Wills are lost or misplaced far more often than many people realise, and it can cause great trouble and confusion. The best remedy is, of course, prevention. Ask family members where to locate important documents like Wills. Keep your Will in a safe place and tell your nearest and dearest where to find it. The second-best remedy is a diligent search. Should that fail, there may still be ways to prevent an estate from being distributed as if the deceased had died without a Will, but these may require the permission of the court.
Search and search again
Look in all the usual hiding places – desk drawers, filing cabinets, the tops of bookcases and anywhere else the deceased was known to put things for safekeeping. Check the freezer. As some experts have noted, this is often the poor man’s fireproof storage box. Is there an offsite storage facility?
If the Will was prepared by a solicitor, the solicitor’s office may have the original or an executed copy. Ask other relatives. Run advertisements in the local newspaper.
The presumption of revocation
If the search turns up nothing – not even a copy – and the Will was last believed to be in the deceased’s possession, the law will presume that the deceased revoked the Will by destroying it. The estate will be distributed according to the rules of intestacy.
If a properly executed and witnessed copy of the Will exists, a problem still exists because deliberate destruction of the original Will would have revoked it, notwithstanding the survival of a copy. Nonetheless, if the surrounding evidence is sufficiently persuasive that:
there was an original Will;a thorough search was conducted;specific circumstances likely caused the original to be misplaced or destroyed by accident; andall persons who would be adversely affected by distribution under the Will rather than under the rules of intestacy consent,then the copy may be admitted for probate.
What circumstances would support the acceptance of a copy of a Will?
The circumstances that will support the admission of a copy of the Will are very fact-specific. If the Will was known to be in the possession of the deceased at a time when the deceased’s house was destroyed by fire, for example, an executed copy might be sufficient. The same might be true if the deceased had to leave the home because of ill health, the home was cleared out and many possessions were lost.
A similar catastrophe at a solicitor’s office when the solicitor was known to have the original Will might also be sufficient.
The situation can become more difficult when the copy is unsigned or an individual who would inherit under intestate provisions, but not under the unsigned or copy Will objects. These problems may sometimes be addressed through negotiation.
If you are confronted with the problem of a lost Will – either a Will that cannot be located despite diligent searching or the situation that arises when an original document cannot be found, but an executed copy has been located – the attorneys at Owen Hodge Lawyers are here to help. Please call us to schedule a consultation at 1800 770 780.
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Grandpa didn’t recognise me – a first-person case study
I knew I was his favourite granddaughter and I was shocked when visiting him some months ago he momentarily didn’t recognise me. He was aged 85 and fairly fit and healthy although he was slowing down. I had never thought that he might be suffering from dementia. He was also selling his house with Granny to move into a retirement village.
I went with them to the lawyer to assist them with the paperwork and quietly mentioned to him my concerns. The lawyer asked grandpa a lot of personal questions and a few things about the news of the day and his assets. He confidentially advised me that he thought that it looked as though grandpa was losing his capacity for cognition a bit. However, the doctor assured me that grandpa had the legal capacity to proceed with the sale for the move into their new digs.
Who decides on legal capacity?
The above example demonstrates the capacity when it comes to cognition and making important life decisions. However, it is important to understand that when it comes to Wills, they are a completely different matter – especially homemade Wills. The reason for this is that there is no legally trained professional who can attest as to that person’s mental capacity – as well as explaining the contents of the will. Over a recent number of years, many Wills have been contested for this very reason. 
What does the law require to make a Will?
The classic statement of the law still followed today is set out in an old English case decided in 1870 and known as Banks v Goodfellow. In that case, Mr Justice Cockburn prescribed three essentials.
Firstly, it is essential that the individual understands that a Will is being made and that the will-maker fully appreciates to whom their property is passing.Secondly, the will-maker must understand the extent of the property of which they are disposing,Thirdly the will-maker must be able to comprehend and appreciate the claims to which they ought to give effect. That the will-maker should have some understanding as to their proposed beneficiaries and where they fit within their moral duty.
Finally, the Will maker must not suffer from paranoia or delusions.
This law is still valid today.
Who decides if a particular person has cognition?
The Courts have held that there is a hierarchy of people who are best able to give evidence in these sorts of matters. Firstly those who are closest to the particular person: spouse, child or someone who lives with them.
Secondly, a longer-term General Practitioner should be able to assist. This is because a GP normally sees a patient fairly regularly over the years. That GP may, if they are not sure of the diagnosis, refer the patient to a specialist geriatrician. Those specialties have recognised tests that can be applied in assisting the GP, upon receipt of the specialist doctor’s report, they can then advise appropriately.
How do you best settle on a lasting Will?
We can help! We always recommend the following steps when creating or updating your existing Will documents (yes, updating is just as important as creating a Will). 
1.  Instruct a knowledgeable Lawyer
2.  Ensure that Lawyer tests for testamentary capacity
3.  That lawyer keeps file notes with the Will in safe custody
4.  If the lawyer indicates doubts to the Will maker encourage him or her to get a medical report from the GP and if necessary a referred Geriatrician.
5.  Does the Will maker have knowledge of and approve the contents of the will.
If you have any questions about cognition or creating a Will, please feel free to call us at 1800 770 780 to schedule a consultation. The attorneys at Owen Hodge Lawyers would be happy to provide guidance and information.
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If you face the task of negotiating your employment contract with all the enthusiasm that you bring to dental surgery, you are not alone. Less than one per cent of employees try to negotiate the terms of their contracts – a statistic that suggests that few are being paid their full worth.
Take heart. Even if negotiation is not your strong suit, there are simple steps you can take to reduce the pain and perhaps improve the outcome.
Above all, bring a positive attitude to the exercise – negotiation is an expected part of the process; you are not being quarrelsome. Do not feel unnecessarily hurried; you are entitled to a reasonable period of time to consider the employer’s offer. And get some help, especially if you are on the rise in your career and new to negotiation. Where you start may determine your career trajectory for years to come. 
Evaluate the offer
There are four steps to this:
First, recognise your own priorities. If you require a certain minimum salary, make sure that the offer includes that. If work/life balance is more important, define as clearly as possible what that means. If you want to either limit or maximise international opportunities, say so. Try to put numbers and dates on as many of the truly important things as possible. That way you can evaluate whether those priorities are being met. You are setting up your next negotiation.Second, think of your employer’s offer as merely an opening gambit – a place to begin the conversation.Third, have some information about what comparable employers are offering for comparable positions so that you can be sure that your expectations are reasonable; andFinally, give some thought to what you would be willing to relinquish. Once you have defined items that are not negotiable, you may be able to identify areas where your expectations can be more flexible.
 Ask for what you want, plus some
Many experts advise negotiators to begin with salary before moving on to other benefit package details. Get as much information as possible about internal salary structures and gradations within large salary bands. Employer claims of confidentiality or proprietary privilege are a big warning sign. No one should be asked to negotiate in the dark.
In addition, many also advise paying particular attention to timing questions about when and under what circumstances salary, bonuses and promotions will be re-determined in the future. To the extent possible it is important to eliminate employer discretion about timing and benchmarks. 
You may want to negotiate for a longer notice period in the event of termination, particularly since you may not be covered by statutory protections. The same is true of redundancy pay. These terms should be included in your contract, not simply set out in company policies.
Carefully review any time or geographic restrictions concerning future employment, and try to limit them as possible.
On the other hand, consider that a successful negotiation should leave both sides feeling victorious. Your contract and the process of negotiation is the basis for a future relationship. Neither you nor your employer should conclude the process feeling angry or resentful, as this will only poison the prospects for future cooperation. Neither do you want to be seen as someone who is unaware of the value of her work?
