Yours, Mine and Ours

Lesley McDonnellPurchasing property can be both an exciting and daunting experience. Exciting because on the one hand you have found the property you have been searching for and you start dreaming of what you will do to transform the house into your home. In what can seem like the daunting side to your property purchase is the point at which you first lay eyes on the contract for sale of land. The contract requires you to make some important decisions. When you purchase property with your spouse or partner, you must decide how you will buy the property together. You can purchase either as joint tenants or as tenants in common. The distinction between the two is an important one because it can have an impact on future life events for example a relationship breakdown or death.

If you purchase property as joint tenants, this means that upon your death, your interest in the property automatically passes to your spouse/partner. This is despite any provision in your will to the contrary. This is because your interest in the property does not form part of your estate and it is not available for distribution to the beneficiaries of your will. Many married couples own property as joint tenants. Also a joint tenancy may exist where property is held in trust.

By contrast,  if you purchase as tenants in common, then your individual share in the property can be gifted in your will. Furthermore the respective shares in the property may be held equally (e.g. 50/50) or in some other proportion (e.g. 60/40, 75/25 or 80/20 etc). Sometimes couples may choose to own property as tenants in common if for example there are children from a previous marriage for whom they wish to make provision upon their death. Also investors often buy property together as tenants in common.

If property is owned as joint tenants there is a process by which that property holding can be unilaterally severed by one party. The other party is given notice of this before it occurs. There are circumstances where this can be an appropriate course of action.

Being aware of your options can assist you in making a more informed choice when it comes to buying your next property. At Everingham Solomons we have the experience to assist you with all your property needs because Helping You is Our Business.

Click here for more information on Lesley McDonnell

Proposed changes to laws governing Swimming Pools

Lesley McDonnellWith the summer months fast approaching, attention is once again turning to the use of backyard swimming pools. Following a series of inquests into swimming pool deaths, recommendations have been made to improve pool safety around swimming pools. Last month the Swimming Pools Amendment Bill 2012 was introduced into Parliament. The amendments sought to be made to current legislation are designed to address the high rate of non-compliance with swimming pool barriers. Possible changes to the current legislation centre around the requirement for private swimming pools to be registered, self certification of pools and an inspection program.

The proposed amendments will require pool owners to self-register their pool, free of charge, on a statewide online register.  Pool owners will be required to self-assess that their pool complies with the requirements. The registration process will involve pool owners using a checklist to help them identify defects in swimming pool barriers and to take the necessary remedial steps to make their pool barriers compliant. Research has shown that even simple defects such as gates that do not self-close or gaps under fences can lead to tragedy when a child is able to gain access to a unsupervised pool.

The registration and self-assessment checklist has been formulated to raise awareness of pool safety and to ensure that pool owners take responsibility to make their pool barriers compliant. The steps taken to make a pool compliant today could save the life of a child tomorrow.

The proposed changes also seek to amend conveyancing and residential lease legislation to require vendors and landlords to have a valid swimming pool compliance certificate before selling or leasing their premises

It is proposed that there will be an 18 month phase-in period to permit landlords and property owners sufficient time to comply with the new requirements if the Bill is enacted.

Additionally, it is proposed that Councils will be required to develop locally tailored risk-based inspection programs in consultation with local communities. The Bill seeks to impose mandatory inspections to be carried out on pools associated with tourist and visitor accommodation due to the increased exposure of those pools to members of the public.

At Everingham Solomons, we have the expertise to assist you with all aspects of your sale, purchase and leasing of property because Helping You is Our Business.

Click here for more information on Lesley McDonnell

Planning for the Future for family members with a disability

Lesley McDonnellFor some families, caring for a son or daughter with a severe disability is part of everyday life. For parents of a child with a severe disability, discussion will  inevitably turn to the issue of what happens when those parents are no longer able to provide support for that child? Quite often parents will want to make provision for their child without affecting their child’s entitlement to an income support payment. For some parents the answer may lie in setting up a Special Disability Trust for their child.

A Special Disability Trust can be set up while parents are alive or in their Wills.

