Daniel, Author at Complete Legal & Conveyancing

January 29, 2018 By Daniel

Road Rules You Might Not Know About

ROAD RULES YOU MIGHT NOT KNOW ABOUT

Most of us know our main stream road rules back to front. There are some other road rules in New South Wales that you might not be aware of however, and they can be a little quirky. Here are some examples:

Did you know that you can’t use a mobile phone at all, even via Bluetooth, if you are a P-plater? Since December 2016, a P-plater cannot use a mobile phone in any capacity in a car.
You can also be charged with a mobile phone related offence if your phone is sitting on your lap, even if you are not using it while you are on the car, or if you are flicking through emails or sending a quick text while in a fast food drive through.

The best way to protect yourself from this type of offence is to adopt a “hands off” policy if the vehicle is on and keep your hands off your phone.
It is an offence to have part of your body outside of your window. This means that if you are one of those people that stick your arm out of your window while you are driving, or farewell friends and family with a wave from your car window, you could be guilty of an offence. It is also an offence to toot your horn in farewell, as this is considered an inappropriate use of your car’s warning device.
Keeping left – irrespective of how many cars are on the road, you must keep left unless overtaking. FYI – you can also however be charged with driving dangerously slow, so remember even if you are in the left lane, it is best to stick to or close to the speed limit.
Roundabouts – remember you must indicate left whenever leaving a roundabout. If you do not, you are guilty of an offence and may receive a fine.
Make sure you always lock your car and remove the keys from the ignition. It is an offence to be standing more than three metres from your car without removing the ignition key and locking the doors and windows.
When it comes to passengers, make sure they remember that their conduct could lead to the driver getting a fine as well. For example, somebody reclining in the front passenger seat can be deemed to be a seatbelt offence and attract a fine for the driver.

There are a range of other quirky little road rules that might find you in a bit of strife if you come across an overzealous police officer, but these are a good, practical start.

Take care on the roads.

January 23, 2018 By Daniel

Making A Valid Will

Now and then we like to get back to basics with these columns and revisit topics we have explored in the past.

This week’s column explores the requirements of a valid Will.

A lot of people die without a Will, which means that the division of their assets after they die is determined by legislation set out in the Succession Act.

The best way to make sure your assets go to the person or people you want them to is to write a valid Will.

Do-it-yourself Will kits can be dangerous because if they are not completed correctly, it can result in a distribution of assets which was never intended by the Will maker.

We have a Will in our office right now whereby the Will maker completely skipped over his wife in distributing his assets and accidentally left everything to his children because he believed that everything would go to his wife anyway, and that his Will was designed only to indicate what he wanted to happen to his assets if his wife died before him.

Thankfully, we have been able to navigate through his do-your-own Will debacle to ensure that the deceased’s person’s wife is adequately provided for. However, all of this could have been avoided by having an appropriately qualified solicitor prepare his Will for him.

Generally, the requirements of making a valid Will are:

That it is in writing;
That it is signed by the Will maker or by another person on behalf of the Will maker at the Will maker’s direction;
That it is witnessed by at least two witnesses who have signed the document in the presence of the Will maker;
That the Will maker signs the document with the intention of executing a Will.

While a Will may not necessarily be deemed completely invalid if it lacks one of the above requirements, it will mean that the process of executing the terms of the Will will likely be much more expensive as an application to the Supreme Court of New South Wales may need to be made to dispense of the formal requirement of the Will or alter or evoke the Will depending on the circumstances.

To make a Will, a person needs to have capacity to do so. This means they have to understand the nature and effect of what they are signing, they must have a general understanding of their assets, they must understand who can challenge their Will and they must not be under any duress or delusion that is influencing the Will making process.

The best way to avoid these types of complications is to have an appropriate qualified solicitor prepare your Will for you, however simple your circumstances might be.

January 16, 2018 By Daniel

Happy New Year – Law Changes Set to Take Effect in 2018

Happy New Year from the team at Complete Legal & Conveyancing.
To kick off our series of columns this year, read below to find out a few legal and policy changes that will take place that may affect your day to day life:

