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DDCS Lawyers | Family Lawyers Canberra

How to choose a lawyer when you’re facing an estate dispute

Regardless of whether you are an executor of an estate, you have been left out of an estate, or you are a beneficiary having problems with an executor, the decision you make in choosing a lawyer to assist you is an important one.
There are three critical elements to consider when you are selecting a lawyer to assist in wills and estate disputes.
Firstly, you need a lawyer who practices and has experience in Estate Law. Secondly, you should select a lawyer who has a good grasp of dispute resolution and in particular good mediation skills and you also need somebody who has experience in litigation, even if you have no intention of ever going to Court. 
Unless your lawyer has all three of these skills you will not receive the best and most comprehensive advice. This article explains why all three elements are critical and I will also share some questions to ask and actions to undertake, to get the best possible outcome for your circumstances.
Where to look first
When you are seeking a lawyer, below are some actions I recommend you consider: 
Check with your local Law Society for a list of lawyers who work specifically in Wills and EstatesResearch the Doyles Guide awards. These awards are presented to lawyers who have been nominated by their peers as leaders in their profession; andSeek out lawyers who are dedicated Wills and Estate lawyers.
It is important to find out if your lawyer is working in the area of estate disputes regularly. When you search for possible lawyers online, see if the law firm displays itself as having a dedicated practice in wills and estate planning as well as dispute resolution and litigation. When your lawyer works across all of these areas, they are likely to have the breadth of knowledge required to assist you.
While you may have an existing relationship with a solicitor who has helped you with other matters, it is recommended that you avoid using a general practitioner lawyer for matters relating to estate dispute. You should engage someone with the depth of understanding of the relevant laws and is undertaking this type of work on a daily basis.
Questions to ask
When you first phone a law firm to enquire, I recommend you ask more than just ‘how much will it cost?’ The cost will vary depending on a range of factors in any law firm. I recommend you ask qualitative questions such as:
Do you help with ‘(insert issue or problem here)’?How much of this work do you do?Do you only do Estate Disputes?What other type of work in this area do you do?How many people in your office do this type of work?Would you or someone else be assisting me?
The idea is to determine if a specific person or team is dedicated to this area of law. 
It is also wise to ask whether the lawyer or firm has experience in the jurisdiction involved. There are differences in the legislation about Family Provision Claims in the ACT and NSW for instance, so a comprehensive understanding of the differences in the legislation is important. 
Related: Who can make a family provision claim? – ACT & NSW
Why you should consider an Estate Litigator

You may wonder why you should consider an experienced litigator, particularly if you have no intention of going to Court.
Someone who is experienced in estate litigation has better knowledge and experience of possible outcomes and in the event that your matter cannot be resolved, your lawyer will be sufficiently equipped to support you through your matter. In the event that your matter does go to Court, you want someone who is aware of what going to Court means in terms of process, cost and time frames. You also want someone who understands and can explain to you, the possible risks of going to Court. 
A lawyer who is experienced in going to Court for estate disputes will also have additional insights such as the views and attitude of the Judge who will be looking at your case, how they are likely to respond (based on previous judgments), as well as how the opposing lawyer is likely to respond in particular circumstances. It is one thing to be a great estate planner and to know the Family Provision Act backwards but unless your lawyer is a specialist in litigation you are not going to get the best advice and representation.
Dispute Resolution 
Going to Court is only one way of resolving an estate dispute. Many disputes are resolved outside of the Court system and even where court proceedings are commenced the dispute will be resolved without the need for a court hearing.The Courts now refer almost every estate dispute to mediation and will not entertain a final hearing unless the parties attend mediation. A significant proportion of matters are resolved at mediation. Accordingly, it is important that you select a lawyer who has experience in dispute resolution, particularly in mediation. Mediation is an entirely different process to a court hearing and the skills required of a good and effective mediator are very different to the skills required of a good litigator. 
There are a surprising number of lawyers who work in the Court system and litigate but do not have any training or skills in mediation and dispute resolution. So ensure that the lawyer you choose has these requisite skills and experience by asking some direct questions.
What to do first
It is wise to meet in person or online with any lawyer before engaging them. 
When clients come to us for second opinions, we often hear them complain that they are either not getting the progress in their case  they had hoped for; that they don’t feel listened to; or that they have lost confidence in their lawyer. The relationship between lawyer and client is key and the key to a good lawyer/ client relationship is good communications, which starts from the very first meeting. At the end of the first meeting you should come away with a sense that your lawyer understands the issues at hand and in particular your concerns and priorities in relation to those issues; that there is a plan for dealing with the dispute; and that you have an understanding of the range of possible outcomes, the alternative pathways for resolving the dispute and time frame, costs and risks associated with each alternative pathway. 
I recommend that you invest in an initial consultation so that you can determine if that lawyer is the right fit for you and your circumstances. At this meeting your lawyer should take time to ask you about what is important to you as the client. Your priority may be related to time or money. It may be related to minimising stress or wanting to preserve a relationship. You may want to take assertive action and play hard ball or alternatively to take a softly softly approach. A good lawyer will talk to you about the consequences of all options and give you confidence in taking your next steps. This is the opportunity to ask all of the important questions.

The DDCS wills and estate planning team are highly experienced and specialise in helping people navigate issues like these. To discuss your circumstances, phone our team on (02) 62127600 or fill in the contact us form and our team will be in touch.
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An Amicable Divorce: 5 tips to achieve an amicable separation and divorce

For most people the summer holiday season is a time to reflect on the past year as well as planning for the next. For some people reflection results in the difficult decision to end their relationship. Consequently, family lawyers usually receive an influx of inquiries from people seeking advice, particularly after the holidays have come to an end and the children have returned to school. 
Most people ending their relationship start with a goal of having an amicable divorce. While this is usually the best approach to take in some cases these intentions cannot be realised. This article shares some tips that can assist with achieving an amicable divorce. 

How to Separate Amicably
Tip 1 – Be Realistic
Some people with amicable intentions start their divorce journey with a degree of blind optimism, sometimes forgetting the reasons why their relationship has come to an end. Even in the most cooperative relationships unkind words will be exchanged when emotions are running high and this can often trigger a change in attitude, in worst cases undermining the mostly cooperative approach taken by the couple. 
Sometimes we are consulted by clients who have had friendly negotiations with their former partner, only to be disappointed when they find out that their in principle agreement is unrealistic or unlikely to be supported by the Court. For instance, some couples reach an agreement about keeping their jointly owned house as a “joint investment”. We caution our clients about the risk of this approach having regard to one of the parties changing their mind further down the track or not contributing to the costs of keeping the property.
In parenting matters we sometimes see clients who have decided to alternate spending time with the children in the former matrimonial home.This concept known as “bird nesting” usually loses its attraction because the parents increasingly feel uncomfortable about sharing the home with their former spouse. It may be more realistic and ultimately better for the children for the parents to establish two homes early in the separation.
Tip 2 – Be cautious of well-meaning supporters
Your circumstances are unique to you and your former spouse. What occurred in someone else’s separation can be helpful to know however it is important not to make decisions based on the advice or insights of well-meaning support of family and friends. While others have experienced separation, each family circumstance is different and you should act based on your particular situation.
Ensure that you receive advice from professionals who have a broad experience and specialist expertise in assisting families through separation rather than taking advice from well-meaning but perhaps ill-informed supporters.  

Tip 3 – Read with a critical eye
There is no end of advice available online about separation and divorce. Much of it is helpful and is designed to support people like you going through the separation and divorce journey. However, content written for example, an American audience will not always be relevant in terms of the law. For instance, there is no 50/50 rule of dividing assets here in Australia. We have a far more involved process that takes into account a number of factors including homemaking and parenting considerations.
Tip 4 – Be informed
Many people who are separating believe that seeking legal advice will generate a “high conflict” divorce, resulting in costly court proceedings. 
We have seen many people whose decision to avoid seeing a lawyer has resulted in irreversible financial consequences and suboptimal parenting arrangements. 
A family law specialist will help you become informed about the law and the process and it is best to seek advice early or even prior to separating. 
Tip 5 – Go to the right person for you
Find a lawyer who is supportive of your intentions to remain amicable. They will help you determine what is fair for both of you not only now, but in the long term as well. We recommend you choose someone who will ask you questions about what you are looking to achieve and is supportive of helping you negotiate a settlement in a way that you want it to unfold. 
If you need to, speak with a few family lawyers to see who you feel most comfortable with and who you know is going to work with you towards your goals rather than an adversarial lawyer.
This year I have been practicing as a family lawyer for over 28 years helping people through the separation and divorce process and supporting them in their goal to achieve an amicable divorce. Along with my colleagues we have helped many people feel confident and well informed about their decision making as part of their amicable approach to settlement.

DDCS Lawyers specialise in all aspects of family law and can help guide you through the difficult process of separation. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
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Will it be right when you write your Will? Common mistakes to avoid in estate planning and will making

When people take the step to make their will and/or estate plan, they don’t always get it right. In this article, I explore some of the more common errors that can lead to unintended or even catastrophic outcomes, such as wealth ending up in the wrong hands, costly estate disputes, or irreparable damage to relationships. 
In this article I highlight some of the more common mistakes we see. With careful planning and good advice, these mistakes can be avoided. 

1. Not planning at all
The most obvious mistake is failing to properly document your wishes. There remains a significant number of Australians who don’t even have a Will. This may be because they believe that they are too young to require estate planning, or that they do not have enough assets, or that they do not have dependents. 
The reality is that nearly everyone has either estate or non-estate assets. These may include real estate, cars, bank accounts, shares, personal belongings, superannuation, life insurance, social media account or digital assets; and everyone should consider who would make important decisions about their finances, personal care, and medical care if they were injured or became unwell. 
Related: Is estate planning the same as a will? Should I consider estate planning?  

2. DIY Wills
Some of the most avoidable mistakes can be found where ‘do-it-yourself’ wills are concerned. These can be a bit of a trap because even a straightforward estate can be misrepresented in DIY wills, resulting in errors, inequities or uncertainties for loved ones. 
Too often we see DIY wills which are unclear or contradictory. This can often result in costly legal fees to administer the estate and sometimes result in having to go to Court to rectify the will or to ask the Court to interpret the Will. The Court’s interpretation may be different to that which the willmaker intended.
What makes a will more likely to be able to be effective is the legal advice that goes with it. Seeking appropriate legal advice will minimise any chances of the intended beneficiaries missing out on their inheritance and avoid lengthy and costly legal proceedings. 

