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.
A landlord of a residential premises is permitted to sell their property even while it is currently being occupied by a tenant. However, the landlord must comply with certain requirements of the Residential Tenancies Act 2010 (NSW) to prevent interfering with the tenant’s right of occupation of the property.
The landlord is required to provided notice of the sale of the property to the tenant. The notice must be given by the landlord, or their real estate agent, to the tenant at least 14 days before any potential purchasers are allowed to inspect the property. If this preliminary notice is not given to the tenant, the landlord has no right to access the property for the purposes of conducting an open house or allowing potential purchasers to inspect the property.
If the notice is provided to the tenant, then both the landlord and tenant must come to an agreement as to the days and times that the property will be available for inspection by potential purchasers. The tenant must not unreasonably refuse to make the property available for inspections; but, they are also not required to agree to allow more that two inspections a week. As long as proposed inspection times are reasonable, i.e. during daylight hours and not schedule for an excessive period of time, then there are no further requirements that the landlord must observe. It is up to both the tenant and landlord to reach an agreement that works for both parties.
If you require further assistance regarding any tenancy issues or advice in relation to the sale of your property, then contact a solicitor at Everingham Solomons because Helping You is Our Business.
One of the most important things to consider when making a Will is who you wish to appoint as your executor. Your solicitor will discuss appointments of executors with you but there are a couple of issues to consider before giving instructions to prepare your Will, including:
Capability – The executor’s job is to manage your estate, call in, sell and distribute your assets, and pay any debts and liabilities. If you are leaving gifts in your Will to children who have not attained the age of majority, your executor will have to invest your assets and manage the estate for many years. Therefore, you need an executor who is up to the job. They need to be organised and trustworthy. They also need to be comfortable managing, investing or selling your assets, or at least able to adequately instruct a solicitor or financial advisor on these issues.
Number of Executors – You should really have at least two executors appointed in some capacity; that way, if one is unable to act, you have a backup. You can appoint a primary executor and a substitute who can only act if the first is unable. Or you may wish to appoint multiple joint executors who must work together. If you appoint joint executors they need to get along with each other to facilitate the administration of your estate. You do not want to create a situation where disputes arise between your executors.
Location – If you appoint executors who live across multiple states, or executors who live overseas, the management of the estate can be a lot more difficult. Issues with the location of executors often arises when signing Probate documents and documents to authorise the distribution of the estate assets. All executors need to sign the original Probate documents and all executors need to have their signatures witnessed by a Justice of the Peace or solicitor. If there are many executors spread out across the country it can take much longer to finalise the estate.
Practicality – Primarily, the executor needs to be someone that knows enough about your assets and financial affairs to be able to provide this information to a solicitor.
It may also be practical to appoint an executor who is a beneficiary of your estate and is motivated to start the administration process and follow it through to distribution. In other instances it may be more practical to appoint someone who will not benefit from your estate and can remain completely impartial. This may be necessary if your Will gives some discretion to your executors as to how to divide a particular asset between your beneficiaries or the beneficiaries don’t get along with each other.
If you need assistance drafting a Will or wish to discuss appropriate executors to appoint, contact a solicitor at Everingham Solomons because Helping You is Our Business.
Purchasing a property at auction has different challenges to buying through a negotiated sale. Many purchasers can find the experience daunting, especially if they are attending an auction for their first property purchase. These are some things you should know before attending any auction:
1. There is no cooling-off period if you buy a property at auction. This means that if you are the highest bidder at the auction you will then have to sign a contract for the purchase on the same day. This makes the purchase binding and you cannot pull out of the contract if you change your mind about buying the property.
2. It is important to speak with a banker or mortgage broker well before attending the auction to obtain preliminary finance approval and ensure you are able to borrow enough to complete the purchase. You will generally have a 6 week settlement period after the auction and you will then be required to complete the settlement and pay the balance of the purchase price. If you don’t begin to organise finance approval until after the auction it is unlikely that your loan will be approved in time and you risk being in default under the contract.
3. In addition to organising finance approval with a bank you need to have enough funds on the day of auction to pay the deposit. A deposit is usually 10% of the purchase price which you will be required to transfer to the real estate agent upon signing the contract immediately after the auction.
