obiter | ByLawyers News and Updates

Wills guide reviewed – NSW

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The continuing commitment of By Lawyers to updating and enhancing our publications has seen the Wills (NSW) guide reviewed.

Subscribers using this popular publication will find a re-ordered and extended matter plan, revised and updated commentary and a number of new precedents. Execution is now a top-level heading on the matter plan, with dedicated commentary on issues such as blind witnesses, gifts to witnesses and solicitors as witnesses. The revisions also include:

New and amended commentary

  • First steps and taking instructions for wills
  • Testamentary capacity and the test in Banks v Goodfellow
  • The formal requirements for a valid will
  • Informal wills
  • Intestacy
  • Executors
  • Execution
  • Challenges to the validity of a will

New and amended precedents

  • Initial letter to client enclosing costs agreement
  • Letter to client to confirm instruction, advice and arrangements
  • To do list
  • Instructions for signing
  • Letter reminding client that will is ready for signing

Other resources in the Wills guide reviewed

A number of links have been added to the Other trusted and useful resources and a number of new cases have been included in 101 Succession Answers (NSW). Both of these can be found in the Reference materials folder on the matter plan.

Workers’ compensation – QLD

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Recent amendments to workers’ compensation legislation have commenced in Queensland.

All workers’ compensation provisions of the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2019 have commenced as of 1 July 2020. They mostly apply only in relation to new claims.

The amendments include:

  • extending workers’ compensation coverage to unpaid interns;
  • requiring employers and insurers to provide ongoing rehabilitation and return to work services if the injured worker has been unable to return to work after their entitlement to weekly benefits and medical expenses ceases;
  • requiring employers and insurers to take reasonable steps to provide support services for workers with psychiatric and psychological injuries on a without prejudice basis while their claims are being assessed;
  • removing the requirement for the worker’s employment to have been the major significant contributor to a worker’s psychiatric or psychological injury;
  • making the decision of an insurer not to provide support services to workers with psychiatric and psychological injuries reviewable;
  • extending circumstances in which insurers have discretion to waive time requirements for lodging an application;
  • replacement of dollar amounts of compensation with reference to QOTE, being the seasonally adjusted amount of Queensland full-time adult ordinary time earnings, as declared by the Australian Statistician;
  • requiring self-insured employers to report injuries and payments to WorkCover;
  • making provision for qualification, via accredited training, of the rehabilitation and return to work coordinators that employers must appoint under the Act;
  • providing that apologies or expressions of regret by employers regarding workplace injuries are not admissible or able to be considered on the question of liability in an action for common law damages – this applies retrospectively to apologies or expressions of regret made before the commencement of these amendments.

The By Lawyers Queensland Workers’ Compensation publication has been updated accordingly.

Staff handbook – All states

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The By Lawyers 101 Policies & Procedures guide has been re-named 101 Staff Handbook.

101 Staff Handbook is part of the By Lawyers Practice Management publication.

The handbook provides numerous policies and procedures to assist with management of a legal practice. These can be adopted or adapted by the firm as required.

Practitioners can also use this resource to assist their commercial clients with implementing appropriate policies and procedures in their businesses.

The extensive, practical content in the handbook covers all areas of legal practice. It includes the following most recent additions:

  • Managing client communications – Policies and procedures covering all aspects of firm communications including phone, email and written correspondence, plus a comprehensive complaint handling procedure.
  • Confidential information – A policy on protection of confidential information, which includes breaches.
  • Intellectual property – A simple policy for protecting the firm’s existing IP and dealing with any new IP created by team members in the course of their employment.
  • Working from home – A policy which clarifies the rights and obligations of team members and the firm in relation to working from home arrangements.

 

Land tax changes – SA

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Land tax changes – threshold

Land tax changes apply from midnight 30 June 2020. There will be an increase in the general land tax threshold to $450,000 and a threshold of $25,000 will be introduced for trust ownership.

Current land tax rates and thresholds are available on the RevenueSA Rates and Thresholds page.

Land tax changes – joint owners

From the 2020-21 financial year, changes apply to how land tax is assessed for owners who own land in multiple ownership.

Pursuant to s 9(4) of the Land Tax Act 1936, joint owners of land will receive a land tax assessment for the jointly owned land where the value of that land is above the taxable threshold.

Pursuant to s 9(6), if an owner of jointly owned land also owns, or is deemed to own, other parcels of land in their own right, they may receive a separate assessment for their total landholdings which will include their share of the jointly owned land. The share of jointly owned land will also be combined with the site values of any land owned as an individual to calculate land tax payable.