Increases for a range of social security payments are set to take effect this year. For example, Youth Allowance recipients will receive an additional $4.60 per fortnight, students receiving a Social Security allowance will receive an additional $8.30 per fortnight and there are also some changes to Aged Care Pension eligibility due to take place mid‑year, such as a minimum requirement of 10 years residence in Australia (five of which included gainful employment) to qualify.
The Australian Tax Office last year announced that it will shift its focus from big corporate tax dodgers to individuals, particularly those who overstate work related tax deductions. The basis for this is that the Australian Tax Office believes there is more revenue to be recovered from individuals than businesses.
In the health sector, you will now require a prescription to obtain pain killers containing codeine, such as Panadeine, Nurofen Plus, Mersyndol and Codral. Pharmacists will be able to provide some of these medications without a prescription in limited circumstances.
Mid‑2018 is also expected to see some significant reforms to the real estate sector. This includes reducing the six real estate licence types to three, being “Real Estate”, “Strata” and “Stock and Station”. There will also be some changes to competency requirements for issue of these licenses with applicants being required to complete additional competency units before their licenses are approved.
There is also a push to reform current trust accounting regulations so that only a licensee in charge can authorise transactions for trust accounts, potentially a response to the number of trust account breaches that occur in the industry. Real estate agents’ failure to account for money held in trust is currently considered a major risk area for the industry by New South Wales Fair Trading, with nearly half a million dollars paid out by the Property & Services Compensation Fund in the 2016/2017 financial year as a result of consumer claims.

Every year thousands of new laws are made across the country on a State and Federal level. The above is a bit of a snapshot of some of the changes that might affect you. We will keep you updated throughout the year as other topical legal issues come to light.

December 12, 2017 By Daniel

Happy Holidays, Don’t Forget Double Demerits

We are just over a week away from most of the country shutting down for the Christmas/New Year break.

The silly season always sees a spike in certain offences, the most common being traffic related.

In New South Wales, the main double demerit period will run from 22 December 2017 until 1 January 2018. This is the longest double demerit period on the calendar each year and it is designed to limit motor accidents on hectic New South Wales roads as people head up and down the coast for holidays.

New South Wales Police’s “Think Twice” campaign will focus on speeding, illegal use of mobile phones, seatbelt laws and riding a motorcycle without a helmet. An additional double demerit period will run from 25 January 2018 – 28 January 2018 for Australia Day celebrations.

To put this in perspective, during a double demerits campaign, a speeding offence at the lower end of the scale, say up to but not over 10km/h over the legal limit, will attract 6 demerit points as opposed to 3.

A person holding a New South Wales unrestricted driver’s licence can accrue 13 demerit points before losing their licence for a demerit point suspension.

Suspensions typically work as follows:

13 to 15 points – 3 month suspension
16 to 19 points – 4 month suspension
20 or more points – 5 month suspension

Greater suspensions and penalties apply for learner and P plate drivers.

The other common traffic offence that occurs at this time of year is drink driving.

Remember, the legal limits for driving with alcohol in your blood are as follows:

Learner, P1 or P2 – ZERO
Drivers of vehicles of “gross vehicle mass” greater than 13.9 tonnes, drivers of vehicles carrying dangerous goods and drivers of public vehicles such as taxi or bus drivers – 0.02
All other drivers – 0.05
Drink driving offences attract significant fines and loss of license and stay on your record forever.

From the team at Complete Legal and Conveyancing, have a fantastic holiday season and remember, if you require any legal services, do not hesitate to get in touch.

December 5, 2017 By Daniel

Double Jeopardy

A hearing is underway this week in the Criminal Court of Appeal in Sydney as to whether or not a man should be re-tried for murdering three people in the New South Wales suburb of Bowraville in the early 1990s.
The man in question has been the number one suspect in relation to the murders of Evelyn Greenup (4), Clinton Speedy-Duroux (16) and Colleen Walker (16) which occurred between 1990 and 1991. He was acquitted of the murder of Speedy-Duroux in 1994 and later acquitted of the murder of Greenup in 2006. He has never been tried for the murder of Colleen Walker.
The case is an important legal precedent as it puts New South Wales double jeopardy laws to the test.
Generally, double jeopardy laws prevent someone from being tried for the same crime twice.
Double jeopardy laws in New South Wales changed in 2006 allowing a suspect to be re-tried for a crime if “fresh and compelling” evidence was discovered. In other words, solid evidence that did not form part of the original trial.
Since these changes the Bowraville murders have been the symbolic centrepiece surrounding how these laws should apply in New South Wales. In 2007, following the law reforms, the then Director of the DPP, Nicholas Chowdhury rejected calls for the suspect to be re-tried on the basis that the DPP did not have enough evidence to support a retrial.
Similar setbacks occurred in 2010 and 2013 when the then Attorney-General rejected applications for the suspect to be re-tried for the murders of Speedy-Duroux and Greenup.
In May last year however, Attorney General Gabriel Upton referred Bowraville murders to the Court of Criminal Appeal to determine whether or not the matter should be re-tried.
In February this year the suspect in question was once again charged with the murders of Greenup and Speedy-Duroux in the Newcastle Local Court.
It has been reported that should the Court find that a re-trial is appropriate that the suspect will then be formally charged with the murder of Colleen Walker and that the matters will be heard together.
Some of the evidence being relied upon by the solicitors and barristers arguing in favour of a re-trial are accusations that the suspect tried to pressure Colleen Walker into having sex with him shortly before her disappearance. The argument is also being presented that all three alleged murders should be heard together and in conjunction with each other as they are intrinsically linked, as opposed to being heard as separate matters that do not take into account the pattern of these murders which all occurred in the same location, in a very short period of time.
The Court of Criminal Appeal is yet to determine whether or not a re-trial will go ahead however, the result of this case will be a landmark legal decision in the State of New South Wales.