4. Before the auction you need to complete all of your own inspections and enquiries about the property so that you are satisfied that it is in an acceptable condition. If you wish to organised pest and building inspections, you should do this well before the auction date. If the pest and building reports reveal hidden damage or termite infestation you will not be able to get out of the contract after signing the contract at auction.
5. Importantly, you should request a copy of the contract as soon as possible from the real estate agent and ask your solicitor to review the contract before the auction. If you are successful at auction you will be bound by whatever conditions are in the contract so it is important to seek advice beforehand. Your solicitor will ensure the contract is fair and complete and will be able to negotiate conditions that you may require in the contract. They can also provide advice as to whether the property will actually be suitable for the purpose you intend to use if for, i.e. will you be able to build a pool in the back yard? Is the property able to be subdivided? What sort of businesses are permitted to be operated on the property?
If you need further advice in relation to any property transactions or you require a solicitor to review a contract before auction, contact a solicitor at Everingham Solomons because Helping You is Our Business.
A Power of Attorney (POA) and Appointment of Enduring Guardian (AEG) are documents that allow you to appoint another person to make major decisions on your behalf, usually when you do not have capacity to make such decisions yourself.
While these are very useful and practical documents to have, many people do not have a POA or AEG. So what happens if a family member or someone you know loses capacity to make decisions in their own best interests without having a POA and AEG in place?
For small decisions it is usually fine for close family members or carers to act informally on behalf of the person that does not have capacity. However, they do not have authority act on that person’s behalf to make major decisions; such as if they needed to sell their house or dispose of other assets, make decisions in relation to the medical treatment that person receives or give consent for them to be cared for in an institution.
In order to legally make decisions on behalf of someone that does not have capacity and does not have a POA or AEG you must make an application to the NSW Civil and Administrative Tribunal (NCAT).
An application for a Financial Management Order is required when you need to make financial or legal decisions on behalf of someone else and an application for a Guardianship Order is required to make medical and lifestyle decisions.
These applications require you to provide information about yourself, the person you are making the application for and any other family member or persons who may be affected if the orders are granted. You will also be required to provide details of why you are making the application and evidence that the person you are making the application on behalf of, no longer has capacity to make decisions in their own best interests.
Once the application has been received by NCAT you will receive a hearing date. Usually, both the person or people making the application and the person whom the application is made for are required to attend the hearing. At the hearing, the application will be considered and the Tribunal Members will want to hear evidence from the person making the application as well as any other significant person, which may include family members or treating doctors of the person that no longer has capacity.
This will allow the Tribunal to decide if the desired order should be made, and if so, who the best person or people are to grant the order to. Simply submitting the application to NACT does not guarantee that such an order will be made in your favour to make decisions on behalf of the person who does not have capacity.
If you need assistance or advice regarding Financial Management Orders or Guardianship Orders or wish to submit an application to the NCAT office in Tamworth, contact a solicitor at Everingham Solomons because Helping You is Our Business.
A Binding Death Benefit Nomination (BDBN) is a document that allows you to decide who will receive a benefit from any Superannuation you have accrued at the time of your death. Making a BDBN is an essential part of estate planning. A lot of people are not aware that their superannuation will not automatically be distributed through their Will. If you have seen a solicitor to create or update your Will, it is also worthwhile making a BDBN.
There are three main traps to look out for when making a Binding Death Benefit Nomination:
1. Make sure the nomination you have made is in fact binding. Superfunds will often offer binding and non-binding options. If you only have a non-binding nomination your superfund is not bound to follow your directions and they can use their discretion to decide how your superannuation is divided among your family. If you want to take the decision out of the hands of your superfund and ensure your wishes are followed, check the type of nomination you have made to confirm that it is binding.
2. The second trap of BDBNs is that they often lapse every three years. Some superfunds do offer non-lapsing nominations that are also binding. However, just like making a Will, your BDBN also needs to be reviewed every few years. A Binding Death Benefit Nomination that has expired is not enforceable, so it is important that you actively review the nomination and keep it up to date.
