Creditor’s Statutory Demand – When to stick your head in the sand (and when not to)

Creditor’s Statutory Demand – When to stick your head in the sand (and when not to)
November 14, 2018 /

By Sylvia Hoefnagels

Associate

If you have a company, chances are that sometime throughout the life of your business, you will receive (or issue) a creditor’s statutory demand.

It may be enticing to ignore any demand received, especially if it seems without any basis, but you should not ignore a creditor’s statutory demand: there are very strict deadlines (in general, 21 days from the date you received it) and your company could be placed in liquidation if appropriate steps are not taken within that time.

Similarly, if you issue a creditors statutory demand on a company – and then ignore any submissions made in response to that demand, you may find yourself on the other end of a court hearing and be ordered to pay costs on the indemnity basis. An example involving Robbins Watson is Corio Homes Pty Ltd and Sailor Venus Pty Ltd where a costs order on the indemnity basis was made in our client’s favour.

If you are not sure whether a demand can be ignored, or whether you can use a creditor’s statutory demand, contact us for an initial consultation. 

Should you wish to download a copy of this article click HERE.

DISCLAIMER:
  1. The information on this blogpost is of a general nature, not intended to be specific professional advice.
  2. Please seek the opinion of a professional to advise you of your situation.
  3. The author’s opinions are his/her own and do not represent the views of any other person, firm or entity.
  4. The author is not responsible for the accuracy or appropriateness of third-party comments or articles, including those of guest authors and editorial contributions.
Any comments, letters, and other submissions are moderated and may be edited or withheld at the sole discretion of the author.

Executors’ Commission

Executors’ Commission
November 12, 2018 /

It seems to be a widely known anecdote that the executor of an estate can claim commission for their work – though in actual practice, it occurs relatively infrequently.  But executors should be aware that they are entitled to claim commission for their “pains and troubles” in administering an estate.  Under Queensland law, claiming executors’ commission is actually the rule – not the exception. 

Executors’ commission is not precisely calculated through some mathematical formula.  There is a wealth of case law as to general rules that may be applied, but there is no agreed formula to be applied, and so each claim for executors’ commission will be based on its facts.

Robbins Watson has successfully claimed executors’ commission for our executor clients.  Where possible, we seek the agreement of estate beneficiaries to the award of commission – however if a court application is required, we stand ready to file proceedings and obtain court orders for executors’ commission on behalf of our clients.

Should you wish to download a copy of this article click HERE.

DISCLAIMER:
  1. The information on this blogpost is of a general nature, not intended to be specific professional advice.
  2. Please seek the opinion of a professional to advise you of your situation.
  3. The author’s opinions are his/her own and do not represent the views of any other person, firm or entity.
  4. The author is not responsible for the accuracy or appropriateness of third-party comments or articles, including those of guest authors and editorial contributions.

How to win your court case – evidence

How to win your court case – evidence
November 5, 2018 /

The answer to this question starts with “evidence”. It is not necessarily who is right and who is wrong, but who can prove the allegations.

When we first ask someone how they are going to prove their case, they often say ‘someone told me’. This is considered hearsay which is not admissible (other than in a few select situations).

The best evidence is where there is an original document supporting your case. Any witness giving evidence, must do so from their own observations (I saw, I heard, etc). Also, even though it may be with the best of intentions, if the witness does not remember something, they should say so. Otherwise, the witness may come undone in cross examination and the Court will have no other option but to place less weight on their evidence, if at all.

So, the best way to win your case is to prepare your evidence early, and to try find the best evidence possible. Not only will this increase your chances of winning your court case, it will also reduce your legal costs in the long run – the better your evidence is, the more likely you can achieve an agreed outcome.

By Sylvia Hoefnagels

Associate

Should you wish to download a copy of this article click HERE.

Handy tips for making a claim for further provision – how you can reduce your legal costs

Handy tips for making a claim for further provision – how you can reduce your legal costs
October 31, 2018 /

By Vy Tran – Solicitor

When a loved one passes away, it can be an emotionally erratic time in your life.  In our experience, we notice that clients often book an appointment with us a few days after someone passes away. 

Clients are often relieved to hear our advice that there is no rush, and for them to take some healing time to mourn for the loss of their loved one.  Once you overcome the shock of your loss, if you feel that you have unfairly been treated in the will, these are some helpful suggestions on what you should do to prepare for your initial consultation with our office:

  • Have a look at our RW Blog (https://www.robbinswatson.com.au/?s=further+provision) and read our articles on claims for Further Provision – this will give you a general understanding on how claims are undertaken.  We understand that there may be confusing legal terminology out there and you may feel an overwhelming sense of information overload –  that is where we come in, we are here to assist you in navigating through the complex legal principles and solidifying your understanding of your claim.
  • Be organized! At your appointment, locate a copy of the will, bring a list of assets/liabilities of the estate and be prepared to answer some personal questions about your own finances – this saves you legal fees on the cost of investigating what is in the estate for you. Please note that if you are dealing with an unreasonable executor and are having difficulty in obtaining the information, we can assist you.

