ByLawyers News and Updates

Homemade wills – NSW

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The Supreme Court of NSW recently considered homemade wills in Jones v Robinson & Ors [2019] NSWSC 932.

Particularly in question was the appropriate interpretation where ambiguity existed in the document.

The Court affirmed the ‘well accepted’ principles from Justice Isaacs in Fell v Fell (1922) 31 CLR 268 on the construction of wills and further noted that:

‘With any homemade will the language used will often be informal, but the plain meaning of words should not be ignored. Moreover the instrument has to be viewed as a whole. Inaccuracies or inconsistencies should be looked at so as to best preserve a testator’s intention and that approach should be a predominant consideration in the construction of the instrument’.

In determining that the testator’s failure to deal with the residuary of her estate did not create an intestacy, the Court stated that ‘The mere fact that the creator of a homemade will did not contemplate every legal contingency or the potential of residue does no more than highlight that the maker is not a lawyer’.

Of course the mere fact that ambiguity existed and an expensive court case was required to resolve it, tends to support the value of wills drafted by lawyers over homemade wills. The By Lawyers Wills publication contains carefully drafted wills precedents, a library of additional clauses and practical commentary written by experienced lawyers, to assist practitioners who are preparing wills for their clients. The By Lawyers Wills publication also includes the By Lawyers Reference Guide 101 Succession Answers – to which Jones v Robinson has now been added.

Training and supervision – Podcast

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Training and supervision of junior professional staff is a critical area for law firms. It impacts directly on many key areas of the practice: quality and consistency of output, productivity, team harmony and staff retention – and perhaps most importantly of all client satisfaction.

Our Managing Director Brad Watts recently shared some thoughts, as part of a LEAP global podcast series, about how By Lawyers practical legal guides can assist with training and supervising junior lawyers. Brad has 25 years of legal practice experience and is one of the contributors to the By Lawyers Practice Management guide.

Listen to the podcast to hear how By Lawyers guides can assist firms and individual solicitors with their training and supervision requirements.

By Lawyers guides include detailed commentaries and reference materials which are powerful tools to help ensure junior lawyers  have the guidance and support they need, improving productivity and retention of staff, while easing the pressure on principals and more senior lawyers.

Enjoy practice more, with By Lawyers.

 

 

1 July updates – FED and 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 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!

Retirement Villages – NSW

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From 1 July 2019 the Retirement Villages Amendment Act 2018 amends the legislation relating to retirement villages in NSW.

The amendments provide further protections for current and prospective residents. These amendments are intended to increase transparency, improve dispute resolution, provide more certainty around costs and strengthen villages’ safety and emergency planning and procedures.

The reforms include:

  • annual contract ‘check-up’ meetings;
  • enhanced sharing and publication of information;
  • binding Rules of Conduct for Operators of Retirement Villages with which operators must comply. These supplement the provisions in the Act and the regulations, with certain rules to commence 1 January 2020;
  • provisions for mediation of disputes;
  • new requirements for emergency plans, annual evacuation exercises and display of key safety information;
  • new auditor appointment processes.

Yet to commence are provisions requiring village operators to prepare and maintain an asset management plan for items of capital at the village for which the operator is responsible.

See the By Lawyers Retirement Villages (NSW) publication for further details.

Insolvency To Do lists – FED

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The By Lawyers Bankruptcy and Liquidation guides have been updated with the inclusion of four Insolvency To do lists.

These new precedents provide practical guidance for practitioners as they progress through a matter.

The To Do lists provide helpful prompts for each important step to be taken in a matter when acting for either the creditor or the debtor in both personal and corporate insolvency matters, including:

  • Liquidation;
  • Winding up;
  • Deeds of company arrangement;
  • Debt agreements;
  • Personal insolvency agreements; and
  • Bankruptcy proceedings.

The new To Do lists can be found in folder A. Getting the Matter Underway in the By Lawyers Bankruptcy and Insolvency guides and will assist practitioners in safely and efficiently managing their matters.

E-conveyancing from 1 July 2019 – NSW

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In a continuation of the transition to E-conveyancing version 5 of the Conveyancing Rules replace version 4 from 1 July 2019.

