Most people only seek legal advice for problems when they arise – when going through a divorce or after an accident for example. But what if your lawyer is like a best friend you didn’t know you needed?
If you consult a lawyer BEFORE a legal issue arises, they can help you anticipate and prevent serious legal problems, saving you a lot of money and heartache in the long run.
If you’ve never worked with a lawyer before, some common situations where getting legal advice from a lawyer may be necessary include:
• The sale or purchase of a house, property or business
• An accident involving personal injury or property damage
• A family problem such as divorce or a child custody dispute
• Workplace disputes including discrimination or harassment on the job
• When you are starting a business
• The drafting of a will, trust, or estate plan
So when should you talk to your solicitor? It is best to communicate with your conveyancer/solicitor as soon as you have decided to embark on a new venture.
For example if you plan to purchase a property – you should get your solicitor to review the contract before you sign it. Otherwise you may encounter problems of not completing the contract on time, or there may be disputes over inclusions which were not itemized on the contract prior to exchange. These and many other problems can be avoided if the purchaser consults with their conveyancer/solicitor from the very beginning.
Another example is when you are selling a property. By law you must have a contract of sale drafted BEFORE you market a property. A marketing contract is provided to your real estate agent for the purposes of advertising your property. However, if your property has been on the market for a long time or you choose to put the property up for auction. Before doing so, your marketing contract should be reviewed as there could have been legislation changes that affect the marketing contract. If the agent uses the outdated marketing contract as the auction contract and proceeds to auction. This can cause issues for the vendor allowing a purchaser to withdraw from the contract up to the time of settlement. This can have devastating consequences and costs for the vendor.
Another time that is especially critical to see your solicitor first is when purchasing a business. Once committed, it is very difficult or costly to change business entities if you have not selected the most tax-advantageous business structure. Related issues such as the transfer of employee entitlements again can be very costly if not adequately covered in the initial negotiations.
At Everingham Solomons, we have the expertise in Property Law, Business Law, Family Law, Wills and Estates to help you make the right decisions. The sooner you speak to us, the more we can help because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
Once Probate or Letters of Administration has been granted by the Court in a deceased Estate, and before any assets of the Estate are distributed, the legal personal representative (i.e. executor or administrator) of the Estate has the ability to publish a notice of intended distribution, in accordance with section 92 of the Probate and Administration Act 1898.
Where is the notice published?
On the NSW Online Registry for Courts and Tribunals.
What does the notice state?
The notice outlines the deceased’s details and, in brief, states that any person having any claim upon the Estate must send particulars of the claim to the legal representative within 30 days of publication of the notice. The notice further states that after the 30 days, and after 6 months from the date of death of the deceased, the legal representative intends to distribute the Estate having regard only to the claims of which the legal representative has notice at the time of distribution.
Why is the notice important?
The notice provides legal representatives with some protection in their capacity as legal representatives against claims made, in accordance with section 93 of the Succession Act 2006. A legal representative who properly distributes property of the Estate after publication of a notice of intended distribution will not be liable in respect of that distribution to any person who has a claim (for example, beneficiaries or next of kin seeking to make a family provision claim), unless the legal representative had notice of the claim at the time of the distribution.
Can the notice be published in an Estate where a Grant has not been obtained?
One of the disadvantages of administering an Estate without a Grant of Probate or Letters of Administration is that a notice of intended distribution is unable to be published. Whilst the size and nature of the assets of an Estate are commonly considered by the executor or proposed administrator when deciding whether to obtain a Grant, having the ability to publish a notice of intended distribution should also be considered by the executor or proposed administrator.
At Everingham Solomons, we have the expertise and experience to assist you in administering deceased Estates because Helping You Is Our Business.
Click here for more information on Jessica Wadwell
In my previous articles, I gave a short outline of Section 65Y of the Family Law Act which relates to the removal of a child subject to Family Law Court Orders from Australia. The penalties and preventative measures were discussed.
In some situations, such removal may have occurred before any preventative measures could be implemented. This is a both emotional, stressful time for a parent and members of an extended family.
Australia is one of over 100 signatories to an international law treaty which is referred to as the “Hague Convention on the Civil Aspects of International Child Abduction (1980)”.
This is the Convention which parents will be required to use if their child has been removed from Australia without their consent. Careful consideration needs to be considered prior to making an application for a child to be returned to Australia. Under the convention, the child requires to be under the age of 16. This differs to the Family Law Act which defines a “child” as a young person under the age of 18.