***Remember your time limitations – make sure that if you are thinking of making a claim for further provision that you contact us within 6 months of the date of death of your loved one.

If you want to know more, please contact me for a complimentary consultation on 07 5576 9999.

Should you wish to download a copy of this article click HERE.

DISCLAIMER:
  1. The information on this blogpost is of a general nature, not intended to be specific professional advice.
  2. Please seek the opinion of a professional to advise you of your situation.
  3. The author’s opinions are his/her own and do not represent the views of any other person, firm or entity.
  4. The author is not responsible for the accuracy or appropriateness of third-party comments or articles, including those of guest authors and editorial contributions.

What is Probate, and is Probate necessary

What is Probate, and is Probate necessary
October 26, 2018 /

One of the most common questions for a new executor is whether they will need a grant of probate – and for that matter, what is probate?

Put simply, a grant of probate is a court order made to an executor, naming the executor as the person to deal with on behalf of the deceased person’s estate.  For completeness, it also annexes a copy of the will admitted to probate so the last valid will of the deceased is readily apparent.

So why bother?  Under Queensland succession law, obtaining a grant of probate is not strictly required (in contrast to many of the other Australian States and Territories).  However, many banks and estate asset holders require the executor to obtain a grant – this way the asset holder can rely on a Supreme Court order (i.e. probate) to deal with the executor, rather than relying on the executor alone.  Obtaining a grant also provides many other protections to the executor.

Robbins Watson regularly assist executors in estate administration and obtaining probate, and can happily assist in answering your questions and guiding you through the court process of applying for a grant of probate.

Should you wish to download a copy of this article click HERE

DISCLAIMER:
  1. The information on this blogpost is of a general nature, not intended to be specific professional advice.
  2. Please seek the opinion of a professional to advise you of your situation.
  3. The author’s opinions are his/her own and do not represent the views of any other person, firm or entity.
  4. The author is not responsible for the accuracy or appropriateness of third-party comments or articles, including those of guest authors and editorial contributions.
  5. Any comments, letters, and other submissions are moderated and may be edited or withheld at the sole discretion of the author.

Would you rather a bigger piece of the pie? – how you can reduce your legal costs

Would you rather a bigger piece of the pie? – how you can reduce your legal costs
October 25, 2018 /

One of the most common questions for a new executor is whether they will need a grant of probate – and for that matter, what is probate?

Put simply, a grant of probate is a court order made to an executor, naming the executor as the person to deal with on behalf of the deceased person’s estate.  For completeness, it also annexes a copy of the will admitted to probate so the last valid will of the deceased is readily apparent.

So why bother?  Under Queensland succession law, obtaining a grant of probate is not strictly required (in contrast to many of the other Australian States and Territories).  However, many banks and estate asset holders require the executor to obtain a grant – this way the asset holder can rely on a Supreme Court order (i.e. probate) to deal with the executor, rather than relying on the executor alone.  Obtaining a grant also provides many other protections to the executor.

Robbins Watson regularly assist executors in estate administration and obtaining probate, and can happily assist in answering your questions and guiding you through the court process of applying for a grant of probate.

Should you wish to download a copy of this article click HERE

DISCLAIMER:
  1. The information on this blogpost is of a general nature, not intended to be specific professional advice.
  2. Please seek the opinion of a professional to advise you of your situation.
  3. The author’s opinions are his/her own and do not represent the views of any other person, firm or entity.
  4. The author is not responsible for the accuracy or appropriateness of third-party comments or articles, including those of guest authors and editorial contributions.
  5. Any comments, letters, and other submissions are moderated and may be edited or withheld at the sole discretion of the author.

So, you're thinking of making a Will

So, you're thinking of making a Will
October 18, 2018 /

You’ve called your solicitor’s office, you’ve decided to enter their hallowed halls, you know the kind: darkened rooms with chesterfield couches, woodgrain finishes, oops! Sorry, this isn’t an episode of Bold and the Beautiful – but it can be just as dramatic.