The purpose of a Special Disability Trust is to meet the reasonable care and accommodation needs of the principal beneficiary, for example a child with a severe disability, during the lifetime of the beneficiary. A Special Disability Trust may also financially benefit the principal beneficiary under the Centrelink assets test.

Before a Special Disability Trust can be set up, the principal beneficiary must fall within the definition of ‘severe disability’. Section 1209M of the Social Security Act 1991 sets out the definition of ‘severe disability’.

Due to the fact that Centrelink assesses whether or not a trust is a Special Disability Trust, it is very important to ensure that the Trust strictly complies with legislative requirements. To this end a model trust deed exists which contains the necessary clauses required for the trust to be classified as a Special Disability Trust.

A Special Disability Trust can have assets up to the value of $596,500 (indexed annually, and current as at 1 July 2012) (“the limit”) plus a residence held in the trust without these assets impacting on the principal beneficiary’s income support payment.

Where the assets of a Special Disability Trust exceed the limit, the amount in excess of the limit will be counted as assessable assets for the principal beneficiary and will be assessed against the relevant assets test threshold.

For the parents, a one off gifting concession may apply to a gift of up to $500,000 if the parent is a recipient of a social security pension and has reached the qualifying age, or receives a service pension and has reached veterans’ pension age, or receives a veterans’ income support supplement and has reached the qualifying age for the payment. Gifts in excess of the gifting concession are assessed under the normal gifting rules.

If you are considering making provision for a family member with a severe disability, it is important to obtain specialist legal advice. 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

Unveiling a Treasure Chest for First Home Buyers

Lesley McDonnellThe NSW Treasurer has announced changes to State taxes and grants which are being heralded as “the most generous scheme in Australia”. Let us examine three key changes.

Firstly, from 1 July 2012, the New Home Grant of $5,000 will be provided to buyers of new homes, whether off the plan or newly built, up to the value of $650,000. The same grant will be available to buyers of vacant land up to the value of $450,000 upon which a new home is to be built. This incentive is open to non-first home buyers and investors alike.

A new home is a home that has not been previously occupied or sold as a place of residence, and includes a home that is a substantially renovated home.

Secondly, from 1 October 2012 a newly named First Home Owner Grant (New Home) Scheme will be introduced for first home buyers who purchase or build a new home. It will replace the current $7,000 First Home Owner Grant from 1 October 2012. The grant of $15,000 applies to contracts signed on or after 1 October 2012 to 31 December 2013. The grant will then be reduced to $10,000 as and from 1 January 2014. The new scheme will apply to first home buyers who purchase or build a new home valued up to $650,000.

Thirdly, from 1 July 2012 the First Home—New Home scheme provides eligible purchasers with exemptions on stamp duty for new homes valued up to $550,000 and concessions on stamp duty for new homes valued between $550,000 and $650,000. The same exemption will be available to buyers of vacant land up to the value of $350,000 and concessions on duty will be available for purchasers of vacant land valued between $350,000 and $450,000 who intend to build a new home on the site.

Importantly First Home—New Home exemptions or concessions do not apply to the purchase of an existing dwelling.

Also, if you are eligible for a stamp duty exemption/concession under the First Home – New Home Scheme, you cannot receive the $5,000 New Home Grant.

Furthermore, if you are eligible for a First Home Owner Grant, you cannot receive the $5,000 New Home Grant for the same property.

If you are considering buying a new home or vacant land to build your new home on, our experienced property team can help answer all of your questions, because Helping You is Our Business.

Click here for more information on Lesley McDonnell

Will I, or won’t I?

Lesley McDonnellMaking a Will is one of the most important things a person can do during their lifetime. Like many things in life though preparation is the key and very often people fail to take the time to put in place a Will that carries out their wishes.  An integral part of making a will should include seeking legal advice. Why? The reason is simple. Whilst the law recognizes a person’s right to decide who inherits their estate, the law equally recognizes a person’s right to contest or challenge a will. Also failing to make a will at all can be a time-consuming and expensive process for family members that can be avoided if an up-to-date will is in place.