3. Non Estate Assets
Estate assets are assets that a person is legally entitled to deal with in their Will. This will include most assets owned in the person’s sole name at the date of their death. 
Non-estate assets are unable to be dealt with by a person’s Will alone. These assets include jointly owned property (such as a home owned in joint tenancy) superannuation funds, life insurance or trusts.
Jointly owned property is a non-estate asset and cannot be given away in your Will. When you own property jointly with one or more other persons, the other joint owners will automatically inherit the property. 
Superannuation funds, life insurance policies and trust assets also require further consideration. Additional estate planning documents (such as a binding death benefit nomination) may be required to ensure the gift is received by the intended beneficiaries. 
Related: When superannuation doesn’t end up with the people it was intended for: blended families & government super
Why you need to check your superannuation death benefit nominations

4. Appointing the wrong executor/s
The role of an executor generally is to administer the estate by finalising your affairs, calling in your assets and paying your liabilities whilst acting at all times in the best interests of beneficiaries. If you have two or more executors who are unable to reach agreement, then the administration of the estate can be delayed and costs may be incurred.
Often people will select one or more executors in an attempt to be ‘fair’. For example, it is common for a willmaker to appoint two or more children without considering their capacity to get along. Also common is the appointment of a second spouse without considering their relationship with children from the deceased’s prior marriage. 
If the executors cannot make decisions together or simply do not agree this may hinder the administration of the estate and place even more strain on relationships.   
Consider the suitability of the executor for the role, and the nature of the relationship between multiple proposed executors. If there is a high risk of a dispute or if family relationships are fragile, then you may wish to consider appointing a lawyer, a licensed trustee company or an independent third party to be the executor. 
Related: How to avoid disputes about your will (executors behaving poorly)

5. Failure to provide
Sometimes a willmaker wishes to leave someone out of their Will, such as a child, spouse, or other family member. It is essential that the willmaker has the benefit of expert advice in making this decision and in preparing the Will and estate plan to go along with it, as this sort of decision can leave the estate exposed to risk of litigation pursuant to Family Provision legislation. 

This legislation is different in each State and Territory, but the key component is whether the willmaker has made ‘adequate provision’ for specific people to whom they had a moral obligation to provide. We have explored this more deeply in our article, Who can make a family provision claim? – ACT & NSW. Failure to provide adequately is fertile ground for estate disputes, so appropriate legal advice is necessary to ensure that people’s wishes are upheld and the intended beneficiaries receive their inheritance without undue risk of a costly estate litigation.  

6. Failure of gifts
There are various reasons a gift in a Will may fail. These include gifts where: 
the intended recipient dies before you.the description of the item to be gifted is unclear.the intended recipient of the gift is unclear.the gift is no longer owned by you at the time of death.
For example if you wish to leave $10,000 to ‘your son’ but you have more than one son, this is unclear and so this may prevent the intended son from being the beneficiary of these funds. 
Problems can arise where a specific asset is gifted such as ‘my property at 1 Smith Street, Smithtown’, but then the willmaker moves to a new home without updating their Will. 
A specialist estate planning lawyer will help you create a Will and any other necessary estate planning documents that are flexible enough to overcome life’s everyday events whilst delivering your overall strategy. 

7. Making assumptions about who will die first
When there is a significant age gap, people often assume that the older person in a relationship will die first and plan their estate with that assumption in mind. Parents also often assume that they will die before their children and their children before their grandchild. Sadly, this is not always the case. 
 It is important to consider and provide for different scenarios as the last thing people want to think about when a loved one has died is updating their will. 

8. Forgetting Liabilities
When assets are allocated to specific beneficiaries, there can be debts associated with those assets. When there are no instructions on how the liability will be paid , the recipient of the asset will also inherit the liability attached to that asset which can sometimes result in an unfair division of assets. Your intentions as to any liabilities attached to an asset should be carefully considered and documented if necessary. 

9. Failing to consider testamentary trusts as a strategy
A testamentary trust is a great tool that many will makers overlook. The perception is that it must be complicated, or that it is only for the wealthy, or that they are only appropriate where the beneficiary can’t look after their own money. This is not necessarily true. 
A testamentary trust can be a very effective tool to protect a beneficiary’s inheritance from a range of potential risks such as being divided between separated spouses by the Family Court, and bankruptcy. A testamentary trust can also provide beneficiaries with helpful tax planning opportunities such as tax benefits and flexibility in income distribution. 
Related: Why testamentary trusts are not only for the wealthy

Get it right
Despite people’s best intentions, wills are frequently unable to be upheld or subject to disputes for many reasons. Mistakes such as these can be very costly, can create unintended outcomes or negative impacts for beneficiaries and can have long-lasting impacts on family relationships. With advice from an expert estate planning lawyer, the risk of conflict and potential disputes can be minimised and the matter kept out of court.

The DDCS wills and estate planning team are highly experienced and specialise in helping people minimise risk relating to wills and estates. To discuss your circumstances, phone our team on (02) 62127600 or fill in the contact us form and our team will be in touch.
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Is estate planning the same as a will? Should I consider estate planning?

What would happen to your assets, family and loved ones if you were to lose your mental capacity or pass away? If you are considering this question, chances are, you should consider estate planning. 
You might think that because you are young and healthy, or you have few assets, you don’t need to worry about estate planning. However, nearly everyone has either estate or non-estate assets. These might include:
Real estateCarsBank accountsSharesPersonal belongingsSuperannuationLife insuranceDigital assets (such as followers on social media, streaming subscription service accounts, copyrights in photos, videos and music you have created,downloaded or purchased online).
Alternatively, you might think that because you don’t have any dependents or family that you don’t need an estate plan. But who would make important decisions about your finances, your personal care, your medical care if you were injured or became unwell? Who would decide whether medical care (such as life-support) should be withdrawn on your behalf? Would these decisions cause a dispute amongst your loved ones?
Making a plan about what will happen to your assets when you pass away or lose capacity is a crucial step in properly managing your estate. When you have the right strategies in place, you will have peace of mind knowing that your assets will be distributed the way you want upon your death, and that you will be looked after in the way that you would like if you lose the ability to make decisions for yourself. 

What is estate planning?
In a nutshell, estate planning is the process of making sure that everything you own or control will go to who you want it to go to, or be looked after by who you want, if you die or become incapacitated (i.e., through accident or illness). 

Is estate planning the same as a will?
An estate plan nearly always includes a Will, but a Will isn’t always enough. Estate planning is a broader concept that involves the consideration of:
What sort of assets you have now and may have in the future;To whom you might be responsible to provide;How to minimise the risk of a dispute;How to transfer ownership or control of estate and non-estate assets to their intended recipient in the simplest and most tax-effective way;Who are the right people to look after your estate and non estate assets after your death?; andWho will make important decisions for you if you can’t make decisions for yourself.  
Not all of your assets can or will necessarily be dealt with by your Will. A good example of this is superannuation, which is not automatically an estate asset that can be dealt with by your Will, or jointly owned property, which would pass to the other owner regardless of what you say in your Will. Non-estate assets require careful consideration as part of the estate planning process. 
Estate planning can also involve consideration of non-estate entities that you have an interest in, such as a company, a family trust or a self-managed super fund. These kinds of entities, which are yours or you have an interest in, are not necessarily covered by a Will.
So in addition to a Will, a good estate plan may include:
an Enduring Power of Attorney (to appoint your substitute decision maker/s and what decisions can or can’t be made by them);Superannuation Binding Death Benefit Nominations (to ensure your super benefits are received by the intended recipients);Beneficiary nominations (for life insurance policies); andOther trust or company documents as required. 

What are the main steps in estate planning?
People often come to us for estate planning because they have reached a point in their life where they feel they need to make plans about their estate. Perhaps there is illness or perhaps they have just started a family. Sometimes they come to us when they have acquired significant assets or there may have been a significant change in their life such as a relationship breakdown.
The first step when we meet with you is to find out what you want and develop a thorough understanding of your objectives. This might be simple or it might be complex.
The next step is for us to take a good look at your financial situation in terms of your assets, liabilities and non-estate assets such as superannuation. We will also take a look at your family tree because that is a key element in planning to minimise disputes. We want to know what the relationship will be like between your family members, who you value or dislike, who is vulnerable and who has special needs or dependencies. This will help us identify where things could get messy for your estate and where relationship or communication breakdown could occur. This is an information-gathering phase which is primarily about understanding property and family relationships.
Next, we will make recommendations and provide you with advice about what documents or services you need to achieve your estate planning objectives in an effective way while avoiding pitfalls. At this point we know what your objectives are, what your finances and family looks like and we have identified where things could go wrong and can avoid or otherwise manage any of the risks that might be present.
We will then prepare the Will and any other required documents for your review and consideration. You may wish to consult with us for further advice, or make changes. 
Once you are happy with the documents, we will meet with you again to ensure that they are correctly signed and witnessed. 

Common missteps – the DIY Will
It is unfortunately common for individuals to feel confident about documenting their intentions without realising the limitations and risks involved. Regrettably, it is often only after the Willmaker passes away that people realise that elements of a will can not eventuate, that gifts in the Will have failed, or that there are many ways in which a Will can be contested.  Even for a simple estate, there are significant traps that DIY willmakers can fall into. This can result in costly litigation which causes significant financial loss to the estate and causes irreparable damage to relationships. 

