Too often people don’t devote the time they should to making a valid Will and keeping it up to date. Making a valid Will is one of the most important things a person can do to protect their loved ones. Once made, a Will should not be shoved to the back of a drawer and forgotten. Over time a Will needs to be reviewed and updated to reflect life changing events. You should seek professional advice to ensure your Will reflects your wishes and is in conformity with the law. The pitfalls of not doing so could mean an expensive court case as the following case demonstrates.
The deceased died in 2011 leaving a substantial estate and a 2010 Will. After his death, a further document titled “My Last Will and Testament” dated 16 January 2011 was found amongst the deceased’s personal papers. The 2011 document had been prepared by the deceased and although signed by him, it was not in conformity with the formal requirements for making a valid Will in NSW because it was not signed by the deceased in the presence of two witnesses.
When a document fails to comply with the formalities required to make a valid Will, an application can be made to dispense with the requirements for making a Will where the court is satisfied that the person intended the document to form his or her Will. An application was made by the executors of the 2010 Will to determine whether the 2011 document was intended by the deceased to form his Will.
In the months preceding his death, the deceased typed instructions for new Wills and gave those to his solicitor to enable new Wills to be prepared for him. The instructions were all headed “My Last Will and Testament” and took the same form as the 2011 document. Just two and a half weeks after making the 2011 document the deceased attended his solicitor’s office but did not mention to his solicitor that he had changed the Will which the solicitor had prepared for him less than six weeks previously.
In describing the deceased as a “seasoned Will-maker” the deceased’s solicitor gave evidence that the deceased was well aware that a Will should be signed in the presence of two witnesses and in his view the deceased would not have wished to leave the enforceability of such a significant document as his Will to chance.
Ultimately the court was not satisfied that the deceased intended the 2011 document to form his Will. On the question of why the 2011 document was signed by the deceased, the court inferred that the deceased did so to record his then thoughts without intending the document should have immediate operation as his Will.
Don’t leave your Will to chance and risk having your wishes go unfulfilled. At Everingham Solomons we have the expertise and experience to assist you in making a Will Because Helping You is Our Business.
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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.
As the holidays are upon us it is worthwhile remembering that for separated parents, the Family Law Act states that both parents have “equal shared parental responsibility” of their children, until such time that a court says otherwise.
“Equal shared parental responsibility” relates to parental responsibilities of children. It means that parents must make joint decisions about any major or long-term issues affecting their children. For instance where a child lives, and where they go to school, both constitute examples of long-term decision making. By law, both parents hold equal shared parental responsibility of their children.
There are some rare circumstances where one parent has sole parental responsibility for children however an order of the court would need to be made which effectively removes parental responsibility from the other parent. It may be the case that the risk to the child by one of the parents due to family violence or parental incapacity is such that the court may consider that only one parent should have parental responsibility for the child.
An example of where equal shared parental responsibility has been undermined, is where one parent covertly moves away from the other parent and they do not inform the other parent of the change in residence or change in school enrolment of the child. Clearly a decision made by one parent alone to relocate for whatever reason, is in breach of the presumption of “equal shared parental responsibly” which both parents hold.
Furthermore, it is also worth noting that despite the portrayal of bitter “custody disputes” in Hollywood movies and on television, parents do not have rights over their children nor does the court use language such as custody.
On the other hand however, children do have rights. Children have a right to a “meaningful relationship” with both of their parents if it is in the child’s best interests. Clearly if one parent relocates without the other parent’s knowledge or consent, the child’s right to having a meaningful relationship with both parents can be put at risk.
Parents should particularly consider how flippant or ill-considered decisions impact on their children’s long term happiness, welfare and stability and should seek to make decisions which are child focused rather than decisions which are convenient to that parent or which purposely seek to antagonise the other parent.
Parents should be practical and apply common sense when negotiating parenting agreements between them or engage solicitors to prepare parenting plans and consent orders following sound legal advice. Parents should avoid contested disputes wherever possible to prevent a child’s childhood from being spent in lengthy legal proceedings.