November 27, 2017 By Daniel

What Is Sexual Assault?

Hollywood has been rocked in recent months by allegations against a string of A Listers of sexual misconduct.

The frenzy has reached Australian shores with allegations surfacing this week my multiple women against Australian TV icon Don Burke for similar behaviour.

What do the many different terms used in the media to describe sexual misconduct actually mean?

Typically, “sexual assault” is used in two fashions. The first is an umbrella term used to describe all offences of a sexual nature ranging from sexual intercourse without consent through to unwanted touching and groping or unwanted sexual advances.

Sexual assault is also used to describe actual rape, which refers to forced penetration of any part of the body of another person without consent.

“Indecent Assault” typically refers to touching without penetration, for example, kissing, touching, groping or fondling usually of another person’s genitals.

An “Act of Indecency” typically refers to a person performing an act of a sexual nature with or towards another person or making them engage in such contact against their will, for example masturbating in front of another person.

“Sexual Harassment” refers to things like unwanted sexual advances, unwanted sexual comments or other sexual misconduct that typically does not involve any touching or physical attributes.

“Child Sexual Abuse” describes a range of sexual misconduct in relation to children or young people under the age of 16. This ranges from actual physical sexual conduct through to things like forcing a child or young person to view pornographic material.

There are dozens of different offences designed to punish different levels of unwanted sexual behaviour.

Many of these offences are treated as the most serious in our legal system so far as punishment is concerned, the worst of which attract similar penalties to offences of serious violence like manslaughter and murder.

That these offences have been so prevalent in the media over so long a period time exemplifies the notion that so many of these offences go unreported due to the embarrassment and trauma experienced by victims.

October 15, 2017 By Daniel

Government Majority at Risk

Prime Minister Barnaby Joyce may be a dual citizen.

Whilst the majority of regular Australians probably don’t care about such an innocuous detail, this fact shapes as an enormous issue for the Government as it may disqualify Joyce from being a member of the House of Representatives. If this were to occur, the Government would lose its one-seat majority and effectively its ability to govern the country.

Section 44 of the Australian Constitution sets out that any person who is a dual citizen “shall be incapable of being chosen…as a member of the House of Representatives”.

The intention of this provision is clear; people whose allegiances may be with another nation should not be allowed to serve as a member of parliament and have control over of Australian laws and policy. However, the Constitution was drafted at a time when globalisation and multiculturalism were essentially unheard of, and nations were still vigorously fighting for territory and sovereignty the world across.

Since that time, our concept of what it is to be “Australian” has changed significantly, as is evidenced by the number of people who currently sit in parliament from a range of different ethnic and religious backgrounds.

The situation with Joyce should serve as an opportunity to identify a shortcoming within our Constitution that fails to consider the ever-changing context of Australian society.

Whether you love him or hate him, Joyce was born in Tamworth, raised in his seat of New England, and has never in any way, shape or form acknowledged any potential citizenship of New Zealand. If he is a Kiwi, it is by default and has had zero practical implications on his life or his political career.

This should also be considered in the context of a range of international laws and treaties that, to some degree, see Australia and New Zealand as an extension of each other in terms of the bilateral freedoms our nation grants to each other’s citizens given our proximity to each other.

The matter has been referred to the High Court for determination, however if Joyce is expelled from the parliament, this should not be lauded as a victory for those who oppose the current Government. If the Government were to lose its majority, it would come on the back of Gillard knifing Rudd, Rudd knifing Gillard and Turnbull knifing Abbott serving only to add fuel to the fire that is arguably the most tumultuous and ineffective decade in Australian political history.

However juicy the headline, this can’t be good for the country, no matter your political persuasion.

October 13, 2017 By Daniel

Capacity to Make a Will and Other Documents

In our practice we do a lot of work around estate planning. Estate planning includes the drafting of a Will or Testamentary Trust, and also encompasses the appointment of a Power of Attorney and Enduring Guardian.

As such, a lot of our clients are elderly or suffering from medical conditions that may affect their ability to understand legal documents, and accordingly make decisions about estate planning.

In relation to wills, lawyers have to make an assessment as to whether or not a person has “testamentary” capacity, that is the mental capacity to understand the nature and effect of a Will and to instruct us to prepare one for them, before the document can be prepared and executed.

The lawyer will need to assess whether:

The person understands the nature and effect of the document;
The person has a general understanding of what assets they have;
The person understands who has a claim on their Estate;
The person is under any delusion, duress or other influence in making decisions about the estate planning.