When do I need to update my estate plan?
There are some key moments in your life when you should consider whether your estate plan is up to date and relevant. These might include:
A change in your relationship status (marriage, separation, divorce etc)The birth or death of a family member or someone named in your Will or EPOAA significant change to your financial situation (acquisition or disposal of a significant asset, starting a business, a new superannuation fund)A change to your structures (companies, trusts)
Sometimes, no change will be required. Other times, a simple change or update is all that is required to ensure that your estate plan and associated documents still fit your situation and objectives. We can help you review and make any necessary changes to ensure that your Will, Enduring Power of Attorney, and any other estate planning documents,  continue to fit your needs and goals. 
Related: Who can make a family provision claim – ACT & NSW 
When superannuation doesn’t end up with the people it was intended for: blended families & government super

The DDCS wills and estate planning team are highly experienced and specialise in helping people navigate issues like these. To discuss your circumstances, phone our team on (02) 62127600 or fill in the contact us form and our team will be in touch.
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Can I relocate with my child? Parenting arrangements and relocation

Parenting arrangements and relocation
Parenting arrangements and relocation cases are some of the most complex and difficult cases Courts are faced with. It is difficult in a country the length and breadth of Australia, let alone the issue of a country to country relocation. 
When a relationship breaks down, many people seek out family support and feel the need to return to their place of origin. Often economic issues are a motivating factor for moving back home with family to allow a separated parent to get back on their feet and sometimes a new love means that a move to another city or town is on the cards. 
Relocation cases are parenting cases. The guiding principle is still what is in the best interests of these particular children, having regard to a framework of issues to be considered and set out in the Family Law Act.
While a parent’s reasons for wanting to move are relevant and important, the parent who does wish to relocate does not have to show a compelling reason for the relocation.

Can you or your former partner relocate with your child?
If you do not have a parenting order in place, it is possible the other parent can relocate with your children and if the children are moved from the place they usually live to another, making it hard to see them and participate in their lives or if it results in reduced time with the children, you may make an application to the Family Court for the return of the children to their original place of residence pending the Court’s decision about which parent they should live with on a long term basis. 
Unilateral action is usually frowned upon by the court, so it is best to get advice before relocating. If there are Court orders in place which determine where your children live and how much time they spend with both parents, then relocating can be far more difficult. A relocation without the other parent’s agreement is likely to put you in immediate breach of orders for equal shared parental responsibility and also orders that provide for children to spend time with their other parent. It can also have the effect of reducing the other parent’s ability to participate in sport, extracurricular activities and school based activities.

What is the process if one parent wants to relocate? 

The process of wanting to relocate can be difficult when parenting arrangements have been in place for some time. Especially if the children live in an equal shared care arrangement. There are many factors that will need to be taken into consideration such as the children’s age, their views, their schooling and sports commitments as well as friendships and most importantly their relationship with their other parent. The interruption caused to the children is an important factor, but it is not the only factor. If you are the staying parent, you might argue that long-standing arrangements for the children will be disrupted to their detriment and the children will not be able to have a meaningful relationship with you as well as members of the extended family such as grandparents. 
As the parent wishing to relocate, it is extremely important to give careful consideration to the practical arrangements that you will need to make so that the children will be able to spend time with their other parent. It is important to carefully think through and plan for the time and expense involved with children (especially little children) travelling long distances to spend time with their other parent.
If you are wanting to relocate with your children the main thing you need to do is seek legal advice before taking any kind of action. Only after seeking specialist advice can you be confident about whether your actions will have any short or long-term consequences.

What application do you need to make?
If you do not have an existing Order in place, then you may need to make an application for a Parenting Order if you and the other parent cannot agree on the issue of the relocation of the children. If you do have a parenting order in place, you can seek to change or vary the existing parenting orders, or if the other parent agrees to the relocation, discharge them and start over again if the other parent agrees. 

How to best approach relocation with children
All successfully negotiated relocation cases have started with good planning and are well organised. If you are looking to relocate you must have everything prepared and be aware that the Court might order you, as the moving parent, to be more responsible for the cost of the child’s transport needs
If you are the relocating parent, you need to prepare and demonstrate that you can continue to facilitate the child’s relationship with the staying parent. In terms of planning you should have schools, accommodation and transport fully investigated. It is important to be ready to present evidence of what the children’s travel arrangements will be (such as airline flights) and the costs involved. This, of course, will be difficult evidence to have at the moment given the state of the aviation industry and border closures as a result of the pandemic. As the relocating parent, it may be that the bulk of the children’s travel costs may well fall to you.
It is wise not to relocate without the express agreement of the children’s other parent. To ensure you minimise risk in your negotiations and actions, speak to a family lawyer to seek some initial advice. They are best positioned to help you to navigate your way through the process successfully.

DDCS Lawyers specialise in all aspects of family law and can help guide you through the process of relocating. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
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Tips to navigate Christmas for separated families

If you are a separated parent and do not yet have a clear plan about who will have the children on particular days over the Christmas and school holiday period, this article has been written with you in mind.  
Navigating Christmas as a separated family can become stressful, so we have compiled some tips to help you avoid the common mistakes people make at this time of year, so you can have an enjoyable Christmas as a separated family.
Why getting started is important
Every year parents come to us seeking advice because they have been unable to reach an agreement with their former partner about who will have the children and when over the Christmas period. 
Plan as far in advance as you can.  Working out who will have the children, when, can be difficult to organise and if left too late in the piece, it can cause unnecessary anxiety for everyone involved.
Get started now to avoid the risk of the worst-case scenario. Let’s say you and your child’s other parent are unable to come to an agreement despite a number of attempts. If you are at an impasse, and if you require a Court to decide, there is a deadline for filing your application. That deadline is always set as the second Friday in November.
The Court is particularly busy at this time of year, and that has been made worse this year because of the extra demand on services created by the Covid-19 pandemic.  The absolute latest date to file your application this year is Friday 13 November. The Court may refuse to urgently list any applications filed after that date, so families who leave their planning too late, can find themselves without a pathway to resolve their parenting arrangements.
Negotiating with your child’s other parent
If you cannot come to an agreement between yourselves you might consider engaging with a mediation service. A mediator is an impartial trained dispute resolution person who brings parents together with the express goal of assisting you to come to an agreement.  The most common outcome from mediation is a Parenting Plan. It is good as a stopgap to establish a plan for Christmas and to determine what should happen through the school holidays including travel arrangements.
Alternatively, you may wish to speak to a lawyer to seek advice about how to best approach your negotiations and minimise the risk of going to Court.
What is the process?
If you can reach an agreement, some families are content to rely upon their verbal agreement.  Of course, if tension arises at any point, people can change their minds about that agreement. This can create additional stress and conflict.  
For those who need a little more certainty, consider a Parenting Plan. It is a document that outlines the agreed arrangements and is signed and dated by both parents and can be prepared quickly. A Parenting Plan is a construct of the legislation and can be considered by a Court and Government Agencies such as the Child Support Agency. It is a legally admissible document as evidence of what is agreed at a point in time, but it is not legally enforceable.

The third pathway is to seek Orders. Orders are legally enforceable. There are two types of orders:
A Consent Order is made by agreement and sets out in legally enforceable terms, the details and obligations each party has accepted.  That document is then provided to the Court (with another document setting out relevant background) and will (hopefully) be approved by a Registrar and made into consent orders.   A Judge made Order, made after a hearing has occurred and where a Judge is asked to decide what Orders should be made, in the best interests of the children.  
Tips When Trying to Negotiate
We help families negotiate these matters every day and can share our insights into what we know works for separated families. When you meet to determine your plans for the children over the Christmas and holiday period, consider these things.
If you are sharing Christmas Day, consider the impact on the children. Little ones tire quickly with the excitement of Christmas (many waking early too!) and may not “last” to the end of the day.  It is ideal if you can limit the number of handovers they experience and consider travel time – spending a lot of time in the car is less than ideal.If your children are at an age where their views should be taken into account, you might ask them how they see their Christmas unfolding. This can be a good starting point and can make negotiations more focused on what will make your child’s Christmas enjoyable.  But be careful not to place pressure on children to respond in a way that might meet your preferences and recognise they may miss the idea of the way Christmas used to be.Be respectful of the other parent’s traditions over Christmas and accommodate the spirit of giving. For some people, Christmas Eve is the big event and Christmas Day is less important to them. Some flexibility and generosity at this important time of year may encourage more co-operation for future discussions.
But what happens if you both want the same time? 
What tends to work well in this instance is an alternate year approach. One parent has the desired time this year and the other will have that time the following year. That is reversed the following year and swapped every alternate year.
Often we see Christmas Day cut in the middle somewhere. One parent might have the children from midday on Christmas Eve through to mid morning on Christmas Day, with the other parent then having the children from mid-morning to Boxing Day. 
In families where people are interstate there will sometimes be an agreement that they get the week of Christmas every alternate year. It is really about what suits you and your children best.
Get started
If you can’t reach an agreement about your parenting arrangements for the Christmas period, secure a mediation service quickly so you minimise the risk of having to file an application to the Court. We can assist you in your negotiations and to formalise your Parenting Plan or to have Consent Orders made. Christmas need not be a stressful time for you, so if you haven’t already, do start your negotiations early.

DDCS Lawyers specialise in all aspects of family law and assist with the creation of Parenting Plans and Consent Orders. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
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How to avoid disputes about your will

Most of us would have heard at least one horror story about a will dispute. Some of us have even gone through it before and will know that these types of disputes can get ugly and at times even break families apart.
What you might not know is that in a lot of instances the dispute could have been avoided with appropriate estate planning advice at the time of making the will.  When you choose a specialist lawyer to assist you with preparing your will they can properly assess potential disputes and put in place strategies to minimise the risks. 
In this article, I share insights from my experience as a specialist estate planning lawyer into the more common disputes that arise and how you can look to avoid them.
Common types of estate disputes
Perhaps the most common dispute arises in circumstances where the will does not make adequate provision for certain beneficiaries who are eligible to make a claim against the estate under relevant family provision legislation. These claims are particularly prevalent where there is a blended family. Whilst it is not always possible to avoid a claim being made, with appropriate planning it is possible to minimise the risk. Being aware of who is eligible to make a claim; having knowledge of the financial position of potential claimants; having an appreciation of the likely outcome of a potential claim; and getting advice on how to address the risk is critical at the time of making the will. Not all assets are estate assets. For example, assets held as joint tenants; superannuation; and trust assets will not necessarily fall into the estate and it may be possible for the will maker to organise their affairs so as to reduce the size of their estate. Different considerations and strategies to minimise risk will apply depending upon where assets are located. There are particular issues for assets which are located in NSW. Family provision claims are costly and will far outweigh the cost of obtaining expert advice at the outset. 
One type of dispute that we see regularly involves co-executors who don’t see eye to eye and are unable to reach agreement on a range of issues relating to the administration of the estate. This is particularly the case where the executors are related (often siblings) and are also beneficiaries. Parents often feel that they need to appoint all, or more than one of their children as executors so as not to be seen as favouring one child over another. In some cases they appoint more than one child even when they are aware of an existing conflict between them. Asking the right questions at the outset about the family dynamics and explaining the role and obligations of being an executor will often head this potential problem off at the pass. 