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
When individuals enter into a business arrangement, it is common for those persons to enter into a partnership agreement which regulates the conduct of their relationship.
The same cannot be said for shareholders and directors in a proprietary limited company which conducts a business.
It is recommended that shareholders and their directors should enter into a Shareholders Agreement which will regulate their conduct and set out their duties and responsibilities, much like a partnership agreement.
Such agreements usually specify that each shareholder has the ability to hire and fire their own directors.
They also set out arrangements regarding the conduct of meetings of the board of directors and general meetings, voting rights as well as the requirement to prepare annual financial statements and to make such information available to all shareholders.
There will be provisions regarding distribution of profits, how working capital is to be contributed and/or raised and a dispute resolution procedure.
Most importantly there will be provisions indicating how a shareholders shares are to be dealt with in the event that a party wishes to sell their shares or is required to leave the company.
If a shareholder or director is guilty of misconduct or breach of the shareholders duties or is simply not fulfilling their duties, do the other shareholders have a right to exclude that person as a shareholder and to buy their shares?
If yes, how is the outgoing shareholder’s shares to be valued for the purposes of the share transfer to the continuing shareholders?
If a person is retiring because of illness or disability, how is that outgoing shareholder’s shares valued and who has the right to acquire those shares?
Generally it is the remaining shareholders who have the first option to purchase an outgoing shareholders shares.
Another perplexing question is whether a defaulting outgoing shareholder should receive the same value for their shares as a shareholder who is simply retiring and has not committed a breach of the terms of the Shareholder Agreement.
I encourage you to ascertain whether you have a Shareholders Agreement and if you would like any additional information regarding such agreements, please contact me or one of our business lawyers because at Everingham Solomons Helping You is Our Business.
Increasingly more of us depend on the “on-line world” to communicate whether it be for business or pleasure or to stay connected with family and friends. Recently the Supreme Court of NSW considered whether a Computer Will left by the deceased before he died was intended to operate as his Will.
Prior to undergoing heart surgery, the deceased confided in his cousin that if anything should happen to him, he had made a Will and it was saved on his computer. When the deceased subsequently died widespread searches failed to locate a signed will amongst the deceased’s personal papers however 2 USB sticks were located. The data on the USB sticks was decrypted and an electronic document was discovered saved as “My Will”.
In NSW there are certain formalities that are required in order to make a valid Will. Failure to observe these formalities can lead to additional delay and expense to your estate.The Computer Document on its own did not satisfy the legal requirements for a valid Will because it wasn’t signed by the deceased in the presence of 2 independent witnesses. An application was made for the Computer Will to be declared as the deceased’s last Will. A Court can dispense with the legal requirements for the execution of a Will and uphold a document as a valid Will if the Court is satisfied that the deceased intended the document to form his Will. The issue to be determined was whether the deceased intended the Computer Document to operate as his Will.
The Court took into consideration the conversation the deceased had with his cousin before he died where the deceased alerted her to the location of his Will “should anything happen” to him and the content of the Computer Document itself. The Court found “The language used in the Computer Document is clearly language of testamentary intention. The deceased was careful to identify with precision those items that he had decided to “leave” to the named persons in the Computer Document” and provided reasons why family members were not named as beneficiaries in the document.
The Court was satisfied that when the deceased informed his cousin that he had made a Will and that it was encrypted and gave her the password, he intended the Computer Document to operate as his last Will.
Whilst ultimately the application was successful, it was not without associated difficulty and delay and uncertainty for the family and friends of the deceased coupled with considerable legal costs much of which could have been avoided if the deceased had consulted his Lawyer to make a Will. 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 Lesley McDonnell
The Mercury has risen, Paul Kelly is making gravy, Christmas is just around the corner and the Christmas parties are now in full swing.
Christmas parties for employers and employees provide a welcome relief from the day-to-day stress of being in business. It is an opportunity for employers to show their appreciation for the year’s hard work to their employees.
Both employers and employees should be wary however, that a Christmas party even if it is outside of office hours and at a different venue than the normal workplace is still defined as “in the course of employment”.
