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;

  1. If you are an eligible person as defined in section 57 of the Succession Act;
  2. The size of the estate of the deceased ;
  3. The applicant's financial circumstances and needs;
  4. Financial circumstances and needs of the other beneficiaries;
  5. Any other provision made for the applicant during the deceased’s lifetime.
  6. 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.

The general public usually assumes that the division of assets should be a 50/50 split between the parties who are separated and intend to finalise their financial relationship.

This is not always the case. The Federal Circuit Court and Family Court take into consideration various factors when determining a division of the matrimonial asset pool, which are as follows:-

1. The initial step would be to determine the net value of the matrimonial asset pool.

Whilst real estate is generally the most significant asset of the matrimonial asset pool, it is not the only asset. Other assets also include bank accounts, motor vehicles, real estate etc. Even personal items such as luxury handbags and jewellery, depending on the value, can be included, or a person’s share in a company, for example, a construction company.

Assets owned solely by a party, jointly with each other or even jointly with a third party are to be included.

The net value of the asset pool is to be determined. Therefore, liabilities, such as credit cards and finances secured over motor vehicles, are also taken into consideration. The total assets minus the total liabilities would equate to the net value.

Also, superannuation is also taken into consideration by the Courts. However, it is best that you seek legal advice from an experienced family lawyer in relation to the Superannuation Split.

2. Contributions made by each party throughout a marriage or de facto relationship are also taken into consideration.

These include financial contributions, such as one partner earning an income, and the non-financial contributions (or equitable contributions) made by a party in their capacity of a homemaker, such as caring for the children and carrying out the household chores.

3. Future Considerations.

The Court will also take into account future considerations, i.e. relevant future factors, including but not limited to:-

  1. Age and health of the parties;
  2. Income earning capacity of the parties; and
  3. Whether one party is to be the primary carer of the children.

4. Last of all, the Court has to determine whether the division is 'just and equitable'.

This decision is at the discretion of the Court and simply put, should the Court think that making a division, even if it is agreed upon between the parties, is unfair and inequitable, it may make an adjustment to the ‘disadvantaged party’ which it determines to be fair.

Once the Court takes into consideration of all of the above (and more) and essentially ‘balances out’ all of the relevant factors, it can make orders that it deems to be within the parameters each party is entitled to. The purpose of the division of the matrimonial asset pool is to finalise and sever once and for all the financial relationship of the parties so that they can move on their own separate ways without any further connection between them in relation to property.

This article is general advice and does not take into account your personal circumstances. It would be prudent to obtain legal advice in relation to your particular circumstances.

Our Firm is holding a legal workshop on 15 and 16 March 2019 and we will be discussing various issues including this topic and the best thing – it’s for free! Hence register your interest now by clicking here.

Following the banking royal commission, The Australian Securities and Investments Commission (ASIC) has spent over $100 000, in the hopes of rebranding itself as ‘respected’ and ‘accountable’. However, Australians have been left questioning whether this fresh rebranding was necessary, or rather, just another example of wasteful spending in the financial services industry?

According to ASIC’s senior executive leader, Matthew Abbott, the branding update would make ASIC’s materials more suitable for digital channels and hence, more accessible for Australians. The ABC has reported that more than $40 000 went to creative development and almost $60 000 was spent on design and asset development. This price is said to include new stationary templates, banners and the web design update for ASIC’s online homepage.

 

 

 

 

 

 

 

New logo, on the right. Old logo, on the left.

To the untrained (and possibly trained) eye, ASIC’s new logo looks nothing more than a bold new font and a downsized logo. It seems that the Australian public agreed, using social media to label ASIC’s branding as an ‘illegal’ and ‘laughable’ use of tax payer’s money.

Federal Labor MP Matt Keogh also criticised ASIC for being too soft on banks. ‘Instead of working to throw the book at the banks, they were concerned about the font that that book was written in,’ Keogh told the ABC.

“Strong. Accountable. Firm/Fair.” That is the image that ASIC wanted to project through a transformation of their visual identity. However, the simplistic nature and staggering cost of the regulators so called ‘re-branding’, has quite obviously had the opposite result on the general public.

We wonder whether re-branding was the best way to go for ASIC, or rather, was it merely a waste of your hard-earned tax payer money? Rather, could the money have been used to employ additional investigators to target the misconduct of banks or mortgage brokers?


