ByLawyers News and Updates

Testamentary capacity checklist

by

A testamentary capacity checklist has been added to the matter plans in all By Lawyers will guides. This helpful precedent distills the critical information that practitioners must elicit to properly assess capacity. It is designed to assist lawyers both when taking instructions and when the will is being executed, whether in the office or at the client’s bedside.

Whether or not a client has testamentary capacity is not calculated via a legislated formula but derived from case law. It has been described as requiring time, situation, person, and task specific focus on a testator’s ability to remember, reflect, and reason.

The cases, starting from Banks v Goodfellow (1870) LR 5 QB 549 require a testator to understand:

  • what it means to be making a will;
  • the assets they have and are leaving to others;
  • the obligation owed to those who could make a claim on the estate; and
  • whether or not they are affected by a delusion that influences the disposal of their assets.

The Court determines testamentary capacity on the facts and circumstances of each case.

In Star v Miller [2021] NSWSC 426, the court said that, when taking instructions, it is prudent for lawyers to ascertain the client’s capacity and the possibility of undue influence by asking non-leading questions to determine the facts and circumstances of each case. The By Lawyers testamentary capacity checklist includes such questions.

In Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 at 107, the court suggests that where an elderly client is being cared for by someone or is residing in an aged care facility, it is prudent to ask both clients and their carers whether there is any reason to be concerned about capacity. The By Lawyers testamentary capacity checklist prompts for these inquiries to be made.

The checklist was suggested by one of our subscribers. We worked with our authors to draft a document that is as short and simple as possible but protects practitioners by covering all necessary considerations. The checklist should be used in conjunction with the By Lawyers Wills retainer instructions.

Criminal procedure – VIC

by

Criminal procedure amendments enacted by the Justice Legislation Amendment (Criminal Procedure and Other Matters) Act 2022 have commenced. Further amendments are pending.

Amendments include:

Prosecution disclosure obligations

Section 41 Criminal Procedure Act 2009 sets out what must be provided in a full brief.  This includes any information, document, or thing on which the prosecution intends to rely at the hearing. The section has been amended to require the prosecution to now include in the brief any information relevant to the credibility of a prosecution witness, including their criminal record if any.

The informant, usually a police officer, also has an ongoing duty of disclosure to the Director of Public Prosecutions where that office is conducting the prosecution. The informant must provide to the DPP any information, document, or thing that is in the possession of, or known by, the informant that is relevant to the alleged offence, subject to any claims for statutory privilege or public interest immunity.

An amendment yet to commence requires detailed disclosure certificates to be prepared by the prosecution to ensure compliance with these disclosure requirements. There are associated tweaks to the pre-trial procedure to accommodate them. These amendments are awaiting proclamation, but have a default commencement date of 1 October 2022.

Remote evidence

The criminal procedure amendments introduce an obligation on the court to direct that the evidence of a witness be given remotely if the witness is a complainant in a proceeding that relates to an offence that constitutes family violence within the meaning of the Family Violence Protection Act 2008. This applies if closed-circuit television or other facilities that enable communication between the courtroom and another place are available and it is practicable to do so.

Appeals

Where the Magistrates’ Court in any given matter is constituted by the Chief Magistrate who is a dual commission holder, meaning also a Supreme Court judge, appeals are now to the Court of Appeal.

Intervention Orders

Declarations of truth are now available for applicants commencing applications for personal safety intervention orders. This is in addition to oaths, affirmations, and affidavits. Declarations of truth were already available for family violence applications.

Under both Acts, special rules apply for the cross-examination of affected family members and children. The amendments have effectively made remote evidence the default position for protected witnesses, which includes children and close family members of the accused. See s 69 (1A) of the Family Violence Protection Act 2008 and ss 49 and 52 of the Personal Safety Intervention Orders Act 2010.

Publication updates

These changes have been reflected as required in the By Lawyers Magistrates’ Court – Criminal publication. When the additional amendments commence our publications will be further updated.

Pre-action procedures – SA

by

New precedents have been added to the Magistrates Court guides to assist practitioners to comply with the requirements for pre-action procedures in civil claims.

The options and requirements for pre-action procedures are set out clearly in Division 3 of Chapter 7 of the Uniform Civil Rules 2020.

The commentary in the By Lawyers SA Magistrates Court publications sets out these requirements and also deals with:

  • Alternatives to pre-action steps, involving the optional use of a Form P1 Final Notice, and Form P2 Enforceable Payment Agreement which sets
    out the money that the debtor owes and an agreed payment plan. These forms are available on the matter plans;
  • Pre-action steps for originating applications, including letters of demand and costs considerations;
  • Pre-action steps for minor civil claims, for which there is a simplified process.

The commentary also provides practical tips on taking instructions and giving advice about pre-action steps and letters of demand. This focuses on the overarching obligations that apply in all proceedings to parties and their representatives as set out in the rules. These are particularly pertinent to drafting letters of demand or pre-action claims.