We are often faced with disputes as to the validity of a will on the grounds of the cognitive capacity of the willmaker at the time that the will was made. Such disputes can often be avoided if the person preparing the will (often a solicitor) ensures that appropriate steps are taken to assess the capacity of the willmaker. If the will maker does not have capacity then it may be appropriate to make an application to the court for a statutory will.   
Other disputes have their genesis in poorly drafted wills which contain ambiguities which may require the Court to either interpret (construe) the will or in appropriate circumstances to rectify the defect in the will. Again disputes of this kind can be avoided if expert advice is taken at the time of the will being made.
Executors behaving badly
Disputes can also arise where the executor is either tardy in getting a grant of probate and administering the estate or fails to administer the estate in accordance with the provisions of the will. Problems in this area are often exacerbated where the executor is also a beneficiary and conflicts of interest arise between their role and obligations as executor and their interest as a beneficiary. There are a range of remedies available to beneficiaries who are impacted as a result of an executor behaving badly. Ultimately, the Court has the power to remove an executor and to appoint someone else to administer the estate. This can come about by agreement between the interested parties or by order of the Court following a contested hearing. I have recently been appointed by the Court  to administer 2 estates in cases where the original executors could not agree about fundamental issues in the administration of the estate and as a result the process had stalled. In both cases the executors were siblings who did not get on. Sensibly, in both cases they reached an agreement to all step down and appoint an independent administrator. As mentioned earlier this situation might have been avoided with better planning at the outset.
How to minimise the risk of disputes
The best way to minimise the risk of an estate dispute is to consult a specialist wills and estates lawyer at the outset. Our team will be able to direct you and tell you of the likely instances of what could go wrong and what it could lead to if you do not get it right. This will help you to make wise choices and reduce the risk of conflict arising after you have passed away.
Related: When the capacity of a will-maker is in doubt 
How to resolve estate disputes without going to Court
When superannuation doesn’t end up with the people it was intended for: blended families & government super
Why you need to check your superannuation death benefit nominations

The DDCS wills and estate planning team are highly experienced and specialise in helping people navigate issues like these. To discuss your circumstances, phone our team on (02) 62127600 or fill in the contact us form and our team will be in touch.
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DDCS Position Available: Family Lawyer

JOIN OUR TEAM: We have a Family Lawyer role currently available at DDCS Lawyers. We are seeking a Family Lawyer (3-5 years PAE) to join our Canberra based firm. 
Our firm has been recognised by Doyle’s Guide as a First Tier firm in both Family Law and Wills & Estates. We represent a wide range of clients in matters including clients with complex parenting and property matters. A number of our clients are involved in international disputes..

Snapshot of the role
Excellent remuneration & work environmentCareer progression opportunities including obtaining Specialist Accreditation in Family LawMentoring by Family Law Market LeadersOpportunity to work on  complex parenting and financial mattersFlexible working arrangements

See the full job advertisement here

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Separation and parenting: What is a parenting order?

One of the most important considerations for separating parents is ensuring that the care arrangements optimises the welfare and stability of their children and  their relationship with both parents continues. For all of the family the separation is a stressful and emotionally charged period. It  is important for parents to have appropriate mechanisms in place so that the children’s needs are prioritised. 
In this article, we take a look at when a parenting order might be used as that mechanism. We explain the nature of a parenting order, and when they might be useful in families.
What is a parenting order?
Some separating parents part ways amicably reaching agreement about the care of children in an informal way, without ever needing to document or formalise those arrangements. In other cases parents will agree to a Parenting Plan, which is a written document setting out parents’ agreements for their children’s arrangements. Unlike Parenting orders, Parenting Plans are not enforceable. 
However, these options don’t work for all families. In some cases Parenting Orders are required because it is necessary to have certain and enforceable arrangements in place.  
Parenting orders are Court orders made by a Family Law Court. Parenting Orders can cover a myriad of issues including  detailing: 
Information about how parents will exercise their parental responsibilities and how they make long term decisions (about things like schooling, religion, medical decisions) about their children. 
Where the children live, and how much time they spend with each parent.
How the children will spend special occasions with each parent and when they will move between households. 
How and when parents will communicate with their children when the children are not in his or her care, and how parents communicate with each other in relation to the children.
The communication parents have with other parties, including the children’s schools and medical practitioners.
How children divide their school holiday time with their parents, including issues like obtaining passports and where they may travel.

Management of risk issues, such as the behaviours parents can and cannot display around their children and the other parent including any risk issues such as discipline, alcohol and drug use, and safety issues).
When are parenting orders best used?
Often parenting orders set out the specific default arrangements used when parents are unable to reach agreement. They are utilised when co-parenting relationships are difficult, or where a greater level of certainty is required. Properly drafted they are a useful, enforceable tool to minimise the risk of future disputes. Take for example children’s birthdays, Christmas time or Mother’s and Father’s Day. In the event parents cannot agree about what would occur on those days, the parenting orders will provide clear and certain details about what is to happen and when.
Orders are also advisable when families are required to manage risks which might befall their children – for example, an order might state that a parent must not drink any alcohol when their children are staying with them giving the concerned parent assurance and security that the child or children will be safe in the care of the other parent.
How do you get a parenting order? 
There are two different ways to get a parenting order and in each case it is wise to obtain prior advice from a specialist family lawyer.
Parents can enter into Parenting Orders by consent if they each agree to obtaining orders. In this process, no one appears before a Court or speaks to a Judge, and the application for parenting orders is a paper-based application. We refer to these types of orders as consent orders. This is not to say that the Court ‘rubber stamps’ the proposed orders. No Parenting Orders will be made by a Court unless the Court determines that the Orders are in the best interests of the children, having regard to specific criteria set out in the Family Law Act (1975).
When parents cannot agree, Parenting Orders will be made by a Judge in circumstances where the parents have Court proceedings. A Judge-made Parenting Order will only be made after the Judge has heard evidence from both parents and any relevant witnesses, including any expert witnesses such as a psychologist or psychiatrist.
In both cases, parenting orders are enforceable, creating legal obligations for each parent to comply with. There can be serious consequences for parents who fail to comply with his or her obligations, involving Court action, penalties and in extreme cases, the Court deciding that the children should have little or no time with the non complying parent.
How to enforce or change a parenting order
Final parenting orders generally remain in place until a child turns 18. However, parents can agree to change their children’s arrangements (for example, a lot of parents recognise that the orders they had in place for their children before they attended primary school are no longer best for high-school aged children) either with new orders, a parenting plan or by agreement between them. 
While parents can agree to change orders at any time themselves, Final Parenting Orders are harder to change if there is no agreement. If a parent applies to the Court for a change in previous parenting orders, the Court has to first be satisfied that there has been a significant change of circumstances before considering whether the original orders should be changed. A significant change of circumstances could be, for example, if something happened in a child’s life that makes the existing order difficult to comply with or is no longer in the child’s best interests for some new reason. In those types of cases, the Court may make new orders changing the old orders and the old arrangements. This is a complex and difficult area of law, and it is always best to obtain specialist legal advice in relation to changing parenting orders before making these types of Court applications.  
DDCS Lawyers specialise in all aspects of family law and can assist you with the development of a parenting plan or parenting orders. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.

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DDCS Positions Available: Wills and Estates Lawyer and Paralegal/Legal Assistant Role

JOIN OUR TEAM: We have two roles currently available at DDCS Lawyers. We are seeking a Wills and Estate Lawyer (3-5 years PAE) and a Paralegal/Legal Assistant to join our Canberra based firm. 
Our award winning team of specialists provides high level legal services guided by a strong culture and client service excellence.

Snapshot of the roles and responsibilities
Wills and Estate Lawyer
Excellent verbal and written communication skillsStrong advisory skillsSuperior negotiation and advocacy skillsExcellent time management and organisational skillsA friendly, positive attitude and demonstrated ability to work collaborativelyA willingness to contribute to business development.

See the full job advertisement here

Paralegal/Legal Assistant
Preferably two years’ experience as a Paralegal/Legal AssistantExcellent verbal and written communication skillsAn ability to communicate effectively with clients, Courts and other practitioners in a professional mannerSuperior time management and organisational skills with an ability to handle multiple tasks at the one timeA friendly and positive attitude

See the full job advertisement here

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When the capacity of a will-maker is in doubt

When someone comes to a lawyer to make a will, it is important that we ensure that the will-maker has the mental capacity to make their will. The mental capacity that the will-maker must have is called ‘testamentary capacity’. We need to establish that the person having the will prepared is aware of what the document is and what a will does, what property they have, and who they should consider in making their will. 
In this article, we explore what the lawyer’s role is in assessing capacity, how testamentary capacity may come into question, what will happen if capacity is in doubt, and the key principles of capacity.
The lawyer’s role in assessing capacity
The lawyer’s role is to carry out a legal, not medical, assessment of our client’s mental capacity. Lawyers are not meant to be experts in neuroscience, but they do have an obligation to assess whether the client has the legal capacity to make a will. A medical opinion may however assist the lawyer in performing their legal assessment of capacity. 
There is a legal test for elementary capacity. It is basically four questions that a lawyer has to ask themselves when assessing their client’s capacity to make a will. Those questions are:
Does the client understand the nature and effect of making a will, i.e., what a will is and what it does?Does the client understand the nature and extent of their assets and liabilities? Does the client understand who might have a claim on their estate or the people to whom they have an obligation? Is there any disorder of the client’s mind (such as dementia, untreated mental illness, a brain injury, or other cognitive impairment) which is affecting the way they’re thinking about disposing of their assets?
If the lawyer is satisfied that the answer to the first three questions is ‘yes’ and that there are no apparent “disorders, then they can make a legal finding that their client has testamentary capacity. 
How capacity can come into question
When a client visits us, it is our job, no matter who the client is, to form a view about capacity. Capacity is always presumed, but sometimes there will be certain factors or ‘red flags’ which mean that we have to explore the issue more carefully. None of these factors in and of themselves mean that capacity is not present. These may include:
– There is an active diagnosis of cognitive impairment 
– There is an active diagnosis of cognitive impairment 
– Memory loss, confusion, disorientation
– Difficulty communicating, asking appropriate questions, or responding to questions
– The client is sick, in hospital, or in aged care