A recent decision in the Fair Work Commission saw an employee whilst behaving in an otherwise inappropriate and offensive way, did not constitute grounds for dismissal. The Member in that decision noted several reasons, the most notably being that the employer allowed unlimited alcohol consumption. In this case it was found that it was “entirely predictable that some individuals will consume an excessive amount and behave inappropriately”. One of the basis of this decision was it was contradictory for an employer to supply endless alcohol and then dismiss an employee as a result of behaviour affected by the endless supply of alcohol.
Employers can be liable for actions of their employees at work related events these include Christmas parties.
It is however, important to remember that Christmas parties are a time to enjoy your colleagues’ company in a more relaxed environment. In the spirit of the season Everingham Solomons provides a Do’s and Don’ts for both Employees and Employers for the Office Christmas Party Season;
Do’s
Turn up! Get to know your colleagues outside the office environment.
Choose your karaoke song wisely;
As alcohol will normally be served at office events, employers should organise travel arrangements, such as a taxi or courtesy bus to ensure their employees get home safely.
Ensure your staff are reminded that a Christmas party is a workplace event and the expectation is that behaviour will reflect this. A timely reminder to staff of any existing office policies and procedures, particularly in relation to sexual harassment and bullying would also be relevant.
Monitor your own behaviour this includes alcohol consumption
Enjoy yourself!
Don’ts
For employers if you receive a complaint post the Christmas party, take it seriously and investigate it as you would any other office incident.
Do not do something you know you would not be allowed to do in the office. Remember policies of your workplace apply.
Remember, the Christmas party is not the time to campaign for a pay rise!
Employees and employers should refrain from posting photos of the Christmas party and social media to avoid embarrassing pictures of themselves and colleagues entering the Twittersphere
The simple message for all is to enjoy yourselves in a responsible manner. Everingham Solomons wishes everyone a safe and Merry Christmas please don’t drink and drive. Helping You is Our Business.
The Australian Institute of Company Directors released its Director Sentiment Index for the second half of the year on 1 December 2016. One of the headline findings is that, despite greater global uncertainty, 34% of directors expect their business to increase both levels of staffing and investment. Business confidence among directors has increased by ten index points and is at its highest since 2013.
When a business increases its staffing levels, it also adjusts all manner of systems and processes. The risks to the business associated with its employees increase. At Everingham Solomons, we hold a comprehensive database of employment documents that can be tailored to the needs of your business to assist you to manage risks around the employer/employee relationship.
For example, we can set your business up with template engagement letters for casual, part time, full time, Modern Award and non-Award staff. We have a comprehensive and robust employment contract for managerial and professional staff. We can assist with agreements for your independent contractors as well.
You may be struggling for time to document your own policies and procedures for your business. We have over 50 template policy documents from which you can choose: Anti-Discrimination and EEO; Code of Conduct; First Aid; Internet Email and Computer Use; Personal Grievance; Work Health & Safety; Workplace Bullying, and so on.
When you need to write to your employees about various issues, you need to follow certain steps and use appropriate language. For example, in show cause or warning letters, letters for the recruitment process, letters regarding the taking of various forms of leave, and the like. We can provide you with a set of correspondence documents covering these matters and others.
We invite you to make an appointment for January 2017 to see us about your employment document needs and start the year on the right track. Everingham Solomons can tailor a document package for the needs of your business because Helping You is Our Business.
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A trust is a relationship between people (including companies) about property. One person, the trustee, holds the legal title to property for the benefit of other people, the beneficiaries. The trust itself is not a legal entity, rather just a set of accounts held by the trustee for the beneficiaries. Both the trustee and the beneficiaries may hold separate ‘personal’ property which is not subject to the trust relationship.
The development of the trust as a legal concept was all very chivalrous. About 600 years ago, before women were allowed to own property, men would go off on crusades, and bearing in mind they may never return, transferred the ownership in their property to another ‘trusted’ man to hold ‘on trust’ for their wife and infants.
Where a trust enters into commercial enterprise, the third-party deals only with the trustee. It can’t see the trust relationship or the beneficiaries. The trustee is liable to pay its debts but is entitled to reimburse itself out of the trust property for debts incurred for the beneficiaries.