Be prepared to walk away – with style
Especially in smaller industries or among an up-and-coming group of young professionals, the people you meet today are the people who you will meet again. People remember, so hang on to your dignity.
If you ultimately accept the negotiated offer, do so in a writing that spells out and is conditioned on your understanding of all essential terms and conditions. Make sure that your employer confirms your understanding in writing.
If negotiations are not successful and an agreement cannot be reached, decline the offer in writing. Best not to go into details. No one will think badly of you for declining a bad offer. This is your opportunity to send the graceful “wishing you well in your future endeavours” letter. Enjoy the turned tables, if you must, but move on. A new offer and another negotiation are around the corner.
The attorneys at Owen Hodge Lawyers will be happy to help you evaluate your employment offer and negotiate the terms of your new contract. Please call us to schedule a consultation at 1800 770 780.
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If you are starting your first business, or if you are a long-time business owner, leasing space to pursue your livelihood can have some tricky implications. Before you start searching for the perfect space to create or expand your business, it’s important to review some critical issues.
First, take the time to sit down and evaluate each of the following:
The proper amount of square footage you will needThe number of employees you will be accommodatingThe cost per square foot of space you are consideringThe zoning laws; ie: does the law allow for your type of business to reside at the location you are considering?The ease with which your customers will be able to visit your site; ie: is there enough parking? Is it free or does it require payment or validation?
These very basic questions are the backbone of being able to choose the right location. Until you have sorted out the answers to each of these questions, you will not be able to adequately limit your search to a property that truly meets your needs.
Upon finding the right location, it is important that you assemble a team to assist you in negotiating and closing the deal with the prospective landlord. This is the time to make sure you are working with a knowledgeable commercial real estate agent and commercial property attorney. In addition, you will need to consider if you have enough capital for the initial costs, or if you will need a small business loan. It will be important for you to shop around for the right type of investment funds if need be.
Once you have your team assembled and your location(s) chosen, it will be time to start reviewing the lease offerings. It is important that you and each member of your team read all of the possible lease agreements fully and completely. Everyone involved should be looking out for the following issues:
The cost structure of the lease payments; time frame of the lease, changes in monthly lease ratesTrue square footage available to youActual zoning approval documentationCost of all utilities and the party responsible for payment of the sameInspections allowed prior to and during the term of the lease; including which party will bear the cost of repairing or replacing items identified as not being up to legal codeCost of repairs; both due to ordinary wear and tear and those of a more extensive natureProperty return rules; will you be required to return the premises to its original condition including paint colours, removing after lease shelving or other minor property alterations, reconfiguring changes in space partitions such as temporary wallsSubleasing arrangementsPenalty clauses
During the course of your negotiations, it will be necessary for you to trust both your real estate agent and your attorney to work out a deal that is in your best interests. As both of these people are professionals, they are less likely to become emotionally involved in the negotiation process. Hence, listening to their advice will be paramount to the lease being in your and your business’s best interest. 
As much as you should not enter into a lease agreement from the standpoint of pure emotional attachment to the property, you also should be careful not to walk away from a good deal due to momentary glitches or disagreements during the course of negotiating the contents of the lease agreement. In these instances, allow yourself to rely on the sound judgment of those professionals that you have surrounded yourself with.
Finally, every lease should clearly define the available options to opt-out of the lease at various times during the course of the lease, such as at renewal time. The lease terms should also define the opt-out parameters in the event that your business has to close before the lease is up. While no one wants to plan for failure, it is important that the terms of needing to give up a lease earlier than expected, be well defined and understood by all parties.
And lastly, be sure to read and carefully review the clauses pertaining to the handling of legal disagreements between the landlord and the tenant. These clauses can also be negotiated with regard to payment of legal fees, the use of mediation to initially settle legal differences or the abrogating of the legal right to sue the landlord or the tenant in favour of using binding arbitration.
If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
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Families going through a divorce have many important issues to sort. However, one of the most important decisions that must be made is whether parents feel they can work together to create and agree to a Parenting Plan, or if they will need the full force of the court when determining how they will proceed with the daily living and financial issues of raising their children.
There are several differences that must be taken into account when deciding between a Parenting Plan or seeking a Consent Order from the court.
Parenting Plan
If parents are able to communicate respectfully and clearly with one another, it is very possible that a Parenting Plan is a good option for ensuring the ongoing needs of their children. A Parenting Plan allows parents greater leeway in making immediate decisions and more flexibility for addressing the children’s future needs. It is important to keep the following in mind when choosing to engage in a Parenting Plan.
Parenting plans are not legally bindingThese plans do allow for changes to be made without the assistance of the courtAll changes must be agreed upon by both parentsParenting plans must be signed by both parties
In addition, Parenting Plans can save the parties a great deal of money as these plans can be worked out and agreed to by the parents themselves. Alternatively, a third party can be present to assist them in creating a plan that will work for the parents and in the best interest of the children. Oftentimes a mediator or a counsellor can be of great help in drafting a Parenting Plan that works well for everyone.
Parenting Plans should take the following into consideration;
The daily schedule of the children including school hours, summer and holiday breaks, extracurricular activities and weekend timeFinancial needs including tuition, books, transportation, living expenses, medical needs, sport participation fees and the cost of other incidentals such as music/art lessonsAn actual accounting of time spent with both parents, including how time will be shared on a daily, weekend, summer and holiday basisThe transportation of children between parental homesAttendance at school and extracurricular eventsAny travel parameters for either parent taking the children on a holidayReligious considerations
Most importantly, when creating a Parenting Plan great consideration should be given to the children’s needs, reducing changes to those that are absolutely necessary and being fair with one another.
However, there are instances where parents cannot agree as to how to proceed with co-parenting their children. Some parents find it difficult to come to a consensus on daily schedules, summer and holiday times and the financial sharing of the cost of continuing to raise their children. In these instances, it might be more prudent for parents to request a Consent Order. A Consent Order has the following characteristics;
It is a legally binding document which is enforceable by the courtIt is created with parental input by a family court judgeIt cannot be changed unless there is a showing of a significant change in circumstancesParents must make an application for a Consent OrderRequires the signature of both parents
Applying for a Consent Order is a bit more complicated and, as such, it is recommended that parents consult with an attorney for assistance in preparing their paperwork. The paperwork will include giving information to the court about the daily needs of the children, the living conditions, specifying what both parents are able to provide, the financials of both parents, the financial needs of the children, and the requests of both parents regarding shared time for weekdays, weekends, and summer and holiday times, as well as attendance at school, extracurricular functions and travel over school breaks and summer vacations.
When asking for a Consent Order it is very important to remember that it is highly unlikely that either parent will get every concession they are requesting from the court. Instead, the power to determine the compromises and content of the Order will be held with the presiding judge. Therefore, parents will give up the right to control the final outcome of their children’s needs. Instead, the best interests of the child will be left to the discretion of the family court judge reviewing the application and drafting the Order. Upon completion of the Order, parents will be asked to sign the agreement and the Order will become a legally binding document that will be enforceable by law.
A Consent Order is one which can be of great benefit to parents who are concerned that their ex-spouse or partner might not willingly comply with a Parenting Plan. The use of a Consent Order can bring peace of mind to both parents in knowing that each is bound by the findings and decisions of the family court judge.
If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
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On 27 June 2019, the Commissioner of Taxation issued guidance about what the executor of an estate must do to qualify the estate for capital gains tax relief when circumstances prevent the sale of the deceased’s dwelling within two years of the date of death.