The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry was announced on 30 November 2017, and we have been following it closely ever since. Click here to read our earlier blog post on the Commission.

On Monday, 4 February 2019, the long-awaited final report was released. The report follows Commissioner Kenneth Hayne’s calls for ‘change’ in the financial services industry.

The recommendations made in the final report have focused on ending the unsolicited sale of financial products, banning conflicted remuneration earned by intermediaries, and the better enforcement of legal standards.

Some of the key recommendations include:

Banks:

For farmers and those with poor English skills:

Financial Advice:

Superannuation:

Insurance:

For those affected by the finance sector:

After the report?

Justice Hayne has referred major companies, including Suncorp, ANZ, NAB, Allianz and ClearView, to regulators for possible criminal or civil action. It is the intention that through an increased scrutiny of these major financial service providers, consumers will be better protected against misconduct.

If you have been a victim of a financial service’s misconduct, or have any queries relating to issues featured 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.

The Honourable Kenneth Hayne AC QC, during the Royal Commission

The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry was announced on 30 November 2017, and we have been following it closely ever since. Click here and here to read our other blog posts on the Commission.

After reviewing over 10,000 submissions from the public, and over 69 days of public hearings, the Commissioner Kenneth Hayne submitted his final report to the Governor-General on Friday, 1 February 2019. Today, at 4pm, the details of the final report will be made public.

While we don’t yet know what will be in the report, the Commissioner in charge of the Royal Commission has said the dishonesty and greed are to blame for the suffering of many people around Australia due to the misconduct of banks. The interim report released in September last year said that ‘short-term profit was pursued at the expense of basic standards of honesty’ and cited examples of banks charging fees for deceased estates.

What will be the effects of the Final Report?

The Commission itself can’t press charges or give compensation to victims of misconduct. However, it can make recommendations to the Office of the Commonwealth Director of Public Prosecutions, who made decide to prosecute the misconduct.

It is likely the Final Report will recommend stronger regulation of the current laws, rather than changes in the law itself. The Commissioner has strongly criticised ASIC (Australian Securities and Investments Commission) and APRA (Australian Prudential Regulation Authority) for failing to properly monitor banks and financial institutions, and letting the conduct go unpunished. One change may be greater funding for these regulators, allowing them to monitor institutions more closely and take action when they sniff out misconduct.

Recommendations in the Final Report may also address how the banks pay staff, including their senior executives such as CEOs. There will also be recommendations regarding superannuation and insurance. One possible recommendation is whether insurance companies can 'cold call' vulnerable people to sell their product.

What will this mean for you?

We foresee there will be greater transparency around the fees and charges that you are paying, and why you are paying them. Some people have forecast that obtaining credit and loans may become more difficult, as banks become more cautious.

Ultimately the Royal Commission has highlighted how much misconduct has been occurring in the financial services industry. Consumers must be wary and scrutinise their own dealings with banks, superannuation and insurance services, and contact someone if they feel there has been misconduct.

If you have been a victim of a financial service’s misconduct, or have any queries relating to issues featured 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.

We are proud to announce that our Principal Solicitor Mittu Gopalan has recently participated in the auditions for Masterchef 2019! As part of the challenging audition process, Mittu partook in the Mystery Box Challenge and a Signature Dish Cook-Off.

For the Mystery Box Adventure Session, Mittu created a fish with sauce dish alongside skewered melons:

Then, for the Cook Off between Signature Dishes, Mittu chose a traditional Indian dish, ‘Stringhopper with Crab Curry’:

There were about 5000 applicants from which it was reduced to approximately 1500 applicants for audition. We congratulate Mittu on making it to the auditions! The Sydney audition was held at the Baulkham Hills Tafe and Mittu had much fun in spite of it being a challenging experience.

Though Mittu wasn’t successful, she had a wonderful experience and wishes all the successful Masterchef Australia 2019 applicants all the very best.

The High Court has recently decided that the debt of one spouse may be transferred to the other during a divorce property settlement. In the case of Commissioner of Taxation v Tomaras, it was decided that the Family Court can give orders to the Australian Tax Office (ATO) as part of the determination of a divorce-related property dispute.

