Legal Blog

  • How discretionary are discretionary trusts?

    Family (also often called discretionary ) trusts have been protecting assets, policing family benefit sharing, simplifying inheritance and spreading family income and the tax that goes with it. On average, many of those trusts can theoretically benefit parents, children , grandparents, grandchildren, siblings and aunts and uncles, all multiplied by two to include their spouses – so, many.
  • Divorce: Overview

    Divorce is the legal end of a marriage (dissolution of marriage). Australia has ‘no fault’ divorce. This means that when granting a divorce, the Court does not consider the reason/s the marriage ended. Neither spouse needs to prove that the other did (or did not) do something which caused the breakdown of the marriage. The only.
  • How Binding is Your Binding Death Benefit Nomination

    A recent case considered by the Queensland Supreme Court Williams v Williams & Anor [2023] QSC 90 has highlighted the importance of taking all of the required steps to ensure a binding death benefit nomination is valid and capable of giving a legally binding direction to the trustee of a superannuation fund for the payment of death benefits.
  • Guardianship and Administration Orders

    What is Guardianship and Administration? Guardianship or someone being appointed as an administrator applies in situations where an individual with a disability has limitations on their ability to make decisions for themselves, whether that be for their personal life, financial affairs, or their housing. They may need someone to make all those decisions, or perhaps.
  • Family Violence Intervention Orders

    What is Family Violence? Family violence is defined in s5 of the Family Violence Protection Act 2008 (Vic) as being behaviour that is physically, psychologically, emotionally, economically abusive or otherwise threatening, coercive or dominating behaviour that causes a family member to feel fear for their safety or wellbeing, or for another (such as a child)..
  • What Are Parenting Orders?

    Sometimes, parenting disputes can lead to parenting orders to be made by the court, which are orders that outline the parenting arrangements for a child or children of a relationship or marriage. These orders will include information about who the child/ren will live with and where, whether one parent has sole parental responsibility, and who.
  • Questions to consider when preparing your estate planning

    Who you want to take care of your financial, personal, and medical affairs if you were to lose capacity by way of Enduring Powers of Attorney (financial and personal) and Medical Treatment Decision Makers? Who you want to be your executor and/or trustee? Do you need to consider incorporating a testamentary trust in your Will?.
  • What is a deceased estate?

    When a person dies leaving assets in Victoria, somebody, usually the executor of the deceased person’s Will, has to deal with the administration of the estate. Administering the estate means following the legal processes to distribute the estate as the Will-maker wanted. The person does not have authority to deal with the assets of the.
  • Testamentary capacity. What is it?

    Testamentary capacity is a gauge of the mental faculties of a testator when they create their will. A testator must be of competent mind, understanding, and memory in order to make a valid will. All testators are assumed to have testamentary capacity until it is proven that they do not. Whether or not a client has.
  • Powers of attorney made before 1 September 2015

    The Powers of Attorney Act 2014 commenced on 1 September 2015. Are the previous Powers of Attorney valid and how can the Principal revoke them? Enduring powers of attorney (financial) and enduring powers of guardianship properly made before this date are valid. Revocation of enduring power of attorney (financial) A person who made an enduring.
  • What is the effect of marriage and divorce on a Will?

    It is often that that a marriage or a divorce automatically revokes a will.  Is it so? Marriage Section 13 of the current Victorian Wills legislation  deals with the effect of marriage on a will. Marriage revokes a will unless the will was made in contemplation of that particular marriage. The contemplation need not be.
  • What is a Reseal of Probate?

    A reseal is necessary as the personal representative appointed (executor or administrator) by a grant in a foreign jurisdiction cannot deal with assets in Victoria, although enquiries should first be made with asset holders as some, such as banks and share registries, may accept a grant from another jurisdiction together with satisfaction of other requirements..
  • Binding Financial Agreement

    A Binding Financial Agreement is shortly called as BFA. As per the Family Law Act 1975 (Cth) the agreement can be entered at any time of the relationship before, during and after. The agreement deals with all financial and property issues between the parties, including the claim for spousal maintenance. The agreement must be drafted according to.
  • COVID-19 early access to Superannuation and its impact on Family Law Property Settlements

    Pursuant to the information on the Australia Taxation Office’s website, individuals who are financially affected by COVID-19 can access some of their superannuation early. Those individuals will not need to pay tax on any amount released to them and will not need to disclose it when lodging their tax returns. Eligible parties can apply to.
  • New Medical Powers of Attorney from 12 March 2018

    The Medical Treatment Planning and Decisions Act 2016 provides a framework for making decisions about medical treatment when people do not have capacity to make their own decisions. The Act is part of a broader shift towards empowering and supporting people to make their own treatment decisions. The Act does not authorise physician assisted dying.
  • Do you have a will? Do you know where it is?