– The client is accompanied by friends, family or carers who are reluctant to let the client speak for themselves
– The client’s instructions have changed dramatically or unusually
What happens when there is doubt about capacity
If red flags arise and a lawyer is unable to make a positive finding of capacity, then the next step would be to refer the client to a medical professional for a medical capacity assessment.
That medical professional must be someone that has experience in the assessment of cognitive capacity. It is not enough to just get a letter from a GP. Ideally, we would like the report to be from a specialist doctor with expertise in assessing testamentary capacity. This might be geriatrician or a neuropsychologist. We will prepare a careful brief to the doctor asking them to give their medical view about whether the client has capacity to make not just any will, but the particular will in question. 
The final report will assist in making a final judgement about whether the client has the requisite capacity to make decisions about their will, but will not necessarily be determinative. Sometimes the answer will be yes, they have the capacity. Other times the answer might be that they have the capacity to make only a simple will.  It may be decided that the client does not have the capacity to make a very complex will with a raft of complex structures, like testamentary trusts and so on. But they may have the capacity to make a simple will because the capacity is decision-specific. 
If a specialist physician thinks that the client does not have the capacity to make any kind of will, the next question is, what can be done? Are there treatment options? Or could a change in environmental factors  assist the client in regaining capacity? It may well be, for example, if mental illness is the issue, there may be medications and treatments that can assist in regaining capacity. If the client has significant hearing problems, we really slow down and take our time to ensure that we are speaking slowly and clearly, whilst minimising background noise. There may be times of the day that suit the will-maker more than others. 
There are all sorts of reasons why a client might not understand, and sometimes things can be done to assist the client in having the capacity to make their own decisions. It is important to explore every possible avenue to give them the autonomy to make their own decisions.
When there is no prospect of regaining capacity
In a situation where a client does not have the capacity and there is no prospect of regaining capacity, then lawyers may need to seek the appointment of a substitute decision-maker. For a will, this may mean obtaining something called a Statutory Will from the Court. The Court has the power to make a will on behalf of somebody who does not have the capacity to do so.
Disputes over testamentary capacity
If a will maker dies and there is a question about whether they had capacity, it can give rise to a legal challenge to the Will by an interested party who may assert that the Will should be set aside or effectively ‘cancelled’ because of a lack of capacity. A careful assessment of capacity at the time of making the will can protect the estate and the intended beneficiaries in the event of this kind of challenge by a disgruntled family member or other potential beneficiary. 
Key principles of capacity
If capacity does come into question, we make sure the will-maker is given every opportunity to make their own decisions. It is paramount that the will-maker is given the dignity and autonomy of making their own choices, wherever possible.
The lawyer should keep the following key principles in mind when performing their capacity assessment (Source: The Law Society of NSW, ‘When a Client’s Capacity Is In Doubt – A Practical Guide For Solicitors’, Sydney NSW, p.6):
Always presume a person has mental capacity.
Mental capacity is decision specific – if the client can make some but not all decisions then they have a right to make as many decisions as possible.
Mental capacity is fluid. It is possible to lack capacity one day and have it the next. 
Don’t make assumptions that a person lacks capacity because of their age, appearance, disability or behaviour.
Assess a person’s decision-making ability – not the decision they make.  Lawyers cannot form a view that the client lacks capacity just because they think that the client is being reckless, strange, or inconsiderate.
Respect a person’s privacy.
Substitute decision-making is a last resort.

The DDCS wills and estate planning team are highly experienced and specialise in helping people navigate issues like these. To discuss your circumstances, phone our team on (02) 62127600 or fill in the contact us form and our team will be in touch.
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Taxation of Minors and Testamentary Trusts – Change to Tax Law

Section 102 AG of the Income Tax Assessment Act (1936) has just been amended.
This amendment will have tax implications for existing Testamentary Trusts and people with testamentary trust wills where minor beneficiaries (such as children or grandchildren) expect to receive distributions of income.  
Why does this matter?
Section 102AG deals with how trust income is taxed in the hands of minor beneficiaries.
Generally, a penalty tax rate of the top adult marginal rate is imposed on minors as a disincentive to adults diverting income to them in order to pay less tax themselves. This currently means children will pay 47 cents in the dollar for every dollar above $1,307 received in a financial year.
However, some income is exempt from such treatment. Historically, income paid from a Testamentary Trust created by a will to a minor is considered ‘exempted trust income’ and doesn’t incur penalty rates.
This makes a Testamentary Trust a very useful planning tool for some will-makers who can establish these structures in their wills. They can be used, for example, either to a) allow the will-maker’s minor children to benefit from the trust without being penalised; or b) allow the will-maker’s adult children to less tax by streaming income from the trust to their spouses and minor children, rather than paying tax at their own marginal tax rates.
What has changed?

Section 102AG has now been changed so that it only applies to income derived from property transferred into the Testamentary Trust directly from the estate of a deceased person.
This means that property that is unrelated to the deceased estate (such as money or assets transferred into the Testamentary Trust by another person after the death of the Willmaker) will generate income that is not exempt from penalty tax rates.  
Furthermore, classes of beneficiaries not included by the deceased in their Will can’t be added later to receive exempt income.
Perhaps most significantly for estate planning, exemptions won’t apply to income generated by property transferred into an existing testamentary Trust (say, created on the death of one parent) when the second parent dies.
Does this mean that I shouldn’t use a Testamentary Trust in my Will?
Probably not. A Testamentary Trust remains one of the most useful structures in estate planning to avoid inadvertent taxation consequences, provide asset protection benefits to your adult beneficiaries (such as a spouse or adult children) in the event of their relationship ending or bankruptcy, and to provide for minor children.
However, if any of the following apply to you, you should consider seeking advice from your estate planning lawyer about whether your Will needs to be updated:
My partner and I have minor beneficiaries (such as children or grandchildren) and we have established a Testamentary Trust/s in our Wills to look after them if we die.
My partner and I have adult children who have or will have children of their own, and we have established a Testamentary Trust/s in our Wills for our adult children.     
My Will establishes a Testamentary trust for my partner, and I also have adult or minor children.

The DDCS wills and estate planning team are highly experienced and specialise in helping people navigate issues like these. To discuss your circumstances, phone our team on (02) 62127600 or fill in the contact us form and our team will be in touch.
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What can I do to escape domestic violence?

In Australia 1 in 6 women and 1 in 16 men have experienced physical or sexual violence from a current or previous partner. According to the Australian Institute of Health and Welfare, every 9 days a woman is killed and every 29 days a man is killed by a partner. Domestic violence is also one of the main reasons women and children become homeless in Australia. 
Our domestic violence rates are simply horrifying. Domestic violence is a major national health and welfare issue. The essential policy discussion about what to do in the face of these appalling statistics continues.  
Domestic violence can also manifest in insidious and less outwardly obvious ways, including through persistent control of the other party, down to frequent “checking in”, wanting to know their movements, who they see, or speak to, what they are doing and where they are at any given point.  Financial control, including limiting access to money, can be another form of family violence.
For victims of domestic abuse, the situation is usually complex, and choices can feel limited. In this article, we share with you some of the support available in our community and where you can get help. 
Why people do not leave family violence situations

By its nature, violence and other forms of domestic abuse, within a family is private. For many, the first instinct may be to try to “keep it within the family” and to find solutions yourself. Victims may try to rationalise the situation (it is not that bad, or if I don’t provoke him, it won’t happen again). They may believe it is only happening to them because their partner is stressed or under a lot of pressure. A range of factors may influence the occurrence of family violence but the perpetrators of family violence are making a choice about how they respond to circumstances in which they are placed. It is not the responsibility of the victim to “fix” the problem. 
The realisation that what you have been experiencing is not okay and that it is family violence can be confronting and may require some adjustment. Victims can sometimes feel reluctant to acknowledge what has been happening to them.
Where to find help
Here in Canberra where our firm is based, we have the Domestic Violence Crisis Service, who are able to triage and refer people to the right support service for them (including emergency accommodation options). Their programs include interventions and behaviour change programs for men who want to learn not to engage with violence.  
Women who can’t afford private legal advice but who may not qualify for legal aid, can engage the Women’s Legal Centre for urgent or ongoing legal advice and support
The police are trained to respond urgently to calls for assistance and will take steps to ensure the immediate safety of family members, including making arrests if necessary. The police will also make referrals to other services.  
At the ACT Magistrates Court, urgent applications for family violence orders can be made, including after hours (with the help of the police). Those orders (often excluding the other party from making contact with or approaching the protected person) are an essential part of the formal tools available to assist victims of family violence. In Australia, we now have a system of national recognition of family violence orders, ensuring the orders will be acted upon by police in other states, as necessary.  
How family lawyers assist
Understanding the incidence of family violence and being able to support our clients to be able to take steps towards their protection (and for the protection of their children) is a fundamental part of the role of a family lawyer.  We need to be able to engage sensitively with our clients about these complex matters and to ensure that careful risk assessment occurs. The threat of family violence and its persistent consequences will likely continue throughout a matter and the making of a family violence order or injunction seldom means that the risk is resolved.  
We know from information gathered by the Family Law Courts that about 70% of cases before the courts will include allegations of family violence. Where delays in the courts can result in cases taking up to 2 or 3 years to reach a final hearing, managing the risk can be complex.  Safety plans (to better ensure the practical safety of the victim at court) are an essential part of this process and your family lawyer should engage with the court to assist you. The court will also agree, in certain circumstances, to ensure the conduct of hearings occurs in such a way that the vulnerable party and the alleged perpetrator of the violence are not in direct contact with each other.   
Separating under urgent circumstances can also create significant financial pressures. Your experienced family lawyer can also advise you about options for obtaining urgent financial relief, including from the other party (such as orders for spousal maintenance) or helping you to access joint funds or property.  
Find a family lawyer who engages in continuous learning about family violence, how it is manifest and how we can better respond to it, for the benefit of our clients. 
If you or someone you know is in need of legal advice surrounding domestic violence, please get in touch. If there is an immediate danger please call the police.

