ByLawyers News and Updates

Formatting of By Lawyers deeds and agreements

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Over the next month or so you will notice a minor change to the formatting of the By Lawyers precedent deeds and agreements.

By Lawyers has received and responded to feedback that the line under headings in deeds and agreements can be troublesome when users are customising precedents. The line under headings is currently a ‘top border’ applied to the 1st paragraph of the clause. We are swapping that line to a ‘bottom boarder’ of the heading paragraph, which is a more intuitive – and hopefully a less troublesome – place for the line formatting to be applied.

We all know formatting can be tricky. If you are having trouble please see our Tips and tricks for working with By Lawyers precedents, found in every publication, at the end of folder A. ‘Getting the matter underway’ on the matter plan. If you are still stuck – don’t hesitate to call or email us; our team is here to help you!

 

NSW – Estates – Can a beneficiary be evicted?

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In the recent case of Kennedy v Kennedy [2018] NSWSC 1087 Davies J struck out a defence and granted liberty for the executors to obtain default judgement and issue a writ of possession where one of five adult beneficiaries had been residing in the deceased’s house for about two years since the date of death, despite being requested by the executors to vacate. His Honour observed that:

[7] In my opinion the defences filed by the defendant do not disclose any defence to the claim by the executors. Where there is no lease in place, except if a claim was made in the nature of some form of constructive trust, it is doubtful if there could be any defence to the right of the executors to get in all of the estate property including by obtaining possession of the land.

It is the duty of the executor or administrator to get in the estate. If necessary the executor or administrator can apply to the court for a declaration and/or a writ of possession.

This applies where a beneficiary is in occupation of real property owned by the estate without permission and refuses to vacate.

This case has been added to the Estates chapter of By Lawyers 101 Succession Answers (NSW).

Wills and powers of attorney – Costing & Storage

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Costing wills and powers can be difficult. It is often not clear at the outset the extent of work which will be required. While many wills are ‘simple’, the complexity of a client’s financial position or their family arrangements can mean hours of time spent taking and confirming instructions and sometimes reviewing documents such as their self managed superannuation fund deed, or a family trust deed. The intended uses for a power of attorney are many and varied and may involve detailed advice. Any issues of capacity may also add significant time and expense.

Is a flat fee for a ‘simple’ will or a ‘standard’ power appropriate, or should an hourly rate apply?

Are there any scale costs that can be used as a guide? What costs disclosures must be made to the client?

What arrangements should be made for the storage of original wills?

How should copies of documents be managed?

These practical questions are dealt with in new sections of commentary on Costs and Storage in our NSW, Vic, Qld, SA, ACT, Tas and WA wills and powers publications.

All of these publications include the By Lawyers wills and powers Costs Agreements and example invoices, which meet costs disclosure requirements and include disbursements, billing and payment arrangements, client rights notice and solicitor’s lien provisions, among others.

Superannuation and downsizing

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The By Lawyers Self Managed Superannuation Guide has been updated to provide greater detail about contributions to superannuation as a result of residential downsizing.

From 1 July 2018, superannuation fund members aged 65 and over who downsize by selling their principal place of residence are able to contribute up to $300,000 from the proceeds of sale into their superannuation fund as a non-concessional contribution. Both members of a couple can take advantage of the concession for the same family home, allowing up to $600,000 per couple to be paid into superannuation from the sale proceeds of the family home.

Downsizing contributions are exempt from inclusion in the $1.6 million total superannuation balance cap. Instead, the contribution is included when the total superannuation balance is recalculated at the start of the new financial year.

This measure is available to superannuation fund members who have held their principal place of residence for 10 years or more, for contracts that are exchanged after 1 July 2018. The contribution must be made to the fund within 90 days of settlement of the sale.

Importantly, despite the term ‘downsizing’, there is in fact no requirement to purchase another home.

For more information about superannuation contributions, see the By Lawyers Self Managed Superannuation Funds Guide.

Client Details and Verification of Identity certificate

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We have added a new Client Details and VOI precedent to every one of our publications. This handy document is designed to be used at the first point of contact with a client.

The front page is for the client’s general contact information and identification. The second page includes the formal Verification of Identity Certificate.