Let us give you a few tips on what to bring, and what not to bring to your Will appointment:

  • The first is CAPACITY! This is an extremely important ingredient to your Will appointment, it’s simple: “No capacity, no Will!”
  • Proof of identity; something to prove who you are, such as current photographic identity confirming your particulars: your full name, date of birth and your place of residence (your driver licence is ideal; however, a passport or proof of age card will also be enough).
  • Asset List: These are important but aren’t necessarily essential; you could gift your pet goldfish if you so instructed.  Prior to your appointment, compile a list of assets (the ones you hold solely in your name) as well as a list of liabilities. REMEMBER: generally, you cannot gift what you do not own, so keep this in mind when compiling your list. If you’re unsure about whether you own something solely, jointly, or not at all, then don’t be afraid to seek clarification during your appointment.
  • An idea of who would be the best person to stand in your shoes after your death; figuratively that is (we don’t recommend gifting your shoes under your Will unless you are Imelda Marcos). This person is known as the Executor and will be responsible for dealing with your affairs following your death, finalising your Estate and attending to distributions to beneficiaries. Your Executor can be a family member, friend or a professional (e.g. solicitor).
  • An idea of who you want as your beneficiaries; these people can also be family members, friends or charities; make sure you provide the solicitor with your beneficiaries’ full legal names during your appointment.
  • Finally, do not bring to your appointment any undue influence, suspicious circumstances or breaches of confidentiality; this may mean that your chaperone(s) will be asked to sit in reception. Most law firms take the protection of your rights extremely seriously, and so they will request for your chaperone(s) to wait patiently in reception until your appointment comes to an end – don’t be alarmed by this, your chaperone(s) will be catered for through offerings of tea niceties from reception staff.

We are always happy to help, if you have any questions relating to preparing for your Will appointment please do not hesitate to contact us prior to your consultation on (07) 5576 9999.

DISCLAIMER:
  1. The information on this blogpost is of a general nature, not intended to be specific professional advice.
  2. Please seek the opinion of a professional to advise you of your situation.
  3. The author’s opinions are his/her own and do not represent the views of any other person, firm or entity.
  4. The author is not responsible for the accuracy or appropriateness of third-party comments or articles, including those of guest authors and editorial contributions.
  5. Any comments, letters, and other submissions are moderated and may be edited or withheld at the sole discretion of the author.

Invasion of the asset snatchers!

Invasion of the asset snatchers!
October 16, 2018 /

The passing of a loved one can leave a variety of personal goods and residential property which vest in the deceased’s estate. 

It can be troublesome when these goods are stored at a residential property occupied by a distraught relative or friend. 

It can be even more troublesome when that occupant doesn’t quite like the named executor.

Whether you are an executor collecting assets, or assisting on their behalf, it helps to remember a few simple tips:

1. Avoid the Tug of War;

In a setting where tensions run high, factors like uncertainty, ego or entitlement can cloud an otherwise simple process.

As an executor or aid, it’s best to: 

  • Maintain a steady objectivity;
  • Plan the visit well in advance;
  • Rely mutually on a listed inventory or the will itself for assets to be collected; and
  • Clearly communicate the purpose of collecting assets to the distraught occupant. 

2. Be kind;

Although the occupant may not be a friend, he or she doesn’t need to be an enemy either. The home was (and is probably still) a place of personality, privacy, comfort and well-met neighbours.

These elements are invaded and challenged when an executor collects the goods or the property itself. 

Although courtesy and consideration cannot justify an invasion, these behaviours can lessen distress and streamline the process. This can be especially helpful where a Tug of War was unsuccessfully avoided. 

3. Prepare for the worst;

Sometimes, objectivity and kindness just won’t do. If the occupant is a doomsday prepper, you may need to resort to tools of your own, including:

  • Additional security or staff support;
  • Recording devices (and backup batteries); 
  • Detailed File Notes of the proceedings.

Ultimately, if an occupant pushes, they shouldn’t be shoved back. Claims of improper distribution or Professional Misconduct can loom on the horizon. If many attempts cannot achieve the proper collection of estate assets, there are other support systems in place which should be utilised. 

DISCLAIMER:
  1. The information on this blogpost is of a general nature, not intended to be specific professional advice.
  2. Please seek the opinion of a professional to advise you of your situation.
  3. The author’s opinions are his/her own and do not represent the views of any other person, firm or entity.
  4. The author is not responsible for the accuracy or appropriateness of third-party comments or articles, including those of guest authors and editorial contributions.
  5. Any comments, letters, and other submissions are moderated and may be edited or withheld at the sole discretion of the author.

Further Provision Applications

Further Provision Applications
October 12, 2018 /

There are a number of circumstances in which a Will can be challenged – this includes Further Provision Claims.

What is a further provision application?

A further provision application involves a person, within a defined relationship to the deceased, who considers that they have not been adequately provided for under a will and they wish to apply to the court to seek a share or larger share of the estate.

The “defined relationship” varies in law from state to state and is often referred to a person’s “eligibility” to make a further provision claim to court.