DDCS Lawyers specialise in all aspects of family law and can help guide you through the difficult process of separation. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
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2020 Doyle’s Guide Awards Announcement for Wills and Estates Lawyers in Canberra, ACT.

The latest Doyle’s Guide to the Australian Legal Profession for Wills, Estates and Succession Planning was released in August 2020. DDCS Lawyers has again been recognised as a Leading Firm in the 2020 Doyle’s Guide Awards for Wills and Estates Planning and Wills and Estates Litigation in the Canberra/ACTlegal market.
Doyle’s Guide is a peer-reviewed listing of the best firms and lawyers across Australia. As with previous years, DDCS Lawyers and our individual lawyers have been recognised by Doyle’s Guide across a number of professional fields.
 
 

Phil Davey has been recognised as a Preeminent Wills & Estates Litigation Lawyer in the ACT. Phil has also been awarded as a Leading Wills, Estates & Succession Planning Lawyer.

Rebecca Tetlow has been recognised as a Preeminent lawyer in two categories – Wills, Estates & Succession Planning and as a Wills & Estates Litigation Lawyer.

Theresa Dowling has been recognised as Recommended lawyer in two categories – in Wills, Estates & Succession Planning and as a Wills & Estates Litigation Lawyer.

In addition to these individual awards, we are proud to be listed as a First Tier Law Firm in two categories:

Leading Wills & Estates Litigation Law Firm
Leading Wills, Estates & Succession Planning Law Firms

Doyle’s Guide Award Links
Leading Wills, Estates & Succession Planning Law Firms – Canberra 2020 
Leading Wills & Estates Litigation Law Firms – Canberra 2020 
Leading Wills, Estates & Succession Planning Lawyers – Canberra 2020 
Leading Wills & Estates Litigation Lawyers – Canberra 2020

The awards received by our Family Law team were announced in June 2020 and can be found here.
DDCS Lawyers are highly experienced and specialise in Wills and Estate planning and estate disputes. Our team can assist with probate and deceased estate administration, enduring power of attorney, testamentary trusts and elder law.  If you need assistance, contact our team on 02) 6212 7600 to book a consultation.

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Why testamentary trusts are not only for the wealthy

As estate lawyers, we often have clients come in to make a Will and they have not heard of testamentary trusts. Or if they have heard of them, they assume they are overly complicated or just for those that have significant wealth. 
When you take into account the value of your family home and any superannuation and life insurance you have, it is not uncommon for the average family to have substantial sums being transferred down to the next generation. A testamentary trust gives your children the maximum flexibility and protection following your death so it is worth discussing with a professional to determine whether it is something that may suit your needs. 
In this article, we look at what a testamentary trust is, some of the advantages of this type of trust and when it might be suitable for you and your beneficiaries. 
What is a testamentary trust?
It is a discretionary trust that is set up by a Will. In a standard Will without testamentary trusts, your beneficiary receives their inheritance directly and then decides how the money is invested or spent. The beneficiary pays income tax at their marginal tax rate on any investment income they earn from the inheritance. Plus if they have a relationship breakdown or insolvency, their inheritance is part of their pool of personal assets. 
By contrast, a testamentary trust involves a trustee holding the inheritance on trust for a number of potential beneficiaries identified in the Will. The trustee then has the discretion to regularly distribute the income and capital of the trust between the potential beneficiaries.
What are the advantages of a testamentary trust?
There are a number of benefits a testamentary trust can provide including protection from relationship breakdown and bankruptcy, as well as tax planning opportunities. 
By having a testamentary trust set up for your beneficiary (say, your child), their inheritance can be protected from divorce as the trust keeps your child’s inheritance separate from their own assets. If you are particularly concerned about a relationship breakdown, we can customise a testamentary trust to provide the maximum protection for your beneficiaries.
A properly designed testamentary trust can provide important protection for your intended beneficiaries. The assets within the testamentary trust are segregated from the beneficiarie’s personal assets and will be protected if they get into financial difficulties or become bankrupt.
Additionally, a testamentary trust provides considerable opportunities to minimise the tax that would otherwise be payable by your principal beneficiaries. The trust enables the trustee to distribute income between beneficiaries in such a way as to manage the total income tax payable by the group. This is particularly beneficial if minors are beneficiaries, because when minor children receive income from a testamentary trust, they are taxed on that income as adults and enjoy an adult’s tax-free threshold.
Should you consider a testamentary trust?
Determining whether a testamentary trust within your Will is something worth considering is usually based more on the circumstances of the intended beneficiary rather than the will-maker themselves. We cover off some of the major considerations for when this type of trust might be suitable. 
When significant wealth is being passed on
If a considerable amount of money is going to be inherited, this makes the sophistication of a testamentary trust worthwhile in terms of wanting to protect the assets that are inherited and in terms of the tax benefits. 
If a beneficiary relationship is at risk of breaking down
A testamentary trust should also be considered if you are concerned about any of your children or intended beneficiaries going through a relationship breakdown. Even if there is no current risk and a relationship looks stable right now, statistics tell us that relationships do break down fairly often. 
So considering asset protection for your children is worthwhile, particularly from a business point of view. For example, if you are running a business and want to protect assets from being held in your personal name. When your children have their own children a testamentary trust provides opportunities to share income within the family group and get the tax benefits.  
If you want to have some control around how the inheritance is spent 
You might want to put some controls or checks and balances in place around the ongoing use of your inheritance.  So for example, the terms of the testamentary trust might ensure your children do not just spend all the money in one go. With a trust, you can put some restrictions or time frames around the use of inheritance. 

Providing flexibility for your beneficiaries
Upon your death, the trust will be set up so there is nothing that needs to be administered before then. All that needs to happen is that you have your lawyer include the relevant terms in your Will.  Most clients include a testamentary trust in their Will to give children extra flexibility. Rather than putting restrictions in place, it is about giving extra options. 
The variables when it comes to testamentary trustsIs the trust mandatory or optional? 
There are a number of variables that can be adjusted in terms of having testamentary trusts in your Will. One of the important things to note is that your lawyer can make the testamentary trusts optional for the beneficiary. Provided that you are happy to do so, your child could choose not to use a testamentary trust after getting tax, financial and legal advice and instead take the inheritance into their own hands following your death. But for your children to have that option, the terms must be included in the Will. It cannot be set up after your death.
Age can often be a consideration here. For most of our clients, they want their children to reach a particular age, such as 25, to then be happy for their children to choose to opt-out of the testamentary trust. But there might be circumstances in which parents require their children to use the testamentary trust and prefer to have the funds drip fed over time to the beneficiary. 
Does each beneficiary have their own trust?
One of the variables that can be provided for includes whether each intended beneficiary has their own separate testamentary trust, or whether there is one trust for all the intended beneficiaries. Most people prefer each beneficiary to have their own separate testamentary trust so that the beneficiaries are not financially tied to each other. 
Who is the trustee?
Another variable is who the trustee is of each testamentary trust. In most cases, a parent would want their child as the trustee of their own testamentary trust so that the intended beneficiary is in control of the inheritance. But occasionally parents may want to appoint a co-trustee with their child or may wish to appoint other trusted people as trustees of that testamentary trust. This will depend on your objectives and the level of asset protection you are looking to achieve.
One thing that is popular for our clients is for younger children is to have a staged passing of control.  So, for example, to allow the child to become a co-trustee with another trusted family member say at the age of 21. Then once they reach 25 they have the option to then take over or control the trust. 
This allows for a gradual increase in responsibility to ensure the child has continuous and ongoing support and accountability. So it might be an option to have a co-trustee if, for example, you think your child needs a bit of extra help with financial management or there are strong reasons why that child should have asset protection. The best approach for you will depend on your objectives and the particular circumstances and dynamics of your family.
Who are the beneficiaries?
The potential beneficiaries of the testamentary trust is another variable to consider. Your Will sets out who may receive distributions from the trust, but being named as a potential beneficiary does not give the potential beneficiary a fixed entitlement. Instead, it just creates a list of people to whom a trustee may choose to distribute income and capital from the trust. This could either be a broad range of family members and related entities or the will-maker might choose to limit it only to their direct descendants. 
As experienced estate planning lawyers, we can discuss your wishes and guide you through your options to create a Will with testamentary trusts that suit your circumstances. Your beneficiaries can only enjoy the advantages of a testamentary trust if you provide for this in your Will because a testamentary trust cannot be inserted into a Will after your passing.

The DDCS wills and estate planning team are highly experienced and specialise in helping people navigate issues like these. To discuss your circumstances, phone our team on (02) 62127600 or fill in the contact us form and our team will be in touch.
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Who pays the mortgage when you separate in Australia?

‘Who should pay the mortgage when we separate?’
Issues regarding who should pay the mortgage payments on the family home or other properties which form part of the property pool, frequently arise between separating couples. The issue often  needs to be resolved if there has been an increase in housing expenses, for example if one party moves out of the matrimonial home and rents an alternate property.
When the mortgage payments become an issue
Sometimes, the person who leaves the home believes that they shouldn’t be required to contribute to the home loan payments anymore because they are now paying for their own separate housing expenses. This is not necessarily a correct assumption.   
It can certainly be challenging trying to meet the costs of separate households and pay for all of the additional expenses that come with it, especially if there are children involved. The need to negotiate the payment of the mortgage is often one of the most urgent financial issues that arises on separation. This negotiation can be difficult because of the circumstances of the relationship breakdown and even more fraught if there are issues of lack of trust in financial matters between the parties. 
Who pays the mortgage? How it is figured out.
Many separating couples are able to successfully negotiate the contribution each should make to housing expenses between the two homes on an interim basis. If both parties are co-borrowers, they each have personal obligations to the bank to meet the monthly loan repayments. Default can affect the credit rating of the borrowers and / or lead to a forced sale. If they are unable to reach an agreement, family lawyers can assist them. 
As family lawyers assisting clients through this process, we carefully examine all sources of income of each party and their reasonable living expenses including rent on the substitute premises, and day-to-day expenses including their child support obligations, other liabilities such as motor vehicle expenses, and special expenses such as private school fees. 
Sometimes the party who remains in the home may have insufficient income to make any contribution to the mortgage payments, for example if they are not working and caring for children. In these cases, they will be reliant on the other party to not only meet the expenses of the new rental property, but also the mortgage on the family home. 
However, mortgage payment disputes do sometimes lead to litigation. The Court will require full disclosure of the income and expenses of each party and their overall financial position including care of children in determining the dispute.  In doing so the Court will undertake some scrutiny of the reasonableness of the expenses asserted by each party. For example if the party who has left the home enters into a lease for a luxury apartment and the family is left in financial strain as a result, the Court will not treat the rental of the apartment as a reasonable expense and will only allow a more modest rent amount as one of the necessary expenses of that party.  
To avoid litigation, it is very important that people negotiate calmly and preferably maintain the usual mortgage payment arrangements, including the usual direct debit payments and redraw facilities. It is not advisable to access funds available on redraw facilities unilaterally, as this will often lead to urgent court action for orders for restitution of the funds to the redraw account. Further it is inadvisable to make rash decisions about expensive alternate accommodation.  
Many parties leave the existing arrangements for mortgage payments in place while they are negotiating their property settlement. If one party pays a disproportionate amount of the mortgage after separation, this can usually be adjusted between the parties in the property settlement or spouse maintenance negotiations.  