Under existing rules, an executor (or beneficiary) of a deceased’s estate can disregard a capital gain or loss arising from the disposal of an ownerships interest in the deceased’s dwelling within two years of the deceased’s death. The property must have been either the deceased’s main residence and not used to produce assessable income, or the dwelling was acquired before 20 September 1985. The rule does not include investment properties.
However, unforeseen difficulties can delay a sale. Under certain circumstances, the Commissioner may now exercise discretion to extend the grace period by an additional 18 months. Since the barriers to a prompt sale are difficult to anticipate, the most prudent course for many executors will be to ensure that efforts to sell the dwelling comply with the safe harbour rules even before complicating circumstances occur. 
How to qualify for the safe harbour
In exercising discretion about whether to extend the two-year period of tax relief, the Commissioner will consider whether:
the Will was challenged;ownership of the dwelling was challenged;a life or other equitable interest in the dwelling was given in the Will;the estate is complicated in such a way as to delay administration; orsettlement of the contract of sale is delayed or falls through for reasons beyond the beneficiary’s control.
In addition, the home must be listed for sale as soon as practically possible after the circumstances are resolved, and the sale should be settled within 12 months of the property being listed for sale. Even when an extension is granted, the sale must be completed within 18 months of the end of the original two-year period.
Steps and circumstances that may weigh against an extension
Other factors will not be considered, however, and may even be counted against an extension of time. These include:
Waiting for the property market to pick up before selling the dwelling;Delay due to refurbishment of the house to improve the sale price;Inconvenience on the part of the executor (or beneficiary) to organise the sale of the house, or; Unexplained periods of inactivity by the executor in attending to the administration of the estate.
If you are the executor or personal representative of an estate, faced with the task of selling the home of a deceased, please contact the attorneys at Owen Hodge Lawyers at 1800 770 780 to find out what you must do to qualify for an extension of the existing two-year deadline for favourable tax treatment.  We look forward to working with you. The time to prepare is now before difficulties arise.
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When creating estate planning documents, most people think of a simple Last Will and Testament. However, there are two equally significant documents that all persons should consider drafting and entering into when taking care of their estate planning needs. These additional documents are an Enduring Power of Attorney and an Enduring Guardianship. While these documents sound similar, they have very distinct differences and serve different purposes.
An enduring power of attorney is a document that is entered into between a person and their legal delegate. The legal creation of an enduring power of attorney gives the designated person the right to make any necessary financial decisions on behalf of an incapacitated person. An enduring power of attorney has several attributes. These include:
Giving authorisation to the named person to act as the makers’ attorneyDefining the parameters of the enduring power of attorney’s rights and obligations to the incapacitated individualThe actions of an enduring power of attorney are legally bindingIt is revocable at any time by the makerIf you give your enduring power of attorney the right to make real estate decision, they must register the enduring power of attorney with the New South Wales Land Registry ServiceMust be 18 years of age or olderUpon regaining a capacity, the enduring power of attorney ceases and the marker resumes the right to make their own legal decisions
One of the most important considerations when appointing an enduring power of attorney is to consider if the person you are designating is trustworthy and financially intelligent. It is imperative to remember that this person, whom you are designating to handle your financial and legal affairs, will have the full legal authority to do so and you will be bound by their decisions. Hence, it is important to think carefully and choose wisely.
The second legal document to consider drafting is an Enduring Guardianship. Like the enduring power of attorney, you will need to designate someone you trust to act as your enduring guardian. However, the decisions of an enduring guardian are quite different in nature than that of a power of attorney. The attributes of an enduring guardianship include: 
The enduring guardian will be making decisions pertaining to your health and welfareThe power to make these decisions will only come into effect if you are incapacitated and unable to make your own health and welfare decisionAn enduring guardianship can be revoked at any timeUpon regaining your capacity, the right to make your own medical decisions reverts to youYour enduring guardianship papers do not need to be registered with any organisationThe person you choose must be over the age of 18You can direct the particular lifesaving or treatment options you prefer, requiring your designated enduring guardian to carry out your wishes with exactness
Again, one of the most important aspects of making this type of designation is to choose someone who will abide by your wishes for various aspects of your healthcare including; the insertion of a feeding tube, the use of extraordinary measures to prolong life, the decision to remove respirators or other lifesaving equipment and possible organ donation. Therefore, it is imperative to choose someone who can handle the emotional aspects of making all of these decisions in exact accordance with your instructions.
It is possible to designate the same person to act as both your enduring power of attorney and your enduring guardian. In addition, it is permissible to elect a secondary person in the event that the person you designate is unable to fulfil their obligations. However, in both instances, it is important to meet the legal requirement that the designee is over the age of 18 and the personal requirement of sound judgement and trustworthiness.
In the event that you are creating a Will or revising a Will, and you have not yet considered or completed either an enduring power of attorney or an enduring guardianship, you should consider researching and inquiring about doing so with your current attorney. By making these provisions you protect your right to choose which responsibilities and rights you would like to allow another individual to enact on your behalf, thereby protecting both your assets and your health care desires.
If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
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Preparing a travel itinerary and coming up with ideas for an overseas trip is a very exciting time. However, during the travel preparations, many people are also filled with anxieties about leaving their homes and their loved ones behind for a short or long while. 
One of the things that a lot of people decide to check off their to-do list at this stage includes preparing their wills and other estate planning documents. Despite the fact that travelling on a plane is one of the safest forms of transport available, something about travelling a fair distance away from home encourages people to get these documents in order.
What could go wrong?
It is extremely unlikely that anything will go drastically wrong while a person is overseas on a work trip or a well-deserved break. But despite the very slim odds of something as traumatic as a plane crash occurring, if it were to happen and a person had no will in place, their estate would be subject to predetermined state laws which would be relied upon for the distribution of their estate assets. In this tragic scenario, such a person would have probably had their own ideas as to how their estate be split in the interests of their children, grandchildren, friends or any beloved charities or groups which would not then transpire in reality.
I have a will, so can I travel stress free? 
It is great that you have a will in place before you travel, but it is also crucial that you get your other estate planning documents in order as well. The three most important estate planning documents you should have in place before travelling overseas include: 
WillPower of Attorney (relates to financial and personal matters)Enduring Guardian (relates to lifestyle decisions such as medical treatment)
Your Power of Attorney and Enduring Guardian documents would be necessary if the person travelling overseas returned home with a health issue that impeded on their ability to make their own financial and lifestyle decisions. In this scenario, it is often too late for this person to set up these two documents after their return, as they may be considered to have lost capacity to make such decisions. This is why it is critical to have both a Power of Attorney and Enduring Guardian documents created and signed before leaving overseas so that others can be legally appointed as Enduring Guardian and Power of Attorney to make such decisions on your behalf if need be.
How to avoid problems for family members
The easy solution a person can undertake in order to travel stress free is to create or update all of their estate planning documents with a solicitor before going overseas. 
Overseas holidays are usually planned months and months ahead of time, yet many people only think about making or updating their will in the week or two prior to leaving. Give yourself plenty of time to complete this important task to ensure you can properly plan and make decisions in the best interests of your loved ones.
If you find yourself in need of assistance with this, or any other legal issue, please contact the law offices of Owen Hodge Lawyers and speak with one of our experienced estate planning solicitors. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
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During a divorce, a couple’s attention is usually overwhelmingly focused on the process of dissolving the marriage. However, there are some related issues that require the attention of both persons, particularly when it comes to making changes in their Wills and Trust decisions and distributions. While this may be the last thing on a divorcing couples mind, it is imperative that each person reviews their current estate plan and make changes to reflect their anticipated change in status.
First, it is important for both parties to do an accounting of their individual and joint assets. For example; bank accounts, debts, mortgages and property ownership, life insurance policies, beneficiaries of superannuation accounts, executor/executrix of the estate, trusts, health care designees, and finally guardianship issues for minor children.
