July 21

The Federal Government recently announced substantial increases in fees

The Federal Government recently announced substantial increases in fees to be paid to both the Family Court and Federal Circuit Court in respect of family law cases. The legal profession through both the Law Council of Australia and the various state representative bodies (including the Law Institute of Victoria) has voiced opposition to the fee increases as they will seriously prejudice access to justice, especially for less affluent members of the community. The Government sought to introduce fee increases on an earlier occasion, but the proposal was rejected by the Senate. It has threatened that if the increases are not approved on this occasion, savings will be made by closing court registries and not replacing six judges who have retired. Either or both would have a serious effect on access to justice and the timely delivery of court services.

This is just another case of governments (of both persuasions) consistently refusing to adequately resource the federal courts, and to properly fund legal aid so as to enable access to those courts.

To view more information about our Family Law service please click here

July 7

Who can draw up a Will?

There is no formal requirement that a lawyer must draw up the will, but if the will-maker is in doubt as to any proposed provision, either a solicitor, the State Trustees, or any private trustee company should be consulted as to the wording of the proposed will.

A will is an important document as it should deal with every asset the testator owns, and should therefore be kept in a safe place (e.g. in a bank, with a solicitor, or in a private safe). At Kelly and Chapman we keep wills and any other important legal documents such as certificates of title free of charge. The executor(s) or a relative should be told of the will’s whereabouts so that it can be easily located when the will-maker dies. The executor could also be given a copy of the will in a sealed envelope.

It is a criminal offence to conceal a will or codicil. A person concealing or retaining a will may be liable to pay damages to any person defrauded or any persons claiming under them for any loss sustained through retention or concealment.

To view more information about our Wills service please click here

July 7

When an executor does not wish to act

There is no obligation that you must accept the role of executorship, even if you had agreed with the will-maker that you would. If you don’t want to act when the time comes, and you have not meddled into estate property, you can give up the right to do so. To do this you renounce the executorship, meaning you renounce your right to probate of the will.

If you were named as an executor, you have the right to apply for a grant of probate, because you were the specific choice of the will-maker in their will to be their executor. It also means you have the right to renounce it. Probate is approval from the court to deal with the estate. To renounce executorship or probate means you give up your right as executor appointed under the will to apply to the court for a grant of probate.

To view more information about our Wills and Probate service please click here

July 7

Two Types Of Co-Ownership

There are two ways of co-owning property – JOINT TENANTS AND TENANTS IN COMMON. The legal entitlements of these are different, with different outcomes for ownership interests on death.

Co-ownership of property in these ways is not restricted to real estate, but can apply to other forms of property, such as joint bank accounts and credit card accounts. So a question for co-owners is who will inherit their interest?

An important attribute of joint tenancy is A RIGHT OF SURVIVORSHIP. It means that when one co-owner dies, the survivor(s) automatically own the property by the operation of law. This occurs independently of a will (and hence the probate process).

When ultimately there is a sole survivor, that person will own the whole property, and they may deal with it as they wish. So it is important for a sole survivor to revise their will to take this change into account. If not the rules of intestacy apply, which may lead to an undesirable outcome.

With TENANTS IN COMMON there is no right of survivorship. Instead, each co-owner has a separate, undivided share in the property (although not in a physical sense), and may independently deal with it as they wish. Therefore, that share will form part of their estate and they may choose who will inherit it through their will.

To view more information about our Wills and Estates service please click here

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