In order to make a successful application a number of elements must be satisfied, some of which are:
1. The child is under the age of 16 years.
2. The child was abducted or kept overseas for longer periods than agreed between its parent or guardian.
3. The country in which the child was removed is a signatory to the convention.
Such applications are made through a number of series of formal agencies such as:
1. The Federal Circuit and Family Court of Australia.
2. The Attorney General’s Department who, will appoint the Central Authority to assist in the return of the child.
If a parent is successful in its plea to the Attorney General to take action to return a child to this country, the Central Authority will make efforts to locate the child and return the child on an amicable basis. In some circumstances, when this cannot be done, the Central Authority may arrest the abductor and commence proceedings in a relevant Court system for the child to be returned.
In circumstances where a child has been taken from a non-signatory intervention country the process is very difficult. Countries which are non-signatories to the Hague are China (with the exception of Hong Kong and Macau), the Maldives, Vietnam, Vanuatu and Indonesia, just to name a few.
Readers may recall in 2016, an Australian mother and Channel Nine film crew were imprisoned in a non-signatory country after attempting to retrieve two Australian children who had been abducted by their father, in an attempt to return them to Australia.
At Everingham Solomons, we pride ourselves in being able to assist our clients in all aspects of matters associated with the Family Law Act. Everingham Solomons is where 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.
The Westpac Rescue Helicopter Service (WRHS) is proud to announce a new event partnership with Tamworth based Everingham Solomons Solicitors, as the law firm celebrates its 150th anniversary of serving the North West.
The partnership, with an investment of $20,000, will give five of the Service’s prestigious local events critical support, after two years of disrupted fundraising through the pandemic and natural disasters.
“We are excited in 2022 to be able to deliver our signature events again to the New England North West, as well as adding some new ones. This support from Everingham Solomons will play a valuable role in ensuring the Rescue Helicopter is ready to respond to those who need it in our region,” said WRHS Event Coordinator Jeff Galbraith.
Everingham Solomons Solicitors Director George Hoddle says the 150th anniversary provides the ideal opportunity to acknowledge an incredible milestone for the company whilst supporting a well-respected and trusted local charity.
“This year marks 150 years serving North West NSW since 1872. Charities and events have had a tough time in recent years so we really wanted to give back to the community as part of our anniversary celebration rather than hold a private function. The chance to support such an important charity that plays a vital role in the community made this the ideal scenario,” said Everingham Solomons Director George Hoddle.
“At Everingham Solomons, helping you is our business and this aligns perfectly with the Westpac Rescue Helicopter who help people in their greatest time of need. We look forward to supporting the Rescue Helicopter throughout the year,” Mr Hoddle announced.
The agreement will see the iconic Tamworth law firm sponsor a series of WRHS fundraising events across the New England North West region throughout 2022, including the Tamworth Rescue Ball, Golf Day, Charity Race Day, Ride for the Chopper and other regional events, with all funds raised supporting the Service’s Tamworth Base.
On 6 April 2022 the High Court handed down their decision, overturning the previous Supreme Court and Court of Appeal decision, of Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd.
Ms Tapp, who was 19 at the time, was competing in a campdrafting competition near Scone. There had already been two days of competition and Ms Tapp was competing at approximately 7pm on the second day. In the hour prior to Ms Tapp’s run, there had been four contestants fall and they had been described as “bad falls”. There were also two warnings provided by a fellow experienced contestant that the campdraft needed to be stopped as “the ground was getting a bit slippery”. The Committee did pause the event on two occasions and conferred with each other concluding that the riders would need to ride to the conditions and that the competition should proceed noting it would be unfair to stop as other competitors had already ridden on the current surface. It was accepted that the ground prior to Ms Tapp’s ride was identified “as being dangerous”. Ms Tapp then competed and was in the main arena when the front feet of the horse she was riding slipped on the ground of the arena causing the horse and Ms Tapp to fall, resulting in a serious spinal injury to Ms Tapp.
The High Court held by a majority 3/2, that the association had breached its duty, the breach caused the injury, and the injuries were not the result of an obvious risk of a dangerous recreational activity. Ms Tapp did not know about the earlier falls and had not inspected the track and therefore the risk of injury was not obvious to her. Ms Tapp’s injuries were not caused by her participation in a dangerous recreational activity, but rather it was caused by the dangerous surface of the arena, which was not obvious to a reasonable person. For all your legal needs contact Everingham Solomons because Helping You is Our Business.