While many people believe that these issues cannot be addressed during the course of separation, that is not accurate. Many of your individual assets and your ownership joint interests can be redistributed. However, this can only be accomplished by drafting and signing a new Will and Testament. 
In the event that you do not execute a new document, it is likely that the distribution of assets will be done in accordance with the Will you signed during the course of your marriage. Therefore, it is imperative that you review the allowances under the law for changing your distributions to a spouse from which you are currently separated.
If your divorce has been finalised, but you have not re-executed your Will some distributions and conditions will automatically be altered. These include:
Any assets left to your ex-spouse will be disallowed and redistributedIf you pass without a Will, your assets will be distributed in accordance with the laws of intestacy which will not allow for your ex-spouse to partake in the taking of your assetsIf you did not change your executor/executrix, the court will disallow your ex-spouse from acting in such capacity, unless you have specifically indicated your desire for them to do so
There are some things you will be allowed to change, even if your divorce is not yet final. These changes include:
Updating your health care proxyRevoke Power of Attorney from your soon to be former spouseRemove your ex-spouse as your executor/executrixDecide what you will leave your former spouse because while you are separated you cannot disinherit your spouse entirelyAny pre-nuptial agreement terms must be honoured until the divorce is finalisedReview and amend any revocable trust documents
There are some things, that regardless of being in the state of separation or having finalised your divorce, you cannot affect. For example, while you can name a guardian(s) for your children, if in the event of your death the other parent is still living, the parent living will be given custody of the children. However, you can name a guardian in the event that your ex-spouse should pass away prior to the children turning eighteen years of age.
In addition, while you and your soon to be ex-spouse may have discussed your wishes for arrangements upon your death, it would be best not to trust this important task to someone you are separated from or no longer married. Therefore, it is highly recommended that you make your wishes known in your new Will or in a document left with someone other than your ex-spouse. This will ensure that your wishes are carried out by someone who has your best interests in mind.
Also, it is important that you do the same regarding your power of attorney and health care designee, in the event that you cannot make financial or health care decisions due to being incapacitated. While it is expected we trust our spouse with these important responsibilities and decisions, during the course of separation and the finalising of a divorce, hard feelings can develop which would endanger sound judgment and decision making. Therefore, it would be best to reassign these important duties to another family member or close friend.
If you make these changes during your time of separation, it is important to remember to revisit your decisions and your Will again, after the divorce is finalised. As expected, if you pass away during the course of being separated, any bequest you left to a spouse during the course of being separated will be distributed to them. However, once you are divorced these bequests will be revoked. If you wish for these bequests to still go to your ex-spouse you will need to state so in a new Will signed subsequent to the date of finalisation of your divorce.
After the divorce is finalised you will also have a new ability to redistribute your superannuation as a divorced person. Upon the finalising of divorce, the law does not require an ex-spouse inherit any part of the other’s estate, including retirement funds. Therefore, it is at this juncture that you may decide to leave your former spouse no part of your superannuation assets.
In all cases, once the divorce is finalised, If you decide to leave no part of your assets to your former spouse, a clear intent to do the same can reduce complications and the contesting of your Will.
If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
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In this post, we look at the seemingly outlandish case of Bill Gertos, who claimed squatters’ rights on a property in Ashbury and was ultimately granted possession of it. How did this property developer get away with it, and equally as important, how could this situation have been avoided?
In 1998, Bill Gertos came across the abandoned Inner West property, finding the doors unhinged and the house completely open. The home had in fact been leased by an elderly woman who passed away that same year. Upon his discovery, Gertos decided to take possession of the property, changing the locks and commencing restoration work. 
He had been renting the home out for close to 20 years when the family of the original owner was notified by police of the situation in 2017. The original owner had moved out of the property post-WWII. 
Annoyed at missing out on the property that they were entitled to, the existing beneficiaries challenged Mr Gertos when he applied for ownership rights to the Registrar-General under the existing squatter laws or ‘adverse possession’ laws. 
Adverse possession was developed under common law (court-made law) and allows a person to gain title to a property if they have remained in that same property for a certain amount of time, and nobody has disputed their possession.
Seeing as Mr Gertos had been habituating and renting the property for over 20 years, the Supreme Court awarded him full ownership.
How is it that a squatter can claim ownership rights?
In New South Wales, under the Real Property Act 1900, a person can apply to gain the right to adverse possession of the property if they have remained in that same property for a minimum of 12 years. During that period, they must have maintained factual possession of the land to the exclusion of others, and demonstrate an intention to possess the property. 
Factual possession requires a level of physical control over the property. In Mr Gertos’ case, actions that indicated his physical control would include changing the locks, repairing the property or paying bills. Gertos’ conduct, although perceived as vastly unfair by the public, satisfied the requirements of the Court, and he is now the official owner of the $1.6 million home.
In this case, Supreme Court Justice Rowan Darke found Mr Gertos had sufficient evidence he invested money into fixing the home, paid taxes on it, and leased it to rental tenants.    
How could squatter laws impact you?
If there is a property in your family that has passed through the generations, they may indeed have a very real impact, particularly if there is no official title deed to show that your family members are actually the legal owners. In this case, squatters may very well be able to take legal ownership.
A will is an essential document, particularly in this case, to grant and demonstrate legal entitlement of your beneficiaries to any property you may have in your possession. 
Owen Hodge Lawyers has a team of estate planning professionals who can make sure that this turn of circumstances does not happen to you. Contact us today to organise a consultation on 1800 770 780. 
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Are you worried about an adult child who may be at risk of abuse, exploitation or neglect because of a decision-making disability?  There are important steps you can and should take, but they may not come immediately to mind when thinking about this issue. Protecting your child and preserving the best possible quality of life, depends on sound legal advice.
Three principles shape this area of law:
People who have reached the age of 18 are legal adults who are presumed, absent evidence to the contrary, to have the capacity to make decisions for themselves;Capacity is a shifting and nuanced thing – very specific to an individual, the nature of a disability and the kind of decision required; andThe law favours solutions that preserve the maximum possible decision-making autonomy for people with disabilities.
Because these principles involve balancing competing interests and careful communication among all involved, it is generally best to start planning as early as possible. It is important to involve health care professionals and a lawyer.
Decision-making capacity
Reduced decision-making ability may be the result of an intellectual disability present from birth, mental illness or acquired brain injury. These may present themselves very differently, fluctuate in severity or affect some kinds of decisions but not others. As an example, the disability may, for instance, affect financial decisions but not medical matters or issues of self-care. 
Keep in mind that even those with impaired decision-making abilities may often be supported to make their own decisions through careful communication. To the extent that informal decision-making support works well and without risk of undue influence, this is often the solution that works best.
If you have not already done so, it would be wise to involve a health professional or service provider in evaluating your child’s decision-making ability. If they conclude that your adult child can make informed decisions, then you may offer advice and support. But your adult child will be decision-maker.
What parents cannot do for an adult child
It is not possible for a parent to make either an enduring power of attorney or enduring power of guardianship on behalf of an adult child. It is also not possible to nominate someone to be the guardian of your adult child in your Will.
If a substitute decision-maker is required, a guardian or administrator may be appointed by the State Administrative Tribunal.
Generally, only a tribunal can make certain decisions, such as those about:
sterilisation;termination of pregnancy; orelectro-convulsive therapy or psychotherapy.
Before reaching out to a tribunal, a better alternative may be to speak with family and friends about who might be available to help the person with a decision-making disability in the future. This might be as simple as giving people the contact details for the Office of the Public Advocate or the tribunal so that they know who to contact in the future.