There are often genuine reasons why a person should contest a will. For example a will made out of spite can have devastating effects for a family. Likewise a will that is so far out of date that it fails to take into account the person’s true circumstances at the time they die can have similarly devastating consequences for an already grieving family.

Typically a will may be challenged on two grounds. Firstly, because a person has been left out of will or unfairly provided for in a will. Or secondly, because the person who died left a will in which they did not have the mental capacity to understand what he or she was signing.

There are strict time limits that apply for challenging a will and it is essential that legal advice is sought.

Whether you are a person seeking to make a claim against another person’s will, or the executor named in a will, or a person needing to make a will, obtaining legal advice is essential.

At Everingham Solomons we have the expertise and experience to assist you with your Estate Planning needs and claims for a more equitable share in a person’s estate. We can work with you to identify the legal issues relevant to your situation and advise you of the options available so you can make an informed decision that’s right for you, because  Helping You is Our Business.

Click here for more information on Lesley McDonnell

Your New Years Resolution: Plan your Estate

Lesley McDonnellAs the year draws to a close, it is timely to commit to new goals for the coming year. As you spend time with family and loved ones this Christmas, we encourage you to consider estate planning as one of your goals for the coming year.

This could mean one of two things. It could mean making a will for the first time which is tailored to suit your personal and financial circumstances. Or updating your current will in case your circumstances have changed since the last time you made your will.

One recent case serves as a timely reminder that just as life does not standstill nor should your will be locked away in a drawer and forgotten.  Your will needs to be reviewed and updated regularly to ensure it carries out your wishes.

The Deceased made a Will in 1959. She died some 40 years later. The estate of the deceased consisted principally of a house and a bank account.

The applicant in this case was the grandson of the deceased (the Plaintiff).

There was a very good relationship between the Plaintiff and his grandmother.

Having been left out of his grandmother’s will, the plaintiff claimed that for a period of twelve years he resided in the same house as the Deceased, that for at least the last four years of her life he was the principal carer of the Deceased, looking after every aspect of her daily routine, recognised by him receiving a carer’s pension. It was submitted that that care was undertaken at a considerable sacrifice to the Plaintiff, who has been subsequently disadvantaged. Further, that in consequence of the efforts and activities of the Plaintiff there was a substantial contribution by him to the conservation of the assets which comprise the estate of the Deceased. The Plaintiff submitted that those contributions to the personal and financial welfare of the Deceased were such as would cause him to be generally regarded as a natural object of the testamentary recognition of the Deceased.

Taking into account all of the circumstances of the case, the Court agreed.

In so doing the Court emphasised that an order for provision is not made as a reward for good conduct. Neither is such an order withheld as punishment for perceived bad conduct on the part of an applicant.

As one of your goals for 2012, we encourage you to put your affairs in order for the benefit of your loved ones and for your own peace of mind. At Everingham Solomons we have the expertise to assist you with all matters relating to Estate Planning, because Helping You is Our Business.

Click here for more information on Lesley McDonnell

Women in Business

Lesley McDonnellOn Wednesday 26 October, Eversols in conjunction with the NAB are hosting a Women in Business fundraising event in support of Frocktober at the Forum 6.

As the event will be in support of Frocktober, we are inviting female professionals to leave behind their boring suits and office attire and to glam up old Hollywood style for a special screening of “High Society” starring Grace Kelly.

Ladies this is your opportunity to put on a dress and if you are more daring to channel the glamour of a foregone era in a 1950s Hollywood inspired dress, and come along and participate in a quality networking event with fellow business women and professionals.

The movie intermission will feature an auction of various exciting items including an auction of male working bees who will visit the successful bidders home to attend to a hive of outside chores all in a bid to raise funds for Ovarian Cancer Research.

The aim of the evening is twofold. Firstly, the event will provide a forum for female professionals to meet, network and enjoy what promises to be a very entertaining evening. Secondly the event is in support of Frocktober which seeks to raise funds for Ovarian Cancer Research and for good reason, with an average of 3 women being diagnosed with Ovarian Cancer each day.