Many couples who have separated since the start of the COVID-19 have deferred their mortgage payments for 3 to 6 months. While this  brings about a short term reprieve, it is essential they have agreements in place with each other, or appropriate Court orders if required, as to who will be responsible for the payments when they resume. Many will face higher mortgage payments at the end of the deferral period and an increased loan amount.
Our goal as family lawyers is to have people come to a settlement so that they can meet their own household expenses from their income and resources, including any mortgage payments they decide to take on after settlement. 
Additional properties or business secured over the family home
It is common for business loans to be secured over the family home by way of collateral mortgage, even if only one of the home owners is involved in the business. It is crucial to obtain a full understanding of the capacity of the business to maintain the loan payments secured over the home as soon as possible after separation to minimise the risk of default on the loans. Family lawyers can assist in ensuring all loans are met pending a property settlement being reached. 
What happens to the mortgage on settlement 
If a person wishes to retain the matrimonial home as part of a property settlement, that person  will  be required to refinance the loan into their own name at the time the home is transferred to him or from joint names. Once that occurs, the finances of the separated couple are no longer intertwined. 
If neither party wishes to retain the home or cannot afford to maintain the loan repayments after settlement the home will be sold. Again agreement will need to be reached in relation to the contributions to the mortgage payments until the completion of the sale.
The negotiations become much more complex when the loans are secured by mortgages over partially constructed homes, vacant land, and vacant investment rental or  commercial properties.  These issues are becoming increasingly common due to the economic impacts of COVID-19 and usually require skilled advice from family lawyers and accountants.

DDCS Lawyers specialise in all aspects of family law and can help guide you through the difficult process of separation. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
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Who pays the mortgage when you separate in Australia?

‘Who should pay the mortgage when we separate?’
Issues regarding who should pay the mortgage payments on the family home or other properties which form part of the property pool, frequently arise between separating couples. The issue often  needs to be resolved if there has been an increase in housing expenses, for example if one party moves out of the matrimonial home and rents an alternate property.
When the mortgage payments become an issue
Sometimes, the person who leaves the home believes that they shouldn’t be required to contribute to the home loan payments anymore because they are now paying for their own separate housing expenses. This is not necessarily a correct assumption.   
It can certainly be challenging trying to meet the costs of separate households and pay for all of the additional expenses that come with it, especially if there are children involved. The need to negotiate the payment of the mortgage is often one of the most urgent financial issues that arises on separation. This negotiation can be difficult because of the circumstances of the relationship breakdown and even more fraught if there are issues of lack of trust in financial matters between the parties. 
Who pays the mortgage? How it is figured out.
Many separating couples are able to successfully negotiate the contribution each should make to housing expenses between the two homes on an interim basis. If both parties are co-borrowers, they each have personal obligations to the bank to meet the monthly loan repayments. Default can affect the credit rating of the borrowers and / or lead to a forced sale. If they are unable to reach an agreement, family lawyers can assist them. 
As family lawyers assisting clients through this process, we carefully examine all sources of income of each party and their reasonable living expenses including rent on the substitute premises, and day-to-day expenses including their child support obligations, other liabilities such as motor vehicle expenses, and special expenses such as private school fees. 
Sometimes the party who remains in the home may have insufficient income to make any contribution to the mortgage payments, for example if they are not working and caring for children. In these cases, they will be reliant on the other party to not only meet the expenses of the new rental property, but also the mortgage on the family home. 
However, mortgage payment disputes do sometimes lead to litigation. The Court will require full disclosure of the income and expenses of each party and their overall financial position including care of children in determining the dispute.  In doing so the Court will undertake some scrutiny of the reasonableness of the expenses asserted by each party. For example if the party who has left the home enters into a lease for a luxury apartment and the family is left in financial strain as a result, the Court will not treat the rental of the apartment as a reasonable expense and will only allow a more modest rent amount as one of the necessary expenses of that party.  
To avoid litigation, it is very important that people negotiate calmly and preferably maintain the usual mortgage payment arrangements, including the usual direct debit payments and redraw facilities. It is not advisable to access funds available on redraw facilities unilaterally, as this will often lead to urgent court action for orders for restitution of the funds to the redraw account. Further it is inadvisable to make rash decisions about expensive alternate accommodation.  
Many parties leave the existing arrangements for mortgage payments in place while they are negotiating their property settlement. If one party pays a disproportionate amount of the mortgage after separation, this can usually be adjusted between the parties in the property settlement or spouse maintenance negotiations.  

Many couples who have separated since the start of the COVID-19 have deferred their mortgage payments for 3 to 6 months. While this  brings about a short term reprieve, it is essential they have agreements in place with each other, or appropriate Court orders if required, as to who will be responsible for the payments when they resume. Many will face higher mortgage payments at the end of the deferral period and an increased loan amount.
Our goal as family lawyers is to have people come to a settlement so that they can meet their own household expenses from their income and resources, including any mortgage payments they decide to take on after settlement. 
Additional properties or business secured over the family home
It is common for business loans to be secured over the family home by way of collateral mortgage, even if only one of the home owners is involved in the business. It is crucial to obtain a full understanding of the capacity of the business to maintain the loan payments secured over the home as soon as possible after separation to minimise the risk of default on the loans. Family lawyers can assist in ensuring all loans are met pending a property settlement being reached. 
What happens to the mortgage on settlement 
If a person wishes to retain the matrimonial home as part of a property settlement, that person  will  be required to refinance the loan into their own name at the time the home is transferred to him or from joint names. Once that occurs, the finances of the separated couple are no longer intertwined. 
If neither party wishes to retain the home or cannot afford to maintain the loan repayments after settlement the home will be sold. Again agreement will need to be reached in relation to the contributions to the mortgage payments until the completion of the sale.
The negotiations become much more complex when the loans are secured by mortgages over partially constructed homes, vacant land, and vacant investment rental or  commercial properties.  These issues are becoming increasingly common due to the economic impacts of COVID-19 and usually require skilled advice from family lawyers and accountants.

DDCS Lawyers specialise in all aspects of family law and can help guide you through the difficult process of separation. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
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How to resolve estate disputes without going to Court

Losing a family member will be trying at the best of times, but when there is a dispute over the will things can quickly become quite messy. It is ideal to try to resolve estate disputes without going to Court as this will be cost-effective and provide more certainty around the outcomes.
In this article, we take a look at the types of estate disputes, what the mediation process looks like and why it is the preferred approach to resolving will disputes.
Types of disputes

The most common estate disputes our firm typically deals with are family provision claims. This is where somebody has been left out of a will or they have been included but believe they have not had sufficient provision made for them. 
The second type of dispute is where there are disagreements between executors. There might be more than one executor who has a difference of opinion regarding something such as the sale of a property. Disputes between the executor and the beneficiaries can also arise.  When beneficiaries are feeling aggrieved by the way the administration of the estate is going they may seek to remove the executor from their position.
The other estate dispute we come across is where one of the beneficiaries, or somebody that has an interest in the estate, may dispute the capacity of the person who made the will. So the question comes up, ‘should this be the last will that is admitted to probate or not?’ A will will be invalid if the will-maker lacked the cognitive capacity to make the will. This will give rise to considering whether the will maker had an earlier will which should apply or whether the will maker died without a will. Disputes of this kind often arise where the will maker changes their will in a significant way late in the piece.
Within these three broad categories there are a myriad of other disputes which arise in this area of the law. Some of these include disputes regarding the assets and liabilities  which should be included in the estate; construction and rectification of the terms of the will; issues regarding wills which have not been made in accordance with the formal requirements of the Wills Act; and in New South Wales issues arising out of transactions dealing with the deceased’s assets prior to death (“notional estate”).
The process of dispute resolution

Anyone experiencing any of the above will want to try to resolve the dispute without the added expense of going to Court.  The starting point in any estate dispute process may involve negotiations. So for example, someone may write a letter saying they have been aggrieved and left out of the will and they believe they should get something. That goes to the executor of the estate, or the lawyers representing the executor, and the lawyer will help to determine if there is a case to be made and what a fair outcome would be. This can all be negotiated without mediation.
The next level up from this would be a settlement conference. So rather than having a mediator in place, the parties get together, have a conference with the lawyers and they work out a deal. 
The next step, if required, is mediation, which is the most regular dispute resolution process that we get involved with as lawyers. There are two forms of mediation. One is a private mediation where the parties select their own mediator and select their own timeframe.  The other is what’s referred to as a Court-annexed mediation where the mediator is appointed by the Court.