 Guardianship and Administration Act 1990
The Guardianship and Administration Act 1990 recognises that adults who are not capable of making reasoned decisions for themselves may need additional support and assistance to avoid neglect, exploitation and abuse. It enables a substitute decision-maker to be appointed to make decisions in their best interests.
There are two main types of substitute decision-makers: a guardian and an administrator.
Guardianship applies to personal, lifestyle and medical treatment decision-making; andAdministration applies to financial and legal decision-making.
To apply to have a guardian or administrator appointed, a parent must complete an application form available from the State Administrative Tribunal.
A plenary appointment allows a guardian or administrator to make all the decisions and perform all the functions that the represented person could perform if they did not have a disability. A limited appointment allows a guardian or administrator to make only the decisions or perform only the functions specified in the order. A plenary guardian will not be appointed if a limited guardian would be sufficient to meet the person’s needs.
The appointments are not permanent. The tribunal is required to review each order every five years. Depending on the circumstances of the case, a review may be conducted sooner.
If you have questions about how you can protect your adult child whose disability makes it difficult or impossible for him or her to make important life decisions, please call us at 1800 770 780 to schedule a consultation. The attorneys at Owen Hodge Lawyers would be happy to provide guidance and information.
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Everyone can use a little extra income, particularly for a job well done and additional hours worked. Oftentimes promises of bonuses can sway a potential employee when making a determination between one employer or another. However, it is important to understand the structure of bonuses as they vary depending upon your type of employment, level of expertise, and generosity and commitment of the employer.
Initially, it is smart to take the stance that bonuses are gratuitous, meaning the employer is under no obligation to pay them out. However, there are some circumstances that may create a different scenario. Oftentimes, high-level executives will have defined bonus payments or bonus structures written into their employment contracts. For example, a contract may state that the Chief Executive Officer of a corporation is entitled to a bonus quarterly to be paid out in a specified amount. Under these circumstances, and depending upon the language in the contract, the bonus is guaranteed to the employee per the language of the contract.
Other forms of employment may offer incentives for achieving bonus pay. It is possible that upon reaching a sales number, or bringing in a certain number of new clients, or attaining a certain number of work hours (above and beyond the expected), that an employee will be entitled to a bonus. However, be aware of the language used to define the final determination of such bonuses. 
If a contract indicates the “final determination of a bonus is at the sole discretion of the employer,” it is possible for an employee to meet their target and still be denied their expected bonus. In such situations, it is imperative that you speak openly and directly with your prospective employer and agree on the type of language that will guarantee you a bonus if you hit the required threshold for the same.
If you are negotiating a new employment contract and want to include a clause to protect your bonus, there are approaches you can take in writing of which can be included to define and protect an employee’s right to collect an earned bonus. Examples of these include:
Contractual Language – this language will specifically define the circumstances under which an employee will be entitled to a bonus. Be sure that the final determination is one that is made objectively rather than at the discretion of the employer.Company Policy – this type of bonus is usually defined within the employee’s employment manual. Usually, this type of bonus agreement is generic to all employees and delivered at the discretion of the employer.Award or Enterprise Agreement – These agreements tend to focus on the deliverability of annual pay raises and the standard of work/performance that will be required to meet eligibility for an annual raise.
As both employer and employee, it is important to keep in mind that there will be tax consequences to both the company and the employee when bonuses are being distributed. Both bonuses and commissions are defined as wages and, as such, will incur deductions for income taxes and possibly superannuation payments. It is important to determine these consequences based upon the amount and frequency of the bonuses or commissions earned. A bonus or commission must be qualified in accordance with the following:
If a bonus or commission is below the mandated amount or frequency, it may qualify as a gift and therefore exempt from additional tax payments.Larger bonuses or commissions may invoke the need to be documented on a PAYG. A bonus or commission of this magnitude will need to be recorded by the employer as taxable income to the employee. The employee must also be aware of this type of generated income as they will be responsible for making a payment of taxes, even if the employer is negligent in doing so.Superannuation requirements must also be reviewed as large bonuses and commissions may require both the employer and employee to make their respective contributions to the designated fund.
In the event that you believe you are entitled to a bonus or commission that you did not receive there are steps you should take including;
Review your initial employment contract and employee manual pertaining to bonus and commission paymentsCompare what you believe you are entitled to against the payments that have been made to you by your employer. Document the believed discrepancies.Make time to speak with your employer in private to go over your concerns and expectations of receiving a bonus or commissionIf you cannot come to a satisfactory resolution, consider having your documentation reviewed by a solicitor
While everyone enjoys receiving additional compensation for a job well done, there can be occasions where you believe you are entitled to a bonus or commission that has been unfairly withheld. Under these circumstances, it is imperative that you take the time to review the aforementioned information and your particular circumstances and be prepared to defend your claim.If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.

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When you are entering into family law proceedings, whether it be parenting, property or divorce, there are always a number of myths floating around that may misinform you about the process, and about what you are entitled to. Some of the more pervasive misconceptions include the idea that ‘the family law court favours women’ and that ‘all family law disputes must go to court’. 
In the following post, we look at five popular untruths surrounding family law, based on misconceptions we’ve heard from our clients. 
Myth – All family disputes go to Court 
Did you know that statistically in Australia, only about 5% of people who have a marriage or relationship breakdown end up in court? This is a popular misconception that is easily proven false, as it is now mandatory to seek mediation or family dispute resolution prior to attending court. Families in the midst of separating are encouraged to use family mediation to help resolve their disputes about children and property, instead of using the family law courts. 
Myth – The family law court favours women 
This rather popular myth has been permeated by individuals who believe that Family Court judges always favour the mother in parenting cases. However, there is absolutely no legal ground that says that children should be taken care of by their mothers. The Family Law Amendment (Shared Parental Responsibility) Act 2006 says that when the proceedings for making parenting orders begin, the court works with the assumption that it is in the child’s best interests to remain connected to both of their parents. Being a mother or father makes no difference. 
Myth – Property is always divided equally
There is no 50/50 rule in family law property matters, nor is there any mathematical formula for dividing property between parties. The way that property is divided is very much a discretionary decision based on a number of factors that are set out in the Family Law Act [1975], which essentially only act as a guideline. 
While an equal division of property may appear fair, it is often not the case, as the person who would be worse off in one of these property divisions would be the person who sacrificed time and earning capacity to care for children. The longer this person remained out of the workforce, the more ‘unfair’ a 50/50 division of property is for that person, as it rarely restores that person to an earning capacity equal to that of the partner who continued to work.
This economic reality is acknowledged by section 75(2) of the Family Law Act, and examines the future needs of both parties. A comparison is drawn between them as to who may have a greater need as a consequence of the relationship or marriage. The party who is found to have greater need is given an extra share of the property in recognition of that need.
Myth – We didn’t live together that long so they get nothing 
In a similar vein to the previous myth, people seem to think that even if they are married, if the marriage doesn’t last more than two years, then they get no share of the other party’s assets. While this may ring true for de facto couples who never married, have no children together, and have made no significant financial contributions to each other – it is not true for people who have married.    
The share that one party receives is based on their contributions to both of the parties property.  However, it is extremely rare that a spouse’s property settlement entitlement is 0%. Even if you two were living together for less than two years, the court must still exercise its discretion and apply the 4-step property settlement process.       
Myth – The other party can’t touch my business/property because it’s not in my name 
This is false! Many individuals wrongly believe that their significant other can’t touch their business or property interests in the event of separation because a property or trust owns them. This is incorrect, as essentially in family law, property includes anything to which a party has an entitlement to legally or beneficially. Just because your property isn’t under your name, doesn’t mean that it is out of reach to your spouse. 