A deduction will be applied to the individual assessment, which relates to the proportion of land tax assessed for the share in the joint ownership.

For further information, see the RevenueSA Owning land in multiple ownerships page.

The By Lawyers Conveyancing (SA) Publication has been updated accordingly.

1 July updates – All states

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1 July updates are a big focus for By Lawyers. This is because many Commonwealth and state legislative instruments provide for scheduled indexing of relevant monetary amounts and increases in government fees and charges.

These updates can include court filing fees, lodgement fees for property dealings, minimum weekly compensation amounts for Workers Compensation and various fines.

By Lawyers always monitor these changes for our subscribers. Each year we ensure that our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for legislative indexing and increases which occur regularly at other times. These include 1 January changes and also other specific dates prescribed by some statutes.

The 1 July updates have been applied, or are in the process of being applied as they get released, to the following By Lawyers publications:

  • Conveyancing and Property;
  • Criminal;
  • Litigation;
  • Family;
  • Estates;
  • Injuries; and
  • Employment.

Stay updated with By Lawyers guides and precedents. Happy new financial year!

RedCrest-Probate – VIC

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From 1 July 2020 all applications for grants of probate and letters of administration must be filed in RedCrest-Probate, which is the Supreme Court’s online filing system.

The documents required for a grant can be completed and uploaded as PDFs into RedCrest-Probate. Alternately they can be completed using the guided questions in the system.

The original will, or any other document upon which the application for a grant is based, must still be physically filed, or posted to the Court.

In a move to make the new process as electronic as possible, the original grant is the electronic copy issued by the court. Asset holders can view the original grant through RedCrest-Probate using a unique identifier and the application number appearing on the grant.

The By Lawyers Probate and Letters of Administration guides have been updated accordingly.

Retail and commercial leases – SA

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Important changes to the Retail and Commercial Leases Act 1995 and accompanying Regulations came into effect on 1 July 2020.

The By Lawyers Leases (SA) Publication – including the commentary and relevant precedents – has been updated accordingly.

The changes include:

  • A copy of the proposed retail shop lease is to be provided by a lessor to the prospective lessee as soon as negotiations are entered into. The particulars of the lessee, the rent and the term of lease are not required to be completed at this time. Failure to comply may result in a penalty of up to $8,000. The landlord or person acting on behalf of the landlord must also provide the prospective lessee with a copy of the Small Business Commissioner’s information brochure ‘Retail & Commercial Leasing Guide’. Failure to comply may result in a penalty of up to $800.
  • Before a retail shop lease is entered into, the lessor must give the lessee a signed disclosure statement. Failure to comply may result in a penalty of up to $8,000.
  • A lessee must, within 14 days of being served with the disclosure statement, return a signed acknowledgement of the disclosure statement to the lessor.
  • It is possible for a retail shop lease to move in and out of the scope of the Retail and Commercial Leases Act 1995. The Act does not apply to leases where the annual rent exceeds the threshold prescribed by the Act, currently $400,000 exclusive of GST. This applies irrespective of whether the Act applied to the lease at the time it was entered into or renewed.

These provisions are not applicable to retail and commercial leases that were entered into before the commencement of the Retail and Commercial Leases (Miscellaneous) Amendment Act 2019, being 1 July 2020, or in the exercise of any right or option conferred by a lease that was entered into before this date.

See the Leases (SA) Publication for further information.

101 Family Law Answers – FED

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The By Lawyers reference manual 101 Family Law Answers has been updated with recent cases in the following sections:

Arbitration in family law

See Palgrove & Palgrove [2020] FCCA 846 at [12]-[29] for a discussion of arbitrability and the court’s jurisdiction to facilitate arbitration.

Injunctions

Dunworth & Falletti [2020] FamCA 178 where the balance of convenience favoured the grant of restraint.

Rahman & Rahman [2020] FamCA 156 where the husband’s appeal failed against an injunction that restrained him from leaving Australia until a lump sum payment was made.

Orders – Variation and the rule in Rice & Asplund

See Findlay & Reis [2020] FCCA 425 for an application to vary a parenting order, which was dismissed in accordance with the principles in Rice & Asplund.

Relocation

Franklyn & Franklyn [2019] FamCAFC 256 where a mother’s unilateral relocation was allowed on appeal, as she was still able to adhere to interim consent orders for the father’s fortnightly contact.