Click here for more information on Libby Campbell.
During their lifetimes, the deceased and her late husband had a longstanding share farming arrangement with David “[T]heir aspiration to be able to enjoy an idyllic farming property depended upon their being able to secure the services of a farmer like David, who was prepared to work hard for very little income”. In 1988, after the death of her husband, the deceased represented to David that the farm was to pass to him upon her death, together with a sum of money. The deceased died in 2016. The deceased was survived by her 2 daughters Hilary and Jocelyn. At the time of her death, the deceased was the owner of the farm that she left by her will to Hilary and a bequest of $200,000 to David in her will.
David applied to the Court alleging that by leaving the farm to Hilary in her will rather than to him, the deceased had acted unconscionably in conflict with a promise that had been made to him by the deceased to the effect that the farm would one day be his, in return for David continuing throughout the deceased’s lifetime to conduct share farming on the farm. David claimed that he continued with the share farming agreement, and undertook additional tasks on the farm, in the expectation that the deceased would uphold the promise and leave the farm to him.
Proprietary estoppel by encouragement “comes into existence when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part”.
The Court was “satisfied that David acted on the faith of that assurance to his detriment by continuing the farming operation” on the farm “for about 23 years thereafter in the belief that he would inherit that property” under the deceased’s will. “The average income received by David was in the order of one third of the average annual total male income calculated on the basis of 2020 equivalent dollars”. The deceased ought to have known that part of David’s “motivation for continuing was the expectation that he would inherit the farm”. “In those circumstances, it was unconscionable” for the deceased “not to have left the farm to David in her will”. Accordingly, David established his case and was entitled to the farm.
A promise or representation made by a willmaker to another may be enforceable particularly when another person acts on the faith of a promise or representation to their own detriment believing they will inherit property. At Everingham Solomons we have the expertise and experience to advise you on your legal rights becauseHelping You is Our Business.
Click here for more information on Lesley McDonnell
But what if there isn’t a Will? Well… there still is a way, but it does become a bit trickier and more involved process for the relatives of the deceased person.
If a person dies without making a Will or if they make a Will, but it fails to dispose of all assets properly or there is no beneficiaries who have survived the testator, then that person is deemed to have died intestate.
The Succession Act 2006 (NSW) deals with intestacy and outlines the general rules for who will benefit from a person’s estate if they die intestate.
So who gets your things if you die without a Will?
That really depends on your situation. Generally speaking, if you have a spouse, they will be entitled to your estate. The exceptions are if you have more than one spouse or you have children from a previous relationship.
If you have more than one spouse, your spouses are entitled to equal distribution of your estate.
If you have children from a previous relationship, then your spouse will be entitled to your personal effects, a gift of $350,000.00 (adjusted by CPI) and half of the rest and residue of the estate. Your children will be entitled to the balance of the rest and residue to be shared between them equally.
If you do not have a spouse, the general order for entitlement is as follows:
Your children (but where a child has died and left children, their share will go to your grandchildren); and if none
Your parents; and if none
Your siblings (but where a sibling died and left children, their share will go to your nieces and nephews); and if none
Your grandparents; and if none
Your aunts and uncles; and if none
Your first cousins; and if none
The NSW Government.
If there is more than one beneficiary, then the share will be divided equally between them.
It is a common misconception that if you die without a Will, then the Government will receive all your assets. As you can see this is only true if the person who died had no immediate relatives that survived them.
Overall, it is much simpler for your relatives if you make a Will before you die because the process to administer an Estate of a person who died intestate is more complex and costly as the deceased did not give any person the authority to administer the Estate. This means that a grant of Letters of Administration must be sought so that there is someone with the authority to do the things necessary. More importantly, without a Will, your assets may not go to the people you wish to benefit.
If you would like to make a Will or have any questions about making a Will, please contact Everingham Solomons because Helping You is Our Business.
The type and size of the development will determine whether Council approval is required. Generally, minor development such as small decks or garden sheds are identified as exempt development and can be undertaken without Council approval. Development such as home additions will require Council approval. Prior to undertaking any development, you should seek Council or legal advice specific to your development.
How do I obtain Council approval of an unapproved structure?