Commencing Court proceedings in family provision claims

Since there are limited time frames in which you can make a family provision claim, even if the parties are looking to resolve a dispute outside of Court, they will often apply to the Court to kick off the process so they ensure they are within the required timeframes to pursue a claim through the Court. 
In New South Wales, you have twelve months from the date of death of a party to bring a claim under the Succession Act. In the ACT, it is six months from the date that there is a grant of probate of the will. This might sound like a long time, but when people are arranging a funeral and going through the grieving process the time can go by quite fast. So people often start Court proceedings to protect their rights. 
What happens when initiating an application is that evidence from the claimant will show who they are and why they are eligible to make a claim. They provide evidence as to why the provision made for them under the will is inadequate and outline their financial position and their needs.  These documents are filed and the Court sets a date for a directions hearing. 
At this point, the estate represented by the executor  will also file affidavits about what is in the estate, detail what the financial position of the estate is, and include details of other persons that might have an interest in the estate. The executor can also respond to the affidavit that has been filed by the person making the application.
Mediation and how it works

Following the filing of initial affidavits the Court will usually send the parties to mediation to see if the matter can be resolved before going any further. Approximately 80% of family provision claims and other disputes that we deal with, are resolved at mediation. If settlement is not reached on the day of the mediation, then it is not uncommon to come to a resolution shortly thereafter.
It is important the participants recognise that mediation as a process is a very different process than a Court hearing. This is because at mediation, the outcome is in the hands of the participants. With the assistance of their lawyers and the mediator, they get to work out a solution for themselves and that solution does not have to be what the Court would ultimately do. When you do not come to an agreement and leave the Court to decide, neither party may get what they hoped for. Mediation therefore is an attractive option as when you come to an agreement you have certainty of outcome.
How to prepare for mediation
The key to any successful mediation is preparation and investing in the process. The more time and effort you invest in the mediation process, the greater the likelihood that you are going to get a successful outcome.
Firstly, it is important to identify the issues that are driving the dispute.Until the particular issues are identified it will not be possible to properly prepare for the mediation. The issue may involve the financial position of the claimant; or the relationship between the claimant and the deceased;  the assets and liabilities of the estate; or other matters. The identification of the issues will determine the information which will need to be gathered in preparation for the mediation.
You want to make sure you have all of the factual information on hand, so, for example, if there are questions about the value of something, make sure you have valuations organised before you arrive for the mediation. You do not want to get to mediation and find out that you cannot agree on the value of a house, for example.
So when it comes to information gathering, the first thing to have prepared and (if possible agreed) is the size of the estate. What are the assets; what are the liabilities; and what is available to be distributed. It will also be important to make sure that all of the relevant parties are represented at the mediation. For example, if there are multiple beneficiaries, such as a number of children, then all should be represented as the outcome of the mediation could impact them. 
Finally, you will want to address and pre-empt any questions that may come up, such as understanding any capital gains tax implications or any outstanding tax liabilities. If you do not know the answer to these questions, you may not know the precise size of the estate and this may be a barrier to resolution.
Representation of beneficiaries

Generally, the executors role is to represent the interests of the other beneficiaries, but not always, because there might be differences between the other beneficiaries. So quite often we will have not only the executor at the mediation but also beneficiaries who may be separately represented by other lawyers, depending on the circumstance of the case. 
As an example, in a mediation I was involved in recently representing the executor, two of the beneficiaries who were siblings of the claimant, chose not to come to the mediation. Prior to the mediation, I had spoken to them and I learned of their position – what they were agreeable to, or not agreeable to, and their position in relation to the settlement being proposed. There was another beneficiary, one of the other siblings, who took a different view to them and he was separately represented by a lawyer at the mediation.
Summary
There is no certainty of the outcome when you go to Court to resolve any dispute. This particularly so in a family provision claim. Different judges have different perspectives on what is adequate provision under a will. In an area of law which is largely discretionary, you can never be certain about what the outcome will be. Looking to resolve estate disputes outside of Court will in the majority of cases be more cost-effective and will provide certainty of outcome.

The DDCS wills and estate planning team are highly experienced and specialise in helping people navigate Estate issues like these. To discuss your circumstances, phone our team on (02) 62127600 or fill in the contact us form and our team will be in touch.
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How to find a divorce lawyer – Our 5 top tips

How to find a divorce lawyer – 5 tips to find the right representation for you
Going through a separation can be an emotional and worrying time. While the process has its challenges, finding the right divorce lawyer for your specific needs can make a difficult process a little easier. The right family lawyer by your side can help you to achieve the best possible outcome and make you feel more confident and supported along the way.
But how do you find the right family lawyer for you in your particular situation? Here’s our top 5 tips to finding the right legal representation for you.
Determine the speciality needed
Different lawyers have different strengths in their practice, so it is important for you to first consider what strengths you need from your lawyer to help with your matter. Will you need a strong parenting lawyer? Or will you need a lawyer with expertise in financial settlements? Will you need to file an urgent court application and need a lawyer with a strong litigation background?
Not all family lawyers are the same. Some lawyers are known to be strategists; others might be confident in a courtroom but lack interest in negotiation. It is important that you inquire and understand whether the lawyer you are considering has the qualities you think you need. You need your family lawyer to be the best advocate for you and your interests, while bringing particular skills to meet your expectations about how you want your case to be driven.
Firm suitability
When choosing which law firm you would like to go with, there are a few considerations to keep in mind. Just like lawyers, different firms have different strengths. There are larger firms where there are many different services offered and there are boutique law firms where they focus on one particular area of law. 
In some commercial firms, family law may be one part of many within the bigger structure, but in boutique family law firms, their lawyers and staff work only in family law. Here at DDCS Lawyers, we have two specialist practice areas which are highly complementary and interconnected – family law and wills and estate planning. The family lawyers in our boutique firm choose only to work in family law because they love it and do it very well.
Also consider whether the firm has experienced family law specialists, who have met additional independent assessment criteria in order to be recognised as Accredited Specialists. The lawyers working in specialist family law firms should also be fully engaged with the broader profession and the Courts and can bring the benefits of that experience to your matter. Often, knowing your opponent and their style of practice helps lawyers to shape and plan strategy and to strengthen their client’s case. Knowing your opponent and the Court will also assist with case preparation.
At our firm, we have senior partners who have been immersed in family law for decades and bring that experience and wisdom to assist our clients and in the support of our professional team. The connections and networks that a specialty firm has developed over the years are applied to benefit you.

Do your own research
Doing your own research is as important as speaking to potential lawyers. Some law firms, like ours, will offer a complimentary service to help new clients. At DDCS Lawyers, when a new client calls to make an enquiry, you will get to speak with one of our partners or Senior Associates. If a partner or a Senior Associate is not available at that time, one of them will call you back and speak with you about what the firm can offer and importantly, answer any initial questions you might have. That way, we help you to decide if we are the right firm for you and we will match one of our experienced lawyers to your particular situation.
There are other places where you may be able to seek information about family lawyers, including contacting the law society or governing body in your State or Territory. In the ACT, you can contact the ACT Law Society for further information and referrals.
Confirm the reputation
If possible, find out the reputation of the lawyer and the firm. You may be able to do this by asking people you know, checking Doyle’s Guide, or reading articles published on media (such as RiotAct). One of the best ways to find a good lawyer is through word of mouth, and speaking to past or current clients of that lawyer may help you feel reassured about their particular skills. Your accountant, financial planner, GP or psychologist may have had some experience with local family lawyers too, and they might be able to share some of their thoughts about that lawyer or law firm based on their experience.
Find the right match for you
Often lawyers and clients end up working together because they have found a connection based on expertise, interests and the ability to communicate. This is more than your lawyer just being able to tell you what the law is – it is much more about helping you to feel that you have been heard, your situation has been understood and the advice given to you has been communicated clearly and simply.  
Most people want a lawyer with an understanding of their needs and with compassion and sensitivity to their specific circumstances. Feeling comfortable and confident in your choice of lawyer is very important. You will want to be able to speak freely, be heard and receive honest advice. Ultimately, you need to find out what your potential lawyer’s values are and whether or not they align with yours.
What about cost? For most people, money matters. We know that legal fees can be expensive. Talk to your lawyer about fees. Not all lawyers charge the same – and different lawyers within a firm come at different rates. More experienced lawyers understandably have a higher hourly rate than others. See if the firm you are interested in has a range of lawyers and can assign junior lawyers to assist with certain aspects of your matter, to keep costs down. Having a skilled and passionate junior lawyer helping out, with partner oversight, adds value to your case and helps keep the costs within your budget. At DDCS Lawyers, our partners oversee all work and provide support, direct and indirect, to all our clients.
Finding the right lawyer for you is a very personal process but it will make a significant difference in your family law journey.  Hopefully these tips will give you a head start.

DDCS Lawyers specialise in all aspects of family law and can help guide you through the difficult process of separation. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
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2020 Doyle’s Guide Awards Announcement for Family Law in Canberra

The latest Doyle’s Guide to the Australian Legal Profession for Family Law was released in June 2020. DDCS Lawyers has again been recognised as a Leading Firm in the 2020 Doyle’s Guide Awards for Family Law in ACT.
Doyle’s Guide is a peer-reviewed listing of the best firms and lawyers across Australia. As with previous years, DDCS Lawyers and our individual lawyers have been recognised by Doyle’s Guide across a number of professional fields.
 

Di Simpson has been awarded Market Leader in the category of Leading Family and Divorce Lawyers in ACT. Di has also been listed as a Leading Parenting, Custody & Children’s Matters Lawyer.

Lois Clifford has been recognised as a Preeminent Family Lawyer for the ACT and also as a  Recommended Parenting, Custody and Children’s Matters Lawyer.

Julie Dobinson has been recognised as a Leading Family & Divorce Lawyer for the ACT and also listed as a Recommended Family Law Mediator.

Alison Osmand has been recognised as a Leading Family & Divorce lawyer in the ACT along with being awarded as a Leading Lawyer in Parenting, Custody & Children’s Matters.

Phil Davey is ranked as Recommended Leading Family & Divorce Lawyer in the ACT.

We are delighted to have Emily Tighe recognised as a Rising Star in Family Law in the ACT.

We are equally delighted  for Tina Lee as she has been recognised as a Rising Star in Family Law in the ACT.

In addition to these individual awards, we are proud to be listed as a First Tier Law Firm in the category of Leading Family and Divorce Firms in the ACT.
 
The awards for Wills & Estates are announced late 2020.
 
Doyle’s Guide Award Links:
Leading Family & Divorce Law Firms – ACT 2020 
Leading Family & Divorce Lawyers – ACT 2020 
Leading Parenting, Custody & Children’s Matters Lawyers – ACT 2020 
Leading Family Law Mediators – ACT 2020 
Family Law Rising Stars – ACT 2020
 
DDCS Lawyers specialise in wills, estates planning and estate litigation. If you need assistance, contact our team on 02) 6212 7600 to book a consultation.

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