If you have questions about how to make your agreement before a divorce both legal and enforceable, call the Family Law department at Owen Hodge Lawyers at 1800 770 780 to schedule a consultation. We look forward to working with you.
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For many, buying a home is an exciting realisation of a long-standing dream. While most purchases are of homes, townhouses or apartments that are already in existence, some people do opt to purchase new residences that have not yet been built, hence, buying off the plan. Contractors and developers for these types of homes often offer the buyer architectural plans, drawings of the exterior and finishing options for a buyer to view or choose from for their new home. However, oftentimes no actual structure is available for viewing prior to making the purchase. While there are inherent risks in deciding to take this route, there are also new protections and wonderful options available to buyers who purchase off the plan.
In 2018 the new Conveyancing Legislation Amendment Act 2018 was introduced to put into place greater protections for buyers who choose to buy off the plan. The Act imparted new disclosure requirements upon contractors and builders, giving buyers more protection from construction defects, material changes and reasonable completion time frames.
Initially, the Act requires the following:
Greater disclosure to buyers The ability to more easily rescind a contract that has been materially altered
Greater disclosure to buyers now includes the right to the following documents and/or information:
Disclosure statementDraft planOngoing revealing of any of the following changes;A change to the drafted plan for the homeAn accurate statement of the property by-lawsThe addition or removal of a property easement or covenantChanges to the completion of the chosen finishes for the homeAny additional matter prescribed by legislation
The standard that is expected to be applied in determining if the property finally delivered is within the confines of the contract is an objective one. Hence, if it is found that any of the changes made by the developer or contractor rise to the level of impeding the reasonable use and enjoyment of the agreed-upon property, the buyer is likely to have a claim for rescission of the contract.
However, there will be some obligations on the part of the buyer. 
If, in the event that the buyer receives the required notice from the developer that changes are being made or receives from the developer a registered plan of changes, and the buyer determines that the changes are material, the buyer must give notice of dissatisfaction and their desire to rescind the contract within 14 days of receiving either form of notice of changes. In addition, the changes must rise to the level of placing the buyer in a situation that, if known at the time of the original purchase, would have reasonably caused him/her not to purchase the property. If the buyer does not give proper notice, the buyer will be deemed to acquiesce to the noticed alterations.
In addition, before purchasing off the plan the buyer may wish to investigate the following:
The proposed building site and surrounding neighbourhoodsView any model homes that may be available for visitingCarefully research the home/property values to determine if the contracted-for price is within the range for the areaInvestigate the reputation of the developer
The buyer should also sit down the developer or their real-estate representative and ask the following questions:
The time frame for building work; estimated beginning to completion datesThe available choices relating to the bathroom finishing options and kitchen fixtures, paint colours, flooring options etc.A thorough review of the financing options for the home including deposits, refunds, changes to fixtures or finishes and the ensuing cost thereofPlace in writing any changes or expectations that differ from the standard contract offered by the developer
Take the time to consider the risks of building off-plan too. Some risks include; a loss in property value by the time the construction is completed, structural quality that does not meet your expectations, changes that are made but are not considered material enough to allow for rescission (such as small changes to doorknobs, kitchen fixtures, neutral colors, carpeting or other minor flooring changes), and delays in completing the construction. All of these risk factors are possible when waiting for an off the plan home to be finished and move-in ready. If you are flexible and willing to take in stride short delays or small changes, or altered expectations, then this might be the perfect chance to be creative and to make a home your own.
However, as with all property purchases, it is important to enlist the aid of various professionals as you move through the process. Take the time to speak with realtors who are familiar with the area, investigate with local law enforcement regarding the safety and value of the properties in the neighbourhood, ask neighbours and friends about the reputation of the schools in the area and have all of your contracts reviewed by a solicitor prior to signing.
If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
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It may seem strange to those of us who are fond of pets, but at the end of a de facto relationship or marriage, pets are considered property under Australian law. Where they go and who they live with is covered in the property settlement. But truthfully, if you are at loggerheads over the pets, there may be some other tangled property situations where an experienced family lawyer may be helpful.
Consider the hypothetical situation of Bob and Sally. They are in a relationship and decide that Bob should move into Sally’s house. They purchase a pet dog, which Sally registers as she picks it up. During the two years they live together, they buy furniture for the house, and both buy cars. He helps out around the house by painting it and fixing the fence. He also takes care of the dog and walks it every day, which is easy for him as he owns his own business. However, one day Sally and Bob fall out and decide to separate.
The question arises, who owns what? (including the dog)
Married, de facto, or just dating?
Lots of people choose not to formalise their relationship through marriage. There are a million reasons, but sometimes it just seems simpler. One thing should be clear, however. Since 2009, separating de facto couples are now treated the same as married couples in terms of the division of property and the payment of spouse maintenance.
The real question is often whether there was actually a de facto relationship, and that will depend on the totality of circumstances. Among the factors that a court will consider are:
Length of the relationship;Nature and extent of common residence;Whether a sexual relationship exists (it does not matter whether the individuals are of the same or different sex);Ownership of your property; Care and support of children;Degree of financial interdependence; andReputation and public aspects of the relationship.
The last factor, in particular, makes it unlikely that individuals could “accidently” find themselves in a de facto relationship. There must be at least some intention to create ambiguity.
Are Bob and Sally in a de facto relationship? The hypothetical, like life itself, is ambiguous. There are no children; there does appear to be property, including the poor dog. Neither appears to have another residence, and we do not know about financial interdependence or how they hold themselves out to other people.
Clearly, however, if Bob and Sally are in a de facto relationship, then their property must be divided on separation. 
Would it be different if Bob and Sally were only together for a year and had a child? Stay tuned.
What property is subject to division
The property subject to division (referred to as marital assets, but applicable in de facto situations as well) often encompasses more than couples anticipate. These include:
all real estate, including the family home;cash in bank accounts, both joint and separate;corporate shares;superannuation for both parties;motor vehicles;household items, including items of value such as antiques or artwork;jewellery;tools of a trade;business assets owned or controlled;any inheritances received or anticipated during the relationship.
Sally may have to share the value of her house. Bob may have to share his IT business and superannuation if any. Sally’s registration of the dog is not dispositive of individual ownership, especially since Bob also participated in regular dog care.
How will the property be divided?
It is not necessarily a 50/50 split. The court will look at a number of factors before determining whether a proposed property division is just and equitable for both Bob and Sally. Those factors include:
The assets, liabilities and financial resources they have. Some assets may have to be liquidated in order to be divided, but some assets can’t be liquidated, like a labradoodle, so factors such as ownership rights may need to be explored to resolve any dispute.The contributions of both Bob and Sally to the acquisition, maintenance and improvement of matrimonial assets (both direct financial contributions and non-financial contributions, like payments of deposits, cooking, mowing the lawns, fixing the fence). The future needs of each of them and whether one person needs a bit more of an adjustment – for example, where will they both be financially in five years’ time? The court may take into account factors such as their age, health and capacity for appropriate gainful employment.Finally, taking into account the factors for consideration from 1-3, the court will need to consider whether the proposed division is a reasonable outcome for both people.
When considering the above steps it is easy to become emotionally invested. After all, this is everything you have built together. However, a good family lawyer will guide you through the property settlement process, focusing on a principled outcome that is commercially sound so that both Bob and Sally can move forward in life.
How to keep it simple
Dealing with such a situation in the above-presented way is the goal for many couples who are in a de facto relationship.  The best way to make sure that pet and other property ownership issues stay simple is to seek advice about your rights and entitlements early after separation before unnecessary disputes arise. Upon agreement, you and your former partner can formalise it quickly and cost-effectively by entering into a consent order sealed by the court.