3. Not everyone is eligible to be nominated as a beneficiary of your superannuation. You can only nominate someone that is:
a. a dependant;
b. someone who is in an interdependent relationship with you (such as a partner or spouse);
c. your children, including:
i. stepchildren (provided the relationship between the child and their natural parent is not severed by death or divorce);
ii. adopted children; and
iii. adult children; or
d. your legal personal representative (such as the executor of your Will)
If you nominate your legal personal representative your superannuation will be directed to your executor(s) who must distribute it in accordance with your Will. This is the only way to direct your superannuation to someone that does not fall into one of the above categories.
When you make your BDBN your superfund will not know if the people you have nominated fit into one of these categories and will automatically assume you have made a valid nomination. Only once the BDBN comes into effect will the superfund consider your nominations. Anyone nominated that does not come under one of the above categories cannot receive a benefit from your superannuation and your nomination will be invalid.
If you need assistance or advice regarding Binding Death Benefit Nominations or other estate planning issues contact a solicitor at Everingham Solomons because Helping You is Our Business.
Saving money to buy property, or even pay a deposit, can be very difficult especially when buying property for the first time. Fortunately, the government is currently offering a number of grants and schemes that can make it a little easier.
First Home Buyer Assistance Scheme
The First Home Buyer Assistance Scheme provides an exemption for first home buyers from having to pay stamp duty on their purchase. The requirement to pay stamp duty is completely waived for first home buyers purchasing a new or existing home for $650,000 or less or buying vacant land for $350,000 or less. A first home buyer may still be eligible for a partial exemption it the value of the property exceeds these amounts.
To be eligible for the scheme you and your spouse must never have owned any interest is residential property in Australia and at least one of the first home buyers making the application must be an Australian citizen or permanent resident. There is also an additional requirement that you must live in the property for 6 months within the first 12 months of buying the property.
First Home Buyer Deposit Scheme
An additional expense for first home buyers is lenders mortgage insurance (LMI). LMI can cost thousands of dollars and is required to be paid by first home buyers that have less than a 20% deposit saved to purchase a property. Under the First Home Buyer Deposit Scheme, eligible people only need to have a 5% deposit saved and the government will guarantee the remaining 15%.
However, there are currently only 10,000 places available between 1 July 2021 and 30 June 2022 for first home buyers to qualify for this scheme. You must also be an Australian citizen and have a taxable income of less than $125,000 for an individual or $200,000 for couples to be eligible. This scheme is not available for individuals with permanent residency status in Australia.
First Home Super Saving Scheme
The First Home Super Saving Scheme allows first home buyers to release funds from their superannuation to buy property. The benefit of this scheme is that purchasers can draw from their superannuation to help fund their purchase or pay a deposit. It also makes it easier to save for a deposit as funds put straight into your superannuation are usually taxed at a lower rate than income tax.
Importantly, only voluntary contributions you have made to your super fund can be released under this scheme. Super contributions made by your employer cannot be released. You can also only release up to $15,000 of voluntary contributions you have made from any one financial year. The total amount of voluntary contributions that can be released is capped at $30,000.
If you need any assistance with purchasing your first property, or any other property transactions, please contact a solicitor or conveyancer at Everingham Solomons because Helping You is Our Business.
I began working at Everingham Solomons in 2019 as a legal administrator and have recently began a new role as a solicitor working in the property department.
I graduated from the University of New England in 2019 with a Bachelor of Business (Financial Management) and Bachelor of Laws. In 2021 I also obtained a Graduate Diploma of Legal Practice from the College of Law and was admitted as a Solicitor to the Supreme Court of New South Wales.
While working as a legal administrator and paralegal at Everingham Solomons I gained experience working across a number of fields including: workers compensation; property and conveyancing matters and; wills and estate planning. I have now joined Everingham Solomons’ experienced property team to provide legal services in conveyancing, leasing and estate planning matters.
Before moving to Tamworth I grew up in Inverell, in the northern New England area. In my spare time I am an avid reader of anything fiction as well as political biographies and commentaries and also enjoy watching movies.
I am excited to have the opportunity to continue my professional career as a solicitor at Everingham Solomons and provide excellent legal services to the region, 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.