A lawyer might also test the person’s memory by asking questions about the person’s life and about current affairs. The purpose of this is to make sure that someone who might be suffering some incapacity as a result of something like dementia, Alzheimer’s, or some other medical condition is not taken advantage of, and to ensure that they are in their right mind when determining who their assets are to pass to after their death.

In circumstances where there may be some question about a person’s capacity, it is helpful for a lawyer to have a letter from the person’s treating doctor or geriatrician confirming that, from a medical perspective, their doctor believes that they have the capacity to understand the nature and effect of their estate planning documents.

If a lawyer determines that the person does not have capacity, then they cannot prepare estate planning documents for that person.

In circumstances where a person has lost capacity, there is no way a Will can be drafted for them. Unless they regain their capacity, any Will they wrote previous to losing their capacity will still be valid, or in the circumstances where they do not have a Will, they will die intestate.

There is however a mechanism to put in place a quasi Power of Attorney or quasi Enduring Guardianship after a person has lost their capacity. This involves making an application to the Guardianship Tribunal to have a financial manager or guardian appointed.

The person making the application will need to provide evidence to the Guardianship Tribunal that the person has lost their capacity to manage their affairs, and that the applicant is an appropriate person who will act in the best interests of the person concerned.

October 9, 2017 By Daniel

Writing A Will With A Mixed Family

Every day we are fielding enquiries from people who wish to write Wills who have adult children and have entered into their second marriage.

Typically this creates somewhat of a moral dilemma for people because they want to provide for their children of their first marriage, but also make sure that their new husband or wife are properly looked after following their death.

One of the most common questions we get asked is ‘can I leave my house for my husband or wife to live in, and then pass it on to my children when he or she dies?’

The simple answer is yes.

There are a number of ways that you can dispose of your estate to make sure that your spouse has somewhere to live but your children are looked after as well.

1. Absolute Gift of Property and Residue Gift to Children

You can gift your property to your spouse absolutely, meaning it will become theirs and will never pass to your children. If you have cash and/or superannuation you could potentially direct this money to your children to ensure that all parties are taken care of.

2. Life Estate

A Life Estate gives a person a proprietary right in a property. Typically this means that a beneficiary will go on title on a property for the period of their life meaning that are entitled to occupy and use the property for as long as they wish. You can stipulate in your will that the property is to pass to your children on the death of the spouse. A life estate can be “portable”, meaning in can transfer from one property to another (for example if the beneficiary wanted to downsize from a house to a unit).

3. Right of Residence

A Right of Residence is a lesser right than a Life Estate. Essentially a Right of Residence constitutes a licence to use a property. A right of residence is usually for a specific period of time as opposed to existing for the life of the beneficiary.

You can also attach conditions to the above arrangements, for example that a right of residence is conditional upon the beneficiary keeping the property in good repair and paying for insurance, council and water rates.

If you find yourself in a situation where you want to take care of your defacto or spouse after your death but want to make sure that your children are the ultimate beneficiaries of your Estate, contact us to discuss how you can draft a Will incorporating one of the above strategies.

October 7, 2017 By Daniel

New Year, New You

The end of the financial year or “tax time” is the perfect opportunity for you to have a mid-year reset and get your affairs in order.

If you own a business you are busy compiling all of your income information so that your accountant can prepare your tax returns. If you don’t own a business the same is true for you, digging through your box of receipts to make sure that you can maximise your deductions.

So, while you are in the mood to meet with your accountant to finalise your tax for the last financial year, why not organise some other aspects of your life as well – who knows, some of them might be tax deductible!

Until the end of July we are offering a huge discount exclusively to Western Weekender readers on estate planning and conveyancing.

Estate planning includes:

The preparation of a Will: A document that indicates how you want your assets to be distributed after you die;
Power of Attorney: A document that allows you to appoint a person or people to manage your financial affairs for you, even if you lack the capacity to do so yourself;
Enduring Guardianship: A document that allows you to appoint a person or people to manage your health and lifestyle for you if you can’t do this yourself through incapacity such as illness.

We are offering 50% off all estate planning documents (excluding Testamentary Trusts) if you contact us before 31 July 2017.

If you are thinking about buying an investment property, your first home or you are selling to upgrade to a new property, we are offering a 30% discount on your legal fees for conveyancing if you contact us before 31 July 2017.

Remember, make sure you talk to your accountant about how the costs of getting your legal matters in order might be tax deductible.

For example, if you have bought or are buying an investment property, there are significant tax deductions available to you. If you own a business, you may be entitled to a tax deduction for your succession planning (for example a buy/sell or Shareholder Agreement).

The best thing about the above offer is we will sit down with you and discuss your needs obligation free. This means that on top of these significant discounts, if after talking with us you decide you are not quite ready to pull the trigger on your particular matter, we won’t charge you.

Happy New Financial Year!

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