As beneficiaries, people think they can’t be held liable for trust debts. They often think this because a limited liability company, acting as the trustee, stands between the beneficiaries and the debt.
That thinking however, has proven not always to be correct. In Ron Kingham Real Estate v Edgar, a corporate trustee controlled by Mr Edgar owed money to Ron Kingham. To prevent Ron Kingham being paid, Mr Edgar arranged for the corporate trustee to distribute all the trust property to the beneficiaries of the trust, predictably, Mr and Mrs Edgar.
The court found that the trustee was entitled to be reimbursed for the debt not only from the trust property (which had been depleted) but also from the assets held personally by Mr and Mrs Edgar. Through subrogation to that right, Ron Kingham was able to stand in the shoes of the corporate trustee and sue Mr and Mrs Edgar directly.
There are other decisions similar to the Ron Kingham case which are authority for the idea that the beneficiaries of all forms of trusts, including large investment trusts, can be held personally liable for trust debts.
If you have any queries relating to discretionary or fixed trusts, call Everingham Solomons Solicitors because Helping You is Our Business.
When marriages or de-facto relationships come to an end, it is suggested that parties finalise the financial and property matters between them.
The Family Court can make legally enforceable orders in respect of dividing the assets and liabilities of married and de-facto couples. There are also benefits of entering into orders including stamp duty exemptions and capital gains tax rollover relief when assets are transferred between parties.
The Court initially looks at the value of the parties’ assets and liabilities and then assesses the contributions made by the parties to the acquisition, maintenance and or improvement to those assets throughout the relationship.
Contributions may encompass direct financial contributions such as making mortgage repayments and indirect financial contributions such as working in an unpaid role in a family business. Non-financial contributions also include contributions made to the care of children and to the upkeep of the family home for instance.
After the court has considered the contributions made to the pool of assets, it may also consider if there are any special factors which might lend it to make an adjustment in one party’s favour. Examples include if one party cares full time for children, suffers from ill health, is older, or has no ability to work and earn income.
The court must be satisfied that any orders it makes in respect of financial matters, are fair and reasonable when considering all the facts and circumstances of the case.
The Family Court matter of Wah & Golah [2016] concerned a property settlement where the marriage lasted eight years but where the husband made overwhelming financial contributions at the commencement of the relationship and throughout the marriage.
At the time the matter was determined by the court, the asset pool of the parties was valued at $3.9 million.
At the commencement of cohabitation the husband owned two properties, shares, significant money in bank accounts, superannuation and motor vehicles. It was determined that the husband’s initial contributions totalled $2.4 million whilst the wife contributed just $280,000.
There were no children to the marriage. The wife was a full time homemaker and had minimal earning capacity at the commencement of the marriage.
Late in the marriage, the wife suffered a car accident which caused ongoing medical problems, but otherwise her earning capacity remained unchanged from the date of cohabitation.
The trial judge determined that the assets should be divided 87.5% to 12.5% in the husband’s favour. The wife appealed the primary judgment, seeking an adjustment due to her greater future needs, and the husband opposed an adjustment based on his significant financial contributions made to the marriage.
The Court of Appeal determined that it was just and equitable to maintain the division in the husband’s favour, but due to the wife’s ill-health and the likelihood that she would be unable to work in the future, the wife received an additional $786,000 in order to ensure that she could find appropriate accommodation and support herself in the future.
As you can see, regardless of initial financial contributions made by one party, the court must look at all financial and non-financial contributions and possibly other special factors including future needs when determining a property settlement.
At Everingham Solomons we have the expertise and experience to assist you with property law matters because Helping You is Our Business.
Too often people don’t devote the time they should to making a valid Will and keeping it up to date. Making a valid Will is one of the most important things a person can do to protect their loved ones. Once made, a Will should not be shoved to the back of a drawer and forgotten. Over time a Will needs to be reviewed and updated to reflect life changing events. You should seek professional advice to ensure your Will reflects your wishes and is in conformity with the law. The pitfalls of not doing so could mean an expensive court case as the following case demonstrates.
