this you will need to appoint a Power of Attorney and an Enduring Guardian.
I am a recent addition to the Everingham Solomons business and property team.
Anyone who has spent time on the road would have noticed speed cameras deployed as a tool to prevent excessive speed. Sometimes people who receive speed camera tickets question the accuracy of the camera.
For many people, this time of year means connecting with loved ones from near and far. Coming together in this way provides the opportunity to discuss the lifesaving decision to become an organ donor and to communicate your wishes to those nearest and dearest to you. It is not uncommon for a person to want to record their wish to become an organ donor in their Will. However, because a Will does not operate until a person’s death and is often not read for some time after death, there are better options for people to record their wishes to donate their organs.
It was announced that as at 28 November 2022, the Land and Environment Court of NSW will be revoking its COVID 19 policies resulting in hearings and Court attendances back to being conducted in person.
When you are dealing with land and a deceased Estate, your conveyancer/solicitor will use terminology you are not familiar with.
Sang Hall and Oates in their 1984 hit. Being out of touch (with the legislation) and out of time does not necessarily prevent you from commencing family law property proceedings.
Some of the changes to legislation brought on by the COVID-19 pandemic are developments in “electronic witnessing” of signatures through audio visual links.
It’s the age-old question, who do you get to act for you in a property transaction?
The deceased died in 2018 and was survived by his second wife Nejme and 9 adult children from his first marriage. The deceased died leaving a will made in 2015 whereby the deceased gave Nejme a right of residence for 2 years in the home shared by the deceased and Nejme for the duration of their 17-year marriage (the home), $200,000 to one child, and the rest of the proceeds of sale of the home equally to Nejme and his children. Nejme made an application to the Court for further provision from the deceased’s estate.