To reserve your spot in the next Women in Business event:

Date:                           Wednesday 26 October 2011

Time:                          6pm to 9pm

Venue:                        Forum 6 (Cinema 3)

Ticket Price:              $25 per person

RSVP:                        21 October 2011 by registering on

www.eversol.com.au/pages/firm/Seminars.html

And remember to invite friends and colleagues to join you to celebrate in style an evening of Women in Business in support of Frocktober.

Click here for more information on Lesley McDonnell

Make sure the contract you sign is worth the paper its written on

Lesley McDonnellA recent case in the NSW Supreme Court provides a timely reminder of the potential problems that can be encountered if a Contract does not spell out all of the terms agreed upon by the parties. In this case the irrigated farming land sold recorded the sale of the land but was silent in relation to the water entitlements.

The Walsh family had farmed irrigated land since the 1950s. Family members were involved together in farming partnerships until 2000 when it was decided that those partnerships would be dissolved and the irrigated farming land would be sold.

Prior to selling the land, Graham and Maurice were co-owners of the farm. By Contract for Sale of Land, Graham sold his interest in the farm to Maurice. At the time of this sale Graham and Maurice also jointly held shares in the water entitlements used to irrigate the farming land. Both Graham and Maurice treated Graham’s interest in the water entitlements as having been transferred with the land. However following the sale of land, it was discovered that the water entitlements had not been transferred to Maurice and there was no express reference to the transfer of water entitlements in the Contract.

Maurice claimed that the Contract transferred the water entitlements from Graham to Maurice at the same time as the title to the farm was conveyed between them.

Graham claimed that he still held a half interest in the water entitlements.

Ultimately the court found in favour of Maurice that Graham held his interest in the water entitlements in trust for Maurice, who was then entitled to an order for the transfer of that interest to him.

Whilst a favourable result was achieved for Maurice in the end, it was a time-consuming and stressful process for Maurice to undergo. A lot of turmoil can be avoided by ensuring that matters are not left to chance and the terms of your agreement are clearly recorded in the Contract before you sign it.

At Everingham Solomons, we have the expertise to assist you with all aspects of your sale or purchase of land because Helping You is Our Business.

Click here for more information on Lesley McDonnell

Purchasing at auction? Plan today to avoid a nightmare tomorrow

Lesley McDonnellWhether you are buying your first home, or relocating, purchasing property can be daunting.  If you are considering buying at auction then the experience can seem all the more confronting. The experience need not be a daunting one as long as do your homework. To assist you, the following information may provide some guidance as to what to expect and how best to prepare for the big day.

An auction provides the venue through which buyers and sellers come together to permit interested buyers to make bids on property they wish to purchase. If you are the successful bidder at an auction, you will be required to sign the Contract and pay your deposit then and there.  Most importantly, if you buy at an auction, you are immediately bound by the terms of the contract. It is for this reason that you need to attend an auction well prepared.

Being prepared means, at the very least, thinking about the following:

  • A couple of weeks before the auction, ask the real estate agent for a copy of the contract.  You should then take the contract along to your solicitor and have them explain the terms of the contract to you to ensure that you know what you are purchasing before committing yourself at auction.
  • Next, you should consider whether you wish to obtain pest and building reports for the property. If you find termites after the auction, it may be too late to do anything because your rights to claim compensation are very limited.
  • If you are borrowing money to finance your purchase, it is crucial that you make sure you have formal finance approval in writing from your lender.  If you purchase a property at auction without formal finance approval and there is a hiccup in getting your finance before settlement, then you risk losing your 10% deposit and the property.  You also need to speak to your lender about arranging to have a deposit ready to hand over on the day of the auction.

On the day of the auction, the real estate agent will provide you with a bidder’s guide. This guide contains important information for would-be purchasers intending to bid at an auction. One final tip would be to attend an auction or two as a spectator to familiarise yourself with the auction process.

At Everingham Solomons we can help answer all your questions about buying or selling your property at auction because Helping You is Our Business.

Click here for more information on Lesley McDonnell