Soulos & Sorbo [2019] FamCAFC 231 where the father’s appeal was allowed to set aside the parenting orders permitting the mother and child to relocate overseas.

Section 75(2) factors – Disparity in financial positions

In Metzer & Metzer [2020] FCCA 119 the wife was unable to establish a 10% likely loss of earnings on the evidence presented. An adjustment of 2% only was made in favour of the wife.

Five factors were listed at [182] that are usually considered when determining residual earning capacity:

  1. physical capacity, including the reasonable restrictions required by reason of injuries;
  2. psychological capacity, taking into account any necessary restrictions, of which there was no evidence in this case;
  3. vocational capacity, for suitable jobs within suitable occupations, including all of her education, training and experience and transferable skills;
  4. labour market, including factors such as the existence of such jobs in the real world labour market which is to be considered, including any barriers to entry and competitiveness including by reason of work history and age; and
  5. earnings, including the likely range of earnings for such available jobs by reference to reliable published labour market statistics or current labour market research information.

 

101 Family Law Answers is a valuable resource for practitioners. It is available as a related guide and in the reference materials folder in all By Lawyers Family Law publications. It provides more detailed information and relevant cases on the various Family Law matter types – Property Settlement, Children, Financial Agreements and Divorce. It also covers some general procedural issues and the enforcement of orders.

101 Succession Answers – Vic

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By Lawyers is delighted to release the latest in our 101 Reference Series – the comprehensive reference guide 101 Succession Answers – VIC. This useful resource provides more detailed information than the By Lawyers commentaries on the various areas and issues in succession law. It includes discussion, with links to legislation and cases, on:

  • powers of attorney and supportive attorney appointment;
  • medical treatment decision-making;
  • wills;
  • appointments of guardianship and administration;
  • estates – probate and administration; and
  • family provision.

101 Succession Answers VIC is now a related guide in LEAP – and included for new and existing website subscribers – to these Victorian By Lawyers publications:

  • Wills, Powers of Attorney and Advance Health Directives;
  • Estates; and
  • Family Provision Claims.

This is a must-have, easy-reference, resource providing detailed information in a quickly accessible and searchable format. Tricky questions can be answered quickly using the guide’s alphabetical headings, ‘Ctrl+F’ searchability and plain English format. Practitioners can quickly address specific technical issues as they arise in a matter.

The By Lawyers team will be keeping 101 Succession Answers VIC updated with all relevant new cases and legislation as developments in these areas of law occur.

Electronic conveyancing – ACT

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Electronic conveyancing commenced in the ACT on 1 June 2020.

Legislation

The Land Titles (Electronic Conveyancing) Legislation Amendment Act 2020 and the Electronic Conveyancing National Law (ACT) Act 2020 came into effect on 1 June 2020. Together they introduced electronic conveyancing to the ACT.

Electronic conveyancing

The legislation does not mandate the use of electronic conveyancing. It remains a matter of choice for the parties to the transaction.

Electronic Conveyancing allows practitioners and financial institutions to interact and transact together online. Documents are created, signed and lodged within the online environment. All necessary steps to settle the transaction are completed within that online environment.

For assistance see the dedicated commentary ‘A brief explanation of the transition to E-conveyancing‘ which can be found in the Reference materials folder on the By Lawyers Conveyancing matter plans. This helpful resource contains information on how to get connected with PEXA or Sympli and covers verification of identity, client authorisation and certification and record keeping.

Verification of identity and client authorisation

Before entering into a transaction and executing a form to be lodged at the Land Titles Office – either electronically or in person – practitioners must be authorised by their client. This occurs by the client executing the Client Authorisation Form prior to completion.

Practitioners must take reasonable steps to verify that the client is a legal person and has the right to enter into the transaction. Documents used to verify a person’s identity must be retained for at least seven years from the date the Instrument is lodged with the Land Titles Office. Land Titles Office documents are being updated to include the new certification requirements.

The Land Titles Office will accept the existing forms lodged by legal practitioners and mortgagees up to 1 September 2020. If lodging dealings on a form without the certification requirements, practitioners must meet all the requirements of that form, including all signatures, witnessing requirements and producing the paper certificate of title, if required, as evidence of the right-to-deal.

By Lawyers updates

The By Lawyers Conveyancing (ACT) publication has been updated to include all necessary verification of identity and client authorisation forms. The relevant precedents have been updated to include electronic conveyancing options.

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