In this case, Mr and Mrs Tomaras were married from 1992–2009, during which time Mrs Tomaras accrued debts of $250,000 owing to the ATO. After the breakdown of their marriage, Mr Tomaras became bankrupt. In December 2014, Ms Tomaras commenced proceedings in family law, and when the Taxation Commissioner intervened, seeking the $250,000. Ms Tomaras sought orders to substitute her ex-husband for herself as the debtor.

This recent High Court case then decided that the Family Court could indeed make the order Ms Tomaras sought. This was due to s90AE(1) of the Family Law Act 1975 which allows the Court to make an order binding a third party – in this case, the ATO. The order bound the ATO to substitute the husband for the wife in relation to the debt. Here, it did not make a difference that the husband was bankrupt, and that the Taxation Commissioner is now potentially $250,000 out of pocket.

Cases like this are unlikely to be common, as they will only occur when one spouse has been unwilling to share the burden of taxation during the relationship, and in cases where it would be ‘just and equitable’ to make this order. This will only occur when the person who originally owed the debt is unable to pay it. Nevertheless, spouses should be aware that they may be responsible for their partner’s taxation penalties and/or liabilities, even after separation.

If you have any queries relating to divorce property settlements, or any of the issues featured 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.

With an increasing population in Sydney, high-rises are becoming the norm for future residential development. Despite offering obvious benefits, the high-density-living solution has several drawbacks for its residents. Specifically, there is the fear that inferior and sometimes dangerous products are often used in the construction of these buildings. According to studies undertaken by the University of NSW City Futures Research Centre, 85% of high-rises built in NSW since 2000 had some form of defects.

The recent Opal Tower crisis in Sydney Olympic Park stands in testament of these statistics. After only opening in August 2018, residents of the high-rise were evacuated on Christmas Eve because of a major structural defect.

The high-profile Opal failure exposes shortcomings in the Australian construction industry. Specifically, the lack of protections for consumers who occupy these buildings. As residents of the Opal building face an uncertain future, the question remains: what can you do if the apartment building you live in is deemed unsafe or defective?

Are you an owner? 

Under NSW Law, owners have a right to pursue the developer and the builder for rectification of a building’s defects. However, owners are only protected under this warranty scheme where the building is less than six years old. Owners wishing to hold builders and developers liable for projects older than six years are encouraged to seek legal advice.

Are you on a lease?

Where a rental property is defective, tenants in NSW have a statutory right to terminate their lease without incurring extra costs. Tenants might also be able to receive alternate compensation or have their rent waived or reduced. Although, compensation is a difficult avenue of redress for tenants, as it is not explicitly regulated by the Residential Tenancy Act.

Are you a guest?

Those staying in short-term rental accommodation could also be protected under Australian Consumer Law. It is a requirement under the Australian Consumer Law that the goods or services provided to consumers be reasonably fit for a particular purpose. In the event that a short-term rental accommodation becomes unliveable, that property can no longer serve as a place of enjoyment for the tenant. In this case, the host as failed to provide goods and services as promised and the consumer could make claims on the trade.

If the building you are in is defective, or have any queries relating to the issues featured 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.

 

The law stands on centuries of traditions and precedents. In contrast, technology is growing as a rate faster than ever before. On one hand, how will the law keep up technology? On the other hand, how will technology change the legal profession?

The President of the Law Council of Australia spoke at the Australian Young Lawyers’ Conference in 2017, and said technology is completely transforming the legal profession, and creates ‘unique opportunities to develop solutions for clients’. There are even emerging artificial intelligence technologies that can highlight the important clauses in a contract. Technology is changing the workplace, and clients can now expect increased effectiveness and efficiency.

There are new hybrid roles emerging for people who combine legal and IT elements into their jobs – the ‘lawyer technologist’. Law graduates with experience in STEM (Science, Technology, Engineering and Maths) will have clear advantages. Workplaces will have to help employees develop technology skills in order to keep up with rapid changes and advancements.

The other issue is that law may not be keeping up with advances in technology. It requires changes, such as the inclusion of cyberbullying in the Crimes Act to catch up, while technology keeps moving forward. One example is that it is illegal for an employer to ask about religion, sexual preferences or marital status in an interview, but they can go on social media and filter out applicants based on personal details found there. There is also the argument that privacy laws are lagging behind data-collection technologies used by Google, Apple, Facebook and various other applications and websites.

As long as technology continues to advance, which we know it will, the law (and lawyers) will have to work to keep up.

 

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