Have you been left out of the ‘Will’ of a loved one, or do you feel as if the gift left to you is inadequate? Unfortunately, this is a relatively common story.
The law has responded to this by allowing eligible individuals to make a Family Provision Claim under the Succession Act 2006 (NSW). The Act defines an eligible person to include, a spouse of the deceased person, a de facto partner, a child of the deceased, a former spouse, the deceased persons grandchild, or a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death. For more information regarding who can make a Family Provision Claim, click here to visit our previous article.
Despite children of the deceased persons being specifically included under the statute, adult children still face difficulty when making a claim.
Take, for example, the recent case of Olsen v Olsen [2019]. Here, a 61-year-old adult son made a claim for provision from the estate of his late Father, after his Father failed to include him in his Will. At the end of his life, Olsen’s Father had left his entire estate to his second wife, and their three children. Unfortunately, no provision was made for the plaintiff. Mr Olsen claimed that he was an entitled person under the statute and provisions should therefore be made for him from his Father’s estate. The Court rejected Mr Olsen’s claim, ultimately finding that Mr Olsen was ‘able to maintain and support himself’ and thus, intervention by the Court was not warranted.
There is thus the prevailing question, when can an individual make a claim for provision? According to section 59 of the Succession Act 2006 (NSW), the Court may make a family provision order in favour of an eligible person, where the Court deems it necessary for that person’s proper maintenance, education or advancement in life or if the court finds that person to be have been an dependant or if the deceased led that person to believe that he or she would be left with a portion of the deceased’s estate.
If you know someone having a possible right to an estate or hasn’t been included in someone’s will, please do not hesitate to contact Freedman and Gopalan on 8917 8700 or by filling out the enquiry box.
Has someone failed to pay money that is owed to you?
Here is what you could do;
- You attempt to communicate with the debtor in order to understand why the debt has not been paid.
- You send an email letting the debtor know that you would initiate legal proceedings.
- Even after giving the debtor sufficient time, the debtor has not paid the money owed to you then you proceed to contact a law firm and instruct them to proceed further
- The law firm will then issue a “Letter of Demand” advising the debtor that legal proceedings will commence if the debt is not paid within a given time limit.
- If the debt is not further paid, then, we need to determine the jurisdiction in which you need to commence proceedings. The Local Court determines matters where the money owed is not more than $100,000. The Local Court has two divisions,
- The Small Claims Division which hears claims upto 10,000;
- The General Division which hears claims over $10,000 only upto $100,000.
- The District Court can hear matters up to $750,000 and the Supreme Court determines debt recovery matter of higher amounts. Each court has their own specific procedures and court rules that apply.
- To commence legal proceedings, a Statement of Claim is to be filed and served on the debtor.
- The debtor has to file a Defence within 28 days of the date of service of Statement of Claim.
- In the event a Defence is not filed by the Debtor within 28 days, a ‘Default Judgement’ can be entered against the debtor.
- If a Defence is filed then the matter may be listed for a Pre-trial review or Callover in Local court and an attempt is made to resolve the matter between parties, before the matter is listed for a hearing.
- If the matter is still not resolved and the matter is listed for Hearing a timetable will be set for the filing of evidence, affidavits, expert reports etc.
- And then a Judgement will be made by an Assesor or an Arbitrator or a Judge after scrutiny of the Affidavits, evidences filed, expert reports etc.
- Unfortunately, in some circumstances even when Judgment has been obtained the Defendant may refuse to pay.
- You should send the Judgment Debtor an Examination Notice Form to complete and provide you the same, along with any documents to be able to ascertain the debtor’s ability to pay. Then you may be able to get the sheriff to seize and sell.
- If they fail to return the completed form and documents, you can have the matter set down for an Examination Hearing by filing and serving an Examination Order.
- If the Judgment Debtor fails to attend, then a warrant can be issued for their arrest.
- You then also have the option to commence Bankruptcy or Winding up proceedings depending on the size of your debt amount and who your debtor is.
If Freedman and Gopalan can be of any assistance, please do not hesitate to contact us on 02 8917 8700, or by filling out the enquiry form on this page.
What is a De Facto Relationship?
According to the Family Law Act 1975, a de facto relationship exists when two parties have been living together on a genuine domestic basis. A relationship is not a de facto relationship if, however, any of the parties is legally married to one another or if they are related by family.
Binding Financial Agreement
For individuals considering entering a serious de facto relationship, it is important to understand the implications of such an arrangement. It may be worthwhile to discuss any financial or relevant issues with your partner.
We would also highly recommend for you to consider arranging a formal Binding Financial Agreement (commonly known as a ‘pre-nup’). This will safeguard your assets in the event that the relationship breakdowns, and you will need to organise the assets accordingly. Our team can assist you in deciding whether a pre-nup is right for you and can help you prepare the documentation.
Property Settlement and Maintenance after the Relationship has broken down
In order to make a claim for property settlement or maintenance to be made with respect to a de facto relationship, the court considers the following: -
- That the period of the de facto relationship is at least 2 years;
- That there is a child of the de facto relationship;
- That the relationship is or was registered under a prescribed law of a State or Territory.