New precedents

Two new precedents have been added to the Magistrates Court (SA) – Acting for the applicant matter plan:

  • Pre-action claim letter to respondent’s solicitor
  • Pre-action claim letter to respondent

Four new precedents have been added to the Magistrates Court (SA) – Acting for the respondent matter plan:

  • Pre-action response accepting offer
  • Pre-action third party notice
  • Letter serving pre-action response on other proposed respondents
  • Letter serving pre-action third party notice on applicant

These new precedents were prepared by our South Australian litigation author following a request from a subscriber. By Lawyers love to receive feedback from our users and often enhance our publications as a result. It is one of the ways we help lawyers enjoy practice more!

County Court rules – VIC

by

A second tranche of amendments to the County Court rules commence on 31 January 2022. These relate to mediation.

A new rule 50.07.2 provides for the court to order that matters be referred to a registrar for mediation, at any stage of the proceedings. This new rule is in addition to the existing rule which allows the court to refer matters to mediation by a judicial registrar.

Other amendments to the County Court Civil Procedure Rules 2018 under the County Court (Chapter I Miscellaneous Amendments) Rules 2021 have already commenced. These concern the way affidavits and exhibits are prepared and filed. See Affidavits, Annexures and Exhibits on both the Acting for the plaintiff and Acting for the defendant matter plans in the By Lawyers County Court (VIC) publication for more information.

A third tranche of amendments to the rules will commence on 1 March 2022. These deal with the titles and nature of the lists in the Commercial Division. By Lawyers County Court publication will be further amended to reflect these changes in due course.

New By Lawyers platform coming soon!

by

New By Lawyers platform

The By Lawyers website and LEAP Companion Product is about to undergo several significant new improvements! We are excited to announce a new major release of our By Lawyers platform.

The new platform will be rolling out in February.

Apart from a bright new look with refreshed branding, the functionality of our content will improve dramatically. Our practical publications will be faster to access and easier to use, including a super-powered new search!

Using By Lawyers, over 4,000 Australian law firms already enjoy practice more with practical Matter Plans, Commentary, Precedents and Reference Materials, which contain active hyperlinks to relevant legislation and cases. By Lawyers publications assist every member of the firm to conduct matters and create value for the client.

Offline for a short while

To enable this upgrade there may be a short period during which you will not be able to access your By Lawyers subscription. We appreciate your patience. The upgrade will be done over a weekend to minimise any operational impacts.

Feedback is welcome

You know we love to hear from our subscribers about our content! Well that applies to our platform too. Once it is up and running, please let us know what you think of the new website and the LEAP Companion Product. As always, By Lawyers will listen and respond to all feedback from our users and strive for constant improvement. Its one of the ways we help you enjoy practice more.

 

REIQ contracts – QLD

by

In line with recent REIQ contracts amendments and regulatory requirements, new commentary and precedents have been added to the By Lawyers Conveyancing (QLD) publication.

The new content in both Sale and Purchase guides relates to:

Unilateral right to extend the settlement date

From 20 January 2022 the new REIQ Houses and Land Contract 17th edition and Residential Community Title Contract 13th edition  provide in a new clause 6.2 the ability for either buyer or seller to extend the settlement date for up to five business days if they are unable to settle.

The new clause allows a party to extend settlement by giving an extension notice to the other party, without any requirement to produce supporting evidence detailing the reasons for the extension. The notice must be given in writing prior to 4pm on the scheduled settlement date, must nominate a new settlement date and state that time is of the essence.

More than one extension notice may be given but the settlement date nominated in a notice cannot be later than 5 business days after the scheduled settlement date.

A new precedent Extension Notice can be found on both the Sale and Purchase matter plans within folder F.

Smoke alarms

From 1 January 2022, dwellings or residential units offered for sale must have smoke alarms installed in accordance with the Fire and Emergency Services Act 1990 and Building Fire Safety Regulation 2008. Clause 7.8 of the new editions of the REIQ contracts imposes an obligation on the seller to install compliant smoke alarms in any dwelling on the land or lot, prior to settlement. If not met, the buyer is entitled to an adjustment on settlement of 0.15% of the purchase price.

Pool compliance certificates

Clause 5.3(1)(e) of the new editions of the REIQ contracts require a seller to provide a pool compliance certificate for a non-shared pool on the land at settlement. The only exception to this obligation is if a Notice of No pool Safety Certificate is given to the buyer prior to contract.

Failure to provide a pool compliance certificate under clause 5.3(1)(e) will mean the seller is not ready, willing, and able to settle and the buyer may terminate the contract.

Updates

Apart from new commentary and precedents in the Purchase and Sale guides, the detailed 1001 Conveyancing Answers (QLD) publication has also been updated accordingly. This is available in the reference materials folder at the top of all By Lawyers QLD conveyancing and property matter plans.

1 January updates – All states

by

1 January updates are always a big focus for By Lawyers. While the profession takes a well-earned break By Lawyers remains hard at work ensuring our publications are updated for legislative and regulatory changes that take effect from the new year.