The Client Details page can be completed by the client while they are waiting to meet with the solicitor, saving time for the client and the practitioner in the process.

Having the Client Details and VOI as a separate document leaves the Retainer Instructions for collecting the matter-specific information.

We have placed the new precedent immediately before the Retainer Instructions on each matter plan.

We think this will simplify and improve the client engagement process. We would love to hear any feedback from firms as they use the new document.

By Lawyers Alerts – reducing stress

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To reinforce the currency of our publications, we have extended our Alerts system.

At By Lawyers we are committed to reducing stress for small law firms and ensuring practitioners have what they need, when they need it. Our matter plans provide you with the precedents you are looking for and our commentaries give you as much  – or as little – support as required.

Most importantly, our publications always include the latest in legislative and procedural changes.

Alerts have always been posted in our publications as a way of letting you know, at a glance, of any recent updates to the law and advising you when our precedents and commentaries have been updated. However, sometimes there simply aren’t any changes that you need to know about – and we think you need to know that, too.

From now on, where there are no changes current, our publications will display the reassuring flag ‘Alerts – Nil’.

‘Alerts – Nil’ at the top of a matter plan indicates that there have not been any recent changes in that area of law.

At By Lawyers all members of our editorial team have dedicated areas of law to follow, with state-based cross-checks, ensuring no legislative changes escape our attention. Notifications from legislative, courts and law society sources, to name only a few, are checked and cross-checked daily. When we need to update anything, the digital nature of our publications means that we can post updates – and issue an alert – immediately.

We will always inform you when there is something you need to know. Otherwise, you have no need to worry!

Conveyancing – GST withholding – Supplier notification

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Where a purchaser is required to make a GST withholding payment, the vendor (supplier) is required to provide the purchaser with a written notice, called a Supplier notification, containing information to help the purchaser comply with their GST withholding obligations.

The notice must be provided to the purchaser on or before the supply. This notice can be incorporated into the contract for sale, or provided separately.

To make compliance easy, we have added a Supplier notification precedent in all of the By Lawyers Conveyancing Sale Guides, under the heading ‘The contract’.

Further information on the new GST withholding requirements for residential properties – and related precedents – can be found in all By Lawyers Sale and Purchase Guides.

Don’t worry, By Lawyers always keep you up to date!

Motor vehicle accident – NSW – Calculating interest

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New commentary has been added to the Motor Vehicle Accident (NSW) Guides regarding how to calculate a claim for interest for the period from when the loss to which the damages relate was first incurred, until the date on which the damages are awarded.

The amount of interest is to be calculated in accordance with the principles ordinarily applied by a court for that purpose. The rate of interest is to be three-quarters of the rate prescribed for the purposes of CPA s 101: s 4.16(5) – with the “prescribed rate” being the rate of interest prescribed by reg 36.7 of the UCPR.

Conveyancing NSW – Option to purchase

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The ‘Option to purchase’ precedent in the By Lawyers Conveyancing – Sale Guide for NSW has been updated so that the s 66ZH Notice in relation to cooling off rights is now incorporated in the document rather than needing to be separately provided.

The wording adopted complies with Form 2, Schedule 5 of the Conveyancing (Sale of Land) Regulations 2017.

We are grateful to one of our user firms who suggested this practical amendment. At By Lawyers we love getting feedback from our users! You can always email us at askus@bylawyers.com.au.

NSW – Family provision – Interim orders

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Prompted by a recent Supreme Court case, we have added a new section called Interim provision to our 101 Succession Answers Reference Guide, which is included in all of the By Lawyers succession related publications for NSW –  Estates; Wills, Powers of Attorney, Appointment of Enduring Guardian & Advance Care Planning and Family Provision Claims.

Pursuant to s 62 Succession Act 2006 it is possible for a plaintiff who seeks provision from an estate as an eligible person under Chapter 3 to make an application for interim provision,
before – in fact while awaiting – the final hearing. Success in such applications is however very rare.

Before it can make an order for interim provision, the court must be ‘of the opinion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order’. The cases suggest this is a very high bar indeed, even for a plaintiff with dire financial need.

We invite you to explore the Family Provision section of 101 Succession Answers to find out more on this interesting topic.

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