If at the end of a de facto relationship, you find yourself faced with difficult problems surrounding property division, the family law solicitors at Owen Hodge Lawyers are willing and able to help. Please call us at 1800 770 780 to schedule an initial consultation specifically tailored to answer your questions.
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Disputes between employees and employers can become personal and heated. And, especially when the employee has no access to legal counsel, he or she may pursue a claim that actually has no basis in law.
It may be a matter of spite or a misunderstanding of the legal standard. Either way, it’s a difficult situation. But in the case where a claim has no merit, an employer may move for dismissal. But because dismissal involves prejudging a claim before it is fully argued, the Fair Work Commission sets a very high bar.
In order to deter claimants from making meritless claims, the Commission may further require a claimant to pay an employer’s defence costs.
Frivolous, vexatious or without any prospect for success
An application will be considered frivolous or vexatious where it:
is so obviously untenable that it cannot possibly succeed;is manifestly groundless;is so manifestly faulty that it does not admit of argument;discloses a case which the Commission is satisfied cannot succeed, ordoes not disclose a cause of action.
Generally, for an application to have no reasonable prospect of success, it must be manifestly untenable and groundless.
From a procedural perspective, the Commission might make this decision on the application from an employer after it hears the applicant’s case but before the employer has presented any evidence.
The threshold of proving that an application is vexatious or malicious is no easy feat. The usual examples are those where it appears that an employee is motivated by the idea of “making their employer pay” or “taking their employer down at all costs.”
Assessing costs
In general, each party to a matter before the Commission must bear its own costs in either bringing or defending a claim.  However, the Fair Work Commission does have discretionary powers to require a claimant to bear some, or all of the costs incurred by the employer in relation to an application where the applicant made the application vexatiously or without reasonable cause or where it should have been reasonably apparent to the applicant that the application had no reasonable prospect of success.
It should be clear, however, that orders for costs are rarely made even when a claim is dismissed. Cost orders are not automatic when a claim is dismissed. Rather, this is a second and subsequent decision.
How far can an employee pursue a claim that has no merit? To be honest, the answer is fairly far. But where a claim can be shown to be genuinely frivolous, vexatious or to have no prospect for success, an employer may ultimately truncate the process. In severe cases, the Commission may also require a claimant to pay the employer’s costs of defending against the claim.
If you have questions about how to deal with an employee who appears to be pursuing a claim that has no merit, the attorneys at Owen Hodge Lawyers would be happy to advise you. Please call us at 1800 770 780 to schedule a consultation.
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No one really anticipates a dispute involving their executors, but they happen fairly frequently. These quarrels can waste estate assets and, perhaps more importantly, damage relationships for years to come.  This is surely not what anyone intends.
If you are making your estate plan, talk to your attorney about what can be done to avoid these problems. If you find yourself embroiled in an executor dispute, seek professional help to keep the dispute from getting out of hand. The more quickly it can be solved, the less damage it may do.
What could go wrong?
Perfectly reasonable people may act in unreasonable ways when a loved one dies. But some situations can be particularly fraught – for example, when an adult child of an earlier marriage and a second spouse are asked to serve as co-executors. A DIY Will can cause problems and a will that treats a spouse or child unequally is likely to also cause challenges. A very large or complex estate is more likely to be the subject of a dispute than a small one – more money, more problems.
There may be nothing actually wrong in any of these situations, but they deserve special care and attention from the outset.
Time, money and influence
A second broad category of potential problems involves administrative mishaps and/or the careless handling of assets. These are far more common, but no less troublesome.
The list of possible pitfalls includes:
Undue delay in applying for probate. In NSW, executors customarily apply within six months of the date of death. Distributions should take place within a year; beyond that beneficiaries may become restless;Undue haste in applying for probate can cause certain assets to be overlooked;Disputes about the valuation of certain kinds of assets like real property or collectibles;Allegations about undue influence on the part of one beneficiary, especially where the distribution called for under the will is unequal or unusual;Disputes about the transfer of assets out of the estate during the final months or years of the deceased’s life, especially if done under a Power of Attorney; orDisputes about the costs of settling the estate, including fees paid to solicitors, real estate agents and appraisers.
Executors often feel honoured to be asked to administer an estate. It is unfair, however, to expect them to have the wisdom of Solomon to resolve all potential disputes.
How to avoid problems
There are several relatively simple steps individuals who are engaged in estate planning and their executors can do to avoid many of these issues.
For those making a will:
Engage a competent estate lawyer to draft your will and review your entire estate plan to ensure that your wishes will be accomplished and your loved ones are taken care of;Discuss the plan with your executor and those who will benefit or who expect to benefit from your plan. Secrets and surprises are among the greatest causes of disputes; andWhere appointing multiple executors, be mindful of the nature of their relationship with one another.
For executors:
Keep careful financial records of estate assets and the costs of administering the estate;Keep a calendar of deadlines;Manage beneficiary expectations through frequent communication; andWhere you believe that you either have or may appear to have a conflict of interest, consult with an attorney about the possibility of renouncing or otherwise limiting your role or involving an independent co-executor.
The attorneys at Owen Hodge Lawyers would be happy to help you avoid and resolve common executor disputes. Call us at your earliest convenience at 1800 770 780 to schedule a consultation.
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The first reaction is confusion. Surely that long gash was not there when you parked the car last night. Why is the tail light smashed?
The second response is likely unprintable. By the third or fourth turn, you may be wondering whether your rates are going to go up over a hit-and-run accident with which you had absolutely no control over.
Your rates may go up if you cannot find the other driver, so quick action is important.
Hit-and-run accidents
The legal understanding of hit-and-run accidents includes any motor vehicle accident where one driver leaves the scene without exchanging details or checking to see if everyone else involved is all right. They include tragic pedestrian and cyclist accidents and the more common situation when someone hits a parked car and vanishes without a note.
Either way, the victim is stuck with the problem.
The insurance situation
If you find your car has been sideswiped, you may be covered if you have comprehensive coverage. Comprehensive insurance covers damage to your car from a wide range of sources, including damage from other drivers and car accidents.
Even with comprehensive coverage, it is important to gather information, to the extent that it can be gathered, about who caused the damage, their registration and their address. This may not be possible if that person drove away after hitting your car.
If you cannot track down the driver who was at fault, then your options may be to pay for the repairs yourself or make a claim on your comprehensive car insurance and pay any applicable excess. This option could also result in your premiums being increased.
If with the help of the police you are able to track down the guilty driver, then your chances are better for recovering the cost of repairs from the other driver.
If you do not have comprehensive insurance, finding the other driver is even more important.
What should I do in the aftermath of an accident?
You should try to determine the extent of the damage, and document the incident as soon as possible by doing the following:
Make a note in writing of the time at which you discovered the damage;Record any other details that may be relevant, such as whether you heard a loud crash in the night and what time it may have been;Take photos of the damage to clearly capture the extent of damage.
Make sure the damage is well documented before you drive the car and, if it handles strangely, or it seems there may be more than just a cosmetic problem, park it somewhere safe as soon as reasonably possible. Driving your car could increase any damage caused by the initial accident. Any subsequent damage from driving the car won’t be covered by insurance and may invalidate your claim.
If the other driver remains briefly on the scene but refuses to provide details after an accident, take note of their license plate if possible and call the police.
What if you are injured?
Let’s suppose that it is not a simple sideswiped parked car. What if you are hurt?
If you are injured in a hit-and-run accident, and the at-fault driver cannot be identified, you can then lodge a claim against the Nominal Defendant and receive compensation.