- That significant contributions were being made by one party and the failure to make an order would result in a serious injustice.
In the event that your de facto relationship breaks down, it is imperative that you understand your entitlements from the relationship.
Please do not hesitate to contact us to discuss your rights on 02 8917 8700 or fill out the enquiry box, and we will get back to you ASAP.
Separation is often a ‘catastrophic loss’ to either one or both parties. Adjusting to separation presents complications on many levels, such as self-esteem issues, financial security, friendships, loss of a family unit and the transition to living alone.
One party may be ‘blindsided’ by the separation when they find their partner/Wife/Husband has left a note on the kitchen bench stating that they have had enough of the marriage/relationship, left the family home to their parents and have also taken the kids.
Even parties who agree to amicably separate find it difficult to adjust to their new surroundings/environment, and emotions are fuelled when a party changes their position regarding the division of property despite both having agreed for ‘one to keep the house and pay the other out’.
Whilst many cases are settled outside of Court, stress and anxiety increases exponentially when parties are required to go to Court, especially matters involving children.
Emotions may fluctuate on a day-to-day basis or week-to-week basis. The thought of the family law proceedings weighing on one’s mind whilst they attempt to work or attend social outings affects the atmosphere and attitude of a person.
In the event that you do find yourself in this ‘pressure cooker’ environment, avoid substance abuse and reverting to alcohol to ‘ease’ the tension. Remember to focus on your psychological, emotional and physical well-being by seeking professional help with mental health professionals and doing physical exercise.
Whilst family lawyers make every attempt to make the separation process as smooth as a transition as possible and provide support in times of need, they are not trained counsellors/psychiatrists.
It is important to remember that stress is normal, but if you feel stressed and anxious all of the time, this may lead to depression and other mental health issues if not addressed.
Should this be the case, there a number of organisations that offer support and advice, including but not limited to:
Family Relationship Advice Line
If you have any queries in relation to the issues raised in this article, please do not hesitate to contact us on (02) 8999 9837, or fill out the enquiry box and we will get back to you ASAP.
If you are over the age of 18 and do not have a Will, please consider attending to preparing one as soon as possible. As you are aware, it must be a written document outlining your wishes in relation to how your assets should be distributed subsequent to your debt. The document should be witnessed by two independent witnesses and should also outline who your Executor/ Executors would be.
Of course, dealing with debt and managing the Estate of the people who we love are two things most of us hate to think about. However, it is imperative that you think about your options as to how it should be distributed after your debt so that all your hard-earned money and assets can in fact be left for your loved ones rather being taken by your Trustee or distributed according to the eligible persons applying for any interest in the Estate.
What more can a Will include apart from money and assets?
In this day in age, a Will should also include digital assets, frozen eggs and sperms, social media and pets.
The things to consider should also include your assets that you may have forgotten to include otherwise. For example, when it comes to Facebook, would you want your account closed or become memorandum after your passing? Do you have a Facebook business page that would need to be managed? Accordingly, the Legacy Contact is the person you can appoint in your Will and who can access your account and carry out your wishes in the event your death occurs.
Do you have a Paypal account, a Bitcoin balance, investments in Acorns or an Ebay store?
If any of these accounts are of value or holds money in them, then you need to stipulate what happens to those accounts including who will manage them and have access to them after your death.
If you are a photographer or a blogger, your writing or images can be part of intellectual property and as such, you will need to incorporate these properties into your Will.
Do you have pets?
If so, those fury mischief makers should be dealt with in your Will. Otherwise, pets of deceased persons may end up in rescue centers where they rely on the goodwill of strangers to provide them with a foster home.
Do you anticipate having children in the future?
If you are young and anticipate having children in the future, it would also be wise to have your eggs or sperms frozen so that in the unfortunate instance of your spouse or partner passing away, he or she then provides you access to that property in order for you to have children subsequent to that person passing away.
It is imperative that you consider your options before finalizing your Will. If you wish to amend your Will or reconsider your Will being redrafted, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box, and we will get back to you ASAP.
We recently hosted a free legal workshop covering the areas of the law that affect us all in our daily lives. Topics included wills, family provision claims, family separation, cyber-bullying, domestic violence, children and welfare.
Dates:
- 15 March 2019: 12pm-4pm
- 16 March 2019: 9am-1pm
Location:
- The Connection, 30 Shoreline Drive, Rhodes (only 600 metres from Rhodes Station)
Share our Flyer with your family, friends and community.
Our Speakers
Sanjay Deshwal
Sanjay Deshwal heads up the Australian Visa & Migration Consultancy Services, which specialises in temporary and permanent residency visa applications onshore and offshore for Australia, New Zealand and Canada.
Since 1996, Sanjay has successfully assisted thousands of individuals and families to obtain permanent resident or temporary visas in Australia, New Zealand and Canada. Sanjay is an experienced professional who is always up to speed with the ever-changing immigration laws in Australia.