The owner or an authorised third party can apply for a Building Information Certificate. This certificate is issued by Council and is confirmation that Council will not issue an order, or take proceedings for an order or injunction, for the repair, demolition, alteration, addition or rebuilding of the building. Applying for this certificate will require a survey report of the property and Council’s inspection of the structure. If Council refuses to issue the certificate, Council must notify the applicant setting out the reasons for its decision and the work required to be undertaken to permit a certificate to issue. Depending upon the type of work required, this may result in additional costs. Once issued, the certificate is for a period of seven (7) years and covers such matters which exist at the time of issue of the certificate.
Selling a property with an unapproved structure?
Vendors should discuss any unapproved structures on their property with their solicitor. This is due to the prescribed warranty under the Conveyancing (Sale of Land) Regulation 2017 that provides ‘the vendor warrants that, as at the date of the contract and except as disclosed in the contract … there is no matter in relation to any building or structure on the land … that would justify the making of any upgrading or demolition order’. A breach of this warranty by the vendor may result in the purchaser being permitted to rescind the Contract.
Purchasing a property?
Be alert to structures that require Council approval. Initially, you or your solicitor should make enquiries of the vendor to obtain copies of the Council approvals held. If the vendor does not hold approvals, Council records can be inspected with consent of the vendor. These records may take time to obtain, so parties should be conscious of potential delays.
Important reminder!
If you are planning to undertake development upon your property, check whether Council approval is required. If so, ensure all approvals are in place before works are commenced and the works are consistent with the development consent. Don’t forget to schedule the appropriate inspections during construction to obtain that final approval known as an occupation certificate.
Feeling overwhelmed by the process of obtaining Council approval? Contact the friendly and experienced team at Everingham Solomons, where Helping You is Our Business.
Click here for more information on Jessica Wadwell
New South Wales is the first state of Australia which has introduced Laws that makes it a criminal offence to cause the loss of an unborn child.
The legislation came into effect in late March and includes two new offences.
The first is a stand-alone offence which makes it a crime to cause the loss of a fetus. Previously, NSW laws only recognised the loss of an unborn child as an injury to the gestational parent. Now, there is a separate charge for the loss of a fetus.
This new law will be used in circumstances where the parent survives but loses an unborn child because of a crime being committed. This will now apply to a range of crimes including driving offences, bodily harm offences and the like.
This offence can carry a punishment of five (5) years to twenty-eight (28) years imprisonment, depending on the circumstances of the offence.
The second offence will be charged when a gestational parent is killed because of a crime. The punishment for this offence will be an additional three (3) years in prison (added to the sentence for killing the parent).
It is important to note that a person can only be charged with causing the loss of a fetus in circumstances where the fetus is at least 400g in weight or once the gestation period exceeds 20 weeks.
The new legislation also means that family members will also be able to submit victim impact statements to the Court addressing the loss of the unborn child. Victim impact statements are used by the Court when determining what sentence is appropriate for an offender.
The NSW Government have also announced a bereavement payment of $3,000.00 to be paid to the family of the victim/s if a person is charged with one of these offences.
For all your legal needs contact Everingham Solomons because Helping You is Our Business.
Most people only seek legal advice for problems when they arise – when going through a divorce or after an accident for example. But what if your lawyer is like a best friend you didn’t know you needed?
Once Probate or Letters of Administration has been granted by the Court in a deceased Estate, and before any assets of the Estate are distributed, the legal personal representative (i.e. executor or administrator) of the Estate has the ability to publish a notice of intended distribution, in accordance with section 92 of the Probate and Administration Act 1898.
In my previous articles, I gave a short outline of Section 65Y of the Family Law Act which relates to the removal of a child subject to Family Law Court Orders from Australia. The penalties and preventative measures were discussed.
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:
During their lifetimes, the deceased and her late husband had a longstanding share farming arrangement with David “[T]heir aspiration to be able to enjoy an idyllic farming property depended upon their being able to secure the services of a farmer like David, who was prepared to work hard for very little income”. In 1988, after the death of her husband, the deceased represented to David that the farm was to pass to him upon her death, together with a sum of money. The deceased died in 2016. The deceased was survived by her 2 daughters Hilary and Jocelyn. At the time of her death, the deceased was the owner of the farm that she left by her will to Hilary and a bequest of $200,000 to David in her will.
But what if there isn’t a Will? Well… there still is a way, but it does become a bit trickier and more involved process for the relatives of the deceased person.
New South Wales is the first state of Australia which has introduced Laws that makes it a criminal offence to cause the loss of an unborn child.