    Many Australians are risking their wealth, considering somewhere between 25 and 40 per cent of people die intestate, without a Will in place. Part of that statistic is influenced also by a loss of documents. So not only is it important to have proper, strong, appropriate documents that fit your plan in place … but.
  • Capacity to make decision

    Concerns about capacity of a person to enter into legal transactions is not new, nor is the acceptance that capacity is issue-specific and that incapacity is not static and can change. The Law Institute of Victoria (LIV) will be launching its “ Revised Capacity Guidelines” as a guidance for lawyers to assess the client’s capacity.
  • Electronic Conveyancing

    We are proud and very excited to confirm that Elizabeth Palumbo from Kelly and Chapman’s Property Department has now conducted the firm’s first electronic conveyancing settlement using the “PEXA” platform. PEXA represents a leap forward in conveyancing offering our business greater efficiency and our clients’ greater piece of mind that settlements will occur on a.
  • Trustees of a Family Trust

    The position of a Trustee is an important position. The Trustee’s duties are covered between legislation in each state, commonwealth legislation and case law. Trustees can be individuals, one or more than one and also companies. Trustee’s Duties Trustees of family trusts have many duties. Many of these have been formulated by Judges through case.
  • Family/Discretionary Trust – Corporate Trustee versus Individual Trustee

    The last 3 decades have seen a substantial growth in the number of people in Australia establishing a family/discretionary trust. The benefits of such an arrangement have been largely touted by professionals around 2 areas – asset protection and tax benefits. The issue of whether a corporate trustee is best suited as opposed to an.
  • 1 July new CGT withholding payments for real property sales of $2M or more

    Key points New requirements for contracts of sale of real estate worth $2M or more entered into from 1 July 2016. All purchasers of such real estate must withhold 10 percent of the purchase price unless they are given a clearance certificate by the vendor. Vendors of such property who are not foreign residents need.
  • Changes to the Power of Attorney Act 2014

    A Powers of Attorney Amendment Bill 2016 has been introduced to parliament. The Bill proposes to make various changes to the principal Act, the most welcome of which is to clarify that multiple alternative attorneys can be appointed for one principal attorney or supportive attorney. Other notable changes include: removing the option to make a.
  • Good News for Transport Accident Victims

    In 2013 the previous State Government legislated to limit the circumstances in which persons injured in transport accidents could sue for common law damages. The restrictions principally affected those suffering accident-related psychological injuries. The legal profession has been lobbying long and hard to have these changes revoked. It is pleasing to note that the Andrews.
  • Dependants and Death Benefits

    An elderly self-managed superannuation fund (SMSF) trustee was convinced that his adult son, who is not financially dependent on him, would receive all his superannuation savings upon his death totally tax-free. The trustee thought that because his adult son is classified as a “dependant” under the superannuation law, he would receive the benefit tax-free. He.
  • Powers of Attorney – New legislation

    The Powers of Attorney Act 2014 (the Act) will commence on 1 September 2015. The purposes of the Act are to: clarify and consolidate Victoria’s enduring powers of attorney laws create the role of supportive attorney improve the protections against abuse of enduring powers of attorney. Powers of Attorney made under existing legislation will remain.
  • Superannuation Death Benefit Payment

    On 23 June 2015 the Federal Court of Australia gave judgment in an appeal from a decision of the Superannuation Complaints Tribunal (“SCT”) to affirm the trustee’s determination to pay death benefits to the deceased’s adult children. The decision can be accessed here: The deceased made no binding death benefit nomination and the legal.
  • 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.
  • 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.
  • 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.
  • 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.
  • Stopping (Ex) Employees from Stealing your Business

    Restraint of trade clauses are now quite commonly used in employment contracts, but this wasn’t always the case. A covenant in restraint of trade, also sometimes referred to as a ‘non-compete’ clause, is a term in an employment contract that requires an employee, after leaving an employer, not to perform a particular type of work.
  • Resolving Property and Financial Matters at the end of a Relationship.

    Generally speaking, there are 3 issues to discuss after a relationship breaks down irretrievably. 1. Divorce (if the parties are married). You cannot apply for a divorce until separated for at least 12 months. Separation can be under the same roof if not living as a couple. 2. Parenting. If there are dependant children (under.
  • Contracts – to read or not to read !

    When helping our client Purchasers, a review of the Contract of Sale and Vendor’s Statement (Section 32) by Kelly and Chapman before signing will give you an understanding of what it is that you will be signing if your are the winning bidder. Contract of Sale documents can be very complex by nature and should.
  • Important developments in the law of Family Provision

    Significant amendments to the provisions regarding persons eligible to make Family Provisions claims commenced on 1 January 2015. It applies to the estates of all persons dying on and from 1 January 2015. The categories of possible claimants are wider than in the previous regime but it also excludes a number of claimants previously included..
  • Trading Names, Business Names, Company Names – Basics

    A trading name was a name used by an entity or person to trade under, without it being registered as a business name. Trading names were collected prior to 28 May 2012 by the Australian Taxation Office (ATO). They will be displayed on the Australian Business Register (ABR) until 31 October 2018. You are still.