Dr Kiran Jassal
Dr Kiran Jassal is passionate about women’s health and family wellness. She has been working as a family GP for over 25 years after graduating from Sydney University.
In her practice, she has seen the need for women to look after their mental, emotional and physical well-being so as they are able to thrive in their intense daily lives.
In her career, she has had the opportunity to work with women and families from a range of different cultural backgrounds and is acutely aware of the challenges they face.
Kiran is a member of Lean In Inc, a not for profit association that is dedicated to the empowerment of new migrant women.
Deep Mitra
Deep is a Chartered Accountant from the Institute of Chartered Accountants in Australia & New Zealand. He is also a fellow Chartered Accountant (CA) and Cost & Management Accountant (ICWA) from India. He holds a practicing CISA designation from ISACA, USA.
Deep started his career with AF Ferguson in Mumbai before moving into financial consulting in Dubai specialising in market entry structuring. He spent his next 10 years in Sydney with the ING Group and with the National Australia Bank in SOX and in Financial Governance. In between, he did a 2 year secondment at ING Asia Pacific regional office in Hong Kong. Deep has extensive experience in structuring market entry into Australia, taxation, regulatory compliance and auditing.
Linda Lemon
Linda is a caseworker at the Lisa Harnum Foundation supporting and empowering families affected by domestic abuse. Lisa is also the Secretary of the Hills Domestic Violence Prevention Network.
Lisa was born in New Zealand and has lived in Australia for 37 years.
Linda has 17 years of working within non-government organisations (NGO’s), ranging from Special Homelessness Service, and in a non-government protection role in Western Sydney. It is through the differing roles within these services, Linda believes has contributed toward her becoming skilled, informed and has grown her as an individual and as a worker.
From this experience Linda has been able to gain significant insights into the coal face issues that are facing individuals accessing services. In addition, the challenges workers face as they seek to deliver services to their clients.
Linda is currently working with women and families experiencing and escaping domestic violence, through her role as The Lisa Harnum Foundation Caseworker. The Foundation focuses on walking the journey of love, hope and freedom, placing value, worth and purpose on the women and children impacted by the trauma and devastation of domestic violence.
Linda is passionate about building and linking other services within the Hills District as she holds a strong belief that services working together, in a holistic approach, can only benefit those who are seeking help.
The Hindu Council of Australia this weekend has announced that Mittu Gopalan is the Winner of Gargi Women Award 2019 - Performing Arts.
Mittu Gopalan finds time for her passions and pursues them, despite being a successful lawyer and managing a business.
Mittu also conducted a painting exhibition in November 2017, and has donated paintings to charity (see our blog post on that subject here).
Congratulations Mittu! We are extremely proud!
New legislation has been passed that prohibits foreigners who have been convicted of domestic violence from entering Australia. The Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 has amended the Migration Act 1958 to focus on perpetrators of violence against women and children. Immigration Minister David Coleman said;
“Wherever the offence occurred, whatever the sentence, Australia will have no tolerance for domestic violence perpetrators.”
This legislation was passed as the previously existing laws only allowed the Government to revoke Visas of foreigners who failed a character test or who had spent 12 months in jail.
Though previously in 2015, singer Chris Brown was refused an Australian Visa for his planned concerts due to his 2009 conviction of assault and threatening to kill his then-girlfriend Rihanna, it was not common practice for the every-day person to be refused a Visa for Domestic Violence convictions.
However, we are pleased to note that this has now been written into the Migration Act to protect Australians and focus on reducing the number of Domestic Violence incidents in Australia.
If you have been affected by domestic violence, or have any queries in relation to the issues raised in this article, please do not hesitate to contact us on (02) 8917 8700, or fill out the enquiry box and we will get back to you ASAP.
Our free legal workshop on 15-16 March will cover domestic violence issues. Please consider coming along, and registering here - you can remain anonymous.
A well drafted ‘Will’ can also be contested if one feels that they have been left out of the ‘Will’ or if they have not been adequately provided for their proper maintenance, education and advancement of life. The claim that they have on the estate is called the Family Provision Claim and these claims are very common in the current age of longer life expectancy, divorce, multiple partners, step children and blended families.
The time limit for an individual to apply for the claim is very crucial and is ‘12 months’ within the death of the deceased person, unless the Court orders otherwise.
A family provision claim can only be made by an eligible person as defined in section 57 of the Succession Act 2006 (NSW).
The following are few factors that the Supreme Court considers while accessing a family provision claim;
- If you are an eligible person as defined in section 57 of the Succession Act;
- The size of the estate of the deceased ;
- The applicant's financial circumstances and needs;
- Financial circumstances and needs of the other beneficiaries;
- Any other provision made for the applicant during the deceased’s lifetime.
- Any other factors that the Court deems fit.
The Court dives deep into the actual “need” for the applicant’s claim in the deceased’s estate in order to lead a comfortable life and that the applicant is not able to meet their financial requirements from the applicant's own resources.
If you think that you have been left out of a 'Will', and would like some advice about contesting an estate ('Will'), please do not hesitate to contact us on 02 8999 9837 or fill out the enquiry box and we will get back to you ASAP.