However, you will need to make a reasonable effort to identify the at-fault vehicle, such as phoning the police and placing newspaper ads calling for witnesses. There are also limits on how long after an accident you can lodge your claim, so check the terms and conditions of the scheme in your state or territory for more information. The claims process is similar to that you would follow against a compulsory third-party insurer.
If you commit a hit-and-run
This is an entirely different situation. If you are to blame, you will not be able to claim from your car insurance. Situations can be complicated, we understand. Most importantly, by driving away from the accident, you may be committing a crime. You should seek legal representation immediately. Your insurance coverage is the least of your problems.
If you have questions about insurance, insurance liability or any other issue arising from a hit-and-run accident, the attorneys at Owen Hodge Lawyers would be glad to help. Please call us at 1800 770 780 to schedule a consultation.
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In New South Wales, there are two types of professionals who can perform services related to confirming identities and witnessing documents of a legal and binding nature. The one that is most commonly used is a Justice of the Peace.
A Justice of the Peace can be used for identity confirmation, certifying true copies of original documents, and witnessing affidavits and statutory statements. The second, a more significant form of legal verification, is done by a Notary Public, also known as a Public Notary. 
There are two major differences between a Justice of the Peace and a Notary;
1) A Notary must be a lawyer with at least 5 years of legal practice
2) A Notary can verify documents for international use
And, while all of the rights and responsibilities of Justice of the Peace are also conferred on a Notary, the reverse is not true.
A Notary is a position that has several requirements that must be met before the honour can be bestowed upon someone. These requirements include;
Appointed by the Supreme Court pursuant to the Public Notaries Act (9177)Being a LawyerHaving completed 5 years of legal practiceComplete the prescribed Notarial Practice CourseApply through the Legal Profession Admission Board
In addition, a Notary has significantly more responsibilities than a Justice of the Peace as they are granted their own seal for use in Australian, foreign and international courts. Hence, a Notary can provide the following acts of verification;
Verify a person’s identity by witnessing a signature or fingerprintsAuthenticate documents which are domestic and also for international purposesTake a witness’s statement for official useComplete certificates of law in overseas courtsCertify the correctness of a document allowing it to be taken as an original in international courts of law
For documents going overseas, a Notary Public must know which process will be necessary for the documents to be fully validated. The process can require between one to three steps. The steps include;
Notarising the document before it is sent overseasAuthenticating the document with the Department of Foreign Affairs and TradeSending the document overseas to the relevant legal agency for approval and verification
The types of documents a Notary is accustomed to verifying and certifying include many that are entered into by people on a relatively regular basis, including trusts, estates, loan documents, contracts including both land conveyance and business contracts, powers of attorney, licenses and deeds.
Legal verification at this level is a necessary and protective move when entering into any of these documents, thereby providing the maximum amount of legal protection for all involved parties. This type of verification gives the document complete authenticity. By using a Notary in the verification of any of these documents the parties ensure that everyone signing the document or partaking in the contract, loan or license, is of sound mind and well informed of the effects of affixing their signature to the document.
A final significant difference between a Justice of the Peace and a Notary is that a Notary can officiate over and administer oaths, affirmations and offer legal services and advice. A Justice of the Peace cannot do any of these tasks. The types of services that a Notary can perform include;
Taking declarations and legal affirmations including affidavitsAcknowledging deeds and other conveyance of land and propertyProcessing notes of bills and exchangeProviding notice to foreign drafts
Using a Notary for significant domestic transactions and for all overseas legal issues is imperative. One of the most common uses of the services of a Notary is for Estate concerns, including Wills and Trusts and Power of Attorney. These documents deal with sensitive legal issues that are strongly dependent upon the understanding and mental capacity of the signatories. Hence, validation of identity, signature, and the mental clarity and ability to enter into such agreements, is paramount in the legal validity of these documents.
If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
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Buying a first home is incredibly exciting, but there are many issues that you must research before you move forward. The biggest decision you will initially have to make is whether you will be viewing homes for private sale or homes up for auction. This will make a significant difference in how you approach your search for your new home.
Starting with auction purchases, it is important to know the following about this method of home buying;
Auctions are listed with a date and time for the eventYou do have the right to inspect an auction listing prior to the eventAn auction listing contract can be negotiated before the auction beginsAuctions move quickly and do not afford time to consider counter-offersOnce purchased at auction, there is no cooling-off periodPricing at an auction is not set but rather is done by swift bidding
While purchase via an auction can be very exciting, it is important to remain clear-headed and know your limits. It is easy to get swept up in the excitement of owning a home that you adore, hence bidding outside of your true financial capabilities. In addition, if you do choose to have the home inspected, or negotiate the specifics of the purchase contract, prior to the actual purchase, and you do not buy a home, these monies will be lost to you.
If you decide to purchase through an advertised private sale, also known as a private treaty sale, these factors will be different from an auction sale;
The purchase price will be a set amountYou will have the opportunity to make an offer at the purchase price or less if you so desireThe price can, and often does, go through a negotiation processNegotiations can be time-consuming and stressful for the purchase price and other amenities available in the home that could either stay with the home or go with the owner (ie: washer/dryer, refrigerator, furniture, window treatments etc.)Inspections will be anticipated and should be completedContracts can include an escape clause if inspections reveal major issues with the home such as structural issues or pests (termites, ants, rodents etc.)Private treaty contracts offer a 5 day cooling-off period with a minimal penalty for backing out of the purchase
But, even more importantly, before moving forward with any strategy, it is imperative that you take a full and accurate financial inventory of your true income state.
The following factors and questions need to be considered and answered honestly to prevent taking on more financial responsibility than you are capable of handling:
Your expected income for the next 12 months (excluding overtime and/or bonuses)Your current level of debt, including student loans, credit cards, car loans and various insurances
The financial range of your purchase priceAn affordable range for your mortgage paymentThe cost of property and community taxes (including public school taxes)An estimate on the cost of homeowner’s insuranceThe amount of deposit you can afford; traditionally 20%If you do not have a 20% deposit, the cost of lender’s mortgage insuranceAn estimate of new homeowner costs for the interior and exterior of the homeResearch various mortgage lenders to find one that fits your needsBe sure that you have enough financial stability to qualify for a loan
Regardless of going to auction or choosing a private treaty sale, you will need the answers to all of these financial questions.
Next, be willing to adjust your plans in accordance with what is financially feasible for you. If you find that you cannot own a home as a single person, or that you cannot afford the size home you want in a particular neighbourhood, consider the following;
Purchase a home with a solid business/homeowner partnerConsider buying something smaller in a good neighborhood, rather than something big in a less desirable neighborhoodAsk a family member to invest in the property with you
Lastly, the biggest mistake a first time home buyer can make is to get swept up in the emotion of buying. There are several ways to keep this from happening.
First, get professional advice from someone who is knowledgeable in the area where you want to purchase the property. There are many different types of real estate agents who specialise in selling particular types of properties. Find an agent that specialises in the neighbourhood you are interested in and the type of housing you have decided to purchase.Second, beware of financial scams. If you are considering a grant or a form of non-traditional mortgage, be sure to read the contract carefully and then have it reviewed by a solicitorForgoing inspections to save money is always a mistake. It is important to have a structural inspection for the basic foundation of the home, electrical and plumbing.Do not purchase out of fear of never finding what you really want. If the home requires too many compromises in your wishlist, walk away.
Purchasing your first home is meant to be an exciting event which can only be enhanced by gaining as much financial and real-estate knowledge as you possibly can. Therefore, take the time to review your finances, get expert advice, make a wishlist and remain calm and clear-headed throughout the process. These factors will be the perfect recipe for a successful, happy and long-lasting positive investment in your future.
If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
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