Version 5 of the rules provide that all mainstream dealings including transfers, mortgages, discharges of mortgage, caveats, withdrawals of caveat and transmission applications, or combinations thereof, must be lodged electronically when signed on or after 1 July 2019, except where a waiver applies.

Waivers

Waivers apply to certain transactions that are not able to be lodged electronically.

The following waivers which operate from 1 July 2019 in conjunction with Conveyancing Rules version 5 have now been published:

If eligible for a waiver, a Conveyancing Rules Exception form will need to be complete at the point of lodgement. This form is available in the sale and purchase matter plans.

An Alert has been added to the by Lawyers Conveyancing Sale and Purchase matter plans regarding the 1 July 2019 mandate.

Keep up to date with By Lawyers

By Lawyers keep you up to date with E-conveyancing. A brief explanation of the transition to E-conveyancing in the By Lawyers Conveyancing Sale and Purchase matter plans can provide further assistance.

Improving written submissions – All states

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A new article ‘Improving Written Submissions’ by Judge Alan Troy of the District Court of Western Australia has been added to the Reference Materials folder on the matter plan in all By Lawyers Litigation guides.

His Honour’s article, first published in Brief, the Journal of the Law Society of Western Australia, is full of valuable tips for improving written submissions. It will greatly assist practitioners when they are preparing submissions for all types of matters, in all courts.

The article emphasises the need to use clear and plain English, to be brief and succinct, to persuade the court via credible legal argument and to logically structure the submissions. His Honour recommends stating the main point of the argument at the outset and introducing each topic with a brief summary of the real substance of the issue to which it relates.

Drawing on his substantial experience both as an advocate and on the bench, Judge Troy gives specific and very practical guidance on how practitioners can best construct written submissions with these tenets in mind. His Honour’s tips include the use of a chronology, ways to structure both the text and the arguments and the importance of ruthless final editing.

By Lawyers are very pleased to make this helpful article available to our subscribers across Australia.

Privacy Act notifications – FED

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Two helpful new precedents have been added to the By Lawyers Practice Management guide to assist law firms required to make Privacy Act notifications to the Office of the Australian Information Commissioner.

The Office of the Australian Information Commissioner has indicated that it considers law firms are subject to the mandatory disclosure provisions.

Privacy Act notifications are required where data breaches are likely to result in ‘serious harm’ to clients. These must be promptly reported to the OAIC and to the affected clients.

Notification is mandatory if the firm is aware of reasonable grounds to believe an eligible data breach has occurred. Firms becoming aware of a breach must make a rapid assessment, remediate if possible, then notify if required, without delay.

There is no specified form of notification to the affected individuals. A precedent is now provided on the matter plan – see Letter to client re Privacy Act data breach notification.

Notification to the Office of the Australian Information Commissioner should be done via the online Notifiable Data Breach form on the OAIC’s website, also linked to from the matter plan. However, sometimes the very data breach which requires the notification to be made can also make reporting online impossible. To assist in such circumstances, a precedent letter is now provided on the matter plan where the online form cannot be accessed – see Letter to OAIC re Privacy Act data breach notification.

Traffic offence penalties – NSW

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Traffic offence penalties in NSW have changed. The By Lawyers Traffic Offences – Local Court NSW Guide has been updated in relation to recent penalty increases for various drug and alcohol offences. This applies to the commentary for alcohol and drug offences, the appendix of penalties and the retainer instructions.

The appendix to the Traffic Offences NSW commentary ‘Traffic offences and penalties – Drugs and alcohol‘ is a very handy resource that provides a summary of current key information relevant to sentencing for specific common offences, with links to applicable sections of the Act and any relevant programs.

The ‘Retainer Instructions – Traffic offences‘ precedent, also found in the Traffic Offences Guide, contains an ‘Offences and Penalties’ table which sets out the current fine, any applicable custodial penalties and the disqualification periods for most common alcohol, speeding and vehicle use offences. These useful details are readily available when needed – at the point of taking instructions from the client, who will want to know the applicable traffic offence penalties immediately.

All By Lawyers Guides contain practical and up to date commentary and precedents designed to help practitioners work faster and smarter. A team of over 45 legal professionals keep our content updated to reflect legislative changes, so our users can be confident that they’re working with the latest forms, precedents and commentary.

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