Relevant law

In Queensland, the jurisdiction of the Queensland courts to determine further provision applications is found in section 41(1) Succession Act 1981 (Qld), which provides:

‘If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.’

Who is eligible to make a family provision application?

In Queensland, the following persons are eligible to make a further provision application:

  • a spouse,
  • a child, or
  • a dependent of a deceased person.

People outside of these categories are not eligible to make a family provision application in Queensland.

Spouses

The term “spouse” also includes defacto partners but a person’s defacto spouse status can be challenged during a further provision application.

The term ‘spouse’ is defined in section 5AA Succession Act 1981 (Qld) to mean:

  • the husband or wife of the deceased person;
  • a de facto partner as defined in the Acts Interpretation Act 1954, section 32DA, who lived together with the deceased person on a genuine domestic basis for a continuous period of at least two years ending on the deceased person’s death;
  • a civil partner; or
  • a former husband or wife, defacto or civil partner who was dependent on the deceased and was or entitled to receive maintenance from the deceased.

Children

The term ‘child’ means in relation to a deceased person:

  • a biological child;
  • a stepchild;
  • an adopted child.

For more information on the “adopted child” category, please see the following article about an adopted child  https://www.robbinswatson.com.au/adoption-when-law-transcends-biology/

Dependants

The term ‘dependant’ means a person who was being wholly or substantially maintained or supported by the deceased person (otherwise than for full and valuable consideration) at the date of the deceased person’s death being:

  • a parent of the deceased person;
  • a parent of a surviving child under the age of 18 years of the deceased person; or
  • a person under the age of 18 years.

When must a family provision application be commenced?

In Queensland:

  • A person must give notice of their intention to make a claim for further provision to the executor within six months after the death of the deceased person; and
  • the application must be filed within nine months after the death of the deceased person.

Factors the Court considers when deciding application

The Court must be satisfied that the provision that was made for the applicant (if any) was not adequate for that person’s proper maintenance and support.

The case law on factors that the court takes into consideration when determining an application, include:

  • the size and nature of the deceased person’s estate;
  • the applicant’s financial position, age, state of health and prospects for the future;
  • the totality of the relationships between the deceased person and others having a legitimate claim on the estate;
  • the financial position and circumstances of the beneficiaries named in the will.

If you want to know more, please contact me for a complimentary consultation on 07 5576 9999.

To download a copy of this article, please click here!

DISCLAIMER:
  1. The information on this blogpost is of a general nature, not intended to be specific professional advice.
  2. Please seek the opinion of a professional to advise you of your situation.
  3. The author’s opinions are his/her own and do not represent the views of any other person, firm or entity.
  4. The author is not responsible for the accuracy or appropriateness of third-party comments or articles, including those of guest authors and editorial contributions.
  5. Any comments, letters, and other submissions are moderated and may be edited or withheld at the sole discretion of the author.

HAPPY VALENTINE’S DAY! WHAT’S DATA GOT TO DO WITH IT?

HAPPY VALENTINE’S DAY! WHAT’S DATA GOT TO DO WITH IT?
February 13, 2018 /

Today is a significant day for lovers, but for businesses today is important because it leaves them one week to prepare for the start of the new Federal Data Breach security law enacted under the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth) (“the Act”).

Andrew Smyth Partner – Technology, Business, SMSF & Litigation, warns of the pitfalls with the new cybersecurity Laws. Failure to comply with the laws exposes businesses to crippling fines in the millions of dollars. From 22 February a significant number of businesses must comply with the Act.

Apart from its clunky name, the legislation is convoluted and not particularly well drafted. Accordingly, it can be difficult for businesses to identify if the legislation applies to them and how to comply with it. Andrew Smyth says, “for example, it applies to businesses with turnover of $3 million, but that is not just in the last financial year. It applies if the turnover exceeded $3 million in any of the last 17 years.”

You might think but my business is small it would never apply to me? Maybe, however if your business collects Tax File numbers it applies regardless of turnover.

You don’t collect Tax File numbers and your turnover is less than $3million, so you must be exempt? Maybe, but if your business deals with health services you will also be captured by the legislation.  There are actually quite a large number of exceptions to the ‘doesn’t apply to small business’ rule.

Of particular note it is important for businesses to understand the legislation is not simply an IT issue. It is a compliance issue. At a Federal Government level we have just seen how the seemingly innocuous act of offloading preloved office furniture has led to what some regard as the single biggest data debacle this country has ever seen. A process and procedure oversight saw an old government filing cabinet full of top secret documents sold as second hand furniture. While government might take a hit in the polls over this issue, if a business fails to comply with the Act then you are exposed to millions of dollars in fines. 

If you would like to know how to minimize your exposure please contact: Andrew Smyth (07) 5576 9999.