Updates

This year’s 1 January updates for relevant jurisdictions include:

Land tax

In New South Wales and Victoria, land tax is calculated for the calendar year. Threshold values increase annually.

In New South Wales, the 2022 threshold combined land value has increased to $822,000 for all liable land. Special trusts and non-concessional companies are excepted. A marginal tax rate of 1.6% of the aggregate taxable value above the tax-free threshold, plus $100 applies from 1 January. If the aggregate taxable value exceeds the premium rate threshold of $5,026,000 then $61,876 is payable, plus a marginal tax rate of 2% over that amount.

In Victoria, the tax-free threshold for general land tax has increased to $300,000. The trust surcharge threshold remains at $25,000.

All relevant commentary and precedents in the By Lawyers Conveyancing and Property and Trusts guides for each relevant state will be updated for these new threshold amounts from 1 January.

By Lawyers Contract of sale of land

The 2022 edition of the By Lawyers contract will be available 1 January in the Sale of real property publications for Victoria and New South Wales. The contract is located in the Contract folder on the matter plan.

Leases and subleases

In New South Wales, Victoria, Queensland, South Australia and Western Australia the 2022 editions of lease and sub-lease precedents will be available from 1 January. these are found in the Leases – Act for Lessor section of each Leases publication.

Keeping up to date

In addition to our 1 January updates, By Lawyers updates our publications for 1 June and other regulated adjustments where necessary.

Of course we always update our content for relevant legislative amendments and other legal developments throughout the year, in all jurisdictions, as required.

Keeping up to date is one of the ways By Lawyers help our subscribers enjoy practice – and holidays – more!

The team at By Lawyers wishes everyone a prosperous and safe 2022.

Spent convictions – VIC

by

The Spent Convictions Act 2021 (Vic), along with the Spent Convictions Regulations 2021 (Vic), establishes a legislative scheme for criminal convictions to lapse after a set period automatically.

The commencement of this legislation on 1 December 2021, brought Victoria into line with the other states which already have such a scheme.

Employees and job candidates have rights under the Act, relating to an employer’s access to their criminal records. When particular criminal convictions lapse they may not be used as a basis for making decisions about a person’s employment. This generally applies to less serious offences.

Convictions which have lapsed under the legislation will not appear on a police record check unless the check is for certain types of employment, such as working with children. Specific provisions under some legislation, for example an application for a firearms licence, will still require full criminal histories to be disclosed.

Convictions for offences which are not deemed serious are eligible to be spent automatically after a 10-year crime-free period, for offences committed as an adult. The period is 5 years for offences committed as a minor.

The Spent convictions commentary has been updated in the By Lawyers Employment Law and Magistrates’ Court – Criminal (Vic) guides.

Wills guide reviewed – WA

by

The continuing commitment of By Lawyers to updating and enhancing our publications has seen the Western Australian Wills guide reviewed.

Subscribers using this popular publication will benefit from 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 and enhancements to commentary also include:

  • 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

  • Letter to client to confirming instructions
  • Instructions for signing
  • Letter reminding client that will is ready for signing

Other resources in the Wills guide reviewed

Links have been added to the By Lawyers reference materials Other trusted and useful resources, which can be found in the Reference materials folder on the matter plan and at the end of the full commentary.

Sexual harassment – FED

by

New provisions for the prevention of sexual harassment and bullying in the workplace have commenced.

Part 6-4B of the Fair Work Act 2009 (Cth) now provides that workers can apply to the Fair Work Commission for orders to stop sexual harassment as well as workplace bullying. To be eligible to make an application a worker must be employed in a constitutionally-covered business.

There is no time limit for making an application for an order to stop bullying or sexual harassment at work. Section 789FF of the Fair Work Act 2009 provides that for the Fair Work Commission to be able to make an order there needs to be a risk that the applicant will continue to be bullied or sexually harassed at work. If the worker no longer has a connection to the workplace, an order cannot be made as there is no future risk of the relevant behaviour occurring.

‘Sexually harass’, for these purposes, has the same meaning as in s 28A of the Sex Discrimination Act 1984 (Cth).

Examples of sexual harassment include:

  • inappropriate behaviour including staring, leering, loitering or unwelcome touching;
  • suggestive comments, jokes or gestures based on sex or a person’s private life or body;
  • communicating sexually explicit material in person or electronically.

The objectionable conduct must occur at work, which is not defined but is tied to work activities wherever they occur and is not limited to the confines of a physical workplace. It includes entering, moving about and leaving a workplace.

The application needs to be lodged with the Fair Work Commission using the prescribed form: Application for an order to stop bullying or sexual harassment (or both).

The employer needs to respond within 7 days of being served using the prescribed form: Response from an employer or principal to an application for an order to stop bullying or sexual harassment (or both).

The alleged perpetrator will receive a copy of the application and be invited to respond within 7 days using the prescribed form: Response from a person named as having engaged in bullying or sexual harassment (or both).

All the prescribed forms are available in the Workplace bullying and sexual harassment folder on the matter plan in the By Lawyers Employment Law publication. The commentary has also